plaintiff is entitled to immediate possession, the detention by the defendant is wrongful; if, however, no demand be made before the institution of the suit, and the original possession of the defendant were lawful, he may tender the property to the plaintiff, and, upon its delivery, by proper plea, discharge the action. But if, instead of this course, he denies the right of the plaintiff, and contests the action upon its merits, he can not, after a verdict against him, defeat a recovery on the ground that there was no demand. The writ is a demand, and defending the suit a refusal": Citizens' State Bank v. Chattanooga State Bank (Okla.), 101 Pac. 1118, 1120, quoting from Dearing v. Ford, 13 Smedes & M. (Miss.), 274, and referring for cases supporting this rule to 24 Am. & Eng. Ency. Law, 2d ed., p. 510, notes 4, 6. 11. Demand unnecessary where seizin is unlawful.-Where the seizin is unlawful, it is not necessary to allege a demand in replevin: Krebs Hop Co. v. Taylor, 52 Ore. 627, 97 Pac. 44, 45; Surles v. Sweeney, 11 Ore. 21, 4 Pac. 469; Moorhouse v. Donaca, 14 Ore. 430, 13 Pac. 112. 12. Defense.-Estoppel to deny taking. -Where to the complaint in an action in claim and delivery to recover the possession of certain cattle, the defendant answered and alleged the taking of the property described in the complaint, together with other property, in a chattel mortgage, and afterwards upon the trial offered to show that the stock did not answer the description contained in the complaint; held, that such evidence was properly rejected, inasmuch as by its answer the defendant had estopped itself from claiming that it had not taken the property described in the complaint, there being no request made to amend the answer: Kime v. Edgemont, 22 S. Dak. 630, 119 N. W. 1003. 13. Defense as demurrage tendered.— A defense to an action in replevin to recover from defendant, a railway corporation, under the laws of Missouri, the possession of certain specifically described lumber, which defense is based upon a count in which the defendant alleges a certain tender of demurrage as to each car, but fails to allege that the amount so tendered was a reasonable sum for such charges, and fails, in view of an interstate commerce regulation, to aver that the amounts were sufficient to meet the same; held, that the demurrer was properly sustained thereto: Darlington L. Co. v. Missouri Pacific R. Co., 216 Mo. 658, 116 S. W. 530, 537. 14. Action upon replevin bond.-In all suits on replevin bonds, it is provided in the Missouri statutes (Rev. Stats. 1899, 3924, Ann. Stats. 1906, p. 2165) that where the action is dismissed for want of jurisdiction, the defendant therein shall have a right of action on the bond, but that in such action the defendants (plaintiffs in the original action) "shall have the right to set up as a defense the ownership or the right of possession of the property involved in the original replevin suit": Bailey v. Dennis, 135 Mo. App. 93, 115 S. W. 506, 507. 15. Dismissed attachment suit not a bar to replevin.-The bringing of an attachment suit which is dismissed before judgment does not bar a suit in replevin arising out of the same transaction: Johnson-Brinkman Com. Co. V. Missouri Pacific R. Co., 126 Mo. 344, 28 S. W. 870, 26 L. R. A. 840, 47 Am. St. Rep. 675, approved in Tower v. Compton Hill I. Co., 192 Mo. 379, 91 S. W. 104. 16. The decision in replevin should respond to all the issues raised by the pleadings, and, as unlawful detainer is the gist of the action, should speak unequivocally as to that: Barnes v. Plessner, 137 Mo. App. 571, 119 S. W. 457, 458; Mercer v. James, 6 Neb. 406; Smith v. Smith, 17 Ore. 444, 21 Pac. 449. CHAPTER CXXIII. Injunction. Page § 424. Code provisions § 425. Complaints [or petitions] Form No. 1009. For injunction against waste... 1651 1659 1659 Form No. 1010. To restrain negotiation of note... 1660 1660 Form No. 1012. To enjoin obstruction maintained by a rail- 1662 1663 Form No. 1014. Order to show cause, and interlocutory in Form No. 1015. Temporary injunction pendente lite, condi- Form No. 1017. Undertaking on injunction ..... Form No. 1018. Order granting motion dissolving injunction. § 427. Annotations. 1666 1666 1667 1667 1668 1669 § 424. CODE PROVISIONS. Preventive relief, how granted. California, § 3420. Preventive relief is granted by injunction, provisional or final. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6118. North Dakota, Rev. Codes 1905, § 6628. South Dakota, Rev. Codes 1903, C. C. § 2359. Provisional injunctions. California, § 3421. Provisional injunctions are regulated by the Code of Civil Procedure. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 6119. North Dakota, Rev. Codes 1905, § 6629. South Dakota, Rev. Codes 1903, C. C. § 2360. Injunction to prevent breach of an obligation. California, § 3422. Except where otherwise provided by this title, a final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant: 1. Where pecuniary compensation would not afford adequate relief; 2. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief; 3. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; or, 4. Where the obligation arises from a trust. Code.) (Kerr's Cyc. Civ. The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a lowa, Ann. Code 1897, § 4354. Montana, Rev. Codes 1907, § 6120. North Dakota, Rev. Codes 1905, § 6630. South Dakota, Rev. Codes 1903, C. C. § 2361. a lowa, 4354. An injunction may be obtained as an independent remedy in an action by equitable proceedings, in all cases where such relief would have been granted in equity previous to the adoption of the code; and in all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action by ordinary proceedings, he may, in the same cause, pray and have a writ of injunction against the repetition or continuance of such breach of contract or other injury, or the commission of any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right, and he may also, in the same action, include a claim for damages or other redress. When injunction cannot be granted. California, § 3423. An injunction cannot be granted: 1. To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings. 2. To stay proceedings in a court of the United States. .3. To stay proceedings in another state upon a judgment of a court of that state. 4. To prevent the execution of a public statute, by officers of the law, for the public benefit. 5. To prevent the breach of a contract, the performance of which would not be specifically enforced. 6. To prevent the exercise of a public or private office, in a lawful manner, by the person in possession. 7. To prevent a legislative act by a municipal corporation. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: & Arizona, Rev. Stats. 1901, ¶ 2743. b Arkansas, Dig. of Stats. 1904 (Kirby), € 3986. clowa, Ann. Code 1897, § 4364. Montana, Rev. Codes 1907, § 6121. North Dakota, Rev. Codes 1905, § 6631. South Dakota, Rev. Codes 1903, C. C. § 2362. & Washington, Code 1910 (Rem. & Bal.), § 471. e Wyoming, Rev. Stats. 1899, § 3802. & Arizona, ¶ 2743. No injunction shall be granted to stay any judgment or proceedings at law, except so much of the recovery or cause of action as the complainant shall in his complaint show himself equitably entitled to be relieved against, and so much as will cover the costs. b Arkansas, § 3986. An injunction to stay proceedings on a judgment or final order of a court shall not be granted in an action brought by the party seeking the injunction in any other court than that in which the judgment or order was rendered or made. Nor shall such injunction be granted unless the party applying therefor makes affidavit that no injunction has been previously granted to stay the proceedings on such judgment or order. clowa, § 4364. When proceedings in a civil action, or on a judgment or final order, are sought to be enjoined, the ac tion must be brought in the county and court in which such action is pending or the judgment or order was obtained, unless such judgment or final order is obtained in the supreme court, in which case the action must be brought in the county and court from which the case was taken to the supreme court. d Washington, § 471. The party seeking to vacate or modify a judgment or order may obtain an injunction suspending proceedings on the whole or part thereof, which injunction may be granted by the court or the judge, upon its being rendered probable, by affidavit or petition sworn to, or by exhibition of the record, that the party is entitled to have such judgment or order vacated or modified. e Wyoming, § 3802, substantially same as Washington § 471, except in line 7, after "affidavit" omit "or petition sworn to" before "or by exhibition." Injunction-When it may and may not be granted. California, § 526. An injunction may be granted in the following cases: 1. When it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists Jury's Pl.-105. in restraining the commission or continuance of the act complained of, either for a limited period or perpetually; 2. When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action; 3. When it appears, during the litigation, that a party to the action. is doing, or threatens, or is about to do, or is procuring or suffering. to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual; 4. When pecuniary compensation would not afford adequate relief; 5. Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief; 6. Where the restraint is necessary to prevent a multiplicity of judicial proceedings; 7. Where the obligation arises from a trust. [When cannot be granted.] An injunction cannot be granted: 1. To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings; 2. To stay proceedings in a court of the United States; 3. To stay proceedings in another state upon a judgment of a court of that state; 4. To prevent the execution of a public statute by officers of the law for the public benefit; 5. To prevent the breach of a contract, the performance of which would not be specifically enforced; 6. To prevent the exercise of a public or private office, in a lawful manner, by the person in possession; 7. To prevent a legislative act by a municipal corporation. (Kerr's Cyc. Code Civ. Proc. Amended March 16, 1907, Stats. and Amdts. 1907, p. 341.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: a Alaska, Ann. Codes 1907, C. C. P. (Carter), § 386. b Arizona, Rev. Stats. 1901, 2742. c Arkansas, Dig. of Stats. 1904 (Kirby), § 3965. d Colorado, Rev. Stats. 1908, C. C. P. § 159. • Idaho, Rev. Codes 1909, § 4288. flowa, Ann. Code 1897, § 4354. & Kansas, Gen. Stats. 1905 (Dassler), § 5133. h Minnesota, Rev. Laws 1905, § 4259. 1 Missouri, Ann. Stats. 1906, § 3630. 1 Montana, Rev. |