to go into a comprehensive examination of the subject of injunctions, or to state the cases under which the court will interfere by the process of injunction. To do so would require, not a chapter merely, but a treatise. The use of the writ may be said to be commensurate with the jurisdiction of the court. It is the principal instrument of that administrative and protective jurisprudence which constitutes the marked characteristic of the chancery system. The process has been termed the "right arm of the court of chancery," and it may be stated, generally, that whenever a complainant is entitled to equitable relief, if that relief consists in restraining the commission, or the continuance of some act of the defendant, the court will enjoin him by means of this prohibitory writ.5

4

§ 494. Different kinds of injunctions.

The

Injunctions are either provisional, general, or perpetual. In England they were also divided into common or special. writ in America is always special, the common injunction being unknown in most jurisdictions, and, by the English practice, having been granted merely upon a default of the defendant in not putting in his answer. Provisional injunctions are such as are to continue until the coming in of the defendant's answer, or until the hearing of the cause, or until the master has made his report. Injunctions of this nature are either preliminary or temporary.7

§ 495. Preliminary injunctions.

In many cases where the complainant's bill asks for a per

41 Hoffman, Ch. Pr. 76.

51 Barbour, Ch. Pr. 615. See, for general consideration of injunc tions, High, Inj.; Beach, Inj.; Waterman's Eden, Inj.; Spelling, Inj.; and American Digest (Century Ed.) vol. 27, where the American cases to 1896 are digested.

61 Barbour, Ch. Pr. 608; 1 Hoffman, Ch. Pr. 77; King v. Harrison, 2 Mer. 475; Eden, Inj. 43; Davile v. Peacock, Barnard. Ch. 27; Buckley v. Corse, 1 N. J. Eq. 504; Bibb v. Shackelford, 38 Ala. 611; Selden v. Vermilya, 4 Sandf. Ch. (N. Y.) 573.

71 Barbour, Ch. Pr. 608.

petual injunction it may be necessary to stay the proceedings of the defendant during the pendency of the suit. For this purpose, a preliminary injunction may issue, but the bill should contain a formal prayer for it. A preliminary injunction rests in the discretion of the court, and ought not to be granted unless the injury is pressing, and a delay dangerous. There are many cases in which the complainant would be entitled to a perpetual injunction at the hearing, where it would be improper to grant him a preliminary injunction. The granting and refusing of interlocutory injunctions is discre

81 Barbour, Ch. Pr. 608; Walker v. Devereaux, 4 Paige (N. Y.) 229. Preliminary injunctions are frequently termed "interlocutory injunc tions." Allen v. Hawley, 6 Fla. 142, 63 Am. Dec. 198; Audenried v. Philadelphia & Reading R. Co., 68 Pa. 570.

1 Barbour, Ch. Pr. 608; New York Printing & Dyeing Establishment v. Fitch, 1 Paige (N. Y.) 97. Injunctions are not granted because they will do no harm. Hinson v. Ralston, 100 Ill. App. 214. "A preliminary injunction maintaining the status quo may properly issue whenever the questions of law or fact to be ultimately determined in a suit are grave and difficult, and injury to the moving party will be immediate, certain, and grave if it is denied, while the loss or inconvenience to the opposing party will be comparatively small and insignificant if it is granted. Great Western Ry. Co. v. Birmingham & O. J. Ry. Co., 2 Phillips, 597, 602; Glascott v. Lang, 3 Mylne & C. 451, 455; Shrewsbury & C. Ry. Co. v. Shrewsbury & B. Ry. Co., 1 Sim. (N. S.) 410, 426; Georgia v. Braislford, 2 Dall. (U. S.) 402; Blount v. Societe Anonyme du Filtre Chamberland Systeme Pasteur, 6 U. S. App. 335, 3 C. C. A. 455, 53 Fed. 98; Dooley v. Hadden, 38 U. S. App. 651, 20 C. C. A. 494, 74 Fed. 429; Jensen v. Norton, 29 U. S. App. 121, 12 C. C. A. 608, 64 Fed. 662." City of Newton v. Levis, 79 Fed. 715. "The order for such an injunction does not finally determine the rights of the parties to the action, and its only purpose and effect are to preserve the exist ing state of things until the case has been fully heard by the court, and the entry of a final decree therein. And it is equally well settled that the granting of a provisional injunction rests in the sound discretion of the trial court, and that it is not necessary that the court should, before granting it, be satisfied from the evidence before it that the plaintiff will certainly prevail upon the final hearing of the cause. On the contrary, to adopt the language of the court in Georgia v. Braislford, 2 Dall. (U. S.) 402, ‘a probable right, and a probable danger that such right will be defeated, without the special interposition of the court,' is all that need be shown as a basis for such an order." Sanitary Reduction Works v. California Reduction Co., 94 Fed. 693.

11

tionary with the court, but such discretion is not an arbitrary one, but must be exercised reasonably.10 As a general rule, a mandatory injunction will not be granted on preliminary application. It is held that a preliminary injunction ought not to be granted before answer unless it is necessary to protect some interest or right of the complainant which may be injured, impaired, or endangered by the proceedings of the defendant in the meantime.12 Where, however, by the delay, the injury might be irreparable, a preliminary injunction will be granted.13

$ 496. Temporary injunctions.

Temporary injunctions are granted, where necessary to prevent irreparable injury, before regular notice of the application for a general injunction can be given. Such injunctions

10 Doughty v. Somerville & E. R. Co., 7 N. J. Eq. 629, 51 Am. Dec. 267; Grey v. Ohio & P. R. Co., 1 Grant Cas. (Pa.) 412; Buffington v. Harvey, 95 U. S. 99; Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567; Rowley v. Van Benthuysen, 16 Wend. (N. Y.) 369; Lamar v. Gardner, 111 Ga. 850, 36 S. E. 640; Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20.

11 High, Inj. § 2; World's Columbian Exposition Co. v. Brennan, 51 Ill. App. 128; Delaware, L. & W. R. Co. v. Central Stock-Yard & Transit Co., 43 N. J. Eq. 71, 10 Atl. 490; Kyle v. Auburn & Rochester R. Co., 1 Ch. Sent. (N. Y.) 86; Washington University of Baltimore v. Green, 1 Md. Ch. 97; Murdock's Case, 2 Bland (Md.) 461; Farmers' R. Co. v. Reno, O. C. & P. Ry. Co., 53 Pa. 224; Gale v. Abbot, 8 Jur. (N. S.) 987; Audenried v. Philadelphia & Reading R. Co., 68 Pa. 370. There are some instances in England in which a mandatory order has been made on an interlocutory application. Attorney General v. Metropolitan Board of Works, 1 Hem. & M. 321; Hepburn v. Lordan, 2 Hem. & M. 345; Lane v. Newdigate, 10 Ves. 192. But it is said in Audenried v. Philadelphia & Reading R. Co., 68 Pa. 370, that these were very extreme cases, and ought not to be followed. See, also, Rogers Locomotive & Machine Works v. Erie Ry. Co., 20 N. J. Eq. 379. But see criticism of Audenried v. Philadelphia & Reading R. Co., 68 Pa. 370, by Mr. Justice Field, in Cole Silver Min. Co. v. Virginia & Gold Hill Water Co., 1 Sawy. 685, Fed. Cas. No. 2,990.

121 Barbour, Ch. Pr. 609; Osborn v. Taylor, 5 Paige (N. Y.) 515. 18 Arthur v. Case, 1 Paige (N. Y.) 447.

may also be granted, where the case is urgent, immediately on filing the bill, to continue until an answer is filed.11

$497. General injunctions.

A general injunction is the process ordinarily employed in a cause. It continues in force until the further order of the court; whereas a provisional injunction only operates until the coming in of the defendant's answer, or until the hearing of the cause, or until the master has made his report. A general injunction may be either granted upon the filing of a bill,

141 Barbour, Ch. Pr. 610; Bloomfield v. Snowden, 2 Paige (N. Y.) 355; Jeremy, Eq. Jur. 312; Tonson v. Walker, 3 Swanst. 679. Restraining orders have been sometimes used, and then only for temporary purposes, and have always been made interlocutory, and not final, in their operation. Burch v. Scott, 1 Bland (Md.) 123, 124; Murdock's Case, 2 Bland (Md.) 471, 472; Bonaparte v. Baltimore, H. & L. R. Co., 75 Md. 340, 23 Atl. 784. Such orders, if used at all, should, when they are passed at the time of the filing of the bill or petition, and before answer or hearing of the defendant, never go further than to suspend his action until an opportunity is afforded him to answer and defend, and they should be preliminary in form, and give the defendant an early day on which to move for their rescission. In other words, such orders must be governed by the principles applicable to the issue of preliminary injunctions, which it is well settled must not determine any right, nor necessarily prejudice either party, but simply preserve the property or fund in controversy until the further order of the court. Chesapeake & Ohio Canal Co. v. Young, 3 Md. 489; State v. Northern Cent. Ry. Co., 18 Md. 213; Clayton v. Shoemaker, 67 Md. 216, 9 Atl. 635; L. A. Thompson Scenic Ry. Co. v. Young, 90 Md. 278, 44 Atl. 1024. In the federal court the practice prevails of issuing what is termed a "restraining order" in anticipation of the hearing on a motion for an injunction. It is said in Ryan v. Seaboard & Roanoke R. Co., 89 Fed. 385, that such restraining order is a serious exercise of power, and should not be granted except upon a moral certainty of an irreparable injury if it be refused, and should not be continued when it is made to appear that such a result is not imminent. Allison v. Corson, 88 Fed. 581. But in Charles v. City of Marion, 98 Fed. 166, it was said: "In order to justify the granting of a temporary restraining order, it is sufficient if the plaintiff shows the existence of a prima facie right, with a threatened injury to that right by the defendants, and that the granting of a temporary restraining order would be less injurious to the defendants than the refusal to grant it would be to the plaintiff. For these reasons, a temporary restraining order will be granted until the final hearing of the cause."

or substituted in the place of a provisional injunction, upon the falling of the latter, or may be granted at the final hearing, where a perpetual injunction is not proper.15

498. Perpetual injunctions.

Perpetual injunctions are such as form part of the decree made at the hearing, upon the merits, whereby the defendant is perpetually inhibited from the assertion of a right, or perpetually restrained from the commission of an act, which would be contrary to equity and good conscience.16 The practice of granting perpetual injunctions is not confined to cases in which the parties are in a position to annoy the complainant by proceedings which they may have a legal right to institute, but to prevent a continuance or repetition of acts for which they have no legal authority whatever.17 To support a decree for a perpetual injunction, there must be nothing like a doubt in the case.18 It is not absolutely necessary that an interlocutory injunction should have been obtained.19 Even if a preliminary injunction was improperly granted for want of notice to the defendant, such irregularity constitutes no objection to a final decree making such injunction perpetual, where the proof justifies a decree for an injunction.20 An injunction is never made perpetual except upon the hearing of the cause.2

21

15 1 Barbour, Ch. Pr. 612; Bloomfield v. Snowden, 2 Paige (N. Y.) 355.

16 1 Barbour, Ch. Pr. 613; Bushnell v. Harford, 4 Johns. Ch. (N. Y.) 302; Caruthers v. Hartsfield, 3 Yerg. (Tenn.) 366; Newburgh & Cochecton Turnpike Road v. Miller, 5 Johns. Ch. (N. Y.) 111; Hanington v. Du Chatel, 1 Brown Ch. 124; Attorney General v. Steward, 21 N. J. Eq. 340.

171 Barbour, Ch. Pr. 613; Millington v. Fox, 3 Mylne & C. 338; Macklin v. Richardson, Amb. 696.

18 Whittingham v. Wooler, 2 Swanst. 428.

19 1 Barbour, Ch. Pr. 614; Baily v. Taylor, 1 Russ. & M. 76; Bacon

v. Spottiswoode, 1 Beav. 383; Bacon v. Jones, 4 Mylne & C. 433.

20 Brown v. Luehrs, 79 Ill. 575.

211 Barbour, Ch. Pr. 615; Chapman v. Harrison, 4 Rand. (Va.) 336: Adams v. Crittenden, 17 Fed. 42.