Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1862-08-02
No. ID.

mortgage to the complainant for valuable considera-
tion after the purchase, and before any money
| had been paid.
"And this defendant further answering saith he de-
MES the allegation in said bill, to the effect that any
agreement, either verbally in writing was ever made
between the complainant and this defendant by which
complainant should draw from the earnings receipts
of the PuulOa property of 500 per month, or
any other sum Of money, by which the complainant
to have any interest share of, the profits OF
said property establishment, that defendant was
to keep any account, make any settlement with COM
painant, in relation thereto, as IN bill alleged and
also denies the allegations in said bill that this defen
dant, for long time, at all, continued to pay, or
paid to the complainant, any sum OF money, on
such pretended agreement, for any share or IN
terest in Puuha establishment but saith that this de-
fendant did pay from time time, very large sums of
money to the complainant as holder OF the SAID pro-
missory notes and mortgage.
The respondent answers and says that the house
placed on the estate by complainant was so placed by
his request and not in the exercise of an undouoted
right and further, that the complainant has never
been accustomed to examine the books containing an
of the business of the said estate nor has he
made request to do since respondent pur-
chased the estate He further denies that there was
any understanding and agreement with him that he
to convey the estate to the complainant on his re-
quest, to any one whom he nigh direct
The respondent further answers that the complain
ant has made any attempts to obtain settlement with
him. in relation said estate, the business connected
Herewith alleged, or pretended any right to set
Element in relation thereto.
The complainant replies that he does not know
whether the respondent executed notes to said Vincent
for $4,000, secured by murtgage neither does he
know whether they were transferred to him by ndorse
ment or assignment. The repant further AYERS that
ifthey were executed. it for form on y, and no
such mortgage is recorded and further, that for
year from October, 1885, the defendant had possession
of all the papers belonging to him. and that, if such
papers executed, and in existence, they are IN
possession of the defendant.
The complainant replying, further AYERS that the
sum of ) l45 was never paid by the defendant, and
received by the complainant for cattle nor were the
cattle sold by plaintiff bought by the defendant
that many cattle have been bought since said ad-
vertisement for sae by property the estate belong
ing to complainant and have been taken for debts due
to him and further, that all the averrments in CON-
painant's bill true.
Upon the coming in of the answer. the counsel for
the respondent moved dissolve the injunction, which
had been granted to restrain the respondent from con-
yeyng the real estate aud the personal estate thereon
And contended that the injunction should not have
been granted and ought to be dissolved, the ground
that it is not alleged in the bill that the defendant in
tends to aenate the real esde but only the personal
property thereon that is in the knowledge of the
complainant that respondent intends to ALLEVIATE the
property. Neither does the bill alege it, informa-
ton and belief but it alleges only that the plaintiff
has believe that he does believe, that the
defendant is intending to ALLEVIATE property the
tate.
1t is very true that an injunction must be specifically
prayed for in the bill 1t is the uniform practice not
grant this remedial process unless is so. This
constitutes exception from the general doctrine. as
to the efficacy to the prayer for general relief and
there is for this exception, for it has been
truly said that the defendant might make different
by his against the general words of bill,
from what he would have done against the specific
prayer for Injunction
The injunction in this prayed for specifically
in the bill, and this prayer based not upon any
a.
dent to make sale, but upon the alleged merits of the
bill, and the legal apprehension that the respondent
might be induced by the suit to place the title of the
estate in other persons The allegations, contended
for by the respondent would strengthen the prayer for
injunction, especially if supported by afdavlts be-
there would be for dissolving this nunc
ton, if in proof that the respondent negoti-
ang sell and convey the estate, either real or per-
sona except the personal estate in eordnary course
Of business.
If the allegations in the bill are true the respondent
should convey the estate the plaintiff for he holds it
in trust at the will of the complainant, and after de-
mand, the respondent should state his account, and
make his conveyance and there would be perfect justice
in restraining the sale under such state of facts.
do regard the allegations in like the present.
as necessary contended for by the respondents
counsel, of knowledge that he intends to SELL II such
intention is necessary be alleged it is necessary to be
proved. Those adroit skilled in fraud would
be careful not to permit any intention to be discovered
But, when the allegations based the fraudulent
conduct Of party, a matter of precauton, an IN
junction may be issued, although the party cannot
prove any effort or intention to sell.
do not regard the authorities cited by the respon
dents counsel sustaining the position assumed by
him. 1t would be restraint upon the action Of the
Court by which innocent parties mi ght seriously suffer-
While Courts should be certainly careful in issuing
writs of Injunction il should be placed within the
power of adroit and skiilful to prevent 1t, by
taking a which would prevent proof Of know
ledge of his intention sell. But, regard the grant
ing refusal of injunction before mat
ter resting in the sound discretion of the Court in
view of the of the case and of the whole aega-
tons in the bill and regard specific prayer for
injunction in this sufficient, without the aega-
tons contended for in the bill There are many
cases when this intention should be alleged and proved
before an injunction should be imposed ones bust
ness but this is not of that class of know of
no authority which makes it necessary in case Of this
character and if there was should hesitate TO follow
it in all cases. for it might lead great inconvenience,
additional expense of litigation and delay, and per-
haps, irreparable mischief
1t is eOnended further that all the equities Of the
b having been fully and unequivocally denied by the
answer of the respondent that therefore the injunction
ought to be dissolved. II is undoubtedly true, that
the whole merits satisfactorily denied by the an
swer, the injunction is ordinarily dissolved But there
are, as Mr. Justice Story slys in Poor u.s. Carleton,
Sum- Rep a. exceptions the doctrine. and these for
the most part uniformly resovable into the prnci-
pie Of rreparabe mischief such cases Of asserted
waste, of asserted mismanagemen. in partnership
concerns Of asserted violations Of copyright or OF
patent rights In of this the Court will look
to then pole circumstances and will continue or dis
solve the injunction in the exercise of sound dis
creti0n.
He says further {" I confess that should be sorry
to find that any such practice had been established as
that special injunction should be dissolved upon the
mere denial by the Of the whole merits Of the
bill. There many cases in which such practice
would be most mischievous-nay, might be the cause
irreDarable
that the question of dissolution of special Injunction
is which. after the comes in, is addressed to
the sound discretion of the Court
The answer to a bill IS regarded as true until dis
proved, and it is general principle of law that in
junction will not be continued when it denies all the
eoues of the hill -4ofFnoaa ,s ;v;,1o,ona 1 Jobn