21

settled that this provision of law does not apply to proceedings incidental to jurisdiction properly acquired by a Federal court for other purposes than that of enjoining proceedings in a State court, that the proposition needs no discussion." 20 It has been held that a judge of a Circuit or District Court has no power to enjoin the enforcement of a judgment in a State court after an appeal to the Supreme Court of the United States and a supersedeas; " and that can only be done, if at all, by a justice of the Supreme Court. Proceedings in a State court cannot be enjoined upon the sole ground that they are taken under a State statute which is repugnant to the Federal Constitution.23 It has been held that a Federal court can prevent by injunction the levy of a State sheriff under State process against a State judgment-debtor upon the property of a stranger to the suit and process; 24 but not the sale by the sheriff of the property of sureties on a sale bond under the execution of a State court; nor, it seems, enjoin the sale by the sheriff of property in his possession and in the custody of the State court; 26 that a Federal court may enjoin the use of a judgment of a State court when the validity of the judgment is not thereby impaired.

25

An injunction granted by a State court to stay proceedings in the same or another tribunal of the State remains in force after a removal to a Federal court of the suit in which it was granted, although such an injunction could not be originally issued in the Federal court in a suit removed from a State court.29 It has been held that in the Federal courts an injunction cannot be granted to forbid the prosecution in a State

20 Gregory v. Pike, 67 Fed. R. 835, 836, per Putnam, J.

21 Murray v. Overstoltz, 8 Fed. R. 110.

22 Ibid.

23 Rensselaer & S. R. Co. v. B. & R. Co., 18 Fed. R. 617. See, however, U. S. R. S., 1979; Tuchman v. Welch, 42 Fed. R. 548; reversed, s. c., 45 Fed. R. 283; criticised in 24 Am. L. Rev. 661.

24 Cropper v. Coburn, 2 Curt. 465. 25 Am. Ass'n Ld. v. Hurst, 59 Fed. R. 1.

26 Southern Bank & Tr. Co. v. Folsom (C. C. A.), 75 Fed. R. 929; Watson v. Bondurant, 2 Woods, 166; Perry v. Sharpe, 8 Fed. R. 23; supra, § 9.

27 Linton v. Mosgrove, 14 Fed. R. 543, criticised in Am. Ass'n Ld. v. Hurst, 59 Fed. R. 1, 4, but supported by Provident L. & Tr. Co. v. Mills, 91 Fed. R. 435.

28 Smith v. Schwed, 6 Fed. R. 455; Perry v. Sharpe, 8 Fed. R. 15. But see Lawrence v. Morgan's R. R. & S. S. Co., 121 U. S. 634.

29 Diggs v. Wolcott, 4 Cranch, 179.

or to

court of criminal proceedings, whether then pending be subsequently commenced; nor against a removal from office, State 32 or Federal.33 "This court," said Lord Hardwicke, speaking of the Court of Chancery, "has no jurisdiction to stay proceedings on a mandamus; nor to an indictment; nor to an information; nor to a writ of prohibition, that I know of." 35 It has been doubted whether a Federal Circuit Court has the power to enjoin the prosecution of a suit in a Federal court in another circuit.36 Such an injunction has been refused when sought by a defendant to a patent-suit for the purpose of enjoining the prosecution of suits previously brought upon the same patent. The subsequent commencement of suits upon the same patent has been enjoined. It has been held that, in a suit by the United States to vacate a patent for an invention, a preliminary injunction will not be granted to restrain the prosecution by the defendant of suits for the infringement of the patent.39 Where a plaintiff is bringing suits upon the same patent against different defendants, who rely upon the same defenses, the court may stay proceedings in all but one till the validity of the patent has been finally determined in the excepted case.40 But where some of the de

37

30 Fitts v. McGhee, 172 U. S. 516, 571; Harkrader v. Wadley, 172 U. S. 148, 169.

31 Ibid.

32 In re Sawyer, 124 U. S. 200.

33 White v. Berry, 171 U. S. 366; White v. Butler, 171 U. S. 379.

34 But it has been held that a Federal court may enjoin a State officer from an act, although an application is then pending for a mandamus to compel him to perform it, and it was said that the injunction would be a defense to the mandamus proceeding. Bank of Kentucky v. Stone, 88 Fed. R. 383, 398.

35 Lord Montague v. Dudman, 2 Vesey Sr. 396, 398.

36 Kelley v. Ypsilanti D. S. Mfg. Co., 44 Fed. R. 19, 20, per Brown, J. 37 Kelley v. Ypsilanti D. S. Mfg. Co., 44 Fed. R. 19; Am. School F. Co. v. J. M. Sauder Co., 106 Fed. R. 731.

38

But see Ide v. Ball Eng. Co., 31 Fed.
R. 901.

38 Birdsall v. Manufacturing Co., 1 Hughes, 64. But see Strait v. Nat. Harrow Co., 51 Fed. R. 819. A bill to enjoin defendant from prosecuting an action at law for an infringement cannot be sustained when the only grounds alleged are that complainant will be put to great expense for attorney's fees and other costs, and that he is informed that defendant will be unable to pay the same. Germain v. Wilgus (C. C. A.), 67 Fed. R. 597.

39 U. S. v. Colgate, 21 Fed. R. 318. 40 Birdsell v. Hagerstown Ag. I. Mfg. Co., 1 Hughes, 64; Rumford Chem. Works v. Hecker, 5 Off. Gaz 644; Allis v. Stowell, 16 Fed. R. 783; Nat. Cash Reg. Co. v. Boston Cash L. & R. Co., 41 Fed. R. 51.

fendants set up different defenses, it was held that the court "could not restrain in part and permit in part the prosecution of the cases. It would have no right to issue an injunction which should [sic] have the effect to split up the cases, enjoining their prosecution as to some branches of the controversy and permitting it as to the others." It was at first held that a court had no power to restrain a defendant from suing in a foreign court; 42 but it is now established that it can do so,43 though such a power is exercised with great caution." An injunction order providing "that all suits and proceedings on the part of" certain persons "against the said bankrupt, to collect the debt set forth, be, and the same are hereby stayed, to await the determination of the court in bankruptcy on the question of the discharge therein," was held violated by those who, after discontinuing a suit then pending, subsequently instituted another to recover the same claim, with new allegations charging fraud.

45

§ 212. Injunctions to restrain the alienation of property. Injunctions may be obtained to prevent the alienation of property "where it would work irremediable or gross injustice."1 An injunction will, therefore, issue to prevent the transfer of notes, bills of exchange, and other documents, whether negotiable or not, whose possession gives their holder a presumptive title to the rights which they evidence, when obtained from the plaintiff by the defendant through duress, fraud, or other iniquity; or when forged; or when, though the holder may have properly obtained them, he threatens or is about to use them in an inequitable manner. An injunction may be granted to prevent a party from making vexatious alienations of land

3

41 Dyer, J., in Allis v. Stowell, 16 Fed. R. 783, 790.

42 Love v. Baker, 1 Ch. Cas. 67, decided by Lord Clarendon; but the reporter added, "sed quære, for all the bar was of another opinion."

43 Bunbury v. Bunbury, 1 Beav. 318; Dehon v. Foster, 4 Allen (Mass.), 545; Engel v. Scheuerman, 40 Ga. 206; Massie v. Watts, 6 Cranch, 148; Cole v. Cunningham, 133 U. S. 107.

44 Vail v. Knapp, 49 Barb. (N. Y.) 299; Story's Eq. Jur., $$ 899, 900.

2

45 In the Matter of Schwarz, 14 Fed. R. 787.

§ 212. Story's Eq. Jur., § 953.

2 Osborn v. U. S. Bank, 9 Wheat. 738, 845; Lloyd v. Gurdon, 2 Swanst. 180; Hood v. Aston, 1 Russ. 412; Lord Chedworth v. Edwards, 7 Ves. 46; Reeve v. Perkins, 2 J. & W. 390; Schermerhorn v. L'Espenasse, 2 Dall.

360.

3 Esdaile v. La Nauze, 1 Y. & C. 394. 4 Anon., 6 Madd. 10.

8

7

5

pending a suit concerning the title to the same. For it was said that, otherwise, the plaintiff might be put to the expense of making each vendee or grantor a party to the proceedings; and, at all events, his title, if he prevails in the suit, may be embarrassed by the new outstanding claims of title under the threatened transfer. The sale or transfer, or removal beyond the jurisdiction of the court, of a chattel, the loss of which could not be compensated in damages, may also be thus restrained; and so has been the sale of other personal property. Injunctions have also been granted at the suit of a part-owner to prevent the sailing of a ship until his share could be ascertained, and a bond given to secure him against loss upon the voyage; 10 to prevent the removal of timber wrongfully cut down;" and to prevent the trustees of a dissenting chapel from appointing as a minister a person not duly qualified according to its constitution.12

§ 213. Injunctions to prevent waste.- An injunction will issue to prevent waste, whether legal or purely equitable.1 Waste is a permanent injury to real estate committed by a person in possession with a limited interest in the same. Legal waste consists of such acts as would be considered waste at common law; equitable waste, of such acts as at law would not, under the circumstances of the case, be considered waste, but which are so esteemed in the view of a court of equity, from their manifest injury to the inheritance, though not inconsist ent with the legal rights of the party committing them. Such is wilful and wanton injury to land committed by a tenant

Daly v. Kelly, 4 Dow, 417; Echliff v. Baldwin, 16 Ves. 267. But see Turner v. Wight, 4 Beav. 40.

Christie v. Craig, 2 Mer. 137. But see Wilkinson v. Dobbie, 12 Blatchf. 298. 11 Bradley v. Reed, 2 Pittsb. (Pa.)

6 Daniell's Ch. Pr. (2d Am. ed.) 519; Anon., 1 Ves. Sr. 93; Daniell's 1873.

7 Gibson v. Lewis, 11 Phila. (Pa.) 476; Lady Arundell v. Phipps, 10 Ves. 139; Daniell's Ch. Pr. (2d Am. ed.) 1872.

8 Green v. Hanberry, 2 Brock. 403; Haly v. Goodson, 2 Mer. 77; Christie v. Craig, 2 Mer. 137.

Ch. Pr. (2d Am. ed.) 1874.

12 Milligan v. Mitchell, 1 M. & K.

446.

§ 213. Garth v. Cotton, 1 Dick. 183; Thruston v. Mustin, 3 Cranch, C. C. 335; U. S. v. Gear, 3 How. 120; Fletcher v. N. O. N. E. R. Co., 20 Fed. R. 345; Lanier v. Alison, 31 Fed. R.

9 Bateau v. Bernard, 3 Blatchf. 244; 100; Bispham's Eq., §§ 429-432. Higgins v. Jenks, 3 Ware, 17.

2 Daniell's Ch. Pr. (2d Am. ed.) 1854,

10 Haly v. Goodson, 2 Mer. 77; 1855.

3

without impeachment for waste. The interference of equity in cases of this kind is justified, not only by the fear of irremediable injury, but also because the tenant for life or years is considered to stand in a trust relation toward the remainderman. So anxious is equity to prevent waste, that it has sustained a bill praying such an injunction filed in behalf of a child in its mother's womb. An injunction will be granted to restrain acts in the nature of waste committed by one in possession of land the title to which is in litigation. It has been held that an applicant for the purchase of government land whose claim is disputed in the land office cannot obtain an injunction to prevent acts of waste by county officers."

§ 214. Injunctions to prevent the continuance of a nuisance. The interference of equity to enjoin the continuance of a nuisance is not only due to the fact that the acts complained of produce irreparable injury, but also is allowed to prevent the multiplicity of suits that would be necessary were the plaintiff confined to his remedy at common law. Nuisances are of two kinds: those which are injurious to the public at large, and those which are injurious to the rights and interests of private persons. The use of this remedy to suppress a public nuisance is of very ancient date. It was applicable in England, both to nuisances strictly so called and to purprestures. "By purpresture is meant, in its present acceptation, an encroachment upon the Crown, either upon part of the demesne lands, or upon the high roads, rivers, ports, or streets; and the difference between purprestures and nuisances consists in this, that where the jus privatum of the Crown is invaded it is a purpresture, but where the jus publicum is violated it is a nuisance. In cases of purpresture the remedy is either by information for an intrusion at the common law, or by information in equity at the suit of the attorney-general. The consequence of a judgment at common

3 Vane v. Lord Barnard, 2 Vern. 738; Garth v. Sir John Hind Cotton, 1 Dick. 183; s. C., 1 White & Tudor's Lead. Cas. in Eq. (6th ed.) 806; Bispham's Eq., § 434.

4 Musgrave v. Parry, 2 Vern. 710; Lutterel's Case, cited Prec. Ch. 50; Scatterwood v. Edge, 1 Salk. 229.

5 U. S. v. Parrott, 1 McAll. 271; Lanier v. Alison, 31 Fed. R. 100. 6 McBride v. Pierce County, 44 Fed. R. 17.

§ 214. 1 Fishmongers' Co. v. East India Co., 1 Dick. 163; Atty. Gen. v. Nichol, 16 Ves. 338, 343.

2 Daniell's Ch. Pr. (2d Am. ed.) 1857. 3 Ibid.