§ 8. An injunction to stay waste, pending an ejectment suit, will not be continued, where the defendant is in possession claiming adversely, especially if there has been needless delay in the prosecution of the ejectment.1

9. "In cases of waste, the account goes merely upon the injunction." "The right to an account for waste already committed is incidental to the right to file a bill to prevent further waste, though no bill will lie merely for an account for waste done, because the plaintiff has an ample remedy at law." So equity may forbid by injunction the removal of what has been obtained by past waste. So, although equity will not sustain a bill filed solely to prevent removal of timber wrongfully cut, or for an account of past waste, there being a complete remedy at law; yet when the bill is also filed to prevent future waste, to avoid multiplicity of suits, the court will allow an account of and satisfaction for what has been done, and, to prevent irreparable mischief, will enjoin removal of the timber."

§ 10. A party praying for an injunction against a lessee for waste, alleging himself to be a purchaser from the lessor by deed, must exhibit his deed, and prove its execution, in order to obtain an injunction."

§ 11. A bill for a special injunction, to restrain a party in possession, and claiming adversely, from cutting timber, must not only set forth that the threatened injury would be irreparable, but must also state how it would be so, that the court may see clearly that such would be the result.'(a)

'Higgins v. Woodward, Hopk. 342.

2 Per Lord Eldon, Grierson v.

Eyre, 9 Ves. 346.

3 Per Bell, C. J., Dennett v. Den

nett, 43 N. H. 503.

5 Spear v. Cutter, 5 Barb. 486.

6 Loudon v. Warfield, 5 J. J. Marsh. 196.

7 Thompson v. Williams, 1 Jones Eq. 176; Bogey v. Shute, 1 Jones

• United States v. Parrott, 1 McAll. Eq. 180. C. C. 271.

(a) A bill being filed for an injunction to restrain waste, pending an action of ejectment brought to try the title, the ejectment being success

ful, the injunction submitted to, and the defendant having quietly permitted the plaintiff, after a verdict at law, to sell the estate, and not alleging that he intended to take any steps to disturb the verdict at law, and the defendant being a pauper, and having recently changed his solicitor; it was held, that the special circumstances took the case out of the general rule, on a motion to dismiss for want of prosecution. Pinfold v. Pinfold, 15 Eng. Law and Eq. 10.

CHAPTER XII.

USURY.

1. USURY is sometimes set up as a ground of injunction.1 Thus a creditor is not allowed to make it a condition of a loan, that he shall receive a compensation for his services in procuring the money; and if such compensation is included in the security given for the loan, the court will, on the debtor's paying into court the sum reported to be due by a master, after deducting the sum charged for such services, grant an injunction to stay proceedings upon a mortgage by which the loan is secured. The court remarks: "This court is always jealous of collateral demands and advantages claimed by a creditor as a condition of the loan of money. The actual expenses of the writings ought to be paid; but to allow the creditor to make it a condition of the loan, that he shall receive a compensation for his services, in procuring the money, and to include that compensation in the security, is against sound principle, and tends most manifestly to oppression and usury, if it is not usury in itself."3

§ 2. In cases of concurrent jurisdiction, a preliminary injunction to restrain a suit at law upon a usurious contract will not be granted, unless the plaintiff shows that he would be deprived of some legal or equitable right, if the adverse party should be permitted to proceed. Thus the court will not stay a suit at law upon a note not negotiable, on the ground of usury, of which the lender is the only witness; he having, under the statute, a complete defence, by exam

1 See Spann v. Sterns, 18 Tex. 556. 2 Hine v. Handy, 1 John, Ch. 6.

3 Per Kent, Chanc. Hine v. Handy, 1 John. Ch. 6.

Mitchell v. Oakley, 7 Paige, 68.

ining the plaintiff in the suit. Nor will an injunction be granted on the ground of usury, which the party neglected to set up after notice.

' Perrin v. Striker, 7 Paige, 598.

2 Chinn v. Mitchell, 2 Met. Ky. 92.

CHAPTER XIII.

POSSESSION AND REMOVAL.

1. EQUITY sometimes interposes by injunction to give. possession of property. It is said, "Courts of equity interfere and effectuate their own decrees in many cases by injunctions, in the nature of a judicial writ or execution for posses sion of the property in controversy; as, for example, by injunctions to yield up, deliver, quiet, or continue the pos session, followed up by a writ of assistance. Injunctions of this sort are older than the time of Lord Bacon, since, in his ordinances, they are treated as a well-known process. Indeed, they have been distinctly traced back to the reign of Elizabeth and Edward the Sixth, and even of Henry the Eighth."(a) Thus where a court of equity decrees a conveyance, and the defendant refuses to obey the decree, a writ of injunction, to compel delivery of the possession, may be issued, and, if that be not obeyed, an habere facias possessionem.2

§ 1 a. In a case often cited, the plaintiff claimed, as treasure trove upon his manor, an ancient silver altar-piece, 1 2 Story Eq. 268, § 959. 2 Garretson v. Coale, 1 Har. & J. 370.

(a) Where a complainant obtains an injunction to restrain the sale of property, which remains in his possession, he giving bond and security to have it forthcoming to answer the decree of the court, and the bill is dismissed upon appeal, the defendant cannot obtain possession of the property upon application by petition to the chancery court, by virtue of a writ of restitution. He must resort to his remedy upon the injunction bond, or to an original suit to obtain possession. In practice, the writ of restitution appears to be unknown in the chancery court. Starke v. Lewis, 23 Miss. 151.