170 E(~UITY J>LEADJNC~ AND PRACTICE.

LECTURE XIV.

PETITIONS.

Petitions are entitled in the court and cause and

addressed in the same manner as a bill, when they are

made in a cause already pending.

The petition should briefly and clearly set forth the

particulars of the case and conclndc with praying the con rt to grant the order desired '' or such other and

further relief as may be agreeable to equity and good

conscience." The petition must be signed and sworn

to by the petitioner and also signed by the counsel.

Matter of Christie, 5 Paige 242.

When a person not a party to the original bill has

an interest by way of title, lien or otherwise in the

property which forms the subject-matter of the snit. and such interest is liable to be affected by the pro­

ceedings, he may by petition apply to the court for·

leave to intervene for the protection of his rights, and

such leave will be granted when the cause exists.

When leave is graute<l the party innst forthwith, or ·

within such time as the court determinei::, file his peti­

tion in the cause setting forth his righ ts and praying

for the relief sought, and give notice of the filing­

thereof to the other parties to the cause.

Freemn.n v. Howe, 24 How. 450; Stewart v. Durham , 115 U.S. 61; Gumbel v. Pitkin, 124 U. S. 131-143.

EQUITY PLEADINU- AND PRAUTlUK l 71

Petitions are noticed, and heard in the same man­

ner as motions. ORDERS.

Orders are either common, special or by consent.

A common order is one that the party ia en titled as of course and is made without notice to the opposite

party. A special order is one made by the eourt npon

special application, either ex parte or upon notice.

An order by consen t is bne made npon ~tipnlation of the parties or their solici tor8.

All common orders and orders by cousent of the

parties, may be entered in the com1non rnle book in the register's office, at the peril of the party taking such order. The day on which the order is entered must be noted in the entry. All special orders made by the cou rt m nst be entered in the recor<l of the pro­

ceed_ings of the con rt. When an order is entered by consent, the consent must be in writing signed by the parties or their solicitors and filecl in the cause. •

Hammond v. Place, liar. Cb. 438: Crone v. Angell, 14 Micll. 339; l\1ich. Rules 24.

Orders for injunctions, anJ all other special or<lers, must be entered with the register before process . issues.

Hoffman v. Treadwell, 5 Paige 82; Skinner v. Dayton , 2 Johns. Ch. 226.

It frequently happens that the entry of a common

order is not made at the proper time. In such a case, if no great length of time has in terveneu, a motion of

172 EC.~UITY PLEADING AND PRAC'I'IOE.

cause may be made to the court to enter the order

nunc _R'l'O tune : but after a considerable length of time, there ought to be notice of the motion.

Williamson v. Henshaw, 1 Dick. 129.

Neither party can have a11y benefit from a decision of the con rt n ntil the order thereon is drawn up and

J.>erfected. When the order granted is special in its

provisions the party in whose favor it is granted

should submit a copy to , the adverse party that he

inay snbmit amendments thereto if he desired. The

draft and the amendments are then given to the reg­

ister t hat the order may be settled by bitn and

entered. If the register is in doubt as to the decision

of t he co urt~ be is, in such a case, to apply to the cou rt to settle the order.

W'bitney v. Belden, 4 Paige 14.0; Earl of Fingal v. Blake, 3 :.Molloy 50.

SERVI CE OF ORDERS.

Not all orders need be served, and whether or not

an order m nst be served depends usuallJ upon the

f orrn of the order. Special orders obtained ex parte, usually provide that the act designated shall be per ­

formed by the opposite party within the time specified after sen rice of the order. Bu t where a special order

is obtained upon notice the order usually provides

that the act shall be performed within the time desig­

nated after entry of the order. The reason for this

d istinction is that )n the first instance the opposite

party has no personal knowledge of the order until

}l;QUI'l'Y PL lt;A IHN($ .\NI) l'RAOTIUE. 173

he is Hotitied, and i 11 tlic late1· case he ha. such noti<.:e, having had notice of the motion for the orde1·.

But in all cases as we ha\·e seen where it is intendou

to bring the party into contempt for not complying

with the ordm·, notice must be served npon hi1n per­

sonally. The service in snch <'asc is made in the

same manner as notice of a decree, b.Y delivering to

him a. copy of the order and at the same time show­

ing him a certified cop.Y of the original order under

the seal of the court.

& parte Gwynne, 12 V cs. 380; Cooper 282; Laton v. Seam au. 9 Paige 609; Young v. Goodson , 2 Russ. 255.

Wheu the party has appeared by solicitor, and it is

not desired to bring him into conten1pt, service of notice, when notice is necessary, n pon the solicitor is sufficient.

Stafford v. Brown, 4 Paige, 360-362.

ENFORCING ORDERS.

It is some times provided by statu te that orders for

the payment of 1noney may be e nforced by mean of

an execntiou running against the....._1w~~-rty of the defendant. At common law orders 0Qll're, in genera],

enforced by process of conte1upt. Upon motion, and

proof that an order ha<l been pe1·sonally served, for

the payment of costs f or instance, and that the order

had not been obeyed, attachment issued aud the defend­

ant was committed to prison for contemp t.

Dani. Cbr. P. 1454.

174 gQlJl'l'Y PLEAnJNG AND PRAOTICK

MODIFYING AND DISCHARGING ORDERS.

It is a general rule that every order made in the

progr~sc, may for cause shown, be modi­fied or reeei .. ·ed at any time before the final disposi­tion of the snit.

Ashe v. Moore, 2 Mer. 383; Fanning v. Dunham, 4 Jouns. Ch. 35; I snaid v. Cazeaux, 1 Paige 39.

An order will not be vacated, however, except to permit the ])arty applying to secure rights that arc

meritorious. If he simply desires to delay a canse, or take ad vantage of some technical defence or objection ,

the court will allow the order to stand although the

party has excused himself from all fault.

Champlin v. Mayor of N. Y., 3 Paige 573; Townsend v. Townsend, 2 Paige 413; Hunt v. Wallis, 6 Paige 371.

INJUNCTIONS.

It is very frequently necessary for a court of equity

to r estrain a party from doing some particular act in ord er to prevent irreparable injury to another, or to

maintain the statu quo pending the determination of

the legal rights of the parties to the subject-matter ·in

litigation . This object is accomplished by the writ of

i njunction, a wri t of the greatest importance and of very frequent use especiaily in this country during

the past half centnry. W c can do no more than

mere1y to h1dicate the existence and purpose of the

writ, and refer the the student to the exhansti ve trea­

ties on the su l>ject by Dr. High.

A writ of injnnctiou is a judicial process acting in

EQUl'I'Y PLEADING AND l'H.A.C'fIOJr.. 175

pe1•sonarn requiring the party to whom it is directed to

do or to refrain from doing some act therein specific­

ally described. It is used both for the enforcernent of

a. right and the prevention of a wrong, but it must be

an actna1 right or a positive wrong, and the withho]d­

i ng of the right or the doing of the wron~ must work

a positive injury to the person complaining, or the

court will not interfere .

.McDonogh v. Calloway, 'i Rob. La. 442; Goodrich v. Moore, 2 ~1inn. 49.

Injunctions arc either mandatm·y, commanding

something to be done, or preventive, forbidding the

doing of something. A mandatory injunction is

seldom issued and theu only upon the final hearing.

Robinson v. Byra.m,1 Bro. C. C. 588; Gale v. Abbott.,8Jur. N. S. 987; Worthington v. Green, 1 Md. Ch. 97: Rogers v. Hailroad, 5 C. E. Green, 379.

With reference to their duration injunctions are

either interlocutory or perpetual. Interlocutory in­

junctions are issued at any time during the progress

of the suit, usually at the filing of the bill, to continue

until the coming in of the answer, or the hearing, or

the further order of the court. A perpetual injunc­

tion is never granted except at the final hearing and is

usually a part of the decree.

Chapman v. Harrison, 4 Bland 336.

The sole object of an interlocutory injunction is to

preserve the present situation of the parties, and

therefore it will go no further than is necessary to

preserve all the rights in issue between them in

176 F.!(!UI'lT PLI~A DINH AND PRACTTCK

statit q-uo. They are divided into two classes, cmn­mon and special.

A common injunction is one that issues to aid the

court in g ranting the ultimate relief asked, which is

sometli ing differerrt fro m the in junction itself, while a special injunction is issned to p revent irreparable

injury and the obtaining·of which i · the sole or prin­

cipal object and pnrposc of the snit.

Purnell v. Daniel, Ired. Eq. 9; Troy v. ~orman, 2 Jones Eq. 318; Peterson v. Mathis, 3 J ones Eq. 31.

An injunct ion becomes operative from the time the

party to whom it io di rected has actual notice. I t is

not necessary that he should be actually served \vith

the writ and therefore it may be served out ,ide the

j urisdiction of the cour t. Ramsdall v. Craighill, 9 Ohio 197; Little v. Price, 1 .Md. Uh.

182; Milne v. Van Buskerk, 9 Iowa 558; Osborne v. T ennant, 14 Yes. 13G.

A perpetual iujunction is ouc that ]s issued under a

final decree as an interlocntory injnnction which is

made perpetual by the fi nal decree. By i ts terms the

defendant is forever inhi bited f rom doing certaiu acts,

or m aking certain specific claims therein set forth,

which wonl<l be contrary to equity and good con­

science. Such an injunction will issue whenever it is

necessary to protect the rights of the complainant. Bushnell v. Hartford, 4 .Johns. Oh. 301; Caruthers v. Harts­

field, 3 Yerg. 35G: Kenson v. Kenson, 1 Ribb. 184.

Injunctions in this state may be granted by a circuit

court commissioner. Mich. Rule 112; see also 17, 21, 2:J, 109.

EQUITY PLEATHNl: .\NI> PRA.CTICJ:i:. 177

Special injunction are not granted in the United States Court except upon notice to the op1 osite party, and they continue in force until the next term of the court, or until the further order of the court.

U.S. Rule 55. Revised St. ~§71 , 719, 720; Parker v. Judges, 12 Wheaton 561.

WRIT F NE EXEA.T.

A writ of ne exeat is the process of the court issuing under its seal to prevent a person who is a party to a suit fro1n leaving the jurisdiction of the court. It is resorted to for the purpose of compelling a defendant to give bail_ conditioned that he will do and perfonn the decree of the court.

Gilbert v. Colt, Hopk. 496; De Riva:finoli v. Con etti, 4 Paige, 264; Gleason v. Bisby, 1 Clarke, 551.

The statutes of the United State provide that when a snit in equit.Y is commenced, and satisfactory proof is made to the circuit court, or to the circuit justice or jndge, that the defendant de igns quickly to depart . from the United States; that there is due from him a sum certain or capable of reduction to a certainty · that complainant has no ufficient lecral redre s, and that irreparable injury or a denial of justice will be caused to complainant if the defendant , o departs, such court or jndge may order the issuance of a writ of ne exeat, upon which the mar hal arrests the defend­ant and keeps him in custody unless he gives security to abide the order and decree of the court.

Revised Statutes§ 717; U. S. Rule 21.

The writ may be applied for at any stage of the 12

178 EQUITY PLEA.DING AND Pl~ACTICE.

proceedings after, but not before, the filing of the bill of corn plaint. ·

Ex pr. Ilrumkcr, 3 P. Wms. 312: Dunham v. Jackson, 1 Paige 62!).

The application for the writ may be made em parte. The a pp! ication is fonnclecl n pon atfida vit or petition, and, unlike the writ of injunction, it need not be prayed for in the bill. The writ may l>c allowed by the same officers who are authorized to allow writs of injunction, and the office1· making the allowance directs in what amount the defendant shall give bail.

Elliott v. Sinclair, J ac. 545; Gleason v. Bishy. 1 Clarke 5'51; Brehm v. 'Vootl, 1 Turner & Russ. 332; .McNamara v. Dwyer, 7 Paige 239.

The writ commands the sheriff to have the defend­ant personall.Y to come before him and give a bond in t11e penal snm endorsed thereon, tl1at he will not go, or attempt to go, beyond the jurisdiction of the court -at common law beyond the four seas-and in

default of his giving snch bond that he commit him to

pnson. Gibert v. Colt, 1 Hopk. 500; Hice v. Hale, 5 Cash. 239; Mich.

Rule 17.

RECEIVERS.

A receiver is a snitable person appointed to take charge of property which is in volved in the suit, when for any re~son, the conl't regards the parties to the suit not to be the proper persons to have the custody or management of such property. The appointment of a receiver is discretionary with the court. When

EQUITY PLEADING AND PltACTICE. 170

appointed he is regarded as an officer acting under the orders of the court. The power of appointment is usually called into action either to prevent fraud or save property in litigation from material injury.

lo re Receivers' Globe Ins. Co. 6 Paige 102; Baker v. Barkies, 42 Ill. 79; Vorhill v. Hynson, 26 Mil. 83, 92; Mich. Rules, 104, 106, 107, 108; U. S. C. C. Rules 8, 9, 11.

When the application for a rccci v-cr is made d nring

the pendcuey of tl1e suit and before a decree, there mnst be a foundation laid for the application in the

bill, but. the biJl need not contain a prayer for a receiver. The application is n1aclc upon motion,

notice of which must be served npon the opposite party, unless he has absconded or has concealccl him­

self to avoid service.

Dowling v. Hudson, 14 Beav. 42:3, 42!; Pitcher v. Hilliar, 2 Dick. 580.