sence of any local rule upon the subject, the practice in giving notice of an application for an injunction, and of proceeding at the time when the application is made, are the same when an injunction is asked for as upon any other interlocutory application. It has been said that an application for an interlocutory special injunction, during term and after the beginning of a suit and before answer, can only be made by motion; but that in vacation a judge may grant such an application upon petition. The usual practice is, however, to apply by motion. It has been held that a mandatory injunction can only be granted upon notice. It has been further held that the evidence which would prevent the issue of an interlocutory injunction will be sufficient to induce the court to dissolve one previously granted. § 232. Affidavits upon an application for an injunction.— The affidavits upon which an injunction is sought are usually sworn to by the plaintiffs or one of them, but may be sworn to by any person acquainted with the facts, in which latter case the affidavit should, it seems, state a good reason for its not being sworn to by one of the plaintiffs. Except in extraordinary cases, the allegations must be sworn to positively and not upon information and belief, unless the sources of the in faith, uberrima fides.' In cases of insurance a party is required not only to state all matters within his knowledge, which he believes to be material to the question of the insurance, but all which in point of fact are so. If he conceals anything that he knows to be material, it is a fraud; but besides that, if he conceals anything that may influence the rate of premium which the underwriter may require, although he does not know that it would have that effect, such concealment entirely vitiates the policy. So here, if the party applying for a special injunction abstains from stating facts which the court thinks are most material to enable it to form its judgment, he disentitles himself to that relief which he asks the court to grant." 6 Daniell's Ch. Pr. (5th Am. ed.) 1666; Smith v. Clarke, 2 Dick. 455; Nichols v. Kearsly, 2 Dick. 645, 7 Chicago, B. & Q. R. Co. v. Burlington, C. R. & N. R. Co., 34 Fed. R. 481. 8 Cary v. Domestic S. Co., 26 Fed. R. 38. Contra, Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. R. 730; s. C., 54 Fed. R. 746; supra, § 225. § 232. 1 Daniell's Ch. Pr. (5th Am. ed.) 1669. 2 Lord Byron v. Johnston, 2 Meriv. 29; Brooks & Hardy v. O'Hara Bros. 8 Fed. R. 529. 3 Lord Byron v. Johnston, 2 Meriv. 29; Spaulding v. Keely, 7 Sim. 377; Scotson v. Gaury, 1 Hare, 99; Kerr on Inj. 548. formation are stated and some excuse given for the absence of the affidavit of the informant. It is in general necessary that a plaintiff should swear positively to his title. An injunction has been refused when a plaintiff merely swore upon information and belief that he was a remainderman under a settlement. Upon an application for an injunction to stay waste, he must set out his title with particularity. A statement "that the plaintiff was entitled to the fee simple of the estate" has been held insufficient." It has been said that if fraud is relied upon as a basis for an injunction, it must be sworn to positively, and not merely upon information and belief. The plaintiff should also in the affidavits show some actual violation of his rights, or a sufficient ground to apprehend it.' An injunction may be granted though the bill is not sworn to, provided that the accompanying affidavits show a proper case for it; 10 but not unless a proper case is made out by the bill itself." If the defendant in his opposing affidavits set up as a defense new matter in avoidance of the case shown by the plaintiff, the latter may have leave to file further affidavits in rebuttal; but generally no subsequent affidavits can be filed by the defendant.12 Rebutting affidavits may also be used to support any allegations of the bill denied in the answer except such as state the plaintiff's title to property affected by the litigation. The authorities are conflicting as to whether or not the plaintiff's title, if denied in the answer, can be supported 13 Lake S. & N. Ry. Co. v. Felton (C. C. A.), 103 Fed. R. 227; Murphy v. Jack, 142 N. Y. 215, 218; Rosevelt v. Edson, 51 N. Y. Super. Ct. 227. In Re Debs, 158 U. S. 564, 573, the bill filed by a railroad company was verified only by the affidavit of a person not shown to be connected with it, stating that he had read the hill and believed the statements therein contained to be true. son v. Cator, 5 Ves. 688; Hanson v. Gardiner, 7 Ves. 305. 10 Smith v. Schwed, 6 Fed. R. 455. 11 Cooper v. Mattheys, 8 Law R. 413; Wilson v. Stolley, 4 McLean, 272; Leo v. Union Pac. Ry. Co., 17 Fed. R. 273; Land Co. v. Elkins, 20 Fed. R. 545; St. Louis T. F. v. Carter & G. P. Co., 31 Fed. R. 524. 12 Day v. New Eng. C. S. Co., 3 Blatchf. 154. See Rule 107 and Rule 5 Daniell's Ch. Pr. (5th Am. ed.) 1669. of May, 1846, of U. S. C. C., S. D. 6 Davis v. Leo, 6 Ves. 784. 7 Whitelegg v. Whitelegg, 1 Brown, Ch. C. 57. N. Y., quoted supra, § 230. 13 Brooks v. Bicknell, 3 McLean, 250: Farmer v. Calvert Lith. Co., 1 8 Brooks & Hardy v. O'Hara Bros., Flip. 228. See Rule 113 and Rule of 8 Fed. R. 529. 9 Gibson v. Smith, 2 Atk. 182; Jack May, 1846, of U. S. C. C., S. D. N. Y. by rebutting affidavits." Where an allegation in the bill is not denied in the answer, it is taken as admitted for the purposes of a motion for a preliminary injunction.15 Documentary proof, if of equal force with affidavits, can also be used in support or in opposition to a motion for an injunction.16 Upon the hearing of a motion for a preliminary injunction, the rules of evidence are applied less strictly than upon the final hearing of the cause; and consequently decrees entered in suits between strangers affecting the validity of a patent in question may be offered in evidence, in support of an application for a preliminary injunction, but not in support of an application for one that is to be perpetual." Hearsay evidence may also be used.18 In one case statements in a proclamation by the Governor of the State were treated as evidence upon such a motion.1 In another, campaign speeches by the Governor of the State were treated as evidence of the proper construction of a law.20 § 233. Rules of decision upon applications for interlocutory injunctions. The issue of an interlocutory injunction is never a matter of right, but rests in the sound discretion of the court. In order to obtain one, the plaintiff must show either that there is no doubt of the wrongful nature of the act sought to be enjoined, or that his own claims of right have been acquiesced in without question for a long period of time, or that the injury which will result to himself from a refusal of the injunction will be very great, and that to the defendant from the issue thereof very slight. Otherwise, an interlocutory in 14 Compare Poor v. Carleton, 3 Sumn. 70; Goodyear v. Mullee, 3 Fisher, 420, with Farmer v. Calvert Lith. Co., 1 Flipp. 228; Parker v. Sears, 1 Fish. Pat. Cas. 93; U. S. v. Parrott, 1 McAll. 271. See Rule 107 and Rule of May, 1846, of U. S. C. C., S. D. N. Y. Sage quotes this passage with approval. 19 Coeur d'Alene Cons. & M. Co. v. Miners' Union, 51 Fed. R. 260. 20 Mercantile Tr. Co. v. Texas & P. Ry. Co., 51 Fed. R. 529, 542. § 233. Minturn v. Larue, 1 McAll 370; Buchanan v. Howland, 2 Fish. 15 Young v. Grundy, 6 Cranch, 51. 341; Doughty v. West, 2 Fish. 553. See § 146. 2 Varick v. Mayor of N. Y., 4 J. Ch. 16 Schermerhorn v. L'Espenasse, 2 (N. Y.) 53; Kirby Bung Mfg. Co. v. Dall. 360. 17 Buck v. Hermance, 1 Blatchf. 322; Matthews v. Ironclad Mfg. Co., 19 Fed. R. 321. 18 Casey v. Cincinnati Typ. Union No. 3, 45 Fed. R. 135, 147, where Judge White, 1 Fed. R. 604; McKay v. Dibert, 5 Fed. R. 587; W. U. Tel. Co. v. Union Pac. R. Co., 3 Fed. R. 721; Atlantic & Pac. Tel. Co. v. Union Pac. Ry. Co., 1 Fed. R. 745. 3 W. U. Tel. Co. v. St. J. & W. Ry. junction will be denied him. In a suit under the act to protect trade and commerce against unlawful monopolies, a preliminary injunction was refused when doubtful questions of law and fact were involved, partly upon the ground that as the United States tendered no bond, more injury would result to the defendant from the issue than to the plaintiff from the refusal of the writ. A preliminary injunction to restrain the infringement of a patent will nearly always be refused, if the defendant has ample pecuniary responsibility, or gives security against loss to the plaintiff, and is willing to keep an account of his manufacture, use, and sale of the article claimed to be patented, and the damages which the plaintiff will suffer can be readily reckoned in money." Danger of inconvenience to the public is a ground for refusing a preliminary injunction. A preliminary injunction may also be refused when the plaintiff has been guilty of laches in applying for it; even though his delay has not been such as to disentitle him to a perpetual injunction after the hearing. If an injunction has been obtained An injunction was granted against an illegal ordinance regulating water rents for one year, although an appeal from the order could not be determined before the end of the year. Los Angeles C. W. Co. v. Los Angeles, 88 Fed. R. 720. 5 U. S. v. Jellico M. C. & C. Co., 43 Fed. R. 898. Co., 3 Fed. R. 430; W. U. Tel. Co. v. v. Interstate Tr. Co., 45 Fed. R. 5. Burlington & S. W. Ry. Co., 11 Fed. R. 1; Am. U. Tel. Co. v. Union Pac. Ry. Co., 1 McCrary, 188; Atlantic & Pac. Tel. Co. v. Union Pac. Ry. Co., 1 McCrary, 541; Allison v. Corson (C. C. A.), 88 Fed. R. 581; Dimick v. Shaw (C. C. A.), 94 Fed. R. 266; Indianapolis Gas Co. v. Indianapolis, 82 Fed. R. 245, 246, per Baker, J.: "It is settled that upon a preliminary application for a temporary restraining order all that the judge should, as a general rule, require is a case of probable right, and of probable danger to that right without the interference of the court, and its discretion should then be regulated by the balance of inconvenience or injury to the one party or the other." Citing New Memphis G. & L. Co. v. Memphis, 72 Fed. R. 952. 4 Coffeen v. Brunton, 5 McLean, 256; Smith v. Cummings, 1 Fish. Pat. Cas. 152; French v. Brewer, 3 Wall. Jr. 346; Pentlarge v. Beeston, 1 Fed. R. 862; Kirby Bung Mfg. Co. v. White, 1 Fed. R. 604; Texas & Pac. Ry. Co. 6 Foster v. Moore, 1 Curt. 279; Morris v. Shelbourne, 8 Blatchf. 266; Gilbert & B. Mfg. Co. v. Bussing, 12 Blatchf. 426; Swift v. Jenks, 19 Fed. R. 641; Hoe v. Boston D. Adv. Co., 14 Fed. R. 914; U. S. Annunciator Co. v. Sanderson, 3 Blatchf. 184. But see Gibson v. Van Dresar, 1 Blatchf. 532; Tracy v. Torrey, 2 Blatchf. 275: Park hurst v. Kinsman, 2 Blatchf. 78; McWilliams Mfg. Co. v. Blundell, 11 Fed. R. 419. The rules of decision upon motions for injunctions in patent suits are explained in § 217, supra. 7 Southwestern B. El. L. & P. Co. v. Louisiana El. L. Co., 45 Fed. R. 893; supra, § 216. 8 Gordon v. Cheltenham Ry. Co., 5 by an interlocutory order, and it is desired to continue it provisionally after a hearing, a direction to that effect should be inserted in the interlocutory decree then entered. Upon the assignment of a motion for an injunction the defendant can raise any defense to the substance of the bill that would be set up by a demurrer.10 § 234. The writ of injunction.- Immediately upon the entry of an order for an injunction, the party who obtained it is entitled to have the writ issued from the clerk's office and served. He should attend to this within a reasonable time. Where the writ was tested six weeks after the entry of the order granting it and was not served till nearly a year afterwards, the court refused to punish the defendant for disobedience, saying that, after the lapse of so much time, the plaintiff should have applied for leave to use the writ. Like all other writs and processes issuing from the courts of the United States, writs of injunction must be under the seal of the court from which they issue, and signed by the clerk thereof. Those issuing from the Supreme Court or a Circuit Court must bear teste, from the date of such issue, of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence, and those issuing from a District Court must bear teste of the judge, or, when that office is vacant, of the clerk thereof. "The orders pronounced by the court in cases of special injunctions before answer, have varied at different periods. The form most frequently adopted enjoined the party 'till further order. In some cases the injunction has been till appearance and further order;' in others till answer and further order.' But the form at present used, and which is established by a rule laid down by Lord Eldon, is 'till answer or further order.' This has been adopted as giving defendant the liberty to move, if necessary, to dissolve upon affidavit, before he has answered the bill." Beav. 229; Mundy v. Kendall, 23 Fed. 9 Daniell's Ch. Pr. (2d Am. ed.) 1902; Gardner v. Gardner, 87 N. Y. 14. 10 Ladd v. Oxnard, 75 Fed. R. 703. § 234. Daniell's Ch. Pr. (2d Am. ed.) 1816, 1817, 1964. 2 McCormick v. Jerome, 3 Blatchf. 3 U. S. R. S., §§ 911, 912. The 4 Daniell's Ch. Pr. (2d Am. ed.) 1895; Read v. Consequa, 4 Wash. 174. See Bolton v. London School Board, 7 Ch. D. 766, 771; Gardner v. Gardner, 87 N. Y. 14; State v. Wakeley, 28 Neb. 431, 437. |