that the misrepresentation was through inadvertence, misinformation, or otherwise.110

§ 529. Effect of laches.

In cases of injunction, more diligence in prosecuting the suit is required than in ordinary suits. It is the duty of the complainant, having obtained an injunction, to prosecute his suit. with all diligence, and failure to do so is a cause for dissolution.111 But if there is no evidence of willful procrastination, or where the defendant resides beyond the reach of the process of the court, and there is mere delay in taking out a process, or in prosecuting the suit, the injunction will not be dissolved.112 § 530. Order of dissolution.

Where a part only of the defendants apply to dissolve an injunction, it can be dissolved only as to them.113 Upon dissolution, it is proper to undo what has been wrongfully done by means of the injunction, and to restore the status quo.114 And, on dissolution of the injunction, it is proper for the court to restore the defendant to the possession of the premises of which the complainant has taken possession pending the injunction, by means of a writ of restitution.115 The dismissal of a suit, though made without prejudice, operates to dissolve the injunction.118 Upon dissolving the injunction, the court may, in its discretion, impose terms, as by requiring the defendant to give a bond of indemnity.117

110 Endicott v. Mathis, 9 N. J. Eq. 110. See, as to immaterial misstatements, Frome v. Board of Chosen Freeholders of Warren County, 33 N. J. Eq. 464.

111 Classen v. Danforth, 56 Ill. App. 552; Huffman v. Hummer, 17 N. J. Eq. 263; Depeyster v. Graves, 2 Johns. Ch. (N. Y.) 148; Atkins v. Billings, 72 Ill. 598.

112 Read v. Consequa, 4 Wash. C. C. 174, Fed. Cas. No. 11,606; Schermerhorn v. L'Espenasse, 2 Dall. 360, Fed. Cas. No. 12,454.

113 Teller v. Van Deusen, 3 Paige (N. Y.) 33. See Duncan v. State Bank, 2 Ill. 262.

114 Herrington v. Herrington, 11 Ill. App. 121; Wangelin v. Goe, 50 Ill. 459.

115 Lake Shore & M. S. Ry. Co. v. Taylor, 134 Ill. 603, 25 N. E. 588. 116 Yale v. Baum, 70 Miss. 225, 11 So. 879; Coleman v. Hudson River Bridge Co., 5 Blatchf. 56, Fed. Cas. No. 2,983.

117 City of Portland v. Oregonian Ry. Co., 6 Fed. 321; Cook v. Jenkins,

§ 531. Form of decree dissolving injunction and dismissing bill for want of equity.

[Title of court and cause.]

This day came the parties hereto, by their respective solicitors, and thereupon came on to be heard the motion of the defendants to dissolve the injunction heretofore granted in this cause, which was argued by counsel, and the court, being fully advised in the premises, Doth order, adjudge, and decree that the injunction heretofore granted herein be and it is hereby dissolved.

And, on motion of the solicitor for the defendants, it is ordered that leave be and it is hereby granted to the defendants to file a suggestion of damages herein within ten days from this date.

And, on motion of the solicitor for the defendants, it is further ordered, adjudged, and decreed that this cause be and it is hereby dismissed out of this court, at complainants' costs, for want of equity, but retained for the purpose of suggesting damages.

And thereupon it is ordered and considered that the defendants have and recover of the complainants their costs in this behalf expended, to be taxed, and that execution issue therefor.118

§ 532. Dismissal of bill upon motion to dissolve.

It has been held in Illinois that, where a bill for injunction only is before the court, and a temporary injunction has been granted, a motion to dissolve the injunction for want of equity has the same effect as a demurrer to the bill, and the court, on sustaining the motion to dissolve the injunction, may properly dismiss the bill, and is not required to retain the same for hearing on the pleadings and proofs. The same rule prevails where a bill is filed for injunction only, which, on hearing, is refused. The bill may, in such case, be dismissed for want of equity, for the same reason as in a case where a preliminary injunction has been granted, and a motion has been entered to dissolve the

35 Ga. 113; Wood v. Braxton, 54 Fed. 1005; Campbell v. Point Pleasant & Ohio River R. Co., 23 W. Va. 448.

118 The foregoing form of decree was employed in American Live Stock Commission Co. v. Chicago Live Stock Exchange, 143 Ill. 210, 32 N. E. 274.

119 Field v. Village of Western Springs, 181 Ill. 186, 54 N. E. 929. See, for form of order in such case, supra, § 531.

(545)

§ 533. Form of decree for perpetual injunction.

[Title of court and cause.]

This cause coming on to be heard upon the 3d day of March, A. D. 1898, being one of the days of the February term of this court, upon the bill of complaint in said cause, and the demurrer filed by the defendant thereto, and the cause having been argued by the solicitors for the complainants and defendant, and the court being fully advised in the premises,

It is hereby ordered that the demurrer to the said bill of complaint be overruled; and thereupon the defendant, having elected to stand by his demurrer, waives the right to answer the said bill; and thereupon the court finds the material allegations in the said bill of complaint to be true, and that the equity of the said cause is with the complainants.

And it is ordered, adjudged, and decreed that the said defendant, C. U. G., and his agents, servants, attorneys, and assigns, be and each and all of them are hereby restrained and perpetually enjoined from further occupying or trespassing upon the submerged lands of Lake Michigan, opposite lot thirteen of Simmons & Gordon's addition to Chicago, a subdivision of a portion of the school trustees' subdivision of fractional section sixteen, township forty north, range fourteen east of the third principal meridian, in the county of Cook aforesaid; said lot thirteen being shown upon the plan made by said commissioners of Lincoln Park, referred to in the said bill of complaint, a copy of which plan, upon a reduced scale, is made an exhibit to said bill of complaint, which said submerged lands are vested in the said commissioners of Lincoln Park in fee simple, according to the allegations in the said bill of complaint.

It is further ordered, adjudged, and decreed that the said defendant, C. U. G., be and he hereby is ordered and directed to remove forthwith the pier by him built, and which is described in the said bill of complaint, opposite the land aforesaid, and which was built by him upon the submerged lands described, opposite the said lot thirteen. It is further ordered, adjudged, and decreed that the costs of this cause be taxed against the said defendant, C. U. G.

From which said decree the said defendant, C. U. G., prays an appeal to the supreme court of the state of Illinois, which is allowed on his filing a bond, to be signed by himself, with surety to be approved by the court, in the sum of two hundred and fifty dollars, with in twenty days from the date of the entry of this decree.

M. F. T.,

Judge.120

120 This decree was entered in Gordon v. Winston, 181 Ill. 338, 54 N.

E. 1095.

CHAPTER XXX.

CONTEMPTS.

534. Power to punish for contempt.

The power to punish for contempt is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the court, and, consequently, to the due administration of justice.1 Courts of equity possess this power as fully as do courts of law, and it is more frequently invoked in the former tribunals than in the latter, for the reason that in many cases it is the only means for the enforcement of a

decree.2

§ 535. Different kinds of contempt.

Prosecutions for contempt are of two kinds: When instituted for the purpose of punishing a person for misconduct in the presence of the court, or with respect to its authority or dignity, it is criminal in its nature. When put upon foot for the purpose of affording relief between parties to the cause, it is civil, sometimes called "remedial." There is another

1 Ex parte Robinson, 19 Wall. (U. S.) 512; In re Perkins, 100 Fed. 950; Eilenbecker v. District Court of Plymouth County, 134 U. S. 31; Cartwright's Case, 114 Mass. 230; Carter v. Com., 96 Va. 791, 32 S. E. 780. Rev. St. U. S. § 725, limits the power of the federal courts to punish contempts. Eilenbecker v. District Court of Plymouth County, 134 U. S. 31.

2 Rapalje, Contempt, § 3; United States v. Hudson, 7 Cranch (U. S.) 32; Remley v. De Wall, 41 Ga. 466; State v. Matthews, 37 N. H. 450; Yates v. Lansing, 9 Johns. (N. Y.) 395; Mariner v. Dyer, 2 Me. 165; Ex parte Adams, 25 Miss. 883.

Rapalje, Contempt, § 21; People v. Diedrich, 141 Ill. 665, 30 N. E. 1038; Rawson v. Rawson, 35 Ill. App. 505; Lester v. People, 150 Ill. 408, 23 N. E. 387, 41 Am. St. Rep. 375; Ex parte Edwards, 11 Fla. 184; Phil

classification made of contempts, namely, into direct and constructive contempts. Direct contempts are those which openly insult or resist the power of the courts or the persons of the judges who preside there. Constructive contempts are those which, without such gross insolence or direct opposition, plainly tend to create a universal disregard of their authority.* Courts have an undoubted power to punish direct and criminal contempts, and this power to punish direct or criminal contempts also necessarily includes the power to punish indirect, consequential, or constructive contempts, such acts as are calculated to impede, embarrass, or obstruct the court in the administration of justice."

§ 536. What are contempts.

The decisions as to what is contempt of court are numerous and interesting, but not always uniform. The exercise of the power frequently has a twofold purpose,-to punish the guilty party for his disrespect to the court or its order, and to compel his performance of some act or duty required of him by the court, which he refuses to perform. The disobedience of any decree within the jurisdiction of a court is a contempt, however erroneous or improvident the entering of it may have been." lips v. Welch, 11 Nev. 187; In re Chiles, 22 Wall. (U. S.) 157; People v. Court of Oyer & Terminer of New York, 101 N. Y. 245, 4 N. E. 259; Thompson v. Pennsylvania R. Co., 48 N. J. Eq. 105, 21 Atl. 182. It is held that, when contempt is classified as a criminal offense, it is a misdemeanor, and not a felony. In re Acker, 66 Fed. 290; Rawson v. Rawson, 35 Ill. App. 505; State v. McClaugherty, 33 W. Va. 250, 10 S. E. 407.

44 Bl. Comm. 283; Rapalje, Contempt, § 22; Kyle v. People, 72 ILL App. 171; Stuart v. People, 4 Ill. 395; Church, Habeas Corpus, § 307; City of Newport v. Newport Light Co., 92 Ky. 445, 17 S. W. 435. "Contempts are either direct, such as are offered to the court while sitting as such, and in its presence, or constructive, being offered, not in its presence, but tending, by their operation, to obstruct and embarrass or prevent the due administration of justice." Stuart v. People, 4 Ill. 395. Church, Habeas Corpus, § 307, quoted in Kyle v. People, 72 Ill. App.

171.

• In re Chiles, 22 Wall. (U. S.) 169; In re Perkins, 100 Fed. 950.

7 Rapalje, Contempt, § 33, citing In re Cohen, 5 Cal. 494; Wightman v. Wightman, 45 Ill. 167.