32 will in any case grant an injunction against the publication of a libel is a disputed question. It has been held that an injunction may be granted against the publication and circulation of posters and handbills in aid of a boycott," and of threats to commit an unlawful act. An injunction will not issue to assist in the maintenance of a monopoly injurious to public policy; 33 nor in any other case when its operation would be repugnant to public policy. An injunction will not issue when the moving party has a plain, adequate, and complete remedy at law.35 United States Revised Statutes, section 5242, provides that "No attachment, injunction or execution shall be issued against a 'national bank' association or its property before final judgment in any suit, action, or proceeding in any State, county, or municipal court." 34 § 224. Distinction between the judicial writ and the writ remedial. Injunctions were formerly either judicial writs or writs remedial. A judicial writ was a direction to yield up, to quiet, or to continue the possession of lands, and is said to be in the nature of a writ of execution. It was issued in aid of, and only after a final decree in equity; and, in extraordinary circumstances, in aid of a judgment at law. Under the equity 30 Held that it can, in Ide v. Ball Engine Co., 31 Fed. R. 901, U. S. C. C., S. D. Illinois, by Allen J.; Emack v. Kane, 34 Fed. R. 46, U. S. C. C., N. D. Illinois, by Blodgett, J.; Home Ins. Co. v. Nobles, 63 Fed. R. 642. Cf. Palmer v. Travers, 20 Fed. R. 501, U. S. C. C., S. D. N. Y., by Wheeler, J.; Celluloid Mfg. Co. v. Goodyear D. V. Co., 13 Blatchf. 375, U. S. C. C., S. D. N. Y., by Hunt, J. Held that it cannot, in Kidd v. Horry, 28 Fed. R. 773, U. S. C. C., E. D. Pa., by Bradley and McKennan, JJ.; Baltimore C. W. Co. v. Bemis, 29 Fed. R. 95, U. S. C. C., D. Mass., by Colt and Carpenter, JJ.; Fougeres v. Murbarger, 44 Fed. R. 292, U. S. C. C., D. Indiana, by Woods, J.; International T. C. Co. v. Carmichael, 44 Fed. R. 350, 351, U. S. C. C., E. D. Wis., by Jenkins, J. See Francis v. Finn, 118 U. S. 385; Kelley v. Ypsilanti, D. S. M. Co., 44 Fed. R. 19, 23. 31 Casey v. Cincinnati Typ. Union No. 3, 45 Fed. R. 135; Coeur d'Alene Cons. & Min. Co. v. Miners' Union, 51 Fed. R. 260. 32 Continental Ins. Co. v. Board of Fire Underwriters, 67 Fed. R. 310. 33 Pullman P. C. Co. v. Texas & Pac. Ry. Co., 11 Fed. R. 625; s. c., 4 Woods, 317; Foll's Appeal, 91 Pa. St. 434, 438. But see Edison El. Lt. Co. v. Sangerman El. Co. (C. C. A.), 53 Fed. R. 592; supra, § 216. 34 Bryant v. W. U. Tel. Co., 17 Fed. R. 825; Blake v. Greenwood Cem., 14 Blatchf. 342; Denehey v. Harrisburg, 2 Pearson (Pa.), 330, 334. 35 U. S. R. S., § 723. § 224. 1 Eden on Injunctions, chs i and xvii, pp. 1, 2, 261, 262; Beames' Orders, 8, 16. 2 Boult v. Blunt, Cary, 72; Eden on Injunctions, 262. rules, however, it is never necessary; and it had previously fallen into disuse in England. All other injunctions are writs remedial. § 225. Distinction between mandatory and prohibitory injunctions. Injunctions are either mandatory or prohibitory. A mandatory injunction is one that commands a defendant to perform a certain act or acts; a prohibitory injunction, one that forbids a defendant's doing a certain act or acts. Mandatory are far less common than are prohibitory injunctions. Those most frequently issued have been such as commanded a defendant to abate a nuisance, or to deliver the possession of land. They also have been granted to compel the return of letters and other documents, the delivery of personal property whose loss could not be compensated in damages, the giving of collateral security in obedience to a contract, the making of a policy of insurance, the stopping and receiving freight by a railroad company at a particular place, the performance of a contract by one railroad company to send freight over the lines of another railroad, the receipt of freight cars and passengers from one railroad company by another, and the transportation of the same, the furnishing of equal facilities by a railroad company to another railroad company,10 or to a shipper," and the rescission of an order for the boycott of a railway company.12 In a case involving the constitutionality of § 225. 1 Lane v. Newdigate, 10 Ves. 192; Robinson v. Lord Byron, 1 Bro. C. C. 588; Hervey v. Smith, 1 K. & J. 389; Rankin v. Huskisson, 4 Sim. 13; Bickett v. Morris, L. R. 1 H. L. Sc. 47; Cole S. M. Co. v. Virginia & G. H. W. Co., 1 Saw. 470. 2 Hepburn v. Auld, 5 Cranch, 262; Hepburn v. Dunlop, 1 Wheat. 170; Findlay v. Hinde, 1 Pet. 241; Pokegama S. P. L. Co. v. Klamoth R. L. & L. Co., 86 Fed. R. 528. Evitt v. Price, 1 Sim. 483; Seton on Decrees (4th ed.), 179. See also Clarke v. White, 12 Pet. 178. Pusey v. Pusey, 1 Vern. 273; Duke of Somerset v. Cookson, 3 P. Wms. 389; Greatrex v. Greatrex, 1 De G. & Sm. 692; McGowin v. Remington, 12 Pa. St. 56. 9 Chicago, B. & Q. Ry. Co. v. Burlington, C. R. & N. Ry. Co., 34 Fed. R. 481; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co., 54 Fed. R. 730; In re Lennon, 166 U. S. 548. 10 Ibid. 11 Butchers' & D. St. Co. v. Louisville, S. & N. R. Co. (C. C. A.), 67 Fed. R. 35; Wells, F. & Co. v. N. Pac. Ry. Co., 23 Fed. R. 469. 12 Chicago, B. & Q. Ry. Co. v. Bur certain Kentucky statutes, the court refused a mandatory injunction compelling a distribution of the money raised by a tax upon white people partly among public schools for colored children, in the absence of any contract right or legislative authority for such a distribution; but granted "a decree enjoining and restraining the proper parties from applying to the use of the schools organized for and at which white children only are allowed to attend, one-fourth of the money heretofore, or which may be hereafter, collected under the authority of the act of 1871 and its amendments." 13 Mandatory injunctions are usually issued in a negative form, restraining a defendant from desisting or refusing to do an act. They are very rarely granted upon an interlocutory motion.15 14 § 226. Distinction between provisional and perpetual injunctions. Provisional, also called preliminary or interlocu tory, injunctions are such as are to continue until a certain time usually specified therein; for example, until the coming in of the defendant's answer, the hearing of the cause, the master's report, or the further order of the court. Perpetual, also called final, injunctions are those which, as their name denotes, perpetually restrain the defendant from the same act or acts. Provisional injunctions may be granted at any time during the progress of a suit. Perpetual injunctions can never lington, C. R. & N. Ry. Co., 34 Fed. R. 481; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co., 54 Fed. R. 730; In re Lennon, 166 U. S. 548. See So. Cal. Ry. Co. v. Rutherford, 62 Fed. R. 796. Dinsmore v. L. C. & L. Ry. Co., 2 13 Barr, J., in Claybrook v. Owens- 6 Fed. R. 426; Chicago & A. Ry. Co. boro, 23 Fed. R. 634, 636. 14 Southern Exp. Co. v. St. Louis, I. M. & S. Ry. Co., 10 Fed. R. 210, 869; Smith v. Smith, L. R. 20 Eq. 500, 504; Cole S. M. Co. v. Virginia & G. H. W. Co., 1 Saw. 470. 15 Denver & N. O. R. Co. v. Atchison, T. & S. F. R. Co., 13 Fed. R. 546; McCauley v. Kellogg, 2 Woods, 13; Camblos v. Phil. & R. R. Co., 9 Phila. (Pa.) 411; s. C., 4 Brews. (Pa.) 503; Rogers L. Works v. Erie Ry. Co., 5 C. E. Green (20 N. J. Eq.), 379; Miles v. Johnston, 59 Fed. R. 38. But see v. N. Y., L. E. & W. R. Co., 34 Fed. R. 516; C. S. M. Co. v. V. & G. H. W. Co., 1 Saw. 685; Chicago, B. & Q. Ry. Co. v. Burlington, C. R. & N. Ry. Co., 34 Fed. R. 481; Southern Pac. R. Co. v. City of Oakland, 58 Fed. R. 50; In re Lennon, 166 U. S. 548; Pokegama S. P. L. Co. Klamoth R. L. & L. Ry. Co., 86 Fed. R. 528; Fairfield Floral Co. v. Bradbury, 87 Fed. R. 415. See Mandatory Injunctions, by Judge Jacob Klein, 12 Harv. Law Rev. 95. § 226. 1 Daniell's Ch. Pr. (2d Am. ed.) 1810; Eden on Injunctions, ch. xv. be granted except at the time of the entry of the decree. The setting up of outstanding terms can, it has been said, only be restrained by a perpetual injunction. Mandatory injunctions also will very rarely be granted before a decree. "It is a rule of practice in the Circuit Courts of the United States not to allow an injunction to stay an ejectment suit until it can be investigated in equity, unless a judgment be entered therein."5 § 227. Distinction between common and special injunctions. Injunctions were formerly of two kinds, common and special. Common injunctions were granted, as of course, upon the defendant's default either in appearing or answering, and were only applicable to restrain proceedings at common law.1 Special injunctions were those granted, not as a matter of course, but upon the special circumstances of the case as disclosed by the answer of the defendant or upon affidavits. Common injunctions, although recognized by the equity rules,3 have been abolished by the Revised Statutes. The learning upon the subject, which is very technical, seems now, therefore, useless, and will not be repeated here." § 228. Time and place of applications for interlocutory injunctions. An injunction may be obtained, at any time, as well in vacation as in term, and whether the court be sitting or not, at any place within which the judge granting it has jurisdiction, and at almost any stage of the cause. In England it has been held, that, in a very extraordinary case, an injunction may be granted upon petition before the filing of a bill or the service of a subpoena. In a court of the United States an injunction 2 Daniell's Ch. Pr. (2d Am. ed.) 1903; Adams v. Crittenden, 17 Fed. R. 42. 3 Hylton v. Morgan, 6 Ves. 293; Byrne v. Byrne, 2 Sch. & Lef. 537; Barney v. Luckett, 1 Sim. & S. 419; Northey v. Pearce, 1 Sim. & S. 420. 4 Camblos v. Phila. & R. R. Co., 9 Phila. (Pa.) 411; s. C., 4 Brewst. (Pa.) 563; Rogers L. & M. Works v. Erie Ry. Co., 5 C. E. Green (N. J.), 379. But see Dinsmore v. L., C. & L. Ry. Co., 2 Fed. R. 465; Coe v. L. & N. R. Co., 3 Fed. R. 775, and other cases cited under § 225. 5 Billings, J., in Heirs of Szywauski v. Zunts, 20 Fed. R. 361, 363, citing Turner v. Am. B. M. Union, 5 Mc- § 227. Daniell's Ch. Pr. (2d Am. ed.) 1877. 2 Daniell's Ch. Pr. (2d Am. ed.) 1833. 3 Rule 55. 4 Perry v. Parker, 1 W. & M. 280; Lawrence v. Bowman, 1 McAll. 419. 5 See Daniell's Ch. Pr. (2d Am. ed.) 1811-1833. § 228. Daniell's Ch. Pr. (5th Am. ed.) 1663; Kerr on Injunctions, 543, 545; Bacon v. Jones, 4 Myl. & Cr. 433. 2 Mayor of London v. Bolt, 5 Ves. 129. has been issued' upon the filing of the bill and before service of the subpoena, and restraining orders are often granted. It has been held that a non-resident defendant who cannot be served with process may be enjoined from infringing a patent within the district. An injunction will ordinarily be refused while a demurrer or plea to the bill is pending. But in cases of emergency, the court may order the sufficiency of such a pleading to be argued before the regular time for such a proceeding, together with the motion for the injunction; or even grant a restraining order without waiting for the argument. Should a motion be heard while a demurrer is on the file and undisposed of, it seems that upon the hearing of the motion the allegations in the bill will be considered as admitted. An application for an injunction has been refused because the bill had been referred for scandal.10 § 229. Injunctions not prayed for in the bill.-The English rule was that an injunction would not issue against a person not made a party to a bill specifically praying an injunction against him; and the injunction had to be prayed for not only in the prayer for relief, but also in the prayer for process. To this, however, there were four exceptional classes of cases. If the court had by its decree taken the distribution or control of property into its own hands, it would prevent injury thereto either by the parties litigant or others, although no injunction had been prayed by the bill. Thus, in a foreclosure suit, it would restrain waste by the mortgagor after a decree for an account; and after a decree for the administration of the assets of a dead man, it would enjoin a creditor not a party to the suit from proceeding at law against the testator's or intestate's estate to satisfy his individual claim, provided that the executor 3 Schermerhorn v. L'Espenasse, 2 Dall. 360. 4 Cf. U. S. R. S., § 718; infra, § 230. 5 Kennedy v. Penn. L. & Coal Co., 67 Fed. R. 339. 6 Cousins v. Smith, 13 Ves. 164; Ketchum v. Driggs, 6 McLean, 13; Anon., 2 Atk. 113; Daniell's Ch. Pr. (5th Am. ed.) 1671. 7 Anon. v. Bridgewater C. Co., 9 Sim. 378; Daniell's Ch. Pr. (5th Am. ed.) 1671. 8 Wardle v. Claxton, 9 Sim. 412; Maltby v. Bobo, 14 Blatchf. 53; Fremont v. Merced M. Co., 1 McAll. 267. 9 Bayerque v. Cohen, McAll. 113. 10 Davenport v. Davenport, 6 Madd. 251. § 229. Daniell's Ch. Pr. (5th Am. ed.) 1614-1617. 2 Wood v. Beadell, 3 Sim. 273. 3 Daniell's Ch. Pr. (5th Am. ed.) 1614. 4 Wright v. Atkyns, 1 V. & B. 313 |