*SECTION XIII.

Injunctions restraining Parties from petitioning Legislature.

1. Right claimed to exist, but rarely exercised, 3. Where right doubtful may be sent to court by courts of equity. of law for determination.

2. Not sufficient that it will interfere with

rights of other parties.

§ 217. 1. The jurisdiction of courts of equity to restrain parties from petitioning parliament in fraud of their own contracts, seems to have been assumed to exist in numerous cases, but its exercise is rare, and with marked circumspection.1 In a late case 2 the Lord Chancellor Cottenham said: "In a proper case I should not hesitate to exercise the jurisdiction of this court, by injunction, touching proceedings in parliament for a private bill, or a bill respecting property, but what would be a proper case for that purpose it may be very difficult to conceive."

2. But it was here distinctly held, that it is not enough to justify such an interference that the object of the application was to interfere with some right or interest of some other party.3 For every act of the legislature which is promoted by private parties, is intended, more or less, to affect private interests of other parties. As, for instance, a railway very essentially effects the interests of those land-owners through whose lands it passes, and a private interest resulting from ownership of property is as sacred works, if perfect justice can be done by compelling the company to pay for the land, but will order the proximate value to be deposited, until the amount be determined.

1 The Stockton & Hartlepool Railw. v. Leeds & Th. & Clarence Railws., 2 Phill. 666. In this case Lord Cottenham, Chancellor, says: "There is no question whatever about the jurisdiction. This is the case of a petition against the Clarence company obtaining an act, enlarging their powers, and authorizing the amalgamation of the four companies, upon the ground that the plaintiff's having come into the arrangement, it was a fraud in them to oppose the act by which it was to be effected. But the court refused the injunction, upon the ground that the contract was merely inchoate.”

2 Heathcote v. The North Staffordshire Railw., 6 Railw. C. 358.

3 And the same doctrine is maintained in the later case of Bill v. Sierra Nevada, &c. Co., 1 De G. F. & J. 177.

as that which rests upon contract. But no one would suppose that because the company had obtained an act, or even given notice of taking land, that a court of equity would, at the suit of the land-owners, enjoin the company from applying to parliament to be released from their undertaking. This would still leave them liable to the land-owners, the same as before.

*

Such is the substance of the opinion of the learned Chancellor in the last case cited.

3. In a case where the construction of the act of parliament was doubtful, the question was sent to a court of law, the injunction being continued in the mean time under such modification as to enable the defendants to perform a condition precedent in their contract with land-owners; and it was said that mere inconvenience could not be viewed in the light of injury, and that companies have a right to carry on their railway according to the plan laid down in their act, although a junction contemplated in procuring the act may be frustrated by the abandonment of the line.4

SECTION XIV.

Interference of Courts of Equity in the Sale and Disposition of the effects of Insolvent Companies.

1. Will interfere to save costs and litigation. | 3. Summary proceeding in some states. 2. All parties interested may come in.

§ 218. 1. Where there are sundry fi. fas. against a railway company which is insolvent, and it is threatened to levy upon and sell the road with its equipments, equity will take jurisdiction, direct a sale for all concerned, and distribute the funds to such as shall show themselves entitled, according to the usual course of the courts of equity in marshalling assets.1

* Clarence Railw. v. The Great N. of England, Clarence, & Hartlepool Railw., 2 Railw. C. 763. See also Attorney-General v. Manchester & Leeds Railw., 1 Railw. C. 436.

1 Macon & Western Railw. v. Parker, 9 Georgia R. 377. A query is here suggested, whether the railway bed and superstructure are liable to the levy of the execution. At all events they cannot be sold in fragments, or distinct portions, upon an execution.

2. In such a proceeding any one who has a claim upon the fund, but who is not a party to the suit, may become a party by presenting his claim before the Master, or under the decree, before it becomes final. But if he neglects to do so, equity will not aid him in setting it aside.1 Equity will not relieve against a judgment recovered through the negligence of the defendant.2 3. The courts of equity, in some of the states, have interfered in a very summary manner to set aside conveyances to corporations which have forfeited their corporate rights and existence by irregularity or defect in their proceedings. But in general a corporation must be regularly adjudged to have forfeited its corporate existence before any court will enter upon a collateral inquiry into the facts upon which such claim is made.3

*SECTION XV.

Manner of granting and enforcing ex parte Injunctions.

1. Such injunctions especially liable to abuse. 4. Remarks of Lord Cottenham upon this

§ 219. 1. The general mode of obtaining ex parte injunctions is sufficiently understood to be by bill, verified by the oath of the party, and accompanying affidavits. This gives very great advantages always to unscrupulous suitors; and in a country where chancery practice is not a distinct department of the profession, so as to create always the highest standard of professional delicacy, and where it is too much the course of public opinion to justify any degree of professional subserviency, to serve the purpose of clients, there are few instruments in the range of legal proceedings more susceptible of irreparable abuse than an ex parte injunction out of chancery.

2. Hence in modern times, when they are sought for the purpose of staying the operations of great public enterprises, either

2 Bruner v. Planters' Bank, 23 Miss. R. 406. 3 Casey v. Cin. & Chi. R. Co., 5 Clarke, 357.

in construction or operation, it has been more usual not to allow them, except upon notice to the defendant, and on opportunity to produce affidavits in exculpation.1

3. The injunction is always dissolved upon the defendant's answer, filed gratis,2 denying the equity of the bill, unless for special reasons the court, on affidavits upon both sides, sees fit to order its continuance, either absolutely or upon terms.3

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4. The remarks of Lord Chancellor Cottenham are fit to be here inserted, perhaps: "A very wholesome rule has been established in this court; that if a party comes for an ex parte injunction, and misrepresents the facts of the case, he shall not then be permitted to support the injunction by showing another state of circumstances, in which he would be entitled to it; because the jurisdiction of the court in granting ex parte injunctions is obviously a very hazardous one, and one which, though often used to preserve property, may be often used to the injury of others; and it is right that a strict hand should be held over those who come with such applications. The objection here taken is not that the facts were not stated, but that the whole law was not stated; that is to say, that the attention of the court could not have been called to certain provisions of the act, which would have presented a different view of the case in the mind of the judge. If fault is to be found with any one, it is, I am afraid, with the court, which is bound to know every clause in every act ever passed, a degree of knowledge hardly to be hoped for.

1 See Del. & Rar. Canal & C. & A. Railw. v. Rar. & Del. Bay Railw., 1 McCarter, 445. The court in this case denied a motion for a temporary injunction, as being a violation of the spirit of the rule which forbids the issuing of an injunetion to restrain the construction of a public work, authorized by a law of the state, until after a hearing upon a rule to show cause. And in a recent case in New Jersey, the court say that when public interests, or the rights of large classes are involved, an injunction will not be granted except upon hearing and notice, and then only when it appears that the injunction will not prejudice some public or quasi public interest. Society for Establishing Useful Manufactures v. Butler, 1 Beasley, 498. See also Attorney-General v. Charles, 11 W. R. 253.

2 The Attorney-General v. The Mayor of Liverpool, 1 Mylne & C. 171. But where the dispute is not about facts, but is a mere question of legal construction, as the proper interpretation of a grant of mining rights, a simple denial of the equity of the bill will not as of course entitle the defendants to a dissolution of the injunction. Boston Franklinite Co. v. New Jersey Zinc Co., 2 Beasley, 215 3 Warburton v. The London & Blackwall Railw., 1 Railw. C. 558.

I never heard the rule carried to this extent, that the party applying is bound to lay the whole law before the court. I do not find that any misstatement or omission of any important facts was made on the present application; nor am I at all aware, if the whole law of the case, as far as it can be collected from the act of parliament, had been brought under my view, that upon the statement in the affidavit that the defendants were immediately proceeding to act, I should have thought this a case in which it was expedient to permit the defendants to go on until an opportunity was given to have the matter fully heard and discussed. I have nothing to do with any feelings which may be excited in Liverpool on the subject; the court can only look to the question as a matter of property, and as a matter of property this is the most innocent injunction that could possibly be granted, as indeed is proved by the fact that the defendants have waited fourteen days before they applied to dissolve it. They will still have ample time to carry into effect the plan .which they have adopted, and which they have adopted from very good motives. Whether they have a right to carry it into effect it is not now my intention to determine; my object being to let things remain as they are until this important question can be regularly brought on for solemn argument and decision.

"In many cases the court feels, that by granting an injunction ex parte, it may be doing an act of extreme injustice. The party against whom such an injunction is granted may possibly be exposed to very great injury by the order being enforced; but when, as here, the injunction is to prevent an alteration in the state of property, to prevent the corporation seal from being put to securities, until an opportunity is afforded of having the matter fully discussed, it is not in point of property an injunction which can occasion any mischief whatever."

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In another case the same learned judge puts forth some very pertinent strictures upon the bad taste and bad morals of litigation in courts of equity, upon grounds quite one side of the merits of the real controversy and matter in dispute: "It is very necessary that this court should deal very strictly with companies, and prevent them, with the large powers that are * Bell v. The Hull & Selby Railw., 1 Railw. C. 636.

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