the plaintiff's right to an injunction.' And the amount of actual injury, where a right is involved, is held not to be material. Thus the defendants, owners of a mill upon a canal of the plaintiffs, were authorized by the canal charter to draw water for the purpose of condensing steam only. The water being used for other purposes, the plaintiffs brought an action and recovered nominal damages. The defendants attempted, unsuccessfully, to arrest the judgment, which was affirmed on error. The defendants still continuing to use the water as before, the plaintiffs apply for an injunction. The answer relied upon acquiescence on the part of the plaintiffs. Held, but for this defence an injunction should issue.2 § 15. In the case of Campbell v. Scott,3 Sir L. Shadwell, V. Chanc., remarked: "The only question is whether there has been such a damnum as will justify the party in applying to the court, because injuria there clearly has been. What has been done is against the right of the plaintiff. Now, in my opinion, he is the person best able to judge of that himself; and if the court does clearly see that there has been anything done which tends to an injury, I cannot but think that the safest rule is to follow the legal right and grant the injunction." § 16. In general, clear legal or equitable rights, free from reasonable doubt, must be satisfactorily shown, to authorize a preliminary injunction." "It is an appeal to the extraordinary power of the court, and the plaintiffs are bound to make out a case showing a clear necessity for its exercise." It is "the duty of the court rather to protect acknowledged rights than to establish new and doubtful ones." At least, Tuolumne, &c. v. Chapman, 8 Cal. 392. 2 The Rochdale, &c. v. King, 2 Sim. N. S. 78; M'Cord v. Iker, 12 Ohio, 387. 3 11 Sim. 39. Snowden v. Noah, Hopk. 347; Steamboat, &c. v. Livingston, 3 Cow. 713. 5 Per Johnson, J., Auburn, &c. v. Douglass, 12 Barb. 555. Per Sargent, J., Burnham v. Kempton, 44 N. H. 92; Booth v. 4 Scott v. Burton, 2 Ashm. 312; Driscoll, 20 Conn. 555. an injunction requires a strong primâ facie case of title.' Thus an injunction will not be granted to restrain the prosecution of a public work before the coming in of the answer, where it does not clearly appear that the complainant's rights have been violated.2 17. But it is also held, that the granting and continuing of injunctions rest in the discretion of the court, to be governed by the nature of the case. (See § 13.) "It is not usual, nor ordinarily is it proper, to inquire into the right of the court to grant relief, upon an application for an injunction; still less to refuse an injunction when the question. of jurisdiction is doubtful and when refusing it may produce injury to the party applying." (But the general rule is modified by the express provisions of the New York Code.) And, on the other hand, in the absence of special circumstances, equity will not interfere to control or limit the exercise of a discretionary power. § 18. It is said, that an application to a court of chancery, for the exercise of its prohibitory powers or restrictive energies, must come recommended by the dictates of conscience, and be sanctioned by the clearest principles of justice. And an injunction requested upon principles of equity and justice should never be refused in the first instance. If there be no equity in the bill, there can be no injunction. Either want of an equitable title, or the establishment of a legal title, is a sufficient reason for denying equitable relief." And the same general principle is further expressed in the propositions, that an action for damages is a matter of right, but the Elmslie Whart. 424. 3 Roberts v. Delaware, &c., 4 v. Anderson, 2 John. 5 Kekewich v. Marker, 5 Eng. L. and Eq. 129. Maryland, &c. v. Schroeder, 8 Gill & J. 93; Clayton v. Yarrington, Ch. 202: Tucker v. Carpenter, 1 33 Barb. 144. Hemp. 440; Burchard v. Boyce, 21 Geo. 6; Jessel v. Chaplin, 37 Eng. Per Mullin, J., Ballard v. Fuller, 32 Barb. 68. 7 Lee v. Montgomery, Walker, 109. 8 Smith v. Lard, 28 Geo. 585. 9 McAffee v. Lynch, 26 Miss. 257. an injunction is of grace.' (See § 19.) That the right to an injunction is not ex debito justitiæ, but the application is addressed to the sound conscience of the Chancellor acting upon all the circumstances belonging to each particular case.2 That the Chancellor has the right to require a full and candid disclosure of all the facts, and, if there appears in the proceedings sufficient to show that this has not been made, he may properly refuse to grant an injunction. And that the process of injunction should be applied with the utmost caution. The interference rests on the principle of a clear and certain right to the enjoyment of the subject in question, and an injurious interruption of that right, which on just and equitable grounds ought to be prevented. So an injunction is a secondary process (except it be for the prevention of torts), and must be asked in aid of some primary equity, which must be disclosed in the same bill that prays it." (See § 2.) § 19. In conformity with this general requisition of equity in the case presented, a bill of injunction may be dismissed. on motion, without an answer, for the want of equity on its face. So where the answer denies all the equity, if any, of the bill, a preliminary injunction should not be granted." A familiar application of this principle is the case of usury. Thus, in New York, on a bill filed before the act of the 15th of May, 1837, to prevent usury, went into operation, to restrain a suit at law upon a usurious contract, a preliminary injunction was refused, the plaintiff not having offered to pay the amount equitably due upon the contract, with lawful interest. And it is held that the equity relied upon must relate immediately to the subject of complaint. Thus it is no ground for restraining a railroad from the completion of their works, that they have violated a contract connected 1 Grey v. Ohio, &c., 1 Grant, 412. 4 Morse v. Machias, &c., 42 Maine, 119. 5 Washington v. Emery, 4 Jones Eq. 29; Patterson v. Miller, ib. 451. Richardson v. Prevo, Breese, 167. 7 Crandall v. Woods, 6 Cal. 449. 8 Mitchell v. Oakley, 7 Paige, 68; Rogers v. Rathbun, 1 John. Ch. 367. therewith. So, that an injunction will be granted only to prevent the violation of a positive right. (See § 18.) Thus, where commissioners were appointed by statute to ascertain who were entitled under a preemption law, the court refused to grant an injunction at the instance of one who claimed to be injured by their decision, as it was mere matter of favor, and not of right. So an injunction will not be granted, in favor of a party claiming to exercise a right granted by an act of the legislature clearly unconstitutional. And it has been held in Pennsylvania, that courts have chancery jurisdiction to enjoin such acts only as are contrary to law, and not merely contrary to equity. But in a later case it is held, that, in Pennsylvania, equity is so much a part of the law, that the word law often means both, or either. Hence acts contrary to equity, as well as those contrary to law, may be enjoined. So where a statute has made provision for all the circumstances of a particular case, no relief can be afforded by injunction, although the statute may conflict with the notions of natural justice and equity entertained by a court of chancery." It is held that chancery will refuse an injunction, if the party propose to do equity in the presence of the court. $20. The equity of a claim, which justifies the summary remedy of injunction, necessarily precludes fault or wrong on the part of the plaintiff himself. Thus, upon an application for injunction against the use of a trade-mark, it was objected that the plaintiff falsely and fraudulently represented the article was protected by a patent; and Wood, V. C., remarked: "It is very material that persons coming here for injunctions should be very careful what representations they have made. They must satisfy the court that in their own that representations there has been nothing of fraud." And, in a case relating to the construction of a railroad, the court remark: "The case was one for compensation at law, and not to be remedied by injunction to enforce abatement of the road as a nuisance, or the perpetual restraint of its use. It was constructed under a contract with a stipulation to pay damages for consequent injury, and with a tribunal agreed upon for their assessment. To permit the party to construct their road under an amicable, contract, after a solicited withdrawal of compulsory proceedings, which would in all probability have resulted in giving the right, subject only to the condition of the payment of damages, and then ask to destroy the whole because of a non-compliance in some particulars, is a course so contrary to equity as to be a vain effort." § 21. And the same consideration of equity is sometimes so applied as to include the rights and interests of third persons. Thus, in a case relating to a water-course, it was said: "In cases of such a nature as this, (the court) must have regard not only to the dry strict rights of the plaintiff and defendant, but also to the surrounding circumstances; to the rights or interests of other persons, which may be more or less involved."2 § 21 a. The equity of the plaintiff's case may consist in the mode adopted by the defendant of exercising a certain. right, rather than in the want of such a right itself; involving the necessity of this summary interference to reconcile the conflicting claims of the respective parties. Thus, where the defendant was entitled to a water-power supplied by a waste weir from a public canal, in a bill for injunction brought by the canal company, the court remark: "The defendants claim. that during the time that business is suspended on the canal they have a right to have the water flow in its original channel; but they have not taken the right method of asserting Per Thompson, J., Pusey v. Wright, 31 Penn. 395-6. 2 Wood v. Sutcliffe, 2 Sim. N. S. 164. |