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13. To stay proceedings on power of sale in a mortgage.

14. For the enjoyment of a privilege.

15. Against commissioners charged with partiality.

I. To stay Proceedings in a Court of Law.

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Special Contents.

1. No injunction but on motion or petition.

II. When certain masters may grant them.

III. After verdict, the amount thereof, and of costs must be deposited.

IV. To stay a trial at law; when to be taken out, and what deposit to be made

V. Order to be entered before the injunction issues.

VI. Decisions on injunctions to stay proceedings at law.

An injunction to stay proceedings in a court of law, `issues by the order and under the seal of the court, not on account of any supremacy which the court of Chancery assumes over a court of law, but in respect of its jurisdiction in a court of equity, by which it controuls the party, and not the court from proceeding at law.(a) The court of Chancery, in these cases, admits the jurisdiction of the court of common law, and the ground on which it issues the injunction is, that the parties are making use of a jurisdiction contrary to equity and good conscience.(b)

tion to issue

or petition.

The 41st rule of court provides, that no injunction 1. No injuneother than to stay proceedings at law, can issue but on but on motion motion or petition to the Chancellor for that purpose; and no injunction to stay proceedings at law, or writ of ne exeat, shall hereafter issue but on like motion or

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2.

tain masters

2 When cer petition; but that in the absence of the Chancellor, may grant in such master permanently residing in the city of Newjunctions.

York, and such master permanently residing in the city of Albany, and such master permanently residing in or near the village of Utica, in the county of Oneida, as the Chancellor shall for that purpose, by order, designate; or if such designation shall not have been made, or the master at any of the said places so designated shall die, or be incapable by reasons of sickness or other contingency of acting, or absent from the city or place in which he resides; then the senior master permanently residing in such city, and the master residing in or nearest to the village of Utica, in the county of Oneida, shall respectively exercise the power of certifying that writs of injunction to stay proceedings at law, or of writs of ne exeat ought to issue ;(c) and that the defendant may as well before as after answer, on due notice, and upon the matter of the bill only, move the Chancellor for a dissolution of the injunction.(d) 3. After ver- And it is further provided by the 42d rule of court, mount thereof, that an injunction shall not issue to stay proceedings must be depo- at law, in any personal action in which a verdict shall

diet, the a

sited.

4. To stay a

trial at law,

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have been given, unless a sum of money, equal to the amount for which the verdict was given, with costs of suit, shall be first deposited by the party praying such injunction; and that no injunction shall issue to stay proceedings at law, in any mixed action after verdict, unless the party praying the same shall deposit such sum of money, as shall be at least equal to the costs of the plaintiff accrued in such suit.(e)

And it is further provided by the 43d rule of court, when injune- that whenever a cause shall be at issue in any court of

tion to be ta

ken out, and common law, no injunction shall issue to stay a trial at

what deposit to be made.

(c) Rule 41.

(d) Rule 75.

(e) Rule 42.

law, unless such injunction shall have been actually ta ken out thirty days previous to the sitting of the court, in the county in which the trial is to be had, unless special cause be shown to the Chancellor, or unless it shall appear to the master, certifying that an injunc tion is proper, that the cause for issuing such an injunction has arisen within thirty days, and the bill was filed, and the injunction applied for, within a reasonable time after the complainant was apprised of the circumstance on which his application is founded, and in such case, an injunction shall not issue, unless the person applying for it shall deposit one hundred dollars, to be taken out of the court in the whole or in part by the defendant in equity, as the court shall or der, on motion, as a compensation for the charge and expense of preparing for the trial at law, if it shall appear that such party has been improperly delayed.(f)

393

5. Order to be entered with

assistant regis

junction issues.

After an injunction is allowed by the Chancellor or master, as we have before stated, an order must be en- the register or tered with the register or assistant register for that pur- ter before inpose; the clerk will then grant the process on receiving a certified copy of the order, but not without, as was heretofore done on the bill being produced to him, But still in cases of with the allowance endorsed. great urgency, and where the delay would be injurious, the clerk may, in his discretion, issue the injunction, and receive the order from the register afterwards upon which it was grounded.

An injunction will not be granted to stay a sale under an execution, on the ground that the judgment has been fully paid and satisfied, for the party has a prompt and adequate remedy at law.(g) Nor will it

(f) Rule 43.

(g) Lansing v. Eddy, 1 Johns. Chan. Rep. 49.

6. Decisions

thereon.

be granted on the charge of usury, and the party seeks a discovery of the usury, and a return of the excess beyond the lawful interest, for the usury would have been a good defence at law and no reason was given, why the defendant did not seek the discovery while the suit at law was pending.(h) Chancery will not relieve against a judgment at law, unless the defendant was ignorant of the fact in question pending the suit, or it could not be received as a defence.(i) When a court of common law, after a full consideration of all the circumstances of the case, refused to allow two judgments to be set off, this court refused to sustain a bill filed for an injunction and a set off; but this was reversed in the Court of Errors.(j)

An injunction will not be granted to stay proceedings at law on a judgment, on the ground that the defendant at law was prevented by public business from making due preparations for and attending at the trial, and that the plaintiff had, on the evidence of the witness whom he bad suborned to swear falsely, recovered a verdict for a much larger sum in damages than he was justly entitled to, and that the Supreme Court had refused to grant a new trial in the cause.(k)

The cases of relief in equity against judgments at law, are when the fraud goes to the whole judgment, and not to the mere excess of damages.

An injunction will not be granted to stay proceedings at law, on a bill for discovery on a charge of usury, unless the plaintiff tenders to bring into court

(h) Lansing v. Eddy, 1 Johns. Chan. 91. 14 Johns. Rep. 68. Rep. 49

(i) Ibid.

) Simpson v. Hart, 1 Johns. Ch, Rep.

(k) Smith & Mead v. Lowry, 1 Johns, Chan. Rep. 380,

the money actually lent, and the lawful interest thereon.(1)

The court will not grant an injunction to stay an action at law on an award, on the ground that the plaintiff was surprised, by the principal witness for the defendant swearing falsely before the arbitrators.(m)

Where a defendant in action at law, has not used due diligence in making his defence, or applying for a discovery, he cannot, after a verdict against him, obtain the aid of the court of Chancery to stay the proceedings at law.(n)

A court of Chancery will not sustain a bill of discovery and injunction, merely to procure such admission by the party, as might be read in mitigation of damages in an action of trespass at law, unless perhaps in very special cases.(o)

In injunction causes, where the title at law is admitted, or no discovery is sought for, to aid a defence at law, an injunction will be granted upon terms only, so as to leave the party to proceed to trial and judgment at law.(p)

Relief will not be granted for the purpose of new trial at law, where the party lost his opportunity of defence by his own negligence.(g)

Where a rule for a new trial was granted by the Supreme Court, on conditions which the party failed to perform, within the time prescribed by the rule, this court refused its aid, it not appearing that the failure

(1) Rodgers v. Rathbun, 1 Johns. Ch. Rep. 367.

(m), Tupper and another v. Powell and others, 1 Johns. Chan. Rep. 439.

(n) Barker v. Elkins & Simpson, 1 Johns. Chan. Rep. 465.

(0) Gelston & Schenck v. Hoyt, 1 Johns. Chan. Rep. 543.

(p) Ham v. Schuyler and others, 2 Johns. Chan. Rep. 140

(9) Dodge and others v. Strong, 2 Johns. Chan. Rep. 228.

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