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 tr« 
 
 ^^-
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 Ml ' ' 
 
 A 
 
 TREATISE 
 
 ON 
 
 Cfje %sCts) 
 
 OF 
 
 INJUNCTIONS, 
 
 BY 
 
 THE HON. ROBERT HENLEY EDEN, 
 
 OF Lincoln's inn, barrister at law. 
 
 LONDON : 
 
 PRINTED FOR JOSEPH BUTTERWORTH AND SON, 
 
 LAW BOOKSELLEllS, -^S, FLEKT-STREKT j 
 
 AND JOHN COOKE, ORMOND QUAY, DUBLIN. 
 
 182L
 
 T 
 
 '53 
 
 ^zc^l
 
 CONTENTS. 
 
 Page 
 
 CHAPTER I. 
 Of Injunctions in general - _ - - 1 
 
 CHAPTER II. 
 
 Of Injunctions to stay Proceedings at Law. — In what 
 Cases granted - - - - - S 
 
 CHAPTER III. 
 
 In what Manner Injunctions to stay Proceedings at Law 
 are obtained - - - - . - 45 
 
 CHAPTER IV. 
 
 Of the Extent and Effect of the Common Injunction, and 
 in what Manner it may be extended to stay Trial - 66 
 
 * CHAPTER V. 
 
 Of the Motion to dissolve Injunctions to stay Proceedings 
 at Law, and what Cause may be shown against it - 88 
 
 CHAPTER VL 
 
 Of continuing, dissolving, and reviving Injunctions to 
 stay Proceedings at Law, and of the Effect of Amend- 
 ment and Abatement - - - - 112 
 
 a
 
 VI CONTENTS. 
 
 CHAPTER VII. 
 
 Oflnjunctions to stay Proceedings in the Spiritual Courts, 
 the Courts of Admiralty, &c. - - - 137 
 
 CHAPTER vni. 
 
 Of Injunctions to stay Waste. What Acts are deemed 
 Waste - - - - - - 144 
 
 CHAPTER IX. 
 
 In what Cases, and for and against what Persons, a Court 
 of Equity will interpose to restrain the Commission of 
 Waste -->..- 158 
 
 CHAPTER X. 
 
 Of Decrees for Account and Satisfaction of Waste. Tiie 
 Application of Timber accidentally severed, or directed 
 by the Court to be felled - . - . 206 
 
 CHAPTER XI. 
 
 Of Injunctions to stay Purprestures and Nuisances - 222 
 
 CHAPTER XII. 
 
 Of Injunctions to restrain Infringement of Patents - 239 
 
 CHAPTER XIII. 
 
 Of Injunctions to restrain the Infringement of Copy- 
 right - - - - - - 264 
 
 CHAPTER XIV. 
 
 Of Special Injunctions and Interlocutory Orders in the 
 Nature of Injunctions - - _ . 090 
 
 CHAPTER XV. 
 
 Practice of Courts of Equity in granting, continuing, and 
 dissolving Special Injunctions - . _ 32O
 
 F 
 
 CONTENTS. Vll 
 
 CHAPTER XVI. 
 
 Injunctions to restrain vexatious Litigation - - 332 
 
 CHAPTER XVII. 
 
 Of Injunctions to yield up, quiet, or continue Possession 
 
 of Lands ------ o()3 
 
 APPENDIX. 
 
 Order for an Injunction on a Dedimus - - 367 
 
 Docket upon an Injunction on a Dedimus - - 368 
 
 Order for an Injunction on an Attachment - - 369 
 
 Docket for an Injunction on Attachment - - ib. 
 
 The Form of a Writ of Injunction _ - - 370 
 
 On a Dedimus - _ - _ _ 372 
 
 On an Order for Time - - - - ib. 
 
 On an insufficient Answer - - - - ib. 
 
 Of an Attachment for Want of an Answer - - ib. 
 Form of an Injunction in tlic Exchequer to stay Proceed- 
 ings at Law _ _ - - - 373 
 Notice of Motion for an Injunction upon opening a 
 
 material Exception or Merits _ _ . 374, 
 Injunction till Hearing . - _ _ ib. 
 An Injunction to stay committing Waste - - 375 
 A Special Injunction to stay the Defendants from copy- 
 ing, engraving, &c. and selling of Prints - - 376 
 Injunction to stay Proceedings in the Spiritual Court - 378 
 Injunction to stay Proceedings in the Court of Admiralty 379 
 Injunction in the Exchequer to stay Proceedings in 
 Chancery ------ 380 
 
 Injunction to quit Possession before Hearing - - 381 
 
 Perpetual Injunction - - - - - ib. 
 
 Perpetual Injunction on a Bill taken pro confesso - 382 
 
 Bill of Costs for a Plaintifl" in an Injunction Cause - 384 
 
 Bill of Costs for the Defendant in the same Cause - 387 
 
 a2
 
 INDEX OF CASES, 
 
 AnjjOT V. Massic, 7. 
 
 , Keniicll V. 7. 
 
 Abdee's case, 5. 
 
 Abrahall v. Bubb, 177. 185. 
 
 Abergavenny, Lord, Conyers v. 
 
 Abney, Cherington v. 231 . 233. 
 Abthorp V. Jennings, 137. 
 Accuner, Kenworth v. 54. 
 Achcrley v. Vernon, 47. o5o. 
 Ackland v. Atwell, 201. 
 Acton V. Market, 117. 
 Adair v. Shaftoc, 157. 
 Adams, Ponsonby v. 22. 
 A damson, Kniglit v. 352. 
 Adlington v. Cann, 16. 
 Agar t;. Regent's Canal Company, 
 
 315. 
 Aikin, Wilkins v. 282. 
 Ainge, Harding v. 359. 
 Ainsley, City of London v. 3G1. 
 Akliurst V. Johnson, 6. 
 Alden v, Gregory, 12. 
 Aldrich V. Cooper, 38, 
 Aldridge v. Mesner, 337. 348. 
 
 -' , Strickland v. IG. 
 
 '— ' V. Thompson, 348. 
 
 Alexander, Crockford v. 170. 193. 
 
 Aleyn v. Belshier, 17. 
 
 Allaly, Dean v. 154. 
 
 Allen, Box r. 230. 
 
 , Lord, Cane v. 13. 
 
 V. Harding, 27. 
 
 V. Hilton, 23. 
 
 , Keate u. 14. 
 
 , King V. 86. 
 
 , Macguire v. 304. 
 
 , Taylor v. 300. 302. 
 
 Aller V. Jones, 323. 
 Allington, Boteler v. 299. 
 Alnete v. Bcttam, 341 . 
 Alsager v. Rowley, 301 . 
 Alston, Lee v. 148. 210. 
 Amhurst v. Dowling, 45. 299. 
 Ancastcr, Duke of, Attorney Ge- 
 neral V. 321. 
 Ancell, Stuart v. 130. 
 Anderson v. Burnett, 343. 
 
 , Camden t;. 11. 
 
 V. Darcy, 54. 
 
 V. Lewis, 53, 
 
 V. Maltby, \6. 
 
 , Stevenson v. 343. 348. 
 
 Anderton, Harrow School t'. 159.
 
 INl)i:X OF CASES. 
 
 Andcrton v. Street, '505. 
 Andover, Evvelme Hosj/ital v. o59. 
 Andre, Royal Exchange Company 
 
 V. 78. 
 Andrews, Earl of Carlisle v. 337. 
 
 V. Dobson, 7. 
 
 , Powis V. 301. 
 
 Angel V. Hadden, 339. 
 
 , Keenc v. 356. 
 
 Angerstein v. Hunt, 148. 
 
 V. Wentworth, 56. 
 
 Angove, Dungey v. 341. 345, 346. 
 Anguish, Smallpiece v. 300. 
 Ajniandale, Marchioness of, v. 
 
 Harris, 18. 
 Annesley, Rookes v. 65. 
 Anon. (1 Atk. 263.) 
 
 (lb. 491.) 139. 
 
 (2 Atk. 644.) 7. 
 
 (3 Atk. 19.) 100. 
 
 (lb. 350.) 140. 
 
 (lb. 394.) 126. 
 
 (lb. 485.) 329. 
 
 (ib. 567.) 57, 66. 
 
 (Barnard) 129. 
 
 (Bunb. 53.) 12. 
 
 (lb. 251.) 89. 
 
 (3 Ch. Rep.) 333. 
 
 (Dick.) 321. 
 
 (Eq. Ab.) 237. 
 
 (Harg. MSS.) 312. 
 
 (Hind) 51 . 
 
 (Leon) 148. 
 
 (Mose) 34. 
 
 ■ (1 P.W. 301.) 143. 
 
 (ib. 311.) 111. 
 
 (3 P. W.) 35. 
 
 Anon. (Salk.) 135. 
 
 (Sel. Ca. Ch.) 61. 
 
 (1 Vern. 180.) 5. 
 
 (ib. 351.) 349. 
 
 (1 Ves. 213.) 33. 
 
 (ib. 426.) 234. 
 
 (2 Ves. 193.) 237. 
 
 (lb. 414.) 234. 
 
 (1 Ves.jun. 91.) 35. 
 
 (ib. 93.) 298. 
 
 (lb. 140.) 331. 
 
 (12 Ves.) 300. 
 
 V. Blackwood, 298. 322. 
 
 V. Coply, 183. 
 
 V. Eaton, 279. 
 
 , Henry v. 96. 
 
 , Jones y. 81. 84. 
 
 , Leadbetter v. 289. 
 
 , Leshe v. 53. 
 
 5 Lowe V. 340. 
 
 , Duke of Mai'lboroufih v. 
 
 186. 
 
 — , Onslow V. 200. 
 — , Peel V. 12. 
 — , Pellew r. 97. 
 — , Shirey v. 348. 
 — , Thomas r. 97. 
 — , Watson V. 282. 
 
 Antill, Kempe r'.'38. 
 Appleyard v. Seton, 82. 84. 
 Archbold, Magrane v. 23. 
 Archer, Griffin v. 93. 
 
 V. Preston, 142. 
 
 , Lad}', 7'. Lady Plymouth^ 
 
 161. 190. 
 Argliisse,Earlof,t'.]\ruschamp,142, 
 Ark Wright y, Nluhtinoale. 251.
 
 INDEX OF CASES. 
 
 XI 
 
 Ark Wright, Rex v. 251. 
 Arniitagc, Pilling v. 12. 
 
 , Senior v. 199. 
 
 V. Wadswortl), 350. 
 
 Arnot V. Biscoc, 12. 
 
 , Cartwright v. 242. 
 
 Arthington v. Fawkcs, 360. 
 Arthur, Macnamara v. 48. 
 ArundfiU v. Arundcll, 358. 
 
 V. Trevillian, 14. 18. 
 
 , Lady, Phipps v. 313. 
 
 Aschughe v. Shelton, 325. 
 
 Ash, Nash i;. 21. 
 
 Ashburton v. Ashburton, 219- 
 
 Asliconibe's case, 354. 
 
 Ash ton, Sharpe v. 89. 121, 122, 
 
 123. 
 
 , Wilbeam v. 22. 
 
 Askew V. Pouherers'' Company, 
 
 353. 
 
 V. Townsend, 352. 
 
 Ask with. Lord Darcy v. 150. 
 
 Astley V. Weldon, 22. 
 
 Athol, Duke of. Earl of Derliy v. 
 
 142. 
 
 , Lanoy v. 37, 88. 
 
 Atkins V. Hatton, 362. 
 
 V. Temple, 149. 
 
 V. Wright, 160. 322. 
 
 Atkinson v. Henshaw, 302. 
 
 , Johnson v. 341. 
 
 , Philips V. 306. 
 
 V. Plummcr, 298. 
 
 Attorney General v. Duke of An- 
 
 caater, 321. 
 • V. Bentham, 231. 
 
 327. 
 
 Attorney General v. Burrows, 329. 
 
 V. Cecil, 51. 
 
 c'. Cleaver, 226. 
 
 236, 237. 
 
 f. Doughty, 236. 
 V. Lord Dudley, 
 
 1^ 
 
 Hospital, 226. 
 
 -,Erringtonr.343. 
 
 - V. Finch, 134. 
 
 - V. Forbes, 224. 
 V. Foundling 
 
 231. 237. 
 
 238. 322. 
 
 147. 
 
 r.Fullarton, 362. 
 
 - V. Gale, 295. 
 
 - V. Geary, 203. 
 
 - V. Ilesketh, 299. 
 
 - V. Johnson, 224. 
 
 - t'. Nichol, 231. 
 
 - V. Philjwt, 223. 
 
 - V. Lord Stawell, 
 
 -, Vicars v. 16. 
 
 Attwell, Ackland v. 201. 
 
 , Leonard v. 73. 
 
 Atwood, Lamprey v. 10. 
 AykwcU, Smith r. 15. 18. 292, 
 
 293, 302. 
 Ay let 0. Ay let, 141. 
 
 t . Dodd, 198. 
 
 r. Hill, 37. 
 
 Ayncsly, Errington i. 27- 
 
 Bach V. Longman, 274. 
 Bagster i . Waller, 125. 
 Bagwell, Stevens v. 18.
 
 Xll 
 
 INDEX OF CASES. 
 
 Jiailc}-^, Bolllic, or Baylcy, v. Dc- 
 
 vcrcux, 34. 
 
 V. Fisher, 96. 
 
 , Dinwiddic v. 29. 
 
 V. Larkens, 54. 
 
 V. Corporation of Leomin? 
 
 ster, 23. 
 V. Punard, 344. 
 
 Baker, Barnes v. 226. 230. 
 
 , Earl Covvpcr v. 195. 
 
 , V. Holmes, 52. 
 
 , Holtzappfell v. 5. 
 
 ■ V. Lowe, 141. 
 
 r. Mellish, 350. 
 
 V. Rogers, 332. 
 
 V. Shackle, 311. 
 
 Baldwin, Echliff v. 292. 
 
 , JefFerys r. 26,7. 
 
 -■ V. Rochfort, 14. 
 
 Ball, Manlover. 14. 
 
 v. Montgomery, 15. 
 
 ', V. Oliver, 302. 
 
 BaUer v. Walker, 273. 
 Baltimore, Lord, Penn v. 142. 
 
 ■ V. Reynell, 332. 
 
 Bamfield v. Bluett, 354. 
 Bampton, Dench v. 197. 
 Bancroft v. Wentworth, 18. 
 Banks, Witherington v. 165. 
 Bannister, Gwinett v. 43. 
 
 r. Sadler, 150. 
 
 Barber v. Chapman, 11. 
 
 V. Hunter, 350. 
 
 , Yates r. 86. 
 
 Barclay, Hill v. 26. 
 
 , Doe V. 356. 
 
 Barefoot, Fry v. 357, 
 
 Barker, Blundell v. 12. 
 
 t. Goodau-, 30. 141. 
 
 , Kinsman v. 7. 
 
 , Rous V. 362. 
 
 , Royal Exchange Assur- 
 ance V. 94. 
 V. Vansommer, 16. 
 
 Barnard, Wyatt v. 280. 
 
 , Lord, Vane v. 178. 
 
 Barnes v. Baker, 226. 230. 
 Barnett, Vane v. 304. 
 
 V. Weston, 12. 
 
 Barnsley v. Powell, 302. 
 Barnwell, Kenny t . 96. 99. 
 Barrett, Blagrave v. 309- 
 
 r. Burke, 23. 
 
 V. Pearson, 23. 
 
 Barritt, Thoburn i. 100. 
 Barry, Brodie v. 304. 
 
 , Sims f. 6. 
 
 Barton, French v. 132. 
 
 V. Glover, 22. 
 
 Bartrop, Eyre v. 40. 
 Baskett v. Cambridge University, 
 270. 
 
 V. Cunningham, 270. 285. 
 
 V. Parsons, 270. 
 
 V. Watson, 270. 
 
 Bassett v. Bassett, 164. 
 
 , Mousely V. 35. 
 
 Bateman, Bethune v. 106. 
 
 V. Johnson, 231. 236. 
 
 V. Murray, 23. 
 
 • , Stephens v. 12. 
 
 V. Willoe, 1 1. 29. 
 
 Bates V. Graves, 354. 
 
 Bath, Earl of, v. Sherwin, 357.
 
 INDEX OF CASES. 
 
 xm 
 
 Bath and Wells, Bishop of, Phipps 
 
 V. 305. 
 Bathurst v. Burden, 198, 
 
 V. Kearsley, 271. 
 
 Battel, Hollard v. 356. 
 Battersby v. Smith, 16. 
 Bax ex parte, 29. 
 Bay lis, Caldwall v. 160. 
 Baynham v. Guy's Hospital, 23. 
 
 175. 
 Bazeley, Hugonin v. 13. 304. 319. 
 
 , Turner v. 124. 
 
 Beard v. Travers, 297. 
 BeatnifFx;. Smith, 12. 
 Bearcroft, Compton r. 304. 
 Beaufort's, Duke of, case, 231. 
 
 , Roy V. 17. 22. 
 
 , Earl of Warwick r. 134. 
 
 Beaumont r. Boultbee, 41. 
 
 r. Field, 44. 85. 
 
 T'. Sharp, 173. 
 
 Becher, Scott r. 67. 300. 
 Beck C3} parte, 242. 
 Beck V. Rebow, 154. 
 Beckett, Donaldson v. 269. 
 Beckford r. Dorington, 301. 
 
 V. Hood, 273. 
 
 , Quarrell v. 305. 
 
 Bedford, Corporation of. Monk- 
 house r. 319. 
 
 , Duke of, V. Coke, 16. 
 
 , Level Company, Redshaw 
 
 V. 175. 
 
 Bclchicr, Aleyn v. 17. 
 
 Belfast, Lord, Gcast r. 198. 
 
 Bell V. Ollcilly, 36. 
 
 Bell I . Walker, 280. 
 Bellamy x". Bun-ow, 18. 
 Bellingham v. Bruty, 134. 
 Benbow v. Heme, 159. 
 Benfield v. Solomon, 301, 
 Bennett ex parte, 13. 
 
 V. Vade, 13. 
 
 Benson v. Townrow, 29. 
 
 , Turton t). 14. 
 
 Bentley, Rawstone v. 22. 
 Benthara, Attorney General v. 231. 
 
 327. 
 Ryder, 231. 236. 327. 
 
 381. 
 Beresford, Bank of Ireland v. 40. 
 
 Du Bostr;.283.315,316. 
 
 Berkeley v. Brymer, 108. 293. 
 
 V. Hussey, 7. 
 
 Berkeley's, Lord, lessees, Morris v, 
 
 231. 
 Berric, Bowles v. 176. 
 Berry, ex parte, 131. 
 
 -• V. Style, 5. 
 
 Berrisford v. Milward, 12, 
 Berthoud f. Cousins, 87. 
 Bethell, Vernon v. 14. 
 Bethune z\ Bateman, 106. 
 Bettam, Alnete v. 341. 
 Betterton, Rex v. 224. 
 Bewick v. Whitfield, 214. 
 Bewit, Whitfield v. 155. 214. 
 Bicknell, Evans r;. 11, 12. 
 Bignal v. Langton, 295. 
 Bilbie v. Lumley, 10. 
 Bill V. Body, 35. 
 Bingham v. Bingham, 9. 
 Bingley, Williams i'. 306.
 
 XIV 
 
 INDEX OF CASES. 
 
 IJinkes, Troiighton v. 308. 
 
 IJircot's case, 258. 
 
 Blrcli, Bishton v. 80. 83. 94, 95. 
 
 101. 
 
 , Bott T'. 109. 
 
 V. Corbyn, 343. 
 
 , Fairfield v. 17. 
 
 V. Holt, 227. 
 
 Bird, Edmonds v. 302. 
 
 , Molincux X). 301. 
 
 , Nesbit, t;. 51. 
 
 Bird wood, Raphael v. 81. 95. 97. 
 Birmingham Canal Company v. 
 
 Lloyd, 156. 
 Biscoe, Arnott v. 12. 
 Biscow, Shotbolt v. 337. 
 Bishop V. Church, 8. 
 
 V. Jessop, 67. 
 
 , Rattray v. 60. 
 
 Bishton v. Birch, 80. 83. 94. 95. 
 
 101. 
 Bittenson, East r. 140. 
 Blache, Constantein v. 15. 
 Blackall v. Combs, 1 1 . 
 Blackborne v. Edgley, 12. 
 Blackburne, Parker v. 52. 
 Blackett v. Finney, 137. 
 Blackwell v. Harper, 267. 
 
 V. Redman, 17. 
 
 Blackwood, v. 293. 322. 
 
 Blacoe v. Wilkinson, 85. 
 Bladwell v. Peyton, 14. 
 Blanchard v. Hill, 315. 
 Blanchett v. Foster, 15. 
 Bland, Latour i\ 274. 
 Blancy, Lord, v. Mahon, 166. 
 Bliss r. Boscawen, 121. 126. 129. 
 
 Bhss V. Collins, 134. 
 
 Bloom, Jesus College v. 207. 209, 
 210,211. 
 
 Blount V. Winter, 296. 
 
 Bluck, Wright v. 301. 
 
 Bluett V. Bampfield, 354. 
 
 Blundell v. Barker, 12. 
 
 Blunt, Boult V. 332. ^5. 
 
 Blythway, Dash wood i\ 37. 
 
 Boats, Shoolbred t;. 51, 
 
 Boddam, East India Company v. 5. 
 
 Body, Bill v. 35. 
 
 Boehm v. Macknaghten, 319. 
 
 Boheme v. Porter, 89. 
 
 Boiton, Maresco v. 322. 
 
 Bolt, Mayor of London r. 226. 
 230. 320. 
 
 Bolton V. Bull, 261. 
 
 , Franco v. 18. 
 
 Bolton, Duke of, Earl of Chester- 
 field V. 153. 
 
 Powlett V. 216. 
 
 V. Williams, 188. 215. 337. 
 
 Bond, Gomery v. 10. 
 
 V. Hopkins, 349. 
 
 V. City of Exeter, 359. 
 
 V. Duke of Newcastle, 33. 
 
 Booth V. Booth, 136. 
 
 , Partington v. 71. 
 
 , Walmesley r. 14. 
 
 Bordfield, Trinick r. 141. 
 
 Bordman v. Mostyn, 28. 
 
 Borlase, Draper v. \\. 
 
 Boscawen, Bliss v. 121. 126. 129. 
 
 Boson V. Statham, 16. 
 
 Boston, Mayor of, v. Jackson, 359. 
 
 Bolder v. Allington, 299-
 
 INDEX OF CASES. 
 
 XV 
 
 l^tham V. Clark, 102. 
 Bott V. Birch, 109. 
 Boulanger, Talleyrand v. 12. 
 Boult V. Blunt, 332. 365. 
 Boultbee, Beaumont v. 41. 
 Boulton V. Bull, 244. 
 
 , Hornblower v. 244. 
 
 , Sllngsby v. 342. 
 
 Bourdieu, Lowrie r. 10, 
 Bourke v. Lord Macdonald, 51. 
 Bouverie v. Prentice, 362. 
 Bovill V. Moore, 252, 253. 
 Bowen v. Edwards, 14. 
 
 , Largan v. 303. 
 
 Bowers, Reed v. 306. 
 
 Bowes, Earl of Darlington v. 354. 
 
 , Lamb v. 62. 
 
 , Lady Strathmore v. 12. 
 
 15. 180. 326. 328. 
 Bowles V. Berrie, 177. 
 
 , Carnan v. 282. 289- 
 
 , Jeffrey v. 289. 
 
 , Stewart v. 12, 13. 
 
 Bowmaker v. Moore, 40. 
 Bowser v. Hughes, 301. 
 
 V. Price, 136. 
 
 Box V. Allen, 230. 
 Boyd V. Heinzehnan, 35. 
 Boyle V. Lysaght, 23. 
 Boylston, Langston v, 338, 339. 
 
 345. 
 Bracebridge v. Buckley, 26. 
 V. Bracebridge, 364. 
 
 Brackenbury v. Brack cnbury, 7. 
 Brackley v. Pierson, 139. 
 
 •, Small V. \5. 
 
 Bradbury, Rum v. 62. 
 Bradley v. Strachy, 203. 
 
 Bradshaw, Key v. 14. 18. 
 Braham, Revett v. 82. 
 Braie, Tenant v. 18. 
 Braine, Wright v. 80. 82. 
 Bramhall v. Cross, 131. 
 Brander, Strachan v. 14. 18. 
 Brandon v. Flint, 27. 
 Brecknock Company v. Pritchard, 
 
 151. 
 Brett, Pratt v. 200. 
 
 , ScribblehiU v. 14. 18. 
 
 Brewster v. Clarke, 1 1 . 
 Bridge, Tilley v. 72. 
 Bridges v. Kilburn, 149. 
 Bridgman v. Green, 13. 
 Brightman's case, 5. 
 Brigstoke v. Mansel, 305. 
 Brisbane v. Dacres, 10. 
 Bristol, City of, v. Johnson, 223 
 Bristow V. Potts, 141. 
 Brockwell v. Winter, 232. 
 Broderick v. Broderick, 11, 12 
 Brodie v. Barry, 304. 
 
 , Williams v. 253. 
 
 Bromley, Primrose r. 8. 
 Bromfield, ex parte, 219. 
 Bromsgrove, Tenants of. How i'. 
 
 359. 
 Brook V. Skynner, 32. 
 Brooke v. Clarke, 265. 329. 
 
 , Henley v. 68. 
 
 Brooks V. Reynolds, 32. 
 
 , Watts V. 18. 
 
 Brown or Browne v. Byne, 134. 
 ■ , Uansey v. 98. 
 
 119. 
 
 Duddrid' 
 
 301.
 
 XVI 
 
 INDEX Ol' CASES. 
 
 Brown or Browne v. Frost, 40. 
 
 , liaise V. 43. 
 
 , Kenney v. 14. 
 
 , Muckleston v. 
 
 16. 
 
 - V. O'Dea, 16. 
 
 - V. Peck, 18. 
 
 - V. Poyntz, 35. 
 
 - V. Quilter, 5. 
 -, Tindal v. 41, 
 
 - V. Vermuden, 
 
 359. 
 
 Brownell v. Brownell, 7. 
 Bruce v. Bruce, 287. 
 
 V. Webb, 60. 
 
 Bruning, Goldsmith v. 19. 
 , Smith V. 14. 18. 
 
 Bruty, Belhngham v. 134. 
 Bryan v. Cormick, 306. 
 Brymer, Berkley r. 108. 293. 
 
 V. Buchanan. 346. 348. 
 
 Bubb, Abrahall v. 177. 185. 
 Buchanan, Brymer v. 346. 348. 
 Buck, Turner v. 212. 
 Buckingham, Duke of, v. Duchess 
 
 of Buckingham, 47. 48. 853. 
 , Marquis of, Curtis 
 
 t;. 291. 
 Buckland v. Hall, 28. 
 Buckle V. Mitchell, 17, 
 Buckley, Bracebridge v. 26. 
 Bull, Boulton V. 244. 261. 
 Bullas, Watts r. 21. 
 Bullen V. Bullen, 43. 
 
 V. Ovey, 69. 
 
 Buller 1-. Grey, 103. 
 Pullock V Dommitt, 151. 
 , Pigott V, 164. 
 
 Bullock v. Richardson, 18. 
 Bunney v. Thompson, 1 1 . 
 Burden, Lord Bathurst v. 198. 
 Burges, Lamb v. 189. 
 Burke, Bassctt v. 23. 
 
 V. Dawson, 17. 
 
 V. Vicars, 54. 
 
 Burn V. Burn, 8. 
 Burnett v. Anderson, 343. 
 
 , , Chetwood v. 281. 317. 
 
 Burrows, Attorney General v. 329, 
 
 ■ , Bellamy v. 18. 
 
 V. Elton, 301. 
 
 '■ V. Jemineau, 354. 
 
 V. Lock, 11. 
 
 Bush V. Field, 231. 
 
 V. Western, 361. 
 
 Butler, Davidson v. 131. 
 
 V. Freeman, 297. 
 
 , Potts z;. 117. 
 
 , Thompson v. 107. 
 
 Butterworth v. Robinson, 280. 
 Button, Piatt v. 287, 288. 
 Buxton V. Lister, 1 1 . 
 Byne, Browne v. 134. 
 
 , Clarke v. 342, 
 
 Byrne v. Byrne, 352. 
 
 Byron, Lord, v. Johnston, 289. 314. 
 
 , Robinson i;. 33 1 . 355, 
 
 Calcraft, Wadman t. 25. 
 Caldwall v. Bayliss, 160. 
 Caley, Waldo x;. 316. 
 Calliford, Longman v. 309. 
 Calvert v. Gazon, 174. 
 Cambridge University, Baskctt v, 
 
 270. 
 Camden v. Anderson, 11.
 
 INDEX OF CASES. 
 
 XV 11 
 
 Camden v. Morton, 5. 
 Cameron, Snow v. 88. 
 Camni, Harman r, 10. 
 Campbell v. Smith, 7. 
 Cane v. Lord Allen, 13. 
 Canham v. Jones, 314. 
 Cann, Adlington v. 16. 
 
 V. Cann, 12. 
 
 Cantillon, Lady Carrington r, 52. 
 Capel, Teele v. 17. 
 Careless v. Careless, 7. 
 Carew v. Carew, 165. 
 
 , Denis v. 364. 
 
 Carlen v. Drury, 307. 
 
 Carlisle, Bishop of, Fleming v. 
 
 188. 
 
 , Earl of, r. Andrews, 337. 
 
 , Corporation of, i'. Wilson, 
 
 29. 359. 
 Carlton v. Earl of Dorset, 15. 
 Carnevali, AVeskett v. 117. 
 Carpenter v. Heriot, 12. 
 
 , Shandon v. 96. 
 
 Carr, ex parte, 12. 15. 
 Carrington, Lady, v. Cantillon, 52. 
 Carte x. Carte, 16. 
 Carter v. Debrunc, 53. 
 Carteret, Toller r. 142. 
 Cartwright v. Arnott, 242. 
 Carwarden, Parry v. 17. 
 Carwick, Tait r. 131. 
 Cary r. Faden, 282. 289. 
 
 r. Kearsley, 281. 
 
 :'. Longman, 280. 
 
 Cassilis, Earl of, Kennedy i\ 143. 
 Castlemain, Lord, v. Lord Craven, 
 
 179. 
 Cator V. Jackson, 324. 
 
 Catwallell v. Wynne, 139. 
 
 Caves, Cecil v. 150. 
 
 Cecil, Attorney General v. 51. 
 
 V. Caves, 150. 
 
 V. Plaistow, 15. 
 
 r. Reilly, 56. 
 
 Chalie, Nichols v. 7. 
 Chalk V. Wyatt, 232. 
 Chamberlaync v. Dummer, 180, 
 
 181. 183. 320. 
 Chambers v. Goldwin, 7. 
 
 , Doe V. 356. 
 
 Chambury, Holder r. 362. 
 Champion, Hawkes r. 333. 
 
 , Herbert v. 10. 
 
 , Newland v. 301. 
 
 Champneys, Dayrell r. 163. 
 Chandler, Gascoync r. 143. 
 
 V. Thompson, 233. 
 
 Chandos, Duke of, Jalabcrt r. 6. 
 
 f. Talbot, 130. 
 
 Chaplin v. Chaplin, 16. 
 
 f. Cooper, 72, 73. ^ 
 
 Chapman's case, 160. 
 
 , Barker t. 11. 
 
 , Hallr. 131. 
 
 , Potter V. 112. 298. 
 
 Charnock, Gildenichi r. 53. 
 
 , Mossr. 11. 
 
 Charlton v. Charlton, 180. 
 
 V. Poulter, 306. 327. 
 
 Chauvel, MuUcr v. 299. 
 Chavany v. Vansommcr, 308. 
 Chavc, Richards v. 302. 
 Ciiedworth, Lord, r. Edwards, 293. 
 Cheney, Hunsden v. 11. 
 Cherington v. Abney, 231. 233. 
 Chesman t.. Nainby, 311.
 
 XVIU 
 
 INDEX OF CASES. 
 
 Chesterfield, Earl of, v. Duke of 
 Bolton, 151. 
 
 Chettle, Hardcastle v. 32. 33. 
 
 Chcttwood, Burnett v. 280. 317. 
 
 Chetwynd, Sutton v. 17. 
 
 Child V. Dandridge, 15. 
 
 , Lord Irnham t . 10. 
 
 , Walmesley r. 5. 
 
 Chilton, Gross v. 166. 
 
 Ching V, Ching, 7. 
 
 Chiswell, Gray v. 6. 8. 
 
 , Stevenson v. 6. 
 
 Cholmely, Fodringham v. 325. 
 
 , Harrison r. 332. 
 
 Cholmondeley, Lord, v. Lord Clin- 
 ton, 312. 
 
 Christian, Senhouse v. 157. 
 
 Christie v. Craig, 298. 
 
 Church, Bishop v. 8. 
 
 V. Legeyt, 119. 
 
 Churchman v. Tunstall, 234. 
 
 Cini, Stephens v. 54. 
 
 Clapham v. White, 111. 120. 
 
 Claridge v. Hoare, 18. 
 
 Clarke, Botham v, 102. 
 
 , Brewster r. 11. 
 
 , Brooke v. 265. 329. 
 
 v. Byne, 342. 
 
 f. Colibere, 359. 
 
 r. Devlin, 41. 
 
 V. Periam, 18. 
 
 , Poore, V. 359. 
 
 V. Price, 310. 
 
 , Smith r. 320. 
 
 V. Swaile, 18. 
 
 — r. Thorp, 149. 
 
 Clarkson ; . Han way, 13. 
 
 , Lady Petre v. 359- 
 
 Clavering v. Clavcring, 154, 1.55. 
 
 Clay, Douglas v. 32. 
 
 Clayton v. Lord Grey de Wilton, 
 
 17. 
 Clay worth, Cook v. 13. 
 Cleaver, Attorney General r. 226. 
 
 , Powell r. 297. 
 
 Clementi v. Goulding, 274. 
 Clerk, Cooper r. 360. 
 Cleverley v. Cleverley, 31. 33. 
 Clinton, Lord, Lord Cholmondeley 
 
 V. 312. 
 Cobb, Fines r. 359- 
 Cobby, Mills V. 69. 
 Cochrane, Lord, v. Smethurst, 249. 
 
 262. 
 Cock V. Donovan, 87. 
 
 V. Richards, 15. 22. 
 
 Cockburn, Daubeny v. 17. 
 Cockerell, Harrison i'. 300. 
 Cocking v. Pratt, 9. 12. 
 Codrington z\ Parker, 305. 
 Coglan V. Ragueneau, 117. 
 Colborne, The Queen v. 362, 
 Cole, Gibbs v. 327. 
 
 V. Gibson, 18. 
 
 , Green v. 149. 
 
 D. Peyson, 149. 160. 
 
 Coles V. Gurney, 52. 
 
 V. Trecotiiick, 5. 13, 14. 
 
 Colibere, Clarke v. 359. 
 Collard v. Hoare, 130. 
 Collett V. Jaques, 5. 
 Collier, Spurgeon v. 14. 
 Colhns, Bliss r. 134. 
 Collott V. Haigh, 41. 
 Collyer v. Smith, 196. 
 Colman, Morris ;. 309, 310.
 
 INDEX OF CASES. 
 
 XIX 
 
 Colman v. Wathen, 273. 
 Combs, Blackball t/. 11. 
 Comerford, Lucas v. 27. 
 Compton, Bearcroft v. 304. 
 
 , Ford V. 48. 
 
 , Lord Oxenden v. 219. 
 
 Comyns, Trusler v. 289- 
 Coney, Smith v. 7- 
 Coningsby's, Lord, case, 356. 
 Consett, Walker v. 7. 
 Constantein v. Blache, 15. 
 Conyers v. Lord Abergavenny, 339- 
 
 , Wake V. 362. 
 
 Cook and Cooke x'. Clay worth, 13. 
 
 ex parte, 16. 
 
 , Mansfield v. 63. 
 
 , Roberts v. 356. 
 
 ■, Smith V. 208. 
 
 V. Whaley, 178. 
 
 V. Winford, 185. 
 
 Cooper and Cowper v. Aldrich, 38. 
 V. Chaplin, 
 
 72, 73. 
 
 268. 
 
 149. 
 
 r. Clerk, 360. 
 
 r. Flindt, 64. 
 
 V, Gahagan, 
 
 , Hastings v. 
 
 , Osborne v. 
 
 96. 
 
 Cooper's Company r. Wildey, 10. 
 Cowper, Earl, v. Baker, 195. 
 
 Copley, I. 183. 
 
 Corbyn, Birch r. 343. 
 Cormick, Bryan r. 306. 
 Cormick r. Trapaud, 17. 
 Corntbrth v. Gcer, 7. 
 
 Corson v. Stirling, 97. 
 Cory t. Cory, 12, 13. 
 Cottencin, Hoare v. 6. 
 Cotton, Garth v. 167. 188. 209. 
 
 213, 214, 215. 
 
 V. King, 15. 
 
 Cottrell, Mortimer r. 193. 
 Coulsonr. White, 231. 
 Courthopc V. INIapplesden, 194. 
 Courtown, Lord, Ward f. 155. 
 Cousins, Berthoud v. 87. 
 
 V. Smith, 61. 
 
 Cousraaker, Kidney r. 9. 
 Cowtan V. Williams, 342. 
 Cox's, Lady, case, 18. 
 
 V. King, 32. 
 
 t . Jory, 45. 299- 
 
 V. Paxton, 293. 
 
 Coysgarne v. Jones, 140. 
 Craig, Christie v. 298. 
 Cranstown, Lord, v. Johnson, 142. 
 Craven, Lord, Dyer v. 299. 
 , Lord Castlemain 
 
 -c. 179. 
 Crawshay t. Maule, 308. 
 Crawter, Spear r. 362. 
 Cray, Lewis r. 219. 
 
 r. Rooke, 18. 
 
 Creagh, in re, 321. 
 Creed, Gubbins v. 299. 
 Creuze v. Hunter, 297. 
 Crew r. Mertins, 55. 
 Crockford r. Alexander, 198. 
 Croft r. Lindsey, 5. 
 
 r. Bowcll, 14. 299. 
 
 Croggon r. Symons, 344. 
 Crosby i'. Middlcton, 6. 
 Cross, Bramhall v. 131.
 
 XX 
 
 JNDEX OF CASES. 
 
 Cross, Daniel v. 6. 
 
 , Rex V. 9.9J1. 
 
 Crossan, Dc Salis v. 195. 
 Crow V. Tyrrell, 34-9. 
 Crutchfield, Pierce r. 66. 297. 
 CrutvvelU. Lye, 311.314. 
 Cryer, Currier v. 359- 
 Cue, Mitchell v. 136. 
 Culley f. Hickling, 117. 
 Culme, Mound v. 43. 
 Cunningham, Baskett v. 270. 285. 
 Curl, Knaplock v. 276. 
 
 , Pope V. 276. 
 
 Curling v. Lord Leycester, 303. 
 Currie v. Gould, 10. 
 Currier v. Cryer, 359. 
 Curtis V. Curtis, 72. 
 
 V. Marquis of Buckingham, 
 
 291. 
 
 , Hunburn v. 6. 
 
 — — , Johnson v. 7. 
 
 V. Perry, 11. 
 
 Custance, Holmes v. 7. 
 Cutlet V. Smith, 299- 
 
 Dacres, Brisbane v. 10. 
 Dalbiac v. Dalbiac, 15. 
 Dale, Hime v. 274. 
 Dalison, Whigglesworth v. 199. 
 Dahner v. Dashwood, 305. 
 Dalton V. Gill, 160. 
 
 , Kennet v. 73. 
 
 Dandridge v. Child, 15. 
 Daniel v. Cross, 6. 
 
 V. North, 232. 
 
 Dansey v. Browne, 98. 119. 
 Danvers v. Manning, 7. 
 Darcy, Anderson t\ 54. 
 
 Darcy, Lord, v. Ask with, 150. 
 Dare v. Hopkins, 218. 
 Darley, English v. 41. 
 Darlington, Earl of, v. Bowes, 354. 
 Darwin v. Upton, 232. 
 Dashwood v. Blythway, 37. 
 
 , Dalmer v. 305. 
 
 Davenport, Tanfield v. 130. 
 Davidson v. Butler, 131. 
 Davile v. Peacock, 49. 88. 
 Daubeny v. Cockburn, 17. 
 Davis, Drapers' Company v.\^. 
 
 V. Jones, 154. 
 
 V. Leo, 163. 323. 
 
 V. Duke of Marlborough, 
 
 303. 
 
 , Mitchell?;. 117. 
 
 , Saxton V. 301. 
 
 V. Wakefield, 139. 
 
 V. West, 24. 
 
 , Whitworth V. 92. 111. 
 
 Dawding, Amhurst v. 45. 
 Dawson, Burke v. 17. 
 
 V. Massey, 13. 
 
 , Sellas V. 131. 132. 
 
 Day V. Day, 314. 
 
 V. Ince, 134. 
 
 , Williams V. 178. 185. 
 
 Dayrell v. Champneys, 163. 
 Dean v. Allaly, 154. 
 Debenham v. Ox, 18. 
 De Berenger v. Wheble, 268. 
 De Brune, Carter v. 5S. 
 De Fai-ia, Gowland v. 14. 
 Delahay v. Tottenden, 332. 
 Delany v. Wallis, 54. 
 Delapole v. Delapole, 218. 
 Delraare v. Rcbello, 7.
 
 INDEX OF CASES. 
 
 XXI 
 
 Dclvyn, Lord, v. Smyth, 90. 109. 
 
 121. 
 De Manneville v. De ManneviUe, 
 
 68. 297. 
 Dench v. Bampton, 197. 
 Denis v. Carew, 364: 
 Derby, Earl of, v. Duke of Athol, 
 
 142. 
 De Roven, Dupleix v. 345. 
 De Salis v. Crossan, 195. 
 Desbouverie, Pusey v. 9. 12. 
 Devaynes v. Noble, 6. 8. 40. 
 Devereux v. Bailey, 34. 
 Deveuille, Griffin r. 13. 
 Devlin, Clarke t?. 41. 
 Dewsnap, Rex v. 230. 
 Dicey, Saycr v. 266. 
 Dick v» Mllligan, 7. 
 Dickenson, Lady Markham v. 120. 
 
 , Smith V. 22. 
 
 Dinwiddie v. Bayley, 29. 
 Disney r. Robertson, 359. 361. 
 Dixon V. Ewart, 11. 
 
 V. Redmond, 124. 
 
 ■ , Rew V. 141. 
 
 Dobson, Andrews v. 7. 
 Docker v. Horner, 303. 
 Dodd, Aylet v. 198. 
 Dodsley, Kennersley v. 281. 
 Dodswell, jNIiddleton v. 300. 
 Doe V. Barclay, 356. 
 
 V. (."hambcrs, 356. 
 
 -— V. Hatherley, 356. 
 
 V. Holdfast, 356. 
 
 1'. Laming, 151. 
 
 V. Martin, 169. 
 
 r. Roc, 356. 
 
 V. Stevenson, 356. 
 
 Doe V, Winch, 357. 
 Dolman v. Vavasor, 362. 
 Dommitt, Bullock v. 151. 
 Donald, East India Company v. 
 
 9. 13. 
 Donaldson v. Beckett, 269. 
 
 , Millar V. 285. 
 
 , Osborne v. 285. 
 
 , Ilowcroft v. SO. 89. 
 
 Donovan, Cock r. 87. 
 Donegal's, Lord, case, 13. 
 Doolittle V. Walton, 295. 
 Doran v. Simpson, 301. 
 Dore V. Gray, 229. 
 Dorrington, Beckford r. 301. 
 Dors, Mitchell v. 191. 
 Dorset, Duke of, v. Girdler, 361. 
 
 , Earl of, Carlton v. 15. 
 
 , Justices of, Rex v. 225. 
 
 Doubleday, Joseph v. 90. 
 Dougal V. Wilson, 232. 
 Doughty, Attorney General ?;. 236. 
 Douglas V. Clay, 32. 
 
 , Taxton v. 32, 33. 
 
 Dove V. Dove, 365. 
 Dowche V. Perrot, 333. 
 Dowling, Amhurst v. 299. 
 Dovvnes v. Grazebrook, 13. 
 
 , James v. 67. 126, 127. 
 
 , Wood V. 14. IS. 
 
 Downshire, ]SJarquis of, v. Lady 
 
 Sandys, 182. 
 Dowson V. Hardcastle, 348. 
 Drake, Wilson r. 297. 
 Draper v. Borlasc, 1 1 . 
 
 ^"s Company v. Davis, 11. 
 
 Drew V. Power, 7. 16. 
 Drury, Carlen v. 307.
 
 XXll 
 
 INDEX OF CASES. 
 
 Druiy V. ITookc, 14. 18. 
 
 V. Molinp, 200. 
 
 Drummond v. Olilscn, 8G. 
 
 Du Bost V. Beresford, 282. 315. 
 
 31G. 
 Dublin, City of, Vernon v. 335. 
 Duchatel, Hannington v. IS. 
 Diiddridge, Brown v. 301. 
 Dudley, Folliott v. 38. 
 
 -, Lord, Attorney General 
 
 V. 13. 
 
 V. Lord Ward, 152. 
 
 Dud man, Lord Montajiue v. 42. 
 Duke, Jervis v. 11, 12. 
 , Northcote v. 25. 
 Dulwich College v. Johnson, 301. 
 Dummer, Chamberlayne v. 180, 
 
 181. 183. 320. 
 Duncombe, Randall v. 358. 
 Dungey v. Angove, 341. 345, 346. 
 Dunkin, Earl of Granard v. 276. 
 Dunnage v. White, 12. 
 Durham, Bishop of, Jefferson v. 
 
 201, 202. 
 Durston V. Sandys, 17. 
 Dutton V. Morrison, 30. 
 Duplelx V. De Roven, 354. 
 Duplessls V, Knight, 302. 
 Dyche, Fletcher v. 22. 
 Dyer v. Lord Craven, 299. 
 
 I'. Dyer, 100. 
 
 V. Kearsley, 32, 33. 
 
 , Savory v. 49. 
 
 Eadon, Mossop v. 5. 
 Earnshaw v. Thornhill, 83. 94. 
 East V. Bittenson, 140. 
 V. Thornberry, 9. 
 
 Eastcourt, Siderson v. 43. 
 Eastabrookc v. Scott, 15. 
 East India Company v. Boddam, 5. 
 V. Donald, 9. 
 
 13. 
 
 342. 
 
 Company v. 231. 
 
 V. Edwards, 
 
 , Fishmonger's 
 
 , Law V. 40. 
 V. Neave, 6. 
 V. Sandys, 
 
 297, 298. 
 
 V.Vincent, 12. 
 
 157. 
 
 Eaton, 
 
 V. 279. 
 
 V. Graves, 14. 
 
 V. Lyon, 23. 175. 
 
 EcWiff, Baldwin v. 292. 
 Edensor v. Roberts, 348. 
 Edgeberry v. Stephens, 240. 
 Edgeley, Blackborne v. 12. 
 Edgeworth v. Edgeworth, 335. 
 Edrldge v. Edrldge, 298. 
 Edmonds v. Bird, 302. 
 
 V. Savery, 62. 
 
 Edwards, Bowen v. 14. 
 , Lord Ched worth v. 
 
 29^ 
 
 342. 
 
 -, East India Company v. 
 
 -, Hogarth v. 104. 
 
 - V. Jenkins, 126. 
 
 - V. Johnson, 106. 
 
 - V. rike, 16. 
 
 Edwin V. Thomas, 354, 
 Egerton, Head v. 12. 
 EUers, Wordcn v. 199. 330.
 
 F 
 
 INDEX OF CASES. 
 
 XXIU 
 
 Ellis V. Ellis, 295. 
 
 Elmslie v. Macaulay, 301. 
 
 Else, Rex v. 248. 250. 
 
 Elton, Burroughs v. 301. 
 
 Elwes V. Maw, 152, 153. 
 
 Ely, Bishop of, Lord King t;. 231. 
 
 England, Bank of, Glyn v. 5. 
 
 , Morrice v. 31, 
 
 32. 
 , Temple v. 294. 
 
 English V. Darley, 41. 
 Errington v. Attorney General, 
 343. 
 
 V. Aynsley, 27. 
 
 Erving, Peters v. 38. 
 Etches V. Lance, 324. 
 Eustace, Lord Kildare v. 142. 
 Evans t>. Bicknell, 11, 12. 
 
 ■ , Gallivan v. 301. 
 
 V. Llewellyn, 9. 12. 
 
 , Peacock t'. 14. 
 
 Eve V. Kimpton, 67. 200. 
 Evelyn's, Lady, case, 177. 188. 
 
 V. Evelyn, 305. 
 
 V. Templar, 17. 
 
 Ewart, Dixon v. 11. 
 
 Ewelmc Hospital v. Andover, 359. 
 
 Eyre v. Bartrop, 40. 
 
 V. Carnan, 270. 
 
 , Gower v. 147. 
 
 Eyres, Jason v. 14, 
 
 Exeter, City of. Bond v. 359- 
 
 Fadcn, Gary v. 282. 289. 
 Fairbrother v. Nerot, 337. 
 
 V. Prattent, 337. 
 
 Fairfield v. Birch, 17. 
 Falmouth, Lord, v. Innis, 332. 
 
 Fanshaw, Rotheram v. -137, 138. 
 
 323. 
 Farrant v. Lovel, 163. 165, 166. 
 Farrar v. Lewis, 81. 
 Fauconberg, Lord, v. Pierce, 354. 
 Faussett, Whitfield v. 5. 
 Fawdesley, Lewen v. 140. 
 Fawkes, Arthington v. 360. 
 Featherby, Tcrrewest v. 32. 
 Featherstonc, Hcskins v. 205. 
 Fell, Ex parte, 16. 
 Fenhoulet, Scott v, 7. 
 Fenner v. Maund, 149. 
 
 ■ , Mount V. 327. 
 
 Fentum v. Pocock, 41. 
 Fen^^icke, Langstaffe r. 10. 
 Feme, Franklyn v. SOI. 
 Ferrers, Lord, Lord Tam worth v. 
 
 102. 
 
 ■ , Hanning d. 11. 
 
 Field V. Beaumont, 44. 85. 
 
 , Bush V. 231. 
 
 V. Serres, 296. 
 
 , Taylor v. 30. 
 
 Fielding, Warwick Hospital v. 358. 
 Fifield, TAvigg v. 6. 
 Filewood v. Pahner, 332. 
 Finch, Attorney General v. 134. 
 
 V. Resbridgc, 361. 
 
 Fines v. Cobb, 359. 
 Finney, Blacket v. 137. 
 Fisher v. Bayley, 96. 
 Fishmongers' Company v. East 
 
 India Company, 231. 
 Fitton V. Lord Macclesfield, 355. 
 Fitzherbert v. Shaw, 154. 
 Fitzroy, Osmond- v. 13. 
 Fleetwood, Pritchard r. 303.
 
 XXIV 
 
 INDEX OF CASES. 
 
 1 
 
 FJcniing v. Bishop of Carlisle, 188. 
 
 Fletcher /;. Djchc, 2'^. 
 
 Flindt, Cooper v. C4. 
 
 Flint V. Brandon, 27. 
 
 Fluitt, riumb v. 12. 
 
 Fodringham, Chomely v. 325. 
 
 V. ^A'ilson, 86. 
 
 JFoley V. Moore, 175. 
 
 Folliott V. Dudley, 38. 
 
 v> Ogden, 38. 
 
 Foote, Tritton v. 175. 
 
 Forbes, Attorney General v. 224. 
 
 Ford V. Compton, 48. 
 
 , Yard v. 233. 235. 
 
 Fores v. Jones, 283. 
 
 Forman v. Homfray, 307. 
 
 Fon-ester v. Waller, 275. 
 
 Foster, Blanckett v. 15. 
 
 , Hide V. 53. 
 
 V. Saul, 332. 
 
 , Savage v. 12. 
 
 V. Vassal, 142. 
 
 Foundling Hospital, Attorney Ge- 
 neral V. 226. 
 
 •, Macher v. 
 
 201. 
 
 Fowler, Pechel v. 291- 
 
 Fox, Ex parte, 249. 260. 
 
 V. Hanbury, 39. 
 
 V. Mackreth, 13. 
 
 Foy, Way t;. 319. 
 
 Foyles, Venables v. 365. 
 
 Franco v. Bolton, 18. 
 
 V. Franco, 71. 
 
 V. Ximenes, 313. 
 
 Franklyn, Feme v. 301. 
 
 V. Thomas, 63, 64. 74. 
 
 Franks v. Franks, 12. 
 
 Frazer, Tliomas v. 8. 
 Freeborn v. Leisure, 43. 
 Freeman, Butler v. 297. 
 French v. Barton, 132. 
 
 V. Roe, .54. 
 
 Frogniorton v. Wharrey, 169. 
 Frost, Brown v. 46 
 Fry, Barefoot v. 357. 
 
 , Mills V. 35. 
 
 Fryer, Goate v. 32, 33. 
 Fullarton, Attorney General v. 326. 
 
 V. Wallace, 54. 
 
 Fuller V. Gibson, 339. 
 
 V. Willis, 134. 
 
 Furnes v. Lawes, 52. 
 
 Gadd V. Worrall, 127. 
 Gahagan v. Cooper, 268. 
 Gale, Attorney General v. 294. 
 
 V. Gale, 169. 
 
 V. Lindo, 14. 
 
 V. Reed, 311. 
 
 Gallatin, Goodeson v. 334;. 
 Gallivan v. Evans, 301. 
 Ganson, Tillotson v. 35. 
 Gardiner v. Griffiths, 299. 
 , Hanson v, 196. 198. 324. 
 
 360. 
 
 , Kilvington v. 14. 
 
 V. Mason, 53. 
 
 V. Walker, 138. 
 
 Garland, Noble v. 86. 
 
 , Smith V. 17. 
 
 Garlick v. Pearson, 80. 
 Garnum v. Marshall, 52. 
 Garratt, Hankey v. 30. 
 Garth v. Cotton, 167. 188. 209. 
 
 213, 214, 215.
 
 INDEX OF CASES. 
 
 XXV 
 
 Garvan, Goach v. 297. 
 Garvey v. Hibbcrt, 7. 
 Gascoyne, Chandler v. 143. 
 Geary, Attorney General v. 203. 
 Geast V. Lord Belfast, 198. 
 Gee V. Spencer, 12. 
 Geer, Cornforth v. 7. 
 Gerard, Tresham v. 164. 
 Gerosh, White v. 275. 
 Gibbs V. Cole, 327. 
 Gibson, Cole v. 18. 
 
 , Fuller V. 339. 
 
 V. Seyes, 13. 
 
 V. Smith, 324. 
 
 V. Wells, 159. 
 
 Giffbrd, Ex parte, 40, 41. 
 Gildenichi v. Charnock, 53. 
 Gilhani, Jones v. 346. 
 
 , Paris V. 337. 
 
 Gill, Dalton v. 160. 
 Gillespie, Maestaer v. 11. 
 Gilllat V. Wright, 54. 
 Gilliver v. Snaggs, 288. 
 Girdler, Duke of Dorset v. 361. 
 Girdlers' Company v. Miller, 42. 
 Gladdon v. Stoneman, 300. 
 Glass, Saunderson v. 14. 
 Glover, Barton v. 22. 
 
 , Harding v. 306. 
 
 Glyn V. Bank of England, 5. 
 
 , Wallis V. 66. 
 
 Goate V. Fryer, 32, 33. 
 Goble, Martin v. 233. 
 Godfrey v. Turner, 5. 
 Golding, Milner v. 96. 
 Goldsmidt v. IMarryatt, 136. 
 Goldswaine, Jolinson v. 198. 
 Gold win, Chambcrb c. 7. 
 
 Gomery v. Bond, 12. 
 Goodair, Barker ti. 141. 
 , Young V. 30. 
 
 Goodall, Thorpe v. 357. 
 Goode, Morgan v. 109. 
 Goodeson v. Gallatin, 334. 
 Gooding, Richardson v. 30. 
 Goodinge v. Woodham, 96, 97. 
 
 100. 
 Goodson, Haly v. 298. 
 Goodwyn v. Spray, 172. 
 
 V. Vivian, 146. 
 
 Goold V. Currie, 10. 
 Gould V. Robson, 41. 
 Goulding, Clementi v. 274. 
 Gourlay v. Duke of Somerset, 28. 
 Gower v. Eyre, 147. 
 GoAvland v. De Faria, 14. 
 Grafton, Duke of, v. Ililliard, 226. 
 Granard, Earl of, v. Dunkin, 279. 
 Grantham, Holgate v. 66. 
 Graves, Bates v. 354. 
 
 , Eaton V. 14. 
 
 , James v. 13. 
 
 , Ne\vnham v. 11. 
 
 Gray and Grey, Buller v. 103. 
 
 -, Chiswell V. 6. 
 
 ; Dore V. 229. 
 
 v. Heskcth, 17- 
 
 V. INlinnithorpe, 7. 
 
 V. Hamilton, 142. 
 
 i\ Duke of Northumberland, 
 
 156. 195. ; 
 
 Grazebrook, Downes v. 13. 
 Grey de Wilton, Lord, Clayton v. 
 
 17. 
 Grey de Wilton r. Saxon, 149. 
 
 198.325.
 
 XXVI 
 
 INDEX OF CASES. 
 
 Green, Bridgman v. Jo. 
 
 V. Cole, 149. 
 
 V. Lewis, 293. 
 
 V. Robinson, 359. 
 
 Green wollers, Kennett v. 14. 
 Gregory, Alden v. 12. 
 Grierson v. Jackson, 270. 285. 
 Griffin v. Archer, 93. 
 
 V. Deveuille, 13. 
 
 Howes V. 78. 
 
 Griffith, Gardiner v. 299. 
 
 ■ , Twistleton v. 14. 
 
 Grimshaw, Huddart v. 248. 
 Grimstone, Ex parte, 219. 
 Gross V. Chilton, 166. 
 Grosvenor, Earl, Rex z\ 223. 
 Groves, Hare v. 5. 
 Gubbins v. Creed, 299. 
 Guibon, Tress well v. 139. 
 Gunning t: Gunning, 149. 
 Gurney, Coles v. 12. 
 
 V. Longman, 271. 
 
 Guy's Hospital, Baynham v. 23. 
 
 175. 
 Gwinnett v. Bannister, 43. 
 Gwyn V. Lethbridge, 319. 
 Gyles V. Wilcox, 280, 281. 
 , Woodward v. 198. 
 
 Habergham, Stansfield v. 168. 170. 
 
 V. Vincent, 169. 
 
 Hack V. Leonard, 26. 
 Hackett r. Webb, 348. 
 Hadden, Angel v. 338. 
 Haigh, Collott v. 41. 
 Hale V. Lamb, 17. 
 
 V. Webb, 6. 
 
 Hales V. Sutton,' 53. 
 
 Hales, Whitfield v. 297. 
 Halket, E.v parte, 8. 
 Hall, Buckland v. 28. 
 
 V. Chapman, 131. 
 
 V. Mason, 229. 
 
 , Paine v. 16. 
 
 , White V. 142. 
 
 Halse V. Brown, 43. 
 Haly V. Goodson, 298. 
 Hambly v. Trott, 212. 
 Hamilton, Kane v. 23. 
 
 . V. Worsefold, 193. 
 
 , Duke of. Grey v. 142. 
 
 V. Earl of Macclesfield, 
 
 45. 
 
 • t; . Lord Mohun, 1 3, 1 4. 1 8. 
 
 Hammond v. Maundrell, 295. 
 
 Hammett, Manley v. 231. 
 
 Hampton v. Hodges, 167. ' 
 
 Hanbury, Fox v. 30. 
 
 Hand, Oldham v. 14. 
 
 Hankey v. Garratt, 30. 
 
 V. Mayler, 105. 
 
 , Morris v. 70, 71. 
 
 V. Vernon, 1 1 . 
 
 Hannington v. Duchatel, 18. 
 
 Hannam, Lamlee v. 14. 
 
 V. South London Water- 
 works, 26. 134. 
 
 Hannan, Welsh t). 128. 
 
 Hanning v. Ferrers, 11. 
 
 Hanson v. Gardiner, 108. 196. 324. 
 360. 
 
 Han way, Clarkson v. 13. 
 
 Hardcastle v. Chettle, 32, 33. 
 
 , Dowson V. 348. 
 
 Harding v. Ainge, 359. 
 
 , Allen V. 27.
 
 INDEX OF CASES. 
 
 XXVll 
 
 Harding, E.v parte, 292. 
 
 V. Glover, 306. 
 
 Hardy v. IMartin, 22. 
 Hare v. Groves, 5. 
 
 , Rodney v. 6. 
 
 Harford v. Furrier, 6. 
 Harman v. Camm, 10. 
 Harmer v. Plane, 254. 
 Harper, Blackwell v. 267. 
 Harris, Marchioness of Annandale 
 V. 18. 
 
 , Ex parte, 16. 
 
 , Howard v. 14. 
 
 , Iveson V. 75. 
 
 , Keene v. 314. 
 
 ■ V. Montgomery, 61. 
 
 , Morgan v.Sdl, 
 
 , Morris v. 273. 
 
 , Rolfe V. 26. 
 
 Harrison v. Buckle, 138. 
 
 V. Cockerell, 300. 
 
 V. Hogg, 267. 
 
 , Kidnere v. 35. 
 
 , King V. 59. 
 
 , Patrick x^. 293. 323. 
 
 , Terry v. 293. 
 
 , Thompson v. \5. 
 
 V. Wright, 22. 
 
 Harrow School, Keepers of, v. 
 
 Anderton, 159. 
 Hart, Skapholme v. 18. 
 Hartley v. Hobson, 81. 
 
 , Tookc V. 37. 
 
 Hartwcll V. Hartwell, 18. 
 Hartz V. Shrader, 306. 
 Harvey, Metcalf v. 343. 
 
 , Vcndall v. 140. 
 
 Ilarwood, Skip v. ^ii. 
 
 Hastings v. Cowper, 149. 
 
 Hatch V. Hatch, 13. 
 
 Hatherley, Doe v. 356. 
 
 Hathornthwaite v. Russell, 300. 
 
 Hatton, Atkins v. 362. 
 
 Hatty, Wynn v.m\. 
 
 Haughton v. Knowles, 18. 
 
 Hawkes v. Champion, 333. 
 
 V. Wyatt, 12. 
 
 Hawkie, Stribley v. SQ5» 
 
 Hawkins r. Turner, 17. 
 
 Hay craft, Partridge v. 106. 
 
 Hayhn, Taylor v. 7. 
 
 Haywood, Spicer v. 18. 
 
 Head v. Egerton, 12. 
 
 Hearne v. Tenant, 67. 
 
 Hedger, Mayor of London r. 200. 
 
 Heinzelman, Boyd v. 38. 
 
 Hellier v. Twiford, 155. 
 
 Helmuth, Martinius r. 337. 
 
 Henchman, East India Company 
 V. 62. 
 
 Henkle v. Royal Exchange Com- 
 pany, 6. 
 
 Henley v. Brooke, 68. 
 
 Henry v. , 96. 
 
 Henshaw, Atkinson v. 302. 
 
 Herbert v. Champion, 10. 
 
 V. Lowns, 15. 
 
 Heriot, Carpenter v. 12. 
 
 Herlakenden's case, 175. 183. 
 
 Heme v. Benbow, 159. 
 
 Heron?;. Heron, 12. 16. 
 
 Herring v. Dean of St. Paufs, 
 148. 203. 
 
 Hesketh, Attorney General r. 299. 
 
 , Grey r. 17. 
 
 Helherington, Sidni>y v. 69, 70.
 
 1 
 
 XXVlll 
 
 Hewitt, Leigh v. 199. 
 Hewlett, Taggart v. 109. 
 Hibbert, Garvey v. 7. 
 
 V. llollcston, 1 1 . 
 
 Hibernian Mine Company, Smith 
 
 Hicks V. Ilaincock, 262. 
 
 Hickling, Culley v. 117. 
 
 Hide, Whitchurch v. 361. 
 
 V. Foster, 53. 
 
 Higginbotham v. Holme, 16, 
 
 Higgs V. Rush, 53. 
 
 Hill, Aylet v. 37. 
 
 V. Barclay, 26. 
 
 , Blanchard v. 315. 
 
 — '■ — jEjt parte , 16. 
 
 V. Portman, 333. 
 
 V. Spencer, 18. 
 
 V. Thompson, 249. 260. 
 
 V. Turner, 138. 
 
 V. University of Oxford, 270. 
 
 284. 
 
 Hilliard, Duke of Grafton v. ^26. 
 
 , Stapleton v. 17. 
 
 Hilton V. Allen, 23. 
 
 Hime v. Dale, 274. 
 
 Hinchinbrooke, Lord, v. Seymour, 
 17. 
 
 , Lord Ship- 
 brook V. 297. 
 
 Hines, Proof ?;. 14. 
 
 Hoare, Claridge v. 18. 
 
 , Collard v. 130. 
 
 V. Cotencin, 6. 
 
 Hoare, Hill v. 130. 
 
 Hobbs V. Norton, 11. 
 
 Hobson, Hartley v. 81. 
 
 , Partington r. 81, 82. 
 
 INDi;X OF CASES. 
 
 Hochin, Mayne v. 105. 
 Hockley v. Lukin, 52. 
 Llodges V. Hampton, 167. 
 
 , Pitman v. 166. 
 
 , Smith V. 347, 348. 
 
 Hodgson V. Watson, 297. 
 
 V. Earl of Warrington, 
 
 136. 141. 
 Hogarth, Edwards v. 104. 
 Hogg, Harrison v. 267. 
 
 V. Kirby, 313. 
 
 Holder v. Chambury, 362. 
 Holderstaffe v. Sanders, 42. 
 Holdfast, Doe x^. 356- 
 Hole V. Thomas, 73. 
 Holgate V. Grantham, 66. 
 Holland v. Yeaw, 229. 
 Hollar d V. Battel, 356. 
 Holme, Higginbotham r. 16. 
 Holmes, Baker v. 52. 
 
 , Custance v. 7. 
 
 Holt, Birch V. 237. 
 Holtzappfell v. Baker, 5. 
 Hoi worthy v. Mortlock, 11. 
 
 , Whitchurch v. 195. 
 
 Homfray, Forman v. 307. 
 Hood, Beckford v. 273. 
 Hook, May v. 34. 
 
 , Drury v. 14. 18. 
 
 Hooker v. Howard, 14, 15. 
 Hooper, Lawley v. 16. 
 
 , Mordaunt v. 304. 
 
 Hopkins, Bond v. 349. 
 
 , Dare v. 218. 
 
 -, Howard i?. 11. 
 
 -, Kendrick v. 358. 
 
 V. Monk, 166. 
 
 , Radge i-. 359.
 
 INDEX OF CASES. 
 
 XXIX 
 
 Hopton, Pilsworth v. 196. 
 Hornblowcr v. Bolton, 244. 
 Hornby, Lacy v. 95. 97. 
 
 , Wild V. 227. 
 
 Horseman, Newland v. 354. 
 Horvvood, Underwood v. 8. 
 
 , Ware v. 11. 
 
 Hoskins v. Featherstone, 205. 
 Hough, Scott V. 51. 
 Houghton, Ea: parte, 1 1 . 
 Houlditch, Graves v. 17. 
 
 , Tulk r. 301. 
 
 How V. Tenants of Bromsgrove, 
 
 359. 
 Howard v. Harris, 14. 
 
 V. Hooker, 14, 15. 
 
 V. Hopkins, 11. 
 
 V. Papcra, 300. 
 
 V. Wcldon, 14. 
 
 Lord, Lane r. 364. 
 
 , Lord, V. Ridley, 149. 
 
 IJowells, Wathcrell v. 148. 
 Howes V. Griffin, 78. 
 Howorth, Samuel v. 40. 
 Huddart v. Grimshaw, 248. 
 Hudson, Peyto r. 101. 
 Huey, Skip v. 5. 
 Hughes, Ex parte, 13. 
 
 , Bowser t\ 301. 
 
 V. Morden College, 334. 
 
 Hugonin v. Bazeley, 13.304.319. 
 
 365. 
 Humpage, Isaacs v. 108. 
 Humphreys v. Humphreys, 7, 61. 
 
 r. Rigby, 17. 
 
 H unburn v. Curtis, 7. 
 llundsden v. Cheney, 11, 
 Hungcrford, Mildmay r. 10. 169. 
 
 Hunt V. Angerstein v. 148. 
 
 V. Lever, 51. 
 
 V. Matthews, 15. 
 
 Hunter, Barber v. 350. 
 
 , Creuze v. 297. 
 
 Hurst V. Thomas, 96. 
 Husscy V. Berkley, 7. 
 
 , Revell V. 6. 
 
 Hutchinson v. Markham, 101. 
 Hyde v. Skinner, 175. 
 Hylton V. Hylton, 13. 
 
 V. Morgan, 352. 
 
 , Ramsden v. 12. 
 
 Ibbotson V. Rhodes, 1 1 . 
 
 Iggulden X'. May, 175. 
 
 lUis V. Morris, 333. 
 
 Imgrey, Pawlet v. 359. 
 
 Ince, Day v. 134. 
 
 Innis, Lord Falmouth v. 332. 
 
 Inwood V. Twyne, 219- 
 
 Ireland, Bank of, v. Berrisford, 40. 
 
 , Primate of, v. West, 7. 
 
 Irnham, Lord, v. Child, 10. 
 Irvin, Molloy v. 16. 
 Isaacs V. Humpage, 108. 
 Ives, Metcalf f. 7. 
 Iveson V. Harris, 75. 
 
 Jackson v. Cator, 324. • 
 
 , Grierson v. 270. 285. 
 
 , Field V. 323. 
 
 , Mayor of Boston v. 359. 
 
 , Middleton v. 360. 
 
 f. Purnell, 134. 
 
 V. Saunders, 23. 
 
 Jacob HalPs case, 224. 
 JafTray, Nuncs v, 55, 56.
 
 1 
 
 XXX 
 
 INDEX OF CASES. 
 
 Jalabcrt v. Duke of Chandos, 6. 
 James, Ex parte, V6. 
 
 V. Downcs, G7. 12G, 127. 
 
 ■ V. Greaves, 13. 
 
 , Newberry v. 312. 
 
 Jane, Paradine v. 151. 
 
 Jason V. Eyres, 14. 
 
 Jaques, Collot v. 5. 
 
 Jebb V. Jebb, 182. 
 
 Jefferson v. Bishop of Durham, 
 
 201, 202. 
 Jeffery v. Bowles, 289. 
 Jefferys v. Baldwin, 267- 
 Jemineau, Burrows v. 354. 
 Jenkins, Edwards v. 126. 
 Jennings, Abthorp v. 137. 
 
 V. Ward, 14. 
 
 Jervis x^^. Duke, 11, 12. 
 Jessop's case, 249. 
 Jessop, Bishop v. 67. 
 
 V. King, 23. 
 
 Jesus College v. Bloom, 207. 209, 
 
 210,211. 
 Jewson V. Moulson, 139. 
 Jeyes, Gibson v. IS. 
 Johnes v. Johnes, 182. 
 Johnson, Akhurst v. 6. 
 
 V. Atkinson, 341. 
 
 , Attorney General v. 224. 
 
 231. 237. 
 
 , Bateman v. 231. 236. 
 
 , City of Bristol v. 223. 
 
 , Lord Cranstown v. 142. 
 
 V. Curtis, 7. 
 
 , Duhvich College v. 301. 
 
 , Edwards v. 106. 
 
 V. Goldswaine, 198. 
 
 , Lcgard v. 17. 
 
 Johnson, Liardet ?;. 251. 
 
 ■ '0. Ogilbie, 18. 
 
 V. Medlicott, 13. 
 
 Johnston, Lord Byron z;. 289.314. 
 JoUiffe, Lowe v. 355. 
 Jonas, Pengree, v. 67. 
 Jones, Allen v. 322. 
 
 V. , 81. 84. 
 
 , Canham v. 314. 
 
 , Coysgarne v. 140. 
 
 , Davis V. 154. 
 
 , Fores v. 283. 
 
 , Gilliam v. 346. 
 
 V. Jones, 350. 
 
 , Kinder v. 195. 
 
 , Matthews u 292. 
 
 , Morphett v. 327. 
 
 , Oniel V. 23. 
 
 f. Pugh, 304. 
 
 , Purefoy v. 333. 
 
 , Rex V. 228. 
 
 V. Lord Strafford, 35. 
 
 , Thompson v. 52. 
 
 Jory r. Cox, 45. 299. 
 Joseph V. Doubleday, 90. 
 
 Kane v. Hamilton, 23. 
 Kearsley, Bathurst v. 271. 
 
 , Cary v. 28. 
 
 , Dyer v. 33. 
 
 , Nichol V. 320. 
 
 Keate v. Allen, 14. 
 Keating v. Sparrow, 23. 
 Keene, Angel r. 356. 
 
 : . Harris, 314. 
 
 Keighly, Young v. 30. 
 Kelly, Morris r. 273. 288. 
 Kempc r. Aulill, 38.
 
 INDEX OF CASES. 
 
 XXXI 
 
 Kerapson, Smith r. 138. 
 Kenda], Ex parte, 6. 
 Kendrick v. Hopkins, 358. 
 Kennedy v. Earl of Cassilis, 143. 
 
 , Norris v. 126. 
 
 Kennett v. Abbott, 7. 
 
 V. Dalton, 73. 
 
 — V. Greenwoollers, 14. 
 
 Kenny r. Barnwell, 96. 99- 
 
 V. Bro\vne, 14. 
 
 Kensington v. White, 87. 116. 
 Kenworthy v. Accunor, 54. 
 Kenyon v. Worthington, 32. 
 Kerrison r. Sparrow, 230. 
 Key r. Bradshaw, 14. 18. 
 Kidder, Ryder r. 68. 
 Kidnere v. Harrison, 35. 
 Kidney r. Coussmaker, 9- 
 Kilburn,' Bridges v. 149. 
 Kildare, Lord, v. Eustace, 142. 
 Killing V. Killing, 84. 
 Kilmorey, Lord, v. Thackeray, 198. 
 Kilvington v. Gardner, 14. 
 
 , Ycomans, v. 352. 
 
 Kimpton f. Eve, 67. 200. 
 Kinchant v. Kinchant, 12. 
 Kinder v. Jones, 195. 
 Kinderley, Macnamara t;. 61. 
 King V. Allen, 87. 
 
 , Cotton V. 15. 
 
 V. Harrison, 59- 
 
 V. Jessop, 23. 
 
 V. King, 302. 
 
 V. Bead, 282. 
 
 , Woodward v. QQ. 
 
 King, Lord, v. Bishop of Ely, 231. 
 King's Lynn, IVLayor of, f. Pcm- 
 bcrton, 315. 
 
 Kinnersley, Dodsley v. 281. 
 
 Kinsman v. Barker, 7. 
 
 Kirby, Hogg v. 313. 
 
 Kircudbright, Lord, v. Lady Kir- 
 cudbright, 18. 
 
 Klevers, White r. 54. 
 
 Knaplock v. Curl, 276. 
 
 Knight V. Adamson, 352. 
 
 V. Duplcssis, 302. 
 
 r. Moseley, 148. 203. 
 
 , Bishop of Winchester t\ 
 
 207. 212. 
 
 Knowler, Powell v. 18. 
 
 Knowles r. Haughton, 18. 21. 
 
 Knox V. Simmons, 7. 
 
 , Smith r. 41. 
 
 , Symmonds v. 106. 
 
 Koops, Ex J) arte, 242. 
 
 Kuffin, Roberts v. 6. 9. 
 
 Lacey, Ex parte, 13. 
 
 V. Hornby, 95. 97. 
 
 Lamb v. Bowes, 62. 
 
 5 Burges r. 189. 
 
 , Hale V. 17. 
 
 Laming, Doe v. 151. 
 Lamprey, Atwood v. 10. 
 Lancaster, Popham v. 360. 
 Lance, Etches v. 324. 
 Lane, Desgravesf. 134. 
 
 V. Lord Howard, 364. 
 
 V. Newdigate, 232. 325. 
 
 331. 
 
 V. Page, 17. 
 
 V. Pannell, 169. 
 
 r. Williams, 108. 
 
 Langhani, Phillips v. 96.
 
 xxxu 
 
 INDEX OF CASES. 
 
 I.angstafFc v. Fcnwick, 10. 
 
 Langston, Bignal v. !295. 
 
 . , Bovlston V. 338, 339. 
 
 345. 
 
 Lanoy v. Duke of Atliol, 38. 
 
 Lansdown v. Lansdown, 9. 
 
 Lansdowne, Marquis of, v. Mar- 
 chioness of Lansdowne, 213. 
 
 . , Wilmot 
 
 V. 168. 
 
 Largan, Bowen v. 303. 
 
 Larkens, Baillie v. 54. 
 
 Lathropp v. Marsh, 198. 
 
 Latour, Bland v. 274. 
 
 Law V. East India Company, 40. 
 
 — — V. Law, 18. 
 
 , Nelthorpe v. 82. 129. 
 
 Lawes, Turner ?;. 52, 
 
 Lawley v. Hooper, 16. 
 
 Lawrence v. Obee, 233. 
 
 V. Partington, 105. 
 
 , Tregonwell v. 149. 
 
 , Whichcote v. 13. 
 
 Lawson v. Morgan, 327. 
 
 Lawton v. Lawton, 152. 154. 
 
 Lax ton v. Peat, 41. 
 
 Leadbetter, v. 289. 
 
 Leake, 1 hompson v. VS. 
 
 Lechmere, Speldt ?;. 1 1 . 
 
 Lee V. Alston, 148. 210. 
 
 V. Lee, 196. 
 
 , Stationers' Company v. 270. 
 
 V. Risdon, 152. 
 
 V. Lord Vernon, 175. 
 
 Leech, Rex v. 228. 
 
 Leeds, Duke of, v. New Radnor. 
 362. 
 
 liceds, Duke of, v. Eai-1 of Straf- 
 ford, 362. 
 
 Lcgard, Johnson v. 17. 
 
 Legeyt, Church v. 119- 
 
 Leigh V. Hewitt, 199. 
 
 V. Williams, 14. 
 
 Leigh ton v. Leighton, 181. 354. 
 
 Leisure, Freeborn v. 143. 
 
 Lennon v. Napper, 23. 
 
 Leo, Davies v. 163. 
 
 Leominster, Corporation of, Bay- 
 ley, V. 23. 
 
 Leonard v. Attwell, 73. 
 
 V. Leonard, 13. 
 
 Leslie v. , 33. 
 
 Lewis, Anderson v. 53. 
 
 V. Cray, 219. 
 
 , Farrer i). 81. 
 
 V. Morgan, 7. 
 
 V. Price, 232. 
 
 Lewis Bovvles's case, 175, 176. 183. 
 
 Leycester, Lord, Curling v. 303. 
 
 Lever, Hunt v. 51. 
 
 V. Woton, 141. 
 
 Liardet v. Johnson, 251. 
 
 Liddell v. Liddell, 302. 
 
 Liford's case, 161. 
 
 Lightbone v. Warden, 5. 
 
 Lightbound, Winter v. 136. 
 
 Lilley, Withall v. 44. 
 
 Lindo, Gale v. 14. 
 
 Lingard v. Webb, 131. 
 
 Lister, Buxton r. 11. 
 
 Litchfield, Ulrich v. 7. 
 
 Litton, Robinson v. 162. 166. 170, 
 171. 
 
 Llewellvn, Evans v. 9. 12.
 
 INDEX OF CASES. 
 
 XXXIU 
 
 Lloyd, Birmingham Canal Com- 
 pany V. 15G. 
 
 V. Passinghara, 304. 
 
 Lock, Burrows t. 11. 
 
 Loker v. Rolle, 362. 
 
 London, Bishop of, v. Webb, 205. 
 
 London, City of, r. Ainslcy, 361. 
 
 ,'y. Bolt, 226. 320. 
 
 , V. Hedger, 200. 
 
 , V. Mitibrd, 23. 
 
 175. 
 
 -, V. Nash, 27. 
 -, V. Pallister, 359. 
 -, V. Perkins, 359. 
 -, V. Pugh, 199. 
 
 Longman, Bach v. 274. 
 
 V, Calliford, 309. 
 
 , Cary v. 280. 
 
 , Gurney v. 271. 
 
 V. Oxberry, 288. 
 
 V. Winchester, 282. 
 
 Loring, Ward v. 130. 
 Loughnan, Teasdale v. 
 Lovat V. Lord Ranelagli, 25. 
 Love V. Baker, 141. 
 Loveday, Pigeon v. 352. 
 Lovell, Farrant v. 162. 165, 166. 
 
 V. Lovell, 169. 
 
 Lowe V. , 340. 
 
 V. Jolliffe, 355. 
 
 V. Peers, 22. 
 
 Lowes, Green v. 293. 
 Lowns, Herbert v. 13. 
 Lowrie v. Bourdieu, 10. 
 Lowther v. Lowtlier, 13. 
 
 , Whorewood v. 86. 
 
 Lucas r. Comerford, 27. 
 
 Lukin, Holmes v. 52. 
 Lumlcy, Bilbie v. 10. 
 Lutterell's case, 171. 
 Lyddall v. Weston, 155. 
 Lye, Crutwellc.311.314. 
 Lynch, Stevens r. 10. 
 Lyndsay, Croft v. 5. 
 Lyon, Eaton v. 23. 175. 
 Lysaght, Boyle r. 23. 
 
 Macaulay, Elmslie v. 301. 
 
 Macclesfield, Earl of, Fitton v. 355. 
 
 , Duke of Ha- 
 milton V. 45. 
 
 MaccuUock, Morris v. 18, 19. 
 
 Macdonald, Lord Bourke v. 51. 
 
 Macentire, Hanway v. 324. 
 
 Macguire v. Allen, 304. 
 
 , Macnamara r. 143. 
 
 Macher v. Foundling Hospital, 
 201. 
 
 Mackenzie v. Robinson, 299. 
 
 V. York Buildings Com- 
 pany, 13, 
 
 Mackintosh, Scott v. 120, 121. 
 
 MackUn v. Richardson, 276. 
 
 Mackmurdo v. Smith, 269. 
 
 Mackreth, Fox v. 13. 
 
 V. Nicholson, 50. 
 
 Macnaghtcn v. Boehm, 319. 
 
 Macnamara v. Arthur, 48. 
 
 V. Kindcrley, 61. 
 
 r. Macguire, 143. 
 
 , Williams r. 182. 
 
 Maestear v. Gillespie, II. 
 
 Magrane v. Archbold, 23. 
 
 Magrath r. Lord Muskerry, 23.
 
 XXXIV 
 
 INDEX or CASES. 
 
 Mahon, Lord Blancy v. IGC. 
 , Lord, V. Lord Stanlio[)e, 
 
 18L 183. 
 Mair V. Thelusson, 121, 122, 123. 
 
 , Uttcrson v. oOl. 
 
 Maltby, Anderson v. 16. 
 Manby v. Owen, 272. 289. 
 Manlove v. Ball, 14. 
 Manly v. Hanimet, 231. 
 Manning, Danvers v. 7. 
 Mansel, Brig^toke v. 305. 
 Mansfield t\ Cook, 63. 
 
 V. Shaw, 300. 
 
 Mapplesden, Courthorpe v. 194. 
 Marasco v. Boiton, 298. 322. 
 Market, Acton v. 117. 
 Markham v. Dickenson, 126. 
 
 , Hutchinson v. 101. 
 
 Marlborough, Duke of, Attorney 
 
 General v. 186. 
 , Davis V. 
 
 303. 
 Marriatt, Goldsmidt v. 136. 
 Marsack, Morgan v. 340. 
 Marsh, Lathropp v. 198. 
 Marshall, Garnum v. 52. 
 
 V. Walmesley, 359- 
 
 Martin, Doe v. 169. 
 
 ■ V. Goble, 233. 
 
 ■ , Hardy v. 22. 
 
 V. Martin, 32. 
 
 V. Nutkin, 309. 
 
 V. Stiles, 232. 
 
 Martinius v. Helmuth, 337. 
 Mason, Gardner z\ 53. 
 
 , Hall V. 229. 
 
 V, Murray, 120. 125. 280. 
 
 Massic, Abbott v. 7. 
 
 , Dawson v. 13. 
 
 Masterman, Withall v. 149- 
 Masters v. Scroggs, 229. 
 Mather, Ex parte, 18. 
 
 , Morgan v. 7. 
 
 Matthias, Gray v. 18. 
 Matthews, Hunt v. 15. 
 
 V. Jones, 292. 
 
 Matthewson v. Stockdalc, 282. 
 Maule, Crawshay v. 308. 
 Maund, Fermier v. 149. 
 Maundrellj Hammond v. 295. 
 Maw, Elwes v. 152, 153. 
 Mawson v. Stock, 15. 
 May V. Hook, 34. 
 , Iggulden V. 175. 
 
 , Wharton v. 142. 
 
 Mayle, Moyle v. 148. 
 
 Mayler v. Hankey, 105. 
 
 Mayne, Hochin v. 105. 
 
 Meaghan, Ear parte, 16. 
 
 Meade v. Webb, 12. 
 
 Meals V. Meals, 139. 
 
 Mcdlicot, Johnson v. 13. 
 
 Mellish, Baker v. 350. 
 
 Mellor, Paine v. 6. 
 
 Menzies v. Rodrigues, 49. 51. 57. 
 
 Mertins, Crew t\ 55. 
 
 Merry, Day v. 182. 
 
 Mesner, Aldridge v. 337. 348. 
 
 Metcalfe. Harvey, 343. 
 
 V Ives, 7. 
 
 V. Pulvertoft, 17. 305. 
 
 , Rex V. 250. " 
 
 Middleton, Crosby v. 6. 
 r. DodswelU 300.
 
 INDEX OF CASES. 
 
 XXXV 
 
 Middleton v. Jackson, 360, 
 
 •, Welles V. 14. 
 
 Milbank v. Revett, 305. 
 
 Mildmay's case, 174. 
 
 ■ r. Hungerford, 10. 169. 
 
 r. Wildmay, 218. 
 
 Mildred r. Neate, 141. 
 
 Millar V. Donaldson, 285. 
 
 r. Taylor, 286. 
 
 Miller v. Girdlers Company, 42. 
 
 Rolls V. 330. 
 
 , Rutherford r. 130. 
 
 Milligan, Dick v. 7. 
 
 Mills V. Cobby, 69. 
 
 V. Fry, 35. 
 
 , Svvayne v. 96. 
 
 Milner v. Golding, 96. 
 
 V. Milner, 7. 
 
 Milsington, Lord, v. Lord Port- 
 more, 19- 
 
 Milward, Berrisford v. 12. 
 
 Mince v. Peters, 20. 
 
 Minnithorp, Grey v. 7. 
 
 Minor, Ex paiie^ 6. 
 
 Minshul V. Minshul, 176. 
 
 Mitchell, Burke v. 17. 
 
 V. Cue, 136. 
 
 r. Davis, 117. 
 
 V. Dors, 194. 
 
 V. Reynolds, 311. 
 
 Mitford, City of London r. 23. 
 175. 
 
 Mocatta v. Murgatroyd, 12. 
 
 Mocatto, Wafer o. 26. 
 
 Mocher v. Reed, 36. 
 
 Moggv. Mogg, 192. 194. 
 Mohun, Lord, v. Duke of Hamil- 
 ton, 13, 14. 18. 
 
 Mole, SUlu. 148. 
 Mohns, Drury v. 200. 
 Mollineux r. Bird, 301. 
 
 V. Powell, 163. 
 
 Molloy V. Irvin, 16. 
 Monk, Hopkins v. 166. 
 Monkhouse v. Bedford Corpora- 
 tion, 3.19. 
 INIontague, Lord, v. Dudman, 42 
 Montesquieu v. Sandys, l4. 
 Montgomery, Ball v. 15. 
 
 , Harris t. 61. 
 
 Monteith v. Taylor, 130. 
 Moore, BoviU v. 252, 253. 
 
 , Bowmaker v. 40. 
 
 V. Foley, 175. 
 
 , Sayer v. 282. 
 
 V. Walker, 274. 
 
 Mordaunt v. Hooper, 304. 
 Morden College, Hughes v. 334. 
 Morgan, Bristol City v. 223. 
 V. Goode, 109. 
 
 V. Harris, 301. 
 
 , Hylton V. 352. 
 
 . , Lawson v. 327. 
 
 , Lewes r, 7. 
 
 V. Marsack, 340. 
 
 , Pearson v. \\. 
 
 V. Scudamore, 352. 
 
 Morley v. Thompson, 340. 
 Morphett v. Jones, 327. 
 Morrice v. Bank of England, 
 
 31. 
 Morris v. Lord Berkley's Lessees, 
 
 231. 
 
 V. Burrougli, 12. 
 
 f. Colman, 309, 310. 
 
 V. Hankey, 70,71.
 
 XXXVl 
 
 INDEX OF CASES. 
 
 Morris v. Harris, 273. 
 
 , 111 is V. 333. 
 
 V. Kelly, 273. 
 
 V. MacuUock, 18, 19. 
 
 V. Owen, 134. 
 
 Morrison, Button x\ 80. 
 Mortimer v. Cottrell, 193, 194. 
 Mortlock, Hoi worthy v. 11. 
 
 . , Vipan V. 126, 127. 
 
 Morton, Camden v. 5. 
 Morse V. Royal; 13. 
 Mosely, Knight v. 148. 203. 
 
 V. Virgin, 27. 
 
 , Earl of Warrington v.35d. 
 
 Moss V. Charnock, 1 1. 
 Mostyn, Boardman v- 28. 
 Moulson, Jewson v. 139. 
 Mound i\ Culme, 43. 
 Mount V. Fenner, 327. 
 Mountnorris, Earl of, v. White, 
 
 23. 
 Mousely V. Bassett, 35. 
 Moyle V. Mayle, 148. 
 Muckleston v. Brown, 16. 
 Mulgrave, Lord, Phipps i\ 7. 
 Mullett, Robinson v. 313. 
 Mullins, Simmons v. 78, 
 Mumford, Randall v. 131, 132. 
 Mui-gatroyd, Mocatta v. 12. 
 Murphy, Ej: parte, 16. 
 Murray, Bateman r. 23. 
 , I^lason t. 120. 125. 
 
 280. 
 
 f. Palmer, 13. 
 
 , Trusler r. 282. 
 
 Muschamp, Earl of Arglasse v. 
 
 142. 
 Muskerry, Lord, Magrath v. 23. 
 
 Mutters v. Chauvel, 299- 
 Myers, Duke of Norfolk v. 359. 
 
 Nainby, Chesman v. 311. 
 Naper, Lennox v. 23. 
 
 , Lord Sherborne v. 354. 
 
 Nash V. Ash, 21. 
 
 , City of London v. 27. 
 
 , Shelly r. 14. 
 
 Nay lor v. Taylor, 134. 
 Neale, Wadeson v. 61. 
 Neate, Mildred r. 141. 
 Neave, East India Company v. 6. 
 
 , Palmer x^. 15. 
 
 Nedriff, Rickcord v. 53. 
 Nelthorpe v. Law, 82. 129. 
 Nerot, Fairbrother v. 337. 
 Nesbitt V. Bird, 51. 
 
 , Parnellr. 61. 115. 
 
 Neville v. Wilkinson, 12. 15. 19. 
 
 , Rex V. 227. 
 
 Newberry x'. James, 312. 
 Newburgh, Earl of, v. Wren, 139. 
 Newcastle, Duke of. Bond v. 33. 
 , Town of, V. Johnson, 
 
 232. 
 Newcomb v. Bonham, 14. 
 Newdigate, Lane v. 232. 
 Newell, Parker v. 164. 
 Newland v. Champion, 301. 
 
 z\ Horseman, 354. 
 
 Newman v. Paine, 14. 
 Newnham v. Graves, 11. 
 Newport, Sapcote v. 332. 
 New Radnor, Duke of Leeds v. 
 
 362. 
 Nichol, Attorney General v. 231. 
 
 238. 322.
 
 INDEX OF CASES. 
 
 XXXMl 
 
 Nichol r. Verelst, 79. 
 
 Nicholas I". Nicholas, 139- 
 
 Nichols V. Chalie, T- 
 
 V. Kcarsley, 320. 
 
 Nicholson, Mackreth v. 50. 
 
 t'. Pattison, 5. 
 
 Nightingale, Arkwright v. 251. 
 
 r. Russell, 50. 
 
 Nisbett V. Smith, 40. 
 
 Noble, Devaynes t . 0. 8. 40. 
 
 r. Garland, 86. 
 
 , Richards v. 197. 
 
 Noel, Lord, 57. Somerset, 297. 
 
 Norfolk, Duke of, v. Myers, 359. 
 
 Norris, Daniel v. 232. 
 
 V. Kennedy, 120. 
 
 North cote v. Duke, 25. 
 
 , Scrymsher v. 295. 
 
 Northumberland, Duke of, Grey 
 V. 195, 196. 
 
 Norton, Hobbs v. II. 
 
 V. Relly, 13. 
 
 , Whaley r. 18. 
 
 Norway v. Rowe, 108. 
 
 Norwich, Dean of, Town of Yar- 
 mouth c. 358. 
 
 Nunes r. Jaffray, 55, 56. 
 
 Niitkin, Martin v. 309. 
 
 Nutt, Wright 7'. 38. 
 
 Obee, Lawrence v. 233. 
 O'Brien, Macmahon u. 61. 
 
 — V. O'Brien, 179. 181. 
 
 O'Connor v. Spaight, 29. 
 O'Dea, Browne v. 16. 
 Offlcy, Scrope f. l.'^. 
 Ogbourne, Pitcairne r. 15. 
 
 Ogden, FoUiott v. 38. 
 
 Ogilvie, Johnson v. 18. 
 
 Ohlsen, Drummond v. 86. 
 
 Oldham v. Hand, 14. 
 
 Oliver, Ball r. 302. 
 
 Oniel r. .Jones, 23. 
 
 Onions, Smallman v. 172, 173. 
 
 V. Tyrer, 6. 
 
 Onslow r. , 200. 
 
 Ord, Tempest t'. 297. 
 O'Reilly, Bell v. 36. 
 Osborne r. Cowper, 96. 
 
 V. Donaldson, 285. 
 
 V. Osborne, 218, 219- 
 
 — f. Tenant, 67. 
 
 _ V. Williams, 16. 18, 19. 
 
 — , Lady, Villiers v. 301. 
 
 Osmond r. Fitzroy, 13. 
 Otto Lewis's case, 354. 
 Ovey, Bullen v. 69. 
 Owen, Manby v. 272. 289. 
 
 , Morris t'. 134. 
 
 , Wynne r. 106. 
 
 Ox, Debenham t . 18. 
 Oxberry, Longman i'. 288. 
 Oxendon v. I^ord Com];ton, 219. 
 Oxford and Cambridge Universi- 
 ties V. Richardson, 270. 286. 
 University r. Hill, 270. 
 
 284. 
 
 Packington 
 
 180. 
 Page, Lane v. 17 
 Pain, Ridout r. 7 
 Paine v. Hall', 16, 
 V. Mel lor, 6 
 
 Packinston, 179,
 
 XXX VI H 
 
 INDEX OF CASES. 
 
 raiiic, Newman 7'. 14. 
 
 Pallister, City of London v. 359- 
 
 Talmer, Fllewood v. 3fi2. 
 
 , Murray v. 13. 
 
 t-. Neave, 15. 
 
 r. Wheeler, 17. 
 
 Pannell, Lane v. 1G9. 
 Papera, Howard v. 300. 
 Pappineau, Hex v. 227. 
 Pai'adlnc v. Jane, 151. 
 Paris V. Gilhmn, 337. 340. 
 Parker v. Blackburnc, 52. 
 
 , Codington v. 305. 
 
 x\ Newell, 164. 
 
 Parkinson, Rees f. 34. 
 Parnellt'. Nesbitt, 115. 
 Parre v. Tipelady, 138. 
 Parrot, Priest v. 18. 
 Parry v. Carwarden, 17- 
 Parsons, Baskett v. 270. 
 Partington v. Booth, 71. 75, 76. 
 
 ^,. Hobson, 81, 82. 
 
 , Lawrence r. 105. 
 
 Paririd!.!;e, Hnycraft r. 106. 
 
 , Stationers' Company r. 
 
 270. 
 
 , Sweet r. 303. 
 
 Passingham, Lloyd v. 304. 
 Paterson, Earl of Thanet v. 346. 
 Paterson, Nicholson v. 5. 
 Patrick V. Harrison, 293. 322. 
 Paty V. Simpson, 106. 
 Pawlet V. Ingrey, 359. 
 Paxton, Cox r, 293. 
 
 V. Douglas, 32, 33. 
 
 Peachy, Young v. 12. 16. 
 Peacock, Da vile v. 49. 88, 
 
 Peacock v. F.vans, 14. 
 
 — V. Peacock, 306. 
 
 Peake, ex parte, 16. 
 Pearce v. Penrose, 335. 
 Pears v. Watson, 241 . 
 Pearson, Barrett v. 23. 
 
 , Garlick v. 80. 
 
 V. Morgan, 11. 
 
 Peat, Laxton v. 41. 
 Pechel V. Fowler, 291. 
 Peck, Brown v. 18. 
 
 Peel V. , 12. 
 
 Peele v. Capel, 17. 
 Peers, Lowe v. 22. 
 
 Pellew V. , 97. 
 
 Pemberton, Mayor of King's Lynn 
 
 V. 315. 
 Pembroke's, Earl of, case, 147. 
 Penn v. Lord Baltimore, 142. 
 Penrose, Pearce v. 335. 
 Periam, Clarke v. 18. 
 Percival, Lord, v. Phipps, 278. 
 Perkins, City of London r. 359- 
 Perrot v. Perrot, 163. 
 Perrot, Dowche v. 333. 
 Perry v. Barker, 37. 
 
 , Curtis z'. 11. 16. 
 
 V. Phelps, 33. 
 
 Perwin, Dean of AVindsor v. 16, 
 Peters v. Erving, 38. 
 , Mince v. 20. 
 
 Peterson, Rolfe v. 22. 198. 
 Peyson, Cole r. 149. 160. 
 Peyto \\ Hudson, 101. 
 Peyton r. Bladwell, 14. 
 Phelips, Perry r. 33. 
 Philips r. Atkinson, 306.
 
 INDEX OF CASES. 
 
 xxxix 
 
 Philips, E:t; parte, 220. 
 
 V. Langham, 96. 
 
 Philpot, Attorney General v. 223. 
 Phipps, Lady Arundel v. 313. 
 
 • V. Bishop of Bath and 
 
 Wells, 305. 
 
 V. Lord Mulgrave, 7. 
 
 , Lord Percival t. 9178. 
 
 V. Steward, o02. 
 
 Pierce, Crutchfield v. G6. 297. 
 
 , Lord Fauconberg v. 354. 
 
 , Saycr v. 207. 
 
 , Waring v. 13. 
 
 Pierson, Brackley v. 139. 
 
 Pieters r. Thompson, 142. 
 
 Pigeon V. Loveday, 352. 
 
 Pigotr. Bullock, 164. 
 
 Pike V. Hoare, 16. 
 
 Pilkington, Mayor of York v. 42. 
 
 333. 
 Pilhng V. Armitage, 12. 
 Pillsworth V. Hopton, 196, 
 Pitcairne v. Ogbourne, 15. 
 Pitcher, Wigglewortli v. 30. 56. 
 Pitman v. Hodges, 166. 
 Pitt, Reynolds r. 26. 140. 
 
 V. Smith, 13. 
 
 Plaistow, Cecil v. 15. 
 Plane, Harmer v. 254. 
 Piatt V. Button, 287, 288. 
 Plumb V. Fluitt, 12. 
 Plummer, Atkinson v. 298. 
 
 , Webb:.' 199. 
 
 Plymouth, Lady, r. Lady Archer, 
 
 161. 190. 
 Pocock, Fcntuni v. 41. 
 Poines's, Lady, case, 332. 
 
 Polhill, Ware v. 219. 
 Pomfret, Earl, v. Lord AV indsor, 7. 
 Ponsonby v. Adams, 22, 
 Poole's case, 152. 154. 
 
 V. Edwards, 68. 
 
 Pooley V. Wray, 9. 
 Poore V. Clarke, 359. 
 Pope V. Curl, 276. 
 
 , Sanders v. 26. 
 
 Popham V. Lancaster, 360. 
 Porter, Boheme z^. 89. 
 Portman, Hill v. 333. 
 Portmore, Earl, Lord Milsington 
 
 V. 49. 
 Pottenden, Delahay v. 332. 
 Potter V. Chapman, 112. 298. 
 Potts V. Bristow, 141. 
 
 ?•. Butler, 117. 
 
 Poulson V. Wellington, 15. 
 Poulter, Charlton v. 306. 
 Poulterer's Company, Askew r. 
 
 340. 
 Powell, Barnesley v. 302. 
 
 , Cleaver v. 297. 
 
 , Croft V. 14. 299. 
 
 V. Knowler, 18. 
 
 'v. Molineaux, 163. 
 
 Power, Drew v. 7. 16. 
 
 v. Walker, 274. 
 
 Powis V. Andrews, 301. 
 Powlett V. Duke of Bolton, 216. 
 Powley r. Walker, 199. 
 Poyntz, Brown t'. 35. 
 Praed, Stevens v. 6. 
 
 , Stevenson r. 11. 
 
 Pratt V. Brett, 200. 
 
 , Cocking V. 12. 
 
 c 'J
 
 xl 
 
 JNDEX OF CASES. 
 
 Prnttent, l^'airbrotlicr v. 837. 
 Prentice, Bnuvcrie v. S62. 
 Preston, Archer v. 1 4'3. 
 Price, ]3o\vser v. l.'JC 
 
 , Clarke r. 310. 
 
 , Lewis V. 232. 
 
 , Toulmin v. 5. 
 
 — V. Williams, 7. 304, 305. 
 Priest t. Perrot, 18. 
 Primrose v. IJromley, 8. 
 Pritchard, Brecknock Company v. 
 151. 
 
 V. Fleetwood, ,103. 
 
 Proofs, nines, 14. 
 Prout, Tonnins r. 313. 
 Pugli, Jones V. 304 
 
 , City of London r. 199- 
 
 Pullen V. Ready, 9. 12. 
 Pulteney v. Shelton, 52. 
 
 v. Warren, G. 32. 198. 
 
 Pulvertoft, Mctcalfr. 17.305. 
 
 ■ V. Pulvertoft, 17. 
 
 Pidvertost v. Pulvertost, 332. 
 P.nard, Bailey v. 344. 
 Purcfoy r. Jones, 333. 
 Purnell, Jac-kson v. 134. 
 Pni-rier, Harford v. 6. 
 Pusey V. Desbouvcrie, 9 12. 
 Pyatr. Winfleld, 172. 
 
 Quarrell v. Bcckford, 305, 
 Queen, the, v. Colborne, 362. 
 Queensberry, Duke of, v. Slieb- 
 
 beare, 275. 
 Quilter, Brown r, 5. 
 Quincy, Ex parte, 154. 
 
 Ragueneau, Coglan v. 117. 
 
 llaincock, Hicks v. 262. 
 
 Rake, Salmon v. 137. 
 
 Ram, Bradbury v. 62. 
 
 Ramsay v. Woodcock, 358. 
 
 Ramsden r. Hylton, 12. 
 
 Rand, Tourle r. 12. 
 
 Randall ;•. Duncombe, 358. 
 
 V. Mumford, 131, 132. 
 
 Randolph v. Tombs, 77. 
 
 Ranelagh, Lord, Lovat r. 25. 
 
 Raphael r. Bird wood, 81. 97. 
 
 Rattray, Bishop v. 60. 
 
 Rawdcn v. Shad well, 17. 
 
 Rawstone r. Bentley, 22. 
 
 Raymond's, Lord, case, 297. 
 
 Rayner v. Stone, 27. 
 
 Read v. Bowers, 306. 
 
 , Kingr. 282. 
 
 Ready, Pullen v. 9. 12. 
 
 Rebel lo, Delmare v. 7. 
 
 Rebow, Beck v. 154. 
 
 Redman, Blackwell v. 17. 
 
 V. Redman, 14. 
 
 Redmond, Dix(m r. 124, 
 
 Redshaw v. Bedford Level Com- 
 pany, 175. 
 
 Reed, Gale r. 311. 
 
 , Mocher v. 36. 
 
 Rees V. Parkinson, 34. 
 
 Regent's Canal Company, Agar v. 
 315. 
 
 Reilly, Cecil v. 56. 
 
 Relly V. Norton, 13. 
 
 Resbridge, Finch r. 361. 
 
 Revell V. Hiisscy, 6. 
 
 Revett V. Braham, 82.
 
 INDEX OF CASES. 
 
 xli 
 
 Revett, Milbank v. 305. 
 'Heyncll, Lord Bnltiuiore v. 332. 
 Reynolds i*. Brooks, 32. 
 
 , Ex parte, 13. 
 
 , Mitchell -y. 311. 
 
 V. Pitt, 26. 140. 
 
 Rew V. Dixon, 141 
 Rex V. Arkwright, 251. 
 
 V. Betterton, 224. 
 
 V. Cross, 227, 228. 
 
 V. Dewsnap, 230. 
 
 V. Justices of Dorset, 225. 
 
 — V. Else, 248. 250. 
 
 V. Earl Grosvcnor, 223, 224. 
 
 V. Jones, 228. 
 
 r. Leech, 228. 
 
 V. Metcalf, 250. 
 
 V. Pappineaii, 227. 
 
 V. Russell, 228. 
 
 — — r. Somersetshire 0)nipatiy, 
 
 V. Taylor, 228. 
 
 y. Watts, 228. 
 
 i\ Wheler, 250. 
 
 ■ X. White, 227. 
 
 Rhodes, Ibbotson v. II. 
 Rich y. Sydenham, 13. 
 , Wills V. 301. 
 
 Richards, Attorney General v. 
 224. 
 
 V. Chave, 302. 
 
 , Cock V. 15. 22. 
 
 — V. Noble, 196. 
 
 Richardson r. Gooding, 30. 
 
 , Macklin v. 276. 
 
 , Oxford and Cam- 
 bridge Universities u. 270. 286. 
 
 Rickcord r, Ncdnff, 53. 
 Rider v. Kidder, 18. 
 Ridley, Lord Howard f. 1 19. 
 Ridout v. Pain, 7. 
 Rigby, Humphreys c. 17. 
 Risdon, Lee v. 152. 
 Rix r. Zang, 82. 
 Roach, Garvan r. 297. 
 Robart, Penton o. 153, 154. 
 Roberdeau v. Rous, 142. 
 Roberts v. Cooke, 356. 
 
 , Edensor v. 348. 
 
 — V. Kuffin, 6. 9. 
 
 X, Roberts, 15. 164. 295. 
 
 V. Wilks, 139. 
 
 V. Worsley, ^o. 
 
 Robertson, Disney v. 359. 361. 
 Robinson, Buttervvorth x. 280. 
 
 V. Lord Byron, 232. 325. 
 
 , Green c. 359. 
 
 V. Litton, 162. 166 170. 
 
 171. 
 
 , Mackenzie v. 299. 
 
 V. Mullett, 313. 
 
 r. Lord Rokeby, 49. 
 
 V. Warden, 107. 
 
 X'. Lord Wharton, 45. 
 
 l{obson, Gould v. 41. 
 Rod: ford, Taylour v. 14. • 
 
 , Baldwin v. 14. 
 
 Rodney x. Hare, 6. 
 
 Rodrigues, Men/ies v. 49. 51. 57. 
 
 Roc, Doe c'. 3^Q, 
 
 , French v. 54. 
 
 Rogers, Baker r. 332. 
 
 V. Rogers, 299. 
 
 Rokebv, Lord, Robinson i". 49-
 
 ^lii 
 
 INlJEX {))• CASKS. 
 
 Iloll'e V. Harris, tiG. 
 
 V. Peterson, 22. 198. 
 
 Rolle, Loker v. Sm. 
 Rolleston, liibbert v. II. 
 Rolls V. Miller, 330. 
 Rolt V. Lord Somerville, S214. 
 Rookc, Cray r. 18. 
 Rookes, Anncslcy v. 65. 
 Rose, Vansando v. 325. 
 
 , Webb V. 215. 
 
 Roswell's case, 162. 
 
 Rotheram v. Fanshaw, 137, 138. 
 
 OXO. 
 
 Rous V. Barkci', iiG2. 
 
 ■ , Roberdcau f. 1452. 
 
 Rowcroft V. Donaldson, 80. 89. 
 Rowe, Norway v. 108. 
 Rowlandson, E.r parte. 16. 
 Rowley, Alsager v. 301. 
 Roworth 7;. Wilks, 267. 281, 282. 
 Roy V. Duke of Beaufort, 17. 22. 
 Royal, IVIorse v. 13. 
 Royal Exchange Company v. An- 
 dre, 78. 
 V. Barker, 
 
 94. 
 
 6. 
 
 -,r.Henkle, 
 - V. Ward, 
 
 5Q. 
 
 Rudgc V. Hopkins, 359. 
 
 Ruffin, ex parte, 16. 
 
 Rush V. Higgs, 33. 
 
 Russell, Hathornthwaite v. 300. 
 
 , Nightingale v. 50. 
 
 , Rex V. 228. 
 
 — , Walter J'. 101. 
 
 Rutherford, Miller v. 130. 
 Rutland, Duke of, Welby 7;. 361. 
 Ryder v. Bcntham, 231. 236. 
 
 Sadler, Bannister v. L50. 
 
 ex parte, 15. 
 
 St. Leonard's, St. Luke's v. 362. 
 St. Luke's V. St. Leonard's, 362. 
 St. Paul's. Dean of. Herring v. 
 
 148. 203. 
 St. Quintin, Walwyn v. 41. 
 Salkeld r. Vernon, 9- 12. 
 Sail, Schoole v. 31. 
 Salmon v. Rake, 137. 
 Samuel v. Howorth, 40. 
 Sandys, Durston 7;. 17. 
 — ■ , East India Company v, 
 
 297, 298. 
 
 , Montesquieu 7;. 14. 
 
 , Lady, Marquis of Down- 
 
 shire V. 182. 
 Sapcote V. Newport, 332. 
 Saul, Foster v. 332. 
 Saunders's case, 154. 
 
 V. Pope, 26. 
 
 , Holderstaffe v. 42. 
 
 V. Jackson, 23. 
 
 7'. Glass, 14. 
 
 Savage r. Foster, 12. 
 Saville's case, 174. 
 Savory v. Dyer, 49. 
 
 , Edmonds 7'. 62. 
 
 Sayer v. Dice}', 266. 
 
 7-. Moore, 282. 
 
 ■ t'. Pierce, 207. 
 
 Saxon, Lord Grey de ^^^ilton v. 
 
 149. 198.
 
 INDEX 0]- CASES. 
 
 xliii 
 
 Saxton V. Davis, 301. 
 Scarborough, Earl ot", Sutton r. 
 
 337. 
 Schoole V. Sail, 36. 
 Schrader, Hartz v. 306. 
 Scott V. Becher, 67. 300. 
 
 , Eastabrookc t^. 15. 
 
 V. Fenhoulet, 7. 
 
 V. Hough, 51. 
 
 V. Mackhitosh, 102. 120. 
 
 V. Scott, 15. 
 
 Scribblchill v. Brett, 14. 18. 
 Scroggs, Masters v. 229. 
 Scrope V. Offley, 12. 
 Scrymsher v. Northcote, .295. 
 Scudaniore, Morgan v. 352. 
 Sedon v. Senate, 31 i. 
 Selby V. Selby, 353. 
 Sellas V. Dawson, 131, 132. 
 Senate, Sedon v. 314. 
 Senhouse v. Christian, 157. 
 Senior v. Arinitage, 199. 
 Serres, Field v. 296. 
 Servington v. ^^ ebb, 364. 
 Seton, Appleyard, 82. 84. 
 
 V. Slade, 14. 
 
 Seymour, Lord Hinchiiibrook t\ 
 
 17. 
 Shackle v. Baker, 311. 
 Shad well, llawden v. 1 7. 
 Shaftoe, Adair v. 157. 
 Sharp V. Ash ton, 89. 121, 122, 123. 
 — — , Beaumont r. 173. 
 Shaw, Fitzhcrbert v. 154. 
 
 , Mansfield v. 300. 
 
 Shebbeare, Duke ol" Queensberry 
 
 V. 276. 
 
 Shelly V. Nash, 14. 
 Shelton, Aschughe v. 325. 
 
 , rulteney v. 52. 
 
 V. Stanley, 364. 
 
 Sliendon v. Carpenter, 96. 
 Shepley, Woodhouse r. 15. 
 Sherborne, Lord, v. Naper, 354. 
 Sherwin, Earl of Bath v. 357. 
 Sherwood, Southey v. 283. 289. 
 
 317. 
 Shipbrook, Lord, v. Lord Hinchin- 
 
 brook, 297. 
 Shoolbred v. Boats, 51. 
 Short V. Taylor, 237. 
 Shotbolt V. Blscow, 337. 
 Slderson v. Eastcourt, 43. 
 Sidney v. Hetherington, 67. 70. 
 Sill V. Mole, 1 48. 
 Siincox, Stationers' Company v. 
 
 332. 
 Sims I'. Barry, 6. 
 Simmons, Knox v. 7. 
 
 V. Mullins, 78. 
 
 Simj)s()n, Don'u v. 301. 
 
 , Taty V. 106. 
 
 . V. Vaughan, 8. 
 
 , Wright V. 39. 
 
 Skinner, Brook v. 32. 
 Ska[)liolme v. Hart, 18. 
 Skip V. liar wood, (j6. 
 
 V. Huey, 5. 
 
 , West V. 30. 
 
 Skynner, Hyde v. 175. 
 Slade, Seton v. 14. 
 Slater, Weeks c. 360. 
 Sleech V. Thorington, 7- 
 Slingsby v. Boulton, 312.
 
 xliv 
 
 INDEX OF CASES. 
 
 Sloniun V. Walter, 'Z\, 9.9,. 
 
 iSniall V. Brackk'y, 15. 
 
 SmalJnmn v. Onions, IT'i, 17'3. 
 
 Sniallpiccc v. Anguisli, 300. 
 
 Snieaton, Wellcr v. 361. 
 
 Smetliur.st, Lord Cochrane v. 249. 
 9.Q2. 
 
 Smith, Aykwell v. 15. 18. 292, 
 29a. 332. 
 
 V. Beatniff, 12. 
 
 V. Bruning, 14. 18. 
 
 V. Campbell, 7. 
 
 , Colly er v. 196. 
 
 ■ r. Clarke, 320. 
 
 V. Cooke, 208. 
 
 V. Coney, 7. 
 
 , Cousins V. 61. 
 
 , Cutlet r. 299. 
 
 ' V. Dickenson, 22. 
 
 V. Garland, 17. 
 
 , Gibson V. 324. 
 
 V. Hibernian Mine Coiri- 
 
 pany, 83. 
 
 , Hodges V. 347. 
 
 V. Kempson, 138. 
 
 r. Knox, 41. 
 
 Mackmurdo v. 269. 
 
 , Nisbett T. 40, 
 
 , Pitt V. 13. 
 
 r. Snotsbull, 141. 
 
 V. Target, 341. 
 
 , TendriU v. 12. 
 
 , Thompson r. 11. 293. 
 
 Smyth, Battersby v, 16. 
 
 , Lord Delvvn v. 90. 109. 
 
 121. 
 
 v. Smythe, 328. 
 
 Snaggs, Gilliver v. 288. 
 Snotsbull, Smith r. 141. 
 Snow V. Cameron, 88. 
 Snowball v. Vicaris, 44. 
 Solomon v. Benfield, 301. 
 Somerset, Lord Noel t . 297. 
 
 ■—, Duke of, Gourlay v. 28. 
 
 Somerville, Lord, Rolt v. 214. 
 South London Waterworks, Han- 
 
 nam v. 26, 134. 
 Southey v. Sherwood, 283, 289- 
 Sowerby v. Warder, 62. 
 Spaight, O'Connor v. 29. 
 Sparks, Liverpool Water-\vorks 
 
 Company, v. 22. 
 Sparrow, Keating v. 23. 
 — - — — , Kerrison xk 230. 
 Spear v. Crawter, S{52. 
 Speldt r. Lechmere, 1 1 
 Spencer, Gee v. 12. 
 
 , Hill r. 18. 
 
 — , Earl, Vauxhall-bridge 
 
 Company x'. 16. 
 Spicer, Hay ward t. 18. 
 Spiller, Spurrel v. 15. 
 Spray, Goodwin v. 172. 
 Spurgeon v. Collier, 14. 
 Spurrel v. Spiller, 15. 
 Stafford, Marquis of, Swinneiton 
 
 V. 354. 
 , Lcjrd, Travers r. 88. 
 
 126. 
 Standen v. Standen, 7. 
 Stanhope v. Thompson, 217. 
 , Lord, Lord ^lahon r. 
 
 181. 183. 
 Stanley, Shelton f. 364.
 
 INDEX OF CASES. 
 
 xlv 
 
 Stansfield, Harbergham v. 168. 
 
 170. 
 Stan way, Bolt v. 73, 74. 
 Stany, Underwood i. 5. 
 Stapilton v. Stapilton, 12. 
 
 , Hellyard v. 17. 
 
 Statham, Boson v. 16. 
 Stationers' Company case, 270. 
 
 — V. Lee, 270. 
 
 V. Partridf^e, 
 
 270. 
 
 332. 
 
 V. Simcox, 
 
 V. Wright, 
 
 270. 
 
 Stawell, Lord, Attorney General 
 V. 147. 
 
 Stebbing v. Walkey, 7. 
 
 Steele v. Wright, 5. 
 
 Stcinwacks, White t . 83. 
 
 Stephens and Stevens t . Bagwell, 
 18. 
 
 V. Bateman, 12. 
 
 V. Cini, 54. 
 
 , Edgeberry v. 248. 
 
 V. Lynch, 10. 
 
 V. Praed, 6. 
 
 Stephenson and Stevenson v. An- 
 derson, 343. 348. 
 
 • V. Chiswell, 6. 
 
 , Doe V. 
 
 V. Praed, 1 1 . 
 
 — ■ V. Wilson, 11. 
 
 Steward, Bowles v. 12, 13. 
 
 , Phipps r. 302. 
 
 Stlckland v. Aldridgc, 16. 
 Stirling, Corson v. 97. 
 
 Stiles, Martin v. 232. 
 Stock, Mawson v. 15. 
 Stockdale, Matthewson r. 282. 
 Stockley v. Stockley, 12. 
 Stone, Rayner v. 27. 
 
 V. Tuffin, 73. 
 
 Stonehouse r. Stonehouse, 138. 
 Stoneman, Gladdon v. 300. 
 Story, Wilson v. 355. 
 
 V. Lord Windsor, 207. 
 
 Strachan v. Brander, 14. 18. 
 Strachey, Boadley v. 203. 
 Straiford, Earl of, Jones v. 35. 
 , Duke of Leeds 
 
 r. 362. 
 Strathmore, Lady, r. Bowes, 12. 
 
 180. 
 Street, Anderton v. 305. 
 .^tribley v. Hawkie, 365. 
 Stuart V. Ancell, 130. 
 Surrey v. Waltham, 341. 346. 
 Sutton V. Chetwynd, 17. 
 
 , Hales V. 53. 
 
 V. Earl of Scarborough, 
 
 337. 
 Sydenham, liich v. 13. 
 Sydney v. Sydney, 296. 
 Symmonds, Croggon v. 344. 
 
 , Knox r. 106. 
 
 , Thompson v. 267, 
 
 268. 
 Swailc, Clarke v. 13. 
 Swanston, T^vogood v. 7. 
 Swayne v. Mills, 96. 
 Sweet i: Partridge, 303. 
 Swinnerton v. ^laiijuis of Staflord, 
 
 ooh.
 
 xlvi 
 
 JNDEX OF CASES. 
 
 Taggart v. Hewlett, 109. 
 Talbot, Duke of Chandos t;. IJJO. 
 Talleyrand v. lioulanger, 12. 
 Tamworth, Lord, v. Earl Ferrers, 
 
 182. 
 Tanfield v. Davenport, 139. 
 Target, Smith v. 341. 
 Taylor v. Allen, 300. 302. 
 
 V. Hay 1 in, 7. 
 
 , Millar v. 286. 
 
 , Monteith t'. 130. 
 
 , Nay lor v. 134. 
 
 , Rex V. 228. 
 
 , Short V. 237. 
 
 , Waters v. 307. 
 
 Taylour t'. Rochford, 14. 
 Teasdale r. Loughan, 348. 
 Tempest v. Ord, 297. 
 Templar, Evelyn v. 17. 
 Temple, Atkins v. 149. 
 
 V. Bank of England, 294. 
 
 Tenant v. Braie, 18. 
 
 , Ilearne v. 67. 
 
 , Osborne v. 67. 
 
 Tennant's case, 247. 
 Tendril f. Smith, 12. 
 Terrewest v. Featherby, 32. 
 Terry v. Harrison, 293. 
 Teynham, Lord, r. AVebb, 361. 
 Thackeray, Lord Kilmorey v, 298. 
 Thanet, Earl of, x'. Paterson, 346. 
 Thelusson, Malr v. 121, 122, 123. 
 
 Thirey v. , 348. 
 
 Thoburn r. Barrett, 100. 
 Thomas, Franklyn v. 63, 74. 
 
 , Edwin V. 354. 
 
 c. Fruzer, S. 
 
 Thomas, Hole v. 1 73. 
 
 , Hurst V. 96. 
 
 t'. Llewellyn, 100. 
 
 V. Williams, 15. 
 
 ThomondX Lord, case, 342. 
 Thompson, Aldridge v. 348. 
 
 , Bunny z?. 11. 
 
 -.'. Butler, 106. 
 
 , Chandler v. 233. 
 
 V. Harrison, 15. 
 
 , Hill V. 249. 260. 
 
 V. Jones, 52. 
 
 :. Leake, 11. 
 
 , Morley v. 340. 
 
 , Pieters v. 142.* 
 
 , Smith r. 11. 293. 
 
 r. Symonds, 267, 268. 
 
 V. Thompson, 18. 
 
 lliorington, Sleech v, 7. 
 Thornberry, East v. 9. 
 Thornhill, Eanishaw v. 83. 94. 
 Thornton, Whitmore v. 44. 71. 
 Thorpe, Clarke r. 149. 
 
 V, Goodall, 357. 
 
 Tilley V. Bridge, 72. 
 Tillotson V. Ganson, 35. 
 Tindal v. Brown, 41. 
 Tipelady, Parre v. 138. 
 Toller r. Carteret, 142. 
 Tombs, Randolph v. 76. 
 Tomkins v. Tomkins, 7. 
 Tonson f. Walker, 288. 
 Tonnins r. Prout, 313. 
 Tooke V. Hartly, 37. 
 Toulmin v. Price, 5. 
 Tourle c. Rand, 12. 
 Townrow i , Benson, 29.
 
 INDEX OF CASES. 
 
 xlvii 
 
 Townsend, Askew v. 852. 
 Tracy t;. Tracy, 162. 
 Trafford, Duckworth r. 304. 
 Traiton v. Traiton, 18. 
 Trapaud, Cormick v. 17. 
 Travers, Beard v. 207. 
 
 V. Lord Stafford, 88. 
 
 126. 
 Trccothick, Coles v. 6. 13, 14. 
 Tregonwell v. Lawrence, 149. 
 Tresham v. Gerard, 164. 
 Tresswell v. Guibon, 139- 
 Trevlllian, Arundell r. 14. 18. 
 Trinlck r. Bordfield, 141. 
 Tritton v. Foote, 175. 
 Trott, Hambly v. 212. 
 Troughton, Binkesr. 301. 
 Trusler v. Corny ns, 289. 
 Tuffin, Stone v. 73. 
 Tulk V. Houldltch, 301. 
 Tunstall, Cliurchman v. 234. 
 Turner r. Bazeley, 124. 
 
 V. Buck, 212. 
 
 , Godfrey v. 5. 
 
 , Hawkins v. 17. 
 
 ' , Hill r. 138. 
 
 V. Wentworth, 164. 
 
 T'. Winter, 252, 253. 
 
 Turton v. Benson, 14. 
 Twiford, Hillier v. 155. 
 Twigg V. Fifield, 6. 
 Twistleton, Griffith r. 14. 
 Twogood V. Swanston, 7. 
 Twort f. Twort, 173. 
 Twyne, Inwood r*. 219. 
 Tyrer, Onions r. 6. 
 Tyrrell, Crow v. 359. 
 
 Ulrich V. Litchfield, 7. 
 Underwood v. Horwood, 8. 
 
 V. Staney, 5. 
 
 Upton, Darwin v. 232. 
 Utterson v. Mair, 301. 
 Usborne v. Usborne, 166. 
 Uvedale v. Uvedale, 166. 
 
 Vade, Bennett v. 13. 
 Vane v. Lord Barnard, 178. 
 Vann v. Burnett, 304. 
 Vansando v. Rose, 325. 
 Vansommer, Barker v. 16. 
 
 , Chavany r, 306. 
 
 Vassal, Foster v. 142. 
 Vaughan, Simpson v. 8. 
 
 , Welsh V. 34. 
 
 Vauxhall-bridge Company v. Earl 
 
 Spencer, 16. 
 Vavasor, Dolman v. 362. 
 VavasouFs case, 148. 
 Venables v. Foyles, 365. 
 Vendall v. Harvey, 140. 
 Verelst, Nichol v. 79. 
 Vermuden, Brown v. 359- 
 Vernon, Acherley v. 47. 
 
 V. Bethell, 14. 
 
 • ?•. City of Dublin, 335. 
 
 , Hankey y. 11. 
 
 , Salkeld v. 9. 12. 
 
 , Lord, Lee v. 175. 
 
 Vesey v. Wilks, 121. 
 Vicaris, Snowball c. 44. 
 Vicars, Attorney General v. 16. 
 
 , Burke /•. 54. 
 
 Villars c. Lady Osborn, 301. 
 Vincent, East Incliii Company r. 
 12. 157.
 
 xlviii 
 
 INDEX OF CASKS. 
 
 Vincent, HaberjTliain v. 16*9. 
 Viner, Earl of Chesterfield r. 172. 
 Vipan V. Mortlock, 126, 127. 
 Virgin, Moseley v. 27. 
 Vivian, Goodwyn v. 146. 
 
 Wadeson, Ncale v. 61. 
 Wadman v. Caleraft, 25. 
 Wadsworth, Armitage v. 350. 
 Wafer v. Mocatto, 26. 
 Wake V, Conyers, 362. 
 Wakefield, Davis v. 139. 
 Walcot V. Walker, 283, 287. 
 Waldo V. Caley, 316. 
 Walker, Bagster v. 125. 
 
 — , BaUer v. 273. 
 
 , Bell V. 280. 
 
 V. Consett, 7. 
 
 , Gardiner v. 138. 
 
 , Moore v. 274. 
 
 , Power V. 274. 
 
 , Povvley V. 199. 
 
 , Jonson V. 280. 
 
 , Walcot V. 283. 289. 287. 
 
 — V. Walker, 302. 
 
 ?;. Woolaston, 301. 
 
 Walkey, Stebbing v. 7. 
 Wallace, Fullarton v. 54. 
 Wallaw V. Wright, 77. 
 Waller, Forester v. 275. 
 Wallis, Delancy v. 54. 
 
 V. Glyn, 66. 
 
 V. Duke of Portland, 18. 
 
 Walmsley v. Booth, 14, 
 
 ■ V. Child, 5. 
 
 , Marshall v. 359. 
 
 Walter, Sloman y. 21, 22. 
 
 Walter r. Russel, 101. 
 
 V. Young, 7. 
 
 Waltham, Surrey v. 341. 346. 
 Walton, Doolittle v. 295. 
 Walwyn v. St. Quintin, 41. 
 Ward V. Lord Courtovvn, 155. 
 
 , Jennings v. 14. 
 
 V Loiing, 130. 
 
 , Royal Exchange Company 
 
 V. 56. 
 
 , Lord, Lord Dudley r. 142. 
 
 VV^ardell, Robinson v. 107. 
 Warden, Lightbone v. 5. 
 Warder, Sowerby v. 62. 
 Ware v. Polhill, 219. 
 
 V. Horwood. 11. 
 
 Waring, Pierce v. 13. 
 Warner, Ex parte, 297. 
 
 , White V. 26. 
 
 Warren, Pulteney v. 6. 198. 207. 
 \^^arrington, Earl of, Hodson v. 
 
 136, 141. 
 
 V. Mosely, 359. 
 
 Warter v. York, 297. 
 
 Warwick, Earl of, v. Duke of 
 
 Beaufort, 134. 
 Hospital V. Fielding, 
 
 358. 
 AVaters v. Taylor, 307. 
 Wathen, Colman v. 273. 
 Wathcrell v. Howells, 148. 
 
 Watson V. , 282. 
 
 , Baskett v. 270. 
 
 , Hodgson V. 297. 
 
 , Pears v. 241. 
 
 , Rex t'. 228. 
 
 Wattleworth v. Pitcher, 50. 56.
 
 INDEX OF CASES. 
 
 xlix 
 
 Watts, Bullasr. 21. 
 
 , Rex r. 228. 
 
 V. Brooks, IS. 
 
 Way V. Foy, 319. 
 Weatlierlicad v. Wilson, 3G. 
 Webb, Bruce v. CO. 
 
 -, Hackett v. 348. 
 
 5 Hale r. 6. 
 
 , Lingard v. 131. 
 
 , Bishop of London i\ 199. 
 
 , Meade r. 12. 
 
 V. Plummer, 205. 
 
 V. Rose, 275. 
 
 , Servington v. 364. 
 
 , Lord Teynham v. 361. 
 
 V. Wise, 130. 
 
 W^eble, De Berenger v. 268. 
 Weeks v. Slater, 360. 
 Welby V. Duke of Rutland, 361. 
 Weld V. Hornby, 227. 
 Weldon, Astley v. 22. 
 
 , How v. 14. 
 
 Weller v. Smeaton, 361. 
 Welles r. Middleton, 14. 
 Wellington, Poulson v. 15. 
 Wells, Gibson v. 159. 
 Welsh V. Hannam, 128. 
 
 ; V. Vaughan, 34. 
 
 Wentworth, Angerstein v. 56. 
 
 , Bancroft v. 18. 
 
 V. Turner, 164. 
 
 Wesket v. Carnevali, 117. 
 West, Davis v. 24. 
 
 V. Primate of Ireland, 7. 
 
 V. Skip, 30. 
 
 Western, Bush v. 361. 
 Weston, Barnctt v. 12. 
 
 AVeston v. Lyddall, 155. 
 Whaley, Cooke v. 178. 
 
 V. Norton, 18. 
 
 Wharrey, Frogmorton v. 169. 
 Wharton r. May, 14;>. 
 
 , Lord, Robinson v. 4. 
 
 Wheeler, Palmer v. 17. 
 Whichcote r. Lawrence, 13. 
 Whitchurch r. Hide, 361. 
 
 V. Holwortliv, 195. 
 
 White, Clapham t. 111. 120. 
 
 , Coulson V. 231. 
 
 , Dunnage v. 12. 
 
 V. Geroch, 275. 
 
 V. Hall, 142. 
 
 — , Klevcrs f. 54. 
 
 , Earl of jMountnorris x\ 23. 
 
 , Rex V. 227. 
 
 , Sherwood r. 117. 
 
 V. Steinwacks, 79. 83. 
 
 r. Warner, 26. 
 
 Whitelegg i: Wliitelegg, 323. 
 Whitfield, Bewick v. 214. 
 
 V. Bewit, 155. 214. 
 
 V. Faussett, 5. 
 
 V. Hales, 297. 
 
 Whitmore v. Thornton, 41' 71. 
 Whittingham v. Woolcr. 281. 289. 
 Whorewood, Lowther v. 86. 
 Wickhani v. Wickham, 219- 
 Wigglesworth v. Dalison, 199- 
 Wilbeani r. Ashton, 32. 
 Wilcox f. Drake, 297. 
 
 , Gyles V. 280, 281. 
 
 Wildev I. Coopers' Com})aiiy, 10. 
 Wilkiiis V. Aiken, 282. 
 Wilkinson, Bio we v. 85.
 
 INDEX OF CASES. 
 
 Wilkinson, Neville v. 12. 15. 
 AVilks, Roworth r. 267. 
 
 , Vcsey V. 121. 
 
 Willan V. Willan, 175. 319. 
 WillettT'. Winnall, 14. 
 Williams, Duke of Bolton v. 185. 
 215. 
 
 V. Brodie, 253. 
 
 , Cowtan, 342. 
 
 V. Day, 178. 185. 
 
 , Ex parte, 1 6. 
 
 , Laner. 108. 
 
 , Leigh V. 14. 
 
 V. Macnamara, 182. 
 
 V. Nutt, 38. 
 
 , Osl)orne v. 16. 18, 19. 
 
 V. Price, 7. 312. 
 
 V. Thomas, 15. 
 
 V. Williams, 7. 312. 
 
 Willis, Fuller v. 134. 
 Willoe, Bateman v. ^9. ■ 
 AVillsr. Rich, 301. 
 Wilmot V. Lord Lansdowne, 168. 
 Wilson, Corporation of Carlisle v. 
 29. 
 
 , Dougal i: 232. 
 
 , Fodringham v. 86. 
 
 , Stephenson t. 11. 
 
 V. Stoi-y, 355. 
 
 V. Weatherhead, 36. 
 
 Winch, Doe r. 357. 
 Winchester, Longman v. 282. 
 
 's, Bishop of, case, 205. 
 
 V. Knight, 
 
 207. 212. 
 
 -, Dean of, Wither v. 
 
 148. 203, 204. 
 
 Windsor, Dean of, v. Perwin, 16. 
 
 , Lord, r. Earl Pom- 
 fret, 6. 
 
 , Story V. 207. 
 
 Winfield, Pyatt?;. 172. 
 
 Winfbrd, Cooke v. 185. 
 
 Winnall, Willelt v. 14. 
 
 Winter, Blount v. 296. 
 
 r, Llghtbound, 136. 
 
 , Turner v. 252, 253. 
 
 Wise V. Webb, 130. 
 
 Withall V. Lilley, 44. 
 
 V. Mastcrman, 41. 
 
 Wither v. Dean of Winchester, 
 148. 203, 204. 
 
 Wltherington v. Banks, 165. 
 
 AVood V. Downes, 14. 18. 
 
 t . Zimmer, 247. 
 
 Woodcock, Ramsay v. 358. 
 
 Woodham, Goodinge t. 96, 97. 
 100. 
 
 AVoodhousc v. Shepley, 15. 
 
 Woodward v. King, 66. 75. 
 
 V. Gyles, 1C8. 
 
 Woolaston, Walker r. 301. 
 
 V. Wright, 341. 
 
 Wooler, AAliittlngham v. 281. 289. 
 
 Worden v. Ellers, 199. 
 
 Worrall, Gadd r. 127. 
 
 Worsefold, Hamilton z\ 193. 
 
 Worsley, Roberts r. ,53. 
 
 Worthington, Kenyon v. 32. 
 
 Woton, Levlngton ; . 141. 
 
 Wray, Pooley r. 9. 
 
 Wren, Earl of Newburgh :•. 139- 
 
 Wright f. Atkyns, 160. 322. 
 
 — t. Bluck, 301.
 
 INDEX OF CASES. 
 
 li 
 
 Wriglit V. Braine, 80. 82. 
 
 , Gilliat V. 54. 
 
 , Harrison v. 22. 
 
 V. Simpson, 38. 
 
 • , Stationers'' Company 
 
 270. 
 
 -, Steele r. 5. 
 -, Wallaw r. 77. 
 
 , ^\ oolaston v. 341. 
 
 AVyatt V. Barnard, 280. 
 
 , Chalk V. 232. 
 
 , Hawkes v. 12. 
 
 Wycherlcy r. Wychcrlcy, 12. 
 Wynn, Catwallcll r. 139. 
 
 r. Hatty, 361. 
 
 V. Owen, 106. 
 
 Ximenes, Franco v. 313. 
 
 Yallop, Ex pari e, 11. 
 
 Yard x: Ford, 233. 235. 
 
 Yarmouth, Town of, v. Dean of 
 Norwich, 358. 
 
 Yates V. Barber, 86. 
 
 Yeaw f, Holland, 229. 
 
 Yeomans r. Kilvington, 352. 
 
 York Buildings'* Company, Mac- 
 kenzie i\ 13. 
 
 York, Mayor of, v. Pilkington, 4-2. 
 333. 
 
 Yorke, Warter v. 297. 
 
 Young V. Peachy, 12. 16. 
 
 f. Kcighly, 30. 
 
 , Walter v. 7. 
 
 Zang, Rix v. 82. 
 Zimmer, Wood v. 247,
 
 TREATISE 
 
 ON THE 
 
 LAW OF INJUNCTIONS. 
 
 CHAPTER I. 
 
 (y Injunctions i?i General* 
 
 An Injunction is a writ, issuing by the order and 
 under the seal of a court of equity, and is of two 
 kinds : the one is the Writ Remedial, amongst the 
 most ordinary objects of which the following may 
 be enumerated : To stay proceedings in courts of 
 law, in the spiritual cpurts, the courts of admiralty, 
 or in some other court of equity : to restrain the 
 indorsement or negotiation of notes and bills of ex- 
 change, the sale of land, the sailing of a ship, the 
 transfer of stock, or the alienation of a specific 
 chattel ; to prevent the wasting of assets or other 
 property pending litigation, to restrain a trustee from 
 assigning the legal estate, from setting up a term 
 of years, or assignees from making a dividend ; to 
 prevent the removing out of the jurisdiction, mar- 
 rying, or having any intercourse which the court 
 disapproves of, with a ward : to restrain the com- 
 mission of every species of v/aste to houses, mines, 
 timber, or any other part of the inheritance ; to pre- 
 
 B
 
 2 OF INJUNCTIONS IN GENERAL. 
 
 Injunctions yeiit tlic infringement of patents, and the violation 
 
 2'*/ ^^OlCTCtt 
 
 ^ of copyright either by piibHcation or tlieatrical re- 
 presentation ; to suppress tlie continuance of public 
 or private nuisances ; and by the various modes of 
 interpleader, restraint upon multiplicity of suits, or 
 quieting possession before the hearing, to stop the 
 progress of vexatious litigation. These however 
 are far from being all the instances in which this 
 species of equitable interposition is obtained. It 
 would indeed be difficult to enumerate them all ; for 
 in the endless variety of cases in which a plaintiff is 
 intitled to equitable relief, if that relief consists in 
 restraining the commission or the continuance of 
 some act of the defendant, a court of equity admi- 
 nisters it by means of the Writ of Lijimction. 
 
 The other species of injunction is called the Ju- 
 dicial Writ, and issues subsequent to a decree. It 
 is a direction to yield up, to quiet, or to continue 
 the possession of lands, and is properly described 
 as being in the nature of an execution.
 
 TO STAY PROCEEDIiMGS AT LAW. 
 
 CHAPTER II. 
 
 Of Injunctions to stay Proceedings at La'w. — In 
 what cases granted. 
 
 It frequently happens that a person, in conse- In u-hat cases 
 
 quence of some circumstance of which judicial ^^°" 
 
 notice can only be taken in a court of equity, has an 
 advantage in proceeding in a court of ordinary juris- 
 diction, which must make that court an instrument 
 of injustice (aj. There are also many cases in 
 which the legal defence to a claim set up at law, 
 rests either exclusively, or in a great degree, within 
 the knowledge of the party advancing the claim, by 
 which means, that defence can only be obtained 
 througli the assistance of a court of equity. As it 
 is against conscience therefore that the party should 
 in the one case, make any use of the advantage of 
 which he is thus inequitably possessed, or that he 
 should in the other proceed in the assertion of his 
 claim, without communicating the information ; it 
 has become one of the most ordinary modes of equi- 
 table interposition to afford relief by Injunctions to 
 stay proceedings at law. 
 
 The Writ which issues in these cases has been 
 
 (a) Redes. Tr. Ch. PI. 102. 
 
 B ^
 
 4 
 
 TO STAY rROCEEDINOS AT LAW. 
 
 In ivJiat cases frequently stated to be in tlic nature of a Prohi- 
 ^^^" ^ bition : but it differs so essentially from it, that 
 
 there seems considerable impropriety in the com- 
 parison. A Prohibition is a remedy against an en- 
 croachment of jurisdiction, issues only from a supe- 
 rior court, is granted on the suggestion that the 
 court to which it is directed has not the legal cog- 
 nizance of the cause; and is directed to the judge 
 j of the inferior court, as well as to the parties in the 
 cause. An Injunction on the other hand, where its 
 I object is to restrain proceedings in another court, is 
 directed only to the parties; neither assumes any 
 I superiority over the court in which they are pro- 
 ceeding, nor denies its jurisdiction; but is granted 
 on the sole ground that from certain equitable cir- 
 cumstances, of which the court that issues it has 
 cognizance, it is against conscience for the party to 
 proceed in the cause. 
 
 It W'iil be proper in the consideration of this sub- 
 ject, 1st, To enumerate the cases in which a court 
 of equity interposes, by granting Injunctions to stay 
 proceedings at law : for though it would be irrelevant 
 to enter into a minute discussion of principles and 
 their application, yet a reference to the authorities 
 which contain the grounds upon which this relief 
 is most frequently granted, will probably be found 
 useful ; and 2dly, To show by what means such 
 Injunctions are obtained, dissolved, revived, con- 
 tinued to the hearing, and made perpetual. 
 
 A very ancient branch of equitable jurisdiction is 
 that o^ Accident ; the usual instance of which is the 
 relief given where a bond or other security has been 
 
 Accident.
 
 TO STAY PROCEEDINGS AT LAW. d 
 
 lost, burnt, or accidentally cancelled (a). Upon this /« -^vknt cases 
 ground an administrator who had committed a devas- ^ 
 tavit at law by paying legacies, was relieved against 
 a bond which unexpectedly started up, tlie assets 
 having been originally sufficient, but the greatest 
 part of them, which consisted of houses, having 
 been consumed in the fire of London [b). It has how- 
 ever been determined in contradiction to the first 
 decisions upon the point (c), that there is no equity 
 under this head of accident in favour of the lessee of 
 a house, who is liable to repair, with an exception of 
 damage by fire, for an injunction against an action 
 under the contract for nonpayment of rent upon 
 the destruction of the house by fire (f/) ; and upon the 
 principle that apurchaser becomes in eqiuty the owner 
 of the premises from the moment of the contract, if the 
 premises are deteriorated by Hre or other accident be- 
 
 {a) Berry v. Style, Latch. 24. Abdee's case, ib. 146. Bright- 
 man's case, ib. 148. Anon. 1 Vern. 180. Godfrey v. Turner, ib. 
 247. Nicholson v. Pattison, ib. 310. Underwood v. Staney, 1 (>h. 
 Ca. 77. Collet r. Jaques, ib. 120. Lightbone v. Warden, 1 Eq. 
 Ab. 92. Whitfield v. Fausset, 1 Ves. 387. Skip v. Huey, 3 Atk. 
 93. Toulmin v. Price, 5 Ves. 238. East India Comp. v. Boddam, 
 9 Ves. 464. That no relief is given in equity in the case of a lost 
 bill of exchange, &C., vide Walmesley v. Child, 1 Ves. 341. Glyu 
 V. the Bank of England, 2 Ves. 41. Mossop i-. Eadon, 16 Ves. 430. 
 
 (b) Croft V. Lyndsey, 2 Freem. 1. 
 
 (c) Camden v. Morton, 2 Eden, 219. Brown v. Quilter, ib. 
 S. C. Amb. 619. Steele v. Wright, cit. 1 T. 11. 70S. 
 
 (d) Hare v. Groves, 3 Anst. 687. Holtzappfell v. Baker, 18 Ves. 
 115. This subject was first discussed by INIr. Fonblanque, in a 
 very able note to the Treatise on Equity (5th edition, vol. 1. 374). 
 The arguments there adduced by him led the court of exchequer 
 to that sound conclusion by which the determinations of Lord 
 Northington and Lord Bathurst were overruled.
 
 6 
 
 TO STAY rilOCi:EJ)INGS AT LAW. 
 
 In xvliat cases fore tlic contract is completed, yet tlie loss will fall 
 
 ^ upon the j)urcliaser(/7). llie deutnof anoccnpier is not 
 
 that s])ecies of accident npon wliich a court of equity 
 will sustain a bill for an account of mesne profits (//); 
 but numerous modern decisions have established, 
 that where several persons are jointly bound, though 
 at law the security of the creditor is wearing out as 
 each of the debtors dies, yet that a court of equity 
 will permit the creditor to resort to the assets of a 
 deceased debtor (c). 
 Mistlike. Mistake is another common head of equitable inter- 
 
 position ; as where a mistake has been made in the 
 drawing, engrossing, or cancellation of an instru- 
 ment (r/), in an account (e), by a testator in the 
 
 (a) Paine v. Mellor, 6 Ves, 349. Coles v. Trecothick, 9 Ves. 
 346. Ex parte Minor, 1 1 Ves. 559. Harford v. Furrier, 1 INIad. 
 Rep. 532, Akhurst v. Johnson, 1 Swanst. 85. Revell r. Hussey, 
 2 Ba. Sc Be. 287. as a purchase before the Master is not complete 
 before confirmation of the report, a loss after the report, but 
 before confirmation, falls upon the vendor. Ex paiie Minor, sup. 
 Twigg V. Fifield, 13 Ves. 517. 
 
 {b) Pulteney v. Warren, 6 Ves. 88. Lord Kenyon, in Hale v. 
 Webb, 2 Bro. C. C. 80. appears to have thought that a court of 
 equit}^ might look upon bankruptcy, under certain circumstances, 
 ai a case of accident, 
 
 (c) Stevens v. Praed, 2 Ves. jun. 523. Daniel v. Cross, 3 Ves. 
 279. Stephenson v. Chiswell, ib. 596. Gray v. Chiswell, 9 Ves. 
 118. Ex jmrte Kendal, 17 Ves. 520. 1 Ptose, 71. Devaynes v. 
 Noble (Sleech's case), 1 Merlv. 539. which have overruled Lord 
 Thurlow's determination in Hoare v. Cotencin, 1 Bro, C. C. 27. 
 
 {d) Crosby v. Middleton, 3 Ch. Rep. 55. Pr. Can. 309. Sims 
 V. Barry, Finch, 413. 2 Freem. 16. Hunburn v. Curtis, Fitzg. 
 118. Onions v. Tyrer, 1 P. W. 345. Henkle v. Royal Exchange 
 Company, 1 Ves. 118. Jalabert v. Duke of Chandos, 1 Eden, 
 372. East India Company v. Neave, 5 Ves. 173. 
 
 (<■) Rodney t'. Hare, Mose, 296. Roberts v. Kuffin, 2 Atk.
 
 TO STAY PllOCEEDINGS AT LAW. 7 
 
 calculation of a legacy (a), or in the number (b), I'^ ^^^^ni cases 
 
 \ 1 !_• granted. 
 
 names, or description of legatees (c) : or by arbi- 
 
 trators in a matter of fact, or in a matter of law if 
 (according to the recent modification of the doc- 
 trine), a question of law has been expressly submitted 
 to them (d). Upon this principle are founded the 
 cases (too numerous to be here cited), in which 
 
 1 13. Earl Pomfret v. Lord Windsor, 2 Yes. 482. Brownell v. 
 Brownell, 2 Bro. C. C. 82. Taylor v. Haylin, ib, 310. 1 Cox, 
 435. Johnson v. Curtis, 3 Bro. C. C. 266. Lewis v. Morgan, 
 3 Anst. 769. Walker v. Consett, For. Ex. Rep. 157. Grey v. 
 Minnithorpe, 3 Ves. 103. Chambers v. Goldwin, 5 Ves. 834, on 
 Appeal, 9 Ves, 254. Twogood v. Swanston, 6 Ves. 485. Kins- 
 man V. Barker, 14 Ves. 579. Drew v. Power, 1 Sch, & Lef. 192. 
 
 (a) Milner v. Milner, 1 Ves. 106. Brackenbury v. Bracken- 
 bury, 2 Eden, 275. Amb. 474. Danvers v. Manning, 2 Bro. C. C. 
 18. 1 Cox, 203. Williams v. Williams, 2 Bro. C. C. 87. Phipps 
 V. Lord Mulgrave, 3 Ves. 613. 
 
 (b) Sleech v. Thorington, 2 Ves. 260. Tomkins v. Tomkins, cit. 
 19 Ves. 126. Scott v. Fenhoulet, 1 Cox, 79. Stebbing v. Walkey, 
 2 Bro. C. C. 85. 1 Cox, 250. Humphreys v. Humphreys, 2 Cox, 
 184. Garvey v. Hibbert, 19 Ves. 125. 
 
 (c) Ulrich V. Lichfield, 2 Atk. 372. Hussey v. Berkley, 2 Eden, 
 194. Andrews i;. Dobson, 1 Cox, 425. W^est v. Primate of 
 Ireland, 3 Bro. C.C. 148. 2 Cox, 258. Dclmare r. Rebello,2 Bro. 
 C. C. 446. 1 Ves. jun. 412. Standen v. Standen, 2 Ves. jun. 
 589. 6 Bro. P. C. 195. Abbot v. INIassie, 3 Ves. 148. Kennell 
 V. Abbott, 4 Ves. 808. Smith v. Coney, 6 Ves. 42. Holmes v. 
 Custance, 12 Ves. 279. Smith v. Campbell, Coop. 278. Careless 
 V. Careless, 1 Meriv. 384. 
 
 (d) Cornforth v. Geer, 2 Vern. 705. Metcalf v. Ives, 1 Atk. 
 63. Ridout V. Pain, 1 Ves, 11. 2 Atk. 494. Anon. ib. 644. 
 Price V. Williams, 3 Bro. C. C. 163. 1 Ves. jun. 365. Knox v. 
 Simmons, 3 Bro. C. C. 358. 1 Ves. jun. 369. Morgan v. INIather, 
 2 Ves. jun. 15. Dick v. Milligan, ib, 23. 4 Bro. C. C. 117. Ching 
 V. Ching, 6 Ves. 282. Young v. Walter, 9 Ves. 361'. note to 
 Nichols V. Chalie, 14 Ves. 271.
 
 8 JO STAY rUOCEEDINGS AT LAW. 
 
 In tv/mt casrs defective executions of powers and surrenders of 
 f^2^'^ c()j)ylK)Id huve been supplied, and marriage settle- 
 ments rectified j)in-suant to articles. 
 
 A common instance of this equity is the case of 
 a joint bond, where the court infers, from the nature 
 of the condition and the whole transaction, that 
 the bond was made joint by mistake, and that the 
 real intention of the parties was, that it should be 
 joint and several («). It appears also that similar 
 relief would be given in a case which is the con- 
 verse of this : as where a person executes a bond, 
 meaning that it should be the joint bond of himself 
 and another, and not his several bond ; in such a 
 case, unless there is something special, the person 
 who had become so severally bound, has a right to 
 have that bond delivered up ; for his intention was 
 not to become a mere several obligee, but to be a 
 joint and several obligee, and the rights are different 
 both in law and equity : for if he is only a several 
 obligee he has no remedies over against any one, 
 but if he is a joint and several obligee or only a joint 
 obligee, there is a right of contribution against the 
 other sureties in equity, and of exoneration against 
 the principal (Z»). 
 Mistake in It is clearly settled, that where a deed has been 
 
 executed, or money paid from ignorance of ajcicty 
 or under an erroneous impression respecting it, a 
 
 (rt) Primrose v. Bromley, 1 Atk. 89. Bishop v. Church, 2 Ves. 
 100. 371. Simpson v. Vaughan, 2 Atk. 33. Thomas v. Frazer, 
 3 Ves. 399. Burn v. Burn, ib. 573. Gray v. Chiswell, 9 Ves. 125. 
 Underwood v. Horvvood, 10 Ves. 217. Ex i^rte Halket, 19 Ves, 
 475. Devaynes v. Noble, 1 Meriv. 56i. 
 
 {!>) 10 Ves. 225.
 
 TO STAY PROCEEDIXGS AT LAW. 9 
 
 court of equity will relieve («). But there seems to In ivhat cases 
 have been some difference of opinion upon the ques- "^ 
 tion, whether it would do so, where an act has been 
 done under a mistake of the law. Lord King is 
 reported in one case to have laid down, that the 
 maxim ignorantia juris no7i excusat respected only 
 the public, where ignorance cannot be pleaded in 
 excuse of crimes, but that it did not apply in civil 
 cases J and he accordingly set aside certain instru- 
 ments which had been executed under a mistaken im- 
 pression of the law(Z'). In another case Lord Talbot 
 observed, that it seemed hard that a person should 
 suffer for ignorance of the law, or of the customs of the 
 City of London, and set aside a release executed by 
 an orphan ignorant of the full extent of her rights (c). 
 There is also a dictum of Lord Hardwicke, in which 
 he intimated a similar opinion (rf); but in a subse- 
 quent case((?), in which the subject was brought 
 more immediately under his consideration, he ob- 
 served, that if parties are entering into an agree- 
 ment and have the facts before them and their 
 counsel, they shall be supposed to be acquainted 
 with the consequence of law. Lord Eldon (f) has 
 noticed this passage with approbation, and there are 
 
 (a) Pooley v. Wray, 1 P. W. 354". East v. Thornberry, 3 P. W. 
 125. Bingham v. Bingham, 1 Ves. 126. Cocking i'. Pratt, ib. 400. 
 Salkeld v. Vernon, 1 Eden. 64-. Evans v. Llewellyn, 2 Bro. C. C. 
 150. 1 Cox, 333. East India Company u. Donald, 9 Ves. 275. 
 Kidney v. Coussmaker, 12 Ves. 136. 
 
 {h) Lansdown v. Lansdown, Mose, 364. 
 
 (c) Pusey V. Desbouvcrie, 3 P, W. 315. 
 
 (of) Roberts u. Kuffin, 2 Atk. 112. 
 
 (e) Pullen v. Ptcady, 2 Atk. 591. 
 
 (f) 1 V. & B. 30.
 
 10 TO STAY PROCEEDINGS AT LAW. 
 
 In xvhnt cases numerous cases in which tljc court has refused to 
 ^^"" interfere where an instrument has been executed or 
 
 a sum of money paid luider an erroneous notion of 
 the law(rt). We may now, therefore, consider the 
 ) maxim igiiorantia juris non excusal as fully recog- 
 nised in equity as it has long been unquestionably 
 established in civil cases at law(Z>). 
 
 Mistake in A court of equity will not relieve against a mis- 
 coiuluct of a 
 
 cause at law, 
 
 (a) Mildmay v. Hungcrford, 1 Vern. S-iS. Harman v. Camm, 
 4- Vin. Ab. 387. Wildey v. Coopers' Company, 3 P. W. 127. n. 
 Atwood V. Lamprey, ib. Lord Irnham v. Child, 1 Bro. C.C. 93. 
 Langstaffe v. Fenvvick, 10 Ves. 406. Currie v. Goold, 2 Mad. 
 Rep. 163. 
 
 (6) The principle that ignorant ia juris non excusat is firmly 
 established at law, in civil as well as in criminal cases, and it has 
 been repeatedlj'^ determined that money paid under a mistake of 
 law cannot be recovered. Lowrie v. Bourdieu, Doug. 467. Bilbie 
 V. Lumley, 2 East, 469. Herbert v. Champion, 1 Campb. 134. 
 Brisbane v. Dacres, 5 Taunt. 379. Stevens v. Lynch, 12 East, 38. 
 Gomery v. Bond, 3 M. & S. 378. If it ever become necessary to 
 examine this interesting question again in a court of equity, it would 
 probably be found expedient to refer to the civil lav/ authorities, 
 where the subject appears to have been most elaborately dis- 
 cussed. The reader will find two entire titles dedicated to the 
 discussion of the distinction between the juris et facti ignorantia, 
 Dig. 22. Tit. 6. and Cod. 1. Tit. 16. Sir W. D. Evans, in the ap- 
 pendix to his valuable translation of Pothier, has given a transla- 
 tion of a learned dissertation of D'Aguesseau upon this point, who, 
 as well as Vinnius, was of opinion (but contrary to the received 
 doctrine) that money paid from a mistaken idea of legal obligation 
 was subject to repetition. Pothier, on the other hand, and 
 Heincccius maintained the contrary opinion, though the latter 
 made a distinction, holding that with respect to an agreement 
 entered into under a mistake of law, no engagement was contracted. 
 The code Napoleon adopts the distinction of the digest, holding 
 that an error in the person, or in the object, or an error in calcula- 
 tion may be amended, but not an error of right. 2052. 2053. 2058.
 
 TO STAY PROCEEDINGS AT LAW. 11 
 
 take in pleading, or in the conduct of a cause at In ivhat cases 
 la\v(«), or assist a party who has failed in obtaining ^ "" ^ 
 fresh evidence (^). 
 
 There is a remarkable exception to the general Registry act. 
 doctrine upon this subject, arising from the peculiar 
 penning of the Registry act, by which, if the forms 
 required by it have not been complied with, the 
 instrument becomes void to all intents and purposes 
 whatsoever, and no equitable relief can be given, 
 either on the ground of accident or mistake (c). 
 
 But the subject which most frequently calls for Fraud. 
 the interference of a court of equity is comprehended 
 under the extensive head of Jraud, either by sug- 
 gestio falsi [d)^ or suppressio veri{e); or by taking \ 
 
 (a) Stephenson v. Wilson, 2 Vern. 325. Blackball v. Combs, 
 2 P. W. 70. Hohvortby v. Mortlock, 1 Cox, 14-1. Stepbenson 
 V. Praed, 2 Vcs. jun. 519. Bateman v. Willoe, 1 Scb. and Lef. 
 201. Ware v. Horwood, W Ves. 31. 
 
 {b) Hankey v. Vernon, 2 Cox. 12. 
 
 (c) Hibbert v. Rolleston, 3 Bro. C. C. 571. Camden v. Ander- 
 son, 5 T. R. 709. Moss v. Cbarnock, 2 East, 399. Curtis v. 
 Perry, 6 Ves. 739. Speldt v. Lcchmere, 13 Ves. 588. Ex parte 
 Yallop, 15 Ves. 60. jEx/;«?-/e Hougbton, 17 Ves. 251. Tbompson 
 V. Leake, 1 Mad. Rep. 39. Thompson v. Smith, ib. 395. Brewster 
 V. Clarke, 2 Meriv. 75. Dixon v. Ewart, 3 Meriv. 322. Whether 
 a court of equity will relieve when the compliance with the forms 
 of the act has been prevented by fraud is still vexata questio. 
 Newnham v. Graves, 1 Mad. Rep. 399. n. Barker v. Chapman, 
 ib. Mestaer v. Gillespie, 11 Ves. 621. Bunny v. Thompson, 
 Hil. Vac. 1820. 
 
 id) Jervis v. Duke, 1 Vern. 19. Ilobbs u. Norton, ib. 13G. 
 Ibbotson V. Rhodes, 2 Vern. 554'. Draper v. Borlase, ib. 370. 
 Broderick v. Broderick, 1 P. W. 239. Howard v. Hopkins, 2 Atk. 
 371. Buxton V. Lister, 3 Atk. 385. Pearson v. Morgan, 2 Bro. 
 C.C. 386. Evans r. Bicknell> 6 Ves. 182. Burrows v. Lock, 
 10 Ves. 475. 
 
 (e) Hunsden v, Cheyney, 2 Vern. 150. Haiining v, Ferrers,
 
 12 TO STAY PllOCEi:i)IN(;S AT LAW. 
 
 In what cases ail iiiu'onscientioiis advantage cither of parental 
 grand. influence (('z), (unlcs.sthc transaction comes within 
 the ])rotection extended to agreements entered 
 into to preserve the peace of families (b\) du- 
 ress (c), poverty and ignorance of rights (^), weak- 
 
 Gilb. Eq. Rep, 85. 1 Eq. Ab. 356. Beatniffx). Smith, 1 Eq. Ab. 
 357. Savage r. Foster, 9 Mod. 35. Mocatta v. Murgatroyd, 1 P. W. 
 391'. Head v. Egerton, 3 P. W. 280. Meade v. Webb, 1 Bro. P. C. 
 Ed. Toml. 308. Arnot v. Biscoe, 1 Ves. 95. Berrisford v. Mel- 
 ward, 2 Atk. 49. East India Company v. Vincent, ib. 83. Anon. 
 Bunb. 53. Neville v. Wilkinson, 1 Bro. C. C. 543. Pilling v. 
 Armitage, 12 Ves. 85. Ex-parte Carr, 3 V. & B. 111. Bowles 
 V. Stewart, 1 Sch. & Lef. 209. The old doctrine that the mere 
 circumstance of parting with the title deeds is of itself sufficient 
 ground to postpone a prior mortgagee has been repeatedly over- 
 ruled, it being necessary for that purpose that there should be a 
 fraudulent concealment ; concurrence in such purpose ; or negligence 
 so gross as to amount to evidence of a fraudulent intention. 
 Tourle v. Rand, 2 Bro. C. C. 650. Evans v. Bicknell, 6 Ves. 190. 
 Plumb V. Fluitt, 2 Anst, 432. Barnett v. Weston, 12 Ves. 133. 
 
 {a) Blackborne v. Edgley, 1 P. W. 600. Blundell v. Barker, 
 ib, 634. Morris v. Burrough, 1 Atk, 398. Cocking v. Pratt, 
 1 Ves, 401. Tendril v. Smith, 2 Atk. 85. Heron v. Heron, ib. 
 160. Young V. Peachy, ib. 254. Carpenter v. Hcriot, 1 Eden, 
 338, Hawkes v. Wyatt, 3 Bro. C. C. 156. 
 
 {b) Frank v. Fi-ank, 1 Ch. C. 84. Cann v. Cann, 1 P. W. 723. 
 Stapilton v. Stapilton, 1 Atk. 2. Pullen v. Ready, 2 Atk. 587. 
 Cory V. Cory, 1 Ves. 19. Wycherley v. Wycherley, 2 Eden, 175. 
 Stephens v. Bateman, 1 Bro, C, C. 22. Kinchant v. Kinchant, ib, 
 369. Stockley v. Stockley, 1 V. & B. 23. Dunnage v. White, 
 
 1 Swa. 137. and the cases cited in Mr. Swanston's note. 
 
 (c) Strathmore v. Bowes, 2 Bro. C. C. 341. 1 Ves. jun. 22. 
 Talleyrand v. Boulanger, 3 Ves. 447. Peel v. 16 Ves. 157. 
 
 {d) Jervis v. Duke, 1 Vern. 19. Gee v. Spencer, ib. 32. Bro- 
 derick v. Broderick, 1 P. W. 239. Pusey v. Desbouverie, 3 P. W. 
 315. Cocking v. Pratt, 1 Ves. 400. Scrope v. Offley, 1 Bro. P. C. 
 Ed. Toml. 276. Meade r. Webbe, ib. 308. Ramsden v. Hylton, 
 
 2 Ves. 304. Salkeld v. Vernon, 1 Eden, 64. Alden r. Gregory, 
 2 Eden, 280. Evans r. Llewellyn, 2 Bro. C. C. 150. 1 Cox, 333.
 
 TO STAY PROCEEDINGS AT LAW. 18 
 
 ness of intellect short of legal incapacity («), religious In what cases 
 delusion (Z>), or drunkenness, when procured by the ^ 
 contrivance of the party who takes advantage of 
 it(c). Upon principles also of public policy arising 
 out of the relative situation of contracting parties, 
 the court interferes to prevent persons in fiduciary 
 situations from purchasing of their cestuys que 
 trust (d) : it watches with the greatest jealousy 
 gifts from a ward to his guardian (<?), or a client to 
 
 Bowles V. Stewart, 1 Sch. Sz Lef. 209. Murray v. Palmer, 2 Sch. 
 & Lef. 474. East India Company v. Donald, 9 Ves. 275. Leonard 
 V. Leonard, 2 Ba. Sc Be. 184. 
 
 (a) Herbert v. Lowns, 1 Ch. Rep. 12. James v. Greaves, 
 
 2 P. W. 270. Clarkson v. Hanway, ib. 202. Osmond t;. Fitzroy, 
 
 3 P. W. 129. Griffin v. Deveuille, ib. n. Bennett v. Vade, 2 Atk. 
 324. Bridgman v. Green, 2 Ves. 627. Case cited in Lord Done- 
 gal's case, ib. 407. 
 
 (6) Norton v. Relly, 2 Eden, 286. Huguenin v. Bazeley, 1 4 Ves. 273. 
 
 (c) Rich V. Sydenham, 1 Ch. Ca. 202. Johnson v. Medlicot, 
 3 P. W. 131. n. Cory r. Cory, 1 Ves. 19. Cook v. Clayworth, 
 18 Ves 12. Lord Ellenborough has laid down that an instrument 
 executed in a state of intoxication is in all cases void. — Pitt v. 
 Smith, 3 Campb. 33. 
 
 (d) Clarke v. Swailc, 2 Eden, 134. Fox v. Mackreth, 2 Bro. 
 C. C. 400. Campbell v. Walker, 5 Ves. 678. M'Enzie v. York 
 Buildings Company, 8 Bro. P. C. Ed. Toml. 42. Gibson v. Jeyes, 
 6 Ves. 266. Ex parte Hughes, ib. 617. Ex parte Lacey, ib. 625. 
 and the cases cited in the notes. Ex parte James, 8 Ves. 337. 
 Coles V. Trecotliick, 9 Ves. 234. Ex parte Bennett, 10 Ves. 381. 
 Morse v. Royal, 12 Ves. 355. Lowther v. Lord Lowther, 13 Ves. 
 95. Cane v. Lord Allen, 2 Dow. 289. Attorney-general v. Lord 
 Dudley, Coop, 146. Downes v. Grazebrook, 3 Meriv. 200. which 
 have overruled the doctrine in Whichcote r. Lawrence, 3 Ves-. 
 740. and Ex-parle Reynolds, 5 Ves. 707, that such sale shall only 
 be set a>;ide where an advantage has been made by the trustee. 
 
 (e) Duke of Hamilton v. Lord Mohun, 1 P. W. 118. Hylton 
 V. Hylton, 2 Ves. 547. Pierce v. Waring, cit. ib. Hatch v. Hatch, 
 9 Ves. 292. Dawson r. Masscy, 1 Ba. & Be. 219.
 
 14 TO STAY PROCEEDINGS AT LAW. 
 
 In tuhat cases his attorney (a) ; and absolutely rescinds sales by 
 ^^"" ^ ' cxj)cctant lieirs of their expectancies (b), or sailors 
 of their prize-money (c). Upon the same prin- 
 ciple a court of equity preserves with extreme 
 strictness tlie riglit of redemj)tion to a mortgagor, 
 from being fettered by any agreement with the 
 mortgagee (d). 
 ITndeiiiaiul Here may be ranked the numerous cases of re- 
 agiccmens. jj^f against underhand agreements to the prejudice 
 of third persons : as frauds upon marriage articles (e) ; 
 
 (a) Proof V. Hines, For. 111. Walmsley v. Booth, 2 Atk. 25. 
 Drapers' Company v. Davis, ib. 295. Saunderson v. Glass, ib. 296. 
 Oldham t;. Hand, 2 Ves. 259. Strachan v. Brander, 1 Eden, 303. 
 Willes V. Middleton, 1 Cox, 112. 4 Bro. P. C. Ed. Toml. 245. 
 Leigh V. Williams, and Kennet v. Greenwollers, cit. 3 Cox, P. W. 
 131. n. Kenney v. Browne, 3 Ridg. P. C. 462. Newman v. Payne, 
 4 Bro. C. C. 350. 2 Ves. jun. 199. Wood v. Downes, 18 Ves. 120. 
 Montesquieu v. Sandys, ib. 302. 
 
 (b) Twistleton v. Griffith, 1 P. W. 310. and cases there cited. 
 Coles V. Trecothick, 9 Ves. 234. Peacock v. Evans, 16 Ves. 512. 
 Gowland v. De Faria, 17 Ves. 20. except where by public auction. 
 Shelly V. Nash, 3 Mad. Rep. 232. 
 
 (c) Baldwin v. Rochfort, 1 Wils. 229. Taylour v. Rochford, 
 2 Ves. 281 . How v. Weldon, ib. 519. 
 
 (d) Newcomb v. Bonham, 1 Vern. 8. Howard v. Harris, ib. 33. 
 190. Eaton v. Greaves, ib. 138. Kilvington v. Gardner, ib. 192. 
 Willett V. Winnall, ib. 488. Bowen v. Edwards, 1 Ch. Ca. 222. 
 Jason V. Eyres, 2 Ch. Ca. 33. Manlove v. Ball, 2 Vern. 84. 
 Jennings v. Ward, ib. 520. Croft v. Powell, Com. Rep. 603. 
 Spurgeon v. Collier, 1 Eden, 60. Vernon v. Bethell, 2 Eden, 110. 
 Seton V. Slade, 7 Ves. 273. 
 
 (e) Arundel v. Trevillian, I Ch. Rep. 47. Howard v. Hooker, 
 2 Ch. Rep. 42. Peyton v. Bladwell, 1 Vern. 240. Redman r. 
 Redinan, ib. 348. Drury v. Hooke, ib. 412. Gale v. Lindo, ib. 
 475. 2 Freem. 101. Key v. Bradshaw, 2 Vern. 102. Smith v. 
 Bruning, ib. 392. Scribblehill v. Brett, ib. 446. Lamlee v. 
 Hannam, ib. 499. Kcat v. Allen, ib. 588. Duke of Hamilton r. 
 Lord Mohun, 1 P. W. 118. Turton v. Benson, ib. 498, 2 Vern.
 
 TO STAY PROCEEDINGS AT LAW. 15 
 
 frauds upon the marital right (r/) ; bonds given to In xvhnt cases 
 marry the obligor upon the death of a parent, or per- ^^ " ^ ' 
 son standing in loco parentis, from whom the obligee 
 has expectations, and from whom the transaction is 
 to be kept concealed(^) ; and secret agreements 
 made by creditors with their debtor, to represent 
 their debts less than they are, in order to deceive 
 third persons (c). Thus where the object of an 
 agreement was that a sum of money should be given 
 in order to prevent an opposition to a bill depending 
 in parliament which was to be concealed from the 
 legislature, such agreement was considered as a 
 
 764. Free. Cas. 522. Roberts u. Roberts, 3 P.W. 66. Cole v. 
 Gibson, 1 Ves. 503. Woodhouse v. Shepley, 2 Atk. 535. Blan- 
 chet V. Foster, 2 Ves. 264. Fitcairne v. Ogbourne, ib. 375. Smith 
 V. Aykwell, 3 Atk. 566. Neville v. Wilkinson, 1 Bro. C. C. 543. 
 Thompson v. Harrison, 1 Cox, 344, Scott v. Scott, ib. 366. 
 Falmer v. Neave, 11 Ves. 165. 
 
 (a) Though considerable doubt was thrown upon this by Mr. 
 Justice BuUer in Lady Strathmore v. Bowes, 2 Bro. C. C. 345. 
 where he seemed to doubt the general doctrine, yet it was laid 
 down by Lord Rosslyn in Ball v. Montgomery, 2 Ves. jun. 194. 
 and has been repeatedly determined, that a settlement made by a 
 woman before marriage, without the privity of the husband, is a fraud 
 upon the marital right. Hunt v. Matthews., 1 Vern. 408, Carlton 
 V. Earl of Dorset, 2 Vern. 17. Howard v. Hooker, 2 Ch. Rep. 81 . 
 Cotton V. King, 2 P. W. 360. Mose. 259. Foulson v. Wellington, 
 
 2 P. W. 533. Thomas v, Williams, Mose. 177. 
 
 {b) W'oodhouse v. Shepley, 2 Atk. 535. Cock v. Richards, 
 10 Ves. 429. 
 
 (c) Child V. Dandridge, 2 Vern. 71. Small v. Brackley, ib.602, 
 Spurrel v. Spiller, 1 Atk. 108. Neville v. Wilkinson, 1 Bro. C. C. 
 543. Constantein v. Blache, 1 Cox. 227. Eastabrook v. Scott, 
 
 3 Ves. 456. Cecil v. Flaistow, 1 Anst. 202. Mawson v. Stock. 
 6 Ves. 202. Ex parte Sadler, 15 Ves. 52. Dalbiac v. Dalbiac, 
 16 Ves. 1 25. Ex parte Carr, 3 V. and B. 1 1 1 .
 
 16 '10 STAY PROCEEDINGS AT LAW. 
 
 Jnxvhai cases fmutl upoii tlic legislature, and within the principle 
 ^"^" oCthe above cases(«). And it has been frequently 
 
 decided, that although, where partners dissolve the 
 partnership, divide the property, assign it by deed, 
 and deliver possession, the joint property thereby 
 becomes the separate })roperty of the party re- 
 maining; yet if it appear that the partners have 
 entered into this contract for the purpose of 
 defraudhig the joint creditors, by enabling one 
 party to withdraw property out of their reach; 
 such contract is invalid (Z*). Here also may be 
 noticed those transactions which are in fraud of 
 acts of parliament or other legal provisions (c), 
 
 (a) Vauxhall Bridge Company v. Earl Spencer, 2 Mad. Rep. S5(^. 
 
 (b) Anderson v. Maltby, 4 Bro. C. C. 422. 2 Ves. jun. 244. 
 Ex parte Ruffin, 6 Ves. 119. Ex parte Fell, 10 Ves. 347. Ex 
 parte Williams, 1 1 Ves. 3. Ex parte Peake, 1 Mad, Rep. 353. 
 Ex parte Harris, ib. 583. Ex paHe Rowlandson, 1 Rose, 416. 
 
 (c) Frauds upon the laio of forfeiture. Chaplin u. Chaplin, 
 3 P. W. 233. Duke of Bedford v. Coke, 2 Ves. 117. Young v. 
 Peachy, 2 Atk. 258. Carte v. Carte, 3 Atk. 180. Amb. 32.^ 
 XJpon the restraining statutes. Dean &c. of Windsor v, Perwin, 
 Moor, 789. — Upon the usury laivs. Lawley v. Hooper, 3 Atk. 
 278. Barker v. Vansommer, 1 Bro. C. C. 149. Browne v. 
 O'Dea, 1 Sch, & Lef. 115. Drew v. Power, ib. 182. Molloy 
 V. Irvin, ib. SIO.— Upon the bankrupt latvs. Ex p)arte Hill, 1 
 Cox, 300. Ex parte Cooke, 8 Ves. 353. Ex j^arte Murphy, I 
 Sch. Sc Lef 44. Ex parte Meaghan, ib. 179. Higginbotham 
 V. Holme, 19 Ves. 88.— L//;o» the registry act. Curtis v. Perry, 
 1 Ves. 739. Osborne v. Williams, 18 Ves. 379. Battersby v. 
 Smyth, 3 Mad. Rep. 110. — Upon the revenue latvs. Vicars v. 
 Attorney-general, 6 Bro. P. C. Ed. Toml. 491.— Upon the mortmain 
 act. Adlington T?. Cann, 1 Atk. 141. Boson ?j. Statham, 1 Cox, 
 17. 1 Eden, 508. Edwards v. Pike, 1 Eden, 267. Muckleston 
 V. Brown, 6 Ves. 52. Stickland v. Aldridge, 9 Ves. 517. Paine 
 f. Hall, 18 Ves. 475 — Upon the custom of London. Heron v. 
 Heron, 2 Atk, 160.
 
 TO STAY PROCEEDINGS AT LAW. 17 
 
 frauds upon powers (r/), and the cases in which a Imvlnt cases 
 bond given to secure one object, is oppressively used ^^"" ^ 
 to compel another (/;). 
 
 Though courts of law have a concurrent juris- Discovery, 
 diction with courts of equity in determining upon 
 the legality of the consideration of an instrument, 
 yet it frequently happens that its illegality can 
 only be proved through a court of equity, from the 
 admission of the defendant, or the examination of 
 witnesses residing abroad. As relief is accordingly 
 given in numerous cases of bills or securities, vo- 
 luntary, and therefore fraudulent as against cre- 
 ditors (c), or affected with usury (^); gaming (e), 
 
 (a) Lane v. Page, Amb. 233. Aleyn v. Belchier, 1 Eden, 
 132. Lord Hinchinbroke v. Seymour, 1 Bro. C. C. 394-. 
 Palmer v. Wheeler, 2 Ba. & Be. 18. Daubeny v. Cockburn, 
 
 1 Meriv. 626. 
 
 {b) Durston v. Sandys, 1 Vern. 411. 2 Ch. Ca. 186. 2 Ch. Rep. 
 398. Hawkins v. Turner, Pr. Can. .513, Peele v. Capel, 1 Stra. 
 534. Hillyard v. Stapleton, 1 Eq. Ab. 86. Grey v. Hesketh, 
 Amb. 268. Roy v. Duke of Beaufort, 2 Atk. 190. 
 
 (c) Parry v. Carwarden, 2 Dick. 544. Evelyn v. Templar, 2 
 Bro. C. C. 148. Pulvertoft v. Pulvertoft, 18 Ves. 84. Buckle v. 
 Mitchell, 18 Ves. 100. Metcalf v. Pulvertoft, 1 V. & B. 180. 
 But that a voluntary conveyance is binding upon the settlor him- 
 self, vide Burke v. Dawson, Sugd. V. & P. 569. Johnson v. Legard, 
 ib. 570. 3 Mad. Rep. 273. Smith v. Garland, 2 Meriv. 123. Whe- 
 ther the consideration of marriage extends to collateral relations 
 of the settlor, vide Hale v. Lamb, 2 Eden, 292. Fairfield v. Birch, 
 Sugd. V. P. 560. & Appendix, No. 23. Clayton v. Lord Grey de 
 Wilton, 3 Mad. Rep. 302. Johnson v. Legard, sup. Sutton r. 
 Chetwynd, 3 Meriv. 249. Cormick v. Trapaud, 6 Dow. 60. 
 
 (d) Ante, p. 16, Note CdJ. 
 
 {e) Blackwell v. Redman, 1 Ch. Rep. 48. Humphreys v. Rigby, 
 
 2 Freem. 223. Rawden v. Shadwell, Anib. 2G9. Graves v. Houl- 
 ditch, 2 Price, 147. 
 
 C
 
 18 TO STAY TROCEEDINCS AT LAW. 
 
 Tn ivJiat cases stock-johh'mg (a), illegal insurance (/»), simony (c), 
 
 f^^^J champerty (rf), compounding felony (e), marriage (y), 
 
 or place brokage (^g") ; of bonds to secure future co- 
 habitation (//), or instruments containing conditions 
 contrary to good morals or domestic peace (z) : so if 
 a party is suing upon an instrument of this nature 
 at law, a court of equity will, if necessary, grant an 
 injunction till a discovery has been obtained from 
 
 (n) Bancroft v. Wentworth, 3 Bro. C. C. 11. Bullock v. Richard- 
 son, 11 Ves. 373. 
 
 (b) Ex-parte Mather, 3 "Ves. 373. Knowles v. Haughton, 
 11 Ves. 168. overruling Watts v. Brooks, 3 Ves. 612. 
 
 (c) Lord Kircudbright v. Lady Kircudbright, 8 Ves. 51. 
 
 (rf) Skapholme v. Hart, Finch. 477. Powell v. Knowler, 2 Atk. 
 22i. Strachan v. Brander, 1 Eden, 303. Wallis v. Duke of Port- 
 land, 3 Ves. 494-. Stevens v. Bagwell, 15 Ves. 138. Wood v. 
 Downes, 18 Ves. 120. 
 
 (e) Johnson v. Ogilby, 3 P. W. 279. Claridge *. Hoare, 14 
 Ves. 59. 
 
 {/) Arundel v. Trevillian, 1 Ch. Rep. 47. Drury v. Hooke, 
 1 Vern. 412. Key v. Bradshaw, 2 Vern. 102. Smith v. Bruning, 
 ib. 392. Scribblehill v. Brett, ib. 446. Duke of Hamilton v. Lord 
 Mohun, 1 P. W. 118. Smith v. Aykwell, 3 Atk. 566. Cole v. 
 Gibson. 1 Ves. 503. 
 
 (o-) Law V. Law, 3 P. W. 391. For. 140. Bellamy v. Burrow, 
 For. 97. Debenham v. Ox, 1 Ves. 276. Morris v. M'Cullock, 
 Amb. 232. 2 Eden, 190. Hanington v. Du Chatel, 1 Bro. C. C. 
 124. 2 Dick, 581. HartwelU. Hartwell, 4 Ves. 811. Thompson 
 u. Thompson, 7 Ves. 470. Osborne v. Williams, 18 Ves. 379. 
 
 (//) Whaley v. Norton, 1 Vern. 483. Priest v. Parrott, 2 Ves. 
 160. Lady Cox's case, 3 P. W. 339. Hill v. Spencer, Amb. 641. 
 Franco v. Bolton, 3 Ves. 368. Not tiohere it is given for past co- 
 habitation. INIarchioness of Annandale v. Harris, 2 P. W, 432. 
 Spicer v. Hay ward, Pr. Can. 114. Cray v. Rooke, For. 153. 
 Clarke v. Periam, 2 Atk. 333. Gray v. Mathias, 5 Ves. 286. 
 
 (x) Tenant v. Braie, Toth. 78. Traiton v. Traiton, 1 Vern. 413. 
 Brown V. Peck, 1 Eden, 1 10.
 
 TO STAY PROCEEDINGS AT LAW. 19 
 
 his answer, or till witnesses residing abroad have In tvhat cases 
 
 , . , praiited. 
 
 been examined. 
 
 A question frequently arises in these cases, and one Relief -iven 
 
 which has not yet been completely and satisfactorily par'jty^'^'^ 
 
 discussed, viz. to what extent, a court of equity will Porticeps 
 
 . . . ... Criminis. 
 
 give its assistance to one, who is a particeps crimmis 
 to an illegal transaction. The maxim in pari delicto 
 melior est conditio possidentis^ though frequently 
 adopted, has been almost as frequently departed 
 from : and Lord Thurlow on one occasion declared 
 that in all cases where money was paid for an un- 
 lawful purpose, the party, though particeps crimi- 
 niSf might recover j and that the reason was, that if 
 courts of justice meant to prevent the perpetration 
 of crimes, it must be, not by allowing a person who 
 has got possession to remain in possession, but by 
 putting the parties back to the state in which they 
 were before («). 
 
 In cases of relief upon grounds of public policy 
 the objection that the plaintiff is particeps criminis 
 never prevails, the public interest requiring that 
 relief should be given, and accordingly it is given 
 to the public, through the party complaining (J)), 
 And the cases are numerous in which, money paid for 
 an illegal purpose, has been decreed to be repaid (c). 
 
 There is, however, another class of cases, the 
 principle of which seems recognised in the Treatise 
 
 (a) 1 Bro. C. C. 548. 
 
 {b) 9 Ves. 298. 
 
 (c) Goldsmith v. Bruning, 1 Eq. Ab. 89. Morris v. M'Cullock, 
 2 Eden, 190, Amb. 432. Neville v. Wilkinson, 1 Bro. C C. 543. 
 Osborne t>. Williams, 18 Ves. 379. 
 
 c2
 
 QO TO STAY PROCEEDINGS AT LAW. 
 
 Inrvhatcasm on Eqiiity(^), in whicli relief has been given upon a 
 ^"" similar j)rinci|)le, tliough great doubt may be enter- 
 tained as to the correctness of its application, viz. 
 where a party does not come to be relieved from 
 the effect of an illegal transaction ; but to obtain, 
 through the assistance of a court of equity, an 
 account of the profits of it. Thus where the 
 plaintiff had drawn a prize of X'lOOO in an il- 
 legal lottery set up by the defendant, it was ob- 
 jected that there could be no relief in equity, the 
 plaintiff and defendant being equal offenders, as two 
 pirates or gamesters (^); Lord Harcourt, however, 
 thought the offences not equal, and that the act of 
 parliament ought not to shelter the defendant from 
 giving satisfaction. Accordingly, as the lot was 
 made up of two houses, valued at <£800, and a silver 
 cistern, valued at c£200, he decreed the houses should 
 be taken at that value, though they wxre only worth 
 ^600, because the adventurers might have resorted 
 to them, and seen whether they were of that value 
 or not ; but as to the cistern, that never having 
 been bought by the defendant, it was decreed that 
 he should pay the c^200(c). Lord Northington 
 
 (a) Lib. 1. c. 4. s. 6. 
 
 (6) Mention is made in several books (1 Eden 381. App. to 
 Cliftbrd's report of the Southwark Election. European Magazine, 
 Vol. 2. 360, 2 Evans translation of Pothier 3.) of a bill by a 
 highwayman against his companion for an account of his share of 
 the plunder. The bill, it is said, having been reported scandalous 
 and impertinent, was dismissed, the solicitor fined 50/. and the 
 counsel who signed it ordered to pay the costs. This account 
 however was not supported upon a search at the office. 
 
 (c) Mince v. Peters, Harg. MSS. No. 112. p. m.
 
 TO STAY PROCEEDINGS AT LAW. 21 
 
 likewise upon a bill alleging an agreement to In ivhat cases 
 
 carry on the game of E O, and a contribution for ^_ '_ J 
 
 that purpose, was of opinion that relief ought to be 
 given, and directed an issue, to try, whether the 
 alleged agreement had been entered into (r/). So 
 also Lord Rosslyn was of opinion, that both smug- 
 gling transactions, and illegal dealings in stock, 
 might be brought into account ; and actually de- 
 creed an account of the profits of a partnership to 
 be jointly concerned in illegal insurances (/>). These 
 determinations are extremely questionable, and 
 the last has been expressly overruled, by 8ir AV. 
 Grant (c). 
 
 The doctrine upon the subject of relief from penal- Relief 
 ties has thus been stated by Lord Thurlow: "Where J-^ime and 
 a penalty is inserted merely to secure the enjoyment penalties. 
 of a collateral object, the enjoyment of the object is 
 considered as the principal intent of the deed, and 
 the penalty only is accessional, and to secure the 
 damage really incurred (c?)." But where the parties, 
 instead of securing the performance of the agree- 
 ment by a penalty, have lixed upon a certain sum 
 by way of liquidated damages, to be paid in the 
 event of the non-performance of the agreement, a 
 court of equity (except in certain cases of waste, 
 which will be noticed hereafter), refuses to interfere 
 in restraining the recovery of such damages (^c). 
 
 (a) Nash v. Ash, 1 Eden, 378, 
 (5) WaUs V. Bullas, 3 Ves. 612. 
 
 (c) Knowles v. Haughton, 11 Ves, 168, 
 
 (d) Sloman v. Walter, 1 Bro. C.C. 419. 
 
 (e) A difiiculty frequently occurs in these cuse.-i, in deleiuiiaing
 
 €2 TO STAY PROCEEDINGS AT LAW. 
 
 Inxvhntcn^cs Ilpon tlicse principles, courts of equity inter- 
 *''^" ])osc to restrain proceedings at law for the re- 
 covery of ])cnaltics {a). But where a forfeiture had 
 happened under a by-law of a corporation, which 
 provided that members should receive notice of de- 
 fault in paying a call, and incur the forfeiture by 
 non-payment ten days after the notice sent. Sir W. 
 Grant refused to relieve, though the lapse arose 
 from ignorance of the call, from accidental circum- 
 stances, and absence from town when the notice 
 was sent. He mentioned a case in Ireland, of a 
 person who, after having paid some instalments on 
 a lease, neglected to make a further payment, and 
 forfeited the instalments he had paid(^). And though 
 
 whether the sum specified in the agreement should be considered 
 in the nature of hquidated damages, as in Ponsonby v. Adams, 
 6 Bro. P. C. 417. Ed. Toml. vol. 2. 431. Rolfe v. Peterson, 
 ib. 470. Roy v. Duke of Beaufort, 2 Atk. 190. Lowe v. Peers, 
 4 Burr. 2229. Fletcher v. Dyche, 2 T. R. 52. and semble. Cock v. 
 Richards, 10 Ves. 429. Barton v. Glover, 1 Holt, 43. Or penalty, 
 as in Sloman v. Walter, 1 Bro. C. C. 418. Hardy v. Martin, 1 
 Cox, 26. Astley v. Weldon, 2 B. & P. 346. Smith v. Dickenson, 
 3 B. & P. 630. Harrison v. Wright, 13 East, 343. Wllbeam v. 
 Ashton, 1 Camp. 78. It is difficult to lay down any general 
 principle upon this subject; it is, however, clear, that if a certain 
 damage less than the sum, is made payable upon the face of the 
 same instrument, it should then be construed to be a penalty: 
 so also where articles contain covenants for the performance of 
 several things, and then one large sum is stated at the end, to be 
 paid upon breach of performance ; but the argument, that if the 
 sum would be disproportionately large as liquidated damages, it 
 should be taken to be a penalty, though according to the natural 
 construction of the words it should seem to be damages, has been 
 exploded. 
 
 (a) 1 Eonb. 5th Ed. 153. 
 
 <6) Sparks v. Liverpool Water-works Company, 13 Ves. 428.
 
 TO STAY PROCEEDINGS AT LAW. ^-C 
 
 relief has sometimes been given against the for- In what cast x 
 
 feiture of a covenant for a renewal («), which in ^ \ 
 
 Ireland formed a distinct head of local equity (b\ > 
 
 yet the inclination of the courts is to the contrary, / 
 
 unless the right has been forfeited in consequence / 
 
 of fraud, accident, mistake, or any similar equity (c). 
 
 A common instance of this species of relief, is torfeiture 
 that which is given against a clause of re-entry for mentofici- 
 non-payment of rent. This has been a ground of 
 equitable interference from the earliest times, and 
 there has been a parliamentary recognition of the 
 doctrine by the st. 4 Geo. 2. c. 28. s. 2 & 3. which, 
 limiting the time within which such relief is to be 
 given to six months, permits the tenant to pay into 
 court at any time before the trial of an ejectment, 
 
 There is a case in the Hargrave MSS. in which Lord Harcourt 
 relieved a member of a benefit society against a forfeiture incurred 
 by neglecting to pay the weekly instalments ; but the reasoning 
 of Sir W. Grant is so conclusive and satisfactory, that it is probable, 
 if the question should ever be agitated again, that his decision 
 would be adhered to. 
 
 (a) Rawstone v. Bentley, 4 Bro. C.C. 415. 
 
 {b) O'Neil V. Jones, 1 Ridg. 170. Kane v. Hamilton, ib. 150. 
 Bateman v. Murray, ib, 187. Boyle v. Lysaght, ib. 184. S. C. 
 Vern. & Scriv. 135. Magrath v. Lord Muskerry, ib. 166. S. C. 
 1 Ridgw. 463. Jackson v. Saunders, 1 Sch. & Lef. 443. 2 Dow. 
 437. Lennon v. Napper, 2 Sch. & Lef. 682. Magrane v. Archbold, 
 1 Dow. 109. Earl of Mountnorris r. White, 2 ib. 459. Barrett v. 
 Burke, 5 ib. 1. Keating v. Sparrow, 1 Ba. & Be. 367. Jessop v. 
 King, 2 ib. 81. Barrett v. Pearson, ib. 189. 
 
 (c) Allen V. Hilton, 1 Fonb. 452, 5th Ed. Bayley v. Corpora- 
 tion of Leominster, 3 Bro. C. C. 529. Baynham v. Guy's Hos- 
 pital, 3 Ves. 295. Eaton v. Lyon, ib. 690. City of London v. 
 Mitford, ,14 Ves. 41.
 
 LM' to stay PllOCEEDlNGS AT LAW. 
 
 Li iv/inf cares tliG iiri'cars of I'cnt and costs, and provides that all 
 
 *^" further proceedings shall thereupon cease. 
 
 Formerly, when only one breach could be assigned, 
 and a verdict had been found for the penalty, if that 
 breach was the non-payment of rent, and the plaintiff 
 at law, upon a bill filed to be relieved against it, 
 alleged tliat there were other breaches, an issue was 
 directed to ascertain whether there had been a breach 
 of any of those covenants again.st which a court of 
 equity will not relieve. This circuitous course of 
 proceeding, it is said, attracted the attention of the 
 legislature, and occasioned the statute of 8 & 9 
 W. 3. c. 11. by which a plaintiff is allowed to assign as 
 many breaches as he pleases, and the jury to assess 
 separate damages on such as are proved {a). In 
 cases of this nature if the form of the declaration be 
 such, that the breaches upon which the plaintiff in- 
 tends to rely do not appear, the defendant may 
 obtain, by a judge's order, a particular of them. 
 But, though this particular precludes the plaintiff 
 from proceeding upon any breach not contained in 
 it, yet it does not impose upon him the necessity, 
 after proving one breach, to proceed upon the 
 others (/;). The consequence is, that where the 
 breach is the non-payment of rent, a court of equity 
 compels a landlord to go on and prove some other 
 breach, or else relieves from the forfeiture (c). 
 Thus, where a tenant, having omitted to move for a 
 particular of the breaches, suffered judgment by de- 
 
 («) 2 Price, 219. 
 
 (b) 10 Ves. 70. 3 V. .1- B. 24-. 
 
 (f) 3 V. & B. 30. Divvis V. West, 12 Ves. 475.
 
 TO STAY PUOCEEDINGS AT LAW. 25 
 
 fault, and then filed a bill, alleging that he had In^hat cases 
 
 committed no other breach of the covenant, except " ,^ ' 
 
 the non-payment of rent, an issue was directed (a). 
 But in anotlier case, where there had been a verdict 
 upon a breach as to the mode of cultivation ; and 
 the landlord by his answer stated, that he had been 
 prepared at the trial to prove every breach of co- 
 venant of which the tenant might have been guilty, 
 and could have proved breaches against which the 
 court would not relieve ; that he was going into 
 evidence witli that view, but that the judge at the 
 trial interfered upon the first breach as sufficient, 
 Lord Eldon, without determining whether relief 
 could be given upon the breach on which the land- 
 lord did recover, observed, that if he granted an in- 
 junction, he should merely send the parties to try 
 other breaches, of which, if the answer was true, 
 the defendant had abundant proof, and accordingly 
 refused it (/*). 
 
 This relief is granted upon the principle that com- Forfeiture 
 
 ,,,,,, 1 . /• ^01' breach of 
 
 pensation is made to the landlord by the payment oi covenants 
 the rent with interest ; a doctrine contradicted by '^ repair, &c. 
 general experience, and often found fault with as im- 
 perfect and unjust (c). Lord Northington appears, 
 by analogy to it, to have been of opinion, that the 
 court might relieve, where a tenant had committed a 
 forfeiture by cutting down timber (r/). It is, how- 
 ever, scarcely necessary to remark, how extremely 
 inadequate pecuniary compensation must generally ' 
 
 (a) Wadman v. Calcraft, 10 Ves. 67. 
 
 {b) Lovat V. Lord Ranelagh, 3 V. & B. 21. 
 
 (c) 16 Ves. 405. 18 Ves. 61. 2 Price, 216. 19 Ves. 14-0. 
 
 - (J) Northcote v. Duke, 2 Eden, 322. S. C. Anib. 511.
 
 2G TO STAY rilOCEEDINGS AT LAW. 
 
 In xvfiat cases be in siich a casc ; and, it is probable, if the question 
 
 frranted. . , • i i i . ^ 
 
 IS ever inatiircly considerecl, that a contrary deter- 
 mination will be adopted. 
 
 But, where it is clear that the covenant is of such 
 a nature that a court of equity cannot make a com- 
 pensation for the breach of it ; as in breaches 
 of covenants not to assign "without licence (c), or to 
 keep the premises insured (b), relief will not be 
 given against the penalty. Considerable discus- 
 sion also has taken place how far the court 
 would relieve against a forfeiture for breach of a 
 covenant to repair. In the case of Sanders t;. Pope (c), 
 Lord Erskine, upon the authority of a determina- 
 tion of Lord Macclesfield (^), expressed a strong 
 opinion in favour of the equitable interposition ; but 
 the doctrine, after full and elaborate discussion, has 
 been established to the contrary (e). The same de- 
 termination would consequently be made with re- 
 spect to the breach of a covenant to build; though 
 the authorities are conflicting, as to the power to 
 decree a specific performance in such case (J"), 
 Injunctions As courts of equity on the one hand interpose to 
 of snecific"'^^ restrain the recovery of penalties, the principles of 
 performance, equal justice require on the other, that they should 
 enforce the specific performance of the act agreed 
 
 (a) Wafer t). Mocatto, 1 Salk. 156. 2 Vern. 594. 1 Eq. Ab. 108. 
 {h) Rolfe V. Harris, 2 Price, 206. n. Reynolds v. Pitt, ib. 212. 
 S. C. 19 Ves. 134-. White v. Warner, 2 Meriv. 459. 
 
 (c) 12 Ves. 282. 
 
 (d) Hack V. Leonard, 9 Mod. 91. 
 
 (e) Hill V. Barclay, 16 Ves. 4-02. 18 Ves. 56. Bracebridge v. 
 Buckley, 2 Price, 200. Sed vide Hannam v. South London Water- 
 works Company, 2 Meriv. 67. n. 
 
 (/) There are two instances of specific performance decreed of
 
 TO STAY PROCEEDINGS AT LAW. ^ 
 
 to be done, or restrain from the doing of that which In ivhat cases 
 
 11 11 ^ \ granted. 
 
 it was agreed should not be done {a). 
 
 Injimctions in the nature of Specific Performancey 
 are usually of two kinds. 1st. Where granted on 
 the application of the landlord, to restrain the te- 
 nant, from a violation of some covenant contained 
 in his lease : the cases upon which will be con- 
 sidered in a subsequent part of this treatise. 2dly. 
 Where injunctions are granted, upon the applica- 
 tion of a tenant holding under an agreement for 
 a lease, to restrain the landlord from proceeding 
 against him in ejectment. This relief is granted, 
 upon the common equity, of the tenant being en- 
 titled to the specific performance of the agreement, 
 by the execution of a lease. If, however, it appears 
 from the answer, that the tenant is not entitled to a de- 
 cree for a specific performance, the injunction will be 
 either refused, or granted only upon his undertaking 
 togivejudgmentin the ejectment, to go to commission 
 and set down tlie cause for the ensuing term; and 
 he is at the same time required to pay the rent into 
 court. The latter course was adopted in a case where 
 the answer stated the insolvency of the tenant, and 
 various breaches of the agreement during five years 
 
 covenants to rebuild, City of London v. Nash, 3 Atk. 515. 1 Ves, 
 12. Allen v. Harding, 2 Eq. Ab. 17. and in Moseley v. Virgin, 
 3 Ves. I SI-. Lord Rosslyn stated, that a specific performance might 
 be decreed. Lords Thurlow and Kcnyon, on the other hand, 
 have pronounced a contrary opinion. Errington v, Aynesley, 
 2 Bro. C. C. 81-3. Lucas v. Comerford, 3 Bro. C. C. 166. 1 Ves. 
 jun. 235. That a covenant to repair cannot be specifically per- 
 formed, ride Rayner v. Stone, 2 Eden, 128. Flint v. Brandon, 
 8 Ves. 159. 
 
 (a) 1 Eonb. 5th Ed. 153.
 
 28 TO STAY PIIOCKEDINGS AT LAW. 
 
 //I niArt/cflsM possession (r/). Ill a subsequent case the injunc- 
 
 ^^^" tion was refused, upon the ground of insolvency in 
 
 the tenant, and tlie fact of his liaving injured the 
 premises (i^). And it has been repeatedly stated by 
 Lord Eldon, that if an agreement contains covenants, 
 which must be inserted in the lease if the agreement 
 be specifically performed ; if they are of that nature 
 that a court of equity will not relieve against a 
 forfeiture for the breach of them, and the tenant 
 has committed breaches, an injunction will not 
 be granted (c). It would indeed be nugatory to 
 compel the execution of a lease, which the les- 
 sor might immediately determine by an ejectment 
 for breach of a covenant, against which no re- 
 lief could be had in equity. It appears also, that 
 even if the agreement contained no clause of re- 
 entry, yet if the court saw a gross case of waste, 
 or of breaches of covenants which could not well be 
 indemnified at law, that it would refuse to inter- 
 pose {d). But, on the other hand, if the landlord 
 has done any act which would amount to a waiver 
 of the forfeiture, the court decreeing a specific per- 
 formance, would not allow him to take advantage of 
 the fact, that the lease bore date before it was actually 
 made ; and exclude the tenant from the benefit of 
 those circumstances, which constitute a waiver of 
 the forfeiture at law(e). 
 Account. Another ordinary head of equitable jurisdiction is 
 
 (a) Boardman v. Mostyn, 6 Ves. 467. 
 
 (b) Buckland v. Hall, 8 Ves. 93. 
 
 (c) 1 V. & B. 72. 3 V. & B. 30. 
 
 (d) Gourlay v. Duke of Somerset, 1 V. &- B. 6S. 
 {e) lb. 73.
 
 TO STAY PROCEEDINGS AT LAW. 2^ 
 
 that of Accounty upon which courts of law being In -what cases 
 unable to afford so complete a remedy as courts of ^^"" ^ 
 equity, a concurrent, and in some respects an exclu- 
 sive, jurisdiction has been assumed by the latter {a). 
 Thus wherever it appears from the nature of the 
 transactions, tliat a plaintiff is entitled to an ac- 
 count, the court considers this as a sufficient ground 
 for an injunction to restrain the defendant from pro- 
 ceeding in a claim, the correctness of which cannot 
 be ascertained, till the account has been taken : as 
 in a case where there had been dealings between 
 a landlord and tenant, so extensive as to produce an 
 account too complicated to be taken at law, and 
 the landlord had brought an ejectment for non- 
 payment of rent, it was holden, that the tenant 
 might file a bill, before judgment at law, for an 
 account, and to have the balance applied to the 
 rent claimed to be due, without bringing in the rent 
 under the statute [b). But where the subject is 
 merely matter of set off, and capable of proof at law, 
 a bill for an account will not lie (c) ; and accord- 
 ingly in a recent case, where a bill by a tenant to 
 restrain proceedings at law for rent, alleged an 
 agreement, under which the landlord was indebted 
 more than the amount of the rent ; this being merely 
 a legal set off, a demurrer was allowed (r/). The 
 court of Exchequer, however, have determined, that 
 a bill for an account and an injunction, was not de- 
 
 (a) Ex parte Bax, 2 Ves. 388. Bateman v. Willoe, 1 Sch. & 
 Lef. 205. Corporation of Carlisle v. Wilson, 12 Ves. 279. 
 
 (b) O'Connor v. Spaight, 1 Sch. & Lef. 305. 
 
 (c) Dinwiddie v. Bailey, 6 Ves. 136. 
 
 ((/) Townrow v. Benson, 3 Madd. Rep. 20^.
 
 so TO STy\Y rUOCEEDINGS AT LAW. 
 
 In xvhnt cases miirrable, on the ground that the plaintiff in equity, 
 
 ^^ " ^' ' stating a balance to have been acknowledged in his 
 
 favour, might have pleaded it at law on notice of 
 set off: and it appears to have been admitted, that 
 it is sufficient for the purpose of obtaining an in- 
 junction, that the plaintiff should state in his bill 
 and affidavit, that an unsettled account subsists be- 
 tween the parties, and that the defendant would be 
 found indebted to him on such account, in a greater 
 sum than he is proceeding for (a). 
 
 The following question, at one time caused con- 
 siderable difficulty J viz. whether, where there were 
 partners, and a separate creditor took a moiety of 
 the chattels in execution, he might call for a sale, 
 and take a moiety of the money arising from it ; or 
 whether the court would force upon him the whole 
 account of the partnership, and permit him only to 
 take that interest which the partner, his debtor, 
 would have been entitled to after the account ? This 
 subject, which had been noticed before (Z»), received 
 a very elaborate discussion in a case in the Ex- 
 chequer (c), where the doctrine, which has since been 
 adopted (c?), was laid down as follows : Whether the 
 partner for valuable consideration sells his interest 
 in the partnership, or his representatives take it 
 upon his death, or a creditor takes it in execution, 
 
 (a) Wattleworth v. Pitcher, 2 Price, 4:6. 
 
 {b) Richardson v. Gooding, 2 Vern. 293. West v. Skip, 1 Ves, 
 259. Fox V. Hanbury, Cowp. 44'5. Hankey v. Garrett, 3 Bro. 
 C. C. 457. 1 Ves. jun. 236. 
 
 (c) Taylor v. Field, 4 Ves. 396. 15 Ves. 559. n. 
 
 (d) Barker v. Goodair, 11 Ves. 78. Young v. Keighly, 15 Ves. 
 557. Dutton v. Morrison, 17 Ves. 193.
 
 TO STAY PROCEEDINGS AT LAW. 3J 
 
 or assignees under a commission, the party coming /« xi-hat cases 
 
 in the right of the partner, takes nothing more than "" 
 
 an interest in the partnership, which is not tangible, 
 
 and cannot be made available, except under an 
 
 account between the partnership and the partner. 
 
 The creditor will accordingly be restrained from 
 
 proceeding, until such account has been taken. 
 
 Another instance of interposition against the pro- injunctions 
 
 secution of a legal rio-ht, is, where there has been against cre- 
 
 (liters after 
 a decree for the administration of assets. The de- decree for 
 
 cree, is considered in equity, in the nature of a ^^^ ^'^™*" . 
 
 /■ "^ _ nistration of 
 
 judgment for all the creditors, and therefore, if sub- assets. 
 
 sequent to it, a bond creditor sues at law, the court, in 
 the assertion of its jurisdiction, will restrain him from 
 proceeding. Thefirstinstanceofthis,was a determina- 
 tion of Lord Talbot, which was afterwards affirmed 
 by the House of Lords on appeal («). This relief is 
 founded upon the circumstance, of the courts of law 
 not taking notice of a decree in equity, which there- 
 fore compels them, in support of their jurisdiction, 
 to establish their decrees by injunction. It was 
 at first only granted, upon bill filed against the 
 creditor praying an injunction; but an alteration 
 was introduced by Lord Rosslyn (b) (which though 
 disapproved of(c) has been sanctioned by subse- 
 quent practice), by which the court permits this 
 order, after notice given to the creditor, to be ob- 
 tained upon motion. It is granted either at the ap- 
 
 (a) Morrice v. The Bank of England, For. 217. affirmed on ap- 
 peal, 4 Bro. P. C. Ed. Toml. 287. 
 
 (b) Cleverley v. Cleverley, cit, 8 Ves. 521. 
 (r) 8 Ves. 520.
 
 32 TO STAY PROCEEDINGS AT LAW. 
 
 In what cases plication of the executor or administrator («), or of 
 
 the heir (b), or of anotlier creditor (c) j and the 
 
 court will extend the injunction to stay trial, 
 without the affidavits required in ordinary cases {clj. 
 But, if the executor has so pleaded, that the plain- 
 tiff at law, if he should falsify the plea, would be en- 
 titled to a judgment de bonis proprns[e'), or to a 
 judgment de bonis testatoris et si non de propriisy and 
 costs de bonis propriis {f)^ the court will not interpose. 
 In a case, however, where the executors had obtained 
 time to plead, and after the decree suffered judgment 
 to go by default. Lord Eldon granted the motion, 
 considering the executors suffering judgment to go 
 by default, to be nothing more than their saying that 
 they were ready to do, whatever a court of law or 
 equity might think proper (^•). 
 
 The ground of this jurisdiction, is, the circum- 
 stance of the court having taken the fund into its 
 own hands. As this can only be done by the opera- 
 tion of a decree, the court will in no instance inter- 
 
 (a) Morrice v. Bank of England, sup. Dougals u. Clay, 1 Dick. 
 393. Goate v. Fryer, 3 Bro. C, C. 23. 2 Cox, 201. Kenyon v. 
 Worthington, 2 Dick. 668. Paxton v. Douglas, 8 Ves. 520. 
 Terrewest v, Featherby, 2 Meriv. 480. Brook v. Skinner, ib. 
 
 481. n. 
 
 (fc) Martin v. Martin, I Ves. 211. 
 
 (c) Brooks V. Reynolds, 1 Bro. C. C. 183. 2 Dick. 603. Hard- 
 castle V. Chettle, 3 Bro. C. C. 163. Dyer v. Kearsley, 2 Meriy. 
 
 482. n. Cox v. King, ib. 
 
 {d) Goate v. Fryer, sup. Kenyon v. Worthington, sup. 
 
 (e) Brook u. Skinner, sup. 
 
 {/) Terrewest v. Featherby, sup. 
 
 {g) Dyer v. Kearsley, sup.
 
 TO STAY PROCEEDINGS AT LAW. 33 
 
 pose before decree (a) ; a mere decree for an account -^^ *^'^«' <^"-^^^ 
 
 of the demand of a creditor, and ot the personal 
 
 estate come to the hands of the executor, v.ith a 
 direction for payment out of the result of the ac- 
 count, is not a decree to prevent the executors from 
 paying a judgment : tliere must be a report ?LudJi?ial 
 decree upon it(b'). 
 
 If the action has been commenced before the bill 
 filed, the creditor will be at liberty, upon discon- 
 tinuing the action, to prove the costs as a debt under 
 the decree (c) ; and, imtil notice, tlie party seeking 
 to restrain the creditor, must pay the costs occasioned 
 by not having given notice, and suffering the cre- 
 ditor to go on : but q/}c7^ notice the creditor has no 
 costs (d). And, in one case, where a creditor who 
 had after a decree, brought in an affidavit of debts 
 before the Master, but upon notice being given that 
 it would be disputed, afterwards brought an action ; 
 he would have been made to pay the costs of the 
 application, had it not been for tlie laches of the 
 other party (<?). 
 
 As this practice is liable to considerable abuse, a 
 rule has been laid down, that an injunction shall 
 never be granted, w^ithout an affidavit by the executor 
 stating what money he has in his hands (jT), and Lord 
 Eldon has observed, that there is no ap})lication 
 
 (a) Anon. cit. 1 Ves. 213. Rush v. Higgs, 4 Ves, G3S. 
 (6) Perry v. Phellps, 10 Ves. 34. 
 (c) Goate v. Fryer, sup. 
 
 (rl) Prtxton v. Douglas, 8 Ves. .521. Dyer v. Kearsley, 2 Meriv. 
 •1.82. n. 
 
 ((?) Hardcastle v. Chettle, 4- Bro. C. C. 163. 
 (/) Cleverley v. Clcverley, sup. Paxton v, Douglas, il). 
 
 D
 
 34 TO STAY I'llOCRrcniNGS AT LAW. 
 
 Imv/iai cases ^vlli(•Il Ih' woiild sooiicr Hstcii to, tliaii tlijit of a 
 granted. j)crs()n com])laining of the least delay: "in these 
 cases,** his Lordship observed, " the phiintiff gene- 
 rally favours the defendant ; the practice is for a fa- 
 vourite creditor to file a bill, and snap a decree, and 
 one solicitor is concerned for all parties. But it is 
 his duty to make the defendant set out what he has 
 in his hands ; for if he becomes insolvent, and an 
 opportunity appears to have been lost, that solicitor 
 Avould stand in great peril before this court («)." 
 Injunction A court of equity also, in the necessary support 
 
 aganist ac- ^^ -^^^ iurisdiction, holds, that irregularity in the 
 
 tion tor UTC- J • i i 
 
 gularly exe. execution of its process, can only be punished by 
 *^)roc?ss^ot' itself, and accordingly will not suffer a person to be 
 the court of sued at law^ for irregularly executing its process (Z*). 
 Thus, where a plaintiff had improperly executed an 
 attachment. Lord Bathurst, upon the defendant af- 
 terwards bringing an action for false imprisonment, 
 granted an injunction, on the ground that the court 
 would punish its own officer (c). 
 rnjunction Where a plaintiff is proceeding both at law and in 
 
 h'^s^' j!'!f'!\'^ equity, the defendant may by a motion of course (r/), 
 to proceed compel him to elect in which court he will sue ; 
 m equi y. ^^^ .£. j^^ elects to proceed in equity, the proceed- 
 ings at law are, by that order, stayed by injunc- 
 
 (rt) 8 Ves. 522. 
 
 (/.) Bailey v. Devereux, 1 Vern. 269. 
 (c) May -!'. Hook, cit. 2 Dick. 619. 
 
 {d) Vaughan :>. Welsh, Mosc, 210. Anon. ib.SOk 2 Mada.2Sl. 
 1 Sch. & Lef. 176. Rees v. Parkinson, 2 Anstr. 497.
 
 TO STAY PROCEEDINGS AT LAW. 85 
 
 tion (a). The motion to put a plaintiff to his elec- -^« '^^'^'flf cases 
 
 ^ -^ . granted. 
 
 tion being without notice, if it is obtained upon a 
 
 false allei?ation that the suits are for the same matter, 
 and the plaintiff comes to discharge that order, if 
 the court has no difficulty in determining the matter, 
 it does not refer it to the Master ; if otherwise, the 
 reference is made to inquire whether they are not 
 for the same matter, and, in the mean time, all 
 proceedings are stayed in both. 
 
 The plaintiff cannot be put to his election be- 
 fore answer (b) ; nor, if exceptions are taken, can the 
 defendant move (c) ; and it is irregular in the defend- 
 ant to obtain the order before the time for filing ex- 
 ceptions is expired (<^). If a plea is put in the defend- 
 ant cannot move till the plea is decided upon (e) (/'). 
 
 (a) There is an old case, in which the plaintiff was restrained 
 from proceeding in his action at law without being put to his 
 election, on the ground of his having y^V.s^ proceeded in equity. 
 Bill V. Body, Cary, 70. 
 
 (b) Anon. 1 Ves. jun. 91. 
 
 (c) Tillotson V. Ganson, 1 Vern. 103. Jones v. Lord Strafford, 
 3 P. W. 90. 
 
 (d) Brown v. Poyntz, 3 Madd. Si. Anon, 3 P. W. 90. If he 
 elects to proceed at law the bill is dismissed with costs, ib. 
 
 {c) Ib. Boydu. Heinzelman, 1 V. & B. 381. Mouseley v. Bas- 
 nett, ib. 383. n. Mills v. Fry, 3 V. & B. 9. 
 
 (y) There was a practice formerly, which is said to have been 
 common in Lord Chancellor Bromley's time, but which was checked 
 by Lord Ellesmere, and finally abolished by Lord Bacon, viz. of 
 granting injunctions merely upon jorioriti/ of suit. Vide Kidncrc 
 V. Harrison, Cary, 68. Lord Bacon, in liis speech on taking his place 
 in Chancery, as an instance of this abuse, mentioned a case where 
 the bill only contained the following words : " 3Iy Lord, the bill 
 came in on Monday, and the arrest at common hw was on Tues- 
 day. I pray tlie injunction uy.ou priority of suit." Ho added, that 
 
 D '2
 
 36 TO STAY PROCEEDINGS AT LAW. 
 
 Iti ivhrit cnscs [n |ila' inaiiiuT, a//rr a decree the court will, at 
 '^ the application of the defendant, restrain the plain- 
 
 Alfcr (U«- tirt' from procecdinc^ at law for the same matter, even 
 hi^niliity'ic- without bill filed by the defendant for that purpose, 
 strained jf bclnff a contempt to proceed at law, after the sub- 
 
 iVoiu pro- ^ , II- r- 
 
 cctdiii"- at jcct of the causc has been attached in a court oi 
 
 law. equity {a). 
 
 Exception The case of a mortgagee is an exception to this 
 
 in tie case j.^|g r^^ \^q \^r^^ r^ riffht to proceed on his mortffa2:e 
 
 <)l niort- ' or d n 
 
 ga.ofee. in equity and upon his bond at law at the same 
 
 time. But as the mortgagee can have nothing, but 
 on condition of reconveyance, and giving up the 
 title deeds, the mortgagor will not be obliged to 
 pay the money upon the bond, if there is any dan- 
 ger of his not getting back his title deeds ; there- 
 fore, where a mort2;ac:ee had lodo-ed the title deeds 
 with an attorney, who claimed a lien upon them. 
 Lord Redesdale restrained the mortgagee from 
 proceeding at law upon his collateral security [h) ; 
 and his Lordship mentioned a case, where a mort- 
 gagee died without any heir that could be disco- 
 vered, and the court restrained the executor from 
 proceeding at law to compel payment of the money, 
 there beine; no heir wdio could re-convev. The 
 money was ordered into court until the executor 
 could find the heir, and the cause remained some 
 years in court, until it was at last thought worth 
 
 he did not mean to make it a matter of a horse race, who shall 
 be first in Westminster Hall, and accordingly afterwards abolished 
 it by his 13th ordinance. 
 
 (fl) Mocher v. Reed, 1 Ba. & Be. 318. Wilson r. AVeather- 
 herd, 2 Mcriv. 406. Vide also Bell v. O'Reilly, 2 Sch. c'v Lcf. 4-30. 
 
 {h) Schoole v. Sail, 1 Sch. .<v- Lcf. 176.
 
 TO STAY PROCEEDINGS AT LAW. 37 
 
 while, to o'ct an act of parliament to revest the TmvhaUuies 
 
 ^ ^ grantee/. 
 
 estate on an allegation, that the heir could not be 
 
 found ; the crown giving its consent. 
 
 A question has frequently been raised, whether Whether the 
 
 the court would restrain the mortgagee from suing J^">|",..j;"/.i 
 
 at law upon the bond after fureclosure, where the niortgagee 
 
 , ' ^j. . from suing 
 
 mortgaged premises have not been sumcient to pay (,„ [\^^. [^(,,^1 
 the debt : and it has been insisted, that the mort- "5^^'" ^"•■^'" 
 
 1 1 closure. 
 
 gagce, by foreclosing and taking tlie pledge, has 
 made his election, and relinquished his riglit to the 
 personal remedy. The better opinion seems to be, 
 that, though tRis proceeding opens the foreclosure {a), 
 "yet the court will not restrain the mortgagee from 
 proceeding for the difference (b). This doctrine 
 causes great difficulty, where the mortgaged estate 
 has been sold and conveyed away. Lord Thurlow, 
 however, in Tooke v. Hartley (according to a MS. 
 note of Sir S. Romilly, which was confirmed by Lord 
 Eldon's (c) recollection of what passed at the time), 
 expressly stated his opinion, that, whether the 
 estate had been sold by the mortgagee to a stranger, 
 6y had remained in the possession of the mort- 
 gagee, there was no distinction ; that the mortgagee 
 might equally proceed upon the personal scciu'ity, 
 and recover the difference. The point afterv.ards 
 arose in the case of Perry v. Barker (^d\ where, 
 after a foreclosure and sale, the mortgagee broughl 
 an action for the difference. Lord Eldon, after re- 
 
 (a) Dashvvood u. BIythway, 1 Eq. Ab. 317. 
 {b) Aylet v. Hill, 2 Dick. 5o\. Tooke v. Hurtley. '2 Bro. C. C. 
 125. 2 Dick. 78,5. 
 (r;) 8 Ves. 5;}1. 
 (d) 8 Ves. 527.
 
 38 TO STAY ri{()(KEUlN(;S A !• F-AW. 
 
 Jnxvhnt cases iii;irkiiii»- upon the inconsistency of admitting that 
 ^' tlic foreclosure was opened by bringing tlie ac- 
 
 tion, and that the action might be for the re- 
 mainder of the money, yet in consequence of the 
 opinion of Lord Thurlow, and as the case had never 
 been expressly decided, granted an injunction, ex- 
 tending it to stay trial, the plaintiff paying the 
 money into court. Tiie cause afterwards came on 
 before Lord Erskine («), who was of opinion that 
 as the action opened the foreclosure, the mort- 
 gagee ought to be allowed time to get back the 
 estate and tender a re-conveyance, and' that the mort- 
 gagor was entitled to redeem ; but as the mortgagee 
 had taken possession a considerable time before, and 
 the balance was inconsiderable, a perpetual injunc- 
 tion was decreed. 
 Marshalling Where a creditor has his debt secured upon two 
 funds, and another only upon one fund, the latter 
 has a right to restrain the former from proceeding 
 against that fund, which is alone liable to his debt, 
 and to compel him to resort to the other fund (J?). 
 This doctrine was much discussed in the cases re- 
 specting the estates of the American loyalists (c), 
 which being confiscated subject to their debts, it 
 was contended that a creditor ought to be restrained 
 
 (a) 13 Ves. 198. 
 
 {b) Lanoy v. Duke of Athol, 2 Atk. 44'G. Aldrich v. Cooper, 8 
 Ves. 388. 
 
 (c) Wright V. Nutt, 1 H.B. 136. 3 Bro. C. C. 326. Kenipe v. 
 Antill, 2 Bro. C. C. 11. Peters v. Erving, 3 Bro. C. C. 52. Fol- 
 liot V. Ogdcn, 1 K. B. 123. a-d in error, 3 T. R. 726. and after- 
 wards in the House of Lords, Bro. P. C. Ed. Tonil.lll. Dudley 
 V, FoHiott, ib. oSl.
 
 TO STAY PROCEEDINGS AT LAW. S9 
 
 from pursuing the debtor personally here, till lie had in x^hai cases 
 
 1-1 11 -1 1 I i i^i ^) (lilted. 
 
 applied to make that property available to the pay- 
 
 ment of the debt. In several of the cases upon 
 the subject, Lord Thurlovv, Lord Kenyon, and Lord 
 llosslyn expressed decided opinions in favour of tiie 
 relief so prayed, upon the principle, that if it aj)- 
 peared, that there was in the hands of the creditor, 
 either possession of the estate in fact, or the clear 
 means of effecting that possession, he ought to be 
 called on so to do ; or at least the court should inter- 
 pose, the creditor not having the power, of assigning 
 to the debtor-, those means, which he had of affecting 
 the property. In the last of these cases the bill was 
 dismissed upon the particidar circumstances, as it 
 did not appear, that the creditor had the means of 
 making his demand effectual, against the fund arising 
 from confiscation («) ; Lord Eldon, however, in a 
 most luminous judgment, expressed his dissent from 
 the principles of these opinions ; his Lordship 
 thought, that, as it could not be contended, that 
 under such circumstances, the personal liability of 
 the debtor is taken away, so it could not be law, 
 that the remedies resulting out of tliat liability 
 should be restrained by confining the remedies to 
 particular funds, or by confining them altogether 
 as to the person, till the creditor liad recourse, 
 not to all the funds of the debtor, but to some 
 of his funds, which funds in the original constitution 
 of the debt, and the transaction forming the relation 
 of debtor and creditor, the debtor did not pro- 
 pose, nor the creditor receive, as the funds to be 
 
 ((/) Wright V. 8im[)!«oii, G \'cs. Til.
 
 40 TO STAY JMIOCKKOINGS A'J" LAW. 
 
 Inivhntcaaes cliai<^ecl by tlic cotitmct : that coiisidering it as a 
 
 ^ _J })lr(lii;'c, ii' the effect of the contract was, that he 
 
 shoiihl June all tlie remedies belonging to tlie nature 
 of a pledge, and also personal responsibility, it was 
 questionable whether the revolution would have 
 operated, to drive the creditor to the pledge, and 
 compel him to give uj) the other remedy at the 
 ^ instance of the debtor ; but that the difficulty was 
 
 much enhanced, when the })ledge was not given to 
 the creditor by the contract, but thrown to him by 
 an act not his own. 
 Sureties. We may here also notice the circumstances by 
 
 which sureties may be discharged from their liabi- 
 lities, and become entitled to the assistance of a court 
 of equity in restraining the creditor from proceeding 
 against them. It is well settled that wherever the 
 creditor by virtue of some agreement (not by merely 
 remaining inactive) gives time to the principal 
 debtor, he thereby discharges the surety (^ci). It is 
 immaterial for this purpose, whether the surety has 
 by such agreement sustained any actual damage ; 
 for even if it be manifestly for his benefit, he will, 
 nevertheless, be discharged ; it being sufficient that 
 his right to force the principal to bring the question 
 to an immediate determination, by which he may be 
 discharged from his liability, has been suspended by 
 
 {«) Nisbet V. Smith, 2 Bro. C. C. 579. Law v. East India Com- 
 pany, 4 Ves. 824, Ex parte Gifford, 6 Ves. 805. Beamnont v. 
 Boultbee, 18 Ves. 20. Bank of Ireland v. Beresford, 6 Dow, 233. 
 Devaynes v. Noble, 1 Meriv. 530. (Sleech's case.) Bowmaker v. 
 Moore, 3 Price, 214. Samuel v. Howarth, 3 Meriv, 272, Eyre 
 u, Bartrop, 2 Mad. Rep, 221.
 
 TO STAY PROCEEDINGS AT LAW. 41 
 
 the act of the creditor ; and particularly as the ere- In -what cases 
 ditor has put it out of his power, to have his remedy ^^°" 
 against the principal. A similar doctrine holds with 
 regard to bills of exchange, the parties upon whicli 
 are chargeable in different order, the acceptor being 
 first liable ; the indorsers in the order in which they 
 stand on the bill. The holder may, at his election, 
 sue all or any of the parties to the bill ; he has the 
 sole dominion over it, and may make what arrange- 
 ments he pleases with any of them, but he does it at 
 his peril ; for if he thereby alter the situation of any 
 other person on the bill to the prejudice of that 
 person, he cannot afterwards proceed against him ; 
 therefore, though he may give timie to or discharge 
 his immediate indorser (which will not discharge an- 
 other liable to him prior in point of order), yet he 
 cannot give time to or discharge the drawer or 
 acceptor, and afterwards proceed against an in- 
 dorser («). It has now been determined that the 
 acceptor of an accommodation bill is not in the 
 situation of a surety for the payment by the drawer, 
 and consequently not discharged by time being given 
 to the drawer. He is liable in all circumstances, and 
 nothing can discharge him but payment or release (/;). 
 
 It is an established rule, that an injunction, or ^o injunc- 
 any order in the nature of an injunction, will not be *""^ '" ^'"'""" 
 
 *' J _ nal cases. 
 
 granted to restrain proceedings in a criminal mat- 
 in) Tindal v. Brown, 1 T. R. 167. Walwyn v. St. Quintin, 1 
 
 B. & P. 652. Smith v. Knox, 1 Esp. N. P. C 46. English v. 
 
 Darley, ib. 49. 2 B. & P. 61. Gould v. Robson, 8 East, 576. 
 
 Clarke v. Devlin, 3 B. &c P. 263. Ex parte Giftbrd, 6 Vcs. 802. 
 
 Withall V. Masterman, 2 Campb. 179. 
 
 [b] Fentum v. Pocock, 5 Taunt. 192. overruling Laxton v. Peat< 
 
 2 Campb. 185. and Collott v. Haigh, 3 Campb. 2SI.
 
 4^2 TO STAY PROCEEDINGS AT LAW. 
 
 Iinvhnt cases tcr (a). Accordingly, in the case of Lord Montague 
 ^'"" ' V. Diidinan (/v), Lord Hardwicke allowed a demurrer 
 
 to a bill for an injunction to stay proceedings on a 
 mandamus, issued to compel a lord of a manor to 
 hold a court : " the court,'* he said, " has no juris- 
 diction to grant an injunction to stay proceedings 
 on a mandamus, nor to an indictment, nor to an 
 information, nor to a writ of prohibition." 
 Except But where an indictment is preferred by persons 
 
 plaintiii' in ^^^^ ^^'^ themselves plaintiffs in equity, they are sub- 
 equity pre- ject to control by order personally affecting them, 
 
 fers indict- \ , , ^ n -, ,^ ,,p 
 
 nients. although detendants are not so (c) ; and thereiore in 
 
 the case of the Mayor of York v. Pilkington (d), where 
 a bill and cross bill were depending in order to esta- 
 blish a right of fishing, and the plaintiffs in the first 
 cause had indicted the agents of the defendants for 
 a breach of the peace in fishing : Lord Hardwicke 
 made an order to restrain the plaintiffs from pro- 
 ceeding till the hearing of the cause and further 
 order (e). 
 
 (a) HolderstafFe v. Saunders, 6 Mod. 12. 
 
 (b) 2 Ves. 396. 
 
 (c) Per Lord Eldon, 18 Ves. 220. 
 
 (d) 2 Atk. 302. 
 
 (e) There is an old case in Moor, where an injunction was 
 granted to restrain the defendant from praying restitution upon an 
 indictment for a forcible entry, Hendy v. Owen, Mo. 820. pi. llOS. 
 cit. 14 Vin. Ab. 422. Lord Hardwicke, however, in alluding to it, 
 has observed, that he would not go so far, unless the subject were 
 mixed up with civil proceedings in equity, 2 Ves. 399. ; and it maj 
 be collected from other observations, 2 Atk. 303. that this case 
 would be subject to the general rule, except where the person pre- 
 ferring the indictment was also plaintiff in equity. There are also 
 several old cases in Tothill, whore the Court asserted its right to thu
 
 TO STAY PROCEEDINGS AT LAW. 43 
 
 There is also no jurisdiction in equity by injunction How ob- 
 
 1 n n ^ a i Gained. 
 
 to stay the process or a court or law upon an Award 
 
 which has been made a rule of court, under the st. Award 
 9 & 10 W. 3. c. 15. Lord Eldon, upon a motion to g^&Yo. W 
 dissolve an injunction which had been obtained in 3. c. 15. 
 a case of this nature, observed, tliat he had not found 
 by his own research into authority, or from the in- 
 formation of others, any instance in which a court 
 of equity had actually interposed by injunction to 
 stay the process of a court of law, in which the 
 award was made a rule of court («): that it was difficult 
 to see how this could be under the first section of 
 the act which declares, that process shall not be 
 stopped or delayed in its execution by any order, &c. 
 of any other court either of law or equity, unless it 
 shall be made to appear on oath to such court, &c. 
 That if upon bill filed for an injunction in the 
 ordinary way, upon non-appearance, the plaintiff 
 could have the injunction by the order of the court, 
 the effect would be, to stop the process in its execu- 
 tion, though it were not shown in any way upon oath 
 that there had been misbehaviour, corruption, &c.(^). 
 
 cognizance o^ perjury committed before itselfbut this was probably 
 in all the cases, as in Miller r. Girdlers' Company, Toth. ll-i, only 
 by injunctions against actions for perjury. Siderson v. Eastcourt ; 
 Bullen V. Bullen; Freeborne v. Leasure ; Halse v. Browne, ib. 156, 
 157. In one instance, o£'-tO costs were given for perjury. Mound 
 V. Culme, ib. 157. 
 
 (a) There is, however^ a case in the Exchequer, which seems 
 to have been overlooked, where, upon a bill filed to relieve against 
 an award which had been made a rule of the King's Bench, under 
 the statute, the plaintiff obtained an injunction. Simmons v. Mul- 
 lins, Bunb. 182. 
 
 {b) (Iwinitt V. Bannister, 1 1 Vct^. 5:iO.
 
 44 TO STAY rUOC'KKDINGS AT LAW. 
 
 I low ob- Injunctions to stay proceedings at Jaw, are granted 
 
 ^^^^^^J____ either l)efbre or after the commencement of the ac- 
 
 At what tion ; or to stay trial ; or after verdict to stay jiidg- 
 
 stage of the j^j^3,j| . .^^l\^.y judgment to stay execution, or proceed- 
 
 proc-ccdmgs ' . . 
 
 at law an in- iuffs uudcr ail cxecution ; — if execution has taken 
 bToSned V^'^^'^'y to stay the money in the hands of the Sheriff; 
 or if part only of a judgment debt has been levied 
 by ^Jieri Jhcias to restrain the suing out of a capias 
 ad satisjaciendum (a). The courts are, indeed, un- 
 willing to interfere where it appears that the plaintiff 
 has lain hy till after a trial has taken place {l))\ but, 
 in general, if it is necessary for the obtaining a fair 
 decision, a bill will be sustained for a discovery, and 
 an injunction in the mean time, though after a verdict 
 at law (c). 
 
 (a) 1 Mad. Ch. 109. 
 
 {h) 3 Price, 169. 2 Cox, 12. 
 
 (c) Withall u. Lilley. For. Ex. Rep, 94'. Field v. Beaumont, 
 1 Swanst. 204. The observations of the Chancellor in the latter 
 case seem, in effect, to overrule the decision of the Court of 
 Exchequer, in Whitmore u. Thornton, 3 Price, 231. The decision 
 in Snowball v. Vicaris, Bunb. 175, seems to be wrong, as the 
 evidence might have been produced upon the trial.
 
 TO STAY PROCF.F.DiyOS AT LAW. 4.5 
 
 Hoxo ob- 
 tained. 
 
 CHAPTER III. 
 
 In what Manner Injunctions to stay Proceedings at 
 Law are obtained. 
 
 It is directed both by Lord Bacon's and Lord Not granted 
 Clarendon's orders, that no injunction for stay of ^^ '''""' 
 suit sliould be granted or revived upon PetitioJi (a). 
 This seems to have been understood to be the prac- 
 tice at a much earUer period : the granting injunc- 
 tions, without bill previously filed, having been one 
 of the articles of impeachment against Cardinal 
 Wolsey (J)), There are indeed instances, subsequent 
 to these orders, of injunctions granted in causes which 
 liad abated and not been revived (c) ; there is also a 
 case, where a manor with an advowson appendant 
 had been mortgaged, and the church becoming vacant 
 pending a suit to foreclose, in which the court 
 granted an injunction to stay proceedings in a qnare 
 impedit brought by the mortgagee, though the de- 
 fendant, the mortgagor, had not filed a bill (fi?). 
 These, however, are precedents which would not be 
 
 {a) Beames's Orders, 12. 35. SH. 
 
 (b) 1 Inst. 92. 
 
 (c) Duke of Hamilton v. Earl of Macclesfield, 1 Eq. Ah. 285. 
 Robinson v. Lord Wharton, ib. 
 
 (r/) Amhurst v. Dawling, 2 Vern. 401. The case of .Tory v. Cox 
 is cited in Vernon as another instance, but it appears from ilu* 
 entry in the register's book, wliitli is stated by Mr. rinch, Prce. 
 Can. ;)7I. thiit tliis is a niistai<e.
 
 46 
 
 TO STAY PROCEEDINGS AT LAW. 
 
 Ilotv ob- followed at i)rcse)it ; and it is laid down in all the 
 \ books as an established rule, that an injunction to 
 stay proceedings at law will not be granted except 
 upon bill filed (a). Thus where a bill was filed by a 
 seller for a specific performance, and an injunction 
 was moved for to restrain the purchaser from pro- 
 ceeding at law to recover the deposit from the 
 seller's attorney to whom it was paid, the motion 
 was refused with costs, the attorney not being a 
 party to the suit(Z'). 
 
 Exceptions There are certain exceptions to this rule, some 
 to this rule, _ . 
 
 of which have been already noticed : as ; where a 
 
 decree has been made against an executor for the 
 
 administration of assets, in which case the court 
 
 will interpose by injunction at the application either 
 
 of the executor, or of the heir, or of the plaintiff in 
 
 the cause, to restrain a creditor who is no party to 
 
 the suit from proceeding at law (c) : where plaintiff 
 
 having elected to proceed in equity, is restrained 
 
 from proceeding in the cause at law, by the order 
 
 which directs him to elect (d) : where after a decree, 
 
 the court, at the application of the defendant, 
 
 restrains the plaintiff from proceeding at law for 
 
 the same matter (<?). By another exception, which 
 
 will be considered more fully hereafter (/"), the 
 
 necessity which formerly existed for the bail or the 
 
 (a) Wy. Pr. Reg. 231. Harrison, Ch. Pr. 5U. 1 Turn. Ch. 
 Pr. 361. 
 
 (b) Brown v. Frost, Sugd. V. &- P. 196. 
 
 (c) Ante, p. 31. 
 
 (d) Ante, p. 34. 
 
 (e) Ante, p. 36. 
 (/) Post, p. 73.
 
 TO STAY PROCEEDINGS AT LAW. 47 
 
 sheriff, if proceeded ai?ainst by the plaintiff at law, Jfoxc ob- 
 
 , , , 11 tamed. 
 
 to file a bill for an injunction, has been superseded, 
 
 and the courts have considered such proceeding, 
 as a breach of the injunction already granted. 
 
 There are also instances where causes have been Where the 
 depending for other purposes, in which applications ^^i.^^ ^^^ ^^i^, 
 have been made without bill filed, to stay proceedings a bill imme- 
 
 , diately. 
 
 either at law or in the Ecclesiastical court; and, upon 
 
 the party undertaking to file a bill immediately, the 
 court has stayed proceedings, until such bill filed. Thus 
 where there was a decree, which had been affirmed 
 by the House of Lords, declaring that certain fee- 
 farm rents passed by a will, and directing the trustees 
 to convey ; the defendant, in order to obtain the 
 opinion of a court of law, having afterwards distrained 
 for non-payment of these rents, upon an application 
 for an injunction. Lord King observed, that though 
 he thought himself not w^arranted in granting an in- 
 junction without bill, yet he v/ould not endure to 
 see the justice of the court questioned, and accord- 
 ingly made an order, to stay the proceedings at law 
 till a bill was brought for an injunction (a). Upon 
 this authority Lord Hardwicke, in the cause of the 
 Duke of Buckingham v. Duchess of Buckingham (/>), 
 in which the Duchess, after a decree directing the 
 trusts of the will of her late husband to be carried 
 into effect, (which luid been affirmed in the House of 
 Lords,) applied to the spiritual court, and cited the 
 executors to prove the will per testes, whereupon \ 
 Mr. Sheffield moved for an injunction to stay her \ 
 })roceedings in the Ecclesiastical court, Lord Hard- 
 
 («) Aclicrley v. Vernon, cit. '2 E<j. Ab. 527. 
 [1)) '2, Kq. Ab. .326.
 
 48 TO STAY J»UOCi;i:i)Ix\GS .\T LAW. 
 
 jjow oh- wickc said, he did not think himself autliorized to 
 '"'"^' grant an injnnction, which could not be done with- 
 out a bill for that purpose ; but as there appeared 
 reason to stay the Duchess's proceedings, he made 
 the same order to that in Acherley v. Vernon. 
 Lord Thurlow under similar circumstances refused 
 an injunction («), but it does not appear that the ex- 
 pedient of granting an injunction till bill filed was 
 suggested to him. In that case there had been a 
 decree for a specific performance of an agreement 
 for a lease (^), which had been accordingly executed ; 
 the plaintiflP, however, brought an action against the 
 defendant to recover damages for the delay in per- 
 forming the agreement. His Lordship thought that 
 although the defendant would have been clearly 
 entitled in a new suit, yet the decree having been 
 wholly executed, the court would not make such 
 an order in the original cause. In a recent case, 
 however, in Ireland, where the precedents of Lord 
 King and Lord Hardwicke were cited, this indul- 
 gence was carried to a considerable length. A bill 
 for the specific performance of an agreement had 
 been dismissed with costs, the plaintiff not having 
 been able to make a good title. He then brought 
 an action upon the agreement, and upon a motion 
 made by the defendant to restrain him from pro- 
 ceeding at law. Lord Manners granted an injunction, 
 upon the defendant's undertaking forthwith to file a 
 bill(c). 
 Mustbespc- It is also necessary that an iniunction should be 
 
 cifically -^ ^ 
 
 ^^'"'^•■'^^^* (a) Ford V. Compton, 1 Cox. 296. 
 
 (i) 2 Bro. C. C. 32. 
 
 (f) Macnamara v. Arthur, 2 ua. <Ji: 1)C. 34-9.
 
 TO STAY PKOCKF.DINGS AT LAW. 49 
 
 specifically prayed by the bill, as notwithstanding How ob- 
 the boasted efficacy of the prayer for general re- ^^^^^J____ 
 lief(<7), it has been determined that an injunction 
 cannot be obtained under it alone (6), because the 
 defendant might make a different case by his answer, 
 as against tlie general words, from what he would 
 have done against the specific prayer for an in- 
 junction. 
 
 The 4 Ann. c. IG. s. 22. directs that no subpoena Subpoena. 
 or other process for appearance shall issue till after 
 a bill is filed, and though the contrary be sometimes 
 done, yet it is irregular and at the hazard of costs (c). 
 The statute, however, excepts the cases of bills for 
 injunctions to stay waste, or to stay suits at law com- 
 menced ; but the bill, must in these cases be on the 
 file, before the return of the subpania [d). In serving 
 the subpoena, care must be taken to attend to the 
 rules of the court, as an order for an injunction 
 obtained for want of appearance, will be discharged, 
 if the subpoena should not have been regularly 
 served (e) ; and persons having privilege of peerage 
 are entitled to a letter missive, without wliich the 
 process will be ineffectual {f). 
 
 {a) 2 Atk. 3. 141. [) Atk. 131.— 1 Eden 26.-2 Ves. 485— 
 12 Ves. 48.— 13 Ves. 114. 
 
 (6) Savory u. Dyer, Ainb. 70. Davile v. Peacock, Barnard, 
 Ch. Rep. 27. 
 
 (c) 1 Turn. Ch. Pr. 78. 
 
 {d) lb. 
 
 (e) Menzics v. Rodrigues, 1 Price, 92. 
 
 (/) Robinson v. Lord Rokeby, 8 Ves. 601. Lord Milsington v. 
 Lord Portnioro, 1 \. k B, 121. 
 
 E
 
 50 'ro STAY i'K()cki::din(;s at law. 
 
 Ilovj oh- The siibp(rna may be served, at any time before 
 
 iainrd. tvvclvc o'cloclv at night ott the return day (ft), even 
 
 Wlicn to be though the defendant live at such a distance from 
 
 served. town, as to make it impossible for him to appear in 
 
 time (b). It may also be made returnable on the 
 
 same day on whicli it is sealed, but in tliat case it 
 
 must be served before the court rises (c), but it 
 
 cannot be served on a Sunday (J). 
 
 In what The writ is served, eitlier by delivering the v.'rit 
 
 iiKinner. itself under seal to the defendant, or by showing 
 
 it to him and delivering the label. If there are 
 
 more defendants than one (three being the greatest 
 
 number that can be contained in one subpoena), the 
 
 body of the subpoena ought to be delivered to the 
 
 last defendant, the ethers having been served with 
 
 labels : the body of the writ under seal, must always 
 
 ])e shewn to such defendants, as are served with 
 
 labels (e). 
 
 Where to be Service by leaving the writ at the defendant's 
 
 served. dvvelling-house or lodging with some of the family 
 
 Vsill be deemed good servdce ; and if he keep his house 
 
 shut up, the writ maybe left hanging on the door, or 
 
 may be put into tlie house under the door, or within 
 
 the window, and if it can be shown to have come to 
 
 his hands it will be deemed good service (y). Send- 
 
 {«) 1 Turn. Ch. Pr. 80. Hind, 83. Harrison, Ch. Pr, 103. 
 
 {b) Nightingale «. Russell, 1 Fowl. Ex. Pr. 121. 
 
 (c) Harrison, Ch. Pr. 103. 
 
 {d) 29 Car. 2. c. 7. s. 6. Mackreth v. Nicholson, 19 Ves. 367. 
 It is erroneouslj-^ stated in Gilbert's For. Rom. 43, and Harrison, 
 103, that it may be served on a Sunday. 
 
 {e) Harrison, Ch. Pr. 103. 
 
 (/) Wy. Pr. Reg. 401. Harrison, Ch. Pr. 104.
 
 TO STAY niOCEEDlNGS AT LAW. 51 
 
 ing it under cover, to the person to whom the de- IIow ob- 
 
 fendant desired plaintiff to address hisletters, hasbeen _^^^' 
 
 ordered to be good service (<r/) ; service upon the 
 defendant, while abroad, or in Scotland, has been 
 deemed sufficient (/>). There seems to be considerable 
 doubt, whether leaving the subpoena or label at the 
 counting-house, or place of business of a defendant, 
 will be sufficient service. In a case in the Ex- 
 chequer, where this point was discussed, two pre- " 
 cedents (c) were produced in favour of the practice j 
 the court, however, said, that a counting-house was 
 not a proper or convenient place to serve a party 
 with a subpoena, being neither the place of his 
 abode nor residence, but devoted to mercantile 
 concerns ; and notwithstanding the precedents, held 
 that it was not good service (^). Lord Thur- 
 low also, in a case where the defendant lived at 
 Epsom, and, being a barrister, had chambers in the 
 Temple, was of opinion that service at his chambers 
 was not sufficient (e). In a recent case, how^ever, it 
 seems to have been admitted that the subpoena may 
 be left at the counting-house or place of business of 
 a person abroad at the time, if it be delivered to 
 some partner or acknowledged clerk (/'). But in 
 that case, the defendant used as his counting-house, 
 a room in the lower part of the dwelling-house of a 
 
 {a) Ilant v. Lever, 5 Vcs. 1 1?. 
 
 {b) Bourke v. Lord Macdonald, 2 Dick. 587. Scott v. Hough, 
 4 Bro. C. C. 213. 
 
 (c) Slioolbred r. Boats in Scac. 25 Nov. 1795. The Attorney 
 General v. Cecil, ib. 21th March, 1787. 
 
 {d) Nesbitt v. Bird, 1 Fowl. Ex. Pr. 124. 
 
 (e) Anon. Hind, 92. Harrison, Ch. Pr. i06. 
 
 [f) Menzies v. llodrigues, 1 Price, 92. 
 
 E 2
 
 52 
 
 TO STAY PROCEEDINGS AT LAW. 
 
 IIoxv ob- 
 tained. 
 
 Substituted 
 service of 
 subpoena. 
 
 person who let the whole of the apartments on his 
 c^ronnd floor to different merchants for the ])urpose 
 of business ; the sul)po(?na had been left with the 
 servant of the proprietor of the house, which the 
 court held insufficient. Leaving the subpoena at the 
 lodgings of a defendant, who had left them twelve 
 months previous thereto, was holden insufficient {a). 
 The court on motion will order that leaving the 
 subpoena with the turnkey of a prison, be good 
 service on a prisoner at large. If the defendant 
 be in close custody, such service is good without 
 motion (b). 
 
 Service on the husband alone is good service 
 where both husband and wife are co-defendants ; 
 but service on the wife will not be deemed sufficient, 
 tliough an order may, under circumstances, be spe- 
 cially obtained for that purpose (c). Where children 
 are defendants, and their parents are secreting them, 
 service has frequently been directed to be made upon 
 the parents (</). Service on one partner is good 
 service upon another partner who is abroad (e). 
 
 Great laxity of practice formerly prevailed in per- 
 mitting service upon agents, clerks in court, and 
 other persons, to be good service where a defendant 
 
 {a) Parker v. Blackburn, 2 Vern. 369. 
 
 (Jb) Wy. Pr, Reg. 403. Harrison, Ch.Pr. 106. 1 Turn. Ch.Pr.8I. 
 
 (c) Pulteney u. Shelton, 6 Ves. l^?. according to the correct 
 statement of the case among the errata at the beginning of that 
 volume. 
 
 ((/) Baker v. Holmes, 1 Dick. 18. Hockley v. Lukin, ib. 353. 
 Garnum v. Marshall, ib. 77. S. C. 2 Atk. 70. Thompson v. Jones, 
 8 Ves, 141. 
 
 {e) Lady Carrington v. Cantillon, Bunb. 107. Fumes v. Lawes, 
 ib. Coles V. Gurney, 1 Mad. Rep. 187.
 
 TO STAY TKOCEEDINGS AT LAW. 55 
 
 was abroad («). This, however, has since been How ob- 
 
 remedied, and even Avhere there has been a cross . 
 
 cause, service on the clerk in court, has been holden 
 to be insufficient {b). 
 
 But where a defendant, to a bill to restrain his Service on 
 proceeding at law, resides abroad, it is usual to direct attorney at 
 that service of the subpoena, upon the attorney em- law. 
 ployed in the cause at law, shall be deemed good 
 service. This practice was made a vehicle of great 
 injustice, from the delay which it permitted a de- 
 fendant to interpose, to the right of a plaintiff who 
 happened to be abroad. The courts, therefore, esta- 
 blished a rule, that where a plaintiff at law is abroad, 
 the defendant at law shall not obtain an injunction, 
 without an affidavit of the equity of his bill. There - 
 is a difference in the practice of the Courts of Chan- 
 cery and Exchequer as to the stage of the pi^oceeding 
 when this affidavit is required, and as to the mode 
 in which the application is to be made. They are 
 neither of them, however, very material, as sub- 
 stantial justice is obtained by the practice of both 
 courts. 
 
 In the Court of Chancery an affidavit of merits, In the Court 
 must attend the application that service of the sub- ^' 
 
 (a) Hales v. Sutton, 1 Dick. 26. Carter v. De Brune, ib. 39. 
 
 Hide V. Forster, ib. 107. Leslie v. , cit. 1 Sch. & Lef. 238. 
 
 Gardiner v. Mason, 4 Bro. C. C. 478. 
 
 (1)) Roberts v. Worsley, 2 Cox, 389. Bond v. Duke of New- 
 castle, 3 Bro. C. C. 389. Anderson v. Lewis, ib. 1-29. 2 Dick. 776. 
 Smith V. Hibernian Mine Company, 1 Sch. it Lef. 238. Rickcord 
 V. NedrifF, 2 Meriv. 4-58. In Gildenichi v. Charnock, 6 Ves. 171. 
 service upon the clerk in court of a subpoena to answer an amended 
 bill was under very peculiar circumstances allowed to be good 
 service.
 
 54 
 
 TO STAY PROCEEDINGS AT LAW. 
 
 JToui ob- 
 iaiucd. 
 
 In the Court 
 of Ex- 
 chequer. 
 
 ■^ 
 
 ]KV)m on the defendants, attorney at law, should be 
 good service («). In one case, indeed, Lord Thurlow 
 was of o])inion, in conformity to the practice in the 
 Exchequer, that this order might be obtained witli- 
 out aiHdavit, and that the affidavit must be made 
 upon tlie subsequent applicrJion for the injunc- 
 tion (b). In a previous case, however, he had been 
 of a different opinion (c), and his fu'st determination 
 has been subsequently followed (d). It has also been 
 decided in opposition to the practice in the Ex- 
 chequer, that it is not necessary, that the affidavit 
 should state, a previous refusal by the attorney to 
 accept the subpoena (<?). 
 
 The practice in the Court of Exchequer, is stated 
 by Mr. Fowler (f), to be for tlie attorney of the de- 
 fendant at law, to apply to the plaintiff's attorney, 
 to know if he will accept of a subpoena to appear. 
 If he refuses, an affidavit is made of such application 
 and refusal, and the court makes the order. This is 
 a motion of course, and no affidavit of merits is re- 
 quired (g). If the attorney neglect to enter an ap- 
 pearance, an injunction is moved for, upon the ex- 
 piration of the return of the subpoena, supported by 
 an affidavit of the merits of the bill upon an attacli- 
 
 (a) The affidavit may be made by the solicitor, if he has personal 
 knowledge of the merits. 3 Mad. 551. 
 {b) Burke v. Vickars, 3 Bro. C. C. 24. 
 
 (c) Delancy v. Wallis, ib. 12. 
 
 (d) Stephens v. Cini, 4 Ves. 359. Fullarton v. Wallace, ib. 360. 
 n. Anderson v. Darcy, 18 Ves. 447. White v. Klevers, ib. 471. 
 Kenworthy v. Accunor, 3 Mad. 550. Baillie v. Larkens, cit. ib. 
 
 (c) French v. Roe, 13 Ves. 593. 
 (/) 1 Fowl, Ex. Pr. 223. 
 (g) Gilliat V. Wright, ib. 126.
 
 TO STAY PROCEEDINGS AT LAW. 55 
 
 ment. When the eigiit diiys for answering are ex- Hoiuob- 
 pired, an attachment pro Jbrmd is made out, and ' 
 
 upon producing- this to the court, and reading an 
 affidavit verij'ijing the facts stated hi) the bill, the coiirt, 
 if satisfied with the merits of the case, will grant an 
 injunction till answer or furtlier order (<7). 
 
 This motion is generally made without notice ; 
 in the following case, however, the court held that 
 notice was necessary. An agent had efrbcted a 
 policy for his principal, who resided in Spain, and 
 afterwards brouglit an action in his own name only, 
 against the underwriters and others, who filed a bill 
 for an injunction against both the principal and 
 agent J the agent appeared and answered in eight 
 days : the usual affidavit of merits was produced on 
 moving for an injunction against the principal : the 
 counsel for the agent objected to the motion for want 
 of notice, and the court held, that though in ordi- 
 nary cases notice is not necessary, yet that it was so 
 in the present case, the action having been brought 
 in the name of the agent only (b). 
 
 The court, it is said, does not expect a plaintiff to 
 verify all the allegations in his bill with the same 
 precision that is required in an answer ; it will be 
 sufficient, if he substantiate the general head of 
 equity, which will entitle him to an injunction (c) : 
 but a material variance, between the bill and the 
 affidavit, would be fatal. As where the bill stated 
 that bills of exchange, which were the subject of the 
 action, were lent for the defendant's accommoda- 
 tion, whereas the affidavit stated that they were 
 
 (a) 1 Fowl. Ex. Pr. '223, ct scq. 
 
 (b) Crew r. Mertins, ib. 225. 
 {(•) Nuncs> V. Jaft'ray, ib. 226.
 
 56 
 
 TO STAY PROCEED I NGS AT LAW. 
 
 JIou) ob- given to the defendant to pay the balance of his ac- 
 ' count to the plaintiffs, which they afterwards found 
 
 to be erroneous {a). 
 
 In one case, however, an affidavit of merits was 
 dispensed with entirely. An af'^ent had effected a 
 policy for his principal, who resided abroad, and a 
 bill was filed to restrain proceedings in an action 
 brought upon it : the agent put in his answer, ad- 
 mitting the material facts of the bill. An injunction 
 was moved for unon these admissions, until the an- 
 swer of the other defendant should come in. An 
 objection was made, that there ought to have been 
 an affidavit ; the court, however, overruled it, and 
 granted an injunction, considering the admissions 
 equivalent to an affidavit (b). 
 
 This motion however has been refused, 'where no 
 declaration has been delivered (c) ; and in a case, 
 where costs had been taxed upon a judgment, as in 
 case of a nonsuit, but not paid ; inquiry was made 
 of the plaintiff's attorney where the plaintiflT resided, 
 that the costs might be paid ; but the attorney not 
 only refused to satisfy the inquiry, but threatened 
 to bring a fresh action ; the court, upon this motion 
 being made, said it diftered from the ordinary case, 
 as there was no action either commenced or depending ; 
 that the costs are merely personal to the party : and 
 as to the threat used by the plaintiff's attorney, it 
 could not, upon that circumstance alone, grant the 
 motion {d). 
 
 (a) Nunes v. JafFray, ib. 226. Vide also Wattleworth v. Pitcher, 
 2 Price, 189. 
 
 (b) Royal Exchange Insurance Company v. Ward, ib. 225. 
 
 (c) Angerstein v. Wentworth, ib. 228. 
 
 (d) Cecil V. Reilly, ib. 226.
 
 TO STAY PROCEEDINGS AT LAW. 57 
 
 If the defendant appears, it cures all irregularity IIox^^ ob- 
 in the service of the subpoena {a). Lord Hardwicke, _^^^^____ 
 
 however, was of opinion, that where the service had Effect of ap- 
 been just before tlie long vacation, and the defendant P^^""^"^^* 
 had cliosen to appear rather than be liable to an at- 
 tachment, that he might still be at liberty to insist 
 upon the want or irregularity of the service (b). If 
 an appearance has been entered, the party will not 
 be suffered to strike it out upon a discovery of an 
 irregularity in the service of the subpoena ; though 
 there are cases, in which the court w'ill give leave, on 
 motion, that the entry may be withdrawn (c). 
 
 The Bill having been filed, and process regularly 
 served, an Injunction, the force and extent of which 
 will be explained hereafter, may be obtained in the 
 Four following cases. 
 
 1st. For "dcant of appearance in due time after Injunction 
 service and return of the subpoena. In the Court of appearance. 
 Chancery, where the defendant resides in London, 
 or within twenty miles (in which case the cause is 
 termed a town cause), if he has been served four 
 days or more before the return of the subpoena, he 
 has time, until the return day : if he be served on 
 the return day, or a day or two before, then four 
 days after the service. If the defendant reside 
 more than twenty miles from London (in which case 
 
 (n) Anon. 13 Atk. 567. 
 
 (6) Ibid. 
 
 (c) Menzies v. RodrigucS; 1 Price, 92.
 
 .58 TO SI'AY PIIOCEKDINGS AT LAW. 
 
 lloxv oh- the cause is termed a country cause), he has eight 
 
 ' clays after the return day, unless he has been served 
 
 eight days before, in which case he must appear on 
 the return day; if served four or five days before 
 the return, he has then four or five days after the 
 return. Where the subpoena is returnable the last 
 day of term, the defendant has till the first re- 
 turn of the following term. Where a defendant 
 resides within ten miles of London, the subpcena 
 maybe returnable immediately; but, as mentioned 
 before, it must be served on the same day that it is 
 taken out, before the rising of the court ; in this 
 case, the defendant must appear, within four days 
 inclusive of the day of service (o). 
 
 In the Court of Exchequer, adefendant is not bound 
 to appear till the return of the process, however long 
 before he may have been served with it ; but by the 
 fifth general rule of that court, the defendant must ap- 
 pear on the next day after service of process returnable 
 immediately (which in that court is London, or within 
 five miles), and upon the second day on process re- 
 turnable on a day certain, and on the fourth day after 
 every common return. But in bills for injunctions 
 to stay proceedings at law, if a defendant appears 
 before the sitting of the court on the next day after 
 he is bound to appear by the above rule, it will be 
 sufficient, according to the present practice, to pre- 
 vent an injunction from being obtained for want of 
 appearance ; though in strictness such defendant is 
 liable to an attachment, and must pay the costs of it, 
 if it should be made out before he appears. Upon a 
 
 («) Wy. Pr. Reg. 37. Harrison, Ch. Pr. 108. 1 Turn. Ch. 
 Pr. 81-.
 
 TO STAY rilOCEEDINGS AT LAW. 59 
 
 subpoena returnable immediately, he must therefore Hmv ob- 
 enter an appearance on the second day after being ' . 
 
 served with it ; where the subpoena is returnable on 
 a day certain, an appearance must be entered before 
 the sitting of the court on the third day after the 
 return of the writ (^/). 
 
 If an appearance be not entered in time, an affidavit 
 of service of the subpa^na must be left with the 
 clerk in court, who will issue an attachment against 
 the defendant ; and the court may then be moved 
 for an injunction, which will be granted of course, 
 on a suggestion that an attachment has issued (b). 
 
 2dly. For xvant of an answer. In the Court of Chan- injunction 
 eery a defendant has in all cases eis^ht days, exclusive ^"'' ^'"^"^ 
 
 ^ o y ' answer. 
 
 of the day of appearance, to answer. If his appearance 
 be time enough within tlie term, a rule may be given 
 to him to answer within the term ; but if no rule be 
 given, he is at liberty to answer at any time within 
 the term (c). In the Court of Exchequer the time is 
 eight days after tlie delivery of the plaintiff's bill, 
 and before the sitting of the court, the following 
 day {d). If no answer be put in by the time pre- 
 scribed, an attachment issues, upon which an order 
 for an injunction i3 obtained as a motion of course. 
 Thp instant the attachment is issued, the plaintiff is 
 intitled to his injunction, as was determined in the 
 case of King r. Harrison (c), although the answer 
 
 (a) 1 Fowl. Ex. Pr. 22k 
 
 (5) 1 Turn. Ch. Pr. 361. 
 
 (c) Wy. Pr. Reg. 15. Harrison, Ch. Pr. IGl-. 
 
 {d) 1 Fowl. Ex. Pr. 223. 
 
 (e) Cit. 2 Meriv. 475.
 
 60 TO STAY r ROCKED IN GS AT LAW. 
 
 IToiv ab- had come in the evening before the injunction was 
 inmal. movccl for. For this purpose an answer, though 
 
 sworn, and in the master's office, is not to be con- 
 sidered as such, until it is actually on the file : an 
 answer had been sworn at six in the evening at the 
 master's house, and there left, the clerk of the public 
 office being informed of it: next morning the plaintiff 
 finding tliat it was not on the file, obtained an order 
 for an injunction, the defendant being in contempt 
 to an attachment; the delay in filing the answer arose, 
 from the master being from home, when the clerk in 
 the public office called for the answer : Lord Eldon, 
 however, refused to discharge the order for the injunc- 
 tion or the attachment («)• ^^^ ^ subsequent case. Sir 
 J. Leach refused a motion to set aside an injunction 
 with costs, the order having been obtained for want 
 of an answer ; and before it was sealed at the next 
 seal after the order, an answer was put in (b). When 
 the defendant's answer cannot be put in within the 
 proper time, the usual practice is for the defendant's 
 clerk in court, to signify to the plaintiff's clerk in 
 court, that he may move for an injunction upon the 
 defendant's praying time to answer ; and it is then 
 incumbent upon the defendant's clerk in court, to 
 obtain an order for a month's time to answer upon 
 the same day on which the order is made for the 
 injunction ; if this be not done, the defendant is 
 liable to an attachment (c). 
 
 («) Bi-uce V. Webb, 2 Meriv. 474. 
 
 (6) Rattray v. Bishop, 3 Madd. Rep. 220. 
 
 (c) 1 Fowl, Ex. Pr. 222.
 
 TO STAY PROCEKDINGS AT LAW. 6l 
 
 3dly. Upon the defendant's obtaining the usual Hcm ob- 
 
 x-v 7 ^ ^' J. t (lined. 
 
 Order for time to answer ; 
 
 4thly, If it be a country cause, or the defendant injunction 
 be abroad, upon his obtaining a commission to take JJJ^.''"i,^^g^.^'*Q^ 
 his answer, which is termed in practice craving a upon dcdi- 
 dedimiis (a), (b). 
 
 If the defendant refer the bill for Impertinence, be- Reference of 
 fore the time for answering is out, the plaintiff cannot, pertinence, 
 at the expiration of the time, move as of course for an 
 injunction for want of answer ; but he is then in the 
 same situation as if the time for answering was not 
 out, and must move upon notice and affidavit of 
 circumstances (c). 
 
 If the defendant, before the time for answ^ering Effect of 
 be out, puts in a Plea, or Demurrer, or both, an IJiuri-gr. 
 injunction cannot be granted while they are pend- 
 ing [d). But though in general a demurrer may be 
 
 (c) It seems that the practice in Ireland is, that a defendant 
 may, upon notice, move for a dedimus without an injunction ; and 
 that if an injunction is obtained pending such notice of motion, it 
 is dissolved of course on the dedimus being granted. M'Mahon v. 
 O'Brien, 1 Sch. & Lef. 237. 
 
 (b) There seems to be an error in the report of the case of 
 Parnell v. Nesbitt, 1 Price, H'l'. which represents a special motion 
 to have been made for an injunction, though the defendant had 
 obtained a commission to take his answer abroad, with three 
 months time for its return. 
 
 (c) Neale v, Wadeson, 1 Bro. C. C. 574. S. C. 1 Cox, 104. 
 Harris v. Montgomery, cit. ib. Macnamara v. Kinderley, 1 Fowl. 
 Ex. Pr. 276. 
 
 (c?) Anon. Sel. Ca. Ch. 24. Humphreys v. Humphreys, 3 P. W. 
 396. Cousins v. vSmith, 13 Vos. 16.3.
 
 62 TO STAY I'UOCEKDINCS AT LAW. 
 
 Hmv oh- filed lit any time befoie process of contempt has 
 
 " been issued, or an order for time obtained, even 
 
 though tlie period for answering be expired («) ; yet 
 where a defendant has permitted an injunction to 
 go against him upon a dediinus, the time for answer- 
 ing being expired, lie wiil not be allowed to demur 
 alone, although he is neither in contempt, nor under 
 an order for time (Z*). 
 
 To remedy as much as possible the delay occa- 
 sioned by this species of defence, the courts will 
 always permit a plea or demurrer to an injunction bill 
 to be argued out of their regular course. In the Ex- 
 chequer, the plaintiff applies for a short day for the 
 argument, when the court usually appoints the third 
 day after the application ; and if upon a rule giv^en to 
 I argue, the plea or demurrer is neglected to be set 
 down for argument, or, if set down, is abandoned by 
 1 the defendant's counsel, or is overruled, the plaintiff 
 Imiay immediately move for an injunction, which will 
 1 be granted till answer or further order (c). 
 
 As a defendant may plead to part, demur to part, 
 and answer to the rest of the bill ; if, upon argument, 
 either the plea or demur should be overruled, the 
 plaintiff will be entitled to move, upon that sug- 
 gestion, for an injunction ; and even if both plea 
 and demurrer should be overruled, some equity 
 may still be shown for granting or continuing an 
 injunction arising out of the defendant's answer : 
 thus where there was a demurrer, plea, and answer 
 
 (a) East India Companj^ v. Henchman, 3 Bro. C. C. 372. 
 SoM^erby v. Warder, 2 Cox, 268. 
 
 {b) Edmonds v. Savery, 3 Meriv. SOi. 
 
 (c) 1 Fowl. Ex. Pr. 235, 236. Vide also Lamb v. Bowes, Bunb. 
 11. K am Tt. Bradbury, ib. n
 
 TO STAY rilOCEEDINGS AT LAW. 63 
 
 to an injunction bill, the demurrer m as overruled, How ob- 
 and the plea ordered to stand for an answer, with ^"^'^ 
 liberty to except; yet an injunction was granted 
 upon the merits confessed in the answer (r/). 
 
 Where a demurrer has been put in, and any ad- 
 vantage has been gained at law by the defendant in 
 equity, in consequence of the pendency of the de- 
 murrer, it is proper that the parties, upon its being 
 overruled, should be placed in the situation in which 
 they would have been, if the demurrer had never 
 been filed. As observed by Lord Eldon: " while 
 it is in contemplation whether a good case can be 
 made or not ; if it turns out in the result of the de- 
 murrer, that there is an equitable case, the principle 
 is, to deal with it as an equitable case from the first, 
 and therefore it is the duty of the court, to place 
 the defendant, where he would have been, but for 
 an untenable defence (/>*)." In the case which con- 
 tains these observations, the defendant in equity, 
 pending a demurrer which he had put in, had taken 
 the plaintiff in execution ; the demurrer was after- 
 wards overruled, and the common injunction ob- 
 tained. Lord Eldon, upon motion, discharged the 
 plaintiff out of custody ; but as the judgment had 
 been satisfied by the plaintiff's having been taken in 
 execution, and if liQ/had been discharged, the debt 
 would have been lost j it was done upon the terms of 
 his undertaking again to confess judgment (c). So in 
 the case of Raphael v. Birdwood [d], where, in conse- 
 
 («) Mansfield v. Cook, 1 Fowl. Ex, Pr. 236. 
 {b) 3 Meriv. 235. 
 
 (c) Franklyn v. Thomas, 3 Meriv. 22.5. 
 {d Franklyn xu Thoina.s, 3 Meriv. 229. n. 
 
 N
 
 64 
 
 TO STAY ]'hoc];kijin(;s at law. 
 
 Ilnxv ob- 
 tain ed. 
 
 qiience of a demurrer luiving been put in (wliieli was 
 afterwards overruled), and the argmiient luiving been 
 postponed for the convenience of the defendant's 
 counsel, the plaintiff had been prevented from obtain- 
 ing the common injunction ; this principle was at- 
 tended to, and a special motion for an injunction to 
 stay trial, without the previous order for the common 
 injunction, was granted. 
 
 Injunction 
 where the 
 time for an- 
 swering is 
 not out, or 
 defendant 
 has answered 
 in time. 
 
 Special in- 
 junction 
 sometimes 
 granted to 
 stay pro- 
 ceedings at 
 law before 
 answer. / 
 
 If a defendant has appeared, and the time for 
 answ^ering be not out, or if he has answered in time, 
 an injunction can then only be obtained upon motion, 
 of wdiicli two days notice must be given to the de- 
 fendant's clerk in court («). An injunction was dis- 
 solved for irregularity, where the plaintiff having 
 obtained the injunction as of course, for want of the 
 answer of two defendants who resided abroad, with- 
 out notice to the other defendant, who was sole 
 plaintifi' at law, and had put in his answer in time (^). 
 
 Though an injunction will not be granted before 
 answer, on the sole ground that the plaintiff will other- 
 wise be entitled to sue out execution before the com- 
 mon injunction can be obtained (c); yet special in- 
 junctions to restrain proceedings at law will sometimes 
 be granted where the plaintiff has had no opportunity 
 of obtaining the common injunction (c?). Thus upon 
 a motion to restrain the defendant from suinir out 
 
 (a) Wy. Pr. Reg. 234. Harrison, Ch. Pr, 54-1. 
 Pr. 231. 
 
 (6) Cooper v. Flindt , Wightw. 409. 
 
 (c) Franklyn r. Thomas, 3 Meriv. 22.5. 
 
 {d) Ibid. 
 
 1 Fowl. Ex.
 
 TO STAY TROCEEDINGS AT LAW. 65 
 
 execution upon a warrant of attorney to confess judg- Hmo oh- 
 
 ment on a bond, part of the consideration of which ' 
 
 was the defendant returning, as cash, a post obit 
 security formerly granted by the plaintiff, who was 
 an expectant heir, in discharge of a debt of incon- 
 siderable amount, and upon the understanding that 
 the principal was not to be called for till the deatli 
 of the plaintiff's father. Upon affidavit of these facts, 
 it being the vacation, and no subpoena returnable 
 till the next term. Lord Eldon granted the injunc- 
 tion, the plaintiff undertaking to serve the defend- 
 ant with immediate notice, and with liberty to the 
 defendant to apply during the continuance of the 
 sittings [a). 
 
 («) Annesley v. Rookes, 3 Meriv. 226. n.
 
 65 
 
 [Joiv servct/. 
 
 TO STAY PHOCEEDIMGS AT LAW, 
 
 Service of 
 tlie order- 
 
 Service not 
 necessary 
 ■where the 
 party hears 
 the order 
 pronounced, 
 or is inform- 
 ed that it has 
 been made. 
 
 CHAPTER IV. 
 
 Of the Extent and EJfect of the Common Injunctiony 
 and in what Manner it may he extended to Stay 
 Trial. 
 
 The Writ of Injunction is made out by the clerk 
 in court, upon the order being left with him ; and 
 must be personally served upon the defendant, his 
 solicitor, and attorney. It is served by showing it 
 under seal (a), and delivering a copy to the' party ; 
 the person serving it, is not bound to deliver the 
 writ itself to be compared with the copy (h). Though 
 the service ought to be personal, yet the court, as 
 in the case of service of a subpoena, will, under cir- 
 cumstances, dispense with personal service (c) ; thus 
 service of the order at the house which appeared to 
 be the defendant's last place of abode, was ordered 
 to be good service, though the house was apparently 
 shut up {d). 
 
 It has also been repeatedly determined, that, 
 where a party is in court, and hears the order pro- 
 nounced, he is as much bound as if he had been 
 actually served with the writ. Lord Hardwicke (e), 
 
 (o) And in general, service of the copy of an order is not good 
 without producing the original, unless the production be waived. 
 Wallis V. Glynn, 19 Ves. 380. Coop. 282. 
 
 {b) Woodward v. King, 2 Ch. Ca. 203. 
 
 (c) Holgate v. Grantham, Gary, 82. 
 
 (</) Pearce v. Crutchfield, 14 Ves. 206. 
 
 (e) Anon. 3 Atk. .567. Vide also Skip v. Harvvood, ib. 56'}.
 
 TO STAY PROCEEDINGS AT LAW. 
 
 67 
 
 observed, that there had been many instances, where A/f^-ci of the 
 
 ^ , Common in," 
 
 a defendant, or his attorney only (a), having been pre- junction, 
 sent upon an order for an injunction, and having 
 proceeded at law before it was sealed, that the 
 court had considered this as a contempt, and com- 
 mitted them for it. This practice, notwithstanding 
 some disapprobation of it from Lord Thurlow (^), 
 has not only been followed, but has been extended; 
 first, to the case of a party being in court during the 
 motion, but retiring before the order was actiiallij j^ro- 
 nounced; and secondl}'^, to a case where the defend- 
 ant's knowledge that the order had been pronounced, 
 proceeded solely from iiiformation^c) : in one case(c?). 
 Lord Eldon observed, that if the party admitted that 
 he believed the order was made, the principle was - 
 the same, as if his belief was formed, from informa- 
 tion short of actual service ; and that there would 
 be authority enough to apply the practice, if the 
 defendant would not swear, that he did not believe, the 
 order was proiioiinced. It had been objected, that 
 the solicitor might falsely represent that the order 
 had been made : his Lordship, however, considered 
 it a sufficient answer to that objection, that a solicitor 
 intimating that fact without foundation, would be 
 liable to be struck off the rolls, to make satisfaction 
 to the injured party, and to an indictment {e). 
 
 {a) Vide Bishop v. Jessop, Carj'^, 114'. 
 ih) Pengree v. Jonas, 2 Bro. C. C. Ml. 
 
 (c) Osborne (should be Hearne) v. Tenant, 11- Ves. 136. James 
 V. Downes, 18 Ves. 322. Scott v. Becher, l- Price, 352. 
 ((/) Kimpton v. Eve, 2 V. & B. 349. 
 
 (e) See also the cases where personal service, as a foundation 
 
 F 2
 
 68 
 
 TO STAY PROCEEDINGS AT LAW. 
 
 Kffcct of ill e 
 Common In- 
 jiuiction. 
 
 Effect of the 
 Conunon In- 
 junction in 
 the Ex- 
 cliequer. 
 
 Effect of the 
 Common In- 
 junction in 
 Chancery. 
 
 The Injunction issued for default of the defendant 
 cither in appearing or answering, is called the Com- 
 mon Inj line lion. The effect of this order is materially 
 different in the Court of Chancery from what it is in 
 the Court of Exchequer («). 
 
 According to the practice of the Exchequer, where 
 the cause of action arises in London, or within five 
 miles of it, at whatever period of the cause at law it 
 issues, the common injunction restrains the party 
 from all further proeeed'mgs (b). It is the same in a 
 country cause, where the bill is filed in Michaelmas 
 or Easter terms ; but in the two issuable terms, if 
 the plaintiff at law has so far proceeded in his action, 
 that he can compel a plea by entering up judgment 
 for want of it, he may proceed to join issue ; if not, 
 the injunction restrains him from proceeding further 
 in the action (c). 
 
 In the Court of Chancery, where a declaration 
 has not been delivered, the injunction restrains all 
 proeeedings xvhatever ; the principle being, that the 
 court, in favour of personal liberty, will not permit 
 the plaintiff at law, while under the imputation of 
 laches for not putting in his answer, to take the 
 person of his debtor immediately (V/) ; but where the 
 declaration has been delivered, the plaintiff at law 
 
 for process of contempt, has been dispensed with, Rider v. Kidder, 
 10 Ves. 202, De Manneville v. De Manneville, ib. 203. Henley 
 t. Brooke, and Edwards v. Poole, cit. ib. 
 {a) Vide post. Appendix V. VI. VIE 
 
 (b) 1 Fowl. Ex. Pr. 220. 
 
 (c) Ibid. 218, 219. 
 {d) 16 Ves. 113.
 
 TO STAY PROCEEDINGS AT LAW. 
 
 69 
 
 may proceed to trial, the injunction then only staying Effect of the 
 
 ^ N Co7ivnon In- 
 
 eaxcution {a). junction. 
 
 This distinction arises from a construction which 
 
 has been given to the followinc; clause, which is ^^''^'^ ^^^}^ ^ 
 
 o o ' ainoiuit to a 
 
 always inserted at the end of the writ which issues breach olthe 
 in the Court of Chancery : " But nevertheless the :un"tiou! 
 said defendant is at liberty to call for a plea, and to 
 proceed to trial thereon ; and for want of a plea 
 to enter up judgment, but execution is hereby 
 stayed {b)J' It has been contended, that by virtue 
 of this proviso, the delivery of a declaration was no 
 breach of the injunction ; and Lord Macclesfield 
 observed, that if it had not been for some resolutions 
 to the contrary, he should have thought so, since by 
 the very terms of the order, the plaintiff is at liberty 
 to proceed to trial j and the delivery of the declara- 
 tion, &c. is an incident, without which, there can 
 be no trial (c). The construction, however, has 
 always been, that it only applies to a person in a 
 condition to demand a plea; and that if the action at 
 law has not been commenced when the order for 
 the injunction is made, the plaintiff at law, notwith- 
 standing these words, is not at liberty to take any 
 step, which will enable him to demand a plea (r/). 
 
 It has also been determined, that the words ",/?>r 
 dejkult of plea,'* mean for default of an issuable 2)lca ; 
 and further, that as the plaintiff may, by the express 
 terms, try an issue on the Jact^ by the same reason 
 
 («) ITarr. Ch. Pr. 541. & Turn. Ch. Pr. 362. 
 {b) Post, Appendix V. VI. 
 (c) 3 P. W. 147. a. 
 
 {d) Sidney v. Hetherington, 3 P. W. 1 17. n. Biillcn v. Ovey, 
 16 Vcs. 141. Mills V. Cobby, 1 Mcriv. 3.
 
 70 TO STAY PROCEEDINGS AT LAW. 
 
 Effect of the he may try an issue at law. Accordingly where a 
 junction. defendant at law had put in a frivolous plea, to which 
 
 the defendant in equity had demurred, and obtained 
 
 judgment; it was contended, that this was a breach 
 of the injunction, it being only in one case, viz. ^^for 
 default of plea («)," that the defendant might enter up 
 judgment; and here it was said, there was no want 
 of a plea ; Lord Macclesfield, however, was clearly 
 of opinion that this was no contempt, since a frivolous 
 plea is as no plea (Ji). 
 
 The construction also given to the words " to enter 
 up judgmenf* has been, that they apply to 2^ fnal 
 judgment: all that the court intends to restrain is 
 Execution. The plaintiff may proceed so far, as 
 to be able to take out execution, the instant that 
 the injunction is dissolved ; therefore after an inter- 
 locutory judgment, as by default, or on demurrer, 
 the plaintiff at law may go on to ascertain his da- 
 mages (c). Where the defendant in equity had brought 
 an action against the plaintiff as executor, and on 
 plene administravit pleaded, took judgment de bonis 
 testatorts cum acciderint^ and aftervrards took out a 
 scire facias in order to inquire after assets; it was 
 said that the scire facias was in the nature of a new 
 action after judgment ; and that this was a breach of 
 the injunction, being a proceeding after judgment: 
 Lord King, however, held, that it was no breach, 
 being only a continuation of the old action on the 
 same record, and in the nature of a proceeding, 
 
 {a) Morris v. Hankey, 3 P. W. 146. 
 
 (Jb) Sidney v. Hetherington, 3 P. W. 147. n. 
 
 (c) 3 P. W. 147.
 
 TO STAY PROCEEDINGS AT LAW. 71 
 
 after an interlocutory judgment, to a final one («). Effect of the 
 
 All •• -i-i i-i.-ii. (-Common In- 
 
 And where an injunction having been obtained to j^^^^^.^^-^^_ 
 
 restrain the defendant from proceeding on an award — - - 
 
 for payment of money, which had been made a rule 
 of the court of King's Bench, the defendant applied 
 to that court for an attachment for non-performance 
 of tlie award, and obtained- a rule to show cause : 
 Lord Rosslyn was of opinion, that, by analogy to 
 the practice, wliich, where an action has been actually 
 commenced, permits a party to go on to trial and 
 judgment, and only stays execution; the making 
 the award, a rule of court, which had been done before 
 the injunction, was to be considered as the com- 
 mencement of the proceeding ; and that the defend- 
 ant might not only obtain a rule to show^ cause j but 
 might even have gone on to make his rule absolute, 
 without being guilty of a breach of the injunction, 
 provicled he did not execute the attachment (h). It is 
 scarcely necessary to cite a case, to show that it is 
 not a breach to show cause against a ride for a new 
 trial (c); but where an injunction had been obtained 
 to restrain the defendant from taking possession 
 under a verdict which he had obtained in ejectment, 
 and previous to the issuing the injunction, the costs 
 of the action had been taxed, and a writ of possession 
 executed : the ])laintiff at law having af terv.ards pro- 
 cured an attachment for non-payment of the costs 
 taxed, was considered by Lord Eldon as guilty of a 
 breach of the injunction (^/). But where, an injunc- 
 
 (a) Morrice v. Hankey, 3 P. W. M-6. 
 {b) Franco v. Franco, 2 Cox, 420. 
 
 (c) Whitniore v. Thornton, 3 Price, 231. 
 
 (d) Partington v. Booth, 3 Mcriv. liS.
 
 72 
 
 TO STAY PROCEEDINGS AT LAW. 
 
 Effect of the tion having been obtained by an obligor in a joint 
 
 Covinion In- ■, i i i , -n i • i i 
 
 and several bond upon a bill, to which the co- 
 
 junction. 
 
 Proceeding 
 against bail 
 or sheriff. 
 
 ol)ligor was not a party, execution was afterwards 
 taken out upon a joint judgment; but the obligee 
 gave notice to the sheriff of tlie injunction, and di- 
 rected him not to take the plaintiff in equity ; upon 
 the question whether this was a breach of the injunc- 
 tion, Lord Eldon observed, that when the motion 
 Avas first made, he thought it a breach ; that the writ 
 of execution given to the sheriff without any in- 
 structions, was, upon his receipt of it, a command 
 of the law to take the defendant ; and whether the 
 sheriff did or did not take him, it would be a pro- 
 ceeding : if, however, a direction was given to the 
 sheriff, not to proceed against the person of that 
 defendant, with notice of the injunction restraining 
 any proceedings against him ; that defendant was 
 named in the writ projbrmd, and <?<r necessitate ; and 
 it was in substance, a proceeding against the other 
 defendant only, and not a breach of the injunc- 
 tion (a). 
 
 It is stated in a case in Vernon (Z»), that an in- 
 juiiction does not prevent an entry: this is, how- 
 ever, denied by Lord Alvanley (c), and is obviously 
 erroneous. 
 
 It is now clearly settled, that any proceeding 
 either against the Bail or the Sheriff, is a breach of 
 the common injunction. This practice, which is 
 irregular, originated with Lord Thurlow (d), be- 
 
 (a) Chaplin-T'. Cooper, 1 V. &- B. 16. 
 
 (b) Tilley v. Bridge, 2 Vern. 519. 
 
 (c) Curtis V. Curtis, 2 Bro. C. C. 631. 
 
 (d) 3Meriv. 231.
 
 TO STAY PROCEEDINGS AT LAW. 73 
 
 fore that period the Bail or Sheriff were forced to Fffcd of the 
 file a bill. In a case, indeed, where bail had been jtll^"tion 
 
 put in below, and after tlie common injunction, the • 
 
 defendant took an assignment of the bail bond, and 
 was proceeding upon it ; Lord Hardwicke, upon a 
 motion to stay proceedings upon the bail bond, took 
 a distinction, that where bail is put in above, an in- 
 junction to stay })roceedings against the principal 
 extends to proceedings against the Bail, because 
 you cannot, in the case of bail above, proceed 
 against the Bail till you have against the principal ; 
 but he tliought it otherwise where bail is only put 
 in below, for there the plaintiff has his election to 
 proceed on the bail bond : his Lordship, however, 
 after some deliberation, granted the injunction (a). 
 This distinction seems now disregarded, and any 
 proceeding against the Bail is a breach of tlie com- 
 mon injunction (/>). 
 
 It is the same as to proceeding against the 
 Sheriff: thus after bail excepted to, ruling the 
 Sheriff to bring in the body (c), or to pay over 
 money levied by him (d), is a breach. It was also 
 determined by Lord Thurlow, that where an in- 
 junction lias been obtained after execution executed, 
 it is a breach to call upon the Sheriff to pay over 
 the money; though his Lordship added, that if the 
 Sheriff' voluntarily paid the money, he thought that 
 it would not have been a breach (c). So accord- 
 
 (a) Stone v. Tuffin, Amb. 32. 
 
 {b) Kennetu. Dalton, 1 Fowl, Ex, Pr. 230. Leonard r. AttwcII, 
 17 Ves. 385. Chaplin v. Cooper, 1 V. & B. 19. 
 
 (c) Bullen v. Ovey, 16 Ves. 141. 
 
 (d) Bolt V. Stanway, 2 Anst. 556. 
 (f) Auon. cit. o Mcriv. 231.
 
 74' TO STAY rilOCEEDINGS AT LAW. 
 
 FJfect of the ing to the modern practice, whereby the necessity 
 
 Cumnion In- ,. , . , .,, .^. . ,. , .., 
 
 ■junction. ^^ making the hlierm a party is dispensed with ; 
 
 ' *— — - Lord Eldon observed, that, if the goods were not 
 
 yet out of tlie hands of the Sheriff, if he proceeded 
 to sell without process, he would be ordered to 
 pay the money into court; and as the act of the 
 Sheriff cannot vary the rights of the parties, his 
 Lordship thought, that if he voluntarily paid over 
 the money, the party receiving it would be ordered 
 to pay it into court (a). 
 
 There is a decision upon this subject in the Ex- 
 chequer (^), where the doctrine was carried to a con- 
 siderable extent ; the authority of it has been strongly 
 questioned by Lord Eldon, but it is to be observed, 
 that it was in a case (c) where the point was not under 
 consideration; and the modern doctrine, though irre- 
 gular and unfounded in principle, was not recalled to 
 his Lordship's recollection. In the principal case, the 
 defendant had taken out execution, and the Sheriff 
 had levied before the injunction issued : the Sherifi' 
 refused to pay over the money levied, and the de- 
 fendant commenced an action against him for money 
 had and received to his use. Upon a motion for an 
 attachment against the defendant for this proceeding 
 as a breach of the injunction, it was contended that 
 the Slierifi' was not a party, nor was any injunction 
 prayed as to him ; that the application was too late, 
 for the Sheriff having levied, is bound immediately 
 to pay over, and had received for the defendant. The 
 court, however, said, that though the words of the 
 
 (a) PVanklyn v. Thomas, 3 3Ier. 234. 
 
 (b) Bolt V. Stanway, 2 Anstr. 556. 
 
 (c) Iveson r. Harris^ 7 Ves, 257.
 
 TO STAY PROCEEDINGS AT LAM'. 7^ 
 
 injunction were only against proceeding in the action Effect ofth^ 
 against the phuntiff, yet the clear meaning ot it was, j^,^^^/^;, 
 
 to prevent the defendant's having any benefit of that 
 
 suit, while the injunction subsisted. That the pro- 
 per mode of compelling a Sheriff to pay over the 
 money levied is by a rule against him : had that been 
 done, it would clearly have been a breach of the in- 
 junctiou. The circuitous and improper mode of suing 
 the Sheriff in a fresh action, could not, it was said, give 
 the defendant a better claim : that a sheriff' levying 
 goods is not a stranger to the suit : the writ under 
 which he levies, and the return to it, are parts of 
 the suit, and any mode of compelling him to make 
 snch return, or to complete the execution, was in 
 sense and spirit a proceeding in the action and a 
 violation of the injunction. 
 
 An injunction, however erroneously granted, is commitment 
 an order of court, and must be obeyed (a) ; if, there- ^"'" l>rt.>ach. 
 fore, the defendant or his attorney are guilty of a 
 breach of the injunction, it is a contempt which the 
 court will punish. The practice formerly was, that 
 upon affidavit of the service of the injunction, an 
 attachment issued for the breach of it. If the de- 
 fendant was arrested on the attachment, and entered 
 his appearance with tlie register, interrogatories were 
 filed and exhibited ao-ainst him, to which he must 
 
 CD ' 
 
 answer on oath : if he denied the service, the other 
 party might examine witnesses to prove it : if proved, 
 the court committed him, and made him pay all 
 costs and charges before he could be discharged {b), 
 
 {n) Woodward v. King, 2 Ch. Ca. 203. Marquis of Downshire 
 V. Lady Sandys, 6 Ves. 109, Partington v. Bootli, 3 Meriv. 119. 
 (i) Ilarr. Ch. Pr. 552.
 
 70 
 
 TO STAY TROCEEDINGS AT LAW. 
 
 Effect of the 
 Common In- 
 junction. 
 
 The modern j3ractice, however, is, where the party 
 is in contempt for breacli of the injunction, to give 
 notice of a motion, not that the defendant sliould 
 show cause why he should not be committed {a) ; 
 but that he may stand committed for breacli of the in- 
 junction, which is moved upon affidavit of the service 
 of the injunction. If the other side is not prepared 
 to defend the motion, the court usually gives a day 
 to show cause against it, and then upon hearing the 
 affidavits on both sides, decides whether the party 
 is guilty of the breach : if he be guilty, the court 
 makes an order for his commitment, and he will not 
 be discharged unless he pays the adverse party his 
 costs (^). But where the breach is not wilful or 
 contemptuous, the court is generally satisfied by 
 merely making the party pay the costs (c). 
 
 Cases in the 
 Exchequer 
 where the 
 plaintiff at 
 law is per- 
 mitted to 
 proceed to a 
 certain ex- 
 tent, not- 
 withstanding 
 the injunc- 
 tion. 
 
 It has been seen, that by the practice of the Court 
 of Exchequer, the injunction in many cases stays all 
 further proceedings, at whatever period of the cause 
 at law it may have issued. Cases, however, frequently 
 occur where, pending an injunction, the situation of 
 the plaintiff at law is such, as to induce that court to 
 permit him to proceed a certain length in his action, 
 notwithstanding the injunction. This however is 
 
 (a) 6 Ves. 488. 
 
 {})) Harr. Ch. Pr. 552. 
 
 (c) Bullen V. Ovey, 16 Ves. Ill, 
 
 385. Partington v. Booth, sup. 
 
 Leonard i'. Attwell, 17 Ves.
 
 TO STAY PROCEEDINGS AT LAW. 77 
 
 always done with a stay of execution (a). Thus, where W^<^t of^^^^ 
 the defendant upon putting in his answer hadobtauied junction. 
 the usual order, to dissolve the injunction unless 
 cause shown ; no exceptions were taken to the an- 
 swer, but the plaintiff, in order to keep the injunc- 
 tion alive, delayed the time of showing cause for a 
 week, undertaking then to show cause upon the 
 merits. As this delay, prevented the plaintiff at law, 
 from trying his cause in that term, so as to have 
 judgment of the term, the court granted a motion 
 for leave to give notice of trial notwithstanding the 
 injunction [h). And where a bill had been filed after 
 a verdict, in order to be relieved against it, and for 
 an injunction ; on the last day of the term, the de- 
 fendant having put in his answer, obtained the usual 
 order to dissolve, unless cause was shown at tlie 
 sittings, when exceptions were shown for cause, but 
 which by the course of the court could not be argued 
 until the following term, the court, upon motion, 
 permitted the defendant in the meantime to take his 
 costs, and enter up judgment at law, with a stay 
 of execution, notwithstanding the injunction (c). 
 Where the plaintiff in equity has brought a writ of 
 error on a judgment at law, the court u])on a motion 
 of course will grant an order that the defendant shall 
 be at liberty to proceed to non-pros the writ of error, 
 and affirm his judgment notwithstanding tlie in- 
 junction {d). 80 where an attachment had been 
 granted against the plaintiff in the King's Bench, 
 
 («) 1 Fowl. Ex. Pr. 290. 
 
 (b) Wallaw v. Wright, ib. 293. 
 
 (c) Ramlolpli v. Tombs, ib. 2fK). 
 {(1) Ib. 291.
 
 78 TO STAY PROCEEDINGS AT LAW. 
 
 Injunction to leave was given to the defendant to proceed to exa- 
 
 staij trial. . , . \ . ^ . • i i 
 
 ^ nnnc nim there upon interrogatories, notwithstand- 
 ing the injunction (a). But vvhere the answer has 
 come in so recently, that it could not appear, whether 
 it was full or not, the motion was refused (h). And 
 in general it will not be granted, unless some reason 
 be given, for dispensing with the ordinary rule ; there- 
 fore where a plaintiff at law, having proceeded so far 
 with his action that it might be tried at the sittings 
 after term, and presuming that the injunction would 
 be dissolved the last day of term when the plaintiff 
 in equity was to show cause, had applied to be per- 
 mitted to give notice of trial for the sittings after 
 term, the court refused the motion (c). 
 
 Common In- When the plaintiff in the Court of Chancery (or in 
 extended to ^^^^^c causes, in the Exchequer, where the injunc- 
 stay trial. tion does not stay all further proceedings) thinks, 
 that the discovery to be derived from the defendant's 
 answer, or from the depositions of witnesses abroad, 
 will be material to his defence at law, he must make 
 a special application to Stai/ Trial till the answer 
 comes in, or till the return of the commission. This 
 motion must be made on a notice specifying the 
 nature of the application : an affidavit of the ser- 
 vice of it must be made, and also an affidavit 
 
 (a) Simmons v. Mullins, Bmib. 182. 
 
 (6) Howes V. Griffin, ib. 
 
 (c) Royal Exchange Assurance Company v. Andre, ib. 292.
 
 TO STAY PROCEEDINGS AT LAW. 79 
 
 verifying the plaintiff's case, and stating his ex- hijunctionto 
 pectations of discovery from the defendant's an- "^^ 
 swer (rt). 
 
 Upon the principle upon which this motion is 
 usually granted, it was determined by the House of 
 Lords, in a case where the plaintiff applying for a 
 commission to examine witnesses abroad, appeared 
 from the facts of his case to be entitled to it ; that 
 although the answers of the defendants had come 
 in, yet that the plaintiff was entitled to the injunc- 
 tion to stay trial, till the return of the commission, as 
 a necessary consequence of his right to it (h). So 
 also where there were more defendants than one, 
 and the plaintiff stated in his affidavit that the an- 
 swer of the other defendants Avas material to his 
 defence at law, a motion to dissolve an injunction 
 to stay trial upon the coming in of the answer of 
 one of the defendants only, was refused with costs (c). 
 In a case in the Exchequer where an injunction had 
 been continued till the answers, of the only two 
 defendants who had not answered, should come in ; 
 one of them put in his answer, swearing that the 
 other knew little or nothing of the transaction, and 
 obtained the common order nisi to dissolve : this 
 order having been discharged for irregularity, a 
 motion was made three days afterwards that the de- 
 fendant who had answered might proceed to trial 
 notwithstanding the injunction ; but it appearing 
 that the defendant, who had not answered, was ma- 
 
 (rt) 1 Turn. Ch. Pr. 364-. 
 
 {h) Nichol V. Verelst, 7 Bro. P. C. 24-5. Ed. Tonil. vol. iv. il6. 
 
 (c) White V. Stcinwacks, 19 Ves. 81.
 
 80 or INJUNCTIONS IN GENERAL. 
 
 Ivjuuctiun to tcrially concerned in tlie transaction, the court said 
 
 ''' "'^ '^" ' lie ()ujj>'lit first to answer (a). 
 
 An answer filed, is a sufficient objection to tliis 
 motion j but where the defendant submitted to ex- 
 ceptions, the order was made ; an insufficient answer 
 being as no answer (^). 
 
 The motion cannot be made on the same day, or 
 at the same seal, with the motion for the common 
 injunction, which ought to be previously obtained (c). 
 The effect of granting such an application, as ob- 
 served by Lord Eldon, would be a surprise upon the 
 defendant, operating the utmost injustice ; for, ac- 
 cording to the present practice, he may reason thus, 
 that he has so many days to answer, and there must 
 be so many days before the trial : he will therefore 
 take more time, as the only inconvenience will be 
 that execution and not trial will be stayed, and be- 
 tween the two motions his answer will come in, and 
 he will get rid of the inconvenience of staying exe- 
 cution ; whereas in the mode contended for, it 
 might be said, that if he had known the effect of his 
 not putting in his answer sooner, it should have 
 come in. The defendant would thus be deprived of 
 the benefit of that diligence, which would have pre- 
 vented the first order [d). 
 
 But, if there are circumstances, which would render 
 the operation of this rule inequitable, an injunction 
 to stay trial will be granted, although the common 
 
 (a) Rowcroft v. Donaldson, 1 Fowl. Ex. Pr. 286. 
 {b) Bishton v. Birch, 1 V. & B. 36G. 
 
 (c) Wright V. Braine, 3 Bro. C. C. 87. 2 Cox, 232. Garlick 
 V. Pearson, 10 Ves. 150. 
 {(l) 10 Ves. 452.
 
 TO STAY PROCEEDINGS AT LAW. 81 
 
 injimction has not been obtained: as, where a demurrer Injunction to 
 had been put in, the argument of which had been "^ "-^ ^ ^" * 
 postponed, in consequence of the absence of the de- 
 fendant's counsel, and the defendant, upon its being 
 afterwards overruled, put in an answer, before the 
 plaintiff could move for the common injunction. 
 Upon a motion to restrain the defendant from going 
 to trial, supported by the affidavit of the plaintitFand 
 his solicitor, that it was impossible to obtain an 
 office copy of the answer in time to attend therewith 
 at the trial. Lord Eldon made the order, upon the 
 ground that if the demurrer had been argued at the 
 time when it stood in the paper, the plaintiff^ upon 
 its being overruled, might immediately have put 
 himself in possession of the common injunction, 
 and have regularly proceeded to extend it to stay 
 trial («). 
 
 There seems to have been great fluctuation in the Affidavits 
 practice, as to the nature and extent of the Affidavit "'^^t'ssary to 
 by which this application is to be supported. It the Common 
 
 was once said, that it oudit to state the specific I"J""ction 
 
 * ^ ^ to stay trial. 
 
 discovery ea'pected{b). This strictness was, however, 
 
 soon departed from, and succeeded by so great a 
 degree of laxity, that it became sufficient if the 
 plaintiff swore, that he was advised and believed, tJiat 
 he could not safelij i^roceed to a trial, until the defend- 
 ant had imt in his answer. This was understood to 
 be the usual form (c), and accordingly in a case in 
 the Exchequer, where the terms of the affidavit 
 
 («) Raphael v. Birchvood, 3 Meriv. 229. n. 
 
 {b) Hartley v. Hobson, 2 Dick. 728. Farrar v. Lewis, ib. 729. 
 
 (c) .Jones x\ , 8 Vcs. 4G. Partinjjjton v. IIob>;oii, IG Vc>. 
 
 220.
 
 8^ 
 
 TO STAY mOCEEDINGS AT LAW. 
 
 Ttijintctiim to wei'C, that tlie plaintiff expects that the answer will 
 
 disclose a material discovery, and is advised that he 
 
 cannot safely go to trial without it, the court held 
 the affidavit insufficient, merely on the ground that 
 the word expect^ was substituted, for the usual term 
 believe {a). In one case it was even granted upon so 
 slight an affidavit, as that the plaintiff is advised and 
 believes, that important discovery may he obtained 
 from the defendanfs ansxver, xvhich, if a trite ansicer, 
 will enable plaintiff to defend himself at law [b). Lord 
 Thurlow put one limitation upon the rule, holding, 
 that although this affidavit was generally sufficient, 
 yet, if the defendant xvas abroad^ that it should state a 
 special ground to show, that the discovery required 
 from him was material (c), and there were instances, 
 in which Lord llosslyn refused the application, be- 
 cause the affidavit did not state, that the plaintiff 
 expected that the discovery would be material {d). 
 The practice, how^ever, continued so unsettled, that 
 so late as the case of Partington v, Hobson (e), the 
 application was granted upon the old form, that the 
 plaintiff is advised and believes that he cannot safely 
 go to trial until the answer. In the case, however, of 
 Appleyard v. Seton (f), which occurred a few days 
 afterwards. Lord Eldon, upon re-considering the sub- 
 ject, said, that the old practice was wrong, and ought 
 
 (a) Rix V. Zang, cit. 16 Ves.221. 
 (6) Nelthorpe v. Law, 13 Ves. f523. 
 
 (c) Revet v. Braham, 2 Bro. C. C. 640. Wright v. Braine, 3 
 C. C. 87. 2 Cox, 232. 
 {d) 16 Ves. 222. 
 (r) 16 Ves. 220. 
 (/) lb. 223.
 
 TO STAY TROCEEDIXCS AT LAW. 83 
 
 to be altered. That the plaintiff's stating, that he Injunction to 
 cannot safely go to trial without the answer, is not '^^ 
 enough, as it may be true that he cannot safely go to 
 trial either with or without the answer : that he ought 
 to state that he believes that the answer will furnish 
 discovery 7naterial to his defence in the action. 
 
 The doctrine thus established has been since re- 
 cognized and approved by several cases (r/), in one 
 of which the principle is thus stated by Lord Eldon. 
 " The plaintiff states by affidavit that he is advised 
 and verily believes he cannot safely go to trial with- 
 out the answer ; and proceeds to aver tliat he verily . 
 believes the answer will produce discovery material to \ 
 the just trial of the action. The court never exa- 
 mines how far that affidavit is well founded, except 
 to this extent, that if the defendant alleges that the 
 plaintiff has by his bill stated a case, which, ad- 
 mitting the whole to be true, would not introduce 
 evidence or a discovery that could possibly be ma- 
 terial at the trial: the injunction, as it could be of 
 no use to the plaintifl', woidd not be granted under 
 such circumstances. On the other hand, if the an- 
 swer, supposing it to admit the facts alleged by the 
 bill, will produce what may be material, the court 
 does not go into the consideration how far it may 
 have effect, as the defendant at law may have a great 
 deal of other evidence than that of which the bill 
 seeks a discovery ; and the whole may be taken to- 
 gether ; in other words, the court trusts the affichu it 
 of the plaintiff instead of itself trying the merits at 
 
 («) Earnsliaw v. Thornhill, 18 Vcs. ISS. White v. Stcinwacks, 
 19 Vcs. 81-. Bishtoii V. Birch, 2 V. c'v: V,. 41. 
 
 G 2
 
 i^i TO STAY riJOCEKDINCS AT I,AW. 
 
 Injunction to lnw, uiiloss it appcai's clearly on the face of the bill 
 .s aij iifi . ^jj,^^ ^jj^ discovery will be immaterial («).'* 
 
 The subject has since undergone much discussion 
 in some recent cases before JSir J. Leach, in vvhich 
 his Honour, though he considered himself bound by 
 the precedent in Appleyard v. Seton, expressed a 
 wish to see still greater strictness, in the form of the 
 afHdavit. He thought that it ought not only to state, 
 that the discovery expected from the answer, will be 
 material to the plaintiff's defence, but that the plain- 
 tiff should swear that he believes that the answer, 
 together with the other evidence to be adduced, 
 would constitute a good defence at law (/;). Mr. Bell 
 observed, that he understood that the present opinion 
 of Lord Eldon vras the same : it will therefore be 
 safer in practice to frame the affidavit, if possible, 
 accordingly. 
 
 It has already been noticed, that after a decree 
 for the administration of assets, the court will ex- 
 tend the common injunction against a creditor pro- 
 ceeding at law to stay trial without requiring an 
 affidavit (c). 
 
 It is no objection that the affidavit was filed only the 
 day before the motion, it being one of those affidavits 
 which cannot be answered (^). But if the applica- 
 tion is made immediately before the assizes, or if 
 there has been any laches on the part of the plaintiff 
 in equity, it will be refused. Thus where the action 
 was brought in September, and the commission day 
 
 (rt) 19 Vcs. Si, 85. 
 
 {b) Killing v. Killing, 21 June, 1820. 
 
 (c) Ante, p. '.Vl. 
 
 {(1) Jones V. , 8 \'es. iC).
 
 TO STAY PROCEEDINGS AT LAW. 85 
 
 at Lancaster being on the 18tli of March, the motion Injuiicii:<n lo 
 by a continuation of the general seal v/as made on * "-'^ 
 the IDth, Lord Erskine refused the application, the 
 defendant having declined to give security for the 
 costs (a). In another case, an action had been com- 
 menced in 181(), and tlie plaintiff in July, 18 17, 
 obtained a verdict, and a new trial having been 
 ordered on the "^Ist of January, 1818, on the 9tli 
 I'ebruary the defendant at law filed a bill for the 
 [)roduction of documents (which he had given notice 
 to the plaintiff to produce at the trial, but which 
 were not then produced), and obtained the common ' 
 injunction. The commission day at York was on 
 the 7th of March, and on the ^2Sth of February a 
 motion was made before Sir J. Leach to extend the 
 injunction to stay trial, which his Honour upon the 
 ground of the delay, and the trial being so near, 
 refused with costs (/-'). This motion on being brought 
 on appeal before Lord Eldon, received a similar 
 decision (r). 
 
 If the plaintiff in equity requires tiie testimony of Commission 
 witnesses residing abroad iii defence of the action „ it^^.'s!," j'^ 
 at law, a commission for that purpose will be granted abroad. 
 iq)on motion. An affidaxit is necessary, similar to 
 that required upon the motion to stay trial till after 
 the defendant's answer (r/). 
 
 In consequence of the difference in the practice of 
 
 (a) Blacoc v. Wilkinson, l'.'> ^'es. i51'. 
 {0} Field V. UL-aiunoiit, .S Madd. lO'J. 
 (t) I Swan^l. '20 1.
 
 86 
 
 TO STAY PUOCKEDINGS AT LAW. 
 
 Commission 
 to examine 
 tviin esses 
 abroad. 
 
 tlie two (touits, a distinction prevails as to the period 
 of the cause in which this motion must be made. In 
 the Exchequer, it cannot be made, till rifter answered) : 
 in tlie Court of Chancery, on the other hand, when 
 the object of the suit is merely to obtain evidence 
 for an action, it will be granted before ans'a'er(b). 
 
 There are two cases in which it appears that a com- 
 mission was ordered before answer, where the bill not 
 only prayed a commission to examine witnesses, but 
 also equitable relief (c). Lord Eldon has, however, ac- 
 counted for these orders, as being made in cases of that 
 description, in which the equitable relief, although 
 prayed, is never finally given ; the one being an action 
 for freight, the other upon policies of insurance (^). 
 Causes of this nature are extremely common in the 
 Exchequer, upon the form of the record, indeed, 
 cases for equitable relief (the bill representing the 
 policy to have been obtained by misrepresentation, 
 &c. and praying that it may be declared void, and 
 may be delivered up ;) but when the discovery, and 
 the examination of witnesses abroad, have been ob- 
 tained, instead of proceeding to a hearing, the prac- 
 tice is, that the court hears no more of it, except by 
 a motion to dissolve the injunction, the party having 
 the means of satisfactorily trying the cause at law (e). 
 
 It does not appear from either of the reports of 
 Noble V. Garland, M^hether the defendant was in 
 contempt : in the other two cases before Lord Eldon, 
 
 (a) Lowther v. Whorwood, Bimb, I'iO. Drummond v. Ohlsen, 
 2 Fowl. Ex. Pr. 63. 
 
 (b) Noble V. Garland, 19 Ves. 372. Coop. 222. 
 
 (c) Foderingham v. Wilson, ib. n. Yates v. Barker, ib. 
 
 (d) 19 Ves. 377. 
 
 (e) Ibid. 376.
 
 TO STAY PROCEEDINGS AT LAW. 87 
 
 an injunction liad been obtained for want of an Commission 
 
 • \ ^^ cxamitic 
 
 answer. It has been laid down in a recent case, by xdtnesses 
 Sir J. Leach, tliat this motion cannot be made unless «^'"o«f^- 
 the defendant is in contempt, or has answered. His 
 Honour said, that until the defendant had answered, 
 there was no issue tendered in the cause, nor any 
 matter in dispute between the parties ; and there- 
 fore that previous depositions were in the nature 
 of voluntary affidavits : but that if the defendant 
 was in contempt, the plaintiff* should, notwithstand- 
 ing, have his commission; for otherwise he might 
 lose his testimony by the default of the defendant [a). 
 
 Upon this motion it is necessary that some wit- 
 ness, whom it is intended to examine, should be 
 named; unless the party moving, is plaintiff, botli 
 at law and equity, and therefore moving in his own 
 delay (b). Mr. Fowler mentions a motion lor a 
 commission to examine witnesses in America, with- 
 out prejudice to an injunction ; but as tlie affidavit 
 did not name any of the witnesses, nor the point of 1 
 evidence to which they could depose, nor that the \ 
 witnesses were aged and infirm, and not likely to 
 live until an examination could take place, the motion 
 was refused with costs (c). 
 
 It has been stated to be the practice in the Ex- 
 chequer, that a commission will not be granted, 
 pending an injunction, unless the money be paid into 
 court ; but this is not required in the Court of Chan- 
 cery {d). 
 
 («) King V. Allen, 4- Mad. 217. 
 
 {b) Bcrthoud v. Cousins, 2 TowLEx. Pr. 6n. 
 
 (t) Kensington v. White, 2 Fowl. lix. Pr. SI. 
 
 (^/) Cock V. J^onovun, o V. li' B. 76.
 
 88 TO STAY IMIOCF.EDJNGS AT LAW. 
 
 Motion to 
 dissolve. 
 
 CHAPTER V. 
 
 Of the Motion to dissolve Injunctions to stay Proceedings 
 at Law, and what Cause may be shown against it. 
 
 in-e<^uhr!t WiiEiiE ail injunction has issued irregularly, the 
 
 in the order, defendant is entitled to have the order discharged ; 
 * but any act of his founded upon it, is a waver of the 
 irregularity, and an affirmance of the existence of a 
 regular injunction («). It has accordingly been de- 
 termined, that a defect in the injunction mil be 
 cured, by the defendant putting in his answer, and 
 moving to dissolve (Ji) : but irregularity is not waved 
 by merely moving for time to answer (c). 
 Injunction As soon as the defendant has put in his answer, he 
 
 cannot be . • i i t t T • • 
 
 dissolved be- 1^ entitled to movc to dissolve the injunction, unless 
 tore answer, cause is shown to the contrary. Upon this motion 
 it is immaterial how long the answer has been in 
 before the motion, as the plaintiff has a day to show 
 cause given him (d). The motion cannot be made 
 before a?isxver; it was attempted in a case in the 
 Exchequer, where the plaintiff at law resided abroad, 
 and it was proposed by his counsel to read an affidavit- 
 in su})port of the motion, but the court refused the 
 application (e). 
 
 (a) 2 Ves. 22. 
 
 (b) Davile r. Peacock, Barnard. Ch. Rep. 27. 
 
 (c) Travers v. Lord Stafford, 2 Ves. 20. 
 {d) 2 V. & B. 42. 
 
 (f) Snow V. Cameron, 1 Fowl. Ex. Pr. 282.
 
 TO STAY PROCEEDINGS AT LAW. 89 
 
 If the injunction has been obtained upon an at- ]\Iotio7i to 
 tachment for want of appearance or answer, the ^^^^^^^ 
 
 defendant's clerk in court should pay or tender the Costs of at- 
 costs of the attachment to the plaintiff's clerk in J^^!,'"'ij^"'flrst 
 court, which are ten shillings ; and as soon as the paid, 
 answer is filed he may move that the injunction be 
 dissolved, unless the plaintiff or his clerk in court, 
 having notice thereof, show to the court good cause 
 to the contrary («). There is a note of a case in 
 Bunbury, in which an injunction was continued, be- 
 cause the defendant had not signed his answer (b). 
 
 This motion, though a motion of course (c), can. How moved, 
 it is said, only be made in open court (d), and the 
 brief of it must be put into counsel's hands, not 
 later than the first day of the seal, and therefore an 
 order obtained, where this has not been done, will 
 be discharged with costs for irregularity (e). 
 
 If there are several defendants, the court will, in if several 
 general, not dissolve the in] unction, till all have an- tlefendants, 
 
 " ^ ^ injunction 
 
 swered (f). However, where a bill is brought will not be 
 against a cestiiy que trust and trustee, and the trustee ^iThave' 
 will not answer, it is not uncommon to dissolve the answered. 
 injunction on the motion of the cestuy que trust (^). 
 
 There is an instance also, of an exception to , 
 this rule, in a case before Lord Eldon. An in- \ 
 junction had been obtained to restrain several de- \ 
 
 (a) Harrison, Ch. Pr. 54-7. 1 Fowl. Ex. Pr. 283. 
 ib) Anon. Bunb. 251. 
 
 (c) 1 Turn. Ch. Pr. 370. 1 Fowl. Ex. Pr. 283. 
 {d) 2 V. & B. 413. 
 (e) Sharp u. Ashton, 2 V. c^- B. 112. 
 
 {/) \Vy. Pr. Reg. 234. Bohenie v. Porter, Barnard. Cli. Kcp. 
 352. Uowcroft v. DonaUUon, 1 Fow 1. Ex. Pr. 28C). 
 (o) Mose, 355.
 
 yO TO STAY rilOCKKDINGS AT LAW. 
 
 Motion to fcndants, consisting of the assignees of some bank- 
 |j^^^^^J^^]___ nipt partners, and the partners remaining solvent, 
 from proceeding at law upon a verdict which they 
 had obtained. The solvent partners having put 
 in their answer, had obtained the common order 
 7iisi, although the other defendants had not an- 
 swered. Lord Eldon was of opinion, that cases might 
 exist, where the circumstance of some of the de- 
 fendants not having put in their answer, would not 
 be a sufficient ground against dissolving the injunc- 
 tion. His Lordship, however, did not determine it 
 then, as exceptions were taken to the answer. The 
 solvent partners afterwards put in a further answer, 
 and the assignees put in their answer, to which ex- 
 ceptions were taken. The solvent partners after- 
 wards obtained an order nisi to dissolve the injunc- 
 tion 07ili/ as against them^ which was made absolute. 
 They then obtained an order nisi for dissolving the 
 injunction against all the defendants^ although the 
 assignees had not put in their further answer to the 
 exceptions, and Lord Eldon, upon the motion to make 
 that order absolute, declared his opinion, that it was 
 competent for the solvent partners to make this 
 motion, but that the injunction could not be dis- 
 solved, pending the exceptions to the answer of the 
 assignees («). 
 
 There is a singular case reported in Moseley (b) of 
 a motion, to dissolve an injunction against a trustee, 
 made by a cestuy que trust, who was no party to the 
 cause, but which seems justified by the collusion of 
 the trustee with the plaintiff in equity. Lord Delvin 
 
 (rt) Joseph V. Doublcday, 1 V. & B. 497. 
 (b) Lord Delvin v. i^inythj Mose. 351.
 
 TO STAY PROCEEDINGS AT LAW. 91 
 
 executed a bond for 400/. to Smyth, a banker at Motion to 
 Paris. Smyth assigned it for valuable consideration '■ ^ ^^ • 
 
 to Creagh, of which Lord Delvin had notice. Creagh 
 having brought an action in the name of Smyth, and 
 having obtained a verdict upon the bond. Lord Delvin 
 filed a bill against Smyth, suggesting that Smyth was 
 more indebted to him on account, than the money 
 due on the bond, and obtained the common injunc- 
 tion. Lord Delvin liaving obtained an order to 
 amend, but having lain by for a twelvemonth, Creagh 
 brought a bill charging collusion between Lord 
 Delvin and Smyth, who was only his trustee, and 
 that Lord Delvin did not make him a party, though 
 he had notice of the assignment. Creagh moved to 
 dissolve the injunction in the cause of Lord Delvin 
 "v. Smyth, and though it was objected that this w^as 
 a motion by one who was no party to the cause, and 
 that Creagh should have taken care to get in the 
 answer of Smyth, his trustee, yet Sir J. Jekyll, upon 
 the ground of the collusion between Lord Delvin 
 and Smyth, which was insufficiently denied in the 
 answer of the former, and upon affidavits of over- 
 tures of satisfaction and payment by instalments 
 made to Creagh by Lord Delvin, dissolved the in- 
 junction, upon the terms of Creagh giving security 
 to appear to the original bill if Lord Delvin would 
 make him a party, and abide the order of the court 
 at the hearing. 
 
 It has been stated in argument at the bar, that Whether, 
 
 where hank- 
 
 although a bankrupt has no interest, the plaintiff is ^ |^ ^^'^.^^^ 
 entitled to brins: him before the court, and have his a narty to a 
 
 ^. , . . . . bill ai^ainst 
 
 answer; that, it necessary to obtaui an uijunction his assignees;, 
 a«>'ainst assia-nees,the ulainlill'may make the l)anlvnii)t '"' '"J"''^; 
 
 '^ ^ ^ ^ '> *■ don will he
 
 92 TO STAY PROCEEDINGS AT LAW. 
 
 Motion to a party ; and the court will not, on the answer of the 
 " assignees that they know nothing of the matter, dis- 
 
 dissolved be- solvc the injunction, which is retained until the bank- 
 swcr ^'^n^'>" I'l'P^ 's answer comes in, which, it was said, might be 
 in. read against the assignees in support of the injunc- 
 
 tion, though perhaps not at the hearing (a). This, 
 which was stated to be the current opinion of the bar, 
 receives confirmation from the doctrine, laid down by 
 Lord Redesdale, as follows : " A bankrupt made a 
 party to a bill against his assignees, touching his estate, 
 may demur to the relief, all his interest being trans- 
 ferred to his assignees, but it seems to have been 
 generally understood, that if any discovery is sought 
 of his acts before he becomes a bankrupt, he must 
 answer to that part of the bill for the sake of dis- 
 covery, and to assist the plaintiff in obtaining proof, 
 though his answer cannot be read against his as- 
 signees, and otherwise the bankruptcy might entirely 
 defeat justice (^)." Sir T. Plumer, also, observed, 
 that there was great convenience in the doctrine 
 stated at the bar, as in such a case all the transac- 
 tion may be known to the bankrupt alone, and the 
 party seeking relief would be entirely deprived of 
 it, as far as regards the injunction, if a discovery 
 could not be obtained, from the only party having a 
 knowledge of the transaction (c). The question, 
 however, remains in doubt, as the dicta and authorities 
 are at variance. His Honour, in the above cited case, 
 after an elaborate review of the doctrine, noticed the 
 difficulty of conceiving how a bankrupt's answer could 
 
 (a) 1 V. & B. 5i6. 
 
 {b) Tr. Ch. PI. 142, 1 13. 
 
 (r) Whitworth v. Davit, 2 V. c^- 13. 51,5.
 
 TO STAY PROCEEDINGS AT LAW. 93 
 
 be read against his assignees even for the purpose of Motion to 
 an injunction, where it coukl clearly not be read ' 
 
 against them at the hearing ; and at the same time 
 expressed an opinion (though, as it was not necessary 
 for the decision of the case, he stated it merely as the 
 result of his inquiries, and not as opposing his opinion 
 to the prevailing practice), that a bankrupt was not 
 one of those persons included in the exception to the , 
 general rule, that a mere witness cannot be made a ! 
 party to a suit. And the point has been determined 
 in the Exchequer upon a demurrer by a bankrupt to 
 a bill for a discovery, in aid of an action at law, and 
 for an injunction in the mean time (a). 
 
 It may here be noticed, that, if an order has been Order to 
 obtained extending the common injunction to stay J.^jf,J^J,'j'^jj, 
 trial, this order cannot be discharged separately discharged 
 upon the coming in of the answer, and the injunc- ^^P^^'^ ^^ 
 tion be dissolved, so far as it extends to stay trial 
 only. In an application for this purpose it was con- 
 tended that this was a distinct substantive order, 
 obtained upon affidavit, and that the plaintiff having 
 gained the discovery he sought, ought not to refuse 
 to go to trial. Lord Eldon, however, observed, 
 that the order, w4th reference to the future progress 
 of the cause, put the plaintiff at law in precisely the 
 same situation as if the bill had been filed before the 
 action commenced; that the practice ought to be 
 kept whole. It might be just as inconvenient not 
 to be permitted to commence an action, as to be 
 restrained from proceeding in it ; and, that, as in the 
 one case, the })laintiff at law was not at liberty to 
 
 (fl) Griffin v. Archer, '1 Aiist. ITS.
 
 94< TO STAY PROCEEDINGS AT LAW. 
 
 Motion'io commence an action, so in the present case, he ouglit 
 '^^^^^'^^"'' not to be permitted to proceed to trial, until the 
 sufficiency of the answer was proved in the usual 
 way, viz. by the order 7im, subject to showing ex- 
 ceptions for cause, or cause upon the merits (a) : 
 in a subsequent case his Lordship expressed a similar 
 opinion (b). Lord Eldon, in these cases, laid great 
 stress upon the circumstance, that among the numer- 
 ous cases that had occurred of injunctions extended 
 to stay trial, he did not recollect, either in the books, 
 or in practice, a single instance of an application to 
 dissolve an injunction so far as it restrained the 
 trial, distinct from an application to dissolve it 
 generally (c). Where a special injunction has been 
 granted, after aiisxver, restraining the defendant from 
 proceeding to trial till the further order of the court. 
 
 [a) Earnshaw v. Thornhill, 18 Ves. 485. 
 
 {b) Bishton v. Birch, 2 V. & B. 40. 
 
 (c) The author has remarked a case, cited for another purpose 
 from the Register book, in which such an appHcation appears to 
 have been granted. Although it cannot shake the authority of 
 these determinations of Lord Eldon, founded, as they are, upon 
 the soundest reason, yet it may not be irrelevant to notice it. 
 The plaintiffs had obtained the common injunction, on the 3d of 
 Februaiy, 1738, which was a Saturday: the defendant not having 
 put in his answer, they moved to extend the injunction to stay 
 trial J but the defendant's counsel stating that the answer would 
 be put in on Monday, the court made no order. On the 6th of 
 February, the answer not having been put in, the plaintiffs renewed 
 the motion, which was granted. On the 12th, the defendant having 
 put in his answer, moved to discharge that order only, which, 
 upon hearing the plaintiff's counsel, and the defendant's answer 
 read, was discharged accordingly. Royal Exchange Assurance v. 
 Barker, 1 V. & B. 367.
 
 TO STAY PROCEEDINGS AT LAW. 95 
 
 there can be no objection to the injunction being Motion to 
 dissolved so far as it extends to stay trial only («). ' 
 
 The Order 7iisi must be entered and drawn up, Order «/«. 
 and served on tlie plaintiff's clerk in court. If on 
 the day appointed to show cause, no cause is shown, 
 the injunction will be dissolved of course, on motion, / 
 
 and production of an affidavit of service of the / 
 order (/>»). The time within which cause is to be / 
 shown is four days, but the plaintiff is usually in- 
 dulged with a short time upon his undertaking not 
 to except, but to show cause upon the merits. 
 
 The reason why this is an order 7iisi, is, not that the 
 plaintifl' may have time generally, but merely that he 
 may have time to look into the answer, and consider 
 whether he will take exceptions or show cause upon 
 the merits. It has, therefore, been decided where 
 exceptions have been taken, and the answer has been 
 found sufficient, that it is not necessary again to 
 obtain the order nisi, the defendant may then move 
 to dissolve the injunction in the first instance j as 
 it is plain that from taking the exceptions, he has 
 already obtained the necessary information (c). Lord 
 Eldon, in anotlier case which has been already noticed 
 upon another point, considered the plaintiff, who had 
 taken exceptions, as having precluded himself from 
 the benefit of the order 7nsi (d). 
 
 {a) Raphael v. Birdwood, 1 Swa. 228. 
 
 (b) Harrison, Ch. Pr. 5t7. 
 
 (c) Lacy v. Hornby, 2 V. & B. 291. 
 id) Bishton v. Birch, 2 \'. 6: B. ii.
 
 {)G TO STAY rilOCEEDINGS AT LAW. 
 
 Cause If a plea is ordered to stand for an answer, witli 
 
 aolvivo: ' li^t!rty to except, the defendant cannot move to dis- 
 
 solve the injunction absolutely; he can only move, as 
 
 upon coming in of an answer, that it may be dissolved 
 nisi (a). But if a plea is allowed, he may move to 
 dissolve absolutely in the first instance (b). 
 
 nencc. 
 
 The plaintiff may show for cause against dissolving 
 the injunction, 
 J^P*^J*'' 1st, That the answ^er is Impertinent The early 
 
 decisions, both of Lord Thurlow and Lord Kenyon 
 upon this point, were to the contrary (c). It has, 
 however, been since repeatedly determined, both in 
 the court of Chancery and in the Exchequer, that 
 a reference of the answer for Impertinence is good 
 cause (6?); for as exceptions taken to the answer wave 
 the objections for impertinence, there must be a 
 judgment upon the reference for impertinence, be- 
 fore there can be a judgment upon the reference for 
 insufficiency : as the court does not know what the 
 answ^er is, until the question of impertinence has been 
 disposed of {e). As exceptions may therefore be 
 
 (a) Osborn v. Cowper, Mose, 198. 
 
 (h) Phillips v. Langham, cit. 2 Dick. 537. 
 
 (c) Milner v. Golding, 2 Dick. 672. Henry v. , ib, 
 
 (d) Kenny v. Barnwell, 2 Cox, 26. Hurst v. Thomas, 2 Anst. 
 591. Swayne v. Mills, 1 Fowl. 277. Shendon v. Carpenter, cit. 
 12 Ves. 18. Fisher v. Bayley, ib. Goodinge v. Woodham, 14 
 Ves.534. 
 
 (e) And till lately the answer might be referred to different 
 Masters, one of whom might strike out great part of the answer
 
 TO STAY PROCEEDINGS AT LAW. 97 
 
 shown for cause, all proceedings necessarily pre- Cause 
 ceding tnem must also be siimcient cause [a]. Ine solvm<r. 
 
 plaintiff is usually put upon the terms of obtaining 
 
 the report in four days (^), or sometimes a week (c). 
 It is not necessary that the order for referring the 
 answer should be previously obtained ; the motion 
 for the reference may be made at the time of showing 
 cause : the court will not presume that the order will 
 not be drawn up, and if any unnecessary delay should 
 take place, the defendant may apply to the court {d). 
 If tlie Master reports the answer to be notimjjertinenif 
 the injunction is gone, and exceptions to his report 
 cannot be shown as cause against dissolving (e). 
 In the late case of Raphael v. Birdwood (fj, Lord 
 Eldon observed, that the Master's judgment on the 
 question of impertinence must, at least without refer- 
 ence to the inquiry whether there is further imper- 
 tinence, be taken in injunction cases to have the same 
 weight as liis judgment with regard to sufficiency or 
 
 as impertinent, while the other thinking that not impertinent, 
 would consider the question as to the sufficiency of the answer, 
 
 upon the notion that all would stand part of it. Pellew v. , 
 
 6 Ves. 456. Thomas v. , 14- Ves. 537. Goodinge v. Woodham, 
 
 ib. 536. Lacy v. Hornby, 2 V. Sc B. 293. This, however, has been 
 remedied by a late order of court, directing that all refercMucs of 
 answers shall be made to the same Master. 10 March. 1818. 
 1 Swanst. 128, 
 
 (a) 12 Ves. 19. 
 
 (b) 4. Mad. 2.37. 
 
 (c) 14. Ves. 534. 
 {d) 14 Ves. 536. 
 
 (<?) Corson V. Stirling. Coop. '■J.'>. 
 (f) 1 Swanst. 22S. 
 
 JI
 
 98 'lo srw i'i?o(KKi)iNc;s at law. 
 
 i'niise iiisuniciency ; and as with regard to suflicieiicy liis 
 
 x'olviuo. rc;))()rt tcrniinated the injunction, although the court 
 
 afterwards differed from him ; his report on im})er- 
 
 tinence (without reference to the question wliether 
 tliere was fartlier impertinence), must impose on 
 tlie plaintiff an obligation to except for insufficiency 
 immediately. 
 
 This subject was discussed in the late case of 
 Dansey v. Brown (a), where the plaintiff having been 
 put upon the terms of obtaining the report within 
 four days, and the report not having been obtained 
 within that time, the injunction was dissolved ; the 
 Master having afterwards reported that the answer 
 was impertinent, a motion was made to revive ; and it 
 w^as contended that, by analogy to the rule, that where 
 an answer is reported to be insufficient, the plaintiil' 
 may move to revive, the same thing might be done 
 where the answer is reported impertinent. It was said, 
 on the other side, that it was the duty of the plaintiff* 
 to move to expunge the impertinence ; that the in- 
 junction was not to be revived, and the plaintiff* to 
 be at liberty, for an unlimited period, to pre\ent the 
 defendant moving to dissolve, merely because the 
 plaintiff had not expunged the impertinence ; after 
 which the plaintiff might move to refer the answer 
 for insufficiency. Sir J. Leach observed, that although 
 if an answer be reported insufficient, the party might 
 immediately put in a further answer, and again mo^•e 
 to dissolve ; yet if an answer \vas reported imper- 
 iiucnl^ the defendant had no means of immediately 
 proceeding, but was in the power of the plaintiff, 
 
 («) \ :Macl. 237.
 
 TO STAY PROCEEDINGS AT LAW. 99 
 
 who alone could move to expunge the impertinence, f^'^^ife 
 
 TT- TT T 1 1 1 1 1 1 • • • ocrainst dis- 
 
 tils Honour accordingly held, that the mjunction sol-dn^r, 
 
 could not be revived on the ground of impertinence. 
 
 It must, however, be observed, that great part of 
 the argument upon which this decision is founded, 
 is taken away by a determination in a case, which 
 was unfortunately not citetl on tliat occasion. It 
 was there determined, that although, pending the 
 reference, the defendant could not move to dissolve, 
 since at that time it could not appear what part of 
 the answer was to remain on record, yet that, as 
 the Master's report pointed out the impertinent 
 matter, it was not necessary to have it actually e.v- 
 punged before the order was moved for (<7). 
 
 The abov^e decisions only relate to references for Scmulai. 
 Impertinence ; there is no determination as to the 
 effect of a reference for Scandal alone. There is, 
 indeed, a difference between the two, as a reference 
 for scandal may be obtained in any stage of tlie pro- 
 ceedings, and is not waived, like a reference for im- 
 pertinence, by a reference for insufficiency. It is, 
 liowever, generally understood that a reference for 
 scandal alone, is sufficient cause against dissolving 
 an injunction. 
 
 2dly. Tlie plaintiff may show for cause, that lie Extoiitions, 
 has taken Eixeptioiis to the answer. 
 
 It is generally laid down, that the exceptions ought 
 to be actually filed (/^). But, though a mere allega- 
 tion that the answer is insufficient, is not a ground 
 to continue an injunction (c), yet the court will allow 
 
 {n) Kenny r. Baniuell, '2 Cox, 'li\. 
 
 {/>) Wv. Vv. Krg. 'ill. 1 Tinii. Ch. IV. .'CI- 
 
 (c) 1 Vi«s. l.-,!.. 
 
 11 JJ
 
 TOO TO STAY I'T?OCEEDINC;S AT LAW. 
 
 I'niise excerptions to 1)0 sliowii for cause, thoii^li none are 
 
 'lolvinir."' aclually on the file, upon the plaintiff's undertaking 
 
 to tile tlieni innnediately [a). 
 
 When to he Jn tJie Court of Chancery exceptions must be filed, 
 where the answer has been filed ni term, either m 
 the same term or within eight days afterwards ; if 
 tlie answer lias been filed in vacation, within eight 
 days after the beginning of the following term (/>). 
 In the Exchequer the exceptions must be put in 
 within four days within the term next after the 
 coming in of the answer (c). But both courts will 
 permit the plaintiff to file exceptions wzmc^^rr; tunc as 
 of course, if the application be within two terms, and 
 the following vacation, and afterwards, upon special 
 application (r/). 
 
 Practice as The practice, as to the course of proceedina; after 
 
 to arguing • i i /^i i i i i • 
 
 exceptions the exceptions have been filed, varies considerably in 
 in Cliancery. ^]^q ^wo courts. In the Court of Chancery, where 
 exceptions are shown as cause, counsel must be 
 instructed to do so, on the defendant's moving to 
 dissolve the injunction absolutely. The plaintifi^j as 
 in the case of impertinence, is then compelled to 
 obtain the Master's report within a reasonable time, 
 stated in the books to be sometimes a week, but 
 generally four days (e). This time is, however, fre- 
 frequently extended by courtesy (f), 
 
 (a) 2 Mei-iv. 479. 
 
 (b) Harrison, Cli. Pr. 197. 
 
 (c) 2 Fowl. Exch. Pr. 2. 
 
 (d) Anon, 3 Atk. 19. Thomas v. Llewellyn, 6 Ves. S23. 
 Goodingc v. Woodhams, 14- Ves. 536. Thobnrn r.Barrilt, 2 Fowl. 
 Exch. Pr. S. Dyer v. Dyer, 1 Meriv. 1. 
 
 (r) Wy. Pr. Reg. 211. Harrison, Ch. Pr. .117. 1 Turn. Ch. 
 Pr. 371,872. 
 
 (/) 2 V. c>v- B. 40.
 
 TO STAY IMIOCEEDKNGS AT LAW. 101 
 
 If the Master reports the answer suHicieiit, the re- ^«"*'« 
 port operates ipsojaclo to dissolve tlie injunction {a), solving. 
 
 And where the injunction has been by order ex- 
 
 tended to stay trial, that order falls also as ])art of 
 the original injunction, without a motion to dissolve: 
 the necessary effect of removing the common in- 
 junction, which is tlie foundation, being, that the 
 superstructure is also removed (/;). 
 
 Although it may be inferred, from a passage in a Injunction 
 \ ahiable book of practice (c) that the plaintiff' by poi-ttd l>v 
 
 takinp- exceptions to the Master's report may uphold exceptions 
 , . . / , , \ J, to Master's 
 
 the injunction, yet the contrary has been repeatedly report. 
 
 determined ; Lord Eldon observing, that a case of 
 pressing injustice must be shown, to call upon tlie 
 court to revive, on the mere ground, that exceptions 
 are taken to the report : that, upon general prin- 
 ciples, there was much less mischief, in considering 
 the Master's report conclusive, than in Inn ing ex- 
 ceptions upon exceptions, ffrst to the answer, tlieu 
 to the Master's report, then in the shape of a re- 
 hearing, and, lastly, an appeal to the House of 
 Lords [d). This point had been long before de- 
 termined by Lord Rosslyn, when it was said that 
 the meaning of the plaintiff''s undertaking, to pro- 
 cure the Master's report in four days, was, that he 
 will procure the Master's report of the insujjic'ieuctj 
 of the defendant's ansxcer within that time. Tliat 
 
 (rt) 2 V. & B. 42. 2Meriv. 179. Walter v. Russell IJunb. :«). 
 Hutchinson v. Markham, 2 Mad. Rep. 355. Pe) to v. Iludt-on; cit. 
 jb. overruling the passage contra in liinde, \t. 598. 
 
 (b) Bishton r. Birch, 2 V. & B. 10. 
 
 (c) 1 Turn. C'h. Pr. 372. 
 
 <f/) ] V. .-v B. ,303. 2 3kriv. 1T;».
 
 102 
 
 •JO S'l'AY rJlOCKKDINGS AT LAW 
 
 CtlKSC 
 
 against dis- 
 solving' 
 
 Practice as 
 to excep- 
 tions in the 
 Exchequer, 
 
 Otherwise it would merely furnish the plaiiitift' witli 
 further means of delay, and tliere would be excep- 
 tions to a Master's report upon every reference of an 
 answer to an injunction bill : that the plaintiff was 
 not without his remedy, for if the court should be 
 of opinion that the answer was not sufficient, he 
 might move to revive the injunction [a). 
 
 Upon the same principle where the Master had 
 allowed exceptions, thinking the answer Insiifficientj 
 but the Master of the Rolls, upon exceptions being 
 taken to that report, allowed them, thinking the 
 answer siifficienty Lord Eldon refused to revive an 
 injunction, upon the ground of there being an appeal 
 from that judgment of the Master of the Rolls. His 
 Lordship said, that a more mischievous practice 
 could not be introduced, than to uphold an injunc- 
 tion, where the judgment of the court was, that the 
 answer is sufficient, upon the supposition that the 
 judgment might be reversed (J)). 
 
 If the Master reports the answer insufficient, the 
 injunction will be continued till the exceptions are 
 answered ; when that is done, the defendant may 
 again move to dissolve the injunction, and the same 
 cause may again be shown by the plaintiti' for its 
 continuance (c). 
 
 In the Exchequer the practice is materially dif- 
 ferent, as exceptions are there not made the subject 
 of reference, but the court determines upon argu- 
 ment in the first instance. When exceptions, there- 
 
 (a) Bothaiu v. Clark, 2 Cox, 42cS. 
 
 {b) Scott V. Mackintosh, 1 ^'. & W. r>{)\. 
 
 (c) 1 Turn. Ch. Pr. .'372.
 
 TO STAY PROCEEDINGS AT LAW. 10^3 
 
 fore, are taken, the plaintiff may adopt eitlicr oi" the Cause 
 
 ,. ,, . 1 f, ,. aminst dis- 
 
 lollovving modes or proccedmg : solvim-. 
 
 1st, He may show Ejcceptions genendhj : this is 
 
 done by setting down the exceptions to be argued in ^.^pUons ' "^ 
 the ordinary way; in which case by an order of court genemlly. 
 made the 7th of May, 1791-, he must on fihng the 
 exceptions give a four day rule, one day exclusive 
 the other inclusive (upon the construction of which 
 it has been decided that Sunday is one of the four 
 days («)), for arguing the same in court on the first 
 Tuesday, Wednesday, or Friday in term on which 
 such rules shall expire, proA'ided a four day rule 
 shall happen to expire on a Tuesday, Wednesday, or 
 Friday ; if otherwise, a plaintiff, instead of gi\ing a 
 four day rule, shall give a rule to argue the same on 
 the first Tuesday, Wednesday, or Friday that shall 
 happen after the expiration of four days from the 
 day of filing such exceptions. Where the excep- 
 tions are thus set down the phiintiff may proceed 
 to argue all the exceptions, and if one of thejn be 
 allowed, it is a motion of course to apply for an in- 
 junction immediately, which will continue until the 
 exceptions are fully answered (Z>). 
 
 2d. The other mode which the plaintiff' may adopt Opcnin- a 
 
 /» 11 TT 1 . !• ^i i- material OX- 
 
 IS as follows. He may select one oi tiie cvccptions ^.^.^^^\^^n^ 
 
 which he considers material to the merits of his 
 
 case, and then give notice to the defendant's clerk 
 
 in court, of a motion for an injunction upon opening 
 
 a material exception, or in case the exception shall 
 
 not be holden material, then, that an injunction shall 
 
 {a) r.ulkr V. (Jrcy. 2 F<ml. Ex. P. .■;. 
 (b) 'J I'owl. Kx. I'r.
 
 1U1< lo STAY rii()Ci:E]>INGS AT LAW. 
 
 Cause issue 111)011 tlic merits coiitessecl in the answer. If 
 
 against (lis- r-i i i • • • i 
 
 solving, the plaintitt lias not tiJed liis exceptions in due 
 
 course, but has been permitted to file thein nunc pro 
 
 tunc ; he must give a four day rule for arguing (a). 
 
 If the exception is considered material, the injunc- 
 tion issues of course. If it is holden to be immaterial, 
 or is found to be answered, the plaintiff cannot then 
 proceed upon any of the other exceptions, but must 
 show cause upon the merits confessed in the answer. 
 If the court should then be of opinion, that the 
 cause is destitute of merits as made by the answer, 
 the plaintiff may give a rule to argue the rest of the 
 exceptions on the usual day, and if one of them only 
 should hold, it will entitle the plaintiff to an injunc- 
 tion, which will continue, until the defendant shall 
 put in a perfect answer to the matter of the excep- 
 tion [b). And if the exception should be holden 
 immaterial, but an injunction is granted on the 
 merits, the general set of exceptions must be dis- 
 posed of either by arguing them, or paying the de- 
 fendant A'Os. costs, as in the case of overruling them. 
 But the latter is the more usual course. 
 
 So if the exceptions selected from the general set 
 of exceptions should be held material, and the plain- 
 tiff thereby obtains an injunction, the exceptions 
 must be disposed of by giving the ordinary rule to 
 argue them, and then they are of course submitted 
 to, and the defendant puts in a new answer. The 
 
 (rt) Edwards v. Hogarth, 1 Price, 147. 
 
 {b) It is stated in North's Life of Lord Keeper Guildford that 
 his Lordship introduced this practice into the court of chancery, 
 vol. ii. p. 79. Oct. ed. 1808. There is no trace, however, in any of 
 the books; of practice of its existence.
 
 TO STAY PROCEEDINGS AT LAW. 105 
 
 same course is taken where there is but one excep- Cause 
 
 against dis- 
 tion filed («). solving. 
 
 Though an injunction may be continued on 
 
 exceptions, yet exceptions to an answer, without 
 a report of its insufficiency, are not a sufficient 
 cause for obtaining an injunction (Z*). If the de- 
 fendant submits to answer the exceptions, he must 
 in the Exchequer signify his submission to the ad- . 
 verse clerk in court two days previous to the day of 
 argument, and upon suggesting to the court that 
 the defendant hath submitted to answer the excep- 
 tions, an injunction is granted of course until answer 
 or further order (c). 
 
 After a defendant has submitted to the exceptions, Amendment 
 
 , n 1 -.- -^ • of bill after 
 
 or upon argument they are allowed ; ii it is neces- ^^^xceptions 
 
 sary to amend the bill, the plaintiff must immediately submitted to 
 
 •^ ' 111^^ allowed. 
 
 apply to the court for that purpose, and that the 
 
 defendant may answer the amendments at the same 
 time that he answers the exceptions. This is a 
 motion of course ; and after it has been entered and 
 served, a further answer cannot be received, the 
 terms of the order requiring that the defendant shall 
 not only answer the exceptions, but the amend- 
 ments at the same time (d). There is upon this 
 subject a difference in the practice of the two courts. . 
 In the Exchequer a further answer cannot be put in 
 after e.vceptions have been taken ; the tender of the 
 further answer, is considered a submission to the 
 
 (a) 2 Fowl. Ex. Pr. 
 (6) Harrison, Ch. Pr. 54.8. 
 (c) 2 Fowl. Ex. Pr. 
 
 {d) INIaync v. Hochin, 1 Dick. 25.3. Mayler r. Hankcy, 2 Fowl. 
 Ex. Pr. 12. Lawrence v. Partington, ib. 21.
 
 lOC) TO STAY TROCEEDINGS AT LAW. 
 
 Cmi.sc exceptions, and the injunction may be moved for, 
 
 lS"t ' '^" 'ifter sucli offer, as of course («). But in the Court 
 
 of Chancery, the further answer may be put in at 
 
 any time bejbrc the service of the order to amende See, 
 It is, as observed by Lord Alvanley (b), a kind of 
 race between the plaintiff and defendant. The de- 
 fendant may have his answer ready, and file it as 
 soon as he hears the Master's opinion is against 
 him upon the exceptions ; even the moment excep- 
 tions are taken, he may prepare and file a better 
 answer ; and afterwards when the plaintiff moves to 
 amend, &c. the circumstance of the defendant having 
 put in his further answer, w411 be a ground for re- 
 fusing the order, or if already obtained, be a reason 
 for its discharge (c). If the plaintiff neglects to 
 amend, whereby he prevents the defendant from 
 answering the exceptions, the court of Exchequer 
 permits the defendant to move, on notice, to dis- 
 charge the plaintiff's order, unless he amends in a 
 week ; and the court on that motion limits him to 
 tliat (or some other short period, according to the 
 circumstances), and on his failure, the order is 
 thereby declared to be discharged (d). 
 Siiowing When the answer is full, and the plaintiff is con- 
 
 merits. ^ sequently without hopes of continuing the injunc- 
 tion by taking exceptions, he must shozv cause o?i 
 the merits or equity of the case confessed in the 
 
 (a) Edwards v. Johnson, 1 Price, 203. 
 
 {b) 1 Ves. jun. 88. 
 
 (t) Bcthune u. Bateman, 1 Dick. 296. Paty v. Simpson, 2 Cox, 
 392. Knox v. Symmonds, 1 Ves. jun. 87. Wynne v. Owen, cit. 
 il). Partridge r. Haycroft. 11 Ves. 578. 
 
 (f/) 2 Fowl. Ex. Pr. 12.
 
 TO STAY PROCEEDINGS AT LAW. 107 
 
 answer (a). It is hardly necessary, however, to ob- Cause 
 serve, that in a bill for discovery only the plaintiff ^S^. 
 
 cannot show cause upon the merits (b). As it fre- 
 
 quently happens, when the day for showing cause is 
 arrived, that the plaintiff is not fully prepared to do 
 so, it is of course to enlarge the time for his showing 
 cause, upon his then undertaking not to except, but 
 to show cause on the merits : this in the Exchequer 
 is a week, if the application be in term ; if at the 
 sittings, the time will be enlarged to the first day of 
 the following term (c). In the Court of Chancery 
 time is usually given till the next day of motions (d) ; 
 but in a case where the motion to dissolve was made 
 at the last seal after Trinity term, the plaintiff was 
 not permitted to have time till the next day of 
 motions at the first seal after the long vacation, but 
 was ordered to show cause during the petitions (e). 
 
 There is a convenient practice adopted by the Court Previous 
 ofExchequer, by which the defendant, if he is advised °^ ^^' 
 that the answer is sufficient, may accelerate the time 
 for showing cause upon the merits, by obtaining 
 what is called the Previous Order. This is a motion 
 of course, by which it is ordered, " that in case the 
 exceptions taken to the defendant's answer shall, 
 upon the arguing thereof or otherwise, be overruled, 
 the plaintiff do at the same time show cause on the 
 merits, why the injunction should not be absolutely 
 dissolved.'* This order must be obtained, and 
 
 (a) 1 Turn. Ch. Pr. 372. 
 
 (b) Thompson r. Butler, 1 Fowl. Ex. Pr. 2S7. 
 
 (c) 1 Fowl. Ex. ]'r. 2S1.. 
 {d) 5 Yes. 5.-)'2. VVy, Pr. Ut-. 2S1. 
 (f) Uobinsoii 7'. W'arcUll, "i V'c^. 5'i'2.
 
 108 TO STAY PROCEEDINGS AT LAW. 
 
 Cause servccl at least two days before the day of arguing 
 
 "uhTncr ' ' " the exceptions. If tliis order be not obtained, and 
 
 ■ tlie exceptions should be overruled, the defendant 
 
 must either on that day or afterwards, move for an 
 order to dissolve the injunction upon the exceptions 
 being overruled, unless cause shown that day seven- 
 night : and if the plaintiff should then show cause 
 upon the merits, and fad, the injunction will be dis- 
 solved ; but the defendant will in the mean time 
 have suffered the delay of a week by not having ob- 
 tained the Previous Order (a). 
 Affidavits \ In showing cause against dissolving the injunc- 
 rcad h/con- ^i^"* ^^ ^^ a general rule that nothing can be read 
 tradiction to but what appears on the face of the answer : accord- 
 ingly the case of Isaacs v. Humpage (/y), in which 
 Mr. J. Buller (upon an application after answer for 
 an injunction to restrain execution on a verdict), 
 permitted affidavits to be read in contradiction to 
 the answer, has been since repeatedly overruled (c) ; 
 and it has been established, that except in the case 
 of waste, to which the facts in Isaacs v. Hvnnpage 
 were erroneously assimilated, affidavits will not be 
 received in contradiction to assertions positively 
 made by the answer. It is scarcely necessary to 
 remark, that the answer is only evidence as to facts 
 to which other testimony could be received, and 
 therefore an answer, which alleged that the true in- 
 tention of the parties to a written agreement was 
 
 (a) 1 Fowl. Ex. Pr. 284. 
 
 (b) 1 Ves. junr. 427. 3 Bro. C. C. 463. 
 
 (c) Lane v. Williams, 6 Ves. 798. Hanson v. Gardiner, 7 \'es. 
 308. Berkeley v. Brymcr, 9 Ves. 355. Norway v. Rowe, 19 Ves. 
 148.
 
 TO STAY PROCEEDINGS AT LAW. 109 
 
 contrary to what appeared on the face of it, was not Cause 
 
 '' against dis- 
 
 admitted {a). solving. 
 
 There are instances noticed by Lord Eldon (/;), in 
 
 which the court has admitted affidavits to be read in 
 support of allegations made by the bill, where those 
 allegations related to acts of the parties, and the de- 
 fendant by his answer has neither admitted nor denied 
 the truth of them. Thus in the case of an injunction 
 to stay proceedings at law upon a promissory note 
 given by the plaintiff to the defendant's testator ; the 
 plaintiff, in showing cause on the merits, relied princi- 
 pally on certain letters set forth in the bill, and therein 
 stated to have been written by the testator to the 
 plaintiff; which letters were neither admitted nor 
 denied by the answer, the defendant alleging that 
 he knew nothing about them : the plaintiff upon 
 this, claimed the liberty of verifying the letters by 
 affidavit, and reading them in support of the injunc- 
 tion ; and Lord Eldon, upon the terms of the plain- 
 tiff verifying them, continued the injunction (c). 
 
 Li a remarkable case {d\ stated in a former 
 page (e), which was a motion by a cestuy que trusty 
 not a party to a cause, to dissolve an injunction ob- 
 tained against his trustee, who, in collusion with the 
 plaintiff, would not put in his answer ; Sir J. Jekyll 
 not only permitted the answer of the plaintiff to a 
 bill filed by the cesttiy que trust against him and the 
 trustee to be read upon the motion, but also affidavits 
 
 {a) Bott I'. Birch, 4 Mad. 255. 
 {!)) Morgan v. Goode, 3 Mer. 10. 
 (c) Taggart v. Hewlett, 1 Meriv. 499. 
 {(l) Lord Dclvin v. Smyth, Mose. 355. 
 (f) Ante, n. 8S.
 
 110 TO STAY PROCEIiDlNGS AT LAW. 
 
 Cause of the cestuy que trust of oflPers of satisfaction and 
 ^solvins. \' payiwcnt by instalments made to him by the ])laiiitiff. 
 ^ — There is a case before Lord Eldon, strongly illus- 
 trative of the attention paid to the rule, that affi- 
 davits cannot be read in contradiction to the an- 
 swer. An injunction had been dissolved upon an 
 answer having been put in, denying all the circum- 
 stances of the bill : a true bill for perjury upon 
 that answer had been found by the grand jury. 
 Upon this the plaintiff moved to revive the injunc- 
 tion ; and in support of the motion, a passage was 
 cited from Tothill, 114. stating, that where there 
 was a prosecution for perjury, the court granted an 
 injunction. Lord Eldon, after noticing that, inde- 
 pendent of that dictum^ there was no trace of any 
 such practice, and that he should be exceedingly 
 unwilling to make a precedent for the first time, 
 added, " If the answer denies all the circumstances 
 upon which the equity is founded, the universal 
 practice, as to the purpose of dissolving or not re- 
 viving the injunction, is to give credit to the answer; 
 and that is carried so far, that except in the few 
 excepted cases, though five hundred affidavits are 
 filed, not only by the plaintiff but by many witnesses, 
 not one could be read as to this purpose. That 
 being the rule, and the injunction being dissolved 
 upon the credit given to the answer for this purpose, 
 the question is, whether the answer is to be thus 
 accused (for it is no more) of perjury? The difficulty 
 as to the principle is, that the grand jury may have 
 believed, and in most cases must have believed, 
 those very persons upon their oaths for that })urpose, 
 whose depositions this court would not permit tt) be
 
 TO STAY PROCEEDINGS AT LAW. Ill 
 
 read for the purpose of discrediting the answer. It C<iiisc 
 is therefore, m a circuitous way, destroying the rule solving. 
 of tliis court (rt).*' ' 
 
 It will be found that there is one exception to this 
 rule, if the doctrine stated at the bar, in Whitworth 
 V, Davis (b\ and alluded to in a former page (<?), is 
 correct, viz. that to obtain an injunction against 
 assignees, the bankrupt may be made a party, and 
 his answer, though it cannot be read against the 
 assignees at the hearing, may be read against them 
 in support of the injunction. But this, as has been 
 already noticed, seems extremely doubtful. 
 
 Where a defendant refers by his answer to the 
 answer of a co-defendant, it may be read against 
 him upon a motion for an injunction (d). 
 
 (a) Clapham v. White, S Ves. 35. 
 
 (b) 2 V. ct B. 546. 
 
 (c) Ante, p. 89, 90. 
 
 (d) Anon. 1 P. W. 311.
 
 11^2 
 
 TO S'I'AV IMlOCKEDrNGS AT LAU' 
 
 Coiilh/uhig 
 ItiJK/uiions. 
 
 CHAPTER VI. 
 
 Of continuing^ dissolving, aiid 7'eviving Injunctions to 
 stay Proceedings atLaxi\ and of the Effect of Amend- 
 ment and Abatement. 
 
 Payment of 
 money into 
 court where 
 verdict, or 
 award, or 
 money 
 sworn due 
 by the an- 
 swer. 
 
 Where the merits of the plaintiff's bill have been 
 so far confessed by the answer, as to render it proper 
 for the court to interpose, the injunction already 
 obtained is continued to the hearing. But an in- 
 junction is never continued to the hearing as a 
 matter of course. It was in one case contended be- 
 fore Lord Hardwicke, that if there is such a doubt, 
 that the court may, at the hearing, decree either 
 the one way or the other, it is a reason to continue 
 the injunction till the hearing. His lordship, how- 
 ever, overruled this argument without any hesita- 
 tion {a). 
 
 There are many cases, however, in which the 
 court will only continue the injunction, upon the 
 condition of the plaintiff paying a certain sum of 
 money into court ; as for instance, where there has 
 been a verdict at law (^), or an award (c) for a sum 
 of money, or where the defendant has sworn by his 
 answer (g?) that a sum of money is due to him. 
 
 The old practice in these cases was, that the court 
 
 (a) Potter v. Chapman, Amb. 98. 
 (J)) \Vy. Pr. Reg. 237. 210. Harrison, Ch. Pr. 5.50, 
 (r) Wy. Pr. Reg. 21.2. Harrison, Ch. Pr. 51-9. 
 ((/) Wy. Pr. Reg. 288. Harrison, Ch. Pr. 549.
 
 TO STAY PROCEEDINGS AT LAW. IIS 
 
 dissolved tlie injunction, or refused it where not Contimiin^ 
 already obtained, unless the defendant gave a judg- -''' 
 ment at law for the money sworn due, and a release 
 of errors («) ; though in one case Lord Keeper North 
 is represented as objecting to this as not sufficiently 
 beneficial to tlie defendant, since, notwithstanding 
 the release of errors, the plaintiff might bring his 
 writ of error, and put the defendant to plead his 
 release, and so cause delay (Z>). Tlie usual mode, 
 however, at present is, to order the money to be paid 
 into court, for which reasonable time will be given, 
 according to the greatness of the sum, or the distance 
 of the party (c). This, however, will not be done 
 where there is matter confessed in the answer suf- 
 ficient for a total relief (r/): and in one case, where 
 an executor by his answer swore a certain sum to be 
 due, yet the court, upon affidavit of strangers to the 
 suit, continued the injunction without ordering the 
 money to be brought into court, because there ap- 
 peared reason to doubt whether it was actually due ; 
 and the executor, it was said, is not privy to the 
 transactions of the testator (e) : and so it was said it 
 would have been if by writing, or any other matter 
 shown in court, it might seem doubtful whether the 
 money were unpaid. 
 
 In general this practice is confined to cases where 
 the money has either been found due by verdict, or 
 award, or sworn to be so by the answer. In a 
 
 («) Wy. I'rac. Keg. 210. '21-2. 
 {b) Anon. 1 \'c>ni. 120. 
 (c) P. R. C. 201. 
 {d) Toth. ST. 
 
 ('■) r. U. C. 201. 2(»r>. (.'ills. Can. 1 !.">. 
 
 1
 
 114 TO STAY PROCKEDTNGS AT LAW. 
 
 ('outiinii)i<r cnso in the I^xcheciiicr, the plaintiff', an orange nier- 
 
 cliniit, a<;Tceti to purchase oi the deieiKlaiit, a })hinter 
 
 of fruit for ex})ortatioii at St. Michael's, 200U boxes 
 of oranges at the market price ; and in consc([iience 
 a cargo of 850 boxes were sent from thence to 
 London, consigned to the plaintiff. On receipt of 
 tlie invoice, the plaintiff found that the defendant 
 had charged for the cargo at the rate of 24^. per box, 
 tlie current price in the island being, as stated by 
 the plaintiff, only 155. per box ; and he therefore 
 refused to accept the defendant's bill for the amount 
 (.€1020), of which he gave notice to the defendant's 
 agents in London, whom he requested to take the 
 cargo, tendering them the bill of lading, or the 
 amount at ios. per box. The agents having refused 
 either to receive the oranges or the reduced price, 
 the plaintiff gave them notice, that he would take the 
 oranges to prevent their total loss, without prejudice. 
 In the mean time the defendant brought an action 
 to recover the whole amount, and the plaintiff having 
 obtained an injunction, a motion was made that he 
 might be ordered to bring into court the sum of 
 £^1020, or such other sum as the court should think 
 proper. It was submitted, that as the plaintiff had 
 taken the fruit, and had obtained an injunction, 
 which would prevent the defendant from reco\ering 
 the value, whatever that might be, for some time at 
 least, he ought to pay into court, for the security of 
 the defendant, the sum charged for the goods, or at 
 least so much as he had himself by his bill admitted 
 the goods to be worth, and which he had offered to 
 pay for the cargo : and it was contended tliat this 
 admission and offer, the plaintifi" having possession
 
 TO STAY PROCEEDINGS AT LAW. ll.'j 
 
 of the goods, placed him in the same situation as if Coniinuing 
 
 he had recovered a verdict at law, when he would ^^""^ '^"' 
 
 have been obliged to have paid the money into 
 
 court ; and it was said that the inconvenience would 
 
 be no more than he would have been put to in that 
 
 case : the court however refused tlic motion witli 
 
 costs (r/). 
 
 In the following case, however, an extension was, 
 from peculiar circumstances, made of the general 
 rule. The plaintiffs, seventy-two in number, who 
 were underwriters, had filed a bill to furnish them- 
 selves with defences to actions brought against 
 them on certain policies of insurance, alleging fraud 
 in the assured. Four of the causes had been set 
 down for trial, and in consequence of a mistake 
 in the defendant's attorney, had been tried, and 
 verdicts had been obtained in them, for the defendants 
 in equity. A number of the plaintiffs then paid into 
 the hands of certain persons named in an agreement 
 signed by them, the am.ount of their several sub- 
 scriptions, in trust, to be apphed in satisfaction of 
 whatever judgment was pronounced by the court of 
 law. An injunction having been afterwards obtained 
 for w^ant of the answer of one of the defendants, 
 a motion was made that the injunction might be 
 dissolved, or that such of the plaintiffs as had not 
 deposited the money claimed on the losses, subject 
 to the deed of trust, should pay that money into 
 court within fourteen days, to abide the event of the 
 actions at law, otherwise tlie injunction to be dis- 
 
 {a) Parncll v. Xcsbitt. 2 Tnce, l.'jO. 
 
 I 'J
 
 IHi 
 
 TO STW rUOrr.KDINGS AT LAW. 
 
 Coiitliniini'; 
 Injjtuclioii. 
 
 Plaintiff in 
 equity re- 
 quired to 
 pay money 
 into court 
 where de- 
 Icndant has 
 recovered a 
 verdict, and 
 is abroad. 
 
 sol \ 0(1 as to them ; and this motion was, upon argu- 
 ment, granted (a). 
 
 When money has thus been once paid in, the 
 court will use great caution in parting with it ; but 
 if it were shown, that there was gross and wilful 
 delay on the part of the defendant, and that he did 
 not intend to put in his answer, they would probably 
 release the money. In the above case of Kensington 
 v. White, after considerable delay, a motion was 
 made for that purpose; and though the court re- 
 fused the motion, yet it was intimated, that it would 
 probably be granted on another application, if there 
 was further delay. 
 
 The facility w4th which injunctions to stay pro- 
 ceedings at law were formerly obtained, where the 
 plaintiff was abroad, and consequently unable to 
 appear or answer in time, had, as we have before 
 seen (^), attracted the attention of the courts, who 
 in some measure remedied the abuse, by requiring 
 from the plaintiff in equity, an affidavit of the merits 
 of his case. As a still further check to the delay 
 and oppression so much complained of, a rule was 
 about the same time made, that, whenever the plain- 
 tiff at law being abroad had recovered a verdict, 
 and an injunction had been obtained for want of 
 appearance or answer ; the plaintiff in equity should 
 pay into court w^ithin a reasonable time (generally 
 a month) the money so recovered, or in defaidt 
 
 («) Kensington v. White, 3 Price, 161. 
 (6) Ante, p. 5+.
 
 TO STAY rUOCEEDlNGS AT TAW. 11? 
 
 thereof that the injunction should be dissolved (a), Coniinuing 
 This order will not be made, wdthout an affidavit in "^"" ' ^""' 
 answer to the material allegations of the bill, and 
 several of the motions upon this subject stood over, 
 to give the defendants time to tile satisfactory af- 
 fidavits : and though it is stated in the argument of 
 Culley V. Hickling, that Lord Bathurst granted the 
 motion in Wesket v. Carnevali without an affidavit ; 
 this a{)pears to have been a mistake (/;). 
 
 Another very salutary regulation of this nature is Tenant filing 
 provided by the 4 Geo. 2. c. 28. s. 3. which enacts, |"' ;"j""^fi«'' 
 
 ' "^ bill, reqiured 
 
 that the lessee, or his assignee, or any person to pay into 
 
 claiming under him, shall not have or continue ^*^."i.,j \.^^._ 
 
 any injunction against the proceedings at law on 
 
 an ejectment brought by the lessor, ludess within 
 
 forty days next after a full and perfect answer filed 
 
 by such lessor, he shall bring into court and lodge 
 
 with the proper officer such sum as the lessor shall 
 
 swear to be due and in arrear, over and above all 
 
 just allowances, and also the costs taxed in the said 
 
 suit, there to remain till the hearing of the cause, or 
 
 to be paid out to the lessor on good security, subject 
 
 to the decree of the court. 
 
 When the injunction is continued, the cause in 
 equity ought to be prosecuted to a hearing ; if it be 
 not, and the court is satisfied that there is any in- 
 tentional delay on the part of the plaintiff, the in- 
 
 (a) Wesket u. Carnevali, 2 Bro. C- C. 182. n. Coglan /•. Hauuc- 
 neau, ib. Mitchell v. Davis, cit. ib. Potts v. Hutlcr, ib. JS. C. 
 
 1 Cox, 3.S0. Sherwood v. White, 1 Bro. C.C. 152. Acton v. .Market, 
 
 2 Bro. C. C. 1 1. Culley v. Hicklin-, ib. ls2. 
 
 (b) 1 Cox, Lv)0.
 
 118 TO STAY l'l{()( EKDINGS AT LAW. 
 
 Dissolving junction will be dissolved («). And by Lord Bacon's 
 Injunction, ^^^h Ordinance, if no prosecution is had for the 
 
 space of three terms, the injunction is to fall of itself 
 
 without further motion (h). 
 
 Dissolving. If the answer contains a sufficient defence to the 
 case stated in the bill, the injunction will be Dis- 
 s.olved. So where a plea is allowed, there is or- 
 dinarily an end of the injunction, but not ahvays ; 
 and the court has said that an injunction is not 
 absolutely dissolved upon the allowance of the plea, 
 but only nisi, because there may be some equity 
 shown to continue it(c). Where a cross bill has 
 been filed, if, when the first has been answered, the 
 second is not answered in eight days, the injunction 
 will be dissolved (r/). 
 
 There, hovv^ever, is a case in which an injunction 
 was continued, though the answer stated a full de- 
 fence : there had been a reference to the master as 
 to title, upon a bill for a specific performance of an 
 agreement, and an injunction to restrain the defend- 
 ant from proceeding at law to recover part of the 
 purchase money paid in advance : the answer stated 
 circumstances w^hich showed that a decree could not 
 be made on the ground of want of title and out- 
 
 (rt) Harrison, Ch. Pr. 548. 1 Turn. Ch. 373. 
 
 {b) Beames' Orders, 14. 
 
 (r) Wy. Pr. Reg. 242. 
 
 {d) Hind, 599. Wy. Pr. Reg. •l'o5. 241.
 
 TO STAY niOCEEDlNGS AT LAW, 119 
 
 standing incumbrances ; the court, however, refused nivivins: 
 to dissolve the injunction without the Master's re- ^•^""' ^ ^ ^^' 
 port, as it would be in eftcct deciding the cause (a). 
 
 If an injunction be dissolved, yet, if there be cause. Reviving 
 it may be Revived on motion (/>). ' Tiuis where a re- 
 ference of the answer for insuiHciency has been 
 shown for cause against dissolving the injunction, 
 and the plaintiff has been put upon terms of obtain- 
 ing the Master's report within a certain time, but 
 having failed to do so, the injunction is dissolved ; 
 if the Master afterwards reports the answer insuf- 
 ficient, tlie plaintiff may move to revive (c) ; but 
 after a reference for hiqjertmence, such motion can- 
 not be sustained (r/). 
 
 The motion to revive is necessary, and will be 
 granted according to the circumstances, either where 
 the injunction has dropped in consequence of the 
 plaintiff's having amended the bill (t), or, w here the 
 injunction having been dissolved on the merits, the 
 plaintiff subsequently amends {f^. 
 
 But the motion has been refused : where, the 
 Master having reported in favour of the suf- 
 ficiency of the answer, exceptions have been taken 
 
 {a) Cluuch r. Legeyt, 1 Price, ;5()1. 
 
 (6) Wy. Pr. Keg. 2V2. 
 
 (c) 4. Mad. 237. 
 
 {d) Dansey v. Brow uc; 1 Mad. 'JL>7. 
 
 (c) Postj p. I'iO. 
 
 (/•) Po.t, 1). 121.
 
 1^0 
 
 TO STAY i'kocei:din(;.s at law 
 
 Amendment, to his lepoit («) : iilso vvlieie tlie Master having re- 
 ported the answer insufficient, and the Master of 
 the Rolls, upon exceptions taken to that report, had 
 allowed them, thinking the answer sufficient, and 
 an ap])eal liad been entered against the judgment (i): 
 and again, where the injunction having been dissolved 
 upon tlie answer denying all tlie circumstances of the 
 bill, and a true bill for perjury committed in that an- 
 swer had been found by the grand jiuy (c). 
 
 Injunction 
 pone upon 
 j.uncndment 
 
 Amendment. After the answer has come in, the plaintifi' fre* 
 quently finds it expedient to amend the bill. This 
 naturally leads to the consideration of the question ; 
 How far an injunction is affected by amendment? 
 
 Upon this point, considerable difference of opi- 
 nion has at various times been entertained. The 
 question was much considered in a case before Lord 
 Bathurst («'), in which, after an injunction obtained, 
 an answer was put in, and the plaintiff afterwards 
 amended. His Lordship consulted Mr. Dickens, 
 who has printed the answer which he returned. He 
 stated, that it was only where an injunction had 
 been dissolved on the merits, that it w^as necessary 
 for the plaintiff to revive the injunction, upon his 
 amending, by special application : that it was a novel 
 
 {a) Ante, p. 102. 
 
 {b) Scott V. ^lackintosh, I V. & B. 501. 
 (c-) Clapham v. White, 8 Vet>. 35. 
 {d) Mason r. Murray, 2 Dick. 5'66.
 
 TO STAY PUOCEEDlNCiS AT LAW. 1^1 
 
 doctrine, that the injunction was gone of course upon Amendment. 
 the bilPs being amended : that it might be amended 
 for various purposes not connected with the in- 
 junction, which was only one head of rehef : that 
 amending the bill was admitting the answer to be 
 full, and that exceptions would not lie to it ; but 
 that it did not therefore follow, that enough might 
 not be discovered or admitted to support the in- 
 junction. Lord Bathurst was influenced by these 
 arguments, and accordingly determined that the in- 
 junction did not drop by the amendment. In a 
 case also before Sir J. Jekyll («), the fact of the 
 plaintiff having amended the bill, seems not to have 
 been considered, as an objection to the continuance 
 of the injunction. These decisions have, however, 
 since been overruled, and it is now well understood 
 that an injunction drops of course upon the plaintiff''s 
 amending the bill (Z>). 
 
 It has, in consequence of this doctrine, become '^ "Motion for 
 usual for the plaintiff, in cases where it is expedient a'jjIcnd^witU- 
 to amend, to move for leave to amend laithout pi^ejiidice out prc- 
 to the injimction (c) ; this will not only be granted, 
 but occasionally even, re-amendment has been per-\ 
 mitted {d). The court, however, requires it to be 
 clearly shown by affidavit, that the plaintiff had no 
 knowledge of the facts proposed to be stated in the 
 amendment, so as to have been able to bring them 
 
 (a) Lord Delvin v. Smyth, Mose. 20-1'. 
 {b) Bliss V. Boscawen, 2 V. & B. 102. 
 (c) Vesey v. Wilks, 3 Madd. 175. 
 
 (^0 Sharp V. Ashton, 3 V. Jv B. ll-l. Mair v. Thclus.soii, ib. 
 1 1.5. n.
 
 h2'2 
 
 TO STAY PIIOCKEDINGS AT LAW. 
 
 Amendment, sooner upoii the rccord : the doctrine is thus stated 
 in a recent case by Lord Eldon («). "The j)rinci])le 
 requiring the case for the injunction to be put upon 
 the record immediately, is, tliat tlie party, tlie })ro- 
 secution of whose demand at law is to be delayed by 
 the injunction, shall be delayed as short a time as 
 can be consistent with justice ; but that principle is 
 not controverted, where a plaintiff is not informed 
 that an equity exists, which would entitle him to 
 relief; no blame can attach upon him for not putting- 
 it upon the record until he knows it; but as soon as 
 he knows it, he must put it on the record. In the 
 case cited (Ji), I think, the information was obtained 
 not from the record, but aliunde : it is not material 
 for this purpose how the plaintiff procures the in- 
 formation, even though unduly obtained ; but if he 
 gets it from the answer, the court must know from 
 the bill and answer, that he cannot have as much 
 benefit as if he had asked farther questions. In that 
 case, therefore, the court required to know what 
 were the proposed amendments, whether they were 
 material, and if material, to have ascertained by clear 
 and positive affidavit that they related to facts of 
 which the plaintiff had not a knowledge, enabling 
 him to bring that case upon the record sooner. All 
 these facts must be substantiated." 
 
 It was generally understood that this motion was 
 granted upon payment of 205. costs (c) ; but in one 
 
 Costs. 
 
 («) 3 V. & B. 148, 
 
 {b) Mair v. Thclusson, sup. 
 
 (c) Sharp v. Ashton, bun.
 
 swer. 
 
 TO STAY PROCEEDINGS AT LAW. V2S 
 
 of the cases, probably from the particular circum- Amendment. 
 stances, the court appears to have directed that it 
 should be on payment of full costs {a). 
 
 This motion for liberty to amend without pre- Before an- 
 judice to the injunction, is generally made after 
 the injunction has been continued on the merits (b). 
 However, in some cases it will be granted before 
 the answer has been put in ; as in the case of 
 Mair v. Thelusson before alluded to, the defendant 
 having obtained three weeks further time to put in 
 his answer, upon the special ground, that his solicitor 
 having but recently come into the cause, had not 
 sufficient time to prepare the answer, the plaintiff 
 obtained an order that he should have a w^eek to 
 amend the bill, and that the defendant should an- 
 swer the amended bill within the three weeks. In 
 the case of Sharp v. Ashton, the answer had been 
 referred for impertinence, and the impertinence 
 being expunged, the plaintiff took exceptions which 
 were allowed ; the plaintiff then amended, and ob- 
 tained an order that the defendant should answer 
 the amendment and exceptions together. The de- 
 fendant's answer was afterwards sworn, but not having 
 been filed on account of some informality, a motion 
 was made by the plaintiff to reamend, wdthout pre- 
 judice to the injunction. The affidavit of the plain- 
 tiff, and his solicitor, alleged, that, except by the 
 answer to the amended bill, they had no notice of a 
 fact which was very material information to the 
 plaintiff in the prosecution in his defence at law ; 
 
 {a) Mair v. Tliclub^on^ ^up. 
 (h) '1 V. & r>. 'SM).
 
 I'Jl. 
 
 TO >JAY I'liOCJ:KI>lN(i.S AT I. AW. 
 
 Auirndnwnt. 
 
 Motion re- 
 fused. 
 
 Injunction 
 tlissolvecl 
 iipon the 
 jnerits, re- 
 vived upon 
 plaintiff's 
 amending. 
 
 that all the circumstances connected with that trans- 
 action must be brought before the coiut, either by 
 way of supplement, or re-amendment, more par- 
 ticularly than as stated in the answer ; and that the 
 plaintiff could not safely proceed to trial without 
 the defendant's answer to such supplemental or re- 
 amended matter : the affidavit then stated the pro- 
 posed re-amendments. 
 
 But where the answer had come in, and not been 
 excepted to, this motion was refused with costs ; Lord 
 Eldon said, that the plaintiff was in that stage which 
 entitled him to sustain the injunction, by showing 
 exceptions for cause, or showing merits, but that he 
 was not entitled to amend («). It is scarcely ne- 
 cessary to notice, that if exceptions are taken, the 
 common order to amend cannot be obtained till the 
 exceptions are disposed of; because the defendant 
 is prevented by the exceptions from moving to dis- 
 solve, and therefore the plaintiff shall not indirectly 
 give himself an opportunity of amending, without the 
 special order that such amendment shall be without 
 prejudice to the injunction (b). 
 
 There is another point connected with this sub- 
 ject, upon which much difference of opinion has 
 been entertained, viz. as to the mode by which 
 an injunction, which has been dissolved upon the 
 merits, is to be revived upon the plaintiff having 
 amended. It has been maintained, that if the de- 
 fendant is in default for not answering the amend- 
 ments, the injunction will be revived (as it is granted 
 
 (cf) Turner v. Bazcley, 2 V. & B. 330. 
 
 {b) Dixon V. Redmond, 2 Seh. & Lcf. 515.
 
 TO STAY PROCEF.DINGS AT LAW. 125 
 
 under the same circumstances on an original bill) Amendment. 
 upon application of course until answer or further " 
 
 order. Lord Hardwicke is reported, by Mr. Dickens, 
 in a case where a special application had been made 
 for this purpose upon notice^ to have declared that 
 notice w^as not necessary, and that the motion was 
 of course (a) : and Mr. Dickens, in some observa- 
 tions which he submitted to Lord Thurlow (but 
 which, like those he gave to Lord Bathurst in Mason 
 V. Murray, have not met with the approbation of 
 succeeding judges), insisted that this was the prac- 
 tice (b). This, however, is in a great measure con- 
 tradicted by the establishment of the doctrine just 
 alluded to, as to permitting amendment without 
 prejudice to the injunction; the proposition, as ob- 
 served by Lord Eldon, being absurd, that the court 
 holds a plaintiff so strictly to the rule, that he shall 
 put his best case foremost at first, as not to permit 
 him to amend without losing the injunction, unless 
 expressly saved in that order of amendment ; yet it 
 upon discussing the merits, the court thinks him 
 not entitled to an injunction, he shall obtain it by 
 amending, not communicating to the court why he 
 did not make the case for it at first (r). And in- 
 deed it is hardly probable that Lord Hardwicke 
 should have expressed himself in Bagster r. Walker 
 in the manner represented by Mr. Dickens ; as in a 
 case which subsequently occurred, he stated the 
 doctrine upon the subject to the contrary, in the 
 
 (a) Bagster v. Walker, 2 Dick.7.'>7. also reported without these 
 observations, 1 Dick. 109. 
 (h) 2 Dick. 7.55. 
 (r) 2 V. eS." P.. 1();{.
 
 126 TO STAV FM{OCB',EDTNGS AT LAW. 
 
 Amendment, followiiic: clear and distinct manner : " Where an 
 injunction has once been dissolved on the merits 
 upon the answer put in, whether by decree of the 
 court on dismissing the bill, or on motion upon 
 coming in of the answer on arguing of the merits, as 
 they appear on the oath only of the defendants : if 
 the plaintiff amends that bill, or files a supplemental 
 bill with new matter, which is part of the old cause, 
 lie cannot apply as of course for a new injunction to 
 stay proceedings until answer or further order ; the 
 ground of that course of the court being, that the 
 plaintiff ought to state his case on filing the original 
 bill as to the merits of his equity, the court not 
 giving him liberty to split and retail out his equity 
 to apply upon another head for another injunction 
 after the former one is dissolved (^0-" 
 Special The doctrine thus clearly and satisfactorily esta- 
 
 affiaavit!"'^ Wished, has been followed in all the modern cases (/;), 
 and no injunction which has been once dissolved, can 
 now be revived, without special motion on amend- 
 ments verified by affidavit. These determinations 
 have thus not only exploded the doctrine contended 
 for by Mr. Dickens, but also the modification of it 
 adopted by Lord Thurlow in the above noticed case 
 of Edwards v. Jenkins, where his Lordship was of 
 opinion, that, although it was necessary that this ap- 
 plication should be on special motion, yet there need 
 not be any affidavit in support of the amendment : 
 
 {a) Travers v. Lord Stafford, 2 Ves. 19. S. C. Amb. lOi. 
 
 {b) Anon. 3 Atk. 394. Lady Markham v. Dickenson, 1 Ves. 
 jun. 30. Norris v. Kennedy, 1 1 Ves. 56B. James x\ Downes, 
 18 Ves. 512. Bliss v. Boscawen, 2 V. &:B. 101. ^'^{>a^ r. Movt- 
 lock, '2 Mcriv. 179.
 
 TO STAY niOCEEDINGS AT LAW. IQJ 
 
 as he considered the only difference to be, that the Amendmeiit. 
 court decided on special motion upon the amended 
 bill, what was done of course on the original bill. 
 
 Two points, therefore, in every application of this 
 sort, should be attended to, as without their concur- 
 rence the injunction cannot be obtained. 1st, The 
 truth of the amended bill, must be verified upon 
 special motion by affidavit, showing that the plaintiff 
 could not sooner have put them on the record ; and 
 ^dly, the defendant must be in default. There is a Necessary 
 case in the court of Exchequer («), in which it was ^',jt'gij^[fi^ 
 laid down, that it was necessary that the defendant be in default. 
 in this case should be in contempt; this determina- 
 tion has, however, been overruled, Lord Eldon having 
 expressly determined, that it is sufficient if he is in 
 default (J)). In the former of these cases the doctrine 
 is thus stated by Lord Eldon : " He cannot, I appre- 
 hend, apply till default by the defendant, and then 
 he does not move for the injunction upon the amended 
 bill by reason merely of the default ; but taking that 
 as one ground, he moves for the in] unction, verify- 
 ing the truth of the amended bill by affidavit ; and 
 then if there is both default by the defendant, and 
 an equitable case proved by the affidavit of the plain- 
 tiff', the court giving credit to the bill in the first 
 instance, if there is also default by the defendant, 
 in the latter does not give credit to the bill as the 
 second proceeding, unless, besides the default, the 
 bill is also verified by affidavit ; but until some de- 
 fault, the plaintifi* cannot be entitled to the injunc- 
 
 («) Gadd V. Wonall, 2 x\nst. 5.53. 
 
 (/') Jaines v. Downes, IS Vcs. .j'i'i. \'i})an r. Mortlock. 2 Mcriv. 
 4.7(i.
 
 128 
 
 TO STAY I'llOCKEDINGS AT LAW 
 
 Amcudmeut. 
 
 Defendant 
 may move, 
 upon affi- 
 davit, to dis- 
 solve injune- 
 tion granted 
 upon amend- 
 ments. 
 
 Wlicther, 
 wliere no in- 
 junction ob- 
 tained upon 
 the original 
 bill, injunc- 
 tion may be 
 obtained of 
 course upon 
 amend- 
 ments. 
 
 tion : for instance, unless the time for answering has 
 expired without an answer, no verification of the bill 
 will do. If Lord Thurlow meant to lay down, that 
 though there was no default by the defendant, the 
 mere verification of the amended bill is sufficient ; 
 with all deference, 1 do not agree to that («) (^)." 
 
 Where an injunction has been thus obtained, it 
 seems that a defendant will be allowed to move, before 
 answer, to dissolve it, upon affidavit in reply to that, 
 upon which the injunction has been so granted (c); 
 and it seems reasonable that the defendant, upon 
 such affidavit, should be allowed to show as cause for 
 dissolving the injunction, that the matter introduced 
 by way of amendment, was in the knowledge of tlie 
 plaintiff at the time he filed the original bill (<-/). 
 
 But, where an injunction has not been obtained 
 upon the original bill, and the plaintiff afterwards 
 amends, it has been determined that an injunction 
 
 (a) 18 Ves. 523. 
 
 (b) There is a case which occurred in Ireland, which is a remark- 
 able instance of the laxity of practice which, till a recent period, 
 had prevailed in that country. It was a motion to dissolve an 
 injunction, the plaintiff having amended his bill without leave : 
 the court, however, considering the amendments material, and 
 such as would have been allowed, and the plaintiff' offering terms, 
 which tended to prevent delay, continued the injunction^ upon the 
 plaintiff" paying the costs of the defendant's motion to dissolve. 
 Welsh V. Hannan, 2 Sch. & Lef. 516. This determination, it will 
 be observed, is remarkable for two important objections: 1st, thi' 
 case is founded upon a violation of the principle, that an injunc- 
 tion drops of course upon amendment; and, 2dly, it docs not 
 seem to have been inquired, when the subject matter of the 
 amendment came to the plaintiff"s knowledge. 
 
 (c> 2 Mcriv. 479. 
 {<!) Ibid.
 
 TO STAY PROCEEDINGS AT LAW. 129 
 
 will issue of course^ upon the defendant being in Abatement. 
 default for not answering the amended bill. The 
 determination {a) to this effect, which was made by 
 Lord Erskine (h), is supported by the authority of 
 a loose passage in Gilbert (c), and of an anonymous 
 case in Barnardiston [d). It is, however, so much at 
 variance with the general practice with regard to 
 amendment in injunction cases, so contrary to rea- 
 son, and so little supported by authority, that it is not 
 improbable, when the question is reconsidered, that 
 the court will expect the plaintiff to state, upon 
 affidavit, his reasons, for not having put the whole of 
 his case originally upon the record. 
 
 When an injunction has been obtained, and the Abatement 
 cause afterwards abates by the death of the defend- ^ ^^^ ^' 
 
 (a) Nelthorpe id. Law, 13 Ves. 323. 
 
 {b) There is a singular error with regard to this determination, 
 which has crept into the report of the case of Bhss v. Boscawen, 
 2 V. & B. 102. in which Lord Eldon was much pressed by the 
 counsel for the plaintiff with the above authorities, and particularly 
 with that of Nelthorpe v. Law. His lordship is represented as 
 saying, " In the case of Nelthorpe v. Law, I made that order with 
 reluctance, but was bound by the practice ;" unless, however, the 
 case was again brought forward before his lordship (of which no 
 notice is taken in the report), this must be a mistake, as, accord- 
 ing to the date, the case was decided almost two months before 
 Lord Erskine quitted the seals. The passage, however, is, at all 
 events, of importance, as recording Lord Eldon's opinion of the 
 impropriety of the practice. 
 
 (c) 183. 
 
 (d) 322. 
 
 K
 
 ISO 
 
 TO STAY PROCEEDINGS AT LAW. 
 
 Abatement. 
 
 Effect of 
 bankruptcy 
 of plaintiff. 
 
 No abate- 
 ment in the 
 Exchequer, 
 and earher 
 cases in 
 Chancery. 
 
 ant, the practice is to move, on the part of his repre- 
 sentatives, that the plaintiff may revive within a rea- 
 sonable time (usually a week), or that the injunc- 
 tion may be dissolved [a). If the cause abates by 
 the death of the plaintiff, the defendant may obtain 
 a similar order against his representative (b). 
 
 There is scarcely any point of practice, upon which 
 the authorities are so much at variance, or upon which 
 so little light can be derived from writers professing 
 to treat upon this subject, as the question, how far 
 the bankruptcy of the plaintiff, causes an abatement 
 of the suit (c) ? 
 
 In one of the earliest cases upon the subject, 
 v»here an injunction had been obtained by a per- 
 son who afterwards became bankrupt, Lord Hard- 
 wicke said, that bankruptcy w^as no abatement, and 
 that the plaintiff must show cause, or he would 
 dissolve the injunction [d). In another case, where 
 the defendant, after the bankruptcy of the plaintiff. 
 
 (a) Stuart r. Ancell, 1 Cox, 411. Hill v. Hoare, 2 Cox, 50. 
 Collard v. Hoare, ib. 
 
 ib) DukeofChandosv. Talbot, Sel.Ca.Ch. 24. Ward t>. Loring, 
 1 Fowl. Ex. Pr. 287. There is the following obscure note in 
 Tothill, 99. Webb v. Wise, a mortgage before an injunction, the 
 court declares that it shall go and be revived, notwithstanding no 
 bill of revivor. 10 Car. 
 
 (c) Where a defendant becomes bankrupt, the plaintiff cannot 
 dismiss his bill without costs, Rutherford v. Miller, 2 Anst. 458. 
 a great hardship upon the plaintiff, as the defendant may move to 
 dismiss the bill, with costs, for want of prosecution, and so drive 
 him to speed the cause, although he may be able to obtain all the 
 relief which he seeks under the commission, IMonteith v. Taylor, 
 9 Ves. 615. 
 
 ((/) Anon. 1 Atk. 263.
 
 TO STAY PROCEEDINGS AT LAW. ISI 
 
 had obtained the common order to dismiss for want Abatement. 
 of prosecution with costs; Lord Hardwicke dismissed 
 a petition of the bankrupt to be relieved from the 
 costs [a). So in a cause before Sir T. Sewell (/;), 
 and in three in the Exchequer (c), bills were dis- 
 missed for want of prosecution, and in two of those 
 instances with costs ; the court observing, that bank- 
 ruptcy was no abatement, and ought not to prevent 
 the defendant from being reimbursed, if he could, 
 the expenses of the suit. There has been, however, 
 great inconsistency in the doctrine of the Ex- 
 chequer, for that court, though holding the bank- 
 ruptcy not an abatement, has nevertheless refused 
 to permit the plaintiff to speed the cause. If the 
 bankruptcy was not an abatement, what right had 
 they, as observed by Lord Eldon (f/), to dismiss 
 the bill? why not let him speed the cause, and 
 
 go on ? 
 
 Lord Thurlow, on the other hand, in two cases (e) Bankruptcy 
 (in the former of them very distinctly) delivered an Jnent, or 
 opinion to the contrary; and it may be collected from tantamount 
 
 1 . ^ -11 t'^ '^" abatc- 
 
 the observations of Lord Eldon, in the late case mcnt, in 
 of Randall v. Mumford (/), that the bankruptcy. Chancery, 
 if not an abatement, is tantamount to an abate- 
 ment. The difficulty of determining the question 
 
 (a) Ex jmrte Berry, 1 Dick. 81. 
 {b) Hall V. Chapman, 1 Dick. 348. 
 
 (c) Tait V. Carwick, 1 Atk. 26S. n. Bramhall v. Cross, ib. 
 Davidson v. Butler, ib. S. C. 2 Anst. 460. n. 
 
 (d) 18 Ves. 426. 
 
 (e) Sellas v. Dawson, 1 Atk. 263. n. S. C. 2 Anst. 460. n. 
 Linpard v. Webb, 3 Bro. C. C. 135. 
 
 (/) 18 Ves. 424. 
 
 K '2
 
 }'<i2 'iO S'J'AY I'ROCKlilDlNGS AT I.AW. 
 
 Abatement, is, ill nuiiiy cuscs, eliidccl by ordering upon the 
 " motion, to dismiss the bill with costs for want of 
 
 prosecution j that the assignees do file a supple- 
 mental bill within a reasonable time, or in default 
 thereof, that the plaintiff's bill do stand dismissed {a) : 
 this in one case was done witliout costs, and it 
 appears probable, from what fell from the court in 
 the other, that it would be so in general. 
 
 The above noticed case of Randall v. Mumford 
 is extremely valuable, as containing Lord Eldon*s 
 observations upon the practice of the Court of 
 Chancery, with regard to injunctions upon the bank- 
 ruptcy of the plaintiff. ** Here," observed his Lord- 
 ship, "it is not the practice to dissolve the injunction ; 
 but the motion is, that the assignees shall come in, 
 or the injunction be dissolved, wdiich shows that the 
 court takes notice of the bankruptcy. In Sellas 
 V. Dawson, Lord Thurlow seems to have got this 
 length, that the order to dismiss w^as a nullity, and 
 therefore not to be discharged ; that the bankruptcy, 
 if not an abatement, was in the nature of an abate- 
 ment J and he undoubtedly held, that the court has 
 never permitted itself to be embarrassed by the dif- 
 ficulty of giving notice to the assignees. Suppose 
 the case of the plaintiff, in a bill for an injunction, 
 becoming bankrupt, that the assignees w41l not adopt 
 his suit, and the difficulty of giving them notice. 
 There are many suits that a bankrupt may main- 
 tain, and if he shows a clear case for an injunction, 
 it is difficult to justify an order, that if the assignees 
 are not brought before the court in a reasonable 
 
 (a) French v. Barton, IS Vcs. V25. Randall v. Mumford,. sup.
 
 TO STAY PROCEEDINGS AT LAW. !■> 
 
 time, the injunction shall be dissolved; perhaps be- Abatemeut. 
 fore the certificate, and in the plainest case for up- 
 holding the injunction between those parties. This 
 court, however, without saying whether bankruptcy 
 is or is not strictly an abatement, has said, that ac- 
 cording to the course of the court, the suit is become 
 as defective as if it was abated ; and as the assignees 
 will have the benefit of the suit, and assuming in 
 practice that he who is a bankrupt will continue so, 
 the course which the court has taken is, to require 
 him to bring his assignees before it by bill of revivor, 
 or supplemental bill, in the nature of a bill of revivor, 
 or by whatever name it is called ; and the court 
 supposing that the bankrupt will find the means of 
 giving the assignees notice, and not troubling itself ' 
 with that difficulty, dissolves the injunction, fre- 
 quently with great injustice, if they do not come 
 here/' 
 
 The practice in the Exchequer is stated by Mr. 
 Fowler («) to be similar ; it being a motion of course 
 that unless the assignees file a supplemental bill within 
 a limited time (usually a fortnight), the injunction 
 may stand dissolved. This practice is another in- 
 stance of the inconsistency to which that court is 
 driven by the doctrine already noticed ; for at the 
 same time that it holds the bankruptcy not to be an 
 abatement, it so far takes notice of it as to dissolve 
 the injunction, unless the assignees become parties 
 to the suit. 
 
 {(i) Vol. 1. 2«(?.
 
 IS I 
 
 TO STAV PROCEEDINGS AT LAW. 
 
 Dismissal of If three terms have elapsed without any step being 
 
 ' , taken by the plaintiff, the injunction, as we have 
 
 seen, according to one of Lord Bacon's ordinances, 
 falls of itself, without further motion (a). The de- 
 fendant is besides, entitled to an order to dismiss the 
 bill for want of prosecution, which may be obtained 
 mthout notice. A courtesy which had prevailed 
 among the clerks in court, requiring the defendant 
 to hand over a note of his intention, has been ex- 
 pressly disavowed (/;). The circumstance of an in- 
 junction having been obtained, either for want of an 
 answer (c), or upon the merits [d)y is no objection to 
 the motion. Nor is showing cause against dissolving 
 an injunction, such a proceeding as to prevent the 
 dissmissal of a bill for want of prosecution (e). 
 
 The court, however, will sometimes, under special 
 circumstances, and upon payment of the costs of the 
 order of dismissal, and of the application, restore the 
 bill (y^) ; but not where the sole object, is to agitate 
 the question of costs (^•). 
 
 By an order of the 21st of May, 1725, it is directed, 
 that if the plaintiff does not set down the cause for 
 
 (a) Ante, p. 118. Beames' Orders, 14. 
 
 (A) Degi-aves v. Lane, 15 Ves. 291. Naylor v. Taylor, 16 Ves. 
 127. Jackson v. Purnell, ib. 20k Browne v. Byne, 1 V. & B. 
 310. Attorney General v. Finch, ib. 368. 
 
 (c) Day V. Ince, 3 V. & B. 170. 
 
 [d) Hannani v. South London Water Works, 2 Meriv. 61. 
 Bliss V. Collins, cit. ib. 
 
 {c) Earl of Warwick v. Duke of Beaufort, 1 Cox, 111. 
 
 (/) Jackson v. Purnell, sup. Morris v. Owen, 1 V. & B. 523. 
 Fuller V. Willis, 3 V. & B. 1. Bellingham v. Bruty, 1 Mad. 
 Rep. 265. 
 
 {g) Hannam v. South London Water Works, ante.
 
 TO STAY PROCEEDINGS AT LAW. 
 
 135 
 
 hearing the term after publication has passed, the Dismissal of 
 
 defendant may apply to set down the cause the term [ 
 
 after that ; but in injunction causes, the defendant is 
 at liberty to set down the cause the term next after 
 publication passed («). 
 
 The practice of granting injunctions, though esta- injunctions 
 blished as well by ancient and constant usage, as by ""ticed by 
 
 J o ' ^ t]^g courts ot 
 
 the memorable discussion in the reign of James I. law. 
 yet received little attention from the courts of 
 common law (h) : accordingly we find in the time of 
 Edward IV. the judges of the King's Bench tell- 
 ing a plaintiff at law, who had been restrained by 
 injunction after verdict, that they would give judg- 
 ment if he chose to pray it, and that he could not 
 be injured by so doing, as, though he might be com- 
 mitted to the Fleet, they would discharge him upon 
 a habeas corpus (c). Even in the time of William III. 
 and Queen Anne, motions were refused to enlarge 
 the term where the plaintiffhad a judgment in equity, 
 but had been restrained by injunction (^). 
 
 The strictness of this practice has, however, since 
 
 (a) Beames' Orders, 333. 
 
 (b) 3 Woodes. Lect. 398. 
 
 (c) 22 E. 4. 37. 
 
 {d) Anon. Salk. 257. Holt, C. J., said he had no mind to build 
 a new clock-house ; alluding to the tradition of a clock-house having 
 been built at Westminster out of a fine of 800 marks set upon 
 Hengham, C. J., for altering, out of compassion, a fine set upon a 
 poor man, 3 Bl. Com. 4-08.
 
 186 TO STAY I'UOCEF.DINGS AT I-AW. 
 
 Dismissal of been relaxed ; and the courts of law, where necessary, 
 
 ' take notice of injunctions : thus in several cases in 
 
 which a defendant has stayed proceedings by injunc- 
 tion, he shall not afterwards have the usual notice to 
 plead, of trial, &c. {a). 
 
 A judgment of nonpros cannot be regularly signed 
 ■^ pending an injunction (b). It has also been deter- 
 mined, contrary to former cases (c), that where a 
 plaintiff has been restrained by injunction for a 
 year from taking out execution, he may do so with- 
 out a scire facias (c?). 
 
 Lord Mansfield laid it down as a rule, that though 
 he would not wait at nisi prius for any proceedings 
 in equity, yet that he would on no account take a 
 cause out of its course for the purpose of defeating 
 them : and this is the present practice {e). 
 
 (a) Tidd, Pr. 360, 361. 371. 483. 717. 
 {b) Bowser v. Price, ib. 473. 
 
 (c) Winter v. Lightbound, 1 Stra. 301. Booth v. Booth, 6 Mod. 
 288. Salk. 322. Hodson v. Earl of Warrington, 3 P. W. 36. 
 (rf) Mitchell V. Cue, Burr. 660. 
 (e) Goldsmidt u. Marryatt, 1 Camp. 559.
 
 TO STAY PROCEEDINGS, SiC. iSJ 
 
 Ecclesiastical 
 
 Courts. 
 
 CHAPTER VII. 
 
 Of Injunctions to stay Proceedings in the Spiritual 
 Courts y the Courts of Admiralty^ 8^x. 
 
 Injunctions to restrain parties suing in the Spi- 
 ritual or Admiralty courts differ as materially from 
 Prohibitions, as it has been already shown to be the 
 case, with regard to Injunctions to stay proceedings 
 at law («). Courts of Equity, observed Lord Hard- 
 wicke, do not grant injunctions where the eccle- 
 siastical court proceeds without jurisdiction, but 
 where there are some equitable circumstances be- 
 tween the parties (h). 
 
 However, though the courts do not profess to 
 proceed upon the ground of a defect of jurisdiction, 
 yet it is remarkable that one of the most ordinary 
 instances of this species of interposition, seems ex- 
 clusively founded upon it, viz. where a suit is in- 
 stituted in the spiritual court for tithes, and a modus 
 is set up as a defence (c). Lord Hardwicke, upon 
 an application of this nature, observed, that he could 
 only grant an injunction upon the same grounds that 
 a court of law would grant a prohibition propter 
 triationis defectum (d). In these cases it must be 
 
 (n) Ante, p. 4. 
 
 (b) Barnard. Ch. Rep. 29. 
 
 (c) Abthorp V. Jennings, Bunb. 27. Blacket v. iMiiney, ib. 17(i. 
 Salmon v. Rake, ib, n. 
 
 (d) Rothcram v. Fanshaw, .0 Atk. 62S.
 
 13H TO STAY PROCEEUINOS IN 
 
 Ecclesiastical shown that the modus has been pleaded in the Ec- 
 _^^^^J^^___ clesiastical court and denied there, for if adfnitted, 
 the court may go on (a). Therefore, the mere sug- 
 gestion of a modus, is not a ground to induce the 
 court of equity to interfere (^). 
 Trusts. Another instance of this species of interposition 
 
 is founded upon the exclusive jurisdiction in cases 
 of Trust : therefore wherever there is a trust, or any 
 thing in the nature of a trust, a Court of Equity 
 interposes, to restrain the prosecution of a suit in the 
 Ecclesiastical court for payment of a legacy. This 
 is done either where a cause is at the time depending 
 in a court of equity, when an injunction is granted 
 until the rights of the parties are determined at the 
 hearing (c) : or where a trustee is seeking payment, 
 into his own hands, of a legacy left to his cestui que 
 trust (^d) : or where a father is suing for a legacy left 
 to an infant child (e), or a husband for a legacy to 
 his wife. As in the last of these cases, the spiritual 
 court has no means of compelling the husband to 
 make an adequate settlement upon the wife, a prac- 
 tice has arisen (for which there is a very ancient 
 precedent in Tothill (J^) ) according to which a court 
 of equity, in order to secure the equitable rights of 
 the wife, restrains the husband in the prosecution of 
 the suit in the spiritual court (g). 
 
 (a) Rotheram v. Fanshaw, 3 Atk. 628. 
 {b) lb. 
 
 (c) Parre v. Tipelady, Gary, 104. Stonehouse v. Stonehouse, 
 1 Dick. 98. Smith v. Kempson, 2 Dick. 769. 
 
 (d) Hill V. Turner, 1 Atk. 516. 
 
 (e) Free. Can. 54.7 . 
 
 {J") Tanfield v. Davenport, Toth. 114. 
 
 (g) Harrison v. Buckle, 1 Str. 238. Gardiner v. Walker, ib.
 
 THE ECCLESIASTICAL COURTS, &C. 139 
 
 A case has been referred to, in which there Eccletiastical 
 having been mutual accounts between the parson ' 
 
 and a parishioner, an injunction was granted to re- 
 strain the former from proceeding in the Ecclesi- 
 astical court for an account of tithes (a). It is said 
 that Lord Ellesmere usually granted injunctions to 
 stay suits upon the statute 2 Edward VI. to recover 
 treble damages for not setting out tithes, but per- 
 mitted the parties to sue otherwise as they would {b). 
 Injunctions to the Spiritual Court were also ex- 
 tremely common in the Star Chamber (c). 
 
 Injunctions were in former times frequently granted Exchequer. 
 by the court of Chancery to stay proceedings in the 
 Exchequer (d). It is also said, that if after a bill filed 
 in the Exchequer the defendant should exhibit another 
 bill against the plaintiffin the court of Chancery ; and 
 it should appear upon a reference to the master, that 
 the bill in the Exchequer was first filed, and that the 
 bill in Chancery is for the same matter, the court 
 
 503. Anon. 1 Atk. 4-91. Jewson v. Moulson, 2 Atk. 419. 
 Nicholas v. Nicholas, Prec. Can. 54-8. Meals v. Meals, 1 Dick. 
 373. 5 Ves. 739. n. Clancey's Equitable Rights of married Wo- 
 men, 198. e^ seq. 
 
 (fl) Anon. 1 Mad. Ch. 129. 
 
 {b) P. R. C. 32. Vide also Brackley v. Pierson, Toth. 113. 
 
 (c) Hudson's Tr. 2 Coll. Jurid. 19G. In a copy of this treatise 
 in Lincoln's Inn library (Coxe MSS.), it is ascribed to Judge 
 Mallet; but the memorandum of Lord Keeper Finch, in a copy 
 in the Harleian MSS. proves it to have been Hudson's. There 
 are a great many MS. copies of it, both among the Harleian and 
 Hargrave MSS. 
 
 (d) Catwallell V. Wynn, Toth. 113, Tresswell v. Guibon, ib. 
 Davis V. Wakefield, 3 Ch. Rep. 1. Roberts v. Wilks. ib. 5. S. C. 
 2 Freem. IGl. Earl of Ncwburgh v. Wren, 1 Vorn. 220.
 
 140 TO STAY JMIOCKKDIXGS INf 
 
 Cmri of of Excliequcr will grant an injunction to restrain 
 xc ie(/uer. pYoceed'mg upon the bill in Chancery («). 
 
 There arc sev-eral old cases, in which persons con^ 
 ceiving themselves to be privileged as being officers 
 or accountants of the court of Exchequer, have ob- 
 tained injunctions to restrain plaintiffs from proceed- 
 ing against them in the court of Chancery (b). This 
 practice, however, was very soon exploded, and the 
 necessary comity between the two courts has long 
 been established. Thus in the case of Coysgarne 
 v. Jones (c), the cause, after a decree in the Ex- 
 chequer, was heard, but only because that decree 
 had not been complete. In a recent case, the court 
 of Exchequer having refused an injunction, a bill 
 was filed in Chancery, and an application made for 
 an injunction : Lord Eldon, after reprobating the 
 proceeding, observed, that unless some precedent 
 could be produced, the court would not interfere 
 until the hearing ; and that he must take the decision 
 of the court of Exchequer to be right, and accord- 
 ingly refused the application (^). 
 
 Admiralty An injunction to stay proceedings in the Admi- 
 
 CourtS, &C. ,^ \ . • n , 1 . n , . 
 
 ralty court, in a suit tor the condemnation of a ship, 
 has been refused, where it has appeared that the 
 court of Admiralty, has had sufficient authority to 
 investigate the circumstances (e). There are, how- 
 
 (a) 1 Fowl. Ex. Pr. 270. 
 
 (b) East t;. Bittenson, Gary, 96. Lewen v. Fawdesley, ib. 136. 
 S. C. Choice, Cases in Chancery, 143. Vendall v. Harvey, Nelson, 
 19. 
 
 (c) Amb. 613. 
 
 (d) Reynolds v. Pitt, 19 Ves. 138. 
 
 (e) Anon. 3 Atk. 3.50.
 
 THE ECCLESIASTICAL COURTS, kc. 141 
 
 ever, instances in the books not only of injunctions Admiraltjj 
 to stay proceedings in that court (ff), but also the ^^^^^^^^^^ 
 Court of Wards (b\ the Dutchy Court (c), the 
 Mayor's Court [d\ the Court of Stannaries (e), and 
 proceedings in the Petty Bag by scire facias or 
 privilege, which are stayed, it is said, not by writ, 
 but by order (y). 
 
 It was decided by Lord Clarendon, upon great Foreign 
 consideration, that an injunction did not lie to stay 
 a suit at Leghorn or any other foreign parts (^). 
 The accounts of this determination, which is reported 
 in several of the books, are various : in Freeman it 
 is said to have been made upon the advice of all the 
 judges. In Nelson it is stated, that, though the 
 judges were of opinion against the injunction, all 
 the Baro7is were of the contrary opinion. The 
 reporter in Chancery Cases takes no notice of the 
 judges having been consulted, but adds a guere to 
 the judgment, observing that the bar were of a con- 
 trary opinion. The doctrine is certainly at variance 
 with one of the first principles of a court of equity, 
 which, without regard to the situation of the subject 
 matter in dispute, considers only the equities arising 
 from the acts of the parties, and acting iw personam 
 
 (a) Aylett v. Aylett, Toth. ll*. 
 
 {b) Smith V. Snotsbull, ib. 
 
 (c) Levington v. Woton, 1 Ch. Rep. 52. 
 
 {d) Mildred v. Xeate, 1 Dick. 279. Barken-. Goodair, 11 Ves. 
 78. Bristow v. Potts, cit. ib. Row v. Dixon, 1 Mad. Ch. 137. 
 
 (e) Trinick v. Bordfield, Toth. 182. 
 
 (/) P. R. C. 202. Vide Hodson v. Karl of Warrington, ,S P. W. 
 35, where this distinction is not noticed. 
 
 (^) Love V. Baker, 1 Ch. Ca. G7. S. C. Nels. lO:?, noin. Lowe 
 V. Baker, 2 Frceni, 125.
 
 14'2 TO STAY rnOCEKDINGS Ix\ 
 
 Foreign will imprison persons disobeying its orders (a). There 
 Courts. j^ ^ ,^^^^^ -j^ ^j^^ Hargrave MSS. of a motion for an 
 
 injunction to restrain the proceedings of the younger 
 children of the Earl of Portland in the courts in 
 Holland, for part of their father's personal estate, 
 which they claimed under his marriage settlement, 
 it being contended that a legacy under his will was 
 a satisfaction. The injunction was refused, on the 
 ground of the defendant not being in contempt, 
 and not having prayed time to answer ; but no 
 doubt seems to have been entertained upon the 
 jurisdiction, as to which a case of Grey v. the Duke 
 of Hamilton was cited (b). In the case of Wharton 
 V. May (c), it was made part of the decree, that two 
 of the defendants should be restrained from entering 
 up any judgment, or carrying on any action in the 
 court of General Session in Scotland. Since this 
 
 (a) Archer v. Preston, 1 Eq. Ab. 133. Earl of Arglasse v. 
 Muschamp, 1 Vern. 75. Lord Kildare v. Eustace, ib. 419. Toller, 
 V. Carteret, 2 Vern. 494-. 1 Salk. 404. Penn v. Lord Baltimore, 
 cit. ante. Earl of Derby v. Duke of Athol, 1 Ves. 202. 
 Roberdeau v. Rous, 1 Atk. 543. Foster v. Vassal, 3 Atk. 587. 
 Lord Cranstown v. Johnston, 3 Ves. 170. White v. Hall, 12 Ves. 
 321. 
 
 (b) Lord Portland's case, 114. Harg. MSS. 166. There is a 
 modern case in which plaintiffs being proceeding both in the court of 
 Chancery and in a court at Amsterdam, having made their election 
 to proceed in the latter ; the proceedings in the court of Chancery 
 were stayed, and the plaintiffs directed to pay the costs of their pro- 
 ceedings there subsequent to their election. This order must have 
 been founded upon the competency of the court of equity, if not 
 to stay proceedings abroad (in case the plaintiffs had elected to 
 proceed here), at least to refuse to give assistance here unless they 
 abandoned their suit abroad. Pieters v. Thompson, Coop. 294. 
 
 (r) 5 Ves. 27.
 
 THE ECCLESIASTICAL COURTS, &C. 148 
 
 sheet has gone to press, the author has been informed Foreign 
 that a similar order was made, upon motion, in the _^^^^^^^____ 
 
 cause of Kennedy r. Earl of Cassilis. 
 
 Though the cases are somewhat at variance, it Special 
 seems to be the better opinion, that the Common In- °»otion- 
 junction does not extend to stay proceedings in the 
 Spiritual or Admiralty courts, and that an order for 
 that purpose must be moved for specially («). 
 
 (a) Anon. 1 P. W. 301. Bunbury, 27. Barnard. Ch. Rep. 28. 
 Chandler v. Gascoyne, 1 Dick. 281. Macnamara v. Macguire, 
 ib. 223.
 
 H-4 INJUNCTIONS TO STAY WASTE. 
 
 Wlial (ids 
 are deemed 
 •waste. 
 
 CHAPTER VIII. 
 
 Of Iiy unctions to stay Waste. What Acts are deemed 
 
 Waste. 
 
 In treating upon the subject of Waste it will be 
 convenient, 1st, to enumerate shortly those ^c/5 which 
 are deemed waste : 2dly, to consider under what 
 circumstances, and for and against what persons 
 a court of equity interposes to restrain the com- 
 mission of waste ; and, Sdly, to show, as consequential 
 to it, in what manner it compels an account, or 
 directs the application of timber wrongfully cut, or 
 accidentally severed. 
 
 The consideration of the Mode in which injunctions 
 to stay waste are obtained and dissolved, will be de- 
 ferred to the concluding part of this treatise, where 
 the decisions upon the practice of the courts in this 
 and other cases of Special Ly unction will be fully 
 noticed. 
 
 Waste, which is of two sorts. Voluntary and Per- 
 missive y is defined by Lord Coke to be spoil or de- 
 struction in houses, gardens, trees, or other corporeal 
 hereditaments, to the disinherison of him that hath 
 the remainder in fee simple or fee tail (a). By the 
 
 (a) Co. Lit. oo, a.
 
 INJUNCTIONS TO STAY WASTE. 145 
 
 feudal law, where feuds were originally granted only f^'^'ni acts 
 
 , . . /. 11 1 are deemed 
 
 for life, the commission ot waste by the vassal was a xmste. 
 
 cause of deprivation («). By our common law it 
 
 was only punishable in three persons : — Guardian in 
 Chivalry, Tenant in Dower, (and though some doubt 
 has been entertained as to the last (J)) ) Tenant by 
 Curtesy. The statutes of Marlbridge (c) and of 
 Gloucester (rf), afterw^ards extended the protection 
 of the writ of waste, which lay at common law, to 
 Tenants for Life and Tenants for Years (e). 
 
 Waste in timber consists in cutting down, lopping, 
 
 (a) Craig, 38. Wright, 44. 2 Bl. Com. 282. 
 
 (6) Reg. 72. Bro. Ab. Tit. Waste, 88. 2 Inst. 301 . 2 Bl. Com. 282. 
 
 (c) 52 H. 3. c. 23. 
 
 (r/) 6 Edw. 1. c. 5. 
 
 (e) A modern author, whose writings are extremely valuable 
 for the extensive research which they evince, has cited a passage 
 from Bracton (Lib. 4. c. 18.) to show that both tenants for life 
 and other farmers were punishable at common law, and that these 
 statutes were only enacted in affirmance of it. (Reeves' Hist, of 
 the English Law, vol. 1. 186. vol. 2. 73, 74. 148. n.) It must be 
 admitted that the citation from Bracton supports the doctrine 
 contended for. This, however, is probably the only passage in 
 any author, where it is so laid down. On the other side we 
 have the authority of Lord Coke, repeated in several parts of his 
 writings : who has been followed by every author that has treated 
 upon the subject, and every judge who has had occasion to 
 allude to it: we have two statutes at a period when it is highly 
 improbable that the legislature should have passed laws to 
 enact what was already admitted: and if doubts had existed 
 upon the subject, we should either have heard of them from the 
 preambles, or some declaratory language in the statutes them- 
 selves, or they would have been noticed by contemporary writers. 
 Lastly, the reason that is always given for this diversity, viz. 
 " that the estate of the three former was created by the law itself, 
 which, therefore, gave a remedy against them ; but that the latter 
 
 L
 
 lif) 
 
 INJUNCTIONS TO STAY WASTE. 
 
 IVIial acts 
 are deemed 
 ivasle. 
 
 Waste in 
 trees. 
 
 Estoveis. 
 
 topping, or doing any act whereby it may be brought 
 to decay [a). Oak, ash, and elm are timber in all 
 places (h), and by the custom of different counties 
 birch, beech, walnut, willow, hornbeam, blackthorn, 
 &c. (c)j the cutting of many sorts of trees which are 
 otherwise not timber, as hornbeams, hazels, willows, 
 sallows, &c. will, from the situation in w^hich they are 
 planted (as if they support a bank, or grow within 
 the site of and protect a house) be considered 
 waste (f/). Any thing tending to the destruction of 
 the subject demised is waste ; thus, though the 
 lessee may cut underwood, yet the eradicating it, or 
 cutting it at unseasonable times, or destroying the 
 germins, is waste (e). Where the underwood is the 
 most important part of the produce, it will not be 
 waste to cut timber, if necessary for its growth (jT). 
 And if tr^es be excepted out of a demise, ^doaste 
 cannot be committed by cutting them down (o). 
 
 The cutting of trees is justifiable for Estovers, as 
 house-bote, hay-bote, plough-bote, and fire-bote. 
 The tenant may take oak, elm, or ash for the repair 
 of the house : and if they are under 16 years growth. 
 
 came in by the demise and lease of the OAvner of the fee, who might 
 have provided against the commission of waste," is so satisfactory, 
 that perhaps, upon the whole, it may not be considered as too 
 hazardous a conjecture, that the passage in Bracton is erroneous. 
 
 {a) Co. Lit. 53. a. 
 
 {J}) lb. 2 Roll. Ab. 814. Dy. 65. a. 
 
 (c) Co. Lit. 53. a. Mo. 812. 2 Roll. Ab. 817. 819. Cro, Jac. 
 126. Cro. Car. 531. 6 Com. Dig. 505. 2 P. W. 606. 
 
 id) Co. Lit. 53. a. Hob. 219. 
 
 (e) 2 Roll. Ab. 815. Co. Lit. 53. a. Cro. Jac, 126. 
 
 (/) 2 Ves. 162. 16 Ves. 176. 
 
 (s) Goodright u. Vivian, 8 East, 190.
 
 INJUNCTIONS TO STAY WASTE. 147 
 
 and there is no underwood, it is said that lie may Jrhat acts 
 take them for fuel. He has this privilege of com- ^^.^^^^ 
 
 mon right, so that a covenant that he may take • 
 
 estovers without committing waste is void, and if 
 there be a covenant that he may take by assignment, 
 it has been determined tliat he may take tdthout {a). 
 There is no difference if the lessor covenants to re- 
 pair, for if he neglects, the lessee may nevertheless 
 cut timber for that purpose (J)). 
 
 If the tenant cuts more than is actually necessary 
 for repairs, or if after cutting down the trees he 
 suffer them to lie on the ground and decay, it is 
 waste (c). It is also a rule, which appears to have 
 been rigidly adhered to, tliat the trees shall be ap- 
 plied to the specific purpose for which they are 
 allowed to be cut. Thus if the tenant cut down 
 trees, which in the working turn out to be unfit for 
 the use designed, he cannot convert them to any 
 other use [d) ; nor sell them and buy fit wood with the 
 money (e), and even if he sell them and buy them again, 
 and then employ them in repairs, it is waste (y ) ; 
 nor can he, by cutting down timber, repay himself 
 the money he has expended in repairs {g). Thus 
 if the lessor having covenanted to repair, neglects 
 to do so, the lessee, though he may cut timber, 
 cannot pay the wages of the workmen out of it (//). 
 
 in) Co. Lit. 53, a. Hob. 296. Cro. Eliz. 604. 7 Bac. Ab. 2.52. 
 
 (*) Bro^vnl. 240. Mo. 23. pi. 80. 7 Bac. Ab. 261. 
 
 (c) Co. Lit. 53. b. 
 
 id) Earl of Pembroke's case, Clayt. 47. pi. 81. 
 
 (e) Attorney-general -p. Lord Stawell, 2 Anst. 601. 
 
 (/) Co. Lit. 53. b. 
 
 [g) lb. Gower V. Eyre, Coop. 156. 
 
 (/i) 7 Bac. Ab, 261. 
 
 l2
 
 148 INJUNCTIONS TO STAY WASTE. 
 
 JVfint acts In a case before Lord Tlmrlow, a tenant for life, 
 Zastff"^^^ witli power under an enclosure act to mortgage for 
 ■ the cx])enses of an inclosure, felled timber and ap- 
 plied the produce to that purpose ; a decree was, 
 however, made against his assets for an account of 
 the timber cut («). Ecclesiastical bodies are an ex- 
 ception to this rule ; and it seems that they may sell 
 the timber on one estate, and apply the produce to 
 the repairs of any other (h). 
 Waste in If the tenant cut down or destroy fruit trees, if 
 parks, ' growing in a garden or orchard, it is waste ; but if 
 ponds, &c. torn up by the wind, he may afterwards cut them (c). 
 Destruction of saffron heads in a garden has been 
 said not to be waste (c?), but the ploughing up 
 strawberry beds clearly is (e). If tenant of a dove- 
 house, park, warren, fish-pond, or similar tene- 
 ment, take so much of the stock, or neglect the 
 means of preserving it, so that there is not as much 
 left, as he found at the time of the demise, it is 
 waste (jf ). It is said, however, that unless it be a 
 \ free warren by prescription, the tenant may destroy 
 \ coney burrows {g) : but in a modern case, this 
 distinction was not attended to (Ji). 
 
 \ 
 
 (a) Lee v. Alston, 1 Bro. C. C. 194. 3 ib. 37. 1 Ves. jun. 78. 
 
 ih) Knight V. Mosely, Amb. 176. Wither v. Dean, &c. of 
 Winchester, 3 Meriv. i2\. Herring v. Dean, &c. of St. Paul's, 2 
 Wils. Ch. Rep 1. 
 
 (c) Co. Lit. 53. a. 
 
 {d) Bro. Ab. Waste, 143. 
 
 (e) Watherell v. Howells, 1 Campb. 227. 
 
 (/) Hob. 236. Co. Lit. 53. b. Vavesour's case, 2 Leon. 222. 
 Anon. 4 Leon. 240. 
 
 {g) Sill V. Mole, Toth. 210. 2 Roll. Ab. 815. Moyle v. Mayle, 
 Owen, 66. P. R. C. 213. 22 Vin. Ab. 521. 
 
 (Ji) Angerstein v. Hunt, 6 Ves. 488.
 
 INJUNCTIONS TO STAY WASTE. 119 
 
 Any material alteration in the nature of the thing TVhat acts 
 demised is waste, though the value be not diminished, ^^.^^^^ 
 
 nay, even though it be increased, for the landlord is 
 
 thereby in danger of losing evidence of the identity ^j^^ altera- 
 of his property. Accordinojly, the conversion oftionofthe 
 
 n-i n i ■ n property de- 
 
 arable nito wood, or of meadow mto arable, pro- niised. 
 
 vided it be ancient pasture, is waste ; and injunctions 
 
 have in all times been granted to prevent it (a). 
 
 Converting a meadow into an orchard, or ploughing 
 
 up a hop ground and sowing it with grain is waste (Zj). 
 
 It has been said that the division of a great meadow 
 
 into a number of parcels, is not w^aste (c). BiUt the 
 
 conversion of a corn-mill into a fulling-mill, or a 
 
 brew-house into any other office, is v/aste (c?) ; and 
 
 in a modern case Mr, Justice Buller was clearly of 
 
 opinion, that the changing a logwood-mill into a 
 
 cotton-mill, was waste [e). If the lessee pulls down the 
 
 house and build a new one, it is waste, if the new one 
 
 is either larger or smaller than the one demised (jT). 
 
 In a late case one of the principal grounds upon 
 
 which an injunction was granted against proceeding 
 
 with alterations in a house, was because they tended 
 
 wholly to change the nature of the property, by 
 
 ^a) Hastings v. Cowper, Toth. lit. Lord Howard v. Ridley, 
 ib. 290. Atkins v. Temple, 1 Ch. Rep. 13. Cole v. Peyson, 
 1 Ch. Rep. 57. Fermier v. IVIaund, ib. 116. Trcgonweil v, 
 Lawrence, 2 Ch. Rep. 49. Gunning v. Gunning, 2 Show. 8. 
 Clarke v. Thorp, 2 Ves. 233. Lord Grey de Wilton v. Saxon, 
 6 Ves. 107. 
 
 (b) Owen, 66. 
 
 (c) 2 Lev. 17t. 
 
 (d) Green v. Cole, 2 Saund. 252. 1 Lev. 309. 1 Mod. 94-. 
 
 (e) Bridges v. Kilburn, cit. 5 Ves, 689. 
 
 (/) 22 Vin. Ab. 439. Bro. Waste, pi. 1 13. cit. ib.
 
 150 
 
 INJUNCTIONS TO STAY WASTE. 
 
 JVhat ads 
 arc deemed 
 
 tvnsle. 
 
 M^'astc in 
 
 llOLlSCS. 
 
 Waste 
 arising from 
 the act of 
 God. 
 
 converting a private house, into a shop for the pur- 
 pose of a coachmaker's business [a). 
 
 Waste in houses consists either in pulling down 
 or prostrating them, or suffering them to remain 
 uncovered, whereby the timbers become rotten, or 
 the walls decay for want of daubing (Z»). The tenant 
 must at his peril keep the house from wasting, though 
 there be no timber on the premises ; but if the 
 house was ruinous at the time of the lease, and fall 
 within the term, this is not waste (c). Lord Coke 
 has laid down that if tenant builds a new house, it 
 is waste (d): there are, however, several authorities 
 to the contrary (e), and it is probable, as it has 
 been suggested, that he must be understood in this 
 passage to be speaking of the lessee rasing the house 
 and building another less large (/"). 
 
 In general waste which ensues from the act of 
 God, as lightning or tempest, is excusable (5), but 
 the tenant must repair it as soon as possible, for if 
 he suffers the house to decay from remaining un- 
 covered, it becomes waste. At common law the 
 tenant was punishable if the house was burnt by 
 negligence or mischance, but by the 6 Ann, c. 31. 
 it is provided that no action is to be prosecuted 
 
 (a) Bannister u. Sadler, 14 Ves. 526. 
 
 (6) Co. Lit. S3, a, 
 
 (c) 22 Vin. Ab. 443. 
 
 (c?) Co. Lit. 53. a. 
 
 (e) Keilway, 38, b. Lord Darcy v. Askwith, Hob. 238. Cecil 
 V. Caves, 2 Rol. Ab. 815. 
 
 (/) 7 Bac. Ab. 256. 
 
 is) ^O' ■'-'it' 53. a. Brooke notices a singular distinction, viz. 
 that if strangers, enemies to the king, destroy a house, it is waste ; 
 but not if it be done by traiterous subjects.
 
 INJUNCTIONS TO STAY WASTE. 1^1 
 
 against any person in whose house or chamber any l^'fict ads 
 fire accidentally begins (a). But under a covenant ^^^i^ 
 
 to repair^ it has been determined that the lessee is 
 
 bound to rebuild a house destroyed by lire, and 
 where, after the expiration of a written lease, con- 
 taining a covenant to repair, the tenant verbally 
 agreed to hold over, paying an increased rent, and 
 nothing more passed between the parties as to the 
 terms of the new tenancy ; it was holden that the 
 tenant must be presumed to hold under the cove- 
 nants of the former lease as far as they were appli- 
 cable to his new situation, and accordingly, the 
 premises being burnt down by fire, that he was 
 bound to rebuild (^). Lord Ellenborougli, in the 
 same case, held that if a lease contain a covenant 
 to keep the premises in repair, and also a covenant 
 to insure against fire at a specific sum, the tenant's 
 liability on the former covenant, upon the premises 
 being burnt dov;n, is not limited to the amount of the 
 sum agreed to be insured. 
 
 It is a rule of great antiquity, that whatever has Fixtures, 
 been once affixed to the freeliold can never again be 
 severed, without the consent of the owner of the in- 
 heritance. Accordingly, the removing posts, doors, 
 windows, benches, wainscots, tables fixed in the 
 pavement, fixed shelves, groundsels, &c. was con- 
 sidered waste ; though annexed by the tenant for 
 his own accommodation. Modern times have, how- 
 ever, introduced several modifications of this rule. 
 
 (rt) Paradine v. Jane, Aleyn. 27. Earl of Chesterfield v. Duke 
 of Bolton, Com. Rep. G20. Bulloek v. Dominit, 6 T. 11. (350. 
 Brecknock Company v. Pritclmrd, ib. 750. 
 
 {h) Doc V. Laming, !■ Campl). 7.'5.
 
 152 
 
 INJUNCTIONS TO STAY WASTE. 
 
 What acts 
 arc deemed 
 
 tvasie. 
 
 Utensils set 
 up in rela- 
 tion to trade. 
 
 I The whole doctrine upon the subject was so well 
 stated by Lord Ellenborough in the case of Elwes v. 
 Maw (a), that nothing can be added to the substance 
 of tluit admirable judgment. 
 
 It appears from thence that questions respecting 
 the right, to what are ordinarily termed fixtures, 
 principally arise between three classes of persons : 
 1st, between heir and executor, in which case the 
 rule obtains with the greatest rigor in favour of the 
 inheritance and against the right to disannex (b) : 
 2dly, between the executor of tenant for life or in 
 tail and the remainder man or reversioner, where 
 the right to disannex is considered more favourably 
 for the executor, than in the preceding ; and, 3dly, 
 between landlord and tenant, where the rule has 
 been relaxed to the greatest extent. 
 
 The first exception which, after some struggles (c), 
 was made to the strictness of this rule, was in favour 
 of Trade, and utensils set up in relation to it. Lord 
 Holt accordingly held, that a soap-boiler might, 
 during his term remove vats, set up in relation to 
 his trade {d). Lord Hardwicke also twice determined, 
 that a fire engine erected by tenant for life to work 
 a colliery, should be considered as personalty, the 
 working of the colliery being not merely an enjoy- 
 ment of the estate, but in some measure the carrying 
 on of a trade (e). Lord C. B. Comyns also made a 
 
 (a) 3 East, 28. 
 
 (6) See also Lee v. Risdon, 7 Taunt. 188. 2 Marsh. 495. 
 
 (c) 42 E. 3. 6. 20 H. 7. 13. a. & b. 21 H. 7. 27. 
 
 (d) Poole's case, Salk. 368, ' 
 (<r) Lawton v. Lawton, 3 Atk. 13. Lord Dudley v. Lord Ward 
 
 Amb. 113.
 
 INJUNCTIONS TO STAY WASTE. 153 
 
 similar determination as to the right of a tenant to What acts 
 remove a cyder mill («), and the Court of King's ^aste. 
 
 Bench, in Pcnton v. Robart (Z>), as to a varnish 
 
 house. 
 
 Lord Kenyon had, in a case at nisi prius, ex- Buildings 
 tended the doctrine to buildino;s erected for the fo^thepur- 
 
 ~ ^ poses 01 
 
 purposes oi farming (c). This part of the subject farming. 
 
 received great consideration in Elwes v. Maw, where 
 the tenant had erected several out-houses at his own 
 expense, for the more necessary and convenient en- 
 joyment of his farm : the court held that he was not 
 intitled to remove them, though he left the premises 
 in the exact state in which he found them. 
 
 Lord Kenyon, in the above noticed case of Penton Gardeners 
 V, Robart, alluded to the instances of gardeners ^"^1,"^^^^^" 
 and nurserymen in the neighbourhood of the me- 
 tropolis, whom he considered as entitled to take up 
 the young trees and plants during the continuance 
 of theu' term. This, if it be so, must be from the 
 law implying an exception in favour of tenants of 
 this description, as carrying on a species of trade {d). 
 The position, however, seems doubtful, and it would 
 be advisable, that leases of property of this nature 
 should contain a covenant enabling the tenant, before 
 the expiration of his term, to remove young trees, 
 hot-house frames, &c. 
 
 The indulgence in favour of tenants for years, has Articles of 
 been still further extended to articles of ornament, oniament. 
 which have been put up by him, as marble chimney- 
 pieces, pier glasses, hangings, wainscots, if fixed 
 
 (a) Cit. ib. 
 
 {b) 2 East, 88. 
 
 (c) Dean u. AUaly, 3 Esp. N. P. C. 11. 
 
 {d) 3 East, 4-5.
 
 154 
 
 INJUNCTIONS TO STAY WASTE. 
 
 JVhal acts 
 are deemed 
 •waste. 
 
 Waste in 
 mines, &c. 
 
 only by screws, and the like {a). The removal of 
 the articles ought to be before the expiration of the 
 term (/>) ; but if the tenant is still in possession, he 
 may remove them though the term be expired (c). 
 
 If the tenant dig for gravel, lime, clay, brick- 
 earth, or slate, he commits waste ; and in general 
 digging in quarries for stone, or in mines of metal 
 or coal, if they are not open at the time of the de- 
 mise, is waste {d) ; and if the tenant open a mine and 
 assign his interest in it, it is still waste in the as- 
 signee to work it {e). But the tenant may dig and 
 take the profits of mines which were open at the 
 time of his lease (y) ; and where a person was tenant 
 for life under a settlement, it was considered to be 
 no objection to his working, that the mines were 
 not open at the time when the settlement was made, 
 they having been opened by a person who had a 
 previous estate tail under the settlement (^•). 
 
 If there be a demise of lands with the mines, although 
 this does not enable the lessee to open fresh mines if 
 there are already any mines that are open, yet if 
 there are no open mines, the lessee may open and 
 work ; as otherwise the grant would not take effect [h). 
 But if mines are merely inserted as general words, it 
 
 (fl) Beck V. Rebow, 1 P. W. 94. Ex-parte Quincey, 1 Atk. 477. 
 Lawton V. Lawton, sup. 
 
 {b) Poole's case, Salk. 368. Fitzherbeit v. Shaw, 1 H, B. 258. 
 
 (c) Penton v. Hobart, sup. Davis v. Jones, 2 B. & A. 167. 
 
 (c?) 2 Rol. Ab. 816. Co. Lit. 53. b. 
 
 {e) Sanders's case, 5 Co, 12. 
 
 (/) lb. Bac. Ab. Tit. Waste, 2. 
 
 {g) Clavering v. Clavering, 2 P. W, 389. Se!. Ca. Ch. 79. 
 Mose. 219. 
 
 {h) Sanderss case, sup.
 
 INJUNCTIONS TO STAY WASTE. 155 
 
 is Otherwise ; and accordingly where a settlement was What acts 
 
 ,>, n -I 11 . , 14-1 are deemed 
 
 made of lands and all mines, waters, trees, &c. both ^^,^^^^^ 
 
 Lord Macclesfield and Lord King were of opinion, 
 
 that the meaning of inserting these words was, that 
 the whole of the inheritance should pass, and ac- 
 cordingly restrained a tenant for life under the 
 settlement, from opening mines («). But though 
 tenant for life may not open new mines, yet in 
 working the old, he may open new pits and shafts in 
 pursuit of the vein of ore (b). 
 
 It is said that the tenant may take as much coal, May dig for 
 iron, and stone, as is necessary for his own use 
 without selling (c), and may dig for gravel or clay 
 for the reparation of the house, though the quarries 
 are not open (^). 
 
 Where the crown has only a bare reservation of Crown, with 
 royal mines, without any right of entry, it cannot ggrvation, 
 by prerogative grant a licence to dig up the soil cannot grant 
 and search for mines ; but if the mines are open, jig, 
 the crown can restrain the owner of the soil from 
 working them, and can either work them itself or 
 grant a licence to others to work them (/). And it 
 has been repeatedly laid down, with only a few 
 loose dicta to the contrary, that neither a custom- 
 ary tenant without the leave of the lord, nor the 
 
 (a) Whitfield v. Bewit, 2 P. W. 210. So if there is a demise of 
 land, including the trees, though there be no exception, yet the 
 law makes an exception, and the lessee cannot cut them down. 
 Post, 161. 
 
 (J)) Clavering v. Clavering, 2 P. W. 388. Sel. Ca. Ch. 79. 
 Hellier v, Twiford, cit. ib. 
 
 (c) Ro. Ab. 816. S. P. as to cutting turf, Lord Courtown v. 
 Ward, 1 Sch. & Lcf. 8. 
 
 (r/) Co. Lit. 53. b. 
 
 (c) Per Lord Hardwickc Lyddall v. Weston, 2 Atk. 20.
 
 of mines. 
 
 156 INJUNCTIONS TO STAY WASTE, 
 
 JVhat acts lord witliOLit liccnce from the tenant, can open and 
 tvaste.'^"^ work new mines, unless there is a custom which 
 
 sanctions it(r/), and accordingly an injunction was 
 
 granted by Lord Erskine and continued by Lord 
 Eldon, to restrain the lord of a manor, who was pre- 
 paring to open a mine and dig for coal upon the land 
 of a copyholder (Z>). 
 Court of A court of equity, considering the peculiar nature 
 
 equity un- o • • • i • i • t 
 
 willing to ^^ mniuig concerns, m which an immense expendi- 
 interfere to ture is required, to renew operations which have 
 
 restrain ^ 
 
 the working once ocen stopped, will rarely interpose by injunc- 
 tion, till the right has been established at law ; and 
 it will be particularly unwilling to lend its assistance, 
 where the defendant happens to be tenant for life 
 under a settlement, and if it does, will not continue 
 the injunction without securing the means of a 
 speedy trial (c). It will also refusp to interpose if 
 the plaintiff has been guilty of laches (d) : it fre- 
 quently happening, as observed by Lord Eldon, that 
 mining concerns remain for years in a hopeless 
 state, and afterwards, when a great expense has 
 been incurred, turn out extremely lucrative : per- 
 sons will therefore stand by and see the expendi- 
 ture incurred ; if it turns out profitable they will 
 set up their claim, if not, have nothing to do with 
 it(e). If such has been the conduct of the plaintiff 
 the court will, at all events, not interpose upon 
 
 (c) Lord Cowper has observed, that a custom empowering a 
 tenant to dispose of one sort of mineral may be evidence of their 
 right to another. 
 
 (6) Grey v. Duke of Northumberland, 13 Ves. 236. 17 Ves, 281. 
 
 (c) lb. 17 Ves. 281. 
 
 {d) Birmingham Canal Company v. Lloyd, IS Ves. 515. 
 
 (e) ly Ves. 159.
 
 INJUNCTIONS TO 3TAY WASTE. IS'f 
 
 motion, and will probably refuse to grant relief at JVkat acts 
 the hearing, as in a case before Lord Rosslyn, where ^^^ste^ ^ 
 
 the plaintiff and defendant having been partners in 
 
 a coal mine, under a lease with a right of renewal ; 
 a renewal had been obtained by the defendant, but 
 a bill was dismissed, on the ground that the plaintiff 
 having waited until the concern appeared, in con- 
 sequence of the property embarked in it by the de- 
 fendant, to be profitable, and having kept aloof 
 while it was hazardous, had thereby lost the equity 
 which he had by the renewal of his partner («). 
 
 Conduct of this nature is, however, no ground for Grant of 
 
 - . . mines not to 
 
 presuming a grant ot mines against an express re- be presumed 
 servation : as in a case mentioned by Lord Eldon, ^^°'" *'^^ 
 
 •' party not 
 
 where an estate had been sold two hundred years having 
 before, with a reservation of coal mines, which were ^ °^ ^ ' 
 at length brought to bank by the application of 
 machinery at an immense expense, by the person 
 in possession of the surface, who had forgotten the 
 reservation. The other party then came forward, 
 and upon the trial of an issue Mr. Justice Buller 
 directed the jury to presume a grant, from the cir- 
 cumstance of the proprietor having stood by during 
 the whole of the expenditure : this direction, how- 
 ever, was afterwards established to be erroneous {b). 
 
 {a) Senhouse v. Christian, cit. 19 Ves, 157. Vide also East 
 India Company v. Vincent, 2 Atk. 282. 
 (6) Adair v, Shaftoe, cit. 19 Ves. 156,
 
 158 
 
 Persons for 
 and against 
 xvhom In- 
 junction 
 ir ranted. 
 
 INJUNCTIONS TO STAY WASTK. 
 
 CHAPTER IX. 
 
 In xvhat Cases, and for and against what Persons, a 
 Court of Equity will interpose to restrain the Com- 
 mission of Waste, 
 
 Prohibition 
 and writ. 
 
 The proceedings at common law in Waste were 
 originally by prohibition out of Chancery, which 
 was the foundation of the suit : it was directed to 
 the sheriff, and if not obeyed, and an alias and pluries 
 produced no effect, a writ of attachment was issued 
 out of Chancery, returnable in a court of common 
 law, which was the original writ of the court [a). 
 By the statute of Westm. 2. this writ was taken 
 away, and the writ of summons substituted in its 
 place. Lord Chief Justice Eyre, in noticing Lord 
 Coke's assertion, when treating of prohibition at 
 common law, that it " may be used at this day,'' 
 observes, that these words, if true at all, can only 
 apply, to that very ineffectual writ directed to the 
 sheriff, empowering him to take the posse comitatus 
 to prevent the commission of waste intended to be 
 done (h). How far this remedy continued as ap- 
 plicable to Ecclesiastical persons will be noticed here- 
 after. This writ, being returnable in a court of 
 common law, the question was tried ; and if the de- 
 fendant was found guilty;, the plaintiff recovered single 
 
 (a) 1 B. & P. 121. 
 ih) Ibid.
 
 INJUNCTIONS TO STAY WASTE. 159 
 
 damages. The statute of Gloucester {a) directed Persons for 
 that the tenant should forfeit the place wasted, and ^l^m^jjl"^^ 
 also treble damages. junction 
 
 The action of waste has fallen so completely into 
 
 disuse, that the case of The Keepers, &c. of Harrow Action of 
 School V. Anderton (Z>) has been mentioned as the 
 only instance of it remembered by persons now 
 living ; an action on the case being generally sub- 
 stituted in its place : but as it has been determined 
 that an action on the case will not lie for permissive 
 waste (c), it may possibly still become necessary to 
 have recourse to the ancient mode of proceeding. 
 
 The common law had also another remedy for the Writ of Es- 
 injury of waste, of a preventive nature, in the writ of ^^''^'^''™^"'" 
 Estrepeme7it. This lay after a judgment obtained in 
 a real action, before possession delivered by the 
 sheriff, to prevent the defendant from committing 
 waste in the lands recovered. Another writ was 
 afterwards given by the statute of Gloucester to pre- 
 vent the defendant from committing waste during 
 the suity which was called the writ of estrepement 
 pendente placi to. 
 
 This method of obtaining preventive redress has Bill in 
 now, as well as the action of waste, fallen entirely ^*l"^*y- 
 into disuse ; and given way to a more easy, expe- 
 ditious, and complete mode of proceeding by Bill in 
 equity^ to stay waste either threatened, or which the 
 party is in the act of committing, and for an account 
 of such waste, as may have been already done. This 
 
 (a) 6 E. I.e. 5. 
 {b) 2 B. & P. 86. 
 
 (r) Gibson v. Wells, 1 N. P. 290. Heme v. Bembow, 4- Taunt. 
 764.
 
 IGO 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Personsjor 
 and against 
 'whom In- 
 junction 
 granted. 
 
 course of proceeding, while it is open to many per- 
 sons W'lio could not take advantage of these legal 
 remedies, at once unites the advantages of both, by 
 restraining, in the most expeditious manner, the 
 commission of future waste, and enforcing, by means 
 of the decree for an account, a compensation for 
 past. An injunction may be granted to restrain ^er- 
 missive as well as voluntary waste (a). 
 
 Tenant for 
 life, or for 
 years. 
 
 The most ordinary instance, of the interposition 
 of a court of equity, is, by injunction to restrain the 
 commission of waste by Tenant for life or for years, 
 upon the application of the owner of the inherit- 
 ance \h). 
 
 An estate for life is always impeachable for 
 waste, unless the contrary is provided by positive 
 limitation (c). Thus where a devise containing 
 \ precatory words was, by a decree of the Master 
 ^ of the Rolls (d/), declared (according to the well 
 known doctrine in Chapman's case (e') ) to consti- 
 tute the defendant tenant for life only in her own 
 right, and a trustee of the remainder in fee for the 
 
 (a) Caldwall v. Baylis, 2 Meriv. 408. 
 
 {h) There is an old case in Gary where a copyholder, dis- 
 punishable for waste, had made a lease for years, and the lessee 
 committed M-aste, and justified it on the ground of the copyholders 
 of that manor not being punishable : the court, however, granted 
 an injunction. Dalton v. Gill, Gary, 90. 
 
 (c) Cole V. Peyson, 1 Gh. Rep. 57. 
 
 {d) Wright t'. Atkyns, 17 Ves. 255 Afterwards affirmed on ^- 
 peal, 19 Ves. 299. Coop. 111. 
 
 (e) Dyer, 333.
 
 INJUNCTIONS TO STAY WASTE. 
 
 161 
 
 plaintiff: upon a motion to restrain her from cutting Persons for 
 timber, Lord Eldon, upon the ground that this ^^kamhi- 
 doctrine is generally a surprise upon the intention .p^nchon 
 
 ...... granted. 
 
 of the testator, endeavoured to raise a distuiction ui ". 
 
 favour of the devisee : he found, however, on con- 
 sideration, that the necessary consequence attached 
 to the estate which she took, and an injunction 
 was granted, though slie had appealed from the 
 decree (a). 
 
 A tenant for life or for years has no property in Has no pro- 
 
 . , . 1 pertv in the 
 
 tuuber trees, though he has a special interest and timber 
 property in the fruit and shade, as lonac as they are 'ilfliough de- 
 
 r I J » o ./ mised to 
 
 annexed to the land {h), but he cannot cut timber iiim, only an 
 even where there is a demise of a farm, including ^^^Q^Yuit^lml 
 the trees : for though there is no express exception, shade, 
 yet the law makes an exception of the trees, and the 
 lessee cannot cut them down, because he has but 
 a limited interest. It was once even holden, that 
 under a demise of a farm and divers closes, with all 
 timberw^ood, underwood, and hedge-rows thereunto 
 appertaining, except all great oaks growing in a 
 particular close, habendum the farm and closes wdth 
 their appurtenances to the lessee, he could not cut 
 down and sell the timber trees not e^vcepted (c). 
 
 A curious question arose in the case of Lady 
 Archer v. Lady Plymouth (d), upon a point con- 
 nected with this subject. Lands in Essex were 
 devised to trustees to be sold, and the money to 
 
 (a) 1 V. & B. 313. 
 
 (b) 4 Co. 62. 1 Roll. Rep. 181. Dy. 90. 
 
 (c) 2 Wils. Ch. Rep. 11, 12. citing Liford's case, 11 Kop. W. 
 Dy. 374.. b. pi. 18. Touchst. 95. 
 
 (rf) 1 Rro. C.C. 159.
 
 1(>^ INJUNCTIONS TO STAY WASTE, 
 
 Persons fur be laid out ill the purchase of lands in Warwick- 
 ii'honi^In- sliirc, wliich when pnrcliased were to be to the 
 junction ^iv^c of Lord Archer for life, without impeachment 
 
 granted. • i • i 
 
 or waste, with remainders over, and the 7^ents and 
 
 profits of the la7ids in Essex till sold, were to be to 
 the use of the same persons, who would be entitled to 
 the lands in Warxviclcshire when purchased. The 
 lands in Essex not being immediately sold, Lord 
 Archer cut timber upon them ; and afterwards upon 
 the question, whether he was entitled to do so. Sir 
 T. Sewell, and afterwards Lord Thurlow, on appeal, 
 were of opinion that he was not, and his executrix 
 was accordingly decreed to account, for the timber 
 which he had so cut. 
 Where A court of equity in considering the persons for 
 
 niaLdcr^for ^^^^ against whom it interferes to restrain waste, 
 ^'^t-'- has never professed to proceed, by any analogy to 
 
 the action at law («). There have accordingly been 
 precedents from the earliest times, in which, where 
 there was tenant for life or for years, with remainder 
 in fee or in tail with an intermediate estate for life, 
 and the tenant in possession was committing waste, 
 as the remainder man could not maintain an action 
 for waste, on account of the intermediate estate 
 for life, an injunction was granted at the applica- 
 tion of the remainder man (Z*). Lord Ellesmere 
 declared, that he had seen a precedent for this 
 as old as the time of Richard 11. (c). Upon this 
 principle Lord Hardwicke granted an injunction at 
 
 (a) 1 Dick. 208. 3 Atk. 210. 
 
 (/;) Gary, 26—36. Roswell's case, 1 Roll. Ab. 377. pi. 13. 
 Tracy v. Tracy, 1 Vern. 23. Robinson v. Litton, 3 Atk. 210. 
 (c) Mo. 55k
 
 INJUNCTIONS TO STAY WASTE. lC)3 
 
 the suit of a ground landlord, to stay waste in an Persons/or 
 under lessee, observing that a remainder man m lee ■n-hom In- 
 mif^ht always have an injunction to stay waste in the JK^tction 
 
 ^ J J '' granted. 
 
 first tenant for life, notwithstanding an intermediate 
 
 estate (a). 
 
 An injunction will also be granted upon the ap- Injunction 
 plication of the mesne remainder man for lifey as well granted on 
 as upon that of the remainder man in fee (h), for application 
 
 or mesne re- 
 
 though he has no right to the timber, yet it the first mainder 
 tenant for life should die, he would have an interest ^7^"* 
 in the mast and shade (c). Lord King is reported, 
 in the case of Mollineux v. Powell, to have con- 
 sidered it necessary, upon such an application, that 
 the reversioner or remainder man in fee, should 
 be made a party. This, however, is a mistake ; 
 as appears both from Lord Hardwicke's observa- 
 tions in Garth v. Cotton {d), upon the case of 
 Dayrell v. Champneys, and from the account in the 
 register's book of the case of Pcrrot v. Perrot (<?). 
 The reason also attributed to Lord King, viz. that 
 the remainder man might possibly approve of it, is 
 utterly untenable ; for if he were to permit the tenant 
 for life to cut down timber, there are numerous cases 
 which show, that it would be considered a case of 
 collusion between them ; and they would not only 
 be enjoined by any one having a mesne remainder, 
 
 (a) Farrant v. Lovcl, Amb. 105. 3 Atk. 723. 
 
 {b) Dayrell v. Champneys, 1 Eq. Ab. 400. Mollineux v. Powell, 
 3 P. W. 268. n. Perrot v. Perrot, 3 Atk. 94. Davies v. Leo, 
 6 Ves, 787. 
 
 (c) 3 Atk. 95. 
 
 (d) 1 Dick. 197, 198, 
 
 (e) Reg. Lib. B. 174-3. fol. 432, 
 
 M 2
 
 16 h 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Persons for 
 mid against 
 ivhoni In- 
 junction 
 irranlcd. 
 
 Tenant for 
 life having 
 sold the 
 timber, 
 cannot I'e- 
 s train 
 vendee. 
 
 Jointress and 
 tenant by 
 curtesy. 
 
 but tlic produce would be directed to be laid up for 
 the benefit of intermediate and contingent remainder 
 men : it is, besides, expressly laid down that the 
 right of the mesne remainder man for life to inter- 
 pose, is founded, not so much upon his iiiterest as 
 his enjoyment, which is personal to himself, and 
 in which the remainder man in fee has no partici- 
 pation («). But he would not be entitled to an 
 account, which can only be called for by the owner 
 of the inheritance (h). 
 
 If tenant for life impeachable for waste has sold 
 the growing timber, he would not be entitled to re- 
 strain the vendee from cutting it (c) ; accordingly, 
 where a tenant for life had made a lease of coal 
 mines which amounted to a forfeiture, and then 
 joined in a bill with the remainder man in fee, to 
 restrain the lessor from taking coal. Lord Rosslyn 
 refused an injunction (c?). 
 
 A jointress (^) and Tenant by curtesy {f) are fre- 
 quently restrained from committing waste. There 
 is a case, however, in which it was determined, that 
 if a jointress have a covenant that her estate shall be 
 of a yearly value, and it falls short, the court, even 
 though her estate w^ere not limited without impeach- 
 ment of waste, will not prohibit her from committing 
 waste, to such an amount, as to make up the defect 
 
 (a) 2 Atk. 95. 6 Ves. 787. 
 
 {b) Pigott r. Bullock, 3 Bro. C. C. 538. 1 Ves. jun. 479. 
 (c) 3 Ves. 3. 
 
 {d) Wentworth v. Turner, 3 Ves. 3. 
 
 {e) Tresham v. Gerrard, Toth. 14'4. Packer v. Newell, ib. 
 Basset t'. Basset, Finch. 189. 
 
 (/) Roberts v. Roberts, Hard. 96.
 
 INJUNCTIONS TO STAY WASTE. 165 
 
 of her jointure («). The reporter adds a quaere, Pcrmmfor 
 whether if an action of waste were brought against jJ,o,„°/n. 
 her, the Court of Chancery would enjoin? l^\\e junction 
 
 . Ill granted. 
 
 correctness of this determination is extremely doubt- 
 
 ful ; but the point has not since come under con- 
 sideration : the following dictaj however, upon a 
 subject in some measure connected with it, seem to | 
 countenance the doctrine. 
 
 It was observed by Lord Hardwicke, in the case ^Mortgagee 
 of Farrant v. Lovel (b), that a Mort":a^ee in pos- "? posses- 
 session will be restrained from cutting down timber. 
 It is to be inferred, however, from his observations, 
 that if the mortgagee, applied the money, arising by 
 sale of the timber, in sinking the interest and principal 
 of the mortgage, the court would not grant the in- 
 junction. In a case which Lord Hardwicke probably 
 had in his recollection, Mr. Baron Price, who was 
 sitting for the Lord Chancellor, restrained a mort- 
 gagee from cutting down timber, observing that 
 a morto^ajxee in fee mi^'ht commit waste at law, 
 but never in equity, unless the security was de- 
 fective (c). 
 
 As a court of equity has never yet been called 
 upon to refuse an injunction to restrain a mort- 
 gagee from committing waste, either on the ground 
 that he was applying it to the sinking the principal 
 of his mortgage, or upon the allegation, that the 
 security was defective ; we may without presump- 
 tion, express our doubt whether these dicta would 
 
 (a) Carew v. Carew, I Eq. Ab. 221. 4.00. 11- Vin. Ab. 557. 
 (6) Cit. sup. 
 
 (f) WiUicriii-nun v. Banks Scl. Ca. Cb. .W.
 
 166 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Persons for 
 and against 
 tvhom In- 
 juuction 
 granted. 
 
 Mortgagor 
 in posses- 
 sion. 
 
 Mortgagor 
 in possession 
 may cut 
 underwood. 
 
 now be followed. And considering the jealousy 
 with which a court of equity watches all transactions 
 between mortgagor and mortgagee, it is hardly to 
 be supposed, that in the former case, he would be 
 allowed to pay himself his debt out of the pledge, in 
 what manner and at what time he might choose : or 
 that in the other he could make himself, to that ex- 
 tent, owner of the estate, in equity as well as at law, 
 witliout the process of a foreclosure. 
 
 Where a Mortgagor in possession is committing 
 waste, a court of equity will restrain him, for as the 
 whole estate is the security for the money advanced, 
 the mortgagor ought not to be suffered to diminish 
 it. In one case («), indeed, Lord Thurlow seemed 
 to doubt this doctrine, as thinking it the fault of the 
 mortgagee, in permitting the mortgagor to continue 
 in possession. It is, however, settled by numerous 
 decisions (Z>). 
 
 But the mortgagor may cut underwood at season- 
 able times, and of a proper growth ; and therefore 
 Lord Eldon, upon a motion by a mortgagee of an 
 estate, upon which there were timber trees, wood, 
 and underw ood, to restrain the mortgagor from cut- 
 ting the underwood, observed, that if the mortgagee 
 will not take possession, the mortgagor must cut the 
 underwood in the ordinary course : that if he did so 
 at unseasonable times, or wdien it was of an improper 
 growth, he would grant an injunction to restrain 
 
 (a) Gross v. Chilton, cit. 1 Dick. 76. 
 
 (J) LordBlaneyu.Mahon, 22 Vin. Ab.521. Robinson u. Litton, 
 3 Atk. 210. Farrant v. Lovel, ib. 723. Usborne v. Usborne, 
 1 Dick. 75. Hopkins v. Monk, cit. ib. Uvedale v. Uvedale, ib. 
 Pitman v. Hodges, 2 Fowl. Ex. Pr. 241.
 
 INJUNCTIONS TO STAY WASTE. I67 
 
 the cutting, except in a luisband-like manner at the Persona for 
 usual seasons and growth ; but that tliere never was ji,/^^,,,',''/^. 
 an instance, of preventing the mortgagor, from taking junction 
 
 the ordinary fruit of the land. And though it was 1 '_ , 
 
 contended that the money was lent upon the credit 
 not of the land merely, but of the woodland, and 
 that the underwood was expressly conveyed; yet 
 his Lordship said, that nothing more was meant by 
 inserting the underwood, than to take every thing 
 into the security. As the mortgagor, however, had 
 become a bankrupt, an injunction was granted, upon 
 the ground that the mortgagee had a right to have 
 the estate sold, in the plight in which it was, at the 
 time of the bankruptcy (a). 
 
 The powers and duties of Trustees to preserve Trustees to 
 contingent remainders, were admirably explained by comhi^rent 
 Lord Hardwicke in his celebrated judgment in Garth remainders. 
 t\ Cotton (Z>), and particularly as applicable, to their 
 right to interpose for the prevention of waste,, be- 
 fore the contingent remainder man comes in esse. 
 It had been objected, in the argument, that this 
 power related only to the preservation of the legal 
 estate of the use, and not to the timber or mines, 
 because the estate of the trustees could not support 
 an action of waste. This, his Lordship said, might 
 be in many instances to preserve the shell without 
 the kernel ; that such trustees having the whole 
 legal estate, might and ought to preserve the entire 
 
 (fl) Hampton v. Hodges^ 8 Ves. 105. 
 
 {b) 1 Dick. 183. Though this case is reported both in Atkins 
 and Vesey, the author, whenever lie has had occasion to notice it, 
 has referred to the report in Dickens, where, as it is well known, 
 the judgment is printed from Lord Hardwicke's Mb'.
 
 168 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Persons for 
 and (i<^(tiiist 
 iv/t07)i. In- 
 junction 
 frranted. 
 
 Persons in 
 the same 
 situation as 
 trustees to 
 preserve, &c. 
 
 inheritance, for the benefit of all the cestmjs que trust 
 ill remainder, whether vested or contingent ; that 
 tlie inlicritance consisted of the land, mines, and 
 timber, and coidd not be preserved, without pre- 
 serving all three ; that in many estates the timber was 
 the most valuable part, in more the mines ; and the 
 destruction of the one, or the exhausting the other, 
 might be an alienation of the best part of the inherit- 
 ance. He said that tlie trustees were entitled to 
 all remedies both in law and equity ; that if, after a 
 forfeiture committed, and an entry made for that 
 forfeiture, such trustees wanted any assistance of a 
 court of equity in support of their trust, they might 
 by force of this trust, have such remedy. Upon the 
 whole, though no precedent in point had been pro- 
 duced for it, he was clearly of opinion, that they 
 might bring a bill for an injunction to stay waste. 
 This doctrine has also been approved of by Lord 
 Eldon («) ; and in a late case, where a bill for an in- 
 junction against a tenant for life committing waste 
 was filed by trustees to preserve contingent re- 
 mainders: no demurrer was put in, an injunction 
 w^as obtained, and their competency to sustain the 
 suit not disputed [b). 
 
 These arguments and decisions, apply to several 
 persons standing in the same situation, or at least 
 clothed with the same powers, as trustees to pre- 
 serve contingent remainders. In limitations of copy- 
 holds of inheritance (c), for instance, the estate to 
 
 (a) Stansfield ». Habergham, 10 Ves. 273. 
 (6) Wilmot V. Lord Lansdowne, cit. 2 Mad. Rep. 137. 
 (c) These observations are only apphcable to those copyholds 
 Mhere the tenant has a riirht to cut timber.
 
 INJUNCTIONS TO STAY WASTE. iGQ 
 
 trustees to preserve contingent remainders is fre- Persons for 
 quently omitted, it being well known that the estate "Xj,J^^/„1* 
 of freehold in the lord, if not sufficient for si\\Ji"ictions 
 
 crranted, 
 
 purposes («), is so at least, as against the tortious 
 
 destruction of the contingent remainders, by the per- 
 son having the particular estate (h). It has also \ 
 been settled, that a dormant surrenderee of a copy- 
 hold (that is, a person to whom a surrender is 
 made, on condition to perform the will of the sur- 
 renderor), has an estate sufficient to support the 
 contingent remainders of the surrenderor's will, 
 without the interposition of trustees for the pur- 
 pose (c). Again, where the whole legal estate in 
 fee is vested in trustees, it has been established that 
 there is no necessity for any preceding estate of 
 freehold, that legal estate being sufficient to support 
 the contingent limitations [d) : it may therefore be 
 considered as established, that these persons are 
 competent, to sustain a suit for an injunction to stay 
 waste. With respect to copyholds, however, it would 
 be advisable, both in wills and settlements, to insert 
 a limitation to trustees to preserve contingent re- 
 mainders ; as however competent the estate of the 
 lord, or dormant surrenderee, may be to preserve 
 contingent remainders, it does not follow that it 
 would be as clearly the duty of those persons, as it 
 
 (a) Mildmay v. Hungerford, 2 Vern. 21-3. Lovell v. Lovell, 
 3 Atk. 12. Doe v. Martin, 4 T. R. 64. 
 
 {b) Lane v. Pannell, 1 Roll. Rep. 238. Gilb. on Ten. 265. 
 Frogmorton v. Wharrey, 2 Bl. Rep. 728. 3 Wils. 125. U*. Ila- 
 bergham v. Vincent, 4- Bro. C. C. 353. 2 Ves. jun. 20-i. 
 
 (c) Gale V. Gale, 2 Cox, 136. 
 
 (rf) Fearnc, C. R. 303. ct scq.
 
 170 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Persons for 
 and figainst 
 ivhom In- 
 junctions 
 granted. 
 
 Purchaser in 
 possession 
 before pay- 
 ment of pur- 
 chase 
 money. 
 
 Injunction 
 in case of 
 executory 
 devise. 
 
 is, of trustees appointed to preserve contingent re- 
 mainders of freehold estates, to interpose actively 
 to prevent waste {ci). 
 
 An injunction will also be granted to restrain a 
 purchaser, who has obtained possession before pay- 
 ment of the purchase money, from cutting timber (Z'). 
 This case will be more properly noticed hereafter 
 under the head of trespass. 
 
 Lord Hardwicke, in Robinson v. Litton (c), ex- 
 pressed an opinion that in the case of an executory 
 devise, the heir at law ought to be restrained from 
 committing waste, until the contingency took place 
 upon which the devised estate was to vest. In that 
 case, the testator devised to his son (c?) and his 
 heirs; but if he should not attain twenty-one, and 
 die without issue, then he gave the lands to his 
 daughters, and directed they should be sold, and the 
 money divided among them. The son, who wanted 
 three quarters of a year of twenty-one, was restrained 
 from cutting down timbei', and that injunction made 
 perpetual [e). 
 
 Lord Eldon also, in the case of Stansfield v. Ha- 
 bergham {f), stated it to be the known doctrine of 
 the court, that where there is an executory devise 
 over, even of a legal estate, the court will not permit 
 the timber to be cut down ; more especially not, if 
 an executory devise of a trust estate. In that case, 
 
 (a) 10 Ves. 282. 
 
 {b) Crockford v. Alexander, 15 Ves. 138. 
 
 (c) 3 Atk. 209. S. C. 8 Vin. Ab. 475. 
 
 (fi?) His eldest son. 10 Ves. 282. n, 
 
 (e) So stated by Lord Hardwicke, 1 Dick. 210. 
 
 (/) 10 Ves. 273.
 
 INJUNCTIONS TO STAY WASTE. 171 
 
 indeed, it did not become necessary to establish the Persons for 
 general doctrine by decision, as the testator had ^^Q^nln- 
 directed a conveyance to be made, which would have junctions 
 
 been of such a nature, that the heir would have been 
 
 tenant ^z/?' autre vie, and the court must have inserted 
 a limitation to trustees to preserve contingent re- 
 mainders, after the limitation to him. An injunction 
 was therefore on that ground continued, to restrain 
 him from cutting timber. 
 
 The above case of R-obinson v. Litton, contains Infant in 
 
 ventre 
 mere. 
 
 an observation of Lord Hardwicke, which has been 
 
 frequently cited, that " though the point had never 
 
 been determined, he should have no scruple to grant 
 
 an injunction in favour of a child in ventre sa mere." 
 
 There are other dicta, both by himself (r/) and Lord 
 
 Somers (/;), to the same effect ; and it seems, though 
 
 Lord Hardwicke was not aware of the circumstance, 
 
 that an injunction had been actually granted by 
 
 Lord Keeper Bridgman, to an infant in ventre sa 
 
 mere, to stay waste (c). 
 
 Applications between Coparceners, Joint-tenants, Copar- 
 n rr« - • c • ' I.- • i. ceners, joint 
 
 and ienants m common lor injunctions against com- t^j^ants and 
 
 mitting what would be considered waste between tenants in 
 11111 n All! common, 
 
 landlord and tenant, are not rrequent. And though 
 
 the commission of waste in these cases must often 
 
 occur, as a person in that relation is more likely to 
 
 take that liberty than a common tenant : yet the 
 
 instances in which this application has been made Where re- 
 
 are few j and in those it has always, unless attended ^^'^'^ ' 
 
 (a) Barnard, Ch. Rep. 275. 
 
 (6) Free. Can. 50. 
 
 (c) Luttcrcl's case, cit. Free. Can. ,50.
 
 172 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Persons for with peculiar circumstances, been refused {a). The 
 
 Z'hom^In-^ principle, as observed by Lord Eldon, would lead to 
 
 junctions the most inconvenient results : if the court were to 
 
 ^ interfere on the ground of waste, it must apply that 
 
 principle throughout, and grant the whole equitable 
 
 relief, as for instance, to prevent the felling trees 
 
 planted for ornament (h). 
 
 Lord King expressed himself dissatisfied with a 
 case (c) before Lord Cowper, in w^hicli the Earl of 
 Chesterfield being entitled to one fourth of an estate, 
 and Mr. Viner to three-fourths, the latter wished to 
 cut some timber. Lord Cowper granted an injunc- 
 tion, and referred it to a Master to see what timber 
 was fit to be cut dow^n, and to make sale thereof, 
 and the money to be paid to the parties according 
 to their interests. Lord King, in the case before 
 him, refused an injunction under the following cir- 
 cumstances : one coparcener joined with her hus- 
 band and sister in a letter of attorney to sell timber, 
 which was sold accordingly; the husband dying, the 
 wife brought a bill to restrain the purchaser and her 
 sister from cutting down the timber ; his Lordship, 
 however, said, that since the other sister had a power 
 by law to cut down the timber, he did not know 
 how he could restrain her ; but the plaintiff ought 
 to make a partition (^d). 
 
 The few exceptions which have been made to this 
 rule are the following. In the case of Smallman v. 
 
 Where 
 granted. 
 
 (a) 16 Ves. 131. Goodwyn x\ Spray, 2 Dick. 667. 
 {b) 16 Ves. 132. 
 
 (c) Earl of Chesterfield v. Viner, cit. Mose. 305. 
 (rf) Pyat V. Winfield, INIosc. 305.
 
 INJUNCTIONS TO STAY WASTE. 173 
 
 Onions (a), Lord Thurlow granted an injunction upon Persons for 
 affidavit, that the defendant was insolvent, and unable ""/ig"fj„. 
 to pay the plaintiffs their sliare of the money to be jund'wna 
 
 produced by the sale of the timber. On the ground ^ J 
 
 of destruction^ in Hole v. Thomas (Z>), Lord Eldon 
 granted an injunction against cutting saplings, and 
 timber trees, and underwood, at unseasonable times : 
 this not being the legitimate exercise of the enjoy- 
 ment arising out of the nature of the party's title. 
 Lord Redesdale also mentions a case where the 
 court interfered between coparceners on the same 
 ground (c). In another case, one tenant in com- 
 mon was occupying tenant to the other ; Lord Eldon 
 considered, that the effect of that contract being 
 to exclude the other from entry for any purpose, 
 the tenant had thereby prohibited any act by him- 
 self, but such as an occupying tenant might do ; the 
 result of which obligation was, that he could not 
 deal with his own moiety as he otherwise might; 
 and accordingly an injunction was granted to re- 
 strain him from committing waste, upon those pre- 
 mises which he held, as occupying tenant (r/). 
 
 It was observed in a recent case, that upon the Tenant ia 
 
 tail, 
 construction which had been given to the statute 
 
 de donis, a tenant in tail remained with the same 
 unqualified and absolute ownership of the estate 
 which he had before, with the exception of restraint 
 upon alienation ; tenant in tail is at this day con- 
 sidered as much the owner of the estate as a tenant 
 
 (a) 3 Bro. C. C. 621. 
 
 (J) Y Ves. 589. 
 
 (c) Beaumont v. Sharp, May 9, 1751, Redes. Tr. 113. 
 
 id) Twort V. Twort, 16 Vcs, 128.
 
 174. 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Persons for 
 and against 
 ivliom In- 
 junctions 
 iXranted. 
 
 Tenant 
 under lease 
 renewable 
 for ever. 
 
 in fee-simple, and as such may do what he pleases 
 with the buildings and timber on the estate («). 
 Accordingly a gift in tail, on condition that the 
 donee shall not commit waste, has in all times been 
 considered as repugnant and void {b) ; and the right 
 to be dispunishable for waste, extends not only to the 
 grantee of tenant in tail, but also to the grantee of 
 such grantee (c). 
 
 There is a case which has frequently been cited 
 to show, that this doctrine has been adopted to its 
 fullest extent in equity. A guardian by nurture 
 cut down timber to the value of 7OOO/. or 8000/. 
 upon the estate of an infant tenant in tail who lay 
 dying: Lord King refused an injunction, because 
 the guardian had a right, to make what advantage 
 she could, of the estate for the infant. After his 
 death, a bill by the remainder man for an account 
 against his assets was dismissed, because it was said 
 the tenant in tail had a power over the inheritance, 
 and the guardian might exercise that power in any 
 manner she thought proper (d). 
 
 The well known tenure so general in Ireland, by 
 lease renewable for ever, is, in that country, con- 
 sidered so much in the nature of a perpetuity, that 
 Lord Redesdale refused an application for an in- 
 junction to restrain a tenant from cutting timber. 
 His Lordship considered that the whole inheritance 
 w^as bound by the contract for renew^al, and that 
 without a special contract, the lessee had no interest 
 
 (a) 3 :Mad. Rep. 532. 
 
 (Jb) Mildmay's case, 6 Co. 41. a. Co. Lit. 27. b. 
 
 (c) 7 Bac. Ab. 260. 
 
 (d) Savilles case, Mose. 224. For. 16.
 
 INJUNCTIONS TO STAY WASTE. 17^ 
 
 beyond the performance of the conditions of the Persona for 
 tenure {ci). This determination proceeded entirely -u^hamin- 
 upon the peculiar local nature of that tenure, and junctions 
 
 would probably not be found applicable to the case ^ 
 
 of a tenant holding under a lease, with covenants 
 for perpetual renewal in England, where this species 
 of covenant, though neither unusual nor illegal, is, 
 nevertheless, regarded by the courts with great 
 jealousy (^). 
 
 It was observed by Lord Nottingham (c), and he Tenant for 
 has been followed in that opinion by Lord Hard- imneach- 
 wicke (^), that at common law% the clause " without "'^"'^ "* 
 impeachment of waste," only exempted tenant for 
 life from the penalty of the statute, and did not give 
 him the property of the thing wasted ; and those 
 learned persons considered Lewis Bowles's case, as 
 having first decided, that these words also gave the 
 property. This opinion must have been founded 
 upon the extrajudicial determination of Wray, C. J. 
 and Manwood, C. 13. in a case of Finch r. Finch, 
 which is cited in Herlakenden's case (e), and upon 
 a passage in Statham's Abridgment, ^7 H. G. Lord 
 Coke has, however, clearly shown that this doctrine 
 
 (a) Calvert t;. Gason, 2 Sch. & Lef. 561. 
 
 (b) Hyde v. Skynner, 2 P. W. 196. Redshaw v. Bedford Level 
 Company, 1 Eden, 349. Lee v. Lord Vernon, 5 Bro. C. C. Ed, 
 Tonil. 10. Tritton v. Foote, 2 Bro, C. C. 636. 2 Cox, 171. Bayn- 
 ham t). Guy's Hospital, 3 Ves. 295, Eaton v. Lyon, ib. 691. 
 Moore u. Foley, 6 Ves. 232. Iggulden v. May, 9 Ves. 325. 7 East, 
 237. 2 N. R. 449. City of London v. Mitford, 14 Ves. 50. Willan 
 V. Willan, 16 Ves. 72. 
 
 (c) 2 Freem. 53. 
 (rf) 1 Ves. 265. 
 {e) 4 Co. 62.
 
 lyG INJUNCTIONS TO STAY WASTE. 
 
 Persons for was eiToncoLis ; and it appears from the numerous 
 
 nyid against ,, .,. -.ii i- -t -t* i' /■ \ 
 
 xvhom In- autliorities Cited by nun in Lewis liowles s case («}, 
 junctions that " the constant opinion of all ages'* was, that 
 
 granted. ' 
 
 these words gave power to the lessee to do waste, 
 
 which produced an interest in him, if he executed 
 liis power during the continuance of his estate. 
 Lord Coke has also shown that the clause was in 
 use at the time of the statute of Marlbridge, and 
 that the effect of it was not only to allow the tenant 
 to commit waste, but also to dispose of the timber 
 to his own use (Z»). 
 
 The necessary consequence of this doctrine was, 
 that tenant for life without impeachment of waste, 
 should not be restrained in equity : for that would 
 have been to determine, that he should not enjoy 
 the property, which the law gave him (c). And it 
 was decided, that his assignee has the same rights : 
 accordingly, where tenant for life without impeach- 
 ment of waste, had become a bankrupt, and the 
 commissioners had sold his estate to the defendant, 
 
 (a) 11 Co. 79. 
 
 {b) In the other report of Lewis Bowles's case, which is in 
 Roll, by the name of Bowles v. Berrie, 1 Roll. Rep. 183. we find 
 this doctrine treated with the pedantic subtlety peculiar to the age: 
 the whole court agreed, that whether the trees were thrown down 
 by tempest, or the act of the lessee, he was entitled to them ; and 
 two of the judges (Houghton and Dodderidge) held, that the 
 words withoid impeachment ofx^aste, gave aproperty in the trees ; but 
 the other two judges (Coke, C.J. and Croke) said, that those words 
 did not give a property in the trees, but only an interest and ^otoer 
 in the lessee to take them ; and when he had taken them, that he 
 should not be impeached in any action or reprisal, but should have 
 them for his own use ! 
 
 (c) Minshul v. Minshul, 1 Ch. Rep. 128. 1 Vcrn. 23. 1 Eq. 
 Ab. 399. 1 Yes. 266.
 
 INJUNCTIONS TO STAY WASTE. 177 
 
 the court dissolved an injunction which had been Per sons for 
 obtained to restrain him from cutting timber ge- ^^./lo^ jti- 
 nerally (a), junctions 
 
 •^ ^ granted. 
 
 It was, however, soon found how much this ex- 
 
 tensive power might be abused to the prejudice of Eciuitable 
 the inheritance; and accordingly when tenant for 
 life, unimpeachable of waste, was making an uncon- 
 scientious use of that power, courts of equity assumed 
 the jurisdiction of restraining and modelling it. 
 
 The case which is frequently referred to, as being 
 the leading decision upon this point, is well known by 
 the name of Lord Barnard's case. It is, however, far 
 from being the earliest decision upon the subject, as it 
 appears to have been a well known branch of equita- 
 ble jurisdiction in the time of Lord Nottingham. In 
 the above noticed case of Abraham or Abrahall r'. 
 Bubb (Z>), we find that great judge treating it as a 
 settled point, that if tenant for life does waste " 7ua- 
 Uciousl^y** a court of equity would restrain him, 
 though he had express power to commit waste : and 
 he atlded, that he never knew an injunction in this 
 respect denied, unless it were to Serjeant Peck in 
 Lord Oxford's case, and he believed he never should 
 see this court deny it again. He also cited the Bishop 
 of Winchester's case, and Lady Evelyn's case, as 
 instances in his recollection, in which the court 
 had so interposed. In the former, the Bishop liad 
 made a lease for twenty-one years, without impeach- 
 ment of waste, of land that had many trees upon it : 
 the tenant cut down none of the trees till about half 
 
 (c) Anon. Mose. 237- 
 
 (5) 2 Eq. Ab. 757. 2 Frcem. 53. 2 Show. GO. 
 
 N
 
 178 INJUNCTIONS TO STAY WASTE. 
 
 Persons for a year before the expiration of the term, yet then 
 
 and afrainst . n n -i i ••it i 
 
 u/iomin- g^i'ig to icU the trees, he was enjoined. In several 
 junctions other cases about the same period, the court declared 
 
 granted. 
 
 that it would restrain both tenant for life without 
 
 impeachment of waste, and tenant in tail after possi- 
 bility of issue extinct, from committing " wilful," 
 " destructive," *' malicious," *' extravagant," or 
 " humorous" waste («). 
 Destruction. These determinations led to the remarkable case 
 of Vane v. Lord Barnard (Z*), which certainly strongly 
 demanded the application of the doctrine, being an 
 instance of the most extravagant, wilful, malicious, 
 and destructive waste, that can be imagined. Lord 
 Barnard, who was tenant for life, without impeach- 
 ment of waste, of Raby castle, under the marriage 
 settlement of his son (c), in consequence of some 
 displeasure which he had conceived against him, got , 
 two hundred workmen together, and stripped the 
 castle of the lead, iron, glass, doors, boards, &c. to the 
 value of 3000/., and was proceeding to pull it down : 
 Lord Cowper, without any hesitation, granted an 
 injunction ; and a commission was directed to in- 
 quire into the amount of the damage, and a Master 
 was directed to see it done at the expense of the 
 defendant (c?). 
 
 (a) Williams v. Day, 2 Ch. Ca. 32. Cooke v. Whaley, 1 Eq. 
 Ab. 400. Anon. 1 Freem. 273. 
 
 {b) The case is reported in several books, and most correctly 
 in the first. Prec. Can. 454'. Gilb. Eq. Rep. 127. 1 Eq. Ab. 399. 
 1 Salk. 161. 2Vern. 738. 
 
 (c) Gilbert's report of this case, by a strange blunder, repre- 
 sents him to have been tenant by the curtesy. 
 
 (d) Lord Barnard having died before he had perfected the
 
 INJUNCTIONS TO STAY WASTE. 179 
 
 The ground, however, upon which this doctrine Persons for 
 was as yet founded, was said to be the destruction leAom^/n- 
 to the inheritance ; and upon this principle, and in junctions 
 
 TT 1 • 1 granted. 
 
 extension of this rational doctrine. Lord Hardwicke 
 
 said, that if tenant for life, without impeachment of 
 waste, were to pull down farm-houses, he would 
 restrain him, as much as if it were the case of the 
 mansion-house, or if he were grubbing up the whole 
 of a wood («). 
 
 Analogous to this also, was the interference of a Timber of 
 court of equity to restrain tenant for life, without JJ.o^vah. 
 impeachment, from cutting down timber of too young 
 a growth. Lord Hardwicke, indeed, once expressed 
 some disapprobation of the doctrine, as being dif- 
 ficult to carry into effect ; and seemed to think that 
 it was hardly warranted upon principle, as it did not 
 tend to the destruction of the thing settled ; and in 
 Sir Herbert Packington*s case(^), where part of 
 the order was to restrain the tenant from cutting 
 trees not of a proper growth, he felt some doubt, 
 and afterwai'ds omitted it. There were, however, 
 at that time numerous cases, in which the court had 
 interfered to restrain tenant without impeachment 
 from cutting saplings or extremely young trees (c). 
 
 decree, there were directions for an issue at law to charge his 
 assets with the value of the damage. 
 
 (a) 1 Ves. 265. There is a most extraordinary doctrine attri- 
 buted to Lord Mansfield (l Bl. Rep. 337.) that if the waste he a 
 species of destruction, not within the meaning of the grantor, a 
 remedy would lie at law against tenant for life sans waste. 
 
 (h) 3 Atk. 216. 
 
 (c) Lord Castlemain v. Lord Craven, 2 Eq. Ab. 758. 22 Vin. 
 Ab. 528. O'Brien v. O'Brien, Amb. 107. 
 
 N 2
 
 180 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Kliom In 
 
 junctions 
 
 "ranted. 
 
 Trees 
 planted for 
 ornament. 
 
 Personsfor The Subject was afterwards much discussed in two 
 cases before Lord Thurlow («), where the doctrine 
 was satisfactorily established. 
 
 We have next to consider another branch of this 
 doctrine, neither so well founded nor so salutary as 
 the former, viz. the restraining the cutting down 
 trees 'planted for ornament. At first, where the act 
 complained of did not amount to destruction^ the court 
 refused to interfere. Thus in the anonymous cases in 
 Freeman above referred to, the defendant, though 
 restrained from cutting down trees planted for the 
 shelter of the house, and fruit-trees growing in the 
 garden, was not prevented from cutting down some 
 turrets of trees which grew a lands length from the 
 house under the idea of ornament ; and even Lord 
 Hardwicke once declared, that if a son should have 
 it in his power to call his father into a court of 
 equity for any alterations in a walk or an avenue, it 
 would be such a fund for disputes between father 
 and son, that it had been better for the public, that 
 Raby Castle had been pulled down, than that the 
 precedent had been made (Jb). 
 
 One of the first cases we find upon this doctrine 
 is that of Charlton v, Charlton (c), before Lord 
 King, where an injunction, granted by the Master 
 of the Rolls, was continued as to trees for ornament 
 or shelter, but dissolved as to straggling trees. In 
 Packington's case above noticed, Lord Hardwicke, 
 upon its being objected that the trees in question 
 
 (c) Chamberlayne u. Dummer, 1 Bro, C. C. 166. 3 ib. 548. 
 Lady Strathmore d. Bowes, 2 Bro. C. C. 88. 
 {b) 1 Ves. 521. 
 (c) Cit. 3 Atk. 213.
 
 INJUNCTIONS TO STAY WASTE. 181 
 
 had arisen naturally and by accident, and not from Persons for 
 planting, said, that whether they grew natural or "^^Inir^In- 
 
 were planted, if they served as an ornament, it was junctions 
 
 . granted. 
 the same thing. That injunction, however, only com- 
 
 prised trees in lines or avenues, or ridings in the park : 
 and the cases already noticed of Leighton f. Leigh ton 
 and O'Brien v. O'Brien were to the same effect. 
 
 The court has, however, not gone further than 
 to protect what has been planted for ornamenty and 
 has repeatedly refused to act upon affidavits, stating 
 that timber is ornamental («). The order in Cham- 
 berlayne v. Dummer, it will be seen, is for trees 
 planted or groiv'mg for the ornament of the said 
 houses, or which grow in lines, walks, vistas, &c. the 
 inference being, that trees so planted, are planted 
 for ornament. Lord Eldon has, on more than one 
 occasion, expressed his disapprobation of this doc- 
 trine, which it would be wiser to confine than to ex- 
 tend. If it were to be considered as res integray 
 he once observed, the best course would have 
 been, to have required settlors and testators to say 
 what their own injunctions should be, rather than 
 leave them at liberty to give legal rights, while a 
 court of equity was afterwards to be called upon to 
 determine, how the parties having those legal rights, 
 might be said to execute them equitably (Ji). The 
 principle, his Lordship on another occasion, stated 
 to be, that if the grantor or testator has gratified his 
 own taste for ornament, though he has adopted the 
 species the most disgusting to the tenant for life, 
 
 (a) 16 Ves. 185. Lord Mahon v. Lord Stanhope, 3 Mad. Rep. 
 523 
 
 {b) 16 Ves. 185, 186.
 
 182 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Pcrsonsjbr 
 and against 
 tvliom Iri' 
 junctions 
 granted. 
 
 and the most agreeable to the tenant in tail, and 
 upon the competition between those parties the 
 court sliould sec, that the tenant for life was right in 
 point of taste, and the tenant in tail wrong ; yet the 
 taste of testator, like his will, binds them, and it is 
 not competent to them to substitute another species 
 of ornament, for that which the testator designed. 
 The question, which is the most fit method for 
 clothing an estate with timber for the purpose of 
 ornament, cannot be safely trusted to the court («). 
 The same principle has been lately acted upon more 
 extensively, and has been made to comprise, not only 
 trees planted for ornament of the house, but also of 
 out-houses and grounds : to plantations, vistas, ave- 
 nues, to the rides about an estate for many miles 
 round (Z*), and in a late case it was extended to 
 trees planted for the purpose of excluding objects 
 from the view(c). The doctrine has further been 
 applied to a common, where clumps of trees were 
 planted for the benefit of view, and as (if de facto 
 planted for ornament) the remoteness or contiguity 
 could not alter the principle, it was thought to make 
 no difference that the common was some miles from 
 the house, and land belonging to other persons inter- 
 vened (c?). The orders on these occasions are always 
 drawn up in the terms which were used in Chamber- 
 
 (a) 6 Ves. 110. 
 
 (b) Jebb V. Jebb, cit. 6 Ves. 110. Johnes v. Johnes^ ib. Lord 
 Tamworth v. Lord Ferrers, ib. 419. Williams v. Macnamara, 
 8 Ves. 70. 
 
 (c) Day V. Merry, 16 Ves. 375. 
 
 {d) Marquis of'Downshire v. Lady Sandys, 6 Ves. 106.
 
 INJUNCTIONS TO STAY WASTE. 183 
 
 layne v. Dummer, a copy of which, as extracted from Persons for 
 the register's book, is inserted below («). nhoni'ln- 
 
 It is reported to liave been determined by Lord juyictions 
 
 n 1- n • ^ • 1 granted. 
 
 Erskine, that a tenant for hie without impeachment, 
 
 cannot cut down trees which he has himself planted 
 for ornament, but that he may thin such trees (b). 
 If a tempest has produced gaps in w^ood planted for 
 ornament, it would not be considered waste to cut a 
 few trees, so as to produce an uniform and consistent 
 appearance (c). 
 
 Notwithstanding some doubts which were formerly Tenant in 
 entertained {d) it has long been settled that Tenant in possibility of 
 tail qftei^ possibility of issue ea:tincty is in every respect issue extinct, 
 as unimpeachable for waste as tenant for life, who is j 
 made so by express limitation (e). This privilege / 
 has always been considered as founded on the cir- / 
 
 {a) " That an injunction be awarded to restrain the defendant 
 Harriet Dummer, her servants, workmen, and agents, from cutting 
 down any timber and other trees growing on the estate in question, 
 which are planted or growing there for the protection or shelter 
 of the several mansion-houses belonging to the said estates, or for 
 the ornament of the said houses, or which grow in lines, walks, 
 vistas, or other grounds thereunto belonging; and that the in- 
 junction do also extend to restrain the said defendant, her servants, 
 workmen, or agents, from cutting down any timber or other trees, 
 except at seasonable times, and in a husband-like manner ; and 
 also from cutting down saplings or young trees not fit to be cut 
 as and for the purposes of timber, until the hearing of this cause, 
 or the further order of the court." Reg. Lib. A. 1781. fol. 452. 
 
 (i) _ V. Copley, 1 Mad. Ch. 144'. Sed qu. as the report 
 
 of the same case 3 Mad. Rep. 525. docs not agree with it. 
 
 (c) Lord Mahon v. Earl Stanhope, ib. 
 
 {d) 1 Cro. 242. Al. 84. 4 Co. 63. 2 Freem. 54. 
 
 (c) Herlakcnden's case, 4 Co. 62. Lewis Bowles's case, 1 1 Co. 
 79. 1 Roll. Rep. 177.
 
 184 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Personsfor 
 and against 
 whom In- 
 Jiaiclions 
 frranted. 
 
 cum stance of the inheritance once having been in such 
 tenant, and though by tlie death of the other donee 
 in tail special without issue, the estate is changed ; 
 yet it is said that the power to commit waste, and to 
 convert timber cut to his own use, is not changed [a) ; 
 and that a court of equity, except for destructive or 
 maUcious waste, will not interfere to restrain the 
 exercise of this legal right. 
 Tenant after Jt frequently happens that a person is at the same 
 
 possibility of . ^ n i-n ^ ^ • -in 
 
 a remainder, time, tenant lor lire and also tenant in tail, aiter pos- 
 sibility of issue extinct, of the remainder expectant 
 on his life estate. An important question lately arose 
 as to the right, of a person in this situation, to cut 
 timber. The limitations of the settlement were, to the 
 husband for life without impeachment of waste, re- 
 mainder to trustees to preserve contingent remain- 
 ders, remainder to the wife for life, remainder to the 
 first and other sons, remainder to the daughters in like 
 manner, with remainder to the heirs of the body of 
 husband and wife. The husband having died with- 
 out issue, the question arose as to the right of the 
 wife to cut timber, who had become tenant in tail 
 after possibility of this remainder. Lord Eldon ex- 
 pressed a strong inclination of opinion that what was 
 generally laid down as to the rights of tenant in tail 
 after possibility, did not necessarily apply to the pre- 
 sent case ; that the meaning of the doctrine was, 
 that as the donees in special tail had once the power 
 of committing waste, and of converting the timber 
 to their own use, so when by the death of one of 
 those donees, the estate was altered, yet the power 
 
 (c) Lewis Bowles's case, sup.
 
 INJUNCTIONS TO STAY WASTE. 185 
 
 was not altered ; but that the future existence of Persons for 
 
 p , , and against 
 
 that power, as the 'present existence ot it, was loundea ji,/,(^,„ /„. 
 upon the circumstance of the estate tail in posses- jii'ictwns 
 
 * _ granted. 
 
 sion ; that there was not one case, in which tenant 
 
 in tail after possibility of issue extinct, is said to be 
 dispunishable for waste, where that tenant had not 
 once been tenant in tail with the other donee in pos- 
 sessio7ii and the reasoning assigned to prove that such 
 j)erson was dispunishable, was the strong connection 
 with the fact, that such person was once tenant in tail 
 hi possession. His Lordship observed that he could 
 not go the length of holding that she should be at 
 liberty to cut timber, until the subject had been 
 further considered at law. A case was accordingly 
 sent for the opinion of the Court of King's Bench, 
 but this curious and interesting view of the case ap- 
 pears to have been entirely neglected in the argu- 
 ment, and in consequence of the present practice of 
 the courts of law not to assign any reasons for their 
 certificates, it is unknown whether it formed any 
 ground of the opinion which the court returned, 
 that she was not impeachable for waste (a). 
 
 The riglit to restrain tenant in tail after possibility Tenant after 
 from committing Equitable "waste, is as fully settled restrained 
 as it is in the case of tenant for life without im- from com- 
 peachment of waste (b). In a court of law, as ob- equitable 
 served by Sir J. Leach, a tenant in tail after pos- ^aste. 
 sibility of issue extinct, is in effect a tenant for life 
 without impeachment of waste : and courts of equity 
 
 (a) 12 East, 209. 
 
 {h) Abrahall v. Bubb, 2 Freem. 53. 2 Show. 69. 2 Eq. Ab. 757. 
 Williams v. Day, 2 Ch. Ca. 32. Anon. 2 Freem. 278. Cooke v. 
 Winford, 1 Eq. Ab. stated from the register's book, 3 Mad. 528.
 
 186 INJUNCTIONS TO STAY WASTE. 
 
 Persons for havc in the question of equitable waste, confounded 
 mid against \ j^jj^ ^-^j^ other tenants for life without impeachment 
 
 tvhom In- ^ 
 
 junction^ of wastc, and have not entered into the distinction 
 ^ that he is unimpeachable of waste, not by the pro- 
 
 vision of a grantor, but as a legal incident to his 
 estate («). 
 Tenant in The whole doctrine upon the subject of the rights 
 
 ed from both of tenants for life unimpeachable of waste, and 
 alienation by tenants after possibility of issue extinct, were ela- 
 
 special act i i . . 
 
 ofparlia- borately discussed in the late case of the Attorney- 
 ment or by general V. Duke of Marlboroucrh. That case also is 
 
 the reversion ^ ^ 
 
 being in the extremely valuable, for the consideration which the 
 question received, as to the rights of tenants in tail 
 restrained by Act of parliament from alienation., with 
 respect to the doctrine of equitable waste. In that 
 case the Duke of Marlborough entitled as tenant in 
 tail under an act of parliament to the honour and 
 manor of Woodstock, with a proviso that he should 
 not have power by fine or recovery, or other act, to 
 bar the said estate, was alleged to have cut, and to 
 be proceeding in cutting down trees planted for or- 
 nament, and for shelter of the mansion-house at 
 Blenheim, and also of an improper growth. The 
 bill, to which a general demurrer was put in, prayed 
 an account and injunction. Sir J. Leach, in the 
 first view which he took of this case, considered the 
 estate of the Duke as an estate tail, with all the in- 
 cidetits belonging to it, except those expressly taken 
 away by the act, and accordingly overruled the de- 
 murrer. It was afterwards, however, discovered, 
 that the Duke, by another act of parliament, which 
 
 (fl) 3 Mad. Rep. 539.
 
 INJUNCTIONS TO STAY WASTE. 187 
 
 had neither been inserted in the pleadings, nor Persons/or 
 alluded to in the argument, was bound to maintain "'.'/,, ,^^J^"J^ 
 Blenheim House; and it was then determined, thsLt junctions 
 
 ... granted. 
 
 upon that ground^ he was not at liberty to cut trees 
 
 essential to its ornament and shelter. 
 
 The final determination of this case, does not pro- 
 ceed therefore, upon the general doctrine applicable 
 either to tenants in tail specially restrained by act of 
 parliament from alienation, or tenants in tail, where 
 the reversion being in the crown, the estate is also 
 unalienable (dt). The question, whether a person in 
 this situation, is to be considered for this purpose as 
 tenant in tail, or tenant for life unimpeachable for 
 waste, still remains unprejudiced by decision. It 
 remains to be seen whether, on the one hand, by 
 analogy to the great body of authorities relating to 
 the case of tenant for life without impeachment of 
 waste, or the case of tenant in tail after possibihty 
 of issue extinct, which it more closely resembles, 
 the courts will interpose by injunction ? Or whether, 
 on the other, adopting the forcible arguments of 
 the court in delivering its original opinion, they 
 will consider the possessors of such estate as having 
 all the legal rights and incidents which belong to an 
 estate of that character, except where such rights 
 and incidents are specially qualified by the provisions 
 of the statute ; and that, in case there is no qualifi- 
 cation with respect to the right of cutting timber, 
 they are the legal owners of the timber ; and that 
 
 (a) By act of parliament 34- and 35 Hen. 8. c. 20. It is also 
 said that a reversion in the crown is not barrable at common law, 
 2 Roll. Ab. 293. cit. 3 Mad. 522. n.
 
 188 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Persons for 
 and against 
 XL'liom In- 
 junctions 
 QT anted. 
 
 Waste by 
 collusion. 
 
 there is no principle of jurisdiction in a court of 
 equity, to restrain the legal incidents of an estate 
 tail, with respect to timber, either because the estate 
 tail cannot be barred, or because the reversion is in 
 the crown ? 
 
 A court of equity will also interpose where a 
 person having an estate in remainder, to which the 
 privilege of cutting timber is annexed, is doing so 
 by collusion with the tenant in possession. Accord- 
 ingly, an injunction was granted where there was 
 tenant for life, remainder to another for life without 
 impeachment of waste, and the second remainder 
 man, by leave of the tenant for life, had en- 
 tered upon the premises and cut timber («). And 
 the same determination would be made where the 
 tenant for life and the remainder man in fee, subject 
 to contingent estates, were felling timber in col- 
 lusion (Z»), or, where the waste, was by a tenant for 
 life in possession, who had the next vested estate 
 of inheritance in remainder, but subject to inter- 
 mediate contingent estates (c), or by the trustee of 
 a term for a charity subject to waste, who had pur- 
 chased the reversion (c?). One of the first cases in 
 which the courts of equity interfered to restrain the 
 commission of waste by a trespasser, was where a 
 person was cutting timber by collusion with the 
 tenant (e). 
 
 (fl) Lady Evelyn's case, cit. 2 Freem. 55. 
 Bishop of Carlisle, cit. 1 Dick. 209. 
 {b) Garth r. Cotton, 1 Dick. 183. 
 (c) Williams v. Duke of Bolton, 1 Cox, 72. 
 {d) Bays v. Bird, 2 P. W. 398. 
 (c) Post, p. 192. 
 
 Fleming v. The
 
 INJUNCTIONS TO STAY WASTE. 189 
 
 It may not be improper to insert in this place Persons for 
 a case, which (although no decision was made ap- ""/^^"j^i"!^^ 
 plicable to this point, in consequence of the frame junctions 
 of the record), is nevertheless extremely valuable as ^.^°" 
 containing the observations of Lord Eldon, upon a Case in 
 case where trustees being directed to lay out a sum Jees^fbr'tlie 
 of money in land, of which they were themselves to purchase of 
 be successively tenants for life without impeach- which they 
 ment of waste, had purchased an estate with a dis- ^'*^^^ *» ^'^ 
 
 ... . . themselves 
 
 proportionate quantity or tnnber growing upon it. tenants for 
 The testator had devised his real estate to the use ''^^ ^"^'^ 
 
 waste, pur- 
 
 of the defendant, T. H. Lamb, for life, without im- chased an 
 peachment of waste ; remainder to trustees to pre- dtsmonorV ^ 
 serve, &c. ; remainder to his first and other sons in tionate 
 tail (by a person whom he did not marry) ; remainder timber upon 
 to the defendant, Sir J. B. Burges, for life without ^^• 
 impeachment of waste ; remainder to trustees to pre- 
 serve, &c. ; remainder to the plaintiff C. M. Burges 
 for life ; remainder to his first and other sons, &c. 
 with various remainders over. The testator then gave 
 the residue of his personal estate, which amounted 
 to about ^70,000, to the defendants Lamb and Sir 
 J. B. Burges, to be settled to the same uses. The 
 trustees purchased an estate in Sussex at the price 
 of c;621,500, which included a considerable quantity 
 of timber, valued at £1603. Sir J. B. Burges took 
 a lease from Lamb of this estate for 99 years, if he 
 should so long live, with an exception of the timber, 
 and a reservation to Lamb of the right to enter and 
 cut. The bill was filed by C. M. Burges, charging 
 the executors with a breach of trust, in })urchasing 
 an estate with timber u})on it ; stating that the de-
 
 190 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Persons for 
 and against 
 whom In- 
 junctions 
 granted. 
 
 fendant Lamb had cut timber which was ornam.ental, 
 &c. and praying an account. 
 
 An injunction having been obtained, restraining 
 Lamb from cutting timhuT generally : upon the mo- 
 tion to dissolve, Lord Eldon observed, that this was 
 a case of as much importance and difficulty as any 
 that he had ever been called upon to consider. That 
 if this estate had been the subject of an actual de- 
 vise, subject to these limitations, the tenant for life 
 would have had all the power over the timber which 
 in law belonged to his estate, and in equity also, ex- 
 cept such as this court, by a due application of the 
 principle of equitable waste, denies to a tenant for 
 life unimpeachable for waste. That the question 
 then remained, whether this was a due execution of 
 the trust, by laying out the money so, that under 
 the limitations to themselves for life without im- 
 peachment of waste, one of the trustees might im- 
 mediately draw back into his own pocket c^lGOO of 
 the trust money. His lordship said, that he could not 
 deny Lord Thurlow's opinion, in the case of Lady Ply- 
 mouth V, Lady Archer («), that a purchase must be 
 made of an estate, in which the tenant for life without 
 impeachment of waste, would have the right to some 
 extent of cutting timber. That the only rule left by 
 that case was, that the purchase is to be such as the 
 trustees, in a just and sound exercise of their discre- 
 tion, could make ; but if under that act the tenant 
 for life acquired the right to cut some timber, that 
 mere circumstance would not make it an abuse of 
 
 (a) 1 Bro. C. C. 159.
 
 INJUNCTIONS TO STAY WASTE. IQl 
 
 trust, or a mistaken exercise of tlieir discretion. The Persons for 
 court, taking care that the fund shall be laid out ac- ""/i^^^j^^^ 
 cording to a reasonable and sound execution of the junctions 
 trust, must not, on the other hand, place trustees in ^ 
 such difficulties that they never can execute a trust 
 of this sort without coming to a court of equity. 
 That in the present case there were several tenants 
 for life unimpeachable for waste, and it was very dif- 
 ficult to hit the ratio : but that if the timber should 
 bear a veiry considerable 'proportion to the "value of the 
 'whole purchase^ the tenant for life, especially if one 
 of the trustees, could not possibly be permitted to 
 take it. The court might be driven to take this 
 course : that trustees, laying out the fund in a tim- 
 bered estate, without applying that reasonable and 
 discreet attention, that in a fair view, ought to be 
 applied to the interests of all parties, should be con- 
 sidered in a court of equity, as not buying any 
 timber for their own benefit. That this was a mode 
 of cutting the knot, which perhaps in a new and dif- 
 ficult case, might be adopted. 
 
 The interference in restraint of waste was originally Trespass, 
 founded on privity of title, and the courts were for 
 a long time extremely strict in confining their relief 
 to such cases. If, therefore, the plaintiff either 
 happened to state an adverse title in the defendant, 
 or the defendant in his answer positively denied the 
 plaintiff's title, injunctions were always either re- 
 fused, or having been granted were dissolved. Lord 
 Eldon has noticed several instances of the extreme 
 strictness of the court during the time of Lord 
 Bathurst and Lord Thurlow, in adhering to this 
 rule : thus if the bill contained a passage frequently
 
 192 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Persona for 
 and a<rninsl 
 tvhom In- 
 junctions 
 granted. 
 
 Refused in 
 the earlier 
 cases. 
 
 inserted now, that the defendant pretends that 
 j)laintiff is not entitled to the estate, he stated 
 himself out of court. In a case where the tenant 
 got into possession of an equitable estate, in con- 
 sequence of which an ejectment could not be main- 
 tained, and a bill was filed by a person alleging him- 
 self to be devisee, in order to be enabled to try his 
 title at law, and to restrain waste, if the heir posi- 
 tively denied the will, and insisted upon his own 
 title; the injunction was refused. So again upon a 
 bill by the heir against a devisee in possession to stay 
 waste, the answer stating that the will was attested 
 by three witnesses, the injunction was dissolved {a). 
 In one of the first cases upon this point before 
 Lord Thurlow% a search w^as made for precedents in 
 which the court had restrained a trespasser, and none 
 being found, an injunction was refused (J)). In an- 
 other, where the defendant had for some time been 
 authorised by the plaintiff to dig earth in a brick 
 field to a certain depth from the surface, the de- 
 fendant having dug beyond the limit, the plaintiff 
 revoked the authority, and required him to desist 
 from digging any further, but the defendant con- 
 tinuing to dig. Lord Thurlow refused an injunction, 
 saying the defendant was a mere stranger, and might 
 
 (a) 19 Ves. 154. 
 
 {h) Mogg T. Mogg, 2 Dick. 670. There is a case in which 
 Lord Hardwicke granted an injunction, upon a forcible entry, 
 against the commissioners of the turnpike for digging gravel on 
 land demised to the plaintiff; but this was on the equity of qiiiet- 
 ing possession, the plaintiff having been more than three years in 
 possession before the filing of the bill, Hughes u. Morden College, 
 1 Ves. 188.
 
 INJUNCTIONS TO STAY WASTE. 193 
 
 be turned out of possession immediately («). In one Persona for 
 case, indeed, where the defendant stating tliat he ^^,]jQ,nIn- 
 was in possession by a title of his own, admitted tli-at>"c/iOMs 
 
 . . (^ranted. 
 
 he was let into possession by the plaintiff's tenant ^ . 
 
 without his knowledge : the court granted an in- 
 junction, but solely because it was a breach of the 
 tenant's duty to his landlord, and therefore that the 
 defendant's title was for this purpose to be taken as 
 no better than the tenant's ; but it was said that if 
 the defendant had obtained possession without par- 
 ticipating in that breach of the tenant's duty, the 
 court w^ould not have interfered [h). 
 
 Lord Thurlow, however, at length relaxed the Where 
 rigour of this rule, though not without great re- ^^'^^ ^ 
 luctance, and influenced solely by the irreparable 
 ruin which would have followed his refusal. The 
 first case upon this subject has been repeatedly 
 cited by Lord Eldon, and is known by the name of 
 Flamang's case (c). The plaintiff, who was the ]ho- 
 prietor of two adjoining closes, under which were 
 mines, demised one of them to the defendant; the 
 tenant opened a mine in the close demised to him : 
 " that," observed Lord Eldon, " was waste from the 
 privity : but when we asked an injunction against his 
 digging in the other close. Lord Thurlow hesitated 
 much ; but did at last grant the injunction ; first, 
 from the irreparable ruin of the property, as a mine ; 
 secondly, as it w^as a species of trade ; and, thirdly, 
 upon the principle of this court enjoining in matters 
 
 (a) Mortimer v. Cottrell, 2 Cox, 205. 
 
 {b) Hamilton v. Worsefold, November, 1786, cit. 10 Vcs. 290. n. 
 
 (c) 6 Ves. \Ti. 7 Ves. 308. 15 Ves. 138. 
 
 O
 
 191' INJUNCTIONS TO STAY WASTE, 
 
 Persons for j of trespass, wlicrc iiTcparablc damage is the cou- 
 n^honi In. i Sequence (a).'* 
 junctions Xlic next case upon this point, is one which is 
 
 granted. n i n t i 
 
 most frequently referred to, viz. Robinson v. Lord 
 
 Byron (b), in which the defendant having penned up 
 the water of the river Lyme, which flowed through 
 his park, so as to prevent its flowing in its usual 
 course to the plaintiff's mills, and at other times let- 
 ting out the water, in such quantities as to endanger 
 the mill ; the court interposed, on the ground of the 
 plaintiff's using the rights in a different way, so as 
 to do mischief, and an order made on great con- 
 sideration, and amended by Lord Thurlow, was pro- 
 nounced to restrain the defendant from using dams, 
 wears, shuttles, floodgates, and other erections, so 
 as to prevent the water from flowing to the mill iii 
 such regular quantities, as it had done, before the 
 day, on which the injury complained of, was com- 
 menced. 
 
 So little, however, did Lord Thurlow then ap- 
 prove of this practice, that of the above cases of 
 Mogg r;. Mogg and Mortimer v. Cottrell, one of 
 them was considerably subsequent to, and the other 
 contemporary with these three decisions. The prin- 
 ciple, however, has been now without scruple ap- 
 plied, to restrain a trespasser cutting timber by col- 
 lusion with the tenants (c), a person digging from ad- 
 joining mines into the plaintiff's mine {b) ; a lord of 
 a manor digging for coal or cutting timber on the 
 
 (a) 7 Ves. 308. 
 
 (6) 1 Bro. C. C. 588. 
 
 (c) Courthope v. Mapplesden, 10 Ves. 290. 
 
 {d) Mitchell v. Dors, 6 Ves. 14-7.
 
 INJUNCTIONS TO STAY WASTE. 19-5 
 
 premises of a copyhold tenant («) ; a purchaser Persons for 
 
 ,. 1-1 • -1 1- -Til and wainst 
 
 having obtained possession without having ])aia tiie u^jimnin- 
 purchase money and cutting timber {b) ; and in pi»ctions 
 
 favour of a lord of a manor and his lessees, against , 
 
 persons taking stones of a peculiar value found 
 at the bottom of the sea, within the limits of the 
 manor (c). The court, however, is always more 
 ready to listen to an application for an injunction 
 on the ground of w^aste, than on that of trespass (r/), 
 in which it expects a strong case of destruction or 
 irreparable mischief to be made out : of irreparable 
 mischiefj which may be completely effected before 
 any trial can be had as to the controverted right [e). 
 
 Lord Eldon has observed that he did not recollect Not granted 
 an injunction to stay trespass being ever granted, jy^\j'tit\V\'r 
 where the fact of the plaintiff's title to the property, denied by 
 
 T 111 ^ n\ rT^^ 1 tlic answer. 
 
 was disputed by the answ^er (/ ;. 1 hus, where an 
 injunction had been obtained on affidavit against 
 cutting and pasturing cattle in a wood, the plaintiff 
 praying the injunction as tenant in fee, and as lord 
 of the manor inclosing under the statute : the de- 
 fendants denying the former title, and as to the 
 latter claiming common of pasture and estovers, and 
 stating that after the inclosure sufficient common of 
 
 (a) Grey v. Duke of Northumberland, 17 Ves. 281. White- 
 church V, Holworthy, 19 Ves. 213. 
 
 (Jb) Crockford v. Alexander, 15 Ves. 138. 
 
 (c) Earl Cowper v. Baker, 17 Ves. 128. 
 
 (</) De Salis v. Crossan, 1 Ba. & Be. 188. The report of this 
 case is not very satisfactory. 
 
 (c) 7 Ves. 308. 
 
 {/) 19 Ves. 117. In Kinder v. Jones, 17 Ves. 110. an in- 
 junction was granted before answer, but Lord Eldon had previously 
 directed the defendant to be served with notice of the motion. 
 
 o 2
 
 19G 
 
 JNJUNCTrONS TO STAY WASTE. 
 
 Persons Joi\ 
 and agains& 
 whom In- \ 
 junclions I 
 granted. \ 
 
 Tenant at 
 will and 
 tenant by 
 sufferance. 
 
 Copyholder. 
 
 pasture would not be left; the plaintiff having be- 
 fore the bill, been nonsuited in an action of trespass, 
 and entered into an agreement witli some of the 
 tenants, the injunction was dissolved on the an- 
 swer (<7). And in another case, where the plaintiffs 
 claimed as devisees, and the defendant, the heir-at- 
 law, insisted by his answer that the will was not well 
 executed ; Lord Eldon refused a motion for an in- 
 junction {h). The same motion was also refused, in 
 a prior case where the defendant was in possession, 
 the tenants had attorned, and the plaintiff having 
 brought an ejectment had failed in it, but as the bill 
 alleged, not on the merits (c). 
 
 It may now, therefore, be considered as esta- 
 blished, that in every case in which the plain- 
 tiff's title is not controverted, a court of equity 
 will interpose to restrain irreparable mischief. To 
 the cases already cited might be added those of a 
 Tenant at will, or a Tenant by sufferance, whose te- 
 nancy is ipso facto determined by the commission of 
 v.'aste, and who are from thenceforth considered as 
 trespassers, and yet who w^ould probably, be con- 
 sidered as coming within the reach of the principle 
 of the modern decisions. 
 
 The right of the lord to restrain a Copyholder 
 from committing waste, seems also to admit of as 
 
 {a) Hanson v. Gardiner, 7 Ves. 305. 
 
 {b) Smith t'. Collyer, 8 Ves. 89. The same thing appears to 
 liave been done in the case of -Lee v. Lee, 54 Harg. MSS. 158. 
 Vide, however, Sir W. Grant's observations in Jones v. Jones, 
 3 IMeriv. 173. there being apparently no reason why the court should 
 not interpose on the ground of preserving property pendente lite. 
 
 (c) Pillsworth v. Hopton, 6 Ves, 51.
 
 INJUNCTIONS TO STAY WASTE. 197 
 
 little doubt. In the case of Dcnch v. Bamptoii (a), Persons for 
 however, w^here a bill was filed by the lord against a i^^jium^jn.' 
 copyholder for an account of timber cut, and an in- Junctions 
 
 ' Ti-ni 11- •• 1 1 granted. 
 
 junction. Lord Rosslyn stated his opinion, that the 
 
 copyholder was not to be restrained from cutting 
 timber, if he chose to do so, at the risk of forfeiture. 
 That it was not like the case of tenant for life and 
 remainder man, who claim under the same title ; 
 that tlie reversioner enters for the forfeiture of the 
 estate for life j that the lord has no right of entry ; 
 he must have the forfeiture presented by the homage : 
 that there could be no action of waste between the 
 lord and tenant : the lord could get no more than 
 the forfeiture : and the bill was dismissed wdth 
 costs. 
 
 The point, however, afterwards came before Lord 
 Eldon, upon a demurrer to a bill by a lord for an ac- 
 count of turves cut and taken, and for an injunction 
 not waiving the forfeiture, and Dench v. Bampton 
 was much relied upon in support of the demurrer. 
 His Lordship, however, observed that in many cases 
 the forfeiture was a very inadequate remedy: as in 
 the instance of a barren spot upon which valuable 
 timber was growing; if the copyholder only for- 
 feited his copyhold by cutting down these trees, 
 he might be a considerable gainer by his wrongful 
 conduct. His Lordship accordingly overruled the 
 demurrer, and upon affidavit of the principal facts 
 alleged by the bill, an injunction was afterwards 
 granted (J)). 
 
 (a) 4 Ves. 700. 
 
 (/)) Iliduuds V. Noble, 3 Mcriv, Glo. 
 
 4
 
 198 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Peraom^for 
 and ngainst 
 ivhoni In- 
 jimctumfi 
 granted. 
 
 Injunctions 
 to restrain 
 bretiches of 
 covenant. 
 
 It has already been noticed, that a court of equity 
 will frequently grant injunctions in the nature of a 
 specific performance, to restrain the violation by a 
 tenant, of covenants contained in his lease. The 
 cases upon this subject, are so closely connected 
 with the head of waste, that they may not improperly 
 be inserted in this place. Although many of them 
 have been granted solely on the equity of restraining 
 a breach of covenant^ it is impossible not to observe, 
 that in the greater injunctions might have been sup- 
 ported, on the ground of waste. 
 
 Thus injunctions have frequently been granted to 
 restrain lessees, who had covenanted to keep the 
 banks of rivers or ponds in repair, from destroying 
 or impairing them {(i) j or an outgoing tenant from 
 removing dung or crops, contrary to express cove- 
 nants contained in his lease (/?) ; or where the viola- 
 tion of the covenant was not provided for by liqui- 
 dated damages, to restrain the ploughing up of 
 meadow, &c. (c). 
 
 In one of the earliest cases upon this subject an 
 injunction was granted till the hearing, upon an 
 appeal to the House of Lords, to restrain a lessee 
 from digging sand, gravel, &c. in violation of a 
 
 (a) Lord Batlmrst v. Burden, 2 Bro. C. C. 64^. Lord Kilmorey 
 T. Thackerajj cit. ib. 
 
 (i) Johnson x\ Goldswaine, 3 Anst. 749. Geast v. Lord Belfast, 
 ib. n. Pulteney v. Warren, 5 Ves. 147. 260. and errata, ib. Lord 
 Grey de Wilton u. Saxon, 6 Ves. 106. The case of Lathropp v. 
 Marsh, 5 Ves. 259. is clearly wrong, as there were not only 
 breaches of covenant, but also distinct acts of waste committed and 
 threatened. 
 
 (r) Aylet r. Dodd, 2 Atk. 329. Woodward v. Gyles, 2 Vern. 
 ] 19. Rolfc "J. Peterson, 2 Bro. P. C. Ed. Tom). i36.
 
 INJUNCTIONS TO STAY WASTE. 199 
 
 covenant secured by a penalty (a"). And in a case Persons for 
 shortly afterwards before Lord Hardwicke, an in- JX?»"/"-' 
 junction was granted, expressly on the ground oi' jn'ictions 
 
 . . , 1 n • (rranted. 
 
 restrainnig a breach of covenant, against a tenant, ' 
 
 who was converting houses to a different use, from 
 that prescribed by his lease (h). 
 
 Though a lessee is required by law to cultivate A» to culti- 
 the lands demised to him in a husbandlike manner, [,^ji""n'(liike 
 conformable to the custom of the country (c), yet manner, con- 
 this is usually defined by some express covenant, ^l,^, custom 
 It has upon this subject been determined at law, "^ ^lie 
 
 1 . country. 
 
 that a covenant to occupy in a good and husband- 
 like manner, according to the custom of the country, 
 will be broken by contravening the prevalent course 
 of husbandry in the neighbourhood, and that even if 
 the contract be simply to occu])y the estate in a good 
 and husbandlike manner, this will throw a liabiUty 
 upon the tenant to cultivate the land according to 
 the practice of the neiglibourhood (r/) ; and even, 
 though a farm be held under a written agreement, 
 the custom of the neighbourhood may well be in- 
 sisted upon, provided it be not either expressly or 
 by implication excluded by the terms of the agree- 
 ment (e). 
 
 In equity an injunction has been granted to re- 
 
 (a) City of London v. Pugli, 4 Bro. P. C. Ed. Toml. 395. 
 
 {b) Worden v. Ellers, ISth December, 1739. There is a very 
 full account of Lord Hardvvicke's judgment, G Serj. Hill, MSS. 2. 
 and 12 ib. 76. 
 
 (c) Powley V. Walker, 5 T. R. 373. 
 
 (f/) Leigh V. Hewitt, 4 East, l.'jl'. 
 
 («) Wigglcsworth v. Dallison, Dougl. 20L Senior v. Armitage, 
 1 Plolt, N. P. C. 197. Webb V. Plunnncr, 2 B. & A. 716.
 
 200 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Persons for 
 and ai^nin.st 
 "whom Ih- 
 junclions 
 granted. 
 
 Distinction 
 between ex- 
 press and 
 implied 
 covenants. 
 
 Covenant to 
 leave pre- 
 mises in re- 
 pair^ does 
 not preclude 
 an injunc- 
 tion. 
 
 strain a tenant from year to year (wlio, it was said, 
 was equally bound as a tenant for a longer period 
 to manage his farm in a husbandlike manner), from 
 removing crops, manure, &c. except according to 
 the custom of the country (a) : in a previous case 
 a tenant was restrained from ploughing up pasture 
 land : the lease did not contain an express covenant 
 not to convert pasture into arable, but the landlord 
 was holden entitled to the injunction, on the ground 
 of there being a covenant to manage pasture in a 
 husbandlike manner (Z*). Uj^on the same principle 
 the court has interfered to restrain a tenant from 
 sowing mustard, saffron, woad, or other deleterious 
 crops, as being contrary to the course of hus- 
 bandry (c). 
 
 A distinction has been made as to enforcing by 
 injunction the specific performance of depress cove- 
 nants and implied agreements ; and the court has re- 
 fused to interfere to restrain a tenant, who was 
 holding over, from removing articles contrary to the 
 custom of the country, as the court would not imply 
 special covenants as to cultivation from the mere 
 act of holding over (J). 
 
 A covenant to repair, and at the end of the term 
 to surrender buildings in good condition, does not 
 preclude an injunction against pulling them down 
 and carrying away the materials just before the end 
 of the term (e). 
 
 -, 16 Ves. 173. 
 
 (a) Onslow v. — 
 
 (b) Drury v. Molines, 6 Ves. 328. 
 
 (c) Pratt v.* Brett, 2 Mad. Rep. 62. 
 
 (d) Kimpton v. Eve, 2 V. & B, 349. 
 
 (<?) Mayor, Sec. of London v. Hcdger, 18 Ves. 355.
 
 INJUNCTIONS TO STAY WASTE. '201 
 
 Where there is a covenant not to convert pre- Persons/or 
 
 1 . j^ 1 -i-i ^ ^"^ aprainst 
 
 mises into a shop, or to carry on a trade witliout a tj,/^o„°/„. 
 license in writin^^; the permission of the lessor with- junctions 
 
 granted. 
 
 out writing to carry on one trade will not amount 
 
 to a general licence for any trade [a). License to 
 
 mi 1 • n • • • 1 -r. 1 •! • • • i.1 carrv on one 
 
 ihe subject or interposition by rrohibition in the trade does 
 case of waste committed by Ecclesiastical persons, ""^ extend 
 
 •^ . '■ to all trades. 
 
 was discussed with a degree of learning and research, -^y^jg^g i^ 
 in the case of Jefferson v. Bishop of Durliam (/>), Ecclesiasti- 
 
 1 1 . • -,1 11 -1 • . 1 ^ • cal persons. 
 
 that makes it impossible to add any thing to what is 
 there collected. It appears from thence, that not 
 one of the early text writers, were aware of any com- 
 mon law remedy against churchmen committing 
 waste, and that the year book 2 H. 4<. contained an 
 extrajudicial opinion of Thirning, C. J., that if a 
 bisliop or archdeacon cut down all his wood, he 
 should not be punished at common law. In the 
 reign of James the first, however, Lord Coke un- 
 assisted by, and indeed, contrary to all practice, sa- 
 gaciously inferred from two ancient records (c), that 
 a writ of prohibition lay at common law against a 
 churchman who committed waste : and upon these 
 authorities in the reign of Charles the first, Lord 
 Keeper Coventry [d] issued a prohibition of waste to 
 a churchman under the great seal, on the application 
 of the patron. Lord Coke in one case (e), went so 
 far as to say that any one might have a prohibition 
 as w^ell as the patron, for it was the king's writ, and 
 
 (a) Macher v. Foundling Hospital, 1 V. & B. 188. 
 
 {b) 1 B. & P. 105. 
 
 (c) 1 B. & r. 109. n. 
 
 {d) Ackland v. AtwcU, 2 Ro. Ab. 813. 
 
 (c) 1 Roll. 8G. lb. 3:}.5. 3Bulst. 91.
 
 202 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Personsjbr 
 and against 
 whom In- 
 Jimctions 
 granted. 
 
 What acts 
 amount to 
 waste in 
 ecclesi- 
 astical per- 
 sons. 
 
 any one might have a prohibition for the king. It 
 appears, however, most satisfactorily, from a review 
 of the doctrine collected in Jefferson v. Bishop of 
 Durham, that Lord Coke was not justified in the 
 extent to which he carried this doctrine ; and though 
 that case in point of actual decision, merely esta- 
 blishes that the Court of Common Pleas has no 
 power to issue an original writ of prohibition to 
 restrain a bishop from committing waste in the pos- 
 sessions of his see, at the suit of an uninterested 
 person : yet it may be gathered as the opinion of the 
 learned persons who determined it, and appears to 
 be fairly deduced in argument, that no court of com- 
 mon law, has the power of issuing this writ against 
 any ecclesiastical person, but that it can only issue 
 out of Chancery. 
 
 The parson has a fee simple, qualified and under 
 restrictions, in right of his church: but he cannot 
 do every thing that a private owner of the inherit- 
 ance can. He may cut down timber for the re- 
 pairs of the parsonage house or chancel : if it is the 
 custom of the country, he may cut down underwood 
 for any purpose, but if he grubs it up it is waste. 
 He may cut timber for repairing old pews that be- 
 long to the rectory, and he is entitled to botes for 
 repairing barns and outhouses belonging to the par- 
 sonage («). But he cannot cut down timber for 
 any other purpose, nor can he open mines, though 
 he may work mines already open. A Bishop 
 even cannot open mines, in the possessions of his 
 see. Lord Hardwicke mentioned an application 
 
 (a) 2 Atk. 216.
 
 INJUNCTIONS TO STAY WASTE. 203 
 
 made to parliament by Talbot, Bisliop of Diir- Persons/or 
 ham, to be enabled to open mines, which was re- ti,/,o,„*/„" 
 
 fused ((7). junctions 
 
 It has been before alluded to, as a point which has f '_ 
 
 been much discussed, how far ecclesiastical persons, Eccksi- 
 are bbund specifically to apply, the timber cut for sons no^r'^" 
 the purpose of repairs, towards the actual repairs bound speci- 
 for which it was wanted. Lord Hardwicke was of apply timber 
 opinion that they were not so restricted (/>) ; and ^^\ ^^^ ^^' 
 Lord Eldon has observed, that it would defeat the 
 general intention of the law, that the possessions of 
 the church should tend to the maintenance of -the 
 church ; if ecclesiastical bodies were compellable in 
 every instance to apply the identical timber, by re- 
 moving it from the most distant parts of the country 
 in which it might happen that their property lay (c). 
 And in a very recent case, tlie same doctrine was 
 distinctly laid down by Sir T. Plumer (r/). 
 
 A court of equity frequently interposes by in- in wliat 
 umction against the rector, at the suit of the patron, cases a court 
 
 Jo ' r ' or equity will 
 
 to stay waste (e) . Lord Hardwicke also observed, interpose 
 that injunctions have been granted to stay waste, at cfe^si'astical 
 the instance of the Attorney-general, on behalf of persons. 
 the crown, the patron of bishops (/"). And though 
 
 (a) Amb. 176. 
 
 {b) Amb. 176. 
 
 (c) Wither v. Dean, &-c. of Winchester, 3 Meriv. 4'28. Et vide 
 Attorney-general v. Geary, ib. 522. 
 
 {d) Herring v. Dean, &c. of St. Paul's, 2 Wils. Ch. Rep. 1 . 
 
 ((?) Bradley v. Strachy, Barnard. Ch. Rep. 399. 2 Atk. 217. 
 1 B. & P. 115. n. Knight u. Moseley, Amb. 176. 
 
 (/) Amb. 176.
 
 i30t INJUNCTIONS TO STAY WASTE. 
 
 Persons for it has been said, that no precedent could be found 
 iv/iom^In-^ for tliis («), yct the doctrine has been recognized 
 jundums both by Lord Eldon (/>) and Mr. Justice Heatli(c). 
 
 granted. o t>. i /--h , • i i i i 
 
 I bo Deans and Chapters, it should seem, may be 
 
 restrained by injunction at the suit of the Crown ; 
 but not at the application of a person having^o in- 
 terest ; and therefore where a lessee filed a bill to 
 restrain the Dean and Chapter of Winchester from 
 cutting timber, Lord Eldon was of opinion, that ex- 
 cept so far as he might derive any right or interest 
 under agreement, he was clearly an uninterested 
 stranger, and dissolved an injunction which had been 
 obtained by him (d). 
 
 Lord Thurlow, though not without great hesita- 
 tion, granted an injunction at the instance of a pa- 
 troness against the xtidow of the deceased rector, who 
 was committing waste. In opposition to the motion, 
 it was contended, that where a party applies for an 
 injunction, it was absolutely necessary previously to 
 establish a title to the premises in question, and that 
 the patron could not show the requisite title, having 
 nothing more than a right of patronage, the fee 
 simple being in abeyance during the vacancy. In 
 this case the diocesan, ordinary, and churchwardens 
 (who were sequestrators), were made co-plaintiffs ; 
 but it was contended by the counsel in support of 
 the injunction, and seems to have been admitted 
 by the court, that this was unnecessary, and that 
 
 (fl) 1 B. &P. 116. 
 
 {b) 3 Meriv. 427. 
 
 (c) 1 B. & P. 131. 
 
 {(l) Wither v. Dean unci Chapter of Winchester, 3 Meriv. 1-21.
 
 INJUNCTIONS TO STAY WASTE. 205 
 
 the plaintiff as patroness had in herself sufficient Persons for 
 
 . , . , and as^aitist 
 
 right [a). x^hoinln- 
 
 A bill of this nature oudit not to pray an account, junction 
 
 ,1 , ^ granted. 
 
 as the patron is not entitled to any prohts from the 
 
 living (b). 
 
 Before the disabling statutes bishops had a very 
 extensive right of cutting timber, and consequently 
 of granting leases without impeachment of waste. 
 There are two instances of injunctions granted 
 against such tenants, not on the ground of the 
 want of right in the bishops to grant such leases, 
 but in consequence of the unconscientious use which 
 the tenants were making of their power to commit 
 waste (c). 
 
 (a) Hoskins v. Featherstone, 2 Bro. C. C. 552. 
 (i) Amb. 176. 
 
 (c) Bishop of London v. Webb, 1 P. W. 527. Bisliop of Win- 
 chester's case, cit. 2 Freem. 55,
 
 206 
 
 Account. 
 
 INJUNCTIONS TO STAY WASTE. 
 
 CHAPTER IX. 
 
 Of Decrees for Account and Satisfaction of Waste : the 
 Application of Timber accidentally severed or directed 
 hy the Court to be felled. 
 
 As the doctrine respecting the Practice of courts 
 of equity in the granting, continuing, and dissolving 
 injunctions to stay waste is collected in a subsequent 
 part of this Treatise j the present chapter will only 
 contain the consideration of that jurisdiction which 
 is exercised in decreeing an Account and Satisfaction 
 of waste committed, and some minor points of prac- 
 tice connected with the subject. 
 Account. In all those cases in which a bill for an injunction 
 
 will lie, the courts of equity, upon the principle of 
 preventing multiplicity of suits, will give an account 
 of and satisfaction for waste already committed. 
 Lord Hardwicke, in one case alluding to this juris- 
 diction, observed, that as in bills for account of 
 assets, &c., which originally were bills for discovery, 
 without which an account could not be had, the 
 court, in order to make a complete decree, gave the 
 party his debt likewise ; in like manner upon bills 
 for injunctions, a court of equity, in order to give 
 complete relief, gave the party an account and sa- 
 tisfaction for the waste committed, without obliging 
 him to bring an action at law, as well as a bill in
 
 INJUNCTIONS TO STAY WASTE. 207 
 
 equity (a). This doctrine is clearly established Account. 
 where the account prayed is consequential to the in- ' 
 
 junction^ but how far a court of equity will give an 
 account of waste committed, and decree satisfaction, 
 where that relief is not consequential to an injunc- 
 tion, is a point upon which the authorities are much 
 at variance. 
 In the case of mines and collieries, which are looked Account 
 
 n ^ ^ o granted of 
 
 upon in equity as a species oi trade, a decree lor an the profits of 
 account of profits has been frequently made, although '^""'^f I '''^" 
 no injunction has been prayed by the bill (b). This injunction 
 relief, however, is the same as the account given by P^^^® * 
 a court of equity of rents and profits, and cannot be 
 maintained upon a mere legal title (c). 
 
 The question upon which the dicta and authorities Quaere 
 are much at variance is, whether a bill will ]ie merely timber. 
 for an account of timber cut, and not as consequential 
 to an injunction? In the case of Jesus College v. 
 Bloom, which was a bill for an account and satis- 
 faction of waste in cutting down trees brought 
 against an assignee of the lessee, after an assign- 
 ment of the term, for waste done before assignment. 
 Lord Hardwicke expressed himself, to be clearly 
 of opinion, that a bill could not be brought, for an 
 account of waste, ^without at the same time 'praying an 
 injunction : that the ground of coming into the court, 
 was to stay waste j not by way of satisfaction for the 
 
 (a) 3 Atk. 263. Redes. Tr. 96. n. 
 
 (6) Bishop of Winchester v. Knight, 1 P. W. 406. Story v. 
 Lord Windsor, 2 Atk. 630. Jesus College c. Bloom, 3 Atk. 264. 
 Amb. 54. Pulteney v. Warren, 6 Vei, 89. 
 
 (c) Sayer v. Pierce, 1 Ves. 232.
 
 208 INJUNCTIONS TO STAY WASTK. 
 
 Account. damage, but by way o^ prevention of the wrong ; and 
 ' that the account was afterwards granted, only on the 
 
 maxim, of preventing multiplicity of suits. The bill 
 was accordingly dismissed with costs. In a subse- 
 quent case («), Lord Hardwicke made the same 
 distinction. He said, that after the estate of the 
 lessee was determined, and a new lessee is in pos- 
 session, a person, merely for an account of timber 
 felled by way of wrong, could not come into a court 
 of equity. But where the person continues in pos- 
 session, and consequently in a condition of commit- 
 ting more waste, there a person is proper to come 
 into equity for an injunction to stay waste. And 
 he said, " though the plaintiffs have not actually 
 moved for an injunction, they might reserve that 
 relief till the hearing of the cause, if they thought 
 proper ; and I am of opinion it is incident to their 
 estate, and they are entitled to an account of such 
 waste." It seems also, although his lordship has never 
 had occasion to enter very minutely into the subject, 
 that Lord Eldon entertains the same opinion (h). 
 
 On the other hand, in the case of Whitfield v. 
 Bewit(c), the tenant for life in possession having 
 cut down and sold timber, and threatened to open 
 mines ; upon a bill for an account of the timber, and 
 for an injunction to stay opening the mines, it was 
 objected that trover would lie at law. Lord Maccles- 
 field, however, said that it might be very necessary 
 for the party who had the inheritance to bring his 
 
 (fl) Smith V. Cooke, 3 Atk. 381. 
 
 [b) 6 Ves. 89. Grierson v. Eyre, 9 Ves. 346. 
 
 (c) 2P. W. 240.
 
 INJUNCTIONS TO STAY WASTE. 209 
 
 bill, as it might be impossible for him to discover Account. 
 the value of the timber, it being in possession of ~ 
 and cut down by the tenant for life. 
 
 The case of Garth v. Cotton is a remarkable in- 
 stance of a bill for an account of waste, in which 
 no injunction was prayed : and though it differs in 
 some respects from the case of Jesus College v. 
 Bloom, yet the mode in which Lord Hardwicke 
 endeavoured to avoid the authority of his own de- 
 termination in that case, cannot be but considered 
 as a blemish to that celebrated judgment ; as the 
 two cases will, upon examination, be found to be 
 perfectly reconcileable. The bill in Garth v. Cotton 
 was filed by a contingent remainder man, who had 
 come into possession long after the waste committed, 
 against the remainder man in fee, for an account of 
 timber which he had cut in collusion with the tenant 
 for life, who was the plaintiff's father. One of the 
 objections to the relief prayed was, that though a 
 bill might have been maintained, for an injunction 
 and account, by the trustees to support contingent 
 remainders, yet it did not follow that a bill could 
 afterwards be brought for an account only ; it was 
 said, that the jurisdiction to decree an account of 
 the value of timber, was only incident and con- 
 comitant to the jurisdiction of granting an injunc- 
 tion, and the case of Jesus College v. Bloom was 
 cited. Lord Hardwicke, however, after admitting 
 that the general run of the cases, was of bills for an 
 injunction, as being most remedial to the party, ob- 
 served, that it did not afford a conclusive argument 
 that a bill for an account could not be maintained 
 without praying an injunction. Speaking of Jesus 
 
 V
 
 210 
 
 INJUNCTJONS TO STAY WASTE. 
 
 Account. College t'. 131ooin, his Lordship observed, ** at the 
 hearing of the cause I doubted (amongst other 
 things) whether such a bill in equity was maintain- 
 able without praying an injunction to stay waste, 
 and it stood over to another day to produce pre- 
 cedents J none were produced, and the bill was dis- 
 missed without costs (a) : but the point was not ab- 
 solutely determined, nor was that the only ground 
 of the dismissal (Z>), but I was of opinion, that at the 
 utmost it was in the discretion of the court ; and if 
 the college had a right, they might clearly bring an 
 action of trover at common law, and it being a 
 matter of small value, I did not think fit to counte- 
 nance such bills in this court after the lease expired." 
 
 His Lordship, however, afterwards proceeded to 
 draw what, it is submitted, is the true line of distinc- 
 tion between these cases ; he said, that the case be- 
 fore him was different from Jesus College v. Bloom 
 in all its circumstances, and particularly as it was 
 admitted that the plaintiff, though greatly damnified, 
 could have 7io remedy at law : that this was the sub- 
 stantial difference. 
 
 There still remains a very important case (c) be- 
 fore Lord Thurlow, in which this distinction was not 
 attended to, and which carries the doctrine of ac- 
 count to a great extent. Li one circumstance indeed 
 it differed from the case of Jesus College v. Bloom, 
 as it was a bill against a tenant for life, who had 
 
 (a) This was not so. Vide the report in Mr. Sanders's edition. 
 {b) These observations are not warranted by the reports of that 
 case. 
 
 (c) Lee V. Alston, 1 Bro. C. C. 194. 3 Bro. C. C. 37. 1 Ves. 
 
 jnn. 78.
 
 INJUNCTIONS TO STAY WASTE. 211 
 
 committed the waste, and who was still in possession ; Account. 
 whereas in Jesus College r. Bloom the tenancy was 
 determined. It might therefore perhaps be con- 
 sidered in some respects as a case more proper for 
 a court of equity. But it resembled that case 
 in the broad fact of the plaintiff having a legal re- 
 medy. Lord Thurlow observed, that although it 
 was an extreme hardship, that parties should be put 
 to such an expense where there was a clear legal 
 remedy : yet where a bill relates to the cutting 
 of timber, it had always been laid down that the 
 plaintiff has a right to the account ; and accordingly 
 a decree was made for an account (a). When the 
 cause afterwards came on upon the Master's report, 
 Lord Thurlow said, " the admission in the answer 
 that some had been wrongfully cut, gives a right to 
 an account.'* And again, " my present opinion is, 
 that if any timber has been cut down from the estate 
 where there was no right to cut any, that circum- 
 stance gives a right to an account. If you can 
 make out, that plaintiff has no right to come here, 
 but ought to be left to law, I will turn round her 
 bill because she has not brought an action : but I 
 thought the circumstance of timber being wrong- 
 fully cut down entitled her to the account ; as in 
 the case of a bailiff; if a man enters upon another's 
 lands and makes money of his property, he will be 
 considered as a bailiff, and must account (*^)." 
 
 The cases are not less contradictory upon the ap- Account 
 
 against as- 
 
 (rt) 1 Bro. C. C. 194-. The author finds, on reference to the ^'^'^• 
 register's book, b. 1782. tbl. 583. that an injunction was not 
 prayed. 
 
 {b) 1 Ves. jun. 78. fi Bro. C. C. 37. 
 
 r 2
 
 212 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Account. 
 
 No account 
 in equity 
 against 
 assets for 
 lesal waste. 
 
 plication of this doctrine, as against the assets of a 
 person deceased, who lias committed waste. Lord 
 Cowper, in tlic Bishop of Winchester v. Knight («), 
 is reported to have said, *' it would be a re})roach to 
 equity to say, where a man has taken my property, 
 as my ore or timber, and disposed of it in his life- 
 time and dies, that in this case I must be without 
 remedy." There is another determination of his 
 Lordship, which shows his opinion that a bill would 
 lie in most cases for an account against the assets of 
 a person who had committed waste. Upon a bill 
 brought against the executors of a jointress to have 
 a satisfaction out of assets for permissive 'waste; he 
 dismissed the bill on the ground of there being no 
 covenant that the jointress should keep the jointured 
 premises in good repair. And he added, that in 
 the common case, without some particular circum- 
 stances, there is no remedy in law or equity for 
 permissive waste after the death of the particular 
 tenant (J)). 
 
 This doctrine of Lord Cowper is, however, laid 
 down too extensively: there is no instance of a de- 
 cree against assets for an account of legal waste. 
 The remedy in this case is by an action at law, as 
 was so ably explained by Lord Mansfield, in the case 
 of Hambly v. Trott (c). *' Where the cause of ac- 
 tion is a tort, or arises ex delicto ; if it is a sort of 
 injury by which the offender acquires no gain to 
 himself at the expense of the sufferer, the action dies 
 
 (a) 1 P. W. 407. 
 
 (b) Turner v. Buck, 22 Vin. Ab. 523. 
 
 (c) Cowp. 376,
 
 INJUNCTIONS TO STAY WASTE. 21S 
 
 with the person : but where, besides the crime, pro- Account. 
 perty is acquired which benefits the testator, there " 
 an action for the value of the property shall survive 
 against the executor. As for instance, the executor 
 shall not be chargeable for the injury done by 
 his testator in cutting down another man's trees ; 
 but for the benefit arising to his testator for the 
 value or sale of the trees, he shall. So far as the 
 tort itself goes, an executor shall not be liable, but 
 so far as the act of the offender is beneficial, his 
 assets ought to be answerable, and his executor shall 
 be charged." 
 
 We may here again notice the justice of Lord Account 
 Hardwicke*s observation in Garth v. Cotton, that the assets in 
 substantial difference is, that a court of equity gives respect of 
 
 , , ^ equitable 
 
 the relief by decree for an account, where the plaintift' waste. 
 can have no remedy at law : and it was upon this 
 principle that the decree in that case was granted 
 against the assets of the remainder man in fee, who 
 had died during the progress of the cause. So also 
 in the case of the Marquis of Lansdowne v. Marchio- 
 ness of Lansdowne («), Sir T. Plumer overruled a 
 demurrer to a bill for an account of equitable xvaste 
 brought against the representatives of the late Mar- 
 quis of Lansdowne, who was tenant for life witliout 
 impeachment of waste. His Honour said that he 
 decided the case upon the broad principle, that 
 where equitable waste has been committed, wliicli 
 never could have been autliorised, the court has 
 jurisdiction to make the representatives of the party 
 committing such waste accountable. Tliat as at law 
 
 (a) 1 Mad. Kcp. IIG.
 
 214 INJUNCTIONS TO STAY WASTE. 
 
 Accowii. If legal waste be committed and the party dies, an 
 action for money had and received lies against his 
 representative, so upon the same principle, in cases 
 of equitable waste the i)arty nuist, through his re- 
 presentatives, refund in respect of the wrong he has 
 done. 
 
 In taking an account in equity of timber cut, the 
 proceeding is different from the remedy at law. In 
 an action the plaintiff would obtain the actual value 
 of the timber J in equity, unless there is some special 
 circumstance to vary the terms of it, the account 
 is given only of the money actually received (a). 
 
 Timber se- 
 vered from 
 the inherit- 
 ance. 
 
 Wherever timber is blown down by accident or 
 cut down by the tort of a stranger, or of the tenant 
 for life, the owner of the first vested estate of in- 
 heritance has the benefit of it (h). Two remark- 
 able instances of windfalls are mentioned on the 
 Cavendish property, and at Welbeck, (which are 
 not in print), where this point was determined. 
 
 If, however, the person entitled to the first estate 
 of inheritance is precluded by his own acts from 
 taking, the produce of the timber must be laid up 
 to the uses of the settlement. Thus if the tim- 
 ber be cut, by that species of collusion which took 
 
 {a) 1 Ves. jun. 82. 
 
 {b) Whitfield v. Bewit, 2 P. W. 240. Bewick v. Whitfield, 
 3 P. W\ 267. Rolt V. Lord Somervillc, 2 Eq. Ab. 759. Garth v. 
 Cotton, 1 Dick. 203.
 
 INJUNCTIONS TO STAY WASTE. 215 
 
 place in Garth v. Cotton, he shall not have the be- Property in 
 
 Timber se- 
 nefit Ot it. ^cred. 
 
 A question of this nature arose in the cause of • 
 
 WilUams v. Duke of Bolton («)• The Duke was 
 tenant for life, with contingent remainders to his 
 children, with remainder to Mrs. Ord for life, with 
 remainder to her first and other sons in tail, with 
 remainder to the Duke in fee. The Duke being 
 thus tenant for life in possession, and having also 
 the first vested estate of inheritance, while the con- 
 tingent estates were in expectancy, cut down tim- 
 ber: and the question was to whom the timber 
 should belong. Lord Thurlow observed, that if 
 any other person, entitled in remainder to an estate 
 of inheritance, had been in being at the time, the 
 law would have thrown the timber on that remain- 
 der : but he was of opinion, that, although the Duke 
 had a vested remainder, yet as it was not competent 
 for him to cut down the timber in respect of his life 
 estate, he could not take advantage (in respect of 
 his estate in remainder) of his ow^n wrong. 
 
 In this case after the waste committed, Mrs. Ord, 
 the second tenant for life, had a son born, who be- 
 came tenant in tail under the limitations : Lord 
 Thurlow was of opinion, that though he took an 
 estate tail, yet that it was subject to be devested by a 
 subsequent estate of a child of the Duke's coming in 
 esse: that the timber was part of the realty; by an 
 accident (as to all but the Duke, whom his Lordship 
 barred), it was severed from the realty : it became 
 in its nature personalty, but yet bound, as far as it 
 
 (a) Reported us to this, 1 Cox, 72. 3 P. W. 368. n.
 
 21(3 INJUNCTIONS TO STAY WASTE. 
 
 Properiij in coulcl l)C SO, to the uses of the realty. His Lordship 
 vnrd.^ *^" directed, tluit until it should be seen whether the 
 
 Duke should have a child, the produce should be 
 
 paid into court with interest, at 4 per cent, to ac- 
 cumulate for the benefit of such person as should 
 appear at the death of the Duke to have title to it, 
 with liberty for any person to apply by petition. 
 
 The Duke having died in lyQ'i, without having 
 had a son, the husband of Mrs. Ord, as administrator 
 of the child (who died shortly after its birth), pre- 
 sented a petition to have the money paid to him : 
 Lord Rosslyn directed a bill to be filed, to which a 
 second son of Mrs. Ord, who was then tenant in tail 
 of the estate, and the Duke's executrix, w ere de- 
 fendants. Lord Rosslyn observed, that where it was a 
 mere casualty there was no equity to take it from the 
 person who had the legal title. When the timber w^as 
 cut, at law, the Duke would have taken, being the 
 first owner of the inheritance, but the court very 
 properly held that he should not by a fraud upon 
 the settlement, which made hhn tenant for life, gain 
 that advantage to himself in his reversion in fee. 
 Considering it as a wrong upon the settlement, it 
 was proper that such part of the property as by the 
 fraud had been taken from the settlement, should be 
 restored to the settlement {a). 
 
 It was contended in a prior case, that the rule that 
 timber blown down or cut belonged to the owner of 
 the first estate of inheritance, was only adopted ej: 
 necessitatCf and did not apply where the whole legal 
 fee was in trustees, who were trustees for all the 
 
 {(t) Powlett V. Duchess of Bolton, 3 Ves. 374.
 
 INJUNCTIONS TO STAY WASTE. 2l7 
 
 different owners of the equitable estate in remainder. Property in 
 Lord Thurlow, however, did not think it necessary ^^^ed.^ ^^' 
 
 to enter into that question. That was a devise of 
 
 real estates to A. and B. and their heirs, to the 
 use of them and their heirs ; in trust to permit C. to 
 receive the rents and profits for life, and after her 
 decease to stand seized of the premises, in trust for 
 the second son of D. and the heirs male of his body, 
 remainder in trust for the third, fourth, and other 
 sons of D. in tail male ; remainder in trust for E. 
 for life without impeachment of waste, remainder to 
 trustees to preserve, &c. remainder to the first and 
 other sons of E. in tail male, &c. with a proviso, 
 that in case there should not be a second son of D. 
 at the time of the death of C. then until such second 
 son should be born, the said trustees should pay 
 the rents and profits to such person as was next in 
 remainder, and should be entitled to receive the 
 same, in case no such son should be born. During 
 the time that the first tenant for life was in pos- 
 session a considerable quantity of timber had been 
 felled, the produce of which was by consent laid out 
 in 3 per cents, without prejudice to the question 
 who should be entitled to it. It was contended, on 
 the authority of Williams v. the Duke of Bolton, 
 that it ought to go to the trustees to accumuhite in 
 their hands until it should be seen whether D. had 
 a second son, who would in that case be entitled 
 to the^value of the timber, as having a prior estate 
 of inheritance to the plaintiff. Lord Thurlow, how- 
 ever, said that in Williams v. the Duke of Bolton 
 he had proceeded entirely on the ground, that tlie 
 wronij; doer should not take advantage of his own
 
 218 
 
 Property in 
 Timber se- 
 vered. 
 
 INJUNCTIONS TO STAY WASTE. 
 
 wrong ; but that there were very particular clauses 
 in this will, upon which the whole turned, especially 
 that clause which provided that until there should 
 be born a second son of D. the trustees should pay 
 the rents and profits to such person as was next in 
 remainder, &c. That the produce of this timber 
 must go where the testator had directed the inter- 
 mediate rents and profits to go. If indeed this 
 quoiisque clause had been out of the way, he should 
 have thought the case would have borne a very dif- 
 ferent consideration («). 
 
 Timber 
 directed to 
 be felled. 
 
 It frequently happens, in estates where the tenant 
 in possession is impeachable for waste, that there is 
 a quantity of timber which is fit to be cut, and in 
 danger of running into decay. A modern (^) prac- 
 tice has arisen in these cases, according to which the 
 court directs the timber to be cut, and the produce 
 to be applied under its direction. This is usually 
 done, by laying out the money in the purchase of 
 lands, to be settled according to the uses to which 
 the estate is limited (<?). In one case, upon the ap- 
 plication of all the parties interested, the money was 
 laid out to defray the expenses of an inclosure (</). 
 
 (flf) Dare v. Hopkins, 2 Cox, 110. 
 (Jb) 16 Ves. 182. 
 
 (c) Mildmay v. Mildmay, 4 Bro. C. C. 76. 
 pole, 17 Ves. 150. 
 
 {d) Osborne v. Osborne, 19 Ves. 423. 
 
 Delapole v. Dela-
 
 INJUNCTIONS TO STAY WASTE. 219 
 
 In Others the produce is left to remain in money, Timber 
 
 n ^^^ /' \ directed to 
 
 and the interest of it is paid to the tenant tor lite {a), ig jelled. 
 
 Where estates are in the possession of infants or ■ 
 
 lunatics, it frequently becomes necessary to cut 
 timber; and in some well timbered estates, where 
 the timber makes a part of the general annual rental. 
 Lord Thurlow declared that it would even be a 
 breach of duty, not to manage it in the usual man- 
 ner. In all cases in which, under the direction of 
 the court, property of one species is applied for the 
 benefit of an infant to property of another nature, an 
 express provision is inserted in the order, that if the 
 infant shall not attain the age at which he will have 
 a disposeable power, the property so converted shall 
 retain its original nature (Ji). 
 
 This provision, as observed by Lord Eldon, in 
 Ware v, Polhill, is only a declaration of the pre- 
 existent right, so to have the property secured •, and 
 if the order were made without it, it would be of 
 course to reform it. And tliough it has been fre- 
 quently said that where a person has been acting 
 bond fide for a lunatic or an infant, without any in- 
 tention to prefer either representative, there is no 
 equity between the representatives after the death 
 of such lunatic or infant (c): yet we shall see that 
 
 (a) Lewis v. Cray, cit. 19 Ves. 423. Osborne v. Osborne, ib. 
 Wickham v. Wickham, Coop. 288. 19 Ves. 419. 
 
 (6) Ashburton c. Ashburton, 6 Ves. 6. Ware v. Polhill, 11 Ves. 
 278. 
 
 (c) Inwood V. Twyne, 2 Eden, 148. Ex-partc Bromficld, 
 
 1 Ves. jun. 453. 3 Bro. C. C. 510. 2 Dick. 762. Ex parte Grim- 
 stone, Amb. 706. Oxcndon v. Lord Compton, 4 Bro. C.C. 231. 
 
 2 Ves. jun. 69.
 
 220 
 
 INJUNCTIONS TO STAY WASTE. 
 
 Timhcr 
 directed to 
 befdlcd. 
 
 Distinction 
 between the 
 estates of 
 infants and 
 lunatics. 
 
 in the case of an infant at least, his property, as be- 
 tween his representatives, will not be considered as 
 converted in consequence of the improper conduct 
 of the guardian, in not providing according to the 
 practice of the court. Though the law remains as 
 it was, where a stranger has cut down the infant's 
 or lunatic's timber tortiously, in which case it will 
 be considered as a windfall, and that the representa- 
 tives have no equity to take it otherwise than it was 
 at the infant's or lunatic's death («). 
 
 The distinction in the application of this doctrine 
 to the property of infants and lunatics has been fully 
 explained in a recent case by Lord Eldon (Z>). *' In 
 the case of an infant," observed his Lordship, " the 
 Lord Chancellor is acting as the Court of Chancery ; 
 not so in lunacy, but under a special separate com- 
 mission from the crown, authorising him to take 
 care of the property, and for the benefit of the 
 lunatic. In the case of the infant it is settled, that 
 as a trustee out of court cannot change the nature 
 of the property, so the court, w^hich is only a trustee, 
 must act as the trustee out of court ; and finding 
 that a change will be for the benefit of the infant, 
 must so deal with it as not to affect the powers of 
 the infant over his property even during his infancy; 
 when he has powers over one species of property 
 and not over the other. It may be for the benefit 
 of an infant in many cases that money should be 
 laid out in land, if he should live to become adult ; 
 but if not, it is a great prejudice to him ; taking 
 
 (a) 1 Ves. jun. 262. 
 
 {b) Ex-parte Phillips, 19 Vcs. 118.
 
 INJUNCTIONS TO STAY WASTE. 221 
 
 away liis dominion by tlie powder of disposition he Timber 
 has over personal property so long before he has iJ^j^j 
 
 it over real estate. The court, therefore, with re- 
 
 ference to his situation, even during infancy, as to 
 his powers over property, works the change not to 
 all intents and purposes, but with this qualification, 
 that if he lives he may take it as real estate ; but 
 without prejudice to his right over it during infancy 
 as personal property. 
 
 " A lunatic stands quite on a different footing, 
 as the instant of a lucid interval he has precisely the 
 same powers of disposition over one species of pro- 
 perty as over the other, in different modes and forms 
 I admit. The Lord Chancellor, acting under a spe- 
 cial commission from the crown, does what is for 
 his benefit ; taking the advice and assistance of the 
 presumptive next of kin and heir, as to the manage- 
 ment of the property that may or may not be their 
 ov/n." 
 
 His Lordship in that case mentioned an instance 
 of a lunatic seised e.v-2)arte paternd of estate A. and 
 ex-parte maternd of estate B. the latter being subject 
 to a mortgage ; and timber cut upon A. having been 
 applied in discharge of a mortgage upon B. it was 
 on a question between the heirs lield, that A. was 
 not to be recouped.
 
 222 INJUNCTIONS TO STAY 
 
 CHAPTER XI. 
 
 Of Injunctions to stay Furprestures and Nuisances. 
 
 The jurisdiction of Courts of Equity in cases of 
 Purpresture and Nuisance, though not very fre- 
 quently exercised, is undoubted. It is founded on 
 the right to restrain the exercise or the erection of 
 that, from whicli irreparable damage to individuals, 
 or great public injury, would ensue («). 
 Purpresture. Purpresture, or more properly Pourpresture, is 
 derived from the French word pourprise, and, accord- 
 ing to Lord Coke, signifies a close or enclosure, that 
 is, when one encroacheth, or makes that several to 
 himself which ought to be common to many (b). It 
 is laid down by all the old writers, that it might be 
 committed either against the king, the lord of the 
 fee, or any other subject (c) ; but in its common 
 acceptation, it is at present understood to mean any 
 encroachment upon the king, either upon part of the 
 demesne lands, or in the highways, rivers, harbours, 
 or streets (d). 
 
 The remedy for this species of injury is either by 
 Information of intrusion at common law, or by In- 
 
 (fl) 3 Atk. 751. Redes. Tr. 117. 
 (5) 2 Inst. 38. 
 
 (c) Skene verbo, Pourpresture, and see the references in Mr. 
 Beames*s note to Glanville, lib. 9. c. 11. p. 239. 
 
 (d) 2 Inst. 38. 272. Spelm. Gloss. Purpresture, Hale de Portibus 
 Maris. Haror. Law Tr. 84.
 
 PURPRESTURES AND NUISANCES. 223 
 
 formation at the suit of the Attorney General in Ofinjunc- 
 
 . , T r» • 1 , • p tions to stay 
 
 equity. In case or a judgment upon an niiorma- p^rpres- 
 tion of intrusion, the erection complained of, whe- '«'■"• 
 ther it were a nuisance or not, was abated : but 
 upon a decree upon an information in equity, if it 
 appeared to be a purpresture, without being at the 
 same time a nuisance, the court might direct an 
 inquiry whether it was most beneficial to the crown 
 to abate the purpresture, or to suffer the erections 
 to remain, and be arrented {a). But where the pur- 
 presture was also a nuisance, this could not be done, 
 for the crown cannot sanction a nuisance : it has no 
 right to use its title to the soil as a nuisance, nor 
 to place upon that soil what will be a nuisance to 
 the crown's subjects, nor give such right to its as- 
 signee (b). There are accordingly several early 
 cases in the Exchequer, some of which are noticed 
 by Lord Hale in his treatise de Portihus Maris, in •, 
 which purprestures, which were also nuisances, had 
 been committed, and decrees were made upon the 
 application either of the attorney general, or the 
 grantees of the crown, to abate them (c). Upon these 
 authorities the Court of Exchequer proceeded in the 
 year 1795, where the defendants had erected certain 
 
 (a) 2 Anst. 606. Redes. Tr. 117. There is an incorrectness 
 in Callis's reading on the Statute of Sewers, 174-. where he states 
 a purpresture to be that species of offence done to the king im- 
 mediately, or his possessions, which if done to a subject would he 
 a nuisance. 
 
 (h) lb. 2 Wils. Ch, Rep. 101. Rex v. Earl Grosvenor, 2 Stark. 
 N. P. C. 511. 
 
 (c) Attorney General v. Philpot, 8 Car. 1. cit. Anst. 607. City 
 of Bristol V. Morgan, Hale de Portibus Maris, Ilarg. Law Tracts, 
 81. Town of Newcastle v. Johnson, ib.
 
 224 INJUNCTIONS TO STAY 
 
 Of'nijiinc- buiUUno's between high and low water mark in Ports- 
 
 tiotlS to staiJ 1 I r I 11 1 1 i 1 
 
 Ptirprcs- mouth IhirboLir, so as both to prevent the boats and 
 lures. vessels from saihng over tlie spot, or mooring there; 
 
 and also to endanger the further damage of the har- 
 bour, by preventing the free current of the water to 
 carry off the mud. A bill was filed, praying that 
 the defendant might be restrained from making any 
 further erections, and that those miglit be abated, 
 and a decree was made accordingly («). The same 
 thing was also done with regard to Bristol Har- 
 bour (Z») ; and an injunction was lately granted, 
 ea: parte on affidavits, to restrain a purpresture and 
 nuisance upon the river Thames (c). 
 
 Upon the same principle is the case mentioned by 
 Lord Hardwicke, of an information by the attorney 
 general to restrain the stopping up a highway behind 
 the Royal Exchange (d). 
 Public The jurisdiction in these cases might have been 
 
 supported on the ground of Public Nuisance^ even 
 thxDugh the acts complained of had not at the same 
 time been purprestures : the interposition in cases 
 merely of public nuisance being by no means a 
 modern branch of equitable jurisdiction (e). There 
 
 (a) Attorney General v. Richards, 2 Anst. 603. 
 
 (b) Bristol Harbour case, cit. 18 Ves. 214. Attorney General 
 V. Forbes, Redes. Tr, 117. 
 
 (c) Attorney General v. Johnson, 1 Wils. Ch. Rep. 87. See 
 tixe case upon the trial Rex v. Earl Grosvenor, 2 Stark, N. P. C. 
 511. 
 
 (d) Amb. 104.. 
 
 (e) A prohibition lay at common law to restrain a public nui- 
 sance. 1 Mod. 76. Jacob Hall's case, ib. S. C. 1 Ventr. 169. 
 Rex V. Betterton, 5 Mod. 14-3. Skin. 625. The Court of King's 
 Bench, however, in a recent case, refused to interpose in this 
 
 NuisancCi
 
 PURPRKSTUES AND NUISANCES. 225 
 
 is a precedent for this in the time of Queen Elizabetli, Oflnjunc- 
 
 -, . ■, , , , . » • tion^ to stay 
 
 which appears to have escaped observation. An in- ]s\Uances. 
 
 formation was filed by the Attorney general in the 
 
 Exchequer to restrain the erection of a pigeon- 
 house («) by a lessee for years of parcel of a manor, 
 of which the reversion was in the queen : the whole 
 court being of opinion that a pigeon-house was a com- 
 mon nuisance, an injunction was granted to restrain 
 the building of it {b). Though the foundation of 
 this determination must be admitted to be erroneous, 
 it is, nevertheless, of importance, as a proof of the 
 antiquity of this jurisdiction. In a modern case be- 
 fore Lord Rosslyn, where a defendant had taken 
 several old houses, which were empty, as temporary 
 warehouses for stowing sugar, which he was intro- 
 
 mode, referring the party complaining to the ordinary remedy 
 by indictment, as it saw no peculiar circumstances to call for this 
 special interference. Rex v. Justices of Dorset, 15 East, 594. 
 
 (fl) It was laid down in this case, that none but the lord of the 
 manor and parson of tiie church could erect a dovc-housc, dc novo; 
 and that by the old law the erection of a dove-house was inquir- 
 able at the leet as a common nuisance. Lord Burleigh (who was 
 at that time Lord High Treasurer) had come into court during 
 the motion, and having observed that Plowden was of that opinion, 
 and that he had heard Montague, C. J. say the same, the injunc- 
 tion was decreed of course, Mr. Barrington, in his observations 
 upon the statute for view of frank pledge, justly considers this 
 doctrine erroneous; and the authorities collected in Vincr, tit. 
 Nuisance, which are very ancient and numerous, are all to the 
 contrary. Hawkins says that a tenant building a dove-house 
 without the lord's licence, may possibly be liable to an action on 
 the case, which opinion soems countenanced by the extract given 
 by Mr. Barrington from the Grand Coutumier: mil iie jicut batir 
 colombier a pied sans conge de son seigneur. 
 (b) Eliz. Bond's case, Mo. '2.^S. 
 
 Q
 
 226 INJUNCTIONS TO STAY 
 
 Oflnjimc- (liicing in such quantities that two of the houses had 
 ^KuLmices!^ actually fallen, and others w^ere in the most imminent 
 
 • danger : Lord llosslyn granted an injunction upon 
 
 petition and affidavit («). 
 
 The author has not been able to find a precedent 
 in which the court has actually interfered to restrain 
 the carrying on of a noxious trade, destructive to 
 the health and comfort of the neighbourhood. In 
 the late case, however, of the Attorney general v. 
 Cleaver (Z>), which w^as a bill filed for this purpose, 
 not the least doubt seems to have been raised as to 
 the jurisdiction. The court refused to interpose for 
 other reasons before the trial, and the cause was 
 compromised before the question could be again 
 discussed. 
 Only to sucli Bills to restrain nuisances must extend to such 
 are^so aUaw ^^^^J ^^^ ^^'^ nuisances at law : the fears of mankind, 
 however reasonable, will not create a nuisance (c). 
 An injunction has accordingly been refused in one 
 case to restrain the building of a house to inoculate 
 for the small pox (r/) ; and in another, to restrain the 
 burning of bricks near the habitations of men (e). 
 
 Determina- The greater part of those acts which are indictable 
 tions at la^v. *■ . /> i • i 
 
 as common nuisances cannot, from their nature, be 
 
 cognizable in a court of equity. It may, how^ever, be 
 
 found useful to notice the determinations at law 
 
 upon such of them, as may by possibility form the 
 
 ! {a) Mayor of London v. Bolt, 5 Ves. 129. 
 \ ib) 18 Ves. 
 
 (c) 3 Atk. 751. 
 
 {d) Barnes v. Baker, Amb. 158. 3 Atk. 751. 
 
 {e) Duke of Grafton v. Hilliard, cit. 18 Ves. 219. Attorney 
 General r. Foundling Hospital, 4 Bro. C. C. 164-. 2 Ves. jun. 42.
 
 PUIIPRESTUUES AND NUISANCES. 2^7 
 
 subject of consideration in a court of equity upon a Qflujunc- 
 suit for an injunction. A brew-house, glass-liouse, Nuisances ^ 
 
 lime-kihi, dye-house, smelting-house, tan-pit, chan- 
 
 •dler's-shop, or swine-sty, if set up in such incon- 
 venient parts of the town as that they incommode 
 the neighbourhood, are common nuisances : so also 
 steeping stinking skins in water, and laying them in 
 the highw^ay {a') ; and in general every thing that 
 causes not only an unwholesome smell, but that 
 renders the enjoyment of life and property uncom- 
 fortable, is a nuisance (b). It appears to have been 
 ruled, that setting up a noxious manufacture in a 
 neighbourhood in which other offensive trades have 
 long been borne with, unless the inconvenience to 
 the public be greatly increased, is not a nuisance (r) ; 
 and also that a person cannot be indicted for con- 
 tinuing a noxious trade, which has been carried on 
 at the same place for nearly fifty years (d). But 
 this has been since overruled, and it appears that no 
 length of time can legalise a public nuisance, al- 
 though it may supply an answer to the action of a 
 private individual [e). 
 
 The erecting or keeping powder-mills and maga- Nuisances 
 zines near a town, is also a nuisance for which an \^^\^^ "^'"* 
 
 (a) 5 Bac. Ab. tit. Nuisance. 1 Hawk. P. C. c. 75. s. 10. 2 Uuss. 
 on Crimes, 428, •129. 
 
 (b) Rex V. Pappineau, Stra. 686. Rex v. White, Burr. 333. 
 
 (c) Rex V, B. Neville, Peake, N.P.C. 91 . cit. 2 Russ. on Crimes, 
 430. 
 
 {d) Rex V. S. Neville, ib. 
 
 (e) Weld V. Hornby, 7 East. 199. Hex v. Cross, 3 Campb. 227. 
 2 Russ. on Crimes, 4-30.
 
 228 
 
 INJUNCTIONS TO STAY 
 
 Rivers. 
 
 Ofltijunc- indictment will lie [a). Another common species 
 ^':NuLIwccs? of nuisance is by obstruction to highways and bridges, 
 
 > — as by digging a ditch, or making a hedge or gate 
 
 across a higliway, or by suffering adjoining ditches 
 to become foul, boughs or trees to hang over, a 
 house adjoining the road or a bridge (h) to become 
 ruinous (c), or by the unauthorised occupation of the 
 street by waggons or stage coaches [d). 
 
 All obstructions in public rivers by w^hich the 
 current is weakened, or the placing timber, or other 
 bulky materials, by which the navigation is impeded, 
 are nuisances (e). 
 
 Lord Hale, in the treatise already referred to, 
 notices the several nuisances which may be com- 
 mitted to ports as follows : tilting or choaking up 
 the port by sinking vessels (jT), or throwing out filth 
 or trash ; decays of wharfs, keys or piers ; leaving 
 anchors without buoys ; building new wiers or en- 
 hancing old ; the straitening of the port by building 
 too far into the w'ater(«'); impeding the mooring 
 
 Harbours. 
 
 Rex V. Cross, cit. sup. Rex 
 5 Bac. Ab. Nuis. A. 2 Russ. 
 
 (rt) Rex V. Taylor, 2 Stra. 1167. 2 Russ. on Crimes, 430. 
 
 (5) Rex V. Watson, 2 Lord Raym, 856. 
 
 (c) 2 Russ. on Crimes, 461. 
 
 {d) Rex V. Russell, 6 East. 427 
 V. Jones, 3 Camb. 230. 
 
 (<r) Rex V. Leech, 6 Mod. 145. 
 on Crimes, 491. 
 
 (^f) But where a vessel has been sunk by accident or misfortune, 
 an indictment cannot be maintained against the owner for not 
 removing it. Rex v. Watts, 2 Esp. N. P. C. 675. 
 
 [g) This is not ipso Jacto a nuisance, unless it be a damage to 
 the port and navigation : in these cases therefore it is a question 
 of fact to be found by a jury whether the building be a nuisance
 
 PURPRESTURES AND NUISANCES. 229 
 
 of ships in the ground adjacent, if it hath been Oflnjunc- 
 
 , 1-1 • ,1 • r -A. -o-,. tions to staii 
 
 antiently used v/ithout paymg any thing lor it ; it it Xuisances. 
 
 sioners or 
 ewers. 
 
 be a new port, Lord Hale says the mooring must be 
 
 permitted upon reasonable amends. Also the towing 
 or hauling of vessels up or down a river or creek to 
 or from a port town ; and the suffering a port or 
 public passage to be filted or stopped, is a nuisance 
 in those who are bound to repair it. 
 
 The Commissioners of Sewers, in the exercise of Commis 
 their duty to repair sea banks and walls, survey g 
 rivers, public streams, ditches, &c. have authority to 
 inquire of all nuisances and offences committed by 
 the stopping of rivers, erecting mills, not repairing 
 banks and bridges, &c. (a). This, however, like all 
 inferior jurisdictions, is subject to the discretionary 
 coercion of the Court of King's Bench (^). It seems 
 also that a species of cognizance has been taken of 
 this subject in equity. In a cause in the duchy 
 court of Lancaster, reported in Callis (c), the defend- 
 ants had by their answer set forth an ordinance or 
 decree of commissioners, founded upon a verdict, di- 
 recting a wear upon the river Wye to be overthrown, 
 and the timber thereof removed; the court, however, 
 was of opinion, that the wear being an ancient wear by 
 prescription and custom, it ought not to have been 
 
 or not. Where the building is below the highwater mark, it is a 
 purpresture, but not necessarily a nuisance. 
 
 (a) 3 Bl. Com. 73. 
 
 {b) lb. 74-. The modern determinations upon this subject are, 
 Yeaw V. Holland, Bl. Rep. 717. Dorc v. Gray, 2 T. R. 358. Rr^x 
 V. Somersetshire Conunissioners of Sewers, 8 T. R. 312. 7 East. 70. 
 9 East. 109. I\Iasters v. Scroggs, 3 M. & S. 447. 
 
 (c) Hall V. Mason, Callis, 262. Ed. 1685.
 
 ^30 
 
 INJUNCTIONS TO STAY 
 
 Of InjiinC' 
 tinns lo stnij 
 Nuisances. 
 
 A 
 
 Whether an 
 information 
 necessary in 
 cases of 
 public 
 nuisance. 
 
 overthrown by the decree; and that the verdict was 
 defective in not stating qiiantOy nor in quA parte, the 
 wear was enhanced above the ancient size. In a recent 
 case, however, tlie Court of Chancery refused to in- 
 terpose, by injunction upon motion, to restrain com- 
 missioners of sewers from removing a float or tumbling 
 bay upon a river, altliougli such removal was stated 
 to be irreparable mischief (a). Lord Eldon observed, 
 that without entering into the question whether there 
 might or might not be cases in which a court of 
 equity would interfere, he thought, upon the answer 
 and affidavits, that after the opportunity which the 
 plaintiff had had of taking a much shorter course, 
 by applying to the King's Bench for a certiorari^ it 
 ought not to interfere in the present case. 
 
 The usual, and perhaps the more correct mode of 
 proceeding in equity in cases of public nuisance, 
 is by information at the suit of the Attorney Ge- 
 neral (b). But it is apprehended that this is by no 
 means absolutely necessary, for, as at law^, a party 
 may have a private satisfaction by civil suit for that 
 which is a public nuisance (c) ; so in equity, if there 
 is a special grievance arising out of the common 
 cause of injury which presses more upon particular 
 
 («) Kerrison v. Sparrow, Coop. 305. 19 Ves. 44-9. There is 
 another case which has not been alluded to, where a demurrer 
 to a bill to be relieved against an order of commissioners was over- 
 ruled. Box V. Allen, 1 Dick. 49. 
 
 {b) Amb. 158. 3 Atk. 751. Redes. Tr. 117. 
 
 (c) Rex V. Dewsnap, 16 East. 196. Callis mentions from the 
 books several cases of assizes of nuisance, tarn (juereiiii quam populo, 
 in v.hich,yo/' the people, the offender was ordered to reform the nui- 
 sance ; to the king he was fined, and the plaintiff, for his own pri- 
 vate wrong, rccovered'his damages, 268, 269.
 
 PURPllESTURES AND NUISANCES. '231 
 
 individuals, than upon others not so immediately Oflnjunc- 
 within the influence of it, it should seem that they XuisanceT^ 
 
 would be entitled to the interference of a court of 
 
 equity for the protection of their private rights. 
 Accordingly no less than three of the above applica- 
 tions, on grounds of public nuisance, were at the suit 
 of private individuals («) ; and though Lord Hard- 
 wicke in one of them noticed the irregularity, it does 
 not appear to have formed a serious objection. In 
 the late case of the Attorney General v. Johnson, 
 the application was by information and bill. 
 
 In the case of Coulson v. White (b), Lord Hard- Private nui- 
 . 1 , , , . sanccs. 
 
 wicke observed, that every common trespass is not 
 
 a foundation for an injunction, where it is only con- 
 tingent and temporary j but that if it continues so 
 long as to become a nuisance, the court interferes, 
 and will grant an injunction. Under this head may 
 be noticed an early case in Gary, where the defend- 
 ant was restrained till the hearing from pulling down 
 a party wall which stood between his house and that 
 of the plaintift*(c). The ordinary instance of this 
 jurisdiction is, where the court interposes to restrain 
 a party from building so near the plaintiff's house 
 as to darken his windows (^). An injunction will 
 
 (a) Barnes v. Baker. Mayor of London v. Bolt. Duke of 
 Grafton v, Hilliard, cit. sup. 
 {b) 3 Atk. 21. 
 
 (c) Bush V. Field, Gary, 129. Vide also Manly v. Hanimet, 
 2 Dick. 488. 
 
 [d) Cherrington v. Abney, 2 Vern. GIG. Duke of Beaufort's case, 
 2 Bro. C. C. 65. Batenian v. Johnson, Fitz. 106. Ryder v. Ben- 
 thara, 1 Ves. 453. Morris v. Lord Berkley's lessees, 2 Ves. 453. 
 Attorney General v. Bcntliam, 1 Dick. 277. Attorney General r. 
 ^ichol, 16 Ves. 338. Lord King i. Bishop of Ely, Trin. Vac. 1819.
 
 232 INJUN'CTiONS TO STAY 
 
 Oflnjitnc- not, it seems, be granted in tliese cases, unless the 
 Nuisances^ windows in question are ancient liglits (a), and the 
 
 act is in violation of some agreement either express 
 
 or implied : nor is every diminution in the value 
 of the premises a ground for the court to inter- 
 pose, nor every species of mischief upon which an 
 action upon the case might be maintained. The 
 foundation of the jurisdiction is that sort of material 
 injury to the comfort of the existence of those who 
 dwell in the neighbouring house, which requires, upon 
 equitable principles, the application of a power to 
 prevent, as well as remedy, the evil (/>). The diver- 
 sion of water-courses, or the pulling down banks, 
 and exposing the plaintiff to inundation, are also 
 nuisances against which a court of equity has inter- 
 posed (c). 
 
 Dctermina- The following are some of the most important 
 tions at law, j , • . -, . . r. , 
 
 determmations at law upon private nuisances oi that 
 
 nature, which are most likely to come under the 
 
 consideration of a court of equity : actions on the 
 
 case for stopping ancient lights, or lights not ancient, 
 
 where it is in violation of some covenant, either 
 
 express or implied, are extremely numerous (r/). 
 
 Presumption The enjoyment of lights with the defendant's ac- 
 
 iiftcr twenty • / \ • i j • • . • n 
 
 years' en- " q^^icscencc [c], IS such decisive presumption or a 
 
 joyment. 
 
 (a) Fishmongers' Company v. East India Company, 1 Dick. 163. 
 
 (b) 1 Dick. 164. 16 Ves. 342. 
 
 (c) IMartin v. Stiles, Mose. 145. Robinson v. Lord Byron, 
 1 Bro. C. C. 588. 2 Cox, 4. 2 Dick. 703. Lane v. Newdigate, 
 10 Ves. 194. Chalk v. Wyatt, 3 Meriv. 688. 
 
 (d) See the old cases referred to, Cora. Dig. Tit. Action on the 
 case lor nuisance. 
 
 (e^ Daniel v. North. 1 1 Last. 372.
 
 PURPRESTURES AND NUISANCES. 233 
 
 right by grant or otherwise, that unless contradicted Oflnjunc- 
 or explained, a jury are always directed to find in jVz'/jVr^crs'!"^ 
 
 favour of it [a). It seems also that a parol licence 
 
 to put up an obstruction to lights, cannot be recalled 
 at pleasure, after it has been executed at the party's 
 expense ib). If an ancient window be raised and 
 enlarged, the owner of the adjoining land cannot 
 lawfully obstruct the passage of light and air to any 
 part of tlie space occupied by the ancient window, 
 although a greater portion of light and air be ad- 
 mitted through the unobstructed part of the enlarged 
 window, than was anciently enjoyed (c). If an ancient 
 window has been completely shut up with brick and 
 mortar above twenty years, it loses its privilege [d) ; 
 and if a building, after having been used for twenty 
 years as a malt-house, is converted into a dwelling- 
 house, it is entitled in its new state only to the same 
 degree of light, which it possessed in its former 
 state {e). So where an old house is pulled down, and 
 a new one built, the lights in the new house must be 
 in the same place, of the same dimensions, and not 
 more in number than in the old house [f). 
 
 The following cases are also noticed by Lord C. Various nui- 
 B. Comyns, as nuisances upon which an action may nances. 
 be maintained : building a house so near another's 
 that the rain falls upon it ; fixing a spout so near 
 
 (a) Lewis v. Price, 2 Serjt. Wms. Saunders, 175. Dougal u. 
 Wilson, ib. Darwin v. Upton, ib. 
 
 (6) Winter r. Brockwell, 8 East. 308. 
 (c) Cliancller v. Tbompson, 3 Campb. 80. 
 {d) Lawrence v. Obee, ib. o\\. 
 (<r) Martin v. Goble, 1 Campb. 322. 
 {f) Cherriniiton r. Abncy, 2 "\''crn. 616.
 
 234 
 
 INUNCTIONS TO STAY 
 
 Ferry or 
 market. 
 
 Oflnjunc' another's house, that the rain falls down and injures 
 NuLllcls^ tlic foundations of it ; digging a pit so near anotlier's 
 
 land that it fall into it ; obstructing water in various 
 
 ways ; erecting any thing offensive, as a swine-sty, 
 lime-kiln, dye-house, tallow-furnace, privy, brew- 
 house, tan-pit, smelting-house, smith's forge, &c. so 
 near another's house as to injure it materially. 
 
 It is also a species of nuisance to erect a ferry 
 or market, so near as to prejudice an ancient ferry 
 or market (a). In a case before Lord Hardwicke, 
 an injunction was moved for, before answer, to 
 restrain the defendants from using ferry-boats to 
 the prejudice of the plaintiffs, whose right to the 
 sole use of the ferry had been established by a 
 decree : Lord Hardwicke w^as of opinion that the 
 record was a sufficient foundation to grant an in- 
 junction before answer ; but as it was not shown to 
 his satisfaction upon the affidavits, that the plaintiff 
 had kept up a sufficient number of ferry-boats to 
 carry passengers, the motion w^as. refused (^) ; but 
 in a case where the right had not been established. 
 Lord Hardwicke, with great clearness, refused to 
 interpose to stay the use of a market or ferry (c). 
 Li the case of Churchman r. Tunstal, where a bill 
 was filed by the tenant of an ancient ferry to sup- 
 press a new one, and to obtain an injunction against 
 renewing it, the court dismissed the bill (d). This 
 determination, which was during the usurpation, 
 proceeded in a great measure upon the claim being 
 
 (a) Com. Dig. ub. sup. Yard v. Ford, 2 Saund. 171. 
 {b) Anon. 1 Ves. 4<76. 
 (c) Anon. 2 Ves. 41 1. 
 (rf) Hard. 162.
 
 PURPRESTURES AND NUISANCES. 235 
 
 considered as a monopoly, the plaintiff being a lessee Oflnjunc- 
 of the crown : another bill was filed for the same Xulsancet^ 
 
 matter after the Restoration, when Hale was C. B., • 
 
 upon which the court decreed that the new ferry 
 should be suppressed (a). 
 
 Where the court is satisfied that the matter com- whether the 
 plained of is not a nuisance, the injunction is im- ^o^rt will 
 
 ■^ enjoin with- 
 
 mediately refused or dissolved. It has also been out trial. 
 said, that there is no instance of the coiu't holding 
 it a nuisance, and therefore enjoining it "without 
 trial (J)). This proposition, however, it is submitted, 
 is laid down too extensively ; for though some orders 
 of Lord Jeffries, who, on petition, restrained persons 
 from proceeding in buildings which would intercept 
 the prospect from Gray's Inn Gardens, may not be 
 considered as authorities (c), yet in all the cases 
 cited from Lord Hale, and in the modern decisions in 
 the Exchequer, which, although purprestures, were 
 also nuisances, the decrees were made without any 
 trial. Lord Hale also, in another part of the treatise, 
 in enumerating the various nuisances which may be 
 committed to harbours, notices but one in which a 
 trial is necessary, and this not on the ground of any 
 want of jurisdiction in the court to restrain a nui- 
 sance in general without a previous verdict, but be- 
 cause in that particular case, (viz. the straitening a 
 port or harbour by building too far into the water), 
 it is a question of fact, whether the matter com- 
 plained of is or is not a nuisance ; for, as he observes, 
 in many cases it is an advantage to the port to keep 
 
 (a) Minute Book, 1662, fol. 181. cit. 2 Anst. 608. 
 {b) 18 Ves. 220. 
 (c) 2 Vcs. 451.
 
 236 INJUNCTIONS TO STAY 
 
 OfJnjiinc- the sea-water from diffusing at large. As the matter 
 
 lions to stau ^ • ^ n ■ .^\ c a. • j- ^ 
 
 Nuisances. compUiincd ot IS therefore not tpsojacto a nuisance, 
 but may be so, according to circumstances, it be- 
 comes necessary to ascertain those circumstances by 
 verdict ; but where it is in itself a nuisance, the 
 court (if there is sufficient evidence of its existence) 
 is competent to restrain it without a verdict. There 
 is a similar distinction noticed in the argument in 
 Yard v. Ford, in Saunders ; and in a passage from 
 Fitz-Herbert's Natura Brevium there cited. It is 
 there said, that if a market be on the same day, it 
 shall be intended a nuisance ; but if it be on an- 
 other day, it shall not be so intended, and therefore 
 it shall be put in issue whether it be a nuisance or 
 not(«). 
 
 The above case, from Moore, of the Pigeon-house, 
 is also another instance in which the court restrained 
 without a previous trial. 
 In what cases Whatever may be the actual jurisdiction upon this 
 
 the court • . •- • i • i o • 
 
 will enjoin point, it IS, liowever, certain that courts oi equity 
 till trial. are at present extremely unwilling to interpose with- 
 out a trial at law ; a question therefore has always 
 arisen in these cases, whether the court will grant 
 or continue an injunction till the trial. Where the 
 alleged nuisance consists in the exercise of a manu- 
 facture, the court, upon the same principle upon 
 w^hich it feels so much reluctance to restrain the 
 working of mines and collieries, would require the 
 fact of its being a nuisance to be first clearly esta- 
 blished at law : accordingly, in the above-noticed 
 case of the Attorney General r. Cleaver, the court 
 
 (fl) Saund. 17-i.
 
 PURPRESTURES AND NUISANCES. 2S7 
 
 refused to interfere, partly because there had been Oflnjunc- 
 laches in the relators, and partly on accoinit of the ^rj^jgances. 
 
 inconvenience of stopping a large trading concern, ■ 
 
 in which capital to a great amount had been em- 
 barked. In the Attorney General v. Douglity, Lord 
 Hardvvicke refused to interfere, before answer, to 
 stay buildings which would intercept the prospect 
 from Gray's Inn Gardens ; and the same has been 
 done in other cases (a). Where a party has been 
 guilty of great laches and connivance, in suffering 
 another to erect a nuisance ; the court has not only 
 refused to interpose against the erection of that nui- 
 sance, but has also granted injunctions to restrain 
 actions brought at law for the nuisance ; for as every 
 continuance of a nuisance is a fresh nuisance, the 
 plaintiff would be perpetually liable to actions, which 
 would be hard, after having been encouraged by the 
 party himself (^). 
 
 In a plai?! case of mdsance^ however, as observed 
 by Lord Hardwicke, the court will interfere upon 
 affidavit, certificate, and notice, and will not suffer 
 the nuisance to go on, to the prejudice of the party 
 in the mean time (c) ; and we have seen, that in a 
 pressing case, Lord Rosslyn even interfered upon 
 petition. The result of all the cases seems to be, 
 that though the court is in general averse to inter- 
 fering before a trial, yet if a case of nuisance is 
 clearly made out upon affidavit, it will nevertheless 
 be granted or continued until such trial shall have 
 
 &' 
 
 (a) Batcnian v. Johnson, Fitzg. 106. Ryder v. Bcntliani, sup. 
 (6) Anon. 2 Eq. Ab. 522. Short v. Taylor, cit. ib. 
 (f) 2 Ves. 4.53. 2 Dick. 488.
 
 238 INJUNCTIONS TO STAY 
 
 Qfhijiinc- been had. In the case ah'eady noticed of the At- 
 NuiZc!^!^ torney General v. Johnson, Lord Eldon refused to 
 
 dissolve the injunction before the trial, altliough 
 
 there were affidavits on the part of the defendants, 
 stating that the act complained of was beneficial to 
 the navigation. 
 Where court Xhe court, in those instances in which it refused 
 
 licis inter- 
 
 posed before to enjoin, will, however, take care that no delay 
 trial, It will gj^^ji ^^j^g place in proceeding to trial {a). Tliere is 
 that there is a singular note in Vesey (b), of a motion for liberty 
 e ay. ^^ re-erect a nuisance, and to be quieted in the en- 
 joyment of it until the hearing. Lord Hardwicke 
 said that he had known several of these motions, 
 but hardly ever knew one granted, by giving express 
 liberty to re-erect a thing pulled down : that if a 
 house was built on what was insisted to be the high- 
 way, and that was pulled down, the court would 
 certainly not give liberty to re-erect that building. 
 His lordship said, that he could not grant the in- 
 junction ; but the utmost he could do was to put it 
 in a speedy method of trial. 
 No objection It is no objection to the granting an injunction, 
 the^^iTunc? ^hat the plaintiff has commenced an action at law ; 
 tion, that an ^j^ q^iq instance where this was the case, it was 
 action has m ^ -, • • •£• 
 
 been com- offered to discontinue the action it necessary, to 
 
 menced at entitle the parties to the injunction, but Lord Eldon 
 held it immaterial (c). 
 
 (fl) Attorney General v. Cleaver, sup. 
 
 {h) Anon. 2 Ves. 193. S. C. 3 Atk. 726. nom. Birch v. Holt. 
 
 (c) Attorney General v. Nichol, 3 Meriv. 687.
 
 INFRINGEMENT OF PATENTS. 239 
 
 Infr'mgement 
 of Patents. 
 
 CHAPTER XII. 
 
 Of Injunctions to restrain Infringement of Patents. 
 
 The prerogative of granting patents for monopo- 
 lies, which was at all times a grievous oppression to 
 the subject, had been so flagrantly abused by the 
 Duke of Buckingham (and as it seems not without the 
 connivance of the king(«)), that in the year 1621 
 proceedings were instituted in parliament against 
 the principal monopolists, and the favourite was 
 compelled to abandon his creatures to justice [b). 
 Two years afterwards an act of parliament was passed 
 for their utter abolition (c), which is said to have 
 been in a great measure prepared by Sir E. Coke, 
 who was chairman of the committee of the House of 
 Commons, to which the bill was referred, and who 
 has elaborately commented upon it in his third In- 
 stitute id). 
 
 It was declared by that act, that all monopolies Statute 
 
 . 21 Jac. 1. 
 
 and all commissions, grants, licences, charters, and g. 3. 
 
 letters patents for the sole buying, selling, making, 
 
 working, or using of any thing within this realm, or 
 
 (a) Rapin, sub anno 1621. 
 
 {b) Vide the proceedings against Sir Giles Mompesson and Sir 
 Francis Mitchell (the Sir Giles Overreach and Justice Greedy 
 of Massinger). 2 How. St. Tr. 1119. 1131. 1 Cobb. Pari. Hist. 
 1198. 121-2. 
 
 (c) 21 Jac. 1. c. 3. 
 
 {(l) 3 Inst. 182. Dav. on Patents, 7.
 
 240 INJUNCTIONS TO RESTRAIN 
 
 Infringement thc dominion of Wales, or of any other monopolies ; 
 
 ^ or of power, liberty, or faculty to dispense with any 
 
 others j or to give licence or toleration to do, use, 
 or exercise any thing against the tenor or purport 
 of any law or statute : or to give or make any war- 
 rant for any such dispensation, licence, or toleration 
 to be had or made ; or to agree or compound with 
 any others for any penalty or forfeiture limited by 
 any statute ; or of any grant or promise of the be- 
 nefit, profit, or commodity of any forfeiture, penalty, 
 or sum of money due by any statute before judg- 
 ment thereupon had ; and all proclamations, inhi- 
 bitions, restraints, warrants of assistance, and all 
 other matters anyd things whatsoever, any w^ay tend- 
 ing to the instituting, erecting, strengthening, fur- 
 thering, or countenancing of the same, or any of 
 them ; are altogether contrary to the laws of this 
 realm, and so are and shall be utterly void and of 
 none effect, and in no wise to be put in use or 
 execution. 
 
 By the sixth section a power is reserved to the 
 king to grant letters patent and grants of privilege 
 for the term of fourteen years or under, for the 
 sole working or making of any manner of new 
 manufacture within this realm, to the true and first 
 inventor and inventors of such manufactures, which 
 others at the time of making such letters patents and 
 grants shall not use, so as they be not contrary to 
 the law, nor mischievous to the state, by raising 
 prices of commodities at home, or hurt of trade, or 
 generally inconvenient (a) . 
 
 (a) Notwithstanding this act of parliament, Charles I. made no 
 scruple of granting a great number of patents for monopolies of
 
 INFRIxN'GEMENT OF PATENTS. ^M 
 
 No provision was made by this act to secure a Infringement 
 
 description, by wliicli the piibHc might be enabled j{ "__'^_!^^i_ 
 
 to mannfacture the new invented article at the ex- Specification 
 piration of the term granted to the patentee {a). It b^/tije'^^^t^ 
 was not till towards the latter end of the reign of 
 Queen Anne that any such provision was thought 
 of, when it was deemed advisable by the law officers 
 of the crown, to insert a proviso in the patent, that a 
 specification of it should be enrolled in Chancery, 
 within a given period from the time of its having 
 passed the great seal (J)). 
 
 The time allowed for enrolling the specification Time re- 
 was varied at different periods ; having at first enrolling 
 usually been four months from the day of the date specification. 
 of the letters patent, but when Lord Alvanley was 
 Attorney -general this time was reduced to one 
 calendar month (c). It is at present usually two 
 months. 
 
 It is however, in matters of importance, fre- 
 quently extended ; and if the inventor makes an 
 
 various kinds, by which, as observes Lord Clarendon, unjust pro- 
 jects of all kinds, many ridiculous, many scandalous, and all very 
 grievous, were set on foot. — Hist. vol. 1. 53. Rapin, anno 1629. 
 
 {a) It is very remarkable how common the error appears to 
 have been, not only at the bar but on the bench, that the enrol- 
 ment of a specification was a condition required by the act of par- 
 hament. — Dav. on Pat. 67. 
 
 {b) Dav. on Pat. 8. 
 
 (c) Dav. on Patents, 10. It has been holden, upon the con- 
 struction of the usual proviso, that the month does not begin to 
 run till the day after the date of the patent ; and that accordingly, 
 where the patent was dated the 10th of May, the specification was 
 enrolled in time on the 10th of June following. — Watson r. Pears, 
 2 Campb. 2M. 
 
 R
 
 242 
 
 INJUNCTIONS TO UKSTRAIN 
 
 Infringement affidavit that it is his intention to apply for patents 
 
 of Patents. r- o j1 1 1 T 1 \ •, ■ ^ A 11 
 
 Enrolment 
 cannot be 
 dispensed 
 with. 
 
 for ScothuiJ and Ireland, it is usual to allow six 
 months [a). 
 
 The enrolment of a patent cannot be dispensed 
 with ; and if it has once passed the great seal, the 
 date of the patent can neither be altered, nor can 
 the time for the enrolment be extended without an 
 act of parliament (^). 
 
 What the 
 subject of a 
 patent. 
 
 The doctrine upon the subject of patents will be 
 found to be most conveniently arranged under the 
 two following heads : — 1st, What species of manu- 
 facture is the proper subject of a patent : and, 2dly, 
 What sort of description is required in the spe- 
 cification. 
 
 1st. What is the subject of a patent. Patents 
 were formerly considered as injurious monopolies, 
 and were construed by the courts with great strict- 
 ness. But now, when a more liberal and just view 
 of the subject prevails, they are considered as ad- 
 vantageous to the public, by holding out encourage- 
 ments to ingenious men to disclose their inventions. 
 Lord Eldon has repeatedly represented them as 
 bargains between the inventors and the public, to 
 be judged of on the principles of keeping good 
 faith, by making a fair disclosure of the invention, 
 and to be construed as other bargains (c). 
 
 (a) Dav. on Pat. 10. 
 
 (6) Exfarte Beck, 1 Bro. C. C. 578. Ex 'parte Koops, 6 Ves, 
 599. 
 
 (c) Cartwright u. Arnott, cit. 11 East, 107. 14- Ves. 136.
 
 INFRINGEMENT OF PATENTS. 24<S 
 
 The only term used in the statute is that of Ma- Infringement 
 niifacture^ which was much approved of by Mr. ^-^ "'^" '^' 
 Justice Heath, as precluding all nice refinement ; it 
 gives us to understand the reason of the proviso, 
 that it was introduced for the benefit of trade, and 
 that the subject ought to be that which is vendible, 
 otherwise it cannot be a manufacture (^/). In the 
 same case it was observed by Lord C. J. Eyre, that 
 the word " manufacture" was of extensive significa- 
 tion ; that it applied not only to things made, but to 
 the practice of making ; to principles carried into 
 practice in a new manner, to new results of princi- 
 ples carried into practice. Under things made he 
 classed new compositions of things, such as manu- 
 factures in the most ordinary sense of the word ; 
 secondly, all mechanical inventions, whether made 
 to produce old or new effects. Under the practice 
 of mailing he classed all new artificial manners of 
 operating with the hand, or with instruments in 
 common use, new processes in any art producing 
 effects useful to the public. He observed, that 
 when the effect produced is some new substance or 
 composition of things, it should seem that the privi- 
 lege of the sole working or making ought to be for 
 such new substance or composition, without regard 
 to the mechanism or process by which it has been 
 produced, which, though perhaps also new, will be 
 only useful as producing the new substance. 
 
 The case from which these observations are taken As to the 
 
 £■ 1 • ^^ords me- 
 
 arose upon the patent obtanied by Mr. Vvatt, tor Ins tk^d and 
 celebrated improvements upon the steam engine, prmciplc. 
 
 (a) 1 H. B. 4-82, 
 
 II 'J
 
 244 INJUNCTIONS TO IIKSTIIAIN 
 
 Infriticrcmcnt and cxcitcil vciy considerable discussion both in the 
 ^ "^^'"^■^- courts of C. B. and K. B. The patent granted to 
 James Watt, the sole benefit and advantage of 
 making, exercising, and vending a certain invention, 
 being a method by him invented, of lessening the 
 consumption of steam and fuel in fire engines. The 
 specification began as follows : — ** My method of les- 
 sening the consumption of steam, and consequently 
 fuel, in fire engines, consists of the following 'prin- 
 ciples,^* The specification then proceeded to state 
 the addition of certain vessels called condensers, 
 with some rules for their construction and applica- 
 tion. The great question that was argued was 
 upon the objection, that a patent could not be 
 granted for a method or principle^ but that it must 
 be for a formed or organised machine, instrument, or 
 manufacture. The Court of Common Pleas were 
 equally divided upon the subject, Mr. J. Rooke 
 and the Lord C. J. Eyre, being in favour of the 
 patent, and Mr. J. Buller and Mr. J. Heath against 
 it(«). The question soon afterwards was brought 
 in another action upon the same patent under the 
 consideration of the Court of King's Bench, the 
 judges of which were unanimously of opinion in 
 favour of the patent {V), 
 
 It seems in this case to have been agreed by 
 the judges on both sides of the question, that 
 there could not be a patent for a mere principle or 
 method; but those judges who were in favour of the 
 validity of the patent, founded their opinion upon 
 
 (rt) Boulton V. Bull, 2 H. B. 463. 
 
 (6) Hornblower v. Boulton, 8 T. R. 95.
 
 INFRINGEMENT OF PATENTS. 2-15 
 
 the ground that for a principle so far embodied and Infr'mgemeiit 
 
 connected with corporeal substances, as to be in a "•_ ^^^^__ 
 
 condition to act and to produce effects in any art, 
 trade, mystery, or manual occupation, there might 
 be a patent. That there miglit be a patent for a 
 new method of manufacturing or conducting che- 
 mical processes, or of working machinery so as to 
 produce new and useful effects. That in the case 
 before them, it was tliat for which the patent was 
 granted ; that it was not that the patentee had con- 
 ceived an abstract notion that the consumption of 
 steam in fire engines might be lessened, but that he 
 had discovered a practical manner of doing it, and 
 for that practical manner of doing it, had taken his 
 patent. So in the case in the King's Bench, Mr. 
 J. Grose observed, " I am inclined to think, that a 
 patent cannot be granted for a mere principle ; but I 
 think, that although in words, the privilege granted 
 is to exercise a method of making or doing any thing, 
 yet if that is to be made or done by a manufacture^ 
 and the mode of making that manufacture is de- 
 scribed, it then becomes in effect (by whatever 
 name it may be called), not a patent for a mere prin- 
 ciple, but for a manufacture ; for the thing so made, 
 and not merely for the principle upon which it is 
 made." 
 
 The construction of the word manufacture was ex- 
 plained in a recent case, in the following luminous 
 manner, by Lord C. J. Abbott. ** The word 'manufac- 
 ture* has been generally understood to denote either 
 a thing made, which is useful for its own sake, and 
 vendible as such, as a medicine, a stove, a telescope,
 
 246 INJUNCTIONS TO RESTRAIN 
 
 f 
 
 Infringement and many others, or to mean an engine or instrii- 
 
 qf Patents . , ^ ^ • • , . . 
 
 l_ ment, or some part oi an engine 'or instrument, to 
 
 be employed, either in the making of some pre- 
 viously known article, or in some other useful pur- 
 pose, as a stocking-frame, or a steam-engine for 
 raising water from mines. Or it may perhaps ex- 
 tend also to a new process to be carried on by 
 known implements or elements, acting upon known 
 substances, and ultimately producing some other 
 known substance, but producing it in a cheaper or 
 more expeditious manner, or of a better or more 
 useful kind. But no merely philosophical or ab- 
 stract principle can answer to the word manufac- 
 ture. Something of a corporeal and substantial 
 nature, something that can be made by man from 
 the matters subjected to his art and skill, or at the 
 least, some new mode of employing practically his 
 art and skill is requisite to satisfy this word. A 
 person, therefore, who applies to the crown for a 
 patent may represent himself to be the inventor of 
 some new thing, or of some new engine or in- 
 strument. And in the latter case he may represent 
 himself to be the inventor of a new method of ac- 
 complishing that object, which is to be accomplished 
 by his new engine or instrument, as v/as the case of 
 Watt's patent, in which he represented himself to be 
 the inventor of a new method of lessening the con- 
 sumption of steam and fuel in fire engines ; and by 
 his specification he described certain parts to be 
 used in the construction of fire engines. Or sup- 
 posing a new process to be the lawful subject of a 
 patent, he may represent himself to be the inventor
 
 INFRINGEMENT OF PATENTS. 247 
 
 of a new process, in which case it should seem that Infringement 
 
 the word * method' maybe properly used as syi.ony- ;^ ^ 
 
 mous with process (a)." 
 
 The expression used in the statute is new ma- Must be a 
 
 ^ . nctv manu- 
 
 nufacture. The grantee of the patent must there- facture. 
 fore be the inventor. In an action brought by IMr. 
 Tennant for an infringement of his patent for a 
 bleaching liquor, a bleacher near Nottingham de- 
 posed, on the part of the defendant, that he had 
 used the same means of preparing his bleaching 
 liquor for five or six years prior to the date of the 
 patent, and that the secret had been also known to 
 his two partners and two servants, who were em- 
 ployed in preparing it ; upon which the plaintiff was 
 nonsuited (b). And it has been determined that the 
 previous sale of the article, though by the inventor 
 only, will make the patent void (c). 
 
 It appears, however, that if it has not been pre- Manufacture 
 
 1 . , . n ■ "ill be con- 
 
 viously brought into use, the circumstance oi its sidered new, 
 liavino: been Imoxvn, will not be a sufficient objection, though 
 
 ^ ' -' knoicn be- 
 
 Therefore, in the case on Dolland's object-glasses, fore, if not 
 the question was, whether Dolland or Hall was the ^^ ' 
 first and true inventor, within the meaning of the 
 statute. Hall had first made the discovery in the 
 closet, but as Dolland had been the first to make 
 the invention public, his patent was confirmed (d). 
 
 The words of the statute are new manufactures A^«is 
 'within the realm: it was therefore decided, in one I^nown 
 of the first cases after the passing of the act, that ^ibroad. 
 
 (a) 2 B. & A. 349. 
 {b) Tennant's case, Dav. on Pat. 4^29. 
 (c) Wood V. Zimmer, 1 Holt, N. P. C 58. 
 (rf) Cit. 2 H. B. 487.
 
 248 INJUNCTIONS TO RESTRAIN 
 
 Liftin'rement tlioiigh the invention may liave been practised be- 
 ^^"^ ''"^^- yond sea before, it is sufficient if it be new in 
 
 England (^/). 
 May be for j^ -g j^^ objection to a mechanical or chemical 
 
 a compound -^ 
 
 article. discovery, that the articles of which it is composed 
 
 were known and in use before, provided the com- 
 pound article is new : but the patent must be for the 
 compound article. - A new combination of old ma- 
 terials, as observed by Lord EUenborough, so as to 
 produce a new effect, is the subject of a patent. It 
 is the adoption of these materials to the execution 
 of any particular purpose that constitutes the in- 
 vention : and if the application of them be new, if 
 the combination in its nature be essentially new ; if 
 it be productive of a new end and beneficial to the 
 public, it is sufficient (^). But if the subject matter 
 when compounded is not new, it will be no answer 
 to the objection to it, that it is of better texture or 
 finer quality than the one formerly produced (c). 
 For an ad- An addition to an invention already known may 
 invention^" also be the Subject of a patent. This was at first 
 already denied (fi?). It was said, that if the substance was 
 
 in esse before, and a new addition was made to it, 
 though that addition made the former more profit- 
 able ; yet that it was not a new manufacture in law : 
 that it was much easier to add than to invent, and 
 that this was but to put a new button on an old 
 coat. It has, however, been acknowledged, ever 
 
 (fl) Edgeberry u. Stephens, 2 Salk. 447. 
 {])) Huddart t'. Grimshaw, Dav. on Pat, 278, 
 (c) Rex V. Else, 11 East, 109. n. 
 (rf) Bircot's case, 2" Inst. 184,
 
 INFRINGEMENT OF PATENTS. 24^ 
 
 since the case of Morris v. Branson («), that there Infringement 
 may be a patent for an addition only. 
 
 Care must be taken in these cases that the patent Patent must 
 is not too extensive. A patent in one case was de- "^tensive*' 
 termined to be void, because it extended to the 
 whole watch, and the invention was of a particular 
 movement only(/;). In another case a patent for 
 an " improved mode of lighting cities, towns, and 
 villages,'* was holden void, as it ought to have been , 
 
 for an "improved street lamp*' only(c). 
 
 ^2dly, What is that species of description which is 
 required to be enrolled in the specification, as a 
 compliance with the condition usually contained in 
 the patent. 
 
 The language of the patent may be explained and Language of 
 reduced to certainty by the specification j but the pa- explained by 
 
 tent must not represent the party to be the inventor ^^*^ f^peci- 
 
 ^ . . . ncation. 
 
 or one thing, and the specification show him to be the 
 
 inventor of another; because perhaps if he had repre- 
 sented himself as the inventor of that other, it might 
 have been well known that the thing was of no use, or 
 was in common use, and he miglit not have obtained 
 a grant as the inventor of it [cl). The Court of King's 
 
 (a) East. 1776, cit. 2 H. Bl. 189. Vide also ex parte Fox, 
 1 V. & B. 67. 
 
 (i) Jessop's case, cit. 2 H. Bl. 489. 
 
 (c) Lord Cochrane v. Smethurst, 1 Stark. 205. Vide also 
 Hill V. Thompson, 1 Holt, N. P. C. 636. 
 
 {H) Per Abbott, C. .1. 2 B. & A. 351.
 
 250 INJUNCTIONS TO RESTRAIN 
 
 Infrmgement Bciicli wcrc accordingly of opinion, that a patent was 
 of atcnis. ^^ij wliicli was takcn out for " a new or improved 
 method of drying and preparing malt j" but the spe- 
 cification stated the patentee to be the inventor, not 
 of a method of drying or preparing it, but of a me- 
 thod of giving to it, when previously prepared, some 
 qualities which it did not possess before, or which it 
 possessed only in a very slight degree ; namely, the 
 qualities of being soluble in water, and colouring 
 the liquor in which it should be dissolved (a). In 
 an early case upon this subject a patent had been 
 granted for a new manufacture of lace ; the speci- 
 fication went generally to the invention of mixing 
 silk and cotton thread upon a frame ; it was proved 
 that silk and cotton thread had been mixed upon 
 the same frame prior to the patent, although too 
 coarse for lace. The patent, not being for any par- 
 ticular mode of mixing, but for making lace of silk 
 and cotton thread mixed, was declared void (Ji). 
 
 In a case before Lord Ellenborough, upon a scire 
 facias to repeal a patent for a manufacture of hair 
 brushes, it appeared that they were described in the 
 patent as tai^ering brushes ; but the specification 
 merely directed a mode of manufacture by which 
 the bristles would be of unequal lengths. His Lord- 
 ship considering the description defective, a verdict 
 was found for the crown, and the Court of King's 
 Bench afterwards refused a rule nisi for a new 
 trial (c). 
 
 (a) Rex V. WHieeler, 2 B. & A. 345. 
 
 (6) Rex V. Else, 11 East, 109. n. 
 
 (c) Rex v. Metcalf, 2 Stark. N. P. C. 249.
 
 INFRINGEMENT OF PATENTS. 251 
 
 Lord Ellenboroiigh in this case seemed tc be of Infringement 
 opinion, that if a term has had a meaning different ^ ^^^^"^^- 
 from the ordinary sense annexed to it by the usage Term may 
 of trade, it may be received in its perverted sense. different"^ ^ 
 
 A patentee, in order to entitle himself to the^be- sense from 
 nefit of his patent, should specify his invention in one^Yt'"^^^ 
 such a way, that others may be able to collect from agreeable to 
 1 1 r- !• 1 ■ ^ c II'- *^^ usage of 
 
 it, the mode or making the article for which it is the trade. 
 
 granted. The clearness of the specification must Specification 
 be according to the subject matter of the invention : ckar'if'intel- 
 it is addressed to persons in the profession, having ligible to 
 
 ^ persons con- 
 
 skill in the subject, not to men or ignorance. JJut versant with 
 it must be such that mechanical men of common ^^^^ subject. 
 understanding can comprehend it, so that they may 
 be able to make the article by the specification, 
 without any experiments or any new inventions or 
 additions of their own («). 
 
 A concealment in a specification of any material ^'"'(^ if con- 
 
 ,1 n ^ ^ ^ • - CCahllcnt. 
 
 Circumstance, though not iraudulent, but arising 
 entirely from inadvertence, will vitiate the specifica- 
 tion. Thus in an action before Lord Mansfield for 
 infringing a patent for steel trusses, it appeared that 
 the patentee, in tempering the steel, rubbed it with 
 tallow, which was of some use in the operation, and 
 because this was omitted, the specification was held 
 void (h). The patent of Sir R. Arkwright was, 
 upon the ground of a wilful concealment in the spe- 
 cification, declared void upon a scire facias (c). 
 
 If articles are unnecessarily inserted into the If articles 
 
 unneces- 
 sarily intro- 
 
 (a) Arkwright u. Nightingale- Dav. on Pat. 56. 
 
 {b) Liardet u. Johnson, cit. 1 T. 11. 608. Bull. N. P. 76. 
 
 (c) Rex V. Arkwright, Uav. on Pat. 61.
 
 252 
 
 INJUNCTIONS TO llEbTKAIN 
 
 Infringement 
 of ralents. 
 
 Specification 
 must point 
 out the most 
 beneficial 
 mode of 
 making the 
 manu- 
 facture. 
 
 specification, with an intention to puzzle, or which 
 arc not useful for the purpose of the patent, it will 
 vitiate it (a). Therefore, where the specification 
 directed to add *' half the weight of sea salt, or sal 
 gem, or fossil salt, or any marine salt,'* and it 
 ap})eared that *' fossil salt" was a generic term, in- 
 cluding " sal gem,'* as well as every other species of 
 fossil salt ; and that " sal gem " was the only one 
 which could be applied to this purpose, the patent 
 was held void (b). 
 
 If a patentee professes in the specification to pro- 
 duce three things, and fails in any one, the patent 
 will be vitiated (c). 
 
 The specification must also be such, as to enable 
 a workman to construct the article to the extent 
 most beneficial within the knowledge of the patentee 
 at the time : " for a patentee," as observed by Lord 
 C. J. Gibbs {d), " who has invented a machine useful 
 to the public, and can construct it in one way more 
 extensive in its benefit than another, and states in 
 his specification only that mode which %vould be 
 least beneficial, reserving to himself the more be- 
 neficial mode of practising it, although he will have 
 so flir answered the patent as to describe in his spe- 
 cification a machine to which the patent extends, 
 yet will not have satisfied the law, by not communi- 
 cating to the public the most beneficial mode he was 
 then possessed of, for exercising the privilege granted 
 to him." Mr. J. BuUer also, in the above case of 
 
 (c) Bovill V. Moore, Dav. on Pat. 398. 
 
 (5) Turner v. Winter, 1 T.R. 602. 
 
 (c) lb. 
 
 {d) Bovill V. Moore, cit. sup.
 
 INFRINGEMENT OF PATENTS. 253 
 
 Turner v. Winter («), observed, that " if the pa- Infringemeyit 
 tentee makes the article for which the patent is "-' 
 granted, with cheaper materials than those which he 
 has enumerated, though the latter will answer the 
 purpose equally well, the patent is void, because he 
 does not put the public in possession of his invention, 
 or enable them to derive the same benefit which he 
 himself does.'* 
 
 If the patentee state in the specification that 
 which is not new, though it was unnecessary for 
 him to do so, he has overstepped his right, and has 
 included that which is not his invention, and the 
 patent will be void (h). If he embraces within his 
 invention any thing which was a part of a prior in- 
 vention, he has no right to such benefit (c). So if 
 there existed, at the time of taking out the patent, 
 engines of which the subject of the patent was only 
 an improvement, the patent ought to be only for the 
 improvement {d). 
 
 In the specification of a patent for an improved ^^liat is ne- 
 
 . . .1 . • ^ \ i. cessary in a 
 
 instrument, it is essential to point out precisely what specification 
 is new and what is old; and it will not be suf- for an im- 
 
 ' . . proved nia- 
 
 ficient to describe the whole machine, uniting to- nutacture. 
 gether the new and the old parts : it must be de- 
 scribed as a new application of a new invention 
 upon an old manufacture (e). But it seems that the 
 distinction will be sufficiently made, either by re- 
 ference to the former specification, or by a recital 
 
 (a) 1 T. R. 607. 
 
 (6) Huddart v. Grimshaw, cit. sup. 
 
 (0 lb. 
 
 {d) Bovill r. Moore, cit. sup. 
 
 (f ) Vide Williams v. Brodie, cit. Dav. on Pat. 97.
 
 ^25if INJUNCTIONS TO RESTRAIN 
 
 Infrincrrment of the first patent in the second. This point was 
 ofPai cnts. ej5tablished in the case of Harmer v. Phme, which 
 first came on before Lord Eldon, and upon which a 
 case was directed for the opinion of the Court of 
 King's Bench. The arguments at the bar, and the 
 observations of the court, are so valuable and im- 
 jiortant as to justify a copious extract. The plain- 
 tiff had obtained a patent, dated the 20th of March, 
 1787, for a certain manufacturing machine, of which 
 he had duly enrolled a specification. On the 29th 
 of March, 1794, he obtained another patent, where- 
 by, after reciting that he had obtained letters patent 
 of the 20th of March, I787, authorising him to 
 make, use, and vend his invention of a machine for 
 raising a shag upon all sorts of woollen cloths, &c. 
 for fourteen years, and further, that he had invented 
 considerable improvements in the said machine, for 
 which improvements he prayed his Majesty's letters 
 patent, &c. The letters patent therefore granted 
 to him the sole privilege and authority to make, 
 use, and vend Jiis said invention. The letters patent 
 also contained the usual condition, that it should be 
 void if the patentee did not, wdthin one month, enrol 
 a specification, particularly describing and ascertain- 
 ing the nature of the said invention, and in what 
 manner the same was to be performed. The spe- 
 cification contained a full description of the 'whole 
 of the machine so improved, but did not distinguish 
 the new improved parts from the old parts, nor did it 
 refer to the former specification, except inasmuch as 
 the second patent recited the first. 
 
 Upon the question as to the validity of the second 
 patent coming on before Lord Eldon, upon a motion
 
 INFRINGEMENT OF PATENTS. ^55 
 
 to dissolve an injunction, his Lordship expressed con- Infringement 
 siderable doubt as to the sufficiency of the specifica- ^ "^ ^'^ '' 
 tion. He said that no man reading that specification 
 could possibly collect from it the fact that there were 
 two patents, the one for the original machine, the 
 other for the improvements upon that machine. It 
 had been argued, and his Lordship admitted, that if 
 there was an original patent, and a specification 
 under it, and then a patent for improvements, and 
 a specification under that patent, incorporating, 
 either by reference or repetition, the specification 
 under the former patent as part of its own de- 
 scription, and proceeding to show the improve- 
 ments, that would be a good specification. But he 
 doubted whether it must not appear upon the spe- 
 cification enrolled for the improvements, what were 
 the improvements ; and still more, whether it must 
 not so exhibit the thing to be specified, as to show 
 that it is improvement, in respect of which the 
 patent for the invention is granted not having a 
 tendency to mislead. That every person reading this 
 specification would believe that in 1794 a patent 
 was granted for a machine, and that the specifica- 
 tion held out that the patentee is protected as to 
 the use of every part of that machine, constructed 
 and worked according to the description contained in 
 that specification, constituting the whole of it from 
 the date of the only patent recited. His Lordship 
 observed, that the question to be tried would be, not 
 whether a specification, referring to a former patent, 
 and endeavouring to incorporate in it the former 
 specification, would be sufficient in law, but whether 
 a patent for a machine, with a due specification
 
 256 INJUNCTIONS TO RESTRAIN 
 
 Infriii^anent having bccii granted, and a subsequent patent being 
 
 ^^^^J^ granted for improvements ; it is competent in law 
 
 to represent in the specification that the Jatter pa- 
 tent is granted, not for improvements, but for the 
 macliine ; carrying forward that idea, and describing 
 the new invention as one entire machine ; not as 
 improvements contradistinguished from the original 
 machine? His Lordship directed a case for the 
 opinion of the Court of King's Bench («). 
 
 It was contended, on behalf- of the plaintiff, that 
 the patent, and the specification referring to it, were 
 to be construed together as one instrument: that 
 the first patent and specification being enrolled, the 
 public must be taken to know their contents, or at 
 least, that the second patent, by referring to the 
 first, directed the party to the source from whence 
 that information might be obtained in the manner 
 required by law; that the very nature of the second 
 patent, which was for hnprovements in a machine, for 
 which a former patent had been granted, pointed to 
 such former patent and the specification annexed ; 
 that there need not be an express reference. By 
 comparing the two patents and specifications toge- 
 ther, the party seeking for information as to what 
 he might lawfully make, without the licence of the 
 patentee, must necessarily see for what particular 
 parts of the improved machine the second patent 
 was granted; and the patentee was not bound to 
 state in his second specification, that which he had 
 before stated separately in his first, and which the 
 subject was bound to know. A specification, it was 
 
 (o) 14 Ves. 130.
 
 INFRINGEMENT OF PATENTS. 2.57 
 
 said, need not contain every thing at length relating Infringement 
 to the subject matter, but might refer to other '^^ 
 public instruments, or to general sources of know- 
 ledge, which every person of reasonable skill and 
 information on the subject might fairly be presumed 
 to know. That there was a constant reference in 
 these instruments to drawings which accompany 
 them, and without which the description of the par- 
 ticular invention would not be intelligible. That 
 no person could be misled by the specification of a 
 patent for an improved machine, describing the 
 whole machine so improved. That it was even 
 more convenient than merely stating what the im- 
 provements were, which would be a literal com- 
 pliance with the condition, but far less intelligible ; 
 for such a bare method of describing the new in- 
 vention would require a much higher degree of 
 knowledge and memory of the subject-matter, and 
 of every former patent, than that which describes 
 the whole combination of new and old parts forming 
 the entire improved machine. The patentee has 
 only an exclusive right to the whole combination 
 for which his patent is granted, and the use of par- 
 ticular parts only is no breach of his rights ; the de- 
 scription, therefore, of the particular improvements, 
 distinct from the parts in general use before, would 
 be useless to all, and less intelligible to many. 
 
 It was said on the other side that the proviso in 
 the second patent was express, that the patentee 
 should " particularly describe and ascertain the 
 nature of the said invention (i. e. the improvements J, 
 and in what manner the same was to be })erformeil," 
 
 s
 
 258 INJUNCTIONS TO RESTRAIN 
 
 Infringement &c. if that condition was not peribrmcd, the patent 
 
 _£ _^ was dechired void ; tliat although it was pretended 
 
 that tlie improvemenls of the machine, for which alone 
 the second patent w^as granted, were particularly 
 described and ascertained in the specification, yet 
 that it was in fact the whole machine (including in- 
 deed those improvements), which was so described, 
 without ascertaining the newly invented parts. That 
 the patent was not for the whole machine, but for a 
 part only, so that no person looking only to the second 
 specification, or to that and the patent to which it 
 appertained, could inform himself for what parts of 
 the machine that patent was granted : such know- 
 ledge could only be acquired by looking to both the 
 patents and specifications. Unless the alteration of 
 or addition to an old machine be bond Jide an im- 
 provement, and useful to the public, the crown 
 could not grant a patent for it, and therefore it 
 should appear upon the face of the instrument itself 
 what the improvement was. The specification ought 
 to inform the public what the thing is for which the 
 patent is granted, and how it is to be made ; and 
 not merely inform them where else that information 
 was to be required ; that no person applying to the 
 specification of one patent is bound to know that 
 another has been granted. If inquiry be necessary 
 to be made for facts dehors the instrument itself, it 
 was difficult to say where the line should be to be 
 drawn; references might as well be made to dic- 
 tionaries of arts and sciences, philosophical transac- 
 tions, &c. as to other patents and specifications. 
 The patentee was not to throw on the party the
 
 INFRINGEMENT OF PATENTS. QdQ 
 
 trouble, and expense, and loss of time of acquir- Infringement 
 ing the knowledge of his invention, by investiga- ^ 
 tion and comparison. That it might be doubtful 
 whether a direct reference to tlie former specifica- 
 tion would have sufficed, but that in the present 
 case there was no such reference, but the two 
 instruments were endeavoured to be connected 
 through the intervention of the second and first 
 patents. If there were a succession of patents for 
 several improvements ending at different periods, it 
 might be extremely difficult for a person to collect 
 from specifications of this kind the periods when the 
 several inventions would be open to the pubhc. 
 That the true sense of the condition was to give 
 the public direct and complete information of the 
 manner of executing the invention, without further 
 search or trouble. 
 
 Lord EUenborough, at the conclusion of the ar- 
 gument, observed, that he had been disposed to 
 think that it was a departure from the terms of the 
 proviso for the patentee merely to tell the inquirer, 
 who came to consult the specification, how he might 
 learn what the invention was, instead of giving him 
 that information directly. But he felt himself im- 
 pressed by an observation which had been made in 
 the course of the argument by Mr. J. Le BUmc, that 
 the trouble and labour of referring to and comparing 
 the former specification with the latter, would be 
 fully as great, if the patentee only described in this 
 the precise improvements upon the former machine. 
 Reference, indeed, must often be necessarily made 
 in these cases to matters of general science, or 
 
 s 2
 
 260 
 
 INJUNCTIONS TO RESTRAIN 
 
 Model not 
 necessary. 
 
 Infringement the party miist carry a reasonable knowledge of the 
 "' subject-matter with him, in order clearly to com- 
 
 prehend specifications of this nature, though fairly 
 intended to be made. 
 
 The court afterwards certified in favour of the 
 patent {a). 
 
 It is not necessary to set forth a model or drawing, 
 provided the patentee so describes the invention as 
 to enable artists to adopt it when his monopoly ex- 
 pires ; and if a drawing or model has been made, 
 and a person copies the improvement and makes a 
 machine in a different form, this will be an infringe- 
 ment of the patent, because, although the form has 
 been varied, the mechanical improvement would 
 have been introduced into the machine, and it is for 
 the mechanical improvement, and not the form of 
 the machine, that the patent is granted (h). 
 
 Practice in 
 equity. 
 
 Injunctions 
 granted in 
 tlie first in- 
 stance where 
 there has 
 been posses- 
 sion under 
 the patent. 
 
 The practice of courts of equity in granting in- 
 junctions in cases of patents, was so fully explained 
 by Lord El don on a recent occasion (c), that it 
 would be difficult to find a case which contains any 
 doctrine upon that subject which is not fully stated 
 there. 
 
 AVTiere a patent has been granted, and there has 
 been an exclusive possession of some duration under 
 
 (a) 11 East. 101. 
 
 {b) 2 H. Bl. ^19. Ex parte Fox, 1 V. & B. 67- 
 
 (c) Hill V. Thompson, 3 Meriv. 622.
 
 INFRINGEMENT OF PATENTS. 261 
 
 it, the court will interpose its injunction without ivfr/ngevicnt 
 putting the party previously to establish the validity '^' 
 of his patent by an action at law ; it will give so 
 much credit to the apparent right, as to restrain 
 the invasion of it, and continue that interposition 
 till the apparent right has been displaced (a). 
 Thus, upon the great question which arose upon 
 Mr. Watt's patent, which we have seen was a case 
 of so much doubt that the judges of the Common 
 Pleas were equally divided upon it, the injunction 
 was granted till the question could be tried ; and, as 
 Lord Eldon has observed, upon the sole ground of 
 the possession by the patentees against all man- 
 kind (Z>). After the argument in the Common Pleas, 
 a motion was made to dissolve, Vvhich Lord Rosslyn 
 not only refused, but also to put the patentees upon 
 the acceptance of any terms which they might think 
 disadvantageous to the right of which they were in 
 full possession (c). 
 
 But where the patent is modern, and upon an ap- Where pa- 
 
 ,..-. ir» •• • •• ^^^^ modern 
 
 plication being made for an injunction, it is en- a trial is first 
 deavoured to be shown in opposition to it, that 'lirectcd. 
 there is no good specification, or otherwise that 
 the patent ought not to have been granted, the 
 court will not, from its own notions respecting the 
 matter in dispute, act upon the presumed validity 
 or invalidity of the patent, without the right having 
 been previously ascertained by a trial at law, and 
 
 (a) 3 Meriv. 624. 628. Vide also 14- Vcs. 130. 
 
 {b) H Ves. 132. The patentees had been in possession twenty- 
 seven years, the patent before its expiration having been renewed 
 by act of parliament for twenty-five years. 
 
 (c) Bolton V. Bull, 3 Ves. UO.
 
 '26Q injunctions to restrain 
 
 Infringement oblige him to establish the validity of his patent in 
 '^ " ^" ''^' a court of law, before it will grant him the benefit 
 
 of an injunction (<:/). 
 In what If, ujion dissolving an injunction, the court sees 
 
 at law is ' sufficient ground for doubt, it will either direct an 
 directed and issue, or an action : and it will sometimes add to its 
 
 an account i t • 
 
 to be kept in more general directions, that the party against whom 
 the mean ^|^g application is made, shall keep an account pend- 
 ing the discontinuance of the injunction, in order 
 that if it shall finally turn out that the plaintiff has 
 a right to the protection he seeks, amends may be 
 made for the injury occasioned by the resistance to 
 his just demands (b). 
 Proceedings After tlie trial at law, if the party who contested 
 trial atTaw ^^^^ validity of the patent is successful, he will be 
 entitled to come before the court to demand the 
 costs and expenses he has sustained, by being 
 brought into a court of equity by an allegation or 
 right, which has not been supported (c). If the 
 patentee is successful, he may apply to revive the 
 injunction, a motion which is generally granted. 
 In the case, however, from which the above doctrine 
 is collected, the plaintifl* having obtained a verdict, 
 applied to revive the injunction, and it was objected, 
 that the defendants intended to move for a new 
 
 (a) 3 Meriv. 624". 628. The circumstance that the right had 
 not previously been established at law, appears in one case 
 to have been made the subject of a demurrer, which it is 
 scarcely necessary to add was overruled. Hicks r. Raincock, 
 2 Dick. 64.7. 
 
 (i) 3 Meriv. 628. 629. Vide also Lord Cochrane v. Smethurst, 
 Day. on Pat. 355. n. 
 
 (c) lb. 629.
 
 INFRINGEMENT OF PATENTS. 
 
 26S 
 
 trial, Lord Eldon therefore refused to revive till Infringement 
 the result of that application should be known ; ^ " ^" ^'_ 
 directing, however, the parties to continue in the 
 interim to keep the account, which had been di- 
 rected on a former occasion upon dissolving the in- 
 junction.
 
 2()4 INJUNCTIONS TO lUOSTKAlN 
 
 C(ypijriglit. 
 
 CHAPTER XIII. 
 
 Of Injunctions to restrmn the Infringement of Copy- 
 right. 
 
 The jurisdiction of courts of equity in interposing 
 by injunction to restrain the violation of copyright 
 has been assumed merely for the purpose of making 
 effectual the legal right. Adequate relief cannot be 
 given by any action for damages. It is impossible 
 to lay before a jury the whole evidence as to all the 
 publications which go out to the world to the plain- 
 tiff's prejudice ; and the sale of copies by the de- 
 fendant is in such instance, not only taking away 
 the profit upon the individual book, which the 
 plaintiff probably would have sold, but may injure 
 him to an incalculable extent, v.'hich no inquiry for 
 the purpose of damages can ascertain («). 
 
 The statutes upon which the right to this im- 
 portant branch of property at present rests are the 
 
 Books. following:— 
 
 8 Ann, c. 19. By the 8 Ann, c. 19- an author and his assigns had 
 the sole liberty of printing and reprinting his w^orks 
 for the term of fourteen years and no longer, and if 
 
 (a) 8 Vcs. 22J. 17 Vcs. 12^
 
 INFRINGEMENT OF COPYRIGHT. ^265 
 
 at the end of that term the author liimself were Statutes. 
 
 living, the right was to return to him for another 
 
 term of the same duration. 
 
 As before the union no statute existed to protect 4^1 Geo. 3. 
 
 copyright in Ireland, by the 41 Geo. 3. c. I07. 
 
 similar provisions were extended to the whole of the 
 
 United Kingdom. 
 
 By the 54 Geo. 3. c. 156. the author, or his as- -^i- Geo. 3. 
 J . , c. 156. 
 
 signee or assigns, have the sole liberty of printing 
 
 and reprinting for the full term of twenty-eight years, 
 to commence from the day of publication ; and also, 
 if the author be living at the end of that period, for 
 the residue of his natural life («). 
 
 By the 12 Geo. 2. c. 36. the importation of ^^g^''"' ^• 
 books reprinted abroad, and first composed or writ- 
 ten and printed in Great Britain, is prohibited under , 
 certain penalties, with a proviso, not to prevent the 
 importation of any book inserted among other books 
 or tracts to be sold therewith in any collection, 
 where the greatest part of such collection shall have 
 been first composed or written and printed abroad. 
 
 By the 15 Geo. 3. c. 53. the Universities in 15 Geo. 3. 
 
 c 53. 
 England and Scotland (and by the 41 Geo. 3. 
 
 c. 107. s. 3. Trinity College, Dublin,) and Eton, 
 Westminster, and Winchester, are enabled to hold 
 in perpetuity their Copyright in books given or be- 
 queathed to them, for the advancement of useful 
 learning and other purposes of education. 
 
 By the 8 Geo. 2. c. IS. the property in certain Prints, 
 
 S Cifo. 2. 
 (a) It has been established upon the construction of this act, *■• 
 that an author whose works liad been pubhshed more than twenty- 
 eight years before the passing of it, was not entitled to the copy- 
 right for hfe. Brooke v. Clarke, 1 li. & A. 396.
 
 2GG INJUNCTIONS TO RESTRAIN 
 
 Statu/rs. prints (as to wJiich see the next statute) is vested in 
 the inventors, &c. for 14 years, from the da?/ of 
 pubUshing-, wliich shall be truly engraved with the 
 name of the proprietor on each print, and the statute 
 inflicts on persons printing the same without the 
 consent of the proprietor, the penalty of forfeiting 
 the plate, the sheets on which the prints are copied, 
 and 5s. for every print, &c. 
 
 7 Geo. 3. By the 7 Geo. 3. c. 57- (by which the provisions 
 
 of the last act are amended and extended) the sole 
 right ofprintingandreprinting,intendedtobe secured 
 by both the acts, is declared to be extended, con- 
 tinued, and vested for the term of twenty-eight years, 
 in all and every person and persons who shall invent 
 or design, engrave, etch, or work in mezzotinto 
 6t chiaro oscuro, or from his own work, design, or 
 invention, shall cause or procure to be designed, 
 engraved, etched, or worked in mezzotinto, or 
 chiaro oscuro, any historical print or prints, or any 
 print or prints of any portrait, conversation, land- 
 scape, or architecture, map, chart, or plan, or any 
 print or prints whatsoever. The 17 Geo. 3. c. 57- 
 gives a special action on the case to recover da- 
 mages. * 
 
 Whether the It has been determined upon these statutes that 
 
 insertion of ]jqi\i the date and the 7iame of the engraver must be 
 
 the na)7ie and , , ^ ^ 
 
 date on the engraved on the print, in order to entitle a party to 
 print is ne- ^^le penalty imposed by the statute of Geo. 2. (a\ 
 
 cessary to -^^ .^ -r ./ ^ -* 
 
 support an But how far these circumstances are necessary to 
 kw'orsuitin support an actiou at law, or a bill for an injunction, 
 equity. and an account, is at present vexata questio. Lord 
 
 (a) Sayer v. Dicey, 3 Wils. 60.
 
 INFRINGEMENT OF COPYRIGHT. 267 
 
 Hardwicke («) was of opinion, that the clause in the Statutes. 
 act was only directory, and that the property was ~~ 
 
 vested absolutely in the engraver, althongh the dai/ 
 of publication was not mentioned, and compared it to 
 the clause under the statute of Ann, which requires 
 entry at Stationers* Hall, upon the construction of 
 which, it has been determined, that the property 
 vests, although the direction has not been complied 
 with(Z'). Lord Ellenborough also held at 7iisi jmus, 
 that an action might be maintained, although the 
 proprietor's name v/as not inscribed, observing that 
 the interest was vested by the statute, and that 
 the common law gave the remedy (c). On the other 
 hand, it appears to have been taken for granted by 
 the Court of King's Bench, in the case of Thompson 
 V. Symonds (g?), though it became unnecessary to 
 decide the point, that both the name and the date 
 should appear ; the date. Lord Kenyon observed, is 
 of importance, that the public may know the period 
 of the monopoly; the 7iame should appear, in order 
 that those who wish to copy it, may know to whom 
 to apply for consent. Li the case of Harrison v. 
 Hogg (e) (where it also became unnecessary to de- 
 cide the point). Lord Alvanley stated it to be his 
 opinion, that he differed from Lord Hardwicke, and 
 
 (a) Blackwell v. Harper, 2 Atk. 95. Barn. Ch. Rep, 213. This 
 case, as well as JefFerys v. Baldwin, Amb, 16t. are rendered un- 
 important by the provisions of the 7th Geo. 3. c. 57. 
 
 (6) Vide post, p. 272. 
 
 (c) Roworth V. Wilks, 1 Campb. 97. 
 
 (d) 5T. R. 41. 
 
 (e) 2 Ves. jun. 323.
 
 ^2G8 
 
 INJUNCTIONS TO RESTRAIN 
 
 Statutes. 
 
 Sculptures, 
 models, &c. 
 
 Patterns for 
 linens, 
 cottons, &c. 
 
 that he believed the insertion of tlie name and date 
 to be essential to the plaintiff's right. 
 
 The principal point determined in the above case 
 of Thompson v. Symonds was, that the assignee of 
 a print may maintain an action under the 17 Geo. 3., 
 and that in such action it is not necessary to produce 
 the plate itself in evidence, one of the prints taken 
 from the original plate being good evidence. 
 
 It has recently been determined at nisi priiis, by 
 analogy to those cases in equity, which have decided 
 that tliere can be no copyright in a particular sub- 
 ject (a), that where an engraving has been made 
 from a picture, it is not a piracy to make another 
 engraving from the original picture (b). 
 
 There are two other sorts of property, of a nature 
 in some measure connected, and which are also 
 protected by similar statutes. 
 
 By the M Geo. 3. c. 23. (which amended and 
 extended the provisions of the 58 Geo. 3. c. 71- (0)' 
 the property of all original sculptures, models, copies, 
 and casts, are vested in the first maker of them, with 
 an additional term of fourteen years, in case they 
 shall be living at the end of that time. 
 
 By the 34 Geo. 3. c. 23. (which amended and ex- 
 tended the 27 Geo. 3. c. 38.) the property in all 
 original patterns for printing linens, cottons, calicos, 
 or muslins, are vested in the designers, printers, and 
 proprietors, for three months, to commence from the 
 
 Vfl) Vide post. p. 282. 
 
 (6) De Berenger v. Weble, 2 Stark. N, P. C. 548. 
 (c) An instance of the absurdity and inefficiency of this act, 
 will be found in the case of Gahagan v. Cooper, 5 Canipb. 111.
 
 INFRINGEMENT OF COPYRIGHT. 269 
 
 Copi/risht. 
 
 day of first publishing thereof, which shall be truly Prerogative 
 printed, with the name of the printer or proprietor 
 at each end of every such piece of linen, &c. It has 
 not been determined upon this statute, whether an 
 action can be supported, though the requisites as to 
 the date and name are not complied with. The 
 only determination upon it is the case of Mackmurdo 
 V. Smith {a), when the Court of King's Bench were of 
 opinion that the omission of an averment in the de- 
 claration, " that the day, &c. was printed," was 
 aided by verdict, it being stated in the declaration, 
 that the defendants pirated the pattern within the 
 term of three months from the day of the first pub- 
 lishing thereof, and while the plaintiffs were entitled 
 to have the sole right of printing the same. 
 
 The final decision upon the much agitated question Prerogative 
 as to the common law right of an author to his ^<^PF'& *^- 
 literary productions, has excluded any other title in 
 authors or their assigns, except that which they derive 
 under these statutes [b). 
 
 There is, however, one acknowledged exception 
 to this rule, in respect of that right vested by pre- 
 rogative in the crown, to the exclusive publication 
 of certain works, and which has been made the sub- 
 ject of grant, from time to time, to various patentees. 
 
 (rt) 7 T. II. .318. 
 
 (J)) Donaldson v. Beckett, 2 Bro. P. C. Ed. Tonil. 129.
 
 270 
 
 INJUXCTIONS TO RESTUAIN 
 
 Prerocrntive Thesc arc, the exclusive privilege of printing acts 
 "^■^^ '^ ^ ' of parliament, proclamationSj orders of council, he. 
 liturgies, and- books of divine service («). 
 
 I^ible. The translation of the Bible is also one of tliose 
 
 works which, notwithstanding some doubts occa- 
 sionally thrown out to the contrary (b), appears to be 
 a prerogative copy (c). 
 
 Almanacks. An exclusiv^e right was also supposed to exist in 
 the crown of printing almanacks : this had been 
 granted by letters patent of James I. to the Stationers' 
 Company, and the universities of Oxford and Cam- 
 bridge ; and though the right had never been 
 solemnly determined at law, yet it was considered 
 so fully established, that injunctions had frequently 
 been granted upon it in the Court of Chancery (r/). 
 A bookseller, however, of the name of Carnan, de- 
 termined to try this right, printed and sold large 
 quantities of almanacks, upon which a bill for an 
 injunction and an account was filed against him in 
 the Exchequer by the two universities and the Sta- 
 tioners' Company : a case was directed to the court 
 of C. B. as to the validity of that patent. After two 
 arguments, that court certified against the legality 
 
 (fl) 2 Bl. Com, 410. Company of Stationers' case, 2 Ch. Ca. 
 76. Basket v. Cunningham, 2 Eden, 137. 1 Bl. Rep. 370. Eyre 
 -y. Carnan, cit. 6 Ves. 697. Basket v. University of Cambridge, 
 2 Burr. 661. 1 Bl. Rep. 105. 
 
 {b) Anon. 1 Vern. 120. Hill v. University of Oxford, ib. 275. 
 Grierson v. Jackson, Irish T. R. 304-. 
 
 (c) 2 Bl. Com. 405. Basket v. Parsons, 6 Ves. 699. Basket v. 
 Watson, ib. Universities of Oxford and Cambridge v. Richardson, 
 6 Ves. 689. 
 
 (rf) Stationers' Company v. Lee, 2 Ch. Ca. 66. Same p. Wright, 
 ib. 76. Same v. Partridge, cit. 2 Bro. P. C. Ed. Toral. 137.
 
 INFRINGEMENT OF COPYRIGHT. 271 
 
 of the patent, and the court of Exchequer dismissed Prerogative 
 the bill. A bill was afterwards brought into the ^''Py''^'^' 
 House of Commons to revest that monopoly, but was . 
 rejected by a considerable majority («). 
 
 There is another species of copyright in some 
 measure resembling the last, and said to be founded Trials before 
 not on property, but the public interest, according ^^^ House of 
 to which the House of Lords has, on certain occa- 
 sions, asserted to itself the exclusive privilege of 
 directing and granting the publication of its judicial 
 proceedings. It has accordingly, in every case of 
 impeachment or indictment since the time of Dr. 
 Sacheverell's trial, made orders that the Lord 
 Chancellor for the time being should cause the trial 
 to be published, with a prohibition to other per- 
 sons to publish it. Upon the foundation of an order 
 of this nature, an injunction was granted by Lord 
 Bathurst, before answer, to restrain the publication 
 of the trial of the Duchess of Kingston {b) ; and 
 upon this precedent Lord Erskine granted an in- 
 junction until the hearing, to restrain the publication 
 of Lord Melville's trial (c). It is to be regretted 
 that the right was in neither of these occasions dis- 
 cussed at the hearing, as in the former the defend- 
 ant submitted, and the latter ended in a compro- 
 mise. There is a distinction between the two cases, 
 which is noticed by Lord Erskine, but not as if he 
 thought it made any material difference : the House 
 
 (a) Vide Ridgway's edition of Lord Erskinc's Spceclies, Vol. I. 
 35. 
 
 (b) Bathurst v. Kearsley, East. 1776, cit. 13 Ves, 501-. 
 
 (c) Gurncy v. Longman, 13 Ves. 493.
 
 272 
 
 INJUNCTIONS TO RESTRAIN' 
 
 Sessions 
 Paper. 
 
 Construct 1071 o£ Lorcis had permitted the Duchess of Kingston 
 afAnne^ " '^ to employ a person to take notes, she had dcHvcred 
 
 the notes to her counsel to be corrected, and had 
 
 afterwards delivered the copy so corrected to the 
 defendant, with directions to publish them for her 
 protection. 
 
 There is still an earlier case, founded upon the 
 same principle, and which is more satisfactory, as 
 having been established at the hearing. A bill was 
 filed by printers, who had bought from the Lord 
 Mayor the copies of the Sessions Paper ; upon which 
 Lord Hardwicke, upon the ground of its having 
 been always usual for the Lord Mayor to appoint a 
 printer of the trials, and to take a consideration for 
 it, granted an injunction till the hearing. The cause 
 afterwards came on before Lord Northington, and 
 the injunction was made perpetual by him at the 
 hearing («). 
 
 Entry at 
 Stationers* 
 Hall not 
 necessary. 
 
 It will here be proper to notice certain deter- 
 minations upon the construction given to the statute 
 of Anne, to show what publications have been con- 
 sidered as entitled to the protection which is given 
 by it, and in general in what cases the courts of equity 
 have thought proper to interpose. 
 
 It is provided by the second section of this statute, 
 that no bookseller, printer, or other person, should 
 be subjected to the forfeitures or penalties therein 
 
 (a) Manby i?. Owen, cit. Burr. 2330. S. C. MS.
 
 INFRINGEMENT OF COPYRIGHT. 273 
 
 mentioned, unless the title to the copy of such book Construction 
 or books should before publication, be entered in the ^^^^„;fj.'''"'^ 
 
 register book of the Com})any of Stationers. It was 
 
 doubted, upon the construction of this clause, whether 
 an author who had not entered his w^ork, could 
 maintain an action on the case for damages aj^ainst 
 a person pirating his work. The court of King's 
 Bench held, that the statute having vested the right 
 in the author, the common law gave the remedy by 
 action on the case for the violation of it («). It had 
 been before decided in equity, that it was no ob- 
 jection to a bill for an injunction and an account, 
 that the book had not been registered at Stationers' 
 Hall(^»). 
 
 It was decided by the Court of King's Bench, Acting not a 
 that evidence of the defendants having acted a ^'^ 
 dramatic composition on the stage, was not evidence 
 of a publication within the meaning of the statute 
 of Anne. Mr. Justice Buller observed, that report- 
 ing any thing from memory, could never be a pub- 
 lication w ithin the statute ; the mere act of repeat- 
 ing could not be left as evidence to the jury that the 
 defendant had pirated the work itself (c). 
 
 Injunctions have, however, in two instances, been Injunctions 
 
 , . , P • .to restrain 
 
 granted to restrain the " perrormmg, or causnig, or iictin"^. 
 permitting to be performed" dramatic works, of 
 which the plaintiff was the proprietor (d). 
 
 {a) Beckford v. Hood, 7 T. R. 620. 
 
 (6) Bailer v. Walker, cit.2 Atk. 94. Vide ante, p. 266, as to the 
 compliance with the directions contained in the statutes, which 
 vest a property in engravings and patterns. 
 
 (c) Coleman v. Wathen, 5 T. R. 24-5. 
 
 (d) Morris c. Harris, 1814-. Morris v. Kelly, 20th June, 1R20. 
 
 T
 
 Musical 
 composition. 
 
 Sy^ INJUNCTIONS TO RESTRAIN 
 
 Construction j^ jj^^ ^^^^ ^^^^ determined upon this statute, that 
 
 (>/ t/ie Statute ^ ' ' 
 
 of Anne. the assignment of tlie copyright must be in writ- 
 7~ ing (a) ; and accordingly evidence of the plaintiff 
 
 Assignment o v / ' ^ . . '^ 
 
 must be in having acqiiicsced for six years in the defendant's 
 vutmg. publication, was holden not to prove that he had 
 
 transferred his interest in the copyright {b) ; and 
 that a receipt given by him for money received 
 for the price of the copyright, would not preclude 
 the plaintiff from maintaining the action (c). But 
 in a case where a witness stated, in cross examina- 
 tion, that he had heard the plaintiff declare that 
 he had parted with all his interest in the copyright, 
 without mentioning in what manner the transfer had 
 taken place, the plaintiff was nonsuited (f/). 
 
 It has been determined, upon a case sent out of 
 Chancery, that a imtsical composition is a waiting 
 within the statute of Anne (e). A question has also 
 been considerably agitated, whether a composition 
 published on a single sheet of paper, was privileged 
 as a booh within that statute ; which, after consider- 
 able doubt, and after very ingenious and interesting 
 arguments, has also been decided in the affirma- 
 tive (y). And it has been further determined, that 
 an allegation, that the plaintiff was the author of a 
 book, being a musical composition called A, is well 
 
 (fl) Power V. Walker, 4:-Campb. 8. 2 M. & S. 7. 
 
 {b) I.atour V. Bland, 2 Starkie, 382. 
 
 (c) Ibid. 
 
 {d) Moore u. Walker, 4- Campb. 8. n. Vide post, p. 288. as to 
 the practice of the Court of Chancery upon this subject. 
 
 (c) Bach V. Longman, Cowp. 623. 
 
 (/) Hime x\ Dale, 2 Campb. 28. n. Clementi r. Golding, ib. 25. 
 1 1 East. 244-.
 
 INFRINGEMENT OF COPYRIGHT. 275 
 
 supported, by showing him to have been the autlior Construction 
 
 p . , ., .' n ^ . . ^ . of the statute 
 
 oi a musical composition or tliat name, comprised in fy^^,^„^. 
 
 and occupying only one page of a work with a dif- 
 
 ferent title, which contained several other musical 
 compositions {a). The difficulty in these cases arose 
 from the statute, which in the preamble uses the 
 expression " books and other writings," speaking in 
 the enacting part only of " book or books." 
 
 A common instance of the interposition of a court Unpublished 
 of equity is, to restrain the publication of UnpiibUshed ^^^'^^ 
 MSS. (^b). Two early precedents of this, are the 
 cases of Mr. Webb, who had his Precedents of 
 Conveyancing stolen out of his chambers, and print- 
 ed (c) ; and of Mr. Forrester, whose notes were 
 copied by the clerk of a gentleman to whom he had 
 lent them (r/). Upon this ground an injunction was 
 granted to restrain the publication by Dr. Shebbeare 
 and Mr. Gwynne of the second part of Lord Claren- 
 don's History : it had been delivered by Henry, 
 Earl of Clarendon, to an ancestor of the defendant 
 Gwynne, with liberty, as it was stated, to take a 
 copy of it, and make what use of it he thought fit. 
 
 (a) White v. Geroch, 2 B. & A. 298. 
 
 {b) It has been determined at law, that the 5tGeo.3. c. 156. 
 does not impose upon authors, as a condition precedent to their 
 deriving any benefit under that act, that the composition sliould 
 be first printed; and therefore that an author does not lose his 
 copyright by selling his work in MS. before it is printed. White 
 V. Geroch, 2 B. & A. 298. 
 
 (c) Webb V. Rose, 24 May, 1732. cit. 2 Bro. P. C. Ed. Tonil. 
 138. 
 
 {(I) Forrester v. Waller, 13 June, IT-M. ib. 
 
 T 2
 
 T/6 
 
 INJUNCTIONS TO RESTRAIN 
 
 Construction 
 of the Statute 
 of Anne. 
 
 Matters be- 
 fore the 
 Privy 
 Council. 
 
 Injunction to 
 restrain pub- 
 lication of 
 private 
 letters form- 
 ing a literary 
 composition. 
 
 Lord Nortliington, however, observed, that it was 
 not to be })resumed that Lord Clarendon, when he 
 gave a copy of his father's work to Mr. Gwynne, 
 intended that he should have the profit of multiplying 
 it in print ; that Mr. Gwynne might make every use 
 of it except that (r/). Li Macklin v. Richardson (^), 
 the defendant had employed a short-hand writer to 
 take down the farce of Love a la Mode upon its per- 
 formance at the theatre, and inserted one act in a 
 magazine, and gave notice that the second act would 
 be published in the magazine of the following month j 
 upon which an injunction was granted. 
 
 In the case of the late Dr. Paley, who left certain 
 manuscripts to be given to his own parishioners only, 
 a bookseller, who had obtained possession of them, 
 was restrained from publishing them (c). 
 
 A case has been mentioned in argument at the 
 bar (fi?), in which the Attorney General, on grounds of 
 public policy, obtained an injunction to restrain the 
 publication of matters in the Privy Council. 
 
 Upon the same principle the publication of private 
 letters, forming a literary composition, has been re- 
 strained. The first instance of this was the case of 
 Pope V. Curl (e). The defendant was attempting to re- 
 publish in England letters of Pope, Swift, and others. 
 
 (a) Duke of Queensberry v. Shebbeare, 2 Eden, 329. so the bare 
 delivery of the copy to be printed, does not divest the right out of 
 the author. Knaplock v. Curl, 4 Vin. Ab. 278. 
 
 {b) Amb. 694. 
 
 {c) Cit. 2 V. & B. 23. 
 
 {d) lb. 21. 
 
 {e) 2 Atk. 34-2.
 
 INFRINGEMENT OF COPYRIGHT. 277 
 
 which had been ah'eady surreptitiously published in Construction 
 Ireland. Lord Hardwicke restrained the defendant ^ j^„g, 
 
 from printing, publishing, and vending those letters, — 
 
 of which the plaintiff asserted himself to be the 
 author. He said that letters, though familiar, might 
 form a literary composition, in which the author 
 retains his copyright, and does not, by sending them 
 to the person to whom they are addressed, authorise 
 him, or a third person, to use them for the pur- 
 pose of profit, by publishing them against the interest 
 and intention of the author ; that by sending the 
 letters, though he parts with the property of the 
 paper, he does not part with the property of copy- 
 right in the composition. Upon this authority Lord 
 Bathurst granted an injunction against the widow 
 of Mr. Stanhope, and Dodsley, the bookseller, to 
 restrain the publication of Lord Chesterfield's let- 
 ters («). 
 
 The question in these cases, as observed by Sir 
 T. Plumer, arose, whether, where letters had the 
 character of literary composition, the transmission of 
 them to the person to whom they were addressed, 
 deprived the author of his power over them as his 
 composition, so far as to authorise a publication 
 without his consent. And it has been decided, ob- 
 served his Honour, that by sending a letter, the 
 writer does not give the receiver the power of pub- 
 lishing it : that whether he is to be considered as 
 a joint proprietor or not, letters may have the cha- 
 racter of literary composition stamped upon them, 
 so that they are within the spirit of the act of par- 
 
 (fl) Thompson v. Stanhope, Amb. 737.
 
 «78 
 
 INJUNCTIONS TO RESTRAIN 
 
 ij'thc Stdtute 
 of' Anne. 
 
 Not to re- 
 strain all 
 letters. 
 
 "nnstruction liaiiicnt protecting literary property ; and a violation 
 of the right in that instance, is attended with the 
 same consequences as in tlie case of an unpublished 
 manuscript of an original composition of any other 
 description. 
 
 His Honour then proceeded to observe, that ad- 
 mitting that private letters mJght have the character 
 of literary composition, the apjilication of a right to 
 restrain as a universal rule, extending to every letter 
 which any person writes upon any subject, appeared 
 to go a great way, as it included all mercantile letters, 
 all letters passing between individuals, not only upon 
 business, but on every subject that can occur in the 
 intercourse of private life. If in every such in- 
 stance, the publication might, upon this doctrine, be 
 restrained as a violation of literary property ; what- 
 ever might be the intention, the effect would fre- 
 quently be to deprive an individual of his defence, 
 by proving agency, orders for goods, the truth of 
 his assertion, or any other fact, in the proof of which 
 letters might form the chief ingredient. 
 
 Upon this principle his Honour, in the case from 
 
 Not where 
 publication 
 
 necessary to whence these observations are taken, dissolved an 
 party's cha- iiiJLinction against publishing private letters, alleged 
 
 facter. 
 
 to have been obtained from an agent, to whom they 
 were sent in confidence ; the answer denying con- 
 fidence, and avowing the defendant's object in pub- 
 lishing them in a newspaper, of wiiich he was the 
 proprietor, to be not ]n'ofit, but the vindication of 
 his character from the imputation publicly cast upon 
 him by the plaintiff' of giving false intelligence {a). 
 
 {(i) Lord and Lady Perceval v. Thipps, 'J \ . & B. 19,
 
 INFRINGEMENT OF COPYRIGHT. 279 
 
 A court of equity will, however, interfere to pre- Construction 
 
 1 IT- r> 1 1-1 1 1 u o/'t/ie Statute 
 
 vent the publication oi letters which would be a of Anne. 
 breach of trust or confidence, the plaintiff having a 
 
 Injunction 
 
 right of preventing the publication, independent of ^.iJere nubli- 
 any original copyright: an injunction was accord- cation would 
 ingly granted to restrain the publication of letters of trust. 
 from an old lady under a weak attachment to a young . 
 
 man, there having been an agreement not to publish 
 the letters, but to deliver them up for valuable con- 
 sideration, and a sum of money having been actually 
 paid to the defendant («). In a case before Lord Man- 
 ners upon a bill filed by an executor, it appeared that 
 the defendant, who was a relation of the testatrix, 
 and as such had been permitted to reside in her 
 house in Dublin, where she left a great number of 
 letters, had refused to deliver them up, and threatened 
 to publish them by subscription : an injunction was 
 accordingly granted to restrain the publication (b). 
 
 Sir T. Pliimer has alluded to another class of cases Whether 
 under this head, viz. of letters consisting of the cor- ofeon-e- 
 respondence between friends and relations upon ^pondence 
 
 ... -r • between 
 
 their private concerns. " It is not necessary, *' his tviends and 
 Honour observed, " here to determine how far such ''ehitions 
 
 would be re- 
 letters fallino- into the hands of executors, assifjnees strained. 
 
 of bankrupts, &c. could be made public in a way that 
 must frequently be very injurious to the feelings of 
 individuals. I do not mean to say that would afford 
 a ground for a court of equity to interpose to pre- 
 vent a breach of that sort of confidence, independent 
 of contract and property (c).*' 
 
 (a) u. Eaton, 13 Ap. 1813, cit. 2 V. & B. 27. 
 
 (b) Earl of Granard v. Dunkin, 1 Ba. Sz Be. 209. 
 
 (c) 2V.&B. 28.
 
 280 INJUNCTIONS TO RESTRAIN 
 
 Comi ruction It lias been determined tliat a copyriglit may exist 
 of Anne. "^ ^^^ ^ Translationy whether it be produced by personal 
 
 apphcation and expense, or gift («). 
 
 ranslation, rpj^^ court has refused to extend an injunction to 
 right in restrain the publication of the specifications of pa- 
 specification tents, which were part of an original work that had 
 
 of patent. . i , , x 
 
 been pirated (^b). 
 
 Additions. An author may also have a copyright in part of 
 
 a tvorky without having an exclusive right to the 
 whole (c). Thus Gray's poems, which had been for 
 many years published, were collected and published, 
 with additional pieces, by Mason ; Lord Bathurst 
 granted an injunction as to the publication of the 
 additions [d). There is also a prior instance, in 
 which Lord Hardwicke granted an injunction to 
 restrain the defendants from printing Milton's Para- 
 dise Lost with Dr. Newton's notes (e). 
 
 4bridgment. Where a book is colourably shortened only, it 
 is undoubtedly within the meaning of the act of 
 parliament, as a mere evasion of the statute, and 
 cannot be called 2i,n Abridgment (f). Tnjunctions 
 have accordingly been frequently granted, against 
 publications which were merely colourable abridg- 
 ments (g). But this, as observed by Lord Hard- 
 wicke, must not be carried too far, so as to restrain 
 
 (a) Wyatt v. Barnard, 3 V. cS: B. 77. Burnett v. Chetwood, 
 2 Meriv. 441. n. 
 
 {b) Wyatt V. Barnard, sup. 
 
 (c) Gary v. Longman, 1 East. 358. 
 
 (d) Mason v. IMurray, cit. ib, 
 
 ((?) Tonson v. Walker, cit. Burr. 2326. 
 (/) Gyles V. Wilcox, 3 Atk. 143. 
 
 (g) Bell V. Walker, 1 Bro. C. C. 451. Butterworth v. Robinson, 
 5 Ves. 709.
 
 INFRINGEMENT OF COPYRIGHT. 281 
 
 persons from makincr a real and fair abridgment, for Construction 
 
 ^ . , • 1 11 1 of the statute 
 
 abridgments may, witli great propriety, be called a ^ ^^^^^ 
 
 new book ; because not only the paper and print, 
 
 but the invention, learning, and judgment of the 
 author is shown in them, and in many cases are 
 extremely useful (a). Accordingly Sir T. Clarke 
 dismissed a bill for an injunction, to restrain the 
 publication in a magazine, of a fair abridgment of 
 Rasselas (b). 
 
 The same doctrine is also applied to extracts and Quotations, 
 quotations. There is no doubt, as observed by 
 Lord Eldon, tliat a man cannot, under pretence of 
 quotation, publish either the whole or part of another's 
 work, though he may use, what is in all cases very 
 difficult to define, yr/ir quotation (c). " That part of 
 the work," observed Lord EUenborough, " of one 
 author is found in another, is not of itself piracy, or 
 sufficient to support an action ; a man may fairly 
 adopt part of the work of another : he may so make 
 use of another's labours for the promotion of science, 
 and the benefit of the public ; but having done so, 
 the question will be, was the matter so taken used 
 fairly with that view, and without what I may term 
 the animus fur audi {d)." 
 
 But if an encyclopaedia or review copies so much 
 of a book as to serve as a substitute for it, this is an 
 
 (a) Gyles v. Wilcox, 2 Atk. 143. 
 
 (i) Dodsley v. Kinncrsley, Amb. 408. 
 
 (c) 17 Ves. 424'. Whittingham v. Wooler, Dec. 8, 1817. 
 
 {d) Gary v. Kearsley, .'5 Esp. N. P. C. 170. There is an Iikdh- 
 sistency between this passage and an observation of his lordship in 
 Roworth u. Wilks, 1 Campb. 97. that the intention to pirate is not 
 necessary, it is enough that the work complained of is in substance 
 a copy.
 
 282 
 
 INJUNCTIONS TO RKSTKAIN 
 
 Construction actionable violation of literary property, although 
 of Anne. " there may have been no intention to ])irate it (a). 
 
 Accordingly, in a late case, Lord Eldon directed an 
 
 action to try whether a work on architecture was 
 original, with a fair use of another work by quota- 
 tion and compilation (/>). 
 
 Sir W. D. Evans, in his valuable annotations upon 
 the statute relating to this branch of law, notices, 
 that writers on any detached subject, as the Bankrupt 
 Laws, the Poor Laws, the Game Laws, &c. have 
 never been molested in printing at large the sta- 
 tutes applicable to those respective subjects (c). 
 
 There is a certain species of publication, such as 
 maps, charts (^d), road-books, calendars, books of 
 chronology, tables of interest, &c. in w4iich it has 
 been frequently contended that no copyright could 
 exist; but though copyright cannot subsist in the 
 general subject^ it is clear that it may in the j)^i^^ticular 
 work (e). And although if the same skill, intel- 
 lect, and diligence, are applied in the second in- 
 stance, the public will receive nearly the same in- 
 formation from both works ; yet there is no doubt 
 that the latter publisher cannot on that account 
 spare himself the labour and expense of actual survey, 
 
 Copyright in 
 particular 
 work, 
 though not 
 in a general 
 subject. 
 
 {a) Roworth v. Wilks, 1 Campb. 91-. 
 {b) Wilkins v. Aikin, 17 Ves. 422. 
 
 (c) 2 Ev. Collect, pt. 3. cl. 1. 
 
 (d) The doubts upon these two sorts of publication were re- 
 moved by the 7 Geo. 3. c. 38. vide ante, p. 266. 
 
 (e) Sayre v. Moore, 1 East. 361. n. Trusler v. Murray, ib. 
 363. n. Carnan v. BoAvles, 2 Bro. C. C. 80. Cary v. Faden, 5 Ves. 
 
 24. Watson v. , cit. 8 Ves. 217. King v. Read, ib. 223. n. 
 
 Matthewson r. Stockdale, 12 Ves. 270. Longman v. Winchester, 
 16 Ves. 269. Wilkins v. Aikin, 17 Ves. 422.
 
 INFItlNOEMEXT OV COPYRIGHT. 283 
 
 and that a court of equity will interfere to prevent Comtmction 
 a mere republication of a work, which tlie labour Irj^li'J^ 
 
 and skill of another person has supplied to the 
 
 world (a). The piracy in these cases, has been ge- 
 nerally detected, by the circumstance of the latter 
 work, having copied the errors of the former. 
 
 If a ])ublication were to appear on tlie face of it, No copy- 
 to be a libel so gross as to affect the public morals, a ^'^^ '"^ ' ®' 
 jury would be directed to give no damages for a viola- 
 tion of the copyright (A). And it has been decided 
 that an action cannot be maintained to recover the 
 value of obscene or libellous prints (c). Upon the 
 same principle a court of equity, even upon the 
 submission in an answer, would not decree either an 
 injunction or an account of the profits of a work of 
 this nature (r/). Lord Eldon has thrown out an opi- 
 nion, that luider certain circuhistances an injunction 
 might be maintained, where a person having com- 
 posed a work of which he afterwards repents, wishes 
 to withhold it from the public (e). 
 
 Most of the cases of injunction to restrain pub- I'"^''^at'on 
 
 -' ^ of a work as 
 
 lications have arisen under circumstances, where, the pro- 
 
 under colour of a new work, the plaintiff is al- .j^ytiier or 
 leged to have republished and multiplied the copies -i^^ a lh)ii- 
 
 n 11 111 • I 1 - •/!• T^ 1 tiimation of 
 
 01 an old work belonguig to the plamtiit. It nap- another's 
 
 work. 
 
 (a) 16 Ves. 271. 
 {b) 2 Campb. 27. n. 
 
 (c) Fores v. Jones, 4 Esp. N. P. C. 97. Du Bost v. Bcresfonl, 
 2 Camp. 511. 
 
 (d) Walcot V. Walker, 7 Ves, 1. Southey v. Sherwood, 
 2 Meriv. 435. 
 
 (e) 2 Meriv. 438.
 
 284 INJUNCTIONS TO RESTRAIN 
 
 Covstrnctinn pens, liowever, not iinfrequcntly that an original 
 ofAune"^^^ work is published, and held forth to the world as 
 being a part or a continuation of a work, the reputa- 
 tion of which is already fixed; or as the production 
 of an author of celebrity, whose name is assumed to 
 give currency to the publication. As the injunction 
 which a court of equity grants in these instances is 
 not founded on copyright, and is closely connected 
 with determinations which cannot conveniently be 
 introduced in this place, the consideration of the 
 subject is deferred to the ensuing chapter. 
 
 Practice in The principle upon which a Court of Equity in- 
 Lquity. terposes for the protection of copyright, is the same 
 as that which has been already stated with respect 
 to patents. 
 Injunctions It appears that formerly the courts were unwilling 
 ^^anfecfex-^ ^^ interpose until the right had been previously 
 cept upon a established at law. In several early cases an in- 
 right. ^^^ junction was refused, except upon a plain legal 
 right (rt-). And even in more recent times, where 
 the plaintiff has not been able to show that pos- 
 session under colour of title, which has been already 
 alluded to, or where any considerable doubt arose 
 upon his title, the court has refused to interpose. 
 Thus, in the case of Basket t\ The University of 
 Cambridge, which was a question as to the right to 
 
 (a) Anon. 1 Vern. 120. Hills v. University of Oxford, ib. 275.
 
 INFRINGEMENT OF COPYRIGHT. 285 
 
 print acts of parliament, the university not having Practice in 
 been in the practice of exercising the right, Lord 
 Hardwicke refused to enjoin upon a doubtful ques- 
 tion in favour of those who never had tlie posses- 
 sion («). Lord Northington in one case refused to 
 interpose between two contending patents (b), and 
 in another, where the great question of the common 
 law right of an author to his own productions after 
 the expiration of the term allowed by the statute of 
 Anne, (upon which there was at that time no de- 
 cision at law,) came before him, he refused to inter- 
 pose before a trial at law, on the ground of the right 
 being so extremely doubtful (c). 
 
 Several of the iudojes, in the ffreat case of Millar 9^5^''^'?- 
 
 J o ' o tions ot the 
 
 V. Taylor, in speaking of the doctrine of a court of judges in 
 
 ., . , . . . , . , - • .1 • ^liliar r. 
 
 equity in granting injunctions to restrain the in- y-^yioi. ;^s to 
 fringement of copyright, observed, that they were the practice 
 
 , ,, . . . , of courts of 
 
 m the nature^.o^ injunctions to stay waste, and never equity. 
 granted but upon a clear legal title ; that if moved 
 for upon the filing of the bill, the right must appear 
 clearly by affidavit : if moved for after answer, the 
 right must be clearly admitted by the answer, or 
 not denied (g?). Lord Clare also, upon a bill brought 
 by the King's Printer in Ireland, to restrain the 
 publication of bibles, refused to grant an injunction 
 till the right had been established at law, although 
 there had been a possession of upwards of forty years 
 under colour of title (e). 
 
 (a) Cit. 6 Ves. 710. For the argument at Vaw and the certi- 
 ficate, vide 1 Bl. Rep. 105. 2 Burr. 661. 
 
 (i) Baskett v. Cunningham, 2 Eden, 137. 1 Bl. Rep. 370. 
 (c) Osborne v. Donaldson, Millar v. Donaldson, 2 Eden, 327. 
 {d) 4- Burr. 2325. 2328. 24-00. 2-i07. 
 (c) Grierson v. Jackson, Irish T. R. .^04-.
 
 286 iNjrxcTioNs to hesjuain 
 
 Practice in Lord Eldoii has, ii})on great consideration, denied 
 
 ^'"'^' the universality with which the above doctrine was 
 
 Present doc- laid down in tlie case of Millar v. Taylor. After 
 
 trnie as to, noticin"; tlic injunction granted in the case of Watt's 
 
 tlic inter- f? J o 
 
 ferenceot'a patent (rt), his Lordship observed, that there are 
 equity" \ here '"^^"7 cascs in which an injunction has been granted, 
 there has and continued to the hearing, under circumstances 
 session under which made the title extremely doubtful (^) ; and it 
 colour ot ^y^^y i^g deduced from the cases, that the court will 
 
 title. •^ _ .... 
 
 generally interpose by granting an injunction, and 
 will afterwards continue it to the hearing, where 
 there has been a possession by the plaintiff under 
 colour of title. Upon this ground, in one of the 
 earliest cases Sir J. Jekyll granted an injunction 
 before trial, upon the application of the King's 
 Printer in England to restrain the King's Printer in 
 Scotland from introducing into England books in 
 violation of the patent of the former ; and this order 
 was affirmed by Lord Macclesfield upon appeal (c). 
 In the case of the Universities of Oxford and Cam- 
 bridge v.. Richardson {d). Lord Eldon, in a great 
 measure upon the authority of this case, granted an 
 injunction to restrain the sale in England of bibles, 
 &c. printed by the King's Printer in Scotland, 
 although the King's Printer in England, who had a 
 concurrent right with the plaintiffs, did not choose 
 to join as a plaintiff. Li this case, notwithstanding 
 the doubt thrown upon the title of the plaintiffs to 
 enjoin, by the circumstance of the King's Printer re- 
 
 (fl) Ante, p. 261. 
 
 {b) 6 Ves. 707. 
 
 (c) 8th July, 1718, affirmed 2d May, 1719. cit. 6 Ves. 699. 
 
 (rf) (5 Vei, 689.
 
 INFRINGEMENT OF COPYRIGHT. 287 
 
 fusing to concur ; yet upon tlie clear illegality of Practice in 
 the conduct of the defendants, the injunction was '^'" ^' 
 
 continued till the hearing. In the case of Bruce v. 
 Bruce («) in the House of Lords, though it was 
 strongly contended at the bar, that injunctions pro- 
 ceeding upon legal right ought to have their founda- 
 tions upon legal title, receiving consummation by 
 legal judgment, yet Lord Eldon answered, that the 
 question had been already decided by Sir J. Jekyll 
 and Lord Macclesfield, and that the court, in granting 
 an injunction till the hearing, did not decide ulti- 
 mately upon the rights of the parties. Li the cases 
 which have been already alluded to {b), where the 
 court has restrained the publication of trials upon 
 indictment or impeachment before the Lords, and 
 the publication of the sessions paper, that interposi- 
 tion was founded upon the possession and exercise 
 of the exclusive right under colour of title. 
 
 Where the question depends upon the effect of an Injunction 
 
 .. • , , /'li-ii "ot granted 
 
 agreementy an injunction has been retused till re- where tlie 
 covery in an action (c) : so if the plaintift* has per- title depends 
 
 •^ ^ ^ * . . on the ertect 
 
 mitted persons to publish and sell the subject of his of an agree- 
 copyright without having interposed ; for though JJ^j^",!^ ^'lain- 
 this is no justification of their infringement of his tifthassut- 
 right, yet it will be a sufficient ground to induce a trnublish," 
 court of equity not to interfere, till it has been esta- 
 blished at law (flf). 
 
 (a) Cit. 8 Ves. 505. 
 {b) Ante, p. 271. 
 (c) Walcot V. Walker, 7 Ves. 1. 
 
 {d) Walcot V. Walker, 7 Ves. 1. Piatt v. Button, 19 Ves. 4-4-7. 
 Coop. 303.
 
 288 INJUNCTIONS TO IlKSTRAIN 
 
 Pracuce in 'fhe coiirt ill tliis, as in similar cases, will not 
 
 Eqidltj. ^ • n • J 1 
 
 grant an injunction without an ajfidavit of title ; and 
 
 Affidavit of the sanic rules with respect to afHdavits obtain that 
 
 title ncces- , i • ,i •. i i- i i 
 
 saiy, are observed in other cases ; it lias accordingly been 
 
 determined, that though an affidavit as to facts, filed 
 
 after the answer, may be read, yet that an affidavit 
 
 as to title cannot be received («). 
 
 Upon a bill Since the decisions at law, whicli have determined 
 
 by an as- ^]jg^j- ^^^ assiffninent of copyrio;ht can only be by 
 
 signee of _ ^ . . 
 
 eopyiight writing (/;), it seems that it will be necessary upon a 
 quired' that ^^^^ brought by ail assignee, to show by affidavit that 
 assignment such has been the case. But if the plaintiff happens 
 in writing, to be in the situation of assignee of an assignee, it 
 will be sufficient for him to show that the assign- 
 ment to himself was in writing, without tracing 
 the title through the mesne assignees from the 
 author (c). In an extremely recent case indeed an 
 injunction was obtained by assignees of copyright, 
 to whom the assignment was by parol. It appeared, 
 however, that some of the co-defendants had as- 
 signed the copyright to the plaintiffs, for which they 
 had received the purchase money, and upon the 
 faith of which they had permitted the plaintiffs to 
 print and publish (ri'). 
 
 In a recent application to restrain the publication 
 
 («) Piatt t'. Button, cit, sup. 
 
 {b) Ante, p. 264. before these decisions; an affidavit, that the 
 plaintiff had purchased, or legally acquired the copy, was held in- 
 sufficient, as it did not state that he purchased it of the author. 
 Gilliver v. Snaggs, 4 Vin. Ab. 278. 
 
 (c) Morris v. Kelly, cit. ante. 
 
 {d) Longman v. Oxberry, 28th November, 1820.
 
 INFRINGEMENT OF COPYRIGHT. ^89 
 
 of poems represented to be the work of Lord Byron, Practice in 
 
 the plaintiff being abroad, an injunction was granted ^"^ ^' 
 
 upon the affidavit of his agents, notice having been Affidavit of 
 given to the defendant, who refused to swear as to y"e"[g''j^^. 
 his belief to the contrary («). mitted, on 
 
 n-,, . . . , notice, where 
 
 Ine court sometimes, upon inspection and com- defendant 
 parison of the works of the plaintiff and defendant, refused to 
 
 , . . . \ T-> 1 swear to the 
 
 continues or dissolves the injunction (^). But the contrary. 
 
 usual practice is to refer it to the Master, to see if Reference to 
 
 the books are the same, or whether they differ in 
 
 any, and what respect (c). 
 
 Where a publication is of such a nature that an No decree 
 
 action could not be maintained upon it, the court jjcat^on'of an 
 
 will not decree an account even upon a submission improper 
 
 , , ,. nature. 
 
 in the answer («j. 
 
 It rarely happens that a suit to restrain the viola- 
 tion of copyright and for an account of the profits 
 is brought to a hearing. The plaintiff is generally 
 satisfied with having the injunction continued, and 
 it becomes unimportant to seek for an account of 
 the profits. The late case of Whittingham r. Wooler 
 was considered as being the first instance of a cause 
 of this nature having been actually brought to 
 hearing. The bill was dismissed with costs {e). 
 
 {a) Lord iiyron v. Johnston, 2 INIeriv. 29. 
 
 {b) Carnan t). Bowles, 2 Bro. C. C. 80. The order there made 
 for referring the publications to the Master being reversed by Lord 
 Thurlow, (5 Ves. 25.) Cary v. Faden, 5 \''cs. 21'. 
 
 ie) Jeftery u. Bowles, 1 Dick. 429. Trusler v. Comyns, cit. ib. 
 V. Leadbetter, 4 Ves. 681. 
 
 (rf) Walcot V. Walker, 7 Ves, 1 . Southey v. Sherwood, 2 Meriv. 
 435. 
 
 (<?) 4th December, 1817, the case of Manby /•. Owen, ante, 272, 
 Avas brought to a hearing. 
 
 U
 
 '^i{}0 SPKCIAL INJUNCTIONS AND 
 
 Special 
 IiijuHclinns. 
 
 CHAPTER XIV. 
 
 Of Special Injimctions and of Interlocutory Orders in 
 the Nature of Injimctions. 
 
 It has been already observed, that wherever a 
 plaintiff appears entitled to equitable relief, if it 
 consists in restraining the commission, or the con- 
 tinuance of some act of the defendant, a court 
 of equity administers that relief by injunction. In 
 the several cases which have been already treated 
 of, this jurisdiction is enforced by means of the pro- 
 cess of the writ of injunction. But as the known 
 forms of that remedy are by no means adapted to 
 every case in which the court has jurisdiction to in- 
 terpose, the prohibition has in numerous cases been 
 issued and conveyed in the shape merely of an order 
 in the nature of an injunction ; and as the court 
 treats the neglect or disobedience of all orders as a 
 contempt, and enforces the performance of them 
 by imprisonment, the object sought is equally at- 
 tained by an order of this nature as by a writ. The 
 distinction is consequently disregarded in practice, 
 and these orders, though not enforced by means of 
 the writ of injunction, have indiscriminately obtained 
 the name of Injimctions. 
 
 The present chapter will contain the various cases 
 in which this species of relief has been administered 
 by means cither of Special Injunctions upon writ.
 
 INTERLOCUTORY ORDERS. 291 
 
 or of Interlocutory Orders in the nature of injunc- Special 
 
 . ' Injunclions. 
 
 tions. _J_ 
 
 A court of equity will, if necessary, restrain the Sale of 
 sale of an estate: thus where a parol agreement to ^*'^^*^* 
 exchange estates, had been partly performed by tlie 
 defendant, and it was sworn that the defendant's 
 estate was actually advertised for sale, an injunction 
 was granted to restrain the sale on an e.v parte ap- 
 plication, upon certificate of bill tiled and affidavit, 
 although it was objected that the plaintiff might ap- 
 pear at the sale and give notice of his claim (a). 
 There is a prior case indeed where the Court of 
 Exchequer refused to interpose in this manner, 
 but the circumstances are somewhat different. 
 The plaintiff had conveyed his estate to the de- 
 fendants, in trust to sell, and it appeared upon the 
 motion that the defendants had advertised the pre- 
 mises for sale ; that the notice of the intended sale 
 was shorter than usual, and several circumstcinces 
 were stated to show that the plaintiff would sustain 
 great loss if the sale, which was to be the following 
 day, took place. The injunction, however, was re- 
 fused, and it was said not to be one of those cases 
 in which, on the ground of irreparable injury to the 
 plaintiff, the court proceeds in so summary a way : 
 that if the trustees should be guilty of a breach of 
 trust, in making the proposed sale, they would be 
 answerable to the plaintiff for the damages sus- 
 tained (Z>). 
 
 An order has been made to restrain a vendor, dc- Conveyance 
 
 ot legal 
 ' estate. 
 
 (rt) Curtis V. Marquis of Buckingliam, 3 V. <!?: B. IHS. 
 ib) Pechel v. Fowler, 2 Anst. 519. 
 
 u '2
 
 ■2(]<:> 
 
 •SPECIAL INJUNCTIONS AND 
 
 Special 
 
 Injunctions. 
 
 Purchaser 
 restrained 
 from paying 
 purchase 
 nioncy. 
 
 Negotiation 
 of bill of ex- 
 change. 
 
 fenclajit to a bill for a specific performance of an 
 agreement for sale of an estate, from conveying the 
 legal estate in the premises, on the ground that the 
 ])laintiff might thus be put to expense by the ne- 
 cessity of making another party, when the cause 
 might be just ready for hearing (a). 
 
 Upon a bill by creditors against the executor, 
 heir, and purchaser of a real estate, charged with 
 payment of debts, an injunction was granted to re- 
 strain the purchaser from paying the purchase money 
 to the heir, upon whom the estate had descended {b). 
 Upon the same ground it is also probable that a 
 purchaser would be restrained from paying the pur- 
 chase money to a devisee. It being established that 
 the statute of fraudulent devises has placed the heir 
 and devisee in the same situation ; making them 
 personally responsible after alienation of the estate, 
 and discharging bona Jide purchasers under them 
 from liability (c). 
 
 Where a negotiable security has been given for 
 an illegal consideration, or where, for any other 
 reason, the holder is not entitled to negotiate it (c?), 
 the court will grant an injunction to restrain its in- 
 dorsement or negotiation. This order has been even 
 granted in a case where an injunction to restrain 
 the holder from proceeding at law had been re- 
 fused (e). And as the plaintiff, if the holder were 
 
 negotiate it, could, in many cases, make no de- 
 
 (rt) Echliit y. Baldwin, 16 Ves. 267. 
 {b) Green v. Lowes, 3 Bro. C. C. 217. 
 
 (c) jNIatthews v. Jones, 2 Anst. 506. 
 
 (d) Exjmtie Harding, 1 Buck. C. B. 24-. 37. 
 
 (e) Smith c. Aykwell, 3 Atk. 566. Anib. 66.
 
 INTEllLOCUTOJtY OUUERS. tl'jS 
 
 fence in the hands of a bond Jide holder, the court Special 
 views the case in the nature of a bill to restrain ir- "J""'^-'^"''- 
 
 reparable mischief, and accordingly an injunction is 
 frequently granted on certificate of bill filed, and 
 (till the practice in that respect was amended («) ) 
 before service of the subpoena (^). The case is 
 however different from that of waste, in the circum- 
 stance that affidavits will not be permitted to be 
 read in contradiction to the answer (c). 
 
 An injunction has in like manner been granted to Indoisemtut 
 prevent an indorsement, on the certificate of the re- otic;:istn-ot' 
 gistry of a ship (rf). ^^^'P- 
 
 The court also grants injunctions to restrain the Tnuisier ot" 
 transfer of stock, or the receipt of bank annuities (e). 
 Thus an injunction was granted to restrain a transfer 
 of stock, standing in the name of a steward, upon 
 strong evidence by affidavit, that it was the produce 
 of his master's property 5 though it was refused as 
 to money standing in his name at his bankers. This 
 motion was granted in a great measure upon the 
 equity, that a person confounding funds of another 
 with his own, will be liable to the whole extent (y'). 
 
 (a) Post, Chapter XIV. 
 
 (b) Smith V. Aykwell, sup. Patrick v. Harrison, i3 Bro. C. C. 
 476. V. Blackwood, S Anst. 851. 
 
 (c) Berkeley v. Brymer, 9 Ves. 355. 
 
 {d) Thompson v. Smith, 1 Mad. Rep. 395. 
 
 (e) Terry v. Harrison, Bunb. 289. See more upon this subject, 
 post, p. 301. 
 
 (/) Lord Chedworth v. Edwards, 8 Ves. 46. It is said that in 
 a subsequent case Lord Eldon had, upon consultation with Lord 
 Ellenborough, thought that he had gone too far. Cox r. Paxton, 
 2 Mad. Ch.2d cd. 155.
 
 294" SPIX'IAL INJUNCTIONS AND 
 
 Special Formerly when it was necessary to restrain a trans- 
 
 fer of stock, the court required the plaintiff to make 
 tlie company, in whose books the stock was stand- 
 ing, a party, in order to restrain it from permitting 
 a transfer (^). In order to save this unnecessary ex- 
 pense, an act of parliament was passed (Z*), by which it 
 was provided, that any court of equity might order 
 the Bank of England, the East India Company, and 
 South Sea Company, to suffer a transfer of stock to 
 be made, or to pay dividends belonging to or stand- 
 ing in the names of any party to a servant, or issue 
 an injunction to restrain such transfer, although those 
 companies were not made parties. It was also 
 provided that in suits then depending, where the 
 company had put in an answer, not claiming any 
 interest in the stock required to be transferred, pro- 
 ceedings should be stopped, and the bill dismissed ; 
 but by a singular mistake in the penning of the act, 
 the latter words of the section are not prospective, 
 only extending to causes then depending ; the con- 
 sequence is, that those public bodies may still, 
 if the plaintiff thinks proper, be made parties (c). 
 Some check, however, is provided for an abuse 
 of this power, by a declaration of Sir J. Leach, that 
 
 (a) Lord Kenyon is stated to have been of opinion, that notice 
 to the Bank, without more, would operate as an injunction, 6 Yes. 
 
 772. But Lord Eldon has denied that, observing that the Bank 
 never would admit that, even upon a subpoena and bill filed, ib. 
 
 773. n. 
 
 {h) 39 and 4-0 Geo. 3. c. 36. 
 
 (c) Temple v. Bank of England, 6 Ves. 770. Attorney General 
 V. Gale, ib, n.
 
 INTERLOCUTOIIY OIIDEUS. i^95 
 
 where the Bank has been unnecessarily made a Special 
 party, the bill will be dismissed as against it with "-^"'"^ '""^' 
 costs («). 
 
 An application under this act to restrain the Bank, 
 or the other public companies mentioned in it, from 
 making a transfer, must be upon notice to the de- 
 fendants; or \vhere, from the necessity or urgency 
 of the case, notice cannot be given, the application 
 must be upon affidavit, verifying, that such urgency 
 and necessity exist (6). 
 
 It seems to be settled that courts of equity will Husband 
 not interpose in prejudice of the legal right of a ^^ffir"^ 
 husband over the wife's property, if such property equitable 
 
 i- ^ -^ i J. ^ property. 
 
 can be made available without resorting to a court 
 of equity (c). But injunctions have been granted 
 to restrain the husband from assigning or trans- 
 ferring her equitable property, until a proper settle- 
 ment has been made under the superintendance of 
 the court {d). 
 
 (a) Edridge v. Edridge, 3 Mad. Rep. 386, Skrymsher v. North- 
 cote, fit. ib. 
 
 (b) Hammond v. Maundrell, 6 Ves. 773. n. So before the act 
 an injunction could not be granted till after appearance, or where 
 ihe defendants were in contempt, and upon notice. Doolittle v. 
 Walton, '2 Dick. 442. 
 
 (c) 1 Fonb. on Eq. 29. 5tli ed. 1 Iloper on Husband and Wife, 
 256. 
 
 (d) Ellis V. Ellis, 1 Vin. Ah. Sup. 175. Roberts v. Roberts, 
 2 Cox, 422. There is a dictum upon this subject by Lord EUes- 
 mere, which is very much in the style of Twisden : a man having 
 run away with his wife against her friends' consent, sued for her 
 portion in Chancery ; his Lordship dismissed the bill, observing, 
 " he that steals flesh, let him provide bread how he can." Bignal 
 V. Langton, Prac. in Chancery uufoldcd, 50.
 
 296 
 
 SPKCIAL INJUNCTIONS AND 
 
 Special 
 lujtinctions. 
 
 Whethcr 
 luisband will 
 be restrained 
 from receiv- 
 iiif? the rents 
 of lands 
 covenanted 
 to be settled 
 to the sepa- 
 rate use of 
 the wife 
 where she 
 has eloped. 
 
 Husband re- 
 strained 
 from selling 
 wife's term 
 after a 
 divorce a 
 mensd et 
 thoro. 
 
 Tliere is a note in Dickens of a motion before 
 Lord Northington, in which he refused an injunc- 
 tion to restrain the husband from receiving the rents 
 of certain houses, which he had covenanted to settle 
 to the separate use of the wife. It was sworn on 
 the part of tlie husband, that she had eloped from 
 him and refused to return, although he had applied 
 to her to do so ; the motion was refused. Lord 
 Northington tliinking that if granted it would pro- 
 bably be the means of preventing her return («). 
 It is difficult, however, to support this decision, as 
 it seems to be settled upon the authorities, as col- 
 lected in a valuable treatise which has lately ap- 
 peared (^), that neither the wife's elopement only, 
 nor her elopement and adultery, deprive her of the 
 power of enforcing any of her legal or equitable 
 rights^ with the exception of the right to dower (c). 
 
 There is an Anonymous case of an earlier date, in 
 which the court was induced, by the importunity of 
 counsel, to grant an injunction, in restraint of the 
 legal rights of the husband, which can hardly be 
 justified. A. feme sole being possessed of a term of 
 years, married and was divorced a mensd et thoro, 
 and had alimony allowed for her support. The 
 husband intending to sell this term, the court was 
 induced to grant the injunction, for which it gave 
 this extraordinary reason, that though the marriage 
 
 (a) Lee v. Lee, Dick. 321. 806. 
 
 (b) 2 Roper on Husband and Wife, 137. 
 
 (c) Sydney v. Sydney, 3 P. W. 277. Blount v. Winter, ib. 
 Field V. Serres, 1 N. R. 121. This does not apply to the cases in 
 which the wife applies for o. favour, as a maintenance out of her 
 equitable property, &c. 2 Roper on Husband and Wife, 134.
 
 INTERLOCUTORY ORDERS. 297 
 
 continued, notwithstanding the divorce, yet the Special Jn- 
 husband did nothing as husband nor the xvije as ^ ^""^ 
 wife (a). 
 
 Where it appears by affidavit that an infant ward intercourse 
 is about to make a marriaa-c without the consent of ]^' I."^'^ 
 
 o com L re- 
 
 the court, an injunction will be granted not only to strained, 
 restrain the marriage, but also all communication 
 with the infant, and all intercourse, either personal 
 or by letter : and if the guardian is suspected of 
 countenancing the intended marriage, he will be 
 restrained from giving his consent without the leave 
 of the court (/>>). 
 
 The court has also in a remarkable manner exercised Father re- 
 its jurisdiction in regard to infants, by depriving the ^-^.J,^^ jj^^^j., 
 father, in many cases of immorality, ill-treatment, fVnng with 
 
 , , his child's 
 
 or even insolvency or his legal right to the custody education, 
 of his child (c) ; and accordingly, in several in- 
 stances fathers have been restrained from taking their 
 children abroad, or interfering in any manner with 
 their education (d). 
 
 An injunction will be granted to restrain the Sailing of 
 sailing of a ship. This was formerly attempted to 
 be done in the great cause of the East India Com- 
 
 (a) 9 Mod. 44. 
 
 (b) Lord Raymond's case, Forr. 58. Beard v. Travcrs, 1 Vcs. 
 313. Roach v. Garvan, 1 Dick. 88. 1 Ves. 157. Lord Noel v. 
 Somerset, cit. ib. Lord Shipbrook v. Lord Hinchinbrook, 2 Dick. 
 547. Hodgson t'. Watson, cit. ib. Pearce v. Crutchtield, 14 Ves. 
 206. Warter t;. Yorke, 19 Ves. 454. Tempest v. Ord, 1817. 
 
 (c) Butler v. Freeman, Amb. 301. Wilcox v. Drake, 2 Dick. 
 631. Powell V. Cleaver, ^ Bro. C. C. 499. Whitfield v. Hales, 12 
 Ves. 492. 
 
 {(l) Ex parte Warner, 4 Bro. C. C. 101. Crcuze v. Hunter, 
 2 Cox, 2i2. De Manncvillc i>. De Manneville, 10 Vcs. 52.
 
 ^98 SPECIAL INJUNCTIONS AND 
 
 Special In- paiiy t?. Sandys (a) ; but the court refused to make 
 junc tons. ^j^^ order. The instances of it in recent times are 
 frequent (/>). In a case which lias been before 
 alluded to, an injunction was granted on the ap- 
 plication of a part owner of an unascertained share, 
 to restrain the sailing of the ship till his share was 
 ascertained, and the proper security settled (c). In 
 a subsequent case, however, this application was 
 refused, where the ship was intended to sail the fol- 
 lowing day, and it did not appear that there were 
 any circumstances to account for the plaintiff's 
 delay {d). 
 Assignees All injunction may be granted on the application 
 
 divWe^d'^^"^ of a plaintiff in a bill for an account against a bank- 
 rupt, to restrain the assignees from making a dividend 
 till the account has been taken (e). 
 Removal of An injunction was granted by Lord Thurlow, 
 timber without any difficulty, to restrain the removal of 
 
 wrongiully j ^ ^ 
 
 cut. timber wrongfully cut (/"). An order to this pur- 
 
 pose is frequently inserted in the ordinary injunction 
 to stay waste, where the defendant appears to have 
 ah'eady committed waste. 
 Injunction An injunction has also been granted before answer 
 
 to restrain ^^ restrain presentation or induction to an eccle- 
 
 presentation ^ i i • • 
 
 or induction, siastical benefice («-). Lord Eldon has also mci- 
 dentally observed, that he should not hesitate to in- 
 
 (rt) 2 Ch. Ca. 165. 
 
 {b) Marasco v. Boiton, 2 Ves. 112. 
 
 (c) Haly V. Goodson, 2 Meriv. 77. 
 
 {d) Christie v. Craig, 2 Meriv. 137. 
 
 (c) Atkinson v. Plummer, 1811. 
 
 ( /) Anon. 1 Ves. jun. 93. 
 
 {g) Potter V. Chapman, 1 Dick. 146. Amb. 9S.
 
 INTERLOCUTORY ORDERS. 299 
 
 terpose by an injunction and the appointment of a Special In- 
 
 1 . 111. I. junctions. 
 
 receiver, in a case where it was clear that a party ■_ 
 
 had obtained an estate comprehending an advowson, 
 by fraud (a). So where an advowson is the subject 
 of a mortgage, a court of equity would probably 
 restrain the mortgagee from presenting (/;), upon 
 the same principle that it compels the mortgagee 
 to nominate such person as the mortgagor shall 
 appoint (c), and if the suit be instituted within 
 the statutable period {d) will disturb the presenta- 
 tion. 
 
 (a) 16 Ves. 70. Vide also, 2 Dick. 442. 
 
 {b) The author has not found an instance in which this has 
 actually been done ; it is stated, 2 Vern, 401. to have been done in 
 Jory V. Cox, but this, as appears from Mr. Finch's extract from 
 the register's book, is a mistake. Prec. Can. 71. 
 
 (c) Amhurst v. Dowling, 2 Vern. 401. Attorney General v. 
 Hesketh, ib. 549. Jory v. Cox, Prec. Can. 71. Gaily v. Selby, 
 Com. Rep. 343. 1 Stra. 403. Croft v. Powell, Com. Rep. 609. 
 Mackensie v. Robinson, 3 Atk. 559. Gubbins v. Creed, 2 Sch. & 
 Lef. 218. The case of Dyer u. Lord Craven, 2 Dick. 662. is pro- 
 bably misreported. Whether it would be otherwise where the 
 mortgage deed contains an express stipulation, that the mortgagee 
 should present upon avoidance, is doubtful. Lord King is re- 
 ported, in Gardiner v. Griffith, to have inclined to the opinion that 
 the mortgagee might, in such a case, present ; but the decision 
 both in Chancery and afterwards in the House of Lords (at least 
 according to Peere Williams, as the author has not been able to 
 find any report of the case in the House of Lords), Avas founded 
 on the circumstance of the bill having been brought seven months 
 after institution. Lord Hardwicke, in Mackensie v. Robinson, 
 seemed to be of opinion, that such a covenant would be void, 
 as being a stipulation for something more than principal and in- 
 tei*est. 
 
 {(l) Gardner v. Griffiths, 2 P. W. lOL Botelcr v. Allington, 
 3 Atk. 45J<. Vide also, Mutter v. Clianvd, 1 Mcriv. 475.
 
 300 
 
 SPECIAL INJUNCTIONS AND 
 
 Special In- 
 junctions. 
 
 Executor 
 
 wasting 
 
 assets. 
 
 Injunction 
 not granted 
 to restrain 
 debtors to 
 an estate 
 paying to a 
 pretended 
 executor. 
 
 If an executor or administrator eitlier through 
 misconduct (r/), or insolvency (/;), or bankruptcy (c), 
 arc bringing the property of tlie deceased into danger, 
 an injunction will be granted to restrain them from 
 getting in the assets, and a receiver will be ap- 
 pointed. This is a motion which is frequently granted 
 before ans'wer. Upon this principle, where a feme 
 covert was executrix, and her husband was in the 
 West Indies, she was restrained from getting in the 
 assets, and a receiver was appointed, because, as 
 the husband was out of the jurisdiction, if she had 
 wasted the assets the plaintiff would have had no 
 remedy (^). But the circumstance that an executor 
 is poor and in mean circumstances, is not a sufficient 
 ground for this application {e). 
 
 There is an early case before Lord Clarendon, in 
 which it appears that an injunction was granted to 
 restrain the debtors to a testator's estate from paying 
 any money to a pretended executor until his title to 
 the executorship had been settled by the Spiritual 
 Court (/"). This determination, however, (unless 
 there were more circumstances than those which 
 appear upon the report), is contrary to modern 
 practice. As it is perfectly established that a debtor 
 
 {a) Cutlet <o. Smith, Harrison's Ch. Pr. 5\o. Rogers c. Rogers, 
 1 Anst. ITi. Middleton v. Dodswell, 13 Ves. 266. Harrison v. 
 Cockerel!, 3 Meriv. 1. 
 
 [b) Scott V. Becher, 4 Price, 346. Mansfield v. Shaw, 3 Mad. 
 Rep. 100. 
 
 (c) Gladdon u. Stoneman, 1 Mad, Rep. 143. n. 
 {d) Taylor v. Allen, 2 Atk. 213. 
 
 (<?) Hathornthwaite v. Russel, 2 Atk. 126. Anon. 12 Ves. 4. 
 Howard v. Papera, 1 Mad. Rep. 142. 
 
 (_/) Smallpiece v. Anguish, 1 Ch. Ca. 75.
 
 INTERLOCUTOltY ORDERS. 301 
 
 to the estate cannot be made a party to a bill by a Special In- 
 creditor or legatee, unless he is colluding \vith the - ^ " 
 executor, or some case of Jraud or insolvency be Preservation 
 proved against the executor {a). ""penSute. 
 
 Courts of equity assume a concurrent jurisdiction 
 with the Ecclesiastical Courts in the preservation of 
 property, pendente lite^ and will accordingly restrain 
 parties from receiving the property of the deceased, 
 and appoint a receiver [b). This seems in the earlier 
 cases to have been done with little difficulty (c); but 
 as it was afterwards determined in the great case of 
 Walker v. Woollaston, upon a writ of error from 
 the Common Pleas, that an administrator pendente 
 lite might maintain actions at law (f/), a doubt arose 
 whether a Court of Equity would entertain a suit for 
 
 (g) Newlandf. Champion, 1 Ves. 105. Beckford u. Dorrington, 
 cit. 6 Ves. 74-9, Franklyn v. Feme, Barnard. Ch. Rep. 30. Elmslie 
 •6. M'Aulay, 3 Bro. C. C. 62^t. Utterson v. Mair, 4 Bro. C. C. 270. 
 2 Ves. jun. 95. Bowser v. Hughes, 1 Anst. 101. Doran v. Simp- 
 son, 4 Ves. 651. Troughton v. Binkes, 6 Ves. 572. Alsager c. 
 Rowley, ib. 71-9. Benfield i'. Solomons, 9 Ves. 77. Saxton v. 
 Davis, 18 Ves. 72. 1 Rose, 70. Burroughs v. Elton, 11 Ves. 29. 
 Talk r. Houklitch, 1 V. & B. 24-8. 
 
 (bj The leading case upon this subject is a determination in 
 the great cause of Powis v. Andrews, cit. 1 Atk. 286. Reported 
 upon an appeal from an order, overruling a demurrer. 2 Bro. 
 P. C. ed. Toml. 504. Vide also Morgan v. Harris, 2 Bro. C. C. 121. 
 Brown v. Duddridge, cit. ib. 
 
 (c) Wright V. Bluck, 1 Vern. 106. Dulwich College v. Johnson, 
 2 Vern. 49. There are also two precedents in the time of Lord 
 King, in one of which it is stated, tliat Lord Harcourt had fre- 
 quently made these orders merely on certificate of bill filed. JNIoli- 
 neaux v. Bird, Mose, 235. Villers v. Lady Osborn, ib. 308. They 
 are both anterior to Walker v. Woolaston. 
 
 . [d) 2 P. W. 576. Vide also. Wills v. Rich, 2 Atk. 285. Gal- 
 livan r. Evans, 1 Ba. !< Be. 191.
 
 30'2 
 
 SPECIAL INJUNCTIONS AND 
 
 Special In- 
 junclio7is. 
 
 the preservation of the property, until the litigation 
 in tlic Ecclesiastical Court had been determined. 
 Accordingly Lord Hardwicke, in one case («), which 
 was afterwards followed by Lord Erskine (Ji), re- 
 fused to interfere by the appointment of a receiver. 
 It appears, however, that Lord Hardwicke himself 
 had repeatedly recognised the existen.ce of this 
 jurisdiction (c), and that Lord Eldon had considered 
 the application as almost of course [d). The doc- 
 trine, however, in consequence of this determination 
 of Lord Erskine, received great consideration in 
 several cases before Lord Eldon and Sir T. Plumer, 
 by which it is now unquestionably settled, that a 
 court of equity has the jurisdiction to grant an in- 
 junction and receiver while a suit is depending in 
 the Ecclesiastical Court, although an administration, 
 pendente lite, might be there obtained (e). 
 
 This application will only be granted where a suit 
 is actually depending in the Ecclesiastical Court, in 
 the result of which the plaintiff is interested [f]. 
 
 We may here notice a practice, in a great mea- 
 sure connected wdth the preceding and the sub- 
 been granted sequent heads, and which has of late been fre- 
 of real 
 estates. quently adopted, viz. the appointment, upon mo- 
 
 la what 
 cases a re- 
 ceiver has 
 
 (a) Knight v. Duplessis, 1 Ves. 321. 
 
 {h) Richards v. Chave, 12 Ves. 462. 
 
 (c) Phipps V. Steward, 1 Atk. 285. Taylor v. Allen, 2 Atk. 
 213. Montgomery v. Clark, ib. 379. Smith v. Aykwell, 3 Atk. 
 5m. Barnsley v. Powell, 1 Ves. 290. 
 
 {d) King V. King, 6 Ves. 172. Walker v. Walker, 2 V. & B. 
 91 n. Liddell v. Liddell, cit. 12 Ves. 464. 
 
 {e) Atkinson v. Henshaw, 2 V. &c B. 85. Ball r, Oliver, ib. 96. 
 Vide also, Edmunds v. Bird, 1 V. & B. 542. 
 
 {/) Jones V. Jones, 3 Meriv. 174.
 
 INTERLOCUTORY ORDERS. 308 
 
 tion, of a receiver of the rents and profits of real Special In- 
 
 junctions. 
 
 estate. 
 
 The ordinary case in which this appHcation is Upon an 
 granted, is tliat alluded to by Lord Eklon in the jjlmand.*^ 
 late case of Davis v, the Duke of Marlborough (r/), 
 viz. where an equitable creditor, with an estate for 
 securing his debt, applies to a court of equity to give 
 him execution : where sucli a case is clearly shown, 
 said his lordship, the court will appoint areceivcr upon 
 motion (b). Thus where the purchaser of an estate, 
 subject to an equitable rent-charge, refused to ]3ay 
 it (c) ; or where, upon a creditor's bill for sale of real 
 estates, the heir at law being an infant, the parol de- 
 murred, a receiver was appointed [d). AVhere a bill 
 was filed by a creditor on behalf of himself and other 
 creditors, and a receiver was appointed. Lord Redes- 
 dale held, that the receiver should not be discharged 
 upon the consent of the plaintiff, against the consent 
 of an incumbrancer, who was a party ; and his lord- 
 ship seemed to be of opinion, that even where an in- 
 cumbrancer was not a party, or had proceeded in the 
 suit, and had been obliged to file a new bill, yet that 
 tlie court would not discharge the receiver, and 
 would direct that such bill should be taken as filed 
 at the time of the former (<?). •* 
 
 The court, it is said, interposes with reluctance to 
 
 (a) 1 Wils. Ch. Rep. 151. 154. 
 
 {b) Ibid. That it has been granted to an equitable mortgagee, 
 vide Curling r. Lord Leycestcr, 2 Mad. Ch. 234-. second edition. 
 
 (c) Pritchard v. Fleetwood, 1 iNIeriv. 51-. 
 
 (<f) Sweet V. Partridge, 1 Cox, 433. 2 Dick. 696. Docker v. 
 Horner, cit. ib. 
 
 {e) Largan v. Bowen, I Scli. il Lef. 206.
 
 sot 
 
 SPECTAL INJUNCTIONS AND 
 
 Special hi- 
 Jiiiiclions. 
 
 Court will 
 not interpose 
 against the 
 legal title, 
 except in a 
 case ot'fraud. 
 
 Othex- cases 
 in which a 
 receiver has 
 been ap- 
 pointed 
 
 appoint a receiver against the legal title, and re- 
 quires not only satisfactory proof upon affidavit, that 
 at the hearing the party would be turned out of 
 possession, but also some imminent danger to the 
 intermediate rents and profits, if possession should 
 not be taken, imde^r the care of the court («). How- 
 ever, though applications for receivers have been fre- 
 quently refused in these cases (Z*), yet on many oc- 
 casions, either upon consent (c), or upon circum- 
 stances of fraud (^), or where a defendant absconds 
 to avoid being served with process (e), the motion 
 has been granted before answer. 
 
 There are also a few other cases in which, under 
 similar circumstances, the court has appointed a 
 receiver upon motion. Thus, where upon a creditor's 
 bill, it appears by the answer that real estate must 
 be responsible, a receiver will be appointed (f). In 
 a prior case, even before the time for answering was 
 out, a tenant in common in possession was ordered 
 to give security for payment of the proportion of 
 the rents to his co-tenants, or in default, that a re- 
 ceiver should be appointed ; but it is said, that for 
 this purpose, the circumstances must amount to a 
 
 (a) 16 Ves. 70. 
 
 (b) Mordaunt v. Hooper, Amb. 311. Price v. Williams, 1 Ves. 
 jun. 401. Hugonin v. Bazeley, 13 Ves. 105. Lloyd v. Passing- 
 ham, 16 Ves. 59. and afterwards upon the effect of the evidence 
 taken in the cause, 3 Meriv, 697. 
 
 (c) Brodie v. Barry, 3 Meriv. 695. 
 
 (d) Compton v. Bearcroft, cit. 2 Bro. C. C. 157. Vann v. Barnett, 
 ib. Duckworth v. Trafford, 18 Ves. 283. 
 
 (e) Macguire v. Allen, 1 Ba. 6: Be, 75. 
 (/) Jones V. Pugh, 8 Ves. 71.
 
 INTERLOCUTORY ORDERS. o05 
 
 case of e^vclusion of the co-tenant («). In a recent Special In- 
 
 case, where a term had been directed to be sold for •[ ' 
 
 the purpose of raising portions, and a tenant for 
 life refused to produce the title-deeds, a receiver was 
 appointed upon motion (/>). 
 
 It has been observed by Lord Eldon, that wherever 
 the court has refused this motion, it lias turned upon 
 the circumstance that the party applying could not 
 state that he had, strictly speaking, an equitable 
 title : where he can show in substance that he had 
 an equitable title, the motion will be granted. Ac- 
 cordingly, in the case before him, his lordship granted 
 a motion for a receiver, before answer, upon a bill 
 of a purchaser pendente lite ; the suit having been 
 instituted by the wife of the vendor, claiming under 
 a settlement voluntary as being after marriage (c). 
 
 The court has not in any instance ])ut a receiver Receiver 
 upon a mortgaoree in possession, provided he could "'leie mon- 
 
 ^ c> ^ ^ ^ ^ gagee is in 
 
 swear that any thing was due to him (^) ; but where possession. 
 a mortgagee has not kept any account, tlie court 
 would probably grant an injunction (e). It has been 
 said, tliat a receiver cannot be appointed unless the 
 mortgagee is before the court [f). But in a case 
 before Lord Alvanley (^j. Sir H. Dash wood, who 
 had charged his estates to a considerable amount, 
 
 o 
 
 (c) Street v. Anderton, 4 Bro, C. C. -111-. Evelyn v. Evelyn, 
 1 Dick. 800. :Milbank v. Revett, 2 Meriv. 405. 
 
 {b) Brigstoke v. Mansel. 3 Mad. Rep. 47. 
 
 (c) Metcalfe r. Pulvertoft, 1 V. & B. 180, 
 
 (rf) Quarrell v. Bcckford, 13 Ves. 377. 
 
 (e) Codrington v. Parker, 16 Ves. 469. 
 
 (/) Price r. Williams, Coop. 31. Vide also Pliipps v. Bi.^liop of 
 Bath and Wells, 2 Dick. 608. 
 
 (g) Dalmcr v. Daslnvood, 2 Cox, ;)7S. 
 
 X
 
 SOG 
 
 SPECIAL INJUNCTIONS AND 
 
 Special In- 
 jitnctions. 
 
 Partner re- 
 strained 
 from inter- 
 meddling 
 with partner- 
 ship effects. 
 
 appointed Walker his steward or receiver of all his 
 estates, witli directions to pay the interest to the 
 mortgagees, and the snrplus of the rents to himself. 
 He afterwards granted several annuities, represent- 
 ing the estate to be free from incumbrances, and 
 charged them on the mortgaged premises. On a 
 bill filed by the annuitants against Sir H. Dashwood 
 and Walker, to which the prior incumbrancers were 
 not parties, an injunction was granted to restrain 
 Walker from paying any part of the rents to Sir H. 
 Dashwood, and a receiver was appointed, without 
 prejudice to the prior mortgagees taking possession: 
 where the mortgagee is not in possession, the court 
 will appoint a receiver, without prejudice to the right 
 of the mortgagee to obtain possession [a). 
 
 A court of equity will frequently interpose by 
 injunction, to restrain 2i partner from intermeddling 
 with the partnership effects, accepting or negotiating 
 bills in the name of the partnership^ &c. and, if neces- 
 sary, appoint a receiver (h) ; but there are cases in 
 which an injunction will be granted, although a 
 receiver is refused (c). This will not be done merely 
 on the ground of there being a dissolution of the 
 partnership ; it will be granted wherever there is a 
 violation of duty in the partner, or a breach of con- 
 tract {d). 
 
 (a) Bryan v. Cormick, 1 Cox, 4-22. 
 
 (fi) WilHams v. Bingley, cit. 2 Vern. 278. n. Philips v. Atkin- 
 son, 2 Bro. C. C. 272. Read v. Bowers 4 Bro. C. C. 14.0. Pea- 
 cock V. Peacock, 16 Ves. 49. 
 
 (c) Hartz V. Schrader, 8 Ves. 317. 
 
 (d) Harding v. Glover, 18 Ves. 281. Charlton ?'. Poulter, 19 
 Ves. 148. n.
 
 INTERLOCUTORY ORDERS. 307 
 
 The principle upon which a court of equity inter- Special In- 
 
 , . , , . 1 --1 junctions. 
 
 poses in this mode between partners, is merely with ■' 
 
 a view to the relief, by winding up and disposing of 
 the concern, and dividing the produce : it will not 
 lend itself to the purpose o? carrying on the concern. 
 The court refused upon any other principle to grant 
 an injunction, and appoint a manager in the Opera- 
 house case (a). 
 
 The court is, however, cautious (even when an- 
 cillary to a dissolution) in granting this relief: ac- 
 cordingly, under a bill by some partners in a joint 
 concern, on behalf of themselves and the others, 
 three hundred in number, for a dissolution, receiver, 
 &c. and an account, alleging mismanagement by the 
 managers ; the court refused to interfere by injunc- 
 tion, and the appointment of a receiver in the first 
 instance, until the parties had tried the means of 
 redress provided by the articles {h). 
 
 Mr. Wooddeson has preserved a note of a remark- Partner re- 
 able case, where the court seems to have qualmed aissohin- 
 the right of a partner to dissolve the partnership, partnership. 
 " An application," he observes, " was made some 
 years ago to the Court of Chancery, for an injunc- 
 tion to inhibit tlie defendants from dissolving a com- 
 mercial partnership ; the other side proposed to 
 defer it, as not having had time to answer the affi- 
 davits ; but it was insisted that this was in the na- 
 ture of an injunction to stay waste, and tliat irrc- 
 
 (rt) Waters v. Taylor, 15 Vcs. 10. Upon the same principle it 
 was determined that there could be no relief upon a bill by one 
 partner against another, which did not pray a dissolution. I'orman 
 V. Homfray, 2 V. & B. r>29. 
 
 (h) Carlen /•. Drury. 1 V. & B. l.li.
 
 '■^OS - SPECIAL INJUNCTIONS AND 
 
 Special In- parable damage might ensue. At leiigtli the court 
 ' ^ deferred it, the defendants undertakino- not to do 
 
 any thing prejudicial in the mean time ; but no 
 doubt arose as to the general propriety of tlie ap})li- 
 cation («)." 
 Injunctions The doctrine upon the subject of injunctions, in 
 breach of ^^^^ nature of specific 'performance^ granted to restrain 
 covenant. the violation of covenants, has already been noticed; 
 1st, in considering those cases where a tenant hold- 
 ing under an agreement for a lease, and consequently 
 having a right to a specific performance of that 
 agreement, has been considered entitled to an in- 
 junction to restrain the landlord from proceeding 
 against him in ejectment (^) ; and 2dly, among those 
 cases where a tenant has been restrained from acts, 
 in which, though in the nature of waste, a court of 
 equity has interposed, upon the principle that the 
 commission of them would be a violation of covenant, 
 attended with immediate damage to the plaintifl'. It 
 remains to notice a few cases M^hich could not con- 
 veniently be comprized under either of those heads. 
 The first case upon this subject, was one in which 
 the plaintiffs, whose house was so near the churcli 
 that the five o*clock bell in the morning disturbed 
 them, had come to an agreement with the parish 
 officers, that in consideration of their erecting a 
 cupola and clock, the five o'clock bell should not be 
 
 (a) Chavany v. Van Sommer, 1 1 Geo. 3. Wood Lee. \'ol. 3. 
 416. n. Mr. Swanston, in a note to the late case of Crawshay v. 
 Maule, which is full of the most rare and valuable learning upon 
 the subject of partnership, has given the entries of this case in the 
 Register's book. 1 Swa. 512. 
 
 (i) Ante, p. 23. el seq.
 
 INTERLOCUTORY ORDERS. 309 
 
 rung. The plaintiffs having executed their part of Special la- 
 the agreement, the bell was silenced for about two - ^"" 
 years ; but a new order of vestry having been ob- 
 tained for ringing it'. Lord Macclesfield granted an 
 injunction to stay the ringing till the hearing; and 
 the Lords Commissioners afterwards decreed, that 
 the injunction should continue during the lives of 
 the plaintiffs and the survivor («). In a case before 
 Lord Ilosslyn, an injunction was granted upon cer- 
 tificate of bill filed, and affidavit, to restrain the de- 
 fendants, who held under the proprietors of Vauxhall 
 Gardens, from keeping a house of public entertain- 
 ment, and selling refreshments and liquors, in viola- 
 tion of their covenant [b]. An injunction was refused 
 in the Exchequer, which was applied for on this 
 ground, and which seems to be in opposition to the 
 present practice : the defendant had contracted to 
 supply the plaintiffs with musical instruments, and 
 not to sell any on his own account ; he afterwards 
 sold some for himself, but the court refused to inter- 
 fere before the hearing (c). 
 
 Upon the principle of this doctrine, the case of 
 Morris v. Colman was determined before Lord 
 Eldon. Upon a bill filed for an execution of certain 
 articles of agreement relating to the Hayraai'kct 
 Theatre, an injunction was granted to restrain Mr. 
 Colman from acting as manager. Upon a motion to 
 dissolve, a question arose as to the validity of a clause 
 in the articles, restraining^ Mr. Colman from writing 
 
 (a) INIartin v. Nutkin, 2 P. W. 266. 
 
 {h) Barrett v. Blagrave, 5 Ves, 555. The injunction was after- 
 wards dissolved. 6 Ves. lOi. 
 
 (c) Longman v. Callitbrd, 3 Anst. 615.
 
 310 SPECIAL INJUNCTIONS AND 
 
 Special In- dramatic pieces at aii^^ other theatre : Lord Eldon 
 
 junctions. considered such a covenant as legal, and compared 
 
 it to covenants restraining trade within jiarticular 
 limits, or partners from carrying on the same trade 
 for their private benefit (a). 
 
 Lord Eldon, on a recent occasion, alluding to this 
 determination, observed, that this was an agreement 
 which he had been very unwilling to enforce. It was 
 not that he would write for the Haymarket Theatre, 
 but that he would not wi'ite for any other theatre : 
 that it appeared to him that the court could enforce 
 that agreement, by restraining him from writing for 
 any other theatre. The court could not compel him 
 to write for the Haymarket Theatre ; but it did the 
 only thing in its power, it induced him indirectly to 
 do one thing, by prohibiting him to do another (b). 
 The case which contains these observations, was 
 attempted to be brought within the application of 
 them. The defendant had agreed to compose and 
 write reports of cases determined in the Exchequer, 
 to be printed and published by the plaintiffs for a 
 stipulated remuneration : Lord Eldon, in dissolving 
 an injunction which had been obtained to restrain 
 the defendant from printing and publishing with 
 other persons, observed, that he could not compel 
 the defendant to remain in the Exchequer and take 
 notes for the plaintiffs, and that there was nothing 
 in the agreement by which he could indirectly induce 
 him to do so, by preventing him from writing for 
 any other person (c). 
 
 (a) Morris v. Column, 18 Ves. 437. 
 
 {b) 2 Wils. Ch. Rep. 164. 
 
 (c) Clarke v. Price, 2 Wils. Ch. Rep. 157.
 
 INTERLOCUTORY ORDERS. 311 
 
 The author has not been able to find any reported Special In- 
 case in which the court has interposed by injunction 7""^ ^'^"^' 
 to restrain the breach of a covenant entered into by Wliethcr tlie 
 the vendor, upon the sale of the goodwill of a shop r^s|rain the 
 or premises, not to carry on the same trade. The brcacliofa 
 doctrine upon the subjects of covenants in restraint upon sale of 
 of trade, has been much discussed both at law and goodwill, not 
 equity. It is fully established, that although general same trade. 
 covenants in restraint of trade are void, yet that a 
 particular covenant, when upon siifficioit considera- 
 tion, is valid («) ; but a mere sale of the good will of 
 a trade, without any further provision, will not pre- 
 vent the vendor from immediately setting up the 
 same trade next door (b). It may be inferred from 
 Lord Eldon's observations in Crutwell v. Lye (c), 
 that there is no reasonable objection to a court of 
 equity interfering in this, as in similar cases, by in- 
 junction, upon the ground of breach of covenant. In 
 the case alluded to, the absence of covenant upon this 
 subject was relied upon as one of the grounds upon 
 which the court refused an injunction to restrain a 
 bankrupt, wlio had obtained his certificate, from 
 setting up a similar trade to that which, together 
 with the goodwill, had been sold under the com- 
 mission by his assignees. What might be the effect 
 of a covenant of this nature by a bankrupt, whose 
 property had been sold by his assignees with the 
 goodwill, is a curious question, and was alluded to 
 
 (a) Mitchel r. Reynolds, 1 P. W. ISl. Chcsman r. Nainhy 
 Stra. 739. 3 Bro. P. C. 31-9. Ed. Toiiil. 1. 23t. Gale v rtccd, 
 8 East. 80. 
 
 (6) Shackle v. Baker, II' Ve.s. IGS. 
 
 (r) 17 Yes. .3:5.3.
 
 .'U'^ SPECIAL INJUNCTIONS AND 
 
 Special hi- ])y Lord Eldon in that case, as one uj)on which he 
 
 junctions. 
 
 ' , gave no opinion. 
 
 Injunction The court will not interfere to restrain the viola- 
 
 whcre a ^^^" ^^ ^" agreement, of which, from the nature of 
 
 specific per- the Subject, there can be no decree for a specific 
 could not be performance ; accordingly an injunction was refused 
 decreed, ^^ restrain the defendant from imparting the secret 
 of a medical preparation : either the subject, it was 
 observed, was a secret, or none ; if a secret, w^hat 
 signified an injunction? The court possessed no 
 means on any occasion of determining whether it 
 had or had not been violated ; if not a secret, there 
 was no ground for interfering [a). 
 Solicitor re- An injunction of a singular nature was granted 
 acting for a ^^^ ^^^^ great cause of Lord Cholmondeley v. Lord 
 party \n a Clinton, to restrain a solicitor, who had been in 
 partnership with the attorney of the defendant, from 
 becoming the solicitor in that cause for the plain- 
 tiff (Z^). 
 
 The foundation of this motion was, that the per- 
 son sought to be restrained from so acting, w^as 
 possessed of knowledge w^hicli would give to the 
 person employing him an undue advantage : where 
 this circumstance did not exist, a motion for the 
 same purpose was refused in the Exchequer. In 
 that case a solicitor had acted to a certain extent 
 
 (a) Newbery v. James, 2 Meriv. 446. A'ide also Williams v. 
 Williams, 3 Meriv. 160. In a case before Lord Macclesfield, a value 
 Avas refused to be set upon a chemical secret, Avhicli a freeman of 
 the city of London had communicated to one of his children upon 
 his death-bed, and which the bill attempted to bring into the estate. 
 Anon. 113. Ilarg. MSS. 174'. 
 
 {b) Coop. 80. 
 
 suit.
 
 INTERLOCCTOIIY ORDERS. 313 
 
 only, for parties defendants in an amicable suit in Special Li- 
 
 , , T 1 1 • • junctions. 
 
 Chancery ; the court, however, dissolved an jnjunc- -^ 
 
 tion to restrain him from acting in a cause where 
 a bill had been filed by some of those defendants 
 against others of them, the solicitor making affidavit 
 that he was not confidentially possessed of any secrets 
 which might be used to the prejudice of such other 
 defendants, or had knowledge of any facts unknown 
 to his clients [a). 
 
 Upon the well known jurisdiction of a court of Enjojment 
 equity to protect the enjoyment of specific chattels, "i^^tt^jj^plo!^ 
 which cannot be the subject of compensation in tected by in- 
 
 , • . -11 . ^ ^ A. • iunction. 
 
 damages, an injunction has been granted to restrain 
 the disposition of them when taken in execution (b). 
 In another case a defendant, before he had prayed 
 time to answer, was restrained from selling certain 
 diamonds to which the plaintiff claimed to be en- 
 titled (c). 
 
 Injunctions have been also granted to restrain a injunction to 
 defendant from publishing a work, or carrying on a restrain a 
 
 1 o ' JO person trom 
 
 trade, under a fraudulent representation that such publishing a 
 work or trade was that of the plaintiff. Thus in the '^l.J^rrj'ing on 
 case of Hoffff v. Kirby (r/), the defendant was re- atrade under 
 
 , ^ ^ , , . . another's 
 
 strained from publishing a magazine as a continua- ,name. 
 tion of the plaintiff's magazine in numbers. So also 
 where the proprietor of a newspaper bequeathed to 
 his widow the benefit of that trade, subject to a trust 
 for maintaining and educating her family, and she 
 
 (a) Robinson v. Mullettj 4 Price, 353. 
 (/>) Lady Arundell v. Pliipps, 10 Vcs. 139. 
 (c) Tonnins v. Prout, 1 Dick. 387. ^'idc also Ximcncs r. Franco, 
 ib. 149. 
 
 {rl) 8 Vcs. 215.
 
 314 SPECIAL INJUNCTIONS AND 
 
 Special In- having formed an attachment for the foreman, assisted 
 
 junctions. ■. . . i t i • • i i 
 
 ' nim in pubhshing a paper with the same name, an 
 
 injunction was granted upon the application of the 
 executors (a). An injunction was also in a recent 
 case obtained, to restrain the publication of poems, 
 represented to be the work of Lord Byron (Z>). 
 
 In the case of Crutwell v. Lye, however (c), an in- 
 junction was refused to restrain a person who had sold 
 a trade with the goodwill, from setting up a similar 
 trade; there being no express covenant nor Jraud, 
 hy representing it as a continuation of the old trade, 
 nor any conduct on the part of the defendant which 
 might create a confidence in others that he would 
 not trade again. 
 
 An injunction, however, has been granted in one 
 case, to restrain a manufacturer of blacking from 
 using labels in imitation of those employed by the 
 plaintiff (^) ; in another where the defendant having 
 sold a medicine to the plaintiff, set up another under 
 a similar description, and in his advertisement adopted 
 verses which had been attached to the original me- 
 dicine (e). But where a person does not assume the 
 name and character of another, he will not be pre- 
 vented from selling an article under the same title {f)\ 
 and Lord Hardwicke refused to restrain a defendant 
 from using the Great Mogul as a stamp upon his 
 cards, upon a suggestion that the plaintiff had the 
 
 (a) Keenew. Harris, cit. 17 Ves. 342. 
 
 (i) Lord Byron r. Johnston, 2 Meriv. 29. 
 
 (c) 17 Ves. 335. 
 
 {d) Day u. Day. 1816. 
 
 (e) Sedon x\ Senate, cit. 2 V. <5t B. 220. 
 
 ( /) Canham v. Jones, 2 V. c-^; B. 218.
 
 INTERLOCUTORY ORDERS. 315 
 
 sole riffbt : he said he knew no instance of restrain- Special In- 
 
 ° . , junctions. 
 
 ing one tradesman from usmg the same mark as 
 
 another, and that there was no more objection to it 
 than to an innkeeper setting up the same sign («). 
 
 Where persons are authorised by act of parUament I'^rsons 
 to cut a canal, and their funds turn out to be in- canal, rc- 
 sufficient for the completion of the proposed luider- p'r'^ "ending" 
 takini]j : if the owner of an estate, through which wlieie tlieir 
 
 1 1 • 1 1 . 1 1 . • 1 i. I'unds are in- 
 
 the legislature has given to the speculators a right sufficient, 
 to carry the canal, can show that the persons so 
 authorised are unable to complete their work, and 
 is prompt in his application for relief, the court will 
 not permit the further prosecution of that under- 
 taking (^) ; but where the speculators are not cutting 
 through the lands of the plaintiff, this application 
 would probably fail. An injunction was lately re- 
 fused to restrain persons authorised by act of par- 
 liament to cut a canal (and required to appropriate 
 certain sums for the construction and maintenance 
 of works to protect a harbour, in which the canal 
 was intended to terminate), from cutting through 
 thei7' own lands at a distance from the harbour, there 
 being at the time an insufficiency of funds for the 
 completion of the undertaking, pending an appli- 
 cation to parliament for further powers to le\y 
 money (c). 
 
 We may conclude this chapter by noticing a hasty No iDjuiic- 
 dictum of Lord EUenborough's, which lias attracted j,(rain libel, 
 considerable attention. In the case of Du 13ost v. 
 
 (a) Blanchard v. Hill, 2 y\tk. ISt. 
 
 (i) Agar V. Regent's Canal Company, cit. 1 Swa. '250. Coop. 77. 
 (c) ^Nlayor and Burgesses of King's Lynn v. Peniberton, 1 t>\va. 
 244..
 
 316 SPECIAL INJUNCTIONS AND 
 
 Special In- Bercsford («), wliicli was an action for destroying 
 ■ ^""''^'^"^- a picture, that was publicly exhibited, highly de- 
 famatory of a gentleman and his wife, who was the 
 defendant's sister; that great judge is reported to 
 have used the following expression : " If it was a 
 libel upon the persons introduced into it, the law 
 cannot consider it valuable as a picture. Upon an 
 application to the Lord Chancellor, he would have 
 granted an injunction against its exhibition, and the 
 plaintiff was both civilly and criminally liable for 
 having exhibited it." This doctrine is stated to 
 have caused at the time considerable astonishment 
 in the minds of all the practitioners of the courts of 
 equity {h) ; the proposition is, indeed, obviously 
 erroneous. There is, perhaps, but one instance in 
 the books, of any judge having maintained the exist- 
 ence of a power in the Court of Chancery of restrain- 
 ing publications on any other ground, but that of pro- 
 perty and copyright ; and it was then done in lan- 
 guage so strange and unconstitutional, as to carry 
 with it, its own refutation. Upon a motion to re- 
 strain the publication of a translation of the Archaeo- 
 logia Sacra, Lord Macclesfield, after noticing that a 
 translation was not within the prohibition of the 
 statute of Anne, is reported nevertheless to have 
 said, that this being a book which, to his knowledge 
 (having read it in his study), contained strange 
 notions, intended by the author to be concealed 
 from the vulgar, in the Latin language, in which 
 lano'Liajre it could not do much hurt, the learned 
 V being better able to judge of it; he thought it pro- 
 
 («) 2 Camp. 511. 
 
 {h) '20 How. St. Tr. 799.
 
 INTERLOCUTORY ORDERS. 817 
 
 per to grant an injunction to the printing and pub- Special In- 
 blishing it in English : that lie looked upon it that . /""'^ ^°"^' 
 this court had a superintendcncy over all books, and 
 might, in a summary way, restrain the printing or 
 publishing any that contained reflections on religion 
 or morality («). 
 
 It is remarkable that no mention is made by Hud- 
 son of any such preventive jurisdiction, even in the 
 Star Chamber : there is an instance, indeed, in which 
 the court of Kind's Bench assumed to itself this 
 power, in Charles II. "s time, under Scroggs ; but it 
 was so immediately reprobated, as to form afterwards 
 one of the articles of impeachment against him. 
 The court, of which he was the head, actually made, 
 and caused to be served upon the publisher and 
 divers printers, a rule of court prohibiting the print- 
 ing and publication, by any person whatsoever, of a 
 book entitled " the Weekly Packet of Advice from 
 Rome, or the History of Popery (^)." 
 
 So little has it even been supposed that such a 
 jurisdiction (if it ever legally existed any where) 
 belonged to the court of Chancery, that it would be 
 difficult to find any authority in which it has been 
 in terms denied. The following observation of 
 Lord Eldon, in the late case of Southey v. Sherwood, 
 is the only trace which the author has been able to 
 discover of any allusion to this notion. In that case 
 his lordship, after noticing the doctrine by which a 
 court of equity refuses an injunction to restrain the 
 publication of works of such a nature as that an 
 
 {a) Burnett v. Chctwood, 2 Meriv. HI. n. 
 {!>) 8 How. St. Tr. 198.
 
 318 SPECIAL INJUNCTIONS AND 
 
 Special In- action of damages cannot be maintained for them, 
 
 junctions. i i i t • i • 
 
 proceeded to observe : " It is very true that in some 
 
 cases it may operate so as to multiply copies of mis- 
 chievous publications, by the refusal of the court to 
 interfere by restraining them ; but to this my answer 
 is, that sitting here as a judge upon a mere question 
 of property, I have nothing to do with the nature of 
 the property, nor with the conduct of the parties, 
 except as it relates to their civil interests ; and if 
 the publication be mischievous, either on the part 
 of the author or of the bookseller, it is not my busi- 
 ness to interfere with it. In the case now before 
 the court, the application made by the plaintiff is on 
 the ground only of his civil interest, and this is the 
 proper place for such an application («)." 
 
 Orders to There is a species of interlocutory order that has 
 
 stay pro- of late become extremely frequent, which may here 
 ceedings y i ' j 
 
 pending an be noticed, viz. the order granted upon motion to 
 appea . ^^^^ proceedings pending an appeal. In a court of 
 
 law, a writ of error in a civil action stays all pro- 
 ceedings, upon the ground that the record is, in 
 theory, in the superior court (b). It seems also to 
 have been formerly understood by the House of 
 Lords, that an appeal from a court of equity also 
 stayed all further proceedings ; but by a late order 
 of the house, founded on what appeared to have (in 
 contradiction to this notion) become the general 
 practice, it has been settled, that an appeal from a 
 court of equity does not stay execution of the de- 
 cree (c). It has accordingly become usual for ap- 
 
 (a) 2 Meriv.440, 44^1. 
 
 {h) 15 Ves. 182. 
 
 (c) 12 Aug. 1807. 1.) Ves. 184.
 
 INTERLOCUTORY ORDERS. 319 
 
 plications, under various circumstances, to be made Special In- 
 to stay proceedings pending an appeal («) ; these, - ^"'' 
 
 however, are not in general favoured, and it has 
 been said, that execution will be suffered to proceed, 
 unless the court sees, that if it should turn out to 
 be wrong, the party cannot be set right again (/>>). 
 These applications appear to have been made in- 
 discriminately to the superior or to the inferior 
 court ; but it is settled by the most recent deter- 
 minations, that this motion ought to be made to the 
 superior court. 
 
 {a) Gwyn v. Lethbridge, \^ Ves. 585. Huguenin u. Basely, 
 15 Ves. 182. Willan v. Willan, 16 Ves. 89. Waldo v. Cayley, ib. 
 206. Monkhousc v. Corporation of Bedford, 17 Ves. 381. Way 
 V. Foy, 18 Ves. 452. Macnaghten v. Bochm, 1 Jac. & Walk. 48. 
 
 {h) 17 Ves. 382.
 
 3'20 
 
 PRACTICE IN SPECIAL INJUNCTIONS. 
 
 Practice in 
 Special Tii- 
 Juiictionf;. 
 
 CHAPTER XV. 
 
 How ol) 
 tained. 
 
 Where 
 granted 
 against a 
 
 Practice of Courts of Equity in graiiting^ continuing, 
 and dissolving Special Iiyunctions. 
 
 A Special Tnjimctioii is usually obtained upon 
 motion on certificate of bill filed, and affidavit veri- 
 fying the material circumstances. But in the vaca- 
 tion, when the court does not sit, and no motion 
 can consequently be made, a judge of a court of 
 equity will grant an injunction upon petition (<?), 
 with affidavit and certificate of bill filed ; and in 
 an extremely urgent case, an injunction has been 
 granted upon petition and affidavit, although no bill 
 has been on the file (J)). 
 
 Several of the rules which hav^e been already 
 noticed wdth regard to injunctions to stay proceed- 
 ^arr^ "°^ ^ iiigs at law, obtain also in the practice adopted by 
 the courts in granting Special Injunctions. Thus an 
 injunction will not be granted to restrain a person 
 who is not a party to the cause. There are, how- 
 ever, exceptions to this rule, as well as to the rule 
 with regard to injunctions to stay proceedings at 
 law (c). Accordingly an injunction has been granted 
 to restrain a tenant in possession, though no party 
 
 (a) Wy. Pr. Reg. 252. Smith v. Clark, 2 Dick. 4^55. Nichols 
 V. Kearsley, ib. 6^5. Chamberlayne v. Dummer, 1 Bro. C.C. 166. 
 
 (b) Mayor of London v. Bolt, 5 Ves. 130. 
 (r) Ante, p. -kS.
 
 PRACTICE IN SPECIAL INJUNCTIONS. -^'^l 
 
 to the cause, from committing waste (a). Tenants Practice 
 upon a lunatic's estate have been restrained, on pe- ^j,,juncthns. 
 
 tition, from cutting down timber, though no bill 
 
 has been filed (^). The following case upon this 
 point is also stated to have been decided by Lord 
 Camden. The plaintiff was the lord of a manor in 
 Oxfordshire, upon which the defendants claimed a 
 right to estovers, and under that right cut down 
 timber in one day to the value of .€400 : the plain- 
 tiff filed a bill, and obtained an injunction to stay 
 waste ; upon its being served, their attorney recom- 
 mended the defendants to desist from cutting down 
 any more timber, but advised other tenants to cut, 
 upon which Lord Camden granted an injunction to 
 stay waste against persons not parties (c). We have 
 seen that a solicitor, who was no party in the cause, 
 has, under circumstances, been restrained by an 
 interlocutory order, from acting for one of the 
 parties {d). 
 
 Li general also, if the bill does not specificallv Injunctions 
 
 . . . , 1 • -rr* -11 1 • 1 1 iirauted, 
 
 pray an injunction, the plamtiii will not be entitled tiioimh not 
 
 to move for one, under the prayer for general re- specifically 
 
 n n prayed. 
 lief(e). But Lord Eldon has observed, that if after 
 
 a decree for an account under a bill for a foreclosure, 
 
 the mortgagor were to attempt to cut timber, the 
 
 court would enjoin him, though there was no prayer; 
 
 and his Lordship, in the case before him, where 
 
 there had been a decree for a sale of part of the 
 
 (a) AUorney General v. Duke of Ancaster, 1 Dick. 68, 
 
 (b) In re Crcagh, 1 T5a. Sc lie. 108. 
 
 (c) Cit. 2 Dick. 670. 
 {d) Ante, p. 312. 
 
 (r) Ante, p. iS. 
 
 Y
 
 U>0 
 
 PRACTICE JN SPECIAL INJUNCTIONS. 
 
 Piniiicc 
 ill Sj)ec/rtl 
 lujiDiciions. 
 
 Service of 
 subp(jena ne- 
 cessary. 
 
 After ap- 
 jiearance 
 notice 
 necessary. 
 
 Injunction 
 granted on 
 ex pmie ap- 
 plication 
 after ap- 
 pearance. 
 
 estate, from whicli there was an appeal, restrained 
 the defendant from cutting timber in the mean- 
 time («). 
 
 By the 4 Anne, c. 16. s. 22. a subpoena may issue 
 upon a bill for an injunction to stay waste before 
 the bill is actually tiled, though it must be served 
 before the return (h). This, however, is rarely 
 done ; and indeed till lately, a practice had become 
 very general, not to serve any subpcena at all (c). 
 This irregularity has, however, been reformed, by 
 a determination of Lord Eldon {d) ; and at present 
 if an injunction were to be obtained without service 
 of the subpoena, it would be dissolved. In the case 
 alluded to, this was not done, as the party had been 
 misled by the practice which had before obtained ; 
 but Lord Eldon permitted the defendants to show 
 cause upon affidavits, considering the right to an 
 answer to have been waived by the omission to 
 serve the subpoena. 
 
 After the defendant has appeared, a motion for a 
 special injunction can, in general, only be made upon 
 notice (e). 
 
 Sometimes, however, in cases in the nature of 
 waste, the court will interfere upon an ex parte ap- 
 plication by injunction after appearance : but if this 
 is done, care must be taken, not to insert in the 
 order, the usual allegation that the defendant has not 
 
 (a) Wright r. Atkyns, 1 V. & B. 3l4. 
 {b) Vide ante, p. 49. 
 
 (c) Patrick v. Harrison, 3 Bro. C. C. 476. 
 
 3 Anst. 851. 
 
 {d) Attorney General v. Nichol, 16 Ves. 338. 
 {e) Marasco v. Boiton, 2 Ves. 1 12. 
 
 • — V. Blackwood,
 
 PRACTICE IX SPECIAL INJUXCTIOXS. S^^S 
 
 appeared («). In one case the defendant had ap- Practice 
 peared the day before the motion was made. Lord ^jnjuncthns. 
 
 Eldon, however, granted an injunction, observing, 
 
 that if a person about to commit waste, and against 
 whom a bill was filed, could, by appearing tiie 
 evening before the motion, prevent it, he would 
 get two days, during which he might cut down 
 the timber. His Lordship added, that })erhaps it 
 might be different where the defendant had ap- 
 peared long enough to have enabled the plaintiff to 
 give notice [b). 
 
 As to the affidavits necessary to obtain an in- Affidavits as 
 junction, it is in general necessary that a plaintiff ^^ ^'^^^• 
 should swear particularly to his title. An injunction 
 has been refused where a plaintiff merely swore upon 
 his information and belief that he was a remainder 
 man under a settlement (c). An averment that the 
 plaintiff is entitled in fee simple has also been con- 
 sidered insufficient, as being too general^ he must 
 set out his title particularh) (d) ; and if the plaintiff's 
 right appears to be doubtjid, the court always refuses 
 to interfere (<?). 
 
 Upon the same principle it is required, that upon 
 an ed' parte application to restrain the violation of a 
 patent right, the plaintiff should swear as to his 
 belief at the time of making the application (and not 
 as to his belief at the time he obtained the patent) 
 
 (a) Harrison v. Cockerell, 3 Mcriv. 1. 
 
 (b) AUer v. Jones, 15 Ves. GO.j. 
 
 (c) Davis V. Leo, 1 Ves. 78 1-. 
 
 {d) Wliitelegg v. Whitelcg<r, 1 Bro. (\ C. 57. 
 {e) Field v. Jackson, 2 Dick. 599. Fansliaw r. Rotheram, lb. 
 
 Y '2
 
 :V2i< PRACTici; in spfxial injunctions. 
 
 Practice that lie is the original inventor («). 80 upon a bill 
 ^Injunctions. ^^ restrain an infringement of copyright by an as- 
 
 signee of the author, the phiintiff, (since the recent 
 
 determinations at law,) must show that the assign- 
 ment was in writing ; though it seems that in case 
 he is the assignee of an assignee, it will be sufficient 
 to state tlie assignment under which he himself 
 claims, witliout producing the assignment to his 
 assignor (b). We may also refer to former passages 
 to " show, how far, possession under colour of title, 
 will induce a court of equity to interfere by in- 
 junction, before a trial at law to restrain violations 
 of patent and copyright (c). 
 Affidavits as The plaintiff should also by his affidavit state 
 some actual violation of his rights, or a sufficient 
 ground to apprehend it. Thus, in cases of waste, an 
 affidavit merely as to his apprehension or belief that 
 the defendant intends to commit waste, without 
 stating any grounds for it, will not be sufficient; 
 there must either be some fact, like the marking 
 trees, sending a surveyor, or some threat [d). 
 Service. The practice of the court, upon the subject both 
 
 of service of the subpoena, and of the service of in- 
 j unctions, and the cases in which the necessity for 
 the latter has been dispensed with, either from the 
 circumstance of the party having been present and 
 having heard the order, or from his being otlierwise 
 
 (a) 2 Meriv. 624. 
 
 {h) Ante, p. 288. 
 
 (c) Ante, p. 260, 261. 28i, 285. 
 
 {d) Gibson v. Smith, 2 Atk. 182. Barnard. Ch. Rep. 427. 
 Jackson v. Cator, 5 Ves. 688. Hanson v. Gardiner, 7 A'^es. 309. 
 Riches v. Lance, ib. 417. Hannay v. M'Entire, 11 Ves. 54.
 
 PRACTICE IN SPECIAL INJUNCTIONS. 3^25 
 
 cognizant that it had been pronounced (tf), have been Practice 
 so fully considered in a former part of this treatise, ^j„jun^]\,„s, 
 
 that it will be sufficient to refer to those passages, 
 
 as the doctrine upon the subject is the same in e very- 
 case of a breach of an order of injunction (6). 
 
 The orders pronounced by the court in cases of Form of 
 
 . 1 . . , . , , . , . rt. . order for in- 
 
 special injunctions have been various at diiterent junction, 
 periods (c). It will be observed, from several of the 
 precedents in the appendix to this work, that the 
 form frequently adopted enjoined the party " till 
 further order (d).*' In some cases the injunction 
 has been till " ajjpearance and further order (e),** 
 in others " till answer and further order {/).** But 
 the form at present used, and which is established 
 by a rule laid down by Lord Eldon (^>), is " till an- 
 
 («) Since the former part of this treatise has been printed, tlie 
 doctrine upon this subject has been carried one step further by 
 Lord Eldon, In the case of Vansando v. Rose, 6th December, 
 1820, a defendant was committed for a breach of an injunction; 
 though the only notice which he had of it was from the informa- 
 tion of the plaintiff's solicitor. 
 
 (b) Ante, p. 49 et seq. 66 et seq. 
 
 (c) It is said in Gary to have been usual to grant injunctions on 
 surmises, with a proviso si ita sit. Fodringliam v. Chomely, Gary, 
 53. Aschughe u. Shelton. ib. 5Q. 
 
 (d) A pp. IX. X. Lane v. Newdigate, 10 Ves. 192. 
 
 (e) Lord Grey de Wilton v. Saxoii, 6 Ves. 106. 
 
 (/) Potter V. Chapman, 1 Dick. 116. Robinson v. Lord Byron, 
 1 Bro. C. G. 588. 2 Dick. 703. It is by mistake stated in INIr. 
 Cox's report to have been till " answer or further order." Reg. 
 Lib. B. 1781. fol. 143. Drury v. Molins, 6 Ves. 328. Lord Tarn- 
 worth V. Lord Ferrers, ib. 119. 
 
 (g) The author is indebted for this information, and that con- 
 tained in the next paragraph, to the registrar. No notice is taken 
 of the point in any of the modern books of practice: all the most 
 recent orders will, however, be found to be expressed accordingly.
 
 326 
 
 PRACTICE IN SPECIAL INJUNCTIONS. 
 
 Practice 
 in Special 
 Injunctions. 
 
 How dis- 
 solved. 
 
 As to read- 
 ing affidavits 
 in contradic- 
 tion to the 
 answer. 
 
 Not read in 
 support of 
 title. 
 
 swer or fiirtlicr order." This has been adopted, a5> 
 givinn- defendant the liberty to move, if necessary, 
 to dissolve, upon affidavit. 
 
 In whatever terms an injunction may be conveyed, 
 it is never dissolved, except upon motion in open 
 court. But occasionally, in extremely pressing 
 cases, the Lord Chancellor has, in the vacation, 
 appointed a special hearing at his house for this 
 purpose. 
 
 There are few points of practice which have been 
 more discussed, or which are more satisfactorily 
 established, than that by which the right of the 
 plaintiff has been established, to read affidavits upon 
 the motion to dissolve, in contradiction to the de- 
 fendant's answer. It has been already shown that 
 it is a rule, to which there is no exception, that affi- 
 davits are never permitted to be read in contradic- 
 tion to the answer, upon the motion to dissolve an 
 injunction to stay proceedings at law («). This doc- 
 trine is also applied, to the motion to dissolve an in- 
 junction, to stay the indorsement or negotiation of 
 a bill of exchange (Ji). 
 
 Upon motions to continue or dissolve injunctions 
 to stay waste, or acts in the nature of waste, the 
 court is also equally strict in not permitting affi- 
 davits to be read in contradiction to the answer in 
 support of the plaintiff's title. But as to facts of 
 'waste or 7nismanagement the court will permit affi- 
 davits to be read. In the case of Lady Strathmore 
 v, Bowes (c) an application was made by the plaintiff 
 
 (a) Ante, p. ]08. 
 
 (b) Ante, p. lOS. 
 
 (c) 2 Bro. C.C. 88. 1 Cox, 263. 2 Dick, 673.
 
 PRACTICE IN SPECIAL INJUNCTIONS. 3'2'7 
 
 for this purpose. Lord Keiiyon, liowever, felt so Practice 
 much doubt upon the subject, that he ordered the ^i,t'jimctions. 
 
 motion to stand over for precedents ; and though 
 
 there are several in which tliis was done («) (some 
 of which were produced), he was unwilhng to sanc- 
 tion the practice, without the concurrence of the 
 Chancellor (/>). 
 
 There is, however, no doubt of the adinissibiUty May be read 
 
 r. ^ 1 . n ■ ,, ^ as to facts. 
 
 of affidavits to acts of waste , or in cases ot partner- 
 ship, in support of allegations o^ mismanagement {c). 
 
 But where, upon a motion for an injunction after Affidavits 
 
 . - may be read 
 
 appearance, the defendant applies that it may stand where de- 
 over, in order to file affidavits in opposition, and [^'"^^^"t 
 
 ' ^ ^ having ob- 
 
 then, instead of filing an affidavit, puts in an an- tained time 
 swer ; Lord Eldon has observed, that he considers ^.^^^ Ju^s'in'' 
 this a different case, from that in whicli tlie answer an answer 
 comes in regularly in time : and has said, tluit he 
 should look at the answer as an affidavit, and allow 
 the original affidavit to be read in contradiction to 
 
 it(^0- 
 
 But although an injunction obtained on affidavits Injunciion 
 
 filed before the answer may be sustained by affidavits ori"rinallv 
 filed subsequently, yet an injunction cannot be ori- obtained 
 
 „ , . , 1 ^Y^ 1 • T ^ ViVion aHida- 
 
 ginaily obtained on such amdavits. In a recent case, ^\^^ ^led 
 where this was attempted, Lord Eldon observed, that ^^''^■•" i">'>»'^''. 
 the allegations in the bill are general : if the })laintiff 
 
 (a) Gibbs v. Cole, 3 P. W. S.S.j. Ryder v. Bentham, 1 \'es. .Gl-.'l. 
 Attorney General v. Bentham, cit, 1 Cox, 26 I. Mount t'. Fenner, 
 cit. 2 Dick. 676. 
 
 (b) 1 Cox, 2W. 
 
 (c) Charlton v. Poulter, 19 Ves. 11-8. n. Peacock v. Peacock, 
 16 \c&. \9. Lawson v. IMorgan, I Price, oO'i. 
 
 {(i) Morphett v. Jones, 19 \e%. \j50.
 
 3'28 PRACTICE IN SPECIAL INJUNCTIONS. 
 
 Practice at oiicG Supports tliem by the statement of particular 
 Injimctions. ^^^^^ Oil affidavit, the defendant possesses an op- 
 
 portunity of explaining or denying those facts by 
 
 his answer; but if the plaintiff reserves his affidavits 
 till the answer is filed, he deals not altogetlier fiArly 
 with the defendant, who is entitled, before the an- 
 swer, to be apprized of the points on which the 
 plaintiff rests his case (a). Affidavits of acts done 
 subsequent to the filing of the bill, are clearly ad- 
 missible (Z>) . 
 
 Affidavits Jq the above noticed case of Ladv Strathmore v. 
 
 may be read . ,^ ^ ^ ■, " n -r 
 
 on the part iiowes, 111 coiisequeuce or the doubts of Lord Ken- 
 
 ot defendant y^^^ ^he defendants, in order to avoid the delay, 
 
 in opposition '' '' 
 
 to affidavits Consented that the plaintiff should read affidavits : 
 dictionTo' ^"^ accordingly affidavits were read on both sides. 
 the answer. Mr. Dickens expresses considerable surprise at the 
 plaintiff's consenting that the defendant should read 
 affidavits in support of the answer, and observes, 
 that it was a thing never before heard of. But 
 although there is no actual decision upon this point, 
 yet there can be no doubt but that affidavits are 
 admissible, upon the part of the defendant, in op- 
 position to the affidavits filed in contradiction to the 
 answer. Lord Eldon, in alluding to this point, has 
 observed (c), that the case of Lady Strathmore v, 
 Bowes proved the correctness of the doctrine, that 
 the defendant may read affidavits in support of the 
 answer; for the injunction was afterwards dissolved 
 
 (fl) Smythe v. Smythe, 1 Swanst. 252. That affidavits may be 
 read in support of an allegation in the bill, not contradicted by the 
 answer, vide ante, p. 109. 
 
 {b) lb. 
 
 (c) 19 Vcs. 1.51.
 
 PRACTICE IN SPECIAL INJUNCTIONS. 3^29 
 
 on the ground that the trees, cut by the defendant, Practice 
 had been marked by Lord Strathmore, the phiintifF's '[[.-f, Actions 
 
 first husband ; and it would have been a consider- 
 
 able hardship to a man having title, if the court 
 should permit that fact to be tried on one hand by 
 affidavit," aTid not asserted by affidavit on the other. 
 
 Upon the motion being made to dissolve, the Order upon 
 court will either absolutely dissolve the injunction, "1"^'*^" ^^ 
 
 •^ J dissolve. 
 
 or continue it to the hearing, or (subject to an ac- 
 count kept in the meantime,) will direct an issue, or 
 an action, or a case for the opinion of a court of 
 law. If the court of law certifies against the plain- 
 tiff's title, yet the cause must still proceed to a 
 hearing. In a recent case a motion was made to 
 dismiss the bill with costs, by analogy to the prac- 
 tice on bills for specific performance, where the 
 Master's report is adverse to the plaintiff; the ap- 
 plication was ha^^Ttrver refused («). 
 
 If the answer admits that the defendant has com- "NVliere con- 
 
 . ,, .^. . TIN tinucd to the 
 
 mitted waste (however trming it may have been), or hearing. 
 has threatened to commit it, the injunction will be 
 continued till the hearing (Z>). 
 
 It is no objection to the granting or continuing No objection 
 an injunction, that the case is of such a nature, that [ion"i"at""^' 
 an account cannot be decreed upon it. Whatever there cannot 
 
 bciiniiC" 
 
 difficulty there may be upon the question, which has eount. 
 been considered in a former page (c), as to the right 
 to an account where there has been no injunction 
 prayed, there is none to the converse of that pro- 
 
 {a) Brooke v. Clarke, 1 Swanst. 550. 
 
 (b) Packington v. Packington, I Dick. 101. Attorney General 
 V. Burrows, ib. 128. S. C. Anon. 3 Atk. 4-85. 
 
 (c) Ante, p. 20G. cl scij. '
 
 330 
 
 rilACTJCE IN SPECIAL INJUNCTIONS. 
 
 Practice 
 in Special 
 Injunctiuns. 
 
 Court will 
 not, upon 
 motion, di- 
 rect an act 
 to be done. 
 
 position. Lord Eldon, in the case of the Universities 
 of Oxford and Cambridge v, Richardson («), where 
 this question was agitated, suggested several cases 
 clearly illustrative of this doctrine ; where, either 
 from difficulties arising from tlie complex nature of 
 the title of several plaintiffs interested in the same 
 account ; or from the trifling value of the injury 
 actually committed; or from the circumstance that 
 the evil sought to be restrained, has as yet only 
 been threatened by the defendant, and not com- 
 menced ; an account could not be taken, though the 
 plaintiff' would clearly be entitled to an injunction. 
 It will be observed also, that many of the cases 
 which have been considered in the preceding chap- 
 ter, where inj.unctions have been granted, are of 
 such a nature, that an account could not be given in 
 respect of them. 
 
 It seems to be established that the court will not, 
 upon motion, direct the defendant to perfo7in an 
 act. There is indeed a passage in one of the MS. 
 reports of the case of Worden v. Ellers, which have 
 been before alluded to (/>), from whence it may be 
 inferred to have been Lord Hardwicke*s opinion, 
 that the court might, upon motion, order the de- 
 fendant to pull down a building which was clearly a 
 nuisance to the plaintiff. And there is an early 
 case in Tothill of an order to show cause why a de- 
 fendant, who had ploughed up ancient pasture land, 
 should not lay it down again in grass (c). The 
 contrary doctrine is, however, firmly decided. In 
 
 (a) 6 Ves. 701. 705. 7J6. 
 
 (b) Ante, p. 199. 
 
 (c) Rolls V. Miller, Tjth. lil.
 
 PRACTICE IN SPECIAL INJUNCTION'S. SSI 
 
 the case of Ryder v. Bentham («), Lord Hardwicke, Practice 
 upon a motion for an order to pull down certain ^i„]uncthns. 
 
 blinds, observed, that he never knew an order to 
 
 pull down any thing on motion. Lord Thurlow, in 
 a subsequent case, upon a motion to restrain a party 
 from digging a ditch, and to compel him to put 
 every thing in the same state in which it was before, 
 by filling up so much as he had already dug, refused 
 the latter part of the motion (h). So in a subse- 
 quent case Lord Eldon refused an order specifically 
 to repair the banks of a canal, stop-gates, and other 
 works (c). 
 
 But though the court will not directly, and in 
 terms, compel the performance of an act upon mo- 
 tion, yet there are many cases, in which the effect 
 may be indirectly obtained, by an order merely re- 
 strictive. Thus in the case of llobinson v. Lord 
 Byron the effect was obtained, by the order re- 
 straining the defendant, from preventing the water 
 from flowing in such regular quantities as it liad 
 ordinarily done before the day on which the alleged 
 nuisance commenced (g^). In Lane v. Newdigate a 
 similar effect was obtained by an order, restraining 
 the defendant from impeding the plaintiff from 
 navigating, using, and enjoying, by continuing to 
 keep the canals, banks, or works out of repair, by 
 diverting the water, or preventing it by the use of 
 locks from remaining in the canals, or by continuing 
 the removal of a stop-gate. 
 
 {a) 1 Vcs. 51-3. 
 
 (6) Anon. 1 Ves. jun. 140. 
 
 (t) Lane v. Newdigate, 10 Vcs. 192. 
 
 (f/) 1 Bro. C. C. ISy.
 
 332 
 
 INJUNCTIONS TO ItESTIlAIN 
 
 Injundions 
 lo quid fos- 
 sessioii before 
 tJtc hearinor. 
 
 CHAPTER XVI. 
 
 Injunctions to restrain vexatious Litigation, 
 
 Injunctions 
 to quiet pos- 
 session be- 
 fore the 
 hearing. 
 
 In what 
 
 cases 
 
 granted. 
 
 The practice of granting Injunctions to quiet the 
 possession before the hearing, was once extremely 
 common. Hudson relates that in ancient times the 
 Star Chamoer began every case with an injunction 
 to settle the possession in peace till the cause was 
 determined ; of which, he says, there were not 
 fewer than a thousand precedents (a). The earlier 
 books of chancery practice are also full of pre- 
 cedents, in which this course was adopted (h) ; and 
 an express provision was made, for the regulation of 
 the practice upon this head, by one of Lord Bacon's 
 ordinances (c). 
 
 The object of this species of motion, was to re- 
 strain the party against whom the application was 
 made, from taking^om^fe possessioii of the premises 
 pending the litigation. This injunction used only 
 to be granted to quiet possession of corporeal here- 
 
 to) Treat, on the Star Chamber, 2 Coll. Jurid. 196. 
 
 (h) Pulvertost v. Pulvertost, Cary, 52. Sapcote v. Newport, 
 ib. {5Q. Harrison v. Cholmely, ib. 72. Boult v. Blunt, ib. Lord 
 Baltimore v. Heynell;, Toth, 115. Delahay v. Pottenden, ib, 147. 
 Stationers' Company v. Simcox, ib. Lady Poines' case, 1 Vern. 
 156. Lord Falmouth v. Innis, Mose. 89. Foster v. Saul, ib. 
 Filewood v. Palmer, ib, 171. Baker v. Rogers, Sel. Ca. Ch. 7i. 
 
 (c) Beames's Orders, 15.
 
 VEXATIOUS LITIGATION. oSS 
 
 ditaments: an application to extend it to the profits Injunctions 
 of an office has been refused {a). session before 
 
 To obtain this order, it was required, by analogy tf'e hearing. 
 to the statutes of forcible entry, that the party ap- 
 plying should have had peaceable possession of the 
 premises by the space of three years before the 
 filing of the bill, of which the court required to be 
 satisfied upon oath. The party was also required to 
 swear that his interest was not determined by for- 
 feiture, surrender, or other lawful means ; and ac- 
 cording to the practice prior to the time of Lord 
 Bacon, a bond was required to be entered into by 
 the party to the amount of JIO as a security, that 
 the information so given was true (^b). 
 
 This species of relief appears to have been granted Granted 
 
 • 1- • • 1 -1 1 • •/!• 1 r J either to 
 
 mdiscrimmately, either to a plaintin or a deiena- plaintiff or 
 ant(c). In one case, where tlje defendant w^as in defendant, 
 possession at the time the bill was filed, and the 
 plaintiff had entered upon him, the defendant ob- 
 tained an order that either he might have an in- 
 junction for possession, or that the plaintiff should 
 show cause, why his bill should not be dismissed {d). 
 In another case, a bill was actually dismissed, because 
 the plaintiff had entered into the lands, while his 
 suit was depending, and thereby made himself his 
 own judge (<?). 
 
 This practice has lately fallen entirely into disuse, r^Ilen into 
 
 ^ •' '' disuse in 
 
 England. 
 
 (a) Anon. 3 Ch. Rep. 12. Purefoy v. Jones, ib. 39. 
 
 (b) 170. Harg. MSS. 228. wlicre a number of early prceedents 
 of this species of writ are collected. 
 
 (c) Hawkes v. Champion, Cary, 51. Dowche v. IVrrot, ib. 63. 
 {(I) Hill V. Portman, Cary, 110. 
 
 {c) Illis V. Morris, Prac. in Chancery unibldcd, 27.
 
 334 
 
 INJUNCTIONS TO RKSTIIAIN 
 
 Injunctions 
 to (jiiiet pos- 
 session before 
 the hearinrr. 
 
 Injunctions 
 to quiet pos- 
 session be- 
 fore hearing 
 conunon in 
 Ireland. 
 
 at least in Eiiglaiid: the last instance of a deter- 
 mination upon it, is in the case of Hughes v. Morden 
 College («), where Lord Hardwicke granted an in- 
 junction upon the application of the plaintiff (who 
 was a lessee of the trustees of the college) to re- 
 strain the commissioners of the turnpike, (to whom 
 the trustees had granted leave to dig gravel,) from 
 forcibly entering the plaintiff's garden and digging 
 gravel in it. 
 
 Bills of this nature are said to be still in use in 
 Ireland (h). The following history of the practice 
 upon them, is given in a note to the last edition of 
 Brown's Parliamentary Cases (c). After noticing 
 the provisions of the statutes of forcible entry, which 
 have been introduced into that country, it is stated 
 that instead of resorting to a justice of the peace, 
 or preferring an indictment, in order to repel the 
 intruder, and to get restitution of possession, the 
 practice has usually obtained, of resorting to the 
 jurisdiction of courts of equity, by exhibiting what 
 is termed a possessory bill (a measure peculiar to 
 that country) (d) ; which alleges a peaceable triennial 
 possession in the person so dispossessed, or in his 
 ancestors, or in those whose estate he hath ; also a 
 force committed and the title still in being, and 
 neither prays process to answer, nor any relief, but 
 an injunction only to restore and quiet the posses- 
 sion ; and on certificate of the bill being filed, and 
 on affidavit of the possession and ouster, the in- 
 
 (a) 1 Ves. 188. 
 
 (Z>) Goodeson v. Gallatin, 1 Dick. 4-55. 
 
 (c) Ed. Toml. vol. 2. p. 28. 
 
 (d) This we see is an error.
 
 VEXATIOUS LITIGATIOX. SSj 
 
 junction issues of course to the defendant (a), who Injunctions 
 
 1 • . • to ouiet pos- 
 
 is made to answer upon personal niterrogatories, as ^^^./f^/, if^j-ore 
 in the case of a contempt ; and in defliult of clearing ^^^ fiearing. 
 his contempt, he is attached until payment of the 
 costs ; and when the cause comes to a hearing, an 
 injunction issues to the sheriff to establish the pos- 
 session, till eviction by due course of law. But as 
 this hearing determmes the possession only, and that 
 in a summary way, till eviction by due course of 
 law, the right is considered as a matter collateral 
 and extrinsic, and is neither entered into nor pre- 
 judiced, but reserved for more solemn decision in a 
 proper suit to be instituted for that purpose. 
 
 There are two precedents of appeals from Ireland 
 (neitlier of them of a very ancient date), in which 
 the subject came under the consideration ol' the 
 House of Lords (Z»). 
 
 An injunction of this nature does not prevent the Effect of, 
 defendant from suing at law, making a lease, or j^igsoivcd. 
 taking a distress ; and it may be dissolved if the 
 plaintiff delays his suit (c). 
 
 That which is commonly called a bill of Inter- Definition of 
 
 pleader, is defined by the Practical Register to be a 
 
 (a) The practice is stated to have been the same in England, 
 and an injunction has even been granted before service of the 
 subpoena to answer. Pearce v. Penrose, Bunb. 110. 
 
 {b) Vernon v. City of Dublin, in 1733, 4 Bro. P. C. Ed. Tom). 
 398. Edgeworth v. Edgcworth, in 1766, 2 ib. 27. 
 
 (c) H Vin. Ab. 233. citing P. Ix. C 215. Curs. Can. -I.')!. 
 
 interpleader.
 
 '336 INJUiXCTIONS TO RESTRAIN 
 
 Interpleader, bill exhibited by a third person, who not knowing 
 to whom he ought of right to render a debt or duty, 
 or pay his rent, fears he may be hurt by some of the 
 claimants, and therefore prays that they may inter- 
 plead, so that the court may judge to whom the 
 thing belongs, and he be thereby rendered safe on 
 the payment {a). And this he may do whether suits 
 be actually commenced against him in law or in 
 equity, or he is only in danger of being sued or 
 molested by the parties {b). 
 Who may The generality of bills of interpleader are by 
 
 hit r )" \r P^^'sons standing in the situation of stakeholders, as 
 
 {a) Lord C. B. Gilbert, in his Forum Romanum, (p. 47.) has 
 compared our practice of interpleader in equity to the intervention 
 of the civil law. He must, however, be understood to apply this 
 observation to a process totally dissimilar from any thing which is 
 at present known by the term interpleader. As for instance, 
 where a person as mortgagor files a bill against the mortgagee to 
 redeem, and another person who has a right to redeem prefers 
 his bill against both, to remove the first plaintiS" and to redeem the 
 defendant. This and all the other cases which he cites (except 
 one) though resembling the doctrine o^ inte7-vention, are by no 
 means cases of interpleader. The practice adopted by our courts 
 of equity, is more probably taken from the doctrine of interpleader 
 at common law, from whence it has received its name, than from 
 that of intervention in the civil : no tvtO processes indeed can be 
 more dissimilar. The tertius in our interpleader in equity, pro- 
 fesses to have no interest in the subject, and calls upon the parties, 
 who allege that they have, to come forward and discuss their 
 claims ; the tertius of the civil law, on the other hand, asserts a 
 right in himself to the subject, which two other persons are at the 
 time actually contesting, and insists upon his right to join the 
 discussion. The reader will find the doctrine of intervention 
 (which may perhaps be found useful in many cases in equity) very 
 elaborately discussed by Galll. Pract. Obs. Lib. 1. 69. 
 
 (b) Pr. Reg. Ed. Wy. 78. Har. Ch. Pr. 1-5.
 
 VEXATIOUS LITIGATION. 3^7 
 
 auctioneers, agents, factors, &c. («). Where a house Interpleader. 
 which had been insured was burnt down, and the 
 insurance company were both sued by the tenant in 
 equity and by the landlord at law, they were con- 
 sidered entitled to file a bill of interpleader {b). 
 
 The true principle upon which the relief given in Principle of 
 cases of interpleader, is founded, is the right which the relief 
 
 the party has to protection, not from beino^ com- ^''O'" ^}'^^ ^ 
 ,. \ ^ 1- II vexation of 
 
 pelled to pay, but from the vexation attending all several suits. 
 
 the suits, Vv'hich may possibly be instituted against 
 
 him (c). The determination in the Duke of Bolton 
 
 V. Williams {d), which is a leading case upon this 
 
 subject, is a strong illustration of this principle. 
 
 The Duke being the owner of an estate upon wliich 
 
 a rent charge was secured, filed a bill to compel the 
 
 grantee and the executors of persons to whom it 
 
 had been assigned to interplead. Lord Thurlow, 
 
 upon the hearing of the cause, granted a perpetual 
 
 injunction against the latter, which was afterwards 
 
 affirmed by Lord Rosslyn upon a re-hearing (e). 
 
 This relief, as has been observed by Lord Eldon, did 
 
 not properly belong to a strict bill of interpleader ; 
 
 which merely required it to be decided to whom 
 
 the arrecn^s of the annuities were to be paid ; yet as 
 
 (a) Aldridge v. Mesner, 6 Ves. 418. Sutton v. Earl of Scar- 
 borough, cit. 9 Ves. 73. Martinius v. Helmuth, Coop. 2\5. 
 2 V. & B, 407. Fairbrother r. Prattent, 1 Daniel. 64. Fair- 
 brother V. Nerot, ib. 68. n. Vide also, Earl of Carlisle v. Andrews, 
 2 Freem. 148. Shotbolt v. Biscow, 2 Eq. Ab. 173. 
 
 {b) Paris v. Gilhani, Coop. 56. 
 
 (c) 15 Ves. 246. et vide 2 Ves, jun. 109. 
 
 {d) 4 Bro. C. C. 297. 2 Ves. jun. 138. 
 
 (e) Ibid. 
 
 Z
 
 •558 INJUNCTIONS TO RESTRAIN 
 
 InicrpJeadcr. sums on account of the futuTC payments would be 
 continually coming into controversy, unless they 
 were restrained from j)roceeding\/6r them; that com- 
 plete relief could not be given, which was necessary 
 to deliver the plaintiff from the vexation to which 
 he would have been liable. Upon this principle 
 also, was the decree in tiie late case of Angel v. 
 Hadden, where the plaintiff had notice of a variety 
 of claims, by persons among whom an entire charge 
 upon an estate was split ; and though no suit was 
 instituted, and there was but one legal right of, 
 entry, yet a decree was made, the principle being 
 not merely that the payment cannot be safely made, 
 but that the party entitled to be discharged by a 
 single payment should not be harassed by a number 
 of suits («). 
 
 The case of Langston v. Boylston, before Lord 
 Kosslyn, is another remarkable illustration of this 
 doctrine. In that case a banker, with whom pro- 
 perty was deposited for safe custody, refused to 
 deliver it to the owner, who was in prison under 
 actions brought against him, as partner in an in- 
 solvent mercantile house. He was then served 
 with attachments by the plaintiffs in those actions, 
 and held to bail in trover by the owner. Under 
 these circumstances, although it was unnecessary to 
 have come into equity, as the plaintiff would have 
 been discharged at law on common bail, upon bring- 
 ing the deposit into court, and proceedings in the 
 action would have been stayed till the attachments 
 were disposed of by the owner of the property in 
 
 (fl) 15 Ves. ?44'. 16 Ves. 202. 2 Meriv. 164..
 
 VEXATIOUS LITIGATION. Oj\J 
 
 the name of the banker, yet the court held that he Interpleader. 
 
 was entitled to relief upon bill of interpleader. 
 
 Lord Rosslyn observed, that this was precisely the 
 
 case of an interpleading bill. " A party claiming 
 
 no right in the subject, is doubly vexed by having 
 
 two legal processes in the names of different persons 
 
 going on against him at the same time. He comes 
 
 upon the most obvious equity to insist that tliosc 
 
 persons, claiming that to which he makes no claim, 
 
 should settle the contest among themselves, and not 
 
 with him. It may be said in all cases of interpleader, 
 
 as it has been in this case, stand the action. If A. 
 
 proceeds first, and you have a good defence against 
 
 him, that puts an end to his claim ; if not, that is a 
 
 defence against the claim of B. This, however," 
 
 his Lordship added, " was precisely the situation in 
 
 which tlie plaintiffs ought not to be placed (a). 
 
 Upon these authorities and principles a doubt ^^ii^thcr, 
 
 ^ i? 1 1 where tlierc 
 
 maybe suggested as to the correctness of the doc- are adverse 
 
 claims, one 
 of them 
 
 (c) In a prior case, which nearly rcsenibled Langston r. Boyls- , other na- 
 ton, but where, from the circumstances, a bill of interpleader yamoitnt to a 
 would not lie, the court refused to interpose. A commission of bill of lading, 
 bankrupt had issued against a firm, but was not proceeded in ; but ^ . ' '^ j^.jj 
 was renewed, and still remained unexecuted. The firm had a of inter- 
 large sum of money in the hands of their bankers, who having pleader, 
 notice of the commission refused to pay it ; an action was accord- 
 ingly brought against them, upon which a motion was mr.de for 
 an injunction upon paying the money into court, and it was con- 
 tended that as no assignees were chosen under the conunission, 
 there was no person against whom a bill of interpleader could be 
 filed, and they claimed protection as stakeholders ; the court, how- 
 ever, said that the plaintiffs would be safe in paying the money 
 under a verdict at law, and therefore that there was uo reason for 
 its interference. Fuller v. Gibson, 2 Cox, 2%. 
 
 7. 'J
 
 340 INJUNCTIONS TO RESTUAIN 
 
 Interpleader, trine contained in a recent decision ; especially as 
 the doubt has received confirmation, from the cir- 
 cumstance of tlie learned judge, who pronounced 
 it, having, upon reconsideration, altered his first 
 opinion («). In that case, upon an interpleading 
 bill by the captain of a ship against the consignee 
 and a person claiming paramount to the bill of 
 lading, an injunction v/as refused, the court con- 
 sidering the captain protected by a suit already 
 instituted by the latter defendant ; and it was added, 
 that although a ca]>tain might file a bill of inter- 
 pleader where parties claimed adversely under the 
 bill of lading, yet that it was doubtful whether a 
 captain could in any case file a bill of interpleader 
 where the adverse claims were not under the bill of 
 lading, but paramount to it ; as delivering according 
 to the bill of lading would fully justify the captain, 
 and those who alleged an equity paramount to the 
 bill of lading and against the consignor, should assert 
 it by a suit of their own (h). 
 Tenant not It is laid down in general terms by Lord Hard- 
 file a bill of wicke (c), and he has been followed by Lord Ross- 
 mterpleader jyjj^ ^^\^ ^n injunction Cannot be obtained upon a bill 
 
 against his "^ '' i • • / \ 
 
 landlord and of interpleader to stay proceedings in ejectment [d). 
 
 a stranger. ^\^{^ proposition, however, must be confined to 
 those cases in which a tenant brings a bill to compel 
 his landlord, and a stranger claiming adversely to 
 
 (a) Morley v. Thompson, 29th July, 1819. 3 Mad. Rep. Index, 
 564. 
 
 {b) Lowe V. , 3 Mad. Rep. 277. 
 
 (c) 1 Ves. 24.8. 
 («?) 2 Ves.jun, 310.
 
 VEXATIOUS LITIGATION. -^il 
 
 him, to interplead (a). The reason of this rule is Interpleader. 
 stated in the following clear manner by Lord Ross- 
 lyn ; a bill of interpleader is where two persons 
 claim of a third the same debt or the same duty. 
 In the case of another person claiming against the 
 title of his landlord, it is clear, unless he derives 
 under the title of the landlord, he cannot claim the 
 same debt. The rent due upon the demise, is a di/- 
 ferent demand., from that which some other person 
 may have, upon the occuj)ation of the premises (^). 
 
 There may however, as his Lordship proceeded ^f "^ . 
 
 J ' I r where the 
 
 to observe, be a variety of cases in which the tenant, rent is claim- 
 not disputing the title of the landlord, but affirming so„^-^iAri. 
 that title, the tenure and the contract by which the vity of 
 
 111 1 • • • i 1 tenure and 
 
 rent is payable, but where it is uncertain to wnom contract. 
 
 it is to be paid, may lile a bill of interpleader ; as 
 
 where the same rent is claimed by two persons who 
 
 are in privity of tenure and privity of contract ; as 
 
 in the case of mortgagor and mortgagee, trustee, 
 
 and cestui que trust; or where the estate is settled 
 
 to the use of a married woman, of which the tenant 
 
 has notice, and the husband has been in receipt of 
 
 the rent, and differences arise between them and 
 
 (a) Dungey v. Angove, 3 Bro. C. C. 36. 2 Ves. jun. SM. 
 Smith V. Target, 2 Anst. 529. Johnson v. Atkinson, 3 Anst. 798. 
 overruling Surrey v. Lord Waltham, 2 Anst. 531. In the case of 
 Alnete v. Bettam, Gary, 65. which is perhaps the oldest case in 
 print upon this subject, was .also one in which a tenant upon pay- 
 ing his rent into court, obtained an injunction against two persons 
 suing for the inheritance, one of whom had granted the lease. 
 
 {b) 2 Ves. jun. 310. This was an objection to the bill in the 
 case ofWoolaston v. Wright, 3 Anst. 801. the object of which 
 was to compel two rectors to interplead, who claimed different 
 thingi, the one tithes in kind, the other a modus.
 
 •^^^ INJUNCTIONS TO RESTRAIN 
 
 Interpleader, she claiiiis the rent (a). So where the question arises 
 upon some act of the landlord subsequent to the 
 lease, a tenant may file a bill of interpleader : as 
 where the tenant had claims brought against him 
 by persons having annuities granted by the landlord 
 and subsequent to the lease (^). In another case 
 an interpleading bill was supported by a lessee of 
 tithes against the vicar (the lessor), and the assignees 
 under an insolvent act, of which he had taken the 
 benefit, subsequent to the lease (c). In another 
 the landlord had assigned his interest to a person, 
 to whom the tenant attorned, and afterwards both 
 were alleged to have conveyed the estate to trus- 
 tees, but contending claims were made by them 
 upon the tenant, who was holden entitled to a bill 
 of interpleader (d). 
 
 It is no objection to a bill of interpleader, that the 
 demand of one of the defendants is by virtue of an 
 alleged legale and the other of an alleged equitable 
 right (e). But a person cannot maintain this bill 
 who is obliged so to state his case, that, as to some 
 of the defendants, he is a wrong-doer ; accordingly 
 the sheriff) who has levied upon the goods alleged to 
 be in settlement, cannot file a bill of interpleader (y^). 
 
 (a) 2 Yes. jun. 312. 
 
 {b) Lord Thomond's case, cit. 9 Ves. 107. 
 
 (c) Cowtan V. Williams, 9 Ves. 107. 
 
 (d) Clarke v. Byne, 13 Ves. 383. vide the case of the East 
 India Company v. Edwards, 18 Ves. 376. where one defendant had 
 by his act given a colour of title to another person, and a bill of 
 interpleader was held to lie. 
 
 (e) Morgan v. Marsack, 2 Meriv. 111. 
 (/) Slingsby v. Boulton.. 1 V. & 13. 334.
 
 VEXATIOLS l.ITIGATION. 343 
 
 Nor if the plaintiff has parted with the possession of Interpleader. 
 the goods can this bill be sustained, upon an under- 
 taking to pay over the value of them to the party 
 who shall be found entitled to them (a). 
 
 Nor can the benefit of this species of suit be ob- Benefit of 
 
 , . , 1 . . 1-11 1 interpleader 
 
 tamed by motion in a cause to which the stake- cannot be 
 holder is a defendant : accordingly where money in fbtamed 
 
 ' o -^ '' upon motion 
 
 the funds was the subject of a suit, to which the without bill. 
 Bank was a defendant, Lord Thurlow refused, upon 
 the application of the Bank, to make any order upon 
 the litigating parties to restrain them from pro- 
 ceeding at law against the Bank, to compel a trans- 
 fer; he said they must apply in the shape o^ plain- 
 tiffs {b). 
 
 There must also be an affidavit by the plaintiff, Affidavit 
 either annexed to the bill, or filed along with it (for J^^gt^th 
 want of which the bill will be demurrable), asserting no collusion 
 that the plaintiff does not exhibit the bill by fraud 
 or collusion with either of the defendants, but spon- 
 taneously [c). He need not, however, swear that the 
 bill was filed at his own expense, or that it was filed 
 without the knowledge of either of the defendants (d). 
 The court will not determine the affidavit to be false 
 upon a counter-affidavit (e) ; but if there is a sus- 
 
 (a) Burnett v. Anderson, 1 Meriv. 405. 
 
 (b) Birch V. Corbin, 1 Cox, 114. See a prior application by 
 other defendants in this cause. 1 Bro. C, C. 571. 
 
 (c) Redes. Tr. 11(5. Errington v. Attorney General, Bunb. 303. 
 where there is an absurd quaere of the reporter, which shows that 
 he thought the affidavit was only necessary where the Attorney 
 General was a party. 
 
 {d) INIetcalf v. Harvey, 1 Ves. 248. Stevcn*oii v. Anderson, 
 2 V. & B. 410. 
 
 (e) 2 Ves. & Bea. 410. 
 
 necessary 
 
 ere is
 
 344 
 
 INJUNCTIONS TO RK8TRAIN 
 
 Whether iu 
 junction in 
 interplead- 
 er can be 
 obtained 
 upon affi- 
 davit. 
 
 Inicrplcndcr. picion of collusion, it will direct an inquiry; and 
 Lord llosslyn, in a case where fraud was proved 
 with one of the defendants, dismissed the bill with 
 costs to the other, as between attorney and client, 
 to be paid by the plaintiff and his solicitor ; and the 
 latter was ordered to show cause why he should not 
 be struck off the rolls («). 
 
 It has been laid down in two very recent cases, 
 that an injunction to stay proceedings at law in an 
 interpleading suit, stands upon the same principle 
 as the common injunction ; and that it cannot be 
 obtained, as in a case of waste, upon bill filed and 
 affidavit (b). It must be remarked, however, upon 
 the cases in which the doctrine is so laid down, that 
 though a search was directed to be made for pre- 
 cedents, yet either from the neglect of the parties, 
 or from the urgency of the case, which required im- 
 mediate decision, this direction does not appear 
 from the report to have been complied with. The 
 author has consulted several of the entries in the 
 Register's book, and although in many the injunc- 
 tion obtained was the commo7i injimction, yet there 
 are not wanting instances in which the injunction 
 was obtained on affidavit. In the case of Stevenson 
 V, Anderson, the injunction was obtained upon affi- 
 davits, and as the defendant had appeared in time, 
 the motion was made upon notice^ and accordingly 
 affidavits M^ere read in opposition to it (c). In 
 
 {a) Dungey v. Angove, '2 Ves. jun. 301'. 
 
 (h) Croggon t-. Symons, 3 Mad. Rep. 130. Bailey v. Punard, 
 ib. 131. n. 
 
 (c) Reg. Lib. B. 1813, fol. 668.
 
 VEXATIOUS LITIGATION. S4:5 
 
 the case of Aldridge v. Mesner (a), the plaintifFmoved Interpleader. 
 for an injunction, though one of the defendants had ' 
 actually demurred to the bill ; and upon that motion 
 the defendant who had demurred was restrained 
 from proceeding in his action, and directed to under- ^ 
 
 take the defence of the other action ; and the cause 
 was brought to a conclusion, although that demurrer 
 was never argued. It is remarkable also that it does 
 not appear that the case of Langston r. Boylston 
 was brought under the consideration of the court. 
 That case is of importance, as containing a discussion 
 upon the subject of reading affidavits in cases of 
 interpleader, and the deliberate opinion of Lord 
 Rosslyn, that they might be read against the answer, 
 as in a case of waste. In the case before him, when 
 they were offered upon the original motion, it was 
 insisted for the defendants, that affidavits could 
 only be read in cases of waste, and Lord Rosslyn 
 directed the argument to proceed without having 
 them read ; but upon a subsequent day he observed, 
 that upon consideration, he thought he ought to 
 have had the affidavits read : that an interpleading 
 bill was exactly upon the Jboting of an injunction to 
 stay 'waste, and might be supported by specific evi- 
 dence of facts (Z>). 
 
 It was laid down by Lord Thurlow, in the case of Whether the 
 Dungey v. Angove (c) (for which he relied both ^1,'^^-^ j^Jj'^"^. 
 upon the Practical Register and the Equity Cases junction 
 Abridged), that a plaintiff can never proceed com- brin^inf^ the 
 
 subject of 
 tlic suit into 
 
 (a) 6 Vcs. 418. """'^• 
 
 (b) 2 Ves. jun. 109. 
 
 (c) 3 Rio. C. C. 36.
 
 3M) 
 
 INJUNCTIONS TO IILBTRAIN 
 
 Interpleader. 
 
 PlaintifF not 
 entitled to 
 his costs, 
 unless he 
 sets down 
 the cause for 
 hearinar. 
 
 Proceedings 
 at the hear- 
 ing. 
 
 })ulsorily by injunction, till he has brought the sub- 
 ject matter of the suit into court : this, however, it 
 should seem would only apply to those cases where 
 the plaintiff applies specially by motion for an in- 
 junction. There are several cases in which the 
 common injunction had already been obtained ; and 
 the question, as to payment of the money into court, 
 did not come into consideration, till the discussion as 
 to the continuing the injunction upon the coming in 
 of the answer (a). It has also been expressly laid 
 down by Lord Hardwicke, in the case of the Earl 
 of Thanet v. Paterson (^), that it was not necessary 
 that the plaintiff should bring the money into court, 
 unless the other side require it ; but that it is 
 necessary that the plaintiff should make an offer to 
 do so by his bill. In the Exchequer it seems to be 
 necessary in all cases that the money should first be 
 paid into court (c). 
 
 It has been said that the plaintiff in a bill of inter- 
 pleader is bound to prosecute the suit so far as to 
 sue out subpoenas to rejoin (d). In a late case this 
 has been carried still further, for where the plaintiffs 
 had replied to the answers, and served subpoenas to 
 I'ejoin, it was held that they could not move to have 
 their costs paid out of the fund in court, but must 
 set down the cause for hearing [e]. 
 
 If at the hearing the question between the de- 
 
 (fl) Brimer v. Buchannon, cit. 3 Bro. C. C. 
 Waltham, ib. 
 
 (b) Barnard, Ch. Rep. 250. 
 
 (c) 1 Fowl. Ex. Pr. 260. 
 
 {d) Dungey v. Angove, cit. Harr. Ch. Pr. le. 
 (e) Jones v. Gilham, Coop. 49, 
 
 36. 
 
 Surrey v.
 
 VEXATIOUS LITIGATION. 347 
 
 f endants is not ripe for decision, the court will direct Interpleachn-. 
 an action, or an issue, or a reference to the INIaster, 
 as may be best suited to the nature of the case (a). 
 If the question is ripe for decision, a decree is made 
 between the respective defendants, and a perpetual 
 injunction is decreed against the defendant who is 
 unsuccessful. A decree in a suit of interpleader 
 has been made, though one of the defendants made 
 default at the hearing [b) ; and in a late case in the 
 Exchequer, a decree was made, though one of the 
 defendants had not appeared to the bill, the usual 
 process of contempt having been gone through (c). 
 
 In a case upon this subject before Lord Eldon, it Decree 
 was objected, that one of the defendants was out of ofd'ie dc-^ 
 the jurisdiction, and therefore that a bill of inter- fendants out 
 
 IT II 1 1 1 • 1 1 1 • 1 of tlicjuris- 
 
 pleader could not be supported : his lordship, how- diction, 
 ever, declared, that such a proposition could not be 
 maintained, as a person out of the jurisdiction might 
 threaten and bring an action ; that the plaintiff in a 
 bill of interpleader against persons within and with- 
 out the jurisdiction, is bound to bring them all 
 within the jurisdiction in a reasonable time ; if he 
 does not, the consequence is, that the only person 
 within the jurisdiction must have that which is re- 
 presented to be the subject of competition, and the 
 plaintiff must be indemnified against those who are 
 out of the jurisdiction, when they think proper to 
 come within it, and sue either at law or in this court. 
 If the plaintiff can show that he has used all due 
 diligence, to bring persons out of the jurisdiction, to 
 
 (a) 16 Ves. '103. 2 Rro. C. C. 144^. 
 
 {b) Hodges v. Smith, I Cox, 357- 
 
 (c) Fairhrotlicr r. Pratlcnt, 1 Dan. (il.
 
 348 
 
 INJUNCTIONS TO UESTIIAIN 
 
 Interpleader. Contend with thosc who are within it, and they will 
 not come, the court upon that default, and their so 
 abstaining from giving him the opportunity of re- 
 lieving himself, would, if they afterwards came here 
 and brought an action, order service on their at- 
 torney to be good service, and injoin that action for 
 ever ; not permitting those who refused the plaintiff 
 that justice, to commit that injustice against him («). 
 If there is a fund in court, the plaintiff has a lien 
 upon it, and will at the hearing be entitled to have 
 his costs paid out of it (h) ; if there is no fund, costs 
 will be given against the party who occasioned the 
 suit (c). 
 
 Costs may also be given, if the court thinks pro- 
 per, beticeen the defendants [(T). The direction in 
 that case is, that the plaintiff shall be at liberty to 
 
 Plaintiff en- 
 titled to 
 costs,and has 
 a lien upon 
 the fund. 
 
 Costs given 
 as between 
 defendants. 
 
 (a) Stevenson v. Anderson, 2 V. & B. 411. 
 . {b) Hacket v. Webb, Finch, 257. Aldrich v. Thompson, 2 Bro. 
 C. C. 149. Hodges v. Smith, 1 Cox, 357. 
 
 (c) Aldridge v. Mesner, 6 Ves. 419. 
 
 {(i) Cowtan V. Williams, 9 Ves. 107. Brimer u. Buchanan, cit. 
 ib. Teasdale v. Loughnan, ib. Hodges v. Smith, sup. Thirey v. 
 
 , cit. 2 Cox, 281. The case of Dowson v. Hardcastle 
 
 (which was reported in the first edition of Mr. Vesey's Reports, 
 Vol. I. p. 368. but omitted in the second), has been supposed to 
 have been to the contrary ; but it appears from Mr. Cox's report, 
 where the order is inserted, that one set of defendants were di- 
 rected to pay the costs to the other. 2 Cox, 178. In Edensor v. 
 Roberts, ib. 280. the same doctrine was recognized : both these 
 orders, however, are contrary to the present practice. In the 
 former case, from the circumstance of the plaintiff not being 
 directed to take or retain his costs from the fund in dispute ; in 
 the latter, he was ordered to pay the costs to certain of the defend- 
 ants, and then to have thosc costs, together with his own, out of 
 the fund.
 
 VEXATIOUS LITIGATION. 349 
 
 retain his costs out of the fund ; to pay the re- Interpleader. 
 mainder to the defendant in favour of whom the 
 decree is made ; and that the unsuccessful defend- 
 ant should pay to the other defendant what should 
 be so retained by the plaintiff, and the costs of that 
 defendant. 
 
 After the cause has been heard, and a trial at law . 
 directed, there is an end of the suit as to the plain- dies after 
 tiff, so that if he afterwards dies, there is no necessity ^^^l^lf "** 
 for revivor, each defendant being in the nature of a necessary, 
 plaintiff («). 
 
 Courts of equity, as observed by Lord Redesdale, Parties re- 
 in many cases act as ancillary to the administration sJ^'JUJI^'up 
 of justice in other courts, by removing impediments terms. 
 to the fair decision of a question. Thus if an eject- 
 ment is brought to try a right to land in a court of 
 common law, a court of equity will restrain the party 
 in possession from setting up any title (as for in- 
 stance, a term of years, or other interest in a 
 trustee, lessee, or mortgagee), which may prevent 
 the fair trial of the right {b) : when the plaintiff* 
 asks that the defendant may be restrained from set- 
 ting up terms, he must aver that there are terms 
 actually outstanding ; a mere vague allegation that 
 the action mai/ be defeated, by setting up outstand- 
 
 (fl) Anon. 1 Vern. 351. 
 
 (i) Redes. Tr. 108. Bond v. Hopkins, 1 Sch. cS: Lef. 1-30. 
 Pulteney v. Warren, 6 Ves. 89. Crow r. Tyrrell, 3 Mad. 181.
 
 350 IVJUNCTIONS 'J'O liES'rUAl.V • 
 
 Selling up ing tei'iiis, is not sufficient (a) ; and this averment, if 
 
 ^"' made by the bill, may be met by a negative plea(^). 
 
 Tenant re- In a case upon tliis subject whicii occurred before 
 stttiX^'upT Lord Eldon (c), the plaintiff had, through his negli- 
 lease against gence, suffered a verdict in ejectment to be obtained 
 brou'^hr by against him by one of the defendants in equity, 
 his landlord, upon which judofment was entered ud, and a writ of 
 
 where a ^ . . ^ , ' 
 
 judgment posscssiou issued : the tenant in possession, instead 
 had been ob-- q£ ^ging turned out, was prevailed upon by the de- 
 
 tanicd '^ . i J 
 
 against him fendant to attorn to him. The bill prayed, amongst 
 brd!'by the' ^^^^^ things, that the defendants might be restrained 
 negligence from setting up the lease granted by the plaintiff as 
 and he had ' ^ defence to any ejectment brought by him to pre- 
 attorned. vent him trying his title. General demurrers liaving 
 been put in both by the tenant and the defendant who 
 had recovered in ejectment. Lord Eldon in giving 
 judgment observed, that, upon the principles of this 
 court, if a tenant under a lease has, in consequence 
 of a judgment against him and the landlord, ceased 
 to be his tenant, and attorned as tenant to another, 
 even if the landlord permitted that recovery in eject- 
 ment to be obtained by negligence, it was against 
 conscience that the tenant should, upon any future 
 trial of the right of that person who stood in the 
 relation of landlord to him, set up against that per- 
 son, in order to defeat his right, the lease taken 
 from him. That whatever other remedies the land- 
 lord might have, and however numerous they might 
 be, yet the court w^ould not permit the tenant to 
 
 («) Jones V. Jones, 3 Meriv. 172. Barber r. Hunter, cit. ib. 
 
 (b) Armitage v. Wadsworth, 1 Mad. Rep. 189. 
 
 (c) Baker r. Mellish, 10 Ves. SI-*.
 
 VEXATIOUS LITIGATION. 3,51 
 
 defeat, or attempt to defeat, that right, if pursued Setting up 
 
 . ' ^ Ttrtiis. 
 
 by ejectment. 
 
 His lordship then observed, that if this could be The person 
 
 111 
 
 maintained as to the tenant, the person who became "o^^^.^tS aLo 
 his landlord was also bound in equity not to take restrained, 
 advantage of an act which in equity was considered 
 unrighteous ; such a bill therefore might be main- 
 tained by a landlord who lost his possession in eject- 
 ment, meaning to try another against his former 
 tenant, to restrain him from setting up the lease 
 taken from the landlord in order to defeat his title ; 
 and no third person would be permitted to take 
 advantage of that act, if the tenant proposed to 
 do it. 
 
 In this case there was only a vear and three Duration of 
 
 . *' the term un- 
 
 quarters of the term unexpired, and it was con- important. 
 tended that though the court might remove a long 
 term out of the way of the trial of an ejectment, yet 
 that it would not assist the impatience of the plain- 
 tiff, and interfere against so trivial an inconvenience; 
 but the objection was overruled. " It was also de- 
 cided, that it is not necessary that an ejectment 
 should actually be brought before the bill is filed. 
 
 The court, however, will not restrain the setting This rchcf 
 
 r> • r 1 1 1 T 1 "'^^ given 
 
 up 01 terms in every case ; lor, as observed by l-ord ;„raiiist a 
 Redesdale, as it proceeds upon the principle that pur^^'iaser 
 
 ^ .7 ti^r vahiahle 
 
 the party in possession ought not in conscience to consickra- 
 use an accidental advantage to protect his possession ^' 
 against a real right in his adversary ; if there is any 
 circumstance which meets the reasoning upon this 
 principle, the court will not interfere : tliereforc if 
 the possessor is a purchaser for a valuable considera- 
 tion, Avithout notice of the title of the claimant, this 
 
 tion without 
 otice.
 
 352 
 
 Setting up 
 Terms. 
 
 Never done 
 upon motion. 
 
 INJUNCTIONS TO llESTUAIN 
 
 is a title in conscience equal to that of the claimant, 
 and the court will not restrain the possessor from 
 using any advantage he may be able to gain to de- 
 fend his possession (a). 
 
 This species of relief, it is said, is never granted 
 upon motion prior to the decree (b), as it would be 
 deciding the whole equity of the case before the 
 decree. The principle of a bill of this nature is, 
 that the court directs the mode of proceeding at 
 law under the decree ; and therefore it cannot be 
 right, that previous to the decree, an ejectment is to 
 go at the hazard of proceeding in the very manner 
 which the court would have prohibited (c). 
 
 Perpetual Where the court is of opinion, at the hearing, 
 
 uijunctions. ^j^^^ ^^^ plaintiff has established a case which entitles 
 him to an injunction ; or if a bill praying an injunc- 
 tion is taken pro confesso, a perpetual injunction wdll 
 be decreed (c?). This injunction is final, and it is 
 not necessary to revive upon the death of either of 
 the parties, in order to keep it on foot ; if so, as 
 observed by Lord Bathurst, it would, in effect, be 
 decreeing a perpetual suit (e). ^ 
 
 (a) Redes. Tr. 109. 
 
 (J) Hylton V. Morgan, 6 Ves. 293. Byrne v. Byrne, 2 Sch. & 
 Lef. 537. 
 
 (c) 6 Ves. 294. 
 
 {d) Gilb. For. Rom. 194'. Harrison, Ch. Pr. 551. Knight v. 
 Adamson, 2 Freem. 106. Pigeon v. Lovtday, cit. ib. 
 
 (e) Askew v. Townsend, 2 Dick. 471. cit. in Morgan v. Scuda- 
 more, 2 Ves. jun. 316. Yeomans f. Kilvington, 1 Dick. 371.
 
 VEXATIOUS LITIGATION. 353 
 
 Where there has been a decree foi: the perform- -^^'y^/-'^^ 
 
 ^ Injunctions. 
 
 ance of trusts, it has been held a ground for a bill 
 
 for a perpetual injunction to restrain the party set- After decree 
 
 11 11 r N 1 • for pertorm- 
 
 tmg up a legal estate against that decree {a) ; thus m .^n^e of 
 the case of Acherley v. Vernon, after a decree, that trusts, 
 trustees should convey certain fee-farm rents, which 
 was affirmed by the House of Lords, a perpetual in- 
 junction was decreed to restrain the defendant from 
 proceeding for them at law {b). And in the case 
 upon the will of the Duke of Buckingham, the 
 duchess being proceeding in the Ecclesiastical Court, 
 after a decree for the execution of the trusts, a per- 
 petual injunction was decreed (c). 
 
 The case of Selby v. Selby, before Lord Thurlow, 
 is also an instance of tlie application of this doctrine. 
 Upon a bill by a devisee to establish the will, the 
 defendant made default at tlie hearing ; the bill was 
 retained for a tvvelvemontli, with liberty for other 
 defendants to bring actions, and further directions 
 reserved ; and the order was to be binding on the 
 defendant, unless he showed cause to the contrary ; 
 which he not doing, the same was made absolute. 
 The other defendants having failed in their actions, 
 and the cause being heard upon the equity reserved, 
 the will was decreed to be established, and the trusts 
 executed, and this decree was enrolled. The de- 
 fendant liaving afterwards brought an ejectment, the 
 plaintiff in tlie former cause filed a bill against him, 
 stating these facts, and praying a perpetual injunction. 
 
 (n) Askew v. Poultcrerb' Company, 2 Vcs. W. 
 {b) 2 Eq. Ab. 327. 
 (c) Ibid. 
 
 A A
 
 354 
 
 INJUNCTIONS TO RESTRAIN 
 
 I uj unci ions. 
 
 Upon the 
 
 sentence of a 
 foreign court 
 of competent 
 jurisdiction. 
 
 Whether the 
 court will 
 bind the in- 
 heritance 
 upon one 
 verdict only. 
 
 which Lord Thiirlow decreed, observing, tliat the 
 court will not permit any person to impede the exe- 
 cution of a decree, so long as the decree remains un- 
 appealed from {a). 
 
 So upon the principle that the sentence of a 
 foreign court, of competent jurisdiction, is con- 
 clusive ; a perpetual injunction was decreed by Lord 
 King, against an action brought against a person who 
 liaving accepted a bill of exchange drawn upon him 
 at Leghorn, had instituted a suit there, and, ac- 
 cording to the law there, had had his acceptance 
 vacated {b). 
 
 It is generally said that the court will not bind 
 the inheritance upon one verdict only (c) ; Lord 
 Northington, however, in the case of the Earl of 
 Darlington v, Bowes (^), expressed great disapproba- 
 tion of this rule, and inquired if there was any in- 
 stance of a decree upon one verdict only, observing, 
 
 (a) Selby v, Selby, 2 Dick. 678. 
 
 {h) Burrows v. Jemineau, Sel. Ca. Ch. 69. S. C. 2 Stra. 733. 
 Mose. 1. 2 Eq. Ab. 52 1. Vide, generally upon this subject, 
 Ashcomb's case, 1 Ch. Ca. 232, Bluet r. Banipfield, ib. 237. 
 Newland v. Horseman, 2 Ch. Ca. 74'. 1 Vern, 21, Dupleix v. 
 De Roven, 2 Vern. 540. Otto Lewis's case, 1 Ves. 298, and the 
 cases at law collected, Phillips on Evidence. 
 
 (c) Edwin V. Thomas, 2 Vern. 75. Leighton u, Leighton, 1 P. W. 
 674. 1 Stra. 404. 4 Bro. P. C. Ed. Toml. 378. Lord Faucon- 
 berg V. Pierce, Amb. 210, Lord Sherborne v. Naper, cit. 4 Ves. 
 206. 2 Ridg. P. C. 224. Bates v. Graves, 2 Ves. jun. 287. Even 
 a court of law will regard the circumstance of the inheritance 
 being to be bound for ever : and in a case of a doubtful and obscure 
 nature, where the property is of great value, has granted a new 
 trial on payment of costs, although it has not thought the verdict 
 wrong. Swinnerton v. Marquis of Stafford, 3 Taunt. 91. 
 
 {({) 1 Eden, 270.
 
 VEXATIOUS LITIGATION. 355 
 
 that he thoiiglit there were some old ones, and that Perpetual 
 
 if any could be found, he would certainly refuse the '_ 
 
 application before him for a new trial ; but as none 
 were produced, the order was made (a). There is a 
 case before Lord Clarendon, in which a decree was 
 made upon one verdict, and though it was disapproved 
 of by Lord Keeper North (b), yet there is a note in 
 Viner which supports it (c). There is also a sub- 
 sequent case of very considerable importance, in 
 which the same thing was done, though it may per- 
 haps be accounted for from the extreme iniquity of 
 the defence. An issue devisavit vel non was directed 
 to be tried at the bar of the Court of King's Bench, 
 when a verdict was found in favour of the will (c?). 
 Upon the hearing the cause upon the equity re- 
 served, the will was decreed to be established, and 
 the trusts to be executed, which were executed ac- 
 cordingly. The heir at law having afterwards made 
 his will and died, his devisee brouglit an ejectment ; 
 upon which the devisees under the first will filed a 
 
 (a) There is a passage in Lord Thurlow's observations, in Ro- 
 binson V. Lord Byroh, 2 Cox, 6. which seems to import tliat there 
 is a difference betv^«>en the effect of a verdict upon an action 
 brought by the direction of the court, and an issue sent out of it : 
 the author cannot find that the distinction has ever been attended 
 to in practice. 
 
 {b) Fitton V. Lord Macclesfiekl, 1 Vcrn. 292. 
 
 (c) Wilson V. Story, It Vin. Ab. 4-3 L 
 
 (d) An account of this remarkable case will be found 1 Bl. iJoi). 
 365. the three subscribing witnesses to the will, the two surviving 
 ones to a codicil, and a dozen servants of the testator, all swore 
 to his insanity ; all the witnesses, being nineteen in number, ap- 
 peared to be grossly and wilfully perjured : the testamentary wit- 
 nesses were afterwards convicted of perjury, 
 
 A A 2
 
 3.56 
 
 INJUNCTIONS TO RESTRAIN 
 
 Prrpriiial bill for ail injunction to restrain liim from proceeding 
 
 Innuuiions. , , -, . i • • • t i 
 
 at law, and a perpetual injunction was decreed upon 
 
 tlie hearing («). 
 rcrpetual Perpetual injunctions have also been decreed upon 
 
 injunctions i i ,.,i . , . , i i 
 
 after re- mere legal titles, to restrain repeated and vexatious 
 peixteil trials litigation. In many cases, as has been observed by 
 Lord Redesdale, the courts of ordinary jurisdiction 
 admit, at least for a certain time, of repeated attempts 
 to litigate tlie same question ; to put an end to the 
 oppression occasioned by the abuse of this privilege, 
 the courts of equity have assumed a jurisdiction. 
 Thus actions of ejectment have become the usual 
 mode of trying titles at the common law, and judg- 
 ments in those actions not being in any degree con- 
 clusive, the courts of equity have interfered, and 
 after repeated trials and satisfactory determinations 
 of questions, have granted perpetual injunctions to 
 restrain further litigation (h). 
 
 (a) Lowe v. Jolliffe, 1 Dick. S83. 
 
 {h) Rcdesd. Tr. 116. Lord Ellesmere used to call ejectments 
 pickpursc actions, in wliich he that had the last angel prevailed. 
 Hollard v. Battel, Pract. in Chancery unfolded, 32. Courts of 
 law have themselves endeavoured to put soutg stop to the vexa- 
 tion produced by repeated ejectments, and will accoi'dingly stay 
 proceedings in a second ejectment till the costs of a prior eject- 
 ment for the trial of the same title, or of an action for mesne profits, 
 have been paid. Roberts v. Cook, 4 Mod. 379. Lord Coningsby's 
 case, Stra. 54-7. Doe v. Hatherley, ib. 1152. Doe u. Chambers, 
 Bl. Rep. 1180. Doe v. Holdfast, 6 T. R. 223. Keene v. Angel, 
 ib, 740. Doc v. Roe, 8 T. R. 645. Doe v. Roe, 4 East. 585. Doe 
 T'. Stevenson, 2 B. (S: P. 22. and the cases there cited. -This rule, 
 however, will not be extended so as to include damages in the 
 action for the mesr,e profits. Doe v. Barclay, 15 East. 2 !3. nor
 
 VEXATIOUS LITIGATION. 357 
 
 The leading case upon this subject is that of the Perpetual 
 Earl of Bath v. Sherwin (a), where, after five verdicts ^ 'O^"''^'""- 
 in favour of the plaintiff, a bill was filed for a per- 
 petual injunction. Lord Cowper, though satisfied 
 of the vexatious nature of the defendant's litigation, 
 yet being unwilling to interpose in a case where the 
 title was purely legal, refused to decree an injunc- 
 tion, but recommended it to the plaintiff as a case 
 proper for the House of Lords ; and on an appeal a 
 perpetual injunction was decreed (/;). Upon this 
 authority a perpetual injunction was also decreed in 
 the Exchequer, in the case of Barefoot v. Fry, where 
 the defendant had brought five ejectments, and Jiad 
 been nonsuited upon full evidence in three of them, 
 and had verdicts against him in the other two ; he 
 had also brought bills in Chancery and tlie Exchequer, 
 which had both been dismissed (c). 
 
 Though a court of equity will not compel a bank- Injunction 
 rupt to give validity to the commission against him jj^JIjil'iL,, 
 by any positive act, yet where he has repeatedly vc.xatiou^ly 
 
 1 . 11 11. . • - disputing Iiin 
 
 questioned it, and thwarted his assignees in its pro- conuuisslon. 
 gress, the court will, in due time, when his conduct 
 appears vexatious, restrain him from further dis- 
 puting it (d). 
 
 In a case before Lord Ellesmere, where it ap- 
 peared that eight actions were instituted for the 
 
 the taxed costs of a suit in ccjuity brouglit lor the same prcnii.ses 
 Doe V. Winch, 3 B. <!- A. 602. 
 
 (a) Pr. Can. 261. Gilh. Ecj. Rep. 2. 
 
 (b) 1 Bio. P. C. 266. Ed. Toml. Vol. IV. p. 37.}. 
 
 (c) Bunb. 158. 
 
 (<■/) Thorpe V. (/oodall, 17 ^'es. 3D3.
 
 358 INJUNCTIONS TO RESTRAIN 
 
 Perpetual siime cause, lie stayed tliem all by injunction, saying 
 
 I?imnciio72S. ,i , -^ , , ^ s 
 
 tliat it was barretry (a). 
 
 Bills to pre- 111 all cases in which there is one general right to 
 
 vent multi- 
 
 * j. •'^ (a) Duncombe w. Kendall, Practice in Chancery unfokled, 31. 
 
 Many of the injunctions granted by Lord Ellesmere are extremely 
 curious, and show how little value is to be set upon precedents in 
 equity at this early period. Thus in the case of Ramsey v. Wood- 
 cock, Choice Cases in Chancery, 174, it appeared that Queen 
 Elizabeth had granted a protection to certain persons against their 
 creditors, upon paying a certain composition, and by that protec- 
 tion her majesty willed " that an injunction should be granted out 
 of this court against all such as should implead the said persons, 
 and not content themselves with the aforesaid rate;" and an in- 
 junction was accordingly granted at the suit of some of the creditors 
 who had accepted the composition, against others who were suing 
 at law. In another case, an injunction was granted at the suit of 
 an innkeeper, to restrain an action brought by a carrier, for 
 money taken out of his pack while in his house, Clarke v. Colibere, 
 ib. 172. In another case he granted an injunction to restrain an 
 action, merely on the ground that churches and hospitals were 
 not fairly dealt with in the country, Warwick Hospital v. Fielding, 
 Practice in Chancery vmfolded, 31 ; and it is said in the same 
 book, that he ordinarily granted injunctions to stay suits upon the 
 Stat. E. 6. for treble damages for not setting out tithes, but per- 
 mittmg them to sue hoiv they 'will otherinse for their tithes. There 
 is a curious case in Cary (which might perhaps have been more 
 properly noticed in a former part of this treatise), in which the 
 court refused to restrain an action brought by the defendant for 
 words spoken by the plaintiff against him, it being alleged that the 
 plaintiff was drunk when he uttered the words, Kendrick v. Hop- 
 kins, Cary, 133. In a case in Tothill, a parson is said to have 
 been prohibited, upon decree, from preaching, Town of Yarmouth 
 v. Dean of Norwich, 66 ; in another, an injunction was granted 
 against the issue in tail, to restrain the reversal of a fine, Arundell 
 V. Arundell, ib. 115. There is another head of injunction, upon 
 which the cases are extremely numerous, viz. injunctions to re- 
 strain proceedings in the King's Bench, where the king's fine had 
 not been paid, Cary, 110. 121. Choice Ca. in Cha. 111. 130.
 
 VEXATIOUS LITIGATION. 35{) 
 
 be established against a great number of persons, a Perpetual 
 court of equity will interpose, in order to prevent "^"^'^ '^"^' 
 multiplicity of suits ; and instead of suffering the 
 parties to be harassed by a number of separate 
 actions, each of which would only determine the 
 particular right in question, between the ])laintiff 
 and the defendant to it, it will at once determine 
 the rights by a decree, having previously, if neces- 
 sary, directed issues for its information (a). A bill 
 of this nature may be brought by a parson for tithes 
 against his parishioners ; by parishioners to establish 
 a modus ; by a lord against tenants for encroach- 
 ments, or by tenants against the lord for disturb- 
 ance (Z>). The jurisdiction has also been entertained 
 to establish toll due by custom (c). 
 
 Upon this principle in two early cases, where a 
 lord of a manor had enclosed under the statute of 
 Merton, injunctions were granted to restrain the 
 
 (a) 2 Atk. 484. Redes. Tr. 118, 119. 
 
 (b) How V. Tenants of Broonisgrove, 1 Vern. 22. Ewclmc 
 Hospital V. Andover, ib. 266. Powlet v. Ingrey, ib. 308. Brown 
 V. Vermuden, 1 Ch. Ca. 272. Rudge v. Hopkins, 2 Eq. Ab. 170. 
 Mayor of York v. Pilkington, 1 Atk. 282. Conyers r. Lord 
 Abergavenny, ib. 285. Poore v. Clark, 2 Atk. 515. 
 
 (c) Currier v. Cryer, Hard. 21. Green v. Robinson, ib. 174. 
 City of London v. Pallister, cit. Bunb. 101. Ibid. v. PerkinS; 3 Bro. 
 P. C. Ed. Toml. 602, Corporation of Carlisle v. Wilson, 13 Ves. 
 276. Duke of Norfolk v. Myers, 4 Mad. Rep. 83. Marshall i'. 
 Walmesley, Lady Petre v. Clarkson, Earl of Warrington v. Mosely, 
 cit. ib. Though this is now fully settled, yet there are many pre- 
 cedents in which courts of equity have refused to interpose. 
 Disney v. Robertson, Bunb. 41. Bond v. City of Exeter, il). 
 Mayor of Boston v. Jackson, ib. 101. Harding v. Aiiigc, il). 
 Vide also Fines v. Cobb, 2 Vcrn. 116.
 
 360 
 
 INJUNCTIONS TO RKSTIIAIN 
 
 Pcrpcinal tciiaiits from throwing down tlic enclosures («). 
 
 '_ Lord Eldon has recognised the authority of these 
 
 cases, considering it establislicd that a lord of a 
 manor may file a bill, stating tliat he has approved 
 under the statute, and left sufficient common of 
 pasture; that by the operation of the statute the in- 
 closure has become his exclusive soil. Upon such a 
 bill, however, the prayer must be, not in the nature of 
 waste, for an injunction, but for the establishment 
 of the exclusive right under the statute, and to 
 have that right declared : accordingly in the case 
 before him, where an injunction had been obtained 
 on affidavit, against cutting and pasturing cattle in 
 a wood, the plaintiff praying the injunction as tenant 
 in fee, or as lord of the manor inclosing under the 
 statute ; the defendants denying the former title, 
 and as to the latter claiming common of pasture 
 and estovers, and stating that after the enclosure 
 sufficient common of pasture would not be left, the 
 injunction w^as under the circumstances dissolved 
 upon the answer (b). 
 
 Upon the principle of preventing multiplicity of 
 suits, a bill will lie to settle a general fine to be paid 
 by all the copyhold tenants of a manor (c). 
 
 Such bill will A bill of this sort, however, cannot be maintained 
 
 not lie where , . , . ,. 
 
 the right is Where a right is disputed between txco 2^erso7is onlij, 
 disputed be- j^j-j^ |-|^g decree souo;ht cannot conclude any one 
 
 twcen two ^ '' 
 
 persons only. 
 
 («) Weeks v. Staker, 2 Vern. 305. Arthington v. Fawkes, 
 ib. 356. 
 
 (6) Hanson v. Gardiner, 7 Ves. 305. 
 
 (c) Middleton v. Jackson, 1 Ch. Rep. 18. Popham v. Lancaster, 
 ib. 51. Cowpcr v. Clerk, 3 P. W. 157.
 
 VEXATIOUS LITIGATION. 36l 
 
 except the defendants («). Accordingly in the above Pcrpciual 
 noticed case of Cowper v. Clerk, a bill by a single "-^'^ 
 copyholder to be relieved against an excessive line 
 was dismissed with costs, as determinable at law. 
 Thus in one of the leading cases upon this subject, a 
 bill by a lord of a manor to establish his legal title to 
 the manor, and for a perpetual injunction to restrain 
 the defendant from appointing a steward or game- 
 keeper for the said manor, and from setting \\\) any 
 further claim thereto, was dismissed with costs, and 
 that decree was affirmed upon appeal by the House 
 of Lords (b). 
 
 We may here notice, though not exactly belong- Bills for sct- 
 mg to the subject, yet not entirely roreign irom i-j^s and ic- 
 
 it, the doctrine upon the subject of bills for settling covery of 
 , 1 • 1 /. 1 11 ,> 1 r "^ <1"''^ rents, 
 
 boundaries, and or bills for the recovery or quit 
 
 rents. As to tlie former, it is settled that the 
 
 mere confusion of boundaries is not a sufficient 
 
 ground for the court to interpose, the jurisdiction 
 
 must be superinduced by some equitable circum- 
 
 (a) Disney v. Robertson, sup. City of Loudon v. Ainslcy, 
 1 Anst. 158. Whitchurch v. Hide, 2 Atk. S91. Lord Teynham 
 V. Webb, ib. 483. Weller v. Smeaton, 1 Bro. C. C. 572. 1 Cox, 
 102. There are some old cases upon this subject to the contrary, 
 where the court acted upon the great length of possession in the 
 plaintiff, but they are not law at present. Bush i). Western, Pr. 
 Ch. 530, Finch v. Resbridge, 2 Vern. 390. Where a person wa.s 
 in possession of a fishery, he was allowed to Hie a bill to perpetuate 
 testimony and establish his right, though he had not recovered in 
 affirmance of it at law. Duke of Dorset v. Girdler, Pr. Ch. 531. 
 But where the plaintiff has been interrupted and dispossessed, 
 and therefore has a remedy at law, a bill oftliis naturi' will not lie. 
 Wynn v. Hatty, cit. ib. 
 
 (b) Vv'elby v. Duke of Rutland, 3 Uvo. P. C. Ed. Tom!. 39.
 
 302 INJUNCT40NS TO RESTRAIN, &C. 
 
 Perpetual stance {a). In the cases of quit rents, relief has been 
 
 ^''^"^ given where the remedies at law have either been 
 
 Where the ^^^^ ^^' become very deficienj: (/;). 
 
 lands of There are several ancient cases upon the subject 
 
 SGvcrsl (irc 
 
 subject to a of rentcharges, which proceeded upon the equity 
 rentcharge, ^hich the plaintiff had to contribution, viz. where 
 
 grantee re- * 
 
 strained from the lands of Several being liable to a rentcharge, 
 alone. ""'^ and the person entitled to it was suing one alone, 
 
 the court has restrained him without making the rest 
 
 parties (c). 
 
 (a) Wake v. Conyers, 2 Cox, 260. 1 Eden, 331. St. Luke's 
 V. St. Leonard's, 1 Bro. C. C. 40. Atkins u. Hatton, 3 Anst. 387. 
 Rous V. Barker, 3 Bro. P. C. Ed. Toml. 660. Loker v. Rolle, 
 3 Ves. 4. Duke of Leeds v. Earl of Strafford, 4 Ves. 180. The 
 Attorney General u. FuUarton, 2 V. & B. 263. Spear v. Crawter, 
 2 Meriv. 410. 
 
 (6) Vide Holder v. Chambury, 3 P. W. 256. and the cases there 
 cited. Bouverie v. Prentice, 1 Bro. C. C. 200. Duke of Leeds 
 u. New Radnor, 2 Bro. C. C. 340. 518. 
 
 (c) Cary 33. Dolman v. Vavasor, ib. 132. The Queen v. 
 Colborne, ib. 159.
 
 INJUNCTIONS TO YIELD UP, QUIET, &C. 363 
 
 Judicial 
 IVric. 
 
 CHAPTER XVII. 
 
 Of Injunctions to yield up^ quiet, or continue Possession 
 
 of Lands, 
 
 The injunction to yield up, quiet, or continue pos- 
 sessio7i of land is a judicial writ j and subsequent to 
 a decree, in the nature of a writ of execution {a). 
 
 The strict primary decree of a court of equity, as 
 observed by Lord Hardwicke, is in personam; and 
 he adds, that it was not till the time of James I. 
 that it was settled that the court would issue an 
 injunction and writ of assistance to the sheriff to 
 put into possession in a suit of lands (Z>). This, 
 however, is clearly a mistake, and his Lordship must 
 here be understood as speaking of sequestrations 
 upon lands not in question in the cause, which have 
 been frequently said to have been introduced by 
 Lord Bacon in the time of James I. (c). For not 
 
 (a) Wy. Pr. Rep. 254. 
 
 {b) 1 Ves. 454. 
 
 (c) 1 Vern, 421. 1 Ch, Ca. 91. There is great obscurity at- 
 tending the origin of sequestrations, as, notwithstanding these ob- 
 servations, there is an order of Lord Baeon's, which expressly 
 states that no sequestration shall be granted but of lands, leases, 
 or goods in question. Ord. 29. Beames, 16. There are, however, 
 as shown by the learned editor, a great number of precedents 
 prior to, and contemporaneous with, these orders, in which se- 
 questrations were granted of other lands and goods. It is how- 
 ever clear that they were not introduced by Lord Keeper Coventry
 
 ,S64 
 
 INJUNCTIONS TO YIELD UP, (iUIET, 
 
 Judicial 
 
 Writ. 
 
 Used in aid 
 of a judg- 
 ment at law. 
 
 only sequestrations in respect of lands, which were 
 the subject of the suit, were well known long before 
 this tune, but many precedents for injunctions to 
 deliver possession after a decree and a commission 
 or writ of assistance to the sheriff, are in the printed 
 reports, as early as the reign of Queen Elizabeth {a). 
 And in ^ MS. book of orders (which appear to be 
 taken from the registrar's books) in the Hargrave 
 collection, there are a great many precedents of in- 
 junctions to deliver possession of lands after a decree 
 in the time of Henry VIII. Edward VI. and Mary. 
 It is observable too that Lord Bacon's orders treat 
 them as a process well known and much in use (Jj). 
 One of the most extraordinary instances of the 
 use of this species of writ, is the application of it in 
 aid of a judgment at law; the plaintiff it is said had 
 recovered dower in the C. B. and had judgment and 
 execution, but the defendant being rich and wilful, 
 would not let her have any benefit thereby, where- 
 upon she set forth her title by bill in Chancery, to 
 have her possession established by injunction, and 
 upon a letter written by Lord C. J. Dyer and 
 Meade, J. before whom the trial was had, craving 
 the Lord Chancellor's aid for the plaintiff, he granted 
 an injunction (c). In another case a benefice was 
 
 (as Roger North erroneously supposes), who did not come to the 
 seals till the reign of Charles I. 
 
 (a) Lane v. Lord Howard, Gary, 148. Denis v. Carew, Toth. 
 75. Servington f . Webb, ib. 112. Shelton v. Stanley, ib. 115. 
 There are also several precedents, ib. 37. which seem to be for the 
 same purpose. 
 
 (I/) Bcames' Orders, 8. 16. 
 
 (c) Bracebridgc v. Bracebridge, Choice Ca. in Ch. l^O.
 
 OR CONTINUE POSSESSION OF LANDS. 365 
 
 lioldcn by force from the plaintiff, whereupon a writ Judicial 
 de VI laicci rejnovcndd was awarded, and the phiintiff _^^^1____ 
 
 put ill possession by the slieriff, but the defendant 
 still keeping possession of the house belonging to 
 the parsonage, an injunction was granted (a). 
 
 The proceedings in obtaining and carrying into Proceedings 
 
 . . . r» 1 • , . in ordtT to 
 
 execution an injunction oi this nature are stated in obthin tlie 
 some observations inserted by Mr. Dickens, in his ji»il"i-'''i' "'"'*• 
 report of the case of Dove v. Dove (/>), and have 
 been established by other determinations as fol- 
 lows (c). 
 
 The first process after a decree for possession, is 
 service of a writ of execution of the decree for the 
 defendant to deliver possession, accompanied with a 
 demand of possession. Upon the refusal of the de- 
 fendant, an attachment issues. The next process is 
 the writ of injunction to deliver possession, which is 
 obtained of course upon afhdavit of service of the 
 writ of execution, of the demand and refusal, and 
 of the issuing of the attachment. The writ of in- 
 junction affects the tenant, which the order for the 
 defendant to deliver possession does not (f/). Upon 
 proof of service of the injunction and of its not 
 having been complied with, and upon motion, with- 
 out notice, and reading an affidavit of the facts,' a 
 ivtit of assistance will be ordered. 
 
 Mr. Dickens states that he has not been able to 
 find any precedent of an order for a writ of assistance 
 
 (rt) Boult V. Blunt, Gary, 72. 
 
 {b) 2 Dick. 617. S. C. 1 Bro. C. C. .'575. 1 Cox, 101. 
 (c) Striblcy r. Hawkic, ?, Atk. 275. HuLionin v. Bazdoy, 
 15 Vcs. 180. 
 
 ((/) Venablcs v. Foylcs, cit. 2 Dick. Q\\).
 
 366 INJUNCTIONS TO YIELD UP, &C. 
 
 Judicial prior to the reign of Charles II. Tlierc arc, hovv- 
 
 " ever, besides some orders contained in Totliill and 
 
 Cary («), great numbers of precedents as early as 
 the time of Henry VIII. in the MS. volume in tlie 
 Hargrave Collection, before alluded to. There are 
 also two precedents of writs of this nature in the 
 Appendi?: to the last edition of the Registrum Bre- 
 vhim, but their date does not appear (b), 
 
 (a) Ante, p. 364.. 
 i,b) Ed. 1687. Ap. 46.
 
 APPENDIX. 
 
 (rt) An Order for an Injunction on a Dedimus. 
 
 Master of 7 Thursday, the day of in tlic 
 
 the Rolls. y^^j, ^f ^YiQ reign of his Majesty King George 
 
 the Fourth, and in the year of our Lord 
 between A. B. and C. D. complainants, and 
 E. F., defendant. 
 
 FoR.\SMUCH as this court was this present day informed by 
 Mr. , being of the plaintifPs counsel, that the 
 
 defendant being served with process to appear to and answer 
 the plaintiff's bill, hath appeared accordingly, but, for delay, 
 hath craved a commission to answer in the country, and yet, 
 in the meantime, the said defendant prosecutes the plaintiffs 
 at law for the matters in the bill complained of: it is there- 
 upon ordered, that an injunction be awarded against the 
 defendant for stay of his proceedings at law against the said 
 plaintiffs, until the said defendant shall fully answer the plain- 
 tiff's bill, and this court make other order to the contrary ; 
 but the said defendant is, in the meantime, at liberty to call 
 for a plea, and to proceed to trial thereon, and, for want of a 
 plea, to enter up judgment; but execution is hereby stayctl. 
 
 (a) Harrison's Ch. Pr. 553.
 
 368 
 
 APPENDIX. 
 
 (a) Docket upon an Injunction on a Dedimus. 
 
 The King and so forth. To his counsellors, attornies, 
 
 solicitors, and agents, greeting : Whereas it is represented to 
 us in our Court of Chancery, on the part of A. B. and C. Z>., 
 complainants, that they have lately exhibited their bill of 
 complaint in our said Court of Chancery against you the said 
 JE. F., defendant, to be relieved touching the matters therein 
 contained ; and that you, the said defendant E. F.^ being 
 served with a writ, issuing out of the said court, commanding 
 you to appear to and answer the said bill, have appeared, but, 
 for delay, have craved a commission to answer in the country ; 
 and yet, in the meantime, you unjustly (as is alleged) prose- 
 cute the said complaints at law, for and touching the matters 
 in the said bill complained of: We therefore, in considera- 
 tion of the premises, do hereby strictly command and enjoin 
 you, the said E. F., defendant, and all and every the persons 
 before mentioned, under the penalty of two hundred pounds, 
 to be levied on you and each of your lands and tenements, 
 goods and chattels, to our use, that you and each of you do 
 henceforth absolutely desist and forbear from all further pro- 
 ceedings at law against the said complainants, or either of 
 them, until you, the said defendant, E. F., shall fully answer 
 the said complainant's bill, and this court make other order 
 to the contrary ; and this you, nor either of you, are in any- 
 wise to omit, under the penalty aforesaid : But, nevertheless 
 the said defendant, E. F., is at liberty to call for a plea and 
 proceed to trial thereon, and, for want of a plea, to enter up 
 judgment; but execution is hereby stayed. Witness the 
 King at Westminster the day of in the 
 
 year of his reign. 
 
 (o) Harrison, Cli. Pr. 553.
 
 APPENDIX. 
 
 369 
 
 [a] Order Jbr an Injunclion on an ALlachmcnt. 
 
 Attiie,Rolis,>| Thursday, the day of in the 
 
 Master of > ^^^,^, ^f ^j^^ rcigii of our Sovcrcign Lord King 
 George the Fourth. Between A. 7i., plaintiff, 
 and C. D. and E. F., defendants. 
 
 Forasmuch as this court was this present day informed by 
 Mr. , being of the plaintiff's counsel, that the 
 
 defendants being served with process to appear to and answer 
 the plaintiff's bill, refuse so to do, are in contempt to an 
 attachment for want thereof, and yet in the mean time prose- 
 cute the plaintiff at law for the matters in the bill complained 
 of: It is thereupon ordei'ed, that an injunction be awarded 
 against the said defendants for stay of their proceedings at 
 law, for and touching any matters here in question, until the 
 said defendants shall appear to and fully answer the plaintiff's 
 bill, clear their contempt, and this court make other order to 
 the contrary: but the said defendants are, in the mean 
 time, at liberty to call for a plea, and proceed to trial thereon, 
 and, for want of a plea, to enter up judgment ; but execution 
 is hereby stayed. 
 
 (b) Docket for an Injunction on Attachment. 
 
 The King, and so forth. To their counsellors, attornies, 
 solicitors, and agents, greeting : Whereas it is represented to 
 us in our Court of Chancery, on the part of A. B., complain- 
 ant, that he hatii lately exhibited his bill of comiilaiiit in our 
 said Court of Chancery, against you, the said C. 1). and E. F., 
 defendants, touchino; the matters therein contained, and that 
 you, the said defendants, being served with a writ issuing out 
 
 (a) Hairisoii's Ciu Pr. .'554. {l>) lb- 5.->:>. 
 
 B D
 
 370 APPENDIX. 
 
 of our said court, commanding you to appear to and answer 
 the said bill, have iiot obeyed the same, but are in contempt 
 to an attachment for not appearing to and answering the said 
 bill; and yet, in the mean time, you unjustly, as is alleged, 
 prosecute the said bill complainant at law touching the mat- 
 ters in the said bill complained of: We, therefore, in con- 
 sideration of the premises, do strictly enjoin and command 
 you, the said C. D. and E. F., and all and every the persons 
 before mentioned, under the penalty of two hundred pounds, 
 to be levied on you and each of your lands, goods, and 
 chattels, to our use, that you and each of you do absolutely 
 desist from all further proceedings at law against the said 
 complainant, touching any of the matters in the said bill 
 complained of, until you and each of you shall appear to and 
 fully answer the said complainant's said bill, clear your 
 contempts, and this court make other order to the contrary ; 
 but, nevertheless, the said defendants are at liberty to call for 
 a plea, and proceed to a trial thereon, and for want of a plea 
 to enter up judgment ; but execution is hereby stayed. Wit- 
 ness the King at IFestminster, the day of in the 
 year of his reign. 
 
 (d) The Form of a Wiit of Injunction. 
 
 George the Fourth, by the grace of God, of Great Britain, 
 France, and Ireland, king, defender of the faith, and so 
 forth. To his counsellors, attornies, 
 
 solicitors, and agents, and every of them, greeting: Whereas 
 it hath been represented unto us in our Court of Chancery, on 
 the part of complainant, that he hath 
 
 lately exhibited his bill of complaint into our said Court of 
 Chancery against you, the said defendant, 
 
 (o) Harrison's Cli. Pr. 555.
 
 APPENDIX. 371 
 
 to be relieved toiicliing the matters therein contained ; and 
 that you, the said defendant, being served willi a writ issuing 
 out of our said court, commanding you to appear to and 
 answer the said bill (a), have not obeyed the same, but are in 
 contemjpt to an attachment for not aiq^aring to and ans-j:crhv^ 
 the said bill ; and yet, in the meantime, you unjustly, as is 
 alleged, prosecute the said complainant at law touching the 
 matters in the said bill complained of: We therefore, in 
 consideration of the premises, do strictly enjoin and command 
 you, the said and all and every the persons 
 
 before mentioned, under the penalty of two hundred pounds, 
 to be levied on your^ and every of your lands, goods, and 
 chattels, to our use, that you and every of you do absolutely 
 desist from all farther proceedings at law against the said 
 complainant touching any of the matters in the said bill com- 
 plained of, until you, the said defendant, shall have fully 
 answered the said bill, cleared your contempt, and our said 
 court shall make other order to the contrary : but, neverthe- 
 less, the said defendant is at liberty to call for a plea, and to 
 proceed to trial thereon, and, for want of a plea, to enter up 
 judgment: but execution is hereby stayed. Witness ourself 
 at Westminster, this day of in the year of 
 
 our reiiin. 
 
 (J)) On a Dedhiuts. 
 
 [In injuncl!on<« on a dedimiis, order for limp, or insuflTicient answi-r, Ihesc 
 words are to be lefl out, viz. have cleared i/our cotUcmi't.] 
 
 To which bill, you, the said defendant, have apj^eared, but, 
 for delay, have craved a commission to take yoiu" answer in 
 the country. 
 
 («) If injunction on a dcdiinus, \c. viile post. 
 (6) Harrison's Cli. Pr. r>r>G. 
 
 bij2
 
 ^7^ APPENDIX. 
 
 (a) On an Order for Time. 
 
 To wliich bill you, the said defendant, have appeared, but, 
 for delay, have obtained an order of our said court for time 
 to answer the same ; and yet, in the meantime prosecute, &c. 
 
 (b) On an insiifficient Ansiaer. 
 
 To which bill you, the said defendants, have appeared, 
 but, for delay, have put in an insufficient answer; and yet, m 
 the meantime prosecute, &c. 
 
 (c) On an Altachmentfor Want qfan Answer, 
 
 To which bill you, the said defendant, have appeared, but 
 have not answered the same, and are in contempt to an at- 
 tachment for want thereof; and yet, in the meantime pro- 
 secute, &c. 
 
 {d) Form of an Injunction in the Exchequer to stay 
 Proceeding's at Laxv. 
 
 'ir>' 
 
 George, &c. To C. Z)., and to all and singular your 
 counsellors, attornies, solicitors, and agents, greeting: We 
 firmly enjoin and command you, and every of you, that from 
 and immediately after your receipt or notice of this, our writ, 
 by you or any of you had, you or any of you do not com- 
 mence or further prosecute any action, suit, bill, or plaint, 
 
 {a) Harrison's Ch. Pr. 556. {h) lb. (c) lb. (f/) 1 Fowl. Ex. Pr. 217.
 
 APPENDIX. 
 
 373 
 
 or enter any judgment, or sue out or levy any execution in 
 any of our courts at the common law against A. B., touching 
 any of the matters contained in a certain bill of complaint 
 lately exhibited by him, the said yl. />,, complainant, before the 
 Chancellor and Barons of our Court of Exchccjuer at Jl est- 
 minster, against you, the said C. D. and others, defendants ; 
 but that you and every of you do from henceforth wholly and 
 entirely surcease and desist from the commencing or further 
 prosecuting any such action, suit, bill, or plaint, and from 
 entering any such judgment, or suing out or levying any such 
 execution, until you, the said C. D. [shall have aj^pearcd to 
 andfulli) ans'wered) the said bill, and our court shall make 
 further order thereupon ; (jmt if issue is or can he joined in 
 any such suit or action^ then you may proceed to a trial thereof; 
 but you are not to enter up judgment, or sue out execution 
 thereon (a) ). And hereof you are not to fail, on pain of five 
 hundred pounds, which we will cause to be levied on your 
 goods and chattels, lands and tenements, to our use, if you 
 neglect to obey this our command. Witness Sir Alexander 
 Thomson.) Knight, at Westminster, the day of 
 in the year of our reign. 
 
 By order of court, made the same day, and by the Barons. 
 
 Steele. 
 (Indorsed) Fowlek. 
 
 {b) Notice of Motion Jbr an Injunction upon opening 
 a matericil Exception or Merits, 
 
 In tlie Exchequer. 
 Take notice, that this honourable court will be moved on 
 next, or so soon after as counsel can be heard, that 
 
 (a) This clause to bo iiiscilcil in Hilary ami Trinity Icruib only, ami ni louiilry 
 causes only. 
 
 (ft) 1 Fowl. Ex. Pr. '232.
 
 '^74 AIM'ENDIX. 
 
 an injunction may issue upon opening a material exception to 
 the defendants' answer, or, in case the exception shall not be 
 held material, then that an injunction may issue ujjon the 
 merits. Dated this day of 
 
 J. S. Plaintiff's solicitor. 
 
 (a) Ly unction till Hearing. 
 
 George, &c. To C. D., and to all and singular your 
 counsellors, attornies, solicitors, and agents, greeting: 
 Whereas A. B., complainant, hath lately exhibited his bill 
 before the Chancellor and Barons of our Court of Exchequer 
 at Westminster against you the said C. Z)., defendant, praying 
 relief touching the matters therein mentioned. And whereas, 
 by an order of the said court made in the said cause on the 
 day of , it was ordered that an injunction 
 
 should issue, under the seal of our said court, to restrain {Jiere 
 insert the words of the order) until the hearing of this cause, 
 or until our said court shall make further order thereupon. 
 We therefore firmly enjoin and command you, and every of 
 you, that from and immediately after your receipt or notice of 
 this our writ by you or any of you had, you or any of you do 
 not commence or further prosecute any action, suit, bill, or 
 plaint, or enter any judgment, or sue out or levy any execution 
 in any of our courts at the common law against A. B., touch- 
 ing any of the matters contained in his said bill of complaint, 
 but that you and every of you do from henceforth wholly and 
 entirely surcease and desist from the commencing or further 
 prosecuting any such action, suit, bill, or plaint, and from 
 entering any such judgment, and suing out or levying any 
 such execution, until our said court shall have made further 
 
 (a) I Fowl, Ex. Pr. '263.
 
 APPENDIX. 
 
 375 
 
 order in this cause to the contrary : and hereof yon arc not to 
 fail on pain of live hundred pounds, ^vhich wc will cause to be 
 levied on your goods and chattels, lands and tenements, to 
 our use, if you nci'lect to obey this our command. Witness, 
 &c. the day of in the year of our reign. 
 
 By order of court made the same day, and by the Barons. 
 
 Eliot. 
 
 (a) An Injunction to stay committing fVaste. 
 
 Gkorge the Fourth, &c. To A. B. and his workmen, 
 labourers, servants, and agents, and each and every of them, 
 greeting: Whereas it hath been represented unto us in our 
 court of Chancery, in a certain cause there depending, v.hcrein 
 C. D. is complainant, and you the said A. B. are defendant, 
 on the part of the said complainant, that, &c. (as in the order). 
 We therefore, in consideration of the premises aforcsaiil, do 
 strictly enjoin and connnand you the said .-1. /.•. and your 
 workmen, labourers, servants, and agents, and jill and every 
 one of you, under the penalty of one thousand pounds, to be 
 levied upon your and each and every of your lands, goods, 
 and chattels, to our use, that you and every one of you do 
 from henceforth altogether absolutely desist from felling or 
 cutting down any timber or other trees standing, grow ing, or 
 being in or upon the premises in question, or from connnit- 
 ting or doing any other or further waste or spoil in or upon 
 the said premises, or any part thereof, until our said court 
 shall make other order to the contrary. M'itncss, 8:c. 
 
 ((7) lluiribun'ii Cli. Vv. j J7.
 
 Sji) AITENDIX. 
 
 (a) A Special I )ij unction to stay the Defendants from 
 cojyijing, engraving, 8^c. and selling of Prints, pur- 
 suant to an Act of Parliament, 8 Geo. 2. 
 
 George, &c. To , and also to their and every 
 
 one of their servants, workmen, and agents, to all and every 
 of them greeting : Whereas, on the day of 
 
 and on the day of last, it was alleged to us in 
 
 our Court of Chancery, by counsel on behalf of and 
 
 his wife, plaintiffs against you the said 
 defendants, that, by an act of parliament made in the eighth 
 year of our reign, it is (amongst other things) enacted, that 
 from and after the twenty-fourth day of June, one thousand 
 seven hundred and thirty-five, every person who should invent 
 and design, engrave, etch, or work in metzotinto or chiaro 
 obscuro, or from his own works and inventions should cause 
 the same so to be done, should have the sole right and liberty 
 of printing and reprinting the same for the term of fourteen 
 years, to commence from the day of the first pubhshing thereof, 
 unless by the consent of the proprietor first had in writing, and 
 signed in the presence of two or more credible witnesses, under 
 the penalties in the said act particularly mentioned : That the 
 said plaintiff since the said twenty-fourth day of June, 
 
 one thousand seven hundred and thirty-five, hath with great 
 labour and expense invented, designed, etched, and engraved 
 about prints, being the representation of, &c. ; And on 
 
 the day of one thousand seven hundred and 
 
 thirty-seven, published four of the said prints, representing 
 and ; and that, notwithstanding the 
 
 said act of parliament, you the said defendants have copied, 
 published, and sold the said last four mentioned prints, as by 
 the affidavit of the plaintiff read, appeared : to be 
 
 relieved wherein, the said plaintiffs have exhibited their bill in 
 
 (a) Harrison's Cli. I'r. 558.
 
 APPENDIX. 377 
 
 our said Court of Chancery against you the said defendants, 
 as by the Six clerks' certificate appeared ; and you the said 
 defendant having put in your answer thereto, thereby 
 
 admit to have sold and pubhshcd the said prints, but say they 
 were sent to you by the said defendant ; and that, as 
 
 soon as you were informed of the said plaintiffs' right, you 
 sent them back again : We, having regard to the matters 
 aforesaid, and on reading affidavits of notice of the said 
 motions, do therefore strictly command and enjoin you the 
 aforesaid defendants and your servants, workmen, 
 
 and agents, and all and every of you, under the penalty of one 
 thousiind pounds, to be levied upon your and each of your 
 lands, goods, and chattels, to our use, that you, and each and 
 every one of you, do from henceforth altogether desist from 
 copying, engraving, etclung, working, publishing, and selling 
 all or any of the aforesaid prints, until the further order of 
 our said Court of Chancery. Witness, &c. 
 
 (a) Injunciion to stay Proceedings in tlie Spiritual 
 Court, 
 
 George, &c. To A. B., and to all and every your attor- 
 nies, solicitors, agents, proctors, advocates, and assistants 
 whatsoever, and to every of you, greedng. We command 
 and strictly enjoin you, and every one of you, by these pre- 
 sents, that neither you, nor any of you, do for the future, alter 
 the receipt of this our writ, or a true copy thereof, proceed on 
 any hbel, action, suit, citation, sentence, or other matter what- 
 soever, which you or any of you have commenced, or shall 
 hereafter commence, on any matter or cause whatsoever, ni 
 the Court Christian, before die Right Reverend Father in 
 
 ( .) 1 Fowl. Ex. Pi. 27J.
 
 378 Al'PENDlX. 
 
 God, Jolin^ by divine providence, Bishop of Exclcr, or hi» 
 vicar-gencrai, commissary, surrogate, or other judge in spi- 
 ritualities whatsoever, in that behalf or otherwise, in any 
 ecclesiastical judge whatsoever, against J. S., touching or con- 
 cerning any of the matters or things mentioned or specified in 
 a certain English bill lately exhibited in our Court of Exche- 
 quer at Wesimhister by the said J. S. against you the said 
 A. B. ; but that you, and every of you, do surcease and desist 
 from the prosecution of all such libels, actions, suits, citations, 
 sentences, and other matters, and from all manner of proceed- 
 ings whatsoever thereupon, until you the said A. B. shall have 
 fully answered the said bill, and our said court shall have made 
 further order herein, admonishing you that, to which of your 
 hands this writ shall first come, you immediately give notice 
 thereof to the other persons named therein, under the for- 
 feiture of five hundred pounds ; which, if you neglect to obey 
 this our present command, we shall cause to be levied to our 
 use out of your goods and chattels, lands and tenements. 
 Witness, &c. 
 
 By order of court made the same day, and by the Barons. 
 
 Eliot. 
 
 (a) Tiijimction to slay Proceedings in the Court of 
 Admircdtij. 
 
 George, &c. To A. B., and to all and every your attor^ 
 nies, solicitors, agents, proctors, and advocates whatsoever, 
 greeting. For certain causes, the Barons of our Exchequer 
 at Westminster thereunto moving, we command and strictly 
 enjoin you, that, on receipt of this our writ, or notice thereof^ 
 by you or any of you liad, you do not institute any suit, or 
 
 {a) 1 Fowl. Ex. Ti 2/5.
 
 APPENDIX. 379 
 
 begin or further prosecute any citation, libel, or other process 
 or sentence thereupon, in our High Court of Admiralty, 
 against C. D., before the Right Worshipful Sir James Mar- 
 riott, Knight, the judge of our said court, touching any of the 
 matters or things contained in a certain petition or bill by him 
 the said C D. exhibited before the Chancellor and Barons of 
 our said Exchequer against you the said A. B., but that you, 
 and every of you, wholly desist from the several matters afore- 
 said, and all further proceedings thereupon, until you the said 
 A. B. shall have fully answered the said bill, and our said court 
 shall have made further order thereupon. Witness, &c. the 
 day of in the year of our reign. 
 
 By order of court made the same day, and by the Barons. 
 
 Eliot. 
 
 (rt) Iiijimction in the T^xchequer to stay Proceedhigs 
 in Chancery. 
 
 George, &c. To A. />*., v^c. greeting: Whereas J. S. hath 
 exhibited his English bill before the Chancellor and Barons of 
 our Court of Exchequer at Westminster, against you the said 
 A. B., praying to be relieved as to the matters in the said bill 
 contained ; and (amongst other things) praying to be admitted 
 to the equity of redemption of several lands and tenements in 
 the parish ofZ>. in the county of jB. by him mortgaged to you 
 the said A. B. And whereas you the said A.B. have, since 
 the exhibiting of the said bill, exhibited another bill in our 
 High Court of Chancery against the said J. S., touching anil 
 concerning the same matters as are mentioned and contained 
 in the said bill exhibited in our said Court of Exchequer by 
 the said J. S. against you the said A. B., and arc unjustly pro- 
 ceeding upon the said bill so exhibited by you in our said 
 Court of Chancery as is said: Wc therefore taku)g llio -iiid 
 
 {«) I Fowl. Ex. Pr, 270.
 
 380 
 
 APPENDIX. 
 
 premises into consideration, do command and strictly enjoin 
 you and every one of you by these presents, that neither you 
 nor any of you do for the future, after the receipt of this our 
 writ, or a true copy thereof, proceed against the said ./. S. 
 on the said bill, by you exhibited as aforesaid in our said 
 Court of Chancery ; but that you, and every one of you, do 
 from henceforth wholly surcease and desist fiom all manner of 
 proceedings whatsoever thereupon, until it shall be otherwise 
 ordered by our said Court of Exchequer, and this you are not 
 to omit under the penalty of five hundred pounds, which, if 
 you neglect this our command, we shall cause to be levied to 
 our use out of your goods and chattels, lands and tenements. 
 Witness, &c. 
 
 By order of court made the same day, and by the Barons. 
 
 Eliot. 
 
 (a) Injimction to quit Possession before Hearing. 
 
 George, &c. To the Sheriff of the county of greeting: 
 Wliereas /. S. hath exhibited his bill before the Chancellor and 
 Barons of our Court of Exchequer at Westminster against 
 A. 1)., praying to be relieved as to the several matters therein 
 mentioned, and particularly touching, &c. {here state the prayer 
 of the hill as the ground of the inJu?ictio7i) : We therefore com- 
 mand and strictly enjoin you, that immediately after your 
 receipt of this our writ you omit not, by reason of any liberty, 
 but enter the same, and go to the said messuages, tenements, 
 and lands, and forthwith remove, or cause to be removed the 
 said A. B. his tenants or assigns from the possession thereof, 
 and every part thereof; and put, or cause to be put the said 
 J. S., or those he shall appoint, into the possession thereof, 
 and of every part thereof. Witness, Sec. 
 
 By order of court made the same day, and by the Barons. 
 
 Eliot. 
 
 (fi) 1 Fowl. Ex. Pr. -JAS.
 
 APPENDIX. -381 
 
 (r/) Perpetual Injunction. 
 
 George, &c. To John Greeivjoood, and to all and singular 
 your doctors in the civil law, procurators, advocates, coini- 
 sellors, attornies, solicitors, and agents, greeting: WJiercas 
 you the said J. G. did, in Michaelmas term, in the twelfth 
 year of our reign, exhibit a bill of complaint before the Chan- 
 cellor and Barons of our Court of Exchequer, at Wcstminstci; 
 against Gecn-ge Stinton, doctor in divinity, 2?. S., C. D., and 
 E. F., thereby setting forth the following agreement: — 
 " Eighteenth July, one thousand seven hundi*ed and seventy- 
 one. An agreement then made between the Rev. George 
 Stmfo?i, doctor in divinity, rector of Nc-j:ingto7i, with its 
 appurtenances, concerning the rent of the tithes thereof, with 
 the several persons whose names are hereto set," {then follotnocd 
 the agreement with each person to the end of it): And whereas 
 by a decree made by the barons of our said court, on the 
 fourteenth day of November last, in the said cause, and also in 
 a cause between Francis Jacob, and J. L., W. K., and W. B., 
 plaintiffs, and you the said J. G. and others, defendants ; it is 
 (amongst other things) ordered and decreed, that an injunction 
 should be awarded to restrain you, the said J. G., from com- 
 mencing any action at law, or otherwise prosecuting or suing 
 the said occupiers, or any of them, for tithes in kind under the 
 said agreement: We do therefore in execution of the said 
 decree, hereby firmly enjoin and command you, and every of 
 you, that from and immediately after your receipt of this our 
 writ or notice thereof by you or any of you had, you or any of 
 you do not institute any suit, or begin or prosecute any citation, 
 libel, or other process or sentence thereupon, in any of our 
 ecclesiastical courts, or any action, bill, plaint, or execution, 
 at common law, against the said occupiers or any of them, 
 touching or concerning the payment of tithes under the afore- 
 said agreement; and hereof you are not to fail, under the 
 
 («) 1 Fowl. Ex. Pa. 'iJO.
 
 •382 APPENDIX. 
 
 penalty of five liundrcd pounds, which, if you neglect to obey 
 this our command, we shall cause to be levied to oui* use out 
 of your goods and chattels, lands and tenements. Witness, 
 Sir ,/. S. Knt. at Westminster, the fourteenth day of December, 
 in the sixteenth year of our reign. 
 
 By the said decree, and by the Barons. 
 
 («) Perpetual Injunction on a Bill taken pro confesso. 
 
 Georgk, &c. To C D. and to all and singular your 
 counsellors, attornies, and solicitors greeting ; "Whereas A. B. 
 hath lately exhibited his bill of complaint before the Chan- 
 cellor and Barons of our Exchequer, at Westminster, against 
 you the said C. D. defendant for relief (amongst other things) 
 touching an action at law lately commenced by you the said 
 C. D. against him the said A. B. as executor of one E. F. for 
 the matters in the said bill mentioned : And whereas you the 
 said C. D. have not yet answered the said bill, but are in con- 
 tempt for not so doing, and all our processes of contempt have 
 issued against you for want of your said answer : And whereas 
 by a decretal order made by the Barons of our said court, on 
 the day of reciting that a commission of 
 
 sequestration had issued for seizing and sequestering your real 
 and personal estates for your said contempt, and had been 
 returned into our said court, and that an order had been made 
 for the said cause to be put in the paper of causes, to be heard 
 upon the said sequestration so returned : It w'as thereupon 
 ordered and decreed by our said court, amongst other things, 
 that the bill of complaint of the said complainant should be 
 taken and deemed as confessed by you the said defendant ; and 
 that an injunction should issue, under the seal of our said 
 court, to restrain you, the said defendant, from proceeding any 
 further against the said A. B. in the said action at law, touching 
 
 {a) 1 Fowl. Ex. Pr. -254.
 
 APPENDIX. 
 
 383 
 
 the matters in the said bill mentioned: We do therefore, in 
 execution of the said decretal order, hereby firmly enjoin and 
 command you and every of you, that from and immediately 
 after your receipt of this our writ, or notice thereof, by you 
 or any of you had, you or any of you, do not prosecute the said 
 A. B. any further in the said action at law, touching all or any 
 of the matters in the said bill of complaint mentioned ; but that 
 you, and every of you, do from henceforth entirely surcease and 
 desist from any further proceeding against the said A. B. in 
 the said action at law, from entering up judgment, or suing 
 out or levying any execution thereupon, and this you shall in 
 no wise omit, &c. Witness, &c. 
 
 By the said decretal order, and by the Barons. 
 
 Eliot.
 
 384 
 
 APPENDIX. 
 
 Bill of Costs for a Plaintiff in an Injunctio7i Cause. 
 
 [From Turner's Chancery Practice, Vol. I. p. 354.] 
 
 In Chancery. 
 Mr. Rose Beckford. 
 
 Yourself against Joseph Darton. 
 
 Easter Term, 1815. 
 
 Taking instructions for bill 
 
 Drawing warrant to prosecute, and filling up same 
 
 on stamp _ » _ _ 
 
 Drawing bill, and fair copy, fol. 60 [a) 
 Fee to Mr. H. to settle and sign same, and clerk 
 Attending him _ _ _ - 
 
 Engrossing bill _ _ _ - 
 
 Paid for parchment and duty 
 Paid filing same 
 
 Paid for subpoena _ _ - - 
 
 Service thereof {h) - 
 The defendant having appeared, but not having 
 
 put in his answer, nor obtained any order for 
 
 time, paid for an attachment 
 Instructions for counsel to move for an injunction 
 
 to stay proceedings at law 
 Fee to Mr. H. to move - - 
 Attending him therewith, and attending Register to 
 
 draw up and enter order 
 Paid for order, duty, entry, and service 
 Paid for writ of injunction _ _ - 
 
 Copies, and service thereof on the defendant and 
 
 his solicitor _ _ _ _ 
 
 £. 
 
 s. 
 
 d. 
 
 
 
 13 
 
 4 
 
 
 
 7 
 
 6 
 
 3 
 
 
 
 
 
 2 
 
 4- 
 
 6 
 
 
 
 6 
 
 8 
 
 1 
 
 10 
 
 
 
 
 
 18 
 
 
 
 
 
 7 
 
 4 
 
 
 
 8 
 
 
 
 
 
 2 
 
 6 
 
 12 2 
 
 
 
 2 
 
 6 
 
 
 
 10 
 
 6 
 
 
 
 6 
 
 8 
 
 
 
 8 
 
 
 
 1 
 
 14 
 
 10 
 
 8 
 
 (a) The fair copy is included in the one shilling per folio allowed for drawing. — Ei'. 
 (6) Personal service in town five shillings, in the countiy ten shillings. If only one 
 defendant, personal service is not allowed. — £</.
 
 APPENDIX. 
 
 385 
 
 Drawing notice of motion, that the injunction might 
 
 extend to stay trial, copy and service 
 Attending you, taking instruction for affidavit in 
 
 support of the motion _ . - 
 
 Drawing the same and fair copy, fol. 1 G 
 Attending you, reading over and settling the same 
 Engrossing same, and paid for paper and duty 
 Paid oath . _ _ . - 
 
 Paid filing same, and for office copy 
 Abbreviating bill and affidavit, fol. 75 
 Making copy thereof for counsel, five brief sheets 
 Gave Mr. H. therewith and clerk - - _ 
 Attending him _ _ _ _ 
 
 Drawing affidavit of the service of notice of motion, 
 
 engrossing, duty, and oath 
 Paid filing, and for an office copy of same 
 Attending court on motion (a), when the injunction 
 
 was granted _ _ _ _ 
 
 Paid for writ of injunction - _ _ 
 
 Copies, and service thereof on the defendant and 
 
 his sohcitor _ _ . _ 
 
 Term fee, clerk and solicitor 
 Letters and messengers - _ _ 
 
 4 
 
 
 
 G 
 
 8 
 
 
 
 16 
 
 
 
 
 
 G 
 
 s 
 
 
 
 7 
 
 7 
 
 
 
 1 
 
 
 
 
 
 16 
 
 
 
 1 
 
 5 
 
 
 
 
 
 16 
 
 8 
 
 2 
 
 4 
 
 6 
 
 
 
 6 
 
 8 
 
 
 
 7 
 
 7 
 
 
 
 6 
 
 7 
 
 
 
 13 
 
 4 
 
 2 
 
 1 
 
 6 
 
 
 
 10 
 
 
 
 
 
 16 
 
 8 
 
 
 
 5 
 
 
 
 Trinity Term, 1815. 
 
 Paid for office copy, answer, fol. 54 - 
 Making close copy thereof [b) 
 
 Abbreviating same - - - - 
 Making a copy thereof for counsel, five sheets 
 
 Fee to Mr. H. with brief, to show cause against 
 
 dissolving injunction, and clerk 
 
 Attendinof him _ _ _ _ 
 
 3 
 
 3 
 
 
 
 
 
 9 
 
 
 
 
 
 18 
 
 
 
 
 
 16 
 
 8 
 
 3 
 
 5 
 
 G 
 
 
 
 6 
 
 8 
 
 (a) An attendance is always allowed where an affidavit, or any deed, &c. is to be 
 read in court ; and, by the late orders, an attendance is allowed on special motions, 
 thirteen shillings and fourpence each day. — Eil. 
 
 (ft) Not allowed in town causes. — E^/. 
 
 C C
 
 38() APPENDIX. 
 
 £, s. d. 
 Attending court on motion, wlicn the injunction 
 
 was ordered to be dissolved (a) - - 13 4. 
 
 Term fee, clerk, and solicitor - - J6 8 
 
 Letters and messengers - - - 5 
 
 Easter Term, 1816. 
 
 The defendant having obtained a dismissal of the 
 bill for want of prosecution, paid for a copy of 
 his bill of costs, fol. 12 - - -060 
 
 Attending taxing the same, clerk in court and 
 solicitor _ _ _ _ 
 
 Term fee, clerk and solicitor 
 
 Letters and messengers _ _ - 
 
 (a) iST. B. If the plaintiff, on the injunction being dissolved, should proceed no 
 further in the suit in equity, the defendant may, on the expiration of three terms, 
 move to dismiss the bill for want of prosecution. — Turner. 
 
 13 
 
 4. 
 
 16 
 
 8 
 
 5 
 

 
 APPENDIX. 
 
 387 
 
 Bill of Costs for the Defendant in the same Cause, 
 
 In Chancery. 
 Between Rose Beckford 
 
 Joseph Daeton 
 
 and 
 
 Plaintiff. 
 Defendant. 
 
 Bill of Costs of the Defendant. 
 Easter Term, 1815. 
 
 Charge. Tax Off. 
 
 £. s. (h £, J. d. 
 Attending and taking instructions 
 
 to appear - - - 6 8 
 
 Drawing warrant to defend, and stamp 7 6 
 
 Paid entering appearance - 6 8 
 
 Paid for office copy bill, fol. 60 3 10 
 
 Close copy thereof (a) - - 1 10 
 Attending, taking instructions for 
 
 answer - - - 13 4' 
 
 Drawing same, and fair copy, fol. S-i 2 H 
 
 Fair copy thereof for counsel {JS) 9 9 
 Fee to Mr. B. to settle and sign same, 
 
 and clerk - - - 2 4 6 2 6 
 
 Attending him - - - 6 8 
 
 Term fee, clerk in court, and solicitor 16 8 
 
 Letters and messengers - - 060 010 
 
 Trinity Term, 1815. 
 
 Attending, defendant reading over 
 
 answer as settled by counsel 13 4 
 
 (a) Not allowed in a town cause. 
 
 (6) Fair copies are included in the la per folio drawing, but never allowed wlicre 
 counsel drew tiic pleadings, and in strictness in no otlier cause but country causes, 
 
 c c 2
 
 388 APPENDIX. 
 
 Cliargc. Tax OfT. 
 
 £: s. (/. £. s. d. 
 
 
 
 6 
 
 8 
 
 
 
 1 
 
 
 
 
 
 3 
 
 4< 
 
 
 
 2 
 
 6 
 
 
 
 10 
 
 6 
 
 Enirrossinfj answer - - 1 7 
 
 Paid for parchment and duty, two 
 
 skins - - - 1 8 9 
 
 Attending the defendant reading over 
 
 the engrossment - - 13 4? 
 
 Attending him to the pubHc office to 
 get him sworn thereto 
 
 Paid oath _ _ _ 
 
 Paid filinfj answer 
 
 Instructions for counsel to move for 
 order to dissolve injunction, un- 
 less cause . - - 
 
 Fee to him to move 
 
 Attending him therewith, and attend- 
 ing register to draw up and enter 
 order - - - 6 8 
 
 Paid for order, entry, copy, and 
 
 ser\ace - - -090 006 
 
 Drawing and engrossing affidavit of 
 
 the service thereof, duty and oath 7 7 
 
 Paid filing same, and for office copy 6 1 
 
 Abbreviating bill and answer, fol. 60, 
 
 54._114, _ _ - 1 18 
 
 Two fair copies thereof for counsel, 
 
 ten sheets each - - 3 6 8 
 
 Two copies of the order nisi annexed 10 
 
 Fee to Mr. Solicitor- General and 
 clerk, with brief to move to dis- 
 solve injunction, the plaintiff 
 showing cause against the same 
 on the merits 
 
 Attending him 
 
 Fee to Mr. R. and clerk, with brief '3 5 6 2 6 
 . Attending him - 
 
 Attending court, when the injunction 
 
 was ordered to be dissolved II 
 
 5 
 
 7 
 
 6 
 
 
 
 6 
 
 8 
 
 3 
 
 5 
 
 6 
 
 
 
 6 
 
 8
 
 APPENDIX. 389 
 
 w 
 Charge. Tax Off. 
 
 £. 5. d. £. s. d. 
 
 Paid for order, entry, copy, and 
 
 service - - - 9 
 
 Term fee, clerk, and solicitor - 16 8 
 
 Letters and messengers - - 060 010 
 
 Easter Term, 1816. 
 
 Paid for Six Clerks' certificate of the 
 
 state of the pleadings - 3 4 
 
 Instructions for counsel to move to 
 dismiss bill for want of prose- 
 cution - - - 2 6 
 
 Fee to him to move - - 10 6 
 
 Attending him, and register, to draw 
 
 up, and enter order - 6 8 
 
 Paid for order, entry, copy, and 
 service _ _ _ 
 
 Drawing bill of costs, and copy, fol. 12 
 
 Warrant on leaving the same, copy 
 and service - - _ 
 
 Warrant to tax, copy, and service 
 
 Attending taxing, clerk in court (a), 
 and solicitor 
 
 Paid for report, &c. 
 
 Paid filing same, and for office copy 
 
 Attending the master for report, and 
 
 attending filing - - 6 8 
 
 Subpoena for costs, and personal ser- 
 vice in town (conditional) 
 
 Term fee, clerk, and solicitor 
 
 Letters and messengers 
 
 (a) The clerk in court did not attend; and the attendance of iiis writing clerk, or 
 agent, from the Si.x Clerks' oflicc, being objected to, Sir W. Pcpys, the master, disal- 
 lowed the attendance of the clerk in court, and tiie same was taken ofU — L"</. 
 
 9 
 
 
 
 
 
 1 
 
 
 
 8 
 
 
 
 
 
 
 4 
 
 6 
 
 
 
 
 4 
 
 6 
 
 
 
 
 13 
 
 4 
 
 
 
 6 
 
 8 
 
 17 
 
 6 
 
 
 
 2 
 
 6 
 
 5 
 
 10 
 
 
 
 
 13 
 
 
 
 16 
 
 8 
 
 5 
 

 
 INDEX 
 
 OF 
 
 PRINCIPAL MATTERS. 
 
 Page 
 ABATEMENT 129 
 
 Vide Proceedings at Laic. 
 ABRIDGEMENT, 
 
 CopjTight in 280 
 
 ACCEPTOR.— Vide Sureties. 
 ACCIDENT, 
 
 General doctrine as to . . . . 4 
 
 ACCOUNT, 
 
 General doctrine of . . . . .28 
 
 Of mines and timber .... 206. 211 
 
 Injunction where no account ... . 329 
 
 ACT OF GOD, 
 
 Waste from . ...... 150 
 
 ACTING, 
 
 Not a publication under the statute of Anne . . 273 
 
 Injunctions to restrain . . . . . ib. 
 
 ACTION OF WASTE 159 
 
 ADDITIONS, 
 
 CopjTight in . . . . . . 280 
 
 ADMINISTRATION OF ASSETS, 
 
 Injunction after decree for . . . . 32 
 
 ADMINISTRATOR 
 
 Restrained from collecting assets .... 299 
 ADMIRALTY, COURTS OF, 
 
 Injunctions to stay proceedings in . . . 1 10
 
 392 
 
 INDEX OF PRINCIPAL MATTERS. 
 
 Page 
 
 AFFIDAVITS, 
 
 
 To extend injunction to stay trial 
 
 . 81 
 
 When read in contradiction to answer 
 
 . 326 
 
 When not .... 
 
 . 108 
 
 When read by defendant 
 
 . 328 
 
 Of Title, 
 
 
 In copyright 
 
 . 274. 288 
 
 Interpleader 
 
 . 313, 314 
 
 Patents 
 
 . 323 
 
 Waste . . 
 
 . ib. 
 
 ALMANACKS, 
 
 
 Not prerogative copies 
 
 . 270 
 
 ALTERATION OF PROPERTY, 
 
 
 Waste by . . . . 
 
 . 149 
 
 AMENDMENT OF BILL, 
 
 
 After exceptions allowed 
 
 . 105 
 
 Motion for leave for 
 
 . 121 
 
 ANSWER, 
 
 
 Injunction for want of 
 
 . 51 
 
 ANCIENT LIGHTS.— Vide Nuisance, 
 
 
 APPEAL, 
 
 
 Orders to stay proceedings pending 
 
 . 318 
 
 APPEARANCE, 
 
 
 Injunction for want of 
 
 . 57 
 
 In special injunctions 
 
 . 322 
 
 ARABLE.— Vide Waste. 
 
 
 ASSIGNEES, 
 
 
 Restrained from making dividend 
 
 . 298 
 
 Vide Bankrupt. 
 
 
 ASSIGNMENT, 
 
 
 Of breaches. — Vide Proceedings at Latv. 
 
 
 Of copyright . . . , 
 
 . 274. 288 
 
 ASSIZES, 
 
 
 Trial not stayed just before 
 
 . • .84, 85 
 
 ATTACHMENT.— Vide Proceedings at Latv- 
 
 -Possession. 
 
 ATTORNEY AT LAW, 
 
 
 Service upon .... 
 
 . 55 
 
 ATTORNEY AND CLIENT, 
 
 
 General doctrine respecting . 
 
 . 13
 
 INDEX OF PRINCIPAL MATTERS. 393 
 
 Page 
 ATTORNEY GENERAL, 
 
 Wliether information by, necessary in cases of private 
 nuisance ...... 230 
 
 AWARD, 
 
 No injunction when under the statute of William . 42 
 
 BAIL, 
 
 Proceedings against . . . ... 72 
 
 BANK OF ENGLAND.— Vide Transfer of Slock— Special 
 
 Injunctions. 
 BANKER, 
 
 Bill of interpleader by . . . . • 333 
 
 BANKRUPT, 
 
 Whether injunction dissolved before his answer . 91 
 
 Wliether he would be restrained after sale of trade 
 from setting up again . . . . .312 
 
 Injunction against where vexatiously disputing his 
 commission . . .... 357 
 
 BANKRUPTCY, 
 
 Wliether an abatement . . . . . 1 30 
 
 BARON AND FEME.— Vide Husband—Special Injunctions. 
 BARRETRY, 
 
 Injunction in case of ...... 357 
 
 BIBLE, 
 
 Whether prerogative copy . ... 270 
 
 BILL OF EXCHANGE, 
 
 Negotiation of restrained .... 292 
 
 Vide Proceedings at Laiv — Special Injunclions. 
 
 OF LADING.— Vide Captain— Interpleader. 
 
 OF PEACE. — Vide Perpetual Injunctions. 
 
 BISHOP, 
 
 Cannot open mines ... . . 202 
 
 Injunctions by and against .... 202. 204 
 Vide Waste. 
 BOND, 
 
 Joint by mistake . . .... 8 
 
 BOOKS.— Vide Copyright. 
 BOUNDARIES, 
 
 Bills for settlins 361
 
 SQ'l' INDEX OF rRINClPAL MATTERS. 
 
 Page 
 BREACH 
 
 Of covenant. — Vide Covenant. 
 
 Of" injunction ..,...,. 69 
 BREWHOUSE.— Vide Nuisance. 
 BROCAGE, 
 
 Mortgage and place . . . . . .18 
 
 BURNING BRICKS.— Vide Nuisance. 
 
 CALENDARS, 
 
 Copyright in . . , . . . 282 
 
 CANAL, 
 
 Where persons restrained from digging . . . 315 
 
 Reparation if not directed on motion . . 330, 331 
 CAPTAIN 330 
 
 Vide Interpleader. 
 CARRIER, 
 
 Action by restrained . .... 358. n. 
 
 CASE FOR COURT OF LAW.— Vide Patents. 
 CASTS, 
 
 Copyright in . ...... 268 
 
 CAUSE AGAINST DISSOLVING, 
 
 Impertinence . . . . . . 96 
 
 Scandal 99 
 
 Exceptions . . , . . . ib. 
 
 Merits . . . . . .106 
 
 CERTIFICATE OF REGISTRY, 
 
 Injunction to restrain indorsement on ... 293 
 
 CHAMPERTY 18 
 
 CHANDLER'S SHOP.— Vide Nuisance. 
 
 CHATTELS, Specific 313 
 
 CHILD. — Vide Father — Special Injunctions. 
 CLERK IN COURT, 
 
 Service upon . . ..... 52 
 
 COAL mmES.-^Yiie Mines— Waste. 
 COLLUSION, 
 
 Waste by ...... 188 
 
 COMMISSION TO EXAMINE WITNESSES . . 85 
 COMMISSIONERS OF SEWERS.— Vide Nuisance.
 
 INDEX OF PRINCirAL MATTERS. 395 
 
 Page 
 COMMITMENT, 
 
 For breach of injunction . . . .78 
 
 COMMON INJUNCTION, 
 
 Effect of . . . . . . 68 
 
 COMPOSITION DEED.— Vide Creditors. 
 
 COMPOUNDING FELONY 18 
 
 CONCEALMENT.— Vide Patejits. 
 
 CONTINGENT REMAINDERS.— Vide Trustees to pre- 
 serve — Waste. 
 
 CONTINUING INJUNCTION 329 
 
 COPARCENERS, 
 
 Injunction between . . . . .170 
 
 COPYHOLD.— Vide Fine— Lord of Manor— Possession- 
 Waste. 
 
 COPYRIGHT 261- 
 
 ib. 
 ib. 
 265 
 ib. 
 ib. 
 ib. 
 
 Origin of equitable jurisdiction 
 
 Statutes ..... 
 
 As to books .... 
 
 8 Anne .... 
 
 41 G. 3. 
 
 54 G. 3. . 
 
 Author whose works had been published 
 more than twenty-eight years not 
 entitled to the benefit of it . . ib. 
 
 12 G. 2. . . . . . ib. 
 
 15 G, 3. . . . . . ib. 
 
 Prints . . . . . . ib. 
 
 8 G. 2. . . . . . ib. 
 
 7 G. 3. . . . . ^266 
 
 17 G. 3 ib. 
 
 Whether date and name of engraver to 
 
 be inserted . . . . • ib. 
 
 Necessary for the penalties by the 8 G. 2. ib. 
 Whether for action at law or bill in 
 
 equity doubtful . . . ib. 
 
 Lord Hardwicke and Lord Ellenborough 
 
 of opinion that not necessary . ib. 267 
 Lord Kenyon and Lord Alvanley coulra ib. 
 Assignee of print may mainU;iii action 
 under 17 G. 3 26S
 
 396 
 
 INDEX OF rRINCIPAL MATTERS. 
 
 Page 
 COPY RlGHT^{Continued). 
 
 Not necessary in such action to produce 
 the plate itself .... 268 
 
 Not piracy to make a fresli engraving 
 from the oi'iginal picture . . ib. 
 
 Sculptures and models . . . . ib. 
 
 38 G. 3. . . . . . ib. 
 
 54. G, 3. . . . . . ib. 
 
 Patterns . . . . . ib. 
 
 27 G. 3 ib. 
 
 34 G. 3. ■ . . . . . ib. 
 
 Omission of averment that the dai/ was 
 printed, aided by verdict . . . ib. 
 
 Prerogative Copyright, 
 
 Decision that no common law right . . . 269 
 
 What books are prerogative copies . , ib. 270 
 
 Whether Bible is , • . . . ib. 
 
 Almanacks not . , . . . ib. 
 
 Trials before the Lords . . . . 271 
 
 Sessions' paper at the Old Bailey . » 272 
 
 Construction of the statute of Anne . . ib. 
 
 Entry at Stationers' Hall not necessary . . ib. 
 
 For action at law . ... 273 
 
 For bill in equity ib. 
 
 Acting not a publication . . . ib. 
 
 Injunctions to restrain acting . . . ib. 
 
 Assignment must be in writing . . . 274* 
 
 Evidence of acquiescence for six years no proof 
 
 of legal transfer . . . . ib. 
 
 Not precluded from bringing an action by having 
 
 given a receipt . . . . ib. 
 
 Plaintiff nonsuited where it appeared that he had 
 declared that he had assigned . . . ib. 
 
 Musical composition within the statute . ib. 
 
 Composition on a single sheet . . . ib. 
 
 Though occupying one page of work with dif- 
 ferent title . . . . . ib. 
 Unpublished MSS. .... 275
 
 INDEX OF PRINCIPAL MATTERS. 397 
 
 Page 
 COPYRIGHT— (Continued). 
 
 First precedents of Injunctions to restrain the 
 publication of . . . . . . 275 
 
 Lord Clarendon's History . . . . ib. 
 
 Play taken down in short-hand . . . 276 
 
 Manuscripts left by clergyman for use of his own 
 parishioners . ... . . ib. 
 
 Of matters before the privy council , . ib. 
 
 Private Letters ... ... ib. 
 
 Publication restrained . . . . . ib. 
 
 Where bearing the character of a literary com- 
 position ....... ib. 
 
 Pope's Letters ... . . ib. 
 
 Lord Chesterfield's Letters . . 277 
 
 Not to all letters 278 
 
 Injunction refused where publication necessary to 
 clear defendant's character . . . ib. 
 
 Granted where the publication would be a 
 breach of trust ..... 279 
 
 Question whether publication would be restrained 
 where it would be injurious to the feelings of 
 individuals . . . . . ib. 
 
 Translation . . . . .280 
 
 Copyright in .... . ib. 
 
 Specification of Patent . . . . ib. 
 
 No copyright in . . . . . . ib. 
 
 Additions to a Work . . . . . ib. 
 
 Copyright in . . . . . . . ib. 
 
 Injunction granted to restrain publication of notes 
 to an old work .... ib. 
 
 Abridgment ... . . ib. 
 
 Copyright in bonafidc abridgment . ib. 
 
 Injunctions granted against colourable ones . ib. 
 
 Quotation .... 281 
 
 Allowed where fair and bondjide . . ib. 
 
 Not where so much is extracted as to make the 
 
 work a substitute for the original one . ib. 
 
 Whether the intention to pirate is necessary to 
 support an action . . . ib. n.
 
 398 INDEX OF PRINCIPAL MATTERS. 
 
 Page 
 COPYRIGHT— (Continued). 
 
 Extracts from the statutes, when permitted . 282 
 
 Road-books, Calendars, &c. . . ib. 
 
 Copyright in the particular work, not in the ge- 
 neral subject . . . . ib. 
 Injunctions, where granted . . ib. 283 
 Libel . . . . . ib. 
 No copyright in . . . ib. 
 Nor libellous or obscene prints . . ib. 
 Injunction or account will not be decreed in . ib. 
 Question whether an injunction will be granted 
 where a person wishes to stop the publication 
 of a work of which he repents . . ib. 
 Publication of a work as the work of another re- 
 strained . . . . ib. 
 Practice in Equity .... 284' 
 Formerly injunctions not granted except on a 
 
 clear legal right . . , ib. 
 
 Modern cases where the court has refused to 
 
 interpose . . . . 285 
 
 Observations of the judges in Miller v. Taylor , ib. 
 
 Overruled by Lord Eldon . . . 286 
 
 Present practice . . . ib. 
 
 Injunction granted where possession under colour 
 
 of title . . . ib. 287 
 
 Injunction not granted before a trial where the 
 
 right depends upon the effect of an agreement ib. 
 Nor where plaintiff has permitted others to sell the 
 
 work . . . . ib. 
 
 Affidavit of title required . . . 288 
 
 Not admitted after the answer . . ib. 
 
 Must state the assignment in writing . ib. 
 
 Case where this was dispensed with . ib. 
 
 On affidavit of agents, plaintiff being abroad . 289 
 
 , ^.Injunction continued or dissolved on inspection 
 
 by the court . . . . ib. 
 
 ' Where reference to master . . ib. 
 
 Cases in which the court made a decree . ib. 
 
 COSTS. — Vide Interpleader.
 
 INDEX OF PRINCIPAL MATTERS. 399 
 
 Page 
 
 COURTS OF LAW, 
 
 Injunctions noticed by . . . .135 
 
 COVENANTS, 
 
 Forfeiture for breach of . . ... 23. 25 
 
 Injunction to restrain breaches of, between landlord 
 and tenant . . • .198 
 
 Between other persons . . • • 308 
 
 Vide Trade — Proceedings at Law — Special In- 
 junctions — Waste, 
 CREDITORS, 
 
 Case before Lord Ellesmere, where, in obedience to a 
 protection, restrained from proceeding at law, be- 
 cause they would not come in under a composition 
 
 deed 358. n. 
 
 CRIMINAL PROCEEDINGS, 
 
 No injunction to restrain . .... 42 
 
 CUSTOM OF THE COUNTRY, 
 
 Vide Covenants — Waste. 
 CUSTOM OF LONDON, 
 
 Fraud upon . . . . ... 1 6 
 
 DEAN AND CHAPTER, 
 
 
 Vide Ecclesiastical Persons. 
 
 
 DEATH, 
 
 
 Not an accident against which relief . 
 
 . -6 
 
 Vide Proceedings at Lato. 
 
 
 DECREE, 
 
 
 Injunction after .... 
 
 . 36. 358 
 
 DEDIMUS, 
 
 
 Injunction upon .... 
 
 . 61 
 
 DELIVERY OF DECLARATION, 
 
 
 Effect of 
 
 . 68 
 
 DEMURRER, 
 
 
 Effect of .... 
 
 . 61 
 
 DESTRUCTION .... 
 
 . ITS 
 
 DISCOVERY 
 
 . 17 
 
 Vide Proceedings at Lato. 
 
 
 DISMISSAL OF BILL, 
 
 
 For want of prosecution 
 
 . 131
 
 ^^r 
 
 400 INDEX OF PRINCIPAL MATTERS. 
 
 Page 
 
 DISSOLVING INJUNCTION .... 118.326 
 
 Vide Proceedings at Law — Special Injunctions. 
 DITCH, 
 
 Not directed to be filled up on motion . . . 331 
 
 Vide Nuisance — Special Injunctions. 
 
 DIVORCE. 
 
 Vide Husband — Special Injunctions. 
 DORMANT SURRENDEREE, 
 
 Has an estate sufficient to support contingent re- 
 mainders . . . . . .169 
 
 May maintain bill to stay waste . . . ib. 
 
 DOWER, TENANT IN 
 
 Punishable for waste at common law . . .145 
 
 DRUNKENNESS, 
 
 Relief against advantage taken of . . .13 
 
 Injunction refused to restrain action for words alleged 
 to be spoken when drunk .... 258. n. 
 
 DUTCHY COURT, 
 
 Injunctions to restrain proceedings in . . .141 
 
 DYE-HOUSE, 
 
 Vide Nuisance. 
 
 ECCLESIASTICAL BENEFICE, 
 
 Presentation to, restrained 298 
 
 ECCLESIASTICAL COURTS, 
 
 Injunctions to stay proceedings in . . .137 
 
 To stay getting in assets pending litigation in . 301 
 Wide Proceedings in other courts. 
 ECCLESIASTICAL PERSONS, 
 
 Restrained from waste .... 201 
 
 Application of estovers by . . . .148 
 
 EJECTMENTS, 
 
 Injunctions to restrain ^56 
 
 -Practice at law to restrain a second till payment of the 
 
 costs of first ib. n. 
 
 ELECTION, 
 
 Injunction after plaintiff has elected to proceed in 
 equity . . . . .... 34
 
 INDEX OF PRINCIPAL MATTERS. 401 
 
 Page 
 
 ENGRAVINGS, 
 
 Copyright in 265,266 
 
 ENROLMENT. 
 
 Vide Patents — Specification. 
 
 EQUITABLE WASTE 177 
 
 ESTATE, SALE OF, 
 
 Injunction to stay . . . . • 291 
 EXCEPTIONS 
 
 Shown as cause . . . . .99 
 EXCHEQUER, 
 
 Practice of "~ ■ — "^ 
 
 As to service on attorney at law . . .54 
 
 Entering appearance . . .58 
 
 Time for answering . . . .59 
 
 Effect of common injunction . . 68 
 Permitting plaintiff" at law to proceed not- 
 withstanding injunction . . .76 
 Commissions to examine witnesses . . 86 
 Exceptions .... 102 
 
 Amendment after exceptions allowed . .105 
 
 Previous order . . . .107 
 
 Abatement . . . . . .130 
 
 Injunctions to stay proceedings in . . .139 
 EXECUTOR, 
 
 Injunction to restrain getting in assets . . • 299 
 EXECUTORY DEVISE, 
 
 Injunction granted where . . . • .170 
 
 EXPECTANT HEIR 14- 
 
 EX PARTE INJUNCTIONS . . . 320. 322' 
 
 FAMILY ARRANGEMENTS . . . .12 
 
 FARMING, 
 
 Fixtures set up for . . . . . 152 
 
 FATHER 
 
 Restrained from management of children . . 297 
 
 FERRY. 
 
 Vide Nuisance. 
 FINE, 
 
 Injunction against issue in tail to restrain reversal of 358. n. 
 
 I) D
 
 402 INDEX OF PRINCIPAL MATTERS. 
 
 Page 
 Fl'NE— (Continued). 
 
 Bill to settle general fine by copyholders . . 360 
 
 Vide King's Fine. 
 FIRE, 
 
 Accident by . . . . . .5 
 
 FIXTURES, 
 
 Removal of . . . . .... 131 
 
 Set up in relation of trade .... 152 
 
 For farming . . . . . ib. 
 
 FORECLOSURE. 
 
 Vide Mortgagee. 
 FORCIBLE ENTRY, 
 
 Doctrine on the statutes of . . . 323. 333 
 
 Injunction to restrain praying restitution on indict- 
 ment upon ...... 42. n. 
 
 FOREIGN COURTS, 
 
 ---Injunctions to stay proceedings in . . .143 
 
 Injunction after judgment in . . . . 354 
 
 FORFEITURE, 
 
 Relief against . . . . . . . 21 
 
 FRAUD, 
 
 General doctrine on . . . . . . 11 
 
 On acts of parliament, &c. . . . .16 
 
 GAMING TRANSACTIONS . . . .17 
 
 GARDENS, 
 
 Waste in . . . . . .148 
 
 GENERAL RELIEF, 
 
 Prayer for . . . . ... 48 
 
 GLASS-HOUSE. 
 
 Vide Nuisance. 
 GUARDIAN AND WARD, 
 
 General doctrine respecting . . . .13 
 
 Injunction to restrain intercourse with ward . . 297 
 GUARDIAN IN CHIVALRY, 
 
 Punishable for waste at common law . . , 145 
 
 HARBOURS. 
 
 Vide Nuisance.
 
 INDEX OF PRINCIPAL MATTERS. 
 
 HIGHWAY, 
 
 Vide Purpresture — Nuisance. 
 HOUSES, 
 
 Waste in 
 HOUSE OF LORDS, 
 
 Copyright in trials before 
 
 408 
 
 Page 
 
 . 150 
 . 271 
 
 r 
 
 ILLEGAL INSURANCE 18 
 
 IMPEACHMENT OF WASTE, 
 
 Effect of the words .... 
 IMPERTINENCE, 
 
 Reference of bill for . . 
 
 Of answer . . 
 IMPROVED MANUFACTURE, 
 
 Patent for .... 
 
 INDICTMENT, 
 
 No injunction to restrain proceedings upon 
 INDUCTION 
 
 Restrained by injunction 
 INFANT, 
 
 AppHcation of timber on estate of 
 
 In ventre sa mere, injunction on behalf of . 
 INFORMATION AT LAW, 
 
 No jurisdiction in equity to grant injunction to stay 
 proceeding upon ..... 
 Vide Nuisance. 
 INFORMATION IN EQUITY. 
 
 Vide Attorney General. 
 INJUNCTION. 
 
 See the following heads, Copyright — Interpleader — 
 Nuisance — Proceedings at Lavo — Proceedings in other 
 Courts — Patents — Perpetual fn junctions — Possession 
 — Purpresture — Special Injunctions — Setting up 
 Terms — Waste. 
 INNKEEPER, 
 
 Action ngoinst restrained . ... 3jS. n. 
 
 INTERPLEADER, 
 
 Definition of .... • :5iJ5, S^G 
 
 D D 'i 
 
 175, 17G 
 
 . Gl 
 . 96 
 
 . 253 
 
 . 4.2 
 
 , 298 
 
 209, 210 
 . 177 
 
 ^'
 
 404 INDEX OF PRINCirAL MATTERS. 
 
 Page 
 
 INTERPLEADER— ( Continued). 
 
 Incorrectness of Lord C. B, Gilbert's comparison of 
 
 with the doctrine of Intervention in the civil law 336. n. 
 
 By whom brought . . . ib. 337 
 
 Principle of interpleading bill . . , . ib. 
 
 Case of the Duke of Bolton v. Williams . . ib. 
 
 Angell V. Hadden . . . . 338 
 
 Langston v. Boylston . . . ib. 
 
 Wliere injunction refused, the plaintiff having 
 a good defence at law, and there not being 
 parties to interplead . . 339. n. 
 
 Whether captain may file a bill of interpleader where 
 one party claims under, and the other paramount to 
 the bill of lading . . . . ib. 340 
 
 Tenant 
 
 Cannot compel his landlord and a stranger to 
 interplead . . . . . . ib. 
 
 May file a bill where the rent is claimed by per- 
 sons in privity of tenure and contract . . 341 
 Mortgagor and mortgagee .... ib. 
 
 Trustee and cestuy que trust . . . ib. 
 
 Feme covert and husband where tenant has notice 
 
 of settlement to her separate use . . . ib. 
 Landlord and trustees of annuities subsequent to 
 
 the lease 342 
 
 Lessee of tithes against vicar and assignee under 
 insolvent act . . . . . . ib. 
 
 No objection to interpleader that the demand 
 of one of the defendants is legal, the other 
 equitable . . . . . . ib. 
 
 Person cannot maintain a bill who states himself 
 
 to be a wrong doer . . . , ib. 
 
 Sheriff improperly levying goods . . . ib. 
 
 Nor if plaintiff has granted possession of the goods 343 
 
 Benefit of interpleader cannot be obtained on 
 
 motion without bill . . . . ib. 
 
 Affidavit 
 
 That there is no collusion . , . . ib. 
 
 Plaintiff need not swear that bill was at his 
 own expense . . , . ib.
 
 INDEX OF PRINCIPAL MATTEllS. 40o 
 
 Page 
 INTERPLEADER— (Co«fm«erf). 
 
 Or without the knowledge of either of the 
 defendants ... ... '3i5 
 
 Court will not determine this affidavit to be 
 
 false on counter affidavit . . . ib. 
 
 Proceedings where collusion suspected ib. S-J-i 
 Injunction, 
 
 How obtained ..... 344 
 
 Question whether like common injunction, or 
 
 obtained on affidavit as in waste . . ib. 
 Cases where obtained on affidavit . . ib. 
 
 Where obtained though one of the defend- 
 ants had put in demurrer . . 345 
 Observations of Lord Rosslyn that interplead- 
 ing bill was on the footing of bill for in- 
 junction to stay waste . . . ib- 
 Whether plaintiff can obtain injunction without 
 bringing the money into court . . ib. 
 Lord Thurlow's observation that he cannot . ib. 
 Cases where it hud been obtained without . 346 
 Lord Hardwicke's observation that it was not 
 necessary .... ib. 
 
 Practice in Exchequer . . . . ib. 
 
 Prosecution of Suit, 
 
 Plaintiff must sue out subpoena to rejoin . ib. 
 
 Not entitled to his costs unless he sets down 
 the cause for hearing . . . ib. 
 
 Hearing, 
 
 Proceedings at . . . . 34-6, 347 
 
 Action, issue or case . . . . ib. 
 
 Decree and perpetual injunction • . ib. 
 
 Though one of the defendants made 
 
 default at the hearing , . . ib. 
 
 Though one of the defendants hud not 
 appeared . . . . . ib. 
 
 Though one of the defendants out of 
 the jurisdiction . . . ib. 
 
 Costs, 
 
 PlaiiitilVhas a lien on the fund . . • 348
 
 406 INDEX OF PIUNCli'AL MAT'JEllS. 
 
 Page 
 INTERPLEADER— (C'oH/wmerf). 
 
 If no fund given against the party wlio occasioned 
 
 the suit . . . . • 34-8 
 
 Plaintiff' must set down the cause for hearing to 
 
 entitle himself to . ... 346 
 
 As between defendants . . . 348, 349 
 
 Form of order in this case . . . ib. 
 
 Revivor 349 
 
 After cause heard and trial at law, no revivor if 
 plaintiff" dies . . . . . . ib. 
 
 INTERVENTION, 
 
 Doctrine of in the civil law . . . 336. n. 
 
 IRREPARABLE MISCHIEF 195 
 
 Vide Waste. 
 
 JOINTRESS, 
 
 Injunction against ...... 194 
 
 JOINT TENANTS, 
 
 Injunction between . . . . • 171 
 JUDICIAL WRIT 363 
 
 KING'S FINE, 
 
 Injunction for non-payment of ... • 358. n. 
 
 LABEL, 
 
 Injunction to restrain tradesman using another's 313, 314 
 LACHES, 
 
 Injunction refused where . . .156, 157. 287. 
 
 LANDLORD AND TENANT.— Vide Covenant — Liter- 
 pleader — Setting up Terms — Waste. 
 LENGTH OF TIME.— Vide Mines— Laches— Nuisance. 
 LETTERS, 
 
 Copyright in . . . , . . 276 
 
 LETTER MISSIVE 49 
 
 LIBEL, 
 
 No copyright in . ... 283. 289 
 
 No injunction to restrain publication of . . .315 
 LIGHTS. — Vide Nuisance. 
 LIMEKILN.— Vide Nuisance.
 
 INDEX OF PKINCirAL MATTERS. 107 
 
 P-ige 
 LIQUIDATED DAMAGES .... 22 
 
 LITERARY PROPERTY— Vide Copyright. 
 LORD OF MANOR, 
 
 "When an estate sufficient to support contingent re- 
 mainders . . . . . . 169 
 
 In what case might maintain bill to stay waste ib. 19G, 197 
 Restrained from digging or cutting timber . . IQt 
 
 Vide Fine — Perpetual Injunctions — Waste. 
 LOST BOND ...... 4 
 
 LUNATIC, 
 
 Application of timber on estate of . . . 209, 210 
 Tenants of restrained from committing waste on pe- 
 tition . . . . . .321 
 
 MANDAMUS, 
 
 No injunction to restraining proceedings on . . 4-2 
 MANUSCRIPTS, 
 
 Copyright in . . . . . . 275 
 
 MANUFACTURE, 
 
 Construction of the word in patents . . . 21.3 
 
 MAPS, 
 
 Copyright in . . . . . 2G6. 282 
 
 MARITAL RIGHT, 
 
 Fraud upon . . . . . . l.j 
 
 MARK, 
 
 No injunction to restrain tradesman's using another's 314? 
 MARKET.— Vide Nuisance. 
 MARRIAGE, 
 
 Fraud on . . . . . . 1.3 
 
 Brocage . . . . • .18 
 
 MARSHALLING SECURITIES . ... 38 
 
 MASTER'S REPORT, 
 
 Effect of . . . . . .97 
 
 MAYOR'S COURT, 
 
 Injunctions to stay proceedings in . . . .1 11 
 MERITS, 
 
 Showing cause on . . .... 106 
 
 METHOD, 
 
 Construction of the word in patents . . . 215
 
 408 INDEX OF PRINCIPAL IVIATTERS. 
 
 Page 
 
 MINES, 
 
 Waste in . ..... 154' 
 
 Grant of when presumed .... 157 
 
 Vide Prerogative — Waste. 
 
 MISTAKE 6 
 
 IN LAW 8 
 
 IN PLEADING 10 
 
 MODEL, 
 
 Not necessary in specification . . . 261 
 
 Copyright in . . . . . . 268 
 
 MODUS, 
 
 Injunction to Spiritual Court in cases of . . . 138 
 "MONOPOLIES.— Vide Patents. 
 
 MORTGAGEE, 
 
 Permitted to sue both at law and in equity . • 36 
 
 Not restrained from suing on bond after foreclosure 37 
 Restrained from waste .... 165 
 
 presenting to living . . . 299 
 
 In what cases receiver appointed against . . . 305 
 
 MORTGAGOR, 
 
 General doctrine as to . . . .14 
 
 Restrained from committing waste . . . 166 
 
 May cut underwood . . . . . ib. 
 
 MOTION, 
 
 Act not directed to be done upon . . . 330 
 
 Setting up terms not restrained upon . . . 352 
 
 Vide the heads referred to title, Injunction. 
 
 MUSICAL COMPOSITION, 
 
 Copyright in . . . . . • 274? 
 
 MUSTARD, 
 
 Injunction to restrain sowing ..... 200 
 
 NON-PAYMENT OF RENT, 
 
 Forfeiture for relieved against . . . . 23 
 
 NOTES.— Vide Copyright. 
 
 NUISANCE, 
 
 Jurisdiction in equity 222 
 
 Public 224 
 
 Ancient precedent in Exchequer . . . 225
 
 INDEX OF PRINCIPAL MATTERS. 409 
 
 Page 
 NUISANCE— (Con/fnuerf). 
 
 Injunction granted on petition . . • 225 
 
 Noxious trade ..... 226 
 Only granted to restrain such as are so at law ib. 
 
 Not to restrain building a house for the small pox ib. 
 
 burning bricks . . . . ib. 
 
 ^ Nuisances at law . . . , ib. 
 
 Noxious trades . . . . 227 
 
 Length of time will not legalise a nuisance ib. 
 To Highways, 
 
 By powder mills . . . . ib. 
 
 By ditches 228 
 
 Boughs or trees . . . . , ib. 
 
 Stage coaches . . , . . ib. 
 
 To Rivers . . . . . . ib. 
 
 To Hahbours •....•. ib. 
 
 Enumerated by Lord Hale . . . ib. 229 
 
 Commissioners of Sewers . . . . ib. 
 
 Authority of . . . . . ib. 
 
 Subject to the King's Bench .... ib. 
 
 To courts of equity . . . . ib. 
 
 Case where court refused to interpose against 
 them by injunction . ... 230 
 
 Information not absolutely necessary in case of 
 
 public nuisance . . • . ib. 
 
 Cases where relief obtained on bill . .231 
 
 Phivate Nuisances . • . . . ib. 
 
 Early precedents to restrain darkening windows . ib. 
 
 Foundation of the jurisdiction . . . 232 
 
 Determinations at law . . • . ib. 
 
 Presumption of grant after twenty years . ib. 
 
 Parol licence cannot be recalled . . ib. 
 
 If ancient window increased, new part may 
 
 be obstructed . . ... 233 
 
 If it has been shut up twenty years it loses 
 
 its privilege . . • . ib. 
 
 If building is altered, it is only entitled to the 
 same light it had before . . * ib. 
 
 Various other nuisances . . . , ib.
 
 410 INDEX OF I'lUNClPAL MATTEllS. 
 
 Page 
 
 NUISANCE— (Co«//«M^^). 
 
 Ferry or market ..... 233 
 
 Injunction to restrain nuisance to . . ib. 
 
 Where granted . . . 234? 
 
 Where refused • . . . ih. 
 
 Whether injunction will be granted without trial . ib. 
 
 Has been said that this is never done . . ib. 
 
 Cases in which injunction without trial . . 235 
 
 Not where it is a question of fact, whether the 
 
 matter complained of is or is not a nuisance ib. 
 
 Where it is in itself a nuisance injunction without 
 trial . . , . . . ib. 
 
 In what cases injunction granted till trial . . 236 
 
 Court unwilling to do so in cases of manufacture, 
 or where laches . . . . ib. 
 
 Injunctions to restrain actions at law for 
 nuisances, where party connived at the 
 erection of it . . . . 237 
 
 In a plain case of nuisance court will grant it ib. 
 
 Speedy trial directed . . . . . ib. 
 
 Motion to re-erect a nuisance refused . . . ib. 
 
 No objection to granting an injunction that the plaintiff 
 has also commenced an action at law . . . 338 
 Vide Purpresture. 
 NURSERYMEN, 
 
 Wliether entitled to remove trees at the end of their 
 term . . . . . .153 
 
 ORCHARDS, 
 
 Waste in ..... . 148 
 
 ORDER, 
 
 Form of in special injunctions . . • 325 
 
 For time . . . . • .61 
 
 Nisi . . . . . . . 95 
 
 On motion to dissolve in special injunctions , . 329 
 
 ORNAMENT, 
 
 Fixtures set up for . . • • .153 
 
 Trees planted for . . • . . 180 
 
 PARENTAL INFLUENCE . . • l'-2
 
 INDEX OF PRINCIPAL MATTERS. 411 
 
 Page 
 
 PARKS, 
 
 
 Waste in 
 
 . 14-8 
 
 PARTICEPS CRIMINIS 
 
 . 19 
 
 PARTNER, 
 
 
 Injunction to restrain from intermeddling 
 
 . 306 
 
 • dissolving partnership 
 
 307 
 
 PARTNERSHIP, 
 
 Fraudulent dissolution of . . . .16 
 
 PARTY, 
 
 Where injunction granted against person not a party 
 
 47. 320 
 PATENTS . . . . . . . 239 
 
 .Ancient abuse of the prerogative . . . . ib. 
 
 Statute of James . . . . . ib. 240 
 
 Specification not required by the act . . 241 
 
 Practice requiring commenced in Queen Anne's 
 time . . . . . . ib. 
 
 Time for enrolment of . . . . ib. 
 
 In what cases extended . . . ib. 
 
 Cannot be dispensed with . . . . 21'2 
 
 What may be the subject of a patent . . . ib. 
 
 Present construction more liberal . . • ib. 
 
 Only word used in the statute, manufacture . 243 
 
 Exposition of it . . . . ib. 
 
 A.S to the words method and principle ib. 245, 246, 
 
 247 
 Must be a neto manufacture . . . ib. 
 
 Previous sale, though by the inventor only, 
 
 renders the patent void . . . ib. 
 
 Sectcs, if merely known and not used . ib. 
 
 Nor if known abroad . . . ib. 
 
 May be for a compound article . . . 248 
 
 Or for an addition . . . . . ib. 
 
 ^ Patent must not be too extensive . . . 249 
 
 Specification ..... ib. 
 
 What description required in . . . ib. 
 
 Language of the patent explained by . . ib. 
 
 If it varies from the patent it will bo void 211), 'i.jO
 
 412 INDEX OF PRINCIPAL MATTEIIS. 
 
 Page 
 VATENTS—iContinued). 
 
 A term may be used in a different sense from the 
 
 ordinary one, if agreable to tlic custom of trade 251 
 Specification must be intelligible to persons con- 
 versant in the art . . . . ib- 
 
 Void if concealment . . . . ib. 
 
 If articles unnecessarily introduced . . ib. 
 
 If the most beneficial mode of making the patent 
 is not pointed out .... 252 
 
 If specification state what is not new . .253 
 
 As to the specification required for an improved 
 manufacture . . • • , ib. 
 
 Distinction must be shown between the n^w 
 and the old .... ib. 
 
 Reference to former specification . . ib. 
 
 Recital of first patent . . . . ib. 
 
 Case of Harmer v. Plane . . . 254- 
 
 Model not necessary . : . . 260 
 
 Practice in Equity . . . . ib. 
 
 Where there has been possession, injunction 
 
 granted before trial at law . . ib. 261 
 
 Secus, where the patent modern . . .261 
 
 Demurrer because right not first established at 
 law overruled .... 262. n. 
 
 Issue or action ..... 262 
 
 Account kept in mean time . . . ib. 
 
 Proceedings after trial at law . . . ib. 
 
 If the party contesting the patent has been 
 
 successful, entitled to costs . . . ib. 
 If patentee, injunction granted or revived . ib. 
 No revivor till result of the application for a 
 new trial is known . . . ib, 265 
 
 PATTERNS, 
 
 Copyright in . . . . . . 268 
 
 PAYMENT INTO COURT, 
 
 On obtaining common injunction . . .112 
 
 In interpleader ..... 345 
 
 PEACE, BILLS OF.— Vide Perpetual Injunctions.
 
 INDEX OF PRINCIPAL MATTERS. 413 
 
 Page 
 
 PEERAGE, 
 
 Privilege of . . . . . .49 
 
 PENALTIES, 
 
 Relief against . . . . . . 21 
 
 PERFORMANCE OF ACT, 
 
 Court will not direct it on motion . . . 330 
 
 PERMISSIVE WASTE . . . lU. 160 
 
 PERJURY, 
 
 When in proceedings in equity, examined anciently by 
 the court . . . . . . 42, 43 
 
 Injunctions to stay actions for . . . ib. 
 
 PERPETUAL INJUNCTION . . . . 352 
 
 Revivor of not necessary . . . . . ib. 
 
 In what cases decreed . . . ib. 
 
 After decree for performance of trusts . . 353 
 Upon sentence of foreign court of competent 
 jurisdiction . . . . . 354 
 
 Whether court will bind inheritance upon one verdict 
 only . . . . . . ib. 
 
 Opinion of Lord Northington that it must . ib. 
 
 Of Lord Clarendon . . . . 355 
 
 Case in Viner to the same effect . , . ib. 
 
 Where all the witnesses to prove testator's insanity 
 were perjured . . . . . ib. 
 
 Ejectments 
 
 Injunctions to restrain repeated ejectments 256, 257 
 Lord Ellesmere's observations respecting them 256. n. 
 Practice at law to restrain second ejectment till 
 the costs of the first are paid . . . ib. n. 
 Bankrupt, 
 
 Restrained from vexatiously disputing his com- 
 mission ..... 357 
 
 Barretry, 
 
 Actions restrained by Lord Ellesmcrc on tin's 
 ground . . . , . ib. 
 
 Multiplicity of Suits, 
 
 Bills to restrain . ... 358 
 
 In what cases . . . . ib. 
 
 Where one general right . . . ib.
 
 414 INDEX OF PniNCTPAL MATTERS. 
 
 Page 
 PERPETUAL INJUNCTION— (Con/mwc^). 
 
 By parson against parishioners . . 359 
 By parishioners to establish modus . ib. 
 Landlord against tenants . . . ib. 
 Tenants against landlord . . ib. 
 
 To establish toll . . . . ib. 
 
 Landlord enclosing under the statute of 
 Merton . . . . ib. 360 
 
 To settle a general fine . . . ib. 
 In what not. 
 
 Where right disputed between two per- 
 sons only . . . . ib. 
 
 By one copyholder to be relieved against 
 a fine .... 361 
 
 By one lord of manor against another ib. 
 
 Bill for settling Boundaries . . . ib. 
 
 Confusion of not sufficient ground . ib. 
 
 Must be some equitable circumstance 
 
 superinduced by the act of the parties ib. 
 
 Quit Rents, 
 
 Bill for recovery of , . . . 362 
 
 Only Hes where legal remedy gone . . ib. 
 Where lands of several liable to one rentcharge, 
 injunction to restrain party distraining on one 
 alone . . . . . .362 
 
 PETITION, 
 
 Where injunction granted upon .... 320 
 
 PETTY BAG, 
 
 Proceedings in stayed by order . ... 141 
 
 PIGEON HOUSE, 
 
 Injunction to restrain erection of . . 221', 225 
 
 Whether formerly a nuisance . . . ib. n, 
 
 PIRACY.— Vide Copj/right. 
 PLEA, 
 
 Effect of . . . . . . 61 
 
 POSSESSION, 
 
 Injunctions to Quiet before hearing . • 332 
 
 Practice in Star Chamber . . , . ib. 
 
 Ancient practice in Chancery . . . . ib.
 
 INDEX OF PRINCIPAL MATTERS. 415 
 
 Page 
 FOSSESmO"^— (Continued). 
 
 Object of tlie motion .... 332 
 
 Only as to corporeal hereditaments . . ib. 
 
 By analogy to the statutes of forcible entry . ib. 
 
 Granted on application of defendant . . ib. 
 
 Fallen into disuse in England .... 334? 
 
 Last determination by Lord Hardwicke . . ib. 
 
 Common in Ireland . . . . ib. 
 
 Account of practice there . . . ib. 
 
 Last determinations in House of Lords . . 335 
 
 Effect of . . . . . ib. 
 
 Does not prevent defendant suing at law . ib. 
 
 Making a lease . . . . ib. 
 
 Taking a distress . . . . ib. 
 
 Dissolved if plaintiff delays his suit . . ib. 
 
 Injunctions to Yield up, quiet, or continue . 363 
 
 Called the judicial writ . . . . ib. 
 
 Opinion of Lord Hardwicke that they originated 
 
 in James I.'s time erroneous . . ib. 
 
 Early precedents cited . . . 364< 
 
 Used in aid of a judgment at law . . ib. 
 
 How obtained .... 365 
 
 Service of writ of execution of decree 
 
 and demand . . . . ib. 
 
 Attachment . . . . ib. 
 
 Writ of injunction . . . ib. 
 
 Affects the tenant . . . ib. 
 
 How obtained . . . , ib. 
 
 Writ of assistance . . . ib. 
 
 Early precedents of . . . ib- 
 
 POWDER MILLS.— Vide Nuisance. 
 
 PRAYER, 
 
 Where injunction granted, though not specifically 
 
 prayed 48, 4-9. 321 
 
 PREACHING, 
 
 Injunction to restrain .... 358. n. 
 PREROGATIVE, 
 
 Crown, with bare reservation of, cannot grant licence 
 to dig mines . • • .155
 
 416 INDEX OF PRINCIPAL MATTERS. 
 
 Page 
 PREROGATIVE— ( Continued). 
 Vide Patents. 
 
 PREROGATIVE COPIES 269 
 
 PRESUMPTION.— Vide Me«c5—iVMwance. 
 PRESENTATION, 
 
 Injunction to restrain .... 298 
 
 PREVIOUS ORDER 107 
 
 PRINCIPLE, 
 
 Construction of the word in patents . . . 243 
 
 PRINTS, 
 
 Copyright in . . . . . 265, 266 
 
 PRIORITY OF SUIT, 
 
 Injunctions granted upon anciently . . .35 
 
 PRIVATE NUISANCE.— Vide Nuisance. 
 PRIVILEGE OF PEERAGE . . . . 49 
 
 PRIVY COUNCIL, 
 
 Injunction to restrain publication of matters before . 276 
 PROCEEDINGS AT LAW, 
 
 Injunction to stay .... 4? 
 
 Differ from prohibition ... . . 4? 
 
 Enumeration of cases in which a court of equity inter- 
 poses ..... . . . ib. 
 
 Accident . . . . . . ib. 
 
 Lost bond or other security . . . 5 
 
 No equity in favour of lessee upon destruction of 
 the house by fire . . ... 5 
 
 Nor purchaser after contract completed . . ib. 
 Upon death of occupier no account of mesne 
 
 profits . , ... 6 
 
 Upon death of joint obligee relief against the 
 assets of a deceased one . . . ib. 
 
 Mistake . . . . . . ib. 
 
 In drawing, engrossing, or cancelling an instru- 
 ment . . . . . . ib. 
 
 In account . . ... . ib. 
 
 In legacy . . . . .7 
 
 By arbitrators . . . . . ib. 
 
 Where joint bond is considered joint and several 8 
 Or the converse . . . . . ib. 
 
 Mistake in Law . . . . . ib.
 
 INDF.X OF PRINCIPAL :.!,\TTr.I{S. 117 
 
 rage 
 
 PROCEEDINGS AT LAW— (Continued). 
 
 First opinions that relief might be given in a case 
 of mistake in law . . . .9 
 
 Subsequent decisions to the contrary • .10 
 
 Doctrine of the civil law upon this point . ib. ii. 
 
 No relief against mistake in the conduct of a 
 cause at law . . . . .10 
 
 No relief against the neglect of forms required i)y 
 the registry act . . . ..II 
 
 Whether relief where the compliance has been 
 prevented by fraud .... ib. n. 
 
 FUAUD . . . . . . .11 
 
 Suggestio falsi ...... il). 
 
 Suppressio veri ...... ib. 
 
 Undue advantage taken of parental influence . 12 
 Duress ...... ib. 
 
 Poverty . ...... ib. 
 
 Ignorance of rights .... ib. 
 
 Weakness of intellect . . . . !,"» 
 
 Religious delusion .... ib. 
 
 Drunkenness . . . . . ib. 
 
 Of cestuy que trust . . . . . l.'i 
 
 Of ward . . . . . ib. 
 
 Client li 
 
 Expectant heirs .... . ib. 
 
 Sailors dealing for prizemoney . . ib. 
 
 Mortgagor .... ib. 
 
 Underhand Agreements .... ib. 
 Fraud on marriage articles . . . ib. 
 
 On marital riulit . . . . ].'> 
 
 Agreement to marry after tlie dcatli of a person 
 in loco parentis .... il>. 
 
 By creditors with debtors . . . il). 
 
 To prevent opposition to a bill in parliament ib. 
 Fraudulent dissolution of partnership and assign- 
 ment of property' . . . .1(1 
 Frauds on acts of parliament and legal ])r()vi- 
 sions ..... il>. 
 On the law of Ibrfeiture . . . il). 
 
 E E
 
 418 INDEX OF PRINCIPAL MATTERS. 
 
 Page 
 PROCEEDINGS AT I. A.\N— {Continued). 
 
 On the restraining statutes . . .16 
 Usury laws . . . . ib. 
 
 Bankrupt laws . . . . ib. 
 
 Registry act . . . . ib. 
 
 Revenue laws . . . . ib. 
 
 Mortmain act . . . . , ib. 
 
 Custom of London . . . ib. 
 
 On powers . . . ... 17 
 
 Fraudulent use of bond . . . . ib. 
 
 Discovery 19 
 
 Jurisdiction in equity concerning . . . ib. 
 
 Injunction to restrain proceedings on bond or 
 note where . • . . . 17 
 
 Fraudulent against creditors . . ib. 
 
 Usurious . . . i . . ib. 
 
 Gaming consideration . . . ib. 
 
 Stock jobbing . . . . .18 
 
 Illegal insurance . . . . ib. 
 
 Simony . . . . , ib. 
 
 Champerty . . . . ib. 
 
 Compounding i'clony . . . ib. 
 
 Marriage brocage . . . , . ib. 
 Place brocage . . . . ib. 
 
 Conditions contrary to good morals . ib. 
 
 Particeps criminis . . . .19 
 
 Lord Thurlow's opinion that relief might be 
 given to . . . . . ib. 
 
 In cases of public policy relief always given ib. 
 Cases doubted in which a court of equity 
 has given an account of the profits of an 
 illegal transaction . . .20 
 
 Relief against Forfeitures and Penalties, 
 
 Given where penalty is to secure a collateral 
 "^ object . . . . ... 21 
 
 Not where liquidated 'damages . . . ib. 
 
 Cases where the court have held the sum to be 
 a penalty ... . . . ib. n. 
 
 Where liquidated damages . . 22. n.
 
 INDEX or PRINCIPAL MATTERS. 419 
 
 Paga 
 PROCEEDINGS AT LAW— (Continued). 
 
 Injunctions to restrain proceedings at law for 
 penalty . . . .... '22 
 
 Refused where forfeiture by non-payment of in- 
 stalments . . . . . . . ib. 
 
 Covenants for renewal 2^ 
 
 Non-payment of Rent, 
 
 Practice before i Geo. 2. ... ib. 
 
 Rent allowed under that act to be paid into court 
 within six months . . ... ib. 
 
 Formerly one breach only could be assigned . 21' 
 8 and 9 Wm. 3. c. 11. landlord may assign several ib. 
 Before the statute if the verdict was for breach 
 
 by non-payment of rent, issue directed . . ib. 
 Particular of breaches may be obtained . . il). 
 If verdict on non-payment of rent landlord com- 
 pelled to go on others . . . 2i, 25 
 No relief again.st forfeiture of breach of covenant 
 to repair ... . . 25, 26 
 
 Whether against forfeiture for cutting timber, 
 quaere ... . . ib. 
 
 Or covenant to build . . . ib. 
 
 Injunctions in the Nature of Specific Perform- 
 ance — Vide hijunctions to restrc.in breach oj Co- 
 venants. 
 
 To restrain landlord proceeding in equity where 
 
 tenant is holding under agreement . . 27 
 
 Refused where it appears that tenant would not 
 be entitled to a lease . . . . ib. 
 
 Where he has committed a breach of cove- 
 nants agreed to be inserted in the lease 27, 28 
 Or is insolvent . . . . 28 
 
 Or has connnittcd waste . . . ib. 
 
 Secus where landlord has waived the for- 
 feiture ... . . ib. 
 
 Account, , . . • • ib. 
 
 Jurisdiction in . . . . . • 28, 29 
 
 Injunction granted where pluintill' cntitlLd to ac- 
 count ... .... 29 
 
 i: !• \>
 
 I'Ui) INDEX OF l^IUNCirAL INIATTERS. 
 
 I'agc 
 PROCEEDINGS AT LAW— (Conlinned). 
 
 Where complicated transactions between 
 landlord and tenant . . . . 29 
 
 Not where it is matter of set-oft" . . ib. SO 
 
 "Where partners, one creditor taking the goods, 
 restrained till the amount has been taken 
 under the partnership . . ib. 31 
 
 Injunctions afteh decree for administration 
 OF ASSETS . . . . . ib. 
 
 On application of executor or administrator . 32 
 
 Or of the heir ... . . ib. 
 
 Or of another creditor ... . ib. 
 
 How extended to stay trial . . . ib. 
 
 Not granted where plaintiff would be entitled to a 
 judgment de bonis propriis . . . . ib. 
 
 Or to costs de bonis propriis . . . . ib. 
 
 Granted where executors had obtained time to 
 plead, and then suffered judgment to go by 
 default . . . . . ib. 
 
 Not granted before decree . . . . 33 
 
 Nor where a decree for an account of the 
 demand of one creditor . . . ib. 
 
 Costs, 
 If the action commenced before the bill filed, 
 
 creditors may prove them under the decree . ib- 
 Until notice party must pay costs . . . ib. 
 After notice the creditor . . . . ib. 
 
 Affidavit by executor required . . ib. 34- 
 
 Injunction against action for irregularly serving 
 process . . . . . . . ib. 
 
 Injunction after plaintiff has elected to pro- 
 ceed IN EQUITY . . . . , ib. 
 
 Obtained on motion of course . . . ib. 
 
 If on false allegation, in what case reference to 
 master . . ..... 35 
 
 Plaintiff cannot be put to election before answer ib. 
 Nor if exceptions taken . . ib. 
 
 Nor before time for filing exceptions . ib. 
 Nor if plea . . . . . ib-
 
 INDEX OF I'llINXIPAL IMATTEllS. 4'21 
 
 Pajje 
 PROCEEDINGS AT I. k\\— {Continued). 
 
 Injunction after Decree to restrain Party 
 
 PROCEEDING FOR THE SAME MaTTER • • 36 
 
 Exception in the case of mortgagee . ib. 
 
 Mortgagee restrained where difficulty to get back 
 tlie title deeds ..... ib. 
 
 Mortgagee after Foreclosure proceedinc; at 
 L.wv ON THE Bond, Qu.i-;re . . .37 
 
 Better opinion that he might proceed . • il). 
 
 Injunction granted in Perry v. Barker on the cir- 
 cumstances, ib. ..... 38 
 
 Marshalling Securities . . . . ib. 
 
 Creditor restrained . . . . . ib. 
 
 Doctrine concerning the American loyalists ib. 39, 40 
 Sureties^ 
 
 Where discharged . . . .4-0 
 
 Injunction granted to restrain actions brought 
 against them . ..... ii). 
 
 Doctrine as to bills of" exchange ■ • • 41 
 
 Criminal Cases, 
 
 Injunctions not granted to stay proceedings on 
 
 indictment, mandamus, or prohibition . . 42 
 Exception where an indictment was to try a civil 
 right . . . . . . ib. 
 
 Order to restrain praying restitution on indict- 
 ment for forcible entry doubted . . ib. n. 
 Perjury in proceedings in equity formerly punished 
 by the court ... . . 1-2. ii. 
 
 Injunctions to restrain actions for . . ib. 
 
 Award, 
 
 No injunction to restrain proceeding upon award 
 
 under 9 Sz 10 W. 3. . . ib. 
 
 At what stage of phoceedin(;s (;iianted . . 13 
 
 Before or after conunencement of action ii). 
 
 To stay trial ...... ib. 
 
 Judgment . .... ib. 
 
 Execution ..... ib. 
 
 Proceedings under .... ib. 
 
 Court unwilling to interfere nhere piaintill" 
 lias Iain by till after trial .41-
 
 4<22 INDEX OF PRINCirAL MATTERS. 
 
 Page 
 rilOCr. ['.DINGS AT LAW— {Continued). 
 Tm what Manner granted. 
 
 Not on petition , . . ... 45 
 
 Formerly sometimes without bill filed . . ib. 
 
 llule at present not without bill previously filed 46 
 
 Exceptions 
 
 Where decree for administration of assets . . ib. 
 
 Where plaintiff" has elected to proceed at law . ib. 
 
 Where after decree plaintiff" is proceeding at law 
 
 for the same matter . . . . ib. 
 
 Where plaintiff' at law is proceeding against bail 
 
 or sheriff" . . . . . ib. 47 
 
 Where party undertakes to file a bill immediately 
 
 47, 48 
 This doubted by Lord Thurlow . . .48 
 
 Must be specifically prayed . . . ib. 
 
 Subpcena, 
 
 May issue before bill filed . . .49 
 
 Bill must be on the file before the return of . ib. 
 Persons having privilege of peerage must have 
 letter missive . . , . . ib. 
 
 When served, 
 
 At any time before 12 at night . . .50 
 
 Heturnable on the same day as it is sealed 
 before the court rises . . . ib. 
 
 Not on a Sunday . . . . . ib. 
 
 How served, 
 
 By delivering the writ, or showing and delivering 
 
 label ib. 
 
 Where more defendants than one . . . ib. 
 Where served, 
 
 At dwelling-house . . . . . ib. 
 
 If defendant keep house . . . . ib. 
 
 By sending under cover to the person to whom 
 
 defendant directed his letters to be sent . ib. 
 
 Abroad . . . . . . . ib. 
 
 Counting-house . . . . . . ib- 
 
 Chambers .... . . . ib.
 
 INDEX OF PRINCIPAL 3IATTERS. 
 
 42o 
 
 Page 
 
 PROCEEDINGS AT LAW— (Co«/?wu«/). 
 
 Not at lodgings wliich defendant has left a long 
 time before . . .... 
 
 With turnkey where prisoner at large on motion 
 Wliere in custody without .... 
 
 Substituted service, 
 On husband for wife 
 On wife for husband .... 
 
 On parents secreting children 
 
 On partners . ... 
 
 Former practice as to agents, &c. 
 In general not on clerk in court 
 Permitted on attorney employed at law in injunc 
 tion cause .... 
 
 Affidavit required for this 
 In Chancery. 
 
 On motion that service of subpoena on 
 
 the attorney may be good gervice 
 Lord Thurlow's opinion that it might ac- 
 company the application for the in- 
 junction, overruled 
 Affidavit need not state application to 
 the attorney to accept the subpoena 
 In the Exchequer. 
 
 Defendant's attorney applies to plaintiff's 
 attorney . . . . 
 
 Affidavit of refusal to accept subpoena . 
 No affidavit of merits 
 On motion for injunction affidavit ol' 
 merits required . . . . 
 
 In general without notice 
 
 Case where notice required 
 
 Sufficient if the general head of ccpiity 
 
 is verified by the affidavit 
 
 Variance between bill and affidavit fatal 
 
 Case where affidavit was dispensed with 
 
 Motion refused where no declaration 
 
 delivered . . . . . 
 
 52 
 ib. 
 ib. 
 
 ib. 
 ib. 
 ib. 
 il). 
 ib. 
 53 
 
 ib. 
 
 ib. 
 
 5i 
 
 ib. 
 
 ib. 
 ib. 
 
 5(J
 
 4fil< lNJ)i:X OK I'llJNCIPAL ^lATTERS. 
 
 I'itOCEEDINGS AT LA\W— {Continued). 
 
 Al'I'EAKANCE, 
 
 Irregularity in service of subpccna cured by ap- 
 pearance ....... 57 
 
 Not where service just before long vacation . ib. 
 
 If appearance entered cannot be struck out . ib. 
 
 Sometimes withdrawn on motion . . . ib. 
 
 Common injunction for want of appkarance . 57 
 
 Time for appearance in court of Chancery . . ib. 
 
 In a town cause . . . . . ib. 
 
 In a country cause 58 
 
 In the Exchequer ...... ib. 
 
 Affidavit ol' service left with clerk in court , 59 
 
 Attachment issued . ..... ih. 
 
 FOR Vi'ANT of answer, 
 
 Time for answering in Chancery , . . ib. 
 
 In Exchequer ...... ib. 
 
 Attachment issued . . . . ib. 
 
 Plaintiff entitled to injunction though anj^wer in 
 
 before the attachment . . . . ib. 
 
 Answer must be on the file ... .60 
 
 UPON ORDER FOR TIME . . . .61 
 
 UPv)N A DEDIMUS . . . . . ib. 
 
 Practice in Ireland . . . . . ib. n. 
 
 Reference for impertinence . . . . ib. 
 Plaintiff cannot move of course for injunction 
 
 pending it , ib. 
 
 Plea or demurrer, 
 
 Injunction not granted while depending . . ib- 
 ^'^^len demurrer may be filed . . . .62 
 Not where injunction has been granted on a 
 
 dedimus . . . . . ib. 
 
 May be argued out of their course . . . il>. 
 
 Practice in Exchequer . . . . . ih. 
 
 Where defendant pleads, demurs, and answers . ib. 
 Where a demurrer has been overruled, plaintiff 
 put in tlie same situation iis if it had not been 
 
 filed 63
 
 INDEX or I'UIXCIPAL MATTERS. 425 
 
 Page 
 PROCEEDINGS AT LAW— [Continued). 
 
 Injunction wliere defendant has appeared or an- 
 swered in time . • • . <')i- 
 Special injunction sometimes granted before an- 
 
 swer 
 
 ib. 
 
 Where plaintiff has had no opportunity of 
 obtaining common injunction . . ib. 
 
 Service of injunction, 
 
 How served . . • . . GO 
 
 Where at defendant's last place of abode . . ib. 
 Where personal service dispensed with . ib. 
 
 Where party hears the order . • ib. 
 
 Where retired before order pronounced 67 
 Where from general information . . ib. 
 Where from being informed by plaintiff's 
 solicitor . . • 325. n. 
 
 Effect of common injunction, 
 In Exchequer, 
 
 In town cause stays all farther proceedings . 68 
 Not in country cause in issuable terms if de- 
 claration delivered . . . . ib. 
 In Chancery, 
 
 Where no declaration delivered restrains all 
 
 proceedings .... ib. 
 
 Where declaration delivered plaintiff" at law 
 may proceed to trial . • .69 
 
 Breach of injunction, 
 
 Delivery of declaration . • . ib. 
 
 Demurrer and judgment at law no breach . . ib. 
 Nor interlocutory judgment . • .70 
 
 Scire facias ..... >h. 
 
 Rule to show cause why an attachment siiould 
 
 not issue on award no breach . . • / 1 
 
 Nor showing cause against a rule for a new trial ib. 
 Where attachment for non-payment of costs a 
 
 breach '"• 
 
 Where plaintiff is joint obligor and obligee gives 
 
 sherifl' notice not to take plaintifi' . . .72 
 Whpther common injunction prevents entry ib.
 
 426 INDEX OF PRINCIPAL MATTERS. 
 
 Page 
 
 PROCEEDINGS AT luKSW— {Continued). 
 
 Proceeding against bail a breach . . . 72 
 
 Distinction by Lord Ilardwickc between bail 
 
 above and bail below . . . .73 
 
 Now disregarded . . . . ib. 
 
 Proceedings against slierifF a breach . . ib. 
 
 Ruling him to bring in the body . . . ib. 
 
 Or pay over money • • • . ib. 
 
 No breach where sheriff voluntarily pays the 
 
 money . . . . . ib. 
 
 But party would be ordered to pay it into court 74 
 Injunction where sheriff sued in fresh action . ib. 
 Commitment for breach . . . .75 
 
 Ancient practice . . . . ib. 
 
 Modern practice . . . .76 
 
 Motion that defendant may stand committed ib. 
 Payment of costs . . . . . ib. 
 
 Cases in exchequer where defendant is per- 
 mitted TO proceed at lav/ . . . ib. 
 Common injunction extended to stay trial . 78 
 Notice necessary . . . . ib. 
 Wliere commission to examine witnesses . 79 
 "VMiere several defendants . . . ib. 
 Refused where answer filed . . .80 
 Granted where defendant has submitted to 
 exceptions . . . . . ib. 
 Motion cannot be made at the same seal or same 
 
 day that common injunction obtained . . ib. 
 Exception under what circumstances . . ib. 81 
 What affidavits necessary . . . .81 
 
 Once required to state specific discovery . ib. 
 Afterwards great laxity in the practice . ib. 
 
 Present practice . . . 82, 83, 84- 
 
 Where decree for administration of assets . 84 
 Affidavit may be filed the day before the 
 
 motion . , . . . ib. 
 
 Application refused immediately before the 
 
 assizes .... Si, 85 
 
 Commission to examine witnesses . . .85 
 
 •Affidavit necessary for . . . • ib.
 
 INDEX OF PRINCIPAL MATTERS. 4127 
 
 Page 
 PROCEEDINGS AT LAW— (Continued). 
 
 In Exchequer not granted before answer . . 86 
 In Chancery before answer on bill of discovery . ib. 
 Cases where granted before answer though bill 
 
 prayed relief . , . . .86 
 
 Motion cannot be made unless defendant is in 
 contempt . . . . .87 
 
 Witnesses should be named . . . ib. 
 
 In Exchequer, money must be paid into court . ib. 
 Terms in Cliancery . . . . ib. 
 
 Injunction irregularly granted may be discharged 88 
 
 \Miere irregularly waived . . . ib. 
 
 By putting in answer . . . ib. 
 
 Not by moving for time . . . ib. 
 
 Motion to dissolve 
 
 Cannot be made before answer . . . ib. 
 
 May the moment the answer is in . . ib. 
 
 Costs of attachment must first be paid . . 89 
 
 Injunction continued because defendant liad not 
 signed his answer .... ib. 
 
 Motion of course . . . . . ib. 
 
 Should be in open court .... ib. 
 
 When brief should be delivered . . . ib. 
 
 Injunction not dissolved till all defendants an- 
 swered . . . . . . . ib. 
 
 Exceptions . • . . ib. 90, 91 
 
 Whether where bankrupt is a party to a 
 bill against his assignees . . 91, 92 
 
 Order to stay trial cannct be discharged se- 
 parately . . . • .93 
 Special injunction after answer to stay trial till 
 further order, dissolved as to trial only . . 9t 
 Order nisi . . . . . .95 
 
 How entered and served . . . ib. 
 
 If no cause, injunction dissolved on motion and 
 
 production of affidavit of service . . . ib. 
 Reason of the order nisi . . • . ib. 
 
 Not necessary where exceptions have been taken 
 and overruled . ..... ib.
 
 4^8 INDEX OF I'llINClPAL MATTERS. 
 
 Page 
 
 PROCEEDINGS AT l.^^N— {Continued). 
 
 Where plea is ordered to stand for answer, de- 
 fendant cannot move absolutely . . . 9G 
 
 ib. 
 96 
 
 SecKs, where allowed 
 Cause against dissolving 
 Reference of answer for impertinence, 
 
 Former opinions that it was not cause 
 
 Present doctrine . .... 
 
 Time for procuring report 
 
 Order for reference need not be previously ob 
 tained ..... 
 
 ib. 
 ib. 
 
 97 
 
 ib. 
 
 ib. 
 ib. 
 100 
 ib. 
 ib. 
 ib. 
 
 Effect of master's report . . . ib. 98, 99 
 
 Impertinent matter need not be expunged . 89 
 
 Scandal . . . . . .99 
 
 Exceptions, 
 
 Need not be actually filed 
 
 Allegation that answer is insufficient, not cause 
 
 When to be filed 
 
 In Chancery . . 
 
 In Exchequer 
 Practice in Chancery 
 Time for obtaining master's report. 
 
 Effect of master's report . . .101 
 
 Where injunction has been extended to stay 
 trial, the order falls on master's report of 
 insufficiency . ... . ib. 
 
 Injunction not supported by exceptions to 
 
 master's report . . . ib. 102 
 
 Wliere exceptions allowed by master, and 
 
 exceptions to his report allowed , . ib. 
 If master reports answer sufficient, injunction 
 continued . . . . . ib. 
 
 Practice in exchequer . . . . ib. 
 
 Showing exceptions generally . . .103 
 
 Order of 7 May, 1794? . . . . ib. 
 
 Opening material exception . . . . ib. 
 
 Practice upon . . . . . lO^ 
 
 Injunction not obtained except upon report of 
 iusufficiency ..... 105
 
 INDEX or PllINCIPAL MATTERS. l-Si!) 
 
 I'd-.- 
 IPROCEEDINGS AT LA\\—(Conti7iued). 
 
 Where defendant submits to answer exceptions . !().'» 
 Amendment after exceptions .... il). 
 Is a motion of course .... il). 
 
 Further answer cannot be received after service 
 
 of the order ..... ib. 
 In Exchequer furtli-jr answer cannot be put in 
 
 after exceptions . . . • . ib. 
 
 In Chancery at any time before service . . UMJ 
 Practice where plaintiff neglects to amend . . ib. 
 Cause on the merits . . . . . ib. 
 
 Not on bill for discovery . . .107 
 
 Time for showing cause enlarged, on undertaking 
 
 not to except .... il). 
 
 Previous Order in Exchecjuer . . . . ib. 
 
 How obtained . . . . . ib. 
 
 Effect of 108 
 
 Affidavits, 
 
 Cannot be read against answer . . . ib. 
 
 Case of Isaacs v. Humpage overruled . ib. 
 
 Answer is only evidence as to facts to whicb 
 
 other testimony could be received . . ib. 
 
 Cases where affidavits may be read in supjHirt of 
 
 allegations made by the bill . . 10!), 1 10 
 
 Whether bankrupt's answer may be read against 
 
 his assignees . . , . . .111 
 
 Where defendant refers to the answer of a co- 
 defendant ..... ib. 
 Continued TO the HEARING . . . 112 
 Never as matter of course . . . ib. 
 Payment of money into couur . . • ib. 
 Where verdict at law . ... ib. 
 Or award ..... ib. 
 Or money sworn due by the answer . . ib. 
 Old practice as to this .... il). 
 Time for payment . . . . 1 1 .'J 
 Not done where matter confessed in answer suf- 
 ficient for relief . • ■ ib- 
 Nor upon the answer of executor or a stranger 
 to the facts . . . . . ib.
 
 430 INDEX OF TRINCIPAL MATTERS. 
 
 Page 
 
 PROCEEDINGS AT -i.AW— [Continued). 
 
 Case in the Exclicqucr where refused 
 
 under the circumstances . .113 
 
 Where granted . . .115 
 
 Not paid out except where delay on the 
 
 part of defendant . . .116 
 
 Where defendant, who has recovered a 
 
 verdict, is abroad . . . ib. 
 
 In this case affidavit necessary . .117 
 
 Tenant filing injunction bill, required to 
 pay money into court . . . ib. 
 Dissolved, 
 
 If cause not prosecuted to a hearing . . .118 
 Where sufficient defence by answer . . ib. 
 
 Where plea allowed . . . . ib. 
 
 Where cross bill not answei*ed . . . ib. 
 
 Not dissolved on master's report against title . ib. 
 
 Revived, . . . . . . 119 
 
 Where dissolved on plaintiffs having failed in pro- 
 curing master's report in time, and answer 
 afterwards reported insufficient . . ib. 
 
 Secns on reference for impertinence . . ib. 
 
 Where injunction has dropped in consequence of 
 amendment . . . . . ib. 
 
 Or dissolved on merits and afterwards amended . ib. 
 Not revived where master's report of insufficiency 
 
 has been overruled on exceptions . . 120 
 
 Nor where dissolved on the merits and bill found 
 for perjury . . . , . ib. 
 
 Amendment . . . . . ib. 
 
 Effect of . . . . . . ib. 
 
 Lord Bathurst's opinion . . . ib. 121 
 
 Present doctrine that injunction drops by . . 121 
 Motion for leave to amend without prejudice to 
 injunction . . . . . ib. 
 
 Sometimes to re-amend . . . . ib. 
 
 Aflidavit required . . . . ib. 
 
 Costs of . . 122 
 
 Where before answer . . . .123
 
 INDEX OF PRINCIPAL MATTERS. 431 
 
 Page 
 PROCEEDINGS AT I. K\Y— {Continued). 
 
 Refused where answer has come in and not been 
 
 excepted to . . • • .124' 
 
 Where exceptions taken, order to amend cannot 
 be obtained . . .... ib. 
 
 Amendment where injunction dissolved on the 
 
 merits . . . • . ib. 
 
 Injunction not revived of course, for default of 
 
 answering the amendments . . . ib. 
 
 Special motion required . . . . .126 
 
 Defendant must be in default . . .127 
 
 Not necessary that he should be in contempt . ib. 
 Affidavit necessary . . . . ib. 
 
 Defendant may move on affidavit, before answer, 
 to dissolve . . . . .128 
 
 Where no injunction obtained on original bill, 
 
 whether of course on amended . . . ib. 
 
 Determinations to that clfect . . .129 
 
 Principle to the contrary . . . ib- 
 
 Abate.mext . . . . . ib. 
 
 By death ... . . ib. 
 
 Bankruptcy of plaintiff . . . . ib. 
 
 In Exchequer, and earlier cases in 
 
 Chancery, no abatement . . 130, 131 
 
 At present in Chancery seats . . ib. 
 
 In Exchequer, assignees required to file 
 
 a supplemental bill within a fortnight 133 
 
 Dismissal of bill for want of pkosecution . 13-t 
 
 Motion for, without notice . . ,. ib. 
 
 Injunction no objection . . . . ib. 
 
 Showing cause against injunction, not a proceed- 
 ing to prevent dismissal . . . ib. 
 Bill sometimes restored . . , . ib. 
 Not where costs, the sole question . . . ib. 
 Defendant may set down the cause, term after 
 publication ..... 135 
 
 Injunctions noticed by courts of law . ib. 
 
 Formerly practice otherwise . . ib.
 
 4<32 INDEX OF PRINCIPAL MATTERS. 
 
 Page 
 PROCEEDINGS AT 'LAW—{CouLimicd). 
 
 Defendant liaving obtained injunction, not 
 
 entitled to the same notices, &c. . .130 
 Judgment of non-pros not signed pending 
 
 injunction . ... ib. 
 
 Scire facias not necessary where plaintiff has 
 
 been restrained . . . . ib. 
 
 Judge will not take cause out of its course 
 at nisi prius to defeat injunction . . ib. 
 PROCEEDINGS IN OTHER COURTS. 
 
 SnUITUAL COURT, 
 
 Injunction to stay proceedings in . . 137 
 
 Where modus set up and denied . . ib. 138 
 
 Not if admitted . . . . . . ib. 
 
 Nor vipon mere suggestion of modus . . ib. 
 To restrain proceeding for a legacy, till cause in 
 
 equity determined . . . . ib. 
 
 Where trustee is suing . . . ib. 
 
 Father . . . . . ib. 
 
 Husband . . . . . ib. 
 
 To restrain suit for tithes . . .139 
 Where accounts between parson and pa- 
 rishioner . . . . . . ib. 
 
 Injunctions granted by the Star-chamber . . ib. 
 Exchequer, 
 
 Injunctions from court of Chancery to Exchequer ib. 
 
 and Exchequer to Chancery . . . ib. 
 Old cases where injunctions granted in favour of 
 
 persons privileged, as accountants , . 140 
 Where a decree in the Exchequer has not been 
 
 complete, cause heard in Chancery . . ib. 
 Injunction refused before hearing in Chancery, 
 
 having been before refused in Exchequer . ib. 
 Admiralty courts. 
 
 Where injunction to refused . . . ib. 
 
 Where granted . . . . . ib. 
 
 Court of wards .... . 141 
 
 DuTCHY court ... . . . ib. 
 
 Mayor's court .... ib.
 
 INDEX OF PRINCIPAL MATTERS. 483 
 
 Page 
 
 PROCEEDINGS IN OTHER COURTS— (Contiiiued). 
 
 Court of Stannaries .... 141 
 
 Petty Bag . .- . . • • il>- 
 
 Foreign Courts, 
 
 Ancient determination that no injunction could 
 be granted to . . . . ili. 
 
 Principle to the contrary 
 Cases where injunctions granted to . . 1 i2, 14- .'5 
 Injunctions only on special motion . • . 144' 
 
 PROHIBITION, 
 
 Nature of . . . . . . 4< 
 
 No injunction to restrain proceeding upon . . 4'2 
 
 PROPERTY PENDENTE LITE, 
 
 Injunction granted to protect . . • 301 
 
 PUBLIC POLICY 19 
 
 PULLING DOWN HOUSES, 
 
 Never ordered on motion . . . .331 
 
 PCJRCHASER IN POSSESSION, 
 
 Restrained from waste . . . .170 
 
 paying purchase money 
 
 PURPRESTURE 
 
 Definition of . . . . • 
 
 Remedy at common lavv- 
 
 in equity . . ... 
 
 Judgment on information of intrusion 
 
 . on information in equity 
 
 Inquiry whether beneficial to the crown that it 
 
 should remain 
 Not where it is also a nuisance 
 Precedents of decrees in Exchequer 
 
 19.3 
 292 
 229 
 
 ib. 
 
 ib. 
 
 ib. 
 223 
 
 ib. 
 
 ib. 
 ib. 
 ib. 
 
 QUOTATION, 
 
 How far allowed . . . . . 2S1 
 
 QUIETINC; POSSESSION.— Vide Possession. 
 
 RECEIVER, 
 
 When appointed . . . • • 302 
 
 REFERENCE TO MASTER, 
 
 Ofhiil tor impertinence • . . .61 
 
 F F
 
 43'i INDEX OF PRINCIPAL MATTERS. 
 
 Page 
 
 KEFERENCE TO MASTER— (Continued). 
 
 Oi" answer . . . . . .96 
 
 for scandal . .... 99 
 
 . for insufficiency . . . . . ib. 
 
 Of publication alleged to be pirated . . • 289 
 
 REGISTRY, 
 
 Injunction to stay indorsement of certificate of . 29.S 
 
 REGISTRY ACT/ 11 
 
 RELIGIOUS DELUSION . . . . .13 
 
 RENEWAL, COVENANTS FOR . . . 23 
 
 RENT, 
 
 Forfeiture for non-payment of ... 23 
 
 Payment into court by tenant filing injunction bill . 117 
 
 REVIVOR 119 
 
 After amendment . . . . . . 1 26 
 
 After verdict in favour of patent .... 262 
 
 Not necessary in perpetual injunction . . . 352 
 
 Vide Abatement — Proceedings at Lata. 
 
 RIVERS. — Vide Purprestures and Nuisances, 
 
 ROAD BOOKS, 
 
 Copyright in . . .... 282^ 
 
 SAFFRON, 
 
 
 Injunction to restrain planting 
 
 . 200 
 
 SALE OF ESTATE, 
 
 
 Injunction to stay . ... 
 
 .291 
 
 SCANDAL. — Vide Drunkenness — Reference. 
 
 
 SCOTLAND, 
 
 
 Injunction to stay proceedings in 
 
 . 142 
 
 SCULPTURES, 
 
 
 Copyright in . . . " . 
 
 . 268 
 
 SECURITIES, 
 
 
 Marslialling . . 
 
 . 38 
 
 SERVICE, 
 
 
 Of subpoena .... 
 
 . 50. 323 
 
 Of injunction . . . . 
 
 . 66. 322 
 
 SESSIONS PAPER, 
 
 
 Copyright in . . . . . 
 
 . 272
 
 INDEX OF PRINCIPAL MATTERS. 435 
 
 Page 
 
 SETTING UP TERMS, 
 
 Parties restrained from .... 34-9 
 
 Averment necessary that they are outstanding . ib. 
 
 May be met by negative plea . . ib. 
 Tenant restrained from setting up a lease against his 
 landlord, where judgment had been obtained against 
 him and his landlord by the negligence of the latter, 
 
 and he had attorned .... 350 
 
 Person who had recovered in ejectment also restrained 3.51 
 
 Duration of the term unimportant . . . ib. 
 Not done against purchaser for valuable consideration 
 
 without notice . . . . . ib. 
 
 Not done upon motion .... 352 
 SHERIFF, 
 
 Proceeding against how restrained . . .72 
 
 Cannot file bill of interpleader .... 342 
 SHIP, 
 
 Injunction to stay sailing of . . . . 297 
 SI IT A SIT, 
 
 Injunctions formerly granted witii proviso . . 325. n. 
 SMALL POX.— Vide Nimaiice. 
 SMELTING HOUSE.— Vide Nuisance. 
 
 SIMONY . 18 
 
 SINGLE SHEET, 
 
 Copyright in . . . ... 27 1- 
 
 SOLICITOR, 
 
 Restrained from acting .... 312 
 
 SPECIAL INJUNCTIONS, c*v-c. . . . 290 
 
 Sale of Estate restrained . . . 2*/ 1 
 
 Where parol agreement part performed . . ib. 
 
 Refused in a case in Exchequer . . ib. 
 
 Con'Veyaxcf, ok lf.(;ai. Estate . . . ib. 
 
 Restrained by interlocutory order . . . 292 
 
 Purchaser hestraikrd from payixc; i'URCir.\sE 
 
 MONKV ...... ib. 
 
 Upon bill by creditors . . , . ib. 
 
 Against heir ..... ib. 
 
 Against devisee . . . ib. 
 
 NeOOTI A'lMOV OF Hll.r. OF I-lxCUAXliF . ib. 
 
 F F ^J 
 
 \
 
 ■iSC) INDEX OF PTUNrrrAL MATTERS. 
 
 Page 
 SPECIAL INJUNCTIONS, he— {Continued). 
 
 Granted where injunction to stay proceedings at 
 
 law upon it had been refused . . . 292 
 
 Granted on certificate of bill filed and affidavit . 29.S 
 Affidavits not permitted to be read against the 
 answer . . . . . ib. 
 
 Indorsement of Certificate of Registry . ib. 
 
 Transfer of Stock . . . . ib. 
 
 Injunction where a person has confounded liis 
 
 own funds with another's . . . ib, 
 
 Picfuscd as to money at bankers . . . ib. 
 
 Formerly necessary to make the Bank, &c. party 294< 
 
 Act 39 and 40 G. 3. . - . ib. 
 
 Only extends to suits then depending . ib. 
 
 Person making the Bank, &c. a party im- 
 
 necessai'ily, will be made to pay costs . 295 
 Application to restrain Bank, &c. must be on 
 notice . . . . . ib. 
 
 Or affidavit showing the urgency of the 
 case . . . . ib. 
 
 Husband, 
 
 Restrained from assigning wife's equitable pro- 
 perty . . . . . . ib. 
 
 Not her legal . . . . . ib. 
 
 Injunction refused to restrain him from receiving 
 the rents of lands covenanted to be settled to 
 her separate use, where she had eloped . 296 
 
 This decision doubted . . . . ib. 
 
 Restrained from selling the wife's term after a 
 
 divorce a mensct et t/ioro . . . ib. 
 
 This decision doubted . ^ . . ib. 
 
 Ward, 
 
 Marriage with restrained . . . 297 
 
 Intercourse by letter or otherwise . . . ib. 
 
 Guardian restrained from permitting . . ib. 
 
 Father . . . . . . ib. 
 
 Restrained from interfering with^ his child's edu- 
 cation . . . . . ib.
 
 INDEX OF rillNCirAL MATTERS. I-S? 
 
 Page 
 
 SPECIAL INJUNCTIONS, &c.— (Continued) . 
 
 From carrying it abroad . . . 297 
 
 In cases of" immorality . . . ib. 
 
 ill treatment .... ib. 
 
 insolvency . . ■ il'. 
 
 Ship . . . ... ib. 
 
 Sailing of restrained . . . . ib. 
 
 Formerly refused .... 29S 
 
 On application of part owner of an unascertained 
 share . . . . . ib. 
 
 Where refused . . . • . ib, 
 
 DlVIDKND, 
 
 Assignees restrained from making . . ib. 
 
 Removal of Timber .... ib. 
 
 Frequently inserted in the common order . ib. 
 Ecclesiastical Benefice, 
 
 Injunctions to restrain presentation, Sec. . . ib. 
 Where an estate containing advowson has been 
 
 obtained by fraud . ... 299 
 
 Mortgagee restrained from presenting . . ib. 
 Cases in which mortgagee has been compelled to 
 
 nominate mortgagor's clerk . . . ib. 
 Injunction where the mortgage deed contains an 
 express stipulation , . . . ib. n. 
 
 Executor . . . . . . ib. 
 
 Where restrained from getting in assets , . ib. 
 
 Misconduct . . . . ib. 
 
 Insolvency ...... 300 
 
 Bankruptcy . . • . ib. 
 Where feme covert is executrix, and her 
 
 husband is abroad . . . . ib. 
 
 Not where executor merely i» mean circum- 
 stances ... . . il). 
 
 Granted before answer . ... ib. 
 
 Debtors to an Estate . . . il)- 
 Restrained from paying to a pretended executor il). 
 This determination questioned . . . ib. 
 Might be done where - collusion, fraud, or in- 
 solvency in executor .... ib.
 
 438 INDEX OJ- PRINCIPAL AIATTERS. 
 
 Page 
 SPECIAL INJUNCTIONS, &c.— {ConliHucd). 
 
 Injunctions to I'KESEitv/i Propkuty i'ksdknte lite 
 
 IN THE ECCI,E,S1A,STICAI, CoUJ!T . . . 301 
 
 Formerly frequentiy done . . . ib. 
 
 Deterniinatioii that an administrator pendenle lite 
 
 might maintain actions . . . ib. 
 
 Doubts as to the equitable jurisdiction . ib. 302 
 Now established that an injunction and receiver 
 may be granted .... 302 
 
 Motion not granted, except where the suit is ac- 
 tually depending . . . . ib. 
 
 Receivek . . . ... ib. 
 
 In what cases granted of real estates . . ib. 
 
 Where equitable creditor demands execution 303 
 Where purchaser of an estate, subject to an 
 
 equitable rent charge, refuses to pay it ib. 
 
 Upon creditor's bill, -where heir at law an 
 infant . ..... ib. 
 
 Granted before answer in cases of innninent 
 danger . . ... 304- 
 
 ib. 
 ib. 
 ib. 
 
 On consent .... 
 
 — fraud 
 
 Where defendant absconds 
 
 Where it appears on creditor's bill, that 
 
 real estate must be sold . 
 Against tenant in common 
 
 Only in cases of exclusion 
 Against tenant for life withholding title 
 
 deeds . . . 
 
 Against person claiming under a volun 
 
 tary settlement 
 Against mortgagee 
 
 Not granted where he can swear 
 
 that any thing is due to him 
 Granted where he has not kept ac 
 
 counts 
 Not granted where subsequent 
 mortgagee is not before the 
 court .... 
 
 ib. 
 
 ib. 
 
 305 
 
 ib. 
 
 ib. 
 ib. 
 
 ib. 
 
 ib. 
 
 ib.
 
 INDEX OF TRlNCirAL MATTERS. 439 
 
 Page 
 SPECIAL INJUNCTIONS, Scc.—{ConUnuc(l). 
 
 Case where this was done ih. 306 
 
 Receiver where mortgagee not in 
 possession .... 306 
 
 Partner . ...... ih. 
 
 Restrained from intermeddling . , . ib. 
 
 Though a receiver refused . • ih. 
 
 In what cases . . • . . ih. 
 
 Not because there is to be a dissohuion . il). 
 Must be some breach of duty . . ib. 
 
 Interposition only to wind up accounts . 307 
 
 Court refused to interpose in order to carry on 
 
 the concern . . • • • ib. 
 
 Partner restrained from dissolving . . ib. 
 
 Breach of Covekant, 
 
 Injunctions to restrain . . . • 308 
 
 In ringing church liell • • . ib. 
 
 Keeping house of public enterlainnjcnt . .309 
 
 Case in the Exchequer where refused . ib. 
 
 To restrain a person from writing for any 
 other theatre .... ib. 
 
 Refused to restrain publication of reports for 
 another person . . • ib- 
 
 Covenants in Restraint oe Tuaue . .311 
 
 General covenants void . . . ib. 
 
 Particular if on consideration valid . . ib. 
 
 Where no covenant, sale of goodwill would not 
 prevent the vendor from setting up the track- 
 again ...... ib. 
 
 Semble that injunction would be granted to re- 
 strain breach of covenant on sale of goodwill ib. 
 Whether upon sale by bankrupt, (pi. ib. 
 
 Medical Secret ..... 31'2 
 
 Injunction refused to restrain the comnuuiicat ion ot ib. 
 
 Value refused to be set upon it . • • ib. n. 
 
 >^olicitor . . . . . . ib. 
 
 Restrained irom acting for a party in a cause . ib. 
 Case where a nu>tion Id llii- ciltct was refiiseil 
 under the circumstance . • '''■
 
 110 INDEX ()!•' I'lUNC Il'AL MATTEIIS. 
 
 I'age 
 SPECIAL INJUNCTIONS, &ic.— {Contmued). 
 
 Specific Chattel ..... 313 
 Enjoyment of" protected . . . . ib. 
 
 Defendant restrained from selling diamonds . ib. 
 Fraudulent Assumption of an Author's Name 
 
 RESTRAINED . . . , . ib. 
 
 . Or tradesman's mark . . . .314- 
 
 Not wliere there is no fraud or breach of 
 covenant . . . . ib. 
 
 Injunction against using plaintiff's labels ib. 
 '■ plaintiff's descrip- 
 tion and advertisement . . . ib. 
 Not for merely using the same mark . ib. 
 Canal . . . . . .315 
 
 Persons v/hen restrained from digging . . ib. 
 
 Where not . . . , . ib. 
 
 Libel . . # . . . ib. 316 
 
 No injunction to restrain publication of . 316 
 
 Dictum of Lord Ellenborough considered . ib. 
 
 Unconstitutional determination of Lord Maccles- 
 field . . . . . . ib- 
 
 Star Chamber practice .... 317 
 
 Prohibition against publication by Scroggs . ib. 
 
 Observations of Lord Eldon . . . ib. 318. 
 
 Appeals, 
 
 Orders to stay proceedings pending appeal 318 
 
 Practice concerning . . . . ib. 
 
 To which court applications for, to be made 319 
 
 In WUAT MANNER SpECIAL INJUNCTIONS OBTAINED, 
 
 Certificate of bill filed and affidavit . . 320 
 
 In the vacation on petition . . . ib. 
 
 On petition without bill filed . . . ib. 
 
 Not against a person not a party . . ib. 
 Exceptions, 
 
 Against tenant in possession . ib. 321 
 
 Tenant on lunatic's estate . . 321 
 
 Tenants of a manor . . . ib. 
 
 Solicitor . . , . ib. 
 
 Must be specifically prayed - . . ib.
 
 INDEX OV I'llINCIPAL MATTERS. 441 
 
 Page 
 SPECIAL INJUNCTIONS, Sec— (Continued). 
 
 Not where mortgagor after decree is cutting timber 321 
 
 SUBPCENA, 
 
 May issue before bill filed . . , 322 
 
 Must be served . . . ib. 
 Appeauance, 
 
 After appearance notice of motion necessary . ib. 
 
 Where not . . . . . ib. 
 
 Not required where defendant had appeared only 
 
 the ds^y before the motion . . . 323 
 Affidavits, 
 
 Necessary as to title . . . ib. 
 
 Information and belief not sufficient . . ib. 
 
 Title must he particularlj/ stated . . ib. 
 
 As to patent right . . . . ib. 
 
 As to copyright . . ... 324 
 
 As to possession under colour of title . . ib. 
 
 As to facts . . . . . ib. 
 
 As to threats . . . . . ib. 
 
 Service of Subpcena oii Injunction . . ib. 
 
 Where party has had information of the order ib. 
 
 Information from plaintiff's solicitor . . 325 
 
 OUDEU, 
 
 Form of . . . . . . ib. 
 
 Dissolved, 
 
 How injunction dissolved . . . ib. 
 
 In open court .... 326 
 
 Upon special hearing at the Cliancellor's 
 
 house . . .... ib. 
 
 Affidavits, 
 
 When read in contradiction to answer ih. 
 Not in support of title . . ib. 
 As to facts . . . 327 
 When defendant, having obtained 
 time to file affidavits, puts in an- 
 swer instead . . il). 
 Injunction cannot be obtained upon allida\il> liltil 
 after answer ..... il».
 
 442 indj:x or principal matters. 
 
 Page 
 SPECIAL INJUNCTIONS, &c.— {Continued ). 
 
 May be read of acts done subsequent to filing the 
 bill . . . . . . 328 
 
 May be read on part of the defendant in opposi- 
 tion to affidavits of plaintiff" in contradiction to 
 the answer . . . . . ib. 
 
 Proceeding upon motion to dissolve . . 329 
 
 Issue, action, or case . . . ib. 
 
 Certificate . . ... ib. 
 
 Cause must proceed to a hearing, notwith- 
 standing certificate against plaintift"s title ib. 
 Continued, 
 
 In what cases injunction continued to hearing ib. 
 
 Account, 
 
 No objection to injunction that there cannot be 
 
 an account . , . . . ib. 
 
 Cases enumerated where injunction granted, 
 
 though there could be no account . . ib. 330 
 
 Whether court will direct an act to be done 330 
 
 Passage in MS. report and case in Tothill that it 
 
 will . . . . . ib. 
 
 Contrary now decided . . . . ib. 
 
 Motion to pull down blinds refused . ib. 331 
 
 to fill up a ditch . . . ib. 
 
 to repair banks of canal . . . ib. 
 
 This motion may be obtained indirectly . ib. 
 
 SPECIAL INJUNCTION TO STAY PROCEEDINGS 
 
 AT LAW . . . , . .14 
 
 SPECIFIC CHATTEL, 
 
 Enjoyment of protected . . . .313 
 
 SPECIFIC PERFORMANCE, 
 
 Injunctions to restrain ejectments on the ground of 26 
 Vide Covenants, 
 SPIRITUAL COURT— Vide Proceedings in other Courts. 
 STANNARIES, 
 
 Injunction to stay proceedings in . . .111 
 
 STATIONERS' HALL, 
 
 . Entry at . . . . . -272
 
 I 
 
 INDEX OF TRlNCirAL MATTEUS. 443 
 
 Page 
 
 STOCK, 
 
 Transfer of restrained .... '293 
 
 STOCK JOBBING . . . . .18 
 
 STREETS. — Vide Nuisance. 
 
 SUBPCENA ...... 19. 32'J 
 
 SURETIES, 
 
 Relief to . . . . . . 'K) 
 
 TENANT, 
 
 Cannot compel his landlord and stranger to interplead MO 
 
 set up his lease against his landlord . . 350 
 
 Vide Covenant — Interpleader — Proceedings at Laiv — 
 Waste. 
 
 IN COMMON, 
 
 Injunctions between ..... 171 
 
 BY CURTESY, 
 
 Punishable at common law for waste • • 1 1-.' 
 
 Injunction against . . . . . 164? 
 
 AT WILL 196 
 
 BY SUFFERANCE . . . . ib. 
 
 FOR LIFE, 
 
 When first made liable to action of wtiste . . 145 
 
 Restrained in equity from committing waste . . 160 
 
 WITHOUT IMPEACHMENT 175 
 
 FOR YEARS, 
 
 When first made liable to action of waste . . 11-5 
 
 Restrained by injunction . . • .160 
 
 — RENEWABLE FOR EVER, 
 
 When restrained . . • • . 17i 
 
 — IN TAIL, 
 
 Not restrained . . • . .17:5 
 AFTER POSSIBILITY, 
 
 Not restrained . . • .1^3 
 
 When of a remainder . . . • • lo* 
 
 Restrained from eciuitable waste . .185 
 
 Rkstr.mned from alienation . . • 186 
 
 TERMS.— Vide Setlinf; up Terms. 
 
 TniBElJ, 
 
 Property in when bcvered • -1 <
 
 444 INDEX or niiNcii'AL matters. 
 
 Page 
 TIMBE\i—(Co7itmued). 
 
 Directed to be felled . ... .218 
 
 Removal of restrained .... 298 
 
 Vide JVaste. 
 TIME, 
 
 Order for , , . . . . 61 
 
 TITHES, 
 
 Injunctions formerly granted where parties suing on 
 
 statute E. 6. . . . . 139. 158. n. 
 
 Vide Modus — Proceedings in other Courts — Perpetual 
 Injunctions. 
 TRADE, 
 
 Fixtures set up for . . . .152 
 
 Covenants in restraint of . . . .311 
 
 Injunction to restrain setting up the same trade . ib. 
 
 carrying on trade under name 
 
 of another ...... 313 
 
 TRANSFER OF STOCK, 
 
 Injunction to restrain .... 293 
 
 TRANSLATION, 
 
 Copyright in . . . ... 280 
 
 TREES.— Vide Waste. 
 TRIAL, 
 
 Injunction to stay . . . . . 78 
 
 Order for injunction to stay not discharged separately 93 
 Vide Nuisances — Patents. 
 TRUSTS, 
 
 Injunctions to spiritual courts in cases of . .138 
 
 TRUSTEES TO PRESERVE CONTINGENT REMAIN- 
 DERS 
 
 Injunction by ..... 167 
 
 UNDERHAND AGREEMENTS . . .14- 
 USURY 17 
 
 VERDICT, 
 
 Whether inheritance bound on one only . . 354 
 
 Vide Perpetual Injutictions.
 
 I 
 
 p 
 
 INDEX OF PRINCIPAL IMATTERS. 445 
 
 Page 
 
 WARD, 
 
 Intercourse witli restrained .... 297 
 
 Vide Guardian — Special Tiijioictions. 
 WARRENS, 
 
 Waste in ..... . 1 4S 
 
 WASTE, 
 
 Injunctions to stay . . . . . 141' 
 
 Definition of . . . . . . ib. 
 
 Who might commit waste at common law . . 14'5 
 
 In timber . ....... 146 
 
 What trees timber . . . ib. 
 
 What from their situation . . . . ib. 
 
 "S^Hiat destruction .... ib. 
 
 Cutting underwood, where waste . . . ib. 
 
 Where trees excepted out of the demise . ib. 
 
 Estovers, 
 
 What . . . . ib. 1 47 
 
 Where tenant takes more than necessary . 1 17 
 
 Must be specifically applied . . . ib. 14-8 
 
 Ecclesiastical bodies an exception . . HS 
 
 In gardens, parks, &c. . . . ib. 
 
 By alteration of property . . . • 14*) 
 
 Arable . . . . . . ib. 
 
 INIeadow . . . . . . ib. 
 
 Mills . . . . . . ib. 
 
 Houses ...... ib. 
 
 In houses . . . . . . 1,")0 
 
 What ib. 
 
 Permissive waste .... ib. 
 
 From the act of God . . ... ib. 
 
 Statute of 6 Anne .... ib. 
 
 Where covenant to repair . . . l.')l 
 
 Extent of tenant's liability .... ib. 
 
 FlXTUHES, 
 
 Ancient rule concerning . . ib. 
 As between heir and executor . .1 .'>- 
 . executor of particidar tenant and re- 
 
 niaiiidcr man 
 laiullord and tciiaiU 
 
 ib.
 
 44G 
 
 INDEX OF PIITNCIPAL MATTERS. 
 
 Page 
 W ASTE.— (Continued). 
 
 Utensils foii Trade an exception, 
 
 Soap boiler , . . . . l.'jl 
 
 Fire engine for colliery . . . ib. 
 
 Cider mill . , . . . il). 
 
 Varnish house . . . . . ib. 
 
 Not farming utensils . . . . . ib. 
 
 Whether young trees in case of nurseryman . ib. 
 Articles of Ornament, 
 
 Should be removed before expiration of te- 
 nant's term . . . . . 154 
 
 May be removed while still in possession ib. 
 Waste in Mines, 
 
 Wliat . ...... ib. 
 
 Tenant for life under settlement may work, though 
 
 mines not open when the settlement made . ib. 
 
 Where a demise of land with mines . ib. 
 
 Tenant may open new shafts . . . lo5 
 
 dig for estovers . . . . ib. 
 
 Where a reservation by the crown without right 
 
 of entry . . . . . ib. 
 
 Crown cannot grant licence to dig . . ib. 
 
 May restrain the tenant .... ib. 
 
 Copyholder cannot dig without leave of the lord ib. 
 
 Nor lord without consent of tenant . . 156 
 
 Court unwilling to restrain working of mines . ib. 
 
 Grant of mines not to be presvmied from the 
 
 party having worked ..... 157 
 
 Proceedings AT Common Law . . . .158 
 
 Writ of prohibition . . , . ib. 
 
 Taken away by Westminster 2. . . . ib. 
 
 W^"it of summons . . . . ib. 
 
 Single damages . . . . ib. 
 
 Treble damages by statute of Gloucester . 1 59 
 
 Action on the case . , . ib. 
 
 Not for permissive waste , . . ib. 
 
 Writ of estrepement . . . ib. 
 
 Pendente placito . . . ib. 
 
 \
 
 INDEX OF PRlNCirAL MATTERS. 447 
 
 Page 
 WASTE— (CoH/iM«erf). 
 Bill in equity, 
 
 For permissive waste . ... KJO 
 
 Persons for and against whom Injunctfon 
 
 GRANTED ...... il). 
 
 Tenant for life or years .... ib. 
 
 Tenant for life always impeachable unless by ex- 
 press provision . . • . ib. 
 Where devise accompanied with precatory woi'ds ii). 
 Tenant for life no property in the trees . .161 
 Has a special interest in the fruit and shade ib. 
 Cannot cut the trees demised with the pre- 
 mises ..... ib. 
 Case where lands were directed to be sold and 
 
 others purchased . . . . ib. 1(>2 
 
 Injunction granted where an intermediate estate 
 for life . . . . .162 
 
 On application of remainder man 
 Ground landlord against sub-lessee 
 On application of mesne remainder man 
 Qu. Whether remainder man in fee shouU 
 
 be a party 
 Semble not . ... 
 
 Mesne remainder man cannot have an ac 
 count .... 
 
 Tenant for life having sold the timber cannot re 
 
 strain the vendee 
 Tenant by curtesy .... 
 Jointress ..... 
 
 Whether jointress can cut wliere covenant 
 that her estate shall be of a yearly valut 
 and it falls off . 
 Mortgagee in possession . 
 
 Whether he will be restrained if security de 
 fective .... 
 
 Mortgagor in possession . 
 
 Restrained .... 
 
 May cut underwood 
 
 Not at unseasonable times 
 
 ib. 
 
 16;5 
 
 ib. 
 
 ib. 
 164 
 
 ib. 
 
 ib. 
 ib. 
 ib. 
 
 ib. 
 165 
 
 ib. 
 I (if; 
 il). 
 ib. 
 ib.
 
 448 
 
 INDEX OF PRINCIPAL jMATTERS. 
 
 Page 
 WASTE— {Continued). 
 
 Restrained where he became bankrupt . 167 
 
 Trustees to preserve continp;ent remainders . . ib. 
 Power of" . . . - .11). 
 
 May have an injunction . ... ih. 
 
 Persons in similar situation .... ib. 
 
 Lord of manor . ^. . . . 169 
 
 Dormant surrenderee .... ib. 
 
 Trustee with the whole legal fee . . ib. 
 
 Purchaser in possession without having paid purchase- 
 money restrained . , . . • .170 
 Where executory devise . . . . ib. 
 Injunction granted before the contingency ib. 171 
 Infant in ventre sa mere, 
 
 May have an injunction . . . .172 
 
 Coparceners, joint tenants, and tenants in common 171 
 Applications between, discouraged . ib. 172 
 Exceptions . . . . ib. 
 
 Where one insolvent . .173 
 
 Where the waste amounts to destruc- 
 tion . .... ib. 
 Wliere one occupying tenant to the 
 other 
 Tenant in tail . ... 
 
 Not restrained .... 
 Gift on condition not to commit waste, void 
 Guardian of infant tenant in tail not re 
 strained .... 
 Tenant under lease renewable for ever 
 Not restrained in Ireland 
 Probably would be in England 
 Tenant without impeachment 
 
 Had the property in the trees at law ib 
 
 Not restrained in equity 
 Nor his assignee .... 
 Restrained where abusing the privilege 
 Equitable waste 
 
 Progress of the doctrine of equitable waste 
 Destruction ... 
 
 . ib. 
 
 . ib. 
 
 . ib. 
 
 174 
 
 . ib. 
 
 . ib. 
 
 . ib. 
 
 . 175 
 
 . ib. 
 
 ). 176 
 
 . ib. 
 
 . ib. 
 
 1 ^^ 
 
 . 1 / ( 
 . ib. 
 
 ib. 
 
 . 17S 
 
 >:?
 
 INDEX OF PRINCIPAL MATTERS. 449 
 
 Page 
 WASTE-^(Continued). 
 
 Timber of too young a growth . .179 
 
 Trees planted for ornament 180, 181, 182 
 Cannot be cut though planted by the 
 
 tenant himself . . ,183 
 
 Cut where gaps made by a storm . ib. 
 
 Tenant in tail after possibility of issue extinct . 18;J 
 
 Unimpeachable for waste . . . ISl- 
 
 Question upon the right of tenant for life, 
 
 with remainder in tail after possibility of 
 
 issue extinct . . . , ib. 
 
 Unsatisfactory certificate of King's Bench . 185 
 
 Restrained from committing equitable waste ib. 
 
 Tenant in tail restrained from alienation . . 186 
 
 By special act of parliament . . . ib. 
 
 By reversion in the crown . . . ib. 
 
 Question whether he will be restrained from 
 
 committing equitable waste . .187 
 
 Waste by collusion . . . .188 
 
 Wliere tenant for life impeachable, and re- 
 mainder man for life unimpeachable . ib. 
 Where tenant for life and remainder man in 
 
 fee subject to contingent estates . . ib. 
 Where tenant for life has next estate of in- 
 heritance in remainder, but subject to 
 contingent estates . . . il). 
 
 Where a trespasser cuts by permission of 
 tenant ..... ib. 
 
 Case where trustees for the purchase of land of 
 which they wei'e to be tenants for life sans waste, 
 purchased an estate with a disproportionate 
 quantity of timber . . 189,190,191 
 
 Trespass . . . . . .191 
 
 , Formerly injunctions refused in cases of . ib. 192 
 
 When first granted .... 19.'{ 
 
 riamang's case . . .... ib. 
 
 Lord Byron's case . . . . . . ib. 
 
 ."subsequent cases in wliich refused . . 191 
 
 \\ here granted . . . . i!). 
 
 c; G
 
 450 
 
 INDFA' or PRINCIPAL MATTERS. 
 
 Page 
 
 WASTE— {Continued). 
 
 Against person cutting by collusion with 
 tenant . . . . .194. 
 
 Lord of" manor digging on copyhold premises 
 
 ib. 195 
 
 Purchaser not having paid purchase-money 195 
 
 Persons taking valuable stones on a manor . ib. 
 
 Not granted where plaintiff's title denied by the 
 
 answer , . . . . ib. 196 
 
 Injunctions against tenant at will and sufferance . ib. 
 Copyholder ..... 196 
 
 Determination in Dench v. Bampton tliat lord 
 
 could not restrain copyholder . . . 197 
 
 Overruled . . . . . . ib. 
 
 Breach of Covenants 
 
 Restrained . . . . .198 
 
 Covenants to keep banks in repair . . ib. 
 Not to remove dung • . . . ib. 
 Not to plough meadow . . . ib. 
 
 Not to dig for sand, &c. . • ib. 
 
 Not to convert a house into one of an- 
 other nature . . .199 
 Determinations at law as to cultivation in a hus- 
 bandlike manner, &c. .... 
 
 Violation of the custom of the country 
 Bound to preserve it without express covenant 
 Tenant from year to year violating it re- 
 strained in equity . ... 
 
 From ploughing pasture 
 
 Sowing deleterious crops 
 Distinction between express and implied cove- 
 nants ...... 
 
 Where tenant holding over 
 Restrained from pulling down, notwithstanding 
 
 general covenant to repair . . . ib. 
 
 Licence to carry on one trade does not include 
 others . . . . . . 201 
 
 Ecclesiastical persons .... . ib. 
 
 Common law remedies against . . . ib. 
 
 ib. 
 
 i 
 
 ib. 
 
 1 
 
 ib. 
 
 1 
 
 200 
 
 
 ib. 
 
 4 
 m 
 
 ib. 
 
 **< 
 ■1' 
 
 ib. 
 
 
 ib. 

 
 INDEX OF PRIXCIPAL MATTERS. 4)1 
 
 Page 
 W ASTE— ( Continued). 
 
 Early opinion that no wiil ol" piohibiliun against 'JOl 
 Writ discovered by Lord Coke 
 Prohibition issued by Lord Ellesn\(jre 
 Present doctrine . . • • 
 
 What acts amount to waste in ecclesiastical \)l\ 
 sons .... 
 
 Parson cannot cut down timber . 
 Nor open mines .... 
 Nor can a bishop 
 Parson may work mines already open, may 
 
 cut timber for repairs, &c. 
 Estovers .... 
 
 Need not be specifically applied by cc 
 clesiastical corporations . 
 Injunction against 
 
 By patron against rector 
 By attorney general against bishop 
 Deans and chapters . 
 Not by uninterested persons 
 Granted by Lord Thurlow against the 
 widow of a deceased rector 
 Bill for should not pray an account 
 Injunction by bi.^hops against their tenants holil- 
 ing under leases without impeachment bciore 
 the disabling statutes .... 
 Account of Waste ..... 
 Origin of the jurisdiction 
 Always granted where consequential to the in 
 
 junction .... 
 Where no injunction prayed 
 
 Granted if profits of mines, iSrc. 
 Whether of timber cut ? . . . 
 
 Lord Hardwicke's opinion in .Ic>us ('ul- 
 lage t'. Bloom, that it couM not . il). 
 Lord Eldon's opinion . . L'OS 
 Contra in WhitfieUl x'. lu-wil il>. 
 (Jarlh r. Cutloii . . 2()D 
 
 ib. 
 
 ib. 
 
 202 
 
 ib. 
 ib. 
 ib. 
 ib. 
 
 ib. 
 
 ib. 
 
 20;5 
 
 ib. 
 
 ib. 
 
 ib. 
 
 201. 
 
 ib. 
 
 ib. 
 205 
 
 ib. 
 
 206 
 
 ib. 
 
 207 
 ib. 
 ib. 
 il).
 
 •♦-.-^ 
 
 45!2 INDEX OF PRINCIPAL METIERS. 
 
 t Page 
 
 WASTE— {Continued}. 
 
 ^ True distinctiuu, seems that it shpuld be 
 
 granted wherever no remedy at law . 210 
 Lord Thurlow's opinion that it mi^ht be 
 granted in every case where timber 
 wrongfully cut . • . ib. 21 1 
 
 Account against assets . . . .211 
 
 Lord Cowper's opinion that it might be 
 
 granted seems wrong . , . .212 
 No remedy in equity against assets for legal 
 
 waste, action at law in respect of . . ib. 
 
 Account in equity for equitable w^ste . 213 
 
 Mode of taking account in equity • .214 
 
 Property in timber severed . . . ib. 
 
 In first vested estate of inheritance , . ib. 
 
 Not where precluded by his own acts . ib. 215 
 
 Rule applies though the whole fee is vested 
 
 in trustees . . . .216 
 
 Timber directed to be felled .... 218 
 
 Application of the money produced by it . ib. 
 Purchase of lands . . . ib. 
 
 Defraying expenses of inclosure . ib. 
 
 Left in money . . . .219 
 
 In what cases directed . . . . , ib. 
 
 Infants ..... . . ib. 
 
 Lunatics . . , . . ib. 
 
 Declaration as to the nature of the property 
 
 in case of conversion . . . ib. 
 
 Where declaration omitted . . . ib. 
 
 Extent of the rule as to there being no equity 
 
 between the representatives . . . ib. 
 Distinction between the doctrine as applica- 
 ble to the estates of infants and lunatics 
 
 220, 221 
 WHARFS — Vide Furpresturc — Nuisance. 
 WIERS — Vide Purprcsture — Nuisance. 
 WOAD, 
 
 Injunction to restrain sowing .... 200 
 
 WINDOWS — ^'idc Purprcsture — Nuisance.
 
 INDEX qp 
 
 PRINCIPAL MATTERS. 
 
 453 
 
 WOOD— Vide Wast*. 
 
 
 Page 
 
 WRIT 
 
 
 
 Of estrepement 
 Of injunction 
 
 1 
 
 . 159 
 . 290 
 
 Remedial 
 
 
 1 
 
 Judicial 
 
 . 
 
 . 363 
 
 Of prohibition 
 
 . 
 
 . 4 
 
 Of prohibition of v, 
 
 aste 
 
 . 158 
 
 Of summons 
 
 . 
 
 . ib. 
 
 THE END.
 
 LONDON ! 
 
 IfMNTElt BY THOMAS DAVISQN, WHITEFRURS. 
 
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