37 35 35 tion is not dissolved by an amendment of the bill, unless the amendment substantially changes the cause of action, or abandons the prayer for the injunction. But it is customary to include in the order allowing an amendment a direction that it be "without prejudice to the injunction." The allowance of a demurrer to the whole bill puts an end to an injunction which had previously been obtained; 38 but leave will usually be given to amend without prejudice to the injunction, when the demurrer is allowed on account of a defect in form, such as multifariousness." "The allowance of a plea does not dissolve an injunction. There may be some equity shown to continue it. An order for its dissolution must be obtained."" An injunction is not dissolved by an abatement or by a defect in the suit, but the defendant must, if he wishes to be freed from the restraint thereby imposed, move that the plaintiff or his representatives be required to revive or take such other steps as may be necessary within a limited time, and that if he fail to do so the injunction may be dissolved." 39 § 236. The imposition of terms upon the issue, denial, dissolution, or continuance of an injunction.- As the issue of a special injunction is in its discretion, the court may impose terms upon the plaintiff or defendant when granting or refusing the issue, dissolution, or continuance of the same. The usual terms are the giving of a bond or undertaking with good security to indemnify the other party against all loss that may result from the issue or withholding of the injunction. These undertakings were invented by Vice-Chancellor Knight Bruce, and originally they were acquired only upon ex parte injunc 35 Reed v. Consequa, 4 Wash. C. C. 174; Warburton v. L. & B. Ry. Co., 2 Beav. 253. But see Sharp v. Ashton, 3 V. & B. 144. 40 Lehigh Z. & I. Co. v. N. J. Z & I. Co., 43 Fed. R. 545, 550. 41 Kerr on Inj. 566; Philips v. Langhorn, Dick. 148; Ferrand v. Hamer, 36 Atty. Gen. v. Marsh, 16 Sim. 572; 4 M. & C. 143. Kerr on Inj. 566. 42 Chowick v. Dimes, 3 Beav. 200; 37 Westcott v. Mulvane, 58 Fed. R. Lee v. Lee, 1 Hare, 622; Chester v. 305. 38 Schneider v. Lizardi, 9 Beav. 461, 468; Kerr on Inj. 565. 39 Rawlings v. Lambert, 1 J. & H. 458; Kerr on Inj. 565, 566; Lehigh Z. & I. Co. v. N. J. Z. & L. Co., 43 Fed. R. 545, 550. Life Ass'n of Am., 4 Fed. R. 487. 1 § 237. Russell v. Farley, 105 U. S. 2 Russell v. Farley, 105 U. S. 433; tions, being designed to protect the court as well as the defendant from improper ex parte applications. Later the practice was extended to interlocutory injunctions granted upon notice to the defendant, first in special cases, then generally; and now they are usually inserted as a matter of course in England and in most of the United States, although in some of the circuits the Federal judges are accustomed to grant injunctions without such a requirement. The reason for the requirement is that upon an interlocutory application but a short time is allowed for the preparation of the case, and it is impossible for the court to obtain a complete knowledge of the facts. Moreover these applications are heard upon affidavits, so that it is impossible to say which side will ultimately turn out to be right. Consequently the court reserves the right to indemnify the defendant in case it should have been induced, upon an incomplete state of facts, to make a wrong order. It is not usual to require security from the United States when a preliminary injunction is granted at their request in a suit in which they are plaintiffs. It has been held that, where there is proof that the defendant has been guilty of bad faith in connection with the subject of the suit, no bond should be required. In some instances the court has withheld an injunction to restrain an infringement of a patent or copyright, upon the defendant's merely undertaking to keep an account of the sales made by him during the pendency of the suit; and in England in other cases upon his giving undertaking to abide by the farther order of the court. An injunction will never be issued to restrain the collection of State taxes, unless the plaintiff first pays "what is conceded to be due, or what can be seen to be due on the face of the bill, or be shown by affidavit, whether conceded or not." It has been held at circuit that when the 3 Smith v. Day, 21 Ch. D. 421. See Lowenfeld v. Curtis, 72 Fed. R. 105. 4 U. S. v. Jellico, M. C. & C. Co., 43 Fed. R. 898. 6 (Eng.) Ry. Cas. 436; Jones v. G. W. Ry. Co., 1 (Eng.) Ry. Cas. 684. 8 State Railroad Tax Cases, 92 U. S. 575, 617; National Bank v. Kimball, 5 Pasteur C. F. Co. v. Funk, 52 Fed. 103 U. S. 732; Albuquerque Nat. R. 146, 147. 6 Furbush v. Bradford, 1 Fish. Pat. Cas. 317; McCrary v. Penn. C. Co., 5 Fed. R. 367; Kerr on Inj. 29, 30. 7 Atty. Gen. v. M. & L. Ry. Co., 1 Bank v. Perea, 147 U. S. 87; Parmley v. Railroad Cos., 3 Dill. 25; Huntington v. Palmer, 8 Fed. R. 449; supra, § 84. court upon the final hearing dissolves an injunction previously granted, or grants an injunction previously denied upon the giving of a bond or undertaking, the successful party can have his damages assessed and the bond or undertaking enforced by the court in the same suit, without being required to bring a new action at law. Where the amount of the recovery is uncertain, the sureties should have notice of the application to enforce the bond.10 It has been held that a Circuit Court has jurisdiction of an action at law upon the bond where it exceeds $2,000, irrespective of the citizenship of the parties, because the suit arises under the laws of the United States."1 The court has power, when dissolving the injunction, to absolve the bondsmen from liability." It is unsettled in England whether the undertaking can be enforced upon the dissolution of the injunction on the ground that the court erred as to the law. 13 Only direct and approximate damages can be recovered upon the bond; remote, conjectural and speculative damages are disallowed." It has been held by the Supreme Court that the 9 Lea v. Deakin, 13 Fed. R. 514; Coosaw Min. Co. v. Farmers' Min. Co., 51 Fed. R. 107; Lamb v. Ewing (C. C. A.), 54 Fed. R. 269; supra, § 21. See also Russell v. Farley, 105 U. S. 433; Leslie v. Brown (C. C. A.), 90 Fed. R. 171; Deakin v. Stanton, 3 Fed. R. 435; Grundy v. Young, 2 Cranch, C. C. 114; Bentley v. Joslin, Hempst. 218; Moore v. Moore, 25 Beav. 8; Sugden v. Hull, 28 Beav. 263. Contra, Curtis, J., in Merryfield v. Jones, 2 Curt. 306. See also Bein v. Heath, 13 How. 168. 10 Coosaw M. Co. v. Carolina M. Co., 74 Fed. R. 860: Leslie v. Brown (C. C. A.), 90 Fed. R. 171. 11 Leslie v. Brown, 90 Fed. R. 171. 12 Russell v. Farley, 105 U. S. 433. Cf. Allen v. Jones, 79 Fed. R. 698. 13 Smith v. Day, 21 Ch. D. 421, 424, 426, 428, 429, 431. But see Novello v. James, 5 De G., M. & G. 876. 14 Smith v. Day, 21 Ch. D. 421; Chicago C. R. Co. v. Howison, 86 Ill. 215; Hotchkiss v. Platt, 8 Hun (N. Y.), 46; Livingston v. Exum, 19 S. C. 223. Where the injunction forbade interference with the possession of personal property, it was held that the defendant upon the dissolution could recover all damages caused by his delay in obtaining possession of the property, including any loss caused by a fall in the market price, if it had a market price, and could have been sold at once on the market for a sum nearly equal to its value, but not if it had no market price, and could not have been sold immediately for a sum "anything like its value;" and that the price which the defendant might have made by the use of the property in his business was too remote and speculative to be recovered. Lehman v. McQuown, 31 Fed. R. 138. It has been held that “an injunction bond in an action in the District Court of the United States for the District of Louisiana, conditioned that the obligors 'will well and truly pay the' obligee, 'defendant in said injunction, all such damages as he may recover against us, fees of counsel in procuring the dissolution of the injunction cannot be included in the damages upon the bond. This decision is, however, in conflict with the weight of authority in the United States. 16 The court might direct the insertion of a clause in the bond providing that counsel fees should be included in the damages. Where no security is given, the defendant has no remedy to recover damages caused by an injunction improperly issued, unless, perhaps, where facts will support an action for malicious prosecution." The surety cannot, pending an appeal from a decree for the defendant to the injunction suit, maintain a bill of quia timet to obtain indemnity from the principal before the bond has been paid or the amount of the liability upon the same has been adjudicated.18 § 237. Perpetual injunctions.- Perpetual injunctions can only be granted at the entry of a decree.' It is irregular to grant one upon affidavits. In patent, trade-mark and copyright cases, however, injunctions that are permanent until the expiration of the plaintiff's monopoly are often granted by an interlocutory decree which also directs a reference to a master for an accounting; but the court has the power to suspend the injunction until an appeal can be had. A perpetual injunction is either originally granted, or continued. They may in case it should be decided that the said writ of injunction was wrongfully issued,' which bond was made under an order of the court that the injunction be maintained on the complaining creditor's giving bond and security to save the parties harmless from the effects of said injunction,' is a sufficient compliance with the order of the court, and when construed with reference to the rule prevailing in the Federal courts (contrary to that prevailing in the State. courts of Louisiana), that without a bond and in the absence of malice no damages can be recovered in such case, means that the obligors will pay such damages as the obligee may recover against them in a suit on the bond itself, whether incurred before or after the giving of the bond." 206. Meyers v. Block, 120 U. S. 15 Oelrichs v. Spain, 15 Wall. 211. 16 See High on Inj., sec. 1685, and cases cited. 17 Scheck v. Kelly, 95 Fed. R. 941; City of St. Louis v. St. Louis Gaslight Co., 82 Mo. 354. 18 Am. B. & Tr. Co. v. Logansport & M. G. Co., 95 Fed. R. 49. 1 § 237. Daniell's Ch. Pr. (2d Am. ed.) 1903. 42. 2 Adams v. Crittenden, 17 Fed. R. 3 Rumford Chem. Works v. Hecker, 11 Off. Gaz. 330; Brown v. Deere, 6 Fed. R. 484; s. c., 2 McCrary, 425. 4 Barnard v. Gibson, 7 How. 650, 658; Potter v. Mack, 3 Fish. 428; Brown v. Deere, 6 Fed. R. 487; Munson v. Mayor, 19 Fed. R. 313. be granted originally in all cases in which temporary injunctions might have been granted, and also to restrain the setting up of outstanding terms when it would be inequitable to do so.3 In order to obtain a perpetual injunction, it is not necessary that a provisional injunction should have been asked for. For after the commencement of a suit asking to prevent an act upon the defendant's part, he is said to proceed at his peril, and if the court finally decides in favor of the plaintiff it may order him to undo the result of his acts since he first had notice of the suit. A perpetual injunction may be obtained in a case where a preliminary injunction has been asked for and refused, or obtained and dissolved. If, however, the plaintiff has not previously obtained a preliminary injunction, and at the hearing fails to make out a clear title, he usually will not be allowed to use the facts proved by him, as evidence of a prima facie case, entitling him then to a temporary injunction till he can establish his case beyond a doubt; unless indeed, the injunction sought be one that is never granted before a hearing.10 Perpetual injunctions may continue or extend and make perpetual preliminary injunctions at the hearing. This can only be done by inserting a direction to that effect in the decree." In order to support a decree for a perpetual injunction, it has been said that the court requires that there should be nothing like a doubt in the case.12 The granting of such an injunction is in the discretion of the court, and, like a provisional injunction, it may be allowed 13 or refused 14 5 Askew v. Poulterers' Co., 2 Ves. Sen. 89; Duke of Buckingham v. Duchess of Buckingham, 2 Eq. Cas. Abr. 527. 6 Daniell's Ch. Pr. (2d Am. ed.) 1900. See also Bailey v. Taylor, 1 R. & M. 73. 7 Charles River Bridge v. Warren Bridge, 6 Pick. (Mass.) 376; Wing v. Fairhaven, 8 Cush. (Mass.) 363; Winslow v. Nayson, 113 Mass. 411; Smith v. Day, L. R. 13 Ch. D. 651. 8 Daniell's Ch. Pr. (2d Am. ed.) 1900; Bailey v. Taylor, 1 R. & M. 73; Bacon v. Spottiswoode, 1 Beav. 382; Bacon v. Jones, 4 M. & C. 433; Tucker v. Carpenter, Hempst. 440. 9 upon terms. On account of 382; s. c. on appeal, sub nom. Bacon v. Jones, 4 M. & C. 433, 438; Daniell's Ch. Pr. (2d Am. ed.) 1901. 10 Daniell's Ch. Pr. (2d Am. ed.) 1901. See supra, § 226. 11 Daniell's Ch. Pr. (2d Am. ed.) 1902; Gardner v. Gardner, 87 N. Y. 14. 12 Whittingham v. Woler, 2 Swanst 428, n.; Troy & B. R. Co. v. Boston, H. T. & W. Ry. Co., 86 N. Y. 107; Daniell's Ch. Pr. (2d Am. ed.) 1900. 13 Southern Exp. Co. v. St. Louis, I. M. & S. Ry. Co., 10 Fed. R. 210; S. C., 10 Fed. R. 869. 14 McCrary v. Penn. Canal Co., 5 Fed. R. 367; Brown v. Deere, M. & 9 Bacon v. Spottiswoode, 1 Beav. Co., 6 Fed. R. 487. |