do, or procuring or suffering some act to be done, in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual; a temporary injunction may be granted, to restrain such act. And where, during the pendency of an action, it shall appear by affidavit, that the defendant threatens, or is about to remove, or dispose of his property, with intent to defraud his creditors, a temporary injunction may be granted to restrain such removal or disposition.

The injunctions obtainable under this section may be classed under the two main divisions of preliminary or subsidiary; the former arising upon the case as stated upon the complaint, and forming part of the relief originally demanded; the latter obtainable in respect of subsequent acts of the defendant. A third description, which may be denominated as extraneous, arises under the last section, in respect of circumstances unconnected with the immediate controversy between the parties, but tending incidentally to defeat the plaintiff's rights. This branch of the subject is closely connected with that of proceedings supplementary to execution, as heretofore considered; and the powers here conferred, when exercised, give to those provisions a species of retrospective effect, by restraining, pendente lite, any disposition of the defendant's property, which might tend to defeat the remedy sought for by the suit, when ultimately obtained.

Proceeding with the consideration of these remedies, in the order above prescribed, the first which presents itself is the preliminary injunction, applied for at the outset of the suit, and forming part of the relief originally demanded. It will be seen that one main condition precedent to an application of this nature is, that the plaintiff's title to relief, and, in particular, to the injunction applied for, should appear by the complaint; unless this be the case it cannot be granted.

Thus, it has been held that an injunction is only obtainable by a plaintiff. A defendant, as defendant, is not competent to move for one, except in the very improbable case of his title to do so appearing by the complaint. His only method of proceeding is to serve a summons and complaint in the nature of cross-suit, and then proceed therein as plaintiff.—Thursby v. Mills, 1 C. R. 83.

An injunction will not be granted, unless it be shown that the plaintiff has some interest in the premises; and that the defend

ant is wrongfully in possession, and is committing actual injury. -Smith v. Reno, 6 How. 124; 1 C. R. (N. S.) 405.

An injunction cannot be granted under the first branch of sec. 219, as above cited, unless the complaint contain a demand for such injunction, as part of the relief sought; nor, it would seem, does the second branch of it aid the plaintiff in case of such an omission, inasmuch as that provision applies only to the case of a necessity arising during litigation, and not existing before it.-Hovey v. McCrea, 4 How. 31.

Nor can an injunction be granted, inconsistent with the relief prayed for in the complaint. Thus, where a complaint was founded on a trespass in cutting wood, and damages were claimed, an injunction to restrain the defendant from continuing the acts complained of, was dissolved on that ground; and, also, because the continuance of the trespass could not tend to render the judgment ineffectual, as proportionate damages would be recovered.-Townshend v. Tanner, 3 How. 384; 2 C. R. 6. The doctrine of waste of this description, is fully examined into in Kidd v. Dennison, 6 Barb. S. C. R. 9, and Van Wyck v. Alliger, 6 Barb. S. C. R. 507.

So, in Linden v. Hepburn, 3 Sandf. S. C. R. 668, 3 C. R. 165, 5 How. 188, 9 L. O. 80, it was decided that, under a complaint which prayed for judgment of forfeiture of a term, and also for an injunction to restrain the defendants from making alterations in the meantime; both forms of relief could not be granted in the same proceeding. An injunction which had there been granted, was accordingly ordered to be reversed, unless the plaintiffs stipulated not to take judgment for a forfeiture, amending their complaint so as to ask for damages. In that case it was to stand, as the case made by the complaint would have entitled them to an injunction, had they asked alone for that remedy.

In Olmstead v. Loomis, 6 Barb. S. C. R. 152, it was held that, to authorize an injunction, there must not only be a clear violation of the plaintiff's rights, but the rights themselves should be certain, and capable of being clearly ascertained.-See, also, Harrison v. Newton, 9 L. O. 347, below cited.

Where, however, an injunction forms part of the relief asked for, it will be granted to stay waste or trespass, if attended with irreparable mischief, or if the defendant be irresponsible; even where the plaintiff's right is in dispute and his title

doubtful; Spear v. Cutter, 4 How. 175; 5 Barb. S. C. R. 486: the defendant in that case being even in actual possession of the property, under a decision by a county judge, which decision had been carried to the supreme court for reversal, and was still undetermined.

In Livingston v. Hudson River R. R. Company, 3 C. R. 143, the following is stated to have been decided, though no facts are given—¿. e.': "It is improper to grant an injunction, where the question involved has been already decided at a special term, a distinct suit being an irregular mode of obtaining a review of that decision. Where the party has a sufficient remedy in an action for trespass, and it does not appear that the injury is irreparable, an injunction ought not to be granted."

An injunction cannot now be obtained in one suit, to stay the prosecution of another in the same court. The proper course is to make an application to stay proceedings in the suit which is sought to be stopped, upon the usual notice to the plaintiff in that suit.-Dederick v. Hoysradt, 4 How. 350. Such application cannot be made in the first of such suits; it can only be entertained in the second, on motion made in the proper district.-Farmers' Loan & Trust Co. v. Hunt, 1 C. R. (N. S.) 1.

An injunction will not be granted, on a complaint, the allegations in which are all verified on information and belief. If nothing is sworn to, of the party's own knowledge, that would entile him to an injunction, the application will be denied.-Jones v. Atterbury, 1 C. R. (N. S.) 87. See, also, Pomeroy v. Hindmarsh, below cited.

In respect to the subsidiary injunction in respect of matters in violation of the plaintiff's rights, but first arising during the continuance of the litigation; it seems, from Hovey v. McCrea, 4 How. 31, that not only must the act complained of necessarily be shown to have the tendency to render the judgment ineffectual, but that, in strictness, the necessity for such application must arise during the litigation. If existent at the commencement of the suit, it can only be properly applied for as part of the relief sought by the bill, on a prayer to that effect, in the usual form.

In Perkins v. Warren, 6 How. 341, it was laid down, at general Term, that an injunction of this last nature cannot be granted, when the act sought to be restrained has, in fact, been already done. It was likewise held that, where the statements

on which such injunction is sought, are denied on oath by the defendant, and unsupported by other evidence, it could not be maintained. "It was like the well settled equity practice, by which an injunction is dissolved, if the whole equity of the complaint is denied by the answer."

The statements as to the acts so done, and in respect of which a subsidiary injunction is sought, must be positive, and "facts and circumstances should be shown, so that the court can see that a fraud has been threatened, or is about to be perpetrated. This must be made to appear to the court, by the proper proof, and not by mere suspicion or belief. Injunctions are not issued upon mere information and belief.”—Pomeroy v. Hindmarsh, 5 How. 437. See, also, on this last point, Roome v. Webb, 3 How, 327; 1 C. R. 114. See, likewise, Jones v. Atterbury, above cited, and cases to the same effect, under the heads of Arrest and Attachment.

No case appears on the books, directly bearing on the granting of an extraneous injunction, pendente lite.

The following cases have reference to the subject of injunctions in general, without regard to the peculiar form of application :

- In Dillon v. Horn, 5 How. 35, 9 L. 129, an injunction and receiver were granted, at the suit of a general creditor of insolvent general partners, the debt not being denied.

In Hascall v. The Madison University, 8 Barb. S. C. R. 174, 1 C. R. (N. S.) 170, it was held that the founders of an institution, on condition of its being located in a specified place, might obtain an injunction against its unauthorized removal to another.

In Howard v. Henriquez, 3 Sandf. S. C. R. 725, an injunction was granted to restrain the defendants from making use of the name of the plaintiff's hotel. See, also, Stone v. Carlan, 3 3 C. R. 67.

In McCrackan v. Ware, 3 Sandf. S. C. R. 688, 1 C. R. (N. S.) 215, where cross suits had been instituted, respecting partnership property, to which both parties claimed an equal right, and an injunction and receiver had been granted in one suit, it was held to be as of course to grant the same remedy in the other, without special cause being shown.

An injunction will not, however, be granted to restrain the due use of partnership property, where security has been given, and

no abuse of such property is to be apprehended.-Dunbar v. Jarvis 8 Barb. S. C. R. 88.

Where the defendant was under obligation to divide the produce of a farm with the plaintiff annually, it was held that an injunction to restrain the former from dealing with the property, until a division was made, was improperly granted, there being no allegation of irresponsibility, but a mere fear expressed that an accurate account would not be kept.-Newbury v. Newbury, 6 How. 182; 10 L. O. 52; 1 C. R. (N. S.) 409.

An injunction cannot be obtained by a single member of a class of persons having a common interest in the same subject matter, in respect of an injury to such persons as a class, in an action brought by such party in his own name, and for his individual benefit.— Smith v. Lockwood, 10 L. O. 12.

In Harrison v. Newton, 9 L. O. 347, similar principles are laid down; and it was held that a party cannot obtain an injunction on grounds of the injury to the public, nor on a purpresture, unless the interest of the people imperatively require it. A private injury must be shown. It was also held, that to warrant an injunction, the plaintiff's interest must be clear: where his right is in any way doubtful, the court will not enjoin, unless the injury be clearly irreparable; nor will an injunction be granted, where the plaintiff has acquiesced, at any period, in the injury complained of.

In the same case, reported 9 L. O. 311, 1 C. R. (N. S.) 207, it was held, that where a building in process of erection, can be completed without additional injury to the plaintiff, a temporary injunction will not be maintained, nor will an injunction be granted, where the rights of the parties are a matter of doubt.

In Bennett v. The American Art Union Company, 10 L. 0. 132, the following propositions are laid down with reference to the granting of injunctions; that objections to the right of a plaintiff to maintain a suit, cannot be so waived by the consent of the parties, as to deprive the court of the power, or release it from the duty of considering them; that a plaintiff is never entitled to an injunction unless it is apparent that he has some interest, which may be injuriously affected by the act which he seeks to restrain, and that, where the plaintiff's claim arises from an illegal contract, to which he was a voluntary party, the maxim "in pari delicto, potior est conditio defendentis" will apply, and his complaint must be dismissed.

In Cure v. Crawford, 5 How. 293, 1 C. R. (N. S.) 18, the