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writ should contain a concise description of the particular acts or things in respect to which the defendant is enjoined; and should conform to the directions of the order granting the injunction. If, however, the writ is broader than the order warrants, the defendant should apply to the court for an order setting it aside or modifying it. It seems that he is not justified in disobeying it and raising the objection when a motion is made for an attachment against him. It seems that a writ is insufficient which designates the acts sought to be enjoined by a reference to the bill without describing them. The English practice was to mention in the writ a money penalty to be incurred by the defendant if he disobeyed it; but that does not seem to be necessary here.10 The writ should be addressed to the persons whom it is desired to enjoin." If the injunction is against waste, or forbids the continuance of a nuisance, or some other similarly inequitable act, it is usually addressed to the defendant, his servants, workmen, and agents; 12 if to re"Whipple v. Hutchinson, 4 Blatchf. servant, or employee do it for him,

190.

6 Sickles v. Borden, 4 Blatchf. 14.
7 Ibid.
8 Ibid.

9 Whipple v. Hutchinson, 4 Blatchf. 190; Sullivan v. Judah, 4 Paige (N. Y.), 444.

10 Low v. Hauel, 1 Wall. Jr. 345. Il Daniell's Ch. Pr. (2d Am. ed.) 1817. 12 Kerr on Injunctions, 559; Daniell's Ch. Pr. (5th Am. ed.) 1673; Humphreys v. Roberts, Seton's Decrees (4th ed.), 173; In re Lennon, 166 U. S. 548. In Dadirrian v. Gullian, 79 Fed. R. 784, per Kirkpatrick, D. J.: "The writ is directed specifically to the defendants in the suit, and then generally, without naming them, to their servants, agents, and employees. The object of this generalization is to prevent the defendants from doing by others that which the court has forbidden them to do personally; from accomplishing indirectly a result prohibited by the court. The full effect of the order is that the defendant shall not do the unlawful act himself, neither shall his agent,

nor shall the defendant do it as the agent, servant or employee of another. Potter v. Muller, 1 Bond, 601, Fed. Cas. No. 11,333. There is no restraint laid upon the agent, servant, or employee personally, but merely as the agent, servant, or employee of the enjoined defendant. Slater v. Merritt, 75 N. Y. 268; Wellesley v. Mornington, 11 Beav. 181. Notwithstanding the injunction and notice of it, he, upon ceasing to be the agent, servant, or employee of the defendant, is free to act for himself in the protection of his own rights and the prosecution of his own interests, even though it involve his doing the very thing prohibited his former master. Mexican Ore Co. v. Mexican G. M. Co., 47 Fed. R. 351. He may avoid obedience to a mandatory injunction by actually ceasing to be an employee of the company (Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. R. 746); and he may enter the service of another master, a stranger to the suit, and be as free as he from obligation to obey the

strain proceedings in another court, to the defendant, his attorneys, and agents,13 even though the bill prays for an injunction against the defendant alone. But the latter's tenants cannot be thus enjoined, unless they have become such after the commencement of the suit or have been made parties to it.1 In one case an injunction was granted against all persons acting in concert with the defendants named and under their direction and control.15 The writ should be indorsed or subscribed with the name and office address of the plaintiff's solicitor, or with the name and residence of the plaintiff if he appears in person.16

§ 235. Dissolution and modification of interlocutory injunctions. The common injunction was dissolved as of course upon the defendant's putting in a sufficient answer to the bill. The practice in such a case was for him to obtain an order nisi, upon the return of which the injunction was always dissolved, unless the plaintiff could show that the answer was insufficient for the purpose either of defense or of discovery.1 A special injunction can only be dissolved by a special motion, either in open court or at a special hearing appointed elsewhere for that purpose by a judge of the court. The motion may be made at any time before decree,' even, it seems, before the defendant has been served with process, and before he has appeared. When a special injunction has been granted against several defendants, any of them may move to dissolve it as against himself; but he should in that case serve the others as well as the plaintiff with a notice of his motion. In one case after answer, a notice left at the office of the solicitor for the plaintiff during his absence from the city three days before the

court's decree. People v. Randall, 73 N. Y. 416; Slater v. Merritt, 75 N. Y. 268."

13 Daniell's Ch. Pr. (5th Am. ed.)1673. 14 Hudson v. Coppard, 29 Beav. 4; Kerr on Inj. 543.

15 U. S. v. Elliott, 64 Fed. R. 27, 35. 16 Kerr on Inj. 559; Daniell's Ch. Pr. (5th Am. ed.) 1674.

§ 235. Daniell's Ch. Pr. (2d Am. ed.) 1820-1829; Poor v. Carleton, 3 Sumn. 70; New York v. Connecticut, 4 Dall. 1, 3, note 1, per Washington, J.

2 Kerr on Inj. 561; Daniell's Ch. Pr. 1675; Wilkins v. Jordan, 3 Wash. C. C. 226; Caldwell v. Walters, 4 Cranch, C. C. 577.

3 Kerr on Inj. 560; Daniell's Ch. Pr. (5th Am. ed.) 1675; Met. G. & S. Exch. v. Chicago B. of T., 15 Fed. R. 847.

4 Shields v. McClung, 6 W. Va. 79. 5 Menzies v. Rodrigues, 1 Price, 92. 6 Thompson v. Geary, 5 Beav. 131; Kerr on Inj. 564. But see Daniell's Ch. Pr. (5th Am. ed.) 1676, note 1.

motion was held sufficient." If the motion to dissolve is made before answer, it must be supported by affidavits or documentary proof contradicting the statements upon which the injunction was obtained, unless the defendant can show that it is plain upon the face of the plaintiff's bill and affidavits that he' was not entitled to the injunction, when the motion will be granted. When the injunction has been irregularly issued, the defendant should move to discharge the order granting it.10 If he should move to dissolve it, he might be held to have by so doing recognized its regularity." It has been held that after a demurrer put in by him to the bill has been overruled a defendant can only move to dissolve by leave of the court; which was, in one case, only granted upon his affidavit that the demurrer was not interposed for delay, and his giving security to pay all damage to the plaintiff thereby caused.12 Where the application for dissolution was made after answer, it was originally thought that the plaintiff could not show that any of the allegations therein contained were false; 13 but that doctrine has been, in this country at least, exploded," and it is well settled that the plaintiff can not only dispute the truth of such allegations, whether they are positive or negative, but is at liberty to file counter affidavits in reply to new matter contained in the defendant's affidavits or answer. 15 When a stayorder has been made, and simultaneous applications, by the defendant to discharge the stay-order, and by the plaintiff for an injunction, are heard together, the plaintiff has the right to open and close the argument.16 If upon the application to dis

7 Caldwell v. Walters, 4 Cranch, C. C. 577.

8 Daniell's Ch. Pr. (5th Am. ed.) 1676; Young v. Grundy, 6 Cranch, 51.

9 Hudson v. Maddison, 12 Sim. 416; Kidwell v. Masterson, 3 Cranch, C. C. 52; Fenwick Hall Co. v. Town of Old Saybrook, 66 Fed. R. 389.

10 Angier v. May, 3 W. R. 330; Daniell's Ch. Pr. (5th Am. ed.) 1676; Kerr on Inj. 564.

11 Vipan v. Mortlock, 2 Meriv. 476; Kerr on Inj. 564.

12 Woodworth v. Edwards, 3 W. & M. 120.

13 Daniell's Ch. Pr. (5th Am. ed.) 1676, note 4.

14 Poor v. Carleton, 3 Sumn. 70; U. S. v. Parrott, 1 McAll. 271; Orr v. Littlefield, 1 W. & M. 13; Orr v. Merrill, 1 W. & M. 376; Clum v. Brewer, 2 Curt. 506.

15 Day v. New Eng. C. S. Co., 3 Blatchf. 154; Daniells Ch. Pr. (5th Am. ed.) 1676; Shoemaker v. Nat. Mech. Bank, 1 Hughes, 101.

10.

16 Fraser v. Whalley, 2 Hem. & M.

18

solve an injunction the court is not satisfied that the plaintiff is entitled to retain it, it will dissolve the injunction, and may then direct an issue, an action at law, or a reference before the hearing." If, however, it is satisfied that the plaintiff is entitled to the writ, the court will direct the injunction to be continued until the hearing. Where the court dissolves the injunction upon the ground that it appears upon the face of the bill that the plaintiff is not entitled thereto, and that is the only relief prayed for by him, it cannot at the same time dismiss the bill; for the plaintiff has still the right to bring the suit to a hearing.19 If the question is left in doubt upon the motion to dissolve, it seems that the motion will be denied." The ambiguity of the order granting the injunction is sufficient ground for its dissolution or modification." The defendant's delay in moving to dissolve the injunction may deprive him of his right to have it dissolved. When a special injunc tion has been granted after a full hearing, it will not be dissolved except on new evidence. It has been held that a preliminary injunction will not be dissolved after answer upon grounds shown by affidavits, which, from their not having been set up in the answer, cannot be used at the hearing of the whole case. A judge will very rarely dissolve an injunction granted by one of his judicial brethren.25 A temporary injunction may be modified or dissolved by a Circuit Court after it has been

17 Daniell's Ch. Pr. (2d Am. ed.) 1897. 18 Packington v. Packington, 1 Dick. 101; Daniell's Ch. Pr. (5th Am. ed.) 1678.

19 Brooke v. Clarke, 1 Swanst. 550; Blow v. Taylor, 4 Hen. & Munf. (Va.)

159.

20 Cooper v. Mattheys, 5 Penn. L. J. 38; s. C., Law R. 413; Fisher v. Lord, 6 West L. J. 137; Woodworth v. Hall, 1 W. & M. 389; Woodworth v. Rogers, 3 W. & M. 135; Sparkman v. Higgins, 1 Blatchf. 205. But see Edison El. L. Co. v. Westinghouse El. & Mfg. Co., 54 Fed. R. 504.

22

Baker S. M. Co., 110 Mass. 1; Kerr on Inj. 565; Antisdel v. Chicago H. C. Co., 89 Fed. R. 308, 311.

23 Woodworth v. Hall, 1 W. & M.

389.

24 Union P. B. M. Co. v. Newell, 11 Blatchf. 549.

25 Cole S. Min. Co. v. Virginia & G. H. W. Co., 1 Saw. 685; Preston v. Walsh, 10 Fed. R. 315; Reynolds v. Iron S. Min. Co., 33 Fed. R. 354; Klein v. Fleetford, 35 Fed. R. 98. It has been said that, in case of the death of the judge who made the order, the motion to dissolve it should

21 Dalglish v. Jarvie, 2 Macn. & G. be made before two judges. West

231.

erly Waterworks v. Town of West

22 Florence S. M. Co. v. Grover & erly, 77 Fed. R. 783.

26

affirmed upon appeal. After an injunction has been dissolved, if evidence subsequently taken shows that it was properly issued, it may be issued anew. The dissolution of an ex parte injunction on account of a suppression of material facts does not preclude the plaintiff from applying for another injunction on the merits.28

An injunction may also be dissolved if the plaintiff is guilty of gross and inexcusable delay in taking testimony or in bringing the cause to a hearing; 29 and in general if from a change of circumstances its continuance would no longer serve any useful purpose. The subsequent passage of an act of Congress legalizing a structure which has been enjoined as a nuisance is a reason for the dissolution of an injunction. It has been held that an injunction staying proceedings at law against a bankrupt is dissolved ipso facto by his discharge; but remains unaffected by his delay in applying for his discharge. It has been held that at the expiration of a patent the court will dissolve an injunction against its infringement, and leave the complainant no remedy except his claim for damages against the subsequent sale and use of articles manufactured while the patent was alive in infringement of the patent. An injunc

26 Edison El. L. Co. v. U. S. El. L. Co. (C. C. A.), 59 Fed. R. 501; Andrews v. National F. & P. Works, 61 Fed. R. 782, 790; s. c., 10 C. C. A. 60, 68; s. c., 24 U. S. App. 81. Cf. Standard El. Co. v. Crane El. Co. (C. C. A.), 76 Fed. R. 767, 794. It has been said that a Circuit Court has no power to modify or dissolve a perpetual injunction contained in an interlocutory decree which has been affirmed upon appeal. Bissell C. S. Co. v. Goshen S. Co., 72 Fed. R. 545. It is the safer practice for the defendant to obtain a clause in the order of affirmance granting leave to the Circuit Court to modify the injunction order. Hadden v. Dooley (C. C. A.), 74 Fed. R. 429.

34

33

29 Read v. Consequa, 4 Wash. C. C. 174; Bradley v. Reed, 12 Pitts L. J. 65; Schermerhorn v. L'Espenasse, 2 Dall. 360; In the Matter of Schwarz, 14 Fed. R. 787.

30 In re Jackson, 9 Fed. R. 493; Re Pitts, 9 Fed. R. 542.

31 Baird v. Shore L. Ry. Co., 6 Blatchf. 461; Hadden v. Dooley (C. C. A.), 74 Fed. R. 429. It has been said that a modification of the order will usually be refused when its effect would be to change the position of the property affected by the suit. Ulman v. Ritter, 72 Fed. R. 1000. 32 In re Thomas, 3 N. B. R. 7. 33 In re Schwarz, 14 Fed. R. 787, 789. 34 Westinghouse v. Carpenter, 43 Fed. R. 894, Miller and Love, JJ.;

27 Tucker v. Carpenter, Hempst. Am. C. Ry. Co. v. Chicago C. Ry. Co., 440. 41 Fed. R. 522. But see Am. D. R. B.

28 Fitch v. Rochfort, 18 L. J. Ch. Co. v. Rutland M. Co., 2 Fed. R. 356; 458; Kerr on Inj. 564.

supra, SS 11, 216.

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