authorize the issue of an injunction.19 It has been held that an injunction will not be granted to restrain the Commissioner of Patents from issuing letters-patent.20 An injunction cannot be issued against a State at the suit of a citizen of another State or of a foreign State.21 Nor can a mandatory injunction be issued against an officer of a State so as to compel the action of the State against its expressed will.22 But an officer of a State may be enjoined from an invasion of private rights which would cause irreparable injury, when about to act under an unconstitutional act of the legislature of the State.23 As has been said before, an injunction will not ordinarily be granted to stay proceedings in a State court.24 In England, a person may be restrained from petitioning or applying to the legislature in order to procure the passage of an act relating solely to private interests, provided he be under an express or implied agreement not to do so, or his doing so would amount to a breach of trust.25 This doctrine has, however, never been upheld in the United States, and in a wellconsidered case in New Jersey was expressly repudiated. The early English cases held that an injunction would not issue to restrain the publication of a slander or libel, no matter how injurious it might be to the complainant.27 Since the passage of the Judicature Act, however, such injunctions have been granted there in order to protect rights of property.28 An injunction was denied when sought to prevent a defendant from advertising that a patent was void, and it appeared that he honestly believed it to be so, and published the statement for the sole purpose of protecting what he believed to be his rights.29 Whether a Federal 26 19 Robbins v. Freeland, 14 Int. Rev. Works Co., 2 Russ. & M. 470; The StockRec. 28.. 20 Illingworth v. Atha, 42 Fed. R. 141. 21 Eleventh Amendment of the Constitution. 22 Louisiana v. Jumel, 107 U. S. 711; Antoni v. Greenhow, 107 U. S. 769, 782784; Cunningham v. Macon & Brunswick R. R. Co., 109 U. S. 446. 28 Osborn v. Bank of the United States, 9 Wheat. 738; Davis v. Gray, 16 Wall. 203; Board of Liquidation v. McComb, 92 U. S. 531; Virginia Coupon Cases, 114 U. S. 269. See, however, In re Ayers, 123 U. S. 443. 24 U. S. R. § 720; supra, § 211. 25 Ware v. The Grand Junction Water ton & H. Ry. Co. v. The Leeds & Th. Ry. Co., 2 Phil. 666; Heathcote v. North Staffordshire Ry. Co., 2 Mac. & G. 100. 26 Story v. The Jersey City & Bergen Point Plank Road Co., 1 C. E. Green (16 N. J. Eq.) 13. 27 Prudential Assur. Co. v. Knott, L.R. 10 Ch. 142; Clark v. Freeman, 11 Beav. 112. See also Brandreth v. Lance, 8 Paige (N. Y.) 24. 28 Thorley's Cattle Food Co. v. Massam, L. R. 6 Ch. D. 582; Saxby v. Easterbrook, L. R. 3 C. P. D. 339; Wren v. Weild, L. R. 4 Q. B. 730. 29 Halsey v. Brotherhood, 45 L. T. N. 8. 640; Celluloid Manuf. Co. v. Goodyear court will in any case grant an injunction against the publication of a libel is a disputed question.30 It has been held that an injunction may be granted against the publication and circulation of posters and handbills in aid of a boycott.31 An injunction will not issue to assist in the maintenance of a monopoly injurious to public policy; 32 nor in any other case when its operation would be repugnant to public policy. An injunction will not be issued when the moving party has a plain, adequate, and complete remedy at law.34 § 224. Distinction between the Judicial Writ and the Writ Remedial. Injunctions were formerly either judicial writs or writs remedial. A judicial writ was a direction to yield up, to quiet, or to continue the possession of lands, and is said to be in the nature of a writ of execution. It was issued in aid of, and only after a final decree in equity; and, in extraordinary circumstances, in aid of a judgment at law. Under the equity rules, however, it is never necessary; and it had previously fallen into disuse in England. All other injunctions are writs remedial. §225. Distinction between Mandatory and Prohibitory Injunctions. Injunctions are either mandatory or prohibitory. Α mandatory injunction is one that commands a defendant to perform a certain act or acts; a prohibitory injunction, one that forbids a defendant's doing a certain act or acts. Mandatory are far less common than are prohibitory injunctions. Those most frequently issued have been such as commanded a defendant to Dental Vulcanite Co., 13 Blatchf. 375; 80 Held that it can, in Ide v. Ball Engine Co., 31 Fed. R. 901, U. S. C. C., S. D. Illinois, by Allen J.; Emack v. Kane, 34 Fed. R. 46, U. S. C. C., N. D. Illinois, by Blodgett, J. Cf. Palmer v. Travers, 20 Fed. R. 501, U. S. C. C., S. D. N. Y., by Wheeler, J.; Celluloid Manuf. Co. v. Goodyear D. V. Co., 13 Blatchf. 375. U. S. C. C., S. D. N. Y., by Hunt, J. Held that it cannot, in Kidd v. Horry, 28 Fed. R. 773, U. S. C. C., E D. Pa., by Bradley and McKennan, JJ.; Baltimore CarWheel Co. v. Bemis, 29 Fed. R. 95, U. S. C. C., D. Mass., by Colt and Carpenter, JJ.; Fougeres v. Murbarger, 44 Fed. R. 292, U. S. C. C., D. Indiana, by Woods, J.; International Tooth-Crown Co. v. Carmichael, 44 Fed. R. 350, 351, U. S. C. C., E. D. Wis., by Jenkins J. See Francis v. Flinn, 118 U. S. 385; Kelley v. Ypsilanti, D. S. M. Co., 44 Fed. R. 19, 23. 31 Casey v. Cincinnati Typographical Union No. 3, 45 Fed. R. 135. 82 Pullman Palace Car Co. v. Texas & Pacific Ry. Co., 11 Fed. R. 625; s. c. 4 Woods, 317; Foll's Appeal, 91 Pa. St. 434, 438. 33 Bryant v. W. U. Tel. Co., 17 Fed R. 825; Blake v. Greenwood Cemetery, 14 Blatchf. 342; Denehey v. Harrisburg, 2 Pearson (Pa.), 330, 334. abate a nuisance,1 or to deliver the possession of land. They have also been granted to compel the return of letters and other documents, the delivery of personal property whose loss could not be compensated in damages, the giving of collateral security in obedience to a contract,5 the making of a policy of insurance, the stopping and receiving freight by a railroad company at a particular place, and the performance of a contract by one railroad company to send freight over the lines of another railroad.8 The court, in a case involving the constitutionality of certain Kentucky statutes, refused a mandatory injunction compelling a distribution of the money raised by a tax upon white people partly among public schools for colored children, in the absence of any contract right or legislative authority for such a distribution; but it granted "a decree enjoining and restraining the proper parties from applying to the use of the schools organized for and at which white children only are allowed to attend, onefourth of the money heretofore, or which may be hereafter, collected under the authority of the act of 1871 and its amendments." Mandatory injunctions are usually issued in a negative form, restraining a defendant from desisting or refusing to do an act.10 They are very rarely granted upon an interlocutory motion.11 § 225. Lane v. Newdigate, 10 Ves. 192; Robinson v. Lord Byron, 1 Bro. C.C. 588; Hervey v. Smith, 1 K. & J. 389; Rankin v. Huskisson, 4 Simons, 13; Bickett v. Morris, L. R. 1 H. L. Sc. 47; Cole Silver Mining Co. v. Virginia & G. H. Water Co., 1 Saw. 470. 2 Hepburn v Auld, 5 Cranch, 262; Hepburn v. Dunlop, 1 Wheat. 179; Findlay v. Hinde, 1 Pet. 241. 3 Evitt v. Price, 1 Simons, 483; Seton on Decrees (4th ed.), 179. See also Clarke v. White, 12 Pet. 178. 4 Pusey v. Pusey, 1 Vern. 273; Duke of Somerset v. Cookson, 3 P. Wms. 389; Greatrex v. Greatrex, 1 De G. & Sm. 692; McGowin v. Remington, 12 Pa. St. 56. 5 Robinson v. Cathcart, 2 Cranch C. C. 590. 6 Union Mutual Ins. Co. v. Commercial Mut. Marine Ins. Co., 2 Curt. 524. 7 Coe v. Louisville & Nashville R. R. Co., 3 Fed. R. 775; McCoy v. Cincinnati, I., St. L. & C. R. Co., 13 Fed. R. 3. 8 Chicago & A. Ry. Co. v. N. Y., L. E. & W. R. Co., 34 Fed. R. 516. 9 Barr, J. in Claybrook v. City of Owensboro, 23 Fed. R. 634, 636. 10 Southern Express Co. v. St. Louis, Iron M., & Southern Ry. Co., 10 Fed. R. 210, 869; Smith v. Smith, L. R. 20 Eq 500, 504; Cole Silver Mining Co. v. Virginia & G. H. Water Co., 1 Saw. 470. 11 Denver & N. O. R. Co. v. Atchison, T. & S. F. R. Co., 13 Fed. R. 546; McCauley v. Kellogg, 2 Woods, 13; Camblos v. The Philadelphia & R. R. R. Co., 9 Phila. (Pa.) 411; s. c. 4 Brewster (Pa.), 563; Rogers Locomotive Works v. Erie Ry. Co., 5 C. E. Green (20 N. J. Eq.), 379. But see Dinsmore v. Louisville, C. & L. Ry. Co., 2 Fed. R. 465; Disnmore v. Louisville, N. A. & C. R. R. Co., 3 Fed. R. 593; Coe v. Louisville & Nashville R. R. Co., 3 Fed. R. 775; Ormsby v. Union Pacific R. R. Co., 4 Fed. R. 706; Texas Express Co. v. Texas & Pacific Ry. Co., 6 Fed. R. 426; Chicago & A. § 226. Distinction between Provisional and Perpetual Injunctions. Provisional, also called preliminary or interlocutory, injunctions are such as are to continue until a certain time usually specified therein; for example, until the coming in of the defendant's answer, the hearing of the cause, the master's report, or the further order of the court.1 Perpetual, also called final, injunctions are those which, as their name denotes, perpetually restrain the defendant from the same act or acts. Provisional injunctions may be granted at any time during the progress of a suit. Perpetual injunctions can never be granted except at the time of the entry of the decree.2 The setting up of outstanding terms can, it has been said, only be restrained by a perpetual injunction. Mandatory injunctions also will very rarely be granted before a decree. "It is a rule of practice in the Circuit Courts of the United States not to allow an injunction to stay an ejectment suit until it can be investigated in equity, unless a judgment be entered therein." 5 $227. Distinction between Common and Special Injunctions. Injunctions were formerly of two kinds, common and special. Common injunctions were those which were granted, as of course, upon the defendant's default either in appearing or answering, and were only applicable to restrain proceedings at common law.1 Special injunctions were those which were granted, not as a matter of course, but upon the special circumstances of the case as disclosed by the answer of the defendant or upon affidavits.2 Common injunctions, although recognized by the equity rules,3 have, it has been held, been abolished by the Revised Statutes.4 Ry. Co. v. N. Y., L. E. & W. R. Co., 34 & Machine Works v. Erie Ry. Co., 5 C. E. Green (N. J.) 379. But see Dinsmore v. Louisville, C. & L. Ry. Co., 2 Fed. R. 465; Coe v. Louisville & Nashville R. R. Co., 3 Fed. R. 775, and other cases cited § 226. 1 Daniell's Ch. Pr. (2d Am. ed.) under § 225. 1810; Eden on Injunctions, ch. xv. 2 Daniell's Ch. Pr. (2d Am. ed.) 1903; Adams v. Crittenden, 17 Federal Reporter, 42. 3 Hylton v. Morgan, 6 Ves. 293; Byrne v Byrne, 2 Sch. & Lef. 537; Barney v. Luckett, 1 Sim. & S. 419; Northey v. Pearce, 1 Sim. & S. 420. 4 Camblos v. The Philadelphia & R. R. R. Co., 9 Phila. (Pa.) 411; s. c. 4 Brewster (Pa.), 563; Rogers Locomotive 5 Billings, J., in Heirs of Szywauski v. Zunts, 20 Fed. R. 361, 363; citing Turner v. American Bapt. Missionary Union, 5 McLean, 344. § 227.1 Daniell's Ch. Pr. (2d Am. ed.) 1877. 2 Daniell's Ch. Pr. (2d Am. ed.) 1833. 8 Rule 55. 4 Perry v. Parker, 1 W. & M. 280; Lawrence v. Bowman, 1 McAll. 419. The learning upon the subject, which is very technical, seems now, therefore, useless, and will not be repeated here.5 § 228. Time and Place of Applications for Interlocutory Injunctions. An injunction may be obtained, at any time, as well in vacation as in term, and whether the court be sitting or not, at any place within which the judge granting it has jurisdiction, and at almost any stage of the cause. In England it has been held, that, in a very extraordinary case, an injunction may be granted upon petition before the filing of a bill or the service of a subpoena; and in the courts of the United States an injunction has been issued upon the filing of the bill and before service of the subpoena.3 An injunction will not usually be granted while a demurrer or plea to the bill is pending. But in cases of emergency, the court may order the sufficiency of such a pleading to be argued before the regular time for such a proceeding, together with the motion for the injunction; 5 or even grant a stay-order without waiting for the argument. Should a motion be heard while a demurrer is on the file and undisposed of, it seems that upon the hearing of the motion the allegations in the bill will be considered as admitted. An application for an injunction has been refused because the bill had been referred for scandal,8 To § 229. Injunctions not prayed for in the Bill. The English rule was that an injunction would not issue against a person not made a party to a bill specifically praying an injunction against him;1 and the injunction had to be prayed for not only in the prayer for relief, but also in the prayer for process. this, however, there were four exceptional classes of cases. If the court had by its decree taken the distribution or control of property into its own hands, it would prevent injury thereto either by the parties litigant or others, although no injunction had been 5 See Daniell's Ch. Pr. (2d Am. ed.) 1811--1833. § 228. Daniell's Ch. Pr. (5th Am. ed.) 1663; Kerr on Injunctions, 543-545; Bacon v Jones, 4 Myl. & Cr. 433. 2 Mayor of London v. Bolt, 5 Ves. 129. 8 Schermerhorn v. L'Espenasse, 2 Dall. 360. 4 Cousins v. Smith, 13 Ves. 164; Ketchum v. Driggs, 6 McLean, 13; Anon., 2 Atk. 113; Daniell's Ch. Pr. (5th Am. ed.) 1671. 5 Anon v. Bridgewater Canal Co., 9 Simons, 378; Daniell's Ch. Pr. (5th Am. ed.) 1671. 6 Wardle v. Claxton, 9 Simons, 412; Maltby v. Bobo, 14 Blatchf. 53, Fremont v. Merced Mining Co., 1 McAll. 267. 1 Bayerque v. Cohen, McAll. 113. 8 Davenport v. Davenport, 6 Madd. 251. § 229. 1 Daniell's Ch. Pr. (5th Am. ed.) 1614-1617. 2 Wood v. Beadell, 3 Simons, 273. |