And an affidavit showing the fraudulent acts or intention. of the defendant, or other grounds which authorize the commencement of the proceeding, must be made and filed,' and an undertaking, such as the statute requires, must be given before the writ can be properly issued.'

But in some of the states proceedings for the writ of ne exeat is allowed to be instituted as a separate and distinct proceeding before the debt matures, while that of the statutory arrest and bail is made auxiliary to an action for the recovery of the debt as in case of attachment.

The affidavit must be positive in its terms and not on information and belief, and must show personal knowledge of the facts necessary to authorize the issuance of the writ, or state circumstances from which the facts must necessarily be deduced, or the proceeding will be void.

It is held to be sufficient to allege the facts on information and belief under some circumstances of excuse to be alleged in the affidavit. And in some cases it is held, generally, that the affidavit may be on information and belief. The affidavit must show the venue or it will be void and confer no jurisdiction."

If the application is based upon the fraudulent intent

1 Ramsey v. Foy, 10 Ind. 493; Fitzgerald v. Gray, 59 Ind. 254; 1 Am. & Eng. Enc. of Law, 721; Gibert v. Colt, 14 Am. Dec. 562, note; Wilbur v. Allen, 5 N. Y. Supl. 746; Valentine v. Richardt, 6 N. Y. Supl. 197; People v. Snaith, 10 N. Y. Supl. 589; In re Vanamee, 8 N. Y. Supl. 219; In re Vinich, 86 Cal. 70; 26 Pac. Rep. 528; Bonesteel v. Bonesteel, 28 Wis. 245.

2

Ramsey v. Foy, 10 Ind. 493; Fitzgerald v. Gray, 59 Ind. 254.

3 People v. Snaith, 10 N. Y. Supl. 589; In re Vanamee, 8 N. Y. Supl. 219; Thompson v. Best, 4 N. Y. Supl. 229; Martin v. Gross, 4 N. Y. Supl. 337; Markey v. Diamond, 20 N. Y. Supl. 847; In re Vinich, 86 Cal. 70; 26 Pac. Rep. 528; Whitlock v. Roth, 5 How. Pr. 143; McGilvery v. Morehead, 2 Cal. 607.

Marble v. Curran, 63 Mich. 283; 29 N. W. Rep. 725; De Long v. Briggs, 47 Mich. 625; 11 N. W. Rep. 412; Thompson v. Best, 4 N. Y. Supl. 229.

5 City Bank . Lumly, 28 How. Pr. 397; Crandall v. Bryan, 15 How. Pr. 48.

Matoon v. Eder, 6 Cal. 58.

'Saril v. Payne, 4 N. Y. Supl. 897.

to remove property out of the jurisdiction of the court, the property must be shown to be subject to execution.'

In equity the proceeding may be commenced at any stage of the cause, but only on a bill filed. The application may be made by motion or petition, and must be supported by affidavit.3 It is held in some of the cases, however, that the writ may issue upon affidavit before any action is commenced by the filing of a bill or complaint.*

The writ has been held not to be a mere provisional remedy, in the sense that it can only be issued pending the suit, and must expire on the rendition of the judgment, but that its issuance may be provided for in the final decree, and continues until the judgment is satisfied or security given.5

Statutes authorizing the proceeding, being in restraint of liberty, must be strictly complied with. Under the statutes the proceeding is not generally confined to equitable actions, and is extended to debts not yet due."

8

A defective affidavit or petition for the writ may be amended. So of a defective undertaking. Therefore a defect in the petition or affidavit will not affect the jurisdiction of the court or render the proceeding wholly void where there are facts alleged tending to establish a cause for issuing the writ. Such a showing, although insufficient if attacked directly, calls upon the court or judge to decide whether the facts alleged are sufficient or not, and his decision can not be collaterally attacked. But it is

1 Jones v. Kennicott, 83 Ill. 484.

216 Am. & Eng. Enc. of Law, 379; Lewis v. Shainwald, 48 Fed. Rep. 492.

3 16 Am. & Eng. Enc. of Law, 380; Bassett v. Bratton, 86 Ill. 152. Bushnell v. Bushnell, 7 How. Pr. 389; Clark v. Clark, 26 Atl. Rep.

1012.

5 Lewis v. Shainwald, 48 Fed. Rep. 492.

6 Ramsey v. Foy, 10 Ind. 493.

Louderback v. Rosengrant, 4 Ind. 563; Bassett v. Bratton, 86 Ill. 152; Fisher v. Stone, 3 Scam. (Ill.) 68; McBride v. Langan, 10 N. Y. Supl. 554. 8 Fitzgerald v. Gray, 59 Ind. 254.

9 Bassett v. Bratton, 86 Ill. 152; Fisher v. Stone, 3 Scam. (Ill.) 68; Dusy v. Helm, 59 Cal. 188.

held that there can be no amendment of the affidavit where it is void and not merely defective. And this is in conformity to the rule generally applied in cases of attachment and other extraordinary remedies.2

The right to the issuance of the writ depends upon the presence of the defendant within the jurisdiction and not upon his residence or the place where the cause of action arose, nor, necessarily, upon the presence of property within the jurisdiction of the court. Nor is it necessary that the defendant should be actually within the state when the application for the writ is made. But under some of the statutory remedies of this character a defendant can be arrested only in the county of his residence."

A writ of ne exeat will not be allowed under the chancery practice where there is an adequate remedy at law. And it is usually held that statutes authorizing the extraordinary remedy of imprisonment can not be enforced. where the creditor can recover by the ordinary means provided by law.

79. INJUNCTIONS. The remedy of injunction is a purely equitable one, but, like almost all other remedies, legal or equitable, it has become, to a large extent, statutory, in the sense that the power to issue the writ is, in most of the states expressly conferred, and the exercise of the power directly limited, by statute. But, notwithstanding these statutory provisions and regulations, the jurisdiction to issue writs of injunction, by courts of original jurisdiction, remains very much as it was under the old equity

1 Saril v. Payne, 4 N. Y. Supl. 897.

2 Ante, sec. 74, p. 544.

3 Gibert v. Colt, 1 Hopk. Ch. (N. Y.) 496; 14 Am. Dec. 557, 560, note; Powers. Davenport, 101 N. Car. 286; 7 S. E. Rep. 747; Enos v. Hunter, 4 Gil. (Ill.) 212; Parker v. Parker, 12 N. J. Eq. 105; Mitchell v. Bunch, 2 Paige Ch. 606; 22 Am. Dec. 669.

Parker v. Parker, 12 N. J. Eq. 105.

5 Hatch v. Saunders, 66 Mich. 181; 33 N. W. Rep. 178.

• Victor Scale Co. v. Shurtleff, 81 Ill. 313; Rhodes v. Cousins, 6 Rand. 188; 18 Am. Dec. 715.

Baker v. State, 109 Ind. 47; 9 N. E. Rep. 711.

practice. And the combination of common law and equity jurisdiction in the same courts, as is done in most of the states, does not change the rule. It is the remedy that controls and not the court by which it is administered.2

With reference to appellate courts the state constitutions or statutes frequently confer upon such courts jurisdiction to issue and determine writs of habeas corpus, mandamus, injunction, quo warranto, and certiorari. And sometimes general words are used, such as "other original and remedial writs," in order, apparently, to vest in appellate courts jurisdiction over all such writs.3

The effect of such and similar provisions will be considered further on in this section.

The statutes have extended, rather than limited, the jurisdiction of the courts in affording injunctive relief. And the tendency of the courts has been rather to extend their jurisdiction, in applying injunctive relief, where the power is not limited by express law. This is particularly noticeable in the decisions of some of the federal courts growing out of difficulties between employers and employes resulting in "strikes."5

The equity jurisdiction of the federal courts can not be increased by state laws."

It is not the intention to attempt to point out here the particular cases in which injunction will lie, or the particular grounds upon which a court of equity will exercise this power, but to discuss the general principles, only, upon which the jurisdiction of courts

1 Trustees of German, etc., Church v. Hoessli, 13 Wis. 348; Neiser v. Thomas, 99 Mo. 224; 12 S. W. Rep. 725.

2 Bouton v. City of Brooklyn, 7 How. Prac. 198, 205.

3 Attorney-General v. Railroad Companies, 35 Wis. 425.

Merced Mining Co. v. Fremont, 7 Cal. 317; 68 Am. Dec. 262; Murdock v. Walker, 152 Pa. St. 595; 25 Atl. Rep. 492.

5 Coeur d'Alene Con. Mining Co. v. Miners Union, 51 Fed. Rep. 260; In re Higgins, 27 Fed. Rep. 443; Toledo, etc., Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 746; United States v. Workingmen's Council, 54 Fed. Rep. 994.

6 Clapp v. City of Spokane, 53 Fed. Rep. 515.

of equity to issue the writ can be maintained. But there are certain classes of cases which it is deemed best to consider, separately, in this connection, as they involve some principles applicable to themselves alone. These include proceedings for the levy and enforcement of taxes, issuance and sale of municipal bonds, and other acts of public officers, and proceedings in other courts, including the enforcement of their judgments.

The remedy, and the extent to which it may be enforced, is so familiar to the practicing lawyer that a very brief consideration of the subject, in a work on jurisdiction, would seem to be sufficient. The jurisdiction of a court of equity to afford relief by way of injunction rests, in most cases, upon well settled principles and clearly defined. grounds. Of these may be enumerated: The prevention. of irreparable injury, or of a multiplicity of actions, to prevent the infliction of an injury for which the injured party can have no adequate remedy at law,3 or where the obligation, the subject, or foundation, of the action, arises from a trust; or to prevent vexatious litigation.*

These grounds of equitable jurisdiction, as well as the limitations upon such jurisdiction, have been perpetuated in most of the states by express statutory provisions.

'Smith v. Weldon, 73 Ind. 454; Wilson v. City of Mineral Point, 39 Wis. 160; Newall v. Staffordville, etc., Co., 13 Atl. Rep. 270; Thomas v. Musical, etc., Union, 2 N. Y. Supl. 195.

2 Coeur d'Alene Con. Min. Co. v. Miners' Union, 51 Fed. Rep. 260, 265; Lewis v. Rough, 26 Ind. 398; Slack v. Lawrence Tp., 19 Atl. Rep. 663; Shafer v. Stull, 32 Neb. 94; 48 N. W. Rep. 882.

Bronk v. Riley, 2 N. Y. Supl. 266; Sedalia Brewing Co. v. Sedalia Water-Works Co., 34 Mo. App. 49.

Kitts v. Williams, 89 Ind. 95.

5 As a sample of this kind of legislation, the code of California may be cited, which provides:

66

'Except where otherwise provided by this title, a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant:

"1. Where pecuniary compensation would not afford adequate relief; "2. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief;

"3. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; or,