Blacks Law - 4th Edition
INJUNCTION
Inadequate damages
Damages are called "inadequate," within the
rule that an injunction will not be granted where
adequate damages at law could be recovered for
the injury sought to be prevented, when such a
recovery at law would not compensate the parties
and place them in the position in which they
formerly stood. Insurance Co. v. Bonner, 7 Colo.
App. 97, 42 P. 681.
Irreparable damages
In the law pertaining to injunctions, damages
for which no certain pecuniary standard exists
for measurement. Philadelphia Ball Club, Limited,
v. Lajoie, 202 Pa. 210, 51 A. 973, 58 L.R.A.
227. Damages not easily ascertainable at law.
Krich v. Zemel, 96 N.J.Eq. 208, 124 A. 449, 450.
With reference to public nuisances which a private
party may enjoin, the term includes wrongs
of a repeated and continuing character, or which
occasion damages estimable only by conjecture,
and not by any accurate standard. Bernard v.
Willamette Box & Lumber Co., 64 Or. 223, 129 P.
1039, 1042.
DE NOVI OPERIS NUNCIATIONE. In the civil
law. A form of interdict or injunction which lies
in some cases where the defendant is about to
erect a "new work" (q. v.) in derogation or injury
of the plaintiff's rights.
DIRECT ATTACK. A direct attack on a judgment
or decree is an attempt, for sufficient cause,
to have it anrfulled, reversed, vacated, corrected,
declared void, or enjoined, in a proceeding instituted
for that specific purpose, such as an appeal,
writ of error, bill of review, or injunction to restrain
its execution; distinguished from a collateral
attack, which is an attempt to impeach the
validity or binding force of the judgment or decree
as a side issue or in a proceeding instituted for
some other purpose. Morrill v. Morrill, 20 Or. 96,
25 P. 362; In re Melgaard's Will, 200 Minn. 493,
74 N.W. 641, 649. A direct attack on a judicial
proceeding is an attempt to void or correct it in
some manner provided by law.
DISSOLUTION.
In Contracts
. The dissolution of a contract is the cancellation
or abrogation of it by the parties themselves, with
the effect of annulling the binding force of the
agreement, and restoring each party to his original
rights. In this sense it is frequently used in
the phrase "dissolution of a partnership." Williston
v. Camp, 9 Mont. 88, 22 P. 501.
In Practice
The act of rendering a legal proceeding null,
abrogating or revoking it; unloosing its constraining
force; as when an injunction is dissolved by
the court. Jones v. Hill, 6 N.C. 131.
DISSOLVE. To terminate; abrogate; cancel;
annul; disintegrate. To release or unloose the
binding force of anything. As to "dissolve a corporation,"
to "dissolve an injunction." See Dissolution.
DISSOLVING BOND. A bond given to obtain the
dissolution of a legal writ or process, particularly
an attachment or an injunction, and conditioned
to indemnify the opposite party or to abide the
judgment to be given. See Sanger v. Hibbard, 2
Ind. T. 547, 53 S.W. 330.
ENJOIN. To require; command; positively direct.
To require a person, by writ of injunction
from a court of equity, to perform, or to abstain or
desist from, some act. Clifford v. Stewart, 95 Me.
38, 49 A. 52; Lawrence v. Cooke, 32 Hun, 126;
Brimberg v. Hartenfeld Bag Co., 89 N.J.Eq. 425,
105 A. 68, 69.
EX PARTE. On one side only; by or for one
party; done for, in behalf of, or on the application
of, one party only.
A judicial proceeding, order, injunction, etc., is said to be
ex parte when it is taken or granted at the instance and for
the benefit of one party only, and without notice to, or
contestation by, any person adversely interested. Janin v.
Logan, 209 Ky. 811, 273 S.W. 531, 532; Van Alen v. Superior
Court in and for Los Angeles County, 37 Cal.App. 696,
174 P. 672; Stella v. Mosele, 299 53, 19 N.E.2d 433,
435.
In its primary sense, ex parte, as applied to an application
in a judicial proceeding, means that it is made by a
person who is not a party to the proceeding, but who has
an interest in the matter which entitles him to make the
application. Thus, in a bankruptcy proceeding or an
administration action, an application by A. B., a creditor,
or the like, would be described as made "ex parte A. B.,"
e., on the part of A. B.
In its more usual sense, ex parte means that an application
is made by one party to a proceeding in the absence
of the other. Thus, an ex parte injunction is one granted
without the opposite party having had notice of the application.
It would not be called "ex parte" if he had proper
notice of it, and chose not to appear to oppose it. Sweet.
"Ex parte," in the heading of a reported case,
signifies that the name following is that of the
party upon whose application the case is heard.
EXCEPTION. Act of excepting or excluding from
a number designated or from a description; that
which is excepted or separated from others in a
general rule or description; a person, thing, or
case specified as distinct or not included; an act
of excepting, omitting from mention or leaving
out of consideration; and "except" means not including.
In re Kelly's Estate, 153 Misc. 445, 274
N.Y.S. 488.
For "General Exception" and "Special Exception,"
see those titles.
Practice
A formal objection to the action of the court,
during the trial of a cause, in refusing a request
or overruling an objection; implying that the party
excepting does not acquiesce in the decision of
the court, but will seek to procure its reversal,
and that he means to save the benefit of his request
or objection in some future proceeding.
United States v. United States Fidelity & Guaranty
Co., 236 U.S. 512, 35 S.Ct. 298, 303, 59 L.Ed. 696;
Liquid Carbonic Co. v. Rodman, 52 Okl. 211, 152 P.
439; State v. Laundy, 103 Or. 443, 206 P. 290. It
is also somewhat used to signify other objections
in the course of a suit; for example, exception to
bail is a formal objection that special bail offered
by defendant is insufficient. 1 Tidd, Pr. 255.
An exception is, an objection formally taken to a decision
of the court on a matter of law. State v. Wolzenski,
340 Mo. 1181, 105 S.W.2d 905, 907; an objection on a matter
of law to a decision made, either before or after judgment,
by a court, tribunal, judge, or other judicial officer
in an action or proceeding. Hearn v. Gunther, 57 Cal.
App.2d 82, 134 P.2d 3, 5; an objection, oral or written,
taken, in course of an action or proceeding, as to bail, to
the decision or a ruling of a judge, or to something in his
charge to a jury. In re Pardue's Estate, 57 Cal.App.2d 918,
135 P.2d 394, 395.
.An objection to a pleading or any part thereof for want
of substance is a general exception; an objection to the
form in which a cause of action is stated is a special exception.
Cochran v. People's Nat. Bank, Tex.Civ.App., 271
S.W. 433, 434.
Objections to report of master on bill for injunction held
"exceptions". Respro, Inc., v. Worcester Backing Co., 291
Mass. 467, 197 N.E. 198, 200.
To authorize review of alleged error in admitting evidence
in compensation case, there must be an "exception",
that known to equity practice, and defined as act of appealing
from rulings appearing of record, and nothing more.
Indrisano's Case, 307 Mass. 520, 30 N.E.2d 538, 539.
Proviso and Exception Distinguished
A "proviso" and an "exception" are substantially
the same thing. Evans v. McCabe, 164 Tenn.
672, 52 S.W.2d 159, 160.
A proviso differs from an exception. 1 Barn. &
Ald. 99. An exception exempts, absolutely, from
the operation of an engagement or an enactment;
a proviso, properly speaking, defeats their operation,
conditionally. An exception takes out of an
engagement or enactment something which would
otherwise be part of the subject-matter of it; a
proviso avoids them by way of defeasance or excuse.
8 Am.Jur. 242; Board of Com'rs of Noble
County v. Whitney, 73 Okl. 160, 175 P. 112, 113;
Philadelphia Life Ins. Co. v. Farnsley's Adm'r,
162 Ky. 27, 171 S.W. 1004, 1005; New Jersey State
Board of Optometrists v. S. S. Kresge Co., Sup.,
113 N.J.L. 287, 174 A. 353, 357; Sowers Plan Crop
Ins. Mut. Co. v. Hobbs, 146 Kan. 166, 68 P.2d 1110,
1111.
The ordinary office of an "exception" or "proviso" in a
policy is to take special cases out of a general class or to
guard against misinterpretation. Landau v. Equitable Life
Assur. Soc. of United States, 1 N.Y.S.2d 891, 895, 166
Misc. 42.
Reservation and Exception as Synonymous or
Distinguishable
A reservation is always of a thing not in esse, but newly
created or reserved out of the land or tenement demised;
• an exception is always of a part of the thing granted, and
of a thing in esse. Co.Litt. 47a; 4 Kent, Comm. 468.
A "reservation" creates some new right in grantor while
an "exception" withholds from grant title to some part of
property which would otherwise pass. Clark v. Pauley,
291 Ky. 637, 165 S.W.2d 161, 162; Federal Land Bank of
New Orleans v. Cooper, 190 Miss. 490, 200 So. 729, 730, 731;
Goss v. Congdon, 114 Vt. 155, 40 A.2d 429, 430.
A reservation does not affect the description of the property
conveyed, but retains to the grantor some right upon
the property, as an easement, whereas an exception operates
upon the description and withdraws from the description
the excepted property. Moore v. Davis, 273 Ky. 838,
117 S.W.2d 1033, 1035.
A "reservation" is always of something taken back out of
that which is clearly granted, while an "exception" is of
some part of the estate not granted at all. Houghtaling
v. Stoothoff, 170 Misc. 773, 12 N.Y.S.2d 207, 210; Lewis v.
Standard Oil Co. of California, C.C.A.Cal., 88 F.2d 512, 514.
A reservation provides for return of rent or service, regarded
as issuing out of land granted. An exception withholds
particular portion of land granted. Cook v. Farley,
195 Miss. 638, 15 So.2d 352, 355 ; Marias River Syndicate v.
Big West Oil Co., 98 Mont. 254, 38 P.2d 599, 601.
Reservation means something issuing or arising out of
thing granted while an exception means some part of the
estate not granted, or withdrawn from the effect of the
grant, although the terms are often used indiscriminately
and given effect according to the obvious intent of the
parties. Vance v. Pritchard, 213 N.C. 552, 197 S.E. 182,
185.
Reservation must always be in favor of and for benefit of
grantor, whereas exception is mere exclusion from grant,
of some interest which may be vested in grantor or outstanding
in another; reservation reserves to grantor some
new thing, either issuing out of or incident to thing granted,
while exception in deed is clause exempting from operation
thereof and retaining in grantor title to some part of
the thing granted or excepting some part of thing granted,
title to which is at the time in another. Klein v. Humble
Oil & Refining Co., Tex.Civ.App., 67 S.W.2d 911, 915.
Reservation reserves to grantor some new interest out of
thing granted, while exception excludes from operation of
grant some existing part of estate. Petty v. Griffith, Mo.,
165 S.W.2d 412, 414; U. S. v. 1,010.8 Acres, More or Less,
Situate in Sussex County, Del., D.C.Del., 56 F.Supp. 120,
128.
The terms "reservation" and "exception" are frequently
used as interchangeable for synonymous terms. Nelson v.
Bacon, 113 Vt. 161, 32 A.2d 140, 145; Murphy v. Sunset
Hills Ass'n, 243 Wis. 139, 9 N.W.2d 613, 615; Meaning intended
must be determined by reference to subject matter
and surrounding circumstances. Federal Land Bank of
New Orleans v. Cooper, 190 Miss. 490, 200 So. 729, 730, 731;
Duus v. Town of Ephrata, 14 Wash.2d 426, 128 P.2d 510,
511; Parties' intention, not language used, is dominating
factor in determining whether provision is reservation or
exception. Goss v. Congdon, 114 Vt. 155, 40 A.2d 429, 430;
Technical meaning will yield to the manifest intent. Jensen
v. Sheker, 231 Iowa 240, 1 NtW.2d 262, 267; Technical
misnomer does not operate to defeat attempted reservation
or exception. Clark v. Pauley, 291 Ky. 637, 165 S. W.
2d 161, 162; It has been also said that there is a diversity
between an exception and a saving, for an exception exempts
clearly, but a saving goes to the matters touched,
and does not exempt. Plowd. 361. Ogden v. Straus Bldg.
Corporation, 187 Wis. 232, 202 N.W. 34, 44; Haymaker v.
Windsor Reservoir & Canal Co., 81 Colo. 168, 254 P. 768,
770; Central Bank & Trust Co. v. Wyatt, 189 N.C. 107, 126
S.E. 93, 94; Greenspan v. Yaple, 194 N.Y.S. 658, 659, 201
App. Div. 575.
Statutory Law
An exception in a statute is a clause designed
to reserve or exempt some individuals from the
general class of persons or things to which the
language of the act in general attaches. People
v. Bailey, 103 Misc. 366, 171 N.Y.S. 394, 397.
An exception differs from an explanation, which, by the
use of a videlicet, proviso, etc., is allowed only to explain
doubtful clauses precedent, or to separate and distribute
generals into particulars. Cutler v. Tufts, 3 Pick., Mass.,
272.
An "exception" exempts absolutely from the operation of
the statute, while a "proviso" generally defeats operation
of statute conditionally. Oregon Liquor Control Commission
v. Coe, 163 Or. 646, 99 P.2d 29, 31; People v.
Thursam, City Ct., 23 N.Y.S.2d 706, 710, 713.
The office of an "exception" in a statute is to except
something from the operative effect of a statute or to
qualify or restrain the generality of the substantive enactment
to which it is attached, and it is not necessarily
limited to the section of the statute immediately following
or preceding. Gatliff Coal Co. v. Cox, C.C.A.Ky., 142 F.2d
876, 882.
Two statutes relating to same subject must be read together,
and provisions of one having special application to
particular subject will be deemed an "exception" to other
statute general in its terms. Eagleton v. Murphy, 348 Mo.
949, 156 S.W.2d 683, 685, 138 A.L.R. 749.
EXECUTE. To complete; to make; to perform;
to do; to follow out. Glover v. American Mortgage
Corporation, Tex.Civ.App., 94 S.W.2d 1235,
1236.
To finish, accomplish, make complete, fulfill. To perform;
obey the injunctions of.
To make; as to execute a deed, which includes signing,
sealing, and delivery; performance of all necessary formalities.
Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1123,
1130; White v. Hendley, 35 Cal.App. 267, 169 P. 710, 713;
Hathaway v. Cook, 258 Ill. 92, 101 N.E. 227, 228; Williams
v. Kidd, 170 Cal. 631, 151 P. 1, 8, Ann.Cas.1916E, 703. The
"execution" of a note involves not only the signing but the
delivery of the note. Kennedy & Parsons Co. v. Lander
Dairy & Produce Co., 36 Wyo. 58, 252 P. 1036, 1038, 51 A.
L.R. 315; Lynch v. Figge, 192 N.Y.S. 873, 876, 200 App.
Div. 92; Perko v. Rock Springs Commercial Co., 37 Wyo.
98, 259 P. 520, 522; The execution of a contract includes
performance of all acts necessary to render it complete as
an instrument. Hofgesang v. Silver, 223 Ky. 101, 3 S.W.2d
185, 186; To make and sign contract, Glick v. Daniel, 184
Ark. 576, 42 S.W.2d 1007, 1008.
To perform; carry out according to its terms; as to
execute a contract, or a writ. State v. Miller, 104 W.Va.
226, 139 S.E. 711, 712; Harrity v. Steers, 185 N.Y.S. 704,
195 App. Div. 11.
To fulfill the purpose of ; to obey; to perform the commands
of ; as to execute a writ.
A statute is said to execute a use where it transmutes
the equitable interest of the cestui que use into a legal estate
of the same nature, and makes him tenant of the land
accordingly, in lieu of the feoffee to uses or trustee, whose
estate, on the other hand, is at the same moment annihilated.
1 Steph.Comm. 339.
Word "sign" as used in trial court's general oral charge
and in special written charge given at request of defendant
was synonymous with word "execute". Kinney v. Glenn,
29 Ala.App. 478, 198 So. 250, 253.
EXTREME CASE. An extreme case, in which
an injunction granted inadvertently or improvidently
may be dissolved ex parte, means one in
which the injunction was manifestly granted improperly,
and its continuation until hearing in due
course might cause great injury. Teacle v.
Hughes, 146 La. 195, 83 So. 457, 458.
FAST BILL OF EXCEPTIONS. One which may
be taken in Georgia in injunction suits and similar
cases, at such time and in such manner as to bring
the case up for review with great expedition. It
must be certified within twenty days from the
rendering of the decision. Sewell v. Edmonston,
66 Ga. 353.
FORUM NON CONVENIENS. The doctrine is
patterned upon the right of the court in the exercise
of its equitable powers to refuse the imposition
upon its jurisdiction of the trial of cases even
though the venue is properly laid if it appears
that for the convenience of litigants and witnesses
and in the interest of justice the action should
be instituted in another forum where the action
might have been brought. Hayes v. Chicago, R. I.
& P. R. Co., D.C.Minn., 79 F.Supp. 821, 824. The
doctrine presupposes at least two forums in which
the defendant is amenable to process and fur-
nishes criteria for choice between such forums.
Wilson v. Seas Shipping Co., D.C.Pa., 78 F.Supp.
464, 465; Neal v. Pennsylvania R. Co., D.C.N.Y., 77
F.Supp. 423, 424. The application of the doctrine
rests in the sound discretion of the court and the
factors to be considered in the doctrine are the
private interests of the litigant and the interest of
the public. Cullinan v. New York Cent. R. Co., D.
C.N.Y., 83 F.Supp. 870, 871. And a court, either
state or federal, will generally decline to interfere
with or control by injunction or otherwise the
management of internal affairs of a corporation
organized under the laws of another state, leaving
controversies as to such matters to courts of state
of domicile. Garrett v. Phillips Petroleum Co.,
Tex.Civ.App., 218 S.W.2d 238, 240; Murray v. Union
Pac. R. Co., D.C.Ill., 77 F.Supp. 219; Kelley v.
American Sugar Refining Co., C.C.A.Mass., 139 F.
2d 76; Tiuoli Realty v. Interstate Circuit, C.C.A.
Tex., 167 F.2d 155; Rogers v. Guaranty Trust Co.,
288 U.S. 123, 53 S.Ct. 295, 77 L.Ed. 652, 89 A.L.R.
720.
The rule is an equitable one embracing the discretionary
power of a court to decline to exercise jurisdiction which it
has over a transitory cause of action when it believes that
the action may be more appropriately and justly tried
elsewhere. Leet v. Union Pac. R. Co., 155 P.2d 42, 44, 25
Ca1.2d 605.
In determining whether doctrine should be applied, court
should consider relative ease of access to sources of proof,
availability of compulsory process for attendance of unwilling
witnesses, cost of obtaining attendance of willing wig
nesses, possibility of view of premises, and all other practical
problems that make trial easy, expeditious and inexpensive.
Di Lella v. Lehigh Val. R. Co., D.C.N.Y., 7 F.R.
D. 192, 193.
IMPROVIDENTLY. A judgment, decree, rule,
injunction, etc., when given or rendered without
adequate consideration by the court, or without
proper information as to all the circumstances affecting
it, or based upon a mistaken assumption
or misleading information or advice, is sometimes
said to have been "improvidently" given or issued.
INJUNCTION. A prohibitive writ issued by a
court of equity, at the suit of a party complainant,
directed to a party defendant in the action,
or to a party made a defendant for that purpose,
forbidding the latter to do some act, or to
permit his servants or agents to do some act,
which he is threatening or attempting to commit,
or restraining him in the continuance thereof, such
act being unjust and inequitable, injurious to the
plaintiff, and not such as can be adequately redressed
by an action at law. Dupre v. Anderson,
45 La.Ann. 1134, 13 So. 743; City of Alma v. Loehr,
42 Kan. 368, 22 P. 424. A judicial process operating
in personam, and requiring person to whom
it is directed to do or refrain from doing a particular
thing. Gainsburg v. Dodge, 193 Ark. 473,
101 S.W.2d 178, 180.
Final injunction
One granted when the rights of the parties are determined;
distinguished from a preliminary injunction.
Southern Pac. R. Co. v. Oakland, C.C.Cal., 58 F. 54.
Interlocutory injunction
One granted prior to the final hearing and determination
of the matter in issue, and which is to continue until
answer, or until the final hearing, or until the further
order of the court. Gas & Electric Securities Co. v. Manhattan
& Queens Traction Corporation. C.C.A.N.Y., 266 F.
625, 632
Mandatory injunction
One which (1) commands the defendant to do some positive
act or particular thing; (2) prohibits him from refusing
(or persisting in a refusal) to do or permit some act to
which the plaintiff has a legal right; or (3) restrains the
defendant from permitting his previous wrongful act to
continue operative, thus virtually compelling him to undo
it. Bailey v. Schnitzius, 43 N.J.Eq. 178, 16 A. 680.
Permanent injunction
One intended to remain in force until the final termination
of the particular suit. Riggins v. Thompson, 96 Tex.
154, 71 S.W. 14.
Perpetual injunction
An injunction which finally disposes of the suit, and is
indefinite in point of lime. Riggins v. Thompson, 96 Tex.
154, 71 S.W. 14.
Preliminary injunction
An injunction granted at the institution of a suit, to
restrain the defendant from doing or continuing some act,
the right to which is in dispute, and which may either be
discharged or made perpetual, according to the result of
the controversy, as soon as the rights of the parties are
determined. Darlington Oil Co. v. Pee Dee Oil Co., 62 S.C.
196, 40 S.E. 169: Appeal of Mammoth Vein Consol. Coal
Co., 54 Pa. 188.
Preventive injunction
One which prohibits the defendant from doing a particular
act or commands him to refrain from it. Leaksville
Woolen Mills v. Spray Water Power & Land Co., 183 N.C.
511, 112 S.E. 24, 25.
Provisional injunction
Another name for a preliminary or temporary injunction
or an injunction pendente lite.
Special injunction
An injunction obtained only on motion and petition,
usually with notice to the other party. Aldrich v. Kirkland,
6 Rich.Law S.C. 340; 4 Steph.Comm. 12, note z.
Temporary injunction
A preliminary or provisional injunction, or one granted
pendente lite; as opposed to a final or perpetual injunction.
Jesse French Piano Co. v, Porter, 134 Ala. 302, 32 So. 678,
92 Am.St.Rep. 31.
PROVISIONAL INJUNCTION. Sometimes,
though not correctly, used for interlocutory injunction.
PROVISIONAL REMEDY. A remedy provided
for present need or for the immediate occasion;
one adapted to meet a particular exigency. Particularly,
a temporary process available to a plaintiff
in a civil action, which secures him against
loss, irreparable injury, dissipation of the property,
etc., while the action is pending. Such are
the remedies by injunction, appointment of a receiver,
attachment, or arrest. The term is chiefly
used in the codes of practice. Snavely v. Abbott
Buggy Co., 36 Kan. 106, 12 P. 522.
RESTRAINING ORDER. An order in the nature
of an injunction. See Order.
TERMS TO BE UNDER. A party is said to be
under terms, when an indulgence is granted to
him by the court in its discretion, on certain conditions.
Thus, when an injunction is granted ex
parte, the party obtaining it is put under terms to
abide by such order as to damages as the court
may make at the hearing. Moz. & W.
Inadequate damages
Damages are called "inadequate," within the
rule that an injunction will not be granted where
adequate damages at law could be recovered for
the injury sought to be prevented, when such a
recovery at law would not compensate the parties
and place them in the position in which they
formerly stood. Insurance Co. v. Bonner, 7 Colo.
App. 97, 42 P. 681.
Irreparable damages
In the law pertaining to injunctions, damages
for which no certain pecuniary standard exists
for measurement. Philadelphia Ball Club, Limited,
v. Lajoie, 202 Pa. 210, 51 A. 973, 58 L.R.A.
227. Damages not easily ascertainable at law.
Krich v. Zemel, 96 N.J.Eq. 208, 124 A. 449, 450.
With reference to public nuisances which a private
party may enjoin, the term includes wrongs
of a repeated and continuing character, or which
occasion damages estimable only by conjecture,
and not by any accurate standard. Bernard v.
Willamette Box & Lumber Co., 64 Or. 223, 129 P.
1039, 1042.
DE NOVI OPERIS NUNCIATIONE. In the civil
law. A form of interdict or injunction which lies
in some cases where the defendant is about to
erect a "new work" (q. v.) in derogation or injury
of the plaintiff's rights.
DIRECT ATTACK. A direct attack on a judgment
or decree is an attempt, for sufficient cause,
to have it anrfulled, reversed, vacated, corrected,
declared void, or enjoined, in a proceeding instituted
for that specific purpose, such as an appeal,
writ of error, bill of review, or injunction to restrain
its execution; distinguished from a collateral
attack, which is an attempt to impeach the
validity or binding force of the judgment or decree
as a side issue or in a proceeding instituted for
some other purpose. Morrill v. Morrill, 20 Or. 96,
25 P. 362; In re Melgaard's Will, 200 Minn. 493,
74 N.W. 641, 649. A direct attack on a judicial
proceeding is an attempt to void or correct it in
some manner provided by law.
DISSOLUTION.
In Contracts
. The dissolution of a contract is the cancellation
or abrogation of it by the parties themselves, with
the effect of annulling the binding force of the
agreement, and restoring each party to his original
rights. In this sense it is frequently used in
the phrase "dissolution of a partnership." Williston
v. Camp, 9 Mont. 88, 22 P. 501.
In Practice
The act of rendering a legal proceeding null,
abrogating or revoking it; unloosing its constraining
force; as when an injunction is dissolved by
the court. Jones v. Hill, 6 N.C. 131.
DISSOLVE. To terminate; abrogate; cancel;
annul; disintegrate. To release or unloose the
binding force of anything. As to "dissolve a corporation,"
to "dissolve an injunction." See Dissolution.
DISSOLVING BOND. A bond given to obtain the
dissolution of a legal writ or process, particularly
an attachment or an injunction, and conditioned
to indemnify the opposite party or to abide the
judgment to be given. See Sanger v. Hibbard, 2
Ind. T. 547, 53 S.W. 330.
ENJOIN. To require; command; positively direct.
To require a person, by writ of injunction
from a court of equity, to perform, or to abstain or
desist from, some act. Clifford v. Stewart, 95 Me.
38, 49 A. 52; Lawrence v. Cooke, 32 Hun, 126;
Brimberg v. Hartenfeld Bag Co., 89 N.J.Eq. 425,
105 A. 68, 69.
EX PARTE. On one side only; by or for one
party; done for, in behalf of, or on the application
of, one party only.
A judicial proceeding, order, injunction, etc., is said to be
ex parte when it is taken or granted at the instance and for
the benefit of one party only, and without notice to, or
contestation by, any person adversely interested. Janin v.
Logan, 209 Ky. 811, 273 S.W. 531, 532; Van Alen v. Superior
Court in and for Los Angeles County, 37 Cal.App. 696,
174 P. 672; Stella v. Mosele, 299 53, 19 N.E.2d 433,
435.
In its primary sense, ex parte, as applied to an application
in a judicial proceeding, means that it is made by a
person who is not a party to the proceeding, but who has
an interest in the matter which entitles him to make the
application. Thus, in a bankruptcy proceeding or an
administration action, an application by A. B., a creditor,
or the like, would be described as made "ex parte A. B.,"
e., on the part of A. B.
In its more usual sense, ex parte means that an application
is made by one party to a proceeding in the absence
of the other. Thus, an ex parte injunction is one granted
without the opposite party having had notice of the application.
It would not be called "ex parte" if he had proper
notice of it, and chose not to appear to oppose it. Sweet.
"Ex parte," in the heading of a reported case,
signifies that the name following is that of the
party upon whose application the case is heard.
EXCEPTION. Act of excepting or excluding from
a number designated or from a description; that
which is excepted or separated from others in a
general rule or description; a person, thing, or
case specified as distinct or not included; an act
of excepting, omitting from mention or leaving
out of consideration; and "except" means not including.
In re Kelly's Estate, 153 Misc. 445, 274
N.Y.S. 488.
For "General Exception" and "Special Exception,"
see those titles.
Practice
A formal objection to the action of the court,
during the trial of a cause, in refusing a request
or overruling an objection; implying that the party
excepting does not acquiesce in the decision of
the court, but will seek to procure its reversal,
and that he means to save the benefit of his request
or objection in some future proceeding.
United States v. United States Fidelity & Guaranty
Co., 236 U.S. 512, 35 S.Ct. 298, 303, 59 L.Ed. 696;
Liquid Carbonic Co. v. Rodman, 52 Okl. 211, 152 P.
439; State v. Laundy, 103 Or. 443, 206 P. 290. It
is also somewhat used to signify other objections
in the course of a suit; for example, exception to
bail is a formal objection that special bail offered
by defendant is insufficient. 1 Tidd, Pr. 255.
An exception is, an objection formally taken to a decision
of the court on a matter of law. State v. Wolzenski,
340 Mo. 1181, 105 S.W.2d 905, 907; an objection on a matter
of law to a decision made, either before or after judgment,
by a court, tribunal, judge, or other judicial officer
in an action or proceeding. Hearn v. Gunther, 57 Cal.
App.2d 82, 134 P.2d 3, 5; an objection, oral or written,
taken, in course of an action or proceeding, as to bail, to
the decision or a ruling of a judge, or to something in his
charge to a jury. In re Pardue's Estate, 57 Cal.App.2d 918,
135 P.2d 394, 395.
.An objection to a pleading or any part thereof for want
of substance is a general exception; an objection to the
form in which a cause of action is stated is a special exception.
Cochran v. People's Nat. Bank, Tex.Civ.App., 271
S.W. 433, 434.
Objections to report of master on bill for injunction held
"exceptions". Respro, Inc., v. Worcester Backing Co., 291
Mass. 467, 197 N.E. 198, 200.
To authorize review of alleged error in admitting evidence
in compensation case, there must be an "exception",
that known to equity practice, and defined as act of appealing
from rulings appearing of record, and nothing more.
Indrisano's Case, 307 Mass. 520, 30 N.E.2d 538, 539.
Proviso and Exception Distinguished
A "proviso" and an "exception" are substantially
the same thing. Evans v. McCabe, 164 Tenn.
672, 52 S.W.2d 159, 160.
A proviso differs from an exception. 1 Barn. &
Ald. 99. An exception exempts, absolutely, from
the operation of an engagement or an enactment;
a proviso, properly speaking, defeats their operation,
conditionally. An exception takes out of an
engagement or enactment something which would
otherwise be part of the subject-matter of it; a
proviso avoids them by way of defeasance or excuse.
8 Am.Jur. 242; Board of Com'rs of Noble
County v. Whitney, 73 Okl. 160, 175 P. 112, 113;
Philadelphia Life Ins. Co. v. Farnsley's Adm'r,
162 Ky. 27, 171 S.W. 1004, 1005; New Jersey State
Board of Optometrists v. S. S. Kresge Co., Sup.,
113 N.J.L. 287, 174 A. 353, 357; Sowers Plan Crop
Ins. Mut. Co. v. Hobbs, 146 Kan. 166, 68 P.2d 1110,
1111.
The ordinary office of an "exception" or "proviso" in a
policy is to take special cases out of a general class or to
guard against misinterpretation. Landau v. Equitable Life
Assur. Soc. of United States, 1 N.Y.S.2d 891, 895, 166
Misc. 42.
Reservation and Exception as Synonymous or
Distinguishable
A reservation is always of a thing not in esse, but newly
created or reserved out of the land or tenement demised;
• an exception is always of a part of the thing granted, and
of a thing in esse. Co.Litt. 47a; 4 Kent, Comm. 468.
A "reservation" creates some new right in grantor while
an "exception" withholds from grant title to some part of
property which would otherwise pass. Clark v. Pauley,
291 Ky. 637, 165 S.W.2d 161, 162; Federal Land Bank of
New Orleans v. Cooper, 190 Miss. 490, 200 So. 729, 730, 731;
Goss v. Congdon, 114 Vt. 155, 40 A.2d 429, 430.
A reservation does not affect the description of the property
conveyed, but retains to the grantor some right upon
the property, as an easement, whereas an exception operates
upon the description and withdraws from the description
the excepted property. Moore v. Davis, 273 Ky. 838,
117 S.W.2d 1033, 1035.
A "reservation" is always of something taken back out of
that which is clearly granted, while an "exception" is of
some part of the estate not granted at all. Houghtaling
v. Stoothoff, 170 Misc. 773, 12 N.Y.S.2d 207, 210; Lewis v.
Standard Oil Co. of California, C.C.A.Cal., 88 F.2d 512, 514.
A reservation provides for return of rent or service, regarded
as issuing out of land granted. An exception withholds
particular portion of land granted. Cook v. Farley,
195 Miss. 638, 15 So.2d 352, 355 ; Marias River Syndicate v.
Big West Oil Co., 98 Mont. 254, 38 P.2d 599, 601.
Reservation means something issuing or arising out of
thing granted while an exception means some part of the
estate not granted, or withdrawn from the effect of the
grant, although the terms are often used indiscriminately
and given effect according to the obvious intent of the
parties. Vance v. Pritchard, 213 N.C. 552, 197 S.E. 182,
185.
Reservation must always be in favor of and for benefit of
grantor, whereas exception is mere exclusion from grant,
of some interest which may be vested in grantor or outstanding
in another; reservation reserves to grantor some
new thing, either issuing out of or incident to thing granted,
while exception in deed is clause exempting from operation
thereof and retaining in grantor title to some part of
the thing granted or excepting some part of thing granted,
title to which is at the time in another. Klein v. Humble
Oil & Refining Co., Tex.Civ.App., 67 S.W.2d 911, 915.
Reservation reserves to grantor some new interest out of
thing granted, while exception excludes from operation of
grant some existing part of estate. Petty v. Griffith, Mo.,
165 S.W.2d 412, 414; U. S. v. 1,010.8 Acres, More or Less,
Situate in Sussex County, Del., D.C.Del., 56 F.Supp. 120,
128.
The terms "reservation" and "exception" are frequently
used as interchangeable for synonymous terms. Nelson v.
Bacon, 113 Vt. 161, 32 A.2d 140, 145; Murphy v. Sunset
Hills Ass'n, 243 Wis. 139, 9 N.W.2d 613, 615; Meaning intended
must be determined by reference to subject matter
and surrounding circumstances. Federal Land Bank of
New Orleans v. Cooper, 190 Miss. 490, 200 So. 729, 730, 731;
Duus v. Town of Ephrata, 14 Wash.2d 426, 128 P.2d 510,
511; Parties' intention, not language used, is dominating
factor in determining whether provision is reservation or
exception. Goss v. Congdon, 114 Vt. 155, 40 A.2d 429, 430;
Technical meaning will yield to the manifest intent. Jensen
v. Sheker, 231 Iowa 240, 1 NtW.2d 262, 267; Technical
misnomer does not operate to defeat attempted reservation
or exception. Clark v. Pauley, 291 Ky. 637, 165 S. W.
2d 161, 162; It has been also said that there is a diversity
between an exception and a saving, for an exception exempts
clearly, but a saving goes to the matters touched,
and does not exempt. Plowd. 361. Ogden v. Straus Bldg.
Corporation, 187 Wis. 232, 202 N.W. 34, 44; Haymaker v.
Windsor Reservoir & Canal Co., 81 Colo. 168, 254 P. 768,
770; Central Bank & Trust Co. v. Wyatt, 189 N.C. 107, 126
S.E. 93, 94; Greenspan v. Yaple, 194 N.Y.S. 658, 659, 201
App. Div. 575.
Statutory Law
An exception in a statute is a clause designed
to reserve or exempt some individuals from the
general class of persons or things to which the
language of the act in general attaches. People
v. Bailey, 103 Misc. 366, 171 N.Y.S. 394, 397.
An exception differs from an explanation, which, by the
use of a videlicet, proviso, etc., is allowed only to explain
doubtful clauses precedent, or to separate and distribute
generals into particulars. Cutler v. Tufts, 3 Pick., Mass.,
272.
An "exception" exempts absolutely from the operation of
the statute, while a "proviso" generally defeats operation
of statute conditionally. Oregon Liquor Control Commission
v. Coe, 163 Or. 646, 99 P.2d 29, 31; People v.
Thursam, City Ct., 23 N.Y.S.2d 706, 710, 713.
The office of an "exception" in a statute is to except
something from the operative effect of a statute or to
qualify or restrain the generality of the substantive enactment
to which it is attached, and it is not necessarily
limited to the section of the statute immediately following
or preceding. Gatliff Coal Co. v. Cox, C.C.A.Ky., 142 F.2d
876, 882.
Two statutes relating to same subject must be read together,
and provisions of one having special application to
particular subject will be deemed an "exception" to other
statute general in its terms. Eagleton v. Murphy, 348 Mo.
949, 156 S.W.2d 683, 685, 138 A.L.R. 749.
EXECUTE. To complete; to make; to perform;
to do; to follow out. Glover v. American Mortgage
Corporation, Tex.Civ.App., 94 S.W.2d 1235,
1236.
To finish, accomplish, make complete, fulfill. To perform;
obey the injunctions of.
To make; as to execute a deed, which includes signing,
sealing, and delivery; performance of all necessary formalities.
Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1123,
1130; White v. Hendley, 35 Cal.App. 267, 169 P. 710, 713;
Hathaway v. Cook, 258 Ill. 92, 101 N.E. 227, 228; Williams
v. Kidd, 170 Cal. 631, 151 P. 1, 8, Ann.Cas.1916E, 703. The
"execution" of a note involves not only the signing but the
delivery of the note. Kennedy & Parsons Co. v. Lander
Dairy & Produce Co., 36 Wyo. 58, 252 P. 1036, 1038, 51 A.
L.R. 315; Lynch v. Figge, 192 N.Y.S. 873, 876, 200 App.
Div. 92; Perko v. Rock Springs Commercial Co., 37 Wyo.
98, 259 P. 520, 522; The execution of a contract includes
performance of all acts necessary to render it complete as
an instrument. Hofgesang v. Silver, 223 Ky. 101, 3 S.W.2d
185, 186; To make and sign contract, Glick v. Daniel, 184
Ark. 576, 42 S.W.2d 1007, 1008.
To perform; carry out according to its terms; as to
execute a contract, or a writ. State v. Miller, 104 W.Va.
226, 139 S.E. 711, 712; Harrity v. Steers, 185 N.Y.S. 704,
195 App. Div. 11.
To fulfill the purpose of ; to obey; to perform the commands
of ; as to execute a writ.
A statute is said to execute a use where it transmutes
the equitable interest of the cestui que use into a legal estate
of the same nature, and makes him tenant of the land
accordingly, in lieu of the feoffee to uses or trustee, whose
estate, on the other hand, is at the same moment annihilated.
1 Steph.Comm. 339.
Word "sign" as used in trial court's general oral charge
and in special written charge given at request of defendant
was synonymous with word "execute". Kinney v. Glenn,
29 Ala.App. 478, 198 So. 250, 253.
EXTREME CASE. An extreme case, in which
an injunction granted inadvertently or improvidently
may be dissolved ex parte, means one in
which the injunction was manifestly granted improperly,
and its continuation until hearing in due
course might cause great injury. Teacle v.
Hughes, 146 La. 195, 83 So. 457, 458.
FAST BILL OF EXCEPTIONS. One which may
be taken in Georgia in injunction suits and similar
cases, at such time and in such manner as to bring
the case up for review with great expedition. It
must be certified within twenty days from the
rendering of the decision. Sewell v. Edmonston,
66 Ga. 353.
FORUM NON CONVENIENS. The doctrine is
patterned upon the right of the court in the exercise
of its equitable powers to refuse the imposition
upon its jurisdiction of the trial of cases even
though the venue is properly laid if it appears
that for the convenience of litigants and witnesses
and in the interest of justice the action should
be instituted in another forum where the action
might have been brought. Hayes v. Chicago, R. I.
& P. R. Co., D.C.Minn., 79 F.Supp. 821, 824. The
doctrine presupposes at least two forums in which
the defendant is amenable to process and fur-
nishes criteria for choice between such forums.
Wilson v. Seas Shipping Co., D.C.Pa., 78 F.Supp.
464, 465; Neal v. Pennsylvania R. Co., D.C.N.Y., 77
F.Supp. 423, 424. The application of the doctrine
rests in the sound discretion of the court and the
factors to be considered in the doctrine are the
private interests of the litigant and the interest of
the public. Cullinan v. New York Cent. R. Co., D.
C.N.Y., 83 F.Supp. 870, 871. And a court, either
state or federal, will generally decline to interfere
with or control by injunction or otherwise the
management of internal affairs of a corporation
organized under the laws of another state, leaving
controversies as to such matters to courts of state
of domicile. Garrett v. Phillips Petroleum Co.,
Tex.Civ.App., 218 S.W.2d 238, 240; Murray v. Union
Pac. R. Co., D.C.Ill., 77 F.Supp. 219; Kelley v.
American Sugar Refining Co., C.C.A.Mass., 139 F.
2d 76; Tiuoli Realty v. Interstate Circuit, C.C.A.
Tex., 167 F.2d 155; Rogers v. Guaranty Trust Co.,
288 U.S. 123, 53 S.Ct. 295, 77 L.Ed. 652, 89 A.L.R.
720.
The rule is an equitable one embracing the discretionary
power of a court to decline to exercise jurisdiction which it
has over a transitory cause of action when it believes that
the action may be more appropriately and justly tried
elsewhere. Leet v. Union Pac. R. Co., 155 P.2d 42, 44, 25
Ca1.2d 605.
In determining whether doctrine should be applied, court
should consider relative ease of access to sources of proof,
availability of compulsory process for attendance of unwilling
witnesses, cost of obtaining attendance of willing wig
nesses, possibility of view of premises, and all other practical
problems that make trial easy, expeditious and inexpensive.
Di Lella v. Lehigh Val. R. Co., D.C.N.Y., 7 F.R.
D. 192, 193.
IMPROVIDENTLY. A judgment, decree, rule,
injunction, etc., when given or rendered without
adequate consideration by the court, or without
proper information as to all the circumstances affecting
it, or based upon a mistaken assumption
or misleading information or advice, is sometimes
said to have been "improvidently" given or issued.
INJUNCTION. A prohibitive writ issued by a
court of equity, at the suit of a party complainant,
directed to a party defendant in the action,
or to a party made a defendant for that purpose,
forbidding the latter to do some act, or to
permit his servants or agents to do some act,
which he is threatening or attempting to commit,
or restraining him in the continuance thereof, such
act being unjust and inequitable, injurious to the
plaintiff, and not such as can be adequately redressed
by an action at law. Dupre v. Anderson,
45 La.Ann. 1134, 13 So. 743; City of Alma v. Loehr,
42 Kan. 368, 22 P. 424. A judicial process operating
in personam, and requiring person to whom
it is directed to do or refrain from doing a particular
thing. Gainsburg v. Dodge, 193 Ark. 473,
101 S.W.2d 178, 180.
Final injunction
One granted when the rights of the parties are determined;
distinguished from a preliminary injunction.
Southern Pac. R. Co. v. Oakland, C.C.Cal., 58 F. 54.
Interlocutory injunction
One granted prior to the final hearing and determination
of the matter in issue, and which is to continue until
answer, or until the final hearing, or until the further
order of the court. Gas & Electric Securities Co. v. Manhattan
& Queens Traction Corporation. C.C.A.N.Y., 266 F.
625, 632
Mandatory injunction
One which (1) commands the defendant to do some positive
act or particular thing; (2) prohibits him from refusing
(or persisting in a refusal) to do or permit some act to
which the plaintiff has a legal right; or (3) restrains the
defendant from permitting his previous wrongful act to
continue operative, thus virtually compelling him to undo
it. Bailey v. Schnitzius, 43 N.J.Eq. 178, 16 A. 680.
Permanent injunction
One intended to remain in force until the final termination
of the particular suit. Riggins v. Thompson, 96 Tex.
154, 71 S.W. 14.
Perpetual injunction
An injunction which finally disposes of the suit, and is
indefinite in point of lime. Riggins v. Thompson, 96 Tex.
154, 71 S.W. 14.
Preliminary injunction
An injunction granted at the institution of a suit, to
restrain the defendant from doing or continuing some act,
the right to which is in dispute, and which may either be
discharged or made perpetual, according to the result of
the controversy, as soon as the rights of the parties are
determined. Darlington Oil Co. v. Pee Dee Oil Co., 62 S.C.
196, 40 S.E. 169: Appeal of Mammoth Vein Consol. Coal
Co., 54 Pa. 188.
Preventive injunction
One which prohibits the defendant from doing a particular
act or commands him to refrain from it. Leaksville
Woolen Mills v. Spray Water Power & Land Co., 183 N.C.
511, 112 S.E. 24, 25.
Provisional injunction
Another name for a preliminary or temporary injunction
or an injunction pendente lite.
Special injunction
An injunction obtained only on motion and petition,
usually with notice to the other party. Aldrich v. Kirkland,
6 Rich.Law S.C. 340; 4 Steph.Comm. 12, note z.
Temporary injunction
A preliminary or provisional injunction, or one granted
pendente lite; as opposed to a final or perpetual injunction.
Jesse French Piano Co. v, Porter, 134 Ala. 302, 32 So. 678,
92 Am.St.Rep. 31.
PROVISIONAL INJUNCTION. Sometimes,
though not correctly, used for interlocutory injunction.
PROVISIONAL REMEDY. A remedy provided
for present need or for the immediate occasion;
one adapted to meet a particular exigency. Particularly,
a temporary process available to a plaintiff
in a civil action, which secures him against
loss, irreparable injury, dissipation of the property,
etc., while the action is pending. Such are
the remedies by injunction, appointment of a receiver,
attachment, or arrest. The term is chiefly
used in the codes of practice. Snavely v. Abbott
Buggy Co., 36 Kan. 106, 12 P. 522.
RESTRAINING ORDER. An order in the nature
of an injunction. See Order.
TERMS TO BE UNDER. A party is said to be
under terms, when an indulgence is granted to
him by the court in its discretion, on certain conditions.
Thus, when an injunction is granted ex
parte, the party obtaining it is put under terms to
abide by such order as to damages as the court
may make at the hearing. Moz. & W.