Abbildungen der Seite
PDF
EPUB

$499. Injunctions not to issue without bill.

It is a general rule that no injunction will issue until the bill is filed. The granting of injunctions without a bill was one of the articles of impeachment of Cardinal Wolsey.22 There are, however, exceptions to the general rule.23 Thus, on petition of the committee of a lunatic, without a bill filed, an order was granted to stay waste upon the estate of the lunatic.24 $ 500. Staying proceedings at law.

The interference of a court of equity with actions at law, and especially with judgments, so long the object of jealousy and opposition, has, in most jurisdictions, been subjected to restrictions by the legislature which afford ample security against an abuse of the process. A bond is usually required to be given and a release of errors is frequently required.25

§ 501. Form of bill.

A bill for injunction must show by direct and positive statements the facts entitling the complainant to the relief prayed. A preliminary injunction will not be granted where the material allegations of the bill are merely on information and belief.26 Thus, where an injunction is asked upon a bill based

22 1 Hoffman, Ch. Pr. 76; Vliet v. Sherwood, 37 Wis. 165.

23 Peck v. Crane, 25 Vt. 146; 1 Hoffman, Ch. Pr. 77; McNamara v. Arthur, 2 Ball & B. 349; 1 Barbour, Ch. Pr. 615.

24 In re Hallock, 7 Johns. Ch. (N. Y.) 24; In re Creagh, 1 Ball & B. 108. For other cases where an injunction has been granted without bill filed, see Smith v. Smith, 3 Atk. 304; Smith v. Clarke, 2 Dickens, 455; Nichols v. Kearsly, 2 Dickens, 645; City of London v. Bolt, 5 Ves. 129; In re Weaver, 2 Mylne & C. 441.

251 Hoffman, Ch. Pr. 82. See, for illustrative statute, Rev. St. Ill. c. 69, §§ 4, 5.

26 Cunningham v. Tucker, 14 Fla. 251; Lovell v. Chilton, 2 W. Va. 410; Waddell v. Bruen, 4 Edw. Ch. (N. Y.) 671; Ockenholdt v. Frohman, 60 Ill. App. 300; Patterson v. Miller, 57 N. C. 451; Ballard v. Eckman, 20 Fla. 661. It is said that the only exception to the rule is that a preliminary injunction is sometimes allowed upon allegations founded upon information and belief until, under an order to show cause, a hearing can be had, and proper evidence adduced. Cunningham v. Tucker, 14 Fla. 251.

[graphic]

on the ground of fraud, the facts constituting the fraud should appear by positive averments, founded upon the complainant's own knowledge, or that of some one else, personally cognizant with such facts.27 But averments on information and belief, if the bill afterwards avers that such information is derived from the defendant or his testator, are sufficient averments of knowledge to sustain the injunction. 28 In short, a bill for injunction should set out facts definitely and positively, with particularity and minuteness, and with no uncertainty and indefiniteness. A general allegation of irreparable injury will be insufficient.29 The bill must expressly pray an injunction, and that as well in the prayer for process as in the prayer for relief.30 It cannot be granted under a prayer for general relief, unless the necessity of it grows out of the proceedings, and not from the original situation of the parties.31 An injunction bill may be amended without prejudice to an injunction previously allowed. Whether or not it is necessary, in order to save the injunction, to insert in the order the words "without prejudice to the injunetion," is a question upon which the authorities are not harmonious. Where a bill prays for relief by way of injunction, and

32

27 Brooks v. O'Hara, 8 Fed. 529; Powell v. Parker, 38 Ga. 644.

28 Cole v. Savage, Clarke Ch. (N. Y.) 361; Hone v. Moody, 59 Ga. 731; Ballard v. Eckman, 20 Fla. 661.

29 Perkins v. Collins, 3 N. J. Eq. 482; Ex parte Foster, 11 Ark. 304; Battle v. Stephens, 32 Ga. 25; Longshore Printing Co. v. Howell, 26 Or. 527, 38 Pac. 547, 46 Am. St. Rep. 640, 28 L. R. A. 464; Camp v. Matheson, 30 Ga. 170; Poyer v. Village of Des Plaines, 123 Ill. 111, 13 N. E. 819, 5 Am. St. Rep. 494; Kesner v. Miesch, 90 Ill. App. 437. See United States Equity Rule 21.

30 1 Barbour, Ch. Pr. 615; Wood v. Beadell, 3 Sim. 273; Story, Eq. Pl. § 41; Lube, Eq. Pl. 74; Willett v. Woodhams, 1 Ill. App. 411; Clark v. Judson, 2 Barb. (N. Y.) 90; Walker v. Devereaux, 4 Paige (N. Y.) 229.

31 1 Barbour, Ch. Pr. 615; Wright v. Atkyns, 1 Ves. & B. 314; Savery v. Dyer, Amb. 139; Thompson v. Maxwell, 16 Fla. 773. See, also, Jefferson v. Hamilton, 69 Ga. 401; Lewiston Falls Mfg. Co. v. Franklin County, 54 Me. 402.

32 That the insertion of the saving clause is unnecessary, see Renwick v. Wilson, 6 Johns. Ch. (N. Y.) 81; Clark v. Judson, 2 Barb. (N. Y.) 90; Dipper v. Durant, 3 Mer. 465; Adney v. Flood, 1 Madd. 449; Mason

does not contain a prayer for process of injunction, the process cannot be granted.33 As heretofore stated, every bill or petition. upon which a preliminary injunction is asked must be duly verified.34 In matters of preliminary injunction, all the facts necessary to sustain the injunction must be verified by positive. proofs. The affidavit must be such as to submit the party to the penalty of perjury if the facts sworn to appear to be otherwise. If the complainant does not personally know the facts constituting the ground of his case, he should annex to the bill the affidavits of those from whom the information was derived.35

v. Murray, 2 Dickens, 536. That such clause is required, see Dixon v. Redmond, 2 Schoales & L. 515; Bliss v. Boscawen, 2 Ves. & B. 101. For form of order allowing amendment of an injunction bill without prejudice to the injunction, see Renwick v. Wilson, 6 Johns. Ch. (N. Y.) 81. “The cases seem to leave no doubt of the practice of the court in allowing amendments after answer to an injunction bill; and the conclusion which they establish is that the injunction must stand or fall upon the original bill and the answer thereto, and the amendments cannot be used in support of the injunction." Renwick v. Wilson, 6 Johns. Ch. (N. Y.) 81, citing Mayne v. Hochin, 1 Dickens, 255; Vere v. Glynn, 2 Dickens, 441. For injunctions on amended bills, see 1 Barbour, Ch. Pr. 617; Statham v. Hughes, 2 Sim. & S. 382; Wood v. Beadell, 3 Sim. 273; Parker v. Grant, 1 Johns. Ch. (N. Y.) 434; Clark v. Judson, 2 Barb. (N. Y.) 90; Layton v. Ivans, 2 N. J. Eq. 387; Lloyd v. Brewster, 4 Paige (N. Y.) 537, 27 Am. Dec. 88. For injunctions on supplemental bills, see 1 Barbour, Ch. Pr. 617; Smith v. Davis, 22 Fla. 405; Ledwith v. City of Jacksonville, 32 Fla. 1, 13 So. 454; Griswold v. Jackson, 2 Edw. Ch. (N. Y.) 461; Waterman v. Buck, 63 Vt. 544, 22 Atl. 15; Bloomfield v. Snowden, 2 Paige (N. Y.) 355; Snediker v. Pearson, 2 Barb. Ch. (N. Y.) 108; Tone v. Brace, Clarke Ch. (N. Y.) 514.

33 Union Bank of Maryland v. Kerr, 2 Md. Ch. 460; Lewiston Falls Mfg. Co. v. Franklin Co., 54 Me. 402; Willett v. Woodhams, 1 Ill. App. 411. See United States v. Agler, 62 Fed. 824.

34 See supra, § 83. For cases involving verification of injunction bills, see Marsh v. Davison, 9 Paige (N. Y.) 580; Youngblood v. Schamp, 15 N. J. Eq. 42; Coxetter v. Huertas, 14 Fla. 270; Triebert v. Burgess, 11 Md. 452; Perkins v. Collins, 3 N. J. Eq. 482; Hawkins v. Hunt, 14 Ill. 42; Neil v. Oldbach, 86 Ill. App. 354; Fowble v. Kemp, 92 Md. 630, 48 Atl. 379; Board of Trade v. Riordan, 94 Ill. App. 298. For manner of verifying creditors' bills, see Hamersley v. Wyckoff, 8 Paige (N. Y.) 72; 1 Barbour, Ch. Pr. 618; Sizer v. Miller, 9 Paige (N. Y.) 606.

35 Thompson v. Ocean City R. Co. (N. J. Eq.) 37 Atl. 129; Campbell

[graphic]

§ 502. How obtained.

Injunctions are usually obtained by application to the court in which the bill is filed. The question is largely regulated by statute or rule of court, and statutes are sometimes found providing that a master in chancery, in the absence of the court, may issue an injunction.36

§ 503. Form of bill for injunction to restrain waste.

[Title of court, and address to the court.]

Your orator, A. B., of the said county of Cook and state of Illinois, respectfully represents unto your honors:

(1) That, before and at the time of making the indenture hereinafter mentioned, your orator was seised in fee simple of the following described property [here describe the premises], and, being so seised, by a certain indenture bearing date the 1st day of June, A. D. 1901, and made between your orator of the one part, and C. D., of the said county of Cook, the defendant hereinafter named, of the other part, your orator did demise, release, and to farm let unto the said C. D., his executors, administrators, and assigns, all [here describe from the lease the subject of the demise], to hold the same, with the appurtenances, unto the said C. D., his executors, administrators, and assigns, from the 1st day of July, A. D. 1901, for the term of five years thence next ensuing, at a yearly rental of three hundred ($300) dollars. And the said defendant, C. D., did thereby, for himself, his executors, administrators, and assigns, covenant, promise, and agree with your orator, his heirs and assigns, that he, the said C. D., his executors, administrators, or assigns, would, during the said term, keep the said premises in good repair, and manage and cultivate the said farm and lands in a proper, husbandlike manner, according to the custom of the country, as by the said indenture of lease, a copy of which is hereto attached and marked "Exhibit A," and made a part hereof, reference being thereunto had, will more fully appear.

(2) That the said C. D., under and by virtue of said indenture and lease, entered upon the said demised premises, with the appurtenances. and was possessed thereof, for the said term so to him granted thereof by your orator as aforesaid.

(3) That, at the time the said C. D. entered upon the said premises, the same were in good repair and condition, and your orator hoped that

v. Morrison, 7 Paige (N. Y.) 158; Reboul's Heirs v. Behrens, 5 La. 79; Nusbaum v. Stein, 12 Md. 315; Union Bank of Maryland v. Poultney, 8 Gill. & J. (Md.) 332. In New Music Hall Co. v. Orpheon Music Hall Co., 100 Ill. App. 278, is found a form of affidavit held to be sufficiently certain to warrant the issuance of an injunction.

36 1 Barbour, Ch. Pr. 621; Rev. St. Ill. c. 90, § 6

the sald C. D. would have so kept the same, and have cultivated the said lands in a proper and husbandlike manner, according to the custom of the country, and that such part of the said premises as consisted of meadow or pasture land would have so remained, and not have been plowed up and converted into tillage, and that no waste would have been committed on the said premises.

(4) But now so it is, may it please your honors, that the said C. D., combining and confederating with divers persons at present unknown to your orator, whose names, when discovered, your orator prays he may be at liberty to insert herein, with apt words to charge them, as parties defendant hereto, and contriving how to wrong and injure your orator in the premises, has absolutely refused and failed to so cultivate said lands in a proper and husbandlike manner, and makes pretense that the said premises now are in as good repair as when he entered in or to the same, and that he has cultivated the said farm and lands in a proper and husbandlike manner, and that no waste has been committed by him thereon. Whereas your orator charges that the said premises, and the buildings and outhouses, gates, rails, and fences, were in a good and perfect state and condition when the said C. D. entered upon the said premises, but now are very ruinous and bad, and the land very much deteriorated, from the willful mismanagement and improper cultivation thereof by the said C. D., who has plowed up certain fields, called by the name of the Brown and Jones fields, situated [here describe fields], containing, respectively, twenty-five and forty acres, and has otherwise committed great spoil, waste, and destruction in and about the said premises.

(5) That the said C. D. ought to put the said premises into the same condition they were in when he entered thereon, and to make your orator a reasonable compensation for the waste and damage done or incurred.

(6) That the said C. D. threatens to and is about to plow up the remaining pasture lands upon the said premises, and particularly the fields called Smith and Green, and containing, respectively, fifty and twenty acres, and that the said C. D. ought to be restrained by the order and injunction of this honorable court from plowing up the remaining pasture fields, part of the said demised premises, and particularly the two fields last herein mentioned, and also restrained from committing any further or other waste, spoil, or destruction in and about or to the said estate and premises, or any part thereof, and that he ought to put the said premises into the same condition they were in when he entered thereon, and to make your orator a reasonable compensation for the waste and damage done or incurred thereto.

(7) That the said C. D., at the time of the making of said lease, was a person of large means and of financial responsibility, but that since such time he has, by dissipation and idleness, squandered his wealth, and is now wholly insolvent and unable to respond in damages to any judgment which your orator might recover against him on account of

« ZurückWeiter »