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tiff may be read as an affidavit in reply to the defendant's

answer.1

§ 59. Where an affidavit was filed, and intituled in a cause in which there were three defendants, and the name of one was afterwards struck out, and an injunction granted on the affidavit as originally made; held, the injunction should stand. In answer to the argument of counsel, the Vice-Chancellor said, that the perjury, if any, was committed at the moment when the affidavit was filed.2

§ 60. The question is, of course, a very important one, what courts have jurisdiction to enjoin the proceedings of other courts, and on the other hand the proceedings of what tribunals are liable to be thus summarily interrupted. In this country, the subject is involved in peculiar complication, by reason of the concurrent authority of the United States and State courts, and the conflict liable to arise among the courts of different States. (a) (See § 30.)

Peterson v. Matthis, 3 Jones

Eq. 31.
2 Hawes v. Bamford, 9 Sim. 653.

3 See Martin v. O'Brien, 34 Miss. 21.

(a) In New York, an application by a party or privy to a suit in the Court of Chancery, to stay such suit, must be directly to the court, in the matter of the suit, not to an officer out of court. Ellsworth v. Cook, 8 Paige, 643. But, in Mississippi, where the case was such that an order would have been granted, and the objection was not taken on the argument, the injunction was allowed to stand for such order. Mason v. Payne, Walk. Ch. 459. On the other hand, judges, or any one of them, of the Court of Appeals of Virginia, out of court, but not the court itself, are authorized to grant an injunction, which has been refused by the judge of the Superior Court of Chancery. Mayo v. Haines, 2 Munf. 423. It has been held that one judge of the Supreme Court of Pennsylvania has not power to grant an injunction in any case; it can only be done by the court when sitting in banc. Riley v. Ellmaker, 6 Whart. 545. But, in a recent case, motion being made in Philadelphia that the court order a motion for a preliminary injunction to be argued before the court in banc, it was held, that such motions belong

§60 a. Some early cases best illustrate the nature of the remedy by injunction, as involving the authority of different

courts.

properly to the judge at nisi prius, and the court will consent to hear them only when he regards them of such importance as to request it to sit with him for that purpose. Philadelphia, &c. v. Railway Co., 33 Penn. St. 82. Where a petition for leave to file a bill of review, under the act of 1795, c. 88, also praying an injunction, has been dismissed by the Court of Chancery, in Maryland, the Court of Appeals cannot grant the injunction, although the court below ought to have done so. Luckett v. White, 10 Gill & J. 480. In 1837, the Legislature of Maryland passed an act for laying out certain streets in Baltimore. If streets should be extended, certain owners of land should, in a certain court, be entitled to damages for one-half the bed of the street laid out in front of their land. In 1847, one of the streets was extended. The owners filed their bill, alleging that the damages, secured to them by act, had not been assessed to them, and praying an injunction against the collection of certain sums assessed on them as benefits, and for general relief. An injunction was granted. The answer of the mayor, &c., averred that the provisions of the act were specially brought to the attention of the jury, and deliberately considered by them; and, thereupon, the chancellor dissolved the injunction, on the ground that a court of equity has no authority to stay the proceedings on the judgment of the Baltimore City Court. Richardson v. Baltimore, 8 Gill, 433. The several Superior Courts of Chancery, in Virginia, have jurisdiction to grant injunctions upon judg ments at law rendered within their respective districts only. The place of the rendition of the judgment, and not the residence of the parties, determines the jurisdiction. Cocke v. Pellok, 1 H. & M. 499. In Texas, the judgment of a justice of the peace in a case in which he had no jurisdiction is a nullity, and may be perpetually enjoined; and it is immaterial in such case whether the application for injunction is within ninety days or not. McFaddin v. Spencer, 18 Tex. 440. Where judgment has been rendered in the District Court upon a cause of action within the probate jurisdiction of the County Court, the defendant should appeal; but, if he does not, he can have execution enjoined, for Courts of Mississippi have not jurisdiction to grant injunctions originatwant of jurisdiction. Cunningham v. Taylor, 20 Tex. 126. The Circuit ing, and to operate, beyond their respective districts. Montgomery v. Commercial, 1 S. & M. Ch. 632. In Tennessee an injunction bill is a personal action, within the meaning of the statute requiring such actions to be brought in the county where the defendant resides. Childress v. Perkins, Cooke, 87. A bill to enjoin a judgment at law may be brought

60 b. The defendant had obtained judgment in ejectment against the now plaintiff, and had execution awarded, but the under-sheriff refused to execute it; whereupon, by rule of court of the King's Bench, the under sheriff was ordered to attend, and for not attending an attachment was awarded against him. After all this proceeding, the defendant in the ejectment exhibits his bill in this court, and Emerton praying a dedimus an injunction was granted of course. I moved

in the county where the judgment was recovered, although the defendant may be found and served with process in another county. Newman v. Stuart, Cooke, 339. Where a court has jurisdiction only in case the amount in dispute exceeds $50, it has no jurisdiction to enjoin a judgment on account of an excess of $12 therein. Rent froe v. Dickinson, 1 Overton, 196. If courts of law and equity have concurrent jurisdiction, a failure to make the defence at law, if the defendant answer to the merits, will not oust the jurisdiction of chancery; but if the defence set up was purely legal, and in its nature unfit for equity jurisdiction, the defendant may insist upon the want of jurisdiction at the hearing, though he may not have demurred. Rice v. Railroad, &c., 7 Humph. 39. In Georgia, a court in one county may enjoin an action pending in that county, though the plaintiff in such action resides in another; although it cannot further grant relief. Key v. Rabison, 29 Geo. 34. An injunction will not lie against the justices of the inferior court, and the only remedy, by which a contract can be enforced against them, is mandamus. The Justices v. Croft, 18 Geo. 473. In California, one court cannot interfere in proceedings before another of concurrent jurisdiction. All proceedings to enjoin judgments must issue from the court having the control of such judgments. The rule is the same (78) in an equity suit, when a bill is brought, and other parties joined, not included in the action at law sought to be enjoined. The only case in which it will be allowed, is where the court, in which the action or proceeding is pending, is unable by reason of its jurisdiction to afford the relief sought. Where several fraudulent judgments are confessed in several courts, it would not be necessary for a creditor to sue in each. So where the provisions of the court require the action to be tried in a particular county, there would be an exception. Anthony v. Dunlap, 8 Cal. 26; Rickett v. Johnson, ib. 34; Revalk v. Kraemer, ib. 66; Chipman v. Hibbard, ib. 268; Phelan v. Smith, ib. 520; Gorham v. Toomey, 9 Cal. 77; Uhlfelder v. Levy, ib. 607. A county judge may grant an injunction in a district court case. Ruthrauff v. Kresz, 13 Cal. 639.

my lord that this injunction might not extend to stay proceedings against the under sheriff for his contempt to the Court of King's Bench for the contempt at the king's suit; and it was unnatural for the king, by his injunction, to stay his own suit in another court, the offence being committed before the bill exhibited; yet the motion was denied by my Lord Chancellor.1

60 c. Upon a motion for an injunction to stop the sale of English Bibles, printed beyond sea, it was urged that the Chancery was a court of State, and therefore for the great mischief that might arise from these Bibles, if they should be suffered to be publicly sold, the sale ought to be prohibited by this court upon that politic account, as well as to quiet the king's patentees in their possession. Lord Keeper: I do not apprehend the Chancery to be in the least a court of State; neither can I grant an injunction in any case, but when a man has a plain right to be quieted in it; and, though the patent for law-books has been adjudged good in the House of Lords, yet that is not exactly the same case with this, though near it. Let there be a trial at law, and let the king's patentees be plaintiffs, and the defendants admit they have sold twelve Bibles, and when the trial is over come back again.

2

§ 61. It was early held, that a court or a judge of a court of the United States cannot enjoin proceedings in a State court. Hence, where cases are pending in a State court, in had been attached before any act of bank

which property ruptcy on the part of the defendant, and he had obtained and pleaded his discharge; the assignee and all claimants of the property may be enjoined from attempting to procure process from any court not acting under the authority of the State, with a view to prevent judgments or executions in such actions; and also from applying for or attempting to execute

1

v. Emerton, 1 Vern. 25.

1 Vern. 120.

3

3 Diggs v. Wolcott, 4 Cranch, 179; Rogers v. Cincinnati, 5 McLean, 337.

any summary process, order, or decree of any court with the view of taking from the creditors or their attorneys the fruits of their judgments, on account of any supposed want of right to render such judgments or their supposed invalidity, while in force and unreversed. Also from making application or instituting proceedings, founded on any supposed breach of an injunction or order, issued by any tribunal not acting under State authority, by reason of any proceedings in the State courts, arising after the discharge was pleaded (a).1 But a circuit court may grant an injunction to a judgment at law, although a writ of error to the judgment is pending in the Supreme Court. And the fifth section of the Act of March 2, 1793 (1 Sts. at Large, 334), which forbids the United States Court to grant an injunction to stay proceedings in a State court, does not restrain it from enjoining a sheriff' from levying on the property of A on a process against B.3

In

§ 62. A State court of chancery will not, by injunction, restrain a suit or proceeding previously commenced in a court of another State, or in any of the Federal courts. a late case, being a bill to enjoin a judgment recovered in the United States Court for infringement of a patent, it is said: "We have not the power, if we had the inclination, to enjoin proceedings in the courts of the United States; and should hardly think of commencing so novel an enterprise in a case for the infringement of a patent, which is expressly, if not exclusively, confided by law to those courts. The

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(a) This is one of a series of cases, involving a conflict of jurisdiction between the Circuit Court of the United States and the Supreme Court of New Hampshire, with reference to proceedings under the late bankrupt law. The State jurisdiction was finally vindicated by a judgment of the Supreme Court of the United States. See Peck v. Jenness, 7 How. 612; Hilliard on Bankruptcy, &c. 123.

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