^ii:i!fe"M;p!'iiV:,;-i'ii>ii'i!i S:i'r.:'Jviv';Vi r 1 ; ■,<.Vi,':i'\''''':l'\'Mi-:\Va't \ < I* frtrtt+if M^."rr SfShS - H^3 (Jnrtif U Ham ^rlyool IGtbtatjj The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020198325 TREATISE ON THE LAW OF INJUNCTION AS ADMINISTERED IN THE COTTETS or TTTE CnsriTED STATES AND ENGLAND. BY JAMES L. HIGH, COUNSELOR AT LAW. CHICAGO : OALLAGHAN AND COMPANY. 1874. A-A^^ X^rrT~ Entered according to Act of Congress, in the year 1873, by James L. High, In the Office of the Librarian of Congress, at Washington. TO The Hon, Thomas Drummond, Circuit Judge OF THE United States, for the Seventh Judicial Circuit, who for nearly a quarter of a century has adorned the bench and shed lustre upon the profession, this work is respectfully dedicated, by TjiE Author. PREFACE. The jurisdiction of courts of equity by the writ of injunc- tion, though of English origin, is largely the result of Amer- ican growth and development. Perhaps no branch of equity jurisprudence owes more to the decisions of Amieriean 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 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 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 inap- plicable here, has seemed to the author to create an additional necessity for a work which should be based upon the decis- ions of both countries, and which should present the general principles 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 en deavored to present the principles imderlying the actual decis PREFACE. ions 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 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 boot making, the tendency among lawyers is to use text-books merely as guide-posts, to direct them to the foun- tain head of our jurisprudence, the reports. But he has written in the firm conviction that the beneficent system ot equity, whose "strong right arm" constitutes the subject matter of this work, is destined to outlive the iconoclasic of modern law reformers and codifiers, and to constitute foi all time an integral part of our jurisprudence. That his work is without blemishes, he has not dared to hope ; but that i1 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. CmoAGO, January 1, 1873. CONTENTS. THE BEFEBENCEB ABE TO THE SECTIOKa CHAPTER I. Bjsotiom. DbTINITION, NaTUBE AliTD PuEPOSB OF THE WbiT, . . 1-43 CHAPTER II. Op iNJUNcrriOKS to Resteain Pbocbbdings at Law BBFOEB Judgment, 44-83 I. — Grounds of the Jurisdiction, 44-56 II. — Suits in Foreign Courts, 57-61 III. — Suits Pertaining to Real Estate, 62-68 IV. — Special Cases, 69-83 CHAPTER III. Of Injunctions to Resteain Peoceedings at Law AFTEE Judgment, 84-307 I. — General Features of the Relief, 84- 96 II. — Cases where Defense should have been made at Law, 97-108 III. — Of Judgments obtained through Fraud, . . . 109-118 IV. — Of Accident, Mistake, Ignorance and Surprise, 119-128 V. — Of Irregular, Erroneous and Void Judgments, . 129 13i VI. — Of Judgments upon Usurious Contracts, . , . 132-13S VIU OONTENIB. CHAPTER III.— CONTINDED. Sjsotiok. VII. — Of Judgments upon Gaming Contracts, . . 134-135 VIIL— Of Set-off, 136-142 IX.— Of Judgments as affecting Title, 143-156 X. — Of the Court in whicli the Judgment was ren- dered, 157-161 XI. — Of Injunctions against Awards, 163-164 XII. — Of Judgments by Default and Confession, . 165-167 XIII.— Special Cases, 168-207 CHAPTER IV. Of iNJimcTiONS IN AID OF Peocebdings IN Bankeuptcy, 208-226 CHAPTER V. Of Injunctions in Ecclesiasticai Mattees, . . . 227-246 CHAPTER VI. Of Injunctions affecting Real Peopbett, .... 247-352 I.— General Features of the Relief, 247-256 II. — Injunctions in aid of Possession 257-265 III. — Of Judicial Sales, where Judgment Debtor has no Title, 266-268 IV.— Cloud upon Title, 269-277 V. — Of Injunctions to restrain the Collection of Purchase Money on Failure of Title, . . . 278-308 VI.— Mortgages and Deeds of Trust, 309-323 VII.— Ejectment, 324-333 VIII. — Special Cases, 334-352 CHAPTER VII. Of Injunctions against Taxes, 353-386 I. — General Outlines of the Relief, 353-366 II. — Cloud upon Title, 367-368 CONTENTS. EC CHAPTER VII.— CONTINITBD. Seotiok. III. — Taxes imposed by Municipal Corporations, . . 369-375 IV.— Bounties, 376-378 v.— Special Cases, 379-386 CHAPTER VIIl. Of Injunctions against Highways and Railuoads, 387-418 CHAPTER IX. Of Injunctions to stay Waste, 419-457 I. — Origin and Nature of the Jurisdiction, . . . 419-425 II.— Destruction of Timber, 426-431 III.— Equitable 'Waste, 432-437 IV.— Parties, 438-447 v.— Special Acts of Waste, 448-457 CHAPTER X. Op iNJUNCTtONS against Trespass, 458^84 I. — General Features of the Jurisdiction, .... 458-462 II.— Cutting Timber, 463-467 III.— Trespass to Mines, 468-472 IV.— Special Acts of Trespass, 473-484 CHAPTER XI. Op Injunctions against Nuisancb, 485-543 I. — Grounds of the Jurisdiction, 485-489 II. — Nuisances to Buildings, 490-500 III. — Nuisances to Water, 501-518 IV.— Public Nuisances, , 519-527 V. — Roads and Railways, 528-534 VI.— Bridges, 535-536 VII. — Special Nuisances, 537-543 X CONTENTS. CHAPTER XII. Section. Of Injunctions foe the Protection op Easements, 544 — 569 I.— Leading Principles, 544—551 II.— Easements in Light, 553 — 555 III. — Easements in Water, 556 — 564 IV.— Right of Way, 565—569 CHAPTER XIII. Of Injunctions foe the Peotection of Feanchises, 570-601 L— Grounds of the Relief, 570-574 II. — Roads and Railways, 575-579 III.— Bridges, 580-586 IV.— Ferries, 587-591 v.— Special Cases, 592-601 CHAPTER XIV. Op Injuncticns against the Infeingement of Patents, 603-640 I. — Nature and Grounds of the Jurisdiction, , . . 603-609 II. — Effect of prior Adjudications, 610-615 III. — Considerations governing the Court in granting the Relief, 616-640 CHAPTER XV. Of Injunctions against the Infeingement of Copt- eights, 641-671 CHAPTER XVI. Of Injunctions to eesteain the Pieact of Teade Marks, 672-694 CONTENTS. XI CHAPTER XVII. Sectioh. Of Injunctions pertaining to Contkacts and theie Enforcement, 695-746 I. — Nature and Grounds of the Jurisdiction, . . 695-708 II. — Injunctions against the Negotiation and Col- lection of Promissory Notes, 709-712 III. — Injunctions against the Breach of Negative Contracts, 713-735 IV.— Contracts in Restraint of Trade, 736-745 CHAPTER XVIII. Of the Parties for and against whom the Jurisdic- tion IS exercised, 746-846 I.— Of Parties in General, 746-760 II. — General Corporations, 761-782 III. — Municipal Corporations, 783-795 IV.— Public Officers, 796-809 v.— Partners, 810-826 VI. — Executors and Administrators, 827-831 VII.— Sureties, 832-838 VIII.— Husband and Wife, 839-846 CHAPTER XIX, Of the Violation of Injunctions, 847-877 I.— Effect of the Writ and its Violation, .... 847-855 II. — What constitutes a Violation, 856-866 III.— Remedy for Violation, 867-877 CHAPTER XX. Op the Dissolution of Interlocutory Injunctions, 878-945 I. — General Grounds of a Dissolution and its Effect, 878-895 II. — Dissolution upon the coming in of the Answer, 896-908 XU CONTENTS. CHAPTER XX.— CoNTunjED. Section. III. — Dissolution of Injunctions against several joint Defendants, 909-915 IV. — Dissolution of Injunctions against Proceedings at Law, 916-921 V. — Dissolution of Injunctions aifecting the Title to Realty, 923-936 VI. — Special Grounds of Dissolution, 937-945 CHAPTER XXI. Of the Bon-d and Remedy thebeon, 946-981 I.— Of the Bond in General, 946-954 II. — Remedy upon the Bond, 955-961 III. — Damages, 963-981 CHAPTER XXII. Ov Peacticb, 983-1019 I- — Practice in granting Injunctions, .... 983- 996 II. — Amendments, 997-1000 III. — Practice in dissolving Injunctions, .... 1001-1019 TABLE OF CASES CITED. TUS BBFEBEHCES ABE TO THB PAGE8. Paoe. Abbot V. American 401 Abbott «. Allen . 161, 167 Abernethy «. Hutcbinson 377 Ableman v. Roth 56, 199 Abraham v. Bubb 341 Abrams ». Camp 63 Ackerman «. Hartley 249, 250 Adams v. Hudson 534 Agard «. Valencia 105 Ah Thaie d. Quau Wan 563 Ainsworth d. Bentley 440 «. Walmsley 891 Airs V. Billops 148 Akerly «. Vilas 44 Akrill «. Selden 4, 31, 263 Albany ■». Brownell 231 Albany City Bank ®. Schermer- horn 538 Albro ■». Dayton 63 Alden v. Boston 126 Aldrich v. Howard 277 ®. Reynolds 560, 561, 563, 563 Allan B. Inman 489 Allen 11. Board 391, 447 v. Burke 413 «. Medill 87, 445 ■V. Philips 173 ®. Taylor 439 Almy V. Piatt 448 Amelung v. Sefekamp 335, 316, 317 American Cp. v. City of Eliza- beth 340 Ames V. Myers 64 Amick «. Bowyer 164 Amoskeag Co. «. Spear 389 Anderson v. Biddle 111 V. Commissioners 473 «. Prye 198 Pase. Anderson v. Harvey 261 V. Reed 527 V. Tydings V. Walton 58 491 Andrews v. Fenter 56 Angell «. Draper 19, 60, 146 Angler «. May 583 11. "Webber 483 Anonymous 16, 480, 485 Anshutz v. Anshutz 495 Ai-mistead v. "Ward 112, 489, 490, 491 Armstrong «. Hickman 77 V. Sanford 35, 155, 177, 527 Arnold v. Klepper 369 Arthur «. Case 311 Ashby «. Chambers 561 v. Tureman 555 Ashe 11. Johnson's Adm'r. 408 Assignees v. Wilkins 873 Aston v. Aston 241, 242, 243 Atkins v. Chilson 310 Atlantic «. Tredick 414 Attorney General «. Ancaster 539 ®. Bank 454 «. Bank of Niagara 458, 454 «. Carmarthen 451 V. Cbamberlane 289 v. Cleaver 272, 290 B. Cohoes 289, 290 v. Compton 443 V. Conservators 292 11. Forbes 201 11. Foundling Hos- pital 303 V. Great 454, 456 V. Great Northern 504 XIV TABLE OF CAEES CITED. Attorney General v. Hunter 393, 300 B. Johnson 290, 291 «. Lea's Heirs 273, 443 V. Liverpool 519 «. Marsh. 544 V. Mayor 10, 451 V. Metropolitan 393 «. New Jersey 8 ». Nichol 16, 272, 308 V. Oakland 516, 526, 527, 528, 529 «. Patterson 13 ». Pearson- 130 D.Perkins 373,276,448 V. Richards 443 V. Sheffield 7, 270 V. Steward 273, 374, 303 ®. Utica 15, 329 V. Welsh 131, 409 Attwood 1). Barham 413 Atwill B. Pcrrett 863 Auhurn «. Douglas 319, 321 Avery i>. Fox 284, 477 «. Onillon 519 B. Babcock ». McCamant 71, 72 V. New Jersey 15, 273, 274 Bach «. Goodrich 90, 153 Back ®. Stacey 308 Bacon b. Jones 337, 351, 353 1). Spottiswoode 357 Bagg «. Detroit 215 Bagshaw i). Eastern 454 Bailey «. Devereux 84 Baily i). Taylor 373 Baird i). Shore Line 298 Baker ». Taylor 369, 570 Balch D, Wastall I9 Baldwin v. Buffalo 235 i>. Darst 189 V. North Branford 312 Ballard «. Appleton 311 Ballou V. Inhabitants 287 Baltimore v. Wheeling 459, 534, 577 Baltzell 1). Randolph 57 Bank «. Hancock 96 1). Hill 50 ■B. Rutland 41 1). Schultz 91 Bank of Orleans «. Skinner 24,567,568,573 United States tj.Schnltz ^ • 37, 155 Washington i>. Arthur 411 Banks v. Gibson 399, ^85 Baptist Church d. Witherell 130, 140 Pagt:. Baragreea. Cronkhite 60 Barber •». Reynolds 115 Barfield v. Nicholson 863, 382, 417, 440, 510 Barker «. Elkins 78 Barnard v. Gibson 357 1). Wallis 306 Barnes «. Calhoun 276 !). Racine 291, 447 Barnett v. Johnson 310 Barret I). Blagrave 419 Barrow v. Davis 195 V. Richard 428 v. Robichaux 78, 117 Barry «. Barry 253 Bartholomew 1). Harwinton 313, 213, 546 Bartlett v. Loudon 161, 168 Bartlette «. Crittenden 377, 879 Basoom «. Basoom 494 Bateman ®. Willoe 55, 57, 61, 62 Bath v. Sherwin 35 Battle V. Stephens 24, 573 Baugher ». Crane 245 Bayless i). Orne 459 Beaird v. Foreman 63 Beal «. Gibson 543 Beale ». Seiveley 161, 162, 167 Bealey v. Shaw 379, 383 Beatty v. Kurtz 189, 140, 267, 301, 448, 449 Beauchamp v. Board 469 ■0. Marquis of Hunt- ley 40 i>. Putnam 32 V. Supervisors „ ,. , 543,543,561 Beckford «. Kemble 39, 41 Beecher d. Bininger 126 Behn «. Young 13 Behrens u. McKenzie 563 Bein «. Heath 564 Belknap v. Belknap 475, 470 Bell V. Calhoun ' 410 V. Gamble 37 «• Hull 520, 525 V. Locke 397_ 393 «• Ohio 266, 295 V. Walker 371 Bellingslea v. Bradford 26 Bellona Company's Case 525 Beman v. Rufford 455^ 457 Bemis v. Upham 286' 287 Bennet ». Mnsgrove 19, 60,' 146 Bensley «. Mountain 230 Bentley « Joslin 555 Bently v. Bates 250 «. Dillard 53 Benton d. Roberts gg TABLE OF OASES OTFJ.). XV Berkeley i>. Brymcr Berry ■». Berry's Heirs Bethune v. Wilkins Bettison v. Jennings Betts V. DeVitre V. ■Williamsburgh Beveridge v. Lacey Beverly v. Sabin Bickford v. Skewes ®. Skews Biddle «. Ash Bigelow «. Andress 578 445 256 521 356 209 291, 447 196 342 525 809 19, 20, 448 V. Hartford 291, 292, 447 Big Mountain Appeal 183 Bill «. Sierra Nevada 13 Billingslea v. Gilbert 26, 543 Billups V. Sears 58 Binney's Case 462 Bird i>. Brancker 504 «. Lake 423, 434, 440 Birmingham «. Lloyd 262 Bishop of London -o. Weh 239 Blackwell v. Crabb 403 Blackwood v. Van Vleet 158, 249 Blake v. Blake 498 «. Brooklyn 209 V. White 491 Blakemore v. Glamorganshire 3, 5 Blanchard i>. Doering 314 Blatchford «. Ross 460 Bliss i>. Kennedy 311 V. Kice 286, 287 Blofeld ■». Payne 395 Blomfield «. Eyre 26 Blondheim ». Moore 25 Blood «. Martin 506 Bloomfield ». Snowden 571 Bloss, Me, 123 Blow «. Taylor 521 Blunt e. Patten 363, 365, 879 Blythe «. Peters 116 Board of Commissioners v. Elston 203 Bogert ». Haiglit 24, 572 Bogey «. Shute 235 Bohn V. Bogue 864 Boinay v. Coats 94, 151, 522 Boker v. Curtis 115 Bonaparte v. Camden 220, 221 Bond V. Kenosha 203 Bonnett «. Sadler 278 Bonser «. Cox 490 Boone «. Small 111 Booth V. Garelly 355 «. Rogers 558 «. Woodbury 312 Bootle i>. Stanley 505 Bordentown v. Camden 292 Borland «. Thornton 64 Page. Bosley d. McKim 13 D. Susquehanna 3, 5, 508 Boston V. Boston 319, 321 V. New Jersey 548 ■u. Nichols 581 V. Salem 319, 321 Boucicault v. Wood 378, 379 Bouldin «. Alexander 90, 153 ij. Mayor 315 Boultbee «. Stubbs 489, 490 Boulton -D. Bull 345 Bouton V. Brooklyn 306, 473 Bovill «. Crate 853 Bowden i>. McLeod 180 Bowie, Se 118, 136 Bowles «. Orr 89 Bowser «. Maclean 264 Bowyer ■». Creigh Boyd «. Brown 111, 118 357 V. Chesapeake 80,81 «. Lofton 190 v. Murray 10 Bradbury v. Beeton 403 Bradley v. Commissioners 476 Brady «. Waldron 178, 247 Braham ». Bustard 387, 888, 408 Brammer v. Jones 547 Bramwell v. Halcomb 366, 373 Branch Turnpike Co. v. Super- visors 24, 572 Brandreth «. Lance 376, 377 Brannum v. Ellison 164 Brawner «. Franklin 46, 184 Breckenridge v. McCormick 108 Brewer's Case 480 Bridson v. Beneoke 345, 358 Briscoe v. Allison 208 Brittain v. McLain 164 Brock 1). Connecticut 231 Bromley v. Holland 33, 37 Brooklyn v. Coney Island 331 ■». Masury 388 Brooks D. Bicknell 857, 580 «. Dent 488, 489 V. Norcross 339 V. Purton 584 Brown «. Best 283 V. Brown 495 V. Edsall 588 «. Folwell 236 ». Gorton 561 V. Jones 558, 559, 562, 563 V. Manning 306, 307, 446 II. Newall 519 «. Pacific 10, 444 V. Stewart 178, 246, 518 ■». Street 61 Brown's Appeal 22, 413 Brown's Case 16 XVI TABLE OF CASES CITED. Page. Browning «. Camden 320 Bruce v. President 272 Brumley d. Fanning 348 Brummel i). Hurt 90, 153 Brundred v. Paterson 571 Brunnenmeyer i>. Buhre 138 Brydges ®. Stephens 343 Bucianan v. Alwell 169 1). Howland 351, 357 V. Lorman 93, 161, 167 «. Marsh 145 D. Noliu 83, 411 Buckley i). Corse 28, 571, 573 Bucknall «. Story 306 Buckner «. Bierne 518 Bullen «. Ovey 505 Bullitt's Ex'rs. v. Songster's Adm'rs. 32, 161, 167, 169 Bumpus v. Plainer 161, 167 Bunbury v. Bvinbuiy 39, 41 Bunker v. Locke 178, 346 Buntain «. Blackburn 60 Burdett v. Hay 572 Burge «. Burns 59 Burgen i). Sharer 559 Burgess ». Burgess 394 1). Hills 404 v. Lamb 242 1). Smith 41 V. Wheate 12 Buries ». Popplewell 488 Burlington v. Spearman 207 Burnes n. Mayor 195 Burnet «. Cincinnati 196 Burnett «. Ohetwood 383 V. Phalon 389 Burnley d. Cook 355 Burpee i). Smith 70, 73 Burrel ii. Associate Eeformed Church 131 Burton «. Marshall 430 Bury V. Bedford 399 Bushby «. Munday 40 Butch «. Lash 31, 149 Butler 1). Burleson 433, 434 Butt V. Colbert 326 Butterworth ». Robinson 373 C. ■ V. Copley 343 Calderwood v. Trent 28, 114, 572, 573 Caldwell v. Cline 430 1). Vanvlissengen 342, 358 Calvert «. London 490 Camden -o. Stewart 45, 183 Cameron v. "White 144 Camilton v. Whitridge 301 Camp V. Bates v. Matheson Campbell ■». Briggs «. Edwards V. Gilman B. His Creditors PA8B. 251 53 57 77 415 548 V. Morrison 24, 567, 573 V. Scott 363, 364, 371 Campbell's Case 119, 123 Canal Company v. Railroad Company 228 Candee v. Deere 387, 389, 391 Candler v. Pettit 145 Canton v. Northern 407 Capehart «. Etheridge 114 V. Mhoon 527 Caperton v. Landcraft " 179 Cape Sable Company's Case 78, 79 Capner «. Plemington 453, 583 Cardinall v. Molyneux 535 Carey v. Smith 574 Carlin v. Hudson 90, 158 Carlisle v. Stevenson 357, 364 Carnes v. Nesbitt 441 Carr v. Weld 533 Carrioo v. Proman 165 Carrington v. Holabird 70, 71, 125 Carroll b. Farmers 34, 42, 580 Carron d. Maclaren 39 Carswell «. Macon 38 Carter v. Washington 581 Cartier v. Carlile 404 Caruthers i). Hartsfield 83 Cary v. Faden 363, 364 Casady e. Bosler 176 Casamajor «. Strode 253, 443, 539 Cassel V. Scott 81 Catlett ». McDonald 35, 543,567,568 Cattell «. Nelson 576 Center Co. v. Black 197, 199 Central v. Collins 454, 455 V. Lowell 319, 321 Chadoin «. Magee 32, 145 Chaflfee v. Granger 103 Chambers v. Robbins 74 Chamblin «. Slichter 34, 444 Champion «. Sessions 319, 226, 231 Champlin ■». Mayor 451, 467 V. Morgan 319 Chapman v. Harrison 4 V. Mad River 457 v. Railroad Cos. 456 V. Scott 65 Chappell «. Cox 64 «. Davidson 370, 396, 398 V. Purday 363, 385 V. Sheard 396, 397, 398 Charles «. Warren 899 Chase «. Cheney 133 134 TABLE OF CASES CITED. XVll Page. Chase v. Manhardt 76, 78, 548 Chedworth v. Edwards 449 Ch^eek d. Taylor 108 Chegary v. Scofield 534, 525 Cherry v. Stein 309, 310 Chesapeake v. Young 7, 255 Chetwood v. Brittan 516, 528, 529 Chicago B. Frary 197 Child V. Douglas 421 Childress v. Perkins 2 Chipman v. Hibbard 96 Chisholm -0. Anthony 77 Cholmondeley «. Clinton 539 Choteau v. Rice 522 Christie «. Hale 91, 155 Christopher «. Mayor 463, 464 Chuck V. Cremer 498 Churton v. Douglas 398 City Bank v. Skelton 44 Clack V. Wliite 316 Clagett V. Salmon 181, 248 Clagon V. Veasey 245 Clapham i). "White 544 Clark, Se 126 Clark «. Bond 67 V. Clark 388 V. Cort 50 v. Ferguson 349 «. Martin 426, 427 «. Mayor 288 V. Watkina 439 v. Wood 504 . Janesville 206 Cranstown b. Johnston 39, 98 Crawford v. Crawford 73 V. Paine 47, 145, 551, 573 V. Thurmond 68 Creanor e. Nelson 235 Crews V. Burcham 9 V. Pendleton 95, 181 Crockett v. Crockett 350, 351 Crockford «. Alexander 483 Croft D. Day 389, 393, 395, 403 Cronise «. Clark 518 Crook «. The People 509, 513, 513 Crook's Ex'r. ■». Turpin 544 Cropper v. Coburn 97, 479 Croshie «. Tooke 413 Cross «. Mayor 337 Crossley «. Beverley 357 Croton «. Kyder 319, 331 Crowe «. Aiken 379, 380, 381 Crump V. Lambert 374 Cruttwell «. Lye 435 Culbertson s. Cincinnati 196 Cumberland ii. Hoffman 551, 563 Cummins v. Bennett 37 ■e. Bentley 85, 414 11. Cummins 581 Cunningham «. Caldwell 79 e. Kice 377 B. Kome 377 Curd «. Wallace 133 ®. Wunder 181 Curran v. Shattuok 385 Currier «. West 396 Curtis V. Keesler 381 Cutting V. Gilbert 218, 314 D. D'Almaine v. Boosey Dade v. Irwin's Ex'i". Daggett 4). Rymau 371 85 m Pasb. Dale v. Koosevelt 30, 408 Dales V. Weaber 439 Dana v. Valentine 369, 3 75, 276, 377 Danville «. Montpelier 478 Darling ». Gunn 301 Darmsdatt v. Wolfe 50 Darst 1}. Brockway 414 Daubenspeok d. Grear 360 Davies v. Leo 234 *. Williams 283 Davis V. Kendall 394 ■i). Mayor 290, SD2, 295, 296 ■0. Heed 258, 571 ■». Tilestou 87 Davis's Ex'rs. v. Fulton 578 Daw V. Eley Dawson ■». Paver 513 504 D. St. Paul 291, 295 n. Thompson 496 Day «. Candee 340 u. Hartshorn 345 D. Martin 560 ■8. Merry 243 Dayton v. Commercial 108 Deaderick v. Smith 99 Dean v. Brown 336 v. Charlton 311 «. Madison 306 V. Todd 305 Deaver n. EUer 409 Dedman v. Chiles 35 Deere r>. Guest 4, 264 DeGroot v. Receivers 48, 144 «. Wright 548 Dehon «. Foster 41, 43, 43 Deklyn v. Davis 11 Do la Croix n. Villere 359 Delaware v. Camden 339 •B. Clark 391, 393 V. Earitan 233 n. Stump 304 Deli>ndre v. Shaw 362, 396 DeKanneville v. DeManneville 496 Dennis v. Green 583 Denny «. Brunson 351 Dent ». Summerlin 516, 539 V. Turpin 397 Depau 11. Moses 487 Depeyster«. Graves 517, 533, 534, 535 DeReimer v. Cantillon 184 Derry Bank v. Heath 562 DesMoines v. Carpenter 574 Deveau v. Fowler 483 DoVeney ii. Gallagher 357 DevoU v. Scales 7S DeWilton d. Saxon 417 DeWitt v. Hays 215, 339 Dickens v. 870 B. Lee 371 T^BLE OF OASES OTTED. XIX Page. Dickenson v. Grand Junction 431 V. McDermott 87 Dickinson v. Jones 244 Dietrichsen «. Cabbnm 433 Diggs v. Wolcott 43, 338 Djlly V. Doig 356, 444 Dineiiart «. Lafayette 25 Dixon i>. Grugenheim 397 B. Holden 377 Dodd «. Flavell 551 Dodge «. Card 340 «. Strong 105 Donelson «. Young 79, 106 Doolittle V. Supervisors 291, 447 Doran v. Carroll 265 Dorsey i>. Hobbs 47, 161, 167 Doub V. Barnes 537 Doubleday «. Sherman 360 Dougherty v. Scudder 31, 414 «. Walker 487 Doughty V. Somerville 23, 525 «. "West 341 Douglass V. Wiggins 246 Dowling V. Polack 553 Downing v. Mann 90, 153 Downshire v. Sandys 242 Dows V. Chicago 195 Drake v. Hudson 297 ■». Jones 157 V. Phillips 211, 215, 551 Drury v. Eoberts 484 Duckett 1). Dalrymple 537, 548 Dudley v. Mayhew 362 V. Trustees 193, 463, 468 Dugan «. Cureton 56 Dulin V. Caldwell 7 Dummer v. Chippenham 451 Duncan v. Gibson 66 V. Lyon 78 1). Morrison 107, 117 Dungan v. Miller 49 Dunham v. Collier 94, 177 Dunn V. Clarke 60, 445 V. Fish 81 Dunning d. Aurora 371, 395 Durant v. Williamson 270 Duvall V. Waters 340 Dyckman -o. Kernochan 34 Dyer «. Armstrong 191 E. 265 556 Eachus V. Moss Eakle v. Smith Earl of Ripon v. Hobart 371, 391, 393 Eastburn v. Kirk 577, 578 Eastman v. Amoskeag 270 Page. Eastwood V. Lever 426 Echelkamp v. Schrader 256 Bdelsten v. Vick 394 Edgar i>. Clevenger 109 Edleston v. Vick 389 Edney «. King 445 V. Motz 576 Edwards v. Banksmith 12 «. Bodine 562 V. Edwards 494, 561 ■0. Ferryman 532 V. Strorle 171 Eldred «. Camp 537 Eldridge v. Hill 35, 36 Elliott V. Elmore 108 «. Thompson 161, 163, 167 Ellis i>. Commander 484 Ellsworth -D. Cook 34 Blmslie «. Delaware 233 Ely 1). Monson 849 Emerson v. Davies 368 «. Udall 62 63, 99, 100 Bndicott e. Mathis 8, 37, 514, 519, 547 Enfield i). Connecticut 320, 325 «. Hartford 318, 328, 334 Eugel 13. Scheuerman 98 England v. Carling 481 English i>. Miller 96 Ensign u. Colburn 178, 246, 247 Erie «. Delaware 149, 328 V. Walker 314 Erie Co. v. Ramsey 498, 500 Ernest v. Nicholls 457 Errissman v. Errissman 495 Erskine «. Staley 49 Espey v. Lake 415 Evan «. Avon 451 Evans v. Coventry 444 t>. Lovengood 144 Everly v. Rice 520 Bvitt v. Price 15 Ewell V. Greenwood 291 Ewelme Hospital v. Andover 35 Ewing ». St. Louis 89,193 Exchange v. Hines 196, 197, 199 Exnicios v. Weiss 116 Eyre v. Everett 491 v. Higbee 376 F. Fahs V. Roberts 574 Fairthorne v. Weston 479 Fall v. Cpunty 335, 326 Falls V. Krebs ■ 77 «. Tibbetts 359 Fanning v. Dunham 37, 48, 410 Farmer e.Calvert Co. 363, 865, 366, 570 XX TABLE or CASES CITED. Paoe. Pase. Farmers v. Eeno 5,328 Fremont v. Boling 196 Farnsworth i>. Fowler 14, 503 i>. Early 314 Farrand ». Marshall 300 V. Merced 301 Farrant ■». Lovell 348, 245 French v. Howard 163, 163 Farrow ®. Vansittart 264 i>. Macale 433,434 Faulkner v. Campbell 101 Frierson ■». Moody 83, 411 FawGet v. Pendleton 51 Frieze v. Chapiu 173, 177 Fechter «. Montgomery 413 Frink v. Lawrence 291, 447 Feistel d. King's College 535 Frost V. Myrick Frowd V. Lawrence 53 Fellows t>. Fellows 415,443 34 Fennlngs «. Humphrey 498 Fulton Bank v. New York 533 Fentress v. Robins 66 Furbush i>. Bradford 338 Ferguson «. Fisk 88 Fuselier v. Spalding 274 ffl. Tipton 555 Ferrars v. Ferrars ' 495 Ferrell v. "Woodward 327 G. Field V. Corey 30 V. Jackson 235 Gainsborough v. GifFord 57 Filley v. Fassett 389, 390 Galbrath v. Martin 69 Fingal v. Blake 255 Gale V. Abbott 3,278 Firmstone v. DeCamp 516 538, 529 Gall V. Cincinnati 471 First National Bank«. Meredith 214 Gallagher v. Fayette 223 Fishback «. "Williams Gamble v. Campbell 543, 551 93, 170 174, 565 V. Loop 91, 157 Fisk 11. Chicago 459 Gano ». "White 59 Fiske V. Hazard 311 Gardner «. Jenkins 80,81 Fitch V. Polke 168 «. Newburgh 269 280, 285 V. Rochfort 520 Garr «. Hill 523 Fitzhugh V. Gordon 411 Garretsou v. Cole 3,150 Flamang's Case 254 Garrett ». Logan 562, 563 Flanders v. "Wood 338 Garrow v. Carpenter 524, 537 Flavel e. Harrison 387, 388 Garth ®. Cotton 239 243, 250 Fleischman v. Young 533 Gartside v. East St. Louis 451, 466 Fleming «. Collins 46, 185 e. Outram 15 Flickinger «. Hull 107 Gash «. Ledbetter 191 Floyd «. Turner 519 Gates V. McDaniel 318, 326 Folsom V. Marsh 364, 366 373, 376 Gause v. Perkins 255 256 258, 259 Foote V. Linok 196, 339 Gay V. Hancock 161, 167 Forbes ». Eden 134 Gayle v. Fattle 161 163, 167 'Ford «. Farmer 476 Gee v. Pritchard 375 376, 481 v. Rigby 91, 110 Geiger v. Green 522 ». "Weir 31 Gentry v. Hamilton 577 Fort V. Groves 370, 295 George v. Strange 85 Foster, Ex parte 47 190, 356 Georges v. Detmold 240 Foster «. Ames 127 Georgetown v. Alexandria 398 «. Birmingham 421, 433 Georgia «. Atkins 213 V. Kenosha 308 German Church «. Masohop 137, 141 V. Moore 341, 343 Gerrard v. O'Reilly 424 V. Reynolds 176, 177 Gibbons v. Ogden 332 V. "Wood 64 Gibson v. Moore 32 Fowler «. Scott 553 i>. Smith 236, 237 V. "Williams 534 V. Tilton 576 Fox n. Scard 433,441 v. Van Dresar 348 France v. France 571 Gibson's Heirs v. Niblett 190 Franklyn v. Thomas 505 Giddens v. Lea 84, 409 Frazer «. Siebern 314 Gifford «. New Jersey ' 454, 471 Freeland v. Reynolds 110 Gilbert v. Arnold 131 Freeman ®. Deming 499 ». Morris 293 «. Elmcndorf 90, 94, 153, 154 Gilder v. Merwin 73 TABLE, OF OASES CrrKD. Faqb. Gillespie v. Broas 473 Gillett «. Treganza 243 Gillott V. Esterbrook 388, 389 Gilraan «. Philadelphia 298 Gist B. McGuire 560 Glassington ®. Thwaites 480 Glenny v. Smith 403 Gold «. Canham 485 Gooch v. Marshall 501 Goodale ». SoaniieU 96 Goodin v. Cincinnati 233, 456 Goodman ■v. Kine 26 Goodnough v. Sheppard 94, 150 Goodrich i>. Moore 3 Good-wyn ®. Spray 246 Goodyear v. Allyn 356, 357 V. Berry 343, 344 V. Bourn 353, 356 B. Day 351 V. Dunbar 347, 348 V. Evans 343, 344, 355 V. Honsinger 849, 350 V. MuUee 360 V. New Jersey 342, 343, 344, 356 V. Phelps V. Rust Gorham v. Toomey Gorton v. Brown Gout v. Aleploglu Grafton s. Brady Graham v. Horton Granard v. Dunkin Grand Junction v. Dimes Grant v. Quick Grantlaud.B. Wight Gravenstine's Appeal Gray v. Baldwin V. Chaplin V, Mathias V. McCance V. Russell V. Veirs Great v. Clarence 356 343, 344 96 554 396 545 471 375, 377 508, 509 96 171, 541 461 178, 246 457 33 531 366, 367, 371, 373 565 265 Great Palls v. Worster 42, 284 Great Western «. Birmingham 5 Green v. Green 472, 492 «. Keen 338 V. Cakes 294, 472 «. Pallas 526 V. Pledger 415 «. Pulsford 521 Greencastle v. Hazelett 283 Greene «. Haskell 70, 74 V. Mumford 197 Greenhalgh v. Manchester 10, 218, 219, 519 Greenin v. Hoey 532 Greenlee ®. McDowell 99 Page. Gregerson v. Imlay 407 Gregory «. Hay 188 «. Patchett 457 V. Stillwell 535 Gridley v. Tucker 103 Griffin v. State Bank 533 Griffith V. Bronaugh 581 V. Clarke 69 v. Reynolds 72, 74 Grover Co. v. Williams 341 Grundy v. Young 560 Gunhy v. Bell 216 Gutshall V. Salsberry 109 Gwin -0. Melmoth 271 Gyles V. Wilcox 371, 373 H. Hackwith «. Damron 186 Haguer «. Heyberger 475 Hahn v. Hart 71 Haight V. Day 203 V. Executors 477 V. Morris Aqueduct 304, 312 Haines v. Taylor 273 Hair«. Barrows 388 V. Clark 174 V. Davis 90, 153 V. Fisher 33 ,;. Hall 480 V. McPherson 569 ■b. Williamspn's Adm'rs. 553 Halliwell «. Phillips 343 Hamer v. Kane 34 Hamersley o. Wyckoff 567 Kamilton v. Dobbs 50 V. Dunsford 430 V. Ely 335 V. Fond du Lac 316 V. Hendrix's Heirs 189 1). New york 391 Hammetl s. Christie 529 Hampson v. Weare 81 Hankey v. Abrahams 331 Hanley «. Wallace 552 Hanna v. McKenzie 556 Hanson v. Gardiner 261, 263 Harbison v. Houghton 46, 185 Harbottle v. Pooley 570 Harden ■». Garden 65 Hardy «. Martin 433 Hariug v. KauflFman 14 Harlem ■». Mayor , 211 Harman ®. Jones 7 Harmon v. Dreher 137 Harness v. Chesapeake 230 Harney v. Indianapolis 470 Harrington v. American 37 XXll TABLE OF OASES CITED. Page. Harris v. Sangston 526, 527, 575 Harrison v. Gardner 435 «. Gurney 39, 40, 443 «. Seymour 491 ■s. Taylor 396, 405 Hart V. Marsliall 21 V. Mayor 7, 255 Hartford i). East Hartford 318, 328 Hartlepool v. "West Hartlepool 444 Hartt V. Harvey 461 Hartwell ■». Armstrong 478 Hascall v. Madison University 409 Haskell «. Ingalls 124 Hatch V. Chicago 544 v. Daniels 527 , Hatcher v. Hampton 256 Hawkins ■». Hunt 26 Hawley v. Bennett 500, 510, 581 •». Clowes 341, 246 Haydon v. Goode 112, 488 Hays, Bx pa/rte 12 Hays v. Ward 41, 42 HayTvard v. Dimsdale 87 Haywood i>. Cope 13 Head v. James 8, 207 V. Perry 560 Hearn «. Tennant 14, 500, 502, 511 Hebert v. Joly 35, 568 Heck V. Vollmer 534 Heeuey u. Ti'ustees 142 Heilman ®. Union 14, 313, 814 Heine v. Appleton 374 Hemiup, He • 33, 567 Hemphill «. Ruckersville Bank 533, 549 Hempstead «. Watkins 56 Henderson b. Marcell 477 «. Morrill 90, 153 Hentz ®. Long Island 333, 334, 295, 396 Herr v. Bierbower 364 Hersey «. Supervisors 203, 310 Hervey ii. Smith 3, 278 Hess v. Winder 147 Heston v. Canal Commissioners 477 Heyneman v. Dannenberg 60 Heywood v. Buffalo 90, 195, 204, 206, 209 Hibbard ». Eastman 111 «. McKiudley 561 Hicks V. Compton 360 v. Michael 337 Higbee ». Camden 7, 334, 391, 531 Higgins «. Woodward 349, 584 High V. Grier 175 Hihn v. Peck 246 Hilbish V. Catherman 12 Hile «. Davison 162 Hill V. Bowie ' 334 Page. Hill V. Jones 581 «. Thompson 341, 349 v. Turner 30 V. United States 107 Hilleary ». Crow 93, 163 Hilles !). Parish 461 Hills 11. Croll 431 V. Miller 304, 305, 418, 426, 437 Hilton V. Granville 10 Hinchman v. Paterson 229, 391, 392, 447 Hine v. Stephens 100 Hines v. Rawson , 513 Hoagland «. Delaware 313 V. Titus 538, 539 Hobart v. Detroit 311 v. Ford 13 Hodges, Ex pa/rte 35 Hodges «. Planters 87 13. Welsh 385 Hodson v. Coppard 507 Hoffman «. Livingston 579 Hogencamp ». Paterson 393 Hogg «. Kirby 378, 397 Holdrege v. Gwynne 18, 24, 60, 573 Hole v. Thomas 243, 244, 246 Holland v. Mayor 315 Hollister u. Barkley 527 Holloway v. Holloway 394, 895 Holmes v. Jersey 218, 336 Holsman «. Boiling 383 Holt D. Bank of Augusta 516, 528 Holt's Ex'rs. «. Graham 79 Hood v. Aston 415, 483 Hoofman «. Marshall 565 Hooper i). Brodrick 429 Hopkins v. Caddick 264 Hord ». Trimble 564 Horner v. Jobs 46 v. Marshall's Admr'x. 116 Hornor v. Leeds 38, 573 Horton v. Hoyt 320, 231 Hostetter v. Vowinkle 389, 391 Hotten V. Arthur 367 Hough V. Chaffln 38, 485 Hovey v. Stevens 348 Howard d. Durand 506 v. Hopkyns 433 ». Lee 374 V. Woodward 439 Howe «. Howe 390 v. Morton 839, 349, 350 V. School District 141 V. Willard 14, 503 Howell «. Chicago 459 V. Robb 577 Howes 1). Bacine 203 Hoyt v. Gelston 534, 537 «. Mackenzie 376 TABLE OF OASES CaTHD. XAll] Page. Hubbard «. Hobson 78, 79, 117 ■0. Hubbard 30 V. Jasinski 47, 180 V. Martin 76 Hudson V. Kline 80, 87 V. Maddison 583 ■». Plets 504 Huebschman v. Baker 58 Hu£fm»nn «. Hummer 526 Hugbes 1). Huglies' Adm'r. 561 ®. Kline 204 V. McCoun 85 «. Worley 179 Hugbes' Adm'r. v. Wickliife 555 Hull V. Tbomas 14, 503 Hulme V. Shreve 304, 312 Humiston v. Stainthorp 357 Humphreys v. Leggett 76 Hunt, lie 123 Hunt 1). Burton 555 V. Scobie 553 Hunter v. Nockolds 443 Hunter's Appeal 494 Hurd V. Eaton 93, 192 Hussey i>. Wliitely 341 Hutchins B. Hope 526, 548 Hutcbinson v. Hutchinson's Ex'rs. 52 V. Johnson 180 V. Thompson 299 Hyatt «. Bates 473 Hyde v. Ellery 18 Iglehart v. Lee 78, 79 Illinois V. Cook 462 ■». County of McLean 198, 200 Imlay v. Norwich 351 Imperial v. Broadbent 267 «. Clarke 505 Indianapolis t>. Gilmore 215 Ingraham v. Dunnell 310 Ingram «. Morecraft 431, 423 V. Morgan 160, 167 V. Stiflf 382 Irick V. Black 105, 491, 528 Irving V. Hugbes 118, 119, 130 Irwin «. Dane 338 «. Davidson 262 ». Dixion 270 Isaacs 1). Cooper 342 Isenberg v. East India, 4 Iveson 1). Harris 443, 507 Jackson v. Arnold v. Gator 581 Paob. Jackson v. Darcy 31, 537 ■0. Deti-oit 197, 303 V. Jones 533 1). Newcastla 27S ». Norton 172 Jacob v. Hall 569 Jacox V. Clark 313 James v. Downes 500, 511 V. Lemly 53( V. Norris 53C V. Roberts 414 James River «. Anderson 451 Jarden i). Philadelphia 239 Jarrold v. Houlston 367, 369 Jay ». Richardson 435 Jaynes v. Brock 169 Jefferson v. Bishop of Durham 833 Jeffersonville o. Patterson 195 Jenkins v. Felton 547 «. Greenwald 355 «. Rock County 20'! Jerome v. Ross 261, 366, 267 Jervis ». "White 48J Jesus College v. Bloom 250 Jeter v. Langhorne 558 Johnson v. Allen la V. Andrews 88 v. Connecticut lOS V. Gere 163 V. Shrewsbury 439 V. Vail 492, 493 v. Vaughan 552 V. Woodruff 148 Johnston v. Alexander 531, 533, 534 v. Johnston 494 Johnstone «. Hall 420, 435 Jollie V. Jaques 371 Jones V. Bennett 49, 100 V. Commercial Bank 516 ■V. Edwards 520 V. Frosh 99 V. Geddes 41 ». Jones 85, 409 B. Little Rock 470 1). Macon 24, 25, 572 V. Magill 569, 576 Jordan's Admr'x. v. Williams 61 Judah V. Chiles 517 Justice «. Scott 51 Justices ». Griffln 321 Kaigbn v. Fuller 537 Kane «. Vanderburg 237 Katz V. Moore 71, 125 Kean v. Colt 6,570 V. Johnson 454, 457, 462 XXIV TABLE OF CASES CTTED. Page. Kearney v. Andrews 466 Keath v. Key 491 Keene v. Bristol 233 V. Clarke 380, 381 V. Kimball 379 V. Wheatley 378, 380, 381 Keith V. Wilson 59 Kekewich ■». Marker 346 Kellogg v. Ely 203 1). Oshkosh 195, 197, 199 Kelly V. Morris 11 Kelsey v. King 464, 465 Kemble d. Kean 430, 431 Kemp V. Sober 420 Kendall ». Winsor Kennedy v. Earl of Cassiblis ■». Scovil Kennedy's A.dm'rx. v. Ham- mond Kent V. Bierce V. De Baun V. Jackson «. Mabaffy «. Ricards ' Kenyon «. Clarke Kerlin v. West Kerns «. Chambers Kerr v. Trego Key V. Muusell Keyton v. Bradford Kilpatriok d. Tunstall Kimberley e. Jennings Kimpton v. Eve Kincaid's Appeal King V. Baker «. Baldwin V. Clark B. McCuUy v. Miller v. Reed V. Smith Kinney v. Ogden's Adm'r. Kinsler v. Clarke Kinyon v. Duchene Kirkman v. Handy Kisor's Appeal Kiieedler d. Lane Kuiskeru v. Lutheran Churches 130, 140 Knott «. Morgan 395 Knowlton V. Supei-visors 196 Koger D. Kane 161, 167, 173, 177 Krone v. Ki'one 569 Kurtz V. Beatty 147 96 40 286 561 553 52 457 51 70, 74, 533 108 239 526 475 91, 155, 156 165 95, 492 407, 431 500, 501 193 79, 106 489 545 316 309 373 246 112 237, 580 197 271, 372 141 517 L. Lackay «. Curtis Lacy V. Administrators 445 70 Page. Lady Bryan v. Lady Bryan 26 Lafayette v. Cox 470 Lafon D. Desessart 63 Lake View v. Letz 371, 295 Lamb v. Brew 47, 145 Lamborn v. Covington Co. 286 Lampton v. Usher's Heirs 170, 174, 565 Lane ». Clark 33 v. Newdigate 4, 285 V. Schomp 473 Laney v. Jasper 383 Langworthy i). Dubuque 309 V. McKelvey 563 Lanpheimer v. Rosenbaum 30 Lansdowne «. Lansdowne 250 Lansing v. Easton 500 V. Eddy 64, 67, 83, 411 ■0. North River 319 Lapeer «. Hart 85, 36 LaSala ». Holbrook 305 Lathrop v. Marsh 238 Laughlin v. President 271, 273 Lawrence «. Mayor 147, 468 v. Philpot 487, 518, 580 ■0. Smith 362 Leather ii. American 387, 388, 390, 394, 399, 400 Leather Cloth Company v. Lorsont 436 Leather Co. v. Hirschfield 405 Le Clercq d. Trustees 292, 393 Lee V. Alston 239 «. Vaughan 166 Leeds s. Cheetham 50 Leggett V. Dubois 545 ». Morris 79 Le Guen «. Gouverneur 78 Lehman v. Logan 345 Leighton ». Leighton 35 Leroy s. Dickerson 579 Le Roy v. New York 203 Leslie i>. St. Louis 158 Lessig B. Langton 5'71 Lewis V. Christian 191 V. Eullarton 363, 373 v. Langdon 485 V. Levy 110 V. Smith 15, 538 «. Stein 383 Lewiston v. Franklin 33, 569 Lexington «. Applegate 295, 296 «. Ormsby 317 Lindsley v. James 83, 411 Lines v. Spear 536 Linton «. Denham 538, 529 Lister ». Eastwood 345 Little V. Gould 370 «. Marsh 533 TABLE OF OASES CITED. XXV Paqd. Little V. Price 14, 56, 59 Littler v. Thompson . 340 Livingston v. Bank of New York 454 v. Gibbons 38, 546 V. fioUenbeck 197, 304, 473 i>. Jones 350 B.Kane 114,115 V. Livingston 188, 475, 519 «. Ogden 319, 383 V. Van Ingen 319 Lloyd V. Heath 579 «. London 431 1). Trimleston 355 Lockwood «. St. Louis 305 Loder v. Arnold 508 Logan v. DriscoU 363 ®. Patrick 97 London «. London 387 Long 1}. Merrill 337 Longman v. "Winchester 370 Lothrop «. Southworth 551, 558 Loudon v. Warfield 344 Lovell V. Chilton 171, 541 Lover v. Davidson 371 Low n. Innes 483 Lowe «. Baker 39 Lowndes «. Bettle 7, 355, 367 Lowry i). McGee 37 Loyless i). Howell 533 Lucas 1). Bank 97 B. Chapeze 165 V. McBlair 318, 330, 331 «. Spencer 63 Lumley «. Wagner 417, 431 Lumsden i>. Milwaukee 463, 467 Lyles «. Hatton 107 Lyon V. McLaughlin 380 Lyon's Appeal 191 Lyrely «. Wheeler 536 M. Macher v. The Foundling Hos- pital 418, 431, 433 Macklot V. Davenport 197, 304 Maddox «. White 346 Magennis «. Parkhurst 499 Mahan v. Tydings 553 Mahon ®. Stanhope 343 Mallett V. Weybossett Bank 583, 534, 535 Malley ®. Altman 448 Mammoth Vein Co.'s Appeal 7, 369 Manchester v. Dey 583 «. Worksop 365 Manderson v. Commercial 454, 455 Page. Manly v. Raleigh 310 Mann v. Stephens 305, 407, 436, 437, 509 Many i). Sizer 345 Marble v. Bonhotel 13 Marble Company v. Bipley 479 Marine «. Hodgson 56, 61, 63, 63 Marker v. Marker 341 343,343 Markham v. Todd 171, 173 M:^.rks, He 136 Marks v. Morris 411 Marlatt v. Perrine 517 Marriner v. Smith 90, 154 Marsh v. Edgerton 73 Marshall v. Beverly 61 V. Ross 388 i>. Watson 483 Martin, JEx pwrte 284 Martin v. Broadus 11 V. Hewitt 158 1). Lindsay's Adm'rs 411 B. Michael 60 V. Wade's Ex'rs. 560 V. Wright 404 Martinetti v. Maguire 363, 371 Martyn v. Knowllys 350 Martyr v. Lawrence 3,365 Maryland v. Jarrett 475 «. Northern 178, 346 347, 536 «. Schroeder 460 Mason v. Hill 379 1). Richards 101 Massie v. Mann 531 V. Watts 41 Mathews v. Douglass 34 Matson v. Field 105 Matthewson v. Stockdale 374 Mawmane. Tegg 363,369 370, 385 MaXwell v. Hogg 398 V. Maxwell 188 Mayall «. Higby 441 Mayo D. Judah 190 Mayor v. Bolt 378 393, 447 V. Curtiss 369, 373 V. Franklin 146 V. Georgia 396 V. Gill 465, 470 V. Grosbon 356, 456 V. Hedger 365 V. Magnon 11 «. Meserole 90, 304 309, 473 V. Porter 308 V. Thorne 301, 466 Maythorne ». Palmer 412 McAndrew v. Bassett 387 McArthur «. Kelly 14, 473 McBride v. Chicago 309 McCallum v. Germantown 382 XXVI TABLE OF CASES CITED. Pase. McCann v. Taylor 94, 193 McCartney v. Garnliart 390 McClellan v. Crook 96 ■V. Marshall 108 McClurg's Appeal 433, 434 McConnell v. Ayres 59 McCord V. Iker 269, 370 McCoun v. Delany 556 MoCowan «. Whltesides 395 McCoy V. Chilicothe 196 McCredie «. Senior 483 McCreery v. Sutherland 110 McCullooh e. Hollingsworth 90, 153 McDonnell ■». Grand 457 McDonogh «. Calloway 3, 3 McFaiiand «. Orange 393, 396 V. Rogers 59 McFarlane v. Grifiath 45, 184 McGee i). Smith 11, 149 McGhee «. Ellis 51 McGinnis v. Watson 130, 140 Mclndoe v. Hazleton 81 Mclntyre v. Mancius 34 McJilton V. Love 97 McKenzie v. Cowing 30 McKibbin v. Brown 413, 546 McKim 1). Fulton 545 V. Voorhies 96 McKoin v. Cooley 83, 411 McKoy K. Chiles 169, 170, 174, 565 McLaughlin «. Kelly 263, 367 MoLeod V. Duncan 513, 544 McMahoa v. O'Donnell 531 McMillen v. Smith 12 MoNamara ». Irwin 526 McNeil «. Garratt 14, 500, 503 McPike 0. Pew 195 McRae v. Atlantic 6 v. Brown 562, 563 McReynolds v. Harshaw 116, 538 McRoberts «. Washhurne 319, 326 McVickar v. Wolcott 533 Mead v. Merritt 43 V. Norris 498, 500, 508 Meadow Valley v. Dodds 236 Mechanics v. Deholt 196, 338, 329 Meohling i>. Kittanning 391, 447 Medley v. Panniel's Adm'r. 539 Meem v. Rucker 76, 78 Meigs' Appeal 193 Meloy 1). Dougherty 91, 100, 156 Menifee's Adm'r. v. Ball 56 Merced «. Fremont 361 Mercer v. Byrd 148 Meredith d. Benning 63, 67 Merrill v. Gorham 304 V. Lake 51 Merrit, Bx parte 34 Merritt v. Farris 197 Page. Merritt «. Hunt 173 Mershon b. Bank 65 Merwin v. Smith 518, 531, 575, 580 Metcalf, Me 118, 130 Metler's Adm'rs. v. Metier 37 Metz V. Anderson 197 Metzler, Re 118, 123 Mewborn v. Glass 68 Mexborough v. Bower 4 Meysenburg ®. Schlieper 180, 559 Miohaux's Adm'r. ■». Brown 561 Mickles v. Rochester 461 Miles V. Thomas 479 Milhau «. Sharp 331, 463, 464 Millar v. Taylor 378, 383 Miller d. Argyle's Bx'r. 161, 167 v. English 141 11. Estill 58 V. Ford 48, 410 v. Gable 130, 140 B. Gaskins 104, 490 ». Gorman 204 V. Grandy 214 V. Traphagen 576 c. Truehart 388 !). Washburn 517 Milligan ®. Mitchell 138 Millington -o. Fox 389, 394, 404 Mills V. Cobby 504, 505, 510 v. Gleason 300 D. Johnson 200, 303 Milne ■». Van Buskirk 14 Milwaukee v. Milwaukee 297 Minturn v. Seymour 516 Misner v. BuUard 562 Mississippi v. Johnson 477 Mitchell V. Bunch 41 V. Dors 354', 261, 362, 263 V. Milwaukee 306 ®. Mitchell 588 ». Sherman 173 Mittnight v. Smith 483 Moat V. Holbein 498, 513 Moet V. Couston 404 Mogg V. Mogg 539 Mohawk v. Artcher 331, 309, 395, 472, 475 B. Clute 203 ■B. Utica 271, 373, 289, 290, 398 Money v. Jordan 506 Monroe v. Bradley 498, 509 «. Harkness 498, 509 «. Molntyi-e 53, 530 Montague v. Horton 468 Montgomery v. McEwen 155, 176, 177 ■0. Walker 349 Moody «. Payne 481 TABLE OF OASES OITKU. XXVll Pace. Mooers v. Smedley 213, 473 Moor V. Veazie 319, 332 Moore v. Barclay 101, 518 V. Cook 170 «. Cook's Adm'rs. 540 ■». Cord 91, 157 V. Dial 65 V. Ferrell 254, 255 ^ ■». Holt 49 1). Hylton 531 Moorman v. Hoge 400 Moran v. "Woodyard 68 More V. Massini 263 Moredock «. Rawlings 172 «. Williams 170, 540, 577, 578 Morehcad v. Little Miami 473 Morfcland v. Richardson 264 Morgan, Ex parte 457 Morgan i). England 83, 411 1). Negley 559 V. Scliermerliorn 48, 49, 410 V. Wliiteside's Curator 89, 144 Morison v. Moat 15, 358 Morpliett 11. Jones 570 Morris v. Bartlett 112 V. Central 281 V. Colman 432, 433, 481 ■B. Fagan 527 V. Jersey City 45, 183, 200, 206 V. Kelly 377, 878, 385 V. Lowell 339, 850 v. Morris 250 V. Prudden 10, 290, 291 V. Shelbourne 351 B. Society 407 Morse v. Esterbrook 348 Mosby i>. Haskins 80 Moses V. Pittsburgh 467 Mosier v. Caldwell 283 Moss V. Pettingill 526 Motley v. Downman 889, 396 Mott V. Pennsylvania 200 Motte V. Bennett 339 Motz V. Detroit 204 Mozley v. Alston 444, 454, 457 Mulkern -d. Ward 377 Mullen «. Jennings 21 Muller, Se 127 Muller V. Bayly 179 Mulvany v. Kennedy 264 Municipality No. 1 d. Munici- pality No. 2 465 Munro D. Wivenho 407 Munson v. Minor 196 Munt 1). Shrewsbury 458 Murdook v. De Vries 100, 101 PAaE. Murdock's Case 5, 178, 247 Murray v. Bogue 383 Muscan v. American 341, 348 Muscatine i). Mississippi 109, 201 Musselman v. Marquis 264 Mutual 1). Supervisors 195, 206 Mygatt V. Goetchins 277 Myrick v. La Crosse 199 N. Neale v. Crips 255 Negro Charles v. Sheriff 36, 568 Neilson v. Harford 354 Nelson v. Owen 34, 162, 163 1). Pinegar 178, 347 Nelson's Adm'r. v. Armstrong 84, 410 Nevitt «. Gillespie 334 New D. Bame 529, 530 New Albany v. Connelly 322 V. 'Daily 229 Newburgh v. Miller 819, 330 Newby «. Oregon Co. 399 Newoomb v. Horton 201, 448 Newell V. Partee 551 Newling v. Dobell 436 New London v. Brainard 310, 311, 471 Newman d. Alvord 387, 391 V. Meek 74 V. Ring 514 New Orleans v. United States 389 Newton v. Chorlton 490, 491 New York v. American 83 V. Connecticut 84, 444 V. Fitch 268 «. Forty-second Street 323 V. Mapes 369, 467 Niagara v. Great Western 334 NichoUs v. Stretton 483, 434 Nichols 1). Campbell 506 i>. Salem 333 V. Sutton 330 Nicholson v. Patterson 82 Noble ». Wilson 533 Norris ». Hill 311 V. Hume 66 North D. Hoflfman 319, 333 V. Kershaw 848, 853, 354 North's Ex'r. v. Perrow 517, 518 North River ■». Livingston 332 Norton v. Beaver 91, 155 Norway v. Rowe 253 Norwich «. Norwich 333, 836 Novello «. Sudlow ' 374 Nunn «. Matlock 74 XXVIU TABLE or CASES GTIED. Nusbaum v. Stein Nuttoown V. Thornton 569 256 O. Oakley «. Pound ■». Trustees ■». Young O'Brien ®. Chicago V. Norwich O'Bryan v. Gibbous Ogden V. Gibbons V. Kip Ogle «. Edge Olin v. Hungerford Oliver «;. Decatur ■». Keightley Olmstead v. Loomis O'Neal ». Virginia Onslow V. Orr V. Littlefield 341, 343, D. Merrill V. Orr ■». Pickett Osborn «. Taylor v. United States 43, Osborne v. Brooklyn Ottawa V. Chicago V. Walker Outcalt B. Disborough Outlaw V. Eeddick Overton ®. Stevens 493 155, 472 101 459 291, 447, 481 484 319, 332 10,11 341, 351, 356 445 179 470 304, 313 197, 199, 204 245 345, 528, 529 352 154 90 Bank 328, 339, 453 297 209 196, 545 152 491 107 P. Pacific V. Leavenworth 228 Packington «. Packington 239, 241 Page V. St. Louis 210 Page's Ex'r. «. Winston's Adm'r. 113 Palfrey c. Shuflf 87 Palmer ®. Dewitt 378 V. Harris 387 i>. Napoleon 203 V. Bich 207 Pargoud v. Morgan 560 Parham v. Justices 222 Pariente ■». Bensusan 504 Parker «. Brant 343, 344, 345 ®. Jones 64 V. Judges 61 «. Morton 73 V. Sears 840, 343, 346, 349, 350 V. Wakeman 504 V. Whyte 423 Pase. Parker ii. Winnipiseogee 23, 270, 275 Parkhurst v. Kinsman 337, 357, 512 Parkinson ii. Trousdale 116, 527 Parks V. Spurgiu 86, 518 Parrott v. Palmer 250, 251, 253 Parsons ». Hughes 248 V. Parsons 494 13. Wilkerson 569 Partington v. Booth 499, 505 Partridge v. Jlenck 390, 394 Paterson ®. Jersey City 35, 36 Patten v. Marden 313 Patterson -e. Miller 6 Payne ®. Loudon 88 «. Paddock 313 11. Wallace 565 Peahody v. Norfolk 408 Peak v. Hayden 237 Pearce «. Olney 70, 71, 72 Peatross v. McLaughlin 127, 519, 539 - " - 259 274 205 52 576 180 243 551 40 9 Peck «. Brown ■». Elder V. School District ■B. Woodbridge «. Yorks Peeler ®. Barringer Peirs «. Peirs Pell ». Lander Penn ». Lord Baltimore Pennsylvania v. Delaware V. Wheeling Penrice v. Wallis Pentney «. Lynn People ». Central «. Davidson V. Draper D. Gilmer •0. Law 11. Mayor v. New York v. Spalding n. St. Louis «. Sturtevant v. Third Avenue ■0. Vanderbilt 220, 524 444 265 290 474 95, 192 324, 225 448, 464, 465 296 498, 509 293, 300 498, 507, 513 230, 331 290, 443 People's Mail Steamship Co., Be 124 Peoria v. Kidder 203, 304 Perceval v. Phipps 375, 377 Perkins ». Collins 24, 452, 573, 583 Perrine v. Marsden Perrot v. Perrot Perry b. Kearney ■B. Kinnear ■0. McEwen V. Parker V. Truefitt Peters v. League V. Prevost Peterson v. Matthis 245 343 104 469 141, 478 6, 7, 255 387, 388, 391 .80 36, 45, 185 6,579 TABLE OF OASES OTTED. XXIX Fase. Pettes V. Bank of Wliitehall 62 Pettibone i). LaCrosse 324 Pettigrew v. Evansville 384 Pettingill v. Moss 59, 108 Pettit 0. Shepherd 91, 155 Petty 1). Tooker 131 Pfeltz V. Pfeltz . 151 Phelan «. Smith 44 Phelps e. Foster 19, 30, 531, 557 Phillips V. Bordman 306 Pickle V. Holland 533 Pidding «. How 387 Piersen «. Ityerson 531 Pierson ■». Ryerson 175, 176 Pike V. Nicholas 368 Pile, Hx parte 13 Pillsworth V. Hopton 334, 335 Piscataqua ®. New Hampshire 318, 319, 334 Pixley V. Huggins 155, 156 Place V. Sweetzer 481 Piatt 1). McClure 175 Platte V. Deuster 96 Poage o. Bell 31 Poe B. Decker 73 Poindexter v. Henderson 334 V. Waddy 73 Pollock i>. Lester 444 Ponder v. Cox 63, 65 Poor V. Oarleton 571, 577 Pope V. Curl 375 1). Halifax 478 Poppenhusen v. Falke 845, 346 V. New York 354, 355 Portarlington v. Soulby 39, 40, 384 Porteous «. Snipes 555 Porter v. Clarke 138 V. Scobie 170, 174, 565 ». Witham 369,377 Portsmouth v. Byington 564 Potier's Ex'rs. «. Burden 281, 282 Pott v. School Directors 447 Potter V. Crowell 355 1). Fuller 339, 343, 344, 849, 356 O.Holland 342,343,353 ®. Muller 339,343,359 V. Stevens 348 V. Whitney 840, 343, 344 Powell «. Aiken 364, 365 V. AUarton 413 V. Brown 538 V. Chamber'sin 33 V. Lloyd 413 D. Parker 30 ■B. RedfieW 61, 213 Powers «. Bears 220, 221 V. WatPT" 53 Prader i. &rim 563, 563 Pnti . Clarke 269 V. Horine 81 «. Howard 173 Rex 1). Cross 274 V. Pease 293 ». Ward 390 Rhea «. Forsyth 269 Rhodes v. Cousins 19 v. Dunbar 271 272, 276 V. Union Bank 573 Ricard's Heirs «. Hiriart 35, 568 Rice B. Rail Road Bank 69 v. Smith 476 Rich i>. Levy 18 V. Thomas 530, 531 Richards' Appeal 300 Richards v. Des Moines 320, 331 1). Northwest 306 V. West 498, 513 Richardson, Me 118, 131 Richardson o. Prince 105 v. Williams 170 Richmond v. Shippen 76,86 Rickett 1). Johnson 96 Ricketts v. Ricketts 494 Riddlesbarger v. McDaniel 563 Ridgeway «. Bank 79 Riggin V. Mulligan 93, 187 Riggs V. Johnson 44 River v. North 320 Rives «. Rives 85,87 Riley v. Ellmaker 73 Risher v. Roush 76 Ritter v. Patch 203, 203 Roath i>. DriscoU 313, 313 Roberts «. Anderson 537, 541 577, 578* V. Bozon 443 e. Jordans 533 ®. McKee 481 B. Meyers Robertson i). Bullions 379 131 ■B. Hogshead 173, 177 Robeson v. Pittenger 309 Robinson v. Byron 3 365, 286 «. Cathcart 518 «. Gaar 206 v. Litton 243, 347 ■0. Russell 178, 347 Robuck V. Harkins 55 Rochester «. Erickson 283 293, 394 Rockwell D. Lawrence 535 Rodahan v. Driver 538 Rodgers v. Nowill 394, 510 ®. Rodgers 113 Rogers v. Bradford 518 Rogers «. Cross v. Danforth V. Erie ■0. Holyoke ■V. Michigan V. Rathbun Rolfe j/. Patterson fl. Rolfe Roman v. Strauss Roper v. Williams Rose «. Rose Roshell V. Maxwell Ross 1). Butler V. Elizabeth ■B. Gordon V. Page Routh «. Webster Ruffners v. Barrett Rust V. Ware Rutherford v. Taylor Ryan «. Anderson V. Brown S. 220 Page. 31,144 187 3 179 8, 179 48, 49, 410 424 432, 433 316 413, 426 495 96 278 221, 453, 541 565 256 400, 404, 485 521 58,77 306 562 453 Sacket i). Hill 579 V. Hillhouse 30, 414 Sainter ®. Ferguson 433, 440 Salmon v. Clagett 178, 347, 535, 576 Salomons v. Laing 456 Samson i). Burton 118, 121 Samuel i). Berger 393 Samuell v. Howarth 489, 490 Sanchez ®. Carriaga 83 Sanders v. Logan 339, 350 Sanderson v. Stoclsdale 484 Sanquirico v. Benedetti 430, 431 Sargent b. Seagrave 353 Sarles v. Sarles 244 Sauerhering v. Iron Ridge 478 Saunders «. Jennings 77 1). Smith 363, 373 V. Webber 105 Sauvinet v. Poupono 35, 568 Savage «. Ball 51 Sayre «. Tompkins 195, 315 Schalk «. Schmidt 443, 539 Sohanck «. Ex'rs. of Schanck 488 Schermerhorn «. L'Espenasse 547 V. Merrill 536, 548 Schlecht's Appeal 151 Schoeffler v. Schwarting 537 Schofield V. Watkins 197 Schurmeier v. St. Paul 339, 356, 359, 366 Schuster v. Metropolitan 301, 467 Schuyler v. Pelissier 44 Schwarz v. Sears 54'; TABLE OF CASES CITED. XXXI Fasb. Soofleld «. Bokkolew 6 V. Eighth School Dist. 469 ■». Lansing 206 Scott V. Burton 6 1). Shreeve 68 «. Wharton 248 «. Whitlow 58 Scribner v. Allen 212 Scudder v. Trenton 249 Scull V. Reeves 536 Soars V. Hotchkias 454, 455, 462 Sedgwick «. Menck 118, 126 V. Redman 507 Seetor v. Hess 534 Seely v. Fisher 397, 400, 404 Seigliortner v. Weissenborn 486 Seixo V. Provezende 389, 390, 395, 403 Selby v. Crystal Palace 423 Selden v. Vermilya 574 «. Vermilyea 147 Semmes v. Mayor 517 Seneca Falls v. Matthews 570 Senter v. Hill 161, 163, 167 Serrell d. Collins 348 Severns «. Woolstou's Ex'rs'. 179 Seymour o. McDonald 304, 305, 426, 437 Shackle ». Baker 115 Shannon v. Frost 132 V. State of Wisconsin 514 Sharp i>. Arbuthnot 415 Shaw ». Dwight 92, 156 Sheboygan v. Sheboygan 301 Sheffield v. Yeomans 9 Sheldon v. Rockwell 383 Shellman v. Scott 516, 528 Shelly V. Brannan 339 Shepardson v. Milwaukee 221 Sheriff v. Coates 340 Sherman v. Clark 3, 31, 461, 475 Sherrill v. Harrell 532 Shields v. Arndt 383 Shipley v. Caples 316, 317 V. Ritter 256, 260 Shirley ». Long 582 V. Watts 19, 60, 146 Shotwell's Adm'rx. v. Smith 517 Shreve «. Black 239, 570 V. Voorhees 304, 312 Shrewsbury v. Shrewsbury 10, 413 Shricker v. Field 63, 76, 78, 106, 526, 534 Shrimpton v. Laigbt 403 Shubriclt v. Guerard 235 Sickels V. Borden 507 V. Tileston 348, 349 Sickles !). Gloucester 339, 351 Sidener v. Norristown 330, 333 Page. Siegel V. Supervisors 199, 306 Sieman ■». Austin 46, 184 Silliman v. Hudson 399 Simpson i>. Denison 455, 458 B. Hart 86 V. Justice 271, 372 «. Westminster 454, 457 Sinnickson v. Johnson 532 Sisk D. Garey 99 Sizer d. Anthony 554 v. Miller 567, 568 Skillman v. Skillman 493 Skip V. Harwood 14, 503 Skipwith V. Strother 84, 410 Slack V. Wood 55, 56, 57 Sleeper v. Bullen 304 Sloan 1). Coolbaugh ' 176 «. Moore 483 Sloman v. Walter 423 Smallmau v. Onions 846 Smith D. American 33 «. Appleton 463, 468, 537 V. Bangs 455, 463 «. City of Rome 349 «. Collyer 258 V. Cooke 239 V. Cummings 341 V. Hays 490 V. Heuston 307, 446 V. Jeyes 482 ■». Johnson 364 V. Lockwood 393 «. Loomis 533 B. Lowry 67 V. Pettiugill 261 ®. Poyas 245 ». Price 190 D. Short 33 ■0. Smith 255, 256 V. Thomas 576 v. Whitmore ' 49, 100 Smithurst v. Edmunds 181 Snedaker, Be 127 Snediker «. Pearson 99 Snowden v. Noah 398 Society «. Butler 314, 536 V. Holsman 8 V. Low 311, 419, 420, 526 V. Morris 282 Sohier j). Merril 100, 101 Soltau «. DeHeld 273, 443 Southard v. Morris 239, 275, 376 South Carolina v. Columbia 333 Southerland ». Crawford 116, 559 Southey v. Sherwood 362 Spangler's Appeal 314 Sparhawk v. Union 15, 17, 461 Sparkman «. Higgins 355 Spencer v. London 292 XXXll TABLE OF CASES CrmXi. Page. Spencer «. Wheaton 205 Spotswood B. Higgenbotliam 65, 68 Spottiewoode «. Clark 390 Sprague v. Rhodes 287 Stagner v. Fox 558 Stainthorp d. Humiston 350 Btanard «. Rogers 63,66 Stansfield «. Habergham 343, 344 Stan- v. Heckart 71, 125 State V. Kispert 475 ■». Mayor 390 -0. McGlynn 8 V. Parkville 215,447 State of Kansas ■». Anderson 443 Stedman v. Webb 519 Steuart v. State 559 Stevens v. Beekman 355, 359, 261 «. Davison 462 V. Keating 341, 357 e. Myers 537 V. Paterson 7 T. South 458 Stevenson v. Miller 556 Steward i). "Winters 345, 417, 431 Stewart v. Chew 363 V. Little Miami 453 «. Raymond 325 Stewart and Foltz's Appeal 297 Stiflf D. Cassell 413, 417 Stillman D. White Rock 384 Stimpson v. Putnam 506 «. Rogers 356 Stites V. Knapp 80,81 St. John's College v. Carter 506 St. Louis V. Alexander 563 V. Goode 193, 200 V. Todd 59 Stockdale v. Ullery 484 Stockton V. Briggs 81 •0. Leeds 13 B. Williams 46, 183 Stokes V. Kuarr 5i i, 82, 199 «. LandOTaff Storer ». Great Western 387 430 Storm 1). Mann 335 Storrs V. Payne 53, 113 Story !). Jersey V. Windsor 13 350 Story's Ex'rs. «. Holcombe 373 Stoutenburgh i). Peck 533, 534 Stowe V. Thomas 883 Strathmore ■!). Bowes 241 Street v. Rider 176 V. Rigby 433 Stringham «. Brown 176, 494 Strodes v. Patton 93, 166 Strong V. Menzies 536 Strutt V. Bovingdon Stubblefield v. Patterson 383 103 Page, Sturgis D. Knapp 557, 558 Sturtcvant v. Milwaukee 531 Stuyvesant «. Pearsall 463, 464 Suffern v. Butler 537 Sullivan v. Judah 498 499, 513 V. Redneld 340, 355 Summers v. Parish 36, 573 Supervisors «. Campbell 313 V. Webster 197 Sutcliffe B. Dohrman 481 Sutter V. Trustees 130, 140 Sutton v. Montfort 378 Swain v. Burnley 167 171, 541 Swaine v. Great 270 Sweatt 'B. Faville 573 Sweet J). Maugham 374, 375 i>. Shaw 370 Swift v. Swift 496 Swindall b. Bradley 148 Sykes v. Manhattan 353 T. Taggart v. Wood 58 Tainter i>. Mayor Talbot V. Ford 227 407, 426 Tallahassee «. Hayward 554 Talley b. Tyree 388 Tamworth v Ferrers 343,243 Tapp «. Beverley 104 «. Rankin 65 Tappan v. National Co. 348, 352 Tartar «. Qibbs 139 Taylor «. Brookman 305 V. Carpenter 389, 391 , 393, 396 V. Dickinson 537 V. Morgan 516, 517 1). Ricards 59 V. Snyder 543 V. Thompson 303 V. Underhill 158 Teaff B.Hewitt 564 Teasey v. -Baker 531 Teller «. Carteret 40 Tenham «. Herbert 9, 35, 36 Terrill e. Southall 87,488 Tevis v. Ellis 151, 189 Thebaut ®. Canova 271, 277 Thomas, Se 128 Thomas v. Jones 252 «. Oakley 361, 365 Thompson v. Brown 489 «. Engle V. MoNair 149 565 V. New York 3^4 ». Stanhope 375, 377 V. Williams 286 TABLE OF OASES CTEED. xxxm Pasb. Th-ornton v. Towns 13 Threlkelds v. Campbell 168 Tliruston v. Mustin 240 Thui-man i). Burt 415, 416 Tichenor b. Wilson 375, 276 Tilghmaa «. Mitchell 345 Tinsley v. Lacy 373 Tipping «. Eckersley 430, 422 Titus 11. Mabee 633, 547 Todd V. Pratt 94, 184 Toledo 1). Lafayette 208 Tomlinson v. Kubio Torrey v. Camden Townsend v. McDonald Tracy v. Torrey Tradesman's Bank v. Merritt Travei-s v. Stafford Treadwell v. Payne Trent v. Cartersville Trenton •». McKelway Triplett v. Turner Troy B. Norment Trueheart v. Price Truesdell's Appeal Truly V. Wanzer 93, 161, 163, 163, 167 Trustees v. Cowen 293, 304, 305, 426, 427, 447 v. Davenport 523 B. Gilbert 540 V. Hoessli 139, 267, 448 13. NicoU V. Stewart ■B. Youmans Tucker v. Carpenter V. Kenniston Tucakoe v. Tuckahoe Tulk V. Moxhay Tuolumne i>. Chapman Tupper «. Powell Turner v. Evans ®. Gatewood ®. Robinson «. Scott ®. Wright Turpin v. Jefferson D. Povall V. Thomas Twart «. Twart Tyler v. Wilkinson 151 218 285 353 536 584 146 337 45, 183 113 6,579 305 311 35 187' 383 26 158 830 435 380, 381 48,49,410 439 104, 124, 508 383 118, 543 341 546 410 62, 67 246 280, 285 U. Uhl 1). Dillon 18 Uhlfclder «. Levy 96 Uhrig V. St. Louis 559, 563 Unangst's Appeal 228 Union -o. Poultney 94, 187 Union Bank v. Kerr 23, 569 Paqb. United States v. Collins 107 v. Duluth 9, 284 «. Gear 263 ■6. Keokuk 44 ■». McLemore 107 ■V. Parrott 36, 261, 570 Universities ®. Richardson 839, 362, 369 Updegraffe. Crans 475 Vail «. Knapp 41, 42, 43 Van Bergen «. Van Bergen 269 Van Cott V. Supervisors 205 Vanderbilt, Me 319, 332, 513 Van Dewater v. Kelsey 522 Van Doren v. Mayor 206, 207, 473 Vane v. Barnard 341 Van Horn «. Keenan 408 V. Talmage 143 Van Houton v. First Church 139 Van Kuren b. Trenton Van Mater v. Conover V. Holmes Van Rensselaer v. Kidd Vansandau v. Rose Vanwinkle v. Curtis Van Wyck v. Alliger Vanzant v. Vanzant Varick v. New York Vass V. Magee Vathir v. Zane Vaughn v. Johnson Vervalen ■». Older Vieley v. Thompson Vilas i>. Milwaukee Vincent v. Chicago Vipan V. Mortlock Vliet «. Lowmason VoUmer's Appeal 485 179 589 206 501 256, 357 388 495 153, 267 116 75 81, 576 249 312 228 382 583, 584 583-535 278 W. Waffle D. Vanderheyden 575 Walcot v. Walker 369 Waldron «. Letson 180 ■1). Marsh 257 Walker V. House 486 ■». Hunt 110 111 113 V. Mad River 452 453 V. Shopardson 291 447 V. Wainwright 133 V. Walker 573 Wall V. Cloud 315 Wallace, Se 118 120 127 Wallis !). Dilley 559 560 XXXIV TABLE OF 0A3KS CITED. Page. Walsh «. Smytli 581 "Walter a. Selfe 374 Walters v. Fredericks 531 Walton ®. Crowley 389 «. Johnson 188 Wangelin «. Goe 366 Ward 11. Davidson 558 V. Society 458 ■». Van Bokkelen 531 Warden i>. South Eastern 427 «. Supervisors 195, 199 Ware o. Grand Junction 13, 458 ®. Horwood 57 Warfel ». Cochran 473 Warfield «. Owens 25 Warne •». Morris 314 Warren •». Clarion 569 D. Supervisors 197, 190 Warwick «. Norvell 34,35 Washburn t>. Gould 343 Washer ■». Brown 527 Washington ij. Emery 6,33 v. Green 3,5 Washington's Ex'r. «. Parks 560 Water v. Hudson 290 Water Lot Company ii. Bucks 429 Waters v. Mattingly 72 Watkins «. Logan 90, 153 Watson ». Farris ' 137 V. Hunter 338, 239 V. Jones 136 V. Palmer 56 Watts t>. Sanders 555, 556 Wehb -0. Boyle 353 v. Portland 279, 385, 315 11. Powers 364, 368 Webber n. Gage 304, 317 Weber n. San Francisco 303 Webster v. Chew 58 V. Couch 21 v. Dillon 430 «. Harwinton 211, 312 «. Skipwith 73, 445 Wedderburn v. Wedderburn 41, 443 Weeks «. Milwaukee 310 Weigel v. Walsh 256 Welch w. Byrns 13 «. Knott 404 ■». Parran 538 Weller v. Smeaton 275, 376 381 Wellesley v. Mornington 805,' 507 Wentworth ii. Turner 353 West v. Belches 111 ■». Flannagan 4S, 187 «. Mayor 35 «• Page 340 B. Smith 517 11. Walker 240, 358 •0. Wayne 73 Westcott n. Gifford 240 Western v. Owings ,/iO., 221 , 11. Woods 114 Western Union i>. Pacit 34 Weston V. Woodcock 269 West Point v. Reymert 262 Wetmore n. Soovell 376 Wharf Case 13 Wharton v. May 40 Wheatou v. Peters 371 Whelpley v. Erie 23, 460 Whipple v. Hutchinsu^ 26, 514, 572 White ®. Clay's Ex'iS. 553 v. Cohen 273 V. Fitzhugix 581 v. Flannigain 357 V. Forboa 370, 386, 387 v. WasUington 80, 84, 409 White's Ex'rti. ii. Guthi-ie 558 White Sulphur Springs Co. ■». Robinsott 216 Whitfield a. Rogers 286, 291 Whitney v. Major 465 Whittakcr«. LLowe 433, 434, 483 Whyte t. O'Brien 88 Wierich ». DeZoya 56, 70, 71 Wiggin 11. New York 206 Wiggins v. Armstrong 18,19, 60,145,146 Wilbur, Re 123 Wilder «. Lee 66 «. Strickland 273 ®. Wilder 401 WUkins v. Aikin 367 n. Hogue 161, 163, 167 Wilkinson ii. Rogers 420, 421 Williams ii. Ayrault 41 v. Bingley 482 v. Davies 88 V. Jersey 302 v. Lee 78 v. Mayor 197, 209 •». McNamara 242 ». Osborne 403, 404 «. Peinny 195, 448 V. Prince.of Wales 15 ». Sadler 30 , V. Smith 291, 293, 447 v. Spence 388, 390 V. Stevens' Adm'r. 528 Williamson v. Carnan 230 v. Raney 171, 173 v. Wilson 486 Williamson's Adm'r. v. Apple- berry 106 Williamson's Adm'rs. a. Hall 553 Wilsey v. Maynard 63, 66 Wilson V. Bastable 66 v. Butler no TABLE OF OASES CITED. XXXV Faob. Wilson V. Oohen 308 v. Davis • 75 V. Hendricks 520 «. Hughell 266 V. Mace 520, 544 «. McEvoy 563 V. Miller 114 «. Robertson 97 V. Sherman 853, 856 «. "Wilson 494 Winans v. Eaton 340 Wincli's Appeal 191 "Winchester v. Grosvenor 85, 86, 106 V. Knight 250 Windwart b. Allen 62, 67 "Winebrenner v. Colder 130, 140 "Wing V. Pairhaven 288 "Wingate v. Haywood 56 "Winkler v. "Winkler 21, 219 . "Winn ®. Albert . 13 "Winnipiseogee v. "Worster 286 "Winship d. Pitts 336 "Wiswell V. First Congregational Church 28, 451 "Witmer's Appeal 18, 257 "Wolbert v. Harris 482 V. Philadelphia 317 "Wombwell v. Bellasyse 343 "Wood ». Beadell 38, 569 V. Brooklyn 466 V. Draper 195 V. Dwight 524, 537 V. Eowcliflfe 449 V. Sutclifife 281, 301 "Wooden v. Wooden 21, 23 WoodhuU V. Neafie 517 Woodley -o. Boddington 505 Woodruflfj). Fisher 9,575 V. Lockerby 313 Wood^ V. Kirkland 258 1). Monroe 85, 36, 44, 184 Woodson «. Barrett 84, 410 V. Johns 559 Woodward v. Earl of Lincoln 498, 505 Paoe. Woodward v. Gyles 434 V. Lazar 396 Woodworth v. Edwards 343, 353, 356 V. Hall 848, 853, 355 ■8. Rogers 6, 853, 356, 359, 580 11. Van Buskerlc 49 V. Weed 853 D. Wilson 356 Woolsey v. Dodge 339 «. Judd 376, 378 Wooten V. Smith 518, 580 Worcester v. Truman 509, 513 Wortman b. Skinner 488 Wotherspoon «. Currie 387 Wright «. Eaton 56 V. Grist 286 V. Moore 381 Wright's Heirs ». Christy's Heirs 146 Wyatt i>. Barnard 383 Wyckoff V. Cochran 576 Wynn d. Wilson 106 Wynne ®. Newborough 443 T. Yancy v. Fenwick 68 Yonge V. McCormick 160, 161, 167, 168 9. Shepperd 60 Young •». Davis 117 V. Frier 18, 60, 483 «. Grundy 533, 524 V. Macrae 387 Youngblood «. Schamp 25, 567, 568 Youngs V. Ransom 188 Zabriskie v. Jersey 295 V. Vreeland 535 Zoll V. Campbell 516 THE LAW OF INJUNCTIONS, CHAPTEE I. DEFINITION, NATURE AND PURPOSE OP THE WRIT. § 1. Definition. 3. Mandatory injunctions. 3. Interlocutory and perpetual injunctions. 4. Object of an interlocutory injunction. 5. Interlocutory injunction not decisive as to the merits. 6. Common and special injunctions. Injunctions in courts of the United States are special. 7. Bill should show some primary equity. Complainant must not be guilty of laches. 8. Writ not usually granted where the legal right is in doubt. 9. Positive injury must be made to appear. Injunction will not be granted to encourage litigation. 10. Utmost care necessary in the exercise of the jurisdiction. 11. Right to preliminary injunction not ex debito justitiw, but addressed to the discretion of the court. 13. The prevention of a multiplicity of suits a favorite ground for the exercise of the jurisdiction. 13. Court will balance relative convenience and inconvenience. 14. Injunctions in cases of trusts. 15. Not usually granted to award possession of property, personal or real. 16. Discretion of court as to preliminary injunctions not subject to review; as to final injunctions may be reviewed. 17. Courts of co-ordinate jurisdiction. 18. Naked, legal right will not be protected which complainant has covenanted not to exercise. Injunction in behalf of the public. 19. Right of petition may be enjoined in England, but not in America. 20. Injunction eflFective from time of notice. Official notice not necessary. 1 2 iNjuKcnoNa. [chap. i. 21. A threatened wrong sufficient ground for injunction. Mere insol- vency not sufficient. 23. Disclosure of confidential secrets may l)e enjoined. 23. Equity will not enjoin the commission of crimes, nor will it restrain the violation of penal statutes. 24. Fraud as a ground of the jurisdiction. 25. Fraudulent transfers. 26. Only judgment creditors may restrain fraudulent transfers. 27. Applications of the rule. 38. General averments of fraud insufficient. 29. Applications of tlie rule. 30. Injunction not allowed where remedy exists at law. 31. Where statutory remedy exists it must be followed. 32. Injunction must he specially prayed. May he granted without bill in certain cases. 83. Wliere injunction can be had by motion new suit will not be enter- tained. 84. Injunction will not be granted against persons and property in a foreign state. 35. Positive averment of facts necessary. 36. Allegations upon information and belief insufficient. 37. Verification of the bill. 38. Cases where verification may be dispensed with. 89. Precision required in the writ. No particular form requisite. 40. Injunction sometimes granted though not prayed for in the bill. 41. Injunction may be reinstated after dissolution. 42. After dissolution new injunction not allowed on the same equities. 43. New injunction not granted ex pwrte after dissolution. § 1. A writ of injunction may be defined as a judicial process, operating m personam, and requiring tlie person to whom it is directed to do or to refrain from doing a particular thing. 1 In its broadest sense the process is restorative as well ' McDonogh d. Calloway, 7 Rob. La. 443 ; Childress v. Perkins, Cooke, Tenn. 87. Jeremy defines an injunction to be " A writ framed according to the circumstances of the case, commanding an act which this Court regards essential to justice, or restraining an act which it esteems contrary to equity and good conscience." Jeremy's Eq., ch. 3, sec. 1, p. 307. Story defines it as "A judicial process whereby a party is required to do a particular ' thing, or to refrain from doing a particular thing, according to the exigency of the writ." 3 Story's Eq., § 861. Again it has been said to be "A pro- hibitory writ, granted by a court of equity, (in the nature of an interdictum in the civil law,) and which maybe obtained in a variety of cases to restrain the adverse party in the suit from committing any acts of violation of the plaintiff's rights, as to stay proceedings at law, to restrain the negotiation of notes ami other securities, to restrain from committing waste or nuisance. CHAP. I.j GENERAL NATURE OT WIUT. 2 as preventive, and it may be used both in the enforcement ot 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 regardetl 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. 3 Nor will a court of equity lend its aid by injunction for the enforcement of right or the prevention ol wrong in the abstract, and unconnected with any injury or damage to the person seeking the relief.* § 2. Injunctions 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 firmly established to admit of doubt. ^ Mandatory injunctions are seldom allowed before a final hearing,* though they may be granted on interlocutory applications.'' It is to be observed, however, that courts of equity rarely interfere to compel the or from infringing a patent or copyright." Burr. Law Diet. So it has been defined as "A prohibitory writ, specially prayed for by a bill, in which the plaintiff's title is set forth, restraining a person from committing or doing an act (other than criminal acts) which appears to be against equity and conscience." Bouv. Law Diet. ' McDonogh v. Calloway, 7 Rob. La. 442. ' Attorney General v. New Jersey etc., 3 Green Ch. 136 ; Washington etc. e. Green, 1 Md. Ch. 97 ; Sherman v. Clark, 4 Nev. 138 ; Blakemore v. Gla- morganshire, 1 Myl. & K. 154. The remedy for injuries already committed, though sometimes given as an incident to an injunction, is only allowed where a suflicient showing for the injunction is made out and the injury has resulted from the act enjoined. Sherman v. Clark, 4 Nev. 138. ' Attorney General v. New Jersey etc., 3 Green Ch. 136 ; Bosley d. Sus quehanna etc., 3 Bland, 63. * Goodrich s. Moore, 3 Minn. 61. * » Garretson o. Cole, 1 Har. & J. 870 ; Kobinson v. Byron, 1 Bro. C. C. 588 ; Hervey «. Smith, 1 Kay & J. 393 ; Martyr «. Lawrence, 8 DeGex, J. & S. 261. ' Gale v. Abbott, 8 Jur. N. S. 987. And see Washington etc. v. Green, 1 Md. Ch. 97 ; Rogers etc. c. Erie etc., 5 C. B. Green, 379. ' Robinson v. Byron, 1 Bro. C. C. 588; Hervey v. Smith, 1 Kay & J. 393. 4 rajtwcnoNS. [chap, i., doing of a positiye act, but tlie 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 redress, or where the injury can not be compen- sated in damages. 2 And in determining whether to gi-ant relief by way of mandatory injunction, courts of equity will take into consideration the relative convenience and incon- venience which would result to the parties from granting or withholding the relief, and will be governed accordingly.^ § 3. With reference to their duration, injunctions are known as interlocutory and perpetual. Interlocutory or preliminaiy injunctions are such as are granted at any time before final liearing, generally upon the filing of the bill, and continue until Lhe 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 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 con- trary to equity and good conscience.* While therefore an interlocutory injunction, being merely provisional in its nature, does not conclade a right, a perpetual injunction, being a final decree upon a full liearing, is conclusive upon all parties in interest. § 4. The sole object of an interlocutory injunction is to preserve the subject in controversy in its then condition and, without determining any questions of right, merely to prevent the further perpetration of wrong, or the doing of any act ' Lane «. Newdigate, 10 Ves. 193; Mexborougli «. Bower, 7 Beav. 137. But see, contra, Akrill ii. Selden, 1 Barb. 316. ' Isenbcrg i). East India etc., 33 L. J. Ch. 393; Deere «. Guest, 1 Myl. & Cr. 516. » Isenberg v. East India etc., 83 L. J. Ch. 393. ■• Grilb. Porum Roman, ch. 11. p. 194. But an injunction will not be perpetuated against a party without having him before the court. Chap- man V. Harrison, 4 Eand. 336. CHAP. I.] GKNKEAL NATUEH OF AVJEIT. 5 whereby the right in controTersy may be materially injured or endangered. It can not be used, for the purpose of taking property out of the possession of one party and putting it into the possession of another, nor does it go to the extent of order- ing defendant to undo what he has already done, since it might thereby be productive of as much injury to defendant as that of which the party aggrieved complains, i The jurisdiction therefore being exercised to prevent the further continuance of injurious acts, rather than to undo what has already been done, on an interlocutory application for an injunction courts of equity will only act prospectively, and will interpose only such restraint as may suffice to stop the mischief complained of and preserve matters m statu quo. ^ § 5. It is to be constantly borne in mind, that in granting temporary relief by interlocutory injunction courts of equity in no manner anticipate the ultimate determination of the questions of right involved. They merely recognize that a sufficient case has been made out to warrant the preservation of the property or rights in issue m statu quo until a hearing upon the merits, without expressing, and indeed without having the means of forming any opinion as to such rights. And in order to sustain an injunction for the protection of property pendente lite it is not necessary to decide in favor of complainant upon the merits, nor is it necessary that he should present such a case as will 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 ultiniately fail.^ ' Murdock'a Case, 2 Bland, 461; Bosley v. Susquehanna, 3 Bland, 63; Farmer's etc. v. Keno etc., 53 Pa. St. 224; Washington etc. «. Green, 1 Md. Ch. 97. ° Blakemore ti. Glamorganshire etc., 1 Myl. & K. 154. The principle upon which the jurisdiction is exercised is clearly stated in this case by Brougham, Chancellor, as follows ; " The leading principle then on which I proceed in dealing with this application, the principle which, as I humbly conceive, ought, generally speaking, to be the guide of the court, and to limit its discretion in granting injunctions, at least where no very special circum- stances occur, is, that only such a restraint shall be imposed as may suffice to stop the mischief complained of, where it is to stay a further injury, to keep things as they are for the present." ' Great Western etc. v. Birmingham etc., 3 Ph. 597. 6 rNjuNcrnoNS. [chap. i. § 6. Interlocutory injunctions are distinguished as common and special. The common 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 usually issued as of course upon 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. 1 Injunctions in the courts of the United States, being granted only upon notice to the opposite pai-ty in accord- ance with statute, 2 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 irrepai-able injury.* § 7. 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.* And it is incumbent upon the party seeking relief by interlocutory injunction to show some clear legal or equitable 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 have been guilty of laches or delay in the assertion of his rights; for, while delay may not amount to proof of acquiescence in the wrong ' See as to distinction between common and special injunctions, Wood- wortli V. Kogers, 3 Woodb. & M. 135 ; Purnell «. Daniel, 8 Ired. Eq. 9 ; Troy e. Norment, 2 Jones Eq. 318 ; Peterson v. MattWs, 3 Jones Eq. 81. « See Act of Congress, March 3, 1793, okap. 22, § 5. " Perry v. Parker, 1 Woodb. & M. 280. ' * ■■ Patterson v. Miller, 4 Jones Eq. 451 ; Washington v. Emery, lb. 29 ; Scofield V. Bokkelen, 5 Jones Eq. 342; McRae d. Atlantic etc.^lb. 395, ' Scott «. Burton, 3 Ashm. 312. « Kean «. Colt, 1 Halst. Ch. 365. CHAP. I.J GENERAL NATIERE OF WEIT. 7 for whicli he seeks redress, it may yet suffice to prevent his obtaining relief by injunction, i § 8. The writ of injunction, being largely a preventive remedy, will not ordinarily be granted where the parties are in dispute concerning their legal rights, until the right is established at law.^ And if the right for which protection is sought is dependent upon disputed questions of law which have never been settled by the courts of the state, and con- cerning which there is an actual and existing dispute, equity will withhold relief until the questions of law have been deter- mined 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 m statu quo until the determination of the controversy, an interlocutory injunction may properly be allowed.* In such eases .courts of equity do not assume jurisdiction to dispose of the legal rights in controversy, but confine themselves to protecting those rights as they then are, pending an adjudication upon the legal questions involved. ^ And it is proper to accompany an injunction granted under such circumstances with a provision for a speedy investigation at law of the questions involved in dispute.* ' Dulin «. Caldwell, 38 Geo. 117 ; Attorney General v. Sheffield etc., 3 DeGex, M. & G. 304. 2 Hart ». Mayor etc., 3 Paige, 313 ; Mammoth Vein Co.'s Appeal, 54 Pa. St. 183. And see Perry®. Parker, 1 Woodh. & M. 380 ; Chesapeake etc. v. Young, 3 Md. 480. In Mammoth Vein Coal Co.'s Appeal, 54 Pa. St. 188, which was a bill for an injunction where parties claimed under different leases of the samecoalveins, the relief was denied, the court, Thompson J., saying: "It ought not to be forgotten that a preliminary injunction is a restrictive oi 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 unquestioned rights, the prevention of irreparable mischief or injury. As a preliminary injunction is, in its operation, somewhat like judgment and execution before trial. It is only to be resorted to from a pressing necessity, to avoid injurious con- sequences which can not be repaired under any standard of compensation. It is therefore a preventive remedy only." ' Stevens v. Paterson etc., 5 C. E. Green, 136 ; Higbee v. Camden etc., lb. 435. * Harman v. Jones, 1 Cr. & Ph. 399 ; Lowndes «. Bettle, 33 L. J. Ch., 451. » Hai-man v. Jones, 1 Cr. & Ph. 399. •Id. S nsTJUNanoNS. [chap. i. § 9. 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 whicb, tbougb irregular and unautborized, can have no injurious result, constitute no ground for the relief. ^ So it is a fatal objection to granting an injunction for the protection of projDerty pending 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. 2 And in no event will an injunction be granted whose eifect would be to encourage litigation and a multiplicity of suits, thereby retarding instead of promoting justice. ^ § 10. Interlocutory 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 allowed upon a clear necessity being shown of affording immediate protection to some right or interest of the party complaining which would otherwise be" seriously injured or impaired.* 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 ease complainant succeeds in his cause, a preliminary injunction will be withheld, no alteration or change being shown as threatened or impending. ^ § 11. The right to a preliminary injunction is not ex debito justitioB, but the application is addressed to the sound discretion of the court to be guided according to the circum- stances of the particular case. Hence it is the right and duty of the court or officer granting the writ to require a full dis- closure of the facts, and where it is apparent that such disclo- sure has not been made the relief may properly be refused. « But where the danger threatened is of a nature that can not ' Rogers «. Michigan etc., 28 Bart. 539; Head «. James, 13 Wis., 641. ^ State «. McGlynn, 30 Cal. 233. ' Bndicott v. Matliis, 1 Stockt. 110. ■■ Osborn «. Taylor, 5 Paige, 515. ' Society etc. «. Holsman, 1 Ualst. Ch. 126. « Reddall «. Bryan, 14 Md. 444. CHAP. I.J GENERAL NATUEE OF WETT. 9 easily be remedied in case of a refusal of relief, and the answer does not deny that the act charged is contemplated, an inter- locutory injunction should be allowed unless the equities of the bill are satisfactorily refuted by defendant, i § 12. Tlie prevention of vexatious litigation and of a mul- tiplicity of suits constitutes 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 ordi- nary 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 controversy which is to be established by or agains/ several persons, one person asserting the right against many or many against one, equity may interfere, and instead of per- mitting the parties to be harassed by a multiplicity of suits determine the whole matter in one action. ^ Complainant however, may be required in such cases to first establish hie right at law as a condition precedent to relief in equity.* > United States v. Dulutli, 1 Dillon's C. C. 469. This was a bill for an injunction to protect certain improvements undertaken by the United States in its navigable waters from injury resulting from works carried on by state authority. Numerous afBdavits of engineers and others were ofiEered on both sides as to the effect of the work sought to be enjoined, the opinions expressed being quite conflicting. The court, Miller, J., say: " The afBdavits on both sides are numerous. They demonstrate what all courts and juries have so often felt, that where the question is one of opin- ion and not of fact, though that opinion should be founded on scientific principles or professional skill, the inquiry is painfully unsatisfactory, and the answers strangely contradictory. In this emergency I am relieved by a principle 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 threatened is of a character which can not be easily remedied if the injunction is refused, and there is no denial that the act charged is contemplated, the temporary injunction should be granted, unless the case made by the bill is satisfactorily refuted by the defendant. In this case I am not satisfied that it is so refuted." ' Pennsylvania etc. v. Delaware etc., 31 N. T. 91. 3 Tenham v. Herbert, 2 Atk. 483 ; Sheffield etc. ■». Teomans, 2 L. R. Ch. App. 8. And see Orews v. Burcham, 1 Black, 852 ; Woodruff v. Fisher, 17 Barb. 224. ^ Pennsylvania etc. v. Delaware etc., 81 N. T. 91. 10 INJUNCTIONS. [chap. I. § 13. Where the legal right is not siifficiently clear to enable a court of equity to form an opinion, it will generally be governed in deciding an application for a preliminary injunction by considerations of the relative convenience and inconvenience which may result to the parties from granting or withholding the writ. And where, upon balancing such con- siderations, 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 withholding the relief, or where the inconvenience 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. ^ Where a clear case of irreparable injury is shown 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. 2 § 14. 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 proba- bility of great danger from delay will jiistify a court of equity in divesting a trustee of his trust until he has had an oppor- tunity of answering. 3 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 ' Cory V. Yarmouth etc., 3 Hare, 593 ; Shrewsbury etc. i). Shrewsbury etc., 1 Sim. N. S. 410; Attorney General v. Mayor etc., 1 Myl.& Or. 171; Green- halgh 11. Manchester etc., 3 Myl. & Cr. 784. And see Hilton v. Granville, 1 Cr. & Ph. 383 ; Morris etc. v. Prudden, 5 C. E. Green, 530. ' Brown i). Pacific etc., 5 Blatch. 525. ' Boyd D. Murray, 3 Johns. Ch. 48 ; Ogden «. Kip, 6 Johns. Oh. 160. * Boyd V. Murray, 3 Johns. Ch. 48. CHAP. I.] GENEBAL NATOEE OF WKTF. 11 directors sufficient ground to warrant a court of equity in interfering, there being no charge of abuse of trust or fraud in the management of the ordinary financial concerns of the bant.i § 15. 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 con- flicting rights to the possession of property, either personal oi real, a court of equity wiU not upon the unsupported showing of the bill grant an injunction whose efiect 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.* Where, how- ever, defendant's possession is but an interruption of the prior- and lawful possession of complainant, whose right is clear and cet-tain, equity may interfere without compelling complainant to establish his title by an action at law.* And an injunction restraining plaintiff in an action at law from molesting defend- ants in the possession and enjoyment of their property will not prevent the plaintiff irom proceeding with his action to try the right. ^ § 16. 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 exercised according to the circumstances of each particular case.' It follows there- 1 Ogden V. Kip, 6 Johns. Ch. 160. ° Martin ■». Broadus, Freem. Ch. 35 ; Deklyn v. Davis, Hopk. Ch. 135. And see Conway, ex parte, 4 Ark. 803 ; McGee v. Smith, 1 C. E. Green, 463. » Kelly V. Morris, 31 Geo. 54. * Conway, ex pa/rte, 4 Ark. 303. ' Mayor v. Magnon, 4 Mart. La., O. S. 3. « Reddall v. Bryan, 14 Md. 444. This discretion, however, is Dy no means an arbitrary one, and is to be exercised in accordance with established principles of law and equity. It has been well said that "The discretion which is to be exercised here is to be governed by the rules of law and, equity, which are not to oppose, but each in its turn to be subservient 12 isjxnsrcfnoNS. [chap. i. fore that the exercise of this discretion is not ordinarily subject to review on error or appeal by a higher court. ^ Nov will mandamus lie to control an inferior court or judge in the exer- cise of such discretion. 2 Eut with respect to perpetual injunc- tions the case is somewhat diiferent, and it is error for the court on final hearing to wrongfully make the injunction per- petual or to wrongfully refuse so to do, and such decree may be reviewed by an appellate court. ^ § 17. "Where one court has in the exercise of its discretion refused an application 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 jurisdiction 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 hearing of a motion to dissolve.* But where one of to the otlier. This discretion in some cases follows the law impli- citly; in others assists it and advances the rendedy; in others again it relieves against the abuse or allays the rigor of it; but in no case does it contradict or overturn the grounds and principles thereof, as has been sometimes ignorantly imputed to this court. That is a discretionary power which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with." Lord Rom- illy. Master of the Rolls, in Haywood b. Cope, 25 Beav. 151, quoting from the Master of the Rolls in Burgess «. Wheate, 1 Eden, 314. ' Marble v. Bonhotel, 35 111. 340 ; Hobart v. Ford, 6 Nev. 77. And see Hilbish V. Catherman, 60 Pa. St. 444. Though it would seem that an abuse of such discretion may be reviewed by the appellate tribunal. See Thornton ®. Towns, 34 Geo. 135; Edwards u. Banksmith, 35 Geo. 313; Johnson ». Allen, lb. 252. And see opinion of Potts, J., in Attorney General d. Patter- son, 1 Stockt. 634. ' Hays, expoHe, 26 Ark. 510; McMillen «. Smith, lb. 613. ' Marble «. Bonhotel, 35 111. 340. The power of revision in such cases is sometimes determined by statute. Thus in Arkansas it is held that the granting and refusing of injunctions being the exercise of a mere minis- terial discretion, and the constitution and laws of the state in establishing the circuit court system having given this power expressly to those tribu- nals in term time, and to the judges thereof in vacation, if an injunction has been improperly refused the appellate court will award a peremptory mandamus to the judge of the inferior court, commanding him to grant the writ. Conway et al., ex parte, 4 Ark. 803 ; Pile et al., ex pa/rte, 9 Ai-k. 336. * Welch «. Byi-ns, 38 111. 20. And a clerk refusing to issue the writ may be punished for contempt. Id. CHAr. I.J GENERAL NATUEE OF WIOT. 13 two courts of co-ordinate jurisdiction and powers has obtained jurisdiction of a cause it should retain it until finally disposed of, and though both courts may have authority to grant injunc- tions, yet if one tribunal propei-ly having cognizance of the case has exercised its jurisdiction the other should refuse to interfere.! § 18. Equity will 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 perfoi-m all that complainant upon his own showing is entitled to. ^ And where it is appa- rent 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.* § 19. The jurisdiction of equity over the right of petition and its authority to restrain private citizens or corporations from invoking legislative action upon public or private inter- ests, is recognized by the English Court of Chancery which will, upon a sufficient showing, restrain parties within its jurisdiction from petitioning Parliament, ^ or the legislature ol a foreign country.* Notwithstanding the English doctrine, however, the courts of this country refuse to recognize the jurisdiction, and decline to interfere with or enjoin the exer- cise of the right of petitioning the legislature upon any matter of public or private concern.'' § 20. An injunction becomes effective as to the party enjoined only from the time of actual notice. ^ But it lias the ' Wiun V. Albert, 3 Md. Ch. 43. ' Bosley «. McKim, 7 Har. & J. 468. ' Behn ®. Young, 31 Geo. 307. ■« The Wharf Case, 3 Bland, 361. ' Ware v. Grand Junction etc., 3 Russ. & M. 470 ; Stockton etc. ■». Leeds etc., 3 Ph. 666. « Bill «. Sierra Nevada etc., 1 De Gex, F. & J. 177. ' Story V. Jersey etc., 1 0. E. Green, 13. » Ramsdall v. Craighill, 9 Ohio, 197. 14 rtTJOTTCTIONS. [CH-4F. I. effect of suspending the statute of limitations and a plea of the statute in an injunction case is therefore of no avail. ^ And to render an injunction binding and operative upon a defendant it is not necessary that he should have been officially apprised of its existence, or actually served vsdth the writ. And where a defendant has heard the order of the court granting an in- junction, or has in any manner received actual notice of its existence, he is as effectively bound by its provisions as if actually served with process. ^ So if an injunction has been properly granted it will be effective if sei-ved 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. ^ § 21. The remedy by interlocutory injunction being preven- tive 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 commission of a wrong which is within their power is sufficient ground to justify the interference.* But the mere insolvency of a defendant, or his inability to respond in damages at law, though it may properly be taken into consideration upon an application for the extraordinary aid of equity by injunction, does not of itself constitute a sufficient foundation for the relief ^ § 22. 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 rela- tionship has existed between parties, out of which one of the ' Little V. Price, 1 Md. Ch. 183. « Milne v. Van Buskirk, 9 Iowa, 558; Hull «. Thomas, 3 Edw. Ch. 336; Howe V. Willard, 40 Vt. 654 ; Farnsworth «. Powler, 1 Swan, 1 ; Skip ■». Har- wood, 3 Atk. 564; Heam r>. Tennant, 14 Vea. 136; McNeil «. Garratt, 1 Cr. & Pli. 98. ' Haring v. Kauffman, 2 Beas. 397. ' McArtllur v. Kelly, 5 Ohio, 139. » Heilman v. Union etc., 37 Pa. St. 100. CD^F. I.] GENERAL NATURE OF VrRTT. 15 parties lias derived information or secrets concerning the other, equity fastens an obligation upon his conscience not to divulge such knowledge and enforces the obligation when necessary by injunction. Thus persons who in the capacity of attorneys, agents, or in other confidential relations, 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. ^ The rule, how- ever, does not extend to cases where a fraudulent transaction has come to the knowledge of the person occupying the con- fidential relation, since equity can extend no protection to iniquitous secrets.^ § 23 The subject matter of the jurisdiction of equity being the protection of private property and of civil rights, courts of equity will not interfere for the punishment or prevention of merely criminal or immoral acts, unconnected with viola- tions of private right. Equity has no jurisdiction to restrain the commission of crimes, or to enforce moral 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 will not lend its aid by injunction to restrain the violation of public or penal statutes.^ Thus the relief has been refused to prevent persons from carrying on the business of banking in violation of a statute restraining unincorporated banking associations.* So • Evitt v. Price, 1 Sim. 483 ; Morison v. Moat, 9 Hare, 355 ; Prince Albert V. Strange, 1 Mac. & Gr. 25 ; Lewis v. Smith, lb. 417 ; Williams s. Prince of Wales etc., 23 Beav. 340. « Gartside v. Outram, 3 Jur. N. S. 40. ' Attorney General v. Utica etc., 3 Johns. Oh. 371 ; Sparhawk v. Union etc., 54 Pa. St. 401 ; Babcock v. New Jersey etc., 5 0. E. Green, 296. * Attorney General e. Utica etc., 3 Johns. Oh. 371. The information filed in this case by the Attorney General, ex officio, sought to restrain the defendant, a company incorporated for transacting the business of fire and marine insurance, from engaging in banking operations without authority in its act of incorporation, and in direct violation of a public statute prohibiting unincorporated banking associations. Kent,Chancellor, after suggesting that the question 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 offense against the public, and does 16 INJUNCTIONS. [chap. I. where it was sought to enjoin defendants from running their street cars on Sunday, contrary to a statute making a violation not toucli the enjoyment of property, it ought not to be brought witLin the direct jurisdiction of this court,, whicli was intended to deal only in mat- ters 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 dis- cretion, and when necessity requires it. Assuming the cliarges 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 tlie case renders it indispensable. Thus, in Brown's case, in 2 Vesey, 414, a motion was made for an injunction to stay the use of a market, and Lord Hardwicke said, it was a most extraordinary attempt, and that the plaintiflF had several remedies which he might use. He said it would cause great confusion, to bring into contempt, upon the injunc- tion, all persons who might use the market; and that if the court ought to interpose at all, it would be after the title was established at law. So he observed in another case (Amb, 209. Anon.), that the court granted an injunction to stay the working of a colliery 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 (Attorney General v. Nicbol, 16 Vesey, 338,) on an information filed to restrain the defendant from obstructing the ancient lights of a hospital, he stated that the foundation of this jurisdiction, by injunction, was that head of mis- chief, 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 injunction. If the defendants are carrying on banking operations contrary to law, they ought undoubtedly, to be restrained ; but I can not be of opinion that the operation 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 restraining 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 preliml- narily, by injunction, to put down a public nuisance which did not violate the rights of property, but only contravened the general policy. * * * The plain state of the case, then, is that an information is here 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 prosecution is without pre- cedent in this court, but it is supported by a thousand precedents in the com-ts of law. How, then, can I hesitate on the question of jurisdiction J CEIAV. I.J GENERAL NATURE OF WlilT. 17 of the Sabbath a penal offense, the relief was refused, altbougli the action was brought by pewholders and 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 inju/ria courts of equity will not interfere. 1 The whole question, upon the merits, 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 eflfects 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 stretch- ing them beyond the limits prescribed by the precedents." ' Sparhawk v. Union etc. Co., 54 Pa. St. 401. This was a bill filed by pewholders in churches and owners of dwelling houses along the line ol defendants' street railway, to restrain the running of cars on Sunday. The bill charged that by reason of defendants running their cars on Sunday complainants " 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 unnecessary and unauthorized worldly employ- ment; that they have been, are, and will be thereby deprived from enjoying peaceably, and without interruption the worship of Almighty God in their accustomed 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 pri- vate residences are and will continue to be thereby infringed upon, and their said churches and residences deteriorated 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 emplojrment on the Sabbath day, and that it describes nothing but the consequences which are intended 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, the charge in the bill does no more than describe the fruits of the offense. Rest and quiet, on the Sabbath day, with the right and privilege of public and pri- vate worship, undisturbed by any mere worldly employment, are exactly what thfe statute was passed to protect. 10 Casey, 398. The deprivation of these nrivileees is the sum of the comolaint, and this bill is essentially, therefore, a bill to enforce by Injunction a penal statute. That is not our province, especially at the suit of a private party." g 18 INJUNCTIONS. [chap. I. § 24. Courts of equity in tlie exercise of their general jurisdiction for the prevention of fraud are often called upon to interfere by injunction where fraud constitutes the gra/ua- men 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 govern the interfer- ence of equity in such cases, i § 25. Fraudulent transfers of property, designed to give preference to certain creditors over others, or for the purpose of delaying and hindering creditors, are frequently made the foundation for relief by injunction. And it may be laid down as a general rule that equity will enjoin any transfers of o debtor's property made with intent to defraud and delay his judgment creditors, or to give a portion of such creditors preference over others. ^ And where the main purpose of the bill is to set aside a fraudulent transfer of a debtor's goods and effects, made to delay and hinder his creditors, an injunction is , regarded as a necessary adjunct, and is granted as auxiliary to the general relief sought. ^ § 26. It is to be observed, however, that the jurisdiction is riot exercised in favor of mere contract creditors, or creditors at lai-ge, whose claims are not yet reduced to judgment, and in the absence of statutory provisions authorizing the relief, courts of "equity will not at the suit of other than a judgment creditor interfere by injunction to restrain a debtor from any disposition of his property, however fraudulent, which he may see fit to make.* The priiiciple on which the rule is based is that until ' See Chapters II. and III., post. 2 Hyde «. Elleiy, 18 Md. 496; Witmer's Appeal, 45 Pa. St. 455. » Hyde «. Ellery, 18 Md. 496. * "Wiggins «. Armstrong, 3 Johns. Ch. 144; Holdrege v. Gwynne, 3 C. E. Green, 26; Young ». Frier, 1 Stockt. 465; TJhl v. Dillon, 10 Md. 500; Rich CUAP. I.J , GENERAL, NATUKB OF ■VVETr. 19 the creditoi' has establislied his claim by judgment he has no right to question the acts of his debtor and has no concern witli his frauds ; and to allow the interference on behalf of mere general creditors before judgment would lead to an unjustifi- able and often oppressive interruption of the exercise of the debtor's right to control his property. ^ «. Levy, 16 Md. 74; Phelps «. Foster, 18 111. 309; Bigelow^. Aadress, 31 111. 332 ; Ehodes «. Cousins, 6 Rand. 188. But see, contra, Cottrell v. Moody, 13 B. Mon. 500. 1 "vyiggins V. Armstrong, 3 Johns. Ch. 144. Kent, Chancellor, observes : " This is a case of a creditor on simple contract, after an action commenced at law, and before judgment, seeking to control the disposition of the property of his debtor, under judgments and executions, upon the ground of fraud. My first impression was in favor of the plaintiffs; but upon examination of the cases, I am satisfied that a creditor at large, and before judgment and execution, can not be entitled to the interference which has been granted in this case. In Angell v. Draper, (1 Vern. 399,) and Shirley V. Watts, (3 Atk. 300,) it was held, that the creditor must have completed his title at law, by judgment and execution, before he can question the disposition of the debtor's property; and in Bennet «. Musgrave, (3Ves. 51), and in a case before Lord Nottingham, cited in Balch ». "Wastall, (1 P. Wms. 445,) the same doctrine was declared, and so it is understood by the elemen- tary wi'iters. (INIitford, 115. Cooper Equ. PI. 149.) The reason of the rul u seems to be, that until the creditor has established his title, he has no right to interfere, and it would lead to an unnecessary, and, perhaps, a fruitless and oppressive interruption of the exercise of the debtor's rights. Unless he has a certain claim upon the property of the debtor, he has no concern with his frauds. On the strength of settled authorities, I shall, accord- ingly, grant the motion for dissolving the injunction." So it is said in Rhodes v. Cousins, 6 Rand. 188, to be "well-settled law that none but a judgment creditor can have the assistance of equity to control, prevent, or interfere with in any way, the disposition which a debtor may choose to make of his property. He may destroy it, give it away, convey it fraudu- lently, or sell it and waste the money, and no creditor at large can stop him by injunction. A creditor must have proceeded as far as he can at law. If he means to afl'ect the land, he must have a judgment at law and take his elegit. If the personalty there must be a judgment and execution issued and he must show in his bill that he has done this, or it may be demurred to." An exception has been taken in the case of trespass for malicious injury to property, and a plaintiflF, in such case, before judgment recovered has been allowed to enjoin defendants from fraudulently dispos- ing of their property to evade the payment of such damages as might be awarded in the action at law, the relief being granted on the ground that the ancillary jurisdiction of the court of equity by injunction was neces- sarj' for the protection of plaintiff in his legal remedy. Cottrell v. Moody, 20 INJUNCTIONS. [OHAP. I. § 27. In conformity with tlie principles enunciated in the previous section, an injunction has been refused, pending a trial at law, where it was sought to restrain defendants from disposing of their goods in order that they might be levied upon under the judgment not yet obtained, i So where a clerk has embezzled the goods of his employers and converted them into money which he has deposited in bank to his own credit, he will not be enjoined from disposing of the money on the ground that he has no other property and is about to leave the country, it not appearing that the money was the specific money of complainants, or that it had arisen from the sale ot their goods. ^ Nor will a garnishee be restrained from dispos- ing of his property in the absence of any allegations that there is danger of loss by reason of his insolvency before a trial can be had in the action at law.^ § 28. 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 specific allegations a court of equity will not interfere, although irreparable injury is alleged.* § 29. jSTor is the rule requiring specific averments of fraud relaxed, even where a statute authorizes the interference of equity to restrain fraudulent assignments of a debtor's property in derogation of the rights of creditors before judgment, since in such cases the courts require strong prima facie evidence of the facts on which complainant's equity rests. ^ And mere allegations that complainant fears and believes defendant is about to perpetrate a fraud upon him by placing his effects beyond the reach of his creditors, are not sufficient to justify the court in granting relief.* But it has been held under a statute authorizing injunctions on behalf of general creditors 12 B. Mon. 500. The exception, however, is in conflict with tlie current of axithority. ' Phelps B. Foster, 18 111. 309. ' McKenzie v. Cowing, 4 Cranch C. C. 479. » Bigelow «. Andress, 31 111. 323. * Powell v. Parker, 88 Geo. 644. ' Lanpheimer v. Rosenbaum, 25 >[d. 219. « Hubbard v. Habbard, 14 Md. 356. OHAP. I.J OENJUUiAL NATUKE OF ^VE^r. 21 before judgment, to prevent a fraudulent disposition of the debtor's property, that allegations that the debtor has, by a fraudulent bill of sale, placed his property beyond the reach of legal process are as effective as averments of insolvency, and it appearing that no other property of the debtor can be found, save that covered by the bill of sale, the injunction should be awarded, i § 30. It is always a suflBcient objection to the granting of an injunction 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 prevention 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 injunc- tion will be refused. 8 Thus, where complainant's eqiiity is based upon a claim for unliquidated damages for a substantive injury for which ample remedy exists at law, and there is no impediment to bringing the action in a legal forum, an injunc- tion will not be granted.* 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 aggreived had , an adequate remedy at law, the bill is obnoxious to a demurrer. ^ § 31. Where a positive 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 ' ConoUy v. Riley, 25 Md. 403. ■' Coe -!). Columbus etc., 10 Ohio St. 373; Coughron v. Swift, 18 111. 414; "Winkler v. Winkler, 40 111. 179 ; Poage «. Bell, 3 Rand. 586 ; Webster v. Ooucb, 6 Rand. 519 ; Akrill v. Selden, 1 Barb. 316 ; Sherman v. Clark, 4 Nev. 138 ; Mullen v. Jennings, 1 Stockt. 193 ; Wooden «. Wooden, 2 Green Ch. 439. ' Mullen ■». Jennings, 1 Stockt. 193; Hart v. Marshall, 4 Minn. 394. * Webster «. Couch, 6 Rand. 519. » Winkler ». Winkler, 40 111. 179. 22 rNjUNcrnoNS. [chap. i. 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 circumstances warranting the inter- position of the extraordinary aid of courts of equity, such courts will not interfere to protect a purely legal right, pro- perly triable at law.^ And the assertion of a right whose ' Brown's Appeal, 66 Pa. St. 155. In this case a landlord had begun proceedings before a justice of the peace, in pursuance of a statutory remedy, to recover possession of premises demised ; before judgment the proceedings were enjoined in the Common Pleas. Thompson, C. J., says: "The Landlord and Tenant Act, of 1863, provides an ample remedy whereby to recover possession of leased premises when it is alleged that the term has expired. It is not a one-sided remedy, for it allows the defendant ample scope to allege and prove any legal defense he may have against the plaintiif's demand, with the right of review by appeal or c&rtiorwri. It is a complete system for that species of controversy. I do not know that it is a wise system ; that may be doubted, but it is complete in itself. Proceedings under this system were legally and regularly begun by the defendants, as appears by the records before us ; but before a final result was arrived at, the Court of Common Pleas interposed by injunction and stopped them. The reason assigned for this was, supposed hardship upon the plaintiffs, if the plaintiffs in the proceeding repossessed them- selves 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 correctional process. That was to be done by the process provided in the act, yiz. : by appeal or csrUoi-a/ri. These were the legal matters provided 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 irreparable mischief. The 'law injures no one' is a niaxim which inculcates obedience to law. Where positive law in point of fact injures, it is the legislature which must furnish the corrective ; courts can not. Irreparable damages can not be alleged against statutory remedies legally pursued, and that was the case of the plaintiffs before the magistrate. These principles are plain, and need neither authority nor elaboration to substantiate. We think the court below had no jurisdiction in equity to restrain these defendants from proceeding under the Landlord and Tenant Act referred to, to try their right to repossess 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." * Wooden d. Wooden, 3 Green Ch. 429. OHAP. I.J GKlffiKAL NATURE OF WKIT. 23 existence or non-existence is properly determinable at law, and the exercise of which can do no injury to the party denying 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 sua sponte, since it goes to the jurisdiction of the forum. ^ § 32. Interlocutory injunctions are usually, though not always, granted upon the filing of a bill setting forth com- plainant's equities and concluding with a prayer for the relief. But the writ will not be granted under the general prayer of the bill, and it must be specifically prayed, as well in the prayer for process as in that for relief; otherwise the bill is demurrable.* And though the omission of the prayer for the injunction is regarded as a defect in form, yet it is error to grant ail injunction upon a bill thus defective.* Where, how- ever, a court of equity has already acquired jurisdiction over the subject 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 consequence of his being either actively 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 without the filing of a bill.^ But the writ will not be allowed in an improper case, even by the consent of both parties, especially where the rights of third persons intervene.^ ^ Doughty ■». Somerville etc., 8 Halst. Ch. 51. ' Parker v. Winnipiseogee etc., 3 Black, 545. The decision ia based upon the sixteenth section of the Judiciary Act of 1789, which provides that " suits in equity sliall not he sustained in either of the courts of the United States in any case where plain, adequate and complete remedy can be had at law." ' Lewiston etc. v. Franklin etc., 54 Maine, 403 ; Union Bank v. Kerr, 3 Md. Ch. 460; "Wood v. Beadell, 3 Sim. 373. " Primmer v. Patten, 33 111. 538. ' In the matter of Hemiup, 3 Paige, 316. * Whelpley «, Erie, 6 Blatch. 371. 24 INJUNCTIONS. [chap. I. g 3-S. WKc'if. an injunction is sought merely as auxiliary to an aetion alrf.ady begun, and 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 iujunction, since the exercise of the jurisdic- tion under such circumstances would be an encouragement to vexatious litigation. ^ § 34. The jurisdiction of equity by way of injunction being, as we have already seen, strictly m 'personam, it will not be exercised against persons and property beyond the borders of the state in which the proceedings are instituted. Neither law nor comity between distinct state governments recognizes the authority of one state to exercise jurisdiction over citizens and property beyond its borders. ^ § 35. An injunction, being a harsh remedy, will not be granted in the_ first instance except upon a clear prima facie case and upon positive averments of the equities on which the application for the relief is based. And while it is not essen- tial that complainant should establish his case upon an application for an interlocutory injunction with the same degree of certainty that would be required upon the final hearing, he must nevertheless allege positively the facts constituting his grounds for relief ^ Thus it is well established that the mere allegation of irreparable 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.* Nor will merely argumentative allegations, or inferences from the facts stated, suffice to meet the requirements of the rule.^ § 36. The relief will not ordinarily be allowed where the facts upon which complainant's equities rest are ctj.ted only upon information and belief, but they should be made tc ' Hamer «. Kane, 7 Nev. 61. « "Western Union etc. ii. Pacific etc., 49 111., 90. ' ' Jones «. Macon etc., 39 Geo. 138; Perkins v. Collins, H Gjteen Ch. 483; Holdrege v. Gwynne, 3 0. E. Green, 26 ; Campbell ■». M( i-nnon, 7 Paige, 157 ; Bank of Orleans v. Skinner, 9 Paige, 305 ; Bogert B Haight, lb. 297. ■• Branch etc. v. Supervisors, 18 Oal. 190. ' Battle !). Stephens, 33 Geo. 35. CliAr. I.J GENEEAL NATHEE OF WKTT. 25 appear by positive averments founded on complainant's own knowledge,! or that of some person cognizant of the facts.* ISTor will it suffice that the averments of the bill are made upon the information of the party complaining without stat- ing 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 tlie 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.* Nor do the mere apprehensions and fears of complainant, unsustained by facts establishing their probability, constitute a sufficient ground to warrant the interference of equity by injunction.^ § 37. As regards the verification of the bill on which the writ is granted, it is held that the affidavit should be such as to submit the party to the penalties of perjury if its aver- ments prove untrue, and it is not sufficient to swear that the material allegations are true on knowledge and belief.^ !tfor will it suffice that the party verifying swears absolutely to the truth of the " material facts " of the bill, it being too uncertain what are the material facts.' !Nor is it sufficient that he swears that the facts and allegations of the bill, which render an injunction necessary, are true and correct. ^ § 38. Although it is generally requisite that an injimction bill should be verified by the oath of complainant or other person cognizant of the facts, yet this is not in all cases indis- pensable. It will suffice if the confidence of the court is obtained, and this may be done as well by documentary evi- dence where such evidence satisfactorily establishes complain- ' Jones V. Macon etc. 39 Greo. 138 ; Armstrong v. Sanford, 7 Minn. 49. ' Youngblood v. Schamp, 2 McCart. 42. » Blondheim «. Moore, 11 Md. 365. * Dinehart v. Lafayette, 19 Wis. 677. » Warfield v. Owens, 4 Gill, 364. « Eeboul's Heirs t>. Belirens, 5 La. 79 ; Catlett e. McDonald, 13 La. 44, ' Sauvinet «. Poupono, 14 La. 87. » Hebert v. Joly, 5 La. 50 ; Ricard's Heirs o. Hiriart, lb. 244. 26 iNjuNcinoNS. [chap. i. ants' 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 defendants under oath.^ If, however, the bill charges forgery as one of the grounds for relief, a denial in the answer, upon information and belief, will not prevent the issuing of the writ.* § 39. The virrit of injunction should contain a description of the particular things or acts concerning which the defend- ant is enjoined, in order that there may be no opportunity for misapprehension. 5 No particular form, however, is required, and the writ will, of course, be varied to meet the peculiar circumstances of each particular case. It is sufiicient that it be an authentic notification to the defendant of the mandate of the court, which he must then obey at his peril. * § 40. 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, though no injunction is sought by the bill.^ § 41. 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 always open for this purpose.' And where sufiicient facts are stated in a ' Negro Charles v. SheriiBf etc., 12 Md. 274. ' Hawkins e. Hunt, 14 111. 43. ' Lady Bryan etc. v. Lady Bryan etc., 4 Ner. 414. < United States ii. Parrott, McAll. C. C. 271. " Whipple V. Hutchinson, 4 Blatch. 190. « Summers v. Farish, 10 Cal. 347. ' Blomfleld v. Eyre, 8 Beav. 250. ' Groodman v. Kine, 8 Beav. 379. « Tucker v. Carpenter, Hemp. 441 ; Radford's Ex'rs. e. Innes' Executrix, 1 Hen. and Mun. 8 ; Billingslea i). Gilbert, 1 Bland, 568. In Tucker v. Carpenter, Johnson, J., delivering the opinion of the court, says ; " A writ of injunction may be said to be a process capable of more niodifi,cations than any other in the law ; it is so malleable that it may be moulded to suit CHAP. I.] GENERAL NATUBE OF VTRTT. 27 snpplemeutal bill to warrant an injunction it mil be granted, altliongh the injunction granted on tbe original bill has been dissolved. ^ 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; itmtist 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. 2 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.^ § 42. Under a statute prohibiting a second ex parte appli- cation 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 argu- ment, the court has dissolved an injunction granted on the original bill, and complainant then applies to another officer, &JC parte, upon a bill containing substantially the same grounds, no injunction 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 apparent that the second bill is filed in the interest of the former complainant in whose behalf the relief is sought, an injunction fldll be refused.* § 43. 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 the various circumstances and occasions presented to a court of equity. It is an instrument in its hands capable of various applications for the pur- pose of dispensing complete justice between the parties. It may be special, preliminary, temporary, or perpetual ; and it may be dissolved, revived, continued, extended, or contracted; in short it is adapted and used by courts of equity as a process for preventing wrong between, and preserving the rights of parties in controversy before them." ' Fanning v. Dunham, 4 Johns. Ch. 35. 2 Bank cf U. 8. «. Schultz, 3 Ohio, 61. s Lowry «. McGee, 5 Yerg. 338. * Cummins v. Bennett, 8 Paige, 79. ' Harrington ®. American etc., 1 Barb. 3'44. « EniJicott V. Mathis, 1 Stockt. 110. 28 INJUNCTIONS. [OHAP. L 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. 3 "Where an injunction has already been granted and is still in 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 continue or perpetuate an injunction after the cause for which it was granted has been removed and the rights ot complainant 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. ^ ' Buckley «. Corse, Saxt. 5Q4. 2 Calderwood «. Trent, 9 Kob. La. 237. ' Hornor «. Leeds, 2 Stockt. 86. The reason for tlie rule is forcibly stated in this case by Williamson, Chancellor, as follows : " I lay down the rule that where an injunction has been dissolved for want of equity in the bill, this court ought not to grant an ex, pa/rte injunction upon an amended bill, or upon a new bill supplying that equity. If a complainant is willing to swear to a case fitting the opinion of the court, the rights of a defendant should not be interfered with upon such a bill, without afiord- ing the defendant an opportunity of being first heard." * Livingston «. Gibbons, 4 Johns. Ch. 571. ■' Wiswcll «. First Congregational Church, 14 Ohio St. 31. * Clark ». Young, 2 B. Mon. 57. CHAT, n.] ACTTONS AT LAW. OHAPTEE 11. OF INJUNCTIONS TO KESTRAIN PROCEEDINGS AT LAW BEFORE JUDGMENT. I. Gkouitds op the Jurisdiction. II. Suits in Forbisn Courts. III. Suits Pertaining to Real Estate. IV. Special Cases. I. Geouuds of the Jtjeisdiction. § 44. Courts of equity do not restrain comts of law, but only parties litigant. 45. General rule, and illustrations thereof. 46. Suit will not be enjoined where defense may be made at law. 47. Parties will be confined to the original forum. 48. Of suits in equity. 49. Bill should show state of the pleadings at law. 60. Of the parties to the suit. 51. Where application should be made to the court in action pending. 53. Of confessing judgment before obtaining injunction. 53. Bill of peace. / 54. Injunction not allowed merely to obtain consolidation of suits. H5. Where defense can not be made at law; suits on notes, ^v 56. Failure of consideration. .^ § 44. No branch of tlie jurisdiction of equity by injunction is so frequently invoked as that which pertains to the restraint of judicial proceedings, both before and after judgment. In the exercise 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 tribunals. The injunction is directed, not to the court, but to the litigant parties, and in no manner denies the jurisdiction of the legal tribunal. It merely seeks to control the person to whom it is 30 EMJUNOnOKS. [CHAI'. II. 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 being made of the legal forum which, from circumstances of which equity alone can take cognizance, should be restrained lest an injury be committed wholly remediless at law.i § 46. 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. 2 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 entered into on mistaken and false representations, the proceedings 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 fraudiilent 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 sub- stance. ^ 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 sufficient ground for restrain- ing a suit upon the note. ' But fraudulent representations made ' 2 Story's Eq., § 875 ; Hill v. Turner, 1 Atk, 516. In Williams v. Sadler 4 Jones Eq. 378, it is lield that tlie ordinary and usual course is to allow proceedings as far as judgment, and to interfere only for the purpose of enjoining tlie execution. I am not aware of any other authority holding this doctrine, and it may he regarded as the well-settled practice of coijrts of equity to interfere, on proper cause shown, at any stage of the proceed- ings, without waiting for judgment to be had. 2 3 Story's Eq., § 885 ; Sacket v. Hillhouse, 5 Day, 551 ; Dale v. Roose- velt, 5 Johns. Ch. ITl; Field v. Cory, 3 Halst. Ch. 574. 8 Field v. Cory, 3 Halst. Ch. 574. •> Dale V. Boosevelt, 5 Johns. Ch. 174. * Sacket v. Hillhouse, 6 Day, 551. 6 Id. ' Remhert v. Brown, 17 Ala. 667. CHAT. n.J ACnONS AT LAAV. 31 bj the payee to tlie maker of a promissory note, will not war- rant an injunction against a suit by a bona Jide holder of the note for valuable consideration, i Nor will the prosecution of a writ of error to a judgment be enjoined because of mistakes in the bill of exceptions, no fraud being shown.^ The injunc- tion will be dissolved where the answer fully disproves the allegations of fraud, and shows a iona fide debt and full con- sideration, 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 mis- take, must be shown sufficient to deprive the person aggrieved of a defense 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. ^ § 46. 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 proceed- ings will not be enjoined on grounds of which the person ' Douglierty c. Scudder, 3 C. E. Green, 248. ' Ford i>. Weir, 24 Miss. 563. ' Jackson v. Darcy, Saxt. 194. * Eogers ■». Cross, 3 Chand. 84. * Butch 1}. Lash, 4 Iowa, 215. But see, contra, Rogers v. Cross, 3 Chand. 34. Butch o. Lash illustrates very clearly some of the grounds upon which equity will interpose to stay proceedings at law. Complain- ant in the injunction 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 appellate court, Wright, C. J., saying : " The respondent's action was brought to test the legal title 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 record the deed to Linder, complainant was unable to show a complete chain by the title papers or record. And, under such circumstances, we think he was fully justified in asking equitable aid to ascertain the existence of such deed. We can not say tliat his defense would have been adequate and complete at law. But a further and conclusive consideration in favor of the bill, is, that complainant 32 iNjTJNcrnoNS. [chap. u. aggrieved may avail himself in defense of the action at law. ^ 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 action at law, he will not be allowed to enjoin the prosecution of such suit until after he has obtained a decree in equity.^ JSTor, in such ease, will the neglect of the defendant in the chancery suit to object to the jurisdiction of the court, entitle complainant to a preliminary injunction restraining the suit at law.^ So pro- ceedings 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 can be relied upon in defense ot the action at law.* 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 refased 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 ol the remainder.^ Ifor 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 equitable action it is equally as competent for him to urge such asked equitable interposition on the ground of accident, and to remove a cloud upon his title. To relieve against an injury resulting from acci- dent, is a very ancient branch of equitable jurisdiction. =5 * * xhe loss of the deed is expressly shown by the complainant's sworn bill ; there is no pretense that it occurred from any negligence or misconduct on his part. The respondent had procured a conveyance from the county, which was a cloud upon complainant's title; and to avoid the eflfect of this loss, and remove this cloud, he might reasonably and properly ask relief at the hands of the chancellor." ' New York etc. d. American etc., 11 Paige, 384.; Beauchamp v. Putnam 34 111. 378; Smith v. Short, 11 Iowa, 523; Powell «. Chamberlain, 22 Geo 123; Gibson v. Moore, 33 Tex. 611. But see, contra, Bullitt's Bx'rs. v. Song ster's Adm'rs.,3 Munf. 55. ' New York etc. v. American etc. 11 Paige, 384. 'Id. * Gibson v. Moore, 22 Tex. 611. ' Ohadoin v. Magee, 20 Tex. 476. » Powell 0. Chamberlain, 22 Geo. 123. CHAT. n.J ACTIONS AT LAW. 33 matter in his answer to that action as in a bill to enjoin, i So where the illegality of an instrument is apparent upon the face of the instrument itself, so that lapse of time can not 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 instru- ment, the rule is otherwise.^ § 47. The propriety of confining litigation to the forum in which it is first commenced, 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 application of the rule affected by the fact that the court subsequently 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.'' § 48. It is also to be observed that an injunction Mali not be allowed against an action at law, pending a suit in chancery embracing the same subject matter and in which the relief, if necessary, might be granted.^ ISTor will equity usually grant an injunction to stay proceedings in the same court of equity, either on the application of parties to the suit or of a stranger, since a departure from the rule would lead to inter- minable litigation. ^ § 49. The bill should show the precise state of the plead- ' Hall e. Fisher, 1 Barb. Cli. B. 53. 5 Gray d. Mathias, 5 Ves. 286. » Bromley «. Holland, 5 Ves. 617. * Conover v. Mayor etc., 35 Barb. 531 ; Crane v. Bunnell, 10 Paige, 333. ' Conover «. Mayor, etc., 35 Barb. 531. »Id. ' Crane d. Bunnell, 10 Paige, 333. * Washington ■». Emery, 4 Jones Eq. 29. " Smith «. American etc., 1 Clarke Ch. 307 ; Lane d. Clark, lb. 309. 3 34 mjimanoNS. [chap. n. ings in the suit wliicli is sought to be enjoined, as well as the court in which the suit is pending, to enable the officer grant- ing the injunction to judge of its propriety, and to iix the terms upon which the relief will be allowed, i And if in ad- dition 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 will enjoin the suit.^ § 50. As regards the parties for and against whom the jurisdiction will be exercised, 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, but without his consent and without authority, either legal or equitable, the proceedings may be enjoined.* § 51. "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 itseK in the action pending, and an officer outside of court has no authority to enjoin such proceedings.' § 52. It has been held that where one comes into equity for relief against proceedings at law, and seeks on equitable grounds to enjoin such proceedings, the relief will be granted only on condition of his, first confessing judgment at law.' ' Carroll v. Farmers etc., Harrihg. Mich. 197. ' Mclntyre v. Mancius, 3 Jolins. Cli. 45. ' Ohamblin v. Sliohter, 12 Minn. 276. * New York v. Connecticut, 4 Ball. 1. ' Bailey v. Devereux, 1 Vern. 269 ; Frowd «. Lawrence, 1 Jac. & W. 655 ; Ex pa/rte Clarke, IRuss. & M. 563. * Ex pwrte Merrit, 5 Paige, 125. ' Dyckman ». Kernochan, 2 Paige, 26 ; Ellswortli v. Cook, 8 Paige, 64S. » Warwick v. Norvell, 1 Leigh, 96 ; Mathews v. Douglass, Cooke, Tenn. 136 ; Conway «. Ellison, 14 Ark., 360 ; Nelson e. Owen, 3 Ired. Eq. 175. CUAP. n.J ACTIONS AT LAW. 35 The principle upon ■wliich the rule is basedj is said to be that whenever a person resorts to equity for substantive relief against a claim asserted at law, he must submit himself entirely and without reserve to the jurisdiction of the chancellor. ^ The 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 pro- ceeding in equity to enjoin the suit at law.^ But, where com- plainant in his bill expressly offers to withdraw his defense at law and siibmit to judgment, for the reason that his relief is alone in equity, he is entitled to an injunction. ^ § 53. Equity will interfere to restrain proceedings 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 mul- tiplicity of suits.* But a bill of peace will only be entertained in two classes of cases: first, where complainant has already suflSciently established his right at law; ^ and, second, where the persons controverting the right are so nimierous as to ren- der the injunction necessary for the prevention of a multi- plicity 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 com- plainant, 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 ' Warwick «. Norvell, 1 Lelgli, 96. » Warwick v. Norvell, 1 Rob. Va. 308. • Hodges, ea pa/rte, 24 Ark. 197. * Dedman e. Chiles, 3 Monr. 426 ; Woods v. Monroe, 17 Mich. 238. » Bldridge v. Hill, 2 Jjohns. Ch. 281; West v. Mayor etc., 10 Paige, B39; Dedman v. Chiles, 3 Monr. 436 ; Lapeer etc. b. Hart, Harring. Mich. 157 ; Paterson etc. d. Jersey City, 1 Stockt. 434. » 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 ; Leighton v. Leighton, 1 P. Wms. 671; Trustees etc. «. Nicoll, 3 Johns. 566 ; Tenham v. Herbert, 2 Atk. 483. ' Eldridge v. Hill, 2 Johns. Ch. 281. 8 Dedman v. Chiles, 3 Monr. 426. 36 iNjuNcrnoNS. [chap. n. immaterial what number of trials have taken place, whether two only, or more. 1 Where there is one general right, com- mon to a number of persons, one person claiming or defend- ing the right against many, or many against one, equity will interfere and determine the right in order to prevent vexatious litigation and multiplicity of suits. ^ Thus, where one is in possession of land, vnth ' complete legal title, though not all appearing of record, he may enjoin a mimber 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. ^ § 64. 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 refused.* And an injunction is properly dissolved which staid proceed- ings in sixty-seven suits on county orders brought in one day against the county commissioners, since the defense was at law and should be made there. ^ Nor will a bill of peace be enter- tained where the right in question is litigated only between two persons, and the decree of a court of equity would affect iio others.^ § 55. The beneficial effects of the jurisdiction of equity in ' Paterson etc. v. Jersey City, 1 Stookt. 434. 2 Tenham v. Herbert, 3 Atk. 483 ; Woods «. Monroe, 17 Mich. 238. » Woods V. Monroe, 17 Micli. 338. " Peters «. Prevost, 1 Paine's C. C. G4. Whether in such case t}ie injunc- tion would he allowed against the remaining suits after several verdicts, (jucsre. ' Lapeer etc. ■». Hart, Harring. Mich. 157. "Eldridge «. Hill, 3 Johns. Ch. 381; Tenham v. Herbert, 3 Atk. 488; C()-(vi)er V. Clerk, 3 P. Wms. 157. CHAP, n.j ACnONS AT LAW. 37 restraint of proceedings at law, are nowhere more apparent than in that class of cases where the equities relied upon can not, under the I'igid rules of law, be entertained as a defense to the action in the legal forum. Thus, the failure or total want of consideration in negotiable paper, though available as a defense to an action between the original parties, is not admis- sible 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 negotia- ble instrument or note, without consideration, is valid upon its face, the jurisdiction of equity is well established to interfere and restrain suit upon such instrument. Thus, whe] e a nego- tiable note, v:alid upon its face, had been given wifhout any consideration, 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 the reason already noticed, that the illegality of the instrument is not apparent on its face, but is dependent upon evidence dehors the instriiment itself whereby the defense might fail through lapse of time.^ And where a note was signed and delivered without consideration, and with the under- standing that it should not be enforced, equity will enjoin a suit thereon by the administrators of the payee, since the note can have no more obligatory effect in their hands than it could have had in the hands of their intestate. ^ § 56. Upon similar principles equity will restrain suits upon instruments, the consideration for which, though good originally, has since entirely failed, and where great hardship would result from the enforcement of payment. Thus, where the consideration for which a draft was given has entirely failed, a suit thereon may be enjoined, regardless of w-hether the eqiiities alleged constitute a good defense at law, since the ' Metler's Adm'rs. r. Metier, 3 C. B. Green, 270, affirmed on appeal, 4 C. E. Green, 457. « Bromley v. Holland, 5 Yes. 617; Hayivard b. Dlmsdale, 17 Ves. 111. » Bell «. Gamble, 9 Humph. 117. 38 iNjTJnciioj. Macon, etc., 38 Geo. 403. ' Johnson «. Andrews, 28 Geo. 17. < Hough i>. Chaffin, 4 Sneed, 238. CHAP. n.J ACTIONS AT LAW. 39 the court does not assume to control or interfere with the courts of tlie foreign country, since any such assumed control would be manifestly inconsistent with the plainest principles oi national sovereignty and equality. It rather proceeds upon the undoubted authority which it possesses over persons within its territorial limits and under its jurisdiction, to restrain them from using the tribunals of a foreign state in such 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 m personam, upon these parties, and prohibit them from proceeding farther with the suit. The proceedings are regarded as purely vn personam, the mandate of the court being directed to the parties and not to the tribunal in which the action is pending, i ' Cranstowu ii. Johnston, 3 Ves. 183 ; 5 Yes. 277 ; Bunbury v. Bunbury, 3 Jur. 648 ; Carron etc. v. Maclaren, 5 H. L. Cases, 416 ; Beckford v. Kemble, 1 Sim. & Stu. 7; Harrison «. Gurney, 2 Jac. & "W. 568; Bowles «. Orr, 1 Y. & C. 464; Portarlington v. Soulby, 3 Myl. & K. 104. In tbe latter case the history of the jurisdiction, as well as the principles upon which it is based, are very clearly laid down by Lord Chancellor Brougham, as fol- lows : " Soon after the Eestoration, and when this, like every other branch of the court's jurisdiction, was, if not in its infancy, at least far from tliat maturity which it attained under the illustrious series of chancellors, tlie Nottinghams and Macclesflelds, 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 Freeman's Reports, and somewhat more fully in Chancery Cases, under the name of Lowe v. Baker, 2 Freem. 125 ; 1 Ch. Cas. 67. In Lowe v. Baker it appears tliat 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 subpcma to be served on him, and that this should be good service on the res^ So far, there seems to have been very little scruple in extending the jurisdiction. Lord Clar- endon refused the injunction to restrain these proceedings at Leghorn, after advising with the other judges. But the report adds: ^Sed qtimre, for all the bar was of another opinion ; ' and it is said that, when the argu- ment against issuing it was used, that this court had no authority to bind a foreign court, the answer was given that the injunction was not directed to the foreign court, but to the party within the jurisdiction here. A very sound answer, as it appears to me ; for the same argument might apply to a court within this country, which no order of this court ever affects to bind, our orders being only pointed at the parties, to restrain them from proceeding. Accordingly, this case of Lowe v. Baker, has not been recog- iO iN.iiManoNS. [cHAi'. n. § 58. lu accordance with tlieae principles the indorsee of a bill of exchange has been restrained 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 courts. ^ So a creditor who had availed iiimself of a decree in England to procure relief against the assets of an estate there, was enjoined from proceeding with a suit against the same estate in Ireland. ^ § 59. The fact that the property which is the subject mat- ter of the controversy is located in a foreign country will not nized or followed in later times. Two instances are mentioned in Mr. Hargrave's collection, of the jurisdiction being recognized; and in the case of Wharton v. May, 5 Ves. 71 ; see, also, Kennedy v. Earl of Cassiblis, 3 Swanst. 318 ; Bushby v. Munday, 5 Madd. E. 297 ; Harrison v. Gurney, 2 J. & "W. 563. In Beauchamp v. Marquis of Huntley, Jac. 546, which under- went so much discussion, part of the decree was to restrain the defendants from entering up any judgment, or carrying on any action in what is called the Court of Great Session in Scotland; meaning, of course, the Court of Session. I have directed a search to be made for precedents, in case the jurisdiction had been exercised in any instances which have not been reported; and one has been found directly in point. It is the case of Campbell «. Houlditch, in 1820, where Lord Eldon ordered an injunction to restrain the defendant from further proceeding in an action which he had commenced before the Court of Session in Scotland. Prom the note, which his Lordship himself wrote upon the petition, requiring a further affidavit, and from his refusing the injunction to the extent prayed, it is clear that he paid particular attention to it. This precedent, therefore, is of very high authority. In truth, nothing can be more unfounded than the doubts of the jurisdiction. That is grounded, like all other jurisdic- tion of the court, not upon any pretension to the exercise of judicial and administrative rights abroad, but on the circumstance of the person of the party, on whom this order is made, being within the power of the court. If the court can command him to bring home goods from abroad, or to assign chattel interests, or to convey real property locally situate abroad ; if, for instance, as in Penn ii. Lord Baltimore, 1 Ves. Sen. 444, it can decree the performance of an agreement touching the boundary of a province in North America; or, as in the case of Tellor v. Carteret, 2 Vern. 449, can foreclose a mortgage in the Isle of Sark, one of the channel islands ; in precisely the like manner it can restrain the party being within the limits of its jurisdiction, from doing anything abroad, whether the thing forbid- den be a conveyance or other act, in pais, or the instituting, or prosecution of an action in a foreign court." ' Portarlington v. Soulby, 3 Myl. & K. 104. " Beauchamp v. Huntley, .Tac. 546. CHAP. U.] ' ACTIONS AT LAW. 41 prevent the court from exercising the jurisdiction where all the parties to the transaction are within its reach and amenable to its process. And if it he made to appear that the matters in controversy can be more expeditiously adjusted and the ends of justice better attained in the jurisdiction where the parties then are, proceedings in the courts of the foreign country will be enjoined. 1 And where parties have proceeded in equity as far as a decree, and pending the settlement of accounts there- ander by a master in chancery proceedings are instituted in respect to the same matter in another Country, an injunction may be allowed. ^ So where all the parties are within the jurisdiction of the court of equity, and it has on a bill to re- deem under a mortgage decreed an inquiry as to the amount due, it may restrain proceedings for the foreclosure of the mortgage in the coiirts of another country on such terms as it thinks proper.* If, however, iipon balancing the convenience and inconvenience likely to result to the different parties, it appears that the questions involved can be more conveniently litigated in the foreign court an injunction will be refused.-^ § 60. While in this country the aid of equity is rarely, if ever, invoked to restrain proceedings in the courts of foreign nations, yet the same principles are held applicable to the case of enjoining citizens of one state from proceedings at law in the courts of a sister state. And while there is a lack of uni- formity, amounting even to a conflict of authority, in the decided cases, the English rule seems to have the support of the clear weight of authority, and the courts of one state will, in a proper case, enjoin persons within their jurisdiction from instituting legal proceedings in other states." As we have "Bunbury v. Bunbury, 1 Beav. 330; Beckford v. Kemble, 1 Sim. & Stu.7. ' Weclderburn i>. "Wedderburn, 3 Beav. 208. 8 Beckford v. Kemble, 1 Sim. & Stu. 7. < Jones 11. Geddes, 1 Ph. 724. s Debon v. Foster, 4 Allen, 545; Bank etc. v. Rutland, 38 Vt. 470; Hays V. Ward, 4 Johns. Ch. 123 ; Vail v. Knapp, 49 Barb. 299. And see, upon the general subject of the powers of equity to control the action of persons within its jurisdiction, with reference to matters beyond its jurisdiction, Mitchell ®. Bunch, 3 Paige, 606; Massie v. Watts, 6 Cranch, 148. But see, c/mtra, Burgess v. Smith, 2 Barb. Ch. R. 276; Williams v. Ayrault, 31 Barb. 42 INJUNCTIONS. [OHAP. H. seen in the preceding section, a distinction is draw-n between a court of equity interfering with the action of the courts of a foreign state, and restraining persons within its own jurisdic- tion from using foreign tribunals as instruments of wrong and oppression. While, therefore, the court will assume no control over the course of the proceedings in the foreign tribunal, it may and wiU interfere to prevent those who are amenable to its own process from instituting suits in other states which will result in injury and fraud.^ 364; Carroll v. Farmers etc., Harring. Mich. 197. Even the courts of New York, which have contended most strenuously against the rule, are by no means inflexible in denying the relief, and the injunction was allowed in Hays V. "Ward, 4 Johns. Oh. 133, and in Vail v. Knapp, 49 Barb. 399, supra. And in Mead «. Merritt, 3 Paige, 403, the jurisdiction of equity is recog- nized to restrain citizens of one state from beginning suits in a sister Btate, though denied as to suits already begun. The strongest reason which can be urged against the exercise of this jurisdiction is that assigned in denying the injunction in Carroll v. Farmers etc., Harring. Mich. 197, that if courts of one state should see fit to enjoin proceedings in another, that other might retaliate in like manner by enjoining proceed- ings in the first, and thus give rise to an endless conflict of jurisdiction. Even this reasoning looses its force when it is remembered that the injunc- tion is not directed to the court of the foreign state, but simply to the parties litigant, the proceeding being purely in peraona/m. ' Dehon v. Foster, 4 Allen, 545 ; Vail v. Knapp, 49 Barb. 399 ; Great Falls etc. ». Worster, SB N. H. 470. In this case Gilchrist, 0. J., says : " It would be a great defect in the administration of the law, if the mere fact that the property was out of the state, could deprive the court of the power to act. As much injustice may be perpetrated in a given case, against the citizens of this state, by going out of the jurisdiction and committing a wrong, as by staying here and doing it, * * as the legislature has conferred upon the court the power to issue injunctions whenever it is necessary to prevent injustice, it is the duty of the court to exercise that power upon the presentation of a proper case, and when it can be done consistently with the acknowledged practice in courts of equity. As the principle which is sought to be applied here, has been recognized for nearly two hundred years, we have no hesitation in holding that the court has jurisdiction." In a leading American case upon this subject the court says : " The authority of this court, as a court of chancery, upon a proper case being made, to restrain persons within its jurisdiction from prosecut- ing suits either in the courts of this state and of other states, or foreign countries, is clear and indisputable. In the exercise of this power, courts of equity proceed, not upon any claim of right to interfere with or control tJie course of proceedings in other tribunals, * * the jurisdiction is founded CHAP, n.j ACTIONS AT LAW. 43 § 61. An exception to the rule as laid down in the preced- ing section, is recognized as between the state and federal coiu'ts in this country, growing out of the peculiar structure of our judicial system. And, in general, the courts of the United States will not interfere by injunction to restrain proceedings in the state courts. ^ It is held, however, that the United States courts may restrain a state officer from such proceedings under a statute of a state as would destroy a franchise granted 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 the state on tlie clear authority vested in courts of equity over persons within the limits of their jurisdiction, and amenable to process, to restrain them from doing acts which will work wrong and injury to others. * * As the decree of the court in such cases is pointed solely at the party, and does not extend to the tribunal where the suit or proceeding is pending, it is wholly imma- terial that the party is prosecuting his action in the courts of a foreign state or country. If the case stated in the bill is such as to render it the duty of the court to restrain a party from instituting and carrying on pro- ceedings in a court in this state, it is, bound in like manner to enjoin him from prosecuting a suit in a foreign court." Per Bigelow, 0. J., Dehon «. Foster, 4 Allen, 545. In Vail v. Knapp, 49 Barb. 399, it is said: "While, as a general rule, the propriety of which is apparent, the courts of this state decline to interfere by injunction, to restrain its citizens from pro- ceeding in an action which has been commenced in the court of a sister state, yet there are exceptions to this rule, and when a case is presented, fairly constituting such exception, extreme delicacy should not deter the court from controlling the conduct of a party within its jurisdiction to prevent oppression or fraud. No rule of comity forbids it. * * * In granting the injunction we deal with parties residing in this state, and do not seek to interfere with or attempt to control the action of the court in Vermont, in which the action is pending. We command our own citizens, not the courts or parties residing in Vermont." ' Diggs v. Wolcott, 4 Cranch, 179. And by act of Congress approved March 3, 1793, it is provided. Chap. XXII. Sec. 5, as follows: * * " Nor shall a writ of injunction be granted to stay proceedings in any court of a state ; nor shall such writ be granted in any case without reasonable pre- vious notice to the adverse party, or his attorney, of the time and place of moving for the same." 1 Stat, at Large, 335. But the United States courts will, in a proper case, grant an injunction in aid of proceedings in bank- ruptcy, to restrain proceedings at law in the state courts against the property of a bankrupt. For the principles governing in such cases, see Chapter TV., post. « Osborn v. United States Bank, 9 Wheat. 738. 44 iNJtiNcnoNS. [chap. n. courts. 1 Upon the same principles of comity which forbid the federal courts interfering with state tribunals, the courts of a state decline to interfere with, or restrain, proceedings in the courts of the United States. ^ Indeed, aside from reasons of comity, the state courts are entirely destitute of authority for such interference.^ III. Suits Peetaininq to Keal Estate. § 62. Ejectment. 63. Action at law will not be enjoined where court of law has jurisdic- tion of the case. 64. Further illustrations of the rule. 65. Forcible entiy and detainer. 66. Failure of consideration ; foreclosure. 67. Further illustrations. 68. Further illustrations. § 62. The aid of equity by injunction is frequently invoked for the purpose of restraining actions at law pertaining to real estate, especially actions of ejectment. As we have already seen, an injunction will be allowed to restrain a number of suits in ejectment against the same persons where the questions involved are identical, upon the groxind of prevent- ing multiplicity of suits.* "Where, however, the object of the ' City Bank i). Skelton, 2 Blatch. 14; S. C. lb. 26. 2 Schuyler d. Pelissier, 3 Ed. Ch. 191 ; Coster «. Griswold, 4 Ed. Ch. 864. 8 Phelan v. Smith, 8 Cal. 520 ; Riggs ii. Johnson Co., 6 Wal. 166. And ia a recent case it is said "that " Orders for an injunction, issued by state courts, are as inoperative upon the process of the Circuit Court (of the U. S.) of that district, as they would be if directed to the process of a circuit court in any other district of the United States, because the state and federal courts, in their sphere of action, are independent of any such control." Per Clifford, .J., United States b. Keokuk, 6 Wal. 514. But see, contra, Akerly v. Vilas, 15 "Wis. 401, where it is held that if complainant lias begun his equitable action in the state court, and afterward begins an action at law upon the same subject matter in the United States court, defendant having a whole or partial defense, but of whiqh he can not avail himself in the action at law, the proceedings in the federal court may be enjoined. " Woods V. Monroe, 17 Mich, 238. CHAP. n.J AcniONS at law. 45 bill is not so much to pi'event vexatious litigation and a niultij)licity of suits, as to procure a consolidation of tlie actions, equity will not interfere, since a court of law is equally competent to administer the relief desired, i But an action of ejectment may be enjoined on the ground that plaintiff is in equity and conscience estopped from making a claim to recover the premises, as where his conduct had been such as to warrant defendant in going on with the erection of works upon the land.^ So ejectment against a corporation will be enjoined where plaintiff in the suit acted for the corporation in purchasing the land, though taking the title in his own name, since, under the principles pertaining to implied trusts, he is regarded in equity as a trustee for the company. ^ Eut where equities are equal the court will not interfere by injunc- tion, as where one has purchased real estate, giving a bond for the ptirchase money, he will not be allowed to restrain an innocent purchaser in good faith and without knowledge of complainants' equities, but the parties will be left to their remedy at law.* § 63. Equity will not retain an injunction restraining an action of ejectment where it isi 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 injunc- tion restraining proceedings in ejectment will be dissolved as to that portion of the property the title to which can be pro- perly determined" in the legal forum.' And it may bo laid down as a general rule that equity will not restrain a person from the assertion of title to real estate, unless the ease be 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 ' Peters v. Prevost, 1 Paine C. C. 64. 2 Trenton etc. v. McKelway, 4 Halst. Ch. 84 8 Id. * McParlane «. Griffith, 4 Wash. C. C. 585. ' Morris etc. v. Jersey City, 1 Boas. 227. ' Camden etc. ■». Stewart, 3 C. E. Green, 489. 4:6 iNjuNcnoNS. [oHAP. n. have concurrent jurisdiction, tlie right to determine the controversy belongs to that tribunal to which resort is first had.i So an action of ejectment will not be restrained if brought by the owner of land after attaining majority, who, while an infant, had contracted for its sale and given a bond for conveyance, and after coming of age refuses to ratify the sale, even though the purchase money has been paid.^ And the 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 a feme covert.^ But where an injunction has been allowed against the prosecution of an action of ejectment upon the ground that the transaction out of which plaintiff derives title was a mortgage, from which defendant in eject- ment seeks to redeem, if the right of redemption is estabUshed the injunction should be made perpetual, and it is error if the court does not so direct.* § 64. 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 sufiicient 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 establish his equitable title thereto, he will not be allowed to enjoin proceedings for the recovery of the possession.'' § 66. An injunction will not be allowed against an action of forcible entry and detainer where it does not appear that a ' Stockton v. Williams, 1 Doug. Mich. 546. ' Brawner v. Franklin, 4 Gill. 463. 3 Fleming i>. Collins, 27 Geo. 494. ^ Harbison «. Houghton, 41 111. 632. ' Sieman «. Austin, 33 Barb. 9. ' Horner v. Jobs, 2 Beas. 19. ' Ex parte Clarke, 1 Russ. and M. 563. CHAP. n.J AcmoNS at law. 47 certain 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, i Nor will the relief be granted in the absence of any allegation of fraud, mistake, accident or surprise. ^ § 6Q. A suit at law iipon a bond for the conveyance of real ^dtate 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 unexecuted one until vendee receives that for which he has contracted.* 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 waiting until suit upon his covenants of warranty to interpose his defense.* § 67. A suit brought by the heirs at law to recover posses- sion 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.* ' Crawford v. Paine, 19 Iowa, 173 ; Lamb v. Drew, 30 Iowa, 16. ' Lamb v. Drew, 20 Iowa, 15. ' Dorsey v. Hobbs, 10 Md. 413. Though this case goes to the full extent of the principle announced in the text, yet it may well be questioned whether the rule is consistent with the established principle of refusing relief in equity where ample redress can be had at law; since the want of considjeration, resulting from want of title, could just as efficiently be urged in defense of the action at law as in a bill in equity. * Hubbard v. Jasinski, 46 111. 160. » Clarke ii. Clarke, 7 E. I. 45. • Foster, ex pwrte, 11 Ark. 304. 48 INJIIKCTIONS. [chap. H. § 68. A bill to establisli a legal title and to restrain pro- ceedings at law, will not be entertained, no equitable circum- stances appearing in the case and nothing that prevents a full defense at laAV, complainant not even alleging that he is unable to defend at law.^ ISTor 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 improvements which would be lost to him in case he were dispossessed of the property.- ■ 3 IV. Special Cases. § 69. Usury. 70. Attaclimont. 71. Awards. 72. Change of venue ; absence of witness ; statute of limitations. 73. Landlord and tenant. 74. Cross demands and set-ofl. 75. Sale of personal property without title. 76. United States revenue laws. 77. Trusts; notes. 78. Granting injunctions an original and not an appellate jurisdiction. 79. Effect of the writ in certain cases. 80. Proceedings against debtors. 81. Equity will enjoin dismissal of suit; lost instrument. 83. Statutory relief a bar to an injunction. 83. Dissolution. § 69. Where relief by injunction is sought against pro- ceedings at law upon usurious contracts, the courts enforce a strict observance of the principle that he who would have equity must do equity. And unless the person aggrieved first pays or oifers to pay the amount lawfully due upon the con- tract, he win not be permitted to enjoin proceedings at law.^ And it is held that the amount due must be actually tendered ' DeGrroot v. Receivers etc., 3 Green Ch. 198. 2 West «. Plannagan, 4 Md. 86. ' Rogers v. Rathbun, 1 Johns. Ch. 367; Tupper v. Powell, lb. 439; Fan- ning V. Dunham, 5 Johns. Ch. 133; Morgan v. Schermerhorn, 1 Paige, 544; Miller v. Ford, Saxt. 358. CEIAP. n.] ACTIOUS AT LAW. 49 or produced in court with lawful interest. * If, however, de- fendant answers without taking advantage of this objection, an injunction already granted will not be dissolved where com- plainant oifers to pay the amount due.^ § 70. An injunction is the proper remedy for the protection of creditors in a foreign attachment, who are entitled to a priority of claim over creditors subsequently attaching.* But a suit in attachment will not be restrained on the ground that the amount claimed is so large that defendant, being a non- resident, can not obtain the necessary security to dissolve the attachment, and that his inability to procure such security will deprive hina of the privilege of introducing a defense of set-off.* § 71. 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 opportunity of replying, the proceedings were enjoined, even though the arbitrators positively disclaimed being influenced by such ex parte evidence.^ But an action upon an award will not be enjoined merely to give one who has gone volun- tarily to trial an opportunity to secui'e the impeachment of witnesses, when he had been apprised beforehand of the nature of their evidence.^ ISTor will the relief be allowed where the person aggrieved has been guilty of laches in apply- ing for the injunction, or where his conduct has been such as to estop him from relief in equity. '' § 72. Proceedings at law may be enjoined and a change ot venue had where the facts relied upon have come to the knowl- edge of complainant too late to apply for a change of venue ' Rogers v. Rathbun, 1 Johns. Oh. 367; Tupper «. Po-Wtell, lb. 439. ' Morgan ■». Schermerhorn, 1 Paige, 544. ' Erskine «. Staley, 12 Leigh. 406 ; Moore v. Holt, 10 Grat. 384. * Dungan v. Miller, 4 C. B. Green, 318. » Cliland «. Hedly, 6 R. I. 163. » Woodworth v. Van Buskerk, 1 Johns. Ch. 483. ' Jones «. Bennett, 1 Bro. P. C. 538; Smith v. Whitmore, 1 H. and M. 576. 4 60 iNjTEsanoNS. [chap. n. at law.i But the relief will not be granted becanse of the refusal of the court to postpone the trial on account of the absence of a material witness, since that is a matter entii-ely 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 bringing suit should not prejudice the rights of the parties, an injunction will be refused. * § 73. As between landlord and tenant it is held that the destruction of the demised premises by fire does not afford suflEicient ground to warrant a court of equity in restraining proceedings at law for the recovery of the rent, the lease containing no provision for a suspension of rent in case of fire.* § 74. While the existence of cross demands is not of itself sufficient to constitute an equitable set-off,^ yet where the cross demands between the parties 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.^ § 75. One who has purchased personal property at a sale undo* execution, which is afterward 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.'' § 76. Courts of equity will rarely interfere with the legal rights of the United States government under the revenue laws, and if injustice is done under their provisions as to > Darmedatt v. "Wolfe, 4 Hen. and M. 346. ' Hamilton v. Dobbs, 4 C. E. Green, 337. ' Bank etc. v. Hill, 10 Humpli. 176. * Leeds «. Cheetliam, l-Sim. 146. ' Rawson «. Samuel, 1 Or. and Pb. 161. ' Claris V. Cort, 1 Cr. and Pb. 154. '' McQbee «. Ellis, 4 Lit. 344; Fawcet v. Pendleton, 5 Lit. 136. CHAP. n.J ACTIONS AT LAW. 61 penalties and forfeitures, relief nmst be had by application to the treasury department, and not by injunction in equity. ^ § 77. Where the relief is sought on the ground that the subject matter of the suit, being a trust, is within the juris- diction of equity, the proceedings at law should not be enjoined, but only execution upon the judgment which may be re- covered.^ 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 hona fide indebtedness. 3 § 78. 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 allowed 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.* § 79. The effect of an injunction staying proceedings at law against the principal, where special bail has been t^ken, is to tie up the hands of plaintiff in the action at law so that no ' Powell -B. Eedfleld, 4 Blatch. 45. ' Justice V. Scott, 4 Ired. Bq. 108. ' Savage v. Ball, 2 C. E. Green, 143. * Merrill «. Lake, 16 Ohio, 373 ; Kent v. Maliafiy, 2 Ohio St. 498. In the latter case, Thurman, J., pronouncing the opinion of the court, saysi " That we can allow an injunction in a case pending in this court upon an appeal, is very clear. An injunction may be the very object of the suit — the final decree sought — and so a provisional injunction, dui'ing the pendency of the suit, may be necessary for the purposes of justice. The power to allow these is a part of the appellate jurisdiction, the grant of which is authorized by the constitution, and has been made by the law. But to allow an injunction in a case pending in another court, would be an exercise of original, and not of appellate jurisdiction. Wow the origi- nal jurisdiction conferred upon this court by the constitution, is limited to qiLO wa/rranto, mandanms, Tidbeas corpus, and procedendo. Art. 4, Sec. 2. * * * it would be wholly inconsistent with, and in a great measure destructive of, the judicial system it ordains, to suppose that this original jurisdiction can be enlarged bylaw. It is true there is no express prohibi- tion against it, but none was necessary." 53 INJUNCTIONS. [chap. n. proceedings can be had against the special bail.i And where the action enjoined was at issue and ready for trial, when the injunction issued out of chancery restraining proceedings, plaintiif in the action at law will not be allowed to proceed to trial and judgment on the ground of saving of time and expense.* § 80. 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 the debt, if not taken from him by superior liens, unless the debtor seeking the injunction can show that there were no superior liens outstanding. ^ Nov will an injunction be granted to restrain proceedings at law to recover damages against one who has ft-audulently 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 proceed- ings against the person and equitable assets of a debtor, under a statute abolishing imprisonment for debt, and providing for the punishment of fraudulent debtors.^ § 81. Equity will, in a proper case, interfere to prevent the dismissal of an action at law. Thus, where defendant in the Injunction suit has, upon good consideration, given complain- ant 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 plaintiff will be enjoined.^ But an injunction against a suit at law, the only equity in favor of which is a written agreement 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.'' ' Webster v. Chew etc., 8 Har. & McHen. 123. ' Hutchinson ■». Hutchinson's Bx'rs., 1 Houst. 613. ' Camp V. Matheson, 29 Geo. 351. •■ Peck «. Woodbridge, 3 Day, 508. » Frost V. Myrick, 1 Barb. 863. ' Monroe v. Mclntyre, 6 Ired. Eq. 65. ' Kent V. De Baun, 1 BSas. 230. OHAP. n.] ACTIONS AT LAW. 53 § 82. The existence of statutory relief for the injury com- plained 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 indemnified. ^ § 83. Upon the dissolution of an injunction to a suit at law, the court, as a court of chancery, has nothing farther 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 injunction, sitting as a court of equity, to immediately enter up judgment in the action, sitting as a court of law. ^ '■ Storrs «. ?ayne, 4 Hen. & M. 506. ' Powers V "Waters, 8 Mo. 299. 64 rajTiNcrrioNS. [chap. in. CHAPTEE III. OF INJUNCTIONS TO EESTEAIN PROCEEDINGS AT LAW AFTER JUDGMENT. I. Gbnebai Fbatdubs of the Rblibi'. II. Cases whekb Defense SHOtrLD hate been made at Law III. Of JnoaMBNTs Obtained thbough Fbatjd. IV. Of Accident, Mistake, Ignobaiice, and Sitrprisb. V. Of iKREGuiiAK, Ebronbous and Void JmKjMENTS. VI. Of Judgments ttpon UsuRiotrs Contracts. , VII. Of Judgments upon Gaming Contbacts. VIII. Of Set-off. IX. Of Judgments as Affecting Title. X. Of the Court in ■which the Judgment was Rendered. XI. Of Injunctions against Awards. XII. Of Judgments by Default and Confession. XIII. SpbciaIi Cases. I. General Featdees of the Relief. § 84. History of tlie jurisdiction. 85. Not a favorite jurisdiction with courts of equity. 86. Judgment must be against conscience before equity will enjoin. 87. After-discovered evidence ground for relief. 88. Defective jurisdiction no ground for injunction. 89. Judgment must be unjust and oppressive. 90. Eflfect of injunction upon judgment lien. 91. Release of errors. 93. Effect of statutes requiring release of errors. 93. Payment of amount due must be tendered. 94. Only judgment creditors can restrain disposition of their debtors' property on execution. 95. Of the bill and parties thereto. 96. Equity will not retry issues ; writ of error no bar to injunction. § 84. The jurisdiction of equity to stay proceedings at law after judgment recovered is of ancient origin, and though now CHAP. m.J JUDGMENTS AJStl) KXECU'llONS. 55 established beyond dispute, it was formerly the cause of I're- quent 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 back 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 EUesmere, 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 long prevailed, and the jurisdiction has never since been questioned. ^ § 85. The jurisdiction, though well established, is not regarded as a favorite one vrith courts of equity. A bill seek- ing relief of this nature is watched with extreme jealousy and the grounds upon which the interference will be allowed are confessedly somewhat narrow 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 aggrieved, and he must show a clear case of diligence to entitle himself to an injunction. ^ The ' 1 Woodes. Lect. 6, p. 186; 3 lb. 56, p. 398; 1 Spence's Eq. Jur. p. 674; 1 Hallam's Const. Hist. 473. ^ Kobuck v. Harkins, 38 Geo. 174; Slack «. Wood, 9 Grat. 40; Bateman ». Willoe, 1 Sch. & Lef. 304. The general principle upon wbicli the relief is founded is well stated by Lord Redesdale in Bateman v. Willoe, as follows: "It is not sufficient to sbew that injustice has been done, but that it has been done under circumstances which authorize the court to inter- fere. Because if a matter has been already investigated in a court of justice, according to the common and ordinary rules of investigation, a court of 56 iNjuHcmoKS. [chap. m. object of tlie injunction is to prevent the person against whom it issues from availing himself of an unfair advantage, result- ing from fraud, accident, mistake, or otherwise, the enforcement of which is against conscience. ' § 86. The general principle underlying 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 himself at law of the equities relied upon to enjoin the judgment, or, if he was in a position to avail himself of such equities in defense of the action at law, that he was prevented 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 will not be enjoined where there is no evidence of a good defense to the merits, or that the judgment is contrary to equity and against conscience, the only ground relied upon being that the cause was brought on to trial in violation of a verbal agreement of counsel for its postponement. ^ And where equity can not take on itself to enter into it again. * * * The inattention of parties, in a court of law, can scarcely te made a subject for the interfer- ence 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 law ; and, therefore, equity does sometimes interfere, as in cases of complicated accounts, where the party has not made defense, because 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 possessed himself improperly of something, 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 discussed there, and over which the court of law had full jurisdiction." > Little «. Price, 1 Md. Ch. 183. « Wingate v. Haywood, 40 N. H. 437 ; Wierioh v. De Zoya, 2 Gilm. 385 ; Wright V. Baton, 7 Wis. 595 ; Ableman «. Roth, 13 Wis. 81 ; Little v. Price, 1 Md. Ch. 183 ; Slack v. Wood, 9 Grat. 40 ; lyiarine etc. v. Hodgson, 7 Cranch, 333; Dugan «. Cureton, 1 Ark. 31; Andrews v. Penter, lb. 186; Watson «. Palmer, 5 Ark. 501 ; Conway v. Ellison, 14 Ark. 860 ; Bently v. Dillard, 6 Ark. 79; Hempstead ».'Watkins, lb. 817; Menifee's Adm'rs. ■!). Ball, 7 Ai'k. 520. " Ableman v. Eoth, 13 Wis. 81. In this case the ground relied upon in support of the injunction to the judgment at law was that it was obtained CHAP, in.] JirDGMENl'S AHD EXEOOTIONS. 67 complainant fails to sliow due diligence in availing himself 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 instance, i 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.^ § 87. T!h.e discovery, after the final decision of a cause, of new evidence tending to establish the same defense relied upon on the trial of the action will not, of itself, authorize an injunc- tion against the judgment. ^ "Where, however, facts material to establish the defense have been discovered since the trial, which the deffendant could not sooner have discovered by the use of ordinary diligence, or where they have been fraudulently concealed, the relief may be allowed.* So if the after-dis- covered evidence shows a mistake or miscalculation on the part of the jury, such as, if discovered in time, would have famished good ground for a new trial, the judgment will be through trickery of plaintiff's attorneys in forcing the case to trial in vio- lation 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 reason 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 funda- mental and governing principle is, that it is against conscience to permit the party enjoined to proceed. In case of a judgment it must he 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 mistake, without negligence on the part of himself or his agents (3 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 advantage 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 otherwise have been rendered." ' Slack V. Wood, 9 Grat. 40. ' Craig ■». Ankenoy, 4 Gill, 225. ' Campbell ®. Briggs, 3 Bob. La. 110; Ware v. Horwood, 14 Ves. 31. * Baltzell «. Randolph, 9 Pla. 366 ; Bateman v. Willoe, 1 Sch. & Lef. 204; Gainsborough v. Gifford, 2 P. Wms. 424. 58 INJUNCTITONS. [OJAP. m, restrained.! And wliere 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. ^ § 88. The purpose for which the interference is allowed being to prevent injustice, a defect in jurisdiction in the court in which the judgment was rendered will not, of itself, authorize an injunction if no equitable reason is shown why the judgment should not be enforced. * Even if the judgment is altogether void for want of jurisdiction, equity will not enjoin, but will leave the parties to their remedy at law by certiorari.^ § 89. A judgment, regular on its face, will not be enjoined when it is not shown to be unjust or oppressive, and when it does not appear that the person asking the aid of equity against the enforcement of the judgment has a good defense to the claim upon which it was founded. ^ The rule has been carried even further and it has been held that it must clearly appear that plain tiif in the action at law had in fact no cause of action. This being shown to the satisfaction of a court of equity, the judgment will be enjoined if there has been no laches on the part of complainant.' But if the judgment, as between the parties thereto, has been fairly obtained, it will not be restrained on the ground of mere hardship to others.'' § 90. As regards the eifect of the injunction upon the lien of the judgment enjoined, it is to be remembered that it operates only in personam upon the judgment creditor and not upon the judgment itself; the lien is therefore not divested or suspended, but only the execution stayed. ^ Eut an injunc- > Rust 11. Ware, 6 Grat. 50. « Billups v. Sears, 5 Grat. 31. « Stokes ®. Knarr, 11 Wis. 389 ; Crandall v. Bacon, 30 Wis. 639. * Crandall d. Bacon, 20 Wis. 639. ' Taggart «. Wood, 30 Iowa, 336. ' Hnebschman «. Baker, 7 Wis. 543. ' Scott «. Whitlow, 30 111. 310. 8 Miller v. Estill, 8 Yerg. 453; Anderson «. Tydings, 8 Md. 427. And see OHAP. m.J JUDGMENTS AKD EXECDTIONS. 69 tion restraining a judgment creditor from all proceedings on his judgment recovered at law, lias tlie eifect of restraining him from proceedings in equity as well.^ § 91. 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 providing that the injunction shall operate as a release of errors at law, the writ will not have this effect if it only restrains the judgment creditor from further proceed- ings under his execution, without enjoining the judgment itself.* And the better doctrine seems to be, that in the absence of any statutory enactment upon the subject the injunction does not necessarily operate as a release of errors in the judgment enjoined.'* In no event can such an injunction have the effect of releasing errors in the proceedings at law except as to the party obtaining the injunction. Thus a garnishee, who enjoins proceedings against himself under the garnishment, does not thereby release errors that may have occurred in the proceedings against the defendants in attachment. ^ § 92. Where it is provided by statute that a party asking an injunction against the enforcement of a judgment shall first release over his signature all errors in entering up the judg- ment, he is estopped from setting up the fact of his own wrong in having obtained an injunction without such release of errors. 8 But a statute providing that the suing out of an injunction against proceedings u:nder a judgment 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.'' Pettingill v. Moss, 3 Minn. 233. But see, contra, as to the effect of the lien, Keith D. Wilson, 3 Met. Ky. 301. ' Little V. Price, 1 Md. Ch. 183. * Price V. Johnson Co., 15 Mo. 433. And in Illinois this is so hy statute ; see MoConnell ■». Ayres, 3 Scam. 310. 8 St. Louis etc. ■». Todd, 40 111. 89. * Gano V. White, 8 Ohio, 30. ' Taylor ■o.Bicards, 9 Ark. 378. ' McFarland v. Eogers, 1 Wis. 453. ' Burge «. Burns, 1 Morris, Iowa, 387. 60 INJUNCTIOKS. [OHAi-. m. § 93. As a general rule lie 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. 1 § 94. A simple contract creditor, whose rights are not yet reduced to judgment, is not entitled to an injunction restrain- ing 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 fruitless 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 who sues by the ordinary process of the courts; and he will not be allowed to enjoin the disposal of the debtor's property on execution, even though the judgments under which the execution issues were fraudulently confessed by the debtor. ^ § 95. "Where an injunction is sought against proceedings at law under a judgment, 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 diiferent interests are involved, it is to that extent considered as an original bill.* To sustain the injunction the biU 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 the parties in whose favor the judgment was ' Baragree «. Oronkhite, 33 Ind. 193 ; Yonge «. Shepperd, 44 Ala. 315. 8 Wiggins 11. Armstrong, 3 Johns. Cli. 144 ; Angell i). Draper, 1 Vern. 899 ; Shirley v. "Watts, 8 Atk. 300 ; Bennet e. Musgrove, 3 Ves. 51 ; Young v. Frier, 1 Stockt. 465 ; Holdrege «. Q-wynne, 8 0. E. Green, 36. 2 Martin «. Michael, 33 Mo. 50. But see, contra, Heyneman «. Dannen. berg, 6 Cal. 376. * Dunn V. Clarke, 8 Pet. 1. « Buntain o. Blackburn, 37 111. 406. CHAP, m.] JTXDGMENTS AKD EXECUTIONS. 61 rendered are joined as defendants and liave filed their answers. * So, as a general rule, no person will be allowed to enjoin a judgment to whicli he is not a party. ^ § 96. An injunction should not be granted to stay a judg- ment, 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. 3 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 proceed- ings at law constitutes no bar to the awarding of an injunction.^ * Marshall v. Beverly, 5 Wheat. 313. ' Jordan's Admr'x. v. 'Williams, 3 Band. 501. 2 Brown v. Street, 6 Rand. 1. * Marine etc. v. Hodgson, 7 Cranch, 333 ; Bateman v. Willoe, 1 Soh. & Lef. 204. * Parker v. Judges, 12 Wheat. 561. Marshall, C. J., giving the opinion of the court, says : " It is contended that an injunction could not be awarded while the record was hefpre this court on a writ of error. We do not think this a valid objection. The suit in . chancery does not draw into question the judgment and proceedings at law, or claim a right to revise them. It sets up an equity independent of the judgment, which admits the validity of that judgment, but suggests reasons why the party who has obtained it ought not to avail himself of it. It proposes to try a question entirely new, which has not been and could not be litigated at law. It may be brought before the commencement of a suit at law, pending such suit, or after its decision by the highest law tribunal." 62 INJUNCTIONS. [chap. m. II. Caeibs whee£e Deeense should have been made at Law. § 97. Judgment will not be enjoined where defense could have heen made at law. 98. Remedy at law bars relief in equity. 99. Negligence of complainant a bar to relief. 100. Further illustrations of the rule ; absence of witnesses. 101. Failure of proof or diificulty in procuring testimony no ground for the injunction. 102. Applications of the general rule. 103. Further applications of the rule. 104. Judgment in tort ; bill must show why defense was not made at law. 105. The general rule applicable to decrees as well as judgments. 106. Recognized exceptions to the general rule. 107. Court will not itself take notice of omission to defend at law. 108. Sickness and coverture grounds for the relief. § 97. A general rule underlying the entire jurisdiction of equity to restrain proceedings at law is, that where the person aggrieved has had an opportunity of interposing his defense at law and has had his day in court, but has failed through carelessness or inadvertence to avail himself of the oppor- tunity 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 suggestion 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, i ' Marine etc. v. Hodgson, 7 Cranch, 333; Emerson o. TJdall, 18 Yt. 477; Pettes V. Bank of Wbitehall, 17 Vt. 485; Clute v. Potter, 37 Barb. 199; "Windwart v. Allen, 13 Md. 196 ; Bateman v. "Willoe, 1 Sch. & Lef 204 ; Com- missioners etc. V. Patrick, Sm. & M. Ch. 110 ; Lafon ®. Desessart, 1 Mart. N. 8. 71 ; Meredith ®. Benning, 1 Hen. & M. 585 ; Turpin v. Thomas, 2 Hen. CHAP. in.J ' JUDGMENTS AOTD EXECC'nONS. 63 § 98. So in all cases where tlie courts of law aiford ample and sufficient remedy for such grievances as may arise in the enforcement of judgments, equity will not interpose. Thus, an & M. 139; Stauard v. Rogers, 4 Hen. & M. 438; Benton v. Roberts, 3 Rob. La. 224; Ponder ■o.Cox, 26 Geo. 485: Beaird v. Foreman, Breese, 308; Abrams v. Camp, 3 Scam. 290 ; Lucas v. Spencer, 27 lU. 15 ; Albro v. Dayton, 28 111. 825; Shricker v. Field, 9 Iowa, 366; Wllsey ®. Maynard, 31 Iowa, 107. And in Marine etc. v. Hodgson, 7 Cranch, 332, tbe law upon this subject is well laid down by Chief Justice Marshall, as follows: ""With- out attempting to draw any precise line to which courts of equity will advance, 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 pre- vented by fraud or accident unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery. On the other hand, it may with equal safety, be laid down as a general rule that a defense can not be set up in equity which has been fully and fairly tried at law, although it may be the opinion of that court that the defense ought to have been sustained at law. In the case under consider- ation the plaintiffs ask the aid of this court to relieve them from a judgment, on account of a defense which, if good anywhere, 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 defended, but has omitted to defend himself 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 himself. The court is of opinion that this is not such a case." Emerson -d. Udall, 18 Vt. 477, was a bill in chancery to restrain the enforcement 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 notice of the time and place of hearing before the arbitrators. The decision of the chancellor dismissing the bill was affirmed, Redfield, J., saying : " It is now, I apprehend, 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 was 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 present- ing 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 64 mjinsranoNS. [chap. m. injunction will not be allowed against a judgment on the ground that the officer has made an improper levy and has taken prop- erty other than that of the judgment debtor, since the remedy at law against the officer is ample, i ITor will equity interfere for the purpose of staying or preventing a sale under ah execu- tion on the ground that the judgment has been partially or wholly paid, but will leave the parties to their remedy at law.^ So an injunction will not be allowed on the ground of neglect of a party to the action, or of his counsel, where such neglect, if excusable, might, under a statute, be made the foundation of a motion for relief in the original action. ^ § 99. In illustration of the general rule laid down in the preceding section, that equity will not afford relief where an he has had a full trial at law upon the Tcry 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 proceedings of the courts of common law, which would he a veiy invidious, as well as a very unwarrantable assumption. Equity has sometimes interfered to grant relief, when a party, by accident or mistake, 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 exclusively 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." ' Chappell «. Cox, 18 Md. 513. But see, contra, Ames v. Myers, 16 How. 493, which was a case of a bill filed on the equity side of the Circuit Court of the United States for an injunction to prevent the sale of slaves which had been taken in execution as the property of another person. The evi- dence showing that the slaves were the property of complainant and not of the defendant in execution, the Circuit Court was directed to make the injunction perpetual, although it was admitted by the Supreme Court to be in direct conflict with the current of authority, and no suflicient reason appears for the decision. The Supreme Court say: " It is proper to notice that this case is not one of equitable cognizance. The plaintiflF had a clear and adequate remedy at law under the Code of Practice of Louisi- ana. C. P. 298, § 7. It is not usual for this court to take an exception of this nature on its own motion and where no objection has been made by the defendant. But this ease is one so clearly beyond the limits of the equitable jurisdiction of the Circuit Court that the fact is noticed that it may not serve as a precedent." Campbell, J. ^ Lansing ». Eddy, 1 Johns. Ch. 49 ; Foster ». Wood, 6 Johns. Ch. 87. And see Parker v. Jones, 5 Jones Eq. 276. » Borland v. Thornton, 13 Cal. 440. OHAP. m.J JUDGMENTS AJSTD EXECUTIONS. 65 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 plaintiff, but is merely the result of negligence in making proper defense at law, relief against the judgment will be refused. ^ And the fkct that the enforcement of a judgment would be against conscience will not, of itself, warrant an injunction; however tmjust and unconscionable the demand may be on which judgment was obtained, if through neglect or carelessness no defense was interposed at law, relief will not bo granted in equity.^ § 100. Where it plainly appears that the equities on which complainant 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 injunction 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 ^insupportable, 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 enjoining the judgment, since the court of law had ample powers to give relief by a continuance, or a new trial, and even though it refused sp to do, equity will not revise and correct the errors of courts of law. ^ IS'or will the fact that defendant in the ori- ginal action was unable to establish his defense, ovidng to the unexpected absence of the plaintiff, whom he had not called as • Tapp V. Rankin, 9 Leigh, 478. " Ponder v. Cox, 26 Geo. 485. « Harden «. Garden, 7 Leigli, 157; Mershon v. Bank etc., 6 J. J. Marsh. 438. But in Spotswood v. Higgenbotliam, 6 Munf. 313, the relief was granted against a judgment upon a hail hond upon the ground that the defendant had not executed the bond, and that, therefore, he had regularly no day in court, and was not hound to take any steps in the action at law. The case is clearly against the weight of authority, since the plea of mm, est factum would have heen a sufficient defense to the action. * Moore o. Dial, 3 Stew. 155. ' Chapman v. Scott, 1 Cranch C. C. 802. 5 66 iNJTiNcnoNs. [chap. ra. a witness, warrant a court of equity in enjoining against the judgment in the absence of fraud, i § 101. Faihire of proof upon the trial at law will not, in the absence of fraud, accident, mistake, or other adventitious circumstances, warrant a court of equity in granting relief against the judgment. 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 circum- stances 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 interposition of equity.* § 102. 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.° JSTor will the injunction be granted on the ground that the defendant at law had a good and sufficient defense to the action, but was kept away from attendance at court by threats of bodily harm, it not appearing that he made any effijrts 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.'' § 103. Allegations in the bill of iisury in the contract upon ' Wilder «. Lee, 64 N. C. 50. " Norris «. Hume, 2 Leigh, 334. « Fentress «. Kobins, N. C. Term E. 177. * Wilson 11. Bastable, 1 Cranch C. 0. 394. ' Wilsey v. Maynard, 31 Iowa, 107. ' Duncan v. Gibson, 45 Mo. 353. ' Stanard v. Rogers, 4 Hen. &. M. 488. CHAP, in.j JTXDGMEN'l'S AND EXECUTIONS. 67 whieL. judgment was obtained, will not avail in procuring an injunction, since the usury would have been a good and suffi- cient defense to the original action before judgment obtained, i ISTor 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 limitations, he is estopped from relief in equity. ^ 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.^ 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 receive the aid of equity in restrain- ing the judgment.* Nor in the application of the rule does it matter whether the judgment which is sought to be enjoined was obtained by default or upon a verdict.^ 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.* IS'or will the relief be granted because the verdict was found upon the testimony of one witness who had been suborned to swear falsely, nor because the court of final resort had refused a new trial.'' § 104. Equity wiU not interfere to restrain a judgment at law in an action for a tort 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 interfer- ence be denied when a new trial has been refused at law.* And ' Lansing v. Eddy, 1 Johns. Ch. 49. ' Clark v. Bond, Wright, 383. « Commissioners etc. v. Patrick, Sm. & M. Ch. 110. * Windwart v. Allen, 13 Md. 196. » Turpin «. Thomas, 2 Hen. &. M. 139. ' Smith B. Lowry, 1 Johns. Ch. 330. 'Id. ' Meredith v. Benning, 1 Hen. & M. 585. And see, as to the relief where a new trial had been denied at law. Smith v. Lowry, 1 Johns. Ch. 330, supra. 68 mjTOTcrnoNS. [chap. m. where a bill is filed for an injunction in a case where complete relief might have been had by defending at law, the bill must clearly show why the defense was not asserted in the legal fonim.i § 105. The general rule under consideration as applicable to judgments at law applies equally to decrees in equity. And a final decree in equity wiU not be enjoined on grounds of equity existing prior to its rendition, and which might have been relied upon in the original suit, unless the equities are such as to authorize a bill of review. ^ § 106. 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 equitable jurisprudence. Most of these exceptions will be found to fall under the heads of fraud, accident, 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 convenient 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, attended with doubt, diflBculty, and embarrassment, equity may grant relief against the judgment. 3 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 judg- ment.* And the fact that the rights in issue are equitable rather than legal in their nature, will afford additional reason for enjoining the proceedings.^ §107. "Where the judgment debtor has failed to defend at law, and afterward attempts to enjoin the judgment on gTounds ' Yancy ®. Fenwick, 4 Hen. & M. 433. » Moran ». "Woodyard, 8 B. Mon. 537. ' Crawford ». Thurmond, 8 Leigh, 85 ; Mewborn «. Glass, 5 Humph. 530. And see Spotswood v. Higgenbotham, 6 Munf. 313. * Scott D. Shreeve, 13 Wheat. 605. ' Crawford v. Thurmond, 3 Leigh, 85. OHAP. m.J JUDGMENTS AiTO EXECUTIONS. 69 constituting a defense eitlier at law or in eqnity, the court will not of its own motion take notice of the failure to defend a1 law. And if the defendant in the injunction suit does not, avail himself of such failure, but answers over on the merits, equity will entertain jurisdiction and will enjoin the judg- ment, i If, however, the defense is purely legal, and in its nature unfit for equity jurisdiction, the defendant in the injunction suit may insist tipon the want of jurisdiction at the hearing, even though he may not have demurred, but pleaded to the merits instead. ^ § 108. Sickness of the defendant at law at the time process was served uppn him, is held sufficient to warrant an injunc- tion against the judgment, even though no defense was inter- posed to the action.^ So if defendant in the suit at law was not sv/i jv/ris, as in the ease of a feme covert, the judgment may be restrained.* And a judgment by default against a feme eovert being a nullity, its enforcement against her separate estate will be enjoined.^ 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 a trial. ^ ■ Galbrath d. Martin, 5 Humpli. 50. « Rice V. Rail Road Bank, 7 Humpli. 39. 8 Id. * Griffitli «. Clarke, 18 Md. 457. »Id. ' Rice v. Rail Road Bank, supra. 70 INJUNCTIONS. [chap. DI. III. Of JxTDGMENTa OBTABSfflD THROTJGH FeADD, § 109. Fraud in obtaining the judgment a ground of injunction. 110. Illustrations of the rule. 111. Fraudulent alteration of records. 113. Fraudulent representations on the part of plaintiff at la-w. 113. Cases where fraud could not be urged in defense at law. 114. Party aggrieved must be diligent in asserting his rights. 115. Construction of fraud ; equity only controls the parties. 116. Violation of agreement ground for enjoining judgment. 117. Forged assignment of bond. 118. Special cases. § 109. The most frequent exceptions to the rule that an injunction Avill 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 fraudu- lent conduct or such deceitful representations as prevented the defendant from asserting his rights in the legal tribunal. Indeed, the exceptions thus recognized are suificient to con- stitute a rule of themselves, and it may be said, generally, that where through fraud upon the part of plaintiff or his rep- resentatives, defendant is prevented from making his defense at law, equity will relieve against the judgment, i The rule, however, as 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.^ This being shown, and it appearing that defendant was prevented from the assertion of ' Carrington ». Holabird, 17 Conn. 530; Pearce i). Olney, 20 Conn. 544; Wierich v. DeZoya, 3 Gilm. 885; Burpee «. Smith, "Walk. Mich. 337; Kent«. Eicards, 3 Md. Ch. 393; Greene v. Haskell, 5 R. I. 447. And in Pearce «. Olney, 30 Conn. 544, the court say: "Indeed tliis falls directly within and is but an illustration of the general rule tliat equity will inter- fere to restrain the use of an advantage gained in a court of ordinary iurisdiction, which must necessarily make that court an instrument of injustice, in all cases where such advantage has been gained by fraud, accident, or mistake of the opposite party." ' Lacy «. Administrators etc., 1 Ohio, 356. CHAP, m.] JUDGMENTS AND EXECUTIONS. 71 his rights by fraud, unmixed with negligence of his own, a court of equity will affoid relief, either by opening the case and allowing another trial, or by awarding a perpetual injunction. 1 § 110. Even though a judgment has been entered by con- sent of the parties and as the result of a compromise between them, it may still be enjoined upon grounds of fraud, accident, or mistake. 2 And where defendant had a good and meritori- ous 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 prevented from pleading a discharge in bankruptcy against the action at law, the relief was granted.* Nor is the power of a court of chancery 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.^ § 111. 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 ot 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 1 Wierich v. DeZoya, 2 Gilm. 383. 2 Hahn v. Hart, 13 B. Mon. 426. " Pearce v. Olney, 30 Conn. 544. < Carrington v. Holabird, 17 Conn. 530; Starr v. Heckart, 33 Md. 367. But see, contra, Katz v. Moore, 13 Md. 566, where it is held that a judgment at law will not he enjoined because of the discharge of the judgment debtor under the insolvent laws of a state previous to the rendering of such judgment, even though the cause of action accrued before the discharge was granted, the court holding that while the legal liability of the insol- vent to pay his debts had ceased, the moral obligation remained as strong as before and was sufficient to sustain the judgment. ' Carrington «. Holabird, 17 Conn. 530. « BabcockB. McCamant, 53 111. 314. 72 mjuNcrrioNs. [chap. m. relief sougM goes to tlie judgment itself', equity may properly entertain jurisdiction, i § 112. Where, through the representations and fraudulent conduct of the plaintiff, defendant is lulled into security, so that he does not make diligent defense to the action at law, he is entitled to relief in equity. ^ And where defendant might have successfully pleaded non est factum to an action upon a note, but was prevented from so doing by the represen- tations of plaintiff, an injunction will be granted.^ But an injunction will not lie to restrain a judgment against com- plainant on a note executed by him as surety, the only equity in support of the bill being that fraudulent representa- tions were made by the principal to obtain the signature of the surety, no fraud or misrepresentation being charged upon the payee.* § 113. It not unfrequently happens from the peculiar nature and circumstances 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 io^, the judg- ment maybe enjoined in equity. ^ 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 representations as to his soundness, it appearing that he was unsound.'' And a judgment for the purchase money of personal property may be enjoined on the ground that, 'Id. ' Webster v. Skipwitli, 26 Miss. 841. And see Pearce «. Olney, 20 Conn. 544. 8 Poindexter v. Waddy, 6 Munf. 418. ■" Griflath «. Reynolds, 4 Grat. 46. 6 Collier ». Easton, 2 Mo. 117 (2 Ed.) ; "West «. "Wayne, 3 Mo. 13 (2 Ed.). ' "West B. Wayne, 3 Mo. 13 (2 Ed.). ' Waters ■». Mattingly, 1 Bibb, 244. From the case as reported it does not appear tliat any defense was attempted in tlie suit on the note, but that it was first interposed in the bill for the injunction. CHAP, m.] JUDGMENTS AOT) EXECUTIONS. 73 contrary to the representations of the vendor, the property was encumbered with liens to an amount beyond its value. i § 114. He who seeks the aid of equity to prevent the enforcement of a judgment 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 transaction 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 neglected to avail himself of it, the judgment will not be restrained.^ But a judgment may be enjoined because of fraud in obtaining a bill of sale on which the action was brought.* § 115. "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 iil the bill the injunction will be refused. ^ And it is to be observed that the jurisdiction of equity in restraining proceedings under a judgment 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 pai-ty to the injunction suit; but an officer having an execution in his hands still in force is a necessary party.'' § 116. Where plaintiff's attorney has taken judgment contrary to his express agreement with defendant, the agree- ment being within the scope of the attorney's authority, the enforcement of the judgment may be enjoined upon the ' Poe «. Decker, 5 Ind. 150. But it does not appear from the report whetlier tlie defendant was apprised of the facts in time to defend at law. « Marsh v. Edgerton, 1 Ohand. 198. ' Parker v. Morton, 5 Blackf. 1. * Crawford v. Crawford, 4 Desaus. Eq. 176. 5 Gilder v. Merwin, 6 Whart. 523 ; Riley v. EUmaker, lb. 545. « Burpee v. Smith, "Walk. Mich. 827. 'Id. 74 INJUNCTIONS. [chap. ID. ground of fraud, i So a judgment obtained in violation of an express agreement and an entry on tlie docket of the court, may be enjoined, even though the judgment creditor does not threaten its enforcement ; since his refusal to release the judg- ment is equivalent to a threat of its enforcement and the injunction is necessary for the protection of the judgment creditor. 2 And where, in direct violation of an agreement between the parties, the judgment creditor has failed to credit his debtor with a payment upon the judgment, and is proceed- ing to collect the whole, an injunction will be granted.^ § 117. 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 iaet; 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.* § 118. 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 judg- ment having been obtained and the levy procured for the purpose of defeating complainant's claim to the property. ^ And where a judgment has been obtained by default upon a prior judgment, of which the judgment creditor has given a ' Kent V. Ricards, 3 Md. Oli. 392. ' Chambers v. Robbing, 38 Conn. 553. » Newman v. Meek, Sm. & M. Ch. 881. * Griffith V. Reynolds, 4 Grat. 46. " Nunn B. Matlock, 17 Ai-k. 513. ° Greene v. Haskell, 5 R. I. 447. CHAP. m.J JUDGMENTS AMD EXECUTIONS. 75 discharge which would have been effectual if pleaded at law, its execution may be restrained, i IV. Oe Accident, Mistake, Ignoeance aud Suepeise. § 119. Foundation of the jurisdiction ; loss of instruments. 120. Distinction between mistakes of law and of fact. 131. Mistakes of fact. 123. Mistakes of fact. 123. Entire judgment will not be enjoined where only part is erroneous. 124. Distinction between ignorance of law and of fact. 125. Ignorance of fact a ground of injunction. 126. Want of notice on the part of defendant at law. 127. Promissory notes. 128. Surprise a ground for relief § 119. 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 jurisdic- tion over these general subjects, and is governed by the same general principles. The relief is extended, primarily, for the prevention of irreparable mischief which the 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 authorize an injunction against the judg- ment,^ And the loss of a written instrument which would have operated as a defeasance of a bond, has been deemed suffi- cient to warrant an injunction against the judgment, even where the defense was not relied upon at law.^ So equity ' Devoll «. Scales, 49 Maine, 320. The case is imperfectly reported, and it does not appear whether defendant had any opportunity of pleading the discharge at law, except in the statement of the court that the judgment was obtained without right, and without the knowledge of the defendant. » Vathir v. Zane, 6 Grat. 246. « Wilson V. Davis, 1 Marshall, 219. 76 mjiiNcmoNS. [chap. m. wjU restrain a judgment on the ground tliat the debt on which the action was brought had been paid, defendant having been prevented from pleading such payment at law by accident, and without laches on his part.i § 120. "With regard to tlie relief against judgments obtained through mistake, a distinction is drawn between cases where the mistake is one of fact and where it is of law. And while in the former case the relief is freely exercised upon sufficient cause shown, equity will not interfere where the mistake is one of law. 2 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. ^ Not 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. ^ Nor will the fact that the mistake was caused by the suggestion and advice of the court constitute sufficient ground for an injimction." § 121. Though a mistake of law does not constitute suffi- cient ground to restrain a judgment, as we have seen in the preceding section, 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 interposition of equity.'' If, however, the judgment has been rendered on an account stated between the parties, the ' Humplireys v. Leggett, 9 How. 397. ' Hubbard ». Martin, 8 Yerg. 498 ; Kiclamond «. SMppen, 3 P. & H. Va. 337; Eisher v. Koush, 3 Mo. 77 (3 Ed.); Meem v. Rucker, 10 Grat. 506; Slirioker i). Field, 9 Iowa, 366. 3 Hubbard i). Martin, 8 Yerg. 498. * Riclimond etc. v. Shippen, 3 P. & H. Va. 837. «Id. « Risher ». Rousli, 3 Mo. 77 (3 Ed.). ' Chase V. Manliardt, 1 Bland, 333. CELir. m.J JUDGMENTS MO) ETEOUTIONS. 77 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, i Where the appearance of a defendant was entered by mistake, and without service of process upon him, 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 the judgment was obtained. 2 But the fact that process was served upon the wi'ong person, who makes no defense at law, but allows judg- ment to be taken against him by default, and, execution having issued, gives a forthcoming bond, will not warrant an injunction. 3 § 122. 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 dis- solved, another may be granted and made perpetual upon new matter of which complainant was ignorant at the time of the dissolution of the first, the new equity consisting 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.' § 123. "Where the mistake consists either in awarding judg- ment or in issuing execution for an amount greater than that which is actually due, the injunction should be allowed only ' Falls v. Krebs, 5 Md. 365. s Campbell v. Edwards, 1 Mo. S31 (2 Ed.). ' Chisholm v. Anthony, 3 Hen. & M. 13. * Saunders v. Jennings, 3 J. J. Marsb. 513. » Armstrong v. Hickman, 6 Munf. 387. « Rust V. Ware, 6 Grat. 50. 78 INJUNCTIONS. [chap. m. as to the excess over and above that justly due. Thus, 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 judgment will merely be enjoined as to the excess and allowed to operate as to the remainder, i Or where an error has been committed in issuing a writ of fi.fa. for an amount greater than that to which the judgment creditor is entitled, the injunction Avill be limited to the amount erroneously included, and the whole judgment will not be enjoined. ^ § 124. The distinction already observed between mistakes of law and of fact in the exercise of the jurisdiction of equity m 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 jurisdiction.* 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.* § 125. It may be laid down as a general rule that ignorance of important facts material to the establishing of a defense to the action at law, will, in the absence of laches on the part of defendant, warrant a court of equity in extending relief by injunction against the judgment. ^ Thus, where defendant, before and at the time of recovering judgment against him, 1 Chase u. Manhardt, 1 Bland, 333. ' Barrow v. Robiohaux, 14 La. An. 307. 2 Meem v. Rucker, 10 Qrat. 506 ; Shrioker v. Field, 9 Iowa, 366. ■* Meem v. Rucker, 10 Grat. 506. And it is held that in such case, a mere averment of the facts relied upon to entitle complainant to relief against the judgment, will not suffice, but the matter alleged in excuse for not having defended at law, must be proven. Id. Upon this point the case certainly lacks the weight of authority, and it is believed that no other decision has gone to this extent. 'Hubbard «. Hobson, Breese, 147 ; Iglehart ». Lee, 4 Md. Ch. 514; Cape Sable Company's Case, 8 Bland, 606. And see Williams c. Lee, 3 Atk. 238 ; LeGuen v. Gouverneur, 1 Johns. Gas. 436 ; Barker «. Elkins, 1 Johns. Ch. 465 ; Duncan v. Lyon, 3 Johns. Ch. 351. CHAP, m.] JUDGMENTS AND EXECDTIONS. 79 was ignorant of facts wliicli would have constituted a valid defense at law, an injunction may be allowed to restrain tlie judgment.i So where by collusion upon the part of the presi- dent of a corporation, judgment was entered against the corpo- ration, its stockholders who were ignorant of the proceedings, and had no opportunity of resisting the judgment, are entitled to an injunction.^ § 126. Where judgment has been rendered against defend- ant without notice and without appearance or defense on his part, the sheriff having made a false return of service, equity will relieve against the judgment on the ground that the circumstances rendering it void are extrinsic to the judgment, and a court of law is, therefore, powerless to arrest its execution.* 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 xxse of ordinary diligence.^ § 127. Proceedings under a judgment in favor of the assignee of a note for valuable consideration, wiU 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 restraining the payee of the note from its collection.® But the rule is otherwise where the assignee has taken the note with notice.'' § 128. Surprise will authorize a court of equity to interfere ' Igleliart s. Lee, 4 Md. Ch. 514 ; Hubbard v. Hobson, Breese, 147. See also Holt's Ex'rs. v. Graham, 3 Bibb, 193 ; Cunnmgham v. Caldwell, Hardin, 131. ' Cape Sable Company's Case, 3 Bland, 606. ' Kidgeway v. Bank etc., 11 Humph. 533. *Id. ' Leggett v. Morris, 6 Sm. & M. 733. ' Donelson v. Young, Meigs, 155. ^ King 0. Baker, 1 Yerg. 450. 80 iNJUNcrnoNS. [chap. m. in certain cases and restrain proceedings under a judgment. Thus, where defendant 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.^ IsTor 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. 3 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, he may afterward come into equity for relief.* V. Of Ieeequlae, Ekrooteous Mm Void Judgments. § 129. Mere irregularities in the proceedings afford no ground for an injunction. 130. Errors at law no ground for injunction. 131. Void judgments will not be enjoined. § 129. It is a well established rule that the interference of equity will not be granted for the purpose of correcting mere irregularities or informalities 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 be allowed. ^ Thus, in the absence of allegations of fraud, irregularities 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 - Mosby n. Haskins, 4 Hen. & M. 437. ' Peters ■». League, 13 Md. 58. 'Id. '■ White V. "Washington, 5 Grat. 645. * Gardner D. Jenkins, 14 Md. 58; Boyd «. Chesapeake etc., 17 Md. 195; Stites V. Knapp, 2 Ga. Decis. 36. CHAP. m.J JUDGMENTS AUD EXECUTIONS. 81 irregularities in proceedings at law.^ Especially will the relief be refused in such case where the bill admits an indebt- edness without offering to pay it.^ So equity will not restrain an execution for such irregularities as entering up the judg- ment in the firm name instead of the individual names of the persons composing a partnership, the remedy at law being considered ample by a motion to set aside the judgment. ^ § 130. In accordance with the general principle noticed in the preceding section, that 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 will be left to be reversed in a court of error.* An additional reason for refusing the relief upon the ground oi 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.'' Especially where complain- ant admits the debt to be due will the interposition of equity be refused, though it be alleged that the judgment is erroneous and contrary to law.* Even where the error relied upon may have been sufficient to warrant a new trial at law, equity will not interfere.'' Nor is the fact that a court of law has erred in overruling evidence which should have been admitted, sufficient to warrant equity in departing from the rule here laid down.^ And where a judgment has been ' (^ardner v. Jenkins, 14 Md. 58 ; Boyd v. Chesapeake etc., 17 Md. 195 ; Stites V. Kaapp, 3 Ga. Decis. 36. ' Gardner v. Jenkins, 14 Md. 58. ' Mclndoe v. Hazelton, 19 Wis. 667. But in Hampson v. Weare, 4 Iowa, 13, an injunction against an execution was upheld on the ground that the execution was improperly and irregularly issued. •* Stockton V. Briggs, 5 Jones Bq. 309 ; Reynolds v. Horine, 13 B. Mon. 284; Dunn v. Fish, 8 Blackf. 407; Cassel v. Scott, 17 Ind. 514. ' Stockton «. Briggs, 5 Jones Bq. 309. 6 Reeves v. Cooper, 1 Beas. 223, affirmed on appeal to the Court of Errors and Appeals, lb. 498. ' Reynolds ®. Horine, 13 B. Mon. 234. 8 Dunn v. Fish, 8 Blackf. 407; Vaughn v. Johnson, 1 Stockt. 173. In the latter case the court say: "An interference on such ground would convert the court of chancery into a court of errors, and would be an assumption 6 82 iNjiTNcrnoNS. [chai'. m. aiSrmed 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. ^ § 131. With reference to the jurisdiction by way of injunc- tion against judgments which are void, while there is some conflict of authority among the decided cases, the rule may be regarded as established that equity will not interfere, but will leave the parties aggrieved to seek their remedy at law.^ Thus, where a judgment and an execution thereunder were absolutely void, relief has been denied in equity on the ground that there was adequate remedy at law by applying to the court in which the judgment was rendered. ^ So where a judgment is void for want of jurisdiction in the coui't in which the proceedings were had, equity will refuse to enjoin and will leave the parties to the common law remedy by writ of certiorari A VI. Of JtTDGMENTS UPON UsDEIOUS CoNTEACIS. § 133. Equity will not usually enjoin judgments on account of usury. 133. Exception to the rule. § 132. Though courts of equity and of law both have jurisdic- tion in matters of usury, yet where a cause has been submitted to the legal forum and there decided, equity will not after- of jurisdiction wMch does not belong to the court. If the defense is equally available at law as in equity and the party has had an opportunity of making the defense at law, a court of equity has no jurisdiction to relieve against the judgment, unless some special ground for the relief can be established, other than that of error in law committed by the court which had jurisdiction of the case." ' Nicholson «. Patterson, 6 Humph. 394. ' Sanchez v. Carriaga, 31 Cal. 170; Crandall v. Bacon, 20 Wis. 639. But see, contra, Caruthers «. Hartsfield, 8 Terg. 366, where it is held that avoid judgment will be perpetually enjoined, even though a remedy may exist at law. ' Sanchez v. Carriaga, 81 Cal. 170. * Crandall v. Bacon, 20 "Wis. 639. And see, as to defect m jurisdiction, Stokes V. Knaxr, 11 Wis. 889. OHiU'. m.J JDDUMK^"JS AKD execdhons. 83 wards relieve against the judgment in the absence of any special circumstances of fraud, or complicated and embar- rasssing facts with which the usury is connected. ^ And the fact that defendant 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, wiU estop him from relief in equity, no fraud or misconduct being shown on the part of plaintiff at law.^ § 133. Notwithstanding the rule as above stated is weU established, and equity wiU rarely interfere upon the ground of usury where 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 resort to equity. And where the remedy at law is attended with embarrassment and difficulty, the transaction involving a large number of contracts, and being exceedingly complex in its nature in consequence of the devices resorted to for the purpose of con- cealing the usury, a court of equity may properly interfere.* VII. Off Judgments upon Gaming Conteacis. § 184. Courts inclined to enjoin judgments on gaming contracts. 135. Defense should usually be made at law. § 134. "Where the consideration for the contract on which the action at law is founded was money lost at gaming, and judgment i, Allen V. Medill, 14 Ohio, 445; Davis «. Tileston, 6 How. 114; Dicken- son «. MoDermott, 13 Tex. 248. 2 Dickenson d. McDermott, 13 Tex. 248. ' Davis V. Tileston, 6 How. 114. * Ten-ill «. Southall, 3 Bibb, 458. But see, contra, Hudson o. Kline, 9 Grat. 379, where it is held that, although defendant is prevented by unavoidable accident, from availing himself of oflf-sets in defense of the action at law, he is still not entitled to enjoin the judgment, but must pursue his remedy at law for the recovery of his claims. » Palfrey «. Shuff, 2 Mart. N. 8. 51. • Hodges V. Planters etc., 7 Gill & J. 806. •■ Rives ®. Eives, 7 Rich. Eq. 353. 88 iNjDMcrnoNS. [chap. m. excess of tlie judgment wMch he lias obtained against him, and refuses to allow his judgment to be set off against such indebtedness, an injunction will be allowed on the ground that the enforcement of payment under such circumstances would be unconscientious and a violation of nioral duty.^ § 142. 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 account between the parties, restrain a judg- ment creditor from profiting by his judgment.^ And a set-off or counter demand acquired after verdict, though greater than the amount of the verdict, will not authorize an injunction against the proceedings, since it would be mani- festly unjust that plaintiff should be delayed or hindered in obtaining the benefit of his verdict by interposing a claim not yet established at law.^ But the rule is otherwise if the set-off relied upon as the foundation for the relief has been reduced to judgment, and in such case an injunction may be allowed.* ' Payne v. Loudon, 1 Bibb, 518. It does not appear from the case as reported, whether the set-oflf was virged as a defense at law. » Rawson «. Samuel, 1 Cr. & Ph. 161. ^Whyte V. O'Brien, 1 Sim. & Stu. 551. "The question," says Eldon, Lord Chancellor, " is whether a bill of this kind can be maintained. At law, where a defendant claims a set-off, the truth of his claim comes to be tried at the same time with the demand raised by the action, and is decided by the same verdict. If, after the verdict, the defendant acquires for the first time a cross demand against the plaintiflF, he can not, for that reason, by any proceeding at law, defeat or delay the plaintiff from the benefit of his verdict. It is not reasonable that a cross demand thus subsequently acquired, should delay the plaintiff from the benefit of his verdict, until the validity of this demand is ascertained by a second trial ; and in this case equity must follow the law. Equitable set-off is where by reason of the nature of the cross demand, there can be no set-off at law. Here the demand is purely legal." * Williams «. Davies, 2 Sim. 461. CHAP. m.J JUDGMENTS AKD EXEOmiONS. 89 IX. Or Judgments as aeeeoitng Title. § 143. Judicial sales not enjoined for irregularity in proceedings. 144. Sale of property on execution against a third person. 145. Exception to the general rule. 146. Distinction between sales of personal and of real property. 147. Equity will interfere to prevent a cloud upon title. 148. But not if title is good upon it^ face. 149. Failure of title a ground of injunction against judgment for pur. chase money. 150. Mere apprehensions of possible failure not sufficient. 151. Fraud and improper conduct of judgment creditor. 153. Writs of restitution and possession. 153. Judgment in another county; ejectment by mortgagee. 154. Prior lien ; growing crops. 155. Surety in replevin bond. 156. Of parties. § 143. The aid of equity is not imfrequently sought for the purpose of enjoining proceedings under judgments at law against the real estate of the judgment debtor. With refer- ence 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 pro- ceedings by which judgment was obtained, but some actual injury or apprehension of injury must be shown. * Nor will equity interpose to prevent the enforcement of judgments rendered against 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. ^ ' Morgan ®. Whiteside's Curator, 14 La. 277 ; Ewing v. St. Louis, 5 Wal. 413. " Ewing 1). St. Louis, 5. Wal. 418. Mr. Justice Field, delivering the opinion of the court, says; "With the proceedings and determinations of inferior boards or tribunals of special jurisdiction, courts of equity will not interfere unless it should become necessary to prevent a multiplicity of writs or irreparable injury, or unless the proceeding sought to be 90 INJUNCTIONS. [chap. m. § 144. Upon the general principle that courts of equity will not entertain jurisdiction where ample remedy exists at law, an injunction will not be allowed against the sale of property levied upon in satisfaction of an execution against a person other than the owner of the property, i A distinction, however, is taken between the case where complainants arc 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 powerless to afford the necessary relief, and equity will entertain jurisdiction to restrain the sale.* § 146. Notwithstanding the general rule as above laid down, it has 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 purchaser of lands can not restrain their sale under a judgment obtained by fraud against his grantor, without showing affirmatively that he will be injured thereby.* § 146. In the application of the rule, a distinction has been taken between sales of personal and of real property under execution, and it has been held that the owner and lessor of personal property may interfere by injunction to restrain its sale under execution against a third person having no interest annulled or corrected is valid vipon its face, and the alleged invalidity con- sists in matters to be established by extrinsic evidence. In other cases, the review and correction of the proceedings must be obtained by the writ of certiorari. This is the general and well established doctrine." See also Mayor etc. v. Moserole, 36 Wend. 133 ; Heywood b. Buffalo, 4 Kern. 534. ' Freeman v. Elmendorf, 3 Halst. Ch. 475, afSrmed on appeal, lb. 655 ; Watkins v. Logan, 3 Monr, 21 ; Bouldin «. Alexander, 7 Monr. 425 ; Cough- ron «. Swift, 18 III. 414 ; Henderson ii. Morrill, 13 Tex. 1 ; Carlin «. Hudson, lb. 203; Hall v. Davis, 5 J. J. Marsh. 290. But see contra, Brummelu. Hui-t, 3 J. J. Marsh. 709 ; Downing «. Mann, 43 Ala. 266 ; Bach v. Good- rich, 9 Rob. La. 391. 2 Orr D. Pickett, 3 J. J. Marsh. 269. ' McCulloch B. Hollingsworth, 37 Ind. 115. ' Marriner v. Smith, 37 Cal. 649. OHAP. m.] JUDGMENTS ASU EXECTTnONS. 91 therein, since complainant, not having the right of possession, might be entirely remediless without the aid of equity. ^ § 147. Courts of equity frequently enjoin proceedings under judgments for the prevention gf a cloud upon title, and this would seem to follow, by analogy, from the well-settled and recognized 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 the title, it is difficult to perceive any substan- tial 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 cast a cloud upon-the title of a iona fide purchaser, may be enjoined. ^ Nor in the application of the rule will it avail against the issuing of an injunction that the levy was only made upon the right, title and interest of the complainimt.* § 148. The exei-cise of the jurisdiction of equity to prevent a cloud upon title, proceeds upon the assumption that the title of the person complaining, being shown as it appears of record, the cloud to be removed or prevented is apparently a good title against that of complainant, though in reality defective by reason of facts dehors the record. An injunction will there- fore not be allowed to restrain a sale under a judgment in foreclosure to j)revent the establishment or assertion of a title which can only be sho'wn to be 'prima faoie good by leaving complainant's title out of consideration.* So if the invalidity which is charged to be a cloud upon the title appears upon the face of the record itself, as in the case of an award for the partition of lands which is invalid upon its face, equity will not interfere to set it aside. ^ As between two judgment cred- ' Foi-cT v. Rigby, 10 Cal. 449. ' Cluistic «. Hale, 40 111. 117 ; Pettit «. Slicpherd, 5 Pftige, 493 ; Key etc. v. Munsell, 19 Iowa, 805 ; Bank etc. «. Schnltz, 3 Ohio, 500 ; Norton ». Beaver, 5 Ohio, 178. But see, contra^ Coughroa ». Swift, 18 111. 414. 3 Key etc. «. Munsell, 19 Iowa, 305. < Jloore «. Cord, 14 Wis. 213 ; Gamble v. Loop, Ih. 405. ' Meloy «. Dougherty, IG Wis. 369. 93 iNJiJNcnoJss. [chap. m. itors, where the prior creditor has received fall payment and satisfaction of his judgment, but still attempts to enforce executions thereunder to the prejudice of the junior creditor, such a cloud is thereby thrown upon the title to the debtor's estate as will authorize an injunction in behalf of the junior judgment creditor. * § 149. Failure or want of title is frequently relied upon as the foundation for an injunction against proceedings under a judgment to enforce the collection of the purchase money of real estate, and a complete failure of title is in some cases regarded as ground for an injunction. And where the vendor has stripped himself of all title to the premises, either legal or equitable, and is in no condition to comply with his contract to convey, neither he nor his assignees standing in his stead will be allowed to recover the purchase money, and a I'udgment therefor will be perpetually enjoined. ^ So where three tracts of land were sold, the title proceeding from three different sources, one of which entirely failed, there being no such tract in existence, and the other tract proved deficient in amount, the judgment for the purchase money was pnjoined to the extent of the deficiency in the land.^ And a distinction is taken between a mere deficiency in quantity and the absolute non-existence of the real estate conveyed; for, while the relief might be denied in the former case, the latter is sufficient to authorize an injunction.* But where the vendor, in addition to his failure to give possession of part of the property at the time stipulated, has utterly failed to make any conveyance of the property, an injunction will issue. ^ § 150. To warrant i the exercise of the jurisdiction in restraint of judgments for purchase money, mere appre- hensions of a possible failure of title will not suffice, especially where complainant is still in possession of the premises.' ' Shaw v. Dwight, 16 Barb. 536. ' Buchanan «. Lorman, 3 Gill. 51. " Strodes v. Patton, 1 Marsh. Dec. 238. *Id. ' Hilleary v. Crow, 1 Har. & J. 543. • Truly V. Wanzer, 5 How. 141. CHAP. III.J JTJDGMENaS AND EXECUTIONS. 93 And hp who comes into equity for relief against a judgment for unpaid purchase money must himself be free from negligence. Thus, where a purchaser has neglected, during the life time of the vendor, to pay the purchase mbney and obtain a conveyance, he will not be allowed to enjoin the judgment because of the difficulty of obtaining title from the infant heirs of the vendor, whom he has not made parties to his bill.i Where a judgment for purchase money is enjoined until the grantor perfects his title and the writ is then dissolved, damages should not be allowed against complainant for having issued such injunction. ^ § 151. Fraud and negligence on the part of the judgment creditor in the enforcement of his lien against the property of his debtor may, under certain circumstances, create an equity sufficient to warrant an injunction against further proceedings under the judgment. Thus, where parties have stipulated in writing that they will not enforce their judgment lien against certain real estate of the judgment debtor, and afterward, in violation of their agreement, attempt its enforcement, they will be restrained by injunction. ^ So where the judgment creditor may collect his judgment from property that his debtor has not conveyed, but refuses or neglects so to do, he wiU be enjoined from proceeding against the grantee of his debtor.* And a subsequent Ixma fide purchaser may enjoin a sale of premises where the lien created by statute in favor of the judgment creditor has expired by lapse of time without sale being had. ^ § 153. In general the enforcement of a legal right wiU not be enjoined in equity, except upon a clear showing of a right superior to that which it is sought to enjoin. Therefore a person in possession of real estate without legal title, has not sufficient equities as against the legal owner to entitle him to an injunction against a writ of restitution which has been ' Prout «. Gibson, 1 Cranch, C. C. 389. ' Fishback e. "Williams, 3 Bibb, 342. « Belly «. Miami etc., 5 Ohio, 338. « Hurd etc. v. Eaton, 28 111. 122. ' Riggin %. Mulligan, 4 Gilm. 50. 94 rNjuNCTiOHS. [chat. m. awarded tlie legal owner for the purpose of obtaining posses- sion of his premises. 1 But a perpetual injunction will be allowed to restrain the execution of a writ of habere facias, possessionem against complainant's real estate when be was not a party to tbe litigation. ^ In general, however, questions of title being properly triable at law, equity will not interfere to restrain a sale of real estate under execution, the title 'to which is in dispute, but will leave the parties to pursue their remedy in a legal forum.* § 153. The existence of a judgment in another county against the same defendant as garnishee, will not warrant an injunction to prevent the judgment creditors from obtaining their money by a sale of mortgaged premises under a decree in foreclosure against the defendant, since he is not entitled to an injunction against the collection of the money under the decree, unless he alleges satisfaction of the judgment in the other county.* Nor will a court of equity before a hearing enjoin a mortgagee who has recovered judgment in ejectment for the mortgaged premises from proceeding with an execution on his judgment. 5 Where, however, a judgment creditor is attempting to enforce his judgment by a sale of real estate conveyed in trust by the judgment debtor before the debt was incurred, an injunction may be granted against the proceedings until the question of whether the trust was created in fraud of creditors is settled.* § 154. One who holds a prior lien on lands can not enjoin a siibsequent judgment creditor from attempting the enforce- ment of his judgment by execution; and this for the reason that a sale under such execution can not defeat or impair the prior lien, but would leave it in the same condition as if such sale had never taken place.'' But purchasers at a foreclosure ' Boinay v. Coats, 17 Mich. 411. ' Goodnougli 0. Sheppard, 28 111. 81. '^ Freeman v. Elmendorf, 3 Halst. Ch. 475, aflBrmed on appeal to the Court of Errors and Appeals, lb. 655. ■* Dunham v. Collier, 1 Greene, Iowa, 54. ' Todd D. Pratt, 1 Har. & J. 465. ' McCann s. Taylor, 10 Md. 418. ' Union etc. d. Poultney, 8 Gill & J. 324. CBAl'. m.] JUDGMENTS AND BXECUTIONS. 95 sale, being entitled to the then growing crops, may restrain the creditors of the mortgagor from proceeding tinder execu- tion to levy upon such crops, the doctrine of emblements having no application to purchasers under a foreclosure, i § 155. A surety in a replevin bond is not entitled to an injunction to prevent the levy of an execution on his own property until that of his principal shall have been levied upon, such a proceeding for the purpose merely of saving the property of the surety by compelling a levy upon that of the principal, being regarded as without the sanction of either principle, practice, or authority.^ § 156. A commissioner in chancery may, in a proper case, be restrained from executing a sale of lands under a decree, he being regarded as a sheriff under the same circumstances.* But the court can not, in an injunction against a decree, inquire into the rights of parties existing antecedent to the rendering of the decree, and which might have been inquired into at that time.* X. Of the Couet in which the Judgment was eendeeed. § 157. Cases of concurrent jurisdiction; of inferior and superior courts". 158. State and United States courts. 159. Rule as between courts of different states. 160. Court may restrain party from enforcing judgment in another state. 161. Equity will not enjoin its own proceedings. § 157. Questions of importance frequently arise touching the relati to 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 concur- rent jurisdiction over the same matters, a party seeking relief may make his election in which tribunal he will bring his ' Crews v. Pendleton. 1 Leigh, 297. ' Kilpatrick t. Tunstall, 5 J. J. Marsh. 80. ' People etc. v. Gilmer, 5 Gilm. 242. ■"Id. 96 iNjuNcrnoNS. [chap. m. action. 1 And, as a general rule, one court will not interfere with or enjoin tlie judgment of another court of concurrent jurisdiction capable of granting the necessary relief.^ 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 surreptitiously obtained, its enforcement may be enjoined by an inferior tribunal whenever the judgment or decree 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 such court where it satisfactorily appears that the decree has been satisfied, and where, notwithstanding such satisfaction, the person in whose favor the decree was obtained is proceeding to enforce it by execution." § 158. The state courts will not trespass upon the clearly established jurisdiction of the United States courts, and will not grant injunctions against judgments rendered in those courts. "Whatever grounds of equitable relief may exist against such judgments should be urged in the United States courts them- selves." Especially will the state courts refhse to interfere where the jurisdiction is expressly conferred by law upon the ffederal courts, as in the case of a judgment for infringement of a patent.' While courts of the United States will not gene- rally interfere with or restrain the proceedings of the state courts, being forbidden by statute from so doing,* yet the statute is held inapplicable to a case where, under process of a ' Conway v. Ellison, 14 Ark. 360. « Platto V. Deuster, 33 Wis. 483; Grant v. Quick, 5 Sandf. 612; Goodale v. Scannell, 8 Cal. 37 ; Eickett «. Johnson, lb. 35 ; Chipman v. Hibbard, lb. 268; Gorham v. Toomey, 9 Cal. 77; Uhlfelder v. Levy, lb. 607. 5 Rosbell V. Maxwell, Hemp. 35. * Bank etc. ii. Hancock, 6 Dana, 284. ' McClellan v. Crook, 4 Md. Ch. 398. "McKim V. Voorhies, 7 Cranch, 279; Kendall v. Winsor, 6 K.I. 453; English V. Miller, 2 Rich. Eq. 330. ' Kendall o. Winsor, 6 R. I. 453. • Act of Congress of 1793, 1 Stat, at Large, 334. CHAP. m.J JUDGMENTS AND EXECT/nONS. 97 state court, a levy has been made upon property belonging to a person other than the defendant in execution, since such unauthorized levy is regarded as in no sense a proceeding of the court from which the process issued. ^ Even where the state has provided by action at law in the state courts a remedy which equity alone could have given before the statute, the courts of the United States will not thereby be deprived of their jurisdiction in such a case.^ As regards the jurisdiction of the federal courts to restrain proceedings under a judgment in those courts, the fact that the process of the court in the injunction suit was served on defendant without the district in which the court is situated, does not oust it of jurisdiction and constitutes no ground for withholding an injunction. ^ § 159. The courts of one state will not relieve against a judgment recovered in another state on the ground of alleged irregularities in the proceedings in the suit in such other state, since such objections should have been urged upon the former trial at law.* But it has been held that an injunction may be granted to stay proceedings under a judgment in an action of debt brought upon the judgment of another state upon a bill charging injustice in the former judgment. ^ So an injunction will lie to restrain proceedings under a judgment of a foreign state which has been reversed, complainant himself having been guilty of no laches. ^ § 160. Where actions at law are brought in two different states against the same defendant for the same cause of action, and a judgment is obtained in one state which defendant satisfies in full, and he is led by the fraudulent representations of plaintiff to believe that the action at law in the other state will not be prosecuted against him, and thereby makes no defense to such action, he is entitled to an injunction in tho former state to restrain plaintiff at law from collecting bis ' Cropper v. Coburn, 3 Curtis, 465. = Id. , ' Logan e. Patrick, 5 Cranch, 388. * Lucas «. Bank etc., 3 Stew. 380. » Wilson ■». Eobertson, 1 Overton, 366. « McJilton v. Love, 13 111. 486. 7 98 nsTJUJsrcrnoNS. [chap. m. judgment in the latter. In sucli case equity acts upon the conscience of the defendant m personam, and not upon the courts of the state in which the action is pending. ^ § 161. It may be stated as a general rule that equity will not enjoin its own proceedings and that a decree of a court of equity will not be restrained. The rule is based upon the ' Engel v. Sclieuerman, 40 Geo. 206. "This bill is not filed," say the court, "Warner, J., "for the purpose of restraining tlie prooeedinys of the, court of New York ; the courts of this state have no jurisdiction to do that; nor would the courts of this state have jurisdiction to enjoin the enforcement of a judgment obtained in the courts of New York, between citizens of that state, resident there. The question here is, whether a court of chan- cery, in this state, has jurisdiction to restrain the personal action of the defendant, so far as to prohibit him from enforcing the collection of the judgment obtained in the courts of New York, according to the facts of this case. There is a clear distinction as to the power and authority of a court of equity, in this state, to restrain by injunction the proceedings of a eowrt in another state, and the power and authority of such court to restrain by injunction the personal action of a citizen of this state. In the one case, a court of equity, in this state, has no jurisdiction; in the other, it has jurisdiction to restrain by injunction the personal action of the defendant himself from enforcing an unconscientious demand in another state, whether that demand is reduced to judgment or not, upon a proper case being made. The record, now before us, in our judgment, makes such a case. The defendant voluntarily came into the courts of this state in the first instance, to have his claim adjudicated, and that claim has been adjudicated therein, paid oflF and discharged. We are not aware that comity between the several states of the Union, requires that the courts of this state shall assume that the courts of the State of New York are any more competent to hear and decide the defendant's claim, and to do him justice, than are the courts of this state, to the jurisdiction of which he. voluntarily submitted the same for adjudication in the first instance. In restraining him, by injunction, from enforcing this unconscientious demand, in the State of New York, the court acts upon his conscience in personam, and not upon tlie courts of that state ; the person of the defendant is within the jurisdiction of the court, the proceedings of the courts in the State of New York are not, and we do not interfere with them. The Supreme Court in New York, in which the judgment was obtained, has no interest in the enforcement of that judgment, the defendant has; and a court of equity, in this state, having jurisdiction of his person, will restrain him from making that interest available, when it would be against con- science and the principles of equity that he should do so. In the language of the Master of the Rolls, in Cranstown v. Johnston, this court will not permit the defendant to avail himself of the law of any other country, to do what woii\'' be gross injustice." CHAP, m.] JUDGMENTS AND nSXECmiONS. 99 obvious reason that by enjoining its own decrees tbe court would thereby declare that to be improper and wrong which it had previously declared to be proper and right. ^ Nor will one court of chancery interfere with or restrain the proceed- ings of another of the same jurisdiction. ^ But judgments at law on notes executed for the purchase money of estates sold under a decree in chancery may be enjoined in the court pf chancery in which the original proceedings were pending.* XI. Of iNJTJNcmoNS against Awaeds. § 162. Judgment on award rarely enjoined. 163. Special cases. 164. Laches will bar relief against judgment on award. § 162. 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, accident, or mistake, the relief will be with- held.* Even where it is alleged that the award was obtained by fraud and corruption, an injunction will not be allowed where 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 arbitra- tors 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 was closed, they received statements from one of the parties, unknown to the other, and containing diiferent items relative to his claim, an injunction may be granted." ' Greenlee v. McDowell, 4 Ired. Eq. 481. ' Deaderick v. Smith, 6 Hmnph. 138. »Id. * Jones 0. Frosh, 6 Tex. 202; Emerson «. TJdall, 18 Vt. 477. ' Snediker v. Pearson, 3 Barb. Ch. R. 107. ' Sisk V. Garey, 37 Md. 401. 100 nsfjuNcnioNS. [chap. m. § 163. Allegations that arbitrators exceeded the scope of their authority and that complainant had not sufficient notice of the time and place of their meeting, will not warrant an injunc- tion against the judgment where 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. 2 So equity will not disturb by injunction an award in favor of a private citizen against a town where it does not appear that any great or irreparable injury is done the town, and where the person in whose favor the award was made would be subjected to great hardship and injustice should the injunction be granted.* § 164. One who seeks relief in equity against an award must show due diligence in making his application and must come into court with clean hands. And where complainant has been guilty of laches in the assertion of his right, or where his own conduct has not been free from blame, he will be refused relief.* XII. Of Judgments by Default ahd Ookfessioii. § 165. Injunction rarely allowed against judgment by default. 166. Rarely allowed against judgment confessed. 167. Judgment confessed on contingent liability; judgment confessed by a municipal corporation. § 165. 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 permitted judgment to go against him by default, such negligence is sufficient to prevent him from ' Emerson v. Udall, 13 Vt. 477. » Meloy V. Douglierty, 16 Wis. 269. ' Hine v. Stepliens, 33 Conn. 497. * Jones V. Bennett, 1 Bro. P. C. 528 ; Smith v. Whitmore, 1 H & M. 576. " Murdock ®. De Vries, 37 Cal. 527 ; Sohier v. Mcrril, 3 "Woodb. & M. 179. CHAP. in.J JTJDGMEiSrrS AMD JIXECD'ITONS. 101 obtaining tlie aid of an injunction against the judgment, i Indeed, in a case of default, a court of equity will refuse to consider tlie merits of tlie 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 deception 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.* § 166. "With regard to judgments by confession, as in the case of judgments by default, a court of equity will not ordinarily 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 thereby estopped from enjoining the proceedings on the ground of an equity existing anterior to his confession of judgment. 5 "Where, however, an injunction was granted against the sale of real estate under an execution, upon a bill charging defendant with having confessed the judgment collusively in order to prevent complainant from realizing his prior judgment out of the real estate, the bill was held good upon demurrer. * § 167. It is held that a judgment upon a warrant of attorney to secure a contingent liability is not void as between the parties thereto and its execution will not be restrained because of a defect in the verification of the pleadings.'' And where the common council of a city, acting in good faith, ' Faulkner v. Campbell, Morris, Iowa, 148 ; Mason «. Richards, 3 Gilm. 25. ' Faulkner v. Campl)ell, Morris, Iowa, 148. ' Murdock v. De Vrics, 37 Cal. 527. * Sohier i>. Merril, 8 Woodb. & M. 179. " Moore v. Barclay, 23 Ala. 739. « Oakley v. Young, 2 Halst. Cb. 458. ' Reiley «. Jobnston, 22 Wis. 279. 103 mjTOScrnoNS. [chap. m. have directed the confession 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 tax payer of the city to restrain the collection of the judgment. Even if equity has jurisdiction to restrain the action of a municipal corporation in such case, a clear and substantial injury to the public interest must be shown before the injunction will be allowed.! XIII. Special Cases. I 168. Failm-e of consideration; when not sufficient. 169. When sufficient. 170. Injunction of judgment pending proceedings in bankruptcy. 171. Where judgment is paid in part. 172. Sureties. 173. When injunction becomes operative. 174. Judgments in ejectment and forcible entry and detainer. 175. New trial. 176. Death of parties. 177. Jiidgments on promissory notes. 178. Mistake or negligence of counsel no ground for restraining judgment. 179. Cases where government is a party. 180. Cases where part of judgment is justly due. 181. Special cases. 183. Two executions on same judgment; execution prematurely issued, 183. Limit of jurisdiction; alternative judgment in replevin. 184. Relief as between different judgment creditors. 185. Mortgage of railroad. 186. Heirlooms. 187. Sale of complainant's property under execution against another may be enjoined. 188. Cases where equities relied upon can not be urged at law. 189. Effect of injunction against judgment. 190. Judgment against sureties, when enjoined. 191. Judgment against administrator, when enjoined. 193. Effect of statute. 193. Effect of statute. ' Chaffee v. Granger, 6 Mich. 51. CHAP. m.J JCDGMKNTS AMD KXECD'HONS. 103 194. Effect of failure to answer. 195. Effect of appeal ; bringing money into court. 196. Refusal of matters within discretion of court of law no ground of injunction ; trifling errors no ground. 197. Defects curable at law. 198. Breach of trust. 199. When creditor may be put to his election. 200. Mechanic's lien, when protected. 201. Eft'ect of injunction to restrain sherifl from paying money realized on levy. 203. Good will of trade. 203. Judgment in slander, when enjoined. 204. Equity will not restrain proceedings upon injunction bond aftei dissolution. 305. Dissolution. 306. Damages on dissolution. 307. Effect of dissolution as to judgment enjoined. § 168. Failure of consideration is sometimes relied upon as a ground for enjoining proceedings under judgments, but the jurisdiction 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 without consideration, the rights of purchasers and creditoi's 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 warrant a court in enjoining a judgment upon the note in favor of a third person to whom it had been transferred. ^ § 169. A court of equity may enjoin a judgment on an assigned note because of failure of consideration, where the facts Kmiting the right of recovery are complicated and inap- propriate for the determination of a jury, even though the defense was not made at law.^ And where, in a suit prose- cuted to a court of last resort, the makers of a promissory note were held not liable on the ground of illegality of con- ■ Stubblefield v. Patterson, 1 Hayw. Tenn. 128. » Gridley ■». Tucker, Freem. Ch. 309. " Reese «. Walton, 4 B. Mon. 507. 104 mjuNcrnoNS. [chap. m. sideration, 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 accom- modation indorser is regarded in the light of a surety, and his principal being discharged the surety should also be discharged.! § 170. It has been held that after a decree in bankruptcy, and pending proceedings for a final discharge, the state courts have jurisdiction to restrain the coercive sale under judgment of the bankrupt's property acquired after the assignment, the judgment having been obtained upon a debt provable in bankruptcy. ^ § 171. Failure to credit part payment on a judgment wiU not warrant an injunction restraining the enforcement of the entire judgment. ^ And where a judgment has been enjoined because of payments having 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 judg- ment debtor, during the pendency of the injunction, should pay a portion of the judgment enjoined, the injunction will be made perpetual as to the amount paid.^ § 172. It is held that one surety can not by injunction restrain proceedings at law by his co-sm-ety for contribution unless he tenders the amount due the co-surety who has paid the debt, or alleges his readiness to pay.* But an injunction which has been granted for the purpose of protecting complainant from a sale of his property to satisfy a debt for which he was surety, will not be dissolved because of a statute giving the court out of which execution issued the power of administering equitable relief in such eases. The conferring of equitable powers upon courts of common law does not impair or abridge the jurisdic- ' Miller v. Gaskins, Sm. & M. Ch. 524. « Turner «. Gatewood, 8 B. Mon. 613. ' Cobb «. Hynes, 4 La. An. 150. '' Perry v. Kearney, 14 La. An. 401. ' Tapp V. Beverley, 1 Leigh, 80. ' Craig V. Ankeney, 4 Gill. 335. CHAP. m.J JUDGMENTS iJSD IXEODTIONS. 105 tion of tlie court of. equity; the only result is to create a case of concurrent jurisdiction. i § 173. It lias been held that an order for an injunction to restrain a sale under execution, does not become operative to stay proceedings under the execution until complainant has complied with the terms of the order by giving the necessary 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 injunction. ^ § 174. A judgment in ejectment will not be enjoined upon grounds which might have been used as a defense to the action at law.* Nor vsdll an injunction be granted to restrain the execution of a judgment in forcible entry and detainer against a husband for land claimed by the wife as her separate estate, on the ground that she was not a party to the proceedings. ^ § 175. A judgment will not be restrained upon grounds which had been relied upon in a motion for a new trial and which had there been held insufficient." ISTor wiU an injunc- tion be allowed for the purpose of a new trial where com- plainant has already obtained a new trial at law, but through his own negligence has lost the opportunity of making his defense. '' § 176. 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 prevent the revival of the judgment against his personal representatives. 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 before it was obtained in his name, and a bill filed • Irick V. Black, 3 C. E. Green, 189. » Clarke «. Hoome's Bx'rs. 3 Hen. & M. 33. 8 Id. * Agard «. Valencia, 39 Cal. 393. « Saunders «. Webber, 39 Cal. 387. « Matson v. Field, 10 Mo. 100. ' Dodge 1). Strong, 3 Jobns. Cli. 338. 8 Eichardson i). Prince etc., 11 Grat. 190 106 iNjUNcrnoNS [chap. m. for thia purpose is demurrable by tbe legal representatives of the deceased. The error being merely an error in fact consti- tutes no sufficient equity to sustain an injunction. ^ § 177. As an exception to the general rule denying relief against a judgment where the defense should have been inter- posed at law, an injunction has been granted against a judg- ment 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 con- sideration, who is ignorant of complainant's equities when he takes the note, even though such equities might warrant an injunction against the payee.* § 178. We have already seen in the preceding sections that one's ignorance or mistake of law will afford no sufficient reason for restraining a judgment against him. The operation of the rule is not confined to the case of a party's own igno- rance, but in conformity with the miaxim qui faoit per aUum facit per se, ignorance or mistake on the part of counsel employed in a cause wiU not authorize an injunction against the judgment.* So in the absence of fraud mere negligence on the part of an attorney retained to defend a suit is not sufficient ground for the interference of equity to restrain a judgment. 5 !N"or will the abandonment of a cause by an attorney warrant an injunction against the judgment where other counsel were employed and a trial had, there being no allegations of fraud.' § 179. A bill in equity will not lie against the United States to enjoin proceedings undei- a judgment that has been ' ■Williamson's Adm'r. v. Appleberiy, 1 Hen. & M. 306. '' King v. Baker, 1 Yerg. 450. ' Donelson «. Young, Meigs, 155. * Shricker v. Keld, 9 Iowa, 366 ; Wincliester «. Grosvenor, 48 111. 517. ' "Wynn «. Wilson, Hemp. 698. But in a subsequent application to the court for an injunction in the same cause, fraud being shown in the assignment of the notes on which the judgment was founded, the relief was allowed. See note to same case. * Winchester ii. Grosvenor, 48 111. 517. CHAP, m.] JUDGMENTS AND EXEOU'llONS. 107 paid, since the government is not liable to be sued except with its own consent given by law. But upon a proper showing in such case a stay of proceedings may be had until an investi- gation can be made of the facts. ^ !N^or 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. ^ § 180. 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 defendant to the full amount of the judgment, they will not be allowed 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.^ Where the circumstances of the case require it, the injunction will be dissolved as to a part and continued as to the residue.' And where part only of a judgment has been enjoined, the residue stands as if it were the original, and draws interest from the date of the judgment.' § 181. It has been held that a judgment on a note barred by the statute of limitations, which was properly pleaded, may be enjoined until a hearing where complainant was sick and his counsel absent at the time of taking judgment, judgment having been confessed by one not the attorney of complainant. 1 United States «. McLemore, 4 How. 286 ; Hill v. United States, 9 How. 386. « United States v. Collins, 4 Blatch. 142. 8 Overton ». Stevens, 8 Mo. 632. * Flickinger v. Hull, 5 Gill, 60. " Duncan v. Morrison, Breese, 113. « Lyles V. Hatton, 6 Gill & J. 122. ' Copeland's Adm'r. v. Reese, Wright, O. 728. 108 iNjuNcrnoNS. [chap. in. and witliout authority in the premises. ^ 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 to satisfy a debt of the school district, its sale under execution may be enjoined. 2 So a mortgagee who has sold property mortgaged to him as security for a note, will be restrained from proceed- ings upon his judgment until an account can be had.^ 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.* § 182. The issuing of two executions upon the same judg- ment 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 per- ' petuated if the judgment creditor would be entitled to another as soon as the first is perpetually enjoined.^ § 183. "Where by statute a minimum amount is fixed as a Hmit, 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 alterna- tive 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 reasonable time the judgment creditor may be enjoined from enforcing by execu- tion the alternative judgment for money. *> Equity will not, however, restrain the enforcement of a judgment because there are two funds from which it may be realized, since the ' Cheek v. Taylor, 33 Geo. 137. ' Kenyon i). Clarke, 3 R. I. 67. » Craft V. Bullard, Sm. & M. Ch. 366. * Pettingill v. Moss, 3 Minn. 333. ' Elliott V. Elmore, 16 Ohio, 37. ' Dayton v. Commercial etc., 6 Rob. La. 17. ' Breckenridge i>. McCormiok, 43 111. 491. 8 McClellan v. Marshall, 19 Iowa, 561. CHAP, m.] JUDGIIENTS AHD BXECDTIONi. 109 creditor has an -undoubted right to pursue his remedy in each case until he obtains satisfaction of his debt.i § 184. Though a general creditor whose claim has not been reduced to judgment is not entitled to the aid of equity to prevent the disposition or control of his debtor's property, yet when he has established his claim by a judgment at law the relation which he sustains toward the debtor is entirely different and may, under certain circumstances, warrant the interference of a court of equity. For example, an execution creditor is entitled to an injunction to restrain his debtor and a prior execution creditor from making any disposition of the debtor's personal property levied upon in satisfaction of the first judgment unless by sale under the first execution; and siich relief will be continued until complainant's debt is satisfied. 2 § 185. "Where a railroad company has mortgaged its road and equipments to 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 com- pany to pay the mortgage, it not appearing that the property remaining after such levy would be insufiicient.^ But a judg- ment followed by a levy upon lands with notice of a superior equitable title outstanding may be enjoined on payment of the costs at law.* § 186. 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 question to satisfy all his debts.' ' Muscatine v. Mississippi, 1 Dillon C. C. 536. " Edgar •!). Clevenger, 1 Green Ch. 258. ' Coe V. Knox etc., 10 Ohio St. 412. < Gutshall V. Salsberry, Wright, 127. ' Johnson v. Connecticut etc., 21 Conn. 148. s.Id. 110 " iNJUNCiioNS. [chap. m. § 187. A levy under an execution against third persons upon property owned hona fide by complainant and wMch constitutes his stock in trade, presents such elements of appre- hended damage and injury as are not susceptible of relief by action at law and constitutes suiEcient ground for an injunc- tion. ^ And where one's property is being taken in execution to satisfy the debt of another, equity may interfere for the purpose of retaining the property vn specie, notwithstanding the remedy at law for the recovery of the property or of damages for its detention. The jurisdiction is akin to that entertained by courts of equity to compel a performance of contracts in specie, and is founded upon the necessity of pro- tecting property rights where courts of law afford at best but uncertain and insufficient reparation in damages. ^ § 188. "While as a general rule courts of equity withhold their aid when ample redress may be had in a legal tribunal, it may sometimes happen that the equities relied upon for an injunction can not be asserted in a court of law and a departure from the rule becomes necessary in order to give complete relief. Thus, where the foundation of a bill to enjoin a judg- ment is an agreement of such a nature that it could not have been urged in defense of the action at law, equity may properly ' McCreery «. Sutherland, 23 Md. 471. ' Wilson «. Butler, 3 Munf. 559. The grounds of the jurisdiction in such cases are well set forth in the opinion of the court as follows : " Although a party whose property is taken in execution to satisfy the debt of another may proceed to recover that property or damages for the taking and detaining thereof in a court of law ; and although it is competent to a sheriff having doubts as to the title of the property taken in execution to demand from the creditor an indemnifying bond pursuant to the act in such case made and provided, yet neither of those remedies are in exclu- sion of a pi^oceeding in equity having for its object the retention of the property in specie. Every argument on which the jurisdiction of the courts of equity to compel a performance of a contract in specie is founded, is supposed to hold with equal force at least in favor of retaining a subject of property which another, having no title thereto, claims to arrest and dispose of by means of an execution, rather than turn the rightful owner round to seek an uncertain and inadequate reparation in damages." And see Walker i. Hunt, 2 West Va. 491; Ford «. Eigby, 10 Cal. 449; McCreery v. Sutherland, 23 Md. 471. But see, contra, Lewis ■». Levy, 16 Md. 85 ; Freeland v. Reynolds, lb. 416. OHAP. in. J JUDGMENTS AM3 EXECUTIONS. Ill interfere and enjoin tlie 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 plaintiffs in execution. ^ But where a person, not a party to the proceedings at law, asks to enjoin a sale of per- sonal property under an execution on the ground of a prior incumbrance upon the same property, the court will not interfere. 3 § 189. An injunction restraining defendant and aU othej persons from the sale of personal property until further ordei 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 person 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 at law for its enforcement may be enjoined. 5 But a judgment will not be enjoined because complainants have instituted another suit at law against the judgment creditor to recover unliquidated damages upon a contract, unless such judgment creditors are shown to be insol- vent, or unless other ground exists for believing that the damages to be recovered will not be realized.* § 190. 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 ' Hibbard v. Eastman, 47 N. H. 607. « Anderson v. Biddle, 10 Mo. 23. ' Bowyer v. Creigh, 3 Band. 35. See also as to incumbrances, Walker v Hunt, 3 "West Va. 491. * "West V. Belcbes, 5 Munf. 187. » Collins B. Praiser, 27 Ind. 477. • Boone v. Small, 3 Crancli 0. C. 638. ' 3 Stor\-'s Eq. § 883 ; Clarke v. Henly, 8 T. & C. 187. 112 iNjiXNcrnoNS. [chap. m. debt.i And where a creditor lias entered into an agreement 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.® § 191. The aid of equity may be properly invoked to restrain the enforcement of a judgment against an adminis- trator, the proceedings being had against him in his capacity of administrator, where there are no assets in his hands for its satisfaction. 2 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.faA § 192. Where it is provided by statute that no injunction shall issue on the application of defendant to stay proceedings at law in a personal action after verdict or judgment, unless 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 judg- ment is recovered, its true intent being that one who has obtained a judgment shall not be hindered in any proceedings which he may afterward take for its enforcement, whether by another suit upon the judgment, or otherwise.' § 193. 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 without being indemnified for such damages as he may sustain, he will not be permitted to enjoin proceedings at law brought against him for having sold ' 2 Story's Eq. § 883, and cases cited. ' Armistead «. "Ward, 2 P. & H. 504. , « Haydon «. Goode, 4 Hen. & M. 460. «Id. « Morris etc. v. Bartlett, 2 Green Ch. 9. « Kinney d. Ogden's Adm'r., 2 Green Ch.l68. CHAP, m.] JUDGMEMTS AND EXECUTIONS. 113 property tlie title to wliicli is in dispute.^ It is to lie observed, however, that a stattite providing for the taking of an indem- nifyirig 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 incomplete. 2 A distinction is, however, to be observed 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 may receive the aid of equity. ^ § 194. Wliere in a suit for an injunction against a judg- ment defendant fails to answer a most material charge in the bill and one on which complainant's equity mainly depends, such admission will be talien 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 execution. ^ § 195. Pending an appeal from a court of chancery to a higher court on an order dissolving an injunction against judgments at law, it is improper for appellees to proceed to execute their judgments. Should such an attempt be made the court may properly issue an order to show cause why an attachment should not issue for contempt.* But where pro- ceedings under a judgment have been enjoined the amount of the judgment restrained need not be brought into court unless it appears that there is danger of insolvency.'' § 196. We have already seen in a previous portion of this chapter that courts of equity will not generally interfere with proceedings at law on the ground of irregularities or even » Storrs V. Payne, 4 Hen. & M. 506. ' Walker v. Hunt, 3 West Va. 491. ' Id ; Bowyer v. Creigh, 3 Eand. 25. * Page's Bx'r. ■». Winston's Adm'r., 2 Munf. 298. ' Triplett r>. Turner, 3 J. J. Marsh. 476. » Turner d. Scott, 5 Eand. 332. ' Kodgers «. Rodgers, 1 Paige, 426. S 114 iNJinsranoNS. [chap. in. errors in such proceedings. And wliere 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 affidaTit will not authorize an injunction against the judgment. ^ l^or will the fact that trifling errors have been committed in asses- sing the costs of a judgment afford any ground for enjoining the execution. 2 § 197. Whpre the gi-ound relied upon in support of a bill for an injunction against a sale under judgment 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. ^ § 198. A purchaser at a sale made by a trustee under a trust to pay debts, who is also one of the creditors secTired in the trust, and who gives bonds for the payment of the pur- chase money of the property purchased by him at such sale, can not enjoin the collection of a judgment upon such bonds merely because he is a creditor to a larger amount than he is a debtor, since this would defeat the very object of the trust which is to secure the creditors.* § 199. A creditor who obtains an injunction against a judgment confessed by his debtor on the ground of fraud, and who then proceeds with an action at law against the debtor, obtains judgment and issues execution, 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 to elect the court will dissolve the injunction. ^ The effect of continuing an injundtion under sucli circumstances would be ' Western v. Woods, 1 Tex. 1. » Calclerwood v. Trent, 9 Eob. La. 327. ' Wilson v. Miller, 30 Md. 83. ' Capehart v. Etheridge, 63 N. C. 353. " Livingston v. Kane, 3 Johns. Ch. 334. CHAP, m.] JUDGMENTS AND EXECUTIONS. 115 to give such creditor an advantage over rival creditors whom he has in the meantime delayed by the writ.' § 200. 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 a lien has been secured in accordance with statute for the erection of a building upon leased ground, an injunction will be allowed to prevent the removal of the building by a judgment creditor whose judg- ment is subsequent to the lien, the security being insufficient without such building.^ § 201. An injunction restraining a sheriff from paying over money realized upon a levy is regarded as substantially the 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.* § 202. Where a judgment has been obtained for the purchase 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.* § 203. It may sometimes happen that the peculiar circum- stances 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 suffi- cient to warrant a perpetual injunction against a judgment in slander, that at the time when the defamatory words were uttered, as well as when the judgment was obtained, the person uttering such words was insane or in a state of partial mental 'Id. « Barber v. Reynolds, Sy Cal. 497. » Bjker v. Curtis, 3 Edw. Ch. 111. * Shackle v. Baker, 14 Ves. 468. 116 nsTjimcnoNS. [chap. in. derangemeut on the subject to whicli the words had reference.' Such exceptions, however, resting iipon the special circum- stances of particular cases, in no way weaken the general rule. § 204. Where on the dismissal of an injunction bill filed to restrain proceedings under a judgment a decree has been rendered against complainant and his sureties in the injunc- tion 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 defend- ant from asking judgment and taking out execution upon an injunction bond after the dissolution, is a proceeding entirely unkno^vn to equity practice and can not be supported either on principle or authority.^ § 205. "With reference to the dissolution of injunctions against judgments at law the same general rule prevails as in other cases, and the injunction will, in general, be dissolved on filing an answer denying the equity of the bill.'* And where an injunction has been improperly granted against proceedings under a judgment and a new trial has been allowed, the writ may be dissolved withoiit waiting for a verdict in the second trial at law.^ "Where, however, it appears that since the judgment was enjoined facts have arisen that 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. ^ § 206. In general upon a dissolution 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 judgment has been enjoined for a sum claimed to be due the judgment debtor from the creditor, ' Horner v. Marshall's Admr'x. 5 Munf. 460. » BIythe v. Peters, 3 Yerg. 378. ' McReynolds v. Harsliaw, 3 Ired. Eq. 195. * Parkinson v. Trousdale, 3 Scam. 367. ' Vass V. Magee, 1 Hen & M. 2. « Exnicios e. Weiss, 3 Mart. N. S. 480. ' Soutlierland c. Crawford, 2 J. J. Marsh. 870 CrrAP. III.J JUDGMENTS AND EXECUTIONS. 117 bearing an insignificant proportion to the amount of tlie judg- ment, tlie injunction will be dissolved with heavy damages, i § 207. The effect of dissolving an injunction against proceedings under a judgment at law is to remove all ban-icrs preventing the enforcement of the judgment. Execution may therefore issue immediately upon the dissolution and it is not necessary to obtain leave of the court for that purpose.- And it is held that it is erroneous for a court of equity, upon dissolving an injunction against a judgment at law, to enter a deci-ee for the amount of the judgment. ^ ' Barrow v. Eobichaux, 15 La. An. 70. ' Young V. Davis, 1 Monr. 153. ' Duncan v. Morrison, Breese, 111. 113; Hubliarcl jj. Hobson, lb. 147. 118 INJDNCTnONS. [chap. IT, CHAPTEE IV. OF INJUNCTIONS IN AID OF PKOCEEDINGS IN BAKKliUl^CY. § 208. Proceedings in state courts may be enjoined in aid of proceedings in banltruptoy. 209. The jurisdiction an equitable one. 210. Construction of twenty-first section of bankrupt act of 1867. 211. The same. 212. Cases will not be withdrawn from state courts into bankrupt court. 213. Construction of fortieth section of bankrupt act of 1807. 214. Judgment liens obtained bona fide not impaii-ed. 215. Homestead rights. 216. Effect of creditor's knowledge of debtor's insolvency. 217. Lien upon vessel. 218. Property acquired after adjudication. 219. Effect of discharge under state insolvent laws. 220. Parties to the proceeding ; requisites of bill. 221. Receivers appointed by state courts. 223. "Wrongful seizure by marshal. 223. Mortgages. 224. Where defendant declines answering. 225. Formal proceedings not necessary. 226. Effect of bankrupt's discharge. § 208. The jurisdiction of tlie United States courts sitting in bankruptcy to restrain proceedings in tlie state courts against the estate of a bankrupt, though sometimes ques- tioned, may be regarded as too clearly settled to admit of doubt. 1 In such cases the United States courts exercise no supervisory jurisdiction over proceedings in the state courts, since the state court itself can not be enjoined, but the ' Irving v. Hughes, 2 Bank. Reg. 20 ; In re "Wallace, lb. 62 ; In re Metcalf, Bank. Reg. Sup. xliii. ; In re Reed, lb. i. ; In re Metzler, lb. ix. ; In re Richardson, 2 Bank. Reg. 74; Samson «. Burton, 4 Bank. Reg. 1; Same o. Same, 5 Bank. Reg. 459 ; In re Bowie, 1 Bank. Reg. 185 ; Sedgwick 0. Menok, lb. 108. CHAP. IV.J BAKKEUFICY. 119 litigant ih that tribunal may be restrained from doing what would frustrate or impede the jurisdiction expressly conferred by the bankrupt act. i It is to be observed, however, that the jurisdiction is not dependent upon or derived from the fortieth section of the general bankrupt law of 1867, which provides that the court may resti-ain the debtor or any other person from making any transfer or disposition of the property pending the proceedings for an adjudication, and that while this section does impliedly recognize the jurisdic- tion, the previous enactments of other sections confer it. The provision of the fortieth section is held applicable only to ' Irving B. Hughes, 3 Bank. Reg. 20. But in Campbell's Case, 1 Ab ). U. S. R. 185, the jurisdiction is questioned and its existence even denie'l, the court insisting that when the jurisdiction of the state court and the right of the plaintiflF to prosecute his suit therein have once attached, that right can not be arrested or taken away by proceedings in another court. McCandless, J., observes : " The fact, therefore, that an injunction issues only to the parties before the court, and not to the court itself, is no evasion of the difficulties that are the necessary result of an attempt to exercise that power over a party who is a litigant in anotlier and independent forum. It follows, therefore, that this court (U. S. Disb-ict 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 property from the custody of their officers." * * * "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 injunctions in similar cases." The language of the court, however, is to be taken in connection with the fact that in the case under consideration an injunction was sought against the enforcement of judgments of unquestioned validity recovered in the state courts prior to the passage of the bankrupt act, and not only to restrain the judgment creditors from proceeding with the enforcement of their liens, but to enjoin the state court and its executive oflScers. So far as applicable to such a state of facts the observations of the court may be regarded as embodying the true doctrine, but in so far as they deny the general jurisdiction of the United States courts in bankruptcy to restrain proceedings in the state courts against the estate of the bankrupt subse- quent to the filing of his petition, they are opposed to the clear weight of authority. See note 1, page 118. 120 rNjirNcnoNS. [ciiaf. rv. the preliminary stage of the proceedings and in that stage it dispenses with conditions and formalities which must otherwise have been observed.' § 209. Proceedings in bankruptcy are regarded as in the nature of equity proceedings, and the jurisdiction, of the court in the collection and distribation of the bankrupt's estate is in its nature an equity power. ^ And the court may enjoin proceedings against the property of the bankrupt under executions issued upon judgments recovered after the filing of the petition, it being the policy and aim of the bankrupt law to compel an equal distribution of the estate for the benefit of all the creditors.* § 210. Tlie 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, is applicable to all eases where the personal liability of the debtor is sought to be fixed by a final judgment pending the determination as to his discharge. The intent of the section being to prevent a race of diligence between creditors and to protect the banlanipt from being harassed with suits pending the question of his discharge, proceedings in the state courts will be enjoined until that question can be determined.* ' Irving «. Hughes, 3 Bank. Keg. 20. Si In re Wallace, 2 Bank. Reg. 52. " Id. "It is the duty of this court," observes Deady, J., "by means of the jurisdiction given it, to preserve and distribute the estate of the bankrupt among his creditors, as the act prescribes. The respondents, by means of these executions, are attempting to prevent this distribution of the estate. An injunction is a proper remedy or means to prevent this wrong and fraud upon the law from being accomplislied. A petition to the court is the proper means of invoking this power." "In re Metcalf, Bank. Reg. Sup. xliii. Say the court, Benedict, J.: " The twenty-flrst 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 object 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 CHAP. IV. J BANKEUPTOT. 121 § 211. It is to be borne in mind, however, tbat tbe juris- diction conferred by tlie twenty-first section of tlie bankrupt act does not extend to tbe enjoining of proceedings against the banlcrupt in any other district than that in which the proceedings in bankruptcy are pending, and the United States District Court has no power, either under the act of 1S67 or independent of that statute, to restrain proceedings in the courts of the state by reason of bankrupt proceedings pending in another district and before another court, i § 212. Wliile the jurisdiction of the United States courts sitting in banlcruptcy 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 determine 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 efieet of which would be to allow him to reap the advantage of his fraudulent agi'eement from the use of which he has already been enjoined, and an injunc- apply to all cases where the personal liability of the debtor is souglit to be fixed or ascertained by a final judgment pending the determination of the question of his discharge, and, in my opinion, it applies to a case like the present, where an action against the banknipt is pending in the Court of Appeals of the state, to which an appeal has been taken by the bankrupt prior to the filing of the petition 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 being no final judgment, the bankrupt act declares that the suit shall stop, pending the determination of the question of the bankrupt's discharge. This option to endeavor to obtain a discharge in bankruptcy, and failing in . that, to defend all undetermined personal 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." ' In re Kichardson, 3 Bank. Reg. 74. ^ Samson v. Burton, 4 Bank. Reg. 1. »Id. 122 MJUNcrnoNS. [chap. iv. tion will be granted to restrain him from proceeding witli sucli suit, the question being peculiarly within the jurisdiction of a court of bankruptcy. 1 § 213. AYliere creditors have filed their petition for an adjudication of bankruptcy against their debtors, upon the ground of having made preferred assignments and of having confessed judgments with intent to give certain creditors preference over others, and an injunction has been allowed to restrain proceedings under the assignments and upon the judg- ments, such injunction will not be dissolved until the deter- mination of the question of the debtor's bankruptcy. Tlie intent of the fortieth section of the act being to prevent any interference with the debtor's property until a decision is reached upon the question of bankruptcy, the injunction will be continued until such decision can be had.^ § 214. It is to be observed that the bankrupt law in no manner impairs the rights of judgment creditors whose liens upon the bankrupt's property have been acquired in good faith ■Id. ' In re Metzler, Bank. Reg. Sup. ix. The court, Blatcliford, J., constru- ing tlie fortieth section of the act of 1867, say : "The injunctions were f,'ranted under the fortieth section of the act. The intent of the provisions of that section manifestly is, to give the court autliority in a case of invol- untary bankruptcy, 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 decision has been arrived at. The decision is sus- pended 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 debtors should afterward be adjudged bankrupts and an assignee of their estate be appointed, the court would have dissolved the injunctions 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 litigation; and the very object of the remedy by injunction given by the fortieth section would have been defeated." CHAP. IV.] BANKRUPTCY. 123 and without fraud before tlie passage of the act, or before the filing of the petition. The rights of judgment creditors who by the use of diligence have secured their debts as a lien upon the property of the debtor prior to the filing of his petition in bankruptcy, and without fraud or collusion, remain intact and the bankrupt court will not enjoin them from the enforcement of those rights. 1 Thus, where creditors acting in good faith have obtained judgments, issued executions and levied upon the personal property of their debtor prior to the filing of his petition, and where it does not appear that the property levied upon is 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 injunc- tion against such sale, the court will grant a dissolution.^ § 215. A creditor who has obtained judgment and issued execution against his debtor before the filing of his petition in bankruptcy, will not be restrained from selling property claimed by the bankrupt as a homestead, since if siich property is in fact a homestead the title thereto is unaffected by the operation of the bankrupt act, and the bankrupt, if wrongfully deprived of his homestead, has his remedy in the state courts. 3 § 216. The question of the creditor's knowledge of his debtor's circumstances at the time of obtaining judgment is not without weight in determining whether he shall be enjoined from pursuing his judgment in the state courts. And where the creditor at the time of obtaining judgment and execution and levying upon the property of his debtor, had sufiicient 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, ' Campbell's Case, 1 Abb. IT. S. R 185 ; In re "Wilbur, 3 Bank. Reg. 71. » In re "Wilbur, 3 Bank. Reg. 71. " In re Hunt, 5 Bank. Reg. 493. * In re Bloss, 4 Bank. Reg. 37. 124 nsTJUNcnoNS. [chai'. iv. havine- reasonable cause to believe his debtor to be in an insol- vent condition, 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 completion of the levy, the assignee was allowed to enjoin the creditor from proceeding with a sale of the estate, the attachment having been levied within four months prior to the commencement of the proceedings in bankruptcy. ^ § 217. Where a vessel belonging to bankrupts has passed with their other assets into the hands of the assignee, and is afterward attached in proceedings in rem to recover damages incurred by a collision with another vessel prior to the adjudi- cation of bankruptcy, the libellants will be restrained from holding the vessel or from interfering 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 libellants in the collision suit have a lien upon the vessel by reason of the collision, it must be submitted to the bankrupt court which has full power to liquidate such lien.*' § 218. 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 competent 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 was provable in the court of bankruptcy.* And the ' Haskell v. Ingallg, 5 Bank. Reg. 205. " In re People's Mail Steamship Co., 3 Bank. Reg. 170. ' Turner v. Gatewood, 8 B. Men. 613. Tliough this decision was under tlie bankrupt act of 1841 it is believed to be equally applicable to the act of 1867. The doctrine as laid down in this case is that while the United States courts have exclusive jurisdiction of the proceedings in bank- ruptcy, the state courts may suspend such proceedings as are inconsistpnt therewith and which are attempted to be carried on through their instl•^- mentality, until the question of the bankrupt's discharge can be determined. "There is in such course," say the court, Marshall, C. J., " no clashing of jurisdiction. The after-acquired property of the bank- CHAP. IV.J BAJSTKRUTTCT. 125 effect of sticL. injunction is to render an officer selling the property with due notice of the injunction a trespasser ab initio^ even though he may have levied upon the property before the granting of the writ.i § 219. "While the authorities are not altogether reconcilable as to the effect of a discharge under the insolvent laws of a state upon judgments 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 judg- ments upon his former liabilities. ^ Thus, where subsequent to his discharge under the state laws, proceedings by sci/re facias are instituted against the insolvent to revive a former judgment, and without fault or laches on his part he is pre- vented from pleading his discharge as a defense to the scire facias, equity will enjoin the enforcement of an execution under the judgment. ^ § 220. As regards the parties who may bring the action it rupt is not -within the operation of the proceeding in 'banlcrnptcy, and certainly not within tlie exclusive jurisdiction of the hankrupt 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 pend- ing litigation in another forum may be determined 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 injunctions to prevent, after a decree in bankruptcy assigning the bankrupt's property, and in " prospect of his discharge by final decree and certificate, the coercive sale of his property acquired after the assignment under an execution for a debt which was provable in the bankrupt court." 'Id. ' Starr «. Heckart, 33 Md. 267 ; Carrington v. Holabird, 17 Conn. 530. But see, contra, Katz «. Moore, 13 Md. 566, where it is held that a judg- ment at law will not be enjoined because of the discharge of the judgment debtor under state Insolvent laws previous to the rendering of the judg- ment, even though the cause of action accrued before the discharge was granted. Tlie court reach this conclusion upon the reasoning that, while the legal liability to pay the debt has ceased, the moral obligation remains as strong as before, and is sufficient to support the judgment." ' Starr ■». Heckart, 33 Md. 267. And see Carrington v. Holabird, 17 Conn. 530. 126 INJUNCTIONS. [chap. IV. is lield that before tlie appointment of an assignee a petition for an injunction to stay proceedings in the state courts by creditors upon their judgment liens can be brought only by the bankrupt himself; after the appointment of the assignees they are the proper parties to apply for the relief, i And since the property of the bankrupt assigned under the act vests in the assignee for the benefit of all the creditors, ho may properly enjoin all proceedings in the state courts relative to such property under an assignment in fraud of creditors. ^ The bin, however, must come within the ordinary principles of equity, and where it fails to show that there is danger of such loss as would be irreparable in a court of law the injunc- tion will be refused.^ § 221. Where, under proceedings in the state courts for the winding up of a partnership, receivers are appointed who take possession of the partnership property, and the partners are subsequently adjudged bankrupts, in the absence of any evidence impeaching the validity of the proceedings or the rightful custody of the property by the receivers, the banki-upt court will not grant an injunction to restrain the receivers from interfering with the property.* § 222. A United States marshal who, under a warrant iii ban'kruptcy directing him to take possession of the bankrupt's property, seizes property held by a third person, being indem- nified 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 commis- sion of a tort, nor will it compel the party injured to submit his claim for damages to that court for adjudication. ^ § 223. The rights of mortgagees under the banki'upt law are subject to the control of the bankrupt court, and it may, ' In re Bowie, 1 Bank. Reg. 185. ' Sedgwick «. Menck, 1 Bank. Reg. 108. ' Beecher v. Bininger, 7 Blatch. 170. * In re Clark, 3 Bank. Reg. 130. And see Alden v. Boston etc., 5 Bank Reg. 380. ' In re Marks, 3 Bank. Reg. 175. CHAP. lY.J BAJSTEEOirrCY. 127 on the application of the assignee, restrain mortgagees from proceedings at law to foreclose a mortgage given by the bank- rupt before the commencement of proceedings in bankruptcy, it being the duty of such secured creditor to bring the property into court to be distributed by the assignee. * And where a sale by mortgagees of chattels mortgaged to them by the bankrupt previous to filing his petition would injuriously affect the rights of the creditors by sacrificing 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 prevent the mortgagees from selling under the power of sale.^ § 224. If the defendant declines answering the injunction bill he is regarded for the purposes of a motion to dissolve as admitting its allegations, and the bill showing that the judg- ment enjoined has been discharged by proceedings in bank- ruptcy, it is error to dissolve the injunction.* § 225. In exercising the equity powers pertaining to a court of bankruptcy it is not necessary that resort should be had to the formal and plenary proceedings usual in courts of equity, btit a mere petition setting forth the facts and praying for the relief sought is sufficient.* So a motion to dissolve the injunction is sufficient to raise the question of its merits without resort to the formality of a demurrer. ^ Nor need notice of the application for the injunction be given to the adverse party unless directed by the court or judge.* § 226. The effect of the final discharge of the bankrupt is ' In re Snedaker, 3 Bank. Reg. 155. ' Foster v. Ames, 3 Bank. Reg. 146. ' Peatross v. McLaughlin, 6 Grat. 64. * In re Wallace, 3 Bank. Reg. 53. 'Id. • Id. The restriction in the act of 1793, forbidding the issuing of injunctions without notice, is held applicable only to suits in equity in the Supreme and Circuit Courts of the United States, and it does not affect the allowance of injunctions under the equity power conferred upon the Dis- trict Court by the bankrupt act in relation to matters exclusively within the jurisdiction of the bankrupt court. See also In re Muller, 3 Bank, Reg. 86. 128 iNjuNono^is. [chap. iv. to dissolve ipso facto an injunction granted until the dis- cliarge for the purpose of restraining creditors from proceed- ing against the bankrupt in the state courts. It follows, therefore, that no motion is necessary for a dissolution, the order for the discharge itself terminating the injunction, and the bankrupt must thereafter use his discharge itself as his protection in all cases affected thereby. * ' In TO Thomas, 3 Bank. Reg. 7. OHAP. VJ ECGLESIASnCAl MATTEES. 129 OHAPTEE V. OF INJUNCTIONS IN ECCLESIASTICAL MATTERS. § 237. Religious trusts protected in equity. 238. Violation of such trusts may be enjoined. 229. Distinction between a cturcli in its corporate and in its eccleslas. tical capacity. 230. Courts of equity will not revise acts of church discipline. 231. Will not correct proceedings of ecclesiastical tribunals. 233. Will not revise interpretation of church canons by ecclesiastical tribunal. 233. Decisions of church judicatory final as to all questions of faith, discipline, or ecclesiastical rule. 334. Usurpation of pastoral office, when enjoined. 235. When injunction will be refused against pastor. 336. Removal of minister by vot? of church will not be enjoined. 337. Perversijn of trust by trustees. 238. Trustees intruding upon functions of pastor. 239. Trustees acting within their authority will not be enjoined. 240. Trustees may enjoin pretended trustees. 341. Dedication of property to pious uses as effectual as its conveyance, 242. When court of equity will investigate doctrinal questions. 343. Conveyance of property to two religious bodies. 244. Injunction not allowed against a mere trespass. 245. Diversion of church property to school purposes may be enjoined. 346. Rights of pew holders. § 227. The aid of equity is frequently invoked for the pro- tection of religious charities and for the enforcement of trusts created by donations of money or property for religious pur- poses. The jurisdiction in this class of cases rests upon the foundationoof trusts and may he regarded as ancillary to the general jurisdiction of equity over that subject. In all such charities the courts will, if possible, give effect to the inten- tion of the donor, provided such intention is legal, and the 9 130 iNjTOionoNS. [chap. V, objects of the trust being aseertamed any perversion thereof or departure therefrom may be prevented by injunction, i § 228. In accordance with these principles it is held that where real estate is conveyed to the trustees of a religious association, to be forever afterward used as a place of religious worship according to the doctrines, forms and discipline of a particular church, if the minister and trustees allow ministers of a diiferent faith, not recognized by the church prescribed as the standard, to use the premises, they are guilty of a departure from the trust created by the original contract, and a court of equity may properly interfere to prevent the ' Eniakern ». Lutheran Cliurclies, 1 Sandf. Oh. 439. In laying down the principles npon which courts of equity interfere in this class of cases, Sandford, assistant Vice Chancellor, says: "They proceed on the ground of a trust, and their aim is to ascertain its scope and ohjects and to enforce its proper and faithful administration. The jurisdiction is environed with greater difficulties than that over the ordinary private trusts which come under our review, by reason of the uncertainty which frequently prevails, as to the precise objects and intentions of the donor. The inquiry often arises after a great lapse of time, when no living witness can inform the conscience of the court, and when its search for truth must be made in history, and in the controversial writings of contemporaries of the donor. The course of the administration of the trust, and its alleged perversion, are also frequently shrouded in mystery and involved in the subtleties of polemics and theology. Still the court is bound to exercise its control over these charitable funds, as well as over the less difficult class of private trusts. * * In the leading English authority, The Attorney General v. Pearson (3 Merivale, 353, 395,) Lord Eldon decided that when it appears to have been the intention of the founder of a trust for religious worship, that a particular doctrine should be preached, it is not in the power of the trustees, or of the congregation, to alter the designed objects of the insti- tution. The length and breadth of that decision may be the better esti- mated from the circumstance that the purpose deelwred in the deed, was simply 'the worship and service of God.' Aud those words, without more, are deemed in England to create a trust for the established religion. Yet on its being clearly shown by proof, that the purpose of the trust was to maintain dissenting doctrines, the court decreed that purpose to ba carried into execution. And as thete were no Unitarians known among the dissenters when the trust was created, (A. D. 1701,) the Unitarians were excluded from the trust. (7 Simons' R. 290 S. 0. upon thai first decree.)" See also Miller ■». Gable, 3 Denio, 493 ; Baptist Church «. Witherell, 3 Paige, 396 ; Bowden u. McLeod, 1 Edw. Oh. 588 ; McGinnis «. Watson, 41 Pa. St. 9 ; Sutter v. Trustees, 42 Pa. St. 503 ; Winebrenner ®. Colder 43 Pa. St. 244. OHAP. V.J BOCLESIASnOAL MATTERS. 131 premises being used otherwise than in the manner preecribed by the terms of the trust.* So where property is conveyed to the trustees of a religious body to be used for church purposes, and it has been so used for a long and uninterrupted period, an unauthorized use and occupancy of the premises by persons not members of the religious society, thereby hindering and impeding the regular occupants of the church, will be enjoined, such trespass being continuous and irreparable.^ § 229. A distinction has been drawn between the ecclesias- tical and the corporate character of religious associations which is worthy of notice in determining whether a proper case is made out to warrant the interference of a court of equity. Thus, where the trust as declared in the deed convey- ing property to a religious society is for the interests and purposes of such society, either for church or burial purposes, and it does not specify the ecclesiastical connection of the society nor attempt to perpetuate any particular faith, the trustees take the property for' the use of the society in its corporate rather than its ecclesiastical capacity. It follows therefore that a majority of the members of the corporate society may, under such circumstances, change its ecclesiastical relations or connections, as well as the views which shall be taught from the pulpit, without subjecting themselves to the restraining power of a court of equity. ^ And the fact that the society has separated from the church with which it was originally connected and has united itself with another denomi- nation, does not constitute such a departure from the purposes of the original trust as to authorize the interference of equity, the property being still held in the same corporate capacity.* § 230. Courts of equity, having no ecclesiastical jurisdic- tion, will neither revise nor question the ordinary acts of ' Attorney General ®. Welsh, 4 Hare. 573. » Gilbert ®. Arnold, 30 Md. 39. ' Burrel v. Associate Reformed Cliurcli, 44 Barb. 383. « Id. And see Petty v. Tooker, 31 N. Y. 367; Robertson ®. Bullions, 1 Kern. 343. It is to be observed, however, that the decisions in New York rest to a considerable extent upon the religious incorporation laws of that state. 132 rajxTNonouB. [chap. v. cliiircli discipline or the administration of ehurcli government Their only power arising from the conilicting claims of the parties to the church property and its use, they will not decide as to the status of membership and will not determine whether members have been properly or improperly excom- municated from a church, but accept the fact of their expulsion as conclusive proof that they are not members, and that having been expelled by a vote of the church, they are no longer entitled to any of the rights or privileges of membership. 'Il.us, where property has been conveyed in trust for the use and benefit of a religious organization, members of the church who have been excommunicated by a vote of the majority, but who still insist on their right to enjoy and use the church property, and who have takem possession and made periodical uses of it without the consent and in defiance of the main body of the members, may be enjoined from interfering with or using the property. ^ ' Shannon . New York, 4 Johns. Ch. 53. The grounds upon which the jurisdiction rests in such cases is laid down by the chancellor as follows: " The principle upon which the injunction so modified is to be upheld is, that after a claim of right accompanied with actual and constant pos- session for twenty-five years and upwards, the corporation of New York can not be permitted without due process of law to enter upon the posses- sion of the plaintiff, and pull down buildings, fences, etc., under their right to regulate highw'ays." * OHAP. VI.] EEAL EEOFERTt. 1S3 III. Of Judioiai- Sales wheeb Jttdqment Debtoe has no Tttle. § 266. Want of title in judgment debtor not usually ground for injunction. 267. Questions of title should be tried at law. 268. Distinction between legal and equitable title. § 266. It not nnfrequently happens that sales of real estate are attempted under judicial process against one who has no title to the property levied npon. While the cases upon this subject are far from reconcilable, the clear weight of authority is in favor of the proposition that, in the absence of fraud or gross injustice and irremediable injury, courts of equity will not entertain jurisdiction in restraint of judicial sales under executions against third parties having no title to the property sold. The rule as thus stated is but a corollary of the propo- sition that equity will not grant relief where ample redress can be had at law, and the injuries resulting from a sale of one's property under execution being generally remediable in courts of law, such sales will not usually be enjoined, i Thus, a sale of lands under execution will not be enjoined at the instance 6f a third person claiming title who alleges no fraud and does not show that his rights will be prejudiced or that gross and irreparable mischief will result fronj allowing the sale to proceed.^ § 267. In support of the rule as above laid down it is to be ' Hall «. Davis, 5 J. J. Marsb. 390 ; Watkins ■». Logan, 3 Monr. 21 ; Boul- din v. Alexander, 7 Monr. 425; Cougbron d. Swift, 18 111. 414; Freeman v. Elmendorf, 3 Halst. Cb. 475, aflBrmed on appeal to the Court of Errors, lb. 655 ; Henderson v. Morrill, 12 Tex. 1 ; Carlin v. Hudson, lb. 202. But see, contra, Brummel v. Hurt, 3 J. J. Marsh. 709 ; Downing «. Mann, 43 Ala. . 266 ; McCuUoch «. Hollingsworth, 27 Ind. 115 ; Bach v. Goodrich, 9 Rob. La. 391. In Bach i). Goodrich, and McCulloch ■». Hollingsworth, the doc- trine is laid down that the obligation of a grantor of real estate with covenants of i^arranty to defend the title of his grantee, constitutes such an interest as to make him a proper party to apply for an injunction against a sale of real estate to satisfy an execution against a third person. ' Henderson «. Morrill, 12 Tex. 1 ; Carlin v. Hudson, lb. 202. 154 mjTOrcnoNs. [chap. vi. observed that questions of title are properly triable in a legal rather than an equitable forum, and no departure from the rule will be allowed 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 dispute and claimed by another person, a court of equity wiU not enjoin, there being no especial equities requiring a departure from the usual rule of leaving the parties to their remedy at law.i Even where fraud is relied upon as the foundation for the relief the party complaining must show a definite injury to himself as the result of the fraud. And the purchaser 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.^ § 268. In the application of the rule a distinction has been drawn between cases where the parties aggrieved possess the legal and where 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.^ ' Freeman v. Blmendorf, 3 Halst. Ch. 475, affirmed on appeal, lb. 655. * Marriner v. Smith, 27 Cal. 649. ' Orr i>. Orr, 3 J. J. Marsh. 269. CHAP. VI.] KEAL FEOrEETT. 165 IV. Olottd upon Title. § 269. Potmdation of tlie juiisdiction. 270. Difficulty of establisliing test. 271. Judgment already satisfied. 273. Distinction between cases where defect is and where it is not apparent on the record. 273. Special legal remedies a bar to relief in equity. 274. Possession under tax deeds. 275. Bona fide purchaser for value entitled to injunction. ■ 276. Improper assessment for street improvements. 377. Of lands not patentable. § 269. 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 analogous to the well-settled jurisdiction of courts of chancery for the removal of cloud upon title; and the reasoning which supports the jurisdiction in the latter case would seem to apply with equal if not greater force in the former. It seems, therefore, 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, i And it may be asserted as a general proposition, that a sale of lands under execution which would confer no title upon the purchaser and whose only effect would be to cloud the title of others wiU be enjoined.^ ■ Pettit V. Shepherd, 5 Paige, 493; Christie «. Hale, 46 111. 117; Oakley v. Trustees etc., 6 Paige, 263. But see, oontra, Armstrong v. Sanford, 7 Minn. 49 ; Montgomery v. McEwen, 9 Minn. 103. » Bank of U. S. b. Schultz, 2 Ohio, 471; Norton v. Beaver, 5 Ohio, 178; Christie v. Hale, 46 111. 117 ; Key etc. «. Munsell, 19 Iowa, 805 ; Pixley ■». Huggins, 15 Cal. 127. And see Pettit ■». Shepherd, 5 Paige, 498 ; Oakley v. Trustees etc., 6 Paige, 263. It is not necessary that the sale should divest complainant of his title to warrant equity in interfering ; it is sufficient 156 iNJixNcmoNs. [chap. vi. § 270. It is difficult to establisli any exact test whicli will be applicable in all cases to determine what constitutes sucb a cloud upon title as to authorize a court of equity to interfere for its prevention. It has been held, howeyer, that if the sale which it is sought to restrain is such that in an action of ejectment brought by the purchaser under the sale 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 to prevent the sale.i' § 271. An attempt to enforce a judgment already satisfied may sometimes cast such a cloud upon the title of the judg- ment debtor as to warrant equity in interfering for the protection of other creditors whose claims are established by judgment. Thus, where a prior judgment 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 judgment 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. ^ § 272. In the exercise of the jurisdiction for the prevention of cloud upon title, a distinction is drawn between cases where the invalidity or illegality charged as the cloud is shovm 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 arbitration, if the award for the partition is invalid upon its face no such cloud will result as to warrant equity in enjoining the proceedings.* And to authorize the interference in this class of cases it is 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 etc. «. Munsell, 19 Iowa, 305. ' Pixley ®. Huggins, 15 Cal. 137. « Shaw «. Dwight, 16 Barb. 536. sMeloyB. Dougherty, 16 Wis. 269. OECAP. VI.J EEAI. PEOFEETY. 157 held ttat 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 cloiid 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. 1 § 273. Since the interference for the prevention of a cloud upon title grows out of the inadeqimcy of the remedy at law, it follows that where special legal remedies are provided sufficiently efficacious to meet the exigencies of the case and 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.^ ' Moore v. Cord, 14 Wis. 313 ; Gamble v. Loop, lb. 465. ' Drake v. Jones, 37 Mo. 438. .This was an application for an injunction to restrain a sheriflE's sale of real estate under an execution on the ground that it would pass no title and might impair the rights of the real owner by clouding his title. The relief was denied, the court, Eichardson, J., saying : " If the effects of a sale under the defendant's execution, whilst it passed no interest, would cast a hurtful doubt on the plaintiff's title, which he could only remove by evidence in pais, and the purchaser could stand by indefinitely and refuse to litigate his right until the evidence to repel it might be lost and the plaintiff less able to contest it, and in the meantime the true owner be unable to sell and afraid to improve, and thus be denied the full dominion over his property, then the exercise of the power of the court by the writ of injunction would be properly invoked as a means of preventing injury and of precautionary justice. But our law has disarmed a person having no title of the power by false clamor to injure the title of another in that way. In the first place, provision is made with minute particularity for perpetuating testimony; and then again, if the plaintiff is out of possession he may immediately bring his ejectment; but if he is in possession, and wishes to silence an adverse ol£^imant, he may file a petition and compel him to bring an action to try the title, or be forever barred from claiming any right or title adverse to the petitioner. (R. 0. 1855, p. 1241, § 63.) * * * Several of the author- ities cited from other states, as to the power to enjoin in cases like the 158 iHJTJiTonoNS. [chap. n. § 274. "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 commission 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. 1 § 275. A bona fide purchaser of real estate for a vali^ible consideration may restrai^j a sale of the property under execu- tion when he has purchased after the rendition of the judgment but before the execution was delivered to the sheriff, the judg- ment not being a lien upon the property, since such sale would operate as a cloud upon his title. ^ And where an execution creditor is proceeding unlawfully to sell the homestead interest of his debtor he may be enjoined upon the same ground. ^ § 276. "Where land has been improperly assessed for benefits arising from the opening of streets, the commissioners having proceeded irregularly and illegally in condemning the prop- erty, 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 can be had at law.* § 277. 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 complainant'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. ^ present one, seem to be in point; but our system is different from theirs, and we think tliat sound policy requires us to deny tlie relief the plaintiff seeks in the form and at the time it was asked." And similar doctrine is held in Kuhn «. McNeil, 47 Mo. 389. • Blackwood ®. "Van Vleet, 11 Mich. 353. " Martin v. Hewitt, 44 Ala. 418. « Tucker o. Kenniston, 47 N. H. 367. * Leslie ». St. Louis, 47 Mo. 474. ' Taylor v. Underhill, 40 Cal. 471. OHAP. VI.] T?niAT, FEOPEBTy. 159 V. Of iHJxrNonoHS to eesteain ihe CoUiBOTioii of Pcechase MOKBT ON FaILTJEE OF TniE. § 378. Unsettled state of the authorities. 379. Vendor's fraud sometimes a ground for injunction. 380. Purchaser in possession with warranty can not enjoin collection of purchase money. 381. Knowledge of defect in title by vendor. 383. Where possession has not been given injunction may be allowed. 383. Outstanding incumbrances no ground for injunction. 384. Pendency of action of ejectment. 385. Where conveyance has not been given injunction may be allowed. 386. Eecovery barred by statute of limitations. 387. Sales of hazard. 388. Special stipulations. 389. Cases where vendee relies upon vendor's representations. 390. Conflict of authority. 391. Cases where defect of title has been held suflcient ground for the injunction. 393. Failure of consideration. 393. Vendor's insolvency a ground for relief. 394. Inability to defend at law. 395. Judicial sales. 396. Violation of vendor's agreement. 397. Possession without conveyance. 398. Failure of vendor to procure outstanding title. 399. Where remedy at law is inoperative. , 300. Buty of vendor seeking a dissolution. 301. Injunction rarely perpetuated. 303. Purchaser with knowledge of defect can not enjoin. 308. Kescission of contract by purchaser. 304. Effect of special contracts. 305. Difiiculty of obtaining title no ground for relief. 306. Injunction not allowed because of unliquidated damages. 807. Purchaser must use diligence in availing himself of his remedy at law. 308. Damages on dissolution. § 278. Upon no branch of the jurisdiction of equity by injunction, save that in restraint of taxation, are the antbori- ties more divergent and irreconcilable than in cases ■^tfiere the relief has been invoked to restrain the collection of unpaid 160 INJUNOTIONS. [chap. Y1. purcliase money of real estate because of failure of title. While upon tlie 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 covenants 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 cases for the exercise of the jurisdiction in equity to restrain the collection of the purchase money. In this unsettled state of the authori- ties it is exceedingly difficult, if not impossible, by any process of generalization, to deduce from the decided cases principles of general application which shall serve as rules for the guidance of com'ts and practitioners. The most that can be attempted is to group together the adjudications both for and against the exercise of the jurisdiction, together with the reasoning upon which the decisions are based. § 279. It will be found upon investigation that many, though by no means aU of the decisions in favor of the juris- diction 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 suppres- sion by the vendor of a knowledge of fatal defects in the title of the property conveyed constitutes such fraud as will authorize the interference of equity to prevent the collection of the purchase money, notwithstanding the remedy at law for breach of covenants of title, if the vendor be insolvent so that a judgment against him would be worthless. ^ Accord- ingly it has been held where the vendor had disguised from the vendee the fact that his only title was a bond for a convey- ance 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 ' Ingran^B. Morgan, 4 Humph. 66. And see Tonge v. MoCormick, 6 Fla. 368. CHAP. Tl.] EEAL PEOPEETY. IGl due course of trade, but had taken it in payment of a pre-existing debt and without indorsement. ^ § 280. Where the purchaser of land is in actual possession imder 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. 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 as an indispensable part of the purchaser's claim to relief in equity, and he being still in possession under covenants of warranty no injunction should be alloyed.^ And in no event wiU mere general allegations of failure of title or ' Id. And see Cl-arke v. Hardgrove, 7 Grat., infra. ' Bumpus «. Platner, 1 Johns. Ch. 213; Abbott ®. Allen, 3 Johns. Ch. 519; Gayle ®. Pattle, 14 Md. 69; Beale «. Seiveley, 8 Leigh, 658; Wilkins v. Hogue, 2 Jones Eq. 479 ; Elliott «. Thompson, 4 Humph. 99 ; Senter ®. Hill, 5 Sneed, 505 ; Truly s. Wanzer, 5 How. 141. In Bumpus v. Platner, 1 Johns. Ch. 213, an injunction was sought against proceedings under a bond and mortgage given for purchase money, on the ground of failure of consideration consisting in defective title, the complainant being in undis- turbed possession under covenants of warranty. The relief was denied, Kent, Chancellor, saying : " I apprehend it may be safely said that there is no case of relief on this ground, when possession has passed and con- tinued, without any eviction at law, under a paramount title. Platner conveyed to the plaintiffs, with a covenant of warranty, and he is bound to defend their title at law ; and Twn constat, that he is not able and willing to do it. There was a case under Lord Nottingham (2 Ch. Cas. 19, Anon.), in which the purchaser was relieved from the payment of the purchase money; but he had' already lost the land, by eviction, under a better title. If the title fails, in this case, the plaintiffs can resort to the covenants in their deeds for their indemnity. I consider an eviction at law an India- pensable part of the plaintiff's claim to relief here, on the mere ground of failure of consideration." But see, contra, Clarke «. Hardgrove, 7 Grat. 399 ; Koger v. Kane, 5 Leigh, 606 ; Bartlett o. Loudon, 7 J. J. Marsh. 641 ; Tonge V. McCormick, 6 Pla. 868 ; Gay v. Hancock, 1 Rand. 72 ; Miller v. Argyle's Ex'r., 5 Leigh, 460; Bullitt's Ex'rs. ■». Songster's Adm'rs., 8 Munf. 55 ; Dorsey v. Hobbs, 10 Md. 412 ; Buchanan ». Lorman, 8 Gill. 51. 11 162 iNjtraonoNS. [chap. vi. of defective title authorize a court of equity in enjoining a judgment for purchase money. ^ § 281. To enable equity to relieve 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 which the purchaser had no means of discovering and that he fraud- ulently suppressed 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. 2 In conformity with this principle it is held that the fears and apprehensions of the vendee that his title may prove defective vsdll in no case warrant the interference of equity where he is still in undisturbed possession of the prop- erty. ^ And where the alleged defects do not amount to a total failure of consideration, and there has been no disturb- ance or eviction, and no suit brought by an adverse claimant, relief by injunction wiU be withheld.* § 282. "Where the purchaser of land has never been placed in possession there seems to be stronger reason for allowing relief in equity against enforced payment of the purchase money. ^ Thus, an injunction has been allowed against a judg- ment on a bond for purchase money where possession of the property was not given at the time stipulated and where no conveyance had been made to the vendee. Under such circum- stances 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 pur- chase money has been enjoined where the land was in the adverse possession of a third party having title to a portion of it, even though this fact were known to the purchaser at the ' Prencli «. Howard, 3 Bibt, 301. " Beale v. Seiveley, 8 Leigh, 658. ' Truly V. Wanzer, 5 How. 141. " Hile V. Davison, 5 0. E. Green, 338. » Hilleaiy «. Crow, 1 Har. & J. 543; Nelson c.Owen, 3 Ired. Bq. 175. • Hilleary v. Crow, 1 H*r. & J. 542. CHAP, m.] EEAL PEOPEETT. 163 time of the contract, vendor having at that time agreed to put vendee in possession, which he has failed to do, and the answer admitting his inability to pnt him in possession, i § 283. Outstanding incumbrances or an outstanding equit- able title wiU 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.* 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 iijjunction on the ground of defect of title but will be left to pursue his remedy at law.^ § 284. "While, as we have already seen, mere general aver- ments 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 extending relief,* yet it would seem that if the title is actually called in question by an action of ejectment there is sufficient ground for restraining a recovery of the purchase money until the proceedings in ejectment are disposed of.^ Though 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 refused 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 ejectment to recover the property, there being no allegation in the bill that the claim of title on which eject- ment 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.'' ' Nelson v. Owen, 3 Ired. Eq. 175. ' Elliott V. Thompson, 4 Humph. 99; Senter «. Hill, 5.Sneed, 505. ' Wilkins d. Hogue, 3 Jones Eq. 479. * French ®. Howard, 3 Bibb, 301 ; Truly v. Wanzer, 5 How. 141. ' Johnson «. Gere, 2 Johns. Ch. 546. « Gayle «. Pattle, 14 Md. 69. 'Id. 164- nWTXNCTIONS. [chap. VI. § 285. "WTiere no conveyance has been given of the prop- erty contracted 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 cove- nants of warranty on which to enforce a remedy at law, is compelled to resort to equity for relief against an injury which might otherwise prove irreparable. Thus, where one under pretense of title in hi-mself assumes to seU 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 prece- dent to obtaining relief, i And where the vendor of real estate executed a bond for title and the purchaser ezecuted a bond for the purchase price at the same time, the acts being concurrent 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 having failed to execute a conveyance as required by his bond, and the injunction should be perpetuated to the hearing.* § 286. 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 voider existing at the time of sale to him as a ground of injunction against a judgment for the purchase money. ^ § 287. "Where a purchaser of land has accepted a convey- ance without warranty of title, it has been held that an injunc- tion 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 properly be termed a sale of hazard and it wstj be laid dovra. as a general rule that in sales of hazard equity will not interpose in the ' Brannum «. Ellison, 5 Jones Eq. 435. ' Brittain c. McLain, 6 Ired. Eq. 165. • Amick V. Bowyer, 3 West Va. 7. ' Price's Ex'rs. v. Ayres, 10 Grat. 575. OHAP. VI.J EEAL PEOPEETY. 165 absence of fraud or misrepresentation. ^ Thus, where a sale ol land is made in gross, the contract being one of hazard on both sides, the purchaser is not entitled to relief in 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 con- cealment concerning the title by the vendor, a judgment for the purchase money will not be enjoined, even though the vendor represented the title as good when it was defective, his representations having been made in good faith. ^ In such cases the purchaser having accepted the land without any agreement, either expi'ess 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.-* § 288. The question as to whether equitable relief shall or shall not be given in a particular case may sometimes be deter- mined 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 injunction against a judg- ment for payment which vendees have refused to make on account of defective title. ^ § 289. While in case of a sale of land in gross, the con- tract being one of hazard on both sides, equity will not, as we have already seen, interfere in aid of the purchaser on accoxmt of a deficiency in the amount of land conveyed," yet where ' Keyton v. Brawford, 5 Leigh, 39 ; Carrlco v. Froman, 2 Lit. 178 ; Sutton V. Sutton, 7 Grat. 334. ' Keyton v. Brawford, 5 Leigh, 39. * Sutton v. Sutton, 7 Grat. 334; Carrico v. Froman, 3 Lit. 178. In the latter case the vendee had contracted in his hond for the purchase money that it should not be withheld by bill in chancery or otherwise if any adverse claims should be made to the land in question ; the effect of this Btipulatiou is not touched upon by the court in deciding the cause. * Sutton 1). Sutton, 7 Grat. 334. « Lucas V. Chapeze, 3 Lit. 31. And see Carrico «. Proman, 3 Lit. 178. « Keyton v. Brawford, 6 Leigh, 39. 166 rNJUNCTIONS. [chap. VI. the purcliasesr has relied upon the vendor's representations as to the amount of land the case is somewhat different. And a vendee virho is not yet in possession may enjoin a judgment for the purchase money on the ground of deficiency in the amount .where he has made the purchase relying entirely upon vendor's representations as to the amount, which representa- tions 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 circumstances -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.^ § 290. 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 relief which may be had in the courts of law, and the vendee being in the enjoyment of undisturbed protection can 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 support of this rule, there are other cases, neither few in number nor wanting in authority, which have held a doctrine direatly opposed to this, and the courts have freely exercised the jurisdiction even though the pur- chaser was protected by the covenants in his deed. We will proceed to a consideration of these cases and, as far as may be, of the reasoning upon which they are based. § 291. The doctrine has been broadly laid down that the ' Lee V. Yaughan, Kj. Deo. 238. " Btrodes v. Patton, 1 Marsh. Dec. 238. 3 Id. CHAP. 'VI.J B.TilAT, PEOPEETT. 167 purcliaser of real estate with general warranty is entitled to an injunction against tlie payment of tlie purchase money upon proof of an actual, outstanding, superior title in a third 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 given to secure the payment of the purchase money, dis- covery 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 ground of defective title impaired by the circumstance 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. 3 § 292. Equitable relief has been allowed for the protection of a purchaser where the consideration 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 con- dition to comply with his contract 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 unexecuted one until vendee has received that for which he has contracted.' •Gay ■». Hancock, 1 Rand. 72; Miller n. Argyle's Ex'r., 5 Leigh, 460; Clarke v. Hardgrove, 7 Grat. 399 ; Koger «. Kane, 5 Leigh, 606 ; Dorsey v. Hobbs, 10 Md. 413; Tonge ?j. McGormick, 6 Fla. 368; Bullit's Ex'rs. v. Songster's Adm'rs., 3 Munf. 55 ; Swain v. Burnley, 1 Mo. 286 (3 edition). But see, contra, Bumpus «. Platner, 1 Johns. Ch. 313 ; Abbott v. Allen, 3 Johns.- Ch. 519 ; Gayle v. Pattle, 14 Md. 69 ; Beale v. Seiveley, 8 Leigh, 658 ; Wilkins v. Hogue, 3 Jones Eq. 479 ; Elliott v. Thompson, 4 Hump. 99 ; Sen- ter ». Hill, 5 Sneed, 505 ; Truly «. "Wanzer, 5 How. 141. * Gay V. Hancock, 1 Rand. 73. And see Miller «. Argyle's Ex'r., 5 Leigh, 460. 5 Clarke v. Hardgrove, 7 Grat. 399. And see Ingram «. Morgan, 4 Hump. 66. * Buchanan i>. Lorman, 3 Gill, 51. » Dorsey v. Hobbs, 10 Md. 413. 168 INJUNCTIONS. [chap-. VI. § 293. Wtere defendant is in possession with general warranty, even thougli tlie title has not been questioned by suit either prosecuted or threatened, it is held that he may enjoin the collection of the purchase money on proof of defective title if the vendor through insolvency is unable to respond in damages in an action upon the covenants of warranty. 1 In such case the legal remedy being insufficient on account of vendor's insolvency, a court of -equity would seem to be the only source to which resort can be had to redress an injury which might otherwise prove irreparable. § 294. And where from the circumstances of the case and through fraud on the part of vendor the vendee was unable to defend against the action at law for the purchase money an injunction may properly be allowed. Thus, the relief has been granted where a purchaser had been deceived by the vendor's false and fraudulent representations as to his title, and where, by relying on such representations, the purchaser was kept in ignorance of the defective title until after judgment was obtained.^ § 295. The authorities are undecided 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 he may restrain the enforcement of the bond on showing that defendant in execution had no title to the land sold, the purchaser having acted in good faith. ^ 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 sa,le was ordered, aud he is not entitled to enjoin a judgment on his bond for the purchase money.* § 296. It may sometimes happen that the vendor has by his own agreement placed himself in such position that it ' Yonge V. McCormick, 6 Fla. 368. ' Fitcli 1). Polke, 7 Blackf. 564. ' Bartlett v. Loudon, 7 J. J. Marsh. 641. * Threlkelds v. CamplDell, 2 Grat. 198. CHAP. VI.] EEAL PEOPEETY. 169 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 in security for part of the purchase price until the quantity of the land shall be definitely ascertained, and in violation of his agreement has instituted proceedings at law for a recovery upon the bond before the quantity of the land has been ascertained, it has been held that the proceedings upon the bond might be perpetually enjoined. ^ § 297. Though a court of equity may properly refuse relief by injunction against a judgment for unpaid purchase money in the absence of fraud where the purchaser is in possession under a conveyance from his grantor with covenants of general warranty, yet if his possession is merely under a title bond or a covenant to convey and the title prove defective judgment for the unpaid money may be enjoined. In such case the vendee being unprotected by covenants of warranty has no sufficient remedy at law and is compelled to seek relief in a court of equity.^ § 298. Failure 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 vendor 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 judg- ment upon vendee's bond for the purchase price, even though the vendee himself procures the remainder of the title from the other owners direct.* 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 ' Bullitt's Ex'rs. v. Songster's Adm'rs., 3 Munf. 55. " Buclianan v. Alwell, 8 Humph. 516. • MoKoy V. Chiles, 5 Monr. 259; Jaynes «. Brock, 10 Grat. 311. ■* Jaynes v. Brock, 10 Grat. 311. 170 INJiraiCITONS. [chap. VI. purchase money. ^ But an injimction granted \inder siicli circumstances will be dissolved on vendor afterward procuring a release of tlie wife's dower, tliougli tlie wi'it having been properly granted in the first instance no damages wiU be allowed upon its dissolution. ^ § 299. 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 property in the state to satisfy a judgment in damages for breach of his covenants of warranty, the injunc- tion 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. 3 Courts of equity will not, however, interfere in behalf of a purchaser unless the title is questioned by a suit either prosecuted or threatened, or unless the purchaser can clearly show that the title is defective.* § 300. Where the vendor of real estate who has been enjoined from collecting the purchase money on account of defective title seeks a dissolution of the injunction the burden is thrown upon him of establishing a good title. ^ And in such case the vendor Avill be required to produce his title to the court in order that it may be satisfied of its sufiicienqy to warrant a dissolution of the injunction.^ ISTor will the purchaser be required to accept a conveyance from a third person to perfect the title, he being protected by his covenants of warranty from vendor.' § 301. "While, as we have seen in the preceding sections, ' McKoy B. CMles, 5 Monr. 259. ' Id. And see as to refusal of damages on dissolution of an injunction properly granted to restrain payment of purchase money, Porter v. Scobie, 6 B. Monr. 387 : Lampton v. Usher's Heirs, 7 B. Monr. 57 ; Kshback v. Williams. 3 Bibb, 342. ' Richardson d. Williams, 3 Jones Eq. 116. * Ralston V. Miller, 8 Rand. 44. ' Moredock v. Williams, 1 Overt. 325 ; Moore v. Cook, 3 Hayw. Tenn. 84, ' Moredock v. Williams, 1 Overt. 825. ' Moore v. Cook, 3 Hayw. Tenn. 84. CHAP. VI.] REAL PEOPEETT. 171 the jurisdiction in restraint of the payment of purchase money is freely exercised, a perpetual injunction will rarely be granted and equity will only extend its protection until the defective 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 preliminary injunction, fails to prosecute his legal remedy on his covenants of warranty within a reasonable period the injunction 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 th* defect by a conveyance of the outstanding title, even though there be general allegations in the bill of other outstanding title, such allegations bang 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 injimction perpetuated and to have the benefit of his purchase at the same time.* § 303. The relief in this class of cases resting principally upon fraud on the part of the vendor, the jurisdiction will not be exercised 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 flhe title and is not misled by fraudulent representations on the part of the grantor. ^ And one who purchases 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 ' Lovell V. Chilton, 2 West Va. 410 ; Swain v. Burnley, 1 Mo. 386 (3 edi- tion). Though it has been held that a dissolution should never be allowed until the tender of a good and sufficient title, and that if allowed before vendor has made good the title the injunction should be reinstated. Grantland v. "Wight, 3 Munf. 179; '■' Swain ii. Burnley, 1 Mo. 386 (3 edition). ^ Lovell V. Chilton, 3 West Va. 410. ' Markham w Todd, 3 J. J. Marsh. 364; Edwards v. Strode, lb. 506. ' Williamson v. Raney, Freem. Ch. 113. 172 INJUNCTIONS. [chap. VI. of the fee and the purchaser will be left to his remedy at law on his covenants of warranty, i § 303. 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 open question. 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 contra* or offer to restore possession to the grantor. ^ Upon the other hand, it has been held that an injunction will lie on the ground of failure of title even though no offer is made by the party complaining to rescind the contract of sale.' Indeed a still broader doctrine has been asserted and it has been held that a deficiency in the quantity of land sold, if discovered before the purchase money is all paid, while it will warrant an injunction, does not constitute a suficient ground for rescinding the contract where the vendor is guilty of no fraud and has sold without warranty.* § 304. In conformity with the general rule denying relief in equity on grounds which might have availed in defense of an action at law, an injunction against adjudgment for pur- chase 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 having 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 > Merritt «. Hunt, 4 Ired. Eq. 406. ' Williamson v. Raney, Freem. Ch. 113 ; Jackson ii. Norton, 6 Cal. 187 And see Markliam ii. Todd, 2 J. J. Marsh. 364. " Warren v. Carey, 5 Ind. 319. * Moredock v. Bawlings, 3 Monr. 73. » Allen V. Philips, 2 Lit. 1. CHAP. TlJ EEAL FEOPEETY. 173 he will 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. ^ § 305. 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 difiiculty in obtaining title from mfant heirs of the vendor, the purchaser having neglected during the lifetime of vendor to make p9,yment and obtain a conveyance.^ § 306. It is a well-established principle that unliquidated damages can not be urged by way of set-off in proceedings in equity. In conformity with this principle it is held that a biU will not lie to enjoin an unpaid balance of purchase money whose real object is to obtain damages for an alleged fraud in the transaction. The object of such proceedings being simply to procure damages a court of law is the proper fornm in which to seek relief* And where an injunction is sought on the ground of unpaid taxes which constitute a lien on the premises, if the amount of the taxes is so small as to fall below the amount fixed by statute as the minimum of the jurisdic- tion of the court, the relief will be refused.* § 307. A purchaser seeking the aid of equity against the enforcement of the vendor's right to the purchase money on the ground of fraud, must use reasonable diligence in availing himself of whatever remedy he may have at law. And where a purchaser of realty, claiming that he was induced to pur- chase by false and fraudulent representations as to a never^ failing spring upon the premises, neglects to pursue his legal remedy, either by recouping his damages in an action brought by the vendee for the balance of the purchase money, or by a ' Mitchell 0. Sherman, I^eem. Ch. 120. ' Prout v. Gibson, 1 Cranch C. C. 389. In this case the infant heirs were not made parties to the bill. ' Robertson v. Hogsheads, 3 Leigh, 667 ; Koger v. Kane, 5 Leigh, 606. And see Frieze v. Chapin, 2 R. I. 429. ' Reynolds v. Howard, 3 Md. Ch. 331. 174 iNjTOronoNS. > [ohap. vi. separate action of his own for the fraud, he will not be allowed to restrain vendor from enforcing his judgment for the purchase money. ^ § 308. Since the question of damages on the dissolution of an injunction is dependent upon whether the jurisdiction was properly exercised upon sufficient cause in the first instance, it follows that where an injunction has been properly granted against a judgment for purchase money because of defective title to the premises conveyed and has been dissolved upon the title being perfected by the grantor, no damages should be allowed upon the dissolution.^ In such cases the purchaser having properly invoked the aid of equity for the protection of his right should not be compelled to pay damages to the vendor who alone is in fault. " Hall V. Clark, 31 Mo. 415. «Fishback «. "Williams, 3 Bibb, 343; McKoy v. Chiles, 5 Monr. 259; Porter v. Scobie, 5 B. Monr. 387 ; Lampton «. Usher's Heirs, 7 B. Monr. 57 ; Eeeves «. Dickey, 10 Grat. 138. And the purchaser who obtains an injunction on the ground of defective title is entitled to costs, even though the title should afterward be made good. Eeeves v. Dickey, 10 Grat. 188. CHAP, vl] eeal peoeerty. 175 VI. MOETGAGBS AJTO DeEDS OF TeTJOT. § 309. Sale under mortgage may be enjoined. 810. Deeds of trust. 311. Irreparable injury must be cle'arly sbown. 812. Judgment in another county. 313. Mortgagor in possession may be restrained from committing waste. 814. Grounds of the jurisdiction. 315. Special cases. 316. Substantial injury must be sbown. 317. Special cases. 318. Fraud. 319. Injunction not allowed merely to hinder sale. 820. Mistake a ground for the relief. 821. Foreclosure proceedings may be enjoined when mortgage has been satisfied. 822. Growing crops. 323. Mortgages of chattels. § 309. Courts of equity will sometimes interfere by injunc- tion to restrain proceedings under a sale of mortgaged premises where such proceedings are against conscience and threaten irreparable injury. ^ Thus, where there is a dispute concerning the title to real estate which has been mortgaged to secure the purchase money, a sale of the property to satisfy the mortgage may be restrained if its enforcement would be against conscience and fair dealing and would entail great loss on the mortgagors.^ So a temporary injunction has been awarded against a sale of mortgaged premises under a power of sale contained in the mortgage of which complainant, the assignee of the mortgagor, was ignorant when he purchased the premises, the mortgage never having been recorded. ^ And where property has been released from the terms of a mortgage, but, notwithstanding such release, it is afterward • High etc. «. Grier, 4 Jones Eq. 182; Pierson v. Ryerson, 1 McCart. 181 ; Piatt t). McClure, 3 Woodb. & M. 151. ' High etc. ■». Grier. 4 Jones Eq. 133. ' Piatt V. McOlure, 8 "Woodb. & M. 151. 176 iNjnNcrnoiis. [chap. n. sold under a decree in foreclosure, a perpetual injunction may be allowed against proceedings at law to recover possessiou under such sale.i § 310. A sale of property under a deed of trust will not be enjoined where complainant admits by his bill that a portion of the debt secured by the deed of trust is justly due but makes no tender of such amouqt. He who would have equity must first do equity, and in the absence of any offer on the part of complainant to pay the amount which he admits to be due he is entitled to no consideration in a court of equity. ^ And where it is sought to restrain a sale of land under a deed of trust on the ground that the deed was executed to secure the payment of a portion of the purchase money of certain personal property purchased by complainant under a false impression as to its character and value, there being no allega- tions of warranty or of false and fraudulent representations in the original bargain, it is held that an injunction will not lie. The doctrine of caveat emptor applies to such a sale, and in the absence of fraud and deceit the purchaser is not entitled to relief in equity. * § 311. It may be asserted as a general rule that equity will not interfere by injunction to prevent the foreclosure of a mortgage unless it be shown that great and irreparable injury is likely to result, or unless complainant shows himself entitled to more speedy relief than can be had by the slower process of courts of law.* And to warrant the exercise of the jurisdic- tion mere general statements or opinions of complainant as to the injury likely to ensue if the proceedings are left unre- strained will not suffice; facts must be stated and not conclu- sions or inferences from those facts. ^ Thus, a general allegation in the bill ^hat the foreclosure would materially injure and embarrass complainant in his right is not sufficient to warrant ' Pierson v. Ryerson, 1 McCart. 181. ' Stringliam v. Brown, 7 Iowa, 33 ; Sloan v. Coolbaugh, 10 Iowa, 31 ; Casady «. Bosler, 11 Iowa, 242. ; ' Street v. Rider, 14 Iowa, 506. ■• Montgomery «. McBwen, 9 Minn. 103. « Foster v. Reynolds, 38 Mo. 553 ; Montgomery i>. McEwen, 9] Minn. 103. CHAP. VI.] EEAL PEOPEETT. 177 tlie relief. 1 Nor is it sufficient to allege that complainant does not owe the note described in the mortgage, but he must set forth; specifically the equities upon which he relies to enjoin the sale. 2 And the fact that the mortgagor has unliquidated demands against the mortgagee which he desires to set off against the indebtedness secured by the mortgage will not warrant an injunction against a sale under a power contained in the mortgage, since the rule is regarded as well settled that unliquidated damages can not be pleaded by way of set-off to proceedings in equity.* § 312. The fact that judgment has been rendered against the mortgagor as garnishee in another county, does not of itself constitute sufficient equity to warrant him in restraining mortgagees from the collection of the money by a sale of the mortgaged premises under a decree in foreclosure, and in the absence of any allegation that he has satisfied the judgment against him as garnishee he will not be allowed to enjoin pro- ceedings under the decree.* And the fact that the mortgagee threatens to sell the premises absolutely and without redemp- tion, does not warrant a court of equity in enjoining a fore- closure of the mortgage by advertisement under the power of § 313. The jurisdiction of equity to restrain the commission of waste by the mortgagor in possession, is clearly established from the authorities and is exercised for the purpose of pre- venting such acts as would depreciate the value of the premises and render the security insufficient. The rights of the mort- gagee beiiig in their nature purely equitable and to be enforced by proceedings in equity, it would be falling short of the ' •Montgomery ii. McEwen, 9 Minn. 103. And it is lield in this case that the fact that the acts complained of would, if allowed to proceed, result in clouding complainant's title will not authorize an injunction. This doctrine, however, is clearly opposed to the weight of authority. See sub- division lY. of this chapter. Cloud upon title, and cases cited. " Foster v. Reynolds, 38 Mo. 553. ' Frieze v. Ohapin, 3 B. 1. 429. And see Eohertson ®. Hogsheads, 8 Leigh, 667 ; Koger v. Kane, 5 Leigh, 606. * Dunham v. Collier, 1 Greene, Iowa, 54 » Armstrong v. Sanford, 7 Minn. 49. 12 178 rNJUNcmoNS. [chap. vi. demands of justice if a court of equity could not in a proper case interfere by injunction to protect the property which is the subject of controversy from destruction. ^ It is not neces- sary 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 foundation for the exercise of the jurisdiction.* § 314. The interference of equity to prevent the commis- sion of waste by the mortgagor in possession rests upon two grounds : first, the right of the mortgagee to the protection of the entire security unimpaired during the life of the mort- gage;" 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 protec- tion of equity against the commission of waste.'' Tlius, 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. 8 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. ' § 315. A junior mortgagee will be allowed to restrain pro- ceedings under a decree of foreclosure whereby it is attempted ' Brown v. Stewart, 1 Md. Oh. 87 ; Maryland «. Northern etc., 18 Md. 198; Ensign «. Colturn, 11 Paige, 503; Gray v. Baldwin, 8 Blackf. 164; Bunker e. Locke, 15 Wis. 635. ' Mm-dock's Case, 3 Bland, 461 ; Salmon «. Clagett, 8 Bland, 136. . ' Maryland v. Northern etc., 18 Md. 193. * Ensign v. Colhurn, 11 Paige, 503. ' Nelson etc. v. Pinegar, 30 111. 473. «Id. '' ' Brady v. "Waldron, 3 Johns. Ch. 148. « Cooper V. Davis, 15 Conn. 561 ; Murdock's Case, 3 Bland, 461 ; Salmon ». Clagett, 3 Bland, 136. ' Eotinson «. Kussell, 34 Cal. 467. For further consideration of the sub- ject of waste committed by mortgagees in possession, see Chapter IX. CHAP. VI.] EEAL PEOFERTY. 179 to tack subsequent advances to the prior mortgage so as to create a lien to the* prejudice of the pwisne incumbrancer. i And a mortgagee may be restrained from proceedings at law to sell the equity of redemption in satisfaction of the mort- gage debt. 2 But where proceedings are instituted in equity for the foreclosure of a mortgage the mortgagor in possession will not ordinarily be restrained before answer from receiving the rents and profits of the premises.^ § 316. Substantial injury to the rights of the party com- plaining being an element which must always be made to appear 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 secure 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.'* § 317. The fact that the time of sale of lands under a trust deed is unpropitious, that money is scarce and that owing to the terms exacted the sale will be attended with great if not irreparable loss to the owner of the property, affords no ground for enjoining the sale.^ Nor does the fact that the sheriff has not yet made a report of sale in a proceeding for the foreclosure of a mortgage of itself constitute sufficient ground for enjoining defendant from moving to set aside the sale under the decree of foreclosure. ' § 318. "Where the owner of real estate has been induced by fraud and undue influence to give an absolute conveyance of his property to one who has advanced him money, the owner intending only to give a mortgage or security for the money ' Hughes ®. Worley, 1 Bibb, 300. ' Severns v. Woolston's Ex'rs., 3 Green Ch. 230; Van Mater c. Conover, 8 C. E: Green, 38. ' Oliver d. Decatur, 4 Crancli 0. C. 458. • Rogers «. Michigan Southern etc., 38 Barb. 539. • MuUer t. Bayly, 31 Grat. 531 ; Caperton c. Landcraft, 3 West Va. 540. • Rogers «. Holyoke, 14 Minn. 330. 180 INJUNCTIONS. [chap. TI. advanced, a court of equity will enjoin a sale of the premises by the grantee.* § 319. A subsequent incumbrancer or mortgagee can not restrain a sale of the premises under a prior incumbrance where he refuses to redeem under such prior incumbrance and only seeks to hinder the sale, especially where the property is depreciating in value by lapse of time.^ § 320. 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 devisee 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 nor described in the bill. * And 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.^ § 321. A mortgagor who has paid the mortgage in full and afterward conveys the property with covenants of war- ranty, may properly invoke the aid of equity to restrain pro- ceedings by the mortgagee to foreclose the mortgage which has been satisfied, and he will not be compelled to wait until suit by his grantee on the covenants of warranty." And a mortgagee who has sold property mortgaged to him as security for a note may be restrained from proceedings upon ' Peeler v. Barringer, "Winston's Law and Eq., part second, 5. • Meysenburg ?;. ScUieper, 46 Mo. 209. '."Waldron v. Letson, 2 McCart. 126. * Corles V. LasMey, 3 McOart. 116. ' Hutcliinson v. Jolinson, 3 Halst. Ch. 40. ' Hubbard v. Jasinski, 46 111. 160. CHAP. YI.j EEAL PEOPEETY. 181 his judgment until an account can be had. i But a judgment creditor will not be enjoined from satisfying his judgment out of the railway property of his debtor on which a mort- gage is given simply because possession of the property by the railway is necessary for the payment of the mortgage.^ § 322. As regards the question of crops growing on the premises at the time of a sale under foreclosure it is held that the doctrine of emblements does not apply and that such crops properly belong 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. ^ § 323. Upon principles analogous to those which govern a court of equity in restraining the commission of waste by a mortgagor in possession in cases of real estate, a morbgagor of chattels may be restrained from removing the property beyond the reach of the mortgagee or from placing it where it will not be forthcoming for the satisfaction of the debt.* And a mortgagee of personal property, where by the terms of the mortgage possession is to be retained until condition broken, may enjoin proceedings against the property by other creditors. 5 While the principle is not disputed that, the equity of redemption of a mortgagor of personal 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.' ' Craft V. Bullard, Sm. & M. Cli. 366. " Coe 1). Knox etc., 10 Ohio St. 412. ' Crews v. Pendleton, 1 Leigh, 397. * Clagett 1). Salmon, 5 Gill & J. 814. 6 Curd V. Wunder, 5 Ohio St. 92. • Smithui-st «. Edmunds, 1 MoCart. 408. 182 iNJUNCTnoNS. [chap, vl VII. Ejectment. § 824. Questions of title properly determinable at law. 325. Equity will not interfere wliere defense can be established at law. 326. Estoppel in pais. 837. Cloud upon title. 828. Mistake of fact a ground for relief. 829. Multiplicity of suits. 380. Contract by infant. 881. Incapacity to sue. 332. Bill to redeem. 833. Parties. § 324. Though injunctions are sometimes granted to stay- proceedings in ejectment to try the title to real property, the jurisdiction is by no means a favorite one with courts of equity, and the usual course in the absence of fraud or some special circumstances demanding the relief is to leave all questions of title to be determined by courts of law. And it may be asserted generally that equity will not in the course of judicial proceedings restrain a person from asserting title to real estate unless in a case entirely free from doubt. "Where, therefore, the title is being tested by an action of ejectment in a common law court having jurisdiction of the subject matter, a (!ourt of equity will rarely interfere or enjoin the proceedings. 1 An injunction under such circumstances would be repugnant to the well-established principle that where there is concurrent jurisdiction over the same subject matter in different tribunals, the right of determining the controversy attaches to that tribunal to which resort is first had.^ § 325. In conformity with the principles laid down in the preceding section, proceedings in ejectment will not be enjoined where the questions of title involved can be properly determined at law, or where the ground relied upon for an injunction would be equally available if urged as a defense to ' Stockton V. "Williams, 1 Doug. Mich. 546. »Id. OHAP. VI.] EEAl FEOPEETY. 183 the action of ejectment. ^ Tlius, where a preliminary injunc- tion lias been granted against proceedings in ejectment, it will be dissolved as to that part of the property in controversy, the title to which can be properly determined in the proceed- ings at law.^ Nor will an injunction be retained restraining an action of ejectment where it is perfectly clear and apparent that complainants have a good defense to the action at law. and that the deed on which plaintiff in ejectment relies is utterly void, but the parties will be left to the decision of a court of law.^ § 326. Where plaintiff in ejectment is in equity and conscience estopped from any claim to recover the premises, as where his conduct has been such as to warrant defendant in going on with the erection of works and the expenditure of large amounts of money, the action may properly be enjoined.* And where one has encouraged the making of expenditures upon land to such an extent that the parties can be reimbursed only by the enjoyment of the land itself, he may be enjoined from prosecuting an action of ejectment to recover possession of the premises. ^ So in conformity with the doctrine of implied trusts, ■ ejectment against a corporation may be restrained where plaintiff in the action has acted for the corporation, and where, though taking the title in his own name, he is considered in equity as a trustee for the company.^ § 327. Actions of ejectment may sometimes be enjoined in equity where the relief is necessary for the purpose of preventing a cloud upon title. Thus, the owner in fee of real property may restrain the prosecution of an action of eject- ment by a claimant under a sheriff's deed which vests an apparently good title in the grantee, on the ground that the ' Camden etc. v. Stewart, 3 0. E. Grreen, 489 ; Morris etc. «. Jersey Ci+y, Beas. 227. ' Camden etc. ■». Stewart, 3 C. E. Green, 489. * Morris etc. i). Jersey City, 1 Beas. 227. * Trenton etc. v. McKelway, 4 Halst. Ch. 84. ' Big Mountain etc.. Appeal, 54 Pa. St. 361. «Id. 184 iNJUNCTnoNS. [chap. ti. sheriff's deed constitutes a cloud upon tlie title, i 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 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.^ § 328. A mistake of fact may sometimes constitute suffi- cient ground for restraining proceedings in ejectment. And where on a sale of lands under execution against judgment debtors in possession, the sheriif 's deed by mistake omitted a portion of the land, an injunction 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. ^ But a mortgagee who has recovered judgment in ejectment for the mortgaged premises, will not before hearing be restrained from proceeding with the enforce- ment of his judgment.* § 329. The prevention of a multiplicity of suits is a favorite ground for the jijrisdiction of equity in restraint of proceedings at law, and will avail as well in restraining actions of ejectment as those of any other nature. 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 portion 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.^ 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 litigation, and cases where the real object of the relief sought is the eon- " Sieman v. Austin, 33 Barb. 9. " MoFarlane v. Griffith, 4 Wasli. 0. 0. 585. ' DeRiemer v. Cantillon, 4 Johns. Ch. 85. ' Todd ®. Pratt, 1 Har. & J. 465. " Woods V. Monroe, 17 Mich. S38. CaiP. VI.J EEAL PEOPEEIT. 185 solidation 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 wiU 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 consolida- tion of the actions which a court of law might properly grant, i § 330. An injunction will not be allowed against proceed- ings in ejectment brought by the owner of land after attaining majority, who while an infant had contracted for the sale of the ,land and given a bond for the conveyance, but had repu- diated the contract on coming of age and refused to ratify the sale, even though the purchase money had been paid.® § 331. 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, 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 enjoined 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 non eompos and the other &feme covert.^ § 332. Where a preliminary injunction 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 biU 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.* § 333. As regards the parties who may properly enjoin ' Peters v. Prevost, 1 Paine 0. 0. 64. Wlietlier in such case the injunc- tion would he allowed against the remaining suits after -'erdict obtained in several, qiuere. ' Brawner v. Franklin, 4 Gill, 463. ' Fleming «. Collins, 37 Geo. 494. ■» Harbison e. Houghton, 41 111. 523. 186 . rNjuNcnoNS. [chap. vi. proceedings in ejectment, it may be observed 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 defendants. And a defendant in ejectment is not deprived of his right to relief against the judgment because of his having come into the ejectment suit after it was begun, by purchasing the interest of the tenant and joining with him in the defense, i VIII. Special Cases. § 334. Landlord and tenant. 335. EflFect of judgment lien. 336. Estovers. 337. Growing crops. 338. Devisees. 339. Writ of restitution will not be enjoined. 340. Purchaser must accept title when tendered. 341. Special cases. 343. Fruit and ornamental trees. 343. Tenants in common ; advancement to heir. 344. Tenants on shares. 345. Sale of wife's property for husband's debts. 346. Trust property. 347. Courts of equity may restrain their own officers. 348. Defects and irregularities in proceedings of municipal tribunals no ground for relief. 349. Delay in making conveyance. 350. Municipal corporations. 351. Government will not be' enjoined from removing its temporary structures. 353. Legislative control over soil supreme to prevent injurious use. § 334. The jurisdiction of equity by injunction is some- times invoked for the protection of the rights of tenants. While, however, it is held that equity has jurisdiction at the suit of a tenant to prevent the landlord from breaking a covenant which, though not made with the tenant, will, if ' Hackwith i>. Damron, 1 Monr. 335. CHAP. Yt] REAL PEOITOtTT. 187 broken, work a forfeiture of tlie lease, yet where a plain con- struction of tlie covenant does not warrant the interpretation put upon it by complainant the relief will not be granted^ Nor will proceedings by a lessor to recover possession of his property demised under a lease from year to year, be enjoined on the ground that the lessee has made valuable improvements which will be lost to him in case of his dispossession.^ § 335. The effect of a judgment lien on real estate is frequently decisive in determining whether an injunction shall be allowed. Thus, a subsequent iona fide purchaser may enjoin a sale of realty under a judgment, when the lien created by statute in favor of the judgment creditor has expired by lapse of time without a sale being had.^ And where judg- ment creditors have stipulated in writing that they will not enforce their lien against certain real estate of the defendant, it has been held that subsequent attempts to enforce the lien against the property in violation of the agreement might be enjoined.* But one who holds a prior lien on real estate will not be allowed to enjoin 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 eqiiity as if such sale had never taken place. 5 §_336. Pending a trial at law to determine the right to estovers, an injunction may be allowed to prevent their use until the right shall be adjusted, the relief being extended in such case upon principles analogous to those governing in cases of waste. Thus, where one claims the right to estovers in the reaf estate of another, but the question has been decided against him in one action at law, and another action is still pending to determine the right, he may be enjoined from taldng estovers. The jurisdiction under such circumstances rests on the necessity of avoiding a multiplicity of suits, and of 1 Rogers «. Danforth, 1 Stockt. 289. 2 West v. Flannagan, 4 Md. 36. ' Riggin «. Mulligan, 4 Grilm. 50. < Reily «. Miami etc., 5 Ohio, 333. 6 Union Bank etc. «. Poultney, 8 Gill & J. 824. 188 iNJUNanoNS. [chap. vi. preventing further depredations upon tlie estate until the right can be fully determined at law.i § 337. "Where a tenant from year to year, on the expiration of his lease proceeds, conti'ary to the custom of the country, to remove hay, straw, fodder and other articles the produce of , the land, a decree in equity having already appointed a receiver of the rents and profits of the estate, a peremptory injunction may be issued to restrain such removal-by the tenant, although he was not a party to the proceedings in equity and no bill [ has been filed against him.^ But a lessee will not be ■ restrained from removing crops out of which he is by the f terms of his contract to pay the rent in kind, there being no ' averments that the lessee is insolvent, or that he is without other property out of which an execution might be satisfied. ^ 'Not will one who has merely a naked right to the possession of real estate, without any legal interest therein, as an adminis- trator, be allowed to enjoin the party in possession of the premises from disposing of the crops which he has raised thereon, the beneficial interest being wholly in him against whom the restraining power of the court is sought to be exercised.* § 338. As between judgment creditors and de^dsees 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 authorizing specifically a levy upon the estate that belonged to the debtor at the time of his death, in whosesoever hands the same may be, he will 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 siich a case the legatees are regarded in equity merely as volunteers, whose rights are subordinate to those of the judgment creditors." ' Livingston ii. Livingston, 6 Jolins. Oa. 497, and cases cited. " Walton 10. Johnson, 15 Sim. 352. » Gregory v. Hay, 3 Cal. 833. * Converse b. Ketchum, 18 Wis. 303. ' Maxwell v. Maxwell, Charlt. R. M. 463. CHAP. VI.] EEAL PEOPEETT. 189 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. ^ § 339. Questions growing out of litigation concerning title to real property, and which are properly determinable in a legal forum, will not be recognized as the foundation for relief in equity against the proceedings. And where, under a con- viction of forcible entry and detainer, a writ of restitution is awarded the successful party, equity will not enjoin proceed- ings for the enforcement of the writ upon the ground that complainant in the injunction suit is the rightful owner ol the land under an elder 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. 3 § 340. A court of equity may properly compel the pur- chaser of land to accept a good title tendered by the personal representatives of his grantor, who had sold with covenants of warranty, notwithstanding the purchaser has obtained judg- ment for the breach of covenants contained in his grantor's ' Baldwin v. Darst, 8 Grat. 132. " Hamilton ». Hendrix's Heirs, 1 Bibb, 67. " Tevis «. Ellis, 25 Cal. 515. Bhafter, J., delivering tbe opinion of the court, says: "Tlie principal purpose of this action is to obtain a decree quieting the possession of the plaintiflF and suppressing future litigation at law by perpetual injunction. If it appeared by the complaint and afB- davit that the defendants were doing or were threatening to do, or were procuring to be done, or were suffering to be done, some act in violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual, or tending to the great and irreparable injury of the plaintiff, an injunction might go, staying the act in view of its consequences. But the complaint does not present a case of that impression. It charges, as a ground for the injunction, that the defend- ants intend to disseize the plaintiff of his lands — that and no more; and asks that they may be restrained from carrying their purpose into execu- tion. Should the defendants succeed in their design, the remedies at law would be speedy, adequate and complete. The order dissolving the injunction is afltaned." 190 INJUNCmONS. [chap. VI. deed; and under such circumstances the court will award an injunction against the enforcement of the judgment. ^ § 341. 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 be in default.^ 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 shoiild be deemed due and pay- able, the provision being construed in the nature of a penalty, relief has been allowed against its enforcement.'^ But the fact that the notes to secure which a deed of trust is given are in suit and their validity is questioned, affords no ground for enjoining a sale under the deed of trust.* § 342. An injunction is the proper remedy on behalf of a vendee in possession to restrain the vendor from the removal of fruit trees and ornamental shrubbery, notvn.th8tanding vendor claims the right to such removal under a verbal reser- vation. Such improvements are considered as passing with the realty and the right of the purchaser will be protected in equity.^ It is, however, incumbent upon complainant to set forth clearly the facts and circumstances on which he relies for relief, and to warrant an injunction against proceedings at law on the ground of confusion of boundaries, complainant must allege the fact of such confusion and the circumstances producing it. 8' § 343. Eelief by injunction will sometimes be allowed between tenants in common for the purpose of preserving the estate and preventing serious injury. Thus, a judgment at ' Eeese v Smith, 12 Mo. 344. ' Boyd v. Lofton, 34 Geo. 494. « Mayo i>. Judah, 5 Munf. 495. * Gibson's Heirs v. Niblett, Sm. & M. Ch. 278. ' Smith V. Price, 39 III. 28. ' Foster, ex parte, 11 Ark. 304. CHAP. YI.] EEAL PEOPEETY. 191 law for the partition of real estate at the suit of some of the tenants in common, may be enjoined by the other tenants upon an allegation that the partition can not be made without serious injury to the owners. And under such 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.' So where one of the heirs of an intestate had received an adyaneement during the life- time of his father in full of his share of the estate, a sale of the intestate's land under a judgment against the heirs may be enjoined.^ § 3M. Tenants of real estate on shares, who by their bad management have caused great loss to the owner, and who are insolvent, may be restrained from removing their share of the crops from the premises until the damages sustained by the owner can be ascertained, the insolvency of the defendants rendering the remedy at law less efficacious than that in equity.^ § 345. A sale of a wife's property to satisfy a debt of her husband affords good grotind for the interference of equity, and where the judgment creditors of the husband purchase a mortgage upon the wife's land, and issue execution thereon for the purpose of securing their judgments against the husband, they may be enjoined from proceeding until they shall execute an assignment of the mortgage to the wife, upon her payment of the mortgage debt, with interest and costs.* "Where, however, the case is simply one of a, conflict of interest, the wife's title being disputed and the creditor having a right to proceed against the property to test her title, it is error for a court of equity to assume jurisdiction, and by restraining the execution thus withdraw the questions in dispute from a trial by jury. 5 § 346. Where a judgment creditor is attempting to enforce ' Gash V. Ledbetter, 6 Ired. Eq. 183. ' Dyer v. Armstrong, 5 Ind. 437. ' Lewis «. Christian, 40 Ga. 187. ' I. Hollenbeck, 4 Barb. 9 ; Macklot v. Davenport, 17 Iowa, 379 ; Center etc. Co. v. Blacli, 32 Ind. 468; Warden v. Supervisors etc., 14 Wis 618 ; Kellogg v. Oshkosh, lb. 623 ; Exchange etc. v. Hines, 3 Ohio St. 1 ; Jackson v. Detroit, 10 Mich. 248; Williams v. Mayor etc., 2 Mich. 560; Greene «. Mumford, 5 R. I. 472 ; Schofield v. Watkins, 22 III. 66 ; Chicago etc. V. Frary, lb. 34; Merritt v. Parris, lb. 303; Munson «. Minor, lb. 594; Metz «. Anderson, 23 111.463. The grounds upon which the relief is refused in cases of irregularity in the proceedings are very clearly stated by Caton, C. J., in Chicago etc. «. Frary, 22 111. 34, as follows : " We have in this case been called on to inquire in wliat cases the powers of a court of chancery may be exercised to restrain the collection of tlie revenue of the state. The decisions of this court show, that in a large majority of the cases involving the regularity of tlie proceedings for the collection of the revenue, we have met with irregularities in the proceedings to such an extent as to destroy the titles to real estate acquired at tax sales. In this way, has a court of common law afforded a remedy for irregularities in the execution of the revenue laws. The satne and even additional redress is afforded to parties whose personal property is seized for a tax illegally assessed. If in all these cases the court of chancery had taken the matter in hand, and examined the regularity of the proceedings whenever an attempt was made to collect the revenue, and restrained its collection, if it were" shown that the law had not been, complied with in the assessment of the taxes, the result would have been that in many if not most cases the collection of the revenue would have been enjoined, and taxes would not have been collected. Under sucli a system of the administration of the laws, with so complicated a revenue system as ours, rendered so by a ten- der regard for the rights and interests of the citizen, no government could exist for a single year. Let us now, by sustaining this bill, stretch out the strong arm of this court and stay the hand of the collector in every case where any irregularity can be shown in the assessment of the revenue, and 198 INJUNCTIONS. [CHAK Vn not appear that the established principle of taxation has been \T.olated, or that actual and substantial injustice will result from the operation of the tax, or that it was for an unauthor- a flood of injunctions would' be spread over the land at once. State and county revenue would cease to be collected, at least till the termination of protracted litigation, and the wheels of government would stop. It is no answer to say, let those whose duty it is to administer the revenue law do it with greater care, and do everything which the law requires, just as it requires, and at the time specified, and be careful that they do no more than is required. We must take things as they are and look at practical results. Neither precedents nor reason will warrant the use of the writ of injunction for such purposes, and to produce such results. Where the law aflbrds an adequate remedy this writ cannot be used, and especially where greater mischief will flow than good will result from it, the court will always withhold this species of relief. Equity cannot attempt to pre- vent, any more than it will redress all wi'ongs. It is not in ordinary but in extraordinary cases that this writ is properly .invoked. If the law can redress the wrong — if it can repair the injury, equity must suffer it, and let the courts of law redress it. This is the general rule to which there are no doubt exceptions, and exceptions too in cases of the collection of taxes. Those exceptions are confined almost, if not entirely, to cases where the tax itself is not authorized by law, or if the tax itself is author- ized, it is assessed upon property which is not subject to the tax. Such was the case of the Illinois Central Railroad Company i). the County of McLean, 17 111. R. 291. There we enjoined a tax levied upon property not ■ subject to that tax. But it is unnecessary to refer to all the cases to be met with in our own and other reports on this subject. Where an injunc- tion has been finally sustained it will generally, if not always, be found to be of this class. It is possible that cases may sometimes be found where this distinction has been disregarded from inadvertence, or from the pecu- liar circumstances connected with them. We can find no other basis for a reasonable and practical distinction. If we permit the injunction to be issued where the tax is autliorized by law and the thing taxed is liable to that tax, there is no stopping point short of enjoining all taxes, whenever any irregularity , has intervened. This power the court of chancery has never assumed, nor could it without the most disastrous consequences to the state. There may be cases, the particular circumstances, or peculiar hardships of which will justify an exception to this general rule. This is not one. We have examined the alleged irregularities in the levy of this tax, and are by no means prepared to say that they can be sustained any- where. Indeed we think a satisfactory answer to all these objections possible, but we choose to place our decision upon the broad ground of jurisdiction, that all may distinctly know when the court of chancery will, and when it will not interfere to enjoin the collection of tlie public revenue, or at least that they may know what the general rule on this subject is." OHAP. VH.] TAXES. 19^ ized purpose, equity will not restrain the execution of a deed of land sold for taxes on the ground that the proceedings were irregular, or even void in some particulars. ^ Thus, an error consisting in a misnomer of the defendant corporation on the assessment books will not authorize the relief. ^ Nor will the fact that property subject to taxation has not been listed warrant the interference. ^ § 356. In case of mere non-compliance with some particu- lar 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 were taken, and do not ' Warden v. Supervisors etc., 14 "Wis. 618 ; Kellogg v. Oshkosh, lb. 633. "Warden ii. Supervisors etc., was a proceeding in equity to enjoin tlie execution of a deed of certain lands sold for taxes upon the ground of irregularities in the assessment. 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 ti-easurer's warrant for the succeeding year. Dixon, 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 pro- cess of the law. The primary and controlling principle in such cases is, that the proceedings 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. Both, 12 "Wis. 91. It will not be enough to show that they are irregular or even void. Courts of equity do not sit to reverse or correct errors and mistakes of law. To be entitled to their assistance the party applying must show that he is in danger of unjustly losing a sub- stantial 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 «. 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, depriving complainant of a substantial and valuable right secured to him by law, the assessment is invalid and the injunction will be allowed to restrain proceedings thereunder. And in Siegel ■». Super- visors, S6 "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. ' O'Neal V. Virginia etc., 18 Md. 1. ' Exchange etc. v. Hines, 3 Ohio St. 1. In Indiana a distinction is taken between the case of a defect in the law itself and irregularities in its fixe- cution, and while in the former case the relief will be allowed, in the latter it will be withheld. Center etc. Co. v. Black, 32 Ind. 468. 200 rNjCNCTroNS. [chap. vn. affect the principle of taxation or tlie groundwork of the pro- ceedings, relief in equity will not be allowed, such, irregulari- ties being regarded as merely technical defects, which, while they can never be wholly avoided, do not go to the merits of the proceedings.^ Nor will alleged irregularities in the sale of lands for taxes afford ground for the interference of equity to restrain the purchaser from afterward selling the same lands, the two sales being entirely independent of and distinct from each other. ^ § 357. An exception to the rule of non-interference has been recognized where an act of legislature, held by the court to be constitutional, exempted certain property from taxation, and an injunction has been allowed against the enforcement of a tax upon such property. ^ And an injunc- tion has been 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 in the state, the property was exempt from taxation.* § 358. But an act of legislature whose terms authorize a transfer or sale of the taxing power of the state with reference to certain corporations, releasing them on certain conditions from further taxation, being held unconstitutional, its enforce- ment 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 propor- tion of taxation be unconstitutional, the omission in pursuance of the statute to tax the property of such railways in the same ratio that individual citizens are taxed, vnll not render void a tax levied upon the property of others subject to taxation. Nor will such omission authorize one who has been ' Mills V. Gleason, 11 Wis. 470; Mills d. Jolinsoii. 17 Wis. 598. « St. Louis V. Qoode, 31 Mo. 216. = Illinois etc. v. County of McLean, 17 111. 391. * Morris etc. v. Jersey City, 1 Beas. 327. " Mott V. Pennsylvania etc., 30 Pa. St. 9, "Id. CHAl'. vn.j TAXES. 201 properly assessed to enjoin tlie collection of the tax against liis own property. 1 § 359. Fraud has been lield a sufficient ground to warrant a court of equity in a departure from the general rule of non-interference with the collection of taxes. Thus, where an assessor, after haying accepted without objection a list of taxable property, afterward and without notice arbitrarily increases the list, the tax payer having no Imowledge of the matter until after the time for redress at law has expired by limitation, the collection of the tax may be enjoined. ^ And the relief has also been allowed against the enforcement of a tax imposed for the payment of judgments obtained through fraud and collusion.^ Eut equity will not interpose 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 con- sideration, and were obtained by fraud, where stich defense might have been pleaded to the action at law.* ISTor will the relief be allowed because the judgments are for an amount greater than that actually due, the mistake having occurred through complainant's own carelessness, and no application having been made to correct the judgment in the court in which it was obtained.^ § 360. 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 property owner, the tax is regarded to the extent thus increased as an unauthorized assessment by persons having no authority, and as such it may be enjoined.* § 361. In general courts of equity will not interfere with the collection of taxes because of mistakes in judgment oa ' Muscatine v. Mississippi etc., 1 Dillon C. C. 53C. " Cleghom V. Postlewaite, 43 111. 438. ' Newcomb v. Horton, 18 Wis. 566. ' Muscatine v. Mississippi etc., 1 Dillon C. C. 536. 5 Id. 8 Darling v. Gunn, 50 111. 434. 202 ESjuNcrnoNS. [chap. vn. the part of the officers assessing the tax, if they have acted fairly and impartially, and where they are not charged with bad faith. 1 But an exception to this rule has been allowed where, under a mistake as to the place where the personal property of a railroad was to be taxed, its capital stock was taxed in a wrong locality, and in such case an injunction has been granted.^ § 362. But in no case will the collection of a tax be enjoined where it is not shown that the injury resulting from its enforcement would be irreparable, and this fact must appear in the bill by issuable averments.^ And where the collector and his sureties are able to respond in damages, there being no allegation of irreparable injury, the per- ' Le Roy v. New York, 4 Johns. Ch. 358. This was a bill for relief against an assessment made to defray the ezpense of constructing a common sewer jn the city of New York, and to enjoin the commissioners from collecting the assessment 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 embarrassing 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 judgment 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 opportunities for the exercise of such an appellate jurisdiction in the history of the juris- prudence and practice of the English Court of Chancery, if such a jurisdiction existed, and yet we find no precedents 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 violation of duty. No bad faith or partiality in the assessors is pretended. 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 Hos. pital, 4 Bro. 165, and Haight «. Day, 1 Johns. Ch. 18. « Mohawk etc. i). Clute, 4 Paige, 384. / 3 Bitter v. Patch, 13 Cal. 398. CHAf. Vn.] TAXES. 303 son aggrieved will be left to his remedy at law for the trespass.! § 363. He who wonld have equity must himself do equity, and where complainant has not paid that portion of the tax which is clearly valid, to which no objection is offered and which can easily be distinguished from the illegal, the injunc- tion will be denied, since the collection of a legal tax will not be restrained to prevent the enforcement of an illegal one.^ ' And the bill itself must show what portion of the tax is legal and what illegal, in order that the -court may properly discriminate between them.^ And it has been held that where the valid and the void taxes are separable, and the amount of the valid can be easily ascertained, the party com- plaining must pay the legal as a condition precedent to relief against the illegal tax.* § 364. 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 questioning the regularity of the proceedings, he is estopped from obtaining relief in equity, even thoiigh the proceedings were absolutely null and void." Thus, property holders who have petitioned the proper aathorities 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 assessment, and their implied 'Id. " Hersey u. Supei-visors etc., 16 Wis. 185; Bond ■ii. Kenoalia, 17 Wis. 384; Mills D. Jolinson, 17 Wis. 598; Howes b. Racine, 31 Wis. 514; Palmer v. Napoleon, 16 Mich. 176 ; Taylor v. Thompson, 43 111. 10 ; Board of Com- missioufers i>. Blston, 33 Ind. 37. 'Palmer v. Napoleon, 16 Mich. 176; Taylor o. Thompson, 43 III. 10. But in Briscoe v. Allison, 43 111. 391, it is held that when from the bill the court can ascertain the proportion that the illegal hears to the legal tax, the illegal portion should be restrained and the remainder collected. * Mills V. Johnson, 17 Wis. 598. •Kellogg V. Ely, 15 Ohio St. 64; Jackson v. Detroit, 10 Mich. 348; Weber i). San Francisco, 1 Cal. 455 ; Peoria i;. Kidder, 26 111. 351. 204 iNjuNanoNS. [chap. vn. asBent will be presumed to the assessment itself. ^ And under sucli circumstances the question of the legality of the assess- ment 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 grading of a street and assures them that they shall be paid, is estopped from invoking the aid of equity to enjoin the collection of a special tax upon his lots to pay for such grading.* § 365. A court of equity is not a court of errors to review the acts of public officers in the assessment and collection of taxes, nor will it revise their decision upon matters within their dis- cretion if they have acted honestly.* So where a particular manner is provided by law, or a particular tribunal designated, for the settlement and decision of all errors or inequalities on behalf of persons dissatisfied with a tax, they must avail them- selves of the legal remedy thus prescribed, and vsdll not be allowed to waive such relief and seek in equity to enjoin the collection 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. ^ But an exception has been allowed to the rule where the grievance complained of consisted "in the mode and form of the collection of the tax rather than in the rate or assessment, and where no remedy is provided by law for such improper mode and form of collection, an injunction may be allowed.'' § 366. A distinction is sometimes taken as to the nature of the property, whether personal or real, which is assessed or levied upon in satisfaction of the tax. And even in those states which have inclined to depart from the general rule ' Motz D. Detroit, 18 Mich. 495. Id. ' Sleeper «. Bullen, 6 Kan. 300. * Livingston «. Hollenbeck, 4 Barb. 9 ; Clinton etc., Appeal, 56 Pa. St. 315 ; O'Neal 1). Virginia etc., 18 Md. 1. And see Heywood v. Buffalo, 14 N. T. 634 ; Mayor v. Meserole, 36 Wend. 132. ' Hughes V. Kline, 80 Pa. St. 227; Macklot v. Davenport, 17 Iowa, 379; Merrill v. Gorham, 6 Cal. 41 ; Peoria v. Kidder, 26 111. 351. » Miller v. Gorman, 38 Pa. St. 309. OHAP. Vn.J TAXES. 205 denying relief in equity against an illegal tax, the courts, while contending for the, jurisdiction in cases alfeeting the title to real estate, nevertheless refiise to interfere where only personal property is involved and leave the parties aggrieved to their remedy at law.^ 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 sustain by reason of the sale, an injunction wiU not be allowed, the proper remedy being at law.^ II. Cloud upon Title. § 367. Equity will interfere to prevent cloud upon title. 368. Illegality must be dehors tlie record. § 367. The most generally recognized exception to the rulr 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 formal one, but works a substantial injury to complainant's rights, resulting in a cloud upon his title, the injunction will ' Deane v. Todd, S3 Mo. 90; Lockwood v. St. Louis, 24 Mo. 30; Van Cott «. Supervisors etc., 18 Wis. 247. But see, contra, Spencer v. Wlieaton, 14 Iowa, 38. And in Peck i>. School District etc., 81 "Wis. 516, the doctrine is laid down that the ohjection that the remedy of the party aggrieved should be sought at law rather than in equity must be taken by demur- rer or answer, and if not so taken the relief by injunction will be granted. The court, it is held, has power to hear and determine the action, and the objection that complainant has a remedy at law is not jurisdictional, and is no more than a rule of practice in the court of chancery. It may well be doubted whether this doctrine is consistent with the weight of the author- ities cited in support of the principles laid down in the preceding sec- tions, since the courts have almost uniformly treated the objection that the remedy was at law as jurisdictional, regardless of whether the question was so presented by the pleadings. 2 Conley v. Chedio, C Nev. 322. 206 mjoicnoTsrs. [chap. vn. be granted. 1 And Avhere the proceedings souglit to be set aside are valid upon tbeir face and extrinsic facts are necessary to be proven to show their invalidity or illegality, equity will interfere to prevent a clond npon title. ^ So where two lots have been assessed together as the property of a person owning 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.* jSTor, in such case, does the fact that there was suiEcient personal property out of which the tax might have been collected vary the question or avail against the injunction. 5 And the jurisdiction to thus interfere for the prevention of a cloud upon title is regarded as pertaiuing 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.'' § 368. It is to be observed in this connection that where the relief is sought to prevent a cloud uj)on title it mil only be granted in those cases where the iUegalitj^ or irregularity complained of exists dehors the record. And where the objec- tion to the validity of the tax or assessment appears upon the face of the tax proceedings, or upon the face of the proceed- ings by which alone the adverse party can claim title to the land sold for the unpaid tax, equity will not enjoin.' Thus, ' Mitchell «. Milwaukee, 18 "Wis. 93; Crane «. Janesville, 20 "Wis. 305; Heywood «. BuflFalo, 14 N. Y. 534 ; Mutual etc. b. Supervisors etc., 33 Barb. 323 ; Morris etc. v. Jersey City, 1 Beas. 237 ; Siegel ®. Supervisors etc., 36 Wis. 70. = Dean b. Madison, 9 "Wis. 402 ; Heywood v. Buffalo, 14 N. T. 534. ' Crane «. Janesville, 30 "Wis. 305. ' Scofleld «. Lansing, 17 Mich. 437. 'Id. " Dean ®. Madison, 9 "Wis. 403. ' Van Kensselaer e. Kidd, 4 Barb. 17; Bouton «. Brooklyn, 15 Barb. 393; Robinson ». Gaar, 6 Cal. 273 ; Bucknall «. Story, 36 Cal. 67 ; "Van Doren V, Mayor etc., 9 Paige, 388 ; Dean v. Madison, 9 "Wis. 403. And see "Wig- gin «. New York, 9 Paige, 17. GHAP. Vn.J TAXES. 207 where the assessment proceedings are void upon tlieir face, so that a purchaser at a tax sale under those proceedings would not obtain a prima faoie title, the remedy at law is perfect and an injunction will be refused. ^ But where by statute a tax deed is nx&iejprima faoie evidence of the regularity of all the proceedings incident to the assessment and sale, if the tax has been imposed 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 sepa- rately, and for the improvement of streets not adjacent to the lots, the sale may be enjoined, the defects not apj^earing on the face of the deed which is, by statute, prima facie evidence of title. ^ Mere vagueness, however, or inaccuracy in the description of land to be sold for taxes is not sufficient to warrant an injunction against the sale on the ground of preventing a cloud upon title, since, if the tax is justly due the cloud may easily be avoided by pajonent.* And where the description in a tax deed is so defective as to render the deed utterly void, a court of equity will not interfere. ^ ' Van Doren «. Mayor etc., 9 Paige, 388. ' Palmer ». Rich, 13 Mich. 414; Jenkins ». Rock County, l.'j Wis. 11. ' Jenkins v. Rock County, 15 Wis. 11. '' Burlington etc. ■». Spearman, 12 Iowa, 112. = Head «. James, 13 Wis. 641. 208 rajmsCTioNS. [chap. vn. III. Taxes imposed by McraicaPAL Coepoeations. § 369. Rule of non-interference relaxed as to taxes levied by municipal authorities. S70. Legislative authority. 871. Equity will not interfere where legal remedy is sufladent. 373. Special cases illustrative of general rule. 373. Tax assessed for improper purpose may be restrained. 374. Tax levied in violation of city charter may be restrained. 375. Failure to advertise for bids. § 369. It will be found on examination that courts of equity have been inclined in the case of assessments by municipal corporations to relax somewhat the stringency of the rule of non-interference as applied to the collection of state taxes. Though it is difficult to perceive any sufficient reason for such distinction, yet the distinction itself remains. Thus, a city assessment without authority of law will be enjoined, even where no question as to cloud upon title is raised, i As where a city has attempted under a provision in its charter to levy a tax for subscription to the stock of a railroad, the relief has been granted on the ground that the provision relied upon was unconstitutional and the tax therefore unauthorized. 2 § 370. Even though the tax be authorized by act of legis- lature, yet where the city authorities have disregarded and failed to comply with all the requirements of the statute, eqiiity will enjoin a sale of land for such taxes on the ground that the proceedings are coram non jiulice, and void.^ But though a sale of lands may be enjoined under such circum- stances, the court will not interfere with a sale of personalty. And 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 ' Poster B. Kenosha, 13 Wis. 616 ; Toledo etc. v. Lafayette, 33 Ind. 202. « Foster ». Kenosha, 13 Wis. 610. 5 Mayor etc. «. Porter, 18 Md. 384. CHAP, vn.] TAXES. 209 and claattels of comiJainant in satisfaction of sucli assessment because of irregulai-ities in tlie exercise of tlie power. ^ But where an act of legislature has extended the city limits by- taking in a large amount of lands not necessary for city pur- poses, the sole object being to make them liable for city taxes, the collection of such taxes may be properly enjoined.^ § 371. Though relief by injunction is, as we have seen in the preceding sections, more freely granted in cases of munici- pal assessments, still if the objections may be urged and the grievances adjusted in a court of law, equity will not interfere Avith the assessment. 3 And where, by the proceedings of the corporate authorities in making the assessment, a remedy is provided for all persons aggrieved, and the proceedings may be removed' by certiorari to the proper tribunal, an injunction will not be granted.* And it is to be observed that a court of chancery will not sit as a court of errors to review and correct the proceedings of mimicipal bodies and inferior political jurisdictions authorized to make assessments, this being matter of legal rather than equitable cognizance. ^ § 372. An injunction will not be allowed to restrain the exercise of the municii^al authority of a city in the levying and collection of a tax on the ground that the passage of an ' Williams v. Mayor etc., 2 Mich. 560. ' Langworthy «. Dubuque, 13 Iowa, 86. " McBride «. Chicago, 32 111. 574; Ottawa «. Cliicago etc., 25 111. 43. * Betts V. Williamsburgli, 15 Barb. 255. ' Mayor etc. v. Meserole, S6 Wend. 132, overruling same case in 8 Paige, 198; Heywood v. Buffalo, 14 N". Y. 534; Blake . Brainard, 33 Conn. 553. » Coulson V. Portland, Deady's Reports, 481. CBAF. Vn.J TAXES. 21] restrained upon tlie complaint of some one representing tlie entire public to whom the money belongs. > § 375. Although a city charter provides that no contracts beyond a certain sum shall be entered into by the city except with the lowest bidder, after advertising, an injunction will not lie at the suit of adjacent lot owners to restrain the enforcement of a tax for paving streets with a patented pavement which is the exclusive property of one flrm.^ Isov will the fact that the city authorities have not complied with their charter in ordering street improvements and in adver- tising for bids, warrant an injunction in favor of an adjacent lot owner before any taxes have been assessed or levied, or any injuries sustained. ^ IV. Bounties. § 376. Bounties to soldiers unauthorized by legislature will be enjoined. 377. Statute must be strictly complied with. 378. Parties; dissolution. § 376. A branch of the jurisdiction of equity in restraint of taxes of recent origin is that which is exercised in cases 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 municipal taxes for such purposes is, that where the municipal author- ities are proceeding without legislative sanction an injunction will 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 z*ecover back the tax paid ■Id. ' Hobart v. Detroit, 17 Mich. 346 ; Harlem etc. v. Mayor etc., 33 N. Y 309. And see dissenting opinion of Dixon, C. J., in Dean «. Charlton, 28 Wis. 590. But see, contra, Dean d. Charlton, 23 Wis. 590. ' Ballard v. Appleton, 26 Wis. 67. * Webster v. Harwinton, 32 Conn. 131 ; New London v. Brainard, 22 Conn. 552; Fiske v. Hazard, 7 R. I. 43S; Drake v. Phillips, 40 111. 388. But see, contra, Truesdell's Appeal, 58 Pa. St. 148. 212 rajinsCTioHS. [ohai\ vn. is inadequate.! Wliere, 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 authority to vote such a tax, if a subsequent act of the legislature has authorized it to ratify and confirm such vote, and this has been done, an injunction will not be allowed. ^ § 377. But, though equity will not interfere with a bounty tax authorized by act of legislature, yet the terms of the statute must be 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 passage 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 exempt 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 act of legislature.' § 378. It is held that an illegal tax for bounty purposes will not be restrained where the complainant files the bill only in his own individual behalf, and where it does not appear that he has an adequate remedy at law, or that the proceedings will be productive of irreparable injury, or wiU lead to a multiplicity of suits, or a cloud upon title.'' And a ' "Webster «. Harwinton, 33 Conn. 131. ' Hoagland «. Delaware, 3 C. E. Greene, 106. ' Baldwin v. North Branford, 32 Conn. 47 ; Booth v. Woodbiuy, lb. 118. And see as to dissolution of the Injunction under such a statute, Bartholo- mew V. Harwinton, 33 Conn. 408. * Vieley v. Thompson, 44 111. 9. 'Id. • Supervisors etc. «. Campbell, 43 111. 490. ' Scribner b. Allen, 13 Minn. 148. CHAP. VH.j TAXES. 213 perpetual injunction granted against tlie payment of a bounty voted by a town meeting to drafted men or their siibstitutes, may be dissolved upon the passage of an act of legislature legalizing such vote.i 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.^ V. Special Cases. § 879. Injunctions against United States revenue laws. 380. National banks. 381. Preliminary proceedings not enjoined; other cases. 382. Franchises ; defect in injunction bond. 383. Taxes in aid of railways. 384. Depreciation in value no ground for relief. 385. Jurisdiction having attached, court will give all necessary relief. 386. Execution against defaulting tax collector will not be enjoined. § 379. The Circuit Courts of the United States will inter- fere to restrain the 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 collecting a revenue tax unauthorized by law.* But a bill to enjoin the enforce- ment of a t9,x 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 • Bartholomew v. Harwinton, 83 Conn. 408. ' Mooers v. Smedley, 6 Johns. Ch. 28. ' Georgia v. Atkins, 1 Abb. U. S. R. 22. And this doctrine would seem to be sustained by the reasoning of the court in Cutting «. Gilbert, 5 Blatch. 359, infra, though the injunction was refused in that case because of improper joinder of parties. But see Powell v. Redfield, 4 Blatch. 45. * Georgia v. Atkins, 35 Geo. 815. ' Cutting V. Gilbert, 5 Blatch. 259. 214 iNjuNonoNS. [chap. vn. by the tax, and the remedy by suit in equity will involve vexatious litigation the court will not grant the injunction.^ § 380. Where the tax upon shares in national banks exceeds the rate of taxation imposed upon banks of the state, its collec- tion may be enjoined, but only upon payment of a sum which shall be a fair eqiiivalent for the tax on the banks of the state.2 ,But a national bank is not entitled to an injunction restraining the collection of a tax upon its shares of stock on the ground that they are illegally assessed against the bank instead of the shareholders, it not appearing that an action for damages would not aiford a complete remedy, and no circum- stances of irreparable mischief being sliown.^ In such case the relief is also withheld on the ground that the bank has no equities, since its property is not in jeopardy but only the shares of the stockholders.* § 381. The proceedings preliminary to the actual levy of a tax will not be enjoined, whether it is about to be imposed apon personalty 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.^ And a private tax payer, suiiering no particular grievance by the tax imposed, can not assume on behalf of the public to restrain the proceedings, but he can only enjoin where his individual grievances are distinct from those of the public at large. ^ l^or will a tax be enjoined because complainant has paid previous assessments which were illegal, and which he now seeks to have set off against the tax in question.' Nor will equity interfere if the pro- ceedings, originally defective, have been subsequently cured by act of legislature. 8 ~«> § 382. Where a tax upon a franchise has been illegally 'Id. ' Frazer v. Siebern, 16 Ohio St. 614. ' First National Bank v. Mereditli, 44 Mo. 500. 'Id. ' Miller v. Grandy, 13 Mich. 540. «Id. ' Fremont v. Early, 11 Cal. 361. " Cowgill V. Long, 15 III. 203. CHAP. Vn.] TAXES. 215 imposed tlie proper remedy is at law and no relief will be allowed in equity against its collection. ^ l^ov will the collec- tion of an assessment 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 street, the injunction being sought, not by the company, but by an adjacent lot owner. ^ But where the writ has been properly granted in other respects it will not be reversed because the bond was for a sum much less than the amount of the tax and costs, if the party against whom the injunction was granted is not injured by such deficiency. 3 § 383. The issuing of bonds and the levying and collecting of a tax in aid of subscriptions to a railroad by a county court, will not be enjoined on the ground of want of jurisdiction in the court to take such proceedings without a vote of the people, since a sale of the tax payer's property under such pro- ceedings would not divest the owner of his title, and he can maintain an action at law for the property and for damages for its detention.* And an entire tax or assessment should not be enjoined on the ground that too much has been assessed. ^ § 884. 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 valuation 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 ' DeWitt V. Hays; 3 Cal. 463. "Bagg v. Detroit, 5 Micli. 336. And in Maryland it is held that unless the owners of a majority of .the feet fronting on a street to be paved assent in writing to the paving, the proceedings of the city authori- ties are void, and equity has jurisdiction on the application of such owners as have not assented to restrain the sale of property for such paving. Holland v. Mayor etc., 11 Md. 186; Bouldin ®. Same, 15 Md. 18. » Drake v. Phillips, 40 111. 388. * State V. Parkville etc., 33 Mo. 496, approving Sayre «. Tompkins, 38 Mo. 448. ^ Indianapolis v. Gilmore, 30 Ind. 414.. 216 INJUNCTIONS. [CHAI'. VII. will not assume jurisdiction to adjust the inequalities and misfortunes produced by civil war.' § 385. "Where tlie 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 property to satisfy the tax, the relief being allowed upon the familiar 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.^ § 386. 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. ^ » Wiite Sulpliur Springs Co. v. Robinson, 8 "West. \"a, 542. ' Hamilton v. Pond du Lac, 25 Wis. 490. » Gxvabj «. Bell, 40 Geo. 133. CHAT. Vm.] B3GHWATS AND EAILKOABS. 217 OHAPTEE VIII. OF INJUNCTIONS AGAINST HIGHWAYS AND EAILKOADS. i 387. Courts ■will balance relative convenience and inconvenience. 388. Injury must be irreparable; estoppel; relative injury. 889. Injunction may be allowed pending trial of right. 390. Apprehensions of future injury not sufficient. 391. Failure to compensate owner for damages a ground of injunction. ,392. Illustrations of the rule. 393. Further illustrations of the rule. 394. Statutory remedy must be exhausted before equity will interfere. 395. Where legal remedy is insufficient injunction may be allowed. 396. Non-compliance with contract no ground for injunction. 397. Owner's laches a bar to relief. 398. Acquiescence a bar to relief. 399. Adjoining proprietors ; parties ; inadequate compensation. 400. Tender of damages. 401. Railway in default can not enjoin owner. 402. Duration of injunction. 403. Injunction against municipal corporations allowed with much caution. 404. Opening and widening of streets. 405. Railways held to strict compliance with conditions of grant. 406. Illustration of the rule. 407. Courfwill not interfere with possession. 408. Misappropriation of land dedicated to use of public for sti-eets may be enjoined. 409. Railway in a city not a nuisance per se; may, however, be regulated in equity. 410. Special statutory remedy must be followed. 411. Injunction granted pending question as to legal authority to close a road. 413. Unauthorized extension of railway; forcible opening of highway. 413. Irreparable injury will warrant the relief. 414. Land acquired by a railway for particular puqioses. 415. Where body authorizing construction of railway has acted ultra vires, road may be enjoined. 416. Aanting of trees ; construction of levees. 218 rNjTTNCTioKS. [cHAP. vm. § 417. Great caution necessary in exercising tlie jurisdiction. 418. Improper conduct of a common carrier may be restrained. § 387. Courts of equity are frequently called upon to inter- fere by injunction with the construction of highways and rail- roads in such manner or under such circumstances as would be productive 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 withholding the writ, and will be largely governed by such circumstances in determ- ining 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 Avould result in no corresponding advantage to any one, not even to the persons asking the injunction, it wiU not be granted. ^ § 388. In the absence of any allegations of irreparable injury an injunction will not be granted against the construc- tion of streets or roads, since without such injury no sufficient reason exists for seeking redress in an equitable rather than a legal forum. 2 ISTor will the relief be granted in favor of one who has been guilty of great laches in the assertion of his rights 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, authorized by act of parliament to enter upon his land, to proceed with the erection of its works for a considerable length of time without interruption or complaint, he is estopped from the aid of equity for the prevention of the work. 3 And where the work is of great magnitude and iuTolves considerable expense, as in the construction of a rail- way, if it appears that the injury which would result to the defendant by granting the relief prayed, in case the result ' Torrey v. Camden etc., 3 0. E. Green, 393. And see Qreenlialgli v Manoliester etc., 3 Myl. & C. 784, infra. ' Holmes v. Jersey etc., 1 Beas. 299. s GreentLalgh ». Manchester etc., 3 Myl. & 0. 784. ' CHAP. Vin.] HIGHWAYS AND EAILEOADS. 219 sliould prove it to have been wi-ongly granted, is 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. ^ § 389. 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 pending the trial of right. 2 And if the injury resulting from the road which it is sought to restrain is likely to prove irreparable in its nature, and if it is not susceptible of adequate compensation in pecu- niary damages, a proper case is presented to warrant the interference of equity.^ Upon similar grounds of the inad- equacy of the remedy at law, an injunction may be allowed upon allegations of defendant's insolvency, since such insol- vency would render futile any attempt to recover pecuniary damages for the loss incurred.^ § 390. 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 ordering a survey of the road, to grant the petition, will not authorize a court of equity to enjoin the proceedings. ^ § 391. The ground upon which the aid of equity is most frequently invoked to restrain the opening of roads and rail- roads is the neglect or refusal to make proper compensation for the land appropriated to the use of the road. The general rule applicable to cases of this nature is, that failure or omis- sion to compensate the owner of land, or to tender compeTisa- ■Id. ' Champlin «. Morgan, 18 111. 393. ' Champion «. Sessions, 1 Nev. 478. ■•Id. « Winkler v. "Winkler, 40 111. 179. 220 ' INJUNCTIONS. [OHAl^ TUI. tion, for damages incurred by locating a road over his premises, will authorize a court of equity in restraining proceedings until the damages are properly adjusted, i The reasoning in sup- port of the rule is found in the danger of such serious and irreparable injury resulting from the continuation of the work that the tardy process of courts of law would afford but poor relief An injunction is therefore regarded as the most appro- priate and efficient remedy for the protection of the rights assailed and for the prevention of such irreparable injury as would be likely to result from a continuance of the proposed work. ^ § 392. Where a railway company claims and is attemjjting to exercise the right of entering upon real estate for the con- struction of its road, under color of law, but without having complied with the requirements of the statute, an injunction will be allowed to prevent further proceedings. ^ And an ' EiohardsB. Des Moinesetc, 18Iowa, 259; Sidener «. Norristown etc., 23 Ind. 623 ; Commissioners etc. ■». Durham, 43 111. 86 ; Horton v. Hoyt, 11 Iowa, 496 ; Harness i>. Chesapeake etc., 1 Md. Ch. 248 ; Western etc. v. Owings, 15 Md. 199 ; Eoss i). Elizabeth Town etc., 1 Green Ch. 432 ; Powers «. Bears, 12 Wis. 213. And see Browning i). Camden etc., 3 Green Ch. 47 ; Bonaparte v. Camden etc., Baldw. 227; Penrice «. Wallis, 37 Miss. 172; Bensley v. Mountain etc., 13 Cal. 306. And it was stated bj^ Lord Cotting- ham, in a recent English case, to be most essential to the interests of the public, that such jurisdiction should exist, and should be exercised when- ever 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 substi- tuted in its place, you may have the satisfaction, at a future period, of discovering that the railway company were wrong." River etc. v. North etc., 1 Railway Cases, 135. ^ Commissioners etc. v. Durham, 43 111., 86 ; Sidener ii. Norristown, 23 Ind. 628. ' Browning «. Camden etc., 8 Green Ch. 47 ; Bonaparte v. Camden etc., Baldw. 227. The grounds upon which courts of equity interfere to pre- vent railway companies from illegally appropriating private property have been well stated as follows: "The injury complained of as impending over his (complainant's) property is its permanent occupation and appro- priation to a continuing public use which requires the divestiture of his whole right, its transfer to the company in full property, and his inherit ance to be destroyed, as effectively as if he had never been its proprietor. No damages can restore him to his former condition ; its value to him ia not money, which money can replace ; nor can there be any specific CHAP. \1U.] HIGHWAYS AND ItAILEOADS. 221 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 tendered an amount agreed upon by arbitrators chosen under a statute held to be unconstitutional.! So it has been held that courts of equity may properly interfere in cases of this kind without refer- ence to the question whether the injury complained of is irre- parable in its nature.^ Nor is it necessary that tliere should be any threat or declared intention on the part of the railway company to go on with the work, if it is doing preparatory acts indicating an intention to proceed.^ And where a rail- way company has been enjoined from the use of land without having made payment or tender of damages as provided in its charter, and without consent of the owner, the injunction will not usually be dissolved on motion before a hearing upon the merits.* § 393. In conformity with the general principles laid down in the previous sections, it is held that where a railway com- pany neglects and refuses to pay the damages properly assessed against it for the right of way over complainant's land, and continues to operate its road over the land in question, an injunction will be allowed until payment has been made of the damages assessed.^ And where the company is proceeding, under claim and color of right, to permanently locate its road compensation or equivalent ; his damages are not pecuniary, vide 7 Johns. Ch. 731; his objects in making his establishment were not profit, but repose, seclusion, and a resting place for himself and family. If these objects are about to be defeated, if tis rights of property are about to be destroyed, without the authority of law; or if lawless danger impends over them by persons acting under color of law, when the law gives them no power, or when it is abused, misapplied, exceeded, or not strictly pursued, and the act impending would subject the party committing it to damages in a court of law for a trespass, a court of equity will enjoin its commis- sion." Baldwin, J., in Bonaparte v. Camden etc., Baldw. 231. ' Powers V. Bears, 13 "Wis. 318. And see Shepardson v. Milwaukee etc. 6 "Wis. 605. ' "Western etc. «. Owings, 15 Md. 199. ' Bonaparte v. Camden etc., Baldw. 237. * Boss V. Elizabeth Town etc., 1 Green Ch. 433. ' Eichards v. Des Moines etc., 18 Iowa, 259. 222 mjimcrnoNS. [chap. -rai. over one's land without having made any compensation therefor, equity will interpose to prevent the construction of the road.^ So commissioners of highways, who are proceeding to open a road without having adjusted the damages with the owner of land over which the road passes, will be restrained. ^ § 394. The rule as ahove 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 themselves aggrieved in the assessment of damages for their property taken, such statutory remedy must be first exhausted before equity Avill extend its protection. ^ 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.* 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 entitled to an injunction against the city authorities to prevent their entering iipon his land.^ § 395. "Where the legal remedy is plainly insuificient to meet the necessities 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 reasonable time, be made to the owner of private property for damages resulting to him by laying out a street through his property, the opening of the street wiU be enjoined until security is given for all damages which may be incurred." ' Sidener v. Norristown, 23 Ind. 633. * Commissioners etc. v. Durham, 43 111. 86. ' Nichols V. Salem, 14 Gray, 490; New Albany etc. v. Connelly, 7 Ind, 83. And see Parliam i>. Justices etc., 9 Geo. 341. 4 New Albany etc. v. Connelly, 7 Ind. 83. ' Nichols 11. Salem, 14 Gray, 490. « Keene v. Bristol, 36 Pa. St. 4C. OHAP. Vm.] HIGinVATS AND EAILR0AD8. 223 § 396. While the jurisdiction of equity to prevent by injunction the use of private property for railway purposes without compensation is, as we have already seen, freely exer- cised, the non-compliance by a railway company with its contract for the payment of damages to the owner of the land, who has voluntarily conveyed the right of way to the company upon its promise to pay, constitutes no sufficient ground for an injimction, even under a statute authorising injunctions against railways to prevent their use of private property without compensation.! 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 volun- tarily conveyed the right of way is barred from asserting his claim to relief in equity, the remedy being at law upon the agreement of the company to pay for the land taken. ^ 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 construction of its road, constitutes no ground for the interference of equity to restrain such construction. In all such cases the remedy at law for violation of contract is ample, and equity willnot entertain jurisdiction.^ § 397. As in all cases of the exercise of the strong arm of equity by injunction, 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, con- structed has stood quietly by and neglected to insist upon compensation 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.* In such • Vilas «. Milwaukee etc., 15 Wis. 233. 'Id. ' Gallagher v. Fayette etc. 38 Pa. St. 103. * Hentz «. Long Island etc., 13 Barb. 646 ; Erie etc. v. Delaware etc., 6 C. E. Green, 283 ; Goodin •». Cincinnati etc., 18 Oliio St. 169. And in the case last cited the court say, "Welch, J. : " Where a party stands by, as we must presume the plaintiffs to have done in the present case, and silently sees a public railroad constructed upon his land, it is too late for him, after the road is completed, or large sums have been expended on the faith of his apparent acquiescence, to seek by injunction, or otherwise, to deny to the 22J- rNJUNcnoNs. [chap. yux. case an injunction, if granted at all, should only be allowed as a last resort, and after all oi'dinary means of relief have proved ineffectual. "^ § 398. But, where the owner of real estate has invited a railway company 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 injunc- tion will not be granted to restrain the erection. •'' § 399. Where adjoining proprietors of real estate are entitled to compensation for their interest or property in a street appropriated by a railway company, an injunction will be granted to prevent such appropriation until due compensa- tion is made.* But the people, being the aggregate body politic, and having no property traversed by the line of the proposed road, and therefore no property rights to be pro- railroad company tlie right to use the property. Considerations of public policy, as well as recognized principles of justice between parties, require that we should hold in such cases that the property of the owner can not be reclaimed, and that there only remains to him a right of compensation. The injunction in the present case might have been sought at the first known attempt, or even threat to despoil the can»l, or to construct the railroad upon its line. The omission to do so is an implied assent. The work being completed, the public, as well as those directly interested in the road, as stockholders and creditors, have a right to insist on the appli- cation of the rule that he who will not speak when he should, will not be allowed to speak when he would." ' Hentz V. Long Island etc., 13 Barb. 640. ' Pettibone v. LaCrosse etc., 14 Wis. 443. ' Higbee v. Camden etc., 5 C. E. Green, 435. ■■ People V. Law, 34 Barb. 494. CRAP. yin.J HIGHWATS AJSTD EAILEOIDS. 225 tected, are not entitled to sncli relief. ^ And where a muni- cipal corporation, nnder 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 certiorari being insufficient. ^ § 400. 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 damages may be sulficient to bar the person aggrieved from relief in equity. Thus, where all the proceedings required by law for the opening of a public high- way have been fully complied with, and damages for the land condemned have been properly assessed and tendered the owner, who refuses them, he will not be allowed to enjoin an officer from opening the highway.* But if damages for the land appropriated be not tendered the owner or his agent, he may properly enjoin proceedings for the opening of the road.* § 401. The owner of land over which a railway passes will not be restrained at the suit of the company from exercising acts of ownership over the land, where the company is itself in default in the payment of damages for the land appro- priated. Thus, where the company has agreed with the owner to submit the question of damages to arbitration, it will not be permitted to enjoin him from asserting and exercising his ownership over the premises so long as it is in default in the payment of the sum agreed upon by the arbitrators; in such case the company vnll itself be enjoined from usin^ the premises until the amount is paid." § 402. The object of an injunction, in the dass oi vases 'Id. » Baldwin ». Buffalo, 29 Barb. 896. ' Creanor ». Nelson, 23 Cal. 464. ' Curran v. Shattuck, 24 Cal, 427. ' Stewart «. Raymond etc., 7 Miss. 668. 15 226 iNjuNcrnoNB. [chaf. vni. under consideration, being the protection of the property owner from such loss and injury as would result from taking his property without compensation, it will be enforced 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 on the ground that they have not assessed the damages to property holders and provided for the payment thereof as required by law, the ofiBcers will only be enjoined until such time as they shall have complied with the require- ments of the law and made suitable provision for damages incurred; and it is error in such case to make the injunction perpetual, i § 403. Tlie jurisdiction of equity in restraint of the action of municipal corporations in regulating streets and highways is exercised with much caution, and is not regarded as a favorite jurisdiction with the courts. In the absence of allegations of irreparable injury, equity will hesitate to inter- fere where the effect of an injunction 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 ordinarily 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, afford sufficient ground to warrant a departure from the rule and authorize an injunction against the proceedings.* § 404. An injunction will not be allowed to prevent the authorities of a city from exercising their control over the • Champion ®. Sessions, 3 Nev. 371. ' Holmes v. Jersey City, 1 Beas. 209. 8 Id. CHAT. Vm.] HIGHWAYS AND EAUJJOADS. 227 opening or widening of public streets or highways, or from interfering therewith at the suit of one whose only right is based on twenty years adverse user and possession. Nulhim terrvpus occurrit regi, and in the absence of other equities siich adverse possession will not warrant an injunction, i Nor will equity interpose 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 sidewalk under proper authority, but will leave the parties to such redress as is afforded by the ordinary legal tribunals.® § 405. Courts of equity are inclined to hold railway companies to a strict coniphance with the terms and condi- tions 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 from constructing its road upon the streets of an incorporated city without the assent of the corporate authorities, and where 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 ' Cross 10. Mayor etc., 3 C. E. Green, 305 ; Tainter New Albany etc. v. O'Daily, 13 Ind. 551. » Coats V. Clarence etc., 1 Euss. & M. 181. •i Jarden «. Philadelphia etc., 3 Whart. 503. ^30 iNJimCTiOHS. [cJHAP. vm. equity will not entertain jurisdiction to restrain it from collecting its tolls until the proper repairs are made, but will leave the party complaining to avail himself of his legal remedy. 1 § 411. A court of chancery may, it would seem, restrain the commission of an act which is likely to result in irrepara- ble injury to an individual or to be prejudicial to the public, pending proceedings before the proper tribunal to determine as to the authority to commit 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. ^ § 412. The unauthorized extension by a railway company of its track is the attempted exercise of a valuable franchise, and is of itself sufficient ground for a perpetual injunction. ^ But where a road has been properly discontinued, the forcible reopening thereof and removal of fences necessary in reopen- ing it will not aiithorize a court of equity in interfering. Such acts are regarded as mere trespasses for which the law affords ample relief and they will not be enjoined in equity.* § 413. It may sometimes happen from the peculiar circum- stances of a particular case that an injury, ordinarily^ suscepti- ble of relief at law, is so irreparable in its character as to require the interposition of the strong arm of equity for its prevention. Thus, where it is alleged in the bill that com- plainant'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 cultivation, an injunction will issue. Under such circumstances the relief is extended on the ground that the injury, being irreparable in its character and of con- ' Commonwealtli v. "Wellsboro' etc., 35 Pa. St. 152. » Williamson v. Carnan, 1 Gill. & J. 184. 2 People V. Third Avenue etc., 45 Barb. 63. " Nichols V. Sutton, 22 Geo. 369. CHAP. Vm.] HIGHWAYS Am) EAILEOADS. 231 tinning duration, can not be remedied by an action at law for damages.! § 414. Equity will sometimes interfere with the construc- tion 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 railway track and grounds acquired for engine hcuses and other like uses of the railway. Tlie land having been acquired for specific purposes, an injunction is regarded as the proper remedy to secure its quiet enjoyment. ^ § 415. The authority of the body granting permission for the construction 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 construction of a street railway and its operation for an indefinite period of time, the construction of the ' road may properly be enjoined.' § 416. Under the authority of equity to interfere for the prevention of irreparable mischief, a railway company may be enjoined from planting trees so close to one's land as to over- shadow it and to cause the roots to spring up to the damage of the soil.* And where a statute provides that in the construction of levees over private property a just com- pensation shall be paid to the owners for damages thereby incurred, an injunction may properly issue to stay proceedings until the damages have been ascertained and paid according to law. 5 § 417. From the peculiar nature of works of public improvement and the serious injury that may result from any unwarranted interference with their construction, the jurisdic- ' Champion «. Sessions, 1 Nev. 478. 'Albany etc. v. Brownell, 24 N. T. 345; Mohawk etc. v. Artcher, 6 Paige, 87. « Milhau V. Sharp, 27 N. T. 611. * Brock V. Connecticut etc., 35 Vt. 373. » Horton v. Hoyt, 11 Iowa, 496. 232 m J UNCTIONS. [chat. \-in. tion in restraint of such -svorks is exercised with, great caution, keeping constantly in^view tlie damage that may result from improperly restraining their operation. Except in cases of peculiar hardship an injunction should not be granted against the construction of a public work before the coming in of the answer, since the granting of an injunction upon every expavte bill which might be presented would place such works at the mercy of every landed proprietor through whose premises they pass.i § 418. Where a railway 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 pro- vided will not prevent a court ef equity from entertaining jurisdiction of the matter if the statutory remedy is inade- quate. ^ And where the course pursued by the carrier is such as to greatly injure if not destroy the business of complainants, and damages at law would afford no just compensation for the injury, an injunction is the proper remedy.^ JSTor 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.* ' Elmslie v. Delaware etc., 4 Whart. 424. And see Delaware etc. tj. Raritan etc., 1 McCart. 445. ' Vincent i). Chicago etc., 49 111. 33. »Id. 'Id. CHAP. IX.J WA3IE. 233 OHAPTEE IX. OF INJUNCTIONS TO STAY WASTE. I. Origin and Natube op the Jumsdiction. II. Destruction of Timber. III. Equitable Waste. IV. Parties. V. Special Acts op Waste. I. Oeigin and NAtuiie of the JuEiSDionoN. § 419. The jurisdiction of recent origin; remedy at common law. 420. Distinction between waste and trespass. 431. Complainant must sliow good title ; facts must be alleged. 423. Injunction in aid of the legal right; title must he established -il law. 433. Insolvency of defendants in possession. 424. Adverse possession; use of land in ordinary manner not enjoined pending action to try title. 425. Not essential that actual waste should have been committed. § 419. The jurisdiction of equity in restraining the com- mission of waste is of comparatively recent origin and rests upon the necessity of preventing irremediable injury. At common law the mode of proceeding was by writ of prohibi- tion issuing out of the Court of Chancery, which, if ineffectual, 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, though it was afterward extended, by statute, to other persons, i The wiit of estrepe- ' Jefferson v. Bishop of Durham, 1 Bos. & Pull. 120. 234 iNjuNcmojss. [chap. n. mem was also a common law writ, whose purpose was the stayiiig of waste in any action real, after judgment and before possession delivered. Its use, however, did not, at common law, extend to the ease of waste committed by the tenant, pendente lite, and it was not until the statute ot Gloucester! that its use was enlarged to meet the case of waste pending the suit. 2 The writ of estrepement being confined to actions real, it became necessary, in cases of ejectment, to apply to equity to supply the deficiencies of the common law by restraining waste pending 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. ^ § i20. The distinction between waste and trespass consists in the former being the abuse or the destructive use of prop- erty 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, therefore, that when plaintifiT recovers a general judg- ment in his action at law, the writ will be made perpetual.^ § 421. It may be laid down as a general rule that equity will not restrain waste except upon unquestioned evidence of complainant's title, and where defendant is in possession, linder adverse title, the relief will be refused." Nor will an ' 6 Edw. I. Ch. 13. 2 3 Black. Com. 237, 338. ' 2 Story's Eq. § 911, and oases cited ; 3 Black. Com. 227, 228. " Hill V. Bowie, 1 Bland, 593. «Id. " Pillsworth D. Hopton, 6 Ves. 51 ; Davies «. Leo, lb. 784 ; Poindexter d. Henderson, Walk. Miss. 177 ; Nevitt ». Gillespie, 1 How. Miss. 108. " I do not recollect," says Lord Eldon in Pillswortli «. Hopton, " tliat the court has ever granted an injunction against waste undei; any such circumstances: the defendant in possession: the tenants having attorned: the plaintiff having failed in his ejectment: both setting up pretenses of title. I remember perfectly being told from the bench very early in my life, that if the plaintiff filed a bill for an account, and an injunction to restrain waste, stating that the defendant claimed by a title adverse to his, he CHAP. IX.] WASTE. 235 injunction 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 irre- parable 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 pecu- niary 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 interfere.* § 422. The jurisdiction of equity in cases of waste is not in derogation of th6 jurisdiction 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 establish his title at law. And on an applica- tion for an injunction, defendant being in exclusive possession, under colorable title, equity will not sustain the legal estate in the absence of proceedings at law to try the title of '.'omplainant.^ And where an injimction has been granted, stated himself out of court as to the injunction." The reporter adds: " His Lordship having inquired if the bar knew any instance, and none being produced, would not make the order." But see, contra, Shuhrick v. Guerard, 3 Dcsaus. Eq. 616, note. ' Hamilton «. Ely, 4 Gill, 34; Amelung v. Seekamp, 9 Gill & J. 468. ' Bogey 11. Shute, 1 Jones Eq. 180. 3 Cockey b. Carroll, 4 Md. Ch. 344; Amelung v. Seekamp, 9 Gill & J. 468. •* Pillsworth V. Hopton, 6 Ves. 51 ; Field v. Jackson, Dickens, 599 ; Storm V. Mann, 4 Johns. Ch. 31. ' Bogey V. Shute, 4 Jones Eq. 174. In this case an injunction was sought ou the ground of the insolvency of the defendant and injury to the sub- stance of the estate by acts in the nature of destructive waste. The court, Kuffln, J., say: " Such a bill can not he sustained against one in exclu- sive possession — claiming, colorably at least, the absolute estate, until the plaintiff has established liis title at law — or, at all events, an injunction can be granted only when the plaintiff is endeavoring to establish his title at law, and until he should have a reasonable time allowed for that pur- pose. For, the court of equity acts in such cases, not as superseding the jurisdiction of the courts of law over a legal title, but only in aid of a legal remedy, defective, because dilatory." 336 iNJirNCTiONS. [chat. ix. tlie title being in dispute, it will be dissolved, no action at law having been undertaken to try tbe title. ^ Nor will tbe injunc- tion be retained on the ground that one of the defendants has brought an action of trespass quare clausum against com- plainant to determine the legal title, since that is purely a legal question. 2 § 423. Eut it has been held sufficient to sustain a bill for an injunction to stay waste and prevent the removal of improvements, that the bill alleges that complainant is the owner and entitled to the possession of the premises, with the improvements, and that defendants are in possession and threaten to destroy the improvements, and that they are insol- vent and unable to respond in pecuniary damages.^ § 424. Where reliance is had upon adverse possession to waiTant 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 existence of a superior title, such possession, regardless of its duration, will not be held adverse, and equity will not interfere.* And pending an action of ejectment to try the title, defendant will not be restrained from using the land in the ordinary course of agi'iculture, and clearing off timber and erecting buildings for that ptirpose.^ § 425. To warrant the interference it is not essential that actual and serious waste should have been already committed.' Though in general equity will only interfere to prevent future waste where complainant is remediless at law, or where a discovery is necessary. ' And where the waste is trivial eqidty wiU not interfere unless an intention to commit further waste be shown.* But if it can be shown that an intention exists to ' Brown b. Polwell, 3 Halst. Cli. 593. « Wright B. Grist, 1 Bust. Eq. 303. " Meadow Valley etc. ®. Dodds, 6 Nev. 361. * Dean t>. Brown, 28 Md. 11. • Thompson «. Williams, 1 Jones Eq. 176. « Gibson «. Smith, 2 kX\. 182. ' Winship ®. Pitts, 3 Paige, 259. 8Coffln«. Coffin, Jac. 71. CH.U'. li.] WASTE. 237 commit waste, or that threats of its commission have been maily, the court may interfere, i II. Desteuction of Timber. ? 436. When equity may enjoin the cutting and removal of timber. 427. Preliminary steps sufficient ground for interference. 438. Irreparable injury must be shown; injunction not granted as to timber already cut. 439. Injunction not allowed for past injuries, nor where deftendants claim both title and possession. 430. Special cases. 431. Tendency to a more liberal use of the writ; but not allowed in case of disputed title. § 426. 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 !it law to try disputed titles, the cutting and removal of timber will be enjoined where such timber constitutes the chief value of the land, and where it is shown that defendant would be unable to respond in damages. ^ So where com- plainant avers title in himself and has brought an action of forcible entry, defendant being in possession of the premises, aTi injunction may be allowed to prevent defendant from cutting timber.s And where both parties claim title, the cutting of timber has been restrained on the principle of biUs quia tvmet^ Nor is it necessary that there should be an actual TAs pendeTis 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. ^ ' Gibson V. Smith, 3 Atk. 183; Coffin t). Coffin, Jac. 71. = Kinsler 'b. Clarke, 3 Hill Ch. 617. ^ Hicks ©. Michael, 15 Cal. 107. * Peak v. Hayden, 8 Bush, 135. 6 Kane ®. Vanderburg, 1 Johns. Ch. 11. Kent, Chancellor, in delivering the opinion, says: " Chancery goes greater lengtlis than the courts of law in staying waste. It is a wholesome jurisdiction, to be liberally exercised in the prevention of irreparable injury, and depends on mucli latitude of 238 rajuNCiioNS. [chap. ix. § 427. Althougli defendant denies any intention of cutting timber upon tlie 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 allowed, since it is not necessary that waste should have been actually committed to warrant a court of equity in interfering, i § 4-28. Where an injunction is soiight 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. ^ And an inj auction 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 Ke.* ISTor will defendant who is in possession of laud under a contract of purchase be restrained from cutting timber, unless it should be continued to such an extent a§ to render the land insufficient security for the payment of the purchase money. ^ § 429. The province of an injunction being preventive rather than remedial, it will not be used to restrain past discretion in the court. The tenant for life is here suffering injury to his own interest, and he, by his tenants, is doing great injury to the inherit- ance, which it is his duty to prevent. He is bound to stop the mischief, or be responsible himself. To suppose that an ejectment must be actually commenced before the injunction can issue is certainly an error. This would be placing the operation of waste beyond the reach of control during the period of the six month's notice." In this case the bill stated that notices to quit had already been served on defendants and that ejectment would be brought. The court held the notice equivalent to the commencement of an adverse proceeding to try the title at law, and sufficient to bring the case within the spu'it of the ruling in Lathrcip «. Marsh, 5 Ves. 259. ' Jackson v. Cator, 5 Ves. 688. ' Green ». Keen, 4 Md. 98. ' Cowley B. Wellesley, 1 L. K. Eq. 658. * Van Wyck ■!). AUiger, 6 Barb. 607 ; Watson «. Hunter, 5 Johns. Ch. 169 ' Van Wyck v. Alliger, supra. uuAi: rx.J WASTE. 239 injuries, and where it does not appear that future waste is j tkreatened, the relief will be withheld. > And where defend- ants claim both title and possession, 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 irreparable injury, and denies the inability of defendants to respond in pecuniary damages, the injunction will be dissolved.^ § 430. Equity will not stay waste at the suit of one who ' Southard v. Morris etc., Saxt. 518 ; Watson v. Hunter, 5 Jolins. Cla. 169. This was a bill filed by the owner of the fee against a_ten.ant 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 authorities, says : " This court will stay the commission of waste, or the transfer of negotiable paper, in certain cases, in order to prevent 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 ordinary demands, and it is not an impend- ing and special mischief, which will justify this extraordinary preventive remedy by injunction. If the injunction could be ordinarily applied to waste already committed, I apprehend we should very rarely hear of a special action 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 extraordinary 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 ordinary cases like the present. I shall accordingly confine the injunction to the timber standing or growing at the time of the service of process." See also Smith v. 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. 537 ; Packington «. Packing, ton, a Atk. 315. ' Shreve b. Black, 3 Green Ch. 177. • Shreve v. Black, 3 Green Ch. 177. Pennington, Chancellor, says : " My embarrassment is not so much about the title as about the possession. When this is claimed by the defendant, as well as the title, and that too in connection with the title, what right has the court to interfere ? To enjoin both parties until a trial is had must result in tying up all unimproved lands, about which there is any dispute, from being enjoyed by their owners." * Kerlin v. West, 3 Green Ch. 449. 240 iNJUNcnoNS. [chap. rx. lias failed to recover damages at law after several suits against tte 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 constitutes the chief value of the land.* On proof, however, of complainant's want of title, the injunc- tion will be dissolved, notwithstanding the pendency of his action at law for the trespass in cutting timber.* § 431. Although the tendency of courts of equity is to a more liberal use of the writ of injunction 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 timber upon pine lands, valuable chiefly for the wood, is not such a case of irreparable mischief as to warrant the injunction, where defendant sets up an adverse claim to a part of the land, and the title and real ownership are in doubt." But the cutting of fruit trees growing in a garden or orchard is held to be waste and destructive of the inheritance.* ' West V. Page, 1 Stockt. 119. ' Duvall V. Waters, 1 Bland, 569. « Tlxniston v. Mustin, 3 Crancli C. C. 335. ♦ Westcott B. GiflFord, 1 Halst. Cli. 24. • West v. Walker, 2 Green Cli. 279, and notes. And see Cornelius s. Post, 1 Stockt. 196. « Littler v. Thompson, 2 Beav. 129. OHAP. K.] WASTE. 241 III. Equitable "WAsrE. § 433. Definition of equitable waste. 433. Ornamental timber ; intention of devisor to govern. 434. Nice distinctions as to ornamental timber ; question one of fact. 485. Destruction of young timber constitutes equitable waste. 436. Injunction not granted where legal relief is the main object of the action. 487. Trust and contingent estates. § 432. Equitable waste is defined to consist of sucli acts as are not considered waste at law, being consistent with the legal rights of the party committing them, but which are deemed waste in equity on account of their manifest injury to the inheritance.! j^ other words, it is an unconscientious or unreasonable exercise of a legal right, for which the law pro- vides 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 injures or destroys build- ings, he will be restrained, though the remainder-man is absolutely remediless at law. '^ And the fact that the power is being exercised in an unreasonable manner and against conscience is sufficient to warrant the interference." So, too, ' 2 Story's Eq. § 915. ' Turner v. Wright, 2 DeG. T. & J. 334, 345. ' Hawley v. Clowes, 2 Johns. Oh. 133. * Abraham v. Bubb, 3 Freem. Chy. 53. » Vane «. Barnard, 1 Salk. 161, 3 Vern. 738; Clement ». Wheeler, 25 N. H 360; Packington v. Packington, 3 Atk. 315; Strathmore v. Bowes, 3 Bra C. C. 88. « Aston v. Aston, 1 Ves. 264; Marker v. M lf5 242 INJUNCTIONS. [caiAP. it. the assignee of the tenant for , life without impeachment of waste, will be restrained, i § 433. The cutting of timber planted for ornament of the premises seems to come within the definition of equitable waste above given, ^ and tenant in tail, after possibility of issue extinct, will be restrained from such acts of waste. ^ The pre- sumed 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 j)lanted 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 protected.^ But the inter- ference is confined to trees of an ornamental 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.'' § 434. Mee distinctions have sometimes been drawn as 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 accordance with the presumed will and intention of the person by whom the ' Clement v. Wheeler, 35 N. H. 361. " Downsliire v. Sandys, 6 Ves. 107 ; Wombwell v. Bellasyse, lb. 110, note ; Surges «. Lamb, 16 Ves. 185. ' Surges V. Lamb, 16 Ves. 185 ; Day v. Merry, 16 Ves. 375. * Wombwell v. Bellasyse, 6 Ves. 110, note; Downsliire v. Sandys, lb. 107; Mabon v. Stanhope, 3 Madd. 538 ; Marker v. Marker, 9 Hare 1. " Aston V. Aston, 1 Ves. 265 ; Tamworth «. Ferrers, 6 Ves. 419 ; Down- shire «. Sandys, lb. 107 ; Day v. Merry, 16 Ves. 375. « Halliwell v. Philipps, 4 Jur. N. S. 608. ' •B. Copley, 3 Madd. 535, note. * Williams «. McNamara, 8 Ves. 70. , CHAP. IX.] wASflm. 248 power -was created, and not according to the opinions of the court. 1 § 435. 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.^ And 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.* § 436. "We have already seen that equity will restrain the conunission of waste by the tenant where the rights of the party aggrieved are merely equitable rights, and where no action at law could be maintained against the tenant. ^ 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 injunction will not be granted, since the object of his action is to secure legal and not equitable relief.' § 437. It is said that the jurisdiction will be more readily exercised in the case of a trust estate.'' So equity will inter- fere to prevent waste to the injury of a contingent estate, or an executory devise, depending upon a legal estate. ^ And an heir, who talies by resulting trust, is within the principle of ' Marker «. Marker, 9 Hare, 1. ' Aston v. Aston, 1 Ves. 265 ; Peirs o. Pairs, lb. 631 ; Tamworth. v. Ferrers, 6 Ves. 419 ; Hole i). Thomas, 7 Ves. 589. » Hole V. Thomas, 7 Ves. 589. < Id. ; Brydges «. Stephens, 6 Madd. 279. ' See § 433, ante; Perrot v. Perrot, 3 Atk. 94; Robinson «. Litton, lb. 210; Farrant v. Lovel, lb. 733; Garth v. Cotton, 1 Vea. 656. « G-illett V. Treganza, 13 Wis. 472. Though it would seem that if the proceedings were addressed by the equitable owner to the equity powers of the court, asking its aid to stay waste, or injuries affecting the freehold, it might be granted by virtue of the general powers of a court of equity Id. ' Robinson v. Litton, 3 Atk. 210 ; Stansfleld v. Habergham, 10 Ves. 377. 6 Story's Eq. § 914; Stansfleld v. Habergham, 10 Ves. 377. 244 INJUKCTIONS. [chap. IX. equitable waste until the happening of the contrngeney.i But as between tenants 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. ^ IV. Parties. § 438. General rule as to parties. 439. Grounds of danger must be shoTm. 440. Devisee for life ; removal of building ; under-lessee. 441. Crops. 443. Sub-lessee, when enjoined. 443. Joint tenants, tenants in common and coparceners. 444. Mortgagor in possession may be restrained from committing waste. 445. Principle on whicli the interference is based. 446. Same rule applicable to mortgages of chattels. 447. Mortgagor who sells equity of redemption can not enjoin waste. § 438. While there are many cases where parties commit- ting waste may be restrained by injunction, even though dis- punishable 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 exercised 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 sufficient 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 from killing timber preparatory to cultivating the soil, and from cutting wood for sale." ' Stansfield v. Habergham, 10 Ves. 277. « Hole V. Thomas, 7 Ves. 589. ' 3 Story's Eq. § 918. * Loudon 1). Warfleld, 5 J. J. Marsh. 196. » Sarles v. Sarles, 8 Sandf. Ch. 601. • Dickinson «. Jones, 36 Geo. 97. CHAP. rX.J WAOTE. 245 § 439. The tenant for life will not be restrained from the removal of personal property unless good ground be shown for apprehending that there is danger of its removal. ^ And the fears and apprehensions of the remainder-man are not sufficient to authorize the injunction, but the facts must be shown which constitute the danger of the removal. ^ § 440. A devisee for life may be restrained by the owner in fee from the cutting down of timber other than that neces- sary 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 restrain an under-lessee from the commission of waste. ^ § 441. A tenant from year to year may be enjoined from removing crops, straw and manure, 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.' ' § 442. 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." So, too, the lessor may restrain his lessee, or those claiming under him or acting by his authority, from convert- ing the demised premises to uses repugnant to the terms of the lease,' and from making material alterations, as by ' Clagon 1). Veasey, 7 Ired. Eq. 175. " Lehman ». Logan, 7 Ired. Eq. 296. ° Smitli V. Poyas, 3 Desaus. Eq. 65. * Perrine v. Marsden, 34 Oal. 14. = Parrant v. Lovel, 3 Atk. 723. « Pulteney v. Shelton, 5 Ves. 147; Onslow v. , 16 Ves. 173; Pratt v. Brett, 2 Madd. 63. ' Pratt V. Brett, supra. 8 Baugher v. Crane, 27 Md. 36. 9 Steward v. "Winters, 4 Sandf. Ch. 687. 246 iNjinstCTioirs. [chap. rx. changing a building rented for a post office into a beer hall,' or a dwelling into a warehouse. ^ § 443. As a general rule equity will not interfere to restrain waste as between joint tenants, tenants in common, or copar- ceners, since their right is equal in the use and enjoyment of the estate.^ It is otherwise, however, if the defendant be insolvent and incapable 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 cutting growing timber not necessary to carry on farming operations, the relief will be granted.^ So, too, if one of the parties occupies as a tenant to the other, equity may interfere.' But tenants 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.' § 444. Again, equity will restrain the commission of waste on behalf of one whose rights are only equitable, and who would be remediless by the strict rules of law. The most frequent instance of the exercise of the jurisdiction in such cases is in restraining waste by the mortgagor in possession of mortgaged premises. The mortgagor in possession, though he may exercise all acts of ownership, even to the extent of committing waste which does not impair the security," will nevertheless be restrained from such acts as depreciate the value of the premises and render the security insufficient.' ' Maddox v. Wiite, 4 Md. 73. ' Douglass «. "Wiggins, 1 Jolins. Cli. 435. » Goodwyn v. Spray, Dick. 667; Hole v. Thomas, 7 Ves. 589. * Smallman v. Onions, 3 Bro. C. C. 620. ' Hawley v. Clowes, 3 Jolins. Oh. 133. « Twart «. Twart, 16 Ves. 138. ' Hilm V. Peck, 18 Cal. 640. 8 Kekewich v. Marker, 3 Mac. & G. 339. 'Encign «. Colburn, 11 Paige, 503; Gray v. Baldwin, 8 Blackf. 164; Bunker v. Locke, 15 Wis. 635; Maryland v. ISTorthern etc., 18 Md. 193; Brown «, Stewart, 1 Md. Oh. 87. In Brown «. Stewart it is said that, " It would certainly be falling short of the demands of justice and the exi- gency of the case if this court, when the remedy Is sought exclusively here, (in equity,) has not the power in a proper case to protect the subject of the controversy from desti'uction while the suit is depending." In King CHAP, rx.] WASTE. 247 Especially is tMs tlie case where tlie mortgagor has been declared a bankrupt, and his property has vested in an assignee. 1 And if necessary the injunction will be allowed before the mortgage is due.^ § 445. The principle upon which the interference is based as against a mortgagor in possession is twofold : first, the right of the mortgagee to his whole security unimpaired during the life of the mortgage j^ and, second, that as between mortgagor and mortgagee the latter is considered in equity as the owner of the fee, and as such entitled to the interference of the court.* But the relief will not be withheld even where the mortgagee is not considered the owner of the fee. ^ And where the mortgage is treated merely as a security for the debt, the injunction is allowed to prevent the destruction of the security. ' So equity will enjoin the commission of waste by the mortgagor in possession even after forfeiture has occurred on his part, and after the right to proceed at law has accrued.'' But, if adequate damages can be recovered at law for the injury committed, and it is not alleged that defendants are insolvent, relief in equity Avill be refused. ^ § 44:6. The same principles apply to mortgages of chattels, and equity will interfere to restrain waste committed by the mortgagor in possession after default, since the mortgagee is not bound to take possession of the property by process of ®. Smitli, 2 Hare, 344,'Wigi'am, Vice Chancellor, thus defines the term " suffi- cient security": "I think the question which must be tried is, whether the property the mortgagee takes as as a security is sufficient in this sense — that the security is worth so much more than the money advanced — that the act of cutting timber is not to be considered as substantially impairing the value, which was the basis of the contract between the parties at the time it was entered into." ' Ensign v. Colburn, 11 Paige, 503. ' Murdock's Case, 2 Bland, 461 ; Salmon v. Clagett, 3 Bland, 125. » Nelson etc. v. Pinegar, 30 111. 4*73. * Nelson etc. 'o. Pinegar, 30 III. 473 ; Robinson «. Litton, 3 Atk. 209. ' Brady e. "Waldron, 2 Johns. Ch. 148. » Cooper V. Davis, 15 Conn. 561 ; Murdock's Case, 2 Bland, 461 ; Salmon 0. Clagett, 3 Bland, 125. ' Maryland v. Northern etc., 18 Md. 193. ' Eobinson v. Russell, 24 Cal. 467. 24:8 INJtINOXIONS. [chap. IX. law, but may elect to seek his remedy in equity. ^ And the jurisdiction may be exercised before the mortgagee is entitled to proceed at law for the recovery of his debt.^ § 447. Where complainant, after mortgaging his premises, has sold the equity of redemption without taking security as an indemnity against his bond, he has no interest in the land sufficient to warrant an injunction, nor will it be granted on the ground that the property may be insufficient to satisfy the mortgage, and that he will be held liable for the balance.^ And where complainant has parted with all his interest, and holds the title merely as security for the payment of the money due him, he stands in the situation of a mortgagee out of possession, and will not be allowed to restrain the cutting of timber unless it is shown that the security is being impaired.* V. Special Acts of "Waste. g 448. Defendants acting for public benefit will not be enjoined; tempo, rary administrator. 449. Dissolution. 450. Quarrying, when enjoined. 451. No injunction, no account. 452. Exceptions to the rule ; mines and collieries. 453. Past waste no ground for the relief; no action at law necessary ; attaching creditor. 454. Sale of lands staid by military order. 455. Purchaser under decree ; removal of mineral deposits. . 456. Coal mines. 457. Especial diligence requisite in case of mines. § 448. Where defendants are acting in good faith and for the public benefit, under a charter of incorporation from the state, so long as they do not exceed their corporate powers, ' Parsons i>. Hughes, 13 Md. 1. « Clagett v. Salmon, 5 Gill & J. 314. ' Brumley v. Fanning, 1 Johns. Ch. 601. * Scott 1). Wharton, 3 Hen. &. M. 35. OHAP. IX.J WAffTE. 249 they will not be enjoined, even though they are committing great and lasting injury to complainant's estate. i ISTor will the relief be allowed against a temporary administrator on the ground of the insolvency of his surety, since the remedy at law is ample by compelling the giving of sufficient security. ^ § 449. An injunction granted to stay waste pending an action of ejectment at law will be dissolved on denial of com- plainant's title, especially if he is negligent in trying the title at law.^ So if the facts do not show privity of title, or irre- mediable injury, the injunction will be dissolved.* And one who has neither privity of estate nor possession, and who has neither established his title at law nor brought ejectment to try the title, is not entitled to an injunction. ^ § 450. "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 injunction will not be contimied where the answer denies that the quarry- ing impairs the value of the premises. " But where defend- ant's interest in a quarry and his right to work it 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.^ § 461. It is a well established principle of equity juris- prudence 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 multiplicity of suits as well as to afford complete redress, without compelling ' Scudder i>. Trenton etc., Saxt. 694. " Montgomery v. Walker, 36 Geo. 515. ' Higgins ■». Woodward, Hopk. 343. < Georges etc. v. Detmold, 1 Md. Ch. 371. ' Blackwood v. Van Vleet, 11 Mich. 252. 6 Vervalen ®. Older, 4 Halat. Ch. 98. ' Ackerman v. Hartley, 4 Halst. Oh. 476. * Smith «. City of Rome, 19 Geo. 89. But in this case the coTirt would seem to have gone heyond the authority of the adjudicated oases in saying that " an injunction to stay waste has become almost a matter of course." 250 iN,TirNcrrioNS. [chap. rs. a resort to law.i 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.^ And an account for waste committed is considered as a necessary inci- dent of the relief against future waste. ^ And an injunction being refused, as a general rule no account will be allowed for waste already committed.* § 452. 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 account 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 injunction will lie.' And a tenant in common of a mine is entitled to an account of the profits. 8 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 ' Jesus College «. Bloom, 3 Atk. 263 ; Ackermaa v. Hartley, 4 Halst. Oil. 476. ' Jesus College v. Bloom, 3 Atk. 263. ^ Ackerman r. Hartley, 4 Halst. Ch. 476. * Crockett «. Crockett, 2 Ohio St. 180, affirming the maxim, "no injunc- tion, no account," announced by Lord Brougham in Parrott v. Palmer, 8 Myl. & K. 633. ' Garth «. Cotton, 3 Atk. 751 ; Parrott v. Palmer, 3 Myl. & E. 632. " Lansdowne «. Lansdowne, 1 Madd. 116 ; Morris «. Morris, 3 DeG. & J. 333. ' Winchester v. Knight, 1 P. Wms. 406; Story v. Windsor, 3 Atk. .630; Pulteney v. Warren, 6 Ves. 89. And in Parrott v. Palmer, 3 Myl. & K. 633, Lord Brougham, after reviewing the English cases, observes: "Prom the ■whole it may be collected that although, as to timber, there exists consider- able discrepancy, yet the sound rule is to make the account the incident and not the principal, where there is a remedy at law ; but that mines are to be otherwise considered, and that, as to them, the party may have an account even in cases where no injunction would lie." 8 Bently ®. Bates, 4 T. & 0. 182. " Martyn ii. Knowllys, 8 T. R. 145. CHAP. rX.] WASTE. 251 wHcli will disentitle complainant to relief by injunction may prevent Ms obtaining an account, even in cases of mines. ^ § 453. Wbere tbere is no claim of right to commit acts amounting to waste, and no intention to commit such acts, an injunction should not be granted merely because the tenant in possession had, at some previous time, committed waste.^ Though the jurisdiction was originally confined to cases where it was sought to restrain waste pendente lite, it has long since been extended to cases where no action at law is pending. ^ And an attaching creditor is entitled to the relief for the pro- tection of the estate which he has attached to satisfy his debt, the jurisdiction resting, as we have already seen in the case of mortgages, upon the necessity of preventing the security from being diminished or impaired.* But he who seeks the aid of ' Parrott b. Palmer, 3 Myl. & K. 633. ' Crockett ». Crockett, 2 Ohio St. 180. 'Denny^B. Brunson, 29 Pa. St. 883. And in this case it is held that where the authority of the court to issue injunctions is derived from a statute extending its jurisdiction to the prevention or restraining of " acts contrary to law and prejudicial to the interests of the community, or the rights of individuals," the court may enjoin the commission of waste. * Camp V. Bates, 11 Conn. 51. In this case defendant being otherwise insolvent, complainant attached his real estate to secure an indebtedness upon a promissory note. 'Williams, Ch. J., says: "The case in principle seems much like that of a mortgage. In both cases the land is appropri- ated as security 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 chancery have the same power to prevent waste upon this property in the one case as well as the other ? If it is done in the one case, that the security given by the party should not be destroyed, it should be done in the other, that the security given by the law should not be destroyed. Siirely the law must be as anxious to guard its own enact- ments, as the provisions of the parties themselves." Referring to the objection that complainant was not entitled to the injunction since he was not in possession of the property, the court further say : " Here, from the nature of the case, no actual possession of the property could be obtained 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 admit- ted. The property 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 262 rajuNonoNS. [chap. h. equity for the prevention of waste should use due diligence in making the application. ^ § 454:. "Where the sale of lands levied upon under execution has been staid by military order, and waste is being com- mitted, it is competent for a court of equity to interfere for the prevention of the waste. ^ And in such case the fact that, pending the proceedings for the injunction, the military order ceases to have effect, does not impair the jurisdiction of equity by injunction. 3 § 455. A purchaser of real estate under a decree, who has not paid the purchase money, may be enjoined from commit- ting waste, although not a party to the proceedings in which the decree wa^ rendered.* And a tenant 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, complainant's right to the mineral substances having been established by a verdict at law in an action against the same defendant. ^ § 456. 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 mistake 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.* § 457. "While diligence 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 itself; and being so, the law must proteet those who are reposing upon its care." ' Barry u. Bariy, 1 Jac. & W. 651. 2 Webh V. Boyle, 63 N. C. 371. »Id. * Oa?amajor ■». Strode, 1 Sim. & Stu. 381. " Thomas i). Jones, 1 Y. & C. 510. ' Vontworth v. Turner, 3 Ves. 4. CHAP. DC.] WASTE. 253 nature of the property, i And where 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 and allowed defendants to expend large sums of money in developing the mines, without objection, he wiU nof be allowed an injunction. ^ ' Norway v. Eowe, 19 Ves. 159 ; Parrott ». Palmer, 3 Myl. & K. 632. "Parrott v. Palmer, 3 Myl. & K. 633. "If there be anything well established in this court," says Lord Brougham In this case, "it is that a man who lies by, while he sees another person expend his capital and bestow his labor upon any work, without giving to that person notice, or attempting to interrupt him — one who thus acquiesces in proceedings inconsistent with his own claims — when he comes to enforce those claims in this court, shall in vain ask for its interposition by an injunction, of which the effect would be to render all the expense useless, which he voluntarily suffered to be incurred. Here more years have been allowed to elapse than the number of weeks which would have closed the doors against the plaintiff coming to seek an injunction." 254 iNjTjifcnoNS. [chap, x. CHAPTEE X. OF INJUNCTIONS AGAINST TRESPASS. I. GrBNEEAIi FbATDHES OF THE JUMSDICTION. II. CuTTma Timber. [II. Trespass to Mlnes. IV. Special Acts op Trespass. I. General Featuees oe the Jueisdiction. § 158. Origin of the jui'iscliotion; possession and title. 159. General rule ; exceptions. ■160. Two conditions necessary. 461. Requisites of the bill. 462. Distinction as to articles of use and of luxury. § 458. The granting of injunctione against tlie commission of trespass seems to liave grown out of the jurisdiction in cases of waste, to which the relief was formerly confined. Privity of title being the essential ground of the interference in restraint of waste, it was not until a very recent period that the rule was relaxed to admit of the relief against a naked trespass, unaccompanied with privity of title. ^ Where the party aggrieved is out of possession, equity will only interfere ' Moore v. Ferrell, 1 Geo. 7. The earliest case is known as Flamang's Case, cited in 6 Ves. 147, 7 Ves. 308, and 8 Ves. 90, in which Lord Thurlow granted the relief with reluctance against a trespasser who was working into minerals on complainant's close and thus impairing the substance of the estate. The relief was based solely upon the irreparable injury that would result from a continuation of the trespass. The same principle was afterward recognized and followed by Lord Eldon. See Mitchell v. Dors, 6 Ves. 147. OaAV. K.] TEESPASS. 255 on tlie ground of fraud or collusion, or that the trespass threatened would be destructive of the estate. ^ And if the title be denied or in doubt, the injunction will generally be refused against a defendant in possession, until the title is established at law.^ Though in a strong case of irreparable mischief the rule has been departed from.^ And where the party aggrieved is in possession he will be allowed to restrain such trespasses as would result in irreparable damage in the event of refusing the relief.* § 459. The general principle underlying all the authorities upon the subject of injunction against trespass is, that where the remedy at law is ample, equity will not interfere. ^ An exception, however, is recognized where the equitable owner of the property injured is under some disability which would prevent the enforcement of the legal remedy, as where ' Neale v. Cripps, 4 Kay & J. 108 ; Fingal «. Blake, 3 Mol. 50, 543 ; Lloyd V. Trimleston, lb. 81. « Perry u. Parker, 1 Woodb. & M. S80; Hart«. Mayor etc., 3 Paige, 313; Chesapeake etc. i>. Young, 3 Md. 480. ' Burnley v. Cook, 13 Tex. 586. And U has been held, though upon what grounds it is difficult to conjecture consistently with the general rule as stated in the text, that the denial of complainant's title by the answer will not suffice to dissolve the injunction. Moore v. Ferrell, 1 Geo. 7. ■• Lowndes ®. Settle, 33 L. J. Ch. 451. In this case complainant and his ancestors had been in possession during a period of eighty years, and defendant, who claimed as heir at law, sought to enter and exercise acts of ownership by cutting sods and timber. The injunction was granted upon the principle stated in the text. The distinctions resting upon the question of possession are very clearly set forth by Kindersley, Vice Chancellor, as follows: "Where, therefore, the plaintiff is in possession, and the person doing the acts complained of is an utter stranger, not claiming under color of right, the tendency of the court is not to grant an injunction, unless there are special circumstances, but to leave the plaintiff to his remedy at law, though where the acts tend to the destruction of the estate, the court will grant it. But where the party in possession seeks to restrain one who claims by adverse title, there the tendency will be to grant the injunction, at least where the acts done either did or might tend to the destruction of the estate." And see Hart V. Mayor etc., 3 Paige, 313. ' Cooper V. Hamilton, 8 Blackf. 377; Smith «. Smith, 4 Jones Eq. 303; Gause «. Perkins, 3 Jones Bq. 177 ; Stevens v. Beekman, 1 Johns. Ch. 318. 256 iNjDNCTnoMS. [chap. X. property is bequeathed to a feme covert as lier separate estate, witliotit the intervention of a trustee, the legal estate thereby vesting in the husband. In such case equity will restrain the sale of the property under execution against the husband. ' The necessity of preventing a multiplicity of suits affords another exception to the rule, and will warrant the interposi- tion of the strong, arm of equity, even though there be s 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 have no application to a repetition of the same trespass by one and the same person, the case being susceptible of compensation in damages.' § 460. To warrant the interference of equity in restraint of trespass, two conditions must co-exist: first, complainant's title > must be established by legal adjudication; 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.^ I^or will equity interfere to restrain a tres- passer simply because he is a trespasser, but only because the injury threatened is ruinous 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 only be tempo- rary until the title can be determined at law.'' § 461. It is not sufiicient that the bill contains mere general averments of irreparable mischief, but the facts eonsti- ' Smith B. Smith, 4 Jones Eq. 303. 2 Coit v. Horn, 1 Sandf. Ch. 1 ; Hatcher «. Hampton, 7 Geo. 50 ; Nut- brown «. Thornton, 10 Ves. 159. " Hatcher v. Hampton, 7 Geo. 50. * Gause -o. Perkins, 3 Jones Bq. 177 ; Schurmeier e. St. Paul etc., 8 Minn. 113. 'Weigel B.Walsh, 45 Mo. 560; Bethune «. Wilkins, 8 Geo. 118; Van- winkle V. Curtis, 3 Green Ch. 432; Shipley ». Ritter, 7 Md. 408; Foster, at, .pwrte, 11 Ark. 304; Ross v. Page, 6 Ohio, 166. ' Echelkamp v. Schrader, 45 Mo. 505 ; Mayor etc. v. Groshon, 30 Md. 436. 'Id. OHAP. X.] ' , TEESPASS. 257 tuting siicli miseliief sliould be set fortli.i And in the absence of any allegations that the trespass is a continuing one, or is likely to-be continued, the injunction will be withheld.^ 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 possession.* § 462. A distinction has been taken between trespasses consisting 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 can be had at law for their removal, and equity wiU not interfere.^ So where defendant threatens to tear down and remove a portion of complainant's dwelling, which he alleges is built on his own land, the injury is so irreparable as to warrant an injunction. ' II. CnTTING TiMBEE. § 463. A strong case of destruction or of irreparable mischief must bo made out. 464. Cutting of all tlie wood on premises may be enjoined. 465. Rule as to timber already cut. 466. Possession coupled witb title. 467. Fruit trees and ornamental shrubbery; insolvency; value of prop- erty. § 463. Though the modern doctrine of courts of equity in restraining trespass is, as we have seen, more liberal than the ancient, yet a strong case of destruction or irreparable mischief ' White V. Flannigain, 1 Md. 535; Waldron v. Marsh, 5 Cal. 119; Car- lisle V. Stevenson, 8 Md. Ch. 499. ' Coker v. Simpson, 7 Cal. 340. ' Vanwinkle v. Curtis, 3 Green Ch. 433. ■* Witmer's Appeal, 45 Pa. St. 455. » Clark's Appeal,. 62 Pa. St. 447. ' " DeVeney v. Gallagher, 5 C. E. Green, 33. . 17 258 INJDNCnONS. [ofap. X. • 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 premises is disputed, as between the devisee and an heir at law, constitutes an eifectual bar to the granting of an injunction against the cutting of timber. ^ 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. 2 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 defend- ants are insolvent.^ 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 cut- ting timber for staves, the land being valuable only for this pur pose, will not warrant the relief in the absence of any allegatior of defendant's insolvency, since the remedy at law is ample." § 464. But the destruction of all the timber on complain- ant'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 property in the manner in which he has been accustomed to enjoy 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 > Smith V. Collyer, 8 Ves. 89. ' West V. Walker, 2 Green Oh. 379. ' Cowles V. Shaw, 2 Iowa, 496. • * Cornelius v. Post, 1 Stockt. 196. ' Woods ®. Kirkland, 2 La. An. 337. ' Qause i). Perkins, 8 Jones Eq. 177. ' Davis V. Keed, 14 Md. 152. «Id. CHAP. X.J TEESPAffl. 259 the interference. 1 Thougli il' complainant is in poBsession, ■with adequate remedy at law for the cutting of his timber, equity will not interfere.^ § 465. 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 "timber which had been cut before he obtained his patent.' § 466. "While equity will not restrain the commission of a trespass upon realty unless the right be 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, wiU authorize the relief as against a mere trespasser without color of right.* ' De la Croix v. Villere, 11 La. An. 39. ' Stevens n. Beekman, 1 Johns. Oh. 318. This was a bill to restrain defendants from cutting timber, their only claim .of title being from the plaintiff in an action of ejectment pending and undetermined. 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 trespasses of this kind are daily and hourly occurring. I doubt exceedingly whether this extension of the ordinary jurisdiction of the court would be productive of public convenience. Such cases are generally of local cognizance, and drawing them into this court would be very expensive and otherwise inconvenient. Lord 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 dis- pute about the right. Lord Thurlow had great diflBculty as to injunctions for trespass ; and, though Lord Eldon thought it surprising that the juris- diction by injunction was taken so freely in waste and not in trespass, yet he proceeded with the utmost caution and diflOldence, and only allowed the writ in solitary cases of a special nature, and where irreparable damage might be the consequence if the act continued." ' Peck «. Brown, 6 Nev. 81. * Gause v. Perkins, 3 Jones Eq. 177 ; Schurmeier v. St. Paul etc., 8 Minn. 113 ' Falls etc. v. Tibbetts, 31 Conn. 165. 260 iNJUNcnoNS. [cseiap. x. § 467. The destruction of fruit trees and ornamental shrubbery is an injury to the realty so irreparable in its nature that equity will interfere. ^ ITor does it make any difference whether the trees were planted by the owner for shade or ornament, or whether they were so situated naturally as to serve this purpose. ^ And it is not necessary in a bill filed to restrain trespass to the realty to allege absolute insol- vency of the defendant, but it will suffice that such facts appear as show that a judgment for damages would be entirely worth- less. ^ And the jurisdiction of the court in this class of cases does not depend upon the value of the property destroyed, but on the question whether its destruction would materially impair the enjoyment of the property as held and occupied at the time of the commission of the trespass.* III. . Trespass to Mines. g 468. Greater latitude in cases of mines. 469. Complainant's title ; removal of ore ; expenditures by defendant. 470. Title must be established at law. 471. Flowing of refuse matter may be enjoined; wben perpetual injunc- tion should be awarded. 473. Working througli into another's mine; digging ore on public land. § 468. In the case of trespass to miping property greater latitude is allowed courts of equity than in restraining ordinary trespasses to realty, since the injury goes to the immediate destruction of the minerals which constitute the chief value of this species of property. "Where, therefore, the trespass consists in the removal of ore from complainants' mines, the legal title being clearly established in complainants, they are entitled to ' Daubenspeck «. Grear, 18 Oal. 443. ' Shipley v. Ritter, 7 Md. 408. ' Hicks V. Compton, 18 Gal. 206. * Shipley s. Bitter, 7 Md. 408. OELil". X.J TRESPASS. 261 an injunction, even thoupjli an action at law would lie.* And althougli 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. 2 § 469. "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 substance of the estate. 3 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.^ If, however, defendants have been in possession for a 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.^ JSTor will defendants be enjoined from an alleged ' Merced etc. v. Fremont, 7 Cal. 317; Andersou v. Harvey, 10 Grat. 386. This was a bill for an, injunction to restrain the removal of ore from com- plainant's mines. Daniel, J., pronouncing the opinion of the court, says : " The practice of courts of equity of interfering in such cases by way of injunction, is one comparatively of recent origin; but the jurisdiction is now fully recognized and well established by cases both in England and America. Mitchell «. Dors, 6 Ves. R. 147 ; Hanson u. Gardiner, 7 Ves. R. 305; Thomas v. Oakley, 18 Ves. B. 184; 8 Daniel's Ch. Pr. 1681-3; Stevens ®. Beekman, 1 John. Ch. R. 318 ; Jerome «. Ross, 7 John. Ch. R. 315 ; Smith B. Pettingill, 15 Verm. B. 84. The land upon which the trespass is alleged to be committed is proved to be of litQe or no value except for the iron ore found on it, which is proved to be of an excellent 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 appel. lant that the value of the ore per load could be readily estimated, does not deprive a court of equity of its right to interfere in the case by way ol injunction. The same might be shovra 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 prevention 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." = Fremont v. Merced etc., McAl. C. C. 367. ' United States «. Parrott, McAl. C. 0. 371, and cases cited. *Id. " Real etc. v. Pond etc., 33 Cal. 83. 262 XNJTOICTIONS. [chap. X. trespass, resulting from their preparations for mining coal, in whieli complainant has allowed them to proceed for two years, and to expend considerable sums of money, without objection, i § 470. The jurisdiction in restraint of trespass to mines is not an original jurisdiction of equity, under which the court would be justiiied in trying the title to the mines themselves, and the party aggrieved must therefore first establish his title at law, or show satisfactory reason for not doing so.^ It is not necessary, however, that the owner should have actually estab- lished 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 posses- sion 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.^ § 471. 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 owners.* And if the answer admits the entry and working of complainant's mine, but denies his title, upon satisfactory proof of his title a per- petual injunction should be awarded. ^ § 472. 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 tres- pass as will warrant the interference of equity in behalf of the government.'' ' Birmingliain etc. v. Lloyd, 18 Ves. S15. " Irwin D. Davidson, 3 Ired. Bq. 811. ' West Point etc. ■». Reymert, 45 N. Y. 703. * Logan 1). DriscoU, 19 Cal. 633. « McLaugMin v. Kelly, 23 Cal. 311. « Mitchell ■!). Dors, 6 Ves. 147. Says Lord Eldon : " That is trespass, not ■waste. But I will grant the inj unction upon the authority of a case before Lord Thurlow; a person, landlord of two closes, had let one to a tenant, who took coal out of that close, and also out of the other, which was not demised; and the diflSculty was, whether the injunction should go as to both ; and it was ordered as to both." ' United States v. Gear, 3 How. 131. CHAP. Xj TEKSFASS. 263 IV. Special Aois of Trespass. , g 473. Possession ; multiplicity of suits. 474. Removal of asphaltum ; landing of passengers ; dissolution. 475. Insolvency; continued act. 476. Of fences, ditclies, etc. 477. Distinction between structures before and after completion. 478. Mandatory injunctions, wlien allowed in cases of trespass. 479. Effect of covenants in lease ; limited riglit of quarrying. 480. Trespass against harbor rights. 481. Trespass upon a common. 483. Injunctions not allowed to restrain forcible entry and detainer. 483. Ko injunction allowed where remedy at law is ample. 484. Trespass to church property. § 473. Equity will not restrain interference with complain- ant's possession of his premises when the indirect effect of the injunction would be to reinstate complainant in possession, the remedy at law being ample. ^ But a trespass which, from ,its long continuance, has grown into a nuisance, may be enjoined to prevent multiplicity of suits. ^ § 474. The removal of asphaltum from complainant's land, thus depriving him of a part of his inheritance, which can not be replaced, affords ground for an injunction. ^ But the land- ing of passengers 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. ^ § 475. Insolvency of the trespasser affords additional ground for the interference, since his inability to respond in > Akrill 1). Selden, 1 Barb. 816. " Mitchell V. Dors, 6 Ves. 147 ; Hanson c. Gardiner, 7 Ves. 305. ' More i>. Massini, 32 Cal. 590. * New York etc. ■». Fitch, 1 Paige, 97. • Stewart d. Chew, 3 Bland, 440. 264: iNjtnsrcrnoNS. [chap. x. damages renders tlie remedy at law ineffectual.* And an act which, in itself, might not result in serious damage, may, from its continuance, constitute a trespass, resulting in irre- parable injury.^ § 476. The erection of a wooden fence on part of com- plainant's premises is not productive of such serious conse- quences as to wai'rant an injunction.^ Nor will the court interfere where the act complained of consists in permitting a ditch to remain out of repair, whereby water percolates through the bank and floods complainant's meadow, since ample remedy can be had at law.* And upon the same pria- ciple the throwing np of mud and earth on complainant's land will not be enjoined. ^ § 477. Where the trespass complained of consists in the erection of buildings upon complainant's land, a distinction is taken between the buildings when in an incomplete and when in a finished state. And while the jurisdiction is freely exer- cised before the completion of the structures,^ yet if they have been completed the relief wiU generally be withheld, and the person aggrieved will be left to his remedy by ejectment.^ But if the conduct of defendants in the construction of the obnoxious works has been fraudulent and oppressive, causing serious injury to complainants and preventing their enjoy- ment of their property in its original condition, equity may interpose.^ § 478. Though the jurisdiction of equity by mandatory injunction to compel the restoration of matters m statu quo is sparingly exercised, since, if the trespass consists in the erection of structures, the remedy by ejectment is plain, ^ yet ' Musselman i). Marquis, 1 Bush. 463. ' Hopkins i>. Caddick, 18 L. T. 336. » Herr v. Bierbower, 3 Md. Ch. 456. * Carlisle v. Stevenson, 3 Md. C.h. 499. ' Mulvany v. Kennedy, 26 Pa. St. 44. « Farrow ii. Vansittart, 1 Rail. 0. 603. ' Deere v. Guest, 1 Myl. & Cr. 516 ; Moreland ». Rioliardson, 22 Beav. 604. 8 Powell i>. Aiken, 4 Kay & J. 343 ; Bowser v. Maclean, 2 De Gex, F. & J. 415. ' Deere v. Guest, 1 Myl. & Cr. 516 ; Moreland «. Richardson, 32 Beav. 604. OHAP. X.] TEESPASS. 265 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 restrained by mandatory injunction from allowing a sewer to remain open.^ And the manager of a business has been enjoined from excluding the owner of the business from the premises. ^ So, too, a mandatory injunction has been granted to prevent defendant from allowing a build- ing to remain on the roof of complainant's house which he had erected there.* But the relief will not be allowed to compel the rebuilding of a wall which has been overthrown, the remedy being deemed ample at law.^ § 479. A lease containing covenants to repair, and at the end of the term to surrender the buildings in good condition, constitutes 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 exceeding 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.'' § 480. A foreign corporation may be restrained from taking possession 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 on behalf of the people. ^ § 481. Where one's interest in a common has become extinguished, he Avill not be allowed to become a trespasser ' Martyr i>. Lawrence, 3 DeGex, J. & S. 261 ; Eoljinson «. Byron, 1 Bro. C. C. 588; Great etc. v. Clarence etc., 1 Coll. 507; Powell v. Aiken, 4 Kay & J. 343. ' Manchester etc. v. Worksop etc., 23 Beav. 209. 8 Eaclius «. Moss, 14 W. E. 337. ■* Martyr ii. Lawrence, 3 De Gex, J. & S. 261. » Doran v. Carroll, 11 Ir. Ch. 379. » Mayor etc. «. Heclger, 18 Ves. 355. ' Thomas v. Oakley, 18 Ves. 184. 8 People etc. i>. Central R. R. 48 Barb. 478. 266 DfjuNCTiONS. [chap. X. upon the rigMs of others in the common, and, an injunction may issue to prevent him from so doing, i § 482. 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 folly adequate to such a case,^ § 483. Equity will not depart from the well-settled rule of leaving the parties to their remedy at law for acts of trespass committed on lands, unless there are some special circum- stances set up in the bill, and where 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, where the erection is capable of being readily removed.* 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. ^ § 484. Trustees of a church may enjoin pretended trustees • Bell V. Ohio etc., 25 Pa. St., 161. ' "Wangelin o. Goe, 50 111. 459. ' Wilsou 1). Hughell, Morris, Iowa, 461. * Schurmeier v. St. Paul etc., 8 Minn. 113. "> Jerome v. Ross, 7 Jolins. Oh., 815. In this case canal commissioners being authorized by statute to enter upon any lands contiguous to the canals, and to dig for stone and other materials necessary for the prosecu- tion of their work, dug up and removed stone from a ledge of rock on complainant's premises, who thereupon filed a bill for an injunction. Kent, Chancellor, in finally disposing of the case, says : " The objection to the injunction, in cases of private trespass, except under very special circumstances, is, that it would be productive of public inconvenience, by drawing cases of ordinary trespass within the cognizance of equity, and by calling forth, upon all occasions, its power to punish by attachment, fine and imprisonment, for a further commission of trespass, instead of the more gentle common law remedy by action and the assessment of damages by a jury. In ordinary cases this latter remedy has been found amply sufficient for the protection of property; and I do not think it advisable, upon any principle of justice or policy, to introduce the chancery remedy as its substitute, except in strong and aggravated instances of trespass, which go to the destruction of the inheritance, or where the mischief is remediless." OHAF. X.J TRESPASS. 267 from intermeddling witli the cliurcli property where the tres- pass goes to the destruction of the property in the character in which it was enjoyed. ^ And upon satisfactorily estab- lishing the legal right and its violation, a perpetual injunction will generally be awarded against a trespass. ^ ' Trustees etc. «. Hoessli, 13 "Wis. 348. Complainants, being trustees of an incorporated religious society, asked a perpetual injunction against certain parties pretending to be trustees to restrain tbem from intermed- dling with the church property. It was held on demurrer that the action was properly brought by the trustees in their oflacial 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., observes : " The general rule undoubtedly is, that in cases of private trespass an injunc- tion would not be granted, for the reason that the aggrieved party has an adequate common-law remedy by action where proper damages could be assessed by a jury. In ordinary cases this was found to be sufficient for the protection of property. ' But in cases of a peculiar nature, where the mischief was irremediable, which damages coiild not compensate, or where the injury reached to the very substance and value of the estate, and went to the destruction of it in the character in which it was enjoyed,' then courts of equity would grant an injunction to prevent the injury complained of. Beatty ». Kurtz, 2 Peters, 566, Jerome v. Boss, 7 Johns Ch. 315, Varick v. Mayor, etc., i lb. 53. Now it must be admitted 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." ' McLaughlin v. Kelly, 23 Cal. 211; Imperial etc. v. Broadbent, 7 II. L. 612 ; Lowndes «. Settle, 33 L. J. Ch. 451. 268 mjuHcmoNS. [chap. xi. CHAPTEE XI. OF INJUNCTIOlsrS AGAINST NUISANCE. I. Gkoottds of the Jtirisdiction. II. Ntjisancbs to Btttldings. III. NmsAircBs to Watbk. IV. Public Nuisances. "V. EoADs AND Railways. VI. Bkidgbs. VII. Special Nuisances. I. GeOTJITOS of the JlXEISDICrnON. § 485. Foundation for the relief; jurisdiction closely allied to that in trespass; distinction. 486. Eight should be first established at law; injury must be irreparable. 487. Injunction not allowed where questions in dispute are pending in action at law. 488. Relief not granted against an uncertain or contingent nuisance. 489. Writ not allowed in first instance where it is uncertain whether structure will prove a nuisance. § 485. The foundation for the interference of equity in restraint of nuisances rests in the necessity of preventing 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 trespass and nuisance consists in the former being a direct infringement of one^s rights of property, while in the latter case the infringement is the result of an act which is not wi'ongful 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 commission of CHAP. 33.] NDISAJXCE. 269 an act beyond the limits of the property affected, i And the injury must be such as is not susceptible of adequate pecuniary compensation in damages, or one the continuance of which would cause a constantly recurring grievauce.^ § 486. The concurrent jurisdiction of courts of equity, by the writ of injunction, with courts of law in cases of jjrivate nuisance is ancient and well-established. ^ To warrant 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 restrain a private nuisance should have first established his right at law, and where the right is doubtful and has not been established, the relief will be withheld. ^ Thus, where complainant has failed to obtain judgment against defendants in an action at law for ' Eeynolds v. Clarke, 3 Ld. Baym. 1899 ; 'Weston «. 'Woodcock, 5 M. & W. 587. ' New York «. Mapes, 6 Johns. Cli. 46 ; Mohawk s. Artclier, 6 Paige, 83 ; Dana v. 'Valentine, 5 Met. 8. 5 Gardner v. Newburgh, 3 Johns. Oh. 163 ■* Van Bergen v. "Van Bergen, 3 Johns. Ch. 383 ; Porter v. Witham, 17 Maine, 393. » Mayor etc. ■». Curtiss, Clarke Ch. 886 ; Khea v. Forsyth, 87 Pa. St. 503 ; Arnold «. Klepper, 34 Mo. 378 ; Porter «. "Witham, 17 Maine, 393; Mam- moth etc. Co.'s Appeal, 54 Pa. St. 188 ; Van Bergen v. Van Bergen, 3 Johns. Ch. 383; McCord «. Iker, 13 Ohio, 887. In the latter case. Bead, J., observes : " The ground upon which the interference of a court of equity is invoked, is that the mischief 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, unless 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 established, beyond doubt, at law." The rule, however, requiring the right to be first established at law is to be understood as applying only to cases where the right is itself doubtful or in dispute. See § 516, post, and cases cited. 270 iNjxrNcnioNS. [chap. xi. the nuisance, and legal proceedings are still pending, the injunction will he denied. ^ The rule, however, is limited to cases, where the right is doubtful or is actually in dispute.^ And where defendant's right to erect the structure complained of as a nuisance is in dispute, and is not clearly established at law, the court will not interfere. ^ So, too, if it does not appear that the person aggrieved was without adequate remedy at law, the relief will not be granted.* Nor will equity interfere where the injury is of a trifling or merely nominal character. ^ Though an injury, slight in itself, may by frequent recurrence assume such proportions as to warrant the interference of equity.*^ To warrant the exercise of the jurisdiction 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.'' § 487. 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.' § 488. Where the injury complained of is not, jpef se, a nuisance, but may or may not become so, according to circum- ' Durant v. 'Williamsoii, 3 Halst. Ch. 547. ' White v. Forbes, Walk. Mich. 112. " Irwin V. Dixion, 9 How. 10. * Parker v. Winnipiseogee etc., 3 Black, 545. ' McCord V. Iker, 13 Ohio, 387 ; Attorney General v. Sheffield etc., 3 De Gex, M. & Q. 304; Swaine v. Great etc., 33 L. J. Ch. 399. « Ooulson V. White, 3 Atk. 21 ; Attorney General v. Sheffield etc., 3 De Gex, M. & G. 304. ' Fort V. Groves, 29 Md. 188. 8 Eastman v. Amoskeag etc., 47 N. H. 71. 'Id. CHAP. XI. J NtnaiuoB. 271 stances, and wliere it is uncertain, indefinite or contingent, or productive of only possible injury, equity will not interfere. * ' Klrkman v. Handy, 11 Humph. 408 ; Laughlin v. PreBident etc., 6 Ind. 223; Dunning «. Aurora, 40 111. 481 ; Lake View ». Letz, 44 111. 81 ; Gwin ■B. Melmoth, Freem. Ch. 505 ; Thebaut v. Canova, 11 Fla. 143 ; Rhodes v. Dunbar, 57 Pa. St. 274; Simpson v. Justice, 8 Ired. Eq. 115 ; Mohawk etc. ■». Utica etc., 6 Paige, 554. This 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 of complainant's bridge by damming up the ice. Walworth, Chancellor, says : " The prin- ciples 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 Kep. Temp. Brougham, 343). 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 waiting for the result of a trial. But where the thing sought to be restrained is not in itself noxious, but only something which may according to circumstances prove to be so, the court will refuse to interfere until the matter has been tried at law by an action ; though in particular cases the court may direct an issue, for its own satisfaction, where an action could not be brought in such a form as to meet the question." And in the Earl of Ripon «. Hobart, 8 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 mischief without waiting for the result of a trial ; and will, according to the cir- cumstances, direct an Issue or allow an action, and, if need be, expedite the proceedings, the injunction being in the meantime continued. But, where the thing sought to be restrained is not unavoidably and in itself noxious, 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 distinction between the two kinds of erection 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 possi- bly be prejudicial to none. The great fitness of pausing much before we interrupt mtn 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 exercised, and has at various times found great reluc- tance on the part of the learned judges to use it, even in cases where the 272 INJUNCTIONS. [chap. XI. Thus, tlie erection of a wharf, i a railroad bridge,^ a planing niiU,^ a livery stable,* or a turpentine distillery,^ will not be enjoined where the injury is only a possible and contingent one. So, too, the relief will be withheld where the benefit to the public to be derived from the existence of the thing com- plained 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.'' It is also held that complainant must show that the act from which he seeks relief is illegal, before equity will interfere. 8 § 489. Where an injunction is asked to restrain the con- struction of works of such a nature that it is impossible for the coTirt to know, until they are completed and in operation, whether they vsdll or vsdll not constitute a nuisance, the writ will be refused in the first instance.* Nor 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. 1" thing or the act complained of was admitted to be directly and immedi- ately hurtful to the complainant. All that has been said in the cases where this unwillingness has appeared, may be referred to in support of the proposition which I have stated ; as in the Attorney Q-eneral v. Niohol, 16 Ves. 338; Attorney General «. Cleaver, 18 Ves. 311; 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 produced of the interposition by injunction in the case of what we have been regarding as eventual or contingent nuisance." ' Laughlin v. President etc., 6 Ind. 323. • Mohawk etc. ii. TJtica etc., 6 Paige, 554. ' Rhodes v. Dunbar, 57 Pa. St. 374. ^ Kirkman v. Handy, 11 Humph. 406. ■• Simpson v. Justice, 8 Ired. Bq. 115. ' Attorney General •». Perkins, 3 Dev. Bq. 88 ; Same «. Lea's Heirs, 3 Ired. Eq. 302; Wilder v. Strickland, 3 Jones Bq. 386. ' Mayor etc. v Ourtiss, Clarke Ch. 336. ' Bruce v. President etc., 19 Barb. 371. ' Haines v. Taylor, 3 Ph. 309. '«Id. OHAP. 2a.J MUIBAHCE. 273 II. NuisAuoEs TO Buildings. § 490. General rule. 491. Peril to liealtli a ground for relief. 493. Cattle yards, when a nuisance. 493. Manufacture of gas, when enjoined. 494. Delay fatal to the relief; period of delay. 495. Great caution exercised in restraining works of public convenience. 496. Effect of injury to surrounding property. 497. Dissolution. 498. Belief allowed where damages can not he adjusted at law. 499. Alterations in dwellings, when enjoined; party walls. 500. Of the parties to the bill. § 490. The most frequent instance of nuisances of a strictly private nature occurs in the erection of structures obnoxious or hurtful to buildings used for residence and business pur- poses. The law may be regarded as settled, that when a business, though lawful in itself, becomes obnoxious to neigh- boring dwellings and renders their enjoyment uncomfortable, whether by smoke, cinders, noise, offensive odors, or otherwise, the carrying on of such business is a nuisance which equity win restrain.! j^or is it necessary that the nuisance be inju- rious to health to warrant the interference,^ but mere noise wiU, in a proper case, suffice to justify a court of equity ia interfering, 5 and the relief has been granted against the ringing of bells in such manner as to annoy a neighboring resident.* 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. 5 ' Ross u. Butler, 4 C. E. Green, 294 ; Cleveland v. Citizens etc., 5 C. B. Green, 301 ; Babcock v. New Jersey etc., lb. 396. And see Attorney Gen- eral v. Steward, lb. 415. ' Ross V. Butler, 4 C. E. Green, 294 » White V. Cohen, 1 Drew. 313. * Soltau V. DeHeld, 2 Sim. N. S. 133. » Ross V. Butler, 4 C. E. Green, 294 18 274 iNJTiNcrnoNS. [chaf. xi. § 491. Where loss of health, destruction of business, and irreparable injury to property will result from the obnoxious erection, 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, i or the erection of a chandlery, ^ or of a slaughter house, ^ or of a livery stable,* if so near a residence as to imperil the comfort and health of its inmates, will be enjoined. And mere smoke or disagreeable odors, though not noxious, may be a sufficient ground for the interference of equity.^ § 492. The smell or stench arising from the keeping of live hogs in cattle yards in such numbers and for such length of time as to affect the health "or comfort of surrounding resi- dents, is a nuisance which equity will enjoin.' And permit- ting blood and other offal from such animals to run into the waters of a bay may also be enjoined as a nuisance.' § 493. The manufacture of gas in such manner as to produce serious annoyance to persons dwelling in adjoining houses, whether by smoke, gases, efi&uvia, or odors that may issue from the works, is such a nuisance as to warrant the interposition of a court of equity by injunction. ^ But the erection of buildings which are to be used for the manufacture of the gas, will not necessarily be enjoined before it is demon- strated that the works will be conducted in siich manner as to cause substantial discomfort.' ' Fuselier v. Spalding, 2 La. An. 773 ; Waltei; v. Selfe, 4 Eng. L. & B. 15. ' Howard v. Lee, 3 Sandf. 281. • Peck V. Elder, 3 Sandf. 126 ; Hex v. Cross, 3 Car. & P. 484. < Coker v. Birge, 9 Geo. 435 ; Same v. Same, 10 Geo. 336. » Crump V. Lambert, L. E. 3 Eq. 409, 17 L. T. N. S. 133. • Babcock «. New Jersey etc., 5 C. fi. Green, 396. ' Id. And see Attorney General v. Steward, 5 0. E. Green, 415. • Cleveland v. Citizens etc., 5 C. E. Green, 301. " Id. This was a bill for an injunction to restrain the erection of gas works in such close proximity to complainants' residences as to render them uncomfortable. The general principles guiding courts of equity in administering relief in this class of cases are well laid down by Zabriskie, Ch., as follows : " Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance that should be restrained ; and smoke, noise and CHAP. XI.] NinSANCE. 276 § 494. He who seeks relief against a nuisance must show due diligence in the assertion of his rights ; and where com- plainant 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 position ft-om which their own laches has bad odors, even when not injurious to health, may render a dwelling so uncomfortable, as to drive ftom it any one not compelled by poverty to remain. Unpleasant odors, from the very constitution of our nature, render us uncomfortable, and when continued or repeated, 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 interference with our neighbor in the comfortable 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 depend upon taste or imagination. But whatever is offensive physically to the senses, and by such oflfensiveness makes life uncomfortable, is a nuisance ; and it is not the less so, because there may be persons whose habits and occupations have brought them to endure 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 constituted. The law knows no distinction 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 inconvenience. The complainants have houses built, and held for the purpose of residences, by families of means and respect- ability, and anything that by producing physical discomfort would render them unfit for such residences, or drive such families from them, is a nuisance, 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, uncomfortable : not whether men accustomed to follow their ' occupations 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." ' Parker v. Winnipiseogee etc., S Black, 545 ; Tichenor v. Wilson, 4 Halst. Ch. 197; Dana v. Valentine, 5 Met. 8; Weller v. Smeaton, 1 Cox, 103; Eeid a. Gifford, 6 Johns. Ch. 19; Southard v. Morris etc., Saxt. 518. 276 rNJUNcnoNs. [chap. xi. debarred tliem.* 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 interfere, but will leave the parties to seek their remedy at law.^ And it has frequently been decided that where the works complained of had been allowed to stand three years and upward, it was such laches as woiild prevent relief in equity. ^ § 495. Great caution is exercised in interfering with establishments and erections Tvhich tend to promote public convenience, as in the case of mills, and in such cases it wiU not suffice to show a probable or contingent injury, but it must be shown to be inevitable and undoubted.* And where a statute provides ample remedy at law for the damages incurred, the injunction will not be allowed. ^ § 496. 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,^ nor that it would increase the rate of insiirance on surrounding buildings.'' So, too, equity will not interfere in behalf of the owners of vacant lots to enjoin the carrying on of a soap factory, on the ground that it prevents the lots from being built upon and diminishes their value, since the proper ' Southard «. Mori'is etc., Saxt. 518. Defendants at great expense had erected a dam and works, which had continued for several years without molestation from complainant. The water having been temijorarily drawn off and defendants being about to raise it to its former height, complainant sought an injunction to prevent them from so doing. The relief was refused upon the principles stated in the text. ' Dana d. Valentine, 5 Met. 8. » Weller v. Smeaton, 1 Cox, 102; Eeid t. Gifford, 6 Johns. Ch. 19; Tiche- nor V. Wilson, 4 Halst. Ch. 197. * Barnes n. Calhoun, 3 Ired. Eq. 199 ; Attorney General v. Perkins, 2 Dcv. Eq. 38. 5 Barnes «. Calhoun, 2 Ired. Eq. 199. « Rhodes «. Dunbar, 57 Pa. St. 274. 'Id. CHAP. Xl.] HUISANCaS. 277 remedy is by an action at law to recover damages for the diminished value of the property, i § 497. 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 dissolu- tion of the injunction. 2 Eut, if upon 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. * § 498. Kelief by 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 niiisance. ^ And it is held that a bill to enjoin the erection of a nuisance in close proximity to complainant's buildings, which contains allegations of irre- parable 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." § 499. Lessees of a building who have rented upon repre- sentations to the lessor that they desired the building for a private dwelling, may be enjoined from altering it in such ' Dana v. Valentine, 5 Met. 8. " Coker ». Birge, 9 Geo. 425. , ' Mygatt v. Goetoliins, 20 Geo. 350 ; Cunningham «. Rice, 28 Geo. 30. < Thebaut v. Canova, 11 Fla. 143. ' Cunningham «. Rome etc., 27 Geo. 499. « Aldrich ®. Howard, 7 R. I. 87. And in Porter «. "Witham, 17 Maine, 293, it is held that, unless comiDlainant's right has heen established at law, he must show a long and uninterrupted user to warrant the interposition of equity. But the weight of authority would seem to be against this position. 278 rajTJNcnoNS. [chap. xi. manner as to carry on the business of coach making, the house being in danger of falling from 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. 2 So where party walls are required by law to be of solid brick or stone, without openings, the erection by a lot owner of a party wall containing windows constitutes such a nuisance as comes within the restraining powers of equity and it will be enjoined.^ § 500. As regards the parties who may bring the action to restrain a nuisance to buildings, as a general rule the person occupying the premises should be made complainant with the owner, though the action may be brought in the name of the owner alone.* And in the case of nuisance to a dwelling house, the injunction will be made mandatory if the circum- stances of the case require it.^ 1 Bonnett o,. Sadler, 14 Ves. 526. ' Mayor etc. v. Bolt, 5 Ves. 129. In this case certain old houses in London were about to he pulled down in making improvements in the city, and defendant had stored in them large quantities of sugar, so that two of the houses had actually fallen and others were in great danger. Defendant was enjoined from further using the buildings as storehouses. » Vollmer's Appeal, 61 Pa. St. 118. * Sutton V. Montfort, 4 Sim. 559; Jackson «. Newcastle, 33 L. J. Ch. 698. » Gale V. Abbott, 8 Jur. N. S. 987; Hervey v. Smith, 1 Kay. & J. 392. OHAl'. 33.] NUISAHCE. 2T9 III. Nthsanges to Water. § 501. Foundation of the jurisdiction. 503. Tlie jurisdiction ancient and well established. 503. Where injury is difficult of estimation injunction allowed; diversiun of water. ' 504. In general right should be established at law. 505. Party's own negligence a bar to relief. 50G. Owner will be protected in quality as well as quantity of water. 507. Adverse possession may bar relief. 508. Limitations upon the rule ; laches. 509. Surface water ; subterranean streams. 510. Construction of levee, when enjoined. 511. Alterations in navigable streams. 512. Mandatory injunctions against nuisance. 513. Filling up of a stream may be enjoined. 514. Mill dams. 515. Tenants in common of mill privileges. 516. Mere value of mill property no test ; limitation upon rule requiring right to be established at law. 517. Wasting water ; destruction of mill dam. 518. Irreparable damage a condition of the relief. § 501. 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 protect. This right or interest being common to all owners of land adjacent to a stream, no proprietor can, in the absence of a right to exclusive enjoy- ment, 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 change its quality, or diminish 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 ' Webb V. Portland etc., 3 Samner, 189 ; Bealey v. Shaw, 6 East, 208 ; Mason «. HiU, 5 B & A. 1. 280 iNJUNcrnoNS. [chap, xl the water is such as to cause a substantial injury to other proprietors in their common right. ^ § 502. The jurisdiction 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, permanent 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 interruption of that right tending to the great injury of the person aggrieyed, equity will interfere.* § 503. Where the extent of the injuries 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 stream, are entitled to the aid of equity to prevent a diversion 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 subjected to heavy expense if compelled to restore the water to its original channel, present such objections as would warrant a court of equity in refusing the rehef.' And where one owns land on both sides of a stream not navigable, and never declared a pubhc highway, he is 1 Tyler v. Wilkinson, 4 Mas. 397. ' Gardner v. Newburgh, 3 Jolins. Ch. 163, and cases cited. ' Lyon 1). McLaughlin, 33 Vt. 433. * Gardner v. Newburgh, 3 Johns. Ch. 163, and cases cited. ' Lyon 1). McLaughlin, 33 Vt. 483. The court say : " Wlien the invasion of a right in this kind of property is threatened and intended, which is necessarily to be continuing and operate prospectively and indefinitely, and the extent of the injurious consequences is contingent and doubtful of estimation, the writ of injunction is not only permissible, but is the most appropriate means of remedy. It affords in fact the only adequate and sure remedy. The very doubtfulness as to the extent of the prospec- tive injury and the impossibility of ascertaining the measure of just reparation render such an injury irreparable in the sense of the law relating to this subject." « Corning e. Troy etc., 34 Barb. 485 ; Same «. Same, 89 Barb. 311 . Tuolumne etc. v. Chapman, 8 Cal. 392. OHAP. XI.] NDISAWOE. 281 entitled to an injunction to restrain the floating of logs down his stream to the injury of his dam.i § 504. In general it must be made to appear that complain- ant's right to enjoy the land has been satisfactorily established at law.^ And where this does not appear, and it is not alleged that there is danger of irreparable mischief or of injury not susceptible of compensation in a suit at law, the bill is obnox- ious 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, constitutes a sufficient ground for an injunc- tion.* But the construction of an artificial channel which merely has the effect of giving a 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.^ § 505. "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 complainants have not used due diligence in the assertion of their rights, and have for a long period allowed defendants to erect and operate their works without objection, an injunction will be refused, especially where the injury complained of can be compensated in damages at law, and the granting of the relief would inflict serious injury upon defendants without doing any practical good to complainants.* § 506. The right of the owner of the realty through which a stream of water flows to the uninterrupted use and enjoy- ' Curtis V. Keesler, 14 Barb. 511. " Coe V. Winnipiseogee etc., 37 K. H. 255 ; Weller v. Smeaton, 1 Cox, 103. But see, contra, Corning v. Troy etc., 40 IT. Y. 191 ; Morris etc. «. Central etc., 1 C. E. Green, 419. ' Coe B. Winnipiseogee etc., 37 N. H. 255. But it is held that complain- ant need not first establish his title at law where the averments of his rights are admitted by demurrer. Tuolumne etc. v. Chapman, 8 Cal. 893. * Wright V. Moore, 38 Ala. 598. » Potier's Ex'rs. «. Burden, 38 Ala. 651. • Wood 11. Sutcliffe, 3 Sim. N. S. 163. 282 BSJUNCTioxs. [chap. si. ment of the stream, extends to the quality as well as to the quantity of the v/ater.' Hence any use of the water which operates to destroy health or diminish the comfort of a riparian owner will be enjoined as a constantly recurring injury, irre- parable in its nature and not susceptible of adequate compen- sation in damages.^ But it is to be observed that past injuries afford no ground for the relief, and where it does not certainly appear that the diversion of the water will be repeated, or that there is danger of its being repeated, to the injury of complainant, the injunction will not be allowed.* § 507. Adverse possession and exercise of the right of diverting the water for twenty years, is suflicient to raise a presumption, of a grant and defeat complainant's right to an injunction against a private nuisance.* And this upon the principle that as twenty years possession gives rise to a pre- sumption of a grant, so a non-user for that length of time will put an end to the presumption. ^ But the extent of the prescriptive right must be limited by the actual enjoyment and must be commensurate 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.'' § 508. 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 " Bealey v. Shaw, 6 East, 208. ' Holsman v. Boiling etc., 1 McCart, 335 ; Lewis v. Stein, 16 Ala. 314. ' Society etc. v. Morris etc., Saxt. 157 ; Potier's Ex'rs. v. Burden, 38 Ala. Col ; Onbb v. Smith, 16 Wis. 661. * Shields v. Arndt, 3 Green Ch. 234; Coalter v. Hunter, 4 Eaud. 58; Hols- man V. Boiling etc., 1 McCart. 335 ; McCallum v. Germantown, 54 Pa. St. 40. But in the case of a public nuisance it would seem that no length of user and occupancy, however extended and under whatever claim of right, will avail. Rochester v. Eriokson, 46 Barb. 92. ' Shields v. Arndt, 3 Green Ch. 234. * Holsman v. Boiling etc., 1 McCart. 335. ' Pratt v. Lamson, 3 Allen, 275. « Bealey v. Shaw, 6 East, 208 ; Davies ii. 'Williams, 16 ^ diction in the case, the legal remedy being insufficient. ' Winnipiseogee etc. v. Worster, 39 N. H. 433, and cases cited. «Id. ' Kennedy v. Scovil, 13 Conn. 316 ; Bliss v. Rice, 17 Pick. 33. » Kennedy v. Scovil, 13 Conn. 310. CHAT. ST.] HtHSAlilGE. 287 common of a mill acd 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.i § 516. Where an injunction is sought to prevent inter- ference with the enjoyment of property by the erection of a dam, equity will not be governed by the mere value of the property.^ Nor wiU the relief be denied because complain- ant'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 reqidriug the right to be first established at law prevails only in cases where the right itself is in dispute or is doubtful. ^ 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 allegation of complainant's right having been established in a suit at law.* § 617. Equity will restrain defendants from wasting water running to complainant's mill, and thereby diminishing their water power. ^ ■ If, however, the injury is small and can be adequately compensated in damages, equity will not interfere, but win leave the parties to their remedy at law." K'or in ' Bliss V. Bice, 17 Pick. 33. But the court liolding tliat each co-tenant had a right during his term to use the whole of the water in such way as he chose, without injury to the common property, refused to enjoin defendant to fill up his channel, or to desist from drawing water by such channel during his own term of using the mill. ' White V. Forbes, Walk. Mich. 112. ' Sprague «. Rhodes, 4 E. I. 301 ; White v. Forbes, "JValk. Mich. 113. * Sprague i). Rhodes, 4 E. I. 801. And it is also held in this case, though it would appear to be contrary to the weight of authority, that such a bill is not demurrable in failing to state a case of irreparable mischief. ' Ballon V. Inhabitants etc., 4 Gray, 334. In this case complainants had erected a reservoir to collect water for their mill during the dry season, and defendants raised the gate of the reservoir allowing the water to escape. Injunction was held to be the proper remedy on the ground that the injury was a private nuisance, and a statute giving the court jurisdic- tion in equity in all cases of nuisance the remedy was proper, the remedy at law not being plain, adequate and sufficient. And see Bemis v. Upham, 13 Pick. 169, a case arising under the same statute. • Quackenbush v. Van Riper, 3 Green Ch. 350. 288 INJtTNCTIONS. [chap. XI. sucli a case ■vvill it avail complainant that he has established his right at law.i But the rebuilding of a dam will be enjoined where, before it was swept away, its stagnant waters had firoved so injurious to the neighborhood that an adjacent owner had recovered damages for the injury sustained.^ And a municipal corporation 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. Tlie injury threatened by the corporate author- ities being permanent to the freehold, under a claim of right which is nnfounded, and it being doubtful whether adequate compensation can be made in damages, an injunction is the proper remedy.^ § 518. A temporary injunction, granted ex pa/rte at the suit of the owner of a mill dam, to restrain a town from opening certain sluice ways in the dam, will be dissolved when it appears that its dissolution will not result in any loss to complainant which can not be repaired in damages, or that the dissolution will not aifect the cause in a trial on the merits.* And a mere general and indefinite suggestion 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 rebuilding it at all.' o o ' Quackenbusli ». Van Kiper, 3 Green Ch. 350. " Miller «. Trueheart, 4 Leigh, 569. But if it is made to appear that cer- tain expedients proposed by the mill owners may prevent the mischief complained of, the issue should be left to a jury to determine. = Clark v. Mayor etc., 13 Barb. 33. * Wing «. Fairhaven, 8 Cush. 368. = Talley «. Tyree, 3 Rob. Va. 500. « Id. OI-IAP. XI.] NTJISANOE. 289 ' rV. PUBUO I^UISAHCIS. 3 519. Piirpresture. 530. Erection of piers, when enjoined. 521. Injunction not allowed wliere remedy exists at law. 523. Private persons seeking injunction against public nuisances must show special injury. 523. Acts authorized by statute will not be enjoined. 524. Obstruction to flow of river through a city ; obstruction to public square. 525. Public nuisance not usually enjoined in the absence of violation of private right. 536. Non-navigable stream ; pendency of indictment no bar to relief by injunction. 527. Adverse possession no bar to injunction against public nuisance. § 519. One of tlie earliest recognized forms of public nuisance with which equity has interfered is that of piirpres- ture. A purpresture was formerly held to be a close or enclosure, or in other words an encroachment whereby one person makes several to himself that which ought to be common to the public. ' The later acceptation of the term, however, is that of an encroachment upon the rights of the sovereign, either by trespassing on his soil, or upon easements, 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 seashore, or other tidal waters belonging to the sovereign, between high and low water mark.^ The jurisdiction of eqiiity in cases of purpres- ture, as well as of public nuisances generally, rests in the necessity of preventing irreparable mischief and avoiding vexatious litigation. The equitable remedy is more efficacious than the remedy at law, since it has the effect, not only of ' 2 Coke Inst. 38, 272. • New Orleans v. United States, 10 Pet. 663 ; Mohawk etc. «. Utica etc., 6 Paige, 554; Attorney General b. Cohoes Company, 6 Paige, 133. • Attorney General ®. Chamberlane, 4 Kay & J. 393. 19 290 rajuNC?noNs. [chap. xi. abating nuisances already existing, but of restraining tbose wbieh are threatened or in progress. ^ § 520. 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 jper se, and will be enjoined without evidence to show that it would, if erected, be a nuisance in fact.^ But where it clearly appears that the erection of a pier or wharf in tidal waters, and upon soil thereunder, belonging to the state, would not constitute a public nuisance, and would not prove injurious to the harbor or to the people of the state, an injunction should not be allowed.* Where, however, the structure proposed would hinder navigation, it will not avail defendant to urge that the benefit to the public counterbalances the inconvenience.^ 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.^ But any unauthorized appropriation of public property to private uses, amounting to a purpresture or public nuisance, is within the jurisdiction of equity to enjoin. And the cutting through the embankments of a public canal to draw off water for defendants' mills, comes within the rule and will be restrained.' § 521. 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 attained in the ordi- nary tribunals,' unless upon the application of one who suffers ' 2 Story's Bq. § 924; Attorney General tj. Johnson, 2 Wils. Ch. 87. ' People v. Vanderbilt, 28 N. Y. 396; Same v. Same, 38 Bart. 382; Davis ». Mayor etc., 4 Kern. 526. ' People D. Vanderbilt, 38 Barb. 282. " People V. Davidson, 30 Cal. 379. ' Eex ®. Ward, 4 A. & E. 386. * Attorney General «. Cohoes etc., 6 Paige, 133 ; Mohavfk etc. v. Utica etc., 6 Paige, 554 ; Attorney General d. Cleaver, 18 Ves. 217. ' Attorney General «. Cohoes, 6 Paige, 133. » State V. Mayor etc., 5 Port. 279; Water etc. «. Hudson, 2 Beas. 420. ' Water etc. v. Hudson, 2 Beas. 420 ; Morris etc. s. Prudden, 5 C. E. Green, 530. CHAP. Xl.J NUISANCE. 291 a personal injury aside from the injury to the pttlic, in which case an injunction may be allowed, even though there is a remedy at law by abatement of the nuisance and indictment of the offender. 1 § 522. 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 independent of the general injury to the public. ^ Even in cases of unques- tioned nuisance, if the party complaining shows no special injury to himself different from the common injury to the ]3ublie, he is not entitled to an injunction. ^ In accordance with these principles, where it is made to appear after injunc- tion granted that the injury suffered by complainant is sus- tained by him in common with every tax payer, and the damage is therefore not special or peculiar, the injunction will be dissolved.* And where the injury is doubtful and the evidence conflicting, the relief will generally be withheld. ^ It is held, however, that the fact of proceedings having been 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 ' Swell v. Greenwood, 26 Iowa, 377. ' But the injury must be great and the necessity pressing. Morris etc. v. Prudden, 5 C. E. Green, 530. ^ Bigelow -B. Hartford etc., 14 Conn. 565 ; O'Brien ■». Norwich, etc., 17 Conn. 372 ; Frink i>. Lawrence, 20 Conn. 117 ; Doolittle d. Supervisors etc., 18 N. T. 160 ; Corning v. Lowerro, 6 Johns. Ch. 439 ; Allen v. Board etc., 2 Beas. 68; Hinchman v. Paterson etc., 2 C. E. Green, 75 ; Mechling v. Kit- tanning etc., 1 Grant's Cases, 614; Beveridge'^. Lacey, 3 Rand. 68; Dawson 11. St. Paul etc., 15 Minn. 136; Walker v. Shepardson, 2 Wis. 384; Barnes i). Racine, 4 Wis. 454; Williams v. Smith, 22 Wis. 594; Ewell ■». Green- wood, 26 Iowa, 377. And in Highee v. Camden etc., 4 C. E. Green, 276, it is said that a hill hy private individuals is a proper remedy so far as the injury to complainants is a personal or peculiar injury, and not one shared hy them in common with the public, but no further. But see, contra, Whitfield ■». Rogers, 26 Miss. 84. ' Hinchman «. Paterson etc., 2 C. E. Green, 75. * Allen 0. Board etc., 2 Beas. 68. « Earl of Ripon «. Hobart, 3 Myl. & K. 169 ; Hamilton ■». New York etc., 9 Paige, 171. • Attorney General v. Johnson, 2 Wils. Cli. 87 ; Attorney General «. Forbes 2 Myl. & Cr. 123. 292 rNJDNCTIONS. [gHAP. XI. will not sufflbe that the person complaining merely shoAvs a violation of his rights, and he mnst show such a violation as is or will be attended with serious damage. ''■ § 523. A piiblie nuisance can not exist in acts warranted by law or authorized by legislative sanction, even though the act complained of might, independent of statute, be a nui- sance.^ Nor will a charge in the bill of special and peculiar injury to the complainant avail, if the work sought to be restrained is authorized by legislative enactment.^ ' Blgelow V. Hartford etc., 14 Conn. 565. This waa a bill in equity brought by the owner of buildings and land above a causeway which had been swept away to restrain defendant from rebuilding the causeway. It appearing that no special injury was threatened to complainant's right, and that the injury and inconvenience resulting to him from the erection of the causeway would be small and not capable of appreciation, it was held that the injunction ought to be refused. Storrs, J., says : " Of whatever character it is requisite that the injury complained of should be, in order to lay the foundation for this remedy, it is necessary that it should be a substantial and not merely a technical or inconsequential injury. There must not only be a violation of the plaintiffs rights, but such a vio- lation 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 summary, peculiar and extraordinary remedy of injunc- tion. Spencer «. London and Birmingham Eailway 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 engines of oppression and vexation and bring them into merited odium. It is a power which is extraordinary in its character, and to be exer»ised generally only in cases of necessity, or where other remedies may be inadequate, and even then with great discretion and carefulness. It is a salutary, and indeed a necessary power when confined within those safe limits in which it has been exercised ; but capable of being made an instrument of oppression, and therefore to be extended, if at all, with great circumspection. Earl of Ripon D. Hobart, 3 Mylne & Keene, 169." ' McEarland v. Orange etc., 3 Beas. 17 ; Hinchman v. Paterson etc., 2 C. E. Green, 75 ; Hogencamp •«. Same, lb. 83 ; Rex «. Pease, 4 B. & A. 30. And see Bordentown etc. «. Camden etc., 3 Harr. 314 ; Davis «. Mayor etc., 14 N. T. 506 ; Attorney General v. Conservators etc., 1 Hem. & M. 1 j Attor- ney General «. Metropolitan etc., lb. 313. But see,emtra, Le Clercq etc., s. Trustees etc., 7 Ohio, 318. ' Hogencamp v. Paterson etc., 2 C. E. Green, 83. CHAP. XI. 1 NUISANCE. 293 § 524. The erection of a foundation wall as a support for a building in sucli manner as to obstruct the natural flow of water in a river flowing through a city, thereby contributing to the overflow of the banks in high water, is a public nui- sance, which will be enjoined at the suit of the city corpora- tion, i And the owners of adjacent lots are entitled to an injunction against the obstruction of a square dedicated to public use; 2 or the bill may be filed by the corporate author- ities of the town, with whom may be joined private citizens affected by the nuisance. ^ § 525. Equity will not restrain the continuance of a public nuisance 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.* § 526. The only ground on which the obstruction of a navigable creek can be enjoined is the hindrance to navigation, and where the stream is not in fact navigated, and has not been for many years, the injunction will be denied. ^ But the fact that criminal proceedings are pending 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 on 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.' ' Rochester v. Erickson, 46 Barb. 93. « 'Williams «. Smith, 33 Wis. .594; LeClercq etc. v. Trustees etc., 7 Ohio, 318 ; Trustees etc. v. Cowen, 4 Paige, 510. ' Trustees etc., v. Cowen, 4 Paige, 510. And see further, as to joinder of corporate authorities and private citizens to enjoin a public nuisance, Mayor etc. «. Bolt, 5 Ves. 139. * Smith «. Lockwood, 13 Barb. 209. ' Gilbert v. Morris etc., 4 Halst. Oh. 495. » Attorney General «. Hunter, 1 Dev. Eq. 13. And see further as to injunction of a nuisance pending an indictment for the same oflfense People V. St. Louis, 5 Gilm. 351. 294 rNjuNonoNS. [chap. xi. § 527. In considering the subject of injunctions to restrain private nuisances, we have seen that twenty years adverse user and p'ossession under a claim of right constituted an eiFectual bar to the exercise of the jurisdiction, i 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 uninterrupted, or under whatever claim of right, will prevent a court of equity from restraining the perpetuation of such a nuisance by additions and repairs.^ V. EOADS AKD EUlLWATS. § 538. Injunctions allowed against obstruction of highway where com- plainant is specially injured. 529. The same. 530. Railroad not a nuisance ^er s«. 531. Court of equity will not assume functions of 2, jui-y. 533. Of parties. 533. Private person seeking injunction against street railway must show special injury. 534. Construction of railway by private citizen, when enjoined. § 528. The remedy by injunction is the most efficient means of preventing obstructions to public highways, and where the facts are easy of ascertainment and the rights resulting therefrom free from doubt, the relief will be granted at the suit of a citizen having an immediate and special interest in the matter.^ And the obstruction of a street, by building a house thereon, is a public nuisance which may be restrained by adjacent lot owners who suffer a special injury from the obstruction.'' It is to be noticed, however, that the rule requiring complainants to show a special injury pecuhar to themselves and distinct from the general inconvenience Bxperieneed by the public, is inilexible,^ and where they fail ' Ante, % 507. ' Rochester v. Erickson, 46 Barb. 93. ' Green «. Oakes, 17 111. 249; Craig «. The People, 47 111. 487. * Corning v. Lowerre, 6 Johns. Ch. 439. •Id. CHAP. XI.J NinSANCE. 295 to show such injury, and own no property fronting on tlie street, the relief will be withheld, even though they be residents and tax payers, i And the fact of one's traveling the road frequently and being greatly inconvenienced by its obstruction, will not authorize the injunction in the absence of any special injury. ^ § 529. Even though the persons injured might have lain by until the completion of the road and then recos^ered damages for injuries sustained, equity will still interfere by injunction where the public officers having charge of the road are proceeding illegally and improperly, and where the inter- ference is necessary to prevent a multiplicity of suits. ^ But proof of special injury to complainants will not, of itself, suffice to warrant an injunction, and the court will require, as in the case of trespass, 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.* So, too, the court will refuse to interfere where the obstruction is not necessarily a nuisance per se, but something which may or may not be, according to circumstances. In such case an injunction will not be allowed until the matter has been determined by a jury. ^ And a supervisor of high- ways, as such, can have no injunction to restrain obstructions to a highway.' § 530. With regard to the interference of equity in restraint of public nuisances resulting from railroads, it is to be noticed in the first place that the erection of a railway 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. ' ' McCowan v. Whitesides, 31 Ind. 335; Davis «. Mayor, 4 Kern. 506; Dawson «. St. Paul etc., 15 Minn. 136. 2 McCowan «. Whitesides, 31 Ind. 385. ' Mohawk v. Artcher, 6 Paige, 83. * Fort V. Groves, 39 Md. 188 ; Zabriskie v. Jersey etc., 3 Beas. 814. » Dunning ■». Aurora etc., 40 111. 481 ; Lake View v. Letz etc., 44 111. 81. ' Putnam o. Valentine, 5 Ohio, 187. ' Lexington etc. •». Applegate, 8 Dana, 389 ; Hentz d. Long Island etc., 13 Barb. 646; Bell v. Ohio etc., 35 Pa. St. 161. 296 iNjTiNcnoiis. [chap. xi. N^or will a general averment that the road is a flagrant nuisance sufliee in the absence, of facts proving it to be such.i And the fact that the change in the mode of travel thus induced in the street or thoroughfare may have had an injurious effect upon business or rents in such thoroughfare, affords no ground for reliefs And where a railroad is authorized by the terms of its charter to construct its road in a particular manner, or through a particular street, such construction, being authorized by law, is not a nuisance and will not be enjoined.* 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.* § 531. Where 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 decide the issue in advance of a trial at law.^ § 532. The interest in and use of public streets being ^5- Uoijv/ris, their appropriation to private or corporate use in the construction of a railway, without authority of law, and the obstruction thus caused to travel, constitute a public nui- sance which may be enjoined on behalf of the people.^ A city, however, in its corporate capacity, has not such an interest or property in the streets and public squares over • Hentz V. Long Island etc., 13 Barb. 646. ' Lexington etc. «. Applegate, 8 Dana, 389. « Currier ■». West etc., 6 Blatch. 487 ; McFarland «. Orange etc., 2 Beas. 17. * Currier v. West etc., 6 Blatch. 487 ; Davis v. Mayor etc., 4 Kern. 506. ■■ Mayor etc. ■». Georgia etc., 40 Geo. 471. " Tlie People ®. New York etc., 45 Biirb. 73. CHAP. XI.] NDISAHOE. 297 whieli a railway is built as to entitle it to an injunction restraining the erection of tlie 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 property owners, the right of passage not being obstructed to the public for other purposes.^ § 533. 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 incon- venience to the public. 5 In other words, damage sustained in common by all the individuals of a large class, furnishes no foundation for relief on the part of a single individual of that class. The rule applies with equal force in the case of rail- ways, and the construction of a street railway wiU 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.* § 534. Where one under contract with a railroad company which has failed to construct its road, has gone on with the construction 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 complainants 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.* ' Milwaukee r>. Milwaukee etc., 7 Wis. 85. ' Drake v. Hudson etc., 7 Barb. 508. • ArUe, § 533. < Osborne v. Brooklyn, 5 Blatch. 366. » Stewart and Foltz's Appeal, 56 Pa. St. 413. 'Id. 298 mjuNcrnoNS. [chap. xi. VI. Beidgis. § 535. Erection of bridge, when enjoined in United States courts. 536. ■Injunction not allowed where legal right is in doubt. § 535. The erection of a bridge over a large navigable river in sucb manner as to seriously obstruct the navigation of the river, is a public nuisance which will be enjoined 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 bordering on the river, on the ground that the state, as proprietor of its public works, suffers a special injury from day to day by the erection of the bridge, which injury is not reniediable at law and not susceptible of computation. 2 But a riparian proprietor will not be allowed to restrain the erection of a bridge by authority of a state leg- islature, where the injury which he would sustain would be consequential 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 juris- diction be exercised upon a mere possibility of injury,^ nor ' Pennsylvania v. Wheeling etc., 13 How. 518; Baird v. Shore Line, 6 Blatch. 276. In the latter case, complainant came within the rule requir- ing special injury to be shown, he having vessels engaged in the naviga- tion of the river. But the erection being afterward authorized by act oi congress, the injunction was dissolved. ^ Pennsylvania «. Wheeling etc., 13 How. 518, Taney, C. J., and Daniel, J., dissenting. But the relief has been denied where the corporate authori- ties of a city sought to restrain the erection of an aqueduct causing an obstruction to a navigable river, on the ground that they suffered no spe- cial injury to themselves different from the general injury to. the public. Georgetown ®. Alexandria etc., 13 Pet. 91. ' Oilman i>. Philadelphia, 3 Wal. 713 ; the case distinguished from the Wheeling Bridge case, supra. ' Mohawk etc. v. Utica etc., 6 Paige, 554. OHAP. XI.J HIIISANCE. 299 unless the evidence clearly shows that the bridge would be an obstruction to the navigation of the river. ' § 536. Though the jurisdiction of equity is recognized to restrain the building of a bridge so near to one already exist- ing under legislative authority as to lessen the profits from tolls, yet where the legal right is not clear, defendant as well as complainant professing to be acting under authority of the legislature, and it not being shown that the injury would be irreparable, the court will not interfere. ^ But where com- plainant's right to the free navigation of the river is clear, and the court is in doubt whether the 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.* ' Hutcliinson «. Thompson, 9 Ohio, 53. But see Silliman v. Hudson etc., 4 Blatcli. 74, infra. ' Charles etc. v. Warren etc., 6 Pick. 376. * Silliman v. Hudson etc., 4 Blatch. 74. This case on final hearing is reported in 4 Blatch. 395, before Nelson and Hall, J. J., and the judges being divided in opinion as to whether the injunction should be made perpetual, it was so certified to the Supreme Court of the United States, and upon the points so certified the judges of that court were also equally divided. See 1 Black, 583. The court below then decreed the dismissal of the bills, from which decrees appeals were had to the Supreme Court of the United States and upon hearing of the appeals the judges of that court were again equally divided. See 3 "Wal. 403. As the result of this divi- sion the decrees of the Circuit Court were confirmed. 300 iNjuNcnoNS. [chap. xi. YII. Speciai. ^Nuisances. § 587. Equity will not restrain a lawful business conducted in the ordi- nary way. 538. Eight to lateral support will he protected by injunction. 539. Violation of burial ground may be restrained. 540. Of acts not nuisances p&r se. 541. Houses of ill fame may be enjoined. 543. Acquiescence and encouragement, effect of. 543. When injunction will be perpetuated. § 537. 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 appear- ing that greater injury would residt from granting than from withholding the relief, and where such injury as might result could be adequately compensated in damages. ^ And where drfendant disclaims the intention of continuing the nuisance, and is using due diligence for its removal, the injunction will be refused. 2 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.* § 538. The right to lateral support is regarded as an inci- dent to the ownership of land, and its infringement has been considered as a nuisance which equity may enjoin. Thus, the removal and excavation 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.* "Whether a town does or does not receive such ' Richard's Appeal, 57 Pa. St. 105. , ' King V. Morris etc., 3 C. E. Green, 397. « People V. St. Louis, 5 Gilm. 351 ; Attorney General v. Hunter, 1 Dey. Eq. 12. 'Farrand v. Marshall, 19 Barb. 380; Same u. Same, 21 Barb. 409. In CHAP. XI. J NmSAHOB. 301 Bpecial injury from obstructions to a stream caused by a rail- way corporation as to entitle it to an injunction, tbe relief will be refused until tbe question of whether the acts of the com- pany are within their charter can be determined at law.^ § 539. The trustees of a voluntary religious association may enjoin in behalf of their church the violation of a burial ground dedicated to the uses o:f the church by the owner of the soil; and in such a case the injunction wiU lie even against the holder of the legal title.* § 540. Equity will not lend its aid to enforce by injunction the ordinances of a municipal corporation restraining an act which is not shown to be a nuisance per se.^ And where a body of commissioners, appointed by the executive authority of the state, and having no authority for the exercise of the powers ot local legislation, attempt by an ordinance to abate as a nuisance that which is not a nuisance at common law, an injunction may be granted to restrain their action.* § 541. The general principles of equity with regard to nuisances and their restraint, apply to houses of ill fame, and the continuance of such houses may be restrained upon a bill filed by private persons, alleging that the close proximity of such nuisance deprives them of the comfortable enjoyment of their property and greatly diminishes its value. ^ § 542. As we have already seen, long-continued acquies- cence in the erection of works may constitute a bar to relief in equity on the ground of nuisance.* The rule is extended even farther, and it is held that one party may so encourage this case tlie opinion of tlie court, thongli somewliat dbitm; would seem to imply that the doctrine is to be confined strictly to those cases where the owner of the land has not, by building or otherwise, increased the lateral pressure upon the adjoining soil ; since, when the owner of the land has erected buildings upon the edge of his soil, he himself is regarded as in fault. • Sheboygan v. Sheboygan etc., 31 Wis. 667. » Beatty v. Kurtz, 3 Pet. 566. ' Mayor t>. Thome, 7 Paige, 361. * Schuster ». Metropolitan etc., 49 Barb. 450. 5 Hamilton e. Whitridge, 11 Md, 128. « "Wood «. SutcliflFe, 3 Sim. N. S. 163. 302 iNjuNcrnoNS. [chap. xi. another in tlie erection of wliat lie afterward complains of as a nuisance, as to give tlie adverse party a right to invoke the aid of equity to restrain proceedings at law for the recovery of damages resulting from the alleged nuisance. ^ § 543. 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 consti- tute a nuisance injurious to complainants, the preliminary injunction should be made perpetual.^ ' Williams v. Jersey, 1 Cr. & Ph. 91. ' Attorney General c. Steward, 6 C. E. Green, 340. CHAP. Xn.] EASEMENTS. 303 CHAPTEE XII. OF mJUNCTIONS FOE THE PROTECTION OF EASEMENTS. I. LBADINa PRrftCIPLEB. II. Easements js Light. III. Easements in Watbk. IV. Right of "Wat. I. Leading Pebscipies, § 544. Jurisdiction analagous to that in nuisance. 545. Qeneral rule ; right by prescription. 546. Easement must be certain and violation of right clear. 547. Covenants against erections will be enforced. 548. Easement to support. 549. Right of burial. 550. Action of trespass. 551. Public squares. § S4A. 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, though the converse of the proposi- tion does not hold true. In both cases, to warrant the inter- position of equity, an irreparable injury must be made to appear, which is not susceptible of adequate compensation in pecuniary damages, or which, from the nature of the case, would occasion a constantly recurring grievance, such as 304 mjuHcnoNS. [chat. xu. loss of health, trade, business, or destruction of means of subsistence. 1 § 545. It may be stated as a general rule that where an easement or servitude is annexed or pertains to a private estate, either by grant, covenant or prescription, any encroach- ment upon its quiet enjoyment and exercise will be prevented by injunction. ^ 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.* So acquiescence for twenty years in defendant's use and enjoyment of the right will prevent com- plainant from enjoining such use.^ But where the right or easanent is based upon prescription, it must be shown to have been in exclusion of the rights of others. Thus, where com- plainant relies on twenty years adverse user and enjoyment of a iishery 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 that such use was in exclusion of all others will be fatal to complainant's case.' § 546. 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 possible injury to complainant's easement is shown, as in the erection of a ' Webber v. Gage, 39 N. H. 183, and cases cited. See, also, chapter on nuisances, ante. ' "Webber v. Gage, 39 N. H. 182; Seymour v. McDonald, 4 Sandf. Ch. 503; Hulme V. Sbreve, 3 Green Ch. 116; Hills v. Miller, 3 Paige, 254; Trustees etc. V. Cowen, 4 Paige, 510. ' Seymour v. McDonald, 4 Sandf. Ch. 502. * Hulme V. Shreve, 3 Green Ch. 116. And see Shreve d. Voorhees, 2 Green Ch. 25. ' Haight V. Morris Aqueduct, 4 Wash. C. C. 601. ' Delaware v. Stump, 8 Gill & J. 479. ' Olmsted v. Loomis, 6 Barb. 153. OHAP. Xn.] BASEMENIS. 305 wharf, wliere it does not appear that his property rights will be violated, and where such injury as may result can be reme- died at law, an injunction will not be allowed, i ISTor 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 pro- tecting him from such erections, either by prescription or by grant from the person making the improvement, or from those under whom he claims title. ^ i§ 547. 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 ease- ment, and the grantee is entitled to an injunction to restrain the owner of the servient estate from the erection of build- ings in violation of his covenant. * And where the vendee of land has purchased upon the strength of representations made by the vendor that an alley should be established and perpetu- ally 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 perpetually 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 successive 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. ^ § 548. The relief will be extended for the protection of an easement to support 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 ' Taylor b. Brookman, 45 Barb. 106. ' Lasala «. Holbrook, 4 Paige, 169. ' Hills -0. Miller, 3 Paige, 254; Trustees etc. ■». Cowen, 4 Paige, 510. * Trueheart v. Price, 2 Munf. 468. ' Mann v. Stephens, 15 Sim. 377. And see Seymour i>. McDonald, 4 Sand/. Cli. 502. 20 306 rajuNcnoNS. [chap. xn. 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.^ § 549. The right of burial in a church yard, though con- veyed 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 p^e^■ent such 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. ^ § 550. 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 maintained 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 secure that which has been decided at law to be full compensation for the easement. ^ § 551. The right which it is sought to protect by injunc- tion may result from a dedication of land to public uses, as well as from express grant or adverse possession. Thus, where land has been dedicated to the use of the public as a public square, the owners of lots adjoining the square who have purchased their lots and made improvements, relying upon STich dedication to the public use, are entitled to the aid of equity to restrain the erection ot private buildings on the square.* IS'or will the original proprietors who have dedi- cated land to be used as a public square afterward be allowed ' Phillips B. Bordman, 4 Allen, 147. * Richards v. Northwest etc., 32 Barb. 43. ' Barnard v. Wallis, 1 Cr. & Ph. 85. ^ Rutherford ■». Taylor, 38 Mo. 315. And see Brown ■». Manning, Ohio, 298. flHAP. xn.J EASEMENTS. 307 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 sucli appropriation. i Such a complainant, being one of the inhabitants of the town and holding property con- tiguous to the square, is not a mere volunteer assuming to protect the rights of others, but is injured in his individual rights, and is entitled to the aid of equity to protect his own interests. 2 Where, however, the owners of adjacent lots sustain no injury 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 commissioners from leasing portions of the ground for private purposes, reserving the rent to the county, complain- ants in such case being regarded merely as volunteers having no personal interests to be protected.^ II. Easements m Light. § 553. Eight to ancient lights will be protected. 553. Right to ancient lights by prescription not recognized in this country. 554. Lessor and lessee. 555. Land adjacent to canal. § 652. The right to the uninterrupted use of ancient lights long enjoyed is entitled to protection in equity. It is not, however, every deprivation of ancient lights that will authorize the interference by injunction, nor is the diminution of the value of the premises by the erection of buildings so as to darken one's windows, alone a sufficient ground, nor the fact that an action on the case would lie for the damages resulting from such diminution. To warrant the relief there must be ' Brown i>. Manning, 6 Ohio, 298. 'Id. 2 Smith «. Houston, 6 Ohio, 101. And see Putnam «. Valentine, 5 Ohio 187. 808 rajTOtcrnoNS. [chap. jm. such, material injury to the comfort of those dwelling in the neighboring house as requires the exercise of a preventive as well as a remedial power, i And where it is not shown that the obstruction of the light would cause a material injury to the comfort of complainant, the relief will not be granted.^ Where an injunction is sought to prevent defendant from building over what is claimed to be a public highway in such ■ Attorney General «. Nicliol, 16 Yes. 338. The general principles underlying the jurisdiction of equity to interfere for the protection of easements in lights are well laid down hy 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 d amages, 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 effect 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 damages, but prevented by injunc- tion. * * * I repeat the observation of Lord Hardwicke, that a diminution of the value of the premises is not a ground ; and there is as little doubt that this court will not interpose upon every degree of darken- ing ancient lights and windows. 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, therefore, 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." ^ Wilson D. Cohen, Eice Eq. 80. It is often a matter of great difficulty 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 «. Stacey, 2 Car. & P. 465, substantially as follows: To constitute 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 affected can not be used for all the purposes to which it might otherwise 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 distinc- tion must be drawn between a practical inconvenience and a real injury to the plaintiff in the enjoyment of the premises. CHAP. Xn.] EASEMENTS. 309 manner as to obstruct complainant's light and air, it will not be allowed if complainant fails to sbow a clear legal right, and shows no direct grant of way or of a right to light, i § 553. Although, as we have already seen, an easement oi servitude may be created by prescription, yet in this country an exception'is taken in the case of easements in light, and the English doctrine of sustaining a right to ancient lights and windows upon twenty years user does not prevail, and such user will not constitute sufficient ground for an injunc- tion. ^ ISTor will the fact that the eaves of a house project ' Biddle i). Ash, 8 Ashmead, 211. ' King «. MiUer, 4 Halst. Ch. 559 ; Cherry v. Stein, 11 Md. 1. But see, contra, Robeson «. Pittenger, 1 Green Ch. 57. King v. Miller, 4 Halst. Ch. 559, was a bill for an injunction to restrain defendant from so building as to close up complainant's window in the gable end of his house, which he claimetl was an ancient window. Complainant's house stood on the line of his lot. The injunction was denied, Halstead, Chancellor, saying: "The owner of a lot has the election to build on it as he pleases. The owner of the adjoining lot has the same right. If the one who builds first chooses to build on the line, the adjoining owner has no means of preventing it, and hag no means of preventing the continuance of the building on the line. Where one has a right to put up a building on the spot where he erects it, and to continue it there, and the adjoining owner can do nothing to prevent its erection on that spot, and can do nothing to prevent its remaining there, it is simply absurd to say that the latter can by lapse of time lose his right to build up to his line. The loss of a right by lapse of time, from an act done and continued by another, can only be in cases where the party against whom the time is running has some means of preventing the act or its continuance. Where he has no such means, he»is in no default, and can, therefore, lose no right. And a person by doing and continuing an act on his property which he has a right to do, and which another has no means of preventing, can acquire no right injurious to the property of that other." Cherry ■». Stein, 11 Md. 1, was a bill to restrain defendant from erecting a wall in such manner as to darken and shut up the lights and windows upon one side of com- plainant's house, complainant relying on twenty years user. Ecclegton, J., delivering the opinion of the court, denied the application of the English rule, saying: "Where A. makes a window in his own house, overlooking the open grounds of B., it is no infringement of the rights, or encroachment upon the property of the latter. * * And yet, under the English rule, if the window remains open and unobstructed for more than twenty years, B. can not afterwards erect a building on his own land, if it obstructs the light. To prevent such a consequence the rule does not give 310 KTJUNcrnoHS. [chap. xn. over an adjoining lot so as to throw the water from the roof upon the lot, sufBce to warrant an injunction where it does not appear that irreparable injury will follow. * § 554. As between 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 obstructing light, where it is not shown that the injury is irreparable and not susceptible of compensation in damages.^ § 555. 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. ^ him any riglit of action or legal proceeding;, but his only remedy is the seemingly ill-natured one of rendering the window of his neighbor useless, by building a wall or other obstruction for that purpose alone, if at the time he has no wish to build a house on his own property. And if the window be of considerable height the expense of obstructing it might be equivalent, or nearly so, to the value of the unimproved or vacant land designed to be protected. The effects and legal consequences resulting from the user of a way, and that of a light, are so essentially different, we do not perceive the propriety of holding that the twenty years rule which is applicable to the former should also be applied to the latter." And the court refused to sustain the injunction. ' Cherry «. Stein, 11 Md. 1. ' Atkins ». Chilson, 7 Met. 398, decided upon the authority of Ingraham •«. Bunnell, 5 Met. 118, holding that an injunction will not lie to restrain an injury caused to a reversionary interest in an estate unless the injury will be irreparable, or, from its nature, not susceptible of adequate pecuniary compensation. ' Barnett v. Johnson, 2 McCart. 481. OHAl'. Xn.l EASEMENTS. 311 III. Easements in Wateb. § 556. Basements in water, when protected ; evidence. 557. Prescriptive right. 558. Equity will not interfere where the right is doubtful. 559. Acquiescence a bar to the relief. 560. Illustration of the rule. 561. Canals. 562. When relief will be withheld. 563. Grantor and grantee. 564 Owners in severalty. § 556. An easement or servitude in water is, under some circumstances, 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 a stream, if the 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.^ It is 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 infringement 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 com- plainant. And where the evidence consists only of the ■ Society etc. v. Low, 3 C. E. Green, 19. ' Arthur v. Case, 1 Paige, 447. » Bliss e. Kennedy, 43 111. 67. * Norris «. Hill, 1 Mich. 303. 312 mjiiNCTioNs. [chap. xn. opinions of witnesses, there being great contrariety of opinion, it will not suffice to make an injunction perpetual, i § 557. An easement in water maj be acquired by prescrip- tion, and when so acquired it is as absolute as any other right, and equity will restrain its violation where such violation is productive of serious injury.^ Thus, where complainant has used and enjoyed 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 sensibly 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 obtaining 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. 5 But, though complainant has been 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 subter- ranean channel created five years before.^ § 558. Though equity will restrain the using of water to the injury of an easement, where the right is clear, it will not assume jurisdiction where the right is doubtful and the facts are not definitely ascertained.'' And the use of water in a well upon one's own premises wiU not be enjoined because it is ' Woodruff 1). Lockerby, 8 Wis. 369. This was a case where a preliminary injunction had been granted to restrain defendants from the erection of a mill in such manner as to deprive complainant of sufficient water for mill purposes. " Hulme «. Shreve, 3 Green Ch. 116. ' Shreve v. Voorhees, 3 Green Ch. 35. But the injunction was retained only so far as was necessary to secure complainant in the use of his mill as he had before enjoyed it, without any material or sensible alteration, and was dissolved so far as it restrained defendants from erecting their mill on their own land and using the water for mill purposes. * Haight V. Morris Aqueduct, 4 Wash. C. 0. 601. •Id. " Reid v. Giiford, 6 John. Oh. 19. ' Roath v. Driscoll, 20 Conn. 533. OHAP. XII.] EASEMENTS. 313 alleged that complainant is thereby deprived of water in his well, the facts not showing how he is thus deprived, the channel, if any, being underground, i So to warrant an injunction against obstructing the flow of water for a mill, the bill must show such obstruction to be unlawful; 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 sufiice.^ ISTor will equity interfere to settle and adjust the respective rights of parties to the use of water, nor to determine how much each one is entitled to use, complainant not having established definitely what his rights are.^ § 559. Where one has by his own acts consented to or acquiesced in the use of water in a particular manner, he will be estopped from afterward enjoining its use in that manner. Thus, where complainant without objection has stood by and allowed defendant 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 Avliere defendants, relying upon a verbal assurance that they would be allowed to 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 manner for twenty years, and has received compensa- tion for such use, he will be estopped from relief by injunc- tion.* Nor in such case is the insolvency of the defendant a sufficient cause for the interposition of equity, since insol- ' Roath v. DriscoU, 30 Conn. 533. The law of surface streams is inap- plicable in such a case, and it is held that every man is entitled to the natural advantages of his own land, and that he could not know that the water supplying his well percolated through another's land. « Patten v. Harden, 14 Wis. 473. * Olmsted v. Loomis, 6 Barb. 153. < Jacox D. Clark, Walk. Mich. 249. ' Payne o. Paddock, Walk. Mich. 487. • Heilman ». Union etc., 87 Pa. St. 100. 314 nsTjuNonoNS. [chap, xn, vency, thougli often inflnenciiig tiie court, does not of itself authorize the injunction, i § 560. Upon similar principles it is held that long acqui- escence on the part of the proprietors of a water power in a certain measurement of water to which defendants are entitled, will j)reclude the proprietors from obtaining relief by injunc- tion 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. ^ § 561. Where one is entitled to a water power supplied from a public canal, he can not by his own acts define or limit the rights of the canal company to the use of the water, and a perpetual 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 deprived of water for his mill by thus increasing the height of the dam.* § 562. Where complainant, having conveyed his mill site, has no use for the water himself, but seeks an injunction evidently as a means of compelling defendant to make com- pensation 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. ^ § 563. Since the purchase of a right carries with it of necessity all the incidents and privileges connected with the right and necessary to its enjoyment, the purchaser of land on which stands the abutment of a mill dam is entitled to the ' Hilman v. Union etc., 37 Pa. St. 100. ' Blanchard «. Doering, 23 Wis. 300. » Erie etc. v. Walker, 29 Pa. St. 170. * Spangler's Appeal, 64 Pa. St. 387. ' Warne v. Morris etc., 1 Halst. Oh. 410. ' Society v.. Butler, 1 Beas. 499, reversing the same case It). 264, OHAP. Xn.J EASEMENTS. 316 same use of the water wliicli had been enjoyed by his grantor, and a court of equity may enjoin the grantor from using or interfering with the water, or diverting it from grantee's miU.i § 564. 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 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 violation 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 authorize him to impair the flow of the stream by drawing off the water at a higher point. ^ ' Wall «. Cloud, 3 Humph. 181. ' Webb V. Portland etc., 3 Sumner, 189. Story, J., after stating that in actions of this nature it is not necessary to show 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 interfere and protect such a right from violation and invasion ; for, in a great variety of cases, the very ground of the interposi- tion of a court of equity is, that the injury done is irremediable at law; and that the right can only be permanently preserved or perpetuated by the powers of a court of equity. And one of the most ordinary processes to accomplish this end is by a wi-it of injunction, the nature and efficacy of which for such purpose I need not state, as the elementary treatises fully expound them. If, then, the diversion 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 founda- tion of an adverse right in the defendant, I know of no more fit case for the interposition of a court of equity, by way of injunction, to restrain the defendants from such an injurious act. If there be a remedy for the plaintiffs 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 perpetuate 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." 316 iNjiTNcrnoNS. [ghap. xn. IV. Eight of Wat. § 565. General rule. 566. Injunction not allowed pending action to determine the rigM. 567. Effect of statute. 568. Kight acquired by prescription. 569. Verbal permission. § 665. Equity will protect the enjoyment of a right of way ova- a street or road by restraining the erection of obstructions thereon, the interference being based upon the irreparable injury to the person aggrieved. i But the facts showing such irreparable injury must be stated in the bill, and mere general allegations will not suffice. ^ "Where, how- ever, complainant alleges a prescriptive right of way over defendant's land to a public road and a market, and that he has no other means of outlet except a circuitous and incon- venient route, he makes out a sufKcient case of irreparable mischief to entitle himself to an injunction.^ A clear and undoubted 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 right of way be admitted and its obstruction be also admitted, the court will not therefore interfere to restrain such obstruc- tion, but may in its discretion refuse the relief. ' § 566. By analogy to the rule that equity will not interfere to restrain a trespass 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 ' Roman v. Strauss, 10 Md. 89. ' Id. And see Amelung ©. Seekamp, 9 Gill & J. 468. « Shipley v. Caples, 17 Md. 179. * King v. McCully, 38 Pa. St. 76. ' Olack «. White, 3 Swan, 540. « Amelung ®. Seekamp, 9 Gill & J. 468. CHAP. Xn.] EASEMENTS. 317 damage will not suffice, but the facts must appear which show that the apprehension of such injury is well founded, i § 567. Where 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 pur- poses, where no proceedings at law have been instituted.^ § 568. 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, con- . tains sufficient equity to warrant an injunction. The injury in such ease 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 com- plainant's private estate.* § 569. Where the owner of land has given verbal permis- sion for the construction of a road or right of way through a portion of his premises, the grantee of such privilege or ease- ment will not be restrained from exercising it merely because the owner of the premises has changed his mind and desires to revoke the privilege.^ ' Amelung v. Seekamp, 9 Gill & J. 468. « Wolbert v. Philadelphia, 48 Pa. St. 430. 8 Shipley v. Caples, 17 Md. 179 ; Webber «. Gage, S9 N. H. 182. * Webber v. Gage, 39 N. H. 183. ' Lexington etc. ■». Ormsby, 7 Dana, 276. 818 iNJTjucnoHS. [chap. xm. CHAPTEE XIII. OF INJUNCTIONS FOR THE PROTECTION OF FRANCHISES. I. Gkotinds of the Relief.' II. Roads akd Railways. III. Bkidges. IV. Fbhkibs. V. Special Cases. I. Geoukds of the Relief. § 570. General rule. 671. Right need not "be established at law. 572. Relief analogous to that in cases of nuisance. 573. Right must be coupled with possession. 574. Negligence a bar to the relief § 570. The violation of francliises or special privileges con- ferred by legislative authority either upon individuals or upon corporations, aifords frequent occasion for invoking the extra- ordinary 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. Where, therefore, the OAvner of the franchise is in actual possession and his title or right is not disputed, an injunction is the proper remedy for protecting him in the exercise of the exclusive privilege granted him by statute. * ' Piscataqua etc. v. New Hampshire etc., 7 N. H. 35; Hartford etc. v. Bast Hartford, 16 Conn. 149; Enfield etc. v. Hartford etc., 17 Conn. 40; Gates V. McDanlel, 3 Stew. 311; Lucas v. McBlair, 13 Gill & J. 1; caAP. xm.] EEAijansES. 319 § 571. To warrant the interposition of equity for the pro- tection of franchises it is not necessary that the OAvner of the francliise should have first established liis 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 privilege 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 general right common to every citizen and which it is claimed the franchise violates. ^ § 572. In a general sense the relief afforded by courts of equity against the invasion of a franchise may be regarded as akin to that which is extended in cases of nuisance, and the violations of right in the two classes of cases are closely analo- gous. And where the legislature has conferred an exclusive pi'ivilege 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 i-ecourse to equity. 3 McRoberts i). "Washburne, 10 Minn. 23 ; Croton etc. v. Ryder, 1 Johns. Ch. 611 ; Livingston v. Ogden, 4 Johns. Cli. 48 ; In re Vanderbilt, lb. 57 ; Ogden B. Gibbons, lb. 150, affirmed 17 Johns. 488 ; Newburgh etc. ■». Miller, 5 Johns. Ch. 101 ; North etc. «. Hoffman, lb. 300; Livingston ii. Van Ingen, 9 Johns. 507 ; Auburn etc. «. Douglass, 13 Barb. 553 ; Boston etc. v. Salem etc., 2 Gray, 1. ' Moor «. Veazie, 31 Maine, 360 ; Piscataqua etc. i>. New Hampshire etc., 7 N. H. 35. ' Lansing ■». North River etc., 7 Johns. Qh. 162. ' Newburgh etc. d. Miller, 5 Johns. Ch. 101 ; Boston etc. «. Salem etc., 2 Gray, 1;' Boston etc. d. Boston etc., 16 Pick. 512. The same principle is recognized in Central etc. v. Lowell, 4 Gray, 474, though the injunction was refused on other grounds. In Newburgh etc. v. Miller, 5 Johns. Ch. 101, the rule is broadly stated that where one has the exclusive rio-ht to operate a ferry, bridge, or road, the erection of another ferry, bridge, or road so near the first as to cause an injurious competition is considered as a nuisance to the franchise which equity will perpetually enjoin. 320 INJUNCTIONS. LCHAP. xm. § 573. 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 injunction will be withheld. ^ § 574. He who seeks an injunction for the protection of a franchise must be free from negligence in order to entitle him- self 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 those conditions by others authorized so to do by act of legislature. ^ II. EoADS jUto Kailwats. § 675. Francliises in roads will be protected. 576. Eoad enjoined may be either public or private. 577. Injunction allowed wliere injury is only a trespass. 578. Complainant naust be diligent in assertion of bis right. 579. Actual injmy to the franchise must exist. § 575. Frequent instances of the interference of equity to prevent the violation of a franchise occiir 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 corporations. Where the right conferred by the legislature is in exclusion of the right of all other persons to construct and operate such a road and to receive tolls therefrom, courts of equity, regarding any encroachment upon or violation of such exclusive right as a nuisance to the franchise, will interfere for its protection and will restrain the use of the rival road.^ Thus, where complainant's road is incorporated under an act ' Enfield etc. e. Connecticut etc., 7 Conn. 51. «Id. ' Newburgh etc. v. Miller, 5 Johns. Ch. 101. OHAP. Xm.] FRANOUISJJH. 321 of legislature, wMcK provides that no other road shall be con- structed vithin thirty years after the passage of the act, the act being held constitutional, is regarded as creating a contract with the corporation and an injunction "mil be allowed against the operation of a rival road.i § 576. The exercise of the jurisdiction is entirely inde- pendent of the question as to whether the road which it ia sought to enjoin as a violation of complainant's franchise, has or has not the sanction of legislative authority, or whether it is a public or a private road. Thus, where certain persons, with a view to avoid payment of toll to a duly incorporated turnpike company, have established a by-road in such manner as to avoid the toll gate, they will be perpetually enjoined from using such road themselves, or from allowing others to use it. 2 Nor will a person be allowed to construct a road even upon his own land where it will result in allowing others to violate a franchise. Thus, where an incorporated company is operating a plank road and collecting toll in pursuance of its charter, an injunction will be allowed to restrain one who is opening and working a road on his OAvn land in such manner as to enable travelers to shun the toll gate and thus violate complainant's franchise.* § 677. Though such injuries to a franchise as call for the interposition of equity and the granting of an injunction are generally in the nature of nuisances, and though the jurisdic- tion of equity over such cases partakes largely of the nature of the jurisdiction in restraint of nuisance, 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 destruc- tion of toll gates and preventing the collection of tolls, though 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.* ' Boston etc. «. Salem etc., 3 Gray, 1 ; Boston etc. «. Boston etc., 16 Pick, 613. And see Central etc. v. Lowell, 4 Gray, 474. ° Croton etc. v. Ryder, 1 Johns. Oh. 611. ' Auburn etc. v. Douglass, 13 Barb. 553. * Justices etc. v. Griffin etc., 11 Geo. 246. 21 322 mjtracnojss. [chap. xm. § 578. As in all cases where the preventive jurisdiction of eqnity is invoked for the protection of rights, he who seeks relief against a violation of franchise must make his applica- tion 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, hut defendants have been permitted for a long period to proceed with the construction of their work and to incur large expen- ditures without objection, the injunction will be withheld. ^ § 579. 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 complainants are by their charter vested with the exclusive franchise of transporting passengers and freight by railway between two cities, though 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 effecting 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 com- plainants' rights will hot warrant 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 where in such case it appears upon final hearing that complainants' rights are clear and unquestioned, and that they have been for more than thirty years in the enjoyment of their franchise of carrying passengers 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. 3 But it has been held that the franchise of a street ' South Carolina etc. v. Columtiia etc., 13 Rich. Eq. 339. " Delaware etc. v. Camden etc. 2 MoCart, 1. " Delaware etc. v. Camden etc., 1 C. E. Q-reen, 821. onAP. xm.] FEiincHisES. 323 railway company does not 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 interfere with its running, i III. BximaES. § 580. General rule. 581. Bight need not be established at law. 583. Jurisdiction not dependent upon defendant's profits. 583. Landlord and tenant. 584. Injunction withheld where right is doubtful. 585. Negligence may bar relief. 586. The right must be exclusive. § 580. The exclusive right to construct and maintain bridges being a franchise dependent upon legislative 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 authority, 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 protection in a court of equity. ^ § 681. As we have already seen, in considering the general grounds of the 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 injunc- tion, since the creation of the franchise by legislative grant in the first instance 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 " New York etc. d. Forty-second Street etc., 50 Barb. 385. ^ Hartford etc. v. East Hartford, 16 Conn. 149 ; Enfield etc. ». Hartford etc., 17 Conn. 40. 324 TSJjmcnoNS. Fchap. xrn. a toll bridge over a river, their right is sufficiently established at law to entitle them, to the aid of equity for its protection, and any infringement of that right by the erection of another bridge to the prejudice of the first will be enjoined. ^ § 582. 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 defendant, a railway corporation, allows persons to cross its railway 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, vehicles, or animals for which complainant is entitled to take toU.^ § 583. The relief may sometimes be allowed even though the relation of landlord and tenant exists between the parties as to the subject of the franchise to be protected. Thus, where complainants lease their bridge to defendants, who use it in a manner expressly forbidden by the terms of their agreement, thereby greatly injuring cpmplainants in the rights retained by them, an injunction will be allowed against such improper use. In such case a court of equity proceeds upon the ground that defendants are guilty of maintaining a continual nui- sance which can be best remedied by the preventive power of equity.^ § 684. Where, notwithstanding the legislative grant of the franchise, the 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 consider- ation the relative convenience and inconvenience to the parties by granting or withholding the relief, and be governed thereby in its determination. Thus, where one has received from parliament the right to construct and maintain a bridge, and ' Piscataqua etc. v. New Hampsliire etc., 7 N. H. 35. ' Thompson r. New York etc., 3 Sandf. Ch. 625. ' Niagara etc. ■b. Great Western etc., 39 Barb. 212. CmAF. Xm.] FRANCHISES. 325 seeks to restrain a railway company from conveying its pas- sengers across the river in steamboats, but does not sliow any injury likely to result from such acts which can not be ade- quately compensated in damages, the question of the respec- tive rights of the parties being in doubt, an injunction will be withheld. 1 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, though 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. ^ § 585. Negligence on the part of the owner of the franchise in performing the conditions on which he received his exclu- sive right, may deprive him of the aid of equity for its protec- tion. 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 defend- ants, who are proceeding under legislative authority, from constructing the locks. ^ § 586. An important principle to be observed in the exercise of the jurisdiction for the protection of franchises, is that the right which is the subject of legislative grant, and which it is sought to protect, must be exclusive in its nature. And where the grant of a franchise 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 ease for the protection of a right which was not intended to be exclusive.* 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 ' Cory V. Yarmouth etc., 8 Hare, 593. "Id. « Enfield etc. v. Connecticut etc., 7 Conn. 61. *Fall o. County etc., 21 Cal. 337. President etc. ■». Trenton etc., 2 Beas. 46. 326 iNjmstcnoKa [chap. xm. the opening of another bridge within such distance as to greatly impair the profits of the first, i Especially will the aid of equity be withheld in such ease 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 ordinary purposes of travel for which it was originally constructed. 2 IV. Feeeies. § 587. General rule. 588. Relief not granted where remedy exists -at law. 589. Complainant must be free from blame. 590. Modification of general rule. 591. Protection extended to land necessary for enjoyment of franchise. § 587. 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 proprietors of the ferry, constitutes suificient ground to warrant a court of equity in granting an injunction for the protection of the franchise.* The rule is, however, to be accepted with the qualification that the right must be exclusive in its nature to entitle it to the protection of equity. And where complainants show no exclu- sive ferry privileges or franchise, they will not be allowed to enjoin the keeping of another ferry at the same place. ^ § 588. 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 law, and if it appears that the • Fall V. County etc., 31 Cal. 237. • President etc., v. Trenton etc., 2 Beas. 46. ' McRoberts i). "Washburne, 10 Minn. 23. • Gates V. McDaniel, 2 Stew. 211. ' Butt «. Colbert, 24 Tex. 355 OUAP. Xm.] KRANOHISES. 327 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 9, ferry, which is being violated by defendant, and shows his inability to procure proof so as to proceed with an action at law, he is entitled to restrain the infringement of his franchise, even though a former appli- cation had been refused on the ground that the remedy at law was ample. 2 § 589. He who seeks the aid of equity to restrain encroach- ments 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 defendant 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 carelessness as would warrant the forfeiture of his rights in a proper proceeding for that purpose.* § 590. Equity will only interfere 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 fran- chise. In accordance with this principle, it has been held that private persons will 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. ^ § 591. The owner of a ferry who has received his franchise by legislative grant, is entitled to the protection of equity to restrain the laying out of a public road through grounds ' Long 0. Merrill, N. C. Term R. 112. 'Same v. Same, lb. 256, 3 Murph. 339. « Ferrell ». Woodward, 20 Wis. 458. * Trent v. Cartersville etc., 11 Leigh, 521. »Id. 828 BSJTiNcrrioNS. [chap. xm. ■ adjoining his doek whicli have been used by him for a long period of years in connection with his ferry, and which are necessary for its beneficial nse.i V. Specscal Cases. § 592. Proceedings of public officers, -when enjoined. 593. Tax upon fraucliise, wlien enjoined. 594. Wlien injunction will issue as a matter of private right. 595. Franchise must be exclusive to be protected. 596. Public lottery entitled to protection by injunction. 597. "Written evidence of franchise must be produced. 598. Railway companies. 599. Where right is doubtful considerations of relative convenience and inconvenience will govern. 600. Exclusive right of navigating river. 601. Distinction between franchise and monopoly. § 593. While as a general rule the courts of the United States have no jurisdiction to restrain proceedings in the state courts, 2 they will grant an injunction against a public oiBcer of a state to restrain him from such proceedings under a void statute of the sfate as are likely to destroy a franchise created by the United States. ^ If, however, the act complained of is a mere trespass f6r which adequate damages may be had at law, an injunction wiU not be allowed. Thus, a distraint by the treasurer of a county against the money and property of an incorporated bank for taxes, will not be enjoined upon the ground of the unconstitutionality of the tax, since if the act under which the tax was levied be unconstitutional, the officer enforcing it is a mere trespasser, and is liable in damages in an action at law.* § 693. The fact that a tax has been illegally imposed upon a franchise does not of itself constitute sufficient foundation ' Flanders «. Wood, 34 Wis. 573. ' Diggs V. Wolcott, 4 Cranch, 179. « Osborn v. U. S. Bank, 9 Wheat. 738. * Mechanics etc. v. Debolt, 1 Ohio St. 691. CHAP. Xni.j KRAJ^iCHISES. 329 for relief by injunctiou. In this respect a tax upon a franchise does not differ from a tax levied upon any other species of prop- erty, real or personal, and a court of equity is governed by the same principles in granting or withholding an injunction against taxation of a franchise as are applicable in all other cases where its aid is invoked to restrain the collection of reve- nues. If therefore the only equity in support of the biU is the illegality of the tax imposed, the proper remedy is at law, and an injunction will not be allowed. ^ 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 destruction of the franchise itself by the threatened enforcement of an unconstitutional tax, an injunc- tion may properly be allowed.^ § 594. Where parties are fraudulently possessed of the franchise of a corporation created by law, and are exercising its functions, a bill for an injunction will lie on behalf of the persons 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 stockholders of the corporation to file a bill for an injunction. ■* But if no ques- tions 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 contravention of a public statute, equity will not interfere by injunction, the proper remedy being by information in the nature of a quo warranto. " ' DeWitt o. Hays, 2 Cal. 463. And see Mechanics etc. «. Debolt, 1 Ohio St. 591, awpra. ' Foote 11. Linck, 5 McLean, 616 ; Woolsey «. Dodge, 6 McLean, 142. Thesb cases are based upon Osborn v. TJ. S. Bank, 9 Wheat. 738, supra. ' Putnatti «. Sweet, 1 Chand. 286. ♦Id. ° Attorney General v. Utica Ins. Co., 2 Johns. Oh. 371. This was an information filed by the attorney general to restrain defendant, an insur- ance company, from conducting a banking business in violation of a statute prohibiting unincorporated banking associations. The injunction was refused, Kent, Ohancellor, observing: * * * "The right of banking was, formerly, a common-law right, belonging to individuals, 330 mjTJNCTioNS. [chap. xm. § 595. Since an exclusive franctiise can not be implied from a legislative grant in tlie absence of express words whereby it is made exclusive, it follows that a legislature may rightfidly 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 navigable canal previously incorporated, but whose charter was not exclusive in its terms; and if the termini of the railway are such as to require it to cross the canal, it will not be restrained from the erection of bridges for that purpose, i § 596. Inadequacy of the remedy at law and the avoiding of a multiplicity of suits are strong grounds for the granting of injunctions to protect statutory privileges of an exclusive nature. And a franchise to carry 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 commissioners appointed by law to carry out the purposes 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 aftthorized by law. Banking has now become a franchise derived from the grant of the legis- lature, and subsisting only in those who can produce the grant; if exercised by other persons, it is the usurpation of a privilege, for which a competent remedy can be had by the public prosecutor in the Supreme Court. I can not find that this court has any ordinary concurrent jurisdic- tion in the case. * * * "phe charge contained in the information savors, then, so much of a criminal offense, that it would require a clear and settled practice to justify the interference of this court, when that inter- ference Is not called for, in aid of a prosecution at law. The charge of an usurpation of a franchise 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 possibility 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." And see same case § 33, ante, note 4. • Tucakoe etc. v. Tuckahoe etc., 11 Leigh, 43. > Lucas ®. McBlair, 13 Gill & J. 1. CHAP. Xm.J FRAHCaHlBES. 331 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. ^ § 597. Where the existence of complainant's right or franchise depends upon a written instrument or contract, he will be required to produce such written evidence, or in default thereof to assign some satisfactory reason for his failure. If he omits to produce such evidence and fails to assign any satisfactory reason for such omission, he will not be allowed an injunction.^ § 598. 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 siifficiently injurious to warrant a decree for a perpetual injunction.* § 599. In case of doubt as to the actual legal right to the franchise in controversy, a court of equity will generally be determined in granting or withholding the injunction by considerations 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 fight 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 passengets across the river in steamboats, the question of the legal right being somewhat in doubt, an injunction vrill not be allowed in the absence of any allega- tions of irreparable mischief, or of such injury as can not be > Lucas V. McBlair, 12 Gill & J. 1. ' Hankey v. Abrahams, 28 Md. 589. ' Brooklyn etc. v. Coney Island etc., 35 Barb. 364. * People V. Third Avenue etc., 45 Barb. 68. 332 mjTOTCTiONS. [chap. xm. adequately compensated in damages at law.i The relief will also be refused under sucli circumstances lest equity may, by granting an injunction, pronounce an opinion in favor of the legal rigbt before a trial at law. But the defendants may be required to keep an account, and complainant will have liberty to apply again for an injunction. ^ § 600. Legislative grants of the exclusive right of navigat- ing rivers with steamboats have been a subject of judicial decision, and the authorities are somewhat divided as to whether a franchise of this character is entitled to protection by injunction. In the unsettled state of the authorities, it is difficult to deduce any other rule upon the subject than that the interference of equity in such cases is dependent upon the constitutionality of the grant and the right of the legislature to make such grant. Where the courts have regarded such acts as being within the scope of the legislative authority granting them, the franchise has been protected by injunc- tion and violations of the exclusive privilege have been restrained. 8 And where an act of legislature has granted the exclusive right for twenty years of navigating a river with steamboats upon certain conditions which have been complied with, thus creating a contract, any interference with the right by opposing lines of steamers will be enjoined.* In such case the state being regarded as possessed of the necessary authority to make the grant, the exercise of that authority by conferring the franchise is deemed equivalent to having established the right at law.^ Where, however, the courts have construed the legislation conferring such a franchise to be iinconstitutiohal, they have denied the right to protection in equity.^ ' Cory V. Yarmouth etc., 3 Hare, 593. "Id. " Livingston v. Ogden, 4 Johns. Ch. 48 ; In re Vanderbilt, lb. 57 ; Ogden V. Gibbons, lb. 150, affirmed 17 Johns. 488 ; North Eiver etc. «. Hoffman, 5 Johns. Ch. 300. * Moore v. Veazie, 31 Maine, 360. •Id. ' Gibbons v. Ogden, 9 Wieat. 1 ; North River etc. v. Livingston, 8 Cow. 713. OHAP. Xm.] FEAKCmSES. 333 § 601. 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 reserved for the grant. And while, as we have seen, the jurisdiction by injunction is freely exercised for the protection of franchises, the grant by the government of a monopoly in the exercise of an ordinary business over which the govern- ment has no control, without any consideration and to the exclusion of all others desiring to engage in such business, win not be protected by injunction. Thus, where by an amendment to the charter of a gas company authorizing it to lay its pipes through the streets and public grounds of a city, it is provided that the right shall be exclusive except as against siich other persons as may be authorized by legislature, such provision is held to constitute a monopoly which is not entitled to protection in equity and an injunction wiU not be allowed to prevent another company from laying down its gas pipes. ^ Nor will the fact that pending the controversy ' Norwicli etc. v. Norwich, etc., 25 Conn. 19. Tlie distinctions between a franchise, sucli as is entitled to the protection of equity, and a mere monopoly of a particular trade or branch of business, are clearly defined in this case, which may be regarded as the leading American case upon the subject. The complainant, the Norwich Gas laght Company, sought to enjoin the Norwich City Gas Company from distributing gas through the streets of the city, and from any further use of the streets for that purpose. Complainant's right to relief rested upon an amendment to its charter which provided as follows: "The right of the Norwich Gas Light Company to lay down gas pipes, and to erect gas posts, burners and reflectors in and through the streets, alleys, lanes, avenues and public grounds of the city and town of Norwich, and to distribute gas through the same for the purpose of lighting said streets, lanes, alleys, avenues, or public grounds, and the stores, dwellings, and other buildings situated thereon, is and is hereby declared to be exclusive, as against any and all persons or corporations, except such persons or corporations as may here- after b'e invested by the general assembly of this state, with power to use said streets, lanes, alleys, avenues, and public grounds for the same purpose. Provided, that nothing in this act contained shall prevent any 334 iNJUNonoKis. [chap. xm. complamants have bougM a parcel of land so situated with reference to tlie public Mghway that defendants are obliged to individual, corporation, or society from making or using gas on their own premises, and that the price of gas manufactured by said Norwicli Gas Liglit Company sliall at no time exceed four dollars per thousand cubic feet." Hinman, J., delivering the opinion of the court, used the following language with i-eference to the exclusive right attempted to be conferred by the amendment to the charter above quoted: "Has then the amend- ment to the plaintiffs' charter the effect of conferring on them aa exclusive property franchise, in the streets and public places in the city of Norwich, for the purpose of laying pipes through which to distribute gas ? The plaintiffs insist that it has this effect, and they say it confers on them a franchise similar, in all respects, to the franchise which is sometimes granted to a ferry or bridge corporation, prohibiting any other ferry or bridge within certain specified limits. A franchise is defined by Blaokstone to be a royal privilege or branch of the crown's prerogative, subsisting in the hands of a subject. Being derived from the government, it is always supposed to have been originally granted by the govern- ment. It is property which may be transferred by sale or devise, and it will descend to heirs like other property; and the owner has the same security for its protection, under the constitution, as has the owner of any other property. Enfield Toll Br. Co. ■c. Hartford & N. Haven R. R. Co., 17 Conn. R. 40. As this is a species of property derived by grant from the government, it follows that if the government has no power to make the grant, either because it is contraiy to public policy, or because the government had no title to the thing granted, no title will be conveyed to the grantee. This grant appears to have been made without any consideration whatever for it. The plaintiffs are under no obligation to make gas, or to suffer the gas which they may make to be used. They are restricted in the price of what they do sell, but there is no provision that they shall sell to all, or to any who may apply for it, or to so many as they may be able to accommodate. In this respect there is a broad distinction between this and the grant of a bridge or ferry franchise. The most valuable interest in bridge and ferry grants is the right to take toll, and this right is never granted unless it is founded on an adequate considera- tion, which in the case of a ferry consists in an obligation to keep boats for the transportation of passengers, etc., and in the case of a bridge in erecting and keeping the bridge in repair, for the accommodation of all who may have occasion to use it. And we are told that the right of the crown to authorize the collection of tolls can not be imposed on the public, unless upon terms of this sort. 3 Steph. Bl. Com. 16. And if the right to tolls can not be granted, except upon the terms of an adequate consideration, in the facilities furnished to the public, ought the public, or any portion of it, to be deprived of the ordinary means of obtaining gas, unless the parties who claim an exclusive right to use CHAP. XniJ FEAHCEtlSES. 336 lay their main pipe througli it, authorize an injunction in favor of complainants ; their voluntary purchase of the land 'pendente lite does not entitle them under such circumstances those means, are under an obligation to furnisli it ? Again, it is tlie duty as well as the prerogative of the government to provide necessary and convenient roads and bridges; and to enable it to accomplish this object, it has everywhere what is called 'the right of eminent domain;' the right over individual estates to resume them for this and other public purposes. Such a prerogative connected with a corresponding duty, with the power to execute it by the exercise of the right of eminent domain, necessarily implies that it belongs to the government to determine what improve- ments are of sufficient importance to justify the exercise of the right, and when and how it shall be exercised; and if a particular bridge, or ferry, is considered sufficient for a particular locality, it may stipulate that within such reasonable limits, the particular bridge or ferry tolls shall not be diminished by any other improvement of the sort. But it is no part of the duty of the government to provide the community with lights in their dwellings, any more than it is to provide them with the dwellings themselves, or any of the necessaries or luxuries which may be deemed important to the comfort or convenienSe of the community. And if it be assumed that there would be no impropriety in the lighting of the streets under the control and direction of the sovereign power, this would be merely as a regulation of police, or an incident to the duty to provide safe and convenient ways. And in this case the power to provide for-lighting the streets is of no importance, because nothing was done to secure the object, imless the plaintiflFs chose to assume it; and whether they would do so would probably depend upon whether it could be made profitable. As, then, no consideration whatever, either of a public or private character, was reserved for the grant, and as the business of manufac- turing and selliug gas is an ordinary business, like the manufacture of leather, or any other article of trade, in respect to which the 'government has no exclusive prerogative, we think, that so far as the restriction of other persons than the plaintiffs from using the streets for the purpose of distributing gas by means of pipes, can fairly be viewed as intended to operate as a restriction upon its free manufacture and sale, it comes directly within the definition and description of a monopoly; and although we have no direct constitutional provision against a monopoly, yet the whole theory of a free government is opposed to such grants, and it does not require even the aid which may be derived from the bill of rights, the first section of which declares ' that no man or set of men are entitled to exclusive public emoluments or privileges from the com- munity,' to render them void. The statute of 31 James I., 0. 3, which declares such monopolies to be contrary to law and void, except as to patents for a limited time, and printing, the regulation of which was at that time considered as belonging to the king's prerogative, and except, 336 iNjuNcrnoNS. [chap. xm. to the favorable consideration of a court of equity, and the injury, if any, can be compensated by damages in an action of trespass. 1 also, certain warlike materials and manufactures, the regulation of wMch for obvious reasons may fairly be said to belong to tke king, has always been considered as merely declaratory of the common law. 4 Bacon's Abr. p. 764, Tit., Monopoly ; 4 Blk. Com. 160 ; Hindmarch on Patents, chap. 2, p. 7, et seg. A monopoly, in the sense which this exclusive grant may be said to be such, is defined by Bouvier as ' an institution or allowance by a grant from the sovereign power of the state, by commission, letters patent, or otherwise, to any person or corporation by which the exclusive right of buying, selling, making, working or using of anything is given.' While then we are not called upon to question the authority and power of the legislature to grant to the plaintiifs the right to lay down their own pipes for the distribution of gas through the streets for their own private purposes, we think, considering that the streets, subject to the public easement, are private property, that it does not possess the power to exclude others from using them for similar purposes. And while we do not question its power to provide that the breaking up of the streets for this or other purposes shall be a public nuisance, we do not think the plaintiffs have such a special interest in the streets as will enable them to ask for an injunction against it. As was remarked in the case against the Sheffield Gas Consumers' Company, above cited, the plaintiffs, having acquired a right to lay their pipes in the streets, are, in truth, seeking through this medium a higher and better right — a right to preclude all others from laying down their pipes. This, we think, they are not entitled to do." ' Norwich etc. v. Norwich etc., svpra. OHiF. XIV J PATENTS. 337 CHAPTEE XIV. OF INJUNCTIONS AGAINST THE INFRINGEMENT OF PATENTS. I. NaTITEB Airo GSOUNDS OF THE JUKISDICTION. II. Effect of pkiob Adjttdications. III. CONSIDEKATIOKS QOTEKNING THE COUBT IN GBANTQfG THE REUEIf. I. Natueb and Geoixnds of the JuRISDianON. § 608. Object of the relief; the forum. 603. Judicial discretion ; conditions imposed. 604. Not essential that right he established at law. 605. Province of the writ ; relative convenience and inconvenience. 606. Right of patentee must be free from doubt. 607. Controversy as to the right will bar relief. 608. The presumptions necessary to warrant an injunction. 609. Acquiescence by the public ; exclusive enjoyment. § 602. The jurisdiction of courts of equity to restrain the infringement of letters patent for inventions, is exercised for the prevention of irreparable injury, vexatious litigation and a multiplicity of suits, as well as for affording protection to the rights of inventors, i The right to interfere by injunction in this class of cases is, in this country, exercised only by the United States courts, the state courts being devoid of jurisdic- tion. ^ And the preventive relief by injunction is granted ir aid of the legal right whose protection is the ultimate object sought.* ' 2 Story's Eq. § 930. » Parkhurst v. Kinsman, 2 Halst. Ch. 600. » Bacon v. Jones, 4 Myl. & Cr. 436. 22 338 DiJDNcnoNS. [ohap. xm. § 603. Sutstantiallj the same rules prevail in determining applications for preliminary injunctions in patent causes as in otlier eqiiitable cases, and the granting of the relief is a matter of sound judicial discretion, to be determined by the circumstances of the case, and where much greater injury is likely to result to complainants from withholding the relief than to defendants from granting it, it may be allowed. ^ And while the granting of preliminary injunctions is always a matter of judicial discretion, a somewhat wider latitude is allowed the court in the exercise of this discretion where the jurisdiction is invoked against the infringement ol patents than in ordinary cases. Thus, the court may impose condi- tions upon the parties, either for granting or refusing the relief, and may examine into the state of the litigation, the nature of the improvement and the extent of the infringement, as well as the comparative inconvenience to the parties. ^ ' Irwin 1). Dane, 4 Pish. 359. "Tlie granting of a prelinainary injunc- tion," Bays Bloclgett, J., " is a matter of judicial discretion to be determined by the circumstances under which, the case is presented, and inasmuch as in this case I think that much more injury would or might result to the complainants from a refusal of the injunction than to the defendants by granting it, I have concluded to grant it. The aspect of the case is simply and briefly this : The complainants are the owners of patents, and are man- ufacturing under them ; have entered upon the manufacture of the patented article largely, and engaged in it for over three years. The defendants had, just prior to the commencement of this suit, also entered upon the manufac- ture of the competing article, but, according to the proofs, have invested very little money in it; had acquired no reputation for their manufacture in that line, although in other branches of their business they are largely engaged. I think that they can better afford to await the issue of the con- troversy here, than even to take the chances of the result of a trial, and perhaps be called on to respond in damages." 'Furbush «. Bradford, 1 Fish. 317. The court say, Curtis, J.: "In acting on applications for temporary injunctions to restrain the infringe- ment of letters patent there is much latitude for discretion. The applica- tion may be granted or refused unconditionally, or terms may be imposed on either of the parties as conditions for making or refusing the order. And the state of the litigation, where the plaintiff's title is denied, the nature of the improvement, the character and extent ot the infringement complained of, and the comparative inconvenience which will be occa- sioned to the respective parties by allowing or denying the motion, must all be considered in determining whether it should be allowed or refused imd if at all, whether absolutely, or upon some and what conditions." CBAV. XTf.] PATENTS. 339 § 604. The doctrine was formerly maintained by tlie English Court of Chancery, that an injunction would not be allowed against the infringement of a patent until the right had been satisfactorily established at law, but it would seem that the jurisdiction may now be exercised on showing color of title, coupled with an assertion 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, and not being exercised merely as ancillary to a court of law, these courts do not in all cases require a verdict at law upon the title before granting even a final injunction. 2 And the modern practice may be regarded as settled, that where the rights under the patent are clear, and the question of defendants' infringement is free from doubt, the patentee will not be compelled in the first instance to proceed at law, especially after the use of his invention for a considerable time without controversy, but he may at once apply to the equity side of the court for relief. ^ And the allowance of a jury trial to test the question of the alleged infringement, on an application 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 discre- tion of the court.* § 605. The province of a preliminary injunction in a patent cause, is to preserve the rights of the patentee pending the litigation of his title. If his title has already been fully established, or is so clear as to preclude a reasonable doubt of its validity, a preliminary injunction may be granted, as in the ease of a final injunction, regardless of the injury to defendant; but the ease must be substantially free from doubt to warrant this course.^ And where the granting of the writ ' Universities v. Eicliardson, 6 Ves. 689. ' Sickles V. Gloucester etc., 1 Fish. 223 ; Sanders ■». Logan, 3 Fish. 167. " Potter V. Muller, 3 Fish. 465 ; Shelly v. Brannan, 4 Fish. 198. * Brooks V. Norcross, 3 Fish. 661 ; Potter «. Fuller, lb. 251 ; Motte « Bennett, lb. 643. And see Motte v. l^ennett for an exhaustive history of the jurisdiction of equity in this class of cases, both in England and America. * Morris v. Lowell etc., 3 Fish. 67. And see Howe ®. Morton, 1 Fish. 586 340 INJUUCTIONS. [chap. XIV. would be more likely to produce than to prevent irreparable miscbief, neither an absolute nor a conditional injunction will be allowed. 1 In all such cases, there being an element of discretion which enters largely into the consideration of the motion for a preliminary injunction, the patentee is only entitled to the best judgment of the court upon a question of judicial discretion, and not absolutely to the injunction on any given state of facts.® § 606. An interlocutory injunction against the infringe- ment of a patent will not be allowed unless complainant's title and defendant's infringement are either admitted, or are so clear and palpable that the court can entertain no doubt on the subject.^ And whenever, upon the facts presented, a fair and reasonable doubt exists as to whether defendant has actually been guilty of an infringement, or where the right is, in point of law, at least doubtful, and the questions involved are exclusively for a jury, or where a reasonable doxibt exists as to the originality and novelty of complainant's invention, or as to the substantial identity between the articles manufactured by defendant and those of complainant, a pre- liminary injunction will be withheld.* So if it does not satisfactorily appear that complainant is the iirst and sole inventor of the improvements claimed by his patent, the court will not interfere in the first instance. ° And where a preliminary injunction has already been granted, but the evidence is doubtful as to the originality of the patent, the injunction may be dissolved, defendants being required mean- while to keep an account of their sales. ^ § 607. So long as there is a substantial controversy as to the equities of the parties, the court will not dispose of those ' Day V. Candee, 3 Pish. 9. ' Potter V. Whitney, 3 Fish. 77. " Parlcer i>. Sears, 1 Pish. 93; American etc. Co. v. City of Elizabeth, 4 Fish. 189. ■* Dodge «. Card, 3 Fish. 116; Sullivan v. Redfleld, 1 Paine 441 ; Winans V. Eaton, 1 Fish. 181. s Thomas «. Weeks, 2 Paine, 93. « Sheriff v. Coates, 1 Russ. & M. 159. CHAP. XIV. j PATENTH. 341 equities on a motion for an interlocutory injunction, wliich does not permit the questions involved to be inquired of and defined accurately according to the approved usages of chancery, and interlocutory relief will be refused, especially where the granting of the application might seriously imperil complainant's rights, and its refusal will not endanger them. ^ And if the patent itself is of recent date, and tlie specifica- tions are obscure and the proof of infringement is meagre and unsatisfactory, an injunction will not be allo^ved even upon final hearing. ^ But in such case the bill may be retained and complainant required to bring an action at law within a reasonable time. ^ § 608. The presumptions in favor of the novelty of a patent, suftlcient to constitute the foundation for a prelim- inary injunction, may be some or all of the following: the oath of the patentee that he was the original inventor; the granting of -the patent after full investigation; undisturbed enjoyment by the patentee of the exclusive rights granted by the patent, coupled with acquiescence on the j)art of the public; direct adjudications at law or in equity establishing its validity, and prior injunctions restraining its infringe- ment. "When such grounds of presumption co-exist in favor of the novelty of a patented invention, an injunction will not be refused, or, if granted, will not be dissolved except upon the most conclusive evidence impeaching the patent.* § 609. Acquiescence on the part of the public in com- plainant's u:se of his patented invention is an important consideration in determining a motion for an injunction against the infringement of a patent. And where the party aggrieved can show an undisturbed user and possession for a reasonable time, he is entitled to the relief. ^^ And this exclu- ' Smith V. Cummings, 1 Fish. 152. " Muscan etc. v. American etc., 1 Fish. 330. 'Id. " Hussey v. Wliitely, 3 Fish. 130. And see Orr. v. Littlefield, 1 Woodb. & M. 13; Ogle v. Edge, 4 Wash. C. C. 584; Doughty «. West, 2 Fish. 553, Grover etc. Co. v. Williams, 2 Fish. IBS. « Orr. 1). Littlefield, 1 Woodb. & M. 18 ; Hill v. Thompson, 3 Meriv. 622 ; Stevens v. Keating, 3 Ph. 333; Ogle v. Edge, 4 Wash. C. 0. 584; Foster t. 342 rNJTTNcnoNS. [chap. xiv. sive possession, if of sufficient duration, may warrant the relief, even in the absence of any previous adjudications in favor of the validity of the patent, i "While the cotirts have not attempted to fix any definite rule as to the length of time during which the exclusive use and enjoyment of the right must have been continued, it must be sufficient to raise a presumption in favor of the validity of the patent.^ And such presumption is greatly strengthened by former adjudica- tions in support of the patent. ^ But where the allegations in Moore, 1 Curt. C. C. 379 ; Isaacs b. Cooper, 4 Wash. C. C. 259 ; Wasliburn V. Gould, 3 Story, 156, 169 ; Bickford v. Skewes, Web. P. C. 211 ; Good- year V. New Jersey etc., 1 Pisli. 626; Potter v. Holland, lb. 882. "The reason for the presumption in favor of the validity of the grant is the acquiescence of the public in the exclusive right of the patentee, which, it may reasonably, be assumed, would not exist unless the right was well founded." Story, J., in Foster ■». Moore, supra. The principles upon which a court of equity will interfere for the protection of a patent before the right has been established at law, are well stated by the Vice Chan- cellor in Caldwell «. Vanvlissengen, 9 Hare, 415, as follows : " The ques- tion whether the court will interfere to protect a patentee before he has established his right at law, or will suspend its interference until the right at law has been established, appears to me to depend upon very simple principles. It is part of the duty of this court to protect property pending litigation; but when it is called upon to exercise that duty, the court requires some proof of title in the party who calls for its interference. In the case of a new patent, this proof is wanting; the public whose interests are affected by the patent, have had no opportunity of contesting the validity of the patentee's title, and the court therefore refuses to inter- fere until his right has been established at law. But in a case where there has been long enjoyment under the patent, (the enjoyment of course including use,) the public have had the opportunity of contesting the patent ; and the fact of their not having done so successfully affords, at least prima facie evidence tliat the title of the patentee is good ; and the court therefore interferes before the right is established at law. In the present case, I think that the plaintiffs have proved such a case of enjoy- ment under the patent, and of their title having been maintained at law against the several attempts which have been made to impeach it, that the court is bound at once to interfere for their protection, unless there are other sufficient grounds for withholding its interference." ' Goodyear v. New Jersey etc., 1 Fish. 626. = Potter 1). Muller, 3 Fish. 465. And it has been held that such posses- sion for eight years was sufficient evidence, prima facie, to warrant an injunction previous to a trial at law. Foster v. Moore, 1 Curt. C. C. 279. ' Potter V. Muller, 3 Fish. 465 : Potter ®. Holland, 1 Fish. 383. CHAP. XIV.] PATEN'I-S. 343 the bill, of exclusive possession by complainant, are met and avoided by allegations and proof of a more peaceable and exclusive possession by defendants, under patents purchased and used by them, no injunction will be allovFed.^ II. Effect of peioe Adjudications. § 610. Prior adjudications strong ground for interference. 611. Wlien conclusive. 612. EflFect of prior adjudications on extension of patent. 613. Judgments 'bj agreement ; award. 614. Prior adjudication not always conclusive. 615. Reissue. § 610. Previous adjudications in favor of the validity of the patent whoso protection is sought by injunction, afford strong foundation for the relief, and are entitled to great weight in determining the application. ^ And where com- plainant relies upon prior adjudications in support of his patent as a ground for relief against its infringement, though it is competent for defendant to show that the title was not fairly in controversy in the former cases, or that some material fact was overlooked, yet the considerations which would justify the court in renewing the discussion of the patentee's title, wnich is already res adjtidicata, should be such as, if presented to the court after the trial at law, would have sufficed to set ' Parker a. Sears,' 1 Fish. 93. "Orr V. Littlefield, 1 Woodb. & M. 13; Woodwqrtli «. Hall, lb. 348; Woodworth ». Edwards, 3 "Woodb. & M. 130 ; Gibson v. Van Dresar, 1 Blatch. 533; Potter v. Holland, 4 Blatch. 338; Goodyear i). New Jersey etc., 1 Fish. 636 ; Parljer v. Brant, lb.. 58 ; Potter v. Fuller, 3 Fish. 251 ; Potter V. "Wliitney, 3 Pish. 77 ; Conover ». Mers, lb. 38B ; Goodyear «. Evans, lb. 390; Goodyear «. Berry, lb. 439; Goodyear «. Rust, lb. 456. Thus, it is said that "where complainant has made out, not merely a grant of the patent, but possession and use and sale under it for some time undisturbed, and beside this a recovery against other persons using it, the courts have invariably held that such a strong color of title shall not be deprived of the benefit of an injunction, till a full trial on the merits counteracts or annuls it." Per "Woodbury, J., in Orr v. Littlefield, supra. 344 INJUNCTIONS. [chap. siv. aside the verdict. * And while decisions in former suits con- cerning the same patent are binding only upon the parties to thoso suits, yet such adjudications, in so far as they bear upon the points actually in issue between other parties, will be overruled with extreme reluctance. ^ § 611. Although it is the duty of the court, upon the hearing of the motion for a preliminary injunction, notwith- standing the fact of previous adjudications having sustained the validity of the patent, to examine the case anew, if defendant was not a party to the former proceedings, yet when the (juestions of fact are identical the court must recog- nize such decisions as entitled to very great weight in deter- mining the application. 3 And where the patent has been sustained on a full hearing against other defendants, and the infringement is clear, especially where the precise form of machine used by defendant has been previously passed upon by the court on the question of infringement, complainant is entitled to have his rights promptly protected by injunction.^ And where the validity of complainant's patent has been established by repeated adjudications, and it is manifest that neither the public nor the defendants will suffer any incon- venience from the issuing of the writ, the fact that it is not alleged that defendants are insolvent, or that complainants would suQ'er irreparable injury by waiting until a final hearing, constitutes no bar to the relief ^ § 612. The fact that the patent is extended after the adju- dications sustaining its validity, does not aifect the application of the rule under consideration. Thus, where a patent has been sustained during its original term by four different adju- dications, one of them being against the same defendant for the use of the same process involved in the appplication for the injunction, after the extension of the patent the novelty ' Parker «. Brant, 1 Fish. 58. ' Potter V. Fuller, 3 Fish. 351. ' Potter V. Whitney, 3 Fish. 77. And see Goodyear v. Evans, lb. 390; Goodyear v. Berry, lb. 439; Goodyear v. Rust, lb. 456. * Conover v. Mers, 8 Fish. 386. ' Goodyear «. New Jersey etc., 1 Fish. 636. CEtAP. XIV.] PATENTS. 345 of tlie invention and the validity of tlie patent are regarded as sufficiently established by the prior adjudications.! But the existence of a substantial doubt as to the identity of the inven- tion covered by the reissue with that contained in the original, is sufficient ground for denying the motion to restrain the infringement of the reissue. ^ § 613. The application of the rule giving effect to prior adjudications, is not affected by the fact that the prior judg- ment was recovered 'by agreement of the parties, no fraud or collusion being shown. ^ And if the result of a trial at law to determine the right is satisfactory to a court of equity, it may at once interfere for the protection of the patent, even though the defendant is about taking further steps at law.* And an award sustaining the validity of the patent, on a reference being had in a trial at law, is entitled to the same consideration as a verdict.^ § 614. Notwithstanding the great weight which, as we have already seen, the courts attach to prior adjudications sustaining the validity of the patent, the recovery of a ver- dict for plaintiff, in an action at law upon a patent, is not necessarily eoncliisive upon his right to an injunction, and the court may upon such application consider the true interpreta- tion of the patent, irrespective of the former verdict,' espe- cially where a writ of eri-or is pending to the proceedings at law.'' 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 ren- ' Tilghman ii. Mitcliell, 4 Fisli. 615. And see Clum «. Bre-sver, 3 Cnit. C. C. 506, where the same doctrine is maintained, though the relief was refused on otlier grounds. " Popponhusen v. Palke, 4 Blatch. 493. « Orr «. Littlefield, 1 Woodb. & M. 13. * Boulton 1). Bull, 8 Ves. 140 ; Bridson a. Benecke, 12 Beav. 7. " Lister v. Eastwood, 36 L. T. 4. « Many v. Sizer, 1 Pish. 31. ' Day V. Hartshorn, 3 Fish. 33. 8 Parker v. Brant, 1 Fish. 58. 346 ' rajuNCTiONS. [uiiap. xrv. dered upon claims so inconsistent and contradictory tliat the court can not say witli certainty what is and what is not an infringement of the patent, the injunction will be refused.^ § 615. Where the validity of a patent has been sustained by a decision at law during its original term, and thereafter a reissue is obtained covering a wider ground than that adjudi- cated in the original, all that lies between the limits of the original and of the reissue is disputed territory. And if in such case the infringement which it is sought to enjoin lies wholly within that disputed territory, the application for relirf will be denied.^ ' Parker v. Sears, 1 Fish. 93. ' Poppenliusen «. Falkc, 3 Fish. 181. CHAP. XIV.J PATENTS. 347 iii. oonsroeeations governing the couet in geantinq tkb Eelief. § 616. Defendant's bona fides; effect of patent to defendant. 617. Injunction not granted on patent alone. 618. Question of hardship will not stay the writ in a clear case. 619. Prima facie infringement must be made out. 620. Aquiesoence of patentee may har relief. 631. Defendant's solvency ; damages at law. 632. Security from defendant in lieu of injunction. 633. Account. 624. Trial at law. 635. Prior use ; all the grants need not he infringed. 636. Mere denial in the answer not a har to the relief. 637. "Writ not necessarily dissolved on answer. 638. Licenses. 639. Due diligence necessary in assertion of the right. 630. Apprehensions of future infringement ground for relief. 631. Writ not refused because of subsequent patent to defendant. 633. Evidence required. 633. Parties to the bill. 634. Territorial jurisdiction. 635. Writ may be granted after expiration of patent. 636. Dissolution. 637. Penalty ; omission in bill. ^38. Process may be protected though not patented. 639. Jurisdiction exercised over foreigners. 640. Violation and punishment thereof. § 616. Where defendant is acting in good faith under let- ti.-s patent covering his process of manufacture, he has a pi-ima facie right to continue, and the court will not, upon ex parte affidavits, on an application for a preliminary injunc- tica,- decide the whole merits of a lyona fide issue and thus anticipate the final judgment upon the legal questions involved. 1 And if in such ease defendant shows a belief thai he has a jiist defense, and has not wilfully pirated com- plainant's invention, the court will require a case of evident ' Good/ear «. Dunbar, 1 Fish. 473. 348 mjTiNcrnoNS. [chap. rtv. mistake of law, or of fact, or both, in tlie defense tlius inter- posed, before it will resort to the remedy by injiinction.i But the fact that defendant, after the alleged infringement, has received a patent for the article manufactured by him, will not prevent an injunction if the infringement is satisfac- torily established, since the granting of a subsequent patent merely serves to indicate the opinion of the oflicers granting it, upon an ex parte examination of the subject, and is by no means conclusive.^ 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 mates out a strong 'prima facie case for an injimction, 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 oince and upon his own affidavit, he having slept upon his rights for a long period of years.* § 617. 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 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 appara- tus 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 tem- ' Goodyear v. Dunbar, 1 Fish. 472. " Morse etc. v. Esterbrook, 3 Fisli. 515. « Siokols «. Tileston, 4 Blatcli. 109. * Potter 0. Stevens, 3 Fisli. 163. ' Hovey t>. Stevens, 1 "Woodb. & M. 390 ; Toppan «. National Co., 4 Blatch. 509, 2 Fisli. 190. « Scrrell d. Collins, 4 Blatcb. 61; Toppan v. National Co., lb. 509. And aee North etc. ». Kershaw, lb. 70; Muscan etc. ». American etc., lb. 174, CHAP. XIV.] PATENTS. 349 porary injunction, to give bond with approved security to account and pay sucli sum as the court may finally decree. ^ § 618. While considerations of. the relative hardship and inconvenience to the respective parties, by granting or with- holding 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 previous adjudication, will the court refuse to be governed by consider- ations of hardship to defendant from granting 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 variety of eases, thereby rendering his patent comparatively valueless. ^ § 619. 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, ^ prima faoie case of infringement must be made out before equity will interpose.* But if the case be free from doubt in other respects, the relief will not be refused because the patent is a recent one.^ § 620. Acquiescence of the patentee in the use of his inven- tion is sometimes an important element in determining an application for a preliminary 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 acqui- escence, without objection and without demand of compen- sation, is regarded as conclusive evidence that the continuance ' Howe «. Morton, 1 Fish. 586. » Sickels «. Tileston, 4 Blatch. 109; Potter «. Fuller, 3 Fish. 251; Ely a. Monson etc., 4 Fish. 64. ' Ely «. Monson etc., supra. * Hill «. Thompson, 3 Meriv. 626. » Clark V. Ferguson, 1 GiflF. 184. ' Parker «. Sears, 1 Fish. 93 ; Goodyear «. Honsinger, 3 Fish. 147 350 INJtTNCnONS. [chap. XIV. of ihe 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 inj unction, 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 considera- tion by the court, and although it is satisfied of the validity of the patent, it will not interfere by an absolute and uncondi- tional injunction, but will grant a temporary writ, with leave to defendant to come in and have the same dissolved upon giving security to complainant.^ § 621. Defendant'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 patented 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 compe- tition. ^ 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 injunc- tion is not the proper remedy to enforce payment of the money, since the measure of damages being a certain and fixed sum, ample redress can be had at law.* § 622. Although defendant's machine may be an infringe- ment of that of complainant, yet if it contain other and valuable improvements 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 com plainant as an account of profits with security tor their pay- ment, the injunction will be withheld on condition of defendant's accounting and giving security for payment.^ ' Parker v. Sears, 1 Fish. 93. ' Goodyear ■». Honsinger, 3 Fish. 147. ° Morris ■». Lowell etc., 3 Fish. 67. ■• Sanders ®. Logan, 3 Fish. 167. And see Livingston. «. Jones, lb. 207. " Stainthorp i). Humiston, 2 Fish. 311. And see Howe v. Morton, 1 Fish. 586. CHAP. Xrv.] PATENTS. 351 And where tlie validity of complainant's patent is denied on tlie 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 enjoined from constructing a single machine merely for his own use, if he gives security to complainant for all loss and damage that may result to him by reason of the construction and use of the machine.! § 623. The jurisdiction of the United States courts in this class of cases being derived wholly from statute, the English rule that the account is strictly incident to the injunction, and that where an injunction is refused an account will be denied, is not applicable in this coimtry.^ And if the patent has expired between the time of filing the bill and the hearing, the court may direct an account, though no injunction will be allowed against the future use of the article.* § 624. Nothwithstanding the rule is well established in England, that a final and perpetual injunction will not be granted where the answer denies the validity of the patent, without sending the parties to law to decide that question,* yet in this country the rale is not inflexible, and it rests in the discretion of the court to grant the relief, with or without a trial at law.^ 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.^ ' Morris v. Shelbourne, 4 Fish. 377. ' Sickles «. Gloucester etc., 1 Fish. 232. " Imlay v. Norwich etc., 4 Blatch. 227. * Bacon ». Jones, 4 Myl. & Cr. 436 ; Eenard v. Levinstein, 2 Hem. & M. 628 , 'Goodyear v. Day, 2 Wal., Jr. 283; Buchanan ®. Howland, 5 Blatch. 151. « Ogle ®. Edge, 4 Wash. C. C. 584. Washington, J., says : " I take the rule to be in cases of injunctions in patent cases, that where the bill states a clear right to the thing patented, which together with the alleged infringement is verified by afBdavit, if he has been in possession of it by having used or sold it, in part or in the whole, the court will grant an injunction and continue it till the hearing or further order, without sending the plaintiff to law to try his right. But if there appear to be a reasonable doubt as 352 rNJTJNcnoNS. [chap. xiv. § 625. On an application to enjoin the infringement of a patent, tlie 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 infringed, but the injunction wiU issue for the violation of a portion of them.^ § 626. Mere denial by answer of the equity of the bill does not prevent the court from looting into the law and the facts of the case, and where the right depends upon the inter- pretation to be given to the letters patent, the court Avill look into the instrument and construe it, notwithstanding the answer denies the right to the relief.* A.nd where the infringement of the patent is clear, and the right to the injunc- tion manifest, it will not be withheld because of defendant's offering security for damages and an account of sales. ^ § 627. An injunction in patent cases is not designed to delay or impair the right of trial by jury, but rather to make the prima fade title prevail until such trial can be had.^ Hence, where an injunction has been granted on proof of former recoveries and long possession, it will not necessarily be dissolved on an answer denying the validity of the patent, but will be continued to allow an issue at law upon that question.' Nor will the injunction be dissolved because of doubts as to the validity of the patent, growing out of errors to the plaintiff's right, or to the validity of the patent, the court will require the plaintiff to try his title at law, sometimes accompanied with an order to expedite the trial, and will permit him to return for an account in case the trial at law should be in his favor." ' Sargent v. Seagrave, 3 Curt. C. 0. 553. ^ Toppan «. National Co., 4 Blatch. 509. ' Potter D. Holland, 4 Blatch. 338, 1 Fish. 383. * Clum «. Brewer, 3 Cui-t. C. C. 506. ' Tracy v. Torrey, 3 Blatch. 375. « "Woodworth v. Rogers, 3 "Woodb. & M. 135. ' Orr 11. Merrill, 1 "Woodb. & M. 876. CHAP. iOV.] PATENTfl. 353 on the part of tlie officers issning it, where steps have been taken in congress to correct such errors by appropriate legislation. 1 § 628. Where an injunction is in full force against the use of a patented machine, the court wiU not allow its use by parties claiming under the patentee of the invention enjoined.* But, though a provisional 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 misappre- hension of his rights, and has been discontinued, the injunction will be withheld. ^ And where, by the terms of the license, a forfeiture 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 equal.* And where it appears by the answer that defendant was acting under a license from complainant, the injunction will be dissolved.* § 629. To obtain the protection of equity against infringement, due diligence must be used in the assertion of the right. And if complainant has encouraged or acquiesced in the infringement, or has permitted the erection of works and large expenditures 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 ' "Woodworth v. Hall, 1 Woodb. & M. S89. * Woodworth «. Edwards, 3 'Woodb. & M. 120. « Wilson V. Sherman, 1 Blatch. 536. * Woodworth «. Weed, 1 Blatch. 165. It may well be doubted, however, whether this rule can be maintained consistently with the established principle that equity will never interfere where there is adequate remedy at law. = Clum «. Brewer, 2 Curt. C. C. 506. » Goodyear d. Bourn, 3 Blatch. 266. ' Bacon e. Jones, 4 Myl. & Or. 436 ; Bridson s. Benecke, 12 Beav. 7 ; Bovill IB. Crate, 1 L. R. Eq. 388; North v. Kershaw, 4 Blatch. 70; Sykes v. Man- hattan, 6 Blatch. 496. 23 354 rajTOtcrnoNS. [celap. my. with fall fcQow]edge 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. ^ § 630. It is not necessary to the issuing of the writ that the wrong should actually have been committed, but reasonable grounds for belief that an infringement may occur in the future, will warrant the injunction, where the title has been established at law.^ And it will not suffice for defendants to answer that what they have done since the finding of the verdict was not in violation of complainant's right; they should state explicitly that they do not intend to commit any ' North V. Kershaw, 4 Blatch. 70. " Poppenhusen v. New York, 4 Blatch. 184. This was a bill for an injunction where a verdict had been had against the defendants in the same court in an action at law upon the same patents. The hill alleged violation of complainant's rights after the verdict, and that defendants would continue such violation in future, unless restrained hy injunction. IngersoU, J., delivering the opinion of the court, says: "The writ of injunction is a remedial writ in the nature of a prohibition. The object of the present motion for an injunction is to prevent the commission 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 necessary, before a writ to prevent a vrrong can issue, that the wrong should actually have been com- mitted. If it were, the remedy by injunction would be a very inadequate one. If the rights of a party, under a patent, have been fully and clearly estab- lished, and an infringement of such rights is threatened, or, if, when they have been infringed, the party has good reason to believe they will continue to be infringed, an injunction 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 established, to the satisfaction of the court, and the infringement of right made clear, such a trial, resulting in such a verdict, is suflacient, without any other proof to authorize the court to grant an injunctiem to prevent any future violation of right. Such a trial, with such a result, affords suflBcient proof, that, in future, there will be an infringement, unless such infringement ia restrained by injunction. It is, under such circumstances, almost 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." CHAP. XIV. J PATENTS. 365 infringement in the future. * 'Not will the fact that since the commencement of suit defendants have ceased to infringe, and do not threaten further infringement, prevent the issuing of a preliminary injunction, if a necessity for the virrit existed at the time of filing the bill, complainants alleging that they apprehend a continuance of the infringement. In such cases the patentee will not be compelled to rest his equities upon the mere assertion of defendants that the infringement shall not be repeated, and the court will impose the necessary restraint to prevent a repetition of the injury. ^ § 631. Complainant's patent being fully established at law, and the infringanent being clearly proven, the injunction will not be refused because of defendant's reliance upon a subse- quent patent to himself, which contains on its face satisfactory 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 invention is denied, and the question is involved in considerable doubt, the injunction will be withheld until a trial at law.^ § 632. Upon the application for the writ, it must appear, either in the sworn bill, 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 patent.' And on a motion for a dissolution of the injunction, upon affi- davits, 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 ' Poppenhusen v. New York etc,, 4 Blatch. 184. " Potter V. Crowell, 1 Abb. U. S. E. 89, 3 Fish. 112 ; Jenkins v. Greenwald, 2 Pish. 37. • Goodyear v. Evans, 6 Blatch. 121.. • Woodworth «. Hall, 1 Woodb. & M. 249. » Booth V. Garelly, 1 Blatch. 247. • Sullivan «. Redfleld, 1 Paine, 441. ' Sparkman v. Higgins, 1 Blatch. 205. 3i56 UMtTNOnONS. [chap. XIV evidence improperly neglected on the former hearing, but new and material testimony will be required, i § 633. 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 iointly, 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 infringement, should be made parties. ^ And the assignor of a patent, who stiU retains an interest in the patent, though 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 infringe- ment in that territory.'' And where one of three parties works a patented machine, which 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 inter- ested in the patent, have contributed to a common fund for the protection of their comjnon rights by prosecuting infringe- ments of those rights. ^ § 634:. For the purpose of restraining the infringement of a patent, the court need only have jurisdiction of the person.^ " But where defendant resides in another jurisdiction, in which the infringement occurred, the court will not interfere. 1 1 And ' Woodworth v. Rogers, 3 "Woodb. & M. 135. " Clum V. Brewer, 3 Curtis, 506. = Stimpson ®. Rogers, 4 Blatcli. 333; Goodyear ». Allyn, 6 Blatch. 33; Goodyear v. New Jersey R. R. 1 Fish. 626. * Dilly ®. Doig, 3 Ves. Jr. 486. " Betts V. DeVitre, 34 L. J. Oh. 389 ; Goodyear v. Phelps, 8 Blatch. 91. " Woodworth ®. "Wilson, 4 How. 713. ' Ogle i>. Edge, 4 Wash. C. 0. 584. ' Woodworth «. Edwards, 3 Woodb. & M. 130. ' Potter V. Puller, 3 Fish. 351. '» Wilson «. Sherman, 1 Blatch. 536. " Goodyear v. Bourn, 3 Blatch. 366. CHAP. XrV.J PATEOTU 357 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, i § 635. 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 the provisions of the writ will be extended to an assignee of the defendant, who took an assignment of defendant's rights ^e«- dente lite, and with full knowledge of all the proceedings. ^ § 636. "Where an injunction is granted against the infringe- ment 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 injunction, but defendants may still be required to keep an account after the dissolution.* And the court may, on suffi- cient caase shown, permit the injunction to be dissolved upon condition of defendants giving security to account to com- plainants if their right shall be established. ^ But a decree 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.^ § 637. The penalty imposed by act of congress for not marking patented articles, does not afiect the right to an injunction to restrain an infringement.'' Nor is complainant barred from asking an injunction upon the hearing becaiise of his neglect to apply for the relief by an interlocutory motion, though such neglect will impose upon him the obligation of making out a clear and unexceptionable title at the hearing. ^ ' Boyd 0. Brown, 3 McLean, 395. " Crosaley «. Beverley, 1 Russ. & M. 166, note. ' Parkhurst v. Kinsman, 3 Blatoli. 78. ■■ Stevens ». Keating, 2 Ph. 333. 5 Brooks -e. Bicknell, 3 McLean, 250. " Barnard ■». Gribson, 7 How. 650 ; Humiston u. Staintlioi-p, 3 Wal. 106. ' Goodyear «. Allyn, 6 Blatch. 33, 3 Fish. 374. ' Bacon b. Spottiswoode, 1 Beav. 383 ; Buclianan «. Howland, 5 Blatch. 151 358 iNjuNcmoHS. [chap. xiv. § 638. A process of mamifacture may, under certain cir- cumstances, be protected by injunction, tbough not the subject of a patent. Thus, where defendant, through breach of con- tract 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. Though complainant in such a case may not have a good title for protection in equity as against the public generally, his process not being patented, he is entitled to protectiO|n 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. ^ § 639. The jurisdiction of equity for the protection of patents is exercised over foreigners within the limits of the country granting 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.^ ' Morison v. Moat, 9 Hare, 241. ^ Caldwell a.Vanvlissengeii, 9 Hare, 415. Tlie principles applicable to injunc- tions against the infringement of patents by foreigners within the jurisdic- tion of the government granting the patent, are well set forth by the Vice Chancellor in this case, as follows : "I take the rule to be universal that foreigners 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 aj-e 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 country in which they may be adopting those laws as part of their own law for the purpose of determining such rights. * * * * roreigners coming into this country are, as I apprehend, subject to actions for inju- ries 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 insuflSciency 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 of the crown could be enforced personally against parties who CHAP. XrV.] PATENTS. 359 § GiO. One who lias been enjoined from the infringement of a patent, violates the mandate of the court by using a machine which in substance and principle contains important portions of the patent, though 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 defendant who has been enjoined from infringing, by the manufacture and sale of the article, is equally guilty of a violation 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 infringing on complainant's patent, is a viola- ventured to disolsey it. The language of this part of the patent, therefore, does not appear to me to alter the case. * * * * in the argument on the part of the defendants, much was said on the hardship of this court's interfering against them, and upon the inconveniences which would result from it ; and some reference was made to the policy of this country ; hut it must be remembered that British ships certainly can not use this inven- tion without the license of the patentees, and the burthens incident to such license ; and foreigners can not, I think, jvistly complain that their ships are not 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 foreigners may take out patents in this country, and thus secure to themselves the exclusive use of their inventions within her Majesty's dominions; and that, if they neglect to do so, they, to this extent, withhold their invention from the subjects of this country. It is to be observed also, that the enforcement 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 apprehend would he invalid. One principal ground of inconvenience suggested was, that if foreign ships were restrained from using this invention in these dominions, English ships might equally be restrained from using it in foreign dominions; but I think this argument 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 dijty 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 affidavits and answer do not furnish sufficient grounds for refusing these injunctions." ' Woodworth ®. Rogers, 3 Woodb. & M. 135. "Id. » Potter V. MuUer, 3 Fish. 631. 360 INJUNCTIONS. [chap. XIV. tion of the injunction, if done by one on whom the writ was served, and will be punished by attachment.^ And in case of a willful violation of an injunction against the infringement of a patent, it is proper for the court, on motion for an attachment against defendant, to impose upon him the payment of such counsel fees and disbursements as were necessary to establish the violation of the injunction. ^ ' Goodyear v. Mullee, 5 Blatch. 439, 3 Fish. 209. ■' Doubleday v. Sherman, 4 Pish. 253. CHAP. XV.J COPYKiaHTS. 361 CHAPTEE XY. OF INJUNCTIONS AGAINST THE INFEINGBMENT OF COPTRIGHTS. § 641. Foundation of tlie jm-isdiction; exercised only by federal courts. 643. Complainant must come into court witli clean hands. 643. Requisites of bill ; injunction not dependent on discovery. 644. Right need not be established at law. 645. Difficulty of ascertaining piracy ; reference to master. 646. Quotations and extracts. 647. Rule as to compilations. 648. Quantity of pirated matter not always a test. 649. Variations merely colorable will not prevent an injunction. 650. When relief may be withheld until action at law. 651. Statute must be strictly complied with. 652. Effect of writ on sale of book enjoined no bar to relief. 653. Extracts ; law reports. 654. Musical compositions. 655. Plays protected, but not mere spectacular dramas. 656. Abridgments. 657. Distinction between compilation and abridgment. 658. Re-arrangement of pirated matter will not avail. 659. Complainant's conduct may estop him from relief. 660. Piracy limited to multiplying copies of original. 661. Where complainant is agent of government. 663. Bill and parties thereto. 663. Unpublished manuscripts entitled to protection. 664. Private letters. 665. Private letters ; scientific lectures. 666. Publication of libel will not be enjoined. 667. Magazine, when enjoined. 668. Common law right. 669. Covenants against publication. 670. Translation not an infringement. 671. Equitable title will be protected. § 641. The jurisdiction of equity in restraining violations of copyright, as in case of the infringement of patents, is 362 INJTINCaTONS. [chap. XT. based upon the necessity of preventing irreparable mischief and vexatious litigation, as vfell as securing the rights of authors and their representatives. i It is not indispensable to obtaining the relief, that complainant should make out a clear legal title, but the court will be content with a prvrrm fade title,' either legal or equitable, or with a clear color of title and assertion of the right. ^ By acts of congress, the power of issuing injunctions in cases of copyright in this country is vested in the United States courts, and as in the case of patents, the jurisdiction is exclusively exercised by these courts.* § 642. The interference by injunction being purely equita- ble, he who seeks this species of relief must come into court with clean hands, and a book which is itself a piracy will not be protected.-* And since, on grounds of public policy, no copyright can exist in a work which is manifestly immoral, irreligious, or obscene, if it be matter of doubt whether the work in favor of which the aid of equity is sought comes within these classes, the threatened piracy will not be restrained, but the party will be left to pursue his remedy at law.^ And where there is doubt as to whether the work sought to be protected impugns the doctrines of the Scriptures, equity will refuse an injunction against its infringement. ^ ' 2 Story's Eq. § 930 ; Saunders «. Smith, 3 Myl. & Or. 728. = 2 Story's Eq. § 935 ; Universities ®. Rioliardson, 6 Ves. 689 ; Cliappell d. Puiday, 4 Y. & 0. 485. = Dudley v. Mayhew, 3 N. T. 9 ; 16 Statutes at Large, ch. 230, p. 212. In the English. Court of Chancery relief by injunction is not allowed for the protection of the copyright of a foreigner. Delondre d. Shaw, 2 Sim. 337. * Cary ■». Faden, 5 Ves. 24; Barfield «. Nicholson, 2 Sim. & Stu. 1. • 2 Story's Eq. § 936 ; Southey v. Sherwood, 2 Meriv. 435 ; Lawrence ». Smith, Jac. 471. And see Martinetti v. Maguire, 1 Abb. IT. S. R. 356. ' Lawrence ». Smith, Jac. 471. Eldon, Chancellor, says t " Looking at the general tenor of the work, and at many particular parts of it, recol- lecting that the immortality of the soul is one of the doctrines of the Scriptures, considering that the law does not give protection to those who contradict the Scriptures, and entertaining a doubt, I think a rational doubt whether this book does not violate that law, I can not continue the injunction. The plaintiff may bring an action, and when that is decided he may apply again." CHAP. XV.] coPTKiam's. 363 § 643. Where the bill upon its face establishes the existence of the copyright and of complainant's title, and shows a wrongful and willful violation thereof, from which serious injuries have resulted, or are likely to result, the injunction will be granted, its extent depending upon the proof and the nature of the publication, i And this relief is not dependent upon the discovery prayed by the bill, but may be granted or refused independent of the discovery. ^ Complainant must, however, show reasonable diligence in coming into court, and delay in making the application will, unless satisfactorily accounted for, be sufficient ground for refusing relief. ^ § 644. We have already seen, in discussing the subject of injunctions to restrain the infringement of patents, that the stringency of the rule formerly maintained by the English Court of Chancery, requiring the right to be first established at law, has been much relaxed, and that where the right is clear and the infringement unquestioned, the patentee will not be compelled in the first instance to proceed at law.^ The same observations are applicable where an injunction is sought against an infringement of copyright, and while the court may, if it sees fit, require a verdict at law touching the alleged infringement,^ yet the doctrine may now be regarded as well settled, that both the right and the infringement may be adjudicated in a court of equity, without having been first determined at law.* § 645. The chief difficulty experienced in attempting to apply the principles of equity to the protection of copyrights, is in ascertaining whether the work sought to be enjoined is an original or a piracy. Where the work is of such a character that the piracy may be easily detected, the court will itself make the examination.' But the more usual practice is to ' Atwill V. Ferrett, 2 Blatch. 39 ; Lewis v. FuUaiton, 3 Beav. 6. ' Atwill ». Ferrett, 3 Blatch. 39. ' Mawman v. Tegg, 3 Russ. 393 ; Campbell d. Scott, 11 Sim, 31. * See § 604, ante, and cases cited. ' Blunt ». Patten, 3 Paine, 397. « Farmer d. Calvert etc. Co., 5 CMcago Legal News, 1. ' Lewis V. Fullarton, 3 Beav. 6. 364 rajDNcrnoNS. [chap. xv. refer tlie subject to a master, who examines the works and reports to the court; and upon this report the interlocutory as well as the final decree is generally based. ^ And if it is ascertained that the publication complained of is piratical, the question of guilt or innocence on the part of defendant is' immaterial, and the relief will be granted, regardless of the intent with which defendant's work was published.^ The question of intent only becomes material in cases of doubt as to the invasion of the right. ^ § 646. It may be considered as well established that hona fide quotations from a book, or a use of the same common materials, does not constitute such an infringement as equity win restrain.* But if so much of the original is taken as to sensibly diminish its value, or if there is a substantial and injurious appropriation of complainant's labors, the relief will be allowed. 5 And it is not necessary, to warrant the inter- ference of equity, that defendant's work should be a substitute for complainant's; it is only required that so much should be abstracted as to sensibly impair and diminish the value of the original. * § 647. Where the natural objects from which a work is produced are equally open to all, as in the case of a map or chart, the copyright is violated only when a servile imitation is made. In all such cases, absolute originality being of neces- sity excluded, the compiler may properly make use of preced- ing works upon the same subjects, by bestowing upon the materials thus taken such mental labor and subjecting them to such revision as to produce an original result, the alterations ■ 3 Story's Eq. § 941 ; Caiy «. Faden, 5 "Ves. 24. But in Smith «. John- son, 4 Blatoh. 352, it is held that the motion for the injunction must he disposed of on the moving papers of complainant and defendant's affidavits in opposition thereto, and that on such motion no reference to a master will he allowed. » Eeade ». Conquest, 11 C. B. N. 8. 479. » Webh flf Powers, 3 Woodb. & M. 497. * Campbell ®. Scott, 11 Sim. 31. • Folsom V. Marsh, 3 Story's E. 100. « Bohn ». Bogue, 10 Jur. 420. CHAP. XV.] COFYEIGHrS. 365 being not merely colorable, and tbe compiler not denying the use made of preceding works. ^ ' Blunt . Stanhope, Amb. 737. « Perceval v. Phipps, 2 Ves. & B. 19. 8 Abernethy v. Hutchinson, 3 L. J. R. Ch. 209. * Bartlette v. Crittenden, 4 McLean, 300. » Morris «. Kelly, 1 Jac. & W. 481. ' Clarke v. Freeman, 11 Beav. 112; Mulkern v. "Ward, before Vice Chan- cellor Bacon, reported in 4 Chicago Legal News, 440. ' Brandreth a. Lance, 8 Paige, 34. But see, contra, Dixon «. Holden, L. R. 7 Bq. 488. * Brandreth «. Lance, 8 Paige, 24. 378 mjTJNcrnoNS. [chap. xv. and also to prevent the publication by defendant of communi- cations received by him while publishing for complainant, i § 668. Independent of copyright laws, an author has an unquestioned property in his works, until publication, by the common law, in which right he Avill be protected. ^ Copyright laws are merely ancillary to the common law rights of authors, continuing such rights after publication in print, but in no way impairing them while the literary composition remains in manuscript. And the public representation of a play at a theater is. not such a publication as will deprive the author of his common law right. And one who has possessed himself of the words and arrangement of a drama, from persons who had seen it publicly performed, will be restrained from its publication without the author's consent.^ • Hogg B. Kirby, 8 Ves. 215. 2 Millar v. Taylor, 4 Burr. 2303; Woolsey v. Judd, 4 Duer, 389; Bouci- cault 11. Wood, 16 Am. Law Eeg. 539. And see Keene ii. Wheatley, 9 Am. Law Reg. 33. 2 Palmer ». Dewitt, 3 Sweeny, 530, 3 Albany Law Journal, 54, decided in the Superior Court of New York City, December Term, 1870. And see as to unauthorized representation of a play, Morris v. Kelly, 1 Jac. & W. 481. In Palmer «. Dewitt complainant alleged that he had purchased the exclusiYe right of producing in the United States an unp^■lblished comedy called "Play ;" that the play had been produced by the author in England and by complainant in the United States, but with no intention of abandoning it, or of conferring upon any one the right of printing or publishing, and that defendant, in disregard of complainant's proprietary right, and without Ms knowledge or consent, had published and sold copies of the di'ama. The answer of defendant denied that the public representation of the play by the author did not confer upon or abandon to defendant the right of publishing, and alleged that the play had been many times performed in public in England, without any notice or prohibition to the spectators against carrying it away, by memory or otherwise, and using or publish- ing it. Defendant further alleged that he received the words of the play and its arrangement, divisions and stage directions from persons who had obtained them by witnessing its performance on the stage as spectators. Monell, J., delivering the opinion of the court, says ;**«=" There can be no fixed rule determining when an author has surrendered his literary property. Printing his composition, and giving it public circulation, would fix the period of surrender in such a case ; but one reading of a manuscript lecture, or one performance of a manuscript play, would not; and if one does not, what greater number, can it be said, will ? The value, CHAP. XV.] COPYRIGHTS. 379 § 669. "Where an autlior lias sold and assigned the copy- right of his work, published in his name, and has bound to the autlior, of a lecture or of a play, who derives emolument from its delivery or representation before public audiences, is not limited to one performance. It may extend to any greater number, and the hundredth performance may bring more ample returns than the first. So that it may faii'ly be assumed, that it is not intended, in any case, to surrender prop- erty in a literary composition, so long as the author of it retains it in manuscript, and uses it before the public for his private pecuniary benefit. Therefore, I think there can be no presumption against literary ownership arising from the mere frequency of performance. Such performances are not inconsistent with a continued proprietorship, but are wholly consistent with, and necessary to, the enjoyment of the property. * * * Upon the subject of publication, I will here refer to some of the cases, either hold- ing or sustaining that a representation of a play is not necessarily a publi- cation of it, so as to deprive the author of his property in it. Judge Sprague so held in Roberts v. Meyers, 23 Monthly Law Reg. 396. He said it was not a publication within the meaning of the copyright law, and did not prevent an author from obtaining a copyright. It is affirmed by Judge Hoar, in Keene «. Kimball, 23 Monthly Law Reg. 669, where he says : ' The representation of a dramatic work upon the stage is not a publication which will deprive the author or his assignees of their right of property.' In Bartlette «. Crittenden, 4 McLean, 300, 5 lb. 83, it was held that the author of a lecture did not dedicate the manuscript to the public by using it for the purpose of instructing others. That case went further, and decided that an author did not abandon his right in his com- position by permitting pupils or friends to take copies ; and that such copies could not be used in anyway not contemplated by the author. And in Blunt b. Patten, 3 Paine, 397, a deposit by the author of his work in a public office, such as a chart in the navy department, was held not to make it a public document, which any one might copy. And, again, in Bouci- cault «. Wood, 16 Am. Law Reg. 539. In a very recent case (Crowe ■». Aiken, not reported), decided by Judge Drummond, in the circuit court of the United States for the district of Illinois, an injunction was asked for to restrain the represention by the defendant of the play called 'Mary Warner.' The play was wi-itten by Mr. Taylor for Miss Bateman, and the manuscript was transferred to the plaintiflT. It was publicly represented in London and in the United States, but was not printed. The defendant alleged that the play was obtained from a person in London, who pro- cured it from repeated representations on the stage at the Haymarket Theater, and that there was no ' no restriction ' against any of the specta- tors using such play as they saw fit. After a lengthened examination of the questions, the court decided to grant the injunction. In the opinion, the ground is distinctly taken, that a representation is not a publication, and any manner of obtaining it, without the consent of the author or owner, 'except by memory,' is a violation of his proprietorship. As far 380 rajTUSTCTIONS. [chap. XV. himself by express agreement not to publish any work preju- dicial to the sale of the first, a publisher who, with notice of therefore, as this case depends upon an actual or constructive publication of the play hy the plaintiff or his assignee, the clear weight of authority is, that public representation is not publication, and does not entitle any person, -.vithout the author's consent, to procure it in any way for purposes of publication, except, perhaps, when it is procured by means of the memory alone. I am aware that in the case of Keene i). Wheatley, 9 Am. Law Reg. 93, which is followed by Keene v. Clarke, 5 Rob. N. Y. 38, and again by Crowe v. Aiken, each of the learned judges leans to the opinion that an auditor may use his memory as a means of procuring a represented play, and may then lawfully print and publish it. The reason seems to be, that as there can be no power over or restriction of the use of the memory, therefore such use is not unlawful. It is enough, however, perhaps, for the present case, to say that, even if it is true that an auditor at a public repre- sentation may lawfully carry away the play in his memory, and afterward put it in writing, and from such writing print and publish, there was no evidence in this case to bring it within that rule. The finding of the court is, that the defendant received the words of the comedy, etc., from one or more persons who had seen or heard it performed. That finding is not enough to justify the conclusion that the person or persons who saw or heard the pviblic performance had brought it in their memories from the theater. The bui'den of proving the manner in which the play was pro- cured was upon the defendant, and he was bound to show that he had obtained it in a, lawful way. There are no presumptions in his favor. Tlie right of the plaintiff as owner, before publication, was absolute, and could be defeated only by showing that the defendant had obtained the play through the memory of an auditor. This is the result of the learned opinion of Judg? Cadwallader in Keene v. Wheatley, supra, in which view he has fortified himself by the citatiou of many cases ; and also of Judge Drummond, in Crowe v. Aiken, supra. But I am compelled to dissent from the opinions of the learned judges in those cases, so far as it is inti- mated that a spectator may, upon witnessing the public performance of a play, rightfully commit it to memory, and then publish it to the world ; and also from a qualified view of the same character, entertained by the learned late chief justice of this court, as expressed in his opinion in Keene i). Clarke, uM supra. It seems to me that any surreptitious procuring of the literary property of another, no matter how oUained, if it was unauthor- ized and without the knowledge or consent of the owner, and obtained before publication by him, is an invasion ot his proprietary rights, if the property so obtained is made use of to his injury. Each of the learned justices admits that a play can not lawfully be taken down by a shorthand writer from the lipp of the actors during a public performance. If taken thus by a stenographer, is it different, in its legal effect and resulting con- sequences, from committing to memory and afterward writing it out? In principle it is not. They are only different modes of doing the same thing, CHAP. XV. 1 OOFTEIGHTS. 381 this covenant, subsequently publishes a vs^ork purchased from the same author, in the same name, and upon the same sub- and if witliout the author's consent, are alike injurious to his interests. The ohjection is not to the committing a play to memory, for ot^er that no court can exercise any control, hut in using the memory afterward as the means of depriving the owner of his property. Such use, it seems to me, is as much an infringement of the author's common law right of property, as if his manuscript had been feloniously taken from his possession. I can see no difference. In the case of Prince Albert v. Strange, 2 De G-. and Sma. 653, a workman employed to take impressions from copper plates of etchings made by the plaintiff, not intended for publication, took impres- sions for himself and sold them to the defendant. It was held an infringe- ment of the plaintiffs proprietary right, and an injunction was granted and the impressions ordered to be destroyed. The pleadings and proofs in this case were shaped so as to bring it within one of the propositions of the learned late chief justice in Keene v. Clarke, and it is accordingly found as a fact that the tickets admitting spectators to the performances contaiAed no notice or prohibition against carrying the comedy away, by memory or otherwise, and using and printing the same, nor was any notice to that effect posted in the theater in the view of the spectators. What- ever means a prudent man may adopt to prevent his property from being feloniously taken from him, it can not, I think, be successfully contended, that, if he chooses to take the risk, he may not leave it exposed without mark or other sign to designate it as his property; or that, by thus expos- ing it, he would lose his title, and could not afterward recover it, or its value, from one who tortiously took it. A wrongdoer can not get title to property, or escape the responsibility of his tortious or felonious act, merely because the owner has failed to give public notice or warning that it was not to be stolen. If carrying away in the memory of a spectator, or otherwise surreptitiously obtaining the contents of a play, is without the consent of, or unauthorized by, the owner, and therefore an infringement of his property in the play, the act is not excused by the omission of the owner to notify the audience that they will not be allowed, or are forbidden, to carry it away in that manner. Upon a careful consider- ' ation, therefore, of the subject, I have not been able to appreciate the distinction which the learned judges in Keene b. Wheatley and Keener. Clarke and Crowe ». Aiken have attempted to draw between different modes of obtaining the contents of a manuscript play from its public per- formance. They are equally objectionable, and are merely different modes of depriving an author of his literary property; and, therefore, any mode which effectuates that purpose is unlawful. The vice-chancellor says, in Prince Albert a. Strange, supra, (p. 689), that as to property of a private nature, which the owner, without infringing on the right of any other, may and does retain in a state of privacy, a person who, without the owner's con- sent,, express or Implied, acquires a knowledge of, can not lawfully avail him- self of tlie knowledge so acquired to publish, without his consent, a descrip- 382 mjTjHonoNS. [chap, xv ject, will be enjoined, although the latter work is not a piracy of the former and is published under a different title, i But the rule would seem to be otherwise where the publisher purchases the rival work in good faith, and without notice of the covenant on the part of the author. ^ And where the proprietor of a weekly periodical assigns his copyright and entire interest, for valuable consideration, and at the same time agrees not to publish any weekly periodical of like nature, he may be enjoined from publishing a daily journal under the same name and at the same price, complainant undertaking to abide by the order of the court as to damages, and to bring his action at law against defendant within one week.^ § 670. The question as to whether a translation of a copy- righted work is or is not such an infringement as to entitle tion of the property. That opinion goes quite as far as is necessary to destroy the distinction alluded to. There is another case to the same effect. In Turner «. Robinson, 10 Irish Ch. 121, a painting, on public exhibition for private emolument, was seen by spectators, some of whom: from recollection, arranged themselves in tableau, representing the figures in the painting, and were photographed. The sale of engravings made from such photographs was restrained by injunction. The mode adopted for carrying into execution what was denounced by the court as an unlaw- ful act, was the same in the Irish case as was approved of in the two cases alluded to, namely, in the memories of the spectators ; and the case is therefore opposed, as an authority, to the distinction referred to. My con elusions upon the whole case are, that there was no such publication by the plaintiff, or by his assignor, of the play in question, as to deprive the plaintiff of his common law right of property in it. That public represen- tations of the play were not a publication of the play so as to take away such common law right. That there is no presumption in favor of the law- fulness of the manner in which the defendant obtained the play. That the burden is upon him to show that it came into his possession in a lawful manner ; and that, having failed to show the lawfulness of his possession, he should be deprived of it. I am therefore of opinion, that the plaintifl is entitled to a judgment restraining the defendant from further printing or publishing the play, and requiring him to deliver up to be destroyed such as are now in print, and that, therefore, the judgment appealed from should be reversed." ' Barfield v. Nicholson, S L. J. Ch. 90. 'Id. ' Ingram v. Stiff, 5 Jur. N. 8. 947. CHAP. XV. j C»ITEIGHT8. 383 the author to the protection of eqiiity, has seldom been presented as a direct question for the decision of the courts, though numerous dicta may be found in the adjudicated cases bearing more or less directly upon the subject. ^ In this country, however, the law may be regarded as settled, that a translation is not such an infringement as to call for the aid of equity, and it will not be enjoined. The rule is based upon the reasoning, that an author can claim no literary property, after publication, in his ideas, thoughts, or senti- ments, apart from the language and outward semblance in which they are couched; and that when he has sold his book, the only property which he can reserve to himself, or in which the law will protect him, is the exclusive right to multiply copies of the particular combination of characters in which his ideas are clothed. ^ ' Millar v. Taylor, 4 Burr, 2303 ; Murray v. Bogue, 1 Drew. 358 ; Prince Albert v. Strange, 3 DeGex & S. 652 ; Wyatt ®. Barnard, 3 Ves. & B. 77 ; Bur- nett ». Chetwood, 2 Meriv. 441, note. ' Stowe «. Thomas, 2 Am. Law Reg. 310. This was a bill for an injunc- tion, alleging tbat complainant was the author and proprietor of a work called "Uncle Tom's Cabin," which was duly copyrighted, and thai defendant had translated the same into German, and printed, published and sold it, both in newspaper and pamphlet form. The answer admitted the facts, but denied that they constituted an infringement. The relief was denied, Grier, J., observing as follows : * * * "An author may be said to be the creator, or inventor, both of the ideas contained in his book, and the combination of words to represent them. Before publica^ tion he has the exclusive possession of his invention. His dominion is perfect. But when he has published his book and given his thoughts, sentiments, knowledge or discoveries to the world, he can have no longer an exclusive possession of them. Such an appropriation becomes impossi- ble, and is inconsistent with the object of publication. The author's conceptions have become the common property of his readers, who can not be deprived of the use of them, or their right to communicate them to others clothed in their own language, by lecture or by treatise. The claim of literary property, therefore, after publication, can not be in the ideas, sentiments, or the creations of the imagination of the poet or novel- ist, as dissevered from the language, idiom, style or the outward sem- blance and exhibition of them. His exclusive property in the creation of his mind, can not be vested in the author as abstractions, but only in the concrete form which he has given them, and the language in which he has clothed them. When he has sold his book, the only property which he reserves to himself, or which the law gives to him, is the exclusive right to 384 INJUNCTIONS. [OHAF. XV. § 671. The province of courts of equity being to afford relief in cases where no remedy exists at law, or where the legal remedy, if any, is inadequate or incapable of being multiply the copies of tliat particular combination of characters whicli exhibits to the eyes of another the ideas intended to be conveyed. This is what the law terms copy, or copyright. See Curtis on Copyright, 9, 10, 11, etc." * * * "The notion that a translation is a piracy of the original composition, is founded on the analogy assumed between copyright and patents for inventions, and where the infringing machine is only a change of the form or proportions of the original, while it embodies the principle or essence of the invention. But as the author's exclusive property in a literary composition, or his copyright, consists only in a right to multiply copies of his book, and enjoy the profits therefrom, and not in an exclusive right to his conceptions and inventions, which may be termed the essence of his composition, the argument from the supposed analogy is fallacious. Hence, in questions of infringement of copyright, the inquiry is not whether the defendant has used the thoughts, conceptions, information or discoveries promulgated by the original, but whether his composition may be considered a new work requiring invention, learning and judg- ment, or only a mere transcript of the whole or parts of the original, with merely colorable variations. Hence, also, the many cases to be found in the reports, which decide that a bona fide abridgment of a book is not an infringement of copyright. To make a good translation of a work, often requires more learning, talent and judgment than was required to write the original. Many can transfer from one language to another, but few can translate. To call a translation of an author's ideas and conceptions into another language, a copy of his book, would be an abuse of terms, and arbitary judicial legislation." * * * "The distinction taken by some writers on the subject of literary property, between the works which are publici juris, and those which are subject to copyright, has no founda- tion in fact, if the established doctrine of the cases be true, and the author's property in a published book consists only in a right of copy. By the publication of her book, the creations of the genius and imagina- tion of the author have become as much public property as those of Homer or Cervantes. Uncle Tom and Topsy are as much pubUci juris, as Don Quixote and Sancho Panza. All her conceptions and inventions may be used and abused by imitators, playwrights and poetasters. They are no longer her own — those who have purchased her book may clothe them in English doggerel, in German or Chinese prose. Her absolute dominion and property in the creations of her genius and imagination have been voluntarily relinquished ; and all that now remains is the copy- right of her book, the exclusive right to print, re-print and vend it; and those only can be called infringers of her right, or pirates of her property, • who are guilty of printing, publishing, importing or vending without her license 'copies of her book.' In topical, but not very precise phrase- CHAP. XV.] conrEiGHTS. . 385 enforced, the possession of the legal title is not indispensable to obtaining relief in equity against the infringement of a copyright, and the courts have been disposed to extend their aid upon the application of persons having only an equitable title. 1 And the assignee of the copyright in a law report is entitled to the protection of his rights by injunction, even though at the time of the alleged piracy no written assign- ment existed, and complainant's title was merely equitable.^ And in such case, the author's permission to infringe the copyright, given after he has parted with his equitable title for a valuable consideration, constitutes no bar to the ' relief, it appearing on the title page of the work that it is published for the equitable assignee and owner of the copyright. ^ So the performance of a play may be enjoined, where the copy- right has been assigned by the author to persons who after- ward assign in writing to complainants, though the original assignment may not have been in writing.* ology, a translation may be called a transcript or copy of lier tbouglits or conceptions, but in no correct sense can it be called a copy of her book. The plaintiff's bill is therefore dismissed with costs." 'Mawman ®. Tegg, 3 Russ. 385; Chappell «. Purday, 4 T. & C. 485; Hodges «. Welsh, 3 Ir. Eq. R. 366. * ' Hodges v. ."Welsh, 2 Ir. Eq. R. 266. «Id. * Morris v. Kelly, 1 Jac. & W. 481. 25 386 nuxTNcnoNs. [chap. xn. OHAPTEE XVI. OF INJUNCTIONS TO BESTRAIN THE PIRACY OF TRADE MARKS. § 672. Definition of trade mark. 673. Name of town does not constitute trade mark. 674. Trade mark whicli is deceptive not protected. 675. Symbol, however unmeaning, entitled to protection; imitation with only colorable differences enjoined. 676. Injunction not allowed wliere right is doubtful. 677. General rule; foundation of the jurisdiction. 678. Piracy may consist in use of defendant's own name. 679. Intent immaterial. 680. Evidence of piracy. 681. Diligence necessary in seeking the relief. 682. Parties. 683. Assignee may enjoin; changes in firm. 684. Literary publications. 685. Conditions of the relief. 686. Partners. 687. Corporate name regarded as a trade mark. 688. Natural products entitled to protection. 689. Nice distinction. 690. Certificate of registry not conclusive ; package. 691. Degree of resemblance. 692. Use of firm name. 698. Promises to refrain from piracy no bar to relief. 694. Accoimt. § 672. A trade mark is a particular sign or symbol wMcli, by exclusive use, becomes recognized as the distinguishing mark of the owner's goods, and for the protection of which the aid of equity may be properly invoked. It is not neces- sary that the article should have acquired a general notoriety in the market, by the use of the particular mark adopted, but the right may be established whenever the goods are brought CHAP. XVI.] TRADE MAEKS. 387 into market. 1 If the marks or devices used refer simply to tlie nature, kind, or quality of the articles, and do not designate the particular goods of the owner, or his particular place of business, he can not acquire such a property in the words oi symbols used as to warrant the interposition of equity. ^ Thus, if the name used is simply descriptive of the article, oi is the name by which it is generally known in trade, or indi- cates the general nature of the business, it is not a trade mark within the meaning of the rule.^ § 673. A manufacturer can not acquire such an exclusive property in the name of a town where his goods are manufac- tured, as to entitle him to an injunction restraining other manufacturers in the same town from using the name of the town to designate the place of manufacture of their goods, there being no piracy of complainant's name.'' But, though the manufacturer in selecting a term to distinguish his goods should select the name of a place familiarly known, yet if he imposes a new oiRce or attribute upon the word, specially designating the origin and place of manufacture of the article, without infringing upon any previous use of the term by others, he may be protected by injunction. ^ § 674. In cases of interference to restrain the piracy of trade marks, a strict application is made of the rule that he who would have equity must do equity. And if complainant's trade mark contains in itself any misstatements tending to deceive the public, either as to the place where his goods are manufactured, or as to the quality and identity of the goods purchased, he is guilty of a fraud as well as defendant, and wiU not be protected.' So if a trade mark falsely represents ' M 'Andrew ii. Bassett, 33 L. J. Oh. 561. " Stokes ». Landgraff, 17 Barb. 608 ; Corwin v. Daly, 7 Bosw. 223. ' Braham v. Bustard, 1 Hem. & M. 447 ; Young v. Macrae, 9 Jur. N. S. 333. And see London etc. ■». London etc., 11 Jur. 938. * Candee v.- Deere, Supreme Court of Illinois, 10 Am. Law Reg. N. S. 694. And see Wotherspoon e. Currie, 23 L. T. N. S. 443. " Newman «. Alvord, 49 Barb. 588. « Palmer «. Harris, 60 Pa. St. 156; Pidding v. How, 8 Sim. 477; Flavel v. Harrison, 10 Hare, 467 ; Perry ». Truefitt, 6 Beav. 66 ; Leatlier etc. v. Ameri- can etc., 11 H. L. 533. 388 iNJUNonoNS. [chap. xvi. the goods as patented, tliere being no patent, tlie owner is guilty of such misrepresentation as will debar liim' from relief.! But if in such case a court of equity is in doubt as to whether a court of law might not consider the party aggrieved entitled to, some relief against defendant, for having used his name in connection with the sale of the article, the bill may be retained until an action at law can be brought to determine the right. ^ And the use of the word "patent" as part of a trade mark of goods which have never been patented, ■will not prevent a party from obtaining an injunction against the infringement of his trade mark, if the word has not been used in such manner as to deceive and mislead the public into the belief that the article was actually pi-otected by patent.^ Thus, the words "patent thread" may be used as part of a trade mark where they have long been employed in the trade as a term of art to designate a particular kind of thread, although it has never been patented.* § 675. However unmeaning or absurd the mark or symbol used may be in itself, it may still be the subject of a trade mark and entitled to protection. ^ It is to be observed, how- ever, that the right is limited to the use of the symbol with reference to a particular line of goods, so that its use in connection with a different class of goods is not deemed a piracy.' But since the imitation of a trade mark with partial diffei-ences, such as would not be observed by the public, effects the same injury as an entire counterfeit, it follows that any imitation, with only a colorable difference in some of the details, will be restrained.' Thus, where defendant's trade ' Leather etc. v. American etc., 11 H. L. 533, 548 ; Flavel «. Harrison, 10 Hare, 467. " Flavel V. Harrison, 10 Hare, 467. 8 Marsliall «. Ross, L. R. 8 Eq. 651. •Id. ' Perry v. Truefitt, 6 Beav. 66 ; Braham v. Bustard, 1 Hem. & M. 477. " Leatlier etc. v. American etc., 83 L. J. Ch. 199; Hall v. Barrows, lb. 204; Braham v. Bustard, 1 Hem. & M. 447. ■" Clark «. Clark, 35 Barb. 76 ; Brooklyn etc. ». Masury, lb. 416 ; Williams t). Spence, 35 How. Pr. 366. And see Gillott ■». Esterbrook, 47 Barb. 455. In Brooklyn etc. v. Masury, 35 Barb. 416, the plaintiflf, an incorporated CHAP. XVI.J TRADE MAEKS. 389 mark is in all respects similar to that of complainant, except only in the use of the name, the injunction will be allowed, i While it is often a matter of great difficulty to determine what company, had been engaged for over twenty years in manufacturing wliitc lead in the city of Brooklyn, and was accustomed to mark its kegs "Brooklyn "WTiite Lead Company," or "Co." Defendant was engaged in the same business, and at the same place, though established for a less period of time, and the imitation complained of was in marking his kegs "Brooklyn White Lead and Zinc Company." The injunction was sus- tained on appeal to the Supreme Court, Mitchell, P. J., saying : " It is to protect the plaintiff's right of selling his own that the law of trade marks has been introduced. It must include a right to sell to all — to the incautious as well as to the cautious. Any false name that is assumed in imitation of a prior true name is in violation of this right, and the use of it should be restrained by injunction." The injunction was, however, modified so as to prevent the use of the word "Company," or "Co.," allowing the use of the remaining words. ' Gillott ■». Bsterbrook, 47 Barb. 455 ; Hostetter v. Vowinkle, 1 Dillon's C. C. 329. In this case an injunction was allowed to restrain an imitation of complainant's label resembling the original in all respects, except that the word "Hostetter" was changed to "Holstetter" and the words "Hostetter & Smith" were changed to "Holstetter & Smyth." The principles applicable to the infringements of trade marks are well laid down in this case by Dillon, J., as follows : " The law is well settled that a party who has appropriated a particular trade mark to distinguish his goods from other similar goods, has a right or property in it which entitles, him to its exclusive use. This right is of such a nature that equity will protect it, by injunction, from invasion, and if it has been invaded, the wrongdoer is liable for the damage he has thereby caused the party whose trade mark he has adopted or illegally imitated ; which damage will ordinarily be the loss of profits caused by the illegal or fraudulent infringement. Candee et al. i). Deere et al.. 111. Sup. Ct. 1871, 10 Am. Law Keg. N. S. 694; Motley v. Downman, 3 Myl. & Cr. 1; Milling- ton D. Fox, lb. 388; Eden on Injunc, ch. 14, p. 314; Story Eq. Jurisp. § 951 ; Taylor v. Carpenter, 2 "Woodb. & M. 1 ; Walton ». Crowley, 3 Blatchf. 440 ; CoflFeen ®. Brunton, 4 McLean, 518 ; Seixo v. Provezende, 1 Ch. Ap. 194; Amoskeag Manufg. Co. v. Spear, 2 Sandf S. C. K. 606; Filley v. Pas- sett, 8 Am. Law Reg. (N. S.) 402, 44 Mo. 168, and cases cited ; Gillott ■». Esterbrook, 47 Barb. 469; Burnett «. Phalon, 9 Bosw. 193; Croft «. Day, 7 Beav. 89; Edlestonu. Tick, 33 Bug. C. L. & Eq. 53. These cases and others, also show that it is not necessary to constitute an illegal infringe- ment that the trade mark of the originator should be copied in every particular. It is sufficient to warrant equitable relief that it is likely to deceive or mislead the patrons of the originator, or make it pass with tho public as his." 390 rNjOTTcnoNS. [chap. xn. degree of resemblance will constitute a piracy, it is to be observed tbat tbe test is' not wbetlier a wary and cautious person would be likely to be misled by the imitation, but whetber it is sucb as would deceive the unwary and careless. ^ And it should, at least, appear that the resemblance is such as to raise the probability of mistake on the part of the pubhc, or of a design and purpose on the part of the defendant to deceive the public. ^ But, if the article is calcidated to mislead the public, the intent with which it was manufactured does not signify, nor does it matter whether any person has actually been deceived, provided the resemblance is such as to mislead an ordinary purchaser. ^ § 676. Where the question as to defendant's right to use .complainant's trade mark is not entirely free from doubt, the injunction will not be allowed if defendants are able to respond in pecuniary damages at law.* So if the question as to whether complainant's trade mark has actually been pirated in such a manner as to injure him and deceive the public is involved in doubt, or if it be doubtful whether 3omplainant has such a legal right as would justify an injunc- tion, the relief should not be allowed until the cause is heard apon pleadings and proof, or until complainant has established his right at law.^ And, in general, it may be said that equity will not interfere where complainant's right is not clearly established, especially where it appears that both parties were originally concerned in the manufacture of the article as copartners. 8 But, in order to defeat complainant's right to appropriate a particular symbol or term on the ground of its ' Leather etc. «. American etc. 11 H. L. 523 ; Seixo v. Provezende, 1 L. R. Ch. Ap. 193; "Williams v. Spence, 35 How. Pr. 366. ' McCartney «. Garnhart, 45 Mo. 593. And see Filley «. Fassett, 44 Mo. 168, a leading case. ' Leather etc. v. American etc., 11 H. L. 533. " Howe B. Howe etc., 50 Barb. 336. ' Partridge v. Munck, 3 Barb. Ch. R. 101, 3 Sandf. Ch. 633; Spottiswoode v. Clark, 2 Ph. 154. But in the latter case it is held that defendant may in Uie meantime be reijuired to keep an account. ^ Coffeen v. Biuuuja, 5 McLean, 356. O^AF. XVI.] TRADE MAEKS. 391 having been previously in common use, it must appear that such use extended to and included complainants, i § 677. It may be laid down as a general rule that a manu- facturer, adopting a certain trade mark and stamping it upon his goods, acquires the exclusive right to the use of that particular mark or symbol in connection vsdth that particular class of goods, and that he is entitled to the interposition of a court of equity to enforce this right by perpetual injunction.* Even a system of numbers, if adopted and used for the purpose of designating the manufacturer's particular goods, comes within the rule and is entitled to protection. ^ But letters and numbers, or a combination of letters and numbers, used for the purpose of designating the size, shape and quality of a manufacturer's goods, do not constitute a trade mark and are not entitled to protection in equity.* The jurisdiction rests upon fraud on the part of the defendant,^ and upon the principle that equity will not allow one to sell his own goods under the pretense that they are the goods of another. ^ And in addition to such a general resemblance of forms, words and ' Newman c. Alvord, 49 Barb. 588. ' Taylor v. Carpentet, 11 Paige, 292, affirmed by the court for the correc- tion of errors ; Hostetter ■». Vowinkle, 1 Dillon's 0. C. 329. * Ainsworth i>. Walmsley, 1 L. R. Eq. 518. * Candee v. Deere, Supreme Court of Illinois, 10 Am. Law Reg. N. S. 694. * Delaware v. Clark, 7 Blatch. 112. ' Perry «. Truefitt, 6 Beav. 66. Lord Langdale, Master of the Rolls, observes: "I think that the principle on which both the courts of law and equity proceed, in granting relief and protection in cases of this sort, is very well understood. A man is not to sell his own goods under the pretense that they are the goods of another man ; he can not be permitted to practice such a deception, nor to use the means which contribute to that end. He can not, therefore, be allowed to use names, marks, letters, or indicia, by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person. I own it does not seem to me that a man can acquire a property merely in a name or mark ; but whether he has or not a property in the name or the mark, I have no doubt that another person has not a right to use that name or mark for the purposes of deception, and in order to attract to himself that course of trade, or that custom, which, without that improper act, would have flowed to the person who first used, or was alone in the habit of using the particular name or mark." 392 mjuHCTious. [chap. xti. symbols as to mislead tlie piiblic, there must be, to constitute a piracy, such, a distinctive individuality as to procure for the person the benefit of the deception which such general resem- blance will produce. 1 It is wholly immaterial whether the simulated article is or is not inferior to or of equal quality with the genuine. 2 But the injunction will not be granted where its effect would be to restrain the sale of a genuine article and aid in the sale of a simulated one.^ l^or will equity interfere where defendant has acted under such acqui- escence on the part of complainants as is equivalent to a license.* § 678. The protection afforded by courts of equity against the infringement of trade marks, is not dependent upon any exclusive right to a particular name or to a precise form of words. The right to relief is rather dependent upon the necessity of extending protection against the commission of fi-aud, and this fraud may consist in the use of a name to which defendant is entitled, if such use be coupled with other circumstances rendering it an infringement of complainant's rights. Thus, where defendant has used his own name in the trade mark, to restrain the use of which tho injunction is prayed, but has used it in such a connection ^nd under such circumstances as are calculated to mislead the public, and to enable him to obtain for himself a benefit to which he is not entitled in equity and good conscience, he wiU be enjoined.^ ' Croft v. Day, 7 Beav. 84; CoUaday v. Baird, 7 Upper Canada Law Jour- nal, 133. ' Taylor «. Carpenter, 11 Paige, 393; Coats v. Holbrook, 3 Sandf. Oh. R 586. ' Samuel i>. Berger, 34 Barb. 163. * Delaware etc. v. Clark, 7 Blatcb. 113. ' Croft V. Day, 7 Beav. 84. Tbig was a bill for an injunction under the following circumstances: An establishment for the manufactory of black ing had for many years been carried on under the name of Day & Martin, at 97 High Holborn, London. Upon the death of Day and Martin the business was conducted by Day's executors in the same name. A nephew of the deceased Day applied to another person named Martin for permis- sion to use his name in the manufacture and sale of blacking, and per- mission was granted. Day then commenced the manufacture of blacking at 90J^ Holborn Hill, and sold his blacking under the name of Day & CHAP. XVI.] TRADE MAEKS. 393 § 679. We have already seen that the intent with which the piracy was committed does not signify, and it may be laid Martin, using similar bottles and almost identical labels witli tliose used by the original Day & Martin, the labels being of exactly tlie same size and color and with the letters aiTanged in precisely the same manner. The injunction was allowed, Lord Langdale, Master of the KoUs, saying : " The accusation which is made against this defendant is this : that he is selling goods, under forms and symbols of such a nature and character, as will induce the public to believe that he is selling the goods which are manufactured at the manufactory which belonged to the testator in this cause. It has been very correctly said that the principle, in these cases, is this : that no man has a right to sell his own goods as the goods of another. Tou may express the same principle in a different form, and say that no man has a right to dress himself in colors, or adopt and bear symbols to which he has no peculiar or exclusive right, and thereby per- sonate another person for the purpose of inducing the public to suppose, either that he is that other person, or that he is connected with and selling the manufacture of such other person, while he is really selling his own. It is perfectly manifest, that to do these things is to commit a fraud, and a very gross fraud. I stated, upon a former occasion, that, in my opinion, the right which any person may have to the protection of this court, does not depend upon any exclusive right which he may be supposed to have to a particular name, or to a particular form of words. His right is to be protected against fraud, and fraud may be practised against him by means of a name, though the person practising it may have a perfect right to use that name, provided he does not accompany the use of it with such other circumstances as to effect a fraud upon others. It is perfectly mani- fest, that two things are required for the accomplishment of a fraud such as is here contemplated. First, there must be such a general resemblance of the forms, words, symbols, and accompaniments as to mislead, the public. And, secondly, a sufficient distinctive individuality must be preserved, so as to procure for the person himself the benefit of that decep- tion which the general resemblance is calculated to produce. To have a copy of the thing would not do, for though it might mislead the public in one respect, it would lead them back to the place where they were to get the genuine article, an imitation of which is improperly sought to be sold. For the accomplishment of such a fraud it is necessary, in the first instance, to mislead the public, and in the next place, to secure a benefit to the party practising the deception by preserving his own individuality. There are many distinctions, even more than have been stated, between these two labels. It is truly said, that if any one takes upon himself to study these two labels he will find several marks of distinction. On the other hand, the colors are of the same nature, the labels are exactly of the same size, the letters are arranged precisely in the same mode, and the very same name appears on the face of the jars or bottles in which the blacking is put. It appears, therefore, to me that there is quite sufficient to mislead 394 INJUNCTIONS. [chap. XVI. down as a general rule that, to constitute piracy of a trade mark, no fraudulent intent is necessary, and tlie injunction may be granted, even though defendant was ignorant that the devices or symbols used were the property of another, i But where two persons of the same name manufacture the same article, calling it by their name, the later manufacturer vpill not be enjoined in the absence of evidence that he has repre- sented his own article as that of the elder manufacturer. ^ But where defendant is asked for complainant's goods, and offers his own instead, sufficient proof of fraud is afforded, even though he should not represent the article as complain- ant's.* And if the acts complained of have a tendency to mislead the public, a denial of fraudulent intent will not prevent equity from granting the relief.* § 680. The adoption of a particular brand, the effect of the ordinary run of persons, and that the object of the defendant is, to persuade the public that this new establishment is, in some way or other, connected with the old firm or manufacturer, and at the same time to get purchasers to go to 90% Holborn Hill, and not to 97 High Holborn. I think what has been done here is quite calculated to effect that purpose, and the defendant must be restrained. My decision does not depend on any peculiar or exclusive right the plaintiffs have to use the names Day and Martin, but upon the fact of the defendant using those names in con- nection with certain circumstances, and in a manner calculated to mislead the public, and to enable the defendant to obtain, at the expense of Day's estate, a benefit for himself, to which he is not, in fair and honest dealing, entitled. Such being my opinion, I must grant the injunction restraining the defendant from carrying on that deception. He has the right to carry on the business of a blacking manufacturer honestly and fairly; he has a right to the use of his own name ; I will not do anything to debar him from the use of that or any other name calculated to benefit himself in an honest way; but I must prevent him from using it in such a way as to deceive and defraud the public, and obtain for himself at the expense of the plaintiffs, an undue and improper advantage." Millington v. Fox, 3 Myl. & Cr. 338; Rodgers «. Nowill, 6 Hare, 325; Leather etc. v. American etc., 11 H. L. 533; Coffeen v. Brunton, 4 Mc- Lean, 516 ; Davis v. Kendall, 2 R. I. 566 ; Partridge v. Menck, 3 Barb. Oh. 101, note. ' Burgess v. Burgess, 17 Eng. L. & Eq. 357. And see HoUoway v. Hoi- loway, 13 Beav. 309. ' Leather etc. v. American etc., 1 Hem. & M. 395. * Edelsten «. Vick, 11 Hare, 84. CHAP. XVI.] TRADE MAEKS. 395 vrhich would be to mislead the pubUc, by inducing them to buy the goods as those of another person, will not be per- mitted. ^ And the making up of goods in a form resembling complainant's, or the use of similar wrappers or labels, whether the similarity consists in size, color, shape, or general appearance, will generally be consid,ered strong presumptive evidence of piracy.* So the running of an omnibus, having names and devices similar to those of complainants, and sufficiently like them to deceive the public and draw away complainants' business, will be restrained. ^ So, too, the name ' Seixo ®. ProTizende, 1 L. E. Ch. Ap. 193. ' Croft V. Day, 7 Beav. 84; HoUoway v. Holloway, 13 Beav. 209; Blofeld V. Payne, 4 B. & A. 410. ' Knott «. Morgan, 2 Keen, 213. This was a bill filed by the proprietors of the London Conveyance Company, stating that the company was established under a deed, which was set forth in the bill, for the purpose of running omnibuses between certain points ; that their omnibuses were of a novel and superior construction ; and that the defendant, with the view and design of fraudulently procuring the custom of persons who were in the habit of using the omnibuses of the plaintiffs, began to run between the same points an omnibus on which were painted the words "Conveyance Company" and "London Conveyance Company," in such characters and parts of the omnibus as exactly to resemble the same words on the omnibuses of the plaintiffs ; that a star and garter were, in like manner, painted on the omnibus of the defendant, so as exactly to resemble the same symbol on the omnibuses of the plaintiffs; and that the green livery and gold hat bands, by which the plaintiffs distinguished the coachmen and conductors of their omnibuses, were in like manner imitated by the defendant. The bill further stated, that the plaintiffs served a notice upon the defendant, intimating that an injunction would be applied for if the defendant continued to use the title and insignia by which the omnibuses of the plaintiffs were distinguished; and that, after such notice, the defendant obliterated from the back of his omnibus the word " Company," and painted on each side of his omnibus, over the words "Conveyance Company," the word "Original," and between the words "Conveyance" and "Company" the word "for" in very small and invisible characters, so that there were then painted on the back of the defendant's omnibus the words "London Conveyance," and on each side the words " Original Conveyance for Company." The bill stated that the coachmen and conductors employed by the defendant continued to wear the same livery ; and it charged that such colorable imitation of the name and title of the London Conveyance Company was a fraud upon the plaintiffs and the public ; and it prayed an injunction. Lord Langdale, Master of the KoUs, after disposing of a preliminary question, held as 396 INJTJNCnONS. [chap. XVI. of a hotel is a trade mark whicli equity will protect by injunctioD.i But a word from a foreign language, signifying that the article is warranted, being unintelligible to pur- chasers, would seem not to come within the rule. ^ § 681. Eeasonable diligence must be used in maldng the application for relief against piracy of a trade mai^k, and proceedings should be instituted immediately upon the discovery of the fraud. ^ But the person injured may reUeve himself from the consequences of delay by showing that he had protested against the use of his mark.* § 682. "With regard to the parties entitled to the relief, it is held that the owner and his agent can not join in the action, although the agent's name appears on the trade mark.^ The relief resting upon the personal injury resulting from the use of complainant's mark, proceedings may be had against the offender wherever he resides, regardless of the locus of the offense. Hence an alien may bring the action, without averring that the goods of defendant have actually been sold within the jurisdiction where relief is sought.' Nor follows: "The only other question is, whetlier the defendant fraudulently imitated the title and insignia used by the plaintiffs for the purpose of injuring them in their trade ; and upon the affidavits and evidence before me, I have not the least doubt that the defendant did intend to induce the public to believe that the omnibus which he painted and appointed, so as to resemble the carriages of the plaintiffs, was, in fact, an omnibus belonging to the plaintiffs and the other proprietors of the London Conveyance Company. It is not to be said that the plaintiflFs have any exclusive right to the words " Conveyance Company," or " London Convey- ance Company," or any other words, but they have a right to call upon this court to restrain the defendant from fraudulently using precisely the same words and devices which they have taken for the purpose of distinguishing their property, and thereby depriving them of the fair profits of their business by attracting custom on the false representation that carriages, really the defendant's, belong to, and are under the management of the plaintiffs." ' Woodward •». Lazar, 21 Cal. 448. ' Gout V. Aleploglu, 6 Beav. 69, note. ° Chappell V. Sheard, 2 Kay. & J. 117 ; Chappell o. Davidson, lb. 133. " Motley B. Downman, 3 M. & C. 1 ; Harrison v. Taylor, 11 Jur. N. S. 408. 5 Delondre v. Shaw, 2 Sim. 337. » Taylor v. Carpenter, 11 Paige, 203 ; Collins Co. ■». Brown, 3 Kay & J. 438; Collins Co. «. Cowen, lb. 430. CHAP. XVI.] TRADE MAUKS. 397 will the relief be refused an alien because similar relief is withbeld from aliens in tbe country to which complainant belongs.* Where the trade mark is the property of several tenants in common, the relief may be had by either of thom individually. 2 And every one engaging in the sale of the spurious goods may be enjoined as a party to the fraud.' § 683. The property in a trade mark, being susceptible of assignment to anyone who takes at the same time the right to manufacture or sell the particular merchandise to which the trade mark pertains, the assignee may enjoin an infringement of the right.* And where the mark thus assigned designates truly the place where the goods are manufactured, and indicates with a reasonable degree of certainty their ovraer- ship, the fact that owing to changes in the firm, by death and otherwise, the name on the label is not the exact name of the manufacturers, does not constitute a sufficient objection to warrant a court of equity in withholding relief, in the absence of any attempt at deception.^ § 684. The general principles upon which is founded the lurisdiction of equity over the piracy of trade marks, are likewise extended to literaiy publications, and an author or publisher acquires a i-ight of property in the peculiar title of his work, or in the use of his name in connection therewith, for the violation of which he may properly apply to a court of equity for relief. ^ Thus, the publication of a magazine in the name of one who has ceased to authorize it .will be enjoined.'' A distinction, however, is taken between repre- senting the work as original, though under the same title, and advertising it as that of another author. « And while the ' Coats ». Holbrook, 3 Sandf. Oh. 587. 2 Dent D. Turpin, 3 J. & H. 139. 8 Coats V. Holbrook, 3 Sandf. Ch. 587. * Dixon etc. ». Grugenheim, 2 Phil. Legal Gazette, 105. And see Con- gress etc. Co. V. High Rook etc. Co., 45 N. Y. 391. ' Dixon etc. ». Grugenheim, 2 Phil. Legal Gazette, 105. ' Bell V. Locke, 8 Paige, 75 ; Hogg v. Kirby, 8 Ves. 215 ; Seely t). Fisher, 11 Sim. 583; Chappell v. Sheard, 2 Kay & J. 117. ' Hogg ji. Kirby, 8 Ves. 215. sid. 398 nsTJiTNcnoNS. [chaj. xvi. relief will be granted to restrain defendant from using the name of complainant's newspaper, yet it must clearly appeal that the name is used in such manner as to deceive and mislead the public, and to injure complainant in the good wiU of his own publication. ^ § 685. It is also to be remarked that an injunction is proper only in such cases as are clear, or at least free from all reasonable doubt. Thus, where defendant has sold his news- paper, with all the profits, rights and incidents pertaining to it, and afterward, and at the same place, begins another under a name somewhat similar, a doubt as to the identity of the two papers is sufiicient ground for withholding the reliefs And the publication m.ust have an actual existence before equity will interfere, and one who has advertised his intention of publishing a periodical under a certain name, does not thereby acquire such an exclusive right to that name, in advance of publication, as will entitle him to an injunction. ' But where a song has been rendered popular by being sung by a particular person, its publication with a picture of the singer upon the title page, with a statement where and by whom it has been sung, gives the owner such rights of property therein as will authorize the interference of equity to restrain a similar publication in imitation thereof, even though the words of the song are changed.* Nor wiU it avail the defendant that he has warned his servants or employees to explain to purchasers that the songs are different.^ § 686. The sale of one's interest in a copartnership carries with it the good will of the business, together with all advan- tages that may pertain to the firm name or place of business. Hence a retiring partner will not be allowed to renew the business under such a name as to imply that he is the sueces- Bor to the old firm.^ Upon the formation of a partnership, a ' Bell v. Locke, 8 Paige, 75. « Snowden v. Noah, Hopk. Ch. 347. > Maxwell v. Hogg, 3 L. B. Ch. Ap. 307. * Chappell «. Slieard, 2 Kay & J. 117. » Chappell V. Davidson, 3 Kay & J. 128. « Churton v. Douglas, 5 Jur. N. S. 887. OHAP. Xn.] TRADE ItAEKS. 399 trade mark belonging to one of the partners, in the absence of any agreement to the contrary, becomes partnership prop- erty, ^ and on the dissolution of the firm, in the absence of any stipulation or agreement, each of the partners has the right to use the mark.^ The use, by new partners or their successors, of the old trade mark of a firm, is not considered a piracy, since it is merely equivalent to an announcement that the new partners are continuing the business formerly carried on by those whose name constituted the trade mark.^ § 687. A corporate name is regarded as a trade mark, and as such it is entitled to the protection of a court of equity. And the right to the use of such name being matter of record, equity will not refuse to enjoin its improper use by a defendant corporation because the right has not been established at law.* Nor does the jurisdiction to restrain the piratical use of such name rest upon the insolvency of the defendant. ^ But the corporation whose name is improperly used must itself be a party to the suit, and the proceedings can not be brought by one of its bondholders, unless it has refused to proceed after being requested so to do." § 688. The protection extended by courts of equity to trade marks, is not confined to artificial commodities, or to such as are the result of human ingenuity and skill. The essence of the injury consisting in the fraudulent sale by defendant of the goods or commodities of complainant as his own, the violation of right is the same, whether the com- modity in question has been produced by the hand of nature or of man. And where the owner of a natural product, such as mineral water, has applied to it a particular name, under which name he has built up a large and profitable business in the sale of the article, he is entitled to an injunction to protect ' Bury «. Bedford, 33 L. J. Ch. 465. ' Banks v. Gibson, 34 Bear. 566. * Leather etc. «. American etc., 11 H. L. 523. * Newby v. Oregon etc. Co., Deady's Eeports, 600. "Id. «Id. 400 iNjiinCTiOMS. [chap. xn. him in the exclusive use of the name.i And complainants who have purchased the spring and the interest of the original ovmers, who invented and adopted the trade mark, are entitled to the same protection as the original owners themselves. ^ § 689. It is not every false statement with respect to arti- cles sold which will constitute such a grievance as to warrant the interference of a court of equity, and a distinction is to be drawn between representations that the goods are the same as those of another, and statements that they are in fact the identical goods of another person, when in reality they are not. While, therefore, the person selling may represent his goods to be equal to or the same as those of another dealer, when they are inferior in quality, or different in kind, or that he is the inventor, when, in fact, he is a mere imitator, yet if he does not represent his goods as the actual manufacture of another, equity will not interfere, but will leave the parties to their remedy at law.* But the unauthorized publication of one's name in the prospectus of a company as one of its trustees, will be restrained.* § 690. The certificate of the registry of a trade mark issued by the commissioner of patents, in pursuance of the act of congress,^ is not conclusive evidence that the device or symbol claimed as a trade mark is valid and legal as such, and this question is open for investigation by a court of equity, upon an application for an injunction. *> And a package or barrel can not, by reason of its peculiar form, dimensions, or shape, constitute a trade mark, independent of any symbol, figure, or device impressed upon or connected with it.' ' Congress etc. Co. v. High Rock etc. Co., 45 N. Y. 291. 'Id. ' Seely ». Pislier, 11 Sim. 583 ; Leather etc. «. American etc., 11 H. L. 533 ; Clarke ii. Freeman, 11 Beav 113. ♦ Boutli ». Webster, 10 Beav. 563. = Act of Congress of July 8, 1870, 16 Statutes at Large, 198. " Moorman v. Hoge, 14 Int. Rev. Record, 155, decided in the United States Circuit Court for the District of California, October Term, 1871. ' Id. Sawyer, J., delivering the opinion of the court, says : " I have examined with care a large number of cases involving infringements of trade marks, including all the recent cases which I have been able to find, CHAP. XVI.] TRADE MAEKS. 401 § 691. In applications for relief by injunction against the piracy of trade marks, the question to be considered is, not so far as tliey bear upon tlie question in hand. It would be an arduous and unprofitable task to comment upon tbem all, and I shall content myself with stating briefly the result of my examination. In every case there was a trade mark proper, such as is indicated in this opinion, embrac- ing some name, symbol, figure, letter, form or device, cut, stamped, cast, impressed or engraved upon, blown into, or in some manner attached to or connected with the article manufactured or sold, or the package contain- ing it, or the covering or wrapping thereof. When the vessel containing the article was of glass, iron or other metal, whether of peculiar shape and dimensions or not, the trade mark pi-oper was often blown, or cast, in the yessel, sometimes on a shoulder, sometimes into the body of the vessel. There are various ways of impressing upon or connecting with the vessel, package or article, the mark, but there always was a mark in fact, other than the shape jor size of the vessel, or package. I find no case where the vessel, box, package, or whatever contained the article, has been held to constitute a trade mark by reason of its peculiar form or dimen- sions, independent of any symbol, figure or device impressed upon, or connected with it for a trade mark. I find no case where the use of a package of peculiar form and dimensions has been restrained without having imprinted upon or connected with it some other symbol, word, letter, or form, adopted as a trade mark. There are numerous cases where the use of a bottle, or other vessel, or package, having upon it the device adopted as a trade mark, has been enjoined, but I find none restraining the " use of the bottle, vessel or package without the device impressed upon or connected with it. A manuscript copy of a recent decree rendered by the court of chancery at Louisville, Kentucky, in the case of Wilder ■». Wilder, has been famished me by complainant's counsel as a case in point. But in that case the defendants were restrained from selling ' any preparation or compound under the name and style of "J. B. Wilder & Go's Stomach Bitters," printed, stamped, or engraved upon the bottles, labels, wrappers, covers, boxes or packages thereof. Also from using the bottle herein exhibited marked "B 2," and from imitating or causing to be imitated in any manner, either the bottle or label of the plaintiff herein marked respec- tively "A and B." ' This case does not appear to be in any respect incon- sistent with the view indicated. Here was a trade mark proper in connec- tion with the bottle, and as the court restrained defendants from selling the compound in connection with the trademark, 'printed, stamped, or engraved upon the bottles,' doubtless the complainants' bottles referred to as exhibits in that case, had the trade mark impressed upon or blown into the bottles, and this being so, it would be impossible to use those bottles without their having the trade mark on them, and therefore also using the trade mark itself. The trade mark in such cases constitutes a part of that particular bottle. If this is not the true state of facts, then the copy of the decree furnished me does not show what the exact case is; At all events, 26 402 INJUNCTIONS. [chap. xyi. whether manufacturers or persons skilled in that particular business could distinguish between the two articles, but whether the general public would be likely to be deceived by it does not appear to be an exception to the general rule before stated. There are numerous cases where the use of a particular bottle or package has been restrained, when the bottle or package had the trade mark impressed upon or blown into its structure, making it a part of the pack- age itself, and it was necessary to include the particular description of bottle in order to restrain the use of the trade mark indelibly impressed upon it. But, as before stated, I find no instance where the use of a bottle, vessel, or package of a peculiar form and size has been enjoined with the trade mark of the complainant, or colorable imitation thereof used upon or connected with it omitted. Doubtless a bottle, vessel, or package of a peculiar form may be used as auxiliary to the trade mark proper, and may be of use in solving a question of intent of a parjy in imitating or using an evasive simulation of another's trade mark. As, for instance, a party may adopt a trade mark, and imprint it upon or connect it with the package of peculiar shape containing the articles of his manufacture. Another party might make a colorable simulation of the trade mark so used, but so difl:er- ent as to render it doubtful upon a mere inspection of the simulation of such mark alone, whether it .was intended to be an imitation oi not, or whether it would be likely to mislead the public. But if the imitator should, in addition to this, use the peculiar shaped package adopted by the party entitled to the trade mark, and impress upon or connect with it, the simulation of the trade .mark, all doubt as to the intention and the effect would at once vanish. In this view a peculiar package might be a valuable auxiliary to the trade mark, although it could not, <5f itself alone, constitute a lawful trade mark, or a substantive part of a lawful trade mark. But its use would be in aiding to determine the character and effect of a colorable imitation of the trade mark proper, and the use of the imitation, or the simulated trade mark, or the use of the package with such simulation connected with it, would be the thing restrained. In this case there is no pretense that there is any imitation, or colorable simulation, of the marks and brands upon the package, or barrel. The use of the barrel with a simulation of the complainants' trade mark impressed upon it, would, doubtless, be restrained. But to extend the privilege of trade mark to the barrel in question alone, without having impressed upon, or, in any way connected with it, any of the other words, symbols or devices claimed and used by the complainants as a part of their trade mark, or any colorable imitation of it, would, in my judgment, be to go further than amy ease heretofore decided, and extend the privileges of trade marks to subjects not recognized by any established legal principles applicable to the subject. After careful examination of the question, my conclusion is, that the barrel in question, without any other marks, or symbols, is not, and that it can not become, a lawful trade mark, or a substantive or CBLAP. XVI.] TBADE MAEK8. 403 the alleged imitati9n.i Nor will the court require evidence of actual deception before interfering, where it is of opinion that the use of the particular mark which it is sought to enjoin is likely to deceive. ^ And the relief may be granted, although the whole of the trade mark does not appear to have been pirated.* Nor is it requisite that the degree of resem- blance should be such as to, deceive persons on seeing the marks side by si^e, but it must be such that ordinary purcha- sers, proceeding, with ordinary care, would be likely to be deceived.* And where the court is of opinion that the use of defendant's name or device on a literary publication is not such as to mislead persons of ordinary intelligence into pur chasing defendant's publication for that of complainants, an injunction will be withheld. ^ Nor will the use of a particu- lar label be restrained on the ground of its general resem- blance to the trade mark of another manufacturer, where defendant's label differs in those points which a purchaser would be most likely to examine to ascertain whose article he was purchasing.' § 692. While one who has been in the actual employment of a firm of established reputation in a particular business, may, on beginning business of a similar character on his own account, inform the public that he has been in such employ- ment, yet if he uses the name of the former firm in such manner as to mislead persons into the belief that he is carry- ing on the same business, or a branch of the business of the old firm, an injunction will be allowed.'' Though in such case the court may, before granting the relief, require satisfactory integral part of a lawful trade mark, and that complainants have no exclu- sive right to its use as such. The result is, that complainants' bill must he dismissed with costs, and it is so ordered." ' Shrimpton v. Laight, 18 Beav. 164. * Braham v. Bustard? 11 W. E. 1061. •Id. * Seixo ®. Provezende, L. R. 1 Ch. 192. ' Bradbury v. Beeton, 39 L. J. Ch. 57. ' Blackwell v. Crabb, 36 L. J. Ch. 504. ' Glenny v. Smith, 2 Dr. & Sm. 476; 'Williams d. Osborne, 13 L T. N. 8. 498. And see Crofl v. Day, 7 Beav. 84 404 njJUHonous. [chap. xn. proof, not only that defendant's use of the name is likely to mislead the public, but that complainant has warned him that it will have that effect, i § 693. We have already seen, in discussing the interference of equity to prevent the infringement of patents for inven- tions, that a patentee, whose rights have been infringed, is not bound to rely on the assurances or promises of the person infringing, that he will not repeat the wro^, and that such promises constitute no bar to relief by injunction. ^ The same doctrine prevails in cases of the piracy of trade marks, and the owner of a mark or device which has been illegally taken by another, is entitled to an injunction, notwithstanding defendant's promise to refrain from continuing the piracy.' But such false representations as amount to the slander of another's reputation and name, and as are calculated to bring them into contempt, do not afford sufficient foundation for the interference of equity, the proper remedy, if any, being by proceedings at law for a libel.* § 694. * As in the case of infringement of patents or copy- rights, one whose trade mark has been pirated is entitled to an account of the profits accruing to defendant by reason of his wrongful appropriation of the trade mark.^ But where one has, in good faith, purchased articles bearing a spurious mark, for the purpose of again selling them in the course of trade, he wiU only be required to account for such profits as may have accrued after notice of the piracy." And upon an inquiry as to the damages sustained by an unlawful appropria- tion of a trade mark, the burden lies upon complainant of establishing actual damage, by loss of custom or otherwise, and the court will not assume that complainant would have sold all the goods that defendant has sold marked with the ' "Williams v. Osborne, 13 L. T. N. S. 498. • See § 630, ante. ■ Routh V. Webster, 10 Beav. 561 ; "Welch v. Knott, 4 Kay & J. 747; Mil- lington iS. Pox, 3 Myl. & Or. 888. • Martin v. "Wright, 6 Sim. 297; Seely v. Fisher, 11 Sim. 682;Caarkeii. Freeman, 11 Beav. 113. • Burgess v. Hills, 26 Beav. 244; Oartier v. Carlile, 31 Beav. 292. « Moet V. Couston, 33 Beav. 578. CHAP. XTt.J TEADE MAKES. 406 counterfeited device. * And thougli an injunction may be granted, even where the scienter is not proved, the court may withhold an account of profits, where the owner of the trade mark has been guiltv of laches in seeMng protection against the piracy.* • Leather etc. Co. v. Hirsclifleld, 1 L. K. Eq. 299. » Harrison «. Taylor, 11 Jur. N. S. 408. 406 iNjmJcnoifs. i [chap. xvn. CHAPTER XVII. OF INJUNCTIONS PERTAINING TO CONTRACTS ANB THEIR ENFORCEMENT. I. NATDUB AMD GKOimDS OP THE JtTKISDICTION. , II. Injunctions against the Negotiation and Collection ob' Promissoet Notes. III. Injitnctions against tee Beeach of Neoatitb Contracts. IV. CONTEACTS IN ReSTEAINT OP TeADB. I. Natdee akd Geotoids of the JiJEisDianoN. § 695. Foundation of the relief. 696. Requisites of the contract. 697. Remedy at law bars relief in equity. 698. Fraud a ground for relief against enforcement of contract. 699. Diversion of specific fund ; process of manufacture. 700. Jurisdiction not limited to original contracting parties. 701. Conveyance in trust to a religious association. 702. Gaming contracts. 703. Usurious contracts. 704. Writ not granted where only part of debt is usurious. 705. Not granted where usury might have been pleaded at law. 706. Contracts pending litigation. 707. Complainant must come into court with clean hands. 708. Injunctions in aid of specific performance. § 695. While the remedy for past violations of contract is to be sought only in courts of law, the protection of contract rights and the enforcement of specific covenants, are matters which are properly cognizable in courts of equity. The juris- diction by way of interlocutory injunction to resti-ain the violation of contracts, is based upon the necessity of protecting the legal right, and is exercised for the prevention of irrepara- CHAP. XVU.j COMTRACTS. 407 ble mischief. To warrant a court of equity in interfering, tlie contract itself must be free from doubt, and the injury apj)re- hended from its violation must be of such a nature as not to be susceptible of adequate compensation in damages at law.' And a doubt as to the correctness of the construction of the contract on which the injunction is asked, is sufficient ground for refusing to interfere.^ Nor will an injunction be allowed to restrain the violation of a contract tainted with champerty and maintenance.^ § 696. It is to be observed that the contract concerning which the injunction is sought must be of such a nature as to be susceptible of enforcement by decree, and where tlie bill itself oh which the injunction is sought fails to show such a contract, the injunction, which is intended in aid of the general relief sought, will not be allowed.* Nor is it suffi- cient that the legal right under the contract and its violation are clearly made out, since, if the agreement is of such a nature that a court of equity can not enforce specific perform- ance of its terms, or if the injury is one for which ample redress can be had at law, equity will not interfere.'' And if the contract is uncertain and vague in its provisions, or is of an unjust and oppressive character, the relief will be withheld. « § 697. The fact that ample remedy exists at law for the violation of an agreement, is always a sufficient objection to the interference of equity. Thus, where a railway has been constructed under a contract whose terms provide for its con- struction in. a particular manner, for the protection of the owners of real estate over which the road passes, the remedy for violation of the agreement is not by enjoining the use of the road until the terms of the contract are complied with, ' Morris etc. e. Society etc., 1 Halst. Ch. 203. 'Id. ° Gregerson v. Imlay, 4 Blatcli. 503. * Canton etc. v. Northern etc., 21 Md. 383. ' Collins «. Plumb, 16 Ves. 454; Mann ii. Stephens, 15 Sim. 379 ; Munro e. Wivenho etc., 11 Jur. N. S. 613. ' Mann ii. Stephens, 15 Sim. 379 ; Kimberley v. Jennings, 6 Sim. 340 ; Talboti). Ford,,13Sim. 173. 408 MJTJNCTIONS. [CHiP. XVJZ. but by an action at law for pecuniary damages, and in sucli a case equity will not interfere. ^ § 698. Fraudulent representations and oppressive conduct in obtaining an agreement or contract, fi'equently afford ground for relief in equity to prevent its enforcement at law against tbe contracting party on whom the fraud was exer- cised. Thus, a perpetual injimetion has been granted against proceedings at law to recover an annuity upon a contract entered into on the strength of mistaken and false representa- tions as to the value of certain property.^ And an injunction to prevent the sale of mortgaged premises has been made perpetual upon proof that through the influence of the mort- gagee the mortgagor had, by habitual drunkenness, become reduced to a condition of imbecility bordering on insanity, the mortgagee being unable to show any valid consideration for the contract.^ § 699. An injunction may be granted to prevent an improper diversion of a specific fund, out of which, by agree- ment between the parties upon suiEcient consideration, pay- ment is to be made for certain stock subscribed. ^ And one who discovers or invents a process of manufacture which he does not disclose to the public, has such a property therein, regardless of whether the process is patentable, as will be protected in equity by enjoining one who, in violation of his contract and in breach of confidence, undertakes to apply the process to his own use or that of third persons.^ § YOO. The jurisdiction of equity for the protection and enforcement of contract rights is not limited to the original parties to the agreement, but may be exercised in favor of their assignees, and may be invoked on their behalf in aid • Pusey v. Wright, 31 Pa. St. 387. * Dale ■». Boosevelt, 5 .Jolms. Ch. 174. « Van Horn ii. Keenan, 38 111. 445. ' Ashe V. Johnson's Adm'r., 3 Jones Eq. 149. ' Peahody v. Norfolk, 98 Mass. 453. Complainant in this case had huilt a mill and furnished it with machinery invented hy himself for manufac- turing cloth hy a secret process. An engineer in his employ, who had contracted not to give information concerning the machineiy, hut to pre- serve the process a secret, was enjoined from violating his contract. OHAP. XVn.] CONTEACri'S. 409 of proceedings at law. And where one has parted with his equitable interest in a contract not assignable at law, he may be restrained from interfering with or preventing the use of his name by the assignee in enforcing the contract by action at law, or from attempting to dismiss the action, i § 701. Where real estate is conveyed to the trustees of a religions association to be used as a place of worship, in accordance with the doctrines and forms of a particular church, the contract may be protected in equity by restrain- ing its violation. And if ministers of a different faith, and who are not recognized by the church prescribed as the standard, are permitted to officiate in the church, there is such a deparbure from the trust created by the original contract as to warrant a court of equity in interfering. ^ And persons who have contributed to a fund raised by subscription, on con- dition that an educational institution should be permanently located at a specified place, are entitled to the aid of equity to restrain its removal from such place. The jurisdiction in such case is exercised upon the ground that the acceptance of the conditions constitutes a contract, the attempted violation of which may be enjoined. ^ § 702. In the case of a contract void for want of sufficient consideration, as a note or bond given for money lost at gaming, the defense being one of a purely legal nature, equity will not interfere to restrain the enforcement of judgment, where no defense was interposed to the action at law and no excuse is offered for having failed to defend.* If, however, defendant is prevented by surprise from asserting his defense to an action upon a gaming contract, he will not be debarred from relief in equity, even though he made no effort to obtain a new trial in the action at law.^ If it is doubtful whether the contract oh which a judgment has been obtained was given for ' Deayer v. Eller, 7 Ired. Eq. 34. ' Attorney General v. "Welsh, 4 Hare, 573. For furtlier illustrations of the same principle, see Chapter V, ante. ' Hascall ». Madison University, 8 Barb. 174. * Giddens ». Lea, 3 Humph. 133 ; Jones v. Jones, N. C. Term R. 110. ' White V. Washington's Ex'r., 5 Grat. 645. 410 nurajcnoNS. [chap, xvm a gaming consideration, and is therefore void, and if there is also doubt as to whether the judgment creditor to whom the debt was transferred took it under the belief that the considera- tion was lawful, a preliminary injunction granted against the judgment may be retained until the facts can be determined.' But it has been held, under a statute prohibiting gaming, that a judgment founded upon a gaming contract may be enjoined, although the contract has been assigned to an innocent holder, ignorant of its origin, and although no defense was interposed at law.^ § 703. Proceedings at law for the enforcement of usurious contracts mil, as a general rule, be enjoined only upon condi- tion that the party aggrieved make actual payment or tender of the amotmt really due.' But if defendant answers without availing himself of this objection, an injunction already granted will not be dissolved, where complainant oifers to pay the amount actually due. * But where an injunction is allowed to prevent a sale of land under a trust deed, until the question of usury can be determined, and a verdict at law determines that the contract was usurious, the injunction should not be perpetuated for the entire amount, but only for that portion which is usurious.^ § 704. While an injunction may properly be allowed against the sale of real estate under a deed of trust to secure a contract alleged to be usurious, until the question of usury can be determined, or until the lender can establish the valid- ity of his contract at law, on the ground that the proceedings being in pais, the borrower is without his day in court, yet if the usurious contract embraces likewise a pre-existing, valid debt, unaffected by the usurious debt, or by being ' Nelson's Adm'r. i>. Armstrong, 5 Grat. 354. " 'Woodson V. Barrett, 3 Hen. & M. 80. And see Skipwith «. Sti-otlier, 3 Kand. 214. 8 Morgan v. Schermerliorn, 1 Paige, 544; Miller v. Ford, Saxt. 358; Eogers -o. Rathtun, 1 Johns. Oh. 367; Tupper i>. Powell, lb. 439; Fanning 0. Dunham, 5 Johns. Ch. 123; Turpin «. Povall, 8 Leigh, 93. * Morgan v. Schermerhorn, 1 Paige, 544. ' Bell V. Calhoun, 8 Grat. 33. CHAP. XVn.] C0NTEAOT9. 411 coupled therewith, a different rule applies, aad proceedings to enforce the debt secured by the deed of trust will not be restrained for the purpose of compelling the obligee in the bond to establish his claim at law.^ And it is to be observed that in those cases where preliminary injunctions are granted to restrain the enforcement of deeds of trust, on the ground that the contract to secure which they were given was usurious, the relief is continued only until the question of usury can be determined. If, therefore, the validity of the contract is fully established, the injunction will be dissolved, otherwise it may be made perpetual.^ § 705. While, as we have just seen, equity may under some circumstances interfere to prevent the enforcement of contracts tainted with usury, yet if the cause has been sub- mitted to a legal forum and there decided, a court of equity will not afford relief against the judgment, in the absence of any special circumstances of fraud, or complicated and embar- rassing facts connected with the transactions alleged to be usurious. In all such cases it is a sufficient objection to the exercise of the jurisdiction that the usury, if any, might have been urged as a defense to the action at law, and defendant having neglected to avail himself of the opportunity of defending in the legal forum, is debarred from relief in equity. 3 If, however, the remedy at law is surrounded with embarrassment and difficulty, the transaction involving a large number of usurious securities, and being exceedingly complex in its nature in consequence of the devices resorted to for the purpose of concealing the usury, a court of equity may properly extend its aid by injunction.* § 706. Although equity has undoubted jurisdiction to restrain parties from entering into such contracts, pending ' Marks ». Morris, 2 Munf. 407 ; Bank of Wasliington v. Arthur, 3 Grat. 173. " Marks v. Morris, 3 Munf. 407 ; Martin v. Lindsay's Adm'rs., 1 Leigh, 499 ; Fitzhugh v. Gordon, 3 Leigh, 636.' " Lindsley v. James, 3 Cald. 477 ; Morgan v. England, Wright, Ohio, 113; Lansing v. Eddy, 1 Johns. Ch. 49; Buchanan v. Nolin, 3 Humph. 63; McKoin 11. Cooley, lb. 559. * Prierson v. Moody, 3 Humph. 561. 412 INJDNCTIOHS. [chap. XYB. litigation, as may embarrass plaintiff in his action at law, yet this jurisdiction is to be exercised in the sonnd discretion of the court, after weighing the relative convenience and incon- venience likely to result to the parties. And where it is apparent that the injury which would result to the plaintiff by refusing the injunction, as compared with that which defendant would sustain by its being granted, is extremely small, the relief will be withheld, i § 707. He who seeks the aid of equity to enjoin the viola- tion of an , agreement, or for the protection of his contract rights, must himself come into court with clean hands, and to entitle himself to relief he must have carried out as far as possible his own part of the contract. ^ So, too, he must show that he has used reasonable diligence in asserting his rights and in demanding their protection, and unreasonable delay in seeking the aid of a court of equity, or acquiescence in the violation of the agreement in question, will generally prove a bar to the exercise of the jurisdiction. ^ § 708. To warrant a court of equity in granting an injunc- tion in aid of the specific performance of a contract, it will ' Shrewsbury etc. v. Shrewsbmy etc., 1 Sim. N. S. 410. The following observations of the Vice Chancellor in this case clearly present the grounds on which relief is refused: * * "Although I am iDerfectly satisfied of the authority of this court to issue an injunction, not merely to restrain parties from doing acts, but also from entering into contracts pending litigation that may embarrass the plaintiff in his suit, and that the court is entitled to do so whenever it sees there is a fair ground for litigation raised by the plaintiff, yet that right of the court must be guided by a discretion not to exercise it where it sees that on the balance of conven- ience and inconvenience between interim interference and nm, interim interference, the balance greatly preponderates in favor of the defendant and against the plaintiff. Now, here, the injury to the plaintiffs, in com- parison with the injury to the defendants, is extremely small. * * And, on the whole, if the convenience and the inconvenience are weighed against each other, the inconvenience seems to me to preponderate, beyond all measure, in favor of the party who has the legal right to enter into any legal contract he pleases. That is the short ground on which I feel myself bound to refuse the injunction." " Stiff V. Cassell, 3 Jur. N. S. 348 ; Fechter v. Montgomery, 88 Beav. 23. ' Powell v. Allarton, 4 L. J. Ch. N. S. 91 ; Maythorne «. Palmer, 11 Jur. N. S. 330 ; Roper ».' Williams, 1 Turn. & R. 18. OHAP. XVn.J CONTEACTIS. 413 usually suffice if comjlainant establislies a jprima fade case entitling Mm to specific performance, and it is not necessary that it slionld concltisively appear that he will maintain his case upon the final hearing, i It is to be observed, however, that an injunction in aid of specific performance, being merely ancillary to the main purpose of the bill, is dependent upon that and must stand or fall with the bill. And where it appears that the contract which it is sought to enforce specifically is not concluded or certain in all its parts, so as to be properly enforced, the injunction will be dissolved for want of equity in the bill. 2 So, too, if there are disputes concerning the rights of the parties under the contract, such disputes involving the very terms and obligation of the contract itself, an injunction will be withheld until the rights of the parties are ascertained and adjusted.* And if upon the case as made out by the bill, complainant is not entitled to a specific performance, he can not have an injunction, which is merely ancillary to the prin- cipal object of the suit.* II. iNJrarcnONS AGAINST THE NEGOTIATION AND COLLEOHON OF Peomssoet Notes. § 709. Fraud or duress a ground for relief. 710. Violations of trust ; parties. 711. EfiFect of injunction restraining payment of note. 713. Fraud ; undue influence ; threats. § 709. The aid of equity is sometimes invoked to restrain the collection of commercial paper, where its enforcement would be inequitable and against conscience. And it may be asserted as a rule, that where promissory notes have been obtained by fraud or duress, or by undue influence and without adequate 'Powell ®. Lloyd, 1 T. & J. 437; Attwood «. Barham, 3 Russ. 186; Crosbie ». Tooke, 1 Myl. & K. 433. • McKibbin «. Brown, 1 McCart. 13. • Brown's Appeal, 63 Pa. St. 17. • Allen ip. Burke, 3 Md. Ch. 534. 414 iNJTJNcnoNS. [chap. xvn. consideration, an injunction may be . properly granted to restrain their collection, if in the hands of the payee, i Thus, where complainant has been induced to give his notes and a mortgage upon threats of a prosecution for perjury, which threats were utterly groundless, the collection of the securities will be restrained.^ So undue influence exercised upon the maker of a note, who was a person of weak mind and con- stantly given to intoxication, has been- deemed sufficient ground for enjoining a suit upon the note.* So, too, fraudu- lent representations in the sale of a patent right, or the failure of the patent, which constituted the original consideration for which the notes were given, has been held sufficient to wai-rant an injunction against their collection.^ § 710. "Where one has received commercial paper which has been entrusted to him for a special use or purpose, and in breach of the trust reposed in him, he attempts to convert the paper to a different use, he may be enjoined from any act, such as carrying on a suit at law, which may be the means or instrument of the violation of trust. ^ And the assignees of such note, taking it under circumstances sufficient to apprise them of the fraud or breach of trast, may be enjoined from proceedings at law for its enforcement.' But if a note has passed into the hands of a iona fide holder for valuable con- . sideration, proceedings at law for its collection will not be restrained on the ground of fraudulent representations by the payee to the maker.' Nor will the fact that a payment was made upon the note while in the hands of the payee, who assigned it without indorsing the payment, warrant an injunc- tion to restrain proceedings under a judgment recovered by the assignee of the note.' ' Sacket d. Hillhouse, 5 Day, 551; Darst n. Brockway, 11 Ohio, 463; James ■». Roljerts, 18 Ohio, 548 ; Rembert o. Brown, 17 Ala. 667. ' James v. Roberts, 18 Ohio, 648. •Rembert «. Brown, 17 Ala. 667. * Sacket v. Hillhouse, 5 Day, 551 ; Darst v. Brockway, 11 Ohio, 462. ' Atlantic etc. v. Tredick, 5 R. 1. 171. •Id. ' Dougherty 'd. Scudder, 3 0. E. Green, 248. * Cummins u. Bentley, 5 Ark. 9. OHAP. XTO.] 00NTEAOI8. 415 § 711. With regard to the effect of a temporary injunction restraining the payment of a note, as where the makers and guarantor have been enjoined from making payment, it is held that the writ constitutes no bar to the recovery of a judgment upon the note itself. ^ But in no event should parties be enjoined from the payment of notes who are not made defend- ants in the bill, and an injunction granted against such per- sons will be dissolved because of the non-joinder. ^ § 712. The negotiation of commercial paper may be enjoined where it was obtained through fraudulent or improper con- duct, rendering it against conscience to enforce it, and where there is danger of its passing into the hands of innocent purchasers for valuable consideration and without notice, whereby the maker would be cut off from asserting his defense at law.^ And undue influence used in obtaining a note will warrant the court in enjoining its collection. Thus, in the case of a young woman who had just attained her majority, and who was induced through the representations of her rela- tives, with whom she lived and by whom she was largely controlled, to give a promissory note, without consideration and in ignorance of its terms, an injunction was allowed against the enforcement of judgment upon: the note.'* So where notes have been inequitably and unjustly extorted from complainant ' Campbell v. Gilman, 26 111. 130. » Fellows B. Fellows, 4 Johns. Ch. 25. ' Hood V. Aston, 1 Buss. 412 ; Sharp b. Arbuthnot, 13 Jur. 219 ; Green o. Pledger, 3 Hare, 165; Thurman b, Burt, 53 111. 129. * Bspey V. Lake, 10 Hare, 260. " I take It to be quite clear," says the Vice Chancellor, "that the principles of this court go to this extent — that, in the case of a security taken from a person just of age, living under the Influence and in the house of another person, with a relationship subsist- ing between such other person and the person from whom the security is taken, which constitutes anything in the nature of a trust, or anything approaching to the relation of guardian and ward, or of standing in loco parentis to the surety, this court will not allow such security to be enforced against the person from whom it is taken, unless the court shall be per- fectly satisfied that the security was given freely and voluntarily, and with- out any influence having been exercised by the party in whose favor the security is made, or by the party who was the medium or instrument of obtaining it." 416 iNJUHcnoNS. [chap. xvn. by force of judicial process, issued contrary to an express agree- ment, and such notes are without consideration in fact or in law, the payee may be enjoined from putting them in circulation by assignment or otherwise. ^ III. Injunctioiis against the Beeach of Negattve Oomteacib. § 713. The remedy analogous to specific performance. 714. Covenants in lease enforced by injunction. 715. Covenant not to carry on a certain business enforced. 716. Illustrations of tbo rule; sub-lessees may be enjoined. 717. Relative convenience not regarded wbere the right and its violation are clear. 718. Otherwise if these are in doubt. 719. Breach of covenant need not amount to nuisance. 730. Certainty ; damages ; threatened breach. 731. When covenant may be controlled by recitals. 733. Construction of contract as to penalty and liquidated damages. 733. The same. 734. Present in distinction from reversionary rights. 735. Covenant need not run vyith the land. 736. Lessor's conduct may debar him from relief. 737. Negative covenants in conveyances of realty. 738. Subsequent purchasers may be enjoined. 739. Covenants for mutual benefit of purchasers. 730. Laches a bar to relief. 781. Injunction not allowed where contract can not be enforced. 783. General rule applicable to contracts for personal service. 733. Contracts containing both afBrmative and negative stipulations. 784. Distinction. 735. Purely negative contract. § 713. The remedy by injunction to prevent the violation of negative agreements, or contracts not to - do a particular thing, is closely akin to the remedy by way of specific performance of agreements of an affirmative nature. In boli cases the object sought is substantially one and the same, and by enjoining the violation of a negative contract a court of ' Thurman v. Burt, 68 111. 139. CHAP. XVn.] OONTKACTS. 417 equity in effect decrees its specific performance, i Thus, in the case of an author who has contracted to write for a puhlisher and covenanted that he will not write for any other during the continuance of his agreement, an injunction will be allowed to restrain another publisher from employing him, thus in effect enforcing the performance of the contract. ^ So an author who has sold a work with an express stipulation that he will do nothing to interfere with its publication, may be enjoined from publishing another work upon the same subject, whose publication would hinder and impede the sale of the first. 3 § 714. Courts of equity are frequently called upon to prevent by injunction the violation of negative covenants annexed to leases, and thus indirectly to enforce specific performance of the contract for the benefit of the lessor. Thus, where premises are leased under an express covenant on the part of the tenant that he will not convert meadow land, an injunction will be allowed to prevent him from breaking up meadow land for the purpose of building, the relief being granted expressly because of violation of covenant, and not upon the ground of waste.* And where a lessee is by the terms of his lease restricted to a particular use of the demised premises, equity will restrain him from any other use of them, even though no irreparable injury be shown to result from 6u,ch breach of covenant. The interference in such case is based upon the ground that, while there is a remedy at law for breach of the covenant on the part of the lessee, a new suit would have to be brought daily for each daily repetition of the offense, and an injunction is therefore necessary 'to prevent a multiplicity of suits, as well as on the ground of the great difficulty in estimating damages at law for such a grievance.^ ' Lumley v. Wagner, 1 De Gex, M. & G. 615 •, Stiff v. Cassell, 3 Jur. N. 8. 348. ' Stiff c. Cassell, 3 Jur. N. 8. 348. » Barfield v. Nicholson, 2 Sim. & St. 1. * De Wilton d. Saxon, 6 Ves. 106. ' Steward «. Winters, 4 Sandf. Cli. 587. This was a bill by a lessor to restrain his lessee from using the premises demised as an auction store, 27 418 INJU^'OTIONS. [chap. XVII. § 716. Where premises are leased under an express covenant not to carry on a business that will interfere with the lease containing a covenant that the store should be " occupied by the regular dry goods jobbing business, and for no other kind of business." A motion to dissolve the injunction was denied, Saudford, Vice Chan- cellor, observing as follows : * * * " It is said that the remedy at law for damages is adequate, and that, so far from there being an irreparable injury by the continuance of the breach of this covenant, it is shown that there can be no injury at all. I apprehend that we are not to regard this subject in the manner indicated by the latter proposition. The owner of land, selling or leasing it, may insist upon just such covenants as he pleases touching the use and mode of enjoyment of the land ; and he is not to be defeated when the covenant is broken, by the opinion of any number of persons, that the breach occasions him no substantial injury. He has a right to define the injury for himself, and the party contracting with him must abide by the definition. In the case of the bakery in 1 Vesey & Beames, hereafter cited, I have no doubt a great many witnesses might have been found who would have testified that the bakery was not an annoyance to them, or to any but over-sensitive persons. And in Hills v. Miller, 3 Paige, 254, the injury to the complainant, if tested by the opinions of witnesses, would scarcely have resulted in even nominal damages, in an action at law. It is not necessary that the act complained of should amount to a nuisance in law, either public or private. Nor is the court to enter into a comparison, and permit a tenant to carry on some trades as less offensive than others, where the covenant prohibits the former. (Per Lord Eldon, in Macher v. The Foundling Hospital, 1 Ves. & B. 188.) So far as the injury is concerned, it is therefore unnecessary for the complainant to establish that it will be irreparable ; or on a continuing covenant, that it will be substantially injurious. The question remains is there an adequate remedy at law? In the first place, it is mani- fest that at law a new cause of action will arise every day that the defendants sell at auction. If the lessor avail himself of his full rights at law, he will sue daily for damages. This would lead to a multiplicity of .suits, harrassing to both parties; and highly obnoxious to the censure of a court of equity. Then if the suits were brought, how is it possible to estimate the actual damages ? A jury might enter into a wide field of conjecture, without any certainty of coming out of it at the point of justice to the parties. The jurors might infer that the continuance of an auction business in the demised premises would for years diminish the rent of the adjoining property, and render the premises less desirable to good tenants. But any estimate of damages on that basis, however well founded, would be wholly conjectural. A diflferent jury might imagine that the conducting of an auction business would enhance the value of the adjoining premises, and refuse to give any damages. And witnesses could undoubtedly be produced whose opinions would sanction a finding in either of these modes. I think that in a case were the parties, by an CHAP. XVn.j OONTEAOrS. 419 tliat of lessors upon their adjoining premises, upon pain of a forfeiture of the lease and payment of a penalty, defendants may be restrained from violating the covenant by carrying on the business, the relief being regarded as analogous to that by specific performance, and the jurisdiction being exercised upon the ground that the breach of the agreement would be a constantly recurring grievance. ^ But if defendants have been allowed to continue their acts for a long period of years, without objection, complainants are estopped from relief in equity, and must seek a remedy at law.* It is held, however, that in such case no pretense of title acquired by long con- express stipulation, have themselves determined that a particular trade or business conducted by the one will be injurious or offensive to the other, and there is a continuing breach of the stipulation by the one, which this court can perceive may be highly detrimental to the other, although on the facts presented it is not clear that there is a serious injury, and it is manifest that the extent of the injury is difficult to be ascertained or measured in damages, it is the duty of the court, by injunction, to restrain • further infractions of the covenant, thereby preventing a multiplicity of petty suits at law, and at the same time protecting the rights of the complainant." ' Barret s. Blagrave, 5 Ves. 555. ' Same v. Same, 6 Ves. 104. In the latter case the right to the injunction was based upon the claim by complainants that the business carried on by defendants came within the terms of the covenant. It appeared, however, that it had been carried on without interruption for more than ten years. Eldon, Lord Chancellor, said: "May not a very different question be made ; whether if you have permitted this to go on for eleven years, you must not take your chance at law ? I have not the least doubt that what is stated in the affidavits is within the terms of the covenant ; but the question is, whether you can have a specific performance under such circumstances, the parties having from the execution of the lease, eleven years ago, permitted that covenant to stand an ineffective part of the lease. I rather doubt whether, so far from the court's interfering at your instance, a bill might not be filed to prevent your suing at law upon that covenant. If there are equitable circumstances to prevent your taking your legal remedy, surely they will prevent your having a specific performance." And the injunction was accordingly dissolved. But see, contra, Society etc. v. Low, 3 0. E. Green, 19, where it is held that the covenant is a continuing covenant, running with the land, and its violation being of constant recurrence, the lessor's right to relief is not forfeited by long delay in making his application. 420 DTJUNcnoHB. [chap. xvir. tinned enjoyment on the part of tlie lessee can avail Mm, if such enjoyment be adverse to the covenants of his lease, i § 716. Upon similar principles the lessee of a mine, who" has covenanted by the terms of his lease not to remove certain machinery from the mine, may be enjoined from violating his agreement. 2 And where the lessee has agreed not to carry on any trade or business upon the premises leased, an injunction will be allowed to prevent him from using the premises for school purposes. 8 IToristhe jurisdiction confined merely to restraining the original tenant from breach of covenant, but it may properly be exercised against a sub-lessee who has cov- enanted not to carry on a particular trade on the premises demised, even though such covenant appears only in the assignment of the lease and not in the original instrument.'* And a covenant in a lease that a house shall be used only for the purposes of a dwelling house, is held to be a covenant running with the land, and though the assignees of the lease are not mentioned in the covenant, an injunction will be granted to prevent a breach by an assignee of the lease and . his sub-tenant. 5 § T17. In the exercise of its jurisdiction by injunction to restrain the violation of contracts, equity looks only to the terms of the contract itself, and is not governed by considera- tions of the relative convenience and inconvenience to the parties likely to result from granting or withholding the relief. And if the contract right is clearly established and the violation is apparent, the agreement being of such a. nature as to be capable of specific enforcement, an injunction may be granted regardless of the inconvenience to defendants.' Nor will it avail against the granting of the writ that the act complained of will be productive of no injury to the com ' Society etc. v. Low, 3 0. E. Green, 19. « Hamilton «. Dunsford, 6 Irish Cli. 413. ■ Kemp V. Sober, 1 Sim. N. S. 530. " Clements «. Welles, 1 L. B. Eq. 300. " Wilkinson «. Eogers, 13 W. R. 384. • Tipping V. Eckersley, 3 Kay & J. 264; Johnstone e. Hall, lb. 423; Blorer v. Great Western etc., 2 T. & C. C. C. 48. daAP. XVn.] OOKTRACTB. 421 plainant, and may even be beneficial to him, since it is for him to say whether the agreement shall be preserved, or whether he shall permit it to be violated. And the fact of the viola- tion of the contract being established, the court may interfere without requiring proof of actual damage. ^ Nor will it avail defendant that the work undertaken in violation of the agreement is one of great public importance, or that great inconvenience is likely to result to the public in case he is compelled to perform his agreement. ^ § 718. The rule as laid down in the preceding section, is to be accepted with the qualification that considerations of the relative convenience and inconvenience to the parties are rejected only when the covenants themselves are clear and free from doubt, and their violation is clearly established, and where irreparable injury is likely to result unless the breach is restrained. But if these conditions do not co-exist the question to be determined is one of comparative injury, and the court will be governed by considerations of the relative inconvenience likely to result to the parties from granting or refusing the relief.^ And upon an application for an interlo- cutory injunction to restrain a breach of covenant, if the question is involved in doubt, the burden rests upon the party complaining to show that the balance of convenience is in favor of granting the injunction.* But the relief will not be withheld merely because the agreement contains other cove- nants which are likely to be broken in the future. ^ § 719. To warrant the interference of equity against breaches of covenants limiting the use of demised premises, it is not requisite that the act complained of should amount to a nuisance in law,^either public or private. ' And permit- ' Dickenson ■». Grand Junction etc., 15 Beav. 270. And see Ingram v. Morecraft, 33 Beav. 49. And see Steward ®. Winters, 4 Sandf. Ch. 587. ' Lloyd 1). London etc., 2 DeGex, J. & S. 568 ; Baphael v. Thames etc., 2 L. R. Ch. Ap. 147 ; Foster «. Birmingham etc., 2 "W. R. 378. » Wilkinson v. Rogers, 12 W. R. 284. * Child V. Douglas, 5 DeGex, M. & G. 739. " Rigby V. Great Western etc., 15 L. J. Ch. 271. ' Steward v. Winters, 4 Sandf. Ch. 587. And see Macher v. Foundling Hospital, infra. 422 iNjTJNcnoNS. [chap, xrn ting one trade to be carried on witlaout objection will not raise an inference tbat the lessee may afterwards carry on another, nor will the court in such case enter into a comparison as to which of several trades is more offensive than others. ^ And where a lessee covenants against using the premises as a shop or warehouse for any trade, without a written license, or per- mitting anything which might grow to the damage and incon- venience of lessors, or any of their other tenants, a court of equity will not grant an injunction against entering judgment and issuing execution in ejectment for breaches of the covenants. 2 § 720. Certainty is an essential element in the contract whose enforcement is sought by injunction, and where a cove- nant is indefinite and uncertain in its provisions, no injunction will be allowed. 3 So, too, it is usually requisite that the party aggrieved should show some appreciable damage as the result of the breach of covenant which he seeks to restrain. Ajid a grantee with covenants of quiet enjoyment, will not be allowed an injunction to prevent his grantor from raising the level of a stream running through the premises of the grantor and past those of the grantee, where no damages result from the act which are susceptible of appreciation, and there being no covenant against doing that particular act.* It is not, how- ever, requisite that the breach of covenant against which preventive relief is sought in equity should have been actually committed at the time of making the application, and it is a sufiieient ground of interference that defendant insists upon his right to do the act in question." But equity wiU not assume that defendant intends to violate his covenant and will not interpose unless it is manifest that a breach is intended.' § 721. While a covenant in an instrument may, if ambig- uous, be controlled by the recitals in the same instrument,' ' Macher v. Foundling Hospital, 1 Ves. & B. 188. "Id. ' Low «. Innes, 10 Jur. N. S. 1037. * Ingram «. Morecraft, 33 Beav. 49. ' Tipping V. Bckersley, 3 Kay & J. 364. 6 Foster ®. Birmingham etc., 2 W. E. 378. ' Selby V Crystal Palace etc., 30 Beav. 606. OHAP. XVir.J CX3NTE ACT'S. 423 yet if it contains an absolute covenant not to do a particular act, such covenant will not, in the absence of any proceedings to rectify the agreement, be controlled by a recital from which it appears that the parties intended that the act might be done upon payment of a fixed sum by way of liquidated dam- ages, and an interlocutory injunction will issue to restrain the breach of the covenant. ^ But the fact that a right of re-entry is reserved to a lessor in the event of a breach of covenant, does not preclude him from obtaining relief in equity against the commission of the breach, since he is not bound to adopt the remedy of re-entry provided in the lease, but may seek relief in an equitable forum. ^ § 722. In all cases where a fixed sum of money is men- tioned in the instrument as payable upon a breach of cove- nant, the question for determination is whether the sum named was intended as a penalty to secure the faithftil per- formance of the covenants, or whether it was designed as an equivalent to be paid for the privilege of doing the act forbid- den. And where the covenant is absolute in its terms, and the specified sum has been inserted as a penalty to insure the faithful performance of the obligations thereby imposed, the paymen,t of the penalty will not deprive equity of its jurisdic- tion to restrain the commission of the forbidden act.* Upon the other hand, if it is manifest that the parties intended that the particular act might be done upon payment of the sum specified, the power to do the act upon payment of the money enters into and forms a part of the contract, and equity will neither interfere to prevent the doing of the act, nor to grant relief from the payment of the money agreed upon as an equivalent.* As illustrating this distinction, it is held that where a lessee of lands covenants not to burn over any portion of the premises demised, under the penalty of a ' Bird «. Lake, 1 Hem. & M. 111. « Parker ®. Whyte, 33 L. J. Cli. 520. ' Bird v. Lake, 1 Hem. & M. Ill ; Hardy ®. Martin, 1 Cox, 26 ; Howard V. Hopkyns, 2 Atk. 371; Fox v. Scard, 33 Beav. 337; Sloman v. Walter, 1 Bro. C. C. 418; French d. Macale, 3 Dr. & War. 269. * Ranger i>. Great Western etc., 5 H. L. 94; Street v. Rlgby, 6 Ves. 818; Sainter «. Ferguson, 1 Mac. & G. 389; Coles «. Sims, 5 DeGex, M. & G. 1. 424 INJUNCTIONS. [chap. xvu. certain fixed sum per acre, to be recovered as additional rent for every acre burned, he is not entitled to burn over the ground upon payment of the amount specified as liquidated damages, and the penalty does not deprive a court of equity of its jurisdiction to restrain the act.i But where the lessee covenants not to plow up pasture lands, or, if he does, that he will pay a certain sum for every acre plowed, an injunction will not be granted to restrain him from plowing, the relief being refused upon the ground that the parties have them- selves fixed the damages and agreed upon the price to be paid for doing the act.^ § 723. It is to be observed, however, that' the use of the terms "penalty" and "unliquidated damages" in the instru- ment, is not necessarily conclusive as to the interpretation which shall be put upon it, and the sum so reserved may be held to be liquidated damages, although called a penalty in the covenant, and vice versa. ^ But where the covenant is in its nature a continuing one, and the sum specified as payable iipon the breach is to be recovered in the reserved rent, it is regarded in eqtiity as a penalty and not as liquidated dam- ages.* Especially will the sum be construed in the nature of a penalty wKere, in addition to the increased rent, it. is also provided that the doing of the act forbidden shall work a for- feiture of the interest of the covenantor. ^ But the fact that the sum specified in the lease as payable upon the breach of the covenants, may be largely in excess of the real damage, will not of itself render th6 sum so reserved a penalty, since it will be construed as an increased rent fixed by the parties to be paid during the remainder of the term.' § 724. The question of whether relief by injunction shall be granted against a breach of covenant, is sometimes deter- ' French v. Macale, 2 Dr. & War. 269. » Woodward v. Gyles, 2 Vern. 119 ; Rolfe v. Patterson, 3 Bro. P. C. 436. = Gerrard v. O'Reilly, 3 Dr. & War. 414; Bird v. Lake, 1 Hem. & M. Ill; Coles ®. Sims, 5 DeQex, M. & G. 1. * French v. Macale, 2 Dr. & War. 269. ' French v. Macale, 2 Dr. & War. 269. ' Woodward v. Gyles, 2 Vern. 119. CHAP. XVn.] COHTEACIS. 425 mined by the relation which the party aggrieved sustains to the premises, as whether he is actually in possession, with a right to the present enjoyment of the property, or whether his interest is that of a remainder-man or reversioner. And while the party seeking specific performance of a covenant, if actually in possession, is entitled to the protection of equity in the enjoyment of the property according to his covenant, yet if he be entitled only in remainder or reversion, some special damage by reason of the breach must be shown before a court of equity will interfere, i Tims, where premises are demised upon condition that they shall be used only for dwelling pur- poses, and that no trade or business of any nature shall be carried on upon the premises, the remainder-man, Avho files a bill for relief against a breach of the covenant, the tenant for life refusing to interfere, will not be allowed an injunction where he fails to show some special and material damage as the result of the infraction. ^ Though if the lessee were carrying on a grossly noxious or oifensive trade, it would seem that relief might be allowed the remainder-man. ^ § 725. One who has covenanted not to lease any house for hotel purposes, and not to lease any land within certain limits for the erection of a hotel, may be restrained from selling any land for such purpose, and from doing any act tending to the breach of his covenant.* Nor is it necessary that the covenant whose enforcement is sought should run with the land so as to be binding in law upon purchasers, since equity may restrain purchasers with notice of the covenant from doing any act in violation of its terms. Thus, where one conveys a garden in fee, the grantee covenanting for himself and assigns that no buildings shall be erected upon the garden, a purchaser from the grantee with notice of such covenant will be restrained from violating it, regardless of whether he is bound by its terms at law. ^ And where land vested in trustees is sold in ' Johnstone •». Hall, 3 Kay & J. 414 'Id. Md. ^ Jay V. Richardson, 30 Beav. 563. °Tulk V. Moxhay, 11 Beav. 571, 3 Ph. 774 "The question," observes Lord Cottenham, "is not whether the covenant runs with the land, but 426 Df JUNCTIONS. [chap. xvn. building lots, the conveyances containing certain restrictive covenants, it is held that each purchaser has an equity against the others to compel the faithful observance of the conditions, i § 726. The lessor may by his own conduct deprive himself of the right to equitable interference for the prevention of a breach of covenants contained in the lease. For example, where all the leases of an estate contain covenants that the tenants will build only in accordance with a prescribed plan, for the purpose of securing uniformity, the landlord having permitted some of his tenants to build upon their premises in violation of these covenants, will not be allowed to restrain other tenants from building in the same manner, though they may have had no license or permission so to do.^ More espe- cially wiU the relief be refused where the landlord has been negligent in the assertion of his rights.^ And where a con- tract between lessor and lessee is in its nature so harsh and oppressive upon the lessee that equity ought not to give it efiFect, an injunction to prevent its violation will be refused.* § 727. The aid of equity is frequently invoked to prevent the breach of covenants contained in conveyances of real estate. And it may be asserted as a general rule, that covenants pro- hibiting the purchaser from the erection of dwellings, or restricting him in the size or manner of erections, or the pur- poses for which the premises will be used, will be enforced in equity by restraining the purchaser, or his assigns with notice, from their violation.^ Thus, where one sells a lot adjoiniig his own premises, with a provision in the deed restricting the purchaser as to the size of the erections to be placed upon the premises, such a condition is regarded as for the benelit of the whether a party shall he permitted to use the land in a manner inconsis- tent with the contract entered into by his vendor, and with notice of which he purchased." ' Eastwood i>. Lever, 33 L. J. Oh. 357. ' Roper V. Williams, 1 Tur. & Russ. 18. 3 Id. ' Talhot V. Pord, 13 Sim. 173. ' Seymour v. McDonald, 4 Sandf. Ch. 502; Clark v. Martin, 49 Pa. St ^89; Hills i). Miller, 3 Paige, 254; Trustees etc. ■». Cowen, 4 Paige, 510; Mann v. Stephens, 15 Sim. 377. CHAP, xrn.] ooNTEAcis. 427 vendor, and subsequent purcliasers of the property may be enjoined from' violating the covenant. ^ But, wbile equity may properly restrain parties from erecting buildings higher than they are authorized to do by their act of incorporation, or by the terms of a contract, a small excess in height above that authorized will not constitute ground for an interlocutory injunction to prevent the use of the biiilding after it has been erected, no irreparable injury being shown from such excess.^ § 728. The right to relief in cases of this nature is not limited to the original purchaser upon whom the conditions are imposed, but extends to his assigns who ptirchase with knowledge of the original covenants. And where real estate is sold with covenants that no building shall be erected thereon, and it passes through the hands of successive purchasers, the final owner in fee, with notice of such covenants, may be restrained from violating them by the erection of buildings.-'' So, too, the jurisdiction may be exercised to prevent the breach of negative covenants on the part of the vendor of real estate. Thus, where the vendor has covenanted in the conveyance not to erect or to permit the erection of any buildings on his prem- ises in front of those conveyed, the erection of buildings in violation of the terms of the agreement will be enjoined.* § 729. Where adjoining lots in the same block are from time to time sold to different purchasers, the conveyances of the lots containing mutual covenants between the grantor and the respective grantees against the erection of any noxious or offensive structure on the premises, and against carrying on any trade or business whatsoever which might be in anywise offensive to the neighboring inhabitants, the covenants in the deeds are regarded in equity as for the mutual benefit and protection of all the purchasers. And although a prior pur- chaser in such case might have no right of action at law upon a covenant in a deed to a subsequent purchaser, he is entitled ' Clark «. Martin, 49 Pa. St. 289. " Warden etc. v. South Eastern etc., 9 Hare, 489. " Mann v. Stephens, 15 Sim. 377. And see Seymour v. McDonald, 4 Sandf. Oh. 503. ' Hills V. Miller, 3 Paige, 254 ; Trustees etc. v. Cowen, 4 Paige, 510. 428 INJTOTCTIONS. [chap. XVH. to the aid of equity by injunction to restrain the carrying on of any noxious or offensive business, such as a coal yard, upon the lot of such subsequent purchaser. And upon demurrer to the bill, its allegations as to the noxious effects of the coal dust upon adjoining residents, though highly wrought and expressed in ornate and poetical language, will not be regarded as a fiction, and the demurrer will be overruled. ^ § 730. If, however, complainant has stood idly by and permitted the erection complained of to be made and expenses to be incurred therein, without objecting, his application for the aid of a court of equity comes too late and will not be entertained. Thus, where purchasers of real estate have bought upon condition that they are to use the land for a specific purpose and none other, they will not be restrained ' Barrow «. Rioliard, 8 Paige, 351. "There can be no doubt," observes Walworth, Chancellor, " if the allegations in the bill are true, that the use of lots No. 12 and 13 as a coal yard is a clear violation of the covenants of the grantees of those lots. The language of the covenant shows that sev- eral other uses of the lots, far less offensive than this, are in terms prohib- ited on the ground that they would probably be offensive to the neighbor- hood. The allegation in the bill on this subject, though it is a little poetical, can not be considered a mere poetic fiction, as it is sworn to by the complainant and is admitted by the demurrer. He there states that large quantities of volatile and offensive dust and smut from the coal, rise in the air, and are diffused by the wind, into the premises of the neighbor, ing inhabitants. And in spite of all their care, such coal dust and smut not only settles upon their walks and their grassplats, but also on their fragrant plants and flowers, ' beclouding the brightness and beauty which a beneficent Creator has given to make them pleasant to the eye, and cheering to the heart of man.' But what must be still more offensive to the ladies of the neighborhood, 'this filthy coal dust settles upon their door steps, thresholds, and windows, and enters into their dwellings, and into their carpets, their cups, their kneading troughs, their beds, their bosoms, and their lungs ; discoloring their linen and their otherwise stain- less raiment and robes of beauty and comfort, defacing their furniture, and blackening, besmearing and injuring every object of utility, of beauty, and of taste.' Making all due allowance for the coloring which the pleader has given to this naturally dcurk picture, it is perfectly certain that this keeping of a coal yard upon any of these lots is a business offensive to the neigh- boring inhabitants, according to the spirit and intent of these restrictive covenants. The vice chancellor was therefore right in overruling the demurrer. And the order appealed from is aflarmed with costs." OnAP. XVn.J C0NTEACT8. 429 from using it for other purposes where complainant has permitted them to go on without objection and to incur large expense in the work proposed, no sufficient excuse being shown for the delay in iuToMng the aid of equity. ^ § 731. Where an agreement is of such a nature that it is practically impossible for a court to enforce it, and the bill for an injunction is in eflfeet a bill for specific performance, equity will not interfere. Thus, where the lessee of an inn has covenanted to keep it open as an inn during the period of his lease, and not to do any act whereby the license might become forfeited, an injunction will not be allowed to restrain him from discontinuing to use and keep open the premises as an inn, since this would in effect be a mandatory injunction directing him to carry on the business of an inn keeper. ^ And in such case, it not appearing that the lessee threatens or intends any act whereby the license might become forfeited, an interlocutory injunction, granted upon filing the bill, should be dissolved. 3' So where defendant had contracted to take notes of cases heard and determined in court and to publish them in the form of law reports for complainant, but had failed to comply with his agreement, an injunction was refused to prevent him from making reports for persons other than the complainant.* And where complainant had entered into an agreement with a railway company to conduct its road and to keep the rolling stock in repair, the court refused to enjoin the company from employing any other person than com- plainant to do the work contracted, upon the ground that it was impossible from the nature of the agreement to enforce it specifically by compelling defendant to emplo/ complainant.^ § 732. The rule as here laid down applies generally to contracts for personal service, where from the nature of the case it is impossible to compel the contracting party to render the services. Thus, in the case of contracts for theatrical and ' Water Lot Company «. Bucks, 5 Geo. 315. ' Hooper v. Brodrick, 11 Sim. 47. •Id. * Clarke «. Price, 2 Wilson Ch. C. 157. ' Johnson v. Shrewsbury etc., 3 De Gex, M. & G. 914. 430 iNjTiNcrnoHS. [chap. xvn. operatic performances, a court of equity, having no power to compel the performance of the acts required, will not usually interfere by injunction. ^ And where complainant had agreed to sing in concerts and operas, and not to make other engage- ments during the period of the contract, an injunction was refused to prevent the contractor from making other engagements.^ In all such cases the proper remedy is by proceedings at law for the violation of the contract. ^ Pending an action at law by a theatrical manager for damages resulting from the violation of a contract to play at plaintiff's theater for a given length of time, defendants will not be enjoined from playing elsewhere, nor will another manager be enjoined from contracting for their services.* Even were such a case a fit one for the exercise of the jurisdiction of equity, plaintiff having elected to proceed in a legal forum should abide by his decision. Nor will a manager be allowed an injunction to prevent an actor from playing at another theater, when by the terms of his contract he is not restricted from so doing. ^ § 733. The authorities are somewhat conflicting as to whether, in cases of contracts containing both aflarmative and negative stipulations, a court of equity may lend its aid bj injunction to prevent a breach of the negative stipulation when the affirmative is of such a nature that it can not be specifically enforced by a judicial decree. "While it has beer contended, with much show of reason, that the negative part of the agreement might be enforced by injunction, though the affirmative part could not be specifically enforced by decree, as where defendant has contracted to sing at complainant's ' Sanquirico v. Benedetti, 1 Barb. 315 ; Burton «. Marshall, a Gill, 487. And see Kemble ■». Kean, 6 Sim. 333. ^ Sanquirioo ». Benedetti, 1 Barb. 315. = Id. * Burton v. Marshall, 4 Gill, 487. ' Caldwell «. Cline, 8 Mart. N. S. 684. But see Webstet o. Dillon, 3 Jur. N. S. 433, where an actor bad contracted to play at a particular theater, without contracting that he would not play elsewhere, and an injunction was allowed to prevent him from acting at any other than plaintiff's theater on the nights when he had contracted to play there. CHAP. XVn.] CONTEACTIS. 431 theater and not at any other, i yet the clear weight of authority seems to support a contrary doctrine, and to deny relief in equity against a violation of the negative stipulation when the court is unable to enforce the affirmative one.^ Thus, where an actor has agreed and covenanted with the proprietors of a theater that he will act for them during a certain period, and will not act elsewhere, since a court of equity can not enforce the positive part of the contract, it will not interfere by injunction to restrain a breach of the negative part.* 'Lumley o. Wagner, 1 De Gex, M. & G. 604. Lord St. Leonards, Chan- cellor, after reviewing the authorities, says : " The present is a mixed case, consisting not of two correlative acts to be done, one by the plaintiff and the other by the defendant, * * butof an act to be done by the defendant alone, to which is superadded a negative stipulation on her part to abstain from the commission of any act which will break in upon her affirmative covenant, the onebeing ancillary to, concurrent and operating together with the other. The agreement to sing for the plaintiff during three months at his theater, and during that time not to sing for anybody else, is not a correlative contract; it is in effect one contract. * * The engagement to perform for three months at one theater must necessarily exclude the right to perform at the same time at another theater." ' Sanquirico ®. Benedetti, 1 Barb. 315; Hills v. CroU, 3 Ph. 60; Kemble V. Kean, 6 Sim. 333 ; Kimberley v. Jennings, lb. 340. ' Kemble v. Kean, 6 Sim. 333. Chadwell, Vice Chancellor, after stating that the bill was in effect to procure a specific performance of the contract requiring defendant to act at complainant's theater, observes as follows : "In the first place, independently of the difficulty of compelling a man to act, there is no time stated ; and it is not stated in what characters he shall act; and the thing is, altogether, so loose that it is perfectly impossible for the court to determine upon what scheme of things Mr. Kean shall perform his agreement. There can be no prospective declara- tion or direction of the court as to the performance of the agreement ; and, supposing Mr. Kean should resist, how is such an agreement to be performed by the court? Sequestration is out of the question; and can it be said that a man can be compelled to perform an agreement to act at a theater by this court sending him to the Fleet for refusing to act at all ? There is no method of arriving at that which is the substance of the contract between the parties, by means of any process which this court is enabled to issue ; and therefore (unless there is some positive authority to the contrary) my opinion is that, where the agreement is mainly and substantially of an active nature, and is so undetermined that it is impossible to have performance of it in this court, and it is only guarded by , a negative provision, this court will leave the parties, altogether, to a court of law, and will not give partial relief by enforcing only a negative stipulation." 433 iNJiiNCTiONS. [chap. xm. § 734. A distinction, however, has heen taken between cases where, as in those just considered, the injunction is merely ancillary to the principal relief sought, which is a specific performance of the affirmative portion of the contract, and where the real and only object of the bill is to prevent a breach of the negative stipulation. Thus, where it is con- tracted with complainant that one of two persons shall not carry on the business of a tailor within a certain locality, the remaining portion of the contract being that the other of the two persons shall be employed by complainant in his business so long as it shall be carried on, upon a bill seeking only to restrain the breach of the negative stipulation, an injunction may be allowed, i In such case the negative agree- ment is entirely distinct and separable from the affirmative, there being in efiect two distinct contracts, and relief is sought only against a violation of the negative stipulation. § 735. Where the contract, to restrain the violation of which an injunction is sought, is purely a negative contract, unconnected with any affirmative stipulations, relief may be properly granted, especially where the agreement is between partners, and is for the benefit of the partnership business. Thus, where one of several partners in a theater, covenants with the other partners that he will not write plays for any other theater, but does not agree to write for the theater belonging to the firm, he may be enjoined from violating such agreement. 2 And it is held that the jurisdiction, to restrain the breach of a negative agreement, or a promise to abstain from doing a particular thing, is not limited to cases where the court has jurisdiction over the acts of complainant. ^ 'Sot is it material whether the right sought to be protected is ait law, or under an agreement which can not otherwise be brought vidthin the jurisdiction of equity, provided the bill states a right in the person complaining to the performance of the negative agreement of the defendant.* ' Rolfe v. Rolfe, 15 Sim. 88. ' Morris ». Oolman, 18 Ves. 437. • Dietrichsen v. Cabburn, 3 Ph. 62. CHAP, xvn.] (XJHTEAore. 4:33 rV. CoNTEAors m Eesteaint of Thabe. § 736. General rule. 737. Grounds of the jurisdiction. 738. Covenants against practicing as an attorney. 739. Court will not imply covenant. 740. Special cases. 741. Governing principle. 742. Belief granted where contract is not satisfied by payment of liqui- dated damages. 743. Injunction withheld in cases of doubt. 744. Covenant against publications ; jurisdiction not confined to origi- nal parties. 745. Legal and equitable relief not granted at the same time. 736. Courts of equity are frequently called upon to aid in the enforcement of contracts restricting one in the exercise of Ms trade or profession within a specified locality, or a given period of time. While covenants in restraint of trade gene- rally are absolutely void, both at law and in equity, because con- trary to pubKc policy, yet where the restraint is only partial, being limited as to the conditions of time or space, and reasonable ground exists for such restriction and it is founded upon good consideration, the contract will generally be enforced in equity by restraining its violation. ^ § 737. The jurisdiction in cases of this nature is based upon the ground that the parties can not be placed m statu quo, and that damages at law can afford no adequate compen- sation, the injury being a continuous one and irreparable by the ordinary process of courts of law. In conformity with these principles it has been held that contracts between physi- cians, whereby one is restricted from the exercise of his pro- fession within a prescribed area, upon sufficient consideration, as for example a sale of the good will of the business, will be ' Butler v. Burleson, 16 Vt. 176; McClurg's Appeal, 58 Pa. St. 51; Whit- taker v. Howe, 3 Beav. 383 ; Morris v. Colman, 18 Ves. 437 ; Rolfe v. Kolfe, 15 Sim. 88; NichoUs v. Stretton, 7 Beav. 42. 28 434: iNJUNcrrioNS. [chap. xra. enforced by enjoining any attempt at the exercise of the profession within the locality specified. ^ § 738. Upon similar principles, where an attorney an^ solicitor, on selling his business to a new firm, covenants foj a valuable consideration not to practice within a period of twenty years in any part of the country, and not to induce any of the clients of the old firm to withhold their business from the new, he will be enjoined from violating the agree- ment. ^ And where defendant, on being articled as a clerk to complainant, who was an attorney at law, covenanted that he would not interfere with complainant's clients, or act for them in the capacity of attorney, he was restrained from a breach of his covenant.^ " McClurg's Appeal, 58 Pa. St. 51 ; Butler v. Burleson, 16 Vt. 176. In tlie latter case, the following observations of the court very clearly illustrate the grounds upon which the interference is based: "When there is an express covenant, and an uncontroverted mischief arising from the breach of it, equity will grant an injunction to restrain the breach. In this case there is an express contract. The mischief arising from the breach of it can not be repaired, nor can it well be estimated. A suit at law would afford no adequate remedy, and the damages will be continuing and accru- ing from day to day, and fui'thermore the object of the contract can only be obtained by the parties conforming expressly and exactly to its terms." Injunction sustained. ' Whittaker v. Howe, 3 Beav. 383. • NichoUs «. Stretton, 7 Beav. 43. This was a case where defendant, on being articled as a clerk to complainant, an attorney, covenanted that he would not in any way interfere with or be concerned as attorney, or otherwise, for any of complainant's clients or correspondents, upon pain of forfeiting the sum of one hundred pounds for every breach of the cove- nant. The defendant, having acted as attorney for certain parties who had been clients of complainant, a bill was filed praying a perpetual injunc- tion against such intermeddling in violation of the terms of the agreement. Lord Langdale, Master of the Bolls, though conceding that the enforce- ment of the terms of a negative contract might possibly work injury to third parties in such a case, sustained the jurisdiction as follows: "In all cases of this kind, where an injunction is asked to restrain a party from exercising his professional employment, the court has always had some reluctance in acting, for not only is it, to some extent, a restriction on trade, but it may also have the eflfect of depriving third parties of the ser- vices of those in whom alone they may have confidence. The question has arisen not only in the case of solicitors, but in that of medical men. There was a case before Lord Eldon, of a medical man who had covenanted CHAP. XVn.j CJONTEACTS. 435 § 739. To warrant a court of equity in interfering by an injunction in sucli cases, there must be an actual contract, and the court will not imply a covenant on the part of one who sells the good will of a trade or business not to carry on the same trade in that locality. It follows, therefore, that where one has sold the good will of his trade, without any express covenant preventing him from resuming the trade in that vicinity, he will not be enjoined from so resuming it.^ It is not necessary, however, that the contract should be in writing to entitle it to the protection of equity; and where one has sold the lease of a house with the good will of the business connected therewith, and has agreed orally that he will not renew the business in that street, he may be enjoined from violating such oral agreement. ^ § 740. Where one sells his premises, together with the ■fixtures and good will of his business, and as part of the con- sideration for the purchase of the good will, he covenants not to carry on the business at a specified place, the purchaser agreeing to employ him, he may be enjoined from setting up business in violation of his covenant, even though he has been discharged from the purchaser's employ, and the evidence does not clearly show that he was properly dismissed. ^ So where a not to be employed for certain persona, and those persons being taken ill, it was a case of great bardsbip to say tbat he should not attend them. It must be admitted that this court can not interfere in these cases without the possibility of injury to third parties. That difBculty, however, has been passed over, and the court has repeatedly exercised its jurisdiction in cases of this nature. It is no answer to say, in this case, that the client would not have employed the plaintiflf in the particular case referred to. Aaj interference with his clients was one of the very things which the plaintiff, when he took the defendant into his office, was desirous of guard- ing against. I do not see any ground on which I can say that this is a contract which this court will not enforce. The perseverance of Stretton in acting in this manner and in availing himself of the introduction he accidentally acquired in the plaintiff's office, has made this application necessary. I must grant this injunction ; the only question is, as to the terms in which it should be expressed." ' Cruttwell V. Lye, 17 Ves. 335. ' Harrison v. Gardner, 2 Madd. 198. " Daggett v. Byman, 17 L. T. N. S. 486. 486 rNJCNonoKa [ohap. xvn. tailor, upon the sale of his business, good will and fixtures, covenants not to carry on or be interested or concerned in the same business within an area of five miles from the former location, he will be enjoined from working as a journeyman upon a salary, in the employ of a nephew of the same name and conducting the same business, within a quarter of a mile of the old location.! § 741. The governing principle in this class of cases seems to be, that, although contracts in restraint of trade are bad on grounds of public policy, unless they are natural and reasona- ble for the protection of the parties dealing with the subject matter of the contract, and although public policy requires that the citizen should not deprive himself or the state of his skill or talent, yet one who has a commodity to sell should be permitted to sell it most advantageously in the market, by precluding himself from entering into any competition with the purchaser. Thus, where the owner of letters patent for the manufacture of a valuable article of commerce, sells his patents to a company incorporated for carrying on the manu- facture of the article, and covenants not to carry on or allow to be carried on in any part of Europe any manufacture or sale of productions similar to those which were the subject of the patents, and not to communicate to any one the processes of the manufacture in such manner as to interfere with the exclusive enjoyment of the benefits purchased, the covenant is one capable of being enforced in equity, and its breach will be prevented by injunction. ^ ' Newling v. Dobell, 19 L. T. N. S. 408. = Leather Cloth. Company v. Lorsont, 39 L. J. N. S. Eq. 86. The princi- ples Tinderlying the jurisdiction of equity for the protection of contracts in restraint of trade, are clearly stated in this case hy James, Vice Chan- cellor, as follows : * * * * "The truth is that all the cases, when they come to be examined, according to my view of it, establish this prin- ciple, that all restraints upon trade are bad as being in violation of public policy, unless they are natural and not unreasonable for the protection of the parties dealing legally with some subject matter of contract, and that the principle is this : public policy requires that every man should be at Kberty to work for himself, and should not be at liberty to deprive him- self or the state of his labor, skill or talent by any contract that he enters into. On the other hand, public policy requires this: that where a man CDEtAP. XVH.] CONTRAOIS. 437 § 742. "WTiere the court is of opinion that the conditions of a bond, in restraint of trade in a particular locality, were nol has by skill or any other means ohtainecl something which he wants t(? sell he should he able to sell it in the most adrantageous way in the market, and in order to enable him to sell it advantageously in the market it is necessary that he should be able to preclude himself from entering into competition with the purchaser, that then the same public policy which enables him to do that, does not restrain him from alienating that which he wants to alienate, and therefore enables him to enter into any stipulation, however restrictive it is, provided that restriction in the judgment of the court is not unreasonable, having regard to the subject matter of the con- tract. Now in this case the subject matter of the contract was a particular manufacture carried on partly under patents and partly by processes which were known to the vendors, and it is to be assumed not known except to the vendors themselves and their agents and workmen. That being the subject matter of the contract, the stipulation is that the vendor will not set up a similar manufacture in Europe, and will not communicate the process of the manufacture anywhere so as to interfere with the exclusive enjoyment by the intended company of the benefits thereby agreed to be purchased. It seems to me that the case much more resembles, having regard to these facts, the sale of a secret (which has been held to be per- fectly good), and as connected with the sale of that secret an unlimited stipulation as to time or place as to communicating the secret or dealing with it so as to interfere with the purchaser, because in truth there were particular processes for the manufacture, those processes were to be com- municated, and they were to be communicated for the exclusive benefit of the purchaser. It is settled by authority that a man may bind himself not to communicate that process to anybody else,* that he should not commu- nicate that secret anywhere under any circumstances in any part of the world to anybody. But how would it be possible to enforce such a cove- nant as that not to communicate the process, if he were at the same time to be at liberty to carry on that same trade with the same processes in such a way that they would have to be communicated to every servant and workman engaged by him in the trade ? Therefore, the mere fact that he is entitled to restrain himself simply amounts to this ; it i3»not that he is restrained, but that he is entitled to restrain himself, from com- municating, and is therebj enabled to get a higher price for that which he is selling. The fact that he is so entitled to restrain himself from com- municating the process entitles him also to restrain himself from carrying on a manufacture which would involve the communication of the process. Therefore, independently of those words, ' so as in any way to interfere with the exclusive enjoyment,' I am of opinion that there is nothing in this covenant which violates the rules of law or which is in contravention of the decided cases, when the principles upon which these cases have been decided come to be properly considered. But if there were anything in the covenant so standing which might be supposed to be in contraven- 438 iNjtnNonoNS. [chap. xvn. intended to be satisfied by the payment of the sum named in tbe bond as liquidated damages, it may properly interfere to restrain a violation of the terms of the instrument. Thus, where the bond contains a recital that defendant, who has become the managing clerk for complainant, a solicitor, should enter into a bond not to practice as a solicitor within fifty tion of some of the decided cases, I am satisfied myself that those words, 'so as in any way to interfere with the exclusive enjoyment of the Com- pany,' do properly and sufficiently modify and qualify it; the principle being that you are not to have any more restraint than is necessary for the benefit of the company, and in order to obviate any objection you must not do it so as to interfere ; that is for the company to say ; we do not ask for any unreasonable restraint, for any capricious restraint upon you, we only ask you to tie yourself up not to do something which will interfere with that which you profess to sell to us, and for which you have received a consideration. Therefore, I am of opinion that the plaintiffs are right in saying that the covenant is one capable of being enforced in this court. Then the next question is, has the defendant, Lorsont, been doing any- thing which is in violation of that covenant? I am of opinion that he is doing so, that he is engaged in a manufactory for the manufacture of productions similar to those which were the subject of letters patent, and which were then manufactured in the manufactory so carried on at West Ham at the time of the contract, that is to say it was proved to me that the particular production is the production of an article known as Crockett's leather cloth, that Crockett's leather cloth was manufactured at West Ham at that time, that Crockett's leather cloth, called by that very name, is manufactured by the defendant and sold by him under that very name, with an advertisement from him to the eflFect that the goods supplied by him are in every respect similar to those made by the Crockett International Leather Cloth Company while the works were 'under my management,' and then he states his sixteen years experience and so on. That is to say, having covenanted that he would not be engaged in the manufacture of products similar to those which were then being made, he circiilates to the world a letter saying : ' I am now actually making pro- ductions which are in every respect similar "to those which were made by the vendors and afterwards made by the purchaser.' I am of opinion, therefore, that the plaintiffs are entitled to an injunction. The injunction, I think, ought to be in these words, the only evidence given before me being with regard to Crockett's leather cloth, ' To restrain the defendant from carrying on any manufactory for the production of Crockett's leather cloth, or being engaged in any company for the sale of Crockett's leather cloth, or any production similar thereto,' and from in any manner holding himself out as the manufacturer of such Crockett's leather cloth, or any production similar thereto.' That is the whole extent to which I purposa granting the injunction." CHAP. XVn.J CONTEAOTS. 439 miles of the same place, and that on violation of his agreemen-t he should pay a fixed sum as liquidated damages, the solicitor will be allowed an injunction to restrain the clerk from prac- ticing within the distance specified, in violation of his covenant. 1 § 743. A merchant who, upon selling his stock in trade and business, covenants not to carry on the same business at the same place, or within certain limits surrounding, and who thereupon gives up his place of business, will not be enjoined from afterward soliciting and procuring orders within the specified territory, the question of whether this constitutes a breach of the covenant being regarded as too doubtful to warrant an injunction without bringing an action. ^ And where one undertakes the management of the business of a chemist, covenanting against carrying on the same business in his own name and for his own benefit, or in the name and for the benefit of any other person, Avithin a certain radius, under a specified penalty secured by bond, and he afterward solicits orders for another chemist within the limits specified, the efiect of such conduct upon the covenant in question is regarded as too doubtful to warrant a preliminary injunction.^ So where one sells his business, agreeing not to carry it on in the same place, either in his own name or in the name of other persons, for a period of five years, and during this period he acts as manager for another person engaged in the same business and in the same place, the question is regarded as too doubtful to be dealt with on an application for an interlocutory injunc- tion.* And a covenant against engaging in a certain trade, or in any matter pertaining thereto, within a certain district, is ' Howard «. Woodward, 10 Jur. N. S. 112. « Turner v. Evans, 2 DeGex, M. & Q. 740. ' Caark «. "Watkins, 9 Jur. N. 8. 143. * Allen V. Taylor, 18 W. E. 888. And see same case upon final hearing, 23 L. T. N. S. 651. But where one agrees that he will not directly or indi- rectly, either alone or in partnership with, or with the assistance of any other person, set up or follow or practice a particular business, he is regarded as violating his covenant hy conducting the business in the capacity of assistant or manager to another person. Dales v. Weaber, 18 W. R. 993. 440 INJUNCTIONS. [chap. xvh. not regarded as violated by loaning money to one engaged in such business, the loan being secured by mortgage upon the business premises, even though the covenantor may know that the mortgagor's only means of repaying the money is out of the profits of the business. ^ § 744. A covenant on the part. of a publisher that he will not publish in future a particular magazine, is considered in the same light as a covenant by one selling a particular trade or business, that he will not again engage in that trade or business, and is not void as a general contract in restraint of trade. But the injunction, in such case, will be confined to restricting the publication of th'e particular magazine speci- fied.^ And it is to be observed that the jurisdiction in restraint of breaches of negative contracts is not confined to the contracting parties, but may be extended to third parties, with notice of the covenant. Thus, where an author assigns the copyright of a work published in his name, covenanting not to publish any work prejudicial to the sale of the first, a publisher who, with notice of such covenant, afterward pub- lishes a work ftom the same author, in the same name, and upon the same subject, will be enjoined, though the latter work may not be an actu.al piracy, and though it is published under a different title. ^ § 745. One who is aggrieved by the violation of a contract not to do a certain act under a certain penalty, will not be allowed both legal and equitable relief at the same time. And where a motion for an injunction to resti-ain the breach of such an agreement is ordered to stand over, with leave to complainant to proceed at law, and he recovers liquidated damages in the action at law, he will not be allowed an injunc- tion to restrain the further breach of the agreement.* Upon similar principles, where an action at law is instituted to recover a penalty as liquidated damages for the violation of a covenant made by a surgeon not to resume practice within a ' Bird -0. Lake, 1 Hem. & M. 338. " Ainswortli v. Bentley, 14 W. E. 630. " Barfield v. Nicholson, 2 L. J. Ch. 90. * Sainter v. Ferguson, 1 Mac. & Gr. 386. OHAP. XVn.] CONTRACTS. 441 certain district, an injunction will not at the same time be granted to prevent him from practicing in such district, i And if, after obtaining an injunction against the breach of an agreement, the party aggrieved brings an action at law for damages, the injunction may be dissolved on the application of defendant. 2 ' Games v. Nesbitt, 7 H. & N. 158; Mayall v. Higby, 1 H. & C. 148 " Fox B. Scard, 33 Beav. 327. 442 INJUNCTIONS. [chap. xvm. OHAPTEE XVIII. OF THE PAKTIES FOE AND AGAINST WHOM THE JURIS- DICTION IS EXERCISED. I. Op Pabties in Gbnbkai/. II. Generai Cokpoeations. III. MuSraCIPAl, COBPOSATIONS. rv. Public Oppiceks. v. Pabtnebs. VI. EXBCUTOBS AND AdMINISTHATOES. VII. Sdeeties. VIII. HUSBAHD AND WiPE. I. Of Paeties in General. § 746. General rule as to joinder of parties. 747. Writ not usually granted against party not before the court; ■when granted in name of the people. 748. Rule as to parties not before the court. 749. Parties to actions at law. 750. Officers of court not usually made defendants to bill for injunction against judgment. 751. Plaintiffs In judgment must be joined as defendants in injunctica bill. 753. Jurisdiction of United States courts. 753. Test applied in cases of easements of a public nature. 754. Dedication of land to public use. 755. Corporate authorities proper parties to enjoin public nuisance. 756. Test as to parties complainant. 757. Judgment against school district. 758. Injunctions against garnishees. 759. Churches and religious bodies. 760. Principal and agent. § 746. The general principles deducible from the authori- ties as to the joinder of parties complainant and defendant, in OHAP. XVm.] PAJETIES. 443 proceedings in courts of chancery, apply to the case of injunc- tion biEs, and by these principles the court is guided in determining whether proper parties have been brought before it, for or against whom relief by injunction is asked. It may be premised, generally, that the jurisdiction will be exercised only in behalf of parties interested in the transaction or subject matter of the proceedings which it is sought to enjoin, and that one who has no personal interest in the matter is not entitled to the relief, even though he may have been a party to the proceedings at law which he seeks to restrain, i IsTor will equity interpose by injunction for the protection of one who seeks relief indirectly through the equities of other parties, on which they themselves do not insist. ^ § 747. As a general rule, an injunction will not be allowed against a party not a defendant to the bill, or not properly brought before the court. ^ If, however, the court is in fall possession of a cause, it may, simply upon motion in the action, restrain parties from proceeding at law with respect to the same matter.* And a purchaser under a decree in equity may be enjoined from acting contrary to the decree, though not a party to the proceedings.^ Where the act which it is sought to enjoin is one which aifects the interests of the public at large, proceedings for an injunction are usually brought, both in England and in the United States, in the name of the people, or of the attorney general at the instance of a relator.' And in actions to enjoin the erection or continuance of public nuisances, this course is always pursued. '' ' Wynne «. Newborough, 1 Ves. Jr. 164 ; Hunter v. K[ockolds, 15 L. J. Ch. 330. " Roberts v. Bozon, 3 L. J. Ch. 113. ' Fellows 1). Fellows, 4 Jolins. Ch. 35; Schalk «. Schmidt, 1 McCart, 268; Iveson B. Harris, 7 Ves. 356 ; State of Kansas v. Anderson, 5 Kan. 90. * Harrison v. Gurney, 3 Jac. & W. 568 ; Wedderburn v. Wedderbum, S Beav. 308. ' Casamajor v. Strode, 1 Sim. & St. 881. ' Soltau ». DeHeld, 3 Sim. N. S. 150 ; Attorney General ®. Compton, 1 T. & C. C. C. 417 ; Attorney General v. Lea's Heirs, 8 Ired. Bq. 803 ; Same v. Perkins, 3 Dev. Bq. 88. ' People V. Vanderbilt, 38 N. Y. 896; Same v. Same, 38 Barb. 383; Attor. ney General «. Eichards, 3 Anst. 603. 444 rNJTjNcmoNS. [chap. xvm. § 748. Where tlie effect of an injunction would be to cause material injury to the rights of persons not before the court, the relief will rarely be granted unless in cases of very great necessity, i But upon an application for an injunction the court may proceed against such defendants as have been served with process, although others are not yet served.^ And the fact that parties for whose benefit an injunc- tion will operate are not before the court, though good ground of demurrer to the bill, is no bar to granting the relief, where the property to be protected is in actual danger unless the injunction be allowed.^ And if the act complained of affects a common right of several persons whose interests are, in a legal point of view, substantially the same, proceedings for an injunction may be instituted by one or more of them in behalf of the others.* But the action will not lie against different persons for separate infringements or violations of one and the same right. ^ § 749. It may be laid down as a general proposition, that a court of equity will not enjoin proceedings in an action at law on behalf of one not a party to the suit which it is sought to enjoin.^ The converse of this proposition holds equally true, and an injunction will not be granted in aid of a suit at law against one who is not a party to the action in the legal forum.'' Nor will equity grant relief against an action at law where it satisfactorily appears that the proceedings were undertaken merely at the instigation of another person.^ § 750. Where proceedings under a judgment are enjoined, or an injunction is allowed against a sale of lands under judi- cial process, it is not proper to join as defendants in the bill merely ministerial officers of the court, such as the clerk who issues process, or the sheriff who serves it, they having no ' Hartlepool etc. v. West Hartlepool etc., 12 L. T. N. S. 366. ' Brown i>. Pacific etc., 5 Blatch. 535. • Const 1). Harris, T. & E. 514; Evans v. Coventry, 5 DeGex, M. & G. 911, " Mozley ». Alston, 1 Ph. 790. ' Dilly 1). Doig, 3 Ves. Jr. 486 ; Pollock v. Lester, 11 Hare, 274 • New York v. Connecticut, 4 Dall. 1. ' Chamblin v. Slichter, 13 Minn. 276. 8 Pentney etc. v. Lynn etc., 13 W. R. 983. CHAP. XVm.] PAETIBS. 445 interest in the subject matter in controversy. The injunction operating directly upon the parties to the judgment or pro- ceeding enjoined, is regarded as being operative through them upon all officers of the law acting in consequence of the judg- ment, i An exception is, however, allowed to the rule in cases of fraud, and where there is a fraudulent combination between the officer having the execution in his possession and the judg- ment creditor, or where the officer is charged -with being an active agent in the commission of the fraud, on account of which the judgment is impeached, such officer should be joined as a proper party to the action.* § 751. Where an injunction is asked against a judgment at law, all the plaintiffs who have obtained the judgment must be made defendants in the injunction suit.^ But while it is generally the case that judgments may be enjoined only on the application of those who were parties to the proceed- ings at law, there may be circumstances which require a departure from the rule. Thus, where a judgment has been fraudulently recovered against an agent, and his principals, though not parties to the proceedings, are bound to i-eimburse him on account thereof, they are proper parties to ask relief in equity against the judgment.* § 752. Where an injunction is sought restraining a judg- ment at law in a United States court, which had jurisdiction over all the parties to the action at law, the introduction of new parties in the injunction bill, over whom the court has no jurisdiction, will prevent it from granting the relief prayed. ^ If, however, there be sufficient equity in the case, a stay of proceedings may be granted until relief can be had in the state courts. ° § 753. Questions of great nicety have sometimes arisen in ' Edney v. King, 4 Ired. Eq. 465 ; Lackay v. Curtis, 6 Ired. Eq., 199 ; Olin «. Hungerford, 10 Ohio, 368. " Olin V. Hungerford, 10 Ohio, 368 ; Allen v. Medill, 14 Ohio, 445. ' Berry v. Berry's Heirs, 3 Monr. 363. ' Webster «. Sklpwlth, 36 Miss. 341. 'Dunn®. Clarke, 8 Pet. 1. •Id. 446 iNJUMOTioNS. [chap. xvin. determining who are proper parties to seek relief by injunc- tion against the violation of rights or easements of a public nature. The true test to be applied in all such cases, is to determine whether the persons asking the relief are merely volunteers, or whether they are injured in their individual rights. And while in the latter case the relief will generally be granted, in the former it wiU be withheld. ^ Thus, the owner of adjacent lots may enjoin the appropriation to private purposes of a square dedicated to the use of the public. The complainant in such a case, being one of the inhabitants of the town, and owning property contiguous to the square, is not a mere volunteer, assuming to protect the rights of others, but is entitled to the aid of equity for the protection of his own interests. 2 But, on the other hand, the owners of lots around a square which has been conveyed to a county for the use of public buildings, have not such an individual interest in the ground as will authorize a court of equity in enjoining, on their application, county commissioners from leasing portions of the ground to private persons, reserving the rent to the county. Such complainants are to be considered as mere volunteers, who sustain no injury to their individual rights, and are not entitled to protection in equity.* § 754. Where land has been dedicated to the public use for certain specified purposes, an injunction will not usually be allowed 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 schoolhouse lot, his heir, who is a non-resident, will not be allowed to enjoin the rebuilding of a schoolhouse upon the premises in question. Under such circumstances the erection of a new schoolhouse upon that part of the ground dedicated to school purposes, is ' Smith V. Heuston, 6 Ohio, 101 ; Brown ®. Maiming, 6 Ohio, 398. In illustration of the same general principle, see Putnam B.Valentine, 5 Ohio, 187. ' Brown «. Manning, 6 Ohio, 298. ^ Smith V. Heuston, 6 Ohio, 101. OHAP. xvrn.] PAETiES. 447 no encroachment iipon tlie dedication, and it is error to enjoin its erection.^ § 755. The corporate authorities of a town are proper par- ties to enjoin a public nuisance. Thus, the erection of build- ings upon a public square which has been dedicated as such to the use of the inhabitants of a town, constitutes a public nuisance, which may be enjoined by the corporate authorities. ^ And private persons, specially injured by a nuisance of such a nature, may join with the corporate authorities in filing the bill.* "Where, however, the bill is filed on behalf of private citizens to restrain a public auisance, they must show some special and peculiar injury sustained by themselves, inde- pendent of and distinct from the common and general injury shared by the public alike, in default of which equity will not interfere.* § 756. The simplest and most generally accepted test in determining whether one is a proper party complainant to a bill for an injunction, is whether he possesses a legal or equita- ble interest in the subject matter of the controversy. Apply- ing this test, it has been held that a state was not a proper party to a bill to restrain a county court from issuing bonds and collecting a tax in aid of a railway, the state having no interest, either legal or equitable, in the subject in dispute.' And where an action is brought by the attorney general, in the name of the people, to restrain the execution of a resolu- tion of the common council of a municipal corporation, giving a contract for certain labor to persons who were not ' Pott ». School Directors, 43 Pa. St. 133. ' Trustees etc. v. Cowen, 4 Paige, 310. And see Mayor etc. ■». Bolt, 5 Ves. 129. • Trustees etc. v. Cowen, 4 Paige, 510. * Bigelow V. Hartford etc., 14 Conn. 565 ; O'Brien v. Norwicli etc., 17 Conn. 373; Prink v. Lawrence, 30 Conn. 117; Corning v. Lowerre, 6 Johns. Ch. 439 ; Doolittle v. Supervisors etc., 18 N. T. 160 ; Allen v. Board etc., 2 Beas. 68 ; Hinchman v. Paterson etc., 3 C. E. Green, 75 ; Mechling v. Kittanning etc., 1 Grant's Cases, 614; Beveridge v. Lacey, 3 Rand. 63; Walker v. Shepardson, 2 Wis. 384; Barnes v. Racine, 4 Wis. 454; Williams 0. Smith, 33 Wis. 594. » State V. Parkville etc. 33 Mo. 496, 448 rNJBHcnioHS. [ohap. xvin. the lowest bidders, as required by law, neither the contractors nor the bidders need be made parties. ^ § 757. Taxpayers and residents of a school district are proper parties to institute proceedings for an injunction against the collection of a tax for the payment pf judgments obtained through fraud and collusion against the school dis- trict. ^ It is to be observed, however, the tax being upon the individual property of each tax payer, that the injury, if any, is to his individual rights, and does not affect any common interest; it is therefore requisite that each property holder desiring relief against the tax S'hall bring his separate action, and no one of the number can bring the action in behalf of all. 3 § 758. 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 injunc- tion 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 garnishee's insolvency, and the consequent danger of loss.^ § 759. Where relief by injunction is sought for the protec- tion of the rights of churches and religious bodies, the action is usually brought in the name of the trustees.® Thus, the trustees of a church are proper parties complainant to a bill for an injunction against pretended trustees, to restrain them from meddling with the affairs of the church, and the action need not be brought in the name of the state.' So the trus- tees of a voluntary religious association may, on behalf of theii church, enjoin the violation of a burial ground dedicated to ' People V. Mayor etc., 33 Barb. 35. ' Newcomb v. Horton, 18 Wis. 566. And see Williams v. Peinny, 25 Iowa, 436. ' Newcomb v. Horton, 18 Wis. 566. " Malley «. Altman, 14 Wis. 32 ; Almy v. Piatt, 16 Wis. 169. ' Bigelow v. Andress, 31 111. 822. • Trustees etc. v. Hoessli, 13 Wis. 348; Beatty v. Kurtz, 3 Pet. 566. ' Trustees etc. v. Hoessli, 13 Wis. 348. OHAP. xvra.] PAEiTES. 449 tlie use of tlie churcli by the owner of the soil.^ And under 8ucli circumstances a court of equity will grant relief even against the holder of the legal title. ^ § 760. As between principal and agent, relief by injunc- tion is sometimes necessary to prevent the agent from a wrongful conversion or misappropriation of his principal's property. Thus, where certain specific chattels have been delivered to a person to be held by him as agent, and in viola- tion of hi^ duty to his principal he contracts for the sale of the articles to a third person, the principal is entitled to the aid of equity to prevent the agent from parting with or dis- posing of the goods. 8 So an injunction has been allowed to restrain the transfer of stock in an incorporated company, standing in the name of a steward, upon a strong showing that it was purchased from proceeds of his master's or principal's property.* ' Beatty v. Kurtz, 3 Pet. 566. "Id. ' Wood v. Eowcliffe, 3 Hare, 304. * Chedworth «. Edwards, 8 Ves. 46. But the relief was refused as to money deposited in tank to the account of the steward. 450 rNJUNonoKS. [chap. xvm. II. General Coepoeattoks. 8 761. Jurisdiction founded in trust ; requisites of the bill. 162. Especial caution observed in the exercise of the jurisdiction. T63. Discretionary powers of corporate bodies rarely interfered with. 704. Continuing trespass will warrant the relief 765. Questions touching possession or forfeiture of chartered rights pertain exclusively to courts of law. 766. Jurisdiction in restraint of banking operations purely statutory. 767. Protection of shareholders a favorite jurisdiction of equity; general rule. 768. Illustrations of general rule ; laches a bar to relief. 769. Equity will not permit corporations to imperil rights of private individuaU. 770. Corporations may be restrained from transcending purpose for which they were created. 771. Single shareholder entitled to relief regardless of amount of his interest. 773. Applications to legislature for change in powers of incorporated company. 773. When interlocutory relief allowed. 774. Writ not allowed to restrain acts in furtherance of objects of incorporation. ' 775. Foreign corporations; companies incorporated in two diflFerent states. 776. Merger of incorporated companies may be enjoined. 777. Stockholder's consent may debar him from relief. 778. Writ not allowed where stockholder stands in position of general creditor. 779. Relief against voting on excess of stock ; fraudulent transfers. 780. Relief refused against enforcement of judgment for debt properly contracted. 781. Equity will not interfere with corporate elections; misjoinder of parties. 782. When corporation may be enjoined from collecting subscriptions. § 761. The jurisdiction of equity to control or restrain the operations of corporate bodies, while it is exercised upon the same general principles which govern in other cases, may not inappropriately be considered as a branch of the general jurisdiction of courts of equity oyer the subject of trusts. And unless a breach of trust can be satisfactorily established. OHAP. XVm.j PAETBES. 451 an injunction will rarely be allowed to restrain the application of corporate property or funds to other than corporate purposes.! Where, however, the existence of a trust is established, or corporate property is affected by a trust, equity will interfere for its enforcement and for the protection of the rights of members of the corporation. ^ And the right of any member of a corporate body to invoke the aid of equity to prevent a breach of trust by the majority of the members, may be regarded as well established. ^ To warrant a court of equity in interfering with the proceedings of an incorporated company in the construction of its works, two things must concur: first, it must appear that the company is transcending its charter; and secondly, that the interposition of equity is necessary to prevent an injury which can not be adequately compensated in damages at law.* And while fraud constitutes strong ground for invoking the aid of equity in restraint of the action of corporate bodies, relief by injunction will not be allowed upon mere general averments in the bill of com- plainant's belief of collusive and corrupt conduct. It must either appear from the bill itself that the proceedings sought to be enjoined are void, or particular acts of fraud or prima facie evidence of collusion must be shown, and must be positively sworn to.'' , § 762. Especial caution is observed by courts of equity in granting injunctions whose effect would be to interfere with or suspend the operations of important public works which are being carried on by corporations. Tlie power of granting injunctions, being one of the extraordinary powers of chancery, its improper exercise in cases of public works would be productive of serious injury. The jurisdiction in such cases should therefore be exercised only for the prevention of ' Evan ®. Avon, 29 Beav. 144 ; Attorney General v. Carmartlieii, Cooper, 30. ' Wiswell V. First Churcli, 14 Ohio St. 31 ; Dummer o. Cliippenliam, 14 Ves 245; Attorney General ii. Mayor etc., 1 Bligh, JST. 8. 312. « "Wiswell v. First etc., 14 Ohio St. 81. * James River etc. ■». Anderson, 12 Leigh, 278 ; Gartside v. East St. Louis 43 111. 47. ' Champlin v. Mayor etc., 3 Paige, 573. 452 iNJUNcaiOKs. [chap. xvin. irreparable ixiiscliief, or where the injury complained of is so great and the risk so imminent that no prudent man would think 'of incurring it.^ Nor should the court interfere where the right of the party complaining is doubtful, or where an action at law or in chancery, prosecuted in the ordinary mode, will afford adequate redress. ^ And an injunction to restrain the operations of a large company or corporation, should rarely be granted without notice, on account of the mischief which might otherwise ensue. It is held, however, that a court of equity may properly exercise its discretion in such cases, and the fact that the writ has been allowed without notice, is not of itself sufficient to warrant a dissolution, even though the chancellor might have exercised the discretion differently from the master who granted the injunction.^ § 763. Courts of equity rarely interfere with the exercise of discretionary powers by corporate bodies or their officers, to whom such powers are confided. And it is a well-estab- lished principle of equity, that where acts requiring the exercise of judgment, science and professional skill are confided to the discretion of the officers of a corporation, the exercise of that discretion will not be lightly disturbed, nor will such officers be enjoined, except when abusing their power to the injury of others.* Thus, equity will not interfere by injunction with the discretionary power of a board of canal commissioners in regulating the quantity of water necessary for canal purposes, upon the complaint of persons claiming an interest in the water. ^ Complainants in such case, through whose land the canal passes, have no such vested right as authorizes them to interfere with the discretionary power reposed in the proper officers.^ And, in a controverted question as to the expediency of the location of a railway, ' Stewart t>. Little Miami etc., 14 Ohio, 353. ■Id. ^ Ross 11. Elizabetli etc., 1 Green Oh. 423; Capner ». Flemington etc., 2 Green Ch. 467; Perkins «. Collins, Vo. 483. * Walker d. Mad River etc., 8 Ohio, 38 ; Cooper v. Williams, 4 Ohio, 253. ' Cooper ■». Williams, 4 Ohio, 253. "Id, CEAP. XVm.] PARTIES. . 453 wliere the decision has been confided to the professional judgment and skill of the officers of the corporation, equity will not restrain them in the exercise of that discretion, upon the application pf a person not otherwise afiected or injured than by the actual location passing through his land.i It is to be observed, however, that the discretion of all public agents, especially in the appropriation of private property for public uses, must be brouglft to the test of legal judgment, and equity may enjoin when in the exercise of that discretion such public agents overstep the conditions necessary for the public welfare. 2 § 764. Where a corporation of a quasi public nature, as a canal company, is about to do a permanent injury to private property, under the pretext of improving its works, the act, though a trespass in its nature, being a continuous one, will warrant the interposition of equity. Under suoh circum- stances the trespass itself is aggravated by the abuse of authority by the officers and agents of the corporation, under color of their office, and such official oppression affords strong ground for the exercise of the extraordinary power of equity through the writ of injunction.^ Nor in such case will a court of equity require so strong a showing of irreparable injury before granting the relief as is required to justify an injunction against private persons.* § 765. In connection with the general subject of the inter- ference of equity to restrain the abuse of corporate powers, it is to be observed that questions concerning the possession or forfeiture of chartered rights belong exclusively to courts of law, and are not cognizable in equity. Hence, an injunction will not be allowed against the operations of a banking corpo- ration on the ground that its affairs are being so conducted as to work a forfeiture of its chartered rights. ^ Nor is the exer- ' Walker ®. Mad River etc., 8 Ohio, 38. ° Cooper I). Williams, 4 Ohio, 253. ' Eyan ». Brown, 18 Mich. 313. And see Osborn s. United States Bank, 9 Wheat. 738. * Eyan «. Brown, 18 Mich. 212. ' Attorney General «. Bank of Niagara, Hopk. Ch. 354. 451 rNjDuanoNS. [chap. xthi. cise i.'! banking privileges without autliority, a nuisance whicli Balls for the restraining power of a court of equity, even though it is alleged that the bank is insolvent, and is buying up its own paper at a discount. ^ § 766. The jurisdiction of equity in restraining the opera- tions of banking institutions is purely statutory, and no warrant for its exercise is found in the general equity powers of the court. 2 And where the insolvency of a banking corporation is relied upon as the ground for enjoining its operations, mere affidavits on information and belief are not sufficien^to warrant an injunction, especially when they are directly contradictory to the regular, official reports of the bank, made under oath and published according to law.^ Nor is the court at liberty to infer insolvency, and issue an injunction from the mere fact of the suspension of specie payments.* § 767. The protection of the rights of shareholders in incorporated companies against the improper or illegal action of other shareholders, or of the officers of the company, is a favorite branch of the jurisdiction of equity by injunction. And it may be asserted as a general rule, that courts of equity will enjoin, on behalf of the stockholders of an incorporated company, any improper alienation or disposition of the corpo- rate property for other than corporate purposes, and will restrain the commission of acts which are contrary to law and tend to the destruction of the franchise, as well as the improper management of the business of the company, or a- wrongful diversion of its funds.' And in such cases equity may grant relief at the suit of a single stockholder.* So if the managers ' Attorney General v. Bank of Niagara, Hopk. Cli. 354. ^ Attorney General v. Bank etc., Harring. Micli. 315. " LiYingston v. Bank of New York, 26 Barb. 304. *Id. ' Eean v. Johnson, 1 Stockt. 401, a leading American case ; Manderson v. Commercial etc., 38 Pa. St. 379 ; Sears s.Hotchkiss, 25 Conn. 171 ; Bagshaw «. Eastern etc., 7 Hare, 114; Colman «. Eastern etc., 10 Beav. 1; Attorney General v. Great etc., 1 Dr. & Sm. 154 ; Central etc. v. Collins, 40 Geo. 583. " Kean «. Johnson, 1 Stockt. 401 ; Mozley v. Alston, 1 Ph. 798 ; Simpson v. ' Westminster etc., 8 H. L. 717. And see Gifford v. New Jersey etc., 3 Stockt 171, where the same principle is upheld, though the injunction seems to have been refused on other grounds. rnrAP. xvm.] PAETIES. 465 of the company are about to engage in any enterprise not con- templated by their charter, or are proceeding to apply corpo- rate fonds to any other than corporate purposes, or, in general, if they are transcending their charter, equity will interfere. ^ And where a railway company, without authority of law, is proceeding to become a stockholder in another company, it may be enjoined by its stockholders from thus transcending its charter, the relief being granted, as well for the protection of the stockholders, as because the proceedings are contrary to public policy.* § 768. In accordance with the principles laid down in the preceding section, it has been held that shareholders in a bank are entitled to an injunction against the officers of the bank, to prevent the continued commission of acts which are con- trary to law, and which endanger the existence of the charter;* and this even where, from the affidavits exhibited on both sides, the truth of the charge is left somewhat in doubt, since the awarding of an injunction under such circumstances can work no injury, and only affords the stockholders a proper measure of protection.* So a minority of the stockholders of a corporation, some of whom are also directors, may enjoin the remaining- stockholders, who control a larger portion of the stock, and constitute a majority of the board of directors, from fraudulently mismanaging the business, or diverting the funds. 5 But while the jurisdiction of equity to enjoin any unauthorized departure from the original objects of an incor- poration is unquestioned, a stockholder, invoking the aid of the court by injunction in such a case, must show prorhptness and diligence in the assertion of his rights, and if he waits ■ Smitli V. Bangs, 15 111. 399 ; Beman v. Rufford, 6 Eng. Law & Eq. R. 106 ; Simpson v. Denison, 10 Hare, 51. ' Central etc. ». Collins, 40 Geo. 583. ' Manderson v. Commercial etc., 38 Pa. St. 379. «Id. » Sears v. Hotchkiss, 35 Conn. 171. And it is held that the fact that a remedy at law exists by an action on behalf of the corporation, or of the aggrieved stockholders, against the wrong doers, constitutes no bar to an injunction in such a case. Id. 456 rajuNanoNS. [chap. xvm. until large sums of money have been expended and great public interests created, he "will not be allowed to enjoin. i § 769. Corporations may be/ restrained from any gross abuse of their powers resulting in injury to individuals, since equity will not permit corporate bodies, with whom it is always difficult to deal upon equal terms, to take, under color of authority, proceedings of doubtful legality, if by so doing they place those against whom their proceedings are directed in a position of peril, from which it would be difficult to extricate themselves.^ § 770. Where corporations are created by law for special purposes, they may properly be restrained in equity from exceeding the legitimate scope of their authority, or going beyond the purposes for which they were created. ^ Thus, a railway company has been enjoined from conducting the busi- ness of coal merchants, the company having been created for the specific purpose of constructing a railway. And the action may be properly brought in such case by the attorney general on the relation of a private person having no interest 'in the company.* So a shareholder, suing on behalf of him- self and all other shareholders of a railway company, may enjoin the company from using its funds in establishing a steam packet company in connection with the railway.^ So, too, the relief will be allowed to prevent a railway company from purchasing shares in another company.* § 771. Where relief in eqiiity is sought by an aggrieved shareholder against any mismanagement of the corporate busi- ' Goodin o. Cincinnati etc. E. E., 18 Ohio St. 169. And see Chapman «. Eailroad Go's., 6 Ohio St. 136. « Mayor etc. v. Groshon, 30 Md. 436. ' Attorney General «. Great etc., 1 Dr. & Sm. 154; Colman v. Eastern etc., 10 Beav. 1 ; Salomons ®. Laing, 13 Beav. 339. * Attorney General v. Great etc., 1 Dr. & 8m. 154. It was asserted by Vice Chancellor "Wood in this case to be a "principle of public policy, that where parliament has authorized a company to raise a large capital for a specific purpose, the privilege confers no right upon the company to employ its capital in competition with tlie general public, upon specu- lations of a different kind." " Colman v. Eastern etc., 10 Beav. 1. ' Salomons v. Laing, 13 Beav. 839. CHAP. XVm.J PAPTDES. 457 ness, or misappropriation of corporate funds, the amount of the interest of such shareholder will not be considered in granting the reliefs And a single shareholder, suing on behalf of himself and all others having a common interest with him, is entitled to the aid of equity to prevent a diver- sion of corporate funds to other than corporate purposes, though all the other members of the company are opposed to him. 2 Since, while the members and shareholders of an incorporated company may possibly change the contract which they have entered into with each other, and form a new one by common consent of all parties, they have no right so to do without the consent of every shareholder in the company.* A shareholder miist, however, use due diligence in the asser- tion of his rights, to entitle him to relief in equity against a wrongful diversion of corporate funds, or other misconduct on the part of the company, and negligence on his part in instituting proceedings will deprive him of the relief desired.* And where a corporation departs from the original object of its charter, without the consent of all its stockholders, he who would avail himself of the remedy by injunction, must show that he has been prompt and vigilant in claiming the aid of equity, since if he waits until the mischief complained of is accomplished, he wiU be held to have acquiesced in the change. 5 § 772. Some apparent conflict is to be found in the adjudicated cases, upon the right of stockholders to restrain corporate authorities from taking steps to change the powers or extend the business of the company, by invoking legislative action for that purpose. This conflict is, however, more apparent than real, and no dilBculty will be found in recon- ciling ■ the decisions, by observing the distinction between ' McDonnell v. Grand etc., 3 Ir. Ch. 578. ' Kean v. Jolinson, 1 Stockt. 401 ; Mozley v. Alston, 1 Ph. 798 ; Simpson 0. "Westminster etc., 8 H. L. 717 ; Beman «. Eufford, 1 Sim. N. S. 564. ' Ernest v. Nicholls, 6 H. L. 401 ; Ex parte Morgan, 1 Mac. & G. 236. * Gregory v. Patchett, 33 Beav. 595 ; Kent «. Jackson, 14 Beav. 367 ; Gray e. Chaplin, 3 Russ. 126 ; Chapman v. Mad River etc., 6 Ohio St. 119. ' Chapman ®. Mad River etc., 6 Ohio St. 119. 458 MJTJNCHONS. [c3hap. xvni. cases of a simple application to the legislative authority for a change in the constitution or powers of an incorporated company, and cases where it is sought to divert corporate funds from their legitimate use for defraying the expenses of such an application. The right of a company, acting in its corporate capacity, to invoke legislative aid for changing the objects and powers of the corporation, is unquestioned, and equity will not, at the suit of a shareholder of a company incorporated by act of parliament, enjoin an application to parliament for a change in the constitution of the company, by extending its powers or substituting a new body for the old.i But where it is attempted to use corporate funds for defraying the expenses of such an application, and for procuring an extension of the business of the company beyond the legitimate objects for which it was constituted, an injunction may be allowed, at the suit of shareholders, to prevent such improper diversion of the funds. ^ § 773. Notwithstanding the general rule laid down in the preceding section, that equity will not enjoin an application to the legislature for an extension of the powers of an incor- porated coj^'pany, relief may properly be granted against an application whose object is the destruction of the existing corporation. And where a majority of the members of a company are taking steps to surrender their charter, with a view to obtaining a new one, for a purpose entirely different from that originally contemplated in the creation of the corporation, the minority of the shareholders may rightfully enjoin the proceedings until a hearing. ^ § 774. Although- a shareholder may properly enjoin a corporation from employing its property in a way wholly or materially different from that which was designed by the act of incorporation, yet he will not be allowed to enjoin the doing of acts in direct furtherance of the object of its creation, and which are for the benefit of all the stockholders as such, even ' Ware v. Grand etc., 3 Russ. & M. 470 ; Stevens v. South etc., 13 Beav. 49. * Simpson v. Denlson, 10 Hare, 63; Munt o. Shrewsbury etc., 13 Beav. 1; Stevens v. South etc., lb. 49. » "Ward V. Society etc., 1 Coll 870. CHAP, xvm.] PAEHES. 459 thougli sucli acts may be injurious to the party complaining, in another capacity than that of stockholder, and although the interests of other persons or of the public may be injuriously affected thereby J ISTor will a court of equity, at the suit of stockholders of a corporation, restrain its officers from the exercise of their functions, since such restraint would be equivalent to removal from office, and over such a subject equity has no jurisdiction. ^ § 775. The directors of a foreign corporation will not be enjoined from payment of a dividend, at the suit of one to whom no debt is due from the corporation, and whose only ground for the injunction is a supposed error on the part of the directors in making the dividend. In such a case com- plainant will be left to his redress in the state in which the company was incorporated.* But where the directors ot a company incorporated in two different states, have made issues of stock which are illegal and void, they may .be restrained from using the proceeds of the sale of such stock, until both the states in which the company was incorporated have ratified the issue alleged to be illegal and void.* But the injunction in such a case will only be allowed to stand as to the illegal issue, and dealings in the genuine stock will not be enjoined, nor will the general business of the company be interfered with.^ And an injunction restraining the use of the proceeds of sale of new stock, issued by the directors of a foreign corporation, will not be continued where both of the states in which the company was incorporated have recognized the validity of the issue of the stock against which the writ was directed.* § 776. A consolidation or merger of one incorporated company with another, without authority and without consent of the stockholders, as required by the articles of association, ' Baltimore etc. *. Wheeling, 13 Grat. 40. ' Bayless i>. Orne, Freem. Ch. 161. ' Howell v. Chicago etc., 61 Baxb. 378. < Fisk V. Chicago etc., 63 Barb. 513. •Id. « O'Brien i). Chicago etc., 63 Barb. 568. 460 ESTJiraCTioNS. [cHAr. xvin. may, as to the property not yet transferred, be enjoined nntil the final hearing of the cause. ^ But the new company will not be enjoined from the use of property already transferred, nor will it be restrained from receiving from the stockholders of the old company a surrender of their stock, for the purpose of merging it in the new association. ^ § 777. Where the conduct of the person complaining has been such as to amount to a waiver of his right to object to a proposed conversion of the corporate funds to other than the uses for which they were originally intended, he will not be allowed relief in equity against such use of the funds. Thus, where a depositor in a savings bank has consented that his deposits may be converted into stock, as a security for the payment of the debts of the corporation, and his conduct has been such as to amount to a voluntary dedication of his stock for the purpose of securing the debts, he is regarded as estopped from claiming relief in equity, and an injunction will be refused. 3 § 778. A shareholder of a corporation, claiming that he has been defrauded in the issue of stock, can not enjoin the corporation from disposing of so much of its property as would indenmify him for his loss, since the money which he has contributed' having been mixed with the general funds, he stands in no better position than that of a general creditor of the corporation.* § 779. An injunction will not be allowed upon a bill filed by a minority of a board of directors, to restrain a stoeldiolder from voting upon an alleged excess of stock in his possession, when no steps have been taken by the company to cancel the excess of stock. ' But where the rights of a portion of the stockholders of an incorporation are prejudiced by the con- duct of another portion, who are also directors, and who have improperly caused certain shares to be transferred to them for ' Blatchford v. Boss, 54 Bart. 43. «Id. ' Maryland etc. ®. Schroeder, 8 Gill & J. 93. * Whelpley v. Erie etc., 6 Blatch. 271. ' Reed v. Jones, 6 Wis. 680. CHAP. XVin.] PAETtES, 461 the purpose of retaining themselves in office, an injunction will be allowed to prevent defendants frorn voting on the stock thus improperly transferred. ^ And where relief hj injunction is sought against a corporation, to prevent a fraud- ulent sale of corporate property to one who is not made a party to the bill, such non-joinder is not demurrable.^ But, though an officer of an incorporated company who has made illegal and unauthorized issues of stock to himself, may be enjoined from transferring such stock to a third person, the relief will be allowed only on a proper showing of the ille- gality of the issues and of the proposed transfer. ^ § 780. I^^otwithstanding courts of equity may properly interfere at the suit of stockholders for the protection of an incorporated company, yet where a debt authorized by the company has been created by and with the consent of the shareholders and directors, and judgment is confessed therefor, a consenting shareholder is estopped from enjoining an execu- tion under such judgment.* Nor will an injunction be allowed against the proceedings of a corporation at the suit of a stockholder, when it appears that his bill is not filed bona fide for his own protection, but is only a private bill in aid of other persons. ^ § 781. Courts of equity will neither entertain jurisdiction over corporate elections, nor will they determine the right to a corporate office, since such questions are properly cognizable only in courts of law, the true remedy being by an action at law in the nature of a quo warranto.^ Nor is the fact that relief in such a case is claimed on the ground of fraud, suffi- cient to warrant equity in entertaining jurisdiction for the purpose of granting an injunction.'' And where the court may properly exercise its jurisdiction, a defect in the joinder ' Hilles «. Parish, 1 McOart. 380. ' Abbot «. American etc., 4 Blatch. 489. » Sherman v. Clark, 4 Nev. 138. * Gravenstine's Appeal, 49 Pa. St. 310. ' Sparhawk v. Union etc., 54 Pa. St. 401. « Hartt v. Harvey, 33 Barb. 55. And see Mickles ». Rochester etc, 11 Paige, 118. ' Hartt D. Harvey, 82 Barb. 55. 462 INJUNCTIONS. [chap. xvm. of parties may sometimes prove an effectual bar to granting the relief. Thus, where a bill charges unlawful and improper conduct on the part of a corporation, but prays an injunction against the president, directors and agents, without asking that the ^vrit issue against the corporation itself, such omis- sion is fatal, if insisted upon by defendant. * § 782. "We have already seen that equity will enjoin any improper diversion of corporate funds for other than corporate purposes, and will restrain the managers of a company from engaging in any enterprise not contemplated by the articles of incorporation. 2 The jurisdiction extends even further; and where an incorporated company ceases to prosecute the work for which it was created, and attempts to misapply its funds, or attempts any radical change in the character of the enter- prise in which it is engaged, it may be enjoined from col- lecting the obligations given to support the original under- taking.^ Where, however, the principal object of the bill is the appointment of a receiver for the management of the affairs of a railway corporation, the directors and officers of the company will not be enjoined from acting in their oflScial capacity, where such restraint is not necessary for the accom- plishment of the principal object of the biU.* ' Binney's Case, 3 Bland, 99. " Kean «. Johnson, 1 Stockt. 401 ; Smith v. Bangs, 15 111. 399 ; Sears o. Hotchkiss, 25 Conn. 171. = Illinois etc. «. Cook, 29 111. 237. * Stevens v. Davison, 18 Grat. 819. CHAP. XVra.] PAETIES. 463 III. Municipal Coepoeahons. § 783. Injunctions against municipal corporations founded in trust. 784. Illegal acts, resulting in heavy burdens to tax payers, will be enjoined. 785. Exercise of discretion by municipal authorities will not be enjoined. 786. Fraud a condition of obtaining the relief; right must be clear. 787. Passage of ordinances and resolutions not usually enjoined. 788. Nuisances. 789. Illegal appropriation of private property enjoined; opening of streets. 790. Opening of streets. 791. Holders of municipal securities. 792. Use of schoolhouse for religious purposes enjoined, 793. Misappropriation of land , dedicated to public use, or of public funds, will be enjoined. 794. Party aggrieved must show special injury. 795. Writ not granted against removal of market house. § 783. The jurisdiction of courts of equity to restrain the proceedings of municipal corporations, at the suit of citizens and tax payers, where such proceedings encroach upon private rights and are productive of irreparable injury, may be regarded as well established. ^ In the exercise of the jurisdic- tion, the courts proceed upon the same principles which govern their interference in cases of trusts, a municipal corpo- ration being regarded in equity as charged with and made the depositary of a public trust, and thus amenable to the juris- diction of equity for a breach of that trust. ^ Thus, a city government, being a municipal corporation entrusted with the care of the city property, if it disposes of property, or grants privileges or franchises, without consideration and with no profit to the city, where a proper disposition of such privi- ' Christopher v. Mayor etc., 13 Barb. 567; Milhau v. Sharp, 15 Barb. 193; Stuyvesant v. Pearsall, lb. 244; Lumsden «. Milwaukee, 8 Wis. 485; Smith V. Appleton, 19 Wis. 468 ; Dudley v. Trustees etc., 13 B. Mon. 610. ' Milhau V. Sharp, 15 Barb. 193 ; Stuyvesant v. Pearsall, lb. 244. 464 INJTINCITONS. [CHAF. XVin. leges would inure largely to the benefit of the city, such a breach of trust is committed as calls for the interposition of equity by injunction. ^ § 784. When an act about to be committed by a municipal corporation is clearly illegal, and its necessary efiect will be to impose heavy burdens upon the property of citizens and tax payers, a court of equity is warranted in interfering by injunc- tion for the prevention of such act.^ In such case a more prompt and efficacious remedy is demanded than is afforded by the tardy action of courts of law, and equity alone can admin- ister the necessary relief by the exercise of its extraordinary power by injunction. And the municipal government of a city or town, being entrusted with the control and disposition of municipal affairs, for the benefit and protection of citizens and tax payers, such persons are proper parties to a bill for an injunction against the improper exercise of municipal authority.^ § 785. 'No principle of equity jurisprudence is better estab- lished, than that courts of equity will not sit in review of the proceedings of subordinate political or municipal tribunals, and that where matters are left to the discretion of such bodies, the exercise of that discretion in good faith is conclusive, and will not, in the absence of fraud, be disturbed.* And the fact that the court would have exercised the discretion in a dif- ferent manner, will not warrant it in departing from the rule. Thus, a mere difference of opinion between a court of equity and a municipal corporation as to the proper rate of ferriage to be charged, where the corporation is by its charter vested with the control of certain ferries, and as incidental thereto the right of establishing a tariff of prices, will not justify the court in granting an injunction.^ So a property owner in a city is not entitled to an injunction to restrain the construction ' MUhau V. Sharp, 15 Barb. 193 ; Stuyvesant «. Pearsall, lb. 344. " Christopher v. Mayor etc., 13 Barb. 567. ' Milhau v. Sharp, 15 Barb. 193; Stuyvesant ®. Pearsall, lb. 344; Chris- topher 1). Mayor etc., 13 Barb. 567. ♦JEelsey ®. King, 33 Barb. 410; People v. Mayor, etc., lb. 108. » People B. Mayor etc., 33 Barb. 103. 3HAP. x\til] pabties. 465 of a sewer, on the ground of omiBsions and irregularities in the proceedings of the municipal authorities in opening the streets, the proper remedy being at law by the writ of certiorari.^ Nor in such case will the relief be allowed because the contract entered into by the corporation with the builders of the sewer is defective in form or in the parties thereto.^ § 786. A municipal corporation will not be restrained fi'om entering into any contract within the scope of its authority and the purposes for which it was created, where no fraud or corruption is alleged in the conduct of the corporate authori- ties in making the contract, the only ground for the injunction being a statute which the court construes to be unconstitu- tional and void. 3 And the questions of right involved must generally be clearly and definitely settled before equity will interfere with the action of municipal bodies, and where the purpose of an injunction is to restrain certain action of the common council of a city, but the right in issue is so indefinite as to be a perpetual source of dispute, and the rights of the corporation would probably be disastrously affected by the injunction, it will not be granted.* § 787. The passage of resolutions and the adoption of ordi- nances by the common council of a municipal government, being legislative acts, will not be prevented by injunction. A distinction, however, is properly drawn between the case of restraining an illegal act attempted under the authority and sanction of a municipal body, and restraining the corporation itself from granting such authority. And while courts of equity will not enjoin municipal bodies from the passage of ordinances or resolutions, yet after the passage of such ordi- nances or resolutions, the courts may and will, on a proper case being shown, prevent their enforcement, and for this purpose will enjoin all proceedings.^ So it has been held that the ' Kelsey «. King, 32 Barb. 410. "Id. ' Pullman c. Mayor etc., 54 Barb. 169. * Municipality Ko. 1 «. Municipality No. 2, 12 La. 40. ' Whitney u. Mayor etc., 28 Barb. 233 ; People v. Mayor etc., 32 Barb. 35 ; Pullman v. Mayor etc., 49 Barb. 57 ; Mayor etc. ■». Gill, 31 Md. 375. 30 4r66 iNJtrNCTioiis. [chap. xvm. eommon council of a city may be restrained from enforcing an ordinance authorizing the making of a contract ultTa vires, and which would be void if made, i But to warrant the relief in any case it must appear that the acts complained of are of such a character that full and adequate redress can not be had at law.^ And equity will not interfere to prevent the enforce- ment of a city ordinance simply on the ground of its illegality, nor will it assume jurisdiction to question the lawful election of officers, or the validity of the ordinance _per se, for the purpose of protecting citizens from an uncertain and remote injury.' § 788. Equity will not lend its aid to enforce by injunc- tion the by-laws or ordinances of a municipal corporation, restraining a certain act, unless the act is shown to be a nuisance per se.* And where a body of commissioners, as a ' Pullman «. Mayor etc., 49 Barb. 57. " Gartside v. East St. Louis, 43 111. 47. ' Kearney v. Andrews, 2 Stockt. 70. This was a bill to restrain the enforcement of certain ordinances for altering the grade of streets, on the ground of their illegality. "Williamson, Chancellor, says : " These com- plainants claim the protection of the court because ' they are holders of real estate in said city, and the situation and value of the property of each of them is directly involved in the said proceeding going on and threat- ened; and because, in most cases, the proceedings going on are really useless, and will tend to depreciate their property in value.' If the court can interfere on these grounds, then the owner of land within the jm-isdic- tion of a municipal corporation may question, in this court, the validity of any ordinance of the corporate authorities respecting any real estate within its limits, because the value of his property may he affected by it. This would be assuming a jurisdiction to try the lawful election of officers and the validity of ordinances of corporate bodies upon too slight grounds. How are ' the situation and value of the property of each of these com- plainants directly involved in these proceedings ? ' The mere allegation, amounting to a speculative opinion only of these complainants, is not sufficient for the court to act upon. The injury must be specified, and so pointed out that the court can see it must be an inevitable consequence of the act threatened and complained of." But see Wood v. Brooklyn, 14 Barb. 435, where it is held that the enforcement by a municipal corporar tion of an ordinance which is in violation of the laws of the state, and therefore void, may be enjoined. * Mayor etc. v. Thorne, 7 Paige, 261. In this case an injunction was dissolved, which had been granted at the instance of a city, against certain parties for violation of an ordinance prohibiting the manufacture of pressed hay. CHAP. XVm.J PAETIES. ' 467 board of health, appointed by the executive power of the state, and having no authority for exercising the powers of local legislation, attempt by an ordinance to abate as a nuisance that which is not a nuisance at common law, their proceedings may be properly enjoined. ^ § 789. A municipal corporation which is about to make a ijermanent appropriation of private property to the use of the public, without having taken the requisite steps to determine the necessity for such appropriation, may be enjoined from so doing. 2 But a court of equity will not, at the suit of a municipal corporation, enjoin individual owners of property, to be affected by the proposed opening of a street, from making improvements and building thereon, where the corporation has only taken the initiatory steps toward opening the street, and the provisions of the statute have not yet been complied with.^ In such case, the corporation, showing no vested right, either legal or equitable, which is likely to be injured by the proposed action, is not entitled to the inter- position of equity.* § 790. Where a municipal corporation has complied with all the statutory requirements for the opening of a street, its proceedings wiU not be enjoined upon mere general aver- ments in the bill of complainant's belief of collusive and partial conduct on the part of the corporate authorities.^ And where by a city charter its corporate authorities are vested with exclusive control over the streets, and they grant permission to a railway company to locate its track along the line of a certain street, the owners of property fronting thereon will not be permitted to enjoin the laying of the track." Bujt after a street has been regularly laid out and opened, of a specified width, the common council can not authorize owners of adjoining lots to reduce the width, and ' Schuster v. Metropolitan etc., 49 Barb. 450. ' Lumsden v. Milwaukee, 8 Wis. 485. ' New York «. Mapes, 6 Johns. Ch. 46. •Id. ' Champlin v. Mayor etc., 3 Paige, 573. » Moses «. Pitts^u^gh etc., 21 111. 516. 468 nurNonoNS. [chap. xvm. may be restrained from attempting so to do.i So, too, tlie corporate authorities of a town may be enjoined from encroaching upon the property of private citizens, although such encroachment is made under pretense of preventing obstructions to streets and alleys. ^ § 791. The holder of a county order is treated as a mere general creditor of the county, and as such he can not, before judgment, on his own order and on the return of an execution nulla bona, enjoin the county from the exercise .oi its general right to manage and dispose of its property. ^ But the holder of a city bond may restrain the city council from issuing bonds, under an act of legislature, in violation of the act under which the first bonds were issued, the former act providing that the city should thereafter issue no bonds except for the payment of its indebtedness. Such a provision in the original act becomes a part of the contract, and its violation by the city may be properly enjoiijied.* But a court of equity will not interfere on behalf of a county to enjoin the payment of a debt which has the sanction of moral obligation. 5 § 792. Any misappropriation or wrongful use of corporate property is a fraud upon the rights of corporators, and may be prevented by the aid of equity, where courts of law are powerless to grant the necessary relief. Thus, the use of a schoolhouse by the inhabitants of the school district for religious purposes, against the wishes of any tax payer of the district, is an jimproper use of the corporate property, although the district may have voted to permit such use. And in such case any tax payer of the district is entitled to an injunction, ' Lawrence v. Mayor etc., 2 Barb. 577. " Dudley «. Trustees etc., 13 B. Mon. 610. ' Montague i>. Horton, 13 "Wis. 599. And it is held in this case that the code of procedure has not enlarged the former jurisdiction of courts of equity to grant injunctions restraining the proceedings of subordinate tribunals, or the official acts of public officers, except in the case of temporary mjwa.ctions pendente lite, which may be granted under the code, whether the action be legal or equitable. « Smith «. Appleton, 19 Wis. 468. ' County etc. v. Hunt, 5 Ohio St. 488. CHAP. X7in.J PAETEES. 469 thongli tlie injury sustained by Mm in person be exceedingly slight, since he can have no adequate remedy at law.^ § 793. The rule may be broadly stated, that courts of equity have undoubted jurisdiction to interfere by injunction when the corporate authorities of a city are taking improper or illegal proceedings, under claim of right, to do an act injurious to the rights of citizens and property holders. Thus, where land has been dedicated to a particular purpose, and the common council of a city has appropriated it to another and an entirely different purpose, sufficient ground exists for an injunction, at the suit of the owners of lots adjacent to the street or' square which it is sought to appropriate to a use other than that for which it was originally designed.^ And where the sxipervisors of a county are attempting to misapply the county funds, an injunction is the proper remedy to prevent their action.^ So where the authorities of a county attempt to appropriate and pay to a judge, as a mere gratuity, any portion of the county tlinds, such appropriation not being authorized by law, an injunction will be allowed to prevent its payment. And where, for the purpose of evading the injunction, the supervisors rescind the first order appro- priating the money, and pass a second one to effect the same result, a supplemental bill and injunction will not be required, since the first injunction covers the entire case.* ' Scofield i>. Eighth School District, 27 Conn. 499. ' Cooper V. Alden, Harring. Mich. 73. In this case the common council of the city of Detroit had leased a portion of a puhlio street in which to lay a railway track. » Colton V. Hanchett, 13 111. 615. * Perry i). Kinnear, 43 111. 160. And see Beauchamp ». Board etc., 45 111. 374. "Walker, Chief Justice, pronouncing the opinion of the court in Perry V. Kinnear, says : " In the absence of some law authorizing the perform- ance of the act the board has no power to make such an appropriation. And being unauthorized and illegal, its consummation should have beep restrained. By an unauthorized tax the citizen is deprived of his property without sanction of law. And bodies created for the discharge of public duties, and to aid in conducting the affairs of counties, have not been intrusted with the power to seize and appropriate the property of the people to any but legal purposes. The inhabitants of the state have been secured in the possession and enjoyment of their property against, 470 rajTXNonoNS. [chap. xvin. § 794. To warrant the interference of equity in this class of cases, the aggrieved party must show that some special and peculiar injury, personal to himself, is likely to result from the act complained of, aside from the general injury to the public, i Some conflict of authority exists as to what constitutes such special injury as will warrant a court of equity in interfering, but the better doctrine seems to be, that tax payers of a municipal corporation, as a city or coimty, whose burdens of taxation are increased by the misappropriations of public funds by municipal officers, sustain such special damage as to entitle them to the relief. ^ Thus, the enforcement of a city ordinance which is unconstitutional and void, and which seeks to impose a debt upon the city, may be enjoined by property owners and tax payers of the city.^ So where a board of county commissioners is proceeding without authority of law ta appropriate county funds in aid of the construction of a 1 wlway, a tax payer of the county has such an interest in the f iblic funds as enables him to maintain a bill for an injunc- t on.* And the owner of a state bond, the value of which is as well the officer created by law as private persons. The former can only- exercise power to deprive him of it, in the mode and for the purposes constitutionally authorized by law. If his property may be seized for one illegal i^urpose, it may for another,' and all protection ceases. The power to levy and collect taxes is, a power to take from the citizen his money, with or without his consent, and when it is attempted to exercise such a power, courts will not hesitate to afford preventive relief. And, as this was an attempt to exercise unauthorized powers and wrongfully to appro- priate the money of the citizens of the county, the court below should have overruled the motion to dissolve the injunction. And for this error, the decree of the court below must be reversed and the cause remanded." ' Jones «. Little Eock, 25 Ark. 301. s Mayor etc. i). Grill, 31 Md. 375 ; Harney v. Indianapolis etc., 33 Ind. 244. But see, contra, Craft «. Jackson Co., 5 Kan. 518. » Mayor etc. ». Gill, 31 Md. 375. * Harney v. Indianapolis etc., 33 Ind. 244. Say the Court, Frazer, C. J. : * * * "But it is contended that a tax payer has no such interest in the funds belonging to the county treasury as will enable him to maintain a suit to prevent unlawful appropriations thereof. We can not regard this question as open to further discussion in this court. It has been a common remedy in this state, and has been sanctioned by repeated judg- ments here. Lafayette v. Cox, 5 Ind. 38; Oliver v. Keightley, 24 Ind. 514. OHAF. XVra.J PAETIES. 4:71 being depreciated and its security diminislied by the improper diversion of tbe public funds by the state treasurer, may enjoin the treasiirer, since he has a direct and peculiar interest in the preservation and lawful administration of the funds of the state, aside from his general interest as a citizen. ^ § 795. Where, by the provisions of its charter, general authority is conferred upon a city to establish and regulate markets and market places, the corporate officers will not, in the absence of any threatened abuse of corporate authority, be enjoined from removing a market house, and tax payers, as such, have no sufficient ground for preventing the removal by injunction, whatever rights adjacent proprietors and others injuriously affected may have.^ It has been sanctioned elsewhere. New London «. Brainard, 22 Conn. 552. It is sanctioned by establislied principles, acted upon and recognized every-n'liere. The citizen may not he able to protect himself in any other way. If this is not his remedy, he has none. The money drawn from him by taxation may be squandered by unlawful donations to forward all manner of visionary schemes ; other contributions may be wrung from him from year to year, and wasted in the same way, in defiance of laws carefully framed for his protection, and he would nevertheless be helpless. A more proper case for injunction can not be well conceived than that in which a tax payer seeks to protect from lawless waste a public fund, which, when dissipated thus, the law will with strong hand compel him to replenish. See Gifford v. N. J. R. K. Co., 3 Stockt. 171." ' Graham v. Horton, 6 Kan. 343. ' Gall V. Cincinnati, 18 Ohio St. 563. 472 iNjuNcnoNS. [cjhap. xvni. lY. PuBUC OimCEKS. § 796. tieneral rule. 797. Equity will not review action of inferior tribunals. 798. Will not decide riglit to hold office. 799. Applications of the rule. 800. Effect of the writ. 801. Possible remedy at law no bar to injunction. 802. Relief where legal remedy is insufBcient. 803. Continuing trespass enjoined. 804. Rule as to complainant's interest. 805. President of United States will not be enjoined from executing law of congress. 806. Injunction against agents of the government. 807. Special cases. 808. Subscriptions in aid of railway. 809. Special cases. § 796. The preventive jurisdiction of equity extends to tne acts of public ofBcers, and will be exercised on behalf of private citizens v^ho sustain such injury at the hands of those claiming to act for the public, as is not susceptible of repara- tion in the ordinary course of proceedings at law. And it may be stated as a general rule, that where public officers, under color and claim of right, are proceeding to impair either public or private rights, or where their proceedings will result in serious injury to private citizens, without any correspond- ing benefit to the public, or where the aid of equity is neces- sary to prevent a multiplicity of suits, an injunction vsdll be allowed. 1 Thus, commissioners acting under color of law, and proceeding without any real legal authority to permanently appropriate the land of a private citizen to a purpose con- nected with a work of internal improvement, may be enjoined from proceeding vnth such appropriation. And in such a case it is no answer to say that the land, independent of the ' Green v. Green, 34 111. 320 ; Mohawk etc. v. Artcher, 6 Paige, 83 ; Oakley e. Trustees etc., lb. 363. And see Green v. Oakes, 17 111. 349, and cases cited. OHAP. XVra.] PAETIES. 473 use to wMcli it is to be put in making the improvement, would be of little value, or that the injury to the owner would be trivial by allowing the work to proceed. ^ § 797. Equity will not interfere by injunction for the purpose of controlling the action of public officers constituting inferior quasi judicial tribunals, such as boards of supervisors, commissioners of highways, and the like, on matters properly pertaining to their jurisdiction, nor will it review and correct errors in the proceedings of such officers, the proper remedy, if any, being at law, by writ of certiorari.^ So where com- missioners of roads and highways are by law entrusted with full jurisdiction over matters pertaining to changes in the roads, a court of equity will not interfere with the exercise of their discretion, unless a strong case of fraud or irreparable injury be shown. And where they have exercised their discre- tion and made their decision in good faith, and without any intention of oppressing or injuring private persons, an injunc- tion will not be allowed against their action. ^ But a minis- terial officer, whose rights and powers are conferred by statute upon certain conditions, may be enjoined from acting con- trary to authority, if his acts are likely to result in public injury, such a case being distinguishable from that of a municipal corporation exercising legislative functions or discretionary powers.* ' McArthur v. Kelley, 5 Ohio, 139 ; Morehead «. Little Miami etc., 17 Ohio, 340 ; Anderson ». Commissioners etc., 13 Ohio St. 635. ' Mooers v. Smedley, 6 Johns. Oh. 38 ; Mayor etc. «. Meserole, 36 Wend. 182 ; Van Doren v. Mayor etc., 9 Paige, 388 ; Livingston v. Hollenbeck, 4 Barb. 10 ; Bouton v. Brooklyn, 15 Barb.' 375 ; Gillespie v. Broas, 33 Barb. 370; Hyatt ii. Bates, 40 N. Y. 164. In Mooers v. Smedley, 6 Johns. Ch. 38, Kent, Chancellor, observes : " I can not find by any statute, or precedent, or practice, that it belongs to the jurisdiction of chancery, as a court of equity, to review or control the determination of the supervisors in their examina- tion and allowance of accounts and causing the money to be raised, * * the review and correction of all errors, mistakes and abuses in the exer- cise of the powers of subordinate public jurisdictions and in the official acts of public officers, belongs to the supreme court. * * * it has always been a matter of legal and never a matter of equitable cognizance." ' Warfel v. Cochran, 34 Pa. St. 381. * Lane v. Schomp, 5 0. E. Green, 83. 474: iNjTOTcrnoKS. [chap. xvnr. § 798. A court of equity is not the proper tribunal for determining disputed questions concerning the appointment of public officers, or their right to hold office, such questions being purely of a legal nature, and cognizable only by courts of law. Thus, equity will not interfere by injunction to restrain persons from exercising the functions of public offices, on the ground of the illegality of the law under which their appointments were made, but will leave that question to be determined by a legal forum. And a temporary injunction granted fendente lite, and until the question of the validity of the law under which defendants claim their offices can be determined, will be dissolved, i § 799. "Where a specific remedy by qyio warranto exists at law for the unlawful usurpation of an office by one not entitled thereto, a court of equity will not entertain jurisdiction of the offense, and will not grant an injunction against the incumbent ' The People etc. «. Draper, 24 Barb. 265. This was an action brought by the attoi-ney general on behalf of the people, to determine the rights of defendants to the oflBces of police commissioners of the city of New York, plaintiffs relying on the invalidity of the law under which defendants derived their appointment. A temporary injunction having been granted restraining the defendants, pendente lite, from exercising any of the func- tions of their offices, it was dissolved on the ground that the case was not one demanding equitable relief. Peabody, J., says : " I am inclined to think that such relief has not been deemed consistent with the interest of the state, with enlightened public policy, or with the general principles which must govern as to an office emanating from the sovereign power, and that hence it has never been adopted in practice ; that the public wel- fare has been deemed to require that an actual incumbent of an office should not be forbidden to perform the duties of it for the time being, even though his title to the office were doubtful ; that the public should not be deprived of the benefit of an office merely because it was uncertain whether the person in and ready to perform the duties of it were there rightfully, even while the title of the party assuming to act should be in controversy. To restrain the action of the incumbent is to restrain all the functions of the office; for he being in — even if wrongfully — no one else can enter until he is removed, and he must act, or no one can. And it is not at all difficult to see that in very many and most cases, the public interest would require that the duties of an office should not be suspended, and its functions cease, until the matter of personal right between rival claim- ants could be determined." OHAP. xvin.J PAimEJS. 475 of the office. 1 Especially will tlie court refase to interfere where the answer fully denies the equity of the bill, and shows satisfactorily that defendant has a legal right to the office in question. 2 Nor will the right to an office in an incorporated company be tried upon an application for an injunction; nor will one who has been wrongfully removed from such an office be restored by injunction.-'' Where, however, two different bodies are attempting, under elaita of right, to act as the com- mon council of a city, a preliminary injunction may be granted, on the ground that the acts in question are contrary to law and prejudicial to the interests of the community,- and because no adequate remedy can be had at law.* § 800. The effect of an injunction restraining a public officer from doing an official act, is to protect him from pro- ceedings at law to compel the doing of the act enjoined. Thus, where a town treasurer is restrained by injunction from paying over certain moneys collected by him in his official capacity, a writ of mandatrvus will not lie to compel him to make the payment. 5 § 801. The fact that persons injured by the acts of public officers have a possible remedy at law, will not deprive them of relief in equity. And where public officers are proceeding illegally and improperly, under color and claim of right, to open a private road across the works of a railway company, an injunction may be granted, although complainants might have lain by until the road was completed, and then recovered dam- ages at law for injuries sustained, equitable relief being granted in such case on the ground of preventing a multiplicity of suits.* ' Hagner «. Hejrberger, 7 "Watts & S. 104; Updegraflf «. Crans, 47 Pa. St. 103. It is to be observed that the equity powers of the courts in the State of Pennsylvania, are defined by statute as extending to the preven- tion of acts contrary to law. ' Maryland ®. Jarrett, 17 Md. 309. ' Sherman «. Clark, 4 Nev. 138. < Kerr «. Trego, 47 Pa. St. 292. ' State e. Kispert, 21 "Wis. 387. « Mohawk etc. ». Artcher, 6 Paige, 83. And see Belknap t. Belknap, 2 Johns. Ch. 463 ; Livingston «. Livingston, 6 Johns. Ch. 497. 476 mnmcmoNB. [cjhap. xvra. § 802. Where commissioners, appointed under an act of legislature for the purpose of creating a new county, are pro- ceeding in violation of the constitution of the state, their proceedings may be perpetually enjoined, notwithstanding the common law remedy by quo warranto, since the legal remedy woiild be manifestly inadequate to meet the necessities of such a case J The interposition of equity under such circum- stances, is based upon the doctrine of quia timet and the necessity of preventing irreparable mischief. ^ If, however, the county has been fully organized aiid put into operation under the act of the legislature establishing it, a coiirt of chancery has no power to abolish it, or to restrain its ofiicers from performing their functions. ^ § 803. Where inspectors, appointed in pursuance of a law of the state for the drainage of swamp lands, exceed their powers, thereby causing injury to neighboring mill owners in the enjoyment of the water for their mills, an injunction may be allowed, even though an action of trespass would lie, since the case is not one of an ordinary trespass, but the injury is continuing in its nature, and the interposition of equity is needed to prevent permanent mischief and a multiplicity of suits.* ' § 804. He who seeks to restrain improper or unlawful conduct on the part of public officers, must allege sufficient facts to show that he has such an interest in the public wel- fare as to make him a proper party to prevent the commission of a public wrong. It will generally suffice that the persons seeking the injunction are residents and tax payers. Thus, it is held that complainants, who are voters and tax payers in a county, are proper parties to enjoin unauthorized expenditures of county funds by a county judge. ^ But an injunction will not be granted to restrain county officers from removing their offices to another location, at the suit of one who does not ' Bradley v. Commissioners, 3 Humph. 438. ' «Id. * Ford v. Parmer, 9 Humph. 153. ' Belknap «. Belknap, 3 Johns. Ch. 463. ' Rice V. Smith, 9 Iowa, 570. CHAP. XVin.J PARTIES. 4:77 show himself to be a resident and voter of the county, and who shows no interest in the result of the controversy.' § 805. A bill for an injunction will not lie against the President of the United States, to prevent him from executing a law of congress, on the ground of its unconstitutionality, since the judicial department of the government has no power to interfere with the executive in the performance of his official duties. 2 Nor will a bill of snch a nature be entertained in a court of equity because it describes the president as a citizen of a state.'^ § 806. An injunction will not be granted on behalf of a riparian owner to restrain the agents of the government from making alterations in a navigable stream, where the alleged injury is mere matter of opinion, and is denied by defendants.* But it would seem that where congress entrusts an appropri- ation for public improvements to one of the departments, which in turn employs agents to do the work, this department and its agents may be enjoined Irom doing the work in an improper manner, although an injunction would not lie against the United States. ^ § 807. Public officers, acting under authority of a state, will not be restrained from taking private property for works of public improvement until suitable compensation is made for the property taken, where a mode is provided by law for the assessment of the damages sustained.' Ifor will equity lend its aid to enjoin a sheriff from proceeding under process of the court, where the injunction is sought merely to aid complainant in a proceeding at law which is unwarranted and oppressive.' ' Henderson v. Marcell, 1 Kan. 137. ' Mississippi v. Johnson, 4 "Wal. 475. »Id. ' Avery o. Fox, 1 Abb. U. S. E. 246. 'Id. ' Heeton v. Canal Commissioners, Brightly, 183. ' Haight B. Executors etc., 2 Green Ch. 386. "I can not," says Vroom, Chancellor, in this case, " restrain a public officer acting under the writ of this court, for the purpose of aiding the complainants in -what I consider an unlawful proceeding in a court of law." 478 rNJUNGnoNS. [chap. xvni. § 808. Where town officers are about to deliver to a rail- way company tlie bonds of the town, issued in aid of the railway, and are proceeding in violation of the conditions of subscription, they may be perpetually enjoined, on the ground that if the bonds should be negotiated the town might be embarrassed in defending against them at law.i But a tax payer of a town which has issued bonds in aid of a railway, can not enjoin the transfer or delivery of the bonds to the officers of the company on the ground that they were not legally elected, they being officers de facto of the company. ^ § 809. Commissioners for the drainage of swamp lands, appointed under an act of legislature held to be unconstitu- tional and void, may be enjoined from proceeding under the act by the owners of land aggrieved thereby.* And where a town has voted to loan its surplus revenue in an illegal and unauthorized manner, a court of equity may properly enjoin the trustees from complying with such vote.* So an injunc- tion has been allowed to restrain the trustees of a church from leasing the church property for school purposes, contrary to the terms of the grant. ^ ' Danville t. Montpelier etc., 43 Vt. 144. ' Sauerliering ®. Iron Ridge etc., 25 "Wis. 447. • Hartwell s. Armstrong, 19 Barb. 166. • Pope t>. Halifax etc., 13 Cush. 4It ' Perry v. McEwen, 22 Ind. 440. OHAF. XVm.] PAEHES. 4:79 V. Paetnees. § 810. General rule and illustrations thereof. 811. Mere temptation to dishonesty no ground for relief. 813. Publication of partnership letters, when enjoined. 813. Violation of partnership articles enjoined. 814. Judgments against indiTidual partners. 815. Exclusion of partner from the business. 816. Partner may be restrained from improper interference with the business. 817. Regard will be had to the nature of the business and scope of part- ner's authority. 818. Agreements by retiring partners not to carry on business enforced by injunction. 819. Relief after dissolution. 820. Effect of statute. 831. Fraudulent disposal of partnership property will be enjoined. 833. Use of firm name. 833. Special cases. 834. Receivers. 835. Receivers. 836. Effect of appointment or removal of receiver upon injunction. § 810. Courts of equity will entertain jurisdiction to pre- vent by injunction members of a copartnership from the commission of acts inconsistent with the terms of their agree- ment, and from violating the rights of their copartners. The jurisdiction is founded upon well-established principles of equity, and is exercised irrespective of whether a dissolution of the partnership is sought.^ Thus, where several partners are engaged in trade, one of their number may be enjoined from ' Cropper v. Coburn, 3 Curtis, 465 ; Marble Company v. Ripley, 10 Wal. 339; Miless. Thomas, 9 Sim. 606; Fairthorne s. Weston, 3 Hare, 387. In the latter case it was said by "Wigram, Vice Chancellor, that, "If that were the rule of the court, if a bill would in no case lie to compel a man to observe the covenants of a partnership deed, unless the bill seeks a dissolu- tion of the partnership, it is obvious that a person fraudulently inclined might, of his own mere will and pleasui'e, compel his copartner to submit to the alternative of dissolving a partnership, or ruin him by a continued violation of the partnership contract." 480 INJUNCTIONS. [cMAP. xvm. using force to the obstruction or interruption of the trade, and from removing or displacing servants employed by the other partners, and from removing the books and papers relating to the business. 1 And where one of the members of a firm has been temporarily insane, and on his recovery his copartners exclude him from the management of the firm business, an injunction will be allowed to restrain them from thus exclud- ing him from the business. ^ So where a partnership is formed for a term of years, to be terminated on notice by either party for a given length of time, an injunction will be granted to prevent one partner from obstructing the other in the enjoy- ment of his partnership rights, and from any improper use of the partnership funds or effects.^ § 811. Mere temptation to dishonesty and to the abuse or improper use of partnership property, will not of itself induce a court of equity to interfere. And where all the partners save one engaged in the piiblieation of a newspaper, are also partners in a rival publication, an injunction will not be granted to restrain one of the papers from using the material of the other under a contract which has been long acted on.* J3ut an injunction is proper in such a case to prevent one of the papers from publishing any information obtained exclusively at the expense of the other, until published in the paper thus obtaining it. ^ § 812. One member of a copartnership may be enjoined, after a dissolution of the firm, from publishing letters received from his copartner, which were written and received in the course of their partnership business and pertained to that business, where the purposes of justice do not require the publication. The interference of the court in such case is based upon the principle that the writer of a letter does not transfer the absolute property in or ownership of the letter to the person receiving it, who is only authorized to use it for ' Brewers' Case, 19 Ves., second English edition, note to page 148. ' Anonymous, 2 Kay & J. 441. ' Hall ». Hall, 12 Beav. 414. * Glassington v. Thwaites, 1 Sim. & St. 124. 'Id. CHAP. XVUl.] PAETtES. , 481 the purpose for wHch it was sent, the ownership of the letter still remaining in the writer. ^ § 813. Where a partnership is formed for a given period, a member of the firm may be enjoined from withdrawing and entering upon a new partnership before the expiration of that period, and the new partners may also be enjoined from carrying on business with such partner, or otherwise, in the name of the original firm, and from receiving letters addressed to such firm.® And where, in violation of his partnership articles, one of the proprietors of a theater engages in writing plays for another theater, an inj auction may properly be allowed. 3 § 814. Where, under a judgment at law against one member of a copartnership for his individual debt, his interest in the firm property has been levied upon, a court of equity will not enjoin the proceedings until the partnership accounts have been liquidated. Such a proceeding would inevitably cause great delay and embarrassment to the individual creditors, and equity will not lend its aid to thus impede a creditor in the enforcement of his just demand.* And a creditor of the firm, who has not yet reduced his claim to judgment, has no such quasi lien upon the partnership property as to entitle him to the aid of equity to restrain a ' Roberts ®. McKee, 29 Geo. 161. And see Gee v. Pritcharcl, 3 Swans. 408. ' England v. Carllng, 8 Beav. 129. ' Morris ■». Colman, 18 Ves. 437. ■■ Moody V. Payne, 2 Johns. Ch. 548. The rule as laid down in the text is sustained by no less an authority than Chancellor Kent, who observes in Moody v. Payne : " I do not know that this court has ever undertaken to stop an execution at law, in such a case, until the partnership accounts have been taken, and it would be too much for me to assume it without precedent. The principle would go to stay executions at law, in every case, against the partnership property of one partner who owed separate debts, until the disclosure and liquidation of the concerns of the co- partnership. This would produce inconceivable delay and embarrassment in respect to separate creditors." But see Place «. Sweetzer, 16 Ohio, 142, and Sutcliffe «. Dohiinan, 18 Ohio, 181, where it is held that when an execvition has been levied upon partnership property to satisfy the indi- vidual debt of a member of the firm, the sale of the proiDerty may be restrained until the interest of the partner is ascertained. 31 482 rNjTJNcnoNS. [chap. xvm. JTidgment creditor of an individual member of the firm from satisfying his judgment out of the firm property. The rule is deducible from the general principle that a creditor at large, or before judgment, is not entitled to the interference of a court of equity to prevent his debtor from disposing of his property, but must first reduce his claim to judgment. ^ § 815. The exclusion of one partner from the premises where the firm business is being conducted, and preventing him from participation in the business, constitutes sufiicient cause to warrant a court of equity in restraining the remaining partners from receiving and collecting debts due the firm.^ But where one member of a firm has been enjoined from intermeddling with the partnership assets and effects, he is not guilty of a breach of the injunction in giving authority to an attorney to confess judgment for a debt due to a creditor of the firm, for the purpose of enabling such creditor to obtain a priority over other creditors by levying on the partnership assets. 3 § 816. In an action for a dissolution of a partnership the court may, upon proper showing, restrain any member of the firm from improper interference with the business, or from committing any damage to the property of the firm.* Thus, one member may be enjoined from collecting any debts due the copartnership, or from accepting or negotiating bills of exchange for other than partnership purposes." And the court may even restrain one partner from using the firm name in any manner in drawing or indorsing commercial paper, or in accepting bills of exchange.' And where, upon a dissolu- tion, one of the partners takes all the property and assets, agreeing to pay all the debts, and to hold the other partner ' Young «. Frier, 1 Stockt. 465 ; Mittnight v. Smith, 3 C. E. Green, 359. » Wolbert v. Harris, 3 Halst. Cli. G05. ' McCredie ®. Senior, 4 Paige, 378. * CrockforcT o. Alexander, 15 Yes. 138 ; Smith v. Jeyes, 4 Beav 503 ; ilarshall i). Watson, 35 Beav. 501. ' Kead ii. Bowers, 4 Bro. C. C. 441 ; "Williams «. Bingley, 3 Vern. 278, note. » Jervis v. White, 7 Ves. 413 ; Hood v. Aston, 1 Russ. 413. CHAP. XVm.] PAETIKS. 483 harmless on account thereof, but afterward becomes insolvent and threatens to dispose of the property for his own benefit, leaving the debts unpaid, he may be enjoined at the suit of the creditors from doing the acts threatened, i § 817. In granting or withholding relief by injunction in cases arising between partners, the courts will look to the nature of the business in which the firm is engaged, and regard will be had to the scope of the authority of the ■ partners as confined to that particular business. And where the object of a firm is not the buying and selling of goods, but the conducting a newspaper, to which the continued ownership of the partnership property is indispensable, an attempt by one partner to sell the entire property of the firm will be enjoined, such an act not being properly within the scope of the partner's authority.^ § 818. Agreements by one or more of the retiring mem- bers, on the dissolution of a firm, not to carry on the firm business, may be enforced in equity by enjoining any attempt at their violation. Such agreements are not to be construed as in restraint of trade generally, nor are they in contravention of public policy, and there being no adequate remedy at law for their violation, a court of equity is the proper tribunal to afford relief. 3 Thus, where one of several partners er- gaged in the carrying trade, purchases the interest of all the others in the assets and good will of the business, they agreeing in writing not to do anything which will impair or injure the good will of the trade, equity will enjoin them from taking any steps tending to draw away the business to themselves. In such a case, the injury being a constantly recurring one, the damages sustained are not susceptible of accurate computa- tion, and an action at law would afford no adequate redress for the loss sustained.* § 819. While the objections to the interference of equity by injunction in partnership cases are less strong after ' Deveau «. Fowler, 3 Paige, 400. ' Sloan «. Moore, 37 Pa. St. 217. ' Angier i}. "Webber, 14 Allen, 211 ; Wlilttaker o. Howe, 3 Beav. 383. * Angier ». Webber, 14 Allen, 211. 484 rNJCTNcnoNS. [chap. XYrn. dissolution than before, yet even then some urgent and pressing necessity must be sbown to induce the court to sustain an injunction. And where the partner against whom the writ has been granted has the legal right to the partner- ship property, in accordance with the terms of the contract of dissolution, an injunction will not be sustained to restrain him from the management of the property, the bill containing no allegations of his insolvency. ^ § 820. While, as we have already seen, a creditor at large whose claim has not been established by judgment, will not be allowed to interfere with the disposition either of his debtor's partnership or individual property, the rule may be varied by statute. And under a statute authorizing a cred- itor to vacate any conveyance or contract made by the debtor which is ft-audulent as against creditors, without first reducing his claim to judgment, the creditor may rightfully enjoin a fraudulent assignment of the effects of a copartnership. ^ But an injunction in such case, while it will embrace all the partnership property included in the fraudulent assignment or transfer, will not affect the separate property held Ijona fide by individual members of the firm, and not claimed by them under any fraudulent transfer of property originally owned by the copartnership.^ § 821. A member of a partnership who holds notes for the benefit of the firm, and attempts to pledge or pawn them for his own private debts, is guilty of such fraudulent misappro- priation as will be restrained by a court of equity.* So, too, if one partner attempts to dispose of specific chattels belonging to the firm, pending litigation for the adjustment of the part- nership affairs, he may be enjoined.^ And if one partner brings an action at law against another, where, having regard ' O'Biyan e. Gibbons, 3 Md. Oh. 9. And see Drury ». Roberts, lb. 157. " Sanderson ». Stockdale, 11 Md. 563. 'Id. * Stockdale v. Ullery, 37 Pa. St. 486. And this under a statute autlioriz- ing injunctions to restrain acts "contrary to law," tlio court bolding that acts contrary to equity were within the purview of the statute and should be enjoined accordingly. " Ellis D. Commander, 1 Strob. Eq. 188. CSttAP. XVni.] PAETIES. 485 to the state of the partnership business and accounts, such action should not be brought, an injunction may be granted. i So where one partner sells to the other his entire interest in the partnership property, with an implied warranty of title, a subsequent levy upon and sale of the property by creditors of the firm, is such a failure of consideration as will warrant a court of equity in entertaining a bill, on behalf of the sureties of the purchaser, to enjoin proceedings at law for the purchase money. ^ § 822. The right to use the firm name may be regarded as one of the partnership assets, and if upon a dissolution one member of a firm purchases the entire business, the name is regarded as passing with the other assets, and the retiring partner may be restrained from its use.^ And a surviving partner having the right to use the firm name of the partner- ship may, if he has not abandoned the right, restrain the executor of the deceased partner from using the name for his own benefit.* § 823. An injunction has been allowed to restrain one person from representing another to be his partner and holding him out to the world as such, without his consent or authority. ^ But equity will not interfere to prevent a partner from acting in that capacity, merely because public confidence in the firm might be shaken if it were known that such person was a partner.' And where an injunction has been allowed to restrain one partner from interfering with another's rights as a member of the firm, it will be dissolved on the coining in of the answer showing that the partnership has been dissolved by mutual consent.'' § 824. The appointment of receivers in partnership cases depends largely upon the special circumstances of each partic- ' Gold V. Canham, 1 Ch. Cas. 311. ' Hough v. Cliaffin, 4 Sneed, Tenn. 238. • Banks v. Gibson, 34 Bear. 566. * Lewis «. Langdon, 7 Sim. 423. ' Routh V. "Webster, 10 Beav. 561. ' Anonymous, 2 Kay & J. 441. ' Yan Kuren v. Trenton etc., 3 Beas. 302. 486 iNJDHCTioNS. [cjHAP. xvm. ular case, and it is difficult to lay down any rules of general application. It does not necessarily follow because a partner- ship has been dissolved and because a partner is entitled to an account, that he is therefore entitled to an injunction and' a receiver; but there must be some actual abuse of the rights of a copartner, or of the partnership property, before a court of equity will interfere.' And in the case of a dissolution by the sale of the interest of one partner under an execution against him individually, the court will be governed by the same rule, in interfering with the other partner, as in case of a dissolution by death; and the injunction will not be allowed if the equities do not clearly warrant it.^ § 825. Upon a bill between partners for a settlement of the affairs of the partnership, after a dissolution, the insolvency of the defendant will warrant the court in granting an injunc- tion and appointing a receiver for the protection of com- plainant. The insecurity of the partnership assets in such a case, if left in the control of an insolvent member of the dis- solved firm, affords strong ground for equitable relief* And where, through the improper conduct of one of two part- ners, such a want of confidence exists between them as is sufficient to warrant the court in dissolving the partnership, a receiver may be appointed and an injunction allowed, the injunction in such case following the receiver almost as a matter of course.* § 826. The continuance of an injunction granted to preserve partnership property from waste, pending an appli- cation for the appointment of a receiver, must depend upon the fate of such application, and if the receiver is denied, the injunction must be dissolved." But the injunction being regarded as auxiliary to the appointment of a receiver, upon the removal of the receiver and the appointment of another, the injunction originally allowed will be continued as of course.' ' Renton d. Chaplain, 1 Stockt. 63. 'Id. ' Randall ». Morrell, 3 0. E. Green, 848. * Seighortner v. Weissenborn, 5 0. E. Green, 173. " "Walker v. House, 4 Md. Ch. 89. * Williamson v. Wilson, 1 Bland. 418. CHAP. XVKI.] PAETIES 487 VI. EXECDTOES AND A nMTNIgrRATOES. § 837. Jurisdiction generally exercised for protection of estate. 828. Improper distribution of estate enjoined. 839. Defective execution of powers of administrator a ground for injunc- tion. 830. Judgment against administrator, -when enjoined. 831. Special cases. § 827. The granting of injunctions for or against executors and administrators, is based upon principles of a purely equi- table nature, and the jurisdiction is generally exercised for the protection of the estate to be administered, though it may, as we shall hereafter see, be allowed for the protection of the executor or administrator personally. It may be said gener- ally, that proceedings by an administrator without due and sufficient authority may be enjoined at the suit of the next of kin. Thus, where an administrator is proceeding without proper authority to sell the effects of his intestate, an injunc- tion is the proper remedy, i § 828. "Where the executors of a decedent refuse to distri- bute the estate ratably among the creditors, according to the terms of the devise, and threaten to secure certain favored creditors who are entitled to no preference, either at law or in equity, an injunction may be allowed to prevent them from making such a disposition of the estate. ^ And where a non- resident and insolvent executor is seeking by suit in the common law courts to obtain possession of a fund belonging to the estate, he may be enjoined from proceeding with his snit, upon a strong showing of danger of his wasting or misap- plying the fand.* But it is to be observed that insolvency of the executors is not of itself sufficient cause to warrant a court of equity in restraining them from a sale of the property, ' Lawrence d. Philpot, 37 Geo. 585. ' Depau ti. Moses, 3 Johns. Ch. 849. ' Dougherty v. Walker, 15 Geo. 443. 4:88 iNjTOTcnoMS. [cHjiP. svm. and thereby taking the administration of the estate out of their hands. ^ § 829. The defectiye execution of the powers conferred upon administrators, constitutes ground for relief in equity in favor of honafide purchasers for valuable consideration. Thus, the heirs of a deceased person may be enjoined from prosecuting an action of ejectment for tlie recovery of real estate sold by the administrators of the estate, the only foundation for the action being the omission of one of the two administra- tors to join in the conveyance. The sale having been con- summated and the purchase money paid in good faith, the purchaser is entitled to the aid of equity to relieve against the defective conveyance.^ § 830. An injunction has been allowed on behalf of an administrator to restrain the enforcement of a judgment against him, where, subsequent to the rendering of the judg- ment, he has discovered set-offs and credits to which his intestate was entitled, but of which the administrator was ignorant when the judgment was obtained. ^ And where, on the application of an administrator, an injunction has been allowed to restrain a judgment recovered against him in his capacity of administrator, it may be continued until such time as sufficient assets shall come into his hands to satisfy the judgment, or any part thereof, reserving to the judgment creditor the right to show such assets by sci.fa.^ § 831. An executor who has rendered himself personally liable at law, will not be protected in equity against a judg- ment at law for such liability. ^ Courts of equity will not, however, permit their own decrees to be interfered with, and to prevent this they will, under proper circumstances, exercise their undoubted jurisdiction by injunction for their own pro- tection.* Thus, a decree requiring an administrator to render ' Schanck v. Executors of Schanck, 3 Halat. Ch. 140. ' 'Wortman ®. Skinner, 1 Beas. 358. » Terril's Adm'rs. «. SouthalPs Ex'r., 3 Bibb, 458. * Haydon «. Goode, 4 Hen. & Munf. 460. ' Buries ». Popplewell, 10 Sim. 383. « Brooks v. Dent, 4 Md. Ch. 473 ; Buries v. Popplewell, 10 Sim. 883. CHAP. XVHI.J PAETIES. 489 an account, will be protected ty injunction; and such a decree being for the benefit of all the creditors, and in the nature of a judgment for them all, the relief will be allowed on the application of either party to restrain proceedings at law by any of the creditors against the administrator, instituted after the date of the decree, i YII. SnEETiEa. § "833. General rule and its applications. 833. Foundation for the rule. 834. Application of the rule to an accommodation indorser. 835. Limitation upon the rule. 830. Insolvency of principal debtor a ground of relief. 837. EfiFect of statute. 838. Special cases. § 832. The appropriate remedy for the protection of sure- ties, who have been discharged from their liabilities, is by injunction to restrain proceedings at law against them on account of the suretyship. ^ And it is a rule of general appli- cation, that wherever the relation of the surety to the debtor is changed without his consent, as by giving the principal debtor an extension of the time of payment, unknown to the surety, the latter is thereby discharged in equity, and may perpetually enjoin the creditors from proceeding at law against him for the collection of the debt.* Thus, a creditor who enters into an agreement with his principal debtor for forbearance to sue, thereby discharges the sureties of the debtor, and if he pro- ceeds to obtain a judgment against the sureties before they have been notified of the contract of forbearance, the judgment ' Brooks «. Dent, 4 Md. Ch. 473. And see Thompson v. Brown, 4 Johns^ Ch. 619. ' Samuell v. Howarth, 3 Meriv. 272 ; Allan v. Inman, 7 Jur. 433. » Clarke v. Henty, 3 T. & C. 187; Armistead v. Ward, 3 Pat. & H. 504; Rees V. Berrington, 3 Ves. Jr. 540 ; Boultbee v. Stubhs, 18 Ves. 20. And see King v. Baldwin, 3 Johns. Ch. 554. 490 rajTOTCTiONS. [chap. xvra. will be perpetually enjoined on the application of the sureties. ^ So if the creditor fraudulently aids the principal debtor in absconding, with intent thereby to hinder the surety in his remedy against th^ principal, the creditor will be enjoined from collecting his debt of the surety. ^ § 833. The rule as above stated is founded in the plainest principles of equity and reason. The surety has the right to insist on a strict performance of the contract to which he has become a party, and he can not be bound by apy obligation to which he has not given his consent.^ A binding and valid contract of forbearance, made by the creditor with his debtor, without the surety's consent, by depriving the surety of the right of immediate recourse against his principal debtor, takes away from him the protection to which he is entitled, and deprives him of the equity which he has the right to demand.* Nor does the fact that the contract for indulgence is clearly for the benefit of the surety vary the application of the rule, since the surety himself is the proper person to determine whether he is to be benefited thereby.^ § 834. Upon the principles above laid down, the protection of equity has been extended to the case of an accommodation mdorser standing in the position of a surety. Thus, where the makers of a promissory note, in a suit prosecuted to a 2ourt of final resort, are held not liable, on the ground of ille- gality of consideration, an indorser for accommodation will be allowed to enjoin a judgment obtained against him on the same note, on the ground that the principal being discharged, the surety should also be discharged, even though he has not used due diligence in defending against the action at law.* § 835. The rule is to be understood as limited to cases ■ Aimistead b. Ward, 3 Pat. & H. 504. ' Smith D. Hays, 1 Jones Eq. 321. • Samuell v. Howarth, 3 Meriv. 273 ; Bonser «. Cox, 13 L. J. Ch. 260 ; New- ton V. Chorlton, 10 Hare, 649. * Rees V. Berrington, 2 Ves. Jr. 540 ; Boultbee v. Stubbs, 18 Ves. 20 ; Now- ton B. Chorlton, 10 Hare, 649. ' 3 Story's Eq. g 883 ; Samuell v. Howarth, 3 Meriv. 373 ; Calvert v. London etc., 3 Keen, 638. » MilLer v. Gaskins, Sm. & M. Ch. 534. CHAP. XVni.] FAEHES. 491 where the agreement for forbearance is founded upon sufficient consideration, and is in its nature such an agreement as the debtor might enforce against the creditor, i And where a siirety has entered into a bond for the performance by his principal of two separate things, a subsequent variation from the terms of the contract as to one of those things, without the surety's consent, does not release him from his obligation as to the other. ^ Nor will the taking of additional security from the debtor operate as a discharge of the surety, unless taken in place of the original security. ^ § 836. Insolvency of the principal debtor, against whom a judgment has been obtained, and the fact of his having, after the rendition of the jiidgment, sold property which the pur- chaser is about to remove from the county, afford sufficient ground for enjoining the removal of the property at the suit of the surety, even though he has not yet been compelled to pay the judgment.* So sureties upon an official bond, upon showing that their principal will be in default, and that prop- erty mortgaged to them to secure them on account of their suretyship, is in danger of being removed, are entitled to the aid of equity to restrain the removal of the mortgaged property. ^ § 837. An injunction granted for the purpose of protecting a person from the sale of his property, to satisfy a debt for which he was simply a surety, will not be dissolved because of a statute conferring upon the court out of which the execution issued power to administer equitable relief, where a judgment is recovered both against principal and surety. The court wiL be governed in such a case by the principle that the conferring of equitable power upon courts of common law, neither impairs or abridges the jurisdiction of equity, but simply creates a case of concurrent jurisdiction.^ > Blake v. White, 1 Y. & 0. 430; Armistead v. "Ward, 3 Pat. & H. 504; Keath v. Key, 1 T. & J. 434. ' Harrison v. Seymour, 1 L. K. C. P. 519. » Eyre v. Everett, 3 Russ. 381 ; Kewton c Chorlton, 10 Hare, 649. * Anderson «. Walton, 35 Geo. 303. • Outlaw®. Reddick, 11 Geo. 669. « Irick V. Black, 3 C. E. Green, 189. 492 rajTiNCTioNS. [chap. xvm. § 838. A surety in a replevin bond is not entitled to an injunction to prevent tlie levy of an execution on Ms own property until that of his principal debtor shall have first been levied upon. The protection of the surety's property by compelling a leYj on that of the principal, is a proceeding unsanctioned either by principle or authority. ^ JSTor can a surety, by injunction, arrest proceedings at law against him by his co-surety for contribution, unless he tenders the principal and interest due the co-surety who has paid the debt. 2 VIII. Htjsbahd and Wwe. § 839. Injunction allowed to protect married woman in her separate property. 840. Relief not allowed where part of pm-chase money proceeds from hushand. 841. Writ allowed in aid of a bill to have wife's dehts declared a lien on her separate estate. 843. Special cases. 843. Injunction in aid of proceedings for divorce. 844. Mere apprehensions of desertion by husband will not authorize injunction. 845. Husbami will be restrained from encumbering property pending action for divorce. 846. Special cases. § 839. An injunction is the proper remedy for the protec- tion of a married woman in the enjoyment of her separate property, as against the husband or his creditors, and courts of equity will not hesitate to extend relief in such eases.* And where property is settled upon the wife before marriage, as her separate and individual propeirty, in trust for her sole use and benefit, she is entitled to the aid of equity to restrain her husband from interfering with such property.'* And a ' Kilpatrick v. Tunstall, 5 J. J. Marsh. 80, ' Craig v. Ankeney, 4 Gill, 335. ' Green v. Green, 5 Hare, 899, note b ; Johnson v. Vail, 1 McCart. 433. * Green e. Green, 5 Hare, 399, note b. CHAP. XVni.] PAETIES. 493 creditor of tlie husband will be enjoined from selling the proceeds of the wife's real estate in satisfaction of his debt against the hnsband, although such proceeds have been raised by the labor of the wife and the minor children of the husband. 1 And the fact that in such a case the husband has not been joined as a defendant in the bill, will not warrant a dissolution, but leave will be given to amend. ^ § 840. "While equity extends its protection to the separate estate of the wife, as against creditors of the husband, yet if the legal title to the property levied upon be in the husband, who has himself furnished a portion of the purchase money, the court will not interfere. Thus, where the wife has negotiated for the purchase of certain real estate, but the conveyance is made to the husband, he paying a portion of the purchase money, and she the remainder from her own earnings, no such trust results to the wife as entitles her to an injunction to restrain a judgment creditor of the husband from satisfying his judgment out of the land in question. ^ § 841. Though it is a general and well-established rule that courts of equity will not, at the suit of a general creditor, whose claim is not yet reduced to judgment, restrain a debtor from such disposition of his property as he may see fit to make, yet upon a bill filed against husband and wife to have certain debts contracted by the wife declared a lien upon her separate estate, defendants may be enjoined from conveying or encumbering such estate. The relief is granted in such a ease upon the ground that the wife's separate property is considered in equity as charged with all debts contracted by her with reference, express or implied, to payment out of such property, and if a bill will lie to make such debts a charge upon the wife's estate, equity may properly prevent the alienation or incumbering of the estate until the relief sought by the bill can be obtained.* § 842. Where by statute the wife's real estate is expressly • Johnson v. Vail, 1 McCart. 423. "Id. ' Skillman v. Skillman, 2 McCart. 479. * Oakley ®. Pound, 1 McCart. 178. 494. iNjTOiCTiONS. [chap. xvm. exempted from sale under execution by creditors of the husband, an injunction is the proper remedy for the protection of the property against such sale, and it is error to dismiss a bill filed by the wife for this purpose. ^ But a court of equity will not entertain jurisdiction to restrain the husband, upon the application of the wife, from obtaining possession of her separate estate, where he has not instituted proceedings in any court, either of law or of equity, to obtain control of the property. 2 'Nor is the husband, while acting in the capacity of administrator of the estate of his deceased wife, and having no other interest in the premises, entitled to an injunction to prevent the sale of real estate of the wife under a trust deed. 3 § 843. The aid of equity by injunction is most frequently sought, as between husband and wife, in eases of application for divorce from the bonds of matrimony, and it may be stated as a general rule, that, pending proceedings for divorce, a proper case of emergency being shown, the husband may be enjoined from interfering with the custody of the children or of property in possession of the wife.* So the husband will be enjoined from disposing of his property in such manner as to prevent the wife from obtaining alimony, or a separate maintenance, on a bill pending for that purpose.^ And upon a bill filed by the wife for divorce and alimony, the husband, being served with process and not appearing, may properly be enjoined from alienating his property in such way as to prevent her from obtaining alimony.^ § 844. Mere apprehension of abandonment by the husband, and of failure to support the wife, is not sufficient cause to warrant the interposition of equity in restraining him from disposing of his property, since injunctions are not usually ' Hunter's Appeal, 40 Pa. St. 194. ' Parsons v. Parsons, 9 N. H. 309. " Stringliam v. Brown, 7 Iowa, 33. * Wilson 11. Wilson, Wright, Ohio, 129; Edwards v. Edwards, lb. 308. 'Questel •». Questel, Wright, Ohio, 493; Johnston «. Johnston, lb. 454; Bascom v. Bascom, lb. 633. » Bicketts v. Ricketts, 4 Gill, 105. OECAP. XVin.J PAEIIES. 49£ allowed upon mere apprehensions of future wrong. ^ And where a preliminary injunction has been allowed in such a case, it will be dissolved on the coming in of the answer denying any intention on the part of the husband to abandon his wife.* § 845. An injunction obtained by the wife against the husband, pending proceedings for divorce, will restrain him from encumbering as well as from selling his property. * But the wife will not be allowed in such case to restrain the husband frorti using his property for the support of himself and his children, nor will he be enjoined from using the tools of his trade, or from carrying on his ordinary business.* And on granting a decree of divorce in favor of the wife, it is improper to perpetually enjoin the husband from selling his property to insure the payment of alimony. ^ § 846. Where an action at law is brought against the husband's executors, to recover the price of goods sold to the wife during the lifetime of the husband, and while she was living apart from her husband upon a separate maintenance, the bill alleging that this fact was known to the tradesman when the goods were sold, a court of equity will not interfere by injunction, after verdict, since the facts alleged as the ground for equitable relief would have been a proper defense at law. ^ And where, in a deed of separation between husband and wife, the husband condones all offenses then committed, and agrees not to institute proceedings for a divorce upon any ground of complaint existing prior to the deed, an injunction will not be allowed against a divorce suit afterward instituted by the husband, who alleges that he executed the deed on the wife's assurance that she had not committed adiiltery, which proved to be false, since such contract may be relied upon in defense of the action for divorce.' But where a fathci, who ' Anstutz V. Anshutz, 1 C. B. Green, 163. » Id. " Vanzant v. Vanzant, 33 111. 536. « Rose V. Rose, 11 Paige Ch. 166. ' Errissman ». Errissman, 35 111. 186. • Ferrars v. Ferrars, 1 Vern. 71. ' Brown v. Brown, 38 L. J. Ch. 153. 496 MjnNCfnoNS. [chap. xvm. has committed a criminal assault upon his infant daughter, executes an instrument giving to the wife the sole control of his children, he may be restrained from any proceedings to obtain the children from the wife's custody, and from inter- fering with her in their management and protection.^ And the interference of equity will be allowed, in a proper case, to prevent the father from removing his child out of the country and beyond the jurisdiction of the court. ^ So, too, in the exercise of its jurisdiction for the care of infants, equity may by injunction restrain an infant from contracting an improper marriage, upon a bill filed for the execution of the trusts of a settlement for the benefit of the infant. ^ ' Swift V. Swift, 34 Beav. 260. ' DoManneville o. DeManneville, 10 Ves. 52. ° Dawson i>. Tliompson, 13 L. T. N. S. 178. CHAP. XtX.] VIOLATION. 497 OHAPTEE XIX. OF THE VIOLATION OF INJUNCTIONS. I. Effect of the 'Wiirr and its Violation. II. What constitutes a Violation. III. Remedy for Violation. I. Eefect of the Wkit AMD US Violation. § 847. Injunction must be observed, however erroneous. 848. Reason for the rule. 849. Violation a contempt of court regardless of motive; motive may be considered in awarding punishment. 850. Defendant's guilt must be clearly established. 851. The fact that the breach was committed under advice of counsel no defense. 853. Injunction becomes operative from the granting of the order. 853. Defendant need not be officially apprised of writ; any actual notice sufficient to bind him. 854. Illustrations of the rule. 855. Complainant must comply with conditions on which writ is granted. § 847. The granting of injunctions being justly regarded as one of tlie highest prerogatives of courts of equity, the most exact and implicit obedience is required from those against whom the mandate of the court is directed. "With whatever irregularities the proceedings may be affected, or however erroneously the court may have acted in granting the injunction in the first instance, it must be implicitly observed so long as it remains in existence, and the fact that it has been obtained erroneously affords no justification or excuse for its 32 498 INJTXNCTIONS. [chap. XTX. violation before it lias been properly dissolved. ^ And tlie party against wliom an injunction issues will not be allowed to violate it on tlie ground of want of equity in the bill, since he is not at liberty to speculate upon the intention or decision of the court, or upon the equity of the bill, or to question the authority of the court to grant relief upon the facts stated, except upon application to dissolve the injunction. ^ § 848. The reason for the rule as here laid down, is found in the necessity of preserving the respect and obedience due to the mandates of equity, and of preventing the disastrous confusion which would inevitably result from allowing parties against whom injunctions were issued to be themselves the judges of the propriety of the relief, or the regularity of the proceedings. From the nature of the case, the tribunal granting the writ must itself be the arbiter, and its mandates are to be strictly observed until properly revoked. And if the court granting the relief had jurisdiction of the subject matter, the fact that its prerogative was erroneously exercised, does not render the injunction void, but only voidable, and until it is set aside or revoked, it is entitled to implicit obedi- ence. ^ And the fact that the injunction was too broad in its terms, and covered property over which it should not have been extended, affords no excuse for its violation.* § 849. The violation of an injunction constitutes a con- tempt of the court from which it issued, and will be punished accordingly.^ Nor does the question of the motive or intent with which the writ was disobeyed alter or vary the responsi- ' Moat ®. Holbein, 3 Edw. Oh. 188 ; Woodward v. Earl of Lincoln, 3 Swans. 636 ; People v. Sturtevant, 9 N. T. 363 ; Sullivan «. Judah, 4 Paige, 444; Eichards «. West, 3 Gtreen Ch. 456. And see Eennings «. Humphrey, 4BeaT. 1; Blake v. Blake, 7 Beav. 514; Cliuck r>. Cremer, 2 Ph. 113; Brie etc. Co. V. Ramsey, 45 N. Y. 637. ' Richards v. West, 3 Green Ch. 456 ; Sullivan v. Judah, 4 Paige, 444. 3 People v. Sturtevant, 9 N. Y. 363. * Richards «. West, 3 Green Oh. 456. ' People ii. Sturtevant, 9 N. Y. 363; Richards «. West, 2 Green Ch. 456; People V. Spalding, 3 Paige, 836; Commercial etc. «. Waters, 10 Miss. 559; Monroe v. Harkness, 1 Cranch 0. C. 157; Same ». Bradley, lb. 158; Mead «. Norris, 31 Wis. 310. CHAP. XrX.] VIOLATIOH. 499 Mlity for tlie violation; on the contrary, it may be stated as a general rule, tliat where the writ has been duly served on defendants, they are liable for its violation, in whatever capacity or from whatever motive they may have acted, i But while, as we have seen in the preceding seetions, the fact thai an injunction was erroneously issued in the first instance affords no warrant or excuse to a defendant for a breach of its terms, yet such fact may properly be taken into consideration in awarding punishment for the breach. ^ Thus, where an injunction, irregularly and improperly issued in the first instance, has been violated by a defendant and his attorneys, the court may, on account of such irregularity, refuse to commit them for the breach, though requiring them to pay the costs thereby incurred, as well as the costs of the motion for coromital.^ And it has even been held, where the injunc- tion was broader in its terms than was contemplated by the bill, that on motion for an attachment for a violation, the defendant should not be punished for disobeying so much of the writ as went further than the bill.* § 850. Where proceedings are instituted to punish a defend- ant for breach of an injunction, the fact of his guilt must bo clearly and explicitly established to the satisfaction of the court. 5 But, while the injunction must be implicitly obeyed, it is the spirit and not the strict letter of the mandate to whicli obedience is exacted, and complainant failing to prove a viola- tion of this to the satisfaction of the court, the rule for an attachment for contempt will be discharged." § 851. So far as regards the rights of persons affected by an injunction, the fact that defendant has violated the mandate of the court under the advice of counsel, constitutes no suffi- cient ground of defense in his favor. "We have already seen that the motive with which the breach is committed consti ' Quackenbush v. Vanriper, 3 Green Ch. 350. ' Sullivan v. Judah, 4 Paige, 444. » Partington v. Booth, 3 Meriv. 148. ' Freeman •». Deming, 4 Edw. Ch. 598. ' Magennis «. Parkhurst, 3 Green Ch. 433. •Id. 600 INJUNCTIONS. [chap. XIX. tutes no excuse for the wrongful act/ and equity will protect persons affected by the writ from any violation of its terms, even though committed under the sanction and advice of counsel. 2 Thus, where defendant has committed a breach of the injunction, he can not relieve himself from the respon- sibility for his conduct by the fact that it was committed under the advice of counsel that the service of the writ was defective, the officer not having Exhibited the original writ, but only a copy thereof.^ So where defendant, who has been served in person with a written notice that an order for an injunction against him lias been made, proceeds with the com- mission of the acts enjoined, claiming to act under the advice of counsel that such notice was ineffectual to bind him, he is regarded as violating the injunction.* It is to be observed, however, that while the fact of defendant having committed the breach under the advice of counsel that he might safely disregard the writ, affords no justification for his conduct, yet it may properly be taken into account in determining the degree of punishment to be inflicted for the breach, and may thus palliate, though it can not justify the violation. ^ § 852. In considering the question of a defendant's liability for a breach of injunction, it is to be borne in mind that the injunction becomes operative from the time of the order being made, and not from the date of the writ itself, or from the time of its being drawn up.* The mandate of the court being effectual upon all parties having notice thereof, from the time it is given, to fix defendant's liability for a violation it is only necessary to show that he was actually apprised of the exist- ence of the order at the time of committing the acts constitut- ing the violation. Thus, where an injunction is granted to restrain the commission of waste, and before the wi'it actually ' Quackenbusli v. Vanriper, 3 Green Oh. 350. , " Mead v. Norris, 31 "Wis. 310 ; Hawley v. Bennett, 4 Paige, 163 ; Lansing B. Easton, 7 Paige, 364. 9 Mead «. Norris, 31 Wis. 310. * Kimpton «. Eve, 3 Ves. & B. 349. " Erie etc. Co. v. Kamsey, 45 N. T. 637. " McNeil V. Garratt, 1 Or. & Ph. 98; James v. Downes, 18 Ves. 528. And see Hearn s.Tennant, 14 Ves. 136. OHAP. XIX.] VIOLATION. 501 issues or the order is. drawn tip, defendant is notified of the order, and its purport and effect are verbally explained to him, the cutting of timber after such notice constitutes a breach of the injunction.! So where an injunction is ordered against the commission of waste and the sale of crops, and defendant is served with written notice thereof, but proceeds to sell in disregard of the notice, though admitting his belief that the order was made, he is guilty of a violation of the mandate of the court, even though he claims to have acted under the I id vice of counsel.* § 853. Any means of information whereby notice of the order is brought to the knowledge of the parties enjoined, would seem sufficient to meet the requirements of the rule above laid down. And the courts have uniformly held that it is not requsite that a defendant, against whom an injunction has issued, should have been officially apprised of its existence, or served with process, to hold him liable for contempt in ' Vansandau v. Rose, 2 Jac. & W. 264 And see Goocli «. Marshall, 8 "W. R. 410. ' Kimpton •». Eve, 3 Ves. & B. 349. This was an injunction against the commission of waste and the sale of straw and standing crops, defendant having proceeded to a sale after personal service upon him of a written notice that an order for the writ was granted. Defendant, hy his affidavit, admitted his belief that the order had been made, but claimed to have acted by the advice of his solicitor, to the effect that a mere notice of the order had no binding force. Eldon, Lord Chancellor, observes ; * * * " It is true that before Lord Hardwicke's time, who first made the excep- tion of the case of a party actually present in court, hearing the order made, actual service of the injunction was required. Lord Hardwicke, I suppose, felt the enormous mischief of permitting a man, hearing an order pronounced restraining him from doing an act, to walk out of court and immediately do that act, before service of the injunction. But if that extension of the practice was right, the court could not stop short, refusing to apply the principle in other cases affording the same necessity for its application. I have heard some of my predecessors in this place treat as a great abuse of justice and want of consistency the refusal to apply that practice, which is applied to a person present in court and hearing the order, to a man standing outside of the court, and informed by some one who heard it that the order was pronounced." * * "In this qase, the party admitting that he believed the order was made, the principle is the same as if his belief was formed from information short of actual sei-vice." 602 mjuBonoNS. [chap. xlx. committiEg a breach of tlie injunction. If defendant is informed of the existence of the order, though not yet serYcd with process, it is operative upon him, and he will not be allowed to disregard or violate it. It is enough to show that he has had actual notice of the existence of the writ, or of the order of the court that it should issue. ^ And one who has received notice of the order for an injunction, may be guilty of a breach of the mandate of the court and may be punished for contempt, even though the writ has not yet issued.^ Other- wise the opportunity would be afforded of committing with impunity violations of the injunction between the time of ordering the writ and the time of its issuing, and thus the very acts would be permitted which it is the object of the injunction to prevent.* § 854. The rule as to defendant's liability for breach of an injunction upon notice of its existence, or of the order of the court, holds good even though there has been great negligence in serving the writ. And even where service has been delayed to such an extent as to constitute ground for a dissolution of the writ, he who violates it may still be attached for con- tempt.* So persons who remain in court during the argu- ment of a motion for an injunction, can not, by leaving just before the order for the writ is made, evade the consequences of a breach of the injunction, they having known that the writ was actually issued; and they will be punished for contempt for its violation, though they were not present when the order was actually pronounced.^ And where one has not been officially apprised of the issuing of an injunction,^ but has been informed of it by one of the parties to the suit, he wiU nevertheless be guilty of a contempt should he violate it.% § 855! The question of whether a breach of an injunction ' Hull v. Thomas, 3 Edw. Ch. 336; Howe i). Willard, 40 Vt. 654; Fams- worth. V. Fowler, 1 Swan, 1; Skip v. Harwood, 3 Atk. 564; Hearn «. Tennant, 14 Ves. 136 ; Mclsreil «. Garratt, 1 Cr. & Ph. 98. " McNeil 11. Garratt, 1 Cr. & Ph. 98. 'Id. ' Howe «. Willard, 40 Vt. 654. "■ Hearn v. Tennant, 14 Ves. 136. ' Hull V. Thomas, 3 Edw. Ch. 236. CHAP. SIX..] VIOLATION. 503 has actually been comniitted, has been held to be dependent upon whether complainant in the action has complied with the terms upon which the relief was ordered. Thus, where an order has been obtained granting an injunction in restraint of a sale under execution, upon the usual terms of giving a bond to defendant for the payment of damages incurred, it is held that proceedings under the execution are not stayed until the conditions are complied with.^ And in such ease it is held to be no contempt of court to proceed with a sale under the execution, notwithstanding the chancellor's order was shown to the plaintiff in execution, and to the sheriff. ^ II. What coNsmuTKS a Yiolation. § 856. Alleged violation must be injurious to rights of complainant in tlie injunction suit. 857. Regard must be bad to terms of the writ. 858. Violation of injunctions to judgments at law. 859. Writ does not affect antecedent rights of person not a party to the suit. 860. Assignee of chose in action; trust property; joint plaintiffs. 861. Breach need not be committed in person; one who consents to violation is guilty. 863. Persons not named in writ not usually liable for its violation. 86S. Members and agents of corporation liable for breach where they were apprised of writ. 864. Defective service no excuse for violation. 865. Injunction against disturbance of easement. 866. Regard must be had to objects of writ; mere intent to violate not punishable. § 856. It is frequently a matter of difficulty to decide what constitutes such a breach of an injunction as to warrant proceedings against a defendant for contempt. It has been laid down as a general rule, subject, however, to some exceptions, that the offense complained of as a violation must ' Clarke v. Hoomes's Ex'rs., 3 Hen. & M. 23. «Id. 604 INJITNOTIONS. [chap. XIX. be injurious to tlie rights of tlie complainant in tlie action. ^^ And where, after service of an injunction upon defendant, in a creditor's suit, he proceeds to judgment in an action previously begun against a third person, such conduct is not regarded as a breach of the mandate of the court, since it can work no injury to complainants in the injunction suit, and may benefit them.® So, too, where an injunction has been granted on a creditor's bill, the fact of the debtor afterward bringing suit against a third person for a tort, the tort consisting in taking property of the debtor, under execution, which was exempt by law, constitutes no violation of the injunction.^ § 857. In determining whether an actual breach has been perpetrated, such as to warrant the court in committing for contempt, regard must be had to the terms of the injunction itself. And where the writ does not specifically restrain defendant from the commission of any definite act, but enjoins him in general terms from permitting certain injurious resylts to be produced by a particular cause, it must satis- factorily appear that the injurious result was actually produced by the given cause.* But where the mandate of the court has been violated in spirit as well as in letter, the court wiU not permit the general terms of the writ to be controlled or restricted by reference to the particular nature of the grievance. ^ § 868. "Where an injunction has been granted to stay proceedings in an action at law, the mere delivery of a declaration has been deemed a violation of the writ.^ And the service of a trial notice in the action enjoined,'' or a motion for a change of venue, ^ is a breach of the mandate of the court. So where an injunction has been obtained against ' Hudson V. Plets, 11 Paige, 180. And see Parker •b. "Wakeman, 10 Paige, 485. ^ Parker v. Wakeman, 10 Paige, 485. ' Hudson B. Plets, 11 Paige, 180. * Dawson «. Paver, 5 Hare, 415. " Attorney General i). Great Northern etc., 4 DeGex & Sm. 75. , « Mills «. Cobby, 1 Meriv. 3. ■" Clark 4). "Wood, 3 Halst. Cli. 458; Bird v. Brancker, 3 Sm. & St. 186. ^ Pariente v. Bensusan, 13 Sim. 522. CHAP. XIX.J VIOLATION. 505 execution under a judgment, the taking of any steps toward execution beyond the completion of the judgment, is a viola- tion of the injunction. 1 So, too, it has been held to be a violation of an injunction against proceedings at law to place in the hands of the sheriif an attachment for non-payment , of costs, even though the costs in question were actually taxed before the writ was allowed.^ And where, before the issuing of an injunction against proceedings at law, legal process had been placed in the hands of the sheriif, and the plaintiff in the action at law did not stop the process on being applied to by the sheriff for further instructions, his neglect to countermand the writ is held a contempt. ^ § 859. While it would seem that the agents of one against whom an injunction is awarded, having knowledge of the order, may be held liable for acts committed in violation of its terms,* yet one who was not a pai-ty to the proceedings, and who has acquired no rights from any of the parties, pendente lite, is not guilty of a breach of the injunction by exercising a right which belonged to him before the suit.^ But a breach amounting to a contempt may be committed even by aiding one who acts in an official capacity and under authority of law. Thus, where an injunction is granted to quiet possession, defendant who assists a justice of the peace in making restitution upon a forcible entry, thereby comniits a breach.^ § 860. The assignee of a chose in action who, after the dissolution of an injunction against himself, institutes proceed- ings at law relative to the matter concerning which he Was enjoined, is not guilty of a violation of the injunction, although it has not been dissolved as against his assignor.'' ' Bullen «. Ovey, 16 "Ves. 141; Mills ■». Cobby, 1 Meriv. 3; Franklyns. Thomas, 3 Meriv. 325. " Partington v. Booth, 3 Meriv. l48. ' Woodley «. Boddington, 9 Sim. 314. * Wellesley ®. Mornington, 11 Beav. 181. ' Bootle V. Stanley, 3 Eq. Ca. Ab. 528. « Woodward v. Earl of Lincoln, 3 Swanst. 626. ' Imperial etc. «. Clarke, Younge, 584. 506 iNJUKCTiONS. [chap, zdl. Nor is the institution of an action at law by trusteeb to recover possession of trust property, a breach of an injunction which has been granted to prevent their selling such property, since the assertion of the legal title by the trustees may be necessary for the protection of the rights of all parties in interest, i But where three plaintiffs at law have been enjoined from proceeding with an action, and a dissolution is afterward allowed as against two of the plaintiffs, it is held to be a violation for the three afterward to proceed with the action; though if the injunction has been dissolved generally, and not merely as against the two, it is not a violation if the two should carry on the proceedings in the name of the three. ^ § 861. To render one liable for a violation of an injunction, it is not necessary that he should have actually committed the breach in person, and one who is present, aiding and abetting in the commission of the act, or who permits it to be done in his presence, and without remonstrance, is himself guilty of an actual breach of the injunction, and will be punished accordingly. 5 Thus, an attaching creditor who has been restrained from selling the property attached, violates the writ if he aUows the attaching officer to sell in his presence without remonstrance, the officer being regarded as his agent for the purposes of the sale.* And one who quietly stands by and permits an injunction to be violated, is guilty of a contempt, no matter how unreasonable the provisions of the writ may have been.^ If, however, complainant, at whose instance an injunction has been granted, himself consents to its violation, he is estopped from afterward having defendant punished for such violation.* § 862. The obligations of an injunction will not usually be extended to persons who are not named in the writ, and they • Nichols ». Campbell, 10 Grat. 560. " Money «. Jordan, 13 Beav. 239. ' St. John's College v. Carter, 4 Myl. & Cr. 497 ; Blood v. Martin, 21 Geo. 127. < Blood B. Martin, 31 Geo. 137. » Stimpson «. Putnam, 41 Vt. 238. « Howard «. Durand, 36 Geo. 346. CHAP. XEE.J VIOLAHON. 507 will not be liable for a breacb of a mandate whicb is not directed to tbem.^ Thns, where the writ is simply directed to a defendant, without including his agents or servants, an agent will not be punished for a breach. ^ Nor will a person be punished for contempt because of the violation of an injunc- tion by his servants, he himself being free from all blame in person. 3 But defendant may, in such case, be held liable for the costs of the proceedings to commit for the breach.* And where defendant's attorney has been enjoined from proceeding at law, it has been held a breach of the injunction for the defendant himself to proceed. ^ But where the writ restrains a person and his agents or servants, his tenants are not regarded as included in the prohibition.' § 863. Since an injunction granted against a corporation is binding upon all persons acting for or in behalf of the corpo- ration who are apprised of the writ, it follows that all members of the corporation upon whom service is had are liable for a breach of the injunction. And the passage of a resolution by the common council of a city, granting a right which they are forbidden by injunction to grant, is a violation of the writ, although the terms of the resolution are not accepted by the person to whom the right is granted.'' So the chief engineer of a steamboat, owned by a foreign corporation and running between two ports of diiferent states, is liable for the violation of an injunction restraining the use of certain machinery upon the boat; and it is no excuse for him to say, he being a defendant in the injunction suit, that he was a mere agent of the corporation. ^ § 864. A defect in the service of the writ affords no excuse for its violation, and one may be guilty of contempt ia dis- obeying an injunction, notwithstanding defective service by ' Iveson V. Harris, 7 Ves. 356 ; "Wellesley v. Mornington, 11 Beav. 181. " Wellesley «. Mornington, 11 Beav. 181. ' Eantzen «. Kothscliild, 14 "W. R. 96. •Id. • Sedgwick «. Redman, Gary, 44. « Hodson V. Coppard, 39 Beav. 4. 'People V. Sturtevant, 9 N. Y. 263. ' Sickels 11. Borden, 4 Blatcli. 14. 508 INJUNCTIONS. [chap. xix. the officer to whom it was entrusted. It is sufficient for the court to know that the person enjoined had actual knowledge of its order. 1 And an officer who, with due notice of an injunction against the sale of certain property under execu- tion, nevertheless proceeds with the sale, becomes a trespasser db initio, even though the property may have been levied upon before the injunction was granted. ^ § 865. Nothing will be deemed a violation of an injunc- tion forbidding the disturbance of a particular right of way, which does not interfere with the free exercise of the right or easement. Thus, where there are several distinct but inti- mately connected rights, such as a right of way and a right of soil, an injunction haviflg been granted for the preservation of one of them, a fair exercise of the other right will not be deemed a violation of the writ as to the first, if it leaves as large a scope for its exercise as before.^ § 866. In deciding whether there has been an actual breach of an injunction, it is important to observe the objects for which the relief was granted, as well as the circumstances attending it.* And it is to be observed that the violation of the spirit of an injunction, even though its strict letter may not have been disregarded, is a breach of the mandate of the court. ^ Thus, where an injunction has been granted restraining a defend- ant and his servants and agents from obstructing and impeding the passage of canal boats, the bringing of fifteen actions of trespass against the canal company on account of the passage of that number of barges along that part of the canal flowing over the land in controversy, is a violation of the spirit of the injunction, and will be restrained. ^ • Mead i>. Norris, 21 Wis. 310. ' Turner ®. Gatewood, 8 B. Mon. 613. " Bosley d. Susquehanna etc., 3 Bland. C3.' * Loder v. Arnold, 15 Jur. 117. ' Grand Junction etc. v. Dimes, 17 Sim. 38. 'Id. 0HA1\ XIX.] VIOLATION. 509 JII. Remedy foe Violation. § 867. Attachment for contempt; considerations to be observed in apply- ing remedy. 868. Conduct and motives of parties taken into account ; laches ; acqui- escence.' 869. Complainant's laches. 870. Procedure in United States courts for breach of injunction. 871. Proof required; -what defendant may show. 873. Parties enjoined in state courts violate writ by proceeding in United States courts. 873. Attachment will not lie for violation of injunction improperly issued ; proceedings on behalf of the people. 874 Remedy against plaintiff in execution ; infringement of statutory franchise. 875. Defendant in contempt for breach not usually allowed a hearing on motion to dissolve. 876. Practice on motion for attachment; costs. 877. Proceedings not reviewed on error, but on appeal; no objection that proceedings are against one of several defendants. ; § 867. The usual remedy for breacli of injunction is by proceedings against the offending party for an attachment for contempt of court. ^ And in taking steps to punish such con- tempt, the court will not inquire into the merits of the cause in which the writ was issued, the only question for determi- nation being whether the mandate of the court has been violated. 8 An order of commitment for breach of an injunc- tion being strioUsdmi jwris, it will not be granted except upon a clear and satisfactory showing of an actual violation.^ The proceedings are quasi criminal in their nature, and may, it would seem, be brought on behalf of the people, though not necessarily conducted by counsel for the government.* And a ' Monroe «. Harkness, 1 Cranch C. C. 157 ; Monroe t. Bradley, lb. 158. ' People n. Spalding, 3 Paige, 336. ' Mann c. Stephens, 15 Sim. 877 ; Grand Junction etc. ■». Dimes, 17 Sim. 38 ; Worcester v. Truman, 1 McLean, 483. ■* "Worcester «. Truman, 1 McLean, 483; Crook e. The People, 16 111. 534, and cases cited. 610 INJTINCTIONS. [chap. XIX. person applying to a court of equity for tlie punisliment of a party guilty of a breach of injunction, must show that he ha? some interest in the subject matter of the controversy which gave rise to the injunction. * § 868. The conduct of the party obtaining the injunction, as well as the motive of defendant in violating it, may properly be taken into account in determining . defendant's liability for the breach.^ And where an injunction is granted before pro- ceedings at law, staying all proceedings, and defendant in the injunction suit afterward institutes an action in ejectment, to which complainant pleads, and suffers two months to elapse before taking any steps toward punishing the breach, the court will refuse to punish for contempt.* And where the person obtaining the writ misrepresents the action of the court to the public, and defendant, in endeavoring to correct such misrepresentation, commits a technical violation of the injunction, proceedings against him for contempt by the complainant will not be entertained.* But to deprive a party obtaining the writ of the right to move for a committal for its breach, on the ground of his acquiescence therein, a strong showing of acquiescence must be made out. Thus, where a defendant seeks to evade his liability for breach of an injunction restraining him from the use of complainant's trade mark, upon the ground of acquiescence, he must show such a degree of acquiescence as would suiRce to create a new right in himself ' Hawley v. Bennett, 4 Paige, 163. » Mills i>. Cobby, 1 Meriv. 3; Barfleld v. Nicholson, 3 L. J. Ch. 90. " Mills v. Cobby, 1 Meriv. 3. * Barfleld v. Nicholson, 2 L. J. Ch. 90. ' Rodgers «. Nowill, 3 DeGex, M. & G. 614. The degree of acquiescence required to justify defendant is stated by Lord Justice Turner, as follows : "Then on the question of acquiescence, I think that in a case of this description, where there has been an injunction granted by this court, there must, in order to deprive the party who has obtained the injunction of the right to move for committal upon the breach of it, be a case made out almost amounting to such a license to the party enjoined to do the act enjoined against, as would entitle him to maintain a bill against others for doing that act. The party enjoined must, I think, show such acquies- cence as would be sufficient to create a new right in him." OHAP. XIX.] VIOLATION. 511 § 869. Wliile, as we have abeady seen, the doctrine is virell estaUished, that to render a defendant liable for violating an injunction, it is only necessary that he should have been in any manner apprised of its existence, though not actually served with the writ,i yet complainant's laches in obtaining service may be taken into account upon a motion to commit for a breach. Thus, where complainant has suffered a period of four months to elapse, after the granting of the order, before getting it drawn up and served, although defendant may be in contempt, having been present in court on the hearing of the motion for the injunction, yet a motion to commit, under such circumstances, will be refused with costs. ^ § 870. The proper method of procedure for the punishment of a breach of injunction, in the courts of the United States, is by motion that the defendant stand committed for the viola- tion, and he must be served with due notice of this motion. The object of the proceeding is the enforcement of obedience to the mandates of the court, by punishing any intentionaJ violation of its process. The mode of relief being summarji and rigorous, he who invokes the aid of equity for the punish- ment of a violation of injunction is required to show the allowance of the writ upon the conditions imposed by the ' See § 853, ante. ' James v. Downes, 18 Ves. 532. " A party can not," observes Lord Eldon, " be committed for tbe breach of an injunction, that express species of contempt, unless there is an injunction. On the other hand, if he was present when the order was made, the court will not permit him to elude its justice by doing that, before the injunction is sealed, which, if it was actually sealed, would be a contempt ; but there is no instance, previous to the case of Hearn v. Tennant (14 Ves. 136), that the court ventured to consider the act of contempt, unless the party, being present in court, heard the order for an injunction made. My opinion on that occasion was, and still is, that if the party was in court while the motion was pro- ceeding, he should not by turning his back before the court pronounced the order 'let the injunction go,' escape the process, considering it a mere contrivance; but the court can never intend that the plaintiff, having obtained the order granting the injunction, is to lie by four months as if it had not been granted. The court, interposing to assist the plaintiff and prevent his losing the benefit of the process, while he is actually pvtrsuing it, can not consider him entitled under the order for three or four months together. Therefore dismiss this motion with costs." 612 iNjiracrnoNS. [chap. xix. court, that it has been duly served, and that defendant has been notified of the time and place of the motion.^ But the courts of the United States can not punish for violation of an injunction issued i>rom a state court, even though the cause has been removed, under the act of congress authorizing such removal, from the state to the United States courts, since such removal works a dissolution of the injunction, vpso facto. '^ § 871. It is incumbent upon complainant, in moving an attachment against a defendant for contempt of court in dis- obeying an injunction, to state in the proofs upon which the application is founded the specific acts of omission, or of com- mission, which constitute the alleged contempt. ^ And in proceedings for contempt, proofs are properly admissible to contradict the answers of the defendant to the interrogatories propounded to him.* And it is competent for a defendant, charged ,with a breach, as in the case of an injunction against the infringement of a patent, to show his compliance with the writ while it remained in force, and that it carried on its face the period of its duration, which having expired, he could not be guilty of a breach.^ ' Worcester «. Truman, 1 McLean, 483. The nature of the proceedings for the punishment of a violation of injunction, and tlie conditions requi- site to the exercise of this summary jurisdiction of courts of equity in enforcing obedience to their mandates, are well laid down by McLean, J., in this case, as follows: "This, although in the nature of a criminal pro- ceeding, is not in fact strictly of that character. It is instituted and carried on by the counsel for the plaintiff, and not necessarily by the attor- ney for the government. The object of the proceeding is to enforce obedi- ence to the process of the court, by punishing an intentional disregard of it. The' mode is summary and rigorous, and the party who thus invokes the aid of the court should bring himself strictly within the rule which entitles him to the redress sought, and subjects the defendant to the pun- ishment which must follow. He must show the allowance of the injunc- tion, that it has been issued on the terms specified and within the limits Imposed, that it has been duly served, and that notice has been given to the defendant of the time and place of the motion 'that he stand com- mitted for a breach of the injunction.' " ' McLeod e. Duncan, 5 McLean, 343. ' Parkhurst «. Kinsman, 2 Blatch. 76. ^ Crook B. The People, 16 111. 534. ' Daw ». Eley, L. K. 3 Eq. 496. CHAP. XIX. J VIOLAnON. 513 § 872. "WLere parties having a right of action, either in the state or in the United States courts, voluntarily bring their action in the former, and are there enjoined from further pro- ceedings until certain assets shall be marshaled, it is a con- tempt of court for them to bring their action in the United States courts, pending such injunction, and the attorneys may be punished for contempt in thus disregarding the mandate of the state tribunal. * § 873! We have already seen that the fact of an injunction having been erroneously granted in the first instance, affords no justification or excuse for its violation.^ It may, however, affect the question of punishment, and may be taken into con- sideration by the court in determining whether a defendant shall be attached for contempt. And it has been held that after the dissolution of an injunction erroneously or improperly granted, an attachment for its violation will not lie.' But where proceedings are instituted on behalf of the people for contempt in the violation of an injunction, they may, if begun before, be prosecuted after the injunction is dissolved.* And in such proceedings proof may be taken to contradict the answers of the party to the interrogatories propounded to him. 5 § 874. The proper remedy against a plaintiff in execution who proceeds with a levy, notwithstanding he has been enjoined from so doing, is by attachment, and not by sv/per- sedeas.^ And where an injunction has been issued to prevent the infringement of a statutory franchise, an attachment will issue for contempt in violating the writ.'' § 875. One who is in contempt for a violation of an injunc- tion will not usually be allowed a hearing upon a motion to dissolve, though if the nature and extent of the punishment ' Hines v. Bawson, 40 Geo. 356. " Moat 1). Holbein, 2 Edw. Ch. 188 ; People b. Sturtevant, 9 N. T. 2G3 ; Sullivan v. Judah, 4 Paige, 444; Richards «. West, 2 Green Cli. 45C. 3 Moat «. Holbein, 2 Edw. Cli. 188. « Crook D. The People, 16 111. 534. •Id. « Commercial Bank «. "Waters, 10 Sm. & Mar. Miss. 559. • ■■ In re Vanderbilt, 4 Johns. Ch. 57. 33 614 mjimcrnojss. [chap. xix. to be inflicted depend upon the determination of the question whether the injunction shall be continued, a hearing may be had on the motion to dissolve, i But for the purposes of a motion to attach for contempt in violating an injunction, it must clearly appear that defendant was apprised of the order of the court; and where there are doubts as to the qxiestion of service of the writ, an attachment for a breach thereof will be denied. 2 § 876. Upon a motion for an attachment for a breach of an injunction restraining the use of a patent right, alfidavits will not be admitted to show that complainant was not the original inventor. The question in such a case is not as to the merits of the writ itself, but whether it has actually been disobeyed.^ And if it be made to appear that the injunction has really been viola-ted, but defendant is protected from attachment by a defective service of the writ, he will not be allowed costs on refusal of the motion to attach.* § 877. "Wliere proceedings have been instituted for the punishment of a breach of injunction, an order of court adjudg- ing defendants guilty of contempt in violating the writ can not be reviewed on vrrit of error, but only upon appeal.' And the breach of an injunction, being in the nature of a tort, it constitutes no valid objection to proceedings for a com- mittal that complainant has moved against but one of the defendants.' • Endicott «. Mathis, 1 Stockt. 110. ' Whipple «. Hutchinson, 4 Blatch. 190. 'Id. *U. ' Shannon ». State of Wisconsin, 18 Wis. 604. ' Newman ii. Ring, 10 Jur. 463. CHAP. XX..] DiasoLunojii. 316 CHAPTEE XX. OF THE DISSOLUTION OF INTERLOCUTORY INJUNCTIONS- I. General Ghounds of a Dissolution ahb its Effect. II. Dissolution upon the coming in of tub Answer. III. Dissolution of Injunctions against several joint Defekd- AJSTTS. IV. Dissolution of Injunctions against Proceedings at Law. V. Dissolution of Injunctions, affecting the Title to Realty. VI. Special Grounds of Dissolution. I. General Geotinds of a Dissoltition and rrs Effect. § 878. General rule as to dissolution. 879. Motion to dissolve, when entertained. 880. When dissolution allowed before answer. 881. Burden of proof; effect of answer. 883. Presumption against defendant. 883. Denials in the answer ; effect of answer. 884. Vagueness of writ ; failure of defendant to answer. 885. Effect of deception or misrepresentation in obtaining the write 886. Direct and positive denial required in the answer. 887. Exception to the rule. 888. Effect of a dismissal of the hill upon the injunction. 889. Effect of a dissolution of the injunction upon the hill. 890. Effect of dissolution of injunction granted by an inferior courc. 891. Right of appeal from an order of dissolution; conflict of authority. 893. Test to be applied. 893. Effect of appeal ffom decree dissolving injunction. 894. Defendant's laches a bar to obtaining a dissolution. 895. Effect of new matter in the answer. § 878. ^ marked feature of interlocutory injunctions, as distinguished from those which are final or perpetual, is that the former are liable to be dissolved upon sufiicient cause 516 rNJTOfCTioNS. [chap. XX. shown at any stage of the proceedings, after the coming in of the answer. And in general it may be said to rest in the sound discretion of the eonrt to dissolve an interlocutory injunction upon the coming in of the answer denying the equities of the biU, or to continue it until a final hearing on the merits, if such course shall seem best calculated to sub- serve the ends of justice and to protect the rights of all parties in interest.! ^^^ in granting a dissolution the court may, in its discretion, impose such terms as may be necessary to secure substantial justice.^ § 879. "While the rule has been broadly laid down that an interlocutory or preliminary injunction may be dissolved at any stage of the cause, either before or after answer filed, or after demurrer to the bill,^ the better doctrine seems to be that a motion to dissolve will not be entertained until after the coming in of the answer.* Nor should a motion to dis- solve be entertained pending a general demurrer to the bill, since the motion involves the same questions of equity that must arise upon the demurrer, and is an attempt to obtain, by the summary action of the court, a decision as to the equity of the case, which should be determined upon demurrer. ^ But in the ease of a bill of discovery, which also prays an injunction against a judgment at law, if the bill contains no allegations sufficient to entitle complainant to a discovery, and no ground upon which the injunction can be sustained, a dis- solution may be had upon motion, without the answer of the party from whom the discovery is sought. ^ Though a motion to dissolve such an injunction for want of equity in the bill, will not be allowed before answer filed, where the bill charges ' Chetwood v. Brittan, 1 Green Ch. 438 ; Pirmstone ®. DeCamp, 2 C. E. Green, 309 ; Attorney General v. Oakland etc., "Walk. Mich. 90 ; Shellman V. Scott, Charlt. R. M. 380; Holt «. Bank of Augusta, 9 Geo. 553; Dent v. Summerlin, 12 Geo. 5. "'Cook V. Jenkins, 35 Geo. 113. ' Jones V. Commercial Bank, 5 How. Miss. 43. And see Minturn «. Seyr mour, 4 Jokns. Ch. 173. ^ ' Eentfroe v. Dickinson, 1 Overt. 196 ; Taylors. Morgan, 2 Mart. 0. S. 77. » Ransom v. Shuler, 8 Ired. Eq. 304. « Zoll V. Campbell, 8 West Va. 236. OHAP. XX. J DISSOLUTION. 517 that the obligations sued on at law were obtained without con- sideration and by fraud, and the affidavits annexed to the bil] are sufficient to make out a prima fade case of fraud. ^ § 880. Where an injunction has been irregularly obtained, or complainant has not used due diligence in the prosecution of his suit, it may be dissolved before the coming in of liie answer. 2 And a motion to dissolve vrill be entertained, not- withstanding complainant has amended his bill and no answer has yet been filed to the bill as amended. ^ And where upon its face the bill is wanting in equity to sustain the injunction. it may be dissolved on motion without answer.* Or, if an injunction has been granted contrary to the provisions of an imperative statute, the defendant is entitled to summary relief, and the order will be set aside for irregularity, without putting him to his motion to dissolve.^ § 881. Upon the hearing of a motion to dissolve an injunc- tion, the defendant is considered as the actor, and on him rests the burden of disproving the equities of the bill.^ Such full and positive proof, however, is not exacted as would be neces- sary upon a final hearing of the cause, since the effect of requiring such strictness of proof would be to prevent a dissolution until the final hearing.'' And while, for the purposes of such motion, defendant's answer is to be taken as true in so far as it is responsive to the allegations of the bill, yet it should fully and fairly meet complainant's equities, without evasion and without passing over material allegations. Even then, if a reasonable doubt exists in the mind of the ' Shotwell's Admr'x. % Smith, 5 C. B. Greon, 79. " Depeyster v. Graves, 2 Johns. Ch. 148 ; Woodhull v. Neafie, 1 Green Ch. 409, and note ; Corey ». Voorhies, lb. 5 ; West v. Smith, lb. 309 ; Beceivers etc. v. Biddle, 3 Green Ch. 233. But see, contra, Taylor v. Morgan, 2 Mart. O. S. 77. ' Semmes v. Mayor etc., 19 Geo. 471. * Kneedler v. Lane, 3 Grant's Cases, 533. ' Marlatt «. Perrine, 2 C. E. Green, 49. And see, as to the distinction between discharging an injunction for irregularity and dissolving it for want of equity, Judah d. Chiles, 3 J. J. Marsh. 303. « Miller v. "Washburn, 3 Irecl. Eq. 161. ' North's Ex'r. ». Perrow, 4 Rand. 1. 518 iNjTnsCTiONS. [chap. XX. court as to whether the equity of the bill is sufficiently answered, the injunction will not be dissolved, but will be con- tinued to the hearing.! And upon motion to dissolve, the answer is taken as evidence only of such facts as are responsive to the bill.s § 882. On a motion to dissolve upon bill and answer, such allegations of the bill as are not denied by the answer are to be taken as true, since they stand upon the affidavit of com- plainant and are entitled to as much weight upon the motion to dissolve as upon the original motion for the injunction. ^ It follows, therefore, that everything is to be presumed against the defendant with respect to any matter as to which he might have answered fully and directly, but has not done so.* And so long"^as any material allegations of the bill remain unan- swered, the injunction will not be dissolved, but will be con- tinued until the final hearing of the cause. ^ § 883. To warrant a dissolution upon bill and answer, the answer should deny the material allegations of the bill with the same clearness and certainty with which they are charged.* And for the purposes of such a motion, the answer is consid- ered only in so far as it is responsive to the allegations of the bill on which the writ issued.'' JSTew matter, therefore, not responsive to any allegation of the bill, will not be considered on the hearing of such a motion. ^ But if the answer so far denies the material allegations of the bill as to leave it without equity, even as to facts which it does not deny, the injunction will be dissolved.' ' North's Ex'r. v. Perrow, 4 Band. 1. ' Robinson e. Cathcart, 2 Cranch 0. C. 590. And see Rembert ii. Brown, 17 Ala. 667. ' Brown n. Stewart, 1 Md. Cb. 87 ; Cronise «. Clark, 4 Md. Oh. 403 ; Ran- dolph D. Randolph, 6 Rand. 194; Merwin v. Smith, 1 Green Ch. 183. And see Parks v. Spurgin, 3 Ired. Eq. 158. ' Parks V. Spurgin, 3 Ired. Eq. 158. ' Brown b. Stewart, 1 Md. Ch. 87. • Buckner v. Bieme, 9 Sm. & Mar. Miss. 804. ' Rembert v. Brown, 17 Ala. 667. And see Robinson d. Cathcart, 2 Cranch C. C. 590. » Wooten V. Smith, 37 Geo. 316. And see Lawrence v. Philpot, lb. 585. ' Moore v. Barclay, 33 Ala. 739 ; Rogers v. Bradford, 39 Ala. 474. CHAP. XX.J DISSOLtmON. 519 § 884. Where an injunction is so vagiie and indefinite in its terms as not to apprise defendants of tlie premises toucliing wMcli they are enjoined, a dissolution should be allowed. ^ But where the bill shows on its face sufficient cause for grant- ing the injunction, it is error to dissolve it on motion for want of equity. 2 And if defendant declines answering, he is to be regarded on the motion to dissolve as admitting the material allegations of the bill, and it is therefore error to dissolve the injunction, sufficient cause for its retention appearing upon the bill itself 8 If, however, the whole equity of the bill be denied by the answer, it is no sufficient objection to the motion to dissolve that defendant has incorporated scandalous and impertinent matter into his answer.* § 885. Deception or misrepresentation on the part of the person obtaining the injunction, affords strong ground for its dissolution. And where it is apparent upon a motion to dissolve an injunction granted ex parte, that complainant bas misrepresented his case, either by actual misstatement, or by a suppression of facts material to a full understanding of tbe equities involved, and that upon a correct statement of the facts the writ would not have been granted, such misrepre- sentation is of itself a sufficient ground for a dissolution.^ Nor is it a sufficient explanation of complainant's conduct in such a case to say that he had forgotten the facts which were omitted, or that he was not aware of their importance. " But in order to bring a case within the rule as here laid down, the degree of misrepresentation must have been such as to have influenced the court in granting the writ, by presenting a case different from that which actually existed.' And the " Avery v. Onillon, 10 La. An. 137. ' Floyd ». Turner, 23 Tex. 292. ' Peatross t. McLaughlin, 6 Grat. 64. ' Livingston v. Livingston, 4 Paige, 111. ' Endicott «. Mathis, 1 Stockt. 110; Brown v. Newall, 2 Myl. & Cr. 558; Greenhalgh n. Manchester etc., 3 Myl. & Cr. 799; Stedman®. Webb, 4 Myl. & Cr. 346. • Clifton v. Robinson, 16 Beav. 355 ; Attorney General v. Liverpool, 1 Myl. & Cr. 171. ' Brown i>. Newall, 2 Myl. & Cr. 558. 520 INJUNCTIONS. [chap. XX. fact that an injunction granted ex parte has been dissolved because of the suppression of material facts in obtaining it, constitutes no bar to a future application for another injunc- tion in the same ease.^ And it would seem that the question as to whether there was a misrepresentation or suppression of important facts in obtaining an injunction, will not be considered on appeal from an order granting or continuing the writ.^ § 886. To entitle a defendant to a dissolution of an injunction, he must deny the entire equity of the bill, directly and without evasion. It will not suffice that he answers the several charges or allegations literally, but he must traverse the substance of each charge specifically and not merely by a vague and general denial. And where defendant's answer is manifestly evasive and indirect, even though it may be true in substance as alleged, the motion to dissolve will not be allowed. 3 The doctrine as thus stated seems to Mlow neces- sarily from the rule, that for the purposes of a motion to dissolve an injunction, any allegation in the bill which is evaded by the answer is to be taken as true in substance.* And where defendants answer evasively, alleging an improb- able version of the transactions out of which complainant's equities have arisen, the court may, in the exercise of a sound discretion, order the injunction continued to the final hearing. ^ § 887. "Where, however, some of the denials in an answer relied upon for the dissolution of an injunction, though true in themselves, are yet evasive by reason of the manner in which they are made, and are not such as would be sustained on exceptions, yet if other portions of the answer allege facts responsive to the bill, and which, by reason of their being inconsistent with the allegations of the bill, thus deny such allegations, such portions of the answer may be taken in ' Fitch o. Rochfort, 18 L. J. Oh. 458. « Bell V. Hull etc., 1 Ra. Oa. 616. •Bverly v. Eice, 3 Green Ch. 553; Rich n. Thomas, 4 Jones Eq. 71; Wilson V. Mace, 3 Jones Eq. 5. ' Wilson V. Hendricks, 1 Jones Bq. 295. ' Jones t. Edwards, 4 Jones Eq. 357. OHAP. XX.] DISSOLUTION. 521 connection "with its evasive allegations, and thus constitute a sufficient denial to warrant a dissolution. ^ § 888. "Where, as is frequently if not generally the ease with interlocutory injunctions, the injunction is merely auxiliary to the principal relief sought by the bill, the dismissal of the bill of necessity works a dissolution of the injunction, ijoso facto. '^ Upon the bill being dismissed, therefore, the injunction falls as of course, and without further proceedings.* So where the bill for injunction is auxiliary to an action at law, on the dismissal of the proceedings at law, the injunction usually shares the same fate.* But where a railway company is enjoined from using complainant's land until satisfaction of a judgment obtained against the company for the appropriation of his land, the order for the injunction will not be reversed because of the reversal of the judgment for want of jurisdiction. ^ § 889. It does not follow, however, that upon the dissolu- tion of an injunction, the bill upon which it was granted must be dismissed, since other and further proceedings may be necessary to give the relief sought by the action, and com- plainant is still entitled to continue his cause as an original suit whenever further proceedings are necessary to give him relief " And the injunction being regarded as collateral to the main object of the bill, the suit remains after its dissolu- tion, and no motion to retain it is necessary.' It is therefore erroneous to dismiss the bill upon dissolving the injunction, and complainant has a right to proceed to a final hearing of the cause as if no injunction had been prayed or granted. ^ § 890. The fact of a preliminary injunction, granted in an • McMahon «. O'Donnell, 5 C. K Green, 306. ' Green v. Pulsford, 3 Beav. 72 ; Coleman «. Hudson etc., 5 Blatch. 56. » Green d. Pulsford, 3 Beav. 73. « Phelps t. Foster, 18 111. 309. ' Sturtevant d. Milwaukee etc., 11 Wis. 63. 'Blow II. Taylor, 4 Hen. & M. 159; Ruffners v. Barrett, 6 Munf. 207; Massie -o. Mann, 17 Iowa, 131. ' Cole «. Sands, 1 Overt. 183. 'Johnston B.Alexander, 6 Ark. 303; Bettison d. Jennings, 8 Ark. 287- Walters v. Fredericks, 11 Iowa, 181. 522 rajuNonoNS. [chap. xx. inferior court, having been dissolved without a dismissal of the bill, constitutes no bar to complainants obtaining relief in a superior court upon the same equities, i But where the writ has been granted merely as auxiliary to the principal relief sought, as in the case of a bill for specific performance of a contract, with an injunction in aid thereof, the injunction will be dissolved when the case presented by the bill is such as would not authorize the aid of equity to enforce the contract. ^ § 891. The authorities are somewhat conflicting upon the right of appeal froin an order of a court of original jurisdic- tion, dissolving a preliminary or interlocutory injunction, though the weight of authority supports the proposition that the power of dissolving, like that of granting preliminary injunctions, being a matter of sound discretion with the court, an appeal or writ of error will not lie from an order dissolving such an injunction.* Where, however, the statutes of a state authorize an appeal by any person aggrieved from any judg- ment, decree or order of a court of equity, an appeal has been allowed from an order continuing an injunction after answer.* ' Roljerts v. Jordans, 3 Munf. 488. ' Geiger v. Green, 4 Gill, 473. ' Van Dewater «. Kelsey, 1 N. T. 533 ; Toung v. Grundy, 6 Cranch, 51 ; Boinay v. Coats, 17 Mich. 411; Choteau ». Rice, 1 Minn. 34; Pickle «. Holland, 24 Miss. 566. * McYickar v. Wolcott, 4 Johns. 510. The following observations of Spencer, J., embody the reasons for sustaining the right of appeal in such a case: "This appeal is from an order of the court of chancery, continuing an injunction after answer, and directing the payment of costs by the appellants to the respondents for resisting the motion to dissolve the injunction issued on filing the bill. It has been objected preliminarily that no appeal is maintainable upon an order like the present. The twenty-second article of the constitution and the eighth section of the act regulating proceedings on appeal and error have been cited. The cour stitution does not profess to specify any regulations upon the subject, but directs that a court shall be instituted for the trial of impeachments and the correction of errors, under the regulations which shall be established by the legislature. The section of the statute referred to declares that all persons aggrieved by any sentence, judgment, decree or order of the court of chancery, or court of probate, may appeal from the same, or any part thereof, to this court. The decision of the chancellor, in denying a dissolution of the injunction, directing it to be retained, and awarding OHAP. XX.J DISSOLOTTON. 523 And a distinction has been drawn between cases where a dissolution of the injunction affects the merits of the cause, involving a decision upon material questions in controversy, and cases where the dissolution does not go to the merits, but affects simply collateral matters, or questions purely within the discretion of the court, the right of appeal being recognized in the former class of cases, but denied in the latter, i § 892. The unsettled state of the authorities upon this question is largely due to the difference in local usage, and the statutes regulating the right of appeal in the various states; and upon a question so dependent upon statutory enactment, it is exceedingly difficult, if not impossible, to lay down any general rule which shall be of universal application. If, how- ever, the injunction is the only relief sought by the bill, an order for its dissolution may be regarded as a final order, and as such subject to review by an appellate court. ^ But an appellate court will rarely, if ever, interfere with such an order except the case be free from doubt, or where some principle of law or equity has been violated, or unless the case is very clearly one of an abuse of discretion on the part of the court below.* § 893. An appeal from a decree dissolving an injunction does not have the effect of reviving and continuing the injunc- tion itself, since the process of the court, when once discharged, costs against the appellants, brings this case within the terms of the statute. An order of that court has intervened, in relation to which the appellants are aggrieved by the payment of costs, if that order is not justified on legal principles. That orders may he appealed from, it is now too late to controvert ; the practice of this court, in hearing such appeals in a variety of cases, has given a construction to the statute not to be shaken. "Without undertaking to draw the line between such orders as may or may not be appealed from, in my opinion, this is an order from which an appeal lies. In coming to a decision on a motion before the court of chancery, there must necessarily have been an examination into the merits of the case, as disclosed by bill and answer, and the appellants have sustained a gramaimm in the payment of costs." ' Trustees etc. «. Davenport, 7 Iowa, 313. ' Titus V. Mabee, 25 111. 257. 'Fleischman b. Young, 1 Stockt. 630; Garr ®. Hill, 1 Halst. Ch. 639; Loyless «. Howell, 15 Geo. 554. 524 iNjuNcnoNS. [ohap. xx. can only be reviyed by a new exercise of judicial power. An appeal being merely the act of the party, can not, of itself, affect the validity of the order of the court, nor can it give new life and force to an injunction which the court has decreed no longer exists. It follows, therefore, that an appeal from a decree dissolving an injunction, which had been granted to stay proceedings under, an execution at law, can not have the effect of reviving the injunction so as to operate as a stay of proceedings at law, and the plaintiff in execution may proceed to enforce his judgment, notwithstanding the appeal. ^ But it ' Garrow v. Carpenter, 4 Stew. & P. 336 ; Chegary v. Scofield, 1 Halst. Ch. 535 ; Hoyt ». Gelston, 13 Johns. 139 ; Wood v. Dwight, 7 Johns. Ch. 295. But see, contra, Penrice v. Wallis, 37 Miss. 173. In Hoyt v. Gelston, it is said, per curiam : "In this case the injunction had been dissolved, from which order there was an appeal ; and it is now urged that this appeal suspends all proceedings in this court, as much as if the injunction was still in full force. To give such effect to an appeal from an order dissolv- ing an injunction would be very mischievous in practice, and serve as a great engine of delay. We must consider the case now in this court as if no injunction had ever issued. If the parties have committed any con- tempt, by proceeding, application must be made to the court of chancery to punish such contempt, but that is a matter with which this court has no concern. It is enough for us that there is no existing injunction. Sup- pose application had been made in the first instance to the chancellor and he had refused the injunction, an appeal would have lain from such refusal ; but such appeal would not tie up the proceedings at law. If an appeal was to have such an operation, applications for injunctions might be per- verted to the worst of purposes." And in Wood «. Dwight, 7 Johns. Ch. 395, Kent, Chancellor, observes that "if the order dissolving an injunction, or discharging a party from a writ of ?i« exeat, was duly entered, no subse- quent appeal by the dissatisfied party could, of itself, affect the validity of the order, or revive the process and give it force and effect. An appea,! only stays future proceedings in the court ; but here is no further proceeding. The order is perfect and finished eo mstanti that it is entered ; and if the injunc- tion could be revived by the mere act of the party in filing an appeal, it would be giving to him not only a power of control over the orders of the court, but of creating an injunction. The Supreme Court of this state in Hoyt 1). Gelston (13 Johns. Rep. 139), held that an injunction was not revived by an appeal, so as to operate as a stay of proceedings at law ; and the Supreme Court of the United States, in Young v. Grundy, 6 Cranch, 51, held that no appeal would even lie upon an interlocutory order dissolving an injunction. Whether an appeal can be sustained, is a question for the Court of Errors; but supposing it can be sustained, it is impossible that a process that is duly discharged, and functm officio, can be revived by the CHAP. XX.] DISSOLiraON. 625 would seem that, pending an appeal from a decree dissolving a temporary injunction, the appellate court may grant a tem- porary injunction staying the proceedings to restrain which the original injunction was sought. ^ § 894. Delay or laches on the part of a defendant in seek- ing the aid of the court for the dissolution of an injunction, may constitute sufficient ground for refusing the motion. And where there has been long acquiescence under an order for an injunction, the courts are slow to entertain a motion for its dissolution. 2 And although complainant was guilty of a suppression of material facts in obtaining the injunction, yet a delay of several months on the part of defendants before taking steps for its dissolution, will prevent them from obtain- ing a dissolution on the ground of the deception used in obtaining the writ.* Even though the court had no jurisdic- tion of the case originally, defendant's acquiescence may be such as to warrant the court in retaining the order on the undertaking of complainant.* § 895. The rule is well settled, that on a motion to dis- solve an injunction, defendant will not be permitted to rely upon new matter in his answer in avoidance, but can only rely upon a direct and positive denial of complainant's equi- ties.^ And no principle of the law of injunctions is better established than that where the equity of the bill is admitted by the answer, or is not denied, and the answer sets up new matter in avoidance, or contains matter which amounts to a mere act of tlie party. How could this court undertake to enforce the pro- cess and punish contempts of it in the very face of the order dissolving it ? When a process is once discharged and dead, it is gone forever ; and it never can be revived, but by a new exercise of judicial power. It is suf- ficient, in this case, to declare that the defendant is entitled to pursue his remedy at law, equally as if no injunction had issued ; and no special leave to proceed is requisite." ' Chegary v. Scofield, 1 Halst. Ch. 525 ; Doughty ». Somerville etc., 3 Halst. Ch. 629. ' Feistel ii. King's College, 10 Beav. 491 ; Bickford «. Skews, 4 Myl. & Cr. 500; Bell v. Hull etc., 1 Ra. Ca. 616. * Bell 1). Hull etc., supra. ' Cardinall v. Molyneux, 7 Jur. N. S. 864. » Salmon e. Clagett, 3 Bland, 125 ; Bellona Company's Case, lb. 443. 526 iNjTjNcnoNS. [chap. xx. defense, sueli answer is not equivalent to a denial of complain- ant's equities and the injunction will not be dissolved, but will be continued until a hearing of the cause. ^ So a defendant upon a motion to dissolve will not be allowed to avail himself of new matter set up in a supplemental answer.^ "Where, however, the answer fully and unequivocally denies all the material allegations of the bill, the fact that it contains new matter, in addition to that in denial, constitutes no bar to a dissolution of the injunction.^ II. Dissolution upon the coming in of the Answee. § 896. General rule. 897. Illustrations of the rule. 898. Exception to the rule requiring positive denials in the answer. 899. The general rule not imperative ; discretion of the com-t. 900. Illustrations of the discretionary power of the court. 901. Dissolution refused where court desires additional information. 903. Considerations of relative convenience. 903. The rule limited to explicit denials in the answer. 904. Requisites of the answer. 905. Rule only departed from under special circumstances ; laches. 906. Dissolution in part. 907. Effect of evasive answer. 908. Verification of answer by corporation. § 896. Upon motion to dissolve an injunction an bill and answer, the answer, in so far as it is responsive to the bill, is to be taken as true.* And it is a well-settled rule that where the answer fully and unequivocally denies all the material ' Moss «. Pettingill, 3 Minn. 217 ; Green ®. Pallas, 1 Beas. 267 ; Society etc. «. Low, 3 C. E. Green, 19 ; Huffmann v. Hummer, 2 C. E. Green, 263 ; McNamara v. Irwin, 2 Dev. & Bat. Eq. 13 ; Lyrely v. Wheeler, 3 Ired. Eq. 170; Strong v. Menzies, 6 Ired. Eq. 544; Attorney General b. Oakland etc., "Walk. Mich. 90 ; Kerns ». Chambers, SIred.Eq. 576 ; Hutohins v. Hope, 13 Gill & J. 245. But see Society v. Butler, 1 Beas. 498, reversing same case, lb. 364. « Maryland v. Northern etc., 18 Md. 193. ' Shricker v. Field, 9 Iowa, 366. * Harris v. Sangston, 4 Md. Ch. 394. OHAP. XX.j DISSOLUTION. 527 allegations of the bill upon whicli complainant's equities rest, the injunction will be dissolved. i. And where it is shown by a special plea that there is no equity in the bill, the result, so far as regards the motion to dissolve, is the same as if the allegations of the bill were fully denied by answer.^ It is to be observed, however, that the rule requires positive averments in the answer, and not merely general allegations of denial based on information and belief. ^ In other words, the denial must be of the same positive character as the averments in the bill on which complainant's equities are based, and where in the bill material facts are positively averred, a denial in the answer of sufficient knowledge on which to form a belief does not meet the requirements of the rule.* § 897. In conformity with the general rule, an injunctioL against proceedings at law, obtained on the ground of fraud, will be dissolved where the answer fully and clearly disproves all fraud and shows a iona fide indebtedness and full consid- eration for the judgment, and it not appearing that the suits, although several in number, are malicious or vexatious.^ So an injunction to a judgment at law will be dissolved upon the coming in of the answer fully denying complainant's equity, except as to one point on which defendant is ignorant and which is not charged by the bill to be within his knowledge, every other allegation upon which complainant's equity rests being fully and positively denied.* § 898. The rule requiring the averments of the answer to ' Couch V. Ulster etc., 4 Johns. Ch. 36 ; Hollister v. Barkley, 9 N. H. 230; Armstrong «. Sanford, 7 Minn. 49; Anderson t>. Keed, 11 Iowa, 177; Stevens v. Myers, lb. 183 ; Taylor «. Dickinson, 15 Iowa, 483 ; Hatch s. Daniels, 1 Halst. Ch. 14; Washer v. Brown, lb. 81; Morris etc. v. Fagan, 3 C. E. Green, 215 ; Suffern «. Butler, lb. 220 ; Parkinson v. Trousdale, 3 Scam. 867 ; Harris v. Sangston, 4 Md. Ch. 394 ; Schoeffler v. Schwarting, 17 Wis. 30; Roberts v. Anderson, 2 Johns. Ch. 202; Kaighn «. Fuller, 1 McCart. 419. " Eldred v. Camp, Harring. Mich. 162. ° Doub «. Barnes, 4 Gill, 1 ; Attorney General v. Oakland etc., Walt Mich. 90. < Smith «. Appleton, 19 Wis, 468. ' Jackson ■». Darcy, Saxt. 194. « Capehart «. Mhoon, Busb. Eq. 30. 528 iNJUMcrnoNS. [chaj?. xx. be positive, and not upon information and belief, is occasion- ally relaxed wbere, from the nature of tbe case, the defendant can not deny the allegations of the bill upon his own personal knowledge. Thus, where the answer is by the p,dministrator of one who was a party to the contract out of which the alleged equities arose, and it denies those equities upon infor- mation and belief, such denial, if sustained and strengthened by some of the allegations of the bill, and if in itself con- sistent and probable, will warrant a dissolution of the injunc- tion.' But in the absence of such circumstances tending to strengthen the averments of the answer of a defendant who, from his representative character as an executor or adminis- trator, can have no personal knowledge of the facts, his denial upon information and belief will not warrant a dissolution where the equities of the bill are positively charged. ^ § 899. To the general rule that a preliminary injunction will be dissolved on the coming in of the answer fully denying the equities of the bill, there are numerous exceptions, based upon recognized principles of equity, which may not inappro- priately be noticed in this copnection. And, in the first place, it is to be constantly borne in mind that the dissolution, like the granting of interlocutory injunctions, is largely a matter of judicial discretion, to be determined by the nature of the particular case under consideration. A dissolution, therefore, does not follow necessarily and of course upon the coming in of the answer denying the material allegations of the bill upon which the injunction issued, and the court may, in the exer- cise of a sound discretion, refuse a dissolution and continue the'injimction to the hearing, where the circumstances of the case seem to demand this course.^ Especially will this dis- ' Clayton v. Lyle, 3 Jones Eq. 188; Coale v. Chase, 1 Bland, 136. But see, contra, Williams «. Stevens' Adm'r., 1 Halst. di. 119. ' Powell «. Brown, 33 Geo. 375. ' Chetwood «. Brittan, 1 Green Ch. 438 ; Irick v. Black, 3 C. E. Green, 189; Eirmstone v. DeCamp, 3 C. E. Green, 309; Shcllman v. Scott, Cliarlt. R. M. 380 ; Albany City Bank o. Scliermerliorn, Clarke Cli. 303 ; Attorney General v. Oakland etc., "Walk. Mich. 90; Orr v. Littlofiekl, 1 "Woodb. & M. 13 ; Linton v. Denham, 6 Fla. 533 ; Hoagland v. Titus, 1 McCart. 81 ; Holt CHAP. XX.] DISSOLUTION. 629 cretion be exercised where fraud is the gravamen of the bill/ or where it is apparent to the court that a dissolution of the injunction would result in greater injury and hardship than its continuance to the hearing, ^ or where it is apparent that, by the dissolution, complainant would lose all the benefit which would otherwise accrue to him should he finally succeed in his cause.* § 900. In the exercise of this discretion, a dissolution will not be allowed where auxiliary evidence of complainant's right is before the court, suf&eient to sustain the bill, even though its material averments be denied by the answer.* And where the facts and entire history of the case, as disclosed by bill and answer, afford strong presumption that complainant will establish his claim for relief upon the hearing, and that he might in the meantime suffer irremediable injury by the dis- solution, the injunction will be retained. ^ So -Vrhere the case as presented by the bill .is one which seems to require investi- gation, and the effect of dissolving the injimction would be to place the property which is the subject of controversy beyond the control of the court in which the action is pending, and would be equivalent to a complete denial of the relief sought by the bill, the injunction wiU not be dissolved.^ So, too, where the circumstances of the case, as disclosed in the answers of both of two defendants, seem to require that the injunction should be continued, it vrill not be dissolved upon the answers, but will be retained until the hearing.'' § 901. Where it is apparent from the answer that there are still questions of doubt, on which additional light is requisite to satisfy the court before deciding the rights of the parties, a ti. Bank of Augusta, 9 Geo. 553 ; Dent «. Summerlin, 13 Geo. 5 ; Hammett «. Christie, 31 Geo. 251 ; New v. Same, 10 Paige, 502. ' Dent v. Summerlin, 13 Geo. 5. " Chetwood ®. Brittan, 1 Green Ch. 438 ; Firmstone o. DoCamp, 2 C. E. Green, 309. " Attorney General i). Oakland etc., "Walk. Mich. 90. < Orr ». Littlefield, 1 Woodb. & M. 18. » Linton v. Denham, 6 Fla. 533. « Hoagland v. Titus, 1 McCart. 81. ' Hammett e. Christie, 21 Geo. 351. - 34 530 rNJDNCTIONS. [OHAP. XX. dissolution should not be granted, especially where the Tery purpose for which the relief was originally allowed was the prevention of irreparable injury, i Or, if a reasonable doubt exists as to whether the equity of the bill is sufficiently nega- tived by the answer to warrant a dissolution, it is not error for the court to refuse to dissolve the injunction and to order it to stand over that proofs may be taken. ^ § 902. If the continuance of the injunction, even admitting defendant's answer to be true, can not prejudice or imperil his rights, and on the other hand its dissolution might seriously impair the rights of complainant, the motion to dissolve upon the coming in of the answer should not be allowed. Thus, in the case of an injunction in aid of a ci'editor's bill, the answer of the defendant, denying the ownership of any property, or interests in property of any nature whatever, does not neces- sarily entitle him to a dissolution of the injunction restraining hirO from disposing of his property. In such case, if the answer be true, the injunction can work no injury to defend- ant, and if, notwithstanding his answer, he is possessed of property, the injunction should be continued for the protection of the creditors.^ So where the fact is disclosed by defend- ants' answer that they have no substantial interest in the subject matter of the action, such interest being in a third person, not a party to the bill, and that the interests of the defendants can not be prejudiced by continuing the injunc- tion, while complainant's rights may be seriously jeopardized, the writ will not be dissolved on such answer.* § 903. The rule that an answer fully denying the equities of the bill entitles defendant to a dissolution, must be under- stood as applying only to cases where the denial in the answer is explicit and direct, traversing the allegations of fact on which the writ was granted. It is not sufficient that it deny the inferences to be drawn from those facts, or deny their effect, and such an answer does not constitute sufficient ground • Purnell ^). Daniel, 8 Ired. Eq. 9. ' James «. Lemly, 2 Ired. Eq. 278; Monroe ». Mclntyi-e, 6 Ired. Bq. 65. ' New V. Bame, 10 Paige, 503. * James v. Korris, 4 Jones Eq. 225. CHAP. XX.] DISSOLTJnON. 53] for dissolving an injunction, i Nor will a merely technical denial meet the requirements of the rule, especially if it is manifest from the whole case that the aid of the court is still necessary for the protection of complainants.^ § 904. To entitle defendants to a dissolution, their answer must be at least credible,^ and it must be responsive to the material allegations of the bill;* otherwise the injunction will be continued to the hearing. And in no event will a dissolu- tion be allowed upon an answer not under oath, and without evidence of the truth of the facts alleged in defense. ^ So, too, the facts denied must be mthin the knowledge of the person denying under oath, and a mere denial upon information and belief will not suiiice.* Thus, a denial in the answer, upon information and belief, of a notice upon which the equity of the case largely rests, is not a sufficient denial within the rule to warrant a dissolution of the injunction.'' § 906. ^A critical examination of the eases wherein a departure has been allowed from the general rule, that defend- ant is entitled to a dissolution on filing his answer denying the equities of the bill, will show that in every instance the departure has been warranted by special circumstances, appeal- ing strongly to the exercise of a sound judicial discretion, and warranting the court in retaining the injunction, notwith- standing the denial of the averments of the bill, in order that substantial justice might be done between the parties. But such discretion will not be exercised in behalf of one who has been grossly negligent in the assertion of his rights ; and where complainant has been guilty of great laches, and has allqwed an unreasonable length of time to elapse without taking any stops in his cause, the general rule will not be departed fromV ' Teasey v. Baker, 4 C. E. Green, 61. ' Merwin v. Smitli, 1 Green Ch. 183. ' Moore v. Hylton, 1 Dev. Eq. 433. < Eicli 11. Thomas, 4 Jones Eq. 71. ' Gray «. MoCance, 11 111. 835. « Higbee v. Camden etc., 4 0. E. Green, 276; Ward v. Van Bokkelea, 1 Paige, 100. ' Piersen v. Eyerson, 1 Halst. Ch. 196. 532 INJUNCTIONS. [chap. XX. and the injunction will be dissolved upon the coming in of the answer denying complainant's equities. ^ § 906. If the answer negative only a part of the equity of the bill, it will not suffice to warrant the court in dissolving the injunction, and under such circumstances it will usually be continued to the hearing. ^ Where, however, a discrimination can properly be made, and the injunction can be dissolved in part and retained as to the remainder, if the answer satis- factorily denies a portion of the equity of the bill, a dissolution may be allowed ^o tanto.^ § 907. Where defendant's answer is illusory, and is defi- cient in frankness and candor, the injunction will be retained.* Thus, an averment in an answer that certain material facts are substantially correct, so far as concerns the defendants, is defec- tive both in form and substance, and is not sufficient to entitle defendants to a dissolution. ^ So if the answer makes no denial of the averments of the bill on which complainant's equity rests, but simply asserts that defendant does not believe and can not admit them, it is insufficient to warrant a dissolution.^ And where, after the coming in of the answer, enough of the bill still remains undisputed to render it probable that com- plainant will sustain his claim for relief, the injunction will not be dissolved.'' And an injunction which has been granted upon notice and affidavits of both parties, especially upon the affidavits of defendants themselves, going to the merits of the cause, will not be dissolved on answer, but will be continued to the hearing. " § 908. Where a corporation is made a defendant in equity, an answer under the corporate seal and without oath is gene- rally sufficient for ordinary purposes, and this is the usual mode of answering by corporate bodies. But for the purposes ' Greenin v. Hoey, 1 Stockt. 137. " Jackson «. Jones, 25 Geo. 93. ' Edwards b. Ferryman, 18 Geo. 374. * Little v. Marsh, 3 Ired. Eq. 18. ' Carr v. Weld, 3 C. E. Green, 41. « Kent i>. Ricards, 3 Md. Ch. 392. ' Sherrill b. Harrell, 1 Ired. Eq. 194. ' Siimiokson v. Johnson, 3 Green Ch. 374. CHAP. XX.J DISSOLTJTXON. 533 of a motion to dissolve an injunction, sucli an answer, verified merely by the corporate seal, is not suificient, and the oath of some ofBcer of the corporation, or other person acquainted with the facts alleged in the answer, is also required, i III. Dissolution of Injunohons AOArasi several jodti Debendahts. § 909. The general rule. 910. Modifications of the rule. 911. Modifications of the rule. 913. Special cases. 913. Impossibility of procuring answer. 914. Greater strictness required in cases of fraud. 915. Ignorance.^ absence of defendant; improper joinder. § 909. The general rule as to the dissolution of injunctions granted against several defendants jointly, is that a dissolution will not be allowed until all the defendants implicated in the charge have fully answered, denying the equities of the biU.^ The rule is based upon the necessity of protecting the rights of complainant by retaining the injunction until the personal knowledge of all the defendants has been tested as to the facts alleged in the bill, and until this' is done, complainant has a right to insist upon the protection of the court. ^ § 910. It is to be noticed, however, that the rule as here stated is limited by three important modifications or excep- tions. The first of these is, that complainant must have used due diligence in taking the necessary steps to expedite his cause and to procure the answers of all the defendants.* ' Fulton Bank v. New York etc., 1 Paige, 311 ; Hemphill v. Ruckersville Bank, 3 Geo. 435 ; Griffin v. State Bank, 17 Ala. 258. ''Noble V. Wilson, 1 Paige, 164; Smith v. Loomis, 1 Halst. Ch. 60; Johnston v. Alexander, 6 Ark. 303. • Coleman ®. Gage, Clarke Ch. 395. * Mallett «. Weybossett Bank, 1 Barb. 317 ; Depeyster c. Graves, 3 Johns. Ch. 148; Stoutenburgh v. Peck, 8 Green Ch. 446; Johnston v. Alexander 6 Ark. 303; Noble v. Wilson, 1 Paige, 164. 534 IN4JINCTI0NS. [chap. XX. Equity rarely, if ever, extends its protection to those wlio have been negligent in the assertion of their rights, and complain- ants who hare been guilty of laches in compelling the answer of defendants, can not complain if a dissolution is allowed before the answers of all the defendants enjoined have been filed. Thus, where the answers of some of the defendants were in, and the others could have been obtained by due diligence, but complainant had neglected for a period of nine months to procure them, a dissolution was properly granted, i § 911. A second modification of the rule is, that the answer is required only of those defendants upon whom rests the gravamen of the charge, and where such defendants have fully answered, denying the material allegations of the bill, the injunction may be dissolved, notwithstanding other defendants have not yet answered. ^ Thus, the answer of defendants who are joined merely as formal or nominal parties to the action, will not be insisted upon, since such answer can not vary or alter the effect of the answers of the real defendants in interest, nor deprive them of their right to a dissolution upon negativ- ing the equities of the bill.* So where it is apparent upon the face of the answer itself, that all the defendants who have any personal knowledge of the matters in controversy have answered, denying the allegations of the bill, and that the defendant not answering is ignorant of the facts in issue, the injunction should be dissolved.* Nor does it matter that the answer in such case contains new matter in addition to that in denial, provided all the material averments of the bill are clearly denied.^ The third recognized modification of the rule ' Depeyster v. Graves, 3 Jolins. Ch. 148. ' Higgins «. Woodward, Hopk. 342 ; Seebor v. Hess, 5 Paige, 85 ; Depeys- ter 11. Graves, 2 Johns. Ch. 148; Vliet v. Lowmason, 1 Green Ch. 404; Stoutenhurgh «. Peck, 3 Green Ch. 446 ; Mallett ■». "Weybossett Bank, 1 Barb. 317 ; Adams v. Hudson etc., 2 Stockt. 535 ; Heck v. Vollmer, 39 Md. 507 ; Coleman v. Gage, Clarke Ch. 395 ; Johnston «. Alexander, 6 Ark. 302; Powler s. "Williams, 20 Ark. 641 ; Shricker v. Field, 9 Iowa, 366. ° Higgins «. "Woodward, Hopk. 343; Shricker «. Pield, 9 Iowa, 866. * Coleman v. Gage, 1 Clarke Ch. 295. ' Shricker v. Field, 9 Iowa, 366. CHAP. XX..] DlSSOLimOH. 535 is, that it is applicable obIj to cases where the injunction was properly granted in the first instance. ^ § 912. If one of several defendants enjoined answers with a full denial of the material allegations contained in the bill, and another denies all knowledge, information and belief of the matters in controversy, the injunction may be dissolved, with- out waiting for the answer of a third defendant who can know nothing of the equities of the bill.^ But whe"re, upon filing a bill, an injunction is allowed against one of several defend- ants, it will not be dissolved upon his answer negativing complainant's equities, if the other defendants by their answers admit all the material allegations of the bill.* "Where, how- ever, one of the defendants files his answer, and from his own connection with the subject in controversy and of his own personal knowledge, is able to lay such facts before the court as to render it apparent that complainant has no equity, a motion to dissolve may be granted, without the answer of the other defendant.^ § 913. "Where from the circumstances of the case it is impossible to procure the answer of all the defendants, those who have answered, denying the equities on which the injunction rests, are entitled to a dissolution without further delay. Thus, where the defendant that has not answered is a foreign corporation, not within the jurisdiction of the court, and it is therefore impossible to compel an answer from such defendant, the absence of its answer is not sufiicient ground for refusing to dissolve the injunction. ^ § 914. Courts of equity are usually more strict in requiring a positive denial from all the defendants before dissolving an injunction granted on the ground of fraud, than in ordinary cases. And where the bill implicates two defendants in the same charge of fraudulent conduct, the court will require the * Mallett V. "Weybossett Bank, 1 Barb. 217. And see Depeyster v. Graves, 2 Johns. Ch. 148 ; Vliett v. Lowmason, 1 Green Ch. 404. ' Eock-well V. Lawrence, 1 Halst. Ch. 20. * Zabriskie v. Vreeland, 1 Beas. 179. * Gregory v. Stillwell, 2 Halst. Ch. 51. ' Baltimore etc. v. Wheeling, 13 Grat. 40. 636 raomNcrnoNS. [chap. xx. answer of both defendants before granting a motion to dissolve.! So where the answer of one of the defendants is not sufficiently full and satisfactory as to the acceptance and subsequent fraudulent relinquishment of a trust, which constituted one of the chief grounds on which the injunction was granted, it will not be dissolved, even though there are no other reasons for retaining it.^ And where fraud is one of the grounds upon which the injunction was granted, a denial on the part of some of the defendants of fraud as to themselves, will not authorize a dissolution, if their title or rights may be affected by the fraud charged against the other defendants. 8 § 915. Mere ignorance of the subject in controversy on the part of the defendants answering the bill, and their consequent inability to deny the material averments on which its equity depends, will not warrant the court in dissolving the injunc- tion.* Nor does the fact that the only defendant who can answer such allegations is absent from the state, constitute any ground of exception to the general rule, and the injunction will, under such circumstances, be retained to the hearing. ^ And on motion to dissolve an injunction against proceedings at law, the fact that a third person, not a party to the action at law, and improperly made a defendant in the injunction suit, was enjoined, will not avail the defendant seeking a dissolution.^ ' Price v. Olevenger, 3 Green Oh. 307. « Scull V. Reeves, 2 Green Oh. 84. " Schennerhorn v. Merrill, 1 Barb. 511. * Lines v. Spear, 4 Halst. Ch. 154; Councill v. Walton, 4 Ired. Eq. 155. 'Id. « Tradesman's Bank v. Merritt, 1 Paige, 303. CHAP. XX.] DISSOIiOTION. 537 rV. DiBSOLtraoN OF Injunctions against PEooEEDmas at Law. § 916. Effect of dissolution. 917. Dissolution refused before hearing where right is founded in trust. 918. Dissolution in part. 919. Credits allowed on judgment. 920. Effect of defendant declining to answer. 921. Error to enter decree for amount of judgment on dissolution. § 916. The effect of a decree dissolving an injunction against the enforcement of an execution at law, is to restore the execution creditor to the same position which he occupied before the granting of the writ, and he may proceed to enforce his execution as if no injunction had been granted. ^ Not does an appeal from such a decree operate as a stay of execution or revive the injunction, and the creditor is at liberty to proceed with the collection of his execution, notwith- standing such appeal, as if he had never been enjoined. ^ § 917. "While no principle of the law of injunctions is better established than that he who has a good defense to an action at law, which he omits or fails to make in the legal forum, can not afterward mate such defense the foundation of a bill in equity to enjoin the proceedings at law, yet where an injunction has been granted against such proceedings, it will not be dissolved before the hearing, where complainant's right to relief rests on matters of trust exclusively of equitable jurisdiction. 3 And wbere a suit at law has been enjoined in order that the defendant in the action might obtain relief and discovery by changing the forum of litigation, if the subject matter is peculiarly of equitable cognizance, making it proper for a court of equity to retain jurisdiction of the case, the " Duckett V. Dalrymple, 1 Eich. Law, 143. ' Garrow v. Carpenter, 4 Stew. & P. 336 ; Hoyt v. Gelston, 13 Johns. 139 ; Wood V. Dwight, 7 Johns. Ch. 295. ' Quackenbush ■». Van Biper, Saxt. 476. 538 iNjTTJsicrnoNS. [chap. xx. injunction will not be dissolved on the coming in of the answer, denying the equities of the bill.i § 918. Injunctions granted against judgments at law may- be dissolved in part and retained until a hearing as to the residue, where the circumstances of the case are such as to clearly require this course in order to promote justice and secure the rights of all parties.^ Thus, an injunction to a judgment at law, where the answer admits a pai-t of the judgment to have been paid, should not be made perpetual, upon a motion to dissolve, even as to the part paid, but should be continued to the hearing as to the amount admitted to be paid, and dissolved as to the residue. ^ And under the English practice, an injunction restraining several defendants from proceedings at law, may be dissolved as against some of them, before all have answered.* § 919. An injunction restraining proceedings under a judgment at law on the ground that the judgment is for an amount larger than that really due, will not be continued on defendant's allowing a credit for the amount of the excess; and the answer showing positively that the balance of the judgment is justly due, the motion to dissolve will be granted." And where proceedings at law are enjoined on the ground of certain credits which have not been allowed, if the defendant admits the credits by his answer and offers to allow them, the injunction will be dissolved as to the balance justly due.* § 920. If defendant declines answering the injunction bill, he is regarded, on the motion to dissolve, as admitting its allegations. It is therefore error to dissolve an injunction against a judgment at law where the bill contains upon its face sufficient equity to warrant the writ, as where it appears that ' Brown v. Edsall, 1 Stockt. 356. ' McEeynolds v. Harshaw, 3 Ired. Eq. 39. »Id. •• Lewis D. Smith, 7 Beav. 470. ' Rodahan v. Driver, 33 Geo. 352. « Welch V. Parran, 3 Gill, 330. !HAP. XX.] DlSSOLTjnON. 539 the judgmfciit has heen discharged by proceedings in bank- raptcy, and defendant declines to answer, i § 921. In the absence of statutory enactment requiring such a course, it is error for a court of equity, in dissolving an injunction granted to restrain proceedings under a judg- ment at law, to enter a decree in favor of the plaintiff at law for the amount of the judgment enjoined, with damages and interest; the proper practice in such case is to dissolve the injunction and dismiss the bill with costs.^ V. Dissolution ov iNjuNcrnoNS afeectinq the Tttle to Eealty. J, 933. Diligence exacted of complainant. !l)33. Injunction retained in case of doubt. 5)24. Injunction against judgment for unpaid purcliase money. 925. The same. 936. Special cases. § 922. The general rule exacting diligence from one who seeks- the extraordinary aid of equity for the protection of his rights, prevails very strongly where an injunction is granted for the protection of property pending litigation concerning the right or title in dispute. And where a person has received the aid of a court of equity by injunction for the purpose of protecting him in the property in dispute, until the questions at issue shall be determined, he will not be allowed to sluniber on his rights, and if he fails to exercise reasonable diligence in advancing his suit, the injunction will be dissolved. ^ Long ■ Peatross v. McLaughlin, 6 Grat. 64. ' Medley «. Pannill's Adm'r., 1 Eoh. Va. 63. ' Schalk V. Schmidt, 1 McCart. 268. That the rule, however, is not ■without exception is indicated by the following observations of, the court: "There are exceptions to the general rule, but they will be found to consist either of cases where the party enjoined is the mere solicitor, or agent, or tenant of a party to the suit, having no rights involved in the controversy, or where the right has been already determined. Cholmondeley o. Clinton, 19 "Vesey, 261; Attorney General ®. Ancaster, Dick 68; Mogg v. Mogg, lb. 67i); Casamajor v. Strode, 1 Sim. & St. 381." 6i0 iNJDNcnoNS. [chap. XX. acquiescence on the part of a complainant in alleged acts of fraud, wMcli constitute the foundation of his injunction, and unreasonable delay in invoking the aid of the court for the protection of his rights, will warrant the court in dissolving the injunction. Thus, where an injunction has been obtained on the ground of fraud in certain conveyances, but it appears by the answer that complainants had long been aware of the pretended fraud, and had allowed defendants to proceed without molestation, and exercise acts of ownership and mort- gage the premises, the motion to dissolve will be granted, i I 923. The existence of doubt as to whether real estate is properly subject to sale under execution, constitutes sufficient ground to warrant a court in retaining an injunction against the sale. Thus, in the case ot an injunction against a sheriff's sale of real property under execution, while a serious question is pending and undetermined as to whether the land is really subject to sale in satisfaction of the judgment, a motion to dissolve will not be granted, but the injunction will be continued to the hearing. ^ § 924. To authorize a dissolution of an injunction against a judgment for unpaid purchase money of real estate, granted on the ground of defective title, defendants in the injunction suit will be required to exhibit a good title, and complainant, having covenants of warranty from defendants, will not be compelled to accept a conveyance from a third party. * And where the defendant seeks a dissolution of such an injunction on the ground that the title is sufficient, he may be required to produce his title to the court, in order that it may be satisfied as to its sufficiency.* While the purchaser of land may properly enjoin its sale under a deed of trust seciiring the unpaid purchase money, where the title proves defective, yet when the defect is cured by a conveyance of the outstand- ing title, the injunction will be dissolved, although there are general allegations in the bill of other outstanding title which • Trustees etc. v. Gilbert, 1 Beas. 78. « "Van Mater «. Holmes, 3 Halst. Oh. 575. » Moore v. Cooke's Adm'rs., 4 Hayw. Tenn. 84. * Moredock «. Williams, 1 Overt. 335. CHAP, XX.] DISSOLTjnON. 541 are not supported by proof.' But until an actual tender of a good and sufficient conveyance, tlie injunction should not be dissolved, and if dissolved before vendor has given such con- veyance, it may be reinstated.^ § 925. While the authorities are conflicting as to the right of a purchaser of real estate, with covenants of general warranty, to enjoin a judgment for unpaid purchase , money on account of defective title, ^ it would seem that if an injunc- tion may be allowed under such circumstances the judgment will not be perpetually enjoined, but only until the purchaser can prosecute his legal remedy on the covenants of warranty, and if he fails to do this within a reasonable period, the injunction will be dissolved.* § 926. An injunction granted against a railway company to restrain it from taking possession of private property without first making payment or tender of damages for the occupancy, will not usually be dissolved on motion, but will be retained until a hearing upon the merits. ^ And where the bill on which an injunction is granted against the prosecution of an action of ejectment, charges that the conveyances on which defendant's title rests are fraudulent, the injunction will not necessarily be dissolved on the coming in of the answer, unless it fully and satisfactorily negatives the fraud, and a mere general denial is not sufficient for this purpose. ^ ' Lovell V. Chilton, 3 West Va. 410. ' Grantland e. Wight, 3 Munf. 179. ' See § 378, et seq., ante. * Swain v. Burnley, 1 Mo. 404. » Ross «. Elizabeth etc., 1 Green Ch. 423. « Roberts v. Anderson, 3 Johns. Ch. 303. 54:2 rajxTNonoNS. [chap. VI. Special Gkoumds of Dissowjuon. § 927. Technical errors no ground for dissolution. 928. Abuse of trust. 929. Matters of record ; improper verification. 930. Writ not dissolved, ipso facto, on coming in of tlie answer. 931. Dissolution not allowed on evasive answer. 932. Effect of a dissolution obtained in other ways. 933. Injunctions in aid of bill for discovery. 984. Security; deposit. 935. Injunction not made perpetual on refusing dissolution. 936. Dissolution where principal relief sought can not be obtained. 937. Complainant estopped from reviving injunction. 938. Injunctions against taxes. 939. Irregularities in service of writ no ground fbr its dissolution. 940. Misrepresentation; laches. 941. Effect of moving to dissolve before answer. 942. Want of diligence in prosecuting cause. 943. Questions of law; withdrawal of wi'it by complainant. 944. Writ retained where sulBcient equity appears in the answer. 945. Verification of bill. § 927. Mere technical errors or inaccuracies in matters of form, either in the bill or in the order of the court granting the injunction, will not avail a defendant on a motion to dissolve, provided the bill shows sufficient equity to entitle complainant to the writ.* Thus, the omission to ask for the injunction in the prayer for process, it being prayed for in tlie general prayer of the bill, does not constitute ground for a dissolution, even though it might have been a sufficient objec- tion to warrant the court in refusing the injunction in the first instance. 2 And where a dissolution is sought on account of the insufficiency of the bond, the order of the coutt dissolv- ing the injunction should not be made absolute in the first instance, but a reasonable time should be allowed for the • Beauchamp v. Supervisors etc., 45 111. 274 ; Taylor v. Snyder, Walk. Mich. 490. ' Taylor v. Snyder, Walk. Mich. 490. CHAP. ■XX. j JJBSOLTJTIQN. 543 filing of a new bond, the injunction meanwhile remaining in force. ' § 928. Where an injunction has been obtained on general allegations in the bill of an abuse of trust, which are denied by the answer, so much of the injunction aa restrains defendant from any further exercise of his irust, may be dissolved, upon the ground that a general charge of abuse of trust is not suf- ficient to warrant the interposition of a court of equity; in such cases the specific facts relied upon should be made to appear. 2 § 929. If all the facts necessary for obtaining an injunction are matters of record, though not properly presented to the court on the application for the writ, and the applicant has an unquestioned right to a new injunction in case the first is dissolved, the motion for a dissolution will not be granted. ^ If, however, the allegations constituting the foundation for the relief are improperly sworn to, the injunction may be dissolved, even though the party aggrieved is entitled to a new one upon the dissolution of the first.* § 930. A preliminary injunction, granted until the coming in of the answer, is not dissolved, vpso facto, by the coming in of the answer, but requires an order for that purpose.'' It is held, however, that no motion to dissolve is necessary in such a case. 8 Eut on its being satisfactorily made to appear to a court of equity that an injunction has been irregularly and improperly dissolved, it will be revived.'' And it may be said generally, that courts of equity are always open to reinstate as well as to grant injunctions. ^ But the fact that an indictment for forgery has been found upon the answer on which a disso- ' Beauchamp v. Supervisors etc., 45 111. 374; Gamble b. Campbell, 6 Fla. 347. » Cooper «. Cooper, 1 Halst. Ch. 9. » Campbell «. His Creditors, 8 La. 71. • Eeboul's Heirs «. Behrens, 5 La. 79 ; Oatlett n. McDonald, 13 La. 44 • Turner «. Scott, 5 Rand. 833. " Beal D. Gibson, 4 Hen. & M. 481. ■I Billingalea «. Gilbert, 1 Bland, 566. And see Beal t. Gibson, 4 Hen & M. 481. ' Radford's Ex'rs. «. Innes' Executrix, 1 Hen. & M. 8. 544 INJUNCTIONS. [chap. xx. Intion was allowed, does not constitute sufficient ground for reviving tL.e injunction. ^ § 931. An injunction will not be dissolved upon an answer which is evasive as to the material allegations of the bill. Thus, in the case of an injunction restraining defendant from removing his property beyond the limits of the state, if defend- ant answers evasively as to his intention to remove his prop- erty, and also evades the allegation of his insolvency, which was one of the grounds for granting the relief, the injunction will not be dissolved, especially if defendant bases his rights upon a doubtful question of law; in such a case it is the duty of the court to continue the writ until a hearing upon the merits.* § 932. The same effect which would attend a formal disso- lution may sometimes be reached in other ways. Thus, a decree for the payment of money, which had been enjoined in the hands of one who was a party to the action, has the same effect as a dissolution, and practically works a dissolution, although no formal order of the court has been made dissolv- ing the injunction.* And where a cause is removed from a state court to the courts of the United States, under the act of congress,* any injunction issued before such removal, is dis- solved, ipso facto, and no motion for its dissolution is neces- sary.'^ So where one has obtained an injunction until answer or further order of the court, he being sole complainant in the bill, and he afterward amends the bill by joining another person as co-complainant, such an amendment operates as a dissolution." § 933. Injunctions granted merely for purposes of discovery and in aid of a defense at law, are usually dissolved upon the filing of the answer. Such injunctions, being merely auxiliary in their nature, and only intended to stay proceedings until a ' Clapham ®. White, 8. Ves. 35. ' Wilson ■!). Mace, 2 .Tones Eq. 5. » Creole's Ex'r. «. Turpin, 10 B. Mon. 243. * 1 Statutes at Large, 79. " McLeod a. Buncan, 5 McLean, 342 ; Hatch v. Chicago etc., 6 Blatch. 105. • Attorney General «. Marsh, 16 Sim. 573. CEAP. XX.J DISSOLUTION. 545 discovery is obtained, when this object is accomplished no necessity exists for their further retention, and they are accord- ingly dissolved on the coming in of the answer, i Thus, in the case of an injunction restraining legal proceedings, on a bill for discovery and in aid of a defense at law, defendant's answer denying the allegations of the bill as to those matters concern- ing which the discovery is sought, and making no discovery, the injunction will be dissolved. ^ And it has been held that defendant in such a case is entitled to a dissolution, regardless of whether his answer admits or denies the facts charged in the bin. 3 § 934. The fact of defendant in an injunction suit having given security to perform and abide by the decree of a court of another state, in a suit between the same parties and involv- ing the same subject matter, will not of itself warrant a disso- lution, unless defendant gives security for the payment of the debt which he admits to be due.* But where a deposit is made by way of security for costs on obtaiaing an injunction, as is required in many of the states, the right to the money depos- ited can not be decided until the final hearing, and defendant is not entitled to it immediately upon a dissolution of the injunction on bill and answer. ^ § 935. Upon overruling a motion to dissolve, the court will not usually make the injunction perpetual, since the defendant still has a right to be heard upon the merits.' A decree making an injunction perpetual can only be rendered upon a bill fro confesso, upon overruling a demurrer to the bill, or upon a hearing on the bill, answer, exhibits and proofs.'' And after an injunction bill has been taken pro confesso for want of an answer, a motion wiU not be entertained on behalf of ' King «. Clark, 3 Paige, 76; Grafton v. Brady, 3 Halst. Ch. 79. " Grafton «. Brady, 'd Halst. Ch. 79. " King V. Clark, 3 Paige, 76. * McKim V. Fulton, 1 Overt. 238. » Leggett «. Dubois, 1 Paige. '>74. « Ottawa V. "Walker, 21 111. 610. 'Id. 35 546 nuuKcnoNS. [chap. xx. defendant for a dissolution of the injunction as having been improperly granted, i § 936. An injunction wMch is merely ancillary to the main purpose of the bill, will be dissolved where the principal relief sought can not be obtained. Thus, where the bill seeks- the specific performance of a contract, and an injunction is granted as auxiliary to this purpose, if it appears that the contract is not concluded or certain in all its parts, so that it can be spe- cifically enforced, the, injunction will be dissolved for want of equity in the bill.^ § 937. While, as we have already seen, the jurisdiction of equity for renewing or reviving injunctions improperly dis- solved is freely exercised, yet complainant may, by his own acts, be estopped from receiving the aid of a court to restore an injunction upon the grounds on which it was originally granted. Thus, where the dissolution is had without the authority or consent of complainant, but is afterward recog- nized and acted upon by him, the writ will not be renewed, unless upon new and special reasons being shown for the exercise of the jurisdiction, which did not exist when the injunction was originally granted, or when it was dissolved. ^ § 938. While there is much conflict of authority as to the right of injunction against an illegal or unauthorized tax, yet if the writ has been granted, it will be dissolved upon the tax being legalized by legislative authority. And where a perpetual injunction is granted to restrain the payment of a bounty voted by a town meeting to drafted men or their substitutes for the military service, it may be dissolved after the passage by the legislature of an act legalizing the bounty.* § 939. Mere irregularities in the service of an injunction constitute no ground for its dissolution, since it is sufficient that defendant is apprised of its existence. Thus, the fact that the writ was served upon defendant beyond the jurisdiction of the court, and in a manner different from the usual and ' Turpin v. Jefferson, 4 Hen. & M. 483. " McKibbin v. Brown, 1 McCart. 18. ' Livingston t. Gibbons, 5 Johns. Ch. 350. ' Bartholomew v. Harwinton, 33 Conn. 408. CHAP. xx.J DissoLtrnoN. 547 settled practice, is not sufficient reason for a dissolution, i And upon a motion to dissolve on the ground of defective service, the sheriff's return is conclusive, and the court will not allow it to be contradicted by affidavit, unless fraud or collusion is shown. * No;- will any informality in the service of notice of the motion for a preliminary injunction avail defendants upon a motion to dissolve upon the coming in of the answer, since, in conformity with the general principles of pleadings, such informality is waived by the appearance and answer of defendants.* § 940. Where the material matters which were relied upon in obtaining an injunction, are contradicted by the records of the coiirt, and the injunction was obtained on a misrepresenta- tion of the facts, it will be dissolved regardless of whether such misrepresentation occurred through inadvertence, misin- formation or otherwise.* But where it is sought to dissolve an injunction on account of delay and laches on the part of complainant, if the delay has been caused through inadvertence and mistake, and no evidence of willful procrastination appears, the injunction will not be dissolved.^ § 941. Though a motion to dissolve a temporary injunction wiU not usually be entertained until after answer filed, yet if the motion is interposed before answer, it is regarded in the nature of a demurrer, by which defendant admits the truth of ail the allegations relied upon as a foundation for the injunc- tion.* Thus, a motion to dissolve the injunction on the ground of insufficiency in the allegations of the bill, operatec as a demurrer, and admits the truth of all the facts alleged.' § 942. Want of diligence on the part of complainant in prosecuting his cause, may, as we have already seen, afford ' Corey «. Voorhies, 1 Green Ch. 5. 'Id. * Brammer v. Jones, 3 Pish. 340. * Bndicott v. Mathis, 1 Stockt. 110. ' Schermehom «. L'Espenasse, 3 Dall. 360. « Titus i>. Mabee, 25 111. 357; Jenkins v. Pelton, 9 Rob. La. 300. And sec Schwarz v. Sears, Harring. Mich. 440. '' Jenkins n. Felton, 9 Rob. La. 200. 648 iNJTiNcnoNa. [chap. xx. ground for dissolving an injunction. Yet it is to be observed that the rule is applicable only where defendant is so situated that he can not expedite the cause himself. If, therefore, defendant is in such a position that he can proceed, the reason for the rule no longer exists and the rule itself falls ; cessat ratio, cessat ipsa lex.^ But vs^here defendants, having no personal knowledge of the equities of the bill upon which the injunction was granted, deny them upon information and belief, complainant having neglected to make a party defendant who was personally cognizant of the facts, and who should have been joined in the bill, the injunction will be dissolved.^ § 943. If the question involved on an application for a dissolution is not a question of fact, but one of law, as, for example, concerning the legal interpretation and construction to be placed upon certain mining rights, which from their nature are such that the answer can not deny the equity of the injunction, so as to bring the case within the established rule to entitle complainant to a dissolution, the motion will be refused, although the injunction may be modified to meet the exigencies of the case.^ But the party in whose favor an injunction has been granted may at any time withdraw it, and its discontinuance depends entirely upon his pleasure.* § 944. When a proper ground for the injunction is admitted by the answer, or sufficient equity is conceded by the answer as a foundation for the writ, and there yet remains an unsettled dispute between the parties, the injunction will not be dissolved, but will be continued until the hearing or farther order of the court. ^ Nor is the plea of the statute of limitations, in the answer, sufBcient cause to entitle defendant to a dissolation.* § 945. While the verification of an injunction biU by the oath of complainant, or other person cognizant of the facts, is ' Schermerliom v. Merrill, 1 Barb. 511. ' De Groot v. Wright, 3 Halst. Ch. 516. • Boston etc. «. New Jersey etc., 3 Beaa. 215. • Duckett V. Dalrymple, 1 Rich. Law, 143. ' Chase v. Manhardt, 1 Bland, 333. • Hutchins v. Hope, 12 Gill & J. 245. OHAP. XX.J DISSOLUTION. 649 always requisite, yet if there are several complainants, the oath of any one of them will suffice. It follows^ therefore, that an injunction will not be dissolved on the ground that one only of several complainants has sworn to the truth of the aver- ments in the bill, since the oath of any one of several joint complainants is sufficient to meet the requirements of the rule.i ' HempMll v. Kuckersville Bank, 3 Geo. 435. 550 DWUNOTTONB. [OHAP. XXI. CHAPTEK XXI. OF THE BOND AJCTD REMEDY THEREON. I. Of the Bond in genekai/. II. Bbmbdt upon the Bond. III. Damages. I. Of the BoMD in GEaiERAI,. § 946. Object and purpose of the bond. 947. Discretion of the comt in the absence of statute. 948. Order ineffectual until bond is given; bond operative from time of filing. 949. Insufficiency of bond. 950. Extent of liability. 951. Consideration ; condition broken by dissolution in part. 953. New bond, wben required. 953. Liabilities of sureties. 954. Liabilities, of sureties. § 946. Tlie complainant in an injunction suit is usually required, as a condition precedent to obtaining an interlocu- tory injunction, to file a bond, with sufficient sureties, con- ditioned for the payment to defendant of all costs and damages that may accrue to him in the event of the injunction being improperly issued. These bonds being regulated by statute, differ in the different states, their general purpose and object, however, being everywhere the same, viz., to protect defendant from any wrongful interference with his rights, and to reim- burse him for all damages and costs incurred by reason of an injunction improperly issued. § 947. In the absence of any statute prescribing the con- ditions of an injunction bond, it rests in the discretion of the OHAP. XXI. j BOND AKD EEMEDT. 561 court to fix the terms upon which the relief may be granted, and: where complainant gives such bond as is required by the court, and fails to prosecute his suit successfully, he is liable for all damages sustained by reason of the injunction.^ And it has been held that where complainant's right is clear and the infraction of that right is satisfactorily established, no security need be required to protect defendant against such damages as may be incurred by reason of the injunction.^ § 948. An order for an injunction is considered ineffectual until the required bond is executed, and it has even been held that the order need not be regarded until the security is given, s The bond becomes operative and the obligation thereunder attaches from the time of filing it with the proper officer of the court.*- And the protection afforded by the bond extends to aU defendants in the injunction suit, regard- less of whether they. were served with process, provided they conform to the requirements of the injunction. ^ § 949. Insufficiency of the bond does not of itself consti- tute ground for a dissolution of the injunction in the first instance, but a reasonable time should be allowed for filing a new bond, the injunction meanwhile continuing in force.' Indeed, a motion to dissolve based upon the inadequacy of the bond, would seem to be not well founded, where there is no suggestion that complainant is insolvent and unable to respond individually in damages, since it is always competent for the court to require additional security.'' And where the writ is properly granted in other respects, it will not be reversed because the bond is for an insufficient sum, if the defendant is not injured thereby. ^ Nor is the bond vitiated by the inser- tion of conditions which, though not required by law, are ' Newell V. Partee, 10 Humph. 335. " Dodd V. Plavell, 3 0. E. Green, 255. ' Pell v. Lander, 8 B. Mon. 554. * Lothrop «. Southworth, 5 Mich. 436. " Cumberland etc. v. Hoffman etc., 39 Barb. 16. ' Beauchamp v. Supervisors etc., 45 111. 274 ; Gamble ». Campbell, 6 Pla 347. ' Crawford «. Paine, 19 Iowa, 173. ' Drake «. Phillips, 40 111. 388. 552 mjTiNcnoNS. [chap. xxi. nevertheless not contrary to law, such conditions being regarded merely as surplusage, i § 950. Where the bond is conditioned for the payment of the judgment enjoined, the obligors will be held liable at law for this amount, although complainant may have been so far justified in resorting to equity as to preclude a decree against him for damages upon dissolving the injunction. ^ But where the purpose of the injunction is merely to restrain the sale of a specific article of property under execution, a bond given by one not a party to the judgment is considered in equity only as a security to the obligee for such injury as may actually accrue, and not for the whole amount of the debt, even though it be so conditioned.^ § 951. The suspension and delay occasioned by an injunc- tion are considered as a sufiieient consideration, prima facie, for the bond.* And it is held that the condition of the bond is broken by a dissolution of the injunction in part, as well as by a total dissolution, so that a right of action may accrue, although the Avrit has not been wholly dissolved. ^ And in an action upon the bond, the court will not examine the grounds on which the injunction was awarded, and will not inquire whether the writ was properly or improperly issued.* § 952. In continuing an injunction, a court of equity may require additional security, or a bond with new and enlarged conditions. And it may order the new bond to be given in place of the old and as a substitute for it, and the old bond may thereby be discharged without the consent of the obligee.' But if the order of the court be not substantially complied with, as where by mistake of the clerk the new bond is con- ditioned merely for the payment of the costs, the former bond is not discharged." ' Johnson «. Vaughan, 9 B. Men. 217. " Hunt v. Soobie, 6 B. Men. 469. = Hanley v. "Wallace, 3 B. Mon. 184. ' Mahan v. Tydings, 10 B. Mon. 351. ' White «. Clay's Exi-'s., 7 Leigh, 68. = Bowling v. Polack, 18 Cal. 625. ' Kent «. Bierce, 6 Ohio, 336. 8 Kent V. Bierce, 7 Ohio, 2d part, 209. CHAP. XXI. J BOND ASD REMEDY. 653 § 953. The sureties in an injunction bond are estopped from denying that the injunction recited in the bond was granted. 1 If or can they, in an action upon the bond, plead that an execution was sued out on the judgment enjoinedj and satisfied by a levy before final decree in the. injunction suit.^ And where the sureties are bound for the performance of silch final decree as may be rendered againpt their principal, on the death of the complainant and the revival of the cause by his administrator they are equally bound for the satisfaction of whatever decree may be rendered against him.^ § 954. The contract of a surety upon an injunction bond is within the statute of frauds and is to be strictly construed; parol evidence is therefore not admissible to add to, vary, or contradict it in any of its terms.* And while it has been held that a misrecital in the condition of the bond as to the amount of the judgment enjoined may be corrected by the bill, where the bond contains a plain reference to the bill, upon the principle of id cerium est quod ceriimi reddi potest,^ yet the better doctrine seems to be that the liability of the surety is strictly limited to his undertaking, and that such misrecital can not be corrected.* ' Fowler v. Scott, 11 Ark. 675. 2 Id. »Id. * "Williamson's Adm'rs. ■». Hall, 1 Ohio St. 190. 5 Id. 6 Hall v. Williamson's Adm'rs. 9 Ohio St. 17. 664 INJTJKOTIONS. fCHAP. XXI II. Eemedt itfon the Bond. § 955. Remedy at common law. 956. When right of action accrues ; parties. 957. Riglit of recovery co-extensive with conditions of bond. 958. Defendant's election on dissolution of injunction against judgment. 959. Obligors not allowed to defend on ground of equity of the injunci tiou, or solvency of principal. 960. No right of action until writ issues ; effect of conditions. 961. Eflfect of want of jurisdiction in court granting the injunction. § 955. Some conflict of authority exists as to wlietlier a defendant in an injunction suit may, by an action on the case, recover damages for having been enjoined without cause, and the rule has been broadly stated that no such right of action exists, and that his only remedy is by suit upon the injunction bond.i The better doctrine, however, seems to be that defend- ant's right of action at common law is not merged in the remedy upon the bond, and that an action on the case will ie.2 But to support such action, the plaintifl:''s pleadings nust clearly negative the existence of probable cause for the njunction; it will not suffice to allege that the writ was imjustly and wrongfully sued out, but there must be distinct allegations of a want of probable cause. ^ § 956. Upon the dissolution of an injunction and failure on the part of the obligors to comply with the conditions of the bond, a right of action at once accrues.* Nor is it necessary that the obligee should first sue out an execution upon the decree dissolving the injunction, before instituting proceedings at law for a recovery upon the bond, but he may proceed immediately upon the dissolution.^ The action is properly' ' Gorton n. Brown, 37 111. 489. ' Cox «. Taylor's Adm'r.; 10 B. Mon. 17. 'Id. * Tallahassee etc. e. Hayward, 4 Ma. 411 ; Sizer «. Anthony, 32 Ark. 465. " Sizer s. Anthony, 33 Ark. 465. CHAP. XXI.J BOND AND EEMEDT. 555 brought in the name of all the joint obligees, although it be in fact only for an injury or loss occasioned to one of them.^ § 957. The right of recovery upon the dissolution of an injunction, may be said to be co-extensive with the conditions of the bond upon which the writ issued, and resort must be had to that in determining the extent of the liability. Thus, in the ease of an injunction restraining proceedings under a judgment, though the statute requires a bond conditioned for the payment of the judgment, as well as damages and costs, yet if in fact the, bond was taken for damages and costs only, the sureties will not be held beyond that for the amount of the judgment itself. ^ § 958. Upon the dissolution of an injunction to a judgment at law, the party enjoined may, at his option, proceed with his judgment and execution, or may follow his remedy upon the injunction bond, and if he elects to proceed with the judg- ment, it has been held that he thereby waives all remedy against the sureties in the bond.^ But where an injunction has been dissolved and afterward reinstated, no action will lie upon the bond as for a breach of its conditions, since the new injunction is regarded as but a continuation of the same cause, 1 § 959. In an action upon a bond conditioned for the pay- ment of the judgment enjoined, the obligors in the bond will not be allowed to defend on the ground that complainant had suiScient equitable grounds for obtaining his injunction.^ Nor does the fact that the principal in the bond is solvent and perfectly able to meet his liabilities, constitute any defense, in mitigation of damages or otherwise, to an action against the sureties in the bond.* § 960. Until the writ of injunction is issued and the defendant is actually restrained thereby, no cause of a.ction ' "Watts «. Sanders, 10 B. Mon. 373. " Ashby «. Tureman, 8 Lit. 6 ; Ferguson v. Tipton, 1 B. Mon. 28. ' Porteous ». Snipes, 1 Bay, 315. * Bentley «. Joslin, Hemp. 218. ' Hughes' Adm'r. ■». Wickliflfe, 11 B. Mon. 202. « Hunt «. Burton, Adm'r., 18 Ark. 188. 556 INJTJHCTIONS. [chap. XXI. can exist on the bond, although it has been duly approved and filed. 1 And where an injunction is ordered, but not yet issued, upon condition of complainant giving bond with suf- ficient security, with which condition he fails to, comply, it is error to decree damages against him as upon a dissolution. ^ ITor can there be any recovery upon a bond conditioned that complainant will prosecute the injunction suit with effect, in a case where, at the time of filing the bill, there was sufficient ground for the injunction, which is afterward removed by curing a defect in title and the injunction is dissolved, since complainant is regarded in such case as having prosecuted his action with effect.^ § 961. Want of jurisdiction in the court or officer granting an injunction, constitutes no valid defense to an action upon the bond after a dissolution.* And where an Injunction has been allowed to restrain proceedings under a judgment, while the want of jurisdiction in the court granting the writ may render the obligation void as a statutory bond, it will still be held good as a common law obligation, the obligor having voluntarily given the undertaking and delayed the enforcement of the judgment. 5 ' Eakle v. Smith, 27 Md. 467. ' McCoun V. Delany, 3 Bibb, 440. » "Watts «. Sanders, 10 B. Mon. 373. ' Hanna s. McKenzie, 5 B. Mon. 314; Stevenson v. Miller, 3 Lit. 306. ' Hanna ii. McKenzie, 5 B. Mon. 814. OHAi'. XXI. J BOND AOT) EEMEDT. 557 III. Damages. S 963. General power of court of equity as to ascertaining damages. 963. Limit as to damages ; construction of bond. 964 Direct damages only allowed. 965. Limitations upon amount of damages. 966. Rule as to estimating damages and interest. 967. Expense of procuring dissolution ; hindrance in collection of debt 968. Percentage on judgments enjoined. 969. Order of dissolution necessarily implies damages. 970. Damages on dissolution of injunction to judgment. 971. Sales of property, rule as to damages. 973. Injunction against suit on promissory note. 973. Counsel fees, rule as to allowing. 974 Limitations upon the rule. 975. Defendant entitled to damages, though not served with process. , 976. Sale under decree in foreclosure, rule as to emblements. 977. Practice in United States courts. 978. Sureties not liable for amount of judgment ; misrecital. 979. Amount of judgments not included in damages. 980. Kule where injunction was rightfully obtained. 981. Action on bond will not lie until final determination of cause. § 962. Independent of statutory enactments, a court of equity has the power upon the dissolution of an injunction to ascertain, by reference to a master, or otherwise, the amount of damages caused to defendant by -the injunction, and to decree payment of this amount. Such a proceeding is entirely independent of and distinct from any action which may be brought upon the bond, the rights under the decree being regarded as cumulative only, and not impairing in any way the remedy upon the bond itseK. > And in decreeing damages ' Sturgis v. Knapp, 33 Vt. 486; Edwards v. Pope, 3 Scam. 465; Eobertsu. Dust, 4 Ohio St. 503. But see, contra, Phelps v. Foster, 18 111. 309. In this case Caton, J., delivering the opinion of the court, says : " I have, with considerable reluctance, come to the conclusion that the court exceeded its power in awarding damages to the defendant and against the com- plainant. Except in the case of an injunction to restrain a judgment at law, I can find no warrant in the statute for awarding damages upon the 658 mjuNcnoNS. [chap, xxi.- upon a dissolution the precise amount should be specified, and it is error to award the damages in gross. ^ § 963. Where the practice prevails of decreeing damages upon the dissohition, it is held that the (5ourt can not go beyond the bond and award greater damages than the penalty therein fixed. 2 And when a court of equity has awarded damages upon dissolving an injunction, its decree is held to be conclusive as to the ' amount which can be recovered in an action upon the bond. In such action the surety is bound by the decree, and will not be permitted to show in defense that less damages were sustained than the amount awarded by the decree, since this would re-open the whole subject matter of the decree.* And if the damages to the different parties against whom the injunction issued are several and distinct in their nature, the bond will be held to be a several obligation, although its language might be construed to cover merely an obligation to the defendants jointly.* § 964. In estimating damages sustained by the improper issuing of an injunction, courts proceed upon equitable grounds, and while it is difficult to fix any precise rule or standard for determining the damages upon dissolution, it may be said generally that nothing will be allowed which is not the actual, natural and proximate result of the wrong com- mitted. ^ And where no damages have been actually incurred. dismissal of an injunction bill, and I can not find authority for sustaining it in the practice of the English Court of Chancery. The general prin- ciples of equity jurisdiction are against it. It is granting afBrmative relief to the defendant, without a cross bill, and when the pleadings do not justify it. I regret that it is so, for I think this power almost indispensable as a check upon the too free and dangerous use of this writ, which is liable to great abuse, linless the greatest circumspection is used by those invested with the high power of awarding it, which, I regret to say, has not always been the case." ■ White's Ex'rs. i>. Guthrie, 1 J. J. Marsh. 603; Stagner d. Fox, lb. 656; "Ward V. Davidson, 3 J. J. Marsh. 443 ; Booth v. Eogers, lb. 516. ' Sturgis 11. Knapp, 33 Vt. 486. ' Lothrop V. Southworth, 5 Mich. 486. • Sturgis «. Knapp, 33 Vt. 486. ' Collins 1). Sinclair, 51 111. 338; Brown v. Jones, 5 Nev. 374 CHAP. XXI.J BOMB AOT) EIMEDT. 559 none stould be assessed. ^ In other words, the liability upon the injunction bond' is limited to such damages as arise from the suspension or invasion of vested legal rights by the injunction. Speculative and remote damages are not properly allowable, nor~areTEose^McE~are merely consequential, the iimit^^eing such damages as flow directly from the injunction as its immediate consequence.^ Thus, remote and contingent" benefits that might" have accrued from the increased value of property resulting from the opening of a street, which has been enjoined, will not be taken into account in a'n action upon the bond.''' And the only damages which can be recovered are such^ as arise frorn^ the operation_pf the injunction itself, and not such, as are oc casioned by the suit independent of the injunction.* But where an injimction operates to delay the sali~of property, real and personal, and pending such delay great depreciation occurs in the value of the property, such loss, being regarded as occasioned by the injunction, may be properly included in estimating the damages incurred. ^ § 965. In a suit upon the injunction bond, the recovery for costs and expenses incurred by reason of the injunction, is limited to such as accrued between the time of the issuing of the writ and the time of its dissolution," and no damages are allowed during the pendency of an appeal to a higher court.' And where a judgment at law has been enjoined, the judgment creditor is entitled upon dissolution to damages only on so much of his judgment as remained due, and the collection of which was delayed by the injunction. ^ § 966. In estimating damages after the dissolution of an injunction against a judgment, they should be computed upon the aggregate amount of principal, interest and costs due at • Uhrig V. St. Louis, 47 Mo. 538. ' Steuart «. State, 30 Md. 97; Morgan v. Negley, 53 Pa. St. 153. And see Brown «. Jones, 5 Nev. 874; Collins v. Sinclair, 51 111. 838. » Steuart v. State, 20 Md. 97. ' Burgen v. Sharer, 14 B. Mon. 497. " Meysenburg o. Schlieper, 48 Mo. 436, second edition, 399. ' "Wallis V. Dilley, 7 Md. 337. ' Woodson 1). Johns, 8 Munf. 380; Jeter v. Langhorn, 5 Grat. 193, ' Southerland v. Crawford, 3 J. J. Marsh. 370. 560 rtTjTmcmoNS. [chap. xxi. the time the injunction took effect, i And interest upon the amount of the judgment during the time it was enjoined, or upon the whole sum, the collection of which was suspended by injunction, is allowable. ^ But after the dissolution of an injunction to a judgment at law, the judgment creditor will not, in an action upon the bond, be allowed interest on the amount of the judgment, if it has been fully satisfied.^ "Where, however, payment of money justly due has been enjoined, interest is recoverable as a matter of right up to the time of payment into court on dissolution of the injunction.* § 967. In assessing damages in an action upon the injunc- tion bond, a reasonable sum may be allowed for expense and trouble incurred in procuring a dissolution. ^ And where one has been frustrated and hindered in the collection of his debt by the wrongful suing out of an injunction against Ms execution, the surety in the bond is liable for damages thereby incurred, not exceeding tlbe penalty named in the bond. ^ § 968. "Where, as in some of the states, it is provided by statute that a certain percentage of judgments enjoined shall be assessed as damages on the dissolution, one not a party to the judgment, but who enjoins proceedings under it, is liable for the percentage as if he were a party. '' It is held, however, that statutes allowing such a percentage of damages upon the dissolution of an injunction to a judgment at law, are to be Construed strictly as applicable to judgments alone, and not as including injunctions to decrees in chancery. ^ § 969. The payment of damages is considered as a penalty for failure to sustain an injunction, and it is held that the order of dissolution necessarily imports that the damages are to be paid, unless it expressly remits them.' And where the ' Wasliington'a Ex'r. v. Parks, 6 Leigh, 581. ' Gist V. McGuire, 4 Har. & J. 9 ; Aldrich b. Reynolds, I Barb. Cl». 613. ' Grundy v. Young, 2 Cranch C. C. 114. « Wallis V. Dilley, 7 Md. 237. ' Pargoud v. Morgan, 2 La. 100. » Day V. Martin, 7 La. 365. ' Claytor «. Anthony, 15 Grat. 518. 8 Head v. Perry, 1 Monr. 253 ; Martin i). "Wade's Ex'rs., 5 Monr. 77. ' Claytor «. Anthony, 15 Grat. 518. OHAP. XXI. BOND AHD EEMEDY. 661 bond is conditioned for tlie payment of such damages as the court may award, and the court simply dissolves the injunction and dismisses the bill without decreeing any damages, the order of dissolution necessarily implies that the damages must be paid.i So a bond conditioned for the payment of such costs and damages as may be awarded against complainant in case the injunction is dissolved, authorizes a recovery of the damages and costs incurred, whether awarded upon the dissolution, or afterward, or in a different proceeding. ^ § 970. Damages on the dissolution of an injunction against a judgment at law form, as to the party obtaining the injunc- tion, a part of the judgment, and are embraced within its lien.^ And in computing damages upon the dissolution of an injunction, the taxable costs of so much of the proceedings in the injunction suit as were necessary to procure the dissolu- tion may properly be included.* But a statute providing that upon the dissolution of an injunction the court shall immedi- ately enter up judgment against the sureties as well as the principal, is unconstitutional and void.^ § 971. An injunction against the sale of property under a deed of trust, is not necessarily a proceeding restraining the collection of money, and damages in such ease are not to be estimated under a statute prescribing a fixed rate of damages on the dissolution of injunctions restraining the payment of money, but they should be computed according to the degree of injury actually sustained. ' In all such cases the amount of injury should be determined by proper evidence, taking into consideration the probable amount that might have been realized had the sale not been enjoined, the value of money at ' Claytor «. Anthony, 15 Grat. 518. But see Ashby ■». Chambers, 3 Daua, 437, where it is held that there can he no recoveiy upon an injunction bond conditioned for the payment of such damages as shall be awarded, where none have been decreed upon the dissolution of the injunction. "Hibbard «. McKindley, 38 111. 340; Brown v. Gorton, 81 111. 416; Edwards ■». Ijiwards, lb. 474. ' Michaux's Adm'r. v. Brown, 10 Grat. 612. * Aldrich «. Keynolds, 1 Barb. Ch. 613. ' Hughes V. Hughes' Adm'r., 4 Monr. 43. « Kennedy's Adm'x. v. Hammond, 16 Mo. 341. 36 662 iNjuNdnoNS. [chap. xxi. the time, and such other circumstances as tend to show the actual damages sustained. i But it is improper to allow the diiference in the value of United States treasury notes at the time of granting and of dissoMng the injunction, as compared with the market value of gold coin.^ § 972. Upon the dissolution of an injunction to an action at law on a promissory note, the bond being conditioned for the payment of all damages which may result to the party enjoined by reason of the injunction, plaintiffs should be allowed their taxable costs during the time they were delayed by the injunction, both in the action at law and the suit in equity, provided such costs can not be realized from the parties prosecuting the injimction suit.^ § 973. A reasonable amount of compensation paid as counsel fees in procuring the dissolution of an injunction, may be recovered in an action upon the bond, if the injunction was improperly or wrongfully sued out, the amount being limited to fees paid counsel for procuring the dissolution, and not for defending the entire case. Counsel fees in such cases are regarded as a proper subject of consideration in estimating the damages incurred, the loss being as direct and immediate as any other.* And under a statute requiring the court, after dissolving an injunction, upon a suggestion of damages being filed by the injured party, to assess the damages sustained by reason of the injunction, it is not error to include counsel fees for defending the injunction suit.^ § 974. While a reasonable compensation as counsel fees in procuring the dissolution may be allowed and recovered in an action upon the bond, it is improper to include fees paid to ' St, Louis V. Alexander, 23 Mo. 483. ^ Riddlesbarger «. McDaniel, 38 Mo. 138. s Deny Bank v. Heath, 45 N. H. 524. * Behiens ®. McKenzie, 33 Iowa, 338; Edwards v. Bodine, 11 Paige, 334; Coates V. Coates, 1 Duer, 664; Corcoran «. Judson, 34 N. T. 106; Aldrich V. Reynolds, 1 Barb. Ch. 613; AhTIiaie e. Quan Wan, 3 Cal. 316; Prader V. Grim, 13 Cal. 585 ; Garrett «. Logan, 19 Ala. 344; Derry Bank v. Heath, 45 N. H. 534; Ryan v. Anderson, 25 HI. 373; Collins «. Sinclair, 51 lU. 328; McRae v. Brown, 13 La. An. 181; Brown e. Jones, 5 Ncv. 374. ' Misner v. Bullard, 43 111. 470. CHAP. XXI.J BOND Aim BEMEDT. 563 counsel for defending the entire action to wliicli the injunction was merely ancillary. ^ And where no counsel fees have been paid, the defendant, a municipal corporation, defending by its salaried attorney without fee for his services, no counsel fees should be allowed. ^ ISTor can defendant lay the foundation for larger damages by employing an unnecessary number of counsel.^ But to warrant a court in the allowance of counsel fees for procuring a dissolution, it would seem not to be neces- sary that the fees should have been actually paid; it will suffice that the services have been rendered and the liability incurred.* § 976. An injunction bond being for the benefit of all the defendants enjoined, regardless of whether they are served with process, to entitle one to damages upon a dissolution, it is suf- ficient that he has rendered himself obedient to the injunction, though the writ may not have been served upon him, and he is then entitled to a reference to ascertain his damages. ^ Nor will the want of jurisdiction in the court over the subject matter of the action in which the injunction was granted, deprive defendant of his right to damages on the dissolution.^ § 976. Where a mortgagor obtains an injunction to prevent the mortgagee from selling the premises under a decree in fore- closure, and pending the injunction the mortgagor removes emblements from the premises, the value of the emblements should be included in the damages awarded to the mortgagee upon dissolution.' § 977. The obligor in an injunction bond given in proceed- ings in the United States courts, will not be subjected to the laws of the state in fixing his liability upon the bond. And although the state practice permits the assessment of damages ' Langwortliy v. McKelvey, 35 Iowa, 48. = Uhrig v. St. Louis, 47 Mo. 538. ' Collins «. Sinclair, 51 111. 338. * Garrett v. Logan, 19 Ala. 344; McEae v. Brown, 13 La. An. 181 ; Brown V. Jones, 5 Nev. 374. But see, contra, WlUson ». McEyoy, 35 Cal. 169 ; Tra- der «. Grimm, 38 Cal. 11. ' Cumberland etc. v. Hofiinan etc., 89 Barb. 16. «Id. ' Aldricb v. Eeynolds, 1 Barb. Ch. 613. 664 iNJUNonoNS. [ohap. xxi. and entering of a decree thereon against the obligor immedi- ately upon the dissolution of the injunction, such practice will not be recognized in the United States courts. ^ § 978. If the bond is conditi9ned that the obligor shall pay all sums of money, damages and costs that may be awarded against him in case the injunction is dissolved, the sureties are not liable for the amount of the judgment enjoined, if that be not adjudged against the obligor upon. the dissolution. 2 Nor will a misrecital in the bond as to the terms of the injunction and its extent, subject the surety to payment of judgments at law, if from the injunction it appears that the collection of the judgments was not eiy'oined.* § 9T9. "Where a judgment creditor is enjoined from proceed- ing against certain specific property claimed by a third person, a stranger to the original suit, without interfering with the remedy against other property or against the person of the debtor, who is not made a party to the bill, the court will not, on dissolving the injunction and dismissing the bill, decree the amount of the judgment as a penalty against complain- ants.* So if the injunction is dissolved only as to a portion of the property affected by the writ, which portion has not depreciated in value, and is afterward sold on execution and the proceeds of the sale are applied on the judgments, com- plainant should not be decreed to pay both the amount of the judgments and the penalty. ^ And where complainant enjoins the sale of his own property under executions against a third person, leaving the executions otherwise in full force as to the debtor's property, the measure of damages in an action upon the bond is the real loss actually incurred, with costs, and not' the amount due on the executions.*' § 980. Where an injunction is perpetuated in part, com- plainant should not be compelled to pay the costs, since he is ' Bein «. Heath, 13 How. 168. ° Corder «. Martin, 17 Mo. 41. = Hord v. Trimble, 1 Lit. 413. * Portsmouth etc. ®. Byington, 13 Ohio, 114. » TenSv. Hewitt, 1 Ohio St. 511. « Hord t). Trimble, 1 Lit. 413. CHAP. XXt.] BOND AND REMEDY. 665 the prevailing party in so far as the injunction is allowed to stand, and it is error to decree costs against him.i And in general, wherever an injunction is rightfully obtained upon saiEcient grounds, and is afterward dissolved upon the removal of those grounds, complainant should not be required to pay damages upon the dissolution, having had good cause for the injunction in the first instance.^ Thus, where judgments for the purchase money of real estate are enjoined on the ground of defective title, and a dissolution is granted upon the title being made good, no damages should be allowed against complainant. 3 § 981. An injunction obtained by the plaintiff in an action at law, to preserve property pendente Ute, being dis- solved, no reference should be allowed to ascertain damages sustained by defendant by reason of the injunction until the suit at law is determined, since it can not be known until the action is determined whether the plaintiff may not recover in- the action at law.* And it may be laid down as a general rule, that no action at law can be maintained upon the bond until the final determination of the cause in which the injunc- tion issued, even though the injunction has been dissolved upon appeal and the cause remanded for further proceedings, since complainant is still entitled to proceed with his cause, and may on final hearing establish his right to an injunction. ^ ' Ross ■». Gordon, 2 Mvmf. 289 ; Hoofman v. Marshall, 1 J. J. Marsh. 64. ' McKoy V. Chiles, 5 Monr. 259 ; Payne v. Wallace, 6 Monr. 381 ; Porter V. Scobie, 5 B. Mon. 387 ; Lampton v. Usher's Heirs, 7 B. Mon. .57 ; Fish- back v. Williams, 3 Bibb, 342. ' Porter v. Scobie, 5 B. Mon. 387 ; Lampton v. Usher's Heirs, 7 B. Mo» 57; Fishback v. Williams, 3 Bibb, 343. * Thompson «. McNair, 64 N. C. 448. ' Gray «. Veirs, 33 Md. 159. 566 INJUKOTIONB. [chap. XXII. CHAPTEK XXII. OF PRACTICE. I. Practice in gkanthtg Injxwctions. II. Ambitdments. III. Practicb nr DissoLTraa Inotinctioits. I. PeACTICE m GEAUnNG iNJinSCTIONS. § 982. Practice largely dependent upon statutes and local usage. 983. Writ usually granted on bill ; may be granted on petition. 984. Verification of tlie bill. 985 Verification of bill by corporation. 986 Requisites of the verification. 987 Wben verification may be dispensed with. 988 Injunction must be specifically prayed. 98&. Wlien the writ may be granted. 990. All facta and documents must be brought to the attention of the court. 991. Introduction of afiBdavits in opposition to the motion. 992. Introduction of afladavits in support of the bill. 993. Notice of the application. 994. Notice of the application upon a supplemental bill. 995. Writ only allowed upon positive averments. .996. Form of the writ. § 982. Questions of practice connected with tlie granting and dissolving of injunctions are so largely regulated by statute and local usage in the different states, that but few rules of general application can be deduced from the decided cases. The most that can be attempted in this direction, is to present Such leading principles as are believed to be generally lecognized by courts of equity in administering relief by injunction, leaving the practitioner to be guided by local rules as to the details of practice. CHAP. xxn.J HtACncE; 567 § 983, Interlocutory injunctions are generally granted upon the filing of a bill, properly Terified, in wliicli complainant sets forth the equities on which he bases his right to relief, the bill concluding with a prayer for an injunction. Where, however, a court of equity is already in possession of a cause, having jurisdiction both of the subject matter in controversy and of the parties, it may enforce obedience to its mandates by an injunction issued merely upon a petition in the cause and without the filing of a bill.i § 984. The proper verification of the bill is a matter of importance, since an injunction is seldom allowed upon other than a sworn bill. Nor will it suflSce that the material facts constituting the equity on which the injunction is sought are verified by complainant iipon information and belief, but they should be positively sworn to.^. And where, upon an ex pa/rte application for an interlocutory injunction, complainant states the facts on which his equities rest upon information and belief, he should present affidavits of their truth from the persons of whom his knowledge is obtained and who can swear positively to the facts.* An exception, however, is recognized in the ease of an injunction in aid of a creditor's bill against the judgment debtdr alone, no third ' parties being joined as defendants, and in such case it is sufficient if complainant swears upon information and belief as to the recovery of the judgment and return of execution rmlla iona.^ The exception rests upon the fact that the judgment and execution are matters of record, to which defendants are parties, and complainant is not required to swear positively as to the existence of the records.^ So, too, the verification of an injunction bill in aid of a creditor's ' In the matter of Hemiup, 2 Paige, 316. ' Campbell ■». Morrison, 7 Paige, 157 ; Keboul's Heirs d. Behrens, 5 La. 79; Oatlett v. McDonald, 13 La. 44. ' Campbell v. Morrison, 7 Paige, 157 ; Bank of Orleans v. Skinner, 9 Paige, 305 ; Youngblood «. Scbamp, 3 McCart. 42. * Hamersley n. WyckoflF, 8 Paige, 73 ; Sizer ■». Miller, 9 Paige, 605. 6 Id. 568 rajmranoNS. [chap. xxn. suit may be made by the attorney who has conducted the proceedings at law.^ § 985. Where an injunction is sought in behalf of a corpo- ration, the bill is usually verified by some officer of the cor- poration conversant with the facts. It may, however, be verified by an attorney or other agent, without the oath of any of the regular officers of the corporation, where such officers are less acquainted with the facts constituting the foundation for the injunction than the agent or attorney. ^ § 986. As to the- nature and requisites of the verification itself, it is held that the affidavit should be such as to submit the party to the penalties of perjury if its allegations prove untrue.^ IS^or will it suffice that the affidavit alleges that the material allegations of the bill are true on knowledge and belief,* or that the party veriiying swears positively to the truth of the material averments, since it is still left uncertain what are the material facts. ^ Neither is it sufficient that the affiant swears that the allegations of the bill which render an injunction necessary are true, since such verification is open to the same objection of uncertainty.' § 987. While the usual course is to grant an injunction .only upon a bill duly verified, it would seem that the oath of complainant or other person conversant with the facts may be dispensed with if the confidence of the court can be otherwise obtained. Thus, documentary evidence establishing complain- ant's equities and his right to relief, will suffice to warrant the court in granting an injunction, and such evidence may be presented by properly verified copies of private instruments, or of records, when such is the appropriate mode of proof And where the right, for the protection of which an injunc- ' Sizer v. Miller, 9 Paige, 605. ' Bank of Orleans «. Skinner, 9 Paige, 305. ' Reboul's Heirs v. Behrens, 5 La. 79 ; Oatlett v. McDonald, 13 La. 44. 'Id. " Sauvinet v. Poupono, 14 La. 87. ' Hebert v. Jolj, 5 La. 50; Ricard'a Heirs v. Hiriart, lb. 344. ' Negro Obwles v. Sheriff etc., 13 Md. 374; Toungblood ■». Schamp, 3 McCart. 43 CHAP. xxn.J , rEAcnoE. S69 tion is souglit, rests upon written instruments, such as prom- issory notes, none of which are exhibited and no reason or excuse is offered for the failure to present them, the relief will' be withheld, although the bill is verified under oath.i And it has been held that a bill for an injunction against a judg- ment at law should make a transcript of the judgment an exhibit in the cause. ^ § 988. The bill should contain a specific prayer for an injimction, since the writ will not be granted under the general pray^ for relief. And the injunction must be asked both in the prayer for relief and that for process; otherwise the bill is demurrable. 3 And though the omission of a specific prayer for the injunction is regarded as a defect in form, yet it is held error to grant the relief upon a bill thus defective.* But the defect may be cured by obtaining leave of the court to amend the bill by adding the necessary prayer. ^ And it is held that an injunction may be allowed upon the hearing, although not prayed for in the bill. * § 989. Interlocutory injunctions are usually granted on the bill alone, before issuing process to the defendant, the allega- tions of the bill being properly verified and the court being satisfied of their truth.' A motion for an injunction may, however, be made at any time before final decree, and for the purposes of such motion the answer of the defendant is regarded merely as an affidavit. ^ And upon the filing of an injunction bill, the defendant may at his option immediately put in his answer to prevent the issuing of the writ, and the court is bound to consider such answer and give it due weight, if filed before the application for the injunction is disposed of: ^ ' Nusbaum v. Stein, 13 Md. 315. " Parsons v. Wilkerson, 10 Mo. 713. ' Lewiston etc. v. Franklin etc., 54 Maine, 403; Union Bank v. Kerr, 3 Md. Oh. 460; Wood v. Beadell, 3 Sim. 373. ' Primmer «. Patten, 83 111. 538. = Jacob B. Hall, 13 Ves. 458; Wood v. Beadell, 3 Sim. 373. « Reynell «. Sprye, 1 DeGex, M. &. G. 660. •■ Jones V. Magill, 1 Bland, 177. 8 Warren etc. v. Clarion etc., 54 Pa. St. 38. » Hall V. McPherson, 3 Bland, 539 ; Krone v. Krone, 37 Md. 77. 570 INJUNCTIONS. [OHAP. XXH. § 990. Where a special injunction is sought, ex parte, complainant should state in his bill all the material facts bearing upon the subject matter in controversy, and should set out all documents having a material bearing upon the case, so far as they touch the right to the relief sought. If he fails or neglects to bring such facts or documents to the attentiori of the court upon the application for the injunction, the court may, on being apprised of such omission, immediately discharge the order for the writ and direct that matters be returned to their former condition, as far as may be done.i § 991. Upon a motion for a preliminary injunction, a defendant who is notified of the application, or required to show cause why the injunction should not issue, may intro- duce affidavits in opposition to the motion, and this regardless of whether a temporary injunction has or has not been allowed in the meantime.^ Upon such motion the answer of one of several defendants may be received and read as an affidavit to contradict the allegations of the bill.^ And a defendant may if he prefer, oppose the motion merely upon his affidavit and without answer.* § 992. The question of the admissibility of affidavits in support of the allegations of the bill, upon a motion for an injunction, has been much controverted, but the doctrine may now be regarded as well established that complainant is entitled to read affidavits in support of his case.^ The rule, however, is limited to affidavits upon questions of fact in dis- tinction from those upon questions of title, since the latter are not admissible to contradict the answer.* And it has been held that affidavits which are not offered until after the filing ' Harbottle u. Pooley, 20 L. T. N. 8.436. 2 Seneca Falls «. Matthews, 9 Paige, 504; Keane. Colt, 1 Halst. Ch. 365. = Shreve «. Black, 3 Green Ch. 177. * Baker t. Taylor, 3 Blatch. C. C. 83. <■ United States ». Parrott, McAll. 271. « United States ®. Parrott, McAll. C. C. 271 ; Morphett is. Jones, 19 Ves. 350. See also Farmer v. Calvert etc. Co., 5 Chicago Legal News, 1. CHAP. XXn.J FEACTICE. 571 of the bill or the coming in of the answer, are not admissible upon a motion for an injunction, i § 993. Where an injunction is applied for after the filing of the bill and after appearance by defendant, it is not neces- sary that defendant should be notified of the application merely because he has entered an appearance.* And where a rule of court requires notice of the application for an injunction after answer filed, such notice may be waived in the exercise of a sound judicial discretion, and the omission of the notice con- stitutes no ground for a dissolution. ^ Nor is the fact that the biU was not filed until after the injunction was ordered, sufiicient to warrant a reversal of the order, the omission being at the most but a mere irregularity which does not afiieet the merits of the cause.* § 994. An injunction should not be allowed on an ex jparte application upon a sxipplemental bill, affecting the rights of a party who has appeared in the cause, but due notice of the application should be given. And if in such case a temporary injunction is necessary to prevent irreparable injury before regular notice of the application can be given, a rule to show cause should be granted at the same time with the granting of the temporary injunction, which falls if the rule be not made absolute.^ And after an injunction has been regularly dis- solved on the coming in of the answer, a motion for a renewal will not be entertained on testimony subsequently taken. ^ § 995. An interlocutory injunction, being a harsh remedy, is only allowed upon such positive averments of complainant's equities as establish a d.&&v prima facie case. And while the party seeking the injunction is not required to establish his right to rehef with the same precision and certainty that are required upon a final hearing, he must in all cases allege posi- ' Brundred «. Paterson etc., 3 Green Ch. 294 ; Leasig v. Langton, Brightly, 191. But see Poor «. Carleton, 3 Sumner, 83. ^ Buckley s. Corse, Saxt. 504. 'Id. * Davis V. Keed, 14 Md. 153. 5 Bloomfleld v. Snowden, 3 Paige, 855. • France «. France, 4 Halst. Ch. 619.' 572 rNjuNcnoNS. [cehap. xxn. tively the facts on whicli lie relies, i Mere argamentative allegations, or inferences from facts stated, will not entitle him to relief. 3 ISTor will general allegations of irreparable injury suffice, where he does not state the facts upon which the allegations are based. ^ § 996. The form of the writ must of course vary with the particular circumstances of each case, the subject matter of the injunction, and the parties enjoined. It should contain a description of the particular acts or things concerning which defendant is enjoined, and should be an authentic notification of the mandate of the court.* The injunction as granted must be such as is prayed for by the biU, and it is not competent for a court of equity to grant an injunction in terms other than those contained in the prayer of the bill.^ II. Amendments. § 997. General rule as to amending injunction bill. 998. Amendment after dissolution. 999. Amendment without prejudice to existing injunction. 1000. Effect of new bill. § 997. While the propriety of allowing amendments to injunction bills has been said to be exceedingly questionable," yet it may be regarded as an established rule that the bill may be amended, even after motion to dissolve the injunction, and if when so amended it shows sufficient cause for continuing the injunction, which is not overborne by ' Perkins v. Collins, 3 Green Oh.. 483 ; Holdrege «. Gwynne, 3 C. E. Green, 36 ; Campbell v. Morrison, 7 Paige, 157 ; Bank of Orleans v. Skinner, 9 Paige, 305; Bogert v. Haight, lb. 397; Jones «. Macon etc., 39 Geo. 138. ' Battle 1). Stephens, 33 Geo. 35. ' Branch Turnpike Co. v. Supervisors, 13 Cal. 190. * Whipple V. Hutchinson, 4 Blatch, 190 ; Summers v. Farish, 10 Cal. 347. • Burdett v. Hay, 33 L. J. Ch. 41. « Calderwood o. Trent, 9 Rob.'La. 337. CHAP, xxn.] njAcncE. 573 defendant, it will be continued. * And it is not error to overrule a motion for a dissolution on the ground of defects in tlie bill, when an amended bill bas been filed curing those defects and taking the place of the original without changing the cause of action. ^ The right to amend should be guarded with the utmost caution by the court, and amendments should be allowed only when the circumstances of the case indicate that the promotion of justice requires this course.' And in all cases the truth of the new allegations, as well as the causes recLuiring the amendment, should be duly verified by affidavit.* And amendments should' never be allowed where they are obviously intended for purposes of delay. ^ § 998. After an injunction has been actually dissolved upon the merits, complainant may still amend his bill and obtain a new injunction upon the bill thus amended.* It is to be observed, however, that after a dissolution has been allowed for want of equity in the bill, the court will not entertain an application, ex parte, for another injunction upon an amended biU, or upon a new one supplying the equity wanting in the first, but will require notice to the defendant. Since, if complainant is willing to swear to a bill fitting the opinion of the court, defendant's rights should not be inter- fered with without allowing him to be first heard. ' § 999. An injunction bill may be amended without pre- judice to the existing injunction, by obtaining leave of court for that purpose, the amendments relating to matters existing prior to the filing of the bill.*' And whenever, pending an ■ Crawford ®. Paine, 19 Iowa, 173. And see Sweatt «. Faville, 33 Iowa, 331. But see Bhodes ■». Union Bank, 7 Bob. La. 68, where it is held that after the filing of a motion to dissolve, complainant will not be allowed to support his original proceedings and give effect to an injunction originally illegal, by new allegations. It is to be observed, however, that in this case the new allegations were not sworn to. " Sweatt D. Paville, 33 Iowa, 331. ' Calderwood n. Trent, 9 Rob. La. 337. 'Id. "Id. ' Buckley «. Corse, Saxt. 504. ' Hornor «. Leeds, 3 Stockt. 86. 8 "Walker v. "Walker, 3 Geo. 303. 574 iNjTOTcrnoMS. [chap. xxn. injunction, an amendment is allowed to the bill, it is without prejudice to the injunction, which still stands, although the order granting leave to amend is silent as to its effect upon the injunction.! But a sworn bill can not be amended bj striking out material allegations, and the amendments are to be made bj the addition of explanatory and supplemental statements. These should be distinctly presented to the court, properly verified under oath, with a sufficient excuse for their not having been presented in the original bill.^ § 1000. "While it is within the province of a court of equity to permit amendments to injunction bills, yet if complainant, instead of amending his original bill so as to sustain an injunction already granted, files what is in fact a new bill, praying for a new injunction, the court may properly dissolve the injunction upon a motion filed before the amended bill, notwithstanding such amendment.^ And if the original bill shows no sufficient ground for the relief prayed, it can not be aided by a supplemental bill presenting matters which have arisen since the commencement of the suit, especially where such matters have no connection with the grounds of relief relied upon in the original bill.* ' Selden v. Vermilya, 4 Sandf. Ch. 573. = Carey u. Smitli, 11 Geo. 539. ° Des Moines etc. v. Carpenter, 27 Iowa, 487. * Fahs e. Eoberts, 54 111. 192. oaAP. xxn.] FEAoncff. 575 III. PRAOnOE IN DISSOLVING INJUNCTIONS. § 1001 Motion to dissolve, when entertained. 1003. Notice of motion to dissolve. 1003. Defendant's answer, wlien excluded. 1004. Objections to sufficiency of answer. 1005. Admission of affidavits on motion to dissolve. 1006. Affidavits not allowed to take the place of answer. 1007. Distinction as to common and special injunctions. 1008. Injunctions against the infringement of patents. 1009. Introduction of affidavits as to new matter. 1010. Exception to rule excluding affidavits on motion to dissolve. 1011. Objection as to insufficient security. 1013. Practice on death of complainant. 1013. Practice on death of defendant. 1014. Continuance of motion to dissolve. 1015. Effect of sworn answer. 1016. Multifariousness of bill ; improper joinder of parties. 1017. Defective verification can not be remedied on motion to dissolve 1018. Effect of exceptions to the answer. 1019. Piling of answer a waiver of objections to refusal of dissolution § 1001. Motions for the dissolution of interlocutory injunc- tions are usually made upon the coming in of the answer, which is to be taken as true in so far as it is responsive to the allegations of the bill.^ If the injunction has been granted ex pcurte, the court will at any time hear a motion to dissolve for want of equity in the bill.^ And where the writ has been allowed by a judge at chambers, a motion to dissolve may nevertheless be made directly to the court, without applying to the same judge.* Wor is it necessary that defendant should have been served with process in the cause, since, if otherwise apprised of the existence of the injunction, he may voluntarily appear and apply for a dissolution.* § 1002. A motion for a dissolution will not usually be ' Harris v. Sangston, 4 Md. Ch. 894; Merwin v. Smith, 1 Green Ch. 183. » Receivers «. Biddle, 3 Green Ch. 322. ' "Woodruff «. Fisher, 17 Barb. 334. * Waffle «. Vanderheyden, 8 Paige, 45. 576 iNjTJNcrnoKS. [chap. xxn. entertained without notice to the opposite party, and even where the right exists by statute of dissolving or vacating an injunction without notice, this should not be done unless from the urgency of the case such a course is necessary to guard against serious loss.i The notice should point out the particular grounds on which a dissolution is sought, and it is not sufficient to state generally that it is for irregularity in the proceedings, but it should appear in what the irregularity complained of consists. ^ § 1003. "Where notice of the motion for a dissolution is given before answer filed, defendant will not be allowed to read his answer subsequently filed in support of the motion, since complainant, on being notified of the motion, has a right to expect that it vsdll be heard upon the case as it then stands. 3 And upon a motion to dissolve an injunction granted against two defendants, an answer purporting to be that of both defendants, but which is in fact the answer of but one of them, and is only sworn by one, will not be admitted.* § 1004. The defendant in an injunction suit, by his motion to dissolve, plants himself upon the answer and its sufficiency, and stands pledged to sustain it, since by it he must stand or fall. And since the motion is founded on the correctness of the answer, objections of every kind may be made to its sufficiency upon the hearing of the motion to dissolve. ^ Hence it follows that exceptions to the answer will not, fer se, pre- vent the dissolution of an injunction, but the court will look into the exceptions upon the argument of the motion to dissolve, and will give them the weight to which they are entitled.^ And since, for the purposes of the motion to dis- solve, such allegations of the biU as are not answered are taken ' Peck V. Torks, 41 Barb. 547. ' Miller «. Traphagen, 2 Halst. Ch. 200. ' Cattell «. Nelson, 3 Halst. Ch. 123. * Vauglm 13. Johnson, 1 Stockt. 173. » Gibson v. Tilton, 1 Bland, 352. « Smith v. Thomas, 2 Dev. & Bat. Eq. 136; Edney v. Motz, 5 Ired. Eq. 233; Wyckoff D. Cochran, 3 Green Ch. 420; Jones «. Magill, 1 Bland, 177; Salmon «. Clagett, 3 Bland, 125. CHAP. XXU.] FEACTIOE. 577 as true, the fact tliat exceptions to the answer for insufficiency have not been acted upon, affords no ground of objection to the dissolution. 1 § 1005. Upon a motion to dissolve, on the coming in of the answer, complainant wiU not usually be allowed to file additional affidavits, either in support of his bill, or for the purpose of contradicting the answer. ^ Some exceptions to the rule are, however, recognized by the authorities, and where the effect of a dissolution would be that the parties would not remain m stabu quo upon the final hearing, and where, as in cases of waste, serious and irreparable mischief would ensue ' Baltimore etc. «. Wheeling, 13 Grat. 40. " Gentry «. Hamilton, 3 Ired. Bq. 376 ; Howell ®. Eobl), 3 Halst. Ch. 17 ; Easttiurn v. Kirk, 1 Johns. Oh. 444; Roberts c. Anderson, 3 Johns. Ch. 203; Moredook b. Williams, 1 Overt. 325. Notwithstanding the decided weight of authority in support of the rule as laid down in the text, it has been strongly contended by Mr. Justice Story that the admission of affidavits upon a motion to dissolve should be left entirely to the discretion of the court. In Poor u. Oarleton, 3 Sumner, 70,' that learned jurist observes as follows : " The admission of the affidavits, whether filed before or after the answer, whether they are to the title of the plaintiff or to the acts of the defendant, although they are contradictory to the answer, ought to rest in the sound discretion of the court, according to the circumstances of each particular case, without the court's binding itself by any fixed and unalter- able rules, as to the exercise of that discretion. * * * The truth seems to be, that, in cases of this sort, the practice has been shifting, from time to time, to meet the new exigencies of society and the pressure of peculiar circumstances ; and the court has never suffered itself" to be entrapped by its own rules, so as to interfere with the purposes of substantial justice. The practice in America has, I believe, on this subject, become more liberal than it is in England ; and if it were necessary, I should not hesi- tate to admit affidavits to contradict the answer, for the purpose of contin- uing or even of granting a special injunction, where I perceived that without it irreparable mischiefs would arise. In the present case, there are circumstances which might free me from the necessity of asserting so broad a doctrine. But I wish rather to dispose of the case upon the general ground, that the granting and dissolving injunctions in cases of irreparable mischief rest in the sound discretion of the court, whether applied for before or after answer ; and that affidavits may after answer be read by the plaintiff to support the injunction, as well as by the defendant to repel it, although the answer contradicts the substantial facts of the bill, and the affidavits of the plaintiff are in contradiction of the answer." 37 578 ' iNJUNcnoNS. [ohap. xin. from tho delay, tbe strictness of the rule may be relaxed. ^ But in cases of injunctions relating to partnership matters, as where one member of a firm is restrained from using the copartnership name, or doing any act relating to the busitiess of the firm, complainant will not be allowed, on a motion to dissolve, to read ex parte affidavits to contradict the answer.^ > Davis's Ex'rs. v. Fulton, 1 Overt. 121 ; Moredock «. 'Williams, 1 Overt. 335. ' Eastbttm v. Kirk, 1 Johns. Ch. 444. And see Roberts v. Anderson, 3 Johns. Ch. 203. "The general rule," says Kent, Chancellor, in Eastburn 0. Kirk, " is against the admission of affidavits in these cases, and the instances in which they have been admitted are special, and exceptions to the general rule. Lord Kenyon, when master of the rolls, appears to have doubted the correctness of the practice in any case. They have been admitted in cases of waste, and in cases analogous, resting on the same principle, and where irreparable mischief might ensue ; and I am aware that partnership cases have been brought within this rule. In one of the cases cited (3 Bro. 89), the affidavits sought to be read against the answer, were the original affidavits on which the injunction to stay waste had been (bunded, and which the defendant must have had an opportunity to have seen before his answer. In this case, the injunction was granted upon the filing of the bill, and the answer meets the charges; but if these affidavits are to be admitted, the defendant, on whom they must operate as a sur- prise, can have no opportunity to meet them; for it is well understood, in all the cases, that affidavits can not be admitted in support of the answer in this stage of the cause ; and the defendant might be condemned, upon the strength of these affidavits, to a suspension of the exercise of his rights as a partner, until the hearing, without any opportunity or means of vindi- cating himself. This case does not strike me as very analogous to the case of waste. The injunction, here, is not to restrain the defendant from com- mitting waste, or doing a positive wrong, but from the exercise of all his rights as partner, from the apprehension that he may abuse them. The allegation of previous abuse is made, on one side, by the bill, and denied on the other, by the answer ; and if the answer be full, and a denial of all equity, and of every grama/men in the bill, it must, upon the present motion, be taken for true. If the injunction is dissolved, the defendant may, undoubtedly, abuse his rights as a partner to the injury of his copartners; but the case does not seem to contemplate the occurrence of mischief which the law would deem irreparable, and future abuse may be the ground for further application. In the case from 9 Vesey (Berkeley t. Brymer, 9 Ves. 355), the chancellor refused affidavits to support an injunc- tion to restrain the negotiation of a bill. To admit the affidavits in this case would be to authorize their admission in every other case, and would go to destroy the general rule. The motion for their admission must be denied." OHAP. xxn.J PEAoncB. 679 § 1006. The general rule is well established, that a motion to dissolve an injunction should be based upon defendant's answer, and that affidavits will not be allowed to take the place of tbe answer for the purposes of the motion.' ISTor is it proper to introducfe affidavits in support of the answer, on a motion to dissolve, wbere the same motion has been denied on the answer itself. If the answer in such case be deemed insufficient, the dissolution will be refused and the injunction will stand until the trial. ^ The rule as here laid down, how- ever, is to be understood as excluding only ex parte affidavits, and it is held that depositions taken upon due notice, after an injunction has been sustained and the cause continued, may be read on a motion to dissolve made by defendant on an amended answer.* § 1007. A distinction as to tbe practice upon motions to dissolve has been taken between what are called common or ordinary injunctions, such as those to judgments at law, and special injunctions for the prevention of irreparable mischief, as in cases of waste. The distinction is based upon the fact that in cases of the latter description, the injunction is not, as in tbe former, in aid of or secondary to another equity, but is the very point in tbe case and tbe ultimate and only relief sought. It is accordingly held in cases of special injunctions for the prevention of irreparable injuries, that on a motion to dissolve, the bill may be read in contradiction to the answer, and if the equity appears in doubt, the motion wiU be refused and the injunction will be continued to the hearing.* § 1008. The same distinctipn has been recognized in the case of an injunction to restrain the infringement of a patent. Such an injunction is regarded as special in its nature, being ' Sacket v. Hill, 2 Mich. 182. ' HoflFman ii. Livingston, 1 Johns. Ch. 211. ' Leroy v. Dickerson, 1 Carolina Law Repository, 110. * Purnell t. Daniel, 8 Ired. Eq. 9 ; Troy v. Norment, 2 Jones, Eq. 818 ; Lloyd v. Heath, Busb. Eq. 39. And it has even been held in cases of special injunctions for the prevention of irreparable injury, that the denial in the answer of complainant's equity will not suffice to warrant a dissolu- tion. Peterson d. Matthis, 3 Jones Eq. 81. But the doctrine is hardly sustained by the weight of authority. ' 580 rajTHcrnoNS. [chap. xxn. granted upon notice to the opposite party and affidavits, and differing in this respect from the common injunction, which issues as a matter of course upon cause shown, and is usually- dissolved as of course upon the coming in of the answer deny- ing the equity of the bill. In patent cases, therefore, it is held that on motion to dissolve, the presumptions arising from the answer may be disproved by CAddence on the part of com- plainant, and that counter testimony is then admissible to sustain the answer. ^ § 1009. While new matter contained in the answer, which is not responsive to any allegations of the bill, will not, as a rule, be considered upon the hearing of a motion to dissolve,^ yet if defendant relies upon such new matter in support of his motion, complainant may be allowed to introduce affidavits for the purpose of contradicting it. * § 1010. The rule of practice excluding affidavits upon the motion to dissolve, may be departed from where it is neces- sary to show that the officer granting the writ was deceived as to the merits of the case. Thus, an affidavit showing that the injunction was irregularly issued, and that the officer allowing it was misled or deceived as to the facts in the case, and thereby granted the injunction contrary to law, is admissible on the hearing of a motion to dissolve.* And in some states the question of the admissibility of affidavits upon the motion to dissolve depends upon whether they were filed before or after the coming in of the answer. Thus, it has been held that affidavits filed by complainant before answer may be read on the motion, but if filed after answer they can not be read.^ The practice, however, upon this subject is so dependent upon the rules of practice and the statutes of different states, that no general rule can be devised susceptible of universal application. 'Woodworth v. Eogers, 3 Woodb. & M. 135. Brooks v. Bicknell, 3 McLean, 350. ' Wooten v. Smith, 27 Geo. 316. And see Lawrence «. Philpot, lb. 585. ' Merwin «. Smith, 1 Green Ch. 183. * Carroll v. Farmers etc., Harrlng. Mich. 197. " Kinsler i>. Clarke, 3 Hill Eq. 617. CHAP. XXn.] PEACTIC3E. 581 § 1011. The objection tliat tlie security in the injunction bond was not approved by the court, will not avail upon the final hearing, and can only be urged upon the motion to dissolve, since the only question upon the hearing is whether complainant is entitled to the relief prayed, and the question of whether the temporary injunction was properly or improp- erly awarded can not then be considered. * § 1012. Although legal proceedings usually abate by the death of a party to the action, yet an injunction, being in the nature of a judgment of the court, continues in force until dissolved by the court itself. And the proper practice upon the death of a complainant, after obtaining an injunction and before a hearing, is to apply to the court for a rule upon the administrator, or other representative of the deceased, to revive the action, or in default thereof that the injunction will be dissolved. 2 It follows, therefore, that upon the death of complainant before the hearing, defendant is not entitled to an immediate dissolution upon the coming in of his answer, no administration having yet been had upon com- plainant's estate, and he being unrepresented in the cause. ^ And in no event does the abatement of an injunction suit by the death of the complainant operate, fer se, as a dissolution of the injunction, but an order of the court is required for that purpose.* § 1013. A similar practice prevails in case of the death of a defendant against whom an injunction has been obtained, and the court will grant a rule on complainant that the injunc- tion shall stand dissolved, unless renewed against the represen- tatives of the deceased within a given period. ^ The rule, however, does not apply to the case of merely formal or nomi- ' Boston V. Nichols, 47 111. 353. * Hawley v. Bennett, 4 Paige, 163 ; Grrifflth ». Bronaugh, 1 Bland, 547 ; Walsh V. Smyth, 3 Bland, 9; Carter v. Washington, 1 Hen. & M. 203; Jackson v. Arnold, 4 Band. 195. " Hill V. Jones, 1 Murph. 311. * Collier v. Bank of Newhern, 1 Dev. & Bat. Eq. 338. ' White «. Fitzhugh, 1 Hen. & M. 1. And see Hawley v. Bennett, 4 Paige, 163 ; Cummins v. Cummings, 4 Halst. Ch. 173. 582 iNJUNC?noNS. [ohap. xxn. nal parties to the proceedings, and upon their death the cause may proceed without making their representatives parties to the record. 1 And where defendant's answer is made and properly sworn to by him, but he dies before filing it, the answer may nevertheless be used on the hearing of a motion to dissolve the injunction.^ § 1014. Questions concerning the continuance of motions for dissolution may be regarded as subject to the exercise of a sound legal discretion. But since courts of equity are regarded as being always open for the granting of preliminary injunc- tions, or to reinstate them after being improperly dissolved, an application to continue a motion for a dissolution will not be received with favor, and the continuance will only be granted upon a showing of the very gravest necessity.^ § 1015. Although complainant may have waived defend- ant's answer under oath, yet if defendant, notwithstanding such waiver, files a sworn answer denying the equities of the bill, the injunction will be dissolved.* And it may be said generally, that the answer of defendant is entitled to the same credit as complainant's bill, so that the fact of the bill being sworn by several complainants, and the answer by only one of the defendants, constitutes no valid objection to the answer. ^ § 1016. An objection to the injunction bill on the ground of multifariousness, is held to be premature if taken on the motion to dissolve, and though such objection may be well founded, it is entitled to no weight upon the hearing of the motion." A demurrer, however, for improper joindpr of parties, though properly made in the first stages of the cause and before answer, may be received at any time, even upon the trial; and if the objection is one which the defendant has a right to take, but he does not see fit to exercise that right ' Dennis v. Green, 8 Geo. 197. «Id. ' Kadford's Ex'rs. ®. Innes' Executrix, 1 Hen. & M. 8. * Manchester Se« Taxes.) ATTACHMENT, foreign, creditors protected by injunction 70 action of, not enjoined because defendant can not procure security 70 creditor in, can not enjoin disposal of debtor's property . . 94 execution under judgment in 138 damages ibr wrongful attachment, no ground for enjoining judgment 137 attaching creditor, may enjoin waste 453 attaching creditor, violation of injunction by 861 ATTORNEY, restrained from disclosing secrets 32 taking judgment contrary to agreement, ground of injunc- tion 116 warrant of, judgment upon 167 negligence or improper conduct of, no ground for injunction 178 contract not to practice as a 738, 743 when punished for contempt 873 AWARD, action upon, when enjoined 71 judgments upon, rarely enjoined 163 when enjoined on ground of fraud 163 judgments upon, injunction refused 168, 164 concerning partition of lands 373 default of railway in complying with 401 sustaining patent 618 B. BANKING — BANKS, abuse of trust in election of bank directors no ground for injunction 14 banking not enjoined, though in violation of statute ... 38 national, taxation upon shares of 380 distraint against bank for taxes 593 exercise of banking powers 765 jurisdiction in restraint of, purely statutory 766 insolvency of bank as ground for relief 766 shareholders entitled to injunction 768 depositor in savings bank, waiver of right to relief .... 777 588 INDEX. Sbotioh. BA1{KRUPT. {8ee BANEauPTCT. BANKRUPTCY, discliarge in, defendant prevented from pleading may enjoin judgment 110 sale of bankrupt's property, when enjoined 170 injunctions in aid of 308-236 nature of tlie jurisdiction 308 the jurisdiction an equitable one 209 executions after petition in, enjoined 309 twenty-first section of bankrupt act, intent of 310, 311 pending proceedings for discharge in, proceedings in state courts enjoined 310 injunctions in aid of, only granted in same district .... 311 in exercise of jurisdiction cases not withdrawn from state to federal courts 313 agreement in fraud of bankrupt law 312 injunction in aid of, not dissolved imtil determination of question of bankruptcy 313 fortieth section of act, construction of 308, 313 bankrupt act does not affect prior iona fide judgments . . . 314 homestead of bankrupt, sale of 315 bankrupt's circumstances, creditor's knowledge of ... . 316 vessel belonging to bankrupt, sale enjoined 217 proceedings in, effect on subsequently acquired property . . 218 discharge under state insolvent laws, effect of 219 injunction in aid of, parties to 320 banki'upt court will not enjoin receivers in state courts . . 331 improper conduct of marshal under warrant in 223 rights of mortgagees as affected by 233 effect of defendant's declining to answer bill 224 discharge of bankrupt dissolves injunction 226 of mortgagor, ground for enjoining waste 813, 444 BILL OF EXCHANGE, (&« Pkomissokt Notes.) suit on in Ireland, may be enjoined in England 58 partner may be enjoined from drawing, or accepting . . . 816 BILL OF PEACE, when entertained against action at law 53 distinctions as to bill of peace proper 54 to enjoin enforcement of revenue laws 379 BISHOP. {Bee EccijBSIABtical Mattbes.) BOND, {Bee Injunction Bond, Indemnity Bond.) for conveyance, when suit upon will be enjoined 66" for purchase money of personal property, injunction refused 75 judgment on, obtained by fraud may be enjoined 113 forged assignment of, ground for injunction 117 forthcoming bond, forfeiture of . . ... ... 118 INDEX. 589 Sbotiok. BOND — Oontimied. loss of instrument relating to 110 appeal bond, mistake in 133 for money lost in gaming 135 replevin, surety in 155 for purchase money at trust sale 198 for purchase money, judgment enjoined on failure of title 883, 285, 392, 295, 396, 298 for title, entry under by vendee 286 for title. Injunction granted 297 for conveyance by infant 330 penalty in, relief against 341 of municipal corporation obtained through fraud . . . 359 in aid of railway 383, 808 by surety, variance from 835 BOUNTIES, taxes for, general rule as to enjoining 376 statute authorizing, must be strictly complied with .... 377 parties to the bill', dissolution, bounty for destruction of wolves 378 BREACH. (See Violation.) BRIDGES, when enjoined on ground of nuisance 535,536 franchise in, general rule 580 right need not be established at law 581 question of profits not considered in enjoining 583 as between landlord and tenant 583 where right is doubtful court will consider relative con- venience 584 owner's negligence a bar to relief 585 right must be exclusive 586 proximity to ferry 587 erection of by railway over canal 595 BUILDINGrS, (See Ntobancb, Easements.) threats of destruction of 462 erection of, distinction as to finished and unfinished con- dition 477 pulling down 479 nuisances to 490-500 BURIAL GROUND, dedication of land for 241 disinterment of bodies by legislative authority 358 violation of enjoined 539 right of burial protected by injunction 549 690 UTOEX. 0. Seotios. CANAL, right to injunction as between railway and canal company 406, 595 mandatory injunction refused to restore banks of 513 premises adjacent to, light and air 555 right to water 561 quantity of water 763 continuous trespass by canal company 764 injunction against obstructing canal boats, when violated . 866 CHATTELS, mortgagor of, enjoined from committing waste 446 CHURCHES. (Bee Ecclesiastical Mattbks.) CITY. (See Muuicipal Cokpobatiosts.) CLEEK, embezzling employer's goods i 37 CLOUD UPON TITLE, a ground of injunction 45 action of ejectment enjoined when it would throw cloud upon title _ 64 general rule as to enjoining judgments because of 147, 148, 369 grounds of the jurisdiction in preventing 369 test as to, difficulty of establishing 370 enforcement of judgment already satisfied may constiute a . 371 distinction as to evidence necessary to establish 373 not prevented by injunction where there is a remedy at law . 373 possession under tax deeds, 374 sale under judgment not a lien, enjoined 375 improper assessments for opening streets 376 issuing of patent for lands, not enjoined 377 ejectment enjoined for prevention of 337 taxes enjoined for prevention of 367, 368 illegality must exist dehors the record 368 COMPENSATION. (Bee Heohwats and Raileoabs.) CONFESSION OP JUDGMENT, before action at law will be enjoined 53 rarely enjoined 166 by common council of city 167 by one not authorized 181 CONSIDERATION, failure of in note 55, 56 gaming 128 failure of, when ground for enjoining judgment . . . 168, 169 illegality of 109 failure of, ground for enjoining collection of purchase money of real estate 293 INDEX. 591 SKOTIOIf. CONTEMPT. {See Violation.) CONTBACT, {See Pkomissokt Notes.) against exercise of a right 18 judgment in violation of, may te enjoined H6 loss of, ground of injunction against judgment 119 to allow set-off, violation of . . , 139 enforcement of lien in violation of, enjoined 151 may warrant injunction against judgment where it can not he used in defense at law 188 violation of, ground for enjoining judgment against surety . 190 by third party to pay execution 194. not to carry on business, violation of 203 in fraud of bankrupt act, enjoined 213 special, as affecting injunction on failure of title 288 violation of, ground for enjoining collection of purchase money 396,298 not to enforce lien, violation of 335 covenants against erections 547 effect of in cases of copyrights 650 injunctions to restrain violation of, foundation of the juris- diction 695 contract must be free from doubt 695 champerty and maintenance 695 requisites of the contract • . . . . 696 injunction barred by remedy at law 697 ftaud in obtaining contract a ground for relief 698 fbr payment out of specific fund 699 process of manufacture disclosed in violation of 699 jurisdiction not limited to original parties 700 covenant to use real estate for religious purposes 701 subscriptions to educational institution 701 gaming contracts 703 usurious contracts ! 703-705 injunction against entering into, pending litigation . . . 706 complainant must come into court with clean hands . . . 707 speoifi^c performance of, injunctions in aid 708 injunctions against negotiation and collection of promissory notes 709-713 negative contracts, injunctions to restrain violation of . 713-735 jurisdiction' akin to specific performance 713 contracts against publications 713, 744 negative covenants in leases, general rule 714 covenant not to carry on a business 715 effect of long continued violation 715 removal of machinery from mine 716 use of buildings for school purposes 716 692 INDEX. Section. coif TBAGT— Continued. covenants binding on sub-lessees and assignees 716 equity looks only to terms of contract 717 convenience and inconvenience not considered 717 qualification of the rule 718 burden of proof in cases of doubt 718 breacb of covenant need not amount to a nuisance .... 719 permission to carry on offensive trade, effect of ; . . . . 719 court will not institute comparison 719 contract must be certain 720 damage must be shown from breach 720 breach need not be actually committed 720 when covenant may be controlled by recitals 721 construction of covenant as to penalty and liquidated dam- ages 722,723,743 relative rights of party in possession and remainder-man or reversioner under covenant 724 covenant against leasing for hotel purposes 725 covenants in lease, lessor may be estopped from enjoining breach of 726 covenants in conveyances limiting erections, general rule . 727 covenants running with the land 728 covenants against erection of noxious structures 729 complainant's laches a bar to relief 730 '^ injunction refused where contract can not be enforced . . 731 contracts for theatrical and operatic performances . 732, 733, 735 contracts containing both affirmative and negative stipula- tions 788,734 contracts purely negative 785 contracts in restraint of trade 736-745 contracts in restraint of trade protected if reasonable . . . 736 foundation of the jurisdiction 737 contract against practicing as a physician 737 contract against practicing as an attorney 738 court will not imply contract 739 oral contract entitled to protection 739 sale of good will with covenant against continuing the busi- ness 740 governing principle 741 sale of patent with covenant against manufacturing . . . 741 doubt as to violation a bar to an injunction 743 legal and equitable relief for breach not allowed at same time 745 municipal authorities not enjoined from entering into . . . 786 agreements by partners not to carry on firm business . . . 818 of forbearance against debtor, effect on surety . ... 832-835 injunction in aid of specific performance of, when dissolved 936 raoEx. 693 ♦ . Section. CONVENIENCE AND INCONVENIENCE, court will be governed by, wlaere right is not clear .... 13 ■where equally divided relief withheld 13 considerations of, on application to enjoin actions at law in foreign courts 59 considerations of, in cases of highways and railroads . . . 387 in cases of violation of franchise 584, 599 in cases of infringement of patents 618 not considered in cases of violation of contract 717 qualification of the rule 718 CONVEYANCE, loss of, when ground for injunction 45, 251, 259 bond for, when action upon enjoined 66 failure to execute, ground of injunction 285 intended as mortgage, sale enjoined 318 covenants in, limiting erections 737-730 COPTBIQHTS, injunctions to restrain infringement of, foundation of the jurisdiction 641 jurisdiction exercised only in United States courts . . . 641 complainant must come into court with clean hands . . . 642 general rule 643 relief not dependent upon discovery '. . 643 establishing right at law 644 difficulty in determining question of piracy 645 intent immaterial 645 iona fide quotations not an infringement 646 maps and charts 647 nature, object and value of selections to be considered . . . 648 test as to extracts 649, 653 effect of agreement 650 effect of doubt as to right at law 650 difficulty in estimating profits 650 requirements of statute must be complied with 651 stoppage of sales no bar to relief ' . . 652 musical compositions 654 plays and dramatic compositions 655, 668 abridgments . . . . • 656 distinction between abridgment and compilation .... 657 compilations and abridgments 658 law reports 658 failure of complainant to object 659 arithmetical calculations 659 piracy confined to multiplying copies of original .... 660 drawings and sketches belonging to government 661 pleadings and parties 662 38 594 INDEX. SymiCK, COPYRIGHTS — Continued. unpublished manuscripts 66S publication of private letters ( i, 660 scientific lectures 665 publication of libelous work not enjoined 666 magazines 667 common law rights of authors 668 covenants against publication 669 translations . 670 equitable title will be protected 671 CORPORATIONS, (See Mtoticipal Cokpobations.) ejectment against, when enjoined 63, 336 judgment against, enjoined on ground of Ignorano. , . 125 foreign, execution of mortgage by, not enjoiued ... . 316 tax levied without authority by . 354 misnomer of, no ground for enjoining tax .... . 355 property of, exempt from taxation . 357 foreign, enjoined from trespass in harbor .... . 480 franchise of, usurpation 594 infringement of patent by 638 name of, a trade mark 687 stock in company, transfer enjoined 760 jurisdiction of equity in restraint of, founded in «ru»i . . 761 caution exercised in enjoining 763 doubt as to the right a bar to relief 763 not usually enjoined without notice 763 discretionary power of, rarely interfered with 763 of quasi public nature, enjoined from continuwas .trespass . 764 forfeiture of chartered rights not determined m equity . . 765 exercise of banking powers 765 jurisdiction in restraint of banking purely staiutory . . . 766 protection of shareholders, general rule as to 767 shareholders may enjoin improper conduci of corporate authorities 768 diligence required in assertion of right 768, 771 gross abuse of powers of, enjoined 769 created for special purpose, enjoined from aeparture there- from . • 770 shareholder protected regardless of amoimt oi his interest . 771 right to invoke legislative aid to change objects of incorpo- ration 773,773 surrender of charter, when enjoined 773 acts in furtherance of objects of, not enjoinea 774 officers of, not enjoined from exercising fUncUons .... 774 improper issues of stock 775^ 778 consolidation of, when enjoined 776 moEX. 595 Seotiok. CORPORATIONS — Omtimsd. waiver of right to injunction 777 voting upon excess of stock 779 fraudulent transfers of corporate property 779 judgment confessed by 780 not enjoined on bill filed by stockholders in aid of other per- sons 780 corporate elections and right to office not determined in equity ^ 781, 799 defect in joinder of parties 781 when enjoined from collecting subscriptions to 782 officers of, not enjoined on a bill for receiver 782 liability of, for violating injunction 883 verification of answer of 908 verification of bill by 985 COSTS. (See Damages.) COUNSEL, neglect of, no ground for enjoining judgment 98 improper advice or ignorance or mistake of, no ground for enjoining judgment 101,178 advice of, no excuse for violating injunction 851 but may be taken into account in fixing punishment . . . 851 fees of, allowed as damages on dissolution 973, 974 COURTS, principles governing the jurisdiction as between courts of co-ordinate powers 17 proceedings in, when enjoined in another state or country 57-61 rule as to injunctions between courts of concurrent and of different jurisdiction 157 mandate of superior, when enjoined by Inferior . ... 157 rule as between state and United States courts 158 rule as between courts of different states 159, 160 of United States, jurisdiction for protection of navigable streams 535, 536 dissolution by inferior court, no bar to granting writ by superior court 890 COTENANT. {See Contkact.) CREDITORS, can not enjoin transfer of debtor's property before judgment 26, 27, 94, 250 effect of statute authorizing injunction before judgment . . 29 in foreign attachment, protected by injunction 70 When enjoined from clouding title 148 rights of judgment creditors to control property under execu- tion 184 when put to election . . 199 596 INDEX. SEcnoif. CREDITOKS — Gmtinued. judgment, effect of bankruptcy proceedings upon . . . 208-326 ■when enjoined from clouding title 271, 375 judgment, not enjoined Isy devisees 338 judgment, enjoined from proceeding against wife's land . . 345 judgment, proceedings by against trust property 346 rights of under statute, to enjoin fraudulent assignment . . 820 CRIMES, injunction not granted against commission of 23 CEOPS. {Bee MoKTaAGB, Laotslord and Tenant.) D. D.VMA&ES, excessive, injunction refused in absence of fraud 120 when refused on dissolving injunction against judgment for purchase money 150 on dissolving injunction against judgment 206 unliquidated, no ground for enjoining collection of purchase money 306 upon dissolution of injunction against collection of pur- chase money 308 non-payment of, in opening highways and railroads . . 391^03 upon dissolution 963-981 upon dissolution, may be allowed independent of statute . . 963 not awarded in gross 963 court can not go beyond the bond 963 decree as to, conclusive 963 general rule in determining 964 speculative and remote damages not allowed 964 not allowed pending appeal 965 on dissolution of injunction against judgment 965, 966, 968, 970, 979 expense and trouble in procuring dissolution 967 percentage of judgments enjoined 968 necessarily implied on dissolution 969 , costs 965,970,973,980 for restraining sale under trust deed 971 on dissolving injunction against action on note 973 counsel fees allowed 973, 974 defendant entitled to, though not served with writ .... 975 want of jurisdiction will not deprive defendant of .... 975 emblements, when included in 976 in United States courts, not subject to state practice . . . 977 liability of sureties 978 where injunction is rightfully obtained 980 not allowed until final determination of cause 981 INDEX. 597 Section. DEATH, of parties, effect on injunction 176,1013,1013 DECREE IN 1;QUITT, not enjoined on grounds which might have been urged in defense 105 not usually enjoined 161 DEFAULT, judgment by, against /iCTie covert, may be enjoined .... 108 judgment by, when enjoined on ground of fraud 118 judgment by, rarely enjoined 165 DEFINITION, general definition 1 process preventive rather than remedial 1 not a corrective process 1 distinction between mandatory and preventive injunctions . 3 mandatory injunction seldom allowed 3 in granting mandatory injunction court is governed by rela^ tive convenience and inconvenience 3 interlocutory injunctions, granted at any time before hearing 3 perpetual injunctions granted at final hearing 3 interlocutory injunction does not conclude a right, perpetual injunction conclusive 3 interlocutory injunction not decisive as to merits .... 5 common and special injunctions 6 common injunction secondary to another equity 6 special injunction granted where preventive aid of equity is the only remedy sought 6 DEMURRER, remedy at law a ground of 30 bill to enjoin nuisance, when demurrable 498, 516 to bill to enjoin fraudulent sale of corporate property . . . 779 motion to dissolve before answer, operates as a 941 for improper joinder of parties 1016 DEVISEES. {See Real Pbopbkty.) DIRECTORS. {Bee Cobpokations.) DISCRETION, granting of preliminary injunction addressed to sound dis- cretion of the court 11 exercise of, on application for interlocutory injunction, not subject to review on error or appeal, otherwise as to final injunctions 16 exercise of, no ground for injunction 73, 196 exercise of by municipal authorities, rarely interfered with . 403 of court in restraining infringements of patents . . . 603, 605 of corporate bodies, rarely interfered with . ... 763 oyS INDEX. SBOTIO!,'. DISCEETION — Oontinmd. of public officers, rarely enjoined 797 of court as to dissolving injunction 899, 905 DISSOLUTION, {See Damages.) ■writ may be revived after 41 after dissolution of injunction against suit equity has no further jurisdiction 83 may be allowed as to part only 180, 906, 918 of injunctions against judgments 305-307 of injunction in aid of proceedings in bankruptcy .... 334 discharge in bankruptcy works a 326 of injunction against judgment for purchase money . . 398, 301 of injunction against railway for failure to make compensa- tion 393 in cases of waste 449, 474 in cases of nuisance 497, 518 in patent causes 637, 633, 636 as between partners . . 833 as between husband and wife 844 defendant in contempt, not allowed hearing upon .... 875 general rule as to . 878 motion for, when entertained 879 when allowed before answer 880 burden of proof on motion for 881 effect given to answer on motion for 881 effect of failure to deny allegations of bill 883 denial in answer must be clear and certain 883 effect of new matter in the answer on motion for .... 883, 895 when allowed on account of vagueness 884 effect of declining to answer on motion for 884, 930 deception or misrepresentation a ground for 885, 940 not allowed on evasive answer 886, 931 apparent exception to above rule 887 when caused by the dismissal of the bill 888 bill not necessarily dismissed because of 889 by inferior court, effect of 890 right of appeal from an order of 891, 893 appeal from, does not revive injunction 893 laches, effect as to dissolution 894, 943 effect upon, of new matter in avoidance in the answer . . . 895 general rule as to granting, on answer denying equities of the bill 896 illustrations of the rule .- 897 relaxation of rule requiring positive denials 898 exceptions to general rule 899 discretion in granting motion for 899, 905 INDEX. 599 mSSOLV^ION— Continued. SEcmoif. cases where refused, though answer denies equities of the bill 900 not allowed in cases of doubt 901 not allowed where it would work greater prejudice than retaining the wi-it 903 general rule limited to explicit denials 903 requisites of the answer to entitle defendants to 904 not granted on answer which is illusory or wanting in candor 907 of injunction against corporation 908 general rule as to joint defendants 909 modifications of the rule 910 911 when answers of other defendants may be waived .... 913 impossibility of procuring answers 913 greater strictness in cases of fraud 914 ignorance of defendants as to subject matter, no ground for . 915 absence of one defendant from state 915 improper joinder of parties 915 of injunctions against proceedings at law 916-931 of injunction against execution, efltect of 916 not allowed before hearing, where injunction rests on matters of trust 917 not allowed before hearing, where case is peculiarly within cognizance of equity 917 granted on defendants allowing credit for excess of judgment enjoined 919 error to enter decree on dissolution for amount of judgment enjoined , . 931 laches a ground for, where injunction affects realty .... 923 doubt as to whether real estate is subject to execution, a ground for refusing 933 of injunctions against judgments for unpaid piirchase money 934,935 of injunction restraining railway from taking private prop- erty without payment 936 of injunction against action of ejectment 936 technical errors no ground for 937 insufficiency of bond, as affecting 937, 949 of injunction granted for abuse of trust 938 refused where complainant would be entitled to new injunc- tion 989 improper verification of bill, a ground for 939 not caused, ipso facto, by coming in of answer 930 if improperly granted, writ may be revived 930 same effect attained in other ways 933 removal of cause from state to United States courts works a . 933 may be caused by amendment to bill 933 600 INDEX. Sectiox. DISSOLUTION — Omtimaed. in oases of injunction for discovery 933 effect of giving security "by defendant 934 injunction not made perpetual on refusal of 935 allowed where principal relief can not be had 986 recognition of by complainant, prevents revival of writ . . 937 of injunctions against illegal taxes 988 irregularities in service no ground for . 939 not granted because of delay caused through mistake . . . 940 motion for before answer, regarded as a demurrer . . . 941 refused on disputed questions of law 943 not allowed where answer admits sufficient equity to retain the writ 944 not granted on plea of statute of limitations 944 not allowed because bill is verified by only one of several complainants • . . . 945 of injunction to judgment, election of defendant .... 958 damages upon 96S-981 practice in dissolving injunctions 1001-1019 DIVOECE. {See Husbahb and Wdce.) DOWER, failure to procure relinquishment of 398 DRAFT. {See Peomissobt Notes.) E. EASEMENTS, general principles on which the jurisdiction is exercised . 544 general rule as to protection of by injunction 545 right should be certain and injury clear 546 covenants against erections 547 right to support 548 right of burial 549 owner of, refused injunction against action of trespass . . 550 may result from dedication 551 in light, general rule as to protection of 553 in light, by prescription 553 in light, as between lessor and lessee 554 light and air on premises adjacent to canal 555 in water, rule as to protection of 556 in water, acquired by prescription 557 right must be clear 558 acquiescence in violation of, a bar to relief 559, 560 right to water in canal 561 injunction withheld where object can be attained at law . . 563 mill dams 563, 564 INDEX. 601 Section. EASEMENTS — Ootutirmed. right of way 565-569 pul)lic, parties entitled to enjoin 753 ECCLESIASTICAL MATTERS, injunctions in 237-246 jurisdiction of equity in, founded in trust 237 use of church by minister of different faitli, when enjoined . 338 distinction between ecclesiastical and corporate character of church 329 equity will not revise proceedings of ecclesiastical tribunals 330 will not interfere with discretion of church authorities . . 331 action of ecclesiastical tribunals final on ecclesiastical offenses and church canons 333, 283 minister, when enjoined from usurping pastoral office . . 234, 335 selection of minister will not be controlled in equity . . . 336 trustees of church, when enjoined from departure from trust 337-340 property dedicated to religious uses, protected in equity . . 341 doctrines of church, when court will investigate 343 one of two churches entitled to property, enjoined from its exclusive use 343 injunction not allowed to restrain mere trespass 244 use of chui'ch property for school purposes, may be enjoined 345 rights of pewholders 345, 246 conveyance of land to church for burial purposes .... 353 pretended trustees enjoined 484 violation of burial ground 539, 549 EJECTMENT, actions of, when enjoined to prevent multiplicity of suits . . 53, 62, 339 not enjoined merely to consolidate suits 54, 62, 339 enjoined where plaintiff is estopped from recovery .... 63 against corporation, when enjoined 62, 326 not enjoined where there is good defense at law 63 injunction against, when perpetuated 63, 332 action of under sheriff's deed, when enjoined 64 judgment in, injunction refused 174 action of, when ground for enjoining collection of purchase money 384 when enjoined by purchaser under foreclosure 330 actions of, general rule as to enjoining 324 not enjoined where defense can be made at law 325 enjoined where plaintiff is estopped from proceeding . . . 326 enjoined for prevention of cloud upon title 827 mistake of fact aground for enjoining 328 602 index:; Seotiou. EJECTMENT— Omtirmed. action ty infant after attaining majority 330 not enjoined because barred by statute of limitations . . . 331 proper parties to enjoin action of 833 pending action of, waste not enjoined 421 pending action of, ordinary use of land not enjoined . . . 434 dissolution of injunction against action of 926 EQUITABLE SET-OFF. {See Set-off.) ESTOVERS, use of, wben enjoined 336 EVIDENCE, degree of, on whicli injunction may be allowed ... 36, 87, 88 after-discovered, ground for injunction 73 after-discovered, when ground for injunction against judg- ment 87 error in overruling, no ground for injunction 130 in cases of easements in water 556 admissibility of, on motion for injunction 991, 993 admissibility of, on motion to dissolve 1005-1010 EXECUTIONS, [See Judgments.) disposal of debtor's property under, only enjoined by judg- ment creditor 94 improper levy under, no ground for injunction 98 sale under, not enjoined because of part payment .... 98 under statutory judgment, when enjoined 118 sale under, enjoined on ground of collusion 118 under judgment in attachment . . 138 irregularities in, no ground for injunction 139 sale under, of property belonging to third person . . 144, 187, 188 sale under, against personal and real property, distinction . 146 sale under, enjoined to prevent cloud upon title . . . .147,148 not enjoined by holder of prior lien 154,385 against growing crops 154 against surety in replevin bond 155 against other property than that of judgment debtor . . 158 sale under, enjoined because of collusion in confessing judgment 166 sale under, when injunction becomes operative 173 in favor of United States, sale of vessels under 179 issuing of two executions, or of premature execution, not enjoined 182 in replevin, when enjoined . . . . 183 rights of judgment creditors to control property under . . 184 levy of, upon heirlooms, not enjoined 186 enjoined in aid of proceedings in bankruptcy 209 INDEX. 603 Sectiott. EXECUTIONS— Gontinmd. sale of lands under, not enjoined for want of title .... 360 sale of lands under, as affected by fraud 267 sale under, enjoined for prevention of cloud upon title . 369-377 against husband, sale of wife's property under 345 against defaulting tax collector, not enjoined 386 under judgment confessed by corporation 780 levy of, upon partnership property in satisfaction of individ- ual debt 814 dissolution of injunctions against 916-931 doubt as to whether property is subject to, ground for refusing dissolution 923 damages on dissolving injunction against 979 EXECUTORS. (See Abminibtratobs.) FAILURE OP CONSIDERATION. (See Promissory Notes.) FAILURE OF TITLE. {3ee Title.) FERRIES, protection of franchise in, general rule 587 injunction not allowed where remedy at law is ample . . . 588 negligence of owner bars relief 589 violation of franchise as regards public only, enjoined . . 590 effect of non-user 590 laying out of road to detriment of 591 difference of opinion as to rates of ferriage 785 FORCIBLE ENTRY AND DETAINER, want of title no ground for enjoining 46 not enjoined in absence of irreparable injury 65 nor in absence of iraud, accident, mistake, or surprise ... 65 judgment in, injunction refused 174, 339 not enjoined because plaintiff has no title 249 trespass by, not enjoined 483 FORECLOSURE. (See Mobtoaoe.) FOREIGN COURTS, proceedings in, may be enjoined 57 English rule and grounds thereof 57 proceedings in courts of Ireland, enjoined in England . . 68 jurisdiction in enjoining actions in, purely in personam . 57, 59 suits in one state may be enjoined in another 60 FORGERY, when relied on for injunction 38 604 INDEX. SBonoN. VO'RQ^'RY—Oontinmd. forged assignment of bond, ground for injunction .... 117 in answer, indictment for ... 930 FRANCHISES, of road, not enjoined where remedy exists at law 410 unauthorized attempt at exercise of, hy railway 412 grounds of injunction for protection of 570 right need not he established at law 571, 581 jurisdiction for protection of, akin to that in nuisance . . . 572 right must be coupled with possession 573 complainant must he free from laches 574, 578 in roads, entitled to protection 575 incorporated road may be enjoined from violating .... 576 relief granted where the injury is purely a trespass .... 577 mere apprehension of injury to, not sufficient 579 union of railroads 579 street railways 579 in bridges, entitled to protection 580 in bridges, question of profit not regarded 582 relief as between landlord and tenant 583 doubt as to right, considerations of convenience .... 584, 599 negligence of owner of, bars relief 585, 589 right must be exclusive 586 ferries, rule as to protection of 587 injunction refused where there is a remedy at law . . . 588 violation of, only enjoined as regards the public 590 non-user of, a bar to relief 590 laying out of road enjoined 591 proceedings of public officers against 592 tax illegally imposed upon 593 usurpation of corporate franchise 594 confiioting franchise may be created by legislature .... 595 inadequacy of remedy at law, ground for protecting . . . 596 written evidence of, if any, must be produced 597 construction of railways 598 exclusive navigation of rivers by steamboats 600 distinction between franchise and monopoly 601 FRAUD, not susceptible of definition 24 fraudulent transfers of debtor's property, when enjoined . . 35 allegations of, must be specific 28 apprehensions of fraud 39 a ground of relief against actions at law 45 after-discovered evidence of, will warrant an injunction against a judgment 87 judgments obtained through, may be enjoined 109-118 INDEX. 605 Section. PRA.UD — Oontinued. defense at law prevented by, judgment may be enjoined . . 109 a ground of injunction against judgment by consent of parties 110 ■where fraud can not be urged as defense at law, judgment enjoined ; 113 construction of, under statute 115 in preventing defense of setoflf 189 in enforcement of lien 151 fraudulent representations tbat action in another state will not be prosecuted 160 fraudulent purchase at sheriff's sale 263 as affecting judicial sales of real property 267 fraudulent suppression of defects in title 279, 294 negligence in assertion of, a bar to relief 307 in obtaining conveyance where mortgage was intended . . 818 ground for enjoining tax 859 denial of, ground for dissolution 897 injunction on ground of, strictness as to dissolving .... 914 acquiescence in, a ground for dissolution 922 FRUIT TREES. {See Tbbbs.) GAMIKG, money lost in 128 judgment on gaming contract, when enjoined . , . 134, 135, 702 GARNISHEE, when injunction refused against 37, 758 injunction by, not a release of errors in attachment suit , . 91 effect of judgment against mortgagor as 312 GENERAL CORPORATIONS. (See Corpokations.) H. HEIRS AT LAW, action by, to recover possession 67 sale under judgment against 343 ejectment by, when enjoined 829 HIGHWAYS, (See RArLKOADS.) injunctions against, considerations of relative convenience and inconvenience 387 general rule as to enjoining 388 may be enjoined pendente lite 389 apprehensions ol future injury from 390 606 INDEX. Section. HIGHWAYS — Gontinued. failure to compensate for land taken, general rule .... 391 commissioners of, enjoined from proceeding before damages are adjusted 393 damages for opening, statutory remedy must be followed . 394 insufficiency of legal remedy, ground for injunction . . . 395 tender of damages incurred, a bar to relief 400 injunction against, only retained until damages are adjusted 402 regulation of by municipal autborities, cautiously interfered with by equity 403, 404 franchise of, exercise not enjoined where remedy exists at law 410 closing of, injunction against 411 re-opening of, after discontinuance 412 opening of, enjoined where it would greatly disfigure prem- ises 418 enjoined to protect parties in specific use of property . . . 414 nuisances to, considerations in enjoining 538, 529 franchise in road, protected by injunction 575-579 laying out of, to detriment of ferry 591 opening of across railway 801 HOMESTEAD, of bankrupt, sale not enjoined 215 of debtor, sale of may be enjoined 275 HORSE, unsoundness of, ground for enjoining judgment on note for purchase price IIJ HUSBAND AND WIFE, judgment against wife's estate 174 sale of wife's property in satisfaction of husband's debts . . 845, 459, 839, 84:^ wife will be protected by injunction in her separate estate . 83& where legal title is in husband equity will not interfere . . 840 when enjoined from incumbering estate 841 exemption of wife's estate by statute 84S husband not enjoined where he has instituted no proceedings 842 husband as administrator can not enjoin sale of wife's prop- erty under trust deed" 842 injunctions between, pending divorce 843, 845, 846 mere apprehensions of abandonment no ground for injunc- tion 844 action for goods sold wife, not enjoined 840 agreement not to institute divorce suit 840 control of children ' g^g removal of child from country 840 marriage of infant, when enjoined ! 840 IHDKX. 607 I. SsonoN. IGNORANCE, judgments enjoined because of 134-127 of fact and of law, distinction between 134, 125 of defendant in judgment . . . , 126 of assignee of note 137 an excuse for not pleading set-off 140 of counsel, no ground for injunction 178 of defendants as to subject matter, no ground for dissolution 915 INDEMNITY BOND, suit on, when enjoined 45 INJUNCTION BOND, judgment on, injunction refused against 204 deficiency in, no ground for reversing injunction against tax 382 dissolution on account of insufficiency of 937, 949 general purpose of 946 in absence of statute, court may impose terms 947 wben and on wbom operative 948 insufficiency of, not alone ground for dissolution .... 949 not vitiated by insertion of needless conditions 949 liability of obligors as to judgment enjoined 950 consideration of 951 condition of, wlien broken '. 951 additional and new security 952 sureties in, liability of 953, 954 remedy upon, not merged with remedy at common law . . 955 right of action on, when it accrues 956, 960 action on, brought in name of all joint obligees 956 election of defendant as to proceeding 958 equity of writ or solvency of defendant, no defense in action upon 959 want of jurisdiction in court no ground of defense .... 961 damages in action upon . . . '. 963-981 INSOLVENCY, (See Bankrtiptcy.) not of itself a sufficient ground for injunction 31 does not invalidate note 77 of judgment creditor, no ground for enjoining judgment because of set-off 141 of vendor, ground for enjoining collection of purchase money 393 of tenants, ground for enjoining 344 ground for enjoining construction of road 389 ground for injunction in cases of waste 433 of defendant, allegations as to in bill to enjoin trespass . . 467 608 INDKX. SBonoif. INSOLVENCY — OmUnued. insolvency of trespasser 475 not sufficient ground for enjoining violation of easement . 559 of bank, as ground for injunction 766 of partner, as ground for Injunction 816 of executors, not sufficient ground for .injunction .... 838 of debtor, as ground for injunction against surety .... 836 INTEELOCUTOKT INJUNCTION, definition of, when granted 3 not conclusive on rights of parties 3 object to preserve matters in statu quo 4 not retrospective in its operation 4 does not anticipate ultimate determination, and not decisive as to merits 5 utmost care exercised in granting 10 right to, not m debito justitim, but rests in sound discretion of court 11 full disclosure of facts required 11 discretion of court in refusing, not subject to review ... 16 when effective 20 only necessary that defendant should be apprised of its existence 20 usually granted on filing bill, requisites of bill 33 may be revived 41, 43, 930 IRREPARABLE INJURY, must appear before interlocutory injunction will be granted 10 considerations of, as between parties to the bill 13 mere allegations of, insufficient 35 in absence of, action of forcible entry and detainer not enjoined 65 must appear before construction of road will be enjoined . 388, 389 ground for restraining waste 421, 438, 429 ground for restraining nuisance 486, 491, 519 J. JUDGMENTS, {See Executions.) injunctions against, history of jurisdiction 84 the jurisdiction not a favorite one, its object 85 judgment must be against conscience to warrant an injunc- tion 86 what must be shown before judgment will be enjoined , . 86 when enjoined because of after-discovered evidence . .... 87 not enjoined because of defective jurisdiction 88 not enjoined when not oppressive .... . 89 INDEX. 609 SBonoN. J VD&MENTa—Oontirmed. if fairly obtained as between parties, not enjoined because of hardship to others 89 lien of, not divested by injunction 90 injunction against proceedings under judgment at law, stays proceedings in equity 90 injunction against, when a release of errors 91 effect of statute making injunction release of errors ... 93 injunction against, not allowed before payment of amount actually due 93 disposal of property under, can be enjoined only by judg- ment creditor . . • 94 injunction against, considerations relative to the bill ... 95 injunction against, not granted where effect would be to retry issue in equity 96 not enjoined where defense should have been made at law 97-108 not enjoined because of hardship where party has been guilty of laches 90 not enjoined because of failure of, or difficulty in procuring proof . . 101 not enjoined because new trial was refused 104, 175 may be enjoined where legal remedy not sufficient .... 106 injunction against, objection that defense is at law, how and when made 107 may be enjoined on ground of defendant's sickness at time of service 108 against defendant not suijwns, may be enjoined 108 obtained through fraud, may be enjoined 109-118 enjoined where defendant was prevented by fraud from making defense at law 109 by consent, enjoined because of fraud 110 obtained through fraud, diligence in asserting right . . . 114 in violation of agreement, may be enjoined 116 by default, when enjoined on ground of fraud 118 enjoined on grounds of accident, mistake, ignorance and surprise 119-138 enjoined because of accident 119 enjoined be6ause of mistake . 130-133 only enjoined as to amount greater than actually due . . . 133 enjoined because of ignorance . . 134-137 enjoined because of surprise 138 not enjoined because of mere irregularities 139, 197 not enjoined because of errors 130 not enjoined because void . . 131 not usually enjoined because of usury 133 exception to rule 133 39 610 ESDEX. Sbotios. JUDGMENTS — Gmtinueci. on gaming contracts, when enjoined 134, 135 not usually enjojned because of setoff 136 general considerations governing in cases of set-off . . . 136-143 as affecting title, when enjoined 143-156 of the court in which judgment was rendered 157-161 on awards, injunctions against 163-164 by default and confession 165-167 injunctions against, special cases 168-193 sale of bankrupt's property under, when enjoined .... 170 when enjoined on ground of part payment 171 in ejectment, forcible entry and detainer 174 injunction against, effect of death of parties 176 in faTor of assignee of note, when enjoined 177 not enjoined because of ignorance or mistake of counsel . . 178 for and against United States 179 not enjoined without payment of amount due 180 when enjoined on ground of sickness 181 not enjoined where amount is less than jurisdiction of court . 183 in replevin, when enjoined 183 not enjoined because amount may be realized out of two funds 183 void if obtained in violation of injunction 189 against sureties, when enjoined • . 190 against administrators, when enjoined 191 statute forbidding injunction against, except on payment . 193 injunction against, when granted on bill pro confesso . . . 194 must not be executed pending appeal on dissolution . . , 195 amount enjoined, when brought into court 195 not enjoined because of action of courts of law in discretion- ary matters 196 in slander, when enjoined 303 injunction against, proceedings on dismissal of bill .... 304 injunction against, dissolution .... . . 305, 207, 897 effect of dissolving injunction against 207 enforcement of after satisfaction, enjoined for prevention of cloud upon title 371 for purchase money, when enjoined on failure of title . .378-308 for partition, when enjoined 343 for benefits resulting from opening of streets, not enjoined because of irregularities 348 against municipal corporation, taxation in payment of . . 359 rules as to the parties in enjoining 749-752 dissolution of injunctions against 916-921 on dissolution, defendant may elect how to proceed .... 958 damages on dissolution of injunction against 965, 966, 968, 970, 979 INDEX. 611 Section JURISDICTION, governing principles where courts have co-ordinate powers . Vi court first obtaining jurisdiction will retain it 17, 41 writ served beyond jurisdiction may be effective 2(i relative jurisdiction of courts of law and equity .... 30, 3i jurisdiction by injunction strictly in pers&nam, not exercised beyond state 3^ want of, no ground for enjoining action at law 4b defect in, or want of, will not warrant injunction against judgment 88 judgment void for want of, not enjoined 131 concurrent, rule as to injunctions 157 of equity, not impaired by statute conferring equitable powers upon courts of law . 179 of ecclesiastical tribunals, conclusive on ecclesiastical offenses ' 333 in cases of the infringement of patents 634 want of, no ground of defense to injunction bond .... 961 want of, will not deprive defendant of damages on dissolution 975 L. LA.CHBS, generally a bar to relief by injunction 7 a bar to injunction against action on award 71 in defending at law, a bar to injunction against judgment . 86 defendant guilty of, can not enjoin judgment at law ... 99 bars relief against judgment on award 164 bars injunction for purpose of new trial 175 bars injunction against collection of purchase money . . . 307 bars injunction against construction of railway 397 bars relief against waste in mines 457 bars relief against nuisance 494, 505 bars relief against violation of franchise 574, 578 bars relief against infringement of copyright 643 bars account for piracy of trade mark 694 bars relief against breach of covenant 730 bars relief against abuse of corporate authority .... 768, 771 effect of, in punishing breach of injunction 869 as affecting dissolution 894, 943 ground for dissolving injunction affecting realty .... 932 LANDLORD AND TENANT, proceedings by lessor to recover, not enjoined 68 loss by fire no ground for injunction between 73 injunction refused between 834 removal of crops by tenant 337^ 344^ 44I 612 mDEx. SEonoir. LANDLORD AND TENANT— CoraimMefZ. injunctions between, against waste 440, 441, 443 tenant enjoined from removal of mineral deposits .... 455 lessees enjoined from changing use of building . . . .442,499 easements in light as between 554 lessees not enjoined from erecting works to draw off water in violation of lease 563 protection of franchise as between 583 covenants in lease as to use of premises, injunctions against violation of 714-716,719,724,726,731 covenants in lease binding on sub-lessee and assignee . . . 716 LANDS. {See Real Pbopbrtt.) LEASE. {See Contract, Lanblokd aud Tenant.) LEGATEE. {See Real Peopbbty.) LESSEE. {See LANDLOto and Tenant.) LETTERS. {See Coptbights.) LEVEE, construction of, when enjoined 416, 510 LIBEL, publication of, not enjoined 666 LICENSE. {See Patents.) CIEN, effect upon, of injunction against judgment 90 fraud and negligence in enforcement of 151 holder of prior lien can not enjoin subsequent judgment creditor 154 property not subject to, sale enjoined 181 of mechanics, when protected 200 irnrn fide, not affected by bankrupt act 314 of judgment, effect of in determining right to injunction . 835 enforcement of, in violation of agreement 335 LIGHT. {See Easements.) LIMITATIONS, STATUTE OF, suspended by injunction 20 no ground for enjoining action of ejectment . . . .63, 64, 331 plea of, not enjoined in absence of fraud 73 ground for injunction where sickness prevented defense at law 181 plea of, no ground for dissolving injunction 944 LOTTERY. (fif«« Franchises.) M. MANDAMUS, will not lie to control inferior court as to granting inter- locutory injunctions 10 ESDEX. 613 Sbotion. MANDATORY INJUNCTIONS, , definition of 2 jurisdiction rarely exercised 2 same result may be attained indirectly 2 considerations of relative convenience 2 to deliver possession 260 against trespass 478 against nuisance 500 to restore water to natural channel 512 MILLS, {See Easements.) cautiously enjoined 495 erection of, near railway track 498 diversion of water from 504, 515, 517 tenants in common of 515 rights of mill owners 556 obstruction of flow of water 558 right to use of water as between mill owners 564 injury to, by acts of swamp land inspectors 803 MILL DAMS, {See Nuisance, Easements.) nuisances to or by 513, 514, 518, 526 destruction of, by municipal corporation 517 purchaser of, right to use water 563 MINES, protected by injunction ^«ji^e»i6 Mie 253 account in cases of waste 452 waste in, diligence required 457 trespass to, general rule 468 title and possession in cases of trespass 469, 470, 471 flowing of refuse matter in 471 coal, lead ore 472 removal of asphaltum 474 dispute as to mining rights a ground for refusing dissolution 943 MINISTER. {See Ecclbsiastical Matters.) MINOR, judgment against, not enjoined 103 MISTAKE, a ground of injunction against actions at law 45 of jury, ground of injunction against judgment .... 87, 122 ground of injunction against judgment 110, 120-123 of law and fact, distinction between as ground for enjoining judgment 130, 121 of clerk 133 of counsel, no ground for injunction 178 in description in mortgage, ground of injunction .... 330 of fact, ground of injunction against ejectment 838 614 INDEX. Sbotios. MORTaAGE, foreclosure of in foreign country, when enjoined 59 sale under foreclosure of, injunction refused 148, 153 foreclosure sale, growing crops 154, 333 of railroad property 185, 331 foreclosure of, in bankrupt proceedings 333 sale under, to secure purchase money 284 sale under, general rule as to enjoining 309 foreclosure of, general rule as to enjoining 311 cases where the relief is refused 313 tacking, sale of equity of redemption, rents and profits . . 315 execution of by foreign corporation, not enjoined .... 316 sale under, as between prior and subsequent incumbrances . 319 mistake in description 830 doubt in construction of, ground for relief 321 foreclosure of, where mortgage is satisfied 331 of chattels, when injunction allowed 333 upon wife's land 345 as security for suretyship on official bond . , 836 MORTGAGEE, when enjoined from foreclosure 66 not enjoined from executing judgment in ejectment . . ' . 153, 328 when restrained from sale until account 181 rights of, under bankrupt law 223 rights of prior and junior mortgagees 315, 319 enjoined from selling equity of redemption 315 when entitled to injunction against waste 441 117 fraud of, ground for enjoining sale 698 when entitled to damages for emblements 976 MORTGAGOR, when enjoined from committing waste . . 40, 313, 814, 444-447 when may enjoin moi:tgagee from foreclosure 66 of chattels, enjoined from their removal 323 MULTIPLICITY OF SUITS, injunction not granted where it would cause multiplicity of suits 9 prevention of, favorite ground of injunction 12 when prevented by bill of peace • 53 prevention of, ground for enjoining actions of ejectment . . 839 prevention of, ground for enjoining tax 374 trespass enjoined for prevention of 459,473 nuisance to roads enjoined for prevention of 539 MUNICIPAL CORPORATIONS, judgment confessed by 167 when enjoined from disturbing possession 265 taxes imposed by ft6&-875 proceedings of, not usually reviewed in equity .... 371 INDEX. 615 Sbotioh. MUNICIPAL CORPORATIONS— ComWraM«d. irregularitiea in proceedings of, no ground for enjoining sale of lands for taxes 348 encroachments by, on property of private citizens, wlien enjoined •. . 350 judgments against, taxation in payment of 359 taxing power of, inadequacy a ground for injunction . . . 395 appropriation of private property by 399, 789 regulation of streets and liigliways by, cautiously interfered with 403, 404 excess of autliority of, in construction of street railway . . 415 destruction of mill dam by ■ . . 517 rights of, as to obstruction of streets by railways .... 531, 533 - abatement of nuisances by 540 corporate authorities of town proper parties to enjoin public nuisance 755 execution of resolution of common council 756 jurisdiction in restraint of, founded in trust 783 general rule as to enjoining 783,784 citizens and tax payers proper parties to a bill .... 784, 793 proceedings of, not reviewed in equity 785 not enjoined from entering into contract 786 not enjoined where right is doubtful 786 ordinances and resolutions, distinction between enjoining passage and enforcement of 787 ordinances restraining acts not nuisances 788 opening of streets by 789, 790 holders of municipal securities 791, 794 wrongful use of corporate property enjoined 793 use of schoolhouae for religious purposes enjoined .... 792 general rule as to enjoining corporate authorities from illegal acts under color of right 793 party aggrieved must show special injury 794 unconstitutional ordinance, enforcement enjoined .... 794 two bodies attempting to act as common council .... 799 violation of injunction by common council 863 NEGOTIABLE PAPER. {See Pkomissobt Notes.) NEW TRIAL, refusal of, no ground of injunction against judgment . . 100, 104 NUISANCE, tax in abatement of, sale of lands enjoined 373 laying of railway track not a nuisance per se 409, 530 foundation for the relief against 485 616 ESDEX. Section. NUISANCE — Oontinued. distinction between nuisance and trespass 485 general rule as to enjoining 486 establishing right at law 487 if uncertain or contingent, not enjoined 488 works not enjoined where theii- character can not be deter- mined before completion 489 to buildings, general rule 490 loss of health or comfort 491 stench from cattle yard 493 manufacture of gas 493 injunction against, barred by laches 494, 505 jurisdiction against, cautiously exercised in case of mills . 495 prevention of use of surrounding premises 496 dissolution of injunction against 497 enjoined where damages are diSBcult of estimation .... 498 change in use of building enjoined 499 party walls 499 parties to the bill 500 when mandatory injunction allowed 500 to water, foundation of the jm-isdiction 501, 503 considerations governing in granting relief against nuisances to water 503,504 adverse possession and user of water as affecting question of nuisance 507, 508 surface water and subterranean streams 509 construction of levee 510 to water as between United States and states 511 filling up of stream enjoined 513 mill dams 513-518, 536 purpresture 519, 530 public nuisance, not enjoined where there is a remedy at law 531 public nuisance, general rule as to injunction in behalf of private persons 532 public nuisance can not exist in act warranted by law . . 523 public nuisance in obstructing flow of river 534 obstruction of public square 534 act not enjoined where there is no violation of private ri^ht . 525 obstruction of navigable creeks 526 adverse possession no bar to injunction against public nuis- ance 637 governing considerations in restraining nuisances to roads 538, 539 injunctions against railways on ground of nuisance . . 530, 534 obstruction of streets by railways 531, 533 erection of bridges, when enjoined on ground of nuisance . 535, 536 lawful business conducted lawfully, not enjoined .... 537 nuisances to lateral support enjoined 538 INDEX. 6 IT Seotioit. NUISANCE — ContinuM. violation of burial ground 539 ordinances of municipal corporations against 540 houses of ill fame 541 acquiescence a bar to relief against 543 injunction against, wben perpetuated 543 public nuisance, corporate authorities of town proper parties to enjoin 755 unauthorized exercise of banking powers not a 765 o. OFFICERS, {See Cobpoeations, MtwrtcrpAi Corpobations.) suits against officers of court, when enjoined 50 state officer enjoined from destroying franchise granted by United States 61, 593 having execution, necessary party in enjoining judgment . 115 improper conduct of marshal under warrant in bankruptcy . 233 improper assessment by street commissioners 376 of court, may be enjoined 347 of government, not enjoined from removal of temporary structures ... 351 improperly elected, levy of tax by 354 improper action of taxing officers 360 mistake in judgment of, in assessing taxes 361 defaulting tax collector, execution against not enjoined . . 386 commissioners of highways 414 exercise of discretion or judgment of, rarely enjoined . . 763, 797 not enjoined from exercise of functions 774,798 directors of corporation 775 of corporation, not enjoined on a bill for receiver .... 783 improper diversion of funds by state treasurer 794 general rule as to enjoining public officers 796 proceedings of, not reviewed in equity 797 right of to office, not determined in equity 798, 799 two bodies attempting to act as common council of city . . 799 effect of injunction against 800 possible remedy at law no bar to injunction against ... 801 commissioners for creation of new county, when enjoined . 803 inspectors of swamp lands, excess of powers of 803 degree of interest required of complainant seeking to enjoin 804 President of United States, not enjoined from enforcing law of congress 805 agents of government, public improvements by 806 acting under state authority 807 town officers, delivery of railway bonds by 808 618 INDEX. Section. OFFICERS — Continued. commissioners appointed under unconstitutional law . . . 809 trustees of town, enjoined from complying with vote . . . 809 trustees of cliurch, enjoined from leasing cliurch for school purposes 809 PARTIES, (See Cokporations, MyincrpAL Cobpoeations, Offi- cers, Pabtnbks, Exbcutokb, Administbators, Sdeb- TiBS, Husband akd Wifb.) rules governing in enjoining proceedings at law 50, 51, 749, 753 to judgment, must be before court before injunction allowed 95 who necessary, in enjoining judgment 115 death of, effect on injunction 176, 1013, 1013 injunction as between tenant for life and remainder-man . . 356 in cases of injunction against waste 438-447 in cases of nuisance 500 in cases of the infringement of patents 633 in cases of the piracy of trade marks 683, 683, 687 joinder of, general principles governing 746 must usually be before the court 747, 748 where interests of the public are affected 747 where common right of several persons is affected .... 748 to bill for injunction against judgment in United States court 758 where injunction is sought against violation of public ease- ment 753 to enjoin public nuisance . . 755 legal or equitable interest a test as to . 756 where execution of resolutions of common council is sought to be enjoined 756 tax payers of school district may enjoin judgment against district 757 where injunction is sought to protect rights of churches . . 759 as between principal and agent 760 general corporations 761-783 defect in joinder of 781 municipal corporations 783-795 to bill to restrain acts of municipal corporation .... 784, 794 to bill to enjoin improper use of corporate property . . . ' 792 public ofiacers 796-809 partners 810-836 executors and administrators 837-831 sureties 833-838 husband and wife 839-846 rNUEx. 619 _ • SBonoN. PARTIES — Continued. improper joinder of, will not avail defendant on motion to dissolve 915 to action on injunction bond 956 PARTNERS, action for purcliase money of partnership property, -when enjoined '. 56 waste by 443 rights of, in partnership name j . . . 686, 832 general rule as to injunctions between 810 Insanity of partner 810 obstruction of partnership rights 810 mere temptation to dishonesty no ground for enjoining . . 811 in newspapers 811, 817 publication of letters of , 813 violation of copartnership articles 813 levy upon firm property for individual debts of 814 exclusion of from business 815 giving warrant of attorney by 815 injunctions against, upon dissolution of firm 816 court will look to nature of business and scope of authority . 817 agreements against carrying on firm business 818 injunctions against, after dissolution of firm 819, 835 fraudulent assignment of copartnership efiects 820 improper disposition of partnership notes or property . . . 831 injunction against representing person as a partner .... 833 dissolution of injunction between 838 appointment of receivers 834r-836 insolvency of, as ground for injunction 816, 835 continuance of injunction as alfected by appointment of receiver 826 admissibility of afBdavits in support of bill 1005 PARTY WALLS. (See Easements.) PATENTS, injunctions to restrain infringement of, foundation of the jurisdiction 603 general considerations governing 608 establishing right at law 604 province of the writ, discretion of the court 605 title and infringement must be clear 606, 631 controversy as to the right, a bar to relief in equity .... 607 presumptions in favor of novelty of 608 acquiescence by the public 609 effect of prior adjudications 610 prior adjudications, when conclusive 611 extension of ... ^ 612 620 INDEX. Seotiok. PATENTS — Oontinued. prior judgments by consent 613 effect of award 613 prior adjudication not necessarily conclusive 614 effect of reissue 615 effect of defendant's hona fides 616 injunction not allowed on patent alone 617 security in lieu of injunction . . 617 considerations of hardship and inconvenience 618 prima facie evidence of title not alone sufficient 619 acquiescence of patentee may bar relief 620 use without license 620 defendant's pecuniary responsibility .... ... 621 injunction not allowed merely to recover damages .... 621 injunction may be withheld on condition of defendant's accounting 633 English rule " no injunction, no account," not applicable here 633 trial at law, when required 634 possession before letters patent, effect of 625 denial by the answer will not prevent the court from investi- gation ... 626 injunction not withheld because security is tend^-ed . . . 636 dissolution of the injunction 637, 636 injunction binding on licensees 628 patentee must be diligent in assertion of his right .... 639 infringement need not have actually occurred 630 effect of subsequent patent to defendant 631 proof required 633 parties for and against whom relief is granted 633 jurisdiction of the person 634 sale of articles manufactured before expiration of patent . . 635 injunction extended to assignee 635 delay in proceeding at law, a ground for dissolution . . . 636 failure to mark patented articles 637 relief may be allowed at final hearing 637 process of manufacture may be protected though not patented 638 jurisdiction exercised over foreigners 639 violations of the injunction 640 sale of patent with covenant against manufacturing . . . 741 attachment for breach, admission of affidavits 876 admissibility of evidence on motion to dissolve 1008 PAYMENT, of note, injunction refused 103 of debt, ground for enjoining judgment 119 partial, as affecting right to injunction 171 PENALTY, (Se« OoNTBACT.) in bond for conveyance, relief against 341 INDEX. 621 Sbotiow. PERPETUAL INJUNCTION, granted at final hearing, conclusive as to right ..... 3 where improperly granted, proceedings subject to review by appellate court 16 may be granted, though not prayed in bill 40 may be granted, though interlocutory injunction was im- proper 43 not allowed against judgment unless all parties are before the court 95 rarely granted against collection of purchase money because of defective title 302 when granted against proceedings in ejectment 332 when granted against trespass 484 when granted against nuisance 543 when granted against violation of easement 561 against infringement of patents 634 not usually granted on refusing dissolution 935 PERSONAL PROPERTY, judgment for purchase money of, enjoined on ground of fraud 113 sale of under execution, when enjoined 146, 187, 189 effect of injunction against sale of 189 mortgages of, when injunction allowed 323 distinction between taxation of personalty and realty . . 366, 370 sale of, not enjoined where remedy is at law 366 sale of in satisfaction of tax, when enjoined 385 removal of by tenant for life 439 PETITION, English and American rule as to enjoining - 19 when writ granted on 32 injunction granted on, in aid of bankrupt proceedings . . 225 right to petition legislature to change objects of incorpora- tion 772, 773 PEWHOLDERS, can not enjoin running of street cars on Sunday 23 rights of in church property 245, 246 PHYSICIAN, contract not to practice as a 737 PLEADINGS, bill should show some primary equity 7 bill should show clear rights and apprehension of immediate injury 7 allegations of fraud must be specific 28 rule not relaxed by statute 29 bill demurrable where remedy is at law 30 requisites of bill for interlocutory injunction 32 bill must contain positive averments , 85 622 INDEX. Sbotioit. PLEADINGS —Omtinued. allegations on information and belief not sufficient . . . 36 verification of bill, requisites of 37, 38 verification on knowledge and belief insufficient 37 writ not granted on same bill after refusal or dissolution . . -43 amendments to bill . . . ' 43, 997-1000 requisites of bill to restrain action at law 49 requisites of bill to enjoin suit on ground of confusion of boundaries 67 plea of statute of limitations, not enjoined 73 bill to enjoin judgment, nature and requisites of . . . . 95,104 Mm est factum, defendant prevented from pleading may enjoin judgment 113 bill to enjoin judgment on ground of ignorance, requisites of 136 bill for injunction in aid of bankrupt proceedings .... 330 in proceedings in bankruptcy 325 bill to enjoin collection of purchase money ....... 384 bill to enjoin foreclosure of mortgage 311 bill to enjoin proceedings at law because of confusion of boundaries 343 bill to enjoin enforcement of taxes 863 bill to enjoin trespass 461, 467, 468 bill to enjoin nuisance 498,516 bill for protection of easements in water 558 in patent causes 633 in actions for infringements of copyrigbt 663 bill to restrain acts of corporation 761, 779, 781 improper verification of bill, a ground for dissolution . . . 939 motion to dissolve before answer, operates as a demurrer . . 941 verification of bill by only one complainant, no ground for dissolution 945 verification of bill 984-987 bill sbould contain specific prayer for injunction .... 988 all material facts must be stated in bill 990 allegations of bill must be positive 995 amendments 997-1000 POSSESSION, not usually awarded by injunction 15, 473 modifications of the rule 15 writs for restoring, when enjoined 153 iiyunction not usually granted to interfere with 357 exceptions to general rule 258, 359 mandatory injunction to deliver 360 proceedings to recover, enjoined only on strong showing . . 361 of real property, under devise 363 not interfered with where remedy is at law 362 complainant must make clear showing 263 INDEX. 623 Section. POSSESSION— Continued. proceedings by heirs to recover 264 ■will be protected if long and uninterrupted 265 under tax deed 274 bill to quiet, injunction not allowed 339 of railroad, not determined by injunction 407 effect of, in enjoining trespass 466 of mines in cases of trespass 469, 470 in cases of franchises 578 PRACTICE, amendments to bill, rules governing 43, 997-1000 in determining piracy of copyright 645 generally regulated by statutes and local usage 982 in granting 983 verification of bill 984-987 verification must be positive 984 verification by corporation 985 nature and requisites of the affidavit 986 verification, when dispensed with 987 specific prayer for injunction necessary 988 inttrlocutory injunctions usually granted on bill alone . . 989 motion may be made at any time before decree 989 effect of answer 989 all material facts must be alleged in the bill 990 admissibility of affidavits in opposition to motion for injunc- tion 991 admissibility of affidavits in support of bill 992 notice of application for injunction 993, 994 motion for renewal after dissolution, not entertained on sub- sequent testimony 994 positive allegations required in bill 995 form of the writ 996 general rule as to amending bill 997 amendment after dissolution 998 amendment without prejudice to injunction 999 supplemental bills 1000 practice in dissolving injunctions 1001-1019 motion for dissolution, when entertained 1001 notice of motion for dissolution 1002, 1003 objections and exceptions to the answer 1004 admissibility of affidavits in support of bill, on motion to dissolve 1005 admissibility of affidavits in support of answer, on motion to dissolve 1006 distinction between common and special injunctions . . . 1007 admissibility of evidence in patent causes 1008 new matter in the answer 1009 624 INDEX. Section. PBACTICB — Continued. departure from rule excluding affidavits on motion to dis- solve 1010 objection as to insufficient security, wlien taken 1011 practice on death of complainant 1013 practice on death of defendant 1013 continuance of motion to dissolve . , 1014 effect of sworn answer 1015 multifariousness of bill 1016 improper joinder of parties 1016 defective verification, not supplied on motion to dissolve . . 1017 effect of exceptions to answer 1018 practice in discharging injunctions irregularly obtained . . 1019 filing of answer waives error in refusal of dissolution . . . 1019 PROCEEDINGS AT LAW APTER JUDGMENT. {See Jtog- MENTS, EXECUTIOKS.) PROCEEDINGS AT LAW BEFORE JUDGMENT. {See Actions AT Law.) PROCESS, defective service of 131 irregularities in service of 129 service of beyond jurisdiction 158 PROMISSORY NOTES, fraud in obtaining, a ground for injunction 45, 709 suit on, not enjoined where tender of amount due is not made 46 failure of consideration for, when ground of injunction . . 55, 56, 168, 169 action on, not enjoined for protection of other creditors . . 77 judgment on, when not enjoined on ground of payment . 103, 710 judgment on, injunctions granted and refused 113, 113 loss of agreement relating to, ground for enjoining judg- ment 119 judgment on, when not enjoined because of mistake . . . 130 judgment on, in hands of assignee, as affected by ignorance . 137 judgment on note for gaming consideration 135 judgment on, for purchase money of land sold under decree 161 judgments in favOr of assignee of, when enjoined .... 177 barred by statute of limitations, judgment enjoined . . . . 181 for purchase money, injunction on failure of title .... 279 secured by deed of trust 341 conversion of, in breach of trust 710 effect of injunction restraining payment of 711 negotiation of, enjoined on ground of fraud 713 judgment on, enjoined on ground of undue influence . . . 713 partner may be enjoined from drawing or indorsing . , , 816 INDEX. 625 Seotion. PROMISSORY 'NOTHS—Gontinmd. accommodation indor§er in position of surety 834 damages on dissolution of injunction 972 PROOF, failure of, or difficulty in obtaining, no ground for enjoining judgment 101 burden of, on motion to dissolve 881 PUBLIC NUISANCE. (See NmsANCK.) PUBLIC OFFICERS. (See Ofpicess.) PUBLIC RIGHTS, protected by injunction, tbough state is not a party to the cause 18 PURCHASE MONEY, (See Title.) judgments for, when enjoined on failure of title 149, 150, 378-308 collection of, in violation of agreement, enjoined 396 collection of, not enjoined because of unliquidated damages 306 collection of, injunction refused where sought on ground of unpaid taxes 306 injunction against collection of, diligence necessary . . . 807 of partnership, when collection of may be enjoined .... 831 PURCHASER, at sheriff's sale, in possession, not enjoined 15 of real estate, when may enjoin sale under judgment . . . 145 subsequent, when may enjoin sale of realty 151 at trust sale 198 when allowed to enjoin sale for prevention of cloud upon title 375 of lands, injunctions against unpaid purchase money on failure of title 378-308 under trust deed, injunction refused 310 at foreclosure sale, when may enjoin ejectment 320 may enjoin sale of realty on expiration of lien 335 compelled to accept title 340 in possession, may enjoin vendor from removal of improve- ments 343 proceedings by, to recover back purchase money 349 under decree in equity, enjoined from acting contrary to decree 747 FURPRESTURB, definition of 519 Injunctions in restraint of ..... 620 40 626 imms. Q. SZOTIOIl. QUARRTUiTG, when enjoined on ground of waste 450 when enjoined as a trespass 479, 483 K. RAILROADS, (ygee Highways.) mortgage of property of, judgment against 185 omission to tax property of 358 taxation of stock in wrong locality 861 tax in aid of subscription to, when enjoined 369 injunctions against, considerations of relative convenience and inconvenience 387, 388 failure to compensate for land taken 391-394 failure to comply with statute 393 damages for property taken in construction of, statutory remedy must he followed 394 failure to comply with contract, no ground for injunction . , 396 laches a bar to injunction against 397 injunction against, refused where party is estopped by his own conduct 398 twenty years occupancy by, a bar to relief 398 parties entitled to injunction against 399 owner of lands not enjoined by railway in default .... 401 strict compliance with terms of charter exacted .... 405, 406 right to injunction as between railway and canal . . . 406, 595 right to possession of, will not be determined by injunction . 407 laying of track in street, when enjoined 408 laying of track not a nuisance per ee 409 injury to mill by 409 unauthorized extension of 412, 598 property of, acquired for specific purpose, protected in equity 414 street railway enjoined where power has been exceeded . . 415 enjoined from planting trees 416 jurisdiction cautiously exercised 417 non-compliance of with duties as common carrier .... 418 . trestle work of, in street 433 interference with on ground of nuisance 538-534 construction of in streets 531^ 533 593 street railway, not enjoined by one who sustains no special i°j™7 533 construction of, for private benefit 534 rNBsx. 627 Sbotiok. RAILROADS — Oontirmed. injunction against, whiere dependent upon rights under charter 638 franchise entitled to protection 575-5T9 railway bridge, when a violation of franchise 583 discretion of officers in locating 763 enjoined from becoming shareholder in another company . 767 restrained from departure from pUrpose of incorporation . 770 ofiBcera of, not enjoined on bill for receiver 782 street railway not enjoined from laying its track 790 opening of road ajjrosa 801 delivery of bonds in aid of 808 dissolution of injunction against 888, 926 HEAL PROPERTY, {See Mortgage, Title, Cloud to"On Title, PtTRCHABE Monet, Ejectment, "Waste, Tbbspass, Nuisance, Easements, Taxes.) actions affecting, when enjoined 62 ejectment for, when enjoined 62-64, 324-833 title, assertion of not enjoined unless case is free from doubt 63 bond for conveyance of, when suit upon will be enjoined . . 66 bill not entertained where defense may be made at law . . 68 judgments affecting, when enjoined 143-146 grantor of, when may restrain sale under judgment against former owner 145 proceedings against, enjoined to prevent cloud upon title . 147, 148, 269-277 purchase money of, when judgment for enjoined on failure oftitle 149,150,278-308 writs concerning, when enjoined 152 sale of under execution, enjoined because of collusion . . 166 levy upon, may be enjoined because of superior title . . . 185 conveyance of to church 228-330, 353 courts of equity adverse to interference with 247, 339 title to, not interfered with in absence of fraud, acccident, or mistake 24f judicial sale of, not enjoined on ground of irregularities . 248 injunction in cases of, not granted where remedy is at law . 24i disposal of, only enjoined by judgment creditor 350 injunction sometimes- allowed on ground of accident . . . 351 dedication of to public use 252, 551, 79£ injunction for protection of mining property 25a affected by trusts 354,356 injunction as between tenant for life and remainder-man . 356 possession, injunctions in aid of 257-266 sales of, where judgment debtor has no title 266-268 sales of, not usually enjoined for want of title 266 legal and equitable title, distinction 368 628 mDKx. Seotion. REAL THOPEBTY— Continued. issuing of patent for lands, not enjoined 377 mortgages and de ds of trust 309-333 landlord and teni.iit, injunctions between 334 effect of judgment lien in determining right to injunction . 335 use of estovers, when enjoined 336 removal of crops by tenant 337 judgment creditors and devisees, injunction as between . . 338 purchaser of, when compelled to accept title 340 entry upon under reserved rights, no ground for injunction . 841 removal of fruit' trees and shrubbery from "843 confusion of boundaries, injunction on account of ... . 843 tenants in common of, injunction between 343 tenants on shares, removal of crops 344 of wife, sale of to satisfy husband's debt 345 conveyed in trust by debtor, sale enjoined 346 sale of by commissioner in chancery 347 sale of for taxes, not enjoined because of irregularities . . 848 proceedings to recover back purchase money 349 of private citizens, encroachments upon by municipal corpo- rations . 350 removal of temporary structures by ofBcers of government . 351 burial ground, removal of bodies by legislative authority . 353 distinction between realty and personalty in enjoining against sale for taxes 370 appropriation of for highways and railroads, non-payment of damages a ground for enjoining 391-403 illegal appropriation by public officers enjoined 796 dissolution of injunctions' affecting title to . ^ . . . . 933-936 RECEIVERS, appointed by state courts, not enjoined by bankrupt court . 331 when appointed for protection of cestui que trust 355 on bill for, officers of corporation not enjoined 783 in partnership matters 834-836 RECORDS, alteration of, ground for enjoining judgment Ill RELEASE OF ERRORS, when injunction operates as a 91, 93 REMAINDER -MAN, injunction as between remainder-man and tenant for life 356, 456 entitled to injunction against waste 438 fears of, no ground for enjoining waste 439 not allowed to enjoin breach of covenant 734 REMEDY. (See Injttnction Bond.) REMEDY AT LAW, bars relief by injunction 30 valid objection to injunction against action at law .... 46 mDEX. 629 Sbotion. REMEDY AT LKW—Oontinued. existence of, a bar to injunction against judgment at law. . 98 objection that remedy is at law, bow and when made . . 107 bars injunction in actions affecting realty 349 bars injunction for prevention of cloud upon title .... 373 bars injunction agaiiist collection of unpaid purchase money 383 where inoperative, collection of purchase money enjoined . 399 bars injunction against waste by mortgagor 814 bars injunction against action of ejectment 835 bars injunction against taxes 353-355, 865, 366, 371 bars injunction against trespass 459 bars injunction in cases of contracts 697 REPLEVIN BOND. (See Bond.) REVERSIONER. (See Rbmaindeb-Man.) EIGHT AT LAW, (See Waste, Trespass, Nuisaitcb, Fban- CHiSBS, Patents, Copybights.) when must be determined before injunction 8, 12 interlocutory relief allowed pending determination of . . . 8 RIGHT OF WAY, (See Nuisance.) protection of, general principles pertaining to 565 obstruction to, not enjoined pendente lite 566 effect of statute 567 prescriptive right *. 568 verbal permission by owner of land 569 SALE, S. sheriff's, purchaser in possession not enjoined 15 under execution, not enjoined because of part payment . . 98 bill of, judgment enjoined because of fraud in obtaining . . 114 under execution, enjoined on ground of collusion .... 118 of real estate, not enjoined because of irregularities . . 143, 348 under execution, of property belonging to third person . . 144 of real property under paid judgment 145 of personal and real property, distinction 146 of real property, enjoined to prevent cloud upon title . . 147, 148 of realty, when enjoined by subsequent purchaser .... 151 under foreclosure 153 of trust property 153 under decree, by commissioner in chancery 156 of bankrupt's property, when enjoined 170 under execution, when injunction becomes operative . . . 173 of vessels, under execution in favor of United States . . . 179 of personal property, effect of Injunction . '. 189 630 INDBX. SBOTIOlf. S A.LE — Continued. of bankrupt's property, when enjoined 318- under mortgage pending proceedings in bankruptcy . . 223 of ctiurcli property by trustees 239 judicial, not enjoined because of irregularities 248 judicial, where judgment debtor has no title 266-368 not usually enjoined because of want of title 366 judicial, enjoined to prevent cloud upon title 369-377 of hazard, injunction refused 287 judicial, conflict of authority as to enjoining on failure of title 295 under mortgage, general rule as to enjoining 309 under trust deed, rule as to enjoining 310 under trust deed, not enjoined because of scarcity of money . 317 under conveyance intended as mortgage, may be enjoined . 318 as between prior and subsequent incumbrancers 819 of realty, effect of lien in determining right to injunction 335 under deed of trust, not enjoined because of suit on notes . 341 of intestate's land, when enjoined 343 of wife's property under execution against husband . . . 345 of debtor's trust property 346 of lands by commissioner in chancery 347 of lands for taxes, not enjoined because of irregularities . 348, 356 by sheriff after expiration of his term 354 of lands for taxes, not enjoined where remedy is at law . . 366 of personal property for taxes, when enjoined 370, 385 of lands for taxes, enjoined because of illegal exemption . 373 of lands for payment'of tax to abate nuisance 373 of mortgaged premises, enjoined on account of fraud . . . 698 of corporate property, fraudulent 779 by executors, not enjoined because of insolvency 838 of wife's property held in trust 839 of real estate under execution, doubt a ground for refusing a dissolution 923 under trust deed, damages for enjoining 971 SCHOOL DISTRICT, member of, may enjoin sale of his property to satisfy judg- ment against district 181 SECRETS, disclosure of may be enjoined 32 SET-OFF, when enforced by injunction .74 as ground for enjoining judgment ,36-143 not usually ground for enjoining judgment 136 should be pleaded at law 136, 137 equitable set-off i 138, 143 nsDEX. 631 Section. SET - OFF — Oontirmed. , defense of, prevented by fraud 139 ignorance in failing to plead 140 as aflfected by insolvency of judgment creditor 141 after-acquired, reduced to judgment 143 SEWERS. {See MuinciPAii Coepoeations.) SHAREHOLDERS. {See Cokporatioks.) SHERIFF, can not enjoin suit where statutory remedy exists ... 83, 193 sale by, purchaser in possession not enjoined 15 false return by, ground of injunction 126 duty of, on being enjoined from proceeding with execution . 181 statute protecting, effect of 193 injunction against, effect of 201 . sale under execution by, not enjoined for want of title . . . 367 sale under execution by, not enjoined where there is a remedy at law 373 failui-e of to make report of sale 317 delivery of deed by, when enjoined 330 sheriff's deed, ejectment under 337 sale by, after expiration of his term 354 injunction against, refused in aid of oppressive action at law 807 SLANDER, judgment in, when enjoined 203 of reputation, no ground for injunction 693 SOLICITOR. {See Attobnet.) SPECIFIC PERFORMANCE. {See Contbact.) STATUTES, violations of, not enjoined 23 effect of, authorizing injunctions against transfer of debtor's property 29 remedy by statute a bar to an injunction 31, 82 forbidding injunctions against judgments except on payment 192 protecting sheriffs, effect of 83, 193 STEAMBOATS, exclusive navigation of rivers by 600 STOCKS, {See Banks, Railkoads, Corporations.) transfer of, enjoined 760 illegal issues of 775- STOCKHOLDERS. {See Corporations.) STREET CARS, running of on Sunday, not enjoined 33 STREET RAILWAYS. {See Railways, Streets, Franchises.) STREETS, {See Hishwats, Railroads, Right of Wat.) opening of, irregularities in I43 343 632 INDEX. SBonoJT. STEEETS— Offntinued. improper assessment for benefits in opening 376 adverse possession of, for twenty years 350 acquiescence in proceedings relative to 364 taxation for paving 370, 375, 383 damages in opening, legal remedy must be followed . . . 394 insufficiency of legal remedy a ground for injunction . . . 395 regulation of by municipal corporations, cautiously inter- fered with 403,404 laying of railway track in 408, 409 erection of trestle work for railway in 483 construction of railways in 531, 533 SUITS. {See Actions at Law.) SUNDAY, running of street cars on, not enjoined 33 SUPPLEMENTARY INJUNCTION, when allowed 41 not granted on same bill 43 SURETIES, [See Injunction Bond.) of partner, wben entitled to injunction '56 in replevin bond 155 injunctions for protection of 173 judgments against, enjoined on ground of indulgence to principal 190 insolvency of, no ground for restraining administi'ator from acts of waste ... 448 general rule as to protection of 833 effect on, of agreement with debtor for forbearance . . . 833-835 injunction against, as affected by insolvency of principal . 836 when entitled to restrain removal of mortgaged property . . 836 effect of statute upon right to injunction 837 in replevin bond, denied injunction for purpose of compel- ling levy on principal's property 838 proceedings between, for contribution 838 in injunction bond, liability of 953, 978 SURPRISE, ground of injunction against judgment 138 T. TAX DEEDS. {See Taxes.), TAXES, possession under tjx deed, when not enjoined 274 improper assessment of, in opening streets 376 unpaid, no ground for enjoining collection of purchase money 306 INDEX. 633 TAXEa—Oontinued. injunctions against, great conflict of authority 353 tax not enjoined tiecause of mere illegality, exceptions to rule 854 not enjoined because of unconstitutionality 354 levied by oificers improperly ejected 854 not enjoined because of irregularities or errors in assessment 355 not enjoined because of non-compliance with statute . . . 356 exception to rule wbere property is exempt from taxation . 857 transfer of taxing power of state 858 omission to tax railway property 358 enjoined on ground of fraud 359 increase of without notice, ground for enjoining 360 mistake in judgment of oflBcer assessing 361 not enjoined except upon showing of irreparable injury . . 362 valid portion of, must be paid before invalid will be enjoined 363 acquiescence in proceedings a bar to an injunction .... 364 proceedings of oificers in assessment of, not reviewed in equity 365,371 distinction as to tax upon personal and real property . . . 366 enjoined for prevention of cloud upon title ....... 367, 368 illegality of, must exist dehors the record 368 general rule relaxed in cases of municipal taxes .... 369 in aid of subscription to railway, when enjoined . , .369,883 municipal, disregard of statute in levying 37O distinction as to sale of realty and personalty in satisfaction of 370 not enjoined where legal remedy exists 371 not enjoined because ordinance violates city charter . . . 372 extension of municipal limits, illegal exemption from tax- ation 372 to abate nuisance created by city 373 for celebration of Fourth of July, enjoined 373 illegal, enjoined to prevent multiplicity of suits 374 for paving streets, violation of charter in not advertising for l3ids • 375 for payment of bounties to soldiers, general rule 376 statute authorizing bounty tax must be strictly complied with 377 parties to bill for enjoining bounty tax, dissolution . . .378 bounty tax for destruction of wolves . 378 under revenue laws of United States 379 upon stock of national banks 380 proceedings preliminary to, not enjoined 38i not enjoined by private tax payer on behalf of public ... 381 not enjoined to set off previous illegal assessments .... 381 not enjoined where defect has been cured by act of legislature 381 upon franchises 333 593 ; injunction against, not reversed because of deficiency in bond 882 entire tax not enjoined on ground tL at assessment is too great 383 634 INDEX. SBOnoH. 385 386 593 756 TAXES —Cmitinued. not enjoined because of depreciation of property in value . 384 sale of personal property in satisfaction of, when enjoined tax collector, execution against not enjoined .... against banli, distraint for .... in aid of railway, state not a proper party to enjoin . . . for payment of fraudulent judgment against a school district 75Y injunction against, dissolved on tax being legalized . . . 938 TENANT. {See Landlord aud Tenant.) TENANTS IN COMMON, injunction as between 343 waste committed by . . '. 437, 443 of mine, entitled to account for waste committed .... 453 of mill privileges, injunction as between 515 TENANTS FOR LIFE, injunction as between tenant for life and remainder-man . 256, 456 waste by 432,488,489 THBEATS, sufBcient ground for relief 21 of bodily harm, no ground for enjoining judgment .... 102 by mortgagor, no ground for enjoining foreclosure .... 313 of waste, ground for enjoining 435 of trespass, ground for enjoining . . 462 TIMBER, {See Waste, Trespass.) fruit trees and shrubbery, removal of by vendor 342 railway company enjoined from planting 416 general rule as to waste in destruction of 426 preliminary steps toward cutting, ground for relief .... 437 trees must have peculiar value 43S removal of timber already cut, not enjoined 42b past waste not enjoined 429 title and possession in defendants 439 cutting of, not enjoined after failure at law 480 cutting of, for repairs 430 cutting of, by tenant for ninety-nine years 430 injunction dissolved for want of title 430 irreparable injury must be shown 481 pine lands and fruit trees 431 ornamental, cutting of enjoined 433 ornamental, what constitutes 484 cutting of young trees and underwood 435 malicious destruction of trees by tenants in common . . . 437 cutting of, by devisee for life 440 cutting of growing timber not necessary for farming . . . 443 cutting of, by tenants in common 443 cutting of, by mortgagor , . 447 iNPEX. 636 Sbotion. TIMBEK— Continued. general rule as to trespass in destruction of 463 cutting of, not enjoined on vague allegations 463 destruction of all timber on premises will be enjoined . . 464 destruction of forest trees enjoined 464 disposition of timber already cut 465 destruction of fruit trees and ornamental shrubbery . . . 467 TITLE, {See. Beal Property, JtroaMBNTS, Sales, Cloud tjpon Title.) •want of, a bar to injunction 9 assertion of, not enjoined unless case is free from doubt . . 68 failure of, when ground for enjoining judgment 149 questions concerning, properly triable at law 153, 339 superior, ground for enjoining levy 185 equity will not interfere with in the absence of fraud, acci- dent, or mistake 248 want of, not usually ground for enjoining judicial sales . . 266 want of, as affected by fraud 267 legal and equitable, distinction as to 268 cloud upon 147, 148, 369-377 cloud upon, genial rule as to prevention of 369 failure of, injunctions to restrain collection of purchase money, unsettled state of the authorities 378, 379 failure of, general rule where purchaser is in possession under covenants of warranty 280, 281 failure of, where purchaser is not in possession 282 outstanding incumbrances, no ground for enjoining judgment 383 questioned by action of ejectment, collection of purchase money enjoined 384 mere claim of paramount, no ground for injunction . . . 384 no conveyance of, collection of purchase money enjoined . 385 entry by vendee under title bond 386 failure of in sales of hazard, injunction refused 287 failure of, as affected by special agreement 288 failure of, where vendee relies on vendor's representations . 289 conflict of authority as to injunctions on failure of ... . 290 cases where the relief has been allowed 291 injunction allowed where vendor has stripped himself of title 293 failure of, where vendor is insolvent 393 defect in, judgment for purchase money enjoined where vendee is prevented from defending at law 394 failure of, conflict of authority in case of judicial sales . . 395 failure of, where vendor's only title is a bond to convey . . 297 outstanding title, failure of vendor to procure 298 failure of, injunction allowed where remedy at law is inope- rative 399 burden of establishing, on vendor 300 636 INDEX. SEcnoH. TITLE — Oontinued. injunction rarely perpetuated after defect is cured .... 301 purchaser with knowledge of defect, not entitled to an injunc- tion 303 failure of, conflict of authority where purchaser does not offer to restore possession 303 where purchase money is not required until settlement of, injunction refused 304 diflSculty in obtaining, no ground for injunction 305 failure of, damages on dissolution of injunction against collection of purchase money 308 purchaser may he compelled to accept 340 delay of vendor in giving 349 taxes enjoined for prevention of cloud upon . . . .367,368 evidence of, where injunction is sought against waste . . . 421 rule as to establishing in cases of waste 422 questions concerning, in enjoining waste 424, 429, 480 questions concerning, in enjoining trespass .... 458, 460, 463 trespass to mines, considerations as to title 469-471 In cases of copyright 671 dissolution of injunctions affecting . . _ 922-926 injunctions against judgment for purchase money, dissolu- tion of 924 where defect is cured, damages not allowed on dissolving injunction 980 TOLLS. [See Franchises.) TOET, judgment in, not enjoined where defense might have been made at law 104 tra.de MABKS, definition of 672 name of town 673 deceptive mark not protected 674 symbol protected, however unmeaning 675 limitation upon the right 675 colorable differences, test to be applied 675, 691 effect of doubt as to the right 676, 685 general rule as to enjoining piracy 677 prevention of fraud the basis of the relief 678 intent immaterial in determining piracy 679 brands, wrappers and labels 680 omnibuses and hotels 680 diligence required in assertion of right 681 parties, aliens 682, 683, 687 trade mark in literary publications 684, 691 publication of a song 685 IKDEX. 637 Section. TRADE M.ASKB — Continued. partnership name 686 corporate name 687 natural products protected 688 distinction as to false representations 689 certificate of registry not final 690 pactage or barrel does not constitute trade mark by reason of form or shape 690 entire mark need not be pirated 691 use of firm name by employee 693 promise to discontinue piracy no bar to injunction .... 693 slander of reputation no ground for relief 693 account , 694 acquiescence in use of, what degree mil justify breach .• . 868 TRANSFER, of debtor's property, when enjoined 35 of stocks, when enjoined 779 TREES. (See Timbbb, Waste, Trespass.) TRESPASS, distinction between trespass and waste 430 origin of the jurisdiction in restraint of 458 not usually enjoined where title is denied or in doubt . . . 458 not enjoined where there is a remedy at law 459, 483 exceptions to the rule 459 enjoined to prevent multiplicity of suits 459, 473 conditions of relief against 460 distinction as to articles of necessity and luxury 462 threats of tearing down and removing building ..... 463 cutting and removal of timber 468 pine timber, turjiseutine trees 463 destruction of all the timber on premises enjoined .... 464 destruction of forest trees 464 disposition of timber already cut 465 effect of long and undisturbed possession in enjoining . . 466 destruction of fruit trees and ornamental shrubbery . . 467 jurisdiction in restraint of, not dependent upon value of property destroyed 467 to mines, general rule 468 to mines, title and possession 469-471 flowing of refuse matter in mines 471 digging of coal and lead ore 472 removal of asphaltum 474 landing of passengers at dock 474 insolvency of trespasser 475 fences, ditches, mud and earth 476 erection of buildings, distinction as to finished and unfinished 477 638 INDEX. Sbotiox. TRESPASS — Continued. mandatory injunctions against 478 pulling down buildings 479 removal of stone from quarry 479, 483 foreign corporation enjoined from committing in harbor . . 480 in a common, when enjoined 481 by forcible entry and detainer, not enjoined 482 erection of trestle work of railway in a street 483 as between trustees of church 484 injunction against, when perpetuated 484 distinction between trespass and nuisance 485 by qiMsi public corporation 764 TRUST DEED, rule as to enjoining sale under 310 sale under, not enjoined because time is unpropitious . . . 317 sale under, not enjoined because of suit on notes 341 sale under, damages for enjoining 971 TRUSTS— TRUSTEES, {See Ecclbsiasticai Matters.) great care requisite in enjoining trustees 14 writ not awarded in first instance against trustee on general allegations of abuse of trust 14 abuse of, in election of bank directors, no ground, for relief . 14 fact that subject matter of suit is a trust, no ground for enjoining action at law 77 property conveyed in trust, sale enjoined . 153 purchaser at trust sale, injunction refused 198 affecting realty, injunctions for the protection of ... . 254, 255 property conveyed in trust by debtor 346 waste in cases of trust estates 437 jurisdiction in restraint of corporations founded in trust . . 761 injunction for abuse of trust, dissolution 8f 928 u. UNITED STATES, injunctions in courts of, granted only upon notice .... 6 objection that remedy is at law in coui'ts of 81 courts of, will not enjoin proceedings in state courts and mce versa 61 rights of under revenue laws, not interfered with by injunc- tion 76 rule as to injunctions between courts of and state courts . . 158 judgments for and against 179 jurisdiction of courts of, to grant injunctions in aid of pro- ceedings in bankruptcy 208-226 courts of, will not withdraw cases from state courts .... 212 INDEX. 639 Sbotioh. UNITED STATES— C(Wi«»™«i. taxes under revenue laws of 379 digging lead ore on public lands of 473 right of to injunction for protection of navigable streams 511, 535 courts of, will restrain destruction of franchise created by . 593 courts of, exclusive jurisdiction to restrain infringement of patents 603 exclusive jurisdiction to restrain infringements of copyright 641 judgment in courts of, parties to injunction bill 753 President of, not enjoined from enforcing law of congress . 805 agents of, liability in works of public improvement .... 806 procedure in courts of, for violation of injunction .... 870 removal to courts of, from state courts 933 damages in courts of, not dependent upon state practice . . 977 USTJET, injunction on account of, when granted 69 judgment not usually enjoined because of 103,133 exception to rule 133 usurious contracts 703-705 V. VESSELS, sale of, under execution 179 belonging to bankrupt, sale enjoined . 217 VEXATIOUS LITIGATION, prevention of, a favorite ground of injunction 13 writ not granted where it would encourage 33 prevention of, by bill of peace 53 VIOLATIOlir, of injunctions in patent causes 640 general considerations pertaining to ....... 847, 848 not permitted because injunction is improperly awarded . . 847 reason for the rule 848 violation a contempt of court, regardless of motive .... 849 punishment for, irregularities of injunction may be consid- ered in fixing 849, 873 defendant's guilt must be clearly proven 850 advice of counsel no protection 851 but may be considered in fixing punishment •. 851 writ operative from date of the order 853 of injunction against waste 853 defendant liable for, though not officially apprised of writ . 853 any notice of existence of injunction sufficient to fix liability for violation 854 640 INDEX. Section. VIOLATION — Gontinued. violation may depend upon complainant's compliance with terms 855 test in determining 856 regard must be had to the terms of the ■writ 857 of injunctions against actions at law 858 liability of agents for 859, 862 by proceedings at law 860 need not be committed in person 861 liability of members of corporation for 863 defective service no excuse for 864 of injunction against disturbance of right of way .... 865 of the spirit of the injunction 866 remedy for, attachment for contempt 867 general considerations as to punishment for 867, 868 effect of laches in fixing punishment for 869 punishment for, in United States courts 870 proof in proceedings for attachment for 871 bringing suit in United States courts after injunction in state courts constitutes a 873 proceedings for, after dissolution 873 attachment for, against plaintiff in execution 874 of injunction for protection of franchise 874 defendant in contempt for, not allowed hearing on dissolution 875 attachment for, not allowed in case of doubt 875 admission of affidavits 876 order adjudging defendant guilty of, not reviewed on error . 877 no objection that proceedings are against but one defendant 877 "W. WASTE, mortgagor in possession after foreclosure enjoined from com- mitting 40 by one in possession under tax deeds 274 mortgagor restrained from committing 313 314 foundation for the jurisdiction as against mortgagor in pos- session 314 history of jurisdiction in restraint of 419 distinction between waste and trespass 420 general rule as to enjoining 43I rule as to establishing title 42a Insolvent defendants in possession enjoined from committing 423 adverse possession as ground for enjoining 424 extent and degree of 425 general rule as to destruction of timber 426 INDEX. 641 SscrnoN. WASTE — Oontimed. preliminary steps toward cutting timber a ground for injimction 437 trees must have peculiar value 438 removal of timber already cut, not enjoined 438 past waste not enjoined 439, 453 not enjoined where defendants claim both title and possession 429 not enjoined after failure at law 430 timber for repairs 430 tenant for ninety-nine years enjoined 430 injunction against, dissolved for want of title 480 strong case of irreparable injury required 431 cutting of pine timber 431 cutting of fruit trees 431 equitable waste defined 433 cutting of ornamental timber 433 distinctions as to ornamental timber 434 cutting of young trees and underwood 485 injunction not granted where object of action is to obtain legal relief 436 trust and contingent iestates 437 between tenants in common 487 parties 438-447 general rule as to parties 438 tenant for life and remainder-man 438, 439 lessor and lessee 443 joint tenants, tenants in common and copartners 443 enjoined for protection of merely equitable rights .... 444 waste by mortgagor 444-447 parties acting in good faith for public benefit not enjoined . 448 dissolution of injunction against 449 quarrying, when enjoined 450 account for waste committed 451, 453 may be enjoined, though no action is pending at law . . . 453 attaching creditor may enjoin 453 waste where sale of lands is stayed by military order . . . 454 purchaser enjoined from committing 455 tenant enjoined from removing valuable mineral deposits . 455 in mines 456,457 injunction against, when considered as an injunction against trespass 474 injunction against, when violated . . . . , 853 admissibility of aflldavits in support of bill ....... 1005 WATER, nuisances to, foundation of the jurisdiction 501, 503 nuisances to, considerations governing in the exercise of the jurisdiction 503,504 ^1 642 IBDEZ. Section. y7ATEB,—Oontimed. nuisances to, relief barred by laches . . . • 50^ owner protected in quality as well as quantity 506 past nuisances no ground for injunction 506 adverse possession and user 507, 508 surface water and subterranean streams 509 construction of levee 510 nuisances to, as belTveen United States and states .... 511 mandatory injunction to restore 513 • filling up of stream 513 mill dams 513-518 waste of water supplying mill 517 injunction against diversion of, when dissolved 518 flow of through city, obstruction to 534 obstruction of navigable streams 526, 535 easements in, protected in equity 556 easement i:;, acquired by prescription ......... 557 easement in, right must be clear 558 easement in, acquiescence in violation of 559, 560 canals 561 right to use of, by purchaser of mill dam 563 drawing ofiF, right to enjoin as between mill owners .... 564 WITlsTESS, absence of, no ground for enjoining judgment 100 W^RIT OP ERROR, not enjoined because of mistakes in bill of exceptions . . 46 to judgment at law, no bar to injunction 96 WRIT OF INJUNCTION, (See Definition, Intbblocutoey, Maotjatokt and Peepbtuai Injunctions.) service of, beyond state 20 what should contain 39 may be revived, when 41 service of, not necessary to bind defendant 853, 854 defect in service of, no excuse for violation 864 WRIT OF POSSESSION, when enjoined 152^ 359 WPYE OF RESTITUTION, Injunction against, refused jgg^ 261, 339 II I : iiiJiMH')!i^(!«Wwd^*iW(H»Ai«ii>iiii':'')' W:SSm&Si^