prayed by the bill.3 Thus, in a foreclosure suit, it would restrain waste by the mortgagor after a decree for an account; and after a decree for the administration of the assets of a dead man, it would enjoin a creditor not a party to the suit from proceeding at law against the testator's or intestate's estate to satisfy his individual claim, provided that the executor made an affidavit stating what assets he had in his hands, or had previously admitted their amount.5 If the suit were brought by a legatee, such a statement or admission was not indispensable. Secondly, an injunction was granted without a bill being filed, for the express purpose of preventing a plaintiff from suing both at law and in equity at the same time and for the same matter, and to compel him to make an election. Thirdly, an injunction could always be obtained to compel respect and enforce obedience to the decrees and orders of the court. Thus, publications which were disrespectful to the court, or which unfairly reported its proceedings, could be enjoined. So, too, an injunction could issue to restrain an action at law to recover damages for false imprisonment under process of contempt improperly issued; to compel compliance with the terms and spirit of a decree by one who had bought land under it; 10 to compel compliance with his lease by the tenant of a receiver; 11 and to prevent an unauthorized action against a receiver.12 And fourthly, there seems to be a class of cases not clearly defined in which the court granted an injunction, when without it "the whole object of the proceedings would be defeated," although it was not prayed for in the bill.13

§ 230. Special Practice of the Federal Courts in the Issue of Injunctions. The following regulations control the practice in issuing injunctions in the Federal courts. The prayer of the bill shall ask the special relief to which the plaintiff supposes

8 Daniell's Ch. Pr. (5th Am. ed.) 1614. Wright v. Atkyns, 1 V. & B. 313. 5 Daniell's Ch. Pr. (5th Am. ed.) 1617; Paxton v. Douglas, 8 Ves. 520; Thompson v. Brown, 4 J. Ch. (N. Y.) 619.

6 Ratcliffe v. Winch, 16 Beav. 576; Daniell's Ch. Pr. (5th Am. ed.) 1617. 7 Rogers v. Vosburgh, 4 J. Ch. (N. Y.)

84.

8 Anon., 2 Ves. Sen. 520; Brook v. Evans, 29 L. J. Ch. 616; Coleman v. West Hartlepool Ry. Co., 8 W. R. 734; Mack

66

ett v. Commissioners of Herne Bay, 24 W. R. 845. But see U. S. R. S. § 725.

9 Frowd v. Lawrence, 1 J. & W. 655; Ex parte Clarke, 1 R. & M. 563; Daniell's Ch. Pr. 511.

10 Casamajor v. Strode, 1 Sim. & Stu. 381; Kerr on Injunctions, 543.

11 Walton v. Johnson, 15 Simons, 352. 12 Angel v. Smith, 9 Ves. 335.

18 Blomfield v. Eyre, 8 Beav. 250. See Shainwald v. Lewis, 6 Fed. R. 766.

himself entitled, and also shall contain a prayer for general relief; and if an injunction, or a writ of ne exeat regno, or any other special order, pending the suit, is required, it shall also be specially asked for."1 "Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant do not enter his appearance, and plead, demur, or answer to the same. within the time prescribed therefor by these rules, the plaintiff shall be entitled as of course, upon motion, without notice to such injunction. But special injunctions shall be grantable only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex parte if the adverse party does not appear at the time and place ordered. In every case where an injunction - either the common injunction or a special injunction — is awarded in vacation, it shall, unless previously dissolved by the judge granting the same, continue until the next term of the court, or until it is dissolved by some other order of the court." 3 "Whenever notice is given of a motion for an injunction out of a circuit or district court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge." 4 "Writs of injunction may be granted by any justice of the Supreme Court in cases where they might be granted by the Supreme Court, and by any judge of a circuit court in cases where they might be granted by such court. But no justice of the Supreme Court shall hear or allow any application for an injunction or restraining order in any cause pending in the circuit to which he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the circuit judge of the circuit or the district judge of the district. And an injunction shall not be issued by a district judge, as one of the judges of a circuit court," except when holding such court,5 "in any case where a party has had a reasonable time to apply to the circuit court for

§ 230. 1 Rule 21. But see Shainwald

v. Lewis, 6 Fed. R. 766.

2 Perry v. Parker, 1 W. & M. 280. 8 Rule 55.

4 U. S. R. S. § 718. See Yuengling v. Johnson, 1 Hughes, 607; C. B. & Q. Ry. Co. v. B. C. R. & N. Ry. Co., 34 Fed. R. 481. 5 Goodyear Dental Vulcanite Co. v Folsom, 3 Fed. R. 509.

the writ; nor shall any injunction so issued by a district judge continue longer than to the circuit court next ensuing, unless so ordered by the circuit court."6 It has been held under the foregoing statutory provision that absence or illness of the circuit and district judges is such a disability as authorizes the circuit justice to hear and grant the application at a place outside of the circuit; and that, if the circuit justice as well as the circuit and district judges be absent from the circuit, the application may be heard and the writ granted by any justice of the Supreme Court in any part of the United States. A denial by the Circuit Court of an application to dissolve an injunction granted by a district judge may be treated as an order for its continuance.9 But if no order continuing it is made, such an injunction is dissolved without an order.10

In the Circuit Court for the Southern District of New York the rules provide as follows:

"No motion for an injunction (except to stay waste) shall be heard unless a copy of the bill and of the depositions to be offered in its support shall be served on the adverse party, or his attorney, at least four days before motion made." 11 "The defendant may show cause against the allowance of an injunction, either by plea, answer, or demurrer to the bill, or by parol exception to its legal sufficiency, or by deposition, disproving the equity on which the motion is founded." 12 "Suppletory, or supporting, proofs may, at the discretion of the court, or judge, be offered by the complainant to rebut the cause shown by the defendant; but the reception of such additional proofs is not to permit the introduction of further proofs in opposition thereto by the defendant, previous to the final hearing upon the merits." 13 "Hereafter, on motions for an injunction, because of the infringement of a patent right, the complainant shall not be permitted to give evidence to rebut the cause shown by the defendant against the allowance thereof, other than to a denial that the defendant uses

6 U. S. R. S. § 719. See Dudley's 12 Wheat. 561. See Gray v. Chicago, I. Case, 1 Penn. L. J. 302. & N. R. R. Co., 1 Woolw. 63.

Searles v. Jacksonville, P. & M. R.

R. Co., 2 Woods, 621.

10 Parker v. The Judges of Circuit Court, 12 Wheat. 561; Gray v. Chicago,

8 United States v. Louisville & P. J. & N. R. R. Co., 1 Woolw. 63. Canal Co., 4 Dill. 600.

9 Parker v. Judges of Circuit Court,

11 U. S. C. C., S. D. N. Y. Rule 105. 12 U. S. C. C., S. D. N. Y. Rule 106. 18 U. S. C. C., S. D. N. Y. Rule 107.

the discovery or invention claimed by the complainant, or to a claim by the defendant that he acts under an assignment or license from the patentee, and on motions for injunctions to stay waste, only to a defence set up justifying the waste; and in neither case shall such suppletory or supporting proofs be received, unless the court, or one of the judges, on satisfactory cause shown, shall, by order previously made, allow the same to be given. And so much of rule 107 of the standing Rules in Equity of this court adopted April 28, 1838, as may be inconsistent herewith, is repealed. Motions for injunctions shall be brought on by the complainant on the day named in the notice, if the court is then in session; and in default thereof, the defendant may move that the notice be discharged for the term, with costs, unless further time is given, or the hearing is delayed by order of the court." 14

§ 231. Notice of Application for Interlocutory Injunction. As a general rule, notice of an application for an injunction must always be given to the person against whom the injunction is desired; but in very pressing cases, where the mischief sought to be prevented was serious, imminent, and irremediable, or where the mere act of giving notice to the defendant of the intention to make the application might have been of itself productive of the mischief apprehended, by inducing him to accelerate the act in order that it might be complete before the time for making the application should have arrived, the courts have always awarded injunctions without notice.1 On an application for an injunction without notice, the plaintiff should state in his affidavit the time when he first learned of the threatened mischief, if the injunction desired be to restrain the infringement of a patent that he believes that the person to whom the patent was issued was the original inventor thereof, or that the thing or process patented was new or had not been introduced into public use in the United States for more than two years prior to the application upon which the patent was issued, and every material circumstance

14 U. S. C. C., S. D. N. Y. Rule of May 18, 1846.

§ 231. Daniell's Ch. Pr. (5th Am. ed.) 1664; Kerr on Injunctions, 545; Wing v. Fairhaven, 8 Cushing (Mass.), 363; Schermerhorn v. L'Espenasse, 2 Dall. 360; Yuengling v. Johnson, 1 Hughes, 607.

2 Calvert v. Gray, 2 Cooper's Ch. R. 171 n.

8 Hill v. Thompson, 3 Meriv. 622; Sturz v. De la Rue, 5 Russ. 322, 329; Sullivan v. Redfield, 1 Paine, 441. See also U. S. R. S. §§ 4886, 4887.

connected with the case, whether the same bears for or against his application. If his affidavit be defective in any of these particulars, according to the English practice, an injunction would not be issued, or if issued the order for it would be discharged.5 "The application for a special injunction is very much governed upon the same principles which govern insurances, matters which are said to require the utmost degree of good faith, uberrima fides.' In cases of insurance a party is required not only to state all matters within his knowledge, which he believes to be material to the question of the insurance, but all which in point of fact are so. If he conceals anything that he knows to be material, it is a fraud; but besides that, if he conceals anything that may influence the rate of premium which the underwriter may require, although he does not know that it would have that effect, such concealment entirely vitiates the policy. So here, if the party applying for a special injunction abstains from stating facts which the court thinks are most material to enable it to form its judgment, he disentitles himself to that relief which he asks the court to grant." In the absence of any local rule upon the subject, the practice in giving notice of an application for an injunction, and of proceeding at the time when the application is made, are the same when an injunction is asked for as upon any other interlocutory application. It has been said that an application for an interlocutory special injunction, during term and after the beginning of a suit and before answer, can only be made by motion; but that in vacation a judge may grant such an application upon petition. The usual practice is, however, to apply by motion. It has been held that a mandatory injunction can only be granted upon notice. It has been further held that the evidence which would prevent the issue of an interlocutory injunction will be sufficient to induce the court to dissolve one previously granted.9

§ 232. Affidavits upon an Application for an Injunction. The affidavits upon which an injunction is sought are usually sworn

4 Dalglish v. Jarvie, 2 Macnaghten & Gordon, 231.

7 Daniell's Ch. Pr. (5th Am. ed.) 1666; Smith v. Clarke, 2 Dick. 455; Nichols v.

5 Dalglish v. Jarvie, 2 Macnaghten & Kearsly, 2 Dick. 645. Gordon, 231.

6 The Lord Commissioner, Mr. Baron Rolfe, in Dalglish v. Jarvie, 2 Mac. & G. 231, 243, 244.

8 Chicago, B. & Q. R. Co. v. Burlington, C. R. & N. R. Co., 34 Fed. R. 481.

9 Cary v. Domestic Springbed Co., 26 Fed. R. 38.