authorities,1 yet the exercise of the right is guarded with much caution, and it is only to be permitted under such peculiar circumstances as indicate that the promotion of justice requires it." And where an injunction has been dissolved for want of equity in the bill an ex parte injunction will not be granted upon an amended bill, or upon a new one supplying the equity of the old, but the court will require notice to the opposite party.3 Where an injunction has already been granted and is still in force, its repetition is derogatory to the authority of the court and will not be allowed. And where the relief sought is purely preventive a court of equity will not continue or perpetuate an injunction after the cause for which it was granted has been removed and the rights of complainant are no longer in danger. But, though the writ was improperly granted in the first instance, if it has been allowed to stand until final hearing, it is not error then to perpetuate it, sufficient equity appearing." 1 Buckley v. Corse, Saxt. 504. 2 Calderwood v. Trent, 9 Rob. La. 227. Hornor. Leeds, 2 Stockt. 86. The reason for the rule is forcibly stated in this case by Williamson, Chancellor, as follows: "I lay down the rule that where an injunction has been dissolved for want of equity in the bill, this court ought not to grant an ex parte injunction upon an amended bill, or upon a new bill supplying that equity. If a complainant is willing to swear to a case fitting the opinion of the court, the rights of a defendant should not be interfered with upon such a bill, without affording the defendant an opportunity of being first heard." 4 Livingston v. Gibbons, 4 Johns. Ch. 571. Б Wiswell . First Congregational Church, 14 Ohio St. 81. • Clark v. Young, 2 B. Mon. 57. CHAPTER II. OF INJUNCTIONS TO RESTRAIN PROCEEDINGS AT LAW BEFORE JUDGMENT. § 44. Courts of equity do not restrain courts of law, but only parties litigant. 45. General rule, and illustrations thereof. 46. Suit will not be enjoined where defense may be made at law. 47. Parties will be confined to the original forum. 48. Of suits in equity. 49. Bill should show state of the pleadings at law. 50. Of the parties to the suit. 51. Where application should be made to the court in action pending. 52. Of confessing judgment before obtaining injunction. 53. Bill of peace. 54. Injunction not allowed merely to obtain consolidation of suits. § 44. No branch of the jurisdiction of equity by injunction is so frequently invoked as that which pertains to the restraint of judicial proceedings, both before and after judgment. In the exercise of this jurisdiction courts of equity claim no supremacy over courts of law, since the injunction is in no sense a prohibition upon the action of the legal tribunals. The injunction is directed, not to the court, but to the litigant parties, and in no manner denies the jurisdiction of the legal tribunal. It merely seeks to control the person to whom it is addressed, and to prevent him from using the process of courts of law where it would be against conscience to allow him to proceed. It is granted on the ground that an unfair use is being made of the legal forum which, from circumstances of which equity alone can take cognizance, should be restrained lest an injury be committed wholly remediless at law.1 45. In general it may be said that where through fraud, accident, or mistake, such an advantage will be gained in a suit at law as will render it an instrument of great injustice, and it is against conscience to allow the suit to proceed, equity will interfere by injunction. Thus, a suit on an indemnity bond has been enjoined where it had been given through mistake, the obligor supposing he was signing a recognizance. And where the contract on which a suit is brought was entered into on mistaken and false representations, the proceedings may be enjoined.4 So a suit upon promissory notes is properly enjoined where it appears that the notes were given in exchange for an interest in certain other notes which had been obtained through fraudulent representations in a sale of patent rights. And where fraud is relied upon as the ground for relief, it is not necessary that the facts should be proved precisely as alleged, but it will be sufficient if they are proved in substance. So undue influence exercised upon the maker of a note, who was a person of weak intellect, and constantly given to intoxication, has been deemed sufficient ground for restraining a suit upon the note. But fraudulent representations made 1 2 Story's Eq., § 875; Hill v. Turner, 1 Atk. 516. In Williams v. Sadler 4 Jones Eq. 378, it is held that the ordinary and usual course is to allow proceedings as far as judgment, and to interfere only for the purpose of enjoining the execution. I am not aware of any other authority holding this doctrine, and it may be regarded as the well-settled practice of courts of equity to interfere, on proper cause shown, at any stage of the proceedings, without waiting for judgment to be had. 22 Story's Eq., §885; Sacket v. Hillhouse, 5 Day, 551; Dale v. Roosevelt, 5 Johns. Ch. 174; Field v. Cory, 3 Halst. Ch. 574. Field . Cory, 3 Halst. Ch. 574. 4 Dale v. Roosevelt, 5 Johns. Ch. 174. Sacket o. Hillhouse, 5 Day, 551. • Id. 'Rembert v. Brown, 17 Ala. 667. by the payee to the maker of a promissory note, will not warrant an injunction against a suit by a bona fide holder of the note for valuable consideration. Nor will the prosecution of a writ of error to a judgment be enjoined because of mistakes in the bill of exceptions, no fraud being shown. The injunction will be dissolved where the answer fully disproves the allegations of fraud, and shows a bona fide debt and full consideration, it not appearing that the suits, though several in number, were vexatious or malicious.3 And to warrant the interference a clearly-established case of fraud, accident, or mistake, must be shown sufficient to deprive the person aggrieved of a defense at law. The loss of one conveyance in a chain of title is sufficient to warrant equity in enjoining proceedings at law to get possession of the premises, as well on the ground of accident whereby a defense can not be perfectly made at law, as from the necessity of preventing a cloud upon title." § 46. The most frequent ground for refusing relief by injunction against a suit at law is that the defense urged may be used in the action at law itself, without resort to equity. And it may be laid down as a general rule that legal proceedings will not be enjoined on grounds of which the person Butch . Lash, 4 Iowa, 215. But see, contra, Rogers v. Cross, 3 Chand. 34. Butch . Lash illustrates very clearly some of the grounds upon which equity will interpose to stay proceedings at law. Complainant in the injunction suit being sued at law for the recovery of certain real estate, and his chain of title being defective, one deed therein having been lost before recorded, the court below decreed a perpetual injunction against the proceedings at law. The decree was affirmed by the appellate court, Wright, C. J., saying: "The respondent's action was brought to test the legal title to this property, and in the legal forum he was entitled to succeed, if his title, in this respect, was superior to that of complainant. Owing to the loss and failure to record the deed to Linder, complainant was unable to show a complete chain by the title papers or record. And, under such circumstances, we think he was fully justified in asking equitable aid to ascertain the existence of such deed. We can not say that his defense would have been adequate and complete at law. But a further and conclusive consideration in favor of the bill, is, that complainant aggrieved may avail himself in defense of the action at law.1 In illustration of the rule, where complainant files a bill to set aside certain securities as void, and is afterward sued at law upon the securities, having a good defense to the action at law, he will not be allowed to enjoin the prosecution of such suit until after he has obtained a decree in equity. Nor, in such case, will the neglect of the defendant in the chancery suit to object to the jurisdiction of the court, entitle complainant to a preliminary injunction restraining the suit at law. So proceedings at law will not be enjoined on the ground of want of jurisdiction in the court in which the proceedings are instituted, since such want of jurisdiction can be relied upon in defense of the action at law. Nor will the fact that plaintiff at law has no cause of action, as in an action of forcible entry and detainer that he has no title, warrant relief in equity against the suit. So an injunction will be refused to a suit on a note, the only equity relied upon being that a certain payment has not been credited, and complainant making no tender of the remainder." Nor does the fact that the proceedings sought to be enjoined are in a court of equity alter or vary the rule, since if the person aggrieved has a good defense to the equitable action it is equally as competent for him to urge such * asked equitable interposition on the ground of accident, and to remove a cloud upon his title. To relieve against an injury resulting from accident, is a very ancient branch of equitable jurisdiction. * * The loss of the deed is expressly shown by the complainant's sworn bill; there is no pretense that it occurred from any negligence or misconduct on his part. The respondent had procured a conveyance from the county, which was a cloud upon complainant's title; and to avoid the effect of this loss, and remove this cloud, he might reasonably and properly ask relief at the hands of the chancellor." 1 New York etc. v. American etc., 11 Paige, 384; Beauchamp v. Putnam 34 Ill. 378; Smith v. Short, 11 Iowa, 523; Powell v. Chamberlain, 22 Geo 123; Gibson v. Moore, 22 Tex. 611. But see, contra, Bullitt's Ex'rs. v. Song ster's Adm'rs.,3 Munf. 55. 2 New York etc. v. American etc. 11 Paige, 384. 8 Id. Gibson v. Moore, 22 Tex. 611. Chadoin v. Magee, 20 Tex. 476. Powell v. Chamberlain, 22 Geo. 123. |