Ex parte CARLTON et al., 5 F. Cas. 86

STORY, Circuit Justice. I do not think that there is any real difficulty in the question certified; and the learned judge certified it to this court rather as a matter of general practice to be settled in cases of this sort, which are growing numerous, so that a uniform rule maj’ prevail, than from any doubts entertained by him. The district court, sitting in bankruptcy, has general equity jurisdiction, and may summarily do whatever a court • of equity may do in the ordinary course of its practice and proceedings.

Now, nothing is more common than for a court of equity, in its discretion, to grant an injunction ex parte, without notice to the other side, the injunction, however, to continue only until the other party chooses to appear and contest it, and move for its dissolution.

This being clearly, upon principle, the right and duty of the court and the necessity of the prompt interference of the court to prevent irreparable mischiefs being of not infrequent occurrence, there is no reason why the district court, sitting in bankruptcy, may not issue an injunction ex parte in fit cases, in its discretion, unless there be some statute provision, which limits the right, or requires a previous notice to the other party.

Indeed, in cases of bankruptcy, it would seem peculiarly fit for the court so to act, for it is impossible that many exigencies should not arise, requiring the immediate interposition of the court to prevent irreparable injury or injustice; and, as the court is always open, no injury can occur to the adverse party by reason of delay, as he may forthwith move for the dissolution of the injunction, as soon as it has been served upon him.

Now, there is no statute of the United .States, which imposes the slightest limitation upon the exercise of the power to issue injunctions, or requires notice thereof, unless in cases provided for by the act of congress of the 2d of March, 1793, c. 66 (chapter 22 [1 Story's Laws, 310; 1 Stat. 334, c. 22], § 5), and the act of congress of the 13th of February, 1807, c. 68 (chapter 58 [2 Story’s .Laws, 1043; 2 Stat. 41S, c. 13]).

But neither of these statutes has any application to cases in bankruptcy in the district courts, nor, indeed. to any cases except those which are pending in the circuit court in the exercise of its ordinary jurisdiction. The former act requires reasonable notice of the application for an injunction to be given to the adverse party, before the injunction is granted in causes pending in the circuit court. The latter act confers authority on the district judges to grant injunctions in like manner, upon notice, in all cases pending in the circuit court.

These acts, therefore do not touch the jurisdiction of the district court in the administration of equity in bankrupt cases. And as they do not contemplate the classes of cases created by the bankrupt act of 1S41 [5 Stat. 441], it is obvious that their provisions are inapplicable to it; and leave the jurisdiction to grant injunctions upon the general practice and principles which govern courts of equity. ,1 shall therefore direct a certificate to the district court, that a writ of injunction can be granted by the district court in bankruptcy without previous notice to the adverse party.