Wr*:*"- ,N ^^ •yjjx,; 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. \ i'fifi AA 000 770 632 8