452. It was conceded on the argument that this case did not fall within the exception to the rule. Therefore no mandatory injunction may preliminarily issue for the restoration of the local to the general body.

Other questions raised and discussed on the hearing are without controlling force, and it is unnecessary to decide them.

Upon this whole matter I am constrained to the conclusion that the complainants are not entitled to a preliminary injunction, and the restraining order must, therefore, be dissolved.

No costs will be awarded on this application. The costs will abide the event of the suit.2

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 65. INJUNCTIONS.

(a) Preliminary; Notice. No preliminary injunction shall be issued without notice to the adverse party.

(b) Temporary Restraining Order; Notice; Hearing; Duration. No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for. good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without

1 See 41 Harv. L. Rev. 671 (1928).

2 Affirmed on opinion below, s. c. 79 N. J. Eq. 641 (E. & A. 1912). See 1 Whitehouse, Equity Practice (1915) §§ 456-459. Cf. L. A. Thompson Scenic Ry. Co. v. Young, 90 Md. 278, 283 (1899); Manistique Lumbering Co. v. Lovejoy, 55 Mich. 189, 193 (1884).

As to the dissolution of temporary injunctions, see Mabel Mining Co. v. Pearson Coal & Iron Co., 121 Ala. 567, 570-571 (1898); Wing v. Inhabitants of Fairhaven, 8 Cush. 363 (Mass. 1851). As to the effect of an answer denying the allegations of the bill, compare Parkinson v. Trousdale, 4 Ill. 367, 370 (1842) with Sinnickson v. Johnson, 2 Green (3 N. J. Eq.) 374 (1835). As to the effect on the litigation of an order dissolving a temporary injunction, see Staley v. Big Sandy, E. L. & G. R. R. Co., 63 W. Va. 119 (1907). As to injunction bonds, see 1 Whitehouse, Equity Practice (1915) §§ 460–462.

notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On 2 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

(c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States or of an officer or agency thereof.1

(d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.2 . . .

1 Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 75-76, proposes to add the following paragraph to Rule 65(c): "A surety upon a bond or under taking under this rule submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the security may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court who shall forthwith mail copies to the persons giving the security if their addresses are known." Cf. Russell v. Farley, 105 U. S. 433, 466 (1881).

2 Rule 65 (e) states that the Federal Rules do not modify certain statutory provisions as to interlocutory relief in actions affecting employers and employees, in interpleader, and in actions to enjoin the enforcement of federal

statutes.

(3) Final decrees.

CONSOLIDATED ELECTRIC STORAGE CO. v. ATLANTIC TRUST CO.

COURT OF CHANCERY, NEW JERSEY. 1892.

VAN FLEET, V. C.

50 New Jersey Equity 93.

This is an application by the Atlantic Trust Company for an order opening a decree made against it on the 26th day of October, 1891. It asks that the decree may be opened, in order that it may show the complainant has no right to the relief which the decree gives. The decree adjudges that the Atlantic Trust Company has no beneficial interest in sixty thousand shares of the complainant's capital stock, which were transferred to it in 1890, not by the complainant but by other persons; that the complainant has a good present right to thirty thousand of the sixty thousand shares, and commands the trust. company to deliver them to the complainant; and it also adjudges that the complainant is entitled to the other thirty thousand shares, subject, however, to a lien which it is unnecessary, for the purposes of this discussion, to describe. The trust company is a foreign corporation, having been created by a law of the State of New York.1

a decree pro confesso was entered against it, and subsequently, on proofs taken ex parte, the decree in question was made.

The defendant insists that either one of the three following grounds entitles it to the order it asks: First, that the bill shows no cause of action in favor of the complainant in respect to the subject-matter of the suit.2...

When the facts stated in a bill do not show, assuming them all to be true, that the complainant has a cause of action against the defendant, which is the proper subject of relief in equity; it is obvious that the bill contains nothing which can be made the foundation of a decree, and consequently no decree can be founded on it which will be equitable and just. And if a decree should be made on a bill thus fatally defective, it would, as it seems to me, stand, in point of legal efficacy, precisely where a decree stands which is founded on a cause of action not stated in the bill. The doctrine is firmly settled that such a decree, or any judgment which is entirely outside of the cause of action specified in the pleadings in the suit in which it is pronounced, is invalid, and will be treated, even in a collateral proceeding, as a nullity. Such a judicial sentence is absolutely void and will be held to be a nullity everywhere. Munday v. Vail, 5 Vr. 418;

1 A part of the opinion describing the steps taken to secure jurisdiction over the defendant is omitted.

2 Only so much of the opinion as deals with this question is included.

Reynolds v. Stockton, 140 U. S. 254. In my judgment, no distinction, founded on either reason or justice, can be made between a decree founded on a cause of action which is not averred in the bill. In each case, it will be noticed, that the fundamental defect is, that there is nothing in the bill to support the decree, and hence each is, so far as the record shows, without the least foundation.

The important question, then, on this branch of the case, is — Is it true that the bill shows no right of action in the complainant in respect to the subject-matter of the suit? . . .

As the decree in question is founded on a bill which fails to show that the complainant has any cause of action against the defendant, it is plain that nothing short of an absolute vacation of the decree will answer the purposes of justice.

The decree will be set aside.2

REESE v. KIRK.

SUPREME COURT, ALABAMA. 1856.

29 Alabama 406.

THIS bill was filed by William Kirk against James E. Reese, to reform a bond for titles to a tract of land, and to enjoin an action at law on the bond. The bond was executed by Kirk to Reese in October, 1853, and was conditioned that the vendor should make title to "the west half of section two, township seventeen, range twentythree; also, one hundred and fifteen acres, being part of the west half of section thirty-five, township eighteen, range twenty-three; containing four hundred and thirty-five acres, more or less;" but the bill alleged that the land was misdescribed by mistake, and that the land really sold was, "the west half of section thirty-five, township eighteen, range twenty-three, and all of the west half of. section two, township seventeen, range twenty-three, which lies on the north side of the Uphanbee creek, supposed to contain one hundred and fifteen acres, more or less." The land had been previously sold and conveyed to Kirk by one Williams, who had purchased from one Segrist. In the deed from Segrist to Williams, the land was described as "the west half of section two, township seventeen, range twenty-three; also, one hundred and fifteen acres of the west half of section thirty-five, township eighteen, range twenty-three; containing in all four hun

1 The court, in a part of the opinion which is omitted, answered this question in the affirmative.

2 See Munday . Vail, 34 N. J. L. 418 (1871). Compare Collins . Loyal's Adm'r, 56 Ala. 403 (1876) (consent decree). Cf. p. 699, n. 1, supra.

As to whether the bill may be amended after the rendition of a decree so as to sustain the decree, see Jones v. Davenport, 45 N. J. Eq. 77, 81-87 (1889). As to decrees nunc pro tunc, see Burnham v. Dalling, 16 N. J. Eq. 310, 313 (1863); Newland v. Gaines, 1 Heisk. 720 (Tenn. 1870).

dred and thirty-five acres, more or less"; and in the deed from Williams to Kirk, as "the west half of section two, township seventeen, range twenty-three; also, one hundred and fifteen acres of the west half of section thirty-five, township eighteen, range twenty-three; containing in all four hundred and thirty-five acres, more or less, all lying north of Uphanbee creek." The description in the title-bond of Kirk was copied by Reese from the deed of Williams. The defendant denied, in his answer, that there was any mistake in the description of the land; alleging that he bought with reference to the land conveyed by Williams to Kirk, that he had no other knowledge of the numbers of the land, and that Kirk had no title to any other land than that described in the bond.

The chancellor held, on final hearing, that the evidence was sufficient to prove the alleged mistake; and he therefore rendered a decree, reforming the bond, but dissolving the injunction, and allowing the defendant to proceed with his action at law. From this decree the defendant now appeals, and here assigns it as error.

RICE, C. J. — The evidence shows that, by mistake, the bond for titles executed by the complainant to the respondent did not truly describe the tract of land really sold by the former to the latter. But the evidence also tends, very strongly, to show that neither the complainant, nor his vendor, had such title to said tract as the complainant by his bond covenanted to make to the respondent; that probably he will not be able, within any reasonable time, if ever, to procure or to make such title; and that neither he, nor the respondent, knew of that defect of title at the time the contract was made.

If the tract really sold had been truly described in the bond, the respondent, upon discovering the defect of title, would have had the election, to take the necessary steps to entitle himself to a rescission of the contract, or to sue at law for a breach of the covenant contained in the bond. . . . And from the evidence before us, we are not authorized to say that, if the bond had truly described the tract really sold, he would not have elected to proceed for a rescission, rather than for damages for a breach of the covenant contained in the bond.

He has not deprived himself of that election, as to the tract really sold to him, by bringing the suit at law upon the bond as executed to him because the tract described in it, although embracing part of that tract, was, as a tract, different from that really sold; and because the exercise of the election as to one tract is not the exercise of the election as to a different tract. Nor has he deprived himself of that election, by defending the present suit, in which his vendor seeks a correction of the mistake in the bond as to the description of the tract really sold. The right to exercise that election belongs to him until lost by his own act, or laches, and cannot be exercised by any court for him.

1 Citations omitted.