i 

 
 r\I\TRsITY 
 
 0\ C Al II ORMA 
 
 LOS ANGHLES 
 
 SniOOI. OF I AW 
 LIBRARY
 
 THE 
 
 LAW AND PRACTICE 
 
 INJUNCTIONS: 
 
 5)upplcmcnt 
 
 CONTAINING 
 
 THE CASES DECIDED SINCE 1841. 
 
 BY 
 
 CHARLES STEWART DREWRY, ESQ. 
 
 BARRISTER AT t.AW. 
 
 LONDON : 
 S. SWEET, 1, CHANCERY LANE, FLEET STREET, 
 
 HatD ISoofteeller anil l|ublt6$er ; 
 
 HODGES AND SMITH, GRAFTON STREET, DUBLIN. 
 
 1849. 
 
 X
 
 r 
 
 c.\i 
 
 S49 
 
 I. o X n o N : 
 
 miMTKD BT r. KOWORTH AXD tOMt, 
 • KtL TAKD, TBMPl.r BAR.
 
 «? 
 
 ^ PREFACE TO THE SUPPLEMENT. 
 
 Since the publication of the original Treatise in 
 1841 a considerable number of cases has been 
 decided, — the principles on which equity proceeds 
 in the exercise of its prohibitory jurisdiction have 
 been more fully explained, — and the practice has 
 been consolidated and reduced to a more definite 
 and positive system. Under these circumstances 
 it has been thought that it would be useful to 
 collect the new cases, referring them to the several 
 heads of jurisdiction under which they properly 
 fall. In the addition now made to the original 
 work, the writer has endeavoured to explain the 
 present state of the law and practice, and he be- 
 lieves that he has not omitted any material infor- 
 mation. 
 
 A new, and, it is hoped, sufficiently extensive 
 Index, to the original as well as to the new 
 matter, has been added. The division of chapters 
 and classification of subjects, which were resorted 
 to in the original Treatise, have also been adopted 
 
 -io*\nQL
 
 iv PRRFAt'K Tt) Tin: l*ri'Pl.KIIP.I«T. 
 
 ill tin- Sii|»pl«iin-iil, ii.H ii lm.H In-i-ii tlmii^lit that, 
 wliitlur tin- urninp'iiH-iit in llic U'st tluil rouhl l>e 
 UMuU- or in»t. tin* oonvniirnct* of thf n*acler wouM 
 U' lH•^t niiisiilti-<l l»v mloptiii^ uiiifuriiiity <»f ar- 
 rnnjjriiu'ijt. 
 
 A'nr S^uarr, lAncolnM Inn, 
 hUister Term, 1849.
 
 PREFACE 
 
 TO THE ORIGINAL TREATISE. 
 
 It is scarcely necessary to offer any apology for 
 the publication of a new work on a subject which 
 has only been treated by one learned writer, and 
 that more than twenty years ago. The great exten- 
 sion, during the intervening period, of the subjects 
 to which the relief by injunction is applicable, and 
 the consequent addition to the collection of cases, 
 illustrating the law on this head of equity, have 
 appeared to the writer to make it probable that an 
 Essay on the Law and Practice of Injunctions would 
 now be acceptable to the profession. 
 
 The present work is confined strictly to an 
 exposition of the law and practice. 
 
 The writer has not thought it advisable to in- 
 clude the usual accompaniment to practical works, 
 viz. precedents of pleadings, forms of orders, and 
 other similar matter; firstly, because such prece- 
 dents and forms are already to be found in other 
 works, particularly in the books of Practice, which 
 are almost necessarily in the hands of every Chan- 
 cery practitioner {a) ; and secondly, because, the 
 
 (a) For forms of orders, see practice ; and for precedents of 
 Seton on Decrees, and the books of bills, see 1 Equity Draftsman.
 
 cirriiiiiHlanrfM wliirli ^fivr rim? to injuiictiuii Kuit* 
 uTi' of MivU rmlli-HH varirty. a» to n*n«i«'r prfct-ilfiit* 
 «)!' Iiilln uiid <»lh«T plcadiii^H iirarly um-Iii***. 
 
 Tin* inw Onl.rs of Aiipi>»l, 1^11, wm* not 
 issinil till aflrr tlir wholr of llir work wilh |)rint<*d. 
 ll il'MH nut a|i|M*jir, howevrr. that tliow onlcw 
 havf aiiv <linft and h|M'cial Ix^arinj; on tlir jmictice 
 ill inatt«-p< of injunction. 
 
 thancny l.unt, 
 Oct. 1841.
 
 INTRODUCTION. 
 
 An Injunction may be described as a prohibitory writ, 
 issuing out of Chancery to restrain the defendant from 
 usino; some leaal rioht, the exercise of which would be 
 contrary to equity and good conscience ; or from doing 
 some act inconsistent with the admitted or probable legal 
 rights of the complainant, and with the due preservation 
 of the property affected by the act sought to be restrained. 
 
 In practice, injunctions are of two kinds. An injunction 
 of the first kind is grantable as an order of course, without 
 reference to merits, upon the defendant's making default 
 in appearing, or in pleading, answering, or demurring 
 within the time prescribed by the practice of the Court (a). 
 An injunction of the second kind is, on the contrary, 
 always granted upon merits, and may, under circumstances, 
 be granted at any stage of a suit, after the bill is on the 
 file, without reference to whether the defendant has or has 
 not made default. 
 
 An injunction of the first kind is properly called a 
 common injunction, and is that which is most generally 
 obtained in suits where the object of the mjunction is to 
 stay proceedings at law (Jb). 
 
 (o) 1 Newl. Pract. 324; 1 Smith's tion is sometimes distinguished as that 
 
 Pract. 601 ; and 10th Order, 1833; which is granted to stay proceedings 
 
 see also 2 Story's Eq. Jurisp. 177. at law. That is not, however, the 
 
 (6) To this cu-cumstance, probably, true distinctive character of the corn- 
 it is owing that the common injunc- men injunction. For though the
 
 VIII 
 
 INTMtllll'CriOX. 
 
 All iiijuDctioii of the MH:oml kind in cullr<l a ^iMfiul 
 injuiii'tiiMi, UfuuM- it in i^ruiitcd u|Kin tjur-utl nppliruiion, 
 unci not UN uii onlrr of cminM»(r), 
 
 III |>nirtiic the K|M>riul injunction inny Im' cimHi(ii-r(*<l tt« 
 KulxliviHililr into two kinilM, tlir fintt of uliich in uniiitabli* 
 in certain ur^int cuja*** Ix-forr H|i|K'aninrr, and rvm with- 
 out notior to the defendant, u|Hjn the ineritit nhown hy t}ie 
 rj- jyirtr Htateiiieiit of the phiintiH ('/) ; and injunctions of 
 this kind arc called fj- jmrtr injiinctinnH. 
 
 Tin* second kind ni HjM-cial injiinction is «»nlv trninled 
 u|M)n the nieritH nliown on Iwth nideK. 
 
 The ex pitrte injunction ih frefjuently applietl in rawH 
 of waste, infrin<^«'incnt of [>atent,s and of cdpvriudit, and 
 similar acts of injury to jirojx-rtv, where delay niiyht prf>- 
 (liu-c inrpanthlr ittjunj ; ami is not, except in a few rare 
 cased of exception, applied to restrain proccedinf^s at 
 law (r). But all injunctions which are j^nintetl after an- 
 swer, whether to restniiii wrf)n^ful acts of a sjM'cial nature, 
 or to restrain proceedings at law or in other Courts, are 
 made «»n notice, and on the sj)ecial merits of the case, and 
 fall therefore pro|><rly within the second class of special 
 injunctions (/). 
 
 common iDJunclion U never applied 
 to stay wa«tc and similar injunc* to 
 property ; the upccial injunction is 
 freqacDtly applied to wtay pn>ccc<tings 
 at law. I'hc true distinction botMrccn 
 the rommioi and the tptfriu/ mjunrium 
 », that the former is obtained when 
 the defendant has made default, as a 
 common order, or ordtr of courtt, to 
 which no opposition can be offered ; 
 whereat the latter i* alwiy* obtained 
 on mcnis, and never as an order of 
 coun«. 
 
 (r) I Newl. Pnci. 336. 
 
 (d) 1 Xewl. I'racl 335. 336. 
 
 (O 18 Ves. 522 ; 2 Mer. 476; aad 
 sec l^nt t.U'illuimt, 6 Ves. 798 ; tM 
 al*o per I»rd Coltenham in Thorp4 
 V. Hughes, 3 .My. U C. 7.W. 
 
 { f ) The term tptc\al injuneiion has 
 been confined by a learned writer to 
 that which is ^anied before answer 
 on the complajnaol's appltcatioo, sup- 
 ported by an a/Mavit of menu ; and 
 he speaks of the injunrlion ' ' . ' 
 after answer upon notice of 
 the ort/iiMry injunction.* Ar,r.;hicr 
 learned writer on practjc« has treated 
 
 • lube's Tr«al. of Kq. V\tad. 68. 72.
 
 INTRODUCTION. IX 
 
 I propose to consider the subject of Injunctions under 
 three general divisions. 
 
 The first will comprise the discussion of the cases in 
 which Equity will interfere by injunction to restrain a 
 person from instituting or continuing judicial proceedings 
 either in a Court of Equity, or in a Court of Law, or in 
 some other Court neither of Law or Equity. 
 
 In the second will be considered the cases in which 
 Equity interferes to restrain the commission of wrongful 
 acts of a special nature, or acts inconsistent with the 
 probable legal right of the complainant, and the due pre- 
 servation of the property affected by the act sought to be 
 restrained. 
 
 The third will be devoted to the consideration of the 
 practice in obtaining, continuing, and dissolving injunc- 
 tions. 
 
 As regards Injunctions for staying proceedings in Courts 
 of Common Law and in other Courts, it may be stated as 
 a general rule, illustrated by an abundance of case, that 
 wherever a party by fraud, accident, or otherwise, has an 
 advantage by proceeding in a Court of ordinary jurisdiction, 
 which must necessarily make that Court an instrument of 
 injustice, a Court of Equity, to prevent a manifest wrong, 
 will interpose by restraining the party whose conscience is 
 thus bound from using the advantage he has improperly 
 
 every injunction made upon special Story in his excellent work on Equity 
 
 app/ic«t!on (as distinguished from the Jurisprudence, vol.ii. p. 177. And 
 
 injunction obtained of course on the 1 have adopted it in this work, not 
 
 defendant's making default), as a spe- only as the most accurate, but be- 
 
 cial injunction, whether made before cause it is the most consistent with 
 
 or after answer.* This is also the the ordinary acceptation of the terms 
 
 classification adopted by Mr. Justice used by the profession. 
 
 * Newl. Pracl. 335.
 
 X INTIiUUVCTtUM. 
 
 Mr. Mudilitcko, III hui TrmUMc on (.'hiuiccry 
 
 r,...iM. ./.), tilutrn 111. I ..■■■ > n. .»... ... ...... ..t 
 
 thr ciuM** «>f orciilmt, 
 
 r<|uitablr rvliff in allurtir*!, a parly prucrctliit^ at Ium uiII 
 
 \m' H'Mtruiiutl. '• In nlidrt," imivh Uinl IttinutI uritrr, " il 
 
 HtfUii* tiiut wlirrrvrr rvUvf would In- ((ivrn in » ^ "••■"• "f 
 
 I'l4|iiity iiKiiiiiMt a li>^il ri^ht, un injuncUon nili ! 
 
 to rttilniin prooMtlin^n at law in respect of fuch lcf;ai 
 
 riylit." 
 
 An rxuininution of the caoc* will i>how tliiii propcwilion 
 to be, OM a (^t'licrai one, Hutlicicntly correct ; but the impiiry, 
 which iit thf s|)<mmu1 Hubject of tlie followiii)^ Hhects, in not 
 so iiiuoh into the casj-s in which a conchinion can ' '1 
 
 at that t;cn<-nil and final rohcf in <^runtahlc, and f 
 fore an in|tinctiun mi^ht be ubtaine<i, an into thoitc, in which 
 the ca.>u> not iM-ini; rij>c fur final adjudication, itt yet of such 
 u nature and in !4uch n sla;^e a.s to juhtifv the preliminary 
 interference of equity by injunction. Th«-*k", w» far aj* 
 rej^anls injunclion« to rcstniin a party from instituting or 
 pursuing judicial proccodini:?*, I pro(iose to examine under 
 tlic followini: uencml sulKlivi.^ion}^. 
 
 I. Where the lepil title of the defendant in equity is 
 fountlrd ori<^nalIv on j^onie inefjuitai»le transaction, or is 
 ai^iiinst public policy ; or where not having been originally 
 inequitable, it has been tainted with fraud, actual or con- 
 stnictive, by the 8u))i>equcnt conduct of the party claiming 
 under it. 
 
 II. Where the plaintiff in equity has f»ome equitable 
 right to sot up against the plaintiff in the other Court, 
 of which that Court cannot either by rea.4on of want of 
 juri.'idiction, or by rea.«ion of its forms of [»roceeflinL% take 
 
 ig) Urd Kctl. 127. (lb) Vol. i. 107.
 
 INTRODUCTION. XI 
 
 cognizance ; or where the legal right of the plaintiff at law 
 is coupled with and abridged by some equitable liability. 
 
 III. Where relief is sought against forfeiture or penalties 
 incurred by the breach of covenants, or the neglect of other 
 legal liabilities. 
 
 IV. Cases illustrating the principles and limits of the 
 jurisdiction of equity to grant relief by way of injunction. 
 
 In discussing injunctions to restrain acts of a special 
 nature, wrongful, or inconsistent with the preservation of 
 the property in dispute, the subjects of consideration have 
 been found to range themselves most conveniently under 
 certain familiar heads of equitable jurisdiction, such as 
 waste, copyright, (fee. I have not therefore attempted in 
 that part of the present work to classify the different cases 
 to which the relief by injunction is applicable, otherwise 
 than by reference to those established heads of equity ; and 
 injunctions to stay wrongful acts of a special nature will 
 be considered under the following heads : — 
 
 Injunctions for restraining waste, and infringement of 
 copyright, and of patent rights ; to restrain the publication 
 of secret inventions ; the use of trade marks and designa- 
 tions ; and nuisance ; injunctions acting in aid of specific 
 performance, by restraining the breach of agreements ; and 
 to restrain breach of actual or implied trust; injunctions in 
 matters of partnership and bankruptcy, and in matters 
 arising out of the relations between public companies and 
 individuals ; injunctions to assist the trial of legal rights by 
 removing mere legal impediments; and injunctions in inter- 
 pleader suits ; and, lastly, certain cases of injunction, illus- 
 trating generally the nature and extent of the jurisdiction 
 of equity. 
 
 In the Third Part I shall discuss the practice of the
 
 xii t»fTRonrcTio?<. 
 
 Court of Chancrry with rrfcmicr, I. To Uir iimhIo of ob- 
 taining; U'iU thf roinnitin luul the HiJCfiui injunction ; 
 II. To till" rxtt-nnion «»f ihr roniiiKin injunction to Htxiy 
 triul ; III To tijc viWl on an injunction of ammding thr 
 bill; \y. To wimt c.uwtitutm lirnirh «.f tin injunction anti 
 what arr the conH<f|urnccii of nuch hrtAch; and NT" ''•<• 
 nHKJi' of diKHolvini; injunctionn. 
 
 Muny i>ointit of pnicticr will aluo be founil dii»cujM»wl in 
 otluT partM fif lh«' work, whrrc thry luivc incidrntally uriM-n 
 in the ciiM-^ njorc innnctliatcly un<l«r diwutwion. TIh-m- it 
 hn.H not Im-ch thouijht ntM-cHwin' to rf|K*at in th«* jmrt |)ar- 
 ticulurlv appropriiitod to the diRcu!i»ion of the Practice.
 
 CONTENTS. 
 
 PART I. 
 
 OF STAYING PROCEEDINGS AT LAW AND IN OTHER 
 COURTS. 
 
 CHAPTER I. 
 
 Of Injunctions to stay Proceedings at Law where the Legal Title of the 
 Defendant in Equity is founded originally on some inequitable Transac- 
 tion ; or is against Fublic Policy ; or where, although the Legal Title 
 of the Defendant in Equity may not have been originally inequitable, 
 it has been tainted xvith Fraud, actual or constructive, by the subsequent 
 Conduct of the Party claiming under it . j Pages in Treat. 1 — 47 
 
 ( SuD. 1 — 6 
 
 1 Proceedings on Bonds or other 
 
 Instruments obtained by Fraud 
 Page 2 
 
 2 Gambling Transactions . . 4 
 
 3 Restraining Proceedings on Instru- 
 
 ments affected with constructive 
 Fraud . . • . • . 6 
 
 4 Jurisdiction to restrain Proceed- 
 
 ings at Law on Instruments void 
 at Law ; and Distinction between 
 Illegality apparent on the Face 
 of an Instrument, and Illegality 
 appearing by Evidence dehors the 
 Instrument . . • . 8 
 
 5 Gray y. Matthias; Simpson \. Lord 
 
 Howden ; and Jones v. Lane . 10 
 
 6 Not necessary to show Certainty 
 
 of the inequitable Foundation of 
 an Instrument .. .. 12 
 
 7 Restraining Proceedings on Instru- 
 
 ments founded on Expectations 
 from third Parties, and concealed 
 from them .. .. 13 
 
 8 Exception to this Rule . . 14 
 
 9 Restraining Proceedings on Instru- 
 
 ments given by Persons having 
 only Expectations .. 15 
 
 10 Restrictive Qualification of this 
 
 Rule .. .. ..16 
 
 1 1 Restraining Proceedings on Instru- 
 
 ments obtained under undue In- 
 fluenced, an Intoxication . . 18 
 
 12 Frauds on Compositions with Cre- 
 
 ditors .. .. Page 21 
 
 13 Marriage Brocage Bonds, and 
 
 other Instruments against the 
 
 Policy of the Law . . 22 
 
 I. Where Equity interferes, 22 
 
 II. Where Equity will leave the 
 
 Parties to their Rights at 
 
 Law . . . . 25 
 
 14 General Conclusion drawn from 
 
 the Cases on this Head . . 30 
 
 15 Contracts and Instruments in 
 
 Fraud of the Usury Laws .. 31 
 
 16 Effect of Fraud on the Party from 
 
 whom an Instrument passes . . 33 
 
 17 Of restraining Proceedings on Po- 
 
 licies of Insurance . . 34 
 
 18 When Persons, by fraudulent Ac- 
 
 quiescence in permitting others 
 to deal with their Rights as their 
 own, lose their Equity . . 35 
 
 1 9 General Principle of such Cases 38 
 
 20 Of the Effect, on the Liability 
 
 of Sureties, of giving Time or 
 other Advantage to the principal 
 Debtor ; and of the Effect on 
 the Creditor of the Conduct of 
 the Surety . . . • 38 
 
 21 The Doctrine of restraining a 
 
 Party from using his Legal 
 Rights, as against his Partner in 
 a Fraud on third Parties . . 43
 
 XIV 
 
 COWTKKT*. 
 
 ^■fflrwriil 
 
 I J 
 
 1 ( 7 
 
 3 \ of Kqiuly 
 
 ty uf the lM4f«> 
 
 lS« K»rc o/ II , 
 
 \ Aii'liijr can b« innt 
 
 \*m 7 
 
 4 ( > •' - — '••'i^ oo !•• 
 
 •. .,D . .^ 3 
 
 & KrauU* oo Cotti|M>M(M><M wMb Cr»> 
 
 tliioit 3 
 
 6 W hen Fx)uilj irili, aod «bt« it wiU 
 
 • < 
 
 
 .u- 
 
 a a.a \Li 
 
 ami 
 
 
 8 At l<> ' 
 
 
 prr. 
 
 
 H» 
 
 -■■ 
 
 rut' 
 
 
 •» Of ll. 
 
 ■V 
 
 Hur< 
 
 
 A<1. 
 
 ( II AITKK II. 
 
 (>/■ ImuncUont to Uay Procetdingi at Jmic where the Plaintiff tn Kqmily 
 
 I 1: ■ f.i Kt up ogantU the Vlainlfff" at Imv, of 
 
 ( / ,not, (ithrr by reatom of' IlViif "'" hirudie- 
 
 Hon, or by rrautn of m Formt of Vroetedtng, take < . or 
 
 where the I^gal Rtght of' the Vlatnttff at Imw u ( , and 
 
 abruigeti by, lome Kquttable lAahiiUy. . . S I'agvs in Trral. \%—T5 
 
 1 InjanrlioD* to Mar ProcMtJinM al 
 I -iw in Aid of •peci6c Pcrrorm- 
 
 ilHT 48 
 
 1 \Mi»( ngcmary to f attain an In- 
 junction in Aid of »pecific I'cr- 
 forTT>»ir«« 5) 
 
 " ■ riCTple of the ('a»oi on 
 
 3 ( 
 
 4 I 
 
 ;>artuTe from the Time 
 - the PcrfonnaDctj of a 
 
 63 
 
 : Ca*e* of «pccific I'cr- 
 where »h«> ^1»•ST^ine 
 .V. ! Kri. rt of A- 
 F*owcr» of ttr 
 
 •urtiii^ I' 
 
 I 
 Injui. 
 
 but ran- 
 
 th* Form* of Proc**ding 
 
 I'V l{<-aio-, o! 
 6,1 
 
 > 
 
 18 
 
 10 Dwt 
 
 Icci 
 
 to coin p! J MiUi Ut« fMw|A;r lofia 
 6* 
 
 n 
 
 I. Lh«< 
 
 PHr 
 
 II 
 for 
 
 
 - ( u«eii«ol 
 
 
 "• fA 
 
 
 ^ 
 
 bia Wilc't Lei:iry 
 
 12 In- 
 
 \rr\ i;r,i'.. r an Art of 
 
 X .. .. 71 
 
 ,'..r» fof intrrfcrc in 
 
 ' rclv on the 
 
 . 72 
 
 U \\i,' T.n of the 
 
 P»- *.vcprfain«d 
 
 ; hralM Arroflnt .. 74
 
 CONTENTS. 
 
 XV 
 
 S-uppIfwcnt. 
 
 1 Injunctions in Cases of Mistake 
 
 Page 7 
 
 2 Injunctions where the Defendant at 
 
 Law has good IMatter of Defence, 
 but cannot use il by reason of the 
 Forms of Proceeding ; or where 
 Proceedings in Equity, in which 
 
 Justice can be done, have been 
 instituted . . . . Page 8 
 
 Of the Right of a Mortgagee to 
 proceed on his several Remedies 
 at once .. .. ..10 
 
 Where the final Claims of the 
 Parties can only be ascertained 
 by a complicated Account ..10 
 
 CHAPTER III. 
 
 Where Relief' is sought against Forfeiture or Penalties incurred by the 
 Breach oj Covenants or the Neglect of other legal Liabilities. 
 
 Treat, page 76—94; Sup, 13 
 
 1 General Principle of the Jurisdic- 
 
 tion, and in Particular as to Re- 
 lief against Penalties in Bonds, 
 &c. 76 
 
 2 Distinction between a Penalty as 
 
 such, and as stipulated Damages 
 78 
 
 3 Discussion of the Cases where the 
 
 Breach of Condition is wilful ; or 
 where not susceptible of Com- 
 pensation in Damages certain. 
 And herein of Sanders v. Pope, 
 and Davis v. West . . . . 80 
 
 4 General Result of all the Cases; 
 
 that there is generally no Relief 
 against Breach of any Covenant 
 in a Lease, except of Covenant 
 to pay Rent . . . . 88 
 
 5 Cases of Exception to this Rule 
 
 90 
 
 6 What is, and what is not, W'aiver 
 
 of his Right by the Party enti- 
 tled to the Benefit of a Covenant 
 91 
 
 7 As to Ship Registry Acts . . 93 
 
 I. No Relief where Neglect to 
 
 comply with the strict 
 Terms of the Ship Regis- 
 try Acts . . . . 93 
 
 II. But Relief may be granted 
 
 as between two Parties, 
 one of whom has the 
 better Equity, to prevent 
 the other from completing 
 his legal Title . . 93 
 
 Supplement. 
 
 Where Relief is sought against Forfeiture or Penalties incurred by the 
 Breach of Covenants or the Neglect of' other legal Liabilities . . 13 
 
 CHAPTER IV. 
 
 Of the Jurisdiction iji general . . 
 
 1 Courts of Equity act on the Person 
 
 proceeding, and not on the Court 
 in which he is proceeding . . 96 
 
 2 Jurisdiction to stay Proceedings in 
 
 the Admiralty Courts ; in the 
 Courts of Scotland and Ireland ; 
 and generally in any foreign 
 Court .. .. 97 
 
 Treat, page 95—133 ; Sup. 14—20 
 
 3 Jurisdiction to stay Proceedings 
 
 in other Courts of Equity ,. 103 
 
 4 And in the same Court .. 105 
 
 5 Distinction where the concurrent 
 
 Suits are not precisely for the 
 same Matter . . 105 
 
 6 Cases where Equity will restrain 
 
 Proceedings in other Courts, on 
 b
 
 ••OKTlliTn. 
 
 iU 
 7 8«*> 
 
 1 .': 
 
 u I* I«Ihv« Iftio-' k-> 
 
 l-ii A»»ni .. .. 'M 
 
 II. D]r wImm iIm ftlcHioa mir 10 JumAefon lo mlma • i ^ -^ 
 
 ba mtde ''■ ' > i • ■ 
 
 III. I>itrui«Kin u( tl ' . I . '. 
 
 wbrlKrr \'r ... 
 
 I'. 11'. 
 
 IT. yjft. , ( 
 
 Ihc N-ilurc o( ll.e >u.i i^, i 
 
 >>)Ultv .. .. IIJ 
 
 r. Diilir. • ' ' ' : 
 
 » ( 
 
 ■ od wbcrr it i* a* i- 'ii i>i ' 
 
 intatorit tl « iMM lU yr. ■ in 
 
 priu ..113 M Wh' 
 
 ri. DttcuMtoo of Mr. Willumt' tor 
 
 i^tipplrmrnt 
 
 1 Juri«*lirlion lo »Uv I ,j Prt>oc«ii»g« id fre- 
 
 gencrmllj la aoy Vof . ' u 16 
 
 14 I I. Ocoenllj 16 
 
 1 On f«iHi«r,inmp PrrvMH^in-* in i>m» ii. A* lo thi Costa which Um 
 
 krtdiior will b« coiiilcd 
 
 lo 17 
 
 ., , ,„ %. .„... i...^„.i ., .. ,, 
 
 6 Oo ft ! 
 
 wiiiuo lU owa Jutwdjclioo . . 1^ the Oiiiccrs o^ liic (.^ourt .. 20 
 
 r A RT II. 
 
 cF INTINCTIONS TO STAY WHO.NGFII. ACT- '-' f SPFCIAL 
 
 NATrRK. 
 
 rHAPTKH I. 
 
 Injunctions against Waste . Treat, page 131 — 190; Sup. 21 — 31 
 
 1 Waste by Tenant for Life gene- 3 Whtt Af-'.j Tmant for Life not 
 
 rally..' .. .. 136 uov rr,«y do .. 136 
 
 2 At whoM Suit an lojunclioo 4 .Mor^ . the Parties who 
 
 agmuM Waste may be obtained. may oiUu. ir.^unctiona .. 137 
 
 136 I .0 Where it w uooertain till Death of
 
 CONTENTS. 
 
 XVU 
 
 Tenant in Possession whether he 
 has Title to the Timber, Page 139 
 
 6 Of the relative Rights of 'i'enant 
 
 for Life and Remaiuder-man, 140 
 
 7 Injunctions against equitable Waste 
 
 by Tenant without impeachment, 
 142 
 
 8 Destruction will be restrained, 143 
 
 9 But not trifling Acts of Waste, l43 
 
 10 Doctrine as to restraining the cut- 
 
 ting down of ornamental Timber, 
 144 
 
 11 Old Rule to stay cutting Timber 
 
 actually ornamental .. 144 
 
 12 Modern Rule that it must be 
 
 planted or Growing for Orna- 
 ment .. .. 144 
 
 13 Principle which governs the Court 
 
 on this Point .. 145 
 
 14 Doubtful whether an Injunction 
 
 can be granted against Waste 
 generally, on Proof of Particular 
 Acts of Waste .. 147 
 
 15 Injunction never granted on 
 
 ground of its doing no Harm to 
 Defendant .. .. 147 
 
 16 Distinction between Tenant for 
 
 Life and Tenant in Fee, as to 
 cultivating in a Husband-like 
 Manner .. .. 147 
 
 17 What sufficient to support an In- 
 
 junction .. .. 148 
 
 18 Tenant for Life, without Impeach- 
 
 ment, not to be restrained, unless 
 
 Trees are unfit to be cut as Timber, 
 
 149 
 
 19 Waste by Jointress .. 149 
 
 20 Waste by Tenant in Tail, under 
 
 Act of Parliament, deprived of 
 Power of Alienation .. 150 
 
 21 Biirge \. Lamb .. 151 
 
 22 Waste by Tenant for Years, 152 
 
 23 Tenant for Years, with Power to 
 
 commit W^aste, restrainable as 
 against prior Incumbrancer, 152 
 
 24 Injunctions against breach of (,'o- 
 
 venant when secured by Ptnalty ; 
 not where it is a Contract for 
 Compensation .. 153 
 
 25 Of Injunctions in the Nature of 
 
 Restraining Breach of Covenant, 
 rather than against Waste, 154 
 
 26 Conversion of Pasture into Plough 
 
 Land restrained, &c. .. 154 
 
 27 Lathropp v. Marsh and Johnson v. 
 
 Goldswnine, with Observations, 
 
 28 What constitutes ancient Pasture, 
 
 156 
 
 29 Attorney-General v. Foundling 
 
 Hospital consideted ■ ■ Page 156 
 
 30 Leases for Lives, with Covenants 
 
 for perpetual Renewal . . 157 
 
 31 Observations on DeSalis v.Crcssau, 
 
 158 
 
 32 Waste in Houses .. 158 
 
 33 Distinction between Things fixed 
 
 and not fixed to the Freehold ; 
 and of Waste by Tenant holding 
 over .. .. 159 
 
 34 Waste by Tenant in Tail after 
 
 Possibility .. ..160 
 
 35 Distinction w here such Tenant has 
 
 never been 'Tenant in Tail in 
 Possession .. .. 160 
 
 36 Will be restrained from committing 
 
 nialicious or destructive Waste, 
 161 
 
 37 Waste by Tenant in Dower and 
 
 by the Curtesy .. 162 
 
 38 Waste by Tenant in Common, 162 
 
 39 Waste by Mortgagor .. 163 
 
 40 Constructive Trustee restrained 
 
 from committing Waste .. 164 
 
 41 Where Account will be granted 
 
 without Injunction, and where 
 not .. .. 164 
 
 42 Injuuctions at Suit of Copyholders 
 
 and of Lords of Manors . . 168 
 
 43 Injunctions against Ecclesiastical 
 
 Corporations — AVhat Waste a 
 Parson may commit, and what 
 not .. .. 169 
 
 44 Ecclesiastical Corporations may 
 
 not cut Timber, except for Re- 
 pairs .. ". . 172 
 
 45 Discussion of the Question, whe- 
 
 theran Injunction will be granted 
 against permissive Waste . . 174 
 
 46 General Result of the Cases at l^aw 
 
 on permissive Waste .. 174 
 
 47 Injunctions to restrain Acts de- 
 
 structive of Pa-opeity, analogous 
 to Waste . . . . 176 
 
 48 Of Restraining Interference with 
 
 Assets of Testator or Intestate, 
 pending Litigation in Ecclesias- 
 tical Court . . . . 177 
 
 49 Other Cases of restraining Exe- 
 
 cutors .. .. 178 
 
 50 Injunctions to piotect Receivers, 
 
 179 
 
 51 Injunctions between Partners, 180 
 
 52 Other Cases of Waste, or Acts in 
 
 the Nature of Waste .. 180 
 
 53 Injunctions to restrain Alienation 
 
 of specified Chattel .. 181 
 
 b
 
 X\lil (OWTBNT*. 
 
 oVi I' - 
 
 •ii K 
 
 M I 
 
 ^•?'« •^«B ,.1113 li' ' 
 
 .. . . I Mi I lajascUM lo ;-- 
 
 ^Pftmrat. 
 
 I or r4)uiUlil« WwM 31 
 
 f \Va*ie M lwt«c«a MoflftfOr ■ttd 
 
 .Mort|[«((v« . . 33 
 
 n \V»«tt by IxelsMitrai Corpnra- 
 
 lioiu 34 
 
 4 ('jM-t on pmninir* Wmu .. ^A 
 
 Injiiiictiwnt lo nslrsio AcU il«- 
 
 •InteOvo o( Proptfly. •' 
 lo Wuw 
 
 7 lo/ 
 
 8 TIh, i . 
 
 iof of Idjuo< 
 
 i 
 
 a 
 
 37 
 
 nnl- 
 
 31 
 
 CHAPTER If. 
 
 Jnjiinctiont lo rrnroui i nj nMgtmfHt ofCopyri^kl$. 
 
 Treat, page 191-210; Sop. S2 • 40 
 
 1 GrouDtl of th« Jurittficikm . 191 
 
 2 i'lainlifr ntu«t show primA ftrit 
 
 rule .. ■ \9i 
 
 3 Whcrv c»cn yrimA Jaeit lulc, 
 
 llighi may be repelled by Nature 
 of Worii .. H>3 
 
 4 Matcman r. Tte^ H>'> 
 .'» Doolrine a* to fair t'*e of |>reced- 
 
 ,t, " " ■ .. ly? 
 
 G 1) of Quatitiiy. 
 
 ,,. 1 I'.r.r-. . 1<»8 
 
 7 A- T 
 
 8 it. 
 
 tcctcU . . . . -00 
 
 9 DoGlnnv as lo Book.* of ibo C'las* 
 
 of Road ik>ok*. (' ' ' 
 the like 
 
 10 Mow Piracy judicial.. 
 
 •iU-2 
 
 1 1 F.lfeel of putt-nj forth si Wnrt; as 
 
 the \Vr 
 
 12 Rule »« 
 
 r 
 
 i:l Inj 
 
 Pi' Letten 
 
 -1 
 
 f 
 
 f 
 
 I 
 
 — o 
 
 •^J6 
 
 14 Geoenl ReMli of the Auiboniiea. 
 
 ■^ lojunct 
 
 of UH) 
 
 Ifi Pn»i«»-. 
 
 17 Wliete , 
 
 I'lainuff 
 lille 
 
 18 !•' 
 
 19 S; 
 
 20 C , ^ 
 
 Copic* of .>pecthcauoM of I'a 
 ter!« 
 
 ^ .. 210 
 
 . whctiwr ibc 
 
 Ua rcTvon having 
 
 210 
 
 .. 212 
 
 .. 212 
 
 ai, aad 
 
 21 Ir 
 
 213 
 
 ■ : :nn ropribi; 
 
 *2I4 
 
 215 
 
 < a Ko. 
 
 24 Siau I & 2 Vid. c 69. 
 
 25 «' 
 
 .M_. 
 
 il5 
 Interoa- 
 217 
 
 }nD<*tjon« io 
 
 O IP
 
 CONTENTS. 
 
 XIX 
 
 s-upplfuicnt. 
 
 1 The Copyright Act, 5 iS: G Vict. 
 
 c. 45 .. ..P„!;c32 
 
 2 Doctrine of Byrnn v. Johnstone. . 34 
 
 3 What is fair Use of a preceding 
 
 Publication . . . . 35 
 
 4 Effect of putting forth a Work as 
 
 the Work of another . . 37 
 
 5. Injunctions to restrain Pubhcation 
 of Letters .. Page 37 
 
 6 Injunctions to restrain PubHcatiou 
 
 of unpublished Works .. 38 
 
 7 Copyright in Designs . . 39 
 
 8 Copyi'ight of a Foreigner . . 39 
 
 9 Copyright in Dramatic Exhibitions, 
 
 40 
 
 CHAPTER III. 
 
 (}f Injunctions to reslrain the hifriugement of Patents. 
 
 Treat, page 220—227; Sup. 41—52 
 
 7 What extent of Doubt of the 'I itlc 
 is requisite to induce Refusal of 
 an Injunction . . . . 225 
 
 8 What Affidavit requisite to support 
 Application .. .. 226 
 
 9 Injunction against Selling after 
 Expiration of Patent . . 226 
 
 10 Necessary Allegation in Bill, to 
 prevent Demurrer . . 226 
 
 1 Ground of the Jurisdiction. . 220 
 
 2 Formerly necessary to show esta- 
 
 blished Title . . . . 220 
 
 3 At the present day ;jri/H((/ac!e Title 
 
 sufficient .. ..221 
 
 4 Distinctions as to where the Court 
 
 will interfere, and where not, 222 
 
 5 General result of the Cases, 223 
 
 6 VVhere Injunction not moved for 
 
 till the Hearing- .. 224 
 
 ^upplfment. 
 
 Distinction as to when the Court 
 will interfere, and when not, 41 
 
 When a Party does not move within 
 a reasonable Time of filing the 
 Bill .. .. ..44 
 
 3 Where the Equity appears only by 
 
 the Answer . . . . 45 
 
 4 U'hat affidavit requisite to support 
 
 Application, and when motion is 
 on Notice . . . . 45 
 
 5 Of granting Inspection . . 47 
 
 CHAPTER IV. 
 
 Of Injunctions to restrain the Publication of secret Inventions, and the 
 Use o/' anothei-'s Name or Designation ; and the Imitation of Trade 
 Murks .... Treat, page 228— 236; Sup. 53— 57 
 
 1 Generally an Injunction cannot be 
 
 granted to restrain the Use or 
 Communication of a secret In- 
 vention .. .. 228 
 
 2 But may, when Defendant has be- 
 
 come fraudulently possessed of it, 
 229 
 
 3 Whether an Injunction could be 
 
 granted in Aid of an Agreement 
 to keep a Secret . . 230 
 
 4 Injunctions against Imitation of 
 
 Trade Marks where it is fraudu- 
 lent .. ..230 
 
 5 Where there is no Fraud . . 232 
 
 6 Injunctions to restrain Use of a 
 
 partnership Style ; or carrying 
 on a Trade, the Goodwill of which 
 has been the Subject of Sale, 
 233 
 
 7 Observations on Blanchard v. Hill, 
 
 235 
 
 8 Party asking tiiis Protection must 
 
 not himself have deceived the 
 Public .. .. 236 
 
 b2
 
 Injasctwa* le ttmxmu ilx- t 
 o<b«r'* Niine i-f I 
 
 ftvfplmral. 
 
 
 (>/' Imittmttiomt lo 
 
 ( IIAITKK V 
 .mm<t, TnaL |W(« 2,17-240 . Sup. 4§, 40 
 
 1 (trnvnl t'nonpU t4 il* Jw 
 
 ttan , . 
 
 2 A 
 
 3 
 
 
 .. -ia-' 
 
 6 I'rv|i«r ( uui*« uf l'rocr«tlint; lo It Ittjuucttou l« " 
 tUv NuiMBC*, public or |iri«*ir, ir^altmf Into 
 
 2<0 Iri 
 
 ti Whai contliiuic* tttflicicnl Nui- 12 No 1 
 
 Miicv lo justify equiubic luier- Nv. 
 
 knncv .. .341 ] 13 Of t'orpfMUire . . 
 
 I NuMiiiccA gtocrally 
 
 inpplrmrnl 
 
 66 i 2 ConliDg«al Nuimocc 
 
 240 
 
 f HAPTER VI. 
 Of' I»lunclions III Ant oj tpccific Ptr/brmancr : and lo '■ 
 
 Vrutt or Conjuintfr 
 
 1 Geocral Docinnc u lo inirrfercncc 
 
 of Kf]uiiy io Aid of »i>ccif)c I'er 
 fomitncc . . 250 
 
 2 iDJuortion* io Aid of fpcafic Per- 
 
 formaocc of AgrccmcDl* lo pur- 
 chtM" I and .. ?'i2 
 
 nn 
 
 wl ...-. ..... ■■ ■ .; 
 
 I^w.. .. .. 2.W 
 
 4 InjunrtioM lo re*tniin Breach of 
 
 CoTcnaol* in ljn%t* . . 2&.S 
 
 5 A« lo TolnnisfTf !>f>~l4 2V> 
 
 6 V- ' 
 
 7 (■ 
 
 car,- 
 
 8 Of the JuriadictMn lodireci ; 
 InJQDCtion lo enforce the I'cr 
 
 . Treal. 2S0— i:: 
 
 (orroaocc of a tubttaolivc act, 
 
 ■J 60 
 
 9 g<; 
 
 10 Itc- 
 
 compel 
 
 Iraoe -'" 
 
 12 Injunctiooi lo mlnua Brrarti of 
 
 Inm .. 2«j6 
 
 I. Whcno Bteaek of po»<UTc 
 
 Tru.t .. im 
 
 n. W 
 
 «• ■ 
 III. W> 
 
 IJ M^
 
 (JONTEJNTS, 
 
 XXI 
 
 14 Of Injunctions to restrain the Re- 
 
 tainer and Pleading of particular 
 Counsel . . Page 270 
 
 15 Difference as to the Interference 
 
 by Injunction, where the Title is 
 legal, and where it is equitable, 
 •271 
 
 16 Parties asking Prntection of their 
 
 Title as claiming under a Trust 
 must clearly show that their Title 
 is a continuing one .. 271 
 
 17 Injunctions to restrain Acts incon- 
 
 sistent with giving full Effect to 
 an Agreement . . . . 273 
 
 18 Of Cases where Parties deprive 
 
 themselves of their right to the 
 assistance of Equity for enforcing 
 an Agreement . . I^'ig^ 274 
 
 19 And herein in particular of the 
 
 Effect of Laches . . 276 
 
 20 Construction of Provisoes for re- 
 
 suming demised Premises, 276 
 
 21 Injunction to restrain under Cir- 
 
 cumstances presenting to a Bene- 
 fice . . .. .. 277 
 
 22 Special Case of Construction of 
 
 an Agreement to let Farms, 277 
 
 23 Necessary that Party coming for 
 
 Relief should be competent to 
 bind himself . . . . 277 
 
 g^upplcmrnt. 
 
 1 Injunctions in Aid of Specilic Per- 
 
 formance of Agreement to pur- 
 chase Land . . . . CO 
 
 2 Injunction to restrain Breach of 
 
 Covenants on Leases . . 60 
 
 3 Of the Jurisdiction to interfere by 
 
 Injunction when the Agreement 
 
 cannot be performed as a Whole, 
 61 
 
 4 Of Mandatory Injunction .. 64 
 
 5 Injunctions to restrain Breach of 
 
 Trust . . . . . . 66 
 
 6 Injunctions to restrain presenting 
 
 to a Benefice . . . . 67 
 
 CHAPTER Vir. 
 
 Of' Injunction!; between Fa!-tners 
 
 1 General Objects of Injunctions in 
 
 Partnersiiip Transactions, 279 
 
 2 The Partnership must be complete, 
 
 to justify the Interference of 
 Equity . . . . 280 
 
 3 Court will not in general interfere 
 
 between Partners, unless there is 
 ground for a Dissolution . . 280 
 
 . Treat, page 279—284; Sup. 68 
 
 4 Where there is a parol Agreement 
 
 for Partnership without specified 
 Duration .. .. 282 
 
 5 Of Leases to Partners . . 282 
 
 6 Injunctions in Cases of special 
 
 partnership Agreements . . 283 
 
 rti^plcment. 
 
 Injunctions between Partners 
 
 68 
 
 CHAPTER VIII. 
 
 Injunctions relating to Canal, Railway, and other Public Companies, 
 
 Treat, page 28.')— 304 ; Sup. G9— 73 
 
 1 General Principles applicable to 
 
 Acts of Parliament for executing 
 public Works . . . . 285 
 
 2 Injunction may be granted, though 
 
 no irreparable Spoil or Waste, 
 
 288 
 
 3 Limitation of the Doctrine of Agar's 
 
 case . . . . . . 288 
 
 4 Company not protected when act- 
 
 ing against legal Rights . . 290 
 
 5 Nor permitted to assess Lands not 
 
 included in their Notice . . 291
 
 XXII 
 
 cokti:ni>. 
 
 i\ 
 
 7 Uj 
 
 .,. 
 
 at \\ wXit auuU if 
 •ntorfora uMb a 
 W ' 
 
 II. , .:>. a^iaM * 
 
 paoy Umq is onluurv 
 
 1> (jr o/ Om (.'*««i ■• lO 
 
 « tturticnMllacitv*. 
 
 10 JuitMltclioii of K<|uiljr niH lakrii 
 
 j» .^ )^. .,> w r.,, V.I . ( !• .tt.^ 
 II. 
 
 11 ll.> 
 
 Kkt;r«.u>7 ul lU Jiiritilicltuit, i'Xt 
 
 12 Court aci* ooly in tMl of real ot 
 
 pmum«(l l«fil Kigbi* . . 2}*6 
 
 10 1 l>r >!«Ni wlwri 
 
 It* U«« Uca •! Am»-1< 
 
 17 Of •Mb Aicrr. 
 u«ocr*. bciri, 
 Iwmrbt 
 1 lojunrtMin to 
 i»nr I'rocwtl 
 l«nduiK lo allw linM Lah, 
 and Objrct 
 
 Ifrvyytranit. 
 
 I Kxccption lo Ut« GeocnJ Ituir, 
 iliit a Cumpanjr csroc<liag lU 
 I'oMrrt wilt be mtraincd.. GO 
 
 '1 1)1 the F.lTrct of fjrhc* .. 70 
 
 3 Cicnrnil rmiripli- on wliiclt lh« 
 
 Court acit on inlcrfcnne •• 70 
 
 4 Of Agrccmenu between rtrtM* •• 
 
 lo tbcir Coodnct to procrtJioi; 
 
 before I'arliameot .. 71 
 
 A I DJ unction* to mtrain Coai(aaoiea 
 
 Jrr ■ • - -. 
 
 6 Cane - 
 
 7i 
 
 CIIAITER IX. 
 
 InjuiKlioM in Malttrt of' BoMkruptcy . Treat, page 305 — 310; Sup. 7'! 
 
 10 In ' I.I 
 
 G. ' 
 
 
 ' 
 
 g In- 
 
 J" 
 
 
 
 305 
 
 Inj 
 
 
 
 . : n^niai 
 
 I 
 
 
 nipt d 
 
 upuling the 
 
 C 
 
 
 
 305 
 
 Applies; 
 
 ,.ul. lt> 
 
 l>c by 1 
 
 'clition, and 
 
 not bv 
 
 Kill 
 
 
 307 
 
 wi,. '■ 
 
 I' 
 
 
 
 1, 
 
 1.: 
 
 
 
 1 
 
 CO v • 
 
 
 
 ■■ r 
 
 Pa^tuebl 
 
 
 .110 
 
 AtUm V. 
 
 Al/Ar. 
 
 
 310 
 
 Ak- 
 
 
 
 I 
 
 fr. 
 
 
 
 I 
 
 < V 
 
 
 1 
 
 «.i>i «. ...fc 
 
 \ 
 
 
 311 
 
 1 .1.. . 
 
 
 t proTc aoti At*- 
 
 iraiu lor Mine 
 
 KCDI 
 
 312 
 
 II N. 
 
 1-2 \\i 
 
 13 In 
 
 I. 
 
 M W 
 
 !«>.- - - 
 
 bn ilcblor ba» lot* an 
 
 15 Co 
 
 li.- 
 
 lo 
 
 o' 
 
 16 Cl> 
 
 Cu'- 
 
 nipi 
 
 >'( an 
 
 , cy of 
 
 Adtan- 
 
 314 
 
 ^15
 
 CONTENTS. XXlll 
 
 SuppUmfnt. 
 
 Injiiiictionx in Mailers of Bankruptcy .... Pa^e 74 
 
 CHAPTER X. 
 
 Jnjunclions to remove outstanding Terms for Years, and other legal Impe- 
 diments Treat, page 317 — 320; Sup. 74 
 
 1 When an outstanding- Legal Inipe- 4 Will not be granted on Motion 
 
 diment will be removed by In- prior to the Decree .. 319 
 
 Junction . . . . 317 5 Where, it seems, there would be an 
 
 2 Not if there is a rebutting Equity Exception .. .. 319 
 
 in the Defendant .. 318 6 Doctrine extended to the Removal 
 
 3 General Statement of the Doctrine of other legal Impediments, as 
 
 318 well as outstanding Terms 320 
 
 ^upplfiweut. 
 
 Injunctions to remove Outstanding Terms and other legal Impediments 74 
 
 CHAPTER XI. 
 
 Of Injunctions in Interpleader Suits, Treat, page 321 — 327; Sup. 75 — 7G 
 
 1 General Principles of Interpleader 5 Of bringing the I'und into Court 325 
 
 Suit .. .. 321 6 Course wiiere some of the Parties 
 
 2 Case of Exce|ition to the General are out of the Jurisdiction, 326 
 
 Rule . . . . 323 7 Stakeholder Defendant in a Suit 
 
 3 Practice is to obtain Speciallnjunc- touching the Fund in dispute 
 
 tionatonce .. 324 cannot move for Injunction 326 
 
 4 No Affidavit of Facts now neces- 8 Of Interpleader by a Tenant against 
 
 sary . . . . 324 his Landlord . . 327 
 
 ^upplrmntt. 
 
 1 Of dissolving the Injunction in an | and tiie Terms on whicii liie Suit 
 
 Interpleader Suit, and of the [ sustainable . . 76 
 
 course of proceeding generally, 75 3 Construction of the Interpleader 
 
 2 Of the Affidavit of no Collusion, Act, I &2 Will. IV., c. 58 76 
 
 CHAPTER XII. 
 
 Of the Jurisdiction in general to grant Injunctions to stay tvrongfuL Acts 
 of a special Nature . . . Treat, page 328—344 ; Sup. 77— 80 
 
 1 Jurisdiction of Equity not ousted : 3 Jurisdiction to restrain the Marriage 
 
 because there is a Remedy at I of Infants . . 330 
 
 Law . . . . 328 I 4 Jurisdiction as to Recognition of 
 
 2 Jurisdiction to interfere in Cases of , alleged foreign Governments, 
 
 Duress .. .. 330 I 331
 
 \XIV 
 
 • ^l«T»t^T*. 
 
 V •tigtil oo ' 
 
 I Of unin(riii»ju«i •■.J... ;.> K-glil u< V 
 
 I*r«)|>cnjr 77 o' 
 
 'J (ita«ral rnociplc oo wbieh lh« 3 laju: 
 Covrt proc««J« la rMUmtaiof or 
 
 !• A i; 1 111. 
 i)K rni riiAc TU K in matters of injunction. 
 
 (HAITKH 1. 
 or TIU: MODE or OBTAINIKO DliUKCTIONft. 
 
 Sectiok I. 
 
 A$ to Imimncliom to tlay Proceedinft at Law, 
 
 Treat, page* 3 15— .363; Sup. 81— 84 
 
 I Injunction* to «Uy Procfcdinf:* a( 12 lojuoclion* not grauled beforr !)«• 
 l^«t. not grantcti until ilill filed fault 361 
 
 346 13 F.ic«ptioDs lu the Uulc ■ 362 
 
 2 Nor agaioti Pcrwn nol a Party 
 
 346 
 
 3 Injunction muxl be prayc<l by (be 
 
 Dill 
 
 4 Of Scnrice of Sabporna m ap|w<ar 
 
 347 
 
 5 How common Iitjunctioo olitaine<l 
 
 348 
 
 6 Co 
 
 I).i 
 
 7 A» 
 
 jir 
 
 8 Kff. 
 
 I. 
 
 9 NM. 
 
 10 Whirt r«.j;-lar 
 
 obtain an Iniu 
 Uo- 
 
 11 Inj 
 
 tamable any 
 n 348 
 
 i.fal 
 
 360 
 
 \c(ion« be- 
 
 1M 
 
 14 Chmr^r-. R',!r, of 1833, bow af- 
 
 of Comntoo I.aw 
 U . . 364 
 
 346 1.') Of 
 
 1.. . . a66 
 
 17 Kfl' m-r on an Injunc- 
 
 tion "^'/(j 
 
 18 .\« to granting Inji. • t 
 
 \-.r\rX .: r >„ « . „.;,. 
 
 • >'■ '■ have de- 
 
 fc ■* . 3.^7 
 
 19 ('onti^wc IujUi.ciM>c< and Order to 
 
 exletMl It to »J«v I rial not ob- 
 U • 358 
 
 20 VVi .exe-
 
 CONTENTS. 
 
 XXV 
 
 21 Where Bail restrained . . Page 359 : 
 
 22 Where common Injunction not ! 
 
 applicable . • . . 360 
 
 23 Exceptions to the Rule that an In- j 
 
 junction against Proceedings at 
 Law is not obtainable except on 
 Bill .. .. 360 
 
 24 Observations on the Cases of Ex- 
 
 ception wliere the Suit is deter- 
 mined .. .. Pa^e 361 
 
 25 Of granting Injunctions on Con- 
 
 dition of paying Money into 
 Court .. .. 362 
 
 26 Injunction till the Hearing dis- 
 
 cretionary . . . . 363 
 
 Siupplcment. 
 
 1 When tlie common Injunction may 
 
 be obtained . . 81 
 
 2 As to advancing Proceedings which 
 
 would delay the common Injunc- 
 tion . . . . 82 
 
 3 Exceptions to the Rule, that an In- 
 
 junction against Proceedings at 
 
 Law cannot be obtained except 
 on Bill filed . . 82 
 
 4 Wiien a special Injunction to stay 
 
 Proceedings at Law obtainable, 83 
 
 5 Of restraining Orders, Distringas, 
 
 and Interim Orders • • 83 
 
 Section II. 
 
 As to Special Injunctions 
 
 1 Special Injunction not obtained in 
 
 general without Bill . . 364 
 
 2 Exceptions to this Rule . . 364 
 
 3 Injunction granted in urgent Cases 
 
 before Appearance, and even 
 without Subpoena served 365 
 
 4 But general rule that Subpoena 
 
 should be served . . 366 
 
 5 Exception wliere Bill filed in 
 
 Vacation . . . . 366 
 
 6 General Rule that after Appear- 
 
 ance, special Injunction only 
 granted on Notice . . 367 
 
 7 Other Points concerning Notice of 
 
 Motion .. .. 368 
 
 8 Special Injunction not granted 
 
 unless expressly prayed . . 368 
 
 9 Particular Title must be shown 368 
 
 10 In Waste, the Case must be for 
 
 present or threatened Waste 368 
 
 11 In general, special Injunction not 
 
 granted against a Person not a 
 Party to the Suit . . 369 
 
 12 Exceptions to this Rule .. 370 
 
 Treat, page .364—375 ; Sup. 84— 8G 
 
 13 Observations on Attorneit -General 
 
 V. Nichol . . . ■. 370 
 
 14 Injunction granted in Favour of an 
 
 Equitable Incumbrancer, though 
 Mortgagor not before the Court 
 372 
 
 15 On ex parte Application, all the 
 
 Facts must be truly stated, but 
 it is not necessary to state the 
 whole Law . . 372 
 
 16 Proof of an Instrument not ad- 
 
 mitted, necessary ; but not of the 
 personal Title of the Plaintiff, 373 
 
 17 Of Affidavits in Support of Mo- 
 
 tion .. .. 373 
 
 18 Where on an Issue both Parties 
 
 are directed to be examined 374 
 
 19 Where Plainlitf swears to his lie- 
 
 lief of Facts within the Defend- 
 ant's Knowledge, and the De- 
 fendant will not deny them 374 
 
 20 Where Answer of a Defendant 
 
 read against co-Defendant 375 
 
 Sitipplcmciil. 
 
 1 As to the Exceptions to Rule that 
 
 an Injunction cannot be obtained 
 except on Bill . . 84 
 
 2 Injunctions against Persons not 
 
 Parties . . . . 85 
 
 3 What requisite to support an Ex 
 
 parte Application . . 85 
 
 4 Other Points . . . . 85
 
 XWI 
 
 conrKHTt. 
 
 ( MAI'ILK II. 
 
 KsteiHiiH^f ll>€ I'ommom Imttimeliom lo Uatf VrHtl. 
 
 Trwit x»go 370 -387 ; Sup. «7— 01 
 
 -h 
 
 I r 
 
 rn«l. VoctT.t) 
 
 •i. ()r<l'r <rilboul AfftJa- 
 
 vi( I lery M ctpcrlod 
 
 lo b. ....,.,... .. 377 
 
 3 Artulivii rftnool ht cunlradictad 
 
 378 
 
 4 Thorp* V. llHgktt eooMlcoi wiib 
 
 iht- Fldlr .. .. 378 
 
 .'> I > • tirnclinK the Common 
 
 a* laul ilowD by Ixird 
 
 i.u 381 
 
 () ( a«">Mlicrv the conitnon InjuncliDi) 
 
 (itfU nol be fir»t ()lil»inc<i . . HJU 
 
 Onler lo ctlead, nol !»•<}« cloi# 
 on the Timr fur the A»uim 
 
 H (>«ocr«lly inual be ' 
 but (bef« may be an L- 
 
 383 
 
 9 Sufioeoi Aoawtr Mtd, a food 
 Cirottod for reiMtiog Motioa to 
 
 10 At lo cii- 
 
 lUturn < ' 
 inioc Wit 
 
 1 1 ('a*«« wh< ' 
 
 rtlcti'l o:, ' 
 
 1 A««olhe Affwlivii of nialcnalilv.87 6 A» to rr«t*ting the Moiioo on the 
 
 I -/ A_. . • .' • t 
 
 2 EfTcctn of Delay in obl&iaing Com- 
 
 mon Injunction .. 87 
 
 3 A« to Athdavit lM.ing contradiclcJ, 
 
 and of the Doctrine of Thorp* v. 
 Uufihtt .. .. 88 
 
 4 Form of the common Injunction, 88 
 
 ground of An> 
 and aA to Iri' 
 Answer ^^ ■ 
 
 6 Where Motion to estcod made on 
 
 nmcn-icd BiU .. .. W 
 
 CII.MTKU III. 
 
 Of' the Effect on Injunclioni of Awendmenli ; and of leceittn^ an In- 
 junction Treat, jwgc 388—397 ; Sup. 92, 93 
 
 1 Kffect of .\mcodmeDl on the Coiti> 
 
 mon Injunction.beforc the Orders 
 of May. 1839 .. 388 
 
 2 Aherntion , "^ • ' • ' - '. 
 
 Onlcr oi 
 
 3 Practjcc fo: . 
 
 did not prejudice a special In- 
 junction . . . . 30^ 
 
 4 Former I'mcticc as i' 
 
 u hrn Injunction h 
 
 5 I 
 
 and /'ia»r V, ,4rf';«r .. 392 
 
 7 Effect of Second Order of May, 
 
 1839, on the Practice as to amend- 
 ing after F-xceplinn*. . . 392 
 
 8 Of He \tT,fn.lf ■) 
 
 9 Iju v. Raventero/t, and Rreten r. 
 
 Sttcall. and KfTcct of Th.r ! '>■- 
 dcr of May, 1839, on ( 
 thi< Nature . . 1 
 
 10 Where InjuDCtion ont praM . 
 
 the l.ni .. .. ' ; 
 
 11 
 
 Wh 
 
 ft: 
 
 1 3 Wl 
 
 14 \V\ 
 
 UCiiiii. or a/ur 
 
 .395 
 
 iicnt on a Notice 
 
 396 
 
 ...,i '<i.»mI .Vir, 
 
 DiM«i.iUoa of lin. h.juBCwOci . 
 not lo let it be diMolved, and 
 then tno»e to rerivr . . 396
 
 rONTENTS. 
 
 xxvn 
 
 1 Effect oa the Common Injunction 
 of amending and of applying for 
 Leave to amend without Preju- 
 dice . . . . Ptige 92 
 
 Suppletnent. 
 
 2 Application of the Third Order of 
 9th of May, 1839 .. Page 93 
 
 CHAPTER IV. 
 
 Of Breach of an Injunction mid its Consequences. 
 
 Treat, page 398—407; Sup. 94— 9G 
 
 1 What constitutes Breach of an In- 
 
 junction . . . . 398 
 
 2 Constructive Breach of an Injunc- 
 
 tion 399 
 
 3 What is not Breach . . 400 
 
 4 Construction of the Proviso in the 
 
 Common Injunction . . 401 
 
 5 Rlore as to what amounts to Breach 
 
 402 
 
 6 Party entitled to take advantage of 
 
 Breach may lose it by Laches 
 
 404 
 
 7 Of Breach by proceeding against 
 
 Bail 404 
 
 8 Consequence of Breach of Injunc- 
 
 tion ; and proper Course against 
 the Parties committing it . . 405 
 
 9 Irregular Order is still an Order, 
 
 and must be obeyed . . 407 
 
 Supplement. 
 
 1 Of Service of an Injunction .. 94 | 2 What is a Breach 
 
 94 
 
 CHAPTER V. 
 
 OF THE PRACTICE IN DISSOLVING INJUNCTIONS. 
 
 Section I. 
 
 As to dissolving Injunctions to stay 
 
 1 General Rule that Application to 
 
 dissolve must be by Motion 
 
 409 
 
 2 Regular Course of Proceeding to 
 
 dissolve . . . . 409 
 
 3 If Exceptions are shown for (Jause, 
 
 and not sustained, the Injunction 
 falls 410 
 
 4 When the Plaintiff" may move to 
 
 revive .. .. 411 
 
 5 Pioper Course when Order Nisi 
 
 has been improperly obtained 
 
 411 
 
 6 Effect of Plea on Right to dissolve 
 
 411 
 
 7 When a special Application may 
 
 be made to dissolve without an 
 Order Nisi .. .. 411 
 
 Proceedings at Law. 
 
 Treat, page 408—427; Sup. 97—102 
 
 8 Of References for Scandal and 
 Impertinence .. .. 412 
 
 9 Extent of the Similarity between 
 Reference for Insufficiency and 
 Reference for Impertinence. .413 
 
 10 Practice on References for Insuffi- 
 ciency . . . . 414 
 
 11 Effect of Delay on Defendant's 
 Right to obtain Order Nisi on 
 putting in his Answer .. 415 
 
 12 Effect of Delay in giving Notice 
 of tiie Injunction, on tiie Plain- 
 tiff 's Right to sustain it .. 415 
 
 13 Of losing the Right to show a par- 
 ticular Cause against dissolvino- 
 
 4l6 
 
 14 Ground for dissolving under the 
 Sefond General Order, 1839, 416
 
 XXVIII rojiriWTii. 
 
 I 
 
 4i* 
 
 .••(. .4itt I ((. V\Ue« A 
 
 I'l thai alar rv rv«J (<' 
 
 III. 8uic ol 
 Dwdt. 
 
 419 IV. tUrgtmt,U**d4,Uta 
 
 ?0 (iroeimllvihencaoiMitbcftoUnUr tM v. O'^n 
 
 to d»»u>lve an OnJcr lo«ilan<l, >• 1 r. AiHwer I 
 
 wpvraip from ihc Onirr for »a l'»<*u < ' 
 
 420 »\r: 
 21 crv there ha* \tttn • 
 
 :iJ ihc riftinUlTal I^w '!. W* 
 
 .. 4il 
 2.' I'ljunctino on DmoimmI ' ' 
 
 ol the liill .. .. 421 I 27 Wb«lAlU...<> 
 
 2:1 l)i»lin<"tion in rr^n! to thf Flfrrl ' to »u|»poM M 
 
 of a 1 I Iriiui.rlion kfaiDtt » \ trlicl ib 
 
 lion I .. .-.( .. .. 427 
 
 nfltf i »t. i 
 
 1 Of iniktn;' a'i nliitc or dMch«r(iQg fl A^ In rltt^olvir- In-tinCrnn ajatntt 
 
 lU ■ .... 97 
 
 2 WItr; .- N'i*i can be di»- 
 
 3 < lor Imper 7 F-ffeci of a D^njurrtf t- 
 
 ' a^aiD»t Jt*- 
 
 98 fi f)f rradiDf 
 
 4 I to d'*»..!\irij or rrfrr Answer. 
 
 i>ii(; Au* ' liootigooreULy tl.« Aia»«r- ■ 101 
 
 5. W lirn Orti. 
 
 nnti made Hi>-i>ii!'r Im 
 
 Sr.cTiox II. 
 
 O/ditaohing SpetutI litjtincliont . Treat page 427— 432; Sup. 102— lOd 
 
 I (. -,0 r. r <!.--"!wnir a Specialln- 14! 
 . ., « "^ 4?7 I 
 
 I>i»tiDC<>on witcre the rian. 
 
 Inji: ao 
 
 ^ "^ i njvDCtion . . 430
 
 CONTENTS. 
 
 XXIX 
 
 6 'J'lie Rule that Affidavits are not 
 
 received against the Answer, ap- 
 plies only wiien it is a full Answer 
 P.;^e431 
 
 7 Rule as to Time of filing Affidavits, 
 
 when a Motion to dissolve stands 
 
 over at the Plaintiff's instance 
 
 Page 431 
 8 Where there are several Defend- 
 ants, and some only answer, Affi- 
 davits may be received against 
 those Answers .. .. 432 
 
 Supplemrnt. 
 
 1 Whether, when the Bill is demur- 
 
 rable, the Defendant may elect 
 to move to dissolve . . 102 
 
 2 Of Affidavits .. .. 103 
 
 (a) What Limit as to filing 
 
 103 
 
 (b) When Affidavits may be 
 
 read and when not against 
 
 the answer . . 104 
 
 3. Of some of several Defendants 
 
 moving to dissolve . . 106
 
 TABLE OF CASES. 
 
 The Cases in the Supplement nre included and distinguished by the word 
 Sup. prefixed to the paging. 
 
 A. 
 
 Page 
 Abernetliy «. Hutchinson .. 212 
 Abraham n. Bubb .. 160, 161 
 
 Ackland v. Attwell . . 171 
 
 Acruraaii i;, lJl■i^tol Dock Cojiipaiiy 
 
 367 
 Acton v. Market .. .. 421 
 
 Aduey V. Flood . . . . 393 
 
 Agar V, Regent's Canal Company 
 
 286, '287, 293 
 Alder r. Fouracre .. .. 282 
 
 Aldrcd u. North Midliind llail- 
 
 ":.y .^^(^1 
 
 Aldrich I'. Cooper .. .. 61 
 
 Algar ?;. Murrell .. Sup. 13 
 
 Allard v. Jones . . 367, 368 
 
 Allen v. Kilbre .. 307,310 
 
 V, M'Plierson .. Sup. 1,) 
 
 Ambrose v. Uimmow Union Sup. 20 
 Anderson v. Baily . . 92 
 
 D. Darcy .. .. 347 
 
 V. Wallace . . 283 
 
 Andrews v. Herry . . . . 4 
 
 Angell V. Haddcn . . 322 
 
 Angerslein ?;. Hunt .. .. 408 
 
 Annesley v. Rookes . . 353 
 
 Anon... 130, 110,152, 160, 161,221, 
 246, 247, 342, 351, 360, 369, 
 375. 398, 401, 423, 432, Sup. 6 
 
 A;)pleyaid t'. Seton 
 Aprice's case 
 Archer o. Hudson 
 Argles V. Heasenian . . 
 Arundel v. Trevillian 
 
 • Lady V. Pliipps 
 
 Ashby V. Jackson 
 Askani V. Thompson 
 Askew V. Townsend . . 
 Aston V. Aston 
 
 V. Heron 
 
 Attorney-General v. 
 oihers 
 
 377 
 
 ..162 
 
 Slip. 90 
 
 126 
 
 22 
 
 181 
 
 Sup. 88 
 
 280 
 
 .. 344 
 
 35, 36, 144 
 
 127,128 
 
 Aked and 
 
 271 
 Beiitham .. 429 
 
 Page 
 
 Attorney-General t). Cleaver .. 238, 
 
 240, 241, 264 
 
 V. Doughty .. 238 
 
 V. Eastern Coun- 
 ties Railway Company . .iSh/>. 22 
 
 11. Forbes .. 248 
 
 V. Foundling 
 
 Hospital ., 156 
 
 I'. Fuilerton .. 71 
 
 t!. Johnson .. 249 
 
 V. DukeofLan- 
 
 caster . . 370 
 V. Mayor of Li- 
 verpool . . 373 
 
 V. Corporation 
 
 of Liverpool . . 297, 298, Sup. 70 
 
 — V. Rlanchester 
 
 and Leeds Railway . .133, 265 
 V. Duke of Marl- 
 borough . . 150 
 
 V. Nichol 237, 
 
 238, 239, 245, 246, 366, 371 
 
 r. Pearson .. 381 
 
 V. Richards .. 249 
 
 t'. Southampton 
 
 Railway Company . . 296 
 
 V. Strange, .ii'p. 38, 
 
 105 
 
 V. I'yndall 
 
 ey V. Vernon 
 
 Atch 
 
 Atkinson v. Collins 
 
 V. Keinble 
 
 Attwood V. Banks 
 
 V. Barham 
 
 .■\ustin V, 'J ynte 
 Avlet V. Dod 
 Aylett !;. Hill .. 
 Axe V. Clarke 
 
 B. 
 
 61 
 
 .. 361 
 
 374 
 
 . . 374 
 
 40, Sup. 6 
 
 .. 50 
 
 55 
 
 78, 79 
 
 .. 68 
 
 .. 403 
 
 Bach t). Longman ,. .. 216 
 
 Backhouse v. Hunter . . 98 
 
 Bacon v. Jones. . 175, 220, 223, 224, 
 
 Sup, 43, 78 
 
 d 2
 
 x.xkii 
 
 I AIII.K UV f-.\it|9l. 
 
 r.«r 
 
 
 face 
 
 Hailcjr t. T«jrln' .«IB 
 
 Jlirtt, I. f..,i,:,. 
 
 • i37 
 
 r. Woioii . . 554. .li* 
 
 " ' • • 
 
 *Oi 
 
 llailjr ». Drrrrrut Ifl 
 
 r • 
 
 SJt 
 
 ». r«^luf ,. Ic^.»|8 
 
 1 1 ■ » , 
 
 1 . 
 
 llailirt r llaikrr .. 14U,t^: 
 
 1 
 
 190 
 
 Haiti* ill c. H«Mlrl^ fur UiiTMMu* 
 
 I...' 
 
 ' ■' 17 1 
 
 or IV fill Kiio«lidcr..f5«. Sti|i.6l 
 
 
 K.S 
 
 Ball r. Olirrr 177 
 
 
 170 
 
 «. Sioiic . . 1^.1, 106 
 
 
 l7| 
 
 lUlU 1. Sirull .. .. Sip 66 
 
 HiOtluti t 1 
 
 .10, 
 
 Bank of KiiKlaiiil ». l>«fvM.« . . 3%6 
 
 
 -^r-H^ 
 
 ». luiiii. . I?V. kVi 
 
 BI<Kk«rll ». Ilarprr 
 
 SI4 
 
 Dank of IrrUntl r. llrrofutU . . to 
 
 Blaror t. Wilkintoti 
 
 .. S»t 
 
 Uarrirl.l r. Nictioltuii i.i KclU .. »7.1 
 
 Blad •. BaiKfKld .. 
 
 103 
 
 Barkrr i. lUrr .178 
 
 Bia(ra«e i. Illagrate 
 
 . . *i.r. '•' I . •-- ; 
 
 
 UUkri.Whilr 
 
 
 - /^ * ! m .^.M 
 
 lUakrttffr •. (•(■t<nnr;;an«)> r 
 
 
 c. Mrlli*ti 318 
 
 c. 
 
 ■/61. •.'ijL. ;Li; 
 
 r. Minirr .. .119 
 
 BUi, 
 
 180 
 
 r. N ••'• "»••'' fiUliirr 
 
 ■ ■< . 
 
 V5i 
 
 Uail>' V .. S«p. 8:> 
 
 rlt.Scanlan 419 
 
 r. \ .. 18 
 
 1 1 > 4«eii . . 
 
 58.1, 38A, 391 
 
 Barnard r. Suiluii .. .Vm^. i 
 
 lii'M.i.. I.i , K>re 
 
 . . Smp. 86 
 
 I. Wnllit .. .. Sup. |i» 
 
 III.,.,-!.!! ■ . (,!;,.). loi.t 
 
 .. 131 
 
 Buriirtlr^- Canal Company v. 
 
 I tyii 
 
 40 
 
 T-il.ill . . Smp. 105 
 
 i ' ^ , 
 
 Smp. Si, 36 
 .. Ii9 
 
 
 
 HarnrU r. Molt- H.» 
 
 Bo.ilh t, ljr\cr%\i 1 
 
 104 
 
 Bainrjr r. Lucki (1 .. 3I'.> 
 
 V .lir .. -', , , . .. 
 
 400 
 
 Barr 1. Ui^cin* .. .. 108,150 
 
 1 
 
 7t 
 
 lUrrrlt i . Hlagra»c . . «5J 
 
 i . ■'. 
 
 . . Smp, 9B 
 
 r. Htkrll . . 4V0, its 
 
 Hulliaiu I. (JU:k 
 
 410, 411 
 
 Marrv 1. Barrv .. 148 
 
 Boll r. Birch 
 
 4»7 
 
 H.ir«rll r. HA?wrli .. 5ii;i. 101 
 
 Bfiullher t. Slulibi 
 
 39 
 
 B.ir«i"- 1 . Itr.) k^.. ., Sup. \04 
 
 Boulicr r. B.,ulirr .. 
 
 101 
 
 M.iikclt 1. (■iiniiiiiglum .. «S3 
 
 Ikiullon r. bull .. 
 
 .. 2ei,«!f« 
 
 HflMCU I. HasscH .. .. J.SO 
 
 Bowdrn r. iio<i|(e .. 
 
 386 
 
 Bauhclor r. Blake .. I?7 
 
 Mowdirr r. lk>wdlcr 
 
 406 
 
 Batrmaii I. Johnton . . .. 182 
 
 Bow let' cue 
 
 .. 160 
 
 r, Willoc .. 66 
 
 c. Orr 
 
 333 
 
 Bathur^t r. Burden . . . . 239 
 
 B<m maker i. Moore 
 
 .. 41 
 
 
 B..X I. Allen .. 
 
 .. ?48 
 
 
 Bavli? r. Groul .". .. ?7 1 
 
 Ilr.,. ,■ ,. W,!,!. 
 
 .. 384 
 
 Bcnttv t. Bcativ . . 188, 4JO 
 
 1 
 
 ■ . 84, 88 
 
 Brauchamp r. MarquM iiuiiUry. . 101 
 
 1 ■ 1 
 
 'uf\. ?5. «6. 
 
 Beck ford r. Kcmhic . . . . 71 
 
 
 . »8, S9 
 
 Bccklcv 1 . Nrnlanii . . 14 
 
 Bradkjr r. Bkitai 
 
 .11* 
 
 Beer r. Ward . . . . •H,9 
 
 r, Sirachv . • 
 
 171 
 
 Bell r. Mull and Selhv RaiUa.v 
 
 Bramwcll r. lialcomb 
 
 198 
 
 Company . . ' i93. «94, 367 
 
 BrKheno r. Tliorpe 
 
 •/68 
 
 r. Walker . . ?00, t03 
 
 Bficknrll r. Ruaifurd 
 
 1«9 
 
 r. Whitehead 199 
 
 Bfickwood r. Harrer 
 
 .. 367 
 
 Ik-ntlev V. Fuller . . 816 
 
 Bridgenian i. Green.. 
 
 «9 
 
 Herkrl'iv r. Hrvni- 4?9 
 
 H rid ton r. Be neck e 
 
 S.,p. 4?, 70 
 
 IVwick'l. W!/|!'.rl() . . .. Ill 
 
 r. M'.AIpine 
 
 Smp.il 
 
 i.icJ.f..rd 1 . M.r .,, » . . ii.\. Sup. 70 
 
 Brierlrv r. Walni«lr\ 
 
 348 
 
 lii^iiold I. Andiui .1 .. ^. . r.; 
 
 i:,, .,.;, i-,.i.., . : 
 
 ."i?.i 
 
 Birch 1. Blagravc 
 
 I • : 
 
 11,11
 
 TABLE OF CASES. 
 
 Brook V. Clarke 
 D. Skinner. 
 
 114,1 
 
 Brooks V. Haii;li 
 
 V. Purtoii 
 
 V, Reynolds 
 
 Broom v. Summers . . 
 Brougliton v. Fitchford 
 Brown V. Brown 
 
 V. Cooke 
 
 V, D.ivis 
 
 V. Moore 
 
 V. Newall 
 
 r. Quiitt-r 
 
 V. Reina 
 
 Browne v. Carr 
 
 V. Warner .. 
 
 Bruce v. Webb 
 Br^'dges v. Kilburne .. 
 
 V, Stepiiens . . 1 
 
 Buckland v. Hal! 
 Buckley V. Nightingale 
 B-jll V. Bodie .. 
 Bullen V. Ovey 
 Bullock V. Bullock 
 Bunbury v. Bunbury 
 Burges v. Lamb 
 Burke v. Vickars . . 
 Buries v. Popj)lewell 
 Burnett v. Burnett 
 Butler u. Mulvihill 
 Bush V. Croorabs . . 
 Bushby r, Munday 
 Butterworth i>. Robinson 
 Byne v. Potter 
 
 V. Vivian . . 
 
 Byrne v, Byrne 
 Byron v. Johnstone 
 
 Page 
 
 .. 219 
 
 16, 118,120, 
 
 Sup. 17 
 
 414 
 
 Sup. 92, 95 
 
 108, 109 
 
 27o 
 
 363 
 
 123 
 
 Suv. 34 
 
 .. " 4 
 
 Sup. 48,50 
 
 394, 424 
 
 73 
 
 386, 387 
 
 42 
 
 254 
 
 Sup. 89 
 
 .. 190 
 
 36, 144, 430 
 
 49 
 
 .. Sup. 18 
 
 .. 107 
 
 376,401 
 
 .. 106 
 
 96, 102 
 
 .. 152 
 
 347 
 
 116 
 
 Sup. 17 
 
 19, 20 
 
 106 
 
 .. 101 
 
 . . 205, 206 
 
 10 
 
 .. 10 
 
 195 
 
 319, Sup. 34 
 
 Cage V. Russell . . . . 82, 84 
 
 Caird v. Campbell ., ..424 
 
 Caldwell V. Baylis . . . . 172 
 
 Calvert c. Gason. . .. 157 
 
 Camden v. Morton . . . . 73 
 
 Campbell u. Houlditch .. 101 
 
 i'. Scott.. .. Sup.S6 
 
 Candler v. Partington. . .. 415 
 
 Cgnham v. Jones . . 229, 230 
 
 Capes V. Huttou . . . . 278 
 
 Carew V. Carew . . . . 150 
 
 Carnan v. Bowies 201, 202, 205, 206 
 Cary D. Longman .. .. 201 
 
 1;. Fadeu.. .. 201,202 
 
 Casamajor V. Strode. . .. 370 
 
 Page 
 Castellain v. Blumenthal 426, Sap. 101 
 Castendieck v. De Burg . . Sup. 72 
 Castlemain, Lord, v. Lord Craven 
 
 173, 174 
 Cawdor V. Lewis . . . . 35 
 
 Chalie D. Pickering .. .. 129 
 
 Chalk V. Wyatt .. .. 186 
 
 Charaberlayne I'. Dun)mer .. 145 
 Chaplin D. Cooper .. .. 405 
 
 Chappel V. Purday . . Sup. 33 
 
 Chedworth, Lord, t'. Edwards .. 267 
 Chcminant v. De la Cour .. 386 
 
 Cliolmondeley v. Clinton .. 268,370 
 Chitty t). Selwin .. .. 34 
 
 Christie v, Craig. . .. S3S 
 
 City of Bern v. Bank of England 331 
 City of London v. Pugh .. 153 
 
 Clapham v. White . . 425, 428, Sup. 
 
 101 
 Clarence Railway Company v. 
 Great North of England 
 Railway Company . .Sitp. 71, 78 
 Clark V. Cort . . . . Sup. 1 1 
 
 V. Dew 179 
 
 V. Freeman . • . . Sup. 35 
 
 n. Giraud .. .. 32 
 
 Clarkev. Earl of Ormond. . 103, 109, 
 111, 115, 117 
 
 V. Price. . . . 258, 259 
 
 137 
 
 . . 357 
 
 109 
 
 Clavering v. Clavering 
 Claughton v. Hadwell . . 
 Cleverley v. Cleverley 
 Coates V. Clarence Railway Com- 
 pany . 
 f. Coates .. 
 
 295 
 
 .. 369 
 
 13 
 
 .. 63 
 
 Sup. 40 
 
 ..329 
 
 144, 147, 148, 
 
 Sup. 22 
 
 .. 180 
 
 .. 421 
 
 23, 24, 25 
 
 ..136 
 
 222 
 
 367, 368 
 
 . . Sup. 62 
 
 9 
 
 Columbier or C'olombier v. Slim . . 12 
 Commissioners of Greenwich Hos- 
 pital v. Blackett .. Sap. 105 
 Connor v. Connor. . . . Sup. 27 
 
 Conolly u. Lord Ely . . .. 157 
 
 Cooke W.Clay worth, 19,20,21, Si/p. 3 
 
 V. Setree .. .. 12 
 
 r. Whalley .. .. 16l 
 
 Coope V. Tsvynam . . . . 7,8 
 
 Cock V. Richards . . 
 Cockerell v. Cholraeley 
 Cocks V. Purda^' . . 
 Codd V. Wooden 
 CoHin V. Coffin 
 
 Cofton V. Horner 
 Coglan V. Requeneau, 
 Cole V. Gibson 
 
 V. Peyson . . 
 
 Collard V. Alison 
 
 V. Cooper 
 
 Colman v. Morris . . 
 V. Sarel . .
 
 XXXIV 
 
 TAUI.K OP CAMKit. 
 
 C»r|Mir»iMi« 1,1 AiwuUtl *. Iluliar* 
 
 — - U«rrpwol ». MiHtU 
 
 Am/i 101 
 Cofjf r V.tt) . . 19 
 
 — I. V.'fiu.uili anu Norakb 
 
 ) (taiiv . .tef. 71, tS 
 
 <^««-. .. 4f« 
 
 ' xMlrM • • I 
 
 C'uudiiBv, l-nd, I. (judicluill 
 ('oiiri' Mil, IjumI. I. Waiil.. 
 
 (."... Ml I. (I ...i-ick .. 
 
 ( ■ .-. . I ■ ....1 Cfl 
 
 ( .. . t. \N.l, nl.. .. 
 
 (.11 (m.u.K. inn 
 
 (°r(i««lurtl v. Kitlirr .. .. 
 
 Crrai^ *. licavaii 
 
 1 
 . .S? ^ 
 
 . 3f7 
 i:>B 
 164 
 
 CrKkfurd v. Alciaiidrr 138, lot, 184 
 
 C'ruit I'. Day . . 
 
 Cfuabir I', liiokc 
 Cru»«kill c. y.vtiy 
 Cruttlr^ t, |lr»rilr_v 
 (.'ruwdcr V. 'liiiklrr. . 
 (.'rune t'. Uallard . . 
 Ciultwcll r. l.^e 
 ('uU I. Uruwii . . 
 C'u'lcv v. Nickliiig . . 
 
 6up. 3J, 54 
 
 .. 3-it 
 
 M 
 
 Sup, 41 
 
 •i16 
 
 . tiu, mx 
 
 .. 16 
 
 X54 
 
 .. 74 
 
 4<l 
 
 Cuulili I. Maiiclii'ttrraiid Itultull 
 
 Cunal Coitipaiiv • • • • 504 
 
 Curro r. Ho«\rr .. 404 
 
 Cuitit I-. Cun't . . ^"ii, \i4. Sup. 46 
 
 I. Lcakc . . 93 
 
 r. Marquikof UucLi. .t62, S40 
 
 r. I'cny .. .. S6, «6 
 
 I) 
 
 Dallv r. Calil>l«».'.. 
 
 ¥.VI 
 
 Dalnicr r. DailiMOod . . 
 
 .. 164 
 
 DaiiD t . Spurrier 
 
 38 
 
 D.iiuejr t. iWuwii 
 
 41.1, 414 
 
 D<t«liwood r. Hl\ihwajr 
 
 .. 68 
 
 DaTeii|>urt r. Davenport 
 
 . 3bO. Sup. 
 
 
 «9, Sit. 31 
 
 
 .. 41B 
 
 Sup 33 
 
 Datridtun r. Buliii 
 
 
 .70 
 
 Darics i. Leo. . 
 
 1H7 
 
 Datill r. Teacock . . 
 
 418 
 
 D«»i» 1. riou^ii 
 
 . «69 
 
 ,. D .Tis 
 
 39i 
 
 r. Leo 
 
 187, 368 
 
 U«ii*(. l'H.UI 149 
 
 ». \V.M M 
 
 U««*w«l t. i'uari .. .. Smp.9* 
 
 — — - I. rrintrfM •• 5** 
 
 l>«* t. Uaj t31 
 
 ». Mrrfj.. 144. 145 
 
 r. Hi^ .. 344. 4«l 
 
 — — aiui Alarliu (. (iuuldilt| . . itiA 
 
 Vl<>, 6Np. 39 
 flO 
 
 4.rfVI» .. 4€I9 
 
 t.1 
 
 dm . . 54 
 
 »4( .. .. Tl 
 
 r.i .. isr 
 
 1). t ; D'luii AMwiaaOc 
 
 < ... 34 
 
 I . M7 
 
 -li 
 I o8 
 7 
 .. IM 
 . B«, H3, 86 
 .. 4irt 
 374 
 
 .. tu 
 
 . . Smp. 36 
 
 Smp, 6t. 63 
 
 393 
 
 'J4 
 
 •'.'3 
 
 '.nj 
 
 i,rojduii 
 
 > .. 300 
 
 365, 370 
 
 337 
 
 6 
 
 Dr Snli» r. ('n.»Mi» 
 
 ijlc> 
 
 iMi..-.. ... .. 
 
 Dcoliurti r Wi 
 Dickeiit r. I>re 
 Dirlncbrii r. Cabbam 
 Dip|>rr r. Duraiil . . 
 Uitull t, twart 
 
 ■ 1. Ill (IiiioimI . . 
 
 Duo r. 1 
 Itailv. 
 l>t«oliUlc t. WaAu 
 Douclie V. i'errxtl 
 
 DoMTtl* I. I'owif 
 
 Duwiuliire, M. r. S«ii<)j».. 144, 14^, 
 146, 147 
 DoWMJii t. iliiidcakllc .. $96 
 
 DrcMM r. lliarkrr .. 1IO, 111 
 
 Druminond c. Pigou .. 70, 35f 
 
 Dniry r. Mo-.k ii, tS, t4 
 
 Duckwori'' I .. 351 
 
 Duke«>f I Neld .. 6ii^. 8 
 
 . . .>i>jtrU..S«p.33, 
 
 34 
 Duke of lluckinKlum v. Du«.Ikm 
 
 of liuikingliun 361 
 
 Duke of Hamilton r. Kjirl of 
 
 Macciet6cld .. ..361 
 
 Duke of QueeDtburj r. Shcb- 
 
 bear S09 
 
 Duke of St. .Mbui'a r. Skipoiili 
 
 Sup. fb 
 Duubar r. \Vil»oii 3
 
 TABLE OF CASES. 
 
 XXXV 
 
 Page 
 Dunean v. M'Almont . . 98, Sup. 14 
 Duiigey V. Angove . . 325, 327 
 
 Dunnage t). White. . .. 19 
 
 Durham and Sunderland Rail- 
 way Company D.Wawn 162, 290 
 Durstoii V. Sandjs . . . . y5 
 
 D^-er r. Kearsley .. 114,115,119 
 
 E. 
 
 Earl of Ciiesteifield v. Bond .. S49 
 Earl Cowper v. Baker .. 158,185 
 Earl of Granard v. Dunkiii . . 207 
 Earl of New burg 7). Wren .. 105 
 Earl of Miitown v. Stewart . . 13 
 Earl of Ripon v. Hobart . . 248, 249 
 Earl of Westraeath v. Countess 
 
 of Weslmeath . . 30, 31 
 Earnsbaw v. Thornliill . . 420, 428 
 Easlabrook y. Scott .. .. 21 
 East India Company v. Inter- 
 lopers 334 
 
 V. Kjnaston 
 
 Sup. 48 
 Eaton V. Lyon . . 80, 82, 83 
 
 Echlilfi;, Baldwin .. .. 252 
 
 Edgtcumbe v. Carpenter .. 37, 351 
 Edmunds V. Bird .. .. ]7(i 
 
 Edridge v. Edridge . . . . 336 
 
 Edwards t). Jihnson .. 393 
 
 V. Jones .. Sup, 102 
 
 y. I'he Grand Junction 
 
 Railway Company . . 298 
 
 • r. Jenkins .. .. 391 
 
 Eldcrton v. Lack . . . . Slip, 33 
 
 Electric Telegraph Company v. 
 
 Nott Sup. 103 
 
 Ellerton v, Tliiisk . . . . 406 
 
 Elliott V. Brown . . . . 282 
 
 Ellis V. Eail Grey. . .. 331 
 
 Ellison V. Bignolil . . . . 280 
 
 Elwortliy V. Bird . . . . SO 
 
 Emerton, v, .. 359 
 
 Errington v. Aynesley . . 78 
 
 Esdaile v. Lu Nauze . . . . 7 
 
 Eton College v. Great Western 
 
 Railway Company .. 300 
 
 Evans v. Reid. . .. .. 354 
 
 V. Richardson . . 30, 31 
 
 Evelyn v. Templar.. .. 341 
 
 Evitt V. Price . . .. .. 269 
 
 Ex parte Amyot . . . . Sup. 83 
 
 Bernasconi .. 312 
 
 Booth.. ,. .. 314 
 
 Burlton .. .. 315 
 
 Chevalier .. .. 312 
 
 ■ Clegg .. .. 311 
 
 Clarke .. .. 128 
 
 Ex parte Cutten . . 
 
 Davy . . 
 
 DiaJk 
 
 Elliott 
 
 Figes . . 307, 
 
 Fletcher 
 
 Glossop 
 
 Grant 
 
 Grove . . 
 
 Hall 
 
 Harding 
 
 Hinton 
 
 Hornby 
 
 — Lavender . . 
 
 Leigh.. 
 
 Marquis of Hertford 
 
 Meagham . . 
 
 Montgomery .. 
 
 Reilly ;. 
 
 Shaw . . . . 
 
 Vaughan 
 
 Warner 
 
 White 
 
 Wood 
 
 Eyre v. Everett 
 V. Bartrop 
 
 Page 
 307 
 306, 308 
 311 
 .. 314 
 308, 340 
 308, 313 
 . . 308 
 
 306. 307 
 .. 313 
 
 314 
 
 .. 307 
 
 67 
 
 . . 308 
 
 313 
 
 306, 308 
 
 ..Sup.M 
 
 67 
 
 .. 311 
 
 247 
 
 .. 307 
 
 90 
 
 .. 342 
 
 306. 308 
 . . 313 
 
 . 41,43 
 .. 39 
 
 Farlow V. Nelson . . . . 108 
 
 Farquharson D. Pitcher .. 329,422 
 Farrant v. Lovell . . 136, 137, 163, 164 
 
 V. OIniius .. ..79 
 
 Farrar v. Lewis . . . . 377 
 
 Farrow v. Vansiltart .. ..186 
 
 Fills V. Read .. .. l8l 
 
 Fereday v. Hordern . . . . 32 
 
 Ferrand v. Hamer . • 389, Sup. 92 
 Field 1-. Beaumont . . 383 
 
 Fielden v. Fielden 115, 119, Sup. 18 
 Fielding d. Capes . . . . 417 
 
 Fingal v. Blake . . 189, Sup. 31 
 
 Fisher z;. Baylcy .. 412,414 
 
 Fishmongers' Company v. East 
 
 India Company .. 246 
 
 Fitton I'. Macclesfield . . . . 343 
 
 Flamang's case .. .. 183 
 
 Flower V. Herbert . . 306, 307, 308 
 Folliott r. Ogden . . . . 59 
 
 Fooks V. Wiltshire Railway Com- 
 pany . . . . . . Sup. 69 
 
 Ford i». Compfon .. .. 360 
 
 Fordyce i;. Ford . . . . 54 
 
 Forrester v. Walker . . , . 209 
 
 Fosbrook i;. Woodcock .. Sup, 80 
 Forster 1;. Teward .. Sup. iOl 
 
 Fox V, Wright .. .. 16
 
 WWI 
 
 TAIILK OF CAHB*. 
 
 Kr«.trllrf r. Wrllrr 
 
 f " Ion 
 
 l«»7. 
 
 r 
 
 ». 
 
 w 
 
 ratrf 
 rl04l . 
 
 r. 
 
 Krowd r. l.aofriKc 
 Kulirr r. GibMMi 
 KuriiMal r. iSo^lr . 
 
 VIS 
 
 9 
 , M*t 
 IM 
 . Iff 
 '. 40.1. 
 
 4rf 
 
 4«J 
 
 .. t*A 
 
 1W 
 
 1v7. It9 
 
 .. .1t4 
 
 4^1 
 
 (J. 
 
 GbIc v. Liitilu . . . . A3 
 
 Ganiiii ». A»(»liii .. iW 
 
 (iardiirr r. .NI'C'uIcIickH .. Sup. 101 
 (larlicW I. IVar»an .. S68, 38< 
 
 (iar«tiii r. A*|>liii •• Sup. 'J 
 
 Uarili I'. CoUoii..ir»K, 1.19. 166, 167 
 
 Ciartliwailr r. Ri|>(>uit 
 Oc.irv r. Norton 
 iirr I . I'riltliard 
 Gibl>i r. Cole . . 
 Gib*4>n r. C'luljrcrt 
 
 .- V. C'oir . . 
 
 I r. Nicot .< 
 r- Sroiili 
 
 3"»'- 
 
 .. 4«y 
 . . s»p. 97 
 
 .. 175 
 .. Sup. 104 
 148. 185. 369 
 Gilr* 1-. NVilo.j .. l'.»9, «X» 
 
 (Jilli»cr r. Snapi;* .. 198, 068 
 
 Gilpin 1. I^d)' Soutlianiploii .. 110 
 Ginntl c. H.irnc . . Stip. 15 
 
 GlaM r. Marshall .. ^Sup. S 
 
 GI»»io)i r. Ung . . 93, 99 
 
 Glasacuti r. Governor and Cuiu- 
 
 pnnv oi Copper Miiirrt .. 4?<> 
 Gl4%»intl<'ii I. 1 lmailc» 
 (.ilcniiic I. Imri 
 Goatr I. Ff vrr 
 Goildaril r. ( . 
 
 ?a4 
 7.S 
 111 
 .. IH 
 . ''up 91 
 413 
 518 
 X64 
 1S6 
 .. 335 
 418. 414. 
 Sup. 99 
 Goodman r. D«- BcauToir . . Sup. 7t 
 
 r. Kine .. Sup 84, 86 
 
 I . Wliiicombr . . ?80 
 
 Goodwyn r. Spray 168 
 
 C...nlon r. Calrrrt .. 48.41 
 
 Ci..l.tii._- 1 Ml... 
 C,ol< !■ .rii I. .\1.-.h1> 
 G«'ii< lal I. ( li.«»«r 
 Gooiii'»<jn r. Gallatin 
 Goodliart r. Lo«»c 
 Guudingc r. \Voo»lliam 
 
 Gui« ». Glb«Mt 
 
 Grrat 
 1*^ 
 
 i'a(« 
 . . Smp. 3 
 . < i..ii,.,)t«ja |Uil«*v 
 
 . . Sup. :> 
 
 .. 156 
 
 IWrmittg' 
 
 170 
 
 iwl .. 58 
 
 Sup. 53 
 
 16 
 
 ! 5 
 
 10, ll,5vt 
 ^\ rtlrni lUiiwajr CoOi- 
 rr r. Cfippt Sup. B 
 
 [{ , , ., . i ;a- 
 
 r< Companjr 5mp. 64 
 
 G<r*n ■ ■ „ ■ • • • • "^ 
 
 r. Grc*n . . 56, Sup. 79 
 
 Gtprnlial|«li *. Manchrairr and 
 Hiruiingliaia Katl«a> Com- 
 paii V . . 893. 894. 898 
 
 Grr^ r. Uuke of Nuflliumbcriaud 
 
 168. 185 
 
 (.n.'l M r. \r. I , r . . 5|0 
 
 10 
 
 .216 
 
 Guri»ey «. l>^.i.^:ua<i 810 
 
 G«>ii>cll r. Uaiini«irr 183,185 
 
 II. 
 
 Hack r. Leonard 
 
 88. 84. 88 
 
 liait;h r. Taf^gar 
 
 .. Smp.t7 
 
 ilainrt r. Taylor .. 
 
 Smp. 31, 59 
 
 Hall 1. DariM-T 
 
 .. 411 
 
 r. Poller 
 
 83. 8* 
 
 Iblfurd I. Gillow 
 
 Sup. 14 
 
 Haly r. Good»un 
 
 333 
 
 Haroei r. Jainrt 
 
 .. 339 
 
 ll.imillun r. Wortrficid 
 
 188 
 
 llamniund i. Mntimirrll 
 
 . . 336, 370 
 
 Il4n>|>lun 1 . II 
 
 .. 16J 
 
 Ilat>c>K:k 1 . r 
 
 180 
 
 Hatikey 1. .M"''« 
 
 40«l 
 
 t. N't-rnon 
 
 (.8 
 
 Hannam r. South IjmLc 
 
 II. Wa. 
 
 Irrwoiki Con.; 
 
 90 
 
 tiannin^ton r. D<» 
 
 88, t3 
 
 }|an«on r. Gardener 
 
 184,186 
 
 Harborough (Lord) r. \V 
 
 irtnaby 
 
 
 Sup. 81 
 
 Harcouri t . Uam»bf>ltoin 
 
 .. 340, 416 
 
 Hardcattle r. Chni:. 
 
 108 
 
 ,. Shaft 
 
 <6,SS9 
 
 Hardv r. ^lailin 
 
 78
 
 TABLE OF CASES. 
 
 XXXVll 
 
 Hargreaves i'. Lancashire and 
 Preston Junciion Railway 
 
 Page 
 
 Company 
 Herman v. Jones . 
 Harnjer v. Playne 
 Harries v. Bryant 
 Harrison v. Cocketi 
 
 V. Dixon 
 
 V. Gurnej 
 
 f. Hogg 
 
 Harrow School v. Alderton 
 Hart V. Davis 
 Hartley v. Hobson 
 Hartwell V. Hartwell 
 Hartz V. Schrader 
 Harwood v. Tooke . , 
 Hawes v. James 
 Hawkes v. Tinnit . . 
 Hawkins v. Day 
 Hawkshaw v. Parkins 
 Hay ward v. Angel 
 
 V. Constable 
 
 V. Dimsdale 
 
 Hearn v. Tennant 
 Heath v. Unwin 
 
 Henry v. 
 
 Herring i'. Dean and Chapter of 
 
 St. Paul's 
 
 Hibbert v. Rolliston . . . . 93 
 
 Hicks u. Raincock .. .. 2'21 
 
 Higginson D. Kellv .. .. 67 
 
 Hill i;. Barclay ' .. 87, 88, 89 
 
 V. Buckfey . . . . 252 
 
 V, Reardon . . . . 331 
 
 V. Rimell 368 
 
 V. Thompson . . '222, Sup. 45 
 
 V. Turner . . . . 97 
 
 Hills i;. Croll .. .. Sup. 6'2 
 
 r. University of Oxford .. 221 
 
 Hiltoui;. Lord Glaiiville ..Sup.bQ, 85 
 
 Hime v. Dale 
 
 Hinde v, Fiddes 
 
 Hine v. Lart 
 
 Hippesle^' v. Spencer 
 
 Hirst V, Peirse . . 
 
 Hobson V. Trevor 
 
 Hodgson V. Dean 
 
 V. Murray 
 
 302 
 
 Sup. 43 
 
 22^2, 225 
 
 . . Sii 
 
 ..176, 367, 368 
 
 384 
 
 .. 101, 104 
 
 214 
 
 .. 148 
 
 88 
 
 .. 377 
 
 22 
 
 180, 281 
 
 l.S 
 
 .. 339 
 
 337 
 
 .. 179 
 
 359 
 
 .. 77 
 
 108 
 
 10 
 
 .. 399 
 
 Slip. 77 
 
 412 
 
 170 
 
 Hogg V. Kitby 
 Hogue V. Curtis 
 Holdilcli V. Mist 
 Hole V. Thomas 
 Hollaapfell v. Bakvr 
 Homan v. Moore 
 Home V. Benbow 
 - — - V. Wiitsun . . 
 Hood I'. Aston 
 Hoiiper V. Broderick 
 
 I9i 
 
 354, 355 
 
 Snp. 56 
 
 163, Sup. 23 
 
 .. 75 
 
 14 
 
 373, 426 
 
 3, 8, 9 
 
 204 
 
 .. 105 
 
 60, 61 
 
 162 
 
 73 
 
 .. 339 
 
 .. 175 
 
 389 
 
 280 
 
 266 
 
 Page 
 Hopkins i. Monk .. .. 163 
 
 Home V. Benbow . . . . 175 
 
 Hosklns t'. Feiitherstone .171, Sup. 25 
 Houlditch I). N'ias .. ..65 
 
 Howard v. Clitfe . . 387, Sup. 90 
 Howden, Lord, v. Simpson . . 303, 304 
 Howes u. Howes .. .. 415 
 
 Hudson V. Muddison .. Sup. 103 
 
 V. Baitram .. 275 
 
 Hughes V. Thomas . . Sup. 82, 99 
 
 — V. Trustees of Morden 
 
 College . . 337, 338 
 
 • — V. Ring . . . . 360 
 
 Hiiguenin r. Baseley .. .. 333 
 
 Huigh V. Jaggar . . . . Sup. 27 
 
 Hulme I'. Coles . . Sup. 6 
 
 Humphreys u. Harrison .. 163 
 
 Hunter v. Nockhols , . Sup. 27 
 Hyde t). Warren .. .. 419 
 
 Hylton u. Morgan .. .. 319 
 
 L 
 
 Ibbetsoii V. Booth .. 384, Sup. 89 
 
 lllingworth v. Manchester and 
 
 Leeds Railway Company Sup.70 
 
 Innocent v. North Midland Rail- 
 way Company . . 294 
 
 Isaac u. Hungpage .. 351,430 
 
 J. 
 
 Jack man v. Mitchell 
 Jackson v. Bernard 
 
 I'. Cater 
 
 V. Leaf . . 
 
 ■ t> Sedgwick 
 V. Stanhope 
 
 10 
 
 .. 159 
 
 190, 369 
 
 103, 105 
 
 276 
 
 Sup. 9 
 
 Jalabert v. Uuke of Cliandos 63 
 
 James v. Biou . . 
 
 V. Chandler 
 
 I'. Downs 
 
 Jarvis v. Chandler 
 Jee V. 'iluirlow 
 
 ..422 
 
 97 
 
 391, 392, 399 
 
 . . 97 
 
 30 
 
 Jetterson v. Bishop of Durham. . 170, 
 
 171 
 Jervais i\ Edwards . . Sup. 62 
 
 Jervis v. White .. .. 2,8 
 
 Jesus College v. Bloom 165, 166 
 
 Jew V. Wood . . . . 327 
 
 Johnson v. Goldswain . . . . 156 
 
 V. Medlicot. 19, 20, Sup. 3 
 
 Jones V. . . , . 378 
 
 o. Basset t . . , . 354 
 
 I'. Brain , . Sup. 17 
 
 1. Claiiglitoii .. 179
 
 XXXVIII 
 
 TAnLR or cAsn. 
 
 I'a^e 
 
 lull,, , (••*'«« «|r| Hio 
 
 .. Ml 1 
 
 1 l^ifan », li<M»«n 
 
 
 \Vr«l«ni 
 
 Hailwa* 
 
 MafUi 
 
 : 
 
 ». Joor* . . 1 10, 1 
 
 IBV 
 
 
 I9« 
 
 
 113 
 
 i(« .. 
 
 ru», gO« 
 
 
 lo. n, i» 
 
 
 4JU 
 
 i.T.^I r 
 
 JuM-|>li ». Uoublc«U^ . . 
 
 
 Ix»k-' > lin.rU . . 
 
 I"*l 
 
 4t' 
 
 !.«« t. Ixacklxrl 
 
 
 
 
 •. iU«r«MCrafl 
 
 ...J I 
 
 
 
 *. I*afk MO, III, lit 
 
 ,116, III 
 
 K. 
 
 
 •.Miurr 
 
 S07. ffM 
 
 
 
 Ix' 
 
 73 
 
 Kuv ^. MartUII 
 
 tit, trt 
 
 l>r 
 
 S4S 
 
 k<^c r. ('uiihi(liain . 
 
 .. ISO 
 
 U -.,1 ,. 
 
 i'U, 40i 
 
 Krai r. Allrii 
 
 ff.i 
 
 Ix. 
 
 1f7|,f7t 
 
 KcikUc I. Kraii . . 1" 
 
 ^ ,. 61 
 
 Uv, . iv...... 
 
 Al 
 
 Krui)> 1 . Ixiiitloii ti 
 
 
 Lea it r. Fullarton 
 
 f04, t05 
 
 Uailnn^- 
 
 - . , 7B 
 
 — — r. Lancdon 
 
 .. t54 
 
 Krmpr V. Aniill 
 
 A7 
 
 ■ r. Mur^an 
 
 te^. 93 
 
 
 .. 106 , 
 101 
 
 
 .Sup. lOO 
 
 KeiuirH^- r. K. C«»»ilit 
 
 Uv 
 
 Kruiiy r. HaiiirMull 
 
 4X1. 41.S 
 
 Li. 
 
 
 Knil t'. I'll kn in,;. . 1 i j 
 
 I, 116, Sup.ro 
 
 l.i ■■: „ ,. 
 
 <-o 
 
 Kriiwurlhy ». .Accuiu.r 
 
 548 
 
 ■> • • 
 
 4«3 
 
 Krr,.. k . |U...,b_v 
 
 .. lOll 
 
 L 
 
 .. 10 
 
 K< ruw 
 
 «47 
 
 Lard r. MmmieifliUia 
 
 115. IXl 
 
 Krr , ■•',.«. 
 
 4X8, t.1« 
 
 
 Smp.tS 
 
 Kiliuufc^ I. L 
 
 r . . « J9 
 
 Uojdr. CUrk .. 
 
 "^-p. « 
 
 Kiiiilx'rlrv r ' 
 
 .;, .s-p. rti 
 
 r. Collel 
 
 M 
 
 Kin 
 
 1 • ', .■>'.>a, i'."'.' 
 
 
 .. 36«> 
 
 Ku 
 
 1 ii<. 
 
 
 Sip. I04 
 
 Kh.. ,. .. 
 
 .. I?7 
 
 . 1. -^ • . 
 
 181 
 
 
 16 
 
 L . Kai 
 
 ilaajr 
 
 
 Sup. XI 
 
 ■ ■ ,«-r ., 
 
 . Smp.U 
 
 V. Turner 
 
 390 
 
 |jti.)iii>4.. 1. Wiutircttcr .. 
 
 *0I, »03 
 
 Kiii);liaiu r. Lrr 
 
 Sup. US. 16 
 
 I^MiMlale (I^rd) t. Cuntrn 
 
 .. 184. 
 
 
 .. .I.Sl 
 
 
 Smp. St 
 
 Kiikroan r. liunnor 
 
 . . Snp. 'J4 
 
 _ t laal^^.l.l — 
 
 .. Its 
 
 
 Kirkpalrick i. Drnitrll 
 
 .. M? 
 
 l^inli r. Hague 
 
 Sup.tS 
 
 Kni(:ht r. MumIiv 
 
 .. 169. 171 
 
 Lovai V. Lard Ranelagli 
 
 9t 
 
 Kiioti i>. Morgan 
 
 XSl 
 
 Uvcll*. II..'». . 
 
 .. « 
 
 K^natlon r. i-^«l India 
 
 Coro|tanv 
 
 Lo«c *. ' 
 
 54S 
 
 
 «••>. 48 
 
 r. 1 
 
 79 
 
 
 
 I^oiidrt t . 1 .i_\ !■ r 
 
 310 
 
 L, 
 
 
 Lo« liter r. Slamper 
 
 184 
 
 
 
 Lii^'.- . ! . 
 
 .. 418 
 
 Lar) I. Hunirb^ 
 
 41^, i-p 98 
 
 Lk ^' 
 
 ■ r. B.i. 9A 
 
 I.,an)lrc r. iiainiian 
 
 .. 44 
 
 Lu, 
 
 168 
 
 Lane V. Barton 
 
 S«/>.8t, 100 
 
 
 
 — — B. Williams 
 
 .. LSI 
 
 M. 
 
 
 r. Nf«diga(e .. 1 
 
 «.'. 
 
 
 
 
 
 Mather r. Foundliog UoapiUl .. 9t 
 
 Lan^ton r. BovUlon 
 
 .•I 1, .>i.T 
 
 M'Crra r. Hold««onh .. 
 
 Sup. S9 
 
 r. Hurtoii 
 
 . . Sup. 76 
 
 M'Faddrii t . Jriikint 
 
 Smp. 8 
 
 Lannoy r Duke of Atli 
 
 ,1 61 
 
 M'Farianc t. Pric- 
 
 .. tts 
 
 Lapcole c. Ncwporlc 
 
 337 
 
 U'Crcgor r. Conjngham . . 
 
 Sup. 100
 
 TABLE OF CASES. 
 
 XX XIX 
 
 P.ge 
 '^00 
 
 Sup. 
 
 Mackliii V. Richardson . 
 
 Macnaugliten v. Boeliin 
 
 M'Nuiiiara v. Arthur . 
 
 Miicnaniara v. Macgiiire 
 
 JMadeii v. Vevers . . 
 
 M'Nei) V. Garrett 
 
 Maitlaiid II. Irving . . 
 
 ]\Jukrcth V. Nicholson 
 
 Mann v. Stephens 
 
 Manser i>, Jeiiner . . 
 
 JMansfield v. Shaw 
 
 Rlanton v. iNJanton . . 
 
 JMorasco V. Boilou 
 
 Rliiikliam (Lad^) v. Dickenson. .391 
 
 IVJarqiiis of Laiisdo«ne v. Rlar- 
 
 chioness of Lansdinvne . . 167, 173 
 
 361 
 100 
 104 
 406 
 
 . Sup. 3 
 
 367 
 
 .S'»/). 60 
 
 Sup. 104 
 
 .. 367 
 
 Marsack v. Baily 
 
 V. Farlow , . 
 
 V. Reeves 
 
 IMursiiall V. Colman . , 
 Martin i'. Martin . . 
 
 V. Mortlock 
 
 V. Nutkin 
 
 V. Wright .. 
 
 Martinius v. Heltneth 
 Marlyn v. Just 
 Master of Clare Hall i 
 
 . . 402 
 
 362 
 
 .. 15 
 
 iiSl, Sup. 68 
 
 108, 109, 112 
 
 387 
 
 .. 251 
 
 215 
 
 .. 3'26 
 
 3'J6 
 
 , Harding 
 
 Sup, 5, 74 
 
 W6, 390 
 
 Sup. 75 
 
 Mason V. Murray 
 Rlaslerman v. Lewin 
 Matthewson v. Stotkdale .. 201, 203 
 Mawnian i'. Tegg . . 195, 196, 203, 
 204, Sup. 33 
 Mawson I). Stock .. .. 21 
 
 May D. Hook .. .. 127,129 
 
 ]\Jayhe\v 11. Cricketl .. .. 41 
 
 Mayne y. Hociiin .. 393,395 
 
 Mavor of King's l.ynn v. Peni- 
 
 ~ berton . . . . . . 'i(J9 
 
 of London v. Hedgei- . . 159 
 
 and Coniiiionalty of the 
 
 City of London v. liolt .. 365 
 
 Meaiis v. Mealis .. .. 71 
 
 Mellisli V. Mellish . . . . 270 
 
 Mcli-jr i;. Cresswell 386, 387, Sup.90 
 ]\1 e re i t ?;. Coster .. .. 411 
 
 Meslaer j;. Gillespie .. .. 93 
 
 Meux II. Mallby . . . . 57 
 
 ©.Smith .. .. .. 316 
 
 Mexborough ( Lord) v. Bower Sup. 65 
 Middleton f. Mlddleton .. 330 
 
 Millar v. Taylor . . 2'JO, 221 
 
 Milligan t. Miiciiell .. 264,266 
 Millinglon v. Fox .. 232, Sup. 35, 55 
 IMills V. Cobby .. 401, 404 
 
 Mills V. .. .. 125 
 
 Mllner D. Goolden .. ..65 
 
 Wiiishaw y. Jordan .• .. 10 
 
 Page 
 Minshaw ti. Mills .. .. 125 
 
 RJitchell V. Davis .. . . 421 
 
 !). Dors .. .. 158,184 
 
 Mocher i;. Reed .. 104,107 
 
 Mogg D. Mogg .. .. IS-?, 370 
 
 Molineux v. Luard . . . . 416 
 
 Montagu 11. Hill .. .. 355,405 
 
 Montefiori v. ftlontefiori .. 44 
 
 Moore y. Kelly .. .. 192 
 
 v. Usher .. ,. 382 
 
 Morgan v. Knott . . . . 231 
 
 V. Goode . . . . 425 
 
 V. Rhodes .. .. 50 
 
 Morgan i'. Seaward . . Sup. 47 
 
 Morley v. Thompson .. 322 
 
 Morrice v. Bank of England . . 108 
 Morris ;;. Colman . . . . 259 
 
 V. Day . . . . Sup. 1 1 
 
 V. Ke'lly . . 192, 368 
 
 V. Lord Berkeley .. 246 
 
 «. M'Culloc .. 22,23 
 
 V. Morris . . 156, 407, Sup. 21 
 
 Morrison u. Arbuihnot .. 46 
 
 Mortimer j;. Cottrell .. .. 182 
 
 ISlost's V. Lewis . . . . 3:i8 
 
 Motley t;. Doivnman .. .. 233 
 
 IMouchct V. Great Western Kail- 
 way Coujpany .. •• 291 
 Muggeridge c. Sluwnian .. Sup. H2 
 Rlunnings v. Adanison. .385, Sup. 89 
 Murray y. Benbow .. .. 195 
 My hie v. Dickinson . . 256 
 
 N. 
 
 Nanny t). Vaughan .. ..419 
 
 Naylor D. Christie .. .. 353 
 
 y. Tay lor ., ..421 
 
 V. Wellington . . 432 
 
 Neale ti. Wudeson . . . . 350 
 
 Neilson y. Thompson .. Sup. 45 
 Nelthorpe ?i. T,aw .. 377,391 
 
 Nelson I'. Oldfield .. ..100 
 
 Neville r. Wilkinson .. 45,46 
 
 Newberry II. James .. 229,230 
 Newdigate ti. Newdigate .. 147 
 Newell V. 'I'ownsend . . 358 
 
 Newman 'J. Franco .. ..4 
 
 V. Milner . . . . 6 
 
 V. Ring .. .. Sup, 95 
 
 Newmarch v. Brandling . . 273 
 
 New iiliam ji. Graves .. ..93 
 
 Newton V. Cowie ,. 213, 214 
 
 y. Ricketts .. Sup. '27 
 
 Nicol 1). Goodall .. .. 131 
 
 y. Stockdale .. .. 211 
 
 Nichols V. Kearsley . . 365
 
 xl 
 
 Ttni.K op oA*fai. 
 
 Ntcb»tU •. CUJic 
 t . Rur 
 
 N 
 
 Nm 
 
 N..! 
 
 M...,-, 
 
 Itl. Its 
 
 
 V 
 
 •k' 
 
 «iul U..ulf'ofl|. 
 
 ■iu|iUiii H 
 
 No«tlwu|r t. Dakr .. .. Bfl.BT 
 
 NofllMTt t. I'raic* 319 
 
 Nunuti'r. WuimI ..91 
 
 Norway r. Ru«c .. .. IS6, IM 
 
 O. 
 
 O'Hrirn i. D'Hrirn .. 144 
 
 O'Coiiuur c. .S(Mi|;hi. .74. Smp, 10. IS 
 O'DuiiorlU. O'Doiinrll .. S.S7 
 
 OMfirld r. Cubbcll . . Smp. 9, 15, BY 
 
 Oiuluw r. .. .. l.>6 
 
 Ooi I. While Smp. 101 
 
 Oduond (Lord) t Kiimertlrjr . . 175, 
 174. 176, Sup.fS. ?6 
 Orrrrjr (Ix>nl) r. Nr«U»ii . . 183 
 Utbbrnc r. L'-«prr ..411 
 
 Parkiiigtun r. FackinglMi 144 
 
 Pa^jr ai>d olhcn r. To»«n»rnd . . '.'l.i 
 I'jikrr r. Dun Natigaiion Cotii* 
 
 panjr .. Smp. 79 
 
 Palin I. (iaibcrcolc .. .Sup. .17 
 
 Paliurr i . Nraac 46 
 
 Parirnlc i. lirniuuiii . . Sup. 9.S 
 Parncll r. Nr<kbi(t .. .. 36i 
 
 Pan ». TipcUd^ .. .. 107 
 
 Parruli t. Palnirr 166. 168. 169. 190 
 
 Parlrrichc r. PowlrU 
 
 17?. 174 
 
 Parliriftoi) t. iioulh 
 
 404. 40»i 
 
 1. iiubKXI 
 
 37> 
 
 Pjrtridgr r. Cuiiirniii* 
 
 S«;>.88 
 
 Pauli 1 . Vuii Mrl'c 
 
 . . .Itb 
 
 Patlon r. I>ougU»» .. l(i.» 
 
 . 108, 109. 
 
 
 tiu 
 
 Pc«cock r. H«aii» 
 
 16 
 
 r. Peacock 
 
 ■iHI 
 
 Pcarcc t. Pijicr 
 
 180 
 
 Pcchrl r. Ko«lcr .. 
 
 iW 
 
 Pc^l , . . . 
 
 19 
 
 Pcin 1 . Pcirt 
 
 141 
 
 Pelliani r. Dui Iitm ot Nc«»ca»llr 3.1* 
 
 i'cU ». Stwptt€u* 
 
 • . Walkrr 
 
 lot 
 
 i»7 
 ISO 
 
 II \ 
 
 p.:yt. 
 
 . Smp,C 
 
 ••> 
 
 Pc(/v ( l,/>r<t ) r. lUMrra (.o«n> 
 
 S«7 
 
 Ka.l. 
 
 »M,Smp. 71 
 p. . 4J6 
 
 V 411 
 
 Pi ,.. .. .'. 1» 
 
 Ptrhrnn( I. HaiiKNt .. .. 990 
 
 PKkfurd r. OranO JuacUoo lUil- 
 
 tiajr t'o»nt»ny ■ ■ Sap. 3 1 
 
 Pid.lM.f » Mo-r ♦1*. iiiji. ii 
 
 105 
 .1*4 
 186 
 .. 157 
 53 
 3*0 
 .. 416 
 
 too 
 
 193,368 
 . . «5. «6, n 
 168 
 am. itritlol, 
 iclioii ItaiU 
 
 . . •97 
 
 i . .,..■■.. 
 
 P 
 
 p. .. .. 
 
 *. i kmHuy crofl 
 
 Piiihnto r. Poflcf 
 Piniuxk t. Ilij*^ 
 Plall t. Hulloii 
 Plv ■ - - - 
 
 P 
 P- 
 
 Soulbjr 
 Graham 
 
 Pbrtrr *. Clarke 
 Poll r. (jalliiii . . 
 Puller r. Chapman 
 Poll* r. P.ulirr 
 
 r. P..lkr . . 
 
 Puorll r. I^»uJrllr 
 
 I. KulleU 
 
 X. Uojd 
 
 r. ThoiuAt 
 
 Puwff r. Walker . 
 Prall r. Arclicr 
 
 r. Umi 
 
 Prvund •. I'omer 
 Price t. AkhcUm 
 
 V. Evsot . . 
 
 r. Williarnt 
 
 Pringic Hartlr\ 
 
 .356. ^r.i 
 
 967 
 
 .. 106 
 
 181,365 
 
 36« 
 
 .. 4tl 
 
 397 
 
 398, 399 
 
 M 
 
 . . Smp. 4. 31 
 
 19« 
 
 .»90. 394 
 
 155 
 
 . . StO 
 
 51 
 
 116. Sa^. 19, ^O 
 
 4?7 
 
 6»
 
 TABLE OF CASES. 
 
 xli 
 
 Protheroe v. Forniaii 
 Piilteney v. Slieltoii 
 
 I'. Warren 
 
 Pulvertofi V. Pulvertoft 
 
 Q. 
 
 Quarrier v. Colston 
 
 Page 
 
 . . 357 
 
 15 4-, 155 
 
 315 
 
 .. 341 
 
 Sup 2 
 
 R. 
 
 Randall v. Coiiinicrciai Railway 
 
 Company . . 
 r. Mum ford 
 
 Rankin v, Harewood 
 V. Huskisson 
 
 68 
 423 
 Sup. 16 
 .. 175,261 
 Sup. 16 
 .. 231 
 . . 350, 422 
 398 
 4 
 5V/). 11, 12, 13 
 . . 37 
 365 
 . . 1 08 
 313 
 Sup. 84 
 131, 360 
 279 
 179 
 .. 44 
 Sup. 8 1 
 100, 360 
 390 
 
 Ranken v. Harwood 
 Ransome v. Benllial 
 Rashieigli v. Pnillcr 
 Rattray v. Bisliop 
 Rawdon v. Sliadweii 
 Rawson v, Samuel . 
 Ray V. Ray 
 Re Creagli . . 
 
 Re Dillon, Ex parte Bellot 
 Re Ings 
 
 Re Marquis of Hertford . . 
 Re Weaver . . 130 
 
 Read or Reid r. Howers 
 
 V. Blunt 
 
 Redman v. Redman 
 Rcece v. Humble . . 
 Reed v. Bowyer 
 Rees V. Edwards 
 
 V. Berrington . . . . 39 
 
 Reeve v. Parkins .. .. 180 
 
 Rew V. Dixon . . . . 417 
 
 Reilly V. Jones . . . . 79 
 
 Reynolds V. Nelson .. 72 
 
 V. Pitt .. ..84,86 
 
 Richards v. Noble .. 168 
 
 Ridgway v. Roberts . . Sup. 79 
 
 Rigby 1). Strangways .. Sup. 15 
 Ringer v. Blake . . . . 320 
 
 River Dun Navigation Company 
 V, North Midland Railway 
 Company . . . . 288 
 
 Roberts D. Roberts .. 45,162 
 
 Robertson n. Skelton .. Swp. 81 
 
 Robinson v. Lytton .. 136, 137, 163 
 
 V. Lord Byron. . 175, 184, 
 
 260, 407 
 
 f. Lord Wharton .. 365 
 
 V. Walcott .. ..417 
 
 Rocke L. Matthews .. Sup. 105 
 Redenhurst y. Tadman .. 380 
 
 Page 
 
 Rodgers V. Nowill .. Sup. 44 
 
 V. Powell .. .. Sup. 44 
 
 Rogers r. Rogers .. 176 
 
 Roffe V. Harris .. .. 81 
 
 r. Paterson .. 77,153 
 
 D. Rolfe .. .. 5i(/>. 61 
 
 Roper t). Williams .. .. 276 
 
 Ross V. Shearer . . . . 337 
 
 Roswell's case .. .. 136 
 
 Rdtherham D. Fanshaw. . .. 100 
 
 Rouse D.Jones .. .. Sup. 19 
 
 Roveray v. Grayson .. 360 
 
 Rowe v. Jarrold . . . . 348, 349 
 
 0. Wood . . . . 357 
 
 RoA'les V. Rowles . . 80 
 
 Roworth I'. Wilks .. .. 214 
 
 Rundell w. Murray .. 19.3 
 
 Rush V. Higgs . . . . 108 
 
 Russel r. Coggins . . 276 
 
 — V. Smithies . . . . 164 
 
 Russell V. Smith . . Sup. 40 
 
 V. Cowley . . . . Sup. 47 
 
 Rutherford u. Douglas .. 177 
 
 Ryan v. Mac Math .. . . 9 
 
 Ryder v. lU-ntliani . 240, 429 
 
 S. 
 
 St. John's College i-. Carter 
 Salmon y Randall 
 Sampson v. Smith . . 
 Samuel v, Howarth 
 Sanester r. Foster. . 
 Sanders v. Pope 
 
 V. Smith . . 
 
 Savory v. Dyer 
 Say V. Barwick 
 Sayer v. Pierce 
 Schneider v. Lizardi 
 Schoole V. Sal! 
 Scotson V, Gaury 
 Scott V. Bechcr 
 
 V. Mackintosh 
 
 Shaw V. Hill 
 
 Stribblchill or Scribhiehill 
 
 400 
 
 .. 289 
 
 . . 240, 245 
 
 39,41 
 
 . Swp. 43 
 
 82, 84, 88 
 
 197 
 
 346, 368 
 
 19 
 
 .. 166 
 
 Sup. 101 
 
 68 
 
 Sup. 87, 89 
 
 375, 398 
 
 396 
 
 Sup. 65 
 
 Brett 
 
 23, 24 
 
 316 
 
 33 
 
 324 
 
 230 
 
 Sup. 37 
 
 401 
 
 Seager v. Smith 
 Searle v. Lord Carpenter 
 Sedgwick v. Clegg 
 Sedon v. Senate 
 Seeley v. Fisher 
 Segewick i'. Redman 
 Semplc y. London and Birming- 
 ham Railway Company • . 238, 
 244, 293, 298, 373 
 Shannon v. Bradstreet . . 56 
 
 Sharpe I'. Ashton .. 393,394 
 
 Sliarpley r. Perring .. 4i^, Sup. 9Q
 
 xlu 
 
 TAItLi: OF CASE«. 
 
 Par 
 
 8h«» t. Mill Smp.66 
 
 ShrlU ». N«tii n 
 
 ' i ». I)ikIm'»« t>( |iuckUij> 
 
 V6 
 
 Si 
 
 Si 
 
 •nl.. 
 
 . . *JU, 4.%t 
 
 SI. 
 
 f . . 
 
 .. Smr.4 
 
 Sio.Il.i 
 
 '^ ! Ii«lilrii« 
 
 III'.' 
 
 Simeon 
 
 1 . I>««|rt 
 
 
 Sin 
 
 ' Ti| llu«ll<a 
 
 . to. li. F- . 
 
 - 
 
 krrt .. 
 
 H> 
 
 hi,. 
 
 1 ' 
 
 MI7.«M^.<AI 
 
 Sirilrtir 
 
 .Jr 1' 
 
 3«0 
 
 Skrilun 
 
 I. Sk. 
 
 ,. iMi 
 
 Ski|> 1. 
 
 Ilara-wuuti 
 
 3f9 
 
 Sluniaii 
 
 1. W-llcr 
 
 77 
 
 Sr:->' 
 
 ' ♦ lioiii 
 
 '■ " 
 
 Si 
 
 .rll .. 
 
 
 - 
 
 '"g •• 
 
 .. 
 
 
 ( urkr .. 
 
 Mts 
 
 — - r. 
 
 Clc<i>by 
 
 4«8, 431 
 
 ti. 
 
 Cnllver .. I8»i, 
 
 tBA. 6iip SI 
 
 - f. Vjtr\ of Kiringliani . . S7« 
 ' p. Fruniuni .. V.>" ' 
 
 — — r. Ciarland 
 
 r. llaTlMcll 
 
 r. Jc)C» imp. t>H 
 
 • r. Kcinp»on.. .. KW 
 
 r. Smiili . . SSkt, 564 
 
 Smjtii r. (iiilTiii Sup. .1 
 
 Sni^tlir I. SniUlic .. I4'.», 430 
 
 Solljr I. .M.M.rr .. 40 
 
 Soulli-Kjsicrii riait<«ajCuiD(Mity 
 
 *. BJariiii .. .Sup. 1 1, 1< 
 
 Souihcy p. Slirrxood .. |f»5 
 
 Spalding r. Krrlry .. .177 
 
 Sprncrr i. Ivoiidun and l'innin(;- 
 
 liani liailwa^- C'otnpanv .. - P. 
 'lb. 
 Spillcr r. S|>illcr .. -iSi, ^ , 
 Spuncit p. Spiller 
 Spoititwuode f. Clark ^r 
 
 Squire r. Campbell .. .. j-^l 
 
 Sunlrv I'. Itond . . Sup. 98 
 
 r. (.'hcsirr ai;<l Itirkcn- 
 
 lirad Hailwitv ('oni(Minjr 
 
 Slansbur^ r. Ark w right 
 StarisfirlJ I. Ilabcrgham 
 Slathani r. Iluglir<i 
 Stead p. Clay 
 Sledman p. Webb 
 StefF r .Andrews 
 Sleplient i . Cini 
 Stcphrnton r. (iardi.t . 
 Stevens r. Kraling 
 Steveiunn r. .Anderton 
 Sicnnrt r. Alison 
 
 «99 
 319 
 I SB, I.S9 
 "91, 393 
 33i 
 »70 
 
 ^i*p. 4.', 7" 
 . .ii5. 5S6 
 
 SlacLi ' 
 
 • .'. 
 
 • K.I ] • >ltk lUMO^ I ' 
 
 paii> A*f. 71 
 
 ,. .1- .' u .1-... ,. Smf,IUi 
 
 .al IUil«av 
 
 f9I 
 .. 404 
 
 S S«n|M-l«W«M« .. too 
 
 Slia'hmorr r. Ilowr*.. I 
 
 I • " 
 
 V: S.f.. I j 
 
 ^1 it0.!>mp.4i 
 
 5*5 
 
 .. 1I7..S>;>. li 
 
 ' -1 »<« 
 
 . . »ia 
 
 up. 43 
 
 .•jwcei I. C« ) 7, yi I 
 
 r .Ma„ tOi 
 
 V. .Slia» I ST 
 
 SvnHtixl* t. GibtO' tX 
 
 T. 
 
 I'alf Kailwav Cunpsnj r. Niftoa 
 
 Sup. ll.lt 
 Tsftcarl ». Hewlett.. 
 
 I 
 I . 
 
 I.. 
 
 lamwurth t i 
 laiificld »'. Ir 
 Tajkior V. Allni 
 — — c. Datiea 
 . I ■ ■ 
 
 4t5 
 
 169 
 
 ..f.6i 
 
 t 
 
 . 144 
 
 .172 
 
 176 
 
 7'. 65 
 
 3«3 
 
 88 
 
 .U 
 
 71, 4?8 
 
 108 
 
 Sup. BS 
 
 — I . W .V 
 
 I '^gue I. Ri< 
 
 Icesdale r. 'I'lkiitUcii 
 
 TeiDpIr r. IJank »>f Fnf^Und . . Xvh, 5o.S 
 
 Term* est r, F 115, II&, IVO 
 
 Tharkabcrr,\ . . 109 
 
 riiomat t . Au ...,.,. , . Canicr- 
 
 burj . . . . . . 80 
 
 r. Oaklj .. .. J83 
 
 1 bomp*on r. U> ram, 564, 5&6, ^"P- R9 
 
 — r. Oearr ■ • .St<p. 106 
 
 r.(.i. ' . 90 
 
 r. 1^-.. .. 9« 
 
 r. i'» rv .. ..93 
 
 t. .*«ci.iiii .. .. 94 
 
 r. Sianiiopc .. 807 
 
 - '•vmons . . 214
 
 TABLE OF CASES. 
 
 xliii 
 
 
 Page 
 
 Thorp V, Goodall 
 
 .. 306 
 
 Thorpe v. Hughes . . 356, 
 
 378, 380, 
 
 
 Sup. 88 
 
 Thrale v. Ross 
 
 9, 22 
 
 TinkD.Rundle 
 
 Sup. 20 
 
 Todd V. Dismor . . 
 
 419 
 
 Toller V. Carteret 
 
 101 
 
 Tonnins v. Prout 
 
 340 
 
 Tonson v. Walker 
 
 200, 209 
 
 Took V. Hartley 
 
 68 
 
 Townley v. Dean . . 
 
 Slip. 75 
 
 Travers v. Lord Stafford 
 
 391 
 
 Tresham v, Gerrard . . 
 
 . . loO 
 
 Tulk V. Moxliay 
 
 Sup. 60 
 
 Turkington v. Kearnan 
 
 153 
 
 Turner v. Buck . . 
 
 173 
 
 nr..;~u*. *^x 
 
 3, Sup. 60 
 
 
 Turton v. Benson 
 
 23,44 
 
 Twort V. Twort 
 
 163 
 
 u. 
 
 15 
 
 Ullock V. Barber 
 
 Union Railway Compiiny v. 
 Bolton and Preston Rail- 
 way Company .. Sup. ^8 
 
 Universities of Oxford and Cam- 
 bridge z). Richardson .. 221 
 
 Usborn D, Usborn .. .. 1(33 
 
 Uvcdale V. Uvedale .. 163 
 
 V. 
 
 Vane i;. Lord Barnard .. 143 
 Vansandau v. Rose . . . . 398 
 
 Vauxhaii Bridge Company v. 
 
 Earl Spencer . . . . 298 
 
 Vernon v. Thellusson . . Sup. 17 
 Vicary v. VVidger . , 324, 382 
 
 Viner D. Vaughan .. 137,139 
 
 Vipan V. Mortlock 391, 392, 417, 428 
 
 W. 
 
 Wadraan u. Calcraft .. .. 82 
 
 Wafer v. Mocato . . . . 82, 86 
 
 Walbanke n. Sparkes. . .. 324 
 
 Walcoti), Walker .. .. 194 
 
 Walker v. Fletcher . . 184, Sup. 52 
 
 V. O'Suilivan . . 396 
 
 V. Wylde , . . , 356 
 
 Wallace v. Campbell . . Sup. 27 
 
 Walwyn r. Coutts .. .. 255 
 
 Walton V. Johnson . . 108, Sup. 85 
 Ward V. Key . . . . Sup. 44 
 
 V. Feriam .. .. 123 
 
 • V. Society of Attornies, Sup. 71 
 
 Page 
 Ware v. Grand Junction Water- 
 works Company .. 304, 5(i/). 71 
 
 V. Horwood . . . . 11 
 
 Warburton v. London and 
 Blaekwall Railway Com- 
 pany . . 389, 390, Sup. 92 
 Warrington v. Wheatstone 52a, 382 
 
 331 
 
 Sup. 4' 
 
 281 
 
 177, 178 
 
 75 
 
 '296 
 209 
 
 291 
 283 
 104 
 344 
 182 
 
 Warter v. Yorke 
 Watercourse case 
 Waters v. Taylor . . 
 Watkins v. Brent 
 Watilewortli v. Pitcher 
 Weale v. West Middlesex Water- 
 works . . 
 Webb V. Rose. . 
 
 V. INIanchesterand Leeds 
 
 Railway Company 
 Webster v. Webster 
 Wedderburn v. Wedderburn . . 
 Welby V. Duke of Ilutland . . 
 Weller i;. Snicaton .. 
 Wellesley v. Lord Mornington,5'(ip. 95 
 
 u. Wellesley .. 146 
 
 Wentworth t. Turner' .. .. 183 
 
 Westhead I'. Keane .. 227 
 
 Wharton v. May . . . . 101 
 
 Wheailey II. Slade .. 253 
 
 Whit bread i;. Jordan .. 342 
 
 Whitchurch I'. Hide .. .. 330 
 
 White V. Bishop of Peterborough 332 
 
 V. Hall . . . . " 342 
 
 V. Klevers . . , . 352 
 
 r. Nowlan .. .. 157 
 
 v.Steinwacks 378,380,5'Kp.88 
 
 Warner . . , . 89 
 
 Whitechurch v. Howorthy .. 168 
 Whitfield I). Bewitt .. 136,166 
 
 !'. Ralfe .. .. 99 
 
 Whitehouse v. Hickman, 384, Sup. 89 
 
 r. Partridge .. 126 
 
 Whitelegg v. Whitelegg. . . . 368 
 
 Whittakert;. Howe .. Sup. 65, 67 
 Whittingham v. Burgoyne . . 22 
 
 Wooler .. 199 
 
 Whitworth v. Davis 
 Whyte V. O'Brien 
 Willes V. Levett . . 
 Williams v. Cheney . . 
 
 V. Davies 
 
 V. Earl of Jersey 
 
 V. Wacnaniara 
 
 V.Williams.. 
 
 Williamson v. Gihon 
 Willingham v. Joyce. . 
 Wilkins v. Aitkin 
 Wilkinson v. L'Eaiigier 
 WiUon V. Tindal 
 V. Wetherherd 
 
 309, 310 
 
 64, Sup. 10 
 
 . Sup. 10 
 
 52 
 
 64,415 
 
 Sup. 4 
 
 146 
 
 160,229, 251 
 
 22, 25 
 
 52 
 
 197, Si(p. 36 
 
 5 
 
 Sup. 43, 44 
 
 104
 
 \ in r Alll.l. < 'I < A"! J.-. 
 
 \Viliii«, Ijotti iiny «k. ». **»«► ' Aikjn» 
 
 Win«UnW; «. U* .. ..Hr«ln» 
 
 WtllK^f t. I>c«n«nd Chapln of »• KMi« .. . .W^ Vi" 
 
 \\.. .! , , . |l.-'.i ,..,01, .40.1 ■ ' 
 
 W,..,,' ,..1 I . -M»e .. M4. 146 W ■ 
 
 \%(i>mI r. iU-».lrii . .1l«l. SIT. 39S U 
 
 ». lU-riMl . . . . a7 \\ 
 
 t (..,.". •" , - '■ ~ "' 
 
 \\,..U., \S . .. 5«f.n , ;t. .. IW 
 
 W,.. !r •!. P. rl .. .190 ' YtyrlU ^p.bt 
 
 W. «..!!. ....- ■ «• i!r» .. II 
 
 \\,,.lr, < » . *•». I"» V. 
 
 \VoMit>«r«l I . K^ri u( IJmuIn . . i'>V, 
 
 400, 400 Y»»J «. Fa««< 
 — . t.UyW* 77 isJ Yotaii r. Wiojari) 
 
 KUUAIIM M COKRIGK-NDIAI. 
 
 I*. 391, line 4, for " witcrc ii bu" — read " «»>>«rc an injumcli»m bak.** 
 In p. r*5:> of llic Irc^li^r, Uic 46lli Gnictal Or 'hoold h«»e brrii 
 
 rrfcrrrd to, bjr «liicli it ii ofjrrrd, "• That ctrr\ •., lo »l«v (•rwrrd- 
 
 " iiigt u|>oii anv ilrcrrr ur uftirr olitcli i* appraird itvtn, be inxir lirM lo ibv 
 " judge who pronuuucrd the decree of onlrt."
 
 TREATISE 
 
 INJUNCTIONS. 
 
 PART I. 
 
 OF STAYING PROCEEDINGS AT LAW AND IN OTHER COURTS. 
 
 CHAPTER I. 
 
 Of Injunctions to stay Proceedings at Law where the 
 Legal T'itle of the Defendant in Equity, is founded ori- 
 ginally on some inequitable Transaction ; or is against 
 Public Policy ; or where, although the Legal Title of 
 the Defendant in Equity may not have been originally 
 inequitable, it has been tainted with Fraud, actual or 
 constructive, by the subsequent Conduct of the Party 
 claiming under it. 
 
 1. Proceedings on Bonds or other In- 
 
 struments obtained by Fraud, 
 
 2. Gambling Transactions. 
 
 3. Restraining Proceedings on Instru- 
 
 ments affected with constructive 
 Fraud. 
 
 4. Jurisdiction to restrain Proceedings 
 
 at Law on Instruments void at 
 Law ; and Distinction between 
 Illegality apparent on the Face 
 of an Instrument, and Illegality 
 appearing by Evidence dehors the 
 Instrument. 
 
 Gray v. Matthias ; Simpson v. Lord 
 Howden ; and Jones v. Lane. 
 
 Not necessary to show Certainty of 
 the inequitable Foundation of an 
 Instrument. 
 
 Restraining Proceedings on Instru- 
 ments founded on Expectations 
 from third Parties, and concealed 
 from them. 
 
 Exception to this Rule. 
 
 Restraining Proceedings on Instru- 
 ments given by Persons having only 
 Expectations, 
 
 Pr
 
 HTAYINIi I'MtKBKUiNtir ir\ICI I. 
 
 10. Httirutiu QiuU/ie^u^ tf lAtt I Ifl. f 
 
 n. \ ' 
 
 I 
 
 H. C'tHrral ('••/iriiiMud iJr>iirM from 21. / • 
 
 ikt Vttut 1,'H ihit llttut, I'^iil^ Ji^ut uitttj hit l^gmt 
 
 \ii. L'i»i(rii<-ri OHd InttrumtHti m ' /(ij(A(i, it fi--!!-:»f fc«i I'artmer in 
 
 k'mud of lA< (''*Hry L«ir«. « Fro'. MarftM. 
 
 1. 1 1' a partv is prcHTfWinp at law oi. .. ....... ..r other 
 
 loy^al iiistriiiiK'Dt, obtniiird l)y fraud, ur hy im-anj* of any 
 iMO(|iiital)l(> tniiisaction, a Court of Equity will in f^cticral 
 intirfiTr by injututioii. Thus in a caw whc-rc A,, a 
 forriLjnrr, hound hiniHtdf as sun-ty in an ohliij^ation to pay 
 money to B., another foriM'^rnor, in a foreijrn country, by 
 tlur laws of which the |RTfton hound hv such ohli<fation 
 c«»ultl not Im' arn^ted, an<l afterwards hoth parlies came 
 to this countr\' : an<l then A., being about to Hail on a 
 forein;n expe<iition, was arrested hv B., an<l, in order to 
 proi'uro his reh'usc, -jave hills and executed other secu- 
 rities ; B. was restrained by injunction from proceeding 
 in actions upm the bills and securiti«*8 w> obtained ; and 
 LonI Ix)U'j;hboroui;h, C, intimated an o|)ini(>ii that he 
 should probably at the hearing set aside the bills (a). 
 
 So in a case bcf<ire I>ord Eldon (A), in which one of the 
 defendants had taken fr«>u) the other defendant in payment 
 of a debt, a note for oO(X'/., obtained from the phiintiif 
 luuler circumstances of gross fraud, and the answer of the 
 holder of the note was not clear as to the ^www^^/eiof the 
 
 ,',..^rr.3Ves. 447. (fc) JrrtuT.II *u<.7 Ve*. 413.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 3 
 
 transaction on his part; an injunction having been granted 
 against the drawer, Lord Eldon continued it as against 
 him, and extended it to the other defendant, the holder, 
 ordering the note to be deposited in the hands of the 
 Court till the hearing. 
 
 Again, in a late case upon a promissory note, which was 
 taken when overdue, under circumstances affording strong- 
 grounds of suspicion against the taker. Sir L. Shadwell, 
 Vice-Chancellor, restrained the defendant from proceeding 
 at law upon the note (c). This order was afterwards, it is 
 true, discharged by Lord Lyndhurst, Chancellor (d) ; but 
 from the short note of his Lordship's judgment in Mr. 
 Simons' report, the decision appears to have been put on 
 the ground, that if the facts alleged were true, the question 
 could be tried at law in a more satisfactory manner ; and 
 nothing appears to have fallen from his Lordship to im- 
 pugn the doctrine of the Vice-Chancellor, that equity had 
 jurisdiction, notwithstanding there might be a good defence 
 at law. Where, however, by the facts in evidence, dehors 
 the instrument itself, it does not appear that the holder 
 had knowledge of the illegal origin of a bill, he will not 
 be restrained from proceeding on it at law. This appears 
 by a case which was decided by Lord Northington, and 
 afterwards affirmed in the House of Lords (<?). There a 
 note was taken by a bond fide creditor, which was overdue, 
 dishonoured, and not indorsed by the party from whom he 
 took it : of the origin of the bill, however, it appeared 
 that the holder knew nothing. It was held that he should 
 not be restrained from proceeding on it at law, although the 
 fact appeared by the pleadings, that the note was origin- 
 ally given to a broker in respect of illegal stock-jobbing 
 transactions. But since it has been decided at law, that 
 where a note is indorsed after it is due, and appears on the 
 face of it to be dishonoured, it shall be left to the jury on the 
 
 (c) Hodgson V. Murray, 2 Sim. 515. (e) Dunbar v. WiUon, 6 Br. P. C. 
 
 (rf) 3Sira.283. 231. 
 
 b2
 
 mI(/\ ll. IT 
 
 • V to ffnt I n'- 
 
 tioii, in whirii tlir |>luiiititrut luw muitt uliiKXit ofnccctitity 
 fiiil. 
 
 All injiiiMiiiMi niiiv U* uliMt t;r.iiili*<l to rc>*lniii) |>r(K'o<*<liiiK 
 iiniirr an ii<.'ri*«'iiirni ftuiiuli-il on a framlnlrnt r(*|tr<-«M-ntutif)n. 
 TlitiH^^h • liiw invention MiMilfl 
 
 cn.iM. .1 „ wf tlu; onlinury dc- 
 
 M*ri|)tion, im» ua to obtain from it tunuv vuluulile product, 
 \\\u\v lir knrw and • I tin* fart that a particular 
 
 HutiHtancc, not nifnii-i.' •• ..i tlic it|M-<-i(ication, niuiit he 
 usi'il ; Mii(*li tniudulcnt rcprcMMitation wa^t licUi nuflicicnt 
 ground for rr>.tr.iinu>j prmH-fflin^'H inxlrr an ap-ffmcnt to 
 piirrhaj<f a li«M"nrc, and for wttinu; aniilr the u^reeiDCDt(5r)> 
 
 Ji. Hrfore the 5 &: () Will, 4, c. 41, hilln and notc« given 
 
 in rt'sjMrt of a miniMin'^ tninsaction, wm- l»y '' ' * itr 
 of Ann(/)) al)Soliit<-ly void. Hut c-(|iiitv had jui . lu 
 
 relieve a^iinst such instrunirnts, and to dp<Tee repayment, 
 if nioiirv Ir.ul JM-rn |);iid utuler thrniC); «»r to restrain 
 pnK-i'«>ilin'_'s at law, anti to liavr thcni di-li\«r«<l uj» to be 
 canerllrd(A). 
 
 Hnt. bpcanse rf|uitv has thi> juriMhriion, il d«K.-j* not 
 follow that it will always interfere atjainst a bill j^iven for 
 a pindilini; transaction. In general, in the cases in which 
 a eonrt of erpiitv has interfered, it has lx»en necessary for 
 the plaintifT to come into that court for discovery, and 
 for the purpose of connectinu the instrument in t|uextion 
 with the transaction on which its illep^lity is founded. 
 And then, if the circninstances are sus[>icious, equity will 
 restrain proceedings at law on the instniment, till they are 
 liettcr explained. Thus, when- a party to<jk a bill of ex- 
 change for valuable consideration, and it was alleged by 
 
 (/) nr. irn*. /Javi/,, 3 Tenn Iv Harden v. ShadveU, Amb.269. 
 
 80. and the Dole. > \'tttman ». Fnncf, 2 Ami. 
 
 (g) Lw// ». Ilich, 2 Y. & C. 46. 519 ; Amdrtvt r. Berry, 3 Ami. 634. 
 (*> 9 Ann.c H. j I.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 5 
 
 the bill, and not denied by the answer, that the bill was 
 originally given for a gambhng transaction; and it ap- 
 peared by the answer, that if the defendant did not ac- 
 tually know of the illegal consideration, he, at least, 
 took the bill under circumstances of great suspicion and 
 without inquiry, the Court sustained an injunction restrain- 
 ing him from proceeding on it at law il). 
 
 So where the holder of bills was charo;ed with havino- 
 taken them without valuable consideration, and with notice 
 of their having been originally given for gambling debts, 
 and by his answer he denied the notice, and alleged gene- 
 rally, that they were taken by him in consideration of 
 debts due for business, but did not set forth any parti- 
 culars of such debts, and said he had no papers relating to 
 them; an injunction was granted till the hearing, the 
 plaintiff paying the amount of the bills into Court (m). 
 
 But in a late case in the Exchequer, on a motion to 
 dissolve an injunction to stay proceedings at law upon an 
 I. O. U., the answer stated, that the defendant was a paid 
 attendant at a gambling-house in Paris ; that he lent 
 money to the plaintiff in one of the rooms of the gambling- 
 house ; that he did not know whether the plaintifi" applied 
 it for the purpose of gaming ; and that it was not lent for 
 any particular purpose ; the Court said there was not 
 enough for it to proceed upon, and dissolved the injunc- 
 tion («). 
 
 If the illegality appears at law the Court will not inter- 
 fere ; thus, in Graves v. Houlditch (o), where the case was 
 that the plaintiff indorsed a bill given for a gambling debt, 
 and the holders sued on it at law, and failed on the defence 
 that the bill was given for a gambling debt; afterwards 
 the plaintiff accepted another bill in favour of the same 
 holders, in consideration of their giving up the original 
 bill, and he then suffered judgment at law by default on 
 
 (/) Lord Portarlington v. Sonlby, (w) Wilkinson v. L'Eangier, 2 Y. 
 
 3Myl. &K.104. & C. 363. 
 
 (m) Wyjtnev. Jackson, 2 Ruis. 351. (o) 2 Price, 147.
 
 G urAYIHII PRtK-KEIMMlM [I'ART I. 
 
 tlir HuitI liill : the ('oiirt (if Kti«-lic«|U(T lu-Ui tlint In* IimiI 
 
 III) ••«|uitv for (III II ' ' ' ' • i > ,,jj 
 
 till' MM-«I||(| lull, I I .It, 
 
 thf Hiiiiii* (Irffiicc ON on the fintt. 
 
 Tlir I ilU 
 
 Hiid not. _ _ ^ im, 
 
 by thf /» Sc ti Will. A, c, 41, wliirli n'|M>ulii ihi* provwion 
 tilxivc r«ffrrc«l to of tin* [) Anne, timl i-t li liilU 
 
 and notcM, instctid of In'uik iihtioliu . . lall be 
 
 de«Mni*<l and tiikiii to have lM'(>n niadr, drawn, accepted, 
 jjiven or extt'utwl for tin iUetjal coHsUJrnttion. 
 
 A. Where u {MTson tuken a hill drawn in the nanu* of a 
 firm by one* of the partners, who by tho [tartncrHhi|) urti- 
 chs is expmssly n-Htrirted from drawint; bilU in the name 
 of the firm, and the holder faiU to prove that it bait Ix^'n 
 r('prt>fu?nt(Hl to him that the bill watt the bill of the firni, 
 he will be r»rd«'red to deliver it up(/i). And where an 
 exociitor holds prominHorv notes made to him aH exccutctr, 
 and showins; that fact npon the face of them, a party, who 
 takes til' ~ in a tniiisaetion iii< f with the 
 
 due adtii II of the te!*tat«ir's a^- i>rs liimM.'lf 
 
 liable to the conseijuences of the devtihtavil. TInm where 
 bankers tfM)k such notes from an executor, as a wrurity 
 for advances for the purj>ose of carrying; on his own trade, 
 they were restricted from procee<Uni; against the maker of 
 the notes, and that, althou<xli they had not themselves seen 
 the notes before they made the advances ; but their agent 
 had ; and the Court held, that notice to their agent wa« 
 notice to the principal iq). Hut where A., having constant 
 dealings under a power of attorney from B. with C and D. 
 bankers, drew a check on another bank, and got from C. 
 and 1). a bill for the amount, and then indorsed it in the 
 nanu' of B. to E. who sold it to the defendant, and it turned 
 out tJKit A. Jiad no eft'ccts at the bank nn which the check 
 
 . .\li7ii<Y,2 Ve».juD. (f . P0rtr,2 U>ll & 
 
 B. 41'l.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 7 
 
 was drawn, but neither B. nor E. had any knowledge of the 
 fraud; E. afterwards procured B. to indorse the note, and 
 then brought his action upon it against the assignees of C. 
 and D.; on this state of things the action was restrained 
 till the hearing. 
 
 At the hearing, the Court seems to have thought that 
 if the indorsement to the defendant by the attorney, had 
 been a good indorsement, the bill must have been dis- 
 missed, as there was no fraud in the purchaser of the bill: 
 But, by the terms of the power of attorney, the Court was 
 of opinion that the attorney had no power to indorse the 
 bills; that, therefore, the defendant was not a holder of 
 the bill, and, as a necessary consequence, he was not a 
 hona fide transferee of the bill ; on this ground the Court 
 decreed the bill to be delivered up (r). 
 
 Where several persons become sureties for a sum of 
 money, each in a separate bond for his proportional share 
 of such sum, there will be a liability between them as sure- 
 ties, even against the intention of the parties (s). But if 
 the transaction is such as to show that each is a surety by 
 a distinct and separate transaction, and that it is not in 
 fact the same transaction split into different parts, one of 
 the sureties, who has executed his security, is bound, 
 although another of the intended sureties may not have 
 executed his ; and the Court will not interfere to restrain 
 the obligor from proceeding on that one of the separate 
 securities which has been executed {t). 
 
 At tirst sight there is considerable apparent similarity 
 between the two cases referred to, but it will be found 
 that there is in fact a solid distinction. In Dering v. Earl 
 of Winchelsea, there were, it is true, separate bonds, each 
 for 4000/ , but all were subject to the same condition, 
 viz. they were all conditioned for the due performance of 
 
 ()■) Esdaile \. La Kauze, I Y.&C. Cox, 318; and see per Lord Eldoii, 
 394. T. & R. 429. 
 
 (s) Dering v. Lord Winchelscu, 1 (<) Coope v. Twynam,T.&il\,426.
 
 8 IMO rROCKKUINOW [pAUTI. 
 
 Drrinp'fi ilut\ -f ruHtoiiiM. It wuh tlirn-- 
 
 forc luir t>urtli<-ii, .iiiii I.IK t • 11, 
 
 III ('(Ht/tr V. Ttrt/nrtm, \i> iiM-iit wm» thlt A., It. 
 
 iiiiij ('. hliiMiJil iiy for tli«* |iiiyiii<'iit to Twynaiii of 
 
 Mifli mmi, n< • ... > ■ t J„. fouml <|iio 
 
 to him frniii i> ■*ii<l tliut the 
 
 Heriirity itiioulcl Ix* uivcii by one InhuI frnm Hnico ttiul A. 
 for Wl. , ■ ■ • . !• 
 
 UIkI H. ti)! . ^ 
 
 Rrucc iiml C. piiy luy. Tin- Irnnwirlion 
 
 HUH thcn-forc bona jld*: coiu|M>M.<l of three distinct obli- 
 
 4. Ill Jerris v. IITri/f, uiul Ilodijson v, Murray(u ), thf ju- 
 risdiction of the (.'oiirl wuH calUd in (|iuM4liun. In tlu- f»irnnT 
 cnsf, the notf had been nc^(»tiated while the order for an 
 injunction was l>einjj mtide, and the holder of the note had 
 brouixht his u«tion, before the motion to extend the injunc- 
 tion to hill). It was insisted for him, that the Court had 
 no jurisdiction to withdniw from a jury, a question already 
 the siibiect of an action. IJiit Ix»rd Eldon said," I do nf)t 
 admit that this Court will not examine the facts of the 
 case with a view to determine whether relief shall l^e ad- 
 ministered or not, merely 1' a action may l>e main- 
 tained. I a^ree, when lli' ■ ry is obtained, if the 
 facts are contradictory, a judpe sitting; here would act 
 nishlv if he should not desire the assistance of a jur>' ; 
 and if matter of law arises, unless it is very clear, he 
 ought to take advantage of the assistance he can have as 
 to that. But if the facts and law are indisputably clear, 
 I cannot admit that it is not within the jurisdiction of this 
 Court, and the due application of those circumstances, to 
 act not only without sending them, but without allowing 
 them to CO, to law. At the hearing, the Court will deter- 
 mine whether an action ought not to be tried, but is not 
 bound till the hearing (r)." 
 
 (#.) CiteUdiirr.pp 2. 3. (i> " Vc». A\b
 
 CHAP. I,] AT LAW AND IN OTHER COURTS. 9 
 
 In Hodgson v. Murray, it was urged for the defendant 
 that the plaintiff might have availed himself in a court of 
 law of the circumstance that the bill was over-due, and 
 that, therefore, the case being one in which that Court 
 could do complete justice, the plaintiff had no right to 
 apply to the Court of Chancery for its extraordinary in- 
 terference. But to this the Vice-Chancellor answered 
 that, although a court of law might not allow the de- 
 fendant to recover on such a note, that was no reason 
 why the Court of Chancery should be deprived of its juris- 
 diction {y). 
 
 On this point, viz. the jurisdiction of equity to interfere 
 against instruments which cannot be proceeded upon at 
 law, there is however a distinction to be observed ; where 
 the illegality appears by the instrument itself; and where 
 it depends on evidence dehors the instrument. It is said, 
 that Lord Thurlow denied the jurisdiction altogether in a 
 case referred to in Colman v. Sarrel (^). In Franco v. 
 Bolton (a), Lord Loughborough allowed a demurrer to a 
 bill for an injunction, and for delivering up a bond alleged 
 to have been given for future cohabitation, on the ground 
 that the necessity for the interposition of equity was en- 
 tirely taken away, when all that matter that would avoid 
 the bond might be pleaded at law. And Lord Thurlow 
 appears, in a case of Ryan v. Machnath (b), to have inclined 
 to this view. But the same learned judge, in a subsequent 
 case (c), expressed an opposite opinion. In that case, a 
 bond had been given to a trustee, and it appeared that it 
 was for the benefit of a party who had resigned a public 
 office, and upon whose resignation the obligor had been 
 appointed to such office ; so that although the illegality of 
 the consideration was not clear upon the face of the bond, 
 a strong inference arose that it was bad, as being given in 
 consideration of an appointment to a public office. The 
 
 {y) See ante, p.3, as to the effect of («) 3 Ves. 368. 
 
 Lord Chancellor's order in this case. (6) 3 Br. C. C. 15. 
 
 (:) 1 Ves. 50 ; see p. 51. (c) Thrule v. Ross, 3 Br. C. C. 57.
 
 lO NTAYiJiu riiocKi:i>ixn« [i'aut i. 
 
 L«>nl Chunrrllitr i an iiijiiiiftioii which hud Imtii 
 
 i>htuiiir<i iM-lorf ii ....lit; in of the uiimhit, h'uvin^ the 
 
 (|uti»tioi). Mhrthcr thrn>iiHi(i(*nitioii %*uHrciiTU|»l, to U'tricil 
 ■tliiw. Hut hill Lor(Uhi|tcx|irri*it|y (;iiur(h-<l hiiiiM'tfai^iniil 
 itii !>' lirntiMNl, that the (^nirt umilfi init M*t BHide u 
 
 Injii-i •lint olu rorrii|it coiiHith'niti<»ii, only Imtcuum' 
 
 it mi^ht br inndr thf iiuhjivt of a (ht<ii« <* at law. So, 
 'i thr dirniduiit h! ' ' ' ' ' ' t in 
 
 II l»riMi<:ht oil liiii >tm.' 
 
 wotihl t'urniiih a dcfrncr at law, yet he i* not thert'furc d^ 
 privi'tl «»r hi.H i-«|iiitv lo have th«-in ili-li\iT' ' nd will 
 
 havr an nnicr tor dfhvrrin)^ thcni up to Im- < ' M, und a 
 |H>r|M'tual injiinrtion to rr^train proceedint^s at luw(c/). And 
 in Jachffuin v. A/itr/irll e), a hond ii|i|M-(irinL; t«» Im- had at 
 law, by matter lii/iors thr in-tnnut nt, «»>. ..nlmd i<» l>r 
 dcliverctl up hy the hol«l< i 
 
 It is now, ill factyWrli M-ltitd l>v a ur«-at pri-poiidt-ntncc 
 of modern aulhoritic}*, that when- thn illegality of an in- 
 Dtnnuent dm-s not appear by the inRtniment itxtdf, but 
 dp|M'nds on evidence dehors, <*quity will interfere by in- 
 junction, and if nocessarN* by ortlerin^ the inxtnimcnt to 
 be deliv«rc<l up to be cancelled (/">. 
 
 5. Hut that oquitv \mII imt iiit« rtirr, u ii<p- tin- mI«-j;iiii> 
 appean* on the face of the instrument, was decich'd in 
 (Jray \. Mathius(ff) by the whoU- C<»urt of Kxchec|uer, 
 on a bond a|tpearinLr «>•» the face of it t«i have Iw-en pven 
 pro turpi causa; and the ride has since Ix-en continued, on 
 preat consideration, by Ix>rd Cottenham, C, in a ca»e in 
 which all the authoritif'S were most elaborately analyMfl 
 by his Lordship. I alhide to the case of Sinijt.snn v. Lord 
 
 (d) MiHthaw *.Jorrian,'3 Hi. L .C 3; and »t<: pp. IG to 22. .V< al»o 
 
 16, ootct; Litl* \. lAtidlf, 3 Aa*. 649. Ilayvard v. Ihmulale. 17 Ve». Ill ; 
 
 (*) 13 Ves.&81. and thcobMrvatioDsofSir.lolin l>racb, 
 
 </ ) f^v^f V. Viv'iin, Bynt v. Pol- M. R. io Grotrr ». Hugtll, 3 Hum. 
 
 »♦•■. ' i. 5 Vcs. 604. 432; Jonti ». iMnt. 3 Y. & C. 281. 
 
 609. /7..//.if,d,7 Vcs. (^) 5 Vc». 286.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 11 
 
 Howden, in which a demurrer was put in to a bill for an 
 injunction, to restrain proceedings at law on an instrument, 
 the illegality of which, if it was illegal, appeared on the 
 face of the instrument itself. Lord Cottenham, after re- 
 viewing the authorities, said : " If then there be no case 
 in which this jurisdiction has been exercised, and if I find 
 Lord Thurlow in the case referred to in Colman v. Sarrel, 
 and the Court of Exchequer in Gray v. Mathias, de- 
 ciding against it; Lord Alvanley, in Brotnlei/ v. Holland{h), 
 regretting that the jurisdiction had been assumed in the 
 cases of annuities, and Lord Eldon, in the same case 
 directly (z), and in Ware v. Horwood (k) inferentially, dis- 
 claiming the jurisdiction contended for, it only remains to 
 be considered, w hether any such cogent reason exists in the 
 present case, as to make it my duty to assume the juris- 
 diction, and so for the first time to establish a precedent 
 for it." And his Lordship, — on the ground that all that 
 would be done by a decree in equity, would be to order 
 the instrument to be delivered up ; that the same ques- 
 tions must be raised at law, as were raised by the bill ; 
 and that if the plaintiffs in equity obtained a verdict at 
 law, and the illegality of the instrument was established, 
 their whole object would be obtained, — allowed the de- 
 murrer (/). 
 
 The doctrine on this distinction, is thus clearly summed 
 up in Jones v. Lane{m), by Alderson, B. : " The result of an 
 examination of the authorities seems to be, that if a party 
 has wrongfully obtained possession of a bill of exchange, 
 although under circumstances which would give a com- 
 plete defence at law, equity will nevertheless interfere, if, 
 from lapse of time or death of witnesses, such defence 
 is likely to fail; but that, if the objection, being apparent 
 on the face of the instrument, must always be open to the 
 defendant, whenever such action shall be brought against 
 
 (/i) 5 Ves. (I) Simpson v. Lord Howden, 3 
 
 (i) 7 Ves. Myl.&C.97. 
 
 (fc) 14 Ves. 28, vide p. 32. 33. (m) See 3 Y. & C. 294.
 
 12 HTAYI?((2 IMIIH KHiJi.HCif* [I'AKI 1. 
 
 him, In- iH iiitt ciititlrtl l<» »|»j»l> to II (Vnirt of f<juity for 
 
 M-lM-f." 
 
 Hut it in iufcuwiry, in tmlcr to justify the interference of 
 •',.it tin- tu • . ' < • i , J-,, I 
 
 j II of thi" n : .1 ill «• 
 
 nt law, on fircuniHtuiirtM tlw jinnif of Mhirh ifi tlehon tin* 
 inHtrtiini'iit, hikI lial)lr ti> Ih* limt. In the cw- •<! 
 
 to(M), the indorhrr of ihr hill hud rrrriv«<l it :,' -11 
 
 brought on it, and uith full knoulrd;;** of that fact, and 
 lUultT HUfh i"ir«"uinstnni'i*>» thr (^lurt wan of opinion, that 
 equity nii^ht interhTc hy injunction, although an action, 
 it serni», could not he hrouuhl(o); Becauw* the <lefence 
 at law would rest on the express notice of the action 
 previously l)rou<^ht ; an<l of the prcKjf of that notice, 
 tiuu' and the deaths of witnes8<*s mi^ht deprive the ac- 
 ceptor. The decision in Jonrs v. Lane wa«, however, 
 ultimately against the injtniction, on the u^round that the 
 j)ossession of the indorsr'c was not wrongful. 
 
 riu" Court will open a solicitor's hill after security 
 '^i\«-n and even after pavnuMit, if the client can |X)int out 
 in the hill <;ross errors, an<l char;^es auiountin;^ to iinjM^ 
 sition and fraud : hut if nothini; can he made out aj^inst 
 the solicitor hut a trifling inaccuracy, and no fraud, ini[K>- 
 sitioii, or nuitt-rial error is established, proceedings at law 
 upon a bond given by the client, will not be restniine*! 
 merely because business was still going on when it was 
 given, (p) 
 
 6. And here it may be observed, that in retranl to staying 
 proceedings at law under unlawful instruments, the ('ourt 
 docs not refjuirc certainty of the unlawful foundation of a 
 security, to justify its interference; but if, upon the answer, 
 it sees sufficient to raise a great degree of doubt whether 
 the consideration of the instrument is lawful, althr»ugh 
 
 (n) Jones V. Unf, 3 V. & C.281. p. 294. 
 
 (o) C oLmibies or Col II mbier r. Slim, (p) C^ok v. Srlrrr, 1 Vc5. & Hu.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 13 
 
 there is no actual evidence that it was not so, the Court 
 will restrain proceedings at law until it is in a position to 
 come to a conclusion as to the rights of the parties, (q) 
 
 7. Under the head of fraud, may be considered the cases 
 where parties have been restrained from enforcing at law, 
 instruments founded on or having relation to expectations 
 from third parties, where the Court has considered it 
 probable that, had the transaction been known to those 
 from whom the benefits were expected, the abandonment 
 of the arrangement would have been made by such par- 
 ties a condition of the realization of the expectations. 
 Thus in Woodhouse v. Shepley,(r) a woman, who had 
 expectations from her father to the extent of 500/., was 
 induced by a man who paid his addresses to her, to give 
 him her bond, conditioned to pay him 500Z. if she did not 
 marry him witliin thirteen months from the death of her 
 father, and he gave her a corresponding bond. The 
 transaction was kept secret from the father, who disap- 
 proved and forbade the marriage; the father died, be- 
 queathing to his daughter 340/., and then she suffered 
 the thirteen months to elapse, and filed her bill to be 
 relieved against the bond. Lord Hardwicke ordered it to 
 be delivered up, notwithstanding the mutuality, chiefly 
 on the ground of its being a fraud on the father, who 
 thought his child had submitted to his opinion of the 
 match, and in that opinion made a provision for her to 
 advance her in marriage, which, had he known of the 
 bond, he would not have done, or might have done in such 
 a manner as would have prevented the marriage ; and his 
 Lordship compared it to the case of bonds given before 
 marriage to return a part of the portion. 
 
 So in Cock v. Richards, (s) the plaintiff had given a 
 bond to the defendant, that in case he did not marry her 
 within a year after the death of his master, from whom he 
 
 (q) Earl of Milltown v. Stewart, (r) 2 Atk. 535. 
 
 3 Myl. & C. 18. (s) 10 Ves. 429.
 
 14 UTAVIMa I'ttiK'EKlliNOH f PAIIT I. 
 
 had expr(*talinn«, thru hr thoulii [tay tier J 1 lui 
 
 Court n'«tn«iiii*<l thr flrfrmiiiiii from proc(re«ling iit law 
 
 on i' ' ' ' ' ' I'll- 
 
 loWi: iu\ 
 
 rouUI \w ituppnnrti, aa licin;; aguimil public |iulicy ; that 
 
 lhrr«* yt i to 
 
 marry lli , ■ |»* 
 
 «n*rpt, and madr in conlrniplation of fttcftlM 
 from the |ilitin(drii ninj»(«>r. 
 
 H. An rxcfption t<> thin rtilr Iuih Imhmi made in a caac where 
 u |M*n«on, iM-ini; on hud lernm with hin falhrr and not ad- 
 niittrd to liiK prrtuMicr, on u trouty for tin* nlar^a^c of hit 
 flati^litcr with un infant, ^vr a Ixind^ronditionori to aettlc 
 on hitt dau^ht^r and tin- inHiii* of tlif murria^c, if th<« mar« 
 ria<^e took plarr, a thini of tin- cKtatr that hhould come to 
 him from hi»« fatlitT, within on<- month aft«r hin death, (f) 
 The Court put it on the p^und that it wait an af^^meot 
 made f(»r valualile consideration, and *' ' r>- fit to be 
 executed in erpiity. And it i» to Im- 1 alik), that 
 
 there was no alienation of ronceulment of the marriage 
 from thr fatluT, and '" ' ... j^j^ 
 
 drath, thi-re was no . ii- 
 
 cealnient from him. 
 
 There is, however, nutlnu^ iimjuilahlr or aijitinst puhiie 
 |>oliey, in an ugrerm«nt between parties who have ex- 
 |»ectations from a third party, to divide whaterer such 
 party may leave them. Thus in an early case, (?/) where 
 two partners marrying two sisters agreed that whatever 
 the father-in-Inw should leave to either of them should 
 be equally divided, the Court held that such an aprec- 
 ment ought t«) be carried into eflect. And in a later 
 case, the plaintifl^ and defendant both had expectations 
 from William Tooke, and agreed by parol to share 
 equally w hat he might leave them ; on his death he left 
 
 "' ^ ? P.\Vro«.191. 192; »Ddt«eH»tm>n\. Trex'cr, 2 V. 
 
 1. : P.Wms. Wros. 191.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 15 
 
 a much larger portion of his property to the plaintiff than 
 to the defendant, who agreed with the plaintiff to receive 
 a promissory note for 4000/. in satisfaction of his claim, 
 and afterwards indorsed the note to another person in 
 consideration of an annuity. The plaintiff then filed his 
 bill for delivery of the note, and to restrain any proceed- 
 ings upon it. The Court on the motion granted an in- 
 junction, on the amount of the note being paid into Court, 
 but at the hearing dismissed the bill, and the decree was 
 afterwards affirmed on a petition of rehearing (u). The 
 Court therefore in effect decided, that the original agree- 
 ment was good. 
 
 9. In regard to bonds or other securities founded on ex- 
 pectations, or given by persons having no present pro- 
 perty, and only expectations from persons living, it is a 
 settled principle that the Court will restrain proceedings 
 at law upon such instruments, unless the actual value has 
 been given ; and therefore in a case where a person was 
 eighty-two years old, and his three sons, all between thirty 
 and forty, borrowed 1000/., and gave a bond for 2500/. on 
 the death of the father, if one of the sons was then living, 
 the Vice-Chancellor granted an injunction, on the ground 
 that the sum paid was not the actual value of the bond (x). 
 A purchaser, however, at a sale bi/ auction of a reversion, 
 is not of necessity bound to establish that he purchased 
 at a full price (y). But if the sale is so conducted as to 
 show on the face of it, that the vendor is in the power of 
 those who deal with him, as where a young man, about to 
 raise a sum of 4000/. upon post obit bonds, payable at the 
 death of his father, put them up to sale, the particulars 
 showing that the sale was to take place without any re- 
 served bidding on his part ; the Court thought that under 
 such circumstances, the sale by auction did not afford 
 fair evidence of the marl<et price, and granted an injunc- 
 
 (v) Harwood V. Touke, 2 Sim. 192. (y) Shelly v. Nash, 3 Mad. 232. 
 
 (x) Marsack v. Reeues, 6 3Iad. 108.
 
 IG liTAYiNQ nKK'UKDlWi" [PAUT I. 
 
 litHi till Ihr lirarinK, lUe plaiiitifl puying into Court the 
 aiirtion prirr, with mlrrmi nt fivp |jrr cent, from tin- tiim* 
 
 !• .11 iM'tlli-<l UM u Kriiprul <li»rtriiic of equity, 
 
 that to |M>nM>ii« in the |M>Rition uf an i-X|NH-tant hirir, a de- 
 ^TTTf of pr. • '^ t" «»«» 
 
 incu|iurity t ' that it 
 
 in inrumliriit u|Min thoM* who ha«-r dcalin^N w ith rx|MTtant 
 hrir» rrliiliM- ti> thrir n*vrn»i<»nfiry in' " mkI 
 
 thr Imruaiii, llial in, to Im* ablr to '•' ! hkI 
 
 adtfiuatr i-onHiilcration wait paid (a). And while the prc*- 
 Hurr i»f thr ilif*trr}i>«, which induroti oripiially the- exiMTtant 
 hrir to i-ntrr into thr rontnut, r(»ntinufj*, no length of 
 ncquiiiirrnfr, nor won ronrinnati<»n,\vill prevent such heir 
 from coming to oqin anidr thr r(intract(6). 
 
 1<|. Hut the extniordinary protection of equity rotwt be 
 withdniwn if it shall apprar that thr transaction was known 
 to thr father or othrr prrson standinir in loco parentu, 
 oven altlnni'jli surii parent «»r f»lhrr prrson took no active 
 part in thr nrj^ociation, providrd the tranftaction wa* not 
 opposrd hv him, and so carrird through in spitr of him ; 
 and furthrr, if thr hrir flirs otl from thr transartion, and 
 becomes op|K)sed to him with whom he ha^* been dealing, 
 and repudiates tljo whoir bargain, hr nuist not in any 
 rrsprct act upon it, so as to alter thr situation of thr other 
 party or his property; at least, if he does so, the proof lies 
 upon him of showin'^ hr dirl so under the continuing 
 pressure of the same distress which gave rise to fli< <«ri- 
 pinal dealing. 
 
 These restrictive propositions were laid down u|>on a 
 rrvirw of the authorities by Ijord Brouirham, C, in King 
 V. Hamlet (c), a case which first came l>efore Sir L. Shad- 
 
 (: i I V. l« ri^>ii.6 Mad. 111. {h) Copland y.Def aria, \'\r%.2(i; 
 
 (•) 1 Br. C. C. 9 ; 9 Ve». 246 ; Crmtt ». BalUrd, 3 Br. C. C. 117. 
 
 PMeK*T.£M«t, 16Ves.5l2; Gtnc- (r) 2 M. & K. 45«. 
 Ind V. Dtfmrim, 17 Vet. 20.
 
 CHAP. I.] AT LAAV AND IN OTHER COURTS. 17 
 
 well, V. C, upon a motion for an injunction. Upon the 
 evidence then before the Court, it appeared that the 
 plaintiff, who was the expectant heir of Lord Lorton, and 
 entitled to a life interest in certain estates after the death 
 of his father, being under pecuniary embarrassments, ap- 
 plied to the defendant, who was a jeweller, for a loan of 
 money; that ultimately, there was no loan of money, but 
 the plaintiff took goods from the defendant's shop at the 
 shop prices to the amount of 8000/., for which he conveyed 
 as a security, all his expectant life interest in the estates 
 in question by a deed of mortgage, which on the face of it 
 purported to be for a debt of 8000/. The plaintiff further 
 insured his life in the name of the defendant, covenanting 
 to pay the premiums of insurance. It appeared that the 
 father of the plaintiff and friends and connexions of his 
 family were informed of the fact that pecuniary nego- 
 ciations were going on between the plaintiff and the de- 
 fendant, but they believed that the transaction was a loan 
 of money, and were not at all aware that the advance was 
 to be in the shape of goods. The defendant alleged that 
 the transaction was simply a sale of goods, and that he 
 did not know the plaintiff's object was to raise money by 
 means of them. But the Court, it is clear, treated this 
 allegation as inconsistent with the rest of the evidence. 
 The plaintiff placed the goods in the hands of an auc- 
 tioneer in pledge for an advance of money, and they were 
 afterwards sold by auction for 3482/. ; and, after deducting 
 lOper cent.forthe auctioneer's commission,and400/. for the 
 costs of preparing the securities and certain other .charges, 
 the plaintiff realized only a net sum of 2730/. His Honor 
 the Vice-Chancellor, after stating and commenting upon the 
 facts, and particularly on the circumstance that Lord Lor- 
 ton had not been aware of the true nature of the trans- 
 action, said, that the defendant and his agents must have 
 known that the object of the plaintiff was to raise money 
 by means of the goods ; and treated the sale by the auc- 
 tioneer as the sale of the defendant, oh the principle of 
 

 
 18 J»TAYIKO rROCEEDIK«l» (I'AllTl. 
 
 Barker r \' --./. .,tii| rmtntni**! Uh- ilrfrMidan! 
 
 rnuii tal. iiHt th<- plitintitr, or (tiii|MM(in^ 
 
 of tlir iMTunlM**, llif pliimiitr piiyini; inlo Court or l«» ili«- 
 (Irf. ' ' '... '2730/. uihI iIh- 4(k')/. <e). 
 
 'I I for an iiijimrtion \vji« alfirmrHl l>y th«' Ix>rd 
 
 CliuncvIK»r u|M>n tho winic pvidcncc ; hut n(\cr\uir<U at 
 ihr " "f ihr ran«t>, thr •li'|M»t.i(ioUH hIiowcH, l*t, that 
 
 tin J • s fatlur ami fririnln liail \uui\ aware not only 
 
 that thr Kon waM dcalin;^ with hift rxpcrtancy, but that 
 thr tn»n«»action wan a HPrurlty for tjofKN, tind imt n loan 
 «»fm(»n«y; -dlv, that whrn the jdaiiitifr hy allowing the 
 ^oodti to Im' 8oI(I I)v auction, no dealt with them a* to put 
 it otit of his power to restore the defendant to hid oriirinni 
 position, he was not eontinuinj; under the name pre^nure 
 of distress which existed at the orij^in of the transaction, 
 hut that his father had then conic to his r»»J*cuc, and that 
 he was in a condition to restore the tjo^R ; ntid u|)on 
 this state of facts his I,f)rdsliip di'^niissed the hill. 
 
 11. riuUr tills division also falls ilu- class ot cai^e? where 
 instruments are ohtained under undue influence. In thoj»e 
 caiies cfpiity will restrain the parties claiming under the 
 instruments so ol)taine(|, from j)r(MeedinL' at law, Thu^, 
 though a voluntary i^ift will not he dislurhed by the 
 Court merely us siuh, where it is bona fide, yet where a 
 solicitor allowed an annuity to be p^ranted to his wife by 
 his client, under circumstances showing that the client 
 wa}< under undue influence on the part of the solicitor, 
 the latter was restrained from enforcing the payment of 
 the annuity at law, all the Barons of the Kxchcquer con- 
 curriuir (y). 
 
 So where the execution of a deed by a married woman 
 has been obtained bv the liusban<l under circumstances of 
 harshness and illtreatment, such as to induce the Court 
 to come to the conclusion, that although she might appear 
 
 (,.i) I Br*. C. C. U.q. (/) Goddmrd r.C^rluit and oU»tT$, 
 
 " * "" "- ' 9 Price, 169.
 
 CHAP. I.] AT LAAV AND IN OTHER COURTS. 19 
 
 to be acting" voluntarily, she av as not a free agent, the 
 Court will restrain the grantee from acting upon such 
 deed, and will direct an issue to try the validity of it {g). 
 \nd if on the trial of the issue it is found that the deed 
 ►vas obtained by duress, it will be set aside (A). 
 
 Equity will interfere against a deed or an agreement 
 entered into by a party while in a state of intoxication, if 
 iny unfair advantage has been made of his situation (i), 
 DF if there has been any contrivance or management to 
 iraw him into drinking (A), or even over-readiness to 
 icquiesce in and countenance his disposition to drink (l), 
 )r perhaps if upon the face of the agreement it appears 
 ;hat the offer was such, as necessarily discovers absence 
 3f judgment in the person making, or a degree of m> 
 ^airness in those accepting, it (m). Thus in Dunnage v. 
 White {n), the Court refused to carry into effect a deed 
 Df arrangement between the members of a family, princi- 
 oally on the ground that one of the parties was habitually 
 yiven to intoxication, and was ignorant, and incapable of 
 understanding his legal rights without professional assist- 
 ance, although he was sober at the particular time of 
 sxecuting the deed ; the deed showing on the face of it 
 that his rights were therein misrepresented. The Court 
 said such habits, though not constituting absolute inca- 
 pacity, lay a ground for a strict examination whether the 
 instrument contains in itself evidence that advantage was 
 taken of them. And to the same effect is the case in the 
 House of Lords, already referred to (o). There one Brady, 
 a tenant of Butler, under a renewable lease, had allowed 
 the lives to drop without renewing, and was indebted to 
 
 (g) Lady Strathmore v. Boives, 2 130, n. A. 
 
 Br. C. C. 345. (I) Say v. Barwick, 1 V. & Bea. 
 
 (70 Ibid. ; Peel V. , 16 Yes. 195. 
 
 167. (»0 See the observations of Sir W. 
 
 (j) Cory V. Cory, 1 Ves. sen. 19, Grant in Cooke v. Clayworth, 18 Ves. 
 
 and see the cases there cited ; Butler 17. 
 
 V. MulvihiU, 1 Bligh, 137. (n) 1 Swansl. 137. 
 
 (7c) Johmon v. Medlicot, 3 P. Wms. (o) Butler v. MulvihiU, 1 Bligh, 137, 
 
 c2
 
 20 NTAYIMG PRO(*KKUI!<iUM fl'\Kl 1. 
 
 Hutlcr III ii ... ' . ,il 
 
 lilii-n. Oil a I . I .. Iv 
 
 ulK*;;('(i tluit he could tioltl by rttuioii of tht* Statuti* of 
 I -ut for I It 
 
 \' ^ _ • r tliut j J . IWaily 
 
 otlt'itHi to coinmutr the urrrarw by mi tult uiic«-<l rent, aiitl to 
 ;jivr 'J'Hi/. II vrur. Ami lir uftfrwunU ••' n 
 
 Butlrr, wliilr thf lulti-r \%u* in u hIuU- . : ; , 
 
 tion, ill mIui'Ii IruHr thr n'lit r«-iuT%«-<l hum only 'MU. •< 
 It \M%H proVfMl thill at the iiiit'tiiii; hIicii the It'tUM- mum 
 olttiiiiicd, u |irori>)tHioiial iiiaii wu> rullc<l in, but thut hi* 
 n-fii»iri| to int«'rf«Tr or I«H)k nt thi* Umiw, on mrounl of tin- 
 state of iiitoxicution of Butler, and rrnionHtrated with 
 Hrady, and {'aiitionrd him a;;ainHt obtainini; a IctuM- frr»in 
 u man in the londitioii in MJiirh Hiitji-r Mai>. On thin 
 Ktutc of fnct« the IIoum- of I^ortlit drcluriHi thf leajM? roid, 
 n» havill^ bmi ohtiiinrd by fniud .. ' * u(p). 
 
 It is to !»«• <»bM'rvrd, that the |ti ..«1 diviititiii 
 
 iti not merely that the party whs netually intoxicated, 
 but that till- fact uf hin iN-in^ into\i(-:it(-<l, taken in con- 
 juiu-tion with the fact of the rent artiiaiiy re«.erve<l iM-in^ 
 j;ro8j»ly inade<juate, and diflcrent from that previously 
 a'jH'ed u|Min, atVorils an inference «if fraudulent advantage 
 taken of tin- intoxication of the piaintiti. For H* to in- 
 toxication simplicitrr, it is settled that equity does not 
 interfere a,:ainst an instrument, merely on the i^round of 
 the parly being intoxicated at the time of executinij it (y). 
 In the case of Cooke v. Claytcorth, the plaintifl appeared 
 to have executed a document originally written aj* an 
 ajireemcnt, an«i afterwanis altered so a> to amount to a 
 demise to the defendant, while in a state of intoxication, 
 and the balance of evidence was ag^ainst the prei^uniption 
 that he was by contrivance and inanairement drawn into 
 drink ; or tliat any unfair advantage was taken of his in- 
 toxication to obtain an unreasonable bargain. i!»ir William 
 
 (p) 1 bligh. 1 > 130, D. A i and Coeiu t. CUym/nk,
 
 CHAP. I.] AT LAW AND IN OTHER COURTS, 21 
 
 Grant, M. R., dissolved an injunction which had been 
 granted to restrain the defendant, the lessee, from pro- 
 ceeding in an ejectment (?•). 
 
 12. In cases where persons having entered into a 
 general arrangement with creditors for a composition, 
 have entered at the same time into a secret arrangement 
 with certain creditors, the effect of which would be to 
 give them a superiority over the general mass of creditors, 
 and to defeat the presumed intention of the general body, 
 viz. that they shall all receive equally, and that the 
 debtor, after the payment of the composition, shall be 
 free; equity will prevent such agreement, made in fraud 
 of the intent of the general creditors, from taking effect. 
 In Eastahrook v. Scott (s), the debtor had privately given 
 bills and promissory notes to certain creditors, who re- 
 presented their debt at the meeting of creditors to be less 
 than it really was, for the purpose of securing to them 
 their debt in full. The bill was filed by one of the cre- 
 ditors who executed the general deed and by the debtor 
 himself, against the holders of the bills and notes. Sir 
 R. Arden, M. R., ordered the bills to be delivered up, 
 and restrained the defendants from putting the notes in 
 suit, until it should appear whether all the trusts of the 
 composition deed would be satisfied ; but, on account of 
 the fraud of the debtor, reserved the question whether 
 the holders of the bills and notes should have the benefit 
 of them, after satisfaction of the trusts. In Mawson v. 
 Stock (t), the same point arose in a different form — there 
 the debtor brought an action to recover from the creditor 
 claiming under the secret agreement, the balance arising 
 from certain bills given by the debtor, over and above 
 the composition to which such creditor would be entitled 
 under the composition deed ; and then the creditor filed 
 his bill for an injunction to restrain the action. But the 
 
 (r) Cooke V. Clay wm-th, 18 Ves 12. (/) 6 Ves. 300. 
 
 (/) 3 Ves. 457.
 
 •>} •tTAVINU PUCJCBKOIWCill [fXWt I. 
 
 Court rrfuikf*! lo i^mni nii injumliun, not on the ground 
 of any r*|ully in itw* <I«"ffiuUnl, hut u|>on lh«» ground 
 til ' 'i«»ii un utrrccnuMil 
 
 t,| till- liiti-lltioll 1)1 
 
 llu- olhtr rrf«lil«»ni. lA.nl KIdt.n •nul, " It i« iinfMNMiiliU 
 
 ■ II 
 
 I. . ■ ■• 
 
 o... - . • . .. . ■' 
 
 only t»» thr romnion (irht»r bnt uliMt l<» th« othrr*. nil 
 pntrr into u drr<l of - ^n, on whirli ul" 
 
 fUcr of it Hvrrt"** to iiri , : m thr jhiuihI Mi '■ 
 
 (liM-har^r of thrir (irninnd, it i* not romjM-tcnt to u |»ar- 
 (ii'uhir «lri»«Tij»tion «»f rnMliiorn to tjo into iinothcr r»»«»ni, 
 unil sav that with the ilchtor thry innkr n (rr*U nrrunut*- 
 nu-nt for thrir hrnrJit. That though thry have ah^o- 
 lutrly (liHchargfil hin» in thr prrtirnrf of the othcm, yet 
 l)V thr Sf|)aratr nu'rcwnirnt th«y will hold him im» muayiMl 
 to thrni tliat th« y Hliaii rci-rivr 'JiU. in th»- |M»nnd, and »o 
 to bring tipon him the rhiim* of other* ; from whom they 
 reirivrd that, though thr othrr rre<lilt«rH think him ahjio- 
 Uitrlv tlisthargrd. That i« a fruud u|mii» the |K>liry of thr 
 law and iipt.n the other croditorn ; a fmn<i ujMin third par- 
 ties, of whirh it ha** liorn uniforndy hrld that the dehlor 
 may take advantagr." 
 
 13. I. I'nder this head an- to hr ronsidrrvd m'vithI 
 cases of a mixed nature, in whi«h the viee i»f tin- trans- 
 action consists, partly in its being fratidulent aM atfain^t 
 intlividuals, ami partly in its Ining inconsistent with publir 
 policy. Of this kind are what are calle<l marriage bnK'Hjr 
 lK»nds(M); Inmds or other securities given in considera- 
 tion of obtaining places in the public service (x) ; or for 
 
 (m) Dniry v. ihok. 1 Vera. 212; HanHingU,n v. DmeimUl. \ Dc. C. C. 
 
 /4riin<fr< V. Trrti/Ziaii, 1 Ch. Rep.47 , \2i , Symfrndt «. Oibum, 2 Vcrn. 
 
 \\'ill>am*»u r. Gihan, 2 Sch. it Lcf. 308 ; W'hiliingkam r. Burgoynt, 3 
 
 357 , Smith V. Bnnninr, 2 Vcrn. 392. Ao»U 900; Mtrrur. U'CnlUek, Amb. 
 
 (i) HariKtU T. HariKfil. 4 Vc'. 432. 
 811; ThntU^. Rom, 3 15-
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 23 
 
 the exercise of influence over others in the disposition of 
 their property (y); or for other objects fraudulent in in- 
 tention, and mischievous in pohcy. 
 
 The general rule in this sort of case is, that the party 
 claiming under a title thus tainted, shall be restrained in 
 equity; although in some cases which we shall shortly 
 consider, the Court has proceeded on the principle of not 
 interfering, and leaving the parties to do the best they can 
 respectively at law. 
 
 In a case where A., in consideration of B. obtaining for 
 him a place in the excise, gave a bond for payment of 
 10/. a year as long as A. should continue in his office, the 
 Lord Chancellor ordered the bond to be delivered up, and 
 granted a perpetual injunction, with costs, on the prin- 
 ciple that such engagements were a fraud on the public, 
 and would occasion corruption and extortion in offices, by 
 having the profits of places separated from the places 
 themselves {z). 
 
 So in another of the cases above referred to (a) Lord 
 Hardwicke ordered a bond to be delivered up, which had 
 been given by the plaintiff to the defendant's wife, in con- 
 sideration of her using her influence over the plaintiff's 
 grandfather, who was an old man, to procure him to make 
 a will in favour of the })laintiff. His Lordship put it 
 partly on the ground of public policy, and partly on that 
 of undue consideration (5). 
 
 With respect to transactions falling under the head of 
 marriage brocage, although the general rule has been long 
 
 (y) Debenham v. Ox, 1 Ves. sen. (b) See also on this subject Smith 
 
 276; Keat v. Alien, 2 Vern. 588. v. Aykwell or llaytweil, 3 Alk. 566 ; 
 
 (s) Law V. Law, 3 P. Wms. 390 ; Amb. 66 ; Drury v. Hooke. 1 Vern. 
 
 see ahoHanningtonv. Duchatel, I Br. 412; Stribhlehill or Scribblehill v. 
 
 C. C. 124 ; Morrisy. M'Cullock, Amb. Brett, 2 Vern. 445; 4 Br. P. C. 144 ; 
 
 432. Hall V. Poller, Show. Pari. C. 76 ; 
 
 (a) Debenham v. Ox, 1 Ves. sen. Cote v. Gibson, 1 Ves. sen. 503 ; Tur- 
 
 276. ton V. Benson, 1 P. Wms. 496.
 
 •24 -.1 \> !>.. I i>..i"KI!I>l!«!H fl'AKT I. 
 
 wril hiIiIimI, llii I ' . •♦oiiir (lirtiri liiiH ill tin «l«- 
 
 rininiiH Us (<• till , '>'l ol iiitirf«r«in«- (CI 
 
 III Ihiirij \. //.... /u ./ , Ihr ruM- Hiiit, lliut tin* iiiuiriaKe 
 wiiH liri>(i::ltt aiM>iil witlmut lli«* loiiMiit of (In- ytuiii^; 
 wuiimiiM |)urrut«*, \\lio wrrr living;, uihI iIu- L»nl('linmcllc»r, 
 ftir that retuoH alone, «l«««Ter<l IkiimU nivrn ft»r |iriMMirinK 
 till' inurriuyr to Im* «ii'iivrn*<l u|» ami ii |Mr|Miuul iiijunr- 
 tiuii, uiid Hiiiil tlirrr wux u iiiiilrriul tiitirmi< <- Mlu-n* tin- 
 purticM wcri' ut tlirir omii (liH|H>Miil, tiiul mIhti* the |>urfiiU 
 Wi'Tv \\\ iii;^. 
 
 Ill Utribblrh'dl or Scrihhlrlull v. Jirettir, tin- rajM- wan 
 ti) s«'t uh'hU' a Uuyir allrj^rd to liuvr \n'vi\ yraiiti'd for |»r«»- 
 I'urin^ a luarriaj^t*. It a|i|M-ars that that fu«-t lia<l Ik-^-u 
 tri»'(l ami lU'irativrd hv two vrnli«-t.H at law, ami tlnTrfor** 
 the hill was di.sini^srd. Hut on appral to tin- IIoiim* of 
 Lonl»(/) till' h'luif wna «U'ilarf<l null. Mr. \'<Tiion, in 
 his n-jMut ot this ias«-, stat«> that thr r«v«rt*al of tin* dc- 
 vrvr was without r«uar<l to tin* \irdi( t-. Hut this w^rmi* 
 wholly iui|trol)al)lr. iUcause in tln('^>urt Im-Iow thf doc- 
 trinr was not di>|)ut(-(l, that if thr Irasc had Ix-on ^aino<l 
 hv fniud or an unjust t(»nsid«nition, it would Im* void, 
 and thr decree was apiinst the hill on the )t|M'cial ground, 
 that tin- fact of fraud tras nff/ntired. The Housf of I»rdH 
 therefore lould only ri\erse the dcerer, tm the in^'Jund of 
 the faets heinjjj otlHTwise than as they were found by the 
 verdicts. In /A/// v. Potter ((/), in w hieh the testator of the 
 appellant paviuii his addresses to a lady, <^'ave his bond to 
 nspondtnt's hnsl)and, to pay .>(M)/. in ten days after his 
 marriage, in procuring whieh resj)ondfnt's husband ai*- 
 siste<l, the bond was onlered to be delivered up, on the 
 ixround, it seems, that inarriaiies should Im* by mediation 
 of friends and relations, and not of hirelin«js. 
 
 (c) Sec Smith y. Avkutll ot llavl- (t) 2 Vcrn. 44.>. 
 tc*ll. 3 Aik. 5«i<3; Arab. 66; aoJ llic (J ) A Dr. P. C. 144. 
 ciMT* cited anit, p. 2'2, n. (u). T/f) Show. Par. C 76. 
 
 (d) 1 Vt::n. 41'2.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 25 
 
 In Cole V. Gibson (h) Lord Hardwicke expressed the 
 general doctrine, that in a case where a person liaving in- 
 fluence over a lady, enters into a contract to exercise his 
 influence over her for a recompense, such contract will be 
 set aside, not for the sake of the particular interest of the 
 person, but of the public ; and his Lordship intimated 
 that subsequent confirmations even by both husband and 
 wife would not rectify it. 
 
 The Court has gone so far in transactions of this nature 
 as to hold, that even though tliere should have been no 
 treaty or actual stipulation to connect the giving of the 
 bond with the marriage brocage transaction, and no alle- 
 gation in the bill to that effect, yet if the fact should appear 
 by the answer, that the defendant had actually assisted 
 the plaintiff in obtaining the marriage, and the bond has 
 been given as a reward foi' that service, the Court would 
 consider such a bond as in the nature of a marriage bro- 
 cage bond, and restrain proceedings on it(i). 
 
 It was held in an early case, at a period when such 
 bonds were not thought in themsrlves unlawful, that if a 
 patron of a Uving made use of a bond given by a parson 
 to resign, oppressively, as for instance to prevent him from 
 demanding tithes in kind, a perpetual injunction would be 
 granted {k). 
 
 II. The cases in which equity has refused to interfere 
 have been principally those arising on conveyances made 
 in order to give to a party a colourable qualification, to 
 enable him to sit in parliament, or to kill game. The 
 doctrine in these cases is laid down in a case cited by 
 Lord Eldon in Curtis v. Perry [i), in Platamone v. Sta- 
 ple (m), and in Brackenbury v. Brackenbvry {n). From 
 
 (/<) 1 Ves. 503. Ab. 86. 
 
 (i) CuHon V. Vuilun, 2 Kq. Ca. Ab. (/) 6 Ves. 747. 
 
 525; Witliamsonv. Gihoii, 2 Srli. & (m) Coop. 250; and see 9 Anne, 
 
 Lef. 357. cap. 5. 
 
 (fc) Durt,tm V. Sln,(ll^s, 1 Eq. Ca. (n) 2 Jac. & W. 391.
 
 2f) iTAVISO PROfBEDINCK [PAHT I. 
 
 tijf t'asr ciUhI ti) Curtly. /Vrry, nii«l tin* cime o( J'ltitn- 
 mone v. Sttiplf, it in to be collwU'tl tliut th«" ("^«urt \mII 
 recjiiiit? ihc Irwutl to Imvr Ucvn rtUcial, lliul ik, tin- colour- 
 ahlf (|unliliriitiuii to liuvr \hvu nctuully uHc-ci for the Iruudii- 
 Init olijrit r«>r «hicli It will* iiitenilcd, in oitler to tli»»)iluco 
 the of|iiity of th«« jjnintor. The C5»c refeirfHj to in i'urti* 
 V. Peny tH t' '• «1, "In thr • u bill fikil to 
 
 huvr u coii\< I a (|(iiili(i(-ati by iIk* {'laiiitili 
 
 to hi)i son, to cntibic him to sit in parliament, tfi^ j/Hrjune 
 hriiuf finxtrrrrtf, lh«" bill wan very prnperly fliHiiiif*Hi*ft by 
 Lord Kcnvon, with co»«t8 (;<). In Pluttunnfir v. Staplr, n 
 ront-t'harge was }»rttiitpd to give the defendant a coloumble 
 (|italitirntion to sit in parliament, l)nt the defendant never 
 became a candidate. (Jn this ground the (Joiirt, uilmittinir 
 the "jjenenil doctrine, that equity will not reliere ugainKt a 
 fleed made in fmud of the j)oliry of the law, held that there 
 was no c^round nj^ainsl the plaintiH 's equity ii(Kjn the statute 
 as a fraud on the law, or as beinj^ aptinst public pdiey, 
 and j^rantcd an injunction (y). 
 
 lint the expressions of opinion which fell from fin* onrt 
 in Curtis v. Pcrri/ niul Jinickenhury v. lirnrkmhunj, ap- 
 pear to repudiate this distinction. In Cnrtitt v. Pern/ the 
 question was, whether a meinlx'r of a mercantile firm, who 
 was also a member of parliament, could be admitted to 
 claim in equity an interest in ships allowed by him to re- 
 main registered in the name of his jiartner oidy, for the 
 purpose of enabling such ships to be employed in govern- 
 ment contracts, in fraud of an act of parliament called the 
 Contnictors' Bill, bv which members of parliament were 
 liable to |>enaltics if employed in government contracts. 
 And Lord Eldon held that he could not ; " The moment," 
 his Lordship said, " the jnirpose to defeat the |X)licy of the 
 law bv fraudulently concealing that this was his pro|x:rty 
 is admitted, it is very clear he ought not to be heard in 
 
 (p) 6 Vcs. 747 ; see also I Mad. (^) See alio Birr* r. Blagrmvt, 
 
 Ch. Pracl. 403, n. ( r). Arab. 265.
 
 CHAP I.] AT LAW AND IN OTHER COURTS. 27 
 
 this Court to say that it is his property (r)." In Bracken- 
 bury V. Brackenbury the case was this: A., the eldest son, 
 claimed a life interest by devise from his father, and B., 
 the second son, claimed the fee under a conveyance exe- 
 cuted subsequently to the date of the devise. The con- 
 veyance was stated to have been made for the purpose of 
 giving to B. a qualification to kill game, but it was never 
 out of the possession of the father, who remained in pos- 
 session of the estate, and received the rents. After the 
 death of the father, the devisee entered into possession of 
 the estate, and with it of the deed of conveyance. Some 
 time after, B., the younger son, obtained possession of the 
 deed from his elder brother, by representing that he had 
 made a bet that he was qualified to kill game, and that if 
 he had not the writing to show, he should lose his bet. He 
 then refused to return the deeds, and brought an ejectment 
 to recover the estate, on which A., the devisee, filed his 
 bill, and moved for an injunction to restrain the action. 
 On the matter coming before Lord Eldon, on an applica- 
 tion in which it was not necessary to determine the prin- 
 cipal point, his Lordship said, that both the father in 
 conveying to the younger son for the purposes stated, and 
 the elder brother in giving up the deeds for the purposes 
 of the bet, were lending themselves to a fraud ; and inti- 
 mated an opinion, that it was a case in which a court of 
 equity ought not to have interfered, but should have left 
 the parties to make what they could at law. And in 
 another part of his observations his Lordship said, "if the 
 father executed these deeds for the purpose which the 
 plaintiff alleges, viz. to make a fraudulent exhibition of 
 them (as proving the qualification of his son) to defeat any 
 prosecution that might have taken place against him by 
 the law of the land, if he lent himself to a purpose which 
 was contrary to the policy of that law, it might have be- 
 
 (r) 6 Ves. 747.
 
 •.^8 f^l AUMi I'RlH'BBIMKCili fl'AUT I. 
 
 (-oine a cuiisuifniblc (|IipmIiuii it tlir yuungiT huii hud gut 
 {MHiiietitioii o( tliciu* ilct*tiii, Mliclhcr n cuurt u( cf|uity Mould 
 Imvr doiif unv thiii^ t«> rrlirvr tin- futlict." 
 
 .Now urt III Urttckrnbury v. Hrachenbury tlie d«-«-di» wt-ic 
 never out uf the |KHMM'<i«ion of the fulhrr duniig hm hfo 
 tiiiii-. It iH Huhiiiittctl to the Uninied rrudrr thtii mi- •'ti,.-li( 
 til take I.ortI MUKui'm ohHervutiuii lu»l f|U(>trd with n ic-r- 
 ••iKT to thut fuel. 'I'hereforc, %o (ur an the fraud on the 
 |Kih('y of the (funic I.uwi*, th<' chimp would Hceiu to fall 
 within the |)riiuM|>Ir of I'lntawonr v. Stapir. I'urther, it 
 iUh'S not a|)|HMr by thr report, whclhrr the ih-rdK were in 
 fact |irtKlur«-d by the younger son to the party with whom 
 he ulU"4< d a bet,iu>r did any thini: turn upon whether such 
 was th«' fact or not. The opinion of I^»id llldon v^uh j^iven 
 entirely a> to the tirnt point, ujion the sup|)oiied fuel of the 
 f.illicr e\rcMitiiii( the '^'nmt lor the jnitjn>sr of a fniud on 
 llu- hiw ; und on the second |H)int, on the lart of the elder 
 son delivering the deeds to the younger, for thr pur/tose of 
 enabling him to eoniinil n fraud : and his Lordsliip appeunt 
 on neither point to have coiibide-red it inaleriul to iiujuiro, 
 whether the purjKis*; had actually been effected or not. 
 It is submitted, therefore, that from the dicta of Lord 
 Kldon in the two cases refcrr«'d to, it is to Ix.* collected, 
 that the principle on which ecjuity refuses its assistance in 
 this class of cases, is the doing, with the intention of 
 fraud, something which enables aiiollur to ctTnimit the 
 fraud ; and if that be the |>rinciple, how can its applica- 
 tion be affected by the circumstance that the grantee does 
 not use the power given to him uf committing the fraud ? 
 If the original vice of the transaction Ik* the iulctit to 
 enable the grantee to commit a fraud, and doing an act 
 bv which he is in fact enabled to commit such fraud, why 
 should the grantor l)e remitti d from the cons<(jucnces 
 which would otherwise attach to /lis liaudulent intention 
 and act, because the grantee for some reason, possibly an 
 lioii. -» .'>!■'. <]'>.-^ !)•>' carry the fraud ini" <fT«'.t ' A cas^
 
 CHAP. I.] AT LAW AND liN OTHER COURTS. 29 
 
 however was decided before Lord Hardwicke (s), which 
 was not cited in Brackenhiiry v. Brackeyihury, and in 
 which the very state of circumstances existed which is 
 alkided to in the passage of Lord Eldon's judgment, before 
 referred to (t). Li that case George Green, who was a ser- 
 vant of the plaintiff, prevailed on his master, over whom he 
 had got great influence, to convey an estate to him on pre- 
 tence of qualifying him to kill game. Though there was 
 a formal livery of seisin, he never was in possession, and 
 the rent was still paid to the plaintiff', who afterwards sold 
 that estate, and conveyed another to George Green in con- 
 sideration of his delivering up that, and upon the same pre- 
 tence as before, but the rent still continued to be paid to 
 plaintiff. These conveyances were executed at such time 
 as G. Green had got the plaintiff to live separate from his 
 wife, and imported on the face of them to be in consideration 
 of 3500/., but no money was ever paid or intended to be 
 paid. The plaintiff afterwards made a mortgage of his 
 whole estate, in which G. Green was not considered as 
 owner, and the pretence of mortgaging was to enable the 
 plaintiff and G. Green to travel. The money raised by 
 the mortgage was 5000/., of which 3000/. was paid to 
 G. Green and his wifej 1000/. to Thomas, the brother of 
 G. Green, and 1000/. to William Lock, the attorney em- 
 ployed in the mortgage, but in trust for the son of said 
 William, who also got from plaintiff two promissory notes 
 for 105/. and 123/., the one for procuring the money, the 
 other for his bill of costs. Lord Hardwicke treated the 
 transaction as a gross fraud, and set it aside ; no notice 
 being taken either at the bar or by the Court of the point 
 whether the plaintiff's having conveyed the estate for the 
 purpose of giving a colourable qualification to kill game, 
 would have any effect on his right to relief in equity. 
 
 There are other cases also in which equity has refused 
 to interfere between parties to a contract of doubtful or of 
 
 (s) Bridgman V. Gyeen,2yes. sen. 621, (t) Ante, p. 27.
 
 30 <iTAymo rnocEEDixn* [paut i. 
 
 ailmitliil illctinfility.on ihf ground of public |»olicy. JJiuh 
 in the /'Mrl of We$tmentk r. ConntetM of Westmrath (m), 
 
 an injuiulion • '-'I by I.«»t»l N\ ' " 
 
 luH wilr from ; A ^^ '"**' ^" '• 
 
 not contaiiiim» an indruuiity by the (ruBtc<» lo iht? hunbaiid 
 atjajn^t tli»* wiIi''h drbtw ; iiikI I/onI I'.l ' ' > m- 
 
 tfrlcrr, Ifttvinp; the |mrtir« to try li»o lt«-.. t llic 
 
 dcrd(jr). 
 
 And in nn rnHi«r ra»c, wlirrt- w n 
 
 entrrrtl into Iwtwcrn a Hnlith «iib|' ■ ;^ •• ... , i^r 
 
 tmdinp t«) the foreign country dunnj; n Innc of war, pro- 
 rifted peatr ahmiiti not he lihrly to take phicf hettrcm the 
 two coHntries at the time fin- fhippiiuj the tjoodt, thm wun 
 held n contnict to drfcnl the laws of the country ; und 
 althouglj at the time tlie trading actually commenced, 
 ))oaco had Wen e>,lahlished, vet an no i 'nnt had 
 
 been entered nito, the Court would not n y injunc- 
 
 tion to stay proceedings at law founded ufxin the old con- 
 tract. And it i<» to hv ob'»erve<l. that it in nf)l v 
 that the defendant should take an objection of ijh ; 
 as it is an objection which is not confnictl to the partien, 
 but exists as l)etween both parties and the public, the Court 
 will itself take it(y). 
 
 II. It is not easy to extract from the cases aljovc cit«*d 
 anv 'jieneral principle p:oveming the dis|K)sition of the 
 Court to distiniruish between those cases in which it will 
 interfere, and those in which it will leave the jiarties to 
 law. 
 
 In sonic of the cases it \vill have been perceived that the 
 
 (i.) J«c. 126. ' <nl bj 
 
 (O Since then, ihc . "'' diubttid 
 
 lion of (he vaiidiiyof Mp-i . c<jaity will 
 
 bu b««n ducusscU, and t!i«i( valtJu^ Uilw>c«. >pt.t..:.c ^ito.BiADCcof Mirh ao 
 
 established by the Court of King's agreemc-' }' --.'-: \. h-.' A, 1 i'^xtn, 
 
 Hench ; Jtt v. Thurlou-, 2 Har. & i S«u 
 
 ('rcs.547; 4 Dowl. & Ry. n. Ami () : i Mer. 
 
 ID a latecas« id ChaDcery it wu hel!
 
 CHAP. 1.] AT LAW AND IN OTHER COURTS. 31 
 
 Court, treating the contract as clearly against public policy, 
 has acted positively against it («). In another, the Court 
 thinking the validity of the deed doubtful at law on grounds 
 of pubhc policy, refused to restrain the party claiming 
 under it (h) ; while in others again, the Court holding the 
 agreement clearly against public policy, has also refused to 
 act positively against its being enforced at law (c). 
 
 The authorities seem however to justify the following 
 as general propositions. Istly, That the Court will in no 
 case give any active support to instruments founded on 
 fraud, or on considerations against public policy ; 2dly, 
 That in selecting between positive interference, and leaving 
 the parties to law, it will take that course which will be 
 most likely to defeat, not the effect of the instrument, but 
 the success of the fraud originally intended by it. 
 
 15. On the same principle as that which is applicable to 
 the cases we have been discussing, equity will interfere 
 where parties set up a contract apparently fair, but in fact 
 entered into fraudulently, merely for the purpose of covering 
 an usurious transaction. 
 
 Where a partnership transaction is merely colourable for 
 the purpose of obtaining under the name of a partnership, 
 usurious interest for a loan, equity will treat it as a fraudu- 
 lent contract and relieve against it. But the Court will not 
 relieve against a transaction as in fraud of the usury laws, 
 merely on the ground that the lender, cither by the very 
 nature of the contract itself, or by some of its possible con- 
 sequences, may in fact, as between him and the borrower, 
 secure a rate of interest, which, taken simply as such, would 
 be usurious. Thus, where a party brought a sum of money 
 into a partnership under a deed of partnership, by which it 
 was expressly stipulated that as between himself and his 
 partners he was to have no concern in the business or lia- 
 
 (a) Law V. Laic, 3 P. Wnis. 390. (c) Evans v. Richardson, 3 Mer. 
 
 (6) Earl of Westmeath v. Countess 469. 
 of Westmeath, Jac. 126.
 
 32 *TA\l!<«i PHOtKBUIKOS h'KUl I. 
 
 bility, ami wuh to rti-rivc u yearly »um, which wus «m|ui- 
 Viilcnl to limn- ihaii U j^nl iiiUmchI «»ii hi» money ; uml ^^a" 
 to \x; tv\»xni ut the end ut (he term ihc whule liUin, uiid il 
 wuK churj'tMl un the |>artnrrT>hi|) piufierly ; yet, «• he wiui 
 liuble as to all the rent of the wurUI, fur the dehlH of the 
 purtuenthip, the (.'ourl heUI ihul the eonlnui wuh not 
 UMuriouM ; und as the uiikwci denied tlial it wum niert;)y u 
 colourahh- partnenthip, und uverrcd lliut it wun bona JiJe 
 iutvndrd uh ti pnrtnctithip, iin<l not an a necunty for a h»on, 
 ihc Court (liHHoIvetl an nijunction aguuint the defenduiit*. 
 proct'odnig at hiw u|>on u bond entered into for Mcuring 
 the |Mrf»)rniunre of the ai;r«'en«cnl (f/), 
 
 A^aui : where A. owed money to B., iiml H. m heu of 
 imn)c<iiate payment agreed t<> take ho much long aniiuilieM 
 ut a future time, at the then price thereof, and in the mean 
 time tlie diviilt nds ; tin- debt to coiistitule pait of the pur- 
 chase-money; and as to the stock, thi then price thereof 
 to be nsccrtiiine<l by refiieiicc to a ninliial friend ;--and 
 the construction put by the referee had this ert'ect, that 
 tile stock having risen in price between the date of the 
 agreement and the completion of the buninesH, the creditor 
 had the benefit of such rise. Ihnry was denied by the 
 answer, and there did not ap|)ear to have been any thing 
 like usury in the determination of the referee. I'nder these 
 circumstances the transaction was held neither usurioin*, 
 nor within the Stock-Jobbing Acl(^); and the plaintifl 
 having got the discovery, the Court thought he had all he 
 could ask, and had no equity for an injunction (f). 
 
 On this subject we nnist notice a case before Lord 
 Hardwicke, in which a tenant for life in consideration of 
 1M»0/. demised to A. for W years, if he should so long live, 
 and A. redemised for DS { years at 1J()/. a year, redeemable 
 at the end of one year. 
 
 The tr'iiaiit for life, afterwards, m coiiMdcratioii of 8(>0/., 
 demised his estate to H. f«>r W years, if he should so long 
 
 (d) Ftrtd.tv V. //.Wrrn.Jac. 144. (f) CUrk r. Cirwtid, I Mad. 511. 
 
 (f) 7 Geo. 2. c. fl.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 33 
 
 live, and B. redemised for 98| at lOOZ. per annum, with re- 
 demption at the end of 3^ years. A. assigns his annuity to 
 B.; and B. dying, tenant for Hfe confesses judgment in 
 ejectment to B.'s executor for securing arrears. 3| years' 
 arrears being due, the executor arrests the grantor. Lord 
 Hardwicke observing that there was no suggestion of fraud 
 or imposition, and treating as trivial the two objections to 
 the transaction, that the time for redemption was post- 
 poned, and that the first quarterly payment was to be one 
 month after the date of the deed, granted an injunction till 
 the hearing, on the grantor's paying the principal and 
 arrears into Court, and said if the grantor's life had been 
 insured, he would have done it on his paying principal and 
 interest {g). On what ground his Lordship granted the 
 injunction is not stated, nor is it easy to see what could be 
 the principle of the decision. That there was no usury in 
 the transaction seems clear, and if there was no suggestion 
 even of fraud, there seems no ground for assuming that at 
 the hearing there could have been a decree to relieve against 
 the annuity. 
 
 16. But if fraud in the party obtaining a legal title 
 will prevent him from being permitted to use it, on the 
 other hand, fraud in the party from whom the title passes, 
 will have the eftect of preventing the parties taking it 
 from losing the benefit of it ; where if there had not been 
 such fraud, they might not have been permitted to use 
 it. Thus, in a case where the defendants had dealt with 
 A. as owner of a business, and he became bankrupt, and 
 they then found that he was in fact only the agent of 
 other parties to whom the business belonged, and against 
 whom they recovered judgment at law, the Court re- 
 fused to restrain them from pursuing the proceedings at 
 law ; although after having obtained knowledge of the fact 
 
 (^) Searle v. Lord Carpenter, Amb. 242. 
 D
 
 34 hTAYlNCi FiiOCKKUIMGM [I'AKT 1. 
 
 of A. being only ftii u;^**"', they h-^A i.5i'ii«<1 his ccrliti- 
 caU'(A). 
 
 17. Ill -Ml. \\ ' ' i'h b- I.-.- - . .. .i - -laUtl that a 
 
 party HurtI mi a | . : iiinuniiur on u lilr, iiitiy file n bill 
 
 again«t the plaiiitilt at Inw, culling u|x)ii him to net forth 
 whcthrr hi* amnt or br««ker Hid not n-pn-wnt tlu- (kthoii 
 whofu- life wiiH uihiinHi III a ntute of hiullh dith rent (torn 
 the truth, \Oiich fnuul ntai/ Itr a ijround fur an injunction to 
 ttittf t/if action. The |ruriu-<l imtlicjr citch ii<> authority for 
 the latter ponitioii, anil uitlioui^li no ilotibt a lull of di»- 
 covery may be muintained, it neeuiH very doubtful whether 
 a bill for an injumtion can ; beraune at law the eiiiitracl 
 between the insurer and iiihured is vacated by fraud, and 
 CourtM of c<{uity do not assume in general nny jurihdiclion 
 in f|uestions of insunmoe, excejd for the |)urjH>w of faci- 
 litating the trial of the validity of the |)olicy. 'llius when? 
 the facts on which the liability tumn have taken place 
 abroad, equity will ^;mnt a commishion to examine wit- 
 nesses, and will ret»tniin proceeding!) ut law until the return 
 of the connnissioners(A) ; or on Buspicion of fraud will compel 
 the plaintiff at law to make discovery of the circumstances 
 within his know ledge (/). But except in these cases all 
 issues upon j)olicies of insurance must l>c tried at common 
 law (r;i). However, in a caae in F. Williams (n), where a 
 merchant, who having information of his ship being in dan- 
 ger, such as to induce him to believe that probably she 
 was lost, insured without informing the insurers of those 
 circumstiinces, on a bill for an injunction, and to have the 
 policy delivered up, it was decreed that the premiums 
 being returned, the policy should be delivcretl up. 
 
 (A) Taylor ». Shtppard, I Vou. it C 436; D# dhtlt'-ff r. Gotrrnttr and 
 
 Coll. 271. Comp. of I^ndort Auurancr, where m 
 
 (i) Vol. 3, p. 400. demarrcr to t bill for payment of the 
 
 (fc) Chitty V. Stiuin, 2 Atk. 369. sum intartd by a policy was aJlowed. 
 
 (/) S€c Parke on Ids. c. 20. (n) Dt CoUa v. Scandrtt, 2 P. 
 
 (m) I'arkc, ibH.; and 4 LU. T. W i'l. 170.
 
 CHAP. 1.] AT LAW AND IN OTHER COURTS. 35 
 
 18. Under the second division of this section fall the 
 cases in which parties having legal rights, originally fair, are 
 guilty of either positive acts or of acquiescence, actually 
 or constructively fraudulent, whereby they vary, or permit 
 to be varied, the rights and liabilities of other parties, to their 
 own advantage and to the detriment of such other parties. 
 
 In Aston v. Aston (o), Lady Aston was jointress without 
 impeachment of waste, except in pulling down houses, and 
 felling timber ; remainder for life to her son, without im- 
 peachment of waste generally ; remainder to trustees to 
 preserve ; remainder in tail to the issue of the son ; remain- 
 der to his eldest and other sisters successively in tail. The 
 son was permitted by the jointress to cut timber to raise a 
 sum of money for him ; and, afterwards dying without 
 issue, the sister becoming tenant in tail, brought her action 
 against Lady Aston, the jointress, to recover treble damages 
 and the place wasted, and had a verdict. There was evi- 
 dence that the plaintiff at law had stood by, and acquiesced 
 in the waste during the hfe of the son ; and the Court said 
 there ought to be relief. There was evidence of an express 
 consent by the defendant to her brother's cutting down the 
 timber, or a general tacit consent or encouragement on her 
 part to do it ; and if that was given during the life of her 
 brother, as circumstances then stood, it would be very un- 
 reasonable to suffer her or her husband, after the brother's 
 death, and upon a change of circumstances by the value of 
 the timber becoming greater, to take advantage of it ; and 
 the plaintiff was restrained by perpetual injunction from 
 proceeding on the verdict. Cawdor v. Lewis (p) was a case 
 of the same character. There it appeared that the ances- 
 tor of the plaintiff at law, being the agent and solicitor and 
 confidential adviser of the ancestor of the defendant, had 
 suffered him to erect buildings on the land in question, and 
 to believe it and treat it as his own ; and the Court, under 
 these circumstances, restrained the defendant Lewis from 
 proceeding in an action for mesne profits, although he had 
 
 (o) 1 Ves. sen. 396. (/>) 1 Vou. & Coll. 427. 
 
 d2
 
 'id kTAYI.Vti I'lUK'i'KDIHUh 
 
 L' 
 
 Mtulilihhnl !'■''. ' I' '' f 
 
 Huid, '• It 1 
 
 iiitcrfcrriirr, where ctio (lurty hIuikIm by tiiid uUuu« uiiuthcr 
 
 t(i ii|mmhI 111. ... . f 
 
 lilH lillr. / ' _ t 
 
 nil ngciil who cxiycnd* hm |>niici|>urii money upon In* own 
 
 laml. \VI 
 
 nllowuni-c t . , 
 
 tcniiiiuii bv the ri'Mill i>( the hcuriiiK. ruder lhi*fM: cm 
 
 cm ' '. i«)h' lo ull(»w tli 
 
 lu ! : , .1 r inij^hl Im- ihe . ! 
 
 coin|H>i)Hulioii here.n liiiil for iiicune profiU would be utterly 
 iifti-lcMt ; iiiul if ertrrl run only In- \;t\ri\ to Lord < 
 cltiini in a Court of equity, why hIumjUI I all<'u 
 party to go to law aiul put the money in hin ] 
 
 So where n party having title h; i m 
 
 possession with an nj)parent title to ;......; ;. ' 
 
 has stood hy and alli)\vcd the tcnantn to 
 money in im))roveincnti*, he will n<»l bo cntliMcfi at 
 under a decree in a c: • ' 'Inch tin- tenanti* »•. 
 paitics) restoring the j u to bin). (f» evict 
 
 tenant.s, nnd will be re&tmmed from briii Mncnt by 
 
 |)crpeliial injui But, if in Buch < .' ' i 
 
 V. Aston, the \. 1 iK'en |)ermitte<l by i \ 
 
 ment, it seems doubtlul whether ecpiity would interfere, 
 because that may be pleaded at law (r). On the same 
 principle, where the creditor of a testator 8too<l by for be- 
 tween six and seven years without putting in any claim, 
 allowing all the debts to Ik; j • n, and allow- 
 
 iiiLj the executor to take a n < f the t< :^ta- 
 
 tor's in his own name, and to deal with U as his own, he 
 was not permitted to restnun the creditor of the executor 
 from seizmg such leasehold in execution ; the creditor of 
 the executor swearing that the lease had been always 
 treated by the executor as his own property, and that on 
 the faith of its being such he, the defendant, had advanced 
 
 (g) *A»V ». dough, I 1 .I'l .s^ r.. 1 An. I IHJ. 
 436. S«e also HardctsU «n. p. 399.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 37 
 
 his money (s). And in a very recent case, the plaintiff, a tea- 
 dealer, employed the defendant, a broker, to purchase on his 
 account tea from the East India Company, with the broker's 
 money, and left the tea warrants in his hands as a security, 
 and knowingly allowed him to pledge them with another 
 person for money to pay the brokerage due for the tea ; 
 and permitted the broker, from time to time, to promise, on 
 the part ofhimself and the plaintiff, payment to the pawnees, 
 in order to stave off threats made by them of selling the 
 tea warrants. On this state of things, Lord Cottenham, C. 
 without giving any opinion on the legal title, or on the 
 point whether if the pawnees had come for assistance to 
 enforce their title, the Court would have assisted them, 
 held, that the plaintiff had, by his own conduct, precluded 
 himself from asking the interference of the Court in his 
 favor, and accordingly refused to restrain the defendants, 
 the pawnees, from proceeding to sell the warrants (0. 
 
 In this class of cases may also, perhaps, be mentioned 
 the late case of Edgecumbe v. Carpenter (w). In that case, 
 the testator had, by his will, assumed to devise real estate 
 upon trust, with life interests to his son (who was also his 
 heir-at-law) and to other parties, with remainders over. 
 The son acquiesced in the will for thirteen years, and con- 
 curred with the trustee. Carpenter, in granting leases and 
 other acts. A bill was then filed, with the concurrence 
 and at the instigation of the heir-at-law, by certain of the 
 cestuis que trust, among other things to establish the will, 
 and to remove the trustee. Carpenter, the heir-at-law being 
 made a defendant ; and pending this suit, the heir-at-law, 
 being advised that the will was invalid as to real estate, 
 brought an action of ejectment against a tenant, and ob- 
 tained a verdict. He then proceeded to bring other eject- 
 ments, employing in these actions, the object of which was 
 to defeat the will, the same attorne}^, who was solicitor for 
 
 (s) Ray V. Ray, Coop. 264. a dillerent liead ; but in substance it 
 
 (t) Nicholson V. Hooper, 4 i\Iy. & illustrates the proposition discussed in 
 
 Cr. 179. In strictness, perhaps, this this section. 
 
 case should have been mentioned under («) 1 Beavan, 171.
 
 ;JS MTAVINU PBOCKBlJlKGii [I'AKT I. 
 
 the plaiiitifT in tli ' ' ''^1> tl»<^ 
 
 will, rmlcr ll.. ^^ 't- 
 
 held thttl ihc ot(iun» of cjcclmciil uujjlil to Ix: sUiyetl nil 
 
 fuitlicr t)rilcr, and nftrrt-tl ll I "'- 
 
 thtT ihe ttUhUrc. (Jurjxiitcr, ^f 
 ejcctnifiit, or take oiiy pruci-rtiing* for llic purpoiic of 
 cttubliKliiiij; tlio will. 
 
 l:». h IUUI.I n«»l be ovrrlookwl that the general princi|>lc 
 of ti iH not I ■'•*, hut fniutlulcnl ihuliiig or 
 
 acMjii..- Ami li- . . ■.. »n huch ciiHt-s it i* put u|x>ii 
 
 the plaintill to prove, not nurely to ruiM: u prohuhic conjec- 
 ture, hut to show upt»n hi|4hly pruhahic a case 
 ol hiul fuith uiul hull conjMieii •• ' '' lut (x). 
 
 In the ease referred to, the ent for 
 
 n lease claimed n longer term, on ihe grouiifl ol having 
 given notice of l! inent to the lundl<<rd. and having 
 
 Kent him a draft i i*ueh extended t«riu, and having 
 
 then laid out a considerable sum in repaiis.uiid the landlord 
 having taken no i ' f the |)hiin- 
 
 titf ; but the Ini. -I he knew 
 
 nothing of the repairs until they were complctetl ; the Court 
 held that on timt point there was not enough to sustain 
 the bill, tlie pluintiff having failed in proving with sulhcunt 
 force that the lessor had knowingly pcrmittetl hira to do 
 those acts which the lessee would nut have done, and the 
 other must conceive he would not have done, but upon an 
 expectation that the lessor would not throw an objection in 
 the way of his enjoyment. 
 
 20. Another class of cases falling under this division of 
 the subject, is that where a creditor having a title at law 
 oriijinallv fair and equitable against a surety as well as 
 against his principal debtor, by some transaction with the 
 principal debtor, varies the position of the surety, and 
 thereby taints his legal title with constniclivc fraud as 
 aiiainst the surety. Thus it i'- fmnlv <f ttkd in rquity, that 
 
 I I'cr Lord KIJoD \a l '■* '•
 
 CHAP. ].] AT LAW AND IN OTHER COURTS. 39 
 
 where a creditor gives time to his principal debtor without 
 the consent of the surety, by so doing he discharges the 
 surety ; that is, if time is given by virtue of positive con- 
 tract between the creditor and the principal {y). 
 
 This appears by many cases. In JVisbet v. Smith (z), 
 Nisbet was surety in a bond to Smith, who, not being paid 
 at the stipulated time by his principal debtor, was required 
 by Nisbet to bring his action against such debtor. Smith 
 accordingly brought his action, but compromised it, agree- 
 ing that no execution should issue on the j udgment for three 
 years beyond the time originally stipulated for, if the in- 
 terest should be regularly paid. The plaintiflf Nisbet filed 
 his bill to have a declaration that the bond was satisfied 
 as against him, and to have it delivered up. Lord Hard- 
 wicke decreed a perpetual injunction on the ground that 
 the creditor could not, by any private arrangement with his 
 debtor, oblige the surety to remain liable for longer than 
 he bargained for, contrary to his express covenant (a). 
 
 Again, in a more modern case (6), the defendant White 
 was the executrix of the obligee of a bond given by Sir F. 
 Blake, who was the younger son of Sir F. Blake, and one 
 of the sureties in the bond ; and she had brought her 
 action against the plaintiff on the bond. It was alleged 
 by the bill, that a parol agreement for time to pay the bond 
 had been entered into between White the obligee, and the 
 agent of the devisee and executor of the obligor, who was 
 also his heir, in consideration of payment of all the arrears 
 of interest, and the future payment of the interest from 
 time to time six months in advance. The Court thought 
 the transaction afforded so much doubt whether the plain- 
 tiff at law could sue on the bond after her testator had 
 accepted interest by anticipation, that the action must be 
 restrained by injunction until the hearing (c). The same 
 point came before the House of Lords in a case from Leland, 
 
 (y) Samuel v. Ilouarlh, 3 Mer. 20. 
 272. (/>) Blake v. White, 1 You. & Col. 
 
 (s) 2 Br.C.C.579. 420. 
 
 (a) See also Rees v. Berrington, 2 (c) See also Eyre v. Bartrop, 3 
 
 Ves. 540; Bouhbee v. Slubbs, 18 V'es. Mad. 221.
 
 40 »TAYl!(fi PROCKBOINOh [pAHT I. 
 
 ami wan deruli-d in eonfunnity nith the iloctriiie of the cuwi 
 
 ulrtuiiy ciiJtl ((/'. 
 
 And HI .Sw//y v. Mu<yrr(r\ n iwr^mi, ttcliii;; ui tl»c ogent 
 of nndtlicr, uccr|ilrtl t. (or llic honuur of A. 
 bilU.lr . > ..... I I . y . 
 
 unii It . 
 
 vru* i-nlitlcil to n lien, wuh dirrctrd tiy ituch |)nnci|ml to 
 
 I , . I I 1,1.1 . . I 
 
 nil' 
 
 ol. 
 
 with the |jnrti('N rluiinin;; Mubject to the hen to »ell the 
 
 I" . .. 
 
 woiiUI huve b<'cn hahlcuver tti A.; llic Court uf Kxchc<|ucr 
 reKtriiMird huu from [ ' .<\er thi- 
 plniiititi' in equity to ; ' t. And 
 here may be noticed ul»o a cafto, where |Nirtie« having ac- 
 ceded to III; 
 KOUH, wluu. 
 
 not pcnnilted afterwardt* to use that debt for the pur, 
 of pullin;^ the tlel)lor in a [X>!>ition to be 
 
 Act of 1 &i 2 Vjct., c. 110, licct. 8, to hu . ii .i .ui 
 
 act of bankruptcy (/). In the case refrrred to, an ob- 
 jection was taken to the jn of the < 
 ground that the Bunkrupt« s ( ' n had juii~<. 
 Court of equity as well as law, and that an u 
 could not be granted to prevent a party suing out a fiat id 
 bankruptcy. But the Court said that th. ' ■ ' -iptcy 
 Court could not interfere in that !«tagcof the pi' -,bul 
 
 must let the atTair go on to the fiat before it could do jus- 
 
 1 . 1 1 . » till 
 
 ti< ' was n< 
 
 all , t."cd on 1: 
 
 this was not an injunction to restrain a party from suing 
 out a fiat, but to jirevont tlie<' ' " " " •' 
 
 agreement which they had th. 
 
 using the debt of the plaintiff for the purpose of proceed- 
 ing to take out a fiat against him. So if a tenant having 
 
 '\tnk .J IrtioMd *. '■ ' ' ■ " ^ ''■ ^I
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 41 
 
 disputes with his landlord, touching the terms of the hold- 
 ing, has given a replevin bond on a distress for a year's 
 rent, and then enters into an agreement with hira to refer 
 their disputes to arbitration, the surety in the bond is dis- 
 charged ; for by the agreement the landlord prevents the 
 tenant from doing that which the surety had bound him- 
 self that he should do(^). 
 
 The rule as between creditor and surety applies equally, 
 though the surety should know the fact of time being given 
 to the principal debtor ; to take the case out of it, the surety 
 must expressly consent. But if the time given is not by 
 positive contract, but the case is only that the creditor is 
 inactive, the surety will not be relieved in equity (A). 
 
 But although the creditor may, if he chuses, remain en- 
 tirely passive, he cannot act and then withdraw his act 
 without the consent of the surety (i). Thus if he takes the 
 goods of his debtor in execution, and afterwards withdraws 
 the execution, he discharges the surety both at law and in 
 equity {k) ; but if after such withdrawal the surety makes 
 a fresh promise to pay, he renders himself liable, not as 
 contracting a new, but as reviving the old debt (l). And 
 on these grounds, in a case where there being two sureties, 
 the creditor took the goods of the debtor, and then with- 
 drew the execution; and then one of the sureties, with notice 
 of the withdrawal of the execution, gave a fresh promise to 
 pay ; an injunction was sustained against proceedings at 
 law by the creditor, on the terms, however, of the surety 
 paying the money into Court for which he was surety (m). 
 
 But if a creditor cannot by his own act vary the extent 
 of the liability of the surety, on the other hand a surety in 
 a bond cannot in general, by his mere intimation that he 
 will no longer hold himself liable, discharge himself from 
 his liability, without the acquiescence of the creditor. 
 
 (g) Bowmaker v. Moore, 3 Price, (/c) Mayhew v. Crickett, 2 Swanst. 
 
 214. 185; see ibid. p. 191. 
 
 (ft) Smnuel v. Howarth, 3 Mer.272; (/) Ihid. 
 
 see also 6 Ves. 734; Eyre v. Everett, (m) Mayhew v. Cric/>:e«, 2 Swanst. 
 
 2 Russ. 381. 185. 
 
 (i) 6 Ves. 734, 2 Swanst. 191.
 
 4S KTAYINO PHlM-eKUINOd [PART I. 
 
 Thus in ^ !<.. who 
 
 iii>t jtayiit^ i..- . •«• (lou 
 
 aj;iim<it A., *»ho ' ict 
 
 ihry had ilrpnvrti f ol all riaitn« B*;aiiwt htm ; 
 
 jirnthnu ihr BctKifi i. -. .imr ♦ • V <; thr crrditoni 
 
 j»rt»vc<l timirr ihr ri»ninu*"»"4v «" lh«« l»iinkrupt*t 
 
 ccrtificttlr. nt>twiih»( Uh«»ui'h 
 
 Jkj (lid , ■ ' ■ ' • 'hry 
 
 M^iud ; ' ''fi- 
 
 nite would not hare itrrn ohlainr<l hnd thry not tifntMi >(• 
 Tlir arlioii lh«n pr.M-rrdrfl, nnd the rrifhlor* hoTing olv 
 tiiiiuHi a vndit-t, A. tilrd Inn lull for nti injunction to stay 
 execution. 1*hc lx>nl Chancellor held that no r<]uity «ro«e 
 ill favour of thr plainlifl" «»ul of the condu ' ' ' dcfcnd- 
 ant.H, in niuhlin^ the lMink.ru|>t (o ohtaiii In itc As 
 
 thr law then Htoud, hit Ix>r(Uhi|i haid, " the surety might 
 t;o in undi-r th<- < 'U and prove : he had tliHtincl and 
 
 imle|M'nd«nt n^' ^ own ; ami if lie «lid not chcxMie 
 
 to take the ruunM* nhioh would enable him to u^Hort ihoM 
 rii;ht.««, he could not eX|>ert aid from a ('<»nrt «»f e»juily (a)." 
 Nor will the case be altered by the lenns of the bond bang 
 indefinite an to durution. Thus when? A. wa* Mirety in a 
 btnid, to secure the due accountint; of B. dir ■ 'Hi- 
 
 tinuini; in the service of C, nnd no time was p: J oa 
 
 to the dunition of such service on either side, and A. died, 
 and his exfcutrix j^ve notice that sh<- would no lon;;er he 
 liable; C. did not answ«r the notice, but look sccunly 
 from other sureties ; H. died, leaving deficiencies, and C. 
 broujjjht an action against the executrix of A., who ob- 
 tainc<l the common injunction to slay the proceetlinjjs. On 
 a motion to dissolve the injunction, the Court said " that 
 0. never gave any intimation that he did not consider 
 the executrix a'* continuing liable under A.'s bond; that 
 C.'s conduct did not o|)cnitc in any manner upon her;" 
 nnd dissolved the injunction (o. A moiion was afterwards 
 made before the Lord Chancellor to discharge this order, and 
 
 («) fimrM V. Lmrr, 2 Rum. ^ > ' ,2 Sim. 2&3.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 43* 
 
 for an injunction : it was refused with costs, and principally 
 on the same grounds (p). 
 
 It must be observed also, that an injunction will not be 
 maintained to restrain the obligees of a bond from suing the 
 surety, because the obhgees have lent a further sum to the 
 principal obligor, and taken his separate bond for it, nor be- 
 cause they have simply abstained from suing him, not ex- 
 pressly giving him time ; for, as already noticed, the surety 
 is not discharged by the mere passive conduct of the cre- 
 ditor in not suing, but he must himself use diligence, and 
 take such effectual means as will enable him to call on the 
 creditor either to sue^ or to give him, the surety, the means 
 of suing {q). 
 
 21. There is a class of cases in which the doctrine of relief 
 against fraud has been carried to an extent which seems 
 almost to defeat the very object of that doctrine, and to 
 repress fraud in one party by supporting it in another. I 
 allude to the cases in which persons having concealed the 
 truth, or made false representations respecting their legal 
 and fair claims, for the purpose of enabling fraud to be 
 committed upon others, or upon the policy of the law, have 
 been restrained by equity from afterwards enforcing their 
 claims, even as between themselves and the parties to the 
 fraud. As for instance, in an early case(r), a woman, upon 
 a treaty of marriage, not having as great a portion as the 
 intended husband insisted on, induced her brother to let 
 her have 160/., and gave him a bond for repayment of 
 it : the husband knew nothing of the transaction. The 
 husband then died ; then the wife died, and made the 
 plaintiff her executor. Then the brother, the creditor, 
 died, and his executor put the bond in suit against the 
 plaintiff. The Court restrained him by perpetual injunc- 
 tion from proceeding to recover upon the bond. It was 
 insisted that the bond was good against the woman, she 
 
 (p) 4 Russ. 581. (r) Gale v. Undo, 1 Vern. 475. 
 
 (y) T.yre V. Evcieil, 2 Russ. 381.
 
 •14 MA\IN«. riUH l.tDI >«.f» [r.\HT 1. 
 
 Ill . ' >1 that wuuld 
 
 beM. 
 
 So 111 litdmttn \. Ji llic 
 
 luurriu^f ol the pluiitlilt, - . ^ >•»- 
 
 dcbtcd by boiul in iftX)/.. the pluintili 'h futlicr wu» in- 
 tlurtt) to coiiM-iit to lb- ivcr- 
 
 injj up lUv Umii, iht- bi ... . ^ , new 
 
 bond ; but tbr liimlmnd ^avc a ruuiitrr ImjikI (u bi« brother 
 to iiKlriiiiiify bun. The ( ourt hcKl lbi» u fruud, un<' 
 the brotbrr to d« livrr up tbf countrr bond. And u. .. > .. 
 even ut hiw (/ ), where u note wuh ^iven by A. to bin brother B. 
 fniuibih'ntly to torwurd the uiurnuyr of H., by reprewntinj; 
 him to be II man of fortune. A. after vvartln reculle<l the 
 note, and on a motion to net uside nn auurd made by urbi- 
 trutors, Lord Munftfield, C J., thuK stated the law : " where, 
 u|)on I : ' of marriau'f, tliird jxr.^ons reprrwnt any- 
 
 thing 1 m a li^hl dilUrtnl fiom the truth, even 
 
 Uiough It be by collusion with the huftband, they Hhall be 
 b<ii ' ' ' ,' ' ■ iH-r in wbiili tlify 
 
 re J lo be. And the 
 
 husband alone is entitled to relief, us well us when the for- 
 tune, Arc. so niisre] I ' ' nled 
 on the wife; for no i , is a 
 defence, any uioic than as a ca lion(u)." 
 
 In Titrtun v. Hensoniv), the cum ;;iis. A., on his mnrriage 
 with U.'s daughter, was lo ha\e a portion of lOOO/., in 
 consideration of which A.'s mother enabled him to make a 
 settlement ; but A. secretly agreed with B. to pay back 
 lOlK)/. at the end of seven years. B. died, and A. then 
 sought to be relieveil on his bond. It was held by the 
 Master of the Rolls, and on apjieal by Lord (chancellor 
 Parker, that he was so entilleil, both against the executors 
 nnd tho creditors of B. : and Lord Chancellor Paikcr, on 
 
 • m. 348. Vera. 466; Turtom *. Bttu9m,2 Vero. 
 
 (: , uo-jion r. MoHiffiori, 1 W. 764; and I I*. Win*. 496. 
 I»l>ck. 3«>3. (i) 2 Veto. 764.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 45 
 
 the appeal, stated, that the parties themselves to such an 
 agreement were entitled to relief, " for so," said his Lord- 
 ship, " were all the precedents." 
 
 But in cases of this kind, where equities are equal, the rule 
 qui prior est in tempore potior est i?zj2«'e applies, and there- 
 fore in a case where, on the treaty for the marriage of B., A. 
 his father made a settlement for the benefit of his son and the 
 wife, reserving to himself power to settle (out of the settled 
 premises) 100/. a-year on any after-taken wife of the father, 
 on payment of lOOOZ. to the son. On the treaty for the father's 
 second marriage, the son released (without the privity of 
 his wife) the 1000/., but took a bond from his father for 
 the payment thereof, which bond was so given without the 
 privity of the intended second wife of the father or her re- 
 lations. The son after the marriage sued on the bond, and 
 the father brought his bill in equity to be relieved. The 
 Master of the Rolls held tiuit the father should not be re- 
 lieved ; for that whatever arguments could be made use of 
 in favour of the wife of the plaintiff, to prove that he 
 ought to be discharged of the bond, were good on behalf 
 of the son and his wife to prove it ought to be paid : that 
 the release was as much a fraud on the son's marriage, 
 as the bond was on the father's ; and that as the agree- 
 ment on the son's marriage was the first, it ought to have 
 the preference ; and the only relief that could be afforded 
 to the father was a perpetual injunction, on payment of 
 principal, interest, and costs {x). 
 
 In some of the cases above-mentioned, it is to be ob- 
 served that the instruments given were originally without 
 valuable consideration, and the transaction altogether based 
 on a fraudulent purpose ; but the leading case on this sub- 
 ject is Neville v. Wilkinson {y), in which the legal title was 
 originally fair,' and based on a valuable consideration, and 
 yet the plaintiff at law was deprived in equity of the benefit 
 of such his legal title, because he had so dealt with it as to 
 
 (j) Hoberts V. Roberts, 3 P. VVms. 66. (y) 1 Brown C. C. App. 543.
 
 46 HTAYIMi I'UOCBKDIMGft [PART I. 
 
 mukc It till iiirttrumenl of frmud on n (bird |)urty. In that 
 cum; the (JefciHlutit ua» llie pluiiililfb »ohcitur, and liuving 
 hud vurumk |>rciiniiiry t u* with hiiu, liud rluims 
 
 n^uiiitt iiiin for a vuluut'.- . ..-.■!< rutiuii lo a ^..l. . .1.1,. 
 
 auiuunt. On (he uccanion (if t)M> filnmiili 'f> 
 for a uiumu^c with the- ' , the dcfriMj- 
 
 aii(MtiM iiiihirrd liv tht- ; !.>••! i,,, |....inti(i tu uiuko 
 
 ((» KuhlliAol) u IuIm- rr|>: !i iif the {•IttMifiirh dcblC, 
 
 ond in |)ur(ii-iihir (o conccut thr dcht V It did 
 
 not np|»rar that ihc rttrnt of thr |(luiiitiii 
 
 a cuiulilKMi o( the ruthcr'% coiiiM-nt. Thr Iax ' 
 
 •aid, the drrciuhiiit i-onfeHscti u confederacy to chcut Hobin- 
 
 »on, uixl he Mould not hiy it doun nH a rule, that fraud in 
 
 cuMCs of thut nature niUHt lic u|><>n an urticle expretthly cun- 
 
 tnictcd fur ; and granted an injunction to rctilrain the de« 
 
 feiuluiit from |)r«>oecdiii 'ver any deht dn' 
 
 the nuirrm;^e of Nevilh-, ■ rluiii rluiius u^r- _ » 
 
 between the parties ; and he delivered hiii opinion thut the 
 
 (lefetulaiit Ci)uld not ever recover thut debt aguinsl the 
 
 pluinlitr(r). 
 
 A caiie is referred to by Mr. licit, in his note to NeviUe 
 V. Wilkinson(n), as l>ein«; decidetl in the House of Lords, 
 where, in u treaty for tlic marriage of a minor, the futhcr 
 of the lady, who, by the murriuge articles contracted, in 
 consideration of a wttlenunt to be made by the husband, 
 to give his daughter .'j(),(XX) marks, prevailed on the hus- 
 band the night before the execution of the marriage articles, 
 to sign secretly a deed, by which he bound himself to 
 dischaiT;e the father from the payment of 10,000 marks. 
 After the husband came of age, he brought his action ac- 
 conling to the laws of Scotland, to have this secret obli- 
 gation nnnullcd ; and the Lonls of Sossiion annulled it. 
 Hy Mr. Hrown's report of the case in the Ilou^e of Ix)rds(&), 
 
 (x) S«« alw at lo ihe cflfcct of » (a) M<rrrnom T. A^huihv. t, 1 Br. 
 
 private agreement io fraud of a mar. C.C. .\pp. p 547. 
 riage conir^.t f.w„,,, ,. V....- n ,/..i, }i-- V ' . ,. 
 
 Ve». 16.'.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 47 
 
 it appears that the defendant hi the Court below did not 
 present his petition of appeal till eleven years after he had 
 acquiesced in the decision of the Lords of Session, and 
 after repeatedly promising payment, and further that no 
 counsel appeared for the appellant. The case can hardly, 
 therefore, be considered as decided by the House of Lords. 
 The doctrine is, however, perfectly consistent with the other 
 authorities.
 
 48 
 
 HTAYINC PItCKTBDINOA 
 
 fPART I. 
 
 ('ii\ni:K II. 
 
 Of InjunctionB to atatt Priicmlimtft at luiie trhrre the PtatH' 
 tijf in I 
 
 the J'lm .~.^, ■.. i ., , .., 
 
 either by reusuH i>f M'uHt !>(,!■ 
 it* I'ormt of /V«. ' 
 
 Letful liujht of ' 
 Hint ahridijrtt /»»/, / 
 
 ' to set V, 
 . . 1 
 
 I zance ; or where the 
 f ■■- iM coupled I- "'. 
 
 1. 
 
 ii^MnniMK i>> ii" '■■ .—.'.--. t 
 
 
 t ..1 
 
 ' • ■ M •■ ' 
 
 
 /^v, la AtJ ff 
 
 
 
 
 
 *»ft. 
 
 !•■. 
 
 IM 
 
 
 ^ 
 
 Wh^l NM'^Mtfry la iMltoia «« In- 
 jmmctMn, la Atd fj tp*e»He I'tr- 
 
 
 I*.'' 
 
 
 3. 
 
 ■iCtpU ff tkt Ctttft <m 
 
 II. 
 
 fe- 
 ll' 
 
 
 4. 
 
 1 ' : .! 
 
 — ... :... i . .' J 
 
 Cautrart. 
 
 
 1 
 
 I'ica mtlit aa L^tlmMt i^m 
 
 5. I 
 
 If'. 
 er$ 
 
 bind tUttr ^itCitu>/rt, titt tM iJit- ' 
 putt. I 
 
 6. Injunctions against a Crid\tor r*- , 
 
 sorting to his Ptrsonttl lUmtdti, 
 »rh*n a Pubtie Fund is provided 
 out of th« Dthtor's KtUittJ'-' '*■- 
 PayairNl of hii Utbts. 
 
 7. I li r. Mill, 
 
 8. Injunctions la Lat*t oj 
 
 9. Injunctions uhert t\t Dt, .. 
 
 I^v has good Matttr of Deftnct, 
 
 on (A< 
 
 all'- t 
 
 2. !'• 
 
 h 
 I 
 
 II <Jr I / rf^acy, 
 
 12. Infunetions tthtrt am mmfair Ad- 
 ro' • ; from etrr- 
 
 <"i»i (la Act of 
 
 IfrftTt in 
 
 Whtrtth^ 
 
 tin ecn ...... • ..». 
 
 eomplieaUd Account. 
 
 V lA« Par. 
 
 U NDKK ll^^ Uni.sion arc to be considiTcd cases Uj- 
 mcnts fur the purdiasc of ii)ttrc>ts in latxl imd (< i
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 49 
 
 and other agreements, leaving the legal title to the thino- 
 agreed for in one of the contracting parties, while an equit- 
 able right passes to the other. Generally, in such cases, 
 equity will restrain the party having the legal title from 
 proceeding upon it at law, to disturb the other party in his 
 enjoyment of the thing agreed for, unless by some circum- 
 stance the party who has the equitable right has deprived 
 himself of the benefit of his equity. Thus it is a common 
 head of equity, that a person holding under an agreement 
 for a lease may obtain an injunction in aid of a bill for 
 specific performance, to restrain the landlord from proceed- 
 ing in an action of ejectment (a). But if the circumstances 
 of the case appear to the Court to make it doubtful whe- 
 ther it will not refuse specific performance, it will either 
 refuse to restrain the landlord from pursuing his legal right, 
 or if it restrains him, will put the tenant on terms. Thus, 
 in Buckland v. Hall (b), the tenant, under an agreement 
 for a lease, being bound by his agreement to do certain 
 repairs, became insolvent before those repairs were com- 
 pleted, and of the repairs commenced, some were not in 
 accordance with the agreement ; Lord Eldon, pointing out 
 the importance of the question of insolvency in a lessee, 
 who is to be hable during the whole term, refused to restrain 
 the landlord from bringing an ejectment (c). 
 
 In an earlier case before the same learned judge, in 
 which an injunction had been obtained, there was con- 
 siderable doubt as to the terms actually agreed upon by 
 the parties ; but the tenant had been let into possession. 
 On the other hand, the answer of the defendant stated 
 the insolvency of the tenant, and various breaches of the 
 agreement during five years' possession, tending to the ruin 
 of the land. The Court, under these circumstances, thought 
 it not a case for dissolving the injunction simpliciter, but 
 would only uphold it on terms, which would secure to the 
 defendant, if it should turn out at the hearing that the 
 
 (a) Vide Edea on Injunctions, 27. (c) Ibid, 
 
 (h) 8 Ves. 92. 
 
 E
 
 50 hTAYI.HO PUUCKIlUlNGii [I'AHT I. 
 
 tenant wuii nut i-ntitleil to K|x*cif)c perfurmancc, tlu- wliulu 
 Ixrnctit III* cuuld )iu%'u iftlic injuncliun were not t»ui>t4tined (</). 
 Hut wli hit* 
 
 UiliTfHt, llie 
 
 lundluril to rcfuac »pfcific iMrrfunuancc, provulcd the con- 
 tntet ill Hit nut a|j|Krar to huvr Ikhmi niuilr liy tin 
 H|Ki-tally antl |M-nHinully, ^^ili> lix* unitignor, unil j 
 the tuMii^MUf Ijo Molvml umi ubie tu enter intu tiie cuvt- 
 nuntM : ami nii m will l- li cai*c», 
 
 to ri'Htruin the 1.1 i jni brin- ^ , 
 
 In Attwowl V. liar ham if), the c|uciitii>n wnn, whether 
 whut had paHMil btt\setii (h<* plaiiitiil' und dcfcndunt 
 anutunted l<> an a^rfcnitiil by the dLftndunt tu i;rant to 
 the plaintitr a sub-leaHc of certain landn of which the de- 
 fendant wan lrii5Ci>,und an injunctiun wuh subl^tncd ugninHt 
 an ejerctnjfnt on the followuig ntate of circuui»lunce«. The 
 planititV alleged, that on the faith of there being Huch an 
 agreement, he had entered into |)OK.sei»Hion, and had cx- 
 iHiuled money uj)on the premise's with the knowledge of 
 the dcfcndnnl ; the defendant admitted that the plointiiF 
 had Oiikixl that he might ha\e the refusal of the premises 
 in (ptcbtion. ami tliat lie had let tl)e piaintitl' int ion. 
 
 lie admitted also that it was his eX|Kctaliui). ,_'ht 
 
 probably be also that of the plaintiff, that his (the plamtiff's) 
 hoUlin^ would cunlinuc as long as the dofi-ii ' ' ' 1 of 
 liis lessor; but he denied, to the l>cst of his on, 
 
 tliat there was any engagement entered into or asked of 
 Inm by the iilaintiff, and he denied the ex|)cnditure of 
 money by the plainlitV. Tlic Lord Chancellor said, "look- 
 ing at what passed before the lease was granted, at the 
 enjoyment which had l)cen had, to tlmt thini^ called the 
 undcrstandiiuj of the j)arties, coupled with what took place 
 before, and w hat had passed since the lease was granted to 
 the defendant, I think it is a great deal too much to decide 
 
 (d) hcardman v. 3fM! 431, aixl wc Afor^on v. Rkodt$,Aid. 
 
 467. 136. 
 
 i^*) CrMhi* s.Tooke, I Mj. v\
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 51 
 
 against the plaintiff at present, and to say that the case 
 cannot be taken out of the statute of frauds." But as there 
 were only two years to run of the terra contended for by 
 the plaintiff, the injunction was only sustained on terms. 
 On the other hand, the Court will assist the vendor, where 
 there is doubt whether he will or not be able to make 
 a title. Thus, where in a suit for specific performance, the 
 objections taken by the purchaser were such that they 
 could not be adjudicated on till the hearing, one question 
 being whether time was of the essence of the contract, 
 which depended on evidence ; and another whether a will 
 made between the suicidal act of a testator and his death 
 was valid ; the Court enjoined an action by the purchaser 
 to recover his deposit, till the hearing (g). 
 
 2. It is not necessary, in order to sustain an injunction to 
 stay ejectment in aid of a bill for specific performance, to 
 show a clear right to specific performance ; it is enough to 
 show some colour of it. And, therefore, where a lessee 
 under a lease containing a covenant not to assign without 
 licence, agreed to let to another with a like covenant, who 
 assigned to parties for the benefit of creditors, and then 
 became bankrupt, and his trustees became his assignees ; 
 the Court sustained an injunction to stay ejectment by the 
 lessee till the hearing, as there was a possibility of right to 
 specific performance in the plaintiffs, since they might obtain 
 a licence from the lessor (A). And when the question is whe- 
 ther an agreement to grant a lease under a power is within 
 the power, and the Court cannot come to the conclusion 
 that it is not, an injunction will be granted to restrain eject- 
 ment (i). When one has agreed to take a lease from 
 another with usual clauses, and not to underlet except on 
 terms, it is not a waiver of the agreement that the tenant 
 has before refused to execute a lease, on the ground that 
 the agreement is all he wants ; for that would not amount 
 
 (g) Levy V. Lindo, 3 Met. 8\. (i) Price v. Aihetoii, 1 You. & 
 
 (h) Pouell V. Lloyd, 1 Y. & Jer. 427. Coll. 82. 
 
 e2
 
 fi'} -l\)IM< |-|(U«^ KKtII ^UB [I'AIIT 1. 
 
 lusaviii.; lliul III luver woiildfxecutc u lrau<»; nor isadvertiii- 
 iiig that thr tunumll be uiultrtct,u furicilure. And iii mkIi u 
 cuHc the lundlurd will bo rcstroincd fruro prucccdiiig ut law 
 to tuiti iiiit tlir lemiiit ; thr lalti-r, li(>\M*\cr, Ixiii^ put uii 
 tiriuH tu dtlivir |n>»m:»»iuii hIicii ixtiiiircd \>y the Court (A). 
 Hut if, under an igicenicut for a lea»e, the tenant hiut 
 treatid ihi' fann in u ;{ri»ttHly unhuKhntid-likc manner, the 
 (.'uurt \\A\ not, in a Huit for n|m-l'i()c |Mrrfonnance, bUhluin 
 an injunction to rcatniin the lundlurd from recovering poft- 
 HCiwiun, if it KceH that the leaM.*, when executed, niUKt be 
 
 put nn end to inunediutely under a cl <" f r< -< t.iry f..r 
 
 breach of the eluuceri in the lea«e (/). 
 
 In M'UliuiHS V. Cheney (i;i), which wub u huit for i»|>eeific 
 performance nimpiy, the |K)int was, whether u |>erHon 
 ha>in;^ an ai;reemt-nl for a Iciiho whenever he ehould retpicHt 
 it, for the special purpose of carrying on hi» trade, or for 
 the sjH'cial purpose of a residence oidy, had put it out of 
 his |>owcr to accept a proj)cr lease under the agreement, by 
 entering into an agreement with a third parly to underlet 
 to him. with a proviso, that if he should not hi ' ' I so 
 
 to underlet, ihm he was to reluni the purcli y ; 
 
 the Master of the U(»lls said it was a mere covenant to 
 underht if he could, and that did not take away his 
 right to a spocitic |H'rformunce of a |)osilivc agre^-nicnt. 
 It seems hardly necessary to state, that where the Court 
 sees clearly that llic party rlainiiii;j; to have an agrecn»ent 
 specifically perlurmcd, has j)ut himself, by gross miscon- 
 duct, in such a position that he cannot execute it, it will 
 not only not decree specific |xrfonnancc, or restrain eject- 
 ment, but will dismiss the bill with costs (n). 
 
 3. The principle to be collected from the authorities 
 seems, lliat an injunction in cases of specific j>erformance 
 is in aid of the presumed rifjht of the plainliH to have spe- 
 
 (fc) GoMWay T. Dukt of &mt .) 3 Ve*. 59. 
 
 1 \es. k B. 68. ^^„) WUli^gham r. Joyce, 3 V«. 
 
 (/) Ibid, per L C, p. 72. 168.
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 53 
 
 eific performance, and that where the Court sees that his 
 conduct has been such, that had the contract been sooner 
 enforced, he would have incurred a forfeiture for breach of 
 the covenants, it will not presume as of course that at the 
 hearing it would decree specific performance, and therefore 
 will not in the mean time in general interfere with the 
 legal title ; or if it does, will only do so upon such terms 
 as will in effect secure to the landlord the full benefit of 
 his legal title, if the Court should ultimately be of opinion 
 that the plaintiff in equity has no equity. If on the other 
 hand the circumstances are such, as to make the Court feel 
 doubt whether it will not at the hearing decree specific 
 performance, it will relieve by injunction against the legal 
 title. 
 
 4. In transactions relating to the purchase of estates 
 disputes frequently arise, from the conditions of sale fix- 
 ing particular periods for the delivery of the abstract and 
 the completion of the purchase, and such periods being 
 allowed to pass without the conditions being complied 
 with. 
 
 The point then frequently comes before the Court, whether 
 or no the purchaser shall be restrained by injunction from 
 bringing an action to recover the deposit, pending a suit 
 by the vendor for specific performance of the contract. In 
 Pinche V. Curtis (o), one of the conditions of sale was, 
 that the purchase should be completed by the 5th of April 
 then next. The purchaser, early in the year, applied for 
 an abstract, which was not sent to him ; and then, after 
 the time fixed for the completion of the sale, he applied for 
 a return of his deposit, saying, that he would not proceed in 
 the purchase. Afterwards an abstract was sent to him, and 
 he appears so far to have re-adopted the contract as to have 
 examined the abstract, and to have intimated again his in- 
 tention of not going on, on the ground of certain doubts 
 appearing on the abstract : the purchaser was restrained 
 (<>) 4 Br. C. C. 329.
 
 ^ ftTAYlNO PROCEKDINOg [PAHT 1. 
 
 from ' • '^'" 
 
 the I I - T l'»*' 
 
 il.jM.sil ot the end of ihc time liiuitc<l for coiiii»1cUiik tlw 
 |>urt'liuHi-, uiiil luul ini»i«UHl he would not i;o on w illt tlu- 
 |jurrlmw, iIm* Cotirl would nol liuvc conn>clUHl liim. So 
 in iontyce v. Funli/i\ llie drfcndanl liud purchaMrd ul un 
 auction an ctlotc i un freehold; on ihr a) 
 
 I ' livercd, a ..J. J.. .....I lluit u Muall part onl\ 
 
 I ind the in*t leakehold. The purcha>»er took IK) 
 
 objection t»n that head, hul objeeled to the hhortnr.s ..f the 
 till. , both of the freehold and leaw-hold. N. -..tiaiiouh 
 Willi i»n for a eonsidcruble tinu-, an<l when at l< u-lh the 
 objectionH were cleared up, the purchaser reftiwd to con»- 
 iilete the pun hasr, on the j^round thnt he wanted the estate 
 lor his suiuiuer lesulence for that year, and that the vendor 
 not having made out a title within a rea^^oimble tunc, he 
 was not Ixiund to p;o on: the Master of the Uolln said, if 
 the purchaser had nuule the «.bjection as to its being repre- 
 sented as freehold with leasehold adjoining, ajid tunnng 
 out leasehold, he should not have thought he oui;hl to be 
 bound ; but as to the objection on the ground of delay, 
 his Honor thought it was a case where the plaintifl' inight 
 have a ri^ht to compel s|>ccific performance, and therefore 
 an injunction was granted on bringing the money into 
 Court. The same principles were applied in Lloyd v. 
 Collet (ij): there the agreement for purchase was in August 
 17i)2, and by the agreement the purchase was to be com- 
 pleted by the '2oth March, 17U3. The purchaser had, 
 shortly after the execution of the agreement, tuul rcjHiatedly 
 between that and the 26th March, called for an abstract 
 of the title, and lx?ing unable to obtain it, he shortly aflcr 
 the 2.jth March, 17H3, called for his deposit, and after re- 
 jxated and fruitless applications, he brought an action to re- 
 cover it in June, 1793. No abstract was delivered till Sep- 
 tember of that year, and when it was delivered, the purchaser, 
 instead of so dealing with it as to rc-adopt the contract, atrain 
 
 ,^.^ \ r r C. 404. (9) Ihid. 46*1.
 
 CHAP. II.] AT LAW AND IN OTHER COL UTS. 55 
 
 insisted upon his deposit, whereupon the plaintiff filed his 
 bill for a specific performance, and for an injunction. The 
 Lord Chancellor held, that the conduct of the vendor was 
 evidence of the abandonment of his contract, and refused 
 the injunction. 
 
 5. Injunctions have sometimes also been granted in aid 
 of specific performance, where disputes have arisen on the 
 meaning and effect of agreements ; or the power of the 
 parties making them to bind their successors ; or the de- 
 scription of the thing agreed to be sold. Thus equity will 
 in many cases decree a specific performance of an agree- 
 ment for the sale of an interest, although the vendor has 
 not the interest which he assumed to sell, if a sufficient 
 compensation can be made(r). And in such cases equity 
 will in general interpose by injunction to stay proceedings 
 at law, until the Court has decided whether a specific per- 
 formance ought to be decreed. But if the whole question 
 turns on the legal construction of language used in the 
 agreement, and that question can be clearly and solely 
 raised by an action at law, the Court will not grant an 
 injunction (s). There is no instance, Lord Eldon said, in 
 the case referred to, in which the Court has enjoined, when 
 it appears upon the face of it, that the action commenced 
 must have the effect of obtaining the judgment of a Court 
 of law on the whole case (t). 
 
 Where a person being entitled under a settlement as 
 tenant in tail, made on his marriage a fresh settlement by 
 deed of the entailed estate, by which he gave a life estate to 
 his wife, with remainders in tail to his son, and in considera- 
 tion of that settlement, the wife's parents, by the same deed, 
 settled certain estates so as on the death of the husband to 
 give an estate tail to his son ; the son, on the death of his 
 father, brought an ejectment against his mother, the tenant 
 for life, claiming as tenant in tail paramount the settlement of 
 
 ()•) See on this bead, 1 Siig. Ven, (s) Sieu-art v. AUhton, 1 Mer.26. 
 
 cap. 6; sec in particular, p. 288. (() Ihid,d2.
 
 60 iTAVINO PHtXKBOINGS [PABT I 
 
 ill (tlirr, while ut llie httine Imu? hi- ■ 
 
 U; .... ciUaUfl lo the c»UU-i» come Iron. 
 
 inothir'Hruiiiily, tut Icimiil tii tail under the Mtllcincut ; but 
 llic Court lht»U'^hl thut ihr fulhi-r hutl U-cuim' u ; i 
 
 fur hiiiiM-ir mill family of the ci»liit4r» coiivtyttl hy i. a 
 
 fiuiiily, uml ihul the UMX couUI iiot br jK-rmittid to huvc the 
 ihin .: coiitnictetl for, uiiIcmi he wmilil |»uy the wholr ; ■ 
 whu li tin- purticii meant nhoiild U? j;i»eii fur it ; Mini i .. 
 tiiieiitlv rrntr :hh«»«I th*" inTlm«'iit till the heunii{{, or further 
 
 unlcr (m)- 
 
 Anil wlurt a I. u i.M i. I Mi. ..... .. j...wr to grunt leaAo* 
 
 ill iKMitn'Hhion willumt fine, ut the hehl rent ilml could \tv 
 ohtuiiuil, uiid the quention arow whether the reinuinder- 
 inun was hound by sueh a contract fur a lease by the 
 tenant for life us would have IkjuiuI him, the tenant f«»r 
 life, if living, and would bind hin OMRetx to make r' 
 iM M^r ; I,. .rd \{< ' ' ' restrained the f' ' 
 
 tuMii Imiium^ all '^ till the heuriiijj:, • 
 
 opinion that the rcmaindcr-nmn was bound. It must be 
 oi)s<rved, however, that there were other circuniJ-l 
 consliliiling ground for ftustainini: the injunction. '11 
 maindcr-man had j)eniiitteil the tenant to retain poftBCf'.sion 
 for nine years after he altainiil In 
 
 tion, and lo expend money in iinpr ■ II- 
 
 ship considered it material that no idea had been given to 
 the tenant of an intention to dispute his title, until the 
 jxiriod had pr^ uibly passed when he could ..litiiin •-afis- 
 faction out of the assets of the tenant for lifi 
 
 A<niin, where a company liavinir a s|)ecific |>ower of hring- 
 inn-actions in the name of their treasurer, for disturbing tlicm 
 in their buildings, works, kc. but no general fwwer to sue 
 ami be sued by their officer, purchased, with notice, land 
 luld under an agreement for a lease, a bill for specific i>er- 
 formancc against certain of the shareholders only was sus- 
 tained ; and though in such a case the Court could not compel 
 
 (m) Green v. (■ 
 
 (i) Shannon » ~ i-cf. 52.
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 57 
 
 the execution of a lease, it bound the absent parties by 
 declaring the plaintiff entitled to a lease, and restrained the 
 treasurer from bringing an action to disturb him in the pos- 
 session {y). 
 
 6. A question has sometimes arisen, and seems yet unset- 
 tled, whether if a creditor has a personal remedy against his 
 debtor, and there is also a fund provided for payment of 
 the debt out of the debtor's estate, from which the creditor 
 might obtain payment if he made due application, heisbound 
 to do so, and in default will be restrained from resorting 
 to his personal remedy. This sort of point arose in several 
 cases shortly after the declaration of independence of the 
 United States of America, in reference to the remedies of 
 parties having claims against persons whose property in 
 America was by certain acts of the American legislature 
 made a fund for payment of their debts, and subject 
 thereto, was confiscated to the state. 
 
 The first in order is a case of Kempe v. Antill{z), in 
 which the plaintiff was a British subject resident in Ame- 
 rica, who during the American war adhered to the British 
 government. After the declaration of independence of the 
 United States, his property in those states was confiscated, 
 subject to the claims of his creditors. Previously to the 
 breaking out of the war, he was indebted by bond to the 
 testator of the defendant, who died before the Act of Con- 
 fiscation passed, leaving the defendant his executor. The 
 defendant, instead of resorting to the special fund set apart 
 by the American government for the payment of his debt, 
 came to this country, and then brought his action upon the 
 bond, whereupon the plaintifl filed his bill for an injunction. 
 
 The Act of Confiscation did not in terms make any dis- 
 tinction between creditors well or ill affected to America, 
 but it appeared by the answer, that the defendant, having 
 taken part against the Americans, had become as obnoxious 
 
 (il) Meux V. Mahbii, 2 SviMst. 217. (s) 2 Brown C. C. 11.
 
 58 8TAYIXO PROCKBDINOH [PART J. 
 
 u.H the pluintiti, and \- \.\\n«rt' 
 
 he Ulnviil lliiil liiH . ..; ■• <J. »"^ 
 
 himself dct lartti Ruilty of high trcu*<jn. Allhoujjh ihere- 
 foro there a|i|>curfd iio nlriclly /ryti/ objection to hi«i resort- 
 in;; to the funti HixH-mlly niiulc hahU- by the AuicrKan i;o- 
 veminent, it »u'tni» i hur that the name cventi which made 
 the phiintiH '* |>ro|)crly hable, made it practically im|)<Mi- 
 siblc for the defendant to re*ort ti. it an u fund for payment, 
 und it i* dillicull to nee n|)on what prmciph: uny argument 
 could \)c supfwrU'd for deprivmj; him of the jx^rKonal le- 
 medy for whidi he had contnirte«l, and which the law gave 
 hnn ai;ainHt hit* tiebtor, becauw; he had not rcHorted to u 
 Hccunty which he had never contracted for or accepted, 
 and to which, by the actn of a forci^Mi };ovenmjenl, he wa« 
 in ollcct rcstraiiH'il from reporting. The Court intimated 
 that ;in injunction could not be granted. The motion Ktood 
 over, and tin- plaintitF aflerwanls g;ivc up the |K.int, ond 
 paid the money. 
 
 In JVtfrs V. Krving{a), which came on on a motion todis- 
 solvcan iiijunclion against the defendant's proi : itlaw 
 
 ujK)na bond, thfsame jioint ar(»s4', under circuii iiow- 
 
 cvcr somewhat diflcrcnt. The phiintifl "s testator had pro- 
 perty in Anurica, which was confiscated, subject tohisdelit>i : 
 the defendants, who were the executors of the cre<iilor, 
 were resident some of them in England, and some of them 
 in America. The defctulants, resident in I'ngland, swore that 
 they did not know that the debtor had j)ropcrty in Ame- 
 rica. The defendants in America admitted that warrants 
 mi"^ht have been obtained at the time of the passing of the 
 Act of ('onfiscation, but said that they would not have l>ccn 
 immcdiatelv pavuble, and would not protluce at the time 
 the bill was tiled more than four or five shdlings in the 
 j)ound. The Lord Chancellor dissolved the injunction, 
 expressly on the ground of the defendants not knowing of 
 the debtor's property in America until the fding of the bill.
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 59 
 
 and expressing an opinion, that if the creditor could bona 
 fide obtain anything in America, he ought to do so. 
 
 In a subsequent case (Z»), the same learned judge repeated 
 and applied the doctrine thus pointed at. In the case re- 
 ferred to(c), it appeared that one of the defendants, who 
 claimed under a bond creditor of the plamtifF, having ap- 
 plied to the commissioners appointed by the American go- 
 vernment to determine claims upon confiscated property, 
 such commissioners had refused to adjudicate, and had 
 referred him to the American legislature ; but he had not 
 applied to that legislature, believing that such applica- 
 tion would be wholly useless. The greater part of these 
 facts appearing by the answer of one of the defendants, who 
 was the attorney of the principal defendant, the Lord Chan- 
 cellor granted an injunction (^), Sir L. Kenyon, M. R., 
 who assisted him, concurring; and at the hearing of the 
 cause, the Lord Chancellor said he was still of the same 
 opinion as he was before, as to the equity in general ; 
 for if, his Lordship said, " a creditor here had a fund 
 in a public treasury provided for payment of his debt, 
 and would notwithstanding pursue the debtor person- 
 ally, it would be the most unconscientious case possi- 
 ble." But as the defendant swore he had made every 
 reasonable effort without effect to obtain payment from 
 the American government, and that answer was not con- 
 tradicted, the order made at the hearing of the cause was, 
 that the money should be paid to the defendant upon his 
 giving security to refund it, if the decree should be against 
 him. 
 
 The principle of Wright v. Nutt, although supported by 
 the authority of Lord Loughborough, in a case at law 
 where the same sort of question arose (e), has been disaj)- 
 proved by Lord Eldon in a later case, which related to 
 the same estate as the case of Wright v. Nutt, and in 
 
 (b) Wright V. Nutt, 3 Br. C. C. on an injunction, 1 H. Clacks. 137. 
 326. (e) FoUioit v. Ogden, I H. 13la. 
 
 (c) Ibid. 123. 
 ((/) See the case on the argument
 
 »>u hiAviMi iMioi i:i:iJi>c.h [part 1. 
 
 whicli the c i re u in h Unices wcrt* nearly the i^me{ f). In 
 that cui*o Win LorUnhi)), rcfernnj; tu liioM? uuthurttie«, Haul, 
 if hiK decision were to depend on bit locediiig to thtin, 
 he \snA not pri'purtnl to sav he could uj^rt-e to llietn H«* 
 decided the cmtc, however, on the lacls. He Huid, thul the 
 uuthonticn in <)ueiition all concurred, that to bur the cre- 
 ditor of hi» |Mnn»nul rmutly, he nuiHi have the ch-iir i: 
 und It nuiHt l>e kIiomi) thut he hud nuch nicnnii of iii..:. .^ 
 hiH denmnd ut;oinht the other fund etVi'cluQl ; and in the 
 |)riiu'i|ml cnM* liiii Lordhhip thought it wuh not eletir that 
 the creditor hml nuch meuiiK, uh it wuh not clear thut he 
 wuH one of the wj-ll utfecled to the government of America. 
 There i» another case on thiK Huhjcct, of which a nhort 
 statement is to l)e found in I*. William* (^). There on ac- 
 tion WU.S hrouj^ht hy a creditor u«jain»t a |>cn*on who had 
 betni a director of the South Sea Company, and he filed a 
 hill for an iiijunclion, on the ^roinul that an act of parlia- 
 ment hud V(ste<l all Ins pri^|)erty in the trustcen of the 
 company, and had made provision for the payment of hi« 
 debts thereout ; and he nr^etl, that a.s the l»'L;i.s|aturc had 
 pniviiletl .such funds, the creditor ouj^ht not to proceed on 
 his |)cr«onal remedy against him. Hut Lord Chancellor 
 I'arkcr rifus<»d tin? injunction. Then* is also nn<»ther early 
 case(/i) which to some extent involves the jjrinciplc under 
 discussion, and so far as it docs do so supports the deci- 
 sion in llolditrh V. Mixt. In the case to which I refer (A), 
 a party had insured his ship in lime of war, and it was 
 taken and retaken, and condemned and .sold in the Prize 
 Courts. ^^ hereupon, under the 13 Geo. 2, c. 4, s. 18, 
 the ])arty insured would have a right to receive the salvage, 
 and if he did receive it, would only be entitled to recover 
 the balance under his j)olicy of insurance. Hut it was held, 
 that if he ortcrcd to reliiujuish the salvaue to the insurers 
 he might proceed on the personal remedy for the whole, 
 
 (/) Wright V. Simpton, 6 \ c». Will. 695. 
 714. (/.) Vringlt V. Ilatllfv. 3 Alk. 
 
 (g) lloldtieh V. Wur, 1 Pccrc 195.
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 61 
 
 unless indeed there had been fraud in the loss of the ship. 
 And accordingly in this case, the defendant offering to relin- 
 quish the salvage, an injunction to restrain him from proceed- 
 ing in an action for the full amount of the policy was refused. 
 
 7. The case of Holditch v. Mist was treated by Lord 
 Eldon in Wright v. Simpson as a decision in point against 
 the principle of Wright v. Nutt ; and in the latter case 
 itself, although Lord Thurlow professed not to overrule it, 
 but rather to assume that there was more in the case than 
 was to be found in the report, yet his Lordship appears to 
 have considered it as a decision not reconcilable with his 
 opinion. I would observe, however, with very great defer- 
 ence, that the decision in Holditch v. Mist appears prin- 
 cipally to have turned on ti)e point, that the act of parlia- 
 ment did not appear on the pleadings. And with regard 
 to the case of Wright v. Simpson, it must be observed that 
 there was a feature distinguishing it from Wright v. Nutt, 
 viz. that in the former it did not appear that the creditor 
 could have resorted to the public fund set apart for pay- 
 ment of the debtor's debts ; whereas in Wright v. Nutt, the 
 creditor was actually a member of the American Congress, 
 and was admitted by the answers to have been friendly 
 to that government. 
 
 On the whole, the state of the authorities and dicta 
 under discussion doesnotseem such as to warrant an attempt 
 to lay down any general rule. Perhaps it might not be 
 improper to consider cases of this nature with some refer- 
 ence to those cases which involve the principle of mar- 
 shalling, viz. that if a creditor has two funds, he shall be 
 compelled to take that which, paying himself, will leave 
 another fund for another creditor (i). For if in such cases 
 as Wright v. Nutt, and the others of the same character, 
 a creditor having a claim against the fund provided out of 
 the debtor's estate, as well as his personal remedy, is not 
 
 (i) See Lannoy v. Duke of Athol, Cooper, 8 Ves. 382; and see 9 Ves. 
 2 Atk. 444; Attorney - General v. 211. 
 Tyndall, Ambler, 614; Aldrich v.
 
 G'2 HTAYIJiO PROCEEDINGS [PAKi I 
 
 Itoiiiiil to 1. ' tu ilie juiIjIic fuiitl, la- may uiulouhtLilly 
 
 nrrjuiliii- ■ litiirs v\li(» Imvc oiilv a i)< r^oiial n-iiu'ily. 
 
 8. Thutc(|Uity rLluvfH u;4Uiif»l iniblakL ul Jud 7« ,lli 
 in general not of luw, ii» tilniot^t un rltinmlary |'i , 
 Hitiun, und thu caRca abound in which thul rchef in ndini- 
 ninUntl in vurioun f«>rniH (/). IJiil the <^'rfat«r niunlK-r ol 
 thcjic arc not cuMii of nijnnrlion, hut of gc-ncnil rvhff, and 
 therefore it doc« not full within the bco|)c of thin work to 
 notice thrill, fiirlhrr than U> hay thai where rfjuily would 
 {^ive irenerul and |Mriiiaiuiil relu-fa'^'ainst inixlakc hy setting; 
 aside or reforming; an iiiiitrunient, it would also in general, 
 if the circunistiinces rendered an interlocutory interference 
 requisite, restrain pnu'cedings at luw on bucIi instrument 
 III the mean time. The principle of this juriBdiclion is the 
 same in sulistance as that whicU governs the cases already 
 iliscusscd in this section ; viz., that if a deed is framed 
 contrary to the intention of the parlies in their contract on 
 the subject, the forms of proceeding in the Courts of com- 
 mon law will not admit of such inveslii^alioii of the matter 
 in those Courts as will eiialdc them to do justice. The 
 parties cluiiiiing under the deed have therefore an advan- 
 ta<'r ill proceeding in a (.'ourt of common law, which it is 
 against conscience that thrv should use, and a Court of 
 ecjuity will on this ground interfere to restrain proceedings 
 at law until the matter has been projurly investigated (m . 
 This doctrine was ap[)lied in a late case, where an agree- 
 ment had been entered into l>y the j)laintifr, a solicitor, on 
 Ijthalf of his client for the payment of two sums of money 
 of 4UU0/. each to the dclendant, and it api>earini: after- 
 wards tint there was a further sum of 200/. due to the 
 defendant, the plaiiititV agreed |)ersonally to pay that sum. 
 It was found afterwards that the covenant for payment was 
 so framed as to make the plaintiff liable to pay one of the 
 
 (/c) Sec 1 Fonti. 116, and the vol. i. cip. 5. 
 
 notes. (m) llol. PI. 128, aod the cases 
 
 (/) Sec the cases cited in 1 Fonb. there cilcd. 
 117, Q.(i . I , set also Slorj'i E<j ' ■
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 63 
 
 sums of 4000Z. as well as the 200L The answer admitted 
 that it was by mistake that the plaintiff was made person- 
 ally liable for the 4000Z. but stated that the agreement was 
 drawn by the plaintiff himself, and the defendant relied on 
 that circumstance to rebut his equity. But Sir J. Leach 
 said, "there was no such principle in equity as that a party 
 should not be relieved against his own mistake ; for common 
 mistake is the ordinary head of equity. And every party 
 who comes to be relieved against an agreement which he 
 has signed, by whomsoever drawn, comes to be relieved 
 against his own mistake." His Honor accordingly sus- 
 tained the injunction which had been obtained to restrain 
 proceedings at law upon the agreement (w). And where 
 on the renewal of a lease and a deputation as keeper of a 
 chase, the renewal of the deputation was by the mistake 
 of both parties referred to the term in the old lease, and 
 therefore in effect expired with the old lease, the Court 
 decreed a new deputation to be executed, and granted a 
 perpetual injunction to restrain the lessor from disturbing 
 the grantee of the keepership (o). 
 
 Under this head too may be mentioned a case upon 
 powers (p) in which it was decided firstly, that where a 
 party comes into equity for an injunction against proceed- 
 ings at law founded on the defective execution of a power, 
 he must admit by his bill that the power is badly executed 
 at law; and secondly, that such an injunction will not 
 be granted where it has been decided at law, not that the 
 power has been defectively executed in regard to some 
 attendant circumstance, but that a different power not 
 given has been executed, leaving the power actually given 
 unexecuted {q). 
 
 9. Cases occur sometimes in which the defendant at law 
 
 (tt) Ball V. S^orie, 1 Sim. & Stu. (/>) Cocker ell v. Cholmcley,^'Rn%s. 
 
 210, 565; 1 Russ, & My. 418. 
 
 (o) Jalahert v. Duke of Chandos, (q) See also on this 2 Sug. Pow. 
 
 1 Eden, 372. 138,139.
 
 «)4 STAYiyO » K'li I I niM.s [PAIITI. 
 
 lias ^ckkI m<i//t-r of drj'rncf , Ijiit i»\viii^' ' ' l<<rm 
 
 <'t tlu- urtioii, «»r to llur hlii;;*" ut winch th' _ Ikixl' 
 
 omvctl, hi; ii* uitublc to avail hiiuM-lfuf it at luw. 
 
 TluiH, III U V \ ' \ olitUlllCll jiul<iuiiul ut 
 
 luw u^iuii«il l5. : . , ;ual uii u rrliiru to tlic 
 
 writ of rxccution of nulla bona, dintniiiied for iJie iitnount. 
 AflirwurtU IJ. bruu^ht an acti' : \ ■ - 
 
 n\\ for irregularity «» thr tlihii^ ;, ... ; ' / 
 
 iluimii»eji ; B. owed other iiionvyii to A. but huji iriHolvciit, 
 
 titui WUH ulxtUt to tux llIK COHtM, Ulltl tttioll UpllllMt 
 
 A.; und, owinj; to the forinn of j<. ^ ut luw, tin- 
 
 jud^inent of A. could not be hel off u^aillHt the dan 
 obtuiiied by H. Inder these circuiiiRtanceH, Sir L. Sli.ul- 
 well, V. C. grunted an ex jtarte injunction to restrain 
 W. from suing fnit execution, A. undertaking to satisfy 
 the li<n of H.'s attorney (r). 11. afterwards moved to 
 dissolve. Hut his Honor the Vice Chancellor rcfuHcd 
 the motion, und said it a()|M>arid to him that the case was 
 the same as if B.'s judgment had been paid and he had 
 l)een proceedin*^ at law to take A. in execution : that the 
 judgment was in |K>int of fart satislifd, and though the 
 Court of King's Bench would n(»t, in |)oint of form, allow 
 A.'s judL^ment to be set off against B.'s, yet it was right 
 that it should be done in equity. 
 
 Where, however, the cross demand is purely legal, as an 
 acquisition bv purchase of bills of exchange accepted by 
 tlic plaintiff at law ; and where the case is not that the 
 defendant at law cannot have by possibility any benefit of 
 it at law, but only cannot have the benefit of it as a set-off 
 by reason of the time when he has acquire<l it, as where 
 after verdict he acquires a cross demand exceeding the 
 amount of the verdict, equity will not interfere by in- 
 junction to prevent the plaintiH at law from having the 
 benefit of his verdict by taking out execution («). For 
 equitable set ofl' is when a defendant at law has a cross 
 
 (r) iriiiidmi V. Dan>», 2Siiii.46l. (i) H hyf< v. O'Brten, 1 Sim. it 
 
 Slu. 561.
 
 CHAP. 11.] AT LAW AND IN OTHER COURTS. 65 
 
 demand, of which from its nature he cannot have the bene- 
 fit at law, and there is no ground for it, if the defendant 
 could have the benefit of his cross demand at law. But 
 in a case where the plaintiff had a charge on the de- 
 fendant's estate, which was decreed to be raised, and the 
 defendant had a claim for 800^. against the plaintiff, for 
 which he brought an action and obtained judgment, an 
 injunction was granted to restrain him from issuing execu- 
 tion, as being inequitable (t). And where there was a decree 
 for an account in a legatee's suit, and on takino; the account 
 a charge was brought in by the executor against the plain- 
 tiff that he had received certain sums, and on its being re- 
 ferred to arbitration, the arbitrator found a balance due to 
 the plaintiff the legatee, although no regular award was 
 made, it was held that the executor ought to be restrained 
 from bringino- an action ag-ainst the legatee for the sums he 
 had received, until the master should make his report (?<). 
 
 Where the matter confessed by the answer of the de- 
 fendant in equity would be a good defence at law if proved, 
 the Court will not restrain him from proceeding up to 
 judgment. But if the bill be also for relief, to have an in- 
 strument founded on alleged fraud cancelled, and some 
 of the defendants have not put in their answers, which 
 may disclose a defence of which the plaintiff in equity 
 could not avail liimself at law, then equity will stay execu* 
 tion {x). 
 
 10. It is not, however, to be understood, that equity will 
 in all cases interfere merely upon the fact that injustice is 
 done by the forms of proceedings at law. The distinction 
 is, that the Court will interfere where the party using all 
 due dilio;ence and availino; himself to the utmost of the as- 
 sistance of a Court of law, is unable to obtain justice by 
 reason that the Court of law cannot take full cognizance 
 of the case ; but that it will not interfere to disturb the 
 
 (0 Austin V. Tynle, 2 :Mo1. 486. (.1) Houlditch v. Xias, 8 Piicc,689. 
 
 (w) Milner v. Goolden, 1 Cox, 197.
 
 Ml hTAYlNU l>NOCKKDl«Ul» [PVHI 1. 
 
 IHuceetliu^H ut a (H>urt uf luw, \%licti the iuult«rs uu x^hicli 
 thr |>»rl\ I III e<|uily iiii;jl»l have 
 
 Ik'ch hroi_ < ' .>v, uikI are <•! siali ii 
 
 luiture that thut (.uurt nruuld have tukcii notice ul iheiii, 
 aiul the parly han by Iii» own act or nej^hil ineaiKu it;tli il 
 hini.>M'ir iroiii ('htaining jUHtii'e in Huch Court (,v • Hits 
 (h?ttii)ctiun in vtrv clcorly iaitl iluwn hy Ixinl KccIcmUiIc in 
 the en*r of liateman v. Wiitur. In that ca»e the phinitiH 
 fih<l hiH bill to restrain a M>liritt»r, whom he had employed, 
 ("umii pn»ce« tlin;; «»ii a verthct obtained lor the amount of a 
 bill of cui^lA. It ap()can'd that the evidence on which the 
 phiiiititr ill ((juitv foiindi-d his application, ini'^ht have b«-vn 
 buMi^ht before the Court of comuM'ii law, and nn^hl have 
 Ixfii taken into cunsidenttion by the jury, il the plaintiff bad 
 i(impln'd with tlie rules (»f pru'tice of the Court of coiiiinoii 
 law, and Lord IdtlestlaU' relu>cd the iiijuiKtioii, hayiii'4, 
 •* The inattention of parties* in a Court of law can scarcely 
 be made a subject for the interference of a Court oft-fjuity. 
 There may be cases cogni/iible at law and alM) in e<piity, 
 and of which cojinizancc cannot be efi'ectiially taken at law, 
 ami therefore e<piity d«^s HometimcH interfere ; a» in cartes 
 of complicatctl accounts, where the party has not made 
 defence, because it was iiiipossiblc for him to do it eflic- 
 tually at law. S> where a verdict ha-s been obtained by 
 Iniiiil, or where a ])arty has ixjsscssetl himself improperly 
 ot soiuelhing bv moans of which he has an uncoiiJ-cientious 
 advantage at law, which ctjuity will either put out of the 
 way or reslniin him frnm using. Hut without circumstances 
 of that kind, 1 tlo imt kimw that etpiity ever does interfere 
 to grant a trial vixi matter which has already been dis- 
 cussed in a Court of law, a matter capable of Ixmiii; dis- 
 cussed there, and '>\ir wlu.l! ili. Cnri ..f linv had full 
 jurisdiction (z)." 
 
 Aiul where in a ca.>e ol contract lor the sale of an estate, 
 
 (v) lititcmaHV. U'ilU^, 1 Sell, ^l (:) Hatetnan r. H'illtn, 1 Scb. & 
 
 Lcf. 201; Linear-/ V. //././.^. <...., I I.f. -201. 
 Rose, Ao9.
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 67 
 
 the vendor could not clear it of an incumbrance to the 
 amount of nearly half the purchase money, and other diffi- 
 culties existed, on which considerable negotiation took 
 place, and the vendor brought his action for breach of con- 
 tract, but afterwards withdrew the record, not from any 
 reluctance to have the matter decided in a Court of law, 
 but from finding that in that stage of the case he could not 
 support his action ; and afterwards the purchaser brought 
 an action to recover the deposit, and obtained a verdict, on 
 which the vendor moved for an injunction; — Lord Eldon, 
 without deciding whether the Court would ultimately de- 
 cree specific performance, refused the injunction, saying, 
 that under the circumstances the Court ought to adopt 
 the principle adopted by the parties themselves, and leave 
 them in the situation in which they had placed them- 
 selves (a). Where the defendants in equity have not only 
 the superior legal title but also a good equity, the Court 
 will not restrain them from proceeding on such their legal 
 title. Thus in a case where a settlement of leasehold 
 was made by a trader in consideration of lUOO/. his wife's 
 fortune, on himself for life, or until bankruptcy, with re- 
 mainder in either event to his wife, and he afterwards 
 became bankrupt, the trustees of the settlement were not 
 restrained from bringing ejectment to recover possession of 
 the leasehold (h). 
 
 Although a Court of law will not grant a fresh trial 
 where a party has not proved his case, merely to enable 
 him to get fresh witnesses to prove it, and although a Court 
 of equity would not interfere on such a ground simply, 
 yet it is otherwise in equity, where by the answer itself 
 new facts appear which were not before the Court of law, 
 and which possibly the defendant at law could not get at 
 
 (a) Wood V. Bernal, 19 V^es. 220. till bankruptcy, and after either event 
 
 (6) Higginson v. Kelly, 1 Ball &: to his wife, is good against creditors j 
 
 B. 252 ; a settlement by a trader of /i/s E.i parte Hinton, 14 Yes. 598; Ex 
 
 ivi/e's property on himself for life, or parte Meaghmi, 1 Sch. & Lef. 179. 
 
 f2
 
 68 HTAYIKU PROCKKUIKUS [|>AI<I 1. 
 
 at law, wiiliuut the liiMruvcry fruui the dcfcudunt in equity. 
 In huch u lom: ctjuily will inicrfiTf by injunction (ry. 
 
 11. Tntlcr llie Kccontl brunch of thi* iu>ction are to Ik* 
 noticfd lat^e?* whcrr, inciih-nt to tin- W-mil tilU-, io honic 
 e(|uilublr habihty. In buch cuim>« ccjuity will rcblrani the 
 cxcrcittc of thi lentil right, if the party i« not in a |Mi»itiun 
 to nurtwi r thi' ('(|nitable hubihty incident to it. 
 
 I. 'I'huH although a niortgagec Iioh a right to proceed on 
 hib nioitgage in (•({iiity, ami on hih l>ond at law at the Kanie 
 time, yet hi» right in lettcied and controlled by the corrcft- 
 |tui)din<: riglit of* the mortgagor not to l>e obliged to pay 
 back the money i'i> li'!' I'ond, if he is in danger of not 
 getting back his title ilcctis. The inortgugcc can have 
 iK)thiiiL, bill (jii condition of rccunvc yiiig and giving up the 
 title deeds which he has received. And llierefure, wiiere a 
 mortgagee died without any heir that could be discovered, 
 the (Joint ie>tr.iiiied the executor of the n ' 
 
 proceeding at law to com|K'l payment of the 
 being no heir who could reconvey (r/). And where a mort- 
 gagee having got possession of the mortgagor's title <' 
 lodged them with an attorney, who claimed a lien , :. 
 them and refused to give them up, the mortgagee was 
 restrained from proceeding at law upon the collateral hccu- 
 ritv (e). In regard to a mortgagee's right of proceeding at 
 law after foreclosure, the general rule is, that a mortgagee, 
 having foreclosed, may nevertheless proceed at law u|K)n 
 his collateral security (/) ; but he thereby opens the fore- 
 closure, and lets in the equity of redemption of the mort- 
 gagor (^). Lord Thurlow indeed appears in a later cose (/i) 
 to have denied the latter part of the doctrine, holdiiiir, that 
 where a mortgagee; forecloses and sells the estate fairly and 
 without collusion, and for the best price, it will then ap- 
 
 (c") Ilatif.fv V. Vernon, 2 Cox, 12. (g) Dnthvood ». Jllythtcmti, 1 E<j. 
 
 (d) Case citc<l by Lord Rc<lcs<lale, (a*. Ab. 317. 
 
 1 Sch.v<tUf. 177. (h) Took v. Jlartltu, 2 Dr. C. C. 
 
 («) Sfh«>/< ».&//. ISch. 6c Ltf. 176. 125 ; and more cIc^'K ;-,2 Drk :h5. 
 (/) Aylttt ». Hill, 2 Dick. 651.
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 69 
 
 pear whether it has produced the amount of the money 
 reported due, and to the extent of what it does not, the 
 mortgagee has a right, and so (his Lordship said) it was 
 established to bring an action against the mortgagor to re- 
 cover the difference. But Lord Eldon does not appear to 
 have approved the doctrine of Lord Thurlow. In Perry \. 
 Barker (^), the defendant, a mortgagee, had foreclosed in 
 November 1798, and sold the estate in February 1799, for 
 less than the mortgage debt and interest, and afterwards 
 brought an action upon the bond for the difference. Lord 
 Eldon, referring to the case before Lord Thurlow, said, 
 " the action in that case must have been for the whole 
 money, for it was an action upon the bond. But consider 
 how it would be, if the action was upon the covenant, lay- 
 ing the damages for the remainder of the money ? It is 
 not very consistent to say you open the foreclosure, desiring 
 him to bring in only the remainder of the money ; for the 
 consequence of opening the foreclosure would be, that a 
 new account should be taken of the principal and interest, 
 and the money to be brought in upon that footing should 
 be all or nothing." His Lordship, however, in consequence 
 of the opinion of Lord Thurlow, granted the injunction, the 
 plaintiff paying the money into Court. The cause after- 
 wards came to a hearing before Lord Erskine, C. {k), who 
 was of opinion that the foreclosure was opened, but upon 
 the ground of the length of time elapsed since the sale, and 
 the inconsiderable extent of the defendant's demand, and 
 that consequently it was scarcely possible that the mort- 
 gagee should seek to put himself in circumstances that 
 would allow the mortgagor to redeem, his Lordship held 
 the proper decree to be a perpetual injunction. " If (he 
 said) in this instance there was any probability that this 
 mortgagee could get the estate back again, he ought to 
 have a time limited for that purpose. Then he ought to 
 tender a conveyance, and the mortgagor should have a 
 time to redeem. But under the circumstances of this case, 
 (i) 8 Ves. 527 a, (k) 13 Ves. 198.
 
 70 STAYiKO rnoTEBnisoft fiAur i. 
 
 the inurtf^u^tf'H dcinuiitl iM-iiig ut iiicoiiMtlembU*, titi.' pru- 
 |MT (l(>(*r(*e iH uii injuiK'tiiiii." ll i« not eu»y tu rcci'iicilc 
 l,«>l(l I*'l>Ltlie'tt rX|>li-i>M<ill lliul tilt* luiuclunUri- HUt> ij\niu:i\, 
 uitli tliu jud}4iiiriit, which prcMXfiiftI on ihi- (ground that 
 the luuituam't' wua iiul in u |t«*hiliiin to o|>cn the lorO' 
 rliNiiire. On thr uhuh*, ho^vewr, (he (lucliine U) Ui coi- 
 Ivcletl t'runi thciM* uulhunlicii i^ornu Lt Uv, ihul mIiltc a 
 n)urt{4agc<- huH (urri'loMNl, und the c»taU* i\uch nut |>ruducf> 
 u« nuich a«i thr niort-^ii^rdchl und inliTfiitJic may j;i'nrr:illy, 
 it hi- will Mihnnt to *>|Mn iho forcrluhnn-, iuid to sut-ounl 
 us niort^i^io, and can lirfiirtu do ho, l>rin(( un urlion U|>oii 
 liis ('i>lhitor.d Mt'uiitv; hnt thai if lie ha» |)nt hiniM If in 
 such u position thul ht* cannot tlr J'nrlo o|M-n th<- tonM'h>- 
 hurc anil roconvcy, in; will Ix icHti-uincd from proceiding at 
 law. 
 
 AllhouL:h u moitga;;t!c, as such, has a right lo all hii> 
 remedies, und therefore to an action at law, yet where hy 
 eontractin;^ to pnrcliase the mort^'a^ed premi8Ci<, he has 
 nmde his charucU^r of mort^^at^ec conditi<jnal, de|iendin^ on 
 uhetlier he is piirchui^er or mort^^u^ec, the Court Mill enjoin 
 liiin from proce(;ding at law , pnltin|^ the niortj^a^^or, how- 
 ever, u|)un t« iinb(/). But in a case where tin- lu^hijinee of 
 a hunkriijd inortLTfigor, against whom the niorlga;^ie had 
 put in a distress on the mort^ug(xJ premises for the arrears 
 of interest, agreed, as assignee, U) pay such arrears io Uic 
 mortgagee out of the produce of the sale of the etfecLs ; 
 although afterwards the fiat wa^ aniuillcd, and although 
 the mortgagee was in treaty lor the pnrclnise of another 
 estate of the bankrupt, on which he might have retained Ins 
 debt out of the purchase money, yet the Court refused to 
 restrain him from pursuing his legiil lemedy ag:iinst the 
 assignee. And it seems that if the agreement for purchase 
 had related to the mortgaged premises, instead of to others, 
 it would have been the same ( w). 
 
 Again, though a mortgagee has an nndonliieil right in 
 
 (/) DriinifnoHci v. I'igou,2 My & (■ \ " ' ^ ' .' My. 5»: K. 
 
 K. 168. ^3)
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 71 
 
 general to file a bill for foreclosure, yet in a case where 
 lands in Jamaica were in mortgage, and the mortgagor 
 had filed a bill in the Court of Chancery in England to 
 redeem, and a decree had been taken for an account, the 
 Court restrained the defendants from proceeding in a fore- 
 closure suit in Jamaica, saying, that the plaintiff" had a 
 clear equity to be protected against a double account of the 
 amount due on the mortgages (w). 
 
 11. A husband has a species of legal title to a legacy be- 
 queathed to his wife, inasmuch as the executors must pay 
 it to and take the receipt of the husband (o) : and therefore, 
 although no action will lie at law by the husband against 
 the executor (p), yet a suit may be instituted by him 
 in the Ecclesiastical Court (^) for the legacy; but equity 
 will, at the instance of the wife, restrain such proceed- 
 ings in the Ecclesiastical Court, because that Court has 
 no jurisdiction to enforce an equitable settlement upon the 
 wife (r). 
 
 A tenant is bound by implied contract to keep his land- 
 lord's property distinct from his own during his tenancy, 
 and to leave it so at the end of such tenancy ; and there- 
 fore, where a lessee of charity lands had mixed them with 
 her own lands, her representative was restrained from bring- 
 ing an ejectment, to turn the party entitled to the charity 
 lands out of possession of lands belonging to the lessee, 
 until it should be ascertained by a commission what land 
 belonged to the charity (s). 
 
 12. It may be observed also, that where an unfair advan- 
 tage would be given to a party by the exercise of the powers 
 
 (?() Bechford v. Kcnihle, 1 Sim. & note 94; and 1 Dick. 373, under the 
 
 Stu, 7. name of Meals v. Meals. See also 1 
 
 (o) See 2 Williams on Ex. 1015. Alk. 491, 5l6; and 2 Rop. Legs. 2d 
 
 (p) Deeks V. Strtitt, 5 Term Rep. edit. 694. 
 690. (s) Aitorneii-General v. FuUerton, 
 
 (q) See Williams on Ex. 1483. 2 Ves. & B. 263. 
 
 (r^ Mealis v. Meatis, 5 V-'es. 516 a,
 
 72 sTAYisfi pRorr.EDisr.fi [part i. 
 
 of an act of imrliammt. the Coin t will inlcrlerc : thus, under 
 the 'J &i 3 Will. 1, c. IJo, fur gr.inluj.^' relief to the West 
 Imlies*, the r<.nunit»sionerH have power to advance njoney 
 lo planters, and priority is ^ivcn lo their securities over 
 ull others alleetin.^ th.- lands changed, and they have no 
 power lo advance without having priority; therefore where 
 the eonuniHRionci-H under this act were about to advance 
 n»oney on the security <jf two pluntations, one ol which 
 was already niort^'a-^'cd, the (;<»urt grunted an injunction to 
 rc^traln the coininissionerK from nuiking, and the mort- 
 gagor from receiving a loan (0- Jl m^^Y '^t: that a parly 
 niav not he entitled to have an agreement spccitically |>er- 
 formed in ecpiity, and may nevertheless be entitled to 
 damas^es at law for the breach of the agreement ; but 
 where a party habi waived his strict le'jjal right, and sub- 
 mitted to a decree in ecpiity, which would not have been 
 made except <>n the footing of his waiving such legal right; 
 or wIkmc a decree has been made for specific performance, 
 cxjjressly on tiie ground that the defendant had waived the 
 literal performance of the agreement, ex t/rtitiu the time 
 appointed for the performance of the contract, equity will 
 restrain him from bringingaftersuch decree an at lion ;i'_'ainst 
 the ])laintift' in etpiity (//) 
 
 lo. Alihouc;h c([uily w ill, as we have seen, relieve against 
 le"-al ri'dits inconsistent with erpiity and good conscience, 
 it is not to be understood that equity will, in all cases, in- 
 terfere merely on the ground of hardship; there must be 
 an equity on one side unmet by any commensurate equity 
 on the other ; and therefore, where parties covenant with 
 each other, and the legal rights of each under the cove- 
 nants entered into bv the other are absolute and uncon- 
 ditional, equity will not interfere. Thus where the lessor 
 of a mill and machinery covenanted lo rcjiair the outside 
 of the building, and during the last fourteen years of the 
 
 (t) BorradiiUe \. BrirkxtoiMl, I \. (ii) Tteunnldi v. Kflion, G Madd. 
 
 & Coll. 60. 2^'<:».
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 73 
 
 lease to replace the machinery lolien it should become in- 
 capable of use by long service, and could no longer be ren- 
 dered workable ; and the lessee covenanted to pay rent and 
 to repair the inside of the building, and to repair the ma- 
 chinery so long as it would last, or could be rendered 
 rcorkable by repair ; and there was no exception as to ac- 
 cidents by fire. The landlord insured, and the premises 
 were burned down and destroyed. It was held that the 
 lessee was bound to pay rent, and had no equity to compel 
 the landlord to rebuild with the money received from the 
 insurance office, but must take his remedy at law upon the 
 covenant. And therefore, the Court refused to restrain the 
 landlord from proceeding at law to recover rent, although 
 he had not done and refused to do any but colourable re- 
 pairs (v). It may be remarked, that the mutual covenants 
 as to the machinery in the lease were extremely improper; 
 for, as it was observed by the Court, their literal effect was 
 defeated by the fire. The lessee was not bound to erect 
 new machinery under any circumstances, but simply to 
 keep the existing machinery in repair ; and the lessor was 
 to put up new machinery, not when it was destroyed while 
 still fit for use, but when it became unfit for use from long 
 service. Such an event as a fire^ therefore, cut away the 
 ground of both covenants, and rendered the performance of 
 either impossible. 
 
 So in Holtzapfell v. Baker (x) it was decided, in oppo- 
 sition to some earlier authorities (y), that where a tenant 
 holds under covenant to repair the premises, and keep 
 them in repair, reasonable use and wear and damage by 
 fire excepted, and the premises are burned down, the land- 
 lord will not be restrained from bringing his action for rent, 
 because he has not rebuilt. Lord Eldon said, he could not 
 see the equity, and put the case thus : " Suppose a demise 
 for seven years, at a rent of 100/. per annum, the tenant to 
 
 (v) Leeds v, Cheelham, 1 Sim. 146. (y) Brown v. Quiller, Amb. 619; 
 
 (x) 18 Ves. 115. Camden v. Morton, 2 Eden, 219.
 
 74 ITAYIKO rROTKRDINGA [iViBTI. 
 
 re|>uir III uil caiuM ckcc|i( lirr, not lu \te liuMc iii iliul cake ; 
 
 UllU till! lillliilonl H(||>||iu(ill'^ llml IlL* Mill Ur KMltl-Ilt ul tiit> 
 iMld ol MCVCII ycur* lu Ukr llir luiul Mrltliout llir iiollM-. 
 
 Iflhcy cliuuiio lu niuko that ui^roenicnt, «»liy i»)uiul(l Uioy 
 luX / H It run Im! II I tliut tiir iiirunii d n 
 
 cuntmrt i», tliat li u i ' '• i'"!! the icui liul 
 
 lie puiil. thi-rc' ih it<> intu ('<|uity. lUil if 
 
 Uiat i» nut the cHct- 1 ut the cuniniL-l ut Ihmt, I runnut fee 
 any cr|iiity." 
 
 And III u tdfu- wluTc u proniMHory note fur KX)/. wfut 
 •^ivi'U fur iiic im'nniini iu be |>umI miIIi u youlJi on |>larin|{ 
 liiiii uitli nil nttonu'V fur n rertuiii luiiiilxT *>( vcarH, llic 
 uttomry covi'iiuiitin^ lu Loach liini, hi < oiihiilcrtiUuii of 
 the l(N)/. and his uervivcH, and In- laii uway lun^ Urfori} 
 tli<> I'lul of the |M.-riud, the C-uiirl Mould not n •.(rum thr* 
 holder of such note from |>rt»ee( (liii(^ at law, although ihe 
 iiui.slx I had refuM'il to tak(> his appitmlicc l>ack(z). 
 
 11. I'luKr this divihiun fall aliiu caaes where, alt hou|i;li 
 the (ilaiiitill at law or in another Court liaa a title Lu iu:t up 
 Sonic |M.'runiiiry elniiii, the (iiml state of the clainiii of the 
 i>arties can only he uscertaincil hv a comphcati-d account, 
 'lliiis, in O'Connor v. Sjmufht (a), the defendant had 
 demised premises to the plaintitl, and rent mom to l>c paid 
 at a certain rate for every acre the premises bhuuld lie 
 found Lo contain. l'|)oii this demise the tenant entered 
 into p«.>sscssion, and no rent eo nomine was paid, but for 
 sixteen vcars various payment.'^ w< re made by the tenant 
 tu the landlord by bills and otheruisi'. And then the 
 IandK>rd broutjht ejectment for non|>aynient of rent. Tlie 
 tenant filed his bill fur an account and an iii|iitKtioii, 
 allej^in;; that on takinsj; the account a balance would ap|>ear 
 ill his favour. Lord Rcdcsdale thought it a |>ro|>cr case 
 for equity, on the ground that so complex an account could 
 not l>e properly taken at law, and until the account was 
 taken, the justice of the ca<*e could not ap|)ear. But an 
 (:) Cm/t. Brown, 5 Price, '2 •' ) 1 Sch. & Lef. 305.
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 75 
 
 injunction will not be granted to restrain an action brought 
 by a tradesman against his customer on a bill for goods, 
 where the ground of asking the injunction is merely that 
 the goods were unfit for use, and where therefore the case 
 is not matter properly of account or of set-off, but matter 
 of damages (Z»). 
 
 And the claim that a solicitor has against his client for 
 professional service is not such matter of account as will 
 give him an equity to restrain the client from proceeding 
 against him at law on a promissory note given as a security 
 for the balance, if any, against the solicitor on coming to 
 a settlement (c). However if a bill for an injunction to 
 restrain proceedings at law on a note, states that there is 
 an unsettled account between the paities, it is not demur- 
 rable quoad i\\e. prayer for an injunction (rZ). 
 
 (t) Glennie v. Imri, 3 You. &: (d) Watlleworlh v. Pitcher, 2Piice, 
 
 Coll. 436. 46. 
 
 (c) Hirst V. Peirse, 4 Price, 339.
 
 70 
 
 •iTAVINO PnOCKHniKO* 
 
 [PAIIT I. 
 
 ( II \ri II; III 
 
 W'/itrr Jit ill I IS Si>iii//i( iii/iiiiist [•'orfritiiri in I'lmillus 
 inrurrtil hi/ tlir lin-mlt nf Comutiits or thr JSfi/lrrt nf 
 other l.rijol Lialfililirs. 
 
 1. GtHtral I'rtMeipU of the JuriHlit- 
 
 lion, auii in I'nrlicuLir nt lo lie- 
 tiff itxaiiiil I'tnallift in llomli, 
 
 2. DittiHCliini t>tlu-etn n I'tnahy oi 
 
 tuch,aiid di ttifiulaltH Uamaf^et. 
 
 3. Di*eiiuii»t cf ihe Cat** uhtre thf 
 
 Urttteh of' ('uadiliou it tcit/ul ; 
 or irhtrt nol nuctplihlt of Com- 
 fteniation in Damagtt etrtain. 
 And k*rtin vj Saodrn i. I'opc, 
 and Davis r. \Vc*(- 
 
 4. Oentrat liftult of all th* Caut . 
 
 that then it gfneraltti tio ItelifJ 
 tigaiiiH Rrtach of o»iy Ci'i#nanl 
 
 ifi a l^rau, *tetpt of Coitmant lo 
 
 pay ItgHl, 
 ft. Caut of h'jctplian lo ikit RuU. 
 (i. iriid( II, anduhal ii hoI, Waiter of 
 
 hit Hight by ikt I'arlfi mlitled >•' 
 
 th* lieiiffil oj a CottHMHl. 
 7. At to Ship lUgiUry Aett. 
 
 1 . So lUl'ttf tchfrt negket I* 
 
 eampli/ttilh thtUtieiTfrmi 
 of th* Sliip UegiUrf Aril. 
 
 2. Jim lUluf may b« gran tfd 
 
 at btluttn Imo J'atliet, 
 i>n# ofuhom hat ike htlltr 
 lijiiitu, ''■ prextnl ikt 
 other from comylttin^ kit 
 
 Ugttl TtlU. 
 
 ]. \ Nl'Ml-lK*)!'!^ class of cases is to he considcrfd 
 uikUm- the head ufrolieraj^ainst penalties and forfeitures. As 
 where a person hinds himself under a j)enally to do a cer- 
 tain thiii'j:, and then omits to do it; or where a lessee 
 covenants to do or not to do certain acts, with a clauRC of 
 re-entry for hreach of the coviMiant, and then commits such 
 hreach. 
 
 In some cases of this naturi', e(juiiy \m11 iiiidur circum- 
 stances relieve against the strict legal conscf|uences of 
 hreach nl the obligation hy the j)arty hoinid. The general 
 principle has been stated in an old case, that equity has
 
 CHAP. III.] AT LAW AND IN OTHER COURTS. 77 
 
 jurisdiction to relieve against the consequences of breach 
 of condition not wilful, whether precedent or subsequent, 
 wherever the matter lies in compensation (a). 
 
 By compensation must however be understood not mere 
 pecuniary damages, but replacing the parties in the posi- 
 tion in which they were before the breach. This principle 
 is constantly applied to cases of bonds or other instru- 
 ments with penalties, where the penalty is inserted merely 
 to secure the enjoyment of a collateral object. And there 
 the enjoyment of the object is considered as the principal 
 intent of the deed, and the penalty only accessional, and 
 to secure the damage really incurred (6). 
 
 But where the penalty is inserted not as such, but as 
 assessed damages, or a compensation fixed by the parties 
 for the non-peiformance of the condition, then equity will 
 not interfere (c). 
 
 The principle of such cases is, tliat equity confines par- 
 ties to the substantial intention of their agreement, and 
 will interfere for that purpose, where at law such intention 
 would be overlooked for the letter of the agreement, but 
 not otherwise. Therefore where it is plain that the penalty 
 is intended by the parties as a fixed or assessed amount of 
 compensation for the wrong done by the breach of the 
 condition, equity will not interfere. But where the penalty 
 is plainly intended only as a security, there equity inter- 
 feres by analogy to the case of a mortgage become abso- 
 lute at law, and confines the party to that which it was 
 the intention of the instrument to secure to him, the thing 
 contracted for, or the amount of damage actually incurred 
 by him by the non-possession of it. 
 
 Thus in a case where a bond was given to secure the 
 performance of articles, to build a bridge and keep it up 
 for a given time, and the penalty of the bond was the exact 
 
 (a) Hayicard v. Angell, 1 Vern. (c) Ko//e v. Feterson, 2 Br. P. C. 
 
 222, 436 ; Woodward v. Gyles, 2 Vern. 
 
 (6) Slomanv, Walter, 1 Br. C.C. 119. 
 418.
 
 78 MTAYINO PROCKKDINCJ* [I'AHI I. 
 
 sum for wliuli tin- ^xiildrr ruiitr.itlrNl lo build l\n bruf'^i*. 
 und hi' riiik-tl tu |M*rlorMi Ins .< >(, it witA drciclcd 
 
 that It Wii^ !>lill It [Niiiilty uiul ii' , ''<'l «liiui.i^<><, iiiul 
 the obln^i-e ivM rcslniiiwd from liriif^iu'p,' un iutioii at law 
 fur llir |»rniiltv, uihI an i«t(iuc ijuantuni damuiftcntuM or- 
 tltrfMl(</). 
 
 AikI where a riiiui Ituuiid hiuitfrlf in ii |N-ntilly n«>t to 
 tnuic a^ a hmmly uirrrliant within certain liuiitM, it was 
 held that the jK-nalty wa* H'»l » ptice t«> Ik? |raid (or iiifrae- 
 tioii of th«* a«;rfcincnt, and llip plaintillut law wnn rrtilriiiiHMl 
 from tak in«^ out execution on u jutl|^nirnt fi»r the amount. (*f 
 llie |u'iialtv, and an iss^uv f/iinntitni (fm/inifirfitus (\\rfrctpi\(r). 
 
 2. The ^roat dilliciilly in casus of thin sort \n to distin- 
 gtiisli whore the jMnaltv will l»e held a ineru security, and 
 where it will l>c held .stipulated <laina<^es. On this .Mr. 
 .laiinaii, in one of his valuahle notes to Mr. Hylhewood'h 
 Prcccdcntj? (f), makes the follow ini; observations : — 
 
 " ( 1). Where u sum of money, whether in the name of a 
 jHiinlttj «ir otherwise, is introduced in a covenant or agrce- 
 ini lit, merely to secure the enjoyment of a collateral object, 
 the enjoyment of the object is con>idered as the principal 
 intent of the ileed or contract, and the pinalty <»nly as 
 accessoiy, and therefore (»nly to secure the damage nally 
 iiHurred. This ink' has ioiiij; been established in CourU* of 
 e.iuity. 
 
 " ('2.) Where a *\i:v{\ contains covenants, or an agreement 
 contains |)iovisions, (or the |ier(ormance of several things, 
 and then a large sum is stated at the end, to Ik? paid u|»on 
 the breach of performance, that must be considrrrn! as a 
 penalty. 
 
 ** (3.) \\ here tlli [mMih ul "l .i -^umIiii -um e- se< iircd 
 by a larger (^). 
 
 (<<) Krriii^diH V. .Ati»t- (i ) \ ol. in. j). 4JI. 
 
 IJrown V. C. 3-11. (g) At/Ut ». LMH, 2 Alk. 238. 
 
 {^e) llardu V. Mariin, 1 Cox, -0.
 
 CHAP. 111.] AT LAW AND IN OTHER COURTS. 79 
 
 " (4.) Where the word penalty is specifically used, it is 
 merely as a security. 
 
 " (5.) A Court of equity will relieve against a penalty 
 upon a compensation ; and a Court of law will not enforce 
 it beyond the actual damage sustained ; but where there is 
 a covenant in a deed to pay a particular liquidated sum, 
 neither a Court of equity nor a Court of law can make a 
 new covenant for a man (A), nor is there any room for com- 
 pensation or relief; as in leases containing covenants for 
 ploughing up a meadow. If the covenant be * not to 
 plough/ and there be a penalty, a Court of equity will 
 relieve against the penalty, and direct an issue of quantum 
 damnificatus. And in an action of covenant at common 
 law a breach must be assigned, and the extent of the injury 
 will be the measure of damages which the plaintiff will 
 recover. But if it be worded to pay 5/. an acre for every 
 acre ploughed up, there is no alternative; no room for any 
 relief against it; no compensation; it is the substance of the 
 agreement (z). 
 
 " (6.) Wiiere the precise sum therefore is not of the 
 essence of the agreement, the quantum of damages may be 
 assessed by a jury; but where the precise sum has been 
 fixed and agreed upon by the parties, that very sum is the 
 ascertained and liquidated damage ; the jury are confined 
 to it, and the plaintiff cannot recover beyond it. For ex- 
 ample, where a stipulated sum has been claimed for breach 
 of a marriage contract, in which case it might not be pos- 
 sible to ascertain precisely what damages the person in 
 respect to whom the contract is broken has sustained, and 
 therefore the contracting parties agree to pay a stipulated 
 sum ; in such case the sum stipulated is, by the convention 
 of the parties, the real debt, and becomes due in integro on 
 a breach of the contract." 
 
 Equity sometimes interferes to restrain proceedings at 
 
 (h) lieilly v, Jones, 8 Moore, 244. Aylet v. Dodd, 2 Atk. 238 ; Farrant v. 
 (i) Lowe V. Peers, 4 Burr. 2229; O/hhks, 3 Bani. & Aid. 692.
 
 80 HTAVlXtJ IMIOCEEUIN08 [I'AKT I. 
 
 luw uii liondb, where the bond in tu du hoaielhing uii u 
 given duy, und il ih nut done on that day- ThuK, ulthuugh 
 the creditor of an uitcHtatc hun u right to hue on the uilnii- 
 ni.*>tration Ixjnd ul' the uihnnnitlrutur (A), when u breach huM 
 In-en coinniittcd, yet whin- th« bnach wan that the in- 
 ventory wuh not cxhibitfd on the ilay nirntion«-d lu the 
 lx>nd, but wa» exhibited withni u few duy» of that dute, 
 and the bdl aMe^etl that the reason of the thiay wa-, the 
 cn»baimb,Hed htate «»( the mtektateH aliairn, the lx)rd Chan- 
 cellor j^nnitcd an injunction, puttinj^, however, the lihtnitiil 
 on terniM (/). 
 
 Anil here may be nienlioneil an old case, m which an 
 injunction was granted to restrain j»roceeding» on a lx>nd, 
 where it a|)peared that the l>ond conl^uncd an intricate und 
 insensible condition, and the defendant recjiiiring the plain- 
 tiH' to seal a release, he th^ired time, to be acUised tluretjn, 
 whcreujxin the defendant refused lime und prcxrecded ut 
 law; tin- |ilaintitr being afterwards ready to seal a releii-« , 
 he obtainetl an injunctmn against the defendant's |*rocec»liitj^ 
 «iii the bond (/«). 
 
 o. \N licllicr c<|Uily would interfere to relieve against a 
 wilful breach of condition, or against a breach of condition 
 not wilful, when it cannot be ascertained with certainty what 
 is cuinj)eiisation, has been formerly much discus.sed. And 
 although the practice of the Court is now fully settled, 1 
 conceive tliat it will not be improper to devote a few pages 
 to a review of the authorities, in order to show the grounds 
 on which the actual rule of the Court stands. 
 
 In an larly casc(«) Lord Alvanley, M. H., ex|)rciiscd an 
 opinion, confniing the interference of ctjuiiy to cases of 
 accident, fraud, surprise, or ignorance tiot wilful: his 
 Honor said, " at law a covenant nnist be strictly and 
 
 (fc) Sec Williams Y.x. pari i. book 'ury, 1 Cox, 399. 
 
 V, chap. 4, and the cases ihcic re- (m) Rfn frj %■. /f..ir/<i, Cary, 78. 
 
 ferrcd to. (n) Lattm v. Lifon, 3 Ve», 690. 
 
 (Q Th>fmai\. ArcWiihcp of Canter-
 
 CHAP. III.] AT LAW AND IN OTIIKR COUKTS. 81- 
 
 literally performed ; in equity it must be really and substan- 
 tially performed, according to the true intent and meaning 
 of the parties, so far as circumstances will admit. But if 
 by unavoidable accident ; if by fraud, by surprise, or igno-*. 
 ranee not wilful, parties may have been prevented from 
 executing it literally, a Court of equity will interfere ; and 
 upon compensation being made, the party having done 
 every thing in his power and being prevented by the means 
 I have alluded to, wall give relief." And in a subsequent 
 part of the judgment his Honour said, "It is now perfectly 
 understood, that even in the purchase of an estate, if money 
 has been covenanted to be paid at a given day, at law no 
 action will lie ; but if the party can show that he took the 
 means of paying it, and has been prevented by accident not 
 in his power, the Court will dispense with the strict per- 
 formance of it, because, as it was formerly said, it is not of 
 the essence of the contract. But it may be of the essence 
 of the contract, and the party shall not avail himself of 
 equitable circumstances, unless he shows that there has 
 been no wilful neglect or misconduct on his part(o)." But 
 the terms, not wilful, and unavoidable, must be taken 
 in this limited sense, that the Court will consider ignorance 
 wilful, where a person neglects the means of information 
 which ordinary prudence w'ould suggest, and will consider 
 accident not unavoidable, which reasonable diligence might 
 have prevented. And accordingly, in a case where a person 
 took an assignment of a lease for three lives, with a cove- 
 nant for renewal from time to time on the falling of each 
 life, on the payment of a small fine, provided application 
 for renewal were made within six months after the life 
 dropped, and he did not make such application for more 
 than six months after the death of one of the cestuu que. vie, 
 the Court refused to interfere, although it appeared that 
 the cestuy que vie was an obscure person whose death 
 might easily be overlooked; the plaintiff's own allegations 
 
 (o) 3 Ves. 692; see also on this doctrine, 2 Price, 210; per the Vice- 
 Chancellor, in Uolfe v. Harris, 
 
 G
 
 * 82 STAVINC PROCEEDINGS fPART 1. 
 
 showing that he huil nut inudc tltui^c m(|uiiifh uml usl-iI 
 those prei'uiitiunH tor learning whotf livi-s were in the 
 lease, uihI obtaining eurly infurmutiou of the di^athii of the 
 teestuLs ijuc i'i«*, which ruajionuhh* jjriKlence would huve biig- 
 gL'hteil, and nahonuhlc dUi^cnce would have rcquircil (;*). 
 Thi' nrxt can** is H'adman v. I'alrraft d/), tirht liturd 
 hi'Cori' Sir U ilhani (inint, M. II., and aftcrwurdK on ap- 
 peal by Lord MhUin. In that ca^* the: Master of the KoIIh 
 treated the nlief in <f|uity as confined to bread) of cove- 
 nant to \my rent ; hi« Honour Miid, in the course of hib 
 iiid'4njent, " in this ca»e there arc Rcvend other covenantn, 
 and It >een»b a(hnilted that rehef is not to be given in equity 
 against a forfeiture occasioned by the breach of tho»c cove- 
 nant ;" and l^oril llldon, on the appeal, adniittin<j that 
 cfjuity could relieve against forteilure fur non-jraynjenl ol 
 lent, saiil, " that clearly there could be no relief aguinst 
 the breach of other c«»venants." 
 
 Mot long alter this case the question was elalwrately 
 discussed by Lord Lrskine, C, in Sanderu v. Pojte (r). 
 That was a case of demise of premises for a term of years, 
 at the annual rent of 35/. ; covenant by less< e to lay out 
 ■JUO/. in the first five years of the term in repairs, and not 
 to assign without license ; and a elatise of re-entry for non- 
 payment of rent, or breach of any (»f the covenants. Tlie 
 lessee did not expend any part of the 200/. in repairs, and 
 thereupon the lessor brought ejectment. The defendant 
 at law obtained an injunction at the Rolls, and afterwards 
 the cause came on before Lord Lrskinc, C, who decided 
 in favour of relief. His I^ordship, after reviewing the 
 cases j)rcceding Katon v. Lt/(i/i(s\ and assiuning, it should 
 seem (/), that they establish the jirinciple that a forfeiture 
 shall not bind, where the thing may be done afterwards, 
 
 (;}) Harriet V. /)'ri;,i,.f,4 l:i:»v h<». v. Leonard, 9 Mod. 91; De Scarltlt 
 
 (9) 10 Ves. 67. . . Dennett, 9 ilod. 22 j Wafer ». Mo- 
 
 (r) 12 Vcs. 28J. . j(.i, 9 Mod. 1 12. 
 
 (i) Cage V. RtuuU. 2 VcnU 352; (f) See 12 Ves. 290; see also 12 
 
 Xcrthcote v. Duke, Amb. 511 ; Uac'. V
 
 CHAP. III.] AT LAW AND IN OTHER COURTS. 83 
 
 or any compensation made for it, expressed himself as 
 follows : " One case has since occurred which appears to 
 break in upon the principle ; though the decision is per- 
 fectly right in the particular instance upon the circum- 
 stances ; but some words appear to have fallen from Lord 
 Alvanley, which go against all that has been laid down in 
 a series by preceding judges; and which, if tliey are taken 
 in their full extent, would create considerable uncertainty. 
 In that case(zf) there were great laches and fraudulent con- 
 duct by the tenant, whose bill, after lying by for several 
 years to see whether it would be for her interest to apply, was 
 very properly dismissed. But Lord Alvanley, in the passage 
 that has been stated at the bar(t;), expresses himself in terms 
 that would confine the jurisdiction very much. If the cove- 
 nant is broken with consciousness that it is broken, that is, 
 if it is wilful — not by surprise, accident, or ignorance — still 
 if it is a case where full compensation can be made, these 
 authorities say, not that it is imperative upon the Court to 
 give the relief, but that there is a discretion. I do not stop 
 to consider what should be the rule with regard to paying 
 money on a particular day, farther than to say, I do not 
 assent to that proposition, that though a full and clear 
 compensation can be made, a Court of equity has no juris- 
 diction, or ought not in any instance to exercise it if it 
 exists. I cannot agree that it is necessary the non-per- 
 formance of the covenant should have arisen from mere 
 accident or ignorance. Suppose the lessee had expended 
 to the amount of 199Z., knowing that the whole sum re- 
 quired had not been applied : the fact that the expenditure 
 was short by that trifling deficiency existing ; and not to 
 be accounted for by ignorance or accident : can it be repre- 
 sented as consistent with justice or good sense, that, the 
 lessee having by calling on his friends attached considerable 
 custom to the house, the lessor, finding the premises by the 
 conduct and industry of the lessee more valuable, should 
 
 (ti) Eaton V. Lyon, c'\ied ante, p. 80. to the expressions of Lord Alvanley, 
 (i') The Lord Chancellor alluded cited ante, p. 80. 
 
 g2
 
 84 STAYINU rHOCLtDlSGH [I'AUT I. 
 
 be pciiiiiilccl tu Itiru liiiu uut, tukin{; udvuiUagc uf the cir> 
 cuiuHtaiicc- thut 1/. or ol. \v6* tliuii the htipuhition hud been 
 laid out, «»r that the money hud l>ern hiid uul five days 
 tuu hite, thuui>h he nii^ht be phiceil ni ihe hume hituation 
 and ubtaui eunjjih-te |mim^chkIuu of all for which he eon- 
 tinctetl ? That «<niUI a|»|»ly e<|uully to a UiK-ficiul leuj»e 
 ujuni u j^real e.\|>endilure of money, or fur u lonj; term of 
 yeup». The hint authonly, the t»nh'r <if the Master of the 
 UolU(x), contintnng the mjunction ut thm cum:, i>u|>]>orlii 
 tl>e jurisdiction." 
 
 The next case is Darts v. Wrst(i/), which waft a cawr 
 arising \\\>ou breach of covenant by non-payment of rent, 
 and Lord ICrhkinc there a;^ain laid down the hamc doctrine, 
 adverting to his previous dcciHion in Sanders v. Pope in 
 lani;uau;e from which it is to be inferred that his Ixtrd^hip 
 would not have made that decision, if he had not enn«iidered 
 himself bound by authority. 
 
 The doctrine o( Sanders v. J^i>j)c rests then, iu>i on prin- 
 ciple in oj)posilion to the preceding; nulhoritiis, but on the 
 assumption that they had established the principle acted u|)on 
 in that case. It docs not aj))>ear, however, on examination of 
 those authoritic.-<, that they go the length of supjwrting Lord 
 ICrskinc's decision in Sanders v Pope, and this appears to 
 have been the opinion of Lord Eldon (:), and of SirThomas 
 Plumcr, \ .C.(«) ; and in the case of Braccbridge v, Ihirh- 
 lei/(b), llichards, B , said he thought the case of I loch v. 
 Leonard did not sustain Lord Erskinc's decision. 
 
 In Cof/c v. liussell (c), the breach of the condition was 
 not by the party claiming relief, but by a j)erson over whom 
 be had no control ((/). The case was this; A., a married 
 woman, having power to devise certain lands, devised them 
 
 (i) J lie fact that Sir \V. Grant (:) Sc« his I^tdthip's obscnatioas 
 
 made an order for an injunction only in Itetfnold* v. Pia, 19 Ves. 134. 
 
 appears incidentally by the argument (u) 2 Price, 210. 
 
 for the plaintiff in reply, sec 12 Ves. (6) 2 Price, 200; sec ibid. p. 217. 
 
 288. On what representations he (<■) 2 VenU. 352. 
 
 made that order docs not appear. (d) Sec on this point, 19 Ves. 140. 
 
 (v) 12 Ves. 475.
 
 CHAP. III.] AT LAW AND IN OTHER COURTS. S.') 
 
 to her executors to pay to her son 5001 when he should 
 attain twenty-one ; proviso, that if his father should not oive 
 her executors a sufficient release of the goods and chattels 
 in a certain house, the gift to her son to be void, and the 500/. 
 to go to the executors. After A.'s decease, the executors 
 tendered a release to the father, who refused to execute it, 
 and then the son filed his bill against the executors and the 
 father, to comjjel. payment of the 500/., and the execution 
 of a release. The executors insisted on the refusal of the 
 father as an absolute forfeiture ; but the father was then 
 willing to release ; and the Court decreed payment of the 
 500/., saying, " It was the standing rule of the Court that 
 forfeiture should not bind where a thing may be done after- 
 wards, or any compensation made for it, as where the con- 
 dition was to pay money or the like (e)." Now on this case 
 it is to be observed, first, that the circumstance that the 
 party affected by the breach of the condition did not com- 
 mit it, and had no power to prevent it, was strong to create 
 an equity in his favor; and, secondly, that the condition 
 was merely that the father should execute a sufficient re- 
 lease, without saying within any particular time. It does 
 not appear at all clear that the refusal of the father at first 
 was such a breach of the condition as to work a forfeiture. 
 But admitting that there was a forfeiture, still the point de- 
 cided does not go the length of establishing more than that 
 equity will relieve where the thing to be done can be spe- 
 cifically done ; to use the words of the Court, as where 
 the condition is to pay money or the like ; and in the prin- 
 cipal case, the subsequent release of the particular goods 
 and chattels was a specific performance of the thing to be 
 done. This case is clearly no authority for the broad posi- 
 tion, that wherever compensation, in the sense of pecuniary 
 
 (e) But where there was a devise, he did not comply with the condition, 
 
 with a conditional limitation over, if the Court sustained the limitation over, 
 
 the devisee should not execute a cer- Simpson v. Vickers, 14 Ves. 341. 
 tain release within a given lime, and
 
 8fi DTAYINO PROCEEDINGfl fPAHT I, 
 
 compensntioii, can be ^;iven, c«|uity uill lelicvt- tlic |)uiiy 
 hoiiiicl l>y n cuiuiitioii, a|;nini(t wtirnl brcaili ofit. 
 
 'I'lif ntxt ca«M' relied on by l>»rtl Mriikme in Descarlitt v. 
 Dennett (e). Iliri LonUhip iij»|M-aro to have inferred, Iron) 
 the expreMHioMH iiM'd by Sir J(>«M>pb Jekyll in tbul cnne, that 
 the learned jiidpj; iiHed the word dunin'^'eH ni the ordinary 
 wide sense ol damngett to Ik- ot«eertained by a jury; but 
 the evpreKHions of Sir J. Jekyll do not appear l)y any nieand 
 to warrant such an infeiciice. IIih Honour <lid not say 
 adirinativflv, in Dtsrarlitl v. Dennett, that wlwrevrr the 
 injury will admit ot full compenHation the (^urt will re- 
 lieve ; but nc^ativelv, that the (xjurt could nut relieve 
 the non-pcrfonnancc of a covenant or condition, the pn*ju- 
 dice in breach of which cannot be estimated in dania(;efi. 
 And he <4c^'s on afterwards tr) exj)lain in what sense he us«i 
 the word dama«^es, vi/., some certain damnyes. '* The case 
 of an entiy," he says, " for non-payment of rent is very 
 ditlerent ; for there the loss is certain, and may be recom- 
 ])ensod bv damages." And the point decided in the ease 
 was, that relief could not be given a^inst an ejectment 
 brouglit for breach of a covenant not to sufler pen»on» to 
 make use of a wav over part of the lands demised — a 
 breach, the loss arisin<; from which could be compensated 
 by daninp,cs uncertain, that is, damages to l)e assessetl by 
 a jury, as well as any other loss. I nless, therefore, th<; 
 Court meant, in the dictum referred to, to use the word 
 damages in a much more restricted sense than the ordinary 
 one, the decision and tlie dictum in Dcsrnrhtt v. Dennett 
 would be inconsistent with each other. 
 
 l\ nfer v. Mocato (f) proceeds on the same principle ; for 
 there it is clear that a jury could liave recomj>ensed by 
 damages. But the (Jourt refused to relieve, on the ground 
 that it was unknown ir/iat should be the measure of the 
 damages ; and on these cases Lord Kldon, in lieijnolds v. 
 Pitt, observes, that the Court must have meant com|)cnsa- 
 
 (e) 9 .>rod, 22. (f) 9 Mod. 112.
 
 CHAP. Ill,] AT LAW AND IN OTHER COURTS. 87 
 
 tion estimated by some rule as certain as that of principal 
 and interest ; not by the casual opinion of a jury, but by 
 some certain rule {g). 
 
 The case in Ambler {h) does not go the length of sup- 
 porting Lord Erskine's decision. In that case, which was 
 upon breach of covenant not to underlet for more than a 
 certain term without licence. Lord Northington stated his 
 opinion in favor of granting relief, but expressly guarded 
 himself against making any immediate decree upon it ; 
 and his opinion proceeded upon two principles, 1st, that 
 the lease in that case was not a breach of the condition, 
 because under the circumstances it could not be for a 
 time certain (i) ; 2dly, that if it were in fact a breach, 
 yet the plaintiff taking the estate as executor was like the 
 case of an heir taking a freehold, and ought to have 
 notice of the condition in order to affect his interest by 
 way of forfeiture for the breach of the condition ; the 
 plaintiff in equity was the executor of the original lessee, 
 and alleged that he had not the lease in his possession, and 
 was a stranger to the proviso against underletting. It is 
 true that his Lordship said, " he took the rule to be, that 
 in all cases where a person has broken a condition and for- 
 feited a penalty, equity will relieve if there can he a com- 
 pensation, and that he thought the Court might relieve 
 where a tenant cuts down timber." But it is to be ob- 
 served, that this opinion was extra-judicial, and that as- 
 suming his Lordship would have grounded a decree upon 
 the opinion expressed by him in reference to the circum- 
 stances of the case before him, it appears by what has been 
 already stated, that that decree would have proceeded upon 
 positions not requiring the application of any such broad 
 rule as that expressed by him in the latter part of his 
 
 (g) 19 Ves. 140, 141. executor made a lease without licence 
 
 Qi) Norlhcote v. D«/ce, Amb. 511. for fourteen years. The Court thought 
 
 (i) The clause was, that lessee for it was not a lease of necessity for more 
 
 lives should not let for more than seven than seven years. 
 
 years without licence, and lessee's
 
 HH hTAYiNO rnorKFniscjs [paut i. 
 
 obrtervalionji. Tlurc ii*, iheruforf, the Mn{;le case of //«< 7. 
 V. Leonard j , uliirli tun l>e coiisuk-rccl u tlirctt uutlit»rity 
 I'or llif ilrciMoii Ilk Stinden v. Piipv, und lliul tatir lius hccii 
 cxprciMly tlirtupprovr-d (A). In rcRpect to Stimlcrs v. Pope, 
 it liuM Imth (ii>iii|i|)rv>vc<l l>y L<»rtl I'.ldon in Hill v. Jinr- 
 cltiy(l), aixl tin- CUM- in the lALhc<|uer ( wi) it« ko tluwiy 
 tiiinihu to it, that it is dilHcull nut to conHidcr it ait )x>si- 
 tividy i)Vririil«-d. llrmcliruhje v. Jiuchlcy wuh u cuw in 
 which thi! phuntiii hnd covcnuntcd uh Ichhcc to luy out within 
 twt'lve nionthH on the piciniscH, 100()/. in j;oo<l and Hub- 
 Htuntiul repaini, und he did nut rr-puir within thtr hoiitcd 
 linir ; thf ciise wuh nrj^ucd hrfuri; the whole (k)urt o( ICx- 
 ihccpur; all the cases, including Sunders \. Pope, were 
 cited ; and it was held hy three of tlic Baronn, the fourth 
 dissentin;;, tliat there could he no relief af^ain^t the furfciture 
 aecruiiJi; from breach of such a covenant, on the j^round 
 that the Court cuuld n<»t ascertain precisely what Bhouid 
 be compensation (n). 
 
 1. ( )ii the whole, from the languntje of the authorities, 
 the principle appears lu be this, that when- the thint: to be 
 done, the not doing of which has wdrked the forfeiture at 
 law, can be specijicnlly done, so as to put the party bona 
 fide and entirely in statu (juo; or the injury can be com- 
 pensated by a sum certain, or by damages capable of being 
 ( stimatcd by some certain rule by the Court, there equity 
 will relieve ; and 1 am not aware of any case since Sanders 
 V. Pope and JLirt v. Davis, in which the rule has gone 
 bcvond this. 
 
 It must also be observed, that as between lessor and 
 lessee in practice the Court has never been induced to con- 
 
 O) 9 Moil. 90. In that case the (m) Brafffcric/g< v. Bi<cfc/fy,2 Price, 
 
 breach of covenant was neglecting to 200. 
 
 llialch a barn; and the Lord Chan- (m) Sec further on the »ubjcct of 
 
 ct'llor rc'licNeil against a verdict in relief a<^ninst forfeiture for breach of 
 
 ejeclment. < ondilion, the cases cited in I Ya\. Ab. 
 
 (k) 18 Vts. «il ; 19 Ves. 141. < .ip. 17 M ; see also Tatilor^.l\rpham, 
 
 {I) 16 Vcs. 403. 1 r.r. C. C. 168.
 
 CHAP. III.] AT LAW AND IN OTHER COURTS. 89 
 
 sider any cases of forfeiture as strictly within the principle, 
 except those arising on breach of covenant to pay rent. 
 Thus, although it is difficult to see how the reasons urged 
 against the interference of equity in cases of forfeiture for 
 breach of covenants to repair, not to assign, and other 
 covenants of a like nature, are less applicable to forfeiture 
 for breach of covenant to pay Yent{n), yet the doctrine is 
 firmly settled since Hill v. Barclay/ (o), that the Court will 
 not restrain a landlord from proceeding at law upon a for- 
 feiture for wilful breach of covenant to repair, or not to 
 assign. A fortiori, it will not interfere to relieve against 
 breach of covenant to insure, which is stronger against the 
 tenant than the omission to repair; because in the latter case 
 the landlord may, by using due diligence, see to the obser- 
 vance of the covenant ; but in the former the landlord must 
 rely on the lessee for the fulfilment of his obligation (p). 
 And this has been carried so far, that in a late case, although 
 the lease was for 999 years, and it was clear and indeed 
 admitted that the reversion was of no value to the lessor, 
 Sir L. Shadwell, V. C, refused to sustain an injunction 
 against ejectment brought for breach of a covenant to insure, 
 on this ground, that the piinciple is that the Court will not 
 relieve, except in cases where payment of money is a com- 
 plete compensation, and will put the party in the same 
 situation as he would have been in if there had been no 
 breach ; and that in the case of a breach of covenant to 
 insure, the landlord cannot, by any payment of money, be 
 put into the same situation as he was entitled to be under 
 the covenant {q). And the refusal to grant relief in cases 
 of breach of covenant goes also this length, that where a 
 lease contains covenants on the part of the lessee, and a 
 covenant for renewal on the part of the lessor, if the rent 
 is duly paid and the covenants observed, with a clause 
 
 (ji) Lord Eldon has spoken of the (o) 16 Ves. 402, and 13 Ves. 56. 
 
 piinciple of relief against forfeiture in (p) While v. Warner, 2 Mer. 459. 
 
 tlie case of non-payment of rent, as ut- (7) Green v. Bridges, 4 Sim. 96. 
 terly without foundation, 18 Ves, 58.
 
 90 HTAYiNo rnoTEEDiMow [part 1. 
 
 of ceiiHcr and re-entry if the covenanU slumld be broken ; 
 and the* lcHrt4-o during the term cuinnulB such breuchcs of 
 cuvenunt, thul thi- Court would not, ilurin^ tliu term, liavc 
 prevented the IcMtur from txikui^ udviinta{^e of itieni, had 
 hf brrii I'onuHuut of the Itreach, it \\\\\ not nilerftTC after 
 the ('\|>iruti<'n of the term to rrHtmui htm iiom brin|;in(; 
 ejectment nor to eom|)el hmi tu {^unt u reniwal, if he had 
 no notice ot the breaclicA tdl ufier tiie expinition of the 
 term (r). 
 
 fi. Hrhtrf has, however, Ijccn {^iven in a ease where the 
 landlord was a lunatic, and an ejeetmcnt wuk brou^hl by 
 the connnittee for hri'ach of a covenant to repair ; the (xjurt 
 (granted an injunction, on the assumption that it wom n 
 case in which a judicious landlord would n(^)t have taken 
 atlvantat;c of the breach, for it wouhl be an administration 
 in lunacy extremely jirejudicial to the CHtates of lunaticH, 
 if too hard measures wcie utlo|)ted with the tenauth. The 
 breach of covenant docs not apjMjar to have been obhti- 
 natc(«). This case can however hardly be called in strict- 
 ness an exce|)(ion to ixfneral rule, for the Court was not 
 adjudicatini; between the hostile claims of landlord and 
 tenant; but acting in lunacy, put itself in the place of the 
 lunatic, and on his bclr.ilf as landlord, refused to lake ad- 
 vantacjc of the forfeiture. 
 
 I'ndcrvery special circumstances also an injunction may 
 be f^ranted to relieve against forfeiture for breach of cove- 
 nant lo rqmir. Thus in the case of I/annam v. South 
 lAimbeth Watcrworhs Compaiii/ (t), whtro the phunlid was 
 lessee of the defendants, with a covenant to repair, and in de- 
 fault, forfeiture of the lease; and the plaintiff beini: in treaty 
 for coni|)ensation with another comjianv, winch had parlia- 
 mentary powers to take the premises, allo\ve<l pendintj 
 such treaty the projicr time for repairing within the covc- 
 
 (r) 7"/i<>m;>»«>n V. Gui/on, 5 Sim.Gj. («) £x parte I'anghan, 1 Torn, h 
 
 See alw the oWrvations on this nub- Rum. 434. 
 jcct, 4 .'ami. Conv. 3d edit. 367. (t) 2 .Mcr. 61 ; «< the n. (a), 63.
 
 CHAP. III.] AT LAW AND IN OTHER COURTS. 91 
 
 nant to elapse, the Lord Chancellor thought that in such a 
 case, where what was insisted on was, that the tenant 
 should repair premises pending a treaty with a third party, 
 in the result of which, if completed, those premises would 
 immediately after he pulled down, an injunction would be 
 proper; and an injunction to restrain ejectment was accord- 
 ingly granted, the plaintiff, the lessee, undertaking to obey 
 such orders as the Court should make, on the defendants 
 applying to have repairs, and also to obey the orders of the 
 Court on any application of the defendants, if it should ap- 
 pear that they had been required to accept for their interest 
 as lessors from the third parties, a less compensation than 
 they would have obtained, if the premises had been re- 
 paired according to the terms of the lease. 
 
 6. Equity will also relieve where the party entitled in 
 consequence of the breach of covenant, by his own conduct 
 waives the breach. Thus in a case where the obligee of a 
 bond wrote to the obligors in these terms, " If the interest 
 of the money be regularly paid, it is not my intention to 
 
 call in the amount for four years from this day ." 
 
 The interest was regularly paid with the exception of two 
 periods, on one of which it was paid one, and on another 
 two days after the proper day. But the obligee accepted 
 such payments, and accepted subsequent regular payments 
 of interest: it was held on appeal by the Lord Chancellor, 
 1st, that the memorandum amounted to an undertaking- 
 binding on the obligee; and 2dly, that where money is ten- 
 dered after it is due, and the person to whom it has been 
 tendered does not think fit to refuse it, it is a waiver of the 
 objection ; and that it must be taken as a regular payment, 
 if the person receives it the day after without making any 
 objection. On these grounds the obligee was restrained 
 from suing the obligors at law (u). 
 
 But where the assignee of a lease gives a bond for the 
 performance of the covenants, and then breaks the cove- 
 
 (m) Norton V. Wood, 1 Russ. & My. 178.
 
 94 STAYINO PnorEEDINGS fPART I. 
 
 mints and ubunduns the posiurartiun, the uKsignurs do not 
 wuive thtir ri^'ht to p ' ii the bond, by enterinf^ into 
 
 |>os.>ieti>iun unci Mib-b ' And so \\h«-re there is u 
 
 covenant u^uinHi currying on certain trudch, wuiver by the 
 hindh>nt uh to one tnide i* not a uuivcr uk to all. 'Ihun in a 
 ras<' where u lease wan grunted with a c<»venant ayainnt keep- 
 ing an o)>cn Hhop ; |ienuiHKion by the letiHor to carry on n 
 particular tnule, was held not to amount to a licence to carry 
 on any other trade ; and under huch a covenant, the lesKceii 
 having carrieil on for neveral yearn dirt'etent tnide* without 
 molestation, a sub-lessee who afterwards carried on another 
 trade, was held not entitled to an injunction to restntin an 
 ejectment brought for breach of the covenant (y). The 
 lessors were a corporation, and the Bub-lessee having, with 
 the knowlcib^o of some of the '.'uvernors of the cor(M>ration, 
 e.\|>eniled coiisithMubln sums in repairs and adapting the 
 premises lui his trade, a cjucstion arose whether notice to 
 such governors was notice to the corporation. The Court 
 soi-ms to have inclined to consider the corj)oration bound, 
 but did Hot (JccHJi- the point (r). 
 
 Hcrnrc CdMihuling this subject it must be observed, that 
 if a landlord bringing ejectment htus stated in his particulars 
 several breaches of covenant, and the court of law has 
 heard evidence only on one, on which a verdict has been 
 given for the plaintift", although that one is such that 
 equity might possibly relieve against it, yet if the others 
 arc such as equity would not relieve against, and the land- 
 lord in his answer swears he could prove them, an injunc- 
 tion will not be granted to stay further proceedings at law, 
 as the only elTect of that would be to send the parties to 
 trv other breaches, which if the answer is true could be 
 ])roved, and in resjiect of which ecjuitv could not inter- 
 fere (a). 
 
 (j) .■fM^/^rjon v.Rii^i/,1 Russ. 313. (:) Ibid. 
 
 (y) Machrr v. Foundling Ifoipital, (a) /xiraJ v. I^rd lianrlaghtS Vc». 
 
 1 Ves. & B. 188. \ Bea. 24.
 
 CHAP, in.] AT LAW AND IN OTHER COURTS. 93 
 
 7. I. It is quite clear that no relief against forfeiture of 
 the legal title to a ship can be had in equity, where the 
 forms prescribed by the Ship Registry Acts have not been 
 complied with {h), unless, perhaps, in the case of fraud ; 
 and even then the preponderance of judicial opinion ap- 
 pears to be in support of the doctrine, that equitable relief 
 cannot be obtained (c). 
 
 II. But the Registry Acts do not prohibit an equitable 
 interest, or oust the jurisdiction of equity to grant relief, 
 as between two parties, one of whom has the better equity, 
 where the forms prescribed by the Registry Acts have, 
 so far as the circumstances admit, been complied with, and 
 can be fully complied with by the aid of the interposition 
 of equity. This was decided in a case where A. having 
 mortgaged his share of a ship to B., afterwards mortgaged 
 it to C, without notice of B.'s mortgage; C. paid ofi' the 
 debt of B,, who refused to deliver up his bill of sale, and 
 afterwards re-assigned to A. At the time of the bill of 
 sale to C, the ship was out at sea, and had been so from 
 a period antecedent to the first mortgage, having been duly 
 registered, and having on board her certificate. If C, the 
 mortgagee, could not obtain the certificate to cause to be 
 indorsed thereon his bill of sale, within ten days after the 
 arrival of the ship, his equitable title would of course have 
 been void, for want of compliance with the Registry Acts, 
 and the defendants, the assignees of the mortgagor, (who 
 had in the mean time become a bankrupt,) having in them 
 the legal title, would have been enabled, if equity did not 
 interfere, to complete their legal title, and thus destroy the 
 equitable title of C. The Court, after an elaborate inves- 
 tigation of the subject and taking time to consider, held, 
 that the Registry Acts merely nullified a sale both at law 
 
 {b')Hibhertv.llolUston,^}B>t.CC (c) Mestaer v, Gillespie, 11 VeSi 
 
 571, and see the n. i ; Thompson v. 621 ; Newnham v. Graves, 1 Mad* 
 
 Perry, 1 Mad. 39 ; and see Curtis v, 399, n. 3 Barker v. Chapman, ibid, 
 
 Leake, 6 Ves. 739 j see also 34 Geo. 400, n. 
 3, cap. 68.
 
 Ot 8T.lVIN(i l'Uo( KtDINcis [tAKT 1. 
 
 and 111 c'juily, ulicie the lurtuii IkuI not bi-cii cuiiiplu-il 
 Willi ; liul did nut, iir> Ix^twcc-ii cluiiiuint!> ^^llu have eijiiully 
 ulUiidcd tu the* turtiiM of llie Act, tuke uuuy the c<{uitublu 
 title to rehef which in other rt-*|MctH one may have a^uinst 
 the other; thul there wum nothtn^ in the Uc-)4l^try Acts tu 
 prevent the iiiurtgu^^e of u nhip ; ihut in the |>nnci)>ul case 
 the niortf^u^or vvuh hound t*j ^ivc vuhditv (u hirt hill of liule 
 to ('., and ou^lit not to hiive taken an asi>i;;nnient from 
 H. utter hiH mortgage hud been paid off by C. ; and 
 then lore the Court kuuI it would utaiit an iniuiietion to 
 re.^tiuin the ileteiKlanlH trom oblaiiniii^ th«.- cerlilicute ut 
 registry uf the bhip, or from duing any uct to prevent C. 
 IVoin procurinij: his bill of sale to be imlorned «»n the certi- 
 licale, until the deiendaiiLs should pay him whul wax due 
 thereon. Hut uh the ship hail been by contient »uld i>ub- 
 jtxt tu the cuiiHent of the Court, the money wuh ordered 
 to be j)aid to the pluinliir(r/). 
 
 And it has been determined, ilial where a bill of i»ulc in 
 mude of n ship which is at bea, the pro|)crty iH vented ia\- 
 niedialely in the vendee, if all the formalities of the U«*u;istry 
 Act aie complied Willi, st> far as they ran be, ut the time of 
 the transfer, subject only to be divcstcti by the neirlcct of 
 the vendor lo make the indorsement on the certificate of 
 legistiy, williin the ten days after the return of the ship 
 into port. Ami therefore a jxiwcr of attoniey given by the 
 vendor at the time of the transfer, is not avoided by his 
 bankru|jtcy, but the attorney may perform the indorsement, 
 notwitlisiandiiiLr such bankrujitcy. The bankrupt himself 
 might do il il he luul Liiveii no |)ower of attorney (e). 
 
 (d) Thompion v. Smiik, 1 Mad. 395. (f ) Diion v. Kwdrf, 3 Mer. 322.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 
 
 95 
 
 CHAPTER IV. 
 
 Of the Jurisdiction in yeneral. 
 
 1. Courls of Equity act on the Person 
 
 proceeding, and not on the Court 
 in which he is proceeding. 
 
 2. Jurisdiction to stay Proceedings in 
 
 the Admiralty Courts ; in the 
 Coiirts if Scotland a)id Ireland; 
 and generally in any foreign 
 Court, 
 
 3. Jurisdiction to stay Proceedi7igs in 
 
 other Courts of Equity, 
 
 4. And in the same Court, 
 
 5. Distinction where the concurrent 
 
 Suits are not precisely for the 
 same Matter. 
 
 6. Cases where Equity will restrain 
 
 Proceedings in other Courts, on 
 the mere ground of the Court liav- 
 ing drawn the Matter icithin its 
 own Jurisdiction. 
 
 7. Staying Proceedings at Law after 
 
 Decree in a Creditors' Suit, 
 
 1. General Rule that Equity 
 
 will stay Proceedings at 
 Law after, but not before. 
 Decree for an Account. 
 
 2. By whom the Motion may 
 
 be made, 
 
 3. Discussion of the Question, 
 
 whether Priority in the 
 Decree is essential. 
 4* Effect on the Jurisdiction, of 
 
 the Nature of the Suit in 
 Equity. 
 
 5. Distinction between theCases 
 
 where theJudgmentat Law 
 is de bonis testatoiis, and 
 ichere it is de bonis testa- 
 toris et si non de propriis. 
 
 6. Discussion if Mr. TFi7/ia?/is' 
 
 Strictures on the latter 
 Distinction, 
 1. General Result of the Cases 
 on the Three foregoing 
 Points. 
 
 8. Jurisdiction as to restt-aining Actions 
 
 against the Bank of England, 
 
 9. Jurisdiction to relieve against an 
 
 Award, 
 
 10. Jurisdiction to restrain a Parly 
 from proceeding by Eitent under 
 
 an Act of Parliament, 
 
 11 . Of restraining Proceedings at Law 
 against the Officers of the Court, 
 where they have acted under irre- 
 gularOrders; or irregularly under 
 Orders in themselves regular, 
 
 12. General Result of the Cases. 
 
 13. Jurisdiction to restrain the Offi- 
 
 cers of the Court from seeking 
 Redress in any other Court. 
 
 14. Whether Equity has Jurisdiction 
 to restrain the Subject from Pe- 
 titioning the Legislature. 
 
 1 HERE are a great many cases in which the question 
 has been, not whether, admitting the general jurisdiction, 
 the merits were such as to call for the interposition of the
 
 W M A\1.>G I'nOCBEblNGH [pAHTI. 
 
 ('<»mt by iii)uiu'tioij ; l)ul wli< lli«.-r, in reftTfUcc to llie |»;u- 
 tuiilai kind ul cubv, c((iiity huil juiu»«Jictiua tu iiitcrttrc hy 
 injuiictiuii. 
 
 1 pru|>oHc in thin cliuptrr to diKcuKH tlu-iie cukch. 
 
 1 . Tix |iiii)ci|)ic on \s)iicl) (.'ourljiorc(|uity act in rchiruni- 
 ing thr probccution ofjudiciiil procccilingn in otiicr (xiurlii, 
 is to act on the pirsim prcH-cfdinjj:, and not on the (.<»urt 
 in which Mich pci>on in procecdmg. In the language of 
 an old case, they do not in)|M'nch the jurindirlion of the 
 other ("ouit, (as in the case of a prolnhition), where, if th<- 
 (-'ourt proceeds, the jud^e is guilty of a contempt ; but the 
 injunction slays the party from proceeding, and at the 
 same time the Couit of e(juitv sup|)OHc.s the otiier Court to 
 have jurisdiction, l>ut does iKtt think proper, from nane 
 collateral circumstances, to sutfer the party to apply and 
 take the benefit of that juri'^diction (a). [']>iju this jfrinci- 
 plc it seems immaterial where or what the Court is in which 
 proceedings arc sought to be rcstmined, provided i\\v party 
 nought to be restrained is amenable to the jurisdiction, and 
 is capable of being acted on by the process of contempt of 
 the Court ; and the e\t( nsion of the jurisdiction of c({uity 
 to stay proceedings in other Courts besides Courts of com- 
 mon law, and in foreign Courts as well as in Courts within 
 the jurisilictioii of the (>ourt of Chancery, l>ecomes, when 
 considered in reference to the principle slated, as rational 
 and intelliuiblc, as it is lirmly established in j>racticc. 
 
 Instances of the interference of the Court of Chancery 
 to stay proceedings in the Ecclesiastical Courts, are to be 
 found in very early cases. In the one already referred 
 io(b), a party had long acted under a will, :uid had ad- 
 mitted the validity of the probate in proceedings in Chan- 
 cery, and in tile House of Lords ; and then sought, without 
 
 (o) Sheffield v. Diicheu of Buck- cellor, p 648. 
 
 in^ham, 1 .\lk. 628, see p. 630; see (fc) Sheffield v. Dvchtu of Dueling- 
 
 also Bunhur\i\. Bunburti, 3 Jur. 644, ham, 1 Alk. 628. 
 the obsenations of ihc Lord Chan-
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 97 
 
 bringing forward any new evidence, to controvert the va- 
 lidity of the will in the ecclesiastical Court. An injunction 
 was granted to restrain the party from proceeding in the 
 ecclesiastical Court. And in another case before the same 
 learned judge, where a woman of mean circumstances 
 and bad character entrapped an infant ward of chancery 
 into a marriage, under circumstances amounting to a 
 gross contempt of the Court, and afterwards obtained a 
 decree for alimony in the ecclesiastical Court, and sentence 
 of excommunication against her infant husband and his 
 guardian ; the Court, on a petition being presented by the 
 guardian for a prohibition to restrain proceedings upon 
 the decree and the excommunication, refused the prohibi- 
 tion, expressly admitting the jurisdiction of the ecclesias- 
 tical Court, but held that having regard to the jurisdiction 
 of the Court of Chancery for the protection of its wards, and 
 to the conduct of the wife, the Court had jurisdiction to 
 restrain the loife hy injunction from proceeding, and accord- 
 ingly granted an injunction (c). 
 
 2. In modern times injunctions have been granted to 
 restrain proceedings in Courts of various jurisdiction. Thus 
 in a late case, where a woman had instituted a suit in the 
 Admiralty Court, to recover a sum of money for wages as 
 cook of a small merchant vessel ; the owners defended on 
 the ground that she was the wife of the captain ; but evi- 
 dence of this fact could not be obtained until the suit had 
 advanced beyond that stage at which fresh evidence could, 
 according to the rules of the Admiralty Court, be admitted. 
 On these facts being verified by affidavit, an injunction was 
 granted to restrain further proceedings in the suit until an- 
 swer or further order, the plaintiff in equity paying into Court 
 the sum recovered and the costs in the Admiralty Court (i/). 
 On similar principles, probably, it has been held, in a case 
 where a woman was in possession of her husband's personal 
 
 (c) mil V. Turner, 1 Atk. 516. 
 ((i) Jarvis v. Chandler, 1 Turn. & Russ. 319. 
 
 H
 
 98 MTAYIXC; PIlOCKBDlSGii (rAKTI. 
 
 rtttutc Hi hiii ailiiiiiMklratnx, uiid claiiucHi an etfuiiuljlc 
 iiittTfiit ill the whulc, (but khc \%u» ciitillcil tu uu uij unc- 
 tion to rtftUuiii llie ucM i>( kilt Iroiu jiroti-etliiig lor n ilis- 
 tnbuliun 111 the ecclrnuiMticul Court, ulicrc her e<|uiUiblu 
 till«> couKI nt>t Ik* ii< t ' An utti-inpt wan iiititiu in 
 
 (iUncoU V. Imhij{J\ ; tile juriMliclion ol eijuity to 
 
 ri>iitniiii procciHhngii in tho Adinirulty Court upon u hot- 
 t 'lid, on tl l that l' ■• r .jierly 
 
 . .ill thr \ v Court. I u|Kjii 
 
 e4|uitu))lt' pniiciplcii, uiul hud {lower to luoderatc the amount 
 riH-ovrniblr \\\M\\ tlir bond tf t' .rid it ; but the 
 
 Court held the- juriHtlitlion cl- i. " »nch an iu- 
 
 strumciit. whclhtr il Ix- u bottomry bond or uny other 
 spocieH of bwiul, is a »ccuriiy for iiionev alU't'cd to huvr 
 l)ern obtuuicd under clrculu^tuncl■>t which u Court ot equity 
 ou^ht not to (^ve efl'ect to, and the plaintifl'it come here 
 assertini; their etpiity to get rid of the obb^atioii, whether 
 as agaiiiAt the potu»e»sor or againi^t the pro|>erty, in the ordi- 
 tiiiry course of adniinistnition of equity in this Court (j^)." 
 The Court has j)roctedcd even a hlep furlhr-r in a very late 
 case, in which proceedings having been taken in the Ad- 
 liiiralty (.'ourt on u bottomry bond, given under circum- 
 stances atlordiug great suspicion of fraud, Lord I<uugdule, 
 M. H., ailiuitting that the Court of Admiralty had jurisdic- 
 tion to dctonuine on the validity of the bond, and hUtliciciil 
 power to investigate the circumstances, and to adjudicate, 
 iTstrainod the proceedings, on the ground that it appeared 
 the piocecilings instituted in the (J<iurt of Chancery were 
 Hda))tcd more conveniently, directly, and eli'ectually to sift 
 the matter, than tho jKirlicular form of proceedmg then 
 adopted in the Admiralty Court (A). It is not necessary, 
 in order t4) induce the Court to interfere, that it should find 
 a case which would entitle the plainlifl to relief at all 
 events. It is quite sudicicut if the Court tiuds upon the 
 
 (e) Backhmi*e y.Hunt(T,\ Cot, dA'2. Afirh. T. 1840. 6 Jun»l. 262. The 
 (/) 3 My. ^. Cr. 451. • >nl» appealed from thu order, 
 
 (g) Sec also Dofciivi V. LvaU,il,' . .c cav: it now waiting for (he 
 
 453, notit. Lord Cbaoocllor'i judgrocnt. 
 {h) Duncan v. V''.-<; • P ' ■
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 99 
 
 pleadings and upon the evidence a case which makes the 
 transaction a proper subject of investigation in a Court of 
 equity (i). A party is not deprived of his equity for an 
 injunction, because another Court, assuming jurisdiction 
 to decide on the equities of the case, has refused to stay 
 its own proceedings. Thus in a case where A. apphed for 
 a loan of 700Z. to B., one of two executors B. and C, and 
 gave two bonds to both executors for 400Z. and 300/. ; he 
 received the 400Z. but not the 300/. But he allowed his 
 bond for 300/. to remain for four years in the hands of the 
 executors without calling for the money, although C. had a 
 promissory note for 300/. of the testator's in his hands. C. 
 afterwards became insolvent, and then B., for the first time, 
 was informed that the 300/. had not been advanced, and 
 was requested to give up the bond ; he refused to do so, 
 and brought an action against A. on the bond ; A. then 
 procured a release of the action from C, and applied to the 
 Court of law to stay proceedings ; but that Court refused 
 the application. On this state of circumstances Lord Eldon 
 granted an injunction on the terms of the plaintiff paying 
 the 300/. into Court, with the interest and costs at law (A;). 
 But though the Court of Chancery has jurisdiction to 
 stay a suit in other Courts, notwithstanding those Courts 
 may have necessary powers for doing full justice, yet such 
 jurisdiction will not always be exercised. Thus in a case 
 before Lord Hardwicke, where the captain of a trader came 
 for an injunction to stay a suit in the Admiralty Court, on 
 the ground that the defendants, who were privateers, had 
 taken his papers, and made him sign one on which he 
 must in that Court be cast; Lord Hardwicke said, to exer- 
 cise jurisdiction in such a case would entirely defeat the 
 act of parliament in relation to prizes, as upon every taking 
 of a trader the owners might come for an injunction on 
 such a pretence. And besides, the Court of Admiralty 
 could by their own rules put such a case in a course of 
 
 (i) Glascott V. Lang, 3 My. & Cr. 451. 
 (k) Whitfield V. Balfe, Coop. 89. 
 
 h2
 
 100 8TAYING PROCKBDlNGti [PART 1. 
 
 inquiry, ami do full juHlicc ; unii he icfuHcU the injunc- 
 tion (/). 
 
 So in another cane before the winie learned judge, where 
 the dcteudaut having iuHtituted a Kuit nt the eccleiiiubtical 
 ('ourt for stihtruction of liiheH, the defendant did not there 
 plead any diHihargi-, htil iilctl a bdl to cHtuliliHh a nio<luii, 
 iUid u|x}n that hurc KuggeiiUun of u niodun moved for an 
 injunction. The Lord Chancillor huul, that tlu- plaintiH' 
 nn^hl have |ilcailcil it ni tin* tcclesiuhtu'ul ("ourt, and if 
 that (/uurt would not detcrnune on the Haute evidence a« 
 a court «if law wouUl have done, that w;is j)ro|Kr ground 
 for a prohihilion from the (-^ourt of King's Hcticli, and 
 rcfusetl to interfere (;/i). 
 
 An injunction will als(j be i:rant«rd till the hearing m a 
 tiuit for tlu" administration of assets, to restrain a legatee 
 liom suing in the ecclesiastical Court for hia legacy («). It 
 must be observed, however, as matter of practice, that the 
 common injunction does not aj»j)ly to stay proceedings in 
 the ecclesiastical Court, nor, it seems, in the Admiralty 
 Court. To stay proceedings in these Courts, an injunction 
 must be moved for specially (o). 
 
 It is (|uitc clear that a Court of equity has no jurisdic- 
 tion to interfere against obtaining probate of a will of per- 
 .sonalty, on the ground of the will having been obtained by 
 fraud or forgery (/j). But there is a distinction where the 
 case is not merely that the will has been obtained by fraud, 
 but that fratid has been j)ractised against the next of kin, 
 after the death of the testator, so as t«» lead him mto doing 
 »uch acts as would enable the party practising the fraud 
 to obtain probate of a forged will. Under such circuai- 
 
 (/) Aiwn. 3 Alk. 350. v. Mucjuue. Dick. 223. 
 
 (m) Roth^ram v. Fanihaxc, 3 Alk. (;») Kerriek ». liranibu, I Str. 673, 
 
 628. notii ; 7 Br. P. C. 437 ; Siephent^yit r. 
 
 (n) Stonehoitse v. Stonehouse, Dick. Gardner, 2 I'. Wms. 286 ; 1 \'e«. 
 
 98 ; Smith v. Kemjwn, ibid. 769 ; see sen. 287 ; and &c€ Red. PI. 257 ; and 
 
 also Anon. I Atk. 491. 1 Will. Ex. 38 ; &cc also Kelton r. 
 
 (o) .4n.m. 1 P. Wms. 301 ; lietd OUficld.2 Vera. 76 ; Plumt^.BtaU, 
 
 T. Botcyer, 1 Price, 101 ; Macnamara 1 P. Wms. 389.
 
 CHAP, ly.] AT LAW AND IN OTHER COURTS. 101 
 
 stances Lord Hardwicke interfered in a circuitous manner 
 by decreeing the defendant to consent in the ecclesiastical 
 Court to a revocation of probate (^). 
 
 There are several instances of injunctions to restrain 
 proceedings in the Courts in Scotland and Ireland (r). 
 And in Lord Portarlington v. Soulhy (s), where the action 
 was brought in Ireland, the question of jurisdiction was 
 elaborately discussed by Lord Brougham, C, who said 
 that the Court had jurisdiction, not upon any ground of 
 superintending authority residing in the Court of Chancery 
 over courts in Ireland, but on the ground that the defend- 
 ants were within the power of the Court ; his Lordship ob- 
 served, in the course of his judgment, "in truth nothing- 
 can be more unfounded than the doubts of the jurisdiction; 
 that is grounded, like all other jurisdictions of the Court, 
 not upon any pretension to the exercise of judicial and 
 administrative rights abroad, but on the circumstance of 
 the person of the party, on whom this order is made, being 
 within the power of the Court. If the Court can command 
 him to bring home goods from abroad, or to assign chattel 
 interests, or to convey real property locally situate abroad ; 
 if for instance, (as in Peym v. Lord Baltimore {t) ), it can 
 decree the performance of an agreement touching the 
 boundary of a province in North America, or as in the case 
 of Toller v. Carteret (u), can foreclose a mortgage in the 
 Isle of Sark, one of the channel islands ; in precisely the 
 like manner it can restrain the party within the limits of 
 its j urisdiction, from doing any thing abroad, whether the 
 thing forbidden be a conveyance or other act in pais, or 
 the institution or prosecution of an action in a foreign 
 Court Or)." 
 
 Upon the same principle the Courts of equity have 
 
 (<;) Burnesley v. Powel,l Ves. sen. Soulhy, 3 My. & K. 108; Bushhy v. 
 
 284. Munday, 5 Mad. 297 ; Kennedy v. 
 
 (r) Wharton v. May, 5 Ves. 71 ; E. Cassilis, 2 Swan. 313. 
 
 Beauchamp v. Mavqids Huniley, Jac. (s) 3 My. & K. 104. 
 
 546; Harrison v. Gurney, 2 Jac. & (0 1 Ves. sen. 444. 
 
 W. 563 ; Campbell v. Houlditch, cited («) 2 Vern. 494. 
 
 by the Court in Lord Portarlington v. (i) 3 Myl. & K. 108.
 
 100 KTAYisc pnorEBOi«(0!> [part 1. 
 
 undrr (irruiiiHlanres n^tniincd |>articii within tJu-ir juris- 
 tiu'tioii J'ri»in prooordm^ in oiluT Ibrritjii Courtj*, at for 
 iiihtiiiicr, III tlir < ourt of ihc I.uni Muyor "f the city of 
 London (y). And in a very lat« ctuw, lieforc Kurd Lan|;- 
 dnlc, M. K. (:>, the di IcMtlniitH ni fc|uitv had inntilutod 
 procrttlin^ in the Court of Dcmcrura, lnvolvln^, in ihc 
 opinion of the Court, qucntionM do|)endin(>[oii tlic luw of llol- 
 innd niid aUo un the hiw of Mni;lan(l, und further (jui>fttionfi 
 of ni'cotinl which couhl unlv Im* tukfii in thiM rountrv ; undrr 
 thoHn riniiiu^ttanccH hin LonUhip rr«trainod th(> drfrndantu 
 from pioKCcutin^ proceedings in I)«'incrarn, putting how- 
 ever the plaintiti' on tcmi« to suhinit to uiul rnrry into 
 effect tuiy order wliuli the Court niij^ht think (it (o make 
 in resjM'ct to the proceedings in Dcnicnim (a). 
 
 Oil th«' other hand, when' proi'eedinijH nt law arc iiiHti- 
 tuttd for the purposf of drawiiij^ into rjuesiioii inalt«TK of 
 foreii^i hiw which have already been adjuchcatod upon by 
 the forei<;n Court, eqiiilv will HRHi^t the jnri*idiction of the 
 forei'^n Court hy reslraiiiing Much proceedings at law. 
 This appears hy an old case, extracted from Lord Not- 
 tingham's MSS., in which the plaintifV sought a jiorpetual 
 injunction to stay actions brought by the dtleiidants, who 
 were English subJccUi, against the plaintiti, for seizing 
 goods of the defendants, for trading in Iceland contrary to 
 alleged privileges of the plaintiti there. The defcndantii 
 in equity claimed a right to trade there by virtue of the 
 articles of ])cace between this country and Denmark, and 
 by virtue of long custom. The plaintiti proved letters 
 patent from the King of Denmark for the sole trade of 
 Iceland, and the seizure of the gootls by virtue of that pa- 
 tent. A sentence of the ])roper Danish Court followed 
 the seizure, which sentence was confirmed by the Chan- 
 cellor of Denmark. The sentence so confinued had been 
 actually executed, und a payment of two-thirds actually 
 made to the King of Denmark. Lord Nottingham said, 
 
 (v) Barker v. Goodair, 1 1 Vcs. 7R ; (a) Scc llie tame caM od appeal, 
 
 Sieitkiugy. IUhren$, 2 My1.& C.5A1. 3 Jur. 644. 
 (i) fiunfrun/Y. fiunbury, lBea.318.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 103 
 
 that after all this, to send it to a trial at law, where either 
 the Court must pretend to judge of the validity of the 
 king's letters patent in Denmark, or of the exposition and 
 meaning- of the articles of peace; or that a common jury 
 should try whether the English had a right to trade to 
 Iceland, was monstrous and absurd; and decreed a per- 
 petual injunction (b). 
 
 3. A doubt seems till lately to have existed whether the 
 Court of Chancery will enjoin a party from proceeding in 
 another Court of equity (c) ; in the case referred to, several 
 legatees had. instituted a suit in the Exchequer for the ad- 
 ministration of the testator's estate, and pending that suit, 
 some of the residuary legatees filed their bill in Chancery, 
 and obtained a decree. On a motion made by the exe- 
 cutor, the defendant in Chancery, to restrain the other 
 legatees from proceeding with the suit in the Exchequer, 
 an order was made, by consent of the plaintiff in the Ex- 
 chequer, that the proceeding in the Exchequer should be 
 stayed ; and that the plaintiff in the Exchequer should be 
 restrained from commencing any other suit in any manner 
 touching the legacies claimed by them. They were to go 
 in under the decree in Chancery, and be paid their taxed 
 costs of the exchequer suit up to the time of their having 
 notice of the decree in Chancery, and their costs of the mo- 
 tion for an injunction. This point was, however, deter- 
 mined in a subsequent case {d) ; in that case there were 
 suits in England for the execution of the trusts of the will 
 of the testator, who had estates in England and Ireland, 
 and a decree had been made in those suits. An incum- 
 brancer upon the Irish estates having commenced a suit in 
 equity in Ireland, on behalf of himself and other creditors, 
 and continuing it after the decree in the English suit, while 
 at the same titne he carried in a charge under that decree, 
 the plaintiff in one of the English causes moved in those 
 
 (6) Blad V. Bamfield, 3 Swanst. the note of the learned reporter. 
 
 604. (d) Clarke v. Earl of Ormonde, Jac. 
 
 (c) Jackson v. Leaf, 1 Jac. & W. 108 and 546. 
 229, per Lord Eldon, p. 232 ; and see
 
 1(»4 >TAYI.N<i I'HOCEBDISGS [I'AHI 1. 
 
 raiisffi for ail iiijuiictiuii tu rchlniiit the cfLcliior from pro- 
 ccediii^ III tliu hUil iiintituU-ii by luiii iii In-luuil, uiid the 
 urtlrr \MiH iimde ; coKtji tu the jilaiiitiH in the Iri^h Buit 
 iMriiii; tilKiWed uiit uf the cittale u|> to the tune whrn he hud 
 niitice of the decree in the ICn^^hnh hint* ; hut tlie cortLb of 
 the upphentiun for the injunction were thrown on him. For 
 UM he wuM aware of the decree, and hod voluntarily conic in 
 and proved under it, he ou^ht not to have put the pluintifr 
 III the IjiL'lish e;ius4? to the eX{M:ni>e of mukin<^ Huch an np- 
 plicQtioii. 
 
 So ill //(irrisuii v. (iurney{f), and Jtont/i v. l^yctsin yj >, 
 ail nijimelii.n was ^ninted to rei»tniin proceedinj^s in (.'hun- 
 ceiv in Irehiiid, uli< n there wum a huit in Chancery in tliin 
 I'ountrv for the siimt- ohjccU, in which a tlecree hud been 
 iiiade(^). And in u very late cahe(/i) it wu-s held, that 
 where a suit has been instituted in chancery, and u decree 
 oblnined in it, the (Joint will restnnii proceedings institut<Ml 
 in another Court, whether Ilnglish or foreign, in re»|K-ct of 
 the very same matter- It is not to be underHtood that in 
 no case can a party jxndinj^ proceedinj^s under a decree 
 be perniitted to pursue such auxiliary remedies, but only 
 that they must not be tiiken without the leave of the Court, 
 on a special case madc(i) ; and a motion for an injunction 
 in such a case may be made by the defendiuit against the 
 ]>laiiititr. 
 
 In Harrison v. Cittrncy, the motion was made in the 
 English suit by the plaintifV in that suit. In Booth v. 
 Leyctsttr, :;ii(l in Wcddcrhurn v. \\ cdJerburu, the Eng- 
 lish suit and the foreign suit were both instituted by the 
 same plaintiH"; and in both these cases, the application for 
 an injunction was made in the I'^nglish cause on behalf of 
 the defendants. In limit h \. Lryccster the application 
 was by petition in the cause [J). 
 
 (r) 2 Jac.i W. 563. Law Journal, N.S. 205; 21JeaT.208. 
 
 (/) 1 Keen, 579. (i) Ibid. 
 
 (g ) See Boulter v. Iloulur,2 Bcav. (j ) S«e al»o Mochrr v. Rftil, 1 DaII 
 
 196. note (o). & U. 318; Uiluu r. U'ttherherd, 2 
 
 (h) WeiUtrburn r. U'tddtrbiirm, 9 Mer. 406.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 105 
 
 It has been said, indeed, on the subject of concurrent 
 suits, that as a general rule, where two Courts have con- 
 current jurisdiction over the same thing, that Court in 
 which the suit is commenced is entitled to retain it ; and 
 this was urged in an old case {k), but the Court did not 
 accede to the doctrine. The rule is now, that where a 
 party is proceeding at law and in equity at the same time, 
 and in respect of the same matter, the defendant may, 
 within a certain time after putting in his answer, alleging 
 that fact, obtain an order that the plaintiff may elect whe- 
 ther he will proceed at law or in equity, and for an injunc- 
 tion, if he shall elect to proceed in equity (/). And if it is 
 clear to the Court, or admitted, that the proceedings are for 
 the same matter, the injunction may be obtained with the 
 order to elect {m). And if a party is proceeding in a Court 
 in this country and also in a foreign Court, and afterwards 
 elects to proceed in the foreign Court, he will be restrained 
 from continuing to proceed in the suit instituted here («). 
 
 4. It is well settled that a Court of equity will exercise 
 jurisdiction to restrain other proceedings in the same Court. 
 Thus, if one creditor files a bill in Chancery, and afterwards 
 another files a bill, and the executor answers the second 
 directly and a decree is obtained, then it is competent for 
 the executor himself to restrain the first plaintiff from pro- 
 ceeding. And when a creditor is thus stopped, the course 
 is to pay him the costs that he has incurred prior to his 
 having notice of the decree (o). 
 
 5. But if the suits are for different objects, as, if the suit 
 in which a decree has been made is an administration suit 
 simply, and the second is a creditors' suit for an account, 
 and to have the assets marshalled, a benefit which the 
 creditors could not have under the first decree, the second 
 
 (k) Earl of Kewburg v. Wren, 1 (m) Hague v. Curtis, 1 Jac. & W. 
 
 Vern. 220. 449. 
 
 (I) See Smith's Pract. 2d edit. pp. (u) Fieters v. Tliompson, Coop. 294. 
 
 561 and 562, and the cases there cited, (o) Jackson \. Leaf, l Jac. & VV. 
 
 and 1st general order 9th May 1839. 229 j Faiton v. Douglas, 8 Ves. 520.
 
 10<; BTAYIKO PROTREDINOI! fPART I. 
 
 suit is not iinproj>cr (o). So in a case of two concurrent cre- 
 ditor suits airaiiist tht* a()niinir>tmtri.v of a tmdfr, the bill in 
 tlu' out' UHTrlv praviiii,' thi- oriliiuirv tlfcn'o for an account, 
 and the othrrchar^ipnr; that the adminiKtratrix had carried on 
 tlie trudr t\\\i\ applied th«- intoHtate's rstate to her own u»e, 
 and praying that s\u- might In- hfhl hahh- for what she n»i<4lit 
 havj' received hut for wilful default, the Ojurl refused to 
 Slav the second •^iiit ( jt). The distinction of these later lases 
 apjMiars to hav«- U-en acted ujKjn in a case where the pro- 
 ceeding^ were in different Courts of equity, so far back as 
 17fM. There a tnisl fund was settled mi the father for life, 
 ninaindcr to the children; and in default of issue, then as 
 to part of the preniises, to the father alwolutely. The father 
 instituted a suit in the I'Achcfpier, allef^intr that there was 
 no issue, and praying to have that j)art of the fund which 
 was limited to him in default of issue; and sidjseqtiently, 
 one claiming as issue instituted a suit in Chancery, applv- 
 w^ to the whole fund. The Lord ('haneellor refus/'d to 
 Slav tlie suit in the I*!xchcqucr, but restrained the trustees 
 from transferring the fund (tj). 
 
 It may be observetl here, that an injuin ti 'n granted bv 
 the Coiirt of Chancery in Ireland on an interlocutory aj>- 
 plication to restrain proceedings at law in that countr}*, is 
 not hindinrj on the Court hca*, in an application for an in- 
 junction to restrain proc«'cdings in the King's Bench here, 
 in respect of the same matter, though it may U- an nn- 
 fhoritt/. But a final juflf^inent of that Court, in a case 
 in which it has concurrent jurisdiction, might, it seems, be 
 entitled to a different consideration (r). 
 
 G. There is a numerous class of cases in which equity 
 will restrain proceedings at law, if proceedings have been 
 previously taken in equity, and have proceeded to a certain 
 
 (o) Pott V. G<i//ini, I Sim. Sc Stu. wis ullimately taken by arrangwnent 
 
 206. for an injuoclion oa termi. 
 
 (p) Bushv.C-Oi->mhs, Kempv.Ciwmbs, (q) Bullock ». Bnltock, 3 SwaaM. 
 
 MS., Rolls, Nov. 1840. The Court 698. 
 
 however intimating, that if the plain- (r) BaU v. StorU, I Sim. &l Siu. 
 
 tilT in the second suit prosecuted it, he 210. 
 must do so at his owq risk, an order
 
 CHAP. IV.] AT LA.W AND IN OTHER COURTS. 107 
 
 point, although originally the defendant might have had a 
 right to proceed at law; the Court treating it as an infrac- 
 tion of its jurisdiction to carry elsewhere a matter once 
 drawn within its jurisdiction, and on which it can do com- 
 plete justice. This jurisdiction seems to have been early 
 assumed ; for we find in a very old case, that an injunc- 
 tion was granted to restrain ejectment, on the ground that 
 it was touching the same premises for recovery of which a 
 suit was already depending in Chancery (s). And in another 
 case in Cary we find mention of an injunction being granted 
 to restrain proceedings in the ecclesiastical Court on a 
 matter already the subject of a suit in Chancery (t). 
 
 On this principle it has been decided in a late case that 
 if, in a suit for administration, the usual decree has been 
 made and no claim of any debt or damages having been 
 brought in, the master has made his report, and the cause 
 has been heard on further directions, and the executors 
 have paid in their balances; — the lessor of the testator will 
 be restrained from bringing an action against the executors 
 for breaches of covenant, on the ground that it may be 
 ascertained by the master as well as it could by a jury, whe- 
 ther any breach of covenant has been committed, and what is 
 the amount of the damages (m). So a party against whom 
 a decree has been made in a suit for specific performance, 
 may be restrained by special injunction from bringing an 
 action, on the express ground that it is an infringement of 
 the rules of the Court to bring an action while the Court 
 is working out a decree ; for where a proceeding is before 
 the Court, and the Court has full power to do justice, a 
 party ought not to resort to any other tribunal {x). If 
 there be delay in the master's office in working out a de- 
 cree, the party complaining should apply to the Court for 
 
 (s) Bullv. Budie, 1 Dick. 1, cited (t) Parrev. Tipelady, Cary, 73. 
 
 from the Reg. Lib. This is doubtless (n) Sutton v. Mashiter,2 Sim. 513. 
 
 the same case which is mentioned in (x) Frank v. Basnelt, 2 My. & K. 
 
 Cary, p. 50, and cited by Lord Hen- 618. See also Mocherv. Reed, 1 Ball 
 
 ley under the name of Bill v. Body ; & Bea. 318. 
 see Eden on Injunctions, 35.
 
 108 STAYING rROCBCDIXGB [PAnt I. 
 
 leave to briii^ ait action, uiitl the (,'ourt may, under cir- 
 cumHtiuu'eH, din*ct hucIi uclion t ' ' ■ ' * 
 
 AltliiiU!;h u Hulicilor nmy m. ..illy liriu;; 
 
 an action to recover hi* co»tA for bukineiu done in a «uit in 
 tquity, yet, if an order i* obtanicd in tlie suit, refcrrin;; it 
 to the luanter lo tux hiit eu»tii, he thereby uthnitti thejtiiin- 
 diction of thut ( 'ourt to enforce payment of the taxed bdl 
 by |»ro<'eHH of ' ■' ' 
 
 after the lull \. 
 
 7. I. With regard to slaymj^ |inM'cedin^.'ti iil law ii 
 the real or j)crj*uMfil represtnlJilivoh r<f a t( stator or intt _ 
 where a crcditorH* suit haA l>ccn instituted in Chancery, it in 
 well Hettlecl US j\ general rule, thut the Court han junHdiction 
 to restrain prooecdinj^s at law, after a decree huji Ixen made 
 for the administration of the assets. The principle is, that 
 the decree is in the nature of a judgment for all creditors, 
 and that as it cannot be pleaded at law, the Court of Chan- 
 cery wdl enjoin a creditor (a) ; and the rule, it is said, has 
 existed ever since Ixtrd Ilaniwickc's time at least(&). Hut 
 the Court will not stop a creditor at law , unless there is 
 a decree under w hich he can go in (r). Nor will a prelimi- 
 nary reference to take accounts of a testator's estate, under 
 the oth order of lOth May, 1830, have the eflect of a 
 decree for account, for the purpose of sustaining an injunc- 
 tion to restrain a particular creditor from proceeding against 
 the executor at law (il). 
 
 The rule is very clearly stated by Lord Redcsdalc in 
 Largan v. lioicen (c). His Lordship said, " Courta of 
 equity will not restrain proceedings of creditors at law 
 
 (y) t'Tank y. BatntU, \u]<Ta. v, C'onilijfc/#, 2 Y00.& Col. 43 ; Mar- 
 
 (:) Walton\.Johnu)n,2'>\m,Ab6; tin v. Martin, I VM.tea. 211. S«<- 
 
 }U Dillon, 2 Sch. & I^cf. 110; Ex also 3 Swini. 541 ; FarlcK r. Srl*^. 
 
 fHirte Belloti, 4 Mad. 379; /krr v. 11 Price. 95. 
 
 Wiggins, 4 Sim. 125. (t) I'atlon 1, Douglas, tupra. 
 
 (<i) Paiioii V. Dougloi. 8 Vcs. 520 ; (c ) Ruth ». //i^i, 4 Ve». 638. 
 
 Brooks V. Rt\inolds. I Br. C. C. 183; (0 Teaguc ». Rtchanis, 9 Law 
 
 Mifrricf V. Bank of Fngland, 2 Kro. .Touroal. N.S.293. 
 
 P.C. 4r>5. Mitf. pi. 168 ; llardcastle (<) 1 Scb.it UL 296, 
 
 V. C'tttlf.i Hr. C.C. 163: Hjwu.uJ
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 109 
 
 against executors to obtain payment of debts, merely on a 
 bill filed by other creditors to carry the trusts of the 
 will into execution, until there is a decree. But from the 
 moment of the decree the Court proceeds on the ground 
 that the decree is a judgment in favour of all creditors, and 
 that all ought to be paid according to their priorities as 
 they then stand ; and that the Court cannot execute its own 
 decree if it permits Courts of law to alter the course of pay- 
 ment (/). 
 
 But although the pendency of a creditors' suit is no bar 
 before decree to another creditor proceeding at law, yet if 
 a receiver has been appointed, his possession is the pos- 
 session of the parties to the suit, and therefore a judgment 
 creditor, whose judgment is posterior to that of a judgment 
 creditor a party to the suit, will not be allowed to bring an 
 action on his judgment (^). And it has been determined 
 that if the declaration at law has been delivered, so that 
 the common injunction only stays execution, it will be 
 extended to stay trial (A). 
 
 II. The injunction in a creditors' suit to stay another cre- 
 ditor from proceeding at law may be obtained either by the 
 executor or administrator (i), or by another creditor (j), or 
 by a legatee (A), or by the heir (Z). 
 
 Formerly it was thought necessary to file a separate bill 
 for an injunction (m), but now the injunction may be ob- 
 tained by motion in the existing suit for administration, 
 upon notice to the creditor. This practice is said to have 
 originated in a case of Cleverley v. Cleverley, before Lord 
 Rosslyn, and has been since constantly followed (??). 
 
 The practice, when an executor moves after decree in a 
 
 (/) 1 Sch. & Lef. 299. • (0 Uartin v. UarXxn, 1 Ves. sea. 
 
 {g) Thackaberry v. Christian, 1 211 ; and see also on these points 
 
 Hog. 109; and see Anon. 1 Hog. 69. Eden on Injunctions, 32; Williams' 
 
 (/() Dick. 668. Executors, 1360, c( sej. 
 
 (i) Paxionv. Donglas, 8 Ves. 520. (m) Brooks v. Reynolds, I Br. C.C. 
 
 (j) Brooks V. Reynolds, 1 Br. C.C. 183 ; and see Jac. 124. 
 
 183. («) 8 Ves. 520 j and see Jac. 
 
 {k) Clarke v. Lord Ormonde, Jac. 124. 
 108.
 
 11() RTAYIN'O moCilEDINCS [TART I. 
 
 1 rtxlilor^' ■>uil t.) • . il law \)\ aiiotlicr crc- 
 
 tliliJi, I-', lliul tl»« i4li- by ulluluMl, il he 
 
 hoH nut ittatfil It by hui luiiiwvr, whul lira the UA»elji ; uuil 
 the (\iurt will thi-n make thy uriitr oii the in 
 biuu^hl lutu (Jiiurt, )myiii^ the crcUilur ut Iuns i 
 
 till uotice o( the decree uud the ccattji uf the uppbca- 
 tiuu(u). The latter cohtrt have lieeii however ttunieliUien re- 
 
 The caM'H ulri*a(ly cited on thin Mubject hhuw that au 
 injunctiun to ntay prucicilinjib ul law will Ik- mui»t«d afi« r, 
 and lannut l>e granted beture, a decree huii l>een ubtuined 
 III tlir Hint ni ei|uily. It rciuums yet tu be cunhidcred — 
 \\ hcther an injunctiun cua be granted if the jud^uieut 
 al law has pnceded the decree in ccjuity ; — Ilow far the 
 jurisdiction is atiectcd by the nature ol thcHUil in ccjuity ; — 
 And how far it is atfccted by the kind uf judgment ubtatned 
 a I law. 
 
 III. \\ licthcr in order to warrant the interference of the 
 ( ourl iL IS material that the dccrte bhould have Ixnii made 
 before the judgment ^t law, wa.s much discussed in a late 
 cn9c(</), before which the point Recms not directly to have 
 arisen, except in Drewrt/ v. ThackcrirK In that case 
 actions had been brought upon ccrlitin bonds against an 
 administratrix, who before the trial agreed to withdraw her 
 j)lcas ; the plaintiH to take judgment, and that no bill in 
 e(juity should bo filed, or other proceeding taken, for set- 
 ting aside the judgment, or restraining the plaintiff from 
 levying execution. And the plaintiff was to be paid by 
 certain instalments, and was not to take out execution 
 except in default of payment of such instalments. This 
 was in 1818, shortly after Easter term : on the 13th Nov. 
 IH 18, a creditors' suit was instituted; the money was not 
 all paid at the perio<ls fixed ; and a decree for administra- 
 
 (o) Paston V. Douglat, 8 Vcs. 520; (p) Anon. 2 Sim. & Stu. 424 ; but 
 
 C'ilpin V. Lady Southampton, 18 \'c». see contTi, Jones r. Jontt, 5 Sim. 678. 
 4fi9. (g) Lt« V. Park, \ Kc«n, 714. 
 
 (r) 3 Swaas. 529.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. Ill 
 
 tion being made on the 19th of Nov. 1818, notice thereof 
 was given to the plaintiff at law, and an injunction was 
 obtained to restrain all further proceedings. After this 
 the sheriff took the intestate's goods in the hands of the 
 administratrix in execution. And thereupon Sir J. Leach, 
 V.C. made an order upon the sheriff to deliver up the 
 goods of the intestate, providing by such order that if there 
 should be a deficiency of the estate of the intestate to pay 
 in full to the bond creditors who had brought the action, 
 the debts due to them upon the administration of the 
 estate, they should be at liberty to proceed against the 
 administratrix at law, as if the sheriff had returned nulla 
 bona yrceter the sum received by such bond creditors upon 
 the administration of assets. A motion being made to 
 discharge this order before the Lord Chancellor, he inti- 
 mated that a course somewhat different from that adopted 
 by it must be taken, but made no order. His Lordship 
 expressed himself however in such a manner as to leave it 
 to be inferred, that he would hesitate considerably, before he 
 should hold that where the creditor has obtained a judg- 
 ment at law before any decree in a creditors' suit, equity 
 would restrain him from having the benefit of that judg- 
 ment. 
 
 In Leev. Park, Lord Langdale, M.R. after commenting 
 upon Drewry v. Thacker, held that it is not of course that 
 where the judgment at law is to recover de bonis testatoris, 
 the executors are entitled to restrain execution, without 
 reference to whether the judgment or the decree has priority. 
 And his Lordship, adverting to a dictum of Lord Eldon in 
 Clarke v. Lord Ormonde (s), said, that that was not the 
 ordinary rule, and in the case before him he refused, upon 
 a review of all the circumstances, to deprive the creditors, 
 .who had obtained judgment at law before the decree, of 
 the benefit of their judgment. A case of Goate v. Fryer {t) 
 
 (s) la that case Lord Eldon said, not take out execution, 
 that even if a creditor has got a judg- (t) 3 Brown, C. C. 23; see the 
 
 ment before a decree, though he may same case in 2 Cox, 201. 
 come in and prove as such, he must
 
 lU -TAVIKG PROCEBDINQS [rAlM 1. 
 
 appearti to have Ih-cu rrlu*tl on in /.«•«• v. Pork, in su|)|»ort 
 of tht* propuMlion, timt it ih immutcriiil wImiIrt ila* dtcroe 
 ur the juJ^iuciit Iium priurity in |)oinl uf time. Hut in timl 
 rase, UH rfporti'd in Hiuwn, tin* p«iiiit di<l nut uriM^* ; the 
 (juchtion nut Lmmii^, wliut wuulil be tlic ctlcct uf piiurity iu 
 the judgment over the decree, but whut would be the 
 etirct tin costH, of the action havin^ l>cen brought before 
 the bill wan hird. The cane wan thin : — An action \s\\a 
 brought ai;ainHt (toate an the adininihtratrix of her luin- 
 band, and a Huit waH aflerwardH iiiniituted for an account. 
 To the action slu' pleaded plen'r udministravit, and filed 
 her bill fur an injunction. A decree for an ucc(iunt was 
 made in tlu- suit the Hani) <l;iy that the defendant at law 
 pleaded her pha. And tlir (juestion \va« whelher tin- 
 ciininit)!! injunction, havin;j; been obtained in the injunction 
 xuit, should l)e extended to stay trial, or Hhoiild remain, 
 h:i\in<^ oiilv the effect of stiivin;^ rxcniliun ; and the LortI 
 (lianccllur held that it shouUI be extended to stay trial. — 
 liut he said that as the action teas commenced be/ore the 
 hill fdttl, the creditor, if he chose to come in under the 
 decree, and relin(|uish his action, might prove hi^ c.^is at 
 law in addition to his debt. 
 
 In Martin v. Martin (m), I-ord Ilardwicke naid, '' during 
 the course of these two causes, (vi/.. a creditors* suit, and 
 an action by a creditor at law), the executor cannot bring 
 a bill for an injunction, as the Court cannot tell xrhich will 
 obtain judijmcnt first ; for if the creditor suing at law does, 
 he must be first satisfied, as he will then gain a |)refer- 
 cnce in course of administration, both in law and equity ; 
 but if the decree be obtained first, then the Court will 
 restrain." And it seems that in that case an injunction 
 during the courec of the two causes, having been obtained 
 by the heir-at-law before the decree, had been actually dis- 
 aolved on that principle (.r^. 
 
 IV^ The second point is, thecfTecton the jurisdiction of the 
 
 («) 1 \cs. sen. p. 211. 
 
 (x) SeethcobscnratioDsof the Lord Chancellor, ibid. 212.
 
 CHAP. IV.] AT LAW AND IxN OTHER COUUT.'?. 113 
 
 nature of the suit in equity. On this point a distinction is 
 to be noticed where the suit is by some creditors on behalf 
 of themselves and all others who may come in, so that 
 the decree is for the benefit of all ; and where it is by cre- 
 ditors or other claimants on their own behalf merely, so 
 that the decree is merely for the personal demand of the 
 plaintiff. In the former case, the Court will not permit a 
 creditor to proceed at law after the first or usual decree /or 
 an account, because the creditors under that decree prove 
 their own debts, and the decree may be considered a judg- 
 ment for that. But in the second case, a mere decree for 
 an account of the demand of the plaintiff will not do, but 
 there must be a report and a final decree upon it (y) ; and 
 it follows, that in a suit of the first kind an executor will 
 not be allowed payments made to particular creditors after 
 the decree for an account ; but he will be allowed such pay- 
 ments in a suit of the second kind until final decree (z), 
 
 V. On the third point, viz., the efiect on the jurisdiction 
 of the particular nature of the judgment obtained at law, a 
 distinction has been taken in equity in several cases, which 
 demands a somewhat minute examination, both because its 
 soundness has been questioned in a work of great merit and 
 reputation (a), and because undoubtedly the cases are not 
 without some degree of vagueness and perhaps inaccuracy. 
 
 The distinction to which I refer has been made between 
 the cases where the judgment at law is de bo7iis testatoris, 
 and those where it is de bonis testatoris, et si non dej)rupriis. 
 In Terrewest v. Featherby{h), which was a suit instituted 
 by the plaintiff on behalf of herself and all other creditors, 
 it appeared that an action had been brought pending the 
 suit, by a bond creditor of the testator, against the defend- 
 ant Featherby, the executor, to which he pleaded non est 
 factum, and plene administravit. Upon both pleas issue 
 
 (i/) Vide Perry v. Plielifs, 10 Ves. (a) Williams' Law of Executors. 
 
 34 ; and Jones v. Jukes, 2 Yes. 518. (6) 2 Mer. 480. 
 
 (:) Ibid.
 
 Ill KTAViiio PKOCfiBomas [parti. 
 
 was jumc'il, uitil u vonlicl entered for Or* pluiiitiii ut hiw. 
 A iltxTfc I'ur un accuuiit huviiig bccii oIjUuiiciI, liu! cxecului 
 luuvctl fur uii liijuuctiuii iu rcftlnuii c&cculiuu ; tuid fur Uiv 
 cnxlitur it wiut ur^iil, timt the cxocutur'n pUtiK u( non est 
 factum and plrn^ adminUtrttvit bciiit; fitlMluxJ, lite t rtxiitor 
 HUH entitled to n jutl^^uient tie honis tntaturi* et ti mm tie 
 l>nt]triis, und thut tlicrv fore the Court uu^lil not tu interfere. 
 Lord ICIdon huid, " the (.'uurt huA lurver inteifered in tlic 
 inuniu-r i>uu^lil for u|Miii u jiid^iueut ile bunit iirupriu. \* 
 the crediu>r whu hiu ubtuincd iiuch a judgiticiit to come m 
 pitri passu with the reht of the creditors \ His judgment 
 would be of no hor*iee to hiin if he wert.- delajeii by u suit 
 here, until it could be aHccrttniifxl ulietJier there are ahM-(h 
 of (he lestalor to answer his «lciiiaiid>i. whu I ' ' ' < 
 
 unlil alli T all chance of leeoveiinj; b^uiiihl ii ■n- 
 
 honis proprus is entirely gone. " 'I'he injunction Wit» not 
 granted. 
 
 In Jinxih V. Shinncr{c), the same learned ju<lge -:ii<l, 
 " that if the plaintifl* ut law recovered judtroictit de bonis 
 trstatoris, the Court would not suller e\ Ix- takeji 
 
 out on such judt^nient; but that if Ik . .. ti dc hunt* 
 
 projiriis the Court could nut restrain execution." In that 
 case, an injunction had been ;:ranU.-d to re)^train an action 
 in which tlu; executor had pleaded plenc adniiuistrai.it, 
 ultra surticient to pay certain spccihed debts of a higher 
 nature. The order was discharged, the Court assuming, it 
 soeni!», that where the executor so pleaded, and the plain- 
 till falsilieil his plea, the jud^ineut would be dc honis pro- 
 priis. 
 
 Ill 7)>/cr V. Kearslty (d), after the usual decree oliUiiiie<l 
 by the plaintirt against an executor in a creditors' suit, 
 another creditor brought an action. The executor ob- 
 tained time to plead, and, after the decree, suflered JikI.:- 
 ment to go by default. The (Jourt granted an injuncUon, 
 saying, " the executor's suffering judgment to go by 
 (Itfault, was no more than his saying he was ready to do 
 whatever a Court of law or equity might think proper." 
 (<■) 2 Mcr. 481, n. (d) 2 Mer. 482, n.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 115 
 
 In a subsequent case before Lord Eldon(e), the judg- 
 ment at law was against the assets for damages, and against 
 the goods of the executor for costs only (/). The injunc- 
 tion was granted ; but his Lordship directed the defendant, 
 the executor, to pay to the plaintiff at law his costs at law, 
 including the costs of the trial. Although, therefore, the 
 creditor was restrained from proceeding against the assets, 
 he was, in effect, put in the same position as if he had been 
 allowed to proceed, and had recovered against the executor 
 personally for his costs. 
 
 In Fielden v. Fielden (g), it became unnecessary to con- 
 sider the point, the Court being of opinion that the execu- 
 tors had given instructions to their solicitor to plead to the 
 action, merely for the purpose of giving them time to apply 
 for the assistance of equity, and that the plea of pZe?ie ad- 
 ministravit was a mere form, adopted by the solicitor with- 
 out communication with his clients. And on these grounds 
 the case was held to fall within the reason of the decision 
 in Dyer v. Kearsley, and the executors entitled to the pro- 
 tection of the Court. 
 
 In Clarke v. Earl of Ormonde (h), Lord Eldon said, 
 " there are, I understand, two creditors here — one for 
 goods sold and delivered, and another for funeral expenses. 
 If they have obtained judgments, by which the executors 
 are personally liable de bonis propriis, I have nothing to 
 do with it ; but if they are judgments de bonis testatoris, 
 it would be a case for an injunction." Two late cases, 
 decided by Sir L. Shadwell, V. C, appear now to have 
 settled the rule in equity upon a clear basis ; I allude to 
 Price V. Evans {i), and Kent v. Pickering (k). In the 
 former of these cases, the action was brought by a bond 
 creditor of the intestate against his daughters and co-heirs, 
 who pleaded riens per descent, and the verdict was for the 
 
 (e) Loidv. Wormleighton, Jic. 148. (g) 1 Sim. & Stuart, 255. 
 
 (/) This it seems is the regular (/<) 1 Jac, 108, and seep. 124. 
 
 judgment at law, except where the (i) 4 Sim. 514. 
 
 executor pleads a release to himself, or (/c) 5 Sim. 569. 
 ne unque executor, see post, 120. 
 
 i2
 
 II'' HTAYIXG PROCBBDIKOS [I'AHT I. 
 
 pluintiH', who itud ilicrcfurc, uudcr the 3rd \V. k M. «.. 11, 
 
 u |)«tHomil riint'iiv u;;uiiuit the (luu<{li(rni un co-hvuM «jf iht- 
 iiili^iiitj-; hut Ix-fwrt- tlif iioliuii wuH Inixl, ihc ut»uiil dc- 
 crtv liiid Ihtii ubtuiiuHl in (.'iuiiiccr)' in a creditor's suit, and 
 thr iiiotiiiii Wfon* Inn lloiutr llu* \'icc-C'liiiii«'ellor wiis to 
 rrslniiii till- crcdilor from furtli* r |»rocftdingt> at luw. The 
 Court imid, " if the co^hcim arc hnhic ut law they mukt 
 reiiuiin so; hut I we no ohjfciioti to my inakin<4 an order 
 protecting the a»i>etH." And it wuh ordered, that the rre- 
 ditor who had hruught the action Hhould be n*Ntruined by 
 iiijiinctioii from takin<^ out exccutitui a^uiuMt the unst^-tA of 
 the inteHtate; the eoHtii of the a|i|)heution to Ix; paid by 
 the defenduntH, the co-heirs and adminJHtnitorH. In Kent 
 V. Pickering, the action wn« o^ainttt the executors by a 
 huiul creditor, who had recovered judirnient (accordin'^ to 
 tlic report) dc bonis trslatoris ct si uon dc jtropriis. On 
 the motion after decree for an injunction to restrain cxc- 
 ciilit>n, Terri'trt'st v. luat/ierln/, and lirouJis v. Skinner 
 were ur^cd as aiiMiorilicn that th<* injunction tihouhl n<»t 
 go ; l)iit his Honor thus laid down the rule : — " Where 
 there is a tlecrco for the achninistnition of tli' f 
 
 testiitor, llic Court will interfere, .«o far as ma \ 
 to pivc ertcct to its own decree ; but it will not interfere to 
 protect the executors fioin anv liahilitv to which thev may 
 have subjtctcd themselves j)ersonnlly. " The injunction 
 was granted to restrain the creditor from proceeding at law 
 against the assets of the testator only; and the same doc- 
 trine was stated and acted uj>on by the same learned judge 
 in a still later case(/). 
 
 In Lcc V. /'«r/[(;/i), already mentione<J, the point now under 
 discussion was much argued, but the decision was j)ut on 
 other grounds. The case was, judgment obtained bv a bt»nd 
 creditor against executors, who first pleaded non est factum, 
 and then being advised they had no defence to the action, 
 withdrew their plea, and sutlercd iudizinent to go by default. 
 Judgment was entered uj) on the Hh of August, 1835, for the 
 
 (0 nurltiy.VoppltKtU.AHx.lU. (w) 1 Keen, 714.
 
 CHAP, IV.] AT LAW AND IN OTHER COURTS. 117 
 
 debt and costs, to be levied cle bonis testatoris et si non, then 
 (le bonis propy-iis as to costs. On the 5th of December, 1 835, 
 the plaintiffs at law issued a wvit of fieri facias de bonis tes- 
 tatoris on the judgment, but the writ remained unexecuted, 
 there being no goods of the testator. In January, 1836, 
 the usual decree for an account of the testator's estate was 
 obtained in a creditor's suit instituted in 1832 ; and in De- 
 cember, ] 836, a motion was made by the executors for an 
 injunction to restrain execution upon the judgment ob- 
 tained in August, 1835. The answers gave an unsatisfactory 
 account as to the state of the assets ; tlie original answer 
 denying assets beyond such small sums as might from time 
 to time have remained in the executors' hands until the ap- 
 plication thereof, and alleging that the executors were unable 
 to set forth the amount; while the schedule to their further 
 answer showed an apparent balance of more than 900Z. 
 
 It was argued for the creditor, that the judgment was 
 gubstantially a judgment against the goods of the executor, 
 although, in point of form, satisfaction was to be first had 
 out of the goods of the testator. Lord Langdale, M. R,, 
 in giving his judgment, said, " it has been argued, that in 
 cases of this nature, the Court pays no regard to the ques- 
 tion whether the decree or judgment has priority in time, 
 but considers only the quality of the judgment; and that 
 the judgment in this case being a judgment to recover de 
 bonis testatoris, the executors are, as of course, entitled to 
 restrain the judgment creditors from issuing execution. / 
 do not accede to that argument {}i)" And after reviewing 
 the cases, his Lordship concluded his judgment thus : " in 
 the subsequent case of Clarke v. Lord Ormonde, in which 
 the point was not raised, Lord Eldon is reported to have 
 said, that even if a creditor has got a judgment before a 
 decree, though he may come in and prove as such, he must 
 aot take out execution ; and in reference to the conduct of 
 the parties, and perhaps to the nature of the claim, there 
 may be such cases; but such is not the ordinary rule, and 
 
 (»^) 1 Keen, 719.
 
 IH HTAYINO PROCBBDINOt [PAHT 1. 
 
 in thiH purticulnr caw, hmrinfj re^fti on tlio <>nc li;in«I to 
 the nutiirc of ihe wuit in t-quily, tlw; lime \»hcn the l»ill «;»s 
 rilc<l, llio •taU'incnl n« to the asAHi in the aniiwrr, tlic tnnt* 
 when the <lctrt?«» was uhtaincd, iuhI the alxirncf of an*. 
 |ihiniition of the utatr of the niset^t at thm time; ajid h.i ,^ 
 rei;nril i>u the other hand to the tune when the aelion \ra« 
 bftni(;ht ami th« jud^jment oblainwl, Ihe rinhl* nhirh the 
 bond rre<litor>« hare uhtanird of having fsatinfarlHin out o( 
 the ahMJiH of the leHlalor if the nheiilf hiidn them, or if not 
 upon Ihe nhcnir* retiim, to bring an anion, which will 
 entitle them U> HatHfiirtioii oiil of the ^(KkU of the execu- 
 tor ; c'on*id«riii^ aim* that if there bhoiild b<' a <lefu leney of 
 asaetJi, the rlainmnlrt lhere<in would, if they nuflered, sutler 
 herausr lliev uned lenx diligence than the |il:iintin')i at law, 
 hut would not sutler at all if the exeruti.r« were liel<l to 
 have a ri^ht to stand ngtiinst the w**cin only, in the situa- 
 tion in which the creditorn W(»uld have sttMnl m i 
 adminiRtratu)ii, I tiniik that thix m-fh n oughllo' I 
 with co«t« (())." 
 
 It appearn, therefore, that Ixjrd Laiiiidnle> judt,'ineiit in 
 Lre V. Park was baneil on the considerntjon that, having 
 rei^ard to nil the circumstances, he would not dinlurb the 
 cftbct of a judgment at law, prior in point of time to the 
 decree in cfjuitv. And in this view of the caw it Ijccamc 
 unnecessary to consider, and his lortlship c^ve in fact no 
 judicial opinion on the point, whether the /arm of the 
 jud'j^nent at law would affect the decisi«)n of the f'ourt. 
 
 These are all the cases of which I am aware, bearing on 
 the distinction in question. 
 
 \ 1. Mr. \N dlianis, in his learned and excellent work on 
 the Law of Executors, observes, in reference to the dis- 
 tinction taken in Jirook v. Skinnrr, and several of the 
 subsequent cases, that some of the distinctions and obser- 
 vations appear to have been made without a perfectly clear 
 apprehension of the nature and consequence of judgments 
 (,.) 1 Ke«D. 724.
 
 CHAP. TV.] AT LAW AND IN OTHER COURTS. 119 
 
 at law against executors and administrators (j^); and after 
 stating the nature and effect of the judgments entered 
 up on the different kinds of pleas pleadable by an execu- 
 tor, the learned writer concludes on that part of the sub- 
 ject thus: " Hence it should seem to follow, that if the 
 principle is, that a Court of equity will not by injunction 
 exclude creditors proceeding at law, from the benefit of that 
 due diligence by which they have established a right to 
 be satisfied, either out of the assets of the deceased, or de 
 bonis propriis of the representative, that principle would 
 apply to every case where a creditor has obtained a judg- 
 ment at law of any kind, other than a judgment of assets 
 quando acciderint (except cases such as Dyer v. Kearsley 
 and Fielden v. Fielden, where the executor has taken steps 
 merely with a view to gain time to apply to a Court of 
 equity) because by the judgment in every case the cre- 
 ditor has established a right to proceed against the goods 
 of the representative, in the event of a deficiency of the 
 goods of the deceased." With great respect for the 
 learned writer to whose observations I have referred, I 
 submit that they are not warranted by the cases in equity 
 to which they are applied, and that although in some of 
 the cases in which the distinction in question has been 
 taken, the Court appears undoubtedly to have been under 
 a misapprehension as to the form of the judgment obtained 
 or obtainable at law in the particular cases, yet the lan- 
 guage of the Court affords no proof that it was unaware of 
 the effect of the particular kind of judgment with which it 
 supposed itself to be dealing; and further, that the dis- 
 tinction taken in Brook v. Skinner and the other cases, is 
 perfectly consistent with, and may well be presumed to 
 have been taken, with reference to the difference between 
 the effect of a judgment primarily de bonis testatoris, and 
 a judgment primarily de bonis testatoris et si non de pro- 
 priis. The difference between the two kinds of judgment 
 
 (p) Will. Exor. 1366.
 
 1*20 BTAVINti rnorKEDINOK [PAllI I. 
 
 appcarii iimtiMiiil. I'nder a judgment <»f tlio first kiiul, llu' 
 crctlitor, tilthuu^ti lit> in fact ha« a rrmt-dv a<j;uint»l lUv 
 (»«khIh <»f ihf rxfcutor, lias it, Ktiirtiv hjK.*uk.ui;^, not iiiulcr 
 l\\c oriff inn! jinlifitinit, but uiidfr n dihtllKt judj^nuiit ob- 
 tuiiicd ill a hubMM|iiriit uctinii bnat'^ht |KTiu>i)ally a;;aiiiht 
 tbr cxocuttir, ami (^roiindcd dm ahHiinicd faclM, of x^bicb 
 the original judgnuMit ngainHt the goods uf the tcAlutor 
 ninl llir rrtiirn of tlir Khmd' arc rvitlrtirr(if). While \u(li 
 rcj^anl to the wcoiul kind of judijmrnl, tli«- oximmMkiii 
 n^iust the goodK of the executor would lx> foundiMJ t/i- 
 rrctltf on the orit/itial Ju(h/iiirn( a«,'ainKl hiin(r). 
 
 \t»\v with it'Hpoct t(t the two cases of Itrooh v, .S'Ai/i/irr 
 ;m(l '/'irrcwfat v. Fc<itherhy, it scemK it is true that the cir- 
 cniiistaiiccs nui?^t have been ton certain extent inaccnratelv 
 statcci to the Court; for it appears clear that at law there 
 call in no case be a judgment tie hnnis trxtatoris ct si turn 
 de propriis upon a plea of non est factum or plcn^ atlmi- 
 iiisfrtivit ; l)ut that the coui-se is in such a case that the 
 plainlifr recovers the debt and costs to be levied out of the 
 assets of the testator, \\' tjic drfendant have so much, but if 
 not, then the costs out of the tiefcudant's own <. ' ' 
 Hut it apjx>ars also perfectly clear from the report- 
 cases, that the Court thou<;ht the judgment, in respect of 
 which the application was made, was or would be iudi;- 
 niont primarily dc bonis testatoris ct si non de jirojtriis ; 
 and from the expressions used by Lord I'Udon in Ttrrcicrst 
 V. Fvathcrhij, it seems probable that his Lordship thought 
 that he could not grant the injunction without suspending 
 the right of the creditor against the goods of the executor 
 as well as against the goods of the testator. That his Lord- 
 ship refused the injunction on that ground ; and that if it 
 had occurred to him as practicable, to divide the relief in 
 till- manner subscfjucntly done by the Vice-Chanccllor, he 
 
 (7) See Williams F.xor. Tail \'. (♦) I Saund. 335, n. 10 to //.in- 
 
 ]Wk 2, Cliap. 1, and in particular cock v. I'mtrd ; and see Will. Exori. 
 
 pp. 1408 etif,]., and 14)>) «{ se.]. 136G and 1409. 
 
 (»•) Willi»ms Exor. 1367.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 121 
 
 would have done so, appears the more probable from his 
 order in Lordv. Wormleighton, whicli, while it restrained 
 execution against the assets of the testator, gave to the 
 creditor, in respect of the costs, the full benefit of his judg- 
 ment at law against the goods of the executor. The prin- 
 ciple, therefore, which, I submit, is to be collected from the 
 cases now under discussion, is not, as Mr. Williams ap- 
 pears to consider it, that the Couit will refuse to interfere 
 wherever the creditor has obtained a judgment which by 
 itself, or by its consequences, would give him at law a right 
 against the goods of the executor ; but merely that the 
 Court will refuse to relieve against the personal liability 
 of the executor; and that, therefore, if the judgment im- 
 mediately, and by its ov»n intrinsic operation, aftects both 
 the goods of the testator and the goods of the executor, 
 the Court will restrain only so far as it appears to it prac- 
 ticable to separate the liability of the testator's assets, 
 from the direct personal liability of the executor. This 
 principle, I submit, is the true result of the cases in 
 equity; and if it be so, then the consequence which Mr. 
 Williams appears to attribute to the decisions in question, 
 viz. that equity, to be consistent, ought to refuse to restrain 
 wherever the creditor has obtained a judgment of any kind, 
 other than a judgment of assets quando acciderint, does 
 not seem to follow. 
 
 VII. On the whole, the authorities seem to warrant, in 
 reference to the three points lastly considered, the following 
 propositions : 
 
 I. That when the decree in equity is prior in point of 
 time to the judgment at law, an injunction of some extent 
 will be granted. But that where the decree in equity is 
 posterior in point of time to the judgment at law, the 
 Court, although it has jurisdiction to grant an injunction, 
 will require a special state of circumstances to induce it to 
 exercise that jurisdiction. 
 
 II. That if the suit in equity is so framed, that the judg- 
 ment is for the benefit of all the creditors, the Court will
 
 ]?? -TAYma PBOCIBDIIIGS [lART I. 
 
 ip^uiii .111 iijjMin iioii after a raerc decree for an acconnt. 
 Hut that if the MUit IH iki rraliuil, ihul the liecrec* aihxlA tiic 
 iiidivultial claim of tlie |ihuiitill' only, Uutc iuuhI be aj'nml 
 (Itcrtr btTt>ru an injuiiction will be gnuileil. 
 
 And Ml. I'hai whrrc the (icfrte in e(|uity being pnor 
 in |Kjint ot* time, the judgment at law is de bonis testaturis, 
 and an to (-ohIh merely dr Imnit propriit, r<|iiitv will either 
 rextruin the pnx'etMlnigH at law entirely, |>ruvidiii(; by itii 
 uwii Older fur payment to the creditor of Uic cotLi at law ; 
 or will re»»train the prt)ceedinj;'i iipeeitifiillv a^'aiiiht the 
 iiHHetit only, leaviiij; the ereditor to obtain the co»1h under 
 hid judt^inent at law. And that if the judgment ut law if 
 dr }tonis tcsttitoris et *i non de jiTtrjtriis, the injunctKjn will 
 now be granted to restrain proceedinirs a^^ainitt the aMMeli 
 only, without |)reju(licc to such rights nt law agaiiiHt the 
 representative |>crsonally, om the creditor may have. 
 
 8. In lianh of Engltiud v. Lunn {t) Ix>rd Eldon refugc<l 
 to restrain cxectitora from bringing an action against the 
 bank for refiisintx to permit the trunhfcr of stock, specifi- 
 tally befjueathed, into the executor's name, on the ground, 
 it seems, of want of jurisdiction. For his Lordship finally 
 stated the ground of his decision thus — " If the executor 
 cannot inaintain an action at law, ti)e plaintifis do not want 
 tlic j)rotcction of this Coin t. If he can maintain an action, 
 then the true cunstructioii of tlie act (»f ])arliament Tm) au- 
 tiiorizcs, and docs not prevent that action. And if so, there 
 is no equity." 
 
 And it has since been determined that, liiout;h there Ix; 
 a specific bequest of slock, the bank has no right to refuse 
 to pemiit the executor to transfer it, unless it l>e shown that 
 he has assented to the legacy. And if it does refuse, on 
 a bill filed by the executor to compel it to jxirmit the transfer, 
 it will be decreed to do so with costs (.r). 
 
 (0 15 Vcs. 569. publUhed in 1827, it is tui«d that an 
 
 (ii) 1 Geo. 1, slat, 2, c. 19, ss. 11 .ippcal against this dcoiwun wan ihrn 
 
 nnd 12. pending. I bare found no mrnlion of 
 
 (i) Franklin v. Hank of England, the case in the I^cports of Proceeding 
 
 I Buss, 575. la a note to this report, in llic llous* of I>ords.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 123 
 
 9. It appears by a case in Vernon that before the statute 
 9 & 10 Will. 3, c. 15, where an agreement to refer matters 
 in dispute to arbitration had been made a rule of a Court 
 of law, that was not a ground of objection to the Court of 
 Chancery entertaining jurisdiction over the award to relieve 
 against it {y). And since that statute, where the agreement 
 to refer is made a rule of a Court of law in an action de- 
 pending in such Court, the Court of Chancery still enter- 
 tains jurisdiction over the award (c), because such an award 
 is not an award to which the statute applies. But where a 
 reference is made under the statute, that is, of matters out 
 of Court; and the submission has been made a rule of a 
 Court of law under the statute; equity has no jurisdiction 
 to restrain by injunction proceedings taken to enforce the 
 award in the Court of law; for the language of the statute 
 ousts the jurisdiction of every Court except the Court in 
 which the submission has been made a rule (a). It is usual 
 in the references to arbitration in use in Courts of law, to 
 include a clause that neither of the parties shall institute 
 any suit in equity against the arbitrators or against each 
 other (6). The effect of this clause on the jurisdiction of 
 equity to interfere in a reference made a rule of a Court 
 of law in a cause dependhig and therefore not under the 
 statute, seems still to be undetermined (c). However, if in 
 disobedience to the express terms of an order of reference, 
 a party file a bill in equity, a Court of law will grant an at- 
 tachment against such party and his legal advisers for a 
 contempt of Court {d). 
 
 Whether the jurisdiction of Chancery is prohibited by 
 the statute, where a bill has been filed before the submis- 
 sion is actually made a rule of a Court of law, seems to 
 have been formerly a matter of doubt. In an old case(e) 
 
 {y) Brown v. Brown, \ Vern. 157. (6) Watson on Arbitration, 318. 
 
 (2) Lord Lonsdale v. Littledale, 2 (c) 14 Ves. 268 ; 3 Myl. & K. 
 
 Ves. 451. 438. 
 
 (a) NichoUs v. Chalie, 14 Ves. (d) Watson on Arbitration, 318. 
 
 265;GwineUv. Bannister, ibid. 520; (e) Ward v. Periam, 2 Eq. Cas. 
 
 NichoUs V. Roe, 3 My. & Keen, 431. Abr. 91.
 
 124 fiTAVINti PHOfKCniNtift [PART I. 
 
 n submission liuil Ihtu uiikIc a rule ol llio Court ul King's 
 IJciuli umlcr llic stuluto, uuii at llie same time another rule 
 was obtained ("or the (h-friulant to show caui»e why an award 
 then hitrlv nuule shouUl not be net anide. At the hearini; 
 of the Hcconil rule the juii^^eii diftUj^rced an to Kctting aside 
 the u\\ard, and conseciucntly disehargetl the fonncr rule, 
 and no further rule was obtanied. On this htate of eircuni- 
 stanees, the I.oid Chanceltor exenis* d jurisdiilion by M.*t- 
 ting aside tin- award. In "^V*;// v. Andrnotif), the Vicc- 
 Chanrcllor (.l)ser\nl as i.» the jurif»diction "a Uiort! subnuR- 
 sion tu fiuthe an award a ride of Court is unnnpoitant, un- 
 less it was actually matlc u lule <il Court ; if made a rule 
 of Court, this Court cduUI not act; the juiisdiition would 
 bi- transfened to the (Jourt in which the Md>nussion was 
 made a rule ; but if the submission is not acted upon, no 
 other Court actiuiros jurisdiction." IJut in a cas<- before Sir 
 John Leach the precise pomt arose and was decided by him 
 Q<j;ainst the jurisdiction. " The sUitutc," said the learned 
 jud^'C, "limits no lime within which the party who seeks to 
 enforce llic award is to make his a|)|)lication to the Court 
 for that purpose, but the party who seeks to set aside the 
 uwanl is to make his application to the Court before the 
 last day of the next term after the award is made. The 
 Court, however, has no jurisdiction either to enforce the 
 award or to set it aside, until the submission be actually 
 made a rule of the Court. Either party may make the 
 submission a rule of the Court, and may obtain the aid of 
 tlie Court cither to enforce or avoid the awaid by taking 
 in due time that preliminary stej). The argument for the 
 plaintdV admits that, if he had taken that preliminary step 
 in due time this Court would have had no jurisdiction, liut 
 it is contended for him, that, because he failed to take that 
 step, not oidy is the jurisdiction transferred to this Court, 
 but he is relieved from all limitation as to the time within 
 which ho is to make his complaint against the award. I 
 
 (/) 2 Mad. 6.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 125 
 
 can not consider that it was the intention of the legislature 
 to leave it to a party who meant to complain of the award, 
 to escape at his pleasure from the provisions of the statute. 
 I consider it to be the duty of a party who means to com- 
 plain of the award, to make the submission a rule, so as to 
 give the proper Court jurisdiction; and that, if he fail to 
 do this in due time, be cannot, by his own default, create 
 a new jurisdiction in this Court, and defeat the limitation of 
 time fixed by the statute." 
 
 This decision was disapproved by Sir L. Shadwell, V. C, 
 who decided against it in Nicholls v. Roe{g), but his 
 Honor's decision was overruled upon appeal by Lord 
 Brougham, C. His Lordship, after mentioning the cases of 
 Nichols V. Chalie and Gwinett v. Bannister, in reference 
 to the general question of jurisdiction, said, in allusion to 
 Gwinett v. Bannister, " It was a case precisely the sair.e 
 with the present in every particular, save one, — that here 
 the bill was filed before the submission was made a rule of 
 Court, and in that case, the bill was filed after, the submis- 
 sion was made a rule of Court; but I do not think that 
 
 this makes any material difference. In v. Mills (h), a 
 
 similar distinction was taken, but Lord Eldon disposed of 
 the application on another ground, and said nothing of this. 
 But surely the mere filing of a bill cannot be held to de- 
 stroy the force of the statutory provision, more especially 
 as the party filing the bill might at any moment have ap- 
 plied to the Court of King's Bench." 
 
 "It maybe further observed, that the mere filing a bill is 
 no interposition of the Court, and cannot be struck at by 
 the prohibition of the statute. The order of the Court for 
 an injunction, or a decree setting the award aside, would be 
 within that prohibition ; and it seems difficult to understand 
 how the having done a thing not precluded by the statute, 
 before the submission is made a rule of Court, can authorize 
 the doing a thing after that step has been taken, which 
 
 (S) 5 Sim. 156. (/i) 17 Ves. 419.
 
 JJG hTAViNG rnoci:i:DiNG!5 [I'Aiti i. 
 
 tlnij'4 is directly struck at by tl»e ntatute iu the most loi lual 
 uiiil (■x|irt:».t wurdii^/i)." 
 
 It limy tlicrefore now be coiibiden-ii t>cltk'd, that wlu-ru 
 the HubiiUKMioii tither actiiully ba»> b«**'n m may l>e iiiudc a 
 rule «»r a Court of law, eijuilv lia» no juriMliclioii to re- 
 strain prooccdiiigH u|>oii the uwurd iu aoy Court in which 
 Hiich hubiniKniun in or inny under the a^rt'Ciuciit be made u 
 
 rule { i). 
 
 l(t. W lirrr H pnrtv, in consrf|Ucnce o( Ix m^ lcvie<l ujxtii 
 by llu! crown as hunty for aiuulur, ban a legal rigiit under 
 the provihionsof an act of ]>arlianu-nt to )>rocced egaiiiKt 
 that oilier pailv by extent to recover what he has j)aid, 
 but e(juitable circutnstancrs make it qucstioimble whether 
 the surety is in e(jiiity cnlilled to l>e ho repaid, it w-eiiiH 
 iloublful wlietluT an injunction ought to be granted to 
 ivstrain him from so proceeding by extent, liut at ajiy 
 nitc, it should only be on immediate payment of tin- money ^ 
 inti» ('oiirt. Aiiil wliere such an injunctijm had been 
 granted, with a month's time to jjav the money into a 
 banking lu)use in the names of the ])lainlitf and defendant, 
 Lord Chancellor, on ;in alliduvit o( the defendant's l>elicf 
 that tin- |)laintill' in that month would go abroad with the 
 nioncv, ordered the injunction to be dismissed, unless the 
 money was paid in to the banking house within three days 
 from the date of the ordcr(/). 
 
 Equity has no jurisdiction to restrain an action on a 
 bond given by the father of an apprentice to his master, on 
 the ground of misuser of the apprentice, because it is a 
 matter which by the statute of 5 Eliz. c.4, s.35, belongs to 
 the justices of the peace, and the only question is whether 
 the misuser is a discharge of the apprentice, and that is a 
 mere matter of law(/r). 
 
 (/i) 3 Myl. 6l K.441, 142. 0) ii'hitehouu v. Partridge, Z 
 
 (i) Sec also on this Watson on Swaos. 365. 
 ArbiliatioD, c. 13, s. '2. (A,) ArgUi v.i/«J0ruin,l Atk.518.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 127 
 
 11. Under this division of the subject fall to be consi- 
 dered the cases in which the Court will restrain proceed- 
 ings in a Court of law against the acts of its officers. 
 
 That a power should be vested in any Court to prevent 
 an inquiry by any tribunal except itself, into a wrong com- 
 mitted under its orders, or by its officers, may appear to 
 many an anomaly in the organization of justice in a free 
 state. But however this may be, it is well settled upon 
 authority, that where the process of the Court of Chancery 
 has been either issued irregularly, or, being regularly 
 issued, has been irregularly executed, the Court has juris- 
 diction to restrain the party, who has been taken under 
 such process, from bringing an action at law against the 
 person executing it, and to draw to itself the consideration 
 of the case; and will refer it to the Master to consider 
 what will be a reasonable satisfaction to the party suffer- 
 ing (Z). In Aston v. Heron, the principle on which the 
 Court of Chancery proceeds in respect of this branch of 
 its jurisdiction was elaborately discussed by Lord Chan- 
 cellor Brougham. His Lordship admitted, on the authority 
 of Baily v. Uevereux, Frowd v. Lawrence and May v. 
 Hook, that the Court has undoubted jurisdiction to ex- 
 clude all other jurisdiction in every thing relating to its 
 process; not only preventing any Court from judging 
 whether or not its orders are regular, but from examining 
 into the regularity of their execution ; and not only pre- 
 venting such examination, but shutting out redress at any 
 hands but its own, where a wrongful act is admitted to 
 
 (/) Frowd V. Lawrence, 1 Jac. & the plaintiff and the sheriff for false 
 
 W. 655 ; Bailey v. Devereux, 1 Vern. imprisonment, and another against the 
 
 269, and 1 Jac. & W. 660 ; May v. plaintiff for maliciously suing out the 
 
 Hook, referred to in Die. 619; and attachment; Lord Eldon, on the au- 
 
 see 1 Jac. & W. 663 ; Batchelor v. thority of the two preceding cases, 
 
 Blake, I Hog. 98. Frowd v. Law- granted an injunction restraining the 
 
 re7ice was a case of an attachment proceedings at law, and observed that 
 
 irregularly issued, which had been set though thejurisdiction was very strong, 
 
 aside with costs, and afterwards the he was not at liberty to give it up. 
 defendant commenced an action against
 
 128 STAYING I'KOCKKDISGS [I'AIJT J. 
 
 have been tUiue uiulcr coUmi uf oboviiif; its coiiuuuuIm. 
 Jiiit his l.oiilshi|) hiul (iuwn the foMowing dihtinctiiMi : that 
 whin- the title of the ojficer of the Court is (|ue.stiuned, 
 the C'uiiit has no choice, and cannot «;ive x\y the jurisdic- 
 tion ; hill \Nhere the jjiucess has hecn irret/tilarlt/ used, 
 there it is ii matter of discredon with the (Jourt whether 
 it will ilniw to iihcir the rxaniination of th<- matter, «<r 
 leave it to other tiihunals, and it is not bound tu exclude 
 concurn lit jurisdiction. And he said the Court would re- 
 (juiie a case to he math; aj^ainst the ollicer of the Court, 
 to induce it to leave the matter to be examined elsewhere. 
 On these principles the order in Aston v. JIrron(in) was 
 l^roiinded. The case was, a receiver had been aj)pointed 
 by the order of the (Jourt, and levied a distress u|)on u 
 tenant of the estate of which he was a receiver. The 
 tenant brou<;ht an action of trespass against the receiver 
 and bailitl"; and on a bill ti> restniin these proceedings, 
 Sir L. Shadwcll, \ . ( "., '^ranted an injunction, and after- 
 wards refused to dissolve it. .A motion was then mad«! 
 before Lord Brou'^ham to discharge the order of the \ ice- 
 Cliancellor, refusing to dissolve; the injunction. It did 
 not a|)j)ear by the allidavits what acts o( the receiver were 
 irreiiuhir, but thev consisted merelv of a va<4ue and general 
 declaration that he had put in the distress irregularly. On 
 this state of circumstances Lord Hrougliam held that the 
 Court slioulil exercise its Jurisdietioii, and he accordingly 
 refused the motion to dissolve the injunction with costs. 
 
 Again, in a case (/i) where certain persons acting under 
 a commission of rebellion regularly issued out of Chancery 
 against A., entered the house of B., A.'s brother, who was not 
 a ])arly to the suit, and searched the house; ujjon which 
 B. gave them in charge to the watch, and had them con- 
 veyed to the watchouse, and there confined ; it was held 
 that this was a clear contempt, and that an order for coni- 
 mittal iiuule un an expartc application was perfectly regidar, 
 
 (rn) 2 .My. Cv Ke. 390. (^-i) £i ^irie Clarkt, 1 Ru&s. & My. 063.
 
 CHAP. IV.] AT LAW AND Ix\ OTHER COURTS. 129 
 
 and that the party being no party to the suit made no 
 difference. And in the same case Brougham, L. C, sus- 
 tained an injunction to restrain B. from prosecuting an 
 action against one of the commissioners for forcibly enter- 
 ing his house. Upon the affidavits it did not appear that 
 there had been violence ; nothing but a mere entry ; and 
 his Lordship held there was nothing in the case to induce 
 him to depart from the principle decided by May v. Hook 
 and Frowd v. Lawrence, that the Court has jurisdiction to 
 draw to itself the consideration of whether or no a party 
 has a just cause of complaint against its officers acting in 
 the execution of their office. In Philips v. Worth (o), the 
 defendants, who had been imprisoned under an attachment, 
 which was afterwards set aside by the Court for irregu- 
 larity, were restrained from prosecuting actions at law. 
 But the plaintiff in equity was ordered to pay the costs at 
 law and of the application for an injunction, and it was 
 referred to the Master to inquire and state what compen- 
 sation the defendants were entitled to. 
 
 In a late case, however, where a party to a suit had been 
 imprisoned under an attachment, which afterwards turned 
 out to have been irregularly issued, the defendant, having 
 brought an action without the leave of the Court, was 
 ordered to pay the costs at law {p). 
 
 Lastly, in a very late case before Lord Langdale, M. R., 
 the messenger of the Court had retained the custody of a 
 defendant, who was in contempt, by remaining in his 
 house beyond the period when in strictness he ought 
 (under the l Will. 1, c. 36, rule 5,) to have brought him 
 to the bar of the Court, or to have discharged him ; the 
 reason of his having thus acted irregularly was, that the 
 defendant was very old and in bad health ; and the offi- 
 cer refrained from removing him out of tenderness and 
 consideration. Under these circumstances an injunction 
 to restrain proceedings was granted with costs {q). 
 
 (o) 2 Russ. & My. 638. (q) Chalie v. Pickeriun, 1 Keen, 
 
 (p) Bricknell v. Rumford, 1 Beav. 749. 
 
 368. 
 
 K
 
 IHO t.TAYIN»; PHO<EEl>I?<«:t. [|»AHT I. 
 
 12. Tlusc* ure, 1 btliL-ve, ull llie cu>»cH on thit> subject, 
 aiul tlu' ItiiMii-il rradrr \si\\ |H-rC(-ivc that tlu-v i-stablihit, by 
 ait uiibruki-it cliuii) u( deciKiuii, the diiclniie, tlmt where a 
 uioiii^ iM done bv uii olheer uf the (.'uurt uetiif^ iu the 
 ixt't utiui) of itH order, whether the wroii^ pna-eed from an 
 irreguhirity in the order itjielf, or from irrfgulurily in tlu- 
 ino«h' of executint^ it by tl i. the ( '■ 
 
 jiiriMhrtioii to reiitruin th** i 'in pro*- ,y 
 
 other Court to iiK|iiiru nito and remedy Huch wrong. 
 
 It huH ul^o U-cn (h-(erii)iiied that an action ut^'aiiiHt a 
 secjiiehlnitor in |)OM»ef^i>ion will Ik; restrained, ah the t.'ourt 
 will not allow it8 oHicer to be drawn into n htigutiou which 
 il cannot control (r). 
 
 1;J. The Court also nssumcH jurisdiction in many • 
 over its own olliccrs, Jis such, to restrain them from seeking 
 redress in any other Court. Thus, if a solicitor, whose bill 
 of costs has been taxed, and more than one-sixth taken oiY, 
 brings an action against his client, licforc the cost* of tax- 
 ation arc ascertained, for the amount of the bill taxt-il, the 
 Court will restrain him from all further proceed inif'^ in the 
 action until further order («). 
 
 So if a person is cmplovcd as auctioneer m oimiwi'-e, 
 in a sale directed by the Court, by the committees of a 
 lunatic's estate, under the sanction of the Master, and has 
 carried in his claim for his bill before the Master, he will 
 not be allowed afterwards to proceed at law against the 
 solicitor of the committees. For a claim arising in the 
 course of an employment under a lunacy, and for the pur- 
 j)Ose of carrying into etlect the decision of the (Jourt in 
 that Innacv, unless there is some special agreeraeut to the 
 contrary, is properly the subject of an inquiry* before the 
 
 Master (0. 
 
 And where commissioners for the examination of wit- 
 nesses brought actions against the solicitor, for fees claimed 
 
 (r) Katie V. Cuntingbam, 5 Mad. (»") Bnrrv. H'i/j^inj, 4 Sim. 125. 
 
 406. (f) lU MV<ir*r. 2 My. \ Cr. 441.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 131 
 
 by them in respect of their business as commissioners, the 
 Court said, the case was not distinguishable in principle 
 from Re Weaver, and enjoined them, referring it to the 
 Master to inquire, and state what was due to the commis- 
 sioners for their fees {u). 
 
 When it is said that the Court has jurisdiction to re- 
 strain the person, if such person be within its jurisdic- 
 tion (x), the rule must be understood to mean, not merely 
 that the person shall be within the jurisdiction as to loca- 
 lity, but that he shall bear such a character as renders him 
 personally amenable to the jurisdiction ; therefore, where 
 the person is not clothed with such a character that the 
 Court has jurisdiction over that particular person in re- 
 spect of his acts, and the act sought to be restrained can 
 only be restrained by acting on the officers of another 
 Court in derogation of the jurisdiction of that Court, equity 
 will not interfere. This appears by the case of Nicol v. 
 Goodall{y). In that case a suit had been instituted in the 
 Court of Admiralty respecting the rights of certain owners 
 of a privateer to a prize taken by such privateer • the Court 
 decided that the captured vessel was not the property of the 
 captain, but of the crown. The crown thereupon issued a 
 warrant directing the registrar of the Court of Admiralty to 
 pay part of the proceeds of the sale of the captured vessel to 
 the agent of the privateer and to the captain, both of whom 
 were part owners. Nothing, however, was paid under this 
 warrant, owing to differences between the claimants, and 
 to the bankruptcy of the agent ; whereupon a second war- 
 rant was issued by the crown, to pay the money to the 
 captain and another part owner. The assignees of the 
 bankrupt then filed their bill, and moved for an injunction, 
 among other things, to restrain the defendants, who filled 
 the office of registrar of the Court of Admiralty, from paying 
 the money. The Court held that the property was in the 
 
 («) Blundell v. Gladstone, 9 Sim. (x) Ante, 96 and 101. 
 
 455. (y) 10 Ves. 155. 
 
 k2
 
 l;jj STAVINO PRUCEBDINGS [PAHT I. 
 
 trowa until the money \va» uctuiilly puiil umlrr the war- 
 runt, und Kuul, " Tliu t'ltht ({Ui-ifliun in, ni wlmt htu'^c is 
 this Court upon tin* heuil of trunt to inlcrfcre ? 1h the 
 Court to ititrrfrrc by reHtrunnnj; thf re^iHtnir from obfyinj^ 
 thf warnint, thr kini; havnl^ thf |)ro|K*rty '. In thr (x>urt 
 to intrrfcre i/i the Cuurt of Admirtdty, and to lot-k up the 
 fund, or r(M|uir(.' it to be |uiid uito thiH Ctiurt f They are 
 not truHtet-H untd thoy have received it acconliny; to the 
 kin|:;'>4 order." The motion wuh refuHed with coitUi. 
 
 And it iit alno neccMHury that the parties making; the ap- 
 phi-iition should have a Kuflicient interest. Thus, altliou^h 
 an injunction uouKi, it seems, be grunted to reKtrum a re- 
 ceiver from mining rentH, and from ejectinj; tenants, without 
 apphculi(»n to the Masti-r, if the apphcation wen- made by 
 a j)erst)n havin«^ a sullii'ient interest ; yet where thi-re wtiB 
 a tenant tor life subject to a trust term, remainder to the 
 lir^t and other sons of tenant for life in tail,- with remaintler 
 for life, and remainders over in tail; a motion by the tenant 
 for life in remainder and the tenants, to restrain the receiver 
 from ejecting them, was refused with costs. The (,'ourt said, 
 " Nobody interested in the estate has made any coniplaint; 
 neither the tenant, n«jr tlie tenant for hfe have any thing 
 to say to it. Upon what ground of interest of their's would 
 they apply (z)?" 
 
 14. It seems very questionable whether the Court has 
 junsdiction to intrrfcre without reference to pro|)erty, to re- 
 strain persons from pctitiouiiuj the legislature («). But it 
 is clear that it has no power to interfere, where the pro- 
 ceedings in parliament have gone so far as the reception 
 of a bill bv either House; for then the matter l>ecomes the 
 act of the House, not of the party ; and the Court cannot 
 then interfere, even though the bill should have been 
 brought in in fraud of an undertaking given by the pro- 
 moters of it to the Court. This was deteniiined in the 
 
 (i) Wynne v. Lord Nevborough, 1 (a) 1 Rail. Cai. 458. 
 
 VcJ. 164.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 133 
 
 case o{ Attorney- General v. Manchester and Leeds Rail- 
 way Company {b). In that case the Court withheld an in- 
 junction to restrain the company from proceeding with 
 certain works, pending the trial of the legal right, solely 
 on the ground of their undertaking that the Court should, 
 after the trial, have the same control over the works that 
 it then had. Before the right was tried at law, the com- 
 pany, without notice to their opponents, petitioned for 
 and obtained leave to bring in a bill, and a bill was 
 brought into the House of Commons, containing a clause 
 to prevent any Court of law or equity from compelling the 
 company to take down or alter any of the works in ques- 
 tion ; and Lord Cottenham held that although this was a 
 clear breach of the undertaking given to the Court, he 
 could not in any manner interfere. 
 
 (6) 1 Rail. Cas. 436.
 
 i;m 
 
 .STAYIN<; wnONGFUL ACT* 
 
 [part n. 
 
 I'AUl 11, 
 
 oi ISM M rioNM TO STAY witoNr.rui. AfTH or A KPi:«l^l 
 
 NAM Hi:. 
 
 CliAI'TKK I. 
 
 Tvjunrtinns ar/aiust Wustc 
 
 1. Watle by Tenant for Lif$ gfnt^ 
 rait II. 
 
 2. At uhtneSuit an InJunclionagainBl 
 
 Watit may h* ohtaintd. 16. 
 
 3. What Actt Tenant for Life not mm- 
 
 imfitachabl* may do, 
 
 4. M<»rr concertiiiig the Partie$ who , 
 may obtain Injiinetion$. ^ 17. 
 
 5. Where it is uncertain tillDtatho/ ' 
 Tenant in Pourttion vhether A« ' 18. 
 hat Title to the Timber. 
 
 6. Of the relative Highlt of Tenant | 
 Jor Life and Remainder-man. 19, 
 
 7. InjuuctionsagainsI eijuittible Watte 20. 
 
 by Tenant without Impeachment. ' 
 
 8. Destruction trill be -eslrained. 
 
 9. But not trifling Acts of Waste. 21 
 
 10. Doctrine as to restraining the cut- 22. 
 ting down of ornamental Timber. 23, 
 
 11. Old Rule to stay cutting Timber 
 
 actually ornamental. 
 
 12. Motlrm Rule that it must be 24. 
 planted or Groutng Jor Orna- 
 ment. 
 
 13. Principle which gottrns the Court 
 
 on this Point. 25. 
 
 14. Doubtful whether an Injunction 
 can he granted against Waste ge- | 
 nerally, on Proof of par(tcu/ar | 26. 
 Acts of Waste. ' 
 
 liljunetion neter 
 ground of its doing 
 Defendant. 
 
 DittineliOH helie**n Tenai,: 
 Life and Tenant in Fee, a« to 
 eultirating in " ' -vd-liki 
 
 Manner. 
 
 What sufficient li^ lupj.art an In- 
 junction. 
 
 Tenant for Life, triihoui Impeach- 
 ment, not to Ite rntrained, unless 
 Trees are nnjit to h* ntl as Timbtr. 
 Waste by Jointttss. 
 Waste by Tenant in Tail, under 
 Act of Parliament, deprittd of 
 Power of Alienation. 
 Burge V. Lamb. 
 Waste by Tenant for Years. 
 Tenant for Years, vilh Power to 
 commit Waste, restrainable as 
 against prior Incumbrancer. 
 Injunctions against breach of Co- 
 tenant when secured by Penally; 
 not where it is a Contract for 
 Compensation. 
 
 Of Injunctions in the Sature of 
 Restraining Breach of Covenant, 
 rather than against Waste. 
 Conversion of Pasture into Plough 
 Land restrained S^c.
 
 CHAP. I.] 
 
 OF A SPECIAL NATURE. 
 
 135 
 
 27. Lathropp v. Marsh and Johnson 
 V. Goldswaine, with Observations. 
 
 28. What constitutes ancient Pasture. 
 
 29. Attorney- General v. Foundling 
 Hospital considered. 
 
 30. Leases for Lives, with Covenants 
 for perpetual Renewal. 
 
 31. Observations on De Salis v. Cros- 
 san. 
 
 32. Waste in Houses. 
 
 33. Distinction between Things fixed 
 and not fixed to the Freehold; 
 and of Waste by Tenant holding 
 over. 
 
 34. Waste by Tenant in Tail after 
 Possibility. 
 
 35. Distinction where such Tenant has 
 
 never been Tenant in Tail in Pos- 
 session, 
 
 36. Will be restrained from commit- 
 ting malicious or destructive 
 Waste. 
 
 37. Waste by Tenant in Dower and 
 by the Curtesy. 
 
 38. Waste by Tenant in Common. 
 
 39. Waste by Mortgagor. 
 
 40. Constructive Trustee restrained 
 from committing Waste. 
 
 41. Where Account will be granted 
 without Injunction, and where 
 not. 
 
 42. Injunctions at Suit of Copyholders 
 
 and of Lords of Manors. 
 
 43. Injunctions against Ecclesiastical 
 
 Corjjorations — What Waste a 
 Parson may commit, and what 
 not. 
 
 44. Ecclesiastical Corporations may 
 
 not cut Timber, except for Re- 
 pairs. 
 
 45. Discussion of the Questioii, whe- 
 ther an Injunction will be granted 
 against permissive Waste. 
 
 46. General Result of the Cases at Law 
 
 on permissive Waste. 
 
 47. Injunctions to restrain Acts de- 
 structive of Property, analogous 
 to Waste. 
 
 48. Of Restraining Interference rvith 
 Assets of Testator or Intestate, 
 pending Litigation in Ecclesias- 
 tical Court, 
 
 49. Other Cases of restraining Exe- 
 cutors. 
 
 50. Injunctions to protect Receivers, 
 
 51. Iijunctions between Partners, 
 
 52. Other Cases of Waste, or Acts in 
 
 the Nature of Waste. 
 
 53. Injunctions to restrain Alienation 
 
 of specific Chattel, 
 
 54. Injunctions to restrain Trespass ; 
 old Doctrine. 
 
 55. Early Distinction in Case of Mines. 
 
 56. Commencement of the modern 
 Doctrine. Flamang's case. 
 
 57. Where I/junction granted to re- 
 strain Trespass, Plaintiff must 
 not delay trying Right. 
 
 58. Not granted where no Destruction. 
 
 59. Old Rule remains as to mere Tres- 
 pass. 
 
 60. Injunction not granted at suit of 
 
 devisee against Heir, disputing 
 Will. 
 
 61. Effect of standing by on Right to 
 
 Injunction to stay Waste. 
 
 Generally all persons whose estates are less than 
 estates of inheritance are impeachable of waste, unless 
 they are made expressly unimpeachable, except in certain
 
 13G 8TAVISG WRONGPl'L ACTS [PART 11. 
 
 excepted cu.s<?«; as for iiifttaiice, that of tenant in tail afler 
 possibility (»f i«*Buc extinct; and in Inlaml, teniint for years 
 under a U-ahe renewuMe for ever. 
 
 I. A tinant for life, unleKM he take exprcBsly >miIi>>iii 
 inipeuchineiit of wante, may not commit \vat»te; ax for in- 
 btance, he may not rut iimltcr ur <»|Mn m-w mineh(fi). 
 
 a. .\\u\ aUli<'n"4h uIhti- tlun- arc two successive life 
 estates with remainder iir revirsinn in li-e, an action of 
 waste by the remainder man or revei-hioner d<»eK not lie at 
 common law , because of the intermediate life estate, it ap- 
 j)oars that at a very early period crpnty would interfere by 
 iji junction at the suit of the remainder-man f A), or rever- 
 sioner(c), or even at the suit of the second tenant for life ; 
 because, althoui;h he has no right to the timlx-r, yet if the 
 first tenant for life die, he has an interest in the ma.sl and 
 shade(r/). And an injunction will l>c granteil at the suit 
 of a second tenant for life, even if there Ijc no first tenant 
 for life in esse, particularly as to ornamental tinilwr, be- 
 cause it is jjranted, not so much in resjK'ct of Iiis interest 
 as of his cnjovment (r). 
 
 3. Rut although a tenant for life, not \vni)>iiii iin|»(;i(Ii- 
 mcnt, may not open new mines, he may continue work- 
 \u)X mines lawfully oj)encd by the preceding tenant for 
 life, and will not be restrained from opening new shafts 
 
 (a) Cole V. Peyton, 1 Rep. in Cli. (d) Verrot v. Prrrol, 3 Alk. 9A. 
 57; Wh'utieli v. lieuitt, 2 V. Will. The jurixliclion of eijuity to grant id- 
 240. junciioDs against wmst« U uid lo 
 
 (b) Sec Moor, 564, \u. 74'2, /?<u- have lakco its origin from i be writ of 
 u'cl/'s case, 1 Uolle'sAbrid. 377, plac. prohibition of waste ; ptr Lord 
 13; and see per Lord llardwicke in Hathurst, C. in Goodeton v. Gallatin, 
 Farrant v. Lovell, 3 Atk. 723 ; Robin- Dick. 455. 
 
 ton V. Utton, 3 Alk. 210. («) Rtydgtt ». Slephem, 6 .Mad. 
 
 (c) Whitfield V. Beicitt, 2 \\ Will. 279. 
 240.
 
 CHAP. I.] OF A SPECIAL NATURE. 137 
 
 or pits to follow the same vein, and to admit air to the 
 mine (/). 
 
 In a very late case {g), where there was devisee equit- 
 able tenant for life impeachable of waste, the inheritance 
 consisted principally of old clay pits, which had been 
 worked by a former proprietor ; the devisor had never ac- 
 tually worked them, but was preparing at the date of his 
 death to commence working ; and the question was whe- 
 ther the tenant for life might work such pits ; whether, in 
 fac.t, she was taking the substance of the land, which it 
 was admitted she might not do, or whether the devisor 
 had by his act treated them as profits of the land. The 
 case stood over, and an injunction, it is said, was ulti- 
 mately granted. 
 
 4. An injunction has been also granted at the suit of 
 the assignee of a lease, granted by one to whom the 
 ground rent had been always paid, to stay waste in an 
 under-lessee (A). In Robinson v. Litton (i), the devise was 
 in effect to the devisor's son and his heirs until twenty- 
 one, and after that to be sold, and the produce applied 
 in augmentation of the fortunes of daughters of the de- 
 visor ; and if the son should not reach twenty-one and 
 should die without issue, then to the daughters. Lord 
 Hardwicke granted an injunction at the suit of the daugh- 
 ters to restrain the son, being under twenty- one, from 
 cutting timber. From the language of Lord Hardwicke 
 it is to be collected, that he considered the estate as a 
 legal fee in the son, in trust to receive the rents and profits 
 himself till twenty-one, and thereafter in trust to be sold 
 for the daughters. He says, " suppose the last clause had 
 been the first, the defendant would have been clearly con- 
 sidered a trustee of the inheritance for the benefit of the 
 
 (/) Clavering v. Claveriitg, 2 332 and 362. 
 P. Wms. 389. CO Furrant v. Lovel, 3 Atk. 723, 
 
 (g) Viner t. Vatighan, 4 Jurist, (i) 3 Atk. 209.
 
 138 BTAYIJtO WROXGPUL ACT.-' [I'AHT 11. 
 
 tluu'^hU'ru ; niul thut im the point 1 nhull ground the in- 
 junction u|Mjn to Htuy wtu»U;(A;." The cui»c it» clearly tiis- 
 tiny;uishublc from that of a Icnuncy in fee, huhject to be 
 ilefratitl on a contingency. 
 
 \N lirri! there m un cttate for a tenn of yrarn without im- 
 |>cachnit>nt of wantc, rxcfpt vohintary wante, ninaiiuier to 
 truMtcvH to prcMTVc continj;«M»t rrnmin<l<«rH. rr-nianuler to 
 tho first and other bouh in lad, r<Muaind«r ovrr in frf, the 
 trustK's U> prrHtTVf may n-Htniin the tenant for yearn hy in- 
 junction from committin^j waste (/); and it HceniH not only 
 that they nuiv, hut that it is their duty(m). 
 
 Ill Stdiisflt Id V. J/ahrry/iaiii, the |>oiiit arose whether an 
 h( ir at law, takiii'^' ii resulting truHt cBtiite until the hap- 
 pcnmi; ot an event on which contiii'^n* ' ' '' 
 
 was entitled to cut tiniher. I^jnl I 
 
 thought thai ho was not : his Lordship obftorvcd, that the 
 doctrine of the Court was, that where there is an executory 
 devise over oven of a /«'//«/ estate, e<jnily will not permit the 
 timber to be cut down ; more especially not, if there i« an 
 executory devipc of a trust estate. The jwint, liowever, did 
 not call for express decision in that case, as the lnir at 
 law did not, in the view of the Court, lake either at law 
 or in e(juitv an immediate estate of inheritance, in a senRC 
 that w ould entitle him to cut timl>er. For the legal freehold 
 was in a trustee, with a direction to convey, after the failure 
 of issue of a certain person who was then dead without 
 issue inheritable, to the right heirs of the surviving trustee; 
 and the Court said that it would have been a breach of 
 trust in such trustee, not to have intei'posed an estate in 
 some person to prcscr>e the contingent remainders ; and 
 
 (k) In ihc Icxl of AikjD, the last the wonU uicd by the l^rd Chaocel- 
 
 clause of the will is stated thus : " in lor, that the Utter must hare been tbe 
 
 case my son shall not attain twenty- actual limitation in the will, 
 
 one." In the editor's note it is slated (/) (iarth r. Cotton, Dick. 183. 
 
 from Reg. Lib. D. 1743. fol. 475, (m) Prr Lord KIdon in Stantfi€ld 
 
 that the clause was " if the son should v. Habergham, 10 Ve». 282. 
 attain twcnly-onc." It is clear from
 
 CHAP. I.] OF A SPECIAL NATURE. 139 
 
 then, as in Garth v. Cotton, the person in whom that 
 estate was vested might, and it would be his duty to interfere 
 to prevent waste. It appeared that no conveyance had been 
 made; on which the Lord Chancellor said, the surviving 
 trustee had the legal estate in him, and was better entitled 
 to preserve the timber than trustees to preserve contingent 
 remainders; and sustained the injunction (n). 
 
 But although it is the right and duty of trustees to pre- 
 serve contingent remainders, to protect the interests of the 
 parties entitled in remainder against acts of waste by the 
 tenant in possession, that does not take away the right of the 
 parties entitled to vested estates or interests in remainder 
 to apply to the Court. In a very late case, already cited on 
 another point (o), it was contended, that where there is a 
 devise to trustees on trust for one for life, and after the 
 death of tenant for hfe, on trust to sell and divide the pro- 
 duce between several; that one of the parties entitled to an 
 undivided reversionary share of the produce of the land, 
 cannot file a bill to restrain the tenant for life from com- 
 mitting waste, and that the bill ought to be filed by the 
 trustees. But the Court said there was no doubt that the 
 party so entitled, had a right to come into equity for protec- 
 tion, and was not bound to look to the trustee to make an 
 application. 
 
 5. Where the tenant in possession holds under a title of 
 that ambiguous character, that the Court cannot determine 
 until his death whether his estate was such as to have en- 
 titled him to commit waste or not, the Court will not, pro- 
 perly speaking, either restrain or permit waste, but will 
 make such an order as shall permit timber to be cut, keep- 
 ing the absolute beneficial enjoyment of it suspended till 
 the nature of the estate can be determined {p). The case 
 
 (n) Stamfield v. Hahergham, 10 332. 
 Ves. 273. (/)) Wright v, Athym, 1 Turner & 
 
 (o) Viner v. Vaughan, 4 Jurist, Russ. 143.
 
 140 UTAYIMO WBOXOrUL ACTS [PART II 
 
 of MVi^A/ V. AtkyHM wn» lh»» : — the tnitator dcviwtl ull 
 hi- ) , 4c. oiul ull othir liu rra' • •••■ to riiurloUc 
 
 AiK. i licr hiir», III ilir fullcul - l*>"l ttfl*"*" 
 
 her dcccBM- the wuuUl clc*i»r ihc i»amc lo fuinily; 
 
 umi chaP^iHl ll. ... ...1 „( hi« 
 
 lUhtii. The «|.. Alkyw 
 
 took III iho real Mtolr. It wut tichl ihot »hc look iii fp«*, 
 hilt ' ' 'I Willi « triiHi lo ilcviiM- to a parliculur 
 
 cl.i i< »• u|>oii riiiiihlioii lo (li'tiNc, the Court 
 
 did iiol dtcHic ; the inchnatioit of lx.nl ICIdon'i nniid »!>- 
 jM'ur^ howivi r t«» htivr Urn, ihul th«- culalc of ('hurlolto 
 Alkyusi was 11 he I li.ihed wilh u iru.»l (7). I'ndcr tlicnc 
 circumHlanccu il wuh hchi, that it could not Ijc decided till 
 Mrs. Atkyiis' deuth, whither hhe \\a» eiililh-<l to the tim- 
 ber h.r her own IxMiefil, or whether it would Uloni; to 
 ulher parties. Hy nMitraininp her from cutting timber, the 
 Court w.nihlbe, in erticl, d. ' ht; while 
 
 by not intcrferin<; al all, il ^^ """l ll"« 
 
 right, if any, of other partien. IajhI KIdon thouKhl, tlierc- 
 fore, thai he oui;hl lo interfere lo th' - n- 
 
 quibito lo proscr\c the property for v- , ]>tar 
 
 to be entitled to il. 'Flic order ultimately made wan, that 
 the dcfciulants (Mrs. Atkyiis and two other pcrson», to 
 whom she had conveyed her estate on certain tru»t»,) 
 should be at liberty lo cut timlxir in a husband-like man- 
 ner, as tenants in fee, giving the plaintiff an arcounl of 
 what was felled ; and that the money to ansc by the hale 
 of the timl>cr cut should be placed to U)e credit of the 
 cause, with liberty to the defendants to apply for more 
 enlarged powers of cutting timber ; and to apply to have 
 the money paid out to them on giving uccunty ; and the 
 plaintifl'to have liberty to alien J and see that the timber 
 wasi cut in conforinitv with the order. 
 
 C. \N ilh res|)cct to ihe cpieslion, what arc the res|>cctivc
 
 CHAP. ].] OF A SPECIAL NATURE. 141 
 
 rights of tenant for life and remainder-man to the timber, 
 where the tenant for life is not expressly dispunishable for 
 waste, Lord Chancellor Talbot has stated the general doc- 
 trine in a case of Bewick v. Whitfield K^r) ; in that case A. 
 was tenant for life, remainder to B. in tail as to one moiety, 
 remainder as to the other moiety to C. in tail, remainder 
 over. There was timber on the estate greatly decaying, 
 and B. filed a bill to have the decaying timber cut down, 
 and the proceeds divided between himself and C. Lord 
 Chancellor said, " The timber while standing is part of the 
 inheritance, but whenever it is severed, either by the act of 
 God, as by tempest, or by a trespasser and by wrong, it 
 belongs to him who has the first estate of inheritance, whe- 
 ther in fee or in tail, who may bring trover for it; and this 
 was so decreed upon occasion of the great windfall on the 
 Cavendish estate. 
 
 " 2dly. As to the tenant for life, he ought not to have 
 any share of the money arising by the sale of this timber; 
 but since he has a right to what may be sufficient for re- 
 pairs and botes, care must be taken to leave enough upon 
 the estate for that pm-pose, and whatever damage is done 
 to the tenant for life on the premises held by him for life, 
 the same ought to be made good to him. 
 
 "3dly. With regard to the timber plainly decaying, it 
 is for the benefit of the persons entitled to the inheritance 
 that it should be cut down, otherwise it would become of 
 no value ; but this shall be done with the approbation of 
 the Master ; and trees, though decaying, if for the defence 
 and shelter of the house or for ornament, shall not be cut 
 down. B. tljat is tenant in tail (and of age) of one moiety 
 is to have a moiety of the clear money, subject to such 
 deductions as aforesaid, the other moiety belonging to the 
 infant must be put out for the benefit of the infant on 
 government or real securities, to be approved of by the 
 Master." But in a late case where there were first, second, 
 
 (r) 3 P. Will. 267.
 
 142 M A^ [fart n 
 
 mill llii ■ ilk, aiiJ 1. 1.41.1 m laii III reinuimlcr 
 
 III r\i»t triianl Un lilr. l>ciiig lii jh>»m-i»»ioh, 
 
 cut doMt) tiinbrr. l'|*u«i m lull beiug fUed by tlie third 
 Irimiil for lifr, uimI tin- • ' 
 
 rcfeftrd lo I lie Ma»lrr I 
 
 cut, mm) u|m>ii llir MttiOrr liudiiH; iltat crrlain linibor was 
 rul tluHii. bill lliut |mr( <•( it lin' 
 Olid ihmi Bii otfidu^il tiu<i iM-«ii iii.> 
 
 the rvccptKMi of five umk Uwm appitod iii rr|Niiri, tuch 
 tiniticr only Imd bc«-ii cut di»t»ii iu» v-. • ihc 
 
 li^Tuwtli uiul iiiipruvcmeiit of the rrii or- 
 
 drrrtl Uml the produce of thol |«irt of the UmJicr nhich 
 Imd not iMfii u|>|»lu*<l iii r(r|niirH, ufi- 
 IMriiM'H of culling it down, hIiouUI l»c | ' 
 
 (he int4TV«t of Huch protiucc |>aid to the first teiiuiit Ujt 
 lift- duniiu liH life, and uftt-r In- 
 to bo nl IiIx-tIv to apply. The I 
 
 dcretl to be pnnl by the t'unt tenant for life in the fullowring 
 way; tin- plainlifls wt.re to |»ay the defrndant, the second 
 tenant for life, her cohIh ; and the defciulanl, the hr»l U*- 
 nanl for life, wan nfterwardu to |>Qy to the pbiuUfT* their 
 costs, toirctlicr with the coi»tM paid by them to the defend- 
 ant, the second tenant fur life(i). 
 
 7. The cases however of most frequent occurrence and 
 of the crt"«'t*''*t didiculty as regards injunctions at;ain»l 
 waste bv tenant for life, arc where he is* without in»|Mach- 
 inent of waste. I'or although tenant for life without im- 
 jjcachincnt of waste may at law commit waste within 
 certain limits, an for instance, may cut down Iree.H and con- 
 vert them to his own use, or open new mines {t) and will 
 not Ix? restrained by o«|uity from d< 
 he will be restrained by equity i 
 structive or malicious waste, such as destroying or raa- 
 
 (i) Comll ». Ckamben. MS. Roll*, ( f ) ( o. IJU, 220 t. umI the d. I ', 
 
 25Ui July. 1833. " '^ " '
 
 CHAP. I.] OF A SPECIAL NATURE, 143 
 
 terially damaging buildings, and cutting down ornamen- 
 tal timber, or timber which serves for the shelter of the 
 estate {x). 
 
 8. This doctrine was established by the case of Vane 
 V. Lord Barnard {y), where Lord Barnard having on the 
 marriage of his son settled Raby Castle on himself for 
 life, without impeachment of waste, remainder to his son 
 for life, with remainders over; afterwards conceived some 
 displeasure against his son, and collected 200 workmen 
 together and stripped the castle of the iron, lead, doors, 
 &c., to the value of 3000Z. Lord Cowper, C, granted an 
 injunction to restrain him from puUing down the castle, 
 and also ordered that the castle should be repaired, and 
 a commission to issue to ascertain what ought to be re- 
 paired, and a Master to see it done at the expense and 
 charge of the defendant. Lord Barnard. And in this case 
 it was said, that the like injunctions had been frequently 
 granted, and that the clauses without impeachment of 
 waste never were intended to allow the very destruction of 
 the estate itself. 
 
 9. But in a case before Lord Hardwicke (2), where a son 
 brought his bill against his father, who was tenant for life 
 without impeachment of waste, for pulling up a deal floor, 
 removing some young oaks, and converting meadow into 
 plough land, and vice versa, the bill was dismissed with 
 costs. No injunction was, it seems, applied for, and the 
 Court said, that it was not an immaterial circumstance that 
 the floor was placed and the trees planted by the father 
 himself. The point whether an injunction would have 
 been granted if applied for on the filing of the bill, was 
 not determined. According to the report, the bill did not 
 allege that the trees removed were planted for ornament, 
 and if they were not, that is an additional reason why the 
 
 (i) Co. Liu. 220 a, and n. 1 *, (y) 2 Vern. 738 ; Free. Chan, 454. 
 
 and the cases there cited. {z) Peirs v. Peirs, 1 Ves. sen. 521 .
 
 V(/ fur 
 urHttmcHt, the Iciiniil fur life will Im> rr»lnuiic<l rruiti cutting 
 tlicni duwii, even though ho |>lun(rJ tlirot l)iuitcir(a). 
 
 10. It It now ncttlcHi bv inony ctt«««, hooic uf which will 
 
 b<* |nirli(-(iLit ''■*■ 
 
 lu rmlr..... • , »'■ 
 
 from cii' < •londiiif; in liiioi, avpin m\^* in 
 
 u j>aik ; or iKivini; for »hiitli- or urnuiiicitt, tl*..u^li tli<y 
 nhuuM not U" pluiiiiil Int'u, but growing naliirully ; or 
 young MiplingM, und trcc» not fit to cut at timber (6); or 
 iVom cuttuig undenvood before it i» of tufficicnt growth (c). 
 
 I I. As to oniamental lin«ber the doctrine necmu fonncrly 
 to have been, llmt cfpiity would reBtruin linanl for life 
 without inipciuhnunt, fr(.in cutting trcei* if they were or- 
 iiauuntal, whtlln-r plaiiicd for uniumeiit or not (</); this it 
 clearlv not llie law of the C^url at the present day («). 
 
 V2. For it is quite »etlltd that thc( "ourt does not now pro- 
 tect timber merely because it is ornamental ; to obtain an 
 injunction, it must be hhown that the tinjl>er iti jifntiteri or 
 iiroxcimj for ornament, that is, planted or Kfl erowing with 
 an intent to atVord ornanunl. And an injunction would 
 not be granted on an alVulavil staling that trees " afford 
 ornament," because the expression is erpiivocal whether 
 they were planted for ornament, or whether the effect i» 
 ornament*/'). If tlie tinilx'r is planted fi»r ornament, it 
 Mill 1)1 |pi. t« if. (1. whether it is or is not ornamental. 
 
 ,„, ... ..,. ... 2:'j. 
 
 {b)Packiiigt0HV.Packi'<gUm.3\\)i. (d)St . », 2 Br. 
 
 215; Anon v. Atl'^n. I Vc«, 264; C. C. 8«. 
 
 OBrien v. OBrien, Amb. 107 ; Mar,). (e) Prr Loid Eldon. 16 Ve». 183 ; 
 
 Doicnthire v. Sandys, 6 Vci. 108; Coffin ^. C^iffin, J»c 10. 
 
 Tamuorth r. Ferrrrt, ibid. i\9 ; D^iy (/) Mar^. Dottn$liin r. fitLmdf$, 
 
 T. Mtrry, 16 V«. 376 a. '. \ c». 1 12. 
 
 (c) Brydg** V. Stfphent. 6 Mad.
 
 CHAP. 1.] OF A SPECIAL NATURE. Mo 
 
 13. The principle on which the Court has gone in re- 
 spect to ornamental timber seems to be, that if the testator, 
 or the author of the interest by deed, has gratified his 
 own taste by j^^cinting for ornament, although he has 
 adopted the species the most disgusting to the tenant in 
 tail, and upon the competition between those parties the 
 Court should see that the tenant for life was right, and the 
 other wrong, in point of taste, yet the taste of the 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 of clothing an estate with timber, for the purpose 
 of ornament, cannot safely be trusted to the Court (g). 
 And in a late case Lord Eldon said, " the doctrine of the 
 Court is extremely well settled. If the object in planting- 
 timber or in leaving timber standing is ornament, whether 
 that object is effected, whether the effect is truly orna- 
 mental, or the most absurd exhibition that ever was pro- 
 duced, this Court will protect that timber (A)." On the 
 same principle the Court will restrain tenant for life without 
 impeachment of waste from cutting trees planted for the 
 purpose of excluding objects from view (^). But the Court 
 will not go further than the order in Chamherlayne v. 
 Dummer{k), and in one case refused to include in an 
 
 (g) M. Dou'ns/iire V. 5a?idj/s, 6 Ves. tenant for life was not restricted to 
 
 107; see p. 110, et seq. It is difficult cut for her own use on the estate or 
 
 to conceive the species of evidence on for estovers only, but every thing 
 
 which a Court of equity can ever be which could be fairly called timber; 
 
 sa\d judicially to ascertain that a par- though not such sticks as would only 
 
 ticular act is right or wrong in point make paling. And the tenant for life 
 
 of taste. was in that case restrained from com- 
 
 (h) Wotnhwell v. Belasyse, 6 Ves. mitting equitable waste only, viz. from 
 
 110 a. n. cutting trees growing on the estate 
 
 (i) Day v. Merry, 16 Ves. 375 a. which were planted or growing there 
 
 (k) In the case of Chamherlayne v. for the protection or shelter of the 
 
 Dummer, 1 Br. C. C. 165, it was de- mansion-house, or which grew in 
 
 cided, that under a devise for life, con- lines, walks, vistas, or otherwise for 
 
 taining a power to the tenant for life the ornament of the house, or of the 
 
 to cut timber for Iter own use and bene- gardens, or parks, or pleasure grounds 
 
 Jit at seasonable times in the year, the thereunto belonging ; and from cutting
 
 140 KTAYINQ WRO«cart'L ACTt [part II. 
 
 ortlcr to rcittniiii tlir cuHi: - lUnl limber, Uie 
 
 wonlH *• wliitli cuiUtibuic lo V . . ' 
 
 A tenant for life unim|>«>achiible uf Mii»te m\\l be ru- 
 Rtrainvil fruni rutting tluMn trc«*^ii ornumcntui to a nuuiMon- 
 
 huuw, |mrk timl pietiKurt- ■• '- ..iii..... l. il . -« ttlcuu-nl 
 
 under uliuti lu- < Iuiuik > ; l<* pull 
 
 down thf uinnHiun-tiouM? without ivbi :ind uUh<'> jd 
 
 the ninn*it>i) hint, ui |>uniuiincf of mu n |m.>m t, liccti |>ulli-tl 
 down. I'or although the lrti-« niuy be iiilcitded fur the 
 Hhrltrr nml onianient uf the manmun-houfte, it does iiol 
 follow that they nrt- rxcluHivcly f<>r thnt purpoM.*, and 
 e<|uitv protftlM tr«H'« vwu if they are out of hii^hl of the 
 house (in). The latti^r profmHitiun in in accordance with 
 the ••iirliir uuthoritit •^ I'm). In the Mimjui* of /f ' < 
 
 V, S(inili/s the point \\;i>*, wliflhrr u hrfurh nl lli' 
 tiun had been coinniitteti by cutting domi tires on a com- 
 mon, part of the Kctlii-d pri>|H.>rlv, two inik-H distant from 
 the house. It wn.s Hworn that the trcen ucre pluntcil uith 
 order in clum|)«, for omumcnt to the common. On tlic 
 other side it was Rwoni that the common \\{\^ not in flight of 
 the hou8c. But Lord KIdon ^aid, the rcmottncikH or con- 
 tiguity of the trees, if de facto they were pluntitl for onia- 
 nient, could not niter the principle, although it might be (it 
 to be considered as evidence of intention, if tlie fact, 
 trhct Iter jtliintcd for nrnamcut or not, were under discussion. 
 And it appears, by a case before Sir J. Leach, that the 
 Court will adopt a liberal construction of the words of a 
 testator or Pettier m favour of the protection of tiie re- 
 luninder-iuaii. In the case referred to, estates were devised 
 
 down any timber or other tnes, ciccpt ordinary cue of tenant for life timpljr 
 
 in a hutbandlike manner and at *ea- unirnpeachablc of « 
 
 sonal)le times, and from cutting down (O Wilbami v. Af . , \'e*. 
 
 sa|ilings and young trees not fit to be 70. 
 
 cut as and for the purpose of ttmber, ' rn k U nu^u^ v. WtUftUy, 6 Siau 
 
 until the hearing or furtlier oider, sec ti'T. 
 
 1 Mr. C. C. 168, n. 3. The order in {■■ , i > "J Dovnthirt *. San- 
 
 tbu case has been made the general dyt, .i:. 1 I! .butli \. Btliatyn, cited 
 
 model for the ordere isaoed in ihc •!i(<^, |>. 1 lO.
 
 CHAP. I.] OF A SPECIAL NATURE. 147 
 
 to the defendant for life without impeachment of waste, 
 except the timber growing in the park, avenues, demesne 
 lands and woods adjoiyiing the capital messuage. The 
 tenant for life cut timber in woods adjoining the park, and 
 in one about 290 yards distant from it : there were no 
 woods strictly adjoining to the cajntal messuage. The 
 Court held that the word " adjoining" must be construed 
 to relate to woods so adjoining to the mansion-house, as to 
 contribute to its comfort or pleasure; and granted an in- 
 junction (p). 
 
 14. In Coffin v. Coffin (q), Sir J. Leach, V. C, said, that 
 as to waste at law, if any act of waste be established, the 
 Court restrains not only the particular act, but all waste 
 generally ; and so in the case of equitable waste, if the 
 complaint be established as to one act, the Court will re- 
 strain all equitable waste generally. In that case an ob- 
 jection was taken that the injunction was to restrain the 
 cutting down of trees planted or left standing for ornament 
 or shelter, and also saplings and immature trees, while the 
 bill did not allege any waste as to saplings or immature 
 trees ; but the objection was overruled. On the case coming 
 before Lord Eldon, his Lordship seems to have expressed 
 a doubt of this doctrine (r). 
 
 15. It must be observed that the Court never grants in- 
 junctions on the principle that they will do no harm to the 
 defendant, if he does not intend to commit the act in ques- 
 tion. If there be no ground for the injunction, it will not 
 be supported (s). 
 
 16. With regard to the obligation imposed on a tenant 
 for life without impeachment to cut timber only in a 
 husbandlike manner, it is to be observed that the Court 
 
 (p) Newdigatey.Newdigate, 1 Sim. (r) Coffin v. Coffin, Jac. 70. 
 
 131. (s) Ibid, 
 
 (q) Mad. & Geld. 17. 
 
 l2
 
 148 •TAYIWfS WROXCPrL ACT* [PAIIT II. 
 
 tlocu not cx|KCt u icnunt for life to let Umber ipt)w no long 
 an a tcnuiit in fee inij^hl find it lii» interciit to do (0- 
 
 17. A unmll «lcj;rt-c of wujitc by tenniil for hff, moni- 
 fcHtiiig nn lulfiilion to tlo inont", or i-vcii u tlirt-nt to cuiniiut 
 waste, will Ih' uullicicnl for the Court to uit u|>on (m). 
 TliUH, in the ctMs o( Coffin v. Coffin, ulrently referred to, 
 where thr awiptice of tenant for Iiff without ir^ 'lit 
 
 gave notice of un intention to cut «l<jwn Irct-s oi: il to 
 
 the manor houfie, an injunction obtaineil UjKiii bucIi tlireat 
 was HU|)|M»rte(l to the extent of that hjieciei* of wai»te to 
 whioli the notice referred, but not further. Hut where the 
 acts of waste were of very small extent, and nioftt of tlieiu 
 had been committed some years before the commencement 
 of the suit, and il apjx'aied that since the filing of the bill 
 llu' deffiulunt had ceased commilling waste, a motion for 
 an injunction wa« refused (x'. The motion wa* afterwards 
 renewed upmi an allrL'alion that the defendant had since 
 comiiiillrd fiirtlK r ads u( waste. It ap|K'ared, however, 
 t1i;it thf valiK; of thr timl>cr cut wa« exceedin^ly Bmall; 
 that part of It had b« «n cut to preserve the other trecj^; 
 that the cuttings had been cm|)loycd in repainng fencei*; 
 and that the projwrty had not been put in any hazard. 
 I'ndcr these circumstances the motion was again refuseil. 
 The case ai)|>cars to have been partly decided by analogy 
 to the rule which prevailed at common law, that in an ac- 
 tion for waste, where there has been a verdict for plaintiff', 
 but the damage done is very small, judgment will l>e en- 
 tered up for the defendant (y). It is to l>c observed also 
 that, in rcru>iiig the first motion, Lord Kldon appears to 
 lia\e iiwcn some W(ii.'lit t<» the circumstances that the de- 
 lendant was the father of the plainlitV, and ha<l originally 
 bc(M) tenant for life without impeachment of waste, but had 
 
 (r) Jac. "J. r Harry v. Barry, ihpna. 
 
 (ii) Borry v. Harry, 1 Jac. 6t U . I v t liarrmr Schcet f. ,4Wrrf-t, 2 
 
 651 ; Cofin \. Coffin, Jtc.lO; and sec I5o5. j< Pull. 86. 
 Gtbutn V. 5milh, 2 A\k. 183.
 
 CHAP. I.] OF A SPECIAL NATURE. 149 
 
 by settlement reduced himself to be impeachable of waste. 
 The principal grounds, however, of the decision appears to 
 have been the delay on the part of the remainder-man, and 
 the trivial extent of the waste. 
 
 18. But although a tenant for life without impeachment 
 of waste is in equity, as we have seen, restrained to a cer- 
 tain extent from committing waste, he is not bound to 
 adhere to the rules as to cutting trees which a tenant in fee 
 might observe, for the purpose of husbandlike cultivation. 
 He will not be restrained, therefore, from cutting trees merely 
 because thev are thriving, or because cutting them down 
 would injure the saplings ; it must be shown that the trees 
 are unfit to be cut as timber ; for if they are so far ad- 
 vanced as to be timber, he may cut them in equity (z). 
 
 In a case where a tenant for life impeachable of waste, 
 with power of appointment to her children, executed several 
 deeds, making some appointments, and releasing her 
 powers, the effect of which deeds was doubtful, so that 
 the interests of the children were not clear ; and they all 
 agreed with the mother to suffer a recovery of the estate, 
 and to declare the uses to her for life without impeach- 
 ment of waste, with remainder to other uses; Lord Eldon 
 thought on the whole that the arrangement might be sup- 
 ported, and that an injunction which had been granted to 
 restrain the tenant for life from committing waste must 
 fail. The order ultimately made was, that the plaintiff 
 should give security for paying to the tenant for life the value 
 of the timber which she might have cut, if at the hearing 
 she should be held entitled, and in default of such hearing 
 the injunction to be dissolved («). 
 
 19. An injunction will be granted against a jointress as 
 tenant for life, unless she is expressly made dispunishable 
 of waste ; and that although there be remainder for life 
 
 (z) Smyihe v.Smythe, 2 Swans. 251. (n) Davis v. Uphill, 1 Swans. 129.
 
 150 UTAYIXO WROWOFfl. ACTK [iMRT 11. 
 
 uftiT her lifi* Mtnlr, mnnindrr in tail, by rwmon of which 
 wexnt ]■• hIiouM not Iw puiii**hn)jl(* ot liiwiA). 
 
 But in . n jumtrriui, who hud a t-ovrnuul ihut 
 
 hrr jointure Hhoiihl Ih* of Huch n ymrly vnhic, which fell 
 short, wiiM not enjoined front ronunittnii^ \«tiHtf' to make up 
 the defect of her jointure, although her mitAle wa* not rx- 
 prcHHJy without iin|>enrhin<*nt of woiite fr). JuintrcM in 
 tail will not l>c rcHtniuied from cuttmt^ tinil»er, l»c<-ttu«r nho 
 hnth the inheritance (»/). In tlie cntw* rtfrrre<l to, \joni 
 Nottin^hnm hiyt down the <liHtinction on which a (V>nrt of 
 equity interfere* in »onie caj»e« to reittmin wuHtc, and in 
 otljcrs refuse!*; vi/. tlint wliere the tenant lian u hare iixh-m- 
 nitv or impnmty, a.s if there Ik* tenant for life, nnininder 
 for life, reversion in fi »-, there he will Im« restrained in 
 ecpiity. T^iit if he have a rii,'ht in the thinu itwif, when it 
 is wasted and cut down, there it i« no way r«*aHonal>le that 
 he should be restrained. 
 
 JO. In the 1,'renl case of T/ic Attornci/-Ctrnrral v. Duhc 
 of AffirlhoroMffh(r), a question arow; whether a tenant 
 under an act of parliament, under such limitations as 
 would in a deed have made him simply tenant in tail, but 
 with a proviso restricting^ the power of alienation by fine, 
 recovery, or any other conveyance, w«iuld Ix; imp-achablc 
 of waste, cither lec^l or equitable ; and Sir J. Leach, \' .C, 
 thou'dit that the le<rislaturc must be intended to use words 
 in their legal sense; that therefore the estate waa primarily 
 an estate tail, with all the incidents of an estate tail, and 
 with them the uncontrolled power of committing waste; 
 that file Icirislature, by im|K)»in'( an exprei^s restriction upon 
 one incident of the estate, by inference left all the other 
 Ici^al incidents subsistinir ; that the case standing thus upon 
 principle, there was no precedent of the Court having ex- 
 ercised jurisdiction to restrain waste by a tenant in tail 
 
 (6) Tresham v. Ctermrd, Tothill, 400. 
 144; Ba$tttt v. liauetl, F'loch, \B9 ; (d) SktUon m. Sktitan.hcfon Lord 
 
 1 Vera. 23. Nouingham. u-c 2 .^^iraDs. 170, netU. 
 
 (r^ r r T. Carnc, 1 Eq. Ct. Ab. («) 3 Mad. 498.
 
 CHAP. I.] OF A SPECIAL NATURE. 151 
 
 deprived of the power of barring his successor; and accord- 
 ingly upon the acts brought before the Court on the first 
 hearing of this case, the Court allowed a demurrer to a 
 bill for an injunction. But afterwards it appeared that 
 there was another act made in pari materia, and the Court 
 was of opinion, that the intention of the legislature was to 
 be collected by implication from the whole language of all 
 the acts taken together. The act in question (5 Anne, 
 0. 4) recited, that the house of Blenheim was erected at 
 the Queen's expense, and proceeded to settle a pension on 
 the Duke of Marlborough and his posterity, for the more 
 honorable support of their dignities, in like manner as his 
 honors and the honor and manor of Woodstock, and the 
 house of Blenheim, were already limited and settled ; Sir J. 
 Leach thought that all the acts together afforded a clear 
 and necessary implication, that it was the intention of the 
 legislature that the house of Blenheim should in all times 
 as a distinct subject descend and be enjoyed with the 
 honors and dignity of the family; that the legislature im- 
 posed upon every possessor of those honors and dignities, 
 the obligation to maintain the house of Blenheim for the 
 future residence of those to whom the succession was 
 limited; and that the Duke had no power of destruction 
 over the house, or over timber essential to the shelter or 
 ornament of the house. 
 
 21. In a case before Lord Eldon, there was a devise of 
 real estate to tenant for life without impeachment of waste, 
 remainder to trustees to preserve ; remainder to the first 
 and other sons of the tenant for life, in tail ; remainder to a 
 second tenant for life without impeachment of waste, re- 
 mainder to trustees to preserve; remainder to a third tenant 
 for life, and after several other intermediate limitations, re- 
 mainder over in fee : and by the same will personal pro- 
 perty was given to the first and second tenants for life, in 
 trust to purchase lands, and to settle the same in the same 
 manner as the devised lands ; the trustees purchased lands
 
 1-iO HTAYiKn wn<»N<:ni. acts [part n. 
 
 on which was u cou^idiTuliUr c|uaiility uf liiubcr, wluih th«' 
 (ml tenant for life tut. The niutenul «|uc.->iiun was, who- 
 ihtr the |M>nMjnal ci-tale U'liui athrii in truiil wan j)ro|Krly 
 luid out by the trunteeH ui un entutc on which wan a «|uaji- 
 tilv of tnnlxT, nnil whether an nij unction could be »u*- 
 tainril a^aniHt the firnt tenant for hfe cutting; IiujIkt. Tliio 
 (lueHtion Lord KUlon wouhl not decide, the fniinc of the 
 record not Iwin^ »iich an to brini; it |>ro|M'rly Inrforc 
 hiin(r). Iliii Lonl^hip a|)|»ean<, however, to have cnlrr- 
 tained Home idea that if the vahie of the tunlx-r bore u 
 •iieat j)ro)M)rti(«n to that of the whoh- estate, there nniHl \h' 
 Hoinetlnn}^ in thr nature of un ((jiiilablc partition between 
 the successive tenants for hfe. 
 
 ;,':,'. A tenant for years ought not in general to commit 
 waste of any kiiitl, ;ind may Ik; rcstmincd by injunction at 
 tlic suit ff tli< Kinaindcr-man fc»r \i(r(f). Hut though it 
 is waste in u tiuanl for years imj)rc»|)erly to work mines, 
 vet it was hiid down in an early case that the Court will 
 not, on account of the great inconvenience, stay working 
 citilieries, unless there is an express breach of covenant or 
 uncontrovcrled mischief (//). A tenant for years is, how- 
 ever, frequently made expressly dispunishable for waste, 
 and then although he will nut be restrained from com- 
 mitting cirdinary waste, ecjuity will interfere as in the case 
 of tenant for life without impeachment of waste, to prevent 
 destructive or malicious waste. Thus in an old case where 
 one was lessee for years smis tvastc, remainder in fee to 
 a bishop, the lessee was restrained by the Court from dig- 
 ninn- the ground for bricks, as this was to ruin the inherit- 
 ance (/i). 
 
 23. And hero wo mav observe that a tenant for years, 
 
 («) Bur^«T. Lamfc, 16Vcs. 174. Vcs. 2fll. 
 
 (/) Ucstrell'f case, I Roll. Ah. (h) Bishop of Jjondon ». WM, \ 
 
 377. I'- ^Vms. 527. 
 (g) Anon. Amb. 209 ; ic* also 17
 
 CHAP. I.] OF A SPECIAL NATURE. 153 
 
 althouoh expressly dispunishable of waste as between him 
 and his lessor, may be liable to be restrained as between 
 him and third parties. This point arose in Turkington v. 
 Kearnan{i), on a lease containing a power of committing 
 waste, granted of lands subject to a prior charge; and in a 
 suit touching these lands, a decree was made, declaring the 
 lease good quoad the power to commit waste, and at the 
 same time sustaining an order to restrain waste, the in- 
 cumbrancer being still unpaid. On a re-hearing, Lord Chan- 
 cellor Sugden supported the decree on that point, on the 
 ground that the lease and its power to commit waste might 
 be good as between the lessor and lessee, and yet the 
 lessee might be restrainable as between him and the in- 
 cumbrancers, for any waste tending to diminish their security. 
 Where the covenant was that the tenant should not 
 plough pasture land, but that if he did, then he should pay 
 after the rate of 205. an acre per annum, the Court refused 
 to restrain him, treating this as a case of contract to do a 
 certain act on given terms; and said if he, the defendant, 
 had been plaintiff, having ploughed, and sought to restrain 
 the lessor from requiring the 20^. an acre, the Court would 
 not have enjoined the lessor (A). But in another case, 
 where a lessee held under a covenant not to break up or 
 dig, and that if any part of the premises should be " dug 
 or broken up, for the using or taking away of brick earth, 
 sand, or gravel, then the lessees should in every or in any 
 such case pay to the lessors 100?. for every acre which 
 should be so ploughed, dug up, or broken," &:c. this was 
 treated as a case of penalty, and the House of Lords held, 
 against the opinion of Lord King, that the lessee ought to 
 be restrained by injunction from digging or breaking up 
 the ground till the hearing (Z). 
 
 24. Stipulations against particular acts of waste are 
 
 (i) Lloyd & Goold, 35. Br. P. C. 436. 
 
 (/c) Woodward v. Gyles, 2 Vern. (/) Ciiy of London v. Pugh, 4 Br. 
 
 119; see also Uolfe v. Patenon, 2 P. C. 395.
 
 154 8TAYIIIO WROWOFl'L ACT* [PART II. 
 
 somelimM introtlucetl in lea«rH. WIumi llu- Hlii.ulution is 
 ill the nuturt? of ii prmtlty, |iro|>«rly »u calUtl, e«|uity will 
 j;ninl nn injunction to rri»tnun the Ii-hmti- from «loing the 
 jwrticulnr net which n* llu- nuhjrcl of the |M-nally. Hnl 
 whrro the in»rprmcnl ih «uch nn to nhow thut the intention 
 of the parlitH ih not |.ro|Hrly to prevent the net hy a iM-imlty, 
 hut to iigrcc on tcrinn for doing it, an injunction will not Ik; 
 {;nintcd. 
 
 26. Art l)ol\vccn leswor niul V'M(^\ the cnicii on injunction* 
 to rc'itnim the tenant from comiuittinjj wuhte, are, iihIimmI, 
 nu*!-! fn «juenlly on actual or implied covenuiiti*; and the 
 m|unction i^ then more pro|)crly, holh in form und sub- 
 blancc, to rcslruin breach of covenant than ULfuiiiit wonto 
 simply- 
 
 '2C). Thus where llu re it, a covenant to manage paBturo 
 in u llu^bau(lhke niaiiner, that is e<|uivaieMt to u covenant 
 not to convert plou^;h land into pasture, and an injunction 
 will be ^jranled. In Pultnit-;/ \. Shelf (t» {m), the tenant 
 had i;rcally neulccted hih lurm : iificr an <jeelmeiil brought 
 at^ttinst him, ti> which he made default, the plaintiflwaa non- 
 suited. The tenant then refused to (|uit, and declared he 
 WAiuld do as much mischief as he could. N'arioua iubtaiices 
 of wilful waste were sworn to, and the tenant had, amonp 
 other things, threatened to plough up meadows. On this 
 state ufcircumstances, he was restrained from carrying away 
 dung, crops, and corn, and from plonghinir up meadows, 
 and from committing other wasi. 
 
 Again, in Lord (irey dc Willim v. ."^it.iini id, although 
 Lord Eldon doubted whether he could grant an injunction 
 against waste, on the mere ground of converting meadow 
 land to other purposes, unless on afTulavit that it was an- 
 cient meadow, yet he granted the injunction, on the ground 
 of there beins; in the lease an express covenant against such 
 conversion. And it has been decided, that the principle 
 
 (m) ."■) Ves. 260, notit. (n) 6 Ves. 106.
 
 CHAP. I.] OF A SPECIAL NATURE. 155 
 
 that a tenant must treat the farm in a husbandlike manner, 
 according to the custom of the country, apphes as well to 
 a tenancy from year to year, as to a tenancy for a longer 
 time ; and therefore a tenant from year to year, who has 
 received notice to quit, will be restrained on affidavits from 
 taking away crops, &c., except according to the custom of 
 the country (o). 
 
 And a tenant from year to year under covenants to culti- 
 vate in a husbandlike manner, has been restrained on an 
 ex parte application (supported of course by the usual affi- 
 davits verifying the allegations of the bill), generally from 
 waste, and, among other things, from ploughing up an- 
 cient meadow or old pasture land ; and from sowing any 
 part of the land with mustard seed, or any other pernicious 
 crop (p). 
 
 27. There are two cases which are contrary to the cases 
 above cited, on the subject of covenants to cultivate in a 
 husbandlike manner, not to plough, &c. One is a case of 
 Latthroj)p v.Marsh{q), in which, although there was an ex- 
 press covenant not to plough meadow, and to manure the 
 land in a husbandlike manner; and although it was sworn 
 that the tenant sowed winter corn without manure, and 
 threatened to plough meadow, and commit all the waste 
 he could, yet the Court refused to grant an injunction, 
 distinguishing the case from Pulteney v. Shelton, on the 
 ground that in the latter an ejectment had been brought. 
 
 The other is a case in the Exchequer, in which the de- 
 fendant was tenant under a covenant to spend on the 
 premises all the hay, straw, and holm arising in the last 
 three years; and an injunction to restrain him from carrying 
 away straw and dung in the last year, and from plough- 
 ing up an excessive quantity of land, was refused^ on the 
 ground that it was not irremediable inj ury. As to the plough- 
 ing, the Court distinguished between this and the plough- 
 
 (o) Onslow V. , 16 Ves. 173. (g) 5 Ves. 259. 
 
 (p) Pratt V. Brett, 2 Mad. 62.
 
 ]')G sTAVISO WRONGPri. A( IS [PAIJT 11. 
 
 iii^ o{ uiicicitt iiicailuw, uiul tliuu^lit tliut it was u (jui-fttiuu 
 of till? projM-r qiiuiititv of land to Ik.- i-roj)jH.'ii ; und as to 
 the Htruw and luunun*, tliul it wuh mcrfly breach of con- 
 tract (r). 
 
 It iH ilillicult to Qccotiiit on |)riiici|tk' for the tlcciHion in 
 llicHc two cuHrn; tind the wiiyhl of uuthonly u|i|K*un*, I 
 concrivf, by tin* ounri* to wlucli 1 Imvr rffrrrcil, lo be in 
 su|)|M>rt of the |»ro|M)Hitioii, that wIuti" thcrt* in nn cxprcsK 
 or implii'd covrimnt on the j)art of tin- U-h-mt to (-tdti\!tt«- mi 
 u lui^lxindlikr nuinncr, not to plough puhttirc, Ace. 
 u Nimdar tllt'ct, an injunction will \)v gnmled to psiraiii 
 arts incoii^i.stcnt with such covt-nant. 
 
 2^. \\ illi icj^aiii to tile question what in ancient panture, 
 it has been iield, that where pastuies have l>een plouj;hed 
 within six years before tlie l)cginning of a leofto, they ore 
 not ancient pastures, althou[:h they may have reinain«-d 
 for thirty years dnrinj; the leaj^c nnploughed, and the tenant 
 \sill not be restrained from ploughing them. Hut it seemH it 
 would be othenvise, if during so long a period of tirac 
 thev were out of lease and unploughed is). And it has 
 Ix'cn held in a case in Ireland, that as between rrMnaindrr- 
 man and tenant for life, it is not waste to plough uj) pasture 
 lund held under leases, unless it was pasture at the date of 
 the lease (0' 
 
 29. Before concluding the subject of converting meadow- 
 land, I will advert to a casc(;i) in which the question was, 
 whether the governors of the Foundling Hospital should be 
 restrained from proceeding in the execution of contracts 
 for letting the open fields surrounding the hospital upon 
 building leases. The case was argued chiefly on the ground 
 that the original design was to have the hospital in the 
 
 (r) Johmon v. Coldtvaiue, 3 Anst. (l) Mon-it v. Morrit, Hog. 238. 
 
 749. (u) Attorney General v. Foundling 
 
 (i) Goring V. G(?rinf,3 Swans. 661. Hospital, 2 Vcs. jun. 42. 
 I>ord NotU MS.
 
 CHAP. I.] OF A SPECIAL NATURE. 157 
 
 country for the health of the children ; that the funds of 
 the hospital were ample for its purposes, and the risk of 
 the building leases ought not to be incurred ; and that the 
 contracts were improvident. But the Court, admitting that 
 where the governors of a charity have the management of 
 the revenues, and are abusing their trust, the Court has 
 jurisdiction, was of opinion, 1. That it was not made out 
 that the hospital being in the country was part of the 
 original plan; 2. That there was no sufficient evidence 
 that the plan proposed would endanger the health of the 
 children ; 3. That viewing the terms on which the leases 
 already were made, it was impossible to treat the conver- 
 sion of meadow into building ground as waste ; and 4. 
 That in other respects, there was nothing to show that the 
 governors were dealing improvidently, or to rebut the pre- 
 sumption that they were doing their duty as trustees ; and 
 the injunction was refused (.r). 
 
 30. In Ireland leases for lives, with covenants for per- 
 petual renewal, are considered, it seems, as perpetuities; 
 and a tenant under such a lease will not be restrained from 
 raising limestone (y), unless there is an express reservation 
 against quarrying in the lease ; and to that extent an in- 
 junction will be sustained; nor from cutting timber (z); but 
 if he owes a large arrear of rent, and refuses to pay it, and 
 threatens to commit waste and leave the country, it will be 
 otherwise, as then his interest cannot be reasoned on as a 
 perpetuity («). 
 
 A tenant cutting turf for his own use has been held in 
 
 (t) I have stated this case, and the junctions, p. 226), a position which 
 
 grounds of the decision in it, more fully does not appear to have been directly 
 
 than would otherwise liave been neces- decided by this case, 
 sary, on account of its being cited by (y) Calvert v.Gason, 2 Sch. & Lef. 
 
 Mr. Eden, in his Treatise on Injunc- 561. 
 
 tions, as an authority for the position, (s) Conolly v. Lord Ely, 2 Mol. 
 
 " that an injunction has been refused 515: and see Percy v. Shanty, ibid. 
 to restrain the burning of bricks near (a) Pini v. Davies, Hog. 11 ; White 
 
 the habitations of men" (Eden on In- v. Xowlan, Hog. 21.
 
 158 --iAIlM. W HUM.* t I. At lb [i'AUT II. 
 
 Irt-laiiil iioi ^;;uil(y vt w«-U(//); bul u tenant will be re- 
 ^trunirU Jruiu i-uUiat{ tiirl l-ir wiU' coiiliury to Iiih loaw, 
 which only nlluwrd hiin u rij^ht of vftto^ii. Ii is no lie- 
 ffiict' lo II bill inf un iiijuiution in imih a caw, lliut ihc 
 trniint, ami llio«<; under whom he «lcrivtri, Imve Ixfn um.hI 
 lo cul lurf for mIo for eiuhty yemn ; for the abuiK? of » 
 right BM iK'lwien liiiant unil liimllonl. for howcvn !• i- . 
 cunnot i^'ivc ihe i«iiunl a ri^ht, wiii hiB nghlj» ur» oiil\ iw 
 Ijc RM-trlameil by ll>« Katic (<). 
 
 31. Annin, in uiiuilicr ca.H»'(f/) the same diHlincUun was 
 Ukcn, I.ortl llftlcHclalc rcluHni'^ to n hlmin a UMiunt Iroin 
 cutting turf, on the ground, uh it a|i|)carH, that the Uiiaul wa* 
 tiititlcd to turf for fire bole, and that the aHidavit to nup- 
 porl an injunction ought lo have hlulcd thai lh«: liirl wau 
 taken for hale. The ob»ervuUonii of ihc (,'ourl, ucconling 
 to the report, arc not very intelligible : the Lord Chan- 
 cellor is said to have ilistini^uished llie case from that of 
 Mitclu'U V. Dors, haying. " that is wuhte ; tliib is not." 
 
 •Now the ciu-e of Mitchell v. J)or>(e) was cxpreKHly 
 treated by Lord LIdon us u cajie of trcsjHiss, and not ol 
 waste ; while on the other hand, the cutting by a tenant of 
 more turf than he is entitled to, is, it is subnnlU d, if not 
 actually waste, trespass in the nature of wa.Ht* , Ijv dcftlrut- 
 tioii of the inheritance (/). 
 
 32. There are also many caBCB in which e(juily hai» in- 
 terfered, to j)revent j)articular acts in the nature of wai.U' by 
 tenants for years of houses ; and Uiis will be done even in 
 the absence of express covenant airainst such acts of waste. 
 Thus, if a person aj)plies for and obtains an agreement for 
 a lease of a house, on the failli of his wanting it for a 
 
 (6) Count cf«So/M\. , 2 .Mol. H. \M. 
 
 616. {*) \ c». 147. 
 
 (f) Lord CourKmn v. F»'<ir<i, 1 (/) Sc« Crotkford v. AUiaiuUr, 
 
 Sch. 6c Lef. 8. \"> Vc». 138 ; E. Cowper v. Baker, 17 
 
 (d) Dc Salu T. CrotMn, 1 Ball Ck V«&. 128.
 
 CHAP. I.] OF A SPECIAL NATURE. 159 
 
 private dwelling house, and not to carry on any trade, the 
 lessee agreeing to expend a certain sum in repairs under the 
 direction of the lessor ; the lessee taking possession under 
 that agreement will be restrained from altering the house for 
 carrying on a business in a manner that destroys its fitness 
 for a private dwelling house (^). But it has been held, 
 that a lessee will not be restrained before answer from 
 doing that which is in effect carrying on his trade, although 
 it is sworn that what he does is likely to injure the lessor's 
 buildings, and that people are afraid to live in the build- 
 ings ; for if he does any special injury, the lessor has his 
 recompense by an action for damages (A). 
 
 33. An injunction will be granted to restrain a tenant for 
 years from destroying a dove-cote, but not from removing 
 presses, unless they are fixed to the freehold (i). And 
 where a lease, with express covenants to repair and for 
 cultivation, turns out to be void, the tenant holding over 
 will not be of necessity restrained from doing acts which 
 would be waste under the lease, although such acts are al- 
 leged to be contrary to the custom of the country, unless 
 they amount to clear waste, without reference to the lease ; 
 as it does not follow that the same relation subsists between 
 the landlord, and the tenant holding over, as would subsist 
 between them under the lease (^). 
 
 It has been decided on demurrer, that a covenant by 
 the lessee to deliver up at the end of the term in good re- 
 pair, has not the effect of preventing him from being re- 
 strained during the term from pulling down the premises, 
 and earring away the material (Z). It may appear some- 
 what strange that such a point should ever have been 
 raised, as a case of this nature seems to stand on the same 
 principle as the numerous cases to which I have referred, 
 
 (g) Bonnett v. Sadler, 14 Ves. 526. 349. 
 
 (Ji) Jackson v. Bernard, Ridg. (fc) Ibid. 
 
 259. (0 Mayor nf London v.Hedger, 18 
 
 (i) Kimpton v. Eve, 2 Ves. & Bea. Ves. 355.
 
 inO KTAYINU WRONOPIL A<T8 [I'AUT II. 
 
 wlu-re e(|uily tlix-s uni U-uve the lchj»ur to his niurily at 
 law fur brtach ol cuvntaiit coiuiuilUd, but intcrj>u!»ch to 
 pn'veijt the ilculruttion which wuuld be produced by 
 breach uf the cuveiiuiit. 
 
 34. The c|ucMtioii Hrhflltcr tenant in tail oAcr posnibiUty 
 of iHsue tvtiiict run cut tiinbir, Hceuiu to li ' * 
 
 mrrly ihr subject of doubt i/;. Ilul it ban 1 
 tied that tenant u\ tail after |>o8Hibility of iskuc extinct, 
 who h:i«* once bren tenant in tail in y , may cut 
 
 UiuIkt, and haH the projK:rty in the tujib' « ut, or, uj* 
 
 it i8 stated in the old ea6e«, m in every respect u» unini- 
 peachabl*' for waste, as tenant f<»r life who is nmdc no by 
 f\|)rcs>i lin>ilalion(fM). 
 
 '.ir>. There is also now stronj^ «:rotnKl f<»r c tli.il 
 
 where there is tenant in tail after pofiMbilily oi . \tiiK t 
 
 in remainder, who has never been tenant in tail in |>o»6c»- 
 sion, such tenant may cut limber, and is entilh-d to it when 
 cut. This |H)int was in etl'cct decided at law in Willutmt v. 
 ]\'illitims{n), in which tlu" limitations material to thi» |K*int 
 were to the husband for life xcithout impeachment ; re- 
 mainder to trustees to preserve ; remainder to the w ife for 
 life, for her jointure; remainder to the sons succes.sively, 
 and the litirs luaie of their brnJics ; remainder to Uic 
 ilauLihtcis in like manner. In default of such issue, rc- 
 inaiiulcr to the hcir.s of the bodies of the husband and 
 wife. The husband died without issue. Ix)rd Eldon 
 doubted whether tiie wife- was tenant in tail after possibi- 
 lity of issue extinct, within the reasoning of the c)ld eases, 
 in none of which, his Lordthip said, tenant in tail after 
 possibility was said to be dispunishable of waste, where that 
 tenant had not been once tenant in tail with the other 
 
 (/) Sec tlie argumcnis and judg- Ancn. id. 278. 
 
 roents in WiUiami v. Williamt, \b (m) ISVes. 430; and tee Eden on 
 
 Vts.tl9, and sec I^wit Boulu'i eat*, Injun. 183. 
 
 n Hep. 80; LiU. s. 352; Co. Lilt. (>0 12 EaU, 209. 
 27 b; Abraham v. Bubb, 2 Frccm. bi ,
 
 CHAP. I.] OF A SPECIAL NATURE. 161 
 
 donee in possession, A case was directed to the Court of 
 King's Bench, who certified, 1, That the wife was unim- 
 peachable of waste; 2, That having cut timber she was 
 entitled to the timber as her own property ; 3, That she 
 became tenant in tail after possibility of issue extinct. 
 
 The third answer clearly does not meet the difficulty 
 suggested by Lord Eldon, who did not doubt that under 
 such limitations she would be tenant in tail after possibi- 
 lity of issue extinct, in some sense, but whether there 
 was not a distinction between a tenant in tail in remainder 
 who had, and one who never had had the inheritance in 
 possession; but although the point raised by Lord Eldon 
 does not seem to have been argued in the Court of King's 
 Bench (71), yet as the limitations were before the Court, 
 and as having those limitations before them, the judges 
 were of opinion that the wife was unimpeachable of waste ; 
 it is to be presumed that as regards liability to waste at 
 least, there is no distinction between a person taking under 
 such a limitation, and a tenant in tail after possibility, 
 who has been in possession. 
 
 36. Although however tenant in tail after possibility 
 of issue extinct, is without impeachment of waste, yet he 
 will be restrained from malicious or destructive waste, 
 such as cutting down trees being for shelter or ornament; 
 pulling down houses (0), or any other malicious or de- 
 structive waste. Li these cases the distinction between 
 trees planted for ornament, and trees bemg ornamental, 
 does not seem to have been attended to; but no doubt the 
 Court would now follow the same principle in that respect 
 in regard to tenant in tail after possibility, which it applies 
 to tenant for life without impeachment for waste. 
 
 Although tenant in tail after possibility of issue extinct 
 needs not attorn, that privilege is in respect of his person 
 
 {11) See 12 East, 209. see 2 Swans. 172; Anon. 2 Free. 278 ; 
 
 (0) Abraham v. Bubb, 2 Freem. 53; Coohe v. Whalley, 1 Eq. Ab. 400. 
 
 M
 
 \C}'2 KTAYIXO WROXGPl'L XCJA [PADT 11. 
 
 uitd nut of \u» cHlute, uml ii» dcalruyctl by aM»i^i)UK'ii(, uiut 
 lInrrliTC liiit u»iii({iKC imjhl ulton>(^). And it m to be 
 l>iiMtuu(i that the u»*igiicc muuM be rcjiUuiiicd, u« mere 
 tcuuiit fur life, IVuiu every kiud uf wu*lc. 
 
 37. Triiiuit ill tluwcrf/y), aiiJ by ihc curtesy (r), may nut 
 cumiuit nuKte. 
 
 38. Ill •^M-iierul, c«juitv uill nut iiilerfcrc between tcnantji 
 in commuii tu rcstruiii wiuitc, nut uiuountin^ tu dent ruction, 
 on these ground", — that «'tie teiiunt in c- ; 
 
 nghl to enjoy as he |ilcu»Ch ; that the I»ort\ _ 
 
 inuy reUeve hiiuKelf at law by the writ of purtiliun, and the 
 Court will not act against the Icjul tith- to |. i of a 
 
 tenant in common («>. The Court will, howi. . ., . iruin, 
 where the ailidavit of the plnintitf Bwe;ini that the tenant 
 in possession is insolvent, and unable to |iay tu hih co- 
 teiiunts their hhureii of the money |jroduce<l by the »ale of 
 the limber cut(/); or where the wante amounls to malici- 
 ous destruction, or cutting sa)iling!i and timber trees, or 
 umKrwood at unseasonable times; but n(»t ag^iinst meic 
 etiuitable waste, as cutting down mere ornamental trec«(i/). 
 The same doctrine was distinctly laid down in Tumrl v. 
 Tworl^x^. In a verv late case, when' there beini: four 
 tenants in common, three agreed to grant a lease of the 
 land H) a railway company, but A., the fourth, lefuscd; 
 and notwithstanding' that, the company entered and con- 
 structed a railway, and then A. recovered against them in 
 ejectment ; the Court refused an injunction to restrain A. 
 from pulling down the works of the company (y). But if 
 
 (p) Ap Rict\ ea*t. 3 Leon. 241. (0 ' , 3 Br. C.C. 
 
 (9) Co. Liu. 63 a. 621. 
 
 (r) RoberU T. RoUrli, Hard. 96. (u) HoU v. Thcmat, above cilcd. 
 
 (j) Hole V. Thoma,, 7 Vcs. 589; 1 (i) 16 Vet. 128. 
 
 Sim. &: Stu. 144 ; Co<>du<r> v. Spr.m, (y) Durham and Sunderland R«i7- 
 
 Dick. 667. 'V Company v. Il'd'xa, 4^^111,764 ; 
 
 atrfi 1^^ I Kailway Caaea.
 
 CHAP. I.] OF A SPECIAL NATURE. 163 
 
 one tenant in common will occupy the whole as tenant to 
 the other, he contracts thereby to occupy one raoicty of 
 the land as any other occupying tenant would do, and ho 
 will then be restrained, by an order stating expressly that 
 he is the occupying tenant to the plaintiff, from committing 
 any waste on the premises which he holds as such occu- 
 pying tenant (2). 
 
 39. As between mortgagor and mortgagee, the mortga- 
 gee is entitled to an injunction to restrain the mortgagor in 
 possession from cutting timber to the injury of the secu- 
 rity («). But in modern times, to obtain such an injunc- 
 tion, it must be sworn that the land is a scanty security 
 without the timber (6). But although a mortgagor, who is 
 a bankrupt, will be restrained from cutting underwood, yet 
 bankruptcy is the only ground for such an injunction, and 
 it will not be granted because the mortgagor is in prison for 
 debt. But he may be restrained from cutting it contrary 
 to the usual course of husbandry (c). In general, indeed, 
 if a mortgagee will not take possession, it is not waste in 
 the mortgagor to cut underwood at seasonable times ; but 
 where a mortgagor, who had mortgaged timber trees, wood, 
 and underwood, became bankrupt, and cut underwood be- 
 fore assignees were chosen, Lord Chancellor said there was 
 this specialty in it, that the mortgagee had a right to have 
 the estate in that plight in which it was at the date of the 
 bankruptcy, and to prove for the rest of the debt; and 
 granted an injunction on that ground till answer or further 
 order (c?). And even where the mortgagor becomes insol- 
 vent or bankrupt, an injunction will not be granted to re- 
 strain cutting timber, iniless the mortgagee will show that 
 
 (s) Tivort V. Twort, 16 Ves. 128. v. Uvedule, cited ibid, and 3 Atk. 119. 
 
 (a) Humphreijs v. Harrison, 1 Jac. (ft) Hippesley v. Spencer, 5 Mad. 
 
 & W. 581 ; see also Robinson v. Lit- 422. 
 
 ton, 3 Atk. 210; Farrant v. Level, (c) Humphreys v. Harrison, cited 
 
 id. 723; Ihborn v. Usborn, 1 Dick. above. 
 
 75 ; Hopkins v. Monk, ibid.; Uvedale (rf) Hampton v. Hodges, 8 Ves. 105. 
 
 U2
 
 ]f>A BTAYIKO WHOJIGFt'L ACT* [PART II. 
 
 by liuch waste tlic licc'urity will be so reduced uk to become 
 ail inndetjuute i»ccunt) (r). 
 
 Where u parly hui contrucled to tell uii estate to ano- 
 ther, who tuk.(*« |M>«Hcit»ion, the purchaiier in iu equity ttie 
 owner, nnil the vendor nn e(|uilublc inort{5;a'^ee, und though 
 at law thf purchuMT m u trchpaM^-r, yet ««juity will re»train 
 hnn from dcAlructivr wante, huch u« cuttnig limber, 6ic.if). 
 
 A iimrtifiiifer in puiscjisiun will uIhu I>c rcHlmincd from 
 rutting tiinU-r («/t, ilhe do not apply the money anniiig by 
 the sale of the liinU-r in Hinkiii}; the inlere»t und principal 
 (if luH niorti;aj;c. Hut he in not l>ouiid t '!i<- build- 
 
 ings on the mortgaged estiile, after a Ion- , i»n, in lui 
 
 good condition us he found them (/i). But where tliere are 
 (ii'^t and subse(|iifiit inorl'^'agees, and tlw mortj^igor i« in 
 possession ami has aj)poinlcd a receiver, if the lin»t mort- 
 gagees do not claim to take |)osHe»}*ion und receive the 
 rcnU, the receiver will be restrained at the huit of the sub- 
 setjucnt incumbnuicers from paying any of the rents to the 
 mortgagor (i). 
 
 -10. It seems to How from the very nature of tin- iIuIh?, 
 of express trustees that they cannot commit waste; und an 
 injunction will also be granted to restrain waste by implied 
 trustees. Thus whore a testator deviled that from his 
 death until his daughter attained twenty-one, or marrietl 
 with consent of her mother, the mother should receive all 
 the rents and profits of certain lands, with directions to 
 pay 300/. per annum to the daughter, and to take *JO0/. 
 for hci"self ; the mother was restrained from cutting down 
 timber growing among underwood, although on a sugges- 
 tion that it would not improve. 
 
 41. There has been much discussion whether a bill for 
 
 (<) Cox T. GocdfelU'ti:, 8 Vcs. 105, ig) Farrant v. Iyop<l, 3 Aik. 723. 
 
 n. 84. Ci) R'om/v. Smithies, I .Anil. 96. 
 
 (/) Crotkford V. Altiander, 15 (i) Dtlmer f. Dathmood, 2 Co«, 
 
 Vcs. 138. 378.
 
 CIIAF. I.] OF A SPECIAL NATURE. 165 
 
 an account of waste merely, will lie without an injunction. 
 In a case arising upon waste in copyhold lands by opening- 
 new mines, it was held that where there is no custom of 
 the manor that the tenant may dig and open new mines, 
 neither the tenant without the licence of the lord, nor the 
 lord without the consent of the tenant, may open new mines. 
 And that if the copyhold tenant, where there is no such 
 custom, opens new mines and digs great quantities of ore 
 and dies, the Court will hold his executors liable to ac- 
 count for the ore dug up {k). The Lord Chancellor in that 
 case seems to have thought that a bill for an account 
 merely, would lie for waste in cutting timber. For his 
 Lordship, admitting that as to waste by breaking up mea- 
 dow or ancient pasture, the remedy died with the person, 
 distinguished as to ore or timber, saying, " it would be 
 a reproach to equity to say where a man has taken my 
 jiropei'ty, as my ore or timber, and disposed of it in his 
 lifetime and dies, that in this case I must be without re- 
 medy." The application of this principle seems, however, 
 on the result of the authorities, not to go beyond the case 
 of mines, at least wherever there is a remedy at law. In 
 Jesus College v. Bloom (/) Lord Hardwicke spoke with 
 disapprobation of the foregoing case, so far as regarded 
 the doctrine in reference to cutting timber ; and he puts 
 the decision in it as being on the ground that it was a case 
 on mines. " The Court," he said, " always distinguishes 
 between digging mines and cutting timber, because the 
 digging of mines is a species of trade." It is clear however, 
 from the language used by the Lord Chancellor in the case 
 in P. Williams, that he put his decision, not on the ground 
 of its being a case of mines, but on the ground of there 
 being a perception of i\\e property and the wrong-doer dead, 
 as distinguished from waste of the nature of a mere tort. 
 In Jesus College v. Bloom the bill was for an account 
 simply, without praying an injunction, and on that ground 
 
 (k) Bishop of Winchester v.Knighi, (I) 3 Atk. 262 ; Arab. 54. 
 
 1 P. Wms. 406.
 
 \f>C\ ATAYt!(R WROJCGPl'L ACTS [PART Jl. 
 
 cxprc«nly, Q» it in it-|K»rl«-«i in Ambler, hi« Lordiship di»- 
 iitiHi»((l ilic hill. And to the re|>ort in Atkyn, 
 
 ht ' ' ' I .. . ... i,^ nlicthcr lulls 
 
 J. , : ictioii for tiiiilx'r 
 
 rill down after the tutatc oi the tenant tluit cut it down i« 
 <lrternnn»«|, In ' ' * ving 
 
 an iiijiiitrtKin, 
 
 III (ictrlh V. Cotton Lonl HnrUwicke ban been thought, 
 il \^ tnn , ' II the nii(lir>ri(y i<f Ihh own fl' i 
 
 Jisu^ i ,>ih l>i'>nm{m) ; hut hm I/>r(|Khip, u 
 
 Hcncd by Lord Hrou^ihsim in Parrott v. Pnhntr (n), <\oc* 
 iiol oviTtliiow itH doctrine, hccaii«c he tak'--' ihf diHti»i< ii"ii 
 that in ihc one ease {Jesus Cullegr v, Jiloum; there was a 
 lepal remedy, and in the other no remedy. In Whiljirtd r. 
 7/r»ri7/ (o), where it wns held that if a tenant for life, not 
 dispunishable of waste, cut timber, it belongs to the owner 
 of the inheritance; an account of timln-r cut without any 
 injunction being prayed for, was granted to tlic remainder- 
 man against the tenant for life : but in that case an injunc- 
 tion was pniyed against opening mines. So that, as ol>- 
 servc<l by Lord Ilaitlwicke in d'nrtfi v. Cotton, and by Ixird 
 I^ron'_dmin in Parrott v. Pahicr, this case dcKS not con- 
 tradict Jvsvs ('()llc(/c V. liloom, as the Court sccmH to have 
 given the account as incident to discovery, because it 
 would be inij)ossibIe for him to discover the %alue of the 
 timlj<r. Moreover, it is clear that there was nothing in 
 this case which, of its own nature, would have prevented 
 an injunction from being grantal)le, and it was owing to 
 the collateral circumstances of the timber l>eing actually 
 cut that it could not be asked for or granted. In the 
 latest case in which this doctrine was discusse<l, Lord 
 Biougham,C.,r»'';'' -I — •^•jy reviewing the authoritiesf/?), 
 
 (/) 3 Atk. 262. (/,) Jnu$ College r. Bloom. 3 Alk. 
 
 (m) Sec 3 Atk. 756, third objcc- 262 ; UhiiJitlJ x. Drtriit,2 P. U mt. 
 
 •ion. 240; Sayer t. Pifrcf. I ^'e*. ten. 
 
 (») 3 .My. ic K. 641. 232 ; Cart* ». C^Um, Dick. 183. 
 (o) 2 P. Wms. 240.
 
 CHAP. I.] OF A SPECIAL NATURE. 167 
 
 lays it down, that in waste, although as to timber there 
 exists considerable discrepancy, yet the sound rule is, to 
 make account the incident and not the principal, where 
 there is a remedy at law ; but that mines are to be other- 
 wise considered, and that as to them the party may have 
 an account, even in cases where no injunction will lie (7). 
 
 The doctrine resulting from all the cases seems to be 
 that, 1, As to timber, where there is a remedy at law, ac- 
 count must be the incident and not the principal {r) ; but 
 where the waste is purely equitable, viz., of such a nature 
 that under no state of circumstances could a remedy at law 
 be had, a bill will lie for an account merely, as against the 
 personal representatives of the tenant for life who has 
 committed such equitable waste (s). 2. That as to mines, 
 a bill for an account will lie, without reference to whether 
 there is or is not a remedy at law {t): Perhaps a distinc- 
 tion exists that where the plaintiff has not such a case 
 as would of itself form ground for the interposition of 
 equity by injunction, he cannot have account alone ; but 
 where he might have an injunction from the nature of the 
 case, and is only deprived of it by reason of some acci- 
 dental collateral circumstances, there he may have ac- 
 count (tt). 
 
 It is proper to observe on the subject of account, that 
 where in the case of mines there is a dispute as to whether 
 the mines under a certain close belong to A. or B., and an 
 
 (5) 3 Myl. & K. 632 , uirfep. 642. to have afiected the determination, 
 
 ()■) Per Lord Brougham, 3 Myl.& which the Court put on the broad 
 
 & K. 642 ; et vide 9 Ves. 346. ground, that where equitable waste has 
 
 (s) Garth v. Cotton ; Marquis of been committed, which never could 
 
 Lansdowne v. Marcliioness of Lans- have been authorized, the Court has 
 
 downe, 1 Mad. 116. It is to be ob- jurisdiction to make the representative 
 
 served that in the last case referred of the party committing such waste 
 
 to, an injunction had been obtained accountable. 
 
 against the tenant for life who died (t) See the cases cited above. 
 
 pending an application to dissolve it. (») Bailey v. Taylor, 1 Russ. & 
 
 But this circumstance does not seem iMyl. 73.
 
 168 ^TAM^G WHOSGFl'L ACTb [I'AllT II- 
 
 injunction has Ix-cn ^T™"^*"** *" restrain B. from working, 
 und is iiritr\\ur(l» tlisMjlvcd on B.'h unilerlukin;^ for liiuih^cK 
 and liiH leHHc<>M tliut u true account hliull be kept ; thut 
 uccounl ou'^lil ti) 1m' kept, HO UH ileurly to (listingui!*li the 
 n»uu* 140I (roiii uimIit the tlo*«-' in (|U(-iition, from that got 
 fron» any ailjoinin}; minrn belongini; to IJ. ; unil therefore, 
 if a vt rchi I is found for A., an«l it is inipoHhihU- to dintin- 
 •^'uinh the nunc y;«jl from under ihi- disj)ul«d t lose from tlial 
 wUhU has l>een (;ot from adjoining; workingn, li. muht he 
 chargt'd with tin* whoh', except «h.it \\r can piovc to have 
 
 colli" fi'iin iillii I iiiliif- ( vV 
 
 4'2. An iiijuiiciioii wdl Im- ur.mtrd at the huit of a copy- 
 hoUler to Mstrain the h>rd of the man(»r Irom o|)oning u mine 
 oil the pUiiiililf's co|)yhohl land ; and where the riqhl of the 
 hjrd i.s dtmblful, fioiu cuttin«; timber; as the question whe- 
 llicr the lord can, without a special custom, o|Kn a mine, 
 ou<;ht to be tried at law, and the Court interferes to pre- 
 vent irreparable mischief in the meantime (:). There is a 
 distinction, however, between opening' amine, and working 
 one already opened (a). Hut in such cases the injunction 
 will imlv be ujihLld uii the uiiderslandini; that the right 
 will be speeilily trinl at law A). And a lord of a manor 
 may have an injunction against the tenants of the copy- 
 hold lands, to restrain them from committing waste. This 
 was denied in a case of Dcuc/i v. Bampton (c), but that 
 case has been overruled by Lord Illdun in Richards v. 
 Noble (d) ; and the doctrine of the latter case is con- 
 firmed by a very late decision (r). liut if the lord has 
 been guiltv of laches, as where the bill is to restrain the 
 
 (y) Lupt.m V. While, 15 Ves. 432. 208. 
 
 (t) Crrt/ V. Duke of Sorthitmber- (6) Grey t. Dukt of KorlkuwJur 
 
 Lnd, 13 Ves. 236; Whitechurch v. {aixi, 17 Vcs. 281. 
 
 lloltcorihu, 19 Ves. 213; Players. (c) 4 Ves. 700. 
 
 Jonei, Sir \V. Jones. 241. (d) 3 Mer.G73. 
 
 (fl) Grey V. Ditke of yorlhtimber- (e) Parrott v. Palmer, 3 My.it K. 
 
 land, 13 Ves. 236; ami sec 1 Swans. 632.
 
 CHAP. I.] OF A SPECIAL NATURE. 169 
 
 working- of mines, and the lord has stood by and allowed 
 the tenants to work the mines for a long time, equity 
 will not interfere in his favor by injunction (/). 
 
 43. A parson may not commit waste, nor open mines 
 on the glebe lands ; and a case is mentioned of a bishop 
 applying to parliament for leave to open mines, and being 
 refused (g) ; but a parson may work mines already opened. 
 So he may fell timber, or dig stone to repair, and may sell 
 the timber or stone, where the money is applied in re- 
 pairs (A). This doctrine, as to cutting timber or digging 
 stone by ecclesiastical corporations, has been approved in 
 subsequent cases (i). 
 
 In the case of Wither v. Dean and Chapter of IViU' 
 Chester (k), the Dean and Chapter were lessors of the 
 plaintiff', and the lease contained a reservation of timber to 
 the lessors, who covenanted not to take timber on certain 
 parts, except for the necessary repairs of Winchester Ca- 
 thedral. The lessors were about to cut timber, and on a 
 motion to dissolve an injunction obtained ex parte, the 
 question appears to have been whether they could cut for 
 the purpose of selling to defray the expense of repairs; or 
 whether they could be restrained by the lessees from cut" 
 ting, except in so far as they required to apply the actual 
 timber cut, in repairs. They stated by their answer, that 
 the whole of the timber would be less than sufficient for 
 the necessary repairs of the church. Lord Eldon held, 
 that independently of the covenant, the lessees were 
 strangers as regarded the right of their lessors to cut tim- 
 ber; and that the covenant did not alter the situation of 
 the parties as to the right intended to be reserved by it. 
 And as the lessors would not have been bound, indepen- 
 dently of the covenant, to apply the specific timber cut in 
 
 (/) Parrott v. Palmer, 3 My. & K. (/t) Knight v. Moseley, Amb. 176. 
 
 632. (0 Wither v. Dean and Chapter of 
 
 (g) Talbot's case, cited by the Lord Winchester, 3 Mer. 421. 
 
 Chancellor in Knight v. Moseley, (k) 3 Mer. 421. 
 Amb. 176.
 
 1"'^ HTATIKC WBON'GPCL ACTfi [PART 11. 
 
 r«imirs, tl: at ko bound by tbc covenant. And bii> 
 
 Hut an ec< .ition i-nnimt cut tiinl>cr, 
 
 cxcc|)t fur tijc |iur|>uiM< oj : 'vinj; the cx- 
 
 |icnw of repairing thr ^ '• •,: i. lii.i.i'.rr, where the 
 
 plnintinH cluunedyUK tl»< f crrtaui \v(mkIh held tuider 
 
 an (Hrciesiuiitical corpomtion, ti {jcneml ripht to cut tinil>er, 
 nl! •' • '; rii;ht p:i«Red to thcni by the tmri^ <>f 
 
 l! ( t Iwld, timl on the authority of J#//r r- 
 
 son V. Itishoji of Durham (Ij, and Wither v. Dran and 
 Chnptir of Wiiichrstrr hii), the IcsHors hnd thenifudvcH no 
 powrr to rut tiiiibtr, fxcept for the pur|>OHo of the repairs 
 uf the church, aiul tlurcfore they could not pmnl hucH to 
 the lessees (n). liy the IcaHC the uf>(»*Is wrre denii'-''i, 
 reserving to the lessors, at every full of such \voodi«, cc rlain 
 standells or stours, (whiclj, it appears, means young tree* 
 left standiii':, in order to become tinil)er^. 
 
 On the construction of the lease, the Court held that it 
 did not import the conveyance to the lessees of any geno- 
 nd right of culling tiudjer, such as they claimed ; and 
 further, that if the lessors had affected to transfer sucli a 
 ri"j;ht, or, in other words, if on the true constniction of ihe 
 lease, such a right, supposing it to exist in the lessors, would 
 have passed to the lessees, yet the lessors not having it, 
 the lease, if intended to give such a right, wouM l>c a 
 direct violation of the law, and, therefore, not such a trans- 
 action, as a Court of equity would carry into efTect. On 
 these grounds the Court dismissed with costs a bill fded 
 by the lessees for an account of timber cut, and for an 
 injunction (o). 
 
 Again, in an old case (//, the lessee of a bishop was re- 
 sti-ained until the hearing of the cause from cutting tim- 
 ber, except for necessary repairs of the manor house, which 
 
 (0 1 Dos. & Pul. 105. (o) Ibid. 
 
 (to) CileJ onJ*. 169. (n) BUhop <>{ WinrknUr y. \S\l- 
 
 (u) Herring v. Dtiin and Chapttr gar, 3 SwiUi. 493, nNii. 
 o/ St. Paul, 3 Swaas. 492.
 
 CHAP. I.] OF A SPECIAL NATURE. 171 
 
 it appeared was in danger of going to ruin. And in another 
 case (q), a prebendary was restrained from cutting timber 
 on his prebend, by a writ of prohibition. In that case, 
 however, it seems that the Court would have permitted 
 him to cut enough timber for the repairs of the house. 
 
 So a rector will be restrained, at the suit of the patron, 
 from cutting down timber in the churchyard, except for 
 the repairs of the parsonage house or the church, or for 
 repairing old pews which belong to the rectory ; although 
 he is not bound, as appears by the cases which I have 
 cited, to apply the identical timber to the repairs, but may 
 sell it, provided the money is apphed in the repairs (r). 
 
 In the case last referred to, Lord Hardwicke also laid 
 it down, that he is entitled to botes for repairing barns and 
 outhouses belonging to the parsonage. And if it is the 
 custom of the country, he may cut down underwood for 
 any purpose; but if he grub it up, it is waste. 
 
 The tenants of ecclesiastical corporations are, as to the 
 right of such corporations of committing waste, strangers, 
 unless by virtue of special covenants, and cannot inter- 
 fere to restrain them from waste ; that can only be done 
 as against a bishop by prohibition, or by injunction, at 
 the suit of the crown ; and as against a rector, by the pa- 
 tron is). 
 
 And although the fee simple is in abeyance during the 
 vacancy of a rectory, yet the patroness has a sufficient 
 interest to support an injunction to restrain the widow of 
 the late rector from committing waste {t). 
 
 The tenant for years of a bishop sans waste will be 
 restrained from digging away the soil for bricks to the ex- 
 tent of destruction iiC). 
 
 (q) Ackland v. Attwell, 3 Swans. (f) Hoskins v. Featherstone , 2 Br. 
 
 499, notis. C. C. 552. 
 
 (r) Strachy\. Frances, 2 Atk.217 ; (n) Bishop of London v. Webb, 1 
 
 seealsoBrad/e.i/v..S7rac7iv, Barn. 399. P. Wms. 527; and see Bishop of 
 
 (s) 3 Mer, 427 ; Jefferson v. Bishop Winchester's case, cited 2 Freem. 55, 
 
 of Durham, 1 Bos. & Pul. 105; as to cutting trees by the tenant of a 
 
 Knight V. Moseley, Arab. 176. bishop.
 
 17J tTAYIKG WROXQFia ACTK [I'AHT II. 
 
 44. Tlicrr ittrm* coii*iderublc t;rouiul for il<ulil «hin 
 tin injuiicliuii Mill U- ^ruiittHl U|;uiiiiit prrmmivc wuhtc. 
 A «uhc- of liiUu-ell V. liotflU{x) lm» Ux-n Ucukd by a 
 Irunuxl wnicr on tliu i.ubj«cl (if), and liai» bctii rvfcrtfd lo 
 in otlirr iKMtkk, uM an oulhunly ihal nn injunction will In* 
 gnintttl to rrHtrain j>crnu**ivc a» well tt» voluntary wnhtr. 
 The cn*o, howcvrr, tio« nol •cexu fully lo w arrant mj 
 (liculcil u concluHion. Tlic ilcfcndunt in CaUhccU v. Jitiy- 
 list took nndt-r u dr\iM' to him for lifr, " lie krt|iing tlio 
 intercut of i certain inortj;nj4r charged on the |)rrniiiic« 
 \niu\, anil krrpiiiff thr biiiUitirfs in Irminlahlr rcjHiir,anti 
 not J't/lini/ anij timhcr, except for rrpairt." 
 
 He Hullercd the buildingn tot;o lo decay, notwithiitanding 
 ro|x'atetl reinoiirtlninces on the |uirt of the |»luinli(1\ who 
 cluinicd as remainder-man uiuler the same dovifMr. It dt»cji 
 not appear by the re|)ort on what ground the injunction 
 was grunted. It mipht well have been ^aiintcd on the 
 special ground of the proviso in the will, and the decision 
 does not of necessity artord any inference in favor of the 
 general doctrine, that, without a gfK«cific obligation on the 
 tenant for life, he would be rc>«trained from permitting 
 wiuitc. It should be observed also, that the authority of this 
 case on a doubtful |)oint, is much weakened by the circum- 
 stance that the injunction was '^'ranted ex parte. 
 
 In an earlier case, before Lord Ilardwickc (.j), a decision 
 was made, bearing more directly on the |>oint. In that 
 case exceptions bcint; taken in a cause to the Master's 
 report, that he had charged the tenant for life without iin- 
 jx^achnicnt of waste, with several sums for repairs of 
 tenant's houses upon the estate, the Lord Chancellor over- 
 ruled the exception, saying, that " notwithstanding tenant 
 for life is without im|x;achmcnt of waste, he shall be 
 obliged to keep tenant's houses in rej)air, unless the charge 
 is excessive, and shall not sufTer them to run to decay." 
 
 (i) 2 .Mer. 408. (s> ParUricht v. I'omlrt, 2 Atk. 
 
 (y) F.ilcn on Injuoctions, 160. 383.
 
 CHAP, I.] OF A SPECIAL NATURE. 173 
 
 But in a later case, decided in Michaelmas term, 1773(a), 
 where the tenant for life cut timber, and suffered some of 
 the houses to go out of repair ; as to the timber, the Court 
 held that an injunction might have been granted ; but as 
 to the repairs, the Lord Chancellor refused to interfere, 
 saying, " the Court never interferes in case of permissive 
 waste, either to prohibit or give satisfaction, as it does in 
 wilful waste." 
 
 In Turner v. Buck (b), a bill was brought against the 
 executors of a jointress for satisfaction out of assets for per- 
 missive waste, and Cowper, C, refused to interfere, " for 
 here," said his Lordship, " is no covenant that the jointress 
 shall keep the jointure in good repair, and in the common 
 case, without some particular circumstances, there is no 
 remedy in law or equity for permissive waste after the 
 death of the par^ice^Zar tenant." 
 
 Again, in a case in Ambler (c), where a bill was filed by 
 a remainder-man against tenant for life to have, among 
 other things, a decree for repairs of a brewhouse, part of the 
 devised premises, the Court said, " that as there was no 
 precedent, it would not make one." 
 
 In a late case the question arose, whether a decree for 
 an account of dilapidations permitted in and about the 
 mansion-house by tenant for life could be made. And Sir 
 J. Leach, M. R., expressed himself satisfied that no such 
 account could be decreed, observing that with respect to 
 incumbents the law was otherwise, and accordingly suits 
 against their representatives were very common ; but no 
 instances of such suits by remainder-men had occurred {d). 
 
 In that case it was urged that the account ought to be 
 granted on the doctrine laid down by the Court in Lord 
 Ormond v. Kinnersley{e), that an account of equitable 
 
 (o) Lord Castlemain v. Lord Cra- (d) Marquis of Lansdown v. MaV' 
 
 ven, 22 Vin. Abr. 523, s. 1 1. chioness Dowager of Laiisdmvii, 1 Jac. 
 
 (6) 22 Vin. Abr. tit. Waste, 523, & W, 522. 
 s. 9. (e) 5 Mad. 369. 
 
 (c) Wood V. Caynon, Amb. 395.
 
 171 STAYING WBOMOPl'L ACTS [PAST 11. 
 
 wa«(o luighl be ilnf<"< • • •!" vriuciplc uf coiii»iJeriug the 
 
 tciiuul tur liio uj» 1. ( to uit implied tru*t to 
 
 CAvrviAc hu tl^hta Mithuut lujury Ut Uic ivmumdcr-uiuu, 
 
 ttiul tliiit thu |iniK-i{ ! ' ■ ' • ^^ ' ' 
 
 vuluiitury \%ii»lc. 1' 
 
 uf Lord OnHonde v. htuHcrttty, bi* llutiur ihc V ice- 
 
 ('! " , ' ' „ -' • . • , - " - • 
 
 l>v 
 
 tho riKhl ui the rcuuiiiulcr-uiuii to iut uccounl uf »ucb wajitc 
 
 tt|{Uiiii»t thu i'\i-cutoin of ihi- ti-icitit fur hfc. 'I' 
 
 thiTi- hiul (h»\M) wuiiUi iiu ihiuht be ua u|i|'. i 
 
 (|uc«tiuii bclMTccn the exccuiont of tcitaiit fur hlc uJiil rv* 
 
 inaiiulor-iiiuti in a cum: of |>crlui^Hivc' um uf voluiitaiy uaiUc, 
 
 if the tLtiaiit fur lifu hiiuiic'lf m hublc Wjx |M;riiiii>tiivc waiiLc; 
 
 but it duc8 nut tuuch the que«tiou whetlier he u ur it not. 
 
 *to. ThcKo urc nil the cases of which I aiu u.^.... , ..i 
 which the liubject of )>ertuit»ttivc wa«tc hait beeit dii»cufei»c(l. 
 And while only two arc to Ije found in which the exact 
 |)uinl occurred (y*), and tho6c arc in direct o{>|M;i«iliou to 
 each c>tlu>r, it in not possible to Miy that cither (i|>iiiiun can 
 be contidcnlly relied upon. The |ire|K)ndcrancc of autho- 
 rity collaterally btarint; on the subj. ' t. in 
 favour of the )>cisiliun, thai a^aiitt>t j >iM- 
 pliciUr by a tenant for life or for years, not atlccled by 
 any express agreement or proviso, cijuity will not interfere 
 by injunction; and that at any rate no account of |)erinit»- 
 sivc w aste w ill be given against the representatives of such 
 tenants. 
 
 46. It may be further urged in favour of this opinion, 
 that although from what is stitled by Lord Coke (^r), his 
 oj)inioii ap|>cars to have been that at law there was an ac- 
 tion for permissive waste, and although that opinion is 
 staled as law by Mr. Serjeant Williams in his notes to 
 
 (J) Parleriche ?. Pi'if/*», aod I.ord (g) Co. LiU. 53 a. 
 
 f.jll/^nvji" V J -.^ ti i'y.itfn, .iTil/.
 
 CHAP. I.] OF A SPECIAL NATURE. l75 
 
 Saunders (Ji), yet that doctrine is shaken, to say the least, 
 by later cases. In Gibson v. Cole (^) it was determined 
 that no action could be maintained against tenant from 
 year to year for permissive waste only. And in Home v. 
 JBenboiv (k) it was held that action on the case would not 
 lie against tenant for years who has not covenanted to re- 
 pair. If then there is no remedy at law for permissive 
 waste, or even if the existence of that remedy be merely 
 doubtful, it must be difficult to sliow upon principle that 
 equity would interfere ; since it has been repeatedly laid 
 down by the Courts of equity (Z), that in injuries to pro- 
 perty of the nature of waste, equity proceeds on the as- 
 sumption that there is a legal right, and acts only as ancil- 
 lary to that right. The ground of the interference of 
 equity in such cases is not the non-existence of any remedy 
 at all at law, but the circumstance that the remedy at law 
 is inadequate or inconvenient. Upon principle, therefore, 
 it may be questioned, whether, if from the nature of the 
 subject, it is doubtful whether an action can be brought, 
 equity would hold the legal right to have such an existence 
 as to call for its interference to protect it. It is also to be 
 observed, that an injunction against permissive waste 
 would be in effect an injunction to do a substantive act, 
 which, it will be shown {m) in a subsequent part of these 
 sheets, cannot be granted directly. Whether the doctrine 
 of the cases {n) on orders to refrain from leaving a thing 
 undone, would be applied to permissive waste, must, in the 
 absence of any decision or even dictum, be a question of 
 very great doubt. 
 
 An account of equitable waste will, however, be granted 
 against the representative of a deceased tenant for life, on 
 the ground that the restraint on the legal owner, as to waste, 
 
 (h) 1 Saun. 323 b, No, 7. parts of this work. 
 
 (0 4 Bos. & Pull. 291. (m) Post, chap. vi. 
 
 (fe) 4 Taunt. 764, n. (b). (n) Robinson v. Lord Byron, 1 Br. 
 
 (l) Bacon v. Jones, 4 My. & Cr. C. C. 588 ; Lane v, Newdigate, 10 
 
 433. This doctrine will be found fre- Ves. 192; Ranhiii v. Huskisson, 4 
 
 quenlly referred to in subsequent Sim. 13.
 
 I7»> sTAYis*: vrnoNoriL ACTS [im.i ii. 
 
 irt to Iv ,1 oil H lircucli of that iru?»t or 
 
 confHl' I ri|>OM-K III the triiaitt lor hfc, 
 
 thut he will ufto hiii hn^nl ckIuIo unly fur the purpose of 
 lair tiijoyiiiiiit ; thut it iii u truAt iiiiplied in (-(|uity from 
 the huhHe<|iiciit liiiiitatioiiit, ami (roiii the preHUiiud iiiteii- 
 tioM of the tc«tutur, thut he meant un c(|ual licMiefit tu all 
 ill HUcceHitioM ; and lliut in all cumk the nhiM-t« of u teK- 
 tutor ure aiihweruh!- (■■<. ■ profit made by a hr- •■ '■ "f 
 truitt (o). 
 
 47. There ure many nct« which are annlogous l-^ ^^.i-i. , 
 n^uiiiht which in|iinclioiiH wilt Ik: ^nintc<i on the Kuinc 
 principle us^ injunctioiiH aguinht wuittc, pro|M.rly ho called. 
 'I'hus ijenemlly an injunction will be j;runted to reHtmin nn 
 executor from receiving the awHcts of his tehtutor, where ii 
 appears ih;it ihcy arc in danger of bein^ woitteti in iii« 
 hands (y<). 
 
 .So a feme cxcculriv will be reKtrained from getting in 
 the assetH of the testator, if her hm^band is abroad, and 
 therefore not amenable to the jiroc* '•s of the ('ourl(<y). 
 hut a woman, udmiiiislnitrix of her husliund, who died in- 
 testate, leaving no childien, will only be restrained as to 
 Iwo-iliinls nf the intestate's jKTsonal estate, as »he is en- 
 titled to one-third for her own use(r). 
 
 On the same principle, of preventing irremediable mis- 
 chief, an injunction was granted in an early case till answer 
 or further order to restrain the negotiation of a promissory 
 note given on a marriage brokage agreement ; the Lortl 
 Chancellor distinguishing this case from an injunction to 
 stay proceedings at law on such a note, which could not be 
 granted till after appearance, except in certain cases ; 
 w hereas the negotiation of the note might be said to be re- 
 strained on the same principle that executors are restrained 
 pendente lite in the ecclesiastical Court, as the plaintilT 
 
 (o) Marqnii of Ormoudtv.Kyiitrt- (q) Taylor r. Allfn, 2 A\k. 213. 
 
 Uy, 5 Mad. 369. (r) noger$ v. Rogtrt, 1 Ao*t. 174. 
 
 (p) Harrison v.CockerftI, 3 Mcr. 1.
 
 CHAP. I.] OF A SPECIAL NATURE. 177 
 
 would be without remedy, if the note were disposed of for 
 valuable consideration without notice (s). 
 
 48. It is now a perfectly settled jurisdiction of equity to 
 restrain a person from interfering with the personal estate 
 of a testator or intestate, pending litigation in the eccle- 
 siastical Courts respecting the grant of probate or of letters 
 of administration. Thus where opposite claims had been 
 set up in the ecclesiastical Court under different wills, and 
 a decision had been made that one will was not sufficiently 
 proved, the Court restrained the defendant from trans- 
 ferring any stock, pending the litigation {t). So in a case 
 where there was great presumption of fraud in obtaining 
 the signature of a testator to an alleged will, the next of 
 kin having instituted a suit in the ecclesiastical Court to 
 recall the probate granted to the alleged executors, a re- 
 ceiver and injunction were granted on an ex parte motion, 
 on affidavit of the truth of the allegations contained in the 
 bill (u). And the point expressly decided in an earlier case 
 of Ball V. Oliver (x) shows., that the principle on which 
 the Court of Chancery interferes to preserve personal pro- 
 perty, pending a litigation in the ecclesiastical Courts, is 
 applicable to cases where probate or administration has 
 been already granted, and the suit is to recall it, as well as 
 as to cases where no probate or administration has been 
 granted. The principles on which the jurisdiction of the 
 Court is founded, and on which its exercise of that juris- 
 diction is regulated, are well explained by the case of Wat- 
 kins V. Brent {y). Two questions arose in that case : one, 
 whether the mere fact of there being a bona fide litigation 
 in the ecclesiastical Court as to the grant of probate, is 
 ground for the Court to interfere by injunction and re- 
 ceiver ; and another, whether, where the executor who 
 
 (s) Smith V. Hnxjtirell, Amb. 66; (u) RidhsrJ'ord v. Diniglas, 1 Sim. 
 
 see S.C. 3 Atk. 566, under tlie name & Stu. 111. 
 o( Smith V. Aykwell. (x) 2 V. & Be. 96. 
 
 (0 Kiv^ V. Kinp:, 6 Vcs. 172. (y) 1 My. & Cr. 97. 
 
 N
 
 17s STAYJXU WIIONGFUl. ACT* [fART II. 
 
 hofl ubtaiiH'd |)rul>ute, Iiuk ugrt-i'tl with Uie plaiulifl' insli- 
 tuting a Huit to rvcuU kucIi prubutc, tliul the validity of the 
 tchtutiK'Htiiry |ui|mt uiultT whuh the cxt-cutor cluiins hhull 
 bu tried III the nuit, ihut m »uch u cuae a» tu iiuiurr the 
 Court to iiilcrlcrc. The firvt qucntion wa« decided in tht* 
 iip^ulive, uiitl the iteeond in tin- iitlirnuitivc. The Court 
 buid, there \%u* iiu douhl but that by the rule u( Court, if 
 the repreiMiitiitiuii i» in conttitt, und no prrMon has been eoM- 
 ili/M/*-*/ rxrrii/or, the Court iiilerfereii, not I 
 
 contest, but l>e«"uui»e there is no |»ni[M r |>ci .. 
 
 the usi«etii. Hut where probate huH been granted, tlie ' 
 iu otherwise; for then there huH l>een un adiiidiciition, und 
 there is a pernon h"i;ully rupubk* of receivjng the a»Mcti«. 
 And then a strong cum;, uh of fitiud or of great danger to 
 the property, pending the htigation, niuf»t be made out to 
 ituhice the Court to interfere. In the prin ' ■ ' 
 
 ihouLih there had been su( h adjuduution, ' 
 of opinion there \va» ground to interfere, because the exe- 
 cutor, bv his a'^Kcineiit to hi his tith* be disputed, had 
 treated himself Uh not complete executor (r). 
 
 49. An injunction will 1 ' n 
 
 executor from selling the pre , , i 
 
 to it as a gift from the testatrix in her life time, and the 
 bill imj>eaches the defendant's title both as executor and 
 as donee, and is supported by allidavits of undue influ- 
 ence (a). 
 
 But an in) unction will not be granted to restrain exe- 
 cutors from parting with any of the as.sets of the testator 
 either to creditors or legatees, at the instance of an annui- 
 tant, for his protection as to future instalments, where 
 there is no arrcar due, and no case made of j)ast misappli- 
 cation, or of jjrobabilily of future misapplication. There is 
 no default in regard to an instalment of an annuity till the 
 day on which it becomes due ; and the day before that, tlie 
 
 (i) \\'atkin$ V. Brent, 1 My. 5u ' • (a) FAmundi v. Bird, 1 Ve». & B 
 
 97. ' r>.
 
 CHAP. I.] OF A SPECIAL NATURE. 179 
 
 executors might lawfully apply the whole of the assets to 
 pay simple contract creditors (&). 
 
 Nor will an injunction be granted at the suit of a judgment 
 creditor against a party who is heir at law and administrator 
 of the debtor, to restrain waste by him, unless there is an 
 affidavit that the debt is in danger of being lost by the 
 acts of waste being permitted (c), and it seems doubtful 
 whether even on such an affidavit the Court would act. 
 
 50. A receiver appointed by the Court will be protected 
 against acts in the nature of waste. Thus where an estate 
 is in the possession of a receiver appointed by the Court, if 
 another person, at the time of the appointment of the re- 
 ceiver, is in the exercise of a right of common over the es- 
 tate, the appointment of the receiver will not interfere with 
 his right. But if he has for several years abandoned the 
 exercise of his alleged right, and then trespasses on the 
 land by sending his cattle thereon, and on his cattle being- 
 impounded, replevies, and persists in the trespass, he will 
 be restrained from turning his cattle on the land or exerci- 
 sing any right of common or disturbing the receiver in his 
 possession, and from continuing the replevin action until 
 further order, with liberty however to go in before the 
 Master to be examined pro interesse suo {d). And in a late 
 case, where a receiver had been appointed, in pursuance of 
 an order of the Court, of the office of master forester of a 
 royal forest, held under letters patent, and A. and B. pos- 
 sessing land in the forest sported there; and it was disputed 
 whether the master forester had the exclusive right of 
 sporting, or whether A. and B. had not on the contrary 
 rights of freewarren and to kill game ; Sir L. Shadwell, 
 V. C. granted an injunction for restraining A. and B. from 
 sporting in the forest, putting the parties on terms to pro- 
 
 (6) Read v. Blunt, 5 Sim. 567; a rece/uer over an heir at law, Clarke 
 
 see also Hawkins v. Day, Amb. 160. v. Dew, 1 Pvuss. & Myl. 103. 
 
 (c) Leake v. Beckett, 1 Y. & Jeiv. (d) Jones v. Ciaughtoti, Jac. 573. 
 
 339 ; and see a case ns to appointing 
 
 n2
 
 I'^U bTAYISU WHU.XUFl L Ai'Th. [PAIil 11. 
 
 nt<| at law witlitiut ilrlay to try whetlur the fortst «us a 
 luyal lorrni tiiui iliuitr, aiul whellicr A, uiul H. wi-ri- tntiilcd 
 tu frerwurrfii und to kill giuue ; and the order mu« uliiriued 
 l>y Hruu^lium, C. (r). 
 
 61. A« bclMTCtn iwrtncman injunctiuii Mrill u\*o l>e {^runted 
 tu n-Htnuii ucLm in tlir iiuturc of wantr. TIiuk u hur\iviiig 
 {lartiiL-r Iiuk U'l-n rp^truiiiril f rum (liK|>oi>in^ uf llu- juiiil hluck 
 of tilt! |>arti)(*r»lii|) u|x)ii a ciijmc uf danger Ix'iti^ made by 
 the alliiluMt ; iih fur iiiHtaiicr, wlit-rc tlir niirviviii^ parliicr 
 waM in |>riHun fur debt, and had refused tu account und come 
 tu a filial settlement, and the plaintiir HWure to Ihh infonim- 
 tiuii and belief that he wws e\|>en(liii;; the joint Htuck m the 
 niaiiitcnaiico o\ hiiiiHelf and family ' /'). Hut in n ca»c in 
 the I-lxclie(juer, where twu parlnerb aj^rred to dissolve, und 
 that one (the defendant), on paying hulf the %uluc of the 
 etlect}*, should take posM-ssion of the whole, it waK held no 
 waste in hiiu to t;ike |>us.sessiun of iwime land and buildings, 
 part uf the partncnihip property, ond to commence pulling 
 down the buildings (^). The (' ' ' *' ' iiiitiff could 
 only have an account uf the | h-^h fur tlie 
 
 pur|K)Sc of ascertaining what was due to him under llic 
 ngrecmcnt for a dissolution. 
 
 ')2. In lit eve V. Parkins (h), an injunction was granted ex 
 jutrtc to rcstniiii the treasurer of a friendly scHMcty from 
 applying any of the funds tu the payment of the annuities 
 payable according to the rules, and from Felling out the 
 stork ; the affidavits filed in supj)urt of the bill showing 
 that tlie rules were framed on erroneous principles, and 
 that in consequence, the annuities chargeable upon the 
 funds had become so numerous as to be likely to exhau<^t 
 the whole. 
 
 An ex parte injunction will Ix; granted to restrain the in- 
 
 (#■) Blanchardv. Cavlhornt, 6 Sim. (g) Ccflon t. Horner, 5 Price, 637. 
 
 156. (A) 2 Jacob & W.390i «ikI Me 
 
 (/> llartx^. Schroder, 8 Vc*. 317. PrtiTtt v. Pip<r, 17 Ve*. I.
 
 CHAP. I.] OF A SPECIAL NATURE. 181 
 
 stallation of a presentee, where the presentation purports to 
 have been made in pursuance of the directions of a will, and 
 a question is shown on the face of the will whether the 
 presentee comes within the terms of it(i). In the same 
 case it was established, that the Court is not bound to 
 sustain till the hearing an injunction granted on a prima 
 facie case, because there is doubt which way the Court 
 may decide. It is entirely matter of discretion in the Court 
 whether on the coming in of the answer or affidavits, it 
 will sustain the injunction or not. 
 
 53. And here it may be observed that as equity interferes 
 to protect parties in the enjoyment of a specific chattel when 
 the right is clear (A), so it will interfere by injunction to 
 restrain the disposition of specific chattels, where the right 
 is in dispute. As where a wife, having separate estate, 
 purchased out of it, of her husband, certain specific chat- 
 tels, such as books, paintings, statues, &c., in the names of 
 trustees to her separate use; and a question arising be- 
 tween the creditors of the husband and the wife, and a ver- 
 dict having been obtained by the former, the sheriff seized 
 the specific chattels ; Lord Eldon, pending further proceed- 
 ings at law to try the validity of the deed of sale, sustained 
 on terms, an injunction against the sheriff's selling the spe- 
 cific chattels (/). 
 
 54. In former times Courts of equity seem to have felt 
 considerable difficulty in applying the doctrine of relief by 
 injunction to cases of trespass. Thus in an early case an 
 injunction was refused to restrain a party from pulling 
 down a wall inclosing the plaintiff's ground, and from 
 building on the ground so near plaintiff's house as to im- 
 pede his lights, because the defendant asserted a title to 
 the wall and ground. Lord Chancellor saying, this would 
 
 (j) Potter V. Chapman, Amh. 98. (/) Lady Anindel v. Phipps, 10 
 
 (/c) Felh V. Read, 3 Ves, 70 ; Lloyd Ves. 1 39. 
 V. Loaring, 6 Ves. 773.
 
 182 HTAYIXi* WHOXiiFl I A«-rii [PART II. 
 
 t' the n}»lit oil luuiiuii (fN>. Ai 
 
 l>< I lurluH, nlicrr u |«ci»un, wliu i 
 
 B^ciit of anullier. had an authority to dig ttaitJi in a 
 
 bi It uat held that cuiiiuiiiiiiv tu tli^; tin> 
 
 IM. ... I iK'clk rr* I'll" •! !ii « .i-> .1 Mi- f •• "ll .ilj •" I 
 
 pUMMcr, and tlo ^ iiijunc- 
 
 tiuii(N). And lit Mi-ita ^- -^'^^y i*'> t^**- 
 judgv rchi»cd tu rnjoin a |Mirty havinir ■' 
 iM'ing a more trrnpaMcr ; »4i in anulhrt 
 Tliurlow (/i), liin I^)rd»lu|> lu-ld lliat iii a (uk4 «,l i 
 
 of u ri^lil, llif Court cuniiot iiilrrfrrr by iiijuiui ■..1 
 
 (lie Icgul ti^lit baa been cKlubbftbed. But it wuh eailv 
 hfld tbut when n {>nrty han a rii^ht t 
 
 (|tii*Htioimbl(! whethir he huM nut rarrx ■. ..^ 
 
 nij unction may |)ro|)crly Im- {;rantitl to niav huii |i 
 
 nil irreparublc act until the n^lit ih .• 1. liiii* nun 
 
 citcidrd in u cuim: belorc Loid Can • »' • 
 
 MiHf(j], wlicrt* tlic lonl of u manor < 
 
 to stay wutitc ngttini*t tcnuntA who had u n{;ht to cut c»- 
 
 tovcn», and under colour of that right cut f' - . 
 
 (|uuntity of timber. So, althdugh in the eui 
 injunction vivl& held not obtainable ngatiut a mere trah> 
 passer, it would be granted if i! " ' * 
 
 the trespasser and u tenant liahi' i 
 
 trine \va.s aUo acted u|>on in a later case (r), where a tenant 
 colluded with a stran<^Mr, suHeting him to ■ flie land. 
 
 And as a party not liable originally t ;'d by in- 
 
 junction may, by collusion with one who would be liable, 
 lose his exemption, so a party who would onginaM 
 right to come for an injunction, may lose it by - 
 with one who has none. Thus in a caae where the tenant 
 
 (m) Batemmit v. Jekmton, Filigib. App. 572. 
 106 i 3 Geo. a. Mich. Tenn. (y> //jw 
 
 (n) MoriiM«r V. CotiTtU. -2 Cn. \ . ». ."1 i.. 
 205. M«;./<Wni, IOVe» 
 
 (o) Dick. 670. 
 
 (p) WtlUr^. Smeaien, 1 Hr. i
 
 CHAP. I.] OF A SPECIAL NATURE. 183 
 
 for life had made a lease of coal mines, and then jointly 
 with the remainder-man filed a bill, and moved to restrain 
 the lessee from taking coal, alleging that the lease was 
 made by mistake and was a forfeiture of the life estate ; 
 Lord Chancellor said, he could not hear a party coming 
 to disaffirm his own lease, and that it was collusion to bring 
 forward the remainder-man. If he, the remainder-man, com- 
 plained, he must file his bill alone (s). 
 
 55. A distinction was also made at an early period in the 
 case of mines. Thus, in the case of Gibson v. Smith (t), 
 an injunction was granted to restrain a party from commit- 
 ing waste by opening mines, although he claimed a right 
 to do it. And a rather singular case is to be found in 
 Ridgeway (%), in which an injunction was granted before 
 answer to restrain a person who was merely the servant of 
 the plaintiflT, having no interest, from committing waste by 
 carrying off the utensils and materials of a manufactory 
 confided to his care ; but it was said, that if he had had 
 an interest, the injunction would not be granted before 
 answer. It seems very difficult to reconcile this case with 
 the authorities on the subject of waste or trespass in the 
 nature of waste ; as there was no privity to n)ake it waste, 
 and no destruction to make it trespass in the nature of 
 destructive waste. Probably circumstances of importance 
 are omitted in the report. 
 
 56. Notwithstanding his own previous decisions, Lord 
 Thurlow however at length, in Flamang's case{x), extended 
 by his reasoning the doctrine of injunctions in certain cases 
 of trespass ; and may be said to have laid the foundation of 
 the modern doctrine on the subject. Flamang's case was 
 this : the plaintiff, who was the proprietor of two adjoining 
 
 (s) Wentworth v. Turner, 3 Yes. 3. 252. 
 
 (0 2 Atk. 182. (i) Vide 7 Ves. 308 ; and 6 Ves. 
 
 (u) Lord Orrery v. Newton, Ridg. 147.
 
 1H4 KT.WMU WHONUri'L ACT* [I'AHT II. 
 
 cltMCK, under which were niinc«, d< c of ihem tu the 
 
 defituitint, who • ' mine ui in' « i.^i dni: ' • luni, 
 
 lUlll du;^ ullMJ ill : : cloM?, whlch WUK ii. iliH. 
 
 I^ord Thurlow, alter much heititittion, granted on injunction 
 an to »>oth t! ' V ' ' ' r « •' - 
 
 |»erty a* a u 
 thirdly, on the pnncipte or rf|uity enj(Mmn); in matters of 
 
 trrH|Minn, w hrrr irr«-|iaral>lr •' '' 
 
 I hiH |>riii«'i|>lc has hrrn huu « 
 
 in milieu ; thii» in a ciute before l^rd Ktdon, where one 
 
 havin;^ bt-^tiii to j^rt conl in ' Aed into 
 
 the iiiiiic orunothfr, un injuii' ' 
 
 Ai;niii in Lord LontJale v. C'itrwen(z), Ixird I^onMlttlc 
 was owner of rcrtain inincH lyinu: "" ■ " 
 
 ClosHtiks, and Curwen wti» owner «>l 
 under adjoining lands. Cunven wi>rked under the Clotnoks. 
 An injunrlinii was qiantrd to rcHtrnin Cuf ''"g 
 
 coal uiuUt lA)rd Lon.sdaU.''h preiniHeK, and ;.... iiuni 
 
 robbinij or tohinij uway certain supportint; pillars. And in 
 another cose(rt), which wu« of a precisely t»in>ilar natum, the 
 sainconler was made. It inusl Ix; obscrvetl however that if 
 on u motion for an injunction to stay waste by dij;pn^ minCH, 
 it appears that the defendant claims a ri^ht to the inheri- 
 tance of the estate wher«' the mincH arc dufj, the Court will 
 not j^rant an injunction till the answer or default (i;. 
 
 The |)rinciple as to trespass seems to be this: that al- 
 though the jurisdiction of equity docs not properly extend 
 to cases of trespass, strictly so called, yet where the tres- 
 pass is of suiii a nature as to be actually taking away or 
 destroying the very substance of the estate, as in the case 
 of timber, coals, lead ore, there the injunction will be 
 granted to restrain such sjHicies of trespass (c). This doo- 
 
 (.v) MUchtll *. Don, 6 Ve». 147. (c) Vid« n«himttm v. lAtrd Bfrm, 
 
 (t) 3 Blighs App. rv "" 1 Br. C. C. 588 ; and «ro« caj« c«n- 
 
 no>i$. mented upon in Hanton *. Gardimtr, 
 
 (o) Walker X. Flrteher.:i Hli^liv 7 Ve». 306; %e« ilw (' 
 
 -App. Caa. 172. AUtander, 15 Vo. 138. 
 
 (ft) Lou:iheTv.Sfamprr,3A\k.i96.
 
 CHAP. I.] OF A SPECIAL NATURE. 185 
 
 trine has been extended to a case of a party taking stone 
 from a quarry, and for other puiposes than that for which 
 he has a right to take it (d). In the case referred to, the 
 plaintiff was seised of an estate in which there was a stone 
 quarry, &c. The defendant having a contiguous estate, con- 
 sisting of Newton Farm among other lands, had, as owner 
 of that farm, a right to take from the plaintiff's quarry for 
 building and other purposes upon Newton Farm; and he 
 took the stone to a considerable amount for the purpose of 
 using it upon other parts of his estate. On a bill filed 
 against him for an injunction, he demurred on the ground 
 that this was mere trespass, and Lord Eldon admitted that 
 it was trespass and not waste. But he held notwith- 
 standing that the Court would interfere where such trespass 
 would have the effect of destruction in taking the substance 
 of the inheritance, and that, whether the trespass was under 
 the colour of another's right actually existing or not. " If 
 this protection," said his Lordship, " would be granted in the 
 case of timber, coals, or lead ore, why is it not equally to 
 be applied to a quarry?" The demurrer was accordingly 
 overruled. Again, where the lord of a manor extending 
 into the sea, and his lessees were the plaintiffs ; and it ap- 
 peared that at the bottom of the sea, as well as on the 
 shore within the manor, were found certain stones very 
 valuable for making a particular cement • the defendants, 
 who were strangers and therefore mere trespassers, dredged 
 from the bottom of the sea, within the limits of the manor, 
 large quantities of these stones : this, in the opinion of the 
 Court, involved irremediable mischief, and accordingly an 
 injunction was granted (e). So, as already observed (/), an 
 injunction against the lord of a manor to restrain him from 
 digging coals on the copyhold estate of the plaintiff situate 
 within the manor will be sustained, pending a trial to as- 
 certain whether the lord had such right {g). And on the 
 
 (d) Thomas v. OaUey, 18 Ves. 184. (/) Ante, s. 42. 
 
 {e) Earl Cowper v. Baker, 17 Ves. (g) Greu v. Duke nf Nortliumber-^ 
 
 128. i<ind, 17 Ves. 281.
 
 1H(; STAYING WBOMOrrL ACTK [I'AltTII. 
 
 i»an»r j>rincipl«*, wlurc n lunillurti Im* ^nuilctl I- ■ rv- 
 
 iiit; tu liiiiiMrIf tlif ii(;i>l ui luyiiii:, luiikint;, a _ '>iig 
 roadM, uuif^uii Muy», ice. fur {MiniculBr purpoM-n, and a 
 i)ue»ti(*i) uriHCtt ulirtlirr timt rrMTnuliuii riilillt-» liitii to 
 ^^ulll ikucli wuy-U*ttVctt lur ihc |jur|MMK: of uii unliiiury ruil- 
 woy fur Kciirrul truflif ut wril at fur llic inrliculur |iur|>oM 
 int'iitit>iiL>il, the Cuurt will rcHiruiK. uf tlmt 
 
 Ip^iI c|iif Hlmn, the j;niMtrc* of lilt i i << hi 
 
 of iniikiii^ a way, Iruiu levelling uiilevel i;r 
 
 up fiiuieiil poAturr, mill othrnviHc dculroymg Uiu kuHkcc 
 
 of the land (/i). 
 
 57. But ill Hucli cnwM, wlicro, from the nature of the cir- 
 ruinstanrort, vcrv ptf-nt nii«c!iirf may rcuull to the defend- 
 ant, frtun the injiiiulioM Ixiiij; held up t«M» l<»n^, thf iiit<?r- 
 {M)tutioii of the Court nuiHt be with coiiiiidcnihlc prcnsurc, 
 that on till' part «if til ' ' '■ '' ' " ' ' ' v in 
 poin«x to trial; and iiu . ' *^y 
 trial are insured, the Court will not HUHtain the injunctioo. 
 And where a dcrrndant, who " ' inaJior^ 
 was reiuovinp; earth and stoi.' k, which 
 belonged to the plaintifl', and which he swore wm the only 
 protection to his land against inroads of the wa, an 
 
 tion was grunted ex parte, on the ground of the ire , 
 injury; but would not have l>een granted if the plaintiff had 
 not already bv an action establisheil his right at law (i). 
 
 58. But where there is no ca.«e made of irreparable 
 danger, or no ground for the principle applicable to the 
 special ca.«e of mines, an injunction will not be granted to 
 stay trespass in the nature of waste, that is, acts of wa^te, 
 where the defendant sets np an adverse title (A); nor, 
 
 (h) Farrow v. WinsittaTt, 1 Hail- Ihntont. Gardimer.T \rt.305; aod 
 
 way Ca». 602. »ec per I>ord Kldon in \or«r«» ». 
 
 (i) CAa/fe». MyoK, 3 Mcr. 688. Rok*. 19 Vc«. 147; PiUncortk t. 
 
 {k) Kinder y. Jonei, 17 Ve». 110. Hopt^,' 
 and Smith V. CW/i/«^. 8 \c*. «i>;
 
 CHAP. I.] OF A SPECIAL NATURE. 187 
 
 indeed, without any such adverse claim in the defendant, 
 where the plaintiff does not offer positive evidence of his 
 own title ; as, for instance, where the affidavit of the plain- 
 tiff in support of his bill is sworn only as to information and 
 belief of the fact on which his title rests. It must be irre- 
 parable mischief to a person who swears to his title (Z). 
 
 59. That the rule, however, remains unchanged as to mere 
 trespass, and that the exception will not be carried further 
 than it has already gone, appears by a very late case (m). 
 There A., the plaintiff, was mortgagee in receipt of the rents 
 of an estate in Wales ; and the defendants B. and other 
 parties owners of adjacent iron works, desiring to construct 
 an iron tram-road from their works to another place, and 
 finding it convenient to cross the mortgaged estate, obtained 
 permission of C, the tenant in possession of A., by a false 
 representation that they had A.'s consent ; and accordingly 
 laid down a tram-road through the estate, in making and 
 keeping up which, as it was alleged, they did much damage 
 to the estate. A., living at a distance, had no notice of the 
 circumstance for three years; but as soon as he had 
 notice of the existence of the tram-road, he proceeded to 
 have it taken up. The workmen of the defendants forci- 
 bly interrupted the plaintiff's workmen in this, whereupon 
 he filed his bill, among other things, for an injunction, 
 to restrain the defendants from using the tram-road they 
 had made, and from interrupting the plaintiff and his work- 
 men, &c. 
 
 The defendants demurred, and the demurrer was al- 
 lowed. Lord Cottenham, C. said, in giving judgment, 
 " the thing here complained of has been done. The tram- 
 road has, with the leave of the tenant in possession, been 
 completed, and the Court is asked by tlie bill to restrain 
 the defendants, who, having finished the undertaking, are 
 now in the daily use and occupation of it, from continuing 
 
 (I) Diivies V. Leo, 6 Ves. 784 . 
 
 (m) Deere v. Guest, 1 My. & Cr. 516.
 
 188 STAVISr. WnOXCPL'L ACT« [PAIIT II. 
 
 Ko to use it, ; ' 1 mtirtuplui'^ the servants uiul wurk- 
 
 lueii of tilt- j m tlic-ir ii(l<-ii)|ttn Uj ilchtiuy »l. In 
 
 other v*ortli», iht* Court ib virtunlly in*keti to ejinl the dc- 
 fciuhiiitt, ami liuthori/c thr phniitiirH ' "mh to take 
 
 |jottscM>ioti of thi" truiii-roiul. The « . nally "»uy 
 
 have been a cn»e ofuoMe ; wante oeea«ionotl by the rut> 
 linj; of the train-rtmtl, tiiul hiymy; of the ir« ii ruiU ov«r the 
 plaiiitillM' hind ; but uhut iii no%v dunned by the drfi-nd- 
 nntj) \n Hiniply u right ofwuy, and if they ore not entitled 
 to thut ri^ht they ure nu-n- trei*|mhi»en», an<I the plunitiirii 
 hiive their proper h-ptil rniudy ugninHl thcnj tu* huch. The 
 dicta of Lord lUihm in IS'unray v. Rowe (n) have no 
 application to a stale of rircunihtnnceit hke the preiwnt. 
 The ease there referred to l)y his LordHliip, wu* a cone of 
 waste coniniitted by a stranger colluthn^ with the tenant, 
 a case in whuh the huuMord wouhl have a right against 
 the tenant, and therefore against a j)erhon who claimed 
 through ihe tenant." 
 
 CO. On the principle, that ecjuity will not relieve againi^t 
 mere trespass, an injun< tion will not 1 , > , > ^^^^ 
 
 of a dcvisi'C, to restrain the heir at I.i ilic 
 
 will, from cutting timber ; because the deniol of the title of 
 the devisees, and the assertion of the title a^ " ke 
 
 hiDi,if he has no rijilit, a mere trespasser (o). "■ • ins 
 
 by several (licta, that where a bill is filed by the heir 
 against the devisee in possession to stay waste, and the 
 answer states the will to have been duly executed, the heir 
 cannot have an injunction (;>) And the interference of 
 the Court would undoubtedly be refused, if the party 
 apj)lyinc; did not show that he was proceeding to bring the 
 Ic^al (|ucstion to an issue with all expedition. Thus where 
 the bill by the heir at luw against the devisee, wan not 
 tiled till two years and a half after the testator's death, 
 and no action had then been brougb.t, whilst the act« of 
 
 (ii) 19 Vcs. 154. M* 3 .Mcr. 173. 
 
 (o) Smith ». CoH\)tr. 8 Ves. 89; (;») 19 \ <.i. 155. aotl mc 3 Mer. 
 
 ht>tUv t-. /Wuv. 2 .Mol. '>\\, and 173.
 
 CHAP. I.] OF A SPECIAL NATURE. 189 
 
 waste and destruction complained of, were comn:iitted soon 
 after the testator's death, an injunction was refused (q). 
 
 So, where a will comprises personalty as well as realty, 
 the Court will not, at the suit of the heir at law, disputing 
 the will, restrain the executors from interfering with the 
 personal estate, unless there is a suit depending, in the 
 result of which it may appear that the will may be set 
 aside. For if the will stands, the heir is a perfect stranger 
 to the personal estate, and he has no title, unless he alleges 
 that a question as to the validity of the will, as a will of 
 personal estate, is either depending or about to be raised, to 
 ask for an injunction or receiver against the executors (?■). 
 
 In a case of Fingal v. Blake (s), however, the doctrine 
 of these cases was denied. The motion was for an in- 
 junction at the suit of a devisee against the heir at law, 
 who disputed the will, and it was at first refused by the 
 Master of the Rolls, and that order was affirmed by Lord 
 Chancellor Manners (t) ; but on rehearing, it appears that 
 Lord Chancellor Hart reversed the former order, and 
 granted the injunction (m), saying, " he had long doubted 
 the soundness of the old decisions with respect to waste ; 
 that the Court had jurisdiction to restrain waste by an heir 
 at law disputing the will, and he would do so at any time on 
 motion." His Lordship cited no authority for this position, 
 and whether the opposite practice be harsh or not against 
 the devisee, it seems too well settled by authority to be 
 shaken, at least as a general rule, by one contrary decision. 
 
 A curious case of waste, which seems to partake of the 
 nature of trespass, is mentioned in Cary (v), where the 
 plaintiff's and defendant's houses adjoined, and the par- 
 tition wall stood partly on the plaintiff's and partly on the 
 defendant's freehold ; and the defendant was restrained 
 from pulling down the wall, to the overthrow of the plain- 
 tiff's garret, which was over the defendant's kitchen. 
 
 (q) Jones V. Jones, 3 Mer. 161. (f) See 2 Mol. 543. 
 
 (r) Ibid. (u) Ibid. 60. 
 
 (s) 2 Mol. 542, 50. (v) Page 90.
 
 190 ftTAYlNU WROKUPIL ACT* [PAUI M. 
 
 61. 'Hic principle tlint fijuily will M-lu*ve oifaiostor refuM 
 tu uik>iAt tile lc;;ul ri^lit tif u pcrkoii wliu btuiuU hy und ac- 
 quie«Cf« iii the inrriii|;eiiirnt of that nght, und then cuine» 
 tu cluitii it, iit upplittl lu cu%c« of t*iiiit« oh ucII uk tu olhcr 
 ciiM-H. ThuA, win-re the UAnigiiee of n leoM*, whuw lund- 
 lonl having mcrved by the leaMj all tree* and tHnL»er> 
 like IrerH, ivc. wuh perniittid by the landK: ' ' ' it a 
 
 conHidenihle |>ortiun of tin* preniiMi* u» a ] nd, 
 
 at ^reut cxpenve, the landlord aaaiAting by himaelfand by 
 hih hurvevor in <Mittin«^ Ireen for the pnr|M.- ' "•>rd 
 
 wuH refitnnneti from cuttnii; trees in ikueii ; nd 
 
 during the remainder of the tcrm(j). Ho in an earlier 
 cuhe of Jiri/(li/t'if v. KiUiurnri ij), in whirli a ' »v- 
 
 in|jj ullen'd a Io«^\v»mkI nnll into u cotiun mm. , i'*" 
 
 cation was made for un injunction, it waa rcfuaed, on 
 the jjround that the phuntitf had ntootl I en the 
 
 cotton mill erected. And in a very lalt .. . !, lx>rd 
 Hrouj^hain, without deciding; on the merit*, refused an 
 injunction agninst waste, on the 'ground «»f acfpiiesccnce. 
 Again, where a canal company ha%iiij: applied the water 
 tliawn from some exhausted coal mines to the supply of 
 their rescnoirs, the proprietor of neighbourinj; coal mines 
 pave them notice of his intention to r,- Id level, for 
 
 the pur|)osc of draining those mines, j ly to work- 
 
 ing ins own mines ; and the company, instead of applying 
 immediately (aUiiou^^h they had threatened an action), 
 suH'ercd the other parly to go on for two years, at an ex- 
 pense of 200< J/., till he was just ready t.. work his mines, 
 and then came for an injunction; Lord llldon refused 
 it, on the mere ground of laches, and left the jdainlirt's to 
 try their right at law {«). This principle will also be found 
 to have been of frecjuent application in cases arising on the 
 proceedings t.f i;iilu.iv (oiniciinfs iln. 
 
 (j) Jackum v. ( atrr^ ,> \ cs. i>oo. ».>i. 
 
 (y) CiteJ in Jackson v. Caltr, 5 («) BtrmimghamCanaU 
 
 V'ev 688, 6?»1. I. loud, 18 Vc«. 515. 
 (i) Prtrroi V. Palmer, 3 My. & K. ( '') See Chip. 8. p«ff.
 
 CHAP. II.] 
 
 OF A SPECIAL NATURE. 
 
 191 
 
 CHAPTER II. 
 
 Injunctions to restrain Infringement of Copyright. 
 
 1. Ground of the Jurisdiction. 13. 
 
 2. Plaintiff must shew prima facie 
 
 Title. 14. 
 
 3. Where even prima facie Title, 15. 
 
 Right may be repelled by Nature 
 
 of Work. 16. 
 
 4. Mawman v. Tegg. 17. 
 
 5. Doctrine as to fair Use of preced- 
 
 ing Publication. 18. 
 
 6. Doctrine as to Effect of Quantity, 19. 
 
 in Cases of alleged Piracy. 20. 
 
 7. As to bona fide Abridgment. 
 
 8. Bona fide Additions will be pro- 
 
 tected. 21, 
 
 9. Doctrine as to Books of the Class 
 
 of Boad Books, Calendars, and 22, 
 the like. 23, 
 
 10. How Piracy judicially detected. 
 
 11. Effect of putting forth a Work as 
 
 the Work of another. ». 
 
 12. Ride us to necessary Allegation of 
 
 Piracy, where the Works are of 25, 
 voluminous Character. 
 
 Injunctions to restrain Publica- 
 tion of Letters. 
 
 General Result of the Authorities. 
 
 Injunctiotis to restrain Publica- 
 tion of unpublished MSS. 
 
 Privileged Publications. 
 
 Where Question is, whether the 
 
 Plaintiff is the Person having Title. 
 
 Piracy of Lectures. 
 
 Stat. 5 if 6 Will. 4, c. 65. 
 
 Copyright in Translations, and 
 Copies of Specif cations of Pa- 
 tents. 
 
 hij unctions to restrain copying 
 Engravings, S^c. 
 
 Foreign Copyright. 
 
 Question as to Copyright of a Fo- 
 reigner ; and of an English Sub- 
 ject obtaining the Copy from a 
 Foreigner and publishing here. 
 
 Stat. 1^2 Vict. c. 59. Interna- 
 tional Copyright. 
 
 Other Cases oj' Injunctions in 
 Matters of Copyright. 
 
 1. The jurisdiction of equity in matters of copyright is 
 founded upon this, that the law does not give a complete 
 remedy to those whose literary property is invaded ; the 
 Court of Chancery, therefore, interposes by injunction (a). 
 
 The Court exercises its jurisdiction, not for the purpose 
 of acting upon legal rights, but either on the assumption 
 
 (a) Jac. 314, 472.
 
 liK? --TAYIWIJ WBOJIGFUL ACTV [pAllT II. 
 
 tilut lliiMi: -. . ^.il n{»J«l, for the purjjoiic of bclUr enforc- 
 ing it ; or, in u cum* of iloulit Mrhcliirr flu* It^:^! ri{;bt c\iitl» 
 or not, for the pu- < f until i' ' 
 
 brcn m»cfrtauM<l , . ' .: bciny; i' : 
 
 c|iiriit u|M)ii tlic l(*v'nl rit'lit />). Hut the jurtMiictiiHi of the 
 (xourt tu : Ml i« not takrn iiMay, becauM* 
 
 on uct of i I , Jc» a rcmcilv 'v ».-.i.1 jiriion 
 
 on tlu' cu^<• f). 
 
 '2. Ill t;«n«nil, equity rcf|uirc» n plaintiff, v..., . ...... i., 
 
 claiiii ilH iiitrrfcrcMice for the protr«-ii<«ii tif rn]»yn<^ht, to 
 show w prima facir lr;^al litlr(»/}. 
 
 This is (l(ii)c, if thr author iH hiiii"- m (ji- |M.iiiiiiii, i>\ .m 
 aniilavit of the fuel ihnl h«' is th*- nuflior of the Ixwk. If 
 the plaintiff in an as.«i iiirnt of copyri(;ht 
 
 sliould Ik" regularly in un title must ' ' m 
 
 in ;;«ncml by proving siul. uent. The j .1 
 
 an nHHignee, must swcnr to n particular title; it m not 
 enough U^ say he lmn pur> ' ' ■ " ,j jjj^ 
 
 copy; r»r os no one but i f the 
 
 author ha.H title under the statute, he must swear that he 
 piircliastMl it of tin ' '/), or cf ' *;). Hut 
 
 when he claims a- , of an :■. _ sill not \)C 
 
 put to produce the oiiginal afisignroent to his assignor. 
 Thus in ^f orris v. Kelly, nn injunction was granted to re- 
 strain the defendant from jKTforniing a comedy, the copy- 
 right of which had been originally sold by the author Ut 
 the ])roprictors of the Haymarket theatre, and by them as- 
 signed by writing to the |)laintiff. Although the plaintiff 
 was unable to show whether the original assignment by 
 the author had been in writing or not, I/onl Kidon threw 
 the j)roof of want of title on the deretulrnif-^. 
 
 (6) 3 Mjl. Ck Cr. 728. (/; H .w(.rr, 3 .Mau. \ 
 
 (c) Sheriff V. Coalts. 1 RuM.& My. .'v'l. 7. 
 
 159. (/) (mm/-' *. Smiflr*. t Kq. Ab, 
 
 (d) Sc« however on th« qualiBca- .V22 ; 4 Vin. Ab. 278. A. 4. 
 
 tJoDS of ihc rule, p.n(. p. 1P6. (/:) Merrill Kelh, IJacA W.48I.
 
 CHAP. II.] OF A SPECIAL NATURE. 193 
 
 Where the plaintift'does not show o. pi'ima facie title, the 
 Court will generally refuse to interfere till the right has been 
 tried and determined at law. Thus in a case of Piatt v. 
 Button{h), the plaintiff claimed by his bill the music of cer- 
 tain dances as his property, but he did not file with the 
 bill any affidavit of title, and it appeared that he had per- 
 mitted several people to pubhsh these dances, some of them 
 for fifteen years. Under these circumstances Lord Eldon 
 refused to interfere before the legal right had been deter- 
 mined at law. 
 
 And though a title by assignment must be by writing, 
 yet a parol licence by an author, followed by long acquies- 
 cence, may so far give the licentiate a quasi right, as to pre- 
 vent the Court from restraining him at the suit of the author. 
 In Rundell v. Murray (i), the plaintiff had made a free 
 gift by parol of her MS. to the defendant, without any li- 
 mitation as to time, and fourteen years after, finding that 
 he made considerable profit by it, she sought to restrain 
 him from continuing the publication ; but Lord Eldon re- 
 fused the injunction, holding, that without saying in whom 
 the copyright was, the conduct of the plaintiff was such 
 as to amount to a licence to the defendant, without definins; 
 a limit, and he would leave the parties to law, 
 
 3. Though in general the author or his assignee has 
 a prima facie legal title sufficient to support an applica- 
 tion for an injunction, yet the work may be such, that for 
 reasons of morality or public policy, no action at law 
 could be maintained upon it. Such is the case where a 
 work is of a grossly immoral tendency; or irreligious; 
 denying or throwing doubt on the doctrines of the 
 Christian religion ; and in these cases the work would not 
 be protected at law(/e). The doctrine of equity in refer- 
 ence to works of this character is, that if an author can 
 
 (/i) 19 Ves. 447. J.; see also Hime v. Dale on this 
 
 (i) Jac. 311. point, 2 Camp. 31, notis, per Lord El- 
 
 (k) See 2 Mer. 439, as to the doc- lenborough. 
 trine laid down at law by Eyre, C. 
 
 O
 
 11 UTATIJCG WttOWCn'L ACt» (pART II. 
 
 muiiitiiiii n ' 
 
 CUIUf lltti' ...... 
 
 Hul if titi iiul be I ' 
 
 doiic III c<|uity, which i» onU (u thr Um, .iit>l 
 
 thr ■ ' - uill not tjivc rclif' ■■• •'■' ''■*'^ iN"-' 
 
 <l, 
 
 lit \iaictU V. Itii/irr, Lunl hiiitMi apfirovcd tii< 
 ol Lcrtl ('. J. Kvf • ' • ' thul |ni' 
 
 uiuy Ijo til iiuch • i :iior euii > 
 
 no action at law, and laid down the docinnc, thut uhun that 
 U Ih. . " ' T ' 
 
 JUIU'tl , ' ' • 
 
 pluiiitiir* work, thcrr l>cin^ u dispute between the pUiuilill 
 
 Uiul ilifrllil ■ *,!;,. 
 
 Ctlltluii, ill' , ' :• ■ 
 
 which ihey were not autiioriM-<l to (mblinh. Ixird KIdon n>- 
 fiiHcd tt) bUHtuin the injuncluni c: 
 
 in rejpird to which the ddcmlaiii , - , 
 
 Huid it wns not the duly of the Court tu eruiit on injiincttuii, 
 even on tht> hultiuihsion of th( it, if it up|M:ired 
 
 doubtful whcthei the plunilitl' c< i.....itUiin on uc Uou at 
 
 law. ** lielore," he »aid, " I uphold any injunction, I 
 will !^c thoHu publications, oJid determine upon ibc nature 
 of ihcni, whether thire is question onougli to send to law 
 as to the proiK-rty of these copies ; for if not, I *vill not 
 act upon the submission in the answer. If u|>on inspec- 
 tion ihc work ap|>rars innocent, I will act on the subini*- 
 sion in the answer; if criiiiinal, I will not act at all; and if 
 doubtful, 1 will s( nd that question to law." 
 
 \i\ Ltnrrrnrt \. Siuit/i (m), I>ord Kldon, ha\U)^ lo;!.' i 
 an opinion that tlu- work in some parts inipugned the < - 
 trine of tlic immortality of the soul, and the truth of the 
 scriptures, or mtlior, havini: cntfrtauietl a doubt whether it 
 did not do so; and doubtini; whether a work thus con- 
 structed would be held entitled to protection at law, re- 
 fused to assist such doubtful right by injunction. " The 
 
 (i) Jtc 472; aod WaUoi v. Wolkfr, 7 Ves. 1. ( m) Jac 171.
 
 CHAP. II.] OF A SPECIAL NATURE. 195 
 
 plaintiff," said his Lordship, " may bring an action, and 
 when that is decided he may apply again." So in Murray 
 V. Benbow{n), and in another case, the protection by in- 
 junction was refused in support of a publication, the ten- 
 dency of which appeared to the Court such that it was 
 doubtful whether in law there would be copyright. This 
 doctrine will be acted upon, even although the case should 
 be that the author has never published the work, and that 
 he wishes to restrain the publication, because of the impro- 
 priety of it, and of the personal injury which he would suffer 
 by its publication; the Court would still refuse to interfere 
 in such a case, because it has nothing to do with the pu- 
 nishment or prevention of inj uries to personal character, but 
 only with the protection of the legal title of the author. 
 In a case, therefore, where the Court had doubts whether 
 a work was of an innocent character in the sense of sup- 
 porting an action for damages, and where besides it ap- 
 peared that the author had left the manuscript in the hands 
 of a publisher for twenty-three years, without inquiring 
 what had become of it, the Court refused, upon these 
 grounds, and as it would seem without considering it ne- 
 cessary to determine positively whether the work was or 
 was not an innocent one, to restrain the publication until 
 the author had established his right at law(o). 
 
 And where a publisher advertises the publication of a 
 work in the name or as the work of a person who is abroad, 
 an injunction will be granted to restrain such publication, 
 if the defendant refuses to swear to his belief that the work 
 is composed by that particular person, and that person's 
 agents swear to their belief that it is not his work, and to 
 circumstances shewing strong probabihty that it is not(p). 
 
 4. The case of Mawman v. Tegg, which was the subject 
 of great discussion before Lord Eldon, specifically decides 
 only two points : first, that it is not an inflexible rule of 
 
 (»j) Cited ibid, 474, notis. (p) Byron v. Johnstone, 2 Mer. 
 
 (o) Southey v. Sherwood, 2 Men 29. 
 435. 
 
 o2
 
 VJCt STAYING WBOKGPUL ACTb [PAIITII. 
 
 equity, timt the plaintifl'iii an injunction bill ai;;iiii^i jjiiacy 
 ut Ills i'i>|iyn;^lit iitUht hUuw u le|;ul title ; but that it' hu 
 Hhowii a clear c(|uituble title, e(|uity will inU'rfere, altliuugh 
 liin Ir^al title may luit be elearly cuiu|)lcte ; M-eoiidly, that 
 UH betwii M wurkn of cum|iilutiun, nucli u»» lCncycl«»|iUHli;i», 
 Dictiunariew, and the like, it it material to a«C(rrtain what 
 quantity han Imth jiirate<l ; not fur the |iur|K>so «»f tlcter- 
 nniiin^ whether an injunction shall \^o at all, but whether 
 un injunction hIuiII go ogainHl the whole work, or only 
 agnintit so much ns han been pirated. In the course of Iuk 
 judf^mcnt, however, Lord Mldon let fall i»t»inc im|>ortant ob- 
 Hervations concerning the law of the Court as to workH of 
 this class. It may be collected, that where the Court ftec« 
 that the j)inilical patt is such, that, bcinr^ removed, it would 
 (kstrov the whole, an injunction may be 'p;ranteil ay;aiiihl the 
 whole : but that the Court will seldom, if ever, grant an 
 injunction ai;ninsl the whole work, without having fust 
 usicrtaiiK-d by it*> own inspection, or otherwise, the (juan- 
 tity «'t iiKilter pirated. That where only a few pirated 
 passa^^es occur, there may be much doubt whether the 
 Court will exercise its jurisdiction, or wouhl not rather 
 h ave the complaining party to his action at law. That the 
 best evidence in the absence of positive avernu-nt of pira- 
 tical copying, is the circumstance of the blunders of the 
 original book being transferred into the book which is 
 accused of piracy ; and that w hen a considerable number 
 of passages arc proved to have been copied, by the copying 
 of the blunders in them, passages, if found to be the same 
 with other passages in the original book, must be presumed 
 prima facie to be likewise coj)ied, though no blunders 
 occur ill them. These arc only extra judicial dicta, it is 
 true, but they aftbrd nevertheless important principles re- 
 garding cjucstions of piracv, in a class of works, in which 
 it is obvious that each case must be decided, to a con- 
 siderable extent, upon its own circumstances (7). 
 
 It was intimated also in Maicman v. Tcgg that where 
 
 (9) Mauman r. Tt^, 2 Rust. 366.
 
 CHAP. II,] OF A SPECIAL NATURE. 197 
 
 the plaintiff has an equitable title, and it is necessary to 
 send the case to law to try the question of piracy, the de- 
 fendant will be put on terms to admit in the action, for the 
 purposes of the action, the legal copyright of the plaintiff; 
 and this may be considered as now the settled practice (s). 
 
 5. In Wilkins v. Aikin (t), the doctrine as to what con- 
 stitutes a fair use of a preceding publication was much 
 discussed. The plaintiff had published a work on the 
 Antiquities of Greece, containing many plates, and the de- 
 fendant published a treatise on the Doric Order of Archi- 
 tecture, in which he introduced some parts of the plaintiff's 
 work ; but the greater part of the defendant's work was 
 compiled by himself from materials common to both au- 
 thors. Lord Eldon treated it as not a case for dissolving 
 or sustaining an injunction simjjlicifer ; but allowed the 
 defendant to go on, keeping an account, an action to be 
 brought forthwith. 
 
 The principle on which the Court acts in aiding copy- 
 right by injunction was thus stated by the Lord Chan- 
 cellor (m), " the jurisdiction upon subjects of this nature is 
 assumed merely for the purpose of making effectual the 
 legal right, which cannot be made effectual by an action 
 for damages, as if the work is pirated it is impossible to 
 lay before a jury the whole evidence as to all the publica- 
 tions which go out to the world to the plaintiff's prejudice. 
 A Court of equity acts, therefore, to make the legal right 
 effectual, by preventing the publication altogether; and 
 accordingly, in the exercise of this jurisdiction, where a fair 
 doubt appears as to the plaintiff's legal right, the Court 
 always directs it to be tried, making some provision in the 
 interim, the best that can be for the benefit of both par- 
 ties." 
 
 In Saunders v. Smith {x), the defendant had composed a 
 
 (s) Sweet V. Shaw, 17 Law Journ. (0 17 Ves. 42-2. 
 
 216; S. C. 3 Jurist, 217 ; Sweet v. (w) Per Lord Eldon, ihld. 424. 
 
 Cater and others, 5 Jurist, 68. (i) 3 My. & Cr. 711.
 
 Iil8 hTAVlso i»Hi»^«FrL Arrs [pAur ii. 
 
 work in which hr hml • mm-« at full Ini^th 
 
 I'runi K. |M.irtH mvircil K. , . f;ht uf th«- pliuiitit), 
 
 uml hail (-(MniiiPiitc<l ii|x>n th«*m in copious note*. The 
 luilfH rortiiiiit; nol nirtfly the in M.n« |nirl of the 
 
 liook, but in fact iln chief and int;...^ luc. The |j|uin- 
 
 tilV, it n|)|M;tm>iJ, knt>\vif»g tliut th<? (Icfeiulunt hnil pub- 
 linhcti niir volume of thm chonictrr, und Ixinij made aware 
 that hf wnn pffptiring u nccond, |>crniitl«*<l hini to t;o on 
 until till? firnt |iart of the hccond voluiu'- wan puhlidhcd. 
 Under llu**!? circuinxtniicen the Ixjnl (/hannilor hchi, that 
 without tliM'idins; whether or n<» the defeiuhinl ha<l a legal 
 titlo to do what \\r had il«»in', it whh not u < um* for tin* ni- 
 terpoi^itiun of e<|uity by injunction, until the plHUilidn Hhould 
 hav«' fHtaliJi^lH*! their title at law. 
 
 In liniinu'tll v. Ilnlrnmh y), the (|ueiilinti i 
 
 whether the defendant Imd fairly made exlracU from the 
 plaintitl'fl work, or whetlur he Imd taken \ fjuan- 
 
 lity as to infrinj^e on the plaintiil's ci)p\ :, '. wi i>ord 
 
 Cotlenhnm.C, rejnidiated the doctrine that quantity could 
 Ih? nn clenipnl of decision. " When it coincB to n cjUcBtion 
 of qunntilv." ^<ni(l hi« l/ortlship, "it must Ik? very vague. 
 One writer might lake nil the vital jmrt of nnothcr'n lx>ok, 
 though it ini<^ht be but a small proportion of the l>ook 
 in (pinntity. It \^ not only (|uantitv but value that is looked 
 to. It is useless to refer to any jrarticular caxs an to 
 quantity." llis Lordship expressed an opinion that an 
 injunction ccmiKI iu)t be sustained ; but the rase went off 
 without a final decision on the point. 
 
 G. Hilt altlioiigh in cases of iiilriiij^cment of cojjyrijrht, 
 the quantity taken is not iienerjlly to be made the standard 
 by which to determine when there is piracy or not, yet 
 there are cases in which the smallness of the cjuantity 
 taken is of importance in deciding the question of piracy. 
 Thus in a case before Sir Thomas PJumcr, M. H., in 
 which the work alleged to be pirated was a play, extending 
 (v) 3 .M_v. i. Cr. 737.
 
 CHAP. II.] OF A SPECIAL NATURE. I£i9 
 
 over forty pages, and the defendant published a journal of 
 theatrical criticism, in which, as illustrative of his critical 
 remarks, he had introduced broken and detached fragments 
 of the piece in question, amounting in the whole to six or 
 seven pages, some weight appears to have been allowed to 
 the circumstance by the Court, as affording ground for 
 doubt whether the defendant had transgressed the limits 
 of fair quotation. Whether he had actually transgressed 
 those limits the Court was not called upon to decide, be- 
 cause the plaintiff having brought the cause to a hearing 
 for the purpose of obtaining a perpetual injunction, and 
 the injury, as it appeared, being altogether trivial, the 
 Court dismissed the bill with costs, principally on the 
 ground, that to sustain an injunction at the hearing, there 
 must be nothing like doubt in the case (a). 
 
 But quantity may be connected with, or influence the 
 value of the extract taken from a work, and consequently 
 may indirectly affect the injury done to the plaintiff; and 
 therefore it may, under particular circumstances, form an 
 element in the decision of the Court as to granting or with- 
 holding an injunction ; this appears by a late case, in which 
 the Lord Chancellor thought that if there were no other 
 ground, the small value attributable to extracts from the 
 plaintiff's work, was sufficient to justify him in withhold- 
 ing an injunction (5). And from the report of the case it 
 may be collected, that the question of value depended in 
 some measure on the quantity pirated. 
 
 7. An injunction will not be granted to restrain a fair 
 bona fide abridgment of a larger work (c). What constitutes 
 a fair abridgment it is not always easy to determine. Where 
 passages read fiom each work in a biographical compo- 
 sition show that the facts and even the terms in which they 
 are related in the alleged abridgment are frequently taken 
 
 (a) Whittingham v. Wooler, 2 (c) 1 Brown, 450; and see Giles 
 
 Swans. 428. v. Wilcox, 2 Atk. 143, per Lord Hard- 
 
 {b) Bellv.Whitehead,n La.wJo\XTn, wicke. 
 141.
 
 200 «TAYI!<n irROJtGPI L ACTl« [PAIIT 11. 
 
 rrrlHitim from th ' . an rr juirte iniunction 
 
 will U- j;iuntr<l I i.r urtlir ; anil tl>f c|uc«- 
 
 tioii wlirthcr il in u fuir abritlginciit or u |iinicy will \x. 
 n-fertfil lo t! '^ 
 
 III ihc la ' N Hi7rox(r), Uic dcfcndmit had 
 
 copirt) Sir M. Ilulc'n IMent of the Crown; only •onic old 
 htiitiitrH wvxv lifl out, and tlif Lutin ond I'muli f|iM»toli<»fi« 
 wvxv tiaiiMlti(r<l into Kn(:li»li ; the c|ucAti(in mua, ulicther 
 that \vu* n fuir ahnilf^inrnl. The (x>urt iiwm* to hive in- 
 cliiirtl t«» cunHidrr it colonrublc, hut it wait rcfcrrrd to orbi- 
 tmtiuii. 
 
 H. Iiuicc<l equity will conHi«lc»r honti fide nddilioni »o 
 f.ir |)ro|>ortv as to b<' entitled to |)r(»tectioii by injunction. 
 Tinis the pimtieal puMicatKin of original iiotr-H to u work 
 which of itself is public pro|>crty will Ix? rc«tniino<l ; ond thot, 
 although there is a Rinall admixture of new notin nmon|^ 
 the pimted notes ; niul it is nu defence to ftay that the 
 plaintidhas published the notes of other authors witiiout 
 liavini; a rii;ht to them (/). 
 
 However, wlierc the owner of the copyrif^ht of a work, 
 consisting of narrative and reflectiomt, has himself publii»he4l 
 large extincts or an abstract of his work in a peritKliral, other 
 parties who have subsequently done so, ami that by taking 
 t»nly the narrative and leaving out all the reflectionj*, not 
 printing on the whole more than one-tenth of the work, 
 will not he restrained {g). The Court appears t«) have Ijeen 
 much influenced by the consideration that the plaintitT hav- 
 ing already done precisely the same thing himself, could 
 not be much injured. IJut where a play has not been 
 publisheil bv the author, who obtains his remuneration 
 by ji( rmittiiig it to be played, a person ])iraling the words 
 ol it by means of a reporter, and publishing not an abridg- 
 ed) BtUs. Walker, 1 Hrown, ' ' ' ) r<»nioii».irii/A«-,3Swao»u672. 
 450. (g) Dodtify Y. hittnertlry, Ainb. 
 (»•) 2 Atk. HI. 403.
 
 CHAP. II.] OF A SPECIAL NATURE. 201 
 
 ment or abstract of the whole, but an entirety of a part, 
 such as one whole act, will be restrained {h). 
 
 9. The general doctrine on copyright in publications of 
 the class of maps, road books, calendars, chronological and 
 other tables, and such things, is not very easily reducible 
 to any accurate definition. Some of the cases lay it down 
 that, properly speaking, there can be no copyright in such 
 works. ''AH human events," says Lord Erskine,in Matthew^ 
 son V. Stockdale (i), " are equally open to all who wish 
 to add to or improve the materials already collected by 
 others making an original work. No man can monopolize 
 such a subject." And in an earher case, Lord Thurlow had 
 said as to road books and such works, that the subject 
 matter is in medio ; roads are open to the inspection and 
 observation of all mankind, and every one is at liberty to 
 pubhsh the result of such observation (k). On the other 
 hand, in Longman v. Winchester (l), which was a case upon 
 a calendar, Lord Eldon said he could not go the length of 
 stating the proposition that there could not be copyright m 
 a work of that description. 
 
 But whatever maybe the true doctrine on this point, there 
 is at any rate a right recognised and protected by the Courts 
 to this extent; that though every man has an undoubted 
 right to compile a literary work from those sources which, 
 whether in nature, or in other books not subject to copy- 
 right, are public property, open to all ; yet if one man has 
 with mental labour compiled such a work, another man 
 shall not copy from that work (w<). 
 
 In Zone/man v. Winchester, Lord Eldon thus expressed 
 the doctrine ; " take the instance of a map describing a 
 particular county, and a map of the same county afterwards 
 published by another person ; if the description is accu- 
 rate in both, they must be pretty much the same. But it 
 
 (h) Macklin v. Richardson, Amb. (/) 16 Ves. 269. 
 
 694. (to) Gary v. Longman, 1 East, 358 ; 
 
 (0 12 Ves. 273. Cary v. Faden, 5 Ves. 24; Matthew. 
 
 (/i) Carnnn v. Bowles, 1 Cox, son v. Stockdale, 12 Ves. 270 ; Long- 
 
 283. man v. Winchester, 16 Ves. 269.
 
 202 HTAYINO WAONGPUL ACTri [PAKTll. 
 
 in clear, tli«« hitler |iuhlis)ier cannot on that account U- juit- 
 titird III n|iiiriii;^ hiiuwll tiio lulxjui uiid cxiKMitc ut' uii ac- 
 tual Kurvvy, and copying the map previouiUy pubhi>hc<l by 
 another. So n» to Puteriiuirii K ' !' k, it ih cirtuiiity 
 con)|>ctent to any otiier niuii to ^ a book ol ntuiU ; 
 
 unil it the Mnie mIiiII, intelh^cnco and ddl^l:ncc arv upphrd 
 in the Heciiiid lliHtiilicr. the pulihc MOuUi receive iieurlv the 
 Hanie iiiionnulion liuiii bolli wotk^. iiut there it no duuht 
 that thi« (xjurt wouhl interfere to prevent a nicre n'pubh- 
 calJoii ofu Work, which the labour and nkillof anoUier per- 
 Hon had HUpplied to the world." 
 
 And ill tin: cum: of i'ttman v. Jiou^les, already referred to, 
 where the (jneHtion wuh um to the ximdurity of two roa<l 
 books, one of which ^ave a deftcription of all the roads of 
 Ciieat nriluin by letler-prcflH, und the other ni i^nat part by 
 maps; Lord Thurlow nuid, the question would l>c whether 
 the author (of the first) had exhibited any new and dintincl 
 idea III the expoMdon of the loudn ; and then wluiiicr the 
 subsequent editor hud in hubntance adopted the name. In 
 cnseA of this claims of road books, maps, hic, tlic c|ueHtinn 
 whctluM tiicre is piracy or not must, of course, vary m 
 almost every case ; but the goneral ndc applicable to other 
 copyrii^ht cases prevails, that the plaintiif must show a 
 jtriinii fucic title. Thus wlicie A. published a road book, 
 in which he had taken the plan and much of the materials 
 of an earlier work of the same kind, and then fded his bill, 
 and moved for an injunction against B., who had publishc<I 
 a road book, taking much of A.'s matter, the Lortl Chan- 
 cellor made no order, saying, '* if he <hd strict justice, he 
 shouUI order B. to take out of his book all he had Uiken 
 from A., aiul, rocij)ii>cally, A. t(» take out of hi.i book all 
 ho hail taken from the earlier work («).'" 
 
 10. The fact of copy or no copy is generally ascertained, 
 in the absence of direct evidence, by the appearance in the 
 alleged copy of the same inaccuracies or blunders that are 
 
 (i>^ Cary T. Fadfu,3 Ves. 24.
 
 CHAP. II.] OF A SPECIAL NATURE. 203 
 
 to be found in the first published work (o). It may be 
 questioned whether this is a perfectly sound principle ; it 
 is quite possible, that in copying the same original, two 
 persons may have made the same errors ; and that, because 
 such errors may arise, not from any inherent disposition to 
 a particular error in the mind of either author, but from 
 a combination of circumstances appertaining to the ori- 
 ginal, tending to induce a particular kind of error in any 
 ordinary mind, applying itself to the observation of that 
 original. 
 
 Other circumstances may, however, also afford inferences 
 of servile imitation: thus, in Matthewson v. Stockclale(p), 
 where the ground of the work was a catalogue of names, 
 appointments, and such other information constituting the 
 East India Calendar, great similarity in long lists of casual- 
 ties, removals, and deaths, even as regarded the position in 
 the page, was considered of weight ; and the Court, in refe- 
 rence to such a work, laid some stress on the price of the 
 defendant's work being much lower, as affording an inference 
 that it must have been copied ; " the defendant," said the 
 Lord Chancellor, " thinking the plaintiff's work imperfect, 
 and capable of improvement, the natural inference is, that 
 his work would be more expensive ; but he publishes at less." 
 
 11. Where a person collects accounts of natural curiosi- 
 ties and such articles, and employs the labour of his mind 
 in giving an accurate account of them, that, it seems to have 
 been the opinion of Lord Eldon, is as much a literary v/ork 
 as many others that are protected by injunction and ac- 
 tion ; and where one person has published such a work, 
 although it is equally competent to anotlier to produce a 
 similar one, provided it be bona fide his own, and put forth 
 as his own original work, yet he will be restrained from 
 putting it forth to the world, in such a manner as to lead 
 the public to infer that it is the work of the other. Thus 
 
 (o) Longman v. Winchester, 16 cited ante, p. 195. 
 Yes. 269 j see also Mawman v. Tegg, (p) 12 Ves. 270.
 
 204 STAYIN". \> Hv>.i i i. A« •r' [part II, 
 
 in //(><7^ V. Kirlnj, wlicic Kirljy published for llog'j: a \yo- 
 rio<licul woik of lliis iiuturt-, airl tluii diirtrenct*i» liuvin«; 
 ariiien, aiinouncctl uiid imbiihlicd u new work, a« " u new 
 Mcrii'K iniprovt-d," and vmIIi hucIi cunlnmnccH as to the 
 cover, &c., that it would In* inipoHndjIc, without rcudini; the 
 two, to find out that they woro difl'ercut, and »o that tho 
 ('ourt wan Katit«fud tlu? (hrfindant had n-prt'stMilrd Iuk work 
 to be the nnnic art tho plauilill V, an injuuilion watt ^rantetl, 
 )i|)rcially worded, ho hh to o|>crat4: only a^uinKt the publi- 
 cation handed out to the world ax the continuation of tho 
 pluiiitdr's ; the plaintiH" heinj; put on tirmK to bring an ac- 
 tion, and Mie defi-inlunt to plea<l without delay (y). 
 
 IJ, III Lruis \. J'lil/arlon 1^, i.oid Lun^jdale, .M. K., 
 elaborately discussed the (juestion, what order hhould be 
 iii;i(lt 111 a case of conflicting works of compilation and of a 
 very voluminous ehara(t<'r. Tin* plaintifT's work was a to- 
 po<j;raphieal du'tionary, and the (h-temlant's was (he same ; 
 niul the Court came to tho conclusicjn, on examination of a 
 great number of passages, that the defendant had exten- 
 sively made use, not of the original sources, but of the plain- 
 tiff's W(»rk ; and that in a large proportion of the defend- 
 ant's work no other labour had been applied than in copy- 
 ing the plaintiff's, and an-anging the matter in the form which 
 best suited tlu^ defendant's purj)ose. His Lordship was 
 elcarlv of opinion, that the defendant's work was, to a con- 
 siderable extent, a |)iraey : but then it ct>ntained many ori- 
 ginal passages, as to wliieh his Lordshij) said, if they had 
 stood alone, no injunction could have gone; and the difK- 
 culty was, as in Miitrmdu v. 7<y/r/, whether to grant an in- 
 i unction ao'ainst the whole work on the evidence of the 
 piracy existing as to a large ])ortion, or whether to ascer- 
 tain first all the piratical part*, and to enjoin specifically as 
 t<^ those ])arts. The order ultimately determined on was, 
 that the defendant sliould be restrained from publishing, 
 \r. anvcopies of a book called "A New and Comprehensive 
 
 (7) Uogg V. Kirhy, 8 Ve». 215. (r) 2 Ikav. 6.
 
 CHAP. II.] OF A SPECIAL NATURE. 205 
 
 Gazetteer" (this was the title of the defendant's book), con- 
 taining any article or articles, passage or j^assages, coined, 
 taken, or colourahly altered, from a hook called the " To- 
 pographical Dictionary of England,^' published by the 
 plaintiff. 
 
 In a later case of Sioeet v. Maugham {t), which arose 
 on an alleged piracy of a periodical devoted to reports of 
 law cases, the same sort of point arose ; it was objected in 
 that case, that the plaintift' did not specifically point out 
 what were the articles in which he claimed copyright; but 
 the Court held that was not necessary, as in voluminous 
 works the practice is to point out some specific acts of pi- 
 racy, as evidence of infringement, and then, if the injunc- 
 tion is granted at all, it is granted generally. In this case, 
 the order closely followed the order in Lewis v. Fidlar- 
 ton. Tile defendants were restrained from publishing any 
 copies of their own publications, containing reports of cases 
 copied from reports of cases published by the jjlaiyitiff. 
 It is plain that this form of order rather eludes than meets 
 the difficulty ; for in effect, it leaves to be decided, on a sub- 
 sequent motion for breach of the injunction, what specific 
 parts of the defendant's work he may, and what he may not 
 publish. 
 
 The general course in such cases of alleged piracy is 
 this : if the Court sees strong ground for supposing that 
 the defendant's work is a colourable imitation of the plain- 
 tiff's, an injunction ex parte will be granted till answer 
 or further order; and then on motion to dissolve, if the 
 Court has doubts, it will, in order to ascertain the fact 
 of piracy or no piracy, either refer it to the Master to ex- 
 amine into the originality of the new book {u), or inspect 
 the two works itself (a;). The former course is pursued, 
 where the works are long and of a complex character, con- 
 
 (0 9 Law Journ. N. S. 323 ; 4 Br. C.C. 451 ; v. LeadhiUer, 4 
 
 Jurist, 479. Ves. 681. 
 
 (m) Carnan V. Bowles, 2 Br. C.C. (.t) Butterworthv. Robinson, SVes. 
 
 80 ; 1 Cox, 283 ; Bell v. Walker, 1 709.
 
 20G STATIHG WROWCPCL ACTS [PART II. 
 
 luiuiiig much liiut m cuiiiuiuii property, luiii w)uie original 
 luatter; u* when llie wurkii in qucslioii consisUHl puriiy 
 of hrliclioii* from hu>lorit>i> ami loun» llirou(:h u |iuriitulur 
 proMiice, uiiil partly of obMr\tiUt>ii»(y) ; on the lonimry, 
 thr lulUr courw." will be utioptttl, where the worki* arc of a 
 cluM ufiortiiiig facility for the detection of piniey hv iiunie- 
 diute iii»|>ection(:) ; and m ouch u caiM: an injunction will 
 \h' tinmltil on cerljlicute of bill filed (a). 
 
 NMkii the two bouk» have been fully (-xui the 
 
 .Mii-t. r, and he re|>ortJ« that they are in parts v.... ; and 
 
 III puiih the i»aiue, uii injunction will Im- jiranl«d to rentrain 
 U»e publication of the second work uh to the purlti that arc 
 hunilur to those of the firHt (/»). But where the Masior rc- 
 |)orteil th;il the bot)ks were not the .same lHx>ki», ami that 
 they dilleied in this, that one was a description of roadi 
 by li'tlerpress, and the other a desrrijili ' ' * i 
 
 part by uiups, and of the reuiaindcr by l< , 
 roiids were in substance the same ; the Court lefr-rred it 
 buck to the Master, to intpiire whether the alleged piratical 
 work wa.s a new and vrigiual work (c). 
 
 Where the piracy is plain, un injunction will be trrant<rd 
 to restrain the publication of any work or workb iu which the 
 matter of the plaiiitiH's publication, or any part thereof, is 
 vtrhalltf or substantially introduced (</). 
 
 13. As to the juri&dicUou of equity to restrain the pub- 
 lication of letters, there has been considerable discussion, 
 and some refined distinctions have been taken. In a case of 
 Pope V. Curl{('], Lord Ilardwicke thought that writing a 
 letter to a jiarty did not give the recipient an absolute pro- 
 perty in the letter, at least not such a property as to justify 
 liiui ill publishing, but at most a joint property with the 
 
 ( v) V. Leodbitler.anle, p. 205. Murraxi, cilc<I 1 Hr. C.C. 8.j pfrM. H. 
 
 (i) ButUrKorthv. ItokinMUi, an t, (f) Carn.in v. Boif<*J, 1 Coi, 283. 
 
 p. 205. ('0 Vxnnock V. \io%t, 2 Br. 85, D. 
 
 (a) Ihxd. (3\ lieU'scd. 
 
 (fc) Carnan v. fioic<<i,aDd Mown v. (') 2 Alk. 342.
 
 CHAP. II.] OF A SPECIAL KATURE. 207 
 
 writer; and he restrained the defendant, a bookseller, at 
 the suit of Pope, from publishing letters written hy Pope 
 to Swift and others, but not those written to Pope. 
 
 So where the case was that Lord Chesterfield had written 
 certain letters to his son, containing instructions for his 
 education and course of hfe, and some containing charac- 
 ters of living persons ; and after his son's death, Lord 
 Chesterfield asked his widow for the letters containing the 
 characters, and she gave them up ; but he did not ask for 
 the other letters, nor did she give them up. Lord Apsley 
 thought it clear that Lord Chesterfield, by merely suffering 
 her to keep the letters, could not be held to have given 
 them to her for publication ; and that she must be restrained 
 by injunction from publishing such letters, unless with the 
 consent of his executors ( /). 
 
 And where a relation of the testatrix had been per- 
 mitted durino- her life to reside in her house, and was re- 
 siding there at the time of her death, which took place 
 elsewhere, and not only refused to deliver up to the plain- 
 tiff, the executrix of the testatrix, letters written to the tes- 
 tatrix by the plaintiff and others which were in the house 
 at the time of her death, but advertised them for publication ; 
 Lord Chancellor Manners, referring to Thom-pson v. Stan- 
 Jiope as an authority in point, granted an ex parte injunction 
 to restrain such publication {g). 
 
 In another case it was laid down by Sir Thomas Plumer, 
 that although copyright may subsist in familiar letters, it 
 does not follow that every private letter upon any subject 
 will be protected on the principle of copyright. And the 
 case being that the plaintiff wrote private letters to one of 
 the defendants, in the confidence, as she alleged, that he 
 would not publish or permit them to be published ; and 
 the answer of the publisher of the letters swore, that the 
 letters communicated to him were so communicated by 
 the other defendant on the part of the plaintiff, and that it 
 
 (/) Thompson v. Stanhope, Amb. (g) Earl of Granard \, Dunkin, I 
 
 737. Ball & Beat. 207.
 
 20H STAYING WROXGPrL ACT6 [pART II. 
 
 \\^^ iitLtssaiy iur liiiii to publioii them to prove that liict, 
 ami to n hut the chttrf,'e pubhcly hrout'lit ogaini^t him l»y 
 the |)hiiiitin, .>r puhhnlimj; 1'uIm.* inforimilioii. The injunc- 
 tion wiin ihitiiolveil upon the uuhwcr coining in (A)* 
 
 On this cuiic, LortI EUlon oh5enrtti in u »ub«cquent 
 onc(i*), that he uiulciittood Iiih Honor not to have ihiuxl 
 the phiintitl'H pr«»|MTty in the letters, but to have inlriuil 
 from tin- I ircuinHtaniif*, that hIh' hail nuthorii»etl, and for 
 tiial reoBon could not c«»n»plain of the publication. 
 
 In the cabc of (t'fc \. Pritchurd{h), Lord KIdon, cx- 
 pressinj; a jIouIjI as to the soundnesh of the doctrine of the 
 Court assuiniii!:; this jurisdiction ori^jinally, held himself 
 l.i.imd l»v authorily to consider tin; writer of a letter us 
 liaviii^ a (|ii;ilili«(l riyht of jirojurly in it ; and that in the 
 case before hmi, the plainlitl had such a ri^dit of projKrrty 
 in litters written to tin- d( fmdant, no net having Ixen 
 done by her to waive that li'^ht, and deprive henielf of it, 
 as to be entitled to an injunction. 11 1^ Lordnhip ex- 
 pressly repudiated the notion of the (."ourl intcrferini; on 
 nny ground of the publication of letters l>cing painful to 
 the feelings of the writer; or any other ground than a 
 r'ujht of property ; except in the case where the publi- 
 cation niipht be requisite for the purjioses of justice, as in 
 the case of Laihi Vcrcival v. Ph'ipps (J). 
 
 14. These are all the cases that I have been able to find 
 on the cjucstion, how far equity will interfere to restrain 
 the publication of letters, and it must be confessed that it 
 is not easy to draw from ihem a very definite rule. It 
 mav, however, perhaps be safe, on the whole, to assume 
 tluit they cstablisli the follow ing propositions : 
 
 1. That the wiitcr ot jjiivate letters has such a (piahfied 
 right of property i" them, as will entitle him to an injunc- 
 
 {h) Und Perceicl v. Vhiyps, 2 \c5. (^t) 2 Swans. 402. 
 
 & Bca. 10. (') 2 Vcs. 4c Ika, mpra ; tec on 
 
 (^i) 2 Swans. 415. tl»i» point pp. 413 and 426.
 
 CHAP. II.] OF A SPECIAL NATURE. 209 
 
 tion to restrain their publication by the party written to, 
 or his assignees. 
 
 II. That the party written to has such a quaHfied right 
 of property in the letters written to him, as will entitle 
 him or his personal representative to restrain the publi- 
 cation of them by a stranger. 
 
 III. That such quahfied rights may be displaced by 
 reasons of public policy, or by some personal equity. 
 
 15. An injunction will be granted to restrain the pub- 
 lication- of an unpublished manuscript (m). The ground of 
 these decisions is, that the author not having made the 
 work puhlici juris, it is as much his, as any thing else in 
 his closet {n). The doctrine appears to have been first esta- 
 blished in the case of the Duke of Queensherry v. Shehheare, 
 which arose on Lord Clarendon's history. In that case, 
 the plaintiff claimed as administrator of A., Lord Claren- 
 don's descendant, to restrain the defendant from publishing 
 the History of the Rebellion ; and the defendant claimed 
 under a delivery by A. of the original manuscript to the 
 father of another defendant, with permission to take a 
 copy, and make what use he thought fit of it. But Lord 
 Northington held it was not to be presumed that Lord 
 Clarendon meant the defendant's ancestor to have the profit 
 of multiplying the work in print, though he might make 
 any other use of it except that. 
 
 In Tonson v. Walker (o), decided in 1752, several cases 
 were cited to show that an author had copyright inde- 
 pendently of the statute (p). But in the great case of 
 Donaldson v. Beckett (q), it was finally decided by the 
 House of Lords, that an action cannot be maintained for 
 
 (m) Webb v. Rose, 4 Bur. 2330 ; (o) 3 Swans. 672. 
 
 2 Bro. P. C. 138; Forrester v. Wal- (p) 8 An. c. 19. 
 
 ker, ibid.; Duke of Queensherry v. (q) 4 Bur. 2408; 2 Br. Pari. Cas. 
 
 Shebbeare, Eden, 329. 129. 
 
 (n) 3 Swans. 680.
 
 21U STAVING WBOXGFt'l. ACTS (l ART II. 
 
 piratinp; a copyrij^ht after the expirotion of tlu* time lutn- 
 litiiiiil in the- Klutulu. lit ollu > wunU, lliut the legul title 
 of the author Ih under the statute. The cui»cs ihtreforf 
 n'frrreil to, can nflonl no nsfiiutancc in ca»f« whii li wouUl 
 tull within thi' htatutc. 
 
 in. In lUc. iiiHv ^>\ liurnei/ v. l.oii'/nuiii i r i, it wuH dctcr- 
 uinicd, c»n tht' authority ol Jiathurtt v. Kramlci/ i*i, and 
 the continued pnicticc of the House of Lords, that when 
 the S|M'iiker of the IIouhp of I^ortln hiiK niadr an order tliat 
 a particuhir imtkuii hhall piihhsh a trial wliuh han taken 
 place before that II«»uhc, and that no other |>crson Khali 
 puhlish the same, sueh party is put by the order in the 
 sanu' situation, as to the jiarticular subject of the order, a« 
 the King's printer exercising the right of the Crown as to 
 tlie |)rerogative copies. And u|>on that ground, and not 
 on any ground of literary pro|)crty, the (.'ourt of ("hancery 
 in that case restrained the defendant from publishing an 
 account of the trial of Lord Melville, contrary to the order 
 of the Mouse of Lords, until the hearing. 
 
 Ill a ciusc of Deacon v. Deacon {t), Ix)rd Eld on seems 
 to have been of opinion that it is illegal to publish part of 
 a depending case. I have not, however, been able to find 
 any case in which the precise |>oint has been determined. 
 
 17. Cases occur in which the question is not whether 
 admitting the plaintitl" to have copyright in his work, there 
 has been piracy ; or whether the plaintiff's work is capable 
 of sn|)porting a title to copyright; but whether, admitting 
 that there is copyright in some persons, the jdaintiJf main- 
 tains such a character as to be entitled to ask for the pro- 
 tection of the Court against the |)iracy. This was the 
 question in a case where a party was emjjloyed by the 
 Board of Admiralty, under the direction of the Crown, to 
 publish a work, consisting of a narrative of a voyage under- 
 
 (r) \^ Vcs. 493. V. Jxmgman, 502, 504. 
 
 (0 Indian. 1776. cited in CnTixtv (0 2 Russ. 607.
 
 CHAP. II.] OF A SPECIAL NATURE. 211 
 
 taken by officers employed for that purpose by the Crown, 
 the profits of the work to be at the disposal of the Lords 
 of the Admiralty. And it was held that the publisher had 
 not such an interest in the work as would enable him to 
 sustain an injunction against another party for republish- 
 ing (it). 
 
 So in a very late case, the agreement between an author 
 and a publisher, after reciting that the author had prepared 
 a TENTH EDITION of liis work, and the publisher was de- 
 sirous of purchasing the same; and that it was agreed that 
 a certain printer should print a given number of copies, and 
 the publisher should pay to the author for the said tenth 
 edition a certain sum ; then went on to direct that the work 
 was to be in a given number of volumes, and to he sold 
 to the public for a given price. — It was contended that the 
 plaintiff, the publisher, was not under this agreement the 
 proprietor of the copyright, within the meaning of the sta- 
 tute (54 Geo. 3, c. 156, s. 4,) but a mere licensee to sell a 
 given number of copies. The Court overruled the obj ec- 
 tion, holding that the copyright was equitably vested in the 
 publisher, on the ground that the contract was obligatory 
 on both parties ; that the plaintiff was bound to sell; and 
 therefore the author was bound to abstain from doing any 
 thing which could interfere with the act which he had 
 done. The Court therefore thought that the publisher had 
 a limited equitable right in the copyright, to the extent of 
 being entitled to be the sole publisher, until the number of 
 copies fixed by the terms of the agreement should be ex- 
 hausted. It is to be regretted that the Court did not 
 advert to the question whether the words of purchase of 
 the agreement, viz. that the publisher was to pay for the 
 edition, gave him, independently of the implied contract 
 on the part of the author not to do any act which 
 might interfere with the sale, an equitable copyright in the 
 work {x). 
 
 (u) Nicol V. Stockdale, 3 Swans. (x) Siieet v. Cater and otheis, 5 
 
 687, J\!r. 68. 
 
 p2
 
 \H. If a lecturer on any iubjccl clclivrrs his lectures 
 from u urilttii ruui|x>hitiuii, Hltcllu*rl>y reading U, or from 
 lueniury, uii iiijuncUuii will be gmiiled to rc»trum publi- 
 latioii uf tlioiit: lectures. Hut tlie pluintiff muHt |>roduce 
 the writing (y). 
 
 Am to the (|ue«tion whether copyright exi»t* ul law in 
 onil h'<*tiin'H gimpliritrr, vi/. in thr i»ubjerl multcr of lec- 
 turrn tint put iiilo wnlmg, but publii»lietl for the fir»»l time 
 by oral delivery only, without reference to any (lueittion 
 of brtiuh of tru»t or o<»nlriicl exprcHwd or iiiiplit-d, ii waM 
 fornu riy <luublful whether uny copyn};ht hubhihliHl in them 
 ul law. However, in u case before Ix)rd KIdon, hi« Lord- 
 ship seems to hiivi- thought, that if u lecturer makcH un 
 cxpresB contract with Iiih pupils that they are not to pub- 
 li>li his lectures, the (^urt would enjoin a publication 
 nuulc in breach of such contract. And it wa» decideil in 
 that case, that where {Krrsons attend aii pupiU of a lec- 
 turer to hear his lectures, they are not at lilx-rty to publitth 
 the lectures which they have heard ; though of courne they 
 may take full lujtes, ainotmting even to exact ret<»rds of 
 them, for their own use. And consequently another pcrBon, 
 who, in the absence of evidence as to how he came by 
 them, must, in the opinion of the Court, have obtained 
 them from a pupil, would be restrained (c\ 
 
 19. Till' fpicstion is now set at rest by the .J A: ') ^^ ill. 4, 
 cap. ()0, which enacts, that from and after the 1st day of 
 September, 1835, the author of any lecture or lectures, or 
 the person to whom he hath sold or otherwise conveyed 
 the copy thereof, in order to deliver the same in any school, 
 seminary, institution, or other place, or for any other pur- 
 pose, shall have the sole riuht and liberty of printing and 
 publishing such lecture or lectures. 
 
 By the 3d section it is enacted, that no person allowed 
 for u certain fee and reward or otherwise to attend and be 
 
 (v) Abtrnethyw. /fulcAinwi), 3 Law Jouro. '209. (:) IbU.
 
 CHAP. II.J OF A SPECIAL NATURE. 213 
 
 present at any lecture delivered at any place, shall be 
 deemed and taken to be licensed, or to have leave to print, 
 copy, and publish such lectures, only because of having 
 leave to attend such lecture or lectures. 
 
 But by sect. 5, the operation of the Act is restricted to 
 lectures, of the delivery of which notice in writing shall 
 have been given to two justices living within five miles of 
 the place of lecture, two days before delivery thereof. And 
 it is further provided, that the Act shall not extend to any 
 lecture or lectures delivered in any university or public 
 school, or college, or on any public foundation, or by any 
 individual, in virtue of or according to any gift, endowment, 
 or foundation. 
 
 20. Copyright may exist in translations as well as in origi- 
 nal compositions ; and therefore where the owner of a perio- 
 dical work, published in his periodical articles translated 
 from foreign languages, the publication of these in another 
 periodical was restrained, and the Court said it was imma- 
 terial whether they were made by the plaintiff or given to 
 him {a). Another point arose in this case, whether a party 
 who obtains copies of specifications from the office for 
 inrolment, and publishes them, may restrain another from 
 copying such specifications from his work. 
 
 The language of the Court on this point is somewhat 
 vague ; but as the plaintift"s allegation, which was not 
 contradicted, was, that the defendant copied from the 
 plaintiflP's work, and as the injunction against publishing 
 the specifications was refused, the case must, I apprehend, 
 be taken to have decided that specifications of patents 
 may be copied from the book in which they are first pub- 
 lished. 
 
 It has been deteraiined however (Z») at law, that a copy- 
 right subsists in an engraving made on a reduced scale 
 from the drawing appertaining to the specification of a 
 
 (a) Wyatt v. Bernard, 3 Ves. & (&) Newtmi v. Cowie, 12 Moore, 
 
 Bea. 77. 457.
 
 ■214 tTAVmO WBONOrVL ACTS [I'Aldll. 
 
 (mtcnt. And ll»<? renAoning of the Court in the 
 lerrctl to, 0|>fK<ir» to Icuu to the |>u)iitiuii ihul f , _ 
 woulil »uUi*t aUo in an mirnmwg i»>wl« f»»«n •"^h a 
 dniwmg, with or without rrductioo. Til© Utter jjoiiit did 
 
 not, h- •'■ • • • •" • - •' ' 
 
 21. Il Wtt» cnriy drtcniiiiir«l(r) that 
 provinj; niiy thmi: that it iilr«idy m iiuiu. . : i 
 
 iiifttuiicc, imthriiml plant*, fell within ll»c |»ru\ ' Uic 
 
 8 (ico. 2, chop. lU, &c., mid wnii the »ul. 
 
 ri^jht. In the cnnc rrfrtrwl to, n jK>int aroiM- ....-; 
 
 nrcrHMury t«» siip|M»rl an uijunrlion hill under that act, 
 that the plaintill nhould engrave at the f<x>t of the pnnt the 
 ilatr of the fir^l pniUinLr, and the name of ihr proprietor. 
 Lord lluriiwukc Uumi^IiI that it wan not; hut in u later 
 case Lord AivaiiUy thoiiKhl othcrwi«c (</), and the cu»c» 
 ut h»\v wrri' «(|ually coiiinuhctory (*■)• 
 
 In u latr liiHc (/) howevrr, in which all the authorilien 
 ap|M>ar to have been citcti, the Court of <x>minon Fh*a» 
 dctrrniiiH'd that an action cannot I., 
 of a pnnt untltT the 17 (»co. 3, 
 
 t'ligravetl luH name and the date of publication thereon, in 
 piiisuancc of llu« K (fc«». ii, cap. 13. 
 
 Where A. has painted a picture ami cnpraveti it, and 
 sccure<l to himself the copyrij^ht of the printit, and B. cx- 
 hihits a painting copied from one of the prints, on a large 
 scale, as a j^eculiar kind of exhibition (a diorama), an in- 
 junction will not be granted to restrain IL, until the right 
 has been established at law, altliouuh B. exhibits his copy 
 as " A.'s urand picture painted with dioramic effect;" and 
 although it may be that the sale of A.'s print is in fact 
 injured by such exhibition. The V^ ice-Chancellor said, he 
 
 (c) Blarkvell v. Harper, 2 Atk. Thompum v. Sfrntrndt, 6 Teno Il<p. 
 93. 41. 
 
 (d) Harruon v. Hogg. 2 Ves.juD. (/ ^ 12 Moon. 
 323. • 
 
 (f) Rovori/i V. Wilks. 1 Camp. 94
 
 CHAP. II.] OF A SPECIAL NATURE. 215 
 
 thought the case was not vvithm the 8 Geo. 2, cap. 13, 
 which concerned printing, selHng, and publishing, and did 
 not extend to an intention merely to exhibit with a certain 
 effect. " If," said his Honor, " A. had exhibited his pic- 
 ture as a diorama, then he might have been entitled to an 
 injunction (^)." 
 
 The statute above referred to, and the subsequent ones 
 of the 7 Geo. 3, and 17 Geo. 3, being made to protect the 
 artist, are to be considered as being in pari materia. The 
 object of the legislature in those acts, was to protect those 
 works which are designed, engraved, etched, or worked in 
 Great Britain, and not those which are designed, engraved, 
 etched, or worked abroad, and only published in Great 
 Britain ; and therefore an injunction will not be granted to 
 restrain persons from copying engravings which are im- 
 ported from abroad, where all the design and labour of the 
 artist are given, although they are published here first, 
 and are entered at Stationers' Hall ; and although the 
 parties, British subjects, so importing and entering them 
 here, are interested jointly with the foreign publishers in 
 the foreign copyright {h). 
 
 22. So in a case of a bill for an injunction to restrain 
 imitation of a peculiar label, it was held that the Court 
 will not protect a foreign copyright. And as a conse- 
 quence of that rule, a demurrer to an injunction bill was 
 allowed where the bill was by two plaintiffs, and one of 
 them was a foreigner, residing abroad, and could not show 
 any interest in the peculiar label {i), 
 
 23. The decisions under the 8 Geo. 2, and 7 and 17 
 Geo. 3, proceed on the wording of those statutes, and do 
 not affect the general question whether a foreigner can 
 sustain a copyright for a literary work not within those 
 
 {g) Martin v. Wright, 6 Sim, 297. (i) Delondre v. Shaw, 2 Sim. 237. 
 
 (/i) Page and others v. Townsend, The case is somewhat obscure. 
 5 Sim. 395.
 
 2Ifl «TATlNO WROWOPl'L ACTK [PAHT II. 
 
 ]>urtu-ular Rtatutoi, Hlirrir it ha« bt«D compoftMl by him 
 ubriiuil, but iM |>ubhi»hctl lirvt in thi» cuuiitr)' (A). 
 
 Oil thut (|ut*ktu>ii thorr Iioa not brrii any expmiH deci- 
 •ton, ulihou^h in a lute caae (/), l^rtl Abiugcr, C U., 
 rvfcmi) ■ ' - T^xne uf Ji<ich r. LomymaH(m), Iib« iiitimalcd 
 an upii ' II (utri^urr, l>ciii^ llir firftt Ui publi»li liu 
 
 work in t)ii4 cuuntry, Itaii rupyn^lit in it. And in ftno- 
 
 tb^r(n^, Uforr Sir L. Slmdwtn. V. C, hm II *. he 
 
 th<>ii;;ht thut if un Amcricun rri«-n<l Here tu wri. L in 
 
 Anicricu. und be the firit io puhlish it hrre, hm co|iynght 
 won 111 bo ^uod. 
 
 It huH Im'cii hoMcvcr dctcrniinod, thut where a piece of 
 music hu« l)cen coni|K>fve(l and pubhtihed abrood, and a 
 considerable time ufti-rwurdH ih hi»hl to u |>erHoii, who then^ 
 for the tirttt time, plll>h^hes it m ihiH country, he hun no 
 copyri{,dit. Lord Hroii^hum Haid, in the caAc referred io, 
 on ii motion to dis»t)lvo an ' ' 
 
 iif^iinst the ilefeiuhint, " It tij , , 
 
 wa.s pubhshed in France by Kalkbrenncr, or »oine one to 
 whom he sol<| it, ho h»np: n<^o n» |H14, hi\ v«-iirH l>eforc the 
 8ah> to the plumtitl. There can l>c no cjuetttion then of the 
 right of the defendant or any one cl»c to publish it in ihis 
 country (o\*' 
 
 But where an Knglish hiibj<ct obtains from a foreign 
 author the copy of his work, and publishet* it in this couo- 
 try before its publication either in this or in the foreign 
 country, he brings himself within the statutes for the pro- 
 tection of copyright (y;). And where a person thus en- 
 titling himself to the copyright of an opera complies with 
 the provisions of the Copyright Acts, an iniunction will be 
 granted to restrain another from publis-hing the music of 
 
 (>i) 1 V. v\ L. 'J[t5. Term, IH3'.». 
 
 (/) D' Almaxnt v. Boouy, 1 V. <.v (o) GuirAanif. i/on, 9 Ltw Jonr. 
 
 Col. 288. 6r«t wr. 227. 
 
 (m> Cowp. 623. ( p) DAlmuiint v. fi«Mry, 1 Y. it 
 
 (>•) BtntUy r. Votttr, MS. Mich. Coll. 288.
 
 CHAP. II.] OF A SPECIAL NATURE. 217 
 
 such opera in the form of arrangements of waltzes and 
 quadrilles. 
 
 It was objected in the case referred to, that the airs of 
 the opera, as originally composed, were not adapted for 
 dancing, and that in the adaptation of them for that purpose, 
 there was sufficient of labour and originality to bring the 
 alleged piracy within the rule of bona fide alterations. But 
 the Court was of opinion, that if there was a taking of the 
 airs or melodies, which constituted the invention of the 
 composer, there was a piracy. 
 
 24. By the 1 & 2 Vict. cap. 59, which recites, that it is 
 desirable to afford protection within her Majesty's domi- 
 nions to the authors of books first published in foreign 
 countries and their assigns, in cases where protection 
 shall be afforded in such foreign countries to the authors 
 of books first published in her Majesty's dominions and 
 their assigns; the crown has power, by an order in council, 
 to give the sole liberty of printing and reprinting in the 
 British dominions, for such term, not exceeding the term 
 of Enghsh copyright, as the Queen shall think fit, to the 
 authors of books published in any foreign country, to be 
 specified by such order in council. But no such order 
 in council is to have effect, unless it is therein stated that 
 protection for the benefit of authors of works first pub- 
 lished in the Queen's dominions has been secured by the 
 foreign power, in whose dominions the books to which 
 such order in council shall relate shall be first published. 
 The Act is not to prevent the publication of a translation 
 of anv book, whereof the author may be entitled to copy- 
 right under the Act. And no author of any book pub- 
 lished out of the Queen's dominions is to have any copy- 
 right therein in such dominions except under the Act. 
 Lastly, the Act declares that in construing it, the word 
 book shall include volume, pamphlet, sheet of letter-press, 
 sheet of music, map, chart, or plan. And the word print-
 
 X*18 MTAVI.HO WRONGPl'L ACTS [\-.\\il II. 
 
 iiig umi reprinlint; uhiill include cn}^niving or any other 
 IUL'IIickI u( liiuttl|<lyillg Cuplcrt. 
 
 iiu. WluTf in a suit for nn injunction to rt'stniin | 
 of co^)y^^;ht, tlif uijury compluujcd of liein^; of very ^ 
 nniount, it wan contended that the defendant oufjht not to 
 |»ay contJi, 06 it wa» not fit »uch a suit hIk.uUI Ix- prowe- 
 cuted to a hrarinp. It wn« held that the defend?"' ■ " -'.i 
 to have tendered the couliJ after the uijunction wti 
 and havinj; refused to do ro, he rnuBt pay the co»i« ol the 
 HUit. In the pame caH<' it was held that it wu* not neces- 
 sary, allhuut^h usual, to protlucc the piratc<l printH, or any 
 i)J tlu in, where the fact of the prints l)ein{; a piracy was 
 ullc^'ed and sworn to on the j)art of the plaintifr, and not 
 denied by tlie answer (7). 
 
 In Bailey v. Taylor {r) it wat* arj;ue<I tliat if a plaintiff 
 cannot in a ([ucstion of copv " Mbli.sh hi ' ' ■ . r« lief 
 by injuiRlion, he can have iit; and ' il ad- 
 
 mitted that there waH no jurisdiction to give to a plaintitfa 
 remedy for alle'^cd piracy, unless he can make out that he 
 is entitled to the efiuilabic inlerjmsilion by nij unction ; but 
 added, tiiat although he failed on the answer of the defend- 
 ant to obtain an injunction, he would be at liberty to claim 
 it at the hearing. The case was, as to the merits, that the 
 plaintilV had licensed the defendant's use of his copyright 
 in the defendant's 1st edition. And he allowed the 2nd 
 and 3rd editions to go on for ten years before he applied 
 for relief; and the part of the plaintiff's copyright (con- 
 sisting of tables of calculations) which the defendant had 
 taken, was a very trilling part of the defendant's work, 
 aiul it was in evidence that the tables might l>e calculated 
 in a very short space of time, and at an expense of about 
 7/. IO5. On these grounds the Vicc-Chancellor refusc<l 
 the injunction. The plaintitV. however, brouirht the cause to 
 
 (9) Fradtila\. \\(H€r,-i Uuss. .'. " ' l.us..\ m_.. <i
 
 CHAP. II.] OF A SPECIAL NATURE. 219 
 
 a hearing, and on the same grounds the Lord Chancellor 
 dismissed the bill with costs. 
 
 Where an application is made for an injunction to re- 
 strain infringement of copyright, and the Court doubting 
 the title, directs a case for the opinion of a Court of law, 
 and the Court of law certifies that there is no title, the re- 
 sult is, that equity, adopting that view, will refuse the in- 
 junction. But that does not put an end to the cause, and 
 allow the defendant to dismiss the bill without more delay. 
 The cause must go on to a hearing, if the plaintiff chuses, 
 for the judge then presiding may entertain a different opi- 
 nion as to the question of title (s). 
 
 (s) Brooke v. Clarke, 1 Swans. 550.
 
 2*20 STATINC WnOXCFfl I'-: [PAItT it. 
 
 Cli \rri i( III. 
 
 < >j Injunctions to rfitraim the Infrinijrmrnt of Patents. 
 
 I. Gnmmd i/ llu JmriMlieiUu. 7. Wkml nUmI «f tkmht mf tk* TttU 
 J. FWM#r/y m0t«»tmry «• tkmr «<a r^uuilt to ttdut* Rtf»ml «f 
 
 bluMmt TtlU. - • Injunflwn. 
 
 3. At lA« prMvni day pniaA faci« TiiU 8. H'AmI AJtdmvit r#f mmU U • 
 
 fu7^ri#>il. Applie*lian. 
 
 4. i^iiiinrtMmj M to vJUrt the Court 9. /it/Miini«ii «f«iH«l Stihmf if/Wr 
 
 iri/1 iNfrr/Vrv. anJ trA#r« nn(. Ti I. 
 
 &. Gmrral Hftult of |A# (dm. 10. Ar . <a fii/l. to 
 
 6. irfc/r» /nrii)irlli>ri no( mot*d /0r prcitul Dts^unt!. 
 
 till th* lltUTKHg, 
 
 1 . IN order to prevent irreparable iniBcliief, or tf) sup- 
 
 pn -s mulliplicMly of suits and \«'xations liti * ■ juity 
 
 intrrfcns l>v injunction io rt-hlmin the iir nl of 
 
 allr.;t(| j)atcnl rii^hts for inventions (a). (Jencrully, indeed, 
 it niav l)e stati<l that whrro a riulit of pro|Mrty is violated 
 by piratical imitation, equity has junsdiction to interfere (t). 
 The juri.'^diction, in restraining the infringement of patents, 
 is in aid of a legal right; the plaintifF coming to the Court 
 on the assumption that he has a legal right, and the Court 
 granting its assistance on that ground (c). 
 
 2. It seems to have been thought formerly that a plaintiff 
 claiming as patentee could not come into equity for an 
 injunction till he had established his right at law. In 
 Millar V. Tfii/l(fr {fl) Lord Mansfield said that injunctions 
 
 {a) y,de 2 Story, Kq. Jut. 2<»9 ; \.VK 
 
 Jer. Kq.Jur. IJ.3, ch.2,s. 1, p.327 , (f) Per Lord CoUenham, C. in 
 
 1 Fonb. Kq. 34, noii>. Riffni v. Jnnet, 4 My. At fr. 4*16. 
 
 (6) Shtnfv. C.xil«, 1 Russ. & M. (d) 4 Burt. 2303.
 
 CHAP. Ill,] OF A SPECIAL NATURE, 221 
 
 ill Chancery were never granted on motion unless the 
 legal property of the plaintiflf was made out, nor continued 
 after answer, unless it still remained clear (e). And this 
 appears in truth to have been the old doctrine of Chancery, 
 for in an anonymous case in Vernon (/), Lord Keeper re- 
 fused to grant an injunction at the suit of the King's pa- 
 tentees, to stay the sale of English Bibles printed abroad, 
 unless the patent had been tried at law {g). 
 
 3. But at the present day it is not generally necessary 
 that the plaintiflf should establish his right at law in order 
 to come into equity, the right appearing prima facie on 
 record by the letters patent (/i). And in the great case 
 of the Universities of Oxford and Cambridge v. Richard- 
 son (i), which turned on the patents granted to the Uni- 
 versities for the special privilege of printing and selling 
 Bibles, Prayer-books, Sec. in concurrence with the King's 
 printer. Lord Eldon denied the rule stated by the judges 
 in Millar v. Taylor {k) as to injunctions, and referring to 
 Boulton V. Bidl and several other cases, stated the prin- 
 ciple particularly in regard to patents to be, that if a 
 party gets his patent and puts his invention in execution, 
 and has proceeded to a sale, that may be called possession 
 under it; however doubtful it may be whether the patent 
 can be sustained, equity will hold that possession under 
 a colour of title is ground enough to enjoin, and to continue 
 the injunction till it shall be proved at law that it is only 
 colour and not real title (/). In the principal case the 
 Court doubted whether the plaintiffs, the Universities, had 
 title in themselves alone to sue. But the act of the defend- 
 ants being clearly illegal, an injunction was continued 
 till the hearing to restrain the defendants from printing and 
 publishing Bibles, &c. 
 
 (e) 4 Burr. 2400, Raincock, Dick, 647 ; and see 2 Atk. 
 
 ( /) 1 Vern, 120. 391; Anon. 1 Ves. sen. 476. 
 
 (g) See also Hills v. University of (i) 6 Ves. 689. 
 
 Oxford, 1 Vern. 275. (k) Millar v. Tayler, 4 Bur. 2303. 
 
 (/i) Mitford's PI. 147; Hicks v. (0 Per Lord Eldon, 6 Ves. 707.
 
 •J.'J ttTAVmO WRONGFUL ACT6 [VAliX II. 
 
 'i. Whether the Court will ^rant on injunction t>n the 
 priiHi't j'luie lule of ll»e |ml4-nttc, nr will huid liitn to luw 
 fintt, iie{)ciidi on a careful coDitidcrutiou of (ho circuin- 
 Hlanrrit of euch particular case. 
 
 If llurr hiiH Iktu |iotiM>MMun for u considerable time 
 under Icttrnt |Mitiiit, tdiliou|;h the Court way have ( 
 drniMc i|.)uhl wiMtlirr ihf |>uti>nt i« \-Blid, it Mill ii. 
 thi-ji hs pHilrct It I'V irinit"''i"ij uiilil the ni;hl run !»<• i 
 ut law (in). 
 
 In llotdton V. liuil, ilii: jaaiuiilin li;i<l ' 
 twenly-sfM-n yrurn ; iind uii nijunclMJii 1. 
 by them, timt the (jut«lion of the validity of the pati-iit 
 iuii;hl he tiitd at law. In an nclioii tli- ' \. i 
 
 (lilt, subject to u case reserved fur the oji, I » mt, 
 
 and on the argument of that case, the Court wa* equally 
 divided. ( )n th«! tlcfendanls ther«u|Kjn inovn 
 the Lord Chancellor refused the nioliun, an ; 
 to put the plainlilV on any terms in bnnging a further 
 action. 
 
 Hut ahhouijh a patent should be of loiij: -t .i.<li'.<r. yet 
 if there bus not been undisturbe<l exclusive n of 
 
 long duration, and doubt is thrown on the title, thi: Court 
 will refuse an injunction (h). And althoiij;h on a trial of 
 the right at law a verdict is found for the plaintitT, yet if 
 a rule nisi for a new trial is obtained, the Court will still 
 consider the right undetermined at law. And if a patent 
 has been but recently granted, and its validity has not 
 been established at law, and the defendant denies and 
 throws doubt on such validity, equity will not in general 
 act upon its own notions of the validity or invalidity of the 
 patent, and grant an immediate injunction without more(o), 
 
 (.,. , V. i . ; 1 \ .. . , , ; applied ibcm to a ca*e 
 
 130 ; Bouhon v. Bull, 3 \t*. 140 ; on demurrer, p. 388, tt uq. 
 
 Hill ». Thompson, 3 Mcr. 622; tee (n) Collard v. Atitom. A My.u L:. 
 
 also Kay v. Marthall. 1 My. & Cr. 487 ; Curti* *. CulU, 8 L»w Journal, 
 
 373, in which Lord Colienham, re 
 
 ferring to these cases, .Tpproved tht: liill v. Thcmpu^, 3 Mer. 622.
 
 CHAP. III.] OF A SPECIAL NATURE, 223 
 
 but will send the plaintiff to law before it will grant an 
 injunction. The Court however possesses and exercises 
 great latitude. In Bacon v. Jones (p), Lord Cottenham 
 said, "Where the application is for an interlocutory in- 
 junction, several courses are open. The Court may at once 
 grant the injunction szw2p/i«7er without more; a coursewhich 
 though very competent to the Court, is not very likely to 
 be taken, when the defendant raises a question as to the 
 validity of the plaintiff's title ; or it may follow the more 
 usual, and, as I apprehend, more wholesome practice in 
 such a case, of either granting an injunction, and at the 
 same time directing the plaintiff to proceed to establish 
 his legal title, or of requiring him first to establish his 
 title at law, and suspending the grant of the injunction 
 until the result of the legal investigation has been ascer- 
 tained, the defendant in the mean time keeping an account. 
 Which of these several courses ought to be taken, must 
 depend entirely on the discretion of the Court, according to 
 the case made {g)." 
 
 If, however, an injunction has been granted in protection 
 of a patent, of which the exclusive enjoyment has been 
 undisturbed for several years, and the defendant is guilty 
 of great delay in coming to dissolve it, the Court will not 
 press on the plaintiff to try his right at law at an incon- 
 veniently early period (r). 
 
 It was held in an early case (s) that on a conflict between 
 parties both claiming under patents, the Court could not 
 grant an injunction till the rights had been tried at law; 
 and I am i^ aware of any modern decision overruling 
 this doctrine as to a conflict between two patents. 
 
 5. From the cases referred to, it will be perceived, and 
 indeed it flows almost as a necessary consequence of the 
 doctrine that equity only interferes to restrain the infringe- 
 
 (p) 4 My, & Cr. 433. Journ. 188, 
 
 (g) Vide 4 My. & Cr. 436, (s) Baikett v. Cuniwighame, 2 Ed. 
 
 (r) Bichford v. Skewcs, 8 Law 137,
 
 •224' RTAYl NO WRONGFUL ACTS [I'AUTII. 
 
 ment of a patent a« ancillar)- to the legal right, that wUcr- 
 ever thiTf iH uny tonKKlt-nihlu duuht ua to the vahihly of 
 tho |mtfiil at law, uii injunction li either not granted at 
 all, Df it» . ' itiil on terniH, in order to prcvi nl irrc- 
 
 parahlf dui; i -te ihe title ran be tried ul law. In a 
 
 cane already referre<l t»> Mveral timcN. the Ixird Chan- 
 cellor ol)Hrrve«l that he never had yrunted, and pruhahly 
 never wtnild gnint, an nijiinctioii to reMliaui infiiii;;eiin nt 
 of a patent, without putting the plaintili' to try the right 
 at law. if the defendant denired il(0- 
 
 IJijt it KeeiMH that though the bill hh«)uld not make a 
 case for an injunction, yet if the answer doert, and docg not 
 imiM-arh the validity of the patent, an injunction may be 
 grunted on the answer (m). 
 
 G. The ultimate object of n bill in equity to protect a 
 patent is u pcr|H!tual injunction, which can in geiicrul only 
 be granted at the hearing. Ami it haa Inren very lately 
 decided, that where a patentee hies a bill alleging infringe- 
 ment, and praying an account and |)er|xtual injunction, 
 but ilo<"< not immediately or within any reasonable time 
 ;ip].lv Im an interlocutory injunction, he cannot have a 
 perpttu-.il injunction nt the hearing, if the defendant raises 
 a (juostion as to the validity of the title; nor will he be 
 allowed to retain the bill with liberty to bnng an action ; 
 for the Court will not permit the plaintiff to delay to the 
 hearing the trial of the legal right which hemiuht have had 
 at any time after filing the bill, an<l thus to put the de- 
 fendant in a position to have a chancery suit hanging over 
 him for years, in the result of which he may have to 
 account for several years* profits. The course the Court 
 will adopt in such a case, is to dismiss the bill with 
 costs (.r). 
 
 (t) Bacon v. Jones, MS. 13 July, (x) Boron v. Janet. 1 Reav. 382 ; 
 
 1839. S. C. OD appeal, 4 My. & Cr. 433. 
 
 (u) Curtis V. Cuttf, 8 Law J. 184.
 
 CHAP. 111.] OF A SPECIAL NATUPtE. 225 
 
 7. But as an injunction suit to restrain infringement of 
 a patent rarely comes to a hearing, the point generally 
 calling for consideration in reference to injunctions on this 
 subject, is whether there is such an extent of doubt on the 
 title, or on the right of the plaintiff to ask for assistance 
 in support of it, as to induce the Court to refuse an injunc- 
 tion, or to grant it only on terms. In Harmer v. Plane{y), 
 the plaintiff had a patent for a machine for the manufacture 
 of woollen cloths ; and before the expiration of that patent 
 obtained a further patent for improvements on the machine 
 which was the subject of the first. The second patent 
 recited the grant of the first; but the specification of the 
 second patent incorporated the description of the original 
 machine, not distinguishing what were the particular im- 
 provements which formed alone the subject of the second 
 patent, so that a person reading the specification only of 
 the second would not have known that there were two 
 patents, but would have believed that the patentee was 
 protected in the use of the original machine as well as the 
 improvements, until the expiration of the second patent. 
 The Lord Chancellor said he felt very considerable doubt 
 whether the patent could on that ground be sustained, but 
 on the ground of length of possession {z), notwithstanding 
 that strong doubt, sustained an injunction, putting the 
 plaintiff to try the title at law without delay («). 
 
 But it is clear that where a patent is for improvements 
 on an existing thing in public use, the specification should 
 distinguish the particular improvements from that which 
 is old ; and if it describe the whole as one thing without 
 making such distinction, the patent will be bad {h). And 
 where a patentee does not fully enable the public by his 
 
 iy) 14 Ves. 130. ficient at law, 2 East, 101. 
 
 (:) The second patent bore date in (/;) M' Farlane v. Price, 1 Stark. 
 
 1794, and the case came before the 199 ; Manton v. Muntou, Dav. Pat. 
 
 Court in 1807. Ca. 349. 
 
 (a) The specification was held suf- 
 
 Q
 
 22G HTAYING WROXGFVL ACTS [PART II. 
 
 ilericriptioi) t» uhtniii the inntchaii* re(|iiiiiito lor pmc(ii«iiig 
 the invention, uii injun(ti«>n cunnot W hUittuinetl. Thus 
 whrrr an invrnUoii cuiiaihtrd |)nnci|nilly in the a|>|>Iioatioii 
 of ti |KTuhiir kind of white kiid not known in the trade in 
 thiH rountry, and only inifxirtcd from Ocnnnny, and it >%ni« 
 <le«enlHil in the H)«e<'iftcatiMn nn the " finc»t nn<l pure«t 
 chcniicnt white lead," hy which name it wa« n«>t known, 
 and rotild not l>o ohtuinrd in this country, an injunction 
 ohlaim-d ex p<trtr wuk <liH»ol?ed(c). 
 
 8. To oljtnin an injunction ex parte nj^^inKt an alleged 
 infrini^cr, th<' phiintifVou^ht to swear at the time i>f making 
 the npphcation, to his belief tliat he is the ori'jiiial in- 
 ventor(^/) ; for although when he obt;iined hi« puient lie 
 might have very honestly sworn vla to his b<li' ^ 
 
 being the fact, yet circumstances may have bu! , . .-!y 
 intervened, or information have been communicated, suffi- 
 cient to convince him that it was not his own original in- 
 vention, and that he wa^ under a mistake when he made 
 his previous a|)pIication. And where a patentee Ijoh not 
 accompanied bis bill by a sutlicient affidavit on this (Mint, 
 and fails in sustaining bis injunction on other grounds, it 
 will be dissolved with costs on thisfe). 
 
 'J. \\ lu'ie a patrntcc has established his title at law to 
 an exclusive privilege, equity will restrain other j)ersons 
 from selling after the expiration of the patent, as well as 
 before it, articles pii-atically made during the continuance 
 of the ])atcnt (/). 
 
 10. It may not be improper to state hero, although it is 
 strictly a point of pleading, that in a bill for an injunction 
 
 (i) SlHTZ V. De la Uue, 5 Hus», {t) Stun v. De /i J?t«, 6 Riui, 
 
 322. 322. 
 
 (</) 3 Mcr. G24 ; Stun v. Dt U (J') CrouUy v. Bet-erUy, 1 Ruh. 
 
 Hue, 5 Russ. 322. & My. 166, n.
 
 CHAP. III.] OF A SPECIAL NATURE. 227 
 
 to restrain infringement of a patent, it is not necessary, 
 for the purpose of preventing a demurrer, to set forth 
 the specification or any part of it ; it is sufficient if the 
 plaintiff alleges that he has, by a specification duly en- 
 rolled as required by the proviso in the patent, particu- 
 larly described his invention and the manner of perform- 
 ing it ig). 
 
 (g) Kay V. Marshall, 1 My. & Cr.373 ; Westhead v. Keaiie, 1 Beav. 287". 
 
 q2
 
 •J-J8 
 
 8TAYI.VG wnONGFlL ACTS 
 
 fPAKT II. 
 
 ( llAl'll.i: I\'. 
 
 Of Injiintlicns to rtslfitiit tin /'uhlnitfit'ii oj yunf /tivni- 
 (inns, anil the I'se of ituothtr's Same or Dcsii/tuttiou ; 
 and thf Imititl'wn of Tradr Marks. 
 
 I. GtHtratly an Jnjunelion cannot 6« 
 f^ranlfi to rtttrttin lh« V*e or 
 Commiinienlion !>/ a $*crtl liit<n- 
 (ii>ri. 
 
 •J. /lilt mail, uhrn Uf/enilant hat bf- 
 comeJraiiduUntlii pi<MfUfil of it. 
 
 3. Wlitilitr an Injunclwn eoiild In 
 
 granleti in Ant of an Agrttmtnl 
 to keep a i>tcr*t. 
 
 4. Injunctiont againti Imitalton rj 
 
 Trail* Warlu tthtrt tl I'l frmuiu- 
 
 lent 
 H'hrrt thfM U me h'ftud. 
 Injunrliont to rtttrain I'm ojf a 
 
 parlnetttiip Sltil* ; or carrying 
 
 pn a Tra' ' " fcitfc 
 
 hat htfii i '■■ 
 
 Dburialuni ••>i I . tllll. 
 
 I'arttf aikiiig l^i' • mini 
 
 not himulj hai* deeeirtd the I'nb- 
 
 lie. 
 
 1. ( I I.M.H A I.I.N' sj)(:ikin;r, a person cannot liave an ex- 
 ilii.'-i\i' uii'iJfitv 111 a scent oj" trade, or in a particular trade 
 MKuk or designation. There are, however, cases in which, 
 tnidcr particular circumstances, a Court of equity, without 
 saving that the phiinlin' has for all j)nipo>es a right to l>c 
 protected aiiainst invasion of alleged lights of that nature, 
 will hold him entitled to protection against invasion of a 
 j)articular kind. 
 
 It has heen deternuned that an injunction wdl not l>c 
 "•ranted to restrain a j)arty from using or making known 
 a secret invention, communicated to him by another on 
 particular conditions, for the obvious reason, that while the 
 invention remains a secret, the Court has no means of 
 iudirinf, whether if it were made known to it, a case would 
 be made for an injunction ; and if the invention is niade
 
 CHAP. IV.] OF A SPECIAL NATURE. 229 
 
 known, the very groundwork of an injunction is instantly 
 destroyed, because all the world would have as good a 
 right to use it (a). And where a bill alleged that the de- 
 fendant made and sold a medicine identical in composition 
 and quality with the secret medicine of the plaintiff, a 
 demurrer for want of equity was allowed, the Court saying 
 there was no right of property properly so called in a 
 secret medical recipe(5). 
 
 a. But cases of this nature are to be distinguished from 
 cases where knowledge of a secret invention is fraudu- 
 lently obtained. Thus, where a person being possessed 
 of a secret medicine, employed another as assistant in his 
 general business, under an express agreement that he was 
 not to be taught the mode of composing the secret medi- 
 cines, and the assistant obtained, by breach of trust, a 
 knowledge of those medicines, he was restrained by in- 
 junction from using or communicating them (c). 
 
 So where one agrees with another to take him into 
 partnership for the manufacture of a medicine made ac- 
 cording to a secret recipe, and on the faith of such agree- 
 ment instructs him in the secret, and puts him in pos- 
 session of the medicines, the Court will so far carry the 
 agreement into effect, as to restrain the party from selling 
 the medicines, or otherwise interfering in the management 
 of the business, against the permission of the other party ; 
 but as to the alleged secret, if the defendant by his af- 
 fidavit insists that it is not a secret communicated by 
 the plaintiff, he will not be restrained from divulging it ; 
 and if it had been originally the plaintiff's secret, and 
 the defendant had already divulged it, an injunction 
 would not be granted, because then it would be of no 
 iise(ff). 
 
 (a) Newberry v. James, 2 Mer. (c) WwaU v. Winyard, 1 Jac. & 
 446. " W. 394. 
 
 (b) Canham v. Joiies, 2 Ves. & Be. (d) Williams v. Williams, 3 Mer. 
 218. 157.
 
 230 RTAVixn u-noNoriT Acm [pakt ii. 
 
 '■'•. ^^'llt•tl^er, if a |>ar(y had by contract promJKed to keep 
 a siTiit, tiji' Court would, in the cxcrciti*' of its jurisdiction 
 to dfcrtr tlie sjiffrilic prrformance of uj^rrcmeulK, n-strain 
 liiui from diwIoHinf; tho Hcrrct tlmt he had so contracted to 
 ki'cj), in to \>r dotd>tcd (f/^. Whatever niif;ht Ik- the de- 
 cision on principle, it iH clear tliat u« regurdn any practical 
 use of an injunction in wuch a cum, the masoning of the 
 Court in Xrirhfrrtj v. J<tmrs would l)e np]>licahle ; for the 
 ('ourl could not uscertuiu wlullier the dctcndaut wan i^oing 
 to infringe the terniK of the contract by divulging the por- 
 ticular secret, the subject of the agreement, without evi- 
 dence of what tlmt f^ocret was ; and the communication of 
 such evidence would of itself cut away the ground for an 
 injunction. 
 
 I. \\ iili n^giinl to the lighf \o protection in the use of 
 trade marks, and gcncndly in the enjoyment of a particu- 
 lar trade drsii;nation or reputation, it may be inferred 
 from some of the cases, that a party cannot acquire, strictly 
 speaking, any exclusive title to a particidar trade mark op 
 sign; but that the Court enjoins on tliis principle, that it 
 will not allow a party to commit a double fraud, by hold- 
 ing out to the public marks and signs by which he induces 
 the belief, that they arc dealing with a person difllrent from 
 the one they arc actually dealiu!;;; with, and avails himself 
 of the reputation acrpiirod by another. 
 
 That the Court will interfere against this sort of fraudu- 
 lent use of another's name or reputation, is now well esta- 
 blished by many cases. 
 
 In a case cited in argument in Canhnm v. Jones, where 
 the defendant having sold his riuht in a medicine to the 
 plaintitV, set up the manufacture and sale of another under 
 a similar description, and in his advertisement adopted 
 verses which had been attached to the original medicine, 
 an injunction was granted (e). 
 
 So in a case cited by Lord Henley, in his treatise on in- 
 
 (d) 3 :\Icr. 160. (*) Stdon v. Senate, cit«d 2 Ves. & Ika. 220.
 
 CHAP. IV.] OF A SPECIAL NATURE. 231 
 
 junctions (f), a manufacturer of blacking was restrained 
 from using labels in imitation of those employed by the 
 plaintiff. And in a late case it has been determined, that 
 a manufacturer will be restrained from using certain letters 
 and figures with which a patentee was in the habit of mark- 
 ing his patent articles {g). 
 
 The leading modern case, however, on this subject, is 
 Knott V. Morgan {h), in which the doctrine was carried to a 
 great length. In that case the plaintiff was shareholder of 
 a company who had established omnibuses of a somewhat 
 novel arrangement, and designated by peculiar marks and 
 appointments, and in particular, by the title painted on 
 them of "London Conveyance Company." The defendants 
 had imitated the style and appointments of the plaintiff 
 in almost all respects, particularly in painting on their om- 
 nibuses the words " Conveyance Company," and " Lon- 
 don Conveyance Company." On being remonstrated with, 
 they introduced certain colourable variations, but in such 
 a manner as not to be generally visible to the pubhc ; as 
 for instance, they introduced between the words " Con- 
 veyance" and '* Company" the word " for," in very small 
 characters. On this state of circumstances, Lord Lang- 
 dale, M. R-., after disposing of a technical objection, said, 
 " the only other question is, whether the defendant fraudu- 
 lently imitated the title and insignia used by the plaintiffs, 
 for the purpose of injuring them in their trade ,• and upon 
 the affidavits and evidence before me, I have not the least 
 doubt that the defendant did intend the public to believe 
 that the omnibus which he painted and appointed so as to 
 resemble the carriages of the plaintiff, was, in fact, an om- 
 nibus belonging to the plaintiff and the other proprietors 
 of the London Conveyance Company. It is not to he said 
 that the plamtiffs have an exclusive right to the words 
 " Conveyance Company," or " London Conveyance Com- 
 
 (/) Day\. Dal), Eden on Injunc- Journ. 161. 
 tions, 314. CO 2 Keen, 213. 
 
 (g-) Ransome v, Bentall, 3 Law
 
 232 STATIHO WROKQPIL ACTS [I'AIIT II. 
 
 pnny," ui any «jthcr words. But they have n rii:ht to cull 
 ii]>uu tills (xtiiit tu iL-httuin the (leiiriKlaiit iVotit fiaiulu- 
 leiitly iiHin^ preciHcly the game wurdtf und devicen, which 
 they have lukj-ii for the purjMjtie of diHtin';;;iiiKliiii^ their pro- 
 perty, tiiid lher«hy depiiviii^ ihein of llu- fair profits of their 
 btmiiirHM, hy nttmetiiij; cuHtom on the fulne rcprcKentation, 
 that carriaueH iially the defeiidaiit'h, iHrlnii^ to and are 
 under the iii:in:i<;rinenl of the plaiiilill." IIih Lordxhip ac- 
 conlingly i;miited nn injunrtiuii to rcHtmiii the defendant 
 front n»in|; any onnnhtis lia\in;; painted, print* d, KL;ini|M*d 
 or written tluieon the words or nunich " London C <;nvey- 
 ancc," or " Oiipnal Convcyunce for (x>nipany/' or any 
 other names, words or ileviees, |miiited, stanijied, printed 
 or written thereon, in such manner as to form or be u co- 
 lonr.ihle imitation of the names, words and devices, painted, 
 stamped, printed or written on the oninihiises of the plain- 
 till'. And on appeal, the Lord ('hancellor alHrme'l this 
 order. 
 
 5. In Millint/lott v. Foxii), the doctrine was caincri a 
 slop further; for that case seems to establish that fraud in 
 the iiiiitatiuu i>f a trade mark is not necessary to entitle 
 the plainlill'lo protection. Tlic plaintiffs, in Milliiujtun v. 
 ]\)\ , had used certain marks on steel manufaelurcd by 
 the in for a |_'reat length of time; the defendants had u.scd 
 the same marks, in ignorance of the fact of any exclusive 
 claim by the j)laintins, or even of the existence of the 
 plaintiffs; ami it was proved that the use of those marks 
 was in the trade very generally, in conversation at least, con- 
 sidered as indicative not of particular makers, but of parti- 
 cular qualities of steel. Lord Cottcnham, C, held, that 
 the plaintiff's had a title to the marks in (piestion, and were 
 not deprived, by the circumstance that the defendants had 
 used it without fraudulent intent, of their right to the 
 marks and to the assistance of equity ; and a perpetual 
 injunction was decreed. 
 
 (.) 3 Myl. .V < r. :4tH.
 
 CHAP. IV.] OF A SPECIAL NATURE. 233 
 
 The same point had previously arisen in a case of Mot- 
 ley V. Downman{h), but did not receive an express de- 
 cision, as the case went ott' on another point of considerable 
 nicety. Certain tin plate manufacturers had established a 
 manufactory at certain works, and had there for a long 
 series of years marked their plates with the letters " M. C," 
 and the plates manufactured at those works became known 
 in the market by the name of the " M. C. Tin Plates." At 
 the dissolution of the partnership, one of the partners, who 
 had been so only for a few years, took a lease of the works, 
 and there for some time used the mark " M. C. ;" he then 
 removed to another place, and there continued to manufac- 
 ture and to use the same mark, retaining, however, his lease. 
 The original works remained closed for about nine years 
 after the termination of the lease, and then the lessor re- 
 let them, and the new lessee commenced manufacturing 
 and using the marks " M. C ;" on which the original lessee 
 filed his bill for an injunction, alleging that he had ac- 
 quired an exclusive right to the mark " M. C. ;" so that 
 the question was whether the plaintiff, who had originally 
 derived, as lessee of the works, the benefit of using the 
 mark, which, at any rate, until then had attached to the 
 place, acquired by so using it as such lessee, not merely 
 the personal right to use the mark in common with the 
 landlord, but the exclusive personal right. The Lord 
 Chancellor gave no opinion on the legal right, and dis- 
 charged an order which had been made by the Court 
 below for an injunction, giving the plaintiff liberty to 
 bring an action, the defendants not to be prejudiced in the 
 meantime. 
 
 6. Under this head may also be ranged cases upon the 
 use of a partnership style ; and those where a trader has 
 sold the goodwill of his business, and the question is under 
 what circumstances he is afterwards justified in carrrying 
 on the same business in the same place. Of the former 
 
 (k) 3 Myl. & Cr. 1.
 
 234 "TATIWO WRONGFUL ACT- fPAUT II. 
 
 kiiui IK :i lair .asri/), in wliifh fi finn liad uctjuitx*! -j^u-aI 
 rrptitutioii as juMinl iiiuk«'tH, iiikIlt tin* fttyleof '* HriK»kiiuiii 
 and LtuiG^tion/' nml (lie right to uto the fltylc of the firm 
 inissin'^ to the \%i«U*\v <»f l.«n<4«lon after hi« tiealli, Hhe 
 cnrriitl un the bunnir^H in coj»ortnep»hn» with h., uikUt the 
 Mime Htyle ; it wnc hehl that on her tienth, the ri^ht to tine 
 the Htyle of the firm pa««eH l>y Hurvivorrthip to the Hur\ in n.- 
 pnrtiuT H., ami not to the next of kin of the ori;.ii. i! 
 manufacturer, Lnngclon ; nnd therefore I)., continuing n\\> i 
 Mr*. l.angtIon'H death to cnrry on (he hiiHincHd under the* 
 style of*' IxMYi!! fc Co. wuceessors to I^rookman and I.aiif;- 
 don," waH luld entitled to nn injunction to rcHtmin one A. 
 I.nn'^don, who claimed to Ix; the next of kin of I.angdon 
 the ori'j^inal pencil maker, from cnrryinLj on the hiniine-s ..f 
 pencil ninkin^, under the style of " Prookinan and K;iii_;- 
 don." ( >f the second kind is the case of Cruttwelly. 
 Li/c{ni). In that case the (lefrndant had Ik' ! m 
 
 carrier, and became bankrupt; the ashij;!. . jn 
 
 business, with the <;ootlwill ; afterwards the bankrupt ob- 
 tained his certificate, and recommenced business ; and he 
 then staled both by advertisement and by handbills, that 
 he had been reinstated by his friends in the carrying busi- 
 ness, and informed the public that his waggons set out at 
 the usual hour; and described the course of their journey, 
 which included the line over whicli the watrgons of the 
 original business travelled. It was held that this was no 
 more than asserting his right to carry on a like trade with 
 that sold, and did not amount to holding himself out a.s 
 carrying on the ])urchaser's trade, and conserpiently Ix>rrl 
 l-!ldoii refused to grant an injunetion to restrain him. Ibit 
 if the conduct of the bankrupt hail been such as to amount 
 to a fraudulent representation, tending to lead the public 
 to imagine not merely that he was resuming the purpose 
 of obtaining trade, but was actually carrying on the iden- 
 tical business which he had sold, it would have been other- 
 wise («). It m^y perhaps be thought that the distinction is 
 
 (/) J^uis V. Ungdon, 7 Sim. 421. (.:) 17 Vcs. 341, 342, 
 
 (m) 17 Ves. 335.
 
 CHAP. IV.] OF A SPECIAL NATURE. 235 
 
 somewhat refined, wliich makes it lawful for a party liaving 
 sold the goodwill of a business, to set up in opposition to 
 his vendee in a business conducted in the same place, and 
 for all practical purposes the same ; and which makes it 
 unlawful for him to hold himself out as carrying on the old 
 business. For in either case, it is tolerably clear that the 
 vendee must be materially injured, and has not in fact 
 what he intended to purchase. The distinction, however, 
 if closely examined, will appear to be founded upon prin- 
 ciples of justice. For the sale of a goodwill cannot, in 
 the absence of express stipulation, amount to any evidence 
 of intention or promise on the part of the vendor to give 
 up his natural right of carrying on what trade and in what 
 place he may choose; and the injury the vendee suffers, 
 arises not from the invasion of any right of his, but from 
 the circumstance of another person exercising his own 
 right ; whereas if the vendor holds himself out as carrying 
 on the old business, he is in fact availing himself of that 
 reputation or name which is the exclusive property of the 
 purchaser ; so that in that case the purchaser suffers da- 
 mage, not by the accident of another being his rival, but 
 by reason of a direct invasion of his rights. 
 
 7. Before concluding this subject, it is proper to notice 
 an old case (o), which has been much relied on in the argu- 
 ments in cases upon trade marks, to prove that a party 
 ought not to be protected in the exclusive use of a trade 
 mark. The case referred to was, that the plaintiff claimed 
 the exclusive right to use a particular stamp on his cards ; 
 and Lord Hardwicke said, that he knew no instance of 
 granting an injunction to restrain one tradesman from 
 using the same mark as another. But this observation 
 must, it is submitted, be taken with reference to the case 
 before the Court. It appears by the report in Atkins (p), 
 that the plaintiff's title, if he had any, rested upon a char- 
 ter ; the Court held that to be clearly an illegal monopoly ; 
 
 (o) Blanchard v. Hill, 2 Atk. 484. (p) Ihid.
 
 i?3() >TAMN<i WIUJNtJIl L ACTh (I'AHTll. 
 
 and it \\;i> ii'i allc'^ttl on tlio part of tlu' plainliH', tlial In- 
 liud tisrd lluf stiuuj» t<» huch an extint, that cards holil with 
 it uc(|iiircd l)V that nu-ann in tlx- nuirkcl tin- rcputution of 
 bfing lirn. 'I'lu- caHf, ihcrcfoir, wuh huu|>ly that thr jihiin- 
 tttr ciunurd under u particular lilU* which wah hiUi had, 
 and (hd not hhow anv other tiilc. Tht- dcciiiion wat» on iht* 
 titU> as < hiiinant under a charter, and the |Miint, whether a 
 title could Ik: accjuired hy (••niiecliie^' liy lonj; continued 
 exclubivc use a particular mark with tlie reputation of u 
 particidar tn\<ler, <lid not call lur ci receive any decision. 
 This case is not therefore, it is hulniiiit.d, inconbisleiit v\itli 
 the modern cases on the Hubjccl 
 
 S. It mu>l be ohMiveil, also, that the rule that a pajty 
 may by usin<; u particular trade mark or designation 
 accjuircsuch u right in it as to prevent another (wrson from 
 sidling under the same designation, is, howev<r, subject to 
 the general rule o\' c(juity, that a j>ers*)n will not be pro- 
 tected in ccjuitv, who does not come before the Court on a 
 ease founded on truth. And therefore in a case where the 
 plainliirsold a jiarticular tea under the designation of II<jw- 
 (lua's niixturc. holiling it out, contrary to the fact, as a mix- 
 ture made in ('iiiiia by ^ Hong merchant of the name of 
 Ilowqua, whereas in truth it was mixed in Ivngland by the 
 plaintitV himself, the Court refused to protect him by in- 
 junction against the .sale by the defendant of teas under 
 the same designation {fj). 
 
 (9) I'iddiiig V. Uout, 8 Sim. 477.
 
 CHAP, v.] 
 
 OF A SPECIAL NATURE. 
 
 237 
 
 CHAPTER V. 
 
 Of Injunctions to restrain Nuisance. 
 
 1. General Principle of the J urisdic- 
 
 tion, 
 
 2. Ancillary to the legal Right, 
 
 3. Injunction not grunted to prevent 
 
 Obstruction of Prospect, 
 
 4. Order not made on Motion to pull 
 
 a Thing down, 
 
 5. Proper Couise of Proceeding to 
 
 stay Nuisance, public or primte, 
 
 6. What constitutes sufficient Nui- 
 
 sance to justify equitable Interfe- 
 rence, 
 
 7. What a sufficient Allegation of 
 
 Nuisance, 
 
 8. Of darkening ancient Lights. 
 
 9. Of Nuisance in respect to Markets. 
 
 10. Jurisdiction oj' Commissioners of 
 
 Sewers. 
 
 11. Injunction to restrain Nuisance, 
 
 resulting from Order of Magis- 
 trates in Quarter Sessions. 
 
 12. No Injunction against contingent 
 
 Nuisance, 
 
 13. Of Purpresture. 
 
 1. The jurisdiction of equity to grant relief by injunc- 
 tion against nuisance, whether public or private, is 
 founded on the right to restrain the exercise or the erec- 
 tion of that from which irreparable damage to individuals 
 or great public injury would ensue (a). It is now quite 
 settled {b), although it is exercised with great caution (c). 
 
 In an early case it was laid down that every common 
 trespass is not a foundation for an injunction, when it is 
 contingent and temporary; although if it continuessolongas 
 to become a nuisance, the Court will interfere (f?) ; and it 
 has been decided in later cases that the Court will not in 
 general interfere to suspend the operation of manufactories 
 
 (a) 3 Atk. 751; and see Eden on 
 Injun. 222; and Red. PI. 144. 
 
 (b) Red. PI. 144 ; Attorney General 
 V. Nickel, 16 Ves. 338 ; 1 Dick. 164 ; 
 and see Lord Brougham's observations 
 
 in Blakemore v, Glamorganshire Canal 
 Company, 1 My. & K. 181. 
 
 (c) 18 Ves. 217; 19 Ves. 622. 
 
 (d) Coulson V. White, 3 Atk. 21.
 
 238 BTATi?rn wronc.i-mi. actij [part u. 
 
 that cniuiut Ijc eHtaltli.sliril uithuut immense cxjJciHiitiuv, 
 upuii ail tx parte applicalion, Init will injuire notice ol 
 motiutt to be given (e). 
 
 2. 'I'll, jurisdiction of Chancery to restrain nuii»oncc by 
 injunction exists for the |>ur|K)»c of proUscting the legal 
 rij;ht, uiul i« not an orij^inal jurisdiction; and therefore 
 wliiTu no reason is shown why a iilaintdV has not in the 
 liml instance proceeded to cj»tabln.h hiH ri^ht at law, the 
 Court will not, on conflictiii}^ allida\its, try the (jucKtion of 
 nuisance (/). But us in a plain case of waste, uj>on ccr- 
 liliciitc of bill filed and atlidaNit of the waste, there may 
 be an injunction before answer, so there may in a plain 
 case of nuisance, as for stoppini; up lights, on aflidavit, 
 ccrlilicate, and notice; because the Court will not suffer it 
 to go on to prejudice the party in the mean tunc, but will 
 stop it bcfoiLliand (*/"). And where on an rx parte motion 
 lor an injunction, the afUdavit swears that the defendant 
 has pulled down buildings, and is ]>rocceding to rebuilil 
 them in such a manner as to obstruct plaintifl's ancient 
 windows, specifically pointing out the nature of the altera- 
 tions, and distinctly swearing to the fact that the altera- 
 tions will darken entirely ancient windows formerly unob- 
 structed, and so as to impede the free admission of li-^ht 
 and air, an injunction will be granted till answer or further 
 order. 
 
 3. But where the alleged nuisance is building so as to 
 interrupt merely a prospect, there must be an agreement 
 shown, or ground shown for j)resuming it, (ttherwisc the 
 Court will not interfere before the defendant li;is an opjior- 
 tunity to answer (//). 
 
 («) Mlorneii General v. Cltavtr, 18 (g) AUorntij Central v. Doughty, 2 
 
 Ves.211; s€€p.217, see also 19 Vcs. Ves. sen. 453; AtU>rneyGeneral v. 
 
 62-2. Mcholl, 3 Mer. 687. 
 
 (/) Semple v. Lundon and Bir- (h) Attorneu-Ceneral ». Doughty, 
 
 minghnm Uailtcay Company, 1 Rail. 2 Vcs. sen. 453. 
 Cas. 120.
 
 CHAP, v.] OF A SPECIAL NATURE. 239 
 
 In the case referred to, it was urged that Lord JefFeries 
 liad granted in 1686 several orders to restrain interrupt- 
 ing the prospect in question. But Lord Hardwicke ob- 
 served that those orders were made on petition without 
 bill filed, and were to be laid out of the case. 
 
 It is true that in a case before Lord Thurlow(i)j a bill 
 was filed for a decree to keep the sills of fish ponds in re- 
 pair; and for an injunction against obstructing them, and 
 from erecting further buildings, they having begun such as 
 ■would interrupt the prospect from the plamtiff' s house, and 
 would he disagreeable objects; and to this bill a demurrer 
 being put in, Lord Thurlow overruled it, on the autho- 
 rity of a case of Lord Kihnorey v. Thackeray, in which, 
 on a covenant to keep the banks of a river in repair, the 
 Court of Exchequer had granted an injunction. If no 
 more was alleged by the bill and proved in Bathurst v. 
 Burden than is stated in the report, it is clear that at this 
 day such a bill would not be supported. And it is re- 
 markable that Lord Thurlow mainly grounded his decision 
 on the authority of a case in which there was an express 
 covenant to repair, and in which therefore the injunction 
 was probably granted on that ground. 
 
 It is clear, however, that now, in the absence of express 
 covenant, an injunction cannot be sustained on the mere 
 ground of interrupting a man's prospect, or erecting dis- 
 agreeable objects (^). As to the prayer for a decree to re- 
 pair, although a decree specifically to repair would not 
 now be made, it will be shown in a subsequent part of 
 these sheets, that, by an injunction specially worded, the 
 same effect might perhaps be obtained (Z). 
 
 4. The Court will not in general on motion order a thing 
 to be pulled down to remove an alleged private nuisance, 
 
 (i) Batlmrst v. Burden, 2 Br. C.C. Ves. 338 
 
 64. (0 See Lane v. Newdigate, 10 Ves. 
 
 (/c) 2 Ves. sen. 453, 454; 1 Dick. 192 ; and ilieolher cases on this point, 
 
 165; Attorney -General v. Nicholl, 16 post, chap. vi.
 
 210 BTATIKO WBONOFl-'L ACTS [I'AIJT 11. 
 
 although it may sometimes do so on ilccrfcif/O. Hut in a 
 case of l)uililm<„', so as t«) ol)struct the pluintiti's liglits, 
 wIh'H' till- tlrltiKlant liavint; |jul in his answer, it was clear 
 that llif iit;lu must l»f drcidctl at law, thf ( 'ourt dirt'Cted 
 that the |)artits -^hjuihl |triH'cetl as (jmckly ii*» |)<.»Ksibl(' to 
 try thi- null', ;iinl that the scaHoUiin^ already erected 
 should be pulled down, and tin* defendant restrained from 
 huililnin •J'' L'lecling so ua to obbtruct the plaintiH"*- !i '1lt^ 
 untd alter trial liad(;i). 
 
 .'>. In capes of public miisance only, the j)r(»jKr course is 
 to file an information at the suit of the Attorney (iencral(o), 
 or at any rale, if the suit be instituted by bill, the Attorney 
 (loni'ral should be a |)artv. Hut where a case (»f nuisance 
 is made, producing j)rivate injmy to the plaintill, althouj^h 
 it may also jjroducc public injury, a bdl for an injunction 
 may be fi\vd bv the partv suHcrin^ the ])rivate injury, and 
 the Attorney (»eneral need not be made a j)arty(y;). This 
 point arose again ini demurrer in a very late ca8c(y), in 
 which the bill alleging the act complained of to be both a 
 private and public nuisance, the defendant denmrred for 
 want of jiartics, because the Attorney General was not a 
 party; but the Vice-Chancellor iield tliat the bill contain- 
 ing an allegation of private nuisance, the allegation of 
 public nuisance was immatcruil, and did not make the At- 
 torney General a necessary party. 
 
 The Court will not in general, on an information ai the 
 relation of individuals, interfere to prevent the continuance 
 of a manufacture alleged to be a nuisance, without a trial 
 atlaw(r). Whether where an indictment against the nui- 
 sance is pending, the Court will interfere to controul the 
 
 (m) Byder v. Bentham, 1 \'cs. sen. 617; Sptncer v. Lond-m and Ilirming^ 
 
 543. ham Uailtcay Com jiauij, 6 Sim. 193. 
 
 (»i) Ibid. (q) Sampson V. Smith, 8 Sim. 212. 
 
 (o) Haines v. Barker, Amb. 158; (r) Attorney-General v. Clenver, li 
 
 ^noH.a Aik. 7ol; Red. PI. 144. Ves.211. 
 
 (p) Cr«»u</e) V. Tinkler, 19 Ves.
 
 CHAP, v.] OF A SPECIAL NATURE. 241 
 
 proceedings in the indictiucnt for tiie purpose oi' proniutiuo- 
 a speedy trial, seems questionable. At any rate it will not 
 do so as a matter of course. For although circumstances 
 may give the Court a control over the indictment, as for 
 instance, where the relators in the information are the per- 
 sons prosecuting the indictment, the Court of Chancery 
 has undoubtedly no original jurisdiction either to enjoin or 
 to regulate the proceedings on an indictment (s). And 
 where a bill of indictment had been found against the de- 
 fendants in equity, for carrying on a soap and black ash 
 manufactory, and they had removed the proceedings by 
 certiorari into the King's Bench, Lord Eldon refused to 
 interfere against them by injunction for the purpose of press- 
 ing on the time of trial, partly it would seem on the ground 
 of his doubts of the jurisdiction, though principally on that 
 of laches in the relators(^). 
 
 6. The question, what amounts to such nuisance as to 
 call for the interference of the Court, was much discussed 
 in the case of Crowder v. Tinkler (u), which was a case of 
 alleged nuisance from a powder mill. No point on this 
 subject was actually decided, but Lord Eldon entered at 
 some length into an examination of the jurisdiction in nui- 
 sance, and from what fell from his Lordship the following 
 points may be collected : — 
 
 L That where the attorney-general is a party to a bill 
 for a nuisance, still, unless it is clearly a public nuisance, 
 the Court will not enjoin till the question has been tried at 
 law. 
 
 IL That although a bill should unnecessarily allege a 
 public nuisance, yet if the matter complained of is not a 
 public nuisance simply, but what being so in its nature is 
 attended with extreme probability of irreparable injury to 
 
 (s) 18 Ves. 220. («) 19 Ves. 617. 
 
 (t) Attorne\j-General v. Cleaver, 18 Ves. 211. 
 
 R
 
 242 STAYING WRONOPl'L ACTS [PART II. 
 
 private prt>pertv, incliitlin'; also tlunger •' hi'.- m hihiik fum 
 will \)0 i^rantfcl. 
 
 II I. That hocuuse an article, such u» tjunpoNviler for iij- 
 stiiiu «.-, is one of rccriit origin, that is not a reusoii for 
 holdini^ that at common law the erection of u {;unpowder- 
 mill, if utlcnil(<l with dunf^er to the public, would not be a 
 nuisance. The j)rincipl(.' of law in, that any subject of 
 modern discovery cannot Ik.- u»cd in hucIi a manner as to 
 constitute" nuisance, merely on the ground that the materials 
 arc of modern discovery. 
 
 IV. That an act of j)arliamcnt mukin^^ it illegal to carry 
 on a certain manufacture except in mills of a certain con- 
 struction, <loes not, by exceptini; from the operation of the 
 act the mills actually worknig at the tune of its passing,', 
 ])rcclude the inquiry whether such mills would Ijc a nui- 
 sance at conunon law ; and therefore docs not make it ne- 
 cessarily legal to carry on the trade in a mill erected on 
 the site of one in existence at the time of passing tlie act, 
 if such mill from its construction and site would be a nui- 
 sance at common law. 
 
 An injunction has been refused at the suit of an uidivi- 
 (lual to restrain the building of a hospital for taking in pa- 
 tients, suflering from a contagious disease( a:). The decision in 
 the case referred to can hartUy however be regarded as a ge- 
 neral authority ; because it seems to have gone very much 
 on sj)ecial considerations a])plicable to the time (1752), 
 and to the nature of that particular case. The proposed 
 hospital was for the cure of small-pox, and was about to 
 be erected in what were then the outskirts of London. 
 The disease, it must be remembered also, was at that period 
 so fixtal and so dreaded, as to make it a matter of over- 
 wliclmini: public importance to provide means for its cure. 
 The Lord Chancellor stated his opinion that it was a charity 
 like to prove of great advantage to mankind ; and said 
 such an hospital must not be far from a town, because those 
 that are attacked with those disorders in a natural way 
 (i) Baints V. Baker, Amb. 168.
 
 CHAP, v.] OF A SPECIAL NATURE. 243 
 
 may not be in a condition to be carried far. The decision 
 was partly also grounded on this point, that, if a nuisance 
 at all, it was a public nuisance only ; and therefore that the 
 relief ought to have been sought by information (y). 
 
 In a late case, an act of parliament empowered the Com- 
 missioners of Woods and Forests to make certain new 
 streets according to a particular plan therein referred to, 
 and to lease, and to enter into agreements for leasing, the 
 ground on the lines of the new streets. Under this 
 power leases were granted of two plots of ground, upon 
 which the lessees erected some houses in the hne of one of 
 the new streets. The plan referred to in the act of parlia- 
 ment exhibited an open space in front of the sites of these 
 houses, but that plan was not mentioned in the leases. 
 The intended streets were completed, and the space in 
 front of the houses was left open. Tlie Commissioners of 
 Woods and Forests, and the paving committee of the 
 parish, afterwards gave permission to certain persons to 
 erect an equestrian statue in the open space, and these per- 
 sons proceeded to place it there, without however inter- 
 fering with the line of the carriage way of the new street in 
 which the plaintiff's houses stood. The plaintiff thereupon 
 filed a bill to restrain the erection of the statue, alleging 
 that upon the treaty for the leases, the lessees were shown 
 the plan of the intended new street and parts adjacent, by 
 which it appeared that the space in question was to be 
 quite open and free from all obstructions, and that it was 
 upon the treaty represented and stated, that opposite the 
 two houses a free passage would be left of certain dimen- 
 sions, which would be contracted by the erection of the 
 statue. They also alleged that the proposed erection 
 would diminish the value of their property, and be a pub- 
 lic and a private nuisance. It was, however, held that 
 these circumstances did not entitle the lessees to an injunc- 
 tion to restrain the erection of the statue either on the 
 
 (3/) See also a case of v. principal case, Arab. 159. 
 
 Frewen, cited by the Court in the 
 
 R 2
 
 241' STAVIN- \s i.i>s«.t i i- ACT« [part II. 
 
 ^rouiul of coiitiuci, ui ui liui^aitcc. 'Hie Lord (.'luinccllur 
 tliuu<^iil It u i-ltur |)oiiil, that it tttmlU be no public itui- 
 8aiu*f. And whrthrr the private injury oniouiited to nui- 
 Hiiiuc or not, he It-rt the portic* tu try at lam if lliey thought 
 f»H:). 
 
 Hut wlierr u nulruud company taere rettriclrd by thnr 
 itct of parliuuirnt fri)ni unni;;, ilaniu^in^, |Mlli»nl^ uloii):, <<r 
 intcrfiMM;4 \%ilh n particular roud l»rlonj;iiig to u canal 
 company, (lead in|; tu the \vliarf» and towing |)ulli,and made 
 by the runal cniii|m!iy for tlic j«»iiit u«c of tli« n>-» K«h uixl 
 their h-^HMC*,) except by llie hcenHe <»f the cuiiul i>>ii»paiiy, 
 uiuUr their Mcul ; uiid the cuiiul company hud <^iven the 
 ntiluuv coinpaiiv some Hort of lieeiiHc, thuu^h not under 
 their seal, to use the road; it was held that ubin^ it by 
 curling on to the road such larj^e nmhHeK of clay Oii uould 
 require several duys to move, just opposite und no u«» to 
 obstruct the cart-way into the premises of a lessee of the canol 
 company, was such a nuiMance and unreasonable u»cof the 
 road as to justify an ex parte injunction; and afteruurds to 
 support it, to the extent of restniinin^ the company frotn 
 laying d«>\vn (pianlilies of clay, Sic. on the road, but not to the 
 extent of restruinin*; them from passing along oJid using the 
 road(« . And |h ndini: proceediii<;s at law to try the rij^hl of 
 the plumliffto the use of water, as he claims it, by a wal^-r- 
 coursc, ccjuitv will restrain the defendants from obstructing 
 such watercourse ; init projier juovisions should be made 
 for having the fjucstion tried at law (i). 
 
 7. It mav here be observed, that if a bill alleges that a 
 certain thing is a nuisance to the j>lainlitr by damaging his 
 trade, a demurrer cannot l>c sustained for want of equity, 
 on the cround that the nuisance is not shown to be such 
 as to be incompatible with tin- i niovmrnt of lif'p and 
 
 (i) S<]uire V. CampbtU, 1 My. .\ «a) Cum.*, l»i". 
 Cr. 459. ('') Druhirtt t. WrigU^, C. P. 
 
 (a) SfmpU ». London and liir- Coop. 319. 
 mingham Railvtty Ccmpiiny, 1 Rail-
 
 CHAP, v.] OF A SPECIAL NATURE. 245 
 
 health (c). Indeed it seems plain that in such a case, the 
 word ''nuisance" having- a particular legal meaning, the de- 
 murrer admitting the nuisance admits the equity. 
 
 8. A very old head of jurisdiction in cases of nuisance is 
 that of darkening ancient lights ; viz, where one having a 
 house in which are ancient windows, another erects some 
 house or building which intercepts the light of those win- 
 dows. 
 
 It does not follow, however, because a man might sup- 
 port an action on the case against his neighbour for making 
 a window in his own wall, or for raising the wall, that a Court 
 of equity has jurisdiction. 
 
 The foundation of the jurisdiction is that sort of mate- 
 rial injury to the comfort and existence of those who dwell 
 in the neighboiuing house, which requires the application 
 of a power not merely to remedy an injury for which da- 
 mages more or less would be given in an action at law, but 
 to prevent it. 
 
 The position of the building, whether opposite, oblique, 
 or at right angles to the windows is not material. The 
 question is, whether the effect is such an obstruction as 
 the party has no right to erect, and cannot erect without 
 those mischievous consequences which upon equitable 
 principles should be not only compensated by damages, 
 but prevented by injunction. 
 
 A diminution of the value of the premises is not a 
 ground for the interposition of equity ; nor will it interpose 
 upon every degree of darkening lights and windows. 
 
 The principle seems to be this: that where the injury 
 inflicted is of a nature that can properly be met by pecu- 
 niary compensation, equity will not interfere; but where 
 it is of such a nature as would probably compel the party 
 by its pressure to abandon his residence, then equity will 
 restrain the commission of the injury (<i). 
 
 (c) Sampson v. Smith, JMS. 15tli (d ) Attorney-General v. Kichol 
 
 Mar. 1838; and see S. C. 8 Sim. 16 Ves. 338. 
 272.
 
 QAfy •'T^VIJtO WBOWOPnL ACTS [PAHT II. 
 
 'llu-.4«? .Iw. i.,... - ..if ttipport«d by an wiriy c«»e,iii whicli 
 rii> injuiKtion Hut rrfuiMHl lo ulay |iMrtit-« in llic city of 
 Loudon I'rom buiUlinf; a wall up}XMiile thr plaintiti 'i wiii- 
 <lu\vi, witliiM M'vrntun (vi'l thcrrof, ai» il tliJ n<'t u]>fK*ar 
 that thiy wcrn aiuu-nt light*, and the |inixinuty wo* not 
 Nuch as to be a numanre (•). So in a nuMre nuMlcni uor, 
 M'orr Sir Tlinnm* IMuiner (f), where the defendant wa* 
 erwlinn iMnlding* in the city of I^mdoii, (hirkmin^ tJie 
 phiintitr'n ancient hghta, but it did not npi>oar that in the 
 intcrviil h<fore thr trini of thr richl ut law, tl. ' vi of 
 
 the pluintit) would Ik* nuitcnully intcrfcrcil u ihe 
 
 right at law wta doubtful, owing to a j>eculiar custom of 
 the city of Ix)ndon, the (Jourl rcfu*cd to gnint nn injuiK- 
 tion. 
 
 It nuist aUo l)C obfierved, that to juntify the interference 
 of 0(|uity, the lichts mnxt l>e ancient lipht"*, for which the 
 plnintitf haH pn-Hcnplion (7), or elnc the act must Im; iu 
 violation of «onie aprccinent exprcsned or implied (h). 
 
 In a late case, where the defendant, holding; under a 
 leaM" from an ecclesiastical cor|X}ration, wa« a)>out to re- 
 build the house in such a way aH to obstruct the plaintin"« 
 ancient lights, the right of the dcfendant'ti IcMora to 
 erect such hniMiii<js not !ip|>earing clear, and the right of 
 the lessee still ji •^'i so, the Court, thinking the obstruction 
 came within the principle of the Attorney-General v. A^i- 
 choll, grantL-d an injunction till the right should Ix; tned(r). 
 
 9. It is a nuisance to hold a new market too n«-ur an 
 ancient one (A) ; but the owner of the ancient market can- 
 not, in genenl, come originally into erjuity for an injunc- 
 tion before any trial of the right at law(/'. \N'li< re. how- 
 
 (#) Fuhmotigtrt Company T. }'■«$( 338. 
 
 India Companti, 1 Dick. 163. (i) SutUm ». Lady M»nlfort,4 Sifll. 
 
 (/) n'iratanUyr. Ijtt, 1 Swans. 559. 
 
 333. (fc) 2 RolL Abr. MO. G. 2 ; Ymrd 
 
 (p) 1 Dick. 164 , Mirrris t. Urd v. Ford, 2 Sauod. 172. 
 
 Btrkelfu, 2 Ves. sen. 453. (0 Anon. 2 Vcs. sen. 414 ; kod 
 
 (h) i/.rrii r. Lord Brrkrlfy , At- see 3 AU. 726. 
 tonuy-Gmeral v. iVicAol, 12 Ves.
 
 CHAP, v.] OF A SPECIAL NATURE. 247 
 
 ever, the title to a franchise, such as an ancient ferry, 
 appears on record, as by a decree in Chancery, an injunc- 
 tion will be granted, if the affidavit show^ satisfactorily that 
 the plaintiff has kept sufficient ferry boats, but not other- 
 wise (m). 
 
 So in the case of a market, it has been held that to 
 support an application by the owner of an ancient market, 
 asking for an injunction to restrain a new one set up near 
 it, it is essential to show that the old one is sufficient for 
 the accommodation of the public (n). But although the 
 fact of an ancient franchise not being shown to be suffi- 
 cient for the accommodation of the pubhc, will deprive the 
 owner of his right to restrain interference with his fran- 
 chise, and although a person going to the market, and 
 being refused such accommodation as he is by law entitled 
 to, might have an action for damages, it does not follow 
 that a bill might be filed for an injunction to permit any 
 person to come to the market that pleases. And it seems 
 it could not (o). 
 
 10. The commissioners of sewers, under the statute 
 23 H. 8, c. 5, are a Court of record, and if they exceed 
 their jurisdiction, the remedy is in the Court of Queen's 
 Bench by certiorari. And although it is not decided that 
 there are no cases in which equity would interfere by 
 injunction against their acts, yet in a case before Lord 
 Eldon, where the commissioners having made an order on 
 the plaintiffs to remove certain constructions made by 
 them on the river Waveney, the plaintiffs came for a per- 
 petual injunction. Lord Eldon said, that after the oppor- 
 tunity the plaintiff had had of taking a much shorter course 
 (by certiorari), equity ought not to interfere (p). There 
 seems, however, no reason to doubt, that if the commis- 
 sioners of sewers, in the execution of what they conceive 
 
 (m) Anon. 1 Ves, sen. 476. (o) 1 Jac. & W. 374. 
 
 (ji) Ex jyarte Ileilly, 1 Ves. jun. (p) Kerrison v. Sparrow, 19 Ves. 
 
 114. 449.
 
 048 «TAYI«fC WIOKOFOL ACTW [PART II. 
 
 ihiir tlutv, were lu crfutt- or oecaiion a public nuisuncf, 
 fijuity «uuUl liu%r jurtMiictiuii lo intrrfi-rr ! 7. 
 
 11. A Mice qucitliun aroce in « lui , .. 1 - ihc juri»- 
 
 ilictiuii of equity lu mattrm of |)ul»lic iiuiMiice. A bndgc 
 (miuuh'UhI two couiitim ; om* half U'lng; within iIk- jun»- 
 ilututi) of our, tiiul the other half of (he other ; tuiU the 
 two couiitien wrrc jointly liable to the rcpuirK. On the 
 occo»ion of III being out t»f repair, the two couiitjc* coulJ 
 
 III. I ii^rce UN to the mode (if n-pnirin{; it, uml the n; 
 
 iiaii-H of county A. rrpuireti their half, an fur u* the ii. 
 
 of the centre arch, by attaching new joist» to the old ones, 
 itiul linuin^' up Huch new joists by ticM., Sec. On thin the 
 inai^islnilfH in Hes«ionh aHsctiiltlrd of rouiily B. thrcatriird 
 to cut away the old beuiuK from bo for u» they were »up- 
 pt)rt««l l)V tilt' last jiicr in lh<ir county; but I^*rd (' " 
 ham, ('., lii'lil that this wiiuld oj)erutc as a public nui- 
 and would be in rflcct n compuUion •>!» the inagiKlratcs of 
 county A. to give up their own plan of repairs, and a«lopt 
 anolhor. It was urged that the Court would l>c inter- 
 fering with the juriwliction of the Court of quarter scasiooR, 
 but to this the Lord Chancellor rcplic<l, that thf injunc- 
 tion was not nn interference with the orders of the (xjurt 
 of sessions icitfiin t/iiir own county, but only a restriction 
 jirevcnting the magistrates of that county from doing an act 
 which would work n public nummcc out af their jurisdic- 
 tioti(r). 
 
 12. I'.(jiiiiv will not interfere to prevent a contingent 
 nuisance, that is, an act wliirli may or may not be a 
 nuisance, nccordiiii; to the mode in which it is done. Thin 
 was decided in a very late caso(.«), in which an injunction 
 was sought to restrain the defendants from erecting or 
 using steam engines for draininsx certain low lands, which 
 had theretofore been drained by means of windmills. 
 The irround on which it was put was, that the use of such 
 
 (9) See 2 My. & Cr. 133, and .My. & Cr. 123. 
 Box ». AIU». 1 Dick. 49. («) F,«rl of ' - v " '-. ( « M* 
 
 (r) Attorney '0 tnrral V. Forbf$ , 2 &c K 1^9.
 
 CHAP, v.] OF A SPECIAL NATURE. 249 
 
 enoines, instead of the machines theretofore used, would 
 injure the banks of a river, of the navigation of wliich the 
 plaintiffs were commissioners, by throwing into such river 
 in times of flood too great a mass of water. The appli- 
 cation was refused on several grounds : first, on the ground 
 of laches ; but principally on the ground that there was no 
 case made for the prevention of irreparable mischief; that 
 the erection and use of steam-engines would not, of neces- 
 sity, be mischievous ; but that would depend on the mode 
 of using them, and that therefore the alleged mischief was 
 an eventual or contingent nuisance only. In the course 
 of his judgment Lord Brougham, C, laid down the rule 
 respecting the relief by injunction as applied to such 
 cases thus — " If the thing sought to be prohibited is in 
 itself a nuisance, the Court will interfere to stay irreparable 
 mischief, without waiting for the result of a trial, and will, 
 according to the circumstances, direct an issue, or allow 
 an action, and if need be, expedite the proceedings, the 
 injunction being in the n'leantime continued. But where 
 the thing sought to be restrained is not unavoidably and 
 in itself noxious, but only something which may, accord- 
 ing to circumstances, prove so, the Court will refuse to 
 interfere until the matter has been tried at law, generally 
 by an action, though, in particular cases, an issue may be 
 directed for the satisfaction of the Court, where an action 
 could not be framed so as to meet the question (t)" 
 
 13. In case of nuisance and purpresture, that is, in- 
 croachment on an arm of the sea or port, or on the soil 
 between high and low water maik, which is in the crown ; 
 having the effect of an injury to the right of the crown, 
 as well as a nuisance to the public, a decree for abatement 
 of the existing purpresture and nuisance, and for an injunc- 
 tion will be granted (w). 
 
 (() F.arl ,<f Uipnnv. Hoburt, 2 My. 2 Ans. 603; see also 18 Ves. 218; 
 & K. 169. Red. PI. 150; Attorney. General v. 
 
 (?«) Attorney-General v. Richards, Jolmson, 2 ^Vils. 87.
 
 3fiO 
 
 •TAT1V0 trsOXOVIIL AOn 
 
 [past II. 
 
 CHAPTKK VI. 
 
 "/ Injunctions in Aid of tprci/ie Perfurmimce; amd to 
 rrstraim Hrtttck of TViuf or ( 'onfulmcr. 
 
 
 ftrmtmet ^ AgrMmtm%» I* fmr- 
 
 3. Wktrt homily mfffrtt m** Agnt- 
 
 ■ml U CfMlly •■ trntlrumtemt 
 mkitk WMiM JUw ii*> rfift *t I-mw. 
 
 4, lmjmmclt0mt (« mlrttn {ir*m*lk •/ 
 
 6. At- 
 
 0. If ' .-KrjiM I'r- 
 
 7. l>^ th§ JmT%m%€twm to tmttrjfr* ky 
 
 Injttnettim, mkrrt urn Agrttmtmt 
 e^nttot In ftU'rcfd mi a ttkoU, 
 
 9.0/lfk* Jurtidiftt^ indtrtftlii hy 
 l^^unetifin Ic nf»rt» ths I'tr. 
 J'lfi mtnct t>j « iM^loNliM At\. 
 
 n. il%aUfkCAUon% of tk» Uoctrint. 
 
 10. lUtull of tht Authorititt. 
 
 11. Y^Mity wttl net trm eireuit«m$ly 
 
 evmptl ths carrying om of m Trad*. 
 \'i, Injunctxont to r^jtrairi Drtach of 
 Trytt. 
 
 I. IVhert lireach of p.^ntiif 
 
 Truit. 
 1. M'kfr* Conduel it i-^ 
 
 tnt itith implitd Truil ; or 
 3. n'hrr*tlu PartyJilUaJidu- 
 cuiry Charactrr, or Km de 
 facto a Conf. ' 
 in him. 
 
 IS. M ot — m f li^ l^fum Hi tmt t m 
 
 gmrdt tkt /idufUry I 
 
 !«<•»« Mifii<w mmd * 
 14. Of t^Jmmftiemt to f««lr*i« I*./ .' 
 
 Mmt mmd I'imdtmgff fmrtua^ 
 
 \:. ■ :■.■■-,,, 
 
 u, . 
 10. /•- 
 
 1\tlM m» <Uimimg umdtr . 
 mmtt rlmrly »k*^m 1^ ■' '^' 
 II « e^ntimtung tm*. 
 
 17./". 
 
 18. Of I -t Parltt* .... 
 
 tkemt*tim mftktir Rkgkl to |A« m. 
 titlmmt* of Cf luly / ' --'— 'i-^jf 
 mm Agrttm4mt. 
 
 19. A>. . pmrluutaj ej \k€ 
 
 1 u. 
 
 20. Corntruction of Pmrxmt* f»r r*- 
 
 luMi"^ dtmiud Vrtmittt. 
 
 21. Injunction t» n$trmim wmdtr Cir- 
 
 tuwutmi. >< i«« Btmt 
 
 Ju*. 
 
 23. Kte«$mry |A«I Pmrty cmmimg frr 
 
 1. In general, ofjnify will iiitcrfrrc bv lujunclioiun aul of 
 a party who is prima facie entitled to flio >;!.< i ifio |K;r-
 
 CHAP. VI.] OF A SPECIAL NATURE. 251 
 
 formance of an agreement ; on this principle it is that 
 the Court, as we have seen, relieves in certain cases, 
 aoainst proceedings at law, instituted by purchasers to re- 
 cover their deposits ; and to compel indirectly the obser- 
 vance of covenants by lessees, by restraining such acts as 
 amount to a breach of the covenants. And on the same 
 principle equity will in many instances, which will be illus- 
 trated by the cases collected under this head, restrain acts 
 inconsistent with the due performance of agreements. 
 
 An early instance, the earliest it is said («) in which 
 equity interfered to restrain breach of agreements by an 
 injunction, is a case of Martin v. Nutkin(b), in which the 
 defendants, who were the parson, the churchwardens, over- 
 seers, and some other inhabitants of the parish, had en- 
 tered into a written agreement with the plaintiffs, that in 
 consideration of the plaintiffs erecting a new cupola, clock, 
 and bell to the church, the ringing of the church-bell at 
 five o'clock in the morning should be discontinued for the 
 lives of the plaintiffs and the survivor of them ; and the 
 plaintiffs having performed their part, by erecting the 
 cupola and bell, Lord Macclesfield granted an injunction to 
 restrain the defendants from permitting the ringing until 
 the hearing of the cause, and at the hearing the injunction 
 was continued during the lives of the plaintiffs and the sur- 
 vivor of them. 
 
 And where two persons being in partnership as coach- 
 masters, running coaches from Reading to London, one 
 sold his share to the other, and covenanted not to run any 
 coach from Reading to London, or so as to injure the re- 
 maining partner in his business, and then he commenced 
 running a coach from Pangbourne, six miles beyond Read- 
 ing, to London, passing through Reading, an ex parte in- 
 junction was granted to restrain him from running any 
 coach from Reading to London (c). 
 
 (a) Eden on Injunctions, 308. (c) Williams v. Williams, 2 Swans. 
 
 (6) 2 P. Wms. 266. 253.
 
 2-.'>2 HTAYIXG WRONGFUL ACT* [PART II. 
 
 2. Ill huit* fur the HjK'ciric jXTfornittiic** of o^rfeiiuiiu 
 fur the »alc of laiul, injuncUuiiji arc frrtjueiuly ;{run(t-d : 
 thu« ill a Kuit uf (hia iiatiirr, iii»litutrtl u|;aii)ftt the vrndur, 
 nil iiijuiutioti \\\\\ \n- •.•nmtctl to lentntiit him fr \- 
 
 iii>; the Ir^ul cKtiite, mi the |;rout)d thut the plui;.. ^Itt 
 
 Im? put to e\|>«MiKr hy the ncccMity i>f iiiukiii); uiuither 
 purty when the rnii<»c might be jimt rcudy for hearintj (</). 
 fc>u where iherr w»* u |»aroI a;;re«'ineiit l>ct«e<?n the plniniifr 
 and defendant to rxchnii^c eMtuten, and the pluintdl hud 
 |>artly |M>rfonne<i it, hy purehatiinn the cntiite to Ixr gircn for 
 the defendnnt'x, the defnuhint wnK n-Htniiiwd from Kcihng 
 his estate (*•}. 
 
 Ill a caiu; of Spillrr v. SpiHrrif), the (Km trine htt«,how- 
 ever, lK*eii hiid down, thut in general, on a hill for the h{ic- 
 cifie p«iforiiiance of an u^re<nienl to wll, the plainliti in 
 not ciilitli d to rcAtniin the owner from dealing with hin 
 piojHTtv, us a dirtereiit doctrine would o|)enile to control 
 nL;liLs of ownerhlii|), allhoiigli the a<^reement hIiouUI l>c 
 ■uch as could not be |)crfomietI ; but under special circum- 
 Blanct'rt this rule will Im; departed from. In the cnwr referred 
 to, p«»ssession of copyhold preini!K.h had Ijccn dcliven-<i to 
 the j)urchaser, who had paid purl of the purclia*c-moncy, 
 but the surrender, on which the remainder was to Ik* paid, 
 was delayeil by the death of the steward, and before a sur- 
 render could be obtained the vendor became iiiftolvenl 
 and assigned his j)roperty to trustee**, and then refused to 
 surrender the copyhold to the plaintifl': an injunction was 
 granted till answer or further order, to restrain him from 
 surrendering to the trustees (//). 
 
 Although where a vendor has not all tliai he contracted 
 to sell, he will be coiiijxjlled in c<juity so far to perforn; 
 the contract as to part with what he has, making a deduc- 
 tion to the j)ui chaser (/i), yet where a large portion of 
 
 (d) Kc^i/i/v. ;j<i/Jtfin.l6Vc».?67. (g) Spillrr ». SptlUr, 3 Swim*. 
 
 (f) Curiii V. Murquis of Bucki, 3 566 ; and ue Sug. Ven. & P. 5H>> 
 
 Vo. 6c U. 168. edit. 217. 
 
 CO 3 SwansU 556. ' ' ^ //■ ' v, /?,.r. ,,, 17 Vn. 394.
 
 CHAP. VI.] OF A SPECIAL NATURE. 253 
 
 the estate cannot be conveyed, that is not allowed ; and, 
 therefore, where three persons contracted to sell a lace 
 manufactory, believing themselves to be entitled to it, and 
 it turned out that another, who was not privy to the con- 
 tract, had title to seven-sixteenths, besides a lien for 10,000Z. 
 on the entirety, the Court refused, in a suit for specific per- 
 formance, to grant an injunction to restrain the defendants 
 from selling the property to any one else (l). 
 
 On a motion by a vendor, plaintiff in a suit for specific 
 performance, for an injunction to restrain the purchaser 
 from bringing an action to recover his deposit, the Court 
 will, if it appear that the defendant has a just claim, order 
 the deposit to be paid into Court, not as a relief to the de- 
 fendant, but as a condition annexed to the relief granted 
 to the plaintiff. And even where the defendant has neg- 
 lected the proper opportunity for doing so, and has not 
 raised the question on the motion for an injunction, the 
 Court will still hear an application on his part for payment 
 of the money into Court, treating it as in principle a mo- 
 tion to dissolve the injunction, unless the money is paid 
 into Court. But such a motion will be refused, if on the 
 merits it appears that it is the default of the defendant 
 himself, that the plaintiff retains both the estate and the 
 deposit {k). 
 
 3. The Court will sometimes interfere by injunction to 
 support as an agreement in equity an instrument which 
 would have no effect at law; and will even, under special 
 circumstances, give effect to an executory agreement against 
 the legal effect of a legal instrument. Thus where a per- 
 son having a lease for years agreed with another by a me- 
 morandum, in consideration of 40/., to let to him &c. at 40/. 
 per annum, to be paid quarterly, with a proviso interlined 
 that the lessor should not raise the rent nor turn out the 
 lessee so long as the rent was paid quarterly, and that in 
 
 (i) Wheatley v. Slade, 4 Sim. 126. 
 
 Ik) Wynne v. Griffith, 1 Sim. & Stu. 147.
 
 264 BTAYIJCO WROJIOm ACT* fPART II. 
 
 cfLM of removnl, the Icwt-c hIioiiUI bt- at lilx-rty to net ivc 
 thr >*iiid «uiii of -10/. of thf next ttimiiL The lis^or mic- 
 ri^^lc«l III uii action of rjfctmcnt, the Court of luw trwitinpf 
 It a* u tenancy from year to year. Hut I^nl Kldon agr. 
 tliat tiM u Uii*c it cnuU! only Ix* n puiol lca»c from yi-. 
 yt'or, ti.utcil It, l«K>k»ng ul the txc<utory character of »om»r 
 of the stipulation*, u an •i^rwmcni, an<l naul the lcM«or 
 wuH bound at leant to pay the 40/. connitlcration, or to 
 execute »K>nir le«*f that would put the |iluiniiflin a powtion 
 to recover the 10/. confudcmtion at law, and continued an 
 injunction on tcnn»*(/). 
 
 And in a tiw wlurt" the plnintifV, having a fum of money 
 in hif* Imndrt Monging to the defendant's trnlatrix, gave her 
 a proinissorv note r«»r it with interest, an<l " ' that after- 
 wards an agreement was cntend into dn , t to her in 
 lieu an annuity, and made payment* on account of Buch an- 
 nuity, hut no (Iced was ever executed ; the Court douhte<l 
 at first whither such an executory agreement could Ix* wrt 
 up against tlic legal efl'ect of the note, but at length su|>- 
 portcd an injunction till the hearing, on the money being 
 jiaid into Court (m). 
 
 \\ here a party has entered into a contract which is fetill 
 continuing, the Court will not deal with it so a« to prevent 
 anv person from infringing it, except in certain cases, as in 
 an oiiiinary case for specific performance. There are many 
 cases of contract, the breach of which will entitle a party 
 to an action for damages, but will not entitle him to come 
 into a Court of ccjuity. To the latter class of cases Ix-long 
 all thosf wlitrc tlie breach of contract does not produce 
 irrepanihlc mischief. And though the Court will interfere in 
 a case of irreparable damage, so as to put it in a fair course 
 of trial, vet unless there is something like that, though 
 parties may be cntilKd to damages, and large damages too, 
 It is not a ground upon which they can come into a Court 
 of equity (n). 
 
 (0 Diouriu v.Warntr, U \ cs. 156, ("•) Dally w.Cotchl^trt, 4 ?t. W. 
 
 409. (•> 1 Jac. & W. 370.
 
 CHAP. VI.] OF A SPECIAL NATURE. 255 
 
 4. An injunction will be granted on bill filed and affidavits 
 before appearance, and without notice to the defendant, to 
 restrain breach of covenant in a lease secured by forfeiture 
 and a penalty, where the affidavits make out a clear case 
 of breach of the covenants by repeated acts (o). But 
 where the answer on coming in showed that the lessor had 
 been cognizant of the breaches, as for instance where it ap- 
 peared that the lessors had been aware for eleven years of 
 the acts done, and thus permitted the covenant to remain 
 an ineffective part of the lease, the Court, although satisfied 
 that the acts were within the covenant, dissolved the in- 
 junction on the ground of acquiescence (2:>). 
 
 If a lessee under a covenant to repair, reasonable wear 
 and tear excepted, takes down things subject to the cove- 
 nant before they are worn out, and substitutes new ones in 
 their place, such substituted things are subject to the stipu- 
 lation affecting the old ones. Thus where a lessee of a 
 mill, with the steam engine, boilers, and gearing, (fee. attached 
 thereto, covenanted to keep the same in good repair, reason- 
 able wear and tear excepted, and while such machinery 
 was still fit for use, he pulled down the greater part of it, 
 and put up in its place other more powerful machinery, an 
 injunction was granted to restrain the assignees of the 
 lessee, who had become a bankrupt, from removing the new 
 machinery {(]). 
 
 5. Where parties convey their estates in trust for the 
 payment of creditors, without any creditors being parties, 
 or any agreement with, or release, or other consideration 
 moving from creditors, but it is simply a voluntary deed, 
 a creditor under such deed cannot restrain the trustees of a 
 subsequent deed, varying the dispositions of the first, from 
 carrying such second into execution; for the grantors may 
 vary the trusts of the voluntary deed as they please (r). 
 
 (o) Barret v, Blagrave, 5 Ves, (q) Sunderland v. Kewton, 3 Sim. 
 
 555 ; and 6 Ves. 104. 450, 
 
 (p) 6 A^es. 104. (>•) Wallwyn v. Coutts, 3 Mer. 707.
 
 '». An UlJUMLtKill \m' ttll t.. stUV J)ri»Cf<HlMl^s jij au 
 
 url)itnitit>ii uMili-r cin in In Myliie v.JJichcnsont^r), 
 
 the plaiiidii liud iitrrcctl fur Uic purchafc of • patent, re- 
 |>irMiiir«l iin N by tlif ()r(rii(Juiit ; |>cii(liii{4 koiiic 
 
 (lilhcultun ill :Uf ciiiitruit, the di-feiiduiil huving 
 
 rvccivttl ui) «>nJ«T fruin the Navy IWniid fur certain uf the 
 {Mitcnt urticlrit, the |tluintili paid liint 3,000/ , and the dif- 
 fcrvnctm ucic rflem-d lu urbitrutiun ; the drffnihuil tlieu 
 wrote to the Nuvy IWmrd, i>uyin|; thut he hud chunked hia 
 opinitxi ui iJic titdity of the invcntiun, and hud therefore 
 dn«[M>N-<l ui the |>iitint. (ndcr thcM: circuniHtunceh, the 
 pliiiiitiir itlfd u bill tu have the 3,(XX)/. returiH*d, und to set 
 iisuh- tht' luiitmct ; und for an injunction to Hluy the arbi- 
 tnitit)n Tin* ('unit «;r4inted it, on the ground that the uibi- 
 tmtiun was part execution of the a;^'rcciuent, which it wa» 
 tin- ulijccl v\ the bill to uct anidi.-. 
 
 7. Ahliuuj^h cipnty inl*iiirch by injunction to restrain 
 breach of agrecnu-nt, uherc it is »uch that the Couit 
 that a decree ior a specific j>erfornuince of llie xcholc (hp ct- 
 tncnt might be made ; and allliouj^h the (Jourtcan execut<.- a 
 negative agreement, where it is Himply such, Rtandini^ by 
 itself >), yd it ha'- lircii laid down, that wluTc an < it 
 
 is mainly and substantially of an active nature, aii'i .;i- 
 
 dctcrmincd and loose in its provisions, that it is impoftsiblc 
 to have a specific performancp of it decreed, and it is only 
 guarded by a negative provision; equity will leave the jjar- 
 ties to a Ck)urt of law, and will not give partial relief by en- 
 forcing, through the means of an injunction, the negative 
 stipulation (O- This doctrine was acted upon in two cajjcs 
 before Sir L. Shadwell, \ . C. : in Kcmble v. Kcan (m), the 
 plaintifV Kcmble and otlicr parties, who were the propnc- 
 tors of Covcnt-garden Theatre, had agreed with the de- 
 fendant Kcan, the actor, that lie should j>erform at Covcnt- 
 gnrdcn a certain number of nights, at a given rate of remu- 
 
 (r) Coop. 195. (i) 6 Sim. 338. 
 
 (j) 6Sim. 351. (u) 6 Sim. 333.
 
 CHAP. VI.] OF A SPECIAL NATURE. 257 
 
 neration ; and the agreement contained a prohibitory clause, 
 that the defendant should not, during the period above- 
 named, perform at any other theatre. His Honor the 
 Vice Chancellor held that the positive agreement was of 
 such a nature, both in respect of the difficulty of compelling 
 a man to act, and the looseness of the terms of the agree- 
 ment, that the Court could not compel performance of it ; 
 and upon the principle above stated, of not giving partial 
 relief, refused to restrain the defendant from committing 
 a breach of the negative part of the agreement. 
 
 In Kimherley v. Jennings {x) the same point arose. 
 There an agreement was entered into between A. and B. 
 copartners, witli C. to be their book-keeper, clerk and 
 traveller during six years, at certain progressive rates of 
 salary, with a covenant on the part of C. during the said 
 term of six years, " not to work for, or for the use or bene- 
 fit of, or otherwise to be engaged or employed by any other 
 person or persons than the said A. and B., or the survivor 
 of them, in the said capacities, or in any other trade or 
 business, profession or employment whatever, without the 
 licence or consent of A. and B., or the survivor of them ;" 
 but C. was liable to be dismissed for ill conduct or ill 
 health. There was also a clause in the agreement, that at 
 the end of the six years the said parties should be and be- 
 come partners, upon such terms, conditions, and restric- 
 tions as should be mutually agreed upon between the said 
 A. and B. and C. The bill prayed an injunction to restrain 
 C. from w orking for any other person, or at any other trade, 
 on the ground of the restrictive clause of the agreement. 
 It was held by the Vice-Chancellor that the whole of the 
 agreement must be taken together ; and that so taking it, 
 it was not such an agreement as the Court could perform 
 on the whole, and therefore the Court could not perform 
 any part of it; and his Honor refused to restrain the de- 
 fendant C. from entering into any other employment. 
 There were, however, other points, on which the Court 
 
 (i) 6 Sim. 340. 
 
 S
 
 358 STAVING WBONOrVL ACTS [PART II. 
 
 siiid it wn* not u cui^ lor Uie intcrlerencf nf fcjuily. ' *!' 
 wuii.thut It wuji a luinl bor;;uiu; ami ttiii»tlHr, llmt llie oi;««.C' 
 uH'iil \vu* nut, titiuniin^; t»j tlu* view lukcM l>y tin- Court, 
 that the rlrrk ('. should nut enter into any other einjiloy- 
 UH'iit, whrthrr ifi»rhnrv'<*ti or not ; hut takinu' the clati»'<- 
 luiuhii^ hull tu »4-r\i' A. and B., uml the rUuMi iet>trt< m.^ 
 him from talking olhrr employment, in connection, that he 
 wiiH nut to (iiki- other eiii|i|uynicnl efuamdid f k> the 
 
 eni|)l«>ynieiit ul A. and H. 
 
 Aj;nin, in a very lato owe, where a society had agreed 
 with 11 |>iihlif.her t«> fll^)i^h hini with ilr.iwin|j» of inu|iii, to 
 lie exclusively puhlHlii'd hy linn, tin- |iuhliHher to pay to tin- 
 society a certain sum for every ICKK) copies sold over and 
 alxive H()(H>, Sir L. Shadwell rcluHeil a motion by the pub- 
 lisher to ix*>-train the MK'iety from publishing Home numlK'fH 
 of Hucli mapH. HiH Honor put his refunal on thin among 
 other groumlti, that aH he could not eom|)el the h<Ki«;ty to 
 furnish the plaintitl uith dniwingtt, he would not grant the 
 injunction, wliuh is merely ancillary to what the Court may 
 do at the hearing of the cause (^). The Court hai» also re- 
 fused to interfere indirectly, where the agreement v»a« alto- 
 gether positive, and of such a nutiirc that it could not be 
 directly enforced. This was the case of Clarke v. Price, 
 wli«;rc the defendant, a barrister, agreed to t<jm|Mj}»e and 
 write reports of cases for the plaintiff, but entered into no 
 covenant that he woul<l not write for any other publisher; 
 and afterwards he entered into an ugreoment with another 
 jjiiblislier to comjxjsc reports for him. I^)rd I-ldoii said he 
 had no jurisdiction to compel Mr. Price to attend the Cotul 
 to take notes of cases, and couhl not therefore indirectly 
 compel him, by restraining him from publishing, unlcsa he 
 employed the ])laintiti as his publishcr(r). 
 
 And here may bo mentioned also a case of Smith v. 
 Fromont. In that case the defendant, being the owner of 
 coaches running from London to Bristol, sold to the phun- 
 liti' the working of the coaches on a part of tlie road, the 
 
 \.SocittufoT Diffusion (i) CUtrkt v. Prict, 2 WU». 167. 
 
 • f.i.'c, !* Sim. 3!*3.
 
 CHAP. VI.] OF A SPECIAL NATURE. 269 
 
 plaintift' providing horses, and profits being divided in a 
 given ratio. After a time, the plaintiff fell into embarrass- 
 ments, and his horses were seized, and it was then agreed 
 that until the plaintiff should again be able to provide 
 horses, the defendant should do so. The plaintiff after- 
 wards provided horses, but the defendant continued to em- 
 ploy his own. Lord Eldon refused an injunction, on the 
 ground that if he enjoined the defendant from bringing 
 horses to convey the coaches within the limits in ques- 
 tion, he must indirectly compel the plaintiff to bring horses 
 there, by enjoining him from not bringing them (a). 
 
 On the other hand it is to be observed, that in the case 
 of Kemhle v. Kean (6) already cited, Lord Lyndhurst 
 had granted an ex parte injunction, restraining the de- 
 fendant from acting at Drury Lane or any other place in 
 London, until he should have acted the stipulated number 
 of nights at Covent Garden (c). 
 
 And in Morris v. Colman (d), where the question was 
 whether Morris and Colman being partners in a theatre, 
 under an agreement containing a clause that Colman should 
 not write dramatic pieces for any other theatre, the Court 
 could interfere to restrain Colman from so writing ; Lord 
 Eldon granted an injunction against him. 
 
 However, in Kemble v. Kean, his Honor the Vice-Chan- 
 celior seems to have considered that the motion for an in- 
 junction before the Lord Chancellor being ex parte, his 
 Lordship had not expressed any opinion on the point ; and 
 with regard to Morris v. Colman, his Honor, referring to 
 what fell from Lord Eldon in Clarke v. Price (e), treated 
 the decision in that case as grounded on the circumstance of 
 there being a partnership subsisting between the contract- 
 ing parties. On the whole it would seem that the point 
 can hardly be thought entirely free from conflict of autho- 
 rity(/). 
 
 (a) SmJt/iv.Fromont, 2 Swanst. 330. (e) 2 Wils. 164. 
 
 (6) 6 Sim. 333. (/) See also on this class of cases, 
 
 (c) 6 Sim. 334. 2 Store's Eq. Juris. 2d edit. 204 n. 
 
 (d) 18 Ves. 437. 
 
 S2
 
 200 ItTAYlNG WROKUPVL ACT6 [PAIIT II. 
 
 8. It Kccius Hcttlud that e<|uily lia» not juritMlictiun to 
 i'uii)|iel uii uiotiuii the |iLrfurniaiicf uf u ftubt>tuiiiivf uct, hucIi 
 lor iiiHtaitcf iiH tilt* iriiiu\ul ul u Murk ulreuily exi-culi-il, i'\i'ii 
 ulthuu^li It limy Imve U*cn exi*cutcd in contrnvciitiuii uf 
 
 an cxpri-ttA u^rn iiiciit. Hut in u crrttiiii rltifH of ctiHcit, ull 
 llir rrsuUn wliifli Would be obtaiiirti liy tin* jiinMluhoii lu 
 urtler ti Huhitaiitivo act to be done, mfty be obtuintHl uii a 
 iiiotiuii fur an mjiiiu-tion, hv fniinin^ the unliT in an in- 
 ilirecl torni. 'i*hut>, altliuu^li if A. Iiuh built u wurk, winch 
 in equity ami ^(mhI cuii»ciciicc he ought not to huvc built, 
 the ( outt will not acttiully ordor liini to pull it ihjwn, it 
 will ri'htntin liini truin allowing it to remain in itM cxiHting 
 state; or, if it l>c t'oiincrtcd with the execution of any col- 
 lateral Work, will r( htr.iiii hini from continuing hucIi col- 
 lateral Work, until lie has removed the principal one. The 
 ellect IS, of course, that he is compelled as elleclually to 
 remove it as if he were sjKJcirically ordered to do »o. 
 
 This practice was first resorted to in Itobinson v. Lfjrd 
 Iti/ron (t/)f and Lane v. Xftri{i(/atf(lt), and ha.s l>c-eii since 
 followed in several other cases. Robinson v. Lmd Jiyron 
 was not a case of contract. In that case the plainliti had u 
 mill, the stream for supplying which sujijdied also the dc- 
 leiulaiit's ponds; and it was alleged by the plaintifl' tliat 
 the il(reii(I:iiit had at one time entirely stoppetl the water, 
 aiul at aiiollu r let in such lar<j;c (|uanlilies as to endanger 
 the mill. Tlic Court said that it could not enjoin what had 
 been used for twenty years |)ast, but if it was so enjoyed as 
 to do mischief, the Court would interfere ; and an order 
 was made to restrain the defendant from using dams, weirs, 
 shuttles, floodgates, and other erections, otherwise than ;is he 
 had used them before a particular time, so as to prevent tlie 
 water flowing to the mill in such regular cpiantities as it 
 had ortlinarily done before that date. The defendant was 
 iheiefore, in eircct, comjiellcd t<j remove such dams, weirs, 
 A:c. as he had constructed, if they impeded the flowing of 
 the water in the iiiamnr prescribed by the order. 
 
 i^g) 1 Uro. C. C. .App. 588. (h) 10 Vc». 192.
 
 CHAP. VI.] OF A SPECIAL NATURE. 261 
 
 In Lane v. Neiodigate{i) the plaiiitifF was assignee of a 
 lease, granted by the defendant for the purpose of erecting 
 mills, and the defendant was by the covenants bound to 
 supply water from canals and reservoirs on his own estate, 
 to work the plaintiff's mills; reserving to the defendant 
 the rio-ht of usino- water for works of his own. The bill 
 prayed generally that the defendant might be decreed to 
 use and manage the waters of the canals so as not to in- 
 jure the plaintiff in the occupation of his manufactory. 
 But the point on which the difficulty arose was the prayer 
 that the defendant might be decreed to restore a certain 
 cut, and a certain stop gate, and to restore the banks of 
 the canal to a given height, and to repair certain works 
 which were in existence at the granting of the lease, and 
 to remove certain locks made since the granting of the 
 lease; Lord Eldon doubted whether he could decree or 
 order repairs to he done, or a work to be restored. But 
 ultimately made an order, by which the defendant was re- 
 strained from impeding the enjoyment of the plaintiff by 
 keeping the works out of repair, and from preventing such 
 his enjoyment by the use of amj locks erected by the de- 
 fendant, or by contiindny the removal of a particular stop- 
 gate (j). 
 
 The principle of Lane v. Newdigate was adopted in 
 Rankin v, Huskisson {k), where the Commissioners of 
 Woods and Forests had, under the 7 Geo. 4, c. 77, en- 
 tered into an agreement with a club for granting to them 
 a lease of part of the site of Carlton House to build 
 thereon a club house; and it was part of the agreement 
 that a part of the said site adjoining to the part to be let, 
 should be laid out as an ornamental garden, and no build- 
 
 (i) 10 Ves, 192. removal is not anything in an existent 
 
 (j) The objection to this form of state, but a mere past fact, and that 
 
 order does not appear to have occurred therefore it musi be incapable of being 
 
 to the counsel who argued the case, actively continued. 
 
 that, perhaps, strictly speaking, when (k) 4 Sim. 13. 
 
 a certain thing has been removed, its
 
 262 MTATIKG MrROSOPUL ACTS [PAllT II. 
 
 ings erected thrre^^n. The club built under thi« og^ree- 
 ineiit n tlijh hoii«M», und then th»* ('oinmn»«i»»iicn j>eruuHe<l 
 till' (U'lctulantM llutikiHitr)ii mid l4i\%ley ti> cuuiiiuMin* bnild- 
 inj» Htubleft on the plot of ^jround Bjjrued to ho laid out 
 an tin oniiuurutnl ^iinlpn. Sir U. Slmdwrll rmtruiiied th«« 
 proHTCutJuii of nuch biiildin^n, or the rn-clnni uf "•■* ■>'' "m, 
 mid in<lirrrtlyrom|>cl|p<l the removnl of thobiiil 'ly 
 
 roiiumnced, by making an onler rentrwininj; the drtrnduntw 
 from prrmittint; nuch part of the Huid buildint; n« had 
 \h'vu ulrrjulv prectrd on tlir part *>( the nili- n^^rwd to be 
 laid nut a« an omaincntal gwrdcn, /rom rrmainimf thereon 
 until flirt firr nrilrr. A^niii, in u very late raHe(/), the 
 mime point fxcnrrfd. In that ra.«e a niilway romjmny, in 
 case it shoiiM roqiiiro, in the prosecution of itn works, to 
 cut throii'^li or othcrwiHf render inipn«<*al»le or n • nl 
 
 nnv roaci, was Itonnd, hcforc any road " hIioui < iit 
 
 throu«;h, miscd, sunk, taken, or injured an aforenaid, to 
 cause another i^«mkI ami suflicieiit road as the ra«<' nii'^iht re- 
 quire, to be set out and made instead thereof, as conve- 
 nient for paRsentrors and carriapes a» the road to be col 
 throufjli, sunk, taken or injured as aforcfwiid, or an near 
 thereto as mii;ht l>e," 
 
 Tiio raihvuy company, in llii; j)roseculion of its opera- 
 tions, cut throu<j;li a particular street, so as entirely to pre- 
 vent the passage of" carria«ros and hornes through it, with- 
 out previously makinij instead thereof any other convenient 
 road ; whereby the plaintiH', a livery -stable keeper and 
 coach-master, was compelled to take his carriages and 
 horses round some distance throu<^h a very ditVuiilt and 
 dangerous road, and had in consequence lost nearly the 
 wliolc of his business. The prayer of the l)ill was. among 
 other tilings, that the company might be decrcctl to make 
 and set out a proper road or communication for horses and 
 carriages and passengers along the street in question, so 
 
 (/) Upencfr v. Jjoniifln and Birmingham liailwati Company, 8 .'*iin. 193 ; I 
 Rnil. r.i-; 159,
 
 CHAP. VI.] OF A SPECIAL NATURE. 263 
 
 as that convenient access through it for horses, carriages 
 and passengers might be made; and that in the meantime 
 the company, their servants and agents, might be re- 
 strained from cutting through or injuring, or from contimi- 
 ing to cut through, stop up and injure the horse and car- 
 riage road leading through the street to the pubhc road. 
 
 The defendants demurred generally to the bill, and one 
 of the grounds on which the demurrer was argued was, 
 that the Court had no jurisdiction to compel parties to 
 take active measures. On this point the Court said, 
 " The power of the Court to grant that species of injunc- 
 tion which Lord Eldon granted, namely, restraining a party 
 from allowing a thing to continue, and which has the 
 effect of making him take some active measures, has been 
 since recognized and acted upon ; and I do not see why, if that 
 species of negative injunction has been adopted, it should 
 not be adopted here, so as to prevent the parties from con- 
 tinuing the excavation in its present state, and from 
 making the excavation greater. The injunction asked for 
 so far as it restrains the defendants from widening the ex- 
 cavation, is quite of the common sort, but so far as it 
 seeks to prevent its continuance it is of a negative kind; 
 but it has been adopted by Lord Eldon." His Honor ac- 
 cordingly overruled the demurrer, and afterwards granted 
 an injunction (m). 
 
 9. Although however this jurisdiction may be considered 
 now too firmly settled by authority to be shaken, it has 
 not met with unqualified approbation. In Blahemore v. 
 The Glamorganshire Canal Company {71), Lord Brougham 
 appears with reluctance to have admitted the existence of 
 the jurisdiction, while he refused to exercise it, chiefly on 
 the principle laid down by Lord Eldon in Attorney- 
 
 (m) 1 Rail. Cas. 170. The Lord terms, but did not repudiate the prin- 
 
 Chancellor on appeal discharged the ciple of the Vice-Chancellor's deci- 
 
 order for an injunction on special sion. 
 grounds, putting the company on (n) IMy.&K. 154.
 
 264 iTAYIKC WROKOPUL ACTs fl'AUT 11. 
 
 General v. Cleaver (o)^ wilh rffereiice to lln* greul tviiul 
 of inischit f tlmt luijjht U" cauM-d by c«)in|Mllin<4 the de- 
 Iciuluntfi titlirr l«» hUhjHiul llnir niivi^lioii ullo^cllu-r, or 
 to n-Htore tlinr wurki, if lliul were practicable, lo ihe tUile 
 niul loiulilion ill which lh« y wtrt- uiuiiy yearn Ixfure. In 
 ihr caw Uforr IajmI Hruughain, Oic injuiitlion pruy«-<l wan 
 aiuong other thingt to mtniiii the muol comimny from 
 " coiitinuin};" a crrtain ronumiiiicatioij tiiul \> i 
 
 ih-pth than they win- mj the y«ar 1T!»H, and fi .; 
 
 the bottom and Mib's of the canal to remain not kufliciciitly 
 pti(hih-d and secured," and from " rontiniiint; to h*avo'* 
 lertuMi other works " out of repair," 4:c. This would have 
 been an order plainly fmined on the principle of Lttne v. 
 Ai'trili(/ate, to compel tin- parties to do certain subHtantivr 
 acts, such as diininishin^ the si/.e of the baiiin, repairing; 
 the works, or piiddliii|,' the bottom and sidcR of the canals, 
 under the- pretence of restiaining them from allowing Riich 
 works to remain in a state in which those things were un- 
 done ; and as to so much of the order, the Lord ('hancellor 
 refused toexercis»c the jurisdiction of the Court, saying, "the 
 leading j)riiuiple ou which I |)roceed in dealing with this 
 application, the j)rinciple which as I humbly conceive ought 
 generally speaking to be the guide of the Court, and to limit 
 its diseretioii in granting injunclion*;, at least wh<re no v<ry 
 s|)ccial circumstances occur, is that only such a restraint shall 
 be imposed as may suffice to stop the mischief complained 
 of; and where it is to stay further injury, to keep things as 
 they are for the prcscnt(y>)."' So in Milli(/an v. MilchcU[ff) 
 his Lordship refused to make an order to restrain certain 
 trustees of a Presbyterian Church from preventing any |xr- 
 son, being a licentiate or minister of the Scotch church, 
 from officiating or conducting public worship there. As to 
 that his Lordship said, " he should not extend the |)Ower 
 which tliis Court, in cases of a peculiar nature, has some- 
 Co") 1« Ves. -211 {q) 1 My. .«i K. 446. 
 (/.) Sc€ 1 My. & K. 185
 
 CHAP. VI.] OF A SPECIAL NATURE. 265 
 
 times exercised, of ordering a thing to be done under the 
 form of restraining parties from preventing it." 
 
 Lastly, in a very late case(r), where a railway company 
 had partly constructed a viaduct over a public street, 
 which the plaintiff alleged was not according to the act of 
 parhament, and an injunction was asked, not only to re- 
 strain the company from proceeding with the building, but 
 to restrain them from suffering that which was already 
 constructed to continue, Lord Cottenham said, that un- 
 doubtedly it would be an extraordinary interposition of 
 the Court to order an erection of that nature to be re- 
 moved, and on the ground that the plaintifi' had to a con- 
 siderable extent acquiesced in the progress of the work, 
 held that there was no case made for such extraordinary 
 interposition ; although, from the order made by his Lord- 
 ship, it is clear that he thought the same circumstances 
 afforded ground for an injunction to restrain further pro- 
 ceedings with the building. His Lordship does not however 
 seem to have disputed the existence of the jurisdiction. 
 
 10. On the whole I submit to the learned reader that as 
 regards the doctrine under discussion, the authorities esta- 
 blish two points : L That the Court has jurisdiction to 
 compel the defendant, by means of aninj unction specially 
 worded, to do a substantive act, such as removing build- 
 ings already erected, or the like. But, 
 
 11. That the Court will not at the present day carry the 
 jurisdiction further than it has already been carried, and 
 will rather be astute to find reasons for refusing than for 
 consenting to exercise it. 
 
 11. Before concluding this part of the subject it may be 
 observed, that the Court asserts no jurisdiction even by a 
 circuitous mode to compel a party to carry on a lousiness, 
 thouoh it may under circumstances have jurisdiction to 
 
 ()•) Attorney-General v. Manchester and Leeds, Raitivay, 1 Rail. Cas, 436, 
 451.
 
 ^OO WATIKO irfiOKOPl'L ACTH fPAIlT II. 
 
 prevent him from tlenlm^; with his |>ro|X'rtv no ns to prochidf 
 hinj««tlf ("rum currvin}; on a huHint**^!*, and th<rcliy from fiil- 
 lilliiii; hiti cnvcnuntii n» n Iouhcc. The Court will, thtirforc, 
 nncicr circumHtniiroo, retrain a itale by the Imscc uf nn 
 inn, iS ■ ' funiiturc ; but will not n*iitmin him 
 
 fn»n» <l < p t!ip lutiisf oi>rn nn an irm(*). 
 
 12. ICijiiiiv «ill intrrlun- by iiijunctmn in m • 
 whrrr u |mrly ix Im)ju)«I by n trnnt actual (»r im; 
 where one {K^rffon Htandx in 8urh n relation to another uii to 
 br invrsUd with soujcllnntr of a fuliiriary or confidential 
 character ; or where w ith(»ut either Ijcing bound by a truni 
 pro|)crly »o called, or lillinj; a character of itwrlf ini()lying 
 confidence, a |)crson has df facto a confidence rc|)o*cd in 
 In' in. 
 
 I. Thus where a church was vested in tnmtecu to Ix* 
 used as a j)lace of rclitjious worship for f -hristianji of the 
 Scotch Presbyterian Church, and the oflicc of minister 
 being vacant, a portion of the tnislccs employed as a tem- 
 porary measure lay j)en!ons and other ; lulv 
 qualified, to preach ; and had so conduct' .and 
 continued so to conduct themselves as to evince an inten- 
 tion to elect a person to be minister, not re;^ularlv a licen- 
 tiate or ordained minister of the church of Scotland : an 
 injunction was granted, on the ground of contravention 
 of the trust, to restrain the election of a person to be a 
 minister of the church, who should not be regularly liccn.<^d 
 as a preacher of the church of Scotlond ; while it was re- 
 fused as to restraining the temporary employment of per- 
 sons not so licensed, to prcof h ' ' ■ 
 
 n. On the ground of implied trust. — In a case where the 
 
 steward of a nobleman received lanje ^unis from the rents 
 ol his master's estate, of w hich he rendered no account for 
 
 (i) Hooper v. nroderick, 9 Uw (t) Milligan x. Mitrhtll, 1 Mj. & 
 
 Journ. 321 K. 446.
 
 CHAP. VI.] OF A SPECIAL NATURE. 267 
 
 a great many years, but purchased stock in his own name 
 to a very large amount, and it appeared that some of the 
 stock was purchased with his own money ; Lord Eldon 
 granted an ex jjarte injunction to restrain the steward 
 from transferring any part of the stock until answer, say- 
 ing, " that as the mischief to the defendant in granting 
 the injunction as to the whole, arose from his own wrongful 
 act in mixing it, he should do less mischief by fixing the 
 injunction on the whole till the defendant informed the 
 Court what was his master's, than by not fixing the injunc- 
 tion on any part, giving the defendant the opportunity of 
 doing the enormous injustice, of which, by the affidavits, 
 he appeared capable (u)." 
 
 But where the deed declaring the trusts of a dissenting 
 chapel was silent as to the mode of electing the minister, 
 and as to the duration of his office, and a minister was 
 elected according to the custom of the particular sect ; 
 the Court held, that if at a subsequent meeting regularly 
 held by the members of the church pursuant to their cus- 
 toms, the minister first elected was deposed and another 
 elected in his place, it had no jurisdiction to restrain the 
 second from officiating, or the members of the congregation 
 from impeding the first in officiating (x). 
 
 The dealings between a tradesman and his customers 
 may in like manner become the subject of equitable inter- 
 ference and account, where there is something which the 
 Court can fasten upon, such as fraud and imposition on the 
 inexperience or imbecility of the customer (y); but not where 
 the case is one mainly of improvident orders complied with 
 by the tradesman, and no refusal at any time to deliver ac- 
 counts ; and therefore in a case where the plaintiff had given 
 securities to the extent of 7000/. to the defendant, a coach- 
 maker, for articles supplied in the way of his trade, although 
 the case was one of gross improvidence, yet as bills had 
 been regularly delivered and might have been questioned 
 
 (it) Lord Chedworth v. Edivards, (x) Porter v. Clarke, 2 Sim. 520. 
 
 8 Ves. 46. (y) 9 Ves. 474.
 
 2GH ATAYIVa WROKCrUL ACT« [I'AIIT 11. 
 
 lit any tunc, the Court would iiui, iiHrT tho uccuuiit had 
 bet a Aullfntl to rcuiaiu uiuiivmti^uLcd for »cvcnil yciin*, 
 mitniii) the «hcntr frum M*lling goudu taken in execution 
 hy thr dcff iidaiit upon judginentji undof thoM •ocurilicii {z ). 
 
 Ill <>n the ground nf thr |iarty ftlhiii; u rhumrter in 
 it»clf hdut'inry or ronridcniiul, t»r Uin^ ilr facta the dcpo- 
 Hitiiry of coiifidenrr, lh»' Court uilirftn'ii in unn> •-■ - !•» 
 ri'Htrnin ti iMtJintor nho hu« licen cni|doycd h\ \. 
 
 from iii'tii)^ for unothrr u^nmMl hi« former chent. Ihuii in 
 (/ntliHoiiilrlci/ \. I'tinton (ft), \Atu\ KIdon dcrcidcd in con> 
 fonuitv Mitli thr opiinoiio of nil thr jud^t^A and the ImrohH 
 of the exchequer, as well nii of the MoHtcr of the RolU und 
 Vioe-rhnneellor, that a >K^licit«»r einploy<*<I for A., m a 
 cuusr l)el\ve«'n A. and 11., ranni>l Im- |H*rnnlted voluntArilv 
 tt> (jint the service of A. and act as the twjlicitor of 15. m 
 the sanu' cnnsr. In lirirltcnn v. That j. * ' nr 
 
 was made to extend the jmnriple n| tlj to 
 
 prevent n |)or8on wln» had heen clerk to the Holicitor of the 
 plaintitl (liirini; the jiro^ivHS of a Huil. ami who hnd since 
 \hv\\ adnnttcd a .soluMtor and coninienccd pmcticc, from 
 actin<4 a.^ the Kolieitor of the defendant ; but lx>rd KIdon 
 refused to act upon so wide a principle, and said, " the 
 argmnent j;oes to this extent, that if a gentleman has lx?cn 
 five years a clerk, and in that period hap|>cnH to have to 
 d(\nl with the causes in which his master is cm|)luyed, that 
 he cainiot afterwards l>ccome solicitor for any of the par- 
 ties aj:;ain.<t whom his master was employed." His I/ord- 
 ship i-aid, he thought that would l)c going vet)' far, and 
 that bcftue thus shuttini; up the means of employnunt, it 
 was ini'und>ent on the (Joiirt to .stc that there was .s<»me- 
 thing more than hypothetical mi.schief to l>e guarded 
 ai^ainst, and ho refused to make the order in the absence 
 of allegations of particular mischief to the plaintitV from 
 tho employment of the party objcctetl to. But though it 
 
 (:) Lord Courteney v. Godtehalt, 9 (a) 19 Ves. 261. 
 
 Vcj. 473. "^' '". ■•""
 
 CHAP. VI.] OF A SPECIAL NATURE. 269 
 
 seems that the Court will not restrain a solicitor any more 
 than counsel from acting against his former client, simply 
 on account of the relation which has subsisted between 
 them(c), yet where a sohcitor has been engaged for liis 
 client in carrying through an agreement, in the progress 
 of which he has acquired as solicitor a knowledge of 
 matters concerning the validity of the agreement, he will 
 not be permitted afterwards to act as solicitor for the plain- 
 tiffs in a suit instituted by them for the purpose of setting- 
 aside that very agreement ; nor to communicate to such 
 plaintiffs any information relating to the agreement which 
 came to his knowledge confidentially as the solicitor of 
 his former client ; and if he have a partner, such partner 
 will also be restrained from acting as solicitor in the suit, 
 although he may not have joined the partnership till after 
 the transaction relating to the agreement took place (f/)' 
 An injunction will not, however, be granted to restrain a 
 solicitor from disclosina; matters come to his knowledge 
 respecting the rights of parties by whom he has been em- 
 ployed, by giving evidence in judicial proceedings or other- 
 wise ; for that would amount in effect to saying, that the 
 Court of Chancery will not trust other Courts with the con- 
 sideration of whether he ought or ought not to answer a 
 question put to him, as to which the Court of equity knows 
 nothing (e). But if a solicitor having been discharged 
 by his client becomes the solicitor of that client's op- 
 jjonent in a suit, he ought not to give up papers of his 
 former clients placed in his hands by them, to any one but 
 such clients; and on a motion propel y made, he might, 
 perhaps, be ordered to give them up again {f). So an ac- 
 countant employed by solicitors will be restrained from 
 disclosing or making use of information obtained by him 
 ii) the course of his confidential employment by them {(j). 
 And where a guardian, after the majority of his ward, 
 
 (c) Jac. 304. (/) Jac. 82. 
 
 (d) Davis v. Clough, 8 Sim. 262. {g) Evitt v. Price, 1 Sim. 483. 
 
 (e) Beer v. Ward, Jac. 77.
 
 270 bTAYINO WUUMOVUL ACT* [PABT 11. 
 
 L-uiitinuu* ilic muiiai^cujcut oi Um? wunJ'* pn.|KTty,ttllliougli 
 ul the nnuu*t ol llio Hurii, kccaiiiiut be jicruiiltcd to »cpu 
 ralo llic uicuunU i.ubj.*.'(|ucul from iho*** unlcxiJenl i- ' i 
 iuujuii(y,uiul will be rcjiUuiiicii by iiijuiuUoii fioiu bnu^ ; _ 
 uii ucliou lo recover uii uUc^ctl l>aluncc on Uio ucco^llt^ 
 Miuco U)o tuttjonty, on lite |>lttJiiUtr, the >\uni, po 
 1, ' o ('ourt, JJut HUlUH ruriiiiiiK part oi hulu 
 
 fv, . uilvunccti |>cr»uuully to the wuni uller luu, 
 
 tuiil thut lact not denied by Uiu wmrd, will be ordered Uj be 
 )»tud iiuuicdiutely to the guiirdiuii (A). 
 
 13. On ll»e principle of the implied trust Ixitwicn iioh- 
 riloi iiml rlifnt, llii- Coiirl rifiiw h to uider tin ^ 
 
 I Ileal." of a liniJ to Inr tlrlivrn d by one i»l ll. 
 lo unolher, without the coiiMcnl of the clienU. And wliere 
 two Holicilors curried on I" 
 becuinu hunkrupl, und ihc . _ , 
 
 of the biHtks und |)U|H:ni of the |)urtnertihip, and excluded 
 the other partner from all interference in tli -f the 
 
 partnership, the C«»url refused to order tli . ^..».c» lo 
 ilehver up the paper* of client* to the solvent |>artiier, 
 without the consent of those clients (i). 
 
 A solicitor's riglit by way of lien on hi« client's pa|)erH 
 and securities in his hands, does not extend to entitle him 
 to an injunction to restrain that client from bringing 
 actiuiis against the parlies liable under such sccurilies, if 
 llic action can be brought ollierwisc than through the 
 medium of the actual inslrumenls themselves; nor to restrain 
 him from receiving the money secured by them (A). 
 
 14. An attempt was made in a very late case to claim 
 the interposition of the Court against the eiiij)loymcnl of 
 particular counsel, on s|)ecial grounds of alleged impro- 
 priety- The case was, that a particular counsel, who had 
 
 (h) Mellith V. Uelliik, 1 Sim. & 297. 
 Slu. 138. (fc) Sudman r. HV66, 4 .My.&Cr. 
 
 (i) Davidton v. NapUr, 1 Sim. 346.
 
 CHAP. VI.] OF A SPECIAL NATURE. 271 
 
 advised the defendants in a suit, and drawn the pleadings 
 on their behalf, being afterwards promoted to the rank of 
 king'vS counsel, received a retainer from the plaintiffs, and 
 the defendants moved to restrain him from acting as the 
 plaintiff's counsel. The Court said, that as the defendants 
 had not taken the usual means of securing the professional 
 assistance of the particular counsel, it could not interfere. 
 And it seems doubtful whether the Court has any juris- 
 diction to interfere in questions arising on the practice of 
 retainer {I). 
 
 15. It appears by a very late case(m), that the Court 
 will not interfere against a legal title, where there is even 
 a doubt established whether the equity set up against it 
 is subsisting. It is not necessary to show that such equity 
 is absolutely displaced. But if the application is not to 
 assist an equitable against a legal title, but as between 
 parties both claiming only equitable titles to restrain the 
 party in possession of an equitable title from acting under 
 it, then equity will not so interfere on a merely doubtful 
 state of that equitable title (n). 
 
 16. In the case first referred to (o), the trustees of a dis- 
 senting chapel and minister's dwelling-house had brought an 
 ejectment against the minister to obtain possession of the 
 trust premises. The congregation was of a denomination 
 whose custom is, that none but communicants at the 
 Lord's table have any voice in the management spiritual 
 or temporal, and a majority of the communicants decides. 
 A meeting of the body at large, at which a majority of the 
 communicants was not present, prepared a letter, wliich 
 was afterwards signed by a majority of the communicants, 
 to the minister, requesting him to tender his resignation. 
 This he disregarded, and a meeting was afterwards held of 
 
 (/) Baylis V. Grout, 2 My. 'k K. (n) Leslie v. Birnie, 2 Russ. 114. 
 
 316 ; 19 Ves. 276. (o) Attorney -General v. Aked and 
 
 (w) Attorney-General v. Aked and others, 7 Sim. 321. 
 others, 7 Sim. 321.
 
 272 STAYING WBOSGPIL ACT»» [l»Ain II. 
 
 the IruhtLxi, M*ut-liulilerH (^ciienillv, uikI cuiiiinuiiicuiit>, ui 
 wliicli u iimjurity uf the latter ilul ultciul ; unci there a 
 ruHulutiuii WHA |niah4xI, thnt it wui» the opiiituii uf th« i)H*et- 
 iii}{ thut the miiiittter uu^ht tu n hij^ii. lie htill reluHeO, 
 mid oil thiM uji ejectment \\u» bruut;ht ; tiiul Sir L. Shiul- 
 well, V. C, rcfunctl an injunction to Mtuy the |ii 
 lit luw. It niiiHt be ubHerved, thnt by thf^ ' 
 Honor did not ut ull decide whether the i 
 intninter were such an to amount to a legal dntmiMul ; but 
 only thill they were not ho cleurly iiuijuitubh' iih to call for 
 the interlerence of the ( 'ourl to prevent the truHteen frwm 
 proceeding on their lei;al title. The dccii»iun i» therefore 
 not inciiiiHJstent with Ia'sUv v. JJirnie (jA. In tli ' i 
 
 ilia|H'l was vested in trustees, in trust for the con.! 
 whii were of the Scotch Presbyterian |K-n«uaiiion ; the con- 
 greL;atii)n consisting uf the ininistor, elders, tnemhirt, and 
 seat-liolden*. A vacancy t>ccurring in the oflice of ininu»- 
 ter, a minister was clecte<l by the manbers, that is the 
 coininunicants, excluding the mere srut-hoUUrs, and it 
 was not clear by the evidence whether seat-holders had or 
 not voted usually in the election of a minister. Lord HIdon 
 rel"ust;d on this state of circumstances to restrain the mi- 
 nister from preaching, chiefly on the ground that no ol>- 
 jection being made to his chai*acter and doctrine, the 
 propriety of his election could not be determined on 
 motion. 
 
 Of course parties claiming under a trust, and asking 
 tlif interference of c(|uity on their l^ehaif in respect of 
 such title, must clearly show the continuance of their title 
 under it. Therelbrc where lands were demised to trus- 
 tees, on trust for persons being a congregation of a par- 
 ticular ])ersua.sion, and the minister elected by the gene- 
 ral body secede with a majority, and join another con- 
 gregation not following the same |)crsuasion or subject to 
 the same discipline, it was held that the scccders were 
 not the congregation for whose use the j)rcmiscs were in- 
 
 (p) Leslu V. liirnif, 2 Huss. in.
 
 CHAP. VI.] OF A SPECIAL NATURE. 273 
 
 tended, and the minister failed in sustaining an injunction 
 to stay ejectment brought by the trustees to turn him out 
 of the chapel and dwelling-house {q). 
 
 17. An agreement to give a right is impliedly an agree- 
 ment to do nothing inconsistent with the enjoyment of 
 such right. On this principle, if the owner of grounds 
 grants a way-leave or wagon way over them to the lessees 
 of adjoining collieries, and then grants a right to use such 
 way leave to another party, who contracts with the parties 
 having the right to the materials of the wagon way for 
 their permission ; although these latter parties might at 
 any time remove such materials, yet, if the owner of the 
 land over which it passes, afterwards acquires the right of 
 making his grant effectual by taking an assignment of the 
 materials of the wagon way, he will be restricted from 
 removing them, as that would be defeating his own grant (r). 
 A fortiori, equity will interfere if the covenant is express. 
 Thus, where an author composing a work for a publisher, 
 covenants in strong terms that he will not write or publish 
 any abiidgement of his first work, or publish any other 
 work injurious to its sale, he will be restrained on the ground 
 of that covenant from publishing another work on the same 
 subject, containing much of the matter contained in the 
 original work, although there may be great doubt on the 
 question of infringement of the copyright of the first. 
 This point arose in the case of Barjield v. Nicholson (s) ; 
 the defendant, Nicholson, had composed, under a contract 
 containing a covenant on his part of the character above 
 mentioned, an architectural work for the plaintiff", in which 
 were many figures proved to have been already published 
 in other works. Nicholson then undertook a new work 
 
 {q) Broom v. Summers, 10 Law Russ. 356, for the grounds of the de- 
 Jour. N. S. 71. termination of the Lord Chancellor. 
 
 ()•) Newmarch v. Brandling, 3 The case is there reported under the 
 
 Swans. 99. name of Barjield v. Kelly. 
 
 (s) 2 Sim. 6c Stu. 1 ; and see 4
 
 274 xToiv: wKOMOyUL ACT6 [luni u. 
 
 lor tli« oil.. I ... i. 1.1, 1.11 Krily, ctrntainin^ luutiy uf 0. — 
 ti^uruit ; uiut lie Kworu lliut lie «lid iiol take the ti. 
 from bin ftntt work, but from the on^iiml iouroM. On 
 
 thi« Htutr of tliiiii^, tUv \'ur-(*h;iucrllor with of op 
 
 (hat thrrt; wiu ik> copyrii^ht iii the hmt work, aiul thi . 
 that even if the socood bad been tokon froui tho lir»i, 
 thiri> wouiti have Im^cd ho |>rouiul for an iiijuni'tton on the 
 iiUM°«* t^roiiiiii of co|tyri|^ht, uiiil accurtliii^ly ili»iKil\«*ti, un 
 u^ainttt Kelly, an injunction which bud been obtained ex 
 jHtrtr ; but HUHtaiiiiHl it on thr ground of thn rciveiiunt 
 uu;uiii»t NirhoUoii. The LonI ('huncellor, luivk(\rr, on 
 u|i|M>nl, hrld, thul Kelly having notice of tho covenant 
 rnterril into hv iN'it-h(i|H4.>n, wiiK ImxiiuI by it ; und 'i 
 
 the injiuiclion at;ainht Kelly uh well us ti^^aiintt .^ 
 ito fur UH to reHtruin Kelly front uniii^ the name of NichoN 
 Hon, in aid of tin- publication of the hccoimI w>>rk. Hut ni 
 onler to bUHtuin an injunction a^ain»t a party tliuh uiiectcd 
 by ibo Covenant of another, there inuiit lx> ullegution and 
 ]»roof that he hart published in infructioii of the covenant, 
 after he hud notice of it ^O* 
 
 |M. It in well known that in matters of aurcemcnt time 
 may be of the essence of the contract, ho that if that winch 
 is contracted to be done iH not done within the H|K>ciricd 
 
 (() Id lior/itld V. KfUy, the pUtn- Niclioltoo, «ras, Uial Kelly had only 
 
 titf, at llic hearing of ihc cauu>, lot! noiiccof ibecovcoanl, for Um parpoa* 
 
 the injuoctiua attd account against of maViug him rMpoo«ibl« to \h» 
 
 l>o(li the Jcrendants, by a tiogulat plaintiff, from the Uoic of filing ih« 
 
 cuniltiuation of the al>ovc rule with hill. And ihon a* th« nri -mal hill 
 
 the I ulcs of evidence. NirhoUoo, hy <■ u 
 
 lii« answer, insiatcd that (he roven.inl c>! 1 
 
 was a fraud upon him ; but Kelly, by a« thcic wa» no •u\ , ' I 
 
 his uDsnci, did not impeach iu %ah- alleging that fact. .« 
 
 dity. The plaiotirt* h-id not cntcrvil aiuwcr, denied U ; there wa» not be- 
 
 ioto evidence, and was not allowed to fore the Court any breach, or ihrvat 
 
 prove the deed ■ iid t«c* as an exhibit, of breach of the covenant, (ttbaeiiuenl 
 
 as agaiosi Nicholson ; and as against to the Umc when Kelly had, upon the 
 
 Kelly, although it was allowed to be evidence, DoUce of it ; and therefore 
 
 pioved iii.i roc^, the con»et|ueocc of the iojuoctioD aitd locouot fell. 
 there being no proof of it against
 
 CHAP. VI.] OF A SPECIAL NATURE. 275 
 
 time, the agreement shall be determined ; but the party 
 entitled to avail himself of the forfeiture may, by acts in- 
 consistent with such determination, lose the benefit of it in 
 equity. Thus, where A. agreed to let to B. in consideration 
 of a sum to be paid by bills of exchange within six months, 
 and one of the bills of exchange not being taken up in time, 
 the lessee wrote to tlie lessor, stating that he would take it 
 up three weeks later, and the lessor made several appoint- 
 ments for an interview with the lessee on the subject, and 
 after he had received the lessee's letter, left with him a 
 notice from the superior landlord for payment of a half- 
 year's rent ; these acts were held inconsistent with a clause 
 of forfeiture, by which, if the lessee did not pay the whole 
 sura within the six months, he was to deliver up possession 
 and pay ^150 ; and the Court therefore continued an 
 injunction to stay execution in ejectment, the lessee paying 
 into Court the money due on the bill of exchange, and 
 giving judgment in the ejectment (?<). 
 
 And other cases may arise in which parties will, by acts 
 inconsistent with the due performance of an agreement, 
 deprive themselves of the right to claim the interference 
 of equity to enforce performance of the agreement. Thus, 
 although the terms of a partnership agreement will be 
 enforced if the parties have acted upon them, yet if they 
 have departed from them; as, for instance, if the stipula- 
 tions as to taking accounts having specific reference to the 
 conduct of the trade of ship-brokers and agents, the parties 
 have transacted as partners other business to which such 
 stipulations are not applicable, they will be held to have 
 abandoned such stipulations, and the accounts to be taken 
 in the usual way ; and in such a case the executors of a 
 deceased partner were restrained from proceeding on a 
 bond entered into by the surviving partners, in pursuance 
 of the terms of the partnership, to the executors of the 
 
 (u) Hudson V. Bartram, 3 Mad. 440. 
 
 t2
 
 .int STAYING W IIOM.lll. AiTfi 'I'Mil II. 
 
 til ' ■ irliH-r for |iuyiiuiit t>f the uiiiouiil v\ lii> bhure, 
 
 ilht iiiiL' ' I llu » .iU''«-(.« . 
 
 II'. A |ii-r>»oi) iii.iv aUw Kmm- lh<- Uiulil i>\ iii'< '■^1*' ^^ 
 uii iiijuiictiuii III aid of n|)ecific |xTfi»niittnrf by lni-lie«. 
 ThuM, where A. piiri IidikhJ luiult of I), uiid U. cuvcnaiiUni 
 ihnt III' would not »»uH«t btllldlll^n to bo fM-tlt«l ti 
 luiid udjoiniii^, cxifpt of a ^i\eii cluMt, and A. u^:>^ 
 III a >»iil)Ht(|utiit ^^llll^•c en?cling further buildin(;M ta 
 coiitniMMilioii of ilic cuvciiuiit ; A. then caiin- aArr Home 
 roiiHidcrubIt- driay for an tnjuiictiun ; but Lord Kidoii re- 
 fuHcd it, Miying, the plaiiitiil'iiuiht t>c left to hi* remedy at 
 law (y). 
 
 J(i. It li;i> Ik(;u IuM llial wlitTf a party lct>* picinise* 
 Willi a proviso lliat if llicy should be tranted fur buiUling, 
 llic Icssoe kIuiII deliver them up ; it is not enough to r<*»iiJl 
 a motion for an injunction to stay proceedings at law for 
 the recovery of the premises, that the IcMor should by 
 his answer swear that he told the lessee he ha<l entered 
 into a tniiti/ ; that is no |)roof that the piciuisch were 
 actually wanted for Imilding. He must show at Icafit that 
 he had entered into an aijrcemvnt { z). 
 
 Hut in (ioutjh V. Worcester and Birmiuijlunu Canal 
 Companj/ (a), where there was a covenant in a lease that if 
 t/ic lessor should he minded to set out any part of the pre- 
 mises for a street or streets, or to set or sell any part thereof 
 to build upon, the Court luld that if he took the land 
 with the bona Jide iiitenti(»n of building u|K»n it, even 
 though afterwards he found he could not, so that the in- 
 tention was not finally acted upon, that would not raise an 
 equity for the tenant. 
 
 (i) Jack%on V, btdpiick, 1 Swans. Uus». 18. 
 460. (:) KusmII v. C^ggint, 8 Vcs. 34. 
 
 (w) Hoprr V. Uilltamf, 1 I urn .\ (..) ». \os. A'tli.
 
 CHAP. VI.] OP A SPECIAL NATURE. 277 
 
 21. Where a party has contracted with the owner of an 
 advowson for the sale of the next presentation, and the 
 contract not being carried into effect living the incumbent, 
 the vendor refuses to complete after his death, the Court 
 will restrain him from presenting, and the bishop from 
 instituting, or in the case of a lapse pending the suit, from 
 collating any clerk not nominated by the purchaser {b). 
 
 22. Where a person agreed to let farms, the leases to 
 contain covenants for managing and quitting the premises 
 agreeably to the manner in which they had been and 
 should be managed and quitted by the then present tenants ; 
 and it appeared that such tenants held on under the terms 
 of an old lease containing covenants as to the manage- 
 ment and quitting, but in quitting the premises they 
 broke those covenants by removing crops, &c. with the 
 knowledge and without any objection made on the part of 
 the landlord; the Court held that there was no ground for 
 restraining the tenant from taking crops, Sec, and other- 
 wise acting as the previous tenants had acted in managing 
 and quitting the -premises, although such conduct was 
 contrary to the covenants in the old lease and to the 
 terms on which it was assumed that the previous tenants 
 held (c). 
 
 23. Of course it is essential to warrant the interference 
 of equity in aid of specific performance of an agreement 
 by injunction, that the party against whom the relief is 
 asked should be competent to bind himself, and should 
 have actually done so. Therefore an agreement entered into 
 by an infant and his father on the occasion of articling the 
 infant to an attorney, that he shall not practise after his 
 articles within a given distance of the place where he was 
 articled, and shall give a bond on coming of age to that 
 
 (i>) Nicholson v. Knapp, 9 Sjm. 326. (c) Liebenrood v. Vines, 1 Mer. 15.
 
 278 liTAYlSO WBOHOrUL ACT* [PAin M. 
 
 effect, will not be cnforwd npiintt the infmni by injuiuUou 
 after Uv huH uttumr^i lii« a^t-, wlu-re il m.|»«ini timt he «iu* 
 never nppUcd to to conftnu the ai^Teemeut or to cxivule the 
 U.iul. unci he ^weam by hi* un«wcr ihut he never cuncnrre<l 
 aJUr ionun-^' of jim- ni ihe ctiveimnl, uikI did not uiidcr- 
 Hii\ui\ thai Ihe liond wa» ever intendMl to be enforced (*/). 
 
 (4) C'«pM *. IfwifM, 3 IUm. 367.
 
 CHAP. VII.] 
 
 OF A SPECIAL NATURE. 
 
 279 
 
 CHAPTER VII. 
 
 Of Injunctions between Partners. 
 
 1. General Objects of Injunctions in 
 
 Partnership Transactions. 
 
 2. Tlie Partnership must be complete, 
 
 to justify the Interference of 
 Equity, 
 
 3. Court will not in general interfere 
 
 between Partners, tmless there is 
 ground for a Dissolutio7i. 
 
 4. Where there is a parol Agreement 
 
 J'or Partnership without specified 
 Duration, 
 
 5. Of Leases to Partners, 
 
 6. Injunctions in Cases of special part- 
 
 nersliip Agreements. 
 
 1. IN partnership transactions the Court of Chancery is 
 sometimes called upon to interfere by injunction to restrain 
 interference with or receiving the partnership funds by one 
 or more partners ; to restrain one partner from drawing 
 bills in the name of the firm ; to restrain one partner from 
 excluding another from his share of management ; or gene- 
 rally to restrain any member of a complete partnership, 
 from doing acts inconsistent with the terms of the partner- 
 ship agreement, or with the duties of a partner. Thus 
 where one partner filed his bill against another, alleging 
 great abuses, and the defendant was in contempt, an in- 
 junction was granted (a). 
 
 So if A., a partner in a firm, gives to his individual cre- 
 ditors a bill drawn or accepted by him in the name of the 
 firm,without the consent of the partners, the creditors having 
 knowledge of that fact, and taking it expressly on the 
 understanding that it is to bind only A.'s share, an ex 
 parte injunction will be granted to restrain A. generally 
 from drawing or accepting bills in the name of the firm, 
 and to restrain the creditors from negotiating the parti- 
 
 (a) Read or Reid v. Bowers, 4 Br. G. C. 440.
 
 280 STAVlSli WHOSGFIL ACTh [I'AUI 11. 
 
 oulur hill(/0. liut when cheques huve l>een ilruwn on u 
 hank, uinl«r ».i>ocml ijrtunihluiicfh by A., ihi- hnnki-ni will 
 not l>c n'Htruined (rum proefcdiiig ul law to recover Uio 
 uiiiount of imch rhrqurH, I- '' :i |)artnertihi|) 
 
 Kiilmi-ttin^ iKlwctii A. uiul u ■ "• th«- huuk- 
 
 iiiK linn, in rcin>ccl of which ihc clic<|Uiii were tirawn, the 
 Hiir\ivin;^ niiinlMrn «»r ihc huMkiii;^ (inn n«»t hu\nii4 Uen 
 uientlx'Di tif ihul purlicnhir |mrtMirhhi|., unil ilt-nNiii^^ nil 
 knowlc*d(;e of il(f). 
 
 '2. lUil liu' |)arlntrhhnj must he u tonniiclr |iarlncn»hi|», 
 vi/. the purticH must invest tluinwlves with the character 
 that, according to tin- parlncn-hip deed, they ou^hl t<. have, 
 before they come to the Court lor relief. Thus m Ellium 
 V. li'ujnoUl (([), Lord KIdon refused to grunt an injunction 
 nn a bill by son>e of the directors of a mutual inhutance 
 company constituted by deed, against another of the di- 
 rocton*, to restrain him from receiving money on account 
 of the society, and from doing certain other acl«, on the 
 u;rouiul that the society had not actetl upon its regidations. 
 
 3. And generally the Court will not, it seems, restrain a 
 parltn r from interfering in the j)ai1ncr8hip busirjcss, and 
 aj»point a receiver, unless the partner complaining can make 
 a case for a dissolution, although the acts done may have 
 been exceedingly improper. All that the Court will do in 
 such a case is to restram the party frou) doing particular 
 acts of misconduct in future (r). In the case referred to, 
 various acts of misconduct on the j)art of the defendant 
 were slated ; in particular that he had conducted himself 
 in a very insulting manner towards the plaintif}; that he 
 prevented the plaintifl" from inspecting the lx)oks, and had 
 
 (6) llootl s.Anon, 1 Russ. 412. pliinliffs the terms on which he had 
 
 (c) Aikam V. Thompton, 4 Price, drawn the bill. 
 330. In this case the alTidaviu in (d) 2 Jac. & \V. 503. 
 
 support of the bill were bv the plain- (♦) Goodman v. Whxteomht, 1 .'ac. 
 
 litTs and by their solicitor, and went ^ W. 589. 
 to show that the defendant told the
 
 CHAP. VII.] OF A SPECIAL NATURE. 281 
 
 sold goods at an under price, and exchanged others for 
 household furniture for his own use ; and that although the 
 business had been going on, no entries of any receipts or 
 payments had been made for a considerable time, but that 
 the defendant kept the accounts on small scraps of paper, 
 and refused to enter them in the books. The Court how- 
 ever refused to grant an injunction in general terms to re- 
 strain him from collecting the partnership debts and effects. 
 
 Indeed it seems doubtful whether the Court will interfere 
 in cases of breach of covenant of partnership articles, unless 
 the breach is such as to entitle the party to a dissolution 
 of the partnership. In a case of Marshall v. Colman (f), 
 the breach was, that of four partners, two had written nu- 
 merous letters, and given receipts in their own names only 
 as A., B. Sc Co., in contravention of a covenant in the part- 
 nership deed, that all such instruments should be in the 
 four joint names. The breach had not been continued for 
 any considerable time, and the bill did not pray a dissolu- 
 tion ; an injunction was refused by Lord Eldon, without 
 costs. It is to be collected, however, from the language 
 of the Court, that such a breach of covenant, committed 
 with a studied, intentional, prolonged and continued inat' 
 tention to the application of the party calling on the other 
 to observe the contract, would afford ground for the Court 
 to grant an injunction, or dissolve the partnership. 
 
 In Waters v. Tat/lor (g), Lord Eldon laid it down that 
 the Court does not interfere for the management of a joint 
 concern, to restrain a partner from acting, except as inci- 
 dental to a suit to wind up the concern and divide the pro- 
 duce. But an ea; jJa^'i^ injunction will be granted against 
 a surviving partner to restrain him from getting in debts 
 due to the partnership, where it is sworn that he is in em- 
 barrassed circumstances, and applying the money received 
 by him belonging to the partnership in the maintenance of 
 himself and family (A). 
 
 (/) 2 Jac. & W. 266 j see also 2 (g) 15 Ves. 10. 
 
 Ves. & Be. 329 ; and 4 Mad. 143. (h) Hartz v. Schrader, 8 Ves. 317.
 
 282 iiTAYIKO wnOKCiFI'L ACTS [rvRT 11. 
 
 4. Whfte a |>Qr1n«*p»hi|> U roiuhtuUxl l»y v«»rli«l arnium-- 
 mcul, withuul nuy |»njM»o n» l«» iluratioii, it im n purtmrHhip 
 at will, «ik1 cilliCT party may put an end to it wlirn he 
 likr«; thrnforr in • nt whrrr n father lia«l vfrlwlly 
 ui^rrcU In take hi» toil into |Mrti)ri>lii|), iJiu Iiumiicaa bciii^ 
 miTHHl on at thr ftttl»cr'» huune, the Court crcn ftMtiniing 
 it to lie a imrtncmhip, rrfutK^I to m.!nim llir fnthiT frt>in 
 IHrrriitin}; ihr |iluiiitifV from rrtumm^ to the huiiM^. An 
 ifiiinr wuA c|jr«»<Mr<l to try whrthrr then* %nui in fact any 
 imrtiurmhip, and ihr jury Imvinij foiinil a verdict that (hrrn 
 wait n i>nrtncn*hi|», the defen«lant gave notjce that tlw |iart- 
 ncrj»hi|» wn?* du«Ko|ve<l on thr «lny of the notic*. The Court 
 aaifl, that such a partnonthip might bo drtrrniinwl nhrn 
 either party thought pro|>er: no particular Imgih of wiliw! 
 waM re»|uisite, niul all thai eouhl l>e d«»ne would l>e to rr- 
 Mlmin U)lli parties from rrcei^-ing the eHect* of the {lartncr- 
 «hip detenuiurd at the dale of the notice, and to np|>oint a 
 n»ccivfr (i). 
 
 ;'). Where partner^ n iur t" "litnin a haw f.»r 
 
 partnership pur|><)sef<, ni f litem agreed in hi« <»\vii 
 
 name alone with the Iwwor for the leaw, concealing that 
 fact from his pnrlncr ; the tinn havin von 
 
 the prtMnises, the executors of the dr. , ;ll l>e 
 
 restrained from parting with the lease when obtained, ex- 
 cept for the l>oncfit of the co-partnership. Hut the lessor 
 will nt)t ho rcstmine<l from granting the lease to such execu- 
 tors onlv, unless there is n proof that he knew of the agree- 
 ment between the partners (A). So where two |>artncr!« 
 take a lease, and one dies, the other will \ye restrained from 
 proceeding in ejectment, claiming by survivorship, until it 
 a]>pears whether there was an aj^rccment to make it part- 
 nership property ; or whether il was purchased with the 
 money of l)oth ; in cither of which cases the lease would 
 not sumve(/). But surviving })artncrs of a fimi will not l)e 
 
 (0 /ViftvJc V. I'Mcofk. 16 Ve». 49. (<) KiUMt w. /Inrnn, 3 Swaort. 4«'>. 
 
 (Il) Atdtr t. F»ttnurf, 3 SwansU a. (•). 
 489.
 
 CHAP. VII.] OF A SPECIAL NATURE. 283 
 
 restrained from using the name of the deceased partner in 
 the trade, on the ground of its subjecting the estate of such 
 deceased jDartner to the consequence of such trade ; nor 
 does the fact of such use being a fraud on the public, entitle 
 the representative of the deceased partner to come for an 
 injunction (w). 
 
 6. As partnerships are generally constituted by written 
 instruments and with many varieties of special agreements, 
 the question whether the Court is to interfere or not de- 
 pends more frequently on the special nature of the con- 
 tract, than on considerations arising out of the mere relation 
 of partnership. Thus although in general partners have 
 all an equal right to interfere in the management of the 
 business, yet where by special agreement it is otherwise, 
 as for instance, in a case where several persons constitute 
 a company for general coach business, and the company 
 find the coaches, and each partner is to supply a given 
 part of the road with horses, one of the partners will be 
 restrained at the suit of another from interfering in any 
 manner with the coach on his part of the road (n). 
 
 But where by the contract the majority of the partners 
 in a concern are to bind the minority as to the management 
 of the partnership affairs, a dissenting partner will not be 
 entitled to an injunction to restrain the majority from per- 
 mitting another concern to use the partnership implements 
 of trade, even although the majority should themselves 
 have become the purchasers of such other concern, if the 
 dissenting partner was himself a consenting party to such 
 license before the acquisition by his partners of the new 
 concern. This was determined in a case where the plain- 
 tiff' and defendants were owners of a morning paper, and 
 the defendants were also the purchasers of an evening 
 paper; and the Court refused to restrain the majority of the 
 
 (to) Webster v. Webster, 3 Swanst. (n) Anderson v. Wallace, 2 Mol. 
 
 490, note ; see also Collyer on Part- 540. 
 nership, 189 et seq.
 
 284 hTAMN«i WMnSc.rtL Alls fl'AHTII. 
 
 ouiu-ni i>r till- iiioriiin^ imiicr frudi |«(rMiiiniii^ tiu- i-vi-iiii)^ 
 |Mi|M?r tu UMT tlif ty|M-n mill ulhtr cHccU uf tlie inuriiiii|; 
 paper, till* ptuiiilttr liiniM'ir having n{{rvf<l, fur u loii^ time 
 licfurc thr purrhiiM- of (lit- rvriiiii^; |Mi|icr, ill pcnuilUiit; it Iti 
 UM? tlir ty|Mrit uf the cvrniii;; |»u|M*r. All injuiiciiuii wtun 
 liowevrr ({ruiili**! to n-Mtruiii llir (IrfriKltiiitH from pul>li»liin({; 
 ill llir fwiiini; pn|M'r any infoniiutiuii oliiuiiicil u( llie ex- 
 pfMiMr «>f llu* inoniiii^; pa|M'r, until it hIiouM liuvr Iw«mi Or-I 
 puhliNliid III tlir nioniiii^ |m|M*r(oj. 
 
 A proprietor of HliiirrM in u tliiiitic, uho lius, without tiic 
 con*M-nt of oiii* of lim |)nrlncr>i, ileiniM-it Imh hliurc, may, it 
 iic<.'mtt, i>p|'^^' ^"^ '*" injunctiuii tu n-Hlruin Iiih littMo from 
 (luiiig unv act prejudiciul t4> such (liKKcntin({ |iurtner (/i). 
 
 («> (^•/•iMiNflon <f. ThiraiUt, I Sim. ( p) Turn. S. Hum, f^2A. 
 
 S 8lu. 134.
 
 CHAP. VIII.] OF A SPECIAL NATURE. 
 
 285 
 
 CHAPTER Vlll. 
 
 Injunctions relating to Canal, Railway, and other Public 
 Companies. 
 
 10 
 
 General Principles applicable to 
 Ads of Parliameut for execut- 
 ing public Works. I 
 
 Injunction may be granted though 
 no irreparable Spoil or Waste. 
 
 Limitation of the Doctrine of 
 Agar's case. 
 
 Company not protected when act- 
 ing against legal Rights. 
 
 y,'or permitted to assess Lands not 
 included in their Notice, 
 
 Court sometimes refuses Injuuc- 
 lion, putting a Company to give 
 an Undertaking. 
 
 Injunction sustained pending In- 
 (]uiry at Law, whether the Effect 
 if Works irould be materially to 
 interfere tcith a Defendant's 
 Wharfage. 
 
 Diligence in applying to the Court 
 more requisite against a Com- 
 pany than in ordinary Cases. 
 General Result of the Cases as to 
 what constitutes sufficient La- 
 ches. 
 Jurisdiction of flquiiy not taken 
 
 aivay because an Act of Parlia- 
 ment gives special Remedy. 
 
 11. How the Court is governed as to 
 
 Exercise of its Jurisdiction. 
 
 12. Court acts only in Aid of real or 
 
 pres^imed legal Rights. 
 
 13. Course pursued where legal Title 
 
 doubtj'ul. 
 
 14. Court pays Attention to the Ques- 
 
 tion which Party will be most in- 
 jured by its Interference. 
 
 15. Of the Effect of an Agreement to 
 
 loithdraw Opposition in Parlia- 
 ment, tchere the Party retiring 
 has been i7iduced to do so on the 
 Representation and Promises of 
 the other Party. 
 
 16. The same Question ivhere the Par- 
 
 ties have been at Arms-length. 
 
 17. Of such Agreements ivith Land- 
 
 owners, being also Peers oj Par- 
 liament. 
 
 18. Injunction to restrain Parliamen- 
 
 tary Proceedings by Companies 
 tending to alter their Constitu- 
 tion and Object. 
 
 1. An Act of Parliament, vesting in a company power for 
 carrying into effect some public work, is a contract of a 
 peculiar character between the public and the individuals
 
 286 [«•*" M 
 
 , ' I'N iiu .'\- I A L'»»ul r-r " 
 
 t puhlic i-uUI|MIUlr* (uU*> |'< 
 
 mill. ml b«Ml» of r<|ui(ublc jun^ 
 
 I'.ul 
 , ■ ' 'tl 
 
 wliu'b arr |Mx-uliar lu |mblic coin|jOiii«» MTiiitg U> cai 
 
 ^lic wurk«, bihI which Uifiiefure re(|Uiro n ()i»(iii< t 
 
 III a CUM bcfurr Lonl Eldoo (d), hi* I^mUhip Mu>i. 
 •' Where |icr»oii» at»»umr l«» witi»fy ll»' ' ' « 
 
 i-rrtaiii •uiii M •ulhciciit tur the com|>l< , • il 
 
 umlvrtaking, m a canal, and the event in that that cum \% 
 ii«»l iiiarly imflicirut, if the uuiier of h 
 
 which the Ict^tnlttturv hiut given tu the , '>< 
 
 tu enrry the canal, can thuu tliat the pcfvonA to auti 
 on* unnhic t •'» 
 
 applicalKMi lu; ;. ^. «' 
 
 |)eniiil llic further priM»eriitioM of the ui 
 
 III lilnirtMore v. ( > 
 
 tlie jaiiiu- Ie;rv ' ■• ' ^ • 
 
 iucnt» uiul |.a. I lliai the i 
 
 or euiml cuii l)C inntle at uii e\|>cii»c of /., 
 
 cluWH with tluir applicnlioii, ami fonun thi.... .... ■ .. ...m- 
 
 |mny, with ))ouer tu ruiHc iiiuncy lu that amount, tliat 
 aulhunty i» j^ivcii iheni by |mrluimenl in the full confi- 
 ileni'c that the sum which they have asked, and obtained 
 |Kj\vfrs lu raisr, will enable them to execute the work. 
 There iii an agreement on the part of tho»e who t»atJHfy 
 lit, that tlirv can and will do such a Wi r' • . h 
 
 I money, and u|K»n the lailh of that uu'. "g 
 
 they get the oulhority to begin the work. Hut if they 
 deceive parliament, what right have they to complain, if 
 Court.s of justice will not allow them to tro on with the 
 deception ?" 
 
 (*) Af»T V. Iltgemt'i CtfMl Cpm* I Svmxu. '2.'/'. 
 f^ny, cited by tbc Lonl ChaoccH ^ 1 .M). Ci k. 164.
 
 CHAP. VIII.] OF A SPECIAL NATURE. 287 
 
 And in a late case {d), Mr. Baron Alderson thus stated 
 the general doctrine : " These Acts of Parliament have 
 been called parliamentary bargains made with each of the 
 landowners. Perhaps more correctly they ought to be 
 treated as conditional powers given by parliament to take 
 the land of the different proprietors through whose estates 
 the works are to proceed. Each landholder therefore has 
 a right to have the powers strictly and literally carried 
 into effect as regards his own land, and has a right also to 
 require that no variation shall be made to his prejudice 
 in the carrying into effect the bargain between the under- 
 takers and any one else. This, I conceive, to be the real 
 view taken of the law by Lord Eldon in the case of 
 Blakemore v. The Glamorganshire Canal Compaiiy. In 
 Mr. Agars case (e), (his Lordship continued) one point, it 
 is said, was, that the Regent's Canal Company could not, 
 for the sum which they had power to raise, complete their 
 works ; and if that were clearly made out, Lord Eldon 
 says in the case before referred to, that a Court of equity 
 would probably grant an injunction, and I fully accede to 
 that proposition, in case the fact were clearly made out, 
 and arose either out of circumstances occurring after the 
 passing of the Act, or from a failure to raise the sum con- 
 templated by the Act. For to take any man's land, where 
 tlie whole work can never be performed, is clearly injurious 
 to him, and a substantial breach of the condition on which 
 the legislature granted the right to do it. So again if the 
 termini were changed, and instead of proceeding to some 
 great town or city, the canal or railway were to terminate 
 in some obscure village, the same result would follow. 
 But I cannot accede to the proposition, that where the 
 contract, as far as regards the land of the complaining 
 landowner, is exactly performed, any variation made at a 
 distant point, and with the consent of the landowner 
 there, and producing no real injury to the complaining 
 
 (d) Lee V. MUner, 2 Yo. & Coll. 611. (e) Cited ante, 286.
 
 28K «TA\IMi WttONUFUL ACTit [PAItl U. 
 
 luiiUowiier, ougiil U> be the |;ruuud for aii injuiiclioa iit u 
 Court oftHiuity, to be gmiitcd at Im a|)|ilic«lion. Finally, 
 in ti ran*- wliuh raiiic btfort? l#urd CoHrnhuui om W|i|»c-.i" ' 
 liiH I>>r«Uhi|i »tut(ii the |>rinci|ilc on hIiicIi the (^'U^t 
 form with budiim uf public funclJoiumM to be, that to \on\* 
 uj* thf y Htnt-tly cuniinc tlifnjwlve»t Hitlnn the • "f 
 
 iIujw ilutii-A ulncliuri: cuntidci to tlicui by lu\s, :.. ' il 
 Will not nitorfcrc. The Court will not interfere to ice 
 whrthrr any ttltcratmn or n^^ulnlum mIiicIi they inuy nuikc 
 Hi |{cmkI or bud. Hut it llicy uru dc|tartln^ Iruin llml 
 |x>\vrr wliicii the liiw huii veittctl in them, und if they are 
 uMHuining to thciiiHclvcH a power over properly which the 
 law diM'rt m)l ^ive them, the (xiurt no lonj;er eon-"'- '- 
 ihtui an acting under the uuthonly of their comnn 
 but treutti them, whether they be a rur|>onitiuii or iiidi* 
 viduals, merely ns imtsohh deahn^ with pro|Mrty without 
 le^al aulhorilv , y i. 
 
 '2. It i<i not necoKsary alwoyH, in order to obtain an in- 
 junction a^niniit u com|>aiiy, to make out a caAe of irre- 
 punible (>[Hii\ or waste, as a conKe<|uence of itA actM. From 
 tin- I.i 'if Lord Cotlenham in a very late cji- 
 
 it is I 1. ctcti that if the company excec<l the j- 
 
 which the legislniure Uim ^\vvn to it, the Court is not at 
 hberty to withhold the iuiis<liction assumed in .ft/nr v. 
 /if'i/cnt's CfiiHil ( 'omj>niii/, but is bound to interfere. 
 
 3. Tile doctrine in At/ar's ca«-e is not howf\er to Ik* un- 
 derstood to go the length, that when an act «if parliament 
 has been passed, giving certain powers, and authorizing a 
 body of persons to carry on certain works, tlien those 
 against whose rights such works arc to Ix? carried into 
 ctFcct. are entitled at all events to come into etjuity and 
 say they will inuliTtakr to prove that that body cannot 
 
 (J ) Fr«rin V. />*lfU, 4 My. & Cr. {h) Hiver Dun Smtigati>yn ^'^'m^ 
 
 249. Pfty »• Sortk Midland llatltmu Cttm- 
 
 U) '^- fMty. I lUilway Cm. 13&.
 
 CHAP. VIII,] OF A SPECIAL NATURE, 289 
 
 with the money which they have in hand, carry those 
 works into effect, and that therefore, and immediately in 
 that state of circumstances, the Court is to interfere. But 
 only that where acts of parliament impose certain severe 
 burthens on individuals, by interfering with their private 
 rights and private property, for the purpose of obtaining 
 some great public good, then if the Court sees that the 
 undertaking cannot be completed, and therefore that the 
 public cannot derive that benefit which was to be an 
 equivalent for the sacrifice made by the individual, the 
 Court will protect the individual from being compelled to 
 make that sacrifice under the circumstances, and until it 
 appears that the public will derive the proposed benefit 
 from it (i). Thus, where commissioners are acting under 
 acts of parliament for the purpose of widening and im- 
 proving the streets of a city, and for other purposes, and 
 with powers to raise money by several means, they will 
 not be restrained from going to a jury to assess the value 
 of premises which they have given notice of their intention 
 to purchase, merely because there is an allegation that 
 they have not the means of paying for the premises, and 
 because they do not produce satisfactory evidence that they 
 will have such means (k). 
 
 And where commissioners authorized by act of parlia- 
 ment to cut a canal were unable to complete it with the 
 sums they were authorized to raise, and were applying to 
 parliament for further powers, an injunction to restrain 
 them from going on ad interim with their works was 
 refused, on the ground that it did not appear that they 
 were cutting through the plaintiff's lands ; that no irre- 
 parable mischief to the plaintiff was shown as a necessary 
 consequence of the very act they were about to perform ; 
 and that as an application to parliament was pending, the 
 proper course seemed to be to petition parliament (Z). 
 
 (i) 3 My. & Cr. 444, 445. (0 Mayor Sfc, of Kings Lynn v. 
 
 (/c) Salinnn v. Randall, 3 My. & Temberton, 1 Swans. 244, 
 Cr. 439.
 
 290 «.iKaw■o^ >" [pAHT II. 
 
 In J.<rt \. MuHrr 'm) the defriiii.uiti were boand by their 
 ttct of |NtrhaiiuMit to luukc • cut not ilcviutinj^ iiiuri- ihait 
 a hundred yard* (rum a crrtain parlMiiiMttary hoc, but 
 they hud fiftreii yt*ani to cuiuplrtr thtir wurk*. In one 
 fMirt u( thr hiir, nut at ull ttdju<nin({ the |*lttuitili'h lund, 
 but through land of their own, and without any prrjudico 
 whutovrr to ili«< iilaintill, thry had ntiule a cut deviating; 
 in ftttiite |MrtA utuip tliuii a hundrt-d yard* fruiii the |Mir> 
 hanientary hnet and it waa avroni that such dcviaiiun 
 Mu» onlv tcin|M>niry, and that they had Hot fii> " ' >- 
 doninl the tnleiition of rollouin^ ihi* |mrliunHi 
 An injunction obtained «x pttrU waa on thu ulutc ol t ' 
 chnAulviii, Ihtty, on thi* uruund ntated by Mr. I' 
 di>nM>n in thiit part ot hi«* jtui^iiunt which I huvt i, 
 
 and 2ndly, on the ground that the (3ourt could not bo 
 Hati-lied from the cvi ! ' ' , ,> > > - ,,|miu 
 
 Would not ultnnuttly t 
 
 4. Hut a < will not U- |ir< • 
 
 Htruction uf i( by u |>erHon wh 
 
 ejectment Q}^inHl it, where it hoc erected iiuch worka 
 nt;ninHt tin? ronsmt of the party havuit; the h-i^al Ull' 
 On sinnlar prinripU-s a public cotn{Miny, acting >. 
 an act of parliament, will not l>e |x>rmittcd to take, under 
 its powrrs of rotnpulsorv purchase, land for a purjHue 
 iliffiTent from tlnit for winch it is authorized to lakt- it. 
 Thus ill a caHc where a railway company wanted to go 
 before a jury to assess land on one side of a cutlin^ for 
 the purpose of making a slo|)e on each side of the cultinjj, 
 and for making an embankment on a ncighbounng part 
 of the line, the Court intimated that it could not Imj jmt- 
 initted to take the land for any other purpose than that 
 which was w ithin the compulsory clause of the acL And 
 as to that, the company was n'-sinuned from goin^ In-fore 
 a jury lor more ol the land than was ;>t.iti d to be necessary 
 
 (m) Cit««l ant*, p. 287. tr.7v ( ;i urn, Rolb. 4 Jur. 
 
 (n) Durham mmd SuHiltrltHH Rm>:
 
 CHAP. VIII.] OF A SPECIAL NATURE. 291 
 
 by the report of an indifferent engineer agreed upon by 
 both parties (o). But it seems that though at the time 
 of giving notice to purchase, a company may not be in 
 a condition to have a right under its act to take land, yet, 
 if subsequent events give it a title, the Court will not 
 prevent it from exercising that right (p). 
 
 5. A company having given notice under their parHa- 
 mentary powers to a party that they require certain land, 
 will not be permitted to include in their precept to the 
 sheriff to summon an assessing jury, lands different from 
 those included in the notice ; for if they were not bound 
 by the notice, they might subdivide the contract, on going 
 before the jury, and take the opinion of the jury on any 
 part of the land, without any intimation to the owner as 
 to what part that is to be (q). 
 
 But if a railway company purchase in pursuance of their 
 powers a subsisting lease in lands, and give notice to the 
 reversioner for summoning a jury to assess the value of 
 the fee simple, they will not be restrained from proceeding 
 to assess the whole of the lands, on an allegation that they 
 are only entitled to take a part; because if they are in 
 reality only entitled to take a part, then the intended pro- 
 ceedings would be a mere nullity so far as regards the part 
 they are not entitled to take (r). 
 
 o 
 
 6. In some cases the Court will, on account of the 
 heavy injury arising to a railway company from having its 
 works stopped, refrain from issuing an injunction, provided 
 it undertakes to do that which the Court decides it 
 is bound to do. Thus, where a railway company was 
 bound by its act, if it crossed a turnpike road, to raise or 
 sink such road, so that either the road should pass over 
 
 (o) Wehbx. Manchester and Leeds Company, 4 My. & Cr. 122; S. C. 
 
 Railway Company, 4 My. & Cr. 116; 1 Railway Cases, 375. 
 
 S. C. 1 Railway Cases, 576. (r) Mouchetv. Great Western Rail- 
 
 (p) 4 My. & Cr. per L. C. p. 118. way Company, 1 Railway Cases, 567. 
 
 (g) Stone v. Commercial Railway 
 
 u 2
 
 '2ir2 islOIM. WUUNGI'l [PAHT II. 
 
 uy^ur tlif ruiUvay ptuM ovci ihc ruutl by ineanB of 
 
 a : ^. uf klatrtl hci^^lu iiitd widlli, uiiii the cuiii|miiy laid 
 
 duwn rniU acru*» a tunipiko rued, and u*ed tliciu for car- 
 ryin^ uii tlir woiku, by coiiveyini; uiatmnU tbcrt'on in 
 waguiM drawn by hone; iho (x>urt held, that I I'.r.. 
 maknig the railway, th« C(>m|Miny wm bound to ) 
 bridge, but havuig rrgard to the long>conlii >iy« 
 
 which would be infhclcti on the com|iany, by r< it 
 
 till the brid(;r wan built, the (x>ui1, inntcad of : m 
 
 injunction aimplicitrr, put the comfiany on tct Id 
 
 a pru|M?r bnd^r, ollicrwirto an injunction to be *). 
 
 So in a case where a cotn|iany t>ntered into an rit 
 
 with the owners of a piece of land, that th< iia>e a 
 
 ^ivcn part of it for a certain nuin, of whu.!. ... ... undcr- 
 
 Htanding of lx*th |MirtieN part wqb for llu* value of the land, 
 ami the rrinaiiuler for scvfrance and 
 
 and the ounipaiiy were to have any a-.w... i..- , 
 
 nnghl want at the tuiinc mle per acre ; the iUiuri hold thai 
 tl)e company had no ri',;ht to any further pt on 
 
 tcmis of paying according to the price p... . ; . il»c firat 
 piece |HT acre for iht- value of the land, and for tlic colla- 
 trnil damage, acconling to the extent of it; but no injunc- 
 tion was <grantetl, the company undertaking to go before 
 n jury to have the collateral damage asw^bed ; and that if 
 tl^oy (lid not pro|x?rIy act on the order, the injunction 
 should l)c considered as granted on the day on which that 
 order was made (0- 
 
 7. But in a case where a railway act enacted, that wherc- 
 cvcr it should be found necessary to cut through, take, or 
 so much injure any part of any quay, wharf, or other 
 communication, as to render the same impassable or incon- 
 venient for transporting, (kc. ativ fjoofh, the compr^ny '•houM 
 
 {>) Xoriham Bridgt and ttivd C . ' ., 
 
 V. l^iidon and Sou: I Kail. Cu. p. 171. 
 
 V ComfMH^, 1 Railwa) L . • ''* Jcn*$ v.Crnat If'Mttm Raittmy 
 
 nd 9 Law Journal, 377; .i my, 1 Railway Cw. 684. 
 
 li
 
 CHAP. VIII.] OF A SPECIAL NATURE. 293 
 
 previously cause another equally convenient quay or other 
 communication to be constructed; an injunction restraining 
 the company from prosecuting any works which rendered 
 the plaintiff's wharf inconvenient, was sustained pending 
 an inquiry at law, whether the company having carried 
 the railroad in front of his wharf so as to cut off its gene- 
 ral access to the water, and having made a jetty leading 
 from the water to the wharf, had complied with the terms 
 of the act. And the injunction was so sustained, notwith- 
 standing it appeared that the further prosecution of the 
 works would do no greater amount of injury to the plain- 
 tiff than had already been done, and that the only effect of 
 sustaining the injunction would be to stay the completion 
 of the railway (?<). 
 
 8. It is here proper to observe, that in the case of a 
 party complaining of injury from the execution of works, 
 such as those of a railway company, it is even more incum- 
 bent on him than in ordinary cases to apply without delay 
 for relief; and that, as the injury to the defendants in being 
 stayed (if it shall ultimately turn out that they are acting 
 lawfully) is great in proportion to the magnitude of their 
 operations, the Court will in general hold even slight ac- 
 quiescence on the part of the complainant a bar to his ob- 
 taining an injunction (v). 
 
 Where, however, the proprietors of a turnpike road stand 
 by while a railway company lays down temporary rails 
 across their road, and employs wagons drawn by horses 
 only on such temporary railroad for the purpose of carry- 
 ing on the works, that is not such laches as will deprive 
 the turnpike road company of any right they have to an 
 injunction to restrain the railroad company from using the 
 railroad for public traffic with locomotive engines (x). 
 
 (u) Bell V. Hull and SelbiJ Rail- Semple v. London and Birmingham 
 
 way Compamj, 1 Railw. Cas. 616. Bailway Cotnpany, 1 Rail. Cas. 120. 
 
 (v) Agar V. Regent's Canal Com- (x') Northam Bridge and Road Cum- 
 
 pa?ji/, 1 Swaost. 245 ; and see Gj-een- pany v. London and Southan}pton 
 
 halgh V. Manchester and Birmingham Railway Company, 1 Rail. Cas. 653 ; 
 
 Railw. Company, I Railway Cas. 68 ; 9 Law Jour. N. S. 277.
 
 294 ^j Ati.nu « Ku.-iufOL ACT- [PABTll. 
 
 U. W itli rn^urtl tu what coiiiililutcb mat amount of 
 lachrii winch Mill (h|inve a |«uity uf hm right tu ruhct hy 
 iiijuiictiuii, It It diilicull to •tale any poailivo rule To a 
 vrry • i<h ca»r will be j»oveme<l ' ' 
 
 uwii ] » ; the uuthuntie* uii I In- 
 
 ject apixntr, Itowever, to aupport the fullowing gcncml pn>* 
 
 pUMltUtllH — 
 
 I. Thut if the iNUly !• cognisant of hb nght, and drvn* 
 not take thoM ttrps to aMiert it which are o|jen to him, ) 
 hf liiiN nlliiMril the odvcmury tu incur tnuti 
 (It tu enter iiitu cn^a^eiiifiitit dtlhcull tu l>c • 
 will loM hit right to the interposition of equity (y). But if 
 ihr lirluy i* - ' ' ' ' ' it \vat« ii ' 
 
 III tin- imlurt- ■ \Mth a \i' 
 
 nil uiiiicuble urraii^rnicnt (s); or if the delay is while t^o 
 acts lioiic arc only |irrliiiiiimrv to (' 
 the pinintitl i-laiiiiH rriirf, and not M). 
 the phuiitttr will not by such delay lose the benefit of hia 
 
 P<|uitv. And It hri'Ill'" doulitflll, \' re 
 
 ignonuit of the ri|nity »'r ri^lil win. _ _'il 
 
 have nswrted, if he was aware of it, how fiM* he oufi^it or 
 
 ou'^ht iikI to Ik' prejiMluT<l in til* 'i 
 
 bclon{;eil to Inm, by the situaio . , y 
 
 may have been placed owing to the non-a«scrlion of it (b). 
 It nuist 1)0 observed tliul laches may deprive the defend- 
 ants of their rijiht to dissolve, as well as the plaintifl'of Ins 
 richt to obtain an injunction. Thus it has been held, that 
 althou'^h tlio circumstance of the plaintid having concealed 
 material facts on an application fur an ex parte injuncUun. 
 would be good ground for dissolving it, yet if tlie defend- 
 ants liavc let several months elapse Ix-fure coming to dis- 
 solve, they will not, after <\ich (i<l;(\ , I- li< -fl i" disvoUc 
 on that ground (c). 
 
 ( v) Grttnkaigh v. ManctusUr and Compttny T. l^ondom mnd S«MiA«mpl«H 
 
 hirmimghitm tia%l»*}t Comp-r ''aitic^y Company, I Rtilw. CtMB. 
 
 Railw. ('as. 68. '>3. 
 
 (i) .^'e* Innoctnt ». \crth Mm. (6) I Railtr. Caft. 1 10. 
 
 IimilmyV«mp<,;K. 1 lUiU. Ca*. 24-2. (c) B*li v. Umil and SMy Ratl- 
 
 (•) \orthaat Bridg' <iy Company, I Railw. Cu. 616.
 
 CHAP. VIII.] OF A SPECIAL NATURE. 295 
 
 10. The jurisdiction of equity to restrain a railway com- 
 pany from so dealing in the course of its operations as to 
 injure the property of another, is not taken away because 
 it happens that the act incorporating the company, points 
 out specifically a mode in which a party complaining of its 
 acts may obtain compensation (d). 
 
 11. In exercising such jurisdiction, the Court will, in 
 the absence of positive directions by the act of parliament, 
 construe the general powers given by it, so as to preserve 
 to the party aftected by the operations of a railway com- 
 pany, advantages equivalent to those which he would have 
 had if the act had not passed. Therefore where a com- 
 pany had the usual powers to take and interfere with 
 lands for the purpose of the railway, and under those 
 powers was proceeding to carry the railway over a mill- 
 race by means of a bridge, which appeared by the evidence 
 not to be of such figure and dimensions as would secure to 
 the miller the same enjoyment of the working power of his 
 mill as he would have had if the railway had not been con- 
 structed; Lord Lyndhurst, C, granted an injunction to re- 
 strain the company from making over the mill-race any 
 arch of less dimensions than the arch recommended by an 
 engineer chosen by both parties to report thereon (e). But if 
 the act is specific in its directions, then the Court will confine 
 itself to enforcing compliance with such directions. Thus, 
 where a company was bound, on erecting any bridge in 
 order to carry the railway over or across any turnpike 
 road, to make the span of such arch of such width 
 as to leave a clear and open space under it of not less than 
 fifteen feet, it was held, that, provided a clear space of not 
 less than fifteen feet were left under the arch of the bridge, 
 the company might erect piers on the road, and make the 
 bridge in any manner they might think proper. And an 
 injunction was refused, to restrain them from making a 
 
 (d ) Coates v. Clarence Raiiwaij (e) Ihid. 
 
 Company, 1 Russ. &. Myl. 181.
 
 -Ik, [I'AHT U. 
 
 hriilge \*»tli uu ut> m ii.i\iii^; n>< i»i\-ii'ui m-* vi»ar way ovot 
 u ruttJ III ihirty-ri^hl Ittl witlc(/). 
 
 Whrrr, liowewf, an art iirovidc* oi»ly for an arranj^c- 
 rocnl, de(iriulii»}» oil ihe diM-mion and agrecmcul of llir 
 partim. ilif < ourl %»dl iioi luicifcrc. Tliiw nlicrc a wal«r 
 coni|>any «r«a ftennillcd by iu icl to aupply water at nitc« 
 to lie nijirrtl on Ultt«n it and the nilinhKontii, anti ob- 
 tainrtl oftcrHurd* u luflhcr act by i*hich it wo* only to take 
 rttuomtthh raica, the Court rvfuacd, at the cx|jinition of the 
 nj,'rr«nMnt wilh the inhabitants under the fir ■ ' •> rc- 
 itiniin th«- 1 oni|i«»iiy from cutting' «»fl" thr plamUli . , on 
 
 hi* rrfuaal to |>ay new and higher rat**. The jjround wa* 
 that thirr wj»h no niutuahty. iiuminuch oh the Court could 
 not ct>n»|Ml liny inlmbilanl to take watrr ; and that unlcaa 
 it wa» decided whut wan a reaAoiiublc rate, llierc waa no 
 title ill the inhabitantM to come to the Court (y). 
 
 I J. It ninv be collected from the I (<aA4^, and it 
 
 ha** Ihth \ '**^' 
 
 judiculing ' , , "'*-' 
 
 Court act-s (ns in truth it doen in almost all caaca of injunc- 
 tion}* to restrain injurii's to j»r< 
 tin nshuined lc<;ul right. It will 
 
 nn equity interfere against on admitted legid act, unleM 
 tlure be a nuiiiilVst certainly that at the 1 •• ' - 
 
 till' will be entitled to relief. Therefore,! > 
 
 shareholder in a railway company, being also a director, re- 
 leased by agreement with the rompany rcrtiin sh.ires, but 
 not according to the fonns prescribed by the act for for- 
 feiture of shares, and it was clear that the intention of the 
 parties was tiiat the shareholder should Ix' thenceforth re- 
 leased from his liability to the calls ; several calls having 
 l>ccn made aflenvards w ithout any claim on him, and after 
 he had ceased to be a director, the Lord Chancellor held 
 
 if) Ailornt^- Cental v. Soul*- (*) »'eaU v. Hnt M,dM4»ti ii'»ttr 
 
 78. S.(. I 1
 
 CHAP. VIII.] OF A SPECIAL NATURE. ^ 297 
 
 his title was not so clear as to justify restraining an ac- 
 tion for the calls brought against him by the company, ex- 
 cept on terms of his giving judgment in the action, and 
 paying the money into Court, to abide tlie decree at the 
 hearing (/t). 
 
 13. The general course, where the legal right is doubtful, 
 is to put the parties in a situation to try such right as quickly 
 as possible, and to protect the property in the meantime. 
 And the Court will not consider whether the result may be 
 inconvenient to the one or the other party ; for it has no 
 right to deprive one party of what he is entitled to because 
 it is inconvenient to another party (i). 
 
 14. But where the title to relief is doubtful, the Court 
 seems to be much influenced by a reference to the ques- 
 tion whether it will do more injury to the plaintiff' by 
 withholding the injunction, if it shall turn out that he 
 is right ; or to the defendant by granting it, if the right 
 shall ultimately appear to be on his side. Thus, al- 
 though where by an act of parliament a trust is fastened, 
 to come into operation at a future day, upon property pre- 
 viously held by parties as their own, they cannot in the in- 
 terval deal with it as their own{k) ; and although the jurisr 
 diction of equity to restrain them by injunction from so 
 deahng with it seems clear (/) ; yet, if it is doubtful whether 
 the acts contemplated by the persons in jjossession are or 
 not within the act of parliament, and the effect of the act is 
 that if they are not done within a given time, they cannot 
 be done at all ; and if in addition to these circumstances 
 there is no substantial danger to the property, the Court 
 will not enjoin ; because to restrain the defendants would 
 
 (h) Playfair v. Birmingham, Bris- tionsin Kemp v. London and Brighton 
 
 tol, and Thames Junction Railway Railway, 1 Railw. Cas. 507. 
 
 Company, 9 Law Journ. 253 j S. C. 1 (k) Attorney General v. Corporation 
 
 "Railw. Cas. 640, of Liverpool, 1 Myl. & Cr. 171. 
 
 (i) See I.ord Cotteuhain's obseiva- (/) Ibid. 202.
 
 298 lAVlNU WRONOFtl. ACT* [PART II. 
 
 hnve the rll.vt ul |)r<H'lu(liii({ th«*m from ever doin': tliut 
 which it inuv turn unt it Huuhl \»c IumIuI lur thciu tu 
 do(n) 
 
 16. A contract be(wr«o partial wbuM inlerMU will be in- 
 jured by tlie conttructiui) uf » public work, mad tbote who 
 
 arr ii|t|>lviii^ tu |»orhiiniriit fur an act to carry it n ' 
 fur the wiliiiimw iii^; ul op|*u*itiun in |Nirliunirnt, in • 
 Rtion of m pecuniary roiuudcrsliun, ia not illi*t^l < a ). Neither 
 in It wh«Tf thr c«>ntnict i» thiit in conMcl« : 
 tile imrtirji nllowin^ the act tu poM im 
 certain prutectuig clauaea, a formal dc<*d nhall bo executed 
 ndvT th«' iniHsin;^ «>f thi? uct, crn'' 
 cuvi-iiuntH ; ut Icu^t « here ihi? [ , 
 deed ore not inconi«ii«tent with the clause* of the a* t 
 A.H whrrc n milwny ntt provuii'd that n 
 uny pubhc roud over the railway, hhuiild I / ; 
 
 feet in \cidlh, and t)ic cuvcnant stipulated fur. waa that a 
 l)riil:;i- iivi-r the railway on t! 
 
 11 I liar wiilth cfpial tu that • : _ ■ ^'^ •- 
 
 fifty fift, the Court Raid, alUiuugh the act provided that 
 hnilL'fs sIhhiUI \h' not less than fillifn fr«t in wuith, it tiid 
 not pruvulc that they bhould not be iimdc wider; and the 
 company might have a^n^eed under the act that the bridge 
 in f|urstion, or anv other, should \n- fifty feci wide. 
 
 Ill the case referred to, the principal |>oint was, whetlier 
 such a contract, entered into by one of the projectors of a 
 railway company Ijcfure its incorporation, and who ;tt;' : 
 gucli incorporation became one of the directors, wa« bimliiv 
 in equity uj)on the company ; and Lord Cotlenham held 
 that whether the contract was binding at law or not, and 
 whether tlie company and the projectors could be idenU- 
 
 (m) .1i(orn«y GfN/ral v. Corpora- MnnchtHtr «nd Hirmimgkmm Rtilitmy, 
 
 tion of Up^rpcot. I MjJ. & Cr. 171 ; 1 Railw. C«». 117. 
 
 •cc al»o I>onl CoUenham't obierra- (") I'autkalt Bridgt C^mpmrnff r. 
 
 tion* 10 f<*mpl» v. Ijondon and liir- EarlSptncer, 2 Mad. 356; Jac. 64. 
 
 miifham llaiticaif Company/, 1 Uailw. (o) Lduardts.Tlit Grand Jftttti-n 
 
 C«». 134, 135, and in Grttnhalgh r. Uailuoy Company, I .Myl. At Cf.'V/i.
 
 CHAP. VIII.] OF A SPECIAL NATURi:. 299 
 
 fied or not, it was clear that the company had succeeded 
 to and were in possession of all the projectors had before; 
 that they were entitled to all their rights, and subject to all 
 their liabilities ; and that in equity they could not be al- 
 lowed to exercise the rights given to them by the act, 
 without regard to the antecedent agreement that those 
 rights should only be used in a particular manner. His 
 Lordship, on these grounds, sustained an injunction, re- 
 straining the company from executing certain works in a 
 manner inconsistent with the agreement entered into by the 
 persons who had projected the company. 
 
 So where the projectors of a railway company A., by their 
 agent, entered into an agreement with the plaintiff, a land 
 owner, for the withdrawal of his opposition in parliament, 
 and afterwards, a rival company, B., applying* to parlia* 
 ment, it was proposed and agreed to by the promoters of 
 the two lines to refer it to certain members of the com- 
 mittee of the House of Commons, to determine which 
 of the two should be adopted ; and that, whichever was 
 adopted, the shareholders in the other might, if they chose, 
 become shareholders in it ; and that it should be liable to 
 the engagements of the other. The line B. being deter- 
 mined upon, it was held that the company incorporated 
 to carry into effect that line was bound by the agreement 
 of the promoters of the original line A. with the plaintiff; 
 and the company was accordingly restrained from proceed- 
 ing with the works till the plaintiff should have received 
 the stipulated compensation {p). 
 
 Again, where the promoters of a railway company pur- 
 chase the shares of a canal company, including the interest 
 of the canal company in the wharfs, &c. on the banks, sub- 
 ject to the rights of their lessees ; and in order to purchase the 
 neutrality of those lessees, enter into an agreement with the 
 canal company and the lessees, containing a clause that 
 on giving notice within a limited time, the lessees shall be 
 
 (p) Stanley v. Chester and Birkenhead Railway Company, 1 Railw. Cas. 58.
 
 30() hTAVIM. W|(O^Opl L Ai 
 
 V \l. i i I. 
 
 eiititlLil to Kcll to llie ruil\%uy cuiit|tuii\ ilinr uitcrcalh ; tiic 
 inotiiciit u IchMT givctf MUi'li iiulicr, the rt-lutiuii of vi-iulor 
 ui)U purchuMr cotuincnci** between him and the railway 
 V ; a»nl llic Ittttrr • ' mc<I fr«M> < 
 
 1 ^ f,l>t''i by brin};ui;4 , nUr n * 
 
 leaic, cmiwwcring the laiullurtl tu determine the leaiic on 
 certain trruin), until thr pn»|>cr aniuiinl of the purchase 
 muncy ih uHccrtuinc-d niid piiid(/y). 
 
 The deciiiiona in the furei^oin); coiieii iieeni to huvc been, 
 to ti cunsidcnihli' t-xtent, d«'|M-n<li'iit «ii the c'«piiiy crj'aled, 
 by the party cUuitiin^ relief havin^^, uii the futlh uf certain 
 tiling* being undertaken to be dune by the company, retired 
 from conlchting the grunt of itt* privileges ntid jxiwen*. 
 
 1 'i. i ur ill another case (r)of a very (iimilar character, Lord 
 Cotleniiain adverted to the absence of that circumstance an 
 partly the ground of his decision. In the ca»c to which 1 
 refer, the College of Kton op|>o&ed the bill of the Great 
 \\'estern Uuilwav ( 'omjmiiv ; and in con»cc|uence of such 
 oppositiuii, clauses, which were fuuiided on a pro|)oKal made 
 to the college by the chairman of the promoters of the rail- 
 way company, were introduced in the committee of the 
 House of Lords into the company's act. It was obvious 
 that the clauses were framed for the purpose of preventing 
 the acts- of wliich the college complained by their bill, and 
 that it had been the intention of the college to prevent any 
 station, or in substance, the consequences of a station, near 
 the college; but, on the wording of the clause, the Court 
 was of opinion that the company could not be restrained 
 from setting down or taking up jiassengers, or from allow- 
 ing them to pass up or down an old existing road, provided 
 they did not make any road or way, or erect anything ac- 
 tually in the nature of a station ; and refused, in conse- 
 quence, to restrain them from doing that which did not fall 
 within the strict legal acceptation of the restrictions in the 
 
 (9) Ddo T. London and Crojtdon (r) Eton ColUge ». Crfat U'eUtrn 
 
 Rai/iruy Company, 1 Railw. Cas.257. Railuay. I Kaitw. Cat. 200.
 
 CHAP. VIII.] OF A SPECIAL NATURE. 301 
 
 restrictive clauses ; the Lord Chancellor saying, " it is 
 very important to observe, that there is nothing in the na- 
 ture of contract between the parties. If upon the propo- 
 sals the college had retired from the contest, and had ac- 
 quiesced in the provisions of these clauses, supposing that 
 they would effect their purpose, it might have been a sub- 
 ject for consideration whether these acts were not an evasion 
 of the contract, ivhich in that case would appear to exist 
 between the college and the company^ Such is not the case ; 
 both parties were entirely at arms-length." 
 
 So where the trustees of a turnpike road, being applied 
 to by the promoters of a railway for their assent to carry 
 the railway across their road, gave their assent, provided 
 the same were carried over at a sufficient elevation, and the 
 road not sunk ; but there was no undertaking by the rail- 
 way promoters that a clause to that effect should be intro- 
 duced. The bill was passed, the House being aware of 
 the qualified assent of the trustees, and the trustees being- 
 passive, without any clause binding the railway company not 
 to lower the road. It was held that the railway company 
 was not bound by the terms of the qualified assent of the 
 road trustees; and an injunction to restrain the company 
 from lowering the road, to obtain the requisite parliamentary 
 elevation of the bridge, was refused (s) : and that, although 
 the lowering of the road rendered it, from its peculiar situa- 
 tion, liable to be occasionally flooded. 
 
 And a landowner, who, on the faith of a verbal promise, 
 made on the part of the promoters of a railway company, 
 that his land is not to be taken, abstains from opposino- 
 the bill and leaves the country, will not, notwithstanding 
 such promise and his absence, be entitled to restrain the 
 company from taking his land under the general powers 
 given by the act, if on a notice, pending the bill, being 
 served on his agent, requiring the land, he has been re- 
 turned to parhament by such agent as a dissenting land- 
 
 (s) Aldred v. ISlorlh Midland Railway, 1 Uailw. Cas, 404.
 
 30£ •TAYINO WHOHOFUL ACT* [PAHT II. 
 
 owner. umI tr, uted m iucii lUrougboul the conduct of Uie 
 bilU«) 
 
 17. Ill a CttM where the promotetv of ■ niilHay com- 
 pany , not having yet dctrrroined on a line, entered into un 
 agrt'ciuciil by dc«J with u luiidoMfiier, who wii* uI«mj a |)rfr 
 of |Mirliiiniciit, in hcu of iiiMrrtjng a cluu»c in ihr act, that 
 if tbi V iH-lfctcil a hue tlirough hia eaute they ahould pay 
 for ibi- prrmium '2<>.(HM»/., iiiid for collnlcnil '" 
 HM),(MM)/., uiid bu fur ibtMW.' coinkiderulioiiH wilb'i 
 op|XMition; the conipuny wa» rciktruincd from Huinnioning 
 a jury to iu«h«>hi« undrr tlir powers of ibr art ibf vubic of 
 bis fiitulr ; and ibat, '.illhou;;h lb«? linic liiiiittNl by ibc act 
 for ibfir iK>vvcr of compulHorily taking luiidn bad bo nearly 
 elapsed, that it must of luccHHily elapM-' Ixforc ibc qiica- 
 lion w briber ibc company were or not bound by tlic 
 agreement could l>c tried at law(/). In Uuh caae the 
 Court relied on tin- circun»»tance (bat no Iniiid on ibe le- 
 gislature could be imputed to ibe plainlitf, b«'cauHe at the 
 lime when tbe agreement waji entered into, it bad not be- 
 come bindiiijjj on tbe company to take tbe line to which 
 tbe com|K;nsalion in tbe agreemenl referred. And it may 
 therefore l>c sup|)osed thai tbe Court would have thought 
 the agreement im|Hacbable, if tbe intention of it bad l>ecn 
 to subfilitule a new I me fur that sanctioned by the legisla- 
 ture. But ibis point has since been delennined at law, in 
 a case where tbe question was as to tbe validity of an 
 ut;reement entered into between a jX'er of parliament and 
 tbe promoters of a railway company. The terms of the 
 atn^ement were, that if the plainlifl would withdraw bis 
 opposition to a bill then before tbe legislature, and bulfer 
 it to pass in its then existing sbapt;, tbe company would 
 use their utmost endeavours to procure in the next session 
 an act to deviate their line, and if tbe bill then in par- 
 
 (i) Uargrtorti v. l^neathirt and (f) JxtH Prfrr y. KnHern t'^^uutirt 
 
 Prttton Junct'um Rai/udjf Coni/xiiiy, 1 Hatltcatf, I Kail. Ca*. 462. 
 Rail. Cis. 416.
 
 CHAP. VIII.] OF A SPECIAL NATURE. 303 
 
 liament passed, they were to pay him 5000Z. for compen- 
 sation, on account of the injury arising from the proposed 
 deviated line. The agreement was not divulged either to 
 the House of Lords or to the landowners on the line con- 
 templated in it. The very essence, therefore, of the entire 
 arrangement was to obtain from parliament permission to 
 make a line, which, at the time of asking it, the parties did 
 not intend to make. The case first came before Lord 
 Langdale, M. R., on demurrer (ic), and his Lordship ap- 
 pears to have thought that such an agreement would be 
 invalid. It afterwards came on appeal before Lord Cot- 
 tenham, but his Lordship gave no opinion on that point, 
 and allowed the demurrer on other grounds {x). The ques- 
 tion was then tried at law, and the Court of Queen's 
 Bench appears to have thought the fact of the party with- 
 holding his opposition for a consideration, being a peer, 
 would not invalidate the agreement, but held that the cir- 
 cumstance of its being concealed from the legislature was 
 fatal (?/). Finally, it was determined in the Exchequer 
 Chamber, by the whole Court, that the agreement was not 
 invalid. The Court held, firstly, that in order to invalidate 
 .the agreement as a fraud on the legislature, it was not 
 enough to shew that it was in fact kept secret from the 
 legislature, but it was necessary to show that it was the 
 intention of the parties at the time of making the agree- 
 ment to keep it secret, an intention which was not shown 
 to exist. 
 
 Secondly, That as regarded the landowners the same 
 observation applied, viz. that there was no intention shown 
 to keep the agreement a secret from them ; but even if 
 there had been such intention, it was not clear that that 
 would invalidate the instrument, as there was no common 
 obligation on all the proprietors of land to place them- 
 selves on the same footing, but each might lawfully make 
 
 (m) Simpson v. Lord Howden.lRd^il. (y) Lord Howden v. Simpson, 1 
 
 Cas. 326; and see 1 Keen, 583. Rail. Cas. 347. 
 
 (x) 1 Rail. Cas. 338.
 
 304 HTA\l!*<i WROSOFL'I. ACTS [I'ART II. 
 
 the 1x^*1 barium h. ...il.l f-.r liiiiisilf III re»*|>oit of hiii 
 luiut. And, 
 
 Tliinllv, Tlml lhuui;li ll»e j.IuujUII wut. u I>ccr, ihul 
 WDulil iiol uflccl hu ni;l»l lo make uiiy UirKUiii for the 
 MiU* of III* luiid, or for a com|ici)MiUou for au injury d<mo 
 to il; ihc |)n>jtun)|)tiuii liciii^;, a* llicrr won no wv 
 ihe contniry, ttyil lii» f|uulity n* a |*ccr in no \n i • * 
 
 ilu- bar^unl in c|uc«tion; but that notwill. 
 ugrci'inant he wu* h*ft to cxcrcmc hii* frt-c ju 
 giving t»r williholtling bin votf according to h 
 u|>on the n)ca«urc wlum it came before him in hi* l< 
 bitivo cupucity (x). 
 
 18. In a cn»c before Sir L.Shadwell, V.C, a cunal com- 
 jMiny was rcHtniinctI, at the suit of oiu* c»f th« 
 
 from utHxiiig llie cor|X}mtc seal to a |K.'lition i- , , 
 
 to convert a portion of tlic canal into a railway, and from 
 applying any of the corporate funds to that p'; 
 And in another case of exactly the Hamc nature, : . 
 h'anied judge overruled a demurrer; but Lord Hroiigliam, 
 in a case of Ware v. 'J'he Grand Junction Water Com- 
 jmnyih), in which the case before the \' ice-Chancellor vmjt 
 citetl, held that the Court cannot, at the suit of a minority 
 of the shareholders of a company, incorporated under an 
 act of pariianuMit for certain purjwscs, restrain the company 
 from applying to parliament for powers to alter il« cha- 
 racter and objects, or from using its corporate seal and 
 funds in pursuing such application. Such a power his 
 Lordship held to be incident to corporations of that nature. 
 
 (s) Lord llowiUn v. Simpton, 1 BUtan Canml Company, 2 \\rt%%. it 
 Hail. Cas. 347. Myl. 480, o, 
 
 (a) In Cunlif ». ManchetUr and (h) 2 Him. ii .Myl. 470.
 
 CHAP. IX.] 
 
 OF A SPECIAL NATURE. 
 
 305 
 
 CHAPTER IX. 
 
 Injunctions in Matters of Bankruptcy. 
 
 1. General Ground of granting In- 
 
 junctions in Bankruptcy. 
 
 2. Injunctions to stay Proceedings at 
 
 Law by Bankrupt disputing the 
 Commission. 
 
 3. Application to he by Petition, and 
 
 not by Bill. 
 
 4. Whether Bankrupt can be made 
 
 Party to a Bill for Discovery 
 and Injunction, 
 
 5. Bankrupt may file Bill for Dis- 
 
 covery and Account, but not for 
 Payment, 
 
 6. Allen i'. Kilbre. 
 
 7. Assignees not in general restrained 
 
 from selling Effects. 
 
 8. Creditor cannot prove and bring 
 
 Action also. 
 
 9. Landlord cannot prove and dis- 
 
 train for same Retzt. 
 
 10. Injunctions to stay advertisement 
 
 of Bankruptcy in the Gazette. 
 
 11. Not granted ex parte to stay Issue 
 
 of improper Fiat. 
 
 12. Where Court will interfere against 
 
 legal Title of Assignees. 
 
 13. Injunction against Seqtiestrator 
 
 becoming Bankrupt. 
 
 14. ]] here Creditor by reason of an 
 
 Injunction and Bankruptcy of 
 his Debtor, has lost an Advan- 
 tage. 
 
 15. Commissioners not restrained from 
 
 examining Bankrupt by Charge 
 that the Petition has been got up 
 to procure Evidence against him 
 oj' illegal Gaming. 
 
 16. Claim oj' Assignees, to Lease exe- 
 
 cuted, but not delivered to Bank- 
 rupt. 
 
 1. Injunctions are frequently granted in bankruptcy, 
 to prevent vexatious litigation ; or to prevent the improper 
 or improvident sale or disposition of the bankrupt's effects ; 
 and for other objects which will be noticed under this 
 head. 
 
 2. Where a bankrupt has done acts evincing acqui- 
 escence under his commission, as where he petitioned in the 
 name of another creditor for new assignees ; or where, after 
 surrendering to the commission, without then questioning 
 its validity, he asks for an allowance, and assists the assig-
 
 306 ,i.sO WBONfiii 1 Arm [I'AHt II. 
 
 ii'-*'-. uiid then preccnU a petit;-.. uperuede the com- 
 
 iM-Hoii, \«|iicl) ill tliiiiniukHl by liu* Lord Cliuiictllor ; or 
 uiitir. Iiiivini; ucted hmincir um agent fur hi* aA^i'^Miees in 
 tliv Ktilr of hi* e«tutr, tu procure a purcha«rr, lie dispute* 
 the vulidtty of the cuninii*»iun, and bniipi an ejei-tiiieiit 
 »evvn year* afler tlie bankruptcy ;— in all lhc«« caM»«, uud 
 pnrtictiliirly if roimidemble time hoR cla|>M*d, he wrill Ixi 
 r< . ' •iDf.fj by injunction lioni bnii(;iii(; uctioiitf n^^uiiitl hi« 
 
 ill l.i jmrfr White, the bnnknipt wa« reutrain' ' ' ■ ■ r- 
 fietual iiijiiiitlion fruiii cunliiitiiiii; a then HubKini. u, 
 
 or fruni bringing any othcra to try the vulidily of the com- 
 iniHHiuii. 
 
 So ill Ex parte Davy (b) it wa« determined by the whole 
 Court of Ui.'vicw, that wlirre n bankrupl'ft coinmiftftion hud 
 iiiKucHi upwunis of t\v 
 nttnnptiiig to set it ;. 
 
 ncciuiesccncc more or Ichs htroii^, he should l>c rc»tniined, 
 aftrr such lenijthrncd ar<|i 
 against purchasers under li, _ 
 
 lidity of the coinmiH^ioi). 
 
 Hut it Seems that if a bankrupt wore to sitbuiil to the 
 coiiiinissionci-s under |)rolest that he is no bankrupt, he 
 might still bring nn action (c). 
 
 A bankrupt will also l)c rc.stmine<l in due time from fur- 
 ther vexatiously disputing the validity of his commission, 
 where he has repeatedly (jucstioncd it, and thwarted his 
 assignees in its progress (</). 
 
 Hut on the other hand, where a bankrupt mi..»>..i by his 
 petition, verified by aflidavit, that by his friends he was 
 willing and able to pay the creditors in full, except certain 
 consenting ones, an injunction wa'^ granted to restrain the 
 
 (a) FloKtr V. Herbtrt, 1 Vc». »en. (/>) I .Mont i Ayf 283. 
 
 326; Eiparl* II/iil*,2.Monl.& Ayr. (r) ?' v. //rrtrr/. 2 Vm. aeo. 
 
 104, and 4 I)e.ic. «c Chit. 279; Ex 326. 
 
 pari* />i<:N, 2 Gly. fit Jam. H"'? ' (rf) i(t i^or.i Eldoo in P ' 
 
 pat It Gruni, Huck, 90. 'ioodall, 17 Ve». 393.
 
 CHAP. IX.] OF A SPECIAL NATURE. 307 
 
 assignees from selling the property till further order, the 
 bankrupt undertaking not to remove or dispose of it in 
 the mean time (e). 
 
 But though the Court will not permit a bankrupt to try 
 repeatedly and vexatiously the question of his bankruptcy, 
 a single trial does not constitute that vexation that will 
 authorise the Court to interfere by injunction (/). Nor 
 will a bankrupt be restrained by equity from presenting 
 any more petitions to the Court, although he has presented 
 two for the same object, and both have been dismissed (^). 
 
 3. It was formerly doubted, and the cases were conflict- 
 ing, whether an injunction in matters of bankruptcy should 
 be obtained by petition or by bill. In an early case (k), 
 an injunction was granted in a cause on the motion of the 
 assignee, but the question of jurisdiction was not raised. 
 
 In£'a: parte Grant (i), LordEldon granted an injunction 
 upon the petition of the assignees, distinguishing it from a 
 case before Lord Thurlow, in which that learned judge had 
 refused to grant an injunction, except on bill filed, on the 
 ground that in the case before Lord Thurlow the creditor 
 had not come in under the commission, and therefore it 
 was clear that he could not obtain an injunction except on 
 bill filed. 
 
 In KirkpatricJi v. Dennett (k), Sir J. Leach allowed a de- 
 murrer to a bill for an injunction to restrain a bankrupt 
 firom proceeding at law to impeach the validity of his com- 
 mission. " If (said his Honor) a bill would lie, a bill in 
 the Court of Exchequer would also lie, and bankruptcy 
 would come to be administered in that Court. The proper 
 and familiar course is by petition." 
 
 In Ex parte Cutten (Z), the same learned judge made an 
 
 (e) Ex parte Figes, 1 Gly. & Jam. (h) Flower v. Herbert, 2 Ves. sen. 
 
 122; see also Alleyi v. Kilbre, 4 Mad. 326. 
 464 ; and Ex parte Hardiiig, Buck, 24. (i) Buck, 90. 
 
 (/) 1 Ves. & B. 216, 506. (k) 1 Sim. & Stu. 408 ; and 1 Gly. 
 
 (g) Ex parte Shaw, 2 Ves. jun. & Jam. 300. 
 40, a. (0 1 G!y. & Jam. 317. 
 
 x2
 
 308 tTAVIMC WHOMGFt > [PAIil II. 
 
 order on petilioo ; the pmnt of jurHMlictioii iloe^ iiot luxm, 
 however, to have been much argued in that cum.-. 
 
 All tlu* iorf^«»in^ cuM-» \»ric rrlcuiil to in JSx fMirlr 
 (t'to*iop(m), und I<oni Mlilun then •uu\, tluil ul^cr exa- 
 mining thrm all, he wwi Mtivftcd the only romctly wu by 
 hill. 
 
 In a iiub«MH|ucnl case(i«), the rjurtitiun of juruKliclion 
 wn* opiin tli«icuM*4*<l befurc I^ord I.yndhurvt, C, and hiii 
 LonUhip luadr nii ordrron (M>tiUun, taking however no notice 
 of the |M>int fifjunMliction. It i» to be obM:rvcd, ihnt in this 
 caAc lA>rd Kldon'A decision in JCx jtarte GlosMop wan not 
 cited, and the only cnxc u^niimt the jun<»diction to inukc the 
 order t)n |K.'lilion thnt wan cited, wuh I'lotcrr v. llcrbrrt, in 
 which It Ikih been already observed that the point wan not 
 dibCUKHcd. In Ex purl v Honiht/(o), Lord Brougham treated 
 it a« Kcttlcd bv authority, lliul the |)ro|)cr rourw: i» by jjeli- 
 tioij uiul not l)V bill. The |»oiiit w;i.h tiguin raiwtl Ixrfore the 
 (Jourt of Bankruptcy, ttincc the 1 dc 2 Will. 4, c. Mi, in the 
 form of an objection to the juriftdiction of *' * ' irl, on 
 the i^ound lliut un injunction can only be ;. m bill ; 
 
 and it was dtx-ided by the whole Court that it had jurisdic- 
 tion, on the ground that under the art referred to, it hud 
 power to detoniiine all such inalliTs in bankruptcy, a^ at 
 the time of the pa-ssing of the act *' usually were or law- 
 fnllv niiulit \h' broutiht bv jM-tilion or otherwise before the 
 Lord CliaiKclldr ;'" — and that tlic later authorities preced- 
 ing the 1 <k 2 Will. 4, c. oG, had established, that an 
 injunction ought to be applied for in bankrujitcy by j>c- 
 tition (p). Many cases also arc to be found in the bookn 
 before the 1 & 2 Will. 4, c. 66, in which injunctions have 
 been obtained in bankruptcy, on |x?tition, without the pro- 
 priety of that course being calletl in question (y). 
 
 (m) 2 Gly. & Ja. 268. Chit. 322. 
 
 (n) III part* Ltigh, 2 Gly.ii J«n». (9) fit part* VUtektr, I Ve*. & D. 
 
 332. 360; Kt fartt Hhiu, 4 I>eac. & 
 
 (o) I Monl. is ni. I. Chit. 179 ; F . • -«' F.^fM, 1 Gly. & 
 
 (p) fj part* Durv. i Dcac. & Jam. 122.
 
 CHAP. IX.] OF A SPECIAL NATURE. 309 
 
 And it may be stated as the settled practice now, that an 
 injunction in bankruptcy is to be obtained on petition (r). 
 
 It must not however be understood that the mere fact 
 of the party for or against whom an injunction is sought 
 being a bankrupt, makes it proper to proceed by petition ; 
 if the application is not properly speaking in the bank- 
 ruptcy, but to the Lord Chancellor sitting in equity, it 
 should be by bill and motion in the ordinary way. 
 
 4. It seems doubtful whether in a suit in which an in- 
 junction is sought against the assignees of a bankrupt, the 
 bankrupt himself may be made a party to obtain discovery 
 from him, and to sustain an injunction against his assignees, 
 by reading his answer against them. In a case of Whit- 
 worth V. Davis (s) this point arose, but did not call for an 
 actual decision. It was stated to be the practice that the 
 bankrupt may for the purpose of the injunction be made a 
 party ; laut Sir Thomas Plumer, V. C, objected that it was 
 difficult to conceive how the bankrupt's answer could be 
 read against the assignees, even for the purpose of an in- 
 junction, when clearly it could not be read against them 
 at the hearing. To this argument it may however be 
 answered, that there is a wide distinction between reading 
 the answer of a defendant for the purpose of obtaining an 
 injunction against another defendant, and reading it at the 
 hearing ; because at the hearing the reason for excluding 
 the bankrupt as a party, is that having no interest, no relief 
 can be had against him, and he can be examined as a wit- 
 ness. But for the purpose of an injunction, an examina- 
 tion of witnesses does not take place, and it is not in every 
 case that affidavits can be read. If therefore the bankrupt 
 could not be made a party for the purpose of discovery, 
 and if his answer could not be read for the purpose of sus- 
 taining an injunction, there would be in many cases which 
 might be put, an absolute denial of justice. It is sub- 
 
 ()•) See also on this Aiclibold's ami the cases there cited. 
 Bankruptcy, edit. Flalher, 338, 339, (s) 1 Ves. & B. 545.
 
 310 > I A 1 I ■»<< ** injj»v»«- I i. A» I I' '■ ^ "1 •' • 
 
 initted, tli« rct.rr, that what was stated in the cat»e .•! 11 hit- 
 tcirrtfi V. Dtirii U> U- llir turrviit opiiiiuii of the bur, MJcnis 
 MupiHirtetl by Htroiigcr reiuKming liiaii the op|iotite upinion. 
 A U-nnu'tl uutliur oti tin- mibjcct c.f iHtrticii to kuiln in ccjuity, 
 uflcr clmcuHniii}; the unthnntifk n-lrrrcil to, treut* llu- |»oiiit 
 n» ittill undrcicltti ( /). It iliouiti, however, be noticed, thai 
 in a rune of (irijfin v. Archer (u), in the Kxchrijurr, a dc- 
 nuirnr by u bankrupt to a bdl proyin^ a diwo»cry and 
 injunction in oid of an action ot law wbh ullowctl. 
 
 5. Where creditor* of a l>ankrupt, iniiteud of ttceking 
 reUcf under the conimiMion, bring on action oguinitt him, 
 it IH cicnr the bankrupt nmy file a bill of (lihcovcry, and 
 for an injunction ni tljc incun linu' ; but though a bank- 
 rupt, under such circunibtanccH, cannot auk for an account 
 and for payment of thai which ^hail -.r taking; 
 
 the account, bccautic that ImIoHj^s to '. >, -, yet if 
 
 the very ground put forwartl by the bill for aiikinsf the 
 stay of j)roceedings at law, is, that there arcr t.-<l 
 
 accounts betwien the bankrupt and the plaii". .aW, 
 
 the bankrupt has a ri'^^ht l«» hay that he will not be Bati»- 
 ficd by the mere answer of the defendant ; he ha« there- 
 fore a right to have the accounts taken as well as to di»- 
 covcry (»•)• 
 
 fi. The assignees of an insolvent partner ari <iiiiti<'i hi 
 his interest in the partnershij), but do not become partners. 
 And therefore an ex parte injunction will be granted at the 
 suit of the solvent partners, on the terms of serving imme- 
 diate notice on the assignees, to restrain them fr»jm selhng 
 the joint effects. But the solvent partners must offer to 
 account for the plaintifFs share (.r). The authority of the 
 case referred to, is qucsliuned by Mr. Collyer, in his Trca- 
 
 (I) See CaWert on Parties, 21. (i') Lowndu ♦. Taylor, 1 MaJ. 
 
 200, 202. 423. 
 
 (m) 2 An»t. 478. (') AH. I Mad. 464
 
 CHAP. IX.] OF A SPECIAL NATURE. 311 
 
 tise on Partnership {y), on account of the plaintiff not 
 offering to pay the joint creditors. He cites, however, no 
 authority to show that they are bound to do more than 
 account for the plaintiff's share. ^ 
 
 7. The Court will not, however, in general interfere to 
 restrain assignees from selling a bankrupt's property on an 
 allegation that the sale is too hasty ; because the assignees 
 act at their peril, and are to be the judges of the, propriety 
 of the sale (z). But when there have been cross demands 
 between a bankrupt and his creditor, which it is clear 
 would entitle the creditor to set-off at law, the Court of 
 Bankruptcy will restrain the assignees from bringing an 
 action, as it would be an improvident waste of the estate 
 to bring an action in which set-off must succeed («). 
 
 8. When a creditor has proved on a bill given by the 
 bankrupt, he will be restrained by perpetual injunction 
 from bringing an action on it. And in a case where the 
 creditor held two bills, and had proved on one, and it did 
 not appear clear on which the action was brought, the 
 Court referred it to the Commissioners, to ascertain what 
 was the fact, and stayed the action in the mean time (Z>). 
 In an earlier case the Court went still further. In that 
 case a creditor having proved his debt against the bank- 
 rupt under the commission, afterwards commenced an action 
 against the bankrupt, and had judgment by default, and 
 caused to be seized in execution part of the property of which 
 the assignees had taken possession; and the latter came for 
 an order to the sheriff to withdraw from possession, and to 
 redeliver such possession to the assignees. The Court said 
 there was no doubt it had jurisdiction to restrain the 
 
 (i/) Page 488. (a) Ei parte Clegg, 1 Mont. & Ay. 
 
 (s) Ex parte Mo7itgomery, 1 Gly. 91. 
 & Jam. 338. (b) Er parte Diack, 2 Mont. & 
 
 Ayr. 675.
 
 31S rrAVlMO WROMOFUL ACT« [part 11. 
 
 •ebure by u rrcdilor, Imviog proved lii* dcbl under the 
 coiuiiiiuiuii, ol ilmt pro|)erty which i»«* iiilciitlwl for liwtri- 
 butiuii between InniM-ir uiitl oihcni ; niiii that iii thi« 
 uiHtutK-r ihc t ourl wtt* warrautrtl iii n**in»uuui; the cn-tiuor 
 from proceeding ony further h i(h hi* oxccuImmi. Tlic Court 
 ultinmti-ly nmde tin- ordrj- pruyetl (r). 
 
 On Hunilur |*nnrn»lr» il hun been held, in ■ awe where 
 ihe ttgcnl of a foreign govcnimcnl wm ihc holder of bill* 
 due lo ihal govcrnnunt by a nurt Imiil rurrymn 
 in the foreign country nnd here; thtil on ibc iiihoI. i 
 
 the debtor IxJth III the foreign country und here, the holder 
 of the bilU WUH not entitled to j)artui|mte in tin i 
 
 ndniinistnition of tlu: buiikrupt's eHect* under ibi ,. ^ 
 of the fortign country, und to \h: paid dividends under the 
 bankruptcy here, but nui»t elect; and he wan therefore 
 
 re«tniine<l by the Bankruptcy Court from r< •■> any 
 
 dividends lun: until furtlur order. And tl. wan 
 
 ullirnud by the I.onl C.'Imnccllor on ap|>eal nl ). 
 
 ' 111, wIhii a person holds u joint and hr\ - ' M;r;f\ 
 t a partuersliip, ami one of the firm I" ' ^■ 
 
 rupt, lie may go in nnd prove under the bankruptcy, or 
 procc«d by action ai^ainst the jmrtiurhhip. Hut if he 
 proves under the bankruj)tcy, he will be restrained from 
 afterwards bringing a joint action, although one of the 
 defeiulants will be merely a iu)minal defendant. This was 
 decided in a case in which, Ity adopting thin pri>ceediiig, 
 the plaintiff in equity would have been deprived of set- 
 ting oft' in the action, a debt due- to him from the plaintiff 
 nt law {€). 
 
 y. And it was held in an early ciisc, that where a laiid- 
 lortl has come in and proved his debt for rent against the 
 bankrupt, and the assignee has sold the goods of the 
 bankrupt, the landlord cannot distrain uj>on them, al- 
 
 (c) Ex partt Bemaiconi, 2 tilv. & Ajr. 343. 
 
 Jaun. 381. («) Bro«ii#y v. blat4im, I R©*e, 
 
 (d) Ex parr* ChtmlUr, 1 Moul. & 273.
 
 CHAP. IX.] OP A SPECIAL NATURE. 313 
 
 though they remain on the premises, but the vendee is 
 entitled to them, and the landlord will be restrained from 
 distraining, and confined to his remedy under the com- 
 mission (/). 
 
 10. An injunction, of a rather curious nature, was sought 
 and obtained by petition in Ex parte Fletcher {g), viz. by 
 a party against whom a docket of bankruptcy had been 
 struck, to stay the insertion of his bankruptcy in the 
 Gazette. The docket had been struck in respect of an 
 accommodation bill accepted by the petitioner for the 
 petitioning creditor ; no demand had been made for two 
 years, and the petitioner swore that he was solvent, and 
 had offered to deposit the amount of the bill. The Lord 
 Chancellor ordered that the commission should be opened, 
 but that the declaration of bankruptcy should not be pub- 
 lished till he had inspected the proceedings. 
 
 And where a party made a bankrupt, alleges and makes 
 out a prima facie case that he is not a trader, and has not 
 committed any act of bankruptcy, the Court will restrain 
 the advertisement in the Gazette, pending the discussion 
 of the question, whether the commission ought or not to be 
 superseded {h). 
 
 But after adjudication of bankruptcy, the Court will not 
 stay the advertisement, unless on the face of the proceed- 
 ings there does not appear to have been an act of bank- 
 ruptcy, or a good petitioning creditor's debt (i). 
 
 11. Where a fiat in bankruptcy ought to be a country 
 fiat, and a docket has been improperly struck in London, 
 the Court will not grant an ex parte injunction to restrain 
 issuing the London fiat (7i). 
 
 12. The Court will sometimes interfere against the legal 
 
 (/) Ex -parte Grove, 1 Alk. 104. Ayr. 699. 
 
 (g-) 1 Ves. & Bea. 350. (J) Ex parte Wood, 4 Jur. 251. 
 
 (7i.) Ex parte Lavender, 1 Mont. & (k) Re Ings, 2 Monl. k Ayr. 671.
 
 314 -lAW^U WBONOFt'L ACTS [lUUTll. 
 
 titio of" ilir a-.si;^iifci» ttjt Mich, whcfc thc ns«erUon of hucli 
 1. -al tille wuulii o|Krnilc u|;uuiRl cou^ciciicc. Thus where 
 « creditor hold* policicM of nMurance of a bunlrupt as a 
 M.'curitv, he cannot Kell them without contention, k: '' -^ 
 llie urtjii^nectt c(inM*nl tu liie Mil*', hill the Court w ill ri 
 an actiuu hrought by the aMignM* oo such their mere le|^i 
 ri^ht(/). 
 
 So if an arrungeniciii luu been entered into wiili the mhc- 
 tion of thc Court, between a party claiming a debt from a 
 bankrupt tuui the iiHtiimieeH, tliiil the credil«»r should retain 
 u certuiii »uni «)t inoin-y, |*arl of the nuni in (liH|»ule ; thc an- 
 ai|^ncea will afterwards lx> rcHtmincd from bnnging an ac- 
 tion to reeover that sum, the rrn! ■ ' f' , I. 
 
 Ami wIhtc It a|>|H-are(l that t !- 
 
 lowed to thc creditor wuh in conifx^iiHation of pari 
 sum whiih he had paid to the huidlord of tin- boi "• 
 which ihererorc thc cstulc had brnclite<l, llic 
 WQH nmdc |K*r|>ctual ; the asftignecH, it apficarcd, were not 
 elected when thc payment wuh made, and it was made with 
 consent of the bankrupt («). 
 
 l.'J. A creditor of a clerpyman, who has obtained scques- 
 tr^ition apiinst him, and been appointed sequestrator, and 
 then U'comes hankrujit and is uncertificated, will be re- 
 strained from doing any act to discharge the soqueiitration, 
 or from receiving or demanding anything under thc same, 
 on an allegation that he threatens and intends to receive 
 and a])propriate the proceeds of thc sequestration, and that 
 lie will do so before the assignee can procure any seques- 
 trator to be ap|)oiiited (o). 
 
 14. When a creditor bring> an actum agaui>-i his debtor 
 in tlie Loril Mayor's Court for a dtbt, and is-ucs a foreign 
 attachment against such debtor's agent, and is tlien re- 
 
 (() Ei paru Bcoih, 1 MoDt.& Ajr. (n) IM. 
 
 93. (o) Zxjmnt Han, i .Mooi. \ Ayr. 
 
 (m) £f piru EUhtt, 3 Mont. J< .192. 
 A>r. no, «<->4.
 
 CHAP. IX.] OF A SPECIAL NATURE. 315 
 
 strained by injunction in equity from proceeding in the 
 Lord Mayor's Court, and before he can so proceed the 
 debtor becomes bankrupt ; he cannot be restored to the 
 same position as if the injunction had not prevented him 
 from obtaining judgment, and issuing execution before the 
 bankruptcy ; and the fund must go to the assignees, and 
 the creditor share only rateably (p). 
 
 In this case, Pulteney v. Warren {q) was cited as an au- 
 thority for the position that the party who had lost his 
 remedy at law, by reason of the interposition of equity by 
 injunction, would be afterwards, on the determination that 
 his claim was ah origine valid at law, restored by equity to 
 the same position which he would have been in, had no in- 
 junction been granted. But that case differs materially 
 from Ulloclc v. Barber in this respect, that in the former 
 there was not so much a destruction of the right at law in 
 the abstract, as an incapacity to sue at law for such right ; 
 whereas in Ullock v. Barber, the right of the creditor was 
 totally destroyed by the Bankruptcy Act(r). 
 
 15. Before the 1 & 2 Will. 4, cap. 56, it was determined 
 that commissioners of bankruptcy could not be restrained 
 from executing their duty of examining a bankrupt, touch- 
 ing a particular debt, because he alleged by his petition 
 that the commission was got up for the purpose of charging 
 him with unlawful gaming, and in order to obtain under it 
 evidence of that fact in aid of an action at law. The Court 
 said that if the bankrupt was in truth subject to penalties 
 for the mode of contracting the debt, he would be suffi- 
 ciently protected by the rule of law enabling him to refuse 
 to answer questions tending to criminate him ; and the 
 Court was not to presume that the Commissioners would 
 not do their duty {s). 
 
 16. A question arose in a very late case as to the claim 
 
 (;j) Ullock V. Barber, 6 Sim. 300 ; (r) 6 Geo. 4, c. 16, s. 108. 
 
 and see 6 Geo. 4, c. 16, s. 108. (s) Bx parte Burlton, 1 Gly. & 
 
 (<?) 6 Ves. 72. Jam. 30.
 
 31G STAYING WKONGFIL Afl*. [>'AHI II. 
 
 of o-Mjigiir. . I .. IttiAc granted lo the bankrupt by numc, 
 but Hi tlli-'ct bought with utlvuncLM mude by third purtieii, 
 and tlojn»nilird dirvctly with iht-m, without huviii<^ been de- 
 hvLTt-d to thi- bankrupt. The cu*c wan Uun : un under 
 leuHe or u pubhc-houve wa* granted for a prcniiuni, uud the 
 purchaser bcuig unuble t«» |wy the whole purchinw uk-ih y, 
 it wuH udviimed by the bre*ver* and diKtdlcm who bup- 
 phe<l the public-hoUMc, the Icum! l*eiiig depo*iti-d ut llic 
 lime of the iidvunce with them, uccording to the cuHtom of 
 the tnide, iunnediately rn*m the gnintor, uml without punn- 
 ing at all into the huiidh of the purehaser; a niemorunduin 
 being nt the name time executed, by which the IcHtec ro- 
 lited that he had drjMjsitid the Icane with the brewcm, See. 
 It liiriH-d out aflcrwanls that tin- purthaher wan ut the time 
 at) umeitifuated bankrupt, and ihi- OMbignees claime<l the 
 vahie of the leaMj, and brought their action aguiiiht the 
 phiintiMs, whoilainied to be enlilled to a hen for their ad- 
 vances. It wus held that on this state of circum»tanceM, 
 it inii^ht turn out to be the fact, that the nrniii<^'enient wan, 
 that although the lea-se was to be in the name of the pur- 
 chaser, yet it was in fact to the extent of the money ad- 
 vnnc<d bv the brewers to be for thiir iKiufit; und the 
 Lord Chancellor, without deriding whether if that should 
 be the case proved at the hearing, it would establish their 
 lien, held that there was so much doubt whether it would 
 not have that cllcct, or in other words, so much reasonable 
 ground for arijunicnt, that a proper case arose for the inter- 
 |)osition of the Court : and accordingly the action was re- 
 strained till the hearing, the plaintiff bringing the money 
 into Court. It was urged that the erpiity could be tried in 
 the action at law; but the Court said, even if it were so, it 
 was a case of equitable lien on the deposit of deetls, and 
 jKJCuliarly belonging to the jurisdiction of equity (i). 
 
 («) Mfuj V. Smith, Stager f. Smith, I Moot- 6t Dc Gci,396.
 
 CHAP. X.] OF A SPECIAL NATURE. 317 
 
 CHAPTER X. 
 
 Injunctions to remove outstanding Terms for Years and 
 other Legal Impediments. 
 
 1 . When an oiitstandvig Legal Impe- i 4. Will not be granted on Mution 
 diment loill he removed by Injunc- prior to the Decree, 
 
 tion. 5. Where, it seems, there would be an 
 
 2. Nut if there is a rebutting Equity 
 
 in the Defendant. 
 
 3. General Statement of the Doctrine. 
 
 Eiception. 
 6. Doctrine extended to the Removal 
 of other legal Impediments, as 
 well as outstanding Terms. 
 
 1. 1 HE remedy by injunction is also applied in aid of 
 the administration of justice in other Courts to remove im- 
 pediments to the fair decision of a question, by setting up 
 some purely legal title ; as for instance an outstanding term 
 or other interest in a trustee, lessee, or mortgagee (a). 
 Thus where a landlord, against whom ejectment was 
 brought, having by negligence suffered judgment to go by 
 default, and the tenant having attorned to the ejectors, the 
 landlord afterwards filed his bill, among other things, to 
 restrain his tenant and the ejectors from setting up the 
 lease to the tenant, in any ejectment which he the landlord 
 might bring. And Lord Eldon, C, held that the defend- 
 ant could not make use of the lease to narrow any of the 
 plaintiffs' remedies or to diminish their number. — " The 
 principle of this case," said his Lordship, "is, that it is 
 against conscience that the tenant should be allowed to 
 set up in ejectment brought by his landlord, his lease, not 
 to protect his own possession under his landlord, but for 
 
 (a) Red. PI. 134, and see 13 Ves. 298.
 
 318 liTAVIKO WHOKOPt'L ACT* [VXHI M. 
 
 ihe puqioie of ftctually evicting and excluding the landlord 
 from 1ms rclittion with liini m tenant. And llml it is un 
 in „ UM- of lii«i lco»c to priilett liii lillc under llioht* 
 
 t ic- liuM allunicd, iigaiiiAt liu luiidlurd i^b)." 
 
 2. Uul llii« rrlirf i* fouudiMl on the principle of there 
 U-ing u U-ttcr nuUtanliul nglil in the |*orty cluiuiiun U 
 than in hin opponent ; and therefore if there i« a rebutting 
 
 r«|mly m thr patty chuiuiii^ llic Ixiufil of such ] 
 Ic-gul Ulle, the (\»url will nul im«tfcn-. TIiuh whvn- 
 wuii a tenant for life under a devise, with |)owcr to gniul 
 hiultlin}: IfUHcH for «ixty-one ycurn in ] ♦ ti 
 
 |mrl* of the cjklulc an nhould lie fit fur I- 
 to contain projK'r building covenant* on the part of the les- 
 sees ; and tlu- ti'iiant for life iiiudt- a IcaM- for «• 
 yours of certain parts of ibc c«lalc, not for llie j. , "f 
 huvMi}; building thereon, and not containing any buildiiiK 
 covcnanlJi on the part of the U•^iWM•. It did not :t 
 that tlip Irs-rr had notice of the j>ottcr or of the fact 
 lessor h. iiiu merely tenant for life. In ejectment bt 
 by a «ul>se<iuent tenant for life against the ■-■. 
 
 lesftee, the defendant at law net up in b.* ; ; h 
 
 satisfied terms created by the testator. It wa» held, that 
 the lessee being a purchaser for valuable consideration with- 
 out notice, had a right to get in and set up outstanding 
 satisfied terms, and a bill praying an injunction to restrain 
 him from setting up the terms was dismissed with co»ti»(c). 
 
 .3. The general doctrine as to removing legal imjicdi- 
 mcnts to the fair trial of a right is stated by Lord Chan- 
 cellor Manners to be, that the Court never h' to 
 remove a temporary bar for the purpose ot enal> _ , 
 to assert their legal rights in a Court competent to decide 
 them, unless there be fraud, |)ositive or constructive, im- 
 putable to the plaintiff in equity ; or unless tin d. f.ndant 
 
 (^) Biikfi V. Melliih, 10 Vc*. 544. (c) CoMum%. - m. '>52. 
 
 S
 
 CHAP. X.] OF A SPECIAL NATURE. 319 
 
 be protected as a purchaser for valuable consideration 
 without notice ; but the plaintiff may by acquiescence im- 
 pose such difficulties on the other party, as to prevent the 
 Court from interfering to protect the plaintiff by removing 
 such temporary bars (d). 
 
 4. But it must be observed that an injunction to restrain 
 setting up outstanding terms will not be granted on motion 
 prior to a decree or decretal order, as the principle of such 
 a bill is, that the Court directs the mode of proceeding at 
 law under a decree ; and that in general till the decree, the 
 Court must suppose the parties to be litigating upon ques- 
 tionable rights (e). Consistent with this doctrine are two 
 late determinations from which the rule is to be collected, 
 that an injunction will not be granted on motion to restrain 
 the setting up of outstanding terms, or generally to aid 
 trials at law by equitable relief, where the plaintiff's equity 
 is not made out, and where it may appear at the hearing 
 that the defendants have also a right to equitable assist- 
 ance in the trials at law (/). And the plaintiff must al- 
 lege that there is an outstanding term, and state what sort 
 of a term it is ; a mere allegation that the defendant 
 threatens to set up some outstanding term will not do {g). 
 
 5. In a very late case, however, in the Exchequer, where 
 the answer admitting the title, set up a defence consistent 
 with that admission, and on which the Court thought at 
 the hearing it might have to pronounce ; although the in- 
 j unction was refused on that ground, the Court seems to 
 have thought that if a party files a bill claiming under 
 a legal title, merely to remove out of the way outstanding 
 terms, which the defendant might set up at law, and the 
 
 (d) 2 Ball & Bea. 137. Stu. 419 ; Norihey v. Pearce, ibid. 
 
 (e) Hylton v. Morgan, 6 Ves. 293 ; 420. 
 
 Byrne v. Byrne, 2 Sch. & Lef. 537 ; (g) Stambury v, Arhwright, 6 Sim. 
 
 and see Jac. 196. 481 ; Jones v. Jones, 3 Mer. 161 ; and 
 
 (/) Barney v. Luckett, I Sim. & Baker v. Minter, cited ifeirf. 170.
 
 320 ftTAtlWG WROWOrtJL ACT" [PAHIJI. 
 
 title ol the pluiiitili itt iiiiiuittcd timpiieiter, uiid no defence 
 hct up which cuuld L>c mudo a defence at the heunng, an 
 hijunctioii nii(;hl Ijc i;run(ed on aioliun lu rvmuve nucli 
 uutNliUiding term (A). 
 
 (». The name principle will Ik* npplirti to the renj«»\ul ni 
 uther le|;ul nn|)cdnncntii tu the fair inul uf a ri(;ht ut luw. 
 ThuM u\ a cute uf groM fniud, mhcrc the defendant hud 
 taken fMMt»c«»iun uf the eiitiitcH uf the plaintiliH, and had 
 levied u tine uf which they hud nu kiiowlcd(;e, und met 
 their cluiniH by vuriuuH fruudulcnt defenccn, keeping tJic 
 tine buck until the (ive ycurK nnd nun-clmin hud run ; tin; 
 llt)u»e (»r I.oril« determined (rcvcrwinn the deci»iun uf the 
 Court below j tliut he hhould be rcHtniincd from »elting up 
 the line in bar tu un action of cjeclnienl(i). And no llio 
 Court has restniiiuni a party frum nctlini; up the Statute of 
 Liniitalioiis ut bar at law, a^aiiiht iiihlrumciiL», the validity 
 of which was the subject of litiguliun in a buit instituted 
 In-fore the statute took etftcKA). 
 
 Hut in llu!»<; cases a^ well as othcni the general rule 
 prcvaiU, that ecjuily nuist be Halisficd that the • party 
 rlaiiuini; its assisUiiue lia^ the bupcriur sn' ' ' il 
 
 rii;lit. And wlure a (allicr made a volunti: ■ <• 
 
 to his son, and afterwards the son gave the father a general 
 release, the Court refused to restrain the release Ix-in^ set 
 up against an action on the covenant, aayin;^, if the cuve- 
 nant had been for valuable consideration, setting up the re- 
 lease should have been restrained ; but as against a volun- 
 tary deed a party should not be deprived of any defence 
 he might have at law(/j. 
 
 (/i) liingtr V. B/akf , 3 You. 6c Col. (fc) Pmiind t. Tumrr, FiU. I0&. 
 
 591. (/) Sirdffittd ». I'riei, 2 You. it 
 
 (i) Pinektv. Thomyenft, 4 be. V. Jcr. 73. 
 C. 92.
 
 CHAP. XI.] 
 
 OF A SPECIAL NATURE. 
 
 321 
 
 CHAPTER XI. 
 
 Of Injunctions in Interpleader Suits (a). 
 
 1. General Principles of hilerpleader 
 
 Suit. 
 
 2. Case of Exception to the General 
 
 Rule. 
 
 3. Practice is to obtain Special Injunc- 
 
 tion at once. 
 
 4. No Affidavit of Facts now 7ieces- 
 
 sary. 
 
 5. Of bringing the Fund into Court. 
 
 6. Course where some of the Parties 
 
 are out of the Jurisdiction. 
 
 7. Stakeholder Defendant in a Suit 
 
 touching the Fund in dispute, 
 cannot move for Injunction, 
 
 8. Of Interpleader by a Tenant 
 against his Landlord. 
 
 1. The principle on which an interpleader suit is sup- 
 ported is, that the plaintiff claiming no right in the subject- 
 matter, is doubly vexed by having two legal processes in 
 the names of different persons going on against him at the 
 same time. It is no answer to say, that he may defend 
 himself against the first who brings an action, and that, if 
 he succeeds, there is an end of the claim of that party ; 
 but if he fails, that furnishes a defence to the claim of the 
 other party. That is precisely the situation in which the 
 party so claiming no right in the fund, ought not to be 
 placed. 
 
 The doctrine above stated was laid down in a case of 
 Langston v. Boylston {b). In that case A. deposited secu- 
 rities with his bankers, and was afterwards thrown into 
 prison by persons claiming against him as creditors of a 
 
 (a) III strictness, the subject of 
 this chapter would fall under the head 
 of injunctions to stay proceedings at 
 law and ia other Courts ; but it has 
 
 been found more convenient to treat 
 of it in its present place. 
 (6) 2 Ves.jun. 101.
 
 .>^J jiTAV'v, vvi?os«prL ACT"i fPAUT II. 
 
 (inn of which ht* \^a^ .i {•utner. Auaclitn. ut^ ssere thcu 
 Bt-rvctl by ihow: |)urtiL*» oil thr gotxU of A. Ill the haiidit 
 of the boiikent. The hitler rcfuMHl to dehver up the 
 guoiln to A., uiik'Hii he nhuuld lie builetl, mid the uttach- 
 inciitii tukcii oil. A. then brought an uclioii u^ituthl tlic 
 buiikent, und arrc«tcd thcni ; and ihey then brought their 
 bill of iiitrrplender. The Court imid, that n ' i 
 
 niUft b»* gnuited. .No order uun, however, i ' 
 
 wuM rtimlly agreod thnl A. Hhould defend tlie nttachinentjt 
 ill tlie ii(iin'*H of the biinkerM. 
 
 i)n tlie Hiunc principle it h;iJ» been held, iliut where there 
 nrc HcvemI rlnimnntA to annuitiefi granted out of a rcnt> 
 iluirge vented in ;i Iruntee, and the owner of the nnt-char^c 
 and the unnuitanls re(i|x;ctively claim the annuilieH, the 
 terro- tenant is not precluded from filini* a bill of niter- 
 pleader, from the circuTnstance <»f there beinj; but one legal 
 owner, against whom he may have no defence at law (r). 
 
 And it may be here obnervcd, that in an interpleader 
 suit, an injunction may be gnmtcd tu rcKtrain proceedings 
 in equity as well as at la\v(f/). 
 
 The principle of AtujcU v. JIadden fteems to have 
 been repudiated in a case l>efore Sir John Leach, V. C, 
 where ln>i Honor doubted whether an injunction could l>e 
 t;runted in an inlirpleading suit on behalf of a captain of a 
 fradiiiiT ship, against a jrarty claimini; paramount the bill 
 o\' ladinu, ; on the 'ground that as afjainst such a [>arty the 
 laptain would be protected by delivery according to the 
 bill of la(ling(e). But in a later case(/), the same learned 
 juilgc thought such a bill might be filed. On the whole, 
 it is submitted that the doctnne of the two i a-< ^^ fir-f ( ifrd 
 must be considered as the better opinion. 
 
 The later ca^e of Warington v. \Vhcatstone\,y', aliliuugh 
 the precise point <1"' n"» ."'-ni u. ii ,!^,, supports the 
 
 {{) AngtH V. lladdtn, \o Vt-a. \^*) 6 Mudd. 278. 
 
 244. (/) ^lorlty r. Thompu^n. 3 .Mad. 
 
 (.i) CravJ,frd %. 1. 5^.4. 
 
 Iniirn. N' .< iol. (g) J«c.202.
 
 CHAP. XI.] OF A SPECIAL NATURE. 323 
 
 principle, that the mere circumstance tliat the plaintiff in 
 an interpleader suit might have been protected at law by 
 payment to one party, does not preclude him from biinging 
 an interpleading suit, but that his right is to be protected 
 against the double vexation. In that case two parties 
 claimed against an insurance office a sum of money, for 
 which the life of one Henderson had been insured ; and 
 one of the claimants had filed a bill against the surviving; 
 directors of the office for the sum, and for an injunction to 
 restrain them from paying it to the other claimant; and 
 afterwards that other claimant brought an action against 
 the directors, on which they filed their bill of interpleader 
 against the claimants, and moved for liberty to pay the 
 money into Court, and for an injunction to restrain the pro- 
 ceedings at law. It was objected that the first suit was a 
 sufficient indemnity to them, for that they might in that 
 case move to pay the money into Court ; or if not, that the 
 plaintiff in that suit might move for them to do so ; and if 
 he neglected to do so, and they paid the money to the 
 other claimant, they would be indemnified. But the Lord 
 Chancellor on appeal held, that their right to the protection 
 of an interpleader suit was not taken away, because the 
 plaintiff in another suit might move to have the money 
 paid into Court. " If," said his Lordship, " you do not let 
 them have the carriage of the cause, and the plaintiff in the 
 other does not move for them to pay the money in, I ques- 
 tion whether his not doing so would be an answer to him 
 at the hearing, for the pendency of the suit is notice of his 
 demand." 
 
 2. In a case, however, where bankrupts having large pro- 
 perty in the hands of their bankers, the creditors did not 
 proceed with the commission, in consequence of an agree- 
 ment for payment of their debts by instalments at a given 
 time; and the bankers refused to honor the bankrupt's 
 drafts pending the commission ; lest, if the commission 
 was executed, they should be liable for paying the money 
 
 y2
 
 '324 *<^.\^l^<. \\ iiom.i i u aci^ [part ii. 
 
 ulU-r iiutici- ul ilir liuiikrii|itL-y ; uiid the ttaiiLrupU bruu^lii 
 ail action u;;uintit tluiii ; llic (A>urt )i«Ui tlic buiik(*n> roull 
 nut liuvo nil injunction agttiiut that action ; because if tliu 
 bHiikriiplM rfc-uvrri-<l u vcrdit'l iHind /iVcu^ainht llic bunkcnt, 
 tlic latter wuulU be jufttilictl m |juyii' <l" ••>•<>• v 'i 
 
 3. It Kccmfi to have been fonnorly tin- pruclicc tu gnuit 
 an inj miction to Htuy iiruemlin^h at law in nn inteqileailing 
 Milt on bill litctl ami (iU|)|K)rtf>d by aliidavilh iN-furc aiiKwer 
 or drl'unlt. That pmctice wa« aflcrwanU altered in CVoy- 
 t/oH V. Si/mons [k), by the \'icc-Cliancellor with the »anc- 
 liun of the Kuril (^hancellur ; and fur home time the jirac- 
 tice was tu treat an injunction to slay proceedings ot law 
 in an inter]>l(>adini^ suit, a>^ standing on the same principle 
 u> an iiijutK'tiun to stay proceedings at law in any other 
 suit. And tlierelore an ex parte injunction on atBdavits 
 nelore answer WDuId not l>c {;n»iited in nu interpleadin'^' 
 hiiit to restrain actions brought against the plainliti by the 
 defendant(/). Hut the pnicticc is now that the plaintiiF in mx 
 interpleader suit may apply at once for a f(|>ccial injunction 
 to stay all proceedings, on paying the money in disjuitc 
 into Court. The common injunction need not l>c fii^t ob- 
 taineil (m). And a case is menliuiied by Mr. Smith, iii 
 which an injunction was ixrantcd, although tho trial was 
 comiii'^ on the next day (u). 
 
 4. The plaintill" may move for liberty t«) pay the money 
 into Court, and for an injunction without suj)porting his 
 motion by an alhdavit of facts (o). 
 
 In Liini/slon v. Boylston, the Lord ( iianceljor saiii, as 
 regarded reading alliduvits against the answer, that an in- 
 terpleading bill is exactly ujjon the footing of a bill to stay 
 waste, and may be sui)ported by specific evidence of facts, 
 
 (i) Kii//<i V, (iifciofi, '2 Cox, 24. (n) I'iHing v. Kdwardi, I Smilb't 
 
 (fc) 3 .Mad. 130. Trac. 2d edit. 475. 
 
 (/) Sec also 3 Mad. 131, n. a. (•>) Walbankt v. Sparks, 1 Sin. 
 
 (m) Yicar^w ]Vidgtr,\ Sim. 15. 38-5; icc also Sedpcick ». CUg^, 4 
 
 Jur. 742.
 
 CHAP. XI.] OF A SPECIAL NATURE. 325 
 
 as well as it is in all cases by specific evidence that there is 
 no collusion ; and his Lordship thought that he ought to 
 have admitted affidavits on the part of the plaintiff against 
 the answer. 
 
 But at that period it was usual to support an interpleader 
 bill by an affidavit of facts, which, as above stated, is now 
 unnecessary. All that is now requisite is, that the plain- 
 tiff should accompany the bill by an affidavit that there is 
 no collusion (p), against which no affidavit will be admit- 
 ted (q). Whether therefore the doctrine of Langslon v. 
 Boylston on that point be right or wrong, it seems at pre- 
 sent to have no application. 
 
 5. In an early case, it was laid down that the plaintiff, in 
 an interpleading suit touching a sum of money, cannot have 
 an injunction till he has brought the fund into Court (r). 
 On this Lord Henley observes, that it should seem that 
 the rule would only apply to those cases where the plaintifl' 
 applies specially by motion for an injunction, as there 
 are several cases in which the common injunction had been 
 already 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 (s). 
 
 It must be observed, however, that since it is now unne- 
 cessary, and in fact irregular, to obtain the common injunc- 
 tion, the rule may be said to be of universal application in 
 interpleading suits ; and indeed in the common order for 
 an injunction in an interpleading suit, the injunction is 
 directed to issue upon bringing the fund in question into 
 Court ; and if without the special direction of the Court, 
 the order is so drawn up that it does not make the bring- 
 
 (/)) See 1 Smith's Prac. 2d edit. 36. 
 
 474 ; and 1 Craig & Phil. 188. (s) Eden on Injupctions, 346, re- 
 
 (q) Stevenson v. Anderson, 2 Ves. ferring to Brimer v. Buchanon, cit. 
 
 & Be. 407. 3 Br. C. 36; Surrey v. Wallham, 
 
 (r) Dungey v. Angove, 3 Br. C. C. //)/</.
 
 326 «TAVIVG WnONCPUL ArT<.- f I'AIIT II. 
 
 t: into ()ourl A Cotnlillun liiLrcdLttl tu the 
 
 1 ,... iiij unction, the <»••' ■ ^* I' '»«• iii>-< liui* id («»r 
 
 1. \(t). 
 
 Ill uii I icial lite Coiiil will icrtliulii 
 
 either |iuiu i- ... | :■•■_ ..^uniitt the ktiikclniUlcr ; hut 
 
 It u|>|M'itrN hy JJuwsuH v. I/aritca*tU(u), lliui where the 
 Chunnilor thuu^^ht tiic |>onil between tli uIh muuIU 
 
 lie decided in an uction of trover br«jU|.i.i .., -.i.c orih<iii 
 ii^unittl thi- |«hiintiri in ci|uity, liiu injuncliuii wum reluMd. 
 In thitt CUM- the Ixird Chuncellur huid, the |iluintifl' m tu 
 huve his cohtH in un inlerphiidrr suit, hut he never knew 
 thiiii ^ivcn uM hi twceii di riiKhinUi. Dut it Heeiuh by tiie 
 ilecree(j:) that the (h'Tnulunl liardcuHtle wan directed to 
 |my to the jiluiutiirund to the other defenduntJi their costA. 
 
 (i. All inlerpleudcr bill itj not deiuurruble lK'cau»e Hotue 
 of the jiartics ralU-d upon to intcrplrud arc (juI of the |uris- 
 dictioii ; tor u ]M>rson out of the juribdu lioii may tlin-utiii 
 uiui l)iin<r an action. An injunction, therefore, to ret»train 
 proctediiitjs at law will Ik' ijniiitrd notwiil that 
 
 circuuisluiicc ; but tin- |>laintiti iniiiil use du _ ucc to 
 
 brins: the |)urties within the jurisdiction (y). The courve is, 
 that if the plaiiitiH uses due diliiicncc and cannot briiii; the 
 parlies wiihin the juriifdirtion, that defi-ndant who duc» 
 come before the Court must have the thing the subject of 
 dispute, and the plaintiH" would be protected a^aint>t the 
 domaiuLs of the other defendants by perpetual injunc- 
 tion (r). And in a case where the subject was a |>ohcy on 
 a cargo lost, an injunction was {iranted in an inteq>learier 
 suit, although both defcndnr • •■ ■ -^ 'riinir abroa<) (a). 
 
 7. Where an action is brouy,ht against the Hank by one 
 
 (() Sieieking v. Behrens, 2 My. v\ ■ \. Anderion, 2 Ve». 
 
 rr.681 ; Puu/i v. Von MelU, 8 Sim. A lita. 4«J7. 
 3-27. (i) 2 Ve».aL Uea. 411. 
 
 (u) I Ves. jun. 3(38. (<i) Martinitu v. Htlmmh,2 Ve>. 
 
 (i) /6i<i.; ar.Ufc> r. ^CnT.eTft. .^ H. 41-2. note.
 
 CHAP. XI.] OF A SPECIAL NATURE. 327 
 
 of two parties claiming the same fmid, for refusing to per- 
 mit a transfer of stock, the Bank cannot, as defendants in 
 a suit touching the fund, move for an injunction to restrain 
 the action, though they may file a bill of interpleader, if 
 they think fit (b), 
 
 8. Generally a tenant cannot sustain a bill of inter- 
 pleader against his landlord, on the ground of an eject- 
 ment brought by a stranger; for it would be in effect 
 to put it in the power of a tenant to make his landlord, 
 who would be the defendant at law in the ejectment, 
 disclose his title by an interpleader bill (c). But a tenant 
 does not, by admitting the title as landlord, of one of two 
 claimants, in ignorance of his title being disputed, preclude 
 himself from filing a bill of interpleader (d). And if two 
 persons claim of the tenant rent in privity of tenure and 
 contract, as for instance, if mortgagor and mortgagee, or 
 trustee and cestui que trusty claim it of him, he may file a 
 bill of interpleader (e). 
 
 And where the double demand against the tenant arises 
 not out of the act of a stranger, but of the landlord him- 
 self, as where the lessor of tithes became insolvent, and his 
 assignees and the vicar both claimed them ; in such a case 
 the tenant may sustain an interpleader suit against his 
 landlord (/). 
 
 Before concluding this subject, it must be observed, that 
 by a late statute (^), Courts of law are enabled to give 
 relief by interpleader, against adverse claims made upon 
 persons having no interest in the subject of such claims. 
 
 , (b) Birch V. Carbm, 1 Cox, 144. (e) Ibid. 312. 
 
 (c) Diuigey v. Angove, 2 Ves. jun. (/) Coxolan v. Williams, 9 Ves. 
 304. 107. 
 
 (d) Jew V. Wood, 1 Craig. & C^) 1 & 2 Will. 4, cap. 58. 
 Phil. 185.
 
 328 
 
 wi'OSCFl I. ACTrt 
 
 [I'AKJ II. 
 
 (II \I'I I H \!l 
 
 (tfthe JiiiUdictioH in tjeHcral to ijrunt Injuurtiont to itay 
 tCTonnful Act$ of a gpecial Aulure. 
 
 btt^ut* tktrt It a lUmtdti at Ldam, 
 1. JurinltetitiH U> inlfrjtit m VauioJ 
 
 3. JuiiuttelumtoTttUtiin the Marriai* 
 
 ttj /n/unli. 
 
 4. JuritdtcttK'n ul !•> Ht<ogHiUvH »/ at- 
 
 Ugtd Jor*igit Goi-*rnm*nn. 
 6. InjunelioHlin Matlfl of St^mttra- 
 
 liom, 
 6. Actioin broughl on fortigm Juiig- 
 
 ttenti. 
 
 7. /ii/iiNriiM« lo iMy Ikt StUimg tf 
 
 .SAip*. 
 
 8. SttttitMg ikt trnproptr Tr»n^rr of 
 
 Stock. 
 
 9. A$ lo l'rot»<ilingl ty nnd n-iftrif 
 
 Iht Il4tiih. 
 
 10. Ityuntlit>ni to tjuttl I' 
 
 11. IryuMfliont agttntt t'Jtetm4ml. 
 
 12. Injunetiont to tUy &a/«. 
 
 13. /(f/Mitrlioiii at l>Htr*en e^uil*hU 
 
 M. Of perpetual I 
 
 L .\ |)l.i{ this lujul I propose to refer to some case«, which 
 do not appear strictly to fall mulcr any of the general heatln 
 of equity which have boon discussed in this part of tho 
 present essay, and which show more especially the naturo 
 and limits of the jurisdiction to interfere by injunction. 
 
 1, \\ c have seen it incidentally dccidod in many of the 
 cases cited, that the jurisdiction of equity to interfere by in- 
 junction, is not necessarily ousted Ixicause ihore may Ijc a 
 remedy at law. This question lias been, in some cases, the 
 principal point. In an oarly case in wliich it was dis- 
 cussed, it was settled that althoufrh a Court of Law may 
 prevent a bond creditor from taking; out execution beyond 
 his ju«it (It bt, that docs not take away tho jurisdiction of
 
 CHAP, xn.] OF A SPECIAL NATURE. 329 
 
 equity to grant an injunction (a) ; a fortiori, where there 
 is an equity of which a Court of law refuses to take 
 notice. 
 
 In a case before Lord Eldon, A. being the creditor of B., 
 assigned his debt to C, in order that C. might employ his 
 brother, an attorney, to recover it as if for himself, a me- 
 morandum declaratory of the trust passing at the same 
 time between A. and C. ; C.'s brother did recover a sum of 
 1000 guineas from the debtor, and then having othei- trans- 
 actions with A., brought an action against him for his bill 
 of costs, refusing to account to him for the 1000 guineas ■ 
 and after several proceedings in the Court of King's Bench, 
 the Court ultimately refused to enter into the merits of the 
 declaration of trust. This being the case made by the 
 bill, which prayed an injunction against the attorney, the 
 brother of C, to restrain him from continuing the proceed- 
 ings against A., and from proceeding against the sheriffs, 
 a general demurrer by the defendant was overruled, on 
 the ground that the Court of law had pronounced an 
 opinion that it could not try the equitable right; and a 
 special injunction was granted to restrain the defendant 
 from proceeding against the sheriffs (&). 
 
 But when a party is in possession of a ready furnished 
 house, under an agreement for a lease for three years, and 
 the creditor of the landlord obtains judgment against him, 
 and the sheriff under z. fieri facias enters on the tenement 
 and seizes the furniture, equity will not grant an injunc- 
 tion to restrain the sheriff from removing or selling the 
 effects during the term ; for if the tenant has a possessory 
 title, and if the sheriff has no right to seize, the remedy is 
 at law (c). 
 
 And here may be repeated as a general rule of jurisdic- 
 tion, a proposition which I have had occasion to state in 
 reference to several particular cases, viz. that the Court will 
 
 (a) Coddw Wooden, 3 Br. C. C. 73. (c) Gantin v. Asplbi, 1 Mad. 151. 
 
 (&) Farqnaraonv. Fitchey,1Ji\\s%. 81 .
 
 :J30 0TAYIMG WRONOPOL ACTH [I'AHT II. 
 
 not vnuit ui» injuiu-tion in aid of un ullei;e<l U-^al lij^lit, 
 wliin- it liHH hiioii;^ jlouliU whclliur suih riglil v\ill no! 
 full in u Court of luw (d). 
 
 2. That ilu:(x>urt iinji juriwlictiou to inU'rferu in cu^e* of 
 (lurcMs i« undoubted (*) ; but it liajt rcfuncil to carry Uiiii to 
 fur ns to rrwtmin h IiuhUukI on u luvn: ull 
 
 htndtil «lurtt.H, from rrfuwMi;; to |Mrniii 1 
 whilu dangerously ill, by |>ernonii who, uitliout njiccirtc iii- 
 (itniflion* frtMnlior, hud |)ii?|mr.Ml adred forhcr ixrtulion, for 
 the pur|Kme of fxcici»»nij< a power of ttp|>ointnu nt U> the ex- 
 clusion of the huHbiind (/). It may neeni »oinev*hut extraur- 
 «lin;irv that such a j»r«)|)osilion bhould ever have Ixeii uimU- 
 to a ( V>urt of e(|uity,. since in the first jduco llie order auked 
 woulil he in etiect an order to compel the defendant to do 
 an act, a kind of order which we have hccn ihu (>oun de- 
 claim juriwliction to make directly in any case; and which 
 it luakt s circnitously only in caiics of irreparabUi mi»chief 
 in the nature of dcHtruction ; and in the wscond place it 
 would he dillicult to hhow how, from the simple circuin- 
 t>tati(-f ol a nianied uoman ha\ini( he(jarale ebtatc, an 
 wpiity can arise in favor of her relalums, cntitlin;; tlieni to 
 demaiul :ic<«ss to her, aj^aiiiftt the will of her husband, in 
 the absence of clear and jiositivc iiisfructions from herself. 
 
 3. As incident to its custody ut iniaiit-, the Cuurl of 
 Chancery exercises a control over their inarriagea by in- 
 junction: therefore the Court, to prevent the marriage of 
 an infant ward, except under its contrcd and direction, 
 will enjoin the party proposing, from marrjing such ward ; 
 and if the party is an infant, the guardian will be restrained 
 from permitting the marriage (</). 
 
 And if an infant ward of tie Curt |i .< been actually eu- 
 
 (./) Sec Whitchurch V. Hide, 2 (./ ; M> uiletonr. MiddUUm, \ Jac. 
 
 Alk. 391. &W.94. 
 
 («) Slr,iihmore ^. Boitet, \ Vos. (^) imil/i v. SmilA, 3 Alk 304. 
 jttn. 22 ; 2 Br. C. C. 345.
 
 CHAP. XII.] OF A SPECIAL NATURE. 331 
 
 trapped into a marriage, and there are doubts as to the 
 vahdity of it, an injunction will be granted, pending a 
 suit in the Ecclesiastical Court for determining that ques- 
 tion, to restrain all the parties to the transaction from hav- 
 ing any intercourse personally, by correspondence, or other- 
 wise with the infant (//). 
 
 4. It is clear that a body purporting to be a foreign go- 
 vernment cannot be noticed by the Court as a plaintiff, if 
 it is not recognised by the government of this country (i). 
 And it seems doubtful whether the Queen's Courts can in- 
 terfere at all on the subject of contract between British 
 subjects and a foreign government not recognised by this 
 country (k). But it will, with a view to secure money for 
 the parties who may be decreed to be entitled to it, inter- 
 fere to restrain a department of the executive government 
 of this country from doing a mere ministerial act {I). 
 
 And where the property of an English subject in France 
 was sequestered during the French revolution, and came 
 within the 59 Geo. 3, cap. 31, and the conventions be- 
 tween the governments of France and England for com- 
 pensating Enghsh subjects whose property had been ille- 
 gally confiscated ; the Lord Chancellor thought it was within 
 the jurisdiction of equity to interfere between parties setting 
 up claims, one as executor, and another as next lieir by 
 the law of France ; and to resirain the agent of one, who 
 had received the compensation money, from paying it to 
 his principal. The injunction was, however, refused, on 
 the ground of the evidence being insufficient to show what 
 was the law of France, and what was the title of the party 
 claiming under it{m). 
 
 5. In a case where there were two incumbrancers on a 
 rectory, and the one whose debt was posterior in point of 
 
 (7t) Warter v. Yorke, 19 Ves. 454. & Russ. 299. 
 
 (i) City of Berne v. Bank of Eng- (Z) Ellis v. Earl Grey, 6 Sim. 214. 
 
 land, 9 Ves. 347. ('«) Hill v. Reardon, Jac. H4. 
 
 (fc) Jones V. Garcia del Rio, 1 Turn.
 
 332 STAYINli W KONG PI L ACTS [pvnTII. 
 
 time had taken out scqueslration, the Court assisttd the 
 one whoHo ilclil wuH prior by grunting a receiver, uiul re- 
 Mtmining the purly in |>o»ncwion under the wtjuestrulion, 
 Croui cullcctin'4 ihi- rt-nt* and profits of tin- rectory, refer- 
 riii|: It ti» thr Mu.Hter to take un account of the incuiu- 
 brtuiceii, and to ancertain their prioritic* (n). 
 
 Ill an earhrr cani- when* thrn- were »evcnil rrrditcrs, and 
 one had pnKuiretl He(|iici.tr.itioii Infore thi- othern, a mmilar 
 course had been pursuid ; L«)rd Uldon at first refu*cd to 
 intcrferr. on thr •ground that it was not made (iiit that 
 the drfiiidaiil's M'f|ur>^tralion was fraudulent, and that the 
 jihiintiffchd not make out, iiup|>o8ing the defcndunt'i* claim 
 to 1m» bail, that he the plaiutill' was entithd to the |)<»shik. 
 nion, but couhl not avail himself of it at law. The re- 
 cciver and injunction were aflerwnrdH granted until further 
 order, but oii what trround it <lo<'s not apjM-ar by the rc- 
 jiort (o). 
 
 Whore sequcstrntion has Wen issuetl i»y the 0)urt of 
 (vhanccrv for non-i>erformance of a decree in a morttrij' 
 
 suit, and the defendants refuse to deliver up the ni ••' 1 
 
 pnniises, an injunction will be granted to cause j > 
 
 to be delivered (/)). 
 
 Aiul where sequestrators have entered and sequestered 
 and are forcibly disj)ossessc(l, the j)arty so dispossessing 
 them will be committed, and an injunction to restore pos- 
 session awarded (y). 
 
 To give sequestratoi-s possession the course is, that after 
 the sequestration, an injunction is granted, and then a writ 
 of assistance (r). 
 
 The course to obtain |)osscssion of land in pursuance of 
 a decree of the Court of Chancery is to obtain an order, 
 
 («) White V. Um/i<>/» of ViUrbo- Jarm. Bylh. iH-i, i.. ;■ . 
 
 rough, 3 Swans. 109. The incum- (.') 3 Swam. 112. n. (fc). 
 
 braDccs in this case were created be- ( /») Hird v. LittUhaUt, 3 .Swaoit. 
 
 iween 1803 and 1817, Uic perio«l 300. 
 
 during which the 13 Eliz. c 20, was (y) Pelhmmy. Ducheuof SewcoiUe, 
 
 not in force. It is clear that now be- 3 SwansL 289. 
 
 ncfices could not be so chargetl. .S^ (»■) /'•>'' v. I.iiilrhaif. 3 Swao«t. 
 
 J .Tarm. Hjlh. 249 n., noiis , and 8 299.
 
 CHAP. XII.] OF A SPECIAL NATURE. 33.3 
 
 vvliich is an order of course, that an injunction should 
 issue, enjoining the defendant to dehver up possession; 
 and on that is grounded a writ of assistance, to be executed 
 by the sheriff in case of disobedience (i). 
 
 In the case last referred to a motion was made after the 
 making of the order, for an injunction to stay the proceed- 
 ings under the decree until an appeal should be presented to 
 the House of Lords. Lord Eldon, on the particular cir- 
 cumstances of the case, stayed the proceedings, but said it 
 had been settled by the House of Lords that an appeal to 
 that House from a Court of equity does not stay execution 
 of the decree {u), unless by special order of the Court of 
 equity, or of the House of Lords ; but in such cases it 
 seems better that the special application should be made 
 to the House of Lords {x). And in general it seems that 
 an application to stay proceedings under a decree of a 
 Court of equity from which an appeal is pending, should 
 be made to the Court of appellate jurisdiction (?/). 
 
 6. An injunction would be granted to restrain a banker 
 from bringing an action against his customer on a foreign 
 judgment, if it should appear that there have been a great 
 many dealings and transactions, and no account delivered 
 except an account by which the customer appeared to be 
 the creditor of the banker for a particular sum (z). 
 
 7. Equity has, under circumstances, exercised jurisdic- 
 tion to stay the sailing of ships. Thus a part-owner of an 
 unascertained share of a ship has obtained an injunction to 
 stay the sailing of the ship till his share could be ascer- 
 tained, and the proper security settled (a). But it has 
 been refused when the apphcation was not made till the 
 
 (f) See Hiiguenin v. Baseley, 15 Macnaghten v. Boehm, 1 Jac. & W. 
 
 Ves. 180. 50. 
 
 (m) See order of the 12tli Aug. (s) Bowles v. On-, 1 You, & ColL 
 
 1807, 15 Ves. 184. 464. 
 
 (.t) Per Lord Eldon. 15 Ves. 182. (u) Haly v. Goodson, 2 Mer. 77. 
 
 {y) Per Sir T. Pluraer, M. R. (b) Christie \. Craig, ibid. i37.
 
 334 8TATIK0 wnOKCPrL ACTS [PAKT II. 
 
 day before the «lii[» wiw to Mill (b), and no sufficient reation 
 gi?cn for the dt-luy. And it wu« early laid, llml nn in- 
 janction to rcitmin the sailinj^ of a »hip cannot be granteti 
 alttr u|))M;truncr, without notice (</). 
 
 The Court hurt, liowevtr, refiiw-d to grant an injunction 
 in a ca»e where the plaintiffn were tlic Eaul India < 
 jmny, «u>d •'oufht to rcHtrain tin- dcfendantji from *>:■. 
 shipH in infriii',;! inriit, im it tvan alleged, of the IjihI I 
 Com|Miny'« charter, although a Tcrdict had l>een f«.nnd 
 aj^uii'it thr diriiuluiit^ for i>n«t tnidin-;, and : ' ' ' •'- v 
 had |iut in an insulKcicnl niiswir t.i the hill < i .• ' 
 
 tin- |»lainlifr«(if) It is very <|ue«lionahle whether ut thiH 
 day such a decision would l>e made. 
 
 In a case before I^nl KIdon, the plaintiff moved for an 
 injunction to restrain the defendants from diupatehing gootls 
 then on board their vessel, which was on the point of sail- 
 inij; and for an injunction against the Dock ("ompany, in 
 whose docks the vcssrl was lying, to restrain them from 
 pennitting the gootis to be removed from the docks. His 
 Lordship refused the injunction on the double ground that 
 the Court has not juristliction to stop goods in transitu, 
 and the danger of interfering in such a case. " If," he 
 said, " a ship contains a cargo belonging to twenty-four 
 persons, and A. B. has a right to j)ait of it, am I, because 
 lie may hiiii'^r an action of trover for the conversion of his 
 property, to stop the sliip from sailinir with the goods of 
 the other twenty-three .' C(»nsider the danger of inter- 
 ferino-. If instead of this valuable cargo, there was only a 
 single hogshead, the eflect would be the same." On this 
 case It may be remarked, that an injunction granleti on the 
 terms of the prayer of the bill, would not necessarily have 
 restrained the sailing of the ship at the time fixed for its 
 sailing : for the injunction prayed wab merely to restrain 
 the removal of the goods ; and if according to the case put 
 bv the Court, there had been but a single hogshead on 
 
 (d) 2 Ves. sen. 112. 
 
 (/) £<is( India Ci^mpiinxi v. Intcrhj^^n, 2 Cht Ca. 165.
 
 CHAP. XII.] OF A SPECIAL NATURE. 335 
 
 board the ship, the injunction might have been carried into 
 effect without delaying tlie ship for a single hour. The 
 real ground for Lord Eldon's decision appears to be the 
 want of jurisdiction (/). 
 
 8. Equity interferes also by injunction under circum- 
 stances to restrain improper transfers of stock ; the relief in 
 this class of cases does not seem to depend so much on any 
 special jurisdiction, as on the general jurisdiction of the 
 Court to restrain acts against good conscience and inju- 
 rious to property. Thus in a late case, the wife of a bank- 
 rupt having an absolute po^ver of appointment over stock 
 standing in the names of trustees in this country, died in 
 France, having disposed by will of these trust funds to 
 her sister, who resided in France, and became her adminis- 
 tratrix. The bankrupt before being made so, had remitted 
 the proceeds of the sale of his furniture and other monies 
 to France, and procured them to be invested there in his 
 wife's name ; all of which had come to the hands of the 
 administratrix, who continued to reside in France, so that 
 the property of the bankrupt come into her possession in 
 France could not be recovered. Under these circumstances 
 the assignees of the bankrupt obtained an injunction to 
 restrain the transfer to her of the stock in the English 
 funds, on the ground that as that stock (under the terms 
 upon which she took it) was her property, and subject to the 
 payment of all debts to which she was liable ; and as the 
 Court, for the purpose of the motion, thought the French 
 stock was prima facie to be considered as the bankrupt's 
 property, the assignees were entitled to prevent the removal 
 out of the jurisdiction of the property out of which the ad- 
 ministratrix would be liable to pay the debts of her testa- 
 trix {g). 
 
 9. The Bank of England are not bound to look beyond 
 the legal title to stock. If they were to be called upon to 
 
 (/) Goodhart v. Lowe, 2 Jac. & W. 349. (g) Stead v. Clay, 4 Russ. 550.
 
 336 «TAYI!«G WI(o!(UKtL ACTS [PAKT II. 
 
 tuke iiutice uf tiie trutitn ot u will ul aW, tlicy luubt take 
 iioticc of them Uirou^liout ; Uicro ui no gruuud on wliicli 
 thvy can take notict* tu u certain |Kiint uiid nu fiirtlier. 
 They caiinut thtrvfurt' rc«(rain un r\cctilur, ulicrc tliere in 
 no ii|icci(ic bequest uf fttuck, fruiu Mrlliiig and ttunHfcrriug 
 it into tiiH oun nuiue(i). 
 
 And uhrri' it u doubtful whether a bequest of stock is 
 specific, so as to %est it in the Itf^aU'CM, ur uhethcr it vests 
 iu llio executor, and the Bunk rcfuMrH tu truni»rcr it intu 
 the niinie of the executor, willumt {iruuf of the* deaths of 
 tlie Ic;;ulecH ; the exccutur will not Ix: rcHtniincd fruin bring- 
 ing an iiction ugaiiiht the Hunk. I'or if the executor can- 
 not luaintnin an action at law, the Bank dcK'S not want 
 the pruleiliuii of equity ; und if the executor can iiiuintAiii 
 an action, then the true cont»lruclion of the act of jmrlia- 
 nieiit (k) authorises or docs not {ireveiit the action, und 
 then lluie is no etpiity (/). 
 
 In liills tiled for un injunction to Mtny the transfer of 
 stock standing in the bookn of the Itnnk of Kni;land, oiid 
 to restrain the Bank from |>crniiltiiig the trumtfer, the 
 Bank may Im> mude parties (m) ; but it in not necessary to 
 make them so(/i); and the bill may Ik* filed a;^'aniHt the 
 parlies in v> hose names the stock st^inds ulone, und the 
 motion must be made upon notice to the party, unleAX, in 
 consec|Uoncc of special circumstances, notice cannot Ite 
 given, and then the application must be on aflidavit, veri- 
 fying that such urgency and necessity exist (o). To move 
 as a matter of course without notice or aflidavit is irre- 
 gular. And it seems, by u dictum of Sir John Leach 
 in Julrithjc v. E<liidge{ji), that if the Bank has been 
 unnecessarily made a |)arty, the bill will l>e dismissed as 
 
 (i) Brtfifc of England v. Partoni, (m) TempU T. Bank of Ettglamd, 
 
 6 Vcs. 665. 6 Vc*. 769. 
 
 {k) \ Geo. I. Stat. 2, c. l!», s. (n) 39 i 40 Geo. .J, c. 36. 
 
 11,12. (o) Hammond r. MaundrtU, 6 \'ti. 
 
 (0 Rank of England v. Lutin, 15 7G9. 
 
 Ves. 569. ( ,.) 3 Mad. 386.
 
 CHAP. XII.] OF A SPECIAL NATURE. 337 
 
 against it, with costs. This case is rel'eired to as ol' au- 
 thority in a late very able work {q), and I am not aware of 
 any decision overruling it. 
 
 Where a party files a bill, praying, amongst other 
 things, an injunction to restrain the Bank from transferring 
 stock, and the answer denies the plaintiff's title, the Court 
 will not, on motion by the defendant, decide the point by 
 ordering the Bank to permit the transfer ; but if the Bank 
 is served with a subpoena, and notice of the bill and its 
 object, that operates as an injunction against the Bank; 
 and if the plaintiff does not apply for an injunction, the 
 proper course it seems for the defendant, is to move that 
 the Bank shall be at liberty to permit the defendants to 
 transfer the stock, and the Court will make an order per- 
 mitting such transfer on a given day, unless, in the mean 
 time, an injunction shall be granted (r). 
 
 10. Anciently there was a practice of granting injunctions 
 to quiet the possession until the hearing ; that is, to prevent 
 the party who was out of possession, from forcibly dis- 
 turbing the possession of the other, pending a suit to deter- 
 mine the right [s) ; or, if forcible possession had been 
 taken, to avoid it {i). It was necessary to warrant an 
 injunction of this nature, that the party asking the relief 
 should have been, at the time of the bill being filed, and 
 for three years before, in peaceable possession. 
 
 This practice has entirely fallen into disuse in EnoJand, 
 and there has been no instance of such an injunction since 
 a case of Hughes v. Trustees of Morden College, decided 
 in 1748 {ii). In that case Lord Hardwicke granted an 
 injunction to restrain the commissioners of a turnpike-roati, 
 who had agreed with the trustees of Morden College for 
 liberty to dig for gravel on land which was on lease for 
 
 (5) 1 Daniell Chan. Prac. 200. Lapcote v. Newport, ibid. 47. 
 (?•) Ross V. Shearer, 5 Blad. 458 ; (t) Hawkes v, Tinnit, Gary, 30* 
 
 Birch V. Corbyn, 1 Br. C. C. 571. («) 1 Ves. sen, 187. 
 
 (s) Dowche V. Perrot, Gary, 45 ;
 
 $38 liTAVIXG WBOXaPUL ACTS [paDT II. 
 
 iwiMly-one ycar«»Rn(l uned a« garden ^jruuaJ, fnun forcibly 
 tiilt-tiii^ nncl tliui^injj up the vc{»rUljlci» to obtttiu gravel. 
 Ilu l.*>r<l»lii|i (naleil it a* a ca»c of trr*|Mti>«. uiid r\|m-4Mly 
 Mid, " that indeed there wa« a reoiody at law, but tliut 
 would be only fur tlic wrung <lonc, and not equal to llio 
 mnody in eiiuity.** 
 
 It i» unuocoMary to pursue this aubjccl any furtlu r, u» 
 it it extrrnteiy iiu|iri>bublc tliut the |>ructjce of 
 ii^unclionn lo «|uict |xMM-«»iun, ttu the ec|uity • 
 boen in poaaeaaion for three ycara, aliould be reviTcd, ao 
 long UH the C«jurt continued to cxerciw? tin- i ' ' f 
 
 gmntiiig injiiiu-tioiiH agaiiiht trrt»|>tutH in the na'' 
 It if indetnl highly probable that the adoption of the latlcr 
 prwrtlcf was the rauni- of tin? - 
 fi)r iiulc'iH-ndcnlly of the circuiBht, 
 
 trcKpaaa in the nature of %va8te answers ull the fiurpoaea 
 of tho iiijunctioit to fpiii-t ponH«'s»ion, it may Ik: ' 
 
 that the cHtabliiihmcut o( ihc foriu' i i(i:u-tlcr 
 coeval with the ccflJiation of the lutU i 
 
 The Icanu-d reader who wIaIich tu m c utoic ou lliib bub- 
 j...-t, ;, ,. r,.,r. ,1 .,, T ...1 H, ,,i. v'. T....ti,..(x). 
 
 1 1. W hill ail rjL-ctmcut if» bruuglit against a tenant, the 
 land Ion! may make himself defendant to the action, and 
 then he mnv at once file his bill and gel either an answer, 
 or in default of a|)pearance or answer, the common injunc- 
 tion ; or he may fdc a bill for an injunction l>eforc he has 
 been admitted to defend the action, making the tenant u 
 party (y). But he cannot let the action go on for judg- 
 ment against the tenant, and then come into equity for an 
 injunction to stay execution (z). 
 
 \\ hen parties accept a lease, they cannot, because an 
 ejeclmcnt is brought against them by other partief*, obtain 
 
 (u) Hughtt V. Mifrdcn Colltg* wu (y) Lai»U\i t. Waldfn, 3 SwaosL 
 
 decidctlinl748 i Flamatig't can m\x*l 142; Mottt v. Ijtteu, Jac.502; Po*U 
 
 have occurrtd between 1778 and 1783. v. Marth, 8 Sim. 628. 
 
 (x)Pagc332. f- "•-■'. Jac. 502.
 
 CHAP. XII.] OF A SPECIAL NATURE. 339 
 
 an injunction to stay their landlord from distraining for 
 rent till the trial of the ejectment ; for they cannot be al- 
 lowed by such means to bring the landlord's title into dis- 
 repute (a), even though the landlord should have demised 
 premises which he had no right to let. But where A. 
 granted a lease of freehold and copyhold, being only te- 
 nant for life of the freehold, but the two were intermixed, 
 the representatives of the tenant for life were restrained 
 from taking out execution on a verdict found for them in 
 ejectment, until the hearing, as the ejectment would not 
 inform the Court on the material point, viz. the locality of 
 the lands (5). 
 
 12. Equity will sometimes interfere to stay a sale, 
 although it may turn out ultimately that it would not be im- 
 proper. As for instance, where there has been a decree for 
 the plaintiff with directions for a sale, and the decree is ap- 
 pealed from, the sale will under special circumstances, and 
 on the terms of the defendant giving ample security for the 
 value of the property, be stayed until the hearing of the ap- 
 peal ; or where a vendor has power to sell, but it is ques- 
 tionable whether the sale is made properly in pursuance of 
 the power. Thus in a case where Commissioners under an 
 inclosure act had powers to sell, a sale by them was stayed 
 on an ex parte motion before appearance, the case made by 
 the bill being, that the Commissioners were about to sell a 
 pond, part of the common lands, to a person not entitled 
 under the act to be a purchaser, and at a price far below 
 the real value of the property; and that the pond was of 
 special value to the inhabitants having right of common, for 
 the purpose of supplying them with pure water (c). It 
 may be observed here that the bill was by one proprietor 
 on behalf of himself and all others. 
 
 So where the thing about to be sold is in the nature of a 
 
 (rt) Homan v. Moore, 4 Price, 5. (c) Haioes v. James, 1 Wils. 2. 
 
 (b) Hardcastk v. Shaft, 1 Anst. 184. 
 
 z2
 
 340 tTAViwQ waoHorvL acts [paut il. 
 
 ' <• t'ltatlcl, a» wlicrt* Uir tlefciidaiit wai about to sell 
 ui.iiiiKaU* to wliuh tlif pluintifl' claimed title, he wu" rr- 
 Ktruiiictl by an rx jmrta iiijuiictiuiKc/). And wUcrc , 
 mi*chief may be the coiiaequaoor of tbeaalr, and none will 
 t'diiu rrslruinini; il, aii Mhrre a bankrupt »liowr<! *' / 
 r |»rn»on \tuN wdluig tu |Niy ull Iuk dt-biji und • 
 and preyed by the bdl for a kUperMKlca*, a aale advertiiM<l 
 by ihr ii«iiit;ne«-ii for the folluHin^ day uuARtaycd ( " ' 
 urder, the |>elitiuncr underlaknig not l<> rmtove ■ 
 o( the pro|KTty in the mean time(«). And Lortl 1 
 luiH hud It th»wn, thut wlirre thcreurc v« liniuiliuii*- 
 
 iicndinu u Hint, the Court will reHtnnn tic / 
 
 So where the defendant had entered into a parol n 
 nieiit to ••xchiin^e eHtuteH widi the |>t:iiMlitr, ■■. 
 by luj* bill, Hup[K)rted by a(h<luvit, ullc^cd |«ii ^ 
 on hia side, and chur|red that the defendant hud adver* 
 lisetl his entote for wilr, un iiij unction vv 
 uiiMwer, re.Htruining the nule, ulthoui;h '! , 
 up|K*ur at the sale and ^ive notice of hift clan. 
 
 Hut trustees for snic will nc»t Ix' r- 
 
 of the ejitiilc froui selliii;^, merely - _ .: 
 
 they are about to sell prematurely, where no cohc in niude 
 of irrcjMirable injury; for if the trustees wll in such manner 
 as tu commit a breach of trust, they will be liable(/j;. 
 
 So where a special authority to jjell has been given to a 
 person, even if it is doubtful whether such power h not rc« 
 vokctl at law, yet if it is not revoked in equity, on injunc- 
 tion will not be gnmted. In Ilarconrt v. lUtmsbottom > i), 
 the plaintitr being indebted to the defendant, a judgment 
 had been obtained against him for upwards of i?0,OUO/,, 
 and other proceedings took place establishing the fact that 
 there was a large balance due from him; on which he 
 agreed to a reference to arbitration, and in pursuance of 
 
 (d) TfiiNini V. Proui, Dick. 387. {^) I'urlii v. Mar^»i.U»f Drndamf- 
 
 (») Lx ytirlf Fijitt, 1 C;iyn & Jac. ham. 3 Vc*. & H. 168. 
 12^. (fc) IWhtl r. Voxilfr, 2 A*»«. 649. 
 
 (/) 4 Uow, 44". (4) 1 Jac. & W. 605.
 
 CHAP. XII.] OF A SPECIAL NATURE. 34'1 
 
 the agreement executed a conveyance of his estate, con- 
 taining a power of sale within two months after the award. 
 After the arbitrator had acted, the plaintiff taking part 
 in the proceedings, he revoked the agreement to refer, and 
 the appointees and nominees under it. The arbitrator after 
 that made his award, and the plaintiff then came for an in- 
 junction to restrain a sale under the power. It was con- 
 tended that he could revoke the agreement to refer, at any 
 time before the award, and also that the arbitrator was not 
 properly chosen. But the Lord Chancellor said, however 
 that might be, the parties having acted under him had ad- 
 mitted that he was qualified. And whether the authority 
 to the arbitrator was revoked or not at law, it was not re- 
 voked under the circumstances in equity, so as to call for 
 the interposition of the Court to say the award was not 
 good in equity. 
 
 Neither will an injunction be granted to restrain a volun- 
 tary settlor from selling (i). For although the settlor can- 
 not himself maintain a bill for specific performance of a 
 contract to sell(^), yet as a voluntary settlement is void as 
 against a purchaser for valuable consideration, though with 
 notice (Z), equity will enforce the contract for purchase 
 against the settlor (?«). In Pulvertoft v. Pulvertoft{n), a 
 distinction was attempted to be taken between the case of 
 an actual purchase made, and the case where the settlor 
 has not actually sold, but is about to sell ; and it was con- 
 tended that equity, though it will not undo the act done, 
 ought to interfere to prevent a man who had made a volun- 
 tary settlement as a provision for his wife and children, 
 from defeating it by a sale. But the Court, on the autho- 
 rity of Evelyn v. Templar{o), as well as on the general 
 doctrine, dissolved the injunction which had been granted, 
 expressing regret that it had ever been granted. 
 
 (i) Pulvertoft v, Pulvertoft, 18 159. 
 
 A^'es. 84. (to) Ibid, 
 
 {k) Smith V. Garland, 2 Men 123. (n) 18 Ves. 84. 
 
 (0 See 2 Sug. Vend. & P. 9th edit, (o) 2 Bro. C. C. 148.
 
 342 tTAVIStO WBOMOrUL ACTt [part II. 
 
 An injunrtioi) vn»* (punttHl in un curly aiul m 
 cSMr tu rolmui n hu»l>Aiid (rum M*llin^ hii» \%r : i, 
 
 where Uwy were divorcod a wuam tt tkoro, and the wire 
 hml tthnionv for her iiu|iport(|>). Ii m un|Ki*i»iljU- \xi »ec 
 oo wImI |innci)ilo (hi« dccujon cuultl Lie »u|>|M>tlc<l, fk» 
 ibere it no ruir beltrr eiiUhh«))ed Uuin that a hutljaud 
 may "eil hi* wife'* trnu. 
 
 If a mort^ni(;rc hu» in himtelf a power of Muic, he mtiII 
 not be n>«(niini'<l frum prococdinf^ to a tale bocauM hf hait 
 not given duo nuUce to liic ntort^f^or. Tor the mortga- 
 gor can protect hitt own »ilea'»l by giving noti- ■ •■• 'Im* 
 purrhuN^-r, that he hon filed n bill to iintieiirh tl 
 Hut if tiic |)Ower of sale is in a truit^e, tlic Court wiil rn- 
 join him, l>ccnuKe it in hi« duty to attend criuully to the iii- 
 tore.Ht of butli hiH cetttuis (juc tniHt, and to uppnzo both of 
 the intended 8alc(r). 
 
 Whrrt- n judicial sale of a raortffai:< <i estate hat !>«■< n 
 eHected umltr the j»r«K'o»H and judi^inciit of a Coloiual 
 Court having competent jiirisdicUon, and no case of fraud 
 made out, etjuitv ha»* no jun»diction to interfere by injunc- 
 tion («). 
 
 An equitable mortgage of copyholds may be created by 
 a «lc|K)Hit of copies of the Court rolls (^). And where a 
 party made such an equitable mortguge, and afterwards 
 made a legal mortirage of the same premises, the second 
 mortgngco havujg no specific notice of the equitable roort- 
 gai;e, but linvnig notice of the fact that the mortgagor was 
 indebted, and had given Rorae tjccurily to the first mort- 
 gagee, an injunction till the hearing was Hustaiued u_ 
 the mortgagor and scct>nd inortixiu;t*e, who had soU. ... 
 premi.xcs, to restrain thctn from deinandintr or rcciving 
 tlic purchase money, or conveying the premi 
 
 ] \. A pcTj)ctual injunction is in effect a decree; it is the 
 
 (p) y«ii<m.9 Mod. 43. (l) LxfaruWmnm,\9Vti.Wl, 
 
 (9) .4»i*».6 Mad. 10. ^'/.il^ ' ' ', ,, 1 Y.& C«l!.303. 
 
 (r) Ihid. («i . x.Jctiiam, 1 Y. At 
 
 (1) ia.i*T.//a//, 12Vci. 321. Coll. 3';'3.
 
 CHAP. XII.] OF A SPECIAL NATURE. 343 
 
 ultimate object of, and is gran table in many suits, such as 
 suits for restraining the infringement of copyright, of pa- 
 tent rights, and the like ; but in such cases it is rarely ap- 
 plied for, because those suits rarely go on to a hearing; and 
 the ordinary injunction till further order being sustained, 
 usually answers the purpose of sufficient protection for the 
 plaintiff. 
 
 The perpetual injunction is in fact seldom resorted to, 
 except for the purpose of putting an end to vexatious liti- 
 gation in cases in which without it, it would be open to 
 the defendant to renew litigation after the case has re- 
 ceived that sort of repeated or full decision, that entitles 
 the plaintiff to be protected against further trials of the 
 right. Thus if a trust estate be devised to be sold, and on 
 a bill brought against the trustees to sell, the heir contests 
 the will, after two trials the Court will grant a perpetual 
 injunction. So where there have been two ejectments 
 to try a title under an entail, and verdicts in favour of the 
 defendant at law, and then two trials at bar, and verdict for 
 the plaintiff; or where there have been several ejectments, 
 and in all, verdicts for one, a perpetual injunction will be 
 granted (?/). 
 
 Again, where there has been a verdict in favour of a 
 will, on an issue of devls. vel non, then a decree in the 
 cause in Chancery establishing the trusts of the will, and 
 they have under the decree been carried into effect ; an 
 ejectment by the devisee of the heir at law will be re- 
 strained by perpetual injunction (0). 
 
 But a perpetual injunction will not be granted except 
 after some repeated or otherwise conclusive decision of the 
 right. In a case before Lord Keeper North, his Lord- 
 ship said that the inheritance ought not to he bound on a 
 decree where there has been but one trial (a). And Lord 
 Hardwicke has laid it down that perpetual injunctions are 
 
 {y) See Leighton v. Leighton, 1 (a) Fitton \. Macclesfield, I Yem. 
 
 P. W. 671, and the cases there cited. 293 ; and see 2 Ves. sen. 553. 
 (?) Lowe V. Joliffe, Dick. 388.
 
 344 UTAYIKO WBOJtUI'lL ACT*, A.O. [PART II. 
 
 never {jTant«l In mitraiii i-jeotniciiU until JiHer many ti 
 to pr(-\riit vciuliuu ttitsuig frvui the iiiclhod uf lr\iut: i 
 by rjectiuenl (&). 
 
 A hill by a loril of n manor to mtabli«ib bin mtrc l< -ul 
 
 title anil fur a |jer]Mrluul injunction cannut be «UKtuiii<ti 
 
 whrre I here i« no tucb j;roun<l n« to |>rrvciil ve»«tiouii lili- 
 
 gntiun, iin«l nothing to prcvcDt hi* trying tlic title at 
 
 uwic). 
 
 It iterms nmrcely nece^iMiry to point out, tlmi where a 
 |jcrpetuai injunction huA been i^ruiitrd, and the pluiiitin' 
 the*, it lit n«)t neei-^Kar)' or |iro|M'r to revive it for the pur- 
 (XMte of KUHlainiii^; thi- injunction. For if it were to, a 
 |)er|>etual injunction woiilil l>e un order for a {M>q>eluttl 
 liuit ; and iHHiden, the uftual order on abatement of a kui(, 
 that the |ilaiiititr may revive or the injunction Ik; di)tMj|vf-<l, 
 hhowH that i*n abntenicnt, the injunction i» not ipsofarto 
 pone(f/). 
 
 And when a defendant in in a condition to diKmiiiH tlie 
 bill for want of prosecution, the fact of nn injunction 
 having brcii gmntcd tiiitil answer, and not d " .will 
 
 not render the order to dismiss irregular. 1 •,■. < rr, 
 
 that would Ik* to treat the injunction a« |)er{Ktual, and the 
 Court never j^rants a jKTpetual injunction till the hear- 
 ing (e). 
 
 (b) Ridg. 191. (d) Atketr r. Ti-w,>^;u. Uck. 471. 
 
 (<■) nV//.v V. Dukt cl UutUuH, 5 (r) Dcf r. Snee, 3 Vc>. tt Be*. 
 
 Pro. r.C. 39. 170.
 
 OF THE PRACTICE, &.C. 
 
 345 
 
 PART III. 
 
 OF THE PRACTICE IN MATTERS OF INJUNCTION. 
 
 CHAPTER I. 
 
 OF THE MODE OF OBTAINING INJUNCTIONS. 
 
 Section I. 
 As to Injunctions to stay Proceedings at Law, 
 
 Injunctions to stay Proceedings at 
 Law, not granted 7intil Bill 
 filed. 
 
 Nor against Person not a Party. 
 
 Injunction must be prayed by the 
 Bill. 
 
 Of Service of Subjjcena to ap- 
 pear. 
 
 How common Injunction obtained. 
 
 Common Injunction obtainable any 
 Day in or out of Term. 
 
 As to Right to demur after an 
 Tnjunctio)i has been obtained. 
 
 Effect when the Bill is rej'erred for 
 Impertinence. 
 
 When referred for Scandal, 
 
 Where regular and where not, to 
 obtain an Injunction after Excep- 
 tions to the Answer. 
 
 Injunctions against Actions be- 
 tween Co-defendants. 
 
 Injunctions not granted before De- 
 fault. 
 
 13. Exceptions to the Rule. 
 
 14. Chancery Rules of \ 833, how af- 
 
 fected by Rules of Common Law 
 Pleading of \ii34. 
 
 15. Of Special Injunctions to restrain 
 
 Actions, uhere one of the Plain- 
 tiffs at Law is merely nominal. 
 
 16. Right of Surety to restrain Ac- 
 
 tion against him, on paying Mo- 
 ney itito Court. 
 
 17. Effect of Demurrer on an Injunc- 
 
 tion, 
 
 18. As to granting Injunctions after 
 
 Verdict at Law, when the Plain- 
 tiff in Equity might have de* 
 J'ended himself at Law. 
 
 19. Common Injunction and Order to 
 
 extend it to stay Trial, 7iot ob- 
 tainable on one Motio7i. 
 
 20. When Sheriff restrained from exe- 
 
 cuting Writ of Execution. 
 
 21. Where Bail restrained.
 
 346 Of TBB PBAOncB la [part mi. 
 
 thU. M. l»/MMflM lill tk» llmrimg dif 
 
 I. An injunclion to ntny prorcfding* at law will not lie 
 gmnted in miicrnl until u l»ill lin« Ikhmi filixl(«) Ix>rd 
 Ilrnli'V, HI hiH wurk on Injunctions, mcnliouK noiuc old 
 coHcn in which u contrury praclico htut been ulluwetl, but 
 ho concludcii by oljwnin}^ thut ihcy arc prccwIenlH wljirh 
 would ni>t now Ik- followed (A). And the practice i« firmly 
 Kcltled as above stated, except in certain cases, which will 
 be presently dincussed. 
 
 2. Generally also an injunction cannot be granted 
 st tt jxTson who is not a parlv to the huit. At» where 
 
 1 . •nunon mjunclion was obtained by the acceptor of a 
 bill against the holder, tlio holder then returned tlic bill to 
 his indor^ier, who comnu'nreil a frcnh action. An injunc- 
 tion was refusetl against this second plaintiff, as he woii not 
 in the cause, nor any injunction prayed airainst him (c). 
 
 3. It follows from the very nature of the common injunc- 
 tion, that it con never bo obtained, except where a bill has 
 been filed (^/). Aiui the bill must expressly pray an in- 
 junclion (/•), and that as well in the prayer of process as 
 in tho prayer for relief (/). But where a bill prayed for 
 an injunction in the prayer for relief, but not in the pniycr 
 of process, and was aftenvards amended by adding the 
 
 (a) Bcim. Ord. 12, 36, 214; 4 621; lec al»o 7 Ve*. 266. 
 
 Inst. 92; I Vcrn. 1.56; I Smith'* (d) Seo the definition of the com> 
 
 Tract. 58(5. mon injunclion, InUoduction.anf*. 
 
 (6) Wen on Injunc. 45. (<) Samryr. Dy#r, Amb. 70. 
 
 (c) Davu>n v. Princqu, 2 Anst. (/) Wood ». Bt^idtU, 3 Sim. 273.
 
 CHAP. I.] MATTERS OF INJUNCTION. 347 
 
 prayer for an injunction in the prayer of process, it was 
 held that that was not such an amendment as would make 
 it necessary to wait for default in answering the amended 
 bill, before a motion could be made for an injunction. 
 But the motion was allowed to be made forthwith on the 
 merits confessed in the original answer {g). 
 
 It must be remembered that it is a general rule that 
 upon an original bill, the plaintiff cannot have the common 
 injunction, until some default by the defendant, either by 
 not appearing or not answering, the time in either instance 
 having expired {h). 
 
 4. Subpoena to appear is generally to be served in in- 
 junction suits, in the same manner as in other suits. 
 There are, however, a few points of practice on this head 
 relating more particularly to injunctions, which deserve 
 notice. For instance, although in general the subpoena to 
 appear must be personally served, yet it was early laid 
 down that where the defendant is abroad, and an injunction 
 bill has been filed, service of the subpoena on the defend- 
 ant's attorney will be good service ; but an affidavit of the 
 truth of the equity of the bill must accompany the motion 
 for such substituted service (i). In a later case, indeed, it 
 was held that the affidavit of merits need not accompany 
 the motion for substitution of service, and that it is suffi- 
 cient if it accompany the motion for the injunction (k). 
 But this case has been since overruled, and the prjictice 
 is now well settled to the contrary, in conformity with 
 Delaney v. Wallis (l). But the Court will not go further 
 than thus to order substituted service, and will not grant 
 an injunction until there is default either in appearing or 
 answering. 
 
 (g) Woodv. Beadell, 3 Sim. 273. (k) Burke v. Vickars, 3 Br. C. C. 
 
 (h) 18 Ves. 523. 24. 
 
 (i) Delaney v. Wallis, 3 Br. C. C. (I) Stephens v. Cini, 4 Ves. 359; 
 
 12. Anderson v. Darcy, 18 Ves. 447.
 
 348 OF rne i'i(A( ri« i: i> Tpart m. 
 
 Tlic aflTiilavIt of merits must in i^ciierul bt- !n:ul«' hy 
 the |tliuii(ill hiiuM.'lf. It Mill nut do it inniit' only by 
 hill Rolicitor, uiiIcm lie luu pctvonal kiiuulcdge o( tbc 
 nu'riti (m). 
 
 6. W licit tlir bill liM been filed, oini the tubiMrnu to 
 
 up)H-ar rf^iilarly Hrn"c*<|, tlir pluintil) may obtain tin* 
 coiiiiiiuii injuiictiuM on till* dcfrndaiit iiiakin^ diTault in 
 not ap|M-arin;; ; ur having a|i|)car(Hl, in not aiiHuoring within 
 iho tinien rci*|>cclivcly |irci»cribcd for ihenc htcpK by tin- 
 prartii'p of the Court. 
 
 If tho defendant docH not ap|H.ar within four dayH in a 
 town cause, or within eight dayn in a country cauRo, then 
 on an allidavit of the due service of the hubp«i'iia, the plain- 
 till s clerk in Court seals an attachment for want of ap- 
 pearnncc. i'lir defendant being then in contempt, the 
 plaintifl' may iiniiiediately, without wailing until the attach- 
 ment is executed, mtjve for an injunction as an order of 
 course (n). 
 
 (). The motion for the common injunction, for default of 
 ap|x'aruncc or answer, may n<»w be made on any day on 
 which the Court is silting, whether in *>t out of tenn. 
 I'ormerly the practice was otherwise. It was held that 
 out of term a motion for a common injunction could only 
 be made rcgidarly on seal days (o). This was modified 
 nfterwarils, by holding that the order must be obtained on 
 any day out of term to w liich the seal was adjourned (p). 
 Of late years it has been the general practice to obtain 
 such orders on any day out of as well as in term fy), and 
 this practice has Ijcen finally recognized and ado|)te<l in a 
 very late case, in which the point was expressly raised 
 
 (m) Kenvorthy V. Acciiiior, :i Mad. ((■» hnrrirv v. il .jinn/ry, 1 Keen, 
 
 550. 141. 
 
 (n) S«« 1 Smith's Pracl. 6<>2. (9) See 2 Dan. Prict. 96. 
 (o) Rott^ V. Jarroiti, 6 Mad. 4J.
 
 CHAP. I.] MATTERS OF INJUNCTION. 349 
 
 and determined, as to an injunction for want of appear- 
 ance (5) ; and the distinction formerly taken {t), that, in 
 order to be entitled to the common injunction on a day out 
 of term, to which the seal might have been adjourned, it 
 was requisite to have been in a position to move on the 
 seal day, is not now attended to (m). 
 
 If, in a suit for an injunction to stay proceedings at law, 
 the defendant having appeared, does not plead, answer, or 
 demur within eight days after appearance, the plaintiff is 
 entitled, as of course upon motion, to the common injunc- 
 tion (y). The order recites, as the ground of granting the 
 common injunction, that the defendant has omitted to put 
 in his answer, plea, or demurrer, within the time limited 
 by the Court (x). 
 
 7, But it has been decided on the tenth order (1833) ( ?/\ 
 that although the plaintiff^ may regularly obtain the com- 
 mon injunction, if the defendant do not plead, answer, or 
 demur within eight days after appearance, yet the defend- 
 ant has twelve days to demur alone. And therefore it is 
 not irregular for the defendant to demur within the twelve 
 days, although it should be after an order for an injunction 
 
 (s) Earl of Chesterfield V. Bond, 2 any such bill of revivor, to which an 
 Beav. 263. answer has been required ; and five 
 (t) Roice V. Ja7-rold, 5 Mad. 45. weeks in a town cause, and seven 
 (u) Earl of Chesteifeld v. Bo)id, 2 weeks in a country cause to plead, an- 
 Beav. 263. swer, or demur, not demurring alone, 
 (v) 10 New Ord. 1833. to any amended bill, to which the 
 (.r) 11 New Ord. 1833. plaintiff shall require an answer; but 
 (y) The 10th Order of 1833 is to that twelve days only shall be allowed 
 the effect, " That in every cause a defendant to demur alone to any 
 where an original or supplemental such original, amended, or supple- 
 bill or bill of revivor las been filed mental bill or bill of revivor. And in 
 subsequent to the 25lhday of Novera- every cause for an injunction to stay 
 ber last, or shall hereafter be filed, proceedings at law, if the defendant do 
 the defendant shall, after appearance not plead, answer, or demur to the 
 and without order, be allowed eight plaintiff's bill within eight days after 
 weeks in a town cause, and ten weeks appearance, the plaintiff shall be en- 
 In a country cause, to plead, answer, or titled as of course upon motion to such 
 demur, not demurring alone, to any injunction." 
 such original or supplemeutal bill, or
 
 360 orTOB rRAmrK iw [paut hi. 
 
 ikhI agniiist liim for not havini; piradetl, answered, or 
 1 uithin fi^ht day*; and if the deinumT -^V 'f 
 -I, llif Ijill would be out of (x>urt, and tlv- ; 
 tion wrould fall (o the (;Tound (:). 
 
 lien- it inuy U- olMicnrpd ihnt, an iiijuii< u n t ■ t;iy 
 |)ruirctlut({B ul law m gnuilcil a» o( courM* on a dcinumrr 
 being overruled (a). 
 
 8. Where a bill i* referred for impertinence, the rule 
 aa to obtaining an injunction for want of an«wcr, in nut 
 grncniilv thiil llir rrffnnro f(»r iinivrti' \ •» all pro- 
 
 cec<lin;^'H, but only timl the platntiD' ca • mi tlw in- 
 
 junction an of coume for want of answer ; he is in Ute aanie 
 |x>silion as if the lime for um*\v«i! ' out, and 
 
 muhl ujovc for the injuncti"" "H i' '. . .\ii <»f i ir- 
 
 CUmstXUK'C8(A). 
 
 '.'. Whore a bill iH referred for Rcandal, and in n'{>< '»< ' 
 scandalous, no motion can l>c made on it for an inju 
 until the ncmulalous matter iH expunged ; for till then it u* 
 not known what the bill is, and the defendant caiinot 
 answer it {r>. 
 
 lU. \\ litre a jjlaintiif takes exceptions to th. iuiH^sti 
 and thcv are allowed, but before the Masters rcjxjrt is 
 filed the defendant puts in a further answer, it is irre^rular 
 to obtain the common injunction for want of answer. And 
 it seems that to ujove in such a case is irregular on a 
 double ground : l>t, because of the Master's rejjort not 
 being filed ; and sccundiv, because of the further answer (r/). 
 So where an answer was reported msuHicient, and tlic de- 
 fendant on the same day swore his further answer at the 
 
 (s) PooU \. Manh, 7 Sim. 521. (c) Dattnport v. Darfnpcri,6M»d. 
 
 (a) liathleigh r. ButUr.DiclA^. 25\. 
 
 (6) Stilts, n..-/--.. ) I'.r C. C. (d) n'ynr,- .. r..-;i ,, 2 Sim. .««. 
 
 573; 1 Coi. 104. Siu. 226.
 
 CHAP. I.] MATTERS OF INJUNCTION. 351 
 
 Master's house, and filed it the same evening, it was held 
 irregular to obtain the common injunction for want of 
 answer on the next day. But if the defendant had waited 
 till the Master's office was closed, and had then gone to 
 his house to swear the answer, and had not filed it till 
 next morning, the injunction would have been regular (J). 
 And it must be observed, that insufficiency of an answer is 
 not of itself ground for continuing an injunction ; it must 
 be excepted to, and then, if it be reported insufficient, ap- 
 plication made to revive. 
 
 11. In Kingham v. Maisey(e), an injunction was granted 
 to restrain proceedings at law by one defendant against a 
 co-defendant. And in Edgecumhe v. Carpenter (f), an 
 order was made on the special circumstances of the case(<7), 
 on the application of a defendant, to stay a co-defendant 
 from proceeding with an action. 
 
 12. An injunction to stay proceedings at law cannot, 
 except under very special circumstances {h), be granted 
 before answer, unless the defendant is in contempt (i). 
 
 And this rule is so strong, that in a case where on 
 the eve of the vacation a party was proceeding at law on 
 a judgment obtained on a bond twenty-four years before, 
 a motion to restrain him on bill filed and affidavit was re- 
 fused (;'). In the case referred to, a case oi^ Isaac y.Hum- 
 page(k) was cited as an authority for a contrary practice, 
 but that case has been repeatedly overruled on that as well 
 
 (d) Duckworthv. Hoidcott.SSv/diU. davit, till the defendant prays a dedi- 
 266. mus, or is in contempt. This shows 
 
 (e) 2 Sim. 41. that at that period an injunction to 
 (J ) 1 Beav. 171. stay proceedings at law was not in 
 (g) See ante, p. 37. general to be had before answer, un- 
 (h) Vide post, sects. 13, 14, 15. iggg there was some default in the de- 
 (i) It is stated as the practice in a fendant. 
 
 veryearlycase(j4?io?i.2Freem. 6), that (j) Lane v, Williams, 6 Ves. 798. 
 
 an injunction to stay proceedings at law (k) 1 Ves. jun. 427. 
 
 is never granted on bill filed and affi-
 
 352 OF TllK rRACTUK IX [I'AMT III. 
 
 UA on oilier !►••■'!•-''» stiwl the pruilicf ii> tiriiily i>c*lll««.l u> 
 ubovc Alat«<«l. 
 
 13. The ..,.cn .-1 . X. . J V V ... ; wry numerouji. lu 
 
 ono the nrtumwtuncc* were lhc«c:— » coiilmcl wuj» »ub- 
 HiAtiiig between tuorlgngor and mortgagee for (he jiui 
 by the mortgagee of the mortgu;'ctl |in-mii»eM ; the i..-.. 
 guge money not h.ivmg been |>aul, »ml ihr toiitruct »lill 
 pcrnhng, iJic morlgngcc brought un uctioii (or ihe uui ' 
 m.-iiiv, un«l waM purHuint; procewi of oulJuwry ngruiihi i... 
 iii..ii.;ugoi, who waf» uhruuti, without any prcvioUHcouununi- 
 cation to him or to hiit BoHcitor. The (x>urt gmnlctl a hjm;- 
 ciul injunrtion to rcstniin the phiintiH' at law from pro- 
 ceetliiJf; in Inn action and proccHH of outlawiy, holding thin 
 to be u cu^ within the principle on which the Court has 
 jurisdiction to rchlrain \u> ' at law by ^incial ni- 
 
 junction, where a case is n. <\in\^ that it !•» nnprac- 
 
 ticuble to cibtuin a common injunction in time to Iks of any 
 um; to the plaintitrtm). 
 
 .Si on the ground of irreparable mischief, on r.r parte 
 injunction will l)c granted to retitniin u |>cr(>on from inter- 
 meddling; with a testator's a.ssct.H, and from pr- it 
 law a'^ainst debtors, where he is alleged by the i i\e 
 inipro|)crly obtained probate, and to be insolvent. ( >l 
 course the allegations of the bill must be verified by afli- 
 davit, and there must be also ullidavit of service of 8ub- 
 ptena on the defendant, and the plaintiff will be required 
 to bring into Court the money souirht to be recoveretl at 
 law (m). 
 
 Where some of the defendants arc abroad, ;ui injunction 
 to restrain an action will not be granted Ixfoic ap|>eanincc 
 or default of appearance of such defendants n) ; but it has 
 been held, that if a bill to stay proceedings at law by the 
 
 (0 Scclhcuolcio I Vcs. 431. (n) Mantfieldr.Shatr, 3 M»d. 100. 
 
 (iw) Drummcnd r. Pigou, 2 yiy. U (•) WhiU i. KUttn. 18V». -171. 
 
 K. 168.
 
 CHAP. I.] MATTERS OF INJUNCTION. 353 
 
 attorney of a party abroad, is filed against the principal 
 and attorney, and the attorney answers, an injunction 
 will be granted, on the money being paid into Court, 
 to stay execution by the attorney, until the principal 
 answers (p). 
 
 Where the common injunction had been obtained against 
 A., who answered, but did not move to dissolve, and then 
 the bill was amended, and A. died; some time afterwards 
 the executors of A. proceeded at law against the plaintiffs, 
 who filed a bill of revivor against them, but from the cause 
 being a country cause, it happened that the defendants 
 would be in a condition to obtain judgment, and take out 
 execution upon it before their time for appearing would 
 expire ; and it appeared that the answer of A. contained 
 admissions which would have entitled the plaintiff to an 
 injunction as against A. himself; — on affidavit of these 
 facts, notice of motion having been served on the defend- 
 ants, who did not appear to oppose the motion. Lord Eldon 
 granted an injunction to stay execution {q). 
 
 And so an injunction has been granted on certificate of 
 bill filed and affidavit of merits before answer, to restrain 
 the defendant from taking out execution on the plaintiff's 
 warrant of attorney to confess judgment, where the 
 motion was made during the vacation, and therefore no 
 subpoena returnable till the next term (r) ; the plaintiff 
 undertaking to serve the defendant with immediate notice. 
 But in the Exchequer a motion of a similar nature was 
 refused (s). 
 
 And an injunction will not be granted before answer or 
 default to restrain suing out execution on a judgment ob- 
 tained at law, on the mere ground that the defendant would 
 be entitled to sue out execution before the plaintiff could 
 obtain the common injunction ; it must be shown that the 
 
 (p) Wright V. Ntitt, Dick. 691. ('•) Aunesleyw. Rockes,3MeT. 226. 
 
 (</) Turner v. Wright, 1 Jac. & (*) Naylor v. Christie, 8 Pii. 534. 
 
 W.290. 
 
 A A
 
 364 OFTDB luAiiii-ti tn [PART III. 
 
 I I.'Kitiii lia^ iiaii no opportunity of obUiuiug the cuuiiiiuii 
 
 li.jUUL'llOll(0' 
 
 Thu» wrlicre uiulor a tpcciul juruKlicUuii, av fur iiutuiiu: 
 Uiu tnuU ut the* |{ri>ut »e»»toith of tlif WcUh ruuiilie*, 
 the pg^-ceiliii^H wuiiUl gn on tui nipully to ekccutiuUi thai 
 uiuier l))c circuiujitiutce* of liiu particular case, it would 
 huvo been iiii|MjiMMl>lr tu ubluiii the couiiiioii iiijuiit:tioii ili 
 time to be ot uny um.- to Liur di-reJiduiit ut luw, uii iiijuuc- 
 tiuo to Btuy kuch procoidiiigii ut law wtui gnuiUi-d ex parU 
 Ml uUidavit of iircuuiJilaJice*, whuh, if true, \tould iitukc a 
 cukv lor relief iii equity («), the pluiiitiH in equity giviug 
 jutl;{iueiit in the action, with Mtuy of execution, liie judg* 
 inent tu \h- dealt with at the diiicretiuii of tlic Cuurt of 
 equity. 
 
 Ami in a cai»e lu-fore Sir J. Leach, V. C.(v), where it 
 upficared that under tlie circuuihtunceji it wait mi|>oiM>ible 
 for liic plaintiti in equity to obtain the coimnon injunction 
 bcfoii- the liial of the aeUon, a i>)iiciai utjuiicLion hu* 
 granted. 
 
 1 ). lUit althuugh under cireuin6tiiiice«, the clTcct of the 
 (icneral Hules of I'racliee at Law of 1H.34, on the GcucraJ 
 OiiKis in Chancery of 1.H33, may be U) prevent the plain- 
 till in equity from having sulUcient time to obiaui tlic 
 common injunction, and then to move to extend it to stay 
 tiial ; yet the Court will not on that account merely, grant 
 a special injunction before default to btay trial ; Ijecaubc in 
 the Orders in Chancery of 1K33, the then forthcomiog 
 alteration in the practice of the Courlb of law was contcm- 
 platctl ; and though .some of those order» related to injunc- 
 tions, they did not provide for any alteratiou in Uie practice 
 of Chancery respecting them {x). 
 
 (0 Franklyu v. Thomai, 3 Mcr. (c) Ihndt t. Fiddtt, 2 Sim. 6lSHi. 
 
 226. 370. 
 
 (u) JoHti V. Bauetl, Evou v. Rtid, (<) liaiUji v. WoUh, 7 .Sin. 666. 
 
 •i Uusj. 403,
 
 CHAP. I.] MATTERS OF INJUNCTION. 355 
 
 The learned reader will, on consideration, perceive that 
 these decisions are not inconsistent, as the two cases are 
 clearly distinguishable. In Hinde v. Fiddes, the impos- 
 sibility of the plaintiff's obtaining the common injunction in 
 time to stay trial, arose out of a special and fortuitous com- 
 bination of dates, and there was nothing to induce the 
 Court to conceive that any such effect could have been in 
 the contemplation of those who had laid down the practice. 
 Whereas in Bailey v. Weston, the impossibility was a 
 direct consequence of the General Orders of the Court of 
 Chancery, framed with full knowledge of the rules of the 
 Court of common law ; and therefore it was not to be in- 
 ferred that the Court, in framing its general orders, was 
 unaware of and intended to avoid such consequences as 
 those which occurred in Bailey v. Weston. 
 
 15. In a case where A., the obligor of a bond, moved 
 for a special injunction to restrain B., the obligee, and 
 C. and D., the assignees of the bond, from proceeding in an 
 action brought by C. and D. in the name of B., none of 
 the answers being put in, nor any of the defendants being 
 in default ; it was contended, in support of the motion, that 
 this was a case in which the plaintiff was entitled to ask 
 for a special injunction, because the common injunction 
 restrains only the plaintiff at law, and not those who are 
 suing in his name ; and it was urged that according to the 
 decision in Montague v. Hill{y), the answer of B., the 
 nominal plaintiff' at law, could not be used, and therefore 
 to have' the common injunction for want of an answer, 
 which when obtained could not be used, would be absurd. 
 But the Court refused the motion, and said, all that was 
 decided in Montague v. Hill was, that where the common 
 injunction has issued against the party in whose name the 
 action was brought, and he had jjut in his answer and the 
 
 (y) 4 RusR. 128. 
 A A 2
 
 35fi OF Tlir. PRACTICE IN [PAKTIII. 
 
 assiijnet$ had put in t/ieirs, their uiiswcr ii> to be rcnil, tinil 
 his th«»r»»i;urih'cJ. Hut ihut ullordctJ no fuuniiatioii for tlie 
 |)rii|MjMiioii that a pluiiiliti in c<|uily in cntithcl to move fur 
 a tpcciul iiijuiictJun to restroin proccctiiii^« at law, brfore 
 tfif jnittiin/ III itf atty anncrr (z). Thin licciiiioi) wu* re- 
 i' rit i| ((» iiiut ii|>|iruvttl \}y the l^rd Chaiiccllor iii Thorpe 
 \ lliitfhet{a). 
 
 |)'>. \S here u receiver in a cnuHo liati ubHcondctl and 
 his recognizances were estreated, and an action had been 
 brought a'^iiinut thr surety, nii order was made by consent 
 for u reference to the Master to see what was due from 
 the receiver, and that the hurety mi^ht ]>uy the name by 
 instuhnentJi, und that the |)roceedingH ut law should Ix: 
 htaycil : the surety paying the costs of the motion, and of 
 the subscc{uent |)rocccdings in consccjuence lhereof(6). 
 
 17, \\ hen a bill is filctl for discovery and an injunction 
 against proceedings at law, and the bill is demurred to, the 
 ci^uimon inj miction ought not to be granted |>cnding the 
 denjurrer fr) ; for when the defendant demurs, he infonns 
 the Court that there is no ecjuity in the bill. 'I'hc course is 
 that the Court will order the dcujurrcr to be argued imme- 
 dialely- Hut although in general, whnc an injunction bill 
 is imjirded by a demurrer, the Court will advance the de- 
 murrer where pressing reasons are bIiowu for doing 8o(rf), 
 because until the demurrer is disj)osed of, the injunction 
 cannot be obtained; yet it will not be done if there is great 
 delay unaccounted for : as for instance, where ihfc bill was 
 filed in respect of the assets of a testator three years after his 
 (loath, and no reason given why it was not tiled sooner; 
 although in this case it was sworn that there was a con- 
 
 (s) lAird Portarliiigton v. Graham, (c) Coutint v. Smith, 1 1 \'es. 164. 
 
 5 Sim. 416. (d) Jonet v. Tayh^r, 2 .Mad. 181 ; 
 
 («) 3 My.& Cr. 753. 759. sec 13 Ve*. 167 ; aoU 2 Alk. 113 ; 
 
 (/») Walkf, \. HvW, 1 .Mad. 528. J V. Wm». 395. as lo a plea.
 
 CHAP. T.] MATTERS OF INJUNCTION. 357 
 
 siderable sum of money in the defendant's hands, and a 
 dispute in the Ecclesiastical Court as to probate, and 
 danger of the money being lost (e). 
 
 A demurrer to a bill for an injunction being overruled, 
 the plaintifi" is placed in the same situation as if default 
 of appearance or answer within the proper time had been 
 made, and may move for an injunction (/). In the case 
 referred to, it was said that the plaintiff's right to move 
 would be subject to this, that if it be out of term, he 
 could only move on a seal day ; but on this point it is 
 apprehended that the modern practice of moving on any 
 day, in or out of term, would now prevail. 
 
 18. An injunction will not be granted to stay execution 
 after a verdict obtained at law, when the plaintiff in equity 
 has had an opportunity of defending himself at law, unless 
 the case is extremely clear to show that the verdict was 
 against equity. And where the case was, that a party, 
 having been a partner in a firm, had by letter given notice 
 to the bankers of such firm not to honor bills drawn by 
 one of the firm in its name, an injunction to restrain execu- 
 tion, on a verdict obtained by the bankers against the plain- 
 tiff upon a bill so drawn, was refused, as it did not appear 
 that the judgment had not been deliberately given (_9'). 
 
 On this subject Lord Eldon said, in Rowe v, Wood{h), 
 " that in general an injunction is never granted to stay exe- 
 cution, except for want of appearance or answer. The par- 
 ties ought to have applied sooner; and it would be ex- 
 tremely mischievous to grant the writ in favor of persons 
 who have lain by so long. An injunction is not granted 
 to stay the sherifi' from selling property taken under an 
 execution, unless it had been previously obtained against 
 
 (e) Jones v. Taylor, 2 Mad. 181. 227. 
 
 (/) Claughton\.HadweU,(>Md.^. (h) Ibid. p. 234, n. See also 
 
 299, O'Donnellv. O'Donnell, 1 Hog. 176. 
 (g) Protheroe v. Forman, 2 Swan.
 
 36H UF TnP. PnACTICB IN [part III. 
 
 the' dell lulattt to »tav <»xi'<Mitioij ; niid llu» nherifr ilius en- 
 joined must wll iiiuler »ul>««M|ucnt fxrculiuii, milt'i»H the 
 pluiiilill will iiiilriiiiiify him. lo a tpccial caM>, however, 
 jin injiimtion hiin l>e**n ohtainwl to ntny execution, us where 
 n wjirr "" -T .fi.,fiif.y had been •>''i:oii. il liv fV-.nul." 
 
 VJ. The eonunoii injtinotioii to niay r.\n uUou, uiul the 
 extrnHion of it to »tay trial, rnnnot l>c «»litained on one mo- 
 tion li). A cniw of Writjht v. liraine{h) w ununlly referred 
 to as an nnthonty for thin nde : thai case apix-arK, how- 
 ever, by Mr. HcU'h note, to have l)een an injunction ni an 
 adniinistnition nuil, on the motion <»f the (•xecul<^)r. Mr. 
 Hell nientiiUH the com of a motion for an injunction in a 
 creditor's suit to .stay prooe<din'^'ft al law, aw an exccptif»n 
 to the general rule of pniclirc ; hut il is nulunillctl, thai il 
 is not properly '«»'» exception, and in truth haw nothin|; lo d<j 
 with the tjcnerni rule, whidi iijipln s only to the common 
 injunction souyhl lo Ik* cxtenfjed to stay trial ; whtrcaj* the 
 injimction '^ranted in n creditor'^ suit ih in the nature of a 
 sjM'cial iniiMirtn»n, Ixint; ij[ranled without reference tf» the 
 r|uestion whether the defendant is or is not ni default ; and 
 if i^ranted at all, always stays all further prococdmgs. 
 
 ;?0. A writ of cxccuti(»n hinds the proj)crty in the debtor's 
 sjoods only from the delivery of the writ to the sheriff//) ; 
 where, therefore, the goods of a partnership were taken in 
 execution for the debt of A. one of the partners, but h<- 
 (lied before the writ was delivered to the sheriff, it wa.'' hehl 
 that as the goods were vested in the surviving partners by 
 the death of A., they were not bound : and an injunction 
 was sustained to restrain the shenH from removinLT the 
 goods (;/j). 
 
 There is no doubt tiiat it excculiou has been executed 
 
 (i) Garliek v. Veanon, 10 Vcs. (/) 29 Car. 2, c. 3, •• 16. 
 
 450. (m) SnetU v. Tavnitt%d, 6 Sim. 
 
 (fc) 3 Hr. C. C. 87, edit. Belt. 419.
 
 CHAP. I.] MATTERS OF INJUNCTION. 359 
 
 before an injunction can be obtained, in a case in which the 
 Court will interfere after execution executed, the Court 
 must set the matter right ; but cases in which it will so in- 
 terfere are special (n). If the execution has been against 
 the goods, although the sheriff may proceed to sell them, 
 the Court in a special case will stay the money in his 
 hands (o) ; and if the execution is against the body, the 
 Court will also interfere and deliver the party, taking care to 
 place him in such a situation that he shall not be at liberty to 
 say he has satisfied the execution (p). In a case before Lord 
 Eldon, a verdict had been found for the plaintiff, and the 
 defendant at law was taken by the sheriff; afterwards he 
 was discharged by a judge's order, on payment of the 
 amount of the verdict into the Court of law ; and after 
 that, the defendant at law obtained the common injunction 
 staying execution. The Court refused to discharge the 
 order for the common injunction, and made an order that 
 the plaintiff should apply to the Court of King's Bench 
 for the money paid by him into that Court, and that when 
 received, the same should be paid into the Court of Chan- 
 cery, to abide the event of the cause (q). 
 
 In a case in Vernon, after judgment in ejectment and 
 execution awarded, the under-sheriff refused to execute 
 it ; and for this, process of contempt in the King's Bench 
 was commenced against the under-sheriff. Afterwards the 
 defendant at law filed his bill to stay the proceedings, and 
 obtained the common injunction. The Court held that the 
 injunction extended to stay the proceedings for contempt in 
 the King's Bench against the sheriff (r). 
 
 21. Where parties are bail for another, and the creditor 
 brings an action, the bail cannot have an injunction to 
 
 (n) 2 Swanst. 548. 539 ; see also on this subject, Frank- 
 
 (o) Ibid. 549. tin v. Thomas, 3 Mar. 225. 
 
 (p) Ibid. (r) — — V. Emerton, I Vern. 25. 
 (g) Hawkshaw v. Parkins, 2 Swatist.
 
 360 -M ini. I ic V. li. I. IN [I'ART 111. 
 
 jitay tin- intKHi, witlimit hriiWjjiii*; iIk* |»iiihii.;i1 liibtor bc- 
 ton- till- C\nirt U). 
 
 UJ. lhsiiaiitin<; for ronl «Ic><*h not full within llu bttul 
 uu'uniii'^ *>( a pHK-rrtlni'^ at law, for it is ihr •xcrulioa o( 
 tin- party hiiiiHclf, and not nn oction in wliicli lu- ujipluH 
 f«»r till" ansistancr of a Conrt of law ; and it may ' -I 
 
 l>y replevy m-;, and tluTofori! tlu- cominoii iii|uh ^ 
 
 not extend to a distrcftu for rent(0- 
 
 Nor docB the conunon injuiulion hlay piocci-din{;h in tlir 
 Kcrlfsiastical Court; for that purpose there nuiHt he u 
 special application on merits (m). And it seeniB the same 
 rule is applicable to stay j)rocecdings in the (.knirt of Ad- 
 niinilty (r). 
 
 23. Althou<ih, as it has Ix-cn already Blatcd, an injunc- 
 tion a'^aiiist procee(linj;s at law cannot in j^encnd Im; oI>- 
 taiiicd without bill, there are exceptions to that rule. 
 Tliiis, the cumniittcc of a lunatic's estate may obtain an 
 injunction on jHtilion, to stay an action by an auctioneer 
 ai^uinst the solicitor in the lunacy, for his demand for 
 business done for the purj)Ose of carrying into effect the 
 directions of the Court in the lunacy (»/)• 
 
 An order in the nature of an injunction has sometimes 
 also been made, where on the ground of there being no bill 
 before the Court, an injunction in strictness ou^ht not to be 
 f^rantcd. It has been indeed determined that when a 
 decree has been made and fully carried out in a cause, the 
 cause is out of Court, and a motion for an injunction pro- 
 perly so called, cannot be made in that cause, although 
 there may be ample ground for sustaining it in a new 
 cause (-). 
 
 (j) Rotfrov V. Grav»"n, 3 Swanst. (i) Ibiil.; Utfd r. houtirr, 1 
 
 145, D. Newl.Pracl. 331. 
 
 (0 llughtt V. Uivp, 1 .lac. &: \V. (w) He Weaver,'! My. & Cr. 441. 
 
 2m. (t) forrf V. Compton, 1 Coi, 296. 
 
 (ii) Atton. 1 r. Will. 301.
 
 CHAP. I.] MATTERS OF INJUNCTION. 361 
 
 But where there was a decree declaring that certain fee 
 farm rents passed by a will, with directions to the trustees 
 to convey them, and the decree was afterwards affirmed 
 on appeal to the House of Lords, and the defendants after- 
 wards distrained for those rents for the purpose of bringing 
 the point before a Court of law ; Lord King refused to 
 grant an injunction; but his Lordship made an order to 
 stay the proceedings at law until a bill should be filed {a). 
 On the authority of this case, Lord Hardwicke, after a 
 decree declaring the trusts of a will, refused to grant an in- 
 junction without bill to restrain proceedings in the Eccle- 
 siastical Court touching the same will ; but he made a 
 similar order to that in Atcherly v. Vernon (b). And in a 
 late case in L'eland, where in a suit for specific performance 
 the only point in dispute was, whether the plaintiff" could 
 make a good title, and the Master having reported that he 
 could not, the bill was dismissed, and afterwards the plain- 
 tiffs brought an action at law on the agreement; the Court 
 granted an injunction, or an order in the nature of an in- 
 junction, the defendant undertaking to file a bill forth- 
 with (c). 
 
 24. There are also some old cases (d) in which suits having 
 abated, injunctions have been granted, although the suits 
 were not revived. On these Lord Henley observes, that 
 they are precedents which would not now be followed (e). 
 And perhaps the same remark may be applied to the cases 
 previously referred to (/). For it is not easy to see how 
 an order to stay proceedings, differs from an injunction; or 
 to distinguish on principle the case of a bill not having 
 
 (a) Atcherly v. Veriwn, cited 2 (d) Duke of Hamilton v. Earl of 
 
 Eq. Ca. Ab. 527. Macclesfield, 1 Eq. Ab. 285 ; Robin- 
 
 (/)) Duke of Buckiiighavi v. Du- son v. Lord Wharton, ibid, 
 
 chess of Buckingham, 2 Eq. Ca. Ab. (e) Eden on Injunctions, 45. 
 
 526. (/) Atcherly v. Vernon; Duke of 
 
 (c) M'Namara v. Arthur, 2 Bail Rackingha7>i v. Duchess of Bucking- 
 Si. Beatty, 349. ham ; M'Namara v. Arthur.
 
 362 o^ .iii. i'UACTK^K IN [i'ART III. 
 
 lioiMi filetl, (ruin that of its liavincf Ixfii filed, and Uint; l»y 
 llu' priMcilurf 111 tin; Court uliullv put out of Court uiid 
 (Icti'miiiii-d. It m Nubnuttcd, therL-furc, to tlit; learned 
 reader, that a ivaitonahle doiil>t may Ix* ont^rtaiiicd, \s\ir- 
 (lier tilt* autlioritieH cited arc Hudicieiitly coiiitiHtc-iil uitli 
 prineiple and with theiiisclvci, to mako it clear that the 
 (Joiirt Would now, without the iiiHtitiition of a fn-nji Hint, 
 }»r«nt an order to stay proceed iiii^s at law, in n*ftj*<'«t ui the 
 Huhjoct iimttcr of a Huit which han whcilly determined. 
 
 2/). It iA ffometimoH made a condition of (granting an in- 
 junction, where the proceeding at law are in reHjK-ct of a 
 siiiii of nionev, that the money shall Ih* paid into (^turt to 
 abide the issue of the Huit. Thus, where the plaintiff in an 
 action brought for the recovery of a sum of money in 
 abroad, and the dcfend;int at law obtains the common in- 
 junction for default of apj)eanuice or answer, he must pay 
 the money into (Joiirt in a given time, usually a month, or 
 the injunction will l>c dissolved (/;r). 
 
 lUit where a suit has l)een instituted i ' 
 
 o/nt bond, and an injunclioii obtaiiietl f" 
 at law on the j)laintifr jiaying inloCJourt the sum originally 
 lent, and interest : the monev will not Ik' j)aid out of 
 (^oiiit to the defendant at that stage of the suit; the 
 |)laintiff disputing the title of the defendant to receive 
 the money, unless the bond is set aside (A). And in 
 a case in the Hxchequer, where a purchaser of go«xls 
 had obtained an injunction to stay an action for the 
 price of the goods, on a bill for <liscovery alleging that 
 they had been charged Ix'yond the price agreed for ; the 
 Court would not order him to |)ay into Court even the jirice 
 admitted to be justly due, to abide the result of the 
 action (i). 
 
 (g) Potu V. BtiUer, 1 Cox. 330, 672. 
 and the cases there cited. (i) Partull v. \abitt, 2 Pri. 149. 
 
 ('i) Marsack v. Farlotc, .Tacob,
 
 CHAP. I.] MATTERS OF INJUNCTION, 363 
 
 It seems scarcely necessary to cite an authority for the 
 proposition, that where on a bill for account and injunction 
 against proceedings at law, the injunction has been ob- 
 tained on the terms of paying into Court the amount of the 
 legal demand, such sum is a security and not a payment, 
 and that therefore if it turn out that less is due to the de- 
 fendant, the balance will be restored to the plaintifF(^). 
 
 26. Before concluding on the rules of practice in obtain- 
 ing injunctions to stay judicial proceedings, it may be 
 proper to observe, that an injunction until the hearing is 
 always discretionary, and granted upon the circumstances 
 of the case. There is no such thing as an injunction until 
 the hearing, being of course; and the Court will not con- 
 tinue an injunction till the hearing merely on the ground 
 that there is such a doubt, that the Court may on the 
 hearing make some decree (/). 
 
 The true principle seems that the Court will or will not 
 continue the injunction, according to the character of the 
 doubt, viz. if the preponderance of doubt be against the 
 probability of a decree being made against the defendant, 
 the Court will not continue the injunction, and the con- 
 trary if the doubt preponderate in favour of the plaintiff's 
 probability of obtaining a decree. 
 
 (k) Brovghton v. Pitchford, 6 (i) Potter v. Chapman, Amh\. 98, 
 
 Mad. 295.
 
 864 
 
 OF Tnn l'H.v« 1 u i; in 
 
 [I'AIJT III. 
 
 8BCTtO» II. 
 
 As to Special J^fu»etwn», 
 
 gtm^rml MliMi fk/i. 
 }. f'.ir«f(M«i 1.* till Hml*. 
 
 3. /a^MMlMa grmmUJ !• MVfaal C«J«l 
 
 ••Ml >Mft;srM« ArrifW. 
 
 4. /lai x#«rf«( |{m1« ikmt Smk/mmm 
 
 tktmld t« ttrtfd. 
 &. hMMfftim wktt Bilt/tkd im K«m> 
 li<*a. 
 
 *me0, $p«cUl li(fmncti«m only 
 grtHtni •« Sotiet, 
 
 Mm !•■'». 
 
 8. SpteUt InfttneUMt not gTmnl*d 
 
 unitu 0iprtttly ^ray«W. 
 
 9. PtrlieuUr TttU muU h* tkatrn. 
 
 10. In ll'ail/, fA« C»t* muil 6« /ar 
 
 I'lrt^nl or thrtattntd H'liitf, 
 
 11. In ffnfrtil tpteial Injunction n»t 
 
 granttd »g«inU a Ptrum not a 
 Parly l» ikt Suit. 
 
 It. CMUffWt l« |i 
 
 13. Oftwrt«iiM«M AtionfPj Gtmtnl 
 
 ». NkImI. 
 
 14. li^iiartiMi fraaiarf ia fVtMm/a* 
 
 fdfaiUfci* /ar .- 
 
 Ift. On ** p«rl« ' 
 Fmeli mutt (•' 
 If M met NMWMary 
 
 16. Prp0( *f «N iulniaMi mi mi* 
 
 17. (V ,4^4«t<iii>^. 
 
 18. H'krr* •n mn > - 
 
 an iirteud la k uamtimati. 
 
 19. HA«T#/V 
 
 A I' UlJlU4hiUl 
 
 1. 1 . 
 
 20. Whtr* AntK4t tj a Defendant 
 
 read ogaintt co.l)tir,,,lani. 
 
 1. In gonoiiil a sjvcial injunction cannot, any mom than 
 the conunon injunction, bo obtained except on IjiU filed, and 
 on motion. 
 
 2. But in regard to special injunctions there are many 
 cases of exceptions. Thus in the case of a woman being 
 an infant «ard uf Chancery, an injunction to restrain her 
 from innrrying, and to restrain the j)arty pro|)Obing marri- 
 age from marrying her, has ]x;en granted on petition (a). 
 So it was early determined tliat in a case of waste, such as 
 
 (a) Sniith V. iimUh, 3 ,\lk. 304.
 
 CHAP. I.] MATTERS OF INJUNCTION. 365 
 
 working coal mines (a), or an injury in the nature of waste, 
 such as pirating a hterary work {b), an injunction may be 
 granted on petition in the vacation ; and such is the practice 
 at the present day (c). And the reason that an injunction 
 may be granted in vacation is, that the Court of Chancery is 
 always open (cZ). In very pressing cases indeed, an injunc- 
 tion will be granted on petition and affidavits, even while 
 the Court is sitting. Thus in the Mayor and Commonalty 
 of the City of London v. Bolt (e), where a person had taken 
 some old houses in the city of London, and had stowed 
 such quantities of sugar in them, that two had actually 
 fallen down, and he was proceeding to introduce more, the 
 Lord Chancellor granted an injunction on petition and 
 affidavits verifying the facts. But in that case the Lord 
 Chancellor said, he could only grant an injunction on pe- 
 tition, and could not order any thing to be done ; and 
 refused accordingly to make an order for shoring up the 
 houses. 
 
 An injunction has also been granted on petition without 
 bill filed, on the application of the committee of a lu- 
 natic, to restrain waste by the tenants of the lunatic's es- 
 tate (/). 
 
 3. In waste, and cases of injury in the nature of waste, 
 such as working mines, piratically printing books, plough- 
 ing up ancient meadows, or negotiating a bill or promis- 
 sory note fraudulently obtained, the Court will, on a suffi- 
 cient case made, issue an injunction on certificate of bill 
 filed and affidavit of merits, before appearance without 
 notice (^), and even before subpoena served (/j). And the 
 same principle it is said prevails where the plaintiff having 
 obtained the common injunction to stay proceedings on 
 
 («) Smith V. Clarke, Dick. 455. (/) Ke Creagh, I Ball & B. 108. 
 
 (6) l^ichoh V. Kearsley, Dick. 645. («) See Doolittle v. Walton, Dick, 
 
 (c) 1 Smith's Prac. 595. 442 ; 1 Smith's Piact. 593 ; Newl. 
 
 (rf) Temple v. Bank of England, 6 Pract. 337. 
 
 Ves. 769 ; 7 Ves.257. CO 1 Smith's Pract. 593 j 1 Newl. 
 
 (e) 5 Ves. 129. Pract. 337.
 
 :H]G or THB PRACTICE IM [rADT III. 
 
 Mich an tjuuuinciit, move* utt uiiulavil U> c&UtikI the lu- 
 juiurtioii lu tttay thai (i). 
 
 8u a» Uj a Ull |?ivcii lur a uaiiililiit^ »l«l>l, ua cs innt. 
 injuacUuii Iws bicu ^nijitixi lo rettniui llw lu-goUuiiwi. .1 
 il, allhuuuh It wua vtud in ita very cfmtiou(A).o» lla* gruuitd 
 that It would induce tlic uoccMity of making other |ivr»on» 
 |«rtiea(/). 
 
 4. In gGiM^rnl, however, to tiutain a •{mm ml n 
 «uh|>ionu t.» a|)|Mur iiinl aiiiwrr nm»t liavt- liw-'ii ... .. 
 thu «l« IcihIuhI. TIiu wm iiidinclly dccuUni hi uf>tMMiUoa 
 to the antecedent prut- lice in a cajw of .4 //«r' 
 
 Nuholim), uiid till! pructicc np|)Cani i»iiuc to i,.. 
 conlmu'lv (n). 
 
 :,. 1 lu ri: i.s ;m « xcfpti'ili, li"U > .1 ' 
 
 in the vaculion, ami then il lli« 
 
 tion iH immediately made, it may be obtained w ilhoui acr- 
 vuT of siil»p«i-im ; but if tl ' \\. 
 
 tluTf if» tm»«- U) hcrve tin- m , . . .1 
 
 imtil 8ub|MPiia has been served (o). 
 
 Here il may l>c observcil, llml il \^ irregular t .1 
 
 8ub|Mj.im on a Sunday. And wlicre llial lia.s Im , 
 
 and an injuncUoii and attachment grounded on it have been 
 issued, the defendant ujay, although he has not appeared, 
 
 (0 3 Bf. C. C. 476. n. •«. - <»««»»l 
 
 \k) Hy »UL 9 Anne, c. 14, .s. 1 - --, :icc« dc- 
 
 Sucli nolc4 arc now held lo have been c».lcd »o. by dcprirtog the plaioliA, 
 
 given for an illegal con»idcr»tioo ; tec on account of U»«ir baviog iMgl«clad 
 
 aitU, p. 6. '<* »enrc kubpceoa, of Uic iigbl l« le- 
 
 (0 LioyJ V. (JtiT,ioH,'l Swatu. IbO. <juifc the dcfcodaoU lo :• ' 't 
 
 (m) IG Ve». •<-1**. Inibwcaieao movint; to diMoKe . a 
 
 injunction li ' '' 
 
 tilicatc of bii ' 
 
 refused, it i» true, tu divtuUc the u>- 
 
 junction, although ^ubpana bad not ; 
 
 been MTved, on the groond that the 
 
 plaintiff had been milled a* lo the ^ 
 
 ptacttcc, and that in fact the practice (<•) Da^ and Uartin ». GmU*^, 
 
 h ' ■ ■ ' -h wav». Hut bis l^ord- I M" • "'I
 
 CHAP. I.] MATTERS OF INJUNCTION. 367 
 
 come to discharge the orders for irregularity, on entering 
 an appearance with the registrar, and the injunction and 
 attachment will be set aside (p). 
 
 It is proper also to notice, that where by an act of par- 
 liament incorporating a company, the service of any writ 
 or notice on a director, is made good service on the com- 
 pany, a notice of motion must nevertheless be addressed to 
 the company, the act only affecting service of the notice {q). 
 
 6. The general rule is, that although an appearance 
 gratis does not defeat the plaintiff's right to an ex •parte in- 
 junction, yet, after the defendant has appeared on subpoena 
 served, a special injunction can be moved for only upon 
 notice (r) ; but an exception to that rule is made where 
 the threatened danger is imminent and would be irremedi- 
 able (s), and that whether the defendants have been served 
 with notice, or have appeared gratis. In Acramanv. Bris- 
 tol Dock Company the defendants had appeared gratis on 
 the filing of the bill, and it did not appear, nor was it stated, 
 that they had been actually served with subpoenas at the 
 time the motion was made. It was contended that the 
 motion was in fact an ex parte one, and that the defendants 
 were not entitled to be heard by counsel, but this objection 
 was overruled. 
 
 The ground for permitting an injunction without notice of 
 motion, where the danger is imminent, whether the defend- 
 ant has appeared or not, is, that if a person about to commit 
 waste could, by appearing the evening before the motion, 
 prevent it, he would get two days for committing the waste (0 ; 
 but perhaps it might have been different if he had ap- 
 peared long enough to enable the plaintiff to give notice (m). 
 
 (p) Mackreth v. Nicholson, 19 Ves. (s) Allard v. Jones, 15 Ves. 605 ; 
 
 367, Acraman v. Bristol Dock Company, 1 
 
 (q) Brickwood v. Harvey, 8 Sim, Russ. & Myl. 321 ; Petley v. Eastern 
 
 201. Counties Railway, 8 Sim. 483 ; Bell 
 
 (7-) Marasco v. Boitou, 2 Ves. sen. v. Hull and Selby Railway Company, 
 
 112 ; Collard v. Cooper, 6 Mad. 190; 1 Rail. Cas. 623. 
 Perry v. Weller, 3 Russ. 519, and (<) Allard v. Jones, 15 Ves. 605. 
 
 see Harrison v. Cockerell, 3 Mer. 1. («•) Ibid.
 
 368 or TUB pa ACTIO! IN [rAnr in. 
 
 7. Ami where there is iiu inimediftte ap|)rehen:»iun uf 
 ini«chief', iiulicc iiiUAt be given if the dflL-tiduiit haii up- 
 |>euretl (p). And when the motion it made uftcr a|>|>eur- 
 once, the aHidarit in «up|>ort ufit Rhould^lut*.* ihul fuel. If 
 it doc* nut, the order will be irregular ij-). 
 
 A notice cif motion nerved by ftpeciai Irave of tlie Court, 
 for n K|M>ciul injunction b<'furc the d<rt'iidunt't» u| ; 
 tu U* iu«>vcd on II duy nut a|i{Hiiiilcd (or niutiuiiit, i. 
 on the fuce of it thut the leave of the Court ha« l>ocn ob- 
 luincd. If it tlucn not, the defendant may di»re^urd it(y). 
 
 8. As regardt Kfwcial ii« well an other injuncliont, it 
 imiHl \m' obw-Tved, that iiii iiijiiiirtion, |iro|MTly ho culled, 
 cannot \>v L:r:iiiti<l. iiiiIc>h i-.\|iii-s>lv |iiiiNr<| foi bv llur 
 l.ilK.- 
 
 v. To nljtain an rx parte iiij unction aguiiiHl wuaIc, a 
 particular title must Ixr hhcwii ; an afhduvit •rciicnillv that 
 tilt' pinintili t» cntitlml in ftc hiinplc ih not < i 
 
 that he in itifornKMl and iHrliirvch that he i>> . 
 
 man under u 8cttlcincnt(6). And the bainc rule uppliet 
 to C0HC8 of copyright(c). 
 
 10. In rases of waslr, the injuiiclion inu»l be cither for 
 present or threatened waste. It will not l)c gnuited on an 
 allegatiun that A. has not accounted to H. as he ought to 
 
 (i) CoJ/drd v.C«o^>rr, U Mad. 190. ihc two bad committed wasir. Tiw 
 
 (i) Harrison v. dtckerill, 3 Mcr. luolioa was rtocwcd OD ao aAdatil, 
 
 I ; Handalt v. Commereial Htntttoy tclliog out particularlj tb« IraoMC* 
 
 Ci'mpanti, 8 Ijtvr Jouni. 252. liook and deed* uivier wlikb ibe 
 
 (y) //>/' V. IlimtU. 8 Sim. 632. plaintiff claimed, and od that an ofdcr 
 
 (i) Sdtorv V. Duer, Amb. 70. for an injunction wajk made. See ibt 
 
 (a) n'hiuUgg V. Mkittltf^, 1 Dr. note in 1 llr. C. C. 57 ; aod Reji. 
 
 C. C. 57. The bill in thi« case allc- Lib. B. 1778, fol. 395. 
 
 gcd.thaloncofilic defendants was the (h) /><ii ii v. /^ro, 6 Vc*. 784. 
 
 plaintiff 's tenant j and that the other, (<-) I'lati v. liultcm, I9Vcft. 447, 
 
 who »»s the plaintiff's younger bro- (iilUtcr v. i>naggt, 2 JU|. Ab. 522; 
 
 thcr.ptctcndingsome title, hadinduccil Momt r. Kelly, I Jac.& W. 481. 
 
 ibc tenant to attorn to bim ; aod that
 
 CHAP. I,] MATTERS OF INJUNCTION. 369 
 
 have done for tlic rents lie has received, nor the wood he 
 has cut dovvn((/); nor on a mere apprehension that the de- 
 fendant means to commit waste, when he denies such in- 
 tention (e). It is sufficient however to support an apphca- 
 tion for an injunction to stay cutting timber, that a surveyor 
 has been sent to mark out trees. The Court will not wait 
 till they are actually cut down {/). So a threat of open- 
 ing mines (^), or cutting timber (Zi) is sufficient. 
 
 But a threat, or such conduct on the part of the defend- 
 ant as will induce a belief in a strong probability that he 
 will do a wrongful act, is not sufficient to ground an in- 
 junction, if the wrong is not only one that has not actually 
 liappened, but cannot possibly happen until a certain 
 future period. Thus in a partnership, containing a cove- 
 nant that either party might dissolve at the end of seven 
 years, and that after dissolution the party retiring should 
 not carry on business within a given distance; a notice 
 of dissolution, and of intention to carry on business after 
 it, was held insufficient to support a motion for an injunc- 
 tion to restrain the defendant from soliciting business, 
 and from dissuading parties from employing the plaintiff, 
 as the relief asked was not against an existing wrong, 
 Init against the possibility of a future wrong (^). And 
 although if the covenant had been sufficiently wide, solicit- 
 ing persons for business before the period of actual disso- 
 lution, might have been sufficient to ground an injunction, 
 yet as the covenant was only against actually jjractisiny 
 the business, it was held that the soliciting would not at 
 law be within the covenant, and therefore was no ground 
 for relief in equity {it). 
 
 11. It has been observed, in reference to injunctions to 
 stay proceedings at law, that they cannot in general be ob- 
 
 (<0 J»io». Lofit, 151. (/i) 7 Ves. 310. 
 
 (e) 7 Ves. 309. (0 ^""'"^^ v. Coales, GMad. 287. 
 
 (/) Jackson v. Cater, 5 Ves. 688, (/c) Ibid. 
 
 (g-) Gibion V. Smith, 2 Atk. 182. 
 
 B B
 
 370 UF TBII PIUOTICB tN [PAKT 111. 
 
 tiiinoci tK'uii'Hi (^ peraoM not » •"">v i* il"- iuit ; aixl Uiiii i* 
 iiUo ll A rule 0* n . •Jiib ubuiiitcil oii 
 
 npCClul u)i|jticttllull. 
 
 12. But Uicrc urc eKcc|ilJui. Tliuft, Mlicro it 
 
 |ii*r«ou |iuix-liuiM» under a (Itxiic, uliiiuu^li itul u 
 
 MubiiiilH liiiiiMrir ttt (1m* juriMlicUoii u( Uiu (.*\iu.. 
 
 iiuittrm ii;iit)ci-u-<l with hi* ctuiructcr of iiurcliuitcr. If 
 thrrrturv he dittilic)* nit uiiier Ut |Niy in hu , 
 inuitcy vt dchter u|i |io»»e»»iun, he uilM' " -'• 
 hi- ihhvei> up iKMMKTMiiun, Iruui Luininillii. 
 
 Si un injuucUun will under circuinhlunccj* be ^^luU:d 
 tu n»tniiii u Huluilur, nut u )>ur(y» fruiu uctin^ fur unu o( 
 the |Mtr(iL*h^rNj. And it .scciiih iruin u hhurt nolo of u cum 
 in Dickenii(M), thul un injuncliuu might Im: gruiitod tu re- 
 strain \vu>t ' . ; ibuiiii not imrtich, lut fur instance u 
 tenant in |" , or lenanls ut u inuiiur. 
 
 And by thi* 40 (Jvo. 3, c. 36, an injuucliuii may be 
 nblaiiH ' I tilt- Hank of 1 ' ' . :' m 
 
 fruiii I . ^ ilic tnin.Hlir of - i 
 
 nut be |iartie2i tu the cuu*>t-. Befurc the |m ihiit 
 
 act, an injunction against the Bank tu repliant Utc iin- 
 projK-r tniiibtci ul slock, would nut Ix; granted except un 
 nuticc, nor till after the other dcfcndunls iiad ap|M:arcd, or 
 were in cuntcnipt^o). And the same rule still it hceiuH 
 exists; and in order tu obluin un injunctiun against the 
 Bank when they are not made parties, nulicc must be 
 given to the dcfendanbs, unless from the necessity and 
 urgency of the case nuticc cannut Ihj j^iven. And then 
 the application must Ix: on atlidavil that such necessity 
 and urgency exist(;>). 
 
 l.'J. A special iniuiutujii being always granted ou 
 
 {I) Cauima; ^"'or, Dirk. 68, and a CAM cilcd 
 
 Slu. 381. » . .Wo«/t. Dick. 670. 
 
 (■i) CWwi.M... < . . :' . Dick. 442. 
 
 Vo. 261. <//, 6Ve». 
 
 (») AtlortuV'Ctnaai ..
 
 CHAP. I.] MATTERS OF INJUNCTION. 371 
 
 merits, can of course, in general, only be dissolved on the 
 merits appearing either by the answer or by affidavits ; 
 and as the injunction is granted till answer 07' further 
 order, the settled practice is now for the defendant to 
 move to dissolve at his option, either on the answer, or 
 before answer on affidavits (</), without reference to any 
 question whether the plaintiff has, by neglecting to serve 
 subpoena, waived his right to an answer. 
 
 In the Attorney- General v. Nicoll{r), it was contended, 
 that the defendant could not be heard to dissolve an in- 
 junction on the merits on affidavit, or until answer; and 
 the Lord Chancellor held that the relators, not having 
 served suhpcena, should be considered to have waived their 
 right to an answer, and that where no subpcena has been 
 served, the defendant may come to dissolve on the merits 
 disclosed by affidavits. This reason requires some ex- 
 planation, as it might be inferred that Lord Eldon meant 
 to say, that where subpoena has been served, the de- 
 fendants cannot come to dissolve the injunction on affida- 
 vits, a position which would be at variance with modern 
 practice. But this apparent discrepancy between the 
 practice of the present day and the reasoning of Lord 
 Eldon in the Attorney-General v. Nicoll, is removed by 
 observing, that at the time when that case was heard, it 
 seems the form of the special injunction was usiially " till 
 answer and further order," and was in that case, as ap- 
 pears by the "Report in Vesey (5), " till answer." The 
 present form, which was not adopted till some years after- 
 wards, is, " till answer or further order." 
 
 It required, therefore, consistently with the form of the 
 order in the Attorney -General v. Nicoll, some special 
 ground to allow the defendant to dissolve before answer, 
 whereas the present form of order has, it is said, been 
 adopted for the express purpose of allowing the defendant 
 
 (9) 1 Newland's Piact. 353, and (r) 16 Yes. 338. 
 
 the case of Taylor v. Waistall, there (s) 16 Ves. 339. 
 
 cited; see also Smith's Tract. 600. 
 
 B B 2
 
 37*J OP TUB PHAi^li i; l^ p'Alti 111. 
 
 to move bt-fort' uunwer; ami ut oil oveiiU lii» iliiiiip; f»o i!> 
 IMrftitlv tt»u«»ii»lfut Willi llic tcniiit oftlic iiijuiicliou*. 
 
 II. lit l'ov<trtl V. Chmltcick (t), u iii«ilioit by nil t ijUiLablc 
 iiicuiitbniiiccr I'ur u receiver \sa» rcfuikrd, llie iiiurl^i<;or nut 
 iiuviii{; apiicarvtl. Hut in u later ca«o au iiijuiicliuii uiid 
 recriver were i^rnntiMl ui ilu* huiI of uii »M|iiitnbli- iiiruiii- 
 ImiiU'cr, n^tiiiifvl the IruHtceh ol the le^ul iHtule unci u prior 
 ineiinibrnncer, ullhuii^h the niurt{^(;or wn« out of the ju- 
 riiulictii>ii, tiiul hud nut u|)|Hare(I(M). The (ourt put it on 
 the ^niutid thul if the reHideiue of the niorl(;u^or out of 
 the junsdictiuM were to huve tin- cfleet of pncludiiig Huch 
 un order, a socoiul iiiciinibmnccr ini^ht 1m.- delayed U> all 
 eternity. However, tin* order will Ik- ho fninied ns not to 
 pieveiit any who may huve u better title tu the |M't«M^»Hion, 
 from oUHting such ecjuituble incumbnincer(x). 
 
 M'htre a per.soii has ^r.mletl several hu< ■ .uiniiin>, 
 
 and a bill is tile<l by oiu of the imumbnu '^'"g 'dl 
 
 but the firRt parties, and in that suit a decree is made oiv- 
 eertaiiiiii^ the piioiitirn of the im-iiml ippointiii^ u 
 
 Kvriver, and K'*'"!^ coiiserjuenlial <; - ; it ik irre- 
 
 gular III the first incumbrancer to file another bill, and 
 moN (> it) bueh second suit for an injiiiictioii to restrain the 
 receiver from receiving the rent. lie ought to apply in 
 the first suit for leave to enforce his legal remedies (y). 
 
 I.;. It !.>> the iluty of a person coming for an ex parti m- 
 I unction not to misrepresent the facts of the ease, ami to state 
 all the material facts to the C'ourt(r). But if he states on 
 applying fur an ex parte injunction the facts ;u> they were 
 shortly before filing his bill, the injunction is not irregu- 
 larly obtained, although it should turn out to Ix; the fact 
 that the (lay before the bill was filed, the defendants, had 
 
 (•) Sec on this 1-^cn on Injuoc. ^>) ''^ Ru&s. 1 .3 1. 
 
 323, 326, and note (j), p. 325. (y) Umith *. VaitI of F.ffin^kam, 2 
 
 (1)2 Uui», J 5ft, n. Ikar. 232. 
 
 («) Tanfitld V. Inint. 'l H-i- --> 1 Mvl \ Cf. 210, 21 1. 
 1 49.
 
 CHAP. I.] MATTERS OF INJUNCTION. 373 
 
 commenced abating tlie injury complained of, ])rovided 
 the plaintiff was not aware of that fact at the time of ap- 
 plying to the Court(rt). And he is not, it seems, bound to 
 lay the whole law before the Court ; and therefore an ex 
 pa7'te injunction was held not irregularly granted, because 
 the plaintiff, calling the attention of the Court to an act of 
 parliament generally, had not particularly called its atten- 
 tion to certain clauses of the act, which might have pro- 
 duced a different impression on the mind of the Court {h). 
 
 16. Where an instrument is neither admitted nor denied 
 by the answer, in order to obtain an injunction, the plain- 
 tiff must, it seems, prove the existence of it by affidavit. 
 But the practice is otherwise as to the personal right of 
 the plaintiff. Thus, where the plaintiff was in possession, 
 claiming as tenant in tail under a settlement, the Court 
 thought that he need not prove the marriage of his father 
 and mother, the answer neither admitting nor denying it ; 
 his possession being sufficient evidence of his alleged 
 title for the purpose of the injunction, where it was neither 
 admitted nor denied by the answer (c). 
 
 17. Considerable difficulty has always been experienced 
 in clearly ascertaining the practice as to when affidavits 
 may, and when they may not be read in support of an in- 
 junction, against the defendant's answer. The general rule 
 is undoubtedly, that for the purpose of obtaining or con- 
 tinuing an injunction, affidavits cannot be read against the 
 answer (fZ), but there are exceptions to this rule(e). And 
 in cases of waste or of injuries in the nature of waste, affi- 
 davits are allowed to be read, under certain circumstances, 
 against the answer, as to the acts of waste, though not as 
 to title (/). 
 
 (a) Seinple v. London and Bir- SUi. 221. 
 mingham littUway Company, 1 Rail. (d) See Newl. Pract. 341; 1 
 
 Cas. 480. Smith's Pract. 596. 
 
 (/>) Allorneij-General v. Manor of (e) llnd, 
 
 TJverpool, 1 Myl. & Cr. 171. (/) Sec post, chap, v., vvhere tho 
 
 (f) Hodgson V. Dean, 2 Sim. & subject will be more fully discussed.
 
 S74 OP TIIR PRACTK I ' [l-AIJlIM. 
 
 Ill n vrry hit*- nine iH^Inn* tin- Vit*i-( l».micll<<r, ihe jjIuim* 
 tifl" luiMiijj u|>|»lu'<l for uii injunction ex fnirtt to prevent 
 tliu tlfltMuliinl from Ji)«(ruinin|; for nrrram of an annuity, 
 till- Court onlrriti (he pluintiH' to f^ivp notict* of motion. 
 'riii> iiiihwcr uu» put III nftrr the notice Initi Ikhmi ticrved, 
 but iM-forr tlir duy namrti in it for tlir motion to bf made ; 
 und on the mulMiu ht-in^ nitidtr, the tlcfciiduiit ohjcrtfd 
 that the ufliduvitH (ilffl in hupf>ort of the bill could not be 
 rend in oppONition to the ouHWcr ; but hiii Honor over- 
 ruled the objection, nnd allowed the afliduvitM to be 
 read (f/). An<l to the snmp effrct i« o Inte rnBc in Ireland, 
 where thcCourl held, ihul if the answer to a bill for a «|K'cial 
 injunction io put in after the notice of motion has been 
 served, it ean only be ii.Hcd as an aOidavil in opponitinn to 
 those of the plnititil), niid not to turn the plaintill' round, 
 niid prevent liini from obtaininjr the injunction except on 
 the ecjuity confesRe<l in the anBwer(/<). 
 
 |H. Where in nn application for an injunction ujion afli- 
 tlavits met by atlidavits, such aOidaviti^ are eoiilnidielory 
 as to the mutenal facts, the Court will direct an iasiuv, 
 ordcrini; both parties to l)c examined. It is not, however, 
 to be undcrsloo*! that the parties are to be witne}»»e« for 
 thiMuscIves, or for the other side, but ihcy arc \si»'" --'-j for 
 the Court (i). 
 
 19. It lias boi II held in the I-!xchefjuer, that if in sup- 
 jxjrt of an application for an injunction to restrain the 
 transfer of stock into the names of a feme covert adminift- 
 tralrix and her husbarul, on the ground of insolvency and 
 of their being abroad, the ])laintifr will swear to his belief 
 of insolvency, and the defendants by their afTidavits do not 
 clearly negative that allegation, an injunction ouixht to be 
 granted ; for that where a jiarty swears to his belief of a 
 circumstance which must, if true, be in the knowledge of 
 the person whom the statement is meant to aftect, and he 
 
 {g) Atkiiitou r. htmhlf. (h) Atktnum v. CoUitt$, Hog. 110. 
 
 638. ()) Dt Tatut V. BordaittPt, Jw. SIC.
 
 CHAP. 1.] MATTERS OF INJUNCTION. 375 
 
 will not deny it, such belief is sufficient to induce the Court 
 to take the circumstances as acknowledged (k). 
 
 In general the answer of one defendant cannot be read 
 for the purpose of aifording evidence against another; 
 but in an early case, where the answer of one defendant 
 referred to the answer of a co-defendant, the answer of the 
 latter was allowed to be read against the former (I). 
 
 (k) Scott V. Becker, 4 Pr. 346. (/) Avon. 1 P. Will, 301.
 
 37(1 
 
 • II I III III A»-rirK IK 
 
 fpAnr 111. 
 
 en \n i k ii. 
 
 KrlrmUinj the Common imjumrtiom to tttnj TrinI 
 
 I. I*r,mrii>lt »/ eilemJimg I' 
 
 I^JHHtiitm III tiiv 7' 
 '.* itfler H^ ot>l>ii»fl milk^'iil l/'<.'.iiil 
 
 litit lh» Ihifotrrit it (-t/wrfft/ lo 
 
 b* Mtil/rid/. 
 1. Afiiiiattt cannot h* tciiitrtnitcUd. 
 4. Hioqw I, liughr« runiulrnl iriiAi 
 
 (All /^Hfr. 
 .'i. li><litm on tilf 
 
 lHJH'tflii>m,at ! / 
 
 y.U^H . 
 (i. Ctttti trhfrc the Ciimmi'n Imfmirllftt 
 
 tiftJ not bf/irti obtatM**!, 
 
 I ■•■,,. ,.■ t.Umiil, «W I 
 
 tk* T%m»f-t tkt A< 
 H. litnr 
 
 
 
 !». 
 
 in. .-li Id tUtmding Imjurrthn till 
 
 I'tlUtn t'f CoMMIl: 
 
 fHinr IfllMnuv. 
 II. f'ot/i vlirrr M«li«N •> MCif* >« 
 rilmW on nmr- -'--' ''•" 
 
 I. 1 1 tln^ ronimon injunction is olitaincd lH.-f<>t« tin ilrcla- 
 i-ation ill llir action at law is (lt•li^crc(l, it stays nil proccrtl- 
 ings; l)iit if it is imt obtainc'l till after the declaration has 
 lioen (Iclivciiil, it only stay< execution, and not trial («). 
 
 But it ItapjK'ns rrcf|ncntly that the ohject of applyin'^ to 
 the Court of Chancery is not that the plaintifl'in equity, 
 adinittinix himself unable lo make a good <lefer,ee at law, 
 can show that he has an ecpiity against the plaintitV at law, 
 requiring the interference of equity to deprive the plaintifl 
 at law of the fruits of his legal rights ; hut that there is 
 matter in the knowledge of the plaintiH at law only, or in 
 the breasts of witnesses whom the |>laintitrin equity cannot 
 brini; forward at the trial, which would irivc him a goo<l 
 
 (n^ 10 Vr5. 452; sec niso WulUn Vc«. •168. In llic Kicheqaer it it 
 
 . «>.-.. 1., \,. \\\ T^i ,o, ). 'xl.ciwisc; Fowl. Tncl. 218, rt K^
 
 CHAP, n.] MATTERS OF INJUNCTION. 877 
 
 defence at law; and the relief then asked of equity is, to 
 extend the common injunction to stay trial, until the plain- 
 tiff at law shall have put in his answer, or if the testimony 
 necessary be that of witnesses, and a commission to exa- 
 mine them has been obtained, then till the return of the 
 commission. 
 
 2. Accordingly the plaintiff, in asking for an order to 
 extend the common injunction on the ground of the de- 
 fendant not having put in his answer, must show a case 
 which will satisfy the Court that the answer is material to 
 his defence at law. This is done by supporting the appli- 
 cation by an affidavit. Formerly the affidavit was allowed 
 to be in very loose terms, merely swearing that the plain- 
 tiff was advised and believed that he could not safely 
 proceed to trial without the answer (6); and Lord Eldon 
 made an order on such an affidavit in Partington v. 
 Hohson{c). But in a case of A-pi^leyard v. Seton{d), 
 which occurred only a few days later, his Lordship disap- 
 proved of his former order, and required the affidavit to go 
 further; and the practice is since that case settled, that the 
 affidavit on an application to extend the common injunc- 
 tion to stay trial, must state that the plaintiff believes the 
 answer will furnish discovery material to his defence at 
 law. It is not sufficient to state that he cannot safely go 
 to trial without the answer ; for, as Lord Eldon observed 
 in Aj)pleyard v. Seion, it may be true that he cannot 
 safely go to trial, with or without the answer (f). Gene- 
 rally the affidavit must be made by the plaintiff himself; 
 an affidavit made by the plaintiff's solicitor will not be 
 sufficient, without good cause shown why it was not made 
 by the plaintiff (/). 
 
 {},) See Hartlij V. Hohion, 2 Dick. (</) 16 Ves. 223. 
 
 728; Farrar v. Lewis, ilnd. 729; (e) See the usual form of alfidavit, 
 
 Nellhorps v. Law, 13 Ves. 323; and 2 Smith's Pract. 526. 
 
 see 10 Ves. 452, JiiXis. (/) Spaldiini v. Kcelij, 7 Sim. 
 
 (c) 16 Ves. 219. 377.
 
 378 '" 'MB PBACTICl !»^ fPAIir III. 
 
 :* I i« . ;j qJ- ,,,, .,,!Mi.ivii wuA that 
 
 till woiiUI (uniiitli iiialter for 
 
 hi* ilfltMicf, or tend materially to retluet the amount of Ha- 
 tM" 'it to If rt^covrretl : iilitl oil tliirt uni<l;t\tt lA>rtl 
 
 l.iii ^ .^1. It . minli- till ir.) r t-- rxteiid llif i«)iiiiiiun 
 
 iiijiincliun ii a cot- Honor the? N'ui*- 
 
 ( 'huiirrltor. ui) w;ii«f wiih mmlr nji 
 
 ilrlfUilatil Im"Iu'v«*«I the HiiHWor *voiiKl 
 
 toptthrr trit/t other evidence, would ha nmlrriul for hm tlr- 
 
 fi'iicc at law (/i). 
 
 4. Tlir allidavit of the plaiiitiil' in Hti|)|)ort ufa motion to 
 extend, may he filc<l only •!>«• tlay Ixrfore the motion, an it 
 in one that i^cnerally cannot Ix* anHwered (i). fur the Court 
 ^ive8 credit to it and never exannnc* how far it in correct (j), 
 except to this extent, that if the defendant allc^'e* that the 
 |ilaintit1'has hy his bill stateil a case which, adinittin^^ the 
 whole to Ik} true, would not intrtKliice evidence or a dift- 
 covery that couhl posnihly be material at the trial, the in- 
 |unctit»n, as it I '"' * ' 'lintiff, would not 
 
 Ik' granted un il thcCouri wdl 
 
 trust the athdavit of ihe plaintifl, unlcM the bill on the face 
 (it it sli V willbo ininiat<'ri:il(it). Here 
 
 must 1" /;, which appears at first sight 
 
 to militate against the doctrine of White v. Steimcacks, 
 In the case referred to, a comj)any authorised under an 
 act uf parliament to sue and be sued by its oflicer, brought 
 an action in the name of one Hughes, the secretary, against 
 a shareholder for instalments; the defendant at law filed 
 his l)ill against Hughes and nine other persons, as directors 
 and shareholders, charging a case of fraud, and obtained 
 the common injunction for default of appearance against 
 
 (;f ) narktr v. t^rr. 1 lieav. 374. (i) Jon»t v. , 8 Ve*. 46. 
 
 (A)MS. sii! IrinityTcrm (>) i 
 
 1«40. This >. 1. now Ihe (/;)'• ...<if'.i,19 Ve».83. 
 
 usual form of lbcattdavit,se« 2 Smith's (/) Tharpt ^. Hugka,Z'Slj.ht(lt. 
 
 Praci. 526. 742.
 
 CHAP. II.] MATTERS OF INJUNCTION. 379 
 
 the defendants (other than the secretary Hughes). Hughes 
 was not in default, and there was no injunction as against 
 liim. The plaintiff afterwards obtained an order to extend 
 the injunction to stay trial of the action alleged to be com- 
 menced by the nine persons, made defendants in the name 
 of Hughes. On a motion before the Lord Chancellor to dis- 
 charge this order, his Lordship said, referring to the ease of 
 Lord Portarlington v. Graham (m), that if this was a special 
 injunction, it was wholly contrary to practice, and that the 
 rule of the Court was universal, that proceedings at law 
 cannot be restrained except on the defendant's default; and 
 unless the Court treated it as a special injunction by look- 
 ing at the affidavits, the Court could know nothing as to 
 the connexion between Hughes and the other defendants. 
 The action was brought by the company in the name of 
 Hughes, and not by the other defendants, and this order, 
 under the form of an order against the other defendants, 
 which would be useless, because no action had been Li ought 
 by them, was in fact a special injunction against a party 
 not in default. On this ground alone his Lordship held 
 the order contrary to the practice, and bad. It appeared 
 also, that having regard to the issues tendered at law, the 
 matters sought to be discovered by the bill were quite col- 
 lateral to those issues, and on this ground also the Court 
 thought that the order could not have been sustained. 
 " Although," said his Lordship, "the Court gives credit to 
 the plaintiff's affidavit, yet if it does appear on the whole 
 matter taken together, that the ordinary allegation that the 
 matters sought to be discovered by the bill would be a 
 material defence to the action, cannot possibly be true in 
 fact, it is a ground on which the Court will refuse to extend 
 the injunction to stay trial (w)." Now in the case last 
 mentioned, it did not appear on the face of the bill itself 
 that the issues were such that the discovery could not be 
 material. That case appeared only by the affidavit of the 
 defendant, and therefore the Court did discredit the affi- 
 
 (?«) 5 Sim. 416. («) 3 My. & Cr. 761. .
 
 380 OF Tnr. I II M I i< 1 i^ [part iii. 
 
 iluvil of ihr plaiiitin' by rtrnfiiri* to iimtUrh drltors tin 
 
 ttlll. TIll'lll^lUMlllMl liowrvrr lillMt-t-ll tlllH VlXhK uiui M hit' 
 
 V. StriHWitckt t*, tlint in the latter com there wan nuthini; 
 UToM- llir (*«Mirl ill uny »t*'|» untfctilciit to the iuoti« ' ' 
 the hill, uihI thr vny |>ollit wan, whrllut, fui the p'l . 
 urthiuharyiiiu an ortk*r to extend the coromon injiUKtiuii, 
 ttii uthilavit hhoiiM Im> hranl. Whrrran in 77i«#r/»r v. 
 Hmjitrs, thi- iltrt'ndaiil'H aliiduvil in un untcc<'(h-nl hlii^c* of 
 thr |)rt»ciTtlinK« won Ijcforc the Court on the fucc of the 
 very onhr whicli ihn |i|aiiitin' hail ol)taini-(l, as in part ihf 
 ^rotnid «>f that order. The eas** of Thorpe v. Iluijhrt dcici* 
 not therefore M>cm to cHtahlihh any prinriph* inconHinlenl 
 with the geiiend di>ctrin<' ; niid {;o<i» no further on the 
 point muler eonsidcration than to hiy down that, when tin- 
 matter of the ilefcndaiitV afhdavit is incorjioratwl in the 
 very onlcr, on the validity of whirh the Court ha» to (h*cide, 
 tlie Court will not reject such matter, hut will look at it 
 and (heiile upon it in c(»njunclion with the matter of the 
 lull, whether on the xcholr the discovery houghl can be a 
 material defence (o). 
 
 The (\)url will not di.i|>cnse with proof that the diti- 
 covcry sought by the plaintifi^ in cfpiity, in material to hiti 
 defence at law. Tluis in a (a^e where the common injunc- 
 tion for want of answer had been obtained, a mt>tion was 
 made to stay execution of a writ of inquiry of damage«, 
 and all further proceedings until answer, on an aflidavit 
 that the rights of the defendant were disputed by other 
 parties co-defendants to the bill, and could only l>e <lc- 
 lermiiicd by a Court of c<juity, and that the damages couhl 
 not be assessed without an account of the estate of 
 the plainlilV's testator ; the Cxjurt said it was in eflect a 
 motion to extend the conunon injunction to stay trial, 
 without the usual nlhdavit as to the materiality of the dis- 
 coverv, and refused it with costs (/>). 
 
 (.•) S<x' also ihc nolo of llic Icarnol (/>) liotUnhurtt v. Tmlmum, Turn. 
 
 roj»orlcr« in Thorpe v. Huf;hn, 3 My. & Ru**. 306. 
 \ Cr. 761.
 
 CHAP. II.] MATTEUS OF INJUNCTION. 381 
 
 5. The general doctrine as to extending; the coimnon 
 iiijiuictiuii to stay trial, is laid down at considerable length 
 and with great clearness by Lord Eldon in Bisldon v. 
 Birch (r). " The course of the Court," his Lordship said, 
 " he took to be this, that if the defendant to a bill for an 
 injunction to stay proceedings at law, being served with a 
 subpoena, does not appear, or craves time, the plaintiff 
 moves for an injunction, which does not stay the proceed- 
 ings at law, if they had commenced before the suit in equity, 
 as far as regards the trial, but only stays execution. That 
 injunction must be first obtained before the plaintiff can 
 apply to extend the injunction to stay trial, for which pur- 
 pose it is not sufHicient to state that the defendant has not 
 appeared or answered, but the plaintifl" must make an affi- 
 davit that the discovery he expects from the answer will 
 assist him at law, and upon that the injunction is extended 
 to stay trial." 
 
 6. An exception, however, to the rule, that the common 
 injunction must be first obtained, is to be observed in 
 regard to charities. In the Attorney-General v. Pear- 
 son{s), which was a case turning upon the trusts of a cha- 
 rity, an injunction was asked, among other things, to stay 
 all proceedings at law by the defendants to recover pos- 
 session of the meeting-house ; to this it was objected, that 
 an injunction to stay proceedings at law could only be 
 granted in the first instance to stay execution and not to 
 stay trial, but the Lord Chancellor said, that in cases of 
 charitable trusts for religious purj^oses, the Court would 
 not be troubled with any question of practice as to whether 
 it was a common or special injunction, but is in the con- 
 stant habit of saying, that, provided it sees any way of de- 
 ciding the points at issue, it will not allow the parlies to 
 go to trial, but will itself find the means of putting the 
 matter into a course which may save all the expense of 
 such a proceeding. 
 
 (r) 2 Ves. & Bea. 40. (s) 3 Mer. 353.
 
 382 «»V TnB PRACTICB IK [PAHT 111. 
 
 And tlin. .- ..." . I... • '" ' •••A to inU'rpk*ot1ing 
 
 Hiiiu. 1*1 (Ih-mt llic \i. ubUiiii (he cuiu- 
 
 mull I and ihuii uiuvo to ckicfid it to liluy tlu- 
 
 irr ' .....-- ., .,, 
 
 MitrrjiicudiT ht ^l Inw li/i further order, 
 
 und not liku li. ' " i , .1 . 
 
 .uriler(l). It «i 
 
 tJio plaintitr at law ut liberty to deinund a pica and (irocecd 
 to jud-^niriit, but mIuvh Jdl |»i 1' 
 
 ind«'rtl, It »c<;m«, furiiifrly an "HM 
 
 iii(; bill till* inj unction cannot be niovcKl for till the lime 
 for HI hut till? ca»r of ]V ' 
 
 WheuL J that that upiuiun ih > 
 
 7. An onlor to oxtrnd the common injunetiuii Ui ntay 
 trial wdl luil Ix- ninilc clo»>o Ut the time of the wMXwn 
 (as for instaiu'c, where the commihHion day at LaiicaMler 
 wan the day before that un which the 1 >*< made), 
 
 uiiU'Ss the plaintilfwil! ^ive »*orurily for 
 
 .Nor can an injiiiiction to htay trial b< I at once, 
 
 althouuh the pjaintilt' in in a condition to obtain the com- 
 iiioii ii»iunclioii. Nor can the plaintitf move for the com- 
 mon iii)iinction, and then at the same seal move to extend 
 It to slay triaK:). The course is, that the plaintifi firHt 
 obtains the coninion injuiu tioii ; and a is he ha:* 
 
 jKirfected the order, he may mmvc a noti* ui on the 
 
 defendant's clerk in Court, to extend the common injunc- 
 
 (1) Af.vrf ». Ihhtr. 7 Sim. 33« 
 ami MC alio Fuory v. Widgtr, \ Sin ««*«r and farther order. 
 
 15; Seton no Decrees, 338. In llt«. y.. , . .,203. 
 
 report of Moon v. Vthtr, an etror liu (i) Warrington «. Wkeattlone, Jac. 
 
 escaped the notice of the learned n "^' 
 
 porter. I'be expreuions atlnbulod '• I ) \ cs. 
 
 hi» iloDor arc, that the " common id- \'j\. 
 
 junction stays procccding<i at law till (t)Ccr/i>AT. PMrMN, lOVea. 460. 
 
 answer ot further order." This muat
 
 CHAP. II.] MATTERS OF INJUNCTION, 383 
 
 tion to stay trial («). The motion is supported by an affidavit 
 to the effect ah-eady pointed out (6). 
 
 On this point the practice is thus stated in Taylor v. 
 Leigh (c), that an injunction to stay trial cannot be moved 
 for till the common injunction has been obtained; and the 
 reason is, if the defendant puts in his answer it may not be 
 wanted; but the moment the common injunction is ob- 
 tained, the plaintiff may go on to extend it upon the usual 
 affidavit, unless there has been great delay, or the applica- 
 tion is made a day or two before trial ; and it is no ground 
 for refusing the order to extend, that upon comparison of 
 the date of the assizes at which the action is to be tried, 
 with the date at which, according to the rules of the Court, 
 the defendants must put in their answer, it would appear 
 that the answer must be in before the trial ; for there are 
 no means of knowing when the plaintiff will get in a full 
 answer. The rule of the Court is, that an application in a 
 certain form is all that is required, and the Court will not 
 hear the particular circumstances of the case {cl). 
 
 An order to extend will not be granted when the plain- 
 tiff has been guilty of delay unaccounted for. Thus where 
 an action had been pending for two years, and a new 
 trial was to take place at York on the 7th of March, and 
 the plaintiff in equity did not file his bill till the 9th of 
 February, and having obtained the common injunction, 
 moved to extend it on the 28th of February ; and the only 
 ground for not filing the bill sooner was, that the plaintiff 
 was not aware of the importance of certain deeds in the 
 possession of the defendant, though perfectly avvare of their 
 being in his possession, the Court refused a motion to ex- 
 tend the common injunction with costs (e). 
 
 8. Generally the order to extend cannot be moved for, 
 except on notice to the defendant ; but there may be ex- 
 
 (a) See 1 Smith's Pract. 612. {d) Ihid. 
 
 (6) Ante, 377, 378. (e) Field v. Beaumont, 3 Mad. 132; 
 
 {c) 2 Jac. & W. 388. and 1 Swanst. 204.
 
 3b4 UF Tlili i'ltACTICB IN [I'AKI Ml. 
 
 i-cptiuiih lu lliin rule. Tliiiit ill 11 lulv cut»c bcfuro >m I-. 
 Sliiidut 11, V. C, u |iiuiiitiir at luw nut liuviii^ u|)|KniixHi tu 
 ii Itill fur nil injuiu'lKiii, uiul beiii^ iiic'uiitciu|it, iIr* cointiMUi 
 iiijuiutiun lliuln^ Urcii (iljtuiiii-tl, u iiiutuih wao iiiudc to 
 ntuy tnul Mitliiiut iiuticr, tlicrt- Im-iii^ in fnil nu |M:nion uii 
 ulioni tu hvtvc iiulicc. llin llunur niaile tlic unlet, Miyinj; 
 lu* luul Khorlly bofurc nmdc u »iuiiliir oi)c(/). 
 
 !>. It iH a good ubjecliun tu a inutiuii fur an order to ex- 
 tiiiil till- (-uniinoi) iiijuiu-tion to htay tnal, that the niiRwer 
 In ti\ii\(i/>; and li the lit tcndant (ilct> hiH aiihwer between 
 the tiinu ufhervin^; the notice and the tune fctr niakiii<; the 
 motion, it cannot la* ninde(/i); bnt t'oi that |)nr|K>He, it 
 nmst have lu'en tiled at the jatehl by <i{;hl (j'clock on the 
 evening before the seal clay. And when- an answer was 
 lili-d on the seal dav, and notice ot motion to extend tln- 
 coiiiinon injunction tu stay trial had liceii ^iveii for that 
 day, bnt owing to the pretiHurc of business uii liic Court, 
 the motion was not heard till the next day, it was hchi by 
 Sir J. l.each that the answer was loo late to |)revenl the 
 ordir(i). And w where the answer was sworn on the day 
 iK'fore the seal, but owini; to the niisinforinalion of the so- 
 licitor, who did not know that it was a half holiday, and 
 that the Six (^'lerks' Oilice was not oj)en in the evenin|>', the 
 answer was not actually filed till early on the morning of 
 the seal day ; — on a motion bein|i made to have an onlcr 
 for the common injunction and attachment for want of 
 answer discharged, and that the answer might be coiisideretl 
 .IS filed on the dav preceding the seal, the Court refust-tl 
 the motion with costs (A). The princijde of the C^urt seems 
 to be, according to Bruce v. Wcbf/iD, that as the ortlcr 
 \'vv an iiijunction, or to exteml an injunction, or for an at- 
 
 { t ) llariiufii V. Uijon, ,MS. \'.C. (i) U'httfhoute ^. Hickman, I Siin. 
 
 lii July, 1840; S. C. 9 I-aw Journ. A. Stu. 102; aoil toe Thomptoit ». 
 
 N. S. 3rt5. Hyr,m, 2 Uc»». 15. 
 
 (^) Hi,ht.;, V. Uircl . 1 \ C-. v\ Ika ( k) Ibhothyn V. IkoXh, I Sim. &SlU. 
 
 i^h) Ibtd. ( ) 2 Mir. 471.
 
 CHAP. II.] MATTERS OF INJUNCTION. 385 
 
 tachment, is to be considered as made at the very earliest 
 moment of the seal day, the answer, in order to be used as 
 an objection against issuing these orders, must be filed on 
 the preceding day. But an insufficient answer will not be 
 o-round for resistino; a motion to extend. And in a case 
 where,before the motion was decided, exceptions were taken 
 to the answer, and then a further answer was put in, a mo- 
 tion to extend was granted, because the defendant, by sub- 
 mitting to answer further, admitted that the original an- 
 swer was insufficient, which is the same as if there was no 
 answer {m). 
 
 In a case where a motion was made to extend the com- 
 mon injunction to stay a trial coming on the next day but 
 one, and the answer was filed the same morning that the 
 motion was made. Sir J. Leach, V. C, refused to make the 
 order unless the answer was insufficient, on the ground that 
 the motion was made too late ; but his Honor having read 
 the answer, and being of opinion that it was insufficient 
 made the order («); and the bill and motion must make 
 the same case : thus where the bill stated that the plaintiff' 
 at law had proceeded to judgment, and sought to restrain 
 execution, a motion to extend the common injunction to 
 stay trial was refused (o). 
 
 10. As to extending the common injunction to stay trial 
 where it is necessary to have a commission to examine wit- 
 nesses, the rule of the Court is that when the time for an- 
 swering has expired, the plaintiff' may have a commission to 
 examine witnesses in aid of his defence to an action before 
 answer (/;). The object of granting the commission is to 
 collect evidence for the trial ; the consequence of which is 
 that jyrima facie the trial must not take place till the return 
 of the commission. On these grounds, where a commis- 
 
 (m) BishtOH v. Birch, 1 Ves, & Bea. 366. 
 (n) Mimnbigs v. Adamson, 1 Sim. 510. 
 (o) Thompson V. Byrom,2 Bea. 15. 
 ( J.) Noble V. Garland, I Ves. 377. 
 CC
 
 386 OF TUB PRACTICB IN [PAUT HI. 
 
 fiion hud been ipvnted to examine witnesiics abroail, the 
 uiirtwcr not being put in, an order extending; the coniinoii 
 iiijuiirtion to Htay trial till n«tuni of tlu* coiniuitiBion or 
 futthtT order wnti held regularly). Hut a commiHhion can- 
 not Ijc obtained before the defendant haa neglected to put 
 ill hiti uiiHwiT within the time allowetl by the practice of the 
 Court (r). 
 
 Mr. Daniell nuggenta that wince the order* of 18.W, the 
 Court, iuHtrnd of wiiitini; till tlu- di-fjMuliint in in conteinpi, 
 which t»in«"c thont* ortlcr* in n nnicli longer j>crio<l than 
 iK-furf, would probably niiikc an onlcr for u coniminHion 
 lo cxorninc witnc^seR, u|)on tlif pluiiitifV obtaining the com- 
 mon injunction to stay proccetJiiigrt at law, which, under 
 tlume ordcn*, hr mov now have, if the eUfendunt doe* 
 not put ill bin niiswci within eight days aflcr ap|>car- 
 nnce (5). 
 
 II. It is lo Oe observed, that the niotifin to extend in 
 pnuitidctl on the ronuiion initiiiction ; »*o that where a 
 plaiiitiH has no case to slay Iriul on the bill, he cannot 
 have the order to extend. Thus where a plaintifl'in equity 
 obtained the common injunction, the uiihwer being iiisuf- 
 hcieiit, jukI on the same day m«»vcd for leave to amend Win 
 bill, and that the defendant should answer the amendments 
 and the exce|>lions at the same time, and afterwards moved 
 to extend the injunction to stay trial, Lord Cottcnbam, then 
 Master of the Rolls, held that the injunction to stay trial 
 grows out of the cc»nimon injunction ; and as the plaintiff 
 by amending, admitted that he had not a case to stay trial 
 on the bill as it origiiuilly stood, he could not by amending 
 place himself in a better f?ituation'; and the motion was re- 
 fused with costs (/)• The case of llrown v. Hcinaiu) was 
 relied ujion, and the Court alluded lo it a» lui authority in 
 
 (9) lloxcdin V. Ho6^t, 2 Sn.iiist. (A 2 l».i.. rrict. 682. 
 268. >'Mir«</,2Myl.&K. 
 
 (r) CArnii'idfil V. Df /a ( ' . 1 
 Mad. -2**8. u. iw Jcr. 389.
 
 CHAP. II.] MATTERS OF INJUNCTION. 387 
 
 point. In a late case (x) where the same point occurred, 
 a case of Martin v. Mortlock, before Lord Eldon (?/), was 
 cited, in which it was decided that after reference of the 
 answer for insufficiency, order to amend, and for defendant 
 to answer amendments and exceptions at the same time, an 
 order to extend might be obtained. And on the authority 
 of this case the Vice-Chancellor held that the order to ex- 
 tend, in the case before him, had been regularly granted. 
 
 It must not, however, be overlooked, that the reasoning 
 on which Mellor v. Cresswell was decided, is not displaced 
 by either of the other cases ; and that although his Honor 
 the Master of the Rolls alluded to Broion v. Reina, as 
 an authority in point, his decision appears by the report to 
 have been grounded mainly on the reasoning. And in a 
 later case (sr) Lord Cottenham, C, is understood to have 
 adhered to the doctrine which he laid down in 3Iellor v. 
 Cresswell. 
 
 (x) Simesv. Duff, 8 Sim. 270, B. fol. 1584. 
 
 (i;) 1 New). Pract. 356 ; Reg. Lib. (z) Howard v. Cliffe, 3 Jur. 817, 
 
 cc2
 
 388 
 
 or TlIK I'liACTlCB IN 
 
 [pAin HI. 
 
 r'fl MTTT HI 
 
 (fft/ic JCffrct OH Jnjunctions vf ylmtmlmcnli ; and of 
 rrr icing an Injunction. 
 
 I. f.fttt tf Am^miwktHi vm tkt Cfm- 
 moH InjumrlttiH, htfott tkt Ordcr$ 
 fj May, IB3y. 
 
 3. AUfraiioii tfftrUtl bti iht Steomi 
 
 Ordtr of A/uy. 1839. 
 3. Pnutie* J\>rmtrlti ihal Amtmlmtnt 
 liid not yrtjuiltct a Sptcial In- 
 JiiuctioH. 
 ■I. fprmrr I'ruehct ot to amtndn.f,, 
 whfH Imjunction ktid hftm rt- 
 fntid, or diuolttd oh Mrrilt. 
 
 6. Ihird Ihder .]» May. IB39. 
 
 (i. Oburciiliom mi Datrik i. l)dti», 
 and I'rall I. Aichcr. 
 
 7. if re I oj Stcoiid Ihdrr of A/uy, 
 
 ]K3'J,on the i'ractictat to amend' 
 '"K <•/'"■ iJcr;i(«cii». 
 B. 0/ lU-AmendmrnU. 
 
 '). l^tt I. n«veatcrofl, and Hrown i. 
 
 Newall, and Vftct ,'J Third 
 
 Ordtr of May, IB3<t. en Caut rf 
 
 thu Salttre. 
 ll). U'liet* ImjHmrtifft •>. r p'ttvfd by 
 
 Ihr lUll. 
 II W'hftt luttpttoHi />(^> 
 
 IfrtHft irlurt Defendant puU im 
 Jfrther Amnt«r <-■».' f"- 
 
 Order to amend. 
 
 12. Kftct "/A 
 oJ Motion. 
 
 13. When Inju 
 
 14. Whttt .1m 
 
 mrntt, the Luuiu w tt' riant ihc 
 DitynluUon <<f lh« Injuneltom , 
 fiot to let it be dittnltrd, and lAm 
 nitT* to rtpite. 
 
 1. >\ HEN the common injuncli«.»n has been ol'Uiiiied foi 
 ill l.iulL of answer, it fiecjuently haj)j>cns that on the cuniin^ 
 in uf the answer, matter is disclosed by il which makca it 
 necessary to alter the bill by amendment. I'ormerly the 
 cflcct of amending the bill after havinj:; obtainetl the com- 
 mon injunction was to di.s])Iace the injunction, unless it 
 was sustained by the terms of the order, exprcs.«*ing that it 
 was to be without prtjudiru to the injtmction f«) ; and if 
 
 (rt) liliu V. Bcicatrfn, 2 Vts. \ I'ca. lOi.
 
 CHAP, III.] MATTERS OF INJUNCTION. 389 
 
 the injunction had been so lost, and tlie plaintiff wished to 
 obtain an injunction on the amended bill, it was necessary 
 to make a sjaecial application for such injunction (Z»). 
 
 Wiiether an order to amend a bill after the common in- 
 junction had been obtained, and before answer, without 
 prejudice to the injunction, was an order of course, or to be 
 moved for specially, was, before the orders of 1839, a point 
 unsettled by decision. And in a very late case, in which 
 the point was elaborately discussed by Lord Cotteniiam, his 
 Lordship appears to have inclined to the opinion, that it 
 was not irregular to obtain an order as of course to amend 
 after a common injunction and before answer, without ])rc- 
 judice to the injunction (c). 
 
 2. The practice on this point is now settled by the second 
 order of May, 1839, which orders " that the plaintiff in any 
 injunction cause, having obtained the common injunction 
 to stay proceedings at law, may, either before or after the 
 answer of the defendant shall be put in, and whether such 
 injunction shall or shall not have been continued to the 
 hearino; of the cause, obtain an order as of course for leave 
 to amend the bill without prejudice to the injunction; but 
 that such order shall contain an undertaking by the plain- 
 tiff to amend the bill within one week after the date of the 
 order, and in default thereof the order shall become void." 
 
 Accordingly in a very late case(<^Z), Lord Langdale, 
 M. R., has laid it down that an order to amend will not 
 prejudice either the special or the common injunction, and 
 that it would be so whether the words loithout prejudice 
 were inserted or not. 
 
 The application of this rule is not affected as regards a 
 special injunction, by the fact of a general demurrer having 
 been put in. It is regular notwithstanding the demurrer, 
 
 (/;) //(»ne V. TrafsiMi, 2 Sim. 85. (d) Wavhurlon v. London and 
 
 (<•) Ferrand v. Hamer, 4 My. & Blackicall Railway Company, 2 Beav. 
 Cr. 143. 253.
 
 MiO OF TUB PRACTICE IS [v.KUT MI. 
 
 to uiiieiul l)y an order of course, and •^"' '« "iilikIiiuiiI will 
 not |ii( |u<li«-i* till* 111111111*11011 (c). 
 
 3. It ^-i.i- ill' j.i.i" iM . iiKlcctl Ik-I<*i« III- ..itUr «'l lH3i>, 
 tliut, uftrr u tfteciai iiijunctiuii, ihc pluiiitiir tui^lit uiiicud 
 liiM bill by iiHitiun uf cuurac, witliuut jircjudicc to the iu- 
 jiincti«»n (/). The ruU- wan thiin luul duwn in Pratt v. 
 Archer, thut u motion to uuiciul witJtout |ir(jiidicc to uii 
 injunction wms u niutiun of courae, and lui^hl be made 
 without notice where the injunction hud \ivtu giunted on 
 the mrrits, ill »»lher wordrf, « In n it vvui* a h|Hciul iiij unc- 
 tion ; but that where the injunction hud imiucd on account 
 of delay, notice niUKt be ^iveii, and tlu,- unienduicnlit 
 stutetl (</). 
 
 And on this ground, where an injunction to t>tay procoed- 
 in«;s at law has been obtained on the merits (/i), or l>eing 
 iirst obtained as an order of course, hul^ been continued oil 
 the merits, an application lor leave to amend it> not a 8{)C- 
 cial application, and does not prejudice the injunction. 
 Therefore, hince the 3 ix. 4 Will. IV. cap. U4, it should l>c 
 made to the Master, and not to the Court (i). 
 
 But where the order ahked is to be of a 8|)cciul cha- 
 racter, such as leave to amend, without prejudice, Buch 
 parts of the bill as are founded on a mibtake not atfccting 
 the iiurits, the application should be made to the Court, 
 because it asks for leave to amend, and something more, 
 uhieh the Muster has not, under the o <k 4 W dl. I\ ., cap. 
 U4, jurisdiction to <;rant (A). 
 
 4. Before the orders of tlic !'tli March, lt>3U, it was 
 
 (<) Warhurton V. l.ond. and Tilaek- ( ^- , The taller pirt of the rule, a* 
 
 trail Rtiiluaij Com/xiny, 2 Ikav. 253. we have seen, is eiiioguitlied by the 
 
 (/) Maion y. Murray, Dick. 536 ; second order, 1839. 
 
 I'icliering v. Ilitnu)n, 2 Sim. 488; {h) King ?. Turner, 6 Mzil. 255; 
 
 Pratt V. Archer. 1 Sim. & Stu. 433. and »cc 2 Vc». at B. .331. 
 
 See the note in 2 Sim. 488, that in (i) Wi^odroffe v. DanUI, 8 Law 
 
 this case the injunction was in fact Journ. 16. 
 
 special. {k) Rms v. Edwardt, 1 Keen, 465.
 
 CHAP. III.] MATTERS OF INJUNCTION. 391 
 
 held, after considerable conflict of decision (I), that where 
 the common injunction obtained for default of answer has 
 been dissolved on the merits on the coming in of the 
 answer, or where it has been moved for and refused on the 
 answer; and then the bill is amended, or a supplemental 
 bill is filed ; the plaintiff cannot have injunction until the 
 defendant has made default ; and then when the defendant 
 is in default, it must be obtained on special application, on 
 affidavits verifying the amendments (m). 
 
 But a distinction was taken, that where no injunction 
 was obtained on the original bill, but the plaintiff on the 
 cqming in of the answer amended, then on the defendant 
 making default in answering the amended bill, the common 
 injunction was obtainable as an order of course. This 
 point was decided by Lord Erskine in NeltJiorpe.v. Law{n) ; 
 and although this decision was disapproved by Lord 
 Eldon (o), it was followed in a very late case {p). 
 
 5. By the third order of 1839, it is ordeied, " that in 
 case an injunction to stay proceedings at law shall be 
 prayed for by the bill, and shall either not be obtained, or 
 having been obtained, shall have been dissolved upon the 
 merits stated in the answer, and the plaintiff" shall after- 
 wards amend his bill, and the defendant shall not plead 
 answer, or demur to the amended bill within eight days 
 after appearance, the plaintiff" shall be entitled to move for 
 an injunction, upon affidavit of the truth of the amend- 
 ments." 
 
 This order appears to confirm the practice settled by 
 the cases of Vipan v. Mortlock, and James v. Downs, and 
 
 (l) Travers v. Lord Stafford, 2 v. Boscauien, 2 Ves. & B. 101. 
 
 Ves. sen. 19; Amb. 104; 11 Ves. (n) 13 Ves. 323. 
 
 569; Lady Markham V. Dickenson,! (o) Bliss v. Boscawen, 2 Ves. & 
 
 Ves, iun. 20; Edwards v. Jenkins, B. 102; Lord Eldon in that case er- 
 
 3 Br. C. C. 425 ; and see Eden on roneously treats the decision in Nel- 
 
 lujunctions, 124, et seq. thorpe v. Law as his own, 
 
 (m) Vipan \.Mnrtlock,2Mer. 419; (p) Statham v. Hughes, 2 Sim, & 
 
 James \. Loivns, 18 Ves, 522; Bliss Stu, 382,
 
 392 OF TUB rRACTICK IJ« [PAllT 111. 
 
 efltH*tM thiM rhan(;e : ihnt Hlicrrtti Ijcforr, a ilffeiulant wns 
 iu>t II) ilrfault for >«uiit «>r (iiiiiwrr to an uiiu-iuU-d bill till 
 tivr wirkH uflrr u|i|M>untiicr, and r(jiiM><|uciitly the |jluiiititi 
 wan lU't till tlu* rx|iirutioii u( timl Urnc cutiUctl tu iiii in- 
 junction, lir may now move for it in cij;ht tluyii uflcr a|>- 
 |M«tinuur, if the ilrfrnilnnt i« then in ilcfuult. Whether 
 tlif urihr refrrntl to uill Ik* held to :i|»|dy to camrH of the 
 chiHj« of SttilhttiM V. Iluijhei, Mrhrro no injunction hn* lictii 
 nmve<! for on the t)n;^iiinl hill, HrrmH queHdonahle. 
 
 Mr. Daiiult oliHervih on thin order, that the iiijunrli<in 
 '^nintetl under it in i(|M'cial, and will Ix: till anHuer or fur- 
 ther order; and that roiiHi<|uently the defendant will U* 
 allowed to move hefore answer to dinsolvc it, n|>on ttfli- 
 d.iMi III i< |>ly to that ii|>oii uliich the injunction h&H l>o<'n 
 planted ; ami that in sui h aflidavit, lie may hIiow, it 
 g«'ems, as cause for dissolving; the inj unction, that the 
 matter introduced hy way of amendment was in the know- 
 Icilge of the pluintitl at lii<- lime when he filcti his originul 
 bill. 
 
 fi. It hns heen licld under the old practice, that the 
 mere ohlainiiii; an order to ntiuntl would ikjI of ibwlf din- 
 solve the iiijuiulioii ; and that, unless the recortt was nc- 
 tiiallv altered, the injunction was not 1^000(7). 
 
 It has hcen also laid tlown under the old praciuc, that 
 a plaiiititldesiriiij;, after a common injunction ohtained on 
 the ground t»f delay, to amend without prejudice, ought to 
 jj;ive a iiotiio of motion to the (h-fendant, and state the pro- 
 jtosed aiiK ndmeiits (;•). The t«o fore'^oing autli<iritie>* do 
 not aj)j)ear to lla^c• any ajtplication since the second order 
 of 1839. 
 
 7. The general order k ftircd to(«) does not in terms 
 touch the cases where the answer is excepted to. Pn-fore 
 
 (9) Ddrii V. /Xiiij, 2 Sim. 51.0. 
 
 (r) /Vail V. Archer. I Sim. \ .'^lu. 413. 
 
 («^ Secoixl Order of Mav, 1839.
 
 CHAP. III.] MATTERS OF INJUNCTION. 393 
 
 that order it had been lield in numerous cases, that where the 
 common injunction had been obtained for default of answer, 
 and on the answer coming in, exceptions to it had been sub- 
 mitted to or allowed, or not answered, the order to amend, 
 if obtained, was of course without prejudice (O^ 
 
 It does not appear to be settled whether under sucli cir- 
 cumstances it was an order of course to amend without 
 prejudice, or whether the application must have been spe- 
 cially made. In Adney v. Flood it was said, that the 
 motion for leave to amend must be specially made ; but 
 that if the order is obtained, it is of course without preju- 
 dice, whether those words are inserted or not. In Dipper 
 V. Durant, on the other hand, it was held to be a motion 
 of course to amend after exceptions taken, and not an- 
 swered. But if the exceptions had not been argued, the 
 motion to amend must have been specially made; for it was 
 held that it was irregular to obtain an order to amend the 
 bill till the exceptions had been disposed of; because by 
 the exceptions the defendant was deprived of moving on 
 his answer to dissolve the injunction, and therefore the 
 plaintiff should not indirectly be permitted to give himself 
 an opportunity of amending without prejudice to the in- 
 junction, without having a special order for that purpose (?0- 
 But although the second order of 1839 in terms does not 
 apply to these cases, it seems in substance to apply to 
 them. For since the order gives liberty to amend as of 
 course without prejudice, whether before or after the 
 answer, it seems immaterial to consider whether the de- 
 fendant has admitted his answer to be no answer by sub- 
 mitting to the exceptions, or whether the answer is to be 
 treated as a full answer. In either case the plaintiff may 
 under the order obtain an order of course to amend without 
 prejudice. 
 
 (t) Adney v. Flood, 1 Mad. 449 ; Ashton, 3 Ves. k B. 144. 
 Maijnev, Hochin, Dick. 255; Dipper ('<> Dixon v. Redmond, 2 Sell. & 
 
 V. Durant, 3 Mer. 465; Sharpe v. Lef. 515.
 
 394 OP THE PnACTICE IN [PAHT HI. 
 
 8. The onlera uf 1H3U du not either in tcrnifi refer u> 
 nvuineiuiiiU'iitM ; on thut |>uii)t it will pruljuhly be h<Ui 
 thill the olii [inictico reinaiiiK iii furce, uiid thut rf-uiiMMul- 
 inciitM without projuilico Ut iho cuimnuii iiijuiiction will tmly 
 Im< ullowitl oil ' phcatitiii, thut the Court iiiuv < 
 whether they m m.iI, uiul oil |>ruor by uliitlu\it Ui it 
 they rchitc to fact* of whuh the phiiiititi had nut n know- 
 lodge, cimhhiig him to hniig theiu uii the rcconi »>ooiier(jr). 
 
 9. Ikfore the third order of 1K31> it wum held, that tJic 
 tenth order «)f IhiiiJ, ho fur an n-^iirdrd iniuiictioiiH, did 
 not u|i|)ly ( xccpt to ii)|iiiictioiiH to he i^niiiti <1 on ongiiiol 
 hilU ; roiiHC(|ueMtly that the itluiiitiH' could not have an 
 iiijitiictioii fur dofnull on un amended bill, till five wcckv 
 afttr u|)|)caniiu'c iu a town ruutic. uiid he\eii weekn in a 
 country iau8e(»/), if the unu-ndment wah niude n/fcr a(>- 
 |Huruncc; but if the uiiicndnient wuh made before u|)|>car- 
 unro, that rule did not apply (x;- 
 
 Hut now by the thinl onl« r of 1839, it appcafH imina- 
 tenal whelhir the amendment is made lK»fore or after 
 a|)|Manmre : in either cum-, if the deb ndnnt makcH default 
 in plcadni;.'. answeiini; or demurriny:, wiihin eij^bt <luys alt<;r 
 appearance, the pluintit] may huvc un injunction on liiH 
 amt ndejl bill, on afVuiavit <.f the truth of the amend- 
 ments (,a). 
 
 10. The operation of the third order of May, \H'',ii, it 
 will be observed, is confined to the cases where the injunc- 
 tion is prayed by the ori<jinal bill. Therefore it is pre- 
 sumed that if n bill does not pray for an injunction at all 
 and is amended, the case will fall wiihin the rule of Lee 
 V. Ravt-nscroft, and that the plainldf will not be entitled 
 to move for an injunction on the amended bill, until 
 
 (r) Sharpt v. AihUm, 3 Vcs. & II. (x) Broirn *. StKall, Cooke'i Or- 
 
 144. Jen. 78. 
 
 ( y) Lit V. Uavinseroft, 6 Sim. 474. (a) Sec ihird order, 9th May, 1839.
 
 CHAP. III.] MATTERS OF INJUNCTION. 395 
 
 the time for answering the amended bill has expired. But 
 where a bill prayed for an injunction in the prayer, but 
 did not in the prayer of process, and an application for an 
 injunction on the merits confessed in the answer had been 
 on that account refused, the bill being afterwards amended 
 by adding a prayer for an injunction in the prayer of process, 
 and the motion for an injunction on the merits renewed 
 almost immediately, Sir L. Shadwell, V. C, said the case 
 was distinguishable from those which had been cited, be- 
 cause the injunction had been prayed for in the original 
 bill, and therefore he should hear the motion on the 
 merits (b). 
 
 11. It was decided in an early case, where the plaintiff, 
 having obtained the common injunction, excepted to the 
 answer, and the exciffptioa-.vvas allowed ; and he then ob- 
 tained an order to amend, and that defendant should 
 answer exceptions and amendments together; — ThiU if the 
 defendant puts in a further answer before the plaintiff has 
 obtained the order to amend, and for the exceptions and 
 amendments to be answered at the same time, the injunc- 
 tion will stand or fall on the original bill and the answer 
 to it. But that if the defendant lets the order to amend 
 be obtained, he suffers the original and amended bills to 
 become one record, and must then answer both at once (c). 
 In other words, if the defendant answers the exceptions 
 before the plaintiff obtains the order to amend, &:c. the 
 defendant may have the advantage of the order to dissolve 
 nisi on putting in his answer to the exceptions, without 
 reference to the question whether his answer to the amend- 
 ment is sufficient or not. And it appears by a late case, 
 that the defendant may put in a further answer till the 
 order is actually served, and may on such further answer 
 move for the order nisi. Notice of the order to amend, &c. 
 being applied for, or even, it seems, of its being actually 
 
 (6) Wood V. Beadell, 3 Sim. 273. (c) Mayne v. Hochin, Dick. 265.
 
 396 or Tin: rnACTicF in [taut in. 
 
 made, will nut, nor will any tiling Hliurl uf (lie unli-r iM'int; 
 a«'tiially Hir\<<l, (>m vciit hiiu (rum doiiifj »o(c/). 
 
 1 J \N lirn u nuticc of motion fur an injuitclion is i;iven, 
 an uini ii)lini-iit of (hr Itill iimK r an ofilrr of ciiiirM* waiven 
 Hui'li ntttit-i* ; tind if tlir pliuntiii wiNJirn (u liuve iiiH notice 
 of iiiDtion, Ik* hIiouIiI iniikr ti M|M*<'i{il upplicntion for linive (o 
 anii-nd witimnt prrjiidirc ti> it(r). And after iiincndin'/ an 
 injiiiutioii l)ill, It 1^ irrr<^iilur to niovr on a notice of motion 
 f;iv(*n l>efnr(' tlir umrndmcnt, IxvauHc such notice it a 
 notice on II record no lon^^er in e\istcnce, and on the cxiBl- 
 ing rucurU there in iiu nolicc of motion ^/i, 
 
 IM. ^^'ll(■rc an injunction has been oljlaincd iijK)n an 
 answer IhKI insutlicient hy the Master, and aflcrwardx tin- 
 Court upon exceptions to the Master's report holds the 
 answer suflicient, whereby the injunction i» gone, the in- 
 junction will not he revived merely Ixrcause a rehearini; of 
 the Master's ie|M»rt is j)ondin^ (//), And in a case in Ire- 
 land, where exceptions were not lilt <! m time to show cause 
 aL;ain>t disxilvini; the injunction, and it was accfjr<lin;^ly 
 di>iso|ve(l, hut e\ce|)tions were aflerwar(l> filed and allowed, 
 a lUi'tioii l)ein<4 made thereupon to revive, the Court said 
 the injunction was regularly i;<»iic, ami could not be revived 
 on that ground i/i). 
 
 14. If the hill charges that by certain Ijooks and jwpers 
 contained in a schedule to the answer, and admitted t«» Im- 
 in the defendant's possession, ground for an injunction will 
 a|»j>car, and on a motion to dissolve the common injunction, 
 it is allowed to stand to a certain time for the purpt)8c of 
 inspecting those (U)cmnent«, the pri>i)cr course i» not to let 
 
 (d) I^iiburn V. Gre*ii,2 Ru&&. 677 ; .VI. 
 
 and sec ihc cases cited 1 Danicll (g) Scott v. Machinlt-Ji, I \'e\. K 
 
 Pracl. 520, n. (*). Ilea. 303. 
 
 (f) Martvn ». Just, 8 .«^im. 199. (h) Walktr v. O'Sultii^n, '2 Mol 
 
 (f) C<atiliuaile\,Uippon,] Ikav. 36(J.
 
 CHAP. 111.] MATTERS OF INJUNCTION. 397 
 
 the injunction be dissolved and then to amend the bill by 
 introducing the matter thus disclosed, and to move to 
 revive the injunction; but the plaintiff should oppose the 
 dissolution of the injunction on the matter thus discovered, 
 for the matter so referred to in the schedule is part of 
 the answer, and on that the Court would decide whether 
 to sustain or dissolve the injunction (i). 
 
 (/) Powell V. LasHallette, Jac. 549.
 
 398 or rne practice in [imht iii. 
 
 CHAriKK IS. 
 Of lUcaeh of 9m In'fumti'iH and iU i'onifijHrnceM. 
 
 . (\'t%tt-ji.f':,'f .-.f firrarh rf lit '.(■ 
 
 C«««Mi /^HMliffN. IrrtguUr Order u $t> 
 
 6. Utn «i to »A«I aMtfiiaU to /Ji . — •■«< mtut t< oUytd. 
 
 1. jVN iiijuncliuii opcniti'H from the dale of the or«lrr 
 l>oing nuide. mid nut inrrcly from the time uf iU Immiij^ 
 seaJe<l, ur even from the time of itx )x.'ing drav^n up (a). 
 And therefore where an injunction had l>ecn obtained t'l 
 restrain \va»tc, and l>€fore tlie order wa» dniwn up, not in 
 of its having been obtained and of its pur[>ort was served 
 on tljc defendant, who nevertheless continued acts of wa«te, 
 he was lield guilty of a breach of the injunction. And the 
 Lord Chancellor intimated that he would sign the warrant 
 for committal, provided there had been no delay in getting 
 the order drawn up, scaled and served (A). 
 
 Tm bo guilty of a breach of injunction, the party must 
 have notice of it ; but although rrffultirh/ notice BJionM ' > 
 served by the plaintitl, yet if the difcndant or his attorn' \ 
 is present w hen Uic orderis pronounced (c), it is a breach of 
 the injunction afterwards to take the plaintiff in execution. 
 
 («) S«« /{ddray v.BuAop, 3 Mad. \es. S. D. 149. 
 
 •2M. (f) Anon. 3 Aik. 567 ; Seoil ». 
 
 (b) Vanuindau v. Hot*. 2 Jac. Jc lUcher, 4 Price, 346, Pim^l *. FW- 
 
 W. 264; aod wc A'lmpton v. Eiv, 2 '"f, \h'-V. 116.
 
 CHAP. IV.] MATTERS OF INJUNCTION. 399 
 
 Or if the defendant, by being in Court at the hearing of 
 the motion, is apprised that there is an order, he shall not 
 avoid its consequences, by leaving the Court before the 
 order is actually 'pronounced {d). 
 
 In Kimpton v. Eve (e), it was held that it is a breach of 
 an injunction to proceed to sale after personal service of a 
 notice that an injunction against selling has been granted, 
 where the party so proceeding, admits that he believed the 
 order to have been made. And it is not necessary, to con- 
 stitute a breach of the injunction, that the injunction should 
 be actually served. 
 
 So if a party have by himself or by his attorney, notice 
 in any other way of the fact of an injunction having been 
 granted, though it should not be regular notice, it is a 
 breach of the injunction to disobey it(/). But if the 
 plaintiff is guilty of delay in getting the order drawn up 
 and served, the Court will not treat the defendant as in 
 contempt, although he should have been present at the 
 hearing of the motion {g). The distinction seems, that the 
 defendant shall not escape the process, if he has heard the 
 motion, merely by turning his back upon the Court so as 
 not actually to hear the order pronounced ; but that on 
 the other hand, the order is not to be kept suspended over 
 his head unenforced for an indefinite length of time (A). 
 
 It appears by an old case, taken from Lord Notting- 
 ham's manuscripts, that service of an injunction by serving 
 a copy and showing the original, without allowing exami- 
 nation of it, is regular {i). 
 
 2. It is to be observed also, that one may be guilty of 
 a breach of an injunction by aiding and abetting those who 
 are committing an act inconsistent with it, although he 
 
 (d) Heartiv. Tenant, 14 Ves. 136; (g) James v. Downes, 18 Ves. 522. 
 Skip V. Harewood, 3 Atk. 564. (h) Vide Lord Eldon's observations 
 
 (e) 2 Ves. & B. 349. in James v. Downes, 524. 
 
 (J") Lawes v. Morgan, 5 Price, (i) Woodward v. Earl of Lincoln, 
 
 518; Powell v. Follett, Dick. 116. 3 Swans. 626,
 
 400 OF THE TRAt TICK IS [I'AKi 111. 
 
 nlKUild not ucluully takt- purl lit bucli uit. 'ritiis wluiv 
 ihe cuiitnit wuh l>clttctii u college ut Oxloril uiul tlit* |KX)r 
 |M*u|*lc ill tlic iuM^hl>oiirliu4Ml, u» tu the ri<;ht uf cutting 
 winmI III u iirlaiii wlkhI, niitt an iiijuncliuii iiutl Ixm.*!! grunted 
 tu rt^Atruiii A. mil] Iiia Acrvaiitjt mid wurkiucii, kc. fruin 
 cuttini; llu* witud, it wuh hcltl n brcucli oftlir iiijiiiicliuii in 
 A. to l>r prriMMit uiiil nrliiii^ u» u leatlrr, wIkmi u ^rt-ul 
 iiutubcr of the |Mx>r |k«o|>U- drove away the wrvaiit* of the 
 college and cut wood, although A. not only did nut uc- 
 luullv uHjtist, but UM'd wi.rdh of counwl t<> the |>oo|)Ic, 
 (hAHiiathnt; lh« m frjuii viuU-iice. The ground \vut», thul rc- 
 iiuiiiiini; and acting an a U'uder, and not actually interfering 
 til prevent the iiet>*, he \snn infert-nlialiv aiclmi,' and a>*hiht- 
 iiiglA). And the jniisdicli**!! heeiiis to have lx;fii slretchctl 
 still further in an old cane already referred to(/), from 
 uhuh we may collect ihat tlwie may l>e a contempt coin- 
 mitteil even l>y a.sMslinj^ in the oliicial act of a |»erh<ui act- 
 ing under lawful authority. In the caw: to which 1 refer, 
 it was held that a breach ol an injunction t«j fjuiet |>ot*se»- 
 sion, was commillcd where the party enjoined had a.shibtcd 
 a justice of the peace in making restitutitm on a forcible 
 eiitrv . 
 
 '.]. It IS hnwtvci 110 breach of an injunction, for a |)ersoii 
 not a party to the suit and who has not ac(|uireil a rii^lit 
 juudcntc lite from any one as a party, to exercise a right 
 w liicli he had anteceilently to the suit (m). Nor is it a breach 
 of an injunction staying execution with leave to proceed 
 to judgment, if the defendant takes out w scire fac'umjuarc 
 c.it'cudo uofi, Ix'causc that is only ])roccedin2: to judg- 
 ment (»i). 
 
 In an old case, where an iiijunctiuii was urantetl against 
 the (Utonicy of the defendant to restrain him from pr(»- 
 
 {k) St. John's College v. Carter, B (m) liovtle v. Slantev, 2 E^j. Ab. 
 
 Law Journ. 218. 5*28. 
 
 (I) M'tsrltcard ». Earl oj Lincoln, ( n) Huiil.eij v. 3f<Trti, ibtd. 
 
 3 Swans. 6-16.
 
 CHAP. IV.] MATTERS 01-' INJUNCTION. 401 
 
 ceeding at law, it was held a breach of the injunction for 
 the defendant to proceed (o). 
 
 4. Where the common injunction has been obtained 
 before the declaration in the action at law has been de- 
 livered, the injunction stays all proceedings; whereas if 
 the declaration has been delivered, the injunction stays 
 only execution, leaving the plaintiff' at law at liberty to take 
 all such intermediate steps at law as he is in a condition 
 to take (jj). 
 
 In the first case, therefore, it is a breach of the injunc- 
 tion to deliver a declaration (q). This appears to have 
 been formerly doubted, on the ground of a proviso in the 
 order for an injunction, to the effect that the defendant is to 
 be at liberty to call for a plea, and to proceed to trial; and 
 for want of a plea, to enter up judgment. But these words 
 are not to be construed that every man who thinks proper 
 to be a plaintiff* at law, should have liberty to go on to 
 demand a plea ; but are only to be applied to a party who 
 has antecedently to the injunction put himself in a position 
 to go on to demand a plea at law (r). And therefore where 
 a party had delivered only a conditional declaration at law, 
 that was not held the commencement of an action ; and 
 consequently the common injunction having been obtained 
 against him, he was held guilty of a breach of the injunc- 
 tion, by obtaining, after bail excepted to and not justified, 
 a rule on the sheriff" to bring in the body of the plaintiff" in 
 equity {s). A fortiori where there has been no declaration 
 at all, as in a case where the plaintiff" in equity had obtained 
 the common injunction after four proclamations under a 
 writ of exigent, and then the plaintiff' at law sued out a 
 writ of allocatur exigent, to compel the sheriff" to make a 
 
 (o) Segewickv. Redman, CsiTy, 44. (q) Mills v, Cobbij, 1 Mer. 3; and 
 
 (p) Anon. 2 Eq. Ab. 529; and see also 3 P. Wms. 147. 
 
 see Smith's Pract. 610; 3 Uan. 281, (») Bullen v. Ovey, Hi Ves. 141. 
 
 365, and the cases there referred to. (s) Ibid. 
 
 D D
 
 402 OF THE PRACTICE IN [PART III. 
 
 fifth proclamation (t). It may perhaps be thought strange 
 that the point should ever have been raised, as it seems 
 clear that liberty to demand a plea, must mean liberty to 
 take that particular step at law constituting the demand of 
 a plea, and not liberty to do some other incidental act. The 
 language of Lord Macclesfield, in a case in P.Williams (w), 
 is referred to, it is true, in support of the doubt. In that 
 case his Lordship said, that if it had not been for some 
 resolutions to the contrary, he should have thought that 
 the delivery of a declaration would be no breach, because 
 by the terms of the order the plaintiff is at liberty to pro- 
 ceed to trial, and the delivery of a declaration is an incident 
 without which there can be no trial. But to these obser- 
 vations it may be replied, that if that were the construction 
 of the order, we should impute to it a very inaccurate use 
 of terms ; for the term plaintiff would be very inaccurate 
 as applied to a party who, not having commenced an 
 action, cannot properly be called a plaintiff; and the words 
 proceed to trial, seem of themselves to imply that some 
 previous step has been taken. 
 
 5. It is also a breach of an injunction staying trial, to 
 give notice of trial after that inj unction has been obtained ; 
 for as a plaintiff in equity who has obtained the common 
 injunction, is not compellable to go to trial till he has seen 
 the defendant's answer, it is not reasonable that he should 
 be compelled to prepare for trial before he has seen such 
 answer (u). Where an award has been made a rule of a 
 Court of law, that has been however held a commencement 
 of the proceeding at law ; therefore an injunction obtained 
 afterwards, only stays execution of it ; and it is no breach 
 of the injunction, to obtain a rule to show cause why an 
 attachment should not issue for non-performance of the 
 award {x). 
 
 (t) Marsack v. Bailey, 2 Sim. 6c {v') Bird v, Branckcr, 2 Sim, &cSi\i, 
 
 Stu. 577. 186. 
 
 (it) 3 P. Wms. 147. (x) Franco v. Franco, 2 Cox, 420.
 
 CHAP. IV.] MATTERS OF INJUNCTION. 403 
 
 Where an injuaction has been obtained a^^'ainst a plaintiff' 
 at law, It is a breach of the injunction if he gives notice of 
 declaration at law against the bail of the defendant at 
 law, after the order has been made, although before it is 
 served (?/) ; but it is not a wilful breach, and therefore not to 
 be punished by commitment ; but the attorney of the plain- 
 tiff at law will be ordered to pay the costs. 
 
 In an old case it was held, that if the sheriff has levied 
 mider a judgment and execution, and after that, the defend- 
 ant at law obtains the common injunction, it is a breach of 
 that injunction to attach the sheriff and receive the money. 
 But the Lord Chancellor said it would be different if the 
 sheriff had paid it voluntarily (2). This decision is, how- 
 ever, supposed to be the one doubted by Lord Eldon in 
 Franklyn v. Thomas ia). 
 
 Where, however, legal process had been put into the she- 
 riff's hands before the issuing of any injunction, and after the 
 issuing of the common injunction, the plaintiff at law, being- 
 applied to by the sheriff for further instructions, did not 
 stop the process; it was held that refusing to countermand 
 the writ, was an actual continuance of the order previously 
 given by the plaintiff at law to the sheriff, and was a con- 
 tempt (J)). But in this case the Court, though holding it 
 contempt, would not make an order of committal, but or- 
 dered the plaintiff at law to pay the costs of the motion, 
 and to lose the benefit of any proclamation made subse- 
 quently to the service of the notice of motion to commit. 
 
 So it is a breach of an injunction staying proceedings at 
 law, to lodge with the sheriff an attachment for non payment 
 of costs, although such costs may have been actually taxed 
 before the issuing of the injunction. And though the Court 
 should see that if the circumstances of the case had been 
 fully explained to it at the time when the injunction was 
 
 (y) Leonard v. Altwill, 17 Ves. 385. Chanc. Pract. 274, n. (/). 
 
 (s) Axe V. Clarke, Dick. 549. (h) WooiUey v. Boddington, 9 Sim, 
 
 (a) See 3 Mer. 234; and 2 Mad. 214. 
 
 dd2
 
 404 OF THE PRACTICE IN [pART III. 
 
 granted, it would not have been so extensive, it is never- 
 theless a breach ; but in such a case the Court will, as 
 in the last case, refuse to commit the defendant for con- 
 tempt, and will content itself with making him pay the costs 
 occasioned by the breach, and by the motion for commit- 
 tal (c). 
 
 So if a creditor proceeds at law against an executor, after 
 notice of a decree against the latter to account, it is so far 
 a contempt of Court, that, upon a motion for an injunction 
 to restrain further proceedings at law, the Court will refuse 
 the creditor the costs of the further proceedings at law, and 
 the costs of the application id). This is in another form the 
 rule already stated, that on a motion in a creditor's suit 
 to restrain the creditor, he will have his costs at law until 
 notice of the decree in equity, but not further ; and the 
 costs of the motion will depend upon whether he had then 
 notice of the decree. 
 
 6. It must be observed, that although the common injunc- 
 tion obtained before any proceedings at law are commenced, 
 stays all proceedings at law, the party entitled to that ad- 
 vantage may lose it by laches. Thus in a case where the 
 cou^mon injunction issued on the 2 1st February, and de- 
 claration in ejectment was served on the 19th May follow- 
 ing, and the plaintiff in equity appeared, and pleaded to the 
 action and took other defensive steps, and suffered notice of 
 trial to be given; and never gave notice to tlie plaintiff at 
 law that he was in contempt till three days before the 
 opening of the commission ; Lord Eldon refused to make 
 any order on a motion to commit the defendant for con- 
 tempt, and gave no costs on either side (e). 
 
 7. In an early case(/) Lord Hardwicke took a distinc- 
 tion between the case where bail is put in above by the de- 
 
 (c) Varlinglon v. Booth, 3 Mer. (e) Mills v. Cohhy, I filer. 3. 
 
 140. (/) Stone v. Tiiffin, Amb. 32. 
 
 ((0 Curre v. Boivyer, 3 Mad. 456.
 
 CHAP. IV.] MATTERS OF INJUNCTION. 405 
 
 fendant at law, and where it is put in below. In the first 
 case, lie said an injunction to stay proceedings against the 
 principal extends to stay proceedings against the bail, be- 
 cause in that case no proceedings can be taken against 
 the bail until they have been taken against the principal. 
 But that when the bail is put in below, the plaintiff at law 
 has his election to proceed against either ; the order, how- 
 ever, made in the case was to stay proceedings on the bail 
 bond, although bail liad been put in below. And the 
 practice is now to disregard Lord Hardwicke's distinction, 
 and to treat an injunction to stay proceedings against the 
 principal, as extending to stay proceedings against the 
 bail ((/). 
 
 But if there be proceedings against the obligor of a 
 bond and his surety, and the principal obligor files his bill 
 without making the surety a party, and obtains the com- 
 mon injunction for want of answer; it is not a breach of 
 the injunction to issue a capias against the plaintiff and 
 the surety, provided instructions are given to the sheriff's 
 officer only to take the surety ; for although in point of 
 form, issuing the writ is a proceeding against the plaintiff 
 as well as the surety, substantially it is only a proceeding 
 against the party against whom there is no injunction (A). 
 
 And where the obligor of a bond filed his bill for an in- 
 junction to restrain the obligee, assignee, and others from 
 proceeding at law upon the bond, and the common injunc- 
 tion for want of answer was obtained, but issued only 
 against the obligee, his counsellors and agents, and did not 
 name the assignee, Lord Lyndhurst thought it a question 
 of considerable doubt whether the assignee was bound by 
 the injunction, the action not being brought with the privity 
 of the obligee, (i). 
 
 8. As a breach of an injunction is a contempt of the Court, 
 
 (o-) Leonard v. Alhvill, 17 Ves. (/») Chaplin v. Cooper, 1 Ves. & 
 
 385 ; in tliis case it does not appear Bea. 16. 
 
 whether bail was put in above or below. (i) Montague v. Hill, 4 Kiiss. 128. 
 And see I Ves. & Bea. 19.
 
 406 OF THE PRACTICE IN [PART III. 
 
 the consequence is liability to be committed to prison for 
 the contempt. Where an injunction is to do a thing, and 
 the party neglects or refuses, the course to compel him is 
 to move that he shall do it by a particular day, or stand 
 committed; but where the injunction operates strictly by 
 way of restraint, as where an injunction had been granted 
 to restrain a party from ploughing up a rabbit warren 
 further than was necessary for the sustenance of the rab- 
 bits, a motion that the defendant shall show cause why he 
 should not stand committed for breach of the injunction is 
 irregular. The proper course is either to move that the 
 defendant be committed for breach of the injunction ; or 
 else to move that he be committed, unless he show cause 
 at a future day to the contrary. If the first course is 
 adopted, the motion must be made on personal service of 
 notice of motion (A). Service on the defendant's clerk in 
 Court will not do by itself (Z), and is unnecessary when 
 there is personal service {m). In Ellerton v. ThirsJc, Lord 
 Eldon is reported to have held that the order cannot be 
 made, unless the original writ of injunction is brought into 
 Court. But in a very late case, Lord Cottenham thought 
 a party having notice of an injunction, and being guilty of 
 a breach of it, may be committed without production of the 
 writ, observing that he did not think Lord Eldon could 
 ever have laid down such a rule (%). 
 
 (/v) Angerstein v. Hunt, 6Ves. 488. construction of Lord Eldon's decision 
 
 (i) Ellertnii V. Thirsk, 1 Jac. & W. it is submitted that Lord Cottenham 
 
 376. addressed his observation. It is con- 
 
 (m) Bowdler v. Bawdier, 9 Law ceived that the decision in Ei/erfon v . 
 
 Journ. N. S. 394. Thirsk only goes to this extent, that 
 
 (n) M'Neil v. Garratt, i Craig & where the writ for an injunction has 
 
 PhiL 108. If would seem, from the issued, it ought to be produced on a 
 
 language of Lord Cottenham in motion to commit for contempt of that 
 
 M'Neil V. Garratt, that it must have injunction ; and taking this view of 
 
 been argued in that case that in Eller- the case, the decisions in Ellerton v. 
 
 toji V. r/iu's/c Lord Eldon meant to lay Thirsk and M'Neil v. Garratt seem 
 
 down the rule, that a party cannot be perfectly in harmony ; as all that 
 
 punished for disobedience to an order Lord Cottenham decided in the latter 
 
 till afterthe writ has issued. And to this case was, that according to the esta-
 
 CHAP. IV.] MATTERS OF INJUNCTION. 407 
 
 If the second course is adopted, then the defendant is 
 personally served with the order 7iisi, and the plaintiff, at 
 the proper time for showing cause, moves to make the order 
 nisi absolute (o). 
 
 9. And here it may be observed, that although an in- 
 junction should have been irregularly obtained, still it is 
 the order of the Court, and must be obeyed (p). The 
 proper course is not to treat it as a nullity, but to apply to 
 the Court to discharge it for irregularity {q). It has been 
 lately held in a case in Ireland, that to support a motion 
 to commit for breach of an injunction, the affidavit must 
 specify the particular act constituting such breach. A gene- 
 ral allegation that the defendant has violated the order is 
 not sufficient (r). 
 
 blished practice, a party is bound by (p) Woodward v. Earl of Lincoln, 
 
 an order from the time of its being 3 Swanst. 626; and see Partinirton 
 
 made, and may therefore be guilty of v. Booth. 3 Mer. 149. 
 and committed for a contempt of it, (?) Ibid. ; and see Robi7}son v. Lord 
 
 before the writ has issued. Byron, Dick. 703. 
 
 (o) 2 Russ. & M. 33. (r) Morris v. Morris, 1 Hog. 238.
 
 408 
 
 OF THE TRACTICE IN 
 
 [rART III. 
 
 CHAPTER V. 
 
 OP THE PRACTICE IN DISSOLVING INJUNCTIONS. 
 
 Section I. 
 As to dissolving Injiinctions to stay Proceedings at Law. 
 
 1. General Rule that Application to 
 
 dissolve must be by Motion, 
 
 2. Regular Course of Proceeding to 
 
 dissolve. 
 
 3. If Exceptions are shown for Cause, 
 
 and 7iot sustained, the Injunction 
 falls, 
 
 4. When the Plaintiff may move to 
 
 revive, 
 
 5. Proper Course uhen Order Nisi 
 
 has been improperly obtained. 
 
 6. Effect of Plea on Right to dissolve. 
 
 7. When a special Application may 
 
 be made to dissolve without an 
 Order Nisi. 
 
 8. Of References for Scandal and 
 
 Impertinence. 
 
 9. Extent of the Similarity between 
 
 Reference for Insufficiency and 
 Reference for Impertinence. 
 
 10. Practice on References for Insuf- 
 
 ficiency, 
 
 11. Effect of Delay 07i Defendant's 
 
 Right to obtain Order Nisi on 
 putting in his Answer. 
 
 12. Effect of Delay in giving Notice 
 of the Inj unction, on the Plain- 
 tiff's Right to sustain it. 
 
 13. Of losing the Right to show a par- 
 
 ticular Cause against dissolvins;. 
 
 14. Ground for Dissolvi7ig under the 
 
 Second General Order, 1839. 
 
 15. Practice where Order Nisi is ob- 
 
 tained on the eve of the long Va- 
 cation, 
 
 16. Where Master's Report not made in 
 
 theTimelimited,special grounds re- 
 quisite to obtain Extension of Time. 
 
 17. Defendant may by Answer icaive 
 
 Objection that an Injunction is 
 not prayed by the Bill. 
 
 18. 0/' showing Exceptions for Cause 
 
 against an Infant's Answer. 
 
 19. Exceptions to the Rule that where 
 
 there are several Defendants, an 
 Injunction cannot be dissolved 
 against one till allhave answered. 
 
 20. Generally there cannot be an 
 
 Order to dissolve an Order to ex- 
 tend, us separate J rom the Order 
 for an Injunction. 
 
 21. Practice where there has been a 
 
 Verdict, and the Plaintiff at hmo 
 is abroad. 
 
 22. Effect of Injunction on Dismissal 
 
 of the Bill. 
 
 23. Distinction in regard to the Effect 
 
 of a Demurrer, where the In- 
 junction is issued before, and 
 where after Execution.
 
 CHAP, v.] MATTERS OF INJUNCTION. 
 
 400 
 
 24. IVIiethcr Bauki-tiplcij of Plaintiff' 
 
 is an Abatement, and Effect of the 
 Doctrine on that Point on an In- 
 junction. 
 
 25. Proper Course when a Special In- 
 
 junction to stay Proceedings at 
 Laiu has been improperly obtained, 
 
 26. Practice as to reading Affidurits. 
 
 1. General Rule. 
 
 2. When Affidavits tnay be read 
 
 for the Plaintiff. 
 
 3. State of the Rule as to Deeds, 
 
 and as to Facts. 
 
 4. Morgan v. Goode, and Hodg- 
 
 son V. Dean. 
 
 5. Answer Evidence only as to 
 
 Facts of which other Evi- 
 dence might he admitted. 
 
 6. Where Answers are treated as 
 
 Affidavits, and may be met 
 by Affidavits. 
 27. Wliat Affidavits of Waste requisite 
 to support Motion to dissolve In- 
 junction against a Verdict in 
 Ejectment, 
 
 1. (jENERALLY an injunction, of whatever kind it may 
 be, can only be dissolved on motion in open Court («), 
 and I am not aware of any reported case to the contrary 
 in the Court of Chancery. It is said, however, that occa- 
 sionally in extremely pressing cases, the Lord Chancellor has, 
 in the vacation, appointed a special hearing at his house 
 for the purpose (i). There is a case in the Exchequer (c) 
 in which an injunction to stay the transfer of stock by 
 the bank, was dissolved on petition. • The sum was very 
 small, and the petition was presented by the parties solely 
 interested in the stock, and was consented to by the repre- 
 sentative of the testator. It need scarcely be observed, that 
 an order made under such circumstances can hardly be 
 treated as of any authority. 
 
 2. The proper course to dissolve the common injunction 
 is, upon the answer coming in, to obtain on motion or peti- 
 tion as of course, an order 7iisi; that is, an order that un- 
 less on a future day the plaintiff shows good cause to the 
 contrary, the injunction shall be dissolved. The ground 
 of the order nisi is the assumption that the defendant has 
 put in a full answer, and thereby rebutted the plaintiff's 
 
 (a) See Eden on Injunc. 326; 3 
 Dan. Pract. 355. 
 (6) Eden on Injunc. 326. 
 
 (c) De BeauJ'ort v. Archdeacon, 1 
 Y. & C. 549.
 
 410 OF THE PRACTICE IN [PART III. 
 
 equity. Therefore the mere filing a plea does not entitle 
 the defendant to the order nisi to dissolve, because there 
 no such assumption can be made (d). The Court, on 
 making the order nisi, fixes a time for showing cause, 
 which is usually four days; but if the plaintiff intends to 
 show cause on the merits, it is usual to allow him till the 
 following seal day. The principle of this is, that the de- 
 fendant shall not move immediately on putting in his an- 
 swer, without giving the plaintiff time to look into it, and 
 see whether it is a proper answer. Formerly, the order 
 nisi could only be obtained on motion, but by the 23rd 
 General Order of 1828, the order nisi may be obtained on 
 petition as well as on motion; and the order must be 
 served two clear days at least before the day on which 
 cause is to be shown against dissolving the injunction. 
 
 On the day for showing cause, the defendant moves to 
 make the order nisi absolute, and the plaintiff then elects 
 whether he will show for cause objections to the answer, 
 or the merits as they appear upon it. 
 
 3. If electing the former course, he excepts to the an- 
 swer for insufficiency, and cannot maintain the exceptions, 
 the injunction is gone. For it was early held, that if an 
 injunction obtained for want of answer is attempted to be 
 maintained against an order nisi, by exceptions shown for 
 cause, it is ipso facto dissolved, on the Master reporting 
 the answer sufficient; and is not in general by exceptions 
 to the Master's report sustained until those exceptions 
 shall have been argued (e). 
 
 So in a late case, where the common injunction had 
 been obtained, and then exceptions to the answer, and the 
 further answer being reported sufficient, exceptions were 
 taken to the Master's report; the Court held, that for the 
 purpose of dissolving the injunction, it would act upon 
 that report as if it had not been excepted to ; and there- 
 
 (d) Wroe v. Clayton, 8 Law Jour. Bishton v. Birch, 2 Ves. & B. 42; see 
 356. also 2 Dan, Pract. 318. 
 
 (e) BotUm v, Clarh, % Cox, 428;
 
 CHAP, v.] MATTEKS OF INJUNCTION. 411 
 
 fore an order 7iisi to dissolve the injunction, obtained on 
 the Master's rejwrt pending the exceptions to it, was held 
 regular(/). 
 
 4. But if on arguing the exceptions to the Master's re- 
 port, the Court thinks the answer insufficient, the plaintiff 
 may thereon move to revive the injunction (//). 
 
 5. Where an order nisi to dissolve an injunction for 
 want of answer has been irregularly obtained, the plaintiff 
 cannot show the irregularity for cause, for by showing 
 cause he admits the answer. The proper course is to 
 move to discharge the order for irregularity (/<). 
 
 6. The defendant may move on a plea to the whole bill 
 allowed, to dissolve absolutely an injunction obtained for 
 want of answer, because a plea allowed is to be considered 
 as a full answer (i). But when on argument a plea is 
 ordered to stand for an answer, the defendant cannot ob- 
 tain an order to dissolve at once, but only an order nisi, 
 as on an answer {k). 
 
 7. Under special circumstances also the Court will 
 allow a motion for a special order to dissolve at once(Z). 
 And when the principle requiring the order 7iisi has no ap- 
 plication, the order itself is unnecessary, and the defendant 
 may move at once to dissolve. Thus, where the common 
 order 7iisi had been obtained, and on the day for showing 
 cause the plaintiff referred the answer for impertinence, and 
 the answer being reported impertinent, the impertinence 
 was expunged ; and then the plaintiff took exceptions, 
 which were finally overruled ; Lord Eldon held it regular 
 to move at once to dissolve, without again obtaining the 
 
 (/) Merest v. Coster, 1 Sim. & (() Philips v, Langhome, Dick. 
 
 Stu. 486. 148. 
 
 (g) Botham v. Clarke, 2 Cox, 428. {k) Osborri v. Cowper, Mos. 198. 
 
 (h) Hall V. Barney, Dick. 289. (0 Sharpley v. Perring, 8 Sim. 
 
 600.
 
 412 OF THE PRACTICE IN [PART TIT. 
 
 order wisi; as it was plain that under the circumstances 
 he had ah'eady all the necessary information from the an- 
 swer (/»); in other words, the impertinence being expunged, 
 and the exceptions being overruled, there was a full answer 
 before the Court ; and therefore there was no ground for 
 an order nisi, the principle of which is, that the plaintiff 
 may elect whether he will meet the motion on the merits 
 confessed by the answer, or treat the answer as insufficient. 
 
 8. In an early case(w) Sir Lloyd Kenyon, M.R., would 
 not allow a reference of the answer for scandal and imperti- 
 nence, as cause against dissolving the common injunction ; 
 and it is said by the reporter that Lord Thurlow was of 
 
 the same opinion in a case of ZZe/w?/ v. (o). But 
 
 in another case, the Court said that if an order to dissolve 
 nisi were obtained pending a reference for impertinence, 
 the reference would be cause against dissolving, because 
 pending the reference it cannot appear what part of the 
 answer will remain on the record (p). And it is now well 
 settled by later cases, that a reference of the answer for 
 impertinence is good cause against dissolving the common 
 injunction (q). 
 
 The reason is, that an answer cannot be referred for in- 
 sufficiency if the plaintiff means to refer it for imperti- 
 nence ; as there must be a judgment upon the reference 
 for impertinence before there can be a judgment on the re- 
 ference for insufficiency ; and as exceptions may be shown 
 for cause against dissolving the injunction, all proceedings 
 necessarily preceding them must also be sufficient cause (r). 
 In Goodinge v. Woodham, Lord Eldon, however, put the 
 plaintiff on terms to procure the report on the reference for 
 impertinence within a week(s). 
 
 (/)i) Lacy V. Uornhij, 2 Ves. & B. (9) Fhher v. Bayley, 12 Ves. 18 ; 
 
 291. Goodinge v. Woodhams, 14 Ves. 534 ; 
 
 (n) Golding v. Milner, Dick. 672. and see 2 Dan. Pract. 297. 
 
 (0) Ibid. (r) 14 Ves. 536. 
 
 (p) Kenny v. Barimell, 2 Cox, {$) 14 Ves. 537. 
 26.
 
 CHAP, v.] MATTERS OP INJUNCTION. 413 
 
 9. Tlie analogy between a reference for insufficiency and 
 for impertinence went, under the old practice, thus far; 
 that if a reference for impertinence was shown for cause 
 against dissolving an injunction, and the report was to be 
 made within four days, and it was not made, the injunc- 
 tion was dissolved. But if afterwards the Master reported 
 the answer impertinent, it has been held that the plaintiff" 
 could not revive the injunction (r), as he could if the an- 
 swer was reported and held insufficient. The ground on 
 vvhicli this was put in Dansey v. JBroivn was, that if an 
 answer was reported impertinent, the defendant had no 
 means of immediately proceeding, but was in the power of 
 the plaintiff", who alone could move to expunge the imperti- 
 nence. It has however been observed (s), and as I submit 
 with justice, that the reasoning of this case is displaced 
 by the case of Kenny v. Barneivall {f) , which was not 
 cited in Dansey v. Broivn. In Kenny v. Burnewall a mo- 
 tion was made to discharge an order nisi for irregularity, 
 on the ground that the order was obtained on a suggestion 
 of a full answer, whereas the answer had been referred for 
 impertinence, and reported impertinent, and the imperti- 
 nence not expunged ; but the Court held, that although 
 pending a reference for impertinence the defendant could 
 not move to dissolve, because it would not appear what 
 part of the answer could remain on the record, yet as the 
 Master's report particularized the lines and words imperti- 
 nent, it was not necessary, after the Master's report, to 
 have the impertinence actually expunged before the defend- 
 ant could move to dissolve. But if the Master reports the 
 answer not impertinent within the limited time, the injunc- 
 tion is gone, and exceptions to that report are no ground 
 for opposing the order to make the order nisi absolute (?/). 
 
 The similarity between references for insufficiency and 
 references for impertinence has been carried further on 
 
 (r) Dansey v. Brown, 4 Mad. 237. (0 2 Cox, 26. 
 
 (s) Edea on Injunctions, 98 ; 1 (u) Corson v. Stirling, Coop. 93. 
 
 Dan. Pract. 299.
 
 414 OF THE PRACTICE IN [PART III. 
 
 another point by the eleventh order of 1828, which makes 
 it necessary that an order to refer any pleadings for scan- 
 dal or impertinence should be gromided on exceptions {x). 
 Mr. Daniell, after stating the rules laid down by the cases 
 of Fisher v. Bailey {y), Goodiiige v. Woodhams (z), and 
 Dansey v. Brown (a), and observing that it does not ap- 
 pear that any alteration in the practice has taken place in 
 consequence of the new order (11th order, 1828), suggests, 
 however, that the Court will in all probability in future 
 consider that instead of the order referring the answer for 
 impertinence being necessary as a cause against dissolving 
 an injunction, the mere Jiliny of the excejjtions will be a 
 good cause for that purpose, as it is in the case of excep- 
 tions for insufficiency (b). 
 
 10. In general the practice as to referring an answer for 
 insufficiency is, that the order to refer cannot be obtained 
 till eight days after the exceptions are delivered (c). But 
 in injunction causes the rule is different. If the plaintiff 
 is in possession of the common inj miction only, and it has 
 not been obtained till after declaration at law delivered, 
 then, as it only stays execution and not trial, the plaintiff 
 is entitled, on excepting to the answer for insufficiency, to 
 obtain an order of course to refer it instanter for insuffici- 
 ency {d), unless the defendant has obtained the order nisi 
 to dissolve, and the exceptions are shown as cause against 
 making the order nisi absolute ; and then as both parties 
 are before the Court, the order to refer the exceptions in- 
 stanter is made in the presence of both of them, and the 
 order is properly then a special order. But if the plaintiff 
 is in possession of the injunction to stay trial, then there is 
 
 (a) Before that oider it was a mo- (s) 14 Ves. 536. 
 
 tioa of course to refer an answer for (a) 4 Mad. 237. 
 
 impertinence or scandal, to be looked (ft) See 2 Dan. Pract. 298. 
 
 into by the Master j 2 Dan. Pract. (c) Fttie 5th General Order, 1828, 
 
 295. Cooke's Orders, 2d ed. 4. 
 
 {y) 12 Ves. 18. (rf) Brooks v. Haigh, 8 Sim. 558.
 
 CHAP, v.] MATTERS OF INJUNCTION. 415 
 
 no ground for referrino- the answer instanter, and it is irre- 
 gular to obtain an order of course for that purpose (e). 
 
 The principle seems, that where the plaintiff has the in- 
 junction complete for staying tibial, no ground exists for 
 referring the answer instanter, because the plaintiff cannot 
 be damnified by the delay, as the trial must stay till a 
 proper answer is put in. But where the plaintiff' has not 
 all by the injunction that he can have, there the order to 
 refer instanter is obtainable, because the trial is not stayed, 
 and the plaintiff may be damnified by the defendant's wil- 
 fully putting in an insufficient answer for the purpose of 
 delay (/). ^ 
 
 11. A defendant may at any time under the general or- 
 ders obtain an order nisi to dissolve an injunction as soon 
 as his answer is filed ; but if he waits till exceptions are 
 filed, it is irregular after that to obtain an order nisi to 
 dissolve the common injunction obtained for default of 
 answer. This was decided in a case of Williams v. 
 JDavies (g), and the rule laid down in that case has been 
 followed by Lord Langdale in a very late one {h). 
 
 12. It was held in an early case that if a plaintiff ob- 
 tained an inj miction for want of answer, and then let the 
 answer come in, and the defendant proceed at law to a 
 verdict, and then only served the injunction, it would be 
 discharged (i) ; and on the other hand, where an injunc- 
 tion had been obtained for default of answer to an amended 
 bill, and was extended to stay trial, and then the defend- 
 ant on putting in his answer took no step to dissolve, but 
 permitted the plaintiff to reply and went into evidence, 
 and let the cause go on till publication of evidence had 
 passed ; it was held irregular for the defendant to obtain 
 the order nisi to dissolve {k). 
 
 (e) Candler v. Partington, 6 Mad. (/() Hoioes v. Howes, 1 Beav. 197. 
 
 102 ; and see 8 Sim. 560. (i) Sec 2 Eq. Ab. 525, sect. 9. 
 
 (/) See 8 Sim. 560. {k) Barnett v. Mole, 1 Keen, 645. 
 C^) 1 Sim. & Stu. 262.
 
 416 OF THE rRACTICE IN [PART 111. 
 
 In the case refened to, a case of Blolineiix v. Luard {I) 
 was relied on to prove that the order nisi may be obtained 
 after replication and subpoena to rejoin, and rule given 
 to produce witnesses ; but in that case it appears from the 
 registrar's book that the order was by consent; and no in- 
 stance it is said is to be found where an order nisi has been 
 made after publication has passed {m). 
 
 13. Where an order has been made for an injunction, 
 but has not been entered within the time limited by the 
 rules of the Court, an order to enter it nunc jjro tunc is re- 
 gular (/i). But if the common injunction having been ob- 
 tained, the defendant has obtained the usual order 7iisi, 
 and at the time fixed for showing cause against dissolving 
 the injunction, no cause, or what is the same thing, no suf- 
 ficient cause is shown, the plaintiff cannot afterwards show 
 exceptions for cause (o); and if the plaintifi" shows excep- 
 tions for cause, and the Master reports the answer suffici- 
 ent, the plaintiff cannot afterwards move to revive the 
 injunction upon the merits confessed by the answer (p). 
 Possibly where a plaintiff has on the original answer failed 
 on the merits, the answer to the exceptions might after- 
 wards furnish a case which would entitle him to an injunc- 
 tion on the merits ; but then he must come to revive the 
 injunction, showing that the answer to the exceptions has 
 established a case which if he had had it before would have 
 entitled him to an injunction; but the mere pendency of 
 exceptions will not be sufficient (§'). 
 
 14. And here may be mentioned, among the grounds for 
 dissolving an injunction, that if a party, being in posses- 
 sion of the common injunction, has obtained an order of 
 
 (/) 2 Dick. 634. 362, note. 
 
 (m) 1 Keen, 647. (p) Peyto v. IIudso)i, 3 Swans. 
 
 ()i) Harcourt v. Ramsboltum, 3 363, note. 
 Swans. 359. ((/) Harcourt v. Ramsboltom, 3 
 
 (o) Ibid. ; Pinlieiro v. Porter, ibid. Swans. 359.
 
 CHAP, v.] MATTERS OF INJUNCTION. 417 
 
 course for leave to amend under the second general order 
 of 183\), tlie defendant may, although he has not put in 
 his answer to the bill or the amendments, move on notice 
 to dissolve the injunction, on the ground that the bill as 
 amended does not, even if the amendments be true, entitle 
 the plaintift" thereto (r). Before this order it seems that 
 after amendments and injunction revived on special appli- 
 cation, the defendant might move before answer to dissolve, 
 on atiidavit in repl;y to that on which the injunction had 
 been revived (5). 
 
 15. Where an order to dissolve an injunction 7iisi has 
 been obtained of such a date that the motion to make it 
 absolute is made on tiie last seal before the long vacation, 
 the practice is to order the plaintiff to show cause on some 
 day before the next seal ; because to apply the usual prac- 
 tice and allow the plaintiff till the next seal to show cause 
 on the merits, would be to sustain the injunction for three 
 months (t). 
 
 In a later case it was held that if the order nisi has not 
 been obtained, but the motion for that order is made on the 
 last seal before the long vacation, a day will not be fixed 
 during the vacation to move for making the order nisi ab- 
 solute, but the Court will only grant the order 7iisi in the 
 usual form iii). But in a still later case, where the motion 
 for the order nisi was made at the last seal before the long 
 vacation, a day was appointed during petitions for showing- 
 cause {x). 
 
 16. Where the common injunction having been obtained, 
 exceptions are shown as cause against dissolving it, the 
 order is to refer it to the Master to certify as to the suffi- 
 ciency of the answer, and the Master's report to be pro- 
 cured within four days, otherwise the injunction to be dis- 
 
 (r) 2d General Order, May, 1839. («) Tlew v. Dixon, 2 Mad. 258. 
 
 (s) n/)an V. Mo»f/oc/o, 2 Mer. 479. (v) FeeWing v. Capes, 4 Mad. 393. 
 
 (f) Robinson v. WalcoU, 5 Yes. 552. 
 
 E E
 
 418 OF THE PRACTICE IN [pART III. 
 
 solved without further order (?/) ; and it is said by Mr. 
 Smith (z) that if four days are insufficient to enable the 
 Master to report, the time may be extended either by con- 
 sent in the Master's office, or by application to the Court 
 on notice of motion. But it must not be understood that 
 the time v/ill be enlarged as of course, or even on slight 
 grounds. For it appears by Davenport v. Whitmore («) 
 that though the Court may interfere in special cases, as 
 for instance in a case where the cause of delay is the Mas- 
 ter's illness, yet where no such extraordinary case is shown 
 the Court will not interfere. 
 
 17. It has been stated in a preceding page that a plain- 
 tiff must specially pray for an injunction by the bill, in 
 order to be entitled to move for one; but it was held in an 
 early case, that if the defendant, instead of moving to dis- 
 charge an order for an injunction obtained without being 
 prayed for by the bill, answers, and then on the answer 
 moves to dissolve, he waives the irregularity (6). 
 
 18. As no exceptions can be taken to an infant's answer, 
 a motion to dissolve an injunction against an infant on his 
 answer, cannot be met by undertaking to show exceptions 
 for cause (c). 
 
 In the case referred to, the answer was insufficient, the 
 case made by the bill being that the life of the defendant 
 (the infant) was put in merely as a trustee, the grandfather 
 of the defendant having paid the fine and remained in undis- 
 turbed possession for nearly seventeen years ; and the 
 answer merely denied knowledge that the fine was paid 
 by the plaintiff; but the Court said it could not see the 
 trust on the bill and answer, therefore it could not interfere 
 with the legal title, and dissolved the injunction. 
 
 (]/) See 1 Smith's Piac. 281. (h) Davill v. Peacock, Barn. 25. 
 
 (z) Ibid. 619. (c) Lucas v. Lucas, 13 Ves. 274. 
 
 (a) 8 Sim. 251.
 
 CHAP, v.] MATTERS OF INJUNCTION. 419 
 
 19. It is stated by a leaniecl writer to be a general rule, 
 that where there are several defendants enjoined, the Court 
 will not dissolve an injunetion till all have answered (J). 
 This rule is, however, subject to exceptions. In a case 
 before Sir J. Leach (e) his Honor discharged an order 
 nisi obtained by one of several defendants, suggesting that 
 all tlie defendants had answered ; saying that one of 
 several defendants against whom the common injunction 
 has been obtained, may on filing his answer obtain an or- 
 der fiisi to dissolve an injunction as against himself; but 
 he ought not to suggest, contrary to the fact, that all the 
 defendants have answered. But where the case was of two 
 trustees, one of whom refused to bring an action and the 
 other brought it in the joint names, the Court refused to 
 dissolve the injunction against the one who had answered 
 until the other should answer, on the ground that he who 
 was bringing the action could not proceed with it ; as the 
 action being in the joint names, it would be a contempt to 
 continue it while the injunction was subsisting against 
 one (/). 
 
 And in an interpleading bill, one defendant cannot in 
 general, on the coming in of his answer, dissolve an in- 
 junction in the usual manner. But if there is any delay 
 in the plaintiff in getting in the other answer, the defend- 
 ant may, upon that special ground, apply to dissolve, or to 
 have the money paid to him (ff). 
 
 And it is to be observed, that if the bill in an inter- 
 pleading suit is dismissed, it is not regularly necessary, 
 although it is a very general practice, to apply for an order 
 to discharge the injunction ; for when the bill is dismissed, 
 in strictness the injunction falls ipso facto (/<). Indeed, 
 as regards any bill praying an injunction, the better opi- 
 nion seems that if the bill is dismissed, an nijunction 
 
 (d) 3 Dan. Pract. 285. (g) ityde v. Warren, 19 Ves.321. 
 
 (e) Todd V. Dismor. 2 Sim. & Stu. (/i) Blennerhassetv.Scanlan, 1 Hog. 
 477. 363. 
 
 (/) Nanney v. Vaughuu, 8 Sim. 439. 
 
 £ £ 2
 
 420 OF THE PRACTICE IN [PART III. 
 
 granted on such bill falls with it, without any express 
 motion or order being necessary to dissolve (^). 
 
 In a case where the defendants to a bill for an injunc- 
 tion to stay proceedings at law, stood in the relation of 
 solvent members of a partnership and the assignees of a 
 bankrupt partner, it was held that if all had answered, it 
 would be competent for the solvent partners to move to 
 dissolve an injunction obtained against all ; but the motion 
 would not be granted as regarded those defendants to 
 whose answers exceptions were pending (k). This amounts 
 to no more than that the injunction will be dissolved as 
 against those defendants who have actually answered ; 
 because, pending exceptions to an answer, it is not a com- 
 plete answer. 
 
 When a bill is filed against a company and their officer, 
 the common injunction obtained against the company will 
 be dissolved on the coming in of their answer, although 
 the officer of the company has not answered (Z). 
 
 20. Although where an injunction is extended to stay 
 trial, there are two orders, there is but one injunction. 
 Tile injunction is whole, and the order to dissolve must be 
 in the usual way, an order to dissolve nisi, and the plaintiff 
 shows cause by exceptions, or upon the merits confessed 
 by the answer ; and an order will not in general be 
 granted on the coming in of the answer, to dissolve the 
 order extending the injunction to stay trial, leaving the 
 order to restrain execution subsisting (m) ; but under pecu- 
 liar circumstances the order to stay trial will be discharged 
 alone (w). 
 
 Where the whole equity of the bill, on which an injunc- 
 tion to stay proceedings in another Court has been ob- 
 
 (0 1 C. p. Cooper's Cas. 591. N. S. 30. 
 
 (/c) Joseph V. Doubleday, 1 Ves. & (m) Earnshaw v.Thornhill, 18 Ves* 
 
 Bea. 497. 485. 
 
 (/) Glascott y. Governor and Com- (n) Barrett \. Tickell, Jac. 154; 
 
 pany of Copper Miners, 10 Law J. see also 1 Ves. &■ B. 367 , notis.
 
 CHAP, v.] MATTERS OF INJUNCTION. 421 
 
 tained, is explicitly and fully denied by the answer, it is 
 clear that the injunction must be dissolved (o). 
 
 21. Where a verdict has been recovered at law, and the 
 defendant at law files a bill for an injunction, and obtains 
 the common injunction for want of answer, the defendant 
 in equity being abroad ; the practice is, that on the motion 
 of the defendant in equity, the plaintiff shall bring the 
 money into Court by a given day, or the injunction stand 
 dissolved (p). But if the bill alleges an equity against 
 the verdict, the motion must be supported by affidavits 
 contradicting the bill {<]). 
 
 22. An injunction having been obtained, does not of 
 itself prevent the bill being dismissed on motion of course. 
 The principle is, that after an injunction has been obtained, 
 if the plaintiff takes no step during the time prescribed, 
 the defendant may dismiss the bill for want of prosecution, 
 by motion of course, although there is an order for staying 
 execution, or trial, or even sometimes the commencement 
 of an action (r). In those cases, on production of the six 
 clerks' certificate, or on assertion, to which the Court gives 
 credit, that the certificate will be made, the bill is dis- 
 missed, and of course the injunction ends (s). But if any 
 transaction between the parties renders the motion to dis- 
 miss the bill inconsistent with justice, the Court will advert 
 to that transaction on a motion to discharge the order for 
 dismissal. The certificate of the six clerk is not conclu- 
 sive on the question whether the order shall remain {t). And 
 if an order for an injunction affords other advantages, as 
 
 (o) Furidval v. Bogle, 4 Russ. Potts v. Butler; Mitchell v. Davis, 
 
 142. ibid. 183, 184, nolis. 
 
 (p) Sherwood v. White, 1 Br, C. C. (r) Day v. Snee, 3 Ves, & B. 170 ; 
 
 452 ; see also Cotes v. Lindsey, Kaylor v. Taylor, 16 Ves. 127 ; 3 
 
 Dick. 352 ; Acton v. Market, 2 Br. Swans. 244 ; Desgravcs v. Lane, 15 
 
 C. C. 14 ; and Culley v. Nickliiig, 2 Ve^. 291. 
 
 Br. C. C. 181. (s) 3 Swanst. 245. 
 
 (g) See also Coglan v, Reqneneau ; (c) Ibid.
 
 422 OF THE PRACTICE IN [PART III. 
 
 an understanding not to bring a writ of error, or an early 
 opportunity of applying to the Court, the motion to dismiss 
 will be discharged, unless made on notice (m). 
 
 It has been also decided, that the pendency of a notice 
 of motion to dissolve an injunction on the coming in of the 
 answer, the motion not having come on by reason of the 
 press of business of the Court, does not make it irregular 
 to obtain the order to dismiss for want of prosecution (x). 
 
 23. With regard to the effect of a demurrer on the 
 common injunction, where the demurrer is overruled, the 
 injunction is granted of course( y). But a distinction is to be 
 observed, when it issues before and when after execution 
 executed. Where no execution of legal process has issued, 
 no difficulty aiises, and the injunction has then its ordinary 
 effect of staying execution ; but if execution has been exe- 
 cuted, by taking the goods of the defendant at law, and at 
 the time of the injunction issuing, the goods are not yet 
 out of the hands of the sheriff, then if the sheriff* proceeds 
 to sell without process, he will be ordered to pay the 
 money into Court. The principle is this : While it is in 
 contemplation, whether a good case can be made or not, 
 if it turns out that there is an equitable case in the result 
 of the demurrer, then to deal with it as an equitable case 
 from the first, and to prevent execution. A difficulty 
 occurs where execution has been issued and executed 
 against the plaintiff* 's hod?/ ; because such taking in exe- 
 cution is a discharge of the debt. Where therefore the 
 plaintiff''s body has been taken in execution, pending the 
 demurrer, a special order for the discharge of the defendant 
 will be made, so as to provide against the extinction of the 
 debt, and to put the parties on the same footing as if the 
 injunction had issued before any execution executed (z). 
 
 (u) Jamesv. Biou, 3 Swans. 234. 6 Mad. 299, n. ; and 3 Mer. 234. 
 
 (i) Farquliarsonv. Pitcher, 3Tiass. (z) Franklyn v. Thomas, 3 Mer. 
 
 383. 225. 
 (y) Rashleigh v, Buller, Dick. 153 :
 
 CHAP, v.] MATTERS OF INJUNCTION. 423 
 
 In the case referred to, it was decided also that a special 
 injunction to restrain proceedings at law, could not be 
 granted on the mere ground that the plaintiff" at law would 
 be entitled to sue out execution before the defendant could 
 obtain the common injunction, unless the defendant had 
 not had any opportunity of obtaining the common in- 
 junction. 
 
 24. A point incidentally connected with the practice on 
 injunctions has been the subject of considerable conflict 
 of decision ; viz. whether the bankruptcy of the plaintiff' is 
 an abatement of a suit, and requires a bill of revivor before 
 any step can be taken, or whether it requires only a 
 supplemental bill. 
 
 In a case in Atkyn in 1748 (a), Lord Hardwicke held 
 that the bankruptcy was not an abatement, and on that 
 ground refused to allow that objection to a motion to make 
 an order 7iisi to dissolve an injunction absolute; and 
 obliged the plaintiff" to show cause regularly. 
 
 In a subsequent case (&), on a motion to discharge an 
 order for dismissing a bill. Lord Thurlow held that bank- 
 ruptcy in the plaintiff" was an abatement. While in ano- 
 ther case (c), the Court had, on the bankruptcy of the 
 plaintiff", ordered a supplemental bill to be filed by the 
 assignees within a given time, or the injunction to be dis- 
 missed. 
 
 So far, however, as regards injunctions, the course is 
 settled, that on the bankruptcy of a plaintiff" who has 
 obtained an injunction, the assignees must be brought 
 before the Court by a bill of supplement, in the nature 
 of a bill of revivor, within a limited time, usually a fort- 
 night ; and if they are not, the injunction will be dis- 
 solved (d). 
 
 So wdiere the plaintiff" becomes insolvent, an order will 
 
 (a) Anon. 262. note, 55 ; see also 1 Atk. 262, note. 
 
 (b) Lingard v. Wegg, 3 Br. C. C. (<0 Ruudall v. Mumford, 18 Ves. 
 435. 427, per Lord Eldonj and see the 
 
 (c) French v. Barton, \Q Ves. 425 ; note 59 to tlial case, p. 428.
 
 424 OF THE PRACTICE IN [pART III. 
 
 be made tbat the injunction be dissolved, unless assignees 
 are appointed, and file a supplemental bill within a limited 
 time(e). 
 
 25. It may here be observed, that if an ex parte injunc- 
 tion to stay proceedings at law, has been improperly ob- 
 tained, the Court will not go beyond dissolving it with 
 costs, unless there has been, not merely a mistatement of 
 circumstances in the application for it, but that species 
 and extent of mistatement which would operate on the 
 mind of the Court to induce it to make the order. Thus 
 in a late case, the bill prayed an injunction to stay an eject- 
 ment, stating that the plaintiffs in equity had no defence at 
 law, and was supported by an affidavit verifying that state- 
 ment, and on this an ex parte injunction was granted; 
 it appeared afterwards that there were misrepresentations 
 in the affidavits, on which the plaintiff" obtained his injunc- 
 tion, but they were misrepresentations as to facts, either not 
 within the jurisdiction of the Court, or such as would not 
 affect its decision (/). On this state of things, Lord Cot- 
 tenham held, that though it was proper to dissolve the 
 injunction, a further order, by which the plaintiffs in equity 
 were directed to give judgment in the ejectment, was 
 irregular. 
 
 26. I. The universal practice as to dissolving or not 
 reviving an injunction is, if the answer denies all the cir- 
 cumstances on which the equity is founded, to give credit 
 to it. And except in a few excepted cases, though five 
 hundred affidavits were filed, not only by the plaintiff but 
 by many witnesses, not one could be received for the pur- 
 pose of contradicting the answer. Therefore where an in- 
 junction obtained on a bill filed to set aside an award had 
 been dissolved on the coming in of the answer, which 
 denied all the circumstances of the bill, and the plaintiff 
 
 (c) Caird V. Campbell, 1 Mol. 484 ; (/) Broun v. A'eua//, 3 My. & C. 
 
 see also on this 1 Dan. Pract. 78, and 558. 
 3 Dan. Pract. 287.
 
 CHAP, v.] MATTERS OF INJUNCTION. 4}^5 
 
 moved to revive the injunction, on the ground that the 
 grand jury had found a true bill on an indictment for per- 
 jury on that very answer; Lord Eldon said, the difficulty 
 as to the principle was, that the grand jury might have 
 believed, and in most cases must have believed, those very 
 persons on their oaths, whose depositions could not be re- 
 ceived in equity for the purpose of discrediting the an- 
 swer; and it was therefore a circuitous way of destroying 
 the rule of equity to give credit to the answer; and the 
 motion to revive was refused (^). 
 
 II. But though no affidavits can be read to contradict 
 the answer, they may to substantiate written instruments 
 alleged by the bill, and neither admitted nor denied by the 
 answer. Thus, where for cause against dissolving, the 
 plaintiff relied principally on letters set forth in the bill, 
 and neither admitted nor denied by the answer, the plain- 
 tiff was permitted to verify them by the affidavits, and to 
 read them against the defendant (/i). 
 
 III. It seems to have been formerly the practice to allow 
 affidavits to be read in support of allegations made by the bill 
 as to acts of the parties, neither admitted nor denied by the 
 answer (i) ; but the decision in the case already cited (A) is 
 against this, and in a later case, the same learned judge, who 
 decided Taggart v. Hewlett, laid down the rule thus: that if 
 deeds or letters be stated in the bill, and the defendant says 
 he does not know whether the statement is correct or not, 
 then they may be verified by affidavit. But as to facts and 
 circumstances which the defendants do not know of, if the 
 benefit of them cannot be had from the defendant's con- 
 sciences, it cannot be had at all, except so far as the plain- 
 tiff in equity may be able to prove them at the trial (/). 
 Lastly, in a very late case, where, upon showing merits 
 confessed in the answer, as cause against dissolving an in- 
 junction, the counsel for the plaintiff tendered an affidavit 
 
 (^) Clapham v. White, 8 Ves. 35. (k) Taggart v. Healett, 1 Mer. 
 
 (h) Taggart v. Hewlett, 1 Wer. 499. 
 499. (/) Barrett v. Tickell, Jac. 124, 
 
 (t) Morgan v. Goode, 3 Mer. 10. 129.
 
 426 OF THE PRACTICE IN [PART III. 
 
 to substantiate certain allegations in the bill as to which 
 the defendant stated in his answer that he was ignorant; 
 the Vice-Chancellor refused to receive it, saying that the 
 point was quite settled (^/^). 
 
 IV. It is to be observed also, that where an instrument 
 is neither admitted nor denied in the answer, it is neces- 
 sary, in order to sustam an injunction, for the plaintiff to 
 prove the existence of it, if it be material, by affidavit. 
 But the rule and practice seem otherwise as to the per- 
 sonal title of the plaintiff. In regard to that, although if the 
 answer denies the title of the plaintiff, no affidavit can be 
 read to repel that denial, yet if the answer neither denies 
 nor admits it, and the plaintiff is in actual possession, that 
 is sufficient evidence of his title. Thus, where the plaintiff, 
 being in possession, claimed as tenant in tail under a settle- 
 ment made on the marriage of his father, and a mortgagee 
 of a term brought ejectment, the plaintiff filed a bill to re- 
 strain the action, on the ground of notice, and obtained the 
 common injunction, and on showing cause against dissolving 
 it, proved by affidavit the execution of the settlement, and 
 that the estate tail was not barred, but did not so prove 
 the marriage of his parents; the Vice-Chancellor thought 
 proof of the latter circumstance unnecessary, as the plain- 
 tiff's being in possession was sufficient evidence of title for 
 the purpose of an injunction. The point, however, was 
 not decided, as his Honor said he would permit the plaintiff, 
 if necessary, to file an affidavit (70' 
 
 V. Where a motion for an injunction to stay proceed- 
 ings at law is made on the merits appearing by the answer, 
 the answer is evidence for the defendant as to those facts 
 only to which other testimony could be received. But 
 where the equity of the plaintiff is founded on a written 
 agreement, if the answer admits the agreement, it can 
 have no weight as evidence to show that the intention of 
 the parties was otherwise than as appears in the agreement, 
 
 (?)i) Ciistellaiii V. Blumenthal , 3 (j«) Hodgson v. Dean, 2 Sim. &c 
 
 Dan. Pract. 290; 5 Jurist, 501 ; and Stii. 221. 
 10 Law Journ. 223.
 
 MATTERS OF INJUNCTTON. 
 
 427 
 
 CHAP, v.] 
 
 because other evidence could not be received to contradict 
 a written agreement (o). 
 
 27. Where a plaintiff claiming- as purchaser has ob- 
 tained an injunction to restrain tlie vendor from proceeding 
 on a verdict in ejectment, the injunction will not be dis- 
 solved on affidavits of trifling waste, denied by affidavits 
 on the part of the plaintiff. Though aemhle, that if a spe- 
 cial case was made, as if there was a mine, and the pur- 
 chaser was proceeding to ruin it, the Court might inter- 
 fere (;>). 
 
 Section II. 
 Of dissolving Special Injunctions [a). 
 
 1. Course for dissolving a Special In- 
 
 j unci inn. 
 
 2. General Rule as to reading Affi' 
 
 davits against the Answer. 
 
 3. Distinction on this Point between 
 
 Injunctions against Proceedings 
 at Law, and Injunctions against 
 Waste, &jc. 
 
 4. Preseiit rule in Cases of Waste, and 
 
 Cases ayiulogoiis to Waste. 
 
 5. Distinction \uhere the Plaintiff is 
 
 moving on the Answer to obtain an 
 
 Injunction ; and where the De- 
 fendant moves on the Answer to 
 dissolve an Injunction. 
 
 6. The rule that Affidavits are not re- 
 
 ceived against the Answer, applies 
 only when it is a full Answer. 
 
 7. Rule as to Time of filing Affidavits, 
 
 when a Motion to dissolve stands 
 over at the Plaintiff's instance. 
 
 8. Where there are several DeJ'eudanis, 
 
 and some only answer. Affidavits 
 may be received against those An- 
 swers. 
 
 \. A SPECIAL injunction can only be dissolved upon the 
 merits, and never on such grounds as insufficiency of the 
 
 (o) Bott V. Birch, 4 Mad. 255. 
 
 (p) Price \. Williams, 1 Ves.jun. 
 401. 
 
 (a) The observations in this chap- 
 ter must be considered more particu- 
 larly with reference to special injunc- 
 tions obtained ex parte ; for as those 
 special injunctions which are moved 
 
 for upon notice, are granted, if at all, 
 on the merits siiown on both sides, 
 they are generally not disturbed till 
 the hearing. A motion to dissolve 
 could, in such cases, be rarely any 
 thing more than in effect a rehearing 
 of the original motion.
 
 428 OF THE PRACTICE IN [PART III. 
 
 answer; for if the answer is insufficient, or otherwise inad- 
 missible as an answer, it is treated as an affidavit (a). 
 And it is not necessary, in order to dissolve a special in- 
 junction, to obtain first an order visi on the coming in of 
 the answer ; but the order to dissolve may be moved for 
 at once upon the answer (b). Or the defendant may move 
 to dissolve before answer, upon affidavits (c). The appli- 
 cation of this distinction between dissolving the special and 
 the common injunction, depends in practice on the circum- 
 stance, that the former is " till answer or further order," a 
 form which, as we have seen (d), appears to have been 
 adopted for the express purpose of allowing a motion to be 
 made to dissolve before answer. 
 
 2. On the subject of reading affidavits, in opposition to 
 a motion to dissolve a special injunction, there has been 
 formerly considerable conflict of decision. 
 
 We have seen that, for the purpose of opposing a motion 
 to dissolve the common injunction, affidavits are never 
 allowed to be read to contradict the answer. And the 
 rule is broadly laid down in one of the cases referred to (e), 
 as applying to dissolving an injunction generally, without 
 specifically distinguishing the common injunction from the 
 special injunction. 
 
 3. A distinction was, however, adopted at a very early 
 period, with regard to injunctions for restraining certain 
 wrongful acts of a special nature, as distinguished from the 
 common injunction for staying proceedings at law. 
 
 In a case before Lord Talbot, C, where the plaintiff, 
 claiming as patentee of a book of designs, obtained an in- 
 
 (a) Smith V. Cleasby, 10 Sim. 91 ; 476 ; Earnsliaw v. Thornhill, 18 Ves. 
 
 see Kershaw v. Matthews, 1 Russ. 361, 488 ; Taylorv. Waistall, cited 1 Newl. 
 
 andl9 Ves. 351. Pract. 353. 
 
 (6) Stratlimore v, Bowes, 1 Cox, (d) Ante, p. 271 ; and see Eden on 
 
 263. Injunctions, 325. 
 
 (f) Vipan V. Mortlocke, 2 Mer. (e) Clapham v. White, 8 Ves. 35.
 
 CHAP, v.] MATTERS OF INJUNCTION. 429 
 
 junction to restrain ])iiacy of it, affidavits were allovvcd to 
 be read in opposition to the answer, on a motion to dis- 
 solve (/). This case was followed by Ryder v. Bentliam, 
 and Attorney-General v. Bentham {g). 
 
 4. And it may be stated to be, at the present day, the 
 settled practice of the Court to permit affidavits to be read 
 at certain stages of the proceedings against the answer in 
 cases of waste, and of injuries in the nature of waste {h). 
 
 But there is tliis distinction to be observed in cases of 
 waste, that affidavits may be read against the answer in 
 cases of waste, and of acts of a like nature, as to the acts 
 ofivasle, but not as to title (^). And in Norway v. Rowe, 
 in which the plaintifi' charged the defendant as a trustee for 
 himself and others as joint adventurers in a mine, with 
 improper working of the mine ; it was held that affidavits 
 filed vvitli the bill might be read against the answer, as to 
 acts of exclusion and mismanagement, but that no affi- 
 davits, whether those filed after the answer, or those filed 
 with and in support of the bill, could be heard as to title. 
 The title must be taken from the answer {j ). 
 
 The ground of permitting affidavits on the part of the 
 plaintiff to be read against the defendant's answer, in cases 
 of waste, is, that the mischief is irreparable ; the timber, 
 if cut, cannot be set up again; or in other words that the 
 mischief, if permitted, cannot be retrieved. But this rea- 
 son does not apply of necessity to a case where the damage 
 can be compensated by money ; as, for instance, to cases of 
 negotiating bills of exchange improperly obtained or held. 
 And therefore where an injunction has been obtained to 
 restrain the negotiation of such a bill, it must be sustained 
 or dissolved on the merits disclosed by the answer only {k). 
 
 (/) Gibbs V. Cole, 3 p. Will. (/() See3 Dan. Pract. 356, andlhe 
 
 255. cases there cited. 
 
 (g) Ibid, note; see also the reasons (i) 19 Ves. 146, 153. 
 
 and cases mentioned in Strathmorev. (j) 19 Ves. 143, and see 157. 
 
 lioices, Dick. 6/3. C') Berkeley v. Brymer, 9 Ves. 
 
 355.
 
 430 OF THE PRACTICE IN [PART III. 
 
 In the case referred to, the decision in Isaac v. Hum- 
 j)age {I) was relied on, but Lord Eldon said he did not 
 think that, as a judge, he could have supported that case, 
 and it is clear that it is of no authority (m). 
 
 5. And it is further to be observed, as to reading affi- 
 davits against the answer, that if a plaintifl' moves, after 
 the defendant has answered, for an injunction to stay- 
 waste, or injuries analogous to waste, he will not be allowed 
 to read on any point affidavits filed after the answer, in 
 opposition to it(n). And this has been also determined 
 in the Court of Exchequer, where it was held in a case of 
 one partner acting in opposition to the articles of partner- 
 ship, and no case made of irreparable danger, that an 
 affidavit, filed after the answer and contradicting it, could 
 not be heard (o). But in cases of waste, if the injunction 
 has been obtained, then on a motion to dissolve it, the 
 plaintiff is not precluded from reading affidavits as to acts 
 of waste against the answer, even although filed after it {p). 
 In Shirreff v. Barnard, which was a motion to dissolve 
 an injunction against waste, obtained ex parte {q), the 
 Vice-Chancellor said, " If a bill is filed for an injunction 
 to restrain the commission of waste, and the defendant by 
 his answer denies the acts of waste, it is competent to 
 the plaintiff to show, hy affidavits filed after the answer, 
 that the denial is false." Time will, however, be given to 
 the defendant to file counter affidavits if). 
 
 (I) 1 Ves. 427. 165 ; and see Strathmore v. Bowes, 1 
 
 (to) Fide 7 Ves. 308, and the cases Cox, 263, and the observations of 
 
 in 1 Ves. 431, note 7, and 1 Swansl. Lord Eldon, 1 Swans. 253, 254. The 
 
 254, note. report of Brydges v. Stephens is not 
 
 (h) Smylhe v. Smylhe, 1 Swans. quite clear on the point under consi- 
 
 252, and see the learned reporter's deration ; but it is presumed that the 
 
 valuable note, p. 254 ; Beaitij v. affidavits tendered in that case, must 
 
 Beatty, 2 Mol. 541. have been filed after the answer. 
 
 (o) Lawson v. Morgan, 1 Pri. 303. (</) 8 Sim. 166. 
 
 (p) Brydges v. Stephens, 6 Mad. (c) Brydges v. Stephens, 6 Mad. 
 
 279 J Shirreff v. Barnard, 8 Sim, 279.
 
 CHAP, v.] MATTERS OF INJUNCTION. 431 
 
 But even on a motion to dissolve an inj miction against 
 waste, affidavits filed after the answer, although going only 
 to deny facts alleged in the answer, will be rejected if those 
 facts indirectly affect the title. Thus where the plaintiff, the 
 lessor, claimed, as annexed to the freehold, certain sheds in 
 a ship-builder's yard, and the answer swore that they were 
 not let into the soil, but merely stood on it ; the plaintiff 
 tendered affidavits to prove that the sheds were let into the 
 soil ; but Sir L. Shad well, V. C, said the case was so 
 constituted that a matter of fact became a matter of title, 
 and refused to permit the affidavits to be read (s). 
 
 6. And it is to be observed that when it is said that 
 affidavits cannot be read against the answer, it must be 
 understood against a full answer ; therefore, where a plain- 
 tiff having obtained an ex parte injunction, the defendant, 
 on putting in his answer, gave notice of motion to dissolve ; 
 and then the plaintiff excepted, and the defendant submit- 
 ted and put in a further answer; it was held, that on a 
 motion to dissolve, made upon the notice so given, the 
 plaintiff might read affidavits filed after the exceptions 
 taken, and before the coming in of the further answer, on 
 this ground ; that the defendant, by submitting to answer 
 further at once, admitted that he knew his first answer 
 was insufficient, and the Court therefore treated it as an 
 affidavit. But if the defendant had, after putting in a fur- 
 ther and sufficient answer, served a second notice of mo- 
 tion, then further affidavits against the answer could not 
 have been read {t). 
 
 7. And it must also be observed that a rule has been 
 lately laid down, that where notice of motion is given to 
 dissolve an ea- p«rfe injunction, and on the motion being 
 mentioned, it is ordered to stand over at the plaintiff's re- 
 quest, no affidavits can be read at the hearing of the mo- 
 
 (s) Shirrejf \. Barnard, 8 Sm. 161. (t) Smith v. Cleasby, 10 Sim. 91.
 
 432 PRACTICE IN MATTERS OF INJUNCTION. [PART III. 
 
 tion which were not filed at least before ten o'clock on the 
 day for which the notice was given (u). And a special in- 
 junction will be discharged with costs, if at the time of ap- 
 plying for it, office copies of the affidavits on which it was 
 granted were not obtained (.r). 
 
 8. Where there are several defendants and some only 
 have answered, it has been decided that on a motion for a 
 receiver, the answers of those defendants who have an- 
 swered can be treated, in the absence of the answers of 
 other material defendants who have not, only as affidavits, 
 and consequently the plaintiff is entitled to read affidavits 
 against them (y). And the same rule has been applied 
 where a special injunction having been obtained against 
 several defendants copartners, three of whom had answered, 
 but the fourth had not, the three who had answered moved 
 to dissolve the injunction ; his Honor the Vice-Chancellor 
 treated it as a joint injunction, and therefore held that 
 the plaintiff was entitled to read affidavits against the 
 answers {z). 
 
 (h) Annu. 10 Sim. 50. (y) Kershaw\. Mathews, 1 Russ. 361. 
 
 (x) Ibid, 326. (i) Kaylor v. Wellingtmi, 8 Sim. 396.
 
 SUPPLEMENT 
 
 TREATISE ON INJUNCTIONS. 
 
 PART I. 
 
 OF STAYING PROCEEDINGS AT LAW AND IN OTHER COURTS. 
 
 CHAPTER I. 
 
 Of Injunctions to stay Proceedings at Law where the 
 Legal Title of the Defendant in Equity is founded 
 originally on some inequitable Transaction ; or is against 
 Public Policy ; or where, although the Legal Title of 
 the Defendant in Equity may not have been originally 
 inequitable, it has been tainted with Fraud, actual or 
 constructive, by the subsequent Conduct of the Party 
 claiming under it. 
 
 1. Jurisdiction to restrain Proceed- 
 ings at Law on Instruments ob- 
 tained hy Fraud. 
 
 2. Gambling Transactions. 
 
 3. As to the Interference of Equity 
 when the Illegality of the Instru- 
 ment appears on the Face of it; 
 or where its Validity can be tried 
 at once at Law. 
 
 4. Of restraining Proceedings on In- 
 struments obtained under undue 
 Influence or Intoiication. 
 
 5. Frauds on Compositions with Cre- 
 ditors. 
 
 6. When Equity will, and when it 
 will not interfere between Parties 
 to a Contract against public Policy. 
 
 7. When Persons bq fraudulent Ac- 
 quiescence in permitting others to 
 deal with their Rights as their own, 
 lose their Equity, 
 
 8. As to the Interference of Equity to 
 prevent a Party from proceeding 
 against another under the Batik- 
 ruptcy or Insolvency Acts. 
 
 9. Of the Effect on the Liability of 
 
 Sureties of giving Time or other 
 Advantage to the principal Debtor. 
 
 1 . Where a young man, an officer in the army, who had 
 very recently attained his majority, became liable, upon 
 
 B
 
 2 STAYING PROCEEDINGS [PART I. 
 
 bills of exchange, for the accommodation of his superior 
 officer, to the defendant, a money lender by profession, 
 and upon negociations for getting in the bills, the defend- 
 ant agreed to postpone the payment of them for twelve 
 months, and induced the plaintiff, upon representations of 
 his trouble and expense in procuring the postponement of 
 the bills, to give him, in consideration of such trouble and 
 expense, a further promissory note ; the Court, not finding 
 in the answer a satisfactory explanation of these transac- 
 tions, sustained an injunction against the defendant pro- 
 ceeding at law upon his securities (a). 
 
 In a recent case an attempt was made to contend that 
 the Court could not restrain the East India Company 
 from paying money due on East India bonds, to a person 
 alleged to have obtained fraudulent possession of them ; on 
 the ground, first, that such bonds pass by delivery, and 
 are payable to the holder like bank notes ; secondly, that 
 the interference of the Court would tend to depreciate the 
 East India Company's securities ; but the Court held 
 that it had jurisdiction as incident to its inherent jurisdic- 
 tion in all cases of fraud (b), unless expressly restricted by 
 the legislature ; and that by the East India Company's Act, 
 51 Geo. 3, c. 64, s. 4, the Court was not so restricted. 
 
 2. Where money has been lent in a foreign country, to 
 be used in gaming in such country, and there is nothing to 
 show that the games were illegal according to the law of 
 the country in which they were played, equity will not 
 restrain an action to recover the debt(c). 
 
 3 (d). On similar grounds to those on which Gray v. 
 Matthias (e) and cases of that class were decided. Lord 
 Langdale, M. R., dismissed a bill which sought a declara- 
 tion that a lease granted by the plaintiffs was invalid, and 
 
 (a) Lloyd V. Clark, 6 Eeav, 309 ; (c) Quarrier v. Colston, 1 Phil. 147. 
 
 and see p. 3 of the Treatise (d) See p. 11 of the Treatise. 
 
 (/;) Glass V. Marshall, 15 Sim. 71. (e) 5 Ves. 286.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 3 
 
 to have a reconveyance and the lease delivered up. His 
 Lordship held the lease absolutely void, and therefore that 
 the plaintiffs might recover in ejectment, and did not want 
 a reconveyance ; and although the lease was not invalid 
 upon the face of it, and would therefore be a document 
 which the plaintiffs would be entitled to have delivered up, 
 if they could not try its validity at law, yet as they were in 
 a position to have its validity tried at once, the Court held 
 that the bill could not be sustained as a bill to have the 
 void lease delivered up (/). 
 
 4. In a case where persons of mature age, dealing with 
 A., took from his niece, B., a guarantee for money due to 
 them from A., with knowledge that A. had been B.'s guar- 
 dian; that B. had but recently attained her majority, and 
 that she then lived with and under the protection of A. and 
 his family; the Court granted an injunction restraining 
 an action against B. for the money for which she had 
 given her guarantee {g). 
 
 With respect to the effect of instruments executed while 
 in a state of intoxication, the doctrine of Johnson v. Med- 
 licott {h) and Cooke v. Clayworth (i) has received some 
 qualification from the very recent case at law of Gore v. 
 Gibson (h), in which it was decided that it is only partial 
 intoxication which does not relieve a man against his con- 
 tract, but that if the drunkenness is so complete that a 
 man is incapable of knowing what he is about, and the 
 party contracting with him is cognizant of his state, he shall 
 not enforce the contract of the drunken man against him. 
 
 5. On this point, see also Spvrret v. Spiller (/) and Lee 
 v. Lockhart (m). 
 
 (f)CorporationofArundelv, Holmes, (i) 18 Ves. 12; and see Treatise, 
 
 4 Beav. 325 ; see also Smyth v. Griffin, p. 20. 
 7 .Turist, 101. (A:) 9 Jurist, 140. 
 
 (g-) Maitland v. living, 15 Sim. (/) 1 Atk. 105. 
 
 437 ; and see p. 18 of the Treatise. (m) 3 Myl. & Cr. 302; and see 
 
 (/i) 3 P. Wms. 130, note A. p. 21 of the Treatise. 
 
 b2
 
 4 STAYING PROCEEDINGS. [PART I. 
 
 6(w). The judgment in the case o^ Barnard v. Sutton (o) 
 contains important observations on the question when 
 equity will and when it will not interfere between parties 
 to a contract against public policy. The case was decided 
 on other grounds. 
 
 7(p). In a very recent case, on a motion to restrain the 
 defendant in equity from proceeding in an ejectment, the 
 plaintiff in equity was proprietor of a colliery, and the de- 
 fendant was perpetual curate of some land through which 
 the plaintiff desired to make a railway. The plaintiff, act- 
 ing under the compulsory powers of an act of parliament, 
 after giving due notice to the defendant, had taken posses- 
 sion of his land, and constructed the railway through it, 
 the defendant neither assenting nor dissenting. After- 
 wards disputes arose about the compensation, and then the 
 defendant brought an action of ejectment ; on a motion to 
 stay the proceedings, the defence made by the answer was, 
 that the defendant had not opposed the construction of 
 the railway, because he thought he should not continue 
 to be the incumbent after a given time, and because he 
 thought the plaintiff had the power to proceed under the 
 act. The Court treated the case as one of acquiescence, 
 and stayed the ejectment, putting the plaintiff on terms 
 to give judgment in the action to be dealt with as the 
 Court should direct, and to pay into Court a sufficient 
 sum to be a security to the defendant for the price of the 
 land {q). On the same principle of acquiescence, a party 
 may, by acquiescing in the creation of a nuisance, deprive 
 himself of his right to sue at law for damages on account 
 of the nuisance. This was decided in two old cases (r), 
 and to the same effect is Williams v. Earl of Jersey (s). 
 And it is clear that if a person in possession of land, 
 
 (7() See p. 22 of the Treatise. (r) Case of the watercourse; and 
 
 (o) 7 Jurist, 685. Short v. Tayler, 2 Eq. Cas. abridged, 
 
 (p) See p. 35 of the Treatise. 522. 
 (g) Powell V. Thomas, 6 Hare, 300. (s) 1 Cr. & Phil. 91.
 
 CHAP. I.] AT LAW AND IN OTHER COURTS. 5 
 
 knowing that another claims it, the claim of that person 
 having been of course distinctly made, will, with his eyes 
 open, lay out money upon the land, he will not be aided 
 by injunction to keep the lawful owner out of possession, 
 unless he will reimburse the party in possession the ex- 
 penditure he has made(^). 
 
 An important distinction exists between the effect of 
 acquiescence as a ground of demurrer to a bill for an in- 
 junction, and as a ground for resisting merely the injunction. 
 In the first instance, the acquiescence must be such as 
 wholly to disentitle the plaintiff to any relief; in the second, 
 acquiescence falling short of that degree may be a suffi- 
 cient defence (?i). 
 
 The case referred to turned upon two points : first, whe- 
 ther certain buildings erected and used by a company for 
 the purpose only of housing and repairing their engines 
 and carriages, and not as a station, in the ordinary sense 
 of the word, constituted public buildings, &;c. within the 
 meaning of the act under which the company acted ; and, 
 secondly, whether the acquiescence of the plaintiff had 
 been such as to preclude him from obtaining an injunction. 
 It appeared that he had continually objected to the pro- 
 ceedings of the company, though he had taken no proceed- 
 ings so long as he was led by them to believe that such 
 proceedings were merely temporary ; but on their asserting 
 a right to do the acts objected to, the plaintiff filed his bill 
 without any further delay. On both points Lord Lang- 
 dale, M. R., thought the plaintiff entitled to an injunction. 
 Afterwards an appeal motion was heard by the Lord Chan- 
 cellor, who directed the opinion of a court of law to be 
 taken on the construction of the act. The report does 
 not state whether his Lordship continued the injunction in 
 the meantime. 
 
 8(x). The jurisdiction to prevent a party from proceed- 
 
 (t) Master of Clare Hall v. Hard- way Company, 5 Beav. 229. 
 ing, 6 Hare, 273. (.i) See p. -40 of the Treatise. 
 
 (m) Gordon v. The Cheltenham Hail-
 
 6 STAYING PROCEEDINGS [PART I. 
 
 ing against another, under the Bankruptcy or Insolvency 
 Acts, has been exercised under particular circumstances(y). 
 But where there are no equitable circumstances to prevent 
 a party from exercising his common law right of proceed- 
 ing against another under the Insolvent Debtors' Act, he 
 will not be restrained from proceeding to obtain a vesting 
 order (z). 
 
 9. An injunction will not be granted to restrain an 
 action against a surety, because the obligee, after having 
 commenced an action against the principal, takes from him 
 without the obligor's privity a cognovit, with a stipulation 
 that judgment shall not be entered up nor execution issued 
 till a given day, that day being earlier than it would have 
 been possible to obtain judgment in the action. The Court 
 said, by the arrangement complained of, time was not 
 given, but the remedy was accelerated (a). 
 
 (3/) Attwood V. Banks, 2 Beav. 192. Coll. C. C. 672 ; S. C. 6 Jurist, 846. 
 (z) Anon. Rolls, 8 Jurist, 1085. (a) Hulme v. Coles, 2 Sim. 12. 
 
 See also Perry v. Walker, 1 You. &
 
 CHAP. II.] 
 
 AT LAW AND IN OTHER COURTS, 
 
 CEIAPTER II. 
 
 Of Injunctions to stay Proceedings at Law where the 
 Plaintiff in Equity has some equitable Right to set up 
 against the Plaintiff at Law, of which the Court of 
 Law cannot, either by reason of Want of Jurisdiction, 
 or by reason of its Forms of Proceeding, take cognizance; 
 or where the Legal Right of the Plaintiff at Law is 
 coupled with, and abridged by, some Equitable Liability. 
 
 1. Injunclions in Cases of Mistake (a). 
 
 2. Injunctions where the Defendant at 
 
 Law has good Matter of Defence, 
 but cannot use it by reason of the 
 Forms of Proceeding ; or where pro- 
 ceedings in Equity, ill ichich Justice 
 can be done, have been instituted. 
 
 3. Of the Right of a Mortgagee to 
 
 proceed on his several Remedies at 
 once, 
 
 4. Where the final Claims of the Par- 
 
 ties can only he ascertained by a 
 complicated Account, 
 
 1. IT must not be assumed that against every mistake of 
 fact, equity will relieve. Where mistake is in reality only 
 another name for neglect in a parfy to use those means of 
 information which are open to him, he is bound by his act, 
 although it be a mistake of fact. Thus, where exchanges 
 of lands being in progress under the 6 & 7 Will. IV. c. 115 
 and 3 &; 4 Vict. c. 31, B. executed to the commissioner a 
 written consent under the act to exchange certain lands 
 for others belonging to N., for which it was clear he had 
 not intended to exchange them, but B. had the means of 
 knowing that the lands which he consented to take were 
 not such lands as he intended to consent to take ; the 
 House of Lords sustained an injunction restraining B. from 
 proceeding against N., the exchangee, in ejectment, and 
 refused an injunction to restrain the commissioner from 
 
 (a) See p. 48 of the Treatise.
 
 8 STAYING PROCEEDINGS [PART I. 
 
 executing his award, and to restrain N. from committing 
 waste on the lands of B. allotted to him(Z>). 
 
 In a very recent case an attempt was made to obtain 
 an injunction where the plaintiffs had paid money into 
 court under a mistake as to the legal consequences of such 
 act, and the effect of it was to give certain defendants a 
 legal title to take the money out ; but the Court refused 
 to restrain the defendants from so doing, on the ground 
 that a mistake as to the legal consequences of an act did 
 not call for the interference of equity (c). 
 
 2 {d). Where the purchaser of premises from the sheriff, 
 under a sale in pursuance of an execution, obtained posses- 
 sion, but no assignment, so that he had not the legal title, 
 and the question between him and the defendant was whe- 
 ther the sale was regular or not, a question which would not 
 be at all tried in ejectment, the defendant in equity was re- 
 strained from proceeding in ejectment against the purchaser 
 of the premises; and liberty was given to the latter to take 
 such proceedings at law as he might be advised, to try the 
 legality of the sale, and to perfect his title at law (e). So 
 where the allegation of the bill and affidavits were, that 
 A. beino indebted to B., B. in his lifetime desired A. not 
 to return the money, but to hold it for C, and that B. 
 never in his lifetime called upon A. to pay him, and after 
 B.'s death his executor brought an action against A. for 
 the debt, an injunction was granted to restrain the action 
 at the suit of the alleged cestui que trust, the money being 
 brought into court, on the ground that the real question, 
 which was whether a trust was created by B. in favor of 
 C, could not be tried in the action (/). 
 
 Both these cases proceed on the principle, that equity 
 
 (h) Duke of Beaufort v. Neeld, D. (d) See p. 63 of the Treatise. 
 
 P., 12 Clark & Fin. 248; S. C. 9 (e) Jones v. Hughes, 1 Hare, 383. 
 
 Jurist, 813. (/) M'Fadden v, Jenkins, 1 Hare, 
 
 (c) The Great Western Railway 458. 
 Company v. Cripps, 5 Hare, 9 1 .
 
 CHAP. II.] AT LAW AND IN OTHF.R C0URT3. 9 
 
 will not suffer proceedings at law where there is some 
 equitable claim set up by the plaintiff in equity, which, 
 owing to the forms of legal proceedings generally, or of the 
 particular legal proceedings, cannot properly be tried in 
 them. The following case is referrible to a different prin- 
 ciple, viz. that equity will not suffer proceedings to be 
 taken at law where proceedings, in which full justice could 
 be done, have already been taken in equity. 
 
 In the case referred to, an estate had been the subject 
 of an administration suit, and had been fully administered, 
 the executor having every opportunity of examining every 
 charge upon the estate and every particular constituting it; 
 he was, on that ground, restrained from continuing actions 
 brought without the leave of the court, against persons 
 parties to the suit, to recover property belonging to the 
 testator (^). But care must be taken not to confound 
 with cases of this sort, cases where, although A. may have 
 not only a legal right but an equity as against B., he has 
 a purely legal right or none at all against B.'s creditor. 
 Thus, where A. had let to B. a furnished house, and C, a 
 judgment creditor of A., caused the sheriff to seize the 
 furniture comprised in the lease, the Court refused an in- 
 junction, on the ground, that if B. had any title against 
 C. it was legal, and his remedy was at \q.w{/i). And in a 
 recent case, where the plaintiffs, farmers, had agreed with 
 their father for the use of a barn and yard on his premises, 
 wherein to put their carts and farming implements ; and 
 the defendant, a judgment creditor of the father, seized in 
 such barn and yard goods of the plaintiffs as well as of 
 their father; the Court refused an injunction to restrain 
 the sheriff from selling, on the ground, that as no trust 
 was made out, the Court would not interfere (i). And 
 here it may be observed, that as equity will of course not 
 interfere where the plaintiff in equity has a good defence 
 at law, so where there are several answers by the defend- 
 
 (g) Oldfield V. Cobhett, 6 Beav. 515. (/) Jackson v. Stanlwpe, 10 Jurist, 
 
 (/t) Garstin v. Asplin, 1 Mad. 150. 676.
 
 10 STAYING PROCEEDINGS [PART I. 
 
 ant at law to the claim of the plaintiff at law, and one 
 only is an equitable answer and the others are, if good 
 defences, purely legal, equity will not stay the proceedings 
 at law ; because to do so, would tie up the plaintiff at law 
 from proceeding till the cause is heard in equity, and then 
 if the plaintiff in equity is wrong in his equity, the plain- 
 tiff at law is still to seek his remedy ; and because if the 
 defendant at law succeeds there, there is no question for 
 equity to adjudicate upon (k). 
 
 3 (/). In a late case an attempt was made to deny the 
 right of a mortgagee to sue on his covenant, at the same time 
 proceeding to sell under his power of sale ; on the ground 
 that the price agreed to be paid by the purchaser exceeded 
 the mortgage debt, the bill impeaching at the same time the 
 sale. The Court refused to restrain the mortgagee, treating 
 the case as plain (m). 
 
 4(n). In ascertaining whether a bill in equity is the 
 proper course, where the defendant would have a title at law 
 to set up some demand, care must be taken to distinguish 
 whether there is equitable set-off, which is, where the equity 
 of the bill impeaches the very demand of the plaintiff at law, 
 as in O'Connor v. Spaiglit{o); or whether there are spe- 
 cific cross demands, as in the case of Whyte v. O'Brien(p). 
 For where the case is simply one of specific cross demands, 
 as where the plaintiff at law sues upon a clear breach of a 
 contract, and the plaintiff in equity files a bill to restrain 
 the action, on the ground of a complicated account be- 
 tween the parties in reference to dealings arising out of the 
 contract ultra the particular breach, equity will not stay 
 execution of a judgment obtained by the plaintiff at law 
 until the account is settled. The equity, it would seem, 
 must be, not that if the defendant at law pays the demand 
 
 (k) Barnard v. Wallis, 1 Cr. & Sm. 392 
 
 Phil. 85. (n) See p. 74 of the Treatise. 
 
 (/) See p. 68 of the Treatise. (o) 1 Scho. & Lef. 305. 
 
 (m) Willes v. Levett, 1 De Gex & (p) 1 Sim. & Stu. 551.
 
 CHAP, II.] AT LAW AND IN OTHER COURTS. 11 
 
 of the plaintiff at law, it may turn out that upon setting 
 that off against the balance due from him on the general 
 account, he will have had too much, but that the very 
 substance of his demand at law is cut down by something 
 which cannot be ascertained until the general account is 
 taken. The subject is fully discussed in the elaborate 
 judgment of Lord Cottenham in Rawson v. Samuel (fj), in 
 which his Lordship has reviewed the authorities and clearly 
 defined the principle of the jurisdiction to interfere on the 
 ground of cross demands. 
 
 It was held in a case of Morris v. Day (r), that mere 
 complexity of account, even where there are cross de- 
 mands, will not induce a court of equity to restrain an 
 action ; not on the ground of want of jurisdiction, fur the 
 Court said, if the bill had been filed first, it would have 
 stayed an action, but on the ground that the account might 
 be as well investigated by arbitration as by the Master; 
 and still less will mere complexity afford ground for stay- 
 ing an action, where the account is entirely one-sided {s). 
 It may be doubted, however, whether the general doctrine of 
 Morris v. Day can be supported consistently with the very 
 recent decision of the House of Lords in llie Taff Hail- 
 way Company v. Nixon (t). In that case a contract had 
 originally been made between Nixon and the Railway Com- 
 pany : by that contract Nixon was to do certain works for 
 a specified sum, subject to certain deductions or increases, 
 with a provision for payment of extra work at prices spe- 
 cified. Nixon had advances of money from Storm, and to 
 secure him, assigned to him the payments he Nixon was to 
 receive under the contract. Afterwards, to secure Storm 
 further, a new contract was entered into, to which Nixon, 
 Storm and the company were parties; and the effect of 
 that contract was, that the two became joint contractors 
 with the company for the works which were to be per- 
 
 (q) Raicson v. Samuel, 1 C. & (s) South- Eastern Railway Com- 
 
 Phil. 161. See also CUirk v. Cort, 1 pany v. Martin, 12 Jurist, 1062. 
 
 C. & Phil. 154. (0 1 CI. & Fin., House of Lords 
 
 (r) 4 Y. & Coll. Exch. 475. Ca. 111.
 
 12 STAYING PROCEEDINGS [PART I. 
 
 formed under the contract originally entered into by Nixon 
 alone. Under this contract the works were done, and in 
 addition to the works jointly done, Storm executed works 
 independently of Nixon for the company — all the money 
 transactions were with Storm. The lesult of all this was, 
 that there was an account between Storm and Nixon and 
 the company on account of the joint contract,- and there 
 was also an account of the payments due under the ori- 
 ginal contract. The company paid all the monies generally, 
 and by their answer said they were unable to say to which 
 of the accounts particular payments were to be referred. 
 In this stateof things, with a complicated account between 
 Nixon and the company, and as between Nixon, Storm and 
 the company, the necessity of ascertaining to which con- 
 tract and to which works the payments made were to be 
 referred, Nixon filed his bill against the company and 
 against Storm's assignees (Storm having become bankrupt) 
 for an account of what was due from the company in 
 respect of the original contract, and for an account as 
 between himself and Storm's assignees. The question was 
 whether such cross demands were proper for a court of 
 law only, or whether the account ought to be taken in 
 equity ; and the House of Lords decided upon the prin- 
 ciple laid down in O'Connor v. Spaight (cited supra), that 
 it was fit that it should be taken in equity. 
 
 It will not be forgotten that the rule in O'Connor v. 
 Spaight is, that an account is only proper to be taken in 
 equity where there are cross demands, in cases where it 
 can only appear from the result of a general account what 
 is due to the party who would be plaintiff at law, and 
 when such account is too complicated to be examined on 
 a trial at nisi prius. And it will be observed, that this is 
 the distinction between such cases as The Taff Railway 
 Company v. Nixon and Rawson v. Samuel {u). 
 
 From the very nature of this sort of case, it will always 
 
 (m) See also on the principle of xoay Company v. Martin, 13 Jurist, 1. 
 this jurisdiction, South-Eastern Rail-
 
 CHAP. II.] AT LAW AND IN OTHER COURTS. 13 
 
 be of course a matter of great difficulty to determine within 
 which class of authorities a particular case falls. But I 
 apprehend that the cases above referred to warrant these 
 general conclusions as to the 'principle that must be kept 
 in view in considering such cases. 
 
 I. That equity will not interfere where there is a specific 
 demand on the one side, merely because in a general 
 account between the parties, it may turn out that 
 the party making the specific demand will have 
 received under it more than he can set off against it. 
 II. That to support the interference of equity, an account 
 must be requisite before the specific demand at law 
 can be ascertained, and that account must be so 
 complicated as to be unfit for a jury. 
 III. That if the account can be taken by a jury, equity 
 will not interfere, even though it may be necessary 
 that the account should be taken before the demand 
 can be ascertained ; in other words, to induce equity 
 to interfere, there must be both equitable set-ofF, 
 within the doctrine of Raicson v. Samuel, and such 
 complexity in the account that a jury could not 
 take it. 
 
 CHAPTER III. 
 
 Where Relief is sought against Forfeiture or Penalties 
 incurred by the Breach of Covenants or the Neglect of 
 other legal Liabilities. 
 
 On the question of relief against breach of covenants in 
 leases, see Algar v. Murrell (a), in addition to the cases 
 referred to on this point in the Treatise (Z>). 
 
 (a) Vide 6 Jurist, lib. (ft) Page 80 el seq.
 
 14 STAYING PROCEEDINGS [PART I. 
 
 CHAP. IV. 
 
 Of the Jurisdiction in general. 
 
 1. Jurisdiction to stay Proceedings 
 
 generuliy in any Foreign Courti^a). 
 
 2. On restraining Proceedings in the 
 
 same Court when the Suits are 
 not precisely for the same Matter. 
 
 3. On restraining Proceedings in 
 
 other Courts on the mere ground 
 of the Court having drawn the 
 Matter within its own Jurisdiction. 
 
 As to staying Proceedings in Cre- 
 ditors' suits, 
 I. Generally, 
 
 II. As to the Costs wliich the 
 Creditor will be entitled to. 
 III. As to staying Proceedings at 
 
 Law by a Creditor. 
 On restraining Proceeditigs against 
 the Officers of the Court, 
 
 1. The Court of Chancery has refused to grant an injunc- 
 tion to stay assignees in bankruptcy from proceeding in the 
 bankruptcy, by making a dividend or otherwise, when the 
 plaintiff's only claim was as a general creditor (b). " My 
 opinion is," said the Vice-Chancellor of England, " that 
 this Court has no jurisdiction simpliciter to restrain the 
 assignees from making a dividend of that which is ad- 
 mitted to be the estate of the bankrupt. . . . If the 
 question had been whether any assets, any personal estate, 
 or any species of property which was in the hands of the 
 assignees as part of the bankrupt's separate estate, was 
 in fact the property of the plaintiff, this Court would, I 
 apprehend, decide the question, because the jurisdiction in 
 bankruptcy has authority to deal only with that which is 
 the bankrupt's estate, but has no power to determine what 
 is the bankrupt's estate. If the question is a legal one, it 
 must be tried at law ; and if it be an equitable one, it must 
 be decided in equity. But where you have determined 
 what is the property of the bankrupt, the whole administra- 
 tion of it falls under the jurisdiction of the Court in Bank 
 ruptcy (c)." 
 
 (a) See as to Duncan v. M'Almont, (b) Halford v. Gillow, 14 Sim. 44. 
 
 cited in the Treatise, p. 98, 3 Beav. 306. (c) Halford v. Gillow, 14 Sim. 49.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 15 
 
 There is always considerable difRculty in distinguishing 
 between absence of jurisdiction, and the refusal to exercise 
 it ; but it may be thought that, looking at the cases already 
 cited on the question of jurisdiction (cl); looking at tlie well 
 settled doctrine that the Court by granting an injunction, 
 does not assume jurisdiction over any other Court, but 
 merely over the persons parties to the suit ; this was not a 
 case of absence of jurisdiction, but of refusal, and doubt- 
 less well founded refusal, to exercise it ; and that the lan- 
 guage of the Court is to be read in that sense (e). 
 
 2. On restraining of proceedings in the same Court, 
 when the suits are not precisely for the same matter (/), 
 see Righy v . Strmicjways {g), in addition to the cases cited 
 in the Treatise (A). 
 
 3. On restraining proceedings in other Courts, on the 
 mere ground of the Court having; drawn the matter within 
 its own jurisdiction, see on the same point as in Sutton v. 
 Mas/liter {i), Oldjield v. Cobbett {k). 
 
 Under this head also may be ranged the case of Stubhs 
 V. Sargon (/), where a purchaser of book debts under the 
 order of the Court, being, as a condition of his purchase, 
 entitled to have delivered to him a particular set of account 
 books, of which he was unable to obtain possession, com- 
 menced an action of trover against the vendor. It was 
 held that this proceeding was wholly irregular, and the 
 action was stayed. 
 
 4. I. On the principle that the Court will not stop a cre- 
 ditor at law, unless there is a decree under which he can go 
 on, it has been held that where the bill was not on behalf of 
 all creditors, and the decree was only contingently a decree 
 
 (d) See in the Treatise, pp. 96, 97, (g) 2 Phil. 175. 
 
 (e) See in addition to the cases (h) See pp. 105, 106. 
 cited in the Treatise, p. 100, n. (p), (i) 2 Sim. 513. 
 Gingelv. Home, 9 Sim. 539; Allen v. (/c) 6 Beav. 515. 
 M'Pherson, 1 Phil. 133. (0 4 Beav. 90. 
 
 (/) See pp. 105, 106 of the Treatise.
 
 16 STAYING PROCEEDINGS [PART I. 
 
 for their common benefit, a creditor could not be restrained 
 from proceeding at law (m). 
 
 In considering the protection given to an executor 
 against creditois at law, it must also be remembered 
 that the executor takes, of course, only that which was 
 the testator's; and that, therefore, if, at the time of the 
 testator's death, a creditor had a lien amounting to a 
 dominium over any part of the testator's property, the 
 executor cannot restrain the creditor from exercising his 
 legal right. This point arose in Rankin v. Harwood{n). 
 In that case the creditor, Kirk, obtained a judgment in 
 December, 1845; and on the 7th April, 1846, a writ of 
 a. fa. was placed in the hands of the proper officer for 
 execution. The debtor died on the 6th April. During the 
 lifetime of the debtor, a mortoaoee's bill for an account 
 was filed, and on his death the mortgagee filed a bill of 
 supplement and revivor against the debtor's executor. In 
 the two suits a decree was made in June, 1846. In July, 
 1846, the sheriff took possession, under the fi. fa., of 
 certain goods of the testator; and the executor imme- 
 diately moved for an injunction to restrain him from re- 
 moving or selling such goods, and to restrain the creditor 
 from proceeding in his action. Sir J. Wigram, V. C, re- 
 fused the motion : he said, if the writ had been put into 
 the hands of the sheriff before the death of the debtor, then, 
 beyond all question, the creditor might have taken them 
 in execution, even in the hands of a purchaser (except in 
 market overt), from the executor. " At the death of the 
 testator," said his Honor, " supposing the writ to have 
 been then in the hands of the sheriflp, the creditor had a 
 dominion over the goods paramount to that of the exe- 
 cutor ; or, in other words, the amount of the assets of the 
 testator over which the executor had dominion, adverse to 
 the creditor's right, was the amount of the gross assets 
 minus the amount of the creditor's claim." Then the writ, 
 when put into the hands of the sheriff, taking effect by re- 
 
 (m) Rankin v. Harewood, 2 Phil. 24. (n) 5 Hare, 215.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 17 
 
 lation, as from the teste of the writ, (which was before the 
 testator's death), his Honor held that the creditor could 
 not be enjoined. 
 
 II. (o) If the executor shows what are the assets, and the 
 plaintiff at law had notice of the decree before he issued 
 his writ, the plaintiff at law will have no costs of the action 
 or of the motion (p). In Burnett v. Burnett {q), under 
 similar circumstances, the injunction was granted, but 
 costs were reserved. In that case, however, the decree 
 specially noticed the debt of the plaintiff at law, and di- 
 rected the Master to inquire whether any steps should be 
 taken with regard to his claim. The Court expressly 
 guarded itself against laying down any rule by this case. 
 
 III. On the question of the distinction between the cases 
 where the judgment at law is de bonis testatoris, and where 
 it is de bonis testatoris, et si non de propriis (r), some im- 
 portant cases have been decided since the publication of 
 the Treatise. In a very recent case (s), the plaintiff at law 
 was proceeding under a judgment against the testator, 
 in an action against the executors, to recover execution 
 de bonis testatoris. The executors pleaded plene adminis- 
 travit. The cause was set down, and shortly to be heard. 
 Before it was heard, a decree was made in a creditors' suit, 
 and then the executors moved to stay the action on the 
 same ground as in Brook v. Skinner (t), that the executors' 
 plea would be falsified, and then the plaintiff at law would 
 recover de bonis propriis. But Sir L. Shad well, V. C. E., 
 thought that, on the evidence before him, it appeared that 
 the executors had not assets in their hands sufficient for 
 the payment of debts, so that in effect their plea was not 
 a false plea, and therefore his Honor granted the injunc- 
 
 (o) See p. 1 10 of the Treatise. (r) See p. 1 13 of the Treatise, 
 
 (p) Jones V. Brain, 2 Y. &c Col. (s) Vernon v. Thellusson,! Jurist, 
 
 C. C. 170. 503. 
 
 (q) 10 Jurist, 4. (t) 2 Mer. 481 , n.
 
 18 STAYING PROCEEDINGS [pART I. 
 
 tion. On appeal the Lord Chancellor affirmed the deci- 
 sion, but not merely on the ground assigned by the Vice- 
 Chancellor. His Lordship's reasons were, first, that upon 
 the plea of the executors being falsified, the judgment 
 would not be de bonis propriis, but only de bonis testa- 
 toris (u) ; the result of which would be, that the assets 
 would be withdrawn from the general fund, which ought 
 to be distributed in equity for the benefit of the whole of 
 the creditors ; secondly, that independently of the general 
 question, the plea not having been filed till after the 
 decree had been obtained and notice of it served, it was 
 obvious it had only been filed to enable the executors to 
 apply to this court (x) ; and, lastly, that the account 
 given of the state of the assets by the executors was sa- 
 tisfactory (y). 
 
 In another case, before Lord Lyndhurst, C, the suit 
 was a creditors' suit against the real and personal estate 
 of an intestate. After decree, the heir moved for an in- 
 junction to restrain proceedings in an action brought by 
 a bond creditor. The heir had pleaded riens per descent, 
 and the motion was opposed on the ground, that if the 
 plaintiff at law falsified this plea, he would be entitled to 
 judgment against the heir de bonis propriis. But the 
 Lord Chancellor granted the injunction generally ; on the 
 ground that, although if the plea were falsified, the cre- 
 ditor would be entitled to execution against the heir to 
 the value of the lands which he had by descent ; yet on 
 paying the amount, the heir would be entitled to hold 
 the land discharged (2) ; so that the result would be in 
 effect to take the particular creditor's debt out of the 
 real assets of the intestate as much as if execution had 
 been against the assets, and that, his Lordship added, in 
 a case where the decree had priority over the judg- 
 
 (ii) See, p. 120 of the Treatise, iv) 1 Phil. 466. 
 
 and the authorities there cited. (s) Buckley v. Nightingale, 1 Str. 
 
 (x) Fielden v, Fielden, 1 Sim. & 665. 
 Stu. 255. See Treatise, p. 1 15.
 
 CHAP. IV.] AT LAW AND IN OTHER COURTS. 19 
 
 ment {a). This case is not inconsistent with the principle 
 of Price v. Evans (b), so far as it protects the assets of 
 the testator or intestate from being dealt with at law 
 for the particular creditor. But, as regards the relative 
 positions of the creditor and the heir, the effect of Lord 
 Lyndhurst's order would, it is apprehended, be very dif- 
 ferent from that of the Vice-Chancellor. By the special 
 order made in Price v. Evans, the assets of the intestate 
 would be withdrawn from the particular creditor, to be 
 administered in equity. The heir would be left unpro- 
 tected as to his personal liability at law, which would 
 be measured by the value of the lands come to him by 
 descent; the creditor would therefore be paid. As be- 
 tween the heir and any other creditor proceeding at law, 
 if there were no decree in equity, no doubt the heir would 
 be entitled to hold the intestate's land discharged, to the 
 extent to which he had personally paid the previous debt. 
 But it is quite clear, that by the effect of the decree in 
 equity, the heir would practically lose his right to hold 
 the lands of his intestate discharged, unless the decree 
 were to be mere words without force, because the decree 
 fastens the debts of the other creditors upon the land 
 withdrawn from the action. The effect of Lord Lynd- 
 hurst's order in Rouse v. Jones would be very different. 
 It would protect the heir against his personal liability at 
 the expense of the particular creditor who sued at law; 
 in other words, it would interfere with that legal right 
 which the heir gave to the plaintiff at law, as against him 
 personally, by setting up a false defence. Whether his 
 Lordship considered that the exercise of such a right in 
 the creditor would be inequitable, if the assets were with- 
 drawn from the claim of the heir to recompense himself 
 out of them : or whether his Lordship overlooked this effect 
 of his order ; or whether, not overlooking it, he thought a 
 divided injunction could not be granted, does not appear 
 by the report. Nor does it appear whether this peculiar 
 
 (a) Rome v. Jonei, 1 Pliil. 462. (6) 4 Sim. 514. 
 
 c2
 
 20 STAYING PROCEEDINGS, &C. [PART I. 
 
 consequence of granting an injunction simpliciter was 
 called to his attention. On the whole it may be doubted 
 whether Lord Lyndhurst meant to do more than was 
 done in Price v. Evans and Kent v. Pickering, viz. to 
 protect the assets. 
 
 The general conclusion (c) on this subject that I submit 
 must now be arrived at is, that if a judgment at law is 
 de bonis testatoris, et si non de propriis, the Court will take 
 care by some order to prevent the assets from being with- 
 drawn from the general fund for the payment of creditors ; 
 but whether it will do so by restraining the proceedings 
 at law generally, or by a special order protecting the assets 
 only, without prejudice to such rights at law against the 
 representative personally, as the creditor may have, must, 
 in the present state of the authorities, be considered as 
 unsettled. 
 
 5. On the same principle as that of the cases referred 
 to in the Treatise {d), where a receiver had been appointed, 
 the Court restrained a company from proceeding without 
 the leave of the Court to summon the trustees of the pro- 
 perty before the justices, under the authority of the Lands 
 Clauses Consolidation Act (8 & 9 Vict. c. 18, s. 85) for 
 assessing the value of the land, preparatory to taking 
 compulsory possession of it (e). 
 
 See also, on the subject of restraining the officers of the 
 Court from seeking redress in other Courts, Ambrose v. 
 Dunmow Union ( /"). 
 
 (c) See in p. 122 of the Treatise (d) Page 127 et seq. 
 
 the third conclusion drawn from the (e) TinA: v, Ei/rjd/e, 10 Beav. 318. 
 
 then existing authorities. (/) 8 Beav. 43.
 
 ( 21 ; 
 
 PART II. 
 
 OF INJUNCTIONS TO STAY WRONGFUL ACTS OF A SPECIAL 
 NATURE. 
 
 CHAPTER I. 
 
 Injunctions against Waste. 
 
 1. Of equitable Waste. 
 
 2. Waste as between Mortgagor and 
 
 Mortgagee. 
 
 3. Waste by Ecclesiastical Corpora- 
 
 tions. 
 
 4. Cuses'on permissive Waste. 
 
 5. Injunctions to restrain Acts de- 
 
 structive of Property, analogous 
 to Waste. 
 
 6. Injunctions' to protect a Receiver 
 
 against Waste. 
 
 7. Injunctions against Trespass. 
 
 8. The Effect of Laches on the grant- 
 
 ing of Injunctions against Waste. 
 
 1. IN addition to the cases on this head referred to in 
 the Treatise, may be mentioned the two following cases, 
 Morris v. Morris {a) and Blagrave v. Blagrave{h). 
 
 Morris v. Morris decided that ornamental timber will 
 be protected, even though the mansion-house to which it 
 was originally appurtenant has been pulled down, at least 
 if there is any power in the settlement under which by 
 possibility those in remainder may have an interest in 
 preserving the timber. In the case referred to, there was 
 a power in the settlement to demise to persons who 
 should be willing to build houses or to repair houses, and 
 the Court relied upon that to some extent in aid of the 
 right of the remainder-man. The decision, however, seems 
 to have proceeded principally on the broad proposition, that 
 
 (a) 15 Sim. 505. 
 p. 144. 
 
 See Treatise, (A) 1 De Gex & Smale, 252.
 
 22 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 if timber has been planted, or intentionally left standing, 
 for ornament, the rule of the Court is to protect it. 
 
 In Blagrcwe v. Blagrave there was a singular provision 
 in a will. The limitations were to the testator's wife for 
 life, with several remainders for life, without impeachment 
 of waste, with a proviso that neither the testator's wife 
 nor any other person should mow any part of the park, 
 or feed the same with other cattle except cows, sheep and 
 deer. On an application for an injunction to restrain the 
 tenant for life in possession from mowing, it was objected 
 that the proviso was inconsistent with the estate. The Court 
 granted the injunction, but with great reluctance (c). 
 
 It has been seen in the Treatise (cZ), referring to Coffin 
 V. Coffin{e), that an injunction is not granted on the prin- 
 ciple that it will do no harm to the defendant if he does 
 not intend to coiiimit the act complained of; nor will an 
 injunction be sustained to prevent the defendant from re- 
 moving works which it is clear the plaintiff had no right to 
 erect, although it may be equally clear that such works 
 are not injurious to the defendant or to any one else(/). 
 In a subsequent case the same principle was followed. 
 The defendants, a company, had erected certain works of 
 a temporary and innocuous character, but without any 
 power to erect such works. Tlie Court suspended for a 
 limited time an injunction of the negative mandatory class, 
 which would in effect have compelled them to pull down 
 the works, putting the company on an undertaking to do 
 certain things, comprising all those things which their act 
 required them to do for the convenience of the plain tiff (^f). 
 
 But, on the other hand, if the injury has been commit- 
 ted, the party injured is not bound to accept the personal 
 undertaking of the defendant that he will not continue the 
 
 (c) Blagrave \. Blagrave, IDqGqk (f) London and Brighton Railway 
 & Smale, 252. Company v. Cooper, 2 Rail. Cas. 312. 
 
 (d) Page 147. (g) Attorney-General v. Eastern 
 
 (e) Jac. 70. Counties Railway Company, 3 Rail. 
 
 Cas. 337.
 
 CHAP. I,] OF A SPECIAL NATURE. 23 
 
 injury, but is entitled to the protection of an injunction. 
 Tliis was held in a case of Geary v. Norton{h), in which 
 the defendant had pirated a registered article, and, on 
 being apprised of his fault, and that a bill and affidavit 
 had been prepared, offered to pay the costs already in- 
 curred, and to suspend the sale of any of the pirated 
 articles of which he was the holder. The plaintiff, never- 
 theless, obtained an injunction, and the defendant not 
 offering to pay the costs of the injunction, the suit was 
 brought to a hearing. The Court held that the plaintiff 
 was entitled to the protection of an injunction, and to the 
 general costs of the suit. The defendant ought to have 
 offered, after the injunction had been obtained, to pay the 
 costs to that time, submitting to the injunction. It should 
 be observed, that there was evidence to show that the de- 
 fendant was informed, before formal notice was given to 
 him, of the intention of the plaintiff to apply (i). 
 
 2. It is well settled, that a mortgagee is entitled to an 
 injunction to restrain the mortgagor in possession from 
 cutting timber, provided it is made to appear, on behalf of 
 the plaintiff, that the land is an insufficient or scanty 
 security without the timber (A). But it is obvious that, in 
 the absence of authority, there might be as much doubt 
 as to what is, in point of law, a scanty security, as upon 
 any other question of mixed fact and law. In a recent 
 case, however, a sort of rule was laid down as to what is 
 meant by a sufficient security. It is not sufficient if the 
 property is just equal to the mortgage debt and all ex- 
 penses ; but the proper question to be tried is, whether 
 the property is sufficient in this sense, that the security is 
 worth so much more than the money advanced, that the 
 act of cutting timber is not to be considered as substan- 
 tially impairing the value, which was the basis of the 
 
 (/i) 1 DeGex & Smale, 9. (k) Eippesle'i v. Spencer, 5 JMndd. 
 
 (O See also Los/i V. Hague, Webs. 422; and see the Treatise, p. 1 63. 
 Pat. Cas. 200.
 
 24 INJUNCTIONS TO STAY WRONGFUL ACTS [pART II. 
 
 contract between the parties at the time it was entered 
 into (/). The affidavit in support of such a motion should 
 state enough of the facts showing the value of the security, 
 to enable the Court to judge for itself. 
 
 In a foreclosure suit, if after decree, the mortgagor, being 
 in possession, commits waste, an injunction will be granted 
 although the bill does not pray it (m). 
 
 3. Although generally a parson may not commit waste 
 of any kind, and although generally it may be said that 
 to convert pasture into plough land is waste, it is not every 
 conversion of pasture into plough land that is waste, even 
 on the part of a parson ; and where it appeared that part 
 of the glebe belonging to a rectory, which was ancient 
 pasture, was intermixed with moss and weeds, and the de- 
 fendant ploughed it up for the purpose of changing it and 
 relaying it with grass, and swore that he believed the effect 
 of his so proceeding would be to improve the land and in- 
 increase the value of the rectory, Lord Langdale, M. R., 
 refused to maintain an injunction. It is not to be collected 
 from this case that wherever it may appear as the reason- 
 able result of the evidence, that the ploughing up of ancient 
 meadow will be for the benefit of the land, the Court would 
 refuse to prevent the party in possession from so plough- 
 ing it up. The reasoning of the judgment shows, that it 
 is only intended to apply to cases where the right of abso- 
 lute ownership can never vest in any person, as in case of 
 an ecclesiastical corporation ; when, therefore, to hold the 
 mere ploughing up of pasture or other conversion to be 
 restrainable waste, without reference to its intended and 
 probable effects, would be to impose upon lands held un- 
 der such tenure the fetter of a permanent incapacity to be 
 improved. " By the law," said his Lordship, " as admitted 
 between lessor and lessee, or between tenant for life and 
 remainder-man, very valuable improvements in agricul- 
 
 (l) King V. Smith, 2 Hare, 239. (m) Goodman v. Kiite, 8 Beav. 379.
 
 CHAP. I.] OF A SPECIAL NATURE. 25 
 
 ture may be prevented during the temporary possession 
 of a tenant, or a succession of tenants for years or for life. 
 The time however comes when the fetters imposed by the 
 contract or relation between the parties may be released ; 
 but if you apply the same law to the case of a parson's 
 glebe, the course of husbandry and cultivation must remain 
 the same in all time. What is once arable or pasture must 
 always continue so, and no rector or vicar must employ 
 any part of his glebe in any other manner than he found 
 it employed, unless he can prove that it had been other- 
 wise employed within some limited antecedent time. In a 
 close which he cannot prove to have been employed other- 
 wise than as meadow, he is not to plough, nor to make 
 an orchard, nor to plant a bed of potatoes, however con- 
 venient or useful it might be for the parsonage that he 
 should do so. He must do nothing which, as between 
 landlord and lessee for years, the law has considered to 
 be waste. No authority has been cited for so general a 
 proposition, nor even upon the particular question, whe- 
 ther the Court ought to restrain the particular act now 
 complained of; and the only case of which I am aware in 
 which the Court has interfered to stay the conversion of 
 glebe meadow into pasture is the case of Hoskins v. Fea- 
 therstone (2 Br. C. C. 552), where the bill was filed not 
 against the incumbent, but against the widow of an in- 
 cumbent, who was doing the acts complained of during a 
 vacancy (w)." 
 
 4, In a case of King ham v. Lee(o) an attempt was made 
 in argument to construe the decision in Lord Ormond v. 
 Kinnersley (p) as meaning that a tenant for life with a con- 
 dition not to commit or permit waste is completely a trustee, 
 so that if he alienes, thereby enabling the alienee to commit 
 a breach of the trust, he remains himself liable for such 
 breach. The Court would not, however, accede to this. 
 
 (n) DiikeofSl. Alban'sv.Skipwith, (p) 5 Mad. 369 ; and see Treatise, 
 
 8 Beav. 354. p. 175. 
 
 (o) 15 Sim. 396.
 
 26 INJUNCTIONS TO STAY WRONGFUL ACTS [pART II. 
 
 '' Where an estate for life," said Sir L. Shadvvell, V.C.E., 
 " is given subject to a condition or obligation not to commit 
 or permit waste, the tenant for life has the same unre- 
 stricted power to vest the estate in any other person as he 
 would have had if it had not been subject to any condition 
 or obligation whatever ; but this Court would of course 
 interpose to prevent either him or his alienee from doing any 
 act which would be a breach of the condition or obligation, 
 and would make them, if they were living, or their assets, 
 if they were dead, answerable for any benefit which they 
 might have derived from such breach," Accordingly, in 
 the case before the Court, it was held that where a woman, 
 tenant for life with a condition against waste, married, and 
 died leaving separate estate, and her husband had com- 
 mitted waste during the coverture, her separate estate 
 could not be charged with the waste. The case was heard 
 on demurrer, and the bill did not clearly allege that the 
 feme tenant for life had separate estate, but the decision 
 was pronounced on the assumption that the fact was well 
 averred. With reference to the case of Lord Ormond v. 
 Kinnersley , it is quite clear that all that Sir J. Leach meant 
 was, that the condition was in the nature of a trust affect- 
 ing the tenant for life whoever he might be, making him 
 an owner coupled with a limited trust not to commit waste ; 
 not that it was a personal trust incapacitating the tenant 
 for life from the right of alienation incident to his bene- 
 ficial ownership. Kingham v. Lee, therefore, and Lord 
 Ormond v. Kinnersley are perfectly consistent {q). 
 
 5. It has been decided, where a person domiciled abroad 
 left personal estate both in the foreign country and in 
 England, that his administratrix having taken out letters 
 of administration in both countries, and being under a 
 
 (g) I make this observation be- Lord Ormond v. Kinnersley is over- 
 cause a hasty perusal of the marginal ruled by Kingham v. Lee, whereas it is 
 note of Kingham v. Lee might lead to explained, not overruled by that case, 
 the supposition that the doctrine of
 
 CHAP. 1.] OF A SPECIAL NATURE. 27 
 
 bond to the foreign court properly to manage the English 
 property, will not be restrained at the suit of a mortgagee 
 in England of part of the foreign property, from trans- 
 mitting the English personalty to the foreign country : the 
 Court assumes that the foreign court will do justice (r). 
 
 On the question respecting interference with the per- 
 sonal estate of a testator or intestate pending litigation in 
 the Ecclesiastical Court respecting the grant of probate 
 or letters of administration, see Connor v. Connor {s) and 
 Newtony. Ricketis (t), in addition to the cases cited in the 
 Treatise (m). 
 
 6. As to who may apply for an injunction to protect a 
 receiver against waste, it has been held that the applica- 
 tion must be made by some person having an interest in 
 the estate; the agent of such a party, without showing 
 any authority from his principal, cannot make it, even 
 though he is a party to the suit (x). 
 
 7. In a recent case(?/), the V. C. Knight Bruce intimated 
 that the protection afforded in equity in cases of mere 
 trespass accompanied by destructive damage to property, 
 is more largely afforded at this day than it was formerly. 
 " I am not convinced," says that learned judge (p. 235 of 
 the Report), " that where a man is in possession, however 
 full and complete, of an estate by a title simply and merely 
 adverse to that of another by whom the estate is, whether 
 at law or in equity, claimed against him, without any 
 privity between them, such a state of things, if the party 
 in possession by his answer, whether truly or untruly, 
 swear his title to be just and valid or that of his adversary 
 to be unjust and invalid, — does of necessity prevent a 
 court of equity from interfering (before any judgment at 
 
 (r) Wallace v. Campbell, 4 Y. & (x) Hunter v. Nockholds, \0 J mist, 
 
 Coll. 167. 771. 
 
 (s) 15 Sim. 598. (y) Ilaigh v. Jaggar, 2 Coll. C.C. 
 
 (0 lOBeav. 525, 231. 
 (u) Pp. 177, 178.
 
 28 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 law or decree in equity) to restrain the party in possession 
 from stripping the estate of its timber, pulling down the 
 mansion-house upon it, or other such acts. It is, I think, 
 certainly true, that the Court of Chancery does not treat 
 questions of destructive damage to property now exactly 
 as it did forty or fifty years back ; that its protection in 
 such respects is more largely afforded than it then gene- 
 rally was." 
 
 Still, as to mere trespass, the jurisdiction is not extended. 
 In a very recent case (2), where the plaintiffs and defend- 
 ants were both railway companies, an injunction was asked 
 which was in part to restrain the defendants from crossing 
 the plaintiffs' line, and from using, for purposes alleged to 
 be illegal, certain branch rails and a station which it was 
 admitted they had a right to use for some purposes, — in 
 effect, to restrain the defendants from committing trespass. 
 Sir. J. Wigram, V. C, thus stated the doctrine, — " The 
 jurisdiction of this Court to grant injunctions in cases 
 of pure trespass is comparatively of modern establishment; 
 but it is now clearly settled, that in cases of trespass under 
 colour of title, where the mischief is irreparable, the juris- 
 diction of the Court exists ; and I incline strongly to the 
 opinion, that whether the mischief be irreparable or not, 
 this Court ought by decree at least, if not upon motion, 
 to extend and apply the jurisdiction of preventive justice 
 to all cases of trespass in which, by analogy to cases of 
 specific performance, damages would be an inadequate 
 and uncertain remedy, and the protection of the right in 
 issue the only mode of doing complete justice between the 
 parties." In this case it was not shown that destruction 
 or irreparable injury would accrue, and on that ground no 
 injunction was granted. 
 
 Care must be taken, in applying this head of equitable 
 jurisdiction, to distinguish cases of proper trespass from 
 cases where the legal right is in dispute, and from those 
 where the trespass is, as expressed in the above cited 
 
 (z) The Union Railway Company v. Bolton and Preston Railway Company, 
 3 Rail. Ca. 345.
 
 CHAP. I.] OF A SPECIAL NATURE. 29 
 
 case, under colour of title. Pure trespass is only where 
 the plaintiff is in possession, for it is elementary that 
 without possession a man cannot bring trespass though 
 he has the freehold in law. Where the plaintiff is out 
 of possession, and the person in possession claims title, 
 that is matter of ejectment, not of trespass; and equity 
 has not in any such case interfered till the title has been 
 established at law. Where the question is, not whether 
 the defendant has any right, but what is the extent of 
 his right, that is what has been termed trespass under 
 colour of title; and in cases of this class equity may 
 interfere. 
 
 That the Court does not interfere against waste, when 
 the plaintiff claiming title is out of possession, and the title 
 is in dispute, appears as well by the case of Jones v. 
 Jones {a), and the other cases referred to in the Treatise(6), 
 as by a very recent case decided by the Vice-Chancellor 
 Wigram (c). In that case the bill was filed by a person 
 who, setting out a pedigree, alleged himself to be entitled 
 to the inheritance, and that the defendant's ancestor, 
 under some pretended title unknown to the plaintiff, got 
 into possession nearly twenty years before, and died in 
 1845; and that the defendant thereupon, under such pre- 
 tended title, entered into possession, and had continued and 
 then was in possession, &c. The bill alleged that the j)lain- 
 tiff had not discovered his own title till within a very recent 
 period ; that the defendant threatened and intended to cut 
 down ornamental and other timber and other trees, and to 
 sell, and had marked trees for cutting, &c., and that 
 therehy irreparable injury would be done. The defendant 
 demurred. The Court said there was no case upon real 
 estate where a party out of possession coming to the 
 Court and complaining of another party in possession, and 
 claiming a right to be in possession, has granted an in- 
 junction restraining the defendant from using the legal 
 
 (a) 3 Mer. 161. (c) Davenport v. Davenport, 7th 
 
 (6) P. 188 et seq. March, 1849, MS.
 
 30 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 rights claimed by him, until the actual right is declared at 
 law. It was pressed on the part of the plaintiff, firstly, 
 that the rule applied to personal property of various kinds, 
 protecting it while the legal right is in course of deter- 
 mination, ought to be applied equally to the protection 
 of real estate. 2ndly, That though the Court might refuse 
 an injunction in such a case on interlocutory application, 
 yet that was no reason for allowing a demurrer, because 
 possibly at the hearing of the cause ground might exist 
 for an injunction, and the bill ought therefore to be re- 
 tained. But his Honor acquiescing in the observations 
 of counsel as to the anomalous state of the law, considered 
 the decision in Jones v. Jones applicable on both points, 
 and allowed the demurrer. 
 
 It may be observed on this case and the case of Jones 
 V. Jones, and the doctrines involved in them, that perhaps 
 there is not ground for saying that the law is in an ano- 
 malous state. The principle of the interference of equity 
 by injunction is, throughout, never to interfere against an 
 apparent legal right, or claim of legal right, except where 
 the result of non-interference will be, in the apprehen- 
 sion of the Court, destructive of the w^hole or a part of the 
 plaintiff's property, if it turns out that he has the legal 
 right. Equity interferes on this ground more freely in 
 regard to personal property, for the simple reason that 
 personal property is more susceptible of total destruction 
 than real property. If a defendant has possession of a 
 chattel, or of stock, or is in the exercise of a patent right 
 or other incorporeal right, to refuse an injunction may be, 
 under circumstances, to determine in effect the right on 
 motion, by permitting the destruction or total removal of 
 the subject-matter of it. But it is otherwise with regard 
 to land ; and the true principle of the decisions in Jones v. 
 Jones, and Davenport v. Davenport, is, I apprehend, that 
 timber is not in law a part, but only a fruit of the in- 
 heritance. Cutting it does not cause what the law holds 
 destruction of, or irremediable injury to, the property in
 
 CHAP. I.] OF A SPECIAL NATURE. 31 
 
 dispute; and hence, if for no other reason, an injunction 
 cannot be granted. Whether, if a plaintiff swears to a 
 positive title, the defendant would or not be restrained 
 from committing destruction, such as digging up the sub- 
 stance of the inheritance, on the mere ground of his pos- 
 session, has, I believe, never been decided. All the cases 
 in which the Court has actually refused to interfere, have 
 been cases of waste not being in legal language destruc- 
 tive {d). \n Davenport \. Davenport the bill alleged, it 
 is true, that irremediable mischief would ensue, but it is 
 obvious that if the law does not, as it clearly does not, 
 consider cutting timber to be irremediable mischief, al- 
 leging it to be so, will not have the effect of making it 
 so on demurrer. It is to be observed that Fingal v. 
 JBlake (e), in which an heir at law in possession was re- 
 strained, was not cited in Davenport v. Davenport. 
 
 8. On this, some late cases have been decided confirma- 
 tory of the doctrine of the older cases. Thus where a party 
 filed his bill for an injunction, and moved, and the motion 
 stood over, and was not brought on again for a twelve- 
 month, the Lord Chancellor said an immediate injunction 
 could only be granted on the ground that, to wait for the 
 decree, would be productive of great or unknown mischief 
 to the plaintiff; that if a complainant makes his applica- 
 tion to the Court, and allows it to slumber, the Court 
 will not interpose in his favour when he shows by his own 
 conduct that he does not consider such interference to be 
 imperative ; and refused the motion (f). 
 
 (d ) In Jones v. Jones the bill (e) 2 Mol. 542 ; and see the 
 
 prayed an injunction against destruc- Treatise, p. 189. 
 
 tion ; but it does not appear by the (/) Pickford v. Grand Junction 
 
 report what were the acts done or Railway Company, 3 Rail. Cas. 538 ; 
 
 intended. In Smith v. CoUyer (^8 Ves. see also Powell v. Thomas, 6 Hare, 
 
 89) the act was cutting timber. 300 ; Haines v. Taylor, 2 Phil. 209.
 
 «?■ 
 
 32 
 
 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 CHAPTER II. 
 
 Injunctions to restrain Infringement of Copyright. 
 
 1. The Copyright Act, 5 S; 6 Vict. 
 
 c. 45. 
 
 2. Doctrine of Byron v, Johnstone. 
 
 3. What is fair Use of a preceding 
 
 Puhlication, 
 
 4. Effect of putting forth a Work as 
 
 the Work of another. 
 
 5. Injunctions to restrain Publication 
 
 of Letters. 
 
 6. Injunctions to restrain Publication 
 
 of unpublished Works. 
 1 . Copyright in Designs. 
 
 8. Copyright of a Foreigner. 
 
 9. Copyright in Dramatic Exhibitions. 
 
 1. The late Copyright Act, 5 & 6 Vict. c. 45, repeals 
 the 8 Ann. cap. 19, the 41 Geo. III. c. 107, and the 
 54 Geo. III. c. 156. It defines copyright to mean the 
 sole and exclusive liberty of printing or otherwise multi- 
 plying copies of any subject to which the word is applied 
 in the act. It defines book to mean and include every 
 volume, part, or division of a volume, pamphlet, sheet of 
 letter-press, sheet of music, map, chart or plan, separately 
 published ; and dramatic piece to mean and include every 
 tragedy, comedy, play, opera, farce, or other scenic, mu- 
 sical, or dramatic entertainment. It does not, however, 
 introduce any general alteration which would have the effect 
 of rendering useless the learning of the cases decided be- 
 fore the statute. 
 
 It has been stated in the Treatise (a), that to support an 
 injunction in cases of copyright, a prima facie legal title 
 must be shown. This expression is perhaps somewhat in- 
 accurate ; what must be shown, is a prima facie legal title, 
 
 (a) P. 192.
 
 CHAP, II.] OF A SPECIAL NATURE. 33 
 
 or an equity to have one. Formerly, it would seem, a 
 legal title was required ; but, since the case of Mawman 
 V. Tegg {b), a different doctrine has been acted on, and, in 
 addition to the cases referred to in the Treatise (c), may be 
 mentioned Chap-pel v. Purday {d), and Bohn v, Bogue (e), 
 There seems nothing in the 5 & 6 Vict. c. 45, to alter the 
 practice laid down by these cases. However, the practice 
 of putting the defendant on terms to admit at law the 
 legal title of the plaintiff, is only applicable where the 
 question for a court of law is not the plaintiff's title ge- 
 nerally, but the fact of infringement or no infringement. 
 Where the plaintiff is put or left to establish his title ge- 
 nerally in an action, the defendant cannot be called upon 
 to make any admissions. The whole affirmative of the 
 issue is upon the plaintiff (/). 
 
 If the copyright claimed is by assignment under the 
 8 Ann. c. 19, the assignment, to be good at law, must be 
 not only in writing, but attested by two witnesses (g). 
 
 The 5 & 6 Vict. c. 45, s. 18, has introduced a new spe- 
 cies of title to copyright, viz. that acquired by employ- 
 ing and paying persons for writing in periodical works. 
 The essential circumstance necessary to the creation of 
 this species of copyright seems to be, that the writer 
 shall be specifically employed to compose the contribution 
 to the periodical, and that the contribution shall be com- 
 posed under such employment on the terms that the copy- 
 right shall belong to the employer, and be paid for by him. 
 It has been doubted whether, when the publishers of a pe- 
 riodical pay an editor generally for compiling the periodi- 
 cal, and the editor employs and pays the writer of parti- 
 cular articles, the copyright in such writings is in the pub- 
 lisher, within the 5 8c 6 Vict. c. 45 (h). 
 
 (b) 2 Russ. 385, referred to on this 2 Phil. 683 ; and see the observations 
 point in the Treatise, pp. 196, 197. of Lord Cottenham in Etderton v. 
 
 (c) P. 197. Lack, 2 Phil. 683. 
 
 (d) 4 Yo. & Col. Eq. Exch. 485. (g) Davidson v. Bolvi, 12 Jurist, 
 
 (e) 10 Jurist, 420. 922. 
 
 (/) Duke of Beaufort v. Morris, (/i) Brown v. Cooke, 11 Jurist, 77. 
 
 D
 
 34 INJUNCTIONS TO STAY 'WRONGFUL ACTS [PART II. 
 
 It must be observed also, that by the 24th sect, of the 
 5 & 6 Vict. c. 45, no proprietor of copyright in any book 
 which shall be first published after the passing of the act 
 can proceed at law or in equity in respect of any infringe- 
 ment, without having first made an entry in the book of 
 the registrar of the Stationers' Company pursuant to the 
 act. (See sections 13 and 19.) So that an injunction bill 
 to restrain infringement of copyright under the 5 &: 6 Vict. 
 c. 45, should aver that registration has been duly made. 
 
 2. With reference to the jurisdiction exercised in Byron 
 v. Johnstone (i), to restrain the publication of a work 
 in the name of an author, when there is strong ground 
 to believe it is not that author's work, it must be ob- 
 served, that the principle of that jurisdiction is, that a 
 work shall not be published in the name of a person who 
 repudiates it; or, as a more general proposition, that a 
 fraudulent use shall not be made of another's name, 
 affecting his rights of property ; but, to lay the ground 
 for this interposition of equity, it is requisite that the 
 plaintiff shall be in the habit of doing the thing that the 
 defendant represents him to be doing ; for if he is not, he 
 is not damnified in his property. Therefore, where an 
 eminent physician, who was not in the habit of making 
 medicines for sale, filed his bill for an injunction to restrain 
 A. from vending certain pills, which he represented as the 
 plaintiff's, so as to hold out that they were compounded 
 by and sold on behalf of the plaintiff, the Court refused an 
 injunction. The Court held that the case was defama- 
 tion, if any thing; that equity could not determine whe- 
 ther it was so or not ; and that it could not be considered 
 at all made out, that the act of the defendant could be 
 any injury to the property of the plaintiff (A). The deci- 
 sion is at least singular, and seems founded on an exag- 
 gerated idea of the impregnability of a high professional 
 
 (i) 2 Mer. 29; and see Treatise, (k) Clark v. Freeman, 12 Jurist, 
 
 p. 195. 149.
 
 CHAP. II. J OF A SPECIAL NATURE. 35 
 
 reputation. That the act of the defendant amounted to a 
 fraudulent use of the plaintiff's name, cannot be doubted. 
 Neither can there be much doubt that the plaintiff might 
 be injured in reference to property by such fraudulent act, 
 since it is tolerably clear, that if the public believed the pills 
 were compounded by the plaintiff, they would or might 
 be induced to buy the pills instead of consulting him. In 
 Milling ton v. Fox (Z), the Court held that there is a title 
 in trade marks, independently of fraud; and if that is so, 
 surely there is in every one a title in his name, indepen- 
 dently of fraud. At any rate it is perfectly clear, that a 
 fraudulent adoption by one trader of the name, or style, or 
 trade mark of another; any fraudulent representation, in 
 fact, leading the public to suppose that they are dealing 
 with another, will not be permitted, on the ground of its 
 being a fraud on the party and the public. And it may 
 be thought that there is no distinction as to fraud of that 
 double kind, between the fraudulent use of a tradesman's 
 name or mark, whereby the public buys from another, in- 
 tending to buy from and believing they are buying from 
 him; and the fraudulent use of the name of an eminent 
 professional man, whereby the public buys something, be- 
 heving it to be his production, the result of which buying 
 and belief may be, as to the individual, either by actual 
 loss of business, or by injury to his reputation, to contract 
 the professional employment given to him by the public. 
 That such use of an eminent man's name is a fraud on the 
 public, is clear. 
 
 3. (m) The doctrine that it is value and not quantity of 
 matter pirated that influences the Court, was acted upon 
 in Bohn v. Bogue (w), although the defendant had taken 
 a very small portion of the plaintiff's work ; yet as his own 
 statement gathered from his preface was, that what he had 
 
 (0 3Myl.&C.338; seeTreat.232. (li) Cited supra, p. 33. 
 
 (m) See p. 197 et seq. of the Treat. 
 
 d2
 
 36 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 rejected was worthless, so that in effect he had taken the 
 very marrow of the plaintiff's work, an injunction was 
 granted. So in another case (Campbell v. Scott) (o), 
 which was a case of alleged infringement by printing whole 
 passages from the plaintiff's book, the taking of the plain- 
 tiff's compositions by the defendant was admitted ; the 
 defence was, that the matter taken from the plaintiff was 
 trivial in quantity, and that it was used by way of illus- 
 tration, and could not injure the plaintiff's sale. The 
 Court thought it was not used merely by way of illustra- 
 tion, but formed part of the substratum of the defendant's 
 work; and, as to the question of damnum, it was held 
 that where there was clearly injuria, the damnum was 
 matter of which the plaintiff was to judge, and an injunc- 
 tion was granted. 
 
 When it is said that a bona fide abridgment (js) will not 
 be restrained, it must be understood that abridgment is 
 not merely eliminating passages from another man's work, 
 but that use of it which, in the fair exercise of a mental 
 operation, deserves the character of an original work [q). 
 
 In Dickens v. Lee the plaintiff's work was an imagina- 
 tive tale; the defendant had taken the fable, the cha- 
 racters, the incidents, the names, and even the style of 
 language. It is to be gathered from the report, that thus 
 using all the plaintiff's materials, he had told the story in 
 a shorter manner, and he relied upon abridgment as his 
 defence ; but the Court held that such an abridgment was 
 not an exercise of mental labour deserving the character 
 of an original work, and maintained an injunction, putting 
 the plaintiff to establish his right at law, if the defendant 
 desired it. 
 
 4. The decisions on this head (?') proceed more on the 
 ground of fraud than of invasion of property ; to this prin- 
 
 (o) 11 Sim. 31. (g) ^Vilk■ms v. Aitkin, 17 Yes. 422; 
 
 (p) See p. 199 of the Treatise. and Dickens v. Lee, 8 Jurist, 183. 
 
 (j) See p. 203 of the Treatise.
 
 CHAP. II.] OF A SPECIAL NATURE. 37 
 
 ciple may be referred the case of Seeley v. Fisher (s), 
 where an injunction was granted to restrain A. from put- 
 ting forth his work under advertisements which the Court 
 below thought tended to produce the impression, contrary 
 to the truth, that it contained matter which was in fact the 
 property of B. But if there be no such fraudulent misre- 
 presentation, but only statements which, whether true or 
 false, tend merely to encourage a belief that the matter 
 contained in A.'s work is the truly valuable matter, and 
 that contained in B.'s is spurious and of no value, an 
 injunction will not be granted to restrain such representa- 
 tions; and, on the ground that such was the true effect of 
 the advertisements, the Lord Chancellor dissolved the in- 
 junction. 
 
 5. To the cases referred to in the Treatise {t) on this 
 subject may be added the recent case of Palin v. Gather- 
 cole {u). In that case the point decided as to the right of 
 the receiver of letters to publish them was this, that he 
 will not be permitted to publish them for the purpose of 
 representing to the public as true, that which he has, in 
 legal proceedings upon that very question, admitted to be 
 false. The circumstances of that case were these : — Palin, 
 the plaintiff, had written to Gathercole, the defendant, 
 who was the editor of a newspaper, ceitain letters, con- 
 taining information respecting one Nokes, and Gather- 
 cole, from these letters, drew up an article which he pub- 
 lished in his newspaper. Nokes brought an action against 
 him for libel, and he compromised the action, paying 
 Nokes' costs, and apologizing. Gathercole then claimed 
 of Palin half the costs that he, Gathercole, had so incurred, 
 and Palin refusing to pay them, Gathercole published in 
 his newspaper a statement that the libel upon Nokes was 
 communicated to him, Gathercole, by Palin. Palin there- 
 
 (s) 11 Sim. 581. (m) 1 Coll. 565. 
 
 (t) See p. "206 et ieq. of Treatise.
 
 38 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 upon brought an action against Gathercole, and Gathercole 
 pleaded that the matter, however Hbellous as between Nokes 
 and Gathercole, was matter of which, as between Palin and 
 Gathercole, Palin was the author ; but before trial Gather- 
 cole submitted to what was in effect a general verdict, esta- 
 blishing in substance, as his Honor the V. C. Knight Bruce 
 expressed it in his judgment, that the libel published by 
 Gathercole of Nokes was not a libel which Palin had 
 communicated to Gathercole. Gathercole then proceeded 
 to show Palin's letters to third persons, upon which Palin 
 filed his bill for an injunction to restrain Gathercole from 
 publishing or showing the letters, and obtained an ex 
 parte injunction. The use which Gathercole desired to 
 make of the letters was, it will be observed, to establish 
 the fact that Palin was the author of the libel upon Nokes, 
 the very fact which he had, by submitting to the general 
 verdict in Palin's action, admitted not to exist. Under 
 these circumstances the Court refused to dissolve the in- 
 junction, permitting, however, the defendant to exhibit the 
 letters to his solicitors and counsel in the cause. 
 
 6. These cases rest upon the principle of property, in 
 the sense of one's exclusive right to the use of his own pro- 
 duction, in any way except by making it the subject of 
 copyright, strictly so called (y). 
 
 The recent case o^ Attorney -General v. Strange raised 
 this question, whether on the ground of property, apart 
 from all question of fraud, a person composing etchings 
 can restrain another, who, without his consent, has ob- 
 tained copies of such etchings, from publishing a catalogue 
 of them ; and it was held by the Vice-Chancellor Knight 
 Bruce {w), and afterwards on appeal by the Lord Chan- 
 cellor (x), that he can. 
 
 On this point Lord Cottenham said, " it being admitted 
 
 {v) See p. 209 of the Treatise. {x) 13 Jurist, 109. 
 
 (u)) 13 Jurist, 45.
 
 CHAP. II.] OF A SPECIAL NATURE. 39 
 
 that the defendant could not pubHsh a copy, that is, an 
 impression of the etchings, how on principle does the case 
 of a catalogue, list, or description, differ ? A copy or im- 
 pression of the etchings could only be a means of commu- 
 nicating knowledge and information of the original; and 
 does not a list and description do the same ? The means 
 are different, but the object and effect are similar. It is 
 to make known to the public more or less the unpublished 
 works and compositions of the author, which he is entitled 
 to keep wholly for his private use and pleasure, and to 
 withhold altogether, or so far as he may please, from the 
 knowledge of others." 
 
 7. A species of copyright is given in designs for orna- 
 menting certain manufactures, and for designs having 
 reference to some purpose of utility for the shape or con- 
 figuration of manufactures, by the 5 & 6 Vict. 100, and 
 6 & 7 Vict. c. 65. 
 
 The 3rd section of the first statute gives to the pro- 
 prietor of any design within the meaning of the act, the 
 sole right to apply such design to any article for a limited 
 time. The 7th section enacts, that no person shall apply 
 any such design, or any fraudulent imitation thereof, for 
 the purpose of sale, without the licence in writing of the 
 proprietor. It has been determined, that the general lan- 
 guage of the entitling section, the 3rd, is not cut down by 
 that of the 7th, and that an irijunction will be granted to 
 restrain a person from applying the plaintiff's design to 
 any article during the term of the copyright, though he 
 does not sell such article, and does not intend to sell it 
 during the term (?/). 
 
 8. The point discussed in the Treatise (z) in reference to 
 D'Almaine v. Boosey (a) has been conclusively settled 
 
 (y) M'Creav.Holdsworth, 12 Jurist, (s) P. 216. 
 
 820. (a) 1 Y. & Col. 288.
 
 40 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 by a late case {h), in which it was laid down by the whole 
 Court of Common Pleas, that an alien friend, the author 
 of a work, of which he is also the first publisher in Eng- 
 land, and which has not been made publici juris by a 
 previous publication elsewhere, has a copyright in that 
 work, whether it be composed in this country or not, and 
 that such copyright is not defeated by a cotemporaneous 
 publication abroad. 
 
 9. Under the 5 & 6 Vict. c. 115, the author of any dra- 
 matic piece of music has the sole liberty of representing 
 or performing it generally, that is, anywhere, and not as 
 in the case of ordinary dramatic works, only at some 
 places of dramatic entertainment ; and therefore the author 
 of a song, and of the music to which it is set, will be pro- 
 tected by injunction against its being publicly performed, 
 sung or recited generally (c). 
 
 (6) Cocks V. Purdai), 12 Jurist, 677. (c) Russell v. Smith, 15 Sim. 181.
 
 CHAP. 
 
 III.] 
 
 OF A SPECIAL NATURE. 
 
 41 
 
 CHAPTER III. 
 Injunctions to restrain the Infringement of Patents. 
 
 , Disiinciion as to when the Court 
 will interfere and when not. 
 
 . Wheti a Party does not move within 
 a reasonable Time of filing the Bill, 
 
 , Where the Equity appears only by 
 the Answer. 
 
 4. What Affidavit requisite to support 
 Application, and when Motion is on 
 Notice. 
 
 5. Of granting Inspection. 
 
 Although a verdict has been obtained by a patentee, 
 yet if it is subject to a bill of exceptions properly tendered, 
 the Court will not in general consider the trial complete, 
 and will not grant an injunction till the bill of exceptions 
 is disposed of (a). And although a patent may have been 
 the subject of several actions, in all of which the novelty 
 and utility of the invention have been put in issue, and 
 verdicts have been for the patentee, yet if on a bill filed by 
 him against another person, the defendant's case is, that 
 his alleged infringement is quite different from those which 
 were in issue in the actions, an injunction will not be 
 granted pending the trial of the right, merely on the 
 ground of the plaintiff having succeeded in the actions (b). 
 
 (a) Bridson v. M'Alpine, 8 Beav. 
 229. 
 
 (b) Crosshill v. Every, Rolls, Ja- 
 nuary 20, 1848, MS. ; and see a re- 
 port of this case in 10 Law Times, p. 
 459, which somewhat overstates the 
 effect of the decision. The writer was 
 counsel in the case of Crosshill v. 
 Every, and is able to state from per- 
 sonal recollection, the point, and the 
 
 only point, which was actually de- 
 cided. The defendant's case, in sup- 
 port of which he tendered evidence, 
 was, that the machine made by hini 
 difl'ered very much from those made by 
 the defendants in the cases in which the 
 plaintiff had recovered verdicts at law. 
 The question of fact, therefore, between 
 him and the plaintiff was quite distmct 
 from that in the cases in which ver-
 
 42 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 In Brichon v. Benecke (c) the Master of the Rolls again 
 laid it down that a verdict in an action between A. and B. 
 is not conclusive for the purpose of granting an injunction 
 pending the trial of the light in a suit for an injunction 
 between A. and C. ; but the Court will give great weight 
 to it, especially so far as the points raised between A. and 
 C. are the same as those determined between A. and B. 
 
 As to the effect of laches in a plaintiff who has obtained 
 an injunction on the terms of speedily trying the right, 
 the following case has recently been decided. 
 
 An injunction was granted at the end of Michaelmas 
 term, on the terms of the plaintiff bringing his action at 
 the sittings after that term, and it was in the paper for 
 trial in February, but the plaintiff" postponed it on account 
 of the absence of his leading counsel, and afterwards again 
 postponed it because there was not a sufficient number of 
 special jurymen present, so that the action had not been 
 tried on the 29th of July. The Court held that the injunc- 
 tion was not to be sustained because the plaintiff", for his 
 own convenience, had neglected to go to a speedy trial, and 
 dissolved it (d). 
 
 It has been stated in the Treatise (e) that it would be 
 perceived from the cases there referred to, that wherever 
 there is any considerable doubt as to the validity of a 
 patent at law, an injunction is either not granted al all, or 
 is only granted on terms, in order to prevent irreparable 
 damage before the title can be tried at law. 
 
 The application of this principle to each particular case 
 will however depend on the circumstances of the case ; 
 and in considering whether an injunction will be granted 
 or refused in the first instance, pending the determination 
 of the legal right, it must be considered whether irre- 
 parable or great injury will have been done to the de- 
 
 dicts had been given; and on this (c) Rolls, February 9, 1849. MS. 
 
 ground it was that the Court intimated (d) Stevens v. Keating, 2 Pbill. 
 
 that the verdicts w^ould not entitle the 333. 
 
 plaintiff, as a matter of course, to an (e) Page 223. 
 
 injunction.
 
 CHAP, in.] OF A SPECIAL NATURE. 43 
 
 fendant by the injunction, should the plaintiff's legal right 
 fail ; or to the plaintiff by refusing it, should he turn out 
 to have a legal right. Generally it may be said, that 
 unless the plaintiff's legal right is clear, the Court will not 
 at this day grant an injunction while the legal right is in 
 course of trial {f). 
 
 It has been also stated in the Treatise (^), that in the case 
 of Bacon v. Jones, Lord Cottenham had observed that he 
 never had granted, and probably never vi^ould grant, an 
 injunction to restrain infringement of a patent without 
 putting the plaintiff to try the right at law, if the defend- 
 ant desired it. This point has been since much discussed. 
 In a case of Wilson v. Tindal{h), Lord Langdale, M. R., 
 said, arguendo, he had no doubt of the competency of the 
 Court to grant an injunction simpliciter ; that it was not 
 the right of parties in every case to have an action tried 
 in a court of law ; that it is a question of convenience, 
 and that the Court is to exercise a fair discretion. How- 
 ever, in Harman v. Jones {i), Lord Cottenham held that 
 where the legal right is in contest, it is the duty of the 
 Court, in granting an injunction, to put the legal question 
 in a course of immediate investigation, whether that be 
 asked for or not; and an injunction simply, without a 
 direction to the plaintiff to bring an action, or without 
 some direction for the trial of the legal right, will, on the 
 ground of that omission only, be varied. So if an injunc- 
 tion is refused, the order is not correct if it does not con- 
 tain some direction enabling the parties to proceed at 
 law (A). And where the injunction is to restrain a party 
 from enforcing a legal right, the Court ought not to grant 
 it without securing to itself the means of putting him in 
 the same position, in the event of his turning out to be 
 right, as if the Court had not interfered (/). 
 
 (f) Spottiswoode V. Clarke, 2 Ph\\. {k) Swallow v. Wallingford, 12 
 ]54. Jurist, 403. 
 
 (g) Page 224. (/) Sancsterv. Foster, 1 Cr.Si Phil, 
 (ft) Webs. Pat. Cas. 730. 302. 
 
 (i) 1 Cr. & Phil. 299.
 
 44 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 From these cases, and from the doctrine so frequently 
 laid down by Lord Cottenham, that the Court is not in 
 matters of injunction to try a legal right, it seems to 
 follow, that the dictum in Wiho7i v. Tindal cannot be sup- 
 ported, and that it is of right in the parties to have a trial 
 at law of some kind of the legal right. 
 
 2. On the question, what the Court will do at the hear- 
 ing, where a party files a bill praying an injunction, and 
 does not move within a reasonable time after filing the 
 bill for an interlocutory injunction (m), some important 
 distinctions have been taken in recent cases. Where in a 
 case upon the right to a trade mark, these circumstances 
 existed, but at the hearing, though the plaintiff did not 
 establish by the evidence his right to the injunction, the 
 evidence showed that the defendants had at least acted so 
 that the public might think they were buying the plaintiff's 
 goods, the Court offered to the plaintiffs to retain the 
 bill, if they would waive all account and pay the costs of 
 the evidence ; and if they refused that, then it offered to 
 the defendants to dismiss the bill without costs, or to retain 
 the bill with liberty to bring an action (n). But if a plain- 
 tiff has obtained an injunction on filing, or within a rea- 
 sonable time of filing the bill, without being put to establish 
 his right at law, and the cause goes on to a hearing, and 
 at the hearing the defendants still contend that they have 
 a right to do the acts complained of, the Court will not 
 dismiss the bill, but will retain it for a time, with liberty 
 for the plaintiff to bring an action (o). And here it may 
 be observed, that a plaintiff whose right to equitable as- 
 sistance depends on the legal right, may move at once for 
 leave to try the legal right, without asking for an injunc- 
 tion, if the answer denies the legal right (p). 
 
 (n:) See p. 224 of the Treatise, Hare, 340; and Ward v. Key, 10 
 
 (n) Rodgers v. Nowitl, 6 Hare, 325. Jurist, 792. 
 
 (o) Dithe of Beaufort v. Morris, 6 (;>) Rodgersv. Poivell, 6 Rare, 332.
 
 CHAP. III.] OF A SPECIAL NATURE. 45 
 
 3. A point similar to that raised in Curtis v. Cults {q) 
 was decided in a very recent case (r), where the Vice-Chan- 
 cellor of England held that a common injunction could 
 not be maintained where the answer denied all the plain- 
 tiff's case, but made by other allegations a case, on which, 
 if the plaintiff had made them, he would have had an equity 
 for an injunction. Curtis v. Cittts was not cited in this 
 case (s). 
 
 4. {t) Whether, to support an application for an injunc- 
 tion made upon notice, an affidavit is necessary that the 
 plaintiff believes himself the true inventor at the time of 
 making the application, cannot be considered as settled 
 by decision, and may be doubted. In Hill v. Tliomp- 
 son{u) Lord Eldon was not only dealing with an ex parte 
 application, but expressly confined his remarks to such an 
 application. In Sturz v. De la Rue (u) Lord Lyndhurst's 
 expression is general {w) ; but he was dealing with an ex 
 parte application, and it is submitted that his decision 
 must be construed with reference to the subject-matter of 
 it. In a case of Neilson v. Thompson {x) the very point 
 occurred, and was raised in argument ; and although the 
 affidavit did not go to the belief of the patentee at the 
 time of making the application, the injunction was granted. 
 Great weight cannot, however, be attributed to this deci- 
 sion, because it does not appear that the attention of the 
 Court was expressly directed to the point at the time of 
 giving judgment. 
 
 It is submitted that the reasons for such an affidavit in 
 support of a motion ex parte, fail altogether on a motion 
 
 (g) See the Treatise, p. 224; 8 were not satisfied that Lord Cotten- 
 
 Law Journ. 184. ham expressed himself to the effect 
 
 ()•) Creasy v. Beavan, 14 Sim. 99. attributed to him in the report in the 
 
 (s) I think it right to apprise the Law Journal, 
 
 learned reader that I have been in- (t) See p. 226 of the Treatise, 
 
 formed by one of the learned reporters (w) 3 INIer. 622. 
 
 who conducted the authorized reports (y) 5 Russ. 322. 
 
 in Lord Cottenham's Court when (x) 1 Web. Pat. Cas. 276, n. (a). 
 Cults V. Curtis was decided, that they
 
 46 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 made upon notice. On an ex imrte motion the Court has 
 before it only the appHcant, and granting, if at all, only 
 on the ground of pressing danger, an order, which may be 
 highly prejudicial to the defendant, requires all the evidence 
 that can be prima facie obtained in support of the justice 
 of the claim. It would be, indeed, a strong thing to give 
 to one party an injunction against another behind his 
 back, without putting the applicant to pledge his own be- 
 lief to the truth of those facts which support his title ; 
 for the Court has on such an occasion no means of know- 
 ing whether there is not to the plaintiflp's title, the ob- 
 jection of want of novelty, except by the plaintiff's own 
 statement. But when the motion is made on notice, the 
 plaintiff and defendant are at arms-length. The plaintiff 
 produces the patent, which shows prima facie his legal 
 title. That legal title may be invalidated by some matter 
 of fact; but if it is, is it not for the defendant to show that 
 there is such a defect? The plaintiff's belief of the novelty 
 of the invention is merely evidence, and may be well or ill 
 founded ; and the validity of his title is only so far affected 
 by it as it is evidence. Suppose, for instance, that a pa- 
 tentee plaintiff swore that he believed the invention not to 
 be new, stating as the ground of his belief that A. had 
 invented the same thing before the date of the patent ; and 
 suppose that befoie the motion comes on, he discovers 
 from A., and A. files an affidavit to prove the fact that the 
 plaintiff was mistaken in the date of A.'s invention, and 
 that A. had not made it till after the grant of the patent. 
 Can there be any doubt that if the Court believed A., the 
 plaintiff's unfounded belief would be no evidence against 
 the validity of his title? No doubt if a plaintiff alleged on 
 his bill that he believed the invention not to be new, he 
 would state himself out of Court, not because his so be- 
 lieving, of itself invalidates the patent, but because the 
 Court would believe against the party, as matter of evi- 
 dence, what he himself believed. But to require a plaintiff, 
 on an application for an injunction, which admits evidence
 
 CHAP. III.] OF A SPECIAL NATURE. 47 
 
 on the part of the defendant, to swear that he beheves the 
 invention new, or in default to refuse an injunction, ap- 
 pears to the writer to be presuming the invahdity of a prima 
 facie legal title ; and in effect requiring proof of a negative, 
 by calling upon the party showing such legal title, to prove 
 that it is not bad, instead of throwing on the party con- 
 testing its validity, the onus of proof that it is bad. 
 
 5. Before concluding this subject, it will be proper to 
 refer to the practice of ordering inspection in aid of a trial 
 of the legal right. Where a court of equity, on a motion 
 for or to dissolve an injunction, has thought it necessary to 
 send the case to be tried at law, it has sometimes, under 
 circumstances, put one and sometimes each of the parties 
 upon terms to show his premises and machinery to the 
 other party or his agents. This was done in the cases of 
 Russell V. Cowley {y) and Morgan v. Seaward (s). In 
 Russell V. Cowley the order made upon the motion of the 
 plaintiff for an injunction, and affidavits read on both sides, 
 was, that the plaintiff should be at liberty to bring such 
 action as he should be advised, and an account to be kept ; 
 and that the defendant should permit and suffer the plain- 
 tiff's solicitor, and certain witnesses named in the order, to 
 inspect the premises and machinery of the defendant ; and 
 the defendant was to set his machinery to work in pre- 
 sence of such persons, and the defendant was to have a like 
 liberty; the object of the Court, expressed in the order, 
 being to afford the plaintiff and defendant respectively the 
 means of giving such evidence to the Court and jury on 
 the trial at law as should show the fact of infringement or 
 no infringement {a). It appears by Mr. Webster's report 
 that the order was by consent ; that, however, does not 
 appear upon the order itself. 
 
 In Morgan v. Seaward, which was heard on motion to 
 dissolve an injunction obtained by the plaintiff, the evi- 
 
 iy) Webs. Pat. Cas. 457. (o) Reg. Lib. 1832, fol. 2250. 
 
 (z) Ibid. 167.
 
 I 
 
 48 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 dence was very voluminous and conflicting; but the principal 
 point to be determined was, whether the machinery used 
 by defendants to give a particular movement to a paddle- 
 wheel, was substantially the same combination as the ma- 
 chinery used by plaintiff. The Court being unable, from 
 the evidence before it, to determine the point, dissolved 
 the injunction, directing that plaintiffs should be at liberty 
 to bring such action as they might be advised, and in the 
 meantime an account to be kept ; and the plaintiffs were to 
 have liberty, at reasonable times, for themselves and their 
 scientific witnesses to inspect the paddle-wheels made by the 
 defendant (b). The order in this case vias not by arrange- 
 ment. Whether any opposition was made to the inspec- 
 tion does not appear by the report. It is to be presumed 
 that none was offered. 
 
 The case cited usually as an authority for this practice 
 is Broicn v. 3Ioore, a note of which is to be found in 3 
 Bligh's Appeal Cases, 178; but it is not clear that any 
 such order was made in that case. 
 
 In 3 Swanston, p. 264, n. (a), Brown v. Moore is men- 
 tioned with a note, that " no entry of it occurs in the 
 registrar's book." 
 
 All, in fact, that can safely be collected from the case 
 of Brown v. Moore is, that an inspection had taken place ; 
 but it does not appear clear whether that inspection was 
 or was not under an order of the Court, and if it was, 
 what were the circumstances under which the order was 
 made. 
 
 The question, how far the Court will go in compelling a 
 party to submit to inspection of his premises, and on what 
 its authority to do so is grounded, was much discussed in 
 Kynaston v. The East India Company (c), and East India 
 Company v. Kynaston id). In that case the plaintiff" 
 claimed tithe of certain houses, warehouses, and wharfs, 
 
 ib) Reg, Lib. 1834, fol. 1095. (d) 3 Bligh's Appeal Cases, 163. 
 
 (c) 3 Swanst. 248.
 
 CHAP. III.] OF A SPECIAL NATURE. 49 
 
 in the occupation of the defendants, in the city of London. 
 The cause was heard at the Rolls in March, 1818, when 
 his Honor the Master of the Rolls declared that the 
 plaintiff was entitled to tithes after the rate of 2s. 9fL in 
 the pound upon the annual value of certain of the pre- 
 mises, and ordered a reference to the Master to ascertain 
 the value of such premises. Afterwards the plaintiff 
 moved before the Vice-Chancellor, that certain persons, 
 named Joseph SiU and Robert Smith, might be at liberty 
 to inspect the defendants' premises preparatory to their 
 being examined as witnesses upon interrogatories for 
 proving their value, whereupon his Honor made an order, 
 referring it to the Master to inquire whether such inspec- 
 tion was necessary, and the Master reported that such in- 
 spection was necessary. From this order the defendants 
 appealed to the Lord Chancellor, who, after hearing the 
 arguments, said, " The question is, whether the Vice- 
 Chancellor was right in taking a step which leads to giving 
 liberty, if the Master should think it necessary, to the 
 plaintiff to appoint persons to examine the warehouses. 
 On the Master's report, the propriety of the order cannot 
 be questioned. It may be light that the terms of the 
 order should be altered, directing, not that witnesses shall 
 be at liberty, but that the East India Company shall 
 give them liberty to inspect; and then comes the question, 
 whether this Court has authority to make an order on the 
 defendants to give such liberty. I have found no case in 
 point; but, on principle, I think that the Court has au- 
 thority. It has been admitted on all sides, that where 
 houses and warehouses in London have never been let, 
 tithes are to be paid according to the rent which they are 
 worth to be let at. Some of the old cases say that there 
 is no authority in the statute for charging those houses at 
 all, but it was admitted at the bar that the point is now 
 decided ; and I must take it, that if a person has property 
 of the various descriptions enumerated not let, the tithe- 
 owner, whether lay or ecclesiastical, is entitled to 2^. 9c?. 
 
 E
 
 50 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 in the pound, not on the rent, for there is none, but on the 
 value, that is, the value at which it might be let. Under 
 that act this Court has undoubted jurisdiction to entertain 
 the suit; that point, though formerly questioned, is now 
 settled by many decisions. Having jurisdiction, the Court 
 must in course direct an account of tithes, by directing an 
 account of what is the value of the premises to be let ; and 
 the question is, whether, in such a case, the Court must 
 not have the means of ascertaining by the inspection of wit- 
 nesses the nature of the premises, in order to ascertain their 
 value ; and whether the law meant to leave it thus, that the 
 defendants were to state in their answer their opinion, and 
 to send their own surveyor to give his opinion of the value ; 
 but, on the other hand, the plaintiff was to be in such cir- 
 cumstances, that he could examine no witnesses who knew 
 with precision the value of the premises. It is obvious 
 that the capacity of warehouses, of equal external dimen- 
 sions, for holding goods, might be greater or less, and that 
 the rent would be higher or lower, according to the capa- 
 city and accommodation of a warehouse. It is admitted, 
 that where a man has a right to receive a certain sum in 
 the pound on the value of trees, the Court has ordered 
 inspection of the trees; so in the case of a commission on 
 diamonds, inspection would be ordered of the diamonds. 
 I remember a case where, on a suggestion that a machine 
 used by the defendant was an infringement of a patent, the 
 Court ordered the defendant to allow an entry into his 
 premises for the purpose of ascertaining, by inspection, 
 whether the machine was an infringement (b). So, in the 
 instance of partition of a house, the tenant having a right 
 to the exclusive possession of it during a term, on a bill for 
 partition, the Court would order an entry for the purpose 
 of determining in what manner the house could be divided, 
 or what must be paid for owelty of partition. 
 
 " But it is said that in these cases the parties had an 
 interest in the property, or an interest under a contract. I 
 
 (6) The case alluded to by the Lord Chancellor is supposed to be jBroitft v. 
 Moore.
 
 CHAP. III.] OF A SPECIAL NATURE. 61 
 
 say that this parliamentary contract is on the same ground, 
 because every person claiming under it has an interest in 
 the premises ; and if, without this proceeding, the Court 
 must miscarry, and cannot attain the justice of the case 
 without inspection, my opinion is, that on principle it has 
 authority to order inspection, taking care to impose as 
 little inconvenience as possible on those on whom the order 
 is made. 
 
 " Cases relative to the production of deeds and papers 
 are not applicable, because there is a particular right to 
 call for the production of those deeds ; but on these general 
 principles the Court must make the order." 
 
 Afterwards the Vice-Chancellor confirmed the Master's 
 report, and ordered that the defendants should permit 
 Joseph Sills and Robert Sniith to inspect the several ware- 
 houses, (See, preparatory to their being examined as wit- 
 nesses upon interrogatories. From this order also the de- 
 fendants appealed to the Lord Chancellor, who, on the 4th 
 May following, ordered that both the orders made by the 
 Vice-Chancellor should be affirmed. 
 
 On appeal to the House of Lords the three orders were 
 confirmed. Lord Redesdale, in delivering his opinion, 
 made a distinction between an order directing a forcible 
 entry to inspect, and an order on the defendant directing 
 him to permit inspection, and seemed to doubt whether the 
 Court would make an order for forcible entry. He said, 
 " Courts of equity proceed always indirectly, by process 
 of contempt, in all cases except where the decision is upon 
 a title to land, in which excepted case they decree posses- 
 sion, and direct the sheriff to execute the decree." And 
 further, " in case of chattels, they frequently order spe- 
 cific delivery of the article demanded, but enforce their 
 decrees and orders only by process of contempt. In such 
 cases courts of equity enforce obedience by process of con- 
 tempt, and never, but in the excepted case of a decree for 
 land in a judgment upon title, direct the sheriff to take and 
 give possession by force." 
 
 e2
 
 52 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 The Lord Chancellor, however, intimated, that the Court 
 might not be bound within those limits. He said, " If the 
 defendants refuse to permit inspection, the Court will then 
 have to consider what ought to be done, whether they 
 will compel the inspection, and how. No such order has 
 yet been made, but the Court can find the way to do 
 complete justice." 
 
 In cases of injunctions to restrain the working of mines, 
 the practice of the Courts of Equity of ordering inspection 
 is well settled (c). 
 
 The cases seem, on the whole, to justify the following 
 conclusion : that in questions as to the infringement of 
 patents, a Court of Equity will make an order in sub- 
 stance compelling the defendant to submit to inspection 
 of his premises and machinery, where the evidence before 
 the Court is sufficient to raise a strong presumption of the 
 fact of infringement, and where it appears to the Court 
 that without such inspection satisfactory evidence cannot 
 be obtained ; provided, in the words of Lord Eldon, the 
 Court must miscarry, and the justice of the case cannot be 
 obtained without it. And therefore, if a case were to arise, 
 in which the preponderance of evidence in favor of the 
 presumption of infringement were to be slight, and it could 
 be shown that ineparable or great injury might be done 
 to the defendant by the inspection, if the fact should turn 
 out that there was no infringement, it may be well doubted, 
 upon the authority of the cases cited, whether the Court 
 would made the order {d). 
 
 (c) Lord Lonsdale v. Curwen, and but in that case the liberty to inspect 
 
 Walker v. Fletcher, 3 Bligh's App. was reciprocal. 
 
 Cas. note, 168 to 178. In the former {d) It is perfectly obvious, tiiat if 
 
 of these cases the order was, that the the defendant's case were that he was 
 
 plaintiff should 6e atiifterty to inspect using an invention of his own, irre- 
 
 defendant's workings, and not merely parable injury to him might be caused 
 
 that the defendant should -permit in- by an inspection, if it should turn out 
 
 spection ; and in Walker v. Fletcher that there was no infringement, 
 the terms of the order were similar.
 
 CHAP. IV.] OF A SPECIAL NATURE. 53 
 
 CHAPTER IV. 
 
 Injunctions to restrain the Use of another's Name or 
 Designation, and the Imitation of Trade Marks. 
 
 1 HE principle upon which injunctions are granted to 
 restrain the imitation of trade marks (a), long exclusively 
 used by a particular trader, so as to connect his name or 
 trading concern with the reputation acquired in the market 
 by the goods bearing the particular mark, is thus expressed 
 by Lord Langdale in Perry v. Truefitt {h), " I think that 
 the principle on which both the courts of law and equity 
 proceed in granting relief and protection in cases of this 
 sort is very well understood. A man is not to sell his 
 own goods under the pretence that they are the goods of 
 another man; he cannot be permitted to practise such a 
 deception, nor to use the means which contribute to that 
 end. He cannot, therefore, be allowed to use names, 
 marks, letters, or other indicia by which he may induce 
 purchasers to believe that the goods which he is selling 
 are the manufacture of another person. I own it does not 
 seem to me that a man can acquire a property merely in a 
 name or mark ; but, whether he has or not a property in 
 the name or the mark, I have no doubt that another has 
 not a right to use that name or mark for the purpose of 
 deception, and in order to attract to himself that course 
 of trade or that custom which, without that improper act, 
 would have flowed to the person who first used, or was 
 alone in the habit of using, the particular name or mark." 
 And in a subsequent case(c) the same learned judge again 
 expressed himself to the same effect : " No man has a 
 right," said his Lordship, " to sell his own goods as the 
 
 («) See Treatise, p. 230. (c) Croft v. Day, 7 Beav. 84; see 
 
 (ft) 6 Beav. QQ. also Gout v. Aleploglu, 6 Beav. 69, n.
 
 54 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 goods of another. You may express the same principle 
 in a different form, and say, that no man has a right to 
 dress himself in colours, or adopt and bear symbols to 
 which he has no peculiar or exclusive right, and thereby 
 personate another person, for the purpose of inducing the 
 public to suppose either that he is that other person, or 
 that he is connected with and selling the manufacture of 
 such other person, while he is really selling his own. It 
 is perfectly manifest that to do these things is to commit 
 a fraud, and a very gross fraud. I stated, upon a former 
 occasion, that, in my opinion, the right which any person 
 may have to the protection of this Court does not depend 
 upon any exclusive right which he may be supposed to 
 have to a particular name or to a particular form of words. 
 His right is to be protected against fraud, and fraud may 
 be practised against him by means of a name, though the 
 person practising it may have a perfect right to use that 
 name, provided he does not accompany the use of it with 
 such other circumstances as to effect a fraud upon others." 
 Accordingly, in Crq/i( v.i)af?/, his Lordship being of opinion 
 that, although the labels used by the defendant upon the 
 bottles of blacking sold by him, were in many points dif- 
 ferent from the plaintiff's labels, yet there was sufficient 
 to mislead the ordinary run of persons, and that the object 
 of the defendant was to persuade the public that his esta- 
 blishment was in some way or other connected with the 
 plaintiff's, granted an injunction restraining the defendant 
 from imitating the plaintiff's labels. The order made was 
 very specially worded, with a view to prevent the defendant 
 from eluding the jurisdiction by colourable alteration. 
 
 In Perry v. Truejitt (d), the point on which the case 
 was principally argued was, whether a certain unguent 
 sold by the plaintiff having acquired a reputation under 
 the name of " Perry's Medicated Mexican Balm," the 
 defendant was at liberty to sell an unguent for the same 
 purpose under the designation of " Truefitt's Medicated 
 
 (d) 6 Beav. 66.
 
 CHAP. IV.] OF A SPECIAL NATURE. 55 
 
 Mexican Balm." The evidence showed that Trnefitt (the 
 defendant) did not attempt to induce the behef that what 
 he was selling was the plaintiff's unguent, but he simply 
 took the sort of fancy designation adopted by the plaintiff", 
 of Medicated 3Iexican Halm. And the question was, 
 whether, in the absence of fraud, the plaintiflf had such a 
 right in that designation as to prevent the defendant's use 
 of it. This the Court held to be a legal question ; and if 
 that had been the only point, the Court would, it seems, 
 have put the matter in a course for trial of the legal right. 
 But the plaintiff' had also, in advertisements respecting 
 his medicated Mexican balm, put forth false representations 
 to the public, and thereby precluded himself (e) from ob- 
 taining relief in equity in the first instance. Tiie motion 
 was ordered to stand over, with liberty to the plaintiff" to 
 bring an action ; and some months afterwards the bill was 
 dismissed with the consent of the plaintiff". 
 
 It will be observed, that both in Perry v. Truefitt and 
 Croft V. Day, Lord Langdale took occasion pointedly to 
 advert to the doctrine oi Millington v. Fox (/), and to ex- 
 press his opinion, that an exclusive right of property 
 cannot be acquired in a name or mark. " The case of 
 Millington v. Fox," said his Lordship, in Truefitt v. 
 Perry ig), " seems to have gone this length, that the de- 
 ception need not be intentional ; and that a man, though 
 not intending any injury to another, shall not be allowed 
 to adopt the mark by which the goods of another are 
 designated, if the eff"ect of adopting them would be to 
 prejudice the trade of such other person. I am not aware 
 that any previous case carried the jyrinciple to that extent." 
 The writer believes that there is not any case since Perry 
 V. Truefitt and Day v. Croft carrying the principle so far 
 as it was carried in Millington v. Fox. It will not, how- 
 ever, be forgotten, that that case was most fully argued, 
 and that the judgment is one of the most careful of the 
 
 (e) Pidding v. Howe, 8 Sim. 477. (g) 7 Beav. 73. 
 
 (/) 3 Wy. & C. 338.
 
 56 INJUNCTIONS TO STAY WRONGFUL ACTS [PART I. 
 
 many elaborate judgments delivered by the eminently cau- 
 tious judge who pronounced it. 
 
 Cases of this sort will necessarily depend very much upon 
 the particular circumstances. The principle on which they 
 proceed, subject always to the doctrine of" Millington v. 
 Fox, is fraud; and, as observed by the Master of the Rolls 
 in Franks v. Weaver {h), '' nobody has been able to define 
 what fraud is, it is so multiform." It must not be con- 
 cluded, however, that in case of trade marks or designa- 
 tions a specific use of the plaintiff's name or mark modo 
 et forma is requisite to entitle him to an injunction. The 
 Court in these cases looks not to the letter but to the 
 substance, and if upon the evidence it can come judicially 
 to the conclusion that the defendant has contrived to make 
 it appear to the public that the thing sold by him is pre- 
 pared by the plaintiff, he will be restrained. Thus in 
 Franks v. Weaver, where the plaintiff was the proprietor 
 of a medicine sold in wrappers, headed " Franks' Solution 
 of Copaiba," and such wrappers contained testimonials, 
 the defendant was restrained from selling a medicine in 
 wrappers headed " Chemical Solution of Copaiba," setting 
 forth the excellent properties of Franks' solution, and the 
 testimonials to the merits of Franks' solution. The Court 
 came to the conclusion, that though the defendant did not 
 adopt the name of Franks, yet he craftily surrounded the 
 title given to his own solution by such indicia as would 
 lead the public to suppose he was in truth selling Franks' 
 solution, and therefore an injunction was granted. 
 
 In a case of Hine v. Lart (i), the plaintiff sought to 
 bring himself within Millington v. Fox by an allegation 
 supported by some evidence of long exclusive user of a trade 
 mark. The defendants denied the plaintiff's right, but 
 admitted they had closely copied his marks. The evidence 
 was conflicting as to the right. The Vice-Chancellor of 
 England held that the defendants, by imitating the plain- 
 
 (7i) 10 Beav. 297. (i) 10 Jurist, 106.
 
 CHAP. IV.] OF A SPECIAL NATURE. 67 
 
 tiff's marks as tliey had done, must have known they 
 might gain an advantage to which they were not entitled, 
 and supported an injunction. The case seems open to con- 
 siderable doubt. If it be considered as a case of property, 
 within the doctrine of Millington v. Fox, it seems incon- 
 sistent with the well settled doctrine, that an injunction 
 will not be granted on a doubtful legal right; and as a 
 case of fraudulent imitation, it seems to fail in that which 
 is the essence of such cases, evidence that the defendant 
 held his goods out so that the public bought them as 
 the goods of the plaintiff. Nothing of the kind appears, 
 according to the report, either on the bill or in the evidence. 
 It must be observed, also, on this doctrine of protecting 
 trade marks, that if the differences between the designa- 
 tion adopted by the plaintiff and that resorted to by the 
 defendant, are sufficient to rebut the presumption of decep- 
 tion, an injunction will not be granted {k). 
 
 (k) London and Provincial Law vincial Joint Stock Life Assurance 
 Assurance Society v. London and Pro- Society, 11 Jurist, 938.
 
 58 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 CHAPTER V. 
 
 Injunctions to restrain Nuisance. 
 
 — ♦ — 
 
 1. Nuisances generally. ( 2. Contingent Nuisance. 
 
 1. In Hilton v. Lord Granville {a) the Court expressed 
 itself thus: "The rights asserted on the part of the 
 plaintiff and of the defendant are legal rights ; and the 
 plaintiff asking for the assistance of a Court of Equity to 
 protect him from a violation of his alleged legal right, 
 ouo-ht to show that the rio;ht has been established, or that, 
 having had no means of establishing it, but the right being 
 prima facie well founded, the interference of this Court is 
 necessary to prevent that species and extent of mischief 
 which this Court calls irremediable, before the right can 
 be established by legal proceedings." 
 
 In this case the plaintiff was a copyholder of the manor 
 of Newcastle-under-Lyne, holding as such some copyhold 
 houses. The defendant was the lessee of the crown of 
 mines of coal and ironstone in the manor ; and as such 
 had worked for a long time and was working the mines, so 
 as to have produced actual damage to many other houses 
 similarly situated with the plaintiff's, and so as to produce 
 extreme probability of damage to the plaintiff; but there 
 was no proof that destruction or irremediable damage was 
 likely to be produced. The defendant's legal right to 
 work was clear, subject to the plaintiff's legal right to be 
 compensated for damage done, if he had such right. The 
 plaintiff had such prima facie right, but it had not been 
 established at law. In this state of things the Master of 
 
 (a) 4 Beav. 130.
 
 CHAP, v.] OF A «;PECIAL NATURE. 59 
 
 the Rolls refused to interfere, upon the principles above 
 stated. 
 
 On appeal, the Lord Chancellor agreed that an injunc- 
 tion could not be granted, but varied the order by directing 
 the motion to stand over, and giving liberty to the plaintiff 
 to bring an action, putting the defendant to make cer- 
 tain admissions necessary for the proper trial of the legal 
 right (i). 
 
 2(c). In Haines v. Taylor {d), where the defendant was 
 proceeding to erect gas works on a piece of ground within 
 88 yards of the plaintiff's house, and, in addition to the 
 circumstance, that as no gas was yet being made, the in- 
 jury was prospective and contingent, the evidence was 
 conflicting whether, by the result of scientific improve- 
 ments proceeding in the manufacture of gas, all offensive 
 effect of the manufacture, when actually commenced, 
 would not be removed, the Court refused a motion to 
 restrain the defendants from proceeding with their build- 
 ing, and from making gas. 
 
 (6) 1 Cr. & Phil. 283. {d) 10 Beav. 75 ; and on appeal, 
 
 (c) See Treatise, p. 248. 2 Phil. 209, and 1 1 Jurist, 73.
 
 60 
 
 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 CHAPTER VI. 
 
 Injunctions in Aid of specific Performance, and to restrain 
 Breach of Trust or Confidence. 
 
 1. Injunctions in Aid of Specific Per- 
 
 formance of Agreement to pur- 
 chase Land. 
 
 2. Injunction to restrain Breach of 
 
 Covenants on Leases. 
 
 3. Of the Jurisdiction to interfere by 
 
 Injunction when the Agreement 
 cannot be perj'ormed as a Whole. 
 
 4. Of Mandatory Injunction. 
 
 5. Injunctions lo restrain Breach of 
 
 Trust. 
 
 6. hijunctions to restrain presenting 
 
 to a Benefice. 
 
 1. In a case of Turner v. Wright {a), where the bill was 
 filed by a purchaser against a vendor for specific per- 
 formance, the doctrine of Spiller v. Spiller(b) was acted 
 upon, although that case was not cited. The validity of 
 the contract being questioned, the Master of the Rolls 
 said he would not then decide on its validity ; and as to 
 the injunction to restrain the defendant from selling or 
 letting, a purchaser pendente lite would take subject to 
 the rights of the plaintiff. 
 
 2(c). Although a covenant may not be held to run with 
 the land, so that the assignee of the covenant would not 
 at law be affected, yet if he had at the time of his pur- 
 chase notice of the covenant, he would be in equity affected 
 so as to be restrainable from committing a breach of it. 
 This was decided in Mann v. Stephens {d), where A. being 
 
 (a) 4 Beav. 40. 
 
 (fc) 3 Swan. 556; see Treatise, 
 252. 
 
 (c) See Treatise, p. 255. 
 
 (d) 15 Sim. 377 ; affirmed by the 
 Lord Chancellor, 13th Nov. 1847, 
 ibid.; and see 13 Jurist, 89, note*. 
 See d\i,oTulk v. Moihay, 13 Jurist, 89.
 
 CHAP VI.] OF A SPECIAL NATURE. CI 
 
 seised of a house and land, sold tlie house to B., with a 
 covenant that no building should be erected on the land ; 
 afterwards he sold the land to C, and took a counter 
 covenant from him. After mesne conveyances the house 
 became vested in D. and the land in E., but E. had notice 
 of both covenants ; it was held that, on that ground, E. 
 was properly restrained from building in breach of the 
 original contract. 
 
 In cases of excessively oppressive covenants equity will 
 not interfere, but will leave the covenantee to his remedy 
 at law. Thus where, in a lease of mines, a covenant was 
 introduced, that if the lessor should at any time before the 
 expiration or sooner determination of the lease give to the 
 lessee notice of his desire to take all or any part of the 
 machinery, stock in trade, implements, &:c. in or about 
 the mines, the lessee should deliver them up, the lessor 
 paying the value of them, to be settled by arbitration : the 
 Court said this was a covenant consistently with which it 
 did not see how the lessee could work the mines to advan- 
 tage, and so injurious and oppressive to the lessee, that on 
 a bill for specific performance by the lessor, praying an 
 injunction to restrain the lessee from selling or removing 
 the articles mentioned in the notice that the lessor had 
 given, pursuant to the covenant, the Court refused the 
 injunction (e). 
 
 3. It is to be observed on the cases of Kimherley v. Jen- 
 nings, Kemhle v. Kean, and Baldwin v. The Society for 
 the Dijfusion of Useful Knowledge{f), that in those cases 
 the bill was for specific performance as well as for an 
 injunction; and in a later case (Rolfe v. Rolfe(y)), the 
 Court took that distinction, and held that where there is 
 a positive agreement incapable of being specifically per- 
 formed, and a negative agreement, the bill praying only 
 an injunction, the Court will grant it. 
 
 (e) Talbot V. Ford, 13 Sim. 173. {g) 15 Sim. 88. 
 
 (/) See Treatise, p. 256 et seq.
 
 62 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 Two other cases remain to be noticed on this subject, 
 Hills v. CroU[h), before Lord Lyndhurst, C, and Dietri- 
 chsen v. Cahburnii), before Lord Cottenham, C. In Hills 
 V. Croll the plaintiff agreed to supply the defendant with 
 certain acids, and the defendant agreed to purchase the 
 acids from the plaintiff, and from no one else. After this 
 agreement had been acted upon for some time, the defend- 
 ant departed from it, and purchased acids from other persons 
 than the plaintiff. The plaintiff then filed a bill praying a 
 specific performance of the agreement, and an injunction to 
 restrain the defendant from purchasing acids otherwise than 
 from the plaintiff. On a motion for an injunction, which 
 was refused, the Lord Chancellor expressed himself thus : — 
 " There is a stipulation on the part of Hills that he will 
 supply the acids, and there is a stipulation on the part of 
 Croll that he will purchase acids from Hills, and from no 
 other person. Has the Court any power to compel Hills 
 to fulfil his part of the agreement ? Can the Court order 
 him to continue the manufacture of acids, or to purchase 
 them elsewhere, for the purpose of supplying the defend- 
 ant ? It is clear, I apprehend, that the Court has no such 
 power. In the case of Colman v. Morris {jk), Mr. Colman 
 was restrained from writing for any other theatre, the Court 
 inferring that that would compel him, or have a tendency 
 to compel him, to write for the Haymarket theatre; but in 
 this case the Court has no power to compel the plaintiff to 
 supply the defendant with acids, by ordering him not to 
 supply any other person : that is not the agreement, nor 
 was it ever intended that it should be the agreement ; 
 therefore it is clear that the Court cannot, either directly 
 or indirectly, compel him to perform his part of the agree- 
 ment. And it has been laid down again and again, and 
 very recently in a case before Sir Edward Sugden in Ire- 
 land (Z), that unless the Court can decree specific perform- 
 ance of the whole of a contract, it will not interfere to 
 
 (ft) 2 Phil. 60; 9 Jurist, 645. (fc) 18 Ves. 437. 
 
 (i) 2 Phil. 52; 10 Jurist, 601. {I) Gervais v. Edwards,2DT\i. & War. 80.
 
 CHAP, VI,] OF A SPECIAL NATURE. 63 
 
 enforce any part of it. When, therefore, this cause comes 
 to a hearing-, the Court will not have jurisdiction to restrain 
 the defendant from purchasing acids elsewhere, because it 
 will not be able to compel the plaintiff to furnish all the 
 acids that may be necessary for the manufacture carried 
 on by the defendant. If it cannot do this at the hearing, 
 it follows of course that it will not do it in the meantime 
 upon an interlocutory application. The decision of the 
 Vice-Chancellor must therefore be affirmed." 
 
 In Dietrichsen v. Cabburn the defendant agreed to 
 employ the plaintiff as his wholesale agent for the sale of 
 certain oils, and to supply him for that purpose with oil at 
 a discount of 40 per cent, on the current retail prices, and 
 not to sell the oil to any other person for resale at a higher 
 rate of discount than 25 per cent. And the plaintiff agreed 
 to act as the wholesale agent of the defendant, and to pay 
 him for the oils. The plaintiff performed bis part of the 
 agreement; but the defendant did not perform his part, 
 supplying other persons than the plaintiff with oils at a 
 higher rate of discount than 25 per cent. A bill was filed 
 not praying in terms specific performance, but praying that 
 which was equivalent, an account and payment of the pro- 
 fits made by the defendant by sales made in violation of the 
 contract, and an injunction. To this bill a demurrer was 
 put in and over-ruled. Lord Cottenham, in dealing with 
 this case, did not at all repudiate the doctrine, that if an 
 agreement cannot be performed in the whole, it will not be 
 performed in part. But his Lordship put the case upon 
 quite another ground, viz. that the jurisdiction of the Court 
 to restrain by injunction an act which a defendant is by 
 contract in duty bound to abstain from, is not confined to 
 cases where the Court has jurisdiction over the acts of the 
 plaintiff. " If," said his Lordship, " the bill states a right 
 and title in the plaintiff to the benefit of the negative 
 agreement of the defendant, or of his abstaining; from the 
 contemplated act, it is not, as I conceive, material whe- 
 ther the right be at law or under an agreement which
 
 64" INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 cannot be otherwise brought under the jurisdiction of a 
 Court of Equity." 
 
 Such is the state of the authorities on this question, and 
 the learned reader will of course draw from them his own 
 conclusions. I submit, however, that the balance of au- 
 thority and the weight of reasoning on principle, are in 
 favor of the doctrine, that where there is the sort of 
 double agreement that is found in the cases cited, what 
 equity will look at is, whether the negative agreement is 
 binding upon the defendant. If it is, the claim of the 
 plaintiff to be protected against the breach of it will be 
 enforced by injunction; and that, whether the bill is or is 
 not as well for specific performance of the positive agree- 
 ment, as for an injunction to restrain the breach of the 
 negative agreement. 
 
 4. On the doctrine of mandatory injunctions {k) several 
 cases have lately been decided. 
 
 In The Great North of England, Clarence, and Hartle- 
 pool Junction Railway Company v. The Clarence Railway 
 Company, (l) the principal question between the parties 
 was upon the construction of the act of parliament under 
 which the plaintiffs claimed to act, — whether, assuming 
 that the plaintiffs had a right to make a bridge, pursuant 
 to a certain plan, over the defendants' railway, no part of 
 the permanent supports of such bridge being intended to 
 rest upon the defendants' land, the plaintiffs had a right, 
 by way of temporary easement, to erect poles and other 
 temporary constructions upon land adjacent to the defend- 
 ants' railway, and to pass and repass across such railway, 
 doing no vexatious acts, compensating for all damage, and 
 not interfering with the regular traffic of the defendants' 
 railway. The defendants, in order to prevent the plaintiffs 
 from so temporarily using their land, had built up a wall 
 which effectually prevented the plaintiffs from carrying on 
 
 (fc) See Treatise, p. 260 et seq. (/) I Coll. 507.
 
 CHAP. VI.] OF A SPECIAL NATURE. 65 
 
 their works; and the bill prayed an injunction to restrain 
 the defendants from continuing to maintain such wall, and 
 from preventing the defendants from making their bridge, 
 &c. In effect therefore the bill sought for an order to 
 compel the defendants to remove their wall. The Court 
 refused to grant the injunction until satisfied, by the 
 opinion of a Court of law, that the plaintiffs had a legal 
 right to build the bridge, and also a legal right to use the 
 defendants' lands by way of temporary easement. But 
 the Court of Exchequer having certified that the plaintiffs 
 had both such legal rights, the Lord Chancellor, support- 
 ing the view of Knight Bruce, V. C, that it was no objec- 
 tion to the injunction that it was in effect of a mandatory 
 character, made the order nearly in the terms of the prayer 
 of the bill. To the same effect is Lord 3Ie.ihorough v. 
 Bower (m), in which an injunction was granted to restrain 
 the defendant (who had cut certain channels from one coal 
 field into another, in derogation of an agreement with the 
 plaintiff) from permitting the communication to continue 
 open. 
 
 And here may also be mentioned two cases of Whittaker 
 Y. Howein), and Taylor v. Davis{o). In the former, a mo- 
 tion was made to restrain the defendant, a solicitor, who 
 had sold his business to the plaintiff, and notwithstanding 
 kept possession of books belonging to such business, from 
 detaining and keeping possession of the books, &:c. from 
 the chambers of the plaintiff, and from permitting the 
 same to remain aioay from the office of the j)laint>ff." 
 Lord Langdale at first made no order upon the motion as 
 to the retention of papers, not it would seem from any 
 doubt of the jurisdiction, but because the defendant's 
 counsel made an offer which, if acted upon, would have 
 rendered the injunction unnecessary; but he afterwards 
 made the order, (p) 
 
 Taylor v. Davis was a case in which one partner hav- 
 
 (m) 7 Beav. 127. (o) 3 Beav. 338, n. (e). 
 
 {n) 3 Beav. 383. (p) See 3 Beav, 395, note. 
 
 F
 
 66 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 ing, contrary to a covenant in the partnership deed, ab- 
 stracted a partnership book from the counting-house of 
 the firm, an injunction was granted, and continued at the 
 hearing of the cause, restraining him from continuing to 
 violate the covenant. 
 
 5. (q) As it is a breach of trust in a trustee to exercise 
 any of the legal powers which he may have as such 
 trustee, except for the legitimate purposes of the trust, a 
 trustee attempting so to dp may be restrained. Thus, 
 where the indorsee of a bill, indorsed to him without con- 
 sideration, for the purpose of recovering upon it against 
 the acceptor, for the benefit of the drawer, attempted to 
 bring an action upon it against the drawer, a demurrer to 
 a bill fur an injunction against his proceeding in the action 
 was overruled (r). 
 
 Nor will a person filling a fiduciary character, such as 
 that of secretary to a loan society, where his duty is to 
 hand over the funds collected by him to the treasurer, be 
 allowed to retain them in satisfaction of a claim for arrears 
 of salary. If he attempts to do so, an injunction will be 
 granted to restrain him from receiving the funds, leaving 
 him to his separate remedy for his salary (s). 
 
 A covenant by an articled clerk to a solicitor, that he 
 will not, during nor after the expiration of the term of his 
 articles, be professionally concerned for any persons who 
 had been, or should from time to time thereafter become, 
 the master's clients, has been held recently not to be so 
 far in restraint of trade as to prevent the Court from 
 granting an injunction to restrain the clerk, after the expi- 
 ration of his articles, from acting for persons who had been 
 clients of the master during the articles ; and that al- 
 though, by the terms of the agreement, the master might 
 put an end to the period of the articles at any time upon 
 one week's notice (t). An appeal was presented in this 
 
 (g) See p. 266 et seq. of Treat. (s) Shaw v. Hill, 9 Jurist, 821. 
 
 (r) Balls V. Strutt, 1 Hare, 146. (t) Nicholts v. Stretton,! Be&\. 42.
 
 CHAP. VI.] OF A SPECFAL NATURE. 67 
 
 case, and a case at law directed. An action on the cove- 
 nant was brought, the result of which was to support the 
 decision of the Master of the RoIIs(m). It may be thought 
 that this case goes much further than any of the preceding 
 cases upon agreements in restraint of trade, as by the terms 
 of the covenant the defendant was restricted from being 
 employed by any persons whatsoever who might at any 
 time during the whole life of the covenantee become his 
 clients, — whether the covenantor acquired his knowledge 
 of them through his connexion with the covenantee or not. 
 In Whittaher V. Iiowe{x), where an injunction was also 
 sustained for enforcing the performance of a covenant by 
 Howe not to practise as a solicitor in Great Britain, although 
 the circle within which the restriction was to operate was 
 very large, the period was limited to twenty years. In that 
 case, the defendants had sold their business of solicitors to 
 the plaintiff, with a stipulation, that after a certain period 
 neither of the defendants " should practise as solicitors 
 or attornies in any part of Great Britain for the space of 
 twenty years, without the consent of Whittaker" (the 
 plaintiff). Howe, one of the defendants, committed a 
 breach of this agreement, by taking chambers near the 
 original place of business that he had occupied, and 
 making demonstrations of commencing practice ; and 
 Lord Langdale held the restraint, upon the authorities, not 
 unreasonable, and granted an injunction restraining the 
 defendant from practising in any part of Great Britain. 
 
 6. Upon the exercise of the jurisdiction to restrain pre- 
 senting to a benefice {y), there is another case of Wyvill 
 V. Bishop of Exeter {z), where the plaintiff claimed, as a 
 residuary devisee under the will of the owner of an ad- 
 vowson, the right to present on a vacancy that had occur- 
 red, but her trustee refused to present; and one of the 
 defendants claimed the presentation under an alleged con- 
 
 (m) Nicholls V. Stretton, 11 Jurist, 1008. (y) See p. 277 of the Treat. 
 (x) 3 Beav. 383. (y) 1 Price, 292. 
 
 f2
 
 68 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 tract for purchase of the advowson from the testator; and 
 the purchaser insisting on his purchase, and accounting 
 for his delay by reason of unremoved objections to the 
 title; and the bishop threatening to take advantage of the 
 lapse, the Court, thinking the defendant had lost the benefit 
 of the presentation by reason of his delay, directed the 
 plaintiff's trustee to present within a given time, and 
 restrained the bishop in the meantime. 
 
 CHAP. VII. 
 
 Injunctions between Partners. 
 
 The doctrine of Marshall v. Colman (a) has lately been 
 laid down as settled in a case of Smith v. Jeyes (h). 
 
 (a) 7 Ja. & W. 260 ; and see Treat. 281. (b) 4 Beav. 503.
 
 CHAP. VIII.] OF A SPECIAL NATURE. 69 
 
 CHAPTER VIII. 
 
 Injunctions relating to Canal, Railway, and other Public 
 Companies. 
 
 1. Exception to the General Rule, that 
 
 a Company exceeding its Powers 
 will be restrained, 
 
 2. Of the Effect of Laches. 
 
 3. General Principle on which the Court 
 
 acts on interfering. 
 
 4. Of Agreements between Parties as to 
 
 their Conduct in Proceeding before 
 Parliament. 
 
 5. Injunctions to restrain Companies 
 
 from proceeding to alter their Con- 
 stitution. 
 
 6. Case of Goodman v. De Beanvoir. 
 
 1. It has been stated in the Treatise (a), that generally a 
 company exceeding the powers given to it by the legisla- 
 ture will be restrained ; and this general principle remains 
 undisturbed by more recent cases. But where a company 
 entered upon a man's land, and dug a trench thereon, not 
 strictly pursuing its powers, but it appeared such trench 
 was merely to mark out an anticipated line of railway, and 
 none of the soil was removed from the land, and the com- 
 pany never did anything more, and swore that they did not 
 intend to go any more on the land, the Court refused to 
 make any order, even as to costs, saying that the mischief, 
 if any, having been done, there could be no use in an 
 injunction. It must be observed that, in this case, the 
 plaintiff did not file his bill till nine days after the injury 
 had been discovered by him, and fourteen after it had 
 ceased. The case is obviously sui generis, and neither 
 establishes nor controverts any general principle (6). 
 
 (a) P. 285 et seq. 
 
 (6) Foohs V. The Wiltshire Railway Company, 5 Hare, 199.
 
 70 INJUNCTIONS TO STAY WRONGFUL ACTS [PART IT. 
 
 2. On the effect of laches on the rights of parties to 
 obtain or dissolve* injunctions, the following cases, con- 
 firmatory and explanatory of the doctrine of those re- 
 ferred to in the Treatise (c), have been since decided : 
 Illingworth v. Manchester and Leeds Railway Company (d), 
 and Bickford v. Skewes (e). 
 
 To these may be added the more recent case of Bridson 
 V. Benecke{f), upon a patent right, in which an injunction 
 was refused on that ground, although the case was such 
 that the Court intimated that, consistently with the prin- 
 ciples laid down by Lord Eldon {g), it would, if there had 
 not been delay, have been disposed to grant an injunction, 
 pending the trial of the legal right. The plaintiff had been 
 in possession for eleven years, and had succeeded in an 
 action against another person, in which the title had been 
 impeached. He was aware of the alleged infringement in 
 January, 1848, and had an inspection of the defendant's 
 machinery. In April he gave notice to the defendant that 
 he should proceed against him, and had even a bill prepared 
 in May. From that time to December he took no steps, 
 not, however, doing any act to waive his claim ; and in De- 
 cember he filed his bill, and moved on the 1 1th of January. 
 The Court said the plaintiff might, by using proper dili- 
 gence, have so acted that an injunction should not, or 
 should not materially have injured the defendant; he had 
 not so acted ; and by reason of his delay the injunction was 
 refused, with liberty, however, to renew the motion, if the 
 defendant in any way impeded the speedy trial of the right. 
 
 3. The principles laid down in Attorney- General v. 
 Corporation of Liverpool {h) are exemplified in a very 
 marked manner in a case of The Clarence Railway Corn- 
 
 ice) P. 294. (g) See the cases cited in the Trea- 
 
 (d) 2 Rail. Cas. 187. tise, p. 222, n. (m). 
 
 (e) Webs. Pat. Cas. 211. (/») I Myl. & Cr. 171 ; and see the 
 (/) Rolls, 9th Feb. 1849, MS. Treatise, pp. 297, 298.
 
 CHAP. VIIl.] OF A SPECIAL NATURE. 71 
 
 pany y. The Great North of England, &)C. Company (i), 
 in which the Court, holding the legal title doubtful, and 
 therefore fit to be tried at law, sustained an injunction in 
 part, and dissolved it to the extent of enabling the defend- 
 ants to complete a contract, which, if not completed forth- 
 with, they might be wholly unable to complete after the 
 determination of the legal right (h). 
 
 4. The question whether an agreement between parties 
 with respect to their conduct as to proceedings on bills 
 before parliament, or under acts of parliament, will be 
 enforced by injunction, was partly raised in Lord Petre v. 
 The Eastern Counties Hallway Company {I). It has re- 
 ceived a final determination in The Stockton and Hartle- 
 pool Railway Company v. Leeds and Thirsk Railway 
 Company (m). In that case the defendants had agreed 
 not to oppose a certain bill before parliament, and after- 
 wards attempted to oppose it. The question was whether 
 they should be restrained; and the Vice-Chancellor of 
 England, and on appeal the Lord Chancellor, held that 
 there was no doubt on the subject as to jurisdiction, and 
 supported an injunction. 
 
 5. In reference to the question considered in Ware v. 
 Grand Junction Waterworks (n), must be mentioned the 
 case of Wardv. The Society of Attornies{o), in which the 
 Society of Attornies, incorporated by charter, was restrained 
 from conveying the property of the society to new trustees, 
 and from surrenderino^ the charter into the hands of the 
 crown, for the purpose of obtaining a new charter for 
 objects differing from those of the original charter; some 
 of the members not consenting to the proposed surrender 
 
 (t) 2 Rail. Cas. 763. (m) 2 rhil. m6, aud 12 Jur. 713, 
 
 (k) See also Cory v. Yarmouth and 786. 
 
 Norwich Railway Company, 3 Hare, («) 2 Russ. &: Myl. 470; and see 
 
 593. p. 304 of the Treatise. 
 
 (0 1 Rail. Cas. 462. (o) 1 Coll. 370.
 
 72 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 and change, and there being no specific power contained 
 in the original charter, enabhng a majority to change the 
 interests of the minority (/>). 
 
 6. Before conchiding this chapter, it may be well to 
 mention a case of considerable importance, apparently 
 extending the jurisdiction of the Court, though in reality 
 only applying one of its well known principles. In Good- 
 man V. De Beanvoir {q) one question was, whether, if a 
 clause in an act of parliament directs tliat on persons, 
 named in a warrant of the Speaker of the House of Com- 
 mons, petitioning the Court for payment out of Court of 
 the monies named in such warrant, the Court shall direct 
 the money to be paid, using only imperative words, with 
 nothing on the face of the act to qualify them, such clause 
 is altogether binding on the Court; and Sir L. Shadwell, 
 V. C. E., held that it is not. His Honor held that though 
 the words were imperative, and there was no qualification 
 on the face of the section, though the word stood absolutely 
 " shall," nevertheless, by the inherent authority in the 
 Court to repress fraud, and to prevent false dealing, and 
 to exercise a wholesome control over persons standing in 
 the character of trustees, the section was not imperative 
 on the Court in this sense, or to this extent, that the Court 
 shall not look to the circumstances and see whether it 
 ouo^ht or ouo;ht not to do that which the legislature has 
 prima facie commanded to be done ; and his Honor was 
 clearly of opinion that the Court had such authority, and 
 decided accordingly, by refusing, as to payment of the 
 money, to allow an order made for paying it out, to be 
 acted upon. 
 
 The same jurisdiction was exercised in Castendieck v. 
 De Buryh (r). The language of the Vice-Chancellor in 
 Goodman v. De Beauvoir may at first sight give an ini- 
 
 (p) See also Parker v. Dunn Na- (q) 4 Rail. Cas. 380. 
 
 vigation Company, 1 Deg. & Sm. 192. (r) 4 Rail. Cas. 386.
 
 CHAP. VIII.] OF A SPECIAL NATURE. 73 
 
 pression that his Honor is asserting an inherent jurisdiction 
 in the Court of Chancery to disobey a clear act of parha- 
 ment in cases of fraud. But I apprehend that that was 
 not the meaning of the Court, but that his Honor was 
 treating the point as one of constriTction upon the equity 
 of the statute, and so held that the legislature did not 
 mean the clause to be imperative. At any rate, the asser- 
 tion of any such paramount jurisdiction is not necessarily 
 involved in the decision, which may be supported consist- 
 ently with the subordination of the Court of Chancery to 
 the authority of the legislature, on the ground explained in 
 an early part of the original treatise (.s), that the Court acts 
 on the person proceeding, not on the Court of superior or 
 co-ordinate jurisdiction. The orders in the two cases above 
 cited were not properly orders in defiance of the direction 
 of the legislature, but orders on the persons, staying them 
 from availing themselves of the benefit of the orders made 
 in their favor. For it will be observed by the learned 
 leader, on examination of the cases of Goodman v, De 
 Beauvoir and Castendieck v. De Burgh, that in both cases 
 the order for payment had been made ; so that what the 
 legislature directed to be done had been done, and then, 
 and not till then, did the Court interfere by injunction, to 
 restrain the person, who had obtained the order for pay- 
 ment, from receiving the monies ordered to be paid to 
 him (0. 
 
 (s) See p. 96 of the Treatise. determined, the granting or refusal of 
 
 (t) I think it right to apprise the an injunction has been a simple matter 
 
 learned reader, that he will not find of course. I have confined rny selec- 
 
 mention in this chapter, of all the tion of cases to those in which, as I 
 
 cases in the books, in which injunc- understand them, some point purely 
 
 tions have been applied for on behalf or materially relating to the law and 
 
 of or against companies, as in many of practice of injunctions, has been in- 
 
 the cases the question has been purely volved. 
 one of construction, and that being
 
 74 INJUNCTIONS TO STAY -WRONGFUL ACTS [PART II. 
 
 CHAPTER IX. 
 
 Injunctions in Matters of Bankru-ptcy. 
 
 The question of the jurisdiction of the Court of Review, 
 since the 1 & 2 Will. IV. c. 56, and 5 & 6 Will. IV. c. 29, 
 to enjoin against proceedings at law, was raised and much 
 discussed in Ex "parte Van Sandau (a). The point was not 
 decided, as the injunction granted was discharged upon 
 other and very special grounds. 
 
 CHAPTER X. 
 
 Injunctions to remove Outstanding Terms and other 
 legal Impediments. 
 
 Although the Court win at the proper time restrain 
 the setting up of a term in an action to try the title ; yet 
 if in such an action the plaintiff at law has actually re- 
 covered by the aid of a term, even though he led the 
 defendant to suppose he meant fairly to try the legal title, 
 and the production of the term was a surprise upon him, 
 the Court will not on that ground set aside the j udgment 
 at law (J). 
 
 (a) 1 Phil. 445. 
 
 (b) Master of Clare Hall v. Harding, 6 Hare, 273.
 
 CHAP. XI.] OF A SPECIAL NATURE. 75 
 
 CHAPTER XL 
 
 Of Injunctions in Interpleader Suits. 
 
 1. Of dissolving the Injunction in an 
 Interpleader Suit, and of the course 
 of proceeding generally. 
 
 2. Of the Affidavit of no Collusion, and 
 
 the Terms on which the Suit sustain- 
 able. 
 3. Construction of the Interpleader Act, 
 1 8^2WilLIF.c.58. 
 
 1. A PLAINTIFF in an interpleader suit ought to use due 
 diligence to get in the answers of the conflicting claimants, 
 to enable the Court to put the disputed claim in a train of 
 investigation. If, therefore, he obtains the usual injunc- 
 tion, and, on one of the answers coming in, does not use 
 due diligence to get in the other, the defendant answering 
 is right in moving to dissolve. But if, after the notice of 
 motion, the other defendant's answer comes in, making a 
 claim, the Court will not dissolve the injunction, or order 
 the money paid in by the plaintiff to be paid out to the 
 first defendant, but will continue the injunction, and put 
 the disputed claim in course of determination («). The 
 costs in such a case were reserved. 
 
 But the defendant who has answered is not entitled, as 
 a matter of course, to dissolve the injunction, because the 
 other has not, for the Court is not then in a position to 
 dispose of the matter. The proper course for the Court, is 
 either to give the plaintiff further time to get in the second 
 answer, or to take the bill pro confesso ogainst the non- 
 answering defendant; or, if the plaintiff has not entitled 
 himself to that indulgence, then to dismiss the bill. It is 
 clearly irregular, until all the answers are in, to refer the 
 disputed claim to the Master (b). 
 
 (a) Townley v. Dean, 3 Beav. 213. (6) Masierman v. Lewin, 2 Phil. 182.
 
 76 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 2. It has been stated as the practice (c) that an inter- 
 pleader bill must be accompanied by an affidavit of no 
 collusion. If the bill is filed by the officer of a company 
 on behalf of the company, the affidavit must go, not to 
 there being no collusion between the plaintiff and the 
 defendants — the plaintiff being merely nominally so — but 
 to there being no collusion between the company and the 
 defendant {d). 
 
 If a bill of interpleader is filed in respect of a sum of 
 money on which interest is recoverable at law, the plaintiff 
 ought by his bill to offer to pay the interest (e). 
 
 3. It has been decided that the Interpleader Act, 1 &: 2 
 Will. IV. c. 58, does not apply to cases where the con- 
 flicting claims turn upon an equitable question. Where, 
 therefore, a ship and cargo were in the possession of the 
 sheriff, and the contest was between the execution creditor 
 and an assignee, to whom the assignment had been made 
 before the cargo was on board the ship, the Court con- 
 sidered the question as fit to be decided in equity, because 
 an assignment of prospective cargo, though bad at law, 
 might be good in equity. Under these circumstances the 
 Court restrained proceedings at law, taken under a judge's 
 order made under the Interpleader Act (/). 
 
 (c) See p. 325 of the Treatise. (e) Ibid. 
 
 (d) Bignold V . AudUind, 1 1 Sim. 23. (/) La»!gtott v. Tforto/i, 3 Beav. 464.
 
 CHAP. XII.] 
 
 OF A SPECIAL NATURE. 
 
 77 
 
 CHAPTER XII. 
 
 Of the Jurisdiction in general to grant Injunctions to stay 
 wrongful Acts of a special nature. 
 
 1, Of unintentional Injury to Rights of 
 Property. 
 
 2. General Principle on which the 
 Court proceeds in restraining or re- 
 
 fusing to retrain the Exercise of dis- 
 puted Rights. 
 3. Inju7ictions to restrain Sales, 
 
 I. Whatever may be the doctrine at law, it seems that 
 it is not the doctrine of equity, that, if a person has unin- 
 tentionally done an act injurious to the right of property 
 of another, he is on that ground not amenable to the pro- 
 cess of the Court. In the case in which this point was 
 raised (a), the plaintiff, a patentee, had brought an action 
 against the defendant, and the Court of Exchequer had 
 held that there was no direct infringement, because the 
 defendant had not used the specific substance which 
 eo nomine was the subject of the patent ; and there was no 
 indirect infringement, because, although the defendant 
 had used two substances combined which j)roduced the 
 patented substance, he was not aware that they would 
 form that substance (&). After this the plaintiff moved in 
 the suit in equity for an injunction, and the defendants 
 relied on the determination of the Court of common law. 
 Sir L. Shadwell, V. C. E , expressed a strong opinion 
 against the decision at law ; and it was said that in the case 
 of Stevens v. Keating, Lord Cottenham, C, had also dis- 
 approved the doctrine of Heath v. Unwin{c). Under all the 
 
 (a) Heath v Unuin, 15 Sim. 552. 
 (6) Ibid.; and see 13 Mecs. Sc 
 Wels. 583. 
 
 (■)) 2 Phil. 331, no observation on 
 this point is to be found in the Heport.
 
 78 INJUNCTIONS TO STAY WRONGFUL ACTS [PART II. 
 
 circumstances, however, no order was made : the bill was 
 retained for twelve months, with liberty to the plaintiff to 
 bring an action. It must, in this state of the authorities, 
 be considered undecided whether, when a legal right is 
 invaded in ignorance of the fact of the invasion, an injunc- 
 tion will be granted. In support of the view taken by the 
 Court of Exchequer, it is to be observed, that if equity will 
 relieve generally against the consequences of a mistake of 
 fact, as it unquestionably will, it would seem to follow that 
 it ought not to punish by its prohibitory process an act 
 done in ignorance of, or under mistake as to, the conse- 
 quences of that act. On the other hand, if another is in 
 possession of and uses profitably my money, believing it 
 to be his own, unquestionably he will be compelled to 
 account to me for the whole ; and it may be asked, what 
 difference there is between possessing and using my money, 
 or possessing and using my invention, if by such possession 
 and use money is made. 
 
 2. The proposition stated in the Treatise (c), that where 
 the Court has strong doubts whether the legal right will 
 be supported in a Court of law, it will not grant an injunc- 
 tion, hardly perhaps states strongly enough the principle 
 on which the Court proceeds, which is that, wherever the 
 legal right is doubtful, it must be tried at law ; and that 
 all the Court has to do in the meantime is to protect the 
 existence of the right in dispute for the party who shall 
 appear ultimately entitled to it, doing as little injury as 
 possible to either party ; and for that purpose maintaining 
 or refusing wholly or partially an injunction, according 
 as the balance of inconvenience lies on one side or the 
 other (d). 
 
 (c) p. 330. n. (to) ; also Clarence Railway Co. v. 
 
 (d) See Bacon v. Jones, 4 Myl. & Great North of England Junction Co., 
 Cr. 443 ; Kemp v. London and Brighton 2 Railw. Cas. 763 ; and Cory v. Yar- 
 Railway Co., 1 Railw. Cas. 507, and mouth and Norwich Railway Co., 3 
 the cases cited in the Treatise, p. 208, Railw. Cas. 524.
 
 CHAP. XII.] OF A SPECIAL NATURE. 79 
 
 In Ridgioay v. Roberts {e) the dispute was as to the 
 right of dealing with a ship and her cargo. The Court 
 held that if the plaintiff had any title, it was legal; that 
 title was disputed ; and what the defendant had done — 
 which was to take forcible possession of the ship — was 
 therefore trespass, if any ofl'ence at all. The Vice-Chancellor 
 Wigram would not grant the injunction, because that would 
 in effect enable the plaintiff to defeat, or at least so to em- 
 barrass the defendant's title, as to make it worthless; 
 neither would he simply refuse the injunction. His Honor 
 threw out that the Court might take possession of the ship, 
 to preserve her for the benefit of the party who should be 
 found entitled. Eventually no order was made affecting 
 the possession of the ship, the intimation of the Vice- 
 Chancellor being apparently sufficient to induce both 
 parties to abstain from any dealings with her; and the 
 motion stood over, the defendant undertaking to bring an 
 action of trover for the ship, with liberty to either party to 
 apply for possession or use of her. Nothing in the nature 
 of a threat or danger of injury incapable of compensation 
 by damages was alleged or shown ; if any such case had 
 been made, the Vice-Chancellor thought an injunction 
 might be granted. This dictum is quite consistent with 
 the authorities relating to injunctions against trespass (/). 
 
 3. Under this head may be noticed a somewhat singular 
 case, in which an injunction was granted at the suit of a 
 married woman, entitled to separate estate, to restrain the 
 husband from disposing of or intermeddling with such 
 separate estate {g). In the case referred to, leasehold 
 houses and personal chattels, and some money in a savings 
 bank, were settled to the separate use of the plaintiff. 
 The husband, one of the defendants, took possession and 
 disposed of some of the chattels, and entered into and kept 
 
 (e) 4 Hare, 106. {g) Green v. Green, 5Hare, 400, n. 
 
 (/) P. 183 et seq. of the Treatise, and the cases there cited.
 
 80 INJUNCTIONS TO STAY WRONGFUL ACTS, SzC. [PART II. 
 
 possession of one of the houses, and threatened to take 
 possession of the money in the savings bank. An injunc- 
 tion was granted to restrain him from doing these acts, and 
 in particular from continuing in possession of the house. 
 A motion to dissolve was refused by the Vice-Chancellor 
 of England. The objection was taken as to that part of 
 the order which restrained the husband from continuing 
 in possession of the house, — that it amounted, in fact, to 
 a divorce a mensd et t/ioro. To this the Court answered, 
 that if it was so, the husband had his remedy in the Eccle- 
 siastical Court. Perhaps a more solid objection to that 
 part of the order would have been, that it was, in fact, aa 
 equitable ejectment.
 
 ( 81 ) 
 
 PART III. 
 
 OF THE PRACTICE IN MATTERS OF INJUNCTION. 
 
 CHAPTER I. 
 
 OF THE MODE OF OBTAINING INJUNCTIONS. 
 
 Section I 
 As to Injunctions to stay Proceedings at Law. 
 
 1. When the common Injunction may 
 
 be obtained. 
 
 2. As to advancing Proceedings which 
 
 would delay the common Injunc- 
 tion, 
 
 3. Exceptions to the Rule, that an In- 
 
 junction against Proceedings at 
 
 Law cannot be obtained except 
 
 on Billjiled. 
 When a special Injunction to stay 
 
 Proceedings at Law obtainable. 
 Of restraining Orders, Distringas, 
 
 and Interim Orders. 
 
 1. IT is stated in the Treatise (a), that a motion for the 
 common injunction for default of appearance or answer, 
 may be made on any day whether in or out of term. It 
 should be added, as well in the long vacation as at any 
 other time, wherever and whenever in fact the Court is 
 sitting ; and so it was held on a motion to discharge orders 
 nisi and absolute, obtained in the long vacation, for irregu- 
 larity (b). 
 
 (a) Page 348. 
 
 (6) Lane v. Barton, \ Phil. 363. 
 See also Reecev. Humble, 10 Sim. 117, 
 and Lord Harborough v. Wartnaby, 
 
 1 Phil. 364. But that there Is an ex- 
 ception to the rule laid down in the 
 last case, see Robertson v. Skelton, 10 
 Beav. 197.
 
 82 OF THE PRACTICE IN MATTERS [PART III. 
 
 2, The principle acted upon in advancing a demurrer is 
 acted upon in other cases when the effect of delay would be 
 injury to the plaintiff. Thus, by the practice of the Court, 
 a plaintiff cannot refer exceptions to the answer for in- 
 sufficiency, before the expiration of eight days, (except in a 
 case of election). The consequence would be, under 
 given circumstances as to the period fixed for the trial at 
 law, that the plaintiff might be unable to obtain the com- 
 mon injunction in time to stay trial. In such a case the 
 Court will refer the exceptions instanter. It is not, how- 
 ever, of course to do so, but the plaintiff must make a case, 
 showing that he would be seriously prejudiced by the 
 delay ; that he is advised that he has good ground for 
 equitable relief; and that he makes the application bona 
 fide, and not for delay (c). So if exceptions are shown 
 for cause against dissolving an injunction on the same day 
 they are filed, the Court will still refer them instanter, 
 notwithstanding the 16th order of 1845 {d). 
 
 3. Within these exceptions has been held to fall the 
 case of a creditors' suit, where both the preliminary decree 
 for accounts, and a decree on further directions had been 
 made, and the plaintiff had been found a creditor of the 
 testator to the amount of 1 100/., but no order was made for 
 continuing an injunction that had been made in the suit 
 restraining the executor from getting in the assets. The 
 executor afterwards brought an action against the plaintiff 
 for a much larger sum than llOOZ. alleged to be due from 
 him. The Court granted an injunction, although it was 
 contended that the final decree having been made without 
 continuing the injunction, it was gone. No authorities ap- 
 pear to have been cited (e). 
 
 (c) Muggeridge s. Sloman,9 B^diV. (d) Hughesv. Thomas, 7 Be3LV. 584. 
 
 314; Teesdale v. Twindell, 9 Beav. (e) OUlJield v. Cobbett, 5 Beav. 
 
 491. 132.
 
 CHAP. I.] OF INJUNCTION. 83 
 
 4. If on a bill being filed by some shareholders of a com- 
 pany on behalf of tijemselves and all others, the common 
 injunction has been obtained, restricting the defendants in 
 the usual form from proceeding against the plaintiffs, that 
 will bind the defendants only in regard to the plaintiffs 
 actually named on the record. But in that case, a special 
 injunction, founded on the common injunction, may be 
 obtained on special application, to restrain the defendants 
 from proceeding against any of the shareholders repre- 
 sented, it being open, on such a motion, to the defendants 
 to show special grounds why the special injunction should 
 not be granted (/). 
 
 5. Before concluding this subject, must be noticed the 
 effect of the 4th and 5th sections of the 5 Vict. c. 5. The 
 4th section gives to the Court of Chancery power to re- 
 strain the Bank or any other public company on motion 
 or petition, without bill filed, from permitting the transfer 
 of stock, or from paying dividends. The 5th authorizes 
 the Court to issue a writ of distringas, in the form set out 
 in. the schedule to the act, in substitution of the distringas 
 formerly issuable out of the Court of Exchequer. 
 
 In a case of Ex parte Amyot {g), the plaintiff" having 
 before the act sued out a distringas in the Court of Ex- 
 chequer, let his distringas fall, by not filing a bill within the 
 time required under the old practice after notice by the 
 Bank. He then, after the act, filed a bill, and obtained an 
 ex parte injunction or restraining order under the 4th sec- 
 tion of the act. It was held that his restraining order 
 must be discharged on this ground, that having exhausted 
 his remedy under the old practice, he could not afterwards 
 avail himself of the remedy given by the new statute. But 
 where a party proceeding wholly under the statute, obtains 
 a distringas under the 5th section, that does not, it would 
 seem, preclude him from afterwards obtaining a restraining 
 
 (/) Lund V. Blanchard, 4 Hare, (g) 1 Phil. 130, n. (a). 
 
 290. 
 
 g2
 
 84 OF THE PRACTICE IN MATTERS [PART III. 
 
 order under the 4th (A) ; the remedies are cumulative. A 
 restraining order under the 4th section continues in force 
 until discharged. It does not fall merely on a bill being 
 filed ; but it would seem that the statute did not intend to 
 confer a new jurisdiction on the Court, otherwise than for 
 interim purposes, and therefore that in order to sustain the 
 restraining order, a bill should be filed in due time (i). 
 
 It is also proper to notice the modern practice which 
 has grown up of granting what are termed interim orders. 
 They are in fact temporary ex parte injunctions, which are 
 granted when the plaintiff not showing quite a case for an 
 ex parte injunction without more, shows a case for giving 
 short notice, and for protection in the mean time. The 
 interim order is therefore an injunction obtained ex parte, 
 to be in force till the injunction has been disposed of on 
 notice. It is generally accompanied by putting the plain- 
 tiff on terms to give an undertaking for any damage done 
 to the defendant by the interim order. 
 
 Section II. 
 As to obtaining Special Injunctions. 
 
 1. As to the Exceptions to Rule that an 
 
 htjunction cannot be obtained ex- 
 cept on Bill. 
 
 2. Injunctions against Persons not 
 
 Parties. 
 
 3. What requisite to support an Ex 
 
 parte Application, 
 
 4. Other Points. 
 
 1. The cases of exception mentioned in the Treatise (A), 
 to the rule that a special injunction cannot be obtained 
 
 (h) Ex parte Marquis of Hertford, 584 ; S. C. 1 Phil, 203. 
 1 Phil. 129. (?c) Page 364 et seq. 
 
 (i) Re Marquis of Hertford, 1 Hare,
 
 CHAP. I.] OP INJUNCTION. 86 
 
 without a bill, have been there mentioned, and the autho- 
 rities have been referred to, because the learning, though 
 obsolete, may not be without its use. At this day, how- 
 ever, the universal practice is to file a bill in or out of vaca- 
 tion. If the plaintiff" wishes to move on notice, he may 
 obtain leave to serve a notice of motion, upon the state- 
 ment of counsel that subpoena has issued, and that a bill 
 is prepared though not filed. Of course the bill must be 
 filed before the motion is actually made {I). 
 
 2. An injunction was granted in a recent case where a 
 receiver had been appointed and had let to A. as a tenant 
 from year to year, A. agreeing to cultivate in a husband- 
 like manner. A. being under notice to quit, was removing 
 the hay and straw, &c. contrary to the custom of the 
 country. He was restrained, although no party to the 
 cause (w). 
 
 3. It has been stated in the Treatise, that it is the duty 
 of a person coming with an ex parte application not to 
 misrepresent the facts, and to state all the material facts (n), 
 and if he does not, the injunction will be dissolved on that 
 ground alone, even although he should afterwards show 
 merits. To this may be added, that it is his duty to come 
 quickly upon the discovery of his right, and without 
 having in any manner led the opposite party to suppose 
 his case to be different from that which he really intends 
 to make (o). 
 
 4. Where the very frequent course is taken of ordering 
 a motion for an injunction to stand over, with liberty to 
 the plaintiff^ to bring an action, and the plaintiff" does not 
 
 (I) Fosbrooh v. Woodcock, 12 Jur. ther, Hilton v.Ld. Granville, 4 Beav. 
 
 956. 130. 
 
 (m) Walton V.Johnson, \b Sim. 352. (o) Barker v. North Staffordshire 
 
 (n) Treatise, p. 372 ; and see fur- Railway Company, 12 Jurist, 589.
 
 86 OF THE PRACTICE IN MATTERS [pART III. 
 
 proceed to bring any action, the defendant will be entitled 
 to have the motion dismissed with costs (p). 
 
 Though in general a special injunction cannot be granted 
 unless prayed, yet under special circumstances it may be 
 done {q). And in a suit for foreclosure, if after decree the 
 mortgagor being in possession commits waste, an injunc- 
 tion will be granted, although the bill does not pray it (r). 
 
 (p) Perry v. Truefitt, 6 Beav. 418. (»•) Goodman v. Kine, 8 Beav. 379. 
 
 (q) Blomfield v. Eyre, 8 Beav. 250.
 
 CHAP. II.] 
 
 OF INJUNCTION. 
 
 87 
 
 CHAPTER II. 
 
 Extending the common Injunction to stay Trial. 
 
 1. As to the Affidavit of materiality . 
 
 2. Effect of Delay in obtaining com- 
 
 mon Injunction. 
 
 3. As to Affidavit being contradicted, 
 
 and of the doctrine a/' Thorpe v. 
 Hughes. 
 
 4. Form of the common Injunction. 
 
 5. As to resisting the Motion on the 
 
 ground oj' Answer being fled, and 
 as to Insufficiency of the A nswer. 
 
 6. Where Mution to extend made on 
 
 amended Bill. 
 
 1. 1 HE rule that, in support of a motion to extend, tlie 
 affidavit of materiality will not do, if made only by the 
 plaintiff's solicitor, unless good reason is shown why the 
 plaintiff did not make it, has been supported in a recent 
 case («). 
 
 2. In the same case, the plaintiff did not move to extend 
 till the 2nd December, the trial being fixed for the sittings 
 commencing on the 6th. It appeared that the action was 
 brought on the 11th August; that the plaintiff from the 
 circumstances must have known what was the cause of 
 action, and nevertheless he did not file his bill till the 8th 
 November ; and even after that, he knew that proceedings 
 were going on at law, and might have got the common 
 injunction on the 17th November, instead of which he 
 never moved for it till the 24th. Under these circum- 
 stances it was held that his delay would preclude him 
 from obtaining an order to extend so near the time of trial, 
 unless the answer was insufficient ; and, the answer having 
 been excepted to and found insufficient, the Vice-Chan- 
 cellor looked into it to see whether the defendant had mis- 
 
 (a) Scotson v. Gaury, 1 Hare, 99.
 
 88 OF THE PRACTICE IN MATTERS [PART III. 
 
 conducted himself by evasion in his answer, in which case 
 his Honor thought he might, perhaps, set off such miscon- 
 duct against the dilatoriness of the plaintiff. The answer 
 was substantially sufficient, though technically insuffi- 
 cient, and therefore the motion was refused. 
 
 It has been also held that an order to extend will not 
 be made close to the time of the assizes, even on the terms 
 of the plaintiff giving security for costs, if there has been 
 gross-delay (6). 
 
 3. With reference to the point discussed in the Trea- 
 tise (c) in reference to Thorpe v. Hughes {d), may be noticed 
 the recent case of Ashby v. Jackson (e) in which the case 
 of Thorjie v. Hughes was cited, and its doctrine acquiesced 
 in by the Court. It is to be presumed, however, from what 
 is stated in the report of Ashhy v. Jackson, that that case 
 fell more properly under the rule in White\ .Steinwacks{f), 
 as it would seem that in Ashhy v. Jackson the fact that 
 the discovery would be of no use to the plaintiff in his de- 
 fence at law, appeared upon the pleadings, if at all. 
 
 4. The pendency of proceedings before a judge at cham- 
 bers to settle the pleas in an action is no ground for de- 
 parting from the common form of an order to extend the 
 common injunction, by inserting a direction that it shall 
 be without prejudice to the plaintiff at law proceeding to 
 complete the issue {g). 
 
 5. In reference to the rule, that the answer, in order to 
 be used as an objection against an order to extend, must 
 be filed on the preceding day, it may be stated that an 
 allegation at the bar that the answer is drawn, and an 
 undertaking to file it before the trial, is not a sufficient 
 ground for resisting a motion to extend (A). 
 
 (6) Stokes V. Wilson, 12 Sim. 91. (/) 19 Ves. 83. 
 
 (c) P. 378. (g) Woodall v. While, 3 Hare, 411. 
 
 (d) 3 Myl. & Cr. 761. (/i) Partridge v. Comiugi, 7 Jurist, 
 (c) 6 Beav.336. 1122.
 
 CHAP. II.] OF INJUNCTION. 89 
 
 The case of 3Iun7iings v. Adamson {i) has been overruled 
 by a recent decision, Scotsonv. Gauryiji); in that case 
 the common injunction was obtained on the 24th Novem- 
 ber, and notice of motion given for the 2nd December to 
 extend the injunction to stay trial, which was fixed for the 
 sittings commencing on the 6th December ; the answer 
 was filed on the evening of the 1st December, and on the 
 motion being made on the following day, the Court was 
 asked, upon the authority Mannings v. Adamson, to look 
 at the answer without exceptions, to see whether it was 
 insufficient. The Vice-Chancellor Sir J. Wigram, after 
 taking time to consider, said, " When the case was men- 
 tioned yesterday, I was strongly impressed with the belief 
 that the practice of the Court had not been in accordance 
 with the course which Sir Anthony Hart is reported to 
 have taken in the case of Mannings v. Adamson. There 
 are many other cases in the books in which the same rea- 
 sons of hardship on the plaintiff in equity, and the same 
 apparent necessity for the Court to look into the answer 
 must have existed, as in the case of Munnings v. Adamson, 
 yet in no other case does it appear that the Court ever 
 took upon itself, without exceptions before it, to examine 
 the answer and decide upon its sufficiency. I have re- 
 ferred to the cases of Whitehouse v. Hickman, Ibhetson v. 
 Booth, Bruce v, Wehb and Bishton v. Birch. I also 
 find, upon inquiry, that the most experienced registrars 
 have no knowledge of any such a practice as that which I 
 am desired to follow upon the Q.\xi\\oniy o{ Munnings v. 
 Adamson. In addition to the cases which I have men- 
 tioned, I have been referred to that of Thompson v. Byrom, 
 but I do not find that Lord Langdale in that case fol- 
 lowed, or had occasion to follow, the precedent of Mun- 
 nings V. Adamson. If it had appeared that it was the 
 practice of the Court to do that which I am now asked to 
 do, I should of course have been bound to follow that 
 practice, but that certainly does not appear. Very serious 
 (») 1 Sim. 510. {k) 1 Hare, 99.
 
 90 OF THE PRACTICE IN MATTERS [PART III. 
 
 objections would in my opinion attend such a practice. 
 If the plaintiff delivers exceptions, the defendant may put 
 in a further answer, and give the discovery which is sought, 
 and save his opportunity of immediately proceeding to 
 trial. On the other hand, if the Court takes up the an- 
 swer and merely says it is sufficient, without defining in 
 what particulars it is so, wdiich it cannot adequately do 
 without exceptions being taken, there are no means within 
 the practice of the Court by which the defendant can file 
 a further answer, and thereby relieve himself from the in- 
 junction. Nor has he the means of combating the opinion 
 of the Court upon the very question of the sufficiency of 
 the answer. It was suggested that the Court might put 
 the plaintiff upon the terms of filing exceptions instanter, 
 but he may not be able, even if willing, to do so in time to 
 admit of a further answer being filed before the day of 
 trial, in the meantime the action is restrained by the in- 
 junction. This is not just, unless the defendant is in some 
 default." But in such a case, if the plaintiff will except 
 to the answer, the Court will hear the apphcation in- 
 stanter. 
 
 6. In Stratford v. Lewis (I) the same point that arose 
 in Simes v. Duff {m) occurred again before the learned judge 
 who had decided that case, and his Honor again made an 
 order to extend, Mellor v. Cresswell (n) being cited. 
 
 Since the cases of Mellor v. Cresswell and Howard v. 
 Clffe (o), it has been held by Lord Langdale, M. R., in a 
 case (p) where there was a common injunction obtained 
 upon the answer being found insufficient; then an order 
 to amend the bill without prejudice to the injunction ; and 
 then amendment of the bill accordingly ; that an order to 
 extend the common injunction to stay trial might be 
 granted. The motion was made on the 3rd of July, and 
 
 (0 8 Jurist, 484. (o) 3 Jurist, 817. . 
 
 (m) 8 Sim. 270. (p) Archer v. Hudson, 6 Beav. 
 
 (n) 2 Myl. & K.616. 474.
 
 CHAP. II.] OF INJUNCTION. 91 
 
 the commission-day appointed for the 12th. His Lordship 
 appears to have considered the case as distinguishable 
 from Howard v. Cliffe, as he observed, that if the autho- 
 rity of that case apphed, he should refuse the motion. The 
 report of Archer v. Hudson does not, however, state the 
 grounds on which the Court distinguished it from Howard 
 V. Cliffe. 
 
 And still more recently, in Goddard v. Smith (q), both 
 Mellor V. Cressicell and Simes v. Duff being cited, the 
 Master of the Rolls held that where an answer had been 
 reported insufficient, and then the plaintiff obtained an 
 order to amend, and that the defendant might answer the 
 exceptions and amendments together, and at the same 
 time obtained the common injunction, a motion to extend 
 the injunction to stay trial was regular. 
 
 (?) 8 Beav. 41.
 
 92 OF THE PRACTICE IN MATTERS [PART II. 
 
 CHAPTER. III. 
 
 Of the Effect on Injunctions of Amendments, and 
 of reviving an Injunction. 
 
 Effect on the common Injunction 
 of Amending, and of applying 
 for Leave to amend without Pre- 
 judice. 
 
 2. Application of the third Order of 
 9th of May, 1839. 
 
 1. In Brooks V. Purton (a) the Vice-Chancellor Knight 
 Bruce, following Ferrand v. Hamer (h), appears to have 
 considered the point in that case as settled independently 
 of the second order of May, 1839. However that may be, 
 the practice is now settled by that order; and accordingly 
 is the case of Warhurton v. Blachwall Railway Com- 
 pany (c) ; but it does not follow from that case, that the 
 fact of amending the bill may not under circumstances af- 
 ford ground for dissolving the common injunction, without 
 answering, and independently of the merits of the case (d). 
 In Wriyht v. King (e), after the answers had been filed 
 more than twelve months, a motion was made to the Court 
 for leave to amend a bill without prejudice to the injunc- 
 tion ; and it was held, that as the plaintiff was desirous to 
 amend, with an adjunct, (viz. that the amendment should 
 be without prejudice), over which the Master had no juris- 
 diction, the application was properly made to the Court, 
 and not to the Master. In this case, neither the second 
 order of May, 1839, nor the case of Warburton v. The 
 London and Blackwall Railway Company (f), were men- 
 tioned. It is difficult, consistently with the latter case, to 
 see why, in Wright v. King, the application should not 
 
 (a) 1 You. & Coll. C. C. 271. (d) Brooks v. Purton cited supra. 
 
 (6) 4 Myl. & Cr. 143. (e) 9 Beav. 161. 
 
 (c) 2 Beav. 253. (f) 2 Beav. 253.
 
 CHAP. III.] OF INJUNCTION. 93 
 
 have been made to the Master, because it was unnecessary 
 to have inserted in the order for hbcrty to amend, the 
 words without prejudice, and therefore the common ap- 
 phcation, which was within the Master's jurisdiction, would 
 have been sufficient. Probably all that the Court meant 
 to say was, that if the plaintiffs desire their order to 
 amend to contain the words without prejudice, the appli- 
 cation must be made to the Court. 
 
 2. Before the third order of May, 1839, it had been 
 held, that the tenth order of 1833, so far as regarded 
 injunctions, did not apply, except to injunctions to be 
 granted on original bills; consequently that the plaintiff 
 could not have an injunction for default on an amended 
 bill till five weeks after appearance in a town cause, and 
 seven weeks in a country cause, if the amendment was 
 made after appearance; but if the amendment was made 
 before appearance, that rule did not apply {g). 
 
 But this construction of the order was in effect overruled 
 in Brooks v. Purton {h), where it was held that the tenth 
 order of 1833 included amended as well as original bills; 
 and that the third order of the 9th of May, 1839, applied 
 only to those cases where the equity for an injunction 
 contained in the original bill having been effectually dis- 
 placed by the answer, the plaintiff" afterwards introduced 
 a new case by amendment : it is in those cases only, there- 
 fore, that an affidavit of the truth of the amendments is 
 requisite. 
 
 The tenth order of 1833 is discharged by the first ge- 
 neral order of May, 1845, The third order of May, 1839, 
 remains in force. By that order it appears immaterial 
 whether the amendment is made before or after appear- 
 ance; in either case, if the defendant makes default in 
 pleading, answering or demurring within eight days after 
 appearance, the plaintiff" may have an injunction on his 
 amended bill, on affidavit of the truth of the amendments. 
 
 (g) See p. 394 of the Treatise. (/t) 1 Cr. & Phil. 233.
 
 94 OF THE PRACTICE IN MATTERS [PART III. 
 
 CHAPTER IV. 
 
 Of Breach of an Injunction and its Consequences. 
 
 \. Of Service of an Injunction. \ 2. What is a Breach. 
 
 1. As to what is sufficient service, generally an injunction 
 ought to be served on the defendant personally, or on 
 some person who by an order of the Court is substituted. 
 
 And where, before the orders of 26th October, 1842, 
 the clerk in court of the defendant was served, without 
 order, with an injunction, it was held that that was not 
 good service, because the clerk in court was only the 
 agent of the party to receive notice of the proceedings in 
 the cause; but an injunction is extraneous to the cause, 
 and not a proceeding in it. But, if the plaintiff cannot 
 succeed in serving it on the defendant, and the defendant's 
 solicitor refuses to accept service, service will be ordered 
 on the solicitor (a). 
 
 2. Whether a defendant has committed a breach of a 
 special injunction, is a mixed question of fact and of 
 construction ; and it need scarcely be observed that a de- 
 fendant, having been enjoined from permitting a particular 
 effect, capable of being produced by several causes, to be 
 produced by a given cause, is not to be treated as guilty 
 of a breach, merely because the effect has taken place, 
 without proof connecting the effect with the particular 
 cause. This was held in a case of Dawson v. Paver {b), 
 
 (o) Kirkman v. Honnor, 6 Beav. 400. (6) 5 Hare, 424.
 
 CHAP. IV.] OF INJUNCTION. 95 
 
 The point was simply one of evidence, and seems to have 
 been almost too clear for argument. 
 
 It is a breach, after the common injunction has been 
 extended to stay trial, to obtain a judge's order for chang- 
 ing the venue (c). And it is a breach of the common 
 injunction restraining execution, if the defendant, having 
 paid the money in dispute into the Court of law, proceeds 
 after verdict to obtain a rule nisi to show why the money 
 should not be paid out to him ; for that is a step towards 
 execution (d). 
 
 But if a motion to commit for breach of an injunction for 
 commencing an action, has been refused by the Court be- 
 low, and then, pending a motion in the nature of an appeal 
 motion, the plaintiff' pleads to the action, that is not waiver 
 of his right to move to commit before the superior Court(e). 
 
 In Welledey v. Lord 3Iornirigton {f) a motion was made 
 to commit one Battley (who was Lord Mornington's ste- 
 ward) for cutting timber, &c. in defiance of an injunction 
 granted against Lord Mornington'personally, without men- 
 tioning his servants and agents. Battley had notice of 
 the injunction. Lord Langdale allowed an objection that 
 the injunction being against Lord Mornington alone, it 
 was no breach in Battley to do the acts enjoined, and re- 
 fused the motion, but without costs {g). 
 
 In a recent case (A) the bill was filed by three share- 
 holders of a company on behalf of themselves and the 
 others, and the common injunction was obtained, running 
 in the usual form to restrain proceedings by the defendants 
 against the said comj)lahiants. The defendants put in their 
 answer, and on account of its length and the extent of the 
 transaction in question the plaintiff's obtained time for 
 showing cause against dissolving the injunction on the 
 
 (c) Pariente\. Bensman, 13 Sim. (/) Rolls, 4 May, 1848, MS., 
 522. and 12 Jurist, 867. 
 
 (d) Brooks v. Purton, 1 You. & (g) See also on this point Lewis v. 
 Coll. C. C. 271. Morgan, 5 Price, 518. 
 
 (e) Newman v. Ring, 10 Jurist, (ft) Lund v. Blanchard, 4 Hare, 
 463. 290.
 
 96 OF THE PRACTICE IN MATTERS [PART III. 
 
 merits. In this state of things the defendants proceeded 
 in their action against others of the shareholders not named 
 as plaintiffs; and it was held that this was no breach, as 
 the injunction only applied to the persons named as com- 
 plainants, and could only, as an order of course, benefit the 
 shareholders generally, so far as an order in favor of those 
 assuming to represent the shareholders would benefit them. 
 But the Court held that in such a case, having regard to 
 the rule which admits of a numerous body being repre- 
 sented by a few of its members, a special motion to restrain 
 proceedings against the shareholders represented, but not 
 named, might be founded on the common injunction ob- 
 tained in favor of the persons named ; but on such a mo- 
 tion it would be open to the defendants to show any special 
 circumstances by which they might be prejudiced if the in- 
 junction were granted, and against which the Court would 
 protect them, if all the shareholders were named as plain- 
 tiffs.
 
 CHAP, v.] 
 
 OF INJUNCTION. 
 
 97 
 
 CHAPTER V. 
 
 OF THE PRACTICE ON DISSOLVING INJUNCTIONS. 
 
 Sect. I. 
 As to dissolving Injunctions to stay Proceedings at Law. 
 
 1. Of making absolute or discharging 
 
 the Order Nisi. 
 
 2. Whether the Order Nisi can be dis- 
 
 pensed with. 
 
 3. Of showing Exceptions for Imperti- 
 
 nence as Cause against dissolving. 
 
 4. Practice as to dissolving or referring 
 
 Answer for Insufficiency. 
 
 5. When Orders Nisi may be obtained 
 
 and made absolute. 
 
 6. As to dissolving Injunction against 
 
 some of several Defendants ; and 
 as to Motion by some to dissolve 
 against all. 
 
 7. Effect of a Demurrer being allowed. 
 
 8. Of reading Affidavits against the 
 
 Answer, or in support of Allega^ 
 tions ignored by the Answer. 
 
 1. 1 HE terms of the order nisi to dissolve the common 
 injunction are, that the injunction is to be dissolved unless 
 the plaintiff, his solicitor having notice, shall, on a day 
 (named in the order) show to the Court cause to the con- 
 trary ; and these terms were considered to be inconsistent 
 with the allowance of any further time to the plaintiff to 
 show cause. Therefore, where the answer was filed on 
 the 30th May, and same day the defendant obtained and 
 served an order nisi, the Court refused on the 2nd June 
 (the day on which the cause was to be shown) to allow the 
 plaintiff any further time, although the answer was of 
 great length ; so that it was manifestly out of all question 
 that the two days could have been sufficient for the plain- 
 tiff to look into the answer to see whether exceptions 
 should be taken to it (a); but this rule has been departed 
 from in a late case, which seems undistinguishable from 
 
 (a) Stanley v. Bond, 5 Beav. 175. 
 
 H
 
 98 THE PRACTICE IN MATTERS [PART III. 
 
 Stanley v. Bond. In the case referred to, the plaintiff had 
 been unable to obtain an office copy of the answer at the 
 time when the defendant was entitled to move to make 
 the order nisi to dissolve absolute, and time was given to 
 the plaintiff to see whether he would show merits or ex- 
 ceptions for cause against dissolving {h). 
 
 2. The case of Sharpley v. P erring (c) was referred to in 
 Bordinave v.Wadeson (d), in support of a special motion to 
 dissolve at once the common injunction. The Court refused 
 the motion, with expressions of want of confidence in the 
 accuracy of the report of the case of Sharpley v. Perring, 
 which, his Honor observed, was stated to be ex relaiionct 
 without stating by whom it was reported. It is to be regret- 
 ted that the special circumstances in Sharpley v. Perring 
 are not stated in the report. In Bordinave v. Wadeson there 
 were no very special circumstances, and therefore Sharpley 
 V. Perring was clearly no authority for departing in that 
 case from the usual practice of first obtaining an order nisi. 
 The observations of the Court in Bordinave v. Wadeson 
 must be taken, however, to throw much doubt on the 
 authority of Sharpley v. Perring, for even the limited doc- 
 trine, that in any case (except cases of the class of Lacy v. 
 Hornehy {e) ) the order nisi can be dispensed with in pro- 
 ceeding to dissolve the common injunction. 
 
 3. In a very recent case the Vice-Chancellor of England 
 held, that, since the 11th Order of 1841, exceptions for 
 impertinence cannot be shown for cause against dissolving 
 an injunction(/). His Honor said, "Under the New 
 Orders of the Court, an answer cannot be referred gene- 
 rally for impertinence, but the matters alleged to be im- 
 pertinent must be specified by way of exception. Why, 
 then, may not the answer in this case be taken as an 
 
 (6) Gi6so7iv.C/wi/teis,8 Beav. 167. (e) 2 Ves. & B, 291. 
 
 (c) 8 Sim. 603. (/) Simeon v. Davis, 12 Sim. 46. 
 
 (rf) 1 Coll. 432.
 
 CHAP, v.] OF INJUNCTION. 99 
 
 answer, disregarding those parts of it which have been 
 excepted to as being impertinent." If this decision was 
 right under the Orders of 1841, it is so equally now under 
 the 38th Order of 1845. But the professed reason of it 
 seems open to this objection, that it does not answer the 
 reason given in Goodinge v. Woodham {g), viz. that as an 
 answer cannot be excepted to for insufficiency, if it is in- 
 tended to refer it for impertinence, and as there must be a 
 judgment upon the reference for impertinence before there 
 can be a judgment on the insufficiency, and as exceptions 
 for insufficiency may be shown as cause against dissolving, 
 all proceedings necessarily preceding them must also be 
 sufficient cause. If, in accordance with Simeon v. Davis, 
 the answer is to be taken as an answer, disregarding those 
 parts of it which are excepted to for impertinence, the 
 result would be, that a motion to dissolve would be made 
 upon statements in the answer, which may be afterwards 
 successfully excepted to as insufficient. 
 
 4. As to the practice on references for insufficiency, the 
 16th General Order of 1845, sect. 25, is substituted for the 
 5th General Order of 1828. 
 
 The 16th Order of 1845, sect. 25, has not altered the 
 practice as to referring exceptions instanter in injunction 
 causes, although in the 5th Order of 1828 injunction causes 
 are expressly excepted from the delay of eight days before 
 referring, and are not so in the Order of 1845. The prin- 
 ciple is this, that in an injunction cause the plaintiff is not, 
 technically speaking, put to refer his exceptions at all, but 
 his right is to show his exceptions as cause against making 
 the order nisi absolute ; and then the Court, to avoid giving 
 unjust credit to the exceptions, instead of looking into 
 them, makes the reference inero motu, or at the request of 
 the defendant (/O- The practice in other respects stated in 
 this section seems also unaffected by the 16th Order of 1845. 
 
 (g) 14 Ves. 536. (^h) Hughes v. Thomas, 7 Beav. 584. 
 
 h2
 
 100 THE PRACTICE IN MATTERS [PART III. 
 
 5. It has been settled that the Court is always open, 
 and that as well in the long vacation as at any other time, 
 both for granting and dissolving injunctions; and orders 
 nisi and absolute to dissolve the common injunction, both 
 obtained in the long vacation, were held regular (i). 
 
 6. The point referred to in the Treatise, p. 419, has lately 
 been decided upon a review of the authorities, and it has 
 been held that where there is a common injunction against 
 several defendants, some who have answered may dissolve 
 as against themselves before the answers of the others 
 have come in ; but they must first obtain the order nisi, 
 and then proceed in the usual course to make the order 
 absolute. The order nisi should also be taken expressly 
 worded, so as to dissolve as against the particular defend- 
 ants moving (j). In a recent case (k) an injunction had 
 been obtained, and afterwards extended, to stay trial in a 
 joint action; some of the defendants answered, and dis- 
 solved the injunction as against themselves ; afterwards 
 the others answered, but would not move to dissolve. 
 Those who had dissolved as ao:"ainst themselves then 
 moved to dissolve as against the other defendants, with- 
 out serving those others with notice of the motion. It 
 was held that, the action being joint, the interest must be 
 presumed to be joint in the absence of any suggestion to 
 the contrary ; it was held also, on the authority of Joseph v. 
 Douhleday (I), that some defendants may move to dissolve 
 against all ; and the plaintiff" not suggesting that the ab- 
 sent defendants desired the injunction to continue, that 
 notice to them was not necessary, and the injunction was 
 accordingly dissolved. 
 
 7. On the same principle, it should seem, on which it is 
 held, that if a bill is dismissed, an injunction granted on 
 such bill falls with it, is founded the rule, that where an 
 
 (i) Lane v. Barton, 1 Phil. 363. Jurist, 956. 
 
 0) Le-xis V. Smith, 7 Beav. 470. (/) 1 Ves. & Bea. 497. 
 
 (k) M'Giegor V. Conyngham, 12
 
 CHAP. V.J OF INJUNCTION. 101 
 
 injunction has been obtained, and a demurrer to the whole 
 bill is allowed, the injunction is gone, and that although 
 leave is given to amend (w). 
 
 8. In Forster v. Teivard(n), where the plaintiff showed 
 for cause against making the common order nisi absolute, 
 that the defendant had upon his answer been indicted for 
 perjury, and that a true bill had been found against him, 
 Lord Langdale, M. R., on the authority of Clapham v. 
 White, held that insufficient cause. 
 
 On the question whether, where facts are alleged by the 
 bill, and the answer simply ignores them, affidavits can be 
 read in support of the bill, there has been much conflict 
 of authority. In the case of Ord v. White (o) facts essen- 
 tial to the plaintiff's case were alleged in the bill, and by 
 the answer neither admitted nor denied, but simply ignored. 
 The Master of the Rolls thought (though it was not neces- 
 sary to decide the point, as he granted the injunction irre- 
 spectively of the affidavits tendered by the plaintiff,) that 
 in such a case affidavits may be read by the plaintiff to 
 prove the allegations of the bill. The case of Castellain v. 
 Blumenthal{p) was not cited in Ord v. White. 
 
 In Barwell v. Barwell{q) the defendant by her answer 
 stated, as to certain facts, that she had been informed and 
 believed it to be true, &c.; and Ord v. White was cited as 
 an authority for reading affidavits on behalf of the plain- 
 tiff to contradict those statements in the answer. But 
 Lord Langdale, M. R., refused to hear them, observing 
 that no one ever doubted that affidavits are inadmissible, 
 when the defendant distinctly states his belief. His Lord- 
 ship referred to his dictum in Ord v. While, observing that 
 he had not decided the point, and neither recalling nor re- 
 asserting the opinion that he had there expressed. 
 
 The case of Edwards v. Jones (r) seems to have settled 
 
 (m) Schneider v. Lizardi, 9 Beav. (/)) 12 Sim. 47. 
 
 461. (g) 5 Beav. 373. 
 
 (n) 5 Jurist, 1031. (r) 13 Sim. 632 ; 1 Phil. 501. 
 (o) 3 Beav. 357.
 
 I(l2 
 
 THE PRACTICE IN MATTERS 
 
 [part III. 
 
 the point, although not upon an injunction motion. In 
 that case, on a motion for a receiver, among other things, 
 an affidavit was tendered by the plaintiff to prove the death 
 of a particular person (the period of whose death was very 
 material), the answer ignoring the fact of the alleged death. 
 It was contended, on the authority of Ord v. White and 
 other cases, that the affidavit was admissible; but the Vice- 
 Chancellor of England held the affidavit inadmissible, and, 
 on appeal, Lord Lyndhurst, C, affirmed the decision. "An 
 affidavit," said his Lordship, " was offered to prove the fact 
 that Howell Powell (the person whose death it was mate- 
 rial to ascertain) was alive at the time of the death of the 
 intestate. Now, where the question at issue is not the 
 existence of a document, but a fact, I think that an afii- 
 davit cannot be admitted to prove it in an interlocutory 
 application like the present, though the answer neither 
 admits nor denies it. There is an apparent discrepancy 
 between the authorities on the subject, but I think that is 
 the fair result of them (5)." 
 
 Section 2. 
 Of Dissolving Special Injunctions. 
 
 Whether, when the Bill is demur- 
 rahle, the Defendant may elect to 
 move to dissolve. 
 
 Of Affidavits. 
 (a) What limit as tofiling. 
 
 (b) When Affidavits may he read 
 and when not against the 
 Answer. 
 3. Of some of sevei-al Defendants mov- 
 
 in" to dissolve. 
 
 1. Where a plaintiff obtains an injunction upon affida- 
 vits, the defendant, although he might try the question by 
 
 (s) It may be proper here to re- 
 mind the reader, that if an injunction 
 is to be obtained or sustained on the 
 merits confessed by the answer, the 
 Court does not require for that pur- 
 pose the degree of certainty which 
 would entitle the plaintiff to a decree. 
 
 It is sufficient if upon the answer a 
 case of doubt appears, requiring inves- 
 tigation. See p. 12 of the Treatise, and 
 Glasicott V. Lo7ig, 3 Myl. dt Cr, 451 ; 
 Willincsk V. Bentinck, 2 Hare, 1, 
 see p. 11 ; Ord v. White, 3 Beav. 357.
 
 CHAP, v.] OF INJUNCTION. 103 
 
 demurrer, is not under any obligation to do so, if he thinks 
 that by moving to dissolve upon affidavits, he can ])lace 
 his case better before the Court (5). 
 
 The same point in effect arose in Hudson v. 3Iaddi- 
 son{t), where it was contended that an objection which 
 can be taken by demurrer or at the hearing cannot be 
 taken on a motion to dissolve an injunction. The Court 
 thought it clear that it may. However, a motion to dis- 
 solve on the coming in of the answer will not be permitted 
 to proceed pending a motion for production of documents, 
 because the contents of the documents are part of the dis- 
 covery which the plaintiff' is entitled to extract from the 
 defendant (u). 
 
 2. On the subject of reading aflSdavits, several important 
 cases have been decided since the publication of the ori- 
 ginal Treatise. 
 
 (a). First, as to the limit to the filing of affidavits and 
 counter-affidavits. 
 
 Generally it may be said that the Court will at any 
 time, before a motion is actually heard, postpone it, to 
 allow of further affidavits, if the respondents desire it. Of 
 course the party moving, can always save his motion if he 
 wishes to file further affidavits. But if a respondent allows 
 a motion to be partly heard, he will not be allowed to read 
 affidavits tiled afterwards, nor will the Court postpone the 
 further hearing of the motion to allow such affidavits to 
 be answered. The motion once fairly opened must be 
 heard through, on the affidavits then before the Court (.r). 
 To this principle must be referred two cases, in which it 
 has been decided, that if a defendant moves upon his answer 
 to dissolve, he cannot read as part of his case affidavits 
 filed after the answer; because, it was said by the Court, 
 
 (s) Barnesley Ca7ial Company v. (u) Storer v. Jackson, \2 Sim. 503. 
 
 Ticibill,! Beav. 19. (.r) Electric Telegraph Company v. 
 
 (t) 12 Sim. 416. Nott, 11 Jurist, 273.
 
 104 THE PRACTICE IN MATTERS [PART III. 
 
 the plaintiff could not reply to such affidavits (?/). For 
 if the defendant filed after his answer affidavits before 
 the motion, giving due notice, there seems no reason why 
 he should not read his affidavits as well as his answer, 
 treating of course his answer as an affidavit (z). 
 
 (b). Where a notice of motion was given before answer, 
 and affidavits filed in support of it, and the motion stood 
 over at the request of the defendant, that he might put in 
 his answer, and after he had done so, the plaintiff filed 
 further affidavits in respect of title, contradicting the 
 answer : it was held, that under those circumstances the 
 answer must be treated as an affidavit, and consequently 
 the further affidavits were admissible (a). But if a motion 
 for a special injunction is made after the answer has come 
 in (the motion not having stood over for the defendant's 
 convenience, and that he may put his answer in), and no 
 affidavits were filed before the answer, affidavits filed after 
 the answer cannot be read in support of the motion even 
 as to matters not connected with title ; and that, irrespec- 
 tively of the question whether the notice was given before 
 the answers were put in, or afterwards (b) ; still more if the 
 motion stood over for the plaintiff's convenience (c). The 
 judgment in Manser v. Jenner, and the learned reporter's 
 notes, contain nearly all the learning upon this point. 
 
 In Gardner v. 3I'Cutcheon{d), where, on a motion for 
 an injunction to restrain a partner from getting partner- 
 ship property into his possession, affidavits had been filed 
 in support of the application, and then the defendant put 
 in his answer, and affidavits were subsequently filed on 
 both sides, it was held that the answer must be treated as 
 
 {y) Barxuise v. Brooks, 7 Jurist, See also Maden v. Veiers, 5 Beav. 
 
 364 ; and Corporation of Lherpool v. 503. 
 
 Morris, 11 Jurist, 509. {h) Manser v. Jenner, 2 Hare, 
 
 (j) Gardener v. M'Cutcheon, 4 600; L/oi/d v. Jeii/cins, 4 Beav. 230. 
 
 Beav. 534. (c) Woodin v. Field, 15 Sim. 307. 
 
 (o) Gibson v. Nicol, 6 Beav. 422. (d ) 4 Beav. 534.
 
 CHAP. V.J OF INJUNCTION. 105 
 
 an affidavit, and the plaintiff's affidavits might be read 
 against it. This case was referred to in the very recent 
 case of The Attorney- General v. Strange {e), where affi- 
 davits had been filed with the bill, and an ex parte injunc- 
 tion obtained. Then the answer was put in, and then 
 affidavits were jiled on both sides, and then a motion was 
 made to dissolve. The defendants, instead of reading, 
 formally withdrew their affidavits ; and on the plaintiffs ten- 
 dering theirs filed after the answer, objected to their being 
 read. The case of Gardner v. M^ Cutcheon was cited, but 
 the Court distinguished the case before it, on the ground 
 that in Gardner v. ]\P Cutcheon the defendant must have 
 read his affidavits, whereas here the defendants had with- 
 drawn theirs. The point did not call however for actual 
 decision, as the plaintiffs' affidavits were rejected on other 
 grounds. 
 
 Finally, in a very recent case, it was held, following 
 Norway v. Rowe{f), that even where the plaintiff's affi- 
 davits are filed before the answer, if the motion is not 
 made till after the answer has been put in, the affidavits 
 cannot be read against the answer on matter of title (^). 
 And here must be noticed another recent case(/<) calcu- 
 lated to mislead, as it would appear from the report, that 
 affidavits were read against the answer on a matter of title, 
 on a motion made after answer. The fact was, as I have 
 been informed by counsel engaged in the case, that the 
 motion had stood over for the convenience of the defend- 
 
 (e) V. C. K. Bruce, December, pears clearly that the objection was 
 
 1848, MS, taken to affidavits being read on a 
 
 {f) 19 Ves. 143. question of t(t/e, the contention on the 
 
 {g) Roche V. Matthews, 12 Jurist, plaintiff's part being that they might 
 
 643. The report is not perfectly clear be read, even on that question, if filed 
 
 as to whether the affidavits were ten- before the answer. The affidavits 
 
 dered on matter of title only, or whe- were, as mentioned in the text, re- 
 
 ther they were also tendered and re- jected. 
 
 jected as to matter of_/'ac<. The writer (/i) Commissioners of Greenwich 
 
 has examined the registrar's minute- Hospital v. Blackett, 12 Jurist, 151. 
 book of the day, and from that it ap-
 
 106 THE PRACTICE IN MATTERS OF INJUNCTION. [PART III. 
 
 ant, that he might put in his answer, so that the answer 
 was treated as an affidavit, on the principle o^ Gardener 
 V. M'Cutcheo7i. The defendants appealed, and the matter 
 was compromised before the appeal was heard. 
 
 It nmst not be forgotten, that an injunction obtained ex 
 parte must stand or fall by the substance of the statements 
 of the bill on which it was obtained. It follows, that affi- 
 davits cannot be read in support of the injunction, to prove 
 facts stated by amendment, tending to strengthen the right 
 to the injunction (i). 
 
 3. It has been doubted whether, where a special injunc- 
 tion has been granted against several defendants, one of 
 them can move to dissolve without bringing the others 
 before the Court. The ground of the doubt is, that if the 
 defendant moving should succeed, he materially changes 
 the position of the other defendants. The Court, however, 
 doubted at the same time whether, if present, the defend- 
 ants not moving to dissolve, could oppose the motion (k). 
 The point was not decided. 
 
 (i) Attorney-General V. Strange, 13 (k) Thompson v. Geary, 5 Beav. 
 
 Jurist, 110. 131.
 
 INDEX. 
 
 The references to the Sujiplement are disthiguiihed by the word Sup, prefixed 
 to the P'igiiig- 
 
 A. 
 
 Abridgement, bona fide, of a h- 
 
 teraiy work, not restrained, 199. 
 
 what constitutes bond fide abridg- 
 ment, id. ; Sh}>. 36. 
 
 what a colourable one, 200; Sup.^Q. 
 
 ACCOUNT, equity will interfere against 
 proceedings at law, where a com- 
 plicated account is necessary, to 
 ascertain the claims of the parties, 
 74. 
 
 not where mere cross demands, Sup. 
 10. 
 
 as to mere complexity, Sup, 11. 
 
 if bill alleges unsettled account, that 
 prevents demurrer, 75. 
 
 when bill for an account of waste 
 without an injunction will lie, 164 
 et seq, 
 
 result of the authorities on this point, 
 167; and Sup, 10, 11 etseq, 
 
 ACCOUNTANT, when restrained from 
 disclosing information obtained in 
 his employment as accountant, 
 269. 
 
 ACQUIESCENCE, when party stands 
 by and fraudulently permits ano- 
 ther to deal with his property, as 
 for instance to commit waste, 
 equity will relieve against pro- 
 ceedings by the party so fraudu- 
 lently acquiescing, 35 ; Sup, 4. 
 
 same doctrine, especially if defend- 
 ant has been allowed to expend 
 money on the premises, 190. 
 
 must however be fraudulent, to de- 
 prive a parly of the right to pro- 
 ceed in respect of his legal rights, 
 38. 
 
 where creditor allows executor of his 
 debtor to deal with a lease as his 
 own, 36. 
 
 no acquiescence by expectant heir of 
 any avail while he is under the 
 original pressure, 16. 
 
 what sufficient on demurrer, Sup. 5. 
 
 what on motion, id, 
 
 ACT OF PARLIAMENT, injunction 
 where unfair advantage would be 
 given by the powers of an Act of 
 Parliament, 71. 
 
 principle of Act for empowering a 
 company to carry a public work 
 into effect, 285. 
 
 doctrine of equity with regard to, 
 286 el seq. 
 
 ACTING — See Dramatic Representa- 
 tion. 
 
 ADDITIONS, bond fide, to literary work, 
 entitled to protection by injunc- 
 tion, 200. 
 
 ADMINISTRATION, where, after ad- 
 ministration suit instituted, exe- 
 cutor restrained from bringing 
 action, Sup. 9 — see Creditor. 
 
 ADMIRALTY COURT, equity has ju- 
 risdiction to relieve by injunction 
 against proceedings in, 97, 98. 
 
 ADVOWSON, where injunction granted 
 to restrain presentation, 277 ; Sup, 
 67. 
 
 AFFIDAVITS. Court will not interfere 
 against nuisance on conflicting affi- 
 davits, where title not established, 
 238. 
 
 not necessary in interpleader suit to 
 support motion for injunction by 
 atVidavit of facts, 324. 
 
 but there must be affidavit of no col- 
 lusion, 325. 
 
 form of, in support of application to 
 extend the common injunction, 
 377. 
 
 when it may be filed, 378.
 
 108 
 
 INDEX. 
 
 AFFWAVnS— continued. 
 
 what requisite on motion in notice to 
 restrain infiingemeiit of patent, 
 226 ; Sup. 45. 
 
 as to reading:, against answer, on 
 motion to dissolve injunction stay- 
 ing; proceL'dings at law, 424 ; Sup. 
 101. 
 
 never read to contradict answer, 424. 
 
 but may to substantiaie written in- 
 struments neither admitted nor de- 
 nied, 425. 
 
 but not to establish facts neither ad- 
 mitted nor denied, id.; Sup. 101, 
 
 motioQ may be made on, before an- 
 swer, to dissolve special injunction, 
 428. 
 
 may be read against answer in cases 
 of waste and analogous cases, 429. 
 
 as to acts of waste, id. 
 
 but not as to title, id. 
 
 nor in cases of negociatioa of bills, 
 id. 
 
 distinction as to moving after answer 
 for injunction, and moving after 
 answer to dissolve injunction, 430. 
 
 not admitted as to facts, wliich indi- 
 rectly artect title, 431. 
 
 answei' must be lull answer, id. 
 
 if not full, treated as affidavit, and 
 affidavits allowed to be read against 
 it, id. 
 
 when notice of motion to dissolve 
 stands over for defendant to put 
 in answer. Sup. 104. See more 
 concerning affidavits. Sup. 104 
 et ieq. 
 
 AGREEMENT, where obtained on frau- 
 dulent representation, proceedings 
 under, will be enjoined, 4. 
 
 entered into in stale of intoxication, 
 19. 
 
 to trade contrary to public policy, 30. 
 
 party holding under agreement for a 
 lease may obtain injunction to 
 restrain ejectment, 49. 
 
 where Court will not restrain land- 
 lord, or will put the tenant on 
 terms, id. 
 
 whether Court will interfere by in- 
 junction in support of, unless it can 
 compel performance of the whole 
 agreement, 256; Sup. 61 et seq. 
 
 equity restrains acts inconsistent with 
 giving full eflTect to an agreement, 
 273. 
 
 a fortiori if there be an express cove- 
 nant, id. 
 effect of party entitled to benefit of 
 determination of a contract doing 
 
 AGREEMENT— continued. 
 
 acts inconsistent with such deter- 
 mination, 275. 
 where partners have departed from 
 
 terms of partnership acts, id. 
 See Specific Performance. 
 ALTERATION of property— SeeWASTE, 
 
 VI. 
 AMENDING BILL— See Practice, I. 
 ANCIENT LIGHTS, jurisdiction to re- 
 strain darkening, 245. 
 does not necessarily exist because 
 
 action will lie, id. 
 what the foundation of the jurisdic- 
 tion, iff. 
 position of building not material, id. 
 diminution of value no ground for 
 
 equitable interference, id. 
 what the principle is, id. 
 lights must be ancient lights, 246. 
 or there must be some agreement, id. 
 ANSWER, distinction between what 
 equity confessed being requisite to 
 sustain injunction, and what to 
 sustain decree, 12 ; Sup. 102. 
 See Practice. 
 APPEARANCE— See Practice, VL 
 ASSIGNEE, in bankruptcy, not restrain- 
 ed at suit of general cieditor from 
 proceeding. Sup. 14. 
 ASSIGNMENT of copyright, how to 
 
 be attested. Sup. 33. 
 ATTORNEY -GENERAL should be 
 party to a suit to restrain public 
 nuisance, 240. 
 but need not, if it is private as well 
 as public nuisance, id, 
 ATTORNEY AND CLIENT— See So- 
 licitor. 
 AWARD, restraining proceedings under, 
 123. 
 where reference not under stat. 9 & 
 40 Will. 3, c. 15, equity will in- 
 terfere, id, 
 secus when reference under the sta- 
 tute, id. 
 whether equity interferes when the 
 bill h:is been filed before the sub- 
 mission is made a rule of a Court 
 of law, 123, 124. 
 made rule of Court, is comencement 
 of proceedings at law, 402. 
 
 B. 
 
 BAIL— See Practice, II.
 
 INDEX. 
 
 109 
 
 BANK OF ENGLAND, injunction re- 
 fused lo protect Bank against 
 action by executors, for relusing 
 to permit transfer of stock, 122. 
 
 what course pursued wheie action 
 brought against liie Bank by one 
 of two parties claiming tlie same 
 fund, 327. 
 
 not bound lo look beyond the legal 
 title lo stock, 335. 
 
 cannot restrain executor, where no 
 specific bequest, fiom selling or 
 transferring, 336. 
 
 nor where doubtful whether a be- 
 quest of stock is specific or not, id. 
 
 may be made parties lo a suit to stay 
 transfer of slock, id. 
 
 but need not, id. 
 
 what course to be pursued, id. 
 
 BANKERS, injunction against, bringing 
 action on foreign judgment, 333. 
 
 BANKRUPT-BANKRUPTCY, when 
 
 bankrupt restrained from bringing 
 action against his assignees, 306. 
 
 if bankrupt submrts under protest, 
 he will not be restrained from try- 
 ing validity of commission, id. 
 
 will be restrained from repeatedly 
 and vexatiously trying it, id. 
 
 but single trial does not amount lo 
 vexation, 307. 
 
 where assignees restrained from sell- 
 ing bankrupt's property, 306, 307. 
 
 whether application for injunciion 
 should be by bill or by petition 
 formerly doul>tful, 307 et seq, 
 
 settled practice now to pioceed by 
 petition, where application is in 
 the bankruptcy, 309. 
 
 whether in suit against assignees, 
 bankrupt may be made a party to 
 obtain discovery, id. 
 
 where bankrupt may file a bill for 
 discovery and injunction in mean- 
 time, 310. 
 
 ex parte injunction granted to solvent 
 partners to restrain assignees from 
 selling joint eflecls, id. 
 
 Court will not in geneial interfere 
 to restrain assignees t'rom selling 
 bankrupt's property, 311. 
 
 creditor restrained from bringing ac- 
 tion on bill where he has proved 
 on it, i(/. 
 
 where person holdingjoint and seve- 
 ral security against partnership 
 will be restrained from bringing 
 
 BANKRUPT— rr)n(i»i»e(;. 
 
 joint action, one partner having 
 become bankrupt, 312. 
 
 where landlord will be restrained 
 from distraining on bankrupt te- 
 nant, 312, 313. 
 
 injunction granted to stay insertion 
 of bankruptcy in Gazette, 313. 
 
 Court will not stay advertisement 
 after adjudication, id. 
 
 ex parte injunction to stay London 
 fiat improperly struck refused, id. 
 
 where Court will interfere against 
 legal title of assignees as such, 
 id, 314. 
 
 where bankrupt sequestrator will be 
 restrained from acting under the 
 sequestration, 314. 
 
 effect of injunction to restrain pro- 
 ceediogs in Lord Mayor's Court 
 against debtor who becomes bank- 
 rupt, id .315. 
 
 where commissioners of bankruptcy 
 not restrained from executing duty 
 of examining bankrupt, 315. 
 
 injunction to restiain action by as- 
 signees, where their claim to lease- 
 hold doubtful, 316. 
 
 no jurisdiction to restrain assignees 
 from proceeding at suit of general 
 creditor. Sup. 14. 
 
 whether bankruptcy of plaintiff is an 
 abatement of a suit, 423. 
 
 course as to dissolution of injunction 
 where plaintiff becomes bankrupt 
 or insolvent, 423, 424. 
 
 as to restraining a paity from pro- 
 ceeding under Bankruptcy or In- 
 solvency Acts against another, 
 Slip. 56. 
 
 jurisdiction of Court of Review to 
 restrain proceeding at law, Siip.74. 
 
 BENF.FICICS, jurisdicton to interfere 
 between incumbiancers on eccle- 
 siastical benefices, 331, 332. 
 
 to restrain presentation to, 277 ; Sup. 
 67. 
 BILLS, party proceeding on bills ob- 
 tained by fraud, 2 ; Sup. 12. 
 
 where holder had no knowledge of 
 illegality, 3. 
 
 dishonouied on the face of it, 3. 
 
 given in respect of t ambling trans- 
 actions, 4. 
 
 of exchange, where it is alleged that 
 it was given for a gambling trans- 
 action, 5. 
 
 where defendant had no knowledge. 
 5, 7.
 
 no 
 
 INDEX. 
 
 BILLS — continued. 
 
 wlien money lent for gaming in fo- 
 reign country, Sup. 2. 
 
 where illegality of, appears at law, 5. 
 
 given for gambling transactions not 
 now void ; but held to have been 
 given for an illegal considera- 
 tion, 6. 
 
 where taken in the name of a firm 
 by partner expressly forbidden to 
 diaw in the name of the firm, id. 
 
 efftct of iiolder not proving that he 
 had no notice of such bill not 
 being the bi 1 of the firm, id. 
 
 made on the face of them to an exe- 
 cutor, 6. 
 
 BISHOP, when restrained from insti- 
 tuting, collatmg, or presenting, 
 277; Sup. 67 
 BOND, party proceeding on, obtained by 
 fraud, 2. 
 
 pro turpi causa, 10. 
 
 bad on the face of it, 10, and see 
 Jurisdiction, 
 
 when ordered to be delivered up, 10. 
 
 bonds given for obtaining public ap- 
 pointments, 22. 
 
 for fraudulent consideration gene- 
 rally, 22, 23. 
 
 bonds of resignation, 25. 
 
 East India Company's bond ob- 
 tained by fraud. Sup. 2. 
 
 where given to do a thing on a future 
 day, and it is not done, equity 
 will, under circumstances, relieve, 
 79, 80, 
 
 relief against, where it contained an 
 intricate condition, and lime asked 
 on that account, 80. 
 
 BOOK, what under Copyright Act, Sup. 
 32 — See Copyhigiit. 
 
 BREACH OF GOV KNANT-See Co- 
 venant; Notice. 
 
 BREACH OF INJUNCTION — See 
 Practice, II. 
 
 BROCAGE— See Marriage. 
 
 C. 
 
 CALENDARS, doclrine of equity as to 
 copyright in, 201. 
 what evidence of piracy in respect 
 of, 202. 
 
 CATALOGUE- See CopvRroHr. 
 
 COMMISSION TO EXAMINE WIT- 
 
 N ESSES, as to extending com- 
 mon injunction, where the object 
 
 is to have a commission to exa- 
 mine witnesses, 385. 
 
 commission cannot be obtained be- 
 fore default, 386. 
 
 suggestion as to effect on, of orders 
 of 1833, id. 
 
 COMMISSIONERS of sewers, jurisdic- 
 tion of equity to interfere against 
 their acts, 247. 
 
 COMPANY, East India Company's 
 bond obtained by fraud, 6up. 2. 
 See Public Company. 
 
 COMPOSITION with creditors— See 
 Deed; Creditors. 
 
 CONVEYANCE, to give party colour- 
 able qualification, 25. 
 
 COPYHOLD— See Lord of Manor- 
 Waste, XIII. 
 
 COPYRIGHT, ground of jurisdiction to 
 
 interfere in copyright, 191. 
 Court acts as ancillary to a legal 
 
 right. 192. 
 jurisdiction not taken away because 
 
 act of parliament gives special re- 
 medy, i(/. 
 plaintiff must show prima /acie legal 
 
 title, id. 
 or equity to have one, Sup. 32. 
 how done by author, 192. 
 how by assignee, id, 
 assignment under 8 Ann. c. 19, 
 
 must be attested by two witnesses, 
 
 Sup. 33. 
 if no prima facie title shown. Court 
 
 will not interfere till right tried at 
 
 law, 193. 
 parol licence by author may so far 
 
 give right as to prevent injunction 
 
 at the suit of the author, id. 
 Court will not restrain piracy of a 
 
 work against morality or public 
 
 policy, id. 
 nor of work throwing doubt on the 
 
 Christian religion, 194. 
 when Court will restrain publication 
 
 of a work as that of a person who 
 
 is abroad, 195. 
 principle of this jurisdiction, Sup. 34. 
 Court will interfere in favour of a 
 
 clear equitable title, even though 
 
 legal title not complete, 196. 
 effect of quantity in questions of 
 
 piracy, id, 
 what constitutes a fair use of a pre- 
 ceding publication, 197.
 
 INDEX. 
 
 Ill 
 
 COPYRIGHT— con<(jii,ef/. 
 
 vvlietlier taking cases at fall length 
 from volumes of reports, and add- 
 \ng notes, tlie laliei beinj> the 
 most important part of the work, 
 is piracy, 198. 
 
 equity will not interfere in such a 
 case till right tried at law, espe- 
 cially if there has been delay, id. 
 
 quantity no direct test of piracy, id. ; 
 Sup. 35, 36. 
 
 but may be of importance as an 
 element, ?(/. 
 
 if there is injuria, plainlifT is to judge 
 of damnum. Sup. 36. 
 
 bo7id Jide abridgement of a larger 
 work not restrained, 199. 
 
 what constitutes a bond Jide abridge- 
 ment, id. ; Sup. 36. 
 
 what a colourable abridgement, 200. 
 
 bond Jide additions entitled to protec- 
 tion by injunction, id. 
 
 efTect of the authoi himself publish- 
 ing extracts of his work, id. 
 
 piracy of a play not published re- 
 strained, id. 
 
 doctrine as to copyright in publica- 
 tions of the class of maps, road 
 books, calendars, and similar com- 
 pilations, 201. 
 
 extent to which it is protected in 
 equity, id. 
 
 what is evidence of piracy in such 
 works, 202. 
 
 copyright in accounts of natural cu- 
 riosities, 203. 
 
 when one person has published such 
 a woik, another person will be re- 
 strained from putting forth another 
 work in such manner as to give an 
 impression of its being liie work of 
 the first author, id. 
 
 usual order made to restrain piracy as 
 between works of compilation of a 
 voluminous character, 204, 205. 
 
 course pursued by the Couri in cases 
 of alleged piracy of such works, 
 205. 
 
 when the Court will determine the 
 question by inspection, id. 
 
 when it will be referred to the Mas- 
 ter, id. 
 
 jurisdiction of equity to restrain the 
 publication of letters, 206. 
 
 piratical publication of letters writ- 
 ten hit plaintiff restrained, 207. 
 
 secus as to letters written to him, id. 
 
 suflering a parly to keep letters, no 
 authoiity to publish them, id. 
 
 COPYRlGHT-continued. 
 
 though copyright may subsist in 
 familiar letters, every jirivaie let- 
 ter not necessarily subject of copy- 
 right, 207. ^^ 
 
 Couit only interferes on the ground 
 of right of piopertii, 203. 
 
 result of the authorities, 208, 209, 
 
 injunction granted to restrain publi- 
 cation of unpublished manuscripts, 
 209. 
 
 of catalogue of unpublished etchings 
 and other works, Sup. 38, 39. 
 
 no copyright independently of the 
 statute, 209, 210. 
 
 restraining the publication of trials 
 before the House of Lords, 210. 
 
 of cases depending in the 
 
 Courts of law, id. 
 
 where party complaining has insulh- 
 cient interest, 210, 211. 
 
 what is not sufficient interest, id. 
 
 injunction granted formerly to re- 
 strain publication of wiiilen lec- 
 tures, 212. 
 
 so where merely oral, when a pre- 
 sumption would arise that notes 
 could only have been taken in 
 breach of implied contract, id. 
 
 how question affected by 5 & 6 
 Will. 4, cap. 65, id. 
 
 copyright in translations, 213. 
 
 not in copies of specifications of pa- 
 tents taken from the Rolls, id. 
 
 but subsists in reduced copies of 
 drawings annexed to a specifica- 
 tion, id. 
 
 whether it subsists in copies of such 
 drawings not reduced, 214. 
 
 in designs, or engravings of things in 
 nature, id. 
 
 whether name of proprietor, and date 
 of publication, must be engraved. 
 id. 
 
 injunction refused to restrain exhi- 
 bition as a dioiama of a copy of 
 another's painting, 214, 215. 
 
 injunction not granted to lestrain 
 copying engravings imported from 
 abroad, 215. 
 
 not to protect foreign copyright, id. 
 
 whether foreigner can maintain copy- 
 right for a work fiist published 
 here, 216; Sup. 39, 40. 
 
 effect of cotempoianeous publication 
 abroad. Sup. 40. 
 
 no copyright where there has been 
 prior publication abroad, id. 
 
 English subject purchasing copy
 
 112 
 
 INDEX. 
 
 COPYRIGHT— cpntinned. 
 
 from foreign author, and first pub- 
 lishing it here, may have copy- 
 right, 216. 
 
 whether converting airs of an opera 
 into waltzes and quadrilles a bortd 
 fide alteration, 217. 
 
 international copyright, id. 
 
 when not necessary, on a motion to 
 restrain piracy of prints, to pro- 
 duce the prints, 218. 
 
 Court adopting the certificate of a 
 Court of law, that there is no 
 copyright, does not put an end to 
 the case, 219. 
 
 provisions of copyright act, 5 & 6 
 Vict. c. 45. .Sup. 32. 
 
 book, definition of. Id. 
 
 copyright, definition of, id. 
 
 dramatic piece, id. 
 
 copyright in periodical works, Suf. 
 33. 
 
 how created, id. 
 
 effect of publisher employing editor 
 and editor paying writer. Sup. 33, 
 34. 
 
 entry to be made at Stationers' Hall, 
 id. 
 
 copyright in designs. Sup. 39. 
 
 injunction to restrain applying de- 
 sign though no selling, id. 
 
 alien friend may have copyright in 
 work composed abroad if published 
 first in this country. Sup. 40. 
 
 the copyright not avoided by cotem- 
 poraneous publication abroad, id. 
 
 copyright in dramatic music, id. 
 
 COUNSEL, whether Court will interfere 
 to restrain the retainer of parti- 
 cular counsel, 270,271. 
 
 COURTS, in what Courts proceedings 
 will be restrained, 101 — 104. 
 
 where equity will not inteifere to 
 slay proceedings in another Court, 
 131. 
 
 as to restraining publication of cases 
 depending in Courts of law, 210. 
 
 And see Jukisdictiom. 
 COVENANTS, where mutual covenants 
 are absolute, equity will not inter- 
 fere, 72. 
 
 where held a contract, 153. 
 
 and where a penalty, id. 
 
 where there is a covenant to manage 
 in a husbandlike manner, injunc- 
 tion will be granted against con- 
 verting plough land into pasture, 
 154. 
 
 COVENANTS— coNfm'i<?d. 
 
 construction of, to deliver up pre- 
 mises, if wanted for huilditig, 276. 
 
 that if lessor is minded to build, 
 
 premises should be given up, id. 
 
 breach of, in lease, Sup. 13. 
 
 injunction to restrain breach of, 
 though not running with the land, 
 Sup. 60. 
 
 oppressive covenants. Sup 61. 
 
 bv solicitor's clerk not to practise, 
 ' 268 ; Slip. 66, 67. 
 
 CREDITORS, relief against deeds en- 
 tered into with particular creditors, 
 in fraud of a general composition, 
 2 1 ; Sup. 3. 
 wheie creditor allows executor of 
 his debtor to deal with a lease as 
 his own, he will be restrained 
 from preventing the creditors of 
 the executor from taking such 
 lease in execution, 36. 
 effect of creditor, who has a title 
 against a surety, dealing with the 
 principal debtor, so as to vary the 
 position of the surety, 38, 39. 
 
 where creditor gives time to a surely, 
 39. 
 
 rule between creditor and surety ap- 
 plies, though surety knows that 
 time has been given to the prin- 
 cipal, 41. 
 
 but creditor cannot act, and then 
 withdraw his act, id. 
 
 if surety makes fresh promise, he be- 
 comes liable, id. 
 
 surety cannot, by his own act, dis- 
 charge himself, id. 
 
 and the case is not altered by the 
 terms of the bond being indefinite 
 as to duration, 42- 
 
 injunction not maintained to protect 
 surety, merely because a further 
 sum has been lent to the debtor, 43. 
 
 wlieihcr a creditor having a personal 
 remedy, and also a fund provided 
 out of the debtor's estate, must 
 first apply to the latter, 57. 
 
 no general rule on this subject, 61. 
 
 reference of such cases to the prin- 
 ciple of marshalling, id. 
 
 injunction to stay proceedings by 
 creditor, where there is a decree in 
 a creditors' suit, 108. 
 
 but not if there is no decree, id.; 
 Sup. 15, 16. 
 
 nor if there is only a reference under 
 orders of May, 1839, id.
 
 INDEX. 
 
 113 
 
 CREDITORS— cnnthiiied. 
 
 principle that a jiulgment is a decree 
 in favour of all creditors, 109. 
 
 injunction in creditors' suit, who to 
 be obtained by, id. 
 
 may be had on motion, id. 
 
 costs in, 110, Slip. 17. 
 
 executor must state assets, 1 10. 
 
 whether material that the decrees 
 should be before the judgment at 
 law, id. 
 
 effect of the nature of the suit in 
 equity, 1 13. 
 
 if suit by one creditor on behalf of 
 all otiiers, injunction may be had 
 after decree lor account, id. 
 
 but if suit by creditor on his own be- 
 half merely, injunction not granted 
 till after final decree, id. 
 
 effect of the kind of judgmental law, 
 113. 
 
 distinction where the judgment is 
 de bonis testatoris, and where it is 
 de bonis lestatotis et si non de pro- 
 priis, id. 
 
 examination of the above distinction, 
 1 13 e( seq. Slip. 17 e( seq. 
 
 result of tiie authorities on this point, 
 121, Slip. 20. 
 
 judgment creilitor cannot obtain in- 
 junction to restrain waste by heir 
 and administrator of debtor, unless 
 danger of debt being lost, 179. 
 
 under voluntary deed for payment of 
 creditors, a creditor cannot re- 
 strain trustees of a second deed 
 from acting under it, 255. 
 
 creditor restrained from bringing ac- 
 tion on a bill against assignees of 
 bankrupt, where he has proved on 
 it. 311. 
 
 CROSS Df:MANDS 
 
 Set-Off. 
 
 D. 
 
 See Account; 
 
 DEED, equity has jurisdiction to inter- 
 fere against, on the ground of ille- 
 gality, where the illegality appears 
 only by evidence dehors, 9, 10. 
 
 secus, where illegality apparent on 
 face of instrument itself, 9, 1 1. 
 
 when ordered to be delivered up and 
 when not. Sup. 2, 3. 
 
 statement of general doctrine on this 
 head, 11. 
 
 as to illegality of, Court does not 
 
 DEED — cantimied. 
 
 require certainty to induce it to 
 interfere, 12. 
 
 executed by married woman, under 
 circumstances of duress, relieved 
 against, 18. 
 
 executed while in a state of intoxica- 
 tion, relieved against, if any unfair 
 advantage taken of that circum- 
 stance, 19. 
 
 or where there has been contrivance 
 to induce the party to drink, id. 
 
 or if, on the face of the agreement, it 
 appears that there is a degree of 
 unfairness, id. 
 
 secus, if the sole ground is the mere 
 fact of intoxication, 20. 
 
 only when intoxication total. Sup. 3. 
 
 entered into with particular creditors, 
 in fraud of general composition 
 deed, 21, 
 
 separation deed between husband 
 and wife, 30. 
 
 when title deeds of mortgaged estate 
 so dealt with by mortgagee, that 
 mortgagor cannot obtain them on 
 paying mortgage money, injunc- 
 tion granted to restrain proceedings 
 by mortgagee, 68. 
 
 DELAY— See Lachfs. 
 
 DEMURRER does not lie to inter- 
 pleader bill, because some of the 
 parties out of the jurisdiction, 326. 
 And see Acquiescence; Pkactice, 
 VI. 
 
 DESIGNS, copyright in, of things in 
 
 nature, 214. 
 whether name of proprietor, and date 
 
 of publication, must be engraved, /rf. 
 copyright in designs for ornament or 
 
 use in manufactures, Sup. 39. 
 
 DESTRUCTION— See Trespass. 
 
 DEVASTAVIT, constructive, 6. 
 
 DEVISEE, cannot restrain waste by heir 
 at law disputing the will, 188. 
 neither it seems can heir restrain 
 devisee, who states will duly exe- 
 cuted, 188. 
 
 DISSOLVING — See Practice, IV. 
 and V. 
 
 DISTRAINING, where no ground for 
 tenant to stay landlord from dis- 
 traininu, 339. 
 
 I
 
 114 
 
 INDEX. 
 
 DISTRINGAS, Sup. 83. 
 restraining order, id. 
 
 DRAMATIC PIECE, what, under co- 
 
 f)yright act. Sup, 32. 
 to what extent protected, id., 40. 
 
 DRUNKENNESS — See iNTOxicATroN. 
 
 DURESS, jurisdiction to relieve in cases 
 of, undoubted, 330. 
 
 where it will not be exercised, id. 
 
 relief against deed executed by mar- 
 ried woman under duress, 18. 
 
 ECCLESIASTICAL CORPORA- 
 TIONS— See Waste, XIV. 
 
 ECCLESIASTICAL COURT, equity 
 will not in general inlerfere against 
 proceedings in, by prohibition, 97. 
 
 but will by injuncliou, 96, 97. 
 
 injunction to stay legatee from suing 
 in, 100. 
 
 EJECTMENT, when landlord restrained 
 from bringing ejectment against 
 tenant holding under agreement, 
 and when not, 49 et secj. 
 
 where doubt as lo contract for lease 
 between plaintiffand defendant, 50. 
 
 restrained in aid of specific perform- 
 ance where colour of right shown, 
 51. 
 
 party holding under agreement and 
 treating the land in a grossly un- 
 husbandlike manner, not entitled 
 to injunction against ejectment, 52. 
 
 where lessee of chaiity lands mixes 
 them with his own, he will be re- 
 strained from biinging ejectment 
 till it is ascertained which are the 
 charily lands, 71. 
 
 course for landlord when ejectment 
 brought against his tenant, 338. 
 
 landlord cannot have injunction to 
 stay execution in, if he has let ac- 
 tion go on for judgment, id, 
 
 when real question cannot be tried in 
 ejectment. Sup. 8. 
 
 ENGRAVINGS, copyright in, 214. 
 
 imported from abroad not protected 
 by injunction, 215. 
 
 EQUITY doubtful.— See Answer; In- 
 
 JUNCTION. 
 
 ETCHINGS, restraining publication of 
 catalogue of unpublished etchincrs. 
 Sup. 38, 39. 
 
 EXCEPTIONS. — See Practice, IV.; 
 Injunction. 
 
 EXECUTOR, will be restrained from 
 selling property when he sets up 
 claim to it as a gift, which is im- 
 peached by the bill, 178. 
 
 but not at suit of annuitant for his 
 protection as to future instalments, 
 id. 
 
 when restrained and when not. Sup. 
 9, 16, 
 
 waste by.— See Waste, XVI. 
 
 EXECUTION, where Court will restrain 
 execution, but not proceedings up 
 to judgment, 65. 
 
 EXPECTANT HEIR, protection of 
 equity to expectant heiis amounts 
 almost to incapacity to bind them- 
 selves, 16. 
 
 persons dealing with, must show that 
 the bargain was righteous, id. 
 
 no acquiescence or confirmation by, 
 of any avail while the original 
 pressure continues, id. 
 
 but protection of equity withdrawn, 
 if parent or person in loco parentis 
 cognisant of the transaction, id. 
 
 or if party in the position of expect- 
 ant heir, after repudiating the 
 transaction, acts on it so as lo 
 vary the situation of the other 
 party, id. 
 
 EXPECTATIONS, settled practice of 
 equity to interfere against securi- 
 ties founded on expectations, un- 
 less full value given, 15. 
 
 but purchaser at sale by auction not 
 bound to prove that full value 
 given, id. 
 
 unless sale so conducted as to make 
 it clear that it is not evidence of 
 fair market price, id, 
 
 nothing inequitable in agreement 
 between parties, having equally 
 expectations from a third party, to 
 divide whatever he shall leave 
 them, 14. 
 
 when instruments are founded on 
 expectation from third parties con- 
 cealed from them, 13. 
 
 EXTENDING IN.— See Practice, III. 
 
 F. 
 
 FIAT, injunction to restrain suing out, 40.
 
 INDEX 
 
 116 
 
 FOREIGNER, whether he can sustain 
 copyright for a work first pub- 
 lished here, 216 ; Sup. 39, 40. 
 foreign copyright not protected, 215. 
 
 FORFEITURE, equity relieves against, 
 sometimes, 16. 
 
 but there must be full compensation, 
 77. 
 
 what is meant by full compensation, 
 id. 
 
 when time desired to comply with 
 condition of a bond, on ground of 
 its being inliicate and insensible, 
 an injunction granted, 80. 
 
 whether equity will interfere against 
 wilful breach of condition, id. et 
 seq. 
 
 or against breach, not wilful, where 
 it cannot be asceitained with cer- 
 tainty what is compensation, id. et 
 seq. 
 
 principle resulting from the autho- 
 rities on this point, 88. 
 
 application of the principle as be- 
 tween lessor and lessee, 88, 89, 
 Sup. 1 1 . 
 
 relief against, when landlord a lu- 
 natic, 90. 
 
 under special circumstances relief 
 against, by neglect to repair, id. 
 
 where parly entitled to benefit of, 
 by his own conduct waives the 
 breach, 91. 
 
 not waiver where assignors take pos- 
 session and sublet, assignees hav- 
 ing abandoned possession, 91, 92. 
 
 nor is it waiver of covenant against 
 carrying on certain trades, if land- 
 lord permits some one, 92. 
 
 no relief against forfeiture of legal 
 title to a ship, where forms of ship 
 registry acts not complied with, 93. 
 
 FRAUD, party proceeding on bond or 
 bill obtained by, 2. 
 
 or promissory note, id. 
 
 when note indorsed after it is due, 
 jury Jo presume fraud on slight 
 circumstances, 3. 
 
 when agreement obtained by fraudu- 
 lent represetitation, proceedings 
 under it restrained, 4. 
 
 Court will open solicitor's bill, even 
 afterpayment, if there is fraud, 12. 
 
 not if only inaccuracy, id. 
 
 where instruments are founded on 
 expectations from third parties 
 concealed from them, 13. 
 
 FRAUD— fojitiHHpf/. 
 
 nothing ineciuilable in agreement be- 
 tween parties, having expectations 
 from thud parly, to divide what 
 he shall leave lliem, 14. 
 
 Court relieves against deeds entered 
 into willi p:irlicular creditors in 
 fraud of general composition deed, 
 21,Su,). 3. 
 
 where fraud in the parly from whom 
 a legal tille passes will prevent 
 him from obtaining an injunction, 
 33. 
 
 in effecting insurance, 34. 
 
 where a party stands by and fraudu- 
 lently permits another to deal with 
 his properly, as, for instance, to 
 commit waste, equily will relieve 
 against proceedings by the party 
 so fraudulently acquiescing, 35. 
 
 where a parly having title fraudu- 
 lently suffers another to grant 
 leases, 36. 
 
 effect of such acquiescence by a cre- 
 ditor, id. 
 
 where parties make false representa- 
 tions or conceal their claims to 
 assist in a fraud on third parlies, 
 equity will restrain them from en- 
 forcing their claims, 43. 
 
 rule applies although the claim is in 
 itself originally fair, 45. 
 
 in these cases theruleqia prior estm 
 tempore potior eil i« Jure applies, id. 
 
 Court interferes against fiaudulent 
 use of another's name or reputa- 
 tion, 230. 
 
 as where coach proprietors fraudu- 
 lently use the designation and 
 marks of others, 231. 
 
 but not against use of name of a 
 piofessional man. Sup. 34, 35. 
 
 fraudulent putting forth of literary 
 work. Sup. 37. 
 
 See Acquiescence. 
 
 G. 
 
 GAMING TRANSACTIONS, equity 
 has jurisdiction to relieve against 
 instruments given for, 4. 
 
 and to decree payment, id. 
 
 will not always interfere, id, 
 
 principle, that if plaintiff" wants dis- 
 covery, equity will restrain pro- 
 ceedings till the circumstances are 
 explained, id. 
 
 bills given in lespect of, id. 
 12
 
 116 
 
 INDEX. 
 
 GAMING TRANSACTIONS -cpnf. 
 
 when defendaut did not know the 
 
 money lent was for the purpose of 
 
 gaming, 5. 
 when money lent for, in foreign 
 
 country, Sup. 2. 
 not now void, but held to have been 
 
 given for an illegal consideration, 6. 
 
 GOODWILL, injunction refused to re- 
 strain party having sold goodwill 
 from commencing a similar busi- 
 ness, 234. 
 
 seats, if he holds out that he is re- 
 suming original business, id. 
 
 effect on title of plaintiff in such 
 cases, of his having himself de- 
 ceived the public, 236. 
 
 GOVERNMENT, body purporting to 
 be a foreign government, not no- 
 ticed as plaintiff, where not recog- 
 nised by this government, 331. 
 
 whether it can be noticed at all, id. 
 
 department of the executive of this 
 country may be restrained, id. 
 
 jurisdiction to interfere tniier con- 
 ventions between this and a foreign 
 country, id, 
 
 GUARDIAN, when restrained from 
 bringing action for balances al- 
 leged to be due, 269, 270. 
 
 H. 
 
 HEIR, injunction not sustainable by, 
 against devisee stating will duly 
 executed, 188. 
 not enjoined at suit of devisee, jrf. 
 And see Expectant Htm. 
 
 HUSBAND AND WIFE, of restraining 
 
 wife from proceeding on a deed of 
 
 separation, 30. 
 validity of separation deed, id. 
 husband restrained from meddling 
 
 with wife's separate estate, Su/i. 79. 
 husband restrained from proceeding 
 
 in Ecclesiastical Court for his 
 
 wife's legacy, 71. 
 
 I. 
 
 ILLEGAL INSTRUMENT, Court does 
 
 not require certainty of the ille- 
 gality to induce it to inteifere, 12. 
 
 IMPERTINENCE, referring bill for, 
 350. 
 in answer. — See Practice, IV. 
 
 INFANTS, jurisdiction over marriages of 
 infants, 330. 
 where infants entrapped into a mar- 
 riage injunction will be granted 
 to restrain the parties from holding 
 any communication pending pro- 
 ceedings in the Spiritual Court, 
 331. 
 
 INFLUENCE, instruments obtained un- 
 der undue, 1 8, Sup. 3. 
 
 voluntary gift obtained under, re- 
 lieved against, id. 
 
 so deed executed by married woman 
 under circumstances of duress, id, 
 
 INJUNCTION, party entitled to, if an- 
 swer admits a case proper for in- 
 vestigation, though not enough for 
 a decree, 12, Sup. 102. 
 
 parly entitled to, though defendant 
 undeitakes not to continue injury. 
 Slip. 22, 23. 
 
 who may move on behalf of receiver 
 to restrain waste, Sxp. 27. 
 
 mandatory, 260, et s'q. Sup. 64,65. 
 
 granted, alllioiigh final decree made 
 not noticing injunction, Sup. 82. 
 
 not granted to restrain use of the 
 name of professional man, Sup, 
 34, 35. 
 
 against fraudulent putting forth of 
 literary work. Sup. 39. 
 
 binds only in favour of plaintiff 
 named. Sup. 83. 
 
 restraining order, Sup. 83. 
 
 interim orders, what they are, Sup. 
 84. 
 
 on what terms granted, id. 
 
 on dissolving common injunction, 
 plaintiff not, strictly speaking, put 
 to refer answer. Sup. 99. 
 
 his light is to show exceptions for 
 
 cause, id. 
 See the several heads, and in parti- 
 cular PnAl,TICE. 
 
 INSOLVENCY, where parly contracts 
 for a lease and assigns his interest, 
 his insolvency no ground, under 
 circumslances, for the landlord to 
 refuse specific performance, 50. 
 
 course as to dissolution of an injunc- 
 tion where plaintiff becomes insol- 
 venl, 424. 
 
 as to restraining party from proceed- 
 ing against another under insol- 
 vency acts. Sup. 6. 
 
 INSPECTION, when Court will deter, 
 mine question of piracy by, 205.
 
 INDEX. 
 
 117 
 
 INSPECTION— continued. 
 
 where it will be referred to the mas- 
 ter, 205. 
 
 when ordered on motion for injunc- 
 tion to restrain infringement of 
 patent, Sup. 47 et ^eq. 
 
 inspection in cases of injunctions to 
 restiain working of mines. Sup. 52. 
 
 INSUFFICir^NCY OF ANSWER. 
 See Practice, I\^. 
 
 INSURANCE, fraud in effecting, 34. 
 discovery in respect of, id. 
 but no injunction, id. 
 delivering up of policy, id. 
 
 INTERIM ORDERS. See Injunc- 
 tion. 
 
 IlNfTERPLEADER, principle of inter- 
 pleader suit, 321. 
 
 injunction is granted where double 
 claims at law against party claim- 
 ing no interest, id. 
 
 not refused because there is but one 
 legal owner against whom plain- 
 tiff may have no defence, 322. 
 
 grantable to restrain pioceedings in 
 equity as well as at law, id. 
 
 where an injunction in interpleader 
 not granted, 323. 
 
 practice for plaintiff in interpleader 
 to apply at once for special in- 
 junction to stay all proceedings on 
 paying money into (Jourt, 324. 
 
 injunction in interpleader granted, 
 the trial coining on next day, id. 
 
 not necessary to support motion for in- 
 junction in, by affidavit of facts, id. 
 
 but there n:ust be affidavit of no col- 
 lusion, 325. 
 
 when bill tiled by officer of a com- 
 pany. Sup. 76. 
 
 formerly held that no injunction 
 could be granted till money paid 
 into Court, id. 
 
 and rule so at the present day, id. 
 
 if bill filed in respect of money on 
 which interest payable, bill must 
 offer to pay it. Sup. 76. 
 
 in general Court will restrain either 
 party from proceeding against 
 stakeholder, 326. 
 
 secus, vviiere point can be decided in 
 an action of trover, id. 
 
 interpleader bill not demurrable be- 
 cause some of the parties out of 
 the jurisdiction, id. 
 
 INTERPLK.KDER-continued. 
 
 what the course of practice under 
 
 such circumstances, 326. 
 what course where action brought 
 
 against the Bank by one of two 
 
 parties claiming same fund, 327. 
 generally tenant cannot sustain bill 
 
 of interpleader against landlord, id. 
 but if tenant admits title as landlord, 
 
 being ignorant of its being dis- 
 puted, he may nevertheless file bill 
 
 of interpleader, id. 
 tenant may file bill of interpleader 
 
 where mortgagor and mortgagee, 
 
 or tiustee and cestui que trust 
 
 claim rent, id, 
 or where double demand arises out 
 
 of act of landlord himself, id. 
 interpleader act at common law, id. 
 plaintiff in interpleader suit must use 
 
 due diligence to get in answer. 
 
 Sup. 75. 
 defendant answering, not entitled as 
 
 of course to dissolve injunction, 
 
 id. 
 what is proper course, id. 
 interpleader act does not apply where 
 
 question equitable. Sup. 76. 
 
 INTOXICATION, relief against deed 
 entered into in state of intoxica- 
 tion, if any unfair advantage taken, 
 19. 
 
 or wheie there has been contrivance 
 to induce the party to drink, id. 
 
 or if on the face of the agreement it 
 appears that there is a degree of 
 unfairness, 19. 
 
 secus, if the sole ground is intoxica- 
 tion, 20. 
 
 relief only wheie total intoxication. 
 Sup. 3. 
 
 secus, if intoxication partial, id. 
 
 IRREPARABLE MISCHIEF. — See 
 Nuisance; Tuespass. 
 
 JOINTRESS— See Waste. IV. 
 
 JURISDICTION, equity has, to enjoin 
 
 against proceeding at law on a 
 
 note, although relief might be had 
 
 at law, 3. 
 
 when illegality of a bill appears at 
 
 lavv, equity will not inteifeie, 5. 
 whether equity has jurisdiction to 
 withdraw from a jury a question 
 already the subject of an action, 8.
 
 118 
 
 INDEX. 
 
 JURISDICTION— fo««in»erf. 
 
 whether equity has, to restrain pro- 
 ceedings on a note overdue, be- 
 cause party may not be able to 
 recover on it at law, 9. 
 distinction that equity has jurisdic- 
 tion to interfere where the illega- 
 lity of an instrument appears only 
 by evidence dehors the instrument, 
 9, 10, Sup. 4. 
 when it will order instrument to be 
 
 delivered up, 10. 
 when not, Sup. 23. 
 not when the illegality appears on 
 
 the face of the instrument, id. 
 statement of the general doctrine on 
 
 this head, 11. 
 to justify interference of equity on 
 this point, there must be wrongful 
 possession of the instrument as 
 well as proof only (diunde of the 
 illegality, 12. 
 Court does not require certainty of 
 the illegality of an instrument, id. 
 semble, no jurisdiction to grant in- 
 junction against action on policy 
 of assurance, 34. 
 as to restraining party from proceed- 
 ing against another under the bank- 
 ruptcy or insolvency acts, 40, 
 Sup, 6. 
 equity relieves where party has good 
 matter of defence, but cannot use 
 if, owing to defective forms of pro- 
 cedure, 64. 
 where cross demand purely legal, 
 
 injunction refused, id. 
 so when title, if any, legal, Sup. 9. 
 Court will not exercise, merely on 
 
 ground of injustice, 65. 
 nor of hardship, 72. 
 nor where the matter has been dis- 
 cussed at law, and could be there 
 fully discussed, 66. 
 nor where there is a legal and equi- 
 table defence. Sup. 10. 
 it must appear that the parly has 
 used due diligence, and that the 
 Court of law cannot take full cog- 
 nisance of the whole case, 65. 
 Court will not restrain a party who 
 has not only the belter legal title 
 but also a good equity, 67. 
 equity will not interfere merely to 
 enable a party to get fresh wit- 
 nesses to prove his case at law, id. 
 secus, if new facts appear by the an- 
 swer itself, which the plaintiflf 
 
 JURISDICTION— coiiffniied. 
 
 might not be able to get at law, 
 67. 
 
 equity interferes on ground of com- 
 plicated account being necessary 
 to ascertain claim of parties, 74. 
 
 Court refuses to interfere by prohibi- 
 tion against proceedings in the ec- 
 clesiastical Courts, 97. 
 
 but will enjoin the parties, id. 
 
 injunction against proceedings in the 
 Admiralty Court, id. 
 
 not necessary that Court should find 
 case showing plaintiff entitled to 
 relief at all events, 98. 
 
 sufficient if case made for investiga- 
 tion, 99. 
 
 jurisdiction will not always be exer- 
 cised to stay proceedings in other 
 Courts, id. 
 
 equity restrains the person proceeding, 
 not the Court in which the pro- 
 ceedings are, 96. 
 
 injunctions against proceeding in ec- 
 clesiastical Courts, id. 
 
 jurisdiction to restrain proceedings in 
 Admiralty Courtfirmly established, 
 98. 
 
 injunction to stay legatee from suing 
 
 in the ecclesiastical Court, 100. 
 no jurisdiction to interfere against 
 obtaining probate of will, id. 
 
 but Court will interfere where fraud 
 practised against next of kin after 
 death of testator, id. 
 injunctions against proceedings in 
 the Scotch Courts, 101. 
 
 and in the Irish, jrf. 
 
 in the Lord Mayor's Court, 102. 
 
 in colonial Courts, id. 
 
 where Court will assist jurisdiction 
 of foreign Court, id. 
 
 whether equity will enjoiu proceed- 
 ings in another Court of equity, 
 103. 
 
 when party proceeding at law and in 
 equity at the same time, he will 
 be put to his election, and injunc- 
 tion granted if he elects to pro- 
 ceed in equity, 105. 
 
 injunction may sometimes be obtain- 
 ed with the order to elect, id. 
 
 injunction to restrain proceedings in 
 equity where concuirent suits, 105. 
 
 but if suits for different objects, no 
 injunction will be granted, id., 
 Sup. 15. 
 
 injunction granted in Ireland on in-
 
 INDEX. 
 
 119 
 
 JURISDICTION-confmHe^. 
 
 terlocutory application not binding 
 here, though an authority, 106. 
 
 secus, peihaps, if it had been a final 
 judgment, id. 
 
 jurisdiction to enjoin proceedings 
 elsewhere after the matter has 
 been drawn within the jurisdiction 
 of equity, 106, 107, 6«;). 9, 15. 
 
 application of, to administration suit, 
 107. 
 
 so to suit for specific performance, id. 
 
 jurisdiction to stay proceedings at 
 law in a creditor's suit after decree, 
 108. 
 
 but not unless there is a decree, id., 
 Sup. 15. 
 
 effect on jurisdiction to restrain pro- 
 ceedings at law by creditor, of the 
 nature of the suit in equity, 1 13. 
 
 if suit by one creditor on behalf of all 
 others, injunction after decree for 
 account, id. 
 
 if suit by creditor on his own behalf 
 merely, injunction not granted till 
 after final deciee, id. 
 
 effect on jurisdiction of the kind of 
 judgment at law, id. 
 
 distinction where the judgment is de 
 bonis testatoris, and where it is de 
 bonis testatoris et si non de propriis, 
 id. 
 
 examination of this distinction, id. et 
 seq.. Sup. 17 et sei/. 
 
 result of the authorities, 121, Sup. 20. 
 
 injunction refused to restrain execu- 
 tors from bringing action against 
 Bank for refusing to permit transfer 
 of slock, 122. 
 
 jurisdiction in regard to restraining 
 proceedings upon an award, 123. 
 
 where reference not under the stat. 
 9 & 10 Will. 3, c. 15, equity will 
 interfere, id. 
 
 secus, where refeience under the stat., 
 id. 
 
 no jurisdiction to restrain action on 
 a bond given to the master of an 
 apprentice, on ground of misuser 
 of I he apprentice, 126. 
 
 jurisdiction of the Court to restrain 
 proceedings against its officers, 
 127, Sup. 20. 
 
 where process of Court issued irregu- 
 larly, injunction granted to restrain 
 pioceedings against officers for exe- 
 cuting it, id. 
 
 so where process issued regularly, 
 but irregularly executed, id, et seq. 
 
 3 U RISDICTION— contiHKet/. 
 
 result of the authorities that where 
 wrong done by an officer of the 
 Court in executing its orders, in- 
 junction will be granted to restrain 
 proceedings in any other Court, 
 130. 
 
 where auctioneer employed in sale 
 under direction of the Court has 
 carried in claim before the Master, 
 he will be restrained from bringing 
 action, id. 
 
 where commissioners for examina- 
 tion of witnesses restrained fioiii 
 bringing actions for their fees, id. 
 
 what is meant by person being with- 
 in the jurisdiction of the Court, 
 131. 
 
 when Court will not interfere to stay 
 proceedings in another Court, id. 
 
 parties applying must have a suffici- 
 ent interest, 132. 
 
 whether tiie Court has jurisdiction to 
 prevent parties from petitioning 
 the legislature, id. 
 
 clear that it cannot interfere, if pro- 
 ceedings in the legislature have 
 gone so far as the introduction of 
 a bill, id. 
 
 jurisdiction to interfere in cases of 
 copyright, not taken away because 
 act of parliament gives a special 
 remedy, 192. 
 
 to restrain publication of letters, 206. 
 
 as to restraining publication of trials 
 before the House of Lords, 210. 
 
 of cases depending in the Courts of 
 law, id. 
 
 commissioners of sewers are a Court 
 of record, 247. 
 
 but equity has jurisdiction to inter- 
 fere against iheir acts, id. 
 
 where equity will interfere against an 
 Older made by magistrates at 
 quarter sessions, 248. 
 
 Court cannot compel performance of 
 substantive act, 260. 
 
 but will in certain cases by injunc- 
 tion specially worded, id. 
 
 jurisdiction not approved in a late 
 case, 263. 
 
 result of the authorities that the ju- 
 risdiction exists, 265. 
 
 but will not be extended, id. 
 
 Court will not exercise it to compel 
 carrying on a business, id. 
 
 but will restrain a p;irly from so deal- 
 ing with his property as to pre-
 
 120 
 
 INDEX. 
 
 JURISDICTION— conn/iKfrf. 
 
 elude himself from fulfilling his 
 covenants, 266. 
 
 generally jurisdiction of equity not 
 ousted because there is a remedy 
 at law, 328. 
 
 injunction granted where an equity 
 exists on which Court of law re- 
 fuses to adjudicate, 329. 
 
 not granted against sheriff seizing 
 under judgment against landlord, 
 where tenant has possessory light, 
 id. 
 
 general rule that Court will not 
 grant injunction in aid of legal 
 right, where it has strong doubts 
 whether that right would be sup- 
 ported at law, 329, 330, Sup. 78. 
 
 jurisdiction to interfere between in- 
 cumbrancers on ecclesiastical be- 
 nefices, 331. 
 
 Court will not notice as plaintiff 
 body purporting to be foreign go- 
 vernment, where not recognised by 
 this government, 331. 
 
 whether it can be noticed at all, id. 
 
 department of the executive of this 
 country may be restrained, id. 
 
 Court may interfere under conven- 
 tions between this and a foreign 
 country, id, 
 
 pending litigation in ecclesiastical 
 Court touching grant of probate, 
 injunction will be granted restrain- 
 ing interference with the testator's 
 estate, 177. 
 
 principle on which the Court inter- 
 feres, id. 
 
 distinction between absence of juris- 
 diction and refusal to exercise, 
 Sup. 15. 
 
 whether jurisdiction to disobey act of 
 parliament, Sup. 72, 73. 
 
 when party amenable to jurisdiction 
 for unintentional injury to pro- 
 perty, Sup. 77, 78. 
 
 JURY, railroad company not permitted 
 to include in precept to jury lands 
 different from those included in 
 notice, 291. 
 
 L. 
 
 LACHES, more important as against a 
 public company, than in other 
 cases, 293. 
 
 LACHES — continued. 
 
 what constitutes such laches as will 
 
 deprive a party of his right to an 
 
 injunction against a company, 
 
 294. 
 laches may deprive a defendant of 
 
 his right to dissolve, id. 
 effect of, generally. Sup. 31. 
 effect of, on plaintiff put to try right at 
 
 law speedily. Sup. 42. 
 effect of, in reference to companies, 
 
 Sup. 70. 
 in reference to patents, id. 
 effect of, where plaintiff left to bring 
 
 action and does not. Sup. 85. 
 
 LANDLORD AND TENANT, appli- 
 cation of the principle of relief 
 against forfeiture as between land- 
 lord and tenant, 88. 
 
 under special circumstances relief 
 against forfeiture by neglect to re- 
 pair, 90, 
 
 relief against forfeiture by tenant, 
 where landlord a lunatic, id. 
 
 when Court will restrain landlord 
 from bringing ejectment, 49. 
 
 or will put the tenant on terms, id. 
 
 when it will not, id. 
 
 not restrained when tenant under 
 agreement insolvent, id. 
 
 landlord not restrained from bringing 
 action for rent because premises 
 are burnt, 73. 
 
 landlord does not waive covenant 
 against carrying on certain trades, 
 by permitting one of them to be 
 carried on, 92. 
 
 course for landlord to pursue, when 
 ejectment brought against his te- 
 nant, 338. 
 
 landloid cannot have injunction to 
 stay execution in ejectment, if he 
 has let the action go on to judg- 
 ment, id. 
 
 where landlord will be restrained 
 from distraining on bankrupt te- 
 nant, 313. 
 
 generally tenant cannot restrain bill 
 of interpleader against landlord, 
 327. 
 
 but when tenant admits title as 
 landlord being ignorant of its 
 being disputed, he may file bill of 
 interpleader, id. 
 
 tenant may file bill of interpleader 
 where mortgagor and mortgagee, 
 or trus'ees and cestui que trust, 
 claim rent, id.
 
 INDEX. 
 
 121 
 
 LANDLORD, kc.—conlinued. 
 
 or where double demand arises out 
 of act of landlord himself, 327 — 
 See Covenant. 
 
 LEASE — LEASEHOLD — LESSEE, 
 party holding under agreement 
 for, may obtain injunction to re- 
 strain ejectment, 49. 
 
 when lease granted under power, 
 and Court cannot see that the 
 lease is clearly not within the 
 power, injunction will be granted 
 against ejectment, 51. 
 
 no waiver of agreement to take a 
 lease, that the party refuses to 
 execute a lease, id. 
 
 party holding under agreement will 
 not obtain injunction to restrain 
 ejectment, if he has treated the 
 farm in a grossly unhusbandlike 
 manner, 52. 
 
 where lessee of charity lands mixes 
 them with his own, he will be re- 
 strained from bringing ejectment 
 till it is ascertained which are the 
 charity lands, 71. 
 
 where a partner agrees to take a 
 lease for the partnership, and 
 takes it in his own name, 282. 
 
 where partners take a lease and one 
 dies, 282. 
 
 injunction to restrain action in re- 
 spect of leasehold by assignees of 
 a bankrupt, where their claim to 
 the leasehold doubtful, 316. 
 
 breaches of covenant in. Sup. 13. 
 
 LECTURES, of injunctions to restrain 
 publication of, 212. 
 
 LEGACY, husband will be restrained 
 from proceeding in the Ecclesias- 
 tical Court for his wife's legacy, 
 71. 
 
 LEGACY — LEGATEE, legatee re- 
 strained from suing in the Eccle- 
 siastical Court, 100. 
 
 LEGISLATURE, whether equity has 
 jurisdiction to prevent parties from 
 petitioning the, 132. 
 clear that it has no jurisdiction to 
 interfere, if proceedings in the le- 
 gislature have gone so far as the 
 introduction of a bill, id. 
 
 LETTERS, jurisdiction of equity to re- 
 strain publication of, 206, Sup. 37. 
 
 LETTERS— continued. 
 
 every private letter not necessarily 
 
 subject of copyright, 207. 
 piratical publication of, written by 
 
 plaintiff, restrained, id. 
 secus as to letters written to him, id. 
 
 LETTERS-PATENT, ground of inter- 
 position to restrain infringment of, 
 220. 
 
 jurisdiction only in aid of legal right, 
 id. 
 
 not necessary in general first to es- 
 tablish right at law, 221. 
 
 Court will not consider trial at law 
 complete if bill of exceptions has 
 been tendered. Sup 41. 
 
 verdict for patentee not conclusive 
 on motion for injunction against 
 another person, where new issue 
 of fact as to infringement, Si//). 41. 
 
 but Court gives weight to if, Sup. 41. 
 
 when Court will require title at law 
 to be first established, and when 
 not, 222, 223. 
 
 general result of the authorities on 
 this point, 223, 224, Sup. 42, 43. 
 
 where bill makes no case for injunc- 
 tion, but answer does, 224, but see 
 Sup. 45. 
 
 what course pursued where plaintiflF 
 does not move for injunction till 
 the hearing, id., Sup. 44. 
 
 where specification of a second patent 
 recites first, but does not distin- 
 guish the matter of the first inven- 
 tion from that of the second, 225. 
 
 when a patent is for improvements, 
 specification t^hould distinguish new 
 thing from old, id. 
 
 what aifidavit requisite to obtain ex 
 parte injunction against infringer 
 of letters-patent, 226. 
 
 whether same requisite when motioa 
 on notice, Sup. 45. 
 
 equity will restrain sale after expira- 
 tion of patent of articles piratically 
 made during its existence, 226. 
 
 what allegation in a bill to restrain 
 infringement of a patent will pre- 
 vent demurrer, 227. 
 
 copyright does not subsist in copies 
 of specifiiations of letlers-pitent, 
 taken from the rolls, 213. 
 
 but does in reduced copies of draw- 
 ings annexed to specifications of 
 patents, id. 
 
 whether copyright subsists in copies 
 of such drawings not reduced, 214.
 
 122 
 
 INDEX. 
 
 LETl ERS- PATENT— continMfd. 
 
 efi'ect of laches on plaintiff put on 
 terms to try right speedily, Sup. 42. 
 of orders for inspection, Sup. 47. 
 
 LICENCE, effect of parol licence by au- 
 thor to use his copy, 193. 
 
 LIGHTS. — See Nuisance ; Ancient 
 Lights. 
 
 LORD OF MANOR, perpetual injunc- 
 tion not granted to establish legal 
 title of, where no ground of vexa- 
 tious litigation, and nothing to 
 prevent trial of the right at law, 
 344. 
 
 M. 
 
 MAGISTRATES, where equity will in- 
 terfere against an order made by 
 magistrates at quarter sessions, 
 248. 
 
 MANDATORY INJUNCTION.— See 
 Injunction; Specific Perform- 
 ance. 
 
 MANUFACTURES, copyright on de- 
 signs for ornamenting. Sup. ^9, 
 for designs with purpose of utility for 
 the shape, id. 
 
 MANUSCRIPTS, injunctions to restrain 
 publication of unpublished manu- 
 scripts, 209. 
 
 MAPS, doctrine of equity as to copyright 
 in, 201. 
 what evidence of piracy in respect of, 
 202. 
 
 MARKET FRANCHISE, when nui- 
 sance to hold maiket, 246. 
 
 plaintiff must, in such cases, first 
 have tried the title at law, id. 
 
 seciis, where the title appears on re- 
 cord, 247. 
 
 MARRIAGE — MARRIAGE BRO- 
 CAGE, juiisdiclion of Court over 
 marriages of infants, 330. 
 
 when proceedings are instituted in 
 Spiritual Court to invalidate mar- 
 riage of infants, injunction granted 
 in the mean time, 331. 
 
 relief against bonds given to secure 
 a promise of marriage, in fraud of 
 third parlies, 13. 
 
 exception to the rule, 14. 
 
 bond given for marriage biocage, re- 
 lieved against, 22 — 25. 
 
 MINES, trespass in, early restrained, 
 183. 
 
 present practice, 184. 
 
 tenant for life may continue working 
 mines lawfully opened, 136. 
 
 as to mines, bill for an account will 
 lie, whether remedy or nor at law, 
 167. 
 
 orders for inspection in cases of in- 
 junction to restrain working of 
 mines, Sup. 52. 
 
 MISTAKE, equity relieves against mis- 
 take of fact, 62. 
 when not, Sup. 7. 
 but not of law, 62, Sup. 7, 8. 
 
 MORTGAGEE, dying without heir, his 
 executor will be restrained from 
 proceeding to compel payment of 
 morjgage money, 68. 
 
 or wheie the title deeds have been 
 so dealt with by the mortgagee, 
 that the mortgagor cannot obtain 
 them on paying the mortgage 
 money, id. 
 
 having foreclosed, and then sold for 
 less than mortgage money and in- 
 terest, may bring an action on his 
 collateral security, if he will and 
 can open the foreclosure. 70. 
 
 secus, if he cannot de facto open the 
 foreclosure and reconvey, id. 
 
 may sue on his covenant and sell 
 under power at same time, Sup, 10. 
 
 having made his character of mort- 
 gagee conditional, may be re- 
 strained, 70. 
 
 of colonial lands will be restrained 
 from proceeding in foreclosure suits 
 in this country, and in the colony 
 also, 71. 
 
 And see Waste, X. and XI. 
 
 MUSIC, copyright in.— See Copyright. 
 
 MUTUALITY, want of, in a contract, 
 14. 
 
 N. 
 
 NAME, no injunction to restrain selling 
 pills, using name of physician as 
 the compounder of them, Sup. 35. 
 See Trade Marks. 
 
 NISI, order nisi.— See Practice; Dis- 
 solving Injunctions.
 
 INDEX. 
 
 123 
 
 NOTE, taken when overdue, 3. 
 
 when holder did not know of illega- 
 lity, id. 
 dishonored on the face of it, id. 
 taken with notice that they are made 
 to an executor, 6. 
 
 NOTICE, eflfect of notice of covenant not 
 running with the land. Sup. 60. 
 
 NUISANCE, ground of jurisdiction to 
 interfere against, 237, Sup. 58. 
 
 exercised with great caution, 237. 
 
 common trespass not foundation for 
 injunction, id. 
 
 secus, if it extends to being a nui- 
 sance, id. 
 
 Court does not grant ex parte injunc- 
 tions to stop expensive manufac- 
 tories, 238. 
 
 but notice of motion required, id. 
 
 jurisdiction not original, id. 
 
 but to protect legal right, id. 
 
 Court will not interfere on conflict- 
 ing affidavits, where title not esta- 
 blished, id. 
 
 but in plain case of nuisance Court 
 will interfeie ei parte, id. 
 
 no injunction to restrain building 
 merely on ground of intercepting 
 prospect, id. 
 
 unless express covenant, 239. 
 
 Court will not on motion order work 
 to be pulled down, id. 
 
 but may do so on decree, 240. 
 
 exception, id. 
 
 to restrain public nuisance, suit 
 should be by Attorney-General, 
 id. 
 
 where case of private as well as 
 public nuisance, Attorney-General 
 not necessary party, id. 
 
 Court will not in general interfere to 
 prevent manufacture as private nui- 
 sance, till right tried at law, id. 
 
 what amounts to such nuisance as 
 the Court will interfere to prevent, 
 241. 
 
 injunction refused to restrain the 
 building of a small pox hospital, 
 242. 
 
 so to restrain erection of a statue in 
 an open space surrounded by 
 houses, 243. 
 
 how far railroad company will be 
 restrained from using a private 
 road, and how far not, 244. 
 
 where demurrer for want of equity to 
 bill to restrain nuisance will not 
 lie, id. 
 
 NUISANCE— co»(irii(ef/. 
 
 as to restraining the darkening of 
 ancient lights, 245. 
 
 Court has not necessarily jurisdiction 
 because action will lie, id. 
 
 what the foundation of the jurisdic- 
 tion, id. 
 
 position of building not material, id. 
 
 diminution of value no ground for 
 equitable interference, id. 
 
 what the principle is, id. 
 
 lights must be ancient lights, 246. 
 
 or there must be some agreement, id. 
 
 when nuisance to hold a market, id. 
 
 plaintiff' must first have tried the title 
 at law, id. 
 
 secus, when the title appears on re- 
 cord, 247. 
 
 remedy against, lost by acquiescence. 
 Sup. 4. 
 
 contingent nuisance not restrained, 
 248, Sup. 59. 
 
 O. 
 
 OBTAINING.— SeePRACTicE, VI. VII. 
 
 OFFICERS OF THE COURT, re- 
 straining proceedings against, 127 
 et seq., Sup. 20. 
 
 PARLIAMENT, agreement relating to 
 proceedings in, enforced. Sup. 71. 
 
 PARSON, waste by, 169, Sup. 24. 
 See Waste, XIV. 
 
 PARTICEPS CRIMINIS, parties to a 
 fraud restrained from enforcing it 
 against other parties, 43 et seq. 
 even where title originally fair, but 
 fraudulently concealed, 45. 
 
 PARTNERS— PA RTNERSHIP. 
 
 where injunctions between, gene- 
 rally, 279. 
 
 where injunctions granted to restrain 
 one partner from drawing bills in 
 name of firm, id. 
 
 where a bill is taken in the name of 
 the firm by a partner expressly 
 forbidden to draw in the name of 
 the firm, 6. 
 
 partnership must be complete to 
 warrant interference by injunction, 
 280.
 
 124 
 
 INDEX. 
 
 PARTNERS— PARTNERSHIP— coK- 
 
 tinned. 
 
 whether Court will restrain partner, 
 unless ihere is a case for a disso- 
 lution, 280, Sup. 68. 
 
 Court relieves against a transaction 
 nominally a partnership, entered 
 into for the purpose of fraud on 
 the usury laws, 31. 
 
 but not where the transaction is bond 
 fide, although the result may be 
 actually the obtaining of usurious 
 interest, 31,32. 
 
 effect of partners departing from terms 
 of partnership articles, 275. 
 
 when partnership constituted by ver- 
 bal arrangement, 282. 
 
 where partner agrees to take lease 
 for partnership, and takes it in his 
 own name, id. 
 
 where partners take lease, and one 
 dies, id. 
 
 where surviving partners not re- 
 strained from using name of de- 
 ceased partner, 283. 
 
 partnership cases chiefly on special 
 covenants, id. 
 
 where by the articles the majority 
 are to bind minority, a dissenting 
 partner will not obtain an injunc- 
 tion to restrain the majority from 
 permitting use by others of the 
 partnership implements, id. 
 
 ex ■pane injunction granted to solvent 
 partners to restrain assignees from 
 sellingjoint effects, 310. 
 
 where person holding joint and seve- 
 ral security against a partnership, 
 will be restrained from biinging 
 joint action, one partner having 
 become bankrupt, 312. 
 
 And see Waste, XVII. 
 
 PARTNERSHIP STYLE, passes by 
 survivorship to surviving partner, 
 and not to next of kin of original 
 partner, 234. 
 
 injunction refused to restrain party 
 having sold goodwill of a business 
 from commencing similar business, 
 id. 
 
 secus, if he holds out that he is re- 
 suming the original business, id. 
 
 effect on title of plaintKF to relief in 
 such cases, of his having himself 
 deceived the public, 236. 
 
 PASTURE, what is ancient, 156. 
 And see Waste, II. XIV. 
 
 PAYMENT out of Court, when not re- 
 strained. Sup. 8. 
 
 PEER, where an agreement between a 
 landowner, being also a peer of 
 parliament, to withdraw opposition 
 to a railroad bill for a considera- 
 tion, is not illegal, 302 et seq. 
 
 PENALTY, where intended to be an 
 assessed amount of compensation, 
 equity will not interfere, 77. 
 
 secus when intended only as a secu- 
 rity, id. 
 
 injunction, where a bond given to 
 secure performance of articles to 
 build a bridge and keep it in re- 
 pair, 77, 78. 
 
 what is stipulated damages, and what 
 a mere security, 78. 
 
 where 1 end given to do a thing oa 
 a future day, and it is not done, 
 an injunction will, under circum- 
 stances, be granted, 80. 
 
 PERIODICAL \VORK. 
 
 See Copyright. 
 
 PERMISSIVE WASTE. 
 See Waste, XV. 
 
 PERPETUAL INJUNCTION, what it 
 is, 342. 
 
 when resorted to, and when not, 343. 
 
 not granted except after some con- 
 clusive decision of the right, id. 
 
 not granted to establish legal title of 
 lord of manor where no ground of 
 vexatious litigation, and nothing 
 to pievent trial of it at law, 344. 
 
 not necessary to revive where plain- 
 tiff dies, id. 
 
 injunction not discharged, no ground 
 for resisting dismissal of bill, as 
 that would be treating it as a per- 
 petual injunction, id. 
 
 PETITION, wheie injunction granted 
 on, 360. 364, 365. 
 And see Practice, VII. 
 
 POLICY OF INSURANCE, bill of 
 discovery may be maintained in 
 respect of, to discover fraudulent 
 representations, but not. it seems, 
 a bill for an injunction, 34. 
 
 POWER, when lease granted under, and 
 Court cannot see that it is clearly 
 not within the power, injunction 
 granted against ejectment, 51.
 
 INDEX. 
 
 125 
 
 FOWER— continued. 
 
 equity will relieve against defective 
 
 execution of a power, 63. 
 but not against non-execution of a 
 
 power, id, 
 
 PRACTICE. 
 
 I, Amendments, 
 
 effect of amending bill formerly, 388. 
 
 whether order to amend after com- 
 mon injunction befoie answer with- 
 out prejudice, was an order of 
 course, formerly doubtful, 389. 
 
 practice now settled by '2ud order, 
 Way, 1839..;(f. 
 
 rule now that order to amend will 
 not piejudice injunction, either 
 special or common, id, 
 
 and that, whether words icilhout pre- 
 judice inserted or not, id, 
 
 application of rule not affected as 
 regards special injunction by ge- 
 neral deinurier, id. 
 
 practice befoie orders of 1839 as to 
 amending after special injunction, 
 390. 
 
 practice before orders of 1839 as to 
 injunction on amended or supple- 
 mental bill, when common injunc- 
 tion had been refused on the an- 
 swer, or dissolved on merits, id, 
 
 distinction taken in Nelthoipe v. Law 
 and ^tatharri v. Hughes, where no 
 injunction obtained on original 
 bill, 391. 
 
 effect on this point of 3rd order of 
 1839, id. 
 
 whether it affects such cases as 
 Stiithdtn v. Hughes, 392. 
 
 whether 2nd order of ftlay, 1839, 
 applies to cases where answer ex- 
 cepted to, 392, 
 
 whether orders of 1839 apply to re- 
 amendments, 394. 
 
 application of 10th order of 1833, 
 before orders of 1839, id. 
 
 effect of 3id order of 1839 on this 
 point, ((/. 
 
 operation of 3rd order of May, 1 839, 
 confined to cases where injunction 
 prayed by original bill, id. 
 
 where answer excepted to and order 
 obtained to amend, and for defend- 
 ant to answer amendments and 
 exceptions together, 395. 
 
 effect of amendment of bill by order 
 of course, on a notice of motion for 
 an injunction, 396. 
 
 PRACTICE— fDn/(Hi(e</. 
 
 I. Amendments — continued. 
 
 See further as to eflTect on injunction 
 of amendments, Hup. 92, 93. 
 
 II. Breach of injunction. 
 injunciion operates from date of 
 
 order, 393. 
 
 party to be guilty of breach should 
 regularly have notice of injunction, 
 id, 
 
 but if defendant or his attorney pre- 
 sent when order pronounced, it is 
 breach to disobey it, id. 
 
 so if defendant is in Court during 
 hearing of niolion, he cannot avoid 
 the order by leaving Court before 
 it is actually pronounced, 399. 
 
 where breach, party admitting he 
 believed order to have been made, 
 id, 
 
 notice in any way will aff'ecl disobe- 
 dience of the order with the cha- 
 racter of a contempt, id. 
 
 what the true principle, id. 
 
 what service of injunction sufficient, 
 id. 
 
 generally injunction should be served 
 personally, Sup, 94. 
 
 where substituted service will be 
 ordered, id. 
 
 constructive breach of an injunction, 
 399. 
 
 breach to commence process of con« 
 tempt at law against sheriff" for not 
 executing judgiient, after injunc- 
 tion granted, 359. 
 
 what is not a breach, 400, Sup. 94. 
 
 where breach of injunciion to deliver 
 declaration at law, 401. 
 
 construction of proviso in order for 
 injunction, that defendant is lo be 
 at liberty lo call for plea and pro- 
 ceed to trial, id. 
 
 conditional declaration not com- 
 mencement of action, id. 
 
 breach of injunction to give notice 
 of trial after injunction, 402. 
 
 award made rule of Court held com- 
 mencement of proceeding at law, 
 
 ;</ 
 
 breach of injunction to give notice of 
 diclaration against bail of defend- 
 ant at law, 403. 
 
 after order to extend, it is breach to 
 obtain an order for changing the 
 venue, Sup. 95. 
 
 where refusal to countermand pro-
 
 126 
 
 INDEX. 
 
 PRACTICE— continued. 
 
 II. Breach of injunction — continued. 
 
 cess by sheriff, held a breach of an 
 injunction, 409. 
 
 breach of an injunction by lodging 
 with sheriff attachment for non- 
 payment of costs, id. 
 
 although Court may see that if all 
 the circumstances had been before 
 it, it would not have made the 
 order, id. 
 
 proceeding by creditor against exe- 
 cutor, after notice of decree to ac- 
 count, is bleach, 404. 
 
 plaintiff may lose by laches advan- 
 tage of breach, id. 
 
 injunction to stay proceedings against 
 principal extends to stay proceed- 
 ings against bail, 405. 
 
 where it is no breach of injunction 
 to take proceedings against bail, 
 id. 
 
 whether injunction against obligee of 
 a bond, his counsellors and agents, 
 extends to his assignees, id. 
 
 no breach by an agent where servants 
 and agents not named, Sup. 95. 
 
 no breach to proceed against plaintiff 
 not named, but only represented, 
 Sup. 83. 
 
 what waiver of right to move for 
 breach, Sup. 95. 
 
 course of proceeding where injunc- 
 tion is to do a thing, 406. 
 
 where it operates strictly by way of 
 restraint, id. 
 
 whether necessary to produce writ in 
 Court, on motion to commit for 
 contempt, id. 
 
 order must be obeyed, although irre- 
 gularly oblaiaed, id. 
 
 III. Extending common injunction. 
 effect of common injunction when 
 
 obtained before declaration at law, 
 376. 
 
 when after, id. 
 
 object of seeking order to extend in- 
 junction to stay tiial, id. 
 
 plaintiff to obtain the order for de- 
 fault of answer must show that 
 answer is material to his defence 
 at law, 377. 
 
 how application supported, id. 
 
 form of affidavit formerly sufficient, 
 id. ^ 
 
 affidavit now requisite, id.. Sup. 87. 
 
 when it may be filed, 378. 
 
 Court generally gives credit to it, id. 
 
 FRACTlCll— continued. 
 
 III. Extending common injunction — 
 continued. 
 
 when otherwise, 378 ; same point. 
 Sup. 88. 
 
 general doctrine as to extending com- 
 mon injunction to stay trial, 381. 
 
 exception to rule, that common in- 
 juncuon must be first obtained, id, 
 
 when order to extend not granted, 
 382. 
 
 cannot be obtained at once, id. 
 
 what is the proper course, id. 
 
 orders to extend not granted where 
 delay unaccounted tor in plaintiff, 
 383, ii/p.87. 
 
 where not even on terms of plaintiff 
 giving security for costs, Sup. 88. 
 
 where there is delay in moving, 
 and answer excepted to found in- 
 sufficient. Sup. 87. 
 
 generally cannot be moved for ex- 
 cept on notice, 383. 
 
 exception, id. 
 
 common form of, not altered because 
 of proceedings at law to settle pleas 
 in action, Sup. 88. 
 
 what a good objection to motion for 
 order to extend, 384. 
 
 principle on which the Court pro- 
 ceeds, id. 
 
 bill and motion must take the same 
 case, 385. 
 
 when answer must be filed to be a 
 good objection to order to extend, 
 Sup. 88. 
 
 Court will not look into answer with- 
 out exceptions being filed. Sup. 89. 
 
 as to extending common injunction 
 where the ol)ject is to have com- 
 mission to examine witnesses, 385. 
 
 commission cannot be obtained be- 
 fore default, 386. 
 
 suggestion as to effect of orders of 
 1833, Iff, 
 
 where plaintiff has no case to slay 
 trial on the original bill, he cannot 
 have order to extend on amended 
 bill, id. 
 
 as to obtaining order where bill 
 amended, Sup. 90, 91. 
 
 IV. Dissolving injuiictions against prO' 
 ceedings at law. 
 
 generally injunction can only be dis- 
 solved in open Court, 409. 
 
 exceptions, id. 
 
 proper course to obtain order nisi on 
 answer coming in, id.
 
 INDEX. 
 
 127 
 
 PRACTICE— coH(i««erf, 
 
 IV. Dissolving injunctiotis ai^ainst pro- 
 ceedings at law — coniinued. 
 
 filing a plea does not enlille defend- 
 ant to order nisi, 410. 
 
 Court on granting order nisi fixes 
 time for showing cause, id. 
 
 regularly, no further time allowed. 
 Sup. '97. 
 
 if defendant excepts, and cannot sus- 
 tain exceptions, injunction gone, id. 
 
 what proper course when or^er iiisi 
 irregularly obtained, 411. 
 
 plea alio wed, ground for dissolying,jrf. 
 
 but not plea ordered to stand for 
 answer, id. 
 
 when special order granted to dis- 
 solve at once, id., Hup. 98. 
 
 reference for scandal or impertinence, 
 ground for dissolving, 412. 
 
 contra, Sup. 98. 
 
 but plaintiff put on terms to procure 
 report on refeience for imperti- 
 nence within limited time, id. 
 
 extent of analogy between reference 
 for insufficiency and for imperti- 
 nence, 413. 
 
 general practice as to referring an- 
 swer for insufficiency, 4 14, Sup. 99. 
 
 rule different in injunction suits, id. 
 
 principle of the rule, 415. 
 
 if sufficiency of answer objected to, 
 exceptions will be leferred in- 
 stanter, Sup. 82. 
 
 but plaintiff must make bo7id fide 
 case, id. 
 
 in general defendant may obtain order 
 nisi as soon as answer filed, id. 
 
 but irregular if he waits till excep- 
 tions filed, id. 
 
 where plaintiff" does not serve injunc- 
 tion till defendant has proceeded 
 to verdict, id. 
 
 where defendant is guilty of delay in 
 moving to dissolve, id. 
 
 where order to enter injunction nunc 
 pro tunc regular, 416. 
 
 where plaintiffcannot show exceptions 
 for cause against dissolving, id, 
 
 ground for dissolving injunction un- 
 der 2nd order of 1839. .416, 417. 
 
 practice where order nisi has been 
 obtained of such a date that mo- 
 tion to make it absolute is on the 
 last seal before the long vacation, 
 417. 
 
 where order nisi has not been ob- 
 tained, id. 
 
 course where exceptions are shown 
 for cause against dissolving, id. 
 
 FRACTICE— continued. 
 
 IV, Dissolving injutictions aoainst pro- 
 ceedings at law — continued. 
 
 when time for obtaining report will 
 be enlarged, and when not, 418. 
 
 how irregulaiity of obiainmg order 
 for injunction when not prayed for, 
 may be waived, 418. 
 
 exceptions cannot be shown for 
 cause against dissolving injunction 
 against infant, id. 
 
 general rule when several defendants 
 enjoined, 419. 
 
 exceptions to the rule, id. 
 
 where some move to dissolve as 
 against themselves before others 
 have answered. Sup. 100. 
 
 where some move to dissolve injunc- 
 tion as against others who do not 
 move, id. 
 
 when a bill dismissed, not necessary 
 to obtain distinct order to dissolve 
 injunction, id. 
 
 where bill filed against company and 
 their officer, 420. 
 
 practice as to dissolving the order 
 for injunction, and to extend it to 
 stay trial, id. 
 
 order to stay trial may. under circum- 
 stances, be discharged alone, id. 
 
 practice when defendant in equity 
 abroad, 421. 
 
 if bill alleges equity against verdict 
 it must be supported by affidavit, irf. 
 
 injunction does not prevent bill being 
 dismissed, id. 
 
 eflfect of demurrer on common injunc- 
 tion, 422. 
 
 on demurrer allowed, injunction gone. 
 Sup. 100, 101. 
 
 although leave given to amend, id. 
 
 distinction as to eflfect of demurrer 
 where injunction issues before and 
 when alter execution, id. 
 
 whether bankruptcy of plaintifTabate- 
 nient of suit, 423. 
 
 course as to dissolution of injunction 
 where plaintiff becomes bankrupt, 
 id. 
 
 when he becomes insolvent, 424. 
 
 what Court will do where injunction 
 ei parte improperly obtained, id, 
 
 practice as to reading affidavits 
 against answer, id. 
 
 never read to contradict answer, 425. 
 
 but may, to substantiate written in- 
 struments neither admitted nor 
 denied by answer, 425. 
 
 but not to establish facts neither ad- 
 mitted nor denied, id., Sup. 101.
 
 128 
 
 INDEX. 
 
 FR\CTICE— continued. 
 
 IV. Dissolving injunctions against pro- 
 ceedings at /«u;— continued. 
 
 answer evidence for defendant only 
 as to facts, to which other testi- 
 mony might be received, 426, 427. 
 
 where injunction to restrain vendor 
 from proceeding in ejectment not 
 dissolved on affidavits of trifling 
 waste, 426, 427. 
 
 V. Dissolving special injunctions. 
 special injunctions always dissolved 
 
 on merits, 428. 
 motion may be made at once on affi- 
 davits before answer, id. 
 
 although defendant might try the 
 question by demurrer. Sup. 102, 
 103. 
 
 limit as to filing affidavits and coun- 
 ter affidavits, Sup. 103. 
 
 as to reading affidavits against an- 
 swer, 428, S»p. 104. 
 
 general rule same as in regard to in- 
 junctions against proceedings at 
 law, id. 
 
 distinction as to cases of waste, and 
 analogous cases, 428, 429. 
 
 may be read as to acts of waste, 429. 
 
 but not as to title, id., Sup. 105. 
 
 ground of permitting affidavits to be 
 read against answer, 429. 
 
 does not apply to negotiation of bills, 
 
 id- 
 distinction as to moving for injunc- 
 tion after answer, and moving to 
 dissolve injunction after answer, 
 430. 
 affidavits not admitted as to facts 
 
 which indirectly affect title, 431. 
 but answer must be full answer, id. 
 if not full, treated as affidavit, and 
 
 affidavits allowed against it, id. 
 rule wliere notice of motion given to 
 dissolve ei parte injunction, and it 
 stands over at request of plaintiff, 
 id , Sup. 104. 
 where at request of defendant, that 
 
 he may put in answer. Sup. 104. 
 
 where motion made aftei answer and 
 
 no affidavits filed before, as to 
 
 reading affidavits after answer, id. 
 
 where after answer affidavits filed 
 
 and tendered on both sides, id. 
 where filed by defendant but not 
 
 read. Sup. 105. 
 where special injunction obtained 
 against several defendants, and 
 some only have answered, 432, 
 Sup. 106. 
 
 FR.iiCTlCE— continued. 
 
 VI. Obtaining injunctions against pro- 
 ceedings at law. 
 injunction not obtained in general 
 
 until bill filed, 346. 
 nor in general against person not a 
 
 party to the suit, id. 
 common injunction never obtained 
 
 without bill filed, id. 
 bill must pray injunction, id. 
 and in prayer of process, as well as 
 
 in prayer for relief, id. 
 effect of amending bill by introducing 
 prayer for injunction in prayer of 
 process, 347. 
 general rule that common injunction 
 not obtained till some default, id. 
 subpoena to appear served in injunc- 
 tion suits in general as in other 
 suits, i(/. 
 but where defendant abroad, service 
 
 on defendant's attorney good, id. 
 affidavit of truth of bill must accom- 
 pany motion, id. 
 and must be by plaintiff, 348. 
 by his solicitor will not do, unless 
 he has personal knowledge of the 
 merits, id. 
 when common injunction may be ob- 
 tained, id. 
 motion may be made on any day in 
 
 or out of term, id. 
 and whether in long vacation or at 
 
 any other time, Sup. 81, 100. 
 nature of the order, 349. 
 not irregular to demur within twelve 
 days, although after order for in- 
 junction, id 
 granted as of course on demurrer 
 
 being overruled, 350. 
 effect of referring bill for imperti- 
 nence, id. 
 effect of referring bill for scandal, id. 
 where irregular to obtain injunction 
 
 for want of answer, id. 
 injunction to restrain proceedings at 
 law by one defendant against an- 
 other, 351. 
 injunction to stay proceedings at law 
 not granted before default, except 
 under special circumstances, id. 
 exceptions to this rule, 3.52. 
 whenimpraclicable to obtaincommon 
 injunction in lime to be of use, id. 
 when there may be irreparable mis- 
 chief, id. 
 where some defendants abroad, in- 
 junction not granted befoie their 
 appearance or default, id.
 
 INDEX. 
 
 129 
 
 PRACTICE-coH(i>n/e(/. 
 
 VI. Obtaining injunctions ngainst pro- 
 ceedings at law — continued. 
 Other cases on this point, 353. 
 effect of conflict of the Chancery 
 orders of 1833, and tlie common 
 law rules of 1834. .354. 
 whether injunction granted to stay 
 action brought by assignees of a 
 bond, in name of obligee, where 
 no answers put in, 355, 
 
 injunction not granted pending de- 
 murrer, 356. 
 but demurrer will be ordered to be 
 argued immediately, id. 
 
 so if sufficiency of answer objected 
 to, exception will be refused in- 
 stanter. Sup. 82. 
 
 but plaintiff must make bon<^ fide 
 case, id. 
 
 but demurrer will not be ordered, if 
 there is great delay unaccounted 
 for, 356. 
 
 demurrer overruled puts plaintiff in 
 same situation as if defendant in 
 default, 357. 
 
 injunction not granted to stay exe- 
 cution after verdict, unless clear 
 case, id. 
 
 common injunction to stay execution 
 and order for extending it to stay 
 trial, not obtained on one motion, 
 358. 
 
 writ of execution only binds debtor's 
 property from delivery of writ to 
 sheriff, id. 
 
 special case requisite to induce Court 
 to interfere after execution exe- 
 cuted, 359. 
 
 how Court ()roceeds where execution 
 against goods, id. 
 
 how if against person, id. 
 
 breach of injunction to commence 
 process of contempt at law against 
 sheriff for not executing judgment, 
 after injunction granted, id. 
 
 when bail must bring principal cre- 
 ditor before Court, id. 
 
 common injunction does not extend 
 to a distress for rem, 360. 
 
 nor to stay proceedings in Ecclesias- 
 tical Court, id. 
 
 nor, it seems, in Admiralty Court, id. 
 
 injunction obtainable by committee 
 of lunatic on petition, id. 
 
 of orders in the nature of injunctions, 
 where a suit is out of Couit, id. 
 
 where money must be paid into Court 
 as condition of granting injunc- 
 tion, 362. 
 
 PRkCTlCE— continued. 
 
 VI. Obtaining injunctions against pro' 
 ceedings at law — continued. 
 
 where not, 362. 
 
 where money is paid into Court, it is 
 a security, and not a payment, 363. 
 
 injunction till the hearing always 
 discretionary, id. 
 
 principle on which injunction con- 
 tinued or not, id. 
 
 injunction to stay proceedings at law, 
 where party is proceeding both at 
 law and in equity, may sometimes 
 be obtained with the order to elect, 
 105. 
 
 where special injunction founded on 
 common injunction may be ob- 
 tained. Sup. 83. 
 
 distiingas and restraining orders, id. 
 
 interim orders, Sup. 84. 
 
 VII. Obtaining special injunctions. 
 cannot be obtained generally, except 
 
 on bill filed, 364. 
 
 many exceptions, id.. Sup. 84. 
 
 whether application to obtain in- 
 junction in bankruptcy should be 
 by bill or by petition, formerly 
 doubtful, 307. 
 
 settled practice now to proceed by 
 petition, where application is in the 
 bankruptcy, 309. 
 
 as to the jurisdiction of the Court 
 of Review to grant injunction 
 against proceedings at law, in tj. 76. 
 
 special injunction granted on petition 
 to restrain marriage of infant ward, 
 364. 
 
 so in cases of waste, and analogous 
 cases in tiic vacation, 365. 
 
 where injunction granted on petition 
 while Court sitting, id. 
 
 but no order to do a thing, id. 
 
 injunction granted on petition on ap- 
 plication by committee of lunatic, ft/. 
 
 practice as to issuing ei parte injunc- 
 tion in cases of waste, and analo- 
 gous cases, id, 
 
 in general subpoena to appear and 
 answer must have been served, 366. 
 
 exception to this rule, id. 
 
 irregular to serve subpoena on Sun- 
 day, id. 
 
 where service of notice on a director 
 of a company specially made good 
 service, it must nevertheless be 
 addressed to the company, 367. 
 
 rule as to effect of appearance, id. 
 
 exception to the rule, id, 
 
 ground for permitting iniunction 
 K
 
 130 
 
 INDEX. 
 
 -PRACTICE— continued. I 
 
 VII. Obtaining special injunctions— 
 continued, 
 without notice of motion, 367. 
 where no immediate danger, notice 
 
 must be given, 368. 
 where motion is made after appear- 
 ance, affidavit should state that 
 fact, 368. 
 notice served by special leave of 
 Court, should state that on face of 
 it, id. 
 special injunction, properly so called, 
 
 not granted unless prayed, irf. 
 when granted, though not prayed, 
 
 Sup. 24, 86. 
 to obtain er parte injunction against 
 waste, particular title must be 
 shown, id. 
 wliat an insufficient affidavit of title, 
 
 368. 
 what affidavits requisite to obtain 
 special injunction to restrain in- 
 fringement of patent, 226, Sup. 45. 
 injunction against waste must be for 
 
 present or threatened waste, 368. 
 mere allegation of apprehension in- 
 sufficient, 369. 
 surveyor sent to mark trees suffi- 
 cient, id. 
 threat of opening mines, or cutting 
 
 limber, sufficient, i(/. 
 but threat of doing wrongful act in- 
 sufficient, if wrong cannot by pos- 
 sibility happen until future certain 
 period, id. 
 generally special injunction not 
 grantable against person not party 
 to suit, 369, 370. 
 but where person purchases under de- 
 cree, he may be restrained, 370. 
 solicitor not party may, under cir- 
 cumstances, be restramed, id. 
 semhie, persons not parties may be 
 
 restrained from waste, id. 
 granted on behalf of receiver against 
 
 person not party, Sup. 85. 
 asto injunctions against Bank, though 
 
 not parties, 370. 
 discussion of the form of order for 
 
 ex parte injunction, 371. 
 injunction against incumbrancers, 
 where mortgagor not befoie Court, 
 372. 
 party coming before Court for ex 
 parte injunction, not to misrepre- 
 sent facts, id. 
 and must stale all material facts, id. 
 
 Sup. 85. 
 where motion regular, although at 
 
 FRACnCE— continued. 
 
 VII. Obtaining special injunctions — 
 continued, 
 time of application facts different 
 from what they were when bill 
 filed, 372. 
 
 but party not bound to lay the whole 
 law before Court, 373. 
 
 where instrument neither admitted 
 nor denied by answer, it must be 
 proved by affidavit, id. 
 
 secus as to personal right of plaintiff, 
 id. 
 
 general rule as to reading affidavits 
 against answer, id., and see Sup. 
 104, 105. 
 
 where Court directs issue, 374. 
 
 injunction granted where plaintiff 
 swears to belief of facts in defend- 
 ant's knowledge, and defendant 
 will not contradict the allegation, 
 id. 
 
 generally ansvier of defendant cannot 
 be read against co-defendant, 375. 
 
 case where it may, id. 
 
 VIII. Reviving injunction. 
 
 where answer excepted to reported 
 sufficient, injunction gone, 396. 
 
 not revived by exceptions to Master's 
 report, id. 
 
 proper course where bill charges that 
 by books and papers contained in 
 schedule to answer, ground for an 
 injunction will appear, id. 
 
 PRAYER.— See Practice, VI. VII. 
 as to granting injunction when not 
 prayed. Sup. 24, 86. 
 
 PRESENTATION, where installation 
 of a presentee restrained, 181, Sxtp. 
 67. 
 
 PRINCIPAL AND SURETY.— See 
 Surety. 
 
 PROBATE, no jurisdiction to interfere 
 against obtaining probate of will 
 in Ecclesiastical Court, 100. 
 but where fraud practised against 
 next of kin after death of testator, 
 Court will interfere, id. 
 as to injunction to protect personal 
 estate pending litigation as to pro- 
 bate, 177 et seq., Sup. 27. 
 
 PROCEEDINGS AT LAW. See 
 
 JunrsDrcTioN; Practice. 
 
 PROHIBITION, equity will not in ge- 
 neral interfere by, against pro- 
 ceedings in the Ecclesiastical 
 Courts 97.
 
 INDEX. 
 
 131 
 
 PROMISSORY NOTE, where obtained 
 under circumstances of fraud, 2. 
 
 where taken when over-due, 3. 
 
 where indorsed after it is due, jury 
 will he directed to presume fraud 
 on slight circumstances, 3. 
 
 given in respect of gambhng trans- 
 actions 4. 
 
 whether equity has jurisdiction to 
 restrain proceedings on a note over- 
 due, because party may not be 
 able to recover on it at law, 9. 
 
 injunction against negotiation of, 
 where, 176. 
 
 See Bills and Bonds. 
 
 PUBLICATION of letters, 206, 207, 
 Sup. 37. 
 of catalogue of unpublished works, 
 
 Sup. 38, 39. 
 See Letters. 
 
 PUBLIC COMPANY, principle of act 
 of parliament empowering a com- 
 pany to carry a public work into 
 eflTect, 285. 
 
 not necessary in order to obtain in- 
 junction against company to make 
 out case of irreparable mischief, 
 288. 
 
 not always restrained, although ex- 
 ceeding powers. Slip. 69. 
 
 rule that Court will protect indi- 
 viduals against the sacrifice re- 
 quired from them under acts of 
 parliament, if it does not appear 
 that the public will have the bene- 
 fit intended, 289. 
 
 when railroad coinpany not pro- 
 tected against destruction of its 
 works, 290. 
 
 where railroad company not restrain- 
 ed from procetding, although it 
 has deviated from the parliamen- 
 tary line, id. 
 
 railroad company not permitted to 
 take land tor purpose different from 
 that authorized by its act, id. 
 
 may exercise right of purchasing 
 when it accrues, thougli it had not 
 such right at the time of giving 
 notice, 291. 
 
 not permitted to include in precept 
 to jury lands different from those 
 included in notice, id. 
 
 will not be restrained from proceed- 
 ing to assess whole of lands, on 
 allegation that it is entitled only 
 to part, 291. 
 
 PUBLIC COMPAiiY— continued. 
 
 where Court will refuse injunction 
 against a railway company, putting 
 it on terms to give an undertaking, 
 29L 
 immediate application against acts 
 of a company more requisite than 
 in other cases, 293. 
 what constitutes such laches as will 
 deprive a party of his right to in- 
 junction against a company, 293, 
 294. 
 laches may deprive defendant of his 
 
 right to dissolve, 294. 
 on the effect of laches. Sup. 70. 
 jurisdiction of equity to restrain com- 
 pany not taken away because act 
 points out specific remedy, 295. 
 how general powers of act of parlia- 
 ment construed, id. 
 where act provides only discretionary 
 arrangement, Court will not inter- 
 fere, 296. 
 Court acts only as ancillary to legal 
 
 right, id. 
 course where legal right doubtful, 
 
 297. 
 Court influenced by consideration 
 which way the balance of danger 
 turns, i(i.. Sup. 70, 71. 
 whether contract between parties in- 
 terested against public work, and 
 those applying to parliament, to 
 withdraw their opposition, legal, 
 298. 
 clearly not illegal where contract 
 
 consistent with act, id. 
 whether contract entered into by 
 projectors of a company, who 
 afterwards become directors, binds 
 company, id. 
 where a company formed by the 
 union of two private companies is 
 bound by the agreement of the 
 projectors of one of the original 
 companies with an individual, 
 299. 
 where there is no equity arising from 
 one party withdrawing, on the 
 faith of the other doing certain 
 things, 301. 
 where agreement between landowner 
 being aiso a peer, to withdraw op- 
 position for a consideration, not 
 illegal, 302 et seq. 
 company not restrained from apply- 
 ing to parliament to alter its cha- 
 racter and objects, 304. 
 agreement between parties not to 
 k2
 
 132 
 
 INDEX. 
 
 PUBLIC COMPA'^y— continued. 
 
 oppose bill in parliaraeat, enforced, 
 Sup. 71. 
 but company restrained from convey- 
 ing property to new trustees, and 
 sunendering charter, when no 
 power in deed to alter constitution, 
 Sup. 71. 
 
 PUBLIC POLICY, agreement between 
 parties having expectations from 
 
 third party to divide what he shall 
 leave them, not inconsistent with 
 
 public policy, 14. 
 relief against bonds or other securities 
 
 for obtaining places in the public 
 
 service, on the ground of public 
 
 policy, 22, 23. 
 against bonds given for procuring 
 
 a will by undue influence, 23. 
 or for marriage brocage, id. 
 ground of interference on the latter 
 
 point, 24, 25. 
 where Court refuses to interfere 
 
 against instruments made in fraud 
 
 of public policy, 25 et seq. 
 general propositions resulting from 
 
 all the authorities on this point, 31, 
 
 Sup, 4. 
 literary work against, not protected 
 
 by injunction, 193. 
 
 PURCHASI:R.— See Vendor and Pur- 
 
 CHASER. 
 
 PURPRESTURE, what it is, 249. 
 injunction granted against, id. 
 
 Q. 
 
 QUALIFICATION. 
 
 conveyance to give colourable, to kill 
 
 game, 25. 
 to sit in parliament, id. 
 
 QUANTITY, as to eflect of, in ques- 
 tions of literary piracy, 196, 198, 
 Sup. 35, 36. 
 
 QUIETING POSSESSION, ancientju- 
 risdiction to grant injunctions for, 
 337. 
 practice fallen into disuse, id. 
 
 R. 
 
 RECEIVER will be protected against 
 acts in nature of waste, 179, Sup. 
 27. 
 
 at whose suit. Sup. 27. 
 
 against person not parly, Sup. 86. 
 
 REMAINDER, respective rights of re- 
 mainder-man and tenant for life 
 to timber, 140. 
 
 RESTRAINING ORDER, Sup. 83. 
 may be had under 4th section of 5 
 
 Vict. cap. 5, although distringas 
 
 obtained under 5th sect. Sup. 83. 
 not when distringas obtained before 
 
 the act, id. 
 does not fall merely on bill being 
 
 filed. Sup. 84. 
 
 REVIVING INJUNCTION. 
 See Practice, VIII. 
 
 ROAD BOOKS, doctrine of equity as 
 to copyright in, 201. 
 what evidence of piracy in respect of, 
 202. 
 
 SAILING OF SHIPS, injunctions to 
 restrain, 333. 
 
 granted at suit of part owner of un- 
 ascertained share of a ship, id. 
 
 secus, where not applied for till day 
 before ship was to sail, 334. 
 
 nor after appearance without notice, 
 
 id. . ... 
 
 whether grantable to restrain sailing 
 of ships in infringement of a char- 
 ter after verdict against defendant 
 for past trading, the answer being 
 insufficient, id. 
 
 whether granted to stop goods in 
 transitu, id. 
 
 SALE, STAYING, after decree for sale, 
 sale stayed under circumstances 
 until appeal heard, 339. 
 
 where sale by commissioners acting 
 under an enclosure act stayed, id. 
 
 sale of specific chattel stayed, 340. 
 
 other cases of slaying sale, id. 
 
 but trustees for sale not restrained 
 from selling on allegation that 
 sale premature, id. 
 
 so where doubtlul whether power of 
 sale good at law, yet no injunc- 
 tion if power not revoked in equity, 
 id. 
 
 no injunction to restrain voluntary 
 setilor from selling, 341. 
 
 equity will restrain sale, after ex- 
 piration of patent, of articles pira- 
 tically made during its existence, 
 226.
 
 INDEX. 
 
 133 
 
 SALE, STAYING— continued. 
 
 injunction granted to restrain hus- 
 band from selling his wife's term, 
 342. 
 
 decision doubtful, id. 
 
 mortgagee with power of sale not 
 restrained because no notice to 
 mortgagor, id. 
 
 secus, if power of sale in a trustee, id. 
 
 where no jurisdiction to interfere 
 against judicial sale of mortgaged 
 estate under process of colonial 
 Court, id. 
 
 where injunction against sale as be- 
 tween equitable and legal mort- 
 gagee, id. 
 
 Court will not in general interfere 
 to restrain assignees from selling 
 bankrupt's properly, 311. 
 
 SCANDAL, referring bill for, 350. And 
 see Practice, VI. 
 
 SECRET INVENTION, injunction not 
 granted in general to restrain use 
 or publication of, 228. 
 
 how where the knowledge obtained 
 fraudulently, 229. 
 
 where party instructed in a secret 
 recipe on the faith of an agree- 
 ment to carry on a business in the 
 manufacture of it, id. 
 
 whether injunction granted where 
 party contracts to keep a secret, 
 230. 
 
 SECURITIES, when void as obtained 
 under undue influence. Sup. 3. 
 See Bills; Bonds; Influence. 
 
 SEPARATE ESTATE.— See Husband 
 AND Wife. 
 
 SEQUESTRATOR, where bankrupt se- 
 questrator will be restrained from 
 acting under the sequestration, 
 314. 
 course of proceeding for and against, 
 332. 
 
 SERVICE, what service of injunction 
 regularly requisite. Sup. 94. 
 when substituted service ordered, id. 
 And see Practice; Breach of 
 Injunction. 
 
 SET-OFF, distinction between equitable 
 and legal, 74, Sup. 10 et seq. 
 
 SEWERS, commissioners of, a Court of 
 record, 247. 
 
 SEWERS— continued. 
 
 but equity has jurisdiction to inter- 
 fere against their acts, 247. 
 
 SHERIFF, sale by, when not restrained, 
 Sup. 9. 
 
 SHIP REGISTRY ACTS, no relief 
 against forfeiture of legal title to a 
 siiip, where forms of ship registry 
 acts not complied with, 93. 
 but equity will interfere between two 
 parties, one of whom has better 
 equity to assist him in obtaining 
 full legal title, id. 
 
 SOLICITOR, Court will open solicitor's 
 bill, even after payment, if fraud, 
 12. 
 
 secus, if only inaccuracy, id. 
 
 relief against annuity granted to wife 
 of solicitor, where granted under 
 influence of solicitor, 18. 
 
 claim of, for business, not such 
 matter of account as to justify 
 interference of equity to stay pro- 
 ceedings at law, 75. 
 
 where will be restrained from bring- 
 ing action against client, 130. 
 
 solicitor restrained from acting against 
 party from whose service he has 
 voluntarily discharged hiniself,268. 
 
 or from divulging information come to 
 his knowledge as solicitor, 269. 
 
 secus, as to divulging such informa- 
 tion in a court of justice, id. 
 
 not restrained from acting against 
 former client merely on account of 
 the relation which has subsisted, id. 
 
 extent of his right of lien on his 
 client's papers, 270. — See Spe- 
 cific Performanci;. 
 
 SPECIFIC CHATTEL, disposition of, 
 restrained where right in dispute, 
 181. 
 
 SPECIFICATION.— See Letters Pa- 
 tent. 
 
 SPECIFIC PERFORMANCE, party 
 holding under agreement for a 
 lease in general entitled to in- 
 junction in aid of specific per- 
 formance, 49. 
 
 where Court will not enjoin, id. 
 
 where plaintiff contracts for a lease 
 and assigns his interest, his in- 
 solvency no ground under circum- 
 stances for the landlord to refuse 
 specific performance, 50.
 
 134 
 
 INDEX. 
 
 SPECIFIC PERFORMANCE — con- 
 
 tiniied. 
 
 Court will not assist vendor where 
 there is doubt whether he will be 
 able to make a title, 51. 
 
 not necessary to show clear right to 
 specific performance ; sulficient 
 to show some colour of such right, 
 id. 
 
 where Court cannot see that a lease 
 granted under a power is clearly 
 not within it, an injunction will 
 be granted against ejectment, id. 
 
 injunction in cases of specific per- 
 formance is in aid only of a pre- 
 Slimed right to have specific per- 
 formance, 52, 53. 
 
 injunction where contract is not 
 performed in the time prescribed 
 by conditions of sale, 53. 
 
 injunction granted to restrain action 
 by purchaser for deposit, il he has 
 waived the objection by receiving 
 the abstract, 54. 
 
 secus, if he has at once taken and 
 adhered to the objection, id. 
 
 injunction where meaning and eflfect 
 of agreements in dispute, 55. 
 
 or the power of parties to bind their 
 successors, id. 
 
 or the description of the thing con- 
 tracted for, id, 
 
 DO injunction if an action com- 
 menced will obtain the judgment 
 of a Court of law on the entire 
 question, id. 
 
 injunction in aid of specific perform- 
 ance to restrain ringing an early 
 church bell, 251. 
 
 injunction to restrain breach of cove- 
 nant not to run a coach, id, 
 
 against vendor of land to restrain 
 conveyance of legal estate, 252, 
 Sup. 60. 
 
 injunction in aid of specific perform- 
 ance to re^train sale by party 
 having agreed to exchange, id. 
 
 general rule ih^it injunction not grant- 
 ed to control rights of ownership, id. 
 
 exception, •252. 
 
 where estate contracted to be sold 
 cannot be conveyed, injunction 
 not gianted to restrain sale to an- 
 other, 253. 
 
 when Court orders deposit to be paid 
 into Court, id. 
 
 when Court will support by injunc- 
 tion an instrument having no effect 
 at law, 253,254. 
 
 Court will not always interfere where 
 
 SPECIFIC PERFORMANCE— co/i- 
 
 tinued, 
 there may be damages at law, 253, 
 254. 
 
 ex parte injunction where clear 
 breach of covenant, 255. 
 
 secus, if there has been notice and 
 acquiescence, id. 
 
 injunction against breach of cove- 
 nant, though it does not run with 
 the land, Sup. 60. 
 
 creditors, under voluntary dead for 
 payment of creditors, cannot re- 
 strain trustees of a second and dif- 
 ferentdeed fromacling uponit,255. 
 
 where injunction granted to stay 
 proceedings under agreement to 
 refer, 256. 
 
 whether the Court interferes by in- 
 junction in support of an agree- 
 ment, unless it could compel per- 
 formance of the whole agreement, 
 id. et seq. ; Sup. 61, 62. 
 
 Court cannot compel performance of 
 substantive act, 260. 
 
 but will in certain cases by injunc- 
 tion specially worded, id, ; Sup, 
 64 et seq. 
 
 jurisdiction not approved in a late 
 case, 263. 
 
 result of the authorities that the 
 jurisdiction e.\ists, 265. 
 
 but will not be extended, id.; but 
 see the cases referred to, Sup. 64, 
 65. 
 
 Court will not exercise it to compel 
 carrying on a business, id. 
 
 but will restrain a party from so 
 dealing with his property as to 
 preclude himself from fulfilling 
 his covenants, 266. 
 
 effect of laches in preventing assist- 
 ance by injunction, 276. 
 
 to warrant injunction in aid of spe- 
 cific performance, party engaged 
 must be competent to bind him- 
 self, 277. 
 
 STATUTKS. 9 & 10 Will. 3, cap. 15, 
 (arbitration), 123. 
 
 8 Anne, c. 19 (copyright), 209. 
 
 9 Anne, c. 14 (gaming transactions), 
 4. 
 
 7 Geo. 2, c. 8 (stock jobbing). 
 40 Geo. 3, c. 36 (Bank of England), 
 370 
 
 1 & 2 Will. 4, c. 58 (interpleader 
 act), 327. 
 
 5 & 6 Will. 4, c. 41 (gaming trans- 
 actions), 4.
 
 INDEX. 
 
 STATUTES— crt)i(ini/e(i. 
 
 5 & 6 Will. 4, c. 65 (copyright in 
 
 lectures), 212. 
 1 & 2 Vict. c. 59 (international 
 
 copyright), 217. 
 5 it 6 \'ict. c. 45 (copyright act), 
 
 Sup. 32. 
 
 5 & 6 Vict. c. 100 (copyright in de- 
 signs), Sup. 39, 
 
 6 & 7 Vict. c. 65 (copyright in de- 
 signs), id. 
 
 5 Vict. c. 5 (distringas and restrain- 
 ing order), Sup. 83. 
 
 STEWARD, injunction against transfer 
 of stock purciiased by steward 
 when he has mixed his own with 
 his master's, 266, 267. 
 
 SUBPCENA.— See Practice, VI. VII. 
 
 SUITS, concurrent, 105, and Sup. 15.— 
 See Jurisdiction. 
 
 SURETY, where several persons become 
 sureties, 7. 
 
 where there is liability between them 
 and where not, id. 
 
 effect of creditor who has title against 
 a surety dealing wiih the principal 
 debtor so as to vary the position of 
 the surety, 38, 39. 
 
 when creditor gives time to a surety, 
 id. 
 
 rule between creditor and surety ap- 
 plies, though surety knows that 
 time has been granted to the prin- 
 cipal, 41. 
 
 but creditor cannot act and then 
 withdraw his act, id. 
 
 if surety makes fresh promise he 
 becomes liable, id. 
 
 surety cannot by his own act dis- 
 charge himself, id. 
 
 and the case is not altere<l by the 
 terms of the bond being indefinite 
 as to duration, 42. 
 
 injunction not maintained to protect 
 surety merely because a further 
 sum has been lent to the debtor, 
 43. 
 
 nor because obligee takes cognovit 
 from principal. Sup. 6, 
 
 TI:NANT for life.— See Waste, I. 
 tenant for life without iinpeachment, 
 see Waste, II. 
 
 TENANT IN TAIL.— See Waste. V. 
 
 TENANT IN TAIL AFTER POSSI- 
 BILITY.— Sec Waste, VII. 
 
 TENANT IN DOWER.— See Waste. 
 VIII. 
 
 TENANT BY THE CURTESY may 
 not commit waste. 162. 
 And see Waste, Vlll. 
 
 TENANT FOR YEARS.— See Waste, 
 VI. 
 
 TENANT IN COMMON.— See Waste, 
 IX. 
 
 TERMS, OUTSTANDING, where re- 
 moved out of the way of trial at 
 law, 317. 
 
 not where there is a rebutting equity 
 in party claiming the purely legal 
 title, 318. 
 
 general doctrine as to removing legal 
 impediments to fair trial of a right, 
 318, 320. 
 
 injunction against setting up out- 
 standing term not granted prior to 
 decree, 319. 
 
 sembte, if title of plaintiff is admitted 
 simpliciter, an injunction to re- 
 move outstanding term may be 
 granted on motion, 320. 
 
 though court will restrain setting up 
 outstanding teim, it will not where 
 term has prevailed set aside judg- 
 ment at law. Sup. 74. 
 
 TIMBER, bill for an account merely 
 will not lie where there is a re- 
 medy at law, 167. 
 secus, if the waste is purely equitable, 
 id. 
 
 TIMBER, ORNAMENTAL. 
 See Waste, II. 
 
 TITLE, LEGAL, when fraud in the 
 party from whom a legal title 
 passes will prevent him from ob- 
 taining injunction, 33. 
 
 Court will not restrain a party who 
 has not only the better legal title, 
 but also a good equity, 67. 
 
 in restraining infringement of copy- 
 right Court only acts as ancillary 
 to legal title, 192. 
 
 but though legal title not complete, 
 yet if equitable title clear. Court 
 will interfere, 196.
 
 136 
 
 INDEX. 
 
 TITLE, LEGAL— conliniied. 
 
 general rule as to putting legal 
 light in course of investigation. 
 Sup. 43. 
 right of parties to have a trial, Sup. 
 
 44. 
 course vphere plainiifT does not move 
 
 in time, 224 ; Sup. 44. 
 Court will not interfere against legal 
 title when there is a doubt of the 
 equity set up against it, 271. 
 where Court will interfere against 
 legal title of assignees of bank- 
 rupt, as such, 314. 
 general rule that Court will not grant 
 injunction in aid of legal right 
 where strong doubt whether such 
 right would be suppoited at law, 
 329, 330. 
 where Court will not interfere be- 
 cause right, if any, legal, Sup. 9. 
 plaintiff may move for leave to try 
 right without moving for injunc- 
 tion, Sup. 44. 
 what title requisite to sue for in- 
 junction against infringement of 
 copyright. Sup. 32. 
 practice as to putting defendant to 
 make admission where title sent 
 to law, Sup. 33. 
 
 TITLE, EQUITABLE, where contest 
 is between two equities Court 
 will not interfere against party in 
 possession under equitable title, 
 271. 
 
 TRADE, covenant in restraint of, 268 ; 
 Sup. 66, 67. 
 
 TRADE MARKS AND DESIGNA- 
 TIONS, Court interferes against 
 fraudulent use of another trades- 
 man's mark, or name, or reputa- 
 tion, 230; 6'ii/). 53 et saj. 
 
 but not of the name of a professional 
 man. Sup. 34. 
 
 court does not require imitation, 
 niodo et forma, to justify interfer- 
 ence, ^";>. 56. 
 
 injunction to restrain use of verses 
 attached to a medicine, 230. 
 
 so to restrain use of piratical labels, 
 231. 
 
 so to restrain use of letters used by a 
 patentee, id. 
 
 where coach proprietors fraudulently 
 imitate the marks and designations 
 of others, id. 
 
 injunction also granted where no 
 
 TRADE MARKS— co»tiJiwc<f. 
 
 fraud in the imitation of a trade 
 mark, 232. 
 whether taking a lease of works to 
 which paiticular trade marks at- 
 tached, entitles the lessee, after 
 expiration of the lease, to exclusive 
 right to such mark, 233. 
 TRANSFER OF STOCK, ground of 
 injunction against improper trans- 
 fer of stock, 335. 
 Bank of England not bound to look 
 
 beyond legal title to stock, id. 
 cannot restrain executor where no 
 specific bequest from selling or 
 transferring, 336. 
 nor w here doubtful whether a bequest 
 
 of stock specific or not, id. 
 Bank may be made parlies to suit to 
 
 stay transfer of stock, id. 
 but need not, id. 
 what course to be pursued, id. 
 where bill filed for injunction to re- 
 strain transfer of stotk and plain- 
 tiff's title denied, Court will not 
 order transfer on motion by de- 
 fendant, 337. 
 what course if plaintiff does not apply 
 for injunction, id. 
 TRANSLATIONS, copyright in, 213. 
 TRESPASS, former doctrine that injunc- 
 tion could not be granted to re- 
 strain, 181. 
 but might where there was collusion, 
 
 182. 
 so in the case of mines, 183. 
 doctrine extended to trespass in cer- 
 tain cases, id. 
 now constantly applied in case of 
 
 mines, 184. 
 principle as to trespass, what, id.. 
 
 Sup. 27, 79. 
 extended to taking stone from a 
 quarry for other purposes than 
 that for which party has right to 
 take it, 185. 
 so as to taking stones from the bottom 
 of sea, within the limits of a manor, 
 id. 
 common trespass not foundation for 
 injunction ; but may be if it ex- 
 tends to being nuisance, or de- 
 struction, 237, Sup.2S. 
 but where great mischief would result 
 to defendant, plaintiff must speedily 
 try the right, 186. 
 where no case of irreparable danger, 
 nor any ground for principle ap-
 
 INDEX. 
 
 137 
 
 TRESPASS — continueil. 
 
 plied to mines, Court will not 
 interfere, 186. 
 
 and as to mere trespass, old rule 
 remains in force, 187, Sup, 28. 
 
 on this principle, devisee cannot 
 restrain waste by heir-at-law dis- 
 puting the will, 188. 
 
 nor it seems can heir restrain devisee 
 who states will duly executed, id. 
 
 uor will Court restrain executors of 
 a will of personalty and realty, at 
 suit of heir at-law, unless suit de- 
 pending- to set aside will, 189. 
 
 pure trespass distinguished from tres- 
 pass under color of title. Sup. 28. 
 
 from cases where plaintiff out of pos- 
 session and title disputed, Sup. 
 28, 29. 
 
 no injunction when plaintiff out of 
 possession, and title in dispute, 
 Sup. 29. 
 
 discussion of the principle, Sup, 30, 
 31. 
 
 TRUST— TRUSTEES, injunction where 
 party bound by actual or implied, 
 266. 
 
 or where party is invested with fidu- 
 ciary character, id. 
 
 or has de Jacto a trust or confidence 
 reposed in him, id. 
 
 trustee restrained from using legal 
 powers for any purpose inconsistent 
 with trust. Sup. 66. 
 
 injunctions to restrain breach of co- 
 venants by articled clerks of soli- 
 citors. Sup. 66. 
 
 injunction against transferring stock 
 purchased by steward, where he 
 has mixed his own with his mas- 
 ter's, 267. 
 
 where dealings between tradesman 
 and customer may be the subject 
 of injunction, and where not, /(/. 
 
 trustees claiming assistance by in- 
 junction must show continuance 
 of trust, 272. 
 
 And see Wastf, XII. 
 
 U. 
 
 USURY, relief against, under the name 
 of partnership, entered into for 
 eluding the laws against usury, 31. 
 but not where the transaction is honu 
 fide, although interest higher tlian 
 legal interest be obtained, 31, 32. 
 
 VENDOR AND PURCHASEH, Court 
 will assist vendor where doubt 
 whether he will be able to make a 
 title, 51. 
 
 where purchaser restrained from 
 bringing action to recover deposit, 
 53. 
 
 where not, 54. 
 
 \V. 
 
 WAIVER, party refusing to take a lease, 
 
 no waiver of agieement for lease, 
 
 51. 
 what is and what is not waiver of 
 
 covenants, 91, 92. 
 what not waiver of right to move to 
 
 commit for breach of injunction, 
 
 ,S!</). 95. 
 
 WAf^TE, generally, all poisons whose 
 estates less than estates of inhe- 
 ritance, are liable for waste, 135. 
 no injunction against, where plaintiff 
 claiming title is out of possession, 
 Sup. 29. 
 
 I. By tenant for life. 
 
 tenant for life may not commit waste, 
 unless expressly unimpeachable, 
 136. 
 
 where two successive estates for life, 
 injunction may be granted to re- 
 strain waste in the fiist, id. 
 
 at suit of remainder-man, id. 
 
 or reversioner, id. 
 
 or second tenant for life, id. 
 
 injunction granted at suit of second 
 tenant for life, even if no tirst 
 tenant for life in esse, id. 
 • but tenant for life, though he may 
 
 not open new mines, may continue 
 working mines lawfully opened, id. 
 
 or may open shafts to admit air, 
 137. 
 
 whether tenant fur life impeachable 
 of waste may work clay pits which 
 i devisor had prepared to work, id. 
 
 j injunction granted at suit of as- 
 
 signee of a lease to stay waste in 
 underlessee, id, 
 
 injunction will be granted at suit of 
 trustees to preserve contingent re- 
 mainder, 138. 
 
 and it is their duty to restrain the 
 waste, id. 
 
 though trustees to preserve may and 
 ought to restrain waste by the 
 tenant for life, application may 
 L
 
 138 
 
 INDEX. 
 
 "WASTE— coiilinuciL ; 
 
 I, Bii tenant for life- conUnVLcl. j 
 
 be made by the ccitnis que trust, 
 139. . ; 
 
 where application made by parties 
 entitled to proceeds of sale of es- 
 tate, after death of tenant for life, 
 id. 
 
 what order the Court will make 
 where, until death of tenant in 
 possession, it cannot discover whe- 
 ther he had right to cut timber or 
 not, id. 
 
 respective rights of remainder- man 
 and tenant' for life to timber, 140. 
 
 II. By tenant for life without impeach- 
 
 ment. 
 what waste he may commit, 142. 
 may not commit destructive or mali- 
 cious waste, id. 
 will be restrained from cutting trees 
 standing in lines, avenues, or 
 ridings, 144. 
 or serving for shade or ornament, id. 
 or young saplings, id. 
 or underwood beloreit is of sufficient 
 
 growth, id. 
 formerly restrained from cutting or- 
 namental timber, whether planted 
 for ornament or not, if/, 
 but now not restrained unless timber 
 planted or growing for ornament, 
 id. 
 not sufficient that it is ornamental, 
 
 id. 
 principle as to ornamental timber, 
 
 145. 
 extent of order made to protect orna- 
 mental timber, id. 
 will not be extended to cutting tim- 
 ber " which contributes to orna- 
 ment," 146. 
 injunction will be granted to restrain 
 cutting down trees ornamental to 
 a mansion-house and park, al- 
 though tenant for life has power 
 to pull down the house, and has 
 exercised if, id.. Sup. 21. 
 will be granted to restrain cutting 
 trees on a distant common, if 
 planted or growing thereon for or- 
 nament of the estate, id. 
 whether if one act of equitable waste 
 be established, (Jourt will restrain 
 all equitable waste generally ; sem- 
 ble not, 147. 
 waste by tenant for life without im- 
 peachment, with special condition, 
 Sup. 22, 25. 
 
 WASTE — continued. 
 
 II. Bit tenant for life wilhintt impeach- 
 ment— conUaued. 
 injunction never granted on principle 
 that it will do no harm if defend- 
 ant dees not mean to commit the 
 act of waste, 147, Sup. 22. 
 tenant for life not expected to let 
 timber grow as long as tenant in 
 fee might find it his interest to do, 
 148. 
 small degree of waste by tenant for 
 life, or threat to commit waste, 
 sufficient for Court to act upon, 
 id. 
 but wheie acts of waste very small, 
 and defendant has ceased since 
 filing of bill, injunction refused, 
 148. 
 tenant for life not restrained from 
 cutting trees merely because they 
 are thriving, 149. 
 or because cutting them down would 
 
 injure the saplings, id. 
 it must be shown that they are unfit 
 
 to be cut as timber, id. 
 account of equitable waste against 
 representative of deceased tenant 
 for life, 175. 
 tenant for lives under renewable lease 
 will not be restrained in Ireland 
 from committing waste, 157. 
 unless express stipulation, id. 
 secas, if he owes arrears of rent, and 
 will not pay, id. 
 
 III. L'l/ lieir-at-law. 
 
 whetiier heir-at-law taking resulting 
 trust till the happening of a con- 
 tingent event may cut timber, 
 138. 
 
 IV'. Bu jointress. 
 
 will be restrained, unless she is ex- 
 pressly dispunishable, 149. 
 jointress in tail will not be restrained, 
 150. 
 
 V. Tenant in tail. 
 whetiier tenant in tail under act of 
 
 pailiament, restricted by it from 
 alienation will be restrained from 
 committing waste, 150. 
 
 VI. Jji/ tenant for years. 
 tenant for years ouyht not to commit 
 
 waste of any kind, 152. 
 
 may be lestrained at suit of remain- 
 derman for life, id. 
 
 but will not be restrained from work-
 
 IxNDKX. 
 
 139 
 
 WASTE — coniiimed. 
 
 VI. By teiiaut for years — continucil. 
 ing collieries, unless by express 
 covenant, 152. 
 where he is expressly dispunishable 
 of wa&te, will be only restiained 
 from destructive or malicious waste, 
 id. 
 dispunishable of waste as between 
 him and his lessor, may be re- 
 stiained as against third parties, 
 153. 
 where covenant held a contract, id. 
 and where a penalty, id. 
 where there is a covenant to manage 
 in a hiisbandlike manner, injunc- 
 tion will be granted against con- 
 verting plough land into pasture, 
 154. 
 semble, that injunction cannot be 
 grunted against waste on the mere 
 ground of converting meadow land 
 to other purposes, 154. 
 but may if there is an express cove- 
 nant, id. 
 principle that tenant must farm in 
 husbandlike manner extends to 
 tenant fiom year to year, 155. 
 tenant from 3'ear to year under cove- 
 nant to cultivate in a husbandlike 
 manner restrained from sowing 
 pernicious crops, id. 
 cases to the contrary, id. 
 observations on them, 156. 
 what constitutes ancient pasture, id. 
 in Ireland, tenant for years not re- 
 strained from cutting turf for his 
 own use, 157. 
 secus, if he cuts where his lease only 
 allows him a right of estover, 158. 
 equity enjoins acts of waste by tenant 
 
 for years in houses, id. 
 even in the absence of express agree- 
 ment again.st waste, ('</. 
 but lessee not restrained from carry- 
 ing on his trade, though it may 
 occasion injury, 159. 
 tenant restrained from destroying a 
 
 dovecot, id. 
 secus, as to presses, id. 
 tenant holding over, not of necessity 
 lestrained from doing acts which 
 would be waste under the lease, id. 
 covenant by lessee to deliver up in 
 good repair does not prevent in- 
 junction to restrain waste during 
 the term, id. 
 tenant for years of a bishop sans 
 waste restrained from destructive 
 waste, 171. 
 
 I \\'ASTE—co)itiii7ted. 
 
 Vll. Tenant in tail lifter poisiliilihi. 
 formerly doubted whetlier tenant in 
 tail after possibility could be re- 
 strained, 160. 
 now settled that tenant in tail after 
 I possibility, who has once been in 
 
 ! possession, may cut tiiiiber, id. 
 
 , and semble, that it is the same if he 
 
 I has never been tennnt in tail in 
 
 possession, id. 
 but will be restrained from malicious 
 and destructive waste, 161. 
 
 \ 111. Tenant in dcxcer. 
 tenant in dower may not commit 
 
 waste, 162. 
 nor tenant by the curtesy, id. 
 
 IX. Tenants in common. 
 equity will not interfere between, in 
 
 general, 162. 
 
 but where tenant in possession is in- 
 solvent, Court will interfere, id. 
 
 or where the waste amounts to mali- 
 cious destruction, id. 
 
 or if one tenant occupies as tenant to 
 the other, 163. 
 
 X. Mortgagor. 
 will be restrained from cutting tim- 
 ber, but it must be sworn that the 
 land is a scanty security without 
 the limber, 163, Sup. 23. 
 
 what is a scanty security, Snp. 23. 
 
 will not be restrained from cutting 
 underwood, unlessa bankrupt, 163. 
 
 but may from cutting it contrary to 
 the usual course of husbandry, id. 
 
 puichaser under a contract is owner, 
 and vendor equitable mortgagee ; 
 and purchaser will be restrained 
 from destructive waste, 164. 
 
 restrained in foreclosure suit, though 
 bill does not pray injunciion. Sup. 
 24. 
 
 representative of mortgagor of per- 
 sonally, domiciled abroad, not re- 
 strained from sending assets abroad. 
 Sup. 26, 27. 
 
 XI. Mortffogee. 
 in possession lestrained from cutting 
 
 timber, when, 164. 
 not bound to leave buildings, after 
 long possession, as good as he 
 found them, id. 
 
 XII. Trustees. 
 whether express or constructive, may 
 
 not commit waste, 164.
 
 140 
 
 INDEX. 
 
 WASTE — contimied. 
 
 XIII. Copyhold. 
 
 injunction granted at suit of copy- 
 liolder to restrain lord from open- 
 ing mines, 168. 
 
 distinction between opening mine, 
 and working one already opened, 
 rd. 
 
 lord may have injunction against te- 
 nants of the copyhold lands, id. 
 
 but if lord has stood by and allowed 
 mines to be opened, equity will 
 not interfere, 169. 
 
 XIV. Ecclesiastical Corporations, 
 
 a parson may not commit waste, 
 
 169. 
 but may work mines already opened, 
 
 id. 
 or may cut timber, or dig stone to 
 
 repair, id. 
 and sell the timber and stone for 
 
 repairing, id. 
 ecclesiastical corporation cannot cut 
 
 timber, except for repairs, 170. 
 parson entitled to botes for repairing 
 
 barns and outhouses belonging to 
 
 parsonage, 171. 
 and by the custom of the country 
 
 may cut underwood for any pur- 
 pose, id. 
 but may not grub it up, id. 
 when may plough up pasture, Sup, 
 
 24. 
 tenants of ecclesiastical corporations, 
 
 as to their right to commit waste, 
 
 strangers, and cannot I'estrain 
 
 them, 171. 
 
 WASTE — co7tiiitncd. 
 
 XIV. Ecclesiastical Corporations — con- 
 tinued. 
 patro7iess of rectory may obtain in- 
 junction, though living vacant, id. 
 tenant for years of bishop sans waste 
 restricted from deslructivve waste, 
 id. 
 
 X\ . Permissive xcaste. 
 
 wiiether injunction will be granted 
 
 to restrain, 172 et seq. , 
 weight of authority against injunction 
 
 being granted, 174. 
 doctrine at law concerning permissiv 
 waste, 174, 175. 
 
 XVI. Executor or Administrator, 
 injunction against executor getting 
 
 in assets, where, 176. 
 
 against feme executrix, where hus- 
 band abroad, id. 
 
 against representative of person dying 
 domiciled abroad, to restrain send- 
 ing assets abroad. Sup. 27. 
 
 XVII. Partners. 
 
 acts between partners in nature of 
 
 waste restrained, 180. 
 partner restrained from disposing of 
 
 partnership stock, where, id. 
 where not, id, 
 injunction to restrain treasurer of 
 
 friendly society from paying the 
 
 annuities, /(/. 
 
 WINDOWS.— See Nuisanci; ; Ancilnt 
 Lights. 
 
 London : Printed by C. Roworth and Sons, Bell Yard, Temple Bar. 
 
 X 
 
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