Injunction. culty which presents itself upon the question, livered from usury, must do equity by paying whether the complainants in the circuit court the principal and legal interest upon the money have shown, in themselves, sufficient authority borrowed. The complainant does not offer to to maintain their suit, is, that it is not evidenced by any formal vote or writing. If it were necessary to decide the case on this point, under all the circumstances, it might be fairly presumed. But this is not necessary; because this is one of those cases in which certain persons belonging to a voluntary society, and having a common interest, may sue in behalf of themselves and others, having the like interests, as part of the same society, for purposes common to all, and beneficial to all. Beatty et al. v. Kurtz el al., 2 Peters, 584. 748. The consideration alleged in a bill for an injunction, for the promise of an attorney to proceed by execution against the drawer of the note, and make the amount of the same, was the relinquishment of a defence which the defendant at the time considered legal and valid. By a subsequent judicial decision, it was determined that the defence would not have been sustained. The court said :-To permit this decision to have a retrospective effect, so as to annul a settlement or agreement made under a different state of things, would be sanctioning a most mischievous principle. The Union Bank of Georgetown v. Geary, 5 Peters, 99. do so in this bill. This is essential to every such application in a court of equity: first, to give the court jurisdiction; and to enable the chancellor, if he thinks proper to do so, to require the payment of principal and interest before the hearing of the cause. The relief sought in such cases, is an exemption from the illegal usury. The whole inquiry on the hearing is to establish that fact, and to give relief to that extent. Whenever a complainant does not comply with the rule, by averring in his bill his readiness or willingness to pay principal and interest, he can have no standing in a court of equity. Ibid. 753. The attorney of the plaintiffs, in an action on a promissory note, agreed with the defendant, whose intestate was endorser of the note, that if he would confess judgment, and not dispute her liability upon the note, he, the attorney, would immediately proceed by execution to make the amount from the drawer of the note, the principal debtor, who, he assured her, had sufficient property to satisfy the same. Upon the faith of this promise, she did confess the judgment. Held, that this agreement fell within the scope of the general authority of the attorney, and was binding on the plaintiffs in the suit. The plaintiffs in the suit having failed to proceed by execution against the drawer of the 749. An injunction was refused, on a motion for an injunction to prevent the execution of certain acts of the legislature of Georgia, in the territory of the Cherokee nation of Indians, on be-note, and having suffered him to remove with half of the Cherokee nation: they claiming to proceed in the supreme court of the United States as a foreign state against the state of Georgia; under the provision of the constitution of the United States, which gives to the court jurisdiction in controversies in which a state of | the United States, or the citizens thereof, and a foreign state, citizens or subjects thereof, are parties. The Cherokee Nation v. State of Georgia, 5 Peters, 1. 750. A bill for an injunction is not considered an original bill between the same parties, as at law; but if other parties are made in the bill, and different interests involved, it must be considered, to that extent at least, an original bill. Dunn v. Clarke, 8 Peters, 1. 751. A. filed a bill in the circuit court for an injunction to prevent the sale of property by a trustee, to whom it had been conveyed to secure the payment of a sum of money borrowed by him at usurious interest. The money borrowed had not been repaid; and the bill sought no discovery of the usury from the defendant, but averred that the complainant would be able to prove it by competent testimony. The circuit court dismissed the bill. Held, That the decree of the circuit court was correct. Stanley v. Gadsby, 10 Peters, 521. 752. The case of Stanley v. Gadsby is substantially an application for relief from usury; and the consequence of granting the injunction would be relief upon terms at variance with the rule of equity so fully recognised at this term of the court, in the case of Brown v. Swann et al.; that he who seeks the aid of equity to be de his property out of the reach of process of execution, the circuit court, on a bill filed, perpetually enjoined proceedings, on the judgment confessed by the administratrix of the endorser; and the decree of the circuit court was, on appeal, affirmed by the supreme court. Union Bank of Georgetown v. Geary, 5 Peters, 99. 754. In a suit by sundry creditors against the estate of their debtor, after great delays, resulting from the number of parties, and the complexity of the case, a decree was rendered, establishing several of the claims, and adjusting their priorities. The administrator de bonis non of the debtor, at the date of the decree, was also executor of a former administrator of the estate, and claimed a large balance to be due to the estate of his testator, from the estate of his intestate, on his administration account. The commissioner made a favourable report on this claim, but the proper parties not being before the court, no decision was made on its validity. The decree referred to, added:-"And the court, without deciding that there is, at this time, assets of the estate of" the debtor, "in the hands of the administrator de bonis non, or on the claim of" the administrator, &c., "to retain out of the assets in his hands, the balance he claims to be due, &c., to his testator, doth decree, &c., that the said administrator, &c., out of any assets in his hands, or to come to his hands, applicable to the claims hereby established; and the receiver of sundry effects and securities, &c., of the debtor's estate, &c., pay, &c." Under this decree, the receiver, without authority from-the administrator de bonis non, transferred some Injunction. him, it would be irregular to take the bill pro confesso. Ibid. 758. The answer in chancery of a corporate body, under its common seal, denying the equity of the bill, is sufficient to warrant a denial of an injunction, or to dissolve it if granted. Haight v The Proprietors of the Morris Aqueduct, 4 Wash C. C. R. 601. 759. A perpetual injunction was granted, in order to stay proceedings on a judgment at law obtained in a suit instituted in the name of a person not interested, whose name was used only for the purpose of preventing a defence which the defendant had against the real plaintiff in interest. Greenleaf v. Maher et al., 2 Wash. C. C. R. 393. securities for money due to the estate of the debtor, to the agent of one of the plaintiff's creditors. To prevent the remittance of the money secured by these bonds, beyond the jurisdiction of the court, until the debt (which, if established, would be of the highest dignity) due to the estate of the former administrator should be established, the legatees of that former administrator obtained an injunction. On the motion to dissolve this injunction: Held, 1. That it was immaterial whether the decree under which the receiver acted was final or not. The object and end of the injunction was, not to alter or modify the decree, but to secure the execution of that decree according to a sound construction of its import, and to prevent its violation under the semblance of being carried into execution. 2. The 760. A state court has no authority to enjoin decree only ascertained the amount and priori-a judgment in a circuit court of the United ties of the debt respectively, without averring States. M Keen v. Voorhees, 7 Cranch, 279; 2 assets, or directing payment, leaving it to the Cond. Rep. 492. administrator to determine on the applicability of the assets; and the receiver, being subordinate to the administrator, had no right to apply the assets, unless authorized by him to do so. The motion to dissolve was continued. Green et al. v. Hanberry's Ex'rs. et al., 2 Brockenb. 403. 761. By the provisions of the act of the legislature of New Jersey, authorizing the construction of the Camden and Amboy rail-road, certain acts were to be done by the company who were authorized to make the road, before they could enter upon the lands of individuals, and appropriate such parts of the same as might be necessary for the road. Before these were done, 755. A bill for an injunction to stay proceedings in a suit at law, accompanied with the usual affidavit, was filed in 1816 against the defend-according to law, the agents of the company ant, a Hong merchant at Canton. The court entered on the land of the complainant, and comordered that the service of the subpoena on the menced the making of the rail-road through the defendant's attorney in the action at law, should same. He applied to the circuit court of the be deemed sufficient, and the injunction was United States of New Jersey, for an injunction. granted; after five years, a motion was made to Mr. Justice Baldwin said: "The injury stated dissolve the injunction absolutely, without an by the complainant, as impending over his pro answer. Held, that the motion was unprece-perty, is its permanent occupation and appropriadented. If the injunction be granted until further answer and further order, which is the usual form, it is never dissolved until the answer comes in, even although the defendant should live abroad. Read v. Consequa, 4 Wash. C. C. R. 174. 756. An amendment of a bill upon which an injunction had been granted before answer filed, particularly if filed a short time after filing the original bill, will not affect the injunction granted on the original bill. Ibid. 757. Where the injunction is continued to the hearing, the court will not dissolve it, if it appears that the plaintiff has been guilty of intentional delay in prosecuting the cause. Because it would be most unreasonable to apply this rule to a case where the defendant resided abroad, beyond the reach of the process of the court, otherwise than as he may be affected by the service of it upon his attorney at law, under a special order of the court. The bill had remained unanswered for five years since it was filed, and four years since the order of the court that service of the subpoena upon the attorney at law should be deemed sufficient. It was further proved, that copies of the bill had been forwarded to the defendant at Canton, not only by his attorney at law, but by the plaintiff in equity, and that sufficient time had elapsed since, for his answer to have been transmitted to this court. But, as it did not appear that an appearance has been entered by that attorney, or that a pro forma attachment has been served upon tion to a continuing public use, which required the divestiture of his whole right, its transfer to the company in full property, and his inheritance to be destroyed as effectively as if he had never been its proprietor. No damages can restore him to his former condition; its value to him is not money, which money can replace, nor can there be any specific compensation or equivalent; his damages are not pecuniary; his objects in making his establishment were not profit, but repose, seclusion, and a resting-place for himself and family. If these objects are about to be defeated, if his rights of property are about to be destroyed without the authority of law, or if lawless danger impends over them by persons acting under colour of law, when the law gives them no power, or when it is abused, misapplied, exceeded, or not strictly pursued, and the act impending would subject the party committing it to damages in a court of law for a trespass, a court of equity will enjoin its commission. Bonaparte v. The Camden and Amboy Rail-Road Company, 1 Baldwin's C. C. R. 231. 762. A sale of land was made under a decree of a court of chancery, by commissioners appointed for that purpose. The tract was composed of three contiguous tracts, purchased by the defendant's intestate, of three different individuals. The commissioners exhibited the title-papers at the sale, expressing a certain quantity, and sold the lands, as directed by the decree, by the acre; undertaking, however, nei Injunction. ther for quantity nor title; declaring that the purchaser must buy at his own risk. A judgment was obtained against the purchasers on their bond; and they came into equity to enjoin this judgment, on the ground that the defendant's intestate was not entitled to, nor ever in possession of a single acre, under one of the three deeds that a certain portion of another tract had been surrendered by the representatives, previous to the sale in an adjustment of boundary; and that the third tract was also deficient. Held, that the judgment for the purchase-money ought to be enjoined to the extent of the deficiency of the land. Strodes v. Patton et al., 1 Brockenb. C. C. R. 228. 763. An injunction was granted, to restrain a party from recovering the balance of the consideration-money due for the purchase of land, to which the grantor's title had proved defective. Thomas v. Perry, Peters' C. C. R. 49. 764. A judge of the supreme court of the United States may, in vacation, allow a writ of injunction, in those cases only where it may be granted by the supreme or a circuit court. Livingston et al. v. Van Ingen et al., 4 Hall's Am. Law Jour. 56. 765. The supreme court refused an injunction to parties claiming lands in dispute between New York and Connecticut, as a decision; those claims could not affect the question of sovereignty between those states. New York v. Connecticut, 4 Dall. 1; 1 Cond. Rep. 203. 766. Where suits are pending, by parties claiming under the grants of one state, against parties claiming the same lands under the grants of another state, the states themselves are not interested in the decision of those suits, and an injunction ought not to issue on application of one of them. Ibid. 3, 6. 767. A bond executed in pursuance of articles of agreement, may, in equity, be restrained by those articles. Finley v. Lynn, 6 Cranch, 238; 2 Cond. Rep. 358. 768. It is no objection to an injunction, that the defendant acts under the authority of a law, if he exceeds or abuses his power, or if the law is unconstitutional. But it will not be granted if there is a reasonable doubt of the validity of the law, or the proper exercise of the power it confers; nor where there is a discretionary power given and exercised with judgment, and within the line prescribed. A party complaining will be referred to his remedy at law, or the special tribunal created by the law which gives the authority to do the act. Bonaparte v. The Camden and Amboy Rail-Road Co., 1 Baldwin's C. C. R. 218. 769. Under a charter to construct a rail-road from Camden to Amboy, with liberty to make a lateral road to Bordentown, and no route designated between Camden and Amboy, an injunction will not be granted, merely because the main road goes through Bordentown. The corporation must confine themselves to the route prescribed; but if there is a discretion which is not clearly abused, the court will not interfere by an injunction. Ibid. 227. 770. If the corporation has encroached on any public right at Bordentown, or usurped a franchise at a place not authorized by the charter, it is a proper case for the state to interfere by indictment, or quo warranto in a state court. But an individual is not entitled to an injunction against the taking his land for the road, if, by any reasonable construction of the charter, there is a power to locate the road through it. Ibid. 771. Where the charter authorizes an entry on land, for the purpose of locating the road, and directs the location to be made, and a survey of the route of the road to be deposited in the office of the secretary of state; and where the location is determined on, and the survey so deposited; the corporation may take possession of such land, use and occupy it for the construction of the road. The location and deposit of the survey, are conditions precedent to their authority to enter for the purpose of constructing; and their entry, for such purpose, is a proper subject for an injunction, if the condition is not performed. An entry on private property, for the mere purpose of locating a road, is not taking it. This power may be given by law without compensation, other than for any injury done to it, as the right remains in the owner. But where the divestiture of the owner's right is claimed, and its transfer is necessary for public use, by a permanent appropriation of the soil, compensa tion must be made. Ibid. 772. A law which directs the taking private property for public use, is not void because it contains no provisions for compensation, or the mode of ascertaining it; the law is valid if this is done by a subsequent law. But the execution of the law will be enjoined, until such provision is made by law, and the compensation paid. Ibid. 773. The payment must be simultaneous with the disseisin of the owner, and the appropriation of his property. The owner must not be put to his remedy. But, semble: If the compensation is ascertained, its payment certain, the security undoubted, and the means of collection summary, the construction of the road may be begun before actual payment. Ibid. 774. If an owner stands by, and knowingly suffers an innocent person to be misled by his silence, and to purchase his property without giving him notice of his title, a court of equity will treat it as a fraud upon the purchaser, and grant an injunction against the future assertion of that title by the owner. The Brig Sarah Ann, 2 Sumner's C. C. R. 206. 775. Notice of a motion to dissolve an injunction must be given, unless the cause has been set down for hearing on the motion, in a reasonable time before the motion is made. Wilkins v. Jordan, 3 Wash. C. C. R. 226. 776. Where a suit is pending at law, a court of equity will not grant an injunction on the application of the defendant, unless the party, praying relief, will confess judgment at law. Mathews v. Douglass, 1 Cooke, 136. 777. On a rule to show cause why an injunc tion to stay waste should not be granted, and why service of the subpœna upon the attorney of the defendant, in a suit depending against the Decree.-Bill of Review. defendant for slandering his title to the land, 786. There is no difference between a person mentioned in the bill, should not be considered who, on account of his residence beyond the as a service, the court said: If a judgment at law be obtained, the service of a subpoena on the attorney of the plaintiff, he being absent from the state, will be deemed good, where the subject in controversy is the same with the matter in the suit for which the judgment was rendered. Hitner v. Suckley, 2 Wash. C. C. R. 465. 10. Decree. 778. A complainant in equity cannot obtain a decree for more than he has asked in his bill. Simms v. Guthrie, 9 Cranch, 19; 3 Cond. Rep. 237. 779. There is no difference in respect to the conclusiveness of a judgment at law, and of a decree in chancery. Both are conclusive as to the facts directly in controversy. Hopkins v. Lee, 6 Wheat. 109; 5 Cond. Rep. 23. 780. A decree cannot be pronounced, on the testimony of a single witness, unaccompanied by corroborating circumstances, against a positive denial by the defendant of any matter directly charged by the bill, in the defendant's answer, or answer in support of his plea. Hughes v. Blake, 6 Wheat. 453; 5 Cond. Rep. 136. 781. The decree must conform to the allegations in the pleadings, as well as the proofs in the cause. Crocket v. Lee, 7 Wheat. 522; 5 Cond. Rep. 333. 782. A decree is binding and conclusive, with respect to the subject-matter on which it acts; but it does not affect the rights of third persons, who were not parties to the cause in which the decree was rendered. M'Call, Smilie, and Co., v. Harrison et al., 1 Brockenb. C. C. R. 126. seas, cannot be made answerable to the process of the court, and one who, by the laws of the United States, cannot be brought into court; and whenever, in the former case, a person so cir cumstanced need not be made a party, he need not be made a party in the latter case. Ibid. 787. Care will be taken by the court not to make a decree which will affect the person who is not party to the suit. Joy et al. v. Wirtz, 1 Wash. C. C. R. 417. 788. A bill being for a balance of an account, taken pro confesso, the account must be referred to the master. The decree is always nisi. Ibid. 789. If the bill were taken pro confesso, at one session of the circuit court, and service of the decree were made and returned at the same session, it may be made absolute at the following session; otherwise it cannot be made absolute until the third session of the court. Pendleton v. Evan's Ex'rs., 4 Wash. C. C. R. 391. 790. To entitle the plaintiff to take the bill pro confesso, on account of an answer not being filed within three months after the day of appearance and bill filed, the defendant should have been ruled to answer, and the cause should be set down. Ibid. 791. A decree which purports to divest the legal title from one in whom it is not vested, can have no effect on the title. Lessee of Harmer's Heirs v. Gwynne, 1 M'Lean's C. C. R. 48. 792. The regularity of a decree, when examined collaterally, cannot be inquired into. Carrington's Heirs v. Brents et al., 1 M'Lean's C. C. R. 175. 793. A decree in Virginia for the conveyance of land in Kentucky, cannot operate on the title. Ibid. 783. A decree of a court of chancery is erroneous, which, after ordering certain acts to be done, to enable a party to execute certain duties 794. Nor does a decree for the title to land in assigned to him, dismisses the bill; as it puts the Ohio, by a court in Kentucky, though a conveycause out of court, and renders the decree in-ance be executed by a commission, under the effectual; and it is no answer to this objection, statute of that state, give a title. Watts et al. v. that it appears by the record in the case, that Waddle et al., 1 M'Lean's C. C. R. 204. the acts ordered to be done have been performed, since the error is in the decree itself, and not in its execution. Greenleaf v. Queen, 1 Peters, 148. 784. The decree of the circuit court directed two of the defendants, in whom was the legal title to the lot of ground claimed by the plaintiff in the bill, to convey the same, and awarded costs, generally, against all the defendants. All the defendants appealed together to the supreme court, some of whom held the legal title to the lot, and all the defendants had an interest in defending this title, standing, as they did, in the relation of vendors and warrantees, and vendees. Although the defendants, against whom there is a decree for costs only, could not appeal from this decree for costs, yet, the reversal of the decree of the circuit court was made general as to all of the appellants, and the whole case opened. Finlay v. Hinde and Wife, 1 Peters, 247. 785. A decree perpetuating an injunction, leaving some matters of account open for further consideration, is not a final decree. Brown v. Swann, 9 Peters, 1. VOL. I.-29 11. Bill of Review. 795. Although bills of review are not strictly within any act of limitations prescribed by congress, yet a court of equity will adopt a rule, by analogy to the provisions of such statutes. Thomas v. Harvie's Heirs, 10 Wheat. 150; 6 Cond. Rep. 44. 796. Appeals in equity cases being limited by the twenty-second section of the judiciary act of September 24, 1789, ch. 20, and by the second section of the act of March 3d, 1803, ch. 353, to the period of five years after the decree, a bill of review will be considered as comprehended within the equity of the provision. Îbid. 797. It is within the discretion of the court to permit the filing of the bill of review after this period, when it is founded upon matter discovered since the decree, when it appears that the plaintiff is aggrieved by the decree on account of the error assigned. Ibid. 798. The Bank of the United States and others, under the authority of the act of the legislature of Maryland, passed in the year 1785, entitled 2 s Bill of Review. 809. A bill of review does not lie where the party seeks to set out a new title, and not to support the title in the original cause. It lies for the party who obtained the original decree in his own favour, if the original decree was injurious to him. Ibid. an act for enlarging the powers of the "high upon new matter not in issue in the original court of chancery," under which the real estates cause, but which shows the decree erroneous of persons descending to minors, and persons Ibid. non compos mentis, were authorized to be sold for the debts of the ancestor, proceeded against the real estate of A. R., for debts due by him; and in 1826, the estate was sold by a decree of the circuit court of the District of Columbia, exercising chancery jurisdiction. Afterwards, in 1828, some of the infant heirs of A. R., by their next friend, filed a bill of review against the administrator of A. R., the purchaser of his real estate, and others, stating various errors in the original suit, and in the decree of the court, and prayed that the same should be reversed. Held, that a bill of review can be sustained in the case. Bank of the United States v. Ritchie et al., 8 Peters, 128. 799. From the language of the fifth section of the act, some doubt was entertained whether the act conferred a personal power on the chancellor, or was to be construed as an extension of the jurisdiction of the court. If the former, it was supposed that a bill of review would not lie to a decree made in execution of the power. On inquiry, however, the supreme court were satisfied, that in Maryland, the act has been construed as an enlargement of jurisdiction, and that decrees for selling the lands of minors and lunatics, in the cases prescribed by it, have been treated by the court of appeals of that state, as the exercise of other equity powers. Ibid. 800. The principle is unquestionable, that all the parties to the original decree ought to join in the bill of review. Bank of the United States v. White et al., 8 Peters, 262. 801. Every bill of review must contain an allegation that the matter of fact on which it is founded, is new; the allegation is traversable by plea or answer, and the fact must be proved, if not admitted at the hearing. Dexter v. Arnold, 5 Mason's C. C. R. 309. 802. A bill of review lies in England, only when the decree has been enrolled under the great seal in chancery. If it has not been so enrolled, then, for error of law apparent upon the decree, the remedy is by petition for a rehearing. It lies for matter of error apparent on the face of the record. Ibid. 803. The error must appear on the decree and pleadings; for the evidence in the case at large cannot be examined, to ascertain whether the court misstated or misunderstood the fact. Ibid. 804. A bill of review also lies for newly discovered evidence material to the issue, if such evidence was not known until after the period in which it could be used in the cause. Ibid. 805. Query, If such newly discovered evidence must not be some written paper or evidence? Ibid. 806. Query, If newly discovered testimony of witnesses, going to confirm or to contradict the original testimony, is admissible? Ibid. 807. No bill of review will lie, if the newly discovered evidence could have been obtained, by reasonable diligence, before the original hearing. Ibid. 808. Query, Whether a bill of review lies 810. All decrees in the courts of the United States are deemed to be enrolled at the term in which they were passed. If the decree be not enrolled, a bill, in the nature of a bill of review, and not strictly a bill of review for newly discovered evidence, will lie. Ibid. 811. The granting of a bill of review for newly discovered evidence is matter of discretion, and must be brought forward by petition to the court. Such a petition must describe the new evidence distinctly and specifically; and when discovered, its bearing on the decree. It is not sufficient to state that the petitioner expects to prove certain acts. He must state the exact evidence to establish them. Ibid. 812. On the hearing of such a petition, affidavits may be admitted on each side, if necessary to explain the nature of the evidence. Ibid. 813. Upon a bill of review for newly discovered evidence, the other party may contravert, by plea or answer, that it is newly discovered. Ibid. 814. Under the provisions of an act of congress, passed the 26th May, 1824, proceedings were instituted in the superior court of the territory of Arkansas, by which a confirmation was claimed of a grant of land alleged to have been made to the petitioner, Sampeyreac, by the Spanish government, prior to the cession of Louisiana to the United States by the treaty of April 3d, 1803. The claim was opposed by the district attorney of the United States; and the court, after hearing evidence, decreed that the petitioner recover the land from the United States. Afterwards, the district attorney of the United States, proceeding on the authority of the act of 8th May, 1830, filed a bill of review, founded on the allegation that the original decree was obtained by fraud and surprise; that the documents produced in support of the claim of Sampeyreac were forged; and that the witnesses who had been examined to sustain the same were perjured. At a subsequent term, Stewart was obliged to become a defendant to the bill of review, and filed an answer, in which the fraud and forgery are denied, and in which he asserts that if the same were committed, he is ignorant thereof, and asserts that he is a bona fide purchaser of the land, for a valuable consideration, from one John J. Bowie, who conveyed to him the claim of Sampeyreac by deed, dated about the 22d October, 1828. On a final hearing, the court, being satisfied of the forgery, perjury and fraud, reversed the decree. Held, That these proceedings were legal, and were authorized by the act of the 5th of May, 1830. Sampeyreac et al. v. United States, 7 Peters, 222. 815. Almost every law providing a new remedy affects and operates upon causes of action |