no bond, there being no organ of the government authorized to execute it for her; and if she could give bond, she would not be suable on it. The law which forbids an injunction to be granted without bond from the party can only be obeyed, in this case, by refusing the injunction altogether."

§ 91 6. Though the court will not proceed against a member that has privilege of Parliament, yet, if a Parliament man sues at law, and a bill is brought to be relieved, the court will stay proceedings at law till answer or further order.2

$92. It is the prevailing rule that, in order to obtain an injunction, a party must show a particular injury distinct from that which he suffers in common with the public.3 (See Nuisance.) Thus an action, for the purpose of having the act of the board of supervisors, erecting a new town, declared null and void, and enjoining its organization, cannot be maintained by persons having no other interest than one in common with all the freeholders of the new town. The only remedy is at the instance of the State or some officer.*

§ 93. But, on the contrary, it has been sometimes held that a private individual may obtain an injunction to prevent a public mischief by which he is affected in common with. others. And where a public right appears, in a litigation between private individuals, the court is bound to protect it, though no one asserts the right in behalf of the State. Thus, where the matter in dispute was the right to charge wharfage for a wharf exclusively claimed by both parties, and the court found that neither had the right, and that the public were entitled to the free use of the wharf; both parties enjoined from collecting such wharfage.

were

1 Per Black, C. J., Com. v. Franklin, &c., 21 Penn. 130. 1Vern. 329. 'Falls, &c. v. Tibbetts, 31 Conn.

165.

4 Doolittle v. Supervisors, &c., 18 N. Y. (4 Smith), 155.

5 Whitfield v. Rogers, 26 Miss. 84. 6 The Wharf Case, 3 Bland, 361.

94. Where a contract is made for the sale of land, the vendee is a necessary party to a bill for an injunction to restrain a tenant from waste.'

§ 95. Where relief other than simply the quieting of possession is sought, and an account is to be stated between the warrantor and the party defendant, or on a bill by his grantee for the purpose of quieting possession, the warrantor is a necessary party. But if a warrantor bring his bill of complaint singly, asking, not for a bare injunction, but also for an account and general relief, and if no objection be taken in the early stage of the proceedings, nor any suggestion made that the interests of his grantee in possession require him to be made a party; it is not the duty of the court to delay the cause, for the reason that the grantee is not made a party.3

§ 96. Two or more persons, having separate and distinct tenements, injured or rendered uninhabitable by a common. nuisance, or rendered less valuable by a private nuisance, which is a common injury to the tenants of both, may join in a suit to restrain such nuisance (a).*

§ 97. Where a bill was brought for an injunction by two parties, whose property was injured by the same nuisance, and one of the parties brought a suit at law on a declaration containing several counts, and recovered, and afterwards a supplemental bill was filed by both parties, setting up the verdict, and affidavits were offered in support of both bills and to determine the count on which the verdict was rendered; held, as the injunction was sought after order and

Kidd v. Dennison, 6 Barb. 9. 2 Brooks v. Fowle, 14 N. H. 248.

3 Ibid.

4 Murray v. Hay, 1 Barb. Ch. 59.

(a) The court exercises a sound discretion, without adhering to an inflexible rule, in determining whether there has been a misjoinder of parties in equity.

notice, the hearing should be had upon such affidavits as were pertinent to the issues, but that the injunction would follow the bill; that the parties were properly joined in the supplemental bill; that the injunction should be granted on the supplemental bill on the application of the party presenting the new matter; and that it was competent to show on which count the verdict was rendered.1

§ 98. Any one of several complainants, in a bill for injunction, may verify its statements, in order to authorize the

sanction of the chancellor.2

$99. The proper allegation in a bill, by way of excuse for not making the representatives of a deceased person parties to the suit, is, that the decedent died insolvent, and without leaving any assets for the payment of his debts; an allegation that he died insolvent is not sufficient.3

100. Where an injunction includes persons who were not parties to the proceeding in which it issued, the injunc tion is nevertheless valid as to parties to the proceeding."

§ 101. The question of injunction often arises, in connection with some other ground of equitable jurisdiction, which constitutes the primary object of the bill.

$ 102. Upon a bill for specific performance, and for an injunction to protect the subject-matter of the contract, the latter will not be granted, unless the plaintiff is entitled to

such

performance."

$ 103. In a suit for specific performance of a contract made by the agent of a state prison for the labor of the convicts, it seems that a preliminary injunction to restrain the

agent from making any other contract for such labor will not be granted, if it would prevent the employment of the convicts pursuant to the statute.'

§ 104. Notice is an important subject in connection with injunctions.

§ 105. Equity will not decree a perpetual injunction, which is to operate directly upon the parties in interest, without giving them an opportunity of being heard.2

106. In New Jersey, it has been sometimes held, that notice of an application for an injunction should be given, where it can be done without risk of injury by the delay.3 But in a later decision it is held, that notice is not necessary, unless specially ordered by the court, except where it is made after answer filed, and then it may be dispensed with by the court. And in such latter case, although it does not appear that notice was dispensed with, if it was a proper case for so doing, it will be presumed to have been done."

§ 107. In Pennsylvania, an injunction cannot be granted, until the parties complained of have been served with a subpoena to appear and answer; until then, they are not in court."

§ 108. In New York, on serving an injunction, the plaintiff should at the same time take out and serve such subpoena; but if the defendant voluntarily appears and answers, the objection for the irregularity is waived. Under sect. 220 of the Code, requiring a copy of the affidavit to be served. with the injunction, it is sufficient to serve a copy of the complaint, with its verification, upon which the injunction

Jones v. Lynde, 7 Paige, 301.

2 Marshall v. Beverley, 5 Wheat. 313.

3 Ross v. Elizabethtown, &c. 1 Green, Ch. 422.

Buckley v. Course, Saxton, 504. Blair v. Boggs, &c. 31 Penn. 274. 6 Parker v. Williams, 4 Paige, 439; Seebor v. Hess, Paige, 85; Marsh v. Bennett, 5 McLean, 117.

was issued. An injunction order may be allowed, signed and delivered to the officer, but cannot be served, before the defendant is summoned.2

$109. In Indiana, a court of chancery will not, where there is no emergency, grant an injunction, unless ten days' notice of the application has been given to the adverse party, or the application relates to a suit pending in the court. But where the court has granted an injunction in a case in which the adverse party was entitled to notice, and the transcript does not show whether notice was given or not, the Supreme Court will presume that the notice was given.3

§ 110. Injunctions cannot be granted in the courts of the United States without notice, and hence all of them are special.

§ 111. It is not sufficient that an order for publication has been passed; the publication must be proved, in order to bring a respondent regularly before the court; and where this is not done, and a pro confesso taken, a decree perpetually enjoining a judgment at law will be reversed."

§ 112. An injunction, affecting the rights of a party who has appeared, will not generally be granted on an ex parte application, on a supplemental bill, without regular notice; but a temporary injunction may, in the mean time, be granted, if necessary to prevent serious loss or injury."

§ 113. It is said, although the practice in this country is to grant an injunction, on the filing of the bill, without notice to the defendant, yet the complainant must use due diligence

703.

Leffingwell

v. Chave, 5 Bosw.

84.

4 Perry v. Parker, 1 W. & M. 280. 5 Moore v. Wright, 4 Stew. & Port.

306.

b. Vance

Bloomfield v. Snowden, 2 Paige,