59

injunction order is sufficient without a writ." A notice by telegraph is sufficient, provided such notice is entitled to credit, and clearly informs the defendant of the nature of the injunction, and, if he disregards it, he may be punished for contempt.60 It is held that a subpoena should be served along with the injunction upon a defendant;61 but failure to serve the subpoena does not render the proceedings void. The remedy is a motion to dissolve the injunction.62

§ 516. Effect of injunction.

As long as the injunction is in operation, it must be obeyed, notwithstanding it may have been improperly or irregularly issued.63 Though erroneous, it is entitled to obedience so long as it stands. The remedy in such cases is by appeal or writ of error from the order, and not by leaving that order stand, and treating it with contempt, and then appealing from the order of punishment for its violation.64 Though the injunction is

injunction is sufficient, without any actual service, to put him in contempt for its violation." Kempson v. Kempson, 61 N. J. Eq. 303, 48 Atl. 244; Glay v. People, 94 Ill. App. 598.

59 Fowler v. Beckman, 66 N. H. 424, 30 Atl. 1117.

60 Cape May & S. L. R. Co. v. Johnson, 35 N. J. Eq. 422; State v. Knight, 3 S. D. 509, 54 N. W. 412; In re Bryant, 4 Ch. Div. 98. For sufficiency of notice, see Phillips v. City of Detroit, 2 Flip. 92, Fed. Cas. No. 11,101; Golden Gate Consolidated Hydraulic Min. Co. v. Superior Court of Yuba County, 65 Cal. 187, 3 Pac. 628; Safford v. People, 85 Ill. 558. As to whether a party served with notice of a motion for an injunction is guilty of contempt by performing the act intended to be enjoined, see Greenleaf v. Leach, 20 Vt. 281.

61 1 Hoffman, Ch. Pr. 167; 1 Barbour, Ch. Pr. 631; Parker v. Williams, 4 Paige (N. Y.) 439; Lee v. Cargill, 10 N. J. Eq. 331; Seebor v. Hess, 5 Paige (N. Y) 85; Waffle v. Vanderheyden, 8 Paige (N. Y.) 45.

62 See Lash v. McCormick, 14 Minn. 482 (Gil. 539); Attorney General v. Nichol, 16 Ves. 337; Davis v. Reed, 14 Md. 152. The injunction and subpoena may be served at the same time. Thebaut v. Canova, 11 Fla. 143.

631 Barbour, Ch. Pr. 632; Moat v. Holbein, 2 Edw. Ch. (N. Y.) 188; Sullivan v. Judah, 4 Paige (N. Y.) 444; United States v. Debs, 64 Fed. 724; City of New York v. New York & Staten Island Ferry Co., 64 N. Y. 622.

64 Glay v. People, 94 Ill. App. 598; Lover v. People, 158 Ill. 159, 42

broader than is authorized by the bill, it must be obeyed. The defendant's remedy is to apply for a modification of it according to the case made by the bill.65 But a person violating an injunction void for want of jurisdiction is not punishable for contempt.

§ 517. Breach of injunction.

What constitutes a breach of injunction must depend, in some measure, upon the form of the injunction and the nature of the act prohibited. It is said that an injunction operates from the time the order is made, and not merely from the time of its being sealed, or even from the time of its being drawn.67 To be guilty of a breach of injunction, a party must have notice of it. But although, strictly speaking, he ought to be served with the writ itself, under the seal of the court, in the manner already pointed out, circumstances will justify the committal without the actual service of the writ, as where a matter is pressing, and there is not time to procure the writ.68 § 518. Parties affected by injunction.

The obligations of an injunction will not usually be extended

N. E. 82; Watson v. Citizens' Sav. Bank, 5 Rich. (S. C.) 159; Hines v. Rawson, 40 Ga. 356; Phillips v. City of Detroit, 2 Flip. 98, Fed. Cas. No. 11,101; Cape May & S. L. R. Co. v. Johnson, 35 N. J. Eq. 422. 65 Loven v. People, 158 Ill. 159, 42 N. E. 82; Richards v. West, 3 N. J. Eq. 456. See, however, Freeman v. Deming, 4 Edw. Ch. (N. Y.) 598, holding that the part of an injunction going beyond the prayer of the bill is ineffective, and a violation of such part is not punishable.

66 Dickey v. Reed, 78 Ill. 261; Willeford v. State, 43 Ark. 62; Ex parte Wimberly, 57 Miss. 437; Barthe v. Larquie, 42 La. Ann. 131, 7 So. 80.

671 Barbour, Ch. Pr. 633; Vansandau v. Rose, 2 Jac. & W. 264. See, on the question of entering an order, People v. Lawrence, 34 Chicago Leg. News, 132, a recent case in Cook county, Illinois, involving the question whether an order must be actually entered after the court has pronounced its decision in order to warrant the punishing for contempt of one who commented upon the decision. State v. Tugwell, 19 Wash. 242, 52 Pac. 1056; Fishback v. State, 131 Ind. 600, 31 N. E. 86.

481 Barbour, Ch. Pr. 633.

to persons who are not named in the writ. It is usual, therefore, for the injunction not only to require the defendant himself to refrain from doing the acts prohibited, but also to eu join him from procuring or permitting the acts by his servants, agents, or attorneys. This practice is of peculiar application where the actual party named is a corporation, for in such case the act enjoined, if done at all, must be done by some officer, agent, or servant to whose province the particular act relates.69 It has been held that any person who, having notice that an injunction order has been made against a party to the suit, aids and assists that party in its violation, is as much amenable to proceedings for contempt as if he were a party named in the record.70 Violation of an injunction is punished by means of attachment for contempt, which will hereafter be considered.

§ 519. Dissolution of injunction.

If the defendant desires to have the injunction dissolved before final hearing, he may apply to the court which issued the injunction to have it dissolved. This is usually done by motion. The continuance of an injunction, while frequently said to rest in the discretion of the court, is controlled by established rules.72

71

69 2 High, Inj. (2d Ed.) § 1440; Buhlman v. Humphrey, 86 Iowa, 597, 53 N. W 318; Barthe v. Larquie, 42 La. Ann. 131, 7 So. 80; Trimmer v. Pennsylvania, S. & N. E. R. Co., 36 N. J. Eq. 411; Lennon v. Lake Shore & M. S. Ry. Co., 22 U. S. App. 561, 64 Fed. 320; Wellesley v. Mornington, 11 Beav. 181; Rorke v. Russell, 2 Lans. (N. Y.) 242; Phillips v. City of Detroit, 2 Flip. 92, Fed. Cas. No. 11,101; Fellows v. Fellows, 4 Johns. Ch. (N. Y.) 25; In re Reese, 98 Fed. 984; Robertson v. Tapscott's Adm'r, 81 Va. 533.

70 Lennon v. Lake Shore & M. S. Ry. Co., 22 U. S. App. 561, 64 Fed. 320. One may be guilty of a breach of an injunction by aiding and abetting those who are committing an act inconsistent with it, although he should not. actually take part in such act. 1 Barbour, Ch. Pr. 635; St. John's College v. Carter, 8 Law J. Ch. 218; Woodward v. Lincoln, 3 Swanst. 626; Hankey v. Morris, 2 Eq. Cas. Abr. 528. 71 Foster, Fed. Pr. (3d Ed.) § 235.

72 Chetwood v. Brittan, 2 N. J. Eq. 438; Buffington v. Harvey, 95 U. S. 99; Jewett v. Dringer, 27 N. J. Eq. 271; Bibb v. Shackelford, 38 Ala. 611; Roberts v. Anderson, 2 Johns. Ch. (N. Y.) 202; Loyless V.

§ 520. Dissolution for want of equity.

Want of equity on the face of the bill is ground for the dissolution of an injunction, whether the defendant has answered or not.73 Even where a bill is not fully answered, if the bill shows no equity, it will not prevent the dissolution of the injunction.74 On a motion to dissolve for want of equity appearing on the face of the bill, the facts alleged will be taken as true, as on a demurrer.75 A motion to dissolve for want of equity on the face of the bill may be made at any time;76 and it is held to be no error to dissolve an injunction without notice, if there is no equity in the bill.77

§ 521. Answer denying averments of bill.

It is a general rule that the injunction will be dissolved upon the coming in of the answer denying all of the equity of the bill; but this rule is not inflexible, and the dissolution rests in the discretion of the court.78 Where a motion to dissolve is heard on bill and answer, the responsive allegations of the anHowell, 15 Ga. 554. In cases of irreparable mischief, the dissolution of an injunction rests in the sound discretion of the court, whether applied for before or after answer. Norway v. Rowe, 19 Ves. 153; Poor v. Carleton, 3 Sumn. 70. Fed. Cas. No. 11,272; Hollister v. Barkley, 9 N. H. 230; Attorney General v. Oakland County Bank, Walk. (Mich.) 90.

73 Chesapeake & Ohio Canal Co. v. Baltimore & O. R. Co., 4 Gill & J. (Md.) 1; Morrison v. Coleman, 87 Ala. 655, 6 So. 374, 5 L. R. A. 384; White Sulphur Springs Co. v. Robinson, 3 W. Va. 542; Morris Canal & Banking Co. v. Biddle, 4 N. J. Eq. 222; Hart v. Clark, 54 Ala. 490.

74 Quackenbush v. Van Riper, 1 N. J. Eq. 476.

78 Titus v. Mabee, 25 Ill. 257; Bennett v. McFadden, 61 Ill. 334. 76 Williams v. Berry, 3 Stew. & P. (Ala.) 284.

77 White Sulphur Springs Co. v. Robinson, 3 W. Va. 542; Chesapeake & Ohio Canal Co. v. Baltimore & O. R. Co., 4 Gill & J. (Md.) 1; Williams v. Berry, 3 Stew. & P. (Ala.) 284. The court may, of its own motion, dissolve an injunction when it appears that the writ has issued in a case where the party asking it had no right to it. Conover v. Ruckman, 32 N. J. Eq. 685.

78 Nelson v. Robinson, Hempst. 464, Fed. Cas. No. 10,114; Poor v. Carleton, 3 Sumn. 70, Fed. Cas. No. 11,272; Owen v. Brien, 2 Tenn. Ch.

swer must be taken as true.79 It is held that an answer under oath is evidence for the answering defendant, at the hearing of the motion to dissolve an injunction, although the bill does not call for a sworn answer.80 Even where the bill on which an injunction depends is verified by the affidavit of a credible and disinterested witness, the defendant is entitled to have the injunction dissolved on the coming in of an answer denying the whole equity of the bill under oath, and it makes no difference that the bill is sworn to by several complainants.81 Where the allegations of the bill are not fairly met by the answer, or the answer is unsatisfactory as to any matter which is an essential part of the complainant's equity, or does not deny, explicitly, the facts on which that equity is founded, the injunction will not be dissolved.82 The denial must be founded on personal knowledge, not merely on information and belief;83 but this rule is subject to exceptions, and in some cases it is held that a positive denial by the defendant is sufficient, although the facts are not within his own knowledge, as where, in case of a bill alleging an agreement made by the defendant's agent, the defendant and agent deny the allegation, and circumstances corroborate their denial.84

Upon the motion to dissolve, allegations of the bill not denied by the answer are taken to be true.85 The answer is to be re

295; Snyder v. Seeman, 41. N. J. Eq. 405, 5 Atl. 637; Spencer v. Jones, 85 Va. 172, 7 S. E. 180; Blundon v. Crosier, 93 Md. 355, 49 Atl. 1. 79 Webster v. Hardisty, 28 Md. 592.

80 Walker v. Hill's Ex'rs, 21 N. J. Eq. 191; Manchester v. Dey, 6 Paige (N. Y.) 295; Gelston v. Rullman, 15 Md. 260; Webster v. Couch, 6 Rand. (Va.) 519.

81 Manchester v. Dey, 6 Paige (N. Y.) 295.

82 Randall v. Morrell, 17 N. J. Eq. 343; Gibby v. Hall, 27 N. J. Eq. 282; Columbus & W. Ry. Co. v. Witherow, 82 Ala. 190, 3 So. 23; Thomas v. Horn, 24 Ga. 481.

83 Nelson v. Robinson, Hempst. 464, Fed. Cas. No. 10,114; Lake Shore & M. S. R. Co. v. Felton, 103 Fed. 227; Roberts v. Anderson, 2 Johns. Ch. (N. Y.) 202; Ward v. Van Bokkelen, 1 Paige (N. Y.) 100.

84 Campbell v. Runyan, 42 N. J. Eq. 843, 8 Atl. 298; Coale v. Chase, 1 Bland (Md.) 136; Clayton v. Lyle, 55 N. C. 188.

85 Wakeman v. Gillespy, 5 Paige (N. Y.), 112; Young v. Grundy, 6 Cranch (U. S.) 51; Hamilton v. Whitridge, 11 Md. 128, 69 Am. Dec.