ery, and with intent to defraud him of said goods, the defendant then falsely and fraudulently represented himself to the plaintiff to be worth ... .. dollars, over and above all his just debts and liabilities, when in truth he was at the time insolvent; and that the plaintiff was induced by said fraudulent representations to sell and deliver to the defendant, and so did solely on the faith thereof. III. That thereafter, and with such intent, defendant removed said goods to .... and as the plaintiff is informed and believes, is about to sell and dispose of the same. IV. That the defendant is insolvent, and, as the plaintiff is informed and believes, a judgment against him will be unavailing and worthless if he is suffered to sell and dispose of said goods. Wherefore the plaintiff demands judgment against the defendant, for the sum of dollars, with interest .... day of ..... 18... thereon from the said and that the defendant and his agents be enjoined from selling, disposing of, removing, or in anywise interfering with said goods or any of them, until such judgment be fully satisfied. § 2840. To restrain negotiation of bill or note. [TITLE.] Form No. 647. The plaintiff complains, and alleges: I and II. [Allege making of note, as in form No. 541.] sion; and though, on the ........ day of .... 18.., the plaintiff requested him to deliver it up, he refused so to do. Wherefore the plaintiff demands judgment: 1. That the defendant be enjoined from negotiating, transferring, or enforcing the same. 2. That it be delivered up and canceled. 3. And for the costs of this action. § 2841. Collection of note. Where suit is pending in one court on a note of defendant, though no summons has been served and no appearance made, he can not bring a bill in equity in another court, to enjoin the collection of the note, or to cancel it, the averment being simply that he has a good defense to the note.96 An injunction will not be granted to restrain the collection of a judgment rendered on a promissory 96 Smith v. Sparrow, 13 Cal. 596. note, for reasons which were known and should have been interposed as a defense in the suit on the note.97 Nor will an injunction be granted to restrain the prosecution of a suit against an indorser where the note has been paid by the maker; as such payment can be set up in defense to the action.98 § 2841a. To restrain enforcement of judgment. An action will lie to perpetually enjoin the execution of a justice's judgment against the plaintiff or his property, where the complaint shows that the judgment was obtained by fraud practiced upon the plaintiff by the attorneys of the defendant, who was plaintiff in the Justice's Court, with the assistance of the justice, and that the fraudulent judgment was concealed from the plaintiff, and that the plaintiff first learned that it had been entered. against him after the time for appeal had expired, and that relief had been sought against the judgment and denied in the Justice's Court.99 § 2841b. Fraudulent conveyance. Equity will enjoin any transfer of a debtor's property, made with intent to defraud and delay his judgment creditors, or to give a portion of such creditors a preference over others. But such power in the court can only be invoked in behalf of creditors who have established their claims in a court of law, and will not be exercised on behalf of mere creditors at large, whose claims are not reduced to judgment.100 § 2841c. Enjoining construction of sewer. An allegation in a complaint to enjoin the construction of a sewer by a city, which states that "the plaintiff further alleges that said sewer can be constructed in the center of said street, if necessary, without injuring the plaintiff's property, and without interfering with the operation of the plaintiff's said street railway," does not negative the presumption that the city was proceeding in such a manner as not unreasonably to interfere with the rights of the plaintiff, and is demurrable for want of sufficient facts.101 97 Beaudry v. Felch, 47 Cal. 183. 98 Williams v. Stewart, 56 Ga. 663; see, also, Chadwell v. Jordan, 2 Tenn. Ch. 635. Enjoin 99 Merriman v. Walton, 105 Cal. 403; 45 Am. St. Rep. 50. ing enforcement of judgment at law. See Rice v. Tobias, 89 Ala. 214; Johnson v. Christian, 128 U. S. 374. 100 Talbott v. Randall. 3 N. Mex. 226; see § 2777, ante. § 2841d. Injunction bond—complaint in action on. In an action upon an injunction bond, the complaint must allege the nonpayment of the money claimed under the contract, in order to state a cause of action. The allegation that the plaintiff has been injured and damaged in a certain sum by reason of the issuance and continuance of the injunction does not allege nonpayment by implication.102 § 2841e. Injunction jurisdiction. To warrant the Supreme Court of Colorado in taking jurisdiction in an original proceeding by injunction, the case made by the complaint must not only show equitable ground for relief, but must disclose a question involving the rights or franchises of the state in its sovereign capacity; that is, public rights or interests as contradistinguished from matters of private or individual concern.103 In California, the Superior Court can not enjoin the execution of a mandate of the Supreme Court. The order of the Supreme Court must control, and any conflicting order from the Superior Court must be disregarded. 104 -- § 2841f. The same dissolution of. When the complaint does not state a cause of action, an order refusing to dissolve an injunction is erroneous for that reason. And if facts pertaining to the knowledge of the defendant, which are essential to the cause of action, are alleged upon information and belief in the complaint, and are positively denied under oath in the answer, the injunction should be dissolved.108 The plaintiff complains, and alleges: I. That before the making of the claims hereinafter mentioned, one A. B. deposited with the plaintiff [describe the property] for [safe-keeping]. II. That the defendant C. D. claims the same [under an alleged assignment thereof to him from the said A. B.] 102 Curtiss v. Bachman, 84 Cal. 216. 103 People v. McClees, 20 Col. 403. To same effect, see AttorneyGeneral v. Railroad Companies, 35 Wis. 425; State v. Cunningham, 83 id. 90; 35 Am. St. Rep. 27. 104 Chung v. Laumeister, 83 Cal. 384; 17 Am. St. Rep. 261. 105 County of Yuba v. Cloke, 79 Cal. 239. Dissolution of injunction in vacation. See Roberts v. Arthur, 15 Col. 456. III. That the defendant E. F. also claims the same [under an order of the said A. B., transferring the same to him]. IV. That the plaintiff is ignorant of the respective rights of the defendants. V. That he has no claim upon the said property, and is ready and willing to, and hereby offers to deposit the same in court, or to deliver the same to such persons as 'the court shall direct. VI. That this action is not brought by collusion with either of the defendants. Wherefore the plaintiff demands judgment: 1. That the defendants be restrained by injunction from taking any proceeding against the plaintiff in relation thereto. 2. That they be required to interplead together concerning their claims to the said property. 3. That some person be authorized to receive the said property pending such litigation. 4. That upon delivering the same to such receiver the plaintiff be discharged from all liability to either of the defendants in relation thereto. 5. And that the plaintiff's costs be paid out of the same.106 § 2843. By tenant. Where a tenant finds that there are claimants to the property, he should file a bill of interpleader, making all the adverse claimants parties thereto, and offer to pay the rents into court to abide the ultimate decision of the case, 107 106 The above form is from Abbott's Forms, No. 660. The complaint or bill of interpleader must show that two or more persons have presented claims against the complainant for the same thing; that the complainant has no beneficial interest in the thing claimed; that he can not determine without hazard to himself to which of the several claimants the thing belongs; and that there is no collusion with any of the defendants. North Pacific Lumber Co. V. Lang, 28 Oreg. 246. 107 McDevitt v. Sullivan, 8 Cal. 592. Vol. II-47 The plaintiff complains, and alleges: I. That the defendant was, on or before the ............ day of 18.., seised and possessed of a certain tract of and bounded and described as land, situated in follows, to-wit [describe land]. II. That on said day the plaintiff and said defendant entered into a written contract of lease, whereby said defendant did grant, demise, and to farm let said tract of land to this plaintiff for the term of .... .. years thereafter, to be fully com pleted and ended, in consideration of the sum of dollars, monthly rent of said premises, to be paid therefor by the plaintiff to said defendant. III. That in and by said contract of lease, and as a part thereof, it was further covenanted and agreed that the plaintiff should have the privilege of purchasing said lot or tract of land, on or before the expiration of said lease, for the sum of ... dollars, in gold coin of the United States, which said covenant or agreement in said lease contained, and as part thereof as aforesaid, is as follows [insert copy of covenant]. IV. That the plaintiff, upon the execution and delivery of said lease, entered into and was in the sole possession thereof up to the present time, and is now in possession thereof, and during said time he has made valuable improvements thereon, to-wit, the value of dollars. V. And the plaintiff further alleges that he duly performed all the conditions of said lease on his part to be performed, and on the ........ day of .... 18.., which day was previous to the expiration of said lease, the plaintiff tendered to said defendant the sum of ..... dollars, in gold coin of the United States, and demanded from him a conveyance of said premises, and requested him specifically to perform his said covenant or agreement to convey to him said tract or lot of |
