fined to an injunction: Larue v. Friedman, 49 Cal. 278.

Irreparable injury following from the mere passage of an ordinance void on its face will warrant the interposition of equity to prevent its attempted enforcement: S. V. W. W. v. Bertlett, 63 Cal. 245.

Discharge of débris into navigable streams is a nuisance that will be enjoined: Woodruff v. North Bloomfield Mining Co., 9 Saw. 441; People v. Gold Run Mining Co., 66 Cal. 138. See these cases for elaborate discussions of the questions involved.

Delay. The party must not be guilty of improper delay in applying for an injunction: Long v. Cross, 5 Jones Eq. 323. As to whether there is any laches must be determined by the facts: Binney's Case, 2 Bland, 99. Discretion of court. A party cannot demand an injunction as a matter of right. Granting and continuing injunctions rests very much in the discretion of the court, to be governed by the nature of the case: Hicks v. Michael, 15 Cal. 107; White v. Nunan, 60 Id. 406; Gower v. Andrew, 59 Id. 119; Goldstein v. Kelly, 51 Id. 301; Hine v. Stephens, 33 Conn. 497; Society v. Davis, 16 Abb. Pr., N. S., 373; but this is not an arbitrary discretion, but is to be exercised in accordance with the rules of law and equity and without abuse: Hobart v. Ford, 6 Nev. 77; Ex parte Hays, 26 Ark. 510; according to the exigencies of each case: Ollendorff v. Black, 1 Eng. L. & Eq. 114. When, therefore, all the equities of the complaint are denied by the affidavits on the part of the defense, it is not an abuse of discretion to refuse to grant a temporary injunction: Kohler v. Los Angeles, 39 Cal. 510. So, also, it is largely discretionary with the court, on the coming in of the answer, to modify or dissolve a preliminary injunction, and the action of the court will not be reversed on appeal except for palpable error or abuse of discretion: Fowler v. Heimroth, 1 West Coast Rep. 484; Efford v. S. P. R. R. Co., 52 Cal. 277; Coolot v. C. P. R. R. Co., 52 Id. 65; Patterson v. Supervisors, 50 Id. 344. Cases of palpable error are, however, excepted, and the rule itself is one which applies more especially to preliminary injunctions: Richard v. Dower, 64 Id. 62. But the supreme court will reverse where an injunction is refused in a case in which it

should have been granted; as where Oct. 11, 1862, an agent uses the information which $407. he obtains as such to the prejudice of his employer and to the advantage of himself: Gower v. Andrew, 59 Id. 119.

Cloud on title. - The execution of a document will not be restrained if it would not, when executed, be a cloud on plaintiff's title. Cases of a patent: Taylor v. Underhill, 40 Cal. 471; a deed on a tax sale: Burr v. Hunt, 18 Id. 307; a sheriff's deed: Pixley v. Huggins, 15 Id. 128; Goldstein v. Kelly, 51 Id. 301; Schuyler v. Boughton, 2 West Coast Rep. 899. If a cloud will be created by an execution sale and sheriff's deed, it will be enjoined: Hall v. Theisen, 61 Cal. 524, 526; White v. Nunan, 60 Id. 406; Vogler v. Montgomery, 54 Mo. 578. A sale for taxes will not be restrained if obviously void on the face of the proceedings: Bucknell v. Story, 36 Id. 70; Houghton v. Austin, 47 Ïd. 647; N. P. R. R. Co. v. Carland, 2 West Coast Rep. 326 (Mont.).

Waste. An injunction to stay waste is now granted almost as a matter of course: Markham v. Howell, 38 Ga. 508; and so threats to commit waste authorize an injunction: London v. Warfield, 5 J. J. Marsh. 196. But mere apprehension that waste will be committed is not sufficient: Hanson v. Gardiner, 7 Ves. 307. Excavating and working a mine, cutting timber therefor, by one tenant in common, is not waste which can be restrained by injunction: McCord v. Oakland Quicksilver Mining Co., 64 Cal. 134, a valuable decision. But an entry upon land and digging up and removing the fruit trees thereon is an injury to the inheritance in the nature of waste, which courts of equity will enjoin: Silva v. Garcia, 59 Cal. 591; Hicks v. Michael, 15 Cal. 115; Merced Mining Co. v. Tremont, 7 Id. 319; More v. Massini, 32 Id. 590. Tearing down or destroying demised premises is waste which the landlord may restrain: Davenport v. Magoon, 13 Or. 3. In an action to restrain the commission of waste, it must appear that plaintiff is entitled to the reversion; and in an action to restrain a tenant from removing buildings erected by him, it must be shown that the security for the rent will be left inadequate: Perrine v. Marsden, 34 Cal. 15; Buckout v. Swift, 27 Id. 433.

Trespass.-Courts of equity at first

refused to enjoin trespass, and the courts yet decline in most cases to do so; but there are exceptional cases, where equity will interpose, but a strong case must be had. It will in terpose for the purpose of quieting a possession, or preventing a multiplicity of actions, or where the value of inheritance is put in jeopardy, or where irreparable mischief is threatened in relation to mines, quarries, or woodland, whether the same result from the nature of the injury itself or from the insolvency of the party committing it. Mining and taking ores, etc.: Merced Mining Co. v. Fremont, 7 Cal. 320; S. C., 68 Am. Dec. 262; Moore v. Massini, 32 Cal. 592; cutting trees: Buckalew v. Estell, 5 Id. 108; Douglass v. Mayor of Placerville, 18 Id. 643; cutting grain: Corcoran v. Doll, 35 Id. 476; West v. Smith, 52 Id. 322; generally: Smith v. Gardner, 13 Or. 221; More v. Ord, 15 Cal. 206; Tomlinson v. Rubio, 16 Id. 206; Brennan v. Gaston, 17 Id. 373; Hicks v. Compton, 18 Id. 209; Leach v. Day, 27 Id. 645; West v. Walker, 3 N. J. Eq. 279; Van Winkle v. Curtis, 2 Id. 422; Kerlin v. West, 3 Id. 449. But to justify the relief the title must be clearly in the plaintiff or admitted: Gause v. Perkins, 3 Jones, 177. An action at law cannot be maintained for trespass when plaintiff is totally disseised, and defendant is in adverse possession: Raffetto v. Fiori, 50 Cal. 363; Felton v. Justice, 51 Id. 529. A fortiori in such a case a court of equity will not intervene to restrain the commission of threatened trespasses. In an action to enjoin future trespasses upon land, the court should limit the order to plaintiff's land: Moore v. Massini, 43 Id. 389. An injunction should be granted to restrain an adjoining owner from cutting down a lot by grading so as to permanently injure the premises: Price v. Knott, 8 Or. 438. Costs cannot be recovered by the plaintiff when the court finds the defendant not guilty of the trespasses charged: Lawrence v. Getchell, 3 West Coast Rep. 619. Repeated trespasses are not of themselves sufficient to justify the interference by injunction; complainant should allege insolvency of defendant, or irreparable injury, or inadequacy of money compensation: Mech. Foundry v. Ryall, 62 Cal. 416. The solvency of the defendant, who was about to construct a tunnel through plaintiff's land, thereby

causing irreparable injury, does not give any greater right to commit the trespass; the case belongs to the class in which no allegation of insolvency is necessary: Richards v. Dower, 64 Id. 62.

An action to restrain the continuance or repetition of a trespass of a character to produce irreparable injury and for damages already suffered is an equitable action, and the issues of fact raised by the pleadings should be tried by the court, unless the court sees fit to submit any or all of them to a jury: McLaughlin v. Del Re, 64 Cal. 472.

Taxes. In all cases involving simply the question of taxation, the issue is strictly one at common law, and courts of equity can take no cognizance thereof: Minturn v. Hays, 2 Cal. 593. There must be some additional circumstance bringing the case within the jurisdiction of equity, as that the result would be irreparable injury, multiplicity of suits, or a cloud upon title: Dows v. Chicago, 11 Wall. 108; Heywood v. Buffalo, 14 N. Y. 534; Railroad Tax Cases, 92 U. S. 575. A tax-payer cannot enjoin the collection of county taxes on the ground that he has, in former years, paid county taxes on his property illegally assessed and collected: Fremont v. Early, 11 Cal. 361. Nor when it does not appear that the complainant would sustain an irreparable injury, or the sale would cast a cloud on his title: Dean v. Davis, 51 Id. 406. A tax-payer cannot enjoin the circulation of municipal bonds void in the hands of a bona fide holder: McCoy v. Briant, 53 Id. 248. A property holder cannot restrain the performance of a ministerial duty cast by law upon supervisors merely upon the ground that the effect might be, at some future time, to subject his property to taxation: Patterson v. Yuba Co., 13 Id. 175. A person seeking to enjoin the collection of a tax must show that there is error, to his prejudice, to be corrected in the list. A board not meeting as required by law, or the fact that no notice of their meeting has been given, is not sufficient: Cowell v. Doub, 12 Id. 273; and the injury resulting to the owner from the collection must be irreparable: Ritter v. Patch, 12 Id. 298; Berri v. Patch, 12 Id. 299. So where part of the lands in a levee district subject to assessment are omitted,

collection of the assessment will be restrained: Levee Dist. No. 1 v. Huber, 57 Id. 41; Hoke v. Perdue, 62 Id. 545. A court of equity might perhaps restrain a sale for taxes if it appeared that the enforcement of the tax would lead to a multiplicity of suits: S. & L. Society v. Austin, 46 Id. 416; Dows v. Chicago, 11 Wall. 110; but the supreme court expressed a strong opinion against the propriety of issuing injunctions to restrain the collection of taxes, in C. P. R. R. Co. v. Corcoran, 48 Cal. 65. Where, in an action to enforce a lien on lands for delinquent taxes, there was no service of summons, and no appearance, and the court commissioner draughted the decree reciting that the summons had been served, and the judge, deceived by the false recital, signed it, and at the sheriff's sale, under the decree, the court commissioner became the purchaser, and obtained a sheriff's deed, the court restrained the purchaser from setting up the judgment as an estoppel: Martin v. Parsons, 49 Id. 94; sce Barnsley v. Powell, 1 Ves. Sr. 119, 285; McMillan v. Reynolds, 11 Cal. 372; Galatian v. Erwin, Hopk. Ch. 48; Dobson v. Pierce, 12 N. Y. 164; Bridgeport Bank v. Eldridge, 28 Conn. 556; Murray v. Dake, 46 Cal. 645.

A sale for taxes obviously void on the face of the proceedings will not be restrained: Bucknell v. Story, 36 Cal. 70; Houghton v. Austin, 47 Id.

647.

And the complaint which seeks the injunction must show that the sale will create a cloud on the title: Hall v. Theisen, 61 Id. 524; S. C., 61 Id. 526. As to the duty to allege and show that all taxes properly due have been paid before an injunction will be granted to restrain a sale, see Gillette v. Denver, 4 West Coast Rep. 206 (U. S. C. C.); Brown v. Denver, 4 Id. 210 (U. S. C. C.).

Creditors' suits. - An execution creditor may have an injunction to prevent a debtor and his transferees from disposing of property to his detriment: See Edgar v. Clevenger, 2 N. J. Eq. 258. In a suit to set aside a conveyance, where an injunction is asked, the complaint must aver that conveyance, etc., was made with intent to hinder, delay, or defraud creditors. The debtor's insolvency is evidence of this: Hager v. Shindler, 29 Cal. 59; and it has been said that

insolvency must be averred: Harris Oct. 11, 1862, v. Taylor, 15 Id. 349. 407.

Trade-mark, enjoining use of: See post, in Miscellaneous Laws.

Restraining actions at law: See ante, § 381 [377].

Miscellaneous. Where an injunction restrains defendant, "his agents and servants," but the sheriff is not a formal party, he is nevertheless bound to obey on being notified in writing of the order: Buffondeau v. Edmondson, 17 Cal. 440; S. C., 79 Am. Dec. 139.

If the plaintiff is entitled to an injunction before a first trial, and it is ordered, and the cause is afterwards tried and a new trial granted, the plaintiff is still entitled to retain his injunction till trial. The mere granting of the new trial does not place him in a position different from that in which he was prior to the first trial: Hess v. Winder, 34 Cal. 272. Courts of equity have wisely refused to lay down any limits to their right to grant injunctions. The right must be exercised with due caution, and in proper cases only: Merced Mining Co. v. Fremont, 7 Id. 325; S. C., 68 Am. Dec. 262. Where the complainant's rights are certain, the court cannot consider the inconvenience which will result to the defendant: Woodruff v. North Bloomfield M. Co., 9 Saw. 441. After judgment at law. After verdict and neglect to apply for a new trial within the time appointed, a court of equity will not entertain a bill for an injunction on the ground that the original demand was unconscientious: Phelps v. Peabody, 7 Cal. 53; nor where the party might have applied to the court to set aside the judgment or verdict, and has not done so: Borland v. Thornton, 12 Id. 440; nor where he moves for a new trial and fails: Collins v. Butler, 14 Id. 223; nor in any case where the remedy by motion in the other court is ample: Imlay v. Carpentier, 14 Id. 173; Aldrich v. Stephens, 49 Id. 676; or the facts were known and might have been raised as a defense: Beaudry v. Felch, 47 Id. 183. So equity will not restrain proceedings under a judg ment rendered in an action prosecuted by a plaintiff, the initial of whose christian name, and not the whole name, was given: Boyd v. Platner, 1 West Coast Rep. 798. Courts of equity only interpose on equitable grounds to do justice where, from