18. Where the complaint and evidence show that a defendant is in possession of a tract of land, and claiming and holding under an adverse title, and the weight of evidence is in favor of his title, an injunction will not be granted on the application of a party claiming title to the land, to prevent the defendant from cutting timber thereon. Smith v. Wilson, 10 Cal. 528.

19. An injunction will not be sustained to stay proceedings under a judgment obtained by neglect of a party or counsel, where if the neglect were excusable, full relief might have been had on motion in the original action. Borland v. Thornton, 12 ib. 440.

20. The destruction of water courses are such grievances as call for the equitable remedy by injunction. Corning v. Troy Factory, 6 How. Pr. 89.

21. An injunction cannot issue in an action for a breach of covenant or agreement, restraining the defendant from carrying on a certain trade or profession within a certain time, in a certain place, where a certain sum as a penalty is named in the agreement, whether the defendant is solvent or insolvent. Vincent v. King, 13 ib. 234.

22. An injunction to restrain an apprehended trespass, is never allowed, except under very special circumstances. Mayor of New York v. Conover, 5 Abbott, 171.

112. An injunction may be granted in the following cases:

1st. When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.

2d. When it shall appear by the complaint or affidavit that the commission or continuance of some act during the litigation would produce great or irreparable [injury] to the plaintiff.

3d. When it shall appear during the litigation that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights, respecting the subject of the action and tending to render the judgment ineffectual.

1. An injunction will not be granted when the plaintiff has another remedy of which he can avail himself without restraining the defendant. Bedell v. McClellan, 11 How. Pr. 172.

2. An injunction can only issue upon a complaint filed. Affidavits without a complaint are no proper basis for an order. People v. Judges of N. Y. Common Pleas, 3 Abbott, 181.

3. To entitle plaintiff to an injunction, his complaint must show that he will be entitled to final relief. Crocker v. Baker, 3 ib. 182.

4. 1st. A perpetual injunction to restrain defendants from raising their dam higher than the point designated was allowed. Ramsay v. Chandler, 3 Cal. 90.

5. An injunction to restrain the collection of a tax illegally laid, if there is a remedy at law, will not be granted. Robinson v. Gaar, 6 Cal. 273; Fremont v. Early, 11 ib.

361; Ritter v. Patch, 12 Cal. 298; Wilson v. Mayor of New York, 1 Abbott, 4; Chemical Bank v. same, ib. 79; N. Y. Life Ins. Co. v. same, ib. 250.

6. Courts of equity will only interfere to enjoin a judgment at law, rendered against a party by reason of fraud or accident, unmixed with any fault or negligence of himself or his agents. Phelps v. Peabody, 7 Cal. 50.

7. In an action to restrain the issuance of bonds by an incorporated company, the persons to whom those bonds are to be issued are necessary parties to such action. Hutchinson v. Burr, 12 ib. 103; Patterson v. Board of Supervisors of Yuba Co., ib. 105.

8. An injunction cannot be granted affecting the rights and privileges of parties who have no opportunity to be heard, and who are not secured by such bond as would compensate them for the injury and loss they might sustain in case the writ was improperly issued. Patterson v. Board of Supervisors of Yuba Co., 12 ib. 105.

9. Where a tax deed is made prima facie evidence, then it would be a cloud upon the title, and an injunction would lie to restrain the selling by the officer. Palmer v. Bolling, 8 ib. 384.

10. There is no occasion that the plaintiff should first establish his title at law, before he can obtain the injunction, when the averment of his right in the complaint is admitted by demurrer. Tuolumne Water Co. v. Chapman, 8 ib. 392.

11. An injunction will sometimes be allowed to prevent a multiplicity of suits. Woodruff v. Fisher, 17 Barb. 224.

12. A party who moves for a new trial and fails, cannot upon the same state of facts apply to the same judge for an injunction and re-try his case in equity. Collins v. Butler, Cal. Oct. T. 1859.

13. An injunction will be granted to prevent and restrain a nuisance at the instance of any private individual who sustains a special injury from it. Penniman v. New York Balance Co., 13 ib. 40.

14. A party enjoined cannot stand by and see the injunction violated by a partner at their common expense and for their common benefit. It should be obeyed in letter and spirit. Neale v. Osborne, 15 How. Pr. 81.

15. An injunction may be granted to restrain proceedings on judgment, and in many cases this course is preferable to granting an order in the suit sought to be stayed. Watt v. Rogers, 2 Abbott, 261.

16. The courts of this state have no power to restrain by injunction the acts of officers of the state who are proceeding under authority of a law of the state. That such law is unconstitutional forms no ground for granting such injunction. Thompson v. Commissioners of the Canal Fund, 2 Abbott, 248.

17. An injunction should not be granted at the commencement of a suit brought to enjoin the defendant from the use of plaintiff's trade mark, and recover damages, unless the legal right of plaintiff and the violation of it by defendants, are very clear. Merrimac Manufacturing Co. v. Garner, 2 Abbott, 318.

18. 2d. The allegation, irreparable injury of itself, unless the facts are shown to the court, is insufficient. Dewitt v. Hays, 2 Cal. 463; Merced Mining Co. v. Fremont, 7 ib. 317; Branch Turnpike Co. v. Supervisors Yuba Co. Cal. April T. 1859.

19. The nuisance complained of must cause irremediable mischief, or such an injury

as cannot be compensated by damages. Gregory v. Hay, 3 Cal. 332; Middleton v. Franklin, ib. 238; Waldron v. Marsh, 5 ib. 119; Marshall v. Peters, 12 How. Pr. 218. 20. An injunction under the second division can only be for acts done or threatened, pending the litigation. Malcolm v. Miller, 6 How. Pr. 456; Sebring v. Lant, 9 ib. 347. 21. 3d. A sheriff may be enjoined from selling real property belonging to the wife, under an execution against the husband. Alverson v. Jones, 10 Cal. 9.

22. The effect of the temporary injunction under the third division is not to restrain any removal or disposition whatever of defendant's property, but only such as would defraud the creditors. Brewster v. Hodges, 1 Duer, 609.

113. The injunction may be granted at the time of issuing the summons upon the complaint; and at any time afterwards, before judgment, upon affidavits. The complaint in the one case, and the affidavits in the other, shall show satisfactorily that sufficient grounds exist therefor. No injunction shall be granted on the complaint, unless it be verified by the oath of the plaintiff, or some one in his behalf, that he, the person making the oath, has read the complaint, or heard the complaint read, and knows the contents thereof, and the same is true of his own knowledge, except the matters therein stated on information and belief, and that as to those matters he believes it to be true. When granted on the complaint, a copy of the complaint and verification attached shall be served with the injunction: when granted upon affidavit, a copy of the affidavit shall be served with the injunction.

For verification, see notes to section 55.

1. The order of injunction must be served by copy. Verbal notice is insufficient, unless the party be in court and hear the order pronounced. Elliott v. Osborne, 1 Cal. 396.

2. The usual practice is to present the complaint in advance of the filing, to the judge, and obtain the order or allowance of the writ, when sought upon the complaint itself, and such practice is regular and not in conflict with the statute. Heyman v. Landers, 12 ib. 107.

3. An injunction can only be granted or sustained upon affidavit. plaint must be verified, or upon complaint with an affidavit filed. How. Pr. 124; Minor v. Terry, ib. 208.

Either the comSmith v. Reno, 6

4. The original injunction order must be shown to a party. Service of a copy only, with a notice that it is a copy of the original, is not sufficient. Watson v. Fuller, 9

ib. 425.

5. The injunction may be granted on a verified complaint, if the facts are alleged positively and not on information and belief alone. Crocker v. Baker, 3 Abbott, 182; Levy v. Ely, 15 How. Pr. 395; 6 Abbott, 89.

114. An injunction shall not be allowed after the defendant has

answered, unless upon notice, or upon an order to show cause; but in such case the defendant may be restrained until the decision of the court or judge, granting or refusing the injunction.

115. On granting an injunction, the court or judge shall require, except where the people of the state are a party plaintiff, a written undertaking, on the part of the plaintiff, with sufficient sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the court finally decide that the plaintiff was not entitled thereto.

See section 650.

1. An injunction order is inoperative unless the undertaking be given. Elliott v. Osborne, 1 Cal. 396.

2. The court may order a reference to ascertain the damages sustained by an injunction issued without cause. Russell v. Elliott, 2 Cal. 245; Sullivan v. Judah, 4 Paige,

444.

3. In suit on undertaking, counsel fees in having injunction dissolved, allowed. Ah Thaie v. Quan Wan, 3 Cal. 216; Coates v. Coates, 1 Duer, 664.

4. A party filing an undertaking to obtain an injunction, is deemed to have waived the right to insist on a trial by jury, and consented that the damages may be ascertained in the mode prescribed by the statute; and an order of reference is no violation of the constitutional right to trial by jury. Russell v. Elliott, 2 Cal. 245.

5. For suits on undertakings, see Morgan v. Thrift, 2 Cal. 562; Gelston v. Whitesides, 3 ib. 309; Cunningham v. Breed, 4 ib. 384.

6. An action on the case will not lie for improperly suing out an injunction, unless it is charged in the declaration as abuse, or without probable cause. The remedy is on the appeal bond. Robinson v. Kellum, 6 ib. 399.

7. This bond, though given to all the obligees by name, and using no word directly expressing a several obligation, yet necessarily creates a several liability, the design of it being to secure each and all of the obligees from damages or injury. Summers v. Farish, 10 ib. 347.

8. In an action against the sureties on a bond given to pay all costs and damages awarded, the complaint must set out the damages the plaintiff was awarded. Tarpey v. Shillenberger, 10 ib. 390.

9. If the protection by the security substituted should become entirely lost by reason of the insolvency of all the obligors, the right to the injunction would be restored. Willett v. Stringer, 15 How. Pr. 310.

116. If the court or judge deem it proper that the defendant, or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified

time and place, why the injunction should not be granted; and the defendant may, in the mean time, be restrained.

1. The interim referred to was designed to embrace the period intervening between the date of the mandate and the hearing of the application. Although a certain day may be designated, yet the time may be continued until the court disposes of the application, and the restraining order remains in full force. Prader v. Grim, Cal. April T. 1859.

2. If the court deny the injunction, and an appeal be taken from that order, the party cannot have the restraining order continued, by giving bond or otherwise. Hicks v. Michael, Cal. Jan. T. 1860.

117. An injunction to suspend the general and ordinary business of a corporation, shall not be granted except by the court; nor shall it be granted without due notice of the application therefor to the proper officers of the corporation, except when the people of this state are a party to the proceeding.

118. If an injunction be granted without notice, the defendant, at any time before the trial, may apply upon reasonable notice, to the judge who granted the injunction, or to the court in which the action is brought, to dissolve or modify the same. The application may be made upon the complaint and the affidavit on which the injunction was granted, or upon affidavit on the part of the defendant, with or without the answer. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits, or other evidence, in addition to those on which the injunction was granted.

1. The court may modify the injunction on a motion er parte, if it were granted ex parte, upon filing a bond by the defendant in the sum specified. Fremont v. Merced Mining Co., 9 Cal. 18; Borland v. Thornton, 12 ib. 441.

2. If the answer denies the equities of the bill, the general rule is to dissolve the injunction. Gardner v. Perkins, 9 Cal. 553 ; Burnett v. Whitesides, Cal. April T. 1859.

3. The privilege of moving to dissolve an injunction upon answer is confined to cases where the injunction is originally granted without notice to adverse party. Natoma Water Co. v. Clarkin, Cal. October T. 1859.

4. A motion to vacate an injunction once denied, cannot be renewed unless leave be reserved or some new ground in vacating arise. Hoffman v. Livingston, 1 John. Ch. R. 211.

5. When an injunction is granted on a verified complaint, and defendant moves on a verified answer to dissolve the injunction, the plaintiff is entitled, on the motion, to read additional affidavits in support of the complaint, if the defendant by his answer