I IHIIIIIMM (Snrnell Caai §rl)nnl ffitbrarg Cornell university Library KF 9014.K41 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020195818 A TREATISE ON THE LAW AND PRACTICE INJUNCTIONS IN EQUITY BY WILLIAM WILLIAMSON JKEEE, OF LIHOOLN'S IHJJ, BAEKISTBE-AT-LAW. edited, with notes and ebfeeences to amekican cases, By WM. a. HERRICK. BOSTON: LITTLE, BROWN, AND COMPANY. 1871. Entered according to Act of Congress, in the year 1871, by LITTLE, BEOWN, AHD COMPANY, In the Office of the Librarian of Congress at Washington. ADYEETISEMENT. This Edition of ^Kferr on Injunctions in Equity is a reprint of the English eiiition .with the a^uthor's addenda et corrigenda inserted ifi the proper places in the text and notes. The Editor has prefixed to the chapters and sections of the author a considerably minute analysis of the same, and made such notes and references to American cases as he thought would serye to make the work more acceptable to American lawyers. The English cases which have been reported since the publication of the English edition are added to the original notes and not distinguished from them. SUMMARY OF CONTENTS. THE FIGURES KEFEE TO THE STAK PAGISG. Table of Cases cited xi Table of Statutes eeferked to lix CHAPTER I. The Nature and the Limits of the Jurisdiction of THE Court of Chancery 1-10 CHAPTER II. Injdnctions in General 11-12 CHAPTER HI.' Inoxtnctions to restrain Proceedings at Law . . . 13-30 CHAPTER IV. Equitable Grounds for Relief against Proceedings AT Law 31-136 Section 1. — Fraud 31-52 Section 2. — Mistake 52-55 Section 3. — Accident 55-57 Section 4. — Account 57-63 Section 5. — Equitable Set-off 64-68 Section 6. — Marshalling Securities 69-70 Section 7. — Suretyship . 70-79 Section 8. — Penalties and Forfeitures 79-98 Section 9. — Equitable Assignment 99-102 VI SUMMARY OP CONTENTS. Page Section 10. — The Prevention of Vexatious Litigation 103-136 Election between Suit and Action, 103. Injunctions after the Court is in Possession of a Cause, 103-107. Injunctions against Creditors after Decree for the Administration of Assets, 107-118. Interpleader, 118-132. Perpetual Injuuctions, 132-134. Bills of Peace, 134-136. CHAPTER V. Injunctions against Proceedings at Law upon and in Eespect op Foreign Judgments 137-139 CHAPTER VI. Injunctions in Respect op Awards 140-143 CHAPTER VII. Injunctions against Proceedings at Law against or BY the Officers of the Court 144 CHAPTER VIII. Injunctions to restrain Proceedings in the Admi- ralty Court, the Lord Mayor's Court, the Pro- bate Court, and the Courts of a Foreign Country 148-160 CHAPTER IX. Injunctions against Executors 161-163 CHAPTER X. Injunctions between Partners 164-170 CHAPTER XI. Injunctions against Trustees 171-176 SUMMARY OF CONTENTS. Til CHAPTER XII. Page Injunctions against the Disclosure op Confidential Communications, Papers, Secrets, etc 177-181 CHAPTER XIII. Injunctions against the Publication op Manuscripts, Letters, and other Unpublished Matter . . . 182-190 CHAPTER XIV. Injunctions between Mortgagor and Mortgagee . 191-195 CHAPTER XV. Injunctions against the Violation op Common Law Rights 196-234 Section 1. — The Protection of Legal Rights to Prop- erty pending Litigation 196—216 Section 2. — Trial of Questions of Law and Fact on which Title to Relief in Equity de- pends. Damages 216-224 Sections. — Perpetual Injunctions, 224-230. Man- datory Injunctions, 230-232 Section 4. — Injunctions under the Common Law Procedure Act, 1854 232-234 CHAPTER XVI. Injunctions against Waste 235-286 Section 1. — Principles on which the Court acts in re- straining Waste 235-238 Section2.— Legal Waste 238-255 Sections. — Persons for and against whom Injunc- tions are granted 256-267 Section4.— Equitable Waste . . ; 267-277 Section 5. — Property in Timber cut by the Order of the Court, or accidentally severed, &c. Account 277-286 VIU SUMMAET OP CONTENTS. CHAPTER XVII. Page Injunctions against Trespass 287-331 CHAPTEE XVIII. Injunctions against Nuisance 332-399 Section 1 . — Principles on which the Court acts in restraining Nuisance 332—350 Section 2. — Nuisances to Dwelling-houses and Houses of Business 850—366 Section 3. — Nuisances to Support 366-377 Section 4. — Nuisances relating to Water .... 377-395 Section 5. — Purprestures. Nuisance to Navigable Tidal Waters 395-397 Section 6. — Various Nuisances 398-399 CHAPTER XIX. Injunctions against the Infringement of Patents . 399-438 Section 1 . — Principles on which the Court restrains the Infringement of Patents . . . 393-407 Section 2. — Trial of Issues 407-409 Section 3. — Patent Rights 409-429 Section 4. — Infringement of Patents 429-433 Section 5. — Inspection. Account. Damages, &c. . 433-438 CHAPTER XX. Injunctions against the Infringement of Copyright 439-473 Section 1 . — Principles on which the Court restrains the Infringement of Copyright . . 439-445 Section 2. — Copyright in General 445-446 Section 3. — Literary Copyright 446-462 Section 4. — Dramatic and Musical Copyright . . 462-464 Section 5. — Copyright in Prints, Engravings, Sculp- tures, Photographs, &c 464-466 Section 6. — Copyright in Designs 466-470 Section 7. — International Copyright 470-472 Sections. — Account. Costs, &c 472-473 SUMMARY OF CONTENTS. IX CHAPTER XXI. Page Injunctions to bestrain the Piracy of Trade-Mares 474-491 CHAPTER XXII. Injunctions n Respect of Covenants or Agreements 492-540 Section 1. — Injunctions against Breach of Covenant or Agreement 492-535 Section 2. — Injunctions in Aid of Specific Perform- ance 535-539 Section 3. — Injunctions against Actions at Law upon Covenants 539-540 CHAPTER XXIII. Injunctions against Incorporated and Other Com- panies 541-569 CHAPTER XXIV. Injunctions against Corporations 570-577 CHAPTER XXV. Injunctions for or against Judgment Creditors . . 578-582 CHAPTER XXVI. Injunctions in Matters of Bankruptcy 583-586 CHAPTER XXVII. Injunctions to restrain setting up Terms ok other Impediments to the Fair Trial of a Right . . 587-589 CHAPTER XXVIII. Injunctions to stay Wrongful Acts of a Special Nature ' . . 590-604 SUMMARY OP CONTENTS. CHAPTER XXIX. Page Practice 605-646 Section 1. — In what Manner Injunctions are obtained 605-625 Section 2. — Dissolution of Injunctions 626-632 Section 3. — Effect of certain Proceedings on Injunc- tions 632-636 Section 4. — Continuing or granting Injunctions at the Hearing 636-637 Section 5. — Consequences of the Breach of an In- junction or Restraining Order . . 637-646 General Index 671 TABLE OF CASES CITED. A. Page Abbott V. Stratten 580 Aberdeen Railway Co. v. Blaikie 45 Abernethy ;;. Hutchinson 177, 184, 189, 190 Abingdon, Earl of v. Thornhill 608 Ableman v. Roth 16 Abraham v. Bubb 236, 259, 269 V. Great Northern Railway Co. 320 Acherly v. Vernon 132, 606 Acktoyd v. Briggs 208, 237, 258 V. Mitchell 262 V. Smith 337 Acland v. Attwell 266 Acraman v. Bristol Dock Co. 611 Acton V. Blundell 389 V. Woodgate 173 Adair v. New River Co. 135 Adams v. London & Blackwall Railway Co. 306, 308 Adamson, Re 414, 416, 418 V. Hall 633 V. Wilson 622 Addis V. Knight 66 Adley v. Whitstable Co. 547 African Steamship Co. v. Swanzy 150 Agar's Case 298, 299 Agassiz V. Squire 50 Agra & Masterman's Bank v. Hoff- man * 64 Aliearne v. Hogan 48 Ainslie v. Sims 154, 159 Ainswortht;. Bentley 200, 442, 443, 495, 503 V. Walmsley 229, 475, 477, 486, 487 Albert, Prince v. Strange 177, 182, 183, 184, 458, 628 Aldborough, Earl of v. Trye 48 Alder v. Fouracre 166 Aldis V. Eraser 60, 294 Aldred's Case , " 354, 360, 382 Aldrich v. Cooper 69 V. Howard 340 V. Martin 77 Aldrich v. Thompson 131 Aldridge v. Mesner 131 Alexander v. Crystal Palace Rail- way Co. 313 V. Duke of Wellington 102 V. Godley 240 V. Hammond 494 V. M'Kenzie 450 Algar V. Murrell 21, 92, 94 Allan V. Inman 20, 33, 70 Allard v. Jones 611 Allen V. Board of Freeholders 334 V. Carver 241, 242 V. Curtis 570 V. Davis 16, 33, 134 V. Donnelly 135, 136, 396 V. Kilbre 169, 585 V. Macpherson 152 V. Pearce 628 V. Provost of Rutherglen 398 V. Rawson 414 V. Talbot 555 AUfrey v. AUfrey 61 Allison V. Herring 58 Alston V. Eastern Counties Rail- way Co. 310 Ambrose v. Dunmow Union 147, 495 V. Mott 105 Ambury v. Jones 29 Araelung v. Seekamp 332 Ames V. Birkenhead Docks 145, 146 Amhurst v. Dawling 194, 601 Amies v. Kelsey 433, 434 Anderson v. Anderson 168 V. Bailey 93 V. Commissioners 544 V. Dowling 15 V. Kimshead 152, 580 V. Noble 18, 58, 62 V. Wallace 169 Anderton v. Yates 616 Andover, Lady v. Robertson 524, 532, 533 Andrews v. Hulse 97, 261 V. Lupton 30 Angell a. Hadden 119, 120, 122, 124, 131 V. Smith 146 xu TABLE OP CASES CITED. Angell V. Westoomb 29 Angerstein v. Hunt 245, 639 Angier v. May 621, 681 Anglo-Australian Insurance Co. v. British Provincial Ins. Co. 559 Anglo-Danubian, &c., Co. k. Rog- erson 622 Annesley v. Muggridge 537 V. Rookes 23 Annunciator Co. v. Sanderson 400 Anon. 99, 150, 151, 164, 171, 398, 593, 597, 598, 603, 612, 614, 619, 638, 641 V. Bridgewater Canal Co. 619 V. Bozon 595 Anwyl V. Owens 289 Apperley v. Page 550 Apperson v. Ford 604 Arbuthnot v. Norton 101 Arcedeckne v. Kelk 354 Archbold v. ScuUy 206, 588 V. Sweet 478 Archer v. Hudson 45 V. Margh 508, 512, 513 V. Morse 152 Ardglasse v. Muschamp 48 V. Pitt 46 Arkwright v. Colt 252 V. Gel! 884, 387 — V. Gryles 591 Armitage v. Walker 142 Armitstead-u. Durham 20, 346, 347, 348, 572, 605, 624 Armstrong v, Courtney 495, 525 V. Sanford 613, 617 V. Waterford and Limerick Railway Co. 308, 310 Arnold v. Bainbrigge 108 Arrowsmith v. Hill 144 Arthington v. Fawkes < 136 Ai-thur V. Case 381 V. Lambe 258 Arundell, Corporation of «. Holmes 15 Arundell, Lady v. Phipps 21, 594 Ashby V. Jackson 29 Ashley v. Wolcott 389 Ashurst V. Mill 55 Ashworth v. Browne 396 Ashworth's Case 68 Askew V. Poulterers' Co. 132 — V. Townsheud 133, 633, 637 Aspden v. Austin 500 Aspinwall v. Leigh 277 Astley V. Manchester, Sheflfield, & Lincolnshire Railway Co. 546 V. Weldon 515 Aston V. Aston 257, 268, 269, 271, 274, 275 V. Heron 144 Atkins V. Eevell 74 Atkinson, Re 585 V. Grey 162 Atkinson v. Henshaw V. Leonard V. Plummer V. "Works Pago 162 6,56 584 120 Atkyns v. Kinneir 510, 511, 513, 516 Atterbury v. Jarvie 67, 68 Att.-Gen. v. Ancaster, Duke of 606 V. Andrews ' 557, 574 V. Aspinall 6, 171, 200, 572 — V. Avon, Portreere of 570, 571 V. Belfast, Corporation of 570, 573 V. Berridge 396 V. Birmingham, Borough of, 197, 204, 230, 331, 339, 342, 346, 385, 394, 534, 541 V. Birmingham, &c., Derby Railway Co. 543 V. Birmingham & Oxford Railway Co. 543 V. Boyle 398, 638 V. Bradford Canal, Propri- etors of 197, 214, 226, 349, 350, 395 V. Brandreth 576 V. Brazenose College 576 V. Briggs 93, 202, 227, 504 V. Brooksbank 61 V. Carmarthen, Corporation of 670 V. Carrington, Lord 175 ; V. Cashel, Corporation of 570 V. Chamberlaine 395 V. Chambers 328 V. Charles 623 V. Church 574 V. Cleaver 297, 334, 362 V. Cock 576 V. Colney Hatch Lunatic Asylum 366 V. Compton 207, 350, 578, 576 V. Cuming 173, 577, 602 V. Daniel 574 V. Dorset Central Railway Co. 322 V. Doughty 354 vt Dublin, Mayor, &c., of 570, 571 V. Dudley, Lord 576 V. Eastern Couiities Rail- way Co. 211, 320, 321, 822 V. Eastlake 238, 553, 574, 575 V. Ely H. & S. Railway Co. 561 • V. Etheridge 174 V. Forbes 198, 297, 335, 847, 398 V. Forster 174, 571 V. Foundling Hospital 171, 575, 576 V. Fowler 576 V. Gardner 173 V. Gaunt 575 V. Gee 382 TABLE OP CASES CITED. xm Page Att.-Gen. v. Great Northern Rail- way Co. 321, 334, 542, 543, 544, 649, 640, 645 V. Great Western Railway Co. 320 • V. Great Yarmouth, Corpora- tion of , 572 V. Grocers' Co. 619 V. Haberdashers' Co. 633 V. Hallett 293 V. Hardy . 194 V. Hutton 174 w. Johnson 335, 348, 350, 396 V. Kingston, Mayor, &c., of 339, 348, 396 V. Lewis 614 V. Lichfield, Bishop of 173, 577, 602 V. Lichfield, Corporation of 672 ■ V. Liverpool, Corporation of 672, 608, 628 V. Lock 576 V. London, Corporation of 301 V. London & Southampton Railway Co. 320, 321 V. London & South West- ern Railway Co. 322, 624 V. Luton Board of Health 204, 348, 384, 385, 394 t/. Manchester & Leeds Railway Co. 9, 211, 232, 330, 398, 038 V. Marlborough, Duke of 259, 280 V. Metropolitan Board of Works 232, 335, 342, 346, 348 V. MoUand 676 V. Munro 174 V. Murdoch 174 V. Murray 609 V. Newbury, Corporation of 676 V. Newcombe 174, 571 V. NichoU 332, 338, 351, 353 V, Norwich, Corporation of 673 V. N. J. R. & Trans. Co. 334 V. Oxford, Worcester, & Wolverhampton Rail- . way Co. 543 V. Parmeter 396 11. Pearson 174 V. Plymouth, Mayor of 350, 388, 392, 573, 674, 675 V. Poole, Corporation of 572 V. Powis, Earl of 677 V. Price 576 V. Richards 396 V. Richmond 348 V. Sheffield Gas Co. 1, 2, 3, 196, 197, 199, 203, 206, 297, 298, 332,^33, 334, 335, 336, 337, 338, 339, 350, 398, 607, 635 Page Att.-Gen. v. Sherborne School 576 V. Shore 173 • — 11. Smythies 575, 576 V. Southampton, Guardians of Poor of 573 V. Southampton, Mayor, &c., of 398 V. Stawell 244 V. St. Cross Hospital 173, 575, 576 V. St. John's Hospital 670 V. Tewkesbury & Malvern Railway Co. 317, 318, 321 V. Thames, Conservators of 231, 334, 335, 340, 343, 346, 348, 397, 398 V. Thetford, Corporation of 574 V. United Kingdom Elec- tric Telegraph Co. 199, 207, 298, 336 V. Utica Ins. Co. S8t V. Welsh 173 • V. Wigan, Mayor, &c., of 197, 557, 572, 673, 574 V. Wilson 671, 572 V. Wright 611 Attwood V. Banks 153 V. Barham 25, 537, 538 V. Small 37, 38 Atwill V. Ferrett 450, 466 Austen v. Boys 168 Austin V. Chambers 46 — V. Lambeth Vestry 346, 572 Australasia, Bank of v. Nias 137, 138 Australian, &c., Co. v. Mounsey 559 Avanzo v. Mudie 465, 466, 471 Avery v. Langford 507, 510, 511, 512 Axe V. Clarke 642 Aylett V. Dodd 80, 615 Ayre's Case 23, 24 Babeock v. New Jersey Stock Yard Co. 12 Back V. Stacy 362 Backhouse v. Hunter 151 Bacon a. Jones 196, 209, 225, 227, 400, 403, 406, 608, 637 Badeau v. Rogers 120, 125 BagnaH w. London & North West- ern Railway 374 Bagot t). Bagot 228, 237, 240, 241, 281, 282, 283, 286 Bagshaw v. Eastern Union Rail- way Co. 549, 554 Bailey v. Birkenhead, Lancashire, & Cheshire Junction Railway Co. 567, 668 V. Devereux 144 XIV TABLE OF CASES CITED. Bailey v. Edwards • V. Lloyd 71, 72, 73, 78 499 Baily v. Taylor 228, 284, 435, 441, 443, 472, 637 Baird v. Fortune 384 V. Monkland Iron & Steel Co. 390, 391 V. Neilson 424 V. Williamson 390, 391 Baker v. Bradley 46 V. Harwood 589 V. M'Clellan 636 V. Mellish 587 V. Monk • 43 Baldwin i'. Baldwin 65, 67 V. City of Buffalo 572 V, Society of Useful Knowl- edge' 524 Ball V. Ball 599 V. Mannin 44 V. Storie 55, 139 Balls V. Margrave 17 V. Strutt 171 Bamford v. Creasy 84, 92 V. Turnley 361 Bancroft v. Went worth 50 Banfield, Ex parte 107 Bank of Bellows PaUs v. E. & B. Railroad 14, 15 the Bepublic v. Baxter 35 United States v. Daniels 52 Bankart v. Houghton 202, 204, 226, 227, 362 ■ Banks v. Carter 206 V. Gibson 167, 168, 479 Bannister v. Bigge 366 Banwen Iron Co., Re 621 Barefoot v. Fry 134 Barfield v. Nicholson 443, 450, 503, 532, 641 Bargate v. Shortridge 23, 49, 546, 548 . Bargent v. Thompson 86, 92 Barker v. Barr 29 V. Braham 64 V. Goodair 152 V. North Staffordshire Rail- way Co. 206, 211, 294, 298, 308, 309, 310, 311, 313, 608, 618, 627 V. Smark 108, 106, 192 Barkley v. Barkley 600 Barnard v. Wallis 19, 24, 42, 202 Barnardiston ;;. Fane 97 Barney v. Luckett 589 Barnsley Canal Co. v. Twibell 153, 342, 874, 626 Barnwell v. Barnwell 578 Barr, Re 101 Barr v. Wiggins 105 Barren v. Sabine 82 Barrett v. Barrett 240 V. Blagrave 227, 496 Barrett v. Hall V. Hartley Barrett's Case Barrow v. Barrow V. Richard Page 410, 430 44 86,37 55 505 Barry v. Barry 198, 236, 237, 238, 268, 274 V. Crosskey V. Donnellan V. Stevens Bartholomew v. Yaw Bartlett v. Bartlett V. Philipps V. Salmon Barton v. Blakemore V. Chambers Barton's Case Barwell v. Brooks Barwick v. Reade Basket v. Cunningham 6, 7, 28, 32, 36 590 58 16 101 266, 267 32, 33, 39 618 621 95, 546 361 101 402, 461 University of Cambridge 461 Bassett v. Company V. Nosworthy Bate V. Hooper Bateman v. Boynton ). Hotchkin 340, 385 588, 53 153 241, 281, 282 ■ V. Mid- Wales Railway Co. 559 V. Moore V. Ramsay V. Wiatt V. Willoe Bates V, Brothers V. Graves Bath and Montague's Case Bath, Earl of «. Sherwin Bathe v. Bank of England Bathurst v. Burden V. Kearsley 429, 430 17, 201 624, 639 22, 23, 54 582 133 498, 499 134, 136 161 354, 522 462 Battersea Park Act, Re Arnold 307 Batty V. Chester !). Hill Baxendale v. Scale Baxter v. Combe V. Taylor V. West Bayliffe v. Butterworth Baylis v. Grout V. Watkins Bayne v. Ferguson V. Walker Beadel v. Perry Beal V. Warren Beale v. Saunders Bealey v. Shaw Bean v. Smallwood Beanland v. Bradley Bear v. Smith Beard v, Dennis V. Egertou V. Travers V. Turner 17, 51, 207, 480, 487 53 401, 410, 411, 424 502 168 501 180 216, 217 46 56 Addenda 50 250 379, 881, 382, 383, 885, 386 411 47 118 507 412, 418, 414, 423 598 477, 483 TABLE OP CASES CITED. XT Page Beardmer v. London & North Western Railway Co. 216, 317, 318, , 321 Beardmore v. Treadwell 361 Beardsley v. Knight 52 Beauchamp, Earl of w. Darby 153, 348 V. Lord Huntley 155 Beasley v. D'Arcy * 66, 68 Beaufort, Duke of v. Bates 253 V. Glyn 537 V. Morris 209, 213, 225, 340, 890 V. Neeld 6, 54 V. Patrick 42 Beauman v. Kinsella Beaumont v. Bradley Bechtel v. Carslake Beck V. Dean ■ V. Rebow 55 617 49 254 106, 156 49 429 Beckford v. Kemble Beckley v. Newland Bedford «. Hunt Bedford, Duke of v. Trustees of British Museum 496 & Cambridge Railway Co. V. Stanley 563, 564 Beaching v. Lloyd 551 Beer v. Ward 177, 179 Beere v. Hoffmeister 50 Beeston v. Weate 384, 387, 395 Belding v. Read 100 Belknap v. Trimble 386 Bell u. Hull & Selby Railway Co. 211, 296, 322, 611, 627, 628, 632 V. Hunt 120 V. Midland Railway Co. 42, 322, 325, 337, 398 V. O. & Penn. Railroad 337 V. Purvis 617 V. Sierra Nevada Co. 9, 656, 557 V. Walker 457 V. Whitehead 453 V. Williams 16 V. Wilson 198, 247, 280, 281, 283, 617 Bellamy v. Burrow 50 V. Sabine 46 Bellott, Re 105 Belmore v. Belmore 113, 115 Beman v. Rufford 210, 211, 548, 554, 558 Benfleld v. Solomons 596 Benham v, Keane 578 V. Duke of Manchester 134 Ex parte 45, 46, 82 V. Griffiths • 329 V. Vade 32, 33 Bennet's Case 548 Bennett v. Judson 50 Bennison v. Cartwright 357 Bennitt v. Whitehouse 3'28, 433, 434 Benson v. Gibson V. Heathorn Page 81 143 Bentinek v. Norfolk Estuary Co. 319 V. Willinck 19, 20, 617 Bentley v. Bates 285 V. Craven . 45 V. Fleming 418 V. Mackay 52 Benwell v. Inns 508, 510, 512 Benyon v. Nettlefold 28 Berdoe v. Dawson 46 Bere v. Havelock 102 Berkhampstead School, Ex parte 575, 576 Bermondsey, Vestry of v. Brown 297, 298, 398 Bernard v. Meara 495, 522, 625 Berne, City of v. Bank of England 2 Berney v. Sewell 195 Berriman v. Peacock 240, 282 Berrisford v. Milward 41 Berry v. Heard 280 Besemeres v. Besemeres 615, 618 Best V. Drake 293 V. Hayes 120, 124 Betts V. Barton 611 V. Burch 515 V. Clifford 216 V. De Vitre 221, 224, 404, 436, 437 V. Menzies 402, 416, 417, 418, 427, 428 V. Neilson 432 V. Walker 429 Betts's Patent 417 Bevan v. Lewis 169 V. M'Donnell 44 Bewick v. Whitfield 277, 278, 280 Bewley v. Hancock 412, 413 Bickett V. Morris 377, 378, 391 Bickford v. Skewes 401, 405, 632 Bidder v. Croydon Board'of Health 394 Biddle v. Jackson . 598 Biddulph V. St. George's Vestry 335, 340, 346, 366 Bigelow V, Hartford Bridge Co. 334 Biggs V. Head 178, 179, 180 V. Terry 599 Bignold •■. Audland 124, 127, 129 , Ex parte 61 Bill V. Cureton 172, 594 Billage v. Southee 28, 24, 47 Bingham v. Bingham 52 Bingley v. Marshall 223 Binney v. Ince Hall Coal & Cannel Co. 567 Birch V. Corbin 130 V. Oldis 146 V. Walsh 641 Bird V. Brancker 642 V. Lake 208, 509, 514, 515, 519 614, 616, 62S XVI TABLE OP CASES CITED. Bird V. Littlehales ■ V. Eelpli 599, 600 250, 265 Birkenhead Docks, Trustees of v. Laird 302 Birley v. Chorlton-on-Medlock, Constables of 304, 347 Birmingham Canal Co. u. Lord Dudley 371, 374 V. Lloyd 203 Bishop V. Banks 362 V. Church 65 V. Elliott 254 V. North 325 Bishopp V. Bishopp 278 Bissell V. Beckwith ' 15 Blachford v. Christian 44 Black V. Ottoman Bank 76 Blackall v. Coombs 23, 54 Blacketer v. GUlett 398 Blackett v. Bates 492, 521 V. Bradley 367 Blackmore v. Glamorganshire Eail- way Co. 615 Blackwell v. Harper 465 V. Redman 50 Blad V. Barafield ' 133 Blagden, Ex parte 64 Blagrave v. Blagrave 256, 257 V. Eouth 61 Blair v. Bromley 33 Blake v. Blake 637 V. Peters 237, 252, 259, 284 V. Wallseourt 599 V. White 72 Blakemore v. Glamorganshire Rail- way Co. 201, 208, 230, 298, 299, 394, 534 Blakesley v. Johnson 16 Blanchard v. Baker 385 V. Cawthorn 293 Blantyre, Lord v. Dunn 382, 387, 389 Blennerhassett v. Day 93, 97, 588 Blest V. Bro^n 71 Blewett V. Jenkins 243 Bliss V. Boscawen 634 V. Smith 57, 58, 60 Blissett V. Daniel 165, 169 Blofield V. Payne 480, 485 Blomfield v. Eyre 587, 605, 607, 637 Blood V. Keller 42 Blo:jam v. Elsee 413, 429 Bluck V. Mallalue 554 Blundell v. Gladstone 147 Boaler v. Mayor 73, 75 Boardman v. Mostyn 538 Bodger v. Bodger 618 Bogey V. Shute 235 Bogue V. Houlston 447, 465 Bohn V. Bogue 213, 439, 443, 452, 454 Bolton, Duke of v. Williams 121 Bonaparte u. Cam. & Am. Rail- road 332 X Page Bonar v. Macdonald 70, 71 Bond V. Hopkins 4, 15, 43, 587 Bonnafee v. Williams 3 Bonnett v. Sadler 251, 505 Bonomi v. Backhouse 366, 367, 368 Bonser v. Cox 70, 71, 76 Bookless V. Crummach 113, 117 Boosey v. Jefferys 187, 445 V. Purday 451 Booth, Ex parte 584 V. Booth 191 V. Kennard 412y 420 V. Lord Leycester 156 Borell V. Dann 47 Borgiiis V. Edwards 505 Borrowman v. Rossell 27, 55 Bostock V. North Staffordshire Railway Co. 366, 545, 546, 548 Boston V. Richardson 118 & Lowell Railroad v. Salem & Lowell Railroad 542 & Maine Railroad v. Bab- cock 536 Water Power Co. v. Gray 143 Boucer, Ex parte 583, 584 Boucicault v. Delafield 446, 471 Boultbee v. Stubbs 72, 73, 74 Boulton V. Bull 401, 410, 412, 421 Bourbaud v. Bourbaud 631, 633 Bourne v. Taylor 248 Bousfield V. Lawford 64 Bovill V. Crate 404, 406, 408 u.' Goodier 220, 401, 408 V. Keyworth 412, 420, 430 V. Moore 419, 429, 433 V. Pirn 430 V. Smith 408 Bowdler v. Bowdler 615, 639 Bower v. Tiernan 73 Bowers, Ex parte 585 Bowles' (Lewis) Case 239, 244, 257, 259, 267, 280 V. Orr 60, 137, 139, 631 V. Stuart 36 Bowmaker v. Moore 74 Bowman v. Taylor 424 Bowser v. Colby 83, 84, 85, 90 V. M'Clean 213, 248, 295 Box V. Allen 347 Boyce's Executors v. Grundy 5 Boyd V. Moyle 499 Boyle V. Mulholland 498 Boyse v. Russborough 47, 134, 152 Brace v. Taylor 236 Bracebridge v. Buckley 85, 86, 97, 98 Braclcenbury v. Brackenbury 588 Bradbury v. Dickens 167 V. Manchester, Sheffield, &c.. Railway Co. 211 Bradby v. Southampton Local Board of Health 345 TABLE OP CASES CITED. XTll Bradford Local Board of Health v, Hopwood Bradley v. Angel V. Norton ■ V. Strachey 345 6^ 474 266 475, 476, 485 618 509 209, 211, 441, Braham v. Bustard Braithwaite v. Kearns Brampton v. Beddoes Bramwell v. Halcomb 442, 443, 452, 630 Brandon v. Brandon 77, 145 Brandreth v. Lance 1 Braunstein v. Accidental Death Insurance Co. 499 Bray v. Manson 73 Breadalbane, Marquis of v. Lord Chandos 64 Brearcliffu. Dorrington 580 Brecknock Co. v. Pritchard 251 Brenan v. Preston 19, 104, 105, 149 Brett V. East India & London Ship- ping Co. 525, 529 Breynton v. London & North West- ern Eailway Co. 817, 320 Bricheno v. Thorp 180 Bricknell v. Stamford 144, 145 Bridges v. Highton 396 V. Longman 92 V. Stephens 241 V. Wilts & Somerset Rail- way Co. 808, 309 Bridson v. Benecke 401, 406 V. Macalpine 401, 402 Briggs V. Lord Oxford 241, 276, 498 Bright V. North 574 Brine v. Great Western Railway Co. 341 Brisbane v. Dacres 58 Briscoe V. Drought 384, 387, 388, 389 Bristed v. Wilkins 579 Bristol, Dean & Chapter of v. Jones • Harbor Case British Empire Shipping Co. Somes Broad v. Wickham Broadbent v. Imperial Gas Co. 243 396 ' 142 146 341, ' V. Ramsbotham 842, 346, 361, 398 . Brocklebank v. Whitehaven Rail way Co. Bromfield, Ex parte Bromley v. Holland V. Smith 882 Brook V. Aston a. Evans V. Garrod • V. Skinner 294 279, 281, 282 6,15 48 411, 422 603, 641, 642 82 113 Brooke, Lord v. Roundthwaite 88 / Brooker v. Brooker 108, 109, 607 Brookes v. Burt 589 Brooklyn White L. Co. v. Masury 484 Brooks V. Cook 465 V. Greathed 146, 195 V, Jennings 500 v: Purton 631, 684, 642, 645 V. Reynolds 109, 110 u. Stolley 402 Broom v. Batchelor 499 V. Summers 174 Brophy v. Quarry 249 Brotherhood's Case 552 Broughton v. Hutt 52, 54 V. Pitchford 20 Brown v. Annandale 414 V. Bateman 100 V. Blest 385 V. Bulkley 44 V. Castles 84 V. Cavendish 173 V. Cooke 461 V. Duchesne 432 V. Evans 148 w. Frost 537, 605 V. Fuller 617 V. Hodges 424 V. Ilius 889 V. Ilkins 385, V. Lamphear 55 V. Montgomery 35 V. Newall 7, 17„20, 587, 628, 629j 641 V. Peck 50 V. Ray 77 V. Robertson 612 V. Tanner 101 V, Warner 539 Browne v. Carr 74 V. Freeman 476, 484, 487 V. Lord SUgo 505 V. Monmouthshire Canal Co. 541, 566 V. Bobbins 367, 868 V. Savage 101 Brownell v. Brownell 62 Browner v. Davis 622 Browning v. Wright 498 V. Camden & W. R. & T. Co. 332 Brownlow v. Metropolitan Board of Works 397 Bruce v. Elwin 131, 132 Brumley v. Fanning 263 Brunton ». Hawkes 418, 422 V. Lister 88 V. Neale 194 Brydges v. Kilbum i 251 0. Stephens 241, 275, 276 Bryon v. Metropolitan Saloon Omnibus Company 559, 567, 568 Bryson v. Whitehead 507 Buchanan v. Kucker 137, 138 Buckingham, Duke of v. Duchess of Buckingham 606 xvm TABLE OP CASES CITED. Buckland v. Butterfield ■ V. Gibbins ■ V. Hall Page 254 13, 21, 23 538 Buck Mountain Coal Co. v. Lehigh Coal & Nav. Co. 230, 543 Bullen V. Denning 242 V. Orev 642, 645 BuUer v. Plunkett 102 Bullock V. Chapman 22, 169, 170, 541, 547 V. Dommitt 56, 251 V. Kichardson 50 Bunbury v. Bunbury 15, 154, 157, 158 Bunch V. Bunch 604 Bunker v. Locke 261 Bunn V. Guy 512 Buntou V. Lyford 15 Burbidge v. Robinson 642 Burdell v. Hay 635 Burdett v. Hay 619, 626 Burgess v. Burgess 476, 477, 486 V. Hateley 229, 280, 488, 490, 491 V. Hills 229, 230, 488, 490, 491 V. Home 612 V. Lamb 272, 277 Burke v. Prior 18, 89, 93 Burkiushaw v. Birmingham and Oxford Junction Railway Co. 312 Buries v. Popplewell 115 Burn V. Carvalho 99 Burnes v. Pennell 36, 37 Burnett v. Anderson 129 V. Chetwode 185, 458 V. Craig 1 Burnham v. Kempton 340 Burr V. Duryee 410, 430 Burrell v. Delarante 162 Burrowes v. Gore 596 V. Lock 34 Burrows v. Foster 508 V. Jemineau 133 V. Wall 203 Burt V. British Nation Life Assur- ance Association 549, 550, 552 Burton v. Knight 140 Bury V. Bedford 476, 479, 483 Bush V. Fox 421, 428 V. Western 393 Bushby v. Munday 156 Butcher v. Butcher 32, 497 Butler V. Birkey 77 V. Burleson 507 V. Gardener 612 D. Kynnersley 278,280,283 V. Rutledge 604 Butt V. Imperial Gas Co. 354 Butterworth v. Robinson 457, 458, 462 Butts V. Matthews 618 Buxton V. Calcote 399 V. James 203, 441 Page Byrne v. Byrne 589 Byron, Lord v. Dugdale 451 V. Johnstone 478, 488, 611, 618 Caddick v. Masson Cade V. Newenham Cadell V. Robertson V. Stewart Cadogan v. Kennett Cage V. Russell Caird v. Campbell Caleraft v. Thomson V. West 638 399 198, 445 187 597 85, 97, 98 631, 633 352, 353 337, 483 Caldicott V. Baker 597 Caldwell v. Baylis 252, 260, 275 V. Vanvlissingen 196, 401, 402, 409, 415, 431, 432 Caledonian and Dumbartonshire Railway Company v. Magis- trates of Helensburgh, 554, 563 Caledonian Railway Company v. Lord Belhaven 869, 370 V. Colt 322, 841 V. Ogilvy 345 V. Sprot 369, 370, 373, 374 Calverley v. Williams 53 Calvert v. Gason 260 D.Gray 614 V, London Docks Company 71,72 Camden & Am. Railroad v. Stew- art 630 Camille v. Donato 216 Cammellj;. Sewell 137 Campbell v. AUgood 197, 198, 236, 237, 271, 280 V. Hooper 44 V. Mackay 599 V. Salomons 131 V. Scott 209, 441, 448, 452, 458, 454 Campbell's Trustees v. Campbell 398 Canedy v. Morey 56 Canham v. Fisk 357, 358 V. Jones ■ 476, 486, 487 V. Neale 117 Canton Co. v. Northern, &c.. Railroad Co. 6 Capell V. Butler 77 Capes V. Hutton 493 Capps V. Norwich and Spalding Railway Co. 325 Carbrey v. Willis 365 Garden v. Butler 518 Cardiff, Mayor of r. Cardiff Water- works Co. 209 Cardigan, Earl of «. Armitage 247 Cardinall v. Molyneux 267, 632 Carew, Ex parte 621 TABLE OP CASES CITED. XIX Page Carew v. Carew 257 V. Cooper 102 V. Yates 615 Carlen «. Drury 566 Carlisle v. Cooper 332, 337, 349, 386 V. South Eastern Railway Company 549, 650 Carlyon v. Lovering 384 Carnes v. Nesbitt 511, 515, 519 Carnochan v. Norwich and Spald- ing Railway Company 295 Carpenter v. Smith 414, 415, 421 V. Gwynn 6 Carpmael v. Powis 55 Carr v. Foster 367, 386 Carrick v. Young 105 Carroll v. O'Connor 82 Carron Iron Company v. Maclaren 9, 154, 156, 158, 159, 605 Carter v. Carter 588 ti. Cropley 174, 571 V, Great Eastern Railway Co. 304, 305, 310 V. Palmer 46 Cartier v. Carlisle 490, 491 Carwick v. Young 103, 105 Cary v. Bertie V. Daniels V. Faden V. Kearsley ■ V. Longman 881, 386 441 453, 455, 459 450 268, 606, 607 47 Casamajor v. Strode Casborne v. Barsham Case V. Midland Railway Co. 386, 394 Cass V. Bailey 621 V. Thompson • 516, 617 Cassell V. Stiff 447, 448, 472 Casson v. Roberts 81 Cast V. Poyser 215 Castelli v. Cook 3, 149, 600, 608, 618, 619, 628, 629, 635 Castendieck v. De Burgh 602, 627 . Castlemaine, Lord v. Craven 252 Castrique v. Behrens 139 V. Imri 137, 139 Catherall v. Davis 131 Cator 0. Lewisham Board of Works 342, 882 V. Lord Pembroke 54 Catton V. Wyld 223 Causton v. City Offices Co. 18 Cavendish v. Geaves 65, 68 Cavey v. Ledbitter 861 Cawdor, Lord, v. Lewis 68 Cawkwell v. Russell 386 Central Railroad of Georgia Com- pany V. Mitchell 130 Chaffers v. Baker 612 Chalie v. Pickering 144 Cliamberlayne v. Dummer 271, 275 Chambers v. Crabbe 49 V. Crichley 424 Pago. Chambers v. Goldwin 60, 62 V. Howell 46 V. London, Chatham, & Dover Railway Co. 313 V. Manchester and Milford Railway Co. 558, 559 V. Toynbee 610, 611, 612 Chandos, Duke of v. Talbot 240 Channon v. Patch 282 ChapUn v. Carter 643 — : V. North Western Railway Co. 524 Chapman v. Derby 65, 68 V. Mad River & L. Erie R. 882 V. Monmouthshire Railway Co. 345 Chappell V. Davidson 212, 229, 448, 459, 478, 483, 485, 486, 491, 608, ' 621 «. Purday 217, 221, 439, 451 V. Sheard 478, 483 Charlton v. Coombs 179 V. Newcastle and Carlisle Railway Co. 558, 559, 561, 562 V. Poulter 166 Charter v. Trevelj-^an 45 Chasemore v. Richards 368, 869, 378, 882, 883, 389 Chatterton v. White 248 Chedworth, Lord v. Edwards 57, 690 Chennell v. Churchman 636 Cherry v. Boultbee 66 Chertsey Market, Re 171 Chesman v. Nainby 506, 508, 513 Chesterfield v. Jannsen 82 Child V. Douglas 199, 205, 210, 282, 496, 505, 630, 631, 585, 616 Chilliner v. Ohilliner 79, 517 Chilton V. Campbell 20, 29, 214 Chinnock v. Sainsbury 222 ChoUett V. Hoffman 408 Cholmondeley, Earl v. Lord Clin- ton 179, 198, 499, 605 Chouteau v. Suydam 71 Christie v. Craig 601 Chubb V. Griffiths 483, 489, 491 Chuck V. Cremer 625, 687 Churchman w. Tunstall 398 Churchward v. Reg. 500 Churton v. Douglas 167, 477, 478 City Bank v. Young 77 Clancarty, Lord v. Latouche 62 Clapham v. Shilleto 38 Clare Hall v. Harding 43 Clarence Railway Co. v. Great Northern Railway Co. 211, 326 Claridge v. Hoare' 50 Clark V. Abingdon, Lord 80 V. Byne 122, 123 V. Clark 484 V. Cort 64, 65 XX TABLE OP CASES CITED. Page Clark V. Everhart 38 V, Fergusson 402 V. Freeman • 1, 2, 186, 487 V. Glasgow Assurance Co.' 56 V. Hart 95 V. Lawrence 340, 363 V. Leach 167, 508 V. Perry 581 V. Eoyston 250 Clarke, Ex parte 144, 639 V. Clark 211, 351, 623 V. Dickson 37 V. Esdaile 45 V. Henty 75, 79 V. Jacques 216, 612 V. Law 618 V. Manchester, Sheffield, and Lmoolnshire Eail- way Co. 304, 321, 501 .V. Manning 16, 32, 33 V. Lord Ormonde 107, 108, 109, 110, 113, 117 V. Vestry of Paddington 326 V. Price 524 V. Tipping 45, 57, 61, 63 V. Watkins 509 Clarkson v. Edge 505, 508 Claughton v. Hadwell 619 Clavering v. Clavering 246 V. Thomas 42 Claxton V. Claxton 277 Clay V. Eufford 550 Clayton v. Att.-Gen. 197 Cleeve v. Mahany 336, 338, 351, 361 Clegg, Ex parte 584 ,- V. Clegg 285 V. Dearden 328, 330, 391 V. Edmondson 201, 203, 238 V. Kowland 246, 268 Clelandu. Hedly. 143 Clement v. Griffith 615 V. Maddick 478 Clementi v. Walker 448, 461, 465 Clements v. Bowes 61, 551 V. Hall 46 V. Welles 208, 501, 504, 505, 530 Clerk V. Laurie 27 Clerke v. Moore 133 Cleveland v. Citizens' Gas Co. 362, 368 CleTcrley v. Cleyerley 109, 110 Clifton i;. Kobinson 628 Close V. Close 73 Clough V. Eadclifife 568 Clouston V. Shearer 597 Clowes V. Beck 292, 294 Clum V. Brewer 400, 406, 435 Coates V. Coates 646 V. Nottingham Waterworks Co. 555 Coats V. Clarence Railway Co. 342, 344, 846, 395 V. Holbrook 480, 489 Cobb V. Smith 6 Cochrane v. Green 65 V. O'Brien 121, 123, 131, 132 V. Wniis 53 Cock V. Kichards 49 Cockell V. Bacon 106, 191, 193, 593 Cockerell v. Cholmondeley 55 V. Dickens 108 Cocking V. Pratt 54 Cocks V. Chandler 476 V. Furday 451 Codd V. Wooden 6, 21 Coe V. Winnipiseogee L. C. & W. Manuf. Co 340 Coffin V. Coffin 198, 218, 214, 236, 253, 268, 271, 274 Cofton V. Horner 169 Cohen v. Wilkinson 554 Coker v. Simpson 200 Colburn v. Duncombe 439, 440 V. Simms 199, 228, 229, 285, 442, 449, 472, 473, 491 Colchester, Mayor, &c., of v. Low- ten 570 Cole V. Burgess 117 V. Forth 251 V. Gibbons 48 V. Gibson 50 V. Green 251 V. Peyson 244, 256 V. West End of London, &c. Eailway Co. 813 Colegrave v. Dios Santos 254 Coleman v. Mellersh 61, 62 V. West Hartlepool Eailway Co. . 603, 620, 641 Coles V. Simms 203, 204, 210, 214, 494, 615, 518, 530 V. Trecothick 57 CoUard v. AUisou 401 V. Cooper 611 Collier v. Gray 355 Collins V. Lamport 194 V. Plumb 494 V. Stuteley 222 Collins Co. V. Brown 480 V. Cowen 480 V. Reeves 480, 481, 485, 486, 489 V. Walker 227, 486, 486, 488, 489 CoUinson v. Newcastle and Dar- lington Eailway Co. 822 CoUyer v. Fallon 101 Colman v. Eastern Counties Eail- way Co. 649, 554 Colnaghi v. Ward 465 Colonial Life Assurance Co. v. Home and Colonial Life Assur- ance Co. 476 Colyer v. Clay 53 Combe, Re 101 Commonwealth v. Upton 363 Compton V. Richards 356 TABLE OF CASES CITED. XXI Comstock V. Moore 479 Congleton v. Mitchell 294 Congress and Empire Spring Co. v. High Kock Congress Spring Co. 476 Connor v. Connor 162, 163 Consett V. Bell 278 Const V. Barr 616 V. Harris 170, 208, 237, 548, 619 Constable v. Rogers 596 Good V. Cood 9, 159 Cook V. Betham 20 V. Black 99, 100 V. Cook ■ 240 V. Pearce 421, 423 V. Lord Rosslyn 122, 131, 132 V. Sturgis 584 Cooke V. 610 V. Burtchaell 46 V. Cholmondeley 262 V. Clayworth 44 V. Darwin 56 V. Forbes 362 V. Gregson 155 V. Lamotte 47, 48 V. Whaley 269 Coon V. Jones 16 Cooper V. Barber 379, 383, 384 V. De Tastet 203 V. Hubbuek 203, 356, 357, 383 V. Joel 16, 33 V. Phipps 52, 53 V. Earl of Powis 552 V. Keilly 101 — ; V. Shropshire Union Rail- way Co. 566 V. Watson "^ 167 Copeland v. Webb ^17, 402 Copis V. Middleton 47, 77 Coppinger v. Gubbins 239, 246, 248, 260 Corbin v. Tracy 585 Corcoran v. Judson 646 Cormick v. Jerome 624 Corner v. Zuntz 622 Corning v. Burden 411 V. Troy, &c., Factory 6, 332, 385 Cornish v. Keene 413, 414, 415 V. New ~ 260 ' V. Tanner 126 V. Upton 450 Correspondent Newspaper Co. v. Saunders 448 Corry v. Londonderry and Ennis- killen Railway Co. .555 Cory V. Cory 44 V. Thames Iron, &c., Co. 223, 224 V. Yarmouth and Norwich Railway Co. 198, 199, 200, 209, 210, 211, 217, 337, 340, 398 Costello V. Martin 124 Cotching V. Bassett 349 Cotesworth v. Stephens 14, 19, 30, 148, 152 Page Cother v. Midland Railway Co. 319, 623 Cotter u. Metropolitan Railway Co. 309, 310, 313, 314 Cottin V. Blane 77 Coulson V. Allison 46, 47 V. White 338 Courtenay v. Godschall 59 Courthope v. Maplesden 290 Courtown, Lord v. Ward 238, 247, 260 Cousins V. Smith 619 Coutts V. Gorham 355 Cowen V. Philipps 376 Cowgill V. Rhodes , 220 Cowley, Earl v. Wellesley 240, 241, 282 Cowper V. Baker 290 V. Clark 136 Cowtan V. Williams 122, 123, 131 Cox V. Cox 1, 186, 449 V. Goodfellow 262 i;. Higford 97 V. Matthews 355 Craigdallie v. Aikman 173 Craigie v. M'Kenzie 514 Crampton v. Bishop of Meath 284 Crandall v. Bacon 15 Crane v. Price 410, 412 Cranstown, Lord v. Johnstone 106, 154, 159, 595 Crawford v. Chester and Holyhead Railway Co. 319 V. Fisher 119, 120, 127, 131 V. North Eastern Railway Co. 555 Crawshay o. Thornton 33, 36, 119, 122, , 123 Craythorne v. Swinburne 77, 79 Creagh, Re 607 Cregan v. CuUen 238, 249 Creighton v. Rankin 76 Cresy v. Beavan 16, 626 Creuze v. Hunter 599 Crewer and Wheal Abraham Min- ing Co. V. Williams 555 Crockford v. Alexander 166, 263, 288 Croft V. Day 477, 485, 486 V. Goldsmid 89 V. Haw 495, 513 V. Lumley 90, 92 Crofts V. Haldane 357 V. Middleton 25 Croll V. Edge 416, 421, 423 Cromford and High Peak Railway Co. V. Stockport, &c., Railway Co. 211, 544 Crocker v. Bragg 381 Crookes v. Petter 479 Croome v. Lediard 492 Crosbie v. Tooke 537, 538 Crosby v. Bessey 385 Crosier v. Acer 52 Crosse v. Bedingfield 56 xxu TABLE OF CASES CITED. Page Crosskey v. European and Amer- ican Steam Shipping Co. 59, 60, 63 V. Bank of Wales 551 Crosskill v. Evory 402 Crossley v. Beverley 419, 421, 429, 437 V. Derby Gas-light Co. 201, 228, 436 V. Dixon 424 V. Lightowler 386 V. Potter 410, 420 V. Stewart 437 Grossman v. Bristol and South "Wales Railway Co., 346, 347 Croton Turnpike Co. v. Ryder 542 Crowder v. Tinkler 334, 366 Crowe V. Ballard 43 Crowley's Case 22 Crowther v. Crowther 206 Crum V. Moore's Adm'r 171 Crump V. Lambert 361, 362, 363, 364 Cruttwell V. Lye 167, 478, 514 Cubitt V. Palmer 376 Cuddon V. Morley 200, 225, 248, 261 CuUen V. Johnston's Trustees 35 Cullingworth v. Lloyd 49 Cumberland v. Copeland 448 Cumberland's Case, Countess of 282 Cumberland Coal Co. v. Hoffman Steam Coal Co. 646 Gumming v. Fraser 163 Cunliffe v. Whalley 398 Curlewis v. Carter 217 Curre v. Bowyer 118, 643 Currie v. Goold 53 Curriers' Co. v. Gorbett 203, 228, 232, 852, 353, 356, 857 Curtis, Re 598 V. Auber 100 ». Marquis of Buckingham 536, 593 V. Jackson - 381 V. Piatt 218, 219, 407, 408, 412, 430, 431, 432 V. Smallrige 22 V. "Winslow 340 Curzon v. African Go. 67 V. Belworthy 47 Cushman v. Wooster 143 Custanee v. Cunningham 617 Cuthbert v. Fane 621 Cutting V. Carter 143 Cutts V. Salmon 45 Cyphert v. McClune 15 D. Dabbs V. Nugent 58, 62, 63 Dadson v. East Kent Railway Co. 313 Dakin v. London and North West- ern Railway Co. 309 Page Dalbiac v. Dalbiac 49 Dalby v. Hirst 250 Dale V. Humfrey 501 DalgUsh V. Jarvie 184, 468, 608, 623, 628 Dallman v. King 499 Dally V. Catchlowe 539 D'Almaine v. Boosey 457, 459, 463 Dalmer v. Dashwood 195, 261, 596 Dalton V. Gill 260 Daly V. Beckett 246 V. Archbishop of Dublin 577, 602 Dana v. Valentine 340 Dand v. Kingscote 326 Daniel i\ Anderson 398 Dann v. Spurrier 41, 42, 202, 226 Darby v. Wright 599 Darcy v. AUin 414 D'Arcy v. Askwith 240, 241, 243, 246, 249 V. Blake 587 V. Sumner 635 Dare v. Hopkins 280 Darley v. Nicholson 144, 145 Darlington v. Hamilton 39 Darthez v. Clemens 60 V. Lee 60, 61 V. Winter 126 Daubney v. Manchester, &c., Rail- way Co. 309 Daugars v. Rivaz 173, 174, 571, 576, 640 Davenport v. Davenport 238, 287, 288, 290, 619 V. Goldberg 218, 401 V. Jepson 217, 219, 407, 433, 434 V. Rylands 222, 436, 438 Davey, Ex parte 585 V. Plestow 117 Davidson v. Tulloch 566 V. Leslie 621 V. Napier 169 Davies v. Clough 179 V. Cooper 48 V. Davies 41, 249, 277 V. Evans 132 V. Hodgson 167 V. Leo 237, 256 V. Marshall 42, 204, 226, 227, 349, 354, 355 V. Penton 516 • — V. Salisbury 17 :- V. Spurling 61 V. Stainbank 6, 25, 26, 73, 78 V. Williams 385 Davis V. Amer 167 V. Davis 634, 635 V. Jenkins 174, 571 V. Jones 253 V. Duke of Marlborough 48, 101, 102, 259, 597 TABLE OP CASES CITED. XXUl Davis V. Mason V. Miller V. Reed V. Sheplierd • V. Thomas ■ V, West Page 511 188 261 63 82 80, 83, 84, 85 Daw V. Eley 407, 408, 416, 427, 428, 644 Dawson v. Dawson ' 60 V. Lawes 13, 76 V. Massey 45 V. Paver 134, 302, 339, 348, 349, 390, 640 V. Prineeps 605 V. Sadler 140 V. Thompson 598 V. Yates 612 Day V. Binning 486 V. Boston Belting Co. 400 V. Merry 271 V. New Eng. Car Spring Co. 404 V. Snee 133, 227, 635, 637 Dayrell v. Champneys 236 Dean v. AUaly 253 V. Mason 485 V. Thwaite 228, 329 Dearie v. Hall 100, 101 Dehenham ti. Ox 49, 50 De Cosse Brissae v. Eathbone 137 Deere v. Guest 231, 295, 330 De Feucheres v. Dawes 628 Defries u. Creed 145 Dehon v. Foster 14 De la Branchardiere v. Elvery 468 Delafield v. Ganabeus 592 Delahaye, Re 585 Delapole v. Delapole 278 Delarue v. Dickenson 406, 430, 436, V. Fortescue 234 Del. & Bar. Canal Co. v. Bar. & Del. Bay Railroad Co. 332, 542 Delaware & M. B. v. Stump 334 Delfe V. Delamotte 473 Delondre v. Shaw 480, 486 De Manneville v. De Manneville 599 De Mattos v. Gibson 224, 493, 495,496, 521, 524, 526, 526, 527, 530, 531, 632, 601, 622 Deudy v. Cary 40 V. Henderson 508, 510, 511 V. NichoU 92 Dennis v. Eekhardt 362 Denn v. Johnson 243 Dent V. Auction Mart Co. 352, 353 V. Bennett 47, 48 V. Turpin 207, 477, 479, 480, 490 Denton v. Denton 257 V. Macniel 38 V. Noyes 16 Denys v. Locock 617 —— V. Shuckburgh 62 Page Derby, Earl of v. Duke of AthoU 152 Derbyshire and Staffordshire Bail- way Co. V. Bainbrigge 679 Derbyshire Staffordshire, &c.. Rail- way -Co. V. Serrell 17 Derosne v. Fairie 420, 424 Derry Bank v. Heath 646 De Salis v. Crossan 247 Desborough v. Harris 119, 121, 123, 125, 132 Desearlett v. Dennett 83, 90 De Tastet v. Bordenave 166, 617 Devey v. Thornton 163 Devonshire, Duke of v. Eglin 42 Dew V. Clarke 163 Dewdney, Ex parte 583 Dewhirst v. Wrigley 393 De Winton v. Mayor, &c., of Bre- con 146 Diaok, Ex parte 684 Dickens v. 454 V. Lee 213, 439, 441, 457 Dickenson v. Grand Junction Canal Co. 382, 632, 633, 637 Dickin v. Hamer 267, 278 Dickinson v. City of Worcester 390 Dietrichsen v. Cabburn 528 Dillon, Re 105 DiUy V. Doig 207, 404, 440 Dimech v. Corlett 616, 616 Dimes v. Steinberg 163 Dimsdale v. Dimsdale 46 — ■ — V. Robertson 143 Dinehart v. La Fayette 613 Dinwiddle v. Bailey 58, 59, 64 Diplock V. Hammond 99, 120, 124, 125 Dixon V. Dixon 71 V. Fawcus 488, 489 V. Monkland Canal Co. 63 Dobell V. Stevens 37 Dobbs V. Penn 412, 417, 422 Dobson p. Blackmore 337 V. Lyall 149 Dodd V. Burchell , 364 V. Flavell 637 y. Holme 368 V. Lydall 64, 66 ;— ». Salisbury and Yeovil Railway Co. 320 Dodge V. Woolsey 570 Dodsley v. Kinnersley 454 ». M'Farquhar 185, 186, 449 Doe V. Bird 242, 251, 505 V. Bliss 92 V. Bristol and Exeter Bail- way Co. 299, 317 V. Earl of BurUngton 239, 250 V. Childe 175 V. Gladwin ' 92 V. Harrison 92 d. Wawn v. Horn 258 V. Jackson ' 251 XXIV TABLE OP CASES CITED. Page Doe V. Jones 92 V. Leeds aad Bradford Kail- way Co. 326 V. Lewis 83 V. Lock , 241 V. Manoliester, Bury, &c., Railway Co. 326 V. Mayor, &c., of Manchester 316 V. North Staffordshire Rail- way Co. 303, 311, 312, 315, 317, 319 V. Peck 92 e. Price 241, 242 V. Smith 83 V. Spry 504 V. Steele 499 V. Wilson 244 Dollfus V. Pickford 494 DoUond V. Johnson 112 DoUond's Case 413, 415 Donaldson v. Beckett 445 Doolittle v. Walton 591 Doran v. Carroll 231, 236, 237, 295, 330, 331 Dorman v. Dorman 398 Douglas V. Russell 100 V. Wiggins 251 Dover Gas Co. v. Mayor, &c.,' of Dorer 301, 346, 366, 398 Harbor, Warden of v. Lon- don, Chatham, and Dover RaUway Co. 320, 623 V. South-Eastern Railway Co. 296, 532, 533, 535, 546, 565 V. Portsmouth Bridge 334 Doyle V. Muntz 550 Dowche V. Perrott 604 Dowling V. Betjeman 200, 594 V. Maguire 602 Downes v. Jackson 109 V. Jennings 49 Downman v. Matthews 67 Downshire, Marquis of u.'Sandys 270, 271, 272, 275, 276 Draper v. Borlase 41 Drayton v. Dale, 337 Drew V. Lockett 77 V. Power 62 Drewett v. Sheard 386 Drewry v. Barnes 53, 54 V. Thacker 110, 111, 113 Drummond v. Pigon 19, 21, 191, 192 Drury v. Molins 522, 624 Drysdale v. Mace 35 Dubois V. Budlong 628 Dubost V. Beresford 466 Dudden v. Guardians of Glutton Union 382 Dudley w.FoUiott. 69 Dudley Canal Co. v. Grazebrook 371, 374 Dugdale v. Robertson 367, 369 Page Duggan V. Carney 248 Duignan v. Walker 513 Dumergue v. Rumsey 255 Dummer v. Corporation of Chip- penham 174, 175, 570 Dumpor's Case 90 Dun V. Coates 152 Duncan v. Lyon 15, 140 V. M'Calmont 149 ■ V. Varty 221 Duncombe v. Greenacre 13, 148, 151 Duncuft V. Albrecht 535 Dungey v. Angove 122, 126, 128 Dunklee v. Adams 97, 98 Dunnicliff ». MaUett ' 424 Dunsany v. Dunne 286 Durant v. Moore 639 Durell V. Pritchard 218, 222, 223, 225, 231, 232, 338, 353 Durfee v. Old C. & F. Raih-oad 570 Durham and Sunderland Railway Co. V. Wawn 258 Durston v. Sandys 50, 133 Dutton V. Furniss 17, 125, 201 Dyer v. Dyer . 278, 279 V. Hargrave 39 V. Kearsley 109, 115, 117 Dyke v. Taylor 12, 14, 199, 505 Dykes v. Blake 39 E. Eachus V. Moss 331 Eaden v. Frith 209, 218, 220, 337, 351, 363 Eads V. Williams 143 V. De Hart 332 Eames v. Godfrey 431 Earlw. Sayer 410 Earle v. De Witt 54 Early v. Garrett 36 East V. Harding 244 Eastabrook v. Scott 49 East Anglian Railway Co. v. East- - em Counties Railway Co. 556, 560 Eastern Counties Railway Co. v. Hawkes 564, 565 V. Marriage 314 East India Co. v. Boddam 56 V. Donald 54 V. Edwards 121, 127 V. Henchman 37, 50, 57 V. JCynaston 328, 434, 599, 600, 645 V. Neave 54 V. Vincent 354 East and West India Docks, &c.. Railway Co. v. Dawes 325, 546 East and West India Docks Co. v. Gattke 845 V. Littledale 119, 125, 127, 130 TABLE OP CASES CITED. XXV Page East Lancashire Railway Co. v. Hattersley 494, 616 V. Lancashire, &o., Kailway Co. 322 East of England Bank, Re 645 Eastman v. Company 340 Eastwood V. Lever 222, 223, 496, 497, 501, 502, 531 Eaton V. Bennett 55 V. Lyon 91 Eccles V. Liverpool Borough Bank 216 Echcliff t). Baldwin 536 Edelsten v. Edelaten 201, 229, 475, 481, 484, 485, 486, 488, 489, 490, 491 V. Vick 18, 201, 476, 481, 486 Eden v. Foster 575 Edenborough v. Archbishop of Canterbury 173, 577, 602 Edgeberry v. Stephens 414 Edgecumbe v. Carpenter 25, 605 Edginton v. Edginton 478, 603 Edinburgh and Glasgow Railway Co. V. Campbell 304, 522 Edinburgh, Perth, and Dundee Railway Co. o. PhiUpp 497, 498, 564 Edmonds v. Plews 508 Edmunds v. Brougham 219 Edridge v. Edridge 591 Edward's Appeal 55 Edwards v. Bodine 646 V. Burt 48 V. Champion 19 V. Edwards 646 V. Grand Junction Railway Co. 562 '- V. M'Cleay 33 V. Martin 101 V. Meyrick 43, 44, 45, 47 V. Shrewsbury and Birming- ham Railway Co. 566, 568 V. Spaight 618 V. Wickwar 35 Edwin V. .Thomas 133 Egan V. Baldwin 111 Egmont V. Darell 217, 220 Egremont v. Cowell 206 Electric Telegraph Co. v. Brett 410, 412, 419 V. Nott 196, 197, 209, 210, 402, 403, 615, 616 Ellerton v. Thirsk 640 ElUott V. Brown 166, 169 V. Fitchburg Railway Co. 380, 381 V. Kempston 122 V. Lord Minto 158 V. North Eastern Railway Co. 198, 339, 366, 367, 369, 370, 373, 374, 623 V. South Devon Railway Co. 317 Page Elliott V. Turner 85, 87, 90 Elliotson V. Fetham 364 Ellis V. Corporation of Bridgnorth 348, 398 V. Cowne 33 V. EUis 597 V. Grey 3, 599 V. Henderson 552, 565 V. London and South West- ern Railway Co. 322 Ellison V. Bignold 566 ' — V. Commissioners 340, 363 Elmhirst v. Spencer 199, 209, 893 Elsey V. Adams 614 Elves V. Crofts 509, 510, 513 Elwell V. Crowther 339, 393 V. Maw 252, 253 Elwood V. Christy 423, 434, 435, 436, 437 Ely, Dean of v. Warren 294 Embrey v. Owen 379, 380, 381 Emerson v. Davies 444, 450, 456, 458 V. Udall 143 Emperor of Austria v. Day 1, 2, 3, 4, 6, 197, 198, 480, 487 Empringham v. Short 147, 600, 645 Empson v. Soden 253 Endo V. Caleham 60 England, Re 598 — ; V. Downes 49 , Bank of v. Anderson 595 V. Booth 595 V. Lewis 604 V. Lunn 592 V. Morrice 107, 109 V. Parsons 592 Ennor v. Barwell 328, 382, 383, 434 Era Assurance Co., Re 553, 558, 559 Ernest v. NichoUs 548, 558 V. Vivian 201 Erpe V. Smith 249 Errington v. Aynsley 79, 81 Erwin v. Parham 50 Esdaile v. La Nauze 33 Espey V. Lake 14, 21, 45, 46, 50 Estes V. Mansfield 143 Eton College v. Great Western Railway Co. 318 Etty V. Bridges 101 Evan V. Corporation of Avon 174, 570, 571 Evans v. Angell 498 V. Bremridge 26, 40, 70 V. Bicknell 32, 33 V. Coventry ,170, 208, 569 ■- — V. Edmunds 34 V. Hughes 168 V. Llewellyn 43, 47, 48 -, V. Wyatt 35 Evants v. Strode 52 Evelyn v. Lewis 145, 146 Evelyn's (Lady) Case 236, 277 XXVI TABLE OF CASES CITED. Page Eversfield v. Mid-Sussex Railway Co. 319 Everitt v. Prythergh 161 Evitt V. Price 177 Ewart V. Cochrane 364, 384, 392 V. Latta 77 Ewelme Hospital v. Andover 136 Ewin V. Lancaster 72, 78, 79 Ewing V. Eilley 623 V. City of St. Louis 15. V. Osbaldistone 17, 201 Exeter and Crediton Bailway Co. V. BuUer 560, 567, 568 Eyre v. Bartrop 70 V. Burmester 588 V. Everett 75, 76 F. Eairbrother v. Gibson 38 V. Prattent 120, 180 Fairchild v. Adams 143 Fairthorne v. Weston 164 Falcke v. Gray 513, 594 Falkland Islands Co. v. Lafone 608 Fallon V. Robins 65 Falls V. Water P. Co. v. Tibbetts 287 Farebrotherw. Beale 127 V. Welchman 26, 57, 60 V. Wodehouse 77 Farina v. Silverlock 221, 485, 486, 491 Farlow v. Price 118 Farquharson v. Pitcher 21, 24, 619, 636 Farrant v. Lovell 235, 256, 261, 262, 264 V. Olmius 518 Farrar v. Chauffetete 255, 256 Farrow v. Vansittart 295, 325 Fawcett v. Laurie 549, 550 Fay V. Prentice 365 Feather v. The Queen 409 Featherstonhaugh v. Lee Moor Porcelain Clay Co. 548, 564 Fechter v. Montgomery 496, 527, 530 Feilden v. Slater 630 Feistel v. King's College, Cam- bridge 632 Felkin v. Herbert 336, 348, 599, 641, 642 V. Lewis 215 Fells V. Bead 594 Feltham v. Cooke 101 Fenn v. Craig 15, 16 V. Edmunds v 132 Penning v. Lloyd 158 Fennings v. Humphery 20, 103, 637 Fenwick v. Reed 180 Ferguson v. Wilson 222, 551 Fergusson v. London, Brighton, &c.. Railway Co. 313 Fernie v. Young 217, 218, 219 Fernihough v. Leader 16, 33, 49, 547 Ferrand v. Corporation of Brad- ford 310, 393, 608 V. Clay 193 V. Hamer 633, 634 V. Wilson 241, 278 Fetridge v. Wells 481 Fewster v. Turner 501 Ffooks V. South Western Railway Co. 550, 552, 553 Field, ^x parte 591 V. Beaumont 23, 238 V. Brown 278, 279 V. Craig 60 V. Lelean 501 Fielden v. Fielden 115 V. Lancashire and York- shire Railway Co. 541 V. Laver 39 Figes, Ex parte 585 Filder v. London, Brighton, &c., Railway Co. 548, 550 Finch V. Resbridger 393 V. Earl of Salisbury 515 Finden v. Stepliens 215 Fingal, Lord v. Blake 289 Finlay v. Allen 431 Firman v. Lord Ormonde 92 Firth V. Bush 609 Fish V. Cleland 38, 45 Fisher v. Baldwin 17, 21, 66 V. Fisher 633 Fishmonger's Co. v. Beresford 284, 286 V. East India Co. 854 Fisk V. South Wilbraham Manuf. Co. 143 Fiske V. Hazard 214 Fitch V. Rochfort 628, 629 Fltton V. Lord Macclesfield 133 Fitzgerald v. Bult 28, 29, 610 V. Champneys 302 Fitzsimmons v. Joslin 50 Fitzwilliam, Lord v. Moore 266, 399 Flamang's Case 287 Flarty v. Odium 101 Flattery v. Anderdon 94 Flavel V. Harrison 481 Fleming v. Bishop of Carlisle 236, 277 V. Self 142 V. Snook 503 Fletcher v. Great Western Rail- way Co. 372, 874 V. Rylands 390 Flight V. Barton 39 V. Chambre 607 V. Cook 597 V. Thomas 856 V. Woodin 36 Flower, Ex parte 584 V. Herbert 686 TABLE OP CASES CITED. XXVll Page Flower v. London, Brighton, and South Coast Eailway Co. 803, 305 rioyd V. Jayne 15 Fluker v. Taylor 59, 60 Foley V. Addenbrooke 253 V. Hill 58, 60, 139 FoUett V. Delany 96 V. Jeffi-yes 179 FoUiott V. Ogden 69 Folsom V. Marsh 185, 188, 189, 449, 450, 451, 452, 453, 457 Fooks V. Wilts, Somerset, and "Weymouth Railway Co. 198, 804, 308 Foot V. Lea 477, 486 Forbush v. Bradford 400 Ford V. Lord Chesterfield 82 V. Compton 105 V. Gye 211 V. Tennant 178, 179 V. Tynte 245, 270, 271, 272, 274, 284 Fores v. Johnes 466 Forrest v. Manchester, Sheffield, and Lincolnshire Rail- way Co. 207,549,550,554, 564 V. "Waller 184 Forsyth v. Eiviere 415, 418 Forth V. Ridley 624 Fosbrook v. "Woodcock 610 Foss V. Harbottle 566 Foster v. Birmingham, "Wolver- hampton, &c.. Rail- way Co. 198, 204, 494, 504, 522, 534, 535 V. Blackstone 101 V. Cockerell 101 V. Homsby 346, 697 ■ V. Moore 400 Fowle V. Lawrason 59 Fowler v. Roberta 112, 113 Fox V. Dellestable 436 V. mil 16, 29, 83, 630 V. Scard 511, 514, 517, 519 V. Wright 48 Foxwell V. Bostock 403, 422, 426, 427 V. Webster 185, 405, 406, 408, 409 Fradella v. WeUer 228, 229, 472 Francis v. Spittle 169 Franco v. Bolton 50 Francome v. Francome 618 Frank v. Basnett 104, 539 Franklin v. Bank of England 592 Franklyn v. Thomas 21, 642 V. Tuton 535 Franks v. Weaver 31, 486 Fraser v. Thompson 49 V. Whalley 548, 549, 566, 568, 620, 626 Frazer v. Jordan 73 Freeland v. Stansfield 169 Freeman v. Burke 606 V. Cooke 34 V. Lomas 64, 65, 67 V. Tottenham and Hamp- stead, &c., Eailway Co. 211, 220, 322 Fremington School, Re 175 French v. French 49 V. Macale 79, 81, 249, 514, 515, 517, 518 Frewen v. Phllipps 357 Frewin v. Lewis •200, 296, 341, 345, 542, 572 Frietas v, Dos Santos 60 Frogley v. Lord Lovelace 523 Frowd V. Lawrence 144, 145, 606 FuUarton v. M'Phun 503 Fuller V. Ingram 29, 152 V. Taylor 620 Furraan v. Clark 617 Furness Railway Co. v. Smith 322, 494 Furnival v. Bogle 20, 152 Fyfe V. Swaby 547 Fynn, Re 698 G. Gage V. Newmarket Railway Co. 564 V. Smith 240, 241 Gagliardo v. Crippen 617 Gainsborough, Countess of v. Gif- ford 22, 23 Gale V. Abbott 204, 206, 226, 227, 232, 353, 356, 357, 360, 366 V. Bates 608 V. Lindo 49 V. Luttrell 65 V. Reed 508, 509 Galgay v. Great Southern and Western Railway Co. 889 Galloway v. Beaden 415 V. Mayor, &c., of London 214, 302 Galsworthy v. Strutt 516 Gambart v. Bull 464 V. Sumner 466 Gamble v. Kurtz 411 Gann v. Fishers of Whitstable 396 Gardiner v. Edwards 4, 5 V. Griffith 194, 601 Gardner v. Broadbent 402, 404 V. Charing Cross Railway Co. 312 V. Garrett 109, 118 V. Lachlan 101 V. London, Chatham, and Dover Railway Co. 581 V. M'Cutcheon 165 V. Marshall 215 XXVIU TABLE OP CASES CITED. Gardner v. Newburgh ■ V. Perkins 332 628 608 16 108 Garland v. Eideout Garlick v. McArthur Garner v. Briggs Garrett v. Salisbury and Dorset Railway Co. 212 Garstin v. Asplin 200, 293, 594 Garth v. Cotton 228, 256, 275, 276, 277, 280, 281, 284 Garton v. Bristol and Exeter Eail- way Co. 544 Gartside v. Outram 1, 177, 178, 179 Gascoyne v. Chandler 151 Gaunt V. Taylor 115 Gaved v. Martyn 382, 383, 384, 387, 392 Gawthorn v. Stockport, Disley, &c., Railway Co, 322 Gayford v. Nichols 368 Geary v. Norton 199, 229, 437, 442 Geast V. Lord Belfast 522 Gedye v. Duke of Montrose 103 Gee V. Pritchard 2, 184, 187, 188, 189 Gelston v. Whitesides 646 Gent V. Harrison 278, 279, 280, 284, 286 George v. Watmouth 627, 628 V. Whitmore 219 Gerhard v. Bates 33 Gerrard v. O'Reilly 18, 41, 93, 227, 515, 518 Gervais v. Edwards 492 Gibbs V. Gibbs 129 Gibson v. Brand 413, 415 V. Doeg 93 V. Goldsmid 17, 492 V. Hammersmith and City RaUway Co. 313, 314 V. Jeyes 45 V. Ross 175 V. Smith 198, 236, 237 Giddings v. Giddings 45, 46 Gilbert v. Cooper 558, 559 GUes V. Hart 511 V. London, Chatham, and DoTer Railway Co. 309, 313 Gill V. Newton 193 Gillespie v. Barnwall 548 Gilliver v. Snaggs 440 Gillott V. Esterbrook 476, 483 Gilpin V. Lady Southampton 110 Gittins V. Symes 233 Gladdon v. Stoneman 161 Gladstone v. Birley 5 V. Musurus Bey 3, 597 V. Ottoman Bank 3, 9 Glascott V. Copper Mines Co. 28, 631 D.Lang 12,14,104,148,149, 632 Glass V. Hulbert 43 Glasse v. Marshall 31, 590, 592, 596 Page Glassington v. Thwaites 165, 169, 170 Glave V. Harding 355, 356 Glendinning, Ex parte 73, 74 Glenn v. Fowler 5 Glennie v. Imri 16, 59, 67, 494 Glenny v. Smith 475, 478, 484, 486, 487, 489 Glover v. Daubney 616 V. North Staffordshire Rail- way Co. 341 Glyn V. Duesbury 119, 120 — ^^ V. Hood 99 Glynn v. Locke 121, 131, 132 Goate V. Fryer ll7 Goddard v. Carlisle 20 V. Snow 49 Godfrey v. Tucker 578, 579 V. Watson 261 Gold ti. Canham 169 Colder w.Golder 109 Goldsmid v. Croft 212 V. Tunbridge Wells Com- missioners 204, 205, 338, 339, 346, 385,393,534 Goldsmith v. Bruning 51 V. RusseU 49, 590 Golebourn v. Alcock 588 Gompertz v. Pooley 25, 26 Gooch V. Marshall 625, 638, 640 Goodale v. Goodale 596 Gooday v. Colchester Railway Co. 564 Goodenough v. Sheppard 16 Goodhart v. Lowe 596, 600 Goodin v. C. & W. Canal Co. 201 Goodman v. De Beauvoir 602, 608 V. Kine 607 V. Sayers 53, 140 V. Whitcombe 165, 169 Goodright v. Vivian 241 Goodwin v. Fielding 593 V. Spray 267 Goodyear v. Chaffee 409 Goold V. Great Western Deep Coal Co. 247, 367, 370 Gordon v. Calvert 75, 76 V. Cheltenham Railway Co. 203, 204, 205, 210, 294, 298 V. Woodford 240, 282 Gore V. Gibson 44 Gorges v. Stanfield 244 Goring v. Goring 249 Gorsuch V. Cree 35 Gorton v. Smart 362, 505 Goshn V. Ryan 167 Goucher v. Clayton 144, 425, 432 Gourlay v. Duke of Somerset 90, 91 Gout V. Aleploglu 476, 486 Gouthwaite v. Ripon 616 Gower v. Eyre 244 Gowland v. De Faria 48 Grady's Case 552 Grafton ti. Griffin 25, 105, 539 TABLE OP CASES CITED. XXIX Grafton, Duke of v. Hilliard 361 Graham, Ex parte 78 V. Birkenhead, Lancashire, and Chesliire, &c., Kail- way Co. 552 V. MaxweU 154, 155, 160 Granard, Earl of v. Dunkin 187 Grand Junction Canal Co. v. Dimes 293, 607, 640, 641 V. White 811 Grand Trunk Eailway v. Cook 670 Grant, Ex parte • 585 V. Grant 80 Graves v. Ashford 464, 465 V. Houlditch 15, 50 Gray v. Chaplin 552 V. Liverpool and Bury Rail- way Co. 225, 294, 318, 326 V. Matthias 15 V. Russell 450, 453, 456, 457 V. Stamford 11 Great Northern Eailway Co. v. Eastern Counties Railway Co. 323, 558, 564 V. Harrison 498, 600 V. Lancashire and York- shire Eailway Co. 521 V. Manchester, Sheffield, &c., Eailway Co. 323, 628 V. South Yorkshire Railway Co. 322 Great North of England, &c., Eail- way Co. V. Clarence Eailwav Co. 230, 330, 331 Greatrex v. Greatrex" 166, 535 V. Hayward 387 Great Ship Co., Re 107 Great Southern and Western Rail- way Co. V. Corry 119, 129 Great Western Eailway Co. v. Ben- nett 372, 374 V. Birmingham and Oxford Junction Eailway Co. 12, 623, 536, 538 V. Cripps 53 V. Metropolitan Eailway Co. 554, 857 V. Oxford, Worcester, &c , Eailway Co. 201, 202, 206, 215, 649, 632 V. Rushout 649, 653, 556, 557, 567 Green v. Bridges 87 U.Cole 239,250 V. Pinin 000 V. Green • 539, 597 V. Low 529, 539, 623 V. Lowes 596 V. Morris & Essex Eailroad 52 V. Mumford 572 V. Nixon 31, 32, 49, 653, 559 V. Pledger 331, 695 Green v. Price 515, 516 V. Pulsford 635 V. Rutherforth 575 Greenfield v. Edwards 36 Greenhalgh v. Manchester and Bir- mingham Eailway Co. 202, 210, 628 Greenhill v.- Church 140 Greenlaw v. King 45, 46 Greenough v. Gaskell 177, 178 V. M'Clelland 78 Greenslade v. Dare 602 Greenway, Ex parte 6, 66 Greenwich Hospital Commission- ers V. Blackett 261 Greenwood v. Bairstou 250 Gregg V. Coates 66, 262 Gregory v. Ford 16 V. Gregory 45 V. Mighell 41 V. Patchett 661, 662, 558, 666, 568, 569 V. Wilson 18, 64, 66, 85, 86, 87, 88, 91, 92, 93 Grenfell v. Dean and. Canons of Windsor 102 Gresley v. Mousley 280, 284 V. Duke of Northumber- land 246, 248, 260, 292 Grey v. Hesketh 50 V. Ohio & Penn. E.E. 6, 202 Grey de Wilton v. Saxon 503, 624 Grierson v. Eyre 46, 284 Griffies v. Griffies 285 Grifath V. Edwards 22, 23, 587 V. Bobbins 48 V. Spratley 47 Griggs V. Staplee 49 Grimes v. Harrison 555, 569 Grimston v. Lord Bruce 97 Grissell's Case 64 Grosvenor v. Hampstead Junction Railway Co. 313 Grover v. Hugell 15 and Baker Sewing Machine Co. V. Millard 424 V. Williams 406 Gubbins v. Creed 601 Guichard v. Mori 451 Guion V. Trask 211, 601 Gurnell v. Gardner 195 Gurney v. Behrends 622 V. Longman 462 Gyles V. Wilcox 457 Gynn v. Gilbard 598 H. Habergham v. Vincent 257 Hack V. Leonard 85 Haddan v. Smith 424 Hadfield v. Manchester and South Junction Eailway Co. 398 XXX TABLE OP CASES CITED. Hadley v. London Bank of Scotland 536 Haigh V. Jaggar 288, 291 Haines v. Roberts , 367 V. Taylor 197, 198, 202, 214, 339, 340 Hale V. Oldroyd 368 V. Saloon Omnibus Co. 131 Haley v. Hammersley 255 Halford t;. Gillow 584 Halifax v. Chambers 250 Hall V. Barrows 475, 476, 479, 483 V. Conder 424 V. Hall 164, 165 V. Hutchons 74 V. Lack 102 V. Lund 355, 392 V. Potter 50 v.. Swift 385, 386 V. Vt. & Mass. Railroad 570 Hallaran v. Donal 600, 601 Halliwell v. Philipps 270, 271, 272, 273, 274 Haly V. Goodsou 600 Ham V. Schuyler 23 Hamilton v. Board 613, 622 V. Dunsford 504, 525, 528, 529 V. Marks 120, 124, 128, 129 V. Rankin 140 V. Whittridge 334, 362 V. Worsefold 287 Hammond v. Fuller 332 V. Maundrell 591, 605 V. Messenger 206 V. Neame 591 V. Smith 608, 627 V. Ward 547 Hamond v. Walker 609 Hamp V. Jones 66, 68 Hampton v. Hodges 262 Hancock v. Bewley 406 Hanington v. Du Chatel 50, 133, 636 Hankey v. Morris 642 V. Vernon 22, 54 Hanmer v. Chance 248 , Hannam v. South London Water- works Co. 19, 92, 635 Hanson v. Derby 261 ■ , Ex parte 67, 153, 583 V. Gardiner 136, 197, 198, 236, 294 Harbidge v. Warwick 356 Harcourt v. Ramsbottom 193 V. White 41, 286 Hardcastle v. Shafto 24 Harding i\ Tingey 193, 216, 634, 637, 640, 645 V. Wickham 140, 141 Hardinge v. Webster 14, 15, 547 Hardy v. Martin 79, 81, 514 V. Reeves 261 Hare v. Horwood 54 Page Hare v. London and North West- ern RaUway Co. 642, 543, 549, 650, 651, 562, 661 Harford, «. Furrier 57 Hargraves v. Jones 617 Hargrove v. Congleton 248 Haring v. Kauffman 646 Harland v. Binks 173 Harman v. Jones 196, 209, 217 V. Richards 49 Harmer v. Plane 401, 419, 421 Harms v. Parsons 505, 512 Harner v. Fisher 32 Harper v. Pearson 478 Harrington v. Kloprogge 499 , Earl of V. Metropolitan Railway Co. 305 Harris v. CoUett 28, 29, 30 V. Jose 163, 348 V. Kemble 37, 38 ^—— V, Lewis 612 V. Mitchell 140 V. North Devon Railway Co. 546, 567 V. Ryding 247, 369 V. Troup 97 Harrison v. Brooks 837 V. CockereU 161, 611 V. Gardner 41, 167, 514 V. Guest 47 V. Gurney 15, 105, 156, 168, 160 V. Hogg 465 V. Nettleship 22, 23 V. Seym(5ur 71 V. Stickney 674 V. Taylor 228, 466, 467, 483, 486, 490 V. Wiltshire 206 Hart V. Clark 95 V. Tulk 610, 612 Hartlepool Gas Co. v. West Hartle- pool, &c.. Railway Co. 208 Hartwell v. Hartwell 50 V. Smith 77 Hartz V. Schrader 166 Harvey, Ex parte 74 V. Fergusen 229, 286 V. HaU 634 V. Wood 64 Harwood v. Great Northern Rail- way Co. 411, 415 V. Tooke 49 Hastings v. Brown 419, 420, 421 V. Whittey 510 Hatch V. Hatch 45 Hattersley v. East Lancashire Rail- way Co. 291 V. Lord Shelbume 550, 567, 661, 562, 566 Hatton V. Kean 414, 463 Havelock v. Rockwood 139 TABLE OF CASES CITED. XXXI Page Havens v. Middleton 88, 92 Hawes w.'Bamford 613 V. James 592 Hawkes v. Champion 604 Hawkins v. Blachford 195, 168, 170 V. Freeman 68 V. Gardiner 207 V. Gathercole 145, 146, 582 V. Hawkins 166, 169 Hawkshaw v. Parkins 21, 70, 74, 596, 642 Hawthornthwaite v. Russell. 161 Haycroft v. Creasy 38 Hayden v. Tucker 840 Hayes v. Ward 77 Hayne v. Maltby 424 Haynes v. Haynes 306, 807 Hayward v. Angell 85, 97 V. Dimsdale 15 V, Young 511 Haywood v. Cope 4 V. Lowndes 326 Heald v. Hay 102, 626 Heard v. Stanford 6 Hearn v, Tennant 638 Heath v. Heatli 15 V. Key 72 V. Maydew 340 V. Smith 414, 415 V. Unwin 432 Heathooate v. Iforth Staffordshire Railway Co. 9, 15, 519, 520, 524 V. Paignon • 47 Hedges <,•. Metropolitan Railway Co. 306, 316 Heine v. Appleton 441 Helling v. Lumley 91 Heming v. Swinnerton 140 Hemmings v. Pugh 67 Hemphill v. M'Kenna 398, 608 Henderson v. Gilchrist 162 Henry v. Tupper 97 Hentz V. Long Island Railway Co. 202 Hepburn v. Lordan 231, 232, 366 Herbert v. Maclean 530 V. Salisbury & YeoTil Rail- way Co. 82 Hereford, Bishop of v. Griffin 460, 461 Heriot v. Nicholas 627 Heriot's Hospital, Feoffees of v. Gibson 317, 501 Herlakenden's Case 282 Herries v. Griffiths 191, 208 Herring v. Clobery 178 V. Dean & Chapter of St. Paul's 240, 264, 266 Hertford, Ex parte 691 Herz V. Union Bank of London 206, 353, 356, 618, 619 Page Haven v. Foster 53 Hervey v. Smith 232, 366 Hesse v. Briant 45 Hetrick's Appeal Heurteloup, Re 44 416 Hewitt V. Price 610 Hewlins v. Shippara 42 Hewson v. London & South West- ern Railway Co. 313 Heydon v. Smith 241, 244, 249 Heywood v. Potter 468 Hibbard v. McKindley 646 Hickman v. Isaacs 505 Hicks V. Michael 637 Higbee v. Cam.& Am. Eaiboad 334, 630 Higgins V. Samels 34 , Re 113 Higg's Case, Re 559 Higgs V. Goodwin 412, 431 Highberger v. Stiffler 46 HiU V. Audiis 150 V. Barclay 83, 86, 89, 91, 97 V. Barry 248 V. Great Northern Railway Co. 619 V. Hoare 633 V. Paul 101 V. Reardon 599 V. Rimmell 610, 611, 627 V. South Staffordshire Rail- way Co. 42, 68, 203 V. Thompson 401, 402, 404, 405, 411, 412, 416, 421, 422, 429 V. Tupper 337, 392, 546 V. Turner 16, 151 Hilles V. Parrish ' 6 Hillier v. Parkinson 56, 86, 93 Hill Pottery Co., Re 107 Hills V. CroU 529 V. Evans 417, 418, 419, 427, 428, 436 V. Liverpool Gas-light Co. 412, 413, 419, 420, 431 V. London Gas-light Co. 412, 413, 419 V. Rowlands 89 Hillyard v. Stapleton 50 Hilton, Ex parte 583 V. Lord Granville 12, 196, 199, 201, 202, 209, 210, 213, 238, 340, 367, 628 V. Lord Scarborough 136 HinchcUffe v. Lord Kinnoul 364 Hind V. "Whitmore 216 Hinde v. Gray 507 Hindley v. Emery 222 Hindson v. Weatherill 152 Hine v. Lart 479 '— V. Stephens 6 Hines v. Rawson 14 Hipkins v. Birmingham, &c.. Gas Co. 382 XXXll TABLE OP CASES CITED. Page Hipkins v. Newton 153 Hippesley v. Spencer 262 Hirst V. Peirse 60 Hitchcock V. Coker 509, 510, 511, 613 — V. Giddings 53 Hoagland v. Titus 628 Hoare v. Dresser 532 Hobbs V. Francis 481 Hobhouse v. Hamilton 179, 180 Hobson V. Trevor 79, 517 Hodge V. Hudson Eiyer Railroad Co. 400 Hodges V. Smith 130, 131, 182 V. Welsh 450, 462 Hodgkinson v. National Live Stock Insurance Co. 555, 566, 567 V. Ennor 382, 890 Hodgson V. Duce 293 V. Murray 16, 33 V. Earl of Powis 552, 554 Hodson V. Coppard 504, 530, 605, 606, 643 Hogg V. Kirby 478 Hoggart V. Cutts 121, 124, 127, 128, 182 Hoghton V. Hoghton 45, 46 Hogue V. Curtis 103 Holden v. Waterlow 622 V. Weekes 266, 267 Holderstaffe v. Sanders 2 Holditch V. Mist 69 Hole V. Thomas 258, 274, 275 Holford V. Wortheman HoU V. Hadley Holland, Ex parte V. Eox 76 175 400, 437 78 80 HoUier v. Eyre HoUis V. Wyse Holloway v. Holloway 477, 483, 485, 486 V. Millard 49 Holman v. Loynes 45, 46 Holme V. Brown 18 Holmes a. Eastern Counties Kail- way Co. 494, 504, 521, 526, ■527, 530 V. London & North Western Railway Co. 421, 422 Hoboyd v. Griffiths 100 V. Marshall 100, 195 Holsman v. Boiling Spring Bleach- ing Co. 385 HoltzapfeU v. Baker 56, 252 Holworthy v. Mortlock 23, 54 Holyoake v. Shrewsbury & Bir- mingham Railway Co. 301, 319, 544 Homan v. Moore 24 Home V. Thompson 84, 94 Homer v. Ashford 507, 508 Hone V. O'Flahertie 597 Hony V. Hony 286 Pago Hood V. Aston 166, 595 V. Easton 261, 329, 330 V. Williamson 380 Hooper v. Brodrick 600, 522, 525 V. Clark 42 , Re 216, 217 Hope V. Carnegie 2, 157, 609 V. Corporation of Glouces- ter 497 V. Hope 220, 624, 530, 609 Hopkins v. Caddick 294 V. Great Northern Railway Co. 298 V. Hopkins 262 Hore V. Becher 64 Horn V. Kilkenny, &c., Railway Co. 49, 547 Hornblower v. Boulton 410, 421 Home V. North Western Railway Co. 524 Horner v. Flintoflf 516 V. Graves 610, 511 V. Jobs 25, 617 Horsbury v. Baker 79 Horton v. Hoyt 544 V. Mabou 411, 412 V. Sayer 143 Hosking v. Philipps 309 Hoskins v. Peatherstone 265, 266 Hotsom V. Browne 38 Hotten V. Arthur 44?, 445, 450, 456, 456 Houghton V. Reynolds 206, 589 Houlditch V. Lord Donegal 9 Househill Co. v. Neilson 410, 414,416, 416, 417 Hovenden v. Lord Annesley 588 How V. Bromsgrove 136 Howard v. Edgell 47 V. Gun " 188 V. Hopkyns 514, 517, 518 v: Ingersoll 377 V. Papera 161 V. Woodward 512, 614, 615 Howe V. M'Kernan 436 V. Newton 400 V. Searing 479 V. Willard 638 Howes V. Howes 630 Howitt V. Hall 448, 449, 459 Howley v. Jebb 243, 248 Hoyt V. M'Kennie 187 V. Gelston 637 Hubbard v, Eastman 15 Huddart v. Grimshaw 411, 417 Hudson V. Bartram 496, 537 V. Bennett 229 V. Maddison 207, 386, 361, 440, 626 V. Temple 133 Hudson & Delaware Canal Co. v. New York & Erie Railroad 337 TABLE OP CASES CITED. XXXlll Page Huffman v. Hummer 687 Hughes V. Chester & Holyhead Eailway Co. 301 , Ex parte 45 V. Howard 83, 97 V. Metropolitan Eailway Co. 326 V. Trustees of Modem Col- lege 604 V. Morris 96, 149 V. Williams 261 Huguenin v. Basley 11, 600 Hull V. Hornsea Railway Co., Re 580 V. Thomas 610, 624 Hullett V. Hague 411 Hulme V. Coles ' 73 Hume V. Pocock 35 Humphreys v. Harrison 241, 262 V. Humphreys 619 V. Rigby 50 V. Roberts 606 Humphries v. Brogden 366, 367, 368 Hungerford v. Sigersoa 16 Hunsdon v. Cheyney 41 Hunt V. Browne 249, 251 V. Hancock 167 V. Hunt 3, 6, 15, 151, 492, 506 V. Jessell 64, 67 V. Maniere 489 V. Peake 366, 367, 368 V. Rousmaniere 52 Hunter v. Atkins 45, 47 V. Belcher 61, 62 V. Nockholds 207 HuDtingtower, Lord v. Sherborne 633 Huntley v. RusseU 239, 246, 266 Hussey v. Hussey 258, 278, 279 Hutchins v. Hutchins 179 Hutchinson v. Newark 178 Hutton V. Hepworth ■ 621 V. London and South West- ern Eailway Co. 310, 342, 343 V. Rossiter 34 V. Scarborough Cliff Hotel Co. 559, 560, 566, 568 V. Warren 249, 250, 501 Huzzey v. Pield 398 Hyde v, Graham 27 V. Mayor, &c., of Manchester 316 V. Warren 130 Hylton V. Hylton 45 V. Morgan 589 Hythe, Mayor, &c., of u. East 223 I. Iggulden V. May 497 lUingworth v. Manchester and Leeds Railway Co. 204, 349 Imperial Gas Co. v. Broadbent 197, 205, 209, 224, 225, 226, 331, 341, 342, 343, 350 Page Imperial Gas-light Co. v. Clarke 631, 643 Mercantile Credit Associa- tion, Re 568 Imri V. Castrique • 137 Inderwick v. Snell 567 Inge V. Birmingham, Wolver- hampton &c.. Railway Co. 310 Ingram v. Morecraft 533 V. Stiff 442, 478, 494, 503, 622 Innocent v. North Midland Rail- way Co. 204, 310 Ireland, Bank of u. Beresford 76 Irick V. Black 630 Irvine v. Irvine 202 V. Kirkpatrick 36, 37, 38 V. Lowry 3 V. Young 62 Irving V. Thompson 30 Irwin V. Davidson 235 Isaac V. Humpage' 23 Isenberg v. East India House Es- tate Co. 230, 231, 352 Isherwood v. Oldknow 502 Isle of Wight Perry Co., Re 580 Iven V. Elwes 500 Iveson V. Harris 605, 643 Ivimey v. Stocker 357, 358, 384, 387 Jacklin v. Wilkins 610' Jackman v. Mitchell 6> 49- Jackson v. Brownson 243, 244 V. Cassidy 614 V. Cator 198, 237 V. Eenwick 496, 530 V. Leaf 110 V. Duke of Newcastle 337, 338, 339, 351, 354 V. Pesked 502 V. Riga Eailway Co. 633 V. Stanhope 200, 293, 594 V. Stewart 15 Jacob V. Hall 607 Jacobs V. Richards 44 Jacobson v. Blackhurst 124, 126, 131, 132 Jacomb v. Knight 223, 336, 352, 353 James, Ex parte 45 V. Biou 635 V. Cochrane 500 V. Downes 639 V. Plant 357, 498 Jamieson v. Teague 229, 506 Jarrold v. Houlstone 444, 445, 450, 452, 455, 456 Jarvis v. Chandler 23, 149 Jay V. Richardson 505, 531, 623 Jefferson v. Bishop of Durham 265, 266 Jefferys v. Boosey 182, 184, 445, 446, 448, 449, 465 V. Smith 285 XXXIV TABLE OP CASES CITED. Page Jeffreys v. Agra and Masterman's Bank 66, 68 Jeffs V. Wood 67 Jenkins v. Gething 254 V. Hemes 593 V. Jones 192, 193, 195 V. Robertson 73 Jenner v. Jenner 46, 66, 499 V. Morris 5, 6, 7, 26, 68 Jennings v. Broughton 33, 36, 37, 38 , Ex parte 377 Jerrard v. Saunders 588 Jersey City v. City of Hudson 334, 543 Jervis v. White 16, 33, 166 Jessell V. Chaplin 233 Jesus College v. Bloom 284, 285 Jew V. Wood 122, 123, 127, 128 Job V. Bannister 85, 86, 90 Johnson v. Fesenmeyer 4 V. Goldswaine 250, 522 V. Helleley 480 V. Jordan 365 V. Lyon 16 V. Ogilvy 50 V. Shrewsbury and Bir- mingham Railway Co. 199,495, 497, 524 V. Smart 105, 537 V. Wide West, &c., Co. 628 V. Wyatt 202, 205, 223, 226, 352, 353, 354 Johnston v. Baber 602 Johnstone v. Hall 93, 284, 337, 496, 502, 504, 530, 532 V. Symons 250, 253 Joint Stock Discount Co. o. Brown 555, 568 Joley V. Stocley 249 Jolly V. Wimbledon and Dorking Railway Co. ' 316 Jones V. 615 V. Bassett 17, 19, 21, 25 V. Batten 215, 608 V. Beach 74 V. Bennett 143 V. Belles 31 V. Brain 118 V. Crow 385 V. Farrell 99, 120 V. Garcia del Rio 2, 551, 626 V. Gibbons 499, 501 V. Gilham 131 V. Great Western Railway Co. 211, 212, 326 V. Green 515, 618 V. Gregory 31 V. Hughes 13, 21, 23, 24 V. Jones 288, 589 V. Lane 16 V. Latimer 619 V. Lees 508, 509, 513 V. Martin 49 Jones V. Maund V. Moffatt V. Mossop V. Newark V. Pearce - , V. Royal Canal Co. V. Tapling V. Taylor V. Thome V. Thomas Jordan v. Moore V. Stevens Jorden v. Money Joseph V. Doubleday Joy V. Birch Jupe V. Pratt Justice V. Wynne Page 30 62 65,67 6 403, 415, 416, 430 204 354, 358 619 505 119, 120 411, 420 55 34,39 631 82 429 100 47,: Katz V. Moore 15, 16 Kavanagh v. Coal Mining Co. 357 Kay V. Marshall 213, 403, 421, 422, 619 V. Cunningham 146 Kean v. Johnson 670 Kearns v. Leaf 558 Kearsley v. Cole 74 Keating v. Sparrow 83, 85, 97, 98 Keeler v. Taylor 48, 60 Keene v. Harris 478 V. Wheatley 439 Keighler v. Savage Manuf. ,Co. 21 Kekewich v. Marker 262, 268 Kell V. Nokes 105, 537 Kelly V. Hooper 229, 443, 4^0, 472, 473 V. Kelly 23 V. Morris 442, 443, 450, 455, 456 Kemble v. Parren 515, 516 V. Kean 528 Kemp V. London, Brighton, &c.. Railway Co. 197, 296, 305 V. Prior 56 V. Sober 264, 496, 497, 504 V. West End, &c.. Railway Co. 305, 317 Kempe v. Antill 69 Kempston v. Butler 875 Kendall v. Winsor 14 Kennedy v. Lord Cassilis 158 V. Lee 167 V. Lloyd 633 Kennington v. Houghton 60 Kensington v. White 19 Kent V. Jackson 61, 550, 552, 555, 567 V. Pickering 115 Kent Benefit Building Society, Re 555 Kenworthy v. Accunor 613 Keppell V. Bailey 531 Kemot V. Potter 198, 436, 492, 493, 629 Kerrick v. Barnsley 152 Kerrison v. Sparrow 200, 347 Kershaw v. Kalow 193, 608 TABLE OF OASES CITED. XXXV Page Keynsham Co., Be 106, 118 Kidgell V. Moore 337 Kilby V. Stanton 681 Kilmorey, Lord v. Thackeray 522, 534 Kimberley v. Jennings 495, 518, 528 Kimpton v. Eve 245, 250, 254, 263, 522, 625, 638 Kinahau v. Bolton 476, 483, 485, 486 Kinder v. Jones 292 Kinderley v. Jervis 100, 580 King y. Abbotson 161, 629 V. Hansen 508 V. King 117 V. Lindsay 493 V. Malcott 162 V. McCulIy . 398 V. Smith 282 V. Turner 634 ». Wycombe Railway Co. 306, 312, 313 Kingham v. Lee 257 V. Maisey 605 Kingsford v. Swinford 25 Kingston v. ICingston 237, 256 Kirby v. Barton 115 Kircudbright, Lord v. Lady Kir- cudbright 50 Kirk V. Bromley Union 6, 495 Kirkman v. Honnor 626 Kirkpatrick v. Dennett 586 Kir wan v. Daniel 100 Kisch V. Central Venezuela Rail- way Co. 37, 88, 39 ' Klopp V. Lebanon Bank 77 Knapp V. London, Chatham, and Dover Railway Co. 311 Kneedler v. Lane 1, 6, 628 Knight V. Adamson ' 132 V. Bulkeley 99, 102, 596 V. Burgess 524 V. Duplessis 241 V. Knight 147, 596 V. Marjoribanks 45, 47 - V. Moseley 265, 266, 267, 285 Lambert v. Lambert V. Lomas Knott, Ex parte V. Morgan Knowles v. Haughton Kooystra «. Lucas Kyle, Re Lacey, Ex parte Lackersteen v. Lackersteen Lacon v. Lifien Lacy V. Rhys Laing v. Chatham • V. Whaley 485, 486 50,52 855 142 46 55 464 64 392 Page 236, 263 29 49 498 289 596 Laird v. Birkenhead Railway Co. 41, 42, 203 Lake v. Brutton 77 Lambarde v. Older 65 Lamlee v. Han nam Larapon v. Corke Lancashire v. Lancashire Lancaster v. Evors Lancaster and Carlisle Railway Co. V. North Western Railway Co. 9, 519, 520 Lane v. Barton 608 V. New'digate 534, 624 V. Sterne 146, 645 Lane's Case 552 Lanesborough, Lord v. Jones 68 Lanfrauchi v. M'Kenzie 353 Lang V. Gisborne 414, 416 V. Purves 174, 571 Langford ». Brighton and Lewes Railway Co. 326 Langham o. Great Northern Rail- way Co. 809,310,342,611 Langley v. Hawke 161 Langston v. Boylston 119, 120, 124 Langton w.'Horton 100, 101, 120, 124, 578 Lanoy v. Duke of AthoU 69 Lansdowne v. Lansdowne 52, 252, 284 Lansing v. Eddy 16 V. Edge 22 Larabrie v. Brown 22, 28, 126, 129 Largan v. Bowen 107, 108 Large v. Alton 398 Larkins v. Paxton 112 Lathropp v. Marsh 260, 522 Lavender, Ex parte 685 Lavette v. Sage 44 Law V. Law 50 Lawes v. Purser 424 Lawford v. Spicer 638, 645 Lawless v. Mansfield 61 Lawley v. Hooper 31 V. Walden 24 Lawrence v. Great Northern Rail- way Co. 341, 891 V. Ohee 358 V. Smith 186, 441, 451 V. Walmsley 71 Lawson v. Bank of London 476 V. Paddon 537 V. Morgan 169 Lawton v. Lawton 110, 117, 253, 254 V. Salmon 258 Lay V. Mottram 600 Leach v. Ebbes 635 Leader v. Purday 463 Leake v. Beckett 207, 262, 263 Leamy v. Waterford and Limerick Railway Co. 398 Leather Co. v. Bressey 88, 640 Leather Cloth Co. v. American Cloth Co. 475, 479, 481, 482, 484, 485, 488 XXXVl TABLE OF CASES CITED. Page Leather Cloth Co v. Hirschfield 490 Lechmere-Charlton's Case 639, 641, 645 Ledward v. Hassels 98 Lee V. Alston 243, 244, 280, 285 V. Jones 35 V. Miner 299, 807 V. Page 143 V. Park 108, 110, 111, 113, 115 V. Klsdon 254 V. Simpson . 468 V. Stevenson 392 Leeds, Duke of v. Lord Amherst 239, 283, 284, 286 Leeds v. Cheetham 56, 252 Legg V. Matthieson '581 Legh V. Heald 241 Leicester, Ex parte 615 Leigh V. Billing 547 V. Clark 617 V. Hewitt 250 V. Hind 513 Leighton v. Leighton 132, 133, 134 V. Wales 508, 512, 513, 516 Lennie v. Pillans 450, 455 Lennon v. Napper 81 Leominster Canal Navigation Co. V. Shrewsbury and Hereford Railway Co. 318, 554, 568, 564 Leonard v. Attwell 645 Leroy v. Tatham 411 Leslie v. Baillie 53 V. Bimie 178 L'Estrange v. L'Estrange 99, 102, 158 Letton V. Goodden 136, 398 Leuly V. Hillas 26, 54 Levy V. Lindo 105, 536, 587, 538 Lewes v. Morgan 643 Lewis V. Bond 91 V. Cooper 558 V. Fullarton 442, 443, 444, 449, 450, 454, 455, 456 V. Hillman 45 V. Jones 74 V. Langdon 168, 479 V. Langham 611 V. Marling 413, 415, 416, 418, 419, 420, 429 V. Marsh 328 V. Palmer 77 ' V. Rough 6 V. Smith 177, 179, 215,. 631 Leycester v. Logan 150 Liardet v. Johnson 419 Lidderdale v. Duke of Montrose 101 Liddle v. Cory 402 Lidgett V. Williams 595, 600 Life Assurance of England, Re 106, 117, 118 Lifford's Case 240 Liggins V. Inge 42, 858 Page Lightfoot V. Heron 44 Lillie V. Legh 88, 91 Lind V. Isle of Wight Ferry Co. 295 Lindsay v. Jackson 68 Lindsey, Earl of v. Great North- ern Railway Co. 204 Lingwood v. Stowmarket Co. 379, 893, 394 Lister v. Eastwood 402, 430, 437 V. Leather 208, 401, 412, 421, 424, 427, 480, 433, 438, 615, 616 V. Lobley 310, 348 Little V. Gould 440 . V. Hall 489 V. Newport and Hereford RaUway Co. 317 Littler v. Thompson 244, 254, 641, 645 Littlewood v. Caldwell 170 Litton's Case 97 Liverpool, Mayor, &e., of v. Chor- ley Waterworks Co. 542, 548, 544, 635 Liverpool Borough Bank v. Tur- ner 96 Livingston v. Reynolds 243, 247 V. Swift 610 V. Tompkins 79, 97 V. Van Ingen 542 V. Woodworth 435 Llewellin v. Cobbold 49 V. Pace 33, 134 Lloyd V. Adams 18, 29 V. Cheetham 102 V. Clarke 88 V. CoUett 537 V. Eagle 99, 102, 596 V. Gordon 611 V. Gurdon 595 V. London, Chatham, and Dover Railway Co. 17, 200, 201, 497, 504, 532, 533 V. Trimlestown 289 V. Whitty 618 Lobdell V. Baker 34 Lockhart v. Hardy 106, 191, 192 Loder v. Arnold 640, 641 Lofits V. Dennis 252 Logan V. Lord Courtown 554, 567 V. Wienholt 517 Lond V. Murray 393 London and Birmingham Railway Co. V. Grand Junction Canal Co. 211, 212, 821, 344, 394, 398, 638 and Blackwall Eailway Co. V. Limehouse Board of Works 302, 616 and Brighton Railway Co. V. Blake 322 and Brighton Railway Co. V. Cooper 821 TABLE OP CASES CITED. xxxvu Page London and Brighton Railway Co. V. London and South Western Railway Co. 322 and Eastern Banking Cor- poration, Be 153 and North Western Rail- , way Co. V. Ackroyd 373, 374 and North Western Rail- way Co. V. Skerton 320 and North Western Rail- way Co. V. Smith 344 and Provincial Law Assur- ance Society ». London and Prorincial Joint Stock Life Assurance Co. 476 and South Western Rail- way Co. V, Coward 845 Assurance Association v. London and Westmin- ster Assurance Corpora- tion 476 , Bishop of V. Webb 246, 275 , City of V. Graeme 251 , City of w. Parkins 136 , City of i;. Pugh 249, 518 Cotton Club Co. 106 Gas-light Co. v. Vestry of Chelsea 499 , Mayor, &c., of v. Bolt 607 , Mayor, &c., of v. Hedger 251, 523 ■ Mercantile Discount Co. 568 Londonderry and Enniskillen Rail- way Co. V. Leishman 141 Longhurst v. Star Ins. Co. 56 Longman v. Winchester 445, 450 Lonsdale, Earl of v. Curwen 328 Lord V. Copper Mining Co. 566, 567 V. Commissioners of Sid- ney 377, 378 V. Wormleighton 113, 116 Losh V. Hague 405, 406, 412, 414, 487 Loratt, Lord v. Duchess of Leeds 241 . V. Lord Ranelagh 84, 89, 91 Lovell V. GaUoway 28, 29, 80, 624, 680 V. Hicks 33, 35 Lover v. Davidson 447, 463 Loveridge v. Cooper 101 Low V. Innes 231, 282, 494, 495, 525, 628 V. Routledge 446, 447, 448, 684 V. Staples 604 Lowe V. Jolliffe 133 V. Peers 515 V. Richardson 123 Lowndes v. Settle 224, 287, 289, 298, 294, 331 V. Browne 467 V. Cornford 119, 120 V. Lane 35 Pago Lucas V. Williams 113 Ludlow, Ex parte 244 Lumley v. Wagner 3, 6, 15, 200, 493, 503, 521, 522, 524, 527, 528, 529 Lund V. Blanshard 548, 605, 644 V. Midland Railway Co. 308 Lurting v. Conn 245 Lushington v. Boldero 273, 279, 281, 282, 283 Luther v. Winnisimmet Co. 889 Luttrell's Case 236, 379, 381, 385 Lyall V. Edwards 499 Lyddall i'. Clavering 258 V. Weston 247 Lyde v. Russell 254 Lyman v. United Ins. Co. 65 Lysney v. Selby 38 M. Macalmont v. Rankin 96 M' Andrew v. Bassett 229, 475, 476, 488 Macarthy v. Decaix 52 V. Maguire 641 Macartney v. Graham 56 Macaulay v. Shaekell 2, 451 M'Beath v. Ravenscroft 208, 681, 638 M'Blair v. Gibbes ' 52 Macbride v. Lindsay 647, 548, 550, 551, 567 M'Cormick v. Gray 417, 430 V. Talcott 410, 430 McCramer v. Thompson 71 McClurg's Appeal 507 M'Curdy v. Noak 214, 215, 617 M'Donnell v. Grand Canal Co. 548, 549, 661, 662 M'Dongall v. Jersey Imperial Hotel Co. 215, 548, 555, 566, 667, 668 Macey v. Metropolitan Board of Works 827, 848, 848, 397, 398 M'Fadden v. Jenkins 13, 21, 99 M'Farlane v. Price 421 McGee v. Smith 680 Macgregor v. Cimningham 631 V. Dover and Deal Railway way Co. 660 V. Metropolitan Railway Co. 312 Macher v. Foundling Hospital 90, 98, 227 Mackay v. Blackett 144 M'Intosh V. Great Western Rail- way Co. 60, 495 y. Wyatt 16,19,38 Macintyre v. Belcher 497, 500 Mackelcan v. Rennie 422 M'Kellar v. Wallace 60, 61 M'Eenzie v. Johnston 67 V. M'Kenzie 82, 172 V. Robinson 601 XXXVUl TABLE OF CASES CITED. Page M'Kenzie v. Wodrop 387 McKibbin v. Brown 628 M'Kinnon v. Stewart 173 Macklin v. Richardson 184, 463 Maclaren v. Stainton 17, 608, 629 Macleai; v. Dawson 609 V. Hamilton 382 V. Moody 450 Macleod v. Drummond 5 Maclure v, Kipley 18 Macnamara v. Arthur 539, 607 McNaughten v. Partridge 52 M'Neill V. Cahill 49 V. Garratt 625, 638, 640 V. Williams 211, 442 McRae v. Brown 646 Macrae v. Houldsworth 467, 468, 469, 470, 473 V. Smith 108, 110 McRoberts v. Washburne 135 M'Swiney v. Haines 395 M'Taggart v. "Watson 70, 72, 76 Maddeford v. Austwick 46 Magawly v. Brady 180 Magdalen College v. Ward 184 Magdalen Steam Navigation Co., Re 552 Magnay v. Mines Royal Co. 13, 14, 18, 20, 26, 207, 612, pi7, 630 Magor V. Chadwick 387, 388 Mahon, Lord v. Stanhope 271, 274 Mair v. Himalaya Tea Co. 525 Maitland v. Backhouse 19, 20, 30, 45, 46, 50, 214 V. Irving 46 ■ Majesty's Printers, Her v. Bell 461 Major V. Major 40 V. Park Lane Co. 377 Makepeace v. Jackson 413 V. Rogers 58 Malcolm v. Scott 99, 595 Maleverer v. Spinke 249 Mallan v. May 498, 506, 608, 509, 510, 511, 512, 513 Manby v. Bewicke 44 Manchester, Sheffield, and Lincoln- shire Railway Co.w. Great Northern Railway Co. 297,304 Sheffield, and Lincolnshire Railway Co. v. Worksop Board of Health 204, 331, 340, 388, 394 Mangles v. Grand Dock Colliery Co. 16, 547 Manlove v. Carter 596 Mann v. Great Southern and West- ern Railway Co. 322 V. Stephens 494, 495, 506, 530, 640 Manners v. Bligh 461 Manning v. Eastern Counties Rail- way Co. 811 Page Manser v. Northern and Eastern Counties Railway Co. 344, 394, 395 Mansfield v. Crawford 247 V. Shaw 161 V. Short 611 Manton v. Parker 429 Manwood's Case 241, 243 Mapp V. Elcock 682 Marasco v. Boiton 611 Marble Company v. Ripley 536, 624 March v. Eastern Railway 570 Mare v. Charles 499 V. Sandford 49 Margetson v. Wright 469 Marine Insurance Co. v. Hodgson 22, 23,57 Marker v. Marker 42, 201, 202, 212, 287, 268, 269, 270, 271, 272, 273 Marks v. Benjamin 505 Markwick v. Pawson 636 Marlborough, Duke of v. St. John 266, 267, 279 Club, Re 106 Marr v. Littlewood 163 Marriage v. Skiggs 112 Marriott v. Anchor Reversionary Co. 601 V. Tarpley 267 Marsack v. Bailey 642, 645 V. Earlow 20 1;. Reeves 215 Marsh v. Bennett 402 V. Conquest 463, 464 V. Keith 29 -^ V. Peacock 99, 102, 595 V. Wells 252 Marshall v. Colehill 615 V. Collet 52 • — V. Colman 168, 169 V. Ross 481 V. UUeswater Co. 377 V. Watson 166, 168 Martin v. Clue 92 V. Coggan . 249 V. Fust 616 V. Headon 220, 231, 232, 851, 353 V. Knowlys 285 V. London, Chatham, and Dover Railway Co. 304, 308, 310|, 314, 316 V. Martin 109 V. Nutkin 603 V. Roe 254, 255 V. Simpson 865 V. Wright 2, 469, 466, 487, 488 Martinius v. Hellmuth 119, 120, 130 Martyr v. Lawrence 232, 330, 331 Mason v. Bogg 108 V. Hamilton 132 TABLE OP CASES CITED. XXXIX Page Mason v. Hill 378, 379, 382 V. Mason 264 V. Murray 450, 634 V. Stokes Bay Pier and Rail- way Co. 807 Massie v. Wilson 23 Masterman v. Lewin 128, 130, 631 Mather, Ex parte 50 V. Lay 153, 586 Mathers v. Green 424, 435 Matts V. Hawkins 376 Matthews v. Jones 596 V. King 208, 233 V. Great Northern Railway Co. 553, 555 V. Smith 642 Matthewson v. Stockdale 442, 455, 459 Matthie v. Edwards 193 ,Mault). Rider 39 Maundrell v. Maundrell 588 Maunsell v. Hedges 37, 39 . V, Midland Great Western Railway Co. of Ireland 143, 345, 621, 548, 551, 554, 556, 557, 5P1, 562, 623 Maw ». Ulyatt 24, 66 Mawman v. Tegg 400, 439, 441, 442, 443, 444, 445, 456 Maxwell v. Hogg 448, 476, 479 May V. Hook 144 Mayall v. Higby 177, 182, 184, 519 Mayer v. Spence 404, 405, 618 Mayhew v. Crickett 70, 77 r. Maxwell 460 Maynard v. Foster 610 V. Moseley 54 Maynard's Case, Sergeant 5 Mayor of Rochester v. Curtiss 332 Maythorne v. Palmer 495, 496, 497 Meadows v. Kirkman 434, 435 Mealis v. Mealis 151 Medlicott v. Bowes 64, 65 Medway Navigation Co. v. Lord Romney 388 Meek v. Carter 85, 87, 93, 94 Meiklam w. Elmore 633 Meletopulo v. Ranking 596 Mellers v. Duke of Devonshire 57 Melville, Lord v. Denniston 380 Menzies v. Lord Breadalbane 391 Merced Mining Co. v. Fremont 637 Merritt, In re 145 Mercer v. Irving 498, 515, 516 Merrifield v. Lambert 385 Messageries Imperiales v. Baines 526, 527, 532, 601 Metcalfw. Hervey 126,128 V. Archbishop of York 100 Metropolitan Railway Co. v. Wode- house 306 Metters v. Brown 193 Meux V. BeU 101, 195 Meux V. Smith 14, 20, 133, 584 Mexborough, Lord ti. Bower 204, 391, 535 Micklethwaite v. Micklethwaite 268, 271, 272, 273 Middleton v. Dodswell 161 V. Greenwood 221 V. Magnay 195, 221 V. Middleton 597 Midland Great Western Railway Co. of Ireland v. Johnson 52 Railway Co. v. Ambergate, &c.. Railway Co. 319, 322, 323 V. Checkley 247, 371 V. London and North West> em Railway Co. 500, 561 Midleton v. Jackson 136 Mildmay v. Mildmay 278 Miles V. Thomas 165 Milhau w. Sharp 334 Millar v. Craig 62 V. Stewart 70 V. Taylor 183, 185, 189, 445, 462 Miller v. Grandy 337 V. M'Elroy 439 Millett V. Davey 261, 330 Milligan v. Marsh 413 V. Mitchell 171, 173, 174 Millingen v. Picken 466, 469 Millington v. Fox 229, 488, 489, 491 Mills V. Campbell 29 V. Cobby 642 V. Wright 499 Milltown, Earl of D.Stewart 16,20,28, 33, 50, 615 Milne v. Van Buskirk 624 Mimes v. McLean 628 Miner v. Gilmour 379, 380 Mines Royal Co. v. Magnay 27 Miner, Ex parte 57 Minshaw v. Jordan 636 Minter v. Mower 412, 414, 415, 416, 420 V. Wells 410, 412, 413, 418 Minturn v. Farmers' L. & Trust Co. 17 V. Seymour 331 Miss. & Mis. K. Co. v. Ward 334, 396 Mitchell V. Dors 246, 290 V. Hayne 124 V. Reynolds 506, 508 V. Steward 496 Mocher v. Reed 104 Moens v. Heyworth 34 Moet V. Couston 229, 490, 491 Mogg V. Mogg 289, 291, 293, 606 Moggridge v. Thomas 611 Mohawk Bridge Co. u. Utica & Schen. Railroad 337 Mohawk & Hudson Railway v. Artcher 840 Mold V. Wheatcroft 42, 224 MoUett V. Enequist 29, 613, 630, 635 MoUineux v. Powell 236 xl TABLE OF CASES CITED. Page Molton V. Camronx 44 Molyneux v. Scott 108, 113, 115 Money v. Jordan 631, 643 Monkland, &c.. Railway Co. i/. Dixon 325 Montagu v. Dudman 2 Montague v. HiU 631, 643 Montefiore v. Brown 173 Montesquieu v. Sandys 45, 47 Montgomery, Ex parte 585 Monypenny v. 616 - V. Bristow Moody V. Hebberd V. Holcomb Moore v. Clark V. Moore V. Orr V. Kawson - V. Usher - V. Webb 621 604 464 145 248 358 124, 126 384, 385 34,39 Moorhead v. Eades Moreland v. Kichardson 262, 267, 295, 330 Morgan, Ex parte 548, 555 V. Lord Abergavenny 245 u.FuUer 407,408 V. Great Eastern Eailway Co. 569 u. M'Adam 481 V . Marsack 120 w. Palmer 287 V. Bhodes 537, 538 V. Seaward 407, 410, 414, 418, 420,421,422,429,430,433 Morison v. Moat 167, 177, 181, 487 Morley v. Cook 537 V. Thompson 123 Morrell v. Pearson 227, 637 V. Wootten 99 Morris v. Lord Berkeley 354 V. Colman 504 V. Kelly 184, 440, 448 V. M'CuUoch 50, 51 V. Morris 249, 272, 284, 285, 640 Morris Canal v. Fagan 630 Morris Canal & Banking Co. v. Jer- sey City 572, 617 Morris & Essex R. Co. v. Prudden 201, 334 Morrison v. Barrow 219 V. Morrison 144 Mortimer v. Capper 53 w. Cottrell 289 V. South Wales Railway Co. , 345 Morton v. Middleton 420, 421, 427, 428 Moseley v. Cressey's Co. 550 V. Moseley 609 Moses V. Lewis 24 V. Murgatroyd 77 1'. Taylor 496, 504, 505 Moss V. Bainbrigge 46 Moss V. Matthews V. Syers Page 81 559, 608 56 Mossop V. Eaden Motley V. Downman 209, 479, 483, 486 Mott V. Blaokwall Railway Co. 19 Motte V. Bennett 400 Moulton V. Stowell 261 Mountcashell, Lord v. O'Neill 197, 214 Mountague v. Tidcombe 76 Mowatt V. Lord Londesborough 499 Mowhawk & Hudson R. Co. v. Clute 120, 121 Mozley v. Alston 207, 548, 550, 566 Muckleston v. Brown 29 Mulock V. Jenkins 569 Mulloney v. Stevens 469 Mumford v. Gething 507, 508, 510 V. Oxford, &e., Railway Co. ^ 502 Mundyw.JolIiffe 43 Munro v. Wivenhoe, &c.. Railway Co. 208, 209, 494, 615, 616 Munt V, Shrewsbury and Chester Railway Co. 549, 556 Mmitz V. Foster 412,414,415, 419, 420, 429 w.GrenfeU 402 Murchie v. Black 367 Murdoch v. Gifford 255, 256 Murgatroyd v. Robinson 884, 385 Murphy v. Daly 249 V. Jackson 90 w. O'Shea 45 Murray v. Benbow 186 V. Bogue 440, 444, 447, 453, 455, 456,458 V. Maxwell 447 V. Parker 55 Murtagh v. Grogan 195 Myers v. Amey 613 V. Sari 498 V. United Guarantee So- ciety 99, 125, 131 N. Nagle V, Baylor Nanney v. Vaughan Nash V. Ash V. Earl of Derbv 44 631 52 97,243 National Exchange Co. v. Drew 38 National Manure Co. v. Donald 542 Natoma & Co. v. Clookin 261 Natusch V. bving 548 Navulshaw v. Brownrigg 57 Naylor v. South Devon Railway Co. 95, 546 W.Taylor 635 V. Winch 52 Nazro v. Merchants' Mut. Ins. Co. 570 Neale v. Cripps 289 TABLE OP OASES CITED. Xli Neale v, Neales - V. Postlethwaite Page 43 589 Neate v. Duke of Marlborough 578, 579 Needham v. Oxley 407, 436, 437 Neighbour v. Brown 153 Neilson v. Harford 401, 410, 419, 423, 427 w.-Thompson 201, 406 Nelson v. Barter 119, 123, 125 V. Oldfield 152 V. Pinegar 261 V. Stocker 38 Nerot V. Burnand 593 Nesbitt V. Berridge 230 V. Tredennick 85, 97, 98 Neville v. Wilkinson 49 Nevins v. Johnson 400 Nevius V. Dunlap 55 NewaU v. EUlott 402, 412, 418, 422, 431, 432 and Elliott, Re 414, 416, 422 V. Wilson 401, 406 New Bedford Ins. for Sav. v. Fair- haren Bank 77 Newberry v. James 181, 525 Newberry's Case 457 New Brunswick, &c.. Railway Co. V. Couybeare 36, 38 Newby v. Harrison 622 Newcastle, Duke of v. Vane 280 Newcastle - under - Lyme Eoads, Trustees of v. North Stafford- shire Railway Co. 320 Newdigate v. Newdigate 272, 273, 286 Newell V. Townsend 169 Newlands v. Painter 21, 597 Newman v. Ring 640, 645 Newmarch v. Brandling 523, 534 New River Co. v. Johnson 342, 389 Newry and Enniskillen Railway Co. V. Ulster Railway Co. 140, 142 Newton, Re 613 Newton v. Chorltou 70, 71, 72, 76, 77, 610, 612 V. Cowie 465, 466 V. Cubitt 398 V. Grand Junction Railway Co. 412,413,416,428,430 V. Hubback 600 V. Metropolitan Railway Co. 304, 308 V. Ricketts 162, 163 V. Vaucher 412, 430 N. Y. Dry Dock Co. v. Amer. Life Ins. & Trust Co. 15 N. Y. & N. H. R. E. Co. v. Schuy- ler 136 Nicholas v. Chamberlain 364, 392 NichoU V. Goodair 150 Nioholls V. Ibbetson 618 V. Maynard 80, 82 V. Stretton 507, 508, 512 Page Nichols V. Chalie 141, 143 V. Hancock 143 V. Kearsley ' ^ 607 V. Roe 140, 141 Nicholson v. Hooper 18, 41, 201 V. Knapp 536, 577, 601 ' V. Knowles 122 V. Revill , 74 V. Rose 501 Nickels v. Haslam 421, 423 Nickells v. Ross 414, 421 Nicol V. Stockdale 439 Niooll's Case 36, 37 Niell V. Morley 44 Nixon V. Robinson 60 Noble V. Brett 117 Nokes V. Fish i 16, 206 V. Gibbon 84, 87, 88, 89, 94, 215 Norbury, Lord v. AUeyne 605 V. Kitchin 378, 380 Norfolk, Duke of a. Tennant 345 Norman v. Johnson 162 V. Mitchell 95, 541, 546, 547 Normanville v. Stanning 618, 628 Norris v. Chambres 9, 159 V. Day 15, 59, 62 V. Jackson 222 North V. Great Northern Railway Co. 594 Northam v. Hurley 391 Northam Bridge and Road Co. v. London & North Western Rail- way Co. 204, 205, 211, 212, 320 North and South Shields Ferry Co. V. Barker 398 North British Railway Co. v. Todd 317 Northcote v. Duke 85, 97 North Eastern Railway Co. v. Crosslaud 339, 370, 623 V. Elliott 367, 371, 374 V. Martin 18, 58, 62 Northey v. Pearce 589 North London Railway Co. v. Met- ropolitan Board of Works 326 North Union Railway Co. v. Bolton and Preston Railway Co. 291, 294,297 Norton v. Cooper 261 V. Frecker 330 V. NichoUs 209, 227, 467, 468 V. Relly 47 V. Wood 92 Norway v. Rowe 617 Norwich, Mayor of v. Norfolk Railway Co. 499, 546, 558, 565 Norwich Yarn Co., Re 552 Noton V. Brooks 424 Nottidge V. Prince 47 Novelli V. Rossi 138 NoveUo V. James 212, 221, 224 xlii TABLE OP CASES CITED. Page NoTello V. Sudlow 459 Nugent V. Vetzera 599 Nun V. Barlow 112 Nunn V. D'Albuquerque 229, 432 NuttaU V. Bracewell 378, 380, 387 0. Oakeley v. PasheUer 72, 78 Oakley v. Trustees of Williams- burg 572 O'Brien v. O'Brien 274 V. Norwich & W. R. Co. 334 O'Connor v. Spaight 24, 59, 60, 63, 67 O'Donnel v. Brown 588 Ogden V. Fossick 490, 527, 529 Ogle V. Edge 404 Ohio Railroad v. Wheeling 628 Okill V. Whittaker 54 Oldaker v. Hunt 341, 394 Oldfleld V. Cohhett 117, 633, 635 Oldham v. Langmead 424 Oliver v. Ins. Co. 52 V. Oliver 186, 187 Ollendorf v. Black 197, 446 OUirer v. King 41 O'Mahony v. Dickson 22, 63 Ombony v. Jones 255 O'Neill V. Browne 23 Ooddeen v. Oakley 624, 630, 634 Onley v, Gardiner 357 Onslow V. 622 O'Reilly v. Morse 411 Oriental Bank v. Nicholson 119, 123, 126 Orleans v. Skinner 617 Ormes v. Beadel 143 Ormonde v. Kynnersley 280, 283 Ormrod v. Huth 34, 35 Ormson v. Clark 411, 412 Ornamental, &o., Co. v. Dickson 547 Orr V. Dickenson 151, 601 V. Glasgow, &c., Railway Co. - 666, 567 — '■ — V. Littlefleld 400 Osbom V. Bank of United States 3 Osborne v. Ealis 14, 80 V. Morgan 597 V. Osborne 278 V. Williams 50, 51 Owen V. Homan 70, 73 Okenden v. Lord Compton 241, 279, 281, 282 Oxford and Cambridge Universi- ties V. Richardson 400, 439, 461 , Worcester, and Wolver- hampton Railway Co. v. South Staffordshire Railway Co. 324 Oxley V. Halden 412, 414, 416, 418, 421, 423, 431 Pago P. Pacific Steam Navigation Co. v. Gibbs 622 Packington's Case ^^ Packwood v. Maddison 118 Paddock v. Palmer 21 V. Strobridge 35 Padwick v. Hurst 69, 60 Page V. Bennett 87 V. Townsend 466 Pain V. Coombs 91 Paine v. Edwards 193 V. Mellor 57 Palin V. Gathercole 187, 188, 617 Pahner v. Bate 101 V. Cooper 407 u. Eleshees 368 , V. Fletcher 356 V. Hendrie 191, 192 V. London and South West- ern Railway Co. 544 V. Neave 49 V. Paul 198, 339, 361, 355 V. Wagstaff 407, 428 Pare v. Clegg 568 Paredes v. Lizardi 627 Pariente v. Bensusan 642 Paris V. Gilham 120, 131 Paris Chocolate Co. v. Crystal Pal- ace Co. 200, 495, 625, 629, 538 Parker v. Calcraft 196 V. Great Northern Railway Co. 610 V. River Dunn Navigation Co. 171, 621, 551, 556 V. Smith 352 V. TasweU 86, 91 V. Whyte 494, 504, 530 V. Winnipiseogee L. C. & W. Co. 332, 340 Parkhurst v. Lowten 6 Parkin v. Thorold 513 Parkinson v. Hanbury 62 Parmeter v. Attorney-General 396 Parnell v. Nesbitt 20 u. Parnell 158 Parr v. Applebee 96 V. Attorney-General 572 Parratt v. Parratt 178 Parrott v. Palmer 228, 238, 261, 284, 285, 349 Parsons v. Hayward 167 V. Hughes 262 Partington v. Booth 637, 642, 645 Partridge v. Foster 578, 579 V. Gilbert 375, 376 V. Scott 368 Passumpsic Bank v. Goss 71 Patching v. Dubbins 203, 205, 497, 505, 530 Patent Bottle Co. v. Seymour 411 TABLE OP CASES CITED. xliii Page Patent Type Founding Co. v. Eich- ard 420, 429 V. "Walter 227, 434, 435 Patrick v. Harrison 595 Patterson v. McCamont 134 Paul V. Roy 138, 189 Pauli V. Von Melle 128 Pawley v. TurnbuU 89 Paxton V. Douglas 107, 109, 110, 117, 607 V. Newton 495 Payler v. Homersham 498, 499 Paynter v. Carew 192, 193 Peabody v. Flint 570 V. Norfolk 181 Peachy v. Duke of Somerset 79, 80, 97,98 Peacock v. Evans 48 V. Peacock 165 Pearce, Ex parte 584 V. Creswick 28 V. Crutchfield 598, 625 V. Gray 24 V. Wycombe Railway Co. 214, 216, 229, 318, 543 Pearl u. Deacon 77 Pearse v. Green 57 Pearson v. Cardou 119, 122, 123 Pease v. Coates 505 Pechel V. Fowler 171 Peek V. Matthews 496 Peele v. Capel 50 Peirs V. Peirs 270, 274 Pelham v. Duchess of Newcastle 147 Pell V. Northampton, Banbury, &c.. Railway Co. 195, 297, 324 V. Stephens 106 Pella V. Scholte 604 Pemberton v. Vaughan 509 Penfold V. Stoveld 635 Penn v. Bibby 214, 407, 408, 411, 422, 436, 438 V. Jack 219, 407, 409 Penn. Coal Co. v. Del. & H. Canal Co. 535 Pennell v. Deffell 590 V. Roy 8, 108, 148, 152, 160, 583 Penniall v. Harborne 88 Penny v. Morton 16 , Re 341 Pentland v. Spmerville 241, 260, 274 Pentney v. Lynn Paving Commis- sioners 202, 207, 335, 618 Penton v. Robart 253, 254, 255 People V. Brower 610, 624 V. Compton 610 V. Davidson 384 V. Law 544 V. Mayor, &c., of New York 572 V. Sturtevant 572, 610, 624, 631 Page People V. Vanderbilt 396 Pepper v. Foster 110 Percival, Lord v. Phipps 188 Perens v. Johnson 46 Perfect v. Lane 48 V. Shepard 467 Perks V. Wycombe Railway Co. 295, 297, 310, 812 Perrine v. Striker 17 Perrott v. Perrott 236, 240, 256 Perry v. Barker 106, 191 V. Parker 400, 402 V. Phelips 108, 109, 110 V. Simonson 539 V. Skinner 425 V. Truefitt 475, 476, 481, 483 V. Turpiu 29 V. Walker 153 V. Weller 611 Peter v. Daniel 384, 895 V. Kendall 398 Peters v. Beer 147 Petley v. Eastern Counties Rail- way Co. 263, 611 Peto V. Brighton, Uckfield, and Tunbridge Wells Railway Co. 496, 521, 524, 527, 529, 530 Petre, Lord v. Eastern Counties Railway Co.^ 562 Peyton v. Mayor of London 375 Phelps V. Prothero 27, 104, 539 Philipps, Ex parte, 279, 282 V. Atkinson 169 V. Barlow 279 V. Bury 575 V. Hudson 136 V. Jones 56, 57 V. Langhom 634 V. Philipps 58, 59, 60, 588 V. Prentice 613 V. Prichard 628, 629 V. Smith 240, 241, 244, 263 V. Treeby 331, 524, 534 V. Worth 145 Charity, Ee 175 Phillips V. Thompson 77 Phoenix Life Assurance Co., Re 553 Piekard v. Sears 34 Pickering v. Bishop of Ely 495, 524 . V. Cape Town Railway Co. 143 V. Hanson 634 Pickford v. Grand Junction Rail- way Co. ^P6, 543 Ridding v. Franks 407, 424 How 481 Pidgeley v. Rawling 240, 241, 282 Pierce v. Franks 230, 486, 491 V. New Orleans 230 Pierpont v. Fowle 440, 460 Piggott V. Stratton 38, 39, 40, 500, 523, 532 533 Pigot u. Bullock 280^ 286 xliv TABLE OP CASES CITED. Page Pigot V. Williams 68 Pike V. Martin 585 Pilkington v. Scott 513 Pilling V. Armitage 43 Pillsworth «. Hopton 288 Pim V. Wilson 153 Pincliin v. London and Blackwall Railway Co. 199, 296, 306, 312, 316, 628 Pincke v. Curteis 537 V. Thomeycroft 588 Pitt V. Cholmondeley 62 Pittsburg Fort W. & C. R. Co. v. Schaeffer 76 Place V. Potts 149 Plasterers' Co. v. Parish Clerks' Co. 357 Piatt II. Button 441, 449 Platto V. Deuster 15 Playfair v. Birmingham, Bristol, &c.. Railway Co. 19, 20, 24, 546, 567 Pledge V. Buss 74, 77, 78 Plume V. Beale 152 Plymouth, Countess of v. Archer 246, 276, 284 Pole V. Ford " 73 V. Joel 616 Pollard V. Clayton 526, 594 Pollock V. Lester 207, 336 V. Stables 501 Pomfret v. Bicroft 355 Ponsardin v. Peto 489, 491 Poole V. Adams 56 V. Marsh 24 Poole's Case 253 Pooley V. Budd 594 V. Harradine 70, 72, 78, 79 Poor V. Carleton 404, 405 Pope V. Lord Duncannon 18, 142, 201 Popham V. Bampfleld 85, 97, 98 ' V. Lancaster 136 Porrett v. Barnes 89 Portarlington, Earl of v. Damer 118 — V. Graham 625 V. Soulby 9, 15, 28, 33, 154, , 160 Porter v. Clarke ' 173 Portland, Duke of v. Hill 248 Portsea Union, Guardians of v. Whaiier 70 Portsmouth, Earl of v. Partridge 16 Postgate V. Barnes 161 Potter V. Chapman 601, 624 Potts V. Levy 198, 209, 225, 229, 340, 354 V. Potts 197, 198, 236, 271, 274, 617 V, Warwick and Birming- ham Canal Co. 581 Powel V. Cleaver 598 V. FoUet 643 Page Powell V. Aiken 221, 228, 285, 295, 328, 329, 381, 391, 535 V. Allarton 496 V. Cockerell 216 K.Lloyd 14, 537 V. Powell 113, 115 V. Powis 135, 136 V. Thomas 19 V. Wright 593 Power V. Walker 448, 449 Powlett V. Duchess of Bolton 278, 280, 281 Powley V. Walker 250 Powys V. Blagrave 252, 257 Poynder v. Great Northern Rail- way Co. 309 Poyntz V. Fortune 91 Prader v. Grimm 646 Pratt V. Archer 634 V. Brett 240, 241, 249, 250, 522 V. Keith 65, 68 V, Lamson 381, 383 V. Pratt 570 V. Walker 216, 612, 621 Praund v. Turner 588 Prendergast v, Bevey 73 V. Turton 94, 201, 203 Preston v. Liverpool and Manches- ter Railway Co. 568 V. Lord Melville 155 Price V. Assheton 538 V. Barker 74 V. Berrington 633 V. Dewhurst 138 V. Evans 109, 116 V. Green 508, 512, 513, 516, 517 V. Kirkham 76 V. Ley 54 V. Lovett 102 Price's Patent Candle Co. v. Bau- wen's Candle Co. 228, 435, 437 Prichard v. Wilson , 193 Prideaux v. Lonsdale 45, 46 Priest V. Parrott 50 Priestley v. Manchester and Leeds Railway Co. 321, 344 Prince v. Haydin 631 Prince of Wales Assurance Co. v. Trulock 23 Pringle v. Wernham 352 Proctor V. Sargent 512 Protheroe v. Forman 22, 23 V. Phelps 27, 104, 536, 539 Proud t). Bates 367, 370 Prouty V. Ruggles 431 Prowett V. Mortimer 478 Pugh V. Vaughan 257 Pulling V. London, Chatham, and Dover Railway Co. 201, 206, 312, 313 Pulsford V. Richards 34, 86 Pulteney v. Shelton 250, 503, 522, 689 TABLK OP CASES CITED. xlv Page Pulteney v. Warren 7, 80, 284, 285, 587 Pulvertoft V. Pulvertoft 172, 594 Purcell V. Nash 247 Purser v. Brain 486, 488 Pusey V. Desbouverie 36, 52 Pycroft V. Pycroft 617 V. Williams 626 Pyer v. Carter 356, 364, 392 Pyke V. Northwood 20, 25, 538 Pym V. Blackburn 251 Q. Quarrier v. Colston 3, 50 Queen v. D'Eyncourt 255 Queensberry, Duke of v. Sheb- beare 184, 185 Queensberry Leases, Re 4 Queen's College v. Hallett 249 Quick, Ex parte 312 Quilter v. Newton 399 Quin V. Bagnall 116 ti. Ratcliff 587 Quincey, Ex parte 254 E. Radcliffef. Duke of Portland 336, 352, 360 Railton v. Matthews 36 Bainsdon, lie 161 Ealston v. Smith 410, 419, 425, 426 Eamsdeu ». Dyson 41, 42, 43, 202, 204 V, Manchester, &c., Rail- way Co. 307 Eamstock v. Roth 610 Randall v. Commercial Railway 611 V. Mumford 633 Randfield v. Randfield 144, 145, 146 Ranelagh v. Hays 76 , Lord V. Milton ' 82 Ranger v. Great Western Railway Co. 59, 60, 79, 82, 96, 515, 516 Ranken v. East and West India Docks Co. 310, 314 V. Harwood 108, 112 Rankin v. Huskisson 232, 501, 504, 534, 599 V. Lay 86, 89, 91 Rannie v. Irvine 508 Eansome v. Bentall 486 V. Eastern Counties Rail- way Co. 544 Rantzen v. Rothschild 644, 645 Raphael v. Thames Valley Rail- way Co. 347, 535 Eashdall v. Ford 559 Rashleigh v. Buller 619 V. South Eastern Railway Co. 500 Raltcliffe v. Gunson 74 Page Ratcliffe v. Winch 108, 113, 117, 153 Rattray v. Bishop 625 Raw V. Pote 41 Rawdon v. Shadwell 50 Rawlings v. Lambert 617, 634 Rawlins v. Wickham 34, 37, 39, 204 Rawson v. Samuel 64, 66, 67 Eawstron v. Taylor 387, 392 Raymond's (Lord) Case 598 Rayne v. Benedict 695 Rayner v. Harford 99 Read v. Blunt 162 V. Bowers 166 V. Victoria and Pimlico Railway Co. 345 Reade v, Bentley 449 V. Conquest 184, 444, 446, 459, 463, 464 V. Lacy 444, 454, 464 — V. Lowndes 74 Real Del Monte, &c.. Mining Co. V. Pond ' 6 Reddall v. Bryan 6 Reddin v. Metropolitan Board of Works 314 Redhead v. Welton 152 Redman v. Redman 49 Redmond v. Goodall 26 Rees V. Berrington 70, 72 V. Femie 17 Reeve v. Parkins 171 V. Whitmore 100 Refeld v. Woodforth 136 Reg. V. Aire and Calder Navigation Co. 374 V. 9essell 469 V. Belts 396 '- V. Birmingham and Glou- cester Railway Co. 320 V. Birmingham and Oxford Junction Railway Co. 315, 316 V. Bradford Navigation Co. 341, 346 V. Caledonian Railway Co. 317 V. Chorley 358 V. Cutler 410, 420 V. Darlington Board of Health 341, 342, 348, 393 V. Darlington School 175 V. D'Eyncom-t 256, 569 V. Dean and Chapter of Chester 576 V. East and West India Docks and Railway Co. 321, 344 V. Fisher 374 V. Hungerford Market 306 V. Lister 366 V. Loudon and Birmingham Railway Co. 321, 322 ) — V. London and Greenwich Railway Co. 314 xlvi TABLE OP CASES CITED. Page Reg. V. London and North West- ern Railway Co. 345 V. London and South West- ern Railway Co. 306, 312 V. Longton Gas Co. 366 V. Lord Mayor of London 304 V. Manchester and Leeds Railway Co. 321 V. Metropolitan Board of Works 342, 889 V. Mill 425 V. Rigby 321 V. Dean and Chapter of Rochester 576 V. Scott 321, 322 V. Train 398 V. Wycombe Railway Co. 318 V. Commissioners of Woods and Forests 306 Reid V. Stearn 124 Reimers v. Druce 137, 138 Relyea v. Beaver 240 Remnant v. Hood 229 Remseu v. Beekman 76 Renard v. Levinstein 218, 221, 402, 403, 405, 407, 408, 421, 424 Rendall v. Crystal Palace Co. 98, 571 V. Rendall 162, 163 Rennie v. Young 204 Revell V. Hussey 57 Rex V. Catherine Hall 575 V. Clement 603 V. Bishop of Ely 576 V. Inhabitants of Exminster 499 V. Hermitage, Inhabitants of 357, 358 V. Leeds and Selby Railway Co. 374 V. Mashiter 497 . u. Metcalf - 421 V. Moore 366 V. Oxfordshire, Inhabitants of 389 V. Paghijm, Commissioners of Sewers for , 397 V. Pease 341 V. St. Dunstan's 254 V. Sharpe 344 V. South Holland Drainage 306 V. Trafford 391 V. Ward 396 V. Wheeler 410, 417, 419, 421 Reynell v. Sprye 17, 81, 35, 37, 39, 50, 51, 201, 607, 637 Reynish v. Martin 98 Reynolds v. Bridge 515, 516 V. Clarke 383, 365 V. Nelson 104, 539 V. Pitt 83, 86, 87, 91 Rheam v. Smith 547 Rhodes v. Bate 45, 47, 48 V. Buckland 193 Page Rhodes v. Dunbar 362 Rhymney Valley Railway Co. v. Taff Vale Railway Co. 324 Rieardo v. Garcias 137 Riccard v. Prichard 99 Rice's Case , 269 Rice V. Smith 551 Richard's Appeal 12 Richards v. Curlewis 47 V. Harper 367 V. New Hamp. Ins. Co. 570 V. Noble 261 V. Platel 195 V. Richards 303, 305, 344 V. Rose 356, 875 V. Salter 120 V. Scarborough Market 302, 319 V. Symes 23 Richardson v. Gilbert 461 M.Hastings 164 Richmond's Case 96, 661 Rickett V. Turquand 498 Riddle v. Bowman 77 Ridgway v. Roberts 199, 694, 600 V. Sneyd 53, 67 Rigby V. Great Western Railway Co. 199, 209, 210, 211, 221, 493, 494, 498, 500, 527, 530, 532, 533 Ringer v. Blake 589 V. Cann 499 Ripon, Earl of u. Hobart 197, 199, 201, 209,217,337, 389, 348; 623 River Dun Navigation Co. v. North Midland Railway Co. 296 Roach V. Garvan 698 Roberts v. Bozon 693 V. Eberhardt 169 V. Foster 48 V. Haines 368 V. Hodges 630 V. Kufflu 62 V. Macord 360 V. Roberts 257, 258, 597 V. Rose 395 Robertson v. Quiddington 168 Robinson v. Anderson 218 V. Lord Byron 230, 232, 291, 330, 391, 393, 624 V. Davis 628 V. Hedge 194, 686 V. Litton 198, 236, 237, 266, 269, 262 V. M'Donnell 100 V, Magulre 191 V. Russell 261 Robinson's Executors, Ex parte 162 Robson V. Earl of Devon 32, 38 V. Whittingham 222, 352 Rochdale Canal Co. v. King 201, 204, 206, 215, 226, 226, 229, 380, 888, 393 V. RadcUffe 388, 542 TABLE OF CASES CITED, xlvii Page Rochester, Mayor, &c., of v. Lee 207, 221 Rock V. Cook 124, 146, 147 V. Matthews 617 Rodgers v. Nowill 217, 227, 477, 645 Rodick V. Gandell 99, 100 Roflfey, Ex parte 153, 583 Rogers v. Abbott 404 V. Challis 222 V. Driver 469 V. Dock Co. of Hull 805, 307, 814 7— V. Oxford, Worcester, and Wolverhampton Railway Co. 650, 561 V. Price 241, 522 V. Rogers 161, 162 V. Taylor 368 Rogers Locomotive and Machine Works V. Erie Railroad Co. 230 Rolfe V. Harris 87, 97 V. Peterson 517 V. Rolfe 512, 528 RoUeston v. New 521 Rolt V. Somerville 270, 280, 283 Rooke V. Lord Kensington 499 Roper V. Williams 203, 496 Rose V. Hart 68 V. Rose 80, 82, 85 Ross, Ex parte 66 V. Sherer 591 Rosse, Earl of v. Worsop 90 Roswell's Case 235, 256 Rouse V. Jones 109, 116, 117 Routh V. Webster 169, 170, 488, 489 Row V. Dawson 99 Rowbotham v. Wilson ' 866, 367, 368 Rowe V. Granite Bridge 384 V. Wood 21, 22, 23, 261 Rowlatt I). Cattell 611 Roworth V. Wilkes 453, 464, 465 Roy V. Duke of Beaufort 50 Royle V. Wynne 105 Rumbold v. Forteath 215, 589 Ruudell V. Murray 203, 406, 440, 441, 449, 451 Rush V. Higgs 108 Russell V. Barnsley 402 V. Cowley 401, 412, 430, 433 V. East Anglian Railway Co. 146, 147, 581, 687, 638, 640 V. Jackson 177, 178, 179, 180 V. London, Chatham, and Dover Railway Co. 605, 607 V. Philipps 499 V. Smith 463, 464 V. Smithies 261 Rutherford v. Douglas 162 Ryde Commissioners v.' Isle of Wight Ferry Co. 836 Ryder v. Williams 292, 364 S. Pago Sablicich v. Russell "i 123, 125, 148 Sadd V. Maldon, Braiutree, &c.. Railway Co. 805, 819 Sadler, Ex parte 49 Sainsbury v. Jones 494 Sainter v. Ferguson 493, 508, 510, 511, 513, 516, 516, 517, 519 Salisbury, Marquis of v, Glad- stone 248,315,367 V. Great Northern Railway Co. 306, 316, 322 Salmon v. Randall 800 Salomon v. Stalman 621 Salomons v. Laing 549; 554 Saloway v. Strawbridge 193 Salter v. Bradsliaw 48 Salters Co. v. Jay. 357 Sampson v. Hoddinott 879, 381, 388, 884, 887 V. Smith 834, 361 Samuel v. Howarth 70, 71, 72 Sanders v. Logan 400 V. Rodway 506 Sanderson . v. Cockermouth and Workington Railway Co. 304, 535 Sandford v. Railway Co. 340, 542 Sandon v. Hooper 261 Sandys v. Murray 294 Sanxter v. Foster 18, 210, 538, 617, 626 Sapcote V. Newport 604 Sarazin v. Hamel 468 Sargent v. Lamed 402 V. Seagrave 400 Sarles v. Sarles 243, 244 Saul V. Metropolitan Railway Co. 328 Saunders v. Dehew 588 V. Newman 879, 383, 385 V. Pope 85 V. Saunders 208 V. Smith 196, 201, 203, 210, 406, 439, 441, 443, 450, 462 Saunder's Case 246, 247 Savery v. King 45 Saville's Case 258 Savory v. Dyer 605, 607 V. Price 419 Sawyer v. Hovey 55 V. Vernon 31 Saxby v. Saxby 639 Saxon Life Assurance Co., Ee 52 Saxton V. Davies 596 Sayre v. Moore 455, 459, 465 V. Fredericks 32 Scarisbrick v. Tunbridge 203, 208,496, 497, 501 Schalk V. Schmidt 208, 628 Scheile v. Brakell 603 Schettiger v. Hopple ■ 55 Schlumberger v. Lister 27 Schneider v. Lizardi 634 xlviii TABLE OF CASES CITED. Page Schniteel's Appeal 77 Soholefield v, Lockwood 55 Schoole V. Sail 106, 191, 192 Schotsman v. Lancashire and Yorkshire Railway Co. 696 Schreiber v. Creed 496, 505 Schwinge v. London and Black waU Railway Co. 304, 306, 316 Scofield V. Bokkelen 12 Seotson v. Gaury 18, 613 Scott V. Ames 628 V. Avery 143 V. Becher 161, 172, 614, 617, 625 V. Hastings 580 a. Corporation of Liyerpool 58, 60, 143 V. Onderdonk 136 V. Pilkington 137, 138 V. Porcher • 99 V. Scott 49 V. Shepherd 383 V. Stanford 450, 452, 453 V. Tyler 98 Scottish North Eastern Railway Co. V. Stewart 525, 554, 558, 663, 564 Seagram v. Knight 286 Sealey v. Gaston 697 Sears v. Boston 230 Seawall v. Webster 327, 376, 821 Sedgwick v. Clegg 128 Sedon v. Senate 486 Seed D. Higgins 411, 426, 427, 430 Seely v. Pisher 478, 487, 488 V. People 71 Sefton, Earl of v. Lord Salisbury 25, 135 Seixo V. Provezende 475, 484 Selby V. Colne Valley and Hal- stead Railway Co. 303, 318 V. Jackson 44 V. Selby 132 Sellar v. Griffin 62 Sellers v. Dickinson 413, 428, 430, 433 SeUs V. SeUs 55 Semple v. Holland 98 V. London and Birmingham Railway Co. 202, 211, 298, 337, 361, 398, 628, 629 Senior v. Pritchard 28, 29, 624 Service v. Castaneda 3, 609, 626 Sergison v. Beavan 609 Seton V. Slade 515 Sevin v. Deslandes 626, 527, 601 SeweU V. Preeston 22 V. Musson 82 Sexton V. Smith 113 Seymour v. Delancy 536 V. Lucas 580 V. M'Donald 506 Shackle v. Baker 167, 478 Shannon v. Bradstreet 41, 539 Sharp V. Arbuthnot 595 Sharp V. Ashtou 634, 635 V. Day 550 V. Taylor 52, 550 V. Waterhouse 391 Sharp's Rifle Manufacturing Co. v. Rowan 3 Shaw u. Bank of England 434,435 V. Dwight 21 V. Fisher 535 V. Hill 602 V. Stenton 521 V. Thackerah 367, 368 V. Thackeray . 44 Sheard v. "Webb 206, 497, 628 Shearman v. Macgregor 86, 87, 92, 93 Shears v. Wood 381 Shedd V. BankofBrattleboro 16 Shedden v. Patrick 139 Sheehy v. Professional Life Assur- ance Co. 137, 138 Sheets v. Selden 15 Sheffield v. Duchess of Bucking- ham 161 SheUefy v. Nash 48 V. Westbrooke 598 Shepard v. Brown 6, 28, 59 Shepherd v. Conquest 448, 463 V. Jones 129 Sheppard v. Oxenford 550 Sherborne, Lord v. Naper 133 Sheriff w. Coates 400, 439, 441, 472 Sherman v. Sherman 61 Sherred v. Cisco 375, 376 Shine v. Gough 7 Shinner v. Harraan 253 Shipley v. Caples 398 Shireffw. Barnard 253 Shore v. Wilson 449 Shrewsbury and Birmingham Rail- way Co. V. Chester, &c., Railway Co. 322 V. London and North West- ern Railway Co. 495, 497, 558, 560 V. Stour Valley Railway Co. 143, 322, 496 Shrewsbury and Chester Railway Co. V. Shrewsbury and Birming- ham Railway Co. 12, 164, 196, 197, 209, 210, 213, 523, 536 Shrewsbiu'y, Earl of v. North Staffi)rdshire Railway Co. 562, 563 V. Trappes 19, 21, 197, 578 Shricker v. Field 16, 630 Shrimpton v. Laight 486 Sibhald v. Hill 36 Sickels V. Mitchell 400, 406 V. Young 400 Sicklemore v. Thissletoi^ 498 Sieveking v. Behrens 123, 126, 126, 127, 128, 131, 152 TABLE OP CASES CITED. xlix Page Siggers v. Evans 173 Simmonds v. Heaviside 610 Simmons v. Haseltine 537 V. Norton 239, 243, 244, 249 Simons v. Cridland 595 V. Farren 504 V. Johnson 499 Simper v. Foley 336, 357, 858 Simpson v. Denison 322, 823, 548, 556, 557, 566 V. Pogo 137, 138 V. Holliday 218, 219, 409, 419, 420 V. Lord Howden 15, 22 V. Lancashire and Carlisle Railway Co. 305 V. Sadd 105 V. Savage 337 V. South Staffordshire Wa- terworks Co. 301, 302 V. Vaughan 499 V. Vickers 98 V. Westminster Palace Ho- tel Co. 548, 549, 555, 564, Sims V. Estate Co. 877 Singer v. Troutman 76 Singer Sewing Machine Manuf. Co. V. Wilson 434, 618 Sirdefield v. Price 587 Sismey v. Eley 16 Skegg V, Simpson 626 Skerratt v. North Staffordshire Railway Co. 326 Skiller v. Grandy 834 Skillett V. Fletcher 71 Skillman v. Holcomb 23 Skingley, Re 252 Skinner v. Dayton 82 Skinners' Society v. Irish Society 174, 208, 571 Skip V. Harwood 638 Slee V. Corporation of Bradford 501, 523 Slim V. Croucher 5, 6, 7, 15, 32, 34 SUngsby v. Boulton 124, 126 Sloman v. Walter 79, 81, 514 Small V. Currie 33, 70, 72 V. Fitzwilliam 82 SmaUman v. Onions 257 Smart v. Morton 367, 869 Smee v. Baines 65, 67 Smith, Ex parte 74 , Ee 621 V. Appleton 611 V. AykweU 163 V. Bank of Wadesborough 287 V. Clark 607 V. CoUyer 291 V. Cooke 284 V. Davidson 418, 415, 433; 432 . V. Dickinson 418 V. Dixon 616 V. Earl of Effingham 19 Smith V. Elger V. Everitt V. Fromont — — — V. Hammond V, Harrison V. Haytwell V. Hurst V. Jeyes V. Johnson 209, 354 480 170 123, 132 39 595 578, 579, 588 166, 168, 169 444, 460 V. Kay 37, 38, 45, 47, 48, 350 !>. Kempsou 151 V. Kenrick 390 V. Lakeman 641 II. Leveaux 57, 58, 60 V. London and North West- ern Railway Co. 412, 424, 4?0, 431, 435 V. Mayor, &c., of Harwich 500 V. Myers 551 V. Owen 354 V. Parkes 64 V. Prattville Manuf. Co. 570 V. Reese River Co. 20, 33, 34, 35, 39, 547 V. Rome - 235 V. Sharp's Rifle Manuf. Co. 400, 406 V. Smith 598, 607 V. South Western Railway Co. 406 V. Swansea Dock Co. 616 V. United States 71 V. WMtmore 140, 141, 143 and Fleming's Case 64, 605 Smithurst v. Edmunds 13 Smyth V. Balch 16 V. Carter 251 V. Griffin 15 Smythe v. Smythe 274 Snedeker v. Warring 255, 256 Snediker v. Pearson 15 Soames v. Edge 221, 222 Society, &c., v. Low 202, 630 Solly V. Moore 19 Solomon v. Vintner's Co. 868, 375 Soltau V. De Held 207, 333, 334, 835, 338, 351, 364, 616 Solvency Mutual Guarantee So- ciety V. Freeman 27 Somerset v. Cox 102 Somersetshire Canal Co «. Har- court 42 Songhurst v. Dixey 263 Sorsbie v. Park 499 South V. Bloxam 76 South Eastern Railway Co. v. Brogden 58, 62, 63, 67 Railway Co. v. Reg. 320, 321 South, Ex parte 99 Southeyw. Shorwood 185,186,187, 441, 451 Southorn v. Reynolds 223, 477 480 TABLE OF CASES CITED. Page South Staffordshire Railway Co. v.. Hall 345, 632, 637 South Wales Railway Co. v. Red- mond ■ 554, 558, 565 Railway Co. v. Richard 311 Railway Co. v. Wythes 492, 495, 529 South Western Railway Co. v. Coward 326 Southworth v. Taylor 224 South Yorkshire Railway, &c., Co. u. Great Northern Railway Co. 322, 558 Spackman v. Great Western Rail- way Co. 314 V. Lattimore 549, 556 Spalding v. Keely 613 Sparkman v. Higgins 404 Sparks v. Liverpool Waterworks Co. 95 Sparrow v. Oxford, Worcester, and Wolverhampton Rail- way Co. 197, 294, 306, 313, 315, 318 W.Paris • 515,516 Speer v. Bidwell 143 Speer v. Carter 572 Spencer v. Jack 407, 413, 420, 427, 428 V. London and Birmingham Railway Co. 211, 212, 321, 334, 898 V. Scurr 246 Spiers v. Brown 444, 445, 455, 456 Spiller V. SpUler 536 Spokes V. Banbury Board of Health 346, 394, 637, 638, 645 Spooner v, McConnel 332 V. Payne 102 Spottiswoode v. Clark 210, 442, 478, 486 V. Stockdale 172 Spurgin v. White 173 Squib V. Wyn 99 Squier v. Wayer 254 Squire v. Campbell 334, 338, 348, 398, 501 St. Albans, Duke of v. Skipwith 249, 265 St. George v. Wake 49 St. George's Steam Packet Co., Re 555 St. Helen's Smelting Co. v. Tip- ping 360, 382 St. James' Church w, Arrington 340 St. John's College v. Carter 644 V. Toddington 575 St. Thomas' Hospital v. Charing Cross Railway Co. 312, 313, 318 St. Victor V. Devereux 631 Stace V. Mabbott 134, 220 Stackhouse v. Countess of Jersey 6, 16,33 Stadhard v. Lee 500 Stafford v. Stafford 53 Staffordshire and Worcestershire Canal Co. v. Birmingham Canal Co. 388 Stagg V. Knowles 635 Stainton v. Carron Iron Co. 155 V. Wookych 342, 344, 346, 389 Stamps V. Birmingham and Stour Valley Railway Co. 305, 310, 614 Standish i;. Mayor, &c., of Liver- pool 296, 308 V. Dow 604 V. Whitwell 477 Stanley v. Chester and Birken- head Railway Co. 562 V. Coulthurst 236 Stansbury v. Arkwright 589 Stansfield v. Habergham 256, 257, 259, 260, 281 Stanton v. Tattersall 35 Stapleton v. Poreign Vineyard Association 603 V. Haymen 96 State V. Judge 6 State of Penn. v. Wheeling, &c., Bridge Co. 332 Statham v. Hull 128 Stead V. Anderson 413, 414, 416, 430, 432 V. Carey 422 V. Clay 590 V. Glay 607 V. WUliams 415, 416, 423, 429 Stedman v. Smith 376, .383 V. Webb 195, 608, 628 Steedman v. Marsh 414 V. Poole 627 Steele v. Haddock 27 V. Midland Railway Co. 313 Steer v. Steer 163 Steiner v. Heald 412, 413, 418 Stent V. Baylis 31 Stephens v. Cady 449 Ex parte 64, 67, 153, 583 V. Orman 39 V. Venables 65, 68 V. Workman 646 Stephenson v. Wilson 22, 54 Sterne v. Beck 82 Sterry v. Clifton 499 Stevens v. Benning 449, 524 V. Brett 473 V. Keating 215, 217, 401, 412, 418, 417, 420, 429, 431, 482 V. Lord 194 V. Praed 54 V. South Devon Railway Co. 556, 557, 566 V. Warren 120 V. Wildy 448, 450, 455 TABLE OP CASES CITED. li Pago Stevenson v. Anderson 119, 120, 128, 130 V. Moore 248 Steward v. Winter 505 Stewart v. Alliston 537 V. Great Western Railway •Co. 6, 26, 27, 32, 587, 589 Stewart's Case 552 Stii3F V. Cassell ■ 495 Stimpson v. Putnam 638 Stimson v. Hall 67, 68 Stirling v. Maitland 501 Stockbridge Iron Co. v. Hudson Iron Co. 55 Stockdale v. Onwliyn 451 Stocker v. Brocklebank 525 V. Warner 425 V. Wedderburn 496, 530 Stocking V. Llewellyn 613 Stockport Waterworks Co. v. Mayor, &c., of Man- chester 335, 542, 543, 544 V. Potter 378, 382, 385, 392 Stocks V. Dobson 101 Stockton & Darlington Railway Co. V. Brown 302 Stockton & Hartlepool Railway Co. V. Leeds & Thirsk Railway Co. 9, 520 Stokes V. City Offices Co. 220, 223, 226, 359 V. Wilson 18 Stokoe V. Singers ' 358 Stone V. Cason 646 V. Commercial Railway Co. 304, 305, 314 V. Godfrey 52 V. Lidderdale 101 Stonehouse v. Stonehouse 151 Storer v. Great Western Railway Co. 521, 533, 535, 645 :- V. Jackson 630 Story V. Jersey City & Bergen Plank Railroad 9 V. Lord Windsor 285 Story's Executors v. Holcombe 457 Stourbridge Canal Co. v. Lord Dudley 371, 374 Stout V. Cook 604 Stowe V. Thomas 459 Strachey v. Francis 265, 266 Straker v. Ewing 596 Strange v. Bell 120 V. Fooks 77 Strathmore, Lady v. Bowes 274 Stration v. Graham 514 Street v. Rigby 143, 515 Stribblehill v, Brett 50 Stribley v. Hawke 11 Strickland v. Strickland 587 Strode v. Parker 80 Strong V. Foster 72 Pago Stroyan v. Knowles 368 Strutt V. BoTingdon 385 Stuart D Ancell 633 V. London &' North West- ern Railway Co. 553, 564 V. Welch 122, 123 Stubbs V. Lister 95 V. Sargon 105 Stupart V. Arrowsmith 61, 550, 552 Sturge V. Eastern Union Railway Co. 550, 555, 560 Sturgeon v. Hooker 628 Sturgis V. Knapp 570, 622 Sturz V. De la Rue 404, 419, 423 Sudlow V. Dutch Rhenish Rail- way Co. 159 Suffem V. Butler • 630 Suffield V. Brown 356, 865, 393 Sullivan v. Finnegan 597 Sumner v. Bromilow 255 Sunderland v. Newton 255, 523 , Ex parte Freemen of 220 Suse V. Pompe 501 Sussex Peerage, Re 301 Sutcliffe V. Booth 387 Sutton V. Mashiter 109 V. Lord Mountfort 351 V. Mumford 611 V. Mayor, &c., of Norwich 296, 326, 346 ^ V. South Eastern Railwaj' Co. 543 Sutton Harbor Co. v. Hitehens 345 Swain v. Seamens 43, 202 Swaine v. Great Northern Railway Co. 42, 205, 222, 223, 338, 362 Swallow V. Wallingford 211 Swan V. North Australasian Co. 34 Swansborough v. Coventry 355 Swayne v. Swayne 99 Sweet V. Benning 450, 452, 454, 458, 460, 462 V. Cator 213, 439, 443, 448, 449 V. Maugham 207, 440, 442, 445, 450 V. Shaw 213, 489, 441, 450, 454, 462 Sweetman v. Metropolitan Rail- way Co. 315 Swift V. Swift 523 Swinbourne v. Nelson 405 Swinfen v. Swinfen 220 Switzerland, Bank of v. Bank of Turkey 565 Syers v. Brighton Brewery Co. 536, 550 V. Jonas 501 Sykes v. Sykes 477, 485 V. Manhattan Elevator & G. D. Co. 400 Symes v. Magnay 131 Synnot v. Simpson 173 lii TABLE OF CASES CITED. Page Taff Vale Eailway Co. v. Nixon 58, 60 Tuft V. Harrison 18, 20, 547 Taggart o. Hewlett 498 Talbot V. Ford 495 V. Hope 289 w. Staniforth 48 Tallis V. Tallis 508, 509, 510, 511, 512, 513 Tamworth, Lord v. Lord Ferrers 271, 274 ■ Tangye v. Stott 218, 219, 437 Tanner v. Elworthy 46 V. European Bank 120 V. Smith 537 u. South 'V^ales Railway Co. 322 Tapling v. Jones 355, 356, 358, 386 Tapp V. Lee 36 Tatham v. Parker 147, 599, 645 Taunton v. Royal Insurance Co. . 565 Tawney v. Lynn & Ely Railway Co. 306 Taylor v. Allen 161 V. Ashton 34 V. Burgess 78 V. Caldwell 498 V. Carpenter 475, 480 V. Clemson 305, 317 V. Davis 165, 166, 535 V. Hare 424 V. Hayling 60, 62 V. Hughes 23, 49, 133, 546, 547 V. Manners 74 V. Okey 67 V. Pugh 49 , Re 305 V. Salmon 5, 45 V. Shepherd 22 V. Taylor 477, 485, 486 V. Waters 106, 191 Teague v. Richards ' 108 Tear v. Freebody 327 Temple v. Bank of England 591, 608 Temple Pier Co. v. Metropolitan Board of Works 327, 397 Templeton v. McFarlane 421 Tenant v. Braie 50 V. Goldwin 356, 390 Ten Eyck v. Holmes 77 Tennant's Case 413, 414 Terrell v. Higgs 22, 26 Terrewest v. Featherby 113 Tetley v. Easton 421, 425, 429 Teynham v. Herbert 135, 136 Thaie v. Quan Wan 646 Thames & Medway Canal Co. v. Nash 131 Therry v. Henderson 118 Thicknesse v. Lancaster Canal Co. 307 Thiedemann v. Goldschmidt 15, 16, 33 Thom V. Bigland 34 Thomas v. Archbishop of Canter- bury 81 V. Daw 326 V. FoxweU 427, 428, 430 V. Hobler 548, 549, 551, 563 V. Hunt • 425 V. Jones 134, 247 — , — V. Oakley 292 V. Powell 54 V. Thomas 357, 358, 365, 385 V. Welch 423, 425 Thompson v. Berry ' 16 V. Charnock 143 V. Derham 6, 13, 584 V. Engle 103 V. Falk 178 V. Geary 631 V. Guyon 94 V. Hudson 82 V. James 411 V. University of London 575 V. Smith 96 V. Spiers 99 V. Stanhope 185, 187, 189 V. Symonds 465 V. Webster 49 Thomson, Re 188 Thome v. Taw Vale Railway Dock Co. 297, 398, 501 Thorneycroft v. Crockett , 261 Thornhill v. Thornhill 640 Thornton v. Court 587 V. Finch 580 V. Kendall 518, 524 V. McKenna 26 Thorpe v. Goodall 585 V. Hughes 18, 28, 29 Thrale v. Ross 15, 16 Thurber v. Martin 381 Tickel V. Short 61 Tink V. Rundle 146, 305 Tinkler v. Wandsworth District Board of Works 296, 327, 572 Tinsley v. Lacy 441, 454, 457. 459 Tipping V. Eckersley 197,198,264, 393, 394, 494, 521, 532 V. St. Helen's Smelting Co. 226, 347, 360, 361, 362, 364, 398 Todd ». Gee 494 V. Taft 535 ToUemache v. ToUemache 278 Tomkins v. Tomkins 16 Tomson v. Judge 45 Tonnins v. Prout 594 Tonson v. Walker 450, 454 Tooker v. Annesley 278, 279, 281, 286 Toulmin v. Reed 131 Townley v. Deere 122, 126, 130, 131 Town of Salop v. Attorney-General 175 Townrow v. Benson 59, 64, 68 Townsheud, Lord v. Stangroom 55 TABLE OP CASES CITED, liii Tracy v. Tracy 236, 256 Traill v. Baring 14, 16, 32, 83, 35, 37 Traitou v. Traiton 50 Transatlantic Co. v. Pietroni 158, 159 Trappes k. Harter 253 Travers v. Lord Stafford 632 Trenchard v, Wanley 32 Trevillian v. Mayor, &c., of Exeter 573 Trent Navigation Co. v. Harley 76 Trevelyan v. Charter 45, 46 Trinich v. Bordfield 153 Trotman v. Wood 424 Trott V. Hughes 568 Troughton v. Hunter 170 Truscott 0. Merchant Tailors' Co. 356, 857 Trusler v. Murray 450, 455 Try V. Try 147 Tryon v. Eobenson 646 Tuck V. Silver 212, 621 Tucker v. Laing 72 Tufton V. Harding 125, 126, 147 V. Kenniston 597 Tulk V. Moxhay 501, 580 TuUitt V. TuUitt 258, 279, 281 Tunstall v. Boothby 102 Turkey, Bank of v. Ottoman Bank 20 V. Ottoman Co. 568 Turkington v. Kearnan 263 Turner v. Blamire 296, 346, 348 V. Buck 252 V. Connor 118 V. Evans 167, 497, 509, 512 V. Harvey 36 V. Major 166, 167 V. Mirfield 336, 389, 390 V. Robinson 184 V. Spooner 354, 359 V. Turner 2, 146, 212, 607, 621 V. Winter 419, 420 V. Wright 21, 256, 259, 260, 269, 270, 536, 593 Turton v. Benson 49 TweddeU v. Tweddell 46 Twisleton v. Griffiths 48 Twort V. Twort 257, 285 Tyler v. Black 34 V. Wilkinson 879 Tyrrell v. Bank of London 45 U. Udal V. XJdal 280 Underbill v, Horwood 47 Union Bank of Manchester v. Beech 74 United States ;;. Prioleau 2, 595, 596 Unwin v. Heath 481, 482 Updegraflf -u. Crans 542 Updike V. Bartles ' 230 Urmston v. Pate 54 Usborne v. Usborne 262 Van V. Corpe 39 Van Bergen v. Van Bergen 332 Van Buren v. Digges 82 Vance v. East Lancashire Railway Co. 556, 557 Vanderwerker v. Vermont Central Railroad 148 Vanderbergh v. Van Bergen 381 Vandergucht v. De Blaquiere 598 Van Dewater v. Kelsey 6 Vane v, Cockermouth and Darling- ton Railway Co. 302 V. Lord Barnard 268, 269 . Vanoren v. Mayor of New York 572 Vanquelin v. Bouard 137, 138, 139 Van Sandau, Ex parte 583,585,641,646 V. Rose 625, 639 Vansittart v. Vansittart 523 Vaughn, Ex parte 86 Vauxhall Bridge Co. v. Spencer 49 Vavasour's Case 245 Vernon v. Stephens 81 V. Thelusson 109, 111, 114, 115, 117 V. Vawdry 62 Vesey v. Wilks 685 Vice V. Thomas 289, 830 Vickary v. Wedger 128 Viekers, Re - 101 Victoria, Ee 149 Vidi V. Smith 400, 485, 437 Vigers v. Pike 88, 89 Vincent v. Godson 111, 112 Vincent v. Spicer 268, 275 Viner v. Vaughan 246, 257 Vipan V. Mortlock 631, 632 Vivers v. Tuck 495, 513 Vorley v. Bennett 27 VuUiamy v. Noble 67 Vyvyan v. Vyvyan ' 129 W: Wade V. Coope 78 Wadman v. Calcraft 83,84 Wafer v. Mocatto 85,89 Wake V. Conyers 5 V. Harrop 27,55 Wakefield «. Duke of Buccleugh 212, 622 Wakley v. Froggatt 27 Walbank v. Sparks 128 Walcot V. Walker 186, 451 Waldo V. Waldo 278, 279 Walford v. Adie 551 Walker v. Fletcher 328, 390 V. Jones 12, 192 V. London and Blackwall Railway Co. 314 liv TABLE OP CASES CITED. Page Walker v. Micklethwaite 25, 26, 144, , 145, 606 V. Peay 604 —, V. Smallwood 593 V. Stewart 391 V. Symonds 35 Wallace v. Attorney-General 511 V. Camptell 160 Wallington v. Dale 412, 427, 428 Wallis V. Bastard 63, 64, 67 V. Day 508 V. Harrison 42 V. Morris 579 V. Duke of Portland 48 V. Wallis 345, 598 Wallwynn v. Coutts 172 Walmesley v. Booth 80 Walmsley v. Child 6, 56 Walsh, Re 585 V. Trevanion 499 Walsham v, Stainton 57 Walter v. Selfe 351, 361, 862 Walton V. Crowley 484 V. Johnson 105, 250, 522, 606 V. Layater 424, 432 V. Potter 430 Wandsworth Board of Works v. London and South Western Rail- way Co. 200, 296, 321, 338, 340 Wanstead Board of Health v. Hill 861 Warburton v. London and Black- wall Railway Co. 840, 368, 634, 635 V. Parke 358 Ward V. Byrne 507 V. Higgs 217, 232, 330 V. Hipwell 173 V. Key 227 — V. Society of Attorneys 557, 571 V. Swift 146 — V. Ward 858 Warden v. tJssher 254 Warden v. Jones 31, 89 Warder v. Stillwell 164, 168 Wardle v. Brocklehurst 387, 392 V. Claxton 619 Ware v. Grand Junction Water- works Co. 9, ,519, 557 V. Horwood 22 V. Regent's Canal Co. 202, 206, 209, 296, 299, 300, 317, 334, 341, 842, 343, 891, 548 Waring v. Manchester, Sheffield, and Lincolnshire Railway Co. 57, 215, 495 Warington v. Wheatstone 120, 123, 125, 127, 128 Warner, Ex parte 599 Warren v. Rudall 252 Warter v. York 598 Wartnaby v. Shuttleworth 66 Page Warwick, Earl of v. Duke of Beau- fort 635 Warwick v. Hooper 93, 425 Wasoji V. Sanborn 6 Waterloo Life Insurance Co., Re 106 Waterlow v. Bacon 19, 26, 27, 30, 211 Waterpark, Lord v. Austin 238, 248 Waters v. Bailey 46 V. Taylor 169 Watherell v. Howels 245 Watkins v. Brent 163 Watson V. Alcock 18, 30, 71, 77 V. Bales 95, 546 V. Hunter 288 V. Lyon 195 V. Marston 52 V. Sutherland 5 Watteeu v. Billam 617 Wattleworth v. Pitcher 613 Watts V. Brooks 52 V. Christie 66 V. Cummins 39, 54 V. Hammond 122, 128 V. Jefferyes 579 V. Shuttleworth 7.1, 77 Weale v. West Middlesex Water- works Co. 185, 541 Weatherley v. Ross 221 Weaver, Re 147, 606, 607 Webb V. Bird 354, 360, 868, 369, 383 V. Direct London and Ports- mouth Railway Co. 552, 564 V. Hewitt 73, 74 V. Hunt 360 V. Manchester and Leeds Railway Co. 302, 819 V. Plummer 263, 522 V. Portland Manufacturing Co. 379, 381 V. Powers 441, 443, 445, 455, 456, 457 V. Rorke 31 V. Rose 184 V. Lord Shaftesbury 171 Webber v. Farmer 133 V. Gage 287 Webster v. Dillon 521, 529 V. South Eastern Railway Co. 268, 296, 297 V. Taylor 600 V. Webster 68, 99, 102, 153, 168, 479 Wedderburn i'. Llewellyn 621 V. Wedderburn 45, 105, 156 158, 160, 607 Wedmore v. Mayor, &c., of Bris- tol 222, 866 Weeks v. Hew'ard 848, 384, 394 V. Staker 136 V. Taylor 19 TABLE OP CASES CITED. Iv Page Weeton v. Woodcock 255, 333 Welby V. Duke of Eutland 136 Welch V. Knott 486, 488, 489, 490 Weld V. South Western Bailway Co. 304, 317 Wellesley, Lord v. Lord Morning- ton 50, 624, 639, 643 V. Wellesley 100, 282, 283 Wells V. Cooper 59 V. Poster 101, 102 V. Ody 352 V. Smith 97 V. Wall 16 Wenmouth v. Collins 898 Wentworth v. Turner 237 West V. Francis 464 w. Jones 34 V. Swinburne 117 Western v. M'Dermott 204, 496, 497, 502, 530, 532 Westhead v. Keene 403, 404 Wethered v. Wethered 49 Wetmore v. Law 631 Whaley v. Branoker 328 V. Laing 337 V. Norton 50 Whalley v. Ramage 66 .Wharton v. May 61 Whatman v. Gibson 530 Wheatley v. Bastow 75, 77, 100 V. Chrisman 385 V. Slade 536 Wheaton v. Peters 182, 439, 445 Wheeler v. Gray 376 V. Malins 633 V. Smith 52 Wheelton v. Hardisty 38, 499 Whipple V. Hutchinson 402 Whiston V. Dean and Chapter of Rochester 174, 575, 576, 577 Whitaker v. Rush 05 Whitbread v. Jordan 195 Whitcher v. Hall 71 White, Ex parte 585 V. Bass . 356 V. Carmarthen, &c.. Bail- way Co. 550, 553, 554, 559 V. Cohen 386, 337, 338, 363 V. Corbett 78 V. Geroch 184 . V. Hall 595 V. Leatherdale 117, 118 . V. M'Cann 239, 251 V. Bishop of Peterborough -582 V. Smale 206 V. Steinwaoks 29, 631 V. Wakley 42 V. Walsh 248 V. Warner 87 Whitehead v. Bennett 18, 253, 496 -^— V, Lynes 144 «.' Parks 391 Whitehouse v. Partridge 602 Whitelegg v. Whitelegg 237 Whitfield V. Bewit 246, 257, 280 V. Hales 598 V. Hodges 73 Whittaker v. Howe 167, 507, 512, 535 Wliittingham v. Burgoyne 21 V. Wooler 443, 453 Whitton V. Jennings 405 Whitworth v. Gaugain 578, 580, 618 V. Rhodes 193, 212 Whyte V. O'Brien 24, 66 Wickenden v. Webster 504 Wickens v. Evans 506, 509 Wickham v. New Brunswick, &c.. Railway Co. 580 V. Wickham 278 Wicks V. Hunt 198, 203, 206, 213, 222, 231, 232, 339, 349, 391 Wightman v. Wheelton 617, 618 Wilby V. West Cornwall Railway Co. 565 Wilcox V. Drake 598 Wild V. Hillas 54 Wilde V. Ashley 133 V. Minsterley 368 Wiles V. Gresham 171, 592 Wilkins v. Aikin 441, 453, 455, 457 V. Wood 250 Wilkinson v. Cummins 215, 623 V. Haygarth 248 V. Lewis 617 V. Rogers 493, 504 Willan V. Willan 48 Willard v. Tayloe 536 Willes V. Levett 106, 191 Willey V. South Eastern Railway Co. 309 William v. Heath 393 Williams v. Ayrault 14 V. BagnaE 367 V. BaUy 506 V. Bayly 47, 50, 51 , V. Bingley 166 V. Duke of Bolton 256, 277, 280 V. Davies 613 V. Day 269 V. Fitzlmgh 597 V. Flight 15, 56 V. Earl of Jersey 204, 227, 350 V. Johns 625 V. Johnson 484 V. Lee 22, 23 V. Macnamara 271 V. Morland 381, 391 V. Morris 606 V. Osborne 476, 478, 486 V. Owen 77 V. Price 77 V. Prince of Wales Assur- ance Co. 177 Ivi TABLE OP CASES CITED. ■Williams v. Roberts 6, 14, 16, 17, 21, 23, 24, 28, 201 V. Sadler 21 V. Salmon 550 — V. South Wales Railway Co. 309 V. St. George's Harbor Co. 563, 632 V. Thomas 188, 229, 230 V. Williams 46, 181, 220, 259, 512, 525 Williamson v. Gihon 50 Willis V. Childe 175 V. De Castro 75 V. Jernegan 60, 61 ■ V. Willis 36 Wilmot V. Leonard 22, 23 Wilson, Ex parte 74 V. Gabriel 67, 68, 101 V. Hart 530 V. M'Math 399 V. Metcalfe 147 V. Sherman 409 V. Short 32, 33, 39 V. Story 133 V. Townend 332, 336, 337, 351 V. West Hartlepool Rail- way and Harbor Co. 43 V. Wethered 104 V. Willes 248 — V. Wilson 506 Winch V. Birkenhead, Lancashire, and Cheshire Railway Co. 323, 549, 558, 561 Winchester, Bishop of v. Knight 248, 285 Windover v. Smith 466, 468, 469, 470 Winebrenner v. Colder 570 Wing V. Harrey 92, 93 Wingate v. Roberts 589 V. Haywood 16 Winter v. Brockwell 42, 360 Winthrop v. Murray 85, 87 Wintle V. Bristol and South Wales Railway Co. 206, 298, 301, 319, 321, 337, 544 Wishart v. Wyllie 377 Withall V. Tuckwell 23 Wither v. Dean and Chapter of Winchester 264, 265, 266 Witherington v. Banks 261 Withers v. Denmead 628 Witmer's Appeal 262 Wodehouse v. Parebrother 27 Wolcott V. Mellick 340 WoUaston's Case 95 Wombwell v. Bellasyse 212, 270, 271, 272 Womersley v. Dally 602, 522 Wood, Ex parte 585 V. Abrey 47, 48 V. Barker 49 Page Wood V. Beadell 605, 607 V. Boosey 464, 471 V. Charing Cross Railway Co. 297, 308, 346 V. Cockerell 403 V. Copper Mines Co. 27 V. Downes 46 V. Draper 572 V. Dwarris 27 V. Dwight 637 V. Epsom and Leatherhead Railway Co. 302, 303, 305, 319, 320 V. Gaynon 252 V. Ledbitter 42 V. Lyne 128, 129 V. North Staffordshire Rail- way Co. 318 V. Rowcliffe 594 V. Seeley 136, 604 V. Sutchffe 199, 200, 224, 225, 226, 350, 382, 394, 495 V. Waud 378, 380, 382, 387, 388 • V. Zimmer 414 Woodbury Sav. Bank v. Charter Oak Ins. Co. 55 Woodcock V. Oxford, &c.. Railway Co. 216 Woodhams v. Anglo-AustraUan Co. • 548 Woodhatch v. Freeland 614 Woodhouse v. Shepley 49 Woodley v. Boddington 642, 645 Woodman v. Robinson 198, 229, 267, 399 Woodroffe v. Daniel 634 Woodward v. Earl of Lincoln 637, 644 V. Gyles 517 V. liing 625 Woodworth v. Stone 402, 432 WooUam v. Ratcliff 484, 485, 486, 491 Worcester's Case, Dean and Chap- ter of 264 Wormald v. De Lisle 206 Worsley v. Frank 54 V. South Devon Railway Co. 315 V. Stewart 249 Worthington v. Gimson 498 Wright V. Atkyns 256, 259, 260, 605, 607 V. Howard 377, 379, 382, 383, 884 V. Lord Maidstone 6 V. Morley 77 V. Nutt 69, 77 V. Simpson 69, 72, 76, 77, 160 V. Tallis 451 V. Vanderplank 46 V. Ward 120, 122 V. Williams 384 TABLE OP OASES CITED. Ivii Wrigley v. Lancashire and York- shire Railiyay Co. Swainson Page Wrixon v, Condran Wroe V. Clayton Wyatt M. Barnard Harrison Wyke V. Rogers Wyley v. Exhall Coal Mining Co. Wyn V. Lambert Wyndham v. Way 241, Wynne v. Griffith V. Jackson V. Lord Newborough Wyley Canal Co. v. Bradley 371, Wythes v. Labouchere Wyvill V. Bishop of Exeter 319 49 294 630 451, 158 368 74 297 46 254 537 28 207 374 78 602 Xeres Wine Co., Ee 605 Yates V. Jack Yeates v. Roberts 351, 353, 857, 360 568 Yeomans v. Williams Yescombe v. Landon Yetts V. Norfolk Railway Co. V. Palmer Page 40,75 679 567 162 77 YoDge V. Reynell York, Mayor, &o., of v. Pilking- ton 1, 2, 136' and North Midland Rail- way Co. V. Hudson 554 V. Reg. 299 Buildings Co. v. M'Kenzie 45 County M. F. Ins. Co. v. Brooks 71 Yorkshire, Doncaster, and Goole Railway Co., Ee ■ 320 Yovatt V. Winyard 177 Young 0. Brompton Waterworks Co. 565 V. Fernie 217, 220, 408, 413, 417 V. Macrae 476 V. Smeeth 499 Youngblood v. Schamp 613 Zabriskie v. Vreeland Zulueta w, Sieveking 617 595 STATUTES REFERRED TO. 52 Hen. 3, c. 23 (Marlbridge) 239 6 Edw. 1, c. 5 (Gloucester) 239 18 Edw. 1, c. 18 (Westminster) 578, 579 35 Edw. 1, Stat. 2 265 23 Hen. 8, c. 5 (Commissioners of Sewers) 347 32 Hen. 8, c. 34 502 1 Bliz. 0. 19, s. 5 (Restraining Statute) 264 13 Eliz. c. 10, s. 3 (Eestraining Statute) 264 0. 20 581 14 Eliz. c. 11 264 18 Eliz. c. 11 264 21 Jae. 1, c. 3, s. 6 (Statute of Monopolies) 409 8 & 9 "Will. 3, c. 11 81 9 & 10 Will. 3, c. 15 (Arbitration) 140, 141 4 Anne, c. 16, ss. 12, 13 81 6 Anne, c. 81 251 1 Geo. 1, c. 19, ss. 11, 12 592 2 Geo. 2, e. 22 63 4 Geo. 2, c. 28, ss. 2-4 83 8 Geo. 2, c. 13 (Engravings)J 464, 465, 466 8 Geo. 2, 0. 24 63 7 Geo. 3, c. 38 (Engravings) 464 14 Geo. 3, c. 78 (Party WaUs) 251, 376 15 Geo. 3, c. 53 (University Copy- right) 461 17 Geo. 3, c. 57 (Engravings) 464, 466 38 Geo. 3, c. 71 (Copyright in Busts, &o., &c.) 470 39 & 40 Geo. 3, c. 36 591, 592 41 Geo. 3, c. 27 462 47Geo. 3, c.'25,s. 4 102 51 Geo. 3, c. 64 592 54' Geo. 3, c. 56 (Copyright in Sculpture) 466, 470 57 Geo. 3, c. 29 326 10 Geo. 4, c. 56, s. 27 142 1 & 2 Wm. 4, c. 58 (Interpleader) 119, 124 Page 2 & 3 Will. 4, c. 71 (Prescription) 354, 360 s. 2 383 8. 3 356 s. 4 . 356, 383 3 & 4 Will. 4, c. 15 (Dramatic Copy- right) 462, 463, 464 c. 22 (Sewers) 347 5 & 6 Will. 4, c. 50 348 c. 65 (Copyright in Lectures) 190, 461 c. 76 (Municipal Cor- porations Act) 571, 572 c. 83 (Disclaimer) 425 6 & 7 Will. 4, c. 59 464 7 WiU. 4 & 1 Vict. 0. 78 572 1 & 2 Vict. c. 100 679, 581 5 Vict. c. 5, ss. 4, 5 591 5 & 6 Vict. c. 45 ( Copyright in Lit- erature )440, 446, 462, 465 s. 3 447 s. 13 447,448 s. 15 448 s. 18 460 ss. 20, 21 463 s. 22 464 s. 23 473 s. 24 447 s. 25 449 s. 26 441 s. 27 462 5 & 6 Vict. c. 100 (Copyright in Designs) 466, 467, 468, 470, 473 6 & 7 Vict. c. 65 (Copyright in De- signs) 466, 469, 470 7 & 8 Vict. c. 12 (International Copyright) 465, 470, 471 c. 69 (Disclaimer) 426 Ix STATUTES REFERRED TO. Page 8 & 9 Vict. c. 18 (Lands Clauses Act) 303, 305 s. 18 304-307 ss. 21, 23 306, 311 s. 63 311 s. 68 311, 343, 344 s. 84 307, 308 s. 85 308-310, 314,393 s. 92 306, 312-314 ss. 93, 94 314 s. 114 314 ss. 121, 122, 123 315 s. 124 316 c. 20 (Railways Clauses Act) 303, 304 s. 7 317 ss. 11-15 317-319 s. 16 304, 318-320, 344 s. 17 304 s. 19 320 ss. 32-42 297 s. 46 320 s. 49 320 s. 50 321 s. 53 321 s. 76 322 s. 77 371 s. 78 371, 373, 374 s. 81 375 s. 87 322, 323 s. 92 323 s. 112 560 ss. 115, 117 324 c. 42 560 c. 96 560 10 & 11 Vict. c. 17 (Waterworks Clauses Act) 310, 393 11 & 12 Vict. u. 63 (Public Health Act) 326, 348 ss. 45, 46 326 12 & 13 Vict. c. 106 (Bankruptcy Act) 584 s. 171 63 13 & 14 Vict. c. 35 (Turner's Act) s. 19 108, 109 s. 24 108 u. 104 (Copyright in Designs) 466, 468, 469 14 & 15 Vict. c. 25, s. 3 (Agricul- tural Fixtures) 253 15 & 16 Vict. u. 12 (International Copyright) 464, 470, 471 8. 14 (Litho- graphs) 464 c. 76 (Common Law Procedure Act, 1852) SB. 210-212 83 Pago 15 & 16 Vict. 0. 80, s. 42 ( Scientific ETidenoe) 220 u. 83 (Patent Law Amendment Act) 400 c. 83, ss. 6, 8, 9 422 s. 26 432 s. 35 423 3. 39 425 s. 41 407 s. 42 435, 437 s. 43 437 c. 86 ( Chancery Pro- cedure) 108 s. 5 608 s. 6 608 s. 11 609 ss. 15, 16 623 s. 37 613 s. 40 618 s. 58 28 s. 59 617 16 & 17 Vict. c. 137 (Charitable Trusts) s. 22 176 17 & 18 Vict. u. 31 (Railway Traf- fic and Canal Act) 323, 543 c. 82 109 c. 104 (Merchants Shipping Act) 96, 150 s. 65 151, 601 s. 514 150 c. 125 ( Common Law Procedm-e Act) ss. 3-16 141 s. 17 141, 142 s. 58 329 s. 61 113 ss. 79, 81, 82 (In- junctions) 233 s. 83 (Equitable Plea) 25-27 18 & 19 Vict. c. 67 , 112 c. 91 (Merchant Ship- ping Act) 96 c. 120 (Metropolis Local Manage- ment Act) 382 ss. 135, 150-153 326 . s. 143 327 s. 211 326 c. 121 (Nuisances Removal Act) 348 c. 122 (Metropolitan Buildings Act) 327, 376, 377 19 & 20 Vict. u. 97 (Mercantile ' Law Amend- ment Act) 77 STATUTES REFERRED TO. Ixi 19 & 20 Vict. 0. 98 (Local Govern- ment Act) 326 c, 120 (Leases and Settled Estate Act) ss. 11 23 279 20 & 21 Vict. c. 77 (Probate Act) 152, 163 c. 86 (Divorce, &e., Act) 161 21 & 22 Vict. c. 27 (Cairn's Act) 104, 221-224, 436 a. 2 221, 222, 223 ss. 3-5 218, 219, 224 s. 6 224 c. 75 560 c. 70 (Copyright in Designs) 466, 468 c. 98 (Local Govern- ment Act) 348 c. 104 (Metropolis Local Manage- ment Amend- ment Act) s. 81 335 22 & 23 Vict. c. 35, ss. 4-9 (Poli- cies of Insur- ance) 87 23 & 24 Vict. c. 38 679 c. 38, s. 14 (Order for Administration) 108, 109 0. 41 560 c. 126, s. 12 (Inter- pleader) 120, 124 u. 136 s. 14 (Endowed Charities) 176 Page 24 & 25 Vict. c. 73 (Copyright in Designs) 466,467, 470 u. 134 (Bankruptcy, &c.. Act) s. 134 102 ss. 192-198 107, 58 25 & 26 Vict. c. 42 (Rolts Act) 217, 222 s. 2 220, 224 s. 3 218 s. 4 25, 220 c. 63 (Merchant Shipping Amendment Act) 96 c. 68 (Copyright in Drawings, Photographs, &c.) 466 c. 89 (Companies Act) 567 ss. 85, 87,201, 202 106, 297 c. 93 (Thames Em- bankment Act) 327 26 & 27 Vict. c. 92 (Railways Clauses Act) s. 4 318 s. 8 319 ss. 10, 11 324 c. 118, ss. 13-15 560 0. 119 (Exhibition Medals Act) 487 27 & 28 Vict. u. 112 579 A TREATISE LAW AND PEACTICE OF INJUNCTIONS IN EQUITY. A TREATISE LAW AND PRACTICE OF INJUNCTIONS IN EQUITY. CHAPTER I. THE NATURE AND THE LIMITS OP THE JURISDICTION OF THE COURT OF CHANCERY. 1. Civil property is the subject-matter of the jurisdiction of the court of chancery. 2. Matters of a political character not within its jurisdiction. 3. Nor will the court interfere in favor of the laws of another country in conflict with the policy of its own, 4. Nor with the public duties of any department of government, foreign sovereignty, &c. 5. Jurisdiction is not entertained if the remedy at law is adequate. -^Meaning of "concurrent" jurisdiction. 6. "Complete justice" comprises what in view of courts of equity. — Discretion of court. 7. Want of legal remedy does not necessarily create an equitable right. 8. Court of chancery is not deprived of its jurisdiction once assumed except by express statutory enactment. 9. The exercise of its jurisdiction is discretionary with the court. 10. Court of equity will not allow itself to be made the instrument of injustice. 11. Lord Eedesdah's description and division of the jurisdiction of courts of equity. 12. This jurisdiction operates inpersonam. 13. This fact extends instead of contracting its powers. 14. Court has power to restrain a man from applying to parliament or foreign legislature. 15. Modes of relief in equity twofold, — remedial and preventive. 1. The subject-matter of the jurisdiction of the court of chancery is civil property. The court is conversant only with questions of property and the maintenance of civil rights. In- jury to property, whether actual or prospective, is the founda- tion on which the jurisdiction rests (a). Tlie court lias no jurisdiction in matters merely criminal or merely immoral, which do not affect any right to property.^ If a charge be of a (a) Att.-Gen. v. Sheffield Gas Co., Brandreth v. Lanee, 8 Paige, 24. See 3 D. M. & G. 304, 320 ; Emperor of also Kneedler v. Lane, 3 Grant's Cases, Austria v. Day, 3 D. F. & J. 217, 253. 523. 1 Burnett v. Craig, 30 Ala. 135; 1 [1] * 2 NATURE AND LIMITS [CH. I. criminal nature, or an offence against the public peace, and does not touch the enjoyment of property, jurisdiction cannot be entertained. The court has no jurisdiction to restrain or prevent crime, or to enforce the performance of a moral duty, ^except so far as the same is concerned with rights to property; nor can it interfere on the ground of any criminal offence com- mitted, or for the purpose of giving a better remedy in the case of a criminal offence, or for putting a stop to acts, which, if permitted, would lead to a breach of the public peace (5). The possible effect of the acts and conduct of one man on the repu- tation of another, is not a ground for the interference of the court, unless there be an injury to property (c). An in- * 2 junction * cannot therefore be had to restrain the pub- lication of a libel (c?), or proceedings in a criminal matter (e). But if an act which is criminal touches also the enjoyment of property, the court has jurisdiction, but its inter- ference is founded solely on the ground of injury to prop- erty (/). If a party, who might proceed by indictment, chooses to consider the matter not as an indictable offence, but thinks proper to go to a court of law for recompense in matter of damages, the case becomes a civil action, and the defendant is entitled to all equities which defendants have in general cases in actions for damages (^). 2. Nor do matters of a political character come within the jurisdiction of the court of chancery. The court will not interfere with the view of preventing revolution in a foreign country, or in favor either of the prerogative of a foreign sov- ereign or the political rights of his subjects, or in aid of the revenue laws of a foreign country. But if a case of injury to the property of a foreign sovereign or his government or his (6) lb. Mayor of York v. Pilking- Macaulay v. Shackell, 1 Bligh, N. S. ton, 2 Atk. 302; Gurtside v. Outram, 96, 127. Comp. Turner v. Turner, 15 3 Jur. N. S. 40. Jur. 218. (c) Clarke u.IVeeman, 11 Bear. 112; (/) Mayor of York v. Pilkington, Cox V. Cox, 11 Ha. 124. 2 Atk. 302; Macaulay v. Shackell, 1 (d) Gee v. Pritchard, 2 Sw. 402; Bligh, N. S. 127 ; Att.-Gen. u. Sheffield Martin v. Wright, 6 Sim. 297; Clarke Gas Co., 3 D. M. & G. 304, 320; Em- V. Freeman, 11 Beav. 112. See Em- peror of Austria v. Day, 3 D. F. & J. peroi'of Austria v. Day, 3 D. E. & J. 217, 258. 217, 253. (g) Macaulay v. Shackell, 1 Bligh, (e) Holderstafife v. Saunders, 6 Mod. N. S. 96, 127. 12 ; Montagu v. Dudman, 2 Ves. 396 ; [2] CH. I.] OF' THE JURISDICTION. *3 subjects be made o&t, the court has jurisdiction to interfere at the suit of a foreign sovereign (Ji).^ 3. Nor will the court interfere in favor of any laws of a for- eign country which are in conflict with our own laws, on subjects of religion and morality (i). Where the courts of one country are called upon to enforce a contract entered into in another, it is not enough that the contract should be valid according to the laws of that country ; for if any part of the contract is inconsistent either with the law or policy of the former, the contract will not be enforced even as to another part of it, which would not be open to objection, and may be the only part remaining to be performed (Jc). 4. * The court of chancery has no jurisdiction to * 3 interfere with the public duties of any of the depart- ments of government (m), or with the sovereign acts of a foreign government (w), or to make a decree against a foreign ambassador who does not submit to the jurisdiction (o). 5. Though the jurisdiction of the court of chancery is lim- ited to matters which concern civil property, jurisdiction will not be entertained in all cases which touch the enjoyment of property. If the remedy to be had in the courts of ordinary jurisdiction is sufficient for the purposes of complete justice, the court of chancery will not entertain jurisdiction. The suf- ficiency or the inadequacy, as the case may be, of the powers of the courts of ordinary jurisdiction for effectuating the purposes of complete justice is the rule and measure which regulates the course of the court of chancery in assuming or declining (h) Emperor of Austria v. Day, 3 named in the record. Therefore, where D. r. & J. 217 ; United States v. Pri- in a suit in equity to compel the con- oleau, '2 H. & M. 559 ; 2 L. R. Eq. 659. veyance of certain real estate, standing Comp. City of Berne v. Bank of Eng- in the name of the respondent, he plead- land, 9 Ves. 347; Jones v. Garcia del ed to the jurisdiction that he was, and Rio, T. & R. 299. was from the first, well known to tlie (t) Emperor of Austria v. Day, 3 petitioners to he only the agent of the' D. E. & J. 217, 253. British government, a foreign sover- (k) Hope V. Carnegie, 8 D. M.' & G. eignty, not liable to suit ; that he had 731 ; but see Quarrier v. Colston, 1 Ph. no personal interest whatever in the 151. matter of the suit, and that the British (m) Ellis V. Grey, 6 Sim. 214. government was the sole party to be (n) Gladstone v. Ottoman Bank, 1 affected by it, the plea was overruled H. & M. 505. in demurrer. Sharp's Rifle Manf 'g Co. (o) Gladstone u. Musurus Bey, iJ. 495. v. Rowan, 34 Conn. 329. See Osbomv. See Service v. Casteneda, 2 Coll. 56. Bank of the United States, 9 Wheat. 1 Where the jurisdiction of the court 738; Irvine u. Lowry, 14 Peters, 293; depends upon the party, it is the party Bonnafee v. Williams, 3 Howard, 574; [3] *4 NATURE AND LIMITS [OH. I. to assume jurisdiction {p). If the remedy given by those courts is clear, certain, sufficient, and coextensive with the requisitions of the case, the court of chancery will not enter- tain jurisdiction. If, on the other hand, it falls short of what is> required for the purposes of complete justice, the cou/t will step in and supply the defect (g'). When it is said that the jurisdiction of equity is " concurrent " with that of another court, it merely means that the measure of relief in the other court is the measure of relief in equity, and that the only dif- ference is in the form of proceedings. But when the aid of the court is sought on the ground of the insufficiency of the relief to be got in the other court, the principle of the interference is not that the court has concurrent jurisdiction which would only enable it to do the very thing which the other court might itself, but that the court does not enough (r). 6. In determining whether the remedy given by the courts of ordinary jurisdiction comes up to the requisitions of *4 complete * justice, a court of equity does not exercise a mere arbitrary discretion (s). Complete justice, as understood by a court of equity, though originally founded on the principles of natural justice and reason, has by authority, decision, and statute long grown into a system, and assumed a technical consistency and shape, and must be contradistin- guished from all considerations of discretion, fairness, and equal justice, in the popular sense of the word (Jf). The prin- ciples of equity are as fixed and certain as the principles upon which the courts of common law proceed (u). "There are certain fixed principles," said Lord Redesdale, in Bond v. Hopkins (x), "on which courts of equity act, which are well settled. The cases which occur are various, but they are all decided on fixed principles. Courts of equity have in these respects no more discretionary power than the courts of law. They decide new cases as they arise by the principles on which former cases have been decided, and may thus enlarge and (p) Mit. PI. 145; Att.-Gen. v. Shef- (s) 1 Ha. 138. field Gas. Co., 3 D. M. & G. 304, 320. (t) 1 Coop. t. Cot. 120. See Gardiner (q) Lumley v. Wagner, 1 D. M. & G. v. Edwards, 5 Ves. 592 : Grierson v 616; Hunt v. Hunt, 8 Jur. N. S. 86; Eyre, 9 Ves. 341. Emperor of Austria v. Day, 3 D. E. & (u) Emperor of Austria v Dav 3 D J. 253. E. & J. 217, 238. 254. (r) Castelli ij. Cook, 7 Ha. 89. (x) 1 Soh. & Lef. 429. [4] CH. I.] OP THE JURISDICTION. * 5 illustrate the operation of those principles ; but the principles are as fixed and certain as the principles on which the courts of common law proceed " Qj'). " The discretion of the court," said Lord Eomilly, M.R., in Haywood v. Cope (s), "must be exercised according to fixed and settled rules. The discretion which is to be exercised here is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion in some cases follows the law implicitly ; in others it assists and advances the remedy ; in otliers again it relieves against the abuses or alle- viates the rigor of it ; but in no case does it contradict or over- turn the grounds and principles thereof, as has been sometimes ignorantly imputed to this court. That is a discretionary power which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution intrusted with." It is, however, the duty of the court to adapt its practice and course of proceeding, as far as possible, to the existing state of society, and to apply its jurisdiction to all those new * cases which, from the progress daily * 5 making in the affairs of men, must continually arise, and not, from too strict an adherence to forms and rules, estab- lished under very different circumstances, decline to administer justice and to enforce the rights for which there is no other remedy (a). Tiie jurisdiction of the court must not be nar- rowed to cases in which the jurisdiction has been exercised. The cases in which the jurisdiction has been exercised are merely examples, and must not be looked on as the measure of the jurisdiction (V).^ 7. The mere want of a legal remedy does not create an equi- table right or a remedy in equity (e). A court of equity will, in certain cases, supply a remedy, where, in consequence of (y) See case of Queensberry Leases, test of equity jurisdiction, and the ap- 1 Bligh, 339, 501, per Lord Redesdale. plication of this principle to a particular (z) 25 Beav. 151. case must depend altogether upon the (a) Taylor v. Salmon, 4 M. & C. 134, character of the case, as disclosed in the 141 . pleadings ; " but in order to be plain and (6) Slim V. Croucher, 1 D. F. & J. adequate the remedy at law must be as 518. See also Jenner v. Morris, 3 D. practical and efficient to the ends of jus- !F. & J 55. tice, and its prompt administration, as (c) Kirk V. Bromley Union, 2 Ph. the remedy in equity. Boyce's Ex'rs 648. V. Grundy, 3 Peters, 210; Watson v. 1 " The absence of a plain and ade- Sutherland, 5 Wallace, 74. quate remedy at law affords the only [5] * 6 NATURE AND LIMITS [CH. I. the infirmity of legal process, there is neither a right nor a remedy at law, but only what the law in principle acknowledges to be a wrong (d). But it does not follow that because in any particular instance there is no legal remedy, therefore there must be an equitable one, unless there be an equitable right (e). Neither is a court of equity bound to find an equitable effect for any instrument, merely because the construction put upon it in a court of law leaves it inoperative (/). Circumstances must be shown bringing the case within the principle upon which the peculiar jurisdiction is founded (^). Where the will of the legislature is clearly pronounced with regard to all the circumstances which belong to a case, equity can neither take it up where the laws leave it, nor extend the remedy further than the law allows (A).^ 8. It is an established principle of the court never to aban- don a jurisdiction which it has once assumed. The enlarge- ment of the limits of the jurisdiction of other courts or the creation of a new jurisdiction in other courts, whether by stat- utory enactment, or by an alteration of the rules of pleading, or by the adoption of equitable principles, does not oust * 6 or displace * the jurisdiction of the court in matters originally within its cognizance, and in which relief was originally to be had in equity alone (i). Express statutory enactment can alone take away any part of the original juris- diction of the court (k}. If the case be one in which the court has never assumed jurisdiction, and there is a complete remedy (a) 3 D. p. & J. 55, 254, per Turner, Duke of Beaufort v. Need, 12 CI. & Fin. L. J. 248, 258 ; Wright v. Maidstone, 1 K. & (c) Wake V. Conyers, 1 Ed. 335; J. 709 ; Davies u. Stainbank, 6 D. M. & Serj. Maynard's case, 2 Freem. 2 ; Mac- G. 696 ; Slim v. Croucher, 1 D. F. & J. leod V. Drummond, 14 Ves. 360. 528 ; Stackhouse v. Countess of Jersey, ■ (/) Gladstone v. Birley, 2 Mer. 401. IJ. & H. 721 ; Barry v. Crosskey, 2 J. {g) Gardiner v. Edwards, 5 Ves. 592 ; & H. 1 ; Jenner v. Morris, 3 D. F. & J. Grierson v. Eyre, 9 Ves. 341 ; comp. 45 ; Shepard v. Brown, 4 Giff. 208. Parkhurst v. Lowten, 2 Sw. 209. (k) Slim v. Croucher, 1 D. F. & J. (A) Heard v. Stanford, Ca. t. Talb. 528. 174. 1 Where a statute has made provi- {{) Walmisley v. Child, 1 Ves. 341 ; sion for all the circumstances of a par- Codd V. Wooden, 3 Bro. C. C. 72; At- ticular case, no relief can be afforded in kinson v. Leonard, ib, 218 ; Ex parte equity, though the provisions of the Greenway, 6 Ves. 812 ; Bromley v. Hoi- statute rnay conflict with the notions of land, 7 Ves. 19 ; Jackman v. Mitchell, natural justice and equity entertained 13 Ves. 581 ; Eyre v. Everett, 2 Rusa. by a court of chancery. Glenn v 382; Att.-Gen. v. Aspinall, 2 M. & C. Fowler, 8 Gill & J. 340. 613; Williams v. Eoberts, 8 Ha. 315; [6] CH. I.] OP THE JURISDICTION. 6 at law, the jurisdiction will not be entertained Q'). The circum- stance that a court of law may have assumed jurisdiction in matters not originally within its cognizance, does not alter the principle that a court of equity will not impeach the decision of a court of law after it has solemnly decided the subject of the suit (m). 9. The existence of the jurisdiction is never of itself a rea- son for its exercise. The court is in each case guided by its own discretion, and will not interfere unless it is satisfied that the case is one in which the jurisdiction can be properly and beneficially exercised, and ought in fact to be exercised (n).^ The question for the court to consider where its interposition is sought in cases where a remedy may be had in the courts of ordinary jurisdiction, is whether the remedy there given is suf- ficient and adequate for the purposes of justice (o). It by no means follows that because a statute gives a court of law juris- (l) Wright V. Lord Maidstone, 1 K. & J. 701. (m) Thompson v. Dereham, 1 Ha. 379. (n) Lumley v. Wagner, 1 D. M. & G. 616 ; Slim v. Croucher, 1 D. F. & J. 528. (o) Hunt V. Hunt, 8 Jur. N. S. 86 ; Emperor of Austria v. Day, 3 D. F. & J. 217, 253. 1 The granting, continuing, and dis- solving of temporary Injunctions rests in. the discretion of the court of original jurisdiction ; and therefore an appeal will not lie from an order dissolving such injunction by the court granting it. Van Dewater v. Kelsey, 1 N. Y. 533. The granting of an execution is not ex debito jusiitim for any injury threat- ened or done to the estate or rights of a person ; but the granting of it must al- ways rest in sound discretion governed by the nature of the case. Hine v. Stephens, 33 Conn. 497 and cases cited; Grey v. Ohio and Pennsylvania Rail- road, 1 Grant's Cases, 412; Cobb v. Smith, 16 Wis. 661 ; Jones v. Newark, 3 Stockton, 452 ; Eeddall v. Bryan, 14 Md. 444. And the granting and continuing of injunctions rests mainly on equitable grounds, and Is not exercised for the mere purpose of' protecting legal rights irrespective of the claim of the party to equitable relief. Hilles v. Parrish, 1 Mc- Carter, 380 ; Kneedler v. Lane, 3 Grant's Cases, 523 ; State v. Judge, 16 La. An. 233. As to considerations which will determine the court in granting ah injunction, see Real Del Monte, &c.. Mining Co. v. Pond, &c.. Mining Co., 23 Cal. 82 ; Wason v. Sanborn, 45 N. H. 169 ; Lewis v. Rough, 26 Ind. 398. The court may refuse an injunction if the proceedings are such as to show that a full disclosure of all the facts has not been made by the complainant. Canton Co. V. Northern, &c., R. Co., 21 Md. 383. The necessity that the subject-matter should be capable of being clearly as- certained, is most obvious, in order that the mandate of the court may be cer- tain, and without ambiguity, that what the defendant is commanded to do, or not to do, may be certain and definite. Wason V. Sanborn, 45 N. H. 169. The trivial amount of damage already suffered by the plaintiff is no reason.for refusing a perpetual injunction, where, without it, the adverse use might ripen into a right. Corning v. Troy, &c., Fac- tory, 34 Barb. 485. Where the defendant asserted a per- petual public easement in the lands of the plaintiff, and in assertion of his claim committed such acts upon the land, as in time, if not restrained, might afford a vindication of his claim, it was held, that a court of equity might prop- erly grant an injunction. Carpenter v. Gwynn, 35 Barb. 395. [7] *7 NATURE AND LIMITS [CH. I. diction in certain matters, that therefore this court should decline to exercise the jurisdiction (p). The superior powers which a court of equity possesses, of adapting its decrees to the special circumstances of each particular case, of adjust- * 7 ing cross equities, * of laying down the conduct to be observed by the several parties to the suit, of imposing terms, and generally of doing justice in the most minute detail, makes the interference of the court in matters of complex and intricate litigation so conducive to the interests of justice, that jurisdiction will be entertained in cases where the courts of ordinary jurisdiction are themselves able to give a remedy (^q). 10. A court of equity will in no case allow itself to be made the instrument of injustice. In cases depending on legal titles equity follows the law : where, however, by the interposition of the court to prevent an act rightfully or wrongfully intended, a man has lost a remedy at law, the court will give him a rem- edy equivalent to that from which the interposition of the court has debarred him (r}. 11. The general jurisdiction of the court of chancery has been divided by Lord Redesdale in his treatise on Pleading into two classes. The first class is where the coiirt is called upon to decide the right to property ; the other is where it is called upon to interfere without deciding upon any such right; The first of these classes has been subdivided by him into three sub-classes. 1st. Where the principle of the law gives a right, but the forms of law do not give a remedy, or cannot give the most complete remedy. In such cases the court will interfere and give those remedies which the ordinary courts would give, if their powers were equal to the purpose, or their modes of administering justice would reach the evil, and also to enforce the remedies attempted to be given by those courts where their effect is so defeated (s). 2d. Where the powers of the law are abused and exercised contrary to conscience. 3d. Where the law gives no right, but the principles of complete justice require the interference of the judicial power to prevent the (p) Stewart v. Great Western Eail- Brown v. Newall, 2 M. & C. 558 572 way Co., 11 Jur. N. S. 628. See Shine v. Gough, 1 B. & B 444 (?) Slim V. Croucher, 1 D. F. & J. (s) See Jenner v. Morris, 3 D ip & 524; Barryw. Crosskey, 2J. &H. 1. J. 55. », o-u. j;.® (r) Pulteney v. Warren, 6 Ves. 73 ; [8] CH. I.] OP THE JURISDICTION. *8 recurrence of a wrong. With reference to the second of these classes into which the jurisdiction has been divided, courts of equity administer to the endsof justice : 1st, By removing impediments * to the fair decision of a question in other * 8 courts ; 2dly, By providing for the safety of property in dispute pending litigation ; Sdly^ By preserving property in danger of being dissipated or destroyed by those to whose care it is by law intrusted, or by persons having immediate but partial interests ; 4thly, By restraining the assertion of doubtful rights in a manner productive of irreparable injury ; 5thly, By pre- venting injury to those persons from the doubtful title of others-; 6thly, By putting a bound to vexatious and oppressive litigar tion, and to prevent multiplicity of suits ; 7thly, By preserving testimony and enforcing discovery (jf). This description and division of the jurisdiction has been adopted and approved by Lord Justice Turner, and has been applied by him as the test by which the jurisdiction of the court must be considered as bounded. In a case which could not be brought within any of these subdivisions, he would not entertain jurisdiction, saying that the court cannot extend its jurisdiction under color of carrying out its principles (m). 12. The jurisdiction of the court of chancery over property is not immediate, but is carried into effect by means of personal decrees (a;). The court being, from its original constitution, a court of C(mscience, persons are the objects to whom its decrees and orders are addressed. An immediate jurisdiction over things has been in certain cases conferred by statute ; but with these exceptions, and with that of the jurisdiction by writ of assistance in certain cases («/), the form and character of the original constitution of the jurisdiction has not been changed. Except in the case of infants, the court does not exercise any jurisdiction over persons where no claims or rights to property are concerned. The relation of persons to property is, in all cases, with the single exception of the case of infants, requisite to be shown as a foundation for the interference of the court, persons being the object and property the subject- {t) Mitf. PI. 133. {x) Houlditoh v. Lord Donegal, 8 (m) Pennell v. Eoy, 3 D. M. & G. BUgh, 344. 138. See 3 D. F. & J. 55, 254; per {y) I Atk. 644; 1 Ves. 454; 3Bligh. Turner, L. J. 165, [9] *9 NATURE AND LIMITS [CH. I. matter of the jurisdiction. The court has no jurisdiction, unless the person to whom its orders are addressed is witliin * 9 the reach of the * court or amenable to its jurisdiction. The person must be not only within the reach of thej court as to locality, but he must bear such a character as shall render him personally amenable to the jurisdiction (z). 13. The fact that the orders and decrees of the court operate immediately upon persons has had the effect of giving the court a very extensive jurisdiction instead of presenting an obstacle to its powers, as might perhaps have been expected. As a con- sequence of the rule, the court may exercise jurisdiction quite independently of the locality of the act to be done, provided the person against whom relief is sought is within the reach and amenable to the process of the court. In exercising the jurisdiction, the court does not lay any claim to the exercise of judicial or administrative rights in a foreign country, but pro- ceeds solely on the circumstance of the person to whom the order is addressed being within the reach of the court (a). 14. As a further consequence of the same rule, the court has power, upon a proper case being made out, to restrain a man from applying to Parliament (6), or to the legislature of a foreign country (c). But the jurisdiction will only be exer- cised under very exceptional circumstances (cZ).i The court cannot, however, restrain a man from applying for a grant to a foreign sovereign, nor, after the grant is made, can the court prevent a man from using the grant made by the same sov- ereign authority. The fact that the grant so made may be inconsistent with a grant previously made by the same sover- eign authority does not give a man any equity to apply to the court (e). i: 5 H. L. 436. ter and Leeds Railway Co., 1 Ra. Ca. Houlditoli V. Lord Donegal, 8 436. Bligh, 341; Lord Portarlington k. Soul- (c) Bell u. Sierra Nevada Co. ID.F by, 3 M. & K. 108 ; Carron Iron Co. v. & J. 183. Maclaren, 5 H. L. 436 ; but see Norris {d) See also Lancaster and Carlisle V. Chambres, 7 Jur. N. S. 689 ; see also Railway Co. v. North Westeru Railway Cood V. Good, 33 Beav. 314. Co., 2 K. & J. 293< (6) Ware v. Grand Junction Railway (e) Gladstone v. Ottoman Bank 1 H Co., 2R. &M.483; Heathcoatea. North & M. 506. Staffordshire Railway Co., 2 Mac. & G. l It is held in Story v. Jersey City 109 ; Stockton and Hartlepool Railway and Bergen Point Plank Road Co 1 C Co. V. Leeds and Thirsk Railway Co., 2 E. Green, 13, that the court has no Ph. 666 ; comp. Att.-Gen. v. Manches- power to restrain a citizen from peti- [10] CH. I.] OP THE JURISDICTION. * 10 15. The relief afforded by courts of equity is of a twofold * character. It is either remedial or preventive. * 10 The court either grants positive and affirmative relief, or restrains the doing of acts which are against equity and donseience. In giving remedial relief, the court proceeds usually by decree. Preventive relief is administered by in- junction. Relief by decree and relief by injunction are sup- plementary to each other in meeting and completing the requisitions of justice. Whenever a man appears entitled to equitable relief, if it consists in restraining the commission or the continuance of some act of the defendant, a court of equity administers that relief by injunction (/). tioning the legislature upon any subject (/) See Eden on Inj. 2. in which he is interested. [11] *il INJUNCTIONS IN GENERAL. [CH. II. *11 * CHAPTER II. INJUNCTIONS IN GENERAL. 1. An injunction defined. 2. Distinction between interlocutory and perpetual injunctions. 1. An injunction is a writ issuing by order and under seal of a court of equity. A writ of injunction may be described to be a judicial process whereby a party is required to do a particular thing or to refrain from doing a particular thing according to the exigency of the writ. The process, however, is rather preventive than restorative, though it is by no means confined to the former object. When commanding an act to be done, it issues after decree, and is in the nature of an execution to enforce the same ; as, for instance, it may contain a direction to the party defendant to yield up or to quit or continue the possession of the land or other property which constitutes the subject-matter of the decree in favor of the other party (a). 2. Injunctions are either interlocutory or perpetual. Inter- locutory injunctions are such as are to continue until the hearing of the cause upon the merits, or until discovery, if that be the object of the application, or generally until further order. Perpetual injunctions are such as form part of the decree made at the hearing upon the merits, whereby the defendant is perpetually inhibited from the assertion of a right or perpetually restrained from the commission of an act which would be contrary to equity and good conscience (6). The perpetual injunction is in effect a decree, and concludes a right. The interlocutory injunction is merely provisional in its nature, and does not conclude a right. The effect and object * 12 of the interlocutory injunction is merely to preserve the property in dispute in statu quo until the hearing or further order. In interfering by interlocutory injunction, the (a) Gilb. For. Rom., ch. 11, pp. 194, Inj., ch. 1, pp. 1, 2 ; Story Eq. Jur. 861 195; Stribloy w. Hawke, 3 Atk. 275; 862. ^'' ' ' J' M >" ooi, Huguenin u. Basley, 15 Ves. 180 ; Gray (i) Gilb. For. Rom. 194 195 V. Stanford, 8 Ir. Eq. 678; Eden on [12] CH. II.] INJUNCTIONS IN GENERAL. *12 court does not in general profess to anticipate the determi- nation of the right, but merely gives it as its opinion that there is a substantial question to be tried, and that till the question is ripe for trial, a case has been made out for the preservation of the property in the mean time in statu quo. A man who comes to the court for an interlocutory injunction is not required to make out a case which will entitle him at all events to relief at the hearing. It is enough if he can show that he has a fair question to raise as to the existence of the right which he alleges, and can satisfy the court that the prop- erty should be preserved in its present actual condition, until such question can be disposed of (c).^ (c) Glascott V. Lang, a M. & C. 451, 455; Hilton v. Lord Granrille, Cr. & Ph. 283, 292 ; Great Western Railway Co. V. Birmingham and Oxford Junc- tion Railway Co., 2 Ph. 597, 603 ; Shrewsbury and Chester Railway Co. V. Shrewsbury and Birmingham Rail- way Co., 1 Sim. N. S. 410, 426 ; Dyke V. Taylor, 3 D. F. & J. 467 ; Walker v. Jones, 1 L. R. P. C. 50, 61. 1 " Except to stay waste, and prevent some irreparable injury, the writ of in- junction is only granted as ancillary, or in aid of some primary equity, which the plaintiff seeks, by his bill, to en- force." Scofield sw. Bokkelen, 5 Jones Eq. 342. An unlawful act will not be enjoined simply because unlawful. It must cause irreparable injury, for which there is no redress at law. Babcock V. New Jersey Stock Yard Co., 5 C. B. Green, 298. And irreparable injury is such as is not susceptible of compensa- tion in damages. Richard's Appeal, 57 Penn. St. 105. [13] *13 INJUNCTIONS TO EESTEAIN £CH. III. t. *18 * CHAPTER III. INJUNCTIONS TO RESTRAIN PROCEEDINGS AT LAW. 1. General principles upon which courts of equity proceed to restrain actions at law. 2. The injunction is addressed to the party and not to the court. 3. General rule is not to interfere with proceedings at law more than is necessary for purposes of justice. 4. Injunction will not be granted merely because action at law ought not to have been brought ; nor because defendant cannot make out his case at law. 5. Bill must show an equitable case. Requisites of. 6. Bill must be supported by affidavits. 7. Injunction may be obtained ex parte, or upon notice. 8. Conduct of party who seeks the aid of the court must be fair and honest. 9. Effect of delay in applying for injunction. 10. Terms on which injunction is granted. 11. Cases where court will not interfere until after verdict or judgment. 12. Practice in case of payment of moneys into court. 13. Injunction may be granted at any stage of action at law. 14. Eight to grant injunction after judgment now fully established. 15. But some special equitable grounds for the interference of the court must be' shown. 16. General principles upon which relief will be given after verdict or judgment, as stated by Chief Justice Marshall. 17. Practice in cases of injunction against proceedings in ejectment. 18. Equitable plea under Common Law Procedure Act, 1854. 19. Injunctions to restrain proceedings at law until discovery. 20. Statute provisions in regard to such injunctions. 21. What facts affidavits must show. 22. The nature of the interrogatories. 23. Practice in regard to bills for discovery. 24 & 25. Practice as to costs. 1. A DEFENDANT to ail action at law has often some equitable defence which a court of law cannot take cognizance of either by reason of want of jurisdiction, or from the infirmity of legal process. As it would be against conscience and good faith that the plaintiff at law should use the advantage of which he is thus possessed at law, a court of equity will restrain by injunc- tion an action at law, where the right sought to be enforced by the action is subservient to an equitable claim which the defendant at law cannot set up there. The court interferes on the principle of preventing a legal right from being enforced in an inequitable manner, or for an inequitable purposed The I To prevent an unfair use being just rights. Smithurst v. Edmunds, 1 made of the process of a court of law, McCarter, 408. in order to deprive another party of his [14] CH. III.] PEOCEEDINGS AT LAW. * 14 right to relief by injunction extends to all cases where actions at law have been commenced before the ordinary tribunals in respect of disputes which involve an equitable element. The ground for imposing the restraint is, that as the ordinary tri- bunals cannot adjudicate an equity, a part only of the dispute, and not the whole dispute, would be decided there. The court, therefore, interferes in order that the real question, and the whole matter in dispute between the parties may be deter- mined (a). It is not, however, the course of the court to with- draw the consideration and decision of a case from a court of law, unless it can be shown to the satisfaction of the court that the case involves an equitable element. A man has no right to come to the court for relief, if he has a good defence at law and * cannot show a good equitable case (6). *14 Tlie mere assertion of an equity is not sufficient. A case must be shown sufficient to satisfy the court that the question really involves an equitable element, and is a fit subject for in- vestigation in a court of equity (c). The court must, before it interferes, be satisfied that there is an equity calling for its inter- ference as clear as the legal right which it is called upon to con- trol (c?). It is not, however, necessary that a case shouldbe made out which would entitle the plaintiff to relief, at all events at the hearing. It is enough if the court finds upon the pleadings and* the evidence a case which makes the transaction a proper subject for investigation in a court of equity (e). The question for the court upon the interlocutory application is not the final merits of the case. When the case comes on to be heard, the final merits may be very different. But this consideration will not prevent the court from breaking in upon the proceedings at law, where from the merits to be gathered from the plead- ings and conflicting affidavits there appears on the whole a case (a) Jones v. Hughes, 1 Ha. 389 ; Mc- (c) Meux v. Smith, 7 Jur. 821 ; Har- Padden v. Jenkins, ib. 458 ; Thompson dinge v. Webster, 1 Dr. & Sm. 101 ; V. Dereham, ib. 379 ; Dawson v. Lawes, Dyke v. Taylor, 3 D. F. & J. 473. Kay, 281 ; Magnay v. Mines Royal Co., (rf) Osborne v. Bales, 2 Moo. P. C. N. 3 Drew. 130; Buckland w. Gibbins, 32 S. 125. L. J. Ch. 391. See Duncombe v. Green- (e) Glascott v. Lang, 2 M. & C. 451, acre, 2 D. P. & J. 509 ; Causton v. City 455 ; Powell v. Lloyd, 1 Y. & J. 427 ; Offices Co., 14 W. E. 977. Meux v. Smith, 7 Jur. 821. See Cotes- (6) Hardinge v. Webster, 1 Dr. & worth b. Stephens, 4 Ha. 185 ; Williams Sm. 101 ; Traill v. Baring, 33 L. J. Ch. v. Roberts, 8 Ha. 315. 521. [15] 15 INJUNCTIONS TO RESTRAIN [CH. III. proper for the investigation of the court, and a fair question to be reserved till the hearing (/). The court deals with the injunction upon the evidence before it. If the court sees nothing to deprive the plaintiff of the equity to which the cir- cumstances entitle him, it is bound to grant the injunction. If there be any new facts, the defendant may avail himself of them at the hearing, or on the motion to dissolve (^). 2. The writ of injunction by which proceedings at law are restrained, is not in the nature of a prohibition. In issuing injunctions, courts of equity claim no supremacy over the ordinary tribunals. An injunction is addressed only to the individual, and is not directed to the court.^ Courts of equity in issuing the writ, not only do not deny, but in fact * 15 admit, the * jurisdiction of the ordinary tribunals.^ The (/) Magnay u. Mines Royal Co., 3 Drew, 130. ig] Espey v. Lake, 10 Ha. 260. • Where a citizen of one state has attached in another state, personal property of a debtor, who resides in the first state, and who is insolvent under the laws of such state, it is the duty of the court of that state, in the exercise of a sound judicial discretion, to enjoin the creditor from proceeding with his suit, if thereby the property will come to the hands of the assignees in insol- vency. Dehon v. Foster, 7 Allen, 5T. A state court has no power to enjoin proceedings in a court of the United States. JCendall v. Winsor, 6 K. 1. 453. But where parties were enjoined by the state court from prosecuting certain claims, and while the injunction was in force filed a bill in the United States court to foreclose a mortgage given to secure these claims, it was held that the state court had the right to punish them for proceeding in the United States court in violation of the injunction, but no right to order a dismissal of the pro- ceedings. Hines v. Rawson, 40 Ga. 356. And in Williams v. Ayrault, 31 Barb. 364, it is held, that an action cannot be maintained in the courts of one state to enjoin and restrain the prosecution of an action commenced and pending in a court of a sister state ; and this is said to be the settled rule in this country. But the contrary is held in Vermont. Bank of Bellows Falls v. R. & B. Railroad, 28 Vt. 470. See Story's Eq. Jur. §§ 899 and 900. [16] 2 One court will not restrain by in- junction the proceedings previously in- stituted in another of co-ordinate chan- cery jurisdiction. The proper course is to apply to the court by petition for an order in the original suit. Platto v. Deuster, 22 Wis. 482. "With the proceedings and deter- minations of inferior boards or tribunals of special jurisdiction, courts of equity will not interfere, unless it should be- come necessary to prevent a multi- plicity of suits or irreparable injury, or unless the proceeding souglrt to be annulled or corrrected is valid upon its face, and the alleged invalidity consists in matters to be established by extrin- sic evidence. In other cases the review and correction of the proceedings must be obtained by the writ of certiorari." Therefore, where a bill was filed to en- join the etiforcement of certain judg- ments rendered against the complainant by the mayor of St. Louis for the amount of alleged benefit to his prop- erty from the opening of a street in that city, and setting forth, as grounds of relief, want of authority in the mayor, and various defects and irregu- larities in the proceedings, a demurrer on the ground that a court of equity had no jurisdiction of the matter, and that the complainant had a plain, ade- quate, and complete remedy at law, was sustained. Ewing v. City of St. Louis, 5 Wallace, 413. Crandall v. Bacon, 20 Wis. 639. Nor will a court of equity grant an injunc- tion against a non-resident trustee of CH. m.] PROCEEDINGS AT LAW. *15 injunction merely controls the party personally to whom it is addressed in the use he is attempting to make of the judgments of those tribunals, where the legal right which he is asserting at law is subservient to an equitable interest of which a court of law cannot take cognizance. The real object of the injunction is to prevent the judgment of the courts of law from being made an instrument of injustice (h). 3. It is the rule of the court, in the exercise of its jurisdic- tion to restrain by injunction actions at law, not to break in upon the proceedings at law more than is necessary for the purposes of justice (J), or to interfere, except it is satisfied that the exercise of the jurisdiction will be beneficial (It). If the defendant at law has a good defence at law, and the remedy at law is as perfect and complete as the remedy in equity, the court will not restrain the action Q)} Where, for instance, the railway mortgage bonds, the purpose of which is to transfer a Utigation pend- ing in the courts of the State where such trustee resides into another forum for decision. Bellows Tails Bank v. Rutland & Bur. R.R. 28 Vt. 470. And where relief is asked on the grounds of accident or mistake alone, there must he clear, explicit, and con- clusive proof of the mistake to justify the interference of a court of equity. Katz V. Moore, 13 Md. 566. In this last case the court refused to restrain execution of a judgment at law upon the ground that the defendant liad been discharged under the insolvent laws prior to. its rendition, and that it was not entered subject to such dis- charge. The court say that, though the complainant may have been re- leased from legal liability to pay his debts on which the judgment was ren- dered, yet his moral obligation is as strong as ever, and would be a sufficient consideration for a new promise to pay them, and fully sustained the judg- ment. "Where an attorney of the court in reg- ular practice and perfectly responsible appears, and answers for the defendant in a suit at law, though without au- thority, execution of the judgment ob- tained against such defendant will not be enjoined in equity. Bunton v. Xiy- ford, 37 N. H. 512 ; Cyphert v. McClune, 22 Penn. 195; Jackson v. Stewart, 6 Johns. 84 ; Denton v. Noyes, 6 ih. 300. (h) Hill V. Turner, 1 Atk. 516 ; Har- rison V. Gurney, 2 J. & W. 563 ; Lord Portarlington v. Soulby, 3 M. & K. 104 ; Bunbury v. Bunbury, 3 Jur. 644 ; Heathcoate v. North Staffordshire Rail- way Co., 2 Mac. & G. 109; Hunt v. Hunt, 8 Jur. N. S. 88. (i) Bond V. Hopkins, 1 Sch. & Lef. 431. (h) Lumley v. Wagner, 1 D. M. & G. 616 ; Slim v. Croucher, 1 D. F. & J. 528. (I) Thrale o. Ross, 3 Bro. C. C. 56 ; Corporation of Arundel v. Holmes, 4 Beav. 325; Norris v. Day, 4 Y. & C. 475 ; Fox v. Hill, 2 D. & J. 356 ; Thiede- mann v. Goldschmidt, 1 D. F. & J. 4 ; Hardinge v. Webster, 1 Dr. & Sm. 106. See Graves v. Houlditch, 2 Pri. 147. 1 But not unless the remedy at law is adequate. Bissell v. Beckwith, 33 Conn. 357. And the neglect in such case of the defendant to object to the jurisdiction of the court of equity will not entitle the complainant to a prelim- inary injunction to restrain the proceed- ing at.law; but when a final decree shall be made, the court by injunction may restrain any proceedings at law inconsistent with the rights of the par- ties as established by such decree. N. Y. Dry Dock Co. v. The Amer. Life Ins. and Trust Co., &c., 11 Paige, 384. And the groimd that an award was obtained by the fraud and corruption of the arbitrators, or that the matters upon which the award was made were not [17] 16 INJUNCTIONS TO RESTRAIN [CH. III. illegality of an instrument, if it be illegal, is apparent on the face of the instrument, so that no lapse of time, or change of circumstances, can weaken the means of defence, whenever an action shall be brought upon it, the defendant will be left to that means of defence, and has no occasion to come to equity for relief (m). But if the illegality of an instrument is not apparent on the face of an instrument, but depends on evidence dehors the instrument, so that the means of defence is likely to fail from lapse of time, or change of circumstances (w), * 16 or if the court is * satisfied that the exercise of the jurisdiction would, under the circumstances of the case, be beneficial and conducive to the interests of justice, it will interface even in cases where there may be a good defence at law, and will order the instrument to be delivered up and cancelled (o). If an equitable case be made by the bill, it is not the course of the court in a matter originally belonging to it, to allow an action at law to proceed, unless it is satisfied that a court of law can do justice between the parties (p). submitted, are defences to a suit at law upon such award, and so an injunction will not be granted against a suit on such award. Snediker v. Pearson, 2 Barb. Ch. 107. And where the plaintiff had recov- ered judgment in an action of eject ment for a forfeiture by reason of non- payment of rent, the defendant was not allowed to show, in a suit in equity, brought to restrain the enforcement of the judgment, that the rent ought, under the stipulations of the lease, to have been reduced in amount, as the plaintiff could not have recovered without proving to the satisfaction of the jury that the exact amount de- manded was due. Any failure in this respect would have been fatal to the action. Then was the time for the de- fendant to assert and prove such claim. Sheets v. Selden, 7 Wallace, 416. Chancellor Kent says : " It is a set- tled principle, that a party will not be aided after a trial at law, unless he can impeach the justice of the verdict or report, by facts, or on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident, or the act of the opposite party unmixed with negligence or fault on his part." Duncan v. Lyon, 3 Johns. Ch. 356 ; Floyd v. Jayne, 6 Johns. Ch. 479. And not in equity in such cases, probably, if the court at law had power to grant a new trial of the cause. See Hubbard v. Eastman, 47 N. H. 507, for an extended discussion of this subject. (m) Gray v. Mathias, 6 Ves. 286; Simpson v. Lord Howden, 3 M. & C. 97; Fenn v. Craig, 3 Y. & C. 216; Jones V. Lane, ih. 281, 294 ; Williams v. Flight, 5 Beav. 41 ; Smyth v. Griffin, 14 L. J. Ch. 28 ; Heath v. Heath, 9 Ir. Eq. 635 ; Anderson v. Dowluig, 11 Ir. Eq. 590. , (n) Bromley v. Holland, 5 Ves. 617, 7 Ves. 19; Hay ward v. Dimsdale, 17 Ves. Ill ; Grover v. Hugell, 3 Buss. 428 ; Lord Milltown v. Stuart, 3 M. & C. 18 ; Feun v. Crai^, 3 Y. & C. 216 ; Jones V. Lane, ib. 281, 294; Sismey ti. Eley, 17 Sim. 1. See Thiedemann v. Goldschmidt, 1 D. F. & J. 4 ; Cooper v. Joel, ih. 242. (o) Jervis v. White, 7 Ves. 415; Hodgson V. Murray, 2 Sim. 517, 3 Sim. 283. See Williams v. Eoberts, 8 Ha. 315; Cooper «. Joel, 27 Beav. 313, 317 ; Stackhouse v. Countess of Jersey. 1 J. &H. 731. ' (p) Meux V. Smith, 7 Jur. 825. See Thrale v. Ross, 3 Bro. C. C. 56. [18] CH. in.] PROCEEDINGS AT LAW. 17 The court may in such a case interfere by way of injunction, if necessary, and also by way of ordering the instrument to be delivered up (^q). Whether or not it will interfere depends on the discretion of the court, according to the circumstances of the case. If the court is satisfied that the case is one which may be more satisfactorily tried at law, the action will be allowed to proceed (r).^ 4. The court will not restrain by injunction an action at law, whenever an action at law ought not to be brought (s), nor will an injunction lie merely because the defendant at law cannot make out his case at law (i) : nor is the fact that a court of law is miscarrying, or an Act of Parliament being abused, a ground for the interference of the court to restrain an action at law (w).^ 6. The allegations in the bill must show an equitable case, and must be sufficient to sustain the injunction (a;). The bill must allege the substance of the ground of relief (2/), and must show * grounds on which the action at law * 17 (?) Traill v. Baring, 33 L. J. Ch. 521, 526. See Houlditch v. Nias, 8 Prl. 689 ; Ferniliough «. Leader, 15 L. J. Ch. 458 ; Allen v. Davis, 20 L. J. Ch. 44; infra. (r) Clarke v. Manning, 7 Beav. 162. See Mackintosh v. Wyatt, 3 Ha. 562. (s) Cooper v. Joel, 1 D. T. & J. 240. (() Mangles v. Grand Dock Colliery Co., 10 Sim. 519. («) Lord Portsmouth v. Partridge, 8 W. R. 658. [x) Cresy v. Beaven, 13 Sim. 99. See Glennie v. Imri, 3 Y. & C. 444. (.1/) Nokes V. Fish, 3 Drew. 735. 1 Where by mistake, accident, or fraud, judgment has been entered for an amount or in terms not intended, equity will, on clear proof, give relief. Katz V. Moore, '13 Md. 566. See also Blakesley v. Johnson, 13 Wis. 530 ; Tom- kins V. Tomkins, 3 Stocfct. 512; Win- gate V. Haywood, 40 N. H. 437. But it must appear clearly and un- equivocally that the judgment at law was wrongfully and fraudulently ob- tained, without any negligence or fault of the party impeaching the judgment Hungerford v. Sigerson, 20 How. U. S 156; Johnson v. Lyon, 14 Iowa, 431 Wells V. Wall, 1 Oregon, 295 ; ib. 344 Lansing v. Eddy, 1 Johns. Ch. 49 Penny v. Morton, 4 Johns. Ch. 566 Bartholomew v. Yaw, 9 Paige, 165 ; Thompson v. Beny, 17 Johns. 436. Irregularity in the proceedings by which judgment was obtained, such as no service or defect of jurisdiction in the court, is not enough to warrant an injunction. It must appear that sub- stantial injustice will be done if the judgment is enforced. Coon v. Jones, 10 Iowa, 131 j Ableman v. Both, 12 Wis. 81 ; Shricker v. Field, 9 Iowa, 366 ; Shedd v. Bank of Brattleboro', 32 Vt. 709 ; Gregory v. Ford, 14 Cal. 138. Contra, Bellu. Williams, 1 Head, Tenn. 229. But a person in the quiet possession of real estate as owner, may obtain an injunction to restrain others from dispos- sessing him by means of process grow- ing out of litigation to which he was not a party. Goodnough v. Sheppard, 28 111. 81. When an attorney brings a suit with- out any authority from the plaintiff, and the defendant obtains a judgment for costs, a court of equity will restrain the enforcing such judgment by a per- petual injunction, if it be shown that the attorney is poor and unable to re- spond.^ Smyth V. Balch, 40 N. H. 363. Equity will enjoin an inequitable use of a good judgment. Garlick v. Mc- Arthur, 6 Wis. 450. [19] *18 INJUNCTIONS TO RESTRAIN [CH. HI. may be sustained, otherwise it is demurrable (a).^ The bill generally alleges that the plaintiff has no defence at law (a) ; but the allegation is not necessary if the bill show on its face an equitable case. Demurrer will lie, if the capacity of the plaintiff to defend the action successfully at law is stated in the bill (5). 6. The allegations in the bill must be supported by affida- vits, so as to show on the face of the evidence that they are well founded (c). 7. An injunction to restrain proceedings at law may be ob- tained ex parte, or upon notice (c?). If the application is ex parte, great caution is. necessary in the exercise of the juris- diction (e). 8. The jurisdiction of the court to restrain by injunction proceedings at law being founded on equitable principles, the general conduct of a man who seeks the aid of the court, must be fair and equitable in respect of the transaction in question. It is a rule of equity, that a man who seeks the assistance of the court must do justice as to the matters in respect of which that assistance is asked (/). He must be able to show that his own acts and dealings in the matter have been fair and con- sistent with equity (g'). A man who has put himself in the' wrong, or who has by his own conduct brought about the state of things of which he complains, cannot invoke the aid of the court (Ji). A man may by acquiescing in the acts * 18 done by another materially * affecting his own interest preclude himself from afterwards exercising his legal right to the property in relation to which such acquiescence (2;) Balls V. Margrave, 3 Beav. 284 ; on Deer. 877. See as to ex parte ap- Derbyshire, Staifordsliire, and War- plications, infra. wicksliire Railway Co. v. Serrell, 2 De if) Gibson v. Goldsmid, 5 D. M. & G. & S. 353. G. 757, 765. (a) Brown v. Newall, 2 M. & C. 558, (g) Bateman v. Ramsay, San. & So. 576. 459; Batty v. Chester, 5 Beav. 103; (6) Davies v. Salisbury, 14 L. J. Ch. Williams v. Roberts, 8 Ha. 315. See 153. Ewing v. Osbaldiston, 2 M. & C. 53 ; (c) See Magnay w. Mines Royal Co., Reynell v. Sprye, 1 D. M. & G. 679; 3 Drew. 130, 133 ; see further, infra. Rees v. Fernie, 13 W. R. 6. {d) Jones v. Bassett, 2 Russ. 405 ; (A) Lloyd v. London, Chatham, and Brown v. Newall, 2 M. & C. 558 ; Ma- Dover Railway, 2 D. J. & S. 568 • Dut- claren v. Stainton, 16 Beav. 279 ; Fisher ton v. Fumess, 35 L. J. Ch. 463. ' V. Baldwin, 22 L. J. Ch. 966. 1 Minturn v. Farmers' Loan and (e) Jarmuth v. Simmons, cited Set. Trust Company, 3 Comstock 498 ■ [20] Perrine v. Striker, 7 Paige, 598. CH. III.] PROCEEDINGS AT LAW. * 19 has occurred (t). If in his dealings either with the person against whom he seeks relief, or with tliird parties, he has acted in an unfair or ineqviitable manner, he cannot have relief (fc). 9. Delay in making the application is not, as a general rule, material, but if the application is not made until near the period of the trial, the court may refuse to interfere, unless the delay is satisfactorily accounted for (I). Delay may,, how- ever, affect materially the question of costs. A man who allows the proceedings at law to run on, will be ordered, although successful in restraining the action, to pay the costs subsequent to the declaration (m). 10. If the court shall be of opinion that there is on the whole a fair question to be reserved for the hearing, and that the con- duct of the party who makes the application is free from any taint of fraud or illegality, it has next to determine whether he shall be put upon terms as a condition of its interposition in his favor, and if so, upon what terms an injunction shall be granted (n). The terms on which an injunction is granted are in each case a question for the discretion of the court, but the general principle upon which the court proceeds is to put the party applying upon such terms as will enable the court to do justice to the party restrained in the event of his failing to make out his case at the hearing (o). If the question between the parties depends partly on a legal title,* and * 19 partly on an equity, which will only arise in the event of that title being decided in one way, and the circumstances are such that the party applying may admit the legal right of the other party, the action will be restrained only upon the terms of his giving judgment in the action, such judgment to (i) Gerrard v. O'Eeilly, 3 Dr. & War. dure v. Ripley, 13 Jur. 353 ; South 4X4 ; Gregory v. Wilson, 9 Ha. 683 ; Eastern Railway v. Brogden, 3 Mae. & Whitehead v. Bennett, 9 W. R. 627; G. 22; Holme v. Brown, 9 Ha. App. Burke v. Prior, 15 Ir. Ch. 106. See 29 ; Anderson v. Noble, 1 Drew. 143 ; further as to acquiescence, infra. Lloyd v. Adams, 4 K. & J. 470. (jfc) Nicholson v. Hooper, 4 M. & C. (m) Watson v. Alcock, 4 D. M. & G. 179 ; Pope v. Lord Duncannon, 9 Sim. 242. 179; Edelsten w. Viok, 11 Ha. 86. (n) Taft v. Harrison, 10 Ha. 489; (I) Thorpe v. Hughes, 3 M. & C. 742 ; Magnay v. Mines Royal Co., 3 Drew. Stokes V. Wilson, 12 Sim. 91 ; North 130. Eastern Railway Co. v. Martin, 2 Ph. (o) Sanxter v. Foster, Cr. & Ph. 302. 758; Scotson v. Gaury, 1 Ha. 99; Ma- [21] *20 INJUNCTIONS TO RESTRAIN [CH. III. be dealt with as the court shall direct {p), and undertaking to obey such orders as the court may think proper to make (q). The court may sometimes require tliat judgment should be given without prejudice to any question that may afterwards arise (r). 11. If the circumstances are not such as to enable the party who makes the application to admit the legal right of the other party, the court will allow the action to proceed to verdict or to judgment, and will not interfere until after verdict or judg- ment, as the case may be (s). 12. In cases where the question at issue between the parties has reference to the payment of moneys, the mere giving judg- .ment is not sufficient to secure the fund to the party who may be found entitled to it. The usual course, therefore, in such cases, is to grant the injunction only upon the terms of the payment into court by the plaintiff in equity of the amount for which the action is brought (^), and of all sums of * 20 money which may * become due during the pendency of the suit (w). Reasonable time will be given for the payment of the moneys, according to the greatness of the sum or the distance of the party (a;). Where money has thus been (p) Jones V. Bassett, 2 Euss. 405 ; John v. John, 1 L. T. N. S. 385. See Drummond v. Pigou, 2 M. & K. 168 ; Edwards v. Champion, 1 De G. & S.75; Fennings v. Humphery, 4 Beav. 1 ; Smith v. Earl of Effingham, 11 Beav. Barnard v. Wallis, Cr. & Ph. 85 ; Weeks 82 ; Earl of Shrewsbury v. Trappes, 2 V. Taylor, 3 W. R. 47 ; Chilton v. Camp- D. F. & J. 172. bell, 20 BeaY. 531 ; Waterlow D.Bacon, (() Kensington v. White, 3 Pri, 164; 2 L. B. Eq. 514. Where an injunction Solly v. Moore, 8 Pri. 681 ; Maitiand v. is granted on the terms of allowing an Backhouse, 16 Sim. 58 ; Playfair v. Bir- action to proceed to judgment, such mingham, Bristol, &c.. Railway Co., 9 judgment to be dealt with as the court L. J. Ch. N. S. 253 ; Bentinck v. Wil- shall direct, the court will not allow linck, 2 Ha. 1 ; Cotesworth v. Stevens, such judgment to be used for another 4 Ha. 185 ; Powell v. Thomas, 6 Ha. or diiferent purpose ; Weeks v. Taylor, 805 ; Cook v. Betham, 4 Jur. 957 ; 3 W. R. 47. See ib. as to the meaning, Meux v. Smith, 7 Jur. 821 ; Lord Mill- where the court grants an injunction town v. Stewa:rt, 8 M. & C. 24 ; Armit- in terms of giving judgment in an stead v. Durham, 11 Beav. 561 ; Taft action. v. Harrison, 10 Ha. 489; Chilton v. (5) Hannam w. South London Water- Campbell, 20 Beav. 533; Eisher v. works Co., 2 Mer. 61 ; Attwood v. Bar- Baldwin, 22 L. J. Ch. 966 ; Magnay v. ham, 2 Russ. 186 ; Waterlow v. Bacon, Mines Royal Co., 3 Drew. 180. See as 2 L. R. Eq. 514. to form of order, Taft v. Harrison, 10 (r) Brennan v. Preston, 1 W. R. 115. Ha. 489. (s) Barnard v. WaUis, Cr. & Ph. 85 ; (ti) Pyke v. Northwood, 1 Beav. 152 ; Playfair v. Birmingham, Bristol, &c., Fennings v. Humphery, 4 Beav. 1 ; Railway Co., 9 L. J. Ch. N. S. 253 ; Magnay v. Mines Royal Co., 3 Drew. Mott V. Blackwall Railway Co., 2 Ph. 160. 632 ; Mackintosh v. Wyatt, 3 Ha. 562 ; (x) Eden on Inj. 113. [22] CH. III.] PRCiCEEDINGS AT LAW. * 21 once paid in, the court will use great caution in parting with it («/). The moneys will not be paid out to defendant before a decree in the suit (z). If the injunction is dissolved, the moneys will be retained in court, until the legal right has been ascertained (a) . The moneys paid in are only a security, and not a payment. If it turns out that less is due to the defend- ant than the amount paid in, the balance will be restored to the plaintiff (&). If the legal right is denied, payment into court will not be ordered until the cause shall be in a state in which the court can come to a conclusion as to the rights of parties (c) . If the equitable case presented by the bill is such that the court is satisfied, it must be sustained at the hearing, or if there is no danger of the money being lost in the mean time, or if no case has been made out which makes it the duty of the court to take care that if the injunction turns out to be not well founded the defendant in equity should not be injured, payment into court will not be ordered (c?). 13. An injunction is not confined to any point of the pro- ceedings at law. It may, upon a proper case being made out, be granted * at any stage of the action. Thus, an * 21 injunction may be granted to stay trial (e) ; or, after verdict, to stay judgment (/) ; or, after judgment, to stay execution or proceedings under an execution- (^), and pending an appeal (A) ; or, if execution has been efiected, to stay the moneys in the hands of the sheriff (i) ; or, if part only of the (y) Eden on Inj, 116. (/) Turner v. Wright, 1 J. & W. (z) Marsack v. Farlow, Jac. 572. 290 ; Jones v. Hughes, 1 Ha. 383. (a) Furnival v. Bogle, 4 Buss. 142. (g) Codd v. Wooden, 3 Bro. C. C. 72 ; See Brown v. Newall, 2 M. & C. 558. Lady Arundell v, Phipps, 10 Ves. 144 ; (6) Broughton v. Pitohford, 6 Madd. Eowe v. Wood, cited 2 Sw. 234 ; Hawk- 295. shaw v. Parkins, ib. 539 ; Jones v. Bas- ic) Lord Milltown v, Stewart, 3 M. sett, 2 Kuse. 405 ; .Newland o. Painter, & C. 24. See Bank of Turkey v. Otto- 4 M. & C. 408 ; Algar v. Murrell, 6 Jur. man Bank, 2 L. R. Eq. 366. 775 ; Espey v. Lake, 10 Ha. 260 ; Fisher (d) Parnell v. Nesbitt, 2 Pri. 150; u. Baldwin,'22 L. J. Ch. 966. See Wil- Goddard v. Carlisle, 9 Pri. 169 ; Mait- liams v. Roberts, 8 Ha. 315. land V. Backhouse, 17 L. J. Ch. 121 ; (h) Earl of Shrewsbury v. Trappes, Espey V. Lake, 10 Ha. 266 ; Smith v. 2 D. F. & J. 172. Eeese River Co., 2 L. R. Eq. 264. See (i) Whittingham a. Burgoyne,_ 3 Allan V. Inman, 7 Jur. 433 ; Bentinck Aust. 900 ; Hawkshaw v. Parkins^ 2 V. Willinck, 2 Ha. 1; Playfair v. Bir- Sw. 539; Franklyn u. Thomas, 3 Mer. mingham, Bristol, &e.. Railway Co., 9 234 ; Farquharson u. Pitcher, 2 Russ. L. J. Ch. N. S. 253. 81. (e) M'Fadden v. Jenkins, 1 Ha, 458, 1 Ph. 157. [23] *22 INJUNCTIONS TO RESTRAIN [CH. III. judgment has been levied by fi. fa., to restrain the suing of another Jl. fa. or a ca. sa., according to the exigency of the particular case (k) ; or to restrain process in outlawry (Z) ; or to stay the issuing of a writ of possession after verdict in ejectment (m) ; or to stay the delivery up of possession after a writ of possession has been issued («).^ 14. The right to grant an injunction after judgment was at one time the subject of a violent contest between the courts of common law and courts of equity. It was alleged by the common-law judges that after verdict there was no power in chancery to enjoin against execution ; and it was said that, if after judgment the chancellor granted an injunction and com- mitted the plaintiff to the Fleet, the Court of King's Bench would discharge him by habeas corpus. Tlie jurisdiction seems to have been assumed about the beginning of the reign of King Edward the Fourth, and was continued during the reign of King Henry the Eighth. In the reign of Henry the Eighth the assertion of this jurisdiction was one of the articles of im- peachment against Cardinal Wolsey. The same opposi- * 22 tion was continued * against Wolsey's successor. Sir Tliomas More. In the reign of King James the First, under the chancellorship of Lord Ellesmere, a vehement dis- cussion took place, in which Lord Coke came forward as the chief opponent of the jurisdiction. The case was referred to five of the most eminent lawyers of the time, who made an elaborate report in favor of the jurisdiction claimed. The King confirmed this decision, and the jurisdiction was fully estab- lished (o). (k) 3 Wood. Lect. 406, 407, 1 Madd. the plaintiff in equity believes the au- Ch. Pr. 183. See Hawkshaw v. Par- swer will afford discovery material to kins, 2 Sw. 539 ; Williams v. Eoberts, his defence at law, that an injunction 8 Ha. 315. to stay the trial ought to be granted. [I) Drummond v. Pigou, 2 M. & K. Williams v. Sadler, 4 Jones Eq. 378. 168. Where property attached upon a writ (m) Buckland v. Gibbins, 32 L. J. of mesne process was bailed for safe- Ch. 391. See 1 H. & C. 736. keeping by the sheriff, and the debt (n) Story Eq. Jur. 886, infra. subsequently paid by the debtor, but (o) 1 Ch. Eep. App. Crowley's case, not until after final judgment had been 2Sw. 22, n., 1 Wood. Lect. 398; 3 i6. recovered against the bailee of the 156; 1 Spence's Eq. Jur. p. 674. property attached, and the creditors 1 It is the ordinary course to restrain nevertheless attempted to enforce the the execution, but allow the plaintiff to judgment against the bailee, it was held proceed to judgment at law ; and it is to be substantially the same as if the only upon an averment in the bill, that judgment against the bailee had been [24] CH. III.] PROCEEDINGS AT LAW. * 23 15. Relief will not be given in equity after judgment, unless some special equitable grounds for the interference of the court can Be shown (^). A defence which has been fully and fairly tried at law cannot be set up as a ground for relief in equity after judgment (5), even although it may be the opinion of the court that the defence ought to have been sustained at letw (r). Nor can a man who, having a good defence at law, neglects to avail himself of it there (s), or who suffers judgment to go against him by neglect (f), come to a cburt of equity for relief. The mere fact of the discovery of fresh evidence since the ver- dict is not a sufficient ground for the interference of the court (m). Still less can an equity arise if the evidence might have been procured before the trial with ordinary care and diligence, or if the grievance complained of has been caused by a mistake in pleading, or the conduct of a cause, or by surprise (x). 16. * But if an equitable case can be made out, relief * 23 will be given after verdict or judgment («/). The gen- eral principle upon which relief will be given has been thus stated by Chief Justice Marshall in Marine Insurance Company y. Hodgson (g) . " It may be stated as a general principle, paid; that, being merely collateral to the (t) Williams v. Lee, 3 Atk. 223 ; Lan- principal debt, must fall with it, and its sing v. Edge, 1 Johns. Ch. (Amer.) 49. collection was accordingly enjoined. Comp. Griffith v. Edwards, 2 Jur. N. S. Paddock v. Palmer, 19 Vt. 581. See 584. also, to same point, Keighler v. Savage (u) Sewell v. Ereestun, 1 Ch. Ca. 65 ; Manufac. Co., 12 Md. 383 ; and Shaw Ware v. Horwood, 14 Ves. 31 ; Taylor V. Dwight, 16 Barb. 536, where a prior v. Shepherd, 1 Y. & C. 271 ; Bullock v.. execution creditor was restrained from Chapman, 2 De G. & S. 211. Comp. levying on the debtor's land, where his Hankey v. Vernon, 2 Cox, 12 ; Wilmot debt had been paid, in order to prevent v. Leonard, 3 Sw. 682. the second execution creditor from col- (x) Curtis v. Smallrige, 2 Freem. lecting his debt. 178 ; Stephenson v. Wilson, 2 Vern. {p) Rowe V. Wood, cited 2 Sw. 234, 325 ; Blackall v. Coombs, 2 P. W. 70 ; n. ; Protheroe v. Eorman, ib. 229 ; O'Ma- Richards v. Symes, 2 Atk. 319 ; Kemp hony V. Dickson, 2 Soh. & Lef. 400. v. Maekrell, 2 Ves. 579 ; Holworthy v: See Countess of Gainsborough u. Gif- Mortlock, 1 Cox, 141 ; Bateman v. WU-, fordj 2 P. W. 424; Hankey v. Vernon, loe, 1 Seh. & Lef 201; Field v. Beau- 2 Cox, 12 ; Bateman v. Willoe, 1 Sch. mont, 3 Madd. 102, 1 Sw. 204 ; Grifath & Lef. 205. V. Edwards, 2 Jur. N. S. 584 ; Prince of (q) Harrison v. Nettleship, 2 M. & K. Wales Assurance Co. v. Trulock, 4 W. 423. See Larabrie v. Brown, 1 D. & J. K. 788, 820, 5 W. R. 14 ; Larabrie v. 205. Brown, 1 D. & J. 205. Comp. O'Neill (r) Marine Insurance Co. v. Hodg- v. Browne, 9 Ir. Eq. 131. son, 7 Cranch (Amer.) 332; Bateman (y) Protheroe «. Eorman, 2 Sw. 229; V. Willoe, 1 Sch. & Lef 205. See Simp- Bateman v. Willoe, 1 Sch. & Lef. 205 ; son V. Lord Howden, 3 M. & C. 97; Harrison v. Nettleship, 2 M. & K. 423; Terrell v. Higgs, 1 D. & J. 388. Billage v. Southee, 9 Ha. 535; Withall (s) Protheroe v. Eorman, 2 Sw. 229; v. Tuckwell, 5 Jur. N. S. 929. Bateman v. WUloe, 1 Sch. & Lef. 205. (z) 7 Cranch (Amer.) 336. [25] * 24 INJUNCTIONS TO EESTEAIN [CH. III. that any fact which clearly proves it against conscience to execute a judgment, and of which the injured party could not have availed himself at law, or of which he might have availed himself, but was prevented by fraud or accident, un- mixed with any fault or negligence in himself or his agents, will Efuthorize a court of equity to interfere by injunction to restrain the adverse party from availing himself of such judg- ment." Relief will accordingly be given where material facts have been discovered since the trial at law, which were fraudu- lently concealed, or cotild not by ordinary care and diligence have been discovered before the trial (a).i So also relief will be given after verdict or judgment where the plaintiff in equity is precluded by the technical process of law from having the judgment set aside, or further proceedings stayed at law, and where the enforcement of the judgment or any further pro- ceedings under the verdict would be against equity (6). * 24 So also "^ relief will be given against a judgment which has been obtained by fraud or collusion (c).^ So also relief will be given against a judgment where the case set up involves an equitable element, or there is an equitable question to be settled before the case can be disposed of at law {d'), or (a) Countess of Gainsborough v. Gif- the time for conveying the land may- ford, 2 P. W. 424; Wilmot u. Leonard, not have arrived. Kelly v. Kelly, 2 3 Sw. 682; Williams v. Lee, 3 Atk. Duvall (Ky.), 363. 223 ; Bateman v. "Willoe, 1 Sch. & Lef. It is said in Skillman v. Holcomb, 1 2 )4 ; Jarvis v. Chandler, T. & R. 319 . Beasley, 131, that it would take a very See Ayre's case, 25 Beav. 513. strong case of fraud, mistake, surprise, or (6) Bateman v. Willoe, 1 Sch. & Lef. accident, to induce the court to interfere 204 ; Jones v. Hughes, 1 Ha. 383 ; Wil- with the completion of a sale upon an liams V. Roberts, 8 Ha. 315 ; Buckland execution at law. Interfering with the V. Gibbins, 32 L. J. Ch. 391 ; Griffith v, execution of its own process is a very Edwards, 2 Jur. N. S. 584. difierent thing from interfering with (c) Isaac V. Humpage, 1 Ves. Jr. the process of another and independent 427 ; 3 Bro. C. C. 463 ; Rowe v. Wood, tribunal. 2 Sw. 234, n. ; Annesley v. Rookes, 3 In ejectment cases, where no discov- Mer. 226, n. ; O'NeUl v. Browne, 9 Ir. ery is sought to aid a defence at law, Eq. 131 ; Taylor v. Hughes, 2 J. & L. and the title at law is admitted, an in- 24 ; Bargate v. Shortridge, 5 H. L. 297. junction will be granted upon terms {d) O'Connor v. Spaight, 1 Sch. & only so as to leave the party to proceed Lef 305 ; Playfair v. Birmingham, Bris- to trial and judgment at law. Ham v. tol, &c., Railway Co., 9 L. J. Ch. N. S. Schuyler, 2 Johns. Ch. 140. 253 ; Barnard v. Wallis, Or. & Ph. 85 ; '^ A judgment creditor will be re- Pearce v. Gray, 2 Y. & C. C. C. 222 ; strained from enforcing his judgment Billage v. Southee, 9 Ha. 539. against the land of a subsequent pur- 1 And the fact that the vendor of land chaser from his debtor, so long as there is insolvent, and has no title to the is other land of the debtor remaining land, is sufficient ground for enjoining unsold, sufficient to satisfy the judg- a judgment against the vendor on his ment. Massie v. Wilson, 16 Iowa, 390. note for the purchase-money, although . [26] CH. m.] PROCEEDINGS AT LAW. * 25 where the equitable defence could not be made available at law (e). A man who has a good equitable as well as a good legal defence to an action at law, is not bound to go into evi- dence at law, but may permit the verdict to go against him at law, and come afterwards to the court for relief, relying on his equitable case (/). 17. Where ejectment has been brought against a tenant, the landlord may make himself defendant to the action, and then file his bill for an injunction, or he may file a bill for an in- junction before he has been admitted to defend the action, making the tenant a party (^). But he cannot let the action go on against the tenant, and then come into equity for an injunction to stay execution (A). A tenant cannot maintain an injunction to restrain his landlord from levying a distress upon him till the result of a trial for ejectment, which is brought against him by other parties, because a tenant cannot be allowed to bring his landlord's title into dispute, even if lands have been demised to him which his landlord has no right to let (i). But where a lease has been granted of freehold and copyhold lands by a man who was only tenant for life of the freehold, but the two descriptions of land were intermixed and confused, the representatives of the tenant for life were restrained from taking out execution on a verdict found for them in ejectment till the hearing, as the ejectment did not inform the court either as to the locality of the freehold lands, or as to the other points which could not be decided till the hearing (Jc). In a case * where there were two defendants to an ejectment, * 25 and one of them who was not a party to the suit refused to give judgment at law, the court would not restrain proceed- ings in ejectment Q}.^ A man who is proceeding fairly to establish his legal right (e) Farquharson v. Pitcher, 2 Kuss. {k) Hardcastle v. Shafto, -1 Anst. 81 ; Whyte v. O'Brien, 1 Sim. & St. 184. 551 ; Jones v. Hughes, 1 Ha. 383 ; (/) Redmond v. Goodall, Jon. 814. Ayre's case, 25 Beav. 513; Maw v. ^ In a bill for an injunction to restrain Ulyatt, 31 L. J. Ch. 38. See Williams proceedings in ejectment, the staleness v. Roberts, 8 Ha. 315. of the defendant's claim, which he is (/) Billage v. Southee, 9 Ha. 539. enforcing at law, is no ground for grant- Ig) Lawley v. Walden, 3 Sw. 142, n.,; ing an injunction. It is the complain- Moses V. Lewis, Jac. 502; Poole v. ant's claim to which the equitable de- Marsh, 8 Sim. 528. fence of a stale claim is applicable. (h) Moses V. Lewis, Jac. 502. Horner v. Jobs, 2 Beasley, 19. {i] Homan v. Moore, 4 Pri. 5. [27] * 26 INJUNCTIONS TO RESTRAIN [CH. III. by ejectment will not be interfered with by the court (m). The rule obtains with peculiar force where the person in possession has got possession by tortious means (n). If an equitable case be made to appear, the court will restrain the proceedings in the action (o), although there may be a question whether the party who makes the application would not be successful at law (jo). The 25 & 26 Vict. c. 42, by which a court of equity is re- quired to determine every question of law and fact incident to the relief sought, does not apply to suits to recover or defend the possession of land under a legal title, or under a title which would have been legal but for the existence of some outstand- ing term, lease, or mortgage. In such cases the same relief only is to be given in equity, as would have been proper accord- ing to the rules and practice of the court, if the Act had not passed. 18. The powers given to courts of common law by the Com- mon Law Procedure Act, 17 & 18 Vict. c. 125, s. 83, to enter- tain defences by plea upon equitable grounds do not interfere with the jurisdiction of the court to restrain actions at law. The powers given by the Act are permissive only, and not com- pulsory, and do not deprive the defendant at law of the right he had before the passing of the Act of coming to a court of equity, and taking the benefit of a defence of which he could not avail himself in a court of law (^q). A party to an action at law, who may have an equitable defence, is not bound to plead it at law, but may come into equity for relief (r), * 26 or he * may resist the action on other grQunds, and also institute a suit for relief (s). He is not precluded from coming to the court, unless he has already set up his equi- table defence at law (f). If he has not pleaded his equitable (m) Lord Sefton v. Lord Salisbury, Sm. 54; Davies v. Stainbank, 6 D. M. 33 L. T. 27. & G. 696. (n) Grafton v. Griffin, 1 R. & M. 336. (»■) lb. Kingsford v. Swinford, 28 L. (o) Attwood V. Barhara, 2 Russ. 186 ; J. Ch. 413 ; Jenner v. Morris, 3 D. F. & Jones V. Bassett, ib. 405 ; Pyke v. North- J. 45 ; Stewart v. Great Western Eail- wood, 1 Beav. 152; Edgecumbe v. Car- way Co., 2 D. J. & S. 319. penter, ib. 171. (s) Davies v. Stainbank, 6 D. M. & (p) Crofts u. Middleton, 8 D. M. & G. 696. G. 192. (() Stewart v. Great Western RaU- (q) Gompertz v. Pooley, 4 Drew, way Co., 2 Dr. & Sm. 438, 2 D. J. & S. 448; Walker v. Micklethwaite, 1 Dr. & 319. [28] CH. III.], PROCEEDINGS AT LAW. * 27 defence at law, he may, after judgment, come into equity for relief (m) : but if he has exercised his option, and has attempted the equitable defence in a court of law, and there is no reason why the court of law should not deal with the equitable plea as well as a court of equity, and give him the same relief as a court of equity, he cannot come to the court and ask for an injunction to restrain the action on the very ground that he has made the subject of his equitable plea (a;). Nor can relief be had in equity, if the equitable defence has been rejected at law on the merits in a case where the court of law had full jurisdic- tion («/.) But if a court of law refuses to entertain jurisdiction on an equitable plea on the ground that it is not authorized to do so by statute (z) ; or if, from any reason, a court of law cannot give the same relief as a court of equity would (a) ; or if, from the way in which the pleadings are framed, the case cannot be heard in a court of laV on the merits (6), the court will not refuse to entertain a bill to restrain the action, merely on the ground of the plaintiff in equity having pleaded an equitable plea to the action (c). A defendant who has pleaded unsuc- cessfully £Ct law on an equitable plea, grounded not upon the laws and principles by which courts of equity are governed, but upon the course and practice of those courts, is not precluded * by the decision at law from filing a bill on * 27 the same grounds to restrain the action Qd}. Where a man brings an action at law, and defendant sets up a release which is impeachable upon equitable grounds, the case does not come within the principle applicable to a party who has attempted an equitable plea at law (e). Unless the plea is such that a court of equity would grant a (u) Thornton v. M'Kewan, 1 H. & M. (n) Waterlow v. Bacon, 2 L. R. Eq. 525. 514. [x) Farebrother v. Welchman, 3 (6) Evans v. Brembridge, 8 D. M. & Drew. 122 ; Leuty v. Hillas, 4 Jur. N. G. 109 ; Waterlow v. Bacon, 2 L. R. Eq. S. 1166 ; Gompertz v. Pooley, 4 Drew. 514. ' 452 ; Evans v. Brembridge, 8 D. M. & (c) Waterlow v. Bacon, 2 L. R. Eq. G. 109; Walker v. Micklethwaite, 1 514. Dr. & Sm. 54 ; Waterlow v. Bacon, 2 (d) Protheroe v. Phelps, 7 D.'M. & L. R. Eq. 514. G. 735. (y) Magnay v. Mines Royal Co., 3 (e) Stewart t). Great Western Rail- Drew. 130 ; Terrell v. Higgs, 1 D. & J. way Co., 2 Dr. & Sm. 438, 2 D. J. & S. 392. 319. {z) Magnay v. Mines Royal Co., 3 Drew. 130. [29] * 28 INJUNCTIONS TO RESTRAIN [CH. III. perpetual injunction, it cannot be made the subject of an equi- table plea at law (/). An equitable plea will not be supported in a court of law, except where the plea, the decision, and the judgment of the court upon it will work out and complete all the equity that belongs to the matter to which the plea refers (^). If the case be one in which a court of equity would only give a qualified or conditional relief, the equitable defence cannot be allowed at law (Ji). The equitable defence allowed by the statute means such a defence as would in a court of equity be a complete answer to the plaintiff's claim, and would as such afford sufficient ground for a perpetual injunction granted abso- lutely and without conditions (i). A party to an action in a court of common law will not be allowed to plead on equitable grounds, matter which he has raised in a suit in equity insti- tuted with reference to the matters in the action (K). 19. There are many cases in which the legal defence to a claim set up at law rests exclusively or in a great degree within the knowledge of the party advancing the claim. As it is against conscience that he should proceed in the asser- * 28 tion of his claim * without communicating the knowl- edge he possesses, or should seek to keep from the court of law facts which the plaintiff in equity alleges to be necessary for his defence, and to be necessary for the court of law to know in order to a due performance of its duty, a court of equity will restrain the proceedings at law until a full discovery has been made of all that he is bound to disclose (l). 20. Injunctions to restrain proceedings at law until answer were formerly called common injunctions. They were granted (/) Mines Royal Co. v. Magnay, 10 N. 770. See "Waterlow u. Bacon, 2 L. Exch. 489; Hyde v. Graham, 1 H. & C. R. Eq. 614. 598. (k) Schlumberger v. Lister, 2 EI. & (g) Clerk v. Laurie, 1 H. & N. 452 ; El. 855. Wakley v. Froggatt, 2 H. & C. 669. (I) Wynne v. Jackson, 2 Kuss. 351 ; (h) Mines Royal Co. v. Magnay, 10 Lord Portarlington v. Soulby, 3 M. & Exch. 489 ; Steele v. Haddock, ib. 643 ; K. 104 ; Glascott v. Copper Mines Co., Vorley v. Bennett, 1 C. B. N. S. 225; 11 Sim. 805; Lord MiUtown d. Stewart, Wood V. Dwarris, 11 Exch. 493; Wode- 3 M. & C. 24 ; Thorpe v. Hughes, ib. house V. Earebrother, 5 E. & B. 277 ; 742 ; Barker v. Barr, 1 Beav. 374; Raw- Solvency Mutual Guarantee Society v. son v. Samuel, Cr. & Ph. 169 ; Pearce Freeman, 7 H. & N. 17 ; Borrowman v. v. Creswick, 2 Ha. 286 ; Benyon v. Net- Rossell, 16 C. B. N. S. 58. tlefold, 3 Mac. & G. 94 ; Williams v. [i) Mines Royal Co. v. Magnay, 10 Roberts, 8 Ha. 329 ; Fitzgerald v. Bult, Exch. 489; Wood «. Copper Mines Co., 9 Ha. App. 65. 17 C. B. 561 ; Wake v. Harrop, 6 H. & [30] CH. III.] PEOCEEDINGS AT LAW. * 29 as of course upon the default of the defendant either in not appearing or in not putting in an answer to the bill in due time. The abuses which arose from bills being filed ostensibly for the purposes of discovery, but in reality for the purpose of delay- ing the plaintiff by means of the injunction, led to the enact- ment 15 & 16 Vict. c. 89, s. 58, whereby it was declared that the rules of the court with respect to staying proceedings at law shall be, so far as the nature of the case will admit, assim- ilated to the rules with respect to injunctions generally, and that such injunctions may be granted on interlocutory applica- tion, supported by affidavit in like manner as other injunctions are granted by the court. An order was also made that no injunction to stay proceedings at law is to be granted, as of course, for default of appearance or of answer to the bill (m). The statute does not deprive a plaintiff in equity of his right to discovery in aid of his defence to an action at law, but merely requires him to verify his bill by affidavit so as to show that the case is not a fictitious one (n). Nor has the court lost its juris- diction in regard to discovery, because courts of law have had jurisdiction in discovery given them (o). 21. The affidavits on which the application is founded must show * that the answer is material to his defence * 29 on the trial of the action, and that the facts stated in the bill are, so far as they are within the knowledge of the plain- tiff, true, and as to all other facts that he believes them to be true (^). If these facts are shown by affidavit, the court will not upon a conflitjt of affidavits determine whetlier the plain- tiff in. equity should have a discovery or not, but will, after interrogatories have been filed, grant as of course an injunction until discovery be given (5). The motion will not be granted until after interrogatories have been filed (r). But after inter- im) Consol. Ord. 25. 476; LoTell v. Galloway, 17 Beav, 6; (n) Senior v. Pritchard, 16 Beav. Harris v. CoUett, 26 Beav. 226. See 476 ; Lovell v. Galloway, 17 Beav. 6, Fox o. Hill, 2 D. & J. 354. Comp. 19 Beav. 643; Harris v. Collett, 26 Magnay w. Mines Royal Co., 3 Drew. Beav. 222. 133. (o) Barry v. Crosskey, 2 J. & H. 1 ; (r) Lovell v. Galloway, 1 W. E. 118; Shepard v. Brown, 4 Giff. 208. Chiltou v. Campbell, 20 Beav. 532 ; (p) Mollett V. Enequist, 25 Beav. Fuller v. Ingram, 5 Jur. N. S. 510 ; but 609 ; Harris v. Collett, 26 Beav. 226. see Fitzgerald v. Bult, 9 Ha. App. 65. See Barker v. Burr, 1 Beav. 374. See as to filing interrogatories, Lambert (g) Senior k. Pritchard, 16 Beav. u. Lomas, 9 Ha. App. 29. [31] *30 INJUNCTIONS TO RESTRAIN [CH. III.- rogatories have been filed, the plaintiff is at liberty to move at once for an injunction to stay proceedings at law without waiting for an answer (s). If, however, it appears from the pleadings, or upon the whole matter taken together, that the 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, the court will not interfere (0- 22. The interrogatories are not required to be as formerly (u), a literal echo of the bill {v). Nor is it necessary that every interrogatory should be founded on a distinct allegation in the bill, unless the nature of the case requires it (x). 23. A bill which prays specifically discovery only should not contain a prayer for general relief. If the prayer for general relief be added to the bill, it cannot be treated as a bill for dis- covery («/). A bill praying relief and discovery, if bad * 30 for * the former, is bad for the discovery (2). A plain- tiff at law who files a bill for discovery, shoiild not pray for an injunction in the mean time to restrain the defendant from all proceedings at law against plaintiff in the action. This prayer for an injunction is a prayer for relief, and there- fore fatal to the bill as a bill for discovery (a). A man not a party to the record at law, should not be made a party to a bill for discovery in aid of a defence to an action (6). 24. With respect to costs, the course is to make the costs of the application for an injunction to restrain an action at law costs in the cause (c). If the plaintiff ha^ delayed ijnreason- ably in applying to the court so that costs have been incurred at law, he will be ordered to submit to such order as the court will make with respect to the costs of proceedings in the court where the action is restrained {d}. He may be required to make the same submission in cases where there does not if s) Lloyd V. Adams, 4 K. & J. 471. Angel v. Westcomb, 6 Sim. 30. See t) White V. Steinwacks, 19 Ves. 83 ; Mills v. Campbell, 2 Y. & C. 389. Thorpe v. Hughes, 3 M. & C. 742; (z) Jones «. Mauud, 3 Y. & C. 347. Ashby V. Jackson, 6 Beav. 336. (a) Andrews v. Luptou, 13 L. J. Ch. (u) See Mackleston v. Brown, 6 Ves. 201. 62. (6) Irving v. Thompson, 9 Sim. 17. {v) Perry v. Tm'pin, Kay, App. 49, (c) Maitland v. Backhouse, 17 L. J. 18 Jur. 594. Ch. 121. {x) Marsh v. Keith, 1 Dr. & Sm. (d) Cotesworth v. Stephens, 4 Ha. 342. 185; Watson v. Alcock, 4 D. M. & G. (y) Ambury v. Jones, 1 Younge, 200 ; 242. [32] CH. III.] PKOCEBDINGS AT LAW. ■ * 30 appear to have been any unreasonable delay in filing the bill (e). 25. The costs of the motion for an injunction to restrain proceedings at law until discovery are (if unsuccessfully op- posed) payable by the defendant, although he may get the costs of the suit generally (/). If the application is unopposed, he is allowed the costs of the discovery (^). (e) Waterlow v. Bacon, 2 L. E. Eq. {g) Harris v. CoUett, 26 Beav. 222. 514. See further as to the costs of discovery, (/) Lovell V. Galloway, 19 Beav. Morg. and Dav. on Costs, 147-151. 643. [33] *31 • FRAUD. [CH. IV. *31 * CHAPTER IV. EQUITABLE GROUNDS FOR RELIEF AGAINST PROCEEDINGS AT LAW. SECTION L— rHAUD. 1. Fraud, most frequent subject of equity jurisdiction. 2. Fraud in the sense of a court of equity defined. 3. Of the concurrent jurisdiction with courts of law. 4. The largest class of frauds arise from misrepresentation. The subject defined. 5. Not necessary to state the existence of- some fact which does not exist. 6. Misrepresentation may consist in concealment. 7. The representation must be of a material fact. 8. And must have been made at the time of the transaction and with reference to it. 9. Must be relied on by party to whom made. 10. And must be of a fact. 11. Notice of the misrepresentation a good answer. 12. Equitable application of the doctrine of law as to misrepresentation. 13. The doctrine where acts have been acquiesced in. 14. Doctrine as to leave and license. 15. Does not apply in favor of a stranger who builds on the land of another with knowl- edge. 16. Relief in equity in case of part performance of parol agreements. 17. Fraud implied from the inequality of footing between parties to a transaction. 18. Transactions between parties sustaining a fiduciary relation to each other watched by courts of equity with more than ordinary care. 19. Principle applies after the actual relation has come to a close. 20. And extends to all the relations in which dominion may be exercised by one man over another. 21. Mere inadequacy of consideration not alone a ground of relief. 22. Relief may be had against fraud upon third parties. 23. Various frauds upon third parties specified. 24. Equity will relieve in favor of particeps criminis when transaction is repudiated on grounds of public policy; also, when not in all respects in pari delicto. 25. Distinction between enforcing illegal contracts and asserting title to money arising from an illegal contract. 1. The subject which most frequently calls for the interfer- ence of a court of equity is comprehended under the extensive head of fraud. The first province of a court of equity being to enforce truth in the dealings of men, the correction and pre- vention of fraud is one of the principles which lies at the very [34] CH. IV.J FRAUD. * 32 root of the whole doctrine of equity (A). A court of equity has an undoubted jurisdiction to relieve against every species of fraud («'), with the single exception of fraud in obtaining the execution or setting up of a will (^).^ 2. It is not easy to give a definition of what constitutes fraud in the extensive signification in which that term is used by a court of equity (T). Fraud is so various in form and color, that it is difficult, if not impossible, to confine it within the limits of any precise definition. The fertility of man's in- vention in devising new schemes of fraud is so great, that courts of equity have declined the hopeless attempt of embrac- ing in one formula all its varieties of form and color, reserving to themselves the liberty to deal with it under whatever form it may present itself: as new devices of fraud are invented, they will be met by new corrections (m). The general principle, * however, on which relief is granted against * 32 fraud is, that where there is fraud there is not that con- sent which is essential to the validity of a transaction (w).^ Fraud in the sense of a court of equity may be said to include properly all acts, omissions, and concealments, which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another (o). Fraud in all cases implies a wilful act on the part of any one whereby another is sought to be deprived by illegal or inequitable means of what he is entitled to either at law or in equity (jj). 3. In many cases of fraud courts of common law have a concurrent jurisdiction with courts of equity. But there are many courses of conduct which a court of equity construes to be fraudulent which cannot be taken notice of by a court of (A) Warden v. Jones, 23 Beav. 493; (m) Sawyer v. Vernon, 1 Vem. 387 ; Green v. Nixon, ib. 630. Lawley v. Hooper, 3 Atk. 279 ; Webb (i) Colt V. WoUaston, 2 P. Wms. v. Eorke, 2 Sch. & Lef. 666; Lord 156 ; Stent v. Baylis, ib. 219 ; Franks Hardwicke's letter to Lord Kaimes ; V. Wearer, 10 Bear. 297 ; Glasse v. Life of Lord Kaimes, vol. ii. p. 341. Marshall, 15 Sim. 76. (n) Bennett w. Vade, 2 Atk. 324. {k) Jones v. Gregory, 2 D. J. & S. (o) 1 Fonb. Eq. bk. i. oh. 2, § 3 ; 83. Story, Eq. Jur. 187. {I) Green v. Nixon, 23 Beav. 530; {p) Green w, Nixon, 23 Bear. 530. Eeynell v. Sprye, 1 D. M. & G. 691, l Jones v. BoUes, 9 Wallace, 364. per Lord Cranworth. 2 Harner v. Fisher, 58 Penn. St. 453. [35] * 33 FRAUD. [CH. IV. law Qq), though it is not easy to define the distinction between that which a court of equity treats as a fraud, and that which is considered fraud at law (r).^ The. circumstance, however, that relief can be had at law does not exclude the jurisdiction of the court (s)- The rule of the court is to assume jurisdic- tion in all cases where the interests of justice call for and re- quire its interference (0- The question for the court always is whether the facts are such as to constitute that kind of fraud which a court of law would necessarily take cognizance of and treat as fraud entitling a man to relief in the same manner and to the same extent as a court of equity would do (m). Although a man may have a good defence to an action * 33 at law, he * is not precluded from proceeding in equity to restrain the action (x). If there be an equitable case stated by the bill, there is jurisdiction in the court to interfere by way of injunction, if necessary, and also by way of ordering the instrument to be delivered up («/). Thus, proceedings at law upon an overdue bill of exchange were restrained, though there was a good defence at law (z). So also proceedings at law upon instruments given for a gambling debt have been restrained (a).^ Whether, however, or not, it will interfere, (?) Trenchard a. Wanley, 2 P. Wms. 16 L. J. Ch. 108 ; London Assurance 166; Butcher I!. Butcher, 1 V.&B. 98; Co. v. Moses, 11 L, T.-532; BUis Clarke v. Manning, 7 Bear. 167. v. Cowne, 12 L. T. 211 ; Allen «. (r) Traill v. Baring, 33 L. J. Ch. Davis, 20 L. J. Ch. 44 ; LleweUin v. 521 ; Stewart v. Great Western RaU- Pace, 1 W. R. 28 ; Small v. Currie, 5 way Co., 2 Dr. & Sm. 438. D. M. & G. 141; Bartlett v. Salmon, 6 (s) Willson V. Short, 6 Ha. 366, 379 ; vD. M. & G. 33 ; Cooper v. Joel, 1 D. E. Robson V. Earl of Devon, 4 Jur. N. S. & J. 242 ; Smith v. Reese River Co., 2 245, per Lord Cranworth. L. R. Eq. 264. («) Chesterfield v. Jannsen, 2 Ves. (z) Hodgson v. Murray, 2 Sim. 517, 155; Evans v. Bicknell, 6 Ves. 182; 3 Sim. 288; Stackhouse u. Countess of Bartlett v. Salmon, 6 D. M. & G. 40; Jersey, 1 J & H. 731. Green v. Nixon, 23 Beav. 530 ; Slim v. (a) Lord Portarlington v. Soulby, 3 Croucher, 1 D. E. & J. 523; Barry v. M. & K. 104; Lord Milltown v. Stew- Crookey, 2 J. & H. 1. art, 3 M. & C. 24. See Cooper ». Joel, (u) Stewart v. Great Western Rail- 1 D. F. & J. 242 ; but see Eox v. Hill, 2 way Co., 2Dr. & Sm. 438,perKinders- D. & J. 356; Thiedemann v. Gold- ley* V. C. Schmidt, 1 D. F. & J. 4. (x) Fernihough v. Leader, 15 L. J. i As to fraud in cases of wills, see Ch. 458 ; London Assurance Co. v. Story Eq. Jur., § 184. Constructive Moses, 11 L. T. 532. fraud is a conclusion of law from ascer- (y) Traill v. Baring, 33 L. J. Ch. tained facts, and a denial of fraud In 527, per Turner, L. J. ; Bennett t). Vade, the answer does not avail if it admits 2 Atk. 324 ; Jervis v. White, 7 Ves. facts from which fraud necessarily fol- 412 ; Esdaile v. La Nauze, 1 Y. & C. lows. Sayre v. Fredericks, 1 C. E. 394 ; Lovell v. Hicks, 2 Y. & C. 48 ; Green, N. J. 205. Allan V. Inman, 7 Jur. 433; Lloyd v. '^ See in this connection Story's Eq. Clarke, 6 Beav. 309; Blair v. Bromley, Jur., § 304, Redfield's ed. [36] CH. IT.J , PEAUD. * 34 depends on the discretion of the court according to all the circumstances of the case. If the court is satisfied that the case is one which may be more satisfactorily tried at law, the action will be allowed to proceed (6). 4. The largest class of cases in which courts of justice are called upon to give relief against fraud is where there has been misrepresentation or suggestio falsi. If a man represents as true that which he knows to be false with the intent to induce another to deal in a matter of interest, and the latter, believing the representation to be true, or not knowing it to be false, acts upon the faith of it and suffers damage thereby, there is fraud to support an action of deceit at law or to be a ground for the rescission of the transaction in equity (c). It is not, however,* necessary in order to constitute fraud that a * 34 man who makes a false representation should know it to be false. It is enough that it be false, if it be made reck- lessly without an honest belief in its truth, or without any reasonable ground for believing it to be true, and be made for a fraudulent or dishonest purpose (ci). If a duty is cast upon a man to know the truth, and he makes a representation in such a way as to induce a reasonable man to believe that it is true, and is meant to be acted on, he cannot be heard to say, if the representation proves to be untrue, that he believed it to be true and made the misstatement through mistake, ignorance, or forgetfulness (e). The principle, indeed, goes further. It is a principle common to both law and equity, that if a man makes a false representation, and the representation is made in such a way or under such circumstances as to induce a reasonable man to believe that it is true, and is meant to be acted on, and the man to whom it has been made acts upon the faith of it, and thereby alters his condition to his prejudice, (6) Clarke v. Manning, 7 Beav. 162. Thorn v. Bigland, 8 Exch. 725 ; Evans See Macintosh v. Wyatt, 3 Ha. 562. v. Edmunds, 13 C. B. 777, 786 ; Smith ' (c) Eyans v. Bieknell, 6 Ves. 174 ; v. Eeese River Silver Mining Co., 2 L. Edwards v. M'Cleay, 3 Sw. 287; Att- K. Eq. 264. See Higgins v. Samels, 2 wood V. Small, 6 CI. & Ein. 233 ; Craw- J. & H. 460. shay V. Thornton, 4 M. & G. 387 ; "Will- (e) Burrowes v. Lock, 10 Ves. 470 ; son V. Short, 6 Ha. 366, 379; Gerhard Moens v. Hey worth, 10 M. & W. 147; V. Bates, 2 E. & B. 476; Jennings v. Hutton v. Rossiter, 7 D. M. & G. 9; Broughton, 17 Beav. 234, 5 D. M. & G. Pulsford v. Richards, 17 Beav. 87, 95 ; 126. Eawhns v. AA'lickham, 3 D. & J. 304; (d) Taylor v. Ashton, 11 M. & "W. SHm v. Croucher, ID. F. & J. 528. 413 ; Ormrod v. Huth, 14 M. & W. 651 ; [37] * 35 FRAUD. , [CH. IV. the former cannot afterwards be heard to say that what he said was false, and to assert the real truth in place of the falsehood which has so misled the other. It is not necessary that the party making the representation should know it to be false, or ought in the due discharge of his duty to have known the truth. It is enough that the representation was made deliber- ately, and in such a way as to give the person to whom it was made reasonable grounds for supposing that it was meant to be acted on (/).•' The principle does not, however, apply either at law or in equity, although a representation may prove to be false, if it was a fair and reasonable one under the * 35 general circumstances of the case, and be * made inno- cently and in an honest belief of its truth, by a man upon whom no duty is cast to know the truth (^). In considering whether a man had reasonable ground to believe a representa- tion to be true, the position in which he was placed, and the sources from which he drew the information, must be taken into consideration (A). Though, however, a man making a representation may at the time believe it to be true, and have made it innocently, yet if, after discovering it to be untrue, he suffers the other party to continue in error, and to act on the belief that no mistake has been made, this from the time of the discovery becomes in the contemplation of a court of equity a fraudulent misrepresentation, even though not so originally (i). 5. To constitute a fraudulent representation, the representa- tion need not be made in terms expressly stating the existence of some fact which does not exist. If a statement be made by a man in such terms as would naturally lead the person to whom it is made to suppose the existence of a certain state of facts, and if such statement be so made designedly and fraudu- (/) Pickard w. Sears, 6 A. & E. 469 ; Smith v. Eeese River Silver Mining Freeman v. Cooke, 2 Exch. 662 ; West Co., 2 L. K. Eq. 264. V. Jones, 1 Sim. N. S. 207 ; Jorden v. (A) Cullen v. Johnston's Trustees, 3 Money, 5 H. L. 185, 210 ; Shm v. Dec. of Court of Session, 3d series, p. Croucher, 1 D. F. & J. 518 ; Swan v. 936. Nortli British Australasian Co., 2 H. & (i) Keynell v. Sprye, 1 D. M. & G. C. 182. 660, 709 ; TraUl v. Baring, 83 L. J. Ch. (g) Ormrod v. Huth, 14 M. & W. 521. 651; Gorsuch v. Cree, 29 L. J. C. B. i Lobdell v. Baker, 3 Met. 469; 308 ; Evans v. Wyatt, 31 Beav. 217 : Brown v. Castles, 11 Cush. 368 ; Tyler Hume V. Pocock, 1 L. R. Ch. Ap. 379 ; v. Black, 13 Howard, U. S. 230 ; Moor- head V. Eades, 3 Bush, (Ky.) 121. [88] CH. IV.] FRAUD. * 36 lently, it is as much a fraudulent misrepresentation as if the statement of an untrue fact were made in express terms (¥). A representation, though literally true, may, under the circum- stances of the case, be a misrepresentation (J). There is a misrepresentation, if a statement is calculated to throw the person to whom it is made off his guard, although it may be literally true (w). A misrepresentation is usually by word; but it may be as well by acts or deeds as by words, by artifices to mislead as well as by actual assertions (n).^ * 6. Misrepresentation may consist as well in the con- * 36 cealment of what is true, as in the assertion of what is false (o). But to amount to a misrepresentation, the conceal- ment must be of something that the party concealing was under some legal or equitable obligation to disclose (;?). If the fact is one wliich ought to have been disclosed, the fact that it may not have been disclosed through mistake, igno- rance, or forgetfulness, cannot be taken into consideration. It is immaterial that the concealment may not have been wilful or with a view to private advantage (^q). 7. But in order that a misrepresentation may support an action at law, or be a ground for relief in equity, it must be, in the language of the Roman law, a representation dans locum contractui. There must be the assertion of a fact, on which the party entering into the transaction relied, and in the absence (k) Lowndes v. Lane, 2 Cox, 363 ; 318 ; Bowles v. Stuart, 1 Sch. & Lef. Walker v. Symonds, 3 Sw. 1, 73 ; Drys- 209 ; Willis v. Willis, 17 Sim. 218 ; Rail- dale V. Mace, 5 D. M. & G. 103 ; Lee v. ton v. Matthews, 10 CI. & Fin. 934. Jones, 17 C. B. N. S. 510, per Cromp- i Where one sold commercial paper, ton, J. and concealed the fact that the maker's (l) Lowndes i*. Lane, 2 Cox, 363 ; check had been protested that day, it Flint V. Woodin, 9 Ha. 618 ; Stanton v. was held a fraud, though he believed Tattersall, 1 Sm. & G. 529. him to be solvent. Brown v. Mont- (m) Edwards v. Wiekwar, 1 L. R. gomery, 20 N. Y. 287. And where a Eq. 68. See CuUen v. Johnston's Trus' person in good credit and solvent had tees, 3 Dec. of Court of Session, 3d been accustomed to have his checks, for series, p. 936. the day, certified good by the teller of (n) Sibbald v. Hill, 2 Dow. 266; the bank in the morning, continued the Lovell V. Hicks, 2 Y. & C. 46 ; Craw- same course after he became utterly shay V. Thornton, 4 M. & 6. 387 ; Burnes insolvent, without disclosing the fact to V. Pennell, 2 H. L. 497, 529. the bank, it was such a fraud as ren- (o) Tapp V. Lee, 3B. &P. 371 ; Early dered the transaction void as between V. Garrett, 4 M. & R. 690. the parties. Bank of the Republic v. (p) Irvine v. Kirkpatrick, 7 Bell, Sc. Baxter, 31 Vt. 101. See also Paddock Ap. 186; Turner v. Harvey, Jac. 169; v. Strobridge, 29 Vt. 470, where this Greenfield v. Edwards, 2 D. J. & S. 582, subject is discussed, and the authorities compared by Redfield, C. J. (q) Pusey «. Desbouverie, 3 P. Wms. [39] * 37 FRAUD. [CH. IV. of which it is reasonable to infer that he would not have entered into it : or the suppression of a fact, the knowledge of which, it is reasonable to infer, would have made him abstain from the transaction altogether (r). The representation must be mate- rial in its nature, and a determining ground of the transac- tion (s). A representation goes for nothing, unless it is a proximate and determining cause of the transaction (m). It is not enough that it may have remotely or indirectly contributed to it, or may have supplied a motive to the other party to enter into it. The representation must be the very ground on which the transaction has taken place. The transaction must be a necessary and not merely an indirect result of the representa- tion (a;). It is not, however, necessary that the repre- * 37 sentation * should be the sole cause of the transaction. It is enough that it may have constituted a material inducement. If any one of several statements, all in their nature more or less capable of leading the party to whom they are addressed to adopt a particular line of conduct, be untrue, the whole transaction is considered as having been fraudu- lently obtained (?/). A man who has made a false representa- tion in respect of a material matter, must, in order to be able to rely on the defence that the transaction was not entered into on the faith of the representation, be able to prove to demonstration that it was not relied on (s). It is not enough for him to say that there were other representations by which the transaction may have been induced (a) : nor can he be heard to say what the other party would have done had no misrepresentation been made (6). 8. It is not, however, enough that there has been a misrepre- sentation, and that it may have conduced in some way to the (r) Pulsford i'. Eichards, 17 Beav. 87, 660 ; Jennings v. Broughton, 5 D. M. & 96. G. 126; Clarke v. Dickson, 6 C. B. N. (s) Jennings w. Broughton, 6 D.M.& S. 453: Smith v. Kay, 7 H. L. 750, G. 126, 136. 775. (u) Barry v. Crosskey, 2 J. & H. 1 ; [z] Rawhns v. Wickham, 3 D. & J. New Brunswick, &c., Railway Co. v. 304 ; Nicoll's case, ib. 387 ; Smith v. Conybeare, 9 H. L. 711 ; Barrett's case, Kay, 7 H. L. 750, 775 ; Kisch v. Cen- 3 D. J. & S. 30. tral Venezuela RaUway Co., 3 D. J. & (x) Burnes v. Pennell, 2 H. L. 497, S, 122, 531 ; Nicoll's case, 3 D. & J. 387, 439 ; la) Nicoll's case, 3 D. & J. 387, 439. New Brunswick, &c.. Railway Co. v. lb) Reynell w. Sprye, 1 D. M. & G. Conybeare, 9 H. L. 711. 660 ; Smith v. Kay, 7 H. L. 750, 770 ; (tj) Keynell v. Sprye, 1 D. M. & G. Traill v. Baring, 33 L. J. Ch. 521, 527. [40] CH. It.] FRAUD. * 38 transaction in question. It is necessary that it should have been made in relation to the transaction in question, and with a view to induce the other party to act in the way that occasions the injury (c). A representation which has been made some time before tlie date of the transaction is not sufficient, unless it can be shown to have been immediately connected with it (cZ). A representation, to be of any avail whatever, must, unless under special circumstances, have been made at the time of the treaty (e), and should not have relation to any * collateral matter, or other relation or dealing between * 38 the parties (/). 9. A misrepresentation, to be of any avail whatever, must enure to the date of the transaction in question (^). If a man to whom a representation has been made knows at the time, or discovers before entering into a transaction that the representation is false (A), or resorts to other means of knowl- edge open to him, and chooses to judge for himself in the mat- ter, he cannot avail himself of the fact that there has been misrepresentation, or say that he has acted on the faith of the representation (t). 10. A false statement, to amount to a misrepresentation against which relief may be had either at law or in equity, should be in respect of an ascertainable fact, as distinguished from a mere matter of opinion (k}.^ A representation which (c) East India Co. v. Henchman, 1 thwaite, 5 Ha. 298, 306; Nelson v. Yes. Jr. 287 ; Dobell v. Stevens, 3 B. & Stocker, 4 D. & J. 465. C. 623; Harris v. Kemble, 5 Bligh, N. {i) Lysney v. Selby, 2 Kaym. 1118, S. 730; Attwood w. Small, 6 CI. & Fin. 1120; Attwtfbd v. Small, 6 CI. & JFlu. 232, 445 ; Irvine v. Kirkpatrick, 7 Bell, 232 ; Clapham v. Shilleto, 7 Bear. 146 ; Sc. Ap. 186; Burnes v. Pennell, 2 H. Vigers v. Pike, 8 CI. & Fin. 562, 650; L. 497, 529 ; Smith v. Kay, 7 H. L. 750, Jennings v. Broughton, 17 Beav. 234, 5 775 ; NicoU's case, 3 D. & J. 387, 440. D. M. & G. 126 ; Eobson v. Lord Deron, (d) Bm:nes v. Fennell, 2 H. L. 497, 4 Jur. N. S. 245 ; Fairbrother w. Gibson, 530. See Maunsell v. Hedges, 4 H. L. 1 D. & J. 602. 1060, per Lord St. Leonards ; Barrett's [Ic] Lysney v. Selby, 2 Raym. 1118 ; case, 2 D. J. & S. 30. Brunton v. Lister, 3 Atk. 386 ; Jennings (e) Harris v. Kemble, 1 Sim. 122^per v. Broughton, 5 D M. & G. 134. Sir J. Leach. See Wheelton v. Har- * " A representation of what the law disty, El. BI. & El. 246 ; Hotsom v. will or will not permit to be done, is Browne, 9 C. B. N. S. 445; Smith v.' one upon which tlie party to whom it is Kay, 7 H. L. 750. made has no right to rely ; and if he (/) Harris v. Kemble, 1 Sim. 122, 5 does so, it is his own folly, and he can- Bligh, N. S . 730 ; National Exchange not ask the court to relieve him from Co. V. Drew, 2 Macq. 103. the consequences. The truth or false- {g) Irvine v. Kirkpatrick, 7 Bell, Sc. hood of such a representation can be Ap. 186. tested by ordinary vigilance and atten- (h) lb. ; Lord Brooke v. Eound- tion. It is an opinion in regard to the [41] 39 FRAUD. [CH. IV. merely amounts to a matter of opinion or judgment, or is vague and indefinite in its nature and terms, or is merely a loose, conjectural, or exaggerated statement, goes for nothing, though it may not be true, for a man is not justified in placing reliance on it (/). But there must be no material misstate- ment of a fact (m). The representation of an actual state of things as existing is equivalent to the representation *39 of a fact (w). As distinguished from * the representa- tion as to a fact, or as to the actual existence of a cer- tain state of things, the representation as to an intention to do, or to abstain from doing, something, is not a ground for relief, either at law or in equity (o). 11. The allegation of misrepresentation may be effectually met by proof that the party complaining was well aware and cognizant of the real facts of the case, but the proof of knowl- edge must be clear and conclusive.^ A man who, by misrep- law, and is always understood as such." Fish V. Cleland, 33 111. 243, 5 Hill, 303. In Pennsylvania it is settled that the " false statement of a material matter will not overthrow a bargain unless the statement was the means of producing it." Clark v. Ererhart, 63 Penn. St. 350. But query whether such state- ment would be strictly material. (I) Haycraft v. Creasy, 2 East, 92 ; Lord Brooke v. Eoundthwaite, 5 Ha. 298 ; Irvine v. Kirkpatrick, 7 Bell, Sc. Ap. 186 ; Jennings v. Broughton, 5 D. M. & G. 136; New Brunswick, &c., Railway Co. i\ Conybeare, 9 H. L. 711 ; Kisch V. Central Venezuela Railway Co., 3 D. J. & S. 122; Denton v. Mac- neil, 2 L. R. Eq. 352. (m) Kisch v. Central Venezuela Rail- way Co., 3 D. J. & S. 122; Denton v. Macneil, 2 L. R. Eq. 352. (n) Piggott V. Stratton, John. 359, 1 D. F. & J. 49. (o) Jorden v. Money, 5 H. L. 214. See Maunsell v. Hedges, 4 H. L. 1039 ; Warden v. Jones, 2 D. & J. 77, 85 ; Pig- gott V. Stratton, John. 359, 1 D. P. & J. 49 ; Laver v. Fielder, 32 Bear. 4. 1 In Stephens v. Orman, 10 Fla. 9, it is held, that where the complainant had full opportunity to examine the subject- matter of the contract, and did examine it, and trusted to his own judgment, and not to the representations of the other party, he could not be relieved in equity, though the defendant concealed [42] material facts. But Judge Redfleld, in commenting on this subject, says, it is questionable how far the circumstance that the facts were open to the inspec- tion of both parties should excuse the party for obtaining an unjust advantage either by suppression of the truth or suggestion of falsehood, unless the other party is guilty of unwarrantable disregard of the most obvious precau- tions to secure his own interests. Story's Eq. Jur., Redfield's ed., § 203/, note. In Moorhead v. Eades, 3 Bush, (Ky.) it is held, that when a confiding vendee had no fitting or reasonable opportunity to examine sufficiently for himself the lot of goods constituting the stock of a retail store, and decide on his own judgment, the positive asser- tion and assurance of the vendor, "that tlie cost and carriage of the goods amounted to three thousand five hun- dred dollars," when, as afterwards ascer- tained, the total value did not exceed two thousand dollars, such assurance and assertion, according to the circum- stances, may be either actually or con- structively fraudulent. Wlien the ven- dor knew or believed that it was not true, the afiirmation was actually fraudu- lent ; and even if he believed it to be true, it might be constructively fraudu- lent; for, unless he knew it to be true, his duty was in good faith to express candidly his mere opinion, which ought not to disarm tlie vendee, or lull his pru- CH. IV.J FEATTD. * 40 resentation or inaccurate statements, has misled another, cannot be heard to say that it was his duty to institute inqui- ries, but must, in order to be able to rely on the defence that he was acquainted with the facts of the case, be able to show clearly, and upon incontestable evidence, that he knew the representation to be untrue (p). It is not enough that there may be circumstances in the case, which, in the absence of the representation, might hkve been sufficient to put him on inquiry. The doctrine of notice has no application where a distinct representation has been made. A man to whom a particular and distinct representation has been made, is entitled to rely on the representation, and need not make any further inquiry, although there are circumstances in the case from which an in- ference inconsistent with the representation might be drawn (5). He is not bound to inquire, unless something has happened to excite suspicion (r). The effect of what would be otherwise notice, may be destroyed, not only by actual misrepresentation, but by any thing calculated to deceive, or even to lull suspicion, on a particular point (s).^ * 12. The principle of law, that a man who makes a * 40 representation to another in such a way, or under such circumstances, as to induce him to believe that it is meant to be acted on, is liable as for a fraud, in the event of the repre- sentation proving to be false, and damage accruing thereby to dent vigilance, and on which opinion he S3 ; Darlington v. Hamilton, Kay, 550 ; therefore acts at his peril ; and there- Smith v. Harrison, 26 L. J. Ch. 412. fore a positive affirmation, if untrue, ^ In Maul v. Rider, 59 Penn St. 167, was both reckless and deceptive. See the question of notice is discussed. It also Watts v. Cummins, 59 Penn. St. is held that the record of a deed is 84. , notice only to those bound to search for (p) Dyer v. Hargrave, 10 Ves. 505 ; it. It is not publication to the world at Vigers v. Pike, 8 CI. & Fin. 562, 650 ; large. And in reference to constructive Willson V. Short, 6 Ha. 366, 375 ; Kisch notice it is considered well settled, that V. Central Venezuela Railway Co., 3 whatever puts a party on inquiry D. J. & S. 122. amounts in judgment of law to notice, (q) Van v. Corpe, 3 M. & K. 269 ; provided the inquiry becomes a duty, night V. Barton, ib. 282 ; Willson v. as in case of purchasers and creditors. Short, 6 Ha. 366, 377 ; Reynell v. Sprye, and would lead to the knowledge of the 1 D. M. & G. 660, 710; Kisch u. Cen- requisitefactby the exercise of ordinary tral Venezuela Railway Co., 3 D. J. & diligence and understanding. Notice S. 122; Smith v. Reese River Silver of a general rumor of a conveyance is Mining Co., 2 L. R. Eq. 264. not considered actual or constructive (r) Rawlins v. Wickham, 8 D. & J. notice; There must be some act; some 304. declaration from an authentic source, (s) Dykes u. Blake, 4 King. N. C. which a person would be careless if he 463 ; Bartlett v. Salmon, 6 D. M. & G. disregarded. [43] *41 FRAUD. [CH. IV. the party to whom it was made, though common to both law and equity, is not so general in its application at law as in equity. In equity, the principle is of universal application, and is tlie foundation of a most salutary part of the jurisdic- tion. Whatever may be the circumstances or peculiarities of the case, a court of equity will not permit a man who has so conducted himself as to cause a reasonable man to believe in the existence of a certain actual state of things, and to believe that the representation so conveyed to his mind was meant to be acted on, to derogate from an interest in which that other has been induced to deal upon the faith of the representation, by determining the state of things which he has so held forth as the consideration for the change of his condition by the other, or to enforce his legal right, if any, against him, unless the latter has received the benefit which he contemplated at the time he was induced to alter his condition (f). Where, accordingly, a lessor, pending an agreement for a building lease, represented to the intended lessee, that he could not obstruct the sea-view from the houses to be built by the lessee, pursuant to the proposed lease, because he himself was a lessee under a lease for 999 years, containing covenants which re- stricted him from so doing ; but after the building lease had been'taken, and the houses built upon the faith of the repre- sentation, the lessor surrendered his 999 years' lease, and took a new lease omitting the restrictive covenants, the court restrained him, by injunction, from building so as to obstruct the sea-view (m). So, also, where on one of two partners retir- ing from business, it was left to arbitration to determine what was to be paid to the retiring partner for the good-will of the business, and they, on the clear understanding of the * 41 parties * that the retiring partner would not set up trade in the same street, or in the vicinity, allowed him 500^. as the share of the good-will, but the award was silent on tlae subject; the court, nevertheless, upon parol evidence of the understanding on which the award was made, restrained (t) Major V. Major, 1 Drew. 165; 240; Dendy v. Gary, 9 Jur. N. S. 845; Evans v. Bremridge, 2 K. & J. 174, 8 D. Yeomans v. Williams, 1 L. R. Eq. 185. M. & G. 100 ; Piggott v. Stratton, John. (u\ Piggott v. Stratton, John. 359, 1 359, ID. F. & J. 49; Cooper M.Joel, ti. D. E. & J. 83. [44] CH. IV.] FRAUD, *42 him from carrying on trade in the same street or the same vicinity (x). 13. The equitable doctrine of acquiescence is founded on the same principle. Parties who stand by without asserting their rights, and allow others to incur liabilities which they might not have incurred if those rights had been asserted, will not afterwards be permitted by a court of equity to set up those rights to the prejudice of those by whom such liabilities have been incurred Qi). Where, for instance, a man builds a house upon land, supposing it to be his own, or believing that he has a good title, and the real owner, perceiving his mistake, abstains from setting him right, and leaves him to persevere in his error : or where a man, under an expectation created or en- couraged by the owner of land, that he shall have a certain interest, takes possessi«n of such land with the consent of the owner, and upon the faith of such promise or expectation, with the knowledge and without objection by him, lays out money on the land : in such cases a court of equity will not afterwards allow the real owner or the landlord, as the case may be, to assert his legal right against the other without at least making him a proper compensation for the moneys which he has expended (s). If the works on which the moneys have been expended are of a permanent character, or are works which point to permanence, the court will not allow them to be interfered with, even on payment of money, but will require the land-owner to be satisfied with a proper compen- sation in respect * of the land which has been so * 42 taken (a). The principle applies to companies as well as individuals (S). 14. The rule at law as to leave and license not being coun- termandable, cannot, perhaps, as far as it goes, be distinguished [x) Harrison v. Gardiner, 2 Madd. Gerrard v. O'Eeilly, 3 Dr. & War. 414 ; 198. Laird v. Birkenliead Eailway Co., John. (y) Hunsdon v. Clieyney, 2 Vern. 514 ; Harcourt v. White, 28 Beav. 303 ; 150 ; Raw v. Bote, ih. 239 ; Draper v. Eamsden v. Dyson, 1 L. R. H. L. 129. Borlase, !6. 369 ; Berrisford t). Millward, (a) Clayering v. Thomas, cited 5 2 Atk. 49 ; Nicholson v. Hooper, 4 M. Ves. 689 ; Duke of Beaufort v. Patrick, & C. 179 ; Olliver v. King, 8 D. M. & G. 17 Beav. 60; Somersetshire Canal Co. 110; Daries . Wakley, 26 Beav. 309; Hewlins v. Shippam, 5 B. & C. 20; Laird u. Birkenhead Railway Co., 221; Liggins v. Ince, 7 Bing. 682; John. 500. Davies v. Marshall, 10 C. B. N. S. 711. (. Sandys, 18 Ves. (b) Rhodes i;. Bate, 1 L. E. Ch. App. 318; Jones v. Thomas, 2 Y. & C. 498 ; 252. See Maitland v. Irvmg, 15 Sim. Edwards v. Meyrick 2 Ha 60 68 o?I' ^Z';!','"' r ^^""'fu' ^^ ^;A ^^l- ' I" reference to this subject gene- ^} '^o^^'u "'!..''■ ^^S^'house, 17 L. J. rally, see Highberger v. Stiffler, 21 Md. Ch. 121 ; Hoghtonf. Hoghton, 15Bear. 338. 300 ; Wright v. Vanderplank, 8 D. M. & G. 135. [50] CH. IV.] FRAUD. *48 acquired and abused, or where confidence is reposed and be- trayed (e). If the confidence or the influence can be shown to exist, the rules of equity are just as applicable in the one case as in the other (/). 21. Mere inadequacy of consideration or inequality in a bar- gain is not a ground for relief, if the party was in a situation to judge for himself, and entered into the transaction deliber- ately and advisedly (^r).! The fact that he may be an illiterate person, or of advanced age, or in distress, or in bad health, and may have had no independent legal advice, is immaterial if it appear that he was fully competent to form an independent judgment (A). But the case is otherwise if the inadequacy of consideration is of so gross a nature as to shock the conscience, and amounts to conclusive evidence of fraud (i) ; or if one of the parties to *the transaction was from age, *48 ignorance, weakness of mind, body, or disposition, unable to protect himself (A;). If it appear that one of the parties to the transaction was, from any of these causes, unable to protect himself, and that he had no independent profes- sional advice, the onus of proof rests on the party who seeks to uphold the transaction to show that the other party entered into the transaction voluntarily and deliberately, knowing its nature and efiect, and that 'his consent was not obtained by reason of any influence exerted over him (Z). (e) Dent v. Bennett, 4 M. & C. 269 ; (i) Heathcoate v. Paignon, 2 Bro. C, Cooke V. Lamotte, 15 Beav. 234 ; Bil- C. 173 ; Evans v. Llewellin, 1 Cox, lage V. Southee, 9 Ha. 534, 540; Smith 333; Griffith v. Spratley, ib. 383; tJn V. Kay, 7 H. L. 750, 779 ; Coulson v. derhill v. Horwood, 10 Ves. 209, 219 Allison, 2 D. F. & J. 521 ; Rhodes v. Borell v. Dann, 2 Ha. 440, 450. Bate, 1 L. R. Ch. App. 252. [k] Evans v. Llewellin, 1 Cox, 333 (/) 7 H. L. 779, per Lord Kings- Griffith v. Eobbins, 3 Madd. 191, down. See Norton v, Kelly, 2 Eden, Abearne u. Hogan, Dru. 310 ; Cooke u! 286 ; Casborne v. Barsham, 2 Beav. 75 ; Lamotte, 15 Beav. 234 ; Smith v. Kay, Boyse v. Russborough, 3 Jur. N. S. 7 H. L. 750 ; Rhodes v. Bate, 1 L. E, 373 ; Beanland v. Bradley, 2 Sm. & G. Ch. App. 252. 339 ; Nottidge v. Prince, 2 GiflF. 246 ; ' {1} Ardglasse v. Musohamp, 1 Vern. Harrison v. Guest, 6 D. M. & G. 424, 8 236 ; Evans v. Llewellin, 1 Cox, 333 : H. L. 481 ; Williams v. Bayly, 1 L. R. Griffith v. Robbins, 3 Madd. 191 ; Wood H. L. 200. V. Abrey, ib. 417 ; Willan v. Willan, 2 (g) Griffith v. Spratley, 1 Cox, 383 ; Dow. 274 ; Dent v. Bennett, 4 M. & C. Copis «. Middleton, 2 Madd. 410 ; Wood 273; Abearne v. Hogan, Dru. 310; V. Abrey, 3 Madd. 417. Cooke v. Lamotte, 15 Beav. 234 ; Smith (/i) Hunter v. Atkins, 3 M. & K. 113; v. Kay, 7 H. L. 750 ; flhodes v. Bate, 1 Knight V. Marjoribanks, 11 Beav. 322, L. R. Ch. App. 252. 2 Mac. & G. 10; Richards o. Curlewis, i See Howard v. Edgell, 17 Vt. 9; 3 Eq. Rep. 278 ; Curzon v. Belworthy, Erwin v. Parham, 12 How. U. S. 3 H. L. 742; Harrison v. Guest, 6 D. 197. M. &G. 434; 8 H. L. 481. [51] # *49 ^r PEAUD. [CH. IV. 22. The equitable rule being, that particular persons in con- tracts, and other acts, shall not only transact bond fide betwaen themselves, but shall not transact maid fide in respect to other persons who stand in such a relation to either as to be affected by the transaction, or the consequences of it, relief may be had in equity when a contract, or other act, is substantially a fraud upon the rights, interests, or intentions of third parties (m). Upon this principle relief may be had in equity against sales by expectant heirs of their expectancies (w), or by reversioners or remainder-men of their reversions or remainders (o). But it is open to much doubt whether the principle should be extended to the case of reversioners and remainder- men (p). 23. Other classes of transactions against which a 49 court of equity * will relieve, as being in fraud of third parties, are frauds upon marriage articles (^q) ; frauds upon the marital rights (r) ; bonds given to marry the obligor upon the deafli of a parent, or person standing in loco parentis, from whom the obligee has expectations, and from whom the transaction is to be kept concealed (s) ; bonds given, or agree- ments made, as a reward for using influence over others in favor of the obligee (t) ; secret agreements made by creditors with their debtors to represent their debts less than they are, (m) 2 Ves. 157, per Lord Hardwicke, (q) Redman v. Redman, 1 Vern. 348 ; "Wallis !;. Duke of Portland, 3 Ves. Gale v. Lindo, ib. 475 ; Lamlee v. Han- 502. ' mam, 2 Vern. 499 ; Turton v. Benson, (n) Twisleton v. Griffiths, 1 P. "W. 1 P. Wras. 496 ; Nerille v. Wilkinson, 810 ; Cole v. Gibbons, 3 ib. 298 ; Pea- 1 Bro. C. C. 548 ; Scott v. Scott, 1 Cox, cock V. Evans, 16 Ves. 512 ; Gowland 366 ; Jones v. Martin, 5 Ves. 265, n. ; V. De Faria, 17 Ves. 20 ; King v. Ham- Palmer v. Neave, 11 Ves. 165. See let, 2 M. & K. 456 ; Earl of Aldborough M'Neill v. Cahill, 2 Bligh, 228. V. Trye, 7 CI. & Fin. 486; Edwards v. {,■) Goddard v. Snow, 1 Russ. 485; Burt, 2 D. M. & G. 68 ; Salter v. Brad- St. George v. Wake, 1 M. & K. 610 ; sliaw, 26 Beav. 164 ; Bromley v. Smith, England v. Downs, 2 Beav. 522; Tay- ib. 662 ; Talbot v. Staniforth, IJ. & H. lor v. Pugh, 1 Ha. 608 ; Llewellin v. 484. Comp. Shelley v. Nash, 8 Madd. Cobbold, 1 Sm. & G. 376 ; Griggs v. 282; Fox v. Wright, 6 Madd. 111. Staplee, 2 De G. & S. 572; Wrigley v. (o) Davis V. Duke of Marlborough, 2 Swainson, 3 De G. & S. 458 ; Downes Sw. 151; Wood u. Abrey, 3 Madd. 417 ; v. Jennings, 32 Beav. 290; Chambers Davies v. Cooper, 5 M. & C. 270 ; Ed- v. Crabbe, 34 Bear. 457. wards v. Burt, 2 D. M. & G. 55 ; Talbot (s) Woodhouse v. Shepley, 2 Atk. V. Stanifortli, 1 J. & H. 484 ; Roberts v. 535 ; Cock v. Richards, 10 Ves. 429. Foster, 29 Beav. 467 ; Perfect v. Lane, (t) Debenham v. Ox, 1 Ves. 276. 3 ^-^-f- J; ^^^\ Comp. Beckley v. Newland, 2 P. Wms. (p) Wood V. Abrey, 3 Madd. 417; 182; Harwood v. Tooke, 2 Sim. 192; Tottenham v. Emmctt, 14 W. R. 8. Wethered v. Wethered, ib. 188. [52] CH. IV.] FRAUD. *50 in order to deceive third persons (m) ; secret agreements between a particular creditor and a debtor, upon a composi- tion by tlie debtor with his creditors, whereby the former secures to himself an undue advantage over the rest of the creditors (x) ; agreements between a company*, and a creditor of the company, that the latter shall recover judgment against the company, and take out execution against a particular share- holder of the company (2/) ; and transactions in fraud of credi- tors (2). Here, also, may be noticed those transactions which * are in fraud of Acts of Parliament, or other * 50 legal provisions ; frauds upon powers (a) ; the- cases J in which a bond given to secure one object is oppressively used to compel another (6) ; and transactions which are void upon principles of public policy, such as gaming (c) or stock-job- bing (c^) bonds ; bonds to secure future cohabitation (e) ; instruments containing conditions contrary to good morals or domestic peace (/) ; transactions affected by champerty (^) ; marriage brokage bonds (A) ; place brokage bonds (^i} ; bonds (u) Neville v. Wilkinson, 1 Bro. C. C. 543; Eastabrook v. Scott, 3 Ves. 456. Ex parte Sadler, 15 Ves. 52 ; Dal- biacu. Dalbiae, 16 Ves. 125. See Vaux- hall Bridge Co. v. Earl Spencer, 2 Madd. 356 ; Simpson v. Lord Howden, IKeen, 583; 3 M. & C. 97. (x) Jackman v. Mitchell, 13 Ves. 581 ; CuUingworth v. Lloyd, 2 Bear. 385; Pfleger ». Browne, 28 Bear. 391 ; Mare v. Sandford, 1 Giff. 288; Wood v. Barker, 1 L. R. Eq. 139. (,y) Taylor v. Hughes, 2 J. & L. 24 ; Eernihough v. Leader, 15 L. J. Ch. 458; 4 Ra. Ca. 373 ; Horn v. Kilkenny, &c., Railway Co., 1 K. & J. 399 ; Bargate v. Shortridge, 5 H. L. 247. Comp. Green V. Nixon, 23 Bear. 530; Beck v. Dean, 8 Jur. N. S. 14. (z) HoUoway v. Millard, 1 Madd. 414 ; Harman v. Richards, 10 Ha. 81 ; Goldsmith v. Russell, 5 D. M. & G. 547 ; French v. French, 6 D. M. & G. 95 ; Thompson v. Webster, 4 Drew. 628 ; Eraser v. Thompson, 4 D. & J. 660. (a) Sug. Pow. 609; Agassiz v. Squire, 18 Beav. 431 ; Beere v. HofiFmeister, 23 Beav. 101 ; Wellesley v. Earl of Morn- ington, 2 K. & J. 143. (b) IJurston v. Sandys, 1 Vern. 411 ; 2 Ch. Ca. 186 ; Peele v. Capel, 1 Str. 534 ; Hillyard v. Stapleton, 1 Eq. Ab. 86 ; Grey v. Hesketh, Amb. 268 ; Roy u. Duke of Beaufort, 2 Atk. 190. (c) Blackwell v. Redman, 1 Ch. Rep. 48 ; Humphreys v. Rigby, 2 Freem. 228 ; Rawden v. Shadwell, Amb. 269 ; Graves v. Houlditch, 2 Pri. 147 ; Earl of Milltown V. Stewart, 3 M. & C. 18. Comp. Quarrier v. Colston, 1 Ph. 151. (rf) Bancroft v. Wentworth, 3 Bro. C. C. 11 ; Bullock V. Richardson, 11 Ves. 373. (e) Whaleyi;. Norton, 1 Vern. 483; Priest V. Parrott, 2 Ves. 160 ; Franco v. Bolton, 3 Ves. 368. (/) Tenant v. Braie, Toth. 78 ; Trai- ton V. Traiton, 1 Vern. 418 ; Brown v. Peck, 1 Eden, 140. (. Clay, 7 Beav. 188. See Railway Co. v. Cripps, 5 Ha. 91 ; Bate Cochrane v. Willis, 1 L. E. Ch. App. V. Hooper, 5 D. M. & G. 338; Stafford 58. V. Stafford, 1 D. & J. 197. (g) Mortimer w. Cupper, 1 Bro. C. C. (c) Dixon V. Monkland Canal Co., 5 156 ; Ridgway v. Sneyd, Kay, 627 ; Wills. & Sh. Sc. Ap. 451. Baxendale v. Scale, 19 Beav. 601. See (d) Haven u. Foster, 9 Pick. (Amer.) Davis v. Shepherd, 1 L. R. Ch. App. 112. See LesUe i-. Baillie, 2 Y. & C. C. 410. C. 91. (A) Okill V. Whittaker, 1 De G. & S. (e) Calveriey v. WiUiams, 1 Ves. Jr. 83 ; 2 Ph. 338. [57] * 55 MISTAKE. [CH. IT, equity, unless there is evidence to show that the other was aware of and perceived the mistake, but did not rectify it (z). But, even in cases wliere it does not appear that the other party was aware of the mistake, relief may be had in equity, if under the general circumstances of the case it appears to the court that the transaction should not be allowed to stand (A;). 5. What is the nature or degree of mistake which is reliev- able in equity, as distinguished from mistake which is due to negligence, and, therefore, not relievable, cannot well be defined, so as to establish a general rule, but must, in a great measure, depend on the discretion of the court, under all the ■ circumstances of the case. Though a court of equity will relieve against mistake, it will not assist a man whose condi- tion is attributable only to that want of due diligence which may be fairly expected from a reasonable person (Z). Parties, for instance, who having a good defence, or plain and complete remedy at law, have neglected to avail themselves of it there, cannot come to equity for relief (rri). Nor has a purchaser, who is evicted by reason of a defect in title which his legal adviser has overlooked, an equity to recover his purchase- money (n)} Nor can relief be had against a forfeiture where a man who is charged with a legal obligation neglects to per- form it (o). 6. If there is an" error in the reduction of an instru- * 55 ment into * writing, so that the instrument fails through some mistake of the draftsman, either in point of fact or (i) See Cocking v. Pratt, 1 Ves. 400 ; Barnes, 3 Euss. 94. See Marquis of East India Co. v. Neave, 5 Ves. 173 ; Breadalbane v. Marquis of Cliandos, 2 East India Co. v. Donald, 9 Ves. 275; M. &, C. 719. Hore V. Becher, 12 Sim. 465; Worsley (n) Urmston v. Pate, 3 Ves. 235, n. V. Franlc, 11 L. T. 392; Brougliton v. See Maynard v. Moseley, 3 Sw. 651; Hutt, 3 D. & J. 501. Cator v. Lord Pembroke, 1 Bro. C. 0. (h) East India Co. v. Neave, 5 Ves. 801; 2 Bro. C. C. 282; Thomas v. 173. Powell, 2 Cox, 394. (I) Duke of Beaufort v. Neeld, 12 CI. (o) Gregory v. Wilson, 9 Ha. 683, & Ein. 248, 286 ; Leuty v. Hillas, 2 D. 689. & J. 110 ; Wild V. Hillas, 28 L. J. Ch. i See to same point, Earle v. DeWitt, 170 ; Price o. 'Ley, 4 Giff. 235. 6 Allen, 520. Where a party asks for an (m) Stephenson v. Wilson, 2 Vern. mjunction to restrain another from an 325 ; Blackball v. Coombs, 2 P. Wms. inequitable use of his legal title, he 70 ; Holworthy v. Mortlock, 1 Cox, must show such facts as entitle him to 141; Hankey v. Vernon, 2 Cox, 12; rescind on the ground of mistake or Stevens «. Praed, 2 Ves. Jr. 519; Bate- fraud. Watts v. Cummins, 59 Penn. man v. Willoe, 1 Sch. & Lef. 201 ; Hare St. 84. V. Horwood, 14 Ves. 31 ; Drewry v. [58] CH. IV.] ACCIDENT. * 55 law, to represent the real agreement of the parties, or omits or contains stipulations contrary to the common intention of all the parties, the court will correct and reform the instru- ment so as to make it conformable to the real intent of the parties (^).^ It makes no difference that the instrument may have been drawn up by the party who seeks relief (5'). But an instrument will not be rectified unless upon the clearest evi- dence of the alleged mistake, and unless it can be shown, clearly and precisely, what is the form to which the instru- ment ought to be brought, and unless it appear, upon clear and satisfactory proof, that the intention of the parties to which the Instrument is sought to be made conformable, continued con- currently in the minds ol" all the parties down to the time of its execution (r).^ If the mistake be not common to all the parties (s), or if one of the parties knew of the mistake at the time he executed the deed, the instrument cannot be recti- fied. Eectification can only be had when both parties executed it under a mistake, and have done what neither of them in- tended (t).8 Parol evidence is admissible to show what the intention of the parties really was (u). SECTION III. — ACCIDENT. 1. Relief in equity in cases of accidental loss or destruction of instrument, but none from covenants which party has voluntarily entered into. 2. Nor in any c^ase where accident has arisen from party's own gross negligence or fault. {p) Beaumont v. Braraley, T. & R. Murray v. Parker, 19 Beav. 308 ; Lack- 41 ; Cockerell v. Cholmeley, Taml. ersteen v. Lackersteen, 6 Jur. N, S. 435 ; Ashurst v. Mill, 7 Ha. 502 ; Bar- ■1111. See further on the subject of row Wi Barrow, 18 Beav. 529; Murray rectification and mistake, Pap. Jurid. V. Parker, 19 Beav. 308 ; Wake v. Har- Society, vol. 3, p. 173. rop, 1 H. & C.202; Borrowman d. Eos- l Woodbury Sav. Bank v. Charter sell, 16 C. B. N. S. 58; Scholfield v. Oak Ins. Co., 31 Conn. 517; Longhurst Lockwood, 32 Beav. 436 ; 33 L. J. Ch. v. Star Ins. Co., 19 Iowa, 364 ; Jordan 106. V. Stevens, 51 Me. 78 ; Brown v. Lam- (?) Ball V. Storie, 1 Sim. & St. 218. phear, 35 Vt. 252; Canedy u. Morey, (r) Lord Townshend v. Stangroom, 6 13 Gray, 373. Ves. 834 ; Beaumont v. Bramley, T. & ^ gtockbridge Iron Co. v. Hudson E. 41, 50; Cockerell v. Cholmeley, Iron Co., 102 Mass.49; Nevius i'. Dun- Taml. 435 ; Carpmael v. Powis, 10 lap, 38 N. Y. 676 ; Sawyer v. Hovey, Beav. 39 ; Sells v. Sells, 1 Dr. & Sm. 8 Allen, 331 ; Edwards's Appeal, 59 42; Fallon v. Eobins, 16 Ir. Ch. 422. Penn. St. 220. (s) Sells V. Sells, 1 Dr. & Sm. 42. 3 Nevius v. Dunlap, 33 N. Y. 676 ; {t) Eaton V. Bennett, 34 Beav. 196 ; Lyman v. United Ins. Co., 17 Johns. Pallon V. Robins, 16 Ir. Ch. 422. 373 ; Schettiger v. Hopple, 8 Grant's (u) Bart-ow V. Barrow, 18 Beav. 532 ; Cas. 54. [59] * 56 ACCIDENT. [CH. IT. 1. Accident is another head of equitable jurisdiction, the usual instance of which is the relief given where a bond * 56 or other * security has been burnt, lost, or accidentally destroyed (x). There is, however, no equity under the head of accident in favor of a man who, having entered into an express or positive covenant to do a certain act, or per- form a particular duty, fails to comply with the stipulation. A man who, by expi'ess covenant, has bound himself to do a par- ticular thing, is bound to do it if he can, and cannot come to the court to supply that provision whicli he has omitted to make for himself. It is immaterial that unforeseen events have oc- curred which impose on him an additional duty or burden, or that he has been prevented by accident from deriving the full benefit of the covenant or contract on his own side. A party to a contract may, if he chooses, guard himself by providing against contingencies. If he neglects to do so, he must put up with a loss, if a loss occurs, for the presumption in equity as well as at law is, that the purpose of the parties was accord- ing to the legal effect of the covenant («/). Thus, if a lessee covenant to keep the demised premises in repair, he will be bound in equity, as well as at law, to rebuild them, notwith- standing any inevitable accident by which they may be destroyed or injured (z). So, also, if a lessee covenants to pay rent dur- ing the term, it must be paid, notwithstanding the premises are burnt down, during the term ; and this is equally true as to the rent, although the lessee has covenanted to repair, except in case of casualty by fire (a). The fact of the premises being insured makes no difference, the tenant has no equity to compel the landlord to expend the insurance money in rebuilding the premises, or to restrain him from suing for the rent * 57 until the premises are rebuilt (6). * So also the lessee (x) Walmsley v. Child, 1 Ves. 341 ; Gregory v. Wilson, 9 Ha. 683, 689, Atkinson v. Leonard, 3 Bro. C. C. 218; infra. Ex pane Greenway, 6 Ves. 81'2; Kemp (z) Bullock v. Dommitt, 6 T. R. 650' V. Pryor, 7 Ves. 249 ; East India Co. v. Leeds v. Cheetham, 1 Sim. 146 • Grea" Boddam, 9 Ves. 464; Mossopu. Eaden, v. Coates, 23 Beav. 33 ; Clark v. Glas"- 16 Ves. 430 ; Macartney v. Graham, 2 gow Assurance Co., 1 Macq. 668 Sim. 285 ; Williams v. Flight, 5 Beav. (a) Holtzapfell v. Baker, 18 Ves. 115 • 41 ; Crosse v. Bedingfield, 12 Sim. 35 ; Leeds v. Cheetham, 1 Sim 146 • Greo-g Cooke V. Darwin, 18 Beav. 60. v. Coates, 23 Beav. 33. See Bayne v (y) Hilher v. Parkmson, 9 L. J. Ch. Walker, 6 Pat. Sc. App. 217 • Poole v 156 ; Phihpps v. Jones, 9 Sim. 519 ; Adams, 33 L. J. Ch. 639. (6) Leeds v. Cheetham, 1 Sim. 146. [60] CH. IT.] ACCOUNT. * 57 of a coal-mine, who has covenanted to pay a certain rent, or to work a certain iiunober of acres annually, and to pay a certain rent for that quantity, cannot have relief on the ground that the mine is nearly exhausted, or that he is pre- vented by accident from working it, except at a ruinous ex- pense (c) . The loss will fall upon the purchaser if the premises are deteriorated by fire, or other accident, after the date, but before the completion of the contract (ci). 2. A court of equity will, in no case, grant a man relief on the ground of accident, where the accident has arisen from his own gross negligence or fault. On this account, a party coming for relief is bound to show that his title to relief is unmixed with angr gross misconduct, or negligence, of himself or his agents (e). SECTION IV.— ACCOUNT. 1. In cases of general account between principal and agent, principal may have account taken in equity. 2. Complicated accounts taken in equity, althongh the form of the account is purely legal. 3. Where subject is merely matter of set-off and capable of proof at law, account will not lie. 4. Jurisdiction entertained where account is so complex as not to be practically taken at law, though there be no reciprocity of receipts and payments. 5. An account stated between the parties and acknowledged, is a defence to bill for an account. 6. Stated account may be impeached. Reasons therefor and practice. 7. Same rule applies to cases of settled accounts. 8. Injunction sometimes granted to restrain an action for a matter of account proper to be taken in equity. 1. Another head of equitable jurisdiction is that of account. If an equitable case be shown by the bill, account may always be had in equity (/). The position which an agent fills to- (c) Philipps V. Jones, 9 Sim. 519 ; (e) Marine Insurance Co. v. Hodg- Meilers v. Duke of Devonshire, 16 son, 7 Cranch (Amer.), 336. Beav. 252; Kidgway v. Sneyd, Kay, (/) East India Co. v. Henchman, 1 627. Ves. Jr. 287 ; Waring «. Manchester, (d) Paine v. Mellor, 6 Ves. 349 ; SheflBeld, and Linoolnsliire Railway Coles V. Trecothick, 9 Ves. 234; Ex Co., 7 Ha. 482; 2 H. & Tw. 239; parte Minor, 11 Ves. 559; Harford v. Walsham v. Stainton, 1 D. J. & S. 678; Furrier, 1 Madd. 532; Akhurst v. Jack- Bliss v. Smith, 34 Beav. 508. son, 1 Sw. 85 ; Eevell v. Hussey, 2 B. & B. 287. [61] *58 ACCOUNT. [CH. IV. wards his employer being one of a fiduciary character, he is bound to keep regular accounts. If he neglects this duty, and is not ready to settle his accounts wlien called upon to do so, his employer has a right to have the accounts taken in equity Qg~). There may, however, be a difiference when there is no general account between principal and agent, but only an agency in a single transaction (Ji). An agent, on the * 58 other hand, cannot * maintain a bill for an account against his principal, except the case be one of mutual accounts, or except there be such a complication of accounts as to render the interference of a court of equity necessary (i). An exception, however, is allowed in the case of a steward, the nature of whose employment is such that money is often paid in confidence without vouchers, embracing a variety of accounts with the tenants, so that it would not be possible to do justice without an account in equity (Jc). The relation of banker and customer does not partake of a fiduciary character, or bear any analogy to that of principal and agent, so that the mere exist- ence of the relation is not a foundation for a bill for an account by the customer (V). 2. The jurisdiction of the court, by way of account, is not limited to cases which involve an equitable element, but ex- tends to cases of complicated accounts, although the form of the account is purely legal, and the items constituting the account are purely legal. The jurisdiction is entertained, not on the ground of the absence of a remedy at law, but because the remedy at law is less complete than the remedy in equity. Whether or not it will interfere is, in each case, a matter for the discretion of the court. If a court of law is competent to deal with the case, the court will not interfere. If, on the other hand, the case is such that a court of law has no adequate means of dealing with the matter, the court will entertain (g) Lord Chedworth v. Edwards, 8 M. & G. 446; Philipps v. Philipps 9 Ves. 46 ; Pearse v. Green, 1 J. & W. Ha. 471 ; Barry v. Stevens, 31 Beav. 135; Mackenzie v. Johnston, 4 Madd. 258; Makepeace v. Rogers 34 L J Ch 373 ; Clarke o. Tipping, 9 Beav. 284 ; 396. ' Hemmings v. Pugh, 4 Giflf. 456 ; Smith (i) Smith v. Leveaux, 2 D. J. & S 1. V. Leveaux, 2 B. J. & S. 1. Comp. (k) Dinwiddie v. Bailey, 6 Ves. 136 • Farebrother v. Welchman, 3 Drew. Allison v. Herring 9 Sim 583 ^^?i, T.T , u T, . „ ^ (') ^°^^y "• ^^1' 1 I'll- 399; 2 H. (h) Navulshaw v. Brownrigg, 2 D. L. 28. [62] . , CH. IT. j ACCOUNT. * 59 jurisdiction (m).^ In determining whether or not it will inter- fere, the coiirt reserves to itself a large discretion, in the exercise of which due regard must be had, not only to the nature of the case, but to the conduct of the parties (n). The Common Law * Procedure Act, 1854, has not * 59 affected the jurisdiction of the court (o). 3. Where the subject is merely a matter of set-off and capa- ble of proof at law, a bill for an account will not lie (p). The right to an account is essentially different from the right to set- off. The right to- account is not, like the riglit to set-off, a right to amalgamate cross demands for the purpose of enabling one action or suit to suffice ; but it assumes that the several de- mands have no independent existence, but have been so con- nected by the original contract or course of dealing that the only thing which either party can claim is the ultimate balance. The only right is that of taking the account. An account is not confined to mere receipts and payments of money, although it ordinarily occurs in that form. But it is applicable, to any dealings which have been treated as equivalent to receipts and payments. An account will lie in respect of reciprocal delivery of goods, provided that in the course of dealing between the parties such deliveries have been treated as items in an account, and not as creating mere cross demands, or it will lie in respect of a claim for work done, and partially paid by advances from time to time, so that a'balance only of the price is ultimately due (§'). Tiiere cannot be an account of debts one way and damages another (r). (m) North Eastern Railway Co. v. Townrow y. Benson, 3 Madd. 203. See Martin, 2 PIi. 764 ; Soutli Eastern Rail- Norris v. Day, 4 Y. & C. 475. way Co. V. Brogden, 8 Mac. & G. 23 : {q) Wells v. Cooper, cited 6 Vcs. Eoley V. Hill, 2 H. L. 37 ; Anderson v. 139 ; 9 Ves, 473 ; O'Connor v. Spaiglit, Noble, 1 Drew. 148 ; Scott v. Corpora- 1 Sch. & Lef. 305 ; Ranger v. Great tion of Liverpool, 3 D. & J. 358 ; Hill "Western Railway Co., 1 Ra. Ca. 1 ; 5 V. South Staffordshire Railway Co., 11 H. L. 91 ; Adams, Doct. Eq. 223. Jur. N. S. 192 ; Bliss v. Smith, 34 Beav. (r) Glennie v. Imri, 3 Y. & C. 436. 508. 1 Chief Justice Marshall says : " In (n) 2 Ph. 762, per Lord Cottenham; all cases in which an action of account Taff Vale Co. v. Nixon, 1 H. L. 122 ; would be the proper remedy at law, and Hill V. Sotith Staffordshire Railway in all cases where a trustee is a party, Co., 11 Jut. N. S. 192 ; Dabbs w. Nugent, the jurisdiction of a court of equity is lb 943. undoubted. It is the appropriate tribu- (o) Crosskey v. European and Amer- nal. But in transactions not of this ican Steam Shipping Co., 1 J. & H. peculiar character, great complexity 108 ; Shepard v. Brown, 4 Giff. 208. ought to exist in the accounts, or some {p) Dinwiddle v. Bailey, 6 Ves. 136 ; difficulty at law should interpose, some [63] * 60 ACCOUNT. [CH. IV. 4. Ill the case of mutual accounts, or accounts involving reciprocity of receipts and payments, or consisting of a series of transactions on one side and of payments on the other, and not merely payments by way of set-off, the jurisdiction of tlie court is exercised in the most ample manner without any limi- tation (s) . But it is not necessary to make out a case of * 60 mutual * accounts. If the account is not merely from the number of its items, but from its nature so complex that it cannot be properly or practically taken at law, jurisdiction will be entertained, although there be no reciprocity of receipts and payments (<). A bill for an account, for instance, will lie as between landlord and tenant, where, from the complication of the items, or the complexity of the title occasioned by the acts of the landlord, the account may be taken more properly in equity than at law Qu).^ If on the other hand the account is simple and the remedy at law free from embarrassment, the necessity for equitable interference does not exist, and jurisdic- tion will not be entertained (?;). If the facts stated in the bill show that no practical difficulty exists in proceeding at law, a mere allegation that the accounts are intricate will not pre- vent a demurrer (a;). The mere fact that the accounts are such as would not be taken in an action at law, but would be sent by a court of law to a reference, is not of itself a reason for a court of equity to entertain jurisdiction («/). discovery should be required, in order C. C. 627. Comp. Aldis v. Eraser, 15 to induce a court of chancery to exer- Beav. 221. cise jurisdiction." Fovvle u. Lawrason, {v) Bliss f. Smith, 34 Beav. 508. 5 Peters, 602. (x) Eoley v. Hill, 2 H. L. 38 ; Bowles (s) Dinwiddle v. Bailey, 6 Ves. 140; v. Orr, 1 Y. & C. 464; Darthez v. Cle- Courtenay v. Godschall, 9 Ves. 473. mens, 6 Beav. 165 ; Frietas v. Dos San- See Philipps V. Phdipps, 9 Ha. 478; tos, 1 Y. & J. 576; Farebrother v. Padwickv. Hurst, 18 Bear. 580; Fluker Welchman, 3 Drew. 122; Padwick v. V. Taylor, 3 Drew. 183. Hurst, 18 Beav. 582. (t) Philipps V. Philipps, 9 Ha. 473 ; (y) Philipps v. Philipps, 9 Ha. 473. Padwick v. Hurst, 18 Beav. 580 ; Fluker See Parebrother v. Welchman, 3 Drew, u. Taylor, 3 Drew. 191 ; Taff Vale Co. 122. Comp. Crosskey W.European and V. Nixon, 1 H. L. Ill ; Ranger v. Great American Steam Shipping Co., 1 J. & Western Railway Co., 5 H. L. 91 ; H. 108. Scott V. Corporation of Liverpool, 3D. i It is held where two tenants in 6 J. 358; Macintosh t. Great Western common of personal property have Railway Co., 8 Sm. & G. 146 ; 11 Jur. used the same in the prosecution of N. S. 681 ; Smith v. Leveaux, 2 D. J. & business, under an agreement as to the S. 1. compensation of one of them, who was (u) O'Connor «. Spaight, 1 Sch. & "to superintend the establishment," Lef. 305 ; Nixon v. Robinson, 2 J. & L. and who survives the other, the admin- 4 ; Kennington v. Houghton, 2 Y. & C. istrator of the deceased tenant in com- [64] CH. IV.] ACCOUNT. * 61 5. An account stated between the parties in which the balance is set forth and acknowledged, may be pleaded or set up as a bar to a bill for account (z). The parties having them- selves disposed of the matter, and struck the balance of their account, the necessity for equitable interference does not exist, for there is no difficulty in proceeding at law (a). An * account stated to be a sufficient defence to a bill for * 61 an account must be in writing, but it is not necessary that it should be signed by the parties, if it can be shown to ' have been acquiesced in by them. The mere delivery of an account without evidence of contemporaneous or subsequent conduct, will not prove it to be a stated account, but an accep- tance implied from circumstances will suffice (5). Between merchants at home an account has been considered as accepted where no objection was made thereto within two or three posts (c). Between merchants in different countries a similar rule prevails, and if any account is transmitted from one to another showing a balance due to himself, and the other keep it two years without objection, the rule is to consider it as allowed (c?). So also accounts of companies laid before shareholders at a general meeting and approved by them are binding (e). 6. A stated account may, however, be impeached either wholly or in part on the ground of fraud, or if important errors are specified and proved, but a general allegation that it is erroneous will not suffice (/). If there be fraud the whole account will be opened, and a new account will be taken mon may maintain a bill in equity to 37 ; Hunter o. Belcher, 2 D. J. & S. compel the survivor to exhibit an ac- 195. See Clements o. ]3owes, 1 Drew, count of the transactions under said 692 ; Daries v. Spurting, Taml. 199 • agreement, and of the manner in which Blagrave v. Kouth, 8 D. M. & G. 620. ' the business was carried on. Field v. (c) Sherman v. Sherman, 2 Vern Craig, 8 Allen, 357. 276. (z) WilUs V. Jernegan, 2 Atk. 252 ; id) Tickel v. Short, 2 Ves. 238. Endo V. Caleham, You. 806. See (e) See Stupart v. Arrowsmith, 3 M'Kellar v. Wallace, 8 Moo. P. C. 378. Sm. & G. 176 ; Kent v. Jackson, 2 D. (a) Dawson v. Dawson, 1 Atk. 1 ; M. & G. 49 ; Ex parte Bignold, 22 Taylor 11. Hayling, 1 Cox, 435; 2 Bro. Beav. 165. C. C. 310; Hirst v. Peirse, 4Pri. 339; (/) Clarke v. Tipping, 9 Beav. 282; Chambers v. Goldwin, 9 Ves. 263 ; Dar- Darthez v. Lee, 2 Y. & C. 5 ; AUfrey v. thez V. Lee, 2 Y. & C. 5. Allfrey, 1 Mao. & G. 87 ; M'KeUar v. (b) Willis V. Jernegan, 2 Atk. 252 ; Wallace, 8 Moo. P. C. 378; Blagrave v. Irvine v. Young, 1 Sim. & St. 333 ; Eouth, 8 D. M. & 6. 620. Att.-Gen. v. Brooksbank, 2 Y. & J. [65] * 62 ACCOUNT. [CH. IV. without reference to that which has been stated (^). If there be no fraud, but errors are alleged and proved, the account will be allowed to stand with liberty to surcharge and falsify (A). This leaves it in full force as a stated account, except so far as it can be impugned by the opposing party. If he shows the omission of a credit which ought to have been allowed * 62 that is a surcharge : * if he shows the insertion of an improper charge, that is a falsification (i). Error in law is a suf&cient foundation for a decree to surcharge and falsify 0'). 7. The same considerations apply a fortiori to the case of settled g,ccounts. A settled account is conclusive between the parties, and cannot be opened unless there be fraud (^). If there be merely error, the rule is only to give liberty to sur- charge and falsify (Z). In regard to acquiescence in stated accounts, although it amounts to an admission of their correct- ness, it by no means .establishes the fact that they have been settled, even although the acquiescence has been for some con- siderable time. There must be other ingredients in the case to justify -the conclusion of a settlement (m). A man against whom an action has been brought for a mat- ter of account, or for that which is the result of an account, has a right on making out a proper case to ask a court of equity to have the account there taken and to give him an injunction to restrain the action until the account has been taken (%). But the court will not, on the mere ground that it could properly and beneficially have entertained jurisdiction had it been appealed to in the first instance, be always willing ((/) Wharton v. May, 5 Ves. 27, Coleman v. Mellersh, 2 Mac. & G. 48 ; M'Kellar v. Wallace, 8 Moo. P. 309 ; Hunter v. Belcher, 2 D. J. & S. C. 378 ; Coleman v. Mellersh, 2 Mac. & 195. G. 309 ; Blagrave v. Routh, 8 D. M. & (l) Vernon v. Vawdry, 2 Atk. 119 ; G. 620. Chambers v. Goldwin, 9 Ves. 265; Drew (A) Davies v. Spurting, Taml. 199, 1 v. Power, 1 Sch. & Lef. 192; Coleman E. & M. 64 ; Lawless v. Mansfield, 1 v. Mellersh, 2 Mac. & G. 309 ; Sellar v. Dr. & War. 557 ; Blagrave v. Eouth, 8 Griffin, 32 Bear. 545. D. M. & G. 620. (m) Lord Clancarty v. Latouche, 1 B. (i) Pitti). Cholmondeley, 2 Ves.565; & B. 428; Irvine v. Young, 1 Sim. & Millar v. Craig, 6 Beav. 435; Jones v. St. 333 ; -Hunter v. Belcher, 2 D. J. & Moffett, 3 J. & L. 636. S. 194. See Parkinson v. Hanbury, *. (J) Roberts v. Kufiln, 2 Atk. 112, 450. Parkinson v. Hanbury, reported (/c) Brownell v. Brownell, 2 Bro. C. on appeal, 2 L. R. App. Ca. 1. C. 62; Taylor u. Hayling, *. 310; («) Anderson i\ Noble, 1 Drew. 143. Chambers v. Goldwin, 9 Ves. 265; [66] CH. IV.] SET-OFF. * 63 to withdraw the proceedings by injunction from the jurisdiction of a court of law. If a court of law be first set in motion in the matter, the court will not be willing to interfere, although the matter is one which could be more conveniently disposed of in equity (o) , unless the account is of such a nature that justice does not seem likely to be done in the matter at law (p) . But * if the case made out is such that it cannot * 63 in the opinion of the court be adequately tried at law, the / court will interpose and withdraw the matter from the consid- eration of a court of law (§'). It is not necessarily a fatal objection to a bill for an account and a motion to restrain an action that the bill is filed by some only of the defendants at law (r). Nor is it necessary that the plaintifi" should submit to account («). SECTION v.— EQXnTABLB SBT-OFP. 1. Set-off is a head of equitable jurisdiction. 2. Set-off an equitable doctrine. Character of it. 3. But courts of equity follow the law in matters of set-off unless there is some inter- vening equity going beyond the statute. 4. To warrant set-off the debts must be mutual, due in same right, and liquidated. 5. Neither future liability ^or cross demand, accrued or acquired subsequently to the establishment at law of the demand, can be set up by way of set-off. 6. Agreements, whether express or implied, may confer the right of equitable sets-off. Insolvency of one of parties sufficient ground for equitable set-off. 7. Assignee of chose in action takes subject to equitable right of set-off. 1. Set-off is another head of equitable jurisdiction. The right of set-off is that right, which exists between two persons, each of whom, under an independent contract, owes an ascer- tained amount to the other, to set off their respective debts, by way of mutual deduction, so that a person to whom the larger debt is due shall recover the residue only after such deduction. (o) Norris v. Day, 4 Y. & C. 475 ; v. Brogden, 3 Mac. & G. 23 ; Crosskey South Eastern Railway Co. v. Brogden, v. European and American Steam Ship- 3 Mac. & G. 23. ping Co., 1 .1. & H. 108 ; Dabbs v. (p) lb. ; North Eastern Railway Co. Nugent, 11 Jur. N. S. 943. V. Martin, 2 Ph. 762 ; Dabbs v. Nugent, (r) Crosskey v. European and Amer- 11 Jur. N. S. 943. ican Steam Co., IJ. & H. 108. {g) O'Connor v. Spaight, 1 Sch. & (s) Clarke v. Tipping, 4 Beav. Lef. 308 ; O'Mahony v. Dickson, 2 Sch. 588. & Lef. 400 ; South Eastern Railway Co. [67] * ()4 SET-OFF. [CH. IV. At common law there was no right of set-off (0- If the party suing for a debt were himself a debtor to the defendant, he might, nevertheless, recover in his action, and the defendant was driven to a cross-action for his own claim. To obviate this inconvenience, it was enacted, that where there are mutual debts between plaintiff and defendant, or if either party sue or be sued, as executor or administrator, where there are mutual debts as between testator, or intestate, and either party, one may be set off against the other (u), and in the court of bankruptcy a still wider remedy is given, and the right of set- off is extended to cases where mutual credit has been given by the bankrupt and any other person, although there may not be actual debts on either side (x). * 64 * 2. Courts of equity were in possession of the doc- trine of set-off long before the right of set-off was intro- duced into the statute-law, and it seems probable that the statutory rights have been founded on the equitable rules Qy'). The equitable doctrine of set-off is founded on the doctrine of compensation of the Roman law (z), but the compensation of the civil law is not in all respects the same as the set-off of our own law. A set-off does not, as compensation in the civil law, operate of course by mere operation of law as an extinguish- ment of one debt by another, but is a mere right which a man may avail himself of, or not, as he pleases. A set-off is a mere matter of defence. A man is not bound to make use of it. He may, if he pleases, satisfy the whole of his debt, and then resort to a cross-action to recover the moneys due to him (a). 3. Courts of equity now follow the law in matters of set-off unless there is some intervening equity going beyond the statute (6). If the cross-demands are of legal cognizance, the (() Wallis V. Bastard, 4 D. M. & G. man v. Lomas, 9 Ha. 112, per L. J. 249, 256. Turner; WaUis v. Bastard, 4 D. M. & (it) 2 Geo. 2, c. 22, 8 Geo. 2, c. 24. G. 249, 256. (x) 12 & 13 Vict. c. 106, s. 171 ; (z) Barker v. Braham, 2 W. Bl. 869 ; Smith, Merc. Law, 649 ; Rose v. Hart, Freeman v. Lomas, 9 Ha. 112. 1 Smith, L. C. 251-269. See as to (a) Laing u. Chatham, 1 Camp. 252; set-off under the Companies' Act, 1862 ; Wallis v. Bastard, 4 D. M. & G. 249, Smith and Fleming's case, 1 L. K. 256. Ch. App. 538 ; Grissell's case, ib. 628. (6) Medlicott v. Bowes, 1 Ves. 207 ; (y) Ex paHe Stephens, 11 Tes. 27 ; Ex parte Stephens, 11 Ves. 27 ; Town- Ex parte Blagden, 19 Ves. 467 ; Free- row v. Benson, 8 Madd. 207. [68] CH. IV.] SET-OFF. * 65 right of set-oif is also legal (c). Unless one of the demands involves an equitable .element, or sets up some equitable ground for impeaching the legal title to the other demand, or unless both demands be of equitable cognizance, there is no set-off in equity. The mere existence of cross-demands does not create an equity. But if one demand is legal, and the other equita- ble, there is set-off in equity if there would be set-off at law had both demands been legal. Equity, in other words, looks to the beneficial ownership of the debt (cZ). A demand, for instance, * which a man has in the name of his trustee, * 65 against another, will be set off against a demand which the latter has against him (e). So, also, the assignee of a legal debt, not assignable at law, may come into equity to have the benefit of a set-off (/). 4. To warrant set-off there must be mutual debts. The debts must be due in the same right, and must be clearly ascer- tained, or liquidated. Cross-demands existing in different rights, cannot, except under very special circumstances, be set off against each other in equity (^). The liability to pay the one demand, and the right to receive the money in respect of the other demand, must be, at the same time, vested in the same person Qi), the principle being, that one man's money shall not be applied to pay off another man's debt (i). A claim accordingly, against a man in a representative capacity, cannot be set off in a suit brought in an individual capacity. The demand in respect of which set-off is sought, must be due to and from the same person in the same capacity. An execu- tor cannot set off, against the claim for a legacy, a debt due to (c) Dinwiddle v. Bailey, 6 Ves. 139 ; (j) Clark v. Cort, Cr. & Ph. 154. Townrow v. Benson, 3 Madd. 207 ; Har- See Cavendish v. Geaves, 24 Beav, rey v. Wood, 5 Madd. 459. 163. (d) Clark v. Cort, Cr. & Ph. 154 ; (.9) Chapman v. Derby, 2 Vern. 117 ; Eawson v. Samuel, ih. 179 ; Dodd v. Whitaker v. Eush, Amb. 407 ; Bishop Lydall, 1 Ha. 333 ; Preeman v. Lomas, v. Church, 3 Atk. 691 ; Medlicott u. 9 Ha. 109 ; Smith v. Parkes, 16 Beav. Bowes, 1 Ves. 208 ; Jones v. Mossop, 3 115 ; Hunt v. Jessell, 18 Beav. 100 ; Ha. 568 ; Gale v. Luttrell, 1 .Y. & J. Agra and Masterman's Bank V.Hoffman, 180; Lambarde v. Older, 17 Beav. 34 L. J. Ch. 285. See Bousfield v. 542 ; Preeman v. Lotaas, 9 Ha. 112. Lawford, 1 D. J. & S. 459. See Baldwin v. Baldwin, 3 Ir. Ch. 388. • (e) Cochrane v. Green, 9 C. B. N. S. (A) Cherry v. Boultbee, 4 M. & C. 448. See Cavendish v. Geaves, 24 442. Beav. 163. Comp. Pratt v. Keith, 33 (i) Jones u. Mossop, 3 Ha. 568, 574. L. J. Ch. 580. [69] *66 SET-OFF. [CH. IT. him, personally, from the legatee (k). Nor can a man set off what is due to him as executor against a debt due from him- self (0- Nor can a private debt due from a trustee be set off against a debt owing to him in his character of trustee (m). Nor can the creditor of an intestate, who has purchased part of the intestate's goods from the administrator, set off the amount against a debt due to him from the intestate *66 at his decease (w). Nor *can a joint debt be set off against a separate debt, or a separate debt against a joint debt, as where there is a separate debt due to or from a partner and a joint debt due from or to the partnership (o). 5. The cross demand in respect of which the claim to set off is made must be an ascertained sum (^). A future liability cannot be set off against a sum actually due (q'). Nor can a cross-demand accrued or acquired subsequently to the estab- lishment at law of the demand, be set up by way of set-off (r). Where a tenant had a judgment at law against his landlord for excessive distress, and the landlord had obtained damages awarded to him under an arbitration clause in the lease for a larger sum, the court would not restrain the tenant from taking -proceedings on the judgment against the landlord (s). The mere pendency of an account out of which a claim may arise, will not give the right of set-off in equity against an ascertained sum. Where the application in equity is for an account of transactions under a contract, and the action at law is for damages for the breach of it, there is no set-off. The object and the subject-matter being totally distinct, the fact that the agreement has been the origin of both does not form any bond of union for the purpose of supporting an injunction (i). So, {k) Whitaker v. Rush, Amb. 407 ; Jur. 469 ; Kawson v. Samuel, Cr. & Medlicott v. Bowes, 1 Ves. 207 ; Free- Ph. 178 ; Jenner v. Morris, 11 "W. E. man v. Lomas, 9 Ha. 109. 943. {I) Bishop V. Cliurcli, 3 Atli. 691. (5) Jeffreys w. Agra and Masterman's (m) Pratt v. Keith, 33 L. J. Ch. 530. Bank, 2 L. R. Bq. 674. (n) Lambarde v. Older, 17 Beav. (r) Whyte v. O'Brien, 1 Sim. & St. 542. Comp. Stephens v. Venables, 30 651. Beav. 625. See Smee v. Baines, 29 (s) Maw v. TJlyatt, 31 L. J. Ch. 83. Beav. 661. Comp. Hamp v. Jones, 9 L. J. Ch. N. (0) Addis V. Knight, 2 Mer. 122 ; Ex S. 258. parte Ross, Buck, 125 ; Watts v. Chris- {t) Eawson v. Samuel, Cr. &. Ph. 178 ; tie, 11 Beav. 546. Dodd v. Lydall, 1 Ha. 337, 3 Mac. & G. (p) Beasley v. D'Arcy, 2 Sch.& Lef. 26, per Lord Truro. See Holford v. 403, n. ; Wartnaby v. Shuttleworth, 1 Wortheman, 2 "W. R. 51. [70] CH., IV.J SET-OFF. * 67 also, where a plaintiff brought an action at law against a defendant to recover moneys alleged to be due under a con- tract, and defendant had a verdict in the action with costs, the court would not restrain him from suing out execution on the judgment, notwithstanding a bill had been filed by the plain- tiff for an account of transactions under the same con- tract (m). Damages * cannot, except under special cir- * 67 cumstances, be set off against an ascertained claim (t^). . The fact that goods as delivered may be inferior in quality or quantity to the goods as ordered, does not give a right to set-off in equity (x). 6. Agreements, however, whether express or implied, may confer the right of equitable set-off, and slight circumstances may be sufficient to warrant the court in presuming such an agreement («/). Thus the right was admitted in Downman V. Matthews (g), upon the course of dealing (a) ; in Jeffs v. Wood (6), upon the fact of the legatee having omitted to credit the executor with the goods supplied ; and in Jones v. Mossop (c), iipon the objections as to the demand having been removed by the answer (c^). So also as between joint and separate debts an eqaity may arise to justify sei>off where there are circumstances of fraud (e), or where the party seeking relief is only a surety for a debt really separate (/), or where there are a series of transactions in which joint credit is given with reference to the separate debt (^). But although slight circumstances may be sufficient to warrant the court in pre- suming an agreement that one demand should be set off against another, there must be some evidence to warrant the court in presuming that there was such an agreement (A). In some («) Ksher v. Baldwin, 11 Ha. 352; (a) See - Curson v. African Co., 1 Phipps V. Child, 3 Drew. 713. See Vern. 121 ; Peters v. Soame, 2 Vern. Whallev v. Eamage, 8 L. T. N. S. 428 ; Wilson v. Gabriel, 4 B. & S. 243. 499. (b) 2 P. Wms. 128. (v) Eawson v. Samuel, Or. & Ph. (c) 3 Ha. 568. 179; Stimson v. Hall, 1 H. & N. ((?) 9 Ha. 114, joer Turner, L. J. See 831 ; Atterbury v. Jarvie, 2 H. & N. Smee v. Baines, 29 Beav. 661. 114. (e) Ex parte Stephens, 11 Ves. 24. {x) Glennie v. Imri, 3 Y. & C. 440. ( f) Ex parte Hanson, 12 Yes. 346, S. Freeman v. Lomas, 9 Ha. 109, 112 ; ig) VuUiamy v. Noble, 3 Mer. 618. "WalUs V. Bastard, 4 D. M. & G. 257. (A) Baldwin v. Baldwm, 3 Ir. Ch. Comp. Hunt v. Jessell, 18 Beav. 100. 388. (2) Preo. Ch. 580. [71] * 68 SET-OFF. [CH. IV. cases where there is a clear natural connection between the claim and the cross-claim, and both originate from one trans- action, a court of equity will interfere to prevent the one party from enforcing his claim without allowing the claim of the other, I although one of the claims may be unliquidated (i). * 68 * Where a tenant owed a landlord rent, and the latter had committed a trespass on the land which rendered it of less value, and prevented the tenant to a certain extent from getting rent out of it, a claim for damage was allowed to be set off against the claim for rent (A;). So, also, a client who had pledged an estate to his solicitor as a security for costs was held entitled on a bill for foreclosure against him to have made out a case of equitable set-off, by the allegation that the costs had been occasioned by the negligence or. want of skill of the solicitor (/!). So also if an agent having a title to an estate should allow his principal to expend money upon the estate without any notice of that title, he will not be permitted after a recovery at law in ejectment to maintain an action at law against the principal for mesne profits, but the coiirt will require that to the extent of the improvements there shall be set-off allowed to the principal against the mesne profits (to). So also a man who advances money to a deserted wife to enable her to provide herself with necessaries, may set ofif such sum against a debt due by him to the husband (n). So also the insolvency of one of the parties is a sufficient ground for a court of equity to allow an equitable set-off (o). 7. The assignee of a chose in action takes subject to any equitable right of set-off, existing as against the assignor at the date of or before notice of the assignment to the person in whose hands the property in question lies (|?). (i) See O'Mahony v. Dickson, 2 (m) Lord Cawdor w. Lewis, lY. & C. Sch. & Lef. 408 ; South Eastern Rail- 427, 433. See Monypenny v. Bristow, way Co. V. Brogden, 3 Mac. & G. 25, 2 R. & M. 117. per Lord Truro; Stimson v. Hall, 1 H. (n) Jenner v. Morris, 3 D. F. & J. & N. 831 ; Atterbury v. Jarvie, 2 H. & 45. N. 114; Wilson v. Gabriel, 4 B. & S. (o) Chapman v. Derby, 2 Vern. 117; 243. Hawkins v. Freeman, 2 Eq. Ca. Ab. 10 ; (k) Beasley v. D'Arcy, 2 Sch. & Lef. Lord Lanesborough v. Jones, 1 P. 403, n. See Hamp v. Jones, 9 L. J. Ch. W. 325 ; Lindsay v. Jackson, 2 Paige N. S. 258. Comp. Townrow v. Benson, ( Amer. ), 582; Bradley v. Angel, 3 Comst. 3 Madd. 203 ; Pratt v. Keith, 33 L. J. (Amer.) 475. Ch. 530. (p) Cavendish v. Geaves, 24 Beav. (l) Piggott V. Williams, 6 Madd. 95. 168 ; Ashworth's case, 10 W. K. 771 ; [72] CH. IV.J MARSHALLING SECURITIES. * 69 * SECTION VI.— MARSHALLING SECITKITIES. »69 1. Where a person has two funds to resort to, and another person has some rights in common with him in one of the funds, but no right in the other, the latter will be restrained from proceeding against that ftind which is alone liable to his debt until the other is exhausted. 1. Where a person has two funds to resort to, and an- other person has some rights in common with him on one of the funds, but no right on the other, the latter has a right to restrain the former from proceeding against that fund which is alone liable to his debt, until the other be ex- hausted (5'). The doctrine was much discussed in the cases respecting the estates of the American loyalists (r), which, being confiscated, subject to their debts, it was contended that a creditor ought to be restrained from' pursuing the debtor per- sonally here, till he had applied to make that property available to the payment of the debt. In several of the cases upon the subject. Lord Thurlow, Lord Kenyon, and Lord Rosslyn, ex- pressed decided opinions in favor of the relief so prayed, upon the principle that if it appeared that there was in the hands of the creditor either possession of the estate in fact, or the clear means of effecting that possession, he ought to be called on so to do ; or at least the court should interpose, the creditor not having the power of assigning to the debtor those means which he had of affecting the property. In the last of these cases, the bill was dismissed upon the particular circumstances, as it did not appear that the creditor had the means of making his demand effectual against the fund arising from confiscation (s). Lord Eldon, however ,^xpressed his dissent from the principles of these opinions : his lordship thought that as it could not be contended that under such circumstances the personal liability of the debtor is taken away, so it could not be law that the remedies resulting out of that liability should be restrained by Stephens v. Venables, 30 Beav. 625 ; Wright v. Nutt, 1 H. B. 186, 3 Bro. C. Webster v. Webster, 31 Beav. 393 ; C. 826 ; Kempe v. AntiU, 2 Bro. C. C. Wilson V. Gabriel, 4 B. & S. 243 ; 11 ; Peters v. Erying, 3 Bro. C. C. 52 ; Jeffryes w. Agra and Masterman's Bank, Foiliot«. Ogden, 1 H. B. 123, in error, 2 L. R. Eq. 674. 3 T. R. 726, and afterwards in the (?) Lanoy v. Duke of Athol, 2 Atk. House of Lords, 4 Bro. P. C. ed. Toml. 446 ; Aldrich v. Cooper, 8 Ves. 388. Ill ; Dudley v. FolUot, ib. 584. (r) Holditch v. Mist, 1 P. Wms. 694 ; (s) Wright v. Simpson, 6 Ves. 714. [73] * 70 SUKBTYSHIP. [CH. IV. confining the remedies to particular funds, or by confining them altogether as to the person, till the creditor had recourse, not to all the funds of the debtor, but to some of his * 70 funds, which funds in the original constitution * of the debt, and the transaction forming the relation of debtor and creditor, the debtor did not propose, nor the creditor receive, as the funds to be charged by the contract ; that con- sidering it as a pledge, if the effect of the contract was that he should have all the remedies belonging to the nature of a pledge, and also personal responsibility, it was questionable whether the revolution would have operated to drive the credi- tor to the pledge, and compel him to give up the other remedy at the instance of the debtor ; but that the difficulty was much enhanced when the pledge was not given to' the creditor by the contract, but thrown to him by an act not his own. SECTION Vn. — SURETYSHIP. 1. Sureties discHarged in equity are entitled to injunction against creditor from pro- ceeding at law. 2. The liability of a surety may not be extended beyond the terms of his obligation. 3. Parties to accommodation bills are in relation of principal and surety. 4. Right of surety to satisfy obligation by which he is bound, and proceed at once against principal debtor. 5. What agreements to give time to debtor will discharge surety. 6. Surety not discharged if agreement reserves rights of surety to bring suit., 7. How this reservation should be made. 8. Release of debtor operates as discharge of the surety. 9. Covenant not to sue not a release so as to discharge surety. 10. Taking further security, unless in lieu of original security, will not discharge surety. 11. Assignment of debt does not discharge surety. 12. The creditor, in absence of special agreement, is not bound to act with diligence against the principal debtor. 13. Surety cannot put an end to his liability. li. Creditor not bound to proceed agamst the debtor before proceeding against the surety. 15. Right of the surety to the benefit of the securities in the hands of the creditor. 16. Notice of the existence of the relation of principal and surety between the debtors is binding in equity on the creditor. 1. Sureties who are discharged in equity from their liabilities under instruments of suretyship, are entitled to the assistance [74] CH. IV.] SURETYSHIP. * 71 of a court of equity in restraining the creditor from proceeding against them at law (t). The adoption by courts of law of the equitable doctrines as to the discharge of sureties, does not affect the jurisdiction of the court (u). 2. The liability of a surety may not be extended beyond the terms of his obligation. To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, but no further (i>). The creditor, or obligee, may not, without the assent of the surety, enter into any valid and binding agreement with the debtor, which varies materially the situation, or enlarges the risk of the surety (a;), or affects sub- stantially his rights and remedies against the debtor («/). If he enters into any such agreement, or by the omission of a duty, * or something which he has engaged to per- * 71 form, and which formed a material inducement to the surety on entering into the obligation, increases the risk of the surety, the surety is discharged (3). The surety has a right to insist upon a literal performance of the engagement to which he has become a party, and to say that no obligation to which he has not given his assent, shall be forced on him (a). It is immaterial that he may sustain no injury by a change in the instrument, or even that it may be for his benefit. He has a right to stand on the very terms of his obligation, and if he does not assent to any variation of it, and a variation be made, it is fatal (&). If the engagement is altered in a single line, no matter whether it be altered for the benefit of the surety, or whether the alteration be innocently made, tlie surety has a right to say the contract is no longer that for which he engaged {t) Hawkshaw v. Parkins, 2 Sw. 544 ; of Portsea Union v. Whillier, 2 EI. & Samuel v. Howarth, 3 Mer. 272 ; Allan El. 765. V. Inman, 7 Jur. 433 ; Small v. Currie, (y) Rees v. Berrington, 2 Ves. Jr. 5 D. M. & G. 141. 540 ; Mayhew v. Crickett, 2 Sw. 185 ; (u) lb. M'Taggart v. Watson, 3 CI. & Mn. 525, [v) Miller v. Stewart, 9 Wheat. 10 Bligh, N. S. 618. (Amer.) 703; Bonser v. Cox, 13 L. J. (x) Watts v Shuttleworth, 5H. & N. Ch. 260 ; Evans v. Bremridge, 8 D. M. 235 ; Watson v. Alcock, 4 D. M. & G. 6 G. 100, 2 K. & J. 174. 242 ; Lawrence v. Walmsley, 12 C. B. Ix) Eyre v. Bartrop, 3 Madd. 221 ; N. S. 799. Owen V. Homan; 3 Mac. & G. 378; (o) Whitcheri;. HaU, 6 B. & C. 269; Newton v. Charlton, 10 Ha. 649 ; Small Bonser v. Cox, 13 L. J. Ch. 260 ; Calvert V. Currie, 5 D. M. & G. 141 ; Bonar v. v. London Docks Co., 2 Keen, 638 ; Macdonald, 3 H. L. 226; Pooley v. Newton w. Charlton, 10 Ha. 648; Blest Harradine, 7 E. & B. 442 ; Guardians v. Brown, 8 Jur. N. S. 602. (6) Samuel v. Howarth, 3 Mer. 272. [76] * 72 SURETYSHIP. [CH. IV. to be surety, and he is entitled to be relieved from the engage- ment (c). But where a man enters into a bond as surety for the performance by another of two things which are separate and distinct, a subsequent alteration of the contract as to one of them, without the assent of the surety, does not release the surety from his engagement as to the other ((^).^ In cases, also, where a man becomes surety to a bond for the due per- formance of his duties by another, and new duties are after- wards imposed on the latter, a distinction is to be observed between new duties which only affect the surety indirectly by increasing the temptations of the principal debtor to be dis- honest, and new duties, for the due performance of which the surety himself, under his bond, would be liable, if the same continued valid (e). 3. Parties to an accommodation bill stand to one another in the relation of principal and surety (/). * 72 * 4. A surety has the right, at any time, to satisfy the obligations by which he is bound, and upon satisfy- ing it to have immediate recourse at law against the principal debtor in the name of the creditor or obligee, or to come into a court of equity to compel the creditor or obligee to take pro- (c) Blest V. Brown, 8 Jur. N. S. 603, The questions involred in this case are ■per Lord Westbury. further discussed hy Judge Redfield in (d) Harrison u. Seymour, 1 L. E. C. a note to the same, 3 Amer. Law Reg. P. 519. N. S. 402, who thinks that too many (e) Skillett v. Fletcher, 1 L. R. C. P. of the American cases, in striving to 217. Comp. Bonar v. Macdonald, 3 H. require good faith and diligence of the L. 226. obligor or promisor,haTe quite too much (/) Bailey V. Edwards, 4B. &S. 761 ; overlooked the corresponding obliga- Ewin V. Lancaster, 6 B. & S. 571. tions on the part of the obligee, and 1 In Seely v. People, 27 111. 173, it is he sees no good reasons why the held, that where aparty executes a bond obligee, who, in accepting the bond, as surety with another, whose name trusts to the representations of the appears to the bond, but which name principal obligor as to the execution has been forged, he will not be liable, of the instrument by the others, who This case, and the principles governing are known to stand as mere sureties, such cases are discussed, by Judge should be any more entitled to screen Eedfleld in 2 Amer. Law Reg. N. S. himself from those representations prov- 344 ; and in York County M. F. Ins. Co. ing false, than should the obligor. The V. Brooks, 51 Maine, 506, it is held, true rule in each case, he concludes, that where a surety to a bond signs seems to be that each party may stand upon the assurance that the principal upon the facts of the case unless he ■wUl also procure two other persons, has been guilty of fraudulent miscon- specifled and known to such surety, to diict. See also Choiiteau v. Suydam, sign the bond before he delivers the 21 N. Y. 179 ; Passumpsic Bank v. Goss, same, which he fails to do, but this is 31 Vt. 315, and Dixon v. Dixon, ib. 450 ; ■wholly unknown to the obligee at the Smith v. United States, 2 Wallace, 219. time he accepts the bond, such surety The authorities are largely collected in is bound to perform the obligation. McCramer v. Thompson,, Iowa. [76] CH. IV.] SURETYSHIP. * 73 ceedings at law against the principal debtor. If the creditor or obligee, without the consent of the surety, enters into any binding agreement with the debtor, whereby the time for the payment of the debt is enlarged, the surety is discharged from the obligation, for the creditor or obligee, by disabling himself from having immediate recourse against the principal debtor at any time at the option of the surety, has deprived the surety of the equity which he has a right to demand, and which the rela- tion between the surety and the debtor requires (g-). The surety is discharged, if time be given to a debtor by a valid agreement which ties up the hands of the creditor, though it be for a single day. The principle is the same whether the time be long or short. The creditor must be in such a situa- tion that when the surety comes to be substituted in his place by paying the debt, he may have an immediate right of action against the principal debtor (A). The creditor or obligee has no right to give time to the principal debtor, though it be clearly for the benefit of the surety. The surety has alone the right to determine whether or not it is for his benefit (z). 5. An agreement, however, between the creditor and the debtor, extending the time of payment, will not discharge the surety, unless it be founded on a sufficient consideration, and unless it be an agreement which the debtor can enforce against the creditor (A:). Nor will the surety be discharged, if the agreement * giving time be with a stranger to the * 73 original instrument, and not with the debtor (l). Nor will an agreement giving time discharge the surety, if the rights and remedies of the surety against the principal debtor are, notwithstanding the arrangement, not affected (m), and still less if they are, in fact, accelerated (n) by the agree- (g) Beest). Berrington,2 Ves. Jr.540; (i) Samuel v. Howarth, 3 Mer. 272; Wright V. Simpson, 6 Ves. 714, 734 ; Calvert v. London Docks Co., 2 Keen, Boultbeew. Stubbs, 18 Ves. 20 ; Oakeley 638. V. Pasheller, 4 CI. & Fin. 207 ; MeTaggart (it) Heath v. Key, 1 Y. & J. 434 ; Blake V. Watson, 3 CI. & Fin. 525 ; Newton v. v. White, 1 Y. & C. 420 ; Tucker v. Chorlton, 10 Ha. 649 ; Small "• Carrie, Laing, 2 K. & J. 745. 5 D. M. & G. 141 ; Strong v. Foster, 17 - (l) Frazer v. Jordan, 8 E. & B. 303. C. B. 201; Pooley v. Harradine, 7 E. & (m) Prendergast v. Devey, 6 Madd. B. 442; Bailey v. Edwards, 4 B. & S. 124; Scaler v. Mayor, 19 C. B. N. S. 761. 76. (A) Tucker v. Laing, 2 K. & J. 745, {n) Hulme v. Coles, 2 Sim. 12. [77] *74 SURETYSHIP. [CH. IV. ment (o). Nor is a surety discharged when the indulgence is granted to the principal debtor, after final judgment signed, or a decree obtained against the surety (^), or against the prin- cipal debtor (q}. 6. Nor will the surety be discharged, if in the agreement giving time there is an express and unqualified reservation by the creditor of his rights and remedies against the surety, or if the agreement is so worded as to show that it was intended only to apply to suits for the benefit of the creditor, and to except from its operation suits at the instance of the surety, and on his behalf, for no alteration in the position of the surety is produced (r). But if the creditor has so bound him- self that he could not, without a breach of faith and contract, sue the debtor, or if the case is such that if the surety should call on him to sue, he would be bound to refuse, there is a dis- charge, although there may be an express proviso in the agree- ment, that in the event of the proposal not being carried out fully into effect, the surety should be liable as if the deed had not been made (s). The reservation by the creditor of his rights against the surety will not be held to be abandoned, unless a clear and positive intention to abandon it be proved (t). 7. If time be given by deed, the reservation of the right to proceed against the surety should appear on the face of the instrument itself (u), and should be clearly and unequiv- * 74 ocally * expressed (a;). In the case of instruments not under seal, it may be proved by parol evidence (y). The absence, however, of the reservation will not destroy any independent equity which may subsist between the parties (a). 8. If the creditor release or compound with the debtor with- out the concurrence of the surety, the surety is discharged, (o) See Whitfield v. Hodges, 1 M. & (s) Bailey v. Edwards, 4 B. & S. W. 679 ; Bower v. Tierman, 3 Denio 761. (Amer.), 378. (t) Close u. Close, 4 D. M. & G. (p) Jenkins v. Robertson, 2 Drew. 176. 351 ; Bray v. Manson, 8 M. & W. (u) Ex parte Glendinning, Buck, 668. 517. (?) Pole V. Pord, 2 Chitt. 125. (x) Boultbee v. Stubbs, 18 Ves. 20. (r) Boultbee v. Stubbs, 18 Ves. 20; y) Wyke v. Rogers, 1 D. M. & G. Webb V. Hewitt, 3 K. & J. 438 ; Davies 408. V. Stainbank, 6 D. M. & G. 689 ; Owen {z) Ex parte Harvey, 4 D. M. & G. V. Homan, 4 H. L. 997. 881. See Atkins v. Revel, 1 D. F. & [78] J. 365. CH. IV.J SUEETySHIP. * 75 although he may have acted under a mistake, or for the benefit of the surety (a). But there is no discharge, if the surety has expressly agreed to continue liable, notwithstanding the credi- tor may enter into a composition with the principal debtor (6). The partner of a firm may release or compound with a debtor, so as to bind the firm, and discharge a surety both at law and in equity (c). A surety, however, who has by his conduct converted himself in relation to the debt for which he was surety, into a principal debtor, will lose the benefit of the doc- trine that a release given to the principal debtor will release the surety (rf). If an actual release be given for the debt, which is effectual and valid, either at law (e) or in equity (/), the creditor cannot reserve his rights against the surety, for the debt is gone. A surety will not be discharged by the creditor signing the certificate of the bankrupt debtor, after proving the ■ debt, although the surety may have given him notice not to sign it (^) ; but the surety will be discharged, if the conduct of the creditor be such as to deprive him of the benefit of proof against the estate of the bankrupt Qi). 9. A covenant not to sue does not operate as a release so as to *discharge a surety (i). A voluntary declara- * 75 tion by a creditor that he intends to release his debtor from his debt, though not amounting to a release at law, may, nevertheless, be held in equity to be a representation which the creditor is bound to make good (Jc). 10. The taking of further security from the debtor will not, unless it be in lieu of the original security, have the effect of discharging the surety (J) : nor will the surety be discharged. (a) Ex parte Smith, 3 Bro. C. C. 1 ; 128. Comp. Price u. Barker, 4 E. & B. Ex parte Wilson, 11 Ves. 410 ; Ex parte 760. Glendinning, Buck, 517 ; Bowmaker v. (/) Webb v. Hewitt, 3 K. & J. 438. Moore, 7 Price, 223. See Lewis v. See Taylor v. Manners, 1 L. R. Ch. Ap. Jones, 4 B. & C. 506. 48. (b) Union Bank of Manchester ». (g) Browne v. Carr, 2 Kuss. 600. Beech, 3 H. & C. 672. See Ratoliffe v. Gunson, 6 Madd. (c) Hawkshaw o. Parkins, 2 Swanst. 193. 539. ih) Pledge v. Buss, John. 666. (d) Hall V. Hutchons, 3 M. & K. \i) Willis v. De Castro, 4 C. B. N. S' 426; Eeade v. Lowndes, 23 Beav. 216. 361. See Jones v. Beach, 2 D. M. & (k) Yeomans v. Williams, 1 L. E. G. 886. Eq. 184. ■ (c) Nicholson v. ReviU, 4 A. & E. (I) Eyre v. Everett, 2 Russ. 381 ; 675 ; Kearsley •;. Cole, 16 M. & W. Gordon v. Calvert, 4 Kuss. 581 ; Newton [79] *76 SURETYSHIP. [CH. IV. if there is a general understanding between the parties^ that the giving additional security shall not affect the original security (m). But if the additional or further security be in lieu of the original security (w), or if the original security be merged in the additional security (o), the surety will be dis- charged. There is, however, no merger, if the additional or further security is for a different sum, payable at a different time and with different interest (p). 11. The creditor may assign the debt and all the securities for payment : the right of the assignee against the surety is not destroyed, because the fact of the assignment has not beeii communicated to him. The surety is not entitled to be in- formed who his creditor from time to time may be. The assignee takes subject to all the equities which attach to the creditor, at the same time that he acquires all the rights (g'). 12. The rule is the same both at law and in equity, that there is no positive duty incumbent on the creditor to prosecute measures of active diligence against the principal debtor. Mere passive inactivity or neglect on his part to call the prin- cipal debtor to account in a reasonable time, and enforce pay- ment, does not in the absence of a special stipulation in the instrument of suretyship, rendering activity on his part * 76 * necessary, operate to discharge the surety (r). The same principle applies to the case of a surety who has guaranteed the honesty of a person employed or intr,usted by another with money. The mere passive inactivity or neglect of the person to whom the guarantee is given to call the party whose honesty has been guaranteed to account within a reason- able time, does not, in the absence of a special stipulation rendering activity on his part necessary, operate to discharge the surety.^ The surety is not entitled to be released from the V. Charlton, 10 Ha. 649 ; Wyke u. G. 280. See South o. Bloxam, 2 H. & Rogers, 1 D. M. & G. 413. M. 457. (m) Boaler v. Mayor, 19 0. B. N. S. (r) Wright v. Simpson, 6 Ves. 714; 76. Trent Navigation -Co. v. Harley, 10 In) Clarke v. Henty, 3 Y. &. C. 187. East, 34 ; Eyre v. Everett, 2 Buss. S81 ; (o) Boaler v. Mayor, 19 C. B. N. S. Newton v. Chorlton, 10 Ha. 651; Price 76. V. Kirkham, 3 H. & C. 437. ip) Boaler v. Mayor, 19 C. B. N. S. i This is held to be the law in Pitts- 76. burg. Fort W. & C. Railroad Co. v. (q) Wheatley v. Bastow, 7 D. M. & Shaeflfer, 8 Amer. Law Keg. 110, how- [80] CH. IV.J SURETYSHIP. * 77 obligation, because the employer fails to use all means in his power to guard against the consequences of dishonesty. There must be some positive act done by him to the prejudice of the surety, or such a degree of negligence as to imply connivance and fraud (s).i But the passive inactivity of the creditor may discharge the surety, if there be a stipulation in the instrument of suretyship that the creditor is on default to sue the surety without delay (t). The case as to the effect of delay to sue in the case of bills of exchange, turns on a different principle. By mercantile usage a contract is implied in the holder to give notice of dishonor within a- certain time, to the drawer or indorser who stands in the situation of surety for the acceptor (u). 13. A man who has become bound as surety for the honesty of another, for an indefinite period, cannot put an end to his liability by giving notice to the obligee of his intention to be no longer bound (a;). 14. A creditor cannot be compelled in equity to resort in the first instance to the principal debtor, or to the securities which he holds for the debt before proceeding at law against the surety (y). There may, however, be extreme cases in * which a court of equity would grant the surety relief, * 77 ever prejudicial the forbearance of the Dow. 233 ; Hpll v. Hadley, 2 A. & B. creditor may be to the surety. This 758. case also decides that the sureties of a (u) 8 Jur. N. S. 802, per Lord Kings- railroad officer, charged with the receipt down. and disbursement of money, are within (x) Gordon u. Calvert, 4 Kuss. the rule ; and the company is not bound 581. See Bonser v. Cox, 6 Beav. to dismiss the officer as soon as any 379. default becomes known, and to give M Ranelagh v. Hays, 1 Vern. 189, notice to the sureties that they may 2 Ch. Ca. 146. take measures to secure themselves by i In New York it is settled that if a proceedings against the principal. And surety request the creditor to collect where an officer of a corporation violates the debt from the principal, and the his duty, knowledge on the part of creditor refuse or neglect to do so at a other officers of tlie corporation of the time when it is collectible, and from a default, or even connivance in it, does subsequent change of circumstances it not discharge the sureties. becomes uncollectible, the surety is, by (s) McTaggart v. Watson, 3 CI. & such conduct of the creditor, exonerated Fin. 525, 10 Bligh, N. S. 618 ; Creighton from his hability. Remsen v. Beek- V. Rankin, 7 CI. & Fin. 325; Dawson v. man, 25 N. Y. 555. It is also held in Lawes, Kay, 280 ; Black v. Ottoman this case that a surety who, by arrange- Bank, 8 Jur. N. S. 801. ment between himself and the principal {t) Monutague v. Tidcombe, 2 Vern. debtor, takes the primary liability upon 518 ; Bank of Ireland v. Beresford, 6 himself, may, by subsequent arrange- 6 [81] :77 SURETYSHIP. [CH. IV. as, for instance, where the creditor has only to put out his hand to receive payment, or where the surety is under a disability which prevents him from obtaining, in his own person, the benefit of securities which have been set apart for the creditor (2). 15. A surety, upon satisfying the obligation in which he is bound, is entitled to the benefit of all securities, either of a legal or an equitable nature, which the creditor or obligee has or could have enforced against the principal debtor (»), and all persons claiming under him (6).-' The creditor is under an obligation to preserve for the surety all the securities which he has taken from the principal debtor. If he parts with any of them, or if the full benefit of any of them is lost through his act or default, the surety is exonerated to the extent to which ment with third parties, re-establish himself in the position and with the rights of a 'surety without the consent of the creditor. In Singer w. Troutman, 49 Barb. 182, it is held that the creditor must be requested to enforce the collec- tion of the debt 6y due process of law, and that nothing short of that will exonerate the surety. And where the 'request was that the creditor should " push " the principal and " keep pushing him," it was held that these words had not the same legal significance as the words " prosecute or collect," and to give them this signification in such case not only must the creditor so understand them, but the surety should have meant and intended that. lb. {s) Wright V. Nutt, 1 H. Bl. 136, 3 Bro. C. C. 326 ; Cottin v. Blane, 2 Anst. 544. But see Wright v. Sunpson, 6 Ves. 714. (a) Wright v. Morley, 11 Ves. 12; Craythorne v. Swinburne, 14 Ves. 159 ; Copis V. Middleton, T. & R. 224 ; May- hew V. Criokett, 2 Swanst. 185; Yonge V. Beynell, 9 Ha. 809 ; Lake v. Brutton, 8 D. M. & G. 440 ; Brandon v. Brandon, 3D. & J. 524 ; Ewart v. Latta, 4 Macq. 983. Comp. Williams v. Owen, 13 Sim. 597 ; Farebrother v. Wodehouse, 23 Beav. 18. (b) Drew v. Lockett, 32 Beav. 499. See Mercantile Law Amendment Act, 19 & 20 Vict. c. 97, ». 5. 1 Hayes v. Ward, 4 Johns. Ch. 130 ; [82] Lewis V. Palmer, 28 N. Y. 271, and cases cited. City Bank v. Young, 43 N. H. 457 ; Butler v. Birkey, 13 Ohio St. 514;' Brown v. Ray, 18 N. H. 102, Parker, C. J. ; Schnitzel's Appeal, 49 Penn. St. 23 ; Hartwell v. Smith, 15 Ohio St. 202. A statute which prohibits the transfer of bank stock or the re- ceipt of dividends thereon by any stock- holder who may, at the time, be indebted to the bank, though intended mainly for the security of the bank, operates also incidentally in favor of the indorsers -of such debtors. The right of a bank to prevent such transfer or payment becomes abso- lute as soon as any such debt becomes due and payable ; and the legal title to the stock remains in the bank for its own security until payment, and for the benefit of the sureties of a debtor, if there be any afterwards. Klopp v. Lebanon Bank, 46 Penn. St. 88. And " it is well settled by the authorities that the creditor has an equitable claim to ttie security, as well when the mortgage is given for mere indemnity as when the condition is added that the principal shall pay the debt." Chapman, J., in New Bedford Ins. for Savings v. Fair- haven Bank, 9 Allen, 178, citing Moses V. Murgatroyd, 1 Johns.Ch. 119 ; Phillips V. Thompson, 2 Johns. Ch. 418 ; Ten Byck V. Holmes, 3 Sandf. Ch. 428; Riddle v. Bowman, 7 Fost. N. H. 236 ; Aldrich v. Martin, 4 B. I. 520. CH. IV.] StJBBTTSHIP. * 78 he is prejudiced thereby (c). The rule applies where the benefit of a security is lost, through the neglect of the creditor in not perfecting the instrument in the proper way (c?). The right of the surety is the same, whether he knew of the exist- ence of the securities or not (e), or whether the securities were deposited with the creditor subsequently to the date of the instrument of suretyship (/). The surety is entitled to have the security in the same plight and condition in which it stood in the creditor's * hands (^). A surety, * 78 however, for part of a debt is not entitled to the benefit of a security given by the debtor to the creditor at a different time in a distinct transaction for another part of the debt (K). 16. The rule is the same both at law and in equity, that the question whether a party to a written instrument is a principal or only a surety, must be ascertained from the terms of the in- strument itself (i). But in equity, persons who appear on the face of an instrument as joint debtors, may, by an arrangement between themselves, create the relation of principal and surety to each other without the knowledge of the creditor. So long as the creditor is ignorant of the change, he will not be affected by it ; but as soon as he receives notice of the relation, the rights of the surety are the same as they would have been if the existence of the relation had appeared on the face of tlae instrument. The knowledge by the creditor of the existence of the relation creates an equity dehors the instrument, which will affect him with the consequences of the relation. The mere notice of the existence of the relation is sufficient to affect him- without any further acceptance on his part. The creditor is bound from the date of the receipt of the notice. If, having such notice, he gives time to the principal debtor, the surety is (c) Mayhew «. Crickett, 2 Swanst. 191 ; Newton v. Charlton, 10 Ha. 191 ; Williams v. Price, 1 Sim. & St. 649 ; Lake v. Brutton, 8 D. M. & 581 ; Cape! v. Butler, 2 Sim. & St. 457 ; G. 452 ; Pearl v. Deacon, 1 D. & J. Newton v. Charlton,10 Ha, 649 ; Wheat 462 ; Watte v. Shuttleworth, 7 H. & N. ley V. Bastow, D. M. & G. 261 ; Pearl 353. V. Deacon, 1 D. & J. 462. Comp. Wat- (/) Lake v. Brutton, 8 D. M. & G. son V. Alcock, 4 D. M. & G. 242 ; Watts 440 ; Pledge v. Buss, John. 666, V. Shuttleworth, 6 H. & N. 235, 7 H. & (a) Pledge v. Buss, John. 666. N. 853. (h) Wade v. Coope, 2 Sim. 155. (d) Strange v. Fooks, 4 Giff. 408. - (i) HoUier v. Eyre, 9 CI. & (c) Mayhew u. Crickett, 2 Swanst. Kn. 1. [83] * 79 PENALTIES AND FOEPEITUEES. [CH. IV. discharged (/). Notice that some of the parties to an instru- ment are not primarily liable, is enough to fix the creditor with the consequences of the relation, although there was no notice who the parties were. If the effect of the agreement between the creditor and the principal debtor be to alter the position of the parties who should turn out to be sureties, it is as wil- fully done, and as inequitable, as if he had express notice who those parties were (&). Parol evidence, dehors the instru- * 79 ment, * is admissible to show that a party who appears on the face of the instrument as a principal is only a surety, and that the creditor had notice of the existence of the relation between the parties (I'). SECTION VIII. — PENALTIES AND EOREEITITEES. 1. Courts of eqiiity will relieve against penalties and forfeitures. 2. Most familiar cases, those of a penalty to a bond or instrument securing the payment of money. 3. Jurisdiction extends to all agreements where a stipulation is made in the event of non-performance whicJbi is in effect a penalty. 4. Practice when penalty is to secure the due performance of some collateral act. 5. Statute provisions. 6. Distinction between penalties and liquidated damages. 7. Clauses imposing a forfeiture distinguished from clauses which give a privilege, in, the event of prompt payment. 8. Relief may be had in equity against forfeiture for non-payment of rent. 9. Practice before and under the statute. 10. Relief as well where there is a proviso that lease shall be void, as where there is power of re-entry. 11. Practice where there is a breach of other covenants as well as non-payment of rent.;: 12. Compensation not a ground of relief against forfeiture, except in case of a simple money payment. No relief against forfeiture for breach of covenant, except in special cases. (j) Oakley u. Pasheller, 4 CI. & Ein. Ex parte Graham, 5 D. M. & G. 207, 10 Bligh, N. S. 548; Davies v. 356. Stainbank, 6 D. M. & G. 679; Pooley (k) Bailey v. Edwards, 4 B. & S.761, V. Harradine, 7 E. & B. 442 ; White v. 772. Corbett, 1 El. & El. 692; Greenoughw. (I) Craythorneu. Swinburne, 14 Ves. M'CleUantJ, 2 El. & El. 424; Wythes 160, 170; Clarke v. Henty, 3 Y. & C. V. Labouchere, 3 D. & J. 598 ; Taylor 187. See Pooley v. Harradine, 7 E. & V. Burgess, 5 H. & N. 1 ; Bailey v. B. 442; Ewin v. Lancaster, 6 B.'& S. Edwards, 4 B. & S. 761; Ewin v. 571. Lancaster, 6 B. & S. 571. Comp. [84] CH. IV.] PENALTIES AND FORFEITURES. * 79 13. No relief against forfeiture for breach of covenant to repair. 14. Nor against forfeiture for breach of covenant to insure. 15. Exception where the covenant to insure has been substantially complied with. 16. No relief against forfeiture for breach of covenants in a building lease. 17. Nor for breach of covenants in a farming lease. 18. Nor for breach of covenant not t» assign. What constitutes assignment. 19. Nor for breach of covenants not to trade without license. 20. Course of proceeding when relief is sought by a person who is in possession under an agreement for a lease, no legal relation existing, between the parties. 21. Relief wiU be given under special circumstances against forfeiture. 22. Right to enforce forfeiture for breach of covenant lost by waiver or acquiescence. 23. Must be a case equivalent to fraud in the landlord to insist on forfeiture. 24. Waiver not an excuse for subsequent forfeiture. 25. Practice in restraining ejectment and relieving against forfeiture. 26. Practice in reference to forfeiture of shares in public works. 27. In reference to contractor who has agreed to execute public works of a company. 28. In reference to forfeitures imder ship registry acts. 29. In reference to forfeitures imposed by statute or according to customs of manors. , 30. Same considerations apply in cases of forfeitures for breach of condition as for breach of covenant. 31. Conditions precedent must be literally performed. 32. No equity, except under special circumstances, to restrain commission of a forfeiture. 1. A court of equity will relieve against penalties and for- feitures.^ At law, on the breach of a covenant secured by a penalty, the full penalty may be enforced without regard to the damage sustained. In equity, however, contracts being treated as matters for specific performance, the annexation of a penalty does not alter the character of the contract. Where the pay- ment of money or the doing of any particular act is secured by a penalty, equity treats the penalty as being merely the means of securing the payment of the money, or the due performance of the act contracted to be done, and not as a sum of money actually intended to be paid (to). The contracting party may not on the one hand evade performance by paying the penalty, (}i), nor on the other hand enforce the penalty to its full nomi- nal extent. If the party seeks to enforce his legal right to the full penal sum named in the penalty, a court of equity will grant relief to the party in default, upon his -making full com- pensation for the actual damage sustained through his default. (m) Peachy v. Duke of Somerset, 1 191 ; Chilliner v. Chllliner, 2 Ves. 528 ; Stra. 447 ; Sloman v. Walter, 1 Bro. Hardy v. Martin, 1 Cox, 26 ; French v. C. C. 419 ; Errington v. Aynsley, 2 Bro. Macale, 2 Dr. & War. 284. C. C. 841 ; Eanger v. Great Western ^ But does not enforce either. Hors- Railway Co., 5 H. L. 94. See infra. burg v. Baker, 1 Peters, 232 ; Livingston (n) Hobson v. Trevor, 2 P. Wms. v. Tompkins, 4 Johns. Ch. 431. [85] * 80 PENALTIES AND POEPBITURES. [CH. IT. The principle upon which the relief is granted is that the other party may receive by way of recompense all that he expected and desired (o). 2. The most familiar and perhaps the earliest instance in which equity gave relief against penalties, was in the case of a penalty to a bond or instrument securing the payment of * 80 money. The * payment of the principal sum, interest, and costs being full compensation for the damage sus- tained for the non-payment of money at the appointed-time, or in the mode appointed, the jurisdiction of equity in granting relief in all cases of the sort has been long established (p). The circumstances of the case, however, may be such as not to justify an interference on the part of the court with the legail right of the plaintiff to enforce the full penal sum named in the bond, notwithstanding that it may greatly exceed the sum for which the bond was given as a security (g-). If a party chooses by improper proceedings to prevent a creditor from having payment as soon as he ought, these proceedings shall not operate to the prejudice of the creditor, but he shall be considered as entitled to receive what is really the amount due, and notwithstanding there is a penalty in the bond, that shall not be the limitation of what shall be recovered by him (r). 3. The jurisdiction of the court in relieving against penal- ties is not limited to the case of bonds or instruments which in terms impose a penalty, but extends to all agreements where a stipulation is made in the event of non-performance, which is in effect a penalty. If, for instance, the condition of a bond be to pay a higher rate of interest, if the debt be not paid on a certain day, equity will consider such condition in the nature of a penalty, and will relieve against it (s). So also if a cer- tain rate of interest be reserved in a mortgage deed, with an agreement that if it be not punctually paid the rate shall be increased, the larger interest is regarded as in the nature of a (o) Peachy v. Duke of Somerset, 1 ig) Osborne u. Eales, 2 Moo. P. C. N. Stra. 447. S. 125. ip) Holies V. "Wyse, 2 Vern. 289; (r) Grant u. Grant, 3 Sim. 340. See Strode v. Parker, 2 Vern. 316 ; Walms- Pulteuey v. Warren, 6 Ves. 79 ; Clark ley V. Booth, Barnard, 481- Peachy v. v. Lord Abingdon, 17 Ves. 106. Duke of Somerset, 1 Stra. 447 ; Aylett (s) Holies v. Wyse, 2 Vern. 289 ; V. Dodd, 2 Atk. 238 ; Seton v. Slade, 7 Strode v. Parker, ib. 316 ; Wahnsley v. Ves. 273 ; Davis v. West, 12 Ves. 475. Booth, Barnard, 481. [86] CH. IV] PENALTIES AND POEPEITURBS. * 81 penalty, and will be relieved against (f). So also in the case of an estate sold by auction, although there be a condition to forfeit the deposit if the purchase be not completed within a certain time, the court * will relieve against * 81 forfeiture upon payment of interests and costs (m). 4. If the intent of the insertion of the penalty is not to secure the payment of money, but to secure the due performance of some collateral act or undertaking, the bill will be retained, and an issue quantum damnifieatus directed, and relief will be granted upon the payment of the damages as assessed by a jury («). In Thomas v. Archbishop of Canterbury (y}, where an administratrix had entered into the -usual administration bond to exhibit an inventory within a li^mited time, and the time having elapsed without an inventory having been' exhib- ited, the court restrained a creditor from putting the bond in suit, putting the plaintiff, however, on terms (a). 5. Two statutes, 8 & 9 Will. 3, c. 11, s. 8, and 4 Anne, c. 16, ss. 12, 13, the former applying to penalties for non-performance of covenants, and the second to penalties for non-payment of money, have had the effect of diminishing the frequency of equitable interference in restraining actions upon penalties, but they do not affect the jurisdiction of the court. 6. Care must be taken in distinguishing cases of penalties strictly so called from those cases where a certain sum is agreed upon by the parties to be paid as the price of doing or refrain- ing from doing a certain act. Parties to an agreement are at full liberty to agree that in case the one party shall do or omit to do a certain stipulated act, the other party ' shall receive a certain fixed sum as a conventional amount of damages sus- tained by such act or omission. The stipulation is part of the express contract between the parties, and is good and valid both at law and in equity. A court of equity will in such cases, neither on the one hand restrain the doing of the act, nor relieve (t) Rose V. Rose, Amb. 331 ; Nieh- (x) Sloman v. Walter, 1 Brb. C. C. oils V. Maynard, 3 Atk. 519 ; Seton v. 418 ; Hardy v. Martin, 1 Cox, 26 ; Er- Slade, 7 Ves. 273, rington v. Aynsley, 2 Bro. C. C. 341. (m) Vernon v. Stephens, 2 P. W. 66 ; (i/) 1 Cox, 399. Moss V. Matthews, 3 Ves. 279 ; Casson {z) See Benson v. Gibson, 3 Atk. V. Roberts, 32 L. J. Ch. 105. See Len- 396. non V. Napper, 2 Sch. & Lef. 685. [87] *82 PENALTIES AND FORFEITURES. [CH. IV; against the payment* of the full amount agreed to be * 82 * paid, if the act be done or omitted to be done as the case may be (a)--^ 7. Cases where a penalty or forfeiture is introduced for the purpose of security must be distinguished from cases where there is no stipulation for penalty or forfeiture, but a privilege is conferred, provided money be paid within a stated time. The party claiming the privilege must be able to show that the money was paid accordingly (6). As in the case of interest reserved on a loan at five per cent, with a proviso that four per cent will be accepted if paid within a limited time after it comes due (c) ; or in the case of a covenant for the renewal of a lease on the payment of a certain fine at a stated period (d} ; or in the case of a power as to repurchase on payment of rents or moneys at stated periods (e) ; or in the case of an agreement by a creditor to take less than his debt, so as the money is paid at a certain day (/). On the same principle a proviso that a sum due should be payable by instalments, pro- vided they were punctually paid, but that in case of any de- fault in paying them, the whole sum should be payable at once, does not amount to a penalty (^g'). So also if a contract pro- vides that the purchase-money shall be paid in the course of or at the end of ten years, and that the interest for the first two years shall be five per cent, and the interest for the next two years shall be six per cent, and the interest for the next two years shall be seven per cent, and so on, the contract is good (K). 8. The equitable doctrine of relief against penalties has (a) Small v. Fitzwilliam, Free. Ch. (/) Sewell v. Musson, 1 Vern. 210; 102 ; French v. Macale, 2 Dr. & War. Ex parte Bennett, 2 Atk. 627 ; Ford v. 269 ; Ranger w. Great Western Railway Earl of Chesterfield, 19 Bear! 431. See Co., 5H. L. 94. See infra. M'Kenzie v. M'Kenzie, 16 Ves. 372; (6) Rose V. Rose, Amb. 331 ; Davis Thomson v. Hudson, 2 L. R. Ch. App. V. Thomas, 1 R. & M. 506. Comp. Car- 256. roll V. O'Connor, 11 Ir. Eq. 200. {g) Sterne v. Beck, 1 D. J. & S. 595. (c) NichoUs V. Maynard, 3 Atk. 519. Cornp. Carroll v. O'Connor, 11 Ir. Eq. (d) 1 R. & M. 508, per Sir J. Leach, 200. M. R. (A) Herbert v. Salisbury and Yeovil (e) Barren v. Sabine, 1 Vern. 268 ; Railway Co., 2 L. R. Eq. 221. Joy V. Birch, 4 CI. & Fin. 57, 89 ; Davis v. i Skinner v. Dayton, 2 John. Ch. 526. Thomas, 1 R. & M. 506 ; Brooke v. Gar- And as to liquidated damages and pen- rod, 2 D. & J. 562. See Lord Ranelagh allies, see Van Buren o. Digges, 11 V. Melton, 2 Dr. & Sm. 278. How. U. S. 461. [88] CH. IT.] PENALTIES AND FORPEITDEES. * 84 been * extended to leases containing a clause of re- * 83 entry on non-payment of the rent at the appointed time. The jurisdiction has been long established upon the principle that the right of entry is in the nature of a penalty to secure the payment of the rent, and that the payment of rent with interest and costs is a sufficient compensation for the damage sustained, and is as beneficial to the landlord, if paid at any time, as it would be if paid at the appointed day (i). The soundness of the principle has been much questioned by Lord Eldon and other judges, it being by no means true that a subsequent pay- ment of the rent, interest, and costs, is an equivalent for punctuality of payment (F) ; but the doctrine has received a parliamentary recognition by statute 4 Geo. 2, c. 28, ss. 2-4. 9. Before the statute was passed; the tenant could not only obtain an injunction to restrain the lessor from turning him out of possession, but might, at an indefinite time after he was pjected, have filed his bill, and been relieved against the effects of the non-payment of rent (Z). The statute, by the second clause, limited the time within which the lessee might obtain relief to applications made within six months after execution ; and, by the third clause, enacted that no lessee should be en- titled to have or continue an injunction against proceedings in ejectment, unless he should pay into court, within forty days after answer, the arrears and costs, whereupon, according to the fourth clause, all proceedings in the action should cease, and the lessee should, if relieved under the statute, hold the demised lands without any new lease (m). These clauses have been re-enacted, with a few immaterial variations, and have been, in effect, superseded by the Common Law Proced- ure Act, 16 & 16 Vict. c. 76 (n). The provision in the third clause for payments into court of the arrears of rent and costs, applies only to the case where the * tenant * 84 comes for an injunction by which his possession is to be , (t) Gary, 45 ; Descarlett v. Dennett, (l) Bowser v. Colby, 1 Ha. 125. 9 Mod. 23 ; Wadman v. Calcraft, 10 (m) See Doe v. Lewis, 1 Burr. 619 ; Ves. 68; Davis w. West, 12 Ves. 475; Hill v. Barclay, 18 Ves. 60; Doe w; Keating v. Sparrow, 1 B. & B. 367 ; Smith, 7 Price, 326 ; Bowser v. Colby, Bowser v. Colby, 1 Ha. 130. 1 Ha. 140. (/fc) Hill w. Barclay, 16 Ves. 405, 18 (n) Ss. 210-212. See Hughes u. How- Yes. 61 ; Reynolds v. Pitt, 19 Ves. 140 ; ard, 25 Beav. 575. Doe V. Smith, 7 Price, 326. [89] * 85 PENALTIES AND FORFEITURES. [CH. IV. continued, and the landlord restrained from proceeding with his ejectment. In all these cases, if the injunction is granted, the court is bound by the statute to impose such terms for the security of the landlord. But if the landlord is actually in possession, undisturbed by the interposition of the court, and the first application which the tenant makes to the court for relief is made at the hearing of the cause, the statute does not then apply (o). 10. Relief will be given against forfeiture for non-payment of rent, as well where there is a proviso that upon non-pay- ment of rent the lease shall be void, as where there is a power of re-entry (j?). 11. If a lessor is proceeding at law, not merely on account of the non-payment of rent, but also for the breach of other covenants, with respect to which there exists no equitable ground of relief, and there has been clearly a breach of one or more of such other covenants, the court will not restrain him from recovering in ejectment for the non-payment of rent (g') : but if it is doubtful whether there has been a breach of any of the covenants, other than that for the non-payment of rent, the lessor will be allowed to proceed on any other covenant, against the breach of which the court does not relieve, but will be restrained from proceeding at law on account of the non- payment of rent (r). Though relief will almost always be given against the forfeit- ure of a lease for non-payment of rent, a case may exist in which a lessee shall have so dealt with the property of his landlord, or otherwise so acted as to deprive himself of the right to equitable interference (s). 12. It was formerly laid down, and in several cases it 85 has been * held, that relief might be given in equity, against forfeiture, if compensation could be made, even (o) Bowser v. Colby, 1 Ha. 127. 3 Drew. 693 ; Bamford v. Creasy, 8 Giff. ' ' Bowser v. Colby, 1 Ha. 128, 129. 681. » a Wadman v. Calcraft, 10 Ves. 67 ; (r) Daris v. West, 12 Ves. 475 ; Lovat Davis V. West, 12 Ves. 475 ; Lovat v. v. Lord Ranelagh, 3 V. & B. 29 ; Bow- Lord Ranelagh, 3 V. & B. 29 ; Home v. ser v. Colby, 1 Ha. 109 ; Bamford v. Thompson, Sau. & Sc. 615 ; Bowser Creasy, 3 Giflf. 681. V. Colby, 1 Ha. 134; Nokes v. Gibbon, (s) 1 Ha. 138, per Wigram, V. C. [90] CH. IV.] PENALTIES AND FORFEITURES. * 86 although the act or omission were voluntary (f). In Sanders V. Pope (m), Lord Erskine gave relief against the breach of a covenant to lay out a certain specific sum in repairs, upon the principle that compensation might be made ; and in the subse- quent case of Davis v. West (v), he laid down the same doc- trine, referring to his previous decision, and saying that in giving judgment in that case he felt himself bound by the authorities. But the principle upon which Lord Erskine pro- ceeded in those cases has been disapproved by Lord Bldon and other judges, and may be looked on as expressly and distinctly overruled («) ; and it may now be considered as clear and settled law, that relief will not be given against forfeiture for breach of covenant, upon the ground that compensation may be made, except when the breach of covenant has been the omission of a simple money payment, such as rent (?/). In no other cases will relief be given against forfeiture for the breach of a covenant, unless under very special circumstances (z). If the contract between a landlord and tenant be so strict that the lessor may enter upon a breach of one of the covenants, the court cannot interfere to modify the contract (a). " It is," said Lord Lyndhurst, in Hillier v. Parkinson (5), " a very vul- gar and general notion that it is the province of a court of equity to step in upon every occasion where the strict rule of law appears to bear hard upon individuals in particular cases. If it were to be held that equity is to relieve in any case where the strict rule of law may press hard upon indi- viduals, it would be nothing more or less than a * system *86 of ex post facto laws. The doctrine of equitable relief against breaches of covenant is a mischievous one, and has been exploded. That is not a province of a court of equity : (i) Popham v. Bampfield, 1 Vern. 83 ; v. Buckley, 2 Price, 200 ; Gregory v. Hayward v. AngeU, *. 222 ; Rose v. Wilson, 9 Ha. 689. Rose, Amb. 332 ; Northcote v. Duke, (y) Nesbitt v. Tredennick, 1 B. & B. Amb. 513 ; Cage v. Russell, 2 Vent. 29, 47 ; Keating v. Sparrow, ib. 367 ; 352; Wafer v. Mocatto, 9 Mod. 112; Job w. Banister, 2 K. & J. 382 ; Bowser Hack V. Leonard, ib. 91. v. Colby, 1 Ha. 134 ; Elliott v. Turner, (u) 12 Ves. 289. 13 Sim. 485. iv) Ib. 475. (z) Winthrop u. Murray, 8 Ha. 214 ; \x) Hill V. Barclay, 18 Ves. 56 ; Eey- Shearman v. Macgregor, 11 Ha. 106. nolds V. Pitt, 19 Ves. 140 ; Bracebridge (a) Meek v. Carter, 4 Jur. N. S. 992. b) 9 L. J. Ch. 156. [91] * 87 PENALTIES AND FORPEITUEES. . [CH. IV. where there is a breach of covenant which produces a forfeit- ure at law, that also works a forfeiture here." It is not, however, every breach of a covenant that at law would work a forfeiture : it must be a serious, wilful, delib- erate breach (c) : but if a man who knows that he is charged with a legal obligation neglects to perform it, his neglect to do so must, even in equity, be deemed to be wilful, and, if he per- sist in it, to be deliberate (ci). 13. Relief, accordingly, will not be given against forfeiture for breach of covenant to repair, or spend a specific sum in re- pairs (e). A tenant is not absolved from the performance of the covenants in his lease by notice to quit (/). Nor is notice by the landlord to repair necessary, unless there be a stipu- lation in the lease rendering it necessary (^). "If," said Thompson, 0. B. Qi), " a man covenant to do an act within a certain time, no demand is necessary ; and a neglect of per- formance is tantamount to a refusal in law." The fact that large sums of money may have been expended upon the prem- ises does not create an equity for the interference of the court, if there has been in fact a breach of the covenant to repair (i). A covenant to repair is not broken by allowing the premises to go out of repair. A reasonable time will be allowed for repairs : if they are repaired within a reasonable time, there is no breach of the covenant (y). In Ex parte Vaughan (yfc), relief was given against eject- ment brought by the committee of a lunatic's estate, against a tenant for breach of a covenant to repair, on the ground * 87 that the * breach was not one which a judicious land- lord would have taken advantage of. The case can, however, hardly be treated as an exception to the general rule, for the court was not adjudicating between the hostile claims (c) Rankin v. Lay, 2 D. F. & J. 73, (/) Gregory v. Wilson, 9 Ha. 683. /jer Lord Campbell. See Parker w. Tas- (a) Eracebridge «. Buckley, 2 Price, well, 2 D. & J. 570, per Lord Chelms- 200. ford. (h) lb. 213. (d) Gregoryti. Wilson, 9 Ha. 689, per (i) Job v. Banister, 26 L. J. Ch. 125, Turner, L. J. 3 Jur. N. S. 93. (e) Bracebridge v. Buckley, 2 Price, (J) lb. See Gauge v. Lockwood, 2 200; Gregory v. Wilson, 9 Ha. 689; F. & P. 115. See Bargent v. Thompson, 4 Giflf. 475. (k) T. & R. 436. [92] CH. IV.] PENALTIES AND FORFEITURES. * 88 of landlord and tenant, but was acting In lunacy on behalf of the lunatic, and merely refused as a landlord, and acting on his behalf, to take advantage of the forfeiture. 14. Nor will relief be given in equity against forfeiture for breach of a covenant to keep premises insured (J), or to pay the premiums, and keep up a policy of insurance (jri). The omission to insure is stronger against a tenant than the omis- sion to repair, because, in the latter case, the landlord may, by exercising due vigilance, see to the observance of the covenant, but in the former case, where the lessee has iindertaken to keep insured, the landlord must rely upon him for the fulfil- ment of his obligation (w). Insurance after the breach has been committed has no effect in curing the breach (o). In Green v. Bridges (j?), the court would not restrain proceedings in ejectment for breach of a covenant to insure in a lease for 999 years, though it was clear the reversion was of no use to the lessor. The court has been empowered by statute 22 & 23 Vict. c. 35, ss. 4-9, to give relief against the breach of a covenant to keep premises insured, where the breach has been committed through accident, mistake, or otherwise, without fraud or gross negli- gence. Relief may not, however, be given more than once in respect of the same covenant : nor can relief be given where a forfeiture under the covenant has been already waived out of court in favor of the person seeking relief. Relief may be given under the statute, for breaches of covenant in leases granted before the statute Qq). 15. * Relief may, however, be given in equity against * 88 forfeiture, if the covenant to insure has been performed substantially, though it may not have been literally performed. At law, a covenant by the lessee to insure in the name of the lessor only is not performed by an insurance in the joint (I) "White V. Warner, 2 Mer. 459; (o) Eeynolds v. Pitt, 19 Ves. 140; Eeynolds v. Pitt, 19 Ves. 140; Eolfe v. Green v. Bridges, 4 Sim. 96 ; Elliott v. Harris, 2 Pri. 207, n. ; Green v. Bridges, Turner, 13 Sim. 477 ; Gregory v. Wil- 4 Sim. 96 ; Elliott v. Turner, 13 Sim. son, 9 Ha. 689 ; Nokes v. Gibbon, 3 477 ; Gregory v. Wilson, 9 Ha. 683 ; Drew, 681 ; Meek v. Carter, 4 Jur. N. Shearman v. Macgregor, 11 Ha. 106 ; S. 992. Nokes V. Gibbon, 3 Drew. 681 ; Meek (p) 4 Sim. 96. V. Carter, 4 Jur. N. S. 992. \q) Page v. Bennett, 2 Giff. 117, 6 Im) Winthorp v. Murray, 8 Ha. 214. Jur. N. S. 419. (n) White v. Warner, 2 Mer. 459. [93] * 89 PENALTIES AND PORPEITUEES. [CH. IV. names and the lessee, because the arrangement is not so bene- ficial to the landlord as the arrangement for which he had stipulated (g-). But in equity relief may be given against forfeiture, where the manner in which the insurance has been eifected is not so beneficial to the lessor as that for which he had stipulated, if the covenant has been on the whole substantially complied with. In Rogers v. Tudor (r), there was a covenant in a lease that the lessee should insure in his own name, and the name of the lessor, in the Law Fire Insurance Ofiice, or such other ofiice as the lessor should fix on, and the lessee effected an insurance in his own name alone, without any communication with the lessor, in the Phoenix office ; but the court held that though this was not a literal performance of the obligation, the covenant to insure was substantially complied with, and that no forfeiture on which ejectment could be brought had taken place (s). 16. Nor will relief be given in any equity against forfeiture for the breach of covenants in a building lease. In Nokes v. Gibbon (f), the court would not relieve against the breach of covenants in a building lease, for the making of a road and footway, and for the digging of drains. The plaintiff, in equity, alleged in excuse that it would have been useless to make the roadway until the other houses in the row were com- pleted. But the court held this to be no excuse, and not 'to furnish any equity on which the legal right could be interfered with. So, also, where a builder had agreed to take land on a building lease, and to erect houses thereon within a specified time, the land-owner making him certain advances, and there was a clause of forfeiture in default of the completion of the houses within the time, the court would not relieve * 89 against forfeiture, * the landlord having performed his own part of the contract (m). The fact that the lessor has the option of either insisting on the forfeiture, or carrying on the buildings at the expense of the lessee, does not qualify or abridge the right of forfeiture upon breach of the cove- (?) Penniall v. Harbone, 11 Q. B. 683; Lillie v. Legh, 3 D. & J. 204; 396. See Havens v. Middleton, 10 Ha. Leather Co. v. Brassey, 8 Jur. N. S. 641. 425. {r) 6 Jur. N. S. 692. It) S Drew. 681. (s) See Gregory v. "Wilson, 9 Ha. (u) Croft v. Goldsroid, 24 Beav. 312. [94] CH. IV.] PENALTIES AND POEPEITUEES. *. 90 nants (d). Neither the omission of the workmen employed by the lessee to perform the works in the manner stipulated, nor false representations made by them to their employer that the works had been effectually executed, can afford any equitable ground for relief against the legal right (a;). 17. Nor will relief be granted in equity against forfeiture for the breach of covenants in a farming lease, as to mode of culti- vation, &c. («/). Where a lessee under a lease to build and cultivate the land, which should not be built upon, in a hus- bandlike manner, with a clause of forfeiture in case of breach of the covenants, had built, with the knowledge of the lessor, a factory on the land, which he was obliged to pull down in consequence of an indictment, and had paid part of the pro- ceeds to the lessor, in pursuance of an agreement between them, the court held he had no equity for relief against for- feiture, and refused to restrain ejectment for the non-cultiva- tion of the land after the. buildings had been pulled down (z) . In an American case, Dunkee v. Adams (a), the court would not relieve against forfeiture for breaches of a covenant, secur- ing the performance of certain personal services for the com- fort and convenience of the party claiming the forfeiture. 18. Nor will relief be given in equity against forfeiture for the breach of a covenant not to assign without license (6) ; but equitable arrangements charging the property comprised in a lease, but not accompanied with a change of possession, or other * alteration of the property, do not work a for- * 90 feiture of a lease in equity, notwithstanding there is a clause in the lease against assignment (c). 19. Nor will equity relieve a lessee, who carries on a trade (v) lb. 73, as to construction of covenants in a {x) Nokes V. Gibbon, 3 Drew. 681. farming lease. See as to the due completion of a build- (a) 20 Verm. (Amer.) 415. ing contract and the fair and proper {b} Wafer v. Mocatto, 9 Mod. 112 ; exercise of the architect's discretion, Hill v. Barclay, 18 Ves. 63 ; Lovat v. and the account and penalties, Pawley Lord Eanelagh, 3 V. & B. 24. See V. TurnbuU, 3 Giff. 70. Burke v. Prior, 15 Ir. Ch. 106. (y) Lovat v. Lord Eanelagh, 3 V. & (c) Bowser v. Colby, 1 Ha. 138. See B. 25. See Porrett v. Barnes, 2 L. J. Gourlay v. Duke of Somerset, 1 V. & Ch. 142. B. 73 ; Croft v. Lumley, 6 H. L. 672. (2) Hills V. Eowlands, 4 D. M. & G. See also Dumpor's case, 1 Smith, L. C. 430. See Rankin v. Lay, 2 D. P. & J. 28-4^. [95] * 9J. PENALTIES AND FORFEITURES. [CH. IV. without license contrary to covenant (<^), or a licensee who has violated the covenants contained in a deed of license (e). In Elliott V. Turner (/), the defendants had obtained a license from the plaintiff to use his invention, and had covenanted to render a full account of the quantities of goods sold by them under the license every half-year, &c., &c., and also to give notice of their intention to use the invention at any other place, &c., &c., and had also covenanted that in the event of wilful neglect and default the license might be revoked by the plain- tiff. The defendants having violated the covenants in the deed of license, the plaintiff exercised his right to revoke the license, and the court restrained them from selling any more goods under the license, as they had by their acts forfeited the license. "Although," said Shad well, V. C. (^), "it may be perfectly true that if the plaintiff instead of giving the notice of revo- cation, which by the terms of the license deed he was authorized to give, had brought an action against the defendants, he might not have recovered damages ; yet I apprehend that according to the principles of a court of equity, that circumstance has nothing whatever to do with his right to determine the license." So, also, and upon the same principle, the court would not re- lieve a lessee who, contrary to covenant not to suffer persons to make use of a way over part of the lands demised, had put up a gate at the entrance of the close, and permitted any per- sons to pass over the way, requiring them to pay (A). There is no sound distinction between the principles of the Court as to relieving against forfeitures in cases of covenants for perpetual renewal, and in ordinary cases Qi). > * 91 20. * Relief against forfeiture is sometimes sought by a person who is in possession of premises under an agreement for a lease, and before any legal relation exists be- tween him and the owner. The court is always anxious in such cases to create the relation in order that the question of {d) Maeher v. Toundling Hospital, 1 (i) Job v. Banister, 2 K. & J. 374; V. & B. 188. on appeal, 26 L. J. Ch. 125, 3 Jur. N. (e) Elliott u. Turner, 13 Sim. 475. S. 93; Murphy v. Jackson, 7 Ir. Ch. (/) lb- 189. But see Earl of Boss v. Worsop, (o) lb. 488. 1 Bro. P. C. 281. (A) Descarlett U.Dennett, 9 Mod. 23. [96] OH. IV.] PENALTIES AND FORFEITURES. * 92 forfeiture may be tried (^). The usual course is to decree specific performance of the agreement for the lease, and either to antedate it, or to prevent the lessee from setting up the date so as to defeat an action at law (l). The court will not, how- ever, in general grant a specific performance of an agreement on which it is satisfied that forfeiture will be the consequence. But when parties set up the consequence of forfeiture as against the right to specific perlBrmance, the court must be well satis- fied that forfeiture would follow upon the agreement being de- Creed to be specifically performed (wi). The court will also look to the fact by whose act and by whose conduct that for- feiture would be entailed. The conduct of the party who resists specific performance, may have been such as to prevent him from setting up the case of forfeiture as an answer to the case of the other party for specific performance of the agree- ment (n). 21. Though the rule of a court of equity in refusing to re- lieve against forfeiture for breach of covenant is in all ordinary cases very strict, the intervention of circumstances of a special and peculiar nature may raise an equity for the interference of the court. Mere accidental neglect to perform the covenants is not a ground for relief. A man who is charged with a legal obligation, and neglects to perform it, cannot have relief against the consequences of his neglect (o) ; but a neglect or omission, which arises from unavoidable accident, surprise, or mistake, may sometimes be relieved against (p). Thus where a lessee * was prevented by the state of the weather from * 92 completing the repairs of the premises within the pre- scribed time, and no notice was given to him by the lessor that the repairs should be expedited, an action of ejectment was re- {k) Gregory v. Wilson, 9 Ha. 683 ; (n) Helling v. Lumley, 28 L. J. Ch. Parker v. Taswell, 2 D. & J. 559. 249. {I) Pain V. Coombs, 1 D. & J. 34 ; (o) Gregory v. Wilson, 9 Ha. 689 ; Lillie V. Legh, 3 D. & J. 210 ; Ranken supra, p. 55. V. Lay, 2 D. F. & J. 72. See Parker v. (n) Eaton v. Lyon, 3 Ves. 690 ; HiU Taswell, 2D. & J. 559; Poyntzu.Eor- v. Barclay, 18 Ves. 62; Reynolds v. tune, 27 Beav. 393. Pitt, 19 Ves. 142 ; Hannam v. South (m) Gourlay v. Duke of Somerset, 1 London Waterworks Co., 2 Mer.,65, n. ; V. & B. 68 ; LoTat v. Lord Ranelagh, 3 Firman v. Lord Ormonde, Beat. 347 ; V. & B. 29 ; Lewis v. Bond, 18 Beav. Gregory v. Wilson, 9 Ha. 689 ; Shear- 87 ; Gregory v. Wilson, 9 Ha. 688 ; man v. Macgregor, 11 Ha. 106. HeUing v. Lumley, 28 L. J. Ch. 249. 7 [97] * 93 PENALTIES AND FORFEITURES. [CH. IT. strained by injunction (g). So, also, relief will be given where the person who seeks to enforce the forfeiture has stood by, and has by his conduct encouraged the other party in laying out moneys on the property (r), or a case of fraud can be made out (s). In Hannam v. South London Waterworks Co. (f), there was neither fraud, neglect, or surprise, but relief was granted under the peculiar circumstances of the case (m). 22. The right to enforce a forfeiture for a breach of covenant may be lost by waiver or acquiescence. The acceptance of rents or moneys due after notice of a breach of covenant, is, at law, a waiver of any breach committed prior to tlie acceptance (a;), and will be taken to be a regular payment, if the person receives it without making any objection (^). So, also, is the bringing an action for rent subsequently to a breach of covenant with full knowledge of its existence a waiver of a forfeiture («). If the covenant be a continuing one, such as a covenant to keep insured (a), to repair (6), or not to \inderlet (c). The accept- ance of rent or moneys due is a waiver only of the breaches previous to the receipt. The right of re-entry or for- * 93 feiture, however, for * any subsequent breach of the covenant is not ' affected by the acceptance (t^) . Nor will the acceptance of rent or moneys due operate as a waiver, if tl>e lessor or acceptor is ignorant of the act of forfeiture (e). Nor, where there is a covenant in a lease against carrying on certain trades, does the waiver of the covenant as to one trade operate as a waiver as to the others (/). But a breach of a covenant not to trade with him without the knowledge of the (q) Bargent v. Thompson, 4 Giff. 475. & G. 265 ; Bridges v. Longman, 24 See Bamford v. Creasy, 3 GitF. 675. Beav. 27. (r) Meek v. Carter, 4 Jur. N. S. 992; (j) Norton v. Wood, 1 R. & M. 178 ; North Staffordshire, &c., &c.. Steel Co. Wing v. Harvey, 5 JD. M. & G. 265; V. Camoys, 11 Jur. N. S. 555 ; Burke v. Croft v. Lumley, 6 H. L. 672. Prior, 15 Ir. Oh. 106 ; Shearman v. Mao- (z) Dendy v. Nicholl, 4 C. B. N. S. gregor, 11 Ha. 106. See Lennon v. 376. Napper, 2 Sch. &Lef. 682. la) Doe v. Peck, 1 B. & A. 428. (s) Waring v. Manchester, Sheffield, (6) Doeu. Jones, 5 Exch, 498; Mar- aud Lincolnsliire Kailroad Co., 2 H. & tin v. Clue, 22 L. J. Q. B. 147. Tw. 239. (c) Doe v. Bliss, 4 Taunt. 735. (i) 2Mer. 65, n. (d) Doe v. Peck, 1 B. & A. 428; (m) See also Earl of Eoss v. Worsop, Anderson v. Bailey, 1 Kuss. 316; Greg- 1 Bro. P. C. 281. ory v. Wilson, 9 Ha. 683. {x) Algar V. Murrell, 6 Jur. 776 ; Doe (e) Doe v. Harrison, 2 T. R. 425. V. Gladwin, 6 Q. B. 953; Gregory v. (/) Maoher u. Foundling Hospital, 1 Wilson, 9 H. 688 ; Havens v. Middleton, V. & B. 188. 10 Ha. 645; Wing v. Harvey, 5 D. M. [98] CH. IV.] PENALTIES AND PORPBITUEES. * 94 lessor, and an enjoyment for twenty years, is evidence from which a jury may presume license as against the assignee of the lessor (^). The principle that a landlord who receives rent from a tenant after a breach of covenant in a lease which the landlord is, by a proviso in the lease, entitled to look on as a forfeiture, is precluded from insisting on the forfeiture, applies as between the owner of a patent and a licensee (K). 23. As courts of law, in questions of forfeiture for breach of covenant, regard the substantial and not the literal perform- ance of the contract, a court of equity is not often called upon to interfere on the ground of waiver or acquiescence to control the legal right of a lessor, or other person entitled to enforce a forfeiture. There may, however, be cases in which a landlord has so dealt with a tenant as to have created an equity against himself sufficiently strong to control his legal right, but a strong case will be required for the purpose. There must be fraud, or such a degree of acquiescence, on the part of the landlord, as in the view of the court would make it a fraud in him after- wards to insist upon his legal right (i). The ultimate right which the court has to deal with, is the legal right, and a case must be made out which would justify the court in dealing with that right (Jc). In Hillier v. Parkinson (Z), where a lessor had * waived breaches of covenant on *94 the part of his lessee. Lord Lyndhurst would not extend the benefit of the waiver to sub-lessees holding under the lessee, and refused to restrain the lessee from executing a judgment in ejectment against his sub-lessee. 24. But although relief in equity may be obtained against a forfeiture, where the person incurring it has been misled by the person legally entitled to insist upon it, relief will not be given against a subsequent forfeiture, where no such excuse can be alleged. Thus, although relief may be had against the for- feiture of a lease, during a period in which the landlord has (g) Gibson v. Doeg, 2 H. & N. 615. Burke v. Prior, 15 Ir. Ch. 106. See (A) Warwick v. Hooper, 3 Mac. & G. Blennerhasset v. Day, 2 B. & B. 104 • 60. Meek v. Carter, 4 Jur. N. S. 992. (i) Gregory v. Wilson, 9 Ha. 688, (k) Gregory v. Wilson, 9 Ha. 688, 690; Att.-Gen. v. Briggs, 1 Jar. N. S. 690. See Wing v. Harvey, 5 D. M. 1084; Gerrard v. O'Eeilly, 3 Dr. & War. & G. 265 ; Johnstone v. Hall, 2 K. & J. 414 ; Johnstone v. Hall, 2 K. & J. 414 ; 414. (/) 9 L. J. Ch. 156. [99] * 95 PENALTIES AND FORFEITURES. [CH. IT. dealt with the tenant, so as to lead him to suppose the for- feiture would not be insisted on, if a subsequent forfeiture is incurred after such dealings have ceased, the prior transaction will raise no equity for relief (m). 25. If it be doubtful whether there has been a breach of covenant, and whether, if there has been a breach, there has not been a waiver of that breach, the court will, on restraining proceedings in ejectment, either direct an issue to try first whether there has been a forfeiture ; and, secondly, if there has been a forfeiture, whether the lessor has not done any act to disentitle himself from taking proceedings, or will itself examine witnesses, vivd voce, as to either or both of these facts (w). A man who seeks relief in equity against a forfeiture should use due diligence in making the application (o). 26. In the deeds of settlement of companies, or other public undertakings, there is generally inserted a stipulation that the shares shall be forfeited in the event of the non-payment of calls at the times appointed. Punctual payment being neces- sary in order to accomplish the corporate objects, equity will not grant relief against forfeiture. Thus Sir William Grant, M. R., refused to relieve against a forfeiture under the by-law of an incorporated company for waterworks, which pro- * 95 Tided that the * members receiving notice of default in paying a call should incur forfeiture by non-payment ten days after, although the non-payment arose from ignorance of the call, absence from town when the notice was sent, and other circumstances (p). But there is no inherent power in the directors, or a general meeting of the shareholders of a com- pany, to declare a forfeiture of shares. If there is no clause in the deed of settlement, or the Act of Parliament, or the charter conferring on the directors a power of forfeiture, they have no power to do so ; nor can the power be conferred on them by a ()n) Flattery v. Anderdon, 12 Ir. Eq. 615 ; Prendergast v. Turton, 1 Y. & C. 218. See Meek v. Carter, 4 Jur. N. S. C. C. 98 ; 13 L. J. Ch. N. S. 268. See 992. Lennon v. Napper, 2 Sch. & Lef. 682. (n) Thompson i'. Guyon, 5 Sim. 65; (p) Sparks v. Liverpool Waterworks Algar V. Murrell, 6 Jur. 775 ; Nokes v. Co., 13 Ves. 438. See Naylorw. Soutli Gibbon, 3 Drew. 681. Devon Railway Co., 1 De G. & Sm. (o) Home v. Thompson, Sau. & Sc. 32. [100] CH. IV.J PENALTIES AND FORFEITURES. * 96 majority of the shareholders. A company has no power to de- clare a forfeiture except it be authorized by the rules, or the deed of settlement (17). A forfeiture of shares is strictissimi juris. The power must, in order to be effectually exercised, be pursued with great exactness, and. must be exercised with per- fect bona fides, and the evidence to establish the right must be clear and distinct (r). The exercise of the power will be closely scanned by a court of equity. In Norman v. Mitchell (s) and Watson v. Bales ((), injunctions were granted to re- strain the carrying into effect of declarations of forfeiture of shares. If, however, the declaration of forfeiture, though not strictly regular, has complied substantially with the requisitions of the deed of settlement, it will be held good (u). The same rule of refusing relief applies to the case of gov- ernment loans where the shares of the stock are agreed to be forfeited, in the event of the want of punctual compliance with the terms of the loan, as to the time, and mode, and place of payment (w). 27. The same principles apply to the case of a contractor who has agreed to execute the public works of a company, and has bound himself for the due performance of his con- tract by forfeitures, * and has subjected himself to the * 96 arbitrary decision of a person nominated by his em- ployers as to his liability thereto (x). 28. Under the old law no relief could be had in equity against the forfeiture of the legal title to a ship, where the forms prescribed by the Ship Registry Act had not been com- plied with. The court had no jurisdiction to interfere with the legal title of the registered owner of a ship even in cases of fraud (j^). The jurisdiction which the court did not possess under the old law was not given by the Merchant Shipping (q) Hart v. Clark, 6 D. M. & G. 248; feiture of shares, Lindley on Partner- Barton's case, 4 D. & J. 46. ship, pp. 616-621. (r) Eichraond's case, 4 K. & J. 305; («) Sparks v. Proprietors of Liver- Stubbs V. Lister, 1 Y. & C. C. C. 97 ; pool Waterworks, 13 Ves. 433. Clark V. Hart, 6 H. L. 633, 6 D. M. & (x) Ranger v. Great Western Rail- G. 248, way Co., 2 Jur. 787, 1031. (s) 5 D. M. & G. 648. {y) FoUett v. Delany, 2 De G. & S. (t) 23Beav. 294. 235; Hughes v. Morris, 2 D. M. & (u) Wollaston's case, 4 D. & J. 437. G. 854; M'Calmont v. Rankin, ib. See turther on the subject of the for- 413 ; Parr v. Applebee, 7 D. M. & G. 691. [101] * 97 PENALTIES AND FORFEITURES. [CH. IV. Acts, 1854 and 1855, 17 & 18 Vict. c. 104, or 18 & 19 Vict, c. 91. An agreement to sell or mortgage a ship, which did not satisfy, the condition prescribed by those acts, was held not to pass any interest or to constitute a contract which the court could specifically perform (s). But by the Merchant Shipping Act, 1862, 25 & 26 Vict. c. 68, s. 3, it was enacted that equi- ties arising under contract or otherwise may be enforced against the owners or mortgagees of the ship in respect of their interest therein, in the same manner as equities may be enforced against them in respect of any other personal prop- erty (a). Though, however, the court had no jurisdiction under the old law to relieve against the forfeiture of the legal title to a ship, where the forms prescribed by the Eegistry Acts had not been complied with, equitable relief could be given as between two parties, one of whom had the better equity, where the form prescribed by the Eegistry Acts had been, as far as circumstances would admit, complied with, and could be fully complied with by the interposition of the court (b~). Accordingly the owner of a vessel, wlio had made a mortgage of it, and had repossessed himself of the bill of sale, was restrained from obtaining the certificate of registry, and from doing any act to prevent the mortgagee from procur- ing his bill of sale to be indorsed on the certificate (c). * 97 29. * Where a penalty or forfeiture is imposed by act of Parliament upon the doing or omission to do a cer- tain act, relief cannot be had in equity, but the court will see that the proceedings making the forfeiture have been regular and bond fide {dj. The same principle applies to cases of for- feiture founded on the customs of manors, and the general customs of certain kinds of estates such as copyholds, for in all these cases tlie forfieiture is treated as properly founded upon some positive law or some customary regulations, which had their origin in sound policy, and ought to be enforced for (2) Liverpool Borough Bank v. Tur- (c) 76. ner, IJ. & H. 159, 2 D. r.'& J. 502. \d) Nesbitt v. Tredennick, 1 B. & B. (a) See Lacon v. LiflFen, 4 Giff. 75 ; 29 ; Keating v. Sparrow, ib. 373, 374 ; Stapleton v Haymen, 2 H. & C. 918. Blennerhasset v. Day, 2 B. & B. (b) Thompson u. Smith, 1 Madd. 125; Hughes t;. Howard, 25 Bear. 395. 575. [102] CH. IT.] PENALTIES AND POBPEITURES. * 98 the general benefit (e). A court of equity has, however, a con- current jurisdiction with courts of law to relieve a copyholder against an illegal seizure of the copyhold property by the lord of the manor (/). 30. With respect to relief against forfeitures for breach of condition, the same considerations apply as are applicable to the case of forfeitures for breach of covenant. The general rule formerly was that a court of equity would interfere and relieve against the breach of a condition subsequent, provided it was a case admitting of compensation in damages (gf). But according to the modern doctrine of equity, relief is confined to cases where the value of the thing, for enforcing which the forfeiture is imposed, can be fully and completely estimated and compensated (A), and generally the omission and conse- quent forfeiture should be the result of inevitable acci- dent (t).^ If the omission *is wilful, relief will be * 98 denied (Jc)? Nor will relief be given where the condi- tion subsequent is followed by a limitation over to a third per- son in case the condition be not fulfilled, and there be a breach of it (J). Nor will forfeitures under a condition in law which do not admit of compensation, or forfeitures which may be considered as limitations of the estate, and which determine it, when they happen be relieved against (»i). If therefore a tenant for life makes a greater estate than his own, or if a tenant by copy affect to convey a greater estate than by law he (e) Peachy v. Duke of Somerset, 1 Eolfe v. Harris, ib. 207, n. Comp. Str. 447, 453 ; Pre. Ch. 568, 570, 574; Cage v. Russell, 2 Vent. 352; Barnar- Cox V. Higford, 2 Vern. 604 ; but see diston v. Fane, 2 Vern. 866 ; Grimston Nash V. Earl of Derby, 2 Vern. 537 ; u. Lord Bruce, ib. 594. Thomas v. Porter, 1 Ch. Ca. 95 ; Hill (k) Bracebridge v. Buckley, 2 Pri. V, Barclay, 18 Ves. 64. 200. Comp. Cage v. Russell, 2 Vent. ( f) Litton 's case, Cary, 8 ; Andrews 352. See per Lord Eldon, 19 Ves. V. Hulse, 4 K. & J. 392. 140. (g) Popham v. Bampfleld, 1 Vern. {I) Simpson v. Vickers, 14 Ves. 341. 83; Hay ward w. Angell, j6. 222 ; North- (m) Keating u. Sparrow, 1 B. & B. cote M. Duke, Amb. 512; Cage u. Rus- 373; Nesbitt v. Tredennick, ib. 29. sell, 2 Vent. 352. See Peachy v. Duke of Somerset, 1 Str. {h) Hill V. Barclay, 18 Ves. 56; 447. Bracebridge v. Buckley, 2 Pri. 200 ; ^ This subject is carefully discussed Rolfe V. Harris, ib. 207, n. See Cage in Henry v. Tupper, 29 Vt. 358. See also «. Russell, 2 Vent. 352; Woodman v. Harris «. Troup, 8 Paige, 425 ; Dunklee Blake, 2 Vern. 222; Barnardiston i;. «. Adams, 20 Vt. 415 ; Wells t;. Smith, Fane, ib. 366 ; Grimston v. Lord Bruce, 2 Edw. Ch. 78 ; Livingston t. Tomp- ib. 594. kins, 4 John. Ch. 431. (i) Hill V. Barclay, 18 Ves. 56 ; 2 Dunklee v. Adams, 20 Vt. 415. Bracebridge v. Buckley, 2 Pri. 200; [103] * 99 EQUITABLE ASSIGNMENT. [CH. IV. may, he forfeits his estate, and can have no relief in equity (w). 31. Conditions precedent must be literally performed. A court of equity will not vest an estate, where, by reason of the non-performance of a condition precedent, it will not vest at law. The court cannot relieve from the consequences of a condition precedent unperformed (o), unless the party who takes the estate on non-performance of the condition has used an indirect practice or contrivance to prevent its perform- ance (^). Infancy is not allowed as an excuse for not per- forming a condition precedent (g). 32. There is no equity, except under very special circum- stances, to restrain a man from committing a forfeiture. The court, for instance, would not restrain a man from forfeiting his life estate by not adopting the name and arms of a testa- tor (»•). The court has jurisdiction at the suit of a. share- holder to restrain a company incorporated by letters patent or royal cliarter, from doing an act which would occasion a for- feiture of the charter (s). *99 * SECTION IX. — EQUITABLE ASSIGNMENT. 1. Assignment of chose in action valid in equity. What constitutes such assignment. 2. Assignment of future acquired property valid in equity. 8. Notice to debtor of assignment necessary as against subsequent bondjide purchasers. 4. Assignments by oiEcers in the public service of pay and salaries not valid. 1. At common law, a possibility or chose in action is not assignable (<), but in equity, assignments of a mere possibility or chose in action for valuable consideration, are valid and (n) Peachy v. Duke of Somerset, ib. (q) Gary v. Bertie, 2 Vern. 338. (o) Popham v. Bampfield, 1 Vern. See Ledward v. Hassells, 2 K. & J. 83 ; Gary v. Bertie, 2 Vern. 333 ; Har- 370. vey V. Aston, 1 Atk. 361 ; Eeynish v. (r) Sample v. Holland, 33 Beav. 94. Martin, 3 Atk. 330 ; Scott ... Tyler, 2 (s) Kendall u. Grystal Palace Co., 4 Bro. C. G. 481. K. & J. 326. (p) Gary v. Bertie, 2 Vern. 342. (i) 10 Co. Rep. 48. rio4i CH. IV.] EQUITABLE ASSIGNMENT. 100 binding (u), and will be protected by injunction (a;). To con- stitute an equitable assignment, no particular form or words are necessary («/). Any order, writing, or act, which makes an appropriation of a fund amounts to an equitable assign- ment (s). An order by a debtor to his creditor upon a person owing money, or holding funds, or goods belonging to the giver of the order, directing such person to pay such moneys, or funds, or to deliver such goods to the creditor, operates in equity as an assignment of the moneys, funds, or goods to which the order refers (a). The consent of the party from whom the debt is due, or on whom the order is made to pay the moneys, or to deliver the goods, is not necessary (6). A mere mandate, however, by a principal to his agent, to pay over moneys to a creditor of the party giving the order, does not operate as an assignment, unless the order has been com- municated to the creditor (c). Nor does a mere power of attorney, or authority to a person to receive money, and direct- ing him to pay it to a creditor of the party giving the * authority, amount to an equitable assignment (cZ). *100 Where, however, a creditor in whose behalf a stake has been deposited by the debtor with a third person, receives notice of that fact from the stakeholder, the notice will convert the stakeholder into an agent for, and a debtor to, the credi- tor (e). 2. At law, a deed which professes to assign property which (u) Anon:, Freem. Ch. 144; Squib v. Ex parte South, 3 Sw. 393; L'Estrange Wyn, 1 P. Wms. 381. v. L'Estrange, 13 Beav. 281 ; Diplock v. (x) L'Estrange v. L'Estrange, 13 Hammond, 2 Sm. & G. 141, 5 D. M. & Beav. 281; Knight w. Bulkeley, 27 L. G. 320; Rayner v. Harford, 27 L. J. J. Ch. 592; Lloyd v. Eagle, 28 L. J. Ch. 709; Riccard v. Prichard, 1 K. & Ch. 389 ; Webster v. Webster, 31 Beav. J. 277 ; Jones v. Earrell, 1 D. & J. 208. 393 ; Marsh v. Peacock, 9 Jur. N. S. See Rodick v. Gandell, 1 D. M. & G. 789. 763, 778. (t/) Row V. Dawson, 1 Ves. 331 ; Mai- (6) Row v. Dawson, 1 Ves. 331 ; Ex colm V. Scott, 3 Ha. 39, 52. parte South, 8 Sw. 392 ; Morrell w.Woot- (z) Thompson v. Spiers, 13 Sim. ten, 16 Beav. 197. 469; Burn y. Carvalho, 4M. & C. 690; (c) Scott v. Porcher, 3 Mer. 652; Cook V. Black, 1 Ha. 390; M'Eadden Morrell u. Wootten, 16 Beav. 197. See Jenkyns, ib. 458, 1 Ph. 1.53; Mai- L'Estrange w. L'Estrange, 13 Beav. 281 ; colm V. Scott, 3 Ha. 39, 52, 6 Ha. 576 Swayne v. Swayne, 11 Beav. 466 L'Estrange v. L'Estrange, 13 Beav. 281 Glyn V. Hood, 1 Giff. 328; Webster Webster, 31 Beav. 393. (d) Rodick v. Gandell, 1 D. M. & G. ■Myers v.. United Guarantee, &c., Co., 7 763. See Bell v. North Western Rail- D. M. &G. 112;Lambe «. Orton, IDe way Co., 15 Beav. 548; Hohroyd v. G. & Sm. 128. Griffiths, 3 Drew. 428. (a) Burn v. Carvalho, 4 M. & C. 702 ; (c) Kirwan v. Daniel, 5 Ha. 500. [105] * 101 EQUITABLE ASSIGNMENT. [CH. IT. i is not in existence at the time of the assignment, is void (/). But in equity, if a man agrees to assign property of wliich he is not possessed at tlie time, and afterwards becomes possessed of property answering the description in the agreement, the beneficial interest in the property passes to tlie assignee imme- diately on the acquisition of the property (g'). If the assign- ment is by way of mortgage, and the assignor afterwards attempts to remove any part of ^uch property, except for the purpose of substitution, the mortgagee is entitled to an injunc- tion to restrain such removal (A). In order, however, that an agreement to assign after-acquired property may amount to an actual assignment, it must purport to confer an interest in the future chattels immediately by its own force, and without the necessity of a further act on the part of the assignee, upon the future' chattels coming into existence (i). 3. As between the parties themselves, an equitable assign- ment is binding without more : notice to the person on whom the order is made, or in whose hands the property lies, is not necessary (&). But as against purchasers for value the title is not perfect, unless notice of the assignment be given to the debtor, or other person who is in possession of the fund or property in question (J), or unless, at least, every thing * 101 be done that can be * reasonably expected to be done, in order to bring the fact to Ris knowledge (w). An equi- table assignment, not duly perfected by notice, will not prevail as against subsequent assignees for value, with notice to the person who is in possession of the fund or property to which the notice relates. If an assignee fail to give notice, and a (/) Eobinson v. Macdonnell, 5 M. & v. Gandell, 1 D. M. & G. 763 ; Wheatley S. 228. V. Bastow, 7 D. M. & G. 261, 278; {g) Curtis v. Auber, 1 J. & W. 526 ; Kinderley v. Jervis, 22 Beav. 1 ; Justice Metcalfe v. Archbishop of York, 1 M. v. Wynne, 12 Ir. Ch. 289. & C. 547 ; Wellesley v. Wellesley, 4 M. (I) Dearie v. Hall, 3 Russ. 1 ; Foster & C. 579; Douglas v. Bussell, 1 M. & v. Blackstone, 1 M. & K. 297, S. C, as K. 488 ; Langton v. Horton, 1 Ha. 549 ; Foster v. Cockerell, 9 Bligh, 332 ; Gard- Holroyd v. Marshall, 10 H. L. 191, ner v. Lachlan, 4 M. & C. 129 ; Meux 211 ; Brown v. Bateman, 36 L. J. C. P. v. Bell, 1 Ha. 73 ; Stocks v. Dobson, 4 134. D. M. & G. 11. See as to notice of (h) Holroyd o. Marshall, 10 H. L. assignment of freight, Browni;. Tanner, 191, 211, per Lord Westbury. 2 L. R. Eq. 806. (i) Reeve v. WMtmore, 83 L. J. Ch. (m) Etty v. Bridges, 2 Y. & C. C. C. 63. See Belding v. Read, 8 H. & C. 486 ; Feltham a. Cooke, 1 De G. & S. 955. 307 ; Langton v. Horton, 1 Ha. 549. (h) Cook i>. Black, 1 Ha. 390 ; Kodick [106] CH. IV.] EQUITABLE ASSIGNMENT. *102 subsequent assignee give notice, and neither the assignee giv- ing notice, nor the person in possession of the fund or prop- erty to wlaich the notice relates has, at the time of such notice being given, notice of the prior assignment, the assignee giving such notice obtains priority, although he may have advanced his money vrithout making any previous inquiry (w). 4. There are certain cases in which assignments of choses in action cannot, on grounds of public policy, be -sustained in equity. The pay and salaries of public officers payable to them for the purpose of supporting the dignity of their office, or to assure a due discharge of their duties, and in contempla- tion of future services, such as the pay, half-pay, and commis- sion of an officer in the army or navy (o), and the salaries of persons in the civil service (^), are accordingly not assigna- ble (5'). The same doctrine applies to the case of com- pensations granted to a * public officer on the abolition * 102 of his office, who, by the terms of the grant, may be required to return to the public service (r). But a man who is under no continuing duty to render future services may as- sign a pension given to him entirely for past services, whether granted to him for life or merely during the pleasure of others (s). A pension, however, is not assignable which has been granted as a perpetual memorial for public services (f). A pension granted to an officer or other person in the army, or his widow, has been declared not assignable by 47 Geo. III. (n) Dearie v. Hall, 3 Russ. 1 ; Lover- Palmer v. Bate, 6 Moo. 28, 2 B. & B. idge V. Cooper, ib. 30 ; Poster v. Black- 673. See Hill v. Paul, 8 CI. & Fin. 295. stone, 1 M. & K. 297, S. C. ; Foster v. Comp. Arbuthnot v. Norton, 5 Moo. R. Cockerell, 9 Bligh, 332 ; Meux v. Bell, C. 219. 1 Ha. 84 ; Browne v. Savage, 4 Drew. (q) See Davis v. Duke of Marl- 639; Wilson v. Gabriel, 4 B. & S. 243. borough, 1 Sw. 74; Wells v. Foster, 8 See as to questions' arising between a M. & W. 149. particular and statutory assignee, Barr's (r) Wells w. Foster, 8 M. & W. 149. Trust, 4 K. & J. 219 ; Re Vickre, 7 W. R. See Spooner ) . Objections to its form should be taken on demurrer when the court may give leave to amend, and not on motion to dissolve, an injunction (^). In a case where a bill was filed by the owner of an estate, subject to a rent-charge, against conflicting claimants, an affidavit of no collusion was not required (r). 41. If the plaintiff has parted with the possession of the property in dispute, a bill of interpleader cannot be sustained upon an undertaking to pay over the value of it to the party who shall be found entitled to it (s). Nor can the * 130 benefit of this species * of suit be obtained upon motion in a cause to which the stakeholder is a defendant. Ac- cordingly, where money in the funds was the subject of a suit to which the bank was a defendant, Lord Thurlow refused, upon the application of the bank, to make any order upon the litigat- ing parties to restrain them from proceeding at law against the bank to compel a transfer. He said they must apply by bill (0- 42. An interpleader bill is not demurrable because some of the defendants are out of the jurisdiction ; -but the plaintiff must use due diligence to get them all before the court in reasonable time. If he can show that he has done so, but has not succeeded, he will be decreed to give up the subject of dis- pute to the defendant who has appeared, and will be protected against the others by perpetual injunction (w). In a case where the subject was a policy on a cargo lost, an injunction (n) Gibbs v. Gibbs, 5 "W. E. 243. ( j) Wood v. Lyne, 4 De G. & S. 16 ; See Braith. 369. Hamilton v. Marks, 5 De G. & S. 638. (o) Bignold v. Audland, 11 Sim. 23; (r)' Vyvyan v. Vyyyan, 30 Beav. 65, Hamilton v. Marks, 5 De G. & S. 638. 31 L. J. Ch. 158. See Braith. 369; Great Southern and (s) Burnett u. Anderson, 1 Mer. 405. Western Kailway Co. v. Corry, 15 W. (t) Birch v. Corbin, 1 Cox, 144. R. 651. (u) Stevenson II. Anderson, 2 V. &B. (p) Mitf. PI. 60 ; Bignold v. Audland, 407. See Central Railroad of Georgia 11 Sim. 23. V. Mitchell, 2 H. & M. 452. [136] CH. IV. j INTERPLEADER. * 13 was granted to stay proceedings at law, although botl defendants resided abroad (x). So also, though one of th defendants has not appeared to the bill, and the usual proces of contempt has been gone through («/), or if one of them doe not appear at the hearing, a decree will be made (a). ' 43. A defendant who has put in his answer may, if any dela; shall occur on the part of the codefendants in putting in thei answers, move to dissolve the injunction, or to have the subjec of interpleader delivered up, as the casS may be, on notice t the plaintiff and his codefendants («). If the codefendant have put in their answers, an inquiry may be directed as to th respective titles (6). But such inquiry cannot be directei until they have put in their answers, or the bill is taken pr confesso against them (c). A defendant who seeks for further dplay * must satisfy the court that the case can- * 13! not be put in a course for determination without further delay (d). 44. The interpleading plaintiff proceeds with the suit in th usual way, sets down the cause, and brings it to a hearing (e) It is not necessary for the defendants to enter into evidenc against each other (/). If at the hearing the question betweei the defendants is ripe for decision, the court will decide it ; bu if it is not ripe for decision, an inquiry will be directed (^) But the more usual way is to obtain the direction at an earlie stage (A). A defendant may. show at the hearing that the casi is not one for interpleader («'). 45. If an interpleading bill has been properly instituted, an( a case for interpleader is made out, the plaintiff is entitled, i (x) Martinius v. Helmuth, Coop. 245. East and West India Dock Co. v. Little iy) Fairbrother v. Prattent, Dan. 64, dale, 7 Ha. 57.' 5 Pri. 303. See Hyde u. "Warren, 19 (d) East and West India Dock Cc Ves. 322. „. Littledale, 7 Ha. 57. Iz) Hodges V. Smith, 1 Cox, 857. (e) Jones v. Gilham, Coop. 49. (a) Hyde v. Warren, 19 Ves. 321 ; ( f) Thames and Medway Canal Cc Stevenson v. Anderson, 2 V. & B. t>. Nash, 5 Sim. 280 ; Catherall w. Davief 407 ; Townley v. Deare, 3 Beav. 216 ; 1 Giff. 326. Masterman !). Lewin, 2 Ph. 182; East (g) See Angell v. Hadden, 16 Ves and West India Dock Co. v. Littledale, 203; Townley v. Deare, 3 Beav. 216 7 Ha. 57. Crawford v. Fisher, 1 Ha. 436, 441 (6) Masterman v. Lewin, 2 Eh. 142 ; Bruce v. Elwin, 9 Ha. 294, ib. Townley v. Deare, 3 Beav. 216. (h) Crawford v. Eisher, 1 Ha. 486 (c) Masterman v. Lewin, 2 Ph. 182; Townley v. Deare, 3 Beav. 216. (i) Toulmin i: Reed, 14 Beav. 499 [137] * 132 PERPETUAL INJUNC;riON. [CH. IV. there be a fund in court, to have his cost paid out of it (A). If there is no fund in court, costs will be given against the party who occasioned the suit (Z). Costs will not, however, be allowed of any proceedings which may have been taken in the suit that are productive of needless expense (m). If the case for a bill fails, it will be dismissed with costs as against the plaintiff (n), except the suit has been adopted by the defend- ants, in which case plaintiff will be allowed his costs (o). If the case for interpleader is partly made out and partly fails, the bill will be dismissed with costs as against the * 132 defendant who is * successful, bat without costs as against the defendant who occasioned the suit (jp). The costs of the defendants do not necessarily follow the result of the suit, but are in the discretion of the court (cj). Sometimes no costs will be given on either side (r). At other times one defendant will be allowed his costs against another (s) , On dismissal of a bill, the court cannot decree costs as against a defendant whose misconduct occasioned the suit (f). Perpetual Injunction. 46. The jurisdiction bjr perpetual injunction is founded on the equity of putting a bound to harassing and vexatious litiga- tion. If the court is of opinion at the hearing that the plain- tiff has established a case which entitles him to an injunction. (i) Aldrich'u. Thompson, 2 Bro. C. Glynn w. Locke, 3 Dr. & War. 11; Des- C. 149 ; Hodges v. Smith, 1 Cox, 357 ; borough v. Harris, 5 D. M. & G. 439. Paris V. Gilham, Coop. 56 ; Cowtan v. iq) Meux v. Bell, 1 Ha. 73, 98. Williams, 9 Ves. 107 ; Campbell v. \r) lb. See Cook v. Earl of Kosslyn, Salomons, 1 Sim. & St. 462. 1 Giff. 167. (I) Aldridge v. Mesner, 6 Ves. 419 ; (s) Cowtan v. Williams, 9 Ves. 107 ; Glynn W.Locke, 3 Dr. & War. 11; Coch- Mason v. Hamilton, 5 Sim. 19; Fenn . rane v. O'Brien, 2 J. & L. 380. v. Edmunds, 5 Ha. 314 ; Jaeobson v. (m) Sievekiug v. Behrens, 2 M. & C. Blackhurst, 2 J. & H. 486. 581; Crawford v. Eisher, 1 Ha. 436; (t) Cochrane i;. O'Brien, 2 J. & L. 380. Symes v. Magnay, 20 Beav. 47 ; Hale See further on the subject, Morg. & V. Saloon Omnibus Co., 4 Drew. 492 ; Davy on Costs, 152-155. See, as to Jaeobson v. Blackhurst, 2 J. & H. 486. orders and decree in an interpleading (n) Cochrane v. O'Brien, 2 J. & L. suit, Seton on Decrees, p. 962 ; Hodges 380; Cook u. Earl of Eosslyn, 1 Giff. u. Smith, 1 Cox, .357 ; Hoggart w. Cutte, 167. Cr. & Ph. 197 ; Glynn v. Locke, 3 Dr. (o) Myers v. United Guarantee So- & War. 25 ; Smith v. Hammond, 6 Sim. ciety, 7 D. M. & G. 112. 12 ; Fennw. Edmunds, 5 Ha. 314 ; Bruce (p) Hoggart V. Cutts, Cr. & Ph. 197 ; v. Elwin, 9 Ha. 294. Cochrane v. O'Brien, 2 J. & L. 380 ; [138] CH. IV.J PERPETUAL INJUNCTION. * 133 or if a bill praying for an injunction is taken pro confesso, a perpetual injunction will be decreed (w). Where, for instance, there has been a decree for the performance of trusts, a defend- ant will be perpetually enjoined from setting up a legal estate against that decree (jc). So also where two trials had been had at bar under the direction of the court, and verdict for the plaintiff had been found in both, a perpetual' injunction was granted (z/). It may indeed be stated as a general rule that if an equitable case for restraining proceedings at law be presented to the court, a perpetual * injunction will be * 133 granted whenever it is necessary for the purposes of complete justice (z). A perpetual injunction is in effect a decree. It is final, and need not be revived on the death of either of the parties in order to be kept on foot (a). As a general rule, an injunction can only be made perpetual at the hearing of the cause (F). 47. It has been said that the court will not bind the inherit- ance upon one verdict only (c). Lord Northington, however, in the case of Darlington v. Bowes (d), expressed great dis- approbation of the rule, and inquired if there was any instance of a decree upon one verdict only, observing that he thought there were some old ones, and that if any could be found he would certainly refuse the application before him for a new trial, but as none was produced the order was made. There is a case before Lord Clarendon in which a decree was made upon one verdict, and though it was disapproved of by Lord Keeper North, (e) yet there is a note in Viner which supports (u) Gilb. For. Rom. 194; Knight w. L. 24; Hudson v. Temple, 29 Beav. Adamson, 2 Freem. 106 ; Selby v. Selby, 536. 2 Dick. 678. (o) Askew v. Townsend, 2 Dick. (x) Aeherley v. Vernon, 2 Eq. Ca. 471. Ab. 527; Selby v. Selby, 2 Dick. 678; (6) Day v. Suee, 3 V. & B. 170. See Askew V. Poulterers' Co., 2 Ves. 90. infra. iy) Leighton v. Leighton, 1 P. Wms. (c) Fittou v. Lord Macclesfield, 1 671, 4 Bro. P. C. 378 ; Davies v. Evans, Vem. 292 ; Edwin v. Thomas, 2 Vern. 4 De G. & S. 440. 75 ; Leighton v. Leighton, 1 P. Wms. [z) Blad V. Bamfield, 3 Sw. 604; 671; Lord Fauconberg v. Price, Amb. Burrows v. Jemineau, 2 Eq. Ab. 524 ; 210 ; Lord Sherborne v. Naper, cit. Durston v. Sandys, 1 Vern. 411 ; Web- 4 Ves. 206 ; Bates v. Grares, 2 Ves. Jr. ber V. Farmer, 4 Bro. P. C. 170 ; Gierke 287. V. Moore, ib. 723 ; Hanington v. Du id) 1 Eden, 270. Chatel, 1 Bro. C. C. 124; Wilde v. c) Fittou v. Lord Macclesfield, 1 Ashley, 2 Jur. 679; Meux v. Smith, 7 Vern. 292. Jur. 821 ; Taylor v. Hughes, 2 J. & [139] * 134 PERPETUAL INJUNCTION. [CH. IV, it(/). The same thing was done in Lowe v. Jolliffe (5'). There had been a verdict in favor of a will in dev. vel non,ani a decree in the cause in chancery establishing the trusts of the will, and they had under the same decree been carried into effect. The heir-at-law having afterwards made his will and died, his devisee brought ejectment, upon which the devisees under the first will filed a bill for an injunction to restrain him from proceeding at law, and a perpetual injunction was decreed upon the hearing. The sound doctrine on the subject would seem to be that no general rule should be laid down as *134 to whether a perpetual injunction * should or should not be granted after a single trial at law. The question should depend in all cases upon the fact whether the conscience of the court is satisfied as to the result of the trial, and not on the number of trials which may have taken place (A). A non- suit at law is to be regarded in the same light as a verdict. Where a man had elected to be nonsuited, and there was rea- son to conclude that the action had failed on the merits, the court restrained him from proceeding further at law (z). 48. In many eases the courts of ordinary jurisdiction admit, at least for a certain time, of repeated attempts to litigate the same qiiestion. To put an end to the oppression occasioned by the abuse of this privilege, courts of equity have assumed jurisdiction by perpetual injunction. Thus, actions of eject-, ment being the usual mode of trying titles at common law, and judgments in these actions not being in any degree conclu- sive, courts of equity will interfere, and after repeated trials and satisfactory determinations of questions, grant perpetual injunctions to restrain further litigation (A). The leading case on the subject is that of the Earl of Bath v. Sherwin (I), where, after five verdicts in favor of the plaintiff, a bill was filed for a perpetual injunction. Lord Cowper, though satisfied of the vexatious nature of the litigation, yet being unwilling to inter- (/) Wilson V. Story, 14 Vin. Ab. chaster, 2 W. E. 644 ; Swinfen v. Swin- 481. feu, 27 Beav. 152; Boyse ;;. Russborough, (g) Dick. 388. 6 H. L. 43. (A) See Stace v. Mabbott, 2 Ves. (i) Allen v. Daris, 20 L. J. Cli. 44 ; 552 ; Thomas v. Jones, 1 Y. & C. C. C. Llewellin v. Pace, 1 W. R. 28. 527 ; Dawson v. Paver, 5 Ha. 415, 4 Ik) Mitf. PI. 167. Ea. Ca. 85 ; Bennett v. Duke of Man- (I) Prec. Ch. 261, Gilb. Eq. Eep. 2. [140] CH. IV.J PERPETUAL INJUNCTION. * 135 pose in a case where the title was purely legal, refused to decree an injunction, but recommended it to the plaintiff as a case proper for the House of Lords, and on an appeal a per- petual injunction was decreed (m). Upon this authority a perpetual injunction was decreed in the case, of Barefoot v. Fry (n), where the defendant had brought five ejectments, and had been nonsuited upon full evidence in three of them, and had verdicts against him in the other two (o)-^ 49. In cases where there is one general common right to be established against several or a number of distinct per- sons, * whether one person claims or defends a right * 135 against many, or many claim or defend a right against one, a court of equity will interpose in order to prevent multi- plicity of suits, and instead of suffering parties to be harassed by a number of separate suits, each of which only decide the particu- lar right in question between the plaintiff and the defendant to it, it will at once determine the right by ,a decree, having previously, if necessary, directed an issue for its information (p).^ It is no objection to the bill that the plaintiffs may each claim a right against one defendant, or several defendants may each have a right to make a separate defence against the claim of one plaintiff, provided there be only one general question to be settled which pervades the whole. It is enough that there is one general question as between the one plaintiff and the several defend- ants, or the one defendant and the several plaintiffs (_q). If the parties are so numerous that it is impracticable to bring them all before the court, a bill may be filed against some of the parties, provided so many persons are made parties that their interests shall be such as to lead to a fair and honest sup- port of the common interest ; and when a decree has been m) 4 Bro. P. C. 373. another, on the ground that such suits n) Bunb. 158. would be vexatious, cannot be main- o) See Leighton v. Leighton, 1 P. tained unless the title to the land in Wms. 670. dispute has been fully and satisfactorily (p) Teynham v. Herbert, 2 Atk. 484, litigated at law ; the institution of re- Mitf. PI. 169 ; SheflBeld Waterworks v. peated ejectment suits, if the same are Yeomans, 2 L. R. Ch. App. 8. abandoned before trial, cannot furnish a (q) Powell V. Powis, 1 Y. & J. 161 ; foundation for the maintfenance of a bill Lord Sefton v. Salisbury, 7 W. R. 272 ; of peace to restrain vexatious litiga- Sheffield Waterworks v. Yeomans, 2 L. tion. Patterson v. McCamant, 28 W«. E. Ch. App. 8. 210. ^ A bill of peace to restrain a person 2 McKoberts v. Washbume, 10 Minn, from instituting ejectment suits against 23. [141] * 136 PERPETUAL INJUNCTION. [CH. IV. obtained with respect to tlie individual whose interest is fully and fairly established, the court ou the footing of the former decree will carry the benefit of it into execution against other individuals who were not parties (r). Actions by individuals which go merely to establish their own private right and not the common or public right of all, cannot be accepted as bind- ing the public right. The court must have such a clear find- ing of a jury as will enable it with satisfaction to itself to make a declaration as to their right binding on them and all other persons (s). 50. A bill of this nature may be brought by a lord against tenants for an encroachment, or by tenants against the * 136 lord for * disturbance (0 J by a party in interest to establish a toll due by custom (w) ; or his right to the profits of a fair, there being several claimants (a;). So also where a right of fishery was claimed by a corporation through- out the course of a considerable river, and was opposed by the lords of manors and riparian proprietors, a bill was entertained to establish that right against the several opponents, and a de- murrer was overruled (y). So also a bill of the sort will lie to settle the amount of a general fine to be paid by all the copyhold tenants of a manor. So also it will lie to establish a right of common of the freehold tenants of a manor (2). 51. The claim to an exclusive right of fishery, set up against the common right of the public, is one which, if clearly estab- lished in point of fact, would give a man a right to ask for the interference of a court of equity, by perpetual injunction (a). So also the owner of a ferry franchise may come to the court ()■) VITeale w. West Middlesex Water- («) City of London w. Perkins, 3 Bro. works Co., 1 J. &. W. 368; Adair v. P. C. 602. New River Co., 11 Ves. 429 ; Alien v. (x) Ewelme Hospital v. Andover, 1 Donnelly, 5 Ir. Ch. 236. See Foxwell Vern. 266. V. Webster, 10 Jur. N. S. 137. (y) Mayor of York v. Pilkington, 1 (s) Allen V. Donnelly, 5 Ir. Ch. 236. Atk. 282. See Ashworth .;. Browne, (t) How V. Bromsgrove, 1 Vern. 22 ; 10 Ir. Ch. 421. Weeks v. Staker, 2 Vern. 801 ; Arthing- (s) Middleton v. Jackson, 1 Ch. Eep. ton V. Fawkes, ib. 356. See Lord Bath 18 ; Popham v. Lancaster, ib. 51 ; Cow- V. Sherwin, Preo. Ch. 261 ; Lord Teyn- per v. Clark, 3 P. W. 157 ; Powell v. ham V. Herbert, 2 Atk. 484 ; Hanson Powis, 1 Y. & J. 159. V. Gardiner, 7 Ves. 309 ; Powell u. (a) Allen v. Donnelly, 5 Ir. Oh. Powis, 1 Y. & J. 161. 236 ; Ashworth v. Browne, 10 Ir. Ch. 421. [142] CH. IV.] PERPETUAL INJUNCTION. ^136 to be quieted in his right (J). But, as a general rule, the court will not establish a decree or perpetual injunction for the enjoyment of a right in contradiction to the public right, as if a man claims an exclusive right to a highway, or to obstruct the navigation (c). 52. A bill of the sort cannot be maintained where a right is disputed between two persons only, and the decree cannot con- clude any one except them (cZ). A bill of peace will lie against the lord by one copyholder on behalf of himself and the other copyholders to have their rights of common ascertained, but one copyholder not suing on behalf of all cannot maintain the suit (e). (6) Letton v. Gooden, 2 L. E. Eq. 123. (c) Hilton V. Lord Scarborough, 2 Eq. Ca. Ab. 171, Mitf. PI. 171. See Allen V. Donnelly, 5 Ir. Ch. 236. (d) Lord Teynham v. Herbert, 2 Atk. 483 ; Cowper v. Clark, 3 P. W. 157 ; Welby v. Duke of Rutland, 2 Bro. P. C. 39. (e) Philipps V. Hudson, 2 L. I?. Ch. App. 243. As to bringing suit to remove a cloud upon a title, see Scott v. Onder- .donk, 14 N. Y. 9 ; N. Y. & N. Haven E. E. Co. y. Schuyler, 17 N. Y. 592; and Wood v. Seeley, 32 N. Y. 105, where the court say the jurisdiction is not confined to any particular class of instruments if the invalidity does not appear upon their face. " Whatever their character, if they are capable of being used as a means of vexation or annoyance, if they throw a cloud upon the title or disturb the tranquil enjoyment of property, then it is against conscience and equity that they should be kept outstanding and ought to be cancelled." Where one pur- chased land under a contract for a conveyance with warranty of title, when he had completed the payment of the purchase-money, and knew that it was subject to an incumbrance, it was held, that he could not maintain a bill in equity to compel the executor and heir of the vendor to remove the incumbrance or provide indemnity for the vendee. Eefeld v. Woodfolk, 22 How. U. S. 318. [143] * 137 INJUNCTIONS AGAINST PROCEEDINGS AT LAW, ETC. [CH. T. *137 * CHAPTER V. INJUNCTIONS AGAINST PEOCBBDINGS AT LAW UPON AND IN RESPECT OP POKBIGN JUDGMENTS. 1. Court of Chancery has jurisdiction to restrain persons from acting on judgments of foreign courts. 2. Judgments of foreign courts, whether in rem or personam, disregarded, if the court giving it had no jurisdiction, or the forms of the court were grossly abused. 1. The Court of Chancery has jurisdiction to restrain persons from suing on, or from acting on, judgments delivered by foreign courts (e). If the proceedings in the foreign courts were in rem, the judgment is conclusive here, andbindiiig upon persons who were not before the court. The jxidgment cannot be questioned, even upon the ground that the foreign court had proceeded upon an erroneous notion of the law of England. Unless a case of perverse or intended disregard of the law of England can be made out iu a case properly subject to that law by the comity of nations, a foreign judgment in rem will not be disregarded here (/). If, however, the proceedings were in personam, they are not binding here upon persons who were not summoned or made parties to the suit (g-). The court here will examine the judgment for the purpose of ascer- taining the fact (A). But a foreign judgment in personam is conclusive here, if the court which pronounced it had jurisdic- tion over the subject-matter of the suit, and the person against whom it is sought to be enforced (i). The judgment cannot be impeached on the ground that it is erroneous on the * 138 merits (/c). Defences which might * have been raised (e) Bowles v. Orr, 1 Y. & C. 464 ; (h) Reimere u. Druce, 23 Beav. 146. Simpson v. Togo, 1 J. & H. 18, 1 H. & ({) Eicardo v. Garcias, 12 CI. & Fin. M. 195. 368 ; Sheehy v. Professional Life As- (/) Imri V. Castrique, 8 C. B. IjT. S. surance Co., 3 C. B. N. S. 597; Simp- 405 ; Simpson v. Fogo, 1 H. & M. 195. son v. Fogo, 1 H. & M. '195 ; Vanque- See Cammell v. Seweli, 6 H. & N. 728. lin v. Bouard, 38 L. J. C. B. 78. (g) Buchanan v, Rucker, 9 East, 192 ; (/c) Bank of Australasia v. Nias, 16 Bank of Australasia v. Nias, 16 Q. B. Q. B. 717 ; De Cosse Brissac v. Eath- 717 ; Castrique v. Imri, 8 C. B. N. S. 1 ; bone, 6 H. & N. 301 ; Scott v. Pilking- Simpson v. Fogo, IJ. & H. 18. ton, 2 B. & S. 11 ; Simpson v. Fogo, 1 H. & M. 195. [144] CH. v.] UPON AND IN RESPECT OP FOREIGN JUDGMENT. * 139 in the foreign court cannot be brought here for the purpose of setting aside the judgment (I). But the court here may examine the judgment with reference to any thing that appears on the face of it ; and if it appears on the face of the judgment that it proceeded upon principles not recognized by natural justice (m) or the law of England (n), or that the foreign court, while professing to administer English law, had been, in fact, mistaken as to the law (o), the judgment will be disregarded (p). The reasons which are attached to the judgment are part of the record, and will be treated as an in- tegral part of the judgment (q). If the judgment of the foreign court can be shown to have been founded upon a per- verse or intended disregard of the law of England, in a case properly subject to that law by the comity of nations, the case is much stronger than where there has been merely a mistaken notion as to English law (r). In Simpson v. Fogo (s), a British ship had been duly mortgaged in England. After- wards she went to New Orleans, and was attached by the credi- tor? of the mortgagor. The mortgagee intervened in the suit, but the court wholly disregarded his title, the law of Louisiana not allowing of mortgages of chattels, and the ship was sold, under a decree of the court, to the defendant. The ship hav- ing been brought to England, the mortgagee filed his bill to restrain the vessel from leaving Liverpool without his consent, and generally to establish his claim. A demurrer to the bill was overruled (t'). The judgment of a foreign court, whether in rem or perso- nam, will, it would seem, be disregarded here, if it can be * shown that the court which pronounced it had no juris- * 139 diction in the matter (m), or that the judgment had been (l) Vanquelin v. Bouard, 33 L. J. C. appeal, 3 Jur. N. S. 229 ; Simpson v. B. 78.' Fogo, 1 H. & M. 195. (m) Buchanan v. Rucker, 9 East, 192; (p) See Scott v. Pilkington, 2 B. & S. Price V. Dewliurst, 8 Sim. 279 ; Paul v. 11. Roy, 15 Beav. 440; Bank of Austral- {q) Eeimers v. Druce, 23 Beav. 154; asia V. Nias, 16 Q. B. 717 ; Sheehy v. Simpson v. Fogo, 1 H. & M. 195. Professional Life Assurance Co., 3 C. (r) Simpson v. Fogo, ib. B. N. S. 597 ; Simpson v. Fogo, 1 H. & (s) IJ. & H. 18. M. 195. (i) See S. C. 1 H. & M. 195. • (n) Bank of Australasia v. Nias, 16 (u) See Havelock v. Rockwood, 8 T. Q. B. 717. R. 268; Bowles v. Orr, 1 Y. & C. 464; (o) Novelli V. Rossi, 2 B. & Ad. 757 ; Castrique v. Imri, 8 C. B. N. S. 1. Eeimers v. Druce, 28 Beav. 154; on 10 [145] * 139 INJUNCTIONS AGAINST PROCEEDINGS AT LAW, ETC. [CH. V. obtained through any gross abuse of the forms of the court (x). In Bowles v. Orr (y), proceedings upon a foreign judgment in personam were restrained upon the ground of fraud, but the authority of the case is doubtful (s). The principles upon which the courts of tliis country deal with foreign judgments are better and more satisfactory than they were at the time when the judgment in Bowles v. Orr was delivered. Whatever may be the value of that case as an authority at the present day, it seems clear that the courts of this country will not in- terfere with foreign judgments on the ground of fraud, where the fraud might have been pleaded as a defence in the foreign court, and was not pleaded, or was, if pleaded, overruled (a).i The question, however, remains open how far the courts of this country will interfere with foreign judgments where evidence of fraud may have been discovered after the date of the judg- ment (5). The court will not carry into effect the interlocutory decree of a foreign court (c). (x) Imri V. Castrique, 8 C. B. N. S. 405 ; Castrique v. Behrens, 30 L. J. Q. B. 163. See 2 Smith, L. C. 684. iy] 1 Y. & C. 464. iz) See Castrique v. Belirens, 30 L. J. Q. B. 163 ; Vanquelin v. Bouard, 33 L. J. C. B. 78. la) lb. [b] See as to setting aside judgments obtained by fraud, Shedden v. Patrick, 1 Macq. 635. (c) Paul V. Roy, 15 Beav. 436. See Ball V. Storie, 1 Sim. & St. 210. 1 " Tile only question of fraud whicliis open to examination in a court of equity as a ground for enjoining the judgment of any court having jurisdiction of the case, whether domestic or foreign, is such as intervened in the proceedings by which the judgment was obtained." Story's Eq. Jur., § 1582. ri46] CH. VI.J INJUNCTIONS IN EESPKCT OF AWARDS. * 140 * CHAPTER VI. *140 INJUNCTIONS IN RESPECT OP AWARDS. 1. Courts of equity have jurisdiction over awards unless excluded by statute. 2-7. Formerly, wliere submission was by agreement between parties, equity only mode of relief from fraud of arbitrator. Practice under statutes. 8. Arbitrator may be restrained from making an award. 9. Agreement for reference does not oust the jurisdiction of the court. 10. Laches destroys right to relief. « 1. Courts of equity have always exercised jurisdiction over awards (d), and still entertain the jurisdiction, except where it is excluded by statute (e).i 2. In cases where the submission to arbitration was by agreement between the parties, the only mode of obtaining re- lief formerly against an award which had been obtained under circumstances of fraud or corruption on the part of the arbi- trator, was by bill in equity. But if the agreement or submis- sion to arbitration be in writing, and contains a proviso that it may be made a rule of court, the case is now governed by statute 9 & 10 Will. 3, c. 15, and the jurisdiction of equity is excluded (/). If there be such a proviso in the agreement or submission to arbitration, it is immaterial that it may not have been actually made a rule of court until after the award has been made or until after bill filed ( upon a sum- mary application, may restrain the prosecution of any such suit, although it has not been made a condition of the order that no suit shall be brought. But as, upon such an application, tliis court may afford the injured person redress here, the party who wishes this court to take the matter into its own hands and restrain all proceedings else- where, should seek the aid of this court promptly, and before he has tried the chances of a litigation of the matter in another tribunal." Mackay v. Blackett, 9 Paige, 437. (k) lb. {I) Frowd V. Lawrence, 1 J. & W. 655 ; Philipps v. Worth, 2 R. & M. 638 ; Brandon v. Brandon, 1 L. J. Ch. N. S. 172; Bricknell v. Stamford, 1 Beav. 368 ; Walker v. Micklethwait, 1 Dr. & Sm. 51. See as to the principle upon which damages are to be ascertained, Moore v. Moore, 25 Beav. 8 ; see also Darley v. Nicholson, 2 Dr. & War. 86. (m) Walker v. Micklethwait, 1 Dr. & Sm. 51 ; but see Philipps v. Worth, 2 R. & M. 638 ; Bricknell v. Stamford, 1 Beav. 369. [153] * 146 INJUNCTIONS AGAINST PROCEEDINGS AT LAW [CH. Til. person, however good his right may be (w). If a party claim- ing a right in the same subject-matter was in possession of the right which he claims at the time the receiver was appointed, the appointment of the receiver leaves him in such possession ; if, on the other hand, the claimant was out of possession, he must apply to the court for leave before he institutes any legal proceedings affecting the possession which the receiver has acquired (o).^ A man who thinks he has a right paramount to that of the receiver must, before he presumes to take any steps of his own motion, apply to the court for leave to assert his right against the receiver. The court will not allow the first step in an action at law to be taken against a receiver by anybody without an application to the court for leave (j?) ; nor will it allow payment to him to be intercepted, although the order appointing him may have been perfectly erroneous (g). It is not competent to the sheriff to impugn the order * 146 appointing * a receiver, or to seize property in his pos- session (r) ; nor can a railway company proceed under the Lands Glauses Act to take without the leave of the court lands in the possession of a receiver (s) ; nor can a receiver appointed to get in property, part of which he finds in the pos- session of another receiver, take proceedings to deprive the latter of such possession without the authority of the court (t). Whether the party proceeding at law did or did not know that a receiver has been appointed over property, or however clear the right of the claimant may be, the court will restrain the prosecution of the claim, if it be instituted without leave (u). In Turner v. Turner (a;), the agents of the receiver in a cause, acting under leave of the court, having taken forcible posses sion of a house occupied by a servant of one of the defeud- (n) Evelyn v. Lewis, 3 Ha. 472; (s) Tint w. Bundle, 10 Beav. 318. Defries v. Creed, 34 L. J. Ch. 607. i) Ward v. Swift, 6 Ha. 312. (o) Evelyn v. Lewis, 3 Ha. 472. («) Evelyn w. Lewis, 3 Ha. 473. See Randfleld a. Randfield, 1 Dr. & {xj 15 Jur. 218. Sm. 310. 1 In matter of Merritt, 5 Paige, 125. (p) Evelyn v. Lewis, 3 Ha. 472 ; And the court appointing the receiver Hawkins v . Gathercole, 1 Drew. 12 ; has jurisdiction to restrain him from Ames V. Birkenhead Docks, 20 Beav. prosecuting an unjust and vexatious 358. suit at law, in the name of a third {g) Ames u. Birkenhead Docks, 20 person without his consent, although Beav. 353. the persons applying for such relief are (r) Kussell v. East Anglian Railway not parties to the suit in wliich the Co., 3 Mac. & G. 117. receiver was appointed. lb. [154] CH. VII.] AGAINST OE BY THE OFFICERS OP THE COUET. * 147 ants, an order was made restraining that defendant frpm prosecuting an indictment against tlie agents. An action against a person who professes to act under tiie authority of a receiver, will not be restrained, unless it be clear that he was acting under authority (y). The court will always, on a proper application being made, take care to give a party who has a right paramount to that of the receiver the means of ob- taining justice, and will even assist him in asserting that right and having the benefit of it (2). Leave may be given to bring ejectment (a). 3. A sequestrator in possession is an officer of the court ; his possession may not be disturbed without the leave of the court (5). If a sequestrator has been foi'cibly dispossessed, an injunction to restore possession will be awarded, and the party * so dispossessing him will be committed * 147 for contempt (c). If a sequestrator finds a person in possession of the property, the court will order a writ of as- sistance to issue, unless the party submit to come in and be examined pro inter esse suo (oT). Where a sequestrator obtains possession of property as belonging to the party against whom the process issued, and such property is claimed by a third person, the mode of trying the right is in the discretion of the court (e). 4. A sheriff acting under a writ of fi.fa. issued by the court is not an officer of the court. The rules which apply to the protection of the officers of the court do not apply to him (/). 5. The court of chancery assumes in many cases jurisdic- tion over its own officers, as such, to restrain them from seek- (y) Birch v. Oldis, Sau. & Sc. 146. Kaye v. Cunninghame, 5 Madd. 406. (z) lb. ; Hawkins v. Gathercole, 1 See Eock v. Cook, 2 Ph. 691. Drew. 12 ; Eussell v. East Anglian (c) Pelham v. Duchess of Newcastle Eailway Co., 3 Mac. & G. 104 ; Ames 3 Sw. 289, n. ; Angell v. Smith 9 Ves V. Bu-kenhead Docks, 20 Bear. 353; 336. Randfield v. Randfeld, 1 Dr. & Sm. (d) Empringham v. Short, 3 Ha. 310. 46i. (a) Brooks v. Greathead, 1 J. & W. (e) lb. ; see also as to sequestra- 179 ; see also as to interference with tion, Wilson v Metcalfe, 1 Beav. 263 ; the possession of a receiver, Broad v. Tatham v. Parker, 1 Sm. & G. 506 ; Wickham, 4 Sim. 511 ; De Winton v. Knight v. Knight, 4 W. E. 771. Mayor of Brecon, 28 Beav. 202 ; Lane (_/) Eock v. Cook, 2 Ph. 691 ; Try V. Sterne, 3 Giff. 629. v. Try, 13 Beav. 422. See Tufton v. (6) Angell v. Smith, 9 Ves. 336; Harding, 29 L. J. Ch. 225. Comp. Brooks V. Greathead, 1 J. & W. 178 ; Eussell v. East Anglian Eailway Co 3 Mac. & G. 104. [155] * 147 INJUNCTIONS AGAINST PROCEEDINGS AT LAW, ETC. [CH. Til. ing redress in any other courts. Thus a man, who had been employed as an auctioneer in a sale directed by the court, by the committees of a lunatic's estate, and had carried in his claim before the Master, was restrained from bringing an action at law against the committees, the claim arising in the course of an employment under a lunacy, and for the purpose of car- rying into effect the directions of the court in the lunacy being properly, in the absence of any special agreement to the con- trary, the subject of an inquiry before the Master (^). So also, where commissioners for the examination of witnesses brought actions against the solicitor for fees claimed by them in respect of their business as commissioners, the court said the case was not distinguishable from Re Weaver, and re- strained them referring it to the Master to inquire what was due to them for their fees (A). (9) Re "Weaver, 2 M. & C. 441. Beav, 43. See Peters v. Beer, 14BeaT. (A) Blundell w. Glaastone, 9 Sim. 101. 455; Ambrose v. Dunmow Union, 8 [156] CH. VIII.] INJUNCTIONS TO STAY PROCEEDINGS, * 148 * CHAPTEE VIII. * 148 INJUNCTIONS TO RESTRAIN PROCEEDINGS IN THE ADMIRALTY COURT, THE LORD mayor's COURT, THE PROBATE COURT, AND THE COURTS OP A FOREIGN COUNTRY. 1. Court of equity has jurisdiction to restrain parties from proceeding in courts other than those of common law. 2. Extent to which it will act upon matters in admiralty courts. 3. Will not interfere, however, unless to do so would be a sound exercise of its discretion. 4-6. Will restrain proceedings in ecclesiastical courts. 7-9. And in Lord Mayor's Court, county courts, and special tribunals. 10. Will not in general interfere with proceedings in courts of bankruptcy. IL May restrain persons in its jurisdiction from prosecuting suits in courts of foreign countries. 12. But will not destroy any priority to which, from the nature of his security, a creditor in a foreign country is entitled as against the assets there, according to the law of that country, although they come to be distributed here. 13. Where the court is in possession of a cause, and has power to do justice, it will restrain the parties from proceeding in courts of a foreign country, 14. Even though no decree has been obtained in this country, if a suit here, is best cal- culated to do justice. 15. But if more conduciTC to substantial justice, the foreign proceedings will be allowed to go on. 16. Proceedings in respect to a contract made here, in a foreign court, not in accordance with the rules of English law will be restrained. 17. Action here may be restrained to await decision of foreign court. 18. Limits of the jurisdiction to restrain actions and suits in other countries. 19. If court is in full possession of cause, injunction will be granted on motion, otherwise on bill. 1. The jurisdiction of the court of chancery by injunction is not confined to the staying of proceedings in the courts of common law. The court has clear and undisputable jurisdic- tion, on a proper case being made out, to restrain persons from instituting or prosecuting suits in other courts in this country than the courts of common law. The principles on which the court interferes with proceedings in other courts are the same as those upon which it interferes with proceedings before courts of law. If the question is one which may be more satisfactorily and more completely settled in equity than by [157] *149 INJUNCTIONS TO STAY PROCEEDINGS [CH. VIII. the court in which proceedings have been taken or instituted, the court of chancery will interfere by injunction, and draw the matter within its own jurisdiction. If, on the other hand, the powers of the court in which proceedings have been taken or instituted are sufficient and adequate for the purposes of justice, the proceedings will be allowed to take their course. The court will not interfere with proceedings in other courts, unless to do so would be a sound exercise of its discretion. It is not necessary to induce the court to interfere with the pro- ceedings in other courts, that it should find a case which would entitle the plaintiff to relief at all events. It is quite sufficient if the court finds upon the pleadings, and upon the evidence a case which makes the transaction a proper subject of investi- gation in a court of equity (i). 2. The court of admiralty acts to a certain extent * 149 upon equitable * principles, and possesses a certain equi- table jurisdiction (y) ; but in many cases the powers of that court are insufficient for the purposes of justice. In cases of the sort the court of chancery will, if necessary, act as ancillary to it, as in the appointment of a receiver pendente lite, and in other cases Qc), or will restrain proceedings in that court, and will draw the matter within its own jurisdic- tion. Thus proceedings in the admiralty court on a bottomry bond, alleged to have been executed fraudulently, were re- strained, notwithstanding the admiralty court had the power of moderating the amount of the demand to be recovered on the bond (Z). "The coiirt of admiralty," said Lord Cotten- ham (m), " though it possesses a certain equitable jurisdic- tion, possesses no jurisdiction enabling it to exercise the power which this court exercises over the instrument itself for the purpose of setting aside that which ought never to have existed, so as to prevent any validity being given to an instru- ment which originated in fraud " (n). In a subsequent case the court carried the jurisdiction farther, and restrained pro- (i) Glascott u. Lang, 3 M. & C. 451 ; (j) See Re Victoria, 5 Jur. N. S. Cotesworth v. Stephens, 4 Ha. 194; 204. PenneU v. Koy, 3 D. M. & G. 126. See Uc) Brenan v. Preston, 10 Ha. 335. Duncomtie v. Greenacre, 2 D. T. & J. (/) Glascott v. Lang, 3 M. & C. 451. 509 ; Sablicich v. Eussell, 2 L. R. Eq. (m) lb. 457. 441. \n) See Dobson v. Lyall, ih. 453, n. [158] CH. VIII.] IN OTHER COURTS. * 150 ceedings commenQed in the admiralty court on a bottomry- bond, given under circumstances affording great suspicion of fraud, on the ground that it did not appear that the admiralty court, though it had jurisdiction to determine the validity of the bond, and to raise all such questions as might be necessary to do complete justice, could investigate the matter so conve- niently, directly, and effectually as the court of chancery could (o). In Jarvis v. Chandler (^), proceedings on a sentence in the admiralty court were restrained, new evidence having been discovered at a period when, according to the practice of that court, it could not be received. 3. The court will not, however, interfere with proceedings in the admiralty court, unless to do so would be a sound exercise * of its discretion (q'). Thus Lord Hardwicke * 150 refused to restrain the admiralty court from entertain- ing a suit respecting the legality of the capture of a vessel as prize, in a case where it was alleged that some of the papers were lost, and that the captain of the vessel had been forced by the captors to sign a note which, if produced, would have led certainly to his being cast in the suit.' He said that to exercise jurisdiction in such a case would entirely defeat the Act of Parliament in relation to prizes, and that the court of admi- ralty could by its own rules put the case into a proper method of inquiry, and do full justice (r). So also, in Nicholl v. Goo- dair (s), the court refused to restrain the registrar of the court of admiralty from paying over to a bankrupt, under a treasury warrant, the proceeds of a vessel which had been con- demned as a droit of the crown. The proceeds had not at the time of the application reached the hands of the registrar. The court was of opinion that it could not interfere until an actual trust had been created by the payment of the moneys over to the registrar. To interfere, in the manner sought by the motion, with an officer of the court of admiralty, would (o) Duncan v. M'Calmont, 3 Beav. 455. See Brenan v. Preston, 1 W. R. 415. See CastelU v. Cook, 7 Ha. 89 ; 69. Hughes V. Morris, 13 Jur. 1065 ; Place (r) Anon., 3 Atk. 350. See also V. Potts, 5 H. L. 883. Sablicich v. Russell, 2 L. R. Eq. 441. tp) T. & R. 319. (s) 10 Ves. 155. (e) Glascott V. Lang, 3 M. & C. 451, [159] * 151 INJUNCTIONS TO STAT PROCEEDINGS [CH. VIIi; have been an act in derogation of the jurisdiction of that court. By the 514th clause of the Merchant Shipping Act, 1864, 17 & 18 Vict. c. 104, power is given to the court of chancery to determine, at the suit of a ship-owner, the damage payable upon loss or damage to the ship and cargo, to distribute the amount ratably among the several claimants, and to stop all actions and suits pending in the court of admiralty, or any other court relating to the same subject-matter (^). In an ap- plication under the clause, the ship-owner must aver that he has incurred liability in respect of some damage (u). Even although an adverse claimant has obtained a definitive judg- ment of the court of admiralty condemning the ship, * 151 the * court has jurisdiction to restrain hinvfrom pro- ceeding farther there (a;). The court has no control, however, over the ship itself, and cannot prevent the party who has obtained such a judgment from proceeding to a sale of the ship, a-nd retaining out of the proceeds such costs as he may be entitled to retain under the order of the admiralty court (jr). The 65th section of the Act which empowers the court to issue an order prohibiting for a time to be named in the order any dealing with the ship, or share of the ship, does not deprive the court of chancery of its ordinary jurisdiction to protect property during litigation (2). 4. The court of chancery had also jurisdiction to restrain proceedings in the ecclesiastical court (a). In Hill v. Tur- ner (6), a low woman who had entrapped an infant ward of court into a marriage was restrained from proceeding against him for restitution of conjugal rights and alimony (c). So also, where a legacy had been left to a woman, the court re- strained her husband from suing for it, till he had made an adequate settlement on her Qd'). So also, the next of kin of (() See Hill v. Audus, 1 K. & J. 263 ; (a) Anon., 1 Atk. 491, 3 Atk. 627, African Steam Ship Co. v. Swanzy, ib. 629. 326, 2 K. & J. 660 ; Leycester v. Logan, (b) 3 Atk. 516. 3 K. & J. 446, 4 K. & J. 726. (c See Hunt v. Hunt, 8 Jur. N. S. («) Hill V. Audus, 1 K. & J. 263. 85. (x) Leycester v. Logan, 3 K. & J. {d) Anon., 1 Atk. 491; Mealis v. 446. MeaUs, 5 Ves. 617, u., Dick. 373. See (y) lb., S. C. 4 K. & J. 725. Buncombe v. Greenacre, 2 D. F. & J. (z) Orr V. Dickenson, John. 4. 509. [160] CH. VIII.J IN OTHER COURTS. * 152 an intestate were restrained from proceeding in the ecclesias- tical court against the wife and executrix of an intestate to compel distribution where she had an equitable claim against his personal estate (e). So also a legatee was restrained after a decree for the administration of assets from suing for his legacy (/). Where a party had long acted under a will, and had admitted the validity of the probate in proceedings in the court of chancery and the House of Lords, and then sought, without bringing forward any new evidence, to contro- vert the validity of the will in the ecclesiastical court, an in- junction was granted to restrain him from proceeding in that court (^). 5. * The court would not entertain a bill of discovery * 152 in aid of the jurisdiction of the ecclesiastical court, because that court was fully capable of coming at the discovery itself (A). But inasmuch as the court of probate, established under 20 & 21 Yict. c. 77, has not the same power of com- pelling discovery which the old court possessed, and the ancient jurisdiction of the court is not affected by that act, the court will restrain a man from proceeding in the court of probate to prove a will until he has made the necessary dis- covery (i). 6. The court has, however, no jurisdiction to interfere against the granting probate of a will on the ground of the will having been obtained by fraud or forgery. The court of probate is competent to deal with the matter (A;). 7. The court of chancery has also jurisdiction to restrain by injunction proceedings in the Lord Mayor's Court, and will interpose, where the circumstances of the case create an equity for the interference of the court, or the question at stake is one which may be more satisfactorily and expeditiously settled (c) Backhouse v. Hunter, 1 Cox, 342. (i) Fuller v. Ingram, 28 L. J. Ch. (/) Stonehouse v. Stonehouse, Dick. 432. 98 ; Smith v. Kempson, ib. 769. See {k} Archer v. Mosse, 2 Vern. 8 ; Nel- Duncombe v. Greenacre, 2 D. F. & J. son v. Oldfield, ib. 76 ; Plume v. Beale, 509. 1 P. "Wms. 388 ; Kerrick v. Bransby, 7 (g) Sheffield v. Duchess of Bucking- Bro. P. C. 437 ; Allen v. Macpherson, ham, 1 Atk. 628. See Gascoyne v. 1 H. L. 191 ; Hindson v. Weatherill, 1 Chandler, 3 Swanst. 418, n. Sm. & G. 604. See Boyse v. Bussbo- (A) Dun V. Coates, 1 Atk. 288 ; Earl rough, 6 H. L. 1. of Derby v. Duke of AthoU, 1 Ves. 202,205. 11 [161] *153 INJUNCTIONS TO STAY PROCEEDINGS [CH. VIII. in equity between all the parties. Thus parties were, under the circumstances of the case, restrained after a commission in bankruptcy from taking proceedings in foreign attachment in the Lord Mayor's Court (Z). So also proceedings in foreign attachment in the same court were restrained on the ground that the matter could be more satisfactorily and expeditiously settled in the court of chancery (m). So also a creditor of an intestate will be restrained from taking proceedings in the Lord Mayor's Court after a decree for administration (w). So also an officer who had made an equitable assignment * 153 of moneys to arise from * the sale of his commission, was restrained from taking proceedings by foreign at- tachment in respect of them (o). In Hipkins v. Newton (p), an injunction was granted restraining moneys from being paid out of the Lord Mayor's Court. 8. The court of chancery has also jurisdiction to restrain by injunction proceedings in the county court's (g*). 9. Where the legislature has constituted a tribunal for a special purpose, the court of chancery will not prevent per- sons who are entitled to do so from applying to that tribu- nal (r). No equity can be founded on an allegation that a court, legally constituted, is not properly competent to decide questions within its jurisdiction (s). But if a case of fraud can be shown, the court will entertain jurisdiction {t). 10. The court of chancery will not in general interfere with proceedings in the court of bankruptcy, for that court has, to a certain extent, an equitable jurisdiction, and is therefore capable of doing justice between the parties in matters of equity (m). But the court of chancery will interfere to re- (l) Barker v. Goodair, 11 Ves. 78 ; In Triniok v. Bordfleld, Toth. 182, an Sieveking v. Behrens, 2 M. & C. 581. injunction was granted to restrain pro- See Pennell v. Eoy, 3 D. M. & G. 136. ceedings in tlie Stanneries Court. (m) Cotesworth v. Stephens, 4 Ha. (r) Harris v. Jose, 14 W. E. 303. 194. See Anderson v. Kemshead, 16 (s) Barusley Canal Co. v. Twibell, 7 Beav. 329 ; Mildred v. Neate, Dick. Beav. 19. See Bateman v. Boynton, 279; TurniTal v. Boyle, 4 Kuss. 142. 1 L. R. Ch. Ap. 359; Earl Beauchamp «. (n) Eedhead v. Welton, 30 L. J. Ch. Darby, 1 W. N. 308. 577. (t) Earl Beaucliamp v. Darby, 1 W. (o) L'Estrange v. L'Estrange, 13 N. 308. Beav. 281 ; Webster v. Webster, 31 (u) Ex parte Stephens, 11 Ves. 27 ; Beav. 393. Ex parte Hanson, 12 Ves. 347 ; Ex parte (p) 9L. J. Ch. 227. Roffev, 19 Ves. 469; Thompson v. (q) Ratcliffe v. Winch, 16 Beav. 576 ; Dereham, 1 Ha. 358, infra. Neighbour v. Brown, 26 L. J. Ch. 670. [162] CH. VIII.J IN OTHER COURTS. * 154' strain a man from taking proceedings, the effect of which may be to afford a foundation for an adjudication in bankruptcy, or from doing any act by means of, or in consequence of, 'which an act of bankruptcy may be deemed to have been committed by another, in a case where such a proceeding or such an act would be contrary to equity (a;). The mere allegation that the proceedings in bankruptcy, with a view to making an alleged debtor a bankrupt, are dictated purely by malice, and that no debt is due, is not sufficient (y). 11. * The jurisdiction of the court of chancery in * 154 restraining proceedings in other courts is not confined to courts within this country. The court has clear and un- doubted jurisdiction on a proper case' being made out to restrain persons within its jurisdiction from prosecuting suits in the courts of foreign countries. In the exercise of the jurisdic- tion the court does not proceed upon any claim of right to interfere with or control the course of proceedings in the tribunals of a foreign country, or to prevent them from adju- dicating on the right of parties wheiji drawn in controversy, and duly presented for their determination. The jurisdiction is founded on the clear authority vested in courts of equity over persons within the limits of their jurisdiction, and amena- ble to process to restrain them from doing acts which work wrong and injury to others, and are therefore contrary to equity and good conscience. As the order of the court in such cases is pointed solely at the individual, and does not ex- tend to the tribunal where the suit or proceeding is pending, it is wholly immaterial that the party to whom it is addressed is prosecuting his action in the courts of a foreign country (2). If the circumstances of the case are such as to make it the duty of the court to restrain a party from instituting or carry- ing on proceedings in a court here, they will also warrant it in (x) Attwood V. Banks, 2 Beav. 192 ; {z) Lord Cranstown v. Johnstone, 3 Perry v. "Walker, 1 Y. & C. C. C. 672; Ves. 182, 5 Ves. 277 ; Lord Portarling- Pim V. Wilson, 2 Ph. 653, 656. See torn;. Soulby, 8M. &K. 108; Bunbury Mather v. Lay, 2 J. & H. 374. Comp. v. Bunbury, 3 Jur. 648 ; Carron Iron Re London and Eastern Banking Cor- Co. v. Maclaren, 5 H. L. 416, 436, per poration, 2 D. & J. 484. Lord Cranworth. (y) Pirn V. Wilson, 2 Ph. 653, 656. [163] * 155 INJUNCTIONS TO STAY PROCEEDINGS [CH. Till. restraining proceedings in a foreign country (a). Thus, in Lord Portarlington v. Soulby (6), the indorsee of a bill of ex- change was restrained from suing the plaintiff in the Irish courts upon the bill upon certain equitable grounds which would have warranted a similar injunction against any action in the courts of this country. Upon the same principle the rule which prevents a creditor from proceeding with an action at law for the recovery of his debt after a decree in an admin- istration or creditor's suit, is applicable to the case of a * 155 creditor proceeding in a foreign court (c). * If after a decree for administration, under which he may come in and prove his debt, and have complete relief, a creditor within the jurisdiction institutes proceedings abroad in respect of the same matter, the court of chancery considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings (c?). Thus, in Beauchamp v. Lord Huntley (e), a creditor who had come in under a decree and got relief against the English assets, was restrained from further prosecuting a suit in relation to the same estate in Ireland. So also, in Graham v. Maxwell (/), a creditor who had come in here under a decree in an administration suit, was restrained from proceeding with an action in Scotland, which he had commenced in ignorance of the decree (^). The court may, however, under the peculiar circumstances of the case, decline to exercise the jurisdiction, although the person whose proceedings are sought to be restrained has appeared and put in an answer (A). 12. The rule which prevents a creditor within the jurisdic- tion from taking proceedings abroad after a decree for adminis- tration here, does not destroy any priority to which, from the nature of his security, a creditor in a foreign country is entitled as against the assets there according to the law of (a) 5 H. L. 439, per Lord Cranworth ; (e) Jac. 546. Portarlington v. Soulby, 3 M. & K. 104. (/) 1 Mac. & G. 71. See Ainslie v. Sims, 23 L. J. Ch. 163. (?) 6 H. L. 4:55, per Lord St. Leonards. (6) 3 M. & K. 104. See, as to the costs, Beauchamp w. Lord (c) Graham v. Maxwell, 1 Mac. & G. Huntley, Jac. 646 ; Graham v. Max- 71. -weU, 1 Mac. & G. 71. (d) 5 H. L. 437, per Lord Cranworth. (A) Stainton v. Carron Iron Co., 21 [164] Bear. 159, 161. CH. TIII.J IN FOREIGN COURTS. * 156 that country, although they come to be distributed here (i). Tlius, in Cooke v. Gregson (Jc), it was held that in a creditor's suit for the administration of assets, a judgment creditor in Ireland was as against the proceeds of Irish property entitled to priority over simple contract creditors (J). 13. The principle upon wliich the court, after being in full possession of a cause in which it has full power to do justice, interferes to restrain a party to the suit from resorting to another tribunal in respect of the same matter or the same demand, applies also where the proceedings are insti- tuted in a * foreign country (m). In Harrison v. Gur- * 156 ney (w), a decree had been obtained for the execution of the trusts of a deed for the benefit of creditors, and a receiver of real estates in England and Ireland had been ap- pointed. Some of the trustees afterwards filed a bill in Ireland for executing the trusts of the same deed. Lord Eldon restrained them from prosecuting that suit, on the ground that it sought the same relief as might be had under the decree obtained in this country. So also, in Beckford v. Kemble (o), after a decree in this country for an account on a bill to redeem a West India mortgage. Sir John Leach would not suffer the mortgagee to prosecute a suit in Jamaica for foreclosing the same mortgage on the ground that full relief might be had under the decree in this country (^). So also, in Booth v. Leycester (g), a person was restrained from prose- cuting a suit in Ireland after a decree in this country, the subject-matter of the suit being the same as that already adju- dicated on in the court. So also, in Wedderburn v. Wedder- burn (r), where parties who had in a suit here established their right against the defendant, and had obtained an order, instituted proceedings in Scotland against some of the defend- ants for the same demand, an injunction was obtained at the (i) 5 H. L. 455, per Lord St. Leon- in) 2 J. & W. 563. ards. (o) 1 Sim. & St. 7. (h) 2 Drew. 286. (p) See Maclaren v. Stainton, 26 L. (I) See Preston v. Lord MelvUIe, 8 J. Ch. 332. CI. & Fin. 1. (q) 1 Keen, 579. (m) Wedderburn v. Wedderburn, 2 (r) 2 Beav. 208, 4 M. & C. 585. Beav. 208, 4 M. & C. 585 ; Carron Iron Co. V. Maclaren, 5 H. L. 440. [165] * 157 'INJUNCTIONS TO STAY PROCEEDINGS [CH. Till. Rolls against their proceedings in Scotland, and Lord Cotten- ham confirmed the order («). 14. Even though no decree has been obtained in this country, yet if a suit instituted abroad does not appear so well calcu- lated to answer the ends of justice as the suit here, the court will restrain the foreign action, imposing, however, terms which it considers reasonable for protecting the party whom it enjoins. Thus, in Bushby v. Munday (^), Bushby had given a bond to Munday to secure a gambling debt, and Munday as- signed the bond to Clowes. He proceeded in Scotland against Bushby, who was a Scotchman, and a proprietor of real estate. Bushby filed a bill here to have the bond set aside and * 157 delivered * up. Upori a motion for an injunction to stay the proceedings in Scotland, Sir J. Leach granted the injunction, because he considered the validity of the bond could be better tried in the country where the courts judicially knew the law than in Scotland, where the courts could only learn the law as a matter of fact to be communicated by way of evidence ; and, secondly, that the remedy here, if the obli- gor should make' out his title, would be more complete than could be had in Scotland. He laid it down generally that where parties, defendants, are resident in England, and brought here by subpoena, this court has jurisdiction to act upon them personally with respect to the objects of the suit, as the ends of justice require, and with that view to order them to take or to omit to take any steps or proceedings in any other court of justice, whether in this or in a foreign country. He therefore restrained the assignee from going on with the Scotch action, putting the plaintiff on such terms in Scotland as would secure to him the preferable lien which he might acquire by his suit on the bond there, if he should ultimately establish any de- mand on the bond (m). So also, in Bunbury v. Bunbury (a;), Lord Cottenham affirming a judgment of Lord Langdale (y), restrained parties from prosecuting proceedings at law in (s) Per Lord St. Leonards, 5 H. L. Leonards, 5 H. L. 438, 453. See also, 454. per Lord Brougham, ib. 446. (t) 5 Madd. 297. {x) 3 Jur. 644. (u) Per Lords Cranworth and St. (y) Ib. 1 Beav. 835. [166] CH. VIII.] IN FOREIGN COURTS. * 158 Demerara to recover real estates there, which involved ques- tions depending on the law of Holland, and also on the law of England, and further questions of account which could only he taken in this country. He laid it down as a principle that where part of the subject-matter is admitted necessarily to he within the jurisdiction, the court will take upon itself to deter- mine the whole matter, though it involves questions of foreign law, more especially where the question of foreign law depends to some extent upon the determination of the court as to the English law. Upon granting the injunction, his lordship put the plaintiff on terms to submit and carry into effect any order which the court might think fit to make in respect of the proceedings in Demerara. So also, in Hope v. Carnegie (a), the court, after decree for administration, restrained one of the parties interested from * prosecuting pro- * 158 ceedings in a foreign country in respect to real and personal estates situate there (a). 15. If, however, from any cause it appears likely to be more conducive to substantial justice, or if, upon the balance of convenience and inconvenience, it appears desirable that the foreign proceedings should be allowed to take their course, the court will allow them to proceed (6). If, for instance, the court desires to ascertain what the foreign law is, the proceed- ings will be allowed to go on (c). So also, if the proceedings in the foreign country are calculated to give a security against the property there, so as to answer the demand under the decree here (d), or are necessary in order to protect the pro- perty there against the demands of creditors who have not appeared to the suit here, and are not within the jurisdic- tion (e), the proceedings will to this extent be allowed to pro- ceed. In Harrison v. Gurney (/), Lord Eldon restrained a suit for administration in Ireland on the ground that the same (z) 1 L. R. Ch. Ap. 320. Transatlantic Co. v. Pietroni, John. (a) See, as to the jurisdiction of the 604. Court of Session in Scotland to grant (c) Elliott u. Lord Minto, 6 Madd. 16. an interdict to restrain a party from But see Bunbury v. Bunbury, 3 Jur. taking proceedings in the coiu-ts of 644. another country, Dawson's Trustees v. {d) Wedderhurn v. Wedderburn, 2 Maclean, 22 Dec. of Ct. of Session, 2d Beav. 208, 4 M. & C. 585 ; Carron Iron series, p. 685. Co. v. Maclaren, 5 H. L. 454. (6) See Wright v. Simpson, 6 Ves. (e) Parnell v. Parnell, 7 Ir. Ch. 322. 730 ; Pennell v. Roy, 3 D. M. & G. 140 ; (/) 2 J. & W; 563. [167] * 159 INJUNCTIONS TO STAY PROCEEDINGS [CH. Till. relief was sought as could be had under the decree obtained in this court, but he would not prevent a bill from being filed in Ireland for the mere purpose of calling on a receiver there to account for his receipts and payments (^). In Jones t). Geddes Qi), where the Vice-Chancellor had granted an injunc- tion against a heritable bond creditor, who was proceeding in Scotland against the assignees in bankruptcy of the obligor who had real estate in Scotland, Lord Lyndhurst dissolved the injunction upon a simple consideration of the convenience and inconvenience of the different courses to be adopted (i). * 159 16. * The right to land in a foreign country must be determined by the laws of that country. But a con- tract with respect to land in a foreign country entered into here between persons within the jurisdiction, must be gov^ erned and construed by the rules of English law. Proceeds ings in the foreign court in respect of the contract which are not in accordance with the rules of English law will be re- strained (Jc). 17. If after a suit has been instituted in a foreign country, in which full justice can be had, and to which both parties have appeared, one of whom commences an action at law in this country in respect of the same subject-matter, the court may restrain the proceedings until the decision of the foreign court has been come to (V). 18. The jurisdiction of the court in restraining parties from instituting proceedings in foreign courts, is in general limited to the case of persons who are within the power or the reach of the court. The court will not, unless under very special cir- cumstances, interfere with the right of a foreigner resident ' abroad, who has not sought relief under a decree, or appeared in a suit here, to recover his debt according to the laws of his own country. The circumstance that a foreigner, resident abroad may have property within this country, or may have a (g) Per Lord Cranworth, 5 H. L. 437. (it) Good «. Good, 33 Beav. 814. (A) 1 Ph. 724. Comp. Norris v. Chambres, 3 D. F. & (i) Per Lord St. Leonards, 4 H. L. J. 583. See Lord Granstown v. John- 454, See Kennedy v. Cassilis, 2 Swanst. stone, 3 Ves, 182, 5 Ves. 277. 13 ; Venning v. Lloyd, 1 D. F. & J. (/) Transatlantic Co. v. Pietroni, 193. - Jolin. 604. [168] CH. Till.] IN FOREIGN COURTS. * 160 house of agency here, does not give the court jurisdiction («i). There may be cases in which the court will restrain a for- eigner domiciled in another country, from proceeding to obtain payment of debts according to the law of the country in which he is domiciled, but a very strong case indeed must be made out (n). The mere fact that a person who takes pro- ceedings in a foreign court may be within the reach of the court is not a sufficient ground for the exercise of the juris- diction. In interfering io restrain actions prosecuted in other countries, the court will be very cautious as to extending its jurisdiction under the color of carrying out its prin- ciples. * Where the case made out is simply one of * 160 interference by a stranger, though within its jurisdic- tion, with the property of another in a mode which is warranted by the law of a foreign country upon an assumption of right, that constitutes no foundation for the interference of the court, though it may happen that there is no foundation of right. To do so would be to assume a jurisdiction to prescribe the courts in which parties should bring their suits, without there being any thing to affect the conscience of the parties, upon the simple ground that the suits were such as in the opinion of this court ought not to be maintained, and thus to bring under the decision of the court the question whether suits in other courts could be maintained, — a question which it is for those courts and not for this court to determine (o). Where, therefore, a debtor became bankrupt in England, having real estate in Scotland, a creditor who had not proved under the bankruptcy was not restrained from proceeding in an action against the assignees in Scotland for the purpose of recovering out of the real estate there an amount equal to the dividend, which would have been payable oif the debt (p). In Wallace v. Campbell (§'), the court would not restrain the agent of the administration in England from sending over money of the intestate to Madeira, the intestate's estate being (m) Carron Iron Co. v. Maclaren, 5 (o) 3 D. M. & G. 189, per L. J. Tur- H. L. 416; Sudlow v. Dutch-Rhenish ner. Railway Co., 21 Beav. 43. (p) Pennell v. Eoy, 3 D. M. & G. (re Maclaren v. Stainton, 26 L. J. Ch. 139. 332. See Ainslie v. Sims, 28 L. J. Ch. (?) 4 Y. & C. 167. 163. [169] * 160 FOREIGN COURTS. [CH. Tin. the subject of a suit in Madeira. " The court," said Lord Abinger, C. B. (r), "will take for granted that the foreign court will do justice as well as the court here" (s). 19. If the court is in full possession of the cause, or a decree has been made, an injunction will be granted on motion in the suit (<). If the court is not in possession of the matter, a bill must be filed (u). (r) 4 Y. & C. 167. Beav. 208, 4 M. & C. 585 ; Graham v. (s) See Wright v. Simpson, 6 Ves. Maxwell, 1 Mao. & G. 71. 73 ; Pennell v. Roy, 3 D. M. & G. 140. (m) See Portarlington v. SoTilby, 3 M. (t) Harrison, y. Gurney, 2 J. & W. &K. 108. 563 ; Wedderhurn v. Wedderburn, 2 [170] CH. IS.J INJUNCTIONS AGAINST EXECUTORS. * 161 * CHAPTER IX. *161 INJUNCTIONS AGAINST EXBCUTOES. 1. Cases in which executor or administrator -will be restrained from getting in assets, and receiver appointed. 2. Will not be restrained from parting with assets unless a case of past or probable misapplication of them is made out. 8. Injunction and receiver may be had pending suit respecting probate. 4. By late statute probate court may appoint receiver. 1. If an executor or administrator tlirough misconduct (ti), insolvency (a;), or bankruptcy (?/), is bringing the property of the deceased into danger, an injunction will be granted to ' restrain him from getting in the assets, and a receiver will be appointed. If, however, a testator has selected an insolvent debtor as his executor, 'with full knowledge of his insolvency, the court will not, on the bare fact of the insolvency alone, interfere and appoint a receiver (2). The circumstance that an executor is poor and in mean circumstances, is not a suffi- cient ground for the interference of the court (a), but an injunction will be granted where an executor or administrator is proved to be of bad character, drunken habits, and great poverty (6). A wife, an executrix, will be restrained from getting in the assets of the testator, and a receiver will be appointed if her husband is abroad and not amenable to the jurisdiction of the court, because, where the husband is out of the jurisdiction there is no remedy if the wife waste the assets (c) ; but if she has been deserted by her husband, and {v) Rogers v. Rogers, 1 Anst. 174 ; (a) Hawthornthwaite v. Russell, 2 Middleton v. Dodswell, 13 Ves. 266; Atk. 126, S. C. Barnard, Ch. 334; Harrison v. Cockerell, 3 Mer. 1. Anon., 12 Ves. 4; Howard v. Papera, (x) Scott V. Becher, 4 Price, 346 ; 1 Madd. 142. Mansfield v. Shaw, 3 Madd. 100, n. (J) Everett v. Prythergh, 12 Sim. (v) Gladdon v. Stoneman, 1 Madd. 365. See King w. Abbotson, 7 L. J. Exch. 143. Eq. N. S. 6. (z) Stainton v. Carron Co., 18 Beav. (c) Taylor v. Allen, 2 Atk. 213. 161. See Langley v. Hawke, 5 Madd. 46. [171] * 162 INJUNCTIONS AGAINST EXECUTORS. [CH. IX. obtained an order for the protection of her property under the 21st section of the Divorce and Matrimonial Causes Act, 20 & 21 Vict. c. 85, the court will not interfere (c?). If * 162 the husband of a married woman, who has been * ap- pointed executrix, is of unsound mind, the court will not restrain her from taking out probate, but will restrain her,, if she takes out probate, from intermeddling with the estate (e). A woman, administratrix of her husband, who has died intes-, tate, leaving children, will only be restrained as to two-thirds of the intestate's personal estate, as she is absolutely entitled to the other third for her own use (/). 2. Tlie court will not restrain an executor from parting with- the assets unless a case of past or probable misapplication of them has been made out. Thus, where an annuity secured by a warrant of attorney had been granted, the court would not, at the suit of the annuitant, restrain the executor of the grantor from paying simple contract debts before setting apart a fund to answer the future payment of the annuity (gr). So,, also, where the only assets of a testator consisted of a devised real estate, which was liable to his bond for securing an annu- ity, and before the annuity had fallen into arrear the annuitant instituted a suit, alleging waste, and sought to restrain the executrix from selling or mortgaging the real estate, the court refused to interfere (A). The principle upon which these cases proceeded was, that until an annuity is actually due . there is no legal title, and the liability is only in contingency (i). Where, however, the liability in future is certain, the case is different, and the assets may not be parted with (fc), 3. Pending a suit in the proper court for obtaining (Z), re- calling, or revoking (m) any probate, or grant of administrar (d) Bathe v. Bank of England, 4 K. {k) King v. Malcott, 9 Ha. 692 ; _&J. 564. See Re Eainsdon, 4 Drew. Atkinson v. Gray, 1 Sm. & G. 577; 447; Postgate v. Barnes, 9 Jur. N. S. Henderson v. Gilchrist, 17 Jur. 570; 456. Ex parte Robinson's Executors, 6 D. (e) Yetts V. Pahner, 9 Jur. N. S. M. & G. 578, per Knight Bruce, L. J. 954. (/) Atkinson i'. Henshaw, 2 V. & B. (/) Rogers v. Rogers, 1 Anst. 174. 85 ; "Watkins v. Brent, 1 M. & C. 102; Ig) Read v. Blunt, 5 Sim. 567. See Rendall v. Rendall, 1 Ha. 154. King V. Malcott, 9 Ha. 692. (m) Rutherford v. Douglas, 1 Sim. (A) Norman v. Johnson, 29 Beav. 77 ; & St. Ill ; "Watkins v. Brent, 1 M. & C. Burrell v. Delevante, 30 Beav. 553. 102 ; Connor v. Connor, 16 L. J. Ch, (i) lb. I 371 ; Newton v. Ricketts, 11 Jur. 662. [172] CH. IX.] INJUNCTIONS AGAINST EXECUTOES. * 163 tion, the court has jurisdiction to interfere and appoint a receiver. If no probate or administration has been granted, it is of course to grant an injunction and appoint a receiver, * unless a special case can be made out for not doing * 163 so (n). But if probate or administration has been already granted, and the suit is for the purpose of recalling or revoking probate, the course of the court is not to interfere, unless in cases of fraud (o),or unless it can be shown that the legal right to receive the assets is being abused or in danger of being abused (p). 4. By a late Act, 20 & 21 Vict. c. 77, creating the court of probate, and transferring to that court the jurisdiction of the ecclesiastical court in matters of probate, that court has been empowered to appoint a receiver of the real estate of any person deceased pending a suit touching the validity of any will by which his real estate may be affected ; and it is declared that such receiver shall have such power to receive all rents and profits of such real estate, and such powers of letting and managing such real estate, as the court may direct, s. 71. The act does not, in express terms, interfere with or affect the jurisdiction of the court of chancery. (n) Kendall v. Kendall, 1 Ha. 154; {p) Kendall v. Kendall, 1 Ha. 152; Steer v. Steer, 2 Dr. & Sm. 311. See Connor v. Connor, 16 L. J. Ch. 871 ; Smith V. Aykwell, 3 Atk. 566. Newton v. Ricketts, 11 Jur. 662 ; Devey (o) Dew V. Clarke, 1 Sim. & St. 114 ; v. Thornton, 9 Ha. 229 ; Gumming v. Watkins v. Brent, 1 M. & C. 97 ; Dimes Praser, 28 Beav. 614. See Marr v. V. Steinberg, 2 Sm. & G. 85. Littlewood, 2 M. & C. 454. [173] ■ 164 INJUNCTIONS BETWEEN PARTNERS. [CH. X. *164 * CHAPTER X. INJUNCTIONS BETWEEN PARTNERS. 1. Court may enjoin a partner from doing acts inconsistent with the duties of a partner. 2. An injunction will not he refused simply because a dissolution of partnership is not sought. 3. Case of England v. Carling on this point. 4. But in case of partnerships determinable at will, it is doubtful whether an injunction will he granted if a dissolution be not prayed for. 5. Injunctions will be granted pending a suit for dissolution. 6. After dissolution either partner may in the absence of agreement carry on the busi- ness. 7. In case of express agreements after dissolution, injunction will be granted. 8. Disposition of the name or partnership style after dissolution — is an asset of partner- ship. 9. Disposition after decease of a partner. 10. On sale of business right to the name or style passes with it. 11. Court will not interfere in cases of mere disagreement between partners, but only when misconduct is such as to render it impossible for the business to he carried on in a proper manner. 12. Partnership property will be protected from creditors of a deceased or bankrupt part- ner. 13. Actions at law by one partner against another will be restrained. 14. And injimctions will be granted to restrain a man from holding out another as part- ner. 15. Partner who seeks relief must do equity. 16. Difference of principles on which a receiver is appointed and an injunction granted. 1. The court of chancery has jurisdiction to restrain by in- junction one or more members of a partnership firm from doing acts inconsistent with the terms of the partnership agreement, or with the duties of a partner. 2. An injunction will not be refused simply because a disso- lution of partnership is not sought (q). "If," said Wigram, V. C, in Fairthorne v. Weston (r), " it were the rule of the court that a bill would in no case lie to compel a man to observe the covenants in a partnership deed unless the bill (q) Miles . M. & G. 30i ; Att.-Gen. v. Borough, . («) lb- of Birmingham, 4 K. & J. 528, 546; (A) Att.-Gen. v. Proprietors of Brad- Poster K.Birmingham, Wolverhampton, ford Canal, 2 L. E. Eq. 71. See Mount- &c., Kailway Co., 2 W. E. 378; Wicks' cashell v. O'Neill, 3 Ir. Ch. 619 ; Earl v. Hunt, John. 372. of Shrewsbury v. Trappes, 2 D. E. & (/) Gibson v. Smith, 2 Atk. 182;, J- 172. Eobihson v. Litton, ib. 209 ; Hanson r. (c) Earl of Ripon v. Hobart, 3 M. & Gardiner, 7 Ves. 305 ; Colfin v. Coffin, K. 169, 176 ; Electric Telegraph Co. v. Jac. 71 ; Barry r. Barry, 1 J. & W. 651 ; Nott, 2 Coo. C. C. 55; Tipping v. Palmer k. Paul, 2 L. J. Ch. 154; Att.- Eckersley 2 K. & J. 264; Imperial Gas Gen. v. Eorbes, 2 M. & C. 123, 1^52; Co. V. Broadbent, 7 H. L. 600. Haine,s v. Taylor, 10 Beav. 7,5, 2 Ph. (d) Haines v. Taylor, 10 Beav. 471/ 209; Campbell v. Allg.aodi 17 Beav. 2 Ph. 209 ; Emperor of Austria v. Day, 628 ; Tipping v. Eckersley, 2 K. &, J. 3 D. E. & J. 217. 264, 270 ; Elliott v. North Eastern Eail- (e) Hanson v. Gardiner, 7 Ves. 307; way Co., 1 J. & H. 145, 2 D. F. & J. Earl of Eipon v. Hobart, 3 M. & K. 423, 10 H. L. 333.. 14 [209] *199 PROTECTION OP LEGAL RIGHTS TO PROPERTY [CH. XV. infringe a right will not prevent the court from interfering (^) ; but if a man asserts positively that it is not his intention to do a certain act or to infringe a certain right, and there is no evidence to show any intention on his part to do the act or infringe the right, the court will not interfere (Ji). 3. The court has jurisdiction to interfere to restrain the violation of a legal right, even though there be no ground of action (i). The jurisdiction is not limited to cases where an action at law can be maintained, but extends to cases where, in consequence of the infirmity of legal process, there is neither a right nor a remedy at law, but only what the law in principle acknowledges to be a wrong (Jc). 4. In all cases where a civil right is given by statute, the party to whom the right is given is entitled to all the benefits known to the common law for the protection of that right, in addition to those in the statute. The imposition of penalties securing the right does not exclude the ordinary common law remedies (V). When penalties are imposed by statute, a * 199 man who * seeks equitable relief will be required by the court, as a condition of its assistance, to waive the penalty or forfeiture (m). ' 5. The irreparable, or at least serious, nature of the mis- chief to which the property, the subject-matter in dispute, may be exposed before a decision on the legal right can be had, being the equity on which the interference of the court by interlocutory injunction is founded (w), a man who seeks the aid of the court must be able to satisfy the court that its inter- ference is necessary to protect him from that species of injury {g) Jackson v. Cator, 5 Ves. 688; {I) Cadell v. Robertson, 5 Pat. Sc. Potts V. Levy, 2 Drew. 272. Ap. 493, 503, per Lord Eldon. See (h) Hanson v. Gardiner, 7 Ves. 305; Cory u. Yarmouth and Norwieli Rail- Potts D. Potts, B L. J. Cli. 176; Haines way Co., 3 Ha. 607; Livingstone. Van V. Taylor, 10 Beav. 75, 2 Pli. 209; Ingen, 9 Johns. (Amer.) 507, 562; Campbell v. Allgood, 17 Beav. 628; Thompson v. New York and Harlem Fooks V. Wilts, Somerset, and Wey- Railroad Co., 3 Sandf. Ch. (Amer.) mouth Railway Co., 6 Ha. 199 ; Wood- 626. man v. Robinson, 2 Sim. N. S;20i; (m) 1 Atk. Mitf. PI. 162; Colburn b. Kernot v. Potter, 3 D. F. & J. 447, 457 ; Simms, 2 Ha. 554 ; Geary v. Morton, 1 Bell V. Wilson, 34 L. J. Ch. 572. De G. & S. 9. (i) Cory v. Yarmouth and Norwich (n) Att.-Gen. t. Sheffield Gas Co., 8 Railway Co., 3 Ha. 607. D. M. & G. 304; Johnson «. Shrews- (k) Emperor of Austria v. Day, 3 D. bury and Birmingham Railway Co., i'6. r. & J. 55, 254. 931. [.210] OH. XV.J BY INJUNCTIONS PENDING TRIAL OF EIGHTS. '200 which the court calls irreparable, before the legal right can be established upon trial (o). By the term " irreparable injury " it is not meant that there must be no physical possibility of repairing the injury ; all that is meant is that the injury would be a grievous one, or at least a material one, and not ade- quately reparable by damages at law (p) ; and by the term " the inadequacy of the remedy by damages " is meant that the damages obtainable at law are not such a compensation as will in effect, though not in specie, place the parties in the position in which they formerly stood {q). If the act com- plained of threatens to destroy the subject-matter in queistion, the case may come within the principle, even though the damages may be capable of being accurately measured (r). The fact that the amount of damage cannot be accurately ascertained may constitute irreparable damage ; but if there -be a reasonable means of approximating so nearly to the quantity of damage as to show on the whole that it will not be irreparable, *the case is different (s). Though * 200 the amount of damage may be difiicult to ascertain, a man who has on a previous occasion compromised his rights against other parties by accepting a sum of money, may pre- clude himself from saying that the damage is irreparable, and cannot be compensated by money (f) ; but the argument that a man, by offering to accept a certain sum of money as the price of his abstaining from taking proceedings, has shown that the harm he anticipates is not irremediable, and that therefore he ought not to apply for an injunction, does not go far with the court (m). A man who has a full and complete (o) Rigby V. Great Western Railway Sheffield Gas Co., 3 D. M. & G. 304, Co., 2 Ph. 50 ; Cory v. Yarmouth and 320. Norwich Railway Co., 3 Ha. 605; (q) Wood w. Sutcliffe, 2 Sim. N. S. Elmhirst v. Spencer, 2 Mac. & G. 50 ; 165. See Ridgway v. Roberts, 4 Ha. Wood V. Sutcliffe, 2 Sim. N. S. 168; 106,116. Child V. Douglas, 6 D. M. & G. 741 ; (r) Hilton v. Lord Granville, Cr. & Att.-Gen. v. United Kingdom Telegraph Ph. 283, 2*92. Co., 30 Bear. 287; Dyke ... Taylor, 3 (s) Cory v. Yarmouth and Norwich D. P. & J. 467. RaUway Co., 3 Ha. 603. (p) Pinchm v. London and Black- (i) Wood v. Sutcliffe, 2 Sim. N. S. wall Railway Co., 5 D. M. & G. 860. 169; Paris Chocolate Co. v. Crystal See Earl of Ripon v. -Hobart, 3 M. & Palace Co., 3 Sm. & G. 119 ; Dowling K. 175 ; East Lancashire Railway Co. i/. Betjeman, 2 J. & H. 544. c. Hattersley, 8 Ha. 90 ; Att.-Gen. v. (u) Ainsworth v. Bentley, 14 W. R. 630. [211] * 201 PROTECTION OF LEGAL EIGHTS TO PEOPEETT [OH. XV. remedy at law cannot be heard to say that the danaage is Irrep- arable (v'). It is, however, no objection to the exercise of the jurisdiction by injunction that a man may have a legal remedy. The question in all cases is, whether the remedy at law is, under the circumstances of the case, full and complete. If the remedy at law does not fully come up to the requisitions of the case, the exercise of the jurisdiction may be proper and beneficial (x). Mere inconvenience, though the damage be slight, may, under the peculiar circumstances of the case, constitute irreparable damage within the rule of equity (z/). In some cases, indeed, the court will not withhold its hand on the ground of the smallness of the damage, unless it be clear beyond ^all manner of doubt that the damage is inapprecia- ble (2).i 6. The jurisdiction of the court to interfere by way of inter- locutory injunction in support of a legal title being purely equitable, it is governed upon strict equitable principles. Tlie court, where its summary interference is invoked, * 201 always looks * to the conduct of the party who makes the application, and will refuse to interfere, even in cases where it acknowledges a right, unless his conduct in the matter is free from blame (a). He must be able to satisfy the court that his own acts and dealings in the matter have been fair and honest, and free from any taint of fraud or ille- gality (6). A man who has by his conduct put himself in the wrong, or who has by his own conduct brought about the state of things of which he complains, cannot invoke the aid of the (w) Kerrison v. Sparrow, 19 Ves. Railway Co., 1 M. & K. 168; Earl of 449 ; Garstin v. Asplin, 1 Madd. 151 ; Ripon v. Hobart, 3 M. & K. 180 ; Saun- Jaokson v. Stanhope, 15 L. J. Ch. 446; ders v. Smith, 3 M. & C. 711, 730; Cuddon V. Morley, 7 Ha. 206. Great Western Railway Co. v. Oxford, (x) Lumley v. Wagner, 1 D. M. & Worcester, and Wolverliampton Rail- G.616. SeeAtt.-Gen.ti.Aspinall,2M. way Co., 3 D. M. & G. 341, 359. & C. 613. (6) Eateman v. Ramsay, Sau. & Sc. (y) Wandsworth Board of Works v. 459; Williams v. Roberts, 8 Ha. 325; London and South Western. Railway Edelsten v. Edelsten, 1 D.J. & S. 185. Co., 31 L. J. Ch. 854. See further, See Ewing v. Osbaldistone, 2 M. & C. infra. 53; Reynelli;. Sprye, 1D.M.& G.B79;; (z) Frewin v. Lewis, 4 M. & C. 254 ; supra, p 17. Lloyd V. London, Chatham, and Dover l An injury not alleged to be continu- Railway Co., 2 D. J. & S. 568. See ing is no ground for an injunction. infra. Coker v. Simpson, 7 Cal. 340. (a) Blakemore v. Glamorganshire [212] GH. XT. j BY INJUNCTIONS PENDING TRIAL OP RIGHTS. * 202 court (c). If in his dealings with the person against whom he seeks relief, or with third parties, he has acted in an unfair or inequitable manner, he cannot have relief ((^). 7. Parties who, possessing full knowledge of their rights, have lain by, and by their conduct have encouraged others to expend moneys or alter their condition in contravention of the rights for which they contend, cannot call upon the court for its summary interference (e).i Acquiescence by one of sev- eral co-plaintiffs in the act complained of precludes the interfer- ence of the court upon interlocutory application as much' as upon decree ; and the rule is the same although some of the plaintiffs are infants (/). The principle applies with peculiar force where the property on which the moneys are expended is mineral property (^), or property of a speculative char- acter (A), or if the *act complained of is caused by a * 202 public company in the execution and construction of tlieir works (^'). As the injury to a company 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 acquiescence on the part of the complainant a bar to relief (t). The extent of the ex- penditure is to a certain degree the measure of the acquies- cence (Je). 8. In order to justify the application of the principle, it must clearly appear that the party against whom acquiescence is alleged should have full knowledge of his rights, and should (c) Lloyd V. London, Chatham, and & C. C. C. 98 ; 13 L. J. Ch. 268 • Cless Dover Railway Co., 2 D. J. & S. 568 ; v. Edmondson, 8 D. M & G 808 • Button V. Furniss, 35 D. & J. Ch. 463. Ernest v. Vivian, 83 L. J. Ch 513 ,„1 ' ^'cholson V. Hooper, 4 M. & C. (A) See Crossley v. Derby Gas Lieht n^'^^P®"-^"^"^ ^™'='^™''°'9Sim. Co., Webst. P. C. 120; Neilson% 179; Edelsten v. Vick, 11 Ha. 86. See Thompson, ib. 275. '"•^".■-p. . , „ ,^ .,, , W Greenhaigh t). Manchester and (e) Birmingham Canal Co. v. Lloyd, Birmingham Bail way Co., 3 M. & C I? n' iiv '^"^^^ "•, ^^ai'l^er, 9 Ha. 784 ; Semple v. London and Birming- 16 ; Great Western Railway Co. w. Ox- ham Railway Co., 1 Ra. Ca. 120- ford Worcester and Wolverhampton Ware v. Regent's Canal Co., 3 D. &. j! Railway Co,, 8 D. M. & G. 341,354; 212. , ■^ •!■ c°™'^?i^T,^^°*'^S?-"^^J?S' ^ .^™- ^- (^) ^'■eat Western Railway Co. v. b.78 16Beav. 630; Pulling «. London, Oxford, Worcester, &c.. Railway Co. Chatham, and Dover Railway Co., 33 3 D. M. & G. 341, 361 ^','^:-Ph ®?^- ^®^ ™''™' P- *^- ' 1^<"'"» and Essex R. Co. v. Prud- /) Marker «. Marker, 9 Ha. 1, 16. den, 5 C. E. Green, 530 ; Goodin v. •dJ^'oS ?? w- Lord Granville, Cr. & Cincinnati and Whitewater Canal Co., Ph. 283; Prendergast v. Turton, 1 Y. 18 Ohio St. 169. - [213] ^203 PEOTECTION OP LEGAL EIGHTS TO PROPERTY [CH. XV. by his conduct have encouraged the other party to alter his condition, and that the latter should have acted upon the faith of the encouragement so held out (Z).^ There is no acquies- cence if the act has been permitted or the expenditure has been allowed to be made under an erroneous opinion and view, and in ignorance of the consequences (m). If both parties are equally ignorant of the consequences, or of the right which one of them, had he been aware of it, might have asserted, the one party cannot be made to suffer for his ignorance more than the other (n). Nor can there be acquiescence where there is uo injury to acquiesce in (o). 9. The acquiescence of an agent, when acting within the scope of his authority, is binding on the principal ; but in order that it should be binding, the agent must be acting within the scope of his authority (p). 10. A corporation or company may be bound by * 203 acquiescence as * well as an individual (g) ; but the rules respecting acquiescence which apply to an indi- vidual do not apply with the same strictness to a corporation or company (r). {I) Dann v. Spurrier, 7 Ves. 230; Barnard v. Wallis, Cr. &Ph. 89 ; Green- lialgh V. Manchester and Birmingham Eailway Co., 3 M. & C. 784 ; Marker V. Marker, 9 Ha. 16 ; Pentney v. Lynn Paving Commissioners, 13 W. R. 983 ; Ramsden u. Dyson, 1 L. E. H. L. 129 ; See supra, pp. 40-42. (m) Bankart w. Houghton, 27 Beav. 425, 431 ; Johnson v. Wyatt, 2 D. J. & S. 18. (n) Greenhalgh v. Manchester and Birmingham Railway Co., 3 M. & C. 784, 791; Bankart v. Houghton, 27 Bear. 425, 432. (o) Haines v. Taylor, 2 Ph. 209. (p) Att.-Gen. v. Briggs, 1 Jur. N. S. 1084. (q) Laird v. Birkenhead Eailway Co., John. 500; Curriers' Co. v. Corbett, 2 Dr. & Sm. 355 ; Hill v. South Stafford- shire Railway Co., 11 Jur. N. S. 192. (r) Curriers' Co. v. Corbett, 2 Dr. & Sm. 855. 1 " The kind of acquiescence which will conclude a party has been defined by eminent equity judges as being something not well expressed by that term. 'Now acquiescence is not the term [214] which ought to be used. If a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards com- plain. 'That is the proper sense of the word acquiescence.' " 2 Redfleld on Railways, 354 ; Hentz v. Long Island E. Co., 13 Barb. 647. Acquiescence, though not in the sense of conferring a right on the opposite party, but merely in the sense of de- priving the complainant of his right to the interference of a court of equity, will, of course, defeat an application for an injunction. Grey v. Ohio and Pennsylvania R. Co., 1 Grant's Cases, 412. See also Swain v. Seamens, 9 Wallace, 254 ; Irvine v. Irvine, ib. 618. Where a party seeks an injunction to restrain a violation of a covenant under a lease, and such covenant is a continu- ing covenant running with the land, and its violation is of constant recur- rence, his title to relief is not forfeited by long delay in making his application. The Society v. Low, 2 C. E. Green, 19. CH. XV.] BY INJUNCTIONS PENDING TRIAL OP EIGHTS. * 204 11. Tlie oouduct and dealings of a man with others than the .party with whom the. contest exists may constitute a case of acquiescence, so as to preclude him from coming to the court for relief against a state of things to which his own conduct has led (s). Where accordingly the owners of a canal hud permitted several persons to supply their mills with water for several purposes, the court would not restrain a man who had been allowed to lay down pipes to the canal from using the water in the same way as his neighbors (0- So also a land- lord who had relaxed in favor of some of his tenants a cove- nant entered into for tlie benefit of all of them, was held not entitled to an injunction to restrain the other tenants from in- fringing the covenant (m). 12. The mere objection to, or a mere protest on the part of the plaintiff against, the act of the defendant, or a mere threat to talce legal proceedings, is not in general sufficient to exclude the consequences of laches or acquiescence (a;), though it may be sufficient under the peculiar circumstances of the case (?/). Nor will the continual assertion of a claim unaccompanied by any act to give effect to it keep alive a right which would be otherwise precluded (z). But if moneys are expended on an undertaking after full and distinct notice that it is objected to, and that steps will be taken to prevent it (a), or with full * knowledge of the true condition of the title (6) ; * 204 or if the acquiescence is satisfactorily accounted for (s) Rundell v. Murray, Jac. 311 ; (z) Clegg v. Edmondson, 8 D. M. &. Saunders v. Smith, 3 M. & C. 730. G. 808. (t) Rochdale Canal Co. u. King, 2 (a) Att.-Gen. v. Sheflaeld Gas Co., Sim. N. S. 87; 3 I). M. & G. 304, 328 ; Rochdale Canal (u) Roper v. Williams, T. & R. 18. Co. v. King, 16 Bear. 643 ; Coles v. See infra. Simms, 5 D. M. & G. 1 ; Att-Gen. v. {x) Birmingham Canal Co. v. Lloyd, Luton Board of Health, 2 Jur. N. S. 18 Ves. 515; Prendergast v. Turton, 180; Gale v. Abbott, 8 Jur. N. S. 987. 1 Y. &C. C. C. 98, 13 L. J. Ch. 268; See Mancliester, Sheffield, and Lincoln- Att.-Gen. v. Sheffield Gas Co., 3 D. M. shire Railway Co. v. Worksop Board of & G. 304 ; Wicks v. Hunt, John. 374 ; Health, 23 Beav. 207. See also, as to Cooper V. Hubbuck, 30 Beav. 160. See notice, Jones v. Royal Canal Co., 2 Barrows v. Wall, 4 D. M. & G. 283. Moll. 319 ; Williams v. Earl of Jersey, iy) Buxton v. James, 5 De G. & S. Cr. & Ph. 97 ; lUingworth v. Manches- 84 ; Att.-Gen. v. Sheffield Gas Co., 3 ter and Leeds Railway Co., 2 Ra. Ca. D. M. & G. 304; Patching v. Dubbins, 209. Kay, 1; Coles v. Simms, 5 D. M. &.G. (6) Rennie v. Young, 2 D. & J. 142 ; 1; Scarisbrick V. Tunbridge, 3 Eq. Rep. Ramsdeu v. Dyson, 1 L. R. 11. L. 240. See Gordon v. Cheltenham Rail- 129. way Co., 5 Beav. 229, 238. [215] * 205 PEOTECTION OP LEGAL EIGHTS TO PEOPEETY [OH. XV. and explained (c), as, for instance, that it has taken place upon the faith of a representation that no grievance would result from or be produced by the act (c?), or upon the faith that ne- gotiations were going on between the parties with a view to the settlement of the dispute on points in contest between them (e) ; or if the delay is while the acts done are prelimi- nary to the acts against which he claims relief, and not such acts themselves (/), the consequences of acquiescence are excluded. Nor will a man be precluded from\ relief on the ground of acquiescence in what he was led to consider a mere temporary violation of his right (5'). Nor does the acquiescence in a state of things which produces little injury warrant the subsequent extension of them to an extent pro- ductive of serious damage {h). " It is impossible to contend," said Lord Romilly, M. R. (i), " that because a man has acqui- esced in the erection of certain works, which have produced little or no injury, he is not afterwards to have any remedy, if by the increase of the works at a subsequent period he sustains a serious injury. ... I am unable to accede to the ar- * 205 gument that he must be held to * have foreseen and assented, as a probable consequence, to the great and injurious additions which have been made to the works. He assented, it is true, to what was done and the consequences flowing necessarily therefrom, but no further. Those cases must be distinguished where the consequences of the act assented to are obvious and plain, and others where they are necessarily doubtful " (Jc). 1 (c) Goldsmid v. Tunbridge Wells Midland Railway Co., 1 Ea. Ca. 242 ; Commissioners, 1 t. R. Ch. Ap. 349. Att.-Gen. v. Luton Board of Health, 2 (d) Davies v. Marshall, 10 C. B. N. S. Jur. N. S. 182 ; Att.-Gen. v. Borough 711. See Rawlins v. Wickliam, 3 D. & of Birmingham, 4 K. & J. 546. J. 304. (h) Bankart v. Houghton, 27 Beav, (e) Innocent v. Midland Railway Co., 425 ; Western v. M'Dermott, 2 L. K. 1 Ra. Ca. 242 ; Lord Mexborougli v. Ch. Ap. 72. Bower, 2 L. T. 205 ; Earl of Lindsey (i) 27 Beav. 480. V. Great Northern Railway Co., 10 Ha. (h) See Northam Bridge and Roads 664 ; Foster v. Birm'ngham, Wolver- Co. v. London and South Western Rail- hampton, &c., Railway' Co., 2 W. R. way Co., 1 Ra. Ca. 653 ; Swaine v. 378. Great Northern Railway Co., 9 Jur. N. (/) Northam Bridge and Roads Co. I). S. 1196, 83 L. J. Ch. 399; Child v. London and South Western Railway Douglas, 5 D. M. & G. 739 ; Goldsmid Co., 1 Ra. Ca. 653. v. Tunbridge Wells Commissioners, 1 (g) Gordon v. Cheltenham Railway L. R. Ch. Ap. 349. Co., 5 Beav. 229, 238 ; Innocent v. North [216] CH. XV.J BY INJUNCTIONS PENDING TRIAL OF RIGHTS. * 206 13. A less strong degree of acquiescence is sufficient to dis- entitle a party to an interlocutory injunction than is required to debar him from relief at the hearing of the cause. At the hearing of the cause it is the duty of the court to decide upon the right of parties, and the dismissal of the bill upon the ground of acquiescence amounts to a decision that a right which has once existed is absolutely and for ever lost. In dismissing a bill upon interlocutory application, the court does not conclude a riglit, but merely refuses, in the exercise of its discretion, to interfere summarily in favor of a party who has not shown due diligence in making the apphcation (Z). "A short acquiescence," said Lord Langdale, in Gordon v. Chel- tenham Railway Company (m), " may properly induce the court not to interfere ex parte. A longer acquiescence may, under the circumstances, throw serious doubt upon the right of the plaintiff, and induce the court not to interfere by inter- locutory order even when applied for on notice. But when acquiescence is used as an argument in support of a demurrer, there must, to make it effective, be such an acquiescence as . wholly to disentitle the plaintiff to any relief. It must . be assumed that the plaintiff had originally a right, but that he has altogether deprived himself of it by acquiescence." 14. Delay, though it may not amount to proof of acquies- cence, may be sufficient to disentitle a man to the summary interference of the court by interlocutory injunction (n). But * delay in taking proceedings is not material so long * 206 as matters remain in statu quo (o). 15. The bill must allege the substance of the ground of relief, and should state at once fully the entire case on which the claim to relief is founded (p) . If the bill do not allege {1} Patching v. Dubbins, Kay, 11 ; See Barker v. North Staffordshire Rail- Imperial Gas Co. V. Broadbent, 7 H. L. way Co., 5 Ra. Ca. 401 ; Wintle v. 611 ; Pulling v. London, Chatham, and Bristol and South Wales Railway Co., Dover Railway Co., 33 L. J. Ch. 505; 10 "W. R. 210. Johnson v. Wyatt, 2 D. J. & S. 18, 25. (o) Rochdale Canal Co. v. King, 2 (m) 5 Bear. 233. Sim. N. S. 78; Gale w. Abbott, 8 Jur. (n) Att.-Gen. v. Sheffield Gas Co., N. S. 987 ; Archbold v. Scully, 9 H. L. 3 D. M. & G. 304 ; Great Western Rail- 388. See, as to waste, infra. way Co. V. Oxford, Worcester, &c., (p) Barker v. North Staffordshire Railway Co., *. 363 ; Pickfordw. Grand Railway Co., 2 De G. & S. 55, 5 Ra. Ca. Junction Railway Co., 3 Ra. Ca. 538, 401 ; Herz v. Union Bank of London, 1 559 ; Wicks v. Hunt, John. 372; Ware J-ur. N. S. 127 ; Nokes v. Pish, 3 Drew. V. Regent's Canal Co., 3 D. & J. 230. 785. [217] * 207 PROTECTION OP LEGAL RIGHTS TO PROPERTY [CH. XT. the state of things on which the relief is founded, the relief prayed cannot be given, although the facts may appear by the evidence. Every minute fact need not be stated, but the sub- stance of the ground for relief must appear on the bill (^q). There must be such certainty in the averments of title upon which the bill is founded, that the defendant rnay be distinctly informed of the case which he is called upon to meet (r). Mere general allegations are not enough (s). A general alle- gation that the defendant admits the title of the plaintiff is too vague («) ; nor can an allegation which states a material circumstance, not positively as a fact, but as an allegation made by another, be sustained (u). A statement that a party alleges a certain thing to be so and so cannot be considered as a positive- statement that the thing is so and so (a;) ; nor is a statement that the defendant alleges and the plaintiff believes the fact to be a sufficient allegation of a material fact («/). But a charge that the contrary of a pretence is the truth is equivalent to an allegation of the negative of the fact pre- tended (a). * 207 16. * The allegations in the bill must be supported by affidavits, so as to show on the face of the evidence that they are well founded (a). 17. The application for an injunction must be made by a party having sufficient interest (6). A man who has no per- sonal interest in the matter cannot move for an injunction, even though he may have been made a party to the suit (c). 'Nor can a man come into court to complain of an injury affect- ing the private property of another (c^). Nor can relief be had if it can be satisfactorily shown that a suit has been instituted merely for the purposes of or at the instigation of (q) Nokes v. Fish, 3 Drew. 735. (z) Harrison v. Wiltshire, i L. J. Ch. ()■) Att.-Gen. v. Corporation of Nor- N. S. 260; Mayor, &o., of Eochester v. wioh, 2 M. & C. 406 ; Banks v. Carter, Lee, 15 L. J. Ch. 97. 12 Jur. 366 ; Houghton v. Reynolds, 2 (a) Magnay v. Mines Royal Co., 3 Ha. 264, Mitf PI. 45 ; Sheard v. Webb, Drew. 130, 133. Sese further, infra. 2 W. R. 343. (b) Wynne v. Lord Newborough, 1 (s) Wormald u. De Lisle, 3 Bear. 18. Ves.Jr. 164; Leake o. Beckett, 1 Y. (t) Crowther v. Crowther, 23 Beav. & J. 339. See infra. 305. (c) Hunter v. Nockolds, 15 L. J. Ch. (u) White V. Smale, 22 Beav. 72. 320, 7 L. T. 41. {x) Hammond v. Messenger, 9 Sim. {d) Att.-Gen. v. United Kingdom 327. Electric T^egraph, 30 Beav. 287. (y) Egremont v. Cowell, 5 Beav. 620. [218] CH. XV.] BY INJUNCTIONS PENDING TRIAL OP EIGHTS. * 208 another (e). The court will not interfere on behalf of a man wlio claims relief not through direct equities of his own, but indirectly through the equities of other parties, on which equities those parties themselves do not insist (/). If the act complained of affects the public interest, the suit should be instituted by the attorney-general at the instance of a rela^ tor (g). If the act complained of affects the common right of a number of persons whose interest is identical in a judicial point of view, the suit should be instituted by one or more of them suing on behalf of the others (A). The suit cannot be maintained against several persons for distinct and separate invasions of a right (i). One teuanfin common may, however, sue alone in respect of the wrong done to himself (A). 18. A man who has assigned or disposed of his interest iu the subject-matter should not be made a party to the suit (I). But * the parting by a defendant with his * 208' interest after the filing of the bill does not disentitle the plaintiff to an injunction (m). 19. Where there is a case for an injunction, and the injunc- tion will operate for the benefit of parties not before the court, the absence of those parties, though a ground of demurrer to the bill, will not prevent the court from interfering. It is enough that the property sought to "be protected is really in danger (n). In cases of injunction the court frequently acts for parties in their absence (o) ; but where the injunction would have the effect of injuring materially the rights of those (c) Pentney U.Lynn Paving Commis- Hawkins v. Gardiner, 1 W. R 345- sioners, 13 W. E. 983. See Forrest v. Soarisbrick v. Tunbridge, 3 Eg. Rep' Manchester, Sheffield, and Lincolnshire 240; Saunders v. Saunders 3 Drew Railway Co., 7 Jur. N. S. 887. 387 ; Clements v. Welles, 1 L. R. Eq! (/) Roberts v. Bozon, .3 L.J. Ch. 200. See Matthews w. King, 3 H. & C. 113- 910. r^ '« i^t*'"9i®"' "• Comptou, 1 Y. & C. (m) Bird v. Lake, 1 H. & M. 121. fe' of}!' °°^*^""- ^^ Held, 2 Sim. (n) Const v. Harris, T. & R. 514: ,, ,■ \. , °^® "''™- ^^a°s V. Coventry, 5 D. M. & G. 911. (A) Mozley v. Alston, 1 Ph. 790. See See Walworth v. Holt, 4 M. & C. 619 ■ "r^'r^-u T^ ■ „ ,r , Ackroyd u. Briggs, 14 W. R. 25. (0 Dilly y. Doig, 2 Ves. Jr. 486; (o) Const v. Harris, T. & R. 514; Hudson i;. Maddison, 12 Sim. 416 ; Pol- Evans v. Coventry, 5 D. M. & G. 911 ■ lock y. Lester, 11 Ha. 274. Herries v. Griffiths, 2 W. R. 72. See 15 l7 '^•S-.f- -,^r"/Pi°;,^ ■^- ^ ^- ^^^ ' M'Beath V. Ravenscroft, 8 L. J. Ch. N. Batty V. Hill, 1 H. & M. 264. S. 208. {1} Sweet V. Maugham, 11 Sim. 51 ; [219] * 209 PROTECTION OP LEGAL RIGHTS TO PROPERTY [CH. XV. persons not before the court, the court will not ordinarily and without special necessity interfere (j»).-' 20. The court, upon the application for an interlocutory injunction in support of a legal right, will deal with the injunc- tion upon the evidence before it, and will confine itself strictly to the immediate object sought, and as far as possible abstain from prejudging the question in the cause (g-). If a fair primd facie case be made out, and the case is free from objec- tions of an equitable i3onsideration, several courses are open to the court. Which of them will be adopted is always a matter for the discretion of the court, but, in the absence of special circumstances, the leading principle which is the rule of the court and limits its discretion is, that only such a restraint shall be imposed as may stop the mischief complained of, and keep the property in its actual condition until the hearing (r). If the case, as made out, is plain and free from doubt, * 209 the court may, * in the exercise of its discretion, deter- mine the question at once, and grant an injunction without putting the parties to any further expense and delay (s^ ; but the case should be very clear for the court to adopt this course (t}. If the defendant disputes the legal title of the plaintiff or denies the fact of its violation, the court will seldom, however clear the case may in its opinion be, grant an injunction without putting the plaintiff to establish his legal right (m). The court should even at times, for its own security, require the legal right to be established, whether it be asked or not, and not leave the matter to the option of (p) Hartlepool Gaa and Water Co. v. (u) Bacon v. Jones, 4 M. & C. 436 ; West Hartlepool Harbor and Railway Duke of Beaufort y. Morris, 6 Ha. 349; Co., 12 L. T. N. S. 366. See M'Beath Campbell v. Scott, 11 Sim. 31 ; Norton V. RaTenscroft, 8 L. J. Cli. N. S. 208. v. Nicholls, 4 K. & J. 478; Mayor of (g) Skinners' Co. v. Irish Society, 1 Cardiff v. Cardiff Waterworks Co., 4 M. & C. 162 ; Muuro v. Wivenhoe, &c., D. & J. 596 ; Eaden !;. f • i^ damages from not being allowed to use {k) Betts v. De Vitre, 34 L. J. Ch. a vessel, De Mattos v. Gibson, 7 Jur. 289. N. S. 282. See Cory v. Thames Iron, (1) 21 & 22 Vict. c. 27, s. 6 ; 25 & 26 &c., Co., 11 W. E. 589. See, as to time Vict. c. 42, s. 2 ; Cory v. Thames Iron, for reference as to damages, Southworth &c., Co., 11 W. E. 589. V. Taylor, 28 Beav. 616 ; supra, p. 219. (m) Novello v. James, 5 D. M. & G. (/) Eastwood V. Lever, 33 L, J. 355. 876. (g) Catton v. Wyld, 32 Beav. 266. [235] •225 PERPETUAL INJUNCTIONS. [CH. XT. SECTION III. — PERPETUAL INJUNCTIONS. — MANDATORY IN- JUNCTIONS. 1. After the establislimeiit of his legal right and the fact of its violation, plaintiff is generally entitled as of, course to a perpetual injunction. 2. Such injunction not refused merely because nominal damages only recovered at law. 3. Principles applied to interlocutory injunction in respeCt to acquiescence and delay equally applicable to perpetual injunctions. 4. Suits for injunctions do not usually go to the hearing. 5. Perpetual injunctions not granted before the hearing. 6. Kight to an account of profits is incidental to the right to an injunction. 7. Practice in reference thereto. 8 — 11. Practice in reference to costs. Mandatory Injunctions. 12. Character of mandatory injunctions and principles upon which they are issued. 13. Due diligence should be used in making application for same. 14. Bill for mandatory injunction should not pray for preventive remedy. 15. Mandatory injunction seldom granted before hearing. 1. After the establishment of his legal right and the fact of its violation, a man is in general entitled as of course to a per- petual injunction to prevent the recurrence of the wrong, unless there be something special in the circumstances of the case (»). The jurisdiction is founded on the equity of relieving a man from the necessity of bringing action after action at law for every, violation of a common law right, and of finally quieting the right, after a case has received such full decision as entitles a man to be protected against further trials of the * 225 right (o) . * The award of an arbitrator is for the pur- poses of the injunction as good as a verdict (p). The court will not in general grant a perpetual injunction until the right and the violation of the right have been established, upon trial (5') ; but if a case be presented which satisfies the mind of the judge that such a course would, if aqlopted, do justice between the parties, the court may grant a perpetual injunction without providing for a trial of the right (r). (n) Woodti. Sutoliffe, 2 Sim. N. S. Ha. 340; Gray «. Liverpool and Bury 166 ; Imperial Gas Co. v. Broadbent, Railway Co., 4 Ea. Ca. 260 ; Imperial 7H. L. 612. I Gas Co. v. Broadbent, 7 H. L. 600; (0) Ih. ; Lowndes v. Bettle, 33 L. J. Potts v. Levy, 2 Drew. 272. Ch. 451. See supra, m. 132, 134. (r) Bacon v. Jones, 4 M. & C. 439 ; (p) Imperial Gas Cfo. v. Broadbent, 7 Cuddon v. Morley, 7 Ha. 206 ; Potts v. H. L. 600. Levy, 2 Drew. 272. (j) Duke of Beaufort v. Morris, 6 [236] CH. XV.] PEEPETUAL INJUNCTIONS. * 226 2. The mere fact that trifling or merely nominal damages may have been recovered at law is not a ground for concluding that the right is not one which should be protected by per- petual injunction (s) ; but the minuteness of the damage may be a ground for the refusal of the court to interfere {t). The court will in general have regard not only to the dry strict rights of the plaintiff and defendant, but also to the surround- ing circumstances, before it exercises the jurisdiction (m). The consideration of the balance of convenience and incon- venience in granting or withholding the injunction is not neglected by the court. If the granting the injunction would have the effect of inflicting serious damages upon the defendant without restoring or tending to restore the plaintiff to the position in which he originally stood, or doing him any real practical good (a;), or if the mischief complained of can be propeiiy, fully, and adequately compensated by a pecuniary sum (y), an injunction will uot issue. If, on the other hand, the mischief complained of is of so material a nature that it cannot be properly, fully, and adequately compensated by a pe- cuniary sum, and the granting an injunction will restore or tend to restore the parties to the position in * which * 226 they formerly stood and have a right to stand, it is the duty of the court to interfere by perpetual injunction, notwithstanding the serious damage caused thereby to the de- fendant (2). The fact of an appeal pending at law is not a bar to an injunction, although it may influence the decision of the court as to the date at which the injunction should commence. The court will not hold its hand upon the ground of a decision being appealed from, unless it has some doubt of the justice of that decision (a). If a considerable time must necessarily (s) Rochdale Canal Co. v. King, 2 166. See Durell v. Prltchard, 1 L. R. Sim. N. S. 78, 16 Beav. 638. Ch. Ap. 244. (() Wood V. Sutoliffe, 2 Sim. K S. (2) Wood v. SutcUffe, 2 Sim. N. S. 166. 166; Bankart v. Houghton, 27 Beav. («) lb. ; but see infra as to cases 431 ; Imperial Gas Co. r. Broadbent, depending upon coTenant or contract. 7 H. L. 600 ; Tipping r. St. Helen's (x) Wood V. Sutcliffe, 2 Sim. N. S. Smelting Co., 1 L. R. Ch. Ap. 66 ; 163 ; Bankart v. Houghton, 27 Beav. Stokes v. City Offices Co., 13 L. T. N. 431; hut see infra as to cases depend- S. 81; Att.-Gen. w. Proprietors of Brad- ing on covenant or contract. ford Canal, 2 L. R. Eq. 71. (y) Wood V. Sutcliffe, 2 Sim. N. S. (a) Att.-Gen. v. Proprietors of Brad- . ford Canal, ib. [287] * 227 PERPETUAL INJUNCTIONS. [CH. XT. elapse to enable the parties to comply with an injunction with- out being put to grievous atinoyance and expense, the court will order that the injunction do not commence until after the lapse of a certain stated period (6). 3. The principles of the court with respect to delay and acquiescence which apply to the case of applications for inter- locutory injunctions are equally applicable to the case of appli- cations for perpetual injunctions. To justify the court in refusing to interfere at the hearing, there must, it is true, be a stronger case of acquiescence than is sufficient to be a bar on the interlocutory application (c), but the same principle applies in both places. A man who, possessing a full knowledge of his rights, has lain by and has by his conduct encouraged oth- ers to expend moneys in contravention of the rights for which he afterwards contends, cannot come to the court for relief by perpetual injunction, however clear his right or whatever may be the value of the right, but must rest satisfied with such damages as a jury will give {d}. A. man may by acquies- cence not only preclude himself from being able to dero- * 227 gate from a state of * things which has been brought about by his own conduct, but may even give the adverse party a right to the interference of the court in the event of his complaining at law (e). But the court will not act upon light grounds against the legal rights of the parties. It requires a clear and strong case to lead the court to deprive a man of his right at law to prevent a particular act being done, or his right to recover damages if it be done. There must be fraud or such acquiescence as in the view of the court would make it a fraud in him afterwards to insist iipon his legal right (/). 4. Suits for an injunction to restrain the violation of a com- mon law right do not generally go to the hearing. The interlocu- (J) Att.-Gen. ». Proprietors of Brad- 8 Jur. N. S. 987; supra, p. 41-13, ford Canal, 2 L. R. Eq. 71. 205. (c) Johnson c;. Wyatt, 2 D.J. & S. (e) Barrett u. Blagrave, 6 Ves. 104; 18; supra, 205. WiUiams v. Earl of Jersey, Cr. & Ph. {d] Dann v. Spurrier, 7 Ves. 231, 97. 235 ; Rochdale Canal Co. v. King, 2 (/) Macher v. Eonndling Hospital, 1 Sim. N. S. 78, 16 Beav. 630 ; "Wood v. V. & B. 188 ; Gerrard v. O'Eeilly, 3 Sutcliffe, 2 Sim. N. S. 169; Davies v. Dr. & War. 414; Att.-Gen. v. Briggs, Marshall, 10 C. B. N. S. 703, 1 Dr. & 1 Jur. N. S. 1084; Bankart v. Hough- Sm. 557. See Imperial Gas Co. v. ton, 27 Beav. 431; supra, p. 41-43, Broadbent, 7 H. L. 600 ; Gale y. Abbott, 205. [238] CH. XV.] PERPETUAL INJUNCTIONS. * 228 tory injunction is generally submitted to by the defendant, and the plaintiff is generally satisfied with the submission, and feels himself sufficiently protected. But he may^ if he pleases, bring the suit to a hearing. He does not, however, usually do so unless he rules an account, or unless the plaintiff denies him some other relief to which he is entitled. 6. A perpetual injunction will not be granted before the hearing (g). But an injunction may by consent be made perpetual on motion (A). A man is not bound to apply by motion in the first instance. He may obtain a perpetual injunction at the hearing, although he has not applied for an injunction on interlocutory application (i). But he should take care to bring his case to the hearing in such a state as to enable the court to adjudicate upon it without delay. If he neglects to do so it is a mere matter of discretion how far the court will assist him at the hearing, or whether it will assist him at all {k}. 6. If the act complained of involves the making of profits, the * right to an account of profits is incidental * 228 to the right to an injunction. There can in general be no account if the case for an injunction fails, or if at the hear- ing there is nothing on which an injunction can operate Q). The account is limited to the profits actually made and the moneys actually received by the wrong-doer. There can be no account in respect, of acts unattended with profit (?n). The account is of all profits actually made for six years prior to the filing of the bill (w). An account will not be granted if there be delay in filing the bill (o). 284, (?) Day V. Snee, 3 V. & B. 171. Cotton, 3 Atk. 751, 1 Ves. 524 546 (A) Morrell v. Pearson, 12 Bear. Infra, p. 284. , f: . „ „ „ , ^(™) Colburn «. Simms, 2 Ha. 560; (z) Bacon v. Jones, 4 M. & C. 436 ; Powell v. Aikin, 4 K. & J 343 351 Collins Co. W.Walker, 7 W. R. 222; Infra, p. 2S6. Davies v. Marshall, 1 Dr. & Sm. 557 ; (n) Crossley v. Derby Gas Lieht Co Gale w. Abbott, 8 Jur, N. S. 987. 1 Webs. 119, 120; Dean v Thwaite (k) Bacon v. Jones, 4 M. & C. 436 ; 21 Beav. 623. See further infra d Ward V. Key, 10 Jur. 792 ; Rodgers v. 286. ' J > e Nowill, 6 Ha. 331 ; Norton v. NichoUs, (o) Crossley v. Derby Gas Light Co. 4 K. & J. 475 ; Patent Type Founding 4 L. J. Ch. N. S. 25, 1 Webs. 119 120 • Co. V. Walter, Johns. 731. Parrott v. Palmer, 3 M. & K. 643 ; (/) Baily v. Taylor, 1 E. & M. 73 ; Harrison v. Taylor, 11 Jur. N. S. 408. Price's Candle Co. v. Bauwen's Candle See Bagot v. Bagot, 32 Bear. 509 Co., 4 K. & J. 727. Comp. Garth v. Infra, p. 286. [239] * 229 PERPETUAL INJUNCTIONS. [cH. XV. 7. In consequence of the difficulty of working out a decree for an account of profits, such an account is usually taken. A reasonable compromise is generally found to be most for the benefit of the parties (p). If the amount of profits for which the defendant would have to account is small, the plaintiff usually waives the account (g'), and if the defendant submits, the suit does not proceed to the hearing, but a decretal order is made, giving effect to the agreement between the parties. The plaintiff is entitled to discovery for the purposes of the account (r). 8. Suits for an injunction to restrain the violation of a legal right do not usually go to the hearing. The interlocutory injunc- tion is generally submitted to by the defendant if upon trial the legal right is found to be in favor of the plaintiff, and the costs being paid by the defendant up to that time, the plaintiff is generally satisfied and feels himself sufficiently protected, but he has a right, if he thinks fit, to bring the cause to a hearing. If, however, the defendant offers to submit to the injunction with costs, and to give the plaintiff all the other relief to which he may be under the circumstances of * 229 * the case entitled, and no account is sought or the account is waived, the court, though it may give the plaintiff the decree, will not give him the costs of the subse- quent prosecution of the suit up to the hearing (s). The tender must include the costs of the suit up to the time when the tender is made (t}. If the defendant does not offer to submit to the injunction and pay all the costs up to that time (u), or if, although he offers to submit to the injunction, he refuses to pay the costs or to give the plaintiff any of the other relief to which he is entitled, the plaintiff is entitled to (p) Crossley w. Derby Gas Light Co., (() Fradella ». WeUer, 2 R. & M. 247 ; 3M. &C.436. Geary v. Norton, 1 De G. & S. 12; (q) See Fradella v. Weller, 2 R. & Jamieson v. Teague, 3 Jur. N. S. 1206; M. 247. Burgess v. Hill, 26 Beav. 244 ; Remnant (r) See infra. v. Hood, 27 Bear. 74;'M'Andrew (s) Millington w. Fox, 3 M. &C.352; !j. Bassett, 33 L J. Ch. 561; Meet v. Colburn u. Simms, 2 Ha. 561-; Chappell Gouston, 33 Beav. 578; Nunn v. V. Davidson, 2 K. & J. 123 ; Nunn v. D'Albuquerque, 34 Beav. 596. See D 'Albuquerque, 34 Beav. 595 ; Harvey Dan. Ch. Pr, 1277. V. Eerguson, 15 Ir. Ch. 277 ; Hudson v. (u) Potts v. Levy, 2 Drew. 272. Bennett, 12 Jur. N. S. 519. See Dan. Ch. Pr. 1277. [240] CH. XT.] PERPETUAL INJUNCTIONS. * 230 bring the suit to a hearing, and will have tlie costs of the suit (as). If both parties are in the wrong, ^he one claiming more than he is entitled to claim, and the other offering less than he was bound to offer, costs will not be given to either side (2/). 9. A bond fide offer from the defendant before suit to give the plaintiff all the relief to which he is entitled, and which he ultimately obtains by the suit, may be a reason for depriving him of the costs of it (z). In Edelsten v. Edelsten (a), how- ever. Lord Westbury said he could not take notice of negotia- tions antecedent to the suit, save in case of bad faith, unless they amounted to a release or binding agreement with respect to the cause of action. But in other cases it has been held * that a bond fide offer of the terms which are sub- * 230 sequently imposed by the court is sufficient to deprive a plaintiff of the costs of the suit (b). A man, however, whose legal right has been invaded is under no obligation to make an application to the defendant before filing his bill for an injunction (c). 10. If the costs of the suit have been increased by an alle- gation in the bill which is untrue, such increased costs will have to be paid by the plaintiff, although his case may be sub- stantially established (c?). 11. The costs of the suit are often disposed of on interlocu- tory application before decree (e).-' (x) Fradella v. Weller, 2 E. & M. 29, 37 ; Nesbitt v. Berridge, 32 Beav 247 ; Geary v. Norton, 1 De G. & S. 12 ; 282. Kelley v. Hooper, 1 Y. & C. C. C. 197 ; (c) Burgess v. Hill, 26 Bear. 244 • Colburu V. Simms, 2 Ha. 561 ; Jamie- Burgess v. Hateley, ib. 249. ' son V. Teague, 3 Jur. N. S. 1206; (d) Pierce v. Franks, 15 L. J. Ch Cliappell V. Davidson, 2 K. & J. 123; 122. See Dan. Ch. Pr. 1286. Burgess v. Hill, 26 Beav. 244 ; Burgess (e) Morg. and Dav. on Costs, 47- V. Hateley, ib. 249 ; M' Andrew v. Bas- 62. As to the costs of motions see sett, 33 L. J. Ch. 561. Mounsey v. Earl of Lonsdale, and Attor- iy) Moet t). Couston, 33 Beav. 578. ney-Generalv.Earlof Lonsdale, 10 Law See Rochdale Canal Co. •>. King, 16 Rep. Eq. Ca. 557. The old established Beav. 630 ; Pearce v. Wycombe Rail- rule, that the court of appeal will not way Co., 17 Jur. 660 ; Nunn v. D'Albu- give the costs of the appeal to a suc- querque, 34 Beav. 595 ; Ainsworth v. cessful appellant, except under special Walmesley, 1 L. R. Eq. 518. circumstances, is still in force. If the (z) Millington v. Fox, 3 M. & C. 338 ; court does not specially give the costs, Colburn v. Simms, 2 Ha. 543, 561 ; the appellant is not entitled to them Chappell V. Davidson, 2 K. & J. 123 ; 6 Law Rep. Ch. Ap. 138. WilHams v. Thomas, 2 Dr. & Sm. 29, 1 Where a bill has been dismissed or 37. See Woodman v. Robinson, 2 Sim. demurrer allowed, and another bill is. N. S. 204. filed for the same matter, proceedings (a) ID. J. & S. 185, 203. will be stayed in the second suit lb) Williams v. Thomas, 2 Dr. & Sm. till the costs of the former are paid. Updike V. Bartles, 2 Beasley, 231. 16 [241] * 231 MANDATORY INJUNCTIONS. [CH. XV. Mandatory Injunctions. 12. Though a court of equity has no jurisdiction to compel the performance of a positive act tending to alter the existing state of things, such as the removal of a work already ex- ecuted, it may, by framing the order in an indirect form, com- pel a defendant to restore things to their former condition, and so effectuate the same results as would be obtained by ordering a positive act to be done. The order when framed in such a form is called a mandatory injunction. The jurisdic- tion has been questioned (/), but its existence must be admitted as beyond all doubt (^).i It must, however, be" exercised with caution, and is strictly confined to cases where the remedy at law is inadequate for the purposes of justice, and the restoring things to their former condition is the only remedy which will meet the requirements of the case. * 231 If there is a full and complete remedy at * law, or if the injury done can be sufficiently estimated and properly compensated by a pecuniary sum, there is no case for a man- datory injunction (A). The court will not interfere by way of mandatory injunction without taking into consideration the (/) Blakemore v. Glamorganshire reachedby the chancellor that a manda- Eailway Co., 1 M. & K. 184. tory injunction, or one which commands (ijf) Robinson v. Lord Byron, 1 Bro. the defendant to do some positive act, C. C. 588 ; Great North of England, &o., will not he ordered except upon final Railway Co. w. Clarence Railway Co., hearing, and then only to execute the de- 1 Coll. 507 ; Hervey v. Smith, 1 K. & J. cree or judgment of the court, and never 392; Att.-Gen. v. Borough of Birming- on a preliminary or interlocutory mo- ham, 4 K. & J. 547. See Isenberg v. tion, or that if it ever does so issue, it East India House Co., 33 L. J. Ch. is only in cases of obstruction to ease- 392. ments or rights of like nature, in which a [h] Deere w. Guest, 1 M. & C. 516; structure erected and kept as the means Wicks w. Hunt, John. 372; Att.-Gen. v. of preventing such enjoyment will be Conservators of Thames, 1 H. & M. 1 ; ordered to be removed, as part of the Isenberg v. East India House, &c., Co., means of restraining the defendant 33 L. J. Ch. 392 ; Doran v. Carroll, 11 from interrupting the enjoyment of the Ir. Ch. 379 ; Durell v. Pritchard, 1 L. right. In this case it was held, that an R. Ch. Ap. 244. injunction will not be granted to com- 1 See Pierce v. New Orleans, 18 La. pel a common carrier to transport goods Ann. 242. A mandatory order is noth- at the rates fixed by law, but will be ing more than a decree of specific per- to prevent a railway company bound formance, which is every day's practice Ijy law to transport goods from enter- in courts of equity, and which is sel- ing into an agreement not to transport dom denied, unless where the remedy them at the rates fixed by law. Notice at law is perfectly adequate. 2 Redfield in this connection that a bill in equity on Railways, 356 ; Sears v. Boston, 16 does not lie at the instance of a private Pick. 357. The authorities upon the individual to enforce the performance subject of mandatory injunctions are re- of a public duty by a corporation in the viewed in The Rogers Locomotive and absence of any special right or author- Machine Works V. Erie Railway Co., 5 ity. Buck Mountain Coal Co. v. Lehigh C. B. Green, 387, and the conclusion Coal and Nav. Co., 50 Penn. St. 91. r2421 CH. XV.] MANDATORY INJUNCTIONS. * 232 compai-ative convenience and inconvenience which the grant- ing or withholding the injunction would cause to the parties. If the injury done is capable of being fully and abundantly compensated by a pecuniary sum, while the inconvenience to the other party from granting an injunction would be serious, the court will not interpose by way of mandatory injunction, but will either direct an inquiry before itself in order to ascer- tain the measure of damages that has been actually sustained, or will, on dismissing the bill, reserve to the plaintiff his right to proceed at law(^■). If, on the other hand, the injury is of so serious or material a character that the restoring- things to their former condition is the only remedy which will meet the requirements of the case, or if the act complained of is in breach of an express stipulation, the injunction will issue, notwithstanding the amount of inconvenience to the other party (k}. If the act complained of is continued ox carried on after clear and distinct notice that it is objected to, the, jurisdiction will be exercised more freely than in cases where complaint is not made until after it is completed (?) ; but the mere fact that the act. complained of has been continued or carried on after notice of objection is not of itself a sufficient ground for the exercise of the jurisdiction, if the injury done can be amply, abundantly, and properly compensated by a pecuniary sum (ni). There is no rule which prevents the court from granting a mandatory injunction where * the injury sought to be restrained has been completed * 232 before the filing of the bill (w). 13. A man who comes to the court for a mandatory injunc- tion should use due diligence in making the application. Mere (i) Jacomb v. Knight, 32 X. J. Ch. (n) Durell v. Pritchard, 1 L. R. Ch. 602 ; Isenberg v. East India House, 244. See Low v. Innes, 10 Jur. N. S. &c., Co., 33 L. J. Ch. 392. See Low 1037 ; Curriers' Co. v. Corbett, 11 Jur. V. Innes, 10 Jur. N. S. 1037. N. S. 719; Martyr v. Lawrence, 2 D. {k) Isenberg v. East India House, J. & S. 261 ; Martin v. Headon, 2 L. &c., Co., 33 L. J. Ch. 392 ; DureU v. R. Eq. 425. In Attorney-General v. Pritchard, 1 L. R. Ch. Ap. 244. See Mid-Kent Railway Co. and South East- Low V. Innes, 10 Jur. N. S. 1037 ; Mar- em Railway Co., 3 Law Rep. Ch. Ap. tin V. Headon, 2 L. R. Eq. 425, infra. 100, the principles of the court as to [l) Jacomb v. Knight, 32 L. J. Ch. granting mandatory injunctions are 601 ; Hepburn v. Lordan, 2 H. & M. considered with reference to the diflfer- 345 ; Beadel v. Perry, 8 L. R. Eq. 465. ence between cases of nuisance and (m) Isenbet-g v. East India House, cases of contract, and to the suit being &c., Co., 33 L. J. Ch. 392. by an individual or by the Attorney- General. [248] * 233 INJUNCTIONS UNDER THE COMMON LAW [CH. XV. delay will not be fatal to the application if no mischief is caused thereby to the defendant, and the delay does not exceed a rea- sonable period (o); but the right to a mandatory injunction is gone if there has been unreasonable delay, and mischief would be caused thereby to the defendant (p'). 14. A bill for a mandatory injunction should not pray for a preventive remedy. There can be no case for prevention where what is asked to be prevented has been actually done (q). 15. A mandatory injunction is seldom granted before thehear- ing (r), but it may be had upon interlocutory application (s). The application need not be made before the hearing (t}. SECTION IV.— INJUNCTIONS UNDEE THE COMMON LAW PEO- CEDUEE ACT, 1854. 1-4. Provisions and construction of statute conferring upon common law courts power to issue injunctions. 1. Until recently the writ of injunction was the pecuhar remedy of the court of chancery. Birt by the Comndon Law Procedure Act, 1854, it was enacted that in all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action, he may claim a writ of injunction against the repetition or continuance of such breach of contract or other injury, or the committal of any * 233 breach of * contract, or injury of a like kind, arising out of the same contract relating to the same property or right ; and he may also include in the same action a claim for damages or other redress (u) ; and judgment may be given that the writ of injunction do or do not issue, as justice may require, and in case of such disobedience such injunction may be enforced by attachment (v'). (o) Gale V. AbBott, 8 Jur. N. S. 987. Robinson v. Lord Byron, 1 Bro. C. C. Ip) "Wicks V. Hunt, John. 372 ; Ward 588 ; Eankin v. Huskisson, 4 Sim. 13; V. Higgs, 12 W. E. 1074. See Att- Hervey u. Smith, 1 K. & J. 392; Att- Gen. V. Manchester and Leeds Rail- Gen. k. Metropolitan Board of Works, way Co., 1 Ra. Ca. 436 ; supra, p. 226. 1 H. & M. 312; Hepburn v. Lordan, 2 Iq) Curriers' Co. v. Corbett, 11 Jur. H. & M. 352. N. S. 719. it) Gale v. Abbott, 8 Jur. N. S. 987. (r) Gale v. Abbott, 8 Jur. N. S. 987. (m) 17 & 18 Vict. c. 125, s. 79. See Child v. Douglas, Kay, 578. (v) lb., s. 81. See Jessell v. Chap- (s) Lane v. Newdigate, 10 Ves. 192; Un, 2 Jur. N. S. 931. [2441 CH. XV.] PEOCEDUEB ACT, 1854. * 234 2. The plaintiff may also, at any time after the commence- ment of the action, and whether before or after judgment, ap- ply ex parte to the court or judge for a writ of injunction to restrain the defendant in such action from the repetition or continuance of the wrongful act or breach of contract com- plained of, or the committal of any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right, and such right may be granted or denied by the court or judge on such terms as to such court or judge shall seem reasonable and just, and may be enforced by attachment (x). 3. The act only confers lipon courts of law a concurrent jurisdiction with courts of equity by way of injunction in cer- tain cases, and does not oust the jurisdiction of courts of equity in such matters («/). The act does not give courts of law power to grant an injunction against a threatened injury, but only in cases where the wrongful act has been actually com- menced. The powers, moreover, given by the act can be used only against the defendant or defendants in the particular ac- tion, and can only affect them as to acts which they themselves do or authorize to be done. It must therefore in many cases fail entirely to provide tiie remedy sought by the injured party (»). 4. The rule for a writ of injunction under sec. 82 is a rule to show cause only in the first instance (a). The writ may be granted or denied upon such terms as to the duration of the * writ, keeping an account, giving security or * 234 otherwise, as to the court or a judge shall seem rea- sonable and just (5). An injunction under the clause is, un- less the duration of the writ is expressly limited, a continuing injunction. If it is disobeyed at any time, the plaintiff may apply to the court, or, if the court be not sitting, to a judge, to enforce it by attachment (c). (x) 17 & 18 Vict. u. 125, s. 82. Loudon, Chatham, and Dover Rail- \y) Hodgson v. Duce, 4 W. E. 576. way Co., 3 H. & C. 95. \z) See Matthews v. King, 3 H. & C. (a) Gittins v. Simes, 15 C. B. 362. 910, 12 Jur. N. S. App. 335. See, as to (6) 76. demurrers to the declaration, Bilke v. (c) De la Eue v. Forteseue, 2 H. & N. 324. [245] 235 INJUNCTIONS AGAINST WASTE. [CH. XVI. *235 * CHAPTER XVI. INJUNCTIONS AGAINST WASTE. SECTION I. — PRINCIPLES ON WHICH THE COURT ACTS IN RESTRAINING WASTE. 1. Court proceeds on same principles as in other cases for protection of legal rights ; not limited to cases where an action at law can be maintained. 2. Court will not interfere if waste be of a trivial nature, unless intent to commit further waste be shown, > 3. Mere apprehension of waste not sufficient. 4. Requisites of plaintiff's pleadings. ^ 5. He must waive all forfeitures, penalties, &c. 6. Absence of parties to be benefited will not prevent injunction. 7. Plaintiff should use diligence in making application, but delay is not so prejudicial as in some other cases. 1. The jurisdiction of courts of equity in restraining, waste by injunction is founded upon the equity of protecting- property from irreparable injury. In caseSi of legal waste, or cases which are cognizable at common law, the jurisdiction is in aid of the legal right, and has been assumed for the purpose of protecting the property pending the trial of the right. The court interferes on the assumption that the plaintiff has a good title at law to the right which he asserts, but needs the aid of the court for the protection of his property until the right can be established upon trial. The principles on which the court interferes are the same as those upon which it proceeds in other cases where its interposition is sought for the protection of legal rights (a). The jurisdiction is not, however, limited to cases where an action at law can be maintained, but extends to cases where, in consequence of the infirmity of legal pro- cess, there is neither a right nor a remedy at law, but only what the law in principle acknowledges to be a wrong (b). Thus as early as the reign of King Richard the Second an (6) 3 D. E. & J. 55, 254, per Turner, (a) Supra, p. 196, 208, 209. L.J. [246] CH. XVI.] INJUNCTIONS AGAINST WASTE. * 236 injunction was granted at the suit of a remainder-man to stay- waste by a tenant for life or for years, although the existenpe of an intermediate life estate formed a temporary impediment to an action at law (c) .^ So also where there was a tenant for life, subject to waste, remainder for life, dispunishable of waste, * remainder in fee, the court would not permit * 236 an agreement between the two tenants for life to commit waste to take effect against the remainder-man (<^). So also "where there is a tenant for life, remainder for life, with re- niainders over, the court will restrain the first tenant for life on the bill of the remainder-man for life (e), without making the owner of the inheritance a party (/). So also an injunc- tion to stay waste has been granted on behalf of an infant en ventre sa mere (^).^ 2. It is not necessary for a man to wait until a serious act of waste has been committed, before applying to the court for its interference by injunction (A). But the court will not interfere where the waste is trivial and of small extent (i), or where the person against whom relief is sought has stopped committing waste since the filing of the bill (]e). If, however, an intention to commit further waste can be shown, the court (c) Moore, 554; Eoswell's case, 1 bill in equity cannot be maintained to Roll. Ab. 377, pi. 13; Farrant v. Lov- restrain from committing waste one ell, 3 Atk. 723. who is in exclusive possession, — claim- (d) Lady Evelyn's case, cit. 2 Preem. ing, colorably at least, the absolute 54, 1 Dick. 209 ; Fleming v. Bishop of estate, until the plaintiff has established Carlisle, cit. 1 Dick. 209 ; Abraham v. his title at law, — or at all events an Bubb, 2 Freem. 52 ; Tracy v. Tracy, 1 injunction will be granted only when Vern. 23 ; Robinson v. Litton, 3 Atk. the plaintiff is endeavoring to establish 210. See also Birch-Wolfe v. Birch, 9 his title at law, and until he has a rea- Law Rep. Eq. Ca. 683. sonable time allowed for that purpose. (e) Tracy v. Tracy, 1 Vern. 23 ; Per- For the court of equity acts in such rot V. Perrot, 3 Atk. 95. cases, not as superseding the jurisdie- (/) Dayrell v. Champneys, 1 Eq. Ca. tion of the courts of law over a legal Ab. 400, cit. 1 Dick. 197, 198. See title, but only in aid of a legal remedy, MoUineux v. Powell, 3 P. W. 268, n. defective because dilatory. Bogey v. (g) Luttrel's case, cit. Prec. Ch. 50, Shute, 4 Jones Eq. 174 ; Irwin v. Da- 2 V ern. 710 ; Robinson v. Litton, 3 Atk. vidson, 3 Ired. Eq. 311 ; Smith v, Rome, 211. 19 Geo. 89. (h) Gibson v. Smith, 2 Atk. 182 ; 2 Where an executory trust for the Cofiin V. Coffin, Jac. 71. settlement of freehold estates "in strict (i) Brace v. Taylor, 2 Atk. 253 ; settlement " directs either expressly or Barry v. Barry, 1 J. & W. 653 ; Lam- by reference to the trusts of other prop- bert V. Lambert, 2 Ir. Eq. 210 ; Doran erty that certain persons shall take Ufe V. Carroll, 11 Ir. Ch. 383. estates, the use of the words " in strict (k) Barry w. Barry, 1 J. & W. 653. settlement " does not make the tenants Comp. Anon., 3 Atk. 485. for life dispunishable for waste. Stanley 1 ]i North Carolina it is held that a v. Coulthurst, 10 Law Rep. Eq. Ca. 259. [247] *237 INJUNCTIONS AGAINST WASTE. [CH. XTI. will interfere, though the first acts of waste may have been of a trivial nature (Z) ; but where waste of one kind has been done or threatened, the injunction will not be extended to waste of another kind (ot). If one act of waste be established as well in equitable as in legal waste, the court will restrain the equitable waste generally (w). 3. The court has jurisdiction, if a fair case of prospective injury can be made out, to interfere before waste has been actually committed (o). The mere apprehension or belief that waste will be committed is not sufficient (p) ; but if an intention to commit waste can be shown to exist, or if a * 237 man insists on his * right or threatens to commit waste, there is a foundation for the exercise of the jurisdic- tion (^q) . 4. A man who applies for an injunction against waste is required to show a particular title. An affidavit generally that the plaintiff is entitled in fee-simple (r), or an affidavit as to information and belief, is not sufficient (s). Positive evidence of title is necessary (i). The plaintiff should also by his affidavit state some actual violation of his right, or a sufficient ground to apprehend it. An affidavit merely as to his appre- hension that the defendant intends to commit waste, without stating any ground for it, is not sufficient. There must be some fact, like the marking of trees, sending a surveyor, or some threat (m). 5. A bill cannot be filed to restrain waste without waiving all forfeitures, penalties, &c. (a;). The words "on pain of forfeiture " after a prohibition against the commission of waste does not take away the rights and remedies which arise from the prohibition itself, but will be regarded as having been in- {l) Coffin V. Coffin, Jac. 71 ; Barry Jac. 71 ; Barry v. Barry, 1 J. & W. V. Barry, 1 J. & "W". 653; Doran v. 650; CampbeU v. AUgood, 17 Beav. Carroll, 11 Ir. Cli. 383. 628 ; Doran v. Carroll, 11 Ir. Ch. 379. (m) Coffin V. Coffin, Jao. 72. (r) Whitelegg v. Whitelegg, 1 Bro. (n) Coffin V. Coffin, 6 Madd. 17. C. C. 57. (o) See supra, p. 197. (s) Davies v. Leo, 6 Ves. 784. (p) Hanson v. Gardiner, 7 Ves. 307 ; (<) lb. See supra, p. 206. Potts V. Potts, 3 L. J. Ch. 176 ; Camp- (u) Gibson v. Smith, 2 Atk. 182 ; bell V. AUgood, 17 Beav. 628. Jackson v. Cater, 5 Ves. 688 ; Hanson (q) Gibson v. Smith, 2 Atk. 182; u. Gardiner, 7 Ves. 309. Kobinson v. Litton, *. 209 ; Hanson v. (x) 1 Atk. 451, Mitf. PI. 162; supra, Gardiner, 7 Ves. 309 ; Coffin v. Coffin, p. 198. [248] CH. XVI.] INJUNCTIONS AGAINST WASTE. * 238 serted merely as a more effectual means of enforcing the obli- gation (?/). 6. If there is a case for an injunction, and the injunction will operate for the benefit of parties not before the covirt, the absence of those parties will not prevent the court from inter- fering by injunction (s). The purchasers of timber wrong- fully cut by a tenant for life are not necessary parties to a bill for an injunction to restrain him from selling the timber (a). 7. A man who comes to the court for an injunction against waste should use due diligence in making the applica- tion (6). * Delay, however, is not so prejudicial to the * 238 plaintiff in cases of waste as in other applications for injunctions. In some cases, indeed, delay is not material. A man, for instance, who has been permitted to cut down half of the trees upon the land of another, can acquire no title from the negligence of the owner to cut down the remaining half (c) . Nor can tenants who have been in the habit of cutting turf or working quarries for many years acquire a title as against their landlord to continue to do so (c?). Nor is a man who buys land used by tenants for making bricks, or who purchases land with notice that the land was being converted into a burying- ground, precluded from complaining of waste committed after the purchase (e). The case, however, is different if the tenant for life or lessee has been encouraged by the acquiescence of the reversioner or lessee to expend moneys upon the property upon the faith and understanding that no obstacle will be afterwards thrown in the way of their enjoyment (/). In the case of mines the utmost promptitude in making the applica- tion is requisite (gr). (y) Blake v. Peters, 1 D. J. & S. (d) Lord Courtown v. Ward, 1 Sch. 346. & Lef. 8 ; Lord Waterpark v. Austin, (z) Const V. Harris, T. & E. 514 ; 1 Jon. 627, n. Ackroyd v. Briggs, 14 W. E. 25. (e) Cregan v. Cullen, 16 Ir. Ch. 339. (a) Marker v. Marker, 9 Ha. 1. See (/) Barry v. Barry, 1 J. & W. 651. further, as to parties, Wentworth v. See supra, pp. 41-43, 201. Turner, 3 Ves. 3 ; Kingston v. Kings- (g) Norway v. Rowe, 19 Ves. 159 ; ton, 2 Moll. 412; supra, pp. 207, 208. Field v. Beaumont, 1 Sw. 204; Hilton (6) Barry v. Barry, 1 J. & W. 651. v. Lord GranviUe, Cr. & Ph. 283; Par- See Bagot V. Bagot, 82 Beav. 509. rott v. Palmer, 3 M. & K. 635 ; Clegg (c) Att.-Gen. v. Eastlake, 11 Ha. v. Edmondson, 8 D. M. & G. 808. 228, per Wood, V. C. [249] 239 LEGAL WASTE. [CH. XVI. SECTION II. — LEGAL WASTE. 1. Definition of waste. 2. Damage must be done to the inheritance. How it may*be done. 3. Waste either voluntary or permissive. 4. Waste at common law punishable only in certain cases. 5. Waste in trees. 6. What trees regarded as timber trees. 7. Certain other trees which may be timber from the situation in which they grow. 8. Not waste to cut other trees in ordinary cases. 9. Exception to these rules in case of estates called timber estates. 10. Not waste to cut underwood and coppice. 11. Nor dead trees. 12. Exception of trees, how construed. 13. Construction of covenants as to trees. 14. Eights of copyholder in timber. 15-18. Kight of estovers defined. 19'. What is waste in gardens and orchards. 20. In parks, ponds, warrens, &c. 21. In sea-walls and banks of rivers. 22-28. In mines, &c. 29^ Estovers of gravel, clay, and minerals. 30&31. Turbary. 32. Power by statute to alienate mineral property. 33 & 34. Interest of copyholder in mines, clay, gravel, &c. 35. Waste by alteration of the character of land. 36 & 37. By bad cultivation of land. 38. In buildings. 39. In respect to covenant to repair. 40. Permissive waste ; generally court of equity will not interfere. 41 & 42. Waste as to fixtures. 43. When to be removed, if removable at all. 44. Between whom questions as to fixtures may arise, and how construed. 1. Waste is a substantial injury to the inheritance done by one having a limited estate either of freehold or for years dur- ing the continuance of his estate (A). The essential character of waste is, that the party committing it is in rightful posses- sion, and that there is a privity of title between the par- ties (i). 2. The consequences of waste do not attach unless substan- - tial damage is done to the inheritance, which may be * 239 either, — 1st, by * diminishing the value of the estate ; 2dly, by increasing the burdens upon it ; or, 3dly, by {h) Co; Litt. 53 a ; 1 Cr. Dig. 115. 222 ; Lowndes v. Settle, 33 L. J. Ch. (i) Davenport v. Davenport, 7 Ha. 451. [250] CH. XVI.] LEGAL WASTE. * 240 impairing the evidence of title (A). An act wliich increases tlie value of an estate may nevertheless be waste if it impairs the evidence of title or increases the burdens on the property. The owner of the inheritance has a right, if he pleases, to require that the nature and character of the property shall not be changed by the owner of the limited estate. The mere fact that the evidence of title may be impaired by the alteration renders it waste. Waste which increases the value of property is called meliorating waste (Z). 3. Waste is either voluntary or permissive. Voluntary waste consists in the commission of acts which the owner of the limited estate has no authority to do, such as cutting tim- ber, pulling down buildings, opening mines, and the like. Permissive waste arises from the omission of acts which it is his duty to do, as, for example, permitting buildings to go to decay by neglecting to repair them (m). 4. At common law waste was punishable only in the case of tenant in dower, tenant by the curtesy, and guardian. These estates being the creation of law, the law annexed to them the condition that waste should be neither done nor permitted. A tenant for life or for years was not at common law liable for waste in the absence of an express stipulation to that effect in the instrument by which his estate was created. An estate for life being not the creation of the law, but of the parties to the instrument, the law would not imply a condition against waste in cases where no provision to that effect was made (w). This defect in the law was remedied by the Statutes of Marlbridge, 52 Hen. 3, c. 23, and Gloucester, 6 Bdw. 1, c. 5, which ex- tended the protection of the writ of waste which lay at com- mon law to tenants for life and tenants for years. 5. Timber trees are parcel of the inheritance. A tenant for life * or years, or other owner of a limited * 240 estate, has only a right to their shade and fruit during {k) Doe V. Earl of Burlington, 5 B. v. Amherst, 2 Ph. 123 ; Coppinger v. & Ad. 507, 517 ; Huntley v. Russell, 13 Gubbins, 8 J. & L. 417. Q. B. 872, 588. (m) Co. Lltt. 53 a ; White v. M'Cann, (I) 2 WiUiam Saund. 259 ; Simmons 1 Ir. C. L. 205. V. Norton, 7 Bing. 649; Duke of Leeds (n) 2 Inst. 145, 299; Green v. Cole, 2 "William Saund. 252. [251] * 241 LEGAL WASTE. [CH. XVL the continuance of his estate (o). It is waste if he cuts them down (^), or does any act to impair their value or cause them to decay, as if he lops or tops them Qq). The cutting of timber which is over-ripe or in a state of decay is waste (r). Even if a lease be of land, -trees, &c., expressly mentioning the trees, the lessee has no right to cut them (s). 6. Timber trees are such as are useful for the purpose of building. Oak, ash, and elm, of the age of twenty years and upwards, are timber in all places (i), and by the custom of different counties, other trees, such as birch, beech, walnut, whitethorn, willow, blackthorn, hornbeam, &c.,are timber (u). 7. The cutting of many sorts of trees, which are not other- wise timber, as hornbeams, hazels, willow^, sallows, &c., &c., may, from the situation in which they are placed, be considered waste, as if they support a bank, or grow within the site of or shelter a house, or stand in a field, or are used as shelter by cattle (x).^ 8. It is not waste to cut down trees which are not timber either by law or custom, or from the situation in which they are placed, unless some special prejudice arises thereby to the inheritance («/). Nor is the proper and regular thinning of a wood for the purpose of improving the rest of the trees, waste, provided it be done in a reasonable and husbandlike * 241 manner (2). * But the destruction of germens or young plants destined to become trees, which destroys (o) 4 Co. Rep. 62 b; 11 Co. Rep. 5-7 ; Tool on Waste, 22 ; Craig on Trees, 50 a ; 1 Roll. Ab. 181 ; Berriman v. Pea- 11. cock, 9 Ring. 384 ; Alexander v. Godley, {x) Co. Litt. 53 a ; Darcy v. Askwith, 6 Ir. C. L. 458. Hob. 234; Philipps v. Smith, 14 M. & (p) Co. Lltt. 53 a. W. 593 ; Craig on Trees, 12. (q) lb. (y) Co. Litt. 53 a; Barrett v. Bar- (r) Perrott v. Perrott, 3 Atk. 95. rett, Het. 36 ; Philipps «. Smith, 14 See now 19 & 20 Vict. c. 120, s. 11. M. & W. 589. See Pratt v. Brett, 2 (s) LifiFord's case, 11 Co. Rep. 46 b ; Madd. 62. Dyer, 374, pi. 18; Shep. Touch. 95; (z) Pidgeley w. BawUng, 2 Coll. 275 ; Herring v. Dean and Chapter of St. Earl Cowley v. Wellesley, 1 L. R. Eg. Paul's, 3 Sw. 512. 656. See Bagot v. Bagot, 32 Beav. (i) Co. Litt. 53 a ; 2 Roll. Ab. 814 ; 509. Dyer, 65 a. i. It seems that in a case of sufficient (u) Co. Litt. 53 a ; Barrett v. Bar- importance the cutting of trees stand- rett, Het. 36 ; Cook v. Cook, Cro. Car. ing on the line between adjoining pro- 531 ; Duke of Chandos v. Talbot, 2 P. prietors may be restrained by injunc- Wms. 606 ; Gordon v. Woodford, 27 tion. Relyea v. Bearer, 34 Barb. 647 ; Beav. 603 ; Cruise, Dig. tit. 3, ch. 2, ss. and see cases cited. * [252] CH. SVI.] LEGAL WASTE. * 242 the future timber, is waste (a). The turning of goats into a young wood is waste (&). 9. The general rules with respect to waste in timber are subject to exceptions in the case of what are called timber estates, where severed timber is for many purposes to be treated as annual rents and profits (c). 10. It is not waste to cut hedges, bushes, and underwood, and even oaks and ashes which have been usually cut as un- derwood, provided the cutting be done in a reasonable and husbandlike manner, and so as not to eradicate or destroy the germens or prevent their future growth (oT). Nor is it waste to cut timber where the underwood is the most important part of the produce, and the cutting of timber is necessary for its growth (e). 11. It is not waste to fell trees which are completely dead and bear neither fruit nor leaves (/), and have not sufficient timber in them for buildings or posts (^r). 12. Trees which have been excepted out of a demise may not be cut down by the tenant (A). An exception of trees generally applies only to timber trees, and not to apple or other fruit trees, or the like (i). Where the exception was of timber and * other trees, but not the annual * 242 fruit thereof^ it was held that apple trees were not within it, because it was to be construed strictly against the lessor (¥). 13. A tenant who has covenanted to deliver up all the trees (a) Co. Litt. 53 a; Gage o. Smith, Beav. 486; Bagot v. Bagot, 32 Bear. Godb. 210; Philipps v. Smith, 14 M. & '509; Earl Cowley -u. Wellesley, 1 L. W. 589. R. Eq. 656. (b) Eogers v. Price, 13 Jur. 820. (e) Knight v. Duplessis, 2 Ves. 361. See Doe v. Price, 8 C. B. 894. See 16 Ves. 179 ; Earl Cowley v. (c) Ferrand v. Wilson, 4 Ha. 375 ; Wellesley, 1 L. R. Bq. 656. Briggs V. Lord Oxford, 1 D. M. & G. (/) Co. Litt. 53 a; 2 EoU. Ah. 814. 363; Bridges v. Stephens, 2 Sw. 150, (g) Manwood's case, Moor. 101; n. ; Lord Lovat v. Duchess of Leeds, 2 Dyer, 332 ; Gibbon on Dilap. 215. Dr. & S. 75. See Oxenden v. Lord (A) Heydon v. Smith, Godb. 173 ; Compton, 2 Ves. Jr. 69. Goodright v. Vivian, 8 East, 190. See (d) 2Eoll. Ab. 815; Co. Litt. 53 a; Legh v. Heald, 1 B. & A. 622; Doe Darcy v. Askwith, Hob. 234 ; Gage v. dem. Douglas v. Lock, 2 A. & E. 705 ; Smith, Godb. 210 ; Pratt v. Brett, 2 Pentland v. SomerTille, 2 Jr. Ch. 289 ; Madd. 62; Brydges v. Stephens, 6 Doe v. Price, 8 C. B. 894; Allen o. Madd. 279 ; Humphreys v. Harrison, 1 Carver, 15 Ir. C. L. 547. J. & W. 581 ; Pidgeley v. Eawling, 2 (i) Wyndham v. Way, 4 Taunt. 316. Coll. 275 ; Philipps v. Smith, 14 M. & (h) BuUen v. Dunning, 5 B. & C. W. 589 ; Bateman v. Hotchkin, 31 842. See further Craig on Trees, 15. [253] * 243 LEGAL WASTE. [CH. XVI. standing in an orchard at the time of the demise, reasonable use and wear only excepted, is not precluded from removing trees decayed and past bearing from a part of the orchard which is too crowded (Z) ; but if there be in the demise a covenant not to remove or grub up trees, the tenant cannot remove trees from one part of the premises to another, unless they are dead, even although he plants more trees than he removes (m). Where in a lease of a farm and the quarries upon the premises, with power for the tenant to open and work the quarries, all timber trees, trees likely to become timber, saplings, &c., were excepted, and there was also a covenant on the part of the tenant not to commit any waste by cutting down any timber trees or trees likely to become timber, sap- lings, &c., it was held that the effect of the covenant was that the tenant should not so cut any of the trees excepted, as that such cutting should amount to an excess of the right which it was intended he should exercise, and, therefore, that cutting trees in a manner necessary to a reasonable exercise of the power to get the stone was no breach of the covenant (n). 14. A copyholder, being considered in law to be a tenant at will, has in general the same possessory interest in the trees as, he has in the land. He is equally as incapable of cutting down trees or doing any other act to the injury of the free- hold except with the lord's concurrence, as a tenant for life or years of freehold land is without the concurrence of those in whom the remainder in fee-simple is vested (o) . But by custom a copyholder of inheritance, or a copyholder for life, with power to renew and nominate his successor, may have * 243 the right to fell * timber upon his tenement and retain the same for his own use (p) . The custom could not be supported in the case of a copyholder for life or for years (?) ; but a copyholder of inheritance who has the right by custom may give the right to a particular tenant for life whose estate is carved out of his inheritance (r). The lord cannot, any more (l) Doe dem. Jones v. Crouch, 2 (p) Blewett v. Jenkins, 12 C. B. N. Camp. 449. S. 16. See Scriv. on Cop. 420. (m) Doe V. Bird, 6 C. & P. 195. [q) Scriv. on Cop. 420; 6 H. & N. (n) Doe V. Price, 8 C. B. 894. See 125, per WilUams, J. Allen V. Carver, 15 Ir. C. L. 544. (r) Scriv. on Cop. 420 ; Denn v. (o) Scriven on Cop. 420. Johnson, 10 East, 266. [254] CH. XVI.] LEGAL WASTE. * 244 than the copyholder, cut down trees upon the tenement of a 'copyholder, without a custom authorizing him to do so (s). 15. A tenant for life or for years has the right to cut timber by way of estovers for the necessary repairs of the house and principal buildings, the fences, gates, and agricultural imple- ments. If there is no underwood, he may also cut, or at least lop, timber for the purpose of firewood (t}. He has this privi- lege of common right, but the estovers must be reasonable (m). The right to estovers attaches as a right to the particular estate on which they have been taken. Estovers cut on one estate cannot be used on another (i;). A tenant for life or for years may cut timber to repair houses which he is not strictly bound to repair (») ; but he may not cut timber to make new fences or to build new houses, or to repair houses which he has wasted or suifered to be wasted (^z). Nor can he cut tim- ber for the purpose of working mines (z), or burning bricks (a), or generally for agricultural purposes (6). The cutting of timber which is not fit for repairs (c), or the cutting of more timber than is * necessary for repairs (c?), is waste. * 244 But if timber be cut down bond fide for the purpose of being used in repairs, the tenant is justified, though he may have over-calculated the quantity required (e). The timber cut must be applied specifically towards the actual repairs for which it has been cut. It cannot be sold for the purpose of raising money for the purchase of other timber (/), or for the purpose of defraying the expenses of past or contemplated re- pairs (^) ; nor can it be exchanged for other timber better (s) Whitechurch o. Holworthy, 19 (tj) Co. Litt. 53 b ; 2 Roll. Ab. 815 ; Ves. 212. Darcy v. Askwith, Hob. 234. (t) Manwood's case, Moor. 101 ; 2 (z) Darcy v. Askwith, ih., Hutt. 19. Eoll. Ab. 823; Co. Litt. 41b; Tin. Ab. (a) Livingston v. Reynolds, 26 Waste; Com. Dig. Waste; Craig on Wend. (Amer.) 115. Trees, 4. See Howley v. Jebb, 8 Ir. (6) Jackson v. Brownson, 7 Johns. C. L. 435. See, as to covenant by (Amer.) 228. lessee to repair, "having or taking (c) Simmons u. Norton, 7 Bing. 648. sufficient housebote, and without com- [d) Co. Litt. 53 b. mitting waste." Dean, and Chapter of (e) East v. Harding, Cro. Eliz. 498 ; Bristol V. Jones, 1 El. & El. 484. Doe v. Wilson, 11 East, 56. (w) Co. Litt. 41 b. (/) Co. Litt. 53 b ; Lewis Bowie's (v) Lee V. Alston, 1 Bro. C. C. 194, case, 11' Co. Rep. 82 a; Simmons v. 3 Bro. C. C. 37, 1 Ves. Jr. 78 ; Nash v. Norton, 7 Bing. 648. Earl of Derby, 2 Vern. 537. (g) Gorges v. Stanfield, Cro. Eliz. [x) Co. Litt. 54 b. See Sarles v. 598 ; Lee v. Alston, 1 Bro. C. C. 194, 3 Sarles, 3 Sandf. Ch. (Amer.) 601. Bro. C. C. 37; Goweru. Eyre, Coop. 156. [255] * 245 LEGAL WASTE. [CH. X¥L adapted for the repaii'S in question (A). It is waste even if tlie same wood which has been sold be bought back again (i). 16. Timber may not be cut for the purpose of firewood as long as there is any dry or decayed wood or underwood on the land (¥). The right to firebote is limited to the taking of sufficient wood for the principal dwelling-house or mansion on the estate, and does not extend to firewood for farmers or laborers ; nor could a custom to that effect be supported (l). 17. A copyholder is entitled to estovers by custom, and it would appear that he is entitled to them of common right even without a custom (m). 18. The committee of a lunatic's estate may cut timber for repairs as a prudent owner would do (n). 19. The cutting of fruit trees growing in a garden or orchard is waste, unless they have been torn up by the wind (o). But it is not waste to cut fruit trees which do not grow in a garden or orchard, but grow scatteringly, on divers places of * 245 the *land (f>). The ploughing up a strawberry-bed before it is exhausted is waste (g). 20. It is waste if the tenant of a dove-house, warren, park, fish-pond, or the like, take so many of the animals that the per- petuity of succession is destroyed (r) ; or suffer the pale of the park to decay so that the deer escape, or permit the banks of the fish-pond to get out of repair so that the fish escape or the pond dries up (s). If the lessee of a warren by charter or prescription plough up the land, it is waste (€) ; but it is other- wise if it be only land stored with conies and not a legal war- ren ; and stopping up and digging cony burrows is not waste in a warren (u). Deer in a lawful park are part of the inheri- (A) Att.-Gen. K. Stawell, 2Anst. 601. son, 2 Beav. 129. See Philipps v. (i) Co. Litt. 53 fa. See, as to wood Smith, 14 M. & W. 494. cut for repairs by ecclesiastical persons, (p) Bro. Ab. Waste, pi. 143. infra. (q) Watherell v. Hcwells, 1 Camp. (k) 2 EoU. Ab. 820, pi. 9 ; Co. Litt. 227. 53 b ; Cruise, Dig. 80 ; Cole v. Peyson, (r) Co. Litt. 53 b ; Hob. 234 ; Vava- 1 Ch. Ca. 106 ; Jackson v. Brownson, 7 sour's case, 2 Leon. 222 ; Anon., 4LeT. Johns. Ch. (Amer.) 228. 240 ; Kimpton v. Eve, 2 V. & B. 349 ; (I) Sarles >/. Sarles, 3 Sand. Ch. Ford v. Tynte, 2 J. & H. 150. (Amer.) 601. (s) Co. Litt. 53 a ; Hob. 234 ; Bathurst (m) Heydon's case, 13 Co. Eep. 67 ; v. Burden, 2 Bro. C. C. 64. Scriven on Cop. 424, 425. (() Co. Litt. 53 b ; Angerstein v. (n) Ex parte Ludlow, 2 Atk. 407. Hunt, 6 Ves. 487. (o) Co. Litt. 53 a; Littler u. Thomp- (w) Lurting v. Conn, 1 Ir. Ch. 278. [256] CH. XTT.J LEGAL WASTE. * 246 taiice : it is waste in a tenant for life to do any thing to sever the deer from the inheritance ; and it seems that reclaiming deer is an act of waste, because it makes them no longer venison in a park, but chattels like any other domesticated animals («). 21. It is waste to suffer a wall of the sea to be in decay, so as by the flowing and reflowing of the sea the meadow or marsh be surrounded, whereby it becomes unprofitable ; but if it be surrounded suddenly by the rage and violence of the sea, without any default of the tenant, it is not waste («/). So also it is waste if the tenant do not repair the banks or walls against rivers or other waters, whereby the meadows or marshes be surrounded and become rushy and unprofitable («). 22. It is waste if a tenant for life or for years dig for clay, gravel, lime, brick-earth, minerals, stones, or the like (a). If there be a grant of lands, or of lands and mines expressly, he may dig and take the profits of mines, gravel-pits, or clay-pits, open at the time of the grant, or which a preceding tenant in tail under *the settlement,. or other person *246 rightfully entitled to open, may have opened, but he may not open new ones (6). Nor does a power to lease with the mines land on which there are both open and unopened mines authorize a lease of unopened mines (e). Lord Coke says that if there be no open mines, and a lease is made of the land with all mines therein, then the lessee may open and dig mines therein, otherwise the grant would be void (d) ; but the dictum is of d6ubtful authority (e). 23. As a tenant for life or years is entitled to continue the (x) Ford V. Tynte, 2 J. & H. 153, per berland, 13 Ves. 236 ; Viner v. Vaughan, Wood, V. C. See Morgan v. Lord 2 Bear. 469 ; Huntley v. Russell, 13 Q. Abergavenny, 8 C. B. 768. B. 591 ; Bagot v. Bagot, 32 Beav. 509 ; (y) Co. Litt. 53 b ; Bro. Ab. "Waste. Earl Cowley v. WeUesley, 1 L. R. Eq. (z) Co. Litt. 53 b ; Callis on Sewers, 656 : Clegg v. Rowland, 2 L. R. Ea. 146. 160. (a) Bro. Ab. Waste, pi. 93 ; Co. Litt. (c) Clegg v. Rowland, 2 L. R. Eq. 53 b ; 2 Roll. Ab. 816. 160. Comp. Daly v. Beckett, 24 Beav. {h) Co. Litt. 54 b ; Saunders' case, 114. 5 Co. Rep. 12 a ; Bishop of London {d) Co. Litt. 54 b ; Saunders' case, V. Webb, 1 P. Wms. 528 ; Whitfield v. 5 Co. Rep. 12 a. See Darcy v. Ask- Bewit, 2 P. Wms. 240 ; Clavering v. with. Hob. 234. Clavering, 2 P. Wms. 389 ; Sel. Ca. (c) Whitfield v. Bewit, 2 P. Wms. Ch.79, Mose.219; Plymouth w. Archer, 240. Comp. Coppinger v. Gubbins, 1 Bro. C. C. 159 ; Mitchell v. Dors, 6 8 J. & L. 397. See Yool on Waste, Ves. 147 ; Grey v. Duke of Northum- 54. " [257] * 247 LEGAL WASTE. [CH. XTI. working of mines which were open at the time he came in, so he may use all means necessary for working them. .He may, if it can be done without any special damage to the inheritance, sink new shafts and pits to follow the same vein of coal (/),or to reach new seams lying under the old seams (jf). But it is doubtful whether he has a right to open pits or mines which have been abandoned, or the preparations for opening which have not been completed. The question must always depend on the circumstances of each particular case (Ji). There seems to be no . authority on the question whether a new vein or bed may be worked by means of an old shaft (i). 24. When the Crown has only a bare reservation of royal mines without any right of entry, it cannot by prerogative grant a license to dig up the soil and search for mines ; but if the mines are open, the Crown can restrain the owner of * 247 the soil from * working them, and can work them itself or grant a license to others to work them (Ji). 25. A tenant for life or years has no right to minerals deposited on the land by mountain streams (J). 26. The rule that a tenant for life or years may continue the working of open mines, gravel or clay pits, does not, it would appear, extend to the case of quarries of limestone (m). 27. The words " mines and minerals " in an instrument include stone gotten by underground working, unless there is something in the nature or context of the deed to show that it was not intended to be included (w). As distinguished from a mine, a quarry refers to a place upon, or above, and not under the ground, whereas the word " mine " refers to under- ground workings (o). 28. The reservation of minerals includes all reasonable means of getting them (p). (/) Whitfield V. Bewit, 2 P. Wms. {n) Bell v. Wilson, 1 L. E. Ch. Ap. 240; Clavering v. Clavering, ib. 388; 303. Stone is a mineral. Everything Viner v. Vaughan, 2 Beav. 469. beyond the surface comes within the (a) Spencer v. Scurr, 31 Beav. 334. reservation of minerals in a grant of (A) Viner v. Vaughan, 2 Beav. 469 ; land. Midland Railway Co. v. Checkley, Bagot V. Bagot, 32 Beav. 509, 516. 15 W. K. 671. (i) Yool on Waste, 55. (o) lb. „ (k) Lyddall v. Weston, 2 Atk. 20, \p) Earl of Cardigan v. Armitage, 2 per Lord Hardwioke. B. & C. 197. See Harris i. Rydmg, (Z)Thomasi;.Jones,lY.&C.C.C.520. 5M.&W.60; Goold w. Great Western (m) Mansfield v. Crawford, 9 Ir. Eq._ Deep Coal Co., 2 D. J. & S.600. 271 ; i'urcell v. Nash, 1 Jon. 625. r2581 OH. XVI.] LEGAL WASTE. * 248 29. A tenant for life or years may take reasonable estovers of gravel and clay for the repairs of buildings, although the pits were not open at the date of the grant or demise (§'). There may be also estovers of brick-earth, lime, or the like, for the reparation of buildings or manuring the land (r). So also may there be estovers of coal (s). If there are open quarries of limestone on the land, the tenants may work them for estovers (i). 30. A tenant for life or years of land comprising turfs haS a right to cut by way of estovers as many turfs as may be reasonably sufficient for consumption on the premises by way of firebote (m) ; but he may not cut turfs for the pur- poses of * sale («), unless turfs have always been so * 248 cut, or unless there is no other mode of enjoying the land (y). 31. The right of turbary only applies to turfs adapted for the purposes of fuel, and does net apply to turfs of grass (2) . 32. By a recent statute any tenaiit for life, even though he may have incumbered his interest, may make, in certain cases, absolute or partial alienation of his mineral property (a). 33. A copyholder, whether of inheritance or for life, or for years only, has the same possessory interest in mines as he has in trees (6). By custom a copyholder of inheritance may have the right to break the surface and dig gravel, sand, and clay, without stint, from out of his own tenement for the pur- poses of sale off the manor (c). So also may a customary tenant have the right by custom to work mines for profit on his (q) 2 Roll. Ab. 816. (!/) Coppinger v. Gubbins, 3 J. & L. (r) Co. Litt. 53 b, 54 b ; Saunders' 410 ; Stevenson v. Moore, 7 Ir. Ch. case, 5 Co. Rep. 12 a. See LiTingston 462. See, as to grants of turbary, Hill i). Reynolds, 20 Wend. (Amer.) 115,2 v. Barry, Hay. & J. 688; Duggan v Hill (Amer.), 157. Carey, 8 Ir. C. L. 210; Moore v. Orr' (s) 2 Roll. Ab. 816. 8 Ir. C. L. 347 ; Hargrove v. Congleton, (() Purcell V. Nash, 1 Jon. 625; 12 Ir. C. L. 362, 368. Mansfield v. Crawford, 9 Ir. Eq. 271. (z) See Wilson v. Willes, 7 East, («) De Sails v. Crossan, 1 Ba. & Be. 121 ; Wilkinson v. Haygarth, 12 O b' 188 ; Lord Courtown v. Ward, 1 Sch. 837. & Lef. 8; Howley v. Jebb, 8 Ir. C. L. (a) 19 & 20 Vict. c. 120, ss. 32, 41 ; 435. Rogers on Mines, 280-286. (x) Chatterton v. White, 1 Ir. Eq. (6) Scriv. on Cop. 427. See Bowser 200 ; White v. Walsh, 1 Jon. 626, n. ; v. Maclean, 2 D. F. & J. 415. Lord Waterpark v. Austin, ib. 627, n. ; (c) Marquis of Salisbury v. Gladstone, ~ Coppinger v. Gubbins, 3 J. & L. 410 ; 9 H. L. 692; Hanmer v. Chance, 34 L. Stevenson v. Moore, 7 Ir. Ch. 462; J. Ch. 413. Howley v. Jebb, 8 Ir. C. L. 435. [259] * 249 LEGAL WASTE. [CH. XVI. own copyhold tenement (c?). But in the absence of custom the tenant cannot, without the leave of the lord, open or work new mines or work quarries upon his own tenement, nor on the other hand can the lord, in the absence of a custom, open and work mines upon the tenement of a copyholder (e). 34. By custom a copyholder may have a right to dig and take clay, limestone, marl, or gravel, for repairs or the * 249 necessary * purposes of his occupation (/) ; and it is possible that such a privilege exists without reference to custom (^). 35. Any permanent alteration of the character of land, such as the conversion of meadow, into arable land by ploughing it up (K), or arable land into wood, or a meadow into an orchard, is waste, even although the value of the land be increased, because it not only changes the course of husbandry, but affects the proof of title (i). But a mere temporary alteration in the ordinary and reasonable course of husbandry is not waste (¥). The enclosure and cultivation of waste land is waste by reason of the injury to the evidence of title (J). So also the conver- sion of land into a burying-ground (m), and the breaking up of a bowling-green (ji), are acts of waste. 36. By the general law a tenant for life or for years is under no obligation to cultivate land. It is not waste to suffer arable (d) Bishop of Winchester v. Knight, Hunt v. Browne, Sau. & Sc. 179 ; Erpe 1 P. Wms. 406 ; Parrott v. Palmer, 3 v. Smith, Coop. C. C. 110; Duke of St. M. & K. 632 ; Duke of Portland v. HiU, Albans v. Skipwith, 8 Beav. 357. See, ' 2 L. E. Eq. 765. as to what is ancient meadow, Hunt v. (e) Bishop of Winchester v. Knight, Browne, Sau. & Sc. 179 ; Martin v. 1 P. Wms. 406 ; Grey v. Duke of Coggan, 1 Hog. 120 ; Morris v. Morris, Northumberland, 13 Ves. 236, 17 Ves. ib. 238 ; Davies v. Davies, 2 Ir. Bq. 281 ; Bourne t>. Taylor, 10 East, 189 ; 414 ; Murphy v. Daly, 13 Ir. C. L. 239. Cuddont). Morley, 7Ha. 204; Duke of (i) Co. Litt. 53 b; Lord Darcy ». Portland v. Hill, 2 L. R. Eq. 765. Askwith, Hob. 234 ; Simmons v. Nof- See Bowser v. Maclean, 2 D. P. & J. ton, 7 Bing. • 647 ; Duke of St. Albans 415. V. Skipwith, 8 Beav. 357. See Prench (/) Bainbridge on Mines, 22; Gilb. v. Macale, 2 Dr. & War. 269. Ten. 327. (h) 2 RoU. Ab. 814 ; Viner, Ab. tit. (g) Heydon and Smith's case, 13 Co. Waste; Malevrer v. Spinke, Dyer, 37 Eep. 68. a ; Simmons v. Norton, 7 Bing. 647 ; (A) Co. Litt. 53 b ; Lord Darcy v. Cruise, Dig. tit. iii. c. 2, s. 19 ; Gibbon Askwith, Hob. 234 ; Worsley v. Stewart, on Dilap. 198. 4Bro P. C. 377; Simmons v. Norton, (I)) Queen's College v. Hallett, U 7 Bing. 647 ; Goring v. Goring, 3 Sw. East, 489. 661; Pratt w. Brett, 2 Madd. 62; Mar- (m) Hunt v. Browne, Sau. & Sc. tin V. Coggan, 1 Hog. 120 ; Morris v. 189 ; Cregan v. Cullen, 16 Ir. Ch. 339. Morris, ib. 238 ; .Toley v. Stocley, *. (n) City of London v. Pugh, 4 Bro. 248 ; Brophy v. Quarry, Hayes, 449 ; P. C. 395. r26on CH. XVI.] LEGAL WASTE. * 250 ground to lie fresh and not manured, so that it grows full of thorns: it is merely bad husbandry (o). To oblige a man to cultivate according to good husbandry, there must be either an express contract or a custom of the country (jp). A custom of the country need not have existed from time imme- morial, as * must a custom properly so called. It is * 250 sufficient if there be a general usage applicable to farms in the part of the country in which the land is situated (^q). The mere relation of landlord and tenant creates an implied obligation on the part of the tenant to manage and use a farm in a husbandlike manner according to the custom of the country where the premises are situated (r), unless indeed the lease or agreement contains some'express covenant or promise inconsistent with such custom and sufficient to exclude it (s). The removal of hay, straw, dung, crops, &c., from a farm is waste, where it is contrary to the custom of the country, and will be restrained by injunction (^). So also the sowing of land with pernicious crops, such as mustard, is waste, and will be restrained (u). 37. The obligation to cultivate lands according to the custom of the country does not apply to a garden or meadow let with a gentleman's residence (x) 38. Waste in houses or buildings consists either in pulling them down or in suffering them to go to decay (t^). The law of waste extends not only to dwelling-houses, but to every description of buildings, such as outhouses and barns (z). An alteration of buildings which changes their nature and character is waste, even although the value of the premises be (o) Bro. Ab. "Waste, pi. 5, 2 Roll. Greenwood v. Bairston, fL. J. Ch. N. Ab. 814 ; Hutton v. Warren, 1 M. & W. S. 245 ; Kimpton v. Eve, 2 V. & B. 349 • 472. . Pratt v. Brett, 2 Madd. 62 ; Walton v. (p) Hutton V. Warren, 1 M. & W. Johnson, 15 Sim. 352. See Johnson 472, per Lord Wensleydale. v. Goldswaine, 8 Anst. 749 ; Lathropp v. (q) Leigh v. Hewitt, 4 East, 154; Marsh, 5 Ves. 259. Dalby v. Hirst, 1 B. & B. 224. (u) Pratt v. Brett, 2 Madd. 62. (r) Powley V. Walker,.5 T. E. 373 ; (x) Johnstone v. Symons, 9 L. T. Halifax v. Chambers, 4 M. & W. 662 ; 535 ; Gibbon on Dilap. 202. See as to Beale v. Saunders, 3 Bing. N. C. 850. cultiTation of glebe land, Bird v. Relph, (s) Hutton 0. Warren, 1 M. & W. 4 B. & Ad. 826. 466 ; Clarlt v. Royston, 13 M. & W. (y) Co. Litt. 53 a. See Kimpton v. 752 ; Wilkins v. Wood, 17 L. J. Q. Eve, 2 V. & B. 353 : Pratt v. Brett, 2 B. 819. Madd. 62. (() Pulteney v. Shelton, 5 Ves. 147, (z) Doe v. Earl of Burlington, 5 B. 260, n. ; v. Onslow, 16 Ves. 173; & Ad. 507. [261] * 251 LEGAL WASTE. [CH. XVI. thereby increased. Thus, the converting two chambers into one, or e eonverso, or the converting a liand-mill into a horse-mill, or a corn-mill into a fulling-mill, or a malt-mill to a corn-mill, or a logwood-mill to a cotton-mill, have been held to be * 251 waste (a). So also the conversion *of a private house into a shop is waste (5). So also may the building of a new house, where there was one before, be waste, if it impair the evidence of title (c). In Smith v. Carter (c?) the court re- strained a man from pulling down a house and building another which the landlord objected to. " It is not sufficient," said Lord Romilly, M. R. (e), " that the house proposed to be built is a better one. The landlord has a right to exercise his own judgment and caprice, whether there shall be a change : if he objects, the court will not allow a tenant to pull down one house and build another in its place " (/). 39. A covenant to repair being positive as well as negative in its obligations, the tenant is thereby bound as well not to do an act amounting to voluntary waste as to repair dilapida- tions. An alteration of the demised premises may be a breach of the covenant to repair () Cole u. Peyson, 1 Ch. Rep. 57; Tracy v. Tracy, 1 Vem. 23; Perrot litfield %,. Bewit, 2 P. Wms. 240; b. Perrot, 3 Atk. 94; Robinson v. Lit- ight V. Atkyns, 17 Ves. 255, 19 ton, 3 Atk. 210 ; Earrant v. Lovell, ih. !. 299; 1 V. & B. 313; Turner v. 723; Davies w. Leo, 6 Ves. 784. See ight, 2 D. P. & J. 234; Blake v. Kingston v. Kingston, 2 Moll. 412; ers, 1 D. J. & S. 353. Blagrave v. Blagrave, 1 De G. & S. 252, o) Roswell's case, 1 Roll. Ab. 377 ; mpca, p. 235. [267] * 257 INJUNCTIONS AGAINST WASTE. [CH. XVI. tingent remainders may bring a bill to stay waste against a tenant for life (5'). In Garth v. Cotton (r) Lord Hardwicke held that trustees to preserve contingent remainders might have an injunction against a tenant for life and a remote re- mainder-man colluding to commit waste while the remainders were in expectancy (s) . It would appear that trustees to preserve contingent remainders may not only bring a bill to stay waste, but are bound to do so for the benefit of the con- tingent remainders (i). If an estate of trustees to preserve contingent remainders is omitted in copyholds, the estate * 257 of freehold in the lord is sufficient to prevent * waste or the tortious destruction of the contingent estates until the remainder-man comes into esseQu). 2. If the legal estate is in trustees upon trust for a tenant for life, with remainders over, and the tenant for life commits waste, the trustees have a right to file a bill to stay the waste (x), and it is their duty to do so, if parties unborn are interested {y). A remainder-man, however, need not look to the trustees for protection, but has a right to apply for an injunction to restrain the tenant for life from committing waste (z). 3. The remainder-man of an undivided share of the inheri- tance may have an injunction and an account (a). When an estate for life is given with certain directions which impose an obligation on the tenant for life, not to be guilty of waste, either voluntary or permissive, the court will interpose to pre- vent either him or his alienee from doing any act which would be a breach of the condition or obligation (6). 4. A tenant in dower (c), and tenant by curtesy (d'), being in the same position towards the owner of the inheritance as a tenant (q) Perrot v. Perrot, 3 Atk. 94 ; Powys v. Blagrave, Kay, 505, 4 D. M. Garth v. Cotton, ib. 751, 1 Dick. 183, 1 & G. 448. Ves. 524, 546. (y) Ib. (r) lb. (z) Viner v. Vaughan, 2 Beav. 469. s See "Williams v. Duke of Bolton, (a) Co. Litt. 53 b ; Whitfield v. 1 Cox, 72, 3 P. Wms. 268, n. Bewit, 2 P. W. 241. (() Stansfleld v. Habergham, 10 Ves. (5) Kingham v. Lee, 15 Sim. 396. 278, per Lord Eldon. See Blagrave v. Blagrave, 1 De G. & (m) Gilb. Ten. 268; Habergham «. S. 253. Vincent, 2 Ves. Jr. 204 ; Stansfleld v. (c) Bowie's case, 11 Co. Bep. 82 a, Habergham, 10 Ves. 281 ; see also Gale Co. Litt. 53 b ; Dickin v. Hamer, 1 Dr. V. Gale, 2 Cox. 136. & S. 295. {x) Denton t). Denton, 7 Beav. 388; (d) lb.; Eoberts v. Roberts, Hard. Pugh V. Vaughan, 12 Beav. 517; 96, [268] , 2VI.] iNJUNCTIONS AGAINST WASTE. * 258 life, may not commit waste (e). Nor can a jointress com- t waste upon the jointure estate (/). 3. As between coparceners, joint tenants, or tenants in nmon, the court will not interpose to restrain waste (^), less the wrong-doer is insolvent, or incapable of paying to ! other the excess of the value beyond his own share (A), or accupying tenant to the other (*"), or unless the waste lounts to* destructive waste, or spoliation (y), or a * 258 [■tition suit has been instituted (^). 6. Tenant in tail in possession, with successive estates tail remainder, is dispunishable of both legal and equitable iste, because he may at any time bar the entail, and acquire 3 absolute fee-simple (Z). It' has been held that an infant lant in tail in possession has the same right as one of full e against the remainder-man, and that his guardians might oamit waste, although by converting the nature of the property m realty into personalty the next of kin of the infant would, the event of his death, be benefited at the expense of the nainder-man (m). In Saville's case (n), Lord King would b restrain by injunction the guardians of an infant tenant tail in possession from cutting timber, whilst the infant was very bad health. After the death of the infant, which took Lce shortly afterwards, a bill by a remainder-man for an jount against his assets was dismissed (o). But it is doubt- whether Saville's case would be followed at the present Y (p^- An injunction maybe had against the guardian of infant tenant in tail, if the application be made on behalf the infant (g'). The right to be dispunishable of waste ;ends not only to the grantee of a tenant in tail, but also to :) But see Carew «. Carew, 1 Eq. Ca. v. Briggs, 14 W. E. 25. See Doe d. 221, 400, 14 Tin. Ab. 557. Wawn v. Horn, 5 M. & W. 564. f) Aston V. Aston, 1 Ves. 267. . {h) Hawley v. Clowes, 2 Johns. Ch. i) Goodwin v. Spray, 2 Dick. 667; (Amer.) 121. e V. Thomas, 7 Ves. 589 ; Twort v. (I) 3 Madd. 532, 2 D. F. & J. 246. art, 16 Ves. 129. (m) Lyddall v. Clavering, cited Amb. i) Smallman v. Onions, 3Bro. C. C. 371. ' (m) Cited Forr. 16, Mose. 224. ) Twort V. Twort, 16 Ves. 128. (o) See TuUitt v. TulUtt, Amb. 370 ; ;■) Hole V. Thomas, 7 Ves. 589 ; Lyddall v. Clavering, ib. 371, n. ■ham and Sunderland Eailway Co. {p) See Craig on Trustees, 79-84. ^'^awn, 3 Beav. 119; Arthur v. (q) Hussey v. Hussey, 5 Madd. 44. ibe, 2 Dr. & Sm. 428 ; Ackroyd See Eoberts v. Eoberts, Hard. 96. [269] * 259 INJUNCTIONS AGAINST WASTE. [CH. XVI. the grantee of such grantee (r). A tenant in tail must exer- cise his powers in respect to waste during the continuance of his estate, for at the instant of his death they cease («)^ 7. A tenant in tail after possibility of issue extinct, who has been once in possession, is in respect of the estate * 259 of inheritance,* which has been oncein him, as dispun- ishable of waste as a tenant for life, who is made so by express limitation (t) ; but he may not commit equitable waste (u). It may happen that a person is at the same time tenant for life and also tenant in tail after possibility of issue extinct of remainder expectant on his life estate; but there does not appear to be any distinction as, far as waste is con- cerned between a person taking under such a limitation and a tenant in tail after possibility of issue extinct who has been once in possession (v). 8. The privileges of tenant in tail after possibility of issue extinct are in respect of the privity of his estate and of the inheritance that was once in him : if, therefore, he convey his estate to another, such person will be considered as a mere tenant for life {x). 9. A tenant in tail with the reversion in the Crown, and tenant in tail under an act of Parliament which precludes the barring of the entail, have all the legal rights and incidents which belong to a tenancy in tail, and are dispunishable of waste whether legal or equitable («/). But where the rights and incidents of the tenancy in tail are specially qualified by the provisions of the statute, the court may feel bound to interfere to prevent equitable waste (z). 10. A tenant in fee-simple, subject to an executory devise over, is within the principle of equitable waste, but he is dis- (r) 8 Bac. Ab. 392. (v) See "Williams v. Williams, 15 (s) Roberts v. Roberts, Hard. 96 ; Ves. 423, 12 East, 209. Cruise, Dig. tit. 2, oh. 1, s. 32. (x) Co. Litt. 28 a; Rice's case, 3 (t) Lewis Bowie's case, 11 Co. Rep. Leon. 241. 79 b; "Williams v. "Williams, 15 Ves. {?/) Att.-Gen.w. Duke of Marlborough, 430 ; Turner v. "Wright, 2 D. F. & J. 3 Madd. 540 ; Davis v. Duke of Marlr 247. borough, 2 Sw. 108 ; Turner v. "Wright, (w) Abraham v. Bubb, Freem. eh. 52, 2 D. F. & J. 246. 2 Sw. 172 n.; Turner v. "Wright, 2D. (sjAtt.-Gen.w. Duke of Marlborough, F. & J. 247. 8 Madd. 548 ; Turner v. "Wright, 2 D, F. & J. 246. [270] XVI.] INJUNCTIONS AGAINST WASTE. * 260 lishable of legal waste (a), unless the testator has imposed him a condition not to commit waste (6). 1. A tenant in fee-simple, holding under a devise to I and * his heirs for ever in the fullest confidence * 260 t he will devise the property among the members of Brtain class, has, during his life, all the rights and enjoy- [its of a tenant in fee, and is dispunishable of waste (c). he case," said Wood, V. C, in Turner v. Wright (d), is to distinguished " from a gift of a fee with an executory devise r. When such a gift takes effect, it does so altogether .ors the tenant in fee, as if there had been no estate in him. len, on the other hand, a person is interested with a power distribution among the members of a class, he confers on m the same estate which he held himself. It would be un- sonable to assume that being endowed with a power of dis- lition of this kind, he should not have the same power ■ing his life which he could confer on his appointees after death." .2. An heir taking by resulting trust until the happening of contingency, is within the principle of equitable waste (e). .3. The well-known tenure so common in Ireland by lease lives renewable for ever was considered by Lord Redesdale much in the nature of a perpetuity, that he refused an )lication for an injunction to restrain the cutting of tim- (/). But Lord St. Leonards, after a review of all the horities, disapproved of this decision, and held that a lessee lives renewable for ever is not at liberty to commit destruc- ! waste. But he may, it would appear, commit meliorating ite (^). He may not, however, commit equitable waste, ugh he has been made expressly unimpeachable of waste Qi). 4. A bill for an injunction against waste will lie at the t of a copyholder against his lessee (/), of a copyholder in ) Turner v. "Wright, John. 740, 2 (d) John. 747. '. & J. 234, reviewing Robinson v. (c) Stansfield w. Habergham, 10 Ves. m, 3 Atk. 209 ; Stansfield v. Haberg- 273. , 10 Ves. 273; Wright «. Atkyns, (/) Calvert v. Gason, 2 Sch. & L. Tea. 255, 19 Ves. 299, 1 V. & B. 561. T. & E. 143 ; Lord St. Leonards ((;) Coppinger v. Gubbins, 3 J. & L. teal Property, 376-387. 397. ) Blake v. Peters, 1 D. J. & S. 345. (A) Pentland v. Somerville, 2 Ir. Ch. ) Wright V. Atkyns ; Lord St. Leo- 289. s on Real Property, 383-387. (i) Dalton v. GiU, Gary, 89, 90. [271] * 261 INJUNCTIONS AGAINST WASTE. [CH. XVI. remainder against a copyholder for life (Jc), or of a copyholder against the lord of the manor (Q. So, also, a bill for an * 261 injunction against * waste will lie at the suit of a lord of a manor against lais copyhold tenants (ot), or their under-tenants (w) ; and an interlocutory injunction has been granted, although the answer denied that the lands were copy- hold (o). ^ 15. A mortgagee in possession with a sufficient security may not commit waste (^p ), and he is bound to do necessary re- pairs (5'). If, however, the security is insufficient, he is entitled, so long as he is acting hand fide, to make the most of the property for the purpose of discharging what is due to him. He may cut timber, and open mines or quarries, but he does so at his own risk and peril. If he incurs a loss, he cannot charge it against the mortgagor, and if he 'obtains a profit, the whole of that profit must go in discharge of the mortgage debt (r). If the security is sufficient, and he has no authority' from the mortgagor (s), he will under similar circumstances be charged with his receipts and disallowed his expenses (f). If the mortgage be of an open mine, the mortgagee is entitled to work it as a prudent owner would do, and he is not bound to advance money for speculative- improvements (u)} 16. When a mortgagee in possession pending a redemption, suit committed waste, he was ordered on motion to deliver up (k) Cornish v. New, Finch, 220; Ch. 30; MiUett w. Darey, 31 Beav. Caldwell v. Baylis, 2 Mer. 408. 470 ; Lord St. Leonards' Handy-Book^ (I) Grev V. Duke of Northunaberland, 117. 17 Ves. 281 ; Bowser v. Maclean, 2 D. (s) Norton v. Cooper, 25 L. J. Ch.. F. & J. 415. 121. (m) Richards D. Noble, 8 Mer. 673; (*).Thorneycroftr. Crockett, 16 Sim. i Parrott v. Palmer, 8 M. & K. 632. See 446 ; Hood v. Easton, 2 Giff.-692. See Andrews v. Halse, 4 K. & J. 892. Hughes v. Williams, 12 Ves. 493. • in\ Cuddon v. Morley, 7 Ha. 202. (u) Rowe v. Wood, 2 J. & W. 555. (o) Commissioners of Greenwich v. See Pisher on Mortgages, 499. Blackett, 12 Jur. 151. . l In this country equity will restrain (p) Parrant v. LoTcll, 3 Atk. 728 ; the cutting and removing wood to the Hardy v. Beeves, 4 Ves. 479 ; Sandon injury of the mortgage security. Moul- V. Hooper, 6 Beav. 246, 14 L. J. Ch. ton v. Stowell, 16 N. H. 221 ; Kobinson 120 ; Anon., 1 L. J. Ch. 119 ; Millett v. Russell, 24 Cal. 467 ; Bunker v. V. Davey, 31 Beav. 470. Locke, 15 Wis. 635 ; Natoma, &c., Co. (?) Godfrey v- Watson, 3 Atk. 518 ; v. Clarkin, 14 Cal. 544 ; or where the Russell V. Smithies, 1 Anstr. 96 ; Lord wood and timber are necessary to the St. Leonards' Handy-Book, 117; ISeton enjoyment of the estate. Davis w.^ on Decrees, 398 ; Sandon v. Hooper, 6 Reed, 14 Md. 152. So in Illinois an in- Beav. 246, 14 L. J. Ch. 120. See Pisher junction will be issued to prevent waste on Mortgages, 495. by mortgagor. Nelson w. Pinegar, 30 (r) Witherington D. Banks, Sel. Ca. 111.473. [272] CH. XVI.] INJUNCTIONS AGAINST WASTE. * 262 the premises to the mortgagor (x). Where a first mortgagee was in possession, he was restrained from paying over the surplus rents to tlie mortgagor instead of to the second mort- gagee (y). 17. * The mortgagee of a burial-ground has notice * 262 of the purposes to which it is devoted, and is bound by rights of burial, temporary or in perpetuity, granted by his mortgagor while left in possession (s). 18. The position of a mortgagor in possession of the mort- gaged estate bears no analogy to that of a tenant for life. A mortgagor in possession is in equity the owner of the estate, and may exercise all acts of ownership and may commit waste, provided he does not diminish the security or render it insuffi- cient (a) ; but if the security is insufficient he may not com- mit waste (6). In order that an injunction may go against a mortgagor in possession, it must appear on the affidavits that the security is insufficient, or will be rendered insufficient or scanty by the acts of waste complained of (c) . The meaning of the term " insufficient " is thus explained by Wigram, V. C, in King v. Smith (d) : " I think the question which must be tried is, whether the property the mortgagee takes as a security is sufficient in this sense — that the security is worth so much more than the money advanced — that the act of cut- ting timber is not to be considered as substantially impairing the value, which was the basis of the contract between the parties at the time it was entered into." In a case where the mort- gagor in possession was bankrupt, but no assignees had as yet been chosen, he was restrained from committing waste (e), but in a case where he was merely in prison for debt the appli- cation for an injunction was refused (/).^ (x) Hanson v. Derby, 2 Vern. 392. (c) Cox v. Goodfellow, 8 Ves. 105, (y) Dalmer v, Dashwood, 2 Cox, 378. n. ; Ilippesley v. Spencer, 5 Madd. 422; (z) Morelandi).Eichardson,24Beav.33. Humphreys v. Harrison, 1 J. & W. 581 ; (a) Kekewich v. Marker, 3 Mao. & Leake v. Beckett, 1 Y. & J. 339 : King G. 329. ■ V. Smith, 2 Ha. 244. (b) Kobinson v. Litton, 3 Atk. 210 ; (d) 2 Ha. 244. Tarrant v. Lovell, ib. 723; Ueborne v. le) Hampton v. Hodges, 8 Ves. 104. TJsborne, 1 Dick. 76 ; Hopkins v. Hop- (/) Humphreys v. Harrison, 1 J. & kins, cit. *. ; Uredale v. Uvedale, cit. W. 582. ib. ; Cox V. Goodfellow, 8 Ves. 105, n. ; i Mortgagor of personal as weU as Humphreys v. Harrison, IJ. & W. 581 ; real property restrained from commit- Hippesley v. Spencer, 5 Madd. 422; ting waste. Parso;is v. Hughes, 12 Aokroyd v. Mitchell, 3 L. T. N. S. 236. Md. 1. The severance of the engine and 18 [273] *263 INJUNCTIONS AGAINST WASTE. [CH. XVIi 19. A mortgagor who has sold the equity of redemption without taking any security as an indemnity against his * 263 bond cannot * have an injunction against the purchaser to stay waste on the ground that the land may not be ' sufficient to satisfy the mortgage Qg). 20. Tlie same principles which apply in respect of waste by a mortgagor in possession are also applicable as between the heir or executor of a debtor in possession and a judgment creditor (A), and as between a purchaser who has obtained possession before the payment of the purchase-moneys and the vendor (i). So, also, where moneys due under a settlement are unpaid, the court has jurisdiction to prevent any waste which may tend to injure the security (Ji). 21. The obligations imposed by the common law upon a tenant for life or years, or existing by the custom of the country, apply as between landlord and tenant, except in so far as they may be excluded by the terms of the agreement which subsists between the parties (T). Acts contrary to the obligation of a tenant to deal with the premises according to the custom of the country or ex;press agreement are not, prop- erly speaking, acts of waste, unless they are also breaches of the common law, but being of a like mischief with acts of waste, they are restrained upon somewhat similar principles Qni). There is, however, a distinction in the general principles upon which the court proceeds in restraining acts of waste done in violation of an express agreement from those on which it pro- ceeds in restraining acts of pure waste at common law. In restraining pure waste, irrespectively of agreement, the court proceeds upon the ground of irreparable damage, and will not machinery of a mill upon incumbered (i) Crockford v. Alexander, 15 Ves. real estate is a fraud upon the prior 138 ; Casamajor v. Strode, 1 Sim. & St. judgment creditors of the debtor, such 381 ; Petley v. Eastern Counties Rail- as a court of equity has jurisdiction way Co., 8 Sim. 483 j Webster ii. to restrain by injunction ; but, qucere, South Eastern Railway Co., 1 Sim. whether it will, at the suit of a mere N. S. 272. judgment creditor, restrain such acts of (4) Turldngtou v. Kearnan, LI. & 6. a judgment debtor, in possession as 45. owner, as would constitute waste at {I) Webb v. Plummer, 2 B. & Aid. common law. Witmer's Appeal, 45 746 ; Philipps v. Smith, 14 M. & W. Penn. St. 455. 589. See supra, p. 249, as to the cus- (g) Brumley v. Panning, 1 Johns. Ch. torn of the country. (Amer.) 500. (m) Songhurst v. Dixey, Toth. 255; (A) Leake v. Beckett, 1 Y. & J. 339. Kimpton v. Eve, 2 V. & B. 352. [274] CH. SVI.] INJUNCTIONS AGAINST WASTE. * 264 interfere if the damage be small (n). In restraining acts of waste in breach of covenants the court proceeds upon the principle that where a positive stipulation has * been * 264 entered into between two parties, either party has a right to insist upon its literal performance by the other irre- spectively of the question of damage (o). 22. A termor who holds land at a ground rent is as much entitled to an injunction to stay waste by his underlessee as if he had an estate of inheritance (^ ). So, also, may a receiver have an injunction to restrain the tenants or undertenants from committing waste (g'). 23. As between landlord and tenant, no length of abuse will give the tenant a right to commit waste. The allowance of the. abuse is only by the permission of the landlord, and can never be turned against him by the tenant. The rights of the tenant are only to be ascertained by the lease (r). 24. At common law a dean and chapter, being a corporation aggregate, could alienate their estates as fully and effectually as a person seised in fee. But bishops, deans, parsons,' and other corporations sole could not alienate their estates so as to bind their successors without the consent of other parties. Grants made by bishops required confirmation by the dean and chapter, those made by deans required confirmation by ■ the bishop and chapter, and those made by parsons and vicars required confirmation by the patron and ordinary (s). By the restraining statutes (<), however, all ecclesiastical persons are disabled from alienating the possessions of the church for a longer period than twenty-one years or three lives from the making thereof (m). It was not enacted expressly by these statutes that the lessees should be made impeachable of waste (x), but it has been long decided that ecclesiastical per- sons are restrained by the equity of the statute 13 Eliz. c. 10, from making leases dispunishable of waste (j/). (n) Lambert v. Lambert, 2 Jr. Eq. (q) Mason v. Mason, Fl. & K. 429. 210 ; Doran v. Carroll, 11 Ir. Ch. 379 ; (r] Lord Comrtown v. Ward, 1 Sch Att.-Gen. v. Sheffield Gas Co., 3 D. M. & L. 8. & G. 321 ; supra, p. 236. (s) Cripps on the Clergy, 240. (o) Kemp V. Sober, 1 Sim. N. S. 520, (t) lEUz. c. 19, s. 5, 13 EUz. c. 10, s. 3. on appeal, 19 L. T. 308; Tipping u. (m) See also 14 Eliz. c. 11, 18 Eliz. c. Eclcersley, 2 K. & J. 264. See, further, 11. as to injunctions against breaches of {x) Co. Litt. 44 b. coTenant, jn/ro. (y) Dean and Chapter of Worcester's {p) Farraut v. Lovell, 8 Atk. 72. case, 6 Co. Kep. 37 a ; Herring v. [2T5] * 266 INJUNCTIONS AGAINST WASTE. [OH. XVI. * 265 25. * A parson being at common law able to alienate his glebe land with the consent of the proper parties, might also with the consent of the same parties commit waste ; but without such consent a parson has not at common law any more extensive privileges as to waste in general than an ordi- nary tenant for life (s). It seems, however, that in some respects a parson is more favorably situated than an ordinary tenant for life or years, and that some acts which are waste in ordinary cases are not necessarily waste in his case (a). 26. Timber growing on the estates of ecclesiastical persons is a fund for the benefit of the church, and may not be felled except for the repairs of the ecclesiastical buildings, the par- sonage-house, the farms, and the barns and outhouses belong- ing to the parsonage (5). Timber growing in the church-yard may not be felled except for the necessary repairs of the chancel or the body of the church (c). 27. There has been some controversy whether an ecclesiasti- cal person is bound specifically to apply the timber he has cut for the purposes of repairs towards the actual repairs for which it was wanted. From a passage in Ambler (<^) it might appear that Lord Hardwicke was of opinion that a rector or vicar might cut and sell timber to any extent in order to provide a fund for general repairs ; but the report of the case is too im- perfect and too doubtful to give the weight of Lord Hard- wicke's authority to such a proposition (e). The rule on the subject would appear to be that an ecclesiastical person may cut and sell timber for the purpose of providing other timber more suitable for the intended repairs, so long as no * 266 more is cut than is necessary for the * purpose ; but that he may not cut timber to defray the general ex- penses of his repairs (/). Dean of St. Paul's, 3 Sw. 492; Wither Jefferson v. Bishop of Durham, 1 B. & V. Dean and Chapter of Winchester, 3 P. 129 ; Herring v. Dean and Chapter of Mer. 421. St. Paul's, 3 Sw. 492 ; Wither v. Dean {z) Kmght V. Moseley, Amb. 176 ; and Chapter of Winchester, 3 Mer. 421. Strachey v. Francis, 2 Atk. 216 ; Duke (c) Edw. 1, c. 35, stat. 2 : Gibbon on of Marlborough v. St. John, 5 De G. & Dilap. 54-56. S. 178. See Hoskins v. Featherstone, (d) 176. 2 Bro. C. C. 552. L) Wither v. Dean and Chapter of (a) Duke of ^t. Alban's v. Skipwith, Winchester, 3 Mer. 421, 428, per Lord 8Beav. 355; Bird k. Ralph, 4 B. & A. Eldon; Duke of Marlborough v. St. 825, 2 A. & B. 773. John, 5 De G. & S. 180, per V. C. Parker. (6) Strachey v. Francis, 2 Atk. 216 ; (/) Wither v. Dean and Chapter of [276] CH. XVI.J INJUNCTIONS AGAINST WASTE. * 267 28. An ecclesiastical person may continue the working of mines or gravel-pits already open, and which have been law- fully opened, but he may not open new ones (^). Ecclesiasti- cal persons, whether aggregate or sole, may grant leases for a long term of years for mining or other purposes with the sanction of the ecclesiastical commissioners Qi). It is doubt- ful whether a parson could, without such sanction, make a lease of mines upon his glebe, even though with the consent of the patron and ordinary (i). 29. In the case of a parson the application for an injunction to stay waste should be made by the patron (Jc), or, if the patron is a consenting party to the waste, by the ordinary (J). The right to an injunction to restrain a bishop from wasting the property of the see resides in the Attorney-General, suing on behalf of the^Crown, the patron of bishoprics (jn), and possibly to some extent in the metropolitan (n). So a dean and chapter may be restrained at the suit of the Crown, but not at the suit of a lessee holding under them, except in so far as he may have derived any right or interest under the agree- ment (o). 30. The court of chancery has no jurisdiction to interfere at the suit of a parishioner to restrain the incumbent from mak- ing' alterations in the church, church-yard, or other land in his possession in right of his church (p). But the court will act *as ancillary to the ecclesiastical court, and ^-* 267 grant an injunction where any act in the nature of I ■Winchester, 3 Mer. 421; Duke of (Z) Holden «. Weeks, IJ. & H. 285. Marlborough v. St. John, 5 De G. & (m) Knight v. Moseley, Amb. 176; S. 181. See Herring v. Dean and Jefferson v. Bishop of Durham, 1 B. & Chapter of St. Paul's, 2 Wills. Ch. 10, P. 116, 131 ; Wither v. Dean and 3 Sw. 492. Chapter of Winchester, 3 Mer. 427 ; (g) Knight u. Moseley, Amb. 176; Earli"itzwilUam!;.Moore, 3Ir. Eq. 615. Huntley v. Russell, 13 Q. & B. 591. (n) Wither v. Dean and Chapter of Ah) 5 & 6 Vict. c. 108, 21 & 22 Viet. Winchester, 3 Mer. 427. e. 57. (o) Wither v. Dean and Chapter of (i) Holden v. Weeks, 1 J. & H. 283. Winchester, 3 Mer. 421 ; Herring v. See Doe v. Collinge, 7 C. B. 939 ; Bart- Dean and Chapter of St. Paul's, 3 Sw. lett V. Philipps, 4 D. & J. 414. 492. (k) 2 Boll. Ab. 813; Knight u. Mose- (p) Earl Pitzwilliam u. Moore, 3 Ir., ley, Amb. 176 ; Bradley v. Strachey, Eq. 625 ; Cardinal v. Molyneux, 7 Jur. Barnard, Ch. 399 ; Strachey w. Francis, N. S. 854. See Woodman t>. Robinson, 2.Atk. 216; Hoskins v. Featherstone, 2 Sim. N. S. 204; and see, as to right 2 Bro. C. C. 551 ; Acland v. Atwell, 8 of burial, Moreland v. Richardson, 24 Sw. 499, n. Beav. 38. [277] * 267 EQUITABLE WASTE. [CH. 2VI. waste is either threatened or committed (g-). A suit accord- ingly by the church-wardens of a parish to restrain the vicar of the parish or any other person from pulling down the church- yard wall is maintainable (r). If the church-warden com- mences the suit whilst he is church-warden, he may continue it after his church-wardenship has ceased (s). 31. In Bartlett v. Philipps (i), the court was of opinion that the produce of waste of glebe land should be laid out in the permanent improvement of the living. In a subsequent case, however. Wood, V. C, held that a patron could not claim as of right an account and investment of the produce of past waste for the benefit of the living (m). But there is ground to believe that the dictum of Lord Hardwicke, in Knight v. Moseley («), on which his decision was based, only meant that the patron could not claim such an account for his own bene- fit (a;). At all events, on a proper application, the court may order timber growing on the glebe land to be cut, or mines under it to be worked, and the produce applied for the benefit of the living (?/). SECTION IV. — EQUITABLE WASTE. 1. Equitable waste by tenant for life without impeachment of waste. 2. Case of owner in fee settling his estate on himself for life with remainders over. 3. Equitable waste described. 4. Leading cases on subject. 5. When acts are of trivial nature court will not interpose. 6. Cutting of ornamental timber, equitable waste. 7-14. What are regarded as ornamental timber. 15. Measure of the obligation which attaches upon a tenant for life without impeach- ment of waste in reference to ornamental timber. 16. Cutting of J-oung trees and saplings, equitable waste. 17. Cutting of underwood when equitable waste. 18. Tenancy for life without impeachment of waste may be qualified. (q) Marriott v. Tarpley, 9 Sim. 279. (u) Amb. 176, (»■) n- (x) Tool on Waste, 80. (s) ■^- {y) Duke of Marlborough v. St. (t) 4D. &J.414. John, 5 De G. & S. 179; Holden v. (m) Holden v. Weeks, IJ. & H. 278. Weekes, IJ. & H. 278. [278] CH. XVI.] EQUITABLE WASTE. * 268 19. Trustees of a term " without impeachment of waste " bound to a more provident execution of their powers than a tenant for life. 20. Different rules as to different estates made unimpeachable of waste. 21. Limitation to tenant for life without impeachment of waste made subject to power in trustee for a term to enter and cut timber. 22. Tenant for life without impeachment of waste may not gain any undue advantage irom the exercise of a power of sale or exchange or purchase. 23. '\yaste by collusion. 1. The estate of a tenant for life or years is often declared by the instrument which creates it to be " without impeachment of waste." The effect of the clause at law is not only to allow a tenant for life or years to commit waste, but it is a special power permitting him to appropriate the produce of the waste to his own use (z). A court of equity, however, con- siders the * excessive use of the legal power incident to * 268 an estate unimpeachable of waste to be inequitable and unjust, and therefore controls it (a). " At law," said Turner, L. J., in Micklethwait v.. Micklethwait (6), " a tenant for life without impeachment of waste has, during the continuance of his estate, the absolute power and dominion over the timber, &c., upon the estate ; but this court controls him in the exer- cise of that power upon this ground, that it will not permit an unconscientious use to be made of a legal power. When, therefore, the court is called upon to interfere in cases of this description, it is bound, in the first place, to consider whether there are any special circumstances to affect the conscience of the tenant for life, for in the absence of special circumstances it cannot be unconscientious in him to avail himself of the power which the testator has vested in him. In considering what are the special circumstances which the court will regard as affecting the conscience of a tenanlt for life, the intentign of the settlor or devisor is principally to be regarded. If by his disposition or by his acts he has indicated an intention that there should be a continuous enjoyment in succession of that which he himself enjoyed, in the state in which he has hinj- self enjoyed it, it is against conscience that a tenant for life. («) Lewis Bowie's case, 11 Co. Eep. Clegg v. Rowland, 2 L. E. Eq. 160. See 81 b ; Aston v. Aston, 1 Yes. 264 ; 2 Sw. 145-147, n. Kekewioh v. Marker, 3 Mac. & G. 327 ; (a) Marker v. Marker, 9 Ha. 1, 17. (6) 1 D. & J. 504, 524. [279] * 269 EQUITABLE WASTE. [CH. XVI. claiming under his disposition, should by the exercise of a legal power defeat that intention " (c). 2. It appears that if an owner in fee settles his estate on himself for life with remainders over, he will not be allowed any larger privileges than he would have had if the settlor had been a stranger (c?). 3. Waste which a court of equity will restrain as being an unconscientious exercise of a legal power, is called equitable waste. An act may amount to equitable waste although there is a total absence of malice. " The presence or ab- * 269 sence," said Lord * Campbell, in Turner v. Wright (e), " of a bad motive will not enable us to draw any satis- factory line between what is to be considered malicious and what is to be considered equitable waste, and no line to regu- late the interposition of a court of equity by injunction can well be drawn other than the recognized and well-established line between legal and equitable waste" (/). If the restric- tion upon waste is connected with a trust, the court will act with greater readiness in restraining a legal power than in the absence of the trust (^). 4. The' case which is frequently referred to as being the leading decision on the subject of equitable waste is well known by the name of Lord Barnard's case. It is, however, far from being the earliest decision on the subject, as it appears to have been a well-known branch of equitable jurisdiction in the time of Lord Nottingham. In Abraham v. Bubb (A), we find that great judge treating it as a settled point that if tenant for life does waste maliciously, a court of equity will restrain him, though he had an express power to commit waste. He cited the Bishop of Winchester's case and Lady Evelyn's case as in- stances in his recollection in which the court had so interposed. In several other cases about the same period the court declared that it would restrain both tenant for life without impeachment (c) See Turner v. Wright, 2 D. F. & (e) 2 D. F. & J. 234, 245. J. 245, per Lord Campbell. (/) See Aston v. Aston, 1 Ves. (d) Vincent v. Spicer, 22 Beav. 380. 266. See Vane v. Lord Barnard, 2 Vern. 738, (17) Marker v. Marker, 9 Ha. 1, 18. Prec. Ch. 454 ; Barry v. Barry, 1 J. (A) 2 Eq. Ca. Ab. 757, Free. Ch. 58, & W. 662 ; Coffin v. Coffin, Jao. 70 ; 2 Show. 69. • V. Copley, 8 Madd. 525, n. [280] CH. XVI.] EQUITABLE WASTE. * 270 of waste, and tenant in tail after possibility of issue extinct, from committing " wilful," " destructive," " malicious," " ex- travagant," or " humorous " waste (*'). These determinations led to the remarkable case of Vane v. Lord Barnard (/). Lord Barnard, who was tenant for life without impeachment of waste of Raby Castle under the marriage settlement of his son, with remainder to his son, in consequence of some displeasure which he had conceived against him, got workmen together and stripped the castle of the lead, iron, glass, &c., and was pro- ceeding to pull it down, whereupon Lord Cowper granted an injunction and directed an inquiry as to the amount of damage actually done, and ordered it to be repaired at the ex- pense of Lord Barnard. * The ground upon which the * 270 doctrine was as yet founded was said to be the destruc- tion of the inheritance, and upon this principle Lord Hard- wicke said that if a tenant for life without impeachment of waste were to pull down farm-houses he would restrain him as much as if it were the case of a mansion-house (¥). 5. If the acts complained of are of a trivial nature the court will not interpose. Thus Lord Hardwicke observed that if the clause " without impeachment of waste " could be made use of to permit a son to call his father into a bourt of equity for every alteration he might make in piilling up the floor of the house, &c., it would be better for the public that Raby Castle had been pulled down than that such a precedent should have been set (Z). 6. The cutting of timber planted or left standing for orna- ment comes within the principle of equitable waste. " If," said Turner, L. J., in Micklethwait v. Micklethwait (ni), " a devisor or settlor occupies a mansion-house with trees planted or left standing for ornament around or about it, or keeps such a mansion-house in a state of occupation, and devises or settles it so as to go in a course of succession, he may reasonably be presumed to anticipate that those who succeed him will occupy the mansion-house, and it cannot be presumed that he meant («■) WUliams v. Day, 2 Ch. Ca. 32 ; {k) 1 Ves. 265. See Rolt v. Somer- Cooke V. Whaley, 1 Eq. Ca. Ab. 400, vUle, 2 Eq. Ca. Ab. tit. Waste, pi. 8. Anon., Preem. Ch. 278. (0 Peirs v. Peirs, 1 Ves. 521. U) Free. Ch. 454, 1 Salk. 161 ; 2 (m) 1 D. & J. 504, 524. Vern. 738. [281] * 271 EQUITABLE WASTE. [CH. XVI. it to be denuded of that ornament which he has himself en- joyed" (w). Tiie presumed will and intention of the settlor or devisor being the ground for the interference of the court, the court does^ not proceed upon any fancied notions of its own as to whether or not timber may be ornamental (o), but confines its protection to trees which have been planted or left standing for ornament by him (p). However ornamental, in fact, trees may be, they will not be protected unless they have been dedi- cated in some way or other by the settlor or devisor to * 271 the purposes of ornament (^q'). * Trees, on the other hand, which have been treated as ornamental by him will be considered by the court to be ornamental, whether they are or are not, in point of fact, ornamental. The taste of the grantor is binding upon the tenant for life, and the court will not inquire as to what is beautiful or not. All it has to ascertain is the intention of the settlor or devisor (r). 7. Trees which have been planted or left standing for the purpose of excluding objects from view (s), or for the purpose of shelter and protection to a mansion-house (t'), are regarded as ornamental timber. In Coffin v. Coffin (m), Lord Eldon re- fused that part of the order for an injunction which had been granted by the Vice-Chancellor, restraining a man from cut- ting trees which protected the premises from the effects of the sea. The reasons of his lordship are not given, and it is diffi- cult to see why that part of the order was refused. 8. The protection of the court is confined to trees of a purely ornamental character. Trees which have been planted for profit as well as for ornament will not be protected (a;). 9. The court has often much difiiculty in determining (n) See Turner v. Wright, 2 D. F. & 71 ; Lord Mahon v. Stanhope, 3 Madd. J. 234, 245. 523 ; Ford v. Tynte, 2 D. J. & S. 127. (o) Marker v. Marker, 9 Ha. 1, 17. (s) Day v. Merry, 16 Ves. 375 ; Camp- (p) Wombwell v. Bellasyse, 6 Ves. bell w. AUgood, 17 Beav. 627. 110 n. ; Marquis of Downshire v. (t) Chamberlayne v. Dummer, 1 Bro. Sandys, ib. 110; Marker v. Marker, 9 C. C. 166, 3 *. 549; Aston v. Aston, 1 Ha. 1, 17 ; Halliwell v. Philipps, 4 Jur. Ves. 265 ; Tamworth v. Lord Ferrers, N. S. 607 ; Ford v. Tynte, 2 D. J. & S. 6 Ves. 419 ; Marquis of Downsliire v. 127. Sandys, ib. 107 ; Coffin v. Coffin, Jac. (q) Ib. ; Williams v. Macnamara, 8 71 ; Potts v. Potts, 3 L. J. Ch. 177 ; Ves. 70 ; Coffin v. Coffin, Jac. 71. Campbell v. Allgood, 17 Beav. 626. ir) Wombwell v. Bellasyse, 6 Ves. (m) Jac. 71. 110, n. ; Marquis of Downshire v. {x) Halliwell v. Philipps, 4 Jur. N. S. Sandys, it. 110; Coffin v. Coffin, Jac. 608. See Micklethwait v. Mickle- thwait, 1 D. & J. 627. [282] CH. XVI.] EQUITABLE WASTE. * 272 whether trees have been planted or left standing for ornament. The question in all cases of the sort is a question of fact, and the main difficulty lies in the evidence necessary to establish the fact (y). The existence of a mansion-house will, in many cases, supply the court with evidence on which to determine the point as to the ornamental character of timber, for trees when in the neighborhood of a mansion-house will be assumed to have been planted for ornament (»). If, however, a mansion-house * with which timber has been connected * 272 has been pulled down, or has gone to ruin or decay, and there is no evidence to show that the devisor or settlor contem- plated that' the house would be rebuilt and intended the trees to be preserved with that view, the timber will not be treated as ornamental. The mere fact that he may have thought that the house might possibly be rebuilt is not enough to make the timber ornamental timber (a). But if it appears to have been the contemplation of the settlor or devisor that the house should I be rebuilt, or that the ground should be let on build- ing leases, the timber will be treated as ornamental (6). 10. It is not, however, necessary that timber should be con- tiguous to a house or park in order to entitle it to the protec- tion of the court as being ornamental (c). In Marquis -of Downshire v. Sandys (eZ), Lord Eldon extended the protection of the court to timber planted for the ornament of the walks, rides, avenues, vistas, plantations, and pleasure-grounds of the estate ten miles round, as well as to clumps of trees which were planted for ornament on a common at a distance of at least two miles from the house, and separated from it by land belonging to other owners (e). A ride cut through a wood iy) 9 Ha. 17. 206. See Micklethwait v. Micklethwait, {z) Micklethwait v. Micklethwait, 1 1 D. & J. 527. D. & J. 504, 526. See Wombwell v. (c) Wombwell v. Bellasyse, 6 Ves. Bellasyse, 6 Ves. 110, n. ; Marker v. 110, n. Marker, 9 Ha. 21. {d) 6 Ves. 110. (o) Newdigate v. Newdlgate, 8 Bligh, (e) See Newdigate v. Newdigate, 1 N. S. 734; Micklethwait v. Mickle- Sim. 131, 2 CI. & Fin. 601 ; HalliwelU. thwait, 1 D. & J. 504, 527. Phllipps, 4 Jur. N. S. 606 ; Mickle- (b) Wellesley v. Wellesley, 6 Sim. thwait v. Micklethwait, 1 D. & J. 504, 497; Morris D.Morris, 15 Sim. 507, 2 Ph. 528; Ford v. Tynte, 2 D. J. & S. 127. [283] * 273 EQUITABLE WASTE. [CH. XVI. will not protect more of the wood than the part which is near the .drive (/) . 11. In a case where the owner of an estate with a residence purchased adjoining land with ornamental wood, the court would not, from the mere fact that he had not cut down any of the trees during his life, infer that he intended the woods to be regarded as standing for ornament (^). The case, how- ever, would have been otherwise if there had been evi- * 273 dence to show * that he had cut out vistas in the wood, or had cleared out trees and surrounded them by pleasure- walks and seats, or had erected statues, columns, or the like (A). 12. The court, it may be observed, has much greater diffi- culty in determining that trees have been left standing or preserved by the settlor or devisor for ornament, than it has in determining that trees have been planted for ornament ; but the leaving trees standing beyond the usual and provident period of cutting, the clearing out of trees and surrounding them by pleasure-walks and seats, and other circumstances, from which an inference arises that the settlor or devisor regarded the trees with other views than as mere subjects of pcofit, may be considered as primd facie evidence that trees were left standing for shelter or ornament (i). It is doubtful whether the court can ever go back beyond the time of an absolute owner of the estate for the purpose of ascertaining whether timber is to be treated as ornamental (^). 13. In a case where there was no evidence to show that there was any timber upon the estate which could fall within the description of ornamental timber contained in a deed of settlement, other than the timber in certain woods, the descrip- tion was held to apply to that timber {I}. 14. Although the court will, as a general rule, abstain from exercising a judgment upon matters of taste ; yet where a (/) "Wombwell t). Bellasyse, 6 Ves. (i) Lushington m. Boldero, 6 Madd. 110, n. ; Halliwell v. Philipps, 4 Jur. 149. See Halliwell v. Philipps, 4 Jur. N. S. 607. See Burgess v. Lamb, 16 N. S. 607. "Ves. 183 ; Marker v. Marker, 9 Ha. 1, (k) Micklethwait v. Micklethwait, 1 17. D. & J. 504, 513. (jr) Halliwell V. Philipps, 4 Jur. N. S. (Z) Markers. Marker, 9 Ha. 1. See 608. Newdigate v. Newdigate, 1 Sim. 131, 2 (A) lb. CI. & Fin. 601. [284] CH. 2VI.J , EQUITABLE WASTE. * 274 deed of settlement provided that enough of the most orna- mental timber should always remain to leave the beauty of the place unimpaired, and the deed evidently referred to the state of the property at the time of its execution as the standard of beauty, the court directed an inquiry whether certain trees could be cut without impairing the beauty of the place as it stood at the date of the settlement (m). " Although there will be, no doubt," saidL. J. Turner (n), " great difficulty in executing a trust or enforcing an injunction to preserve the property according to a * certain standard of, beauty, * 274 the difficulty is not such as it is beyond the power of the court to grapple with." 15. The question what a prudent owner would do in the proper and ordinary course of management of his property can be no measure of the obligation which attaches in a court of equity upon a tenant for life without impeachment of waste with reference to timber planted or left standing for ornament. If there be evidence to show that a wood planted or left stand- ing for ornament had been resorted to by the absolute owner for the supply of timber for repairs or sale, a tenant for life without impeachment of waste may do the same, provided he acts as a prudent owner in a due course of management would db ; but if there be no evidence to show that the woods had been resorted to by him for repairs or sale, the owner of orna- mental timber may not cut for those purposes (o). He may, however, thin trees planted or left standing for ornament (p). So also when a tempest had produced gaps in a piece of ornamental planting, by which unequal and discordant marks and divisions were occasioned, the court would iiot restrain the cutting a few trees, so as to produce a uniform and con- sistent appearance (3). 16. The cutting of saplings or young trees, not fit for the purposes of timber, comes also within the principle of equitable waste; but a case of malicious waste must be made out, amounting to a spoliation or destruction of the property. The (m) Marker v. Marker, 9 Ha. 1. {p) v. Copley, 3 Madd. 525, n. in) lb. 18. See Barry v. Barry, IJ. & W. 654. lo) Ford V. Tynte, 2 D. J. & S. 127. (?) Lord Mahon v. Lord Stanhope, 3 ' Madd. 523, n. [285] * 275 EQUITABLE WASTE. [CH. XVI. mere fact that he may be felling trees of younger growth than would be felled by a prudent owner in the course of a hus- bandUke management of the estate, is not enough to induce the court to interfere with the legal power of a tenant for life without impeachment of waste. To come within the principle of equitable waste, a case of spoliation or destruction must be made out (r). In Hole v. Thomas (s), Lord Bldon * 275 considered the cutting saplings and * timber trees at unseasonable times to be a malicious destruction, and granted an injunction (t). 17. The cutting of underwood of an insufficient growth or at unseasonable times comes also within the principle of equitable waste, when it amounts to a destruction or spoliation of the property (u) ; and generally, it would appear, that the principle of equitable waste extends to any act which amounts to malicious waste, and goes to the wanton destruction and spoliation of the property (a;). 18. If the tenant for life be expressly bound to keep certain buildings in repair, this qualifies the gift to him without im- peachment of waste (y). The estate for life " without im- peachment of waste" is sometimes qualified by the clause " except voluntary waste," or words to that effect. This was the case in Garth v. Cotton (g). In his judgment Lord Hard- wicke said incidentally that timber could not be cut, but no relief was sought in that case against the tenant for life. In Vincent v. Spicer(a), Lord Romilly, M. R., considered the words " voluntary or permissive waste " qualifying an estate for life without impeachment of waste, as merely tantamount to " spoil and destroy," and held that the tenant for life or his assignee were entitled to cut such timber and other trees not (r) O'Brien v. O'Brien, Arab. 106 ; Bro. C. C. 166, 3 ib. 549 ; Pentland u. Pacliington's case, 3 Aft. 216 ; Aston Somerville, 2 Ir. Ch. 289. V. Aston, 1 Ves. 265 ; Peirs v. Peirs, ib. (u) Hole v. Thomas, 7 Ves. 589 ; 521 ; Ladj' Strathmore v. Bowes, 2 Bro. Brydges v. Stepliens, 6 Madd. 279, 2 C. C. 188 ; Smytlie v. Smytlie, 2 Sw. Sw. 150, n. 252; Coffin v. Coffin, Jac. 71; Lord (x) See Aston w. Aston, 1 Ves. 264 ; Tamwortli v. Ferrers, 6 Ves. 419 ; Hole Bishop of London v. Web, 1 P. Wms. V. Thomas, 7 Ves. 589 ; Potts v. Potts, 527. 3 L. J. Ch. 177 ; Pentland v. Somerville, (y) Caldwell v. Baylis, 2 Mer. 408. 2 Ir. Ch. 289 ; HalliweU v. I'hiUpps, 4 (z 3 Atk. 751, 1 Ves. 546, 1 Dick. Jut. N. S. 608. 188. (s) 7 Ves. 589. (o) 22 Beav. 380. (t) See Chamberlayne v. Dummer, 1 [286] CH. XVI.] EQUITABLE WASTE. * 276 planted or standing for ornament, as an owner of an estate in fee, having due regard to his present interest, and to the per- manent advantage of the estate, might properly cut in a due course of management. 19. The terms " without impeachment of waste " as applied to trustees of a term for special purposes, have a different sense from that of the same words annexed to a tenancy for life. Trustees of a term without impeachment of waste are bound to a more provident execution of their powers than a tenant for life, and must act in their trust as the court itself would act (J). 20. * It probably makes no difference whether the es- * 276 tate which is made unimpeachable of waste is freehold or a long term of years, determinable on the death of the lessee for life (c). But it seems that if a long term of years be declared at its creation to be unimpeachable of waste, and be afterwards settled on one for life, with remainder over, although the life estate is not expressly declared to be unimpeachable of waste, it will be so treated as between itself and those claiming the rest of the term Qd'). 21. The limitation to a tenant for life without impeachment of waste is sometimes made by the settlement subject to a power in trustees for a term to enter and cut timber. In a case where a discretionary power to this effect was vested in trustees for a term, the court protected them in the exercise of their power, there being an absence of all mala fides or of any wanton or unreasonable exercise of their discretion (e). So also where ithe limitation to a tenant for life without im- peachment of waste was subject to the power in trustees with the consent of the tenant for life, to cut timber for the purpose of paying off a mortgage debt, the court, upon the construction of the settlement, restrained the tenant for life from cutting timber for his own benefit (/). 22. A tenant for life without impeachment of waste will not (b) Marquis of Downshire«. Sandys, See Lord Downshire v. Sandys, 6 Ves. 6 Ves. 107, 114. 107 ; Craig on Trees, 50. (c) Garth v. Cotton, 3 Atk. 751 ; 1 (e) Kekewicii v. Marker, 3 Mac. & G. Ves. 524, 546, 1 Dick. 183. 311. (d) Bridges v. Stephens, 2 Sw. 150, n. (/) Briggs v. Earl of Oxford, 5 De G. & S. 156. [287] * 277 EQUITABLE WASTE. [CH. XVI. be permitted to gain any undue advantage from the exercise of a power or trust for sale or exchange of the settled estates. Thus, in Lady Plymouth v. Archer (^), lands were devised upon trust for sale, the produce to be invested in other lands to be purchased and to be to the use of Lord Archer for life without impeachment of waste, with remainders over, and there was a declaration that the rents and profits of the lands, until sold, were to be to the use of the person entitled to the estate to be purchased. Lord Archer was held not entitled to cut timber on the lands devised, because, as he would have a right to cut timber on the estate to be bought, that would be * 277 giving him * double timber. In a case, Burgess v. Lamb (A), before Lord Bldon, trustees for the purchase of real estate were made successively tenants for life without impeachment of waste of the estate to be purchased. An es- tate having been purchased with a disproportionate quantity of timber upon it, the question was whether the moneys had been properly laid out, and whether an injunction could be sustained against the first tenant for life in cutting timber. This ques- tion Lord Bldon would not decide, the frame of the record not being such as to bring it properly before him ; but he said that if the timber bore a very considerable proportion to the value of the whole purchase, the tenant for life, who was one of the trustees, could not be permitted to cut it (i). 23. A tenant for life in remainder without impeachment of waste, may not commit waste before his own estate has fallen into possession by leave of a tenant for life in possession who is impeachable for waste (^). So also the court will interfere if the tenant for life and the remainder-man in fee, subject to contingent estates, are committing waste in collusion (/!), or where waste is being committed by a tenant for life in posses- sion, who has the next vested estate of inheritance in remain- der, but subject to intermediate contingent estates (m). (cr) 1 Bro. C. C. 159. (Z) Garth v. Cotton, 1 Dick. 183, 1 (A) 16 Ves. 174. Ves. 524, 548, 3 Atk. 751 ; 6 Birch- {i) See Craig on Trees, 60-72. Wolfe v. Birch, 9 L. R. Eq. 683. (7c) Lady Evelyn's case, cited 2 (m) Williams v. Duke of Bolton, 1 Ereem. 55, 2 Sw. 172, & Dick. 209 ; Cox, 72. But see Aspinwall v. Leigh, Fleming v. Bishop of Carlisle, cited 2 Vern. 218 ; Claxton «. Claxton, 2 Dick. 209 ; comp. Davies v. Davies, 2 Vern. 152. Ir. Eq. 415. [288] OH. XVI.] INJUNCTIONS AGAINST WASTE. * 278 SECTION v. — INTEREST AND PROPERTY IN SEVERED TIMBER, ETC., ETC. — ACCOUNT. 1 & 2. Practice where timber is cut under order of tlie court. 3. Disposition to be made of the fund. 4. When an infant tenant in tail is in possession. B. Jurisdiction of court on this general subject extended by statute. 6. Timber on glebe land ordered to be cut. 7. When court will order ornamental timber to be cut. 8. Who has property in severed timber. 9. Party to a wrongful cutting cannot derive any benefit from his wrongful act. 10. Disposition of timber cut from lunatic's estate. 11 & 12. Rule as to property in severed timber does not apply to old trees. 13 & 14. Same rule applies in cases of equitable waste as in legal waste. IB. Property in severed minerals vests in a manner similar to that of severed trees. 16. Other cases where same rule applies. 17. When injunction will lie to restrain future waste, account will be ordered. 18. Account always granted in cases of mines and collieries. 19. Pleading in cases to stay waste by incumbent of living, or by bishop. 20. Account between tenants in common. 21. Account limited to moneys actually received. 22. If a case for account be made out, the law will not inquire whether or not the act complained of was a sound exercise of discretion. 28. Remainder-man for life cannot have account. 24 & 2B. Statute of Limitations. 26 & 27. Practice in cases of delay as to bringing suits to a hearing. 1. If there is any timber on the estate which is overripe or in a state of decay, or which ought for any other reason to be cut down, the court of chancery will, on the application either of the tenant for life or the remainder-man, order it to be cut down and sold, imposing at the same time such terms with respect to the fund produced by the sale as are equitable and proper (n). 2. * If the application is made by a remainder-man, * 278 care will be taken that the tenant for life is not preju- diced by the taking of trees which are necessary for repairs (o). The principle on which the court acts in cases of the sort, being not the personal benefit of the parties, but the benefit of the inheritance, the court will not order generally that those in) Bewick v. Whitfield, 8 P. W. Ha. 457 ; Eerrand v. Wilson, 4 Ha. 268 ; Ormonde v. Kynnersley, 7 L. J. 382. Ch. 155 ; Butler v. Kynnersley, 8 L. J. (o) Bewick v. Whitfield, 3 P. W. 268. Ch. 72 ; Tollemache v. Tollemache, 1 19 [289] * 279 INJUNCTIONS AGAINST WASTE. [CH. XVI. trees be cut down, which a provident owner might think fit and proper to be cut down in a due course of management, but will only order those trees to be cut down which are run- ning to decay, or which it is beneficial should be cut down by reason of being injurious to the other trees (;?). 3. The fund arising from the sale of timber felled under the order of the court will be ordered to be laid out either in the purchase of lands, to be settled according to the uses to which the estate is limited Qq), or in other ways which may be bene- ficial to the estate (r), or will be ordered to remain in court, or to be invested in consols. In an early case, Bewick v. "Whitfield (s) , the court would not allow the tenant for life to take any share in the interest of the fund (i) ; but it is now the settled rule to allow the tenant for life to take the interest of the proceeds for his life (m). In like manner a dowress would receive one-third of the income (v). The fund * 279 itself produced * by the sale vests absolutely either in a tenant for life without impeachment of waste, or in the owner of the inheritance, whether in fee or in tail, whichever estate comes first into possession after the death of the tenant for life (a;), and will, as between the claims of his real and personal representatives, be considered in the nature of real estate, unless something has been done in the mean time to convert it into personalty (y). (p) Hussey v. Hussey, 5 Madd. 44; (m) Tooker v. Annesley, 5 Sim. 237 ; Tooker w. Annesley, 5 Sim. 237 ; ToUe- Waldo v. Waldo, 7 Sim. 262; ToUe- mache v. Tollemache, 1 Ha. 456 ; Fer- maohe v. ToUemache, 1 Ha. 456 ; Fer- rand v. Wilson, 4 Ha. 344. See, as to rand v. Wilson, 4 Ha. 381 ; Gent v. the form of the order, Tooker v. Aunes- Harrison, John. 523 ; Field o. Brown, ley, 5 Sun. 237 ; Consett v. Bell, 1 Y. 27 Bear. 90. See WilUams v. Duke of & C. C, C. 573; ToUemache v. Tolle- Bolton, 1 Cox, 72; Bagot v. Bagot, mache, 1 Ha. 456 ; Gent v. Harrison, 32 Beav. 509 ; Dyer v. Dyer, 34 Beav. John. 523. See, when the tenant for 504. life is an infant, Consett v. Bell, 1 Y. & (v) Dickin v. Hamer, 1 Dr. & S. 284 ; C. C. C. 569. Bishop v. Bishop, 10 L. J. Ch. N. S. {g) Mildmay v. Mildmay, 4 Bro. C. C. 302. 76 ; Delapole v. Delapole, 17 Ves. 150; (x) Tooker v. Annesley, 5 Sim. 237 ; Wickham v. Wickham, 19 Ves. 428. Waldo v. Waldo, 12 Sim. 107 ; PhUipps See Powlett v. Duchess of Bolton, 3 u. Barlow, 14 Sim. 263; Gent u. Harri- Ves. 374. son, John. 523 ; Field v. Brown, 27 (r) Osborne v. Osborne, cited 19 Ves. Beav. 92. 422. (i^) Field v. Brown, 27 Bear. 92. (s) 3 P. W. 268. See Tullitt v. TuUitt, Amb.370; Dyer (i) But see Tooker v. Annesley, 5 k. Dyer, 34 Beav. 504. Sim. 237 ; see also Osborne v. Osborne, cited 19 Ves. 422. [290] CH. XVI.] INJUNCTIONS AGAINST WASTlii. * 280 4. Where there is an infant tenant in tail in possession, the court will authorize the cutting of all timber which is fit and proper to be felled in a due course of management of the prop- erty (2), and the produce arising from the sale will be con- sidered as personal estate (a). If the infant has the fee, the produce arising from the sale of timber ordered by the court to be cut, seems to be real estate (6). 5. The jurisdiction of the court to direct the fall and sale of timber on settled estates, has been extended by the settled estates act (c). The court has been empowered by that act to authorize a sale of the whole or any part of the timber (except ornamental timber) growing on any settled estates. The manner of dealing with the purchase-moneys as presented in sec. 23 does not seem to be entirely in accordance with the rules previously existing. 6. The court, it has been said, will have no difficulty on a proper application in directing timber on glebe land to be cut down, and the produce applied for tlie benefit of the living (c?). T. The court will also order ornamental timber, or timber which forms a shelter or defence to a mansion-house, to be felled, where it is decaying or injurious to adjoining trees (e), or where it is necessary for the well-being, salubrity, and comfort of the * mansion-house that it should be * 280 cut, or where any other good reason can be shown why it should be cut (/). The property in ornamental timber cut under the authority of the court vests, it would appear, as well in equity as at law, in the tenant for life without impeachment of waste; as soon as it has been cut. 8. Timber which has been severed accidentally, as by a tem- pest (^), or has been wrongfully cut down by a trespasser, or (z) Hussey v. Hussey, 5 Madd. 44. (e) Lushington v. Boldero, 6 Madd.149. (a) Tullitt V. TuUitt, Amb. 370, 1 (/) Campbell v. AUgood, 17 Bear. Dick. 322. 637 ; Att.-Gen. v. Duke of Marlborough, (6) Tullitt V. TulUtt, Amb. 370. But 5 Madd. 280 ; Ormonde v. Kynnersley, see Dyer v. Dyer, 34 Bear. 504, comp. 7 L. J. Ch. 165 ; Butler v. Kynnersley, Ex parte Bromfield, 1 Ves. Jr. 462; 8 L. J. Ch. 67. Oxenden v. Lord Compton, 2 Ves. Jr. {g) Whitfield v. Bewit, 2 P. W. 241 ; 69, 261. See also Ex parte Philipps, 19 Duke of Newcastle v. Vane, cited ib. ; "Ves. 120. Bewick v. Whitfield, 3 P. W. 267, per (c) 19 & 20 Vict. c. 120, s. 11. Lord Talbot; Garth v. Cotton, 1 Ves. {■d] Duke of Marlborough v. St. 524, 646, 1 Dick. 183, 3 Atk. 751 ; Lee John, 6 De G. & S. 179. v. Alston, 1 Bro. C. C. 196. [291] * 281 INJUNCTIONS AGAINST WASTE. [CH. XVI. by a tenant for life or years, impeachable of waste, belongs to him who has, at the time of severance, the first estate of in- heritance in esse whether in fee or tail (A), who may bring trover for it, notwithstanding the existence of intermediate estates and contingent remainders in tail that may afterwards arise and defeat his estate (^i) : but the owner of the inheri- tance may so adopt the acts of the person committing waste, as to prevent his obtaining the relief he would otherwise be en- titled to (^). Lord Romilly, M. R., has in two or three cases held that the property in timber which has been severed either by accident, or by the act of a wrong-doer upon an estate in settlement, follows the uses of the settlement, the interest of the fund produced by the sale of the timber to be taken by the successive tenants for life (except the wrong-doer), and the fund itself, by the person who may happen to be owner * 281 of the inheritance at * the death of the last tenant for life (0- But the opinion of his lordship does not seem to be in accordance with the earlier authorities (to). 9. A man who has wrongfully cut timber, or been in any way party to the wrong, cannot derive any benefit from his wrongful act (n). Thus, where timber had been cut down under a collusive agreement between the tenant for life and the remainder-man in fee before the contingent estates came into esse, the latter was ordered to refund his share of the moneys produced by the sale of n the timber (o). So, also, (h) 4 Co. Eep. 62 a. ; 5 Co. Eep. 76 Dare v. Hopkins, 2 Cox, 110 ; Gent v. b. ; 11 Co. Eep. 46; Lewis Bowie's Harrison, John. 517. case, 11 Co. Eep. 79, 3 Lev. 209 ; Berry (k) Gresley v. Monsley, 3 D. F. & J. V. Heard, Cro. Car. 242 ; Udal v. Udal, 438. Ab. 81 ; Wliitfleld v. Bewit, 2 P. W. (I) Bateman v. Hotchkin, 31 Beav. 240 ; Lee v. Alston, 1 Bro. C. C. 194, 3 486 ; Bagot v. Bagot, 32 Beav. 509. Bro. C. C. 87, 1 Ves. Jr 78; Williams See Lushingtou v. Boldero, 15 Beav. 1. V. Duke of Bolton, 3 P. W. 268 n. ; (m) See also Ex parte Bromfield, 1 Powlett V . Duchess of Bolton, 3 Ves. Ves. Jr. 459 ; Oxenden v. Lord Comp- 874; Dare v. Hopkins, 2 Cox, 110; ton, 2 Ves. Jr. 264; Bell v. Wilson, 1 Pigot V. Bullock, 1 Ves. Jr. 479. See L. E. Ch. Ap. 303. Bell V. Wilson, 1 L. E. Ch. Ap. 308. (n) Tooker v. Annesley, 5 Sim. 240. See Gent v. Harrison, John. 517, as to See Lushington v. Boldero, 15 Beav. 1 ; the relative rights of the heir and re- Bateman v. Hotchkin, 31 Beav. 486 ; mainder-man for life without impeach- Bagot v. Bagot, 32 Beav. 509. ment of waste in respect of timber (o) Garth v. Cotton, 1 Ves. 524, 546, wrongfully cut by a previous tenant 3 Atk. 751, 1 Dick. 188. See Stans- for life. See also Eolt v. Lord Somer- field v. Habergham, 10 Ves. 279 ; Lush- viUe, 2 Eq. Ca. Ab. 759. ington v. Boldero, 15 Beav. 1. (t) Lee V. Alston, 1 Bro. C. C. 37 ; [292] CH. XTI.J INJUNCTIONS AGAINST WASTE. * 282 where a tenant for life of a settled estate with contingent re- mainders in tail, with remainder to himself in fee, wrongfully cut timber, while the contingent estates were in expectancy, he was not permitted to take any benefit from the produce of the sale of the timber (p) . The rule that a man who has wrong- fully cut timber cannot take any benefit from his wrongful act, applies also in the case of an unsettled estate. In TuUitt v. TuUitt (g), an infant being tenant in fee, his guardian, who was his mother, cut down trees as upon the part of the infant. The heir of the infant brought his bill to have the money which arose from the timber secured ; and the court held that no benefit whatever should result to a person who might be- come the sole next of kin of the infant, but that the money should be reserved for the benefit of the inheritance (r). 10. The committee of a lunatic's estate in fee-simple may, it would appear, cut down timber fit and proper to be felled in a due course of management, and may after the death of the lunatic claim the proceeds as part of his personal estate, unless there is reason to believe that he has abused his trust, as * guardian, with the view of changing the quality of * 282 the estate for his own interest (s). As between the heir and personal representatives of a lunatic, the proceeds of timber which have been cut upon an estate in fee-simple be- longing to him are personal assets (f). 11. The rule with respect to property in severed timber does not apply to dotards or old trees, which have no timber in them, and which are either blown down, or felled by the ten- ant. They are the property of the tenant (u). So, also, are the proper and regular thinnings of trees in a wood, and the trimmings of hedges, the property of the tenant for life (i>). (p) Williams v. Duke of Bolton, 3 ib. as to the distinction between the P. W. 268, 1 Cox, 72 ; Powlett o. estates of lunatics and infants. Duchess bf Bolton, 3 Ves. 374. See (() Ex parte Bromfield, 1 Ves. Jr. Dare v. Hopkins, 2 Cox, 112. 453 ; Oxenden v. Lord Compton, 2 Ves. (?) Amb. 371. Jr. 69, 261. (r) See Tooker v. Annesley, 5 Sim. (u) Herlakenden's case, 4 Co. Rep. 240; Craig on Trees, 110. 63 b. ; Countess of Cumberland's case, (s) Ex parte Bromfield, 1 Ves. Jr. Moor. 812 ; Channon v. Patch, 5 B. & 453 ; Oxenden v. Lord Compton, 2 Ves. C. 897. Jr. 69, 261 ; Craig on Trees, 112 ; Ex (v) Berriman v. Peacock, 9 Bing. parte Philipps, 19 Ves. 118. See also 384; Pidgeley v. Kawling, 2 Coll. 275; Gordon v. "Woodford 27 Bear. 603; [293] * 283 INJUNCTIONS AGAINST WASTE. [CH. XVI. * 12. Where timber trees on copyhold lands are separated from the soil by whatever act or casualty in the absence of a special custom, the tenant's possessory right ends, and the landlord may take them. But as to pollards, dotards, bushes, &c., the law is otherwise ; and if thrown down, they belong to the tenant (a;). 13. The same principles with respect to property in severed timber which apply in cases of legal waste, are also generally applicable in cases of equitable waste. A tenant for life with- out impeachment of waste, who commits equitable waste by cutting ornamental timber, cannot be allowed to take any benefit from his wrongful act («/) ; but it would appear that if the timber cut by him is such as the court would upon a proper application have directed to be cut as for the benefit of the estate, the court may, at its discretion, allow the interest aris- ing from the fund produced by the sale to be paid to the tenant for life (g). Whether the property in the timber, or the * 288 fund * arising from the sale of the timber, belongs to the first owner of the inheritance, or follows the uses of the settlement, is a question which is not free from doubt. In Ormond v. Kynnersley (a); and Butler v. Kynnersley (6), Lord Lyndhurst was of opinion that no distinction could be made between legal and equitable waste in respect of the prop- erty in severed timber, and that the owner of the first vested estate of inheritance, who was not a wrong-doer, was entitled to it, as well in the one case as the other, notwithstanding the intervention of intermediate estates and contingent estates tail (c). But in three subsequent cases, — Wellesley v. Welles- ley (c^), Lushington v. Boldero (e), Duke of Leeds v. Am- herst (/), — in none of which Butler v. Kynnersley appears to have been cited, it was assumed that the produce of ornamen- tal timber, wrongfully cut, follows the uses of the settlement (^). Bateman v. Hotchkin, 31 Beav. 486 ; (c) See Rolt v. SomerviUe, 2 Bq- Ca. Bagot V. Bagot, 32 Beav. 509 ; Earl Ab. 759. Cowley V. Wellesley, 1 L. R. Eq. 656 ; (d) 6 Sim. 497. comp. Craig on Trees, 59. (c) 15 Bear. 1. (x) Scriv.in Cop.422, n. g. (/) 2 Ph. 120. (y) Wellesley v. Wellesley, 6 Sim. {g) See note to Lushington w. Boldero, 497; Lushington w. Boldero, 15 Beav. 1. 15 Beav. 9,10; see, also, Bagot ». Iz) Bagot V. Bagot, 32 Beav. 509. Bagot, 32 Beav. 509 ; Craig on Trees, a] 7 L. J. Ch. 155. 134. (b) 8 L. J. Ch. 71. [294] CH. XVI.J INJUNCTIONS AGAINST WASTE. * 284 14. In one case (h), an injunction was granted to restrain a person wlio li'ad committed waste by cutting down timber, from carrying tlie timber away ; but this cannot be considered sound law, though, perhaps, in a very exceptional case, an in- junction might be granted on the ground of irreparable mis- chief. An injunction might, however, it appears, be granted to restrain the carrying away of timber standing at the time of process served (i). ' 15. The property in minerals severed from the inheritance vests in a manner similar to that of severed trees. The owner of the inheritance is entitled to the proceeds as against persons having estates in remainder prior to the ultimate limitation in fee vested in him (y ). If a tenant for life impeachable of waste commits waste by opening mines, the minerals belong to the remainder-man in fee ; but the latter may, by adopting the acts of the tenant for life, preclude himself from enforc-' ^ ing his * rights (A). A tenant for life without impeach- * 284 ment of waste has of course a right to open new mines and to take the minerals for his own use Q'). 16. Considerations of a similar nature apply in other cases of waste. Where, for instance, deer in a park have been re- claimed by a tenant for life, the property in the deer so reclaimed passes to the person entitled to the first estate of inheritance in remainder (m). 17. In all cases in which a bill for an injunction will lie to restrain future waste, a court of equity will, upon the principle of preventing a multiplicity of suits, give an account of past waste (n), but where from the determination of the estate of the wrong-doer, or some other reason, there is nothing on which the injunction can operate, and complete relief can be had in an action at law, a bill for an account will not, as a general rule, lie (o). But if the waste is of such a nature (h) Anon., 1 Ves. Jr. 92. (n) Jesus College v. Bloom, 3 Atk. (i) Watson v. Hunter, 5 Johns. Ch. 263, Amb. 54 ; Parrott v. Palmer, 3 M. (Amer.) 168. & K. 632. ( )■) BeU V. Wilson, 1 L. E. Ch. Ap. (o) Jesus College v. Bloom, 3 Atk. 303. 263, Amb. 54 ; Smith v. Cooke, 3 Atk. (k) Gresley v. Monsley, 3 D. T. & 381 ; Pulteney v. Warren, 6 Ves. 89 ; J.433. SeeBagotu.Bagot,32Beav.509. Grierson u. Eyre, 9 Ves. 346; Parrott (1) Countess of Plymouth v. Lady v. Palmer, 3 M. & K. 632 ; Gent v. Archer, 1 Bro. C. C. 159. Harrison, John. 517. See Bailey v. (m) Eord v. Tynte, 2 J. & H. 150. Taylor, 1 E. & M. 73. [295] * 285 INJUNCTIONS AGAINST WASTE. [CH. XVI. that there is no remedy at law, and a wrong will be sustained if equity does not interfere, a bill for an account will lie, although an injunction may not be competent. Thus, in Garth v. Cotton (p), a decree for an account of timber was made against the assets of a remainder-man in fee, who had colluded with the tenant for life in cutting timber before the birth of a contingent remainder-man (§'). So, also, in cases of equitable waste, a bill for an account will lie against the assets of a deceased wrong-doer, though an injunction is not competent (f). So, also, a clerk after recovery in quare impedit is entitled to an account for waste (s). * 285 18. * Mines and collieries, being a species of trade, an account of profits will in all cases be granted, with- out reference to the question whether or not an injunction will lie, or whether or not there is a remedy at law (t). 19. A bill for an injunction by the patrOn of a living to stay waste by an incumbent, or by the Attorney-General to stay waste by a bishop, should not pray for an account of the profits for their own benefit as patrons (m). 20. If one co-owner of land derives gain by committing destructive waste on the common property, he is liable to account to the other owners for their shares of the money so obtained (»). The tenant in common of a mine is accordingly entitled to an account of the moneys produced by working the mine (y"). But a tenant in common in occupation of an estate is not liable to account for waste which falls short of destruc- tive waste (2). 21. The account is limited to the moneys actually received and the profits actually made by the wrong-doer. There can {p) 3 Atk. 751; 1 Ves. 524, 546; 1 2Atk. 630; Jesus College v. Bloom, 3 Dick. 183. Atk. 263, Amb. 54 ; Pulteney v. Warren, (g) See Mshmongers' Co. v. Beres- 6 Ves. 89 ; Thomas v. Oakley, 18 Ves. ford. Beat. 607; Parrott v. Palmer, 3 184; Jefferys v. Smith, IJ. & W. 298; M. & K. 632 ; Johnstone v. HaU, 2 K. Parrott v. Palmer, 3 M. & K. 642. & J. 422. (u) Knight v. Moseley, Amb. 176. (r) Marquis of Lansdowne v. Mar- (x) Co. Litt. 200 b.; Martyn v. chioness of Lansdowne, 1 Madd. 116 ; Knowlys, 8 T. R. 145. See Twort v. Duke of Leeds v. Lord Amherst, 2 Ph. Twort, 16 Ves. 128. 117 ; Morris v. Morris, 3 D. & J. 323 ; (y) See Bentley v. Bates, 4 Y. & C. Blake v. Peters, 1 D. J. & S. 345. 182. See, also, Clegg v. Clegg, 3 Giff. (s) Crampton t). Bishop of Meath, Sa. 822. & Sc. 297. - (z) Griffies v. Griffies, 8 L. T. N. S. (t) Bishop of Winchester v. Knight, 758, 11 W. R. 943. 1 P. W. 406 ; Story v. Lord Windsor, [296] CH. XVI.j INJUNCTIONS AGAINST WASTE. * 286 be no account in respect of acts unattended by profit (a). When, accordingly, equitable waste had been committed by a tenant for life without impeachment of waste in pulling down a mansion-house and building a new house with the materials of the old one on another part of the estate, but it did not appear that any profit had been derived from the sale of the materials, the court held that an account could not be had against the assets of the deceased tenant for life. The case would have been otherwise, if he had sold the materials and received the profits (5). 22. If a case for account be made out, the court can- not inquire, * whether the act complained of was or was * 286 not a sound exercise of discretion with reference to the state of the property and to the interests of the family to which it belongs (c). 23. A mesne remainder-man for life, although entitled to an injunction to protect his enjoyment, has no interest to call for an account (c?). 24. The statutory rule which gives a man twenty years from the time when his title accrues in possession for bringing a suit, applies to a claim for equitable waste, as well as to a claim for the land itself (e ) ; but, if there has been acquies- cence, relief will not be given, although the statutory period may not have run (/). 26. In the case of legal waste, the account in equity is con- fined within the same limits as the remedy at law (^). But if accounts have been rendered within six years before the filing of the bill of acts of waste committed during a period ending more than six years before the filing of the bill, the case is taken out of the statute of limitations Qi). If a tenant for life impeachable of waste cuts timber and converts the produce (o) Lee V. Alston, 1 Ves. Jr. 78, 1 (e) Duke of Leeds v. Lord Amherst, Bro. C. C. 194, 3 Bro. C. C. 37 ; Col- 2 Ph. 117. burn V. Simms, 2 Ha. 560; Powell v. (/) Harcourt v. White, 28 Beav. Aikin, 4 K. & J. 343, 351 ; supra, p. 306. See Fishmongers' Co. v. Beres- 228. ford. Beat. 613. Ih) Morris V. Morris, 8 D. & J. 823. iq\ Supra, p. 228. (c) Duke of Leeds v. Lord Amherst, (A) Hony v. Hony, 1 Sim. & St. 2 Ph. 117. 568. See, as to interest on produce of (d) Pigot V. BuUock, 1 Ves. Jr. 479, waste, Newdigate v. Newdigate, 1 Jur. 3 Bro. C. C. 538. See Gent v. Harri- 636. son, John. 524. [297] *286 INJUNCTIONS AGAINST WASTE. [CH. XVI. to his own use, the statute of limitations begins to run against the remainder-man from the time of cutting, and not from the death of the tenant for life (^'). 26. If there has been long delay in instituting the suit, the court will usually endeavor to deal liberally with the estate of the deceased tenant for life, inasmuch as, in many cases, it would not be for the benefit of the parties concerned to go into a long and expensive inquiry on the subject (^). 27. Suits for an injunction to stay waste should not be brought to a hearing when no account is sought, or the account is waived, and the defendant does not dispute the right of the plaintiff to have the injunction continued, or offers to submit to the injunction with costs (Z). (i) Seagram v. Knight, 3 L. E. Bq. 398. (k) Bagot V. Bagot, 32 Bear. 509, 519. But see Duke of Leeds v. Lord Amherst, 20 Beav. 239. See, also, Bagot V. Bagot, 32 Beav. 509, 521, 522, as to accounts and inquiries in a case of waste, both in timber and mines, presenting a great complication of cir- cumstances. See, also, Tooker v. Annes- ley, 5 Sim. 235, for the form of inquiry as to timber. {I) Harvey v. Perguson, 16 Ir. Ch. 277; Duusany w. Durme, i6. 279 ; supra, p. 228. [298] CH. XVII.] INJUNCTIONS AGAINST TEESPAS8. * 287 •CHAPTER XVII. *287 INJUNCTIONS AGAINST TRESPASS. 1. Jurisdiction of court to grant injunctions against trespass of modern establishment. 2. Cases where applications are made by party out of possession. 3. Where by party in possession. 4. Where the trespass is under color of rights, and where application is made by party in possession. 6. Other cases. 6. Case of Lowndes v. Settle. 7 & 8. Courts will not interfere in oases of mere naked trespass. 9. Principles on which court acts in restraining trespass. 10-12. In case of trespass by public companies. 13. Injunction against a company continuing in possession. 14. Who may sue. 16. Plaintiff should show diligence in making application. 16. Nature of parliamentary powers to take land, &c. 17 & 18. How acts of Parliament are to be construed. 19 & 20. Persons empowered by statute to take lands may take what they shall deem necessary so long as there is ionajldes. 21-86. English statutes enabling corporations to take lands. 87-91. Inspection, access, &c., ordered in case of mines. 92. Principles governing account in cases of trespass for underground working of mines. 93 & 94. Court will issue mandatory injunction against trespass. 95. Perpetual injunctions, when granted. 1. The jurisdiction of a court of equity to grant injunctions against trespass is comparatively of modern establishment (a). The court for a long time confined relief in equity to waste, founding its interference on the privity of title between the parties (6). The rigor of the old rule in confining relief in equity to waste, was relaxed for the first time by Lord Thurlow in a case where, the party complaining being in possession of a close, a wrong-doer was working into his minerals, and taking away the very substance of his estate (c). In relaxing the rule. Lord Thurlow acted with reluctance, and was influenced (a) 3 Ea. Ca. 355. (c) Flamang's case, cit. 6 V'ea. 147, 7 (6) Darenport v. Davenport, 7 Ha. Ves. 308, 8 Ves. 90, 18 Ves. 186. 217; Lowndes u. Bettle, 33 L. J. Ch. 451. [299] * 288 INJUNCTIONS AGAINST TBBSPA8S. [CH. XVII. solely by the irreparable and destructive injury which would have followed the refusal (i). The principle esiablished by Lord Thurlow in Flamang's case was approved. by Lord Eldon, and followed by him in some cases ; but the law on the subject was left by him in an unsatisfactory state. Succeeding judges have, on more than one occasion, pointed this out, and have felt much difficulty in finding the principle upon which to act in each case as it arose. ^ 2. Th^ state of the law, and the various authorities, were reviewed with much care by Kindersley, V. C, in Lowndes v. Bettle (e). " The proper mode," he said, " is to classify the cases under two heads : the one, where the party against whom the application for the injunction is made is in posses- sion ; and the other, where the plaintiff is in possession, and is asking the court to protect his estate. With respect to the cases where the defendant is in possession, the eai'liest is Hamilton v. Worsefold, before Lord Thurlow, which is to be found in a note of Sir S. Romilly (/). That was a * 288 case * in which it could hardly be considered that either party was actually in possession : perhaps the defendant was, but the plaintiff never recovered rent ; and Lord Thur- (d) 18 Ves. 186 ; 4 K. & J. 122. the Tiolated rights of the party. So (e) 33 L. J. Ch. 451. where an easement or servitude is (f ) 10 Ves. 290i n. annexed by grant, or covenant, or other- iThe interference of the court of wise to a private estate, the due and equity by injunction in a case of tres- quiet enjoyment of it will he protected pass to land, and where an action at against encroachment by injunction, law will lie, is of modem origin, and An application to restrain the commis- the exercise of power to be justified sion of a trespass is addressed to the only in a case of great and irreparable sound discretion of a court, and the injury ; and the petitioner should show irresponsibility of the defendant is one at least a strong prima facie case of a element to be weighed, and often of right. Falls Village Water Power Co. much importance, but by no means V. Tibbetts, 31 Conn. 165. In Webber v. decisive. Morgan v. Palmer, 48 N. H. Gage, 39 N. H. 186, it is said that 338. where the injury is irreparable, not sus- Where property was bequeathed to ceptible of being adequately compen- the separate use of a, feme covert, with- sated by damages, or such as, from its out any trustee being appointed by continuance or permanent mischief, the will, and the property was about must occasion a constantly recurring to be sold under an execution against grievance, which cannot be otherwise the husband for his debt, it was held, prevented, as where loss of health, loss that the legal estate being in the hus- of trade or business, destruction of the band, and therefore there being no one means of subsistence, or permanent to sue for the trespass, the court would ruin to property, may or will ensue interfere to protect the property by from the wron^ul acts ; in such case injunction. Smith v. Bank of Wades- a court of equity will interfere by borough, 4 Jones, Eq. 303. injunction in fixrtherance of justice and [300] OH. XVII.]' INJUNCTIONS AGAINST TRESPASS. * 289 low, after some hesitation, granted an injunction, restraining not only the defendant, but the tenants from committing waste. Not miich reliance can be placed upon that case, because there may have been collusion between the defendant and the tenants, and it may be that the defendant was not in possession. Lord Thurlow at first considered it as a trespass, but ultimately did restrain the defendant and the tenants (^). The next case was Pillsworth v. Hoptoh Qi), in the year 1801. There the defendant being in possession, the plaintiff claimed under an adverse title, and Lord Bldon refused the injunction. The next case is Crockford v. Alexander (i), in 1808, a case of vendor and purchaser, a peculiar case, and hardly in point. The plaintiff had contracted to sell an estate to the defendant, who obtained possession and began to cut timber. It is diffi- cult, therefore, to say that there might not have been privity. Jones V. Jones (Ic) was before Sir W. Grant. In that case a demurrer was filed by the defendant to a bill by an heir at law, seeking discovery and relief, including an injunction to stay waste and destruction pending litigation ; Sir W. Grant allowed the demurrer. In that case it was held that an heir, at law out of possession could not have an injunction against a devisee in possession. Sir W. Grant says, ' I cannot see a very good reason why the court, which interferes for, the protection of property pending a suit in the ecclesiastical court, should not interfere to preserve real property pending a suit concerning the validity of the devise.' The next case is Haigh V. Jaggar (J). There there was a house and land, with coal under it. It did not appear that the plaintiffs were working, but the defendants were working out of their own mines into those of the plaintiffs. The latter parties brought two actions, and Knight Bruce, L. J., refused the injunction, expressing dissatisfaction with the state of the law. The next case is Davenport v. Davenport (m), in 1849, before Wigram, V. 0. There, the defendant having been in possession * for nineteen years, the plaintiff, with a recently dis- * 289 covered title, sought an injunction to restrain him from |cf) Eeg. Book A., 1786, fol. 1. {h) 3 Mer. 161. ) 6 Ves. 51. /) 2 Coll. 231. [i) 15 Ves. 138. (m) 7 Ha. 217. [301] * 290 INJUNCTIONS AGAINST TRESPASS. [CH. XVII. cutting down ornamental timber ; the Vice-Chancellor ex- pressed his surprise at tlie state of tlie law, and said he was compelled to allow the demurrer. The next case is Talbot v. Hope (w). The court there stated how much more reluctant it is to entertain a suit against a person in possession than where he is not. The question which party is in possession is therefore of great importance, and ought to be made the foun- dation of the distribution of the cases. In Neale v. Cripps (o), an injunction was granted to restrain stripping timber oif an estate, on the ground that the acts done by the defendant tended to the destruction of the estate. Sir A. Hart acted on the same principle in Lord Pingal v. Blake (p) and Lloyd v. Trimleston (5). The result of these cases is that where the plaintiff is out 'of possession, the court will refuse to interfere by granting an injunction, unless there be fraud or collusion, or unless the acts perpetrated or threatened are so injurious as to tend to the destruction of the estate (r)." He must also, it would appear, be able to satisfy the co.urt that there is an action pending at law between him and the defendant in pos- session, which will try the right as between them (s). 3. " The cases where the plaintiff is in possession," said Kindersley, Y. C, in Lowndes v. Settle (f), " may be divided under two subordinate heads : first, where the defendant claims under color of right ; and, secondly, where he is an absolute stranger. Taking the second of these classes, we have the case of Mogg v. Mogg (u), before Lord Thurlow, in 1786. There the injunction was refused on the ground that the defendant was a mere trespasser, and an action would lie. In Mortimer v. Cottrell («), in 1789, where the defendant had received from the plaintiff permission to dig to a certain depth, but went beyond it, the injunction was refused, because * 290 it was a * case of trespass, and the defendant might at law have been turned out of possession immediately. n) 4K, & J. 108. (s) Talbot v. Hope, Scott, 4 K. & J. 0) lb. 472. 96, 135, per Wood, V. C. See Vice v. 'p\ 2 Moll. 50, 542. Thomas, 2 Coop. C. C. 122 ; Neale v. q) lb. 81 ; see also Anwyl v. Owens, Cripps, 4 K. & J. 472. 22 L. J. Ch. 995. («) 83 L. J. Ch. 451. (r) See Lancashire v. Lancashire, 9 (u) 2 Dick. 670. Beav. 120. («) 2 Cox, 205. [302] CH. XVli.] INJUNCTIONS AGAINST TRESPASS. *291 Mitchell V. Dors (x) was a case of coal-mines in work ; there it was held to be trespass and not waste, and yet an injunction was granted, because, being coal-mines, the mischief was con- sidered irreparable. I confess I cannot see why the mischief done in the case of coals is more irreparable mischief than in that of trees, for in both cases the injury, whether great or small, may be the subject of money compensation. Courthope V. Maplesden («/) was a case relating to timber, where the in- junction was granted, the fact being that a stranger was col- luding with the tenant. In Cowper v. Baker (a), a party was restrained from taking argillaceous stones under the sea. The case was also one of a stranger. In it the mischief was con- sidered to be irreparable. The plaintiff was lord of the manor in possession, and his rights extended out beyond low-water mark. Lumps of argillaceous matter of great value were found within its limits. Great profit was derived from the sale of the article, and Lord Eldon considered the damage there done to the plaintiff to be irreparable, not because it was a destruction simplieiter, but because it was a taking away of the substance of the inheritance." 4. The other class into which Kindersley, V. C, subdivided the second head is where the trespass is under color of right. The meaning of the phrase under color of right or title has been thus explained by Wigram, V. C, in Davenport v. Dav- venport (a) : " The party complaining has been in possession of property, and has complained that his possession was wrong- fully invaded by some alleged trespasser. The alleged tres- passer, on the other hand, has not admitted the possession of the plaintiff, nor claimed a right to invade such possession as he had, nor intended to do so, as in the case of underground workings of adjoining mines ; and the court has distinguished these cases from ordinary cases of trespass, by saying the alleged wrong-doer claimed under color of title. The cases of railway companies taking lands under the compulsory powers given them by Parliament are of the same class. Neither party disputes the abstract right of * the other * 291 to that which he claims. The dispute is as to the prac- x) 6 Ves. 147. (e) 17 Ves. 128. [y) 10 Ves. 289. (a) 7 Ha. 217. [803] * 292 INJUNCTIONS AGAINST TRESPASS. [CH. XVII. tical application of the law to the facts of the case. It has always appeared to me that the court was trying to get out of a technical rule with a view to the better protection of tha property " (J). The first case in which the court interfered upon the ground of color of right, was, said Kindersley, V. C. (c),"a case before Lord Camden, not reported origi- nally, but cited in Mogg v. Mogg (d). No name is there given to it, but it was a case where persons were cutting down tim- ber under color of right to estovers. The plaintiff, who was lord of the manor, probably alleged the cutting to be beyond what was wanted for estovers. At all events, the injunction seems to have been granted. Lord Thurlow, however, said that the case did not apply to Mogg v. Mogg, for in that case there appeared to be a right to something in the defendants, though perhaps they carried it beyond what such right went to, and that, until such right was determined, it was very proper to stay them from doing an act which, if it turned out that they had no right to do, would be irreparable. But in Mogg V. Mogg the defendant had no interest ; he was a mere trespasser. In the case of Robinson v. Lord Byron (e), the plaintiff was in possession of his own water-mill. The defend- ant was the owner of the water above the mill, and in order to vex the plaintiff sometimes kept back the water from the mill, and sometimes deluged it with water. In that case it was difficult to say which was in possession, but Lord Byron was restrained from so using the stream as to do mischief to the plaintiff's mills. In Smiths. Collyer (/), the injunction was refused by Lord Bldon because it was a case of trespass. There infants were in possession by their guardians, and de- fendant claimed as heir. Knight Bruce, L. J., in Haigh v. Jaggar (^), hesitated to say that Lord Bldon was wrong in Smith V. Collyer, but he was not satisfied that in the same circumstances the court would not now grant an injunction, and he referred to the change which had taken place in * 292 the law on the subject. * Grey v. Duke of Northum- (6) See Hattersley v. East Lancas- (d) 2 Dick. 670. shire Railway Co., 8 Ha. 88 ; North e) 1 Bro. C. C. 588. Union Railway Co. v. Bolton and Pres- (/) 8 Ves. 89. ton Railway Co., 3jRa. Ca. 346. (g) 2 CoU. 231. (c) 33 L. J. Ch. 456. [304] CH. XVII.] INJUNCTIONS AGAINST TRESPASS. * 292 berland (K) was a case of copyhold, and there an ex parte injunction was granted to restrain the opening of a mine. The defendant claimed as lord of a manor, and Lord Bldon, upon the motion to dissolve, said he would do so, unless some means of producing a speedy trial of the right at law could be insured. Kinder v. Jones (i) was also the case of a lord of a manor, the subject-matter of the suit being trees. There Sir W. Grant, sitting for the Lord Chancellor, granted the injunc- tion. The next case on this head is Thomas Oakley (A). The defendant there, having the right of taking stone for building and other purposes from a quarry on a certain part of the estate of the plaintiff, took stone for the like purposes on other parts of his estate. The plaintiff filed his bill for an injunction and an account. The defendant demurred, and the demurrer was overruled on the ground that the defendant was subtracting from the inheritance. In all these cases (except Smith V. Collyer), where the plaintiff was in possession, and the motion was made for an injunction to restrain the defend- ant who claimed under an adverse title, the injunction was granted. " Where, therefore, the plaintiff is in possession, and the person doing the acts complained of is an utter stranger, not claiming under color of right, the tendency of the court is not to grant an injunction, unless there are special circumst£!,nces, but to leave the plaintiff to his remedy at law, though where the acts tend to the destruction of the estate, the court will grant it. But where the party in possession seeks to restrain one who claims by adverse title, there the tendency will be to grant the injunction, at least where the acts done either did or might tend to the destruction of the estate." 5. There are two or three other cases on the subject, which Kindersley, V. C, did not mention. But the principle upon which they proceeded is in accordance with the general prin- ciples which he deduces from a survey of the cases. In Ryder V. Williams (J), an injunction was granted to restrain a person from pulling down posts and rails which the plaintiff had ih) 13 Ves. 236. (k) 18 Vee..l84. (0 17 Ves. 110. (/) 4 L. J. Ch. N. S. 55. 20 [305] * 293 INJUNCTIONS AGAINST TRESPASS. [CH. XVII. erected round a plantation. So also, in Clowes v. * 293 Beck (m), a trespasser * claiming under color of title was restrained from taking away stones and shingle from the sea-beach, so as to expose a mansion-house to the encroachment of the sea. So also, where a receiver appointed by the court was in possession, a man was restrained from trespassing under an alleged claim of right, pending the trial of the right (n). So also, in Hodgson v. Duce (o), a pauper defendant, whose real and personal estate had been vested, under an order of the Insolvent Debtor's Court, in an assignee in insolvency, was restrained from committing trespass against a man who had purchased from the assignee part of the prem- ises so vested in him, and from annoying his tenants, on the ground that the recovery of damages at law would. not be a sufficient remedy, and that the conduct of the defendant had been vexatious in no ordinary degree (^). 6. In Lowndes v. Bettle (c[), the plaintiff and his ancestors had been in possession of an estate for eighty years, and the defendant, claiming as heir-at-law, entered upon it, and exer- cised acts of ownership by cutting sods and felling timber, with the view, as he alleged, of prosecuting his claim as heir under the direction of the court. Kindersley, V. C, consider- ing the acts of the defendant to be against conscience, and that irremediable damage might result to the plaintiff in the event of his refuging to interfere, granted an interim injunc- tion, and afterwards made the injunction perpetual. 7. If the trespass does not amount to destructive trespass, but is a case of mere ordinary naked trespass, the court will not interfere, the courts of ordinary jurisdiction being compe- tent to deal with the matter (f). Thus, where a claimant to property had been nonsuited in ejectment, the court refused to restrain him from vexatiously distraining on or otherwise molesting the tenants (s). So also, where the owner of house- (m) 13 Bear. 347. (q) 33 L. J. Ch. 451. (n) Blanohaxd v. Cawthorn, 6 Sim. (r) Mogg v. Mogg, 2 Dick. 670; 155, 1 Coop. t. B. 113. See Grand Garstin u. Asplin, 1 Madd. 152; Jack- Junction Canal Co. v. Dimes, 2 Jur. son v. Stauliope, 15 L. J. Ch. 446. 1077. (s) Best W.Drake, 11 Ha. 369; but (o) 2 Jur. N. S. 1014. see Hodgson v. Duce, 2 Jur. N. S. (p) See also Att.-Gen. .,. Hallett, 16 1014. M. & W. 569. ■ [306] CH. XVII.J INJUNCTIONS AGAINST TRESPASS. * 295 property filed a bill for an injunction against a defend- ant who had been his * lessee, but had forfeited his * 294 lease, to restrain him from distraining on the tenants, a demurrer for want of equity was allowed (#). 8. Cutting turf is not such a destructive trespass as the court will, except under very special circumstances, restrain by injunction (m). 9. The jurisdiction of a court of equity in cases of trespass is in aid of the legal right. The court interferes on the assumption that the party who makes the application has the right which he asserts, but needs the interference of the court for the protection of the property from irreparable damage pending the trial of the right. If the right at law is clear, and the breach of that right is clear, and serious damage is likely to arise to the plaintiff if the defendant is allowed to proceed with what he is doiiig or threatens to do, or has given notice of doing, an injunction will be granted pending the trial of the right (a;). If the case is, in the opinion of the court, free from doubt, the court may interfere at once without put- ting the plaintiff to establish his legal right, and grant a per- petual injunction («/). But if the right at law is not clear, or the breach is doubtful, and no irreparable injury can arise to the plaintiff pending the trial of the right, the case resolves itself into a question of comparative convenience and incon- venience, whether the defendant will be more damnified by the injunction being granted, or the plaintiff by its being with- held (z). An act of trespass, not in itself amounting to serious damage, may, from its continuance, amount in the opinion of the court to trespass attended by irreparable damage (a) . * If the act complained of consists in the * 295 (() Aldis V. Fraser, 15 Beav. 220. (y), Gray v. Liverpool and Bury Rail- See Hanson v. Gardiner, 7 Ves. 308 ; way Co., 9 Beav. 391, 4 Ra. Ca. 235 ; Sandys v. Murray, 1 Ir. Eq. 29 ; Wrixon Lowndes v. Settle, 33 L. J. Cli. 451 ; V. Condran, ib. 381 ; Congleton v. supra, p. 209. Mitchell, 12 Ir. Bq. 34. (2) Brocklebank v. Whitehaven Junc- (m) Sandys v. Murray, 1 Ir. Eq. 29 ; tion Railway Co., 5 Ra. Ca. 373, 379; Wrixon v. Condran, ib. 380. See Dean Gordon v. Cheltenham Railway Co., 5 of Ely V. Warren, 2 Atk. 189. Beav. 229 ; Sparrow w. Oxford, Worces- (x) Clowes V. Beck, 13 Beav. 847 ; ter, and Wolverhampton Railway Co., North Union Railway Co. v. Bolton and 9 Ha. 436 ; supra, 209-211. Preston Railway Co., 3 Ra. Ca. 345; (a) Hopkins v. Caddick, 18 L. T. Barker v. North StaflTordshire Railway 236. Co., 2 De G. & Sm. 55 j supra, p. 209. [3071 * 296 INJUNCTIONS AGAINST TRESPASS. [CH. XVH. erection of works or buildings on the land of the plaintiff, an injunction may be had as long as the works or buildings are in an incomplete state (5) ; but if the works or build- ings have been completed, the court will not in general interfere, but will leave the plaintiff to his remedy at law by ejectment (c). If, however, the conduct of the defendant had been fraudulent, vexatious, or oppressive, and the trespass is of so serious a nature that the parties cannot be placed in the position in which they were before the acts of trespass were committed, without the interference of the court, the court will interpose, even though the act complained of has been completed. Thus, in Powell v. Aikin (i), the defendants were restrained from continuing to use air-courses and roads, which had been secretly and fraudulently made by the persons through whom they claimed title, through the minerals of the plaintiff. So also, in Bowser v. Maclean (e), the lessee of minerals in a copyhold manor was restrained, at the suit of a copyholder, from surreptitiously using a tramway through the subsoil of the plaintiff's land, for the- purpose of carrying along it coals dug beyond the limits, of the manor. 10. The principles upon which the court acts in restraining trespass on the part of companies or bodies of functionaries incorporated by act of Parliament, and having compulsory powers to take or enter lands, differ in some respects froni those upon which it acts in restraining trespass by individuals. A private person who applies for an injunction to restrain a public incorporated company or body of functionaries from en- tering illegally on his land, is not required to make out a case of destructive trespass or irreparable damage. The inability of private persons to contend with these powerful bodies which have often large sums of money at their disposal, and are often too prone to act in an arbitrary and oppressive manner, raises an equity for the prompt interference of the court to * 296 keep them * within the strict limits of their statutory (b) Farrow «. Vansittart, IJJa. Ca. v. Carroll, 11 Ir. Ch. 379; Perks v. 602. "Wycombe Railway Co., 3 Giff. 662; (c) Deere -v. Guest, 1 M. & G. 516. Llnd v. Isle of Wight Ferry Co., 7 L. See Moreland v. Richardson, 22 Beav. T. N. S. 416. 604; Carnochan v. Norwich and Spald- (d) 4 K. & J. 348. ing Railway Co., 26 Beav. 171 ; Doran (e) 2 D. F. & J. 415. [308] OH. XVII.] INJUNCTIONS AGAINST TRESPASS. * 297 powers, and prevent them from deviating in the smallest degree from the terms prescribed by the statute which gives them authority. If they enter upon a man's land without taking the steps required by the statute, the court will at once interfere. A man has a right to say that they shall not affect his land by stirring one step out of the exact limits prescribed by the statute. The principle upon which the court interferes in such cases is not so much the nature of the trespass as the necessity of keeping them within control (/). It is incum- bent on them to prove clearly and distinctly from the statute the existence of the power which they claim a right to exer- cise. If there is any doubt with regard to the extent of the power claimed by them, that doubt must undoubtedly be for the benefit of the land-owner, and should not be solved in a manner to give to the company any power that is not clearly and expressly defined in the statute (^). The court has not only jurisdiction to interfere to restrain a company from affect- ing a man's land by stirring out of the exact limits prescribed by the statute wliich gives them authority, but is almost bound to interfere Qi), and will, as a matter of course, interfere, un- less the damage is so slight that no injury has arisen or is likely to arise, or unless the injury, if any has arisen, is so small as to be hardly capable of being appreciated by dam- ages (i), or unless the remedy by damages at law is adequate and sufficient, or is, under the circumstances of the case, the proper remedy (Jc), or unless the trespass is one merely of a temporary nature (Z). In. a case * where a com- * 297 pany, acting bond fide, had taken possession of prop- (/) Kemp V. London and Brighton North Midland Railway Co., 1 Ra. Ca. Railway Co., 1 Ra. Ca. 495; Bell v. 154. Hull and Selby Railway Co., ib. 635; (i) Warden of Dover Harbor v. Frewin v. Lewis, 4 M. & C. 254 ; Web- South Eastern Railway Co., 9 Ha. 497 > ster V. South Eastern Railway Co., 1 Ware v. Regent's Canal Co., 3 D. & J. Sim. N. S. 272 ; Tawney v. Lynn and 229 ; Wandsworth Board of Works v. Ely Railway Co., 16 L. J. Ch. 282, 4 London and South Western Railway Ra. Ca. 619 ; Pinchin v. London and Co., 31 L. J. Ch. 854. Blackwall Railway Co., 5 D. M. & G. {k) Turner v. Blamire, 1 Drew. 409. 851; Sutton u. Mayor, &c., of Norwich, (I) Standish v. Mayor of Liverpool, 27 L. J. Ch. 739 ; Tinkler v. MetropoU- 1 Drew. 1. See 8 Vict. c. 20, ss. 32- tan Board of Works, 2 D. & J. 269. 42, as to the powers given to railway (g) Simpson v. South StaflTordshire companies to take temporary possession Railway Co., 34 L. J. Ch. 380, 387. of lands abutting on the intended rail- (A) River Dun Navigation Co. v. ■! way for certain purposes. [309] * 298 iNjaNCTioNS against trespass. [ch. xvii. erty by mistake, and the question at issue between the com- pany and the land-owner was only a question of value, the court would not interfere, there being no evidence to show any culpable negligence on the part of the company (m). Lord Romilly, M. B,., thought himself justified in taking into con- sideration in such a case the inconvenience which the public would be exposed to from granting the injunction (n). 11. In cases where the contest lies between two incorporated companies, the same principles apply as are applicable in ordi- nary cases (o). 12. In a suit against a company to restrain trespass, leave must be had from the court, after a winding-up order under 25 & 26 Vict. c. 89 has been obtained, to proceed with the suit (^). 13. If a company is in possession under a legal title, the court will not interfere at the suit of a person alleging an adverse legal title to restrain the company from continuing in possession (g') ; but if land has been taken by a company im- properly, or if the conduct of the company has been vexatious, unreasonable, or oppressive", the court may restrain them from continuing in possession until a proper compensation has been made (r). 14. If the act complained of affects the public interest, the remedy is by information at the suit of the Attorney- * 298 General (s). * But a private person may sue alone, even although the act complained of may aifect the public interest, if he can make out a case of special damage or can show that greater damage is caused to him thereby than is caused to the Queen's subjects in general (t). There may in (m) Wood V. Charing Cross Railway (r) Perks v. Wycombe Railway Co., Co., 33 BeaT. 290. 3 Giff. 662. (n) lb.; hut see infra. , (s) Att.-Gen. w. Cleaver, 18 Ves. 217 ; (o) North Union Railway Co. o. Bol- Att.-Gen. v. Forbes, 2 M. & C. 133 ; ton and Preston Railway Co., 3 Ra. Thorne v. Taw Vale Railway Co., 13 Ca. 346; Manchester, Sheffield, and Beav. 10; Att.-Gen. v. Sheffield Gas Lincolnglaire Railway Co. v. Great Co., 3 D. M. & G. 304; Vestry of Northern Railway Co., 9 Ha. 284. Bermondsey u. Brown, 1 L. R. Eq. 204 ; (p) Wyley w. Bxhall Coal Mining Co., infra, p. 334. 33 Bear. 538. (t) Semple v. London and Birming- (o) Webster v. South Eastern Rail- ham Railway Co., 9 Sim. 209 ; infra, p. way Co., 1 Sim. N. S. 272 ; Pell v. 334. • J ' i' Northampton and Banbury Junction Railway Co., 2 L. R. Ch. Ap. 100. [310] CH. XVII.] INJUNCTIONS AGAINST TRESPASS. * 299 such cases be both an information and a bill (m). The Me- tropolis Local Management Acts do not empower the commis- sioners or vestries named therein to maintain the suit except as relators (x). 15. A man who seeks the aid of the court to restrain tres- pass should show due diligence in making the application.. Whatever may be the original equity of his case, if a man- stands looking on while moneys are being expended by another,, upon the faith that no objection will be afterwards made to his enjoyment of the property upon which the expenditure has been made, he will lose his right to the interference of the court by injunction (2/). 16. In two cases before Lord Bldon, Agar's case (2), and Blakemore v. Glamorganshire Eailway Co. (a), his lordship considered that acts of Parliament incorporating public com- panies were to be viewed in the light of contracts made by the legislature on behalf of every person interested in any thing to be done under them. In the first of these cases he said^ " Where persons assume- to satisfy the legislature that a cer- tain sum is sufficient for the completion of a proposed under- taking, as a canal, if the owner of the estate through which the legislature has given to the speculators a right to carry the canal, can show that the persons so authorized are unable to complete their work, and is prompt in his application for relief, grounded on that fact, equity will not permit the farther prosecution of the undertaking." It may, however, be considered as established that the * language of Lord * 299 Bldon in Agar's case and Blakemore's case is some- what too extensive in its terms, and must be modified in accordance with the opinion of Alderson, B., in Lee v. Mil- ner (J). " These acts of Parliament," said Alderson, B., " have been called parliamentary bargains made with each of (u) Att.-Gen. v. Sheffield Gas Co., 3 Staffordshire Eailway Co., 5 Ea. Ca. D. M. & G. 304; Att.-Gen. v. United 401; Hopkins «. Great Northern Eail- Kingdom Telegraph Co., 30 Beav. 287 ; way Co., 11 L. T. 306 ; Wintle v. infra, p. 335. Bristol and South Wales Eailway Co., jx) VestryofBermondsey*. Brown, 10 W. E. 210; su;)ra, p. 201-205. 1 L. E. Eq. 204 ; see also supra, p. 207, (2) Coop. 77, cit. 1 Sw. 250. as to parties. (a) 1 M. & K. 164. (y) Gordon v. Cheltenham Eailway (6) 2 Y. & C. 618. Co., 5 Beav. 229; Barker v. North [311] *300 INJUNCTIONS AGAINST. TRESPASS. [CH. \SVII. the land-owners. Perhaps more correctly they ought to be treated as conditional powers given by Parlianaent to take the land of the different proprietors through whose estates the works are to proceed. Each land-owner, 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 undertakers and any one else. This I conceive to be the real view of the law by Lord Eldon in Blakemore's case (c). In Agar's case, one point, it was 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 said in the case be- fore referred to that a court of equity would probably grant an injunction, apd 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 contemplated by the act. For to take away any man's land where the whole work can never be performed is clearly injurious to him, and a substantial breach of the conditions 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, so far as regards the land of the complaining land-owner is exactly performed, any variation made at a distant point and with the consent of the land-owner there, and producing no real injury to the complaining land-owner, ought to be the ground for an injunction in a court of equity to be * 300 granted at his application." " In Agar's case," * said Lord Cottenham in Salmon v. Randall (ci), " I appre- hend Lord Eldon must have gone upon this ground, that where acts of Parliament impose certain severe burdens upon indi- viduals by interfering with their private rights and private prop- erty for the purpose of obtaining some great public good, if (c) See Doe v. Bristol and Exeter E. & B. 858 ; Ware v. Regent's Canal Railway Co., 6 M. & W. 320 ; York and Co., 3 D. & J. 217. North Midland KaUway Co. v. Reg., 1 (d) 3 ]M. & C. 439, 444. [312] , CH. XVII.J INJUNCTIONS AGAINST TRESPASS. * 301 the court sees that the undertaking cannot be completed, and therefore that the public cannot deriye that benefit which was to be the equivalent for the sacrifice by the individual, the court will protect the individual from being compelled to make the sacrifice under the circumstances, and until it appears that the public will derive the proposed benefit from it. It is im- possible to suppose Lord Eldon could have meant that after an act of Parliament has been passed, giving ^certain powers and authorizing a body of persons to carry on public works, those against whose rights such works are to be carried into effect are to come to this court and say, ' "We will undertake to prove that you cannot, with the money which you have in hand, carry those works into effect,' and that therefore and immediately in that state of circumstances the court is to in- terfere." Lord Cottenham accordingly would not restrain commissioners appointed under a local act for the improvement of a town from taking the steps prescribed by the act for taking possession of certain land, merely because there was an alle- gation in the bill that they had not the means of paying for the premises, and because they had not produced satisfactory evi- dence to show that they had the means. So also, in Ware v. Regent's Canal Co. (e), Lord Chelmsford refused an injunc- tion, though he admitted that the language of Lord Eldon appeared to sustain the proposition of the plaintiffs to its full extent. His lordship approved and adopted the language of Alderson, B., above cited, and added, " The words to his prejvr dice, in the judgment of Alderson, B., are emphatic, and mean not merely to his possible but to his actual prejudice " (/). Notwithstanding, therefore, the language of Lord Eldon in Agar's case and Blakemore's case, it may now be looked on as established, that a land-owner cannot maintain a suit to restrain a company from exercising their compulsory powers over his land on the ground either of the * resources of the * 301 company being insufficient for the completion of the iin- dertaking, or of a material variation being made or intended to be made in the construction of the works, unless he can prove to the satisfaction of the court that he will suffer actual (e) 3 D. & J. 217. ' (/) lb. 225. [818] * 302 INJUNCTIONS AGAINST TRESPASS. [CH. XTII. and material prejudice, either by the failure of the company to complete the undertaking, or by the variation, as the case may be (ff-). 17. Acts of Parliament are to be interpreted like contracts in general (A). The intention of the legislature must be gathered as far as possible from the words of the act as they stand («■). The words must be interpreted in their natural and ordinary sense. Pull grammatical effect should be given, if possible, to every word used. If that is not possible, an endeavor should be made to give a meaning to the intention of the legislature after a consideration of the whole lan- guage (^). If an enactment be expressed in clear, positive, and explicit terms, its operation and effect are not to be cut down and restricted by the more limited tenor and scope of the preamble. But if the words of the enacting clause are not so clear and explicit as to admit of but one clear and distinct meaning, it is proper to resort to the preamble for the resolu- tion of the doubt, and to put such construction on the enact- ment as will accord with the preamble (?). 18. Where a general act is incorporated with a special act, the general act must be looked at with reference to the powers conferred upon companies of dealing with the land when ac- quired, but the special act must be looked to for the purpose of ascertaining what is the contract between the land-owner and the company, and the power which the company has con- ferred upon it of taking the land of the land-owner (m). * 302 A special act * of Parliament creating rights or impos- ing special duties is not repealed by a subsequent gen- eral act which makes no reference to it (w). Nor are the powers conferred upon certain persons by a special act con- (g) Holyoake v. Shrewsbury and 143. See Dover Gas Co. u. Mayor of Birmingham Railway Co., 5 Ka. Ca. Dover, 7 D. M. & G. 545. 421; Wintle v. Bristol and South (l) Hughes t. Chester & Holyhead "Wales Union Railway Co., 10 W. R. Railway Co., 1 Dr. & Sm. 624. See 210- , „ . , Dover Gas-Ught Co. u. Mayor of Dover, (h) See mfra. 7 D. M. & 6. 545. (i) Att.-Gen. v. Corporation of Lon- (m) Simpson v. South Staflfordslnre don, 8 Beav. 286; Hughes v. Chester Water-works Co., 34 L. J. Ch. 387, per and Holyhead Railway Co., 1 Dr. & Lord Westbury. Sm-524. (n) Trustees of Birkenhead Docks (k) Hughes v. Chester and Holyhead v. Laird, 4 D. M. & G. 742 ; Fitzgerald Railway Co., 1 Dr. & Sm. 524 ; Re v. Champneys, 2 J. & H. 31. Sussex Peerage ease, 11 CI. & Fin. 86, [814] CH. XVII.J INJUNCTIONS AGAINST TRESPASS. * 303 trolled by a subsequent statute, giving to other persons incon- sistent powers in terms which, from their generality, would seem to overrule them (o). Powers to interfere with the rights and property of others will not be imported into an agreement, unless the court is able to collect, by necessary implication from the language of the instrument, that such was the inten- tion of the legislature (p). 19. Where persons are empowered by the legislature to take lands compulsorily for the purposes of an undertaking, they are the proper judges of what land they need. They may take as much land as they shall deem necessary for the proper construction of the works which they are authorized to make, and of the works incidental to the main purpose of the under- taking, provided they act lond fide ; but they cannot be allowed to exercise those powers for any purpose of a collateral kind, that is, for any purposes except those for which the legislature has invested them with extraordinary powers (g'). A company accordingly having power to take land may not take it for the purposes of another company which have not power to take it (r). The case is different where a public body, such as the corporation of a city, is intrusted by the legislature with the duty of making public improvements in the city. The power thus intrusted to it for such a purpose will not be subject, as in the other case, to so strict and restricted a construction (s). Although a company, having power to take land, may not take * it for the purpose of another company which * 303 has not power to take it, a company, which has legally taken land, may enter into an agreement with another com- pany for the joint use of it. The arrangement between the com- panies does not vitiate the title which the company has acquired to the land (<). If there is evidence to show that a company is taking land which is not bond fide required for the proper pur- (o) London and BlackwaU Railway 34 L. J. Ch. 387 ; Galloway v. Mayor, Co. V. Limehouse Board of Works, 3 &c., of London, 1 L. K. H. L. 34. K. & J. 123. (r) Wood v. Epsom and Leatherhead (p) Dawson v. Paver, 5 Ha. 415. Railway Co., 8 C. B. N. S. 731 ; Vane (o) Webb V. Manchester and Leeds v. Cockermouth and Darlington Eail- Eailway Co., 4 M. & C. 118 ; Stockton way Co., 13 W. E. 1015. and Darlington Railway Co. v. Brown, (s) Galloway v. Mayor, &c., of Lon- 9 H. L. 256 ; Richards v. Scarborough don, 1 L. R. H. L. 34. Market Co., 23 L. J. Ch. 110 ; Simpson («) Wood v. Epsom and Leatherhead u. South Staffordshire Water-works Co., Railway Co., 8 C. B. N. S. 731. [315] * 304 INJUNCTIONS AGAINST TRESPASS. [CH. XVII. poses of the undertaking, it is not enough that the engineer of the company may have made an affidavit that the land is or ■would be wanted for the purposes of the undertaking. The purposes must be specified so that the court may judge whether the land is bond fide required (u). If there is no groufld to suspect mala fides, the court may give credit to the testimony of the engineer, as to what would be a proper ex- ecution of the works (x). Whether land is necessary for the purposes of the undertaking is a question of fact for a jury («/)• 20. Where an act of Parliament enables a proprietor in a mineral district to make roads and railways over the lands of other persons from his mines to a canal, he is not bound to take the shortest practicable route, but may in the exercise of his judgment adopt a more circuitous route, provided he is acting hond fide and keeps within^ the provisions of the act (a). 21. The Lands Clauses Act, 8 & 9 Vict. c. 18, is usually incorporated with all acts giving companies power to take land. Where the company is a railway company, the Railways Clauses Consolidation Act, 8 & 9 Vict. c. 20, as well as the Lands Clauses Act, is generally incorporated with the special act in all cases where the special act has been obtained since the enactment of the two general acts. These two acts, how- ever, do not interfere with private contracts. They were in- tended only to apply where the parties have omitted, or are unable, or could not be induced to determine their * 304 rights by special agreement, and will not be * allowed to override or control the provisions of a deed deliber- ately executed for the purpose of determining the rights of parties and in which they are not referred to (a). If the dealings between a land-owner and a company amount to a (u) Mower v. London, Brighton, and and Leatherhead Railway Co., 8 C. B. South Coast Railway Co., 2 Dr. & Sm. N. S. 731. 330. See Lund v. 'Midland Railway {z) Richards v. Richards, Jolm. 255. Co., 34 L. J. Ch. 276. (a) Sanderson v. Cockermouth and (x) Selby v. Colne Valley and Hal- Workington Railway Co., 19 L. J. Ch. stead Junction Railway Co., 10 W. R. 503 ; Clarke v. Manchester, Sheffield, 661. and Lincolnshire Railway Co., 1 J. & (y) Doe V. North Staffordshire Rail- H. 631 ; Newton v. MetropoUtan Rail way Co.', 16 Q. B. 526 ; Wood v. Epsom way Co., 1 Dr. & Sm. 583. [316] CH. XVII.] LANDS CLAUSES ACT. * 305 contract, the case is withdrawn from the operation of the statute (6) . 22. All companies incorporating these two acts with their own special act are bound to adhere strictly to the powers of taking land prescribed by these acts, and to proceed only in the mode and with the formalities required by them. The attempt to take or enter upon lands otherwise than in accord- ance with the mode pointed out by these acts, except in so far as they may be modified by the special act incorporating the company, is a trespass, and will be restrained by injunc- tion (c) . 23. By the 16th clause of 8 & 9 Vict. c. 18, the Lands Clauses Act, the compulsory powers cannot be put in force, unless the whole of the estimated capital of the company has been subscribed by them under a contract ; and by clause 17 a certificate from two justices that the whole capital has been subscribed is sufficient evidence thereof. These clauses do not apply to the case of a branch railway made by an already existing company (cZ). 24. By the 18th clause a company, before taking or entering upon lands which they are authorized to take, must serve upon the land-owner or persons interested therein, or enabled by the act to sell and convey the same, a notice to treat, specifying the land which they require (e). Notice to treat must be served on the tenant in possession (/), and upon tenants who have an * interest in the land (^). *305 If after notice to treat has been served upon a tenant the tenancy expires, and another tenant enters into possession, notice to treat should be served on him (A). Notice upon the Y (6) Newton v. Metropolitan Railway (d) Weld v. South Western Railway Co., 1 Dr. & Sm. 583. See Edinburgii Co., 32 Beav. 340. and Glasgow Railway Co. v. Campbell, (e) See Martin v. London, Chatham, i Macq. 570. and Dover Railway Co., 1 L. R. Ch. (c) Birley v. Constables, &c., of App. 501. See, as to construction of Chorlton-upon-Medlock, 3 Beav. 503 ; Lands Clauses Act, Reg. v. Lord Mayor Fooks V. Wilts, Somerset, and Wey- of London, 2 L. R. Q. B. 292. mouth Railway Co., 5 Ha. 199. See (/) Carter u. Great Eastern Railway also^ Manchester, Sheffield, &c.. Rail- Co., 9 Jur. N. S. 618. way Co. V. Great Northern Railway (g) Rogers u. Dock Company of Hull, Co., 9 Ha. 284 ; Stone v. Commercial 34 L. J. Ch. 165. Railway Co., 4 M. &C. 122; Schwinge (A) Carter u. Great Eastern Railway V. London and Blackwall Railway Co., Co., 9 Jur. N. S. 618. 3 Sm. & G. 30. [317] * 306 INJUNCTIONS AGAINST TRESPASS. [CH. XVII. next friend of an infant plaintiff and not on his guardian as required by the special act is insufficient (i) . If the lands are in the possession of a receiver, or of the committee of a lunatic appointed by the court of chancery, the company should make a special application to the court. If they proceed, without the sanction of the court, to enforce the statutory powers, an injunction may be obtained to restrain them (/). 25. The notice to treat should state accurately the quantity and situation of the land required (A). Lands different in respect of boundaries from those included in the notice cannot be included in the precept to the sheriff to summon an assess- ing jury (^). A plan is generally annexed to the notice to treat. If any mistake is made on the face of the plan, the company will be unable to enter upon any land which may be omitted (jm). Notice that land is wanted for the purposes of a railway is sufficient. The notice need not state that the land is wanted for the purposes of a station (n). 26. A company is not bound to comprise the whole of the land, which they may require, in the first notice, but may from time to time, until the compulsory powers expire, serve fresh notices to the same land-owner for taking any additional land which may be requisite for the works (o) . * 306 27. * After notice to treat once given neither party can get rid of the obligation. The relative situation of vendor and purchaser is to a certain extent, and for certain purposes, created by giving the notice Qp). The land-owner to whom the notice is given (§'), and the company giving the (i) Earl of Harrington v. Metropoli- (o) Stamps v. Birmingham and Stour tan Railway Co., 13 L. T. N. S. 658. Valley Railway Co., 2 Ph. 673 ; Simp- (/) Re Taylor, 6 Ra. Ca. 741 ; Tink son v. Lancaster and Carlisle Railway V. Rundle, 10 Beav. 318 ; Richards v. Co., 15 Sim. 580, 4 Ra. Ca. 627 ; Sadd Richards, John. 255. v. Maldon and Braintree Railway Co., 6 (k) Stone V. Commercial Railway Exch. 143 ; Flower v. London, Bright- Co., 4 M, & C. 118. on, &G., Railway Co., 2 Dr. & Sm. il) lb. 330. See 26 & 27 Vict. c. 92, s. 8. (m) Kemp v. London, Brighton, &c., (p) Tawney v. Lynn and Ely Rail- Railway Co., 1 Ra. Ca. 495. See, how- way Co., 4 Ra. Ca. 619, 16 L. J. Ch. ever, as to the correction of mistakes in 282 ; Marquis of Salisbury o. Great the plans and books of reference of a Northern Railway Co., 17 Q. B. 840; railway company, 8 Vict. c. 20, s. 7 ; Adams v. London and Blackwall Rail- Kemp V. West End, &c., Railway Co., way Co., 2 Mac. & G. 118 ; Haynes v. 1 K. & J. 689 ; Taylor v. Clemson, 2 Q. Haynes, 1 Dr. & Sm. 426. B. 978. (q) Metropolitan Railway Co. v. in) Wood V. Epsom and Leatherhead Wodehouse, 34 L. J. Ch. 297. Railway Co., 8 C. B. N. S. 731. [318] CH. XVII.] LANDS CLAUSES ACT. * 307 notice, are equally bound (r). The notice cannot be recalled or varied without the consent of the land-owner (s). It is no answer in general to say that there are no funds to go on with the undertaking (f). But commissioners appointed for a public purpose may recede from a notice to treat, on the ground of a deficiency of funds (w). Notice to treat will be considered as abandoned if there is great delay in proceeding under it (a;). When the notice to treat is met by a counter- notice, under the 92d clause of the act, requiring the company to take the whole of the property, the company may recede from, the notice and refuse to take any part («/). After notice under the 18th clause, and a counter-notice under the 92d clause, it is not necessary that there should be a second formal notice under the 18th clause before summoning a jury under the 23d clause, but under the 21st clause the company must give a reasonable opportunity to the land-owner to agree with them before causing a jury to be summoned (s). Where a land-owner has waived the service of notice, he cannot take an objection for want of it (a). 28. Inasmuch as the act applies only to corporeal heredita- ments, the 18th clause does not apply to easements (5). It is not * necessary to serve the owner of a mere ease- * 307 ment, as a way-leave over the property (c). 29. There has been much difference of opinion whether, after the service of notice to treat, the land-owner , and the company are brought within the ordinary jurisdiction of the court as to the specific performance of contracts. After an elaborate review of all the authorities, Kindersley, Y. C, held that, though to a certain extent and for certain purposes, the notice to treat places the parties in the relation of vendor and (r) Sparrow v. Oxford, "Worcester, (y) Eeg. v. London and South West- and Wolverhampton Railway Co., 9 em Railway Co., 12 Q. B. 775, 5 Ra. Ha. 436. Ca. 669 ; King v. Wycomhe RaUway (s) Tawney v. Lynn and Ely Rail- Co., 28 Bear. 104. way Co., 4 Ra. Ca. 619, 16 L. J. Ch. (z) Schwinge v. London and Black- 282. wall Railway Co., 3 Sm. & G. 30. (t) Rex V. Hungerford Market Co., {a) Rex v. South Holland Drainage, 4 B. & Ad. 327 ; Reg. v. Commission- 8 A. & E. 429. ers of Woods and Forests, 15 Q. B. 773. _ {b) Pinchin w J^qndon and Blackwall (m) Reg. V. Com and Forests, ib. {x) Hedges v. IV! Co., 28 Beav. 109. (m) Reg. V. Commissioners of Woods Railway Co., 5 D. M. & G. 862. and Forests, ib. (c) Thicknesse v. Lancaster Canal {x) Hedges v. Metropolitan Railway Co., 4 M. & W. 472. [319] * 308 INJUNCTIONS AGAINST TRESPASS. [CH. XVIJ. purchaser, and involves some of the consequences which &ow from actual contract, it does not amount to a contract which a court of equity will enforce upon a bill for specific perform- ance, even when filed by a land-owner against the company, still less that it constitutes a contract by the land-owner to sell his land {d). " The intention of the legislature," he said (e), " was not to create equitable rights or interests, but to give legal rights and impose legal obligations, such rights and obli- gations to be asserted and enforced by legal proceedings pre- scribed in the act " (/) . But a notice to treat, followed by the subsequent fixing by arbitration of the purchase and com- pensation money, does create a contract enforceable at the suit of the vendor (^). 30. By the 84th clause the promoters of an undertaking are forbidden from taking possession of lands until after payment of the purchase-moneys in the mode prescribed in the act, provided always that they may, upon a certain notice therein 'Specified, enter upon lands for the purpose of surveying the ground or setting out the line (A). The making a tunnel under a highway, without disturbing the surface, is an entry upon land within the clause («'). A company will be restrained from entering upon land until the moneys awarded have been paid or deposited, as required by the clause (A). The * 308 clause will not, however, be * extended to enable a land-owner to take advantage of the necessity which a company has for speedy occupation, and by reason of some accidental slip extort from the company a larger sum than the property is fairly worth (Z). When a company enters upon land for the purposes of making a survey without giving the notice required by the clause, they may be restrained (m). 31. By the 85th clause, where a company is desirous of taking possession before any agreement has been entered into, (d) Haynes v. Haynes, 1 Dr. & Sm. Railway Co., 1 Exch. 723, 5 Ea. Ca. 426, 444. 552. U) lb. 436. Ik) Lee v. Milner, 2 Y. & C. 617. (/) Re Battersea Park Act ; Re Ar- [l) Wood v. Charing Cross Railway nold, 32 Bear, 591. Co., 33 Beav. 290. {g) Mason v. Stokes Bay Pier and (m) Fooks v. Wilts, Somerset, and Railway Co., 32 L. J. Cli. 110. Weymouth Railway Co., 5 Ha. 199, 4 (A) See Rogers v. Dock Company at Ra. Ca. 210 ; but see Standish v. Mayor Hull, 34 L. J. Ch. 165. of Liverpool, 1 Drew. 1. (i) Ramsden v. Manchester, &c., [320] CH. XVII.J LANDS CLAUSES ACT. * 309 award made or verdict given, it is authorized to take posses- sion upon payment into the bank of the sum claimed by any party, who shall not consent, or such as shall be determined by a surveyor, appointed by two justices, to be the value of the property, and giving a bond with two sureties for payment of the purchase-moneys, and compensation to be ascertained under the provisions of the act. It is incumbent on those who seek to avail themselves of the provisions of the clause to show clearly and satisfactorily that they have fulfilled its conditions and complied with its requisitions (ot). Actual payment is necessary before entry (o). Persons who proceed under the clause cannot dispense with the notice to treat con- tained in the 18th clause (p) ; but they need not give notice to the land-owner of their intention to make the deposit and proceed under the provisions of the clause (9). Where there has been a special contract with respect to the- purchase of land, the provisions of the clause do not apply. By the con- tract the matter is withdrawn from the operation of the act. A company cannot enter upon land under the provisions of the clause on payment of the money into the bank (r). 32. * If the first bond be informal or defective, a * 309 second may be given. The court will not, after a valid bond has been substituted, interfere on the ground that the original possession taken under the defective bond is not a taking possession under the act. An injunction which had been granted on the ground of the informality of the bond was held by Lord Cottenham to have been rightly dissolved upon the substitution of a formal bond and the deposit of the sum claimed by the plaintiff (s). The condition of the bond to be given should adopt the very terms of the statute (<). A bond, ()!) Barker v. North Staffordihire EaUway Co., 2 Mac. & G. 118, 6 Ea. Eailway Co., 2 De G. & S. 55, 5 Ha. Ca. 282. Ca. 401. (?) Bridges v. Wilts and Somerset (0) Armstrong v. Waterford and Eailway Co., 4 Ea. Ca. 622, 16 L. J. Limerick Eailway Co., 10 Ir. Eq. 60. Ch. 335. Money paid into bank, under sec. 85, is (r) Newton v. Metropolitan Eailway only a security for what shall be found Co., 1 Dr. & Sm. 587. upon inquiry to be the value of the . (s) Willey v. South Eastern Eailway interest taken. Martin v. London, Co., 1 Mac. & G. 58, 6 Ea. Ca. 100. Chatham, and Dover Eailway Co., 1 See, also, Williams v. South Wales L. E. Cli. Ap. 501. Eailway Co., 8 De G. & S. 354. (p) Adams v. London and Blackwall (t) Hoskins v. Philipps, 3 Exch. 168 21 [321] ' ' * 310 INJUNCTIONS AGAINST TRESPASS. [CH. XTII. accordingly, conditioned not for payment absolutely, but on de- mand, is invalid (m). So, also, is a bond conditioned for pay- ment "at any time hereafter " (a;) . A bond conditioned for payment to land-owners jointly, where they are tenants in com- mon, is bad Qy~). The b^nd should be given and the deposit made in respect of all the land described in the notice to treat (g). 33. Two sureties are required to the bond as well where the bond is given by a corporation as where it is given by an indi- vidual (a). The sureties may be appointed without notice to the land-owner (6). They should be approved by two justices^ if the parties differ (c). 34. A company ought not to appoint as surveyor a person who has been previously in their employment ; but the * 310 appointment * would not necessarily be invalid (d). If the surveyor has made a valuation in. such a way as to enable him to do it fairly, the court will not disturb the valua- tion ; but if it be not done in such a way, the court will inter- fere. The valuation of a house must not be made upon the mere inspection of the exterior (e). 35. The proceedings under the clause were held not to be invalid, although the money appeared to have been deposited two days before the date of the valuation (/). 36. The clause applies only to lands taken, and not to lands injuriously affected by the works (^). 5 Ea. Ca. 560 ; Poynder v. Great North- Weymouth Railway Co., 16 L. J. Ch. ern Railway Co., 2 Ph. 330, 6 Ra. Ca. 335, 4 Ea. Ca. 622 ; Langham v. Great 202 ; Barker v. North Stafifordshire Northern Railway Co., 1 De G. & S. Railway Co., 2 De G. & S. 55, 5 Ra. 486, 5 Ra. Ca. 263 ; Poynder v. Great Ca. 401 ; Dakin v. London and North Northern Railway Co., 16 Sim. 3, 5 Western Eailway Co., 3 De G. & S. Ra. Ca. 196. 414 ; Willey v. South Eastern Railway (c) Bridges v. Wilts, Somerset, and Co., 1 Mac. & G. 58, 6 Ra. Ca. 100. Weymouth Railway Co., 16 L. J. Ch. (u) Langham v. Great Northern 335, 4 Ra. Ca. 623. Railway Co., 1 De G. & S. 486. (d) Langham v. Great Northern (x) Cotter V. Metropolitan Railway Railway Co., IDeG. &S.486; Barker Co., 10 Jur. N. S. 1014. v. North StaflFordshire Railway Co., 3 (y) Langham y. Great Northern Rail- De G. cSb S. 55. way Co., 1 De G. & S. 486. See, also, (e) Cotter v. Metropolitan Railway Daubney v. Manchester, &c.. Railway Co., 10 Jur. N. S. 1014. See order, Co., 10 L. T. 288. ib. (z) Barker v. North Staffordshire (/) Stamps w. Birmingham and Stour Railway Co., 2 De G. & S. 65 ; Giles v. Valley Railway Co., 7 Ha. 251. London, Chatham, and Dover Railway (g) Button v. London and South Co., 1 Dr. & Sm. 406. Western Railway Co., 7 Ha. 262; (a) Barker v. North Staffordsliire Lister v. Lobley, 7 A. & E. 124; In- Railway Co., 2 De G. & S. 55. nocent v. North Midland Railway Co., (h) Bridges v. Wilts, Somerset, and 1 Ra. Ca. 242. [322] GH. XVII.] LANDS CLAUSES ACT. * 311 37. The diversion of a stream is " a taking " within the meaning of the clause, the whole act having been incorporated with the Water-works Clauses Act, 10 & 11 Vict. c. 17. A cor- poration were accordingly restrained from making the diversion until compensation had been paid, or a bond given, as required by the clause (A). 38. Possession should not be taken by a company until a settlement has been come to with all parties interested. The taking possession after a settlement with the tenants in posses- sion only is erroneous, and contrary to the provisions of the act (t). In cases of the sort, the court will usually, on the motion for an injunction, order it to stand over upon the terms of the company undertaking to lodge the money, and giving the usual bond under this section of the act (A;). 39. * Persons who take lands which they are aiithor- * 311 ized to take, with the consent of owners or occupiers, cannot afterwards be treated as trespassers (I'). Where a rail- way company had complied with the provisions of the clause, and had entered and taken land within the prescribed period for exercising the compulsory powers, their continuance in possession after th6 prescribed period without having the com- pensation assessed and the land conveyed to them, is not un- lawful (ot). 40. Whatever objections are made on the ground that the proceedings of a company are irregular, a land-owner who goes into equity to complain of the insufficiency of the bond, de- posit, or other proceedings, under the statute, should state the whole of his first case in the first instance. He cannot in a later stage of the proceedings set up a new equity (n). {h) Ferrand v. Corporation of Brad- v. Waterford and Limerick Eailway ford, 21 Bear. 412. Co., 10 Ir. Eg. 60 ; Carter v. Great («') Inge V. Birmingham, Wolver- Eastern Railway Co., 9 Jur. N. S. 618. hampton, and Stour Valley Railway See Perks v. Great Wycombe Railway Co., 3 D. M. & G. 666; Alston v. Co., 3 Giff. 662. Eastern Counties Railway Co., 1 Jur. {1} Doe v. North Staffordshire Eail- N. S. 1009; Ranken «. East and West way Co., 16 Q. B. 526; Knapp v. India Docks Co., 12 Beav. 298 ; Mar- London, Chatham, and Dover Railway tin V. London, Chatham, and Dover Co., 2 H & C. 212. Railway Co., 1 L. R. Ch. App. 501. (/«) Doe v. North Staffordshire Rail- See Perks V. Great Wycombe Railway way Co., 16 Q. B. 526. Co., 3 Giff. 662. (n) Barker v. North Staffordshire (i) Alston V. Eastern Counties Rail- Railway Co., 2 De G. & S. 56. way Co., 1 Our. N. S. 1009 ; Armstrong [323] * 312 INJUNCTIONS AGAINST TRESPASS. [CH. XTII. 41. Provision is made in several clauses of the act for the manner in which, in cases of dispute, compensation shall be assessed for the interest in lands which the party is enabled to sell, or for any damage that may be sustained by him by rea- son of the execution of the works. In estimating the compen- sation, account must be had, not only of the value of the land to be piirchased or taken, but also of the damage to be sus- tained by the owner by reason of the severing of the land taken from the other land of such owner, or otherwise injuri- ously affecting such other land by the exercise of the parlia- mentary powers (o). 42. The 68th clause further provides, that if any party shall be entitled to any compensation in respect of any lands or any interest therein, which shall have been taken for, or injuriously affected by, the execution of the works, or for which the pro- moters of the undertaking shall not have made satisfaction, the compensation shall be assessed in the mode therein pre- scribed. The clause refers to the taking of land as * 312 authorized by the * 85th clause, and to land injuriously affected, where no adjoining lands of the same owner have been taken (^). 43. By the 92d clause it is enacted that "no party shall at any time be required to sell or convey to the promoters of the undertaking a part only of any house, or other building, or manufactory, if such party be willing and able to sell and con- vey the whole thereof." Owners under disability may avail themselves of the provisions of the clause (c[). The clause applies, although the land-owner has only a leasehold inter- est (r), and holds the property in question under different demises (s). An owner who has been served with notice by a company to take part of his premises may, under the clause, refuse to sell less than the whole thereof ; but he cannot by (o) South Wales Railway Co. v. way Co., 5 Exch. 475 ; Perks v. Great Eichards, 18 L. J. Q. B. 310 ; Manning "Wycombe Eailway Co., 3 Giff. 662. V. Eastern Counties Railway Co., 12 (q) St. Thomas' Hospital w. Charing M. & W. 237; Grand Junction Railway Cross Railway Co., IJ. & H. 406. Co. V. White, 2 Ra. Ca. 569 ; Re Duke (r) Pulling v. London, Chatham, and of Beaufort, 6 Jur. N. S. 979. DoTer Railway Co., 33 L. J. Ch. 505. (p) Doe V. North Staffordshire Rail- (s) Macgregor v. Metropolitan Rail- way Co., 16 Q. B. 526 ; Burkinshaw v. way Co., 14 L. T. N. S. 354. Birmingham and Grand Junction Rail- [324] CH. SVII.] LANDS CLAUSES ACT. * 313 reason of such notice require that the whole be taken. The company may, on his refusal to sell less than the whole, aban- don their notice, and refuse to take any part (i). The notice to treat is not reserved by the owner subsequently withdraw- ing his counter-notice on the company, requiring' them to take the whole of his premises (u). The giving a counter-notice, under the clause, creates an equity against the land-owner, whether the original notice be valid or not. The court will not interfere to protect him, even after the compulsory powers have expired, except upon terms putting him to sell and con- vey the property which he has, by his counter-notice, offered to sell («). A land-owner who did not give tlie counter-notice requiring the company to take the whole of his premises, until after the refusal of the company to give him what he asked for the part comprised in the notice, is not precluded from availing himself of the provisions of the clause (x). Where a company is required by the land-owner to take * the whole of his premises, under the provisions * 313 of the clause the amount to be secured by deposit and bond, under s. 85, before taking possession, is the value of the whole of the premises, and not of the portion actually required by the company (j^). The provisions of the clause apply, although the land may not fall within the limits of devia- tion (sr). 44. Tlie word " house " in the clause means all that would pass under the grant of a house in a conveyance, and will in- clude the curtilage and garden (a). The word includes only (0 Eeg. V. London and South West- 2 Dr. & Sm. 603 ; Cotter v. Metropoli- em Railway Co., 12 Q. B. 775 ; King tan Railway Co., 10 Jur. N. S. 1014. V. Wycombe Railway Co., 28 Beav. (2) St. Thomas' Hospital v. Charing 104. Cross Railway Co., IJ. & H. 400. (m) Ex parte Quicke, 12 L. T. N. S. (a) Grosvenor v. Hampstead Junc- 580. tion Railway Co., 1 D. & J. 446; («) Pinchin v. London and Blackwall Hewson v. London and South Western Railway Co., 5 D. M. & G. 851. Railway Co., 8 W. R. 467 ; St. (x) Gardner v. Charing Cross Rail- Thomas' Hospital v. Charing Cross way Co., 2 J. & H. 248. Railway Co., 1 J. & H. 400 ; Cole v. {y) Giles v. London, Chatham, and West End and Crystal Palace Railway ' Dover Railway Co., 1 Dr. & Sm. 406; Co., 27 Beav. 242; King v. Wycombe Gardner v. Charing Cross Railway Co., Railway Co., 28 Beav. 105 ; Pulling v. 2 J. & H. 258 ; Dadson v. East Kent London, Chatham, and Dover Railway Railway Co., 7 Jur. N. S. 941 ; Gibson Co., 33 L. J. Ch. 505. V. Hammersmith and City Railway Co., [325] * 314 INJUNCTIONS AGAINST TRESPASS. [CH. XVII. what is necessary for the convenient use and occupation of the house, and not also what is subsidiary to, or necessary for, the convenience of the occupant of the liouse (i) : as, for instance, a field in front of the house, and separated from the house by a public road, and used as a pleasure-ground (c). The word " house " will apply to unfinished houses (d!). A company will not, it would appear, be compelled to take less than the whole property constituting the house (e). 45. What is a " manufactory " within the meaning of the clause is in each case a question of fact. In Barker v. North Staffordshire Railway Company (/), two brine-pits were con- sidered to be part of certain salt-works within the meaning of the clause. In Sparrow v. Oxford, Worcester, and Wolver- hampton Railway Company (^), land included in the * 314 same wall with iron * and tin-plate works, but separated from them by a private road, over which a stranger had a right of way, ai^d which was used for the deposit of ashes from the works, was held to be part of the manufactory. In another case cottages used as warehouses in connection with a manufactory situate on the opposite side of a public road, were held to be a part of the manufactory (A). In Reddin v. Met- ropolitan Board of Works (i); on the other hand, where the plaintiff carried on the business of a dust-contractor, which consists in collecting and sorting dust-heaps, and also, as a subsidiary business, worked up some of the components into plaster-powder and manure, the promoters of the undertaking having served a notice to take a " tot-shop " which was used only in connection with the sorting business, it was held that they could not be compelled to take the whole of the premises. The word^ " manufactory " includes trade fixtures (y ). (6) Steele o. Midland Kailway Co., (e) Pulling v. London, Chatham, and 1 L. R. Ch. Ap. 275. Dover Railway Co., 33 L. J. Ch. 505. (c) Fergusson v. London, Brighton, (/) 2 De G. & S. 55. and South Coast Railway Co., 33 Bear. o) 9 Ha. 436, 2 D. M. & G. 94. 103, 33 L. J. Ch. 29 ; Pulling v. London, (A) Spackman v. Great Western Rail- Chatham, and Dover Railway Co., 33 way Co., 1 Jur. N. S. 790. L. J. Ch. 505. See Chambers o. Lon- [i] 81 L. J. Ch. 660. don, Chatham, and Dover Railway Co., (j ) Gibson v. Hammersmith and 1 N. R. 517. City Railway Co., 2 Dr. & Sm. 603; (rf) Alexander v. Crystal Palace Cotter v. Metropolitan Railway Co., 10 Railway Co., 30 Bear. 556. Jur. N. S. 1014. [326] CH. XVII.] LANDS CLAUSES ACT. * 315 46. The following cases were decided on provisions some- what similar to this clause in earlier statutes (Jc). 47. By the 93d clause owners may require a company to purchase small portions of intersected land. The expression " such land " in the 94th clause is not restricted to intersected lands situate in a town, but applies to all intersected lands whether so situate or not (Z). 48. The promoters must satisfy mortgagees before taking possession. Where a company had entered into possession under the 85th clause, without making any provision for com- pensation for the mortgagees, the court restrained them from proceeding with their works, until the value of the interest of the mortgagees had been ascertained and secured (m). 49. Where the occupier of lands is a tenant at will, or from year * to year, his interest is to be assessed * 315 summarily before iwo magistrates, and upon payment of the amount he must deliver up possession (n). If any lessee, on being required to do so, does not produce his lease or grant, or give the best evidence thereof, he may be treated as a tenant from year to year, and be dealt with accordingly under the provisions of the last section (o). The clause does not apply to a person who produces a lease which, though void at law, is equivalent in equity to a lease for a greater interest than a yearly tenancy (^). 50. Unless otherwise provided for in the special act, the powers for the compulsory purchase or taking of lands shall not be exercised after the expiration of three years from the passing of the special act (g). In a case, indeed, where the special act contained no limitation of time for the exercise of the compulsory powers of purchase, it was held that the period limited by the general act was applicable (r). (Tc) Stone v. Commercial Railway Co., 1 L. E. Ch. App. 501. See Rogers Co., 4 M. & C. 122 ; Reg. v. London v. Dock Company of Hull, 34 L. J. Ch. and Greenwich Railway Co., 3 Q. B. 165. 166, 3 Ra. Ca. 138 ; Walker v. London (n) Sec. 121. and Blackwall Railway Co., 3 Q. B. (o) Sec. 122. 744. (p) Sweetman v. MetropoUtan Rail- (/) Eastern Counties Railway Co. v. way Co., 1 H. & M. 543. Marriage, 9 H. L. 32. (?) Sec. 123. (m) Ranken v. East and West India (r) Seymour v. London and South Dock Co., 12 Beav. 298; Martin o. Western Railway Co., 5 Jur. N. S. London, Chatham, and Dover Railway 753. [327] * 316 INJUNCTIONS AGAINST TRESPASS. [CH. XTII. 61. If tlie notice to take lands has been given within the period prescribed by the clause, any thing which remains to be done may be done subsequently, although the purchase may not be completed before the time limited by the clause (s). So, also, if a company give notice that the lands are required, and afterwards, even a day before the compulsory powers expire, give a bond and deposit money, in pursuance of the 85th clause, neither their power to purchase nor their power to enter upon the land is gone by the expiration of the prescribed period (t), the principle being that as soon as the company have given notice to take land they have exercised their powers of compulsory purchase, and that all the subsequent steps are not an exercise of the powers of compulsory purchase, but of powers which are intended to carry that purchase into * 316 effect (u). Where the * promoters of a company gave notice a few days before the expiration of their compulsory powers to take part of a manufactory, and a coun- ter-notice to take the whole was served on them after the expi- ration of that period, the court would not restrain them from taking steps to complete the purchase at the end of ten months after the expiration of their powers (?/). 52. More delay on the part of the promoters after service of the notice does not raise any equity, because the land-owner has a remedy by mandamus, compelling the promoters to pro- ceed (s). But if notice be given by a company immediately before the expiration of their compulsory powers, and there is great delay in completing the purchase, and the conduct of the promoters of the company is such as to lead the land-owner into the belief that the undertaking has been abandoned, they cannot be afterwards permitted to insist upon the notice (a). (s) Eeg. V. Birmingham and Oxford and Wolverhampton Eailway Co., 9 Railway Co., 15 Q. B. 634. Ha. 436. (() Marquis of Salisbury v. Great (y) Pinohin w. London and Blackwall Northern Eailway Co., 17 Q. B. 840; Railway Co., 5 D. M. & G. 851. See Sparrow v. Oxford, Worcester, and Schwinge v. London and Blackwall WolTerhamptou Railway Co., 9 Ha. Railway, 3 De G. & S. 30. 436. See Doe v. ISforth Staffordshire {z) Reg. v. Birmingham and Oxford Railway Co., 16 Q. B. 526; Worsley Junction Railway Co., 15 Q.. B. 634; V. South Devon Railway Co., ib. Pindiin «. London and Blackwall' Rail- 639. way Co., 5 D. M. & G. 864. (u) Sparrow v. Oxford, Worcester, (a) Hedges v. Metropolitan Railway Co., 28 Beav. 109. [328] CH. XVII.] RAILWAYS CLAUSES CONSOLIDATION ACT. * 317 53. By the 124th clause provision is made for the purchase by promoters of companies of interests in lands, the purchase of which has been omitted by mistake (6). 54. Where the undertaking is a railway company, the special act usually enacts that it shall be lawful for the promoters of the undertaking to make and maintain the railway and works in the line and upon the land delineated in the plans and de- scribed in tlie books of reference, and to enter upon and take, and use such of the said land as shall be necessary for such purpose. , 55. Plans deposited in compliance with the standing orders prior to the introduction of a bill into Parliament do not form any part of tlie act, except in so far as they may have been in- corporated within its provisions ; nor can they be other- wise referred to for *the construction of the act (c). *317 The plans are only binding to the extent of determin- ing the datum line and the line of railway measured with reference to that datum line, but not with reference to the sur- face levels, unless the act incorporates them within its provi- sion (cZ). The particular works intended to be made need not appear on the deposited plan. It is enough that the land required sliall be within the limits of deviation (e). 56. By the Railways Clauses Consolidation Act, 8 Vict. c. 20, ss. 11-15, a railway company may deviate a hundred yards from the datum line. The expression " deviation " is to be taken with reference to the line of railway only ; that is, the line of railway actually laid down shall not deviate more (S) See Hyde v. Mayor of Manches- Western Railway Co., 11 Jur. 28 ; ter, 5 De G. & S. 249, affS. ib. 264 ; Doe Ware v. Regent's Canal Co., 3 D. & V. Mayor of Manchester, 12 C. B. 474 ; J. 212. Marquis of Salisbury v. Great Northern (d) North British Railway Co. v. Railway Co., 5 C. B. N. S. 174; Jolly Todd, 12 01. & Fin. 722; Beardmer v. V. Wimbledon and Dorking Railway London and North Western Railway Co., 1 B. & S. 817 ; Martin v. London, Co., 1 Mac. & G. 112, 1 H. & Tw. 161, Chatham, and Dover Railway Co., 1 5 Ra. Ca. 728 ; Ware v. Regent's Canal L. R. Ch. Ap. 501. Co., 3 D. & J. 212. •(c) Feoffees of Heriot's Hospital v. (e) Weld v. South Eastern Railway Gibson, 2 Dow. 301 ; North British Co., 32 Bear. 340, 33 L. J. Ch. 142. Railway Co. v. Todd, 12 CI. & Fin. See, as to the rectification of mistakes 722; R. V. Caledonian Railway Co., in the plans and books of reference, 8 16 Q. B. 19 ; Beardmer v. London and Vict. c. 20, s. 7 ; Taylor v. Clemson, 2 North Western Railway Co., 1 Mac. Q. B. 978, 11 CI. & Fin. 610 ; Kemp v. & G. 112, 1 H. & Tw. 161, 5 Ra. Ca. West End of London and Crystal Palace 728; Breynton v. London and North Railway Co., 1 K. & J. 681. [329] * 318 INJUNCTIONS AGAINST TRESPASS. [CH. XVII. than a hundred yards from the line delineated in the parlia- mentary plans, the medium filum of each being the commence^ ment and termination in measuring the hundred yards (/). The word " levels " in the 11th section does not refer to surface levels (^r). 57. When a viaduct or tunnel was marked on the plans deposited as intended to be made, no deviation could, under the Railways Clauses Consolidation Act, 8 & 9 Vict. c. 20, s. 13, be made except with the consent of the land-owner. It was necessary that the work, if made, should be made *318 accordingly (A). But under * 26 & 27 Vict. c. 92, s. 4, a railway company in the construction of the line may deviate from the line or level of any arch, tunnel, or viaduct described on the deposited plans or sections, so as the devia- tion be made within the limits of deviation shown on the plans, and so as the nature of the work described be not altered; and may also, with the consent of the board of trade, substi^- tute any engineering work not shown on the deposited plans or sections for an arch, tunnel, or viaduct, as shown thereon. Memorandum of an intention to divert a road, however clearly expressed in the deposited plans, does not amount to a par- liamentary license to divert or alter the road. Reg. v. Wy- combe Railway Co., 2 L. R. Q. B. 310. 58. The words " other engineering works " contained in the 14th clause are referable to the general line and level of the railway, and not to the alteration of streets, roads, ways, &c., &c., mentioned in the 16th clause (i). 59. The promoters of a company must give notice of their intention to exercise their powers of deviation (/c). 60. Land-owners who wish to prevent the promoters of a (/) Doe V. Bristol and Exeter Eail- (h.) Little v. Newport and Hereford way Co., 6 M. & W. 320; Doe». North Railway Co., 12 C. B. 752; Att.-Gen. Staffordshire Railway Co., 16 Q. B. v. Tewkesbury and Malvern Railway 526. Co., 1 D. J. & S. 423. (g) North British Railway Co. v. {i) Beardmer v. London and North Todd, 12 CI. & Fin. 722 ; Beardmer v. Western Railway Co., 1 Mac. & G. 112, London and North Western Railway 1 H. & Tw. 161. See, also, as to 14th Co., 1 Mac. & G. 112, 1-H. & Tw. 161 ; clause, Att.-Gen. v. Tewkesbury and Ware v. Regent's Canal Co., 3 D. & Malvern Railway Co., 1 D. J. & S. J. 212. See, as to meaning of word 423. "town," in the llth clause, Elliott (/c) 8 Vict. c. 20, s. 12. See Pearce ;;. South Devon Railway Co,, 2 Exch. v. Wycombe Railway Co., 1 Drew. 244, 725. 17 Jur. 660. [330] CH. XVII.J RAILWAYS CLAUSES CONSOLIDATION ACT. * 319 railway company from using the powers of deviation reserved to them under 8 & 9 Vict. c. 20, ss. 11-15, should have ap- propriate clauses inserted in the special act (?). If there be nothing in the special act, or the matter in dispute having been referred to arbitration, there be nothing in the reference to arbitration, or in the award consequent thereon, to prevent them from doing so, a company may exercise the powers of deviation, as they think best within those limits (m). 61. A land-owner is not entitled to an injunction to restrain a railway company from proceeding with their works, although they are deviating to a greater extent than is author- ized by * 8 & 9 Vict. c. 20, ss. 11-15, unless he can * 319 show that he is substantially injured by the devia- tion (n). 62. Land which is necessary for the erection of stations and other conveniences for the proper working of the railway, or for the purpose of constructing the works authorized by 8 Vict. c. 20, s. 16, may be taken, though it is beyond the limits of deviation (o), provided such land be scheduled in the act and included in the plans and books of reference (p). 63. Land, on the other hand, not required for the purpose of enabling a company to construct their works in a proper and convenient manner may not be taken (5), even although it be within the limits of deviation. Thus, a railway company was restrained from taking a piece of land for the purpose of making an embankment and a greater slope on each side of a {!) Eton College v. Great Western (0) Cother v. Midland Railway Co., Railway Co., 1 Ra. Ca. 200 ; Gray v. 2 Ph. 469 ; Crawford ^. Chester and tiyerpool and Bury Railway Co., 9 Holyhead Railway Co., 11 Jur. 918; Beav. 391 ; Sparrow v. Oxford, Wor- Richards v. Scarborough Public Mar- cester, and Wolverhampton Railway ket Co., 23 L. J. Ch. 110 ; Midland Co., 9 Ha. 436, 2 D. M. & G. 94 ; St. Railway Co. v. Ambergate, &c., Rail- Thomas' Hospital u. Charing Cross way Co., 10 Ha. 359 ; Sadd v. Maldon, Railway Co., 1 J. & H. 400. See Braintree, and Withani Railway Co., 6 Wood V. North Staffordshire Railway Exch. 143; Doe v. North Staffordshire Co., 1 Mac. & G. 279 ; Leominster Canal Railway Co., 16 Q. B. 626. See Wood Nayigation Co. v. Shrewsbury and u. Epsom and Leatherhead Railway Co., Hereford Railway Co., 3 K. & J. 654. 8 C. B. N'. S. 731. (m) Wood K. North Staffordshire Rail- (p) Doe r. North Staffordshire Rail- way Co., 1 Mac. & G. 279; Selby v. way Co., 16 Q. B. 526. See Wrigley Colne Valley and Halstead Railway v. Lancashire and Yorkshire Railway Co., 10 W. R. 661. Co., 4 Giff. 352. See, also, 26 & 27 Viet. (n) Holyoake v, Shrewsbury and c. 92, s. 8, as to power to take land for Birmingham Railway Co., 5 Ra. Ca. the purpose of erecting a lodge at a 427. See Wintle v. Bristol and South level crossing. Wales Union Railway Co., 10 W. R. 210: (q) See supra, p. 802. [331] * 320 INJUNCTIONS AGAINST TRESPASS. [CH. XVII. cutting, and from claiming more land than was declared by a referee to be necessary for the purposes of the act(r). So a railway company was restrained from taking land for the purpose of excavating materials therefrom to be used in com- pleting an embankment, though it was within the limits of deviation (s). So, also, a railway company was restrained from taking land not wanted for the purposes of the work, but for the purpose of digging out materials for their construc- tion (i). So, also, a railway company was restrained from taking land for the purpose of altering a road, so as to be a convenience to a neighboring proprietor, though the * 320 land lay within the limits * of deviation (w). Land, however, within the limits of deviation may be taken for the purpose of making a siding, so as to give local traffic an ingress on the main line (x). So, also, a company author- ized to take land for the purposes of stations, works, and con- veniences, may continue their line into the land so taken, and lay down such rails as may be required for the more conven- ient use of the station («/). 64. The court will not, on the ground of public inconven- ience, restrain a railway company keeping within their powers of» deviation from deviating from the plan, unless it can be shown that they are acting capriciously (g). 65. By the 16th and 19th clauses of the Railways Clauses Consolidation Act, 8 Yict. c. 20, railway companies are em- powered to execute certain works in the mode and in the manner therein mentioned (a). By the 16th clause it is declared that tliey shall in the execution of such works do as little damage as can be. A railway company may erect buildings over streets in a town for the construction of stations, warehouses, &c., if it is necessary or reasonably convenient for the pur- poses of the line (6). (r) Webb v. Manchester and Leeds {y) Wood v. Epsom and Leatherhead Railway Co., 4 M. & C. 116. Eailway Co., 8 C. B. N. S. 731. (s) Eversfield v. Mid-Sussex Railway (z) Att.-Gen v. Great Western Rail- Co., 3 D. & J. 287. way Co., 14 W. R. 726. (t) Bentinck t>. Norfolk Estuary Co., («)• See, as to works in navigable 8 P. M. & G. 714. ^ rivers, Abraham v. Great Northern (u) Dodd V. Salisbury and Yeovil Railway Co., 16 Q. B. 586. Railway Co., IGiflf. 161, aff. 33 L.T. 311. (b) Att.-Gen. v. Eastern Counties (x) Re Yorkshire, Doncaster, and Railway Co., 2 Ra. Ca. 823. Goole Railway Co., 1 Jur. N. S. 975. [332] CH. XTII.] EAILWAYS CLAUSES CONSOLIDATION ACT. *321 66. By the 46th clause of the act provisions are made as to the carrying railways over roads (c). 67. By the 49th clause it is ' provided that bridges con- structed to carry the line over a turnpijje or other road shall be of the space and height provided according to the nature and width of the road (rf). The descent into the road so as to carry the same * under the bridge is not to * 321 exceed certain specified gradients. It seems that no additional width is allowed for a foot-patli (e), and that the company may lower the road without lowering the foot-path, if that be the more beneficial course (/). 68. The 50th clause provides for the width of the road and the ascent to bridges by whicli roads are constructed over rail- ways (^). The company may not make the approaches to bridges nearer than the corresponding parts of the roads were before (A). 69. If the company find it necessary to interfere with any road, either public or private, so as to make it impassable for or dangerous or extraordinarily inconvenient to passengers or (c) See Breynton v. London and North Western Railway Co., 4 Ra. Ca. 564; South Eastern Railway Co. v. Reg., 17 Q. B. 485, 4 H. L. 471 ; War- den of Dover Harbor v. London, Chat- ham, and Dover Railway Co., 3 D. F. & J. 559 ; Proprietors of Northam Bridge and Roads Co. v. London ahd Southampton Railway Co., 6 M. & W. 428, 1 Ra. Ca. 653 ; Trustees of New- castle, &c., &o., Roads V. North StaflTord- shire Railway Co., 5 H. & N. ' 160 ; London and North Western Railway Co. V. Skerton, 5 B. & S. 559. (d) Att.-Gen. v. London and South- ampton Railway Co., 9 Sim. 78, 1 Ra. Ca. 383 ; Reg. v. Birmingham and Gloucester Railway Co., 2 Q. B. 47, 2 Ra. Ca. 694; Clarke v. Manchester, Sheffield, and Lincolnshire Railway Co., 1 J. & H. 681 ; Wintle v. Bristol and South Wales Railway Co., 10 W. R. 210 ; Wandsworth Board of Works V. London and South Western Railway Co., 31 L. J. Ch. 854; Att.-Gen. v. Tewkesbury and Malvern Railway Co., 1 D. J. & S. 425. . See, as to special clauses to the same effect in a special act, Att.-Gen. v. Eastern Coun- ties Railway Co,, 8 Ra. Ca. 337 ; Lon- don and Brighton Railway Co. u. Cooper, 2 Ra. Ca. 812. See, as to right to construct temporary bridges over roads during the progress of the works, London and Birmingham Railway Co. V. Grand Junction Railway Co., 1 Ra. Ca. 224 ; Priestley v. Manchester and Leeds Railway Co., 2 Ra. Ca. 134, 4 Y. & C. 63 ; Att.-Gen. v. Eastern Coun- ties Railway Co., 3 Ra. Ca. 837. See, also, Clarke v. Manchester, Sheffield, and Lincolnshire Railway Co., 1 J. & H. 631, when there was an agreement to construct a suitable bridge over a street, but there was no reference to the general act. (e) Reg. V. Rigby, 14' Q. B. 687. (/) Reg. V. Manchester and Leeds Railway Co., 8 Q. B. 528. (g) See Att.-Gen. v. London and Southampton Railway Co., 1 Ra. Ca. 283 ; Beardmer v. London and North Western Railway Co., 1 Mac. & G. 118 ; Reg. V. East and West India Docks and Railway Co., 2 E. & b: 466 ; South Eastern Railway Co. u. Reg., 20 L. J. Q. B. 428. (h) See Reg. v, London and Birming- ham Railway Co., 1 Ra. Ca. 817; Reg. V. Birmingham and Gloucester Rail- way Co., 2 Q. B. 47. [333] * 322 INJUNCTIONS AGAINST TRESPASS. [CH. XVII.. carriages, or to the persons entitled to the use thereof, they are first to provide a sufficient road in substitution for it(t), and unless the original road be restored, the substituted road or some other sufficient substituted road is to be put into a permanently substantial condition, equally convenient as the former road, or as near thereto as circumstances will allow (Jc). * 822 70. * By 8 Vict. c. 20, s. 76, the owners or occupiers of lands adjoining a railway are empowered to lay down branches communicating with the railway, and the railway company is required to make openings in the line or sidings for the brandies at places to be approved by the company. The assent of a company to an opening being made at a station is not in the nature of an easement, and cannot be revoked (l). 71. By 8 Yict. c. 20, s. 87, railway companies are em- powered to enter into contracts with other railway companies for passing over each other's lines upon the payment of such tolls (m) and under such restrictions as may be mutually agreed upon (w), and to enter into a contract for the division • (i) A road already existing is not a man v. Tottenham, &c., &c., Railway substituted road within the meaning of Co., 11 Jur. N. S. 107, 254. The clause the clause. Att.-Gen. t). Great Northern does not refer to the conversion of a Railway Co., 4 De G. & S. 76 ; Beg. v. road into a railway. Tanner v. South Scott, 3 Q. B. 543. Wales Railway Co., 5 E. & B. 618. '■ (h) Spencer v. London and Birming- See, as to who is to be considered an ham Railway Co., 8 Sim. 193, 1 Ra. " owner," CoUinson v. Newcastle and Ca. 159 ; Att.-Gen. v. London and South- Darlington Railway Co., 1 C. & K. 546 ; ampton Railway Co., ib. 302 ; Reg. v. Mann v. Great Southern and Western London and Birmingham Railway Co., Railway Co., 9 Ir. C. L. 105 ; Reg. a. ib. 317 ; Kemp v. London and Brighton Wycombe Railway Co., 2 L. R. Q. B. Railway Co., ib. 495 ; Bell v. Hull and 310. Selby Railway Co., 2 Ra. Ca. 279 ; (I) Bell v. Midland Railway Co., 10 London and Brighton Railway Co. v. C. B. N. S. 287, 3 D. & J. 673, Blake, ib. 332; Att.-Gen. v. Eastern (m) See, as to the meaning of the Counties Railway Co., 3 Ra. Ca. 337 ; word " toll," Simpson v. Denison, 10 Att.-Gen. v. London and South Western Ha. 51 ; Great Northern Railway Co. v. Railway Co., 3 De G. & S. 489 ; Reg. v. South Yorkshire Railway Co., 9 Exch. Scott, 3 Q. B. 543 ; Att.-Gen. v. Lon- 644. See, also, South Yorkshire RaU- don and South Western Railway Co., way Co. v. Great Northern Railway 4 De G. & S. 75 ; Ellis v. London and Co., 3 D. M. & G. 576. South Western Railway Co., 2H. &N. (n) See, as to special conditions in 424 ; Gawthern v. Stockport, Disley, agreements for the user of a railway, and Whaleybridge Railway Co., 3 Jur. South Yorkshire Railway Co. v. Great N. S. 573 ; Caledonian Railway Co. «. Northern Railway Co., 3 D. M. & G. Colt, 3 Maeq. 833; Att.-Gen. w. Dorset 576; Furness Railway Co. v. Smith, 1 Central Railway Co., 9 W. R. l69; De G. & G. 299. (User of a pier.) Marquis of Salisbury v. Great Northern Shrewsbury and Birmingham Railway Railway Co., 5 C. B. N. S. 174 ; Eree- Co. v. Stour Valley Railway Co., 2 D. [334] CH. XVII.J RAILWAYS CLAUSES CONSOLIDATION ACT. * 323 or apportionment of the tolls with the view of carrying out this object (o). The clause * does not authorize * 323 an agreement which will amount in fact to a lease, or to a transfer of the undertaking to another company (^), or which will have the effect of enabling one company to carry the whole of the traflBc of another company, under color of passing over the line of the other company (g), but merely gives to one party a limited power to run a portion of its traffic over the other line(T). An agreement between two railway companies, giving one company the power to pass over the line of the other on certain specified terms, confers rights of a permanent nature, and is not a mere license determinable at will, although it may not contain words of succession or ref- erence as to time (s). The terms of the agreement are not too vague, but will be held to concede a user consistent with the -proper enjoyment of the railway, the subject-matter of the contract, and with the rights of the granting party (^). 72. Where an agreement has been entered into between two companies as to the terms of passing over eacli other's lines, the rights in respect of such passing depend upon the terms of the agreement, and are no longer governed by the Railways Consolidation Act, '8 Vict. c. 20,* s. 87 (u). 73. The 92d clause of Railways Clauses Consolidation Act seems intended to apply to the user of the line by the public generally, and not to that under express agreements made under the 87th clause. The intention appears clearly to be to make railways public highways for engines and carriages prop- erly constructed (x). M. & G. 866; London, Brighton, and (p) Great Northern Railway Co. v. South Coast Railway Co. v. London Eastern Counties Railway Co., 9 Ha. and South Western Railway Co., 4 J). 306. & J. 363. (User of a joint station.) (g) Simpson v. Denison, 10 Ha. 51. Shrewsbury, &c., &c.. Railway Co. v. (r) Winch a. Birkenhead Railway Chester, &e., &c., Railway Co., 14 L. Co., 5DeG. &S. 562; Simpson u. Deni- T. 433. (Interference with the user of son, 10 Ha. 51. a joint station.) Midland Railway Co. (s) Great Northern Railway Co. v. V. Ambergate, &c., &c.. Railway Co., Manchester, Sheffield, and Lincolnshire 10 Ha. 359. (User of a station.) Railway Co., 5 De G. & S. 138. (o) See South Yorkshire Railway (i) /6. Co. V. Great Northern Railway Co., 3 («) Great Northern Railway Co. v. D. M. & G. 583 ; East Lancashire Rail- Eastern Counties Railway Co., 9 Ha. way Co. V. Lancashire, &c., &c.. Railway 306. Co., 9 Exch. 591. See, also. Rail- (a) Midland Railway Co. v. Amber- way Traffic and Canal Act, 17 & 18 Vict, gate, &c., &o., Railway Co., 10 Ha. 359. c. 31. See ib., as to whether the right to use [335] * 324 INJUNCTIONS AGAINST TRESPASS. [CH. ZTII. 74. Where a railway company is empowered by its act to form a junction with another line of railway, the latter * 324 company will * be restrained from interfering with the former company in making the junction (?/). In mak- ing the junction a company may not take the land or interfere with the works of the company or person to whom the other railway belongs, or any of the works thereof, further than is necessary for making the junction (a). A railway which is empowered to use, enter upon, or take land necessary for the purposes of the junction, takes only an easement in the land of the other company (a), unless otherwise provided in the special act, or unless an agreement has been come to between the companies for the sale of the land (6). 75. The court will enforce by injunction the provisions of the 115th section of the Railways Clauses Consolidation Act, that no engine or other description of moving power shall be brought or used upon a railway, unless the same shall have been approved by the railway company as therein mentioned, notwithstanding that to enforce such right of inspection would occasion great inconvenience to the public traffic, and although it may appear that the provision is sovfght to be enforced, not from any apprehension of the use of improper engines, but for the purpose of impeding the traffic over the line of a competing company (c). 76. The court will enforce by injunction the provisions of the 117th section of the Railways Clauses Consolidation Act, that no carriage belonging to another company having the right to run over the line, shall pass along or be upon the railway unless it be at all times, so long as it shall be used or shall remain on the railway, of the construction and in the condition which the regulations of the company for the time being shall require. Parties whose right to use a railway is secured by act of Parliament cannot insist upon their right. the railway includes the right to use (a) Oxford, Worcester, and Wolver- the stations. Comp. Simpson o. Deni- hampton Railway Co. v. South Stafford- son, 10 Ha. 51. shire Railway Co., 1 Drew. 263. [y) Great Northern Railway Co. v. (h\ 26 & 27 Vict. c. 92, s. 10. East and West India Docks, &c., &c., (c) Midland Railway Co. v. Amber- Railway Co., 7 Ra. Ca. 366. gate, Nottingham, &c., &c.. Railway [z) 26 & 27 Vict. c. 92, =. II. Co., 10 Ha. 369. [336] CH. XVII.] INJUNCTIONS AGAINST TRESPASS. * 325 and at the same time say that the rules and regulations made for the security of the line, the passengers, and the traffic, are unreasonable, unnecessary, and inapplicable to their particular traffic (c?). 77. * Where an act of Parliament enables the owners * 325 or occupiers of lands adjoining the railway to carry the lifie across the lands of a private person or another line of railway, the power is not confined to the owners or occupiers at the time the railway was made, but extends to persons who have become owners or occupiers since the passing of the act (e). 78. Where the special act prohibits a company from entering upon or taking lands without the consent of the owner, his consent must be obtained before the lands are taken. A rival company may, under the provisions of the clause, refuse to allow their railway to be crossed, although the effect of such a construction may be to prevent the undertaking from being carried into execution (/). 79. After a company have taken lands under their compul- sory powers and paid the money, the owner of the land cannot restrain them in the mode of using the land (gr). Nor can a man whp has sold his land to a company and given them pos- session, have an injunction to restrain the company from con- tinuing in possession of the land in default of payment of the purchase-money. His proper remedy is to enforce his lien or to have a receiver appointed (A). 80. The doctrine of part performance applies in the case of railway companies. Where a railway company had paid part of the purchase-moneys, and had taken possession, but re- tained the balance until a good title could be shown, the court held that they had purchased the right of possession, and would not restrain the company from continuing in possession {d) See Ehymney Railway Co. v. (/) Clarence Railway Co. v. Great Taff Vale RaUway Co., 29 Beav. 153, North of England, &c., &o.. Railway affr. 9 W. E. 362, when the case turned Co., 4 Q. B. 46, 2 Ra. Ca. 763. See upon a clause in a special act. Gray v. Liverpool and Bury Railway (e) Bishop v. North, 11 M. & W. 418 ; Co., 9 Beav. 391. Monkland and Kirkintilloch Railway (g) East and West India Docks, &c., Co. V. Dixon, 3 Ra. Ca. 273 ; Bell v. &c.. Railway Co. v. Dawes, 11 Ha. Midland Railway Co., 3 D. & J. 673, 363. 10 C. B. N. S. 287. See, also, Farrow {h) Pell v. Northampton and Ban- V. Vansittart, 1 Ra. Ca. 602 ; Dand v. bury Junction Railway Co., 2 L. R. Ch. Kingscote, 2 Ra. Ca. 27. App. 100. 22 [337] * 327 INJUNCTIONS AGAINST TRESPASS. [CH. XVII. of the land until payment of the balance into court (J). * 326 81. * The lawfulness of the entry of a railway com- pany upon land under the provisions of statutes earlier in date than the Lands Clauses Act or Railways Clauses Con- solidation Act, was disputed in several cases (/c). 82. The commissioners of sewers, acting under 67 Geo. 3, c. 29, cannot take compulsorily the whole of a house, unless they have formally adjudged that possession of the whole is . necessary for the purpose of executing their powers (Z). Un- der the Public Health Act, 11 & 12 Vict. c. 63, the powers of local boards of health are confined to their own districts. The Local Government Act, 21 & 22 Vict. c. 98, extends those powers, but only for the purpose of distribution or outfall, that is, cleansing the sewers, and does not give power to con- struct sewers out of the district (m). A local board has power, under 11 & 12 Vict. c. 63, s. 45, to carry sewers through land without the consent of the owners, but it has no power, under s. 46, to enter upon land without the consent of the owners, for the purpose of making reservoirs and deposit beds for retaining the sewage (pi). 83. Under the provisions of the Metropolis Local Manage- ment Act, 18 & 19 Vict. c. 120, works comprised within the terms of the 185th section, may be constructed on making compensation for damage without first acquiring the lands under the provisions of the' 150th-153d sections and the Lands Clauses Act, notwithstanding that the works may be of such a character as to involve an actual taking of land, and may be within the powers of sections 150-153 (o). 84. The appeal given by the 211th section to the Metropoli- tan Board of Works, does not oust the jurisdiction of * 327 the court where * any local board has exceeded its (i) Capps V. Norwich and Spalding (1) Thomas v. Daw, 2 L. E. Ch. Railway Co., 9 Jur. N. S. 686. App. 1. {k) Doe V. Manchfester, Bury, &c., (m) Haywood v. Lowndes, 4 Drew. Railway Co., 14 M. & W. 687 ; Jones «. 454. Great Western Railway Co., 1 Ra. Ca. (n) Sutton v. Mayor, &c., &c., of Nor- 684 ; Langford v. Brighton and Lewes wich, 27 L. J. Ch. 739. Railway Co., 4 Ra. Ca. 69 ; Skerratt v. (o) North London Railway Co. v. North Staffordshire Railway Co., 5 Ra. Metropolitan Board of Works, John. Ca. 166 ; South Western Railway Co. v. 405 ; Hughes v. Metropolitan Railway Coward,*. 703; Doe U.Leeds and Brad- Co., 7 Jur. N. S. 986. See Clarke ». ford Railway Co., 15 Jur. 946. Vestry of Paddington, 5 Jur. N. S. 138. [338] CH. XVII.] INJUNCTIONS AGAINST TBBSPASS. * 328 powers (p ). The power of the board to require certain altera- tions to be made being a discretionary one in each particular case, the board is bound to exercise its discretion in each par- ticular case, and is acting, ultra vires, if without exercising such discretion it proceeds to make the alterations in pursuance of a determination to require it to be made in all cases ( 5'). 85.' Under the Metropolitan Buildings Act, 18 & 19 Vict. c. 122, if a party-wall is insufficient to bear a building about to be laid on it, the builder has a right to pull down the p^rty- wall, even to the inconvenience of the adjoining owner (r). It is required by the 143d section of 18 & 19 Vict. c. 120, that no building is to be erected beyond the regular line of buildings in the street in which the same is situate. This does not mean a strict mathematical line, but a substantially regular line (s). 86. The Thames Embankment Act, 1862, 25 & 26 Vict. c. 93, incorporates the Lands Clauses Act, with the additional provision that the word " land " shall include easements and interests in land. The owner of a wharf on the Thames had a right of free access to the river, and also the right of load- ing and unloading his barges at the wharf, but there was no campshed or hard. The barges only rested at low water on the mud of the foreshore. The court held that the filling up the river in front of the wharf was not a taking or using for the purposes of the undertaking any easement or interest, and refused to restrain the defendants from proceeding with their works until they had complied with the provisions of section 84 of the Lands Clauses Act (t). 87. The owner of a mine is often unable to obtain clear and satisfactory proof that his neighbor is trespassing on his mine, though he may have fair presumptive evidence of the fact. The court will, in such cases, upon a fair primd facie case being made out, order the owner of the adjoining mine to permit * an inspection to be made of his mine by * 328 proper persons, named on behalf of the plaintiff (m), and (p) Tinkler v. Wandsworth District Works, 33 L. J. Ch. 377. See the Board of Works, 2 D. & J. 261. Temple Pier Co. v. Metropolitan Board (?) 75. , of Works, 34 L. J. Ch. 262. ir) Seawell v. Webster, 7 W. E. 691. (u) Lewis v. Marsh, 8 Ha. 97 ; Bennitt (s) Tear v. Freebody, 4 C. B. N. S. v. Whitehouse, 28 Beav. 119. See 228. Ennor v. BarweU, 1 D. F. & J. 628. (t) Macey v. Metropolitan Board of [339] * 329 INJUNCTIONS AGAINST TRESPASS. [CH. XVII; will, as auxiliary to the inspection, order the removal, if necessary, of obstructions to the inspection, and that all steps be taken as are necessary to enable the inspector to make a complete inspection (a;). 88. An order for inspection will be made on an interlocutory application (y). If a fair primd facie case be made out, and an inspection is material, the mere denial of the defendant amounts to nothing. He must positively swear that injury will.be done him by being compelled to submit to the inspec- tion (s). An order to inspect may be granted at the same time as an interim order for an injunction ; but if an undertaking is offered, and time is asked to answer affidavits, an inspection will not be ordered adversely, on the motion for an injunc- tion (a). But if no affidavits be filed by the defendant before the time appointed, an inspection will, upon the renewal of the application, be ordered upon the undertaking of the plaintiff to answer such damage as the court will award (&). 89. It is not according to the course of the court to make, upon interlocutory application before the hearing, an order authorizing a man to break up the soil of another, for the pur- poses of inspection (c). 90. The court has jurisdiction, where apertures or roads have been made from one mine into the adjoining mine, to order that access be given to the mine, so as to enable the person whose mine has been encroached upon to block them up. This order was made in a case where the apertures and roads had been made by persons under whom the mine-owner claimed, and not by himself () ; a private siding to a railway (^q) ; the entrance to a vault (r) ; a market (s) ; a right of stallage (f) ; ground dedicated to public recreation (m) ; the construction of a rail- way (d) ; and damage to crops (a;). 2. A nuisance to a churchyard comes properly within the cognizance of the ecclesiastical courts (?/). * 399 3. * In Woodman v. Robinson (2), a bill was filed by a single parishioner against some of the churchward- ens of a parish to restrain them from warming the church in a manner which he alleged to be injurious to health. Lord Cranworth considered it doubtful whether it was a public nuisance, and whether such a bill could be sustained by a single parishioner ; but it was not necessary to decide the point (tt). (p) Att.-Gen. v. Conservators of Thames, 1 H. & M. 1 ; Macey v. Met- ropolitan Board of "Works, 33 L. J. Ch. 377; Att.-Gen. v. Boyle, 10 Jur. N. S. 309. (g) Bell V. Midland Railway Co., 3 D. &J. 678, IOC. B.N. S. 287. (r) Daniel v. Anderson, 31 L. J. Ch. 610. (s) Anon., 2 Ves. 414. {t} Ellis V. Corporation of Bridgnorth, 2 J. & H. 67. (m) Att.-Gen. v. Mayor of South- ampton, 1 Giff. 363. (w) Great North of England Railway Co. V. Clarence Railway Co., 1 Coll. 507 ; London and Birmingham Rail- way Co. V. Grand Junction Canal Co., 1 Ra. Ca. 224. (x) Broadbent v. Imperial Gas Co., 7 D. M. & G. 436, 7 H. L. 600 ; Tipping V. St. Helen's Smelting Co., 1 L. R. Ch. Ap. 66 ; supra, pp. 860, 361. iy) Large v. Alton, Cro. Jac. 462; Wenmouth v. Collins, 2 Lord Raym. 850 ; Quilter v. Newtown, Carth. 151 ; Wilson V. M'Math, 2 B. & Aid. 241, 3 Phill. 89 ; Buxton v. Calcote, Cade v. Newenham, 3 Phill. 91; Earl Fitzwil- liam V. Moore, 3 Ir. Eq^. 615. (z) 2 Sim. N. S. 204. (a) See as to acts in nature of waste in the chiirehyard, supra, pp. 262, 265- 267. [414] CH. XIX.] THE INFRINGEMENT OF PATENTS. * 400 * CHAPTER XIX. *400 INJUNCTIONS TO RESTRAIN THE INFRINGEMENT OF PATENTS. SECTION I. — PEINCIPLES ON WHICH THE COURT RESTRAINS THE INEEINGEMENT OF PATENTS. 1. Principles upon which court proceeds in restraining infringement of patent rights by interlocutory injunction. 2. When the court will interfere by injunction before trial at law. 3. In cases of recent patents. 4. No injunction when two parties have obtained patents for same invention. B. Verdict at law not conclusive against person not party to the suit. 6. Prima facie case of infringement as well &s prima facie title must be made out. 7. Practice when fact of infringement or validity of title is denied. 8. What the bill must allege. 9. Who must be made parties. 10. Affidavits to be made by plaintiff. 11. By defendant in opposition to injunction. 12. The defendant must answer fully the interrogatories which the plaintiff is entitled to make. 13. Effect of delay and acquiescence. 14. Admissions to be made at trial. 1. The jurisdiction of courts of equity in restraining by interlocutory injunction the infringement of patent rights, is in aid of the legal right. The court proceeds on the assumption that the person who makes the application has the legal right which he asserts, but needs the aid of the court for the purpose of protecting his property from damage pending the trial of the legal right (a). The only remedy which* a court of law could, till recently, give a patentee for the infringement of his patent rights, was the remedy by dam- ages ; but courts of law in which actions may be brought for the infringement of patents have been empowered by the 15 & 16 Vict. c. 83, to order an inspection, injunction, and account (a) Bacon v. Jones, 4 M. & C. 436. [415] ^400 INJUNCTIONS TO RESTRAIN [CH. XIX. in patent cases. This enlargement of their jurisdiction has enabled courts of law of their own authority to do complete and final justice between the parties (6) ; but the< original jurisdiction of courts of equity has not been in any way af- fected by the act. 2. It seems to have been formerly the opinion that a court of equity would not interfere by injunction to protect a patent right, until the right had been established at law (c) ; ^ but (J) Holland v. Fox, 3 E. & B. 983; Vidi V. Smith, ib. 969. (c) Millar v. Taylor, 4 Burr. 2303. See, also, 2 C. P. C. 61 n. 1 The plaintiff will not be compelled to estabUsh his right at law before in- junction when a patent has been granted, and there has been an exclusive posses- sion of some duration under it. " It is not possible to fix any precise term of years during which the exclusive pos- session must have continued. The reason of the presumption in favor of the validity of the grant is the acquies- cence of the public in the exclusive right of the patentee, which it may reasonably be assumed would not exist unless the right was well founded. And it is obvious that this public ac- quiescence is entitled to more or less weight, according to the degree of the utility of the machine and the number of persons whose trade or business is affected by it." Curtis, J., Foster V. Moore, 1 Curtis, C. C. E. 286. And acquiescence in the claim of the paten- tee during the two j'ears which he is permitted to sell his patented article before the date of the patent, is entitled to weight in considering his right to a temporary injunction. To make a ■ prima facie title without a judgment at law, the patentee must have had such an exclusive possession as, with his claim and the acquiescence of the pub- lic, lays a reasonable foundation for the presumption of the validity of Ms patent. An unsuccessful attempt to interrupt a possession, strengthens the presumption which arises from it. Sargent v. Sea- grave, 2 Curt. 653 ; Orr v. Littlefield, 1 Wood. & M. 13 ; Grover and Baker Sewing Machine Co. v. Williams, 8 Fisher's Pat. Cases, 133 ; Sprague J., Motte V. Bennett, 2 Fisher's Pat. Cases, 642. The practice in the courts of the United States in respect to granting injunctions in patent eases, has always been that of the English Chancery. [416] Wayne, J., ib. ; see also Nevins v. John- son, 3 Blatch. 81. In the courts of the United States, in cases of waste and trespass, if the title of the complainant is denied, he must show that there are no facts to warrant the denial, or the injunc- tion will be refused till the disputed ques- tions of title are settled at law. Perry V. Parker, 1 Wood. & M. 280. Where, on a motion for a provisional injunction to restrain the infringement of letters- patent for a floating grain dryer and elevator, the patent was not attacked for want of novelty, and the infringe- ment was clear, but the patent had never been tried or established at law or in equity, and no evidence was furnished as to its use, or as to the extent of its use, or as to acquies- cence in the patent by the public, and the defendant showed that he had used his apparatus for about three years, and that no claim had been made against it under the patent until about six weeks previously, and the atnount invested in the defendant's apparatus and busi- ness was large, and the business seemed to be precarious, and nothing appeared as to the defendant's responsi- bility, an injunction was withheld until the plaintiff should estabhsh satisfac- torily the point of acquiescence by the pubUc, and show how the defendant's apparatus had been allowed to be used without interference; and leave was given to the plaintiff to renew his motion, on further papers, but the de- fendant was required to render sworn periodical accounts of the grain which should in future be treated by his apparatus, and to give satisfactory security by bond, with sureties to pay what might be recovered in the suit. Sykes v. Manhattan Elevator and Grain Drying Company, 6 l?latch. 496. But where tiie validity of a patent is fully established and its infringement is clear, the patentee has a right to pro- tection by injunction, although great CH. XIX.] THE INFRINGEMENT OP PATENTS. *401 this doctrine was denied by Lord Bldon in the case of the Universities of Oxford and Cambridge v. Eicliardson (c?), and since that time the jurisdiction of the court to interfere in all cases where there is a clear color of title and assertion of right has not been disputed (e). The mere possession of a patent is not * of itself such color of title as will justify * 401 the court in protecting it by injunction ; but if the pos- session is supported by a quiet and exclusive enjoyment of some duration (/), or if the title has been successfully as- injury may thereby be caused to the in- fringer. Hodge w. Hudson River Railway Co., 6 Blatchf. 165. " A mere denial by an answer of the equity of the biE does not prevent the court from looking into the law and the facts of the case, when a special injunction is moved for, and granting or refusing it according to its discretion. And where the title to an injunction does not depend upon any controverted or doubtful facts, but up- on the interpretation to be put by the court upon a written instrument, I consider it my duty to interpret it on such a motion, and grant or refuse the injunction according to the result of that interpretation. There may be cases in which there is so much doubt what the parties to an Instrument intended to affect by it, that the court may think it proper to suspend its judgment until the surrounding circumstances can be more fiilly [and safely examined on a final hearing. It is possible, also, that where there are grave doubts concern- ing the legal effect of an instrument, the court might decline to interfere by special injunction, even though, if com- pelled to decide, their decision must be in favor of the complainant. Probably the circumstances of the case, and the degree of mischief which would be suffered by refusing the injunction, compared with the inconvenience and loss occasioned by granting it, would control the action of thfr court in the case supposed. But, in general, I appre- hend that, if the title to a temporary injunction depends on the construction to a deed, the court will construe it and act accordingly, whatever view of that question, the answer may have pre- sented." Curtis, J., Clum v. Brewer, 2 Curtis, C. C. B. 506 ; Hodge v. Hud- son River Railway Co., 6 Blatchf. 165. In the \ast case it also appeared that the defendant was willing to pay a reasonable sumfor the use of the pat- ented invention, and that the plaintiff had a fixed license fee for its use, and exercised the franchise solely by licens- ing, for fees, the use of the invention ; and the court held, that the defendant ought to be enjoined only, in case he should elect to be enjoined in pref- erence to paying a reasonable license fee for the use of the invention to such extent as he might desire to use it dur- ing the unexpired term of the patent, such fee to be no greater thai^ the regu- lar fee, if any, estabUshed in such-cases, and to be ascertained, as of the time of filing the bill, by a reference to a'master on testimony to be produced before him. Also Smith v. Sharp's Rifle Manuf. Co., 3 Blatchf 545; U. S. Annunci- ator Co. V. Sanderson, ib. 184. But see Howe V. Newton, 2 Fisher's Pat. Cas. 534 ; contra as to the practice in Mass. Dist.' In such cases, Grier, J., says, injunction is not the proper renied^. Sanders v. Logan, 2 Fisher's Pat. Cas. 167. The application for temporary injunction may be granted or refused unconditionally, or terms may be im- posed on either of the parties as condi- tions for making or refusing the order. Forbush v. Bradford, 11 Law Rep. 411, Curtis, J. One material question always is whether the defendant is responsible. Day v. Boston Belting Co., 6 Law Rep. 330, Sprague, J. See, also, Sickels v. Mitchell, 3 Blatchf. 552. See, also, as to general principles upon which injunction will be granted, Sickels V. Youngs, 3 Blatchf. 293. (d) 6 Ves. 693. (e) Mawman v. Tegg, 2 Russ. 385 ; Sheriff v. Coates, 1 R. & M. 166. {/) Bouton V. Bull, 3 Ves. 140; Harmer v. Plane, 14 Ves. 130 ; Hill V. Thompson, 3 Mer. 622; CoUard v. Allison, 4 M. & C. 487; Bickford v. Skewes, ib. 500; Stevens v. Keating, 2 Ph. 335; CaldweUa. Vanvlissengen, 9 Ha. 415. 27 [417] * 402 INJUNCTIONS TO RESTRAIN [CH. XIX. serted in one or more actions at law, and the court has no reason to be dissatisfied with the result (^), credit will be given to the title, until its invalidity, if it be invalid, has been established upon trial. Thus, in Newall v. Wilson (A), where a patent had been in force for twelve years, and the title had been maintained in two actions at law, and two other suits had also terminated in favor of the patentee, an injunction was granted pending the trial of the legal right, although a fresh fact was brought forward impeaching the novelty of the invention. But although a verdict at law may have been in favor of a patent, the court will not in general grant an in- junction unless the right is fully determined and the trial com- plete. Thus the court would not interfere after a trial at law where the defendant had obtained a rule m'si for a new trial («), or had tendered a bill of exceptions to the verdict, there being no reason to suppose that the course pursued by the defendant in tendering the bill had been adopted for the purposes of delay, or was otherwise than perfectly fair (A). But if the result of the trial at law is, in the opinion of the court, satis- factory, the court may interfere at once, although the defend- ant is proceeding to take further steps at law(Q. If the defendant has failed in his motion for a new trial, or to get the verdict set aside (»i), and a nonsuit entered (n), it is a matter of course that an injunction should issue until * 402 the hearing. An award in * favor of the validity of a patent made upon reference on a trial at law will be treated by the court as a verdict at law (o). 3. If a patent be a recent one, and its validity be denied, the court will not in general interfere by injunction until the legal right has been established (^). But it is not a matter of course (g) Hill V. Thompson, 3 Mer. 622 ; Leather, 3 Jur. N. S. 433 ; Baxter Caldwell v. Vanvhssengen, 9 Ha. 424 ; v. Combe, 1 Ir. Ch. 284, 3 Jr. Ch. 245, Davenport v. Goldberg, 2 H. & M. 282 ; 256. BoTill V. Goodier, 2 L. R. Eq. 195, (m) Neilson v. Harford, 1 Webs. (A) 2 D. M. & G. 282. " 373. O Hill u. Thompson, 3 Mer. 628. (n) Russell v. Cowley, 2 C. P. C. (k) CoUard v. Allison, 4 M. & C. 59 n. 489; Bridson t. Macalpine, 8 Beav. (o) Lister v. Eastwood, 26 L. T. 4. 232. See NewaU v. Elliott, 1 H. & C. 797. {1} Boultonu. BuU, 3Ves.l40; NeU- (p) Hill v. Thompson, 3 Mer. 626. son V. Harford, 1 Webs. 373 ; Bridson Caldwell v. Vanvlissengen, 9 Ha. 424. V. Benecke, 12 Beav. 7 ; Lister v. [418] CH. XIX.] THE INFRINGEMENT OF PATENTS. * 402 that a patentee should establish his right before applying to the court. If the question as to the validity of the patent be free from doubt and difiiculty, or a fair primd facie case be made out, the court may interfere, notwithstanding that the patent may be a recent one {q). The conduct or admissions of the defendant may amount to avi&cient primd facie evidence on which to grant an injunction, even in cases where there is a doubt as to the validity of the patent (r). 4. When two parties have obtained patents for the same invention, the court will not interfere by injunction, but will leave them to try their legal rights by sci.fa. (s). 5. Although a patentee may have obtained a verdict at law against a man for infringing his patent, another person who was not a party to the suit may contest the validity of the patent ({). 6. In order to warrant the interference of the court by in- junction in support of a patent right, it is not enough that a good primd facie title should be shown : it is also necessary that a fair primd facie case of infringement be made out. However clear and undisputed the validity of a patent may be, the court will not interfere by injunction unless a fair primd facie case of infringement can be shown («).-' Iq) Electric Telegraph Co. v. Nott, But the circuit courts of the United 2 Coo. C. C. 49, per Lord Cottenham ; States have no jurisdiction to enforce Gardner v. Broadbent, 2 Jur. N. S. specific execution of a contract for the 1041 ; Clark v. Ferguson, 1 Giff. 184 ; use of a patent right, where parties Utc Eenard v. Levinstein, 10 L. T. N. S. in the state where suit is brought. 177. Brooks v. StoUey, 3 McLean, 523. (r) Muntz V. Grenfell, 7 Jur. 121, 2 Where an injunction restraining Coo. C. C. 61 n. ; Betts v. Menzies, 3 the infringement of a patent was is- Jur. N. S. 357. sued on a final decree in a suit in equity, (s) Basket v. Cunningham, 2 Ed. and a motion was afterwards made for 137 ; Copeland v. Webb, 11 W. R. 134. an attachment against the defendant (t) Russell V. Barnsley, 1 Webs. 472 ; for violating the injunction by selling Crosekill v. Every, 10 L. T. 459. an article alleged to be an infringement (u) Hill V. Thompson, 3 Merl 626 ; of the patent, and it appeared that no Bridson v. Macalpine, 8 Beav. 230 ; such article had been sold by the de- Caldwell v. Vanvlissengen, 9 Ha. 424 ; fendant prior to the making of the Electric Telegraph Co. v. Nott, Coo. decree, and it did not appear that such C. C. 41. an article ej^isted before the making of 1 If a defendant for a valuable con- the decree, and an issue was fairly sideration, covenants not further to raised on the facts as to whether such infringe an existing patent, he will be article was an infringement of the enjoined by a court of equity from patent, it was held that such issue further infringing, unless he shows could not be disposed of on a motion, some equitable reason why he should on afSdavits, but must be determined in not be bound by his covenant. Sar- a suit brought for the purpose. Liddle gent V. Lamed, 2 Curtis, C. C. R. 340. v. Cory, 7 Blatchf. 1. [419] * 403 INJUNCTIONS TO EBSTRAIN [CH. SIX. 7. If the court is satisfied that the patent is valid, and has been infringed, it may interfere at once and grant an * 403 injunction, * without putting the patentee to estabhsh his legal right ; but if the validity of the patent or the fact of its infringement is denied, the court will seldom, however clear the case may be, grant an injunction without putting the plain- tiff to establish his legal right. The course of the court in such cases is either to protect the right by injunction pending the trial of the right, or to order the motion to stand over until the legal right has been tried. "Which of these two alternatives it shall adopt depends entirely on the discretion of the court, according to the case made out. In determining the question, the court is governed by the consideration of the comparative convenience or inconvenience from granting or withholding the injunction (a;). 8. The bill should allege the validity of the patent, the title of the plaintiff to the relief prayed, and the infringement of the patent by the defendant. The bill need not set out the patent at length, but may merely state the substance or effect of it, and the proviso requiring specification. After stating the grant, the bill must show that the patentee has performed the condition upon which he obtained his privilege, by enrpUing a specification within the time limited by the patent. It is not requisite that the specification should be set out at length. It is sufficient if the patentee alleges that he has done by his specification all that is required by the patent («/). If any part of the title of the invention or specification has been disclaimed or altered, the bill must show the nature of the disclaimer or memorandum of alteration, and must set forth sufficient of both documents to show the effect of the disclaimer, or the memo- randum of alteration on the specification (z).^ (x) Bacon v. Jones, 4 M. & C. 436 ; injunction is not granted in any case Electric Telegraph Co. v. Nott, 2 Coo. without reasonable previous notice to C. C. 63 ; Wood v. Cockerell, ib. 58 n. ; the adverse party or his attorney, of Jones V. Pearce, ib. ; Eenard v. Levin- the time and place of moving for the stein, 2 H. & M. 628 ; supra, pp. 209, same. Sts. 2d March, 1793, c. 22, s. 6. 210. Hence all injunctions are special. Perry (y) Kay V. Marshall, 1 M. & C. 373 ; v. Parker, 1 Woodbury & M. 280. But Westhead v. Keene, 1 Beav. 287. the notice maybe waived by an appear- iz) Hindm. on Pat. 311. See Fox- ance. Marsh v. Bennett, 5 McLean, well «. Bostock, 10 L. T. N. S. 144. 117. 1 In the United States courts an An injunction granted on an original [420] CH. XIX.] THE INFRINGEMENT OP PATENTS. * 404 9. If the patent privilege is vested in several persons, whether as grantees or assignees, they may be all joined as plaintiffs in the suit. Any person to whom a part of a patent has been assigned may maintain the suit alone for the protection of his * own interest in the patent; but he must, in *404 such a case, make his copartners defendants in the suit (a). If a patent privilege has been infringed by several persons jointly, they ought to be all made defendants, and one bill is sufficient ; but if several persons separately commit acts of infringement, a separate bill must be filed against each infringer (J). Where numerous parties are alleged to be infringing the patent at the same time, the patentee should select that case of infringement which he may think best in order to try the question fairly, and proceed to obtain an inter- locutory injunction, and should at the same time write to the others in simili casu, asking them whether they are willing to be bound by the detertnination in the cause, and if not, threat- ening to proceed against them all(c). The directors of a company acting as its agents who have infringed a patent should be made parties (c?). 10. A man who applies for an injunction ex parte to restrain the infringement of a patent-right must swear at the time of making the application that he believes that the invention was new, and had never been practised in the kingdom at the date of the patent. It is not enough that it was believed to be new at the time the patent was taken out ; for, although when he obtained the patent he might have very honestly sworn as to his belief of such being the fact, circumstances may have sub- sequently occurred, or information may have been since that time communicated to him, sufficient to convince him that it was not his original invention, and that he was under a mis- bill before the surrender of a patent, sion on the subject. Whipple v. Hutch- cannot be maintained upon the new inson, 4 Blatchf. 192. patent unless a supplemental bill be {a) See Westhead v. Keene, 1 Beav. filed, founded thereon. Woodworth v. 287. Stone, 3 Story, 749. (6) See DiUy v. Doig, 2 Ves. Jr. A writ of injunction, as a general 486. rule, ought to contain a concise descrip- (c) Bovill v. Crate, 1 L. R. Eq. 388. tion of the particular acts or things in (d) Betts v. De Vitre, 34 L. J. Ch. respect to which the party is enjoined, 289, 11 Jur. N. S. 9, 217. 60 that there may be no misapprehen- [421] * 405 INJUNCTIONS TO EBSTEAIN [CH. XIX. take when he made the application for the patent (e).^ If the application is made by the patentee, he must verify all the material allegations of the bill. He must verify by aflSdavit the grant of the patent, its specification according to due form, and its due enrolment. If the application is made by an assignee of the patent, he must prove the assignment by the best evidence he can procure ; and must also, if he can, procure * 405 an affidavit from *the patentee (/). If the application be made after the validity of the patent has been estab- lished at law, the af&davits must show the nature of the proceed- ing at law and the result (^) . The afiidavits must also show that an actual infringement has taken place, and must state the particulars in which the infringement consists (A), and must show that there has been no delay in making the application after knowledge of the infringement has been obtained (i}. 11. The affidavits of the defendant in opposition to the application for an injunction, or in support of the motion to dissolve, should show either that the plaintiff was not the first and true inventor, or that the invention was not new, or that the specification was insufficient, or that no infringement has taken place, or he may state any other circumstance that would show the patent to be void. If he deny the novelty of the invention or the validity of the patent, an injunction will not be granted or supported, unless the plaintiff files a very clear and distinct affidavit as to the novelty of the invention or the validity of the patent. The motion may be allowed to stand over for that purpose (Jc)."^ (e) Hill V. Thompson, 3 Mer. 624; affidavit, as well as others to the same Stm'z V. De la Eire, 5 Russ. 329 ; purpoH." Curtis on Patents, o. 408. Gardner v. Broadbent, 2 Jur. N. S. On a motion, on aflidaTits, to dis- 1041 ; Mayer v. Spence, 1 J. & H. 87. solve an injmiction in a patent suit, the (/) Bickford v. Skewes, 4 M. & C. defendants' proofs must overcome the 500. equity of the bill, and the evidence in (g) Hill V. Thompson, 3 Mer. 624. Its support, or the motion will be de- Qi) lb. ; Mayer v. Spence, 1 J. & H. nied. Sparkman v. Higgins, 1 Blatchf. 87. 205. (i) Losh V. Hague, 1 "Webs. 200. As to course of practice on motions [k) Whitton o. Jennings, 1 Dr. & for temporary injunctions, see Day v. Sm. 111. New Eng. Car Spripg Co., 3 Blatchf. 1 Eogers v. Abbott, 4 Wash. 514 ; 154 ; and as to dissolution of same, see Ogle V. Edge, ib. 584. Poor v. Carleton, 8 Sumner, 70. " And it is the usual practice, on ^ ia common cases, it is of course to moving for an injunction before the dissolve an injunction, if the answer answer has been filed, to read such an denies the whole merits ; and the plain- [422] CH. XIX.] THE INFRINGEMENT OP PATENTS. * 406 12. The defendant must answer fully the inquiries which the plaintiff is entitled to make. He cannot by denial of the plaintiffs title escape answering (T). He is bound, though he may deny the fact of infringement, to answer fully whether he uses in his process the materials mentioned in the specification ; whether he uses any additional materials ; and whether such additions, if any, make any difference in the process. But he is not, it would appear, bound to disclose the proportions in which he uses the specified materials, or what the additional materials are (m). If the subject of the patent be a machine, the patentee is entitled to have full information as to every variety of combination of machine used by the defendant by which the patent is infringed (w). A defendant is not excused from answering * fully on the ground that the * 406 validity of the patent has not been established (o). But a man who denies by his answer the fact of infringement is not bound to answer before the decree, interrogatories which assume the fact of infringement, and are immaterial to that question (p). A defendant seeking to protect himself from giving such discovery by answer is not bound to put in a plea denying infringement (§'). 13. A man who seeks the aid of the court for the protection of his patent-rights must show proper diligence in making the application. If he has openly encouraged or silently acqui- esced in the invasion of his right, or has allowed another to expend moneys or erect works upon the faith that no impedi- ment will be placed in the way of his enjoyment, his equity to the extraordinary interference of the court is gone (r).^ This doctrine is applicable not only to the case of the particular tiffwillnot be permitted upon a motion (o) Foxwell v. Webster, 10 Jur. N. to dissolve the injunction to read aflS- S. 137, 3 N. R. 103. davits in contradiction to the answer. (p) Delarue v. Dickenson, 3 K'. & J. But in cases of special injunction it is 388. otherwise; the continuance or dissolu- Iq) lb. tion of which, after the coming in of the (r) Losh v. Hague, 1 Webs. 200; answer, depends upon the sound dis- Neilson v. Thompson, ib. 275 ; Bacon cretion of the court. Poor u. Carleton, v. Jones, 4 M. & C. 436; Bridson v. 3 Sumner, 70. Benecke, 12 Beav. 1 ; Hancock v. Bew- (l) Swiubome c^. Nelson, 16 Beav. ley, John. 601 ; Bovill v. Crate, 1 L. R. 416. Eq.. 388 ; supra, pp. 201-205. - {m) Renard v. Levinstein, 3 N. R. ' Smith v. Sharp's Rifle Manuf. Co., 665, 10 L. T. N. S. 94. 3 Blatchf. 545. In) Foxwell V. Webster, 10 Jur. N. S. 137. [423] * 407 INJUNCTIONS TO EESTEAIN [CH. XIX. conduct of the patentee towards the person with whom the controversy subsists, but also to cases where his conduct with others may influence the court in the exercise of its equitable jurisdiction (s). A man whose patent-rights are invaded by several persons should give distinct notice to each to discontinue the infringement. If he proceeds against one only, without giving notice to the others, and allows a considerable period to elapse before taking steps to enforce his rights against them, he may lose his right to the protection of the court {f). The omission to- take active steps for the repeal of a subsequent patent by scire facias will not deprive a prior patentee of his right to the aid of the court, unless the subsequent patent has been put in practice (m).^ 14. On directing an issue to try whether a patent has been infringed, the court may order the defendant to admit * 407 for the * purposes of the issue the title of the plaintiff as assignee or otherwise of the patent (a;). SECTION 11. — TRIAL OF ISSUES. 1. Court may order separate issues to be tried before itself. 2. What particulars must be delivered by each party to the other before trial. 3. Evidence confined to the support of the particulars. 4. When no particulars will be required. 5. Defendant not allowed to add new issues of fact not suggested by his answer. 6. Course of proceeding where defendants are very numerous. 7. Order in which questions will be taken. 8. Practice as to evidence. (s) KundeU v. Murray, Jao. 311 ; an interlocutory injunction under an Saunders v. Smith, 3 M. & C. 711 ; extension of them without being put to supra, p. 203. a trial at law or proof of long posses- It) Smith V. South Western Railway sion. Clum v. Brewer, 2 Curtis, C. C. Co., Kay, 417. E. 506. (w) Newall v. Wilson, 2 D. M. & G. It is not a sufScient answer to an ap- 290. plication for an injunction, that the (x) Morgan v. Seaward, 1 Webs, infringement has been discontinued, uu- 167. See Pidding v. Eranks, 1 Mac. & less compensation is made for such G. 56. See, also, supra, p. 218. unlawful use. Sickels v. Mitchell, 3 1 If a patentee has estabhshed his Blatchf. 548. right to letters-patent, he is entitled to [424] CH. XIX.] THE INFRINGEMENT OP PATENTS. * 408 1. The court may, if it shall think fit, direct separate issues to be tried before itself; but the practice of having separate issues should not be regarded as peremptory, but must be re- garded merely as a convenient mode of arranging the questions to be decided before itself (j/). 2. The plaintiff must deliver to the defendant before the trial the particulars. of the breaches complained of by him, and the defendant must deliver to the plaintiff particulars of any objections to the validity of the patent on which he means to rely at the trial (s). The particulars are sufficient if, taken together with the pleadings, they give the defendant a full and fair notice of the case made against him (a). A defendant stating the objections on which he means to rely at the trial as displacing the validity of the patent, must do so with precision, and should state exactly what case the plaintiff has to meet (5). The place or places in which, and the manner in which the invention is alleged to have been used prior to the date of the patent, should be stated (c). 3. No evidence can be given in support of any alleged in- fringement, or of any objections impeaching the validity of the patent, wliich shall not be contained in the particulars delivered (ti). The * rule is applicable to trials before * 408 the court in which particulars have been ordered to be delivered, as well as to trials at law (e). Evidence cannot be allbwed in the course of the hearing before the court with- out a jury in respect of any matter affecting the validity of the patent not disclosed by the particulars of objections, although such evidence may have only come to the knowledge of the defendant since the delivery of particulars (/). But (y) Curtis v. Piatt, 11 L. T. N. S. (a) Needham u. Oxley, 1 H. & M. 260, per Lord Westbury. See supra, 248. 216-220, as to trial of issues. See, (5) Curtis w. Piatt, 8 L. T.N. S. 657; also. Addenda. See, as to forms of Daw v. Eley, 1 L. E. Bq. 38 ; Penn v. issues, Davenport v. Jepson, 1 N. R. Bibby, ih. 548. 307; Spencer v. Jack, 8 Jur. N. S. (c) 15 & 16 Vict. e. 83, s. 41. See 1165, 11 L. T. N. S. 242; Renard v. Palmeru. Wagstaff,8Exch. 840 ; Palm- LeTinstein, 11 L. T. N. S. 766 ; Penn er v. Cooper, 9 Bxch. 231 ; Penn v. V. Jack, 14 L. T. N. S. 495. Bibby, 1 L. R. Eq. 541 ; Morgan v. (z) 15 & 16 Vict. 0. 83, s. 41 ; Renard Euller, 2 L. R. Eq. 297. V. Levinstein, 11 L. T. N. S. 505. See, [d) 15 & 16 Vict. c. 83, s. 41. as to order for delivery of particulars, le) Curtis v. Piatt, 8 L. T. N. S. 657. Davenport v. Jepson, 1 N. R. 307. (/) Daw v. Eley, 1 L. R. Eq. 38 ; Renard v. Levinstein, 13 W. R. 229. [425] * 409 INJUNCTIONS TO RESTRAIN [CH. XIX. leave will be given on short notice of motion to amend the particulars, so as to introduce such newly discovered evi- dence (^). 4. If replication has been filed and the court has refused to direct an issue, the defendant will not be required to deliver particulars (A). Nor, if the novelty of a patent is denied, has a plaintiff any right to the discovery of particulars, on which the plaintiff relies as showing a user of the thing patented prior to the date of the patent («). The requirements of the statute as to the delivery of notice of objections is confined to questions affecting the validity of the patent, and does not extend to objections to the validity of the assignment (A). 5. A defendant will not be allowed to add new issues of fact not in any way suggested by his answer to the issues which have been already directed for trial (?). 6. In a case where a patentee had filed many bills against as many defendants for an alleged infringement of his patent, the court ordered the suit to be conducted by three of the defendants, representing three different classes of infringers, on behalf of the remainder, with liberty for any of the defend- ants to come in under the order (m). 7. The court may, in the exercise of its discretion, decline to consider the questions arising on the specification until the evidence on the whole case has been heard (n). At * 409 other * times the question as to the validity of the patent will be first tried (o). 8. Upon the trial of an issue the plaintiff is entitled to call witnesses in reply for the purpose of rebutting a case of prior user set up by the defendant. But after evidence has been summed up the defendant cannot adduce further evidence in answer to that given by the plaintiff Qp).^ (g) Daw V. Eley, 1 L. E. Eq. 38 ; Penn (n) Young v. Fernie, 4 N. E. 218. V. Bibby, ib. 548. (o) Foxwell v. Webster, 10 Jur. N. S. (h) Bovill V. Goodier, ib. 35. 137, 9 L. T. N. S. 528 ; Simpson v. (i) Daw V. Eley, 2 H. & M. 725 ; Holliday, 1 L. E. Ap. Ca. 315. BoviU V. Smith, 2 L. E. Eq. 459. (p) Penn v. Jack, 2 L. E. Eq. 315. (h) Chollet V. Hoffman, 7 E. & B. 686. i Proceedings for the purpose of re- (/) Morgan t. Puller, 2 L. E. Eq. straining the unlawful use of a machine 296. are instituted against the owner or (to) Foxwell V. Webster, 10 Jur. N. party concerned in the infringement, S. 137, 9 L. T. N. S. 528. See Bovill who is personally responsible for the V. Crate, 1 L. E. Eq. 388 ; supra, p. 39. violation. The offending machine is [426] CH, XIX.] THE INFRINGEMENT OP PATENTS. * 409 SECTION III. — PATENT-EIGHTS. 1. Considerations on which the validity of a patent depends. 2. What is comprehended in the word "manufacture." 3-6. What constitutes novelty, — question of fact for jury. 7. Who is " first and true inventor." 8. Ih case of discoveries accessory to the main principle made by assistants. 9. What prior user of invention will defeat patent. 10. Not necessary that use should come down. 11. Must be a user of the complete invention. 12. Effect of publication and what constitutes it. 13. Specification of a patent amounts to a publication. 14. What disclosure equivalent to a publication. 16. Question of user or publication one for jury- 16 & 17. The specification and what it must contain. 18. It constitutes no part of the patent itself, but must be read as if incorporated with it. 19. If not enrolled in court of chanceiy within a certain time patent is void. 20. Eequisites of the provisional specification. 21. Of the title of a patent. 22. Eegistration of a patent will complete an inchoate title. 23. How far patent may be assigned. 24. Effect of a license. 25 & 26. Disclaimer and its effect. 27. Patentee does not necessarily claim as new every thing which he does not disclaim. 28. Construction of a specification. 29. Ordinary rules for interpretation of written instruments govern construction of specifications. 30. Invention must be useful as well as new. 1. The validity of a patent depends on two considerations. The species of manufacture for which the patent is claimed must be a proper subject for a patent privilege, and in the next place there must be a proper specification. What is the proper subject of a patent privilege is defined by the Statute of Mon- opolies, 21 Jac. 1, c. 3', s. 6. The statute did not create, but only controlled and defined the powers which the Crown has at all times exercised in the granting of patents. These grants reached through the party legally ac- junction, the proceedings must /be countable for the wrong, and without instituted in the district in which the whose agency, directly or indirectly, machine is located. Wilson v. Sher- there would have been no ground of man, 1 Blatchf. 541. complaint. But in cases where it be- And an injunction will not be granted comes necessary to proceed directly in a district where the defendant nei- against the machine itself, as it may ther resides nor carries on his business, be in extreme cases of contumacy, or as it would be inoperative and useless. fraudulent contrivance to evade an in- Goodyear v. Chaffee, 3 Blatchf. 268. [427] * 410 INJUNCTIONS TO RESTRAIN [CH. XIX. of monopoly in respect of inventions are not by grant of the statute but by virtue of tlie prerogative. Patentees have always derived and still derive their rights not from the statute but from the grant of the Crown (q). By the 6th section of that statute it is provided that any declarations contained in the act " shall not extend to any letters-patent for the term of fourteen years for the sole working or making of any new manufactures within this realm to the true and first inventor of such manufactures which others at the time of working such letters-patent shall not use, so as also they be not contrary to the lawnor mischievous to the State, or generally inconvenient." The granting of letters-patent does not preclude the Crown from the use of the invention protected by the patent, even without the assent of or compensation made to the patentee. The Crown is nqt hound unless it declares its intention to that effect (r). * 410 2. * The word " manufacture " not only comprehends any thing made, but it also comprehends the mode, method, or process of making a thing, apart from its produce and results, such as a new machine, or a new combination of machinery, or a new process, or an improvement of an old process (s). A mere philosophical or abstract principle does not answer to the word " manufacture." The discovery of a principle or new property in matter, though it may form a valuable addition to the sum of human knowledge, is not within the policy of the patent law. Apart from its practical application in the arts or manufactures, a principle is not the subject-matter for a patent ; but as soon as a principle becomes embodied with corporeal substances in some practical mode, so as to produce a new result in the arts or manufactures, there may be a patent. The patent is granted not for the principle but for the mode of carrying the principle into effect. Whether the inventor applies a well-known principle for the first time to produce a new result, or whether he has the additional merit of discovering the principle as well as its application, makes no {q) Caldwell v. Vanvlissengen, 9 Ha. (s) Crane «. Price, 4 M. & G. 580 426 ; Feather v. The Queen, 6 B. & S. Morgan v. Seaward, 2 M. & W. 544 257. See Rex v. "Wheeler, 2 B. & Aid.' 34'5 (r) Feather v. The Queen, 6 B. & S. Ealston v. Smith, 11 H. L. 223. 257. [428] CH. XIX.] THE INFRINGEMENT OP PATENTS. * 411 difference (€). What is called the principle of a machine in reference to the patent law is not a principle or an idea: The legal meaning of the principle of a machine is its mode of operation, or that peculiar device, or manner, or combination of devices, or parts in the structure of the machine, by which a certain effect is produced (u). A result or effect cannot, any more than a principle, be the subject of a patent. A patent must be for the mode of embodying the principle so as to pro- duce a certain result or effect. It is for the discovery or invention of some practical method or means of producing a beneficial result or effect that a patent is granted. If the patent were for the result itself, all other persons would be prohibited * from making the same thing by any means * 411 whatsoever (t;). Two methods founded on the same principle may be good where the principle is applied by distinct methods and apparatus (x). The distinction between a machine and a process is that the term machine includes every mechan- ical device, or combination of mechanical powers or devices, to perform some function or produce a certain result ; but where the result or effect is produced by chemical action, by the operation or application of some element or power of nature, or of one substance to another, such methods, modes, or opera- tions are called processes. A new process is usually the result of discovery, a machine of invention (?/). 3. To come within the statute of monopolies the " manu- facture " must be " new." There cannot be a valid patent privilege for the new use of an old invention. The mere application of an old contrivance or an old process in the old way to an analogous subject, without any novelty or invention in the mode of applying the old contrivance or the old process (t) Boulton V. Bull, 2 H. Bl. 463; cott, 20 How. (Amer.) 402; Burr v. Homblower v. Boulton, 8 T. R. 95; Duryee, 1 "Wall. (Amer.) 531. Eex V. Cutter, 1 Stark. 353 ; Minter v. (v) Bean v. Smallwood, 2 Story Wells, 1 Cr. M. & E. 505 ; NeUson v. (Amer.), 408 ; Leroy v. Tatham, 14 Harford, 1 Webs. 342; Househill Co. How. (Amer.) 174; O'Keilly v. V. NeUson, ib. 683; Baxter v. Combe, 1 Morse, 15 How. (Amer.) 62; Coming It. Ch. 284 ; Crossley v. Potter, Macr. v. Burden, ib. 252 ; Baxter v. Combe, 1 244; Electric Telegraph Co. v. Brett, Ir. Ch. 284. 10 C. B. -838. {x) Hullett v. Hague, 2 B. & A. 370. (u) Barrett v. Hall, 1 Mass. (Amer.) See Seed v. Higgins, 8 H. L. 550. 470, per Story, J. ; Earl v. Sawyer, 4 (y) Corning v. Burden, 15 How. Mass. (Amer.) 1 ; M'Cormick v. Tal- (Amer.) 267. [429] * 412 INJUNCTIONS TO EESTRAIN [CH. XIX. to the new purpose, is not a valid subject-matter for a patent (z) ; but the new application of any means or contrivance may be the subject of a patent, if it lies so much out of the track of the former use as not naturally to suggest itself, but to require some application of thought and study (a). If there is some invention, skill, or ingenuity in the application, there may be a patent for a new arrangement and combination of materials, instruments, machinery, or processes formerly in use, whereby a new and useful article, or a new effect, or a better effect than before, is obtained (6). A cheaper way of using known *412 materials (c), * or a mere improvement in performing an operation well known and long practised, not amount- ing to a new mode or process of performing it (c?), or a mere slight variation, if there be no invention (e), are not within the protection of the statute ; but a discovery by which part of the machinery or one of the processes used in a manufacture may be dispensed with (/), or an addition to or an improve- ment in a process or machinery already known and in use (^), or a new process by which old materials can be applied for a new purpose in the same manufacture (li), or an alteration in the mode of manufacture (^), or a new means or contrivance for effecting an old object or attaining a well-known result (A), or an apparatus for carrying out a particular object (?), or a discovery that two or more simple substances in certain definite (z) Brook V. Aston, 8 E. & B. 478, (d) Ormson v. Clark, 14 C. B. N. S. In error, 28 L. J. Q. B. 175; Patent 475. Bottle Co. V. Seymour, 5 C. B. N. S. (e) Dobbs v. Penn, 3 Exch. 427. 164 ; Horton v. Mabon, 12 C. B. N. S. (/) EusseU v. Cowley, 1 Webs. 437, 16 C. B. N. S. 141; Harwood v. 463; Booth v. Kennard, IH. & N. 681. Great Northern KaUway Co., 11 H. L. (g) Boulton v. Bull, 2 H. Bl. 463; 654 ; Ormson v. Clark, 14 C. B. N. S. Hill v. Thompson, 8 Taunt. 375, 3 476 ; Thompson v. James, 32 Beav. Mer. 629 ; Minton v. Mower, 1 Webs. 570; Jordan u. Moore, 1 L. E. C. P. 142; Electric Telegraph Co. v. Brett, 624. 10 C. B. 838 ; Lister v. Leather, 8 E. & (a) Penn v. Bibby, 2 L. K. Ch. Ap. B. 1004. 127. (A) Hills V. Liverpool Gas-light Co. (6) Huddart v. Grimshaw, Dav. P. 9 Jur. N. S. 140. See Hills v. London C. 265 ; Hill v. Thompson, 3 Mer. 629 ; Gas-light Co., 6 H. & N. 313 ; Higgs Gamble v. Kurtz, 3 C. B. 425 ; Newton u. Goodwin, El. Bl. & El. 529. V. Grand Junction Railway Co., 5 (i) Beard v. Egerton, 3 C. B. 97. Exch. 334 n. ; Steiner v. Heald, 6 (k) Losh v. Hague, 1 Webs. 202, Exch. 607 ; Newton v. Vaucher, ib. Stevens v. Keating, 2 Webs. 183, per 859 ; Lister v. Leather, 8 E. & B. 1004. Pollock, C. B. ; Curtis v. Piatt, 11 L. (c) Horton v. Mabon, 12 C. B. N. S. T. N. S. 245. 448, per Willes, J., disapproving Crane (/) Newall v. Elliott, 10 Jur. N. S. V. Price, 4 M. & G. 580. 956 [430] CH. XIX.] THE INFRINGEMENT OP PATENTS. * 413 proportions will form a compound substance valuable for med- ical or other qualities (m), or a combination of two principles which had before been used separately in the same trade (n), or a combination of two or more old inventions (o), is a valid subject-matter for a patent (jp). 4. The rule that the application to a substance of a process which has been previously applied to an analogous substance cannot be the subject-matter for a patent does not hold where * the process is a chemical process. The law * 413 recognizes the right of an inventor who finds out and supplies for commercial purposes an article known previously only as a chemical curiosity (jq). 5. To ascertain the novelty of an invention the entire inven- tion must be taken ; and if, in all its parts taken together, it answer the purpose by the introduction of any new matter, by any new combination, or by a new application, it is a novelty within the meaning of the statute (r). 6. The novelty of a manufacture is a question of fact for the jury (0- 7. The law as declared by the statute of monopolies requires that the person to whom a patent privilege is granted should be the first and true inventor, and that the subject-matter of the patent should not be in use at the date of the patent. The publisher or introducer of a new invention into actual practice is the first and true inventor within the meaning of the statute. The source whence he may have derived his information is not a matter of which the law will take cognizance, unless there has been a fraud on the Crown (Q, or unless the knowledge (m) Bewley t>. Hancock, 6 D. M. &• (r) Newton v. Grand Junction Kail- G. 391. way Co., 5 Exch. 331 n. (n) Bovill ... Keyworth, 7 E. & B. (s) Steiner v. Heald, 6 Exch. 607 725. Spencer v. Jack, 11 L. T. N. S. 242. (o) Smith V. London and North («) Dollond's case, cited, 2 H. Bl. 470 Western Railway Co., 2 E, & B. 69. Stead v. Anderson, 4 C. B. 813. But (p) See also Minter v. Wells, 1 Cr. comp. Tennant's case, Dav. P. C. 429 • M. & R. 505 ; Muntz v. Eoster, 2 Webs. Minter v. WeUs, 1 Webs. 130 ; Cornish 93 ; Newton v. Vaucher, 6 Exch. 859 ; v. Keene, ib. 508 ; Bloxam v. Elsee, 1 Wallingtonw. Dale, 7 Exch. 888 ; Oxley C. & P. 558 ; Brunton v. Hawkes, 4 B. V. Holden, 8 C. B. N. S. 666. & Aid. 541 ; Lewis v. Marling, 10 B. & {q) Young V. Fernie, 4 Giff. 577. C. 22 ; Makepeace v. Jackson, 4 Taunt. See Sellers v. Dickinson, 5 Exch. 326; 770; Gibson v. Brand, 1 Webs. 628; Stevens v. Keating, 2 Webs. 189, per Beard v. Egerton, 3 C. B. 97 ; Smith v. Pollock, C. B. ; Hills v. London Gas- Davidson, 19 Dec. of Ct. of Sess., 2d light Co., 5 H. & N. 313 ; Bewley v. series, p. 691. Hancock, 6 D. M. & G. 391. [431] * 414 INJUNCTIONS TO RESTRAIN [CH. XIX. has been obtained from a person towards whom he stands in a confidential relation with respect to the subject of the patent (u). If the first inventor keeps his invention a secret and does not put it in practice until another makes the same invention and obtains a patent, the patent is valid and will prevail (a;). The introducer of an invention from foreign parts is a true * 414 and first * inventor within the meaning of the stat- ute (2/). Whether the knowledge of the invention may have been derived from a foreigner or an Englishman resident abroad is immaterial (s). 8. If a person has discovered an improved principle and employs engineers, agents, or other persons to assist him in carrying out that principle, and they, in the course of experi- ments arising from that employment, make valuable discoveries accessory to the main principle, and tending to carry it out in a better manner, such experiments are the property of the employer and may be embodied in the patent (a). 9. If an invention goes into public use, or has been publicly employed in actual use, a man cannot afterwards have a patent, although he is the original inventor (6). Previous user or publication in any part of the realm will vitiate a subsequent patent in England (c). It is not necessary, in order to avoid a patent, to show that the invention was in general use at the date it was taken out. It is enough that the invention was publicly in actual use («?). A single instance of the prior sale of an article is a user sufficient to invalidate a subsequent patent (e). The manufacture even of an article for the pur- (u) Milligan v. Marsh, 2 Jur. N. S. hiU Co. v. NeHson, 9 CI. & Mn. 788; 1083. Carpenter v. Smith, 9 M. & W. 300; (x) DoUond's case, oit. 2 H. Bl. 487 ; Muntz v. Foster, 2 "Webs. 93 ; Stead v. Smith V. Davidson, 19 Deo. of Ct. of Anderson, 4 C. B. 813 ; Lang v. Gis- Sess., 2d series, p. 691. borne, 31 Beav. 133. (y) Darcy v. AUin, Nov, 182, 183; (c) Brown u. Annandale,8 CI. & Kn. Edgeberry v. Stephens, 2 Salk. 447; 437. Beard p. Egerton, 3 C. B. 97; Nickels (d) Wood v. Zimmer, Holt, N. P. 0. !/. Ross, 8 C. B. 679. 82; Losh v. Hague, 1 "Webs. 202 f (z) Nickels v. Ross, ib. ; Steedman v. Cornish v. Keene, ib. 508 ; Carpenter v. Marsh, 2 Jur. N. S. 391. Smith, 9 M. & W. 300 ; HousehiU Co. (o) Allen V. Rawson, 1 C. B. 551, v. Neilson, 9 CI. & Fin. 788, 807 ; Heath 567 ; Hatton v. Kean, 7 C. B. N. S. v. Smith, 3 E. & B. 256 ; Re Adamson, 275, per Erie, C. J. 6 D. M. & G. 420; Re Newall and (6) Tennant's case, Dav. P. C. 429 ; Elliott, 4 C. B. N. S. 269. "Wood V. Zimmer, Holt, N. P. C. 82 ; (e) Morgan v. Seaward, 2 M. & "W. Cornish v. Keene, 1 "Webs. 501 ; House- 544 ; Minter v. Mower, 1 "Webs. 142. [432] CH. XIX.] THE INFRINGEMENT OP PATENTS. *416 poses of sale, and the offer of it for sale, is sufficient, although no sale has actually taken place, and it would appear to be equally so if the article be made merely as a sample (/) ; but user, in making an article which is sent abroad and not offered for sale here, is not sufficient (£). Actual public user will defeat a subsequent * patent, although the user be * 415 merely for private purposes (A), or although the user be by a foreigner, and the article be manufactured abroad (i). It is doubtful whether a patent would be valid where another man had, before the date of the patent, used the process, and brought out articles for the purposes of profit, keeping the method entirely secret (Jc). But the accidental use of a piece of machinery (forming part of a mechanical contrivance which may be afterwards applied to some ulterior purpose) without any intention of producing the result, is not such a iiser as will prevent a patent from being taken out by another per- son (T). 10. If an invention has been once in public actual use, it is not necessary, in order to invalidate a subsequent patent, that the use should come down to the time when the patent was granted : the patent will not be valid, although the user may have been long abandoned and discontinued, unless the re- collection of the previous user has been altogether lost (m). It is, on the other hand, no objection to the validity of a patent that the invention has been previously made or discovered by another person, if it has not been made public or openly used before the date of the patent (n). 11. Previous user, in order to invalidate a subseqtPent pa- tent, must be a user of the complete invention. If the inven- tion is not complete, no experiments, however nearly they may (/) Oxley V. Holden, 8 C. B. N. S. (m) Carpenter v. Smith, 9 M. & W. 666. 300 ; HousehiU Co. v. Neilson, 9 CI. & (a) Morgan v. Seaward, 2 M. & W. Fin. 788. See Muntz v. Foster, 8 Jur. 544. 206. But see Cornish v. Keene, 1 Ui) Stead v. ■Williams, 7 M. & G. 818. Webs. 44. (!) Caldwell o. Vanvlissengen, 9 Ha. (n) DoUond's case, cited, 2 H. Bl. 415. 470, 487; Hill v. Thompson, 3 Mer. (k) Heath v. Smith, 3 E. & B. 273, 626 ; Forsyth v. Riviere, 1 Webs. 97 ; per Erie, C. J. But see DoUond's case, Lewis v. Marling, 10 B. & C. 22 ; Gib- cited, 2 H. Bl. 487. son v. Brand, 4 M. & G. 198, 205, per (I) Harwood v. Great Northern Bail- Erskine, J. ; Smith v. Davidson, 19 way Co., 2 B. & S. 196 ; sed qwxre, ib. Dec. of Ct. of Sess., 2d series, p. 691 ; 231, per Exch. Ch. - See Minter v. comp. Heath v. Smith, 3 E. & B. 256. Mower, 1 Webs. 140. 28 [433] * 416 INJUNCTIONS TO EESTRAIN [CH. XIX. have approached to the discovery of the complete invention, will be of avail (o) ; but it is often extremely difficult * 416 to distinguish * accurately where the user of an inven- tion for the mere purpose of experiment stops, and the employment or user of it, as a completed invention, whicli the inventor thinks cannot be made more perfect, begins (^). Tlie abandonment of an invention raises a strong presumption that it was a mere experiment, was not complete, and had not been reduced into beneficial practice (^q). 12. A man, if he be the true and first inventor, may, not- withstanding publication, have a patent if he obtains his patent before the invention gets into use (r). But if a man be not the true and first inventor, the mere fact of antecedent publi- cation, so as to make the description of the article part of the stock of public information, will vitiate a subsequent patent on the ground of want of novelty (s). A publication takes place where a description of the invention is published in a book and is offered publicly for sale in this country. It is not at all necessary to show that a single copy of the book has been sold. As soon as the public is informed of what the invention consists, there is in point of law a complete publication of the invention. It is not necessary to show that the invention thus publicly made known has been also put into actual use (<). If the description has been published in a foreign country, there is no publication in law here so long as it remains in a foreign country ; but as soon as a description of the invention is offered publicly for sale in this country, there is in law a publication (m). An antecedent publication will not, however, (o) Carpenter v. Smith, 9 M. & W. (s) lb. The antecedent existence of 300 ; Galloway v. Bleaden, 1 Webs, an invention not shown to have been 521, 525 ; Jones v. Pearce, ib. 122 ; brought to any successful result, and Cornish V. Keene, ib. 511 ; Househill which was so far similar that, if subse- Co. V. Neilson, 9 CI. & Fin. 788 ; Re quent in date to the patent, it would Newall and Elliott, 4 C. B. N. S. 269 ; have been held a colorable and clumsy Re Adamson, 6 D. M. & G. 420. imitation for the purpose of effecting (p) Lang V. Gisborne, 31 Beav. 136, the same result, does not invalidate the per Lord Romilly, M. R. patent by anticipation. Daw v. Eley, {q) Minter v. Mower, 1 "Webs. 142; 3 L. E. Eq. 496. Jones V. Pearce, ib. 122 ; Lewis v. (t) Househill Co. v. Neilson, 9 CI. & Marling, 10 B. & C. 22 ; HousehiU Co. Pin. 788; BettSi).Menzies,10H.L. 117; V. Neilson, 9 CI. & Pin. 788 ; Newton v. Lang v. Gisborne, 31 Beav. 133. Grand Junction Railway Co., 5 Exch. («) Stead v: Williams, 7 M. & G. 818 ; 831 n. : CroU v. Edge, 9 C. B. 479; Lang v. Gisborne, 31 Beav. 133. See Oxley V. Holden, 8 C. B. N. S. 666, Re Heurteloup, 1 Webs. 553 ; Stead v. (r) Stead v. Anderson, 4 C. B. 813, Anderson, 4 C. B. 813. [434] CH. XIX.] THE INFRINGEMENT OP PATENTS. *417 avoid a subsequent patent, unless it practically describes tbe invention. The nature of the antecedent statement must be such that a person of ordinary knowledge of the subject should at once perceive and * understand, and be able * 417 practically to apply the discovery without the necessity of making further experiments and gaining further informa- tion before the invention can be made useful. If something remains to be ascertained, which is necessary for the useful application of the discovery, that affords sufficient room for a subsequent patent. The information given in the publication must for the purposes of practical utility be equal to that given by the subsequent patent. Whatever is essential to the practical working and real utility of the invention must be read out of the prior publication. If specific details are nec- essary for the practical working and real utility of the alleged invention, they must be found substantially in the prior publi- cation. Apparent generality or a proposition not true to its full extent will not prejudice a subsequent statement, which is limited and accurate, and a specific rule of application. If the prior publication neither forestalls, anticipates, nor renders unnecessary the invention, nor gives the public that peculiar benefit which they may derive from the discovery, the subject is a fit subject for a patent (v') . 13. The specification of a patent amounts to a publication. A prior specification is not to be distinguished from any prior publication contained in a book published in the ordinary man- ner. An antecedent specification will not, however, amount to an anticipation of a subsequent discovery, unless it disclose a practical mode of producing the result, which is the effect of the subsequent discovery. The mere publication in a prior specification of a notion or mere suggestion that a particular article may be made, without any statement or proof how that object can be attained, and a practical result gained, is insuffi- cient to show that a man has made a prior discovery which is in law an invention, and will not preclude a subsequent first discoverer of these means from taking out a patent (x). The {v) Betts V. Menzies, 10 H. L. 117 ; v. Fernie, 4 Giff. 577. See Househill Belt's Patent, 1 JVIoo. P. C. N. S. 49 ; Co. v. Neilson, 9 CI. & Fin. 788. HUls V. Evans, 31 L. J. Ch. 457 ; Young (x) Huddart v. Grimshaw, 1 Webs. [435] * 418 INjaNCTIONS TO RESTRAIN [CH. XIX. filing of a provisional specification describing in part an * 418 invention * which has been afterwards abandoned is not such a publication as will render a subsequent patent for the same invention void (jj"). Where two specifications of different dates relating to the same external object contain terms of art, their construction cannot be declared to be the same, though the expressions used in both are identical, with- out the meaning and use of the terms of art employed therein being first ascertained by evidence, and being shown to be the same at the date of both the specifications (2). 14. The disclosure of an invention may be equivalent to a publication. A necessary and unavoidable disclosure, if it be only made in the course of mere experiments, is not a publica- tion, although the same disclosure, if made in the cause of a profitable user of an invention, previously ascertained to be use- ful, would be a publication (a) . Nor is an experiment performed in the presence of others, Which not only turns out to be suc- cessful, but is actually beneficial in the particular instance, necessarily a publication, so as to constitute a gift of an inven- tion to the public (J). Nor is the disclosure of an invention confidentially to another (c), or the loan of an invention to a man for the purpose of having its qualities tested, and its use for some time for that purpose, in a public work-room (c?), or the fact that a model or description of a machine may have been shown to several persons, no machine, however, having been made (e), such a publication as will vitiate a subsequent patent. 15. Whether there has been a user or jiublicatiOn of an in- vention is a question of fact for the jury (/). 16. The condition of a patent privilege is that the person to 87 ; Dobb3 v. Penn, 3 Excli. 427 ; Betts (6) Re Newall and ElUott, 4 C. B. N. V. Menzies, 10 H. L. 117 ; Hills v. Evans, S. 269. 31 L. J. Ch. 457. See Eex v. Wheeler, (c) Smith v. Dickinson, 3 B. & P. 2 B. & Aid. 345 ; Stevens v. Keating, 2 630 ; Bentley v. Fleming, 1 C. & K. Exeh. 772 ; M'Cormick v. Gray, 7 H. & 587 ; Morgan v. Seaward, 2 M. & W. N. 26. 544. (y) Oxleyu. Holden, 8 C. B. N. S. (li) Bentley u. Fleming, 1 C. & K. 587, 666. per Cresswell, J. (2) Betts V. Menzies, 10 H. L. 117 ; (e) Lewis v. Marling, 10 B. & C. Hills V. Evans, 31 L. J. Ch. 457. 22. (a) Re Adamson, 6 U. M. & G. (/) Minter v. Wells, 1 Webs. 132; 420. Forsyth v. Riviere, ib. 97 ; Steiner v. [436] Heald, 6 Exch. 607. CH. XIX.] THE INPBINGEMENT OF PATENTS. * 419 whom the privilege has been granted, shall particularly describe and ascertain the nature of the invention, and show how the * invention is to be applied and carried into effect. * 419 The condition is introduced into letters-patent in order to prevent letters-patent from being granted for known things, and to secure to the public the benefit of the invention after the expiration of the time fixed for the duration of the monop- oly (^). If the terms of the specification are equivocal, the consideration upon which the monopoly has been granted fails, and the patent is void. The specification must be in such terms as to be intelligible to a workman of ordinary skill and information on the subject. " The proper test," said Lord Campbell Qi), " for a specification to show whether it is good or bad, is whether a workman of ordinary skill can, from merely reading it, make the thing of which it is the specifica- tion." The patentee must not only describe the invention, so as to enable a person who, reads it to use the invention, but must also disclose fully the best means within his knowledge of using the invention. The specification must so describe the invention, as to place the public on a footing of equality of knowledge with respect to it with the patentee (i). The whole of the patentee's knowledge (Jc), and every improvement in practice by him up to the time of the specification, must be given (J). If the specification omits any thing which the patentee knows to be useful or necessary (m), or does not communicate to the public the most beneficial mode known to him of exercising the subject of the patent privilege (»i), or if it*is calculated in any way to mislead (o) , or is on* a * 420 (o) Hills V. London Gas-light Co., 806 ; Lewis v. Marling, 10 B. & C. 22 ; 5 H. & N. 340 ; Kalston v. Smith, 9 Muntz v. Poster, 2 Wehs. 93. C. B. N. S. 117. See, also, per Jervis, (n) Bovill v. Moore, Dav. P. C. 361 ; C. J., Macr. 16. Muntz v. Foster, 2 Wehs. 93. Comp. (A) 8 E. & B. 937. Liardet v. Johnson, 1 Wehs. 54 n. (i) Rex V. Wheeler, 2 B. & Aid. 345; (o) Bovill v. Moore, Dav. P. C. 361 ; Hastings v. Brown, 1 E. & B. 454. Turner v. Winter, 1 T. R. 602 ; Savory- lit) Crossley v. Beverley, 9 B. & C. w. Price, Ry. & M. 1 ; Sturz v. De la 63. Rue, 5 Russ. 322 ; Lewis v. MarUng, 10 \l) Turner v. Winter, 1 T. R. 602. B. & C. 22 ; Muntz v: Poster, 2 Wehs. Comp. Harmer u. Plane, 14 Ves. 430; 93 ; Hastings v. Brown, 1 E. & B. 454 ; Electric Telegraph Co. o. Brett, 10 C. Hills v. Evans, 31 L. J. Ch. 457 ; Hills B. 338. ". Liverpool United Gas-light Co., 32 (m) Neilson v. Harford, 8 M. & W. L. J. Ch. 28; Simpson v. Holliday, 1 ^ ' L. R. Ap. Ca. 315. [437] * 421 INJUNCTIONS TO EESTEAIN [CH. XIX. fair interpretation equivocal in its terms (^), or is too broad and general (^q), or if it leaves the public under the neces- sity of ascertaining the matter by experiment and further inquiry (r), or does not show the public what they cannot do without infringing the patent (s), or if the process described in the specification does not produce that which the patent professes to produce (t) , the specification is bad and the patent is altogether void. If two distinct processes are described as being both efficient, and are both claimed as part of the in- vention, but one is found upon trial to be inefficient and use- less, the patent is invalid (w). If a specification claims too much it is immaterial that a skilled or practical workman would not be misled. The mere inaccurate use, however, of a word, if the sense be sufficiently clear, will not vitiate a patent (a;). Nor are errors material which appear on the face of the specification or the, drawings, and which,, as they would be immediately discovered in working out the instructions, cannot possibly mislead («/). The specification of an inven- tion which consists in the use of known materials in new pro- portions is not necessarily bad for uncertainty, though the patentee does qot limit himself to the • precise proportions recommended (2). 17. If the patent be for an improvement, or a new arrange- ment, or combination of things formerly in use, the specification must correctly describe the part, improvement, or combination, which is claimed, and must define wherein the novelty *421 consists, so that * a person of ordinary understanding and knowledge on the subject may, on reading the specification see what is claimed as new and what is old. If (p) Hastings 0. Brown, 1 E. & B. Simpson v. HoUiday, 1 L. R. Ap. Ca. 453 ; Spencer u. Jack, 11 L. T. N. S. 315. 242. (s) Morton v. Middleton, 1 Dec. of {(/) Stevens v. Keating, 2 Exeh. 772, Ct. of Sess., 3d series, p. 718. 2 Webs. 181 ; Booth v. Kennard, 2 {t) Turner v. Winter, 1 T. E. 602 ; H. & N. 95 ; Muntz v. Foster, 2 Webs. Crossley v. Potter, Macr. 244 ; Hex v. 98 ; Jordan o. Moore, 1 L. R. C. P. Cutler, 14 Q. B. 372 ; Simpson v. HoUi- 624. day, 1 L. R. Ap. Ca. 315. (?■) Morgan v. Seaward, 2 M. & W. (uj Simpson v. HoUiday, ib. 544 ; Lewis v. Marling, 10 B. & C. 22 ; {x] Miuter v. Mower, 1 Webs. 138 ; Rex V. Cutler, 14 Q. B. 372; Stevens Derosne v. Fairie, ib. 167. V. Keating, 2 Exch. 772 ; BoviU v. Key- (w) Simpson v. HoUiday, 13 W. R. wortli, 7 E. & B. 735 ; Hills ^. Liver- 577. pool Gas-Ught Co., 32 L. J. Ch. 28; (z) Patent Type Founding Co. v. Richard, John. 381. [438] CH, XIX.] THE INFRINGEMENT OF PATENTS. * 422 the specification does not ascertain and define the particular im- provement, or the new arrangement or combination, which the patentee claims, but appears upon a fair reading to claim the whole and each particular part, the patent is void, if any partic- ular part turns out to be old, or the combination itself proves to be not new (a). A claim, however, is not essential to a specifi- cation : that which appears to be part of the invention will be protected, although there be no express claim. A patent for an entire combination gives protection to each part that is new and material, without any express claim of particular parts (5). If an invention is partly original and partly communicated from a foreign country, the part communicated from the foreign country ought to be defined in the specification (c). Drawings or figures lodged with the specification may be so referred to as to be embodied in the description of the article claimed, and as to limit the claim or explain an ambiguity in a speci- fication ((^). 18. The specification constitutes no part of the patent itself, but must be read as if incorporated with it. If there be a material variance between the invention as specified and as described in the letters-patent, or if the patentee specifies for a more extensive and a different patent from that which has been granted, the patent is void (e). The novelty of every part of an invention * being the consideration on * 422 which a patent is granted, the consideration fails and the patent is vitiated, if any part of that which is claimed as a new invention be not in fact new (/). (a) Boulton v. Bull, 2 H. Bl. 463, (e) Hornblower v. Boulton, 8 T. R. 482; Harmer v. Plane, 14 Ves. 130; 95; Hill v. Thompson, 3 Mer. 629; Hill V. Thompson, 3 Mer. 629, 8 Taunt. Eex v.' Metcalf, 2 Stark. 249 ; Crossley 375 ; M'Farlane v. Price, 1 Stark. 199 ; v. Beverley, 9 B. & C. 62 ; Morgan v. Carpenter v. Smith, 9 M. & W. 300 ; Seaward, 2 M. & W. 544 ; Eex v. Kay V. Marshall, 8 CI. & Fin. 245; Wheeler, 2 B. & Aid. 345; Nickels Nickels v. Ross, 8 C. B. 679 ; Temple- «. Haslam, 7 M. & G. 378 ; Cook v. ton V. M'Farlane, 1 H. L. 595 ; Holmes Pearce, 8 Q. B. 1044 ; Croll v. Edge, 9 V. London and North Western Railway C. B. 479 ; Oxley v. Holden, 8 C. B. Co., 12 C. B. 831 ; Tetley v. Easton, 2 N.S. 666. C. B. N. S. 706 ; Bush v. Fox, 5 H. L. (/) Hill v. Thompson, 3 Mer. 628, 8 707. Taunt. 375; Brunton v. Hawkes, 4 B. (6) Lister v. Leather, 8 E. & B. 1004. & Aid. 541 ; Morgan v. Seaward, 2 M. (c) Renard o. Levinstein, 10 L . T. & W. 544 ; Kay v. Marshall, 8 CI. & N. S. 177. Fin. 245; Dobbs v. Penn, 3 Exch. 427 ; (rf) Hastings v. Brown, 1 E. & B. 454 ; Holmes v. London and North Western Morton v. Middleton, 1 Deo. of Ct. of Railway Co., 12 C. B. 831 ; Brook v. Sess., 3d series, p. 718. Aston, E. & B. 478. [439] *423 INJUNCTIONS TO RESTRAIN [CH. XIX. 19. The specification of a patent is requix'ed by a proviso in every grant to be enrolled in the court of chancery within, a certain time. If it be not enrolled within the prescribed time, the patent is void. But a patent which has become void by non-enrolment within the prescribed time may be confirmed by statute. If a patent be confirmed unconditionally, a person who has taken out a patent for the same invention, after the avoidance, but before confirmation, will be precluded after con- firmation from using his patent (g). 20. The provisional specification must describe generally and fairly the nature of the invention, but need not enter into all the minute details as to the manner in which the invention is to be carried into effect, which the complete specification is required to do (Ji). The complete specification must in all material matters agree with the provisional specification. No material addition or alteration ought to be made by which the nature of the invention as described in the complete specifica- tion can become in a material point different from the nature of the invention as described in the provisional specification (i). It is not competent to an inventor to pray in aid the provisional specification in order to explain or enlarge the meaning of the complete specification (j). The complete specification need not, however, extend to every thing included in the provisional specification (Jc). Any part of the provisional specification of a patent may be omitted in the complete specification, * 423 if there is no fraud, and the effect of * the remainder is not altered by the omission (J). In determining the priority of a patent, the filing of the provisional specification is the date of the patent (m). 21. The title of a patent must give a true idea, as far as it goes, of the nature of the invention, and should not include any thing more than what the patentee has actually invented (n). A variance between the invention as specified and as described (o) Stead V. Carey, 1 C. B. 496. ( ;) Mackclean v. Eennie, 13 C. B. (h) Re Newall and Elliott, 4 C. B. N. S. 62. N. S. 269 ; Penn v. Bibby, 2 L. R. Ch. (h) Penn v. Bibby, 2 L. R. Ch. Ap. Ap. 127. See 15 & 16 Vict. c. 83, ss. 127. 6, 8, 9. {I) Thomas «. Welch, 1 L. E. C. P. (i) Toxwell V. Bostook, 10 L. T. N. 192. S. 144, 3 N. R. 546 ; Penn v. Bibby, 2 (m) Smith v. Davidson, 19 Deo. of L. R. Ch. Ap. 127. See Newall v. Ct. of Sess., 2d series, p. 691. Elliott, 10 Jur. N. S. 954. (n) Sturz v. De la Rue, 5 Euss. 322. [440] CH. XIX.] THE INFEINGEMENT OP PATENTS. * 424 is fatal to the patent, but if the title is not inconsistent with the specification, and no fraud is practised on the Crown or the subject, it is not a fatal objection that the title is so general as to be capable of comprising a different invention from that for which the patent is claimed (o). The specification may be referred to fOr the purpose of explaining the title of the patent (p). An ambiguous title will not vitiate a patent if the ambiguity is explained by the specification (g'). The claim made in the specification will be construed with reference to the title (r). 22. Until entry of registration the original patentee is to be deemed and taken to be the sole and exclusive proprietor of the patent (s). The registration of a patent will complete an in- choate title. When the executors of a patentee assigned the patent and registered the assignment, but the probate of the will was not registered until afterwards, the title was held good (0- 23. The entirety, or a part, or share in a patent is assign- able (m). The assignee takes the legal interest, and is not to be considered merely as a licensee. In the case of a patent belonging to several persons in common, each co-owner may assign his share, * and sue for an infringement with- * 424 out joining the other co-owners (x), and can also work the patent for his own benefit, and give, it would seem, licenses to work it (y). As between assignor and assignee, the former cannot be heard to say as against the latter that the patent is invalid (s). 24. A mere license to use a patent conveys no interest in the patent : it is an excuse for an infringement and nothing more (a). (o) Cook V. Pearce, 8 Q. B. 1044 ; S. 494. See 15 & 16 Vict. c. 83, s. Sturz V. De la Rue, 5 Rusa. 322; 35. Nickels v. Haslam, 7 M. & G. 378 ; Neil- («) 15 & 16 Vict. c. 83, s. 35. son V. Harford, 8 M. & W. 806 ; Beard (x) Dunnicliff v. Mallett, 7 C. B. N. !>. Egerton, 8 C. B. 165 ; CroU v. Edge, S. 209 ; Walton v. Lavater, 8 C. B. N. 9C.B. 479: Steady. Wniiams, 2 Webs. S. 162. See Smith v. North Western 187. Railway Co., 2 E. & B. 69. (p) Sturz V. De la Eue, 5 Russ. 322. (y) Mathers v. Green, 1 L. R. Ch. g) Neilson v. Harford, 8 M. & W. Ap. 29. 806. («) Walton v. Lavater, 8 C. B. N. S. M Oxley v. Holden, 8 C. B. N. S. 162 ; Chambers v. Crichley, 33 Beav. 666. 374. s) 15 & 16 Vict. 0. 83, s. 35. (a) Bower «. Hodges, 13 C. B. 774, t) EUwood V. Christy, 18 C. B. N. per Maule, J. See Lister v. Leather, 8 E. & B. 1004. [441] * 425 INJUNCTIONS TO EESTRAIN [CH. XIX. A mere licensee cannot sue for an infringement of the patent (6), but an exclusive licensee has a right to sue in the name of the patentee (c). A license to use a patent is in many respects analogous to a lease. As between a licensee and a patentee, a patentee who has assigned his interest in a patent, and has subsequently infringed the patent, is estopped from denying his title to convey ((Z). Past payments are irrecoverable, though the patent proves invalid (e) ; but future payments may be re- pudiated (/) . A licensee is estopped from denying the validity of a patent during the continuance of the license (^), but an agreement to purchase a license will not in equity preclude a man from denying the validity of the patent (Ji) ; nor is a man who, upon an action for the infringement of a patent being brought against him, gave judgment by consent before declara- tion filed, and took a license to use the patent for a term, pre- cluded after the expiration of the term either by the * 425 license or the * judgment at law from denying the validity of the patent (i). Upon questions relating to the deter- mination of a license by breach of covenant, the analogy to a lease prevails (Jc). A license to a man to manufacture a patent article is an authority to his vendee to vend it without the consent of the patentee (V). 25. The grantee or assignee of a patent is empowered by statute to enter a disclaimer or memorandum of alteration of part of the title or specification- (m). " The spirit of the act," said Maule, J., in Eeg. v. Mill (w), " is this : that where there are objections that go only to a small and insignificant part of a patent, which if sustained would defeat it altogether, the patentee might relieve himself of the difiiculty by a disclaimer." {b\ Derosne v. Fairie, 1 Webs. 154. 8 Jur. N. S. 713 ; Crossley v. Dixon, 10 (c) Kenard v. Leyinstein, 2 H. & M. H. L. 293. Comp. Haddan v. Smith, 628. 16 Sim. 43 ; Trotman v. "Wood, 16 C. B . {d) Oldham v. Langmead, 1 Webs. N. S. 479. 291. (h) Pidding v. Franks, 1 Mac. & G. (e) Taylor v. Hare, 1 B. & P. 260. 45 ; Baxter v. Combe, 1 Ir. Ch. 284. (/) Hayne v. Maltby, 3 T. E. 438 ; (i) Goucher v. Clayton, 34 L. J. Ch. Pidding v. Franks, 1 Mac. & G. 56; 239. Tm:ner on Pat. 70. (k) Warwick v. Hooper, 3 Mac. & (g) Bowman v. Taylor, 2 A. & E. G. 60. 278 ; Baird v. Neilson, 8 CI. & Fin. 726 ; (I) Thomas v. Hunt, 17 C. B. N. S. Lawes v. Purser, 6 E. & B. 930 ; Hall 183. V. Conder, 2 C. B. N. S. 22 ; Noton v. (m) 5 & 6 Will. 4, c. 83, 7 & 8 Vict. Brooks, 7 H. & N. 499 ; Grover and c. 69, s. 5, 15 & 16 Vict. c. 83, s. 39. Baker Sewing Machine Co. v. Millard, (n) 10 C. B. 379, 395. [442] CH. XIX.] THE INFRINGEMENT OP PATENTS. * 426 The effect of a disclaimer is to strike out from the specification those parts which are disclaimed (o). A disclaimer when filed and enrolled is to be deemed and taken as part of the patent and specification (p), and operates as such as from the date of the original grant (g'). The question whether a manufact- ure is or is not new within the statute must be judged upon the specification as reduced by the disclaimer (r). If the description contained in the specification as amended by the disclaimer does not amount to a new manufacture, there is no patent (s). The act requires a statement of the reasons for making the disclaimer (f). 26. A disclaimer is bad which seeks in effect to extend the specification, or to convert a bad specification into a good one by adding words. The patent must not be made by the opera- tion of the disclaimer to include or comprehend something which was not originally contained in it. The invention claimed may be diminished or reduced, but must not be ex- tended or enlarged, and the invention which remains after the disclaimer * must have been comprised in the original * 426 specification (m). All the claiming clauses may be struck out of the specification by a disclaimer, if there remains in the body of the specification words sufficiently distinguish- ing what the invention is which the patentee claims {x). A thing may be disclaimed which leaves untouched a description which is in itself perfect, but a man cannot, under color of dis- claiming, convert a bad specification into a good one by adding words that would convert a barren and unprofitable generality into a specific and definite and practical description, or convert that which, upon the description, is not applicable to any one definite form into a description applicable to a specific and definite" mode of proceeding («/). The object of the act au- thorizing disclaimers is, that if there is in the specification a (o) Tetley v. Easton, 2 C. B. N. S. {t) 5 & 6 Will. 4, u. 83. 706. (u) Seed v. Higgins, 8 E. & B. 756, (p) 5 & 6 Will. 4, c. 83, s. 1. 8 H. L. 550 ; Foxwell v. Bostock, 10 (?) Reg. V. Mill, 10 C. B. 879. Comp. L. T. N. S. 144. Perry v. Skinner, 2 M. & W. 471 ; but (x) Thomas v. Welch, 1 L. E. C. P. see 15 & 16 Vict. c. 83, s. 39 ; see, also, 192. Stocker v. Warner, 1 C. B. 148. (y) Ealston v. Smith, 11 H. L. 223. (r) Ralston v. Smith, 11 H.L. 223. See Seed v. Higgins, 8 E. &. B. 755, (s) lb. 8 H. L. 550. [443] * 427 INJUNCTIONS TO RESTRAIN [CH. XIX. sufificient and good description of a useful invention, and that description is imperilled or hazarded by something being an- nexed to it which is capable of being severed, leaving the original description in its integrity good and sufficient without the necessity of addition, a patentee may, by the operation of the disclaimer, lop off the vicious matter, and leave the original invention as described in the specification untainted and unin- jured by that vicious excess. But the statute did hot contem- plate that a patentee should have the power under the forhi of a disclaimer, of making material additions to the original specification, so as by the aid of the corrected form of words, and the additions so made, to introduce into the specification an accurate and perfect description of an invention which can- not be found in the original specification (g). It may, however, sometimes happen, that where something is cut out some few additions may be required to render intelligible that which remains, and to that extent there would be authority by the statute to make slight additions (a). What is to be the con- sequence if the disclaimer extends the right granted by the patent is not stated in the Statute 5 & 6 Will. c. 83. * 427 Probably * it may be held that the disclaimer is inoper- ative foi*- the excess, where the wrong is clearly distin- guishable, and not that it should be void for all purposes (&). A patentee may enter a disclaimer after he has assigned all his interest in the patent (c). 27. A patentee is not understood necessarily to claim every thing as new which he does not disclaim. It is enough if the extent of the claim be intelligible upon a fair reading of the document. Parts which manifestly form no part of the inven- tion need not be disclaimed, (ci). 28. The construction of a specification, as the construction of all other written instruments, belongs to the court, but the explanation of technical terms of art, or phrases used jn com- merce, are questions of fact upon which it is the province of a (z) Ealston v. Smith, 11 H. L. 243, (c) ■Wallington v. Dale, 7 Exch. 888. 244, per Lord Westbury. (a) Lister o. Leather, 8 E. & B. (a) lb. See Thomas v. Welch, 1 1004; Morton «. Middleton, 1 Dec. of L. R. C. P. 192. Ct. of Sess., 3d series, p. 718. See Daw (6) Foxwell V. Bostook, 10 L. T. v. Eley, 8 L. R. Eq. 496. N. S. 144, per Lord Westbury. [444] CH. XIX.] THE INFRINGEMENT OP PATENTS. * 428 jury to decide (e). If a specification contains no expressions of art and commerce, but is expressed in plain and ordinary language, so that the judge is sure he understands their meaning, the construction of the specification is a pure ques- tion of law for the court. But if the specification contains expressions of art and commerce, the explanation of such terms is a question of fact for the jury, and it is for the court to apply according to the rule of law what the jury finds to be true (/). " The construction of all written instruments," said Lord Wensleydale, in Neilson v. Harford (^), " belongs to the court, whose duty it is to construe all such instruments, as soon as the true meaning of the words in which they are couched and the surrounding circumstances, if any, have been ascertained as facts by a jury ; and it is the duty of the jury to take the construction from the court either absolutely, if there be no words to be construed, as words of art or phrases used in commerce, and no surrounding circumstances to be ascer- tained : or conditionally, where these words or circumstances are necessarily referred to them " (K). The same rule applies where the question as to the validity of a * patent * 428 depends on the comparison of two specifications. If there are no expressions of art or phrases of commerce in the specifications, but they are in plain and ordinary language, the comparison of them is for the court, and the judge is bound to construe them as he does other written instruments. But if the specifications contain technical terms of art or phrases of commerce, the duty of the court is confined to giving the legal construction of the documents taken inde- pendently ; but the work of comparing the two instruments and ascertaining whether the words, as interpreted by the court and contained in one specification, do or do not denote the same external matter as the words, as interpreted and ex- plained by the court, contained in the other specification, is a matter of fact and within the province of a jury and not within the function of the court (i). Whether or not a specification (e) Hills V. Evans, 31 L. J. Ch. 459 ; (g) 8 M. & W. 806. Betts V. Menzies, 10 H. L. 117. (A) See Seed v. Higgins, 8 H. L. ( /) Thomas v. Foxwell, 6 Jur. N. S. 565 ; Simpson v. Holliday, 1 L. E. Ch. 271; Spencer v. Jack, 11 L. T. N. S, Ap. 320. 242 , (0 Bush V. Fox, 6 H. L. 707 ; Betts [445] *429 INJUNCTIONS TO RESTRAIN [CH. XIS. contains a reasonably sufficient description of an invention (le), or wlietlier drawings referred to in a specification are intelli- gible (J), is a question of fact for a jury. 29. Specifications are to be construed in a fair and candid spirit. The rules which govern the construction of specifica- tions are the ordinary rules for the interpretation of written instruments. The words of a specification ai'c to be construed according to their ordinary and proper meaning, unless it be shown by something in the context that a different construc- tion ought to be adopted. The court looks at the language in the instrument, and interprets it fairly without any reference to the object of the inquiry. If any expressions are ambigu- ous, the court will look to the real intention of the patentee ; and if it can do so consistently with the language used, ex- pound the patent favorably to the patentee. But the court will not violate the obvious meaning of the language, unless it is quite clear that the patentee intended something different from that which the expressions indicate (m). * 429 30. * To be a subject-matter for a patent privilege, an invention must be useful as well as new (n). The law does not look to the degree of utility ; it simply requires that the invention shall be capable of use, and that the use shall be such as sound morals and feelings do not discountenance. It is not necessary to establish that the invention is of such general use as to supersede all other means of accomplishing the same purpose (o). It is enough that it has no obnoxious or mischievous tendency, that it may be applied to practical use, and that so far as it is applied it is salutary (ji). There is no reason indeed to hold that the question of utility is any thing more than a compendious mode introduced in compara- tively modern times, of deciding the question whether the V. Menzies, 10 H. L. 117 ; Thomas v. ib. 331 n. ; Betts v. Menzies, 10 H. L. Foxwell, 6 Jur. N. S. 271 ; HUls v. 117 ; Simpson v. HoUiday, 13 W. R. Erans, 31 L. J. Ch. 457. 578, per Lord "Westbury. See Daw v. (k) Wallington v. Dale, 7 Exch. 888 ; Eley, 3 L. R. Eq. 496. Spencer v. Jack, 11 L. T. N. S. 242. (n) Manton v. Parker, Dav. P. C. (I) Morton v. Middleton, 1 Dec. of 332 ; Bovill v. Moore, *. 399 ; Hill v. Ct. of Sess., Sd series, p. 718. Thompson, 8 Taunt. 375, 3 Mer. 626. (m) Palmer v. Wagstaffo, 9 Exch. (o) Bedford w. Hunt, 1 Mass. (Amer.) 494 ; Elliott v. Turner, 2 C. B. 446 ; 304, per Story, J. ; Tetley u. Easton, Thomas v. Foxwell, 6 Jur. N. S. 271. Macr. 63, per Pollock, C. B. See Sellers v. Dickinson, 6 Exch. 312 ; {p) Bedford v. Hunt, 1 Mass. (Amer.) Newton w. Grand Junction Railway Co., 304, per Story, J. [446] OH. XIX.] THE INFRINGEMENT OP PATENTS. * 430 patent is void under the statute of monopolies (q}. The ques- tion of utility is for the jury (r). SECTION IV. — INFRINGEMENT OF PATENTS. 1. What constitutes infringement. 2. The user of any new or material part of a patent for the purpose of effecting the object or part of the object proposed by the patentee is an infringement. 3 & 4. Patent for combination, how infringed. 5. Making a patented article though no sale is an infringement; so malsing and export- ing to foreign country, or importing and selling here. 6. Intention not to infringe immaterial ; so is ignorance. 7. Time covered by letters-patent. 8. Functions of the court and jury on the question as to infringement. 9. Right of patentee to an injunction does not depend on the exclusive privilege, but on the character of the patent as private property. 1. There is an infringement of a patent privilege when a man uses directly or indirectly the invention which is the sub- ject of the privilege, or employs means only colorably different to produce the same result (s). Infringement involves sub- stantial identity with the subject of the privilege. It is a copy of it either without variation, or with such variation as is con- sistent with its being in substance the same thing. If the in- vention be a machine, it will be infringed by a machine which incorporates in its structure and operation the substance of the invention, that is, by an arrangement of mechanism which performs * the same service or produces the same * 430 effect in the same way or substantially the same way (t). The absence of one or more parts does not prevent a machine from being an infringement of another machine, if the two machines are in substance the same, and the principle in both is the same (m). But if a machine operates in a differ- ent manner there is no infringement, although the same gen- (q) Morgan v. Seaward, 2 M. & W. 102 ; Patent Type Founding Co. v. 544, per Lord Wensleydale. See Lewis Eichard, John. 381. V. Marling, 10 B. & C. 22 ; Bette v. (t) Morgan v. Seaward, 2 M. & W. Walker, 14 Q. B. 363 ; Stead v. WU- 544 ; "Walton v. Potter, 1 Webst. 586 ., liams, 2 Webs. 126. Newton v. Grand Junction Eailway Co. (r) Bloxamw. Else, 1 C. & P. 565; 5 Exch 331 n. ; Sellers v. Dickinson, Tetley v. Easton, Macr. 63. 5 Exch. 326 ; Bateman v. Moore, Macr (s) Crossley v. Beverley, 1 Webs. 102, per Martin, B. ; Stead u. Anderson 106 ; Jupe v. Pratt, ib. 146 ; Muutz v. 4 C. B. 838. Foster, 2 Webs. 93 ; Stevens v. Keat- («) Jones v. Pearce, 1 Webs. 124 ing, ib. 175 ; Batenaan v. Moore, Macr. Russell v. Cowley, ib. 459. [447] * 431 INJUNCTIONS TO RESTRAIN [CH. XIX. eral principle be employed to get out the same result in both machines (2;). The principle of two machines may be the same, although the forms or proportions may be different. They may substantially employ the same power in the same way, though the substantial mechanism be apparently different ; on the other hand, the principle of two machines may be very different, although their external structure may have a great similarity in many respects (j'). 2. The user of any new or material part of a patent for the purpose of affecting the object or part of the object proposed by the patentee, is an infringement (z). If the patent be for an entire combination, and part of the combination be new and part be old, the taking of a new or material part for a purpose similar or analogous to that which the patent was in- tended to effect, is an infringement, although the whole com- bination be not taken (a). But there is no infringement, although a new and material part may be taken, if it be taken for a different purpose from that for which it is used in *431 the patent (6). Nor *is there an infringement, if it be taken not for the purpose of producing a profitable matter but for another purpose (c). 3. The patent for an entire combination is not infringed by a different combination for the same object of the same ele- ments, or of equivalents for them, if not a mere colorable evasion or imitation (cZ). The principle which protects a patentee against the use by others of mechanical equivalents, is inapplicable to a case where the whole invention depends entirely on the particular machinery by means of which a well-known object is attained (e). If the patent be for a (x) Seed V. Higgins, 8 H. L. 550; la Rue u. Dickinson, j6. 739; M'Cormick BoTill V. Pirn, 11 Exch. 719; Curtis v. v. Gray, 7 H. & N. 25. Piatt, 11 L. T. N. S. 245, 35 L. J. Ch. (a) Lister v. Leather, 8 E. &B. 1004 ; 852. See Daw v. Eley, 3 L. R. Eq. Sellers v. Dickinson, 5 Exch. 312 ; 496. Thomas v. Eoxwell, 5 Jur. N. S. 37. (y) Barrett u. Hall, 1 Mass. (Amer.) (6) Newton k. Vaucher, 6 Exch. 859 ; 470; M'Cormick v. Talcott, 20 How. Thomas v. Foxwell, 5 Jur. N. S. 37; (Amer.) 402 ; Burr v. Duryee, 1 "Wall. Lister v. Eastwood, 9 L. T. N. S. 766. (Amer.) 531. (c) Higgs v. Goodwin, El. Bl. & El. (z) Smith u. London and North West- 529. See Caldwell v. Tanvlissengen,' ern Railway Co., 2 E. & B. 69 ; SeUers 9 Ha. 415. V. Dickinson, 5 Exch. 326 ; Newton v. {d) Curtis v. Piatt, 11 L. T. N. S. Grand Junction Railway Co., ib. 331 n. ; 245, on appeal, 85 L. J. Ch. 852, 1 L. BoTill V. Keyworth, 7 B. & B. 728 ; De R Ap. Ca. 337. (e) lb. [448] CH. XIX.J THE INFRINGEMENT OP PATENTS. *432 combination of two, three, or more old inventions, there is no infringement, unless the whole combination or all the parts of it have been substantially taken (/). A patent for a combi- nation of three old inventions is not infringed by the user of any two of those parts only, or of two combined with a third, which is substantially different in form and in the manner of its arrangement and connection with the others, although serv- ing the same purpose (^). 4. In Unwin v. Heath (A), a chemical patent for the use of a known substance described by its specific name, was held not to be infringed by the use of two other equally known sub- stances, which according to the evidence of scientific witnesses, would go to produce the same effect (i'). 5. The manufacture of a patented article for the purposes of sale, and the offer of it for sale is an infringement of the patent- right, though no sale has been actually effected. So, also, it would appear, is there an infringement, though the article has been made merely as a sample (Jc). The making of part of a patented article, and the exportation of that part to a foreign * country, is an infringement, if the part so made * 432 and exported is new, and is claimed as new (?). So, also, is the sale in this country of a patented article made abroad and imported (m). So, also, is the enjoyment in this country of an advantage which is derived from the invention, although there is no intention of selling the article, and although the article is here only for a temporary purpose (n). It is sufficient to constitute user of a patented article that the same sort of benefit, however temporary and indirect, has been in fact derived from it as would arise from it in its ordinary use (o). There is an infringement, if a foreign vessel lawfully entering one of our ports has, and uses on board, a patented article (p). The user, however, on board an English vessel in (/) Smith V. London and North Co., 32 L. J. Ch. 28 ; Stevens v. Keat- Western Railway Co., 2 E. & B. 69 ; ing, 2 Webs. 181. Newall V. ElUott, 10 Jur. N. S. 956; (t) Oxleyw. Holden,8 C. B.N. S.666. Finlay v. Allen, 19 Deo. of Ct. of Sess., [l) Gouoher v. Clayton, 34 L. J. Ch. 2d series, p. 1087. 239. (g) Prouty v. Ruggles, 16 Peters (m) Wilson v. Larater, 8 C. B. N. S. (Amer.), 336; Eames v. Godfrey, 1 162. WaU. (Amer.) 78. In) Betts v. Neilson, 3 D. J. & S. 82. (h) 5 H. L. 505. o) lb (n) i) See Hills v. Liverpool Gas-light (p) Caldwell v. Vanvlissengen, 9 Ha. 29 [449] * 433 INJUNCTIONS TO RESTRAIN [CH. XIX. an English colony, of an article which is the subject of a patent for the United Kingdom, is not an infringement (q'). 6. Tlie intention not to infringe a patent is immaterial, if there has been an infringement (»•). Nor is ignorance of the existence of a patent any answer to a charge of in- fringement (s).-' 7. Letters-patent protect the patentee between the date of the provisional specification and the date of the patent, but the user of the patent by a person who has made the invention contemporaneously with the patentee between the date of the provisional specification and the granting of the patent will not subject him to an action as an infringer. After the granting of the patent, however, a man has no right to interfere with the monopoly of the patentee, although he may have made the discovery contemporaneously with the patentee (i). * 438 8. * Where the question as to the infringement of a patent depends merely on the construction of the specifi- cation, it is a pure question of law for the judge ; but when it depends on other circumstances, such as the degree of dif- ference or similitude between two processes, it is a mixed question of law and fact. The question of fact is wholly for the jury, and it is for the judge to apply according to the rule of law what the jury finds to be true. This is generally done in summing up the case by the judge, he leaving the necessary facts to the jury, and giving conditionally the necessary directions in point of law. The opinion of scientific witnesses is only admissible in proof of facts. Their opinion as to whether or not there has been an infringement is not admissible (m). 415; but see now 15 & 16 Vict. c. 83, 162; Nunnr. D'Albuquerque, 34 Bear. s. 26 ; see, also, Brown v. Duchesne, 19 595. How. (Amer.) 184, where the Supreme {t) Smith v. Davidson, 19 Dec. of Court of the tJnited States disapproved Ct. of Sess., 2d series, p. 691. of the principle upon which Caldwell (m) Seed v. Higgins, 8 H. L. 550. «. Vanvlissengen was decided, and de- See Sellers v. Dickinson, 5 Exch. 323 ; clined to follow it as law. Lister v. Leather, 8 E. & B. 1004. (g) Newall (/. Elliott, 10 Jur. N. S. i A bill will lie for an injunction, if 954. the patent-right is admitted, or has been (r) Heath v. Unwin, 15 Sim. 552 ; estabUshed, upon well-grounded proof Stead V. Anderson, 4 C. B. 813 ; TJnwin of an apprehended intention of the V. Heath, 5 H. L. 505 ; but see Stevens defendant to violate the patent-right. V. Keating, 2 Webs. 188. A bill quia timet is an ordinary remedial (s) Curtis V. Piatt, 11 L. T. N. S. process in equity. Story, J., Wood- 245. See Wilson «.Lavater, 8 C.B.N.S. worth v. Stone, 3 Story, 752. See, [450] CH. XIX.] THE INFRINGEMENT OF PATENTS, * 434 9. The right of a patentee to an injunction originates in the character of the patent as private property, and not in the mere exclusive privilege. A patent therefore to keep a theatre, which is a mere privilege granted to the party, gives him no right to an injunction against other parties who are infringing the law by keeping theatres without license (d). SECTION v.— INSPECTION.— ACCOUNT. — DAMAGES, ETC. 1. When an inspection will be allowed. 2. Defendant may be ordered to deliver up samples for analysis. 3. Effect of laches. 4. Jurisdiction to order inspection enforced on courts of common law by statute. 6. When perpetual injunction is sought. 6. Eight to account incident to right to injunction. 7. Bight of tenant in common in patent. 8. Account how made up. 9. Unreasonable delay in application for account, fatal. 10. When account was only part of an agreement which the court could not wlkolly enforce it did not interfere. 11. Statute provision as to inquiry as to damages. 12. Discovery for the purposes of the account or inquiry as to damages. 13. Other relief which will be granted. 14. Account at common law by statute. 15 & 16. Costs of injunction allowed to complainant. 1. The owner of a patent is often unable to obtain clear and satisfactory proof that his patent is being infringed, though he may have fair presumptive evidence of the fact. In such cases a court of equity will, upon a fair primd facie case being made Qut, order the defendant to permit an inspection to be made of his premises and machinery by proper persons named on behalf of the plaintiff (x). The order will not go to direct the alleged infringer to allow an inspection of all machines in his stock, but will direct * him to verify on affidavit the * 434 several kinds of machines that he has sold or exposed for sale, and to produce one machine of each class for inspec- also, Poppenhusen u.N. Y. G. P. Comb. Kelsey, 22 L. J. Q. B. 84; Bennitt ». Co., .4 Blatchf. 184. Whitehouse, 28 Beav. 121. See, as to (v) Calcraft v. West, 2 J. & L. 123. the form of the order, Davenport v. (x) Morgan w. Seaward, 1 Webs. 169 ; Jepson, 1 N. R. 308. See further, as to Russell V. Cowley, ib. 458 ; Bovill v. inspection, supra, p. 328. Moore, 2 Coo. C. C. 56, n. ; Amies v. [451] *435 INJUNCTIONS TO RESTRAIN [CH. XIX. tion (y). An inspection will not be ordered unless it is material and really wanted for the purposes of the cause (a). If, however, a fair primd facie case be made out, and an inspec- tion is material for the purposes of the cause, the mere asser- tion of the defendant that there is no infringement goes for nothing. He must swear positively that injury will be done to him by his being compelled to submit to the inspection (a). The court will not, where it orders inspection, stop short of what is necessary to make the jurisdiction of the court effect- ual. If the defendant refuses to permit inspection, the court will then have to consider what ought to be done, whether it will compel inspection, and how. No such order has as yet been made, but the court can find the way to do complete justice (6). Where it is necessary, a similar inspection will be ordered to be made of the plaintiff's machinery and premises by persons named on behalf of the defendant (c). 2. An order for inspection will be made on interlocutory application (c?). The court has also jurisdiction, on motion, to order a defendant to deliver up samples for the purposes of analysis. Thus, where the plaintiffs were the owners of a patent for type-founding, and the defendant was a printer who used types alleged to be colorable imitations of the types patented by the plaintiffs. Wood, V. C, ordered the defendant to deliver up a sample for the purposes of analysis (e). *.435 3. * Laches sufficient to defeat the right to an inter- locutory injunction is no bar to an order in the same matter for inspection or a sample (/). 4. The jurisdiction to order an inspection has been conferred on courts of common law by the 15 & 16 Vict. c. 83, s. 42 (^). (.y) Singer Manufacturing Co. v. as to the form of the order, Dayenport Wilson, 13 W. K. 560, 5 N. E. 505. See v. Jepson, ib. Ellwood V. Christy, 18 C. B. N. S. 494. (d) Ennor v. Barwell, 1 D. F. & J. (z) Amies v. Kelsey, 22 L. J. Q. B. 529. See further, as to practice in 84 ; Shaw v. Bank of England, ih. Ex. cases of inspection, supra, p. 328. 26, 210 ; Meadows v. Kirkman, 29 L. (e) Patent Type Founding Co. v. 3. Ex. 205. "Walter, John. 727. Comp. Patent Type (a) Bennitt v. Whitehouse, 28 Beav. Founding Co. v. Lloyd, 5 H. & N. 192. 121 ; supra, p. 328. See, for a form of the order, Daven- (h) East India Co. v. Kynaston, 8 port v. Jepson, 1 N. E. 308. Bligh, 153 ; Patent Type Founding Co. (/) Patent Type Founding Co. v. V. Walter, John. 727. Walter, John. 730. (c) EusseU V. Cowley, 1 Webs. 459 ; [g) See Vidi v. Smith, 3 E. & B 969 ; Davenport v. Jepson, -1 N. E. 308. See, Shaw v. Bank of England, 22 L. J. [452] CH. XIX.] THE INFRINGEMENT OP PATENTS. * 435 A court of common law is not, it would appear, empowered by the clause to order a sample to be delivered up for the pur- poses of analysis (A). 5. Suits for an injunction to restrain the violation of patent- rights do not usually go to the hearing. If the interlocutory injunction is submitted to by the defendant, the plaintiff is generally satisfied with the submission, and feels himself suffi- ciently protected ; but he may, if he pleases, bring the cause to a hearing, and is entitled to a perpetual injunction. He does not, however, usually bring the suit to a hearing unless he seeks an account, or unless the defendant denies him some other relief to which he is entitled (i). 6. The right to an account of profits in respect of articles manufactured or sold in violation of a patent privilege is incident to the right to an injunction to restrain future in- fringements. There can be no account if the case for an injunction fails, or if at the hearing there is nothing on which an injunction can operate (Jc). The rule applies even although it may appear that since the notice for an interim injunction the defendant has sold articles which the court would, upon that application, have restrained him from selling, had the facts and the law been at that time sufficiently ascertained (V).^ 7. A tenant in common of a patent may work it for his own Exch. 26, 210 ; Meadows v. Kirkman, this act to increase the damages found 29 L. J. Ex. 205 ; Ellwood v. Christy, by verdicts in actions upon the case, 18 C. B. N. S. 494. but all actions shall be brought during (h) Patent Type Founding Co. v. the term for which the letters-patept Walter, 5 H. & N. 201. shall be granted or extended, or within (i) Supra, p. 227, 228. six years after the expiration thereof {h) Baily v. Taylor, 1 R. & M. 73 ; The power to increase the damages in Smith V. London and South Western actions on the case as provided in s. 59, Railway Co., Kay, 415 ; Price's Patent same act, is that the court may enter Candle Co. v. Bauwen's Candle Co., 4 judgment on the verdict for any sum K. & J. 727. above the amount found by the verdict (I) Price's Patent Candle Co. v. as the actual damages sustained, accord- Bauwen's Candle Co., 4 K. &, J. 727. ing to the circumstances of the case, 1 By the Act of Congress of July 8th, not exceeding three times the amount 1870, s. 55, it is provided, that in cases of such verdict, together with the costs. inequity " the claimant shall be entitled In Livingston v. Woodworth, 15 How- to recover, in addition to the profits to ard, TJ. S. 546, it is held that in a suit be accounted for by the defendant, the in equity for an injunction and account damages the cotnplainant has sustained of profits of a patented machine, the thereby, and the court shall assess the defendant is accountable only for what same or cause the same to be assessed profits he actually made, not for what, under its direction, and the court shall by diUgence and skill, he might have have the same powers to increase the received. To same point. Dean v. Ma- same in its discretion, that are given by son, 20 Howard, 198. [463] * 437 INJUNCTIONS TO EESTRAIN [CH. XIX. use, and keep what he can get, and is not liable to account to the other co-owners (m).^ * 436 8. * The account is of all the profits which the defend- ant has actually made by the infringement of the patent for six years prior to the filing of the bill (n). If the plaintiff be the assignee of a patent the account will only be taken from the date of the registration of the assignment (o). 9. There must be no unreasonable delay in making the ap- plication for an account. Unreasonable delay, if not satis- factorily accounted for, will be fatal to the application (p'). 10. In a case where the account was only part of an agree- ment which the court could not wholly enforce, the court would not interfere, but left the plaintiff to his remedy at law (g'). 11. An inquiry as to damages in addition to or in substitu- tion for the account may be directed under the Chancery Regulation Act, 21 & 22 Vict. c. 27 (r). The plaintiff is entitled not only to an account against the manufacturer, but also to damages against the person using the patent article wherever it be found (s). Damages may be awarded under the act, although an injunction cannot be granted in conse- quence of the expiral of the patent pending the litigation, if it appear that at the time of filing the bill there was a case for an ipjunction (i). If the patentee prefer it, the court will allow him to proceed at law for damages, instead of the account (m). 12.* The defendant must, if required to do so for the purpose of the account or the inquiry as to damages, set out the price and profit and names of the purchasers of the patent arti- cles (v), and the names and addresses of all persons * 437 from whom he has * received sums of money in respect of royalties or licenses to use the patent article {w^. (m) Mathers v. Green, 1 L. R. Ch. 289. See Needham v. Oxley, 11 "W. K. Ap. 29. 862. See as to damages, pp. 221-224. (n) Crossley v. Derby Gas-light Co., (s) Penn v. Bibby, 3 L. E. Eq. 308. 1 Webs. 119, 120, 4 L. J. Ch. N. S. 25 ; (i) Davenport v. Rylands, 1 L. E. Eq. EUwood V. Christy, 18 C. B. N. S. 494. 802. See Eox v. Dellestable, 15 W. E. (o) Ellwood V. Christy, 18 C. B. N. 194. S. 494. See, as to form of order for (u) Hills v. Evans, 31 L. J. Ch. 457. an injunction and account, Betts v. De («) Howe v. M'Kernan, 30 Beav. 547. Vitre, 34 L. J. Ch. 289. See Delarue v. Dickinson, 3 K. & J. (p) Crossley v. Derby Gas-light Co., 388. 1 Webs. 119, 120, 4 L. J. Ch. N. S. 25. (to) Crossley v. Stewart, 1 N. E. 426, (q) Kernot v. Potter, 3 D. F. & J. 7 L. T. N. S. 848. 447. 1 Clum V. Brewer, 2 Curtis, C. C. (r) Betts V. De Vitre, 34 L. J. Ch. 506. [454] CH. XIX.] THE INFRINGEMENT OP PATENTS. * 438 13. The protection which the court gives to a patentee by injunction is not limited to the prevention of the sale of articles in violation of the patent privilege during the term of the patent, but extends also to the prevention of the sale of arti- cles which have been made during the continuance 'of the patent, after the expiration of the patent Qx). The court will, if it is desired, grant a certificate in accordance with the 15 & 16 Vict. c. 83, s. 43, that the validity of the patent has come in question and has been determined in favor of the plaintiff («/). All articles in possession of the defendant made in violation of the patent may be ordered to be delivered up (s) or destroyed (a). But where a patent for a combination of machinery only has been infringed, the court will not order the machines to be broken, but will order them to be marked (J). 14. By the Patent Law Amendment Act, 15 & 16 Vict. c. 83, s. 42, courts, of common law have been empowered to order an account in patent cases (c). 15. A man whose patent-right has been infringed is not bound to rest satisfied with the promise of the defendant not to commit any further infringement, but he has a right to have an injunction (cZ), and is entitled to the costs of the in- junction (e). 16. The 43d section of the Patent Law Amendment Act, 15 & 16 Vict. c. 83, which empowers the court, at its discretion, to order the defendants to pay the costs of the plaintiff as between solicitor and client, does not apply to the costs of the first * trial (/). When the court considers the *438 plaintiff entitled to full costs as between solicitor and client, the decree or order should contain an express direction that the costs be so taxed (^). (x) Croslley v. Beverley, 1 E. & M. Eastwood, 3 Comm. L. 1249 ; Ellwood 166, n. See Price's Patent Candle Co. v. Christy, 18 C. B. N. S. 494. V. Bauwen's Candle Co., 4 K. & J. (d) Losh v. Hague, 1 Webs. 200, 2 731. Coo. C. C. 59, n. ; Geary v. Norton, 1 (y) Needham v. Oxley, 2 N. R. 388, De G. & S. 9. 11 W. R. 852. (e) Geary v. Norton, 1 De G. & S. 9. (2) Tangye v. Stott, 14 W. R. | 886. See, as to costs of the motion, supra, (a) Betts V. De Vitre, 34 L. J. Ch. pp. 214-216. See, as to costs of suit, 289. supra, pp. 228, 229. (6) Needham u. Oxley, 11 "W. R. 852. (/) Davenport w. RylandS, 1 L. R. (c) See HoUand v. Fox, 3 E. & B. Eq. 308 ; Penn v. Bibby, 3 ib. 308. 983; Vidi v. Smith, ib. 969; Lister v. (g) Lister v. Leather, 4 K. & J. 425. [455] *439 INJUNCTIONS TO EESTEAIN [CH. XX. * 439 * CHAPTER XX. INJUNCTIONS AGAINST THE INPEINGEMENT OF COPYRIGHT. SECTION I. — PRINCIPLES ON WHICH THE COURT RESTRAINS THE INPRINGEMENT OP COPYRIGHT. 1. Principles upon which court proceeds in granting injunction to restrain violation of copyright. 2. Pleading and afSdavit. 3. Parties. 4. Delay and acquiescence. 6. Conduct of plaintiff. 6. Practice of the court in dealing with the application. 7. Waiver of penalties. 8. Extent of the injunction. 9. If pirated matter can be separated, injunction will issue only as to that. 10. Injunction not granted against whole of a book until quantity of pirated matter is ascertained. 11. Fraudulent intent not material if there has been an invasion of the right, but in doubtful cases intent material. 12. Defendant not allowed to sell copies except upon consent. 1. The jurisdiction of courts of equity in restraining by in- terlocutory injunction the violation of copyright is in aid of the legal right, and is founded upon the necessity of protecting the property from irreparable damage pending the trial of the right (a) } The court proceeds on the assumption that the (a) Saunders v. Smith, 3 M. & C. How. V. S. 170 ; Wheaton v. Peters, 8 728. Peters, TJ. S. 591. And the ninth section 1 The circuit courts of the United of the act of July 8th, 1870, provides States, and any district court having that any person who shall print or pub- the jurisdiction of a circuit court, have lish any manuscript whatever, without power upon a bill in equity filed by any the consent of the author or proprietor party aggrieved, to grant injunctions first obtained (if such author or pro- to prevent the violation of any right prietor be a citizen of the United States, secured by the copyright laws of the or resident therein), shall be liable to United States, according to the course said author or proprietor for all dam- and principles of courts of equity, on ages occasioned by such injury, to be such terms as the court may deem recovered by action on the case in any reasonable. Actof Congress of July 8th, court of competent jurisdiction. As to 1870,8.106.' At common law, an author what publication before copyright is has a right to his unpublished manu- taken out will render such copyright scripts the same as to any other property invalid, see Keene v. Wheatley, 9 Amer. he may possess. Little v. Hall, 18 Law Reg. 33. [456] CH. X2.] THE INFRINGEMENT OP COPYRIGHT. * 440 person who makes the application has the right which he asserts, but needs the aid of the court for the purpose of pro- tecting his property from damage pending the trial of the right (5). He,is not required to make out a clear legal title. All that the court requires is that a case may be made out pre- senting a fair primd facie title, -whether legal or equitable, or a clear color of title with assertion of right (c).i An equitable interest, limited in point of time or extent, is sufficient (c?).^ But a mere agent to sell has not such a real interest in a work as will entitle him to relief (e). Where the plaintiff states circumstances showing a good equitable title, the court will, for the purpose of determining the fact of piracy, order the defendant to admit the legal title of the plaintiff (/). 2. If the author of the book is himself the plaintiff, he should * allege in his bill, or the affidavit accom- * 440 panying it, his title by authorship. If the book, or an edition of the work containing new matter, has been published since 5 & 6 Vict. c. 45, he must show that the book, or the edition of the book which he seeks to protect, has been duly registered at Stationers' Hall (^). In the case of books pub- lished before that act, this is not necessary Qi). If the plain- tiff claims as assignee, he must by affidavit or otherwise show that the assignment to him has been in writing (i). He must make a particular title : it is not enough to say that he acquired the copyright, but he must trace his title to the author (Jc). But if he happens to be in the situation of assignee of an assignee, it is sufficient for him to show that the assignment to himself was in writing without tracing the title through the mesne assignees from the author. If he does h) lb., supra, p. 196. (g) Sect. 24. Universities of Oxford and Cam- ih) Murray v. Bogue, 1 Drew. 353. bridge w. Richardson, 6 Ves. 689 ; Maw- (i) Morris w. Kelly, 1 J. & W. 481. man v. Tegg, 2 Russ. 391 ; Siieriff v. See Rundell v. Murray, Jac. 811. Coates, 1 R. & M. 167 ; Colburn v. Dun- (h) Gilliver v. Snaggs, 2 Eq. Ca. Ab. combe, 9 Sim. 151 ; Chappell v. Purday, 522 ; Morris v. Kelly, IJ. & W. 481. 4 Y. & C. 485 ; Bohn v. Bogue, 10 Jur. ^ If there are reasonable doubts as to 420. the validity of plaintiff's title, he will be id) Sweet v. Cator, 11 Sim. 572. required to try his title at law, and the (e) Nichol v. Stockdale, 3 Sw. 687. injunction refused. Miller v. MoBlroy, (/) Sweet V. Shaw, 8 L. J. N. S. Ch. 1 Amer. Law Reg. 205. 216 ; Sweet v. Cator, 11 Sim. 572 ; ^ pierpont v. Fowle, 2 Wood. & M. Dickens v. Lee, 8 Jur. 183 ; Bohn v. 39 ; Little v. Gould, 2 Blatchf. 181. Bogue, 10 Jur. 420. See, as to admis- sions, supra, p. 213. [45T] * 441 INJUNCTIONS TO RESTRAIN [CH. XX, SO, the proof of want of title will be thrown on the defend- ant (Z). It is not necessary that the plaintiff should specify- either in his bill or affidavits the parts of his work which have been pirated. It is sufficient to allege generally that the work of the defendant contains several passages which have been pirated, and to verify them by affidavit (m). 3. If the plaintiff has merely an equitable title, the party in possession of the legal title should be made a party (w). If there has been a complete legal assignment, the assignor should not be made a party (o). One suit cannot be main- tained against several persons for distinct invasions of copy- right (^). 4. A man who seeks the aid of the cojirt for the protection of his copyright from violation must show due diligence in coming to the court. Delay or acquiescence will be * 441 fatal to the application, * unless it can be satisfactorily accounted for (g').-^ If the conduct of the party com- plaining has led to the state of things that occasions the appli- cation, he cannot have relief (r).^ The doctrine applies not only to the cases of his conduct towards the particular person with whom the controversy subsists, but also to cases where his conduct with others may influence the court in the exer- cise of its equitable jurisdiction (s). According to 5 & 6 Vict, c. 45, s. 26, all suits and bills must be commenced within twelve months of the offence. 5. The interference of the court by injunction being founded on pure equitable principles, a man who comes to the court must be able to show that his own conduct in the transaction has been consistent with equity. A book accordingly which is itself piratical cannot be protected from invasion (t) : nor will {I) Morris v. Kelly, IJ. & W. 481. 73 ; Campbell v. Scott, 11 Sim. 31 ; (m) Sweet u. Maugham,' 11 Sim. 51 ; Buxton v. James, 5 De G. & S. 84; Hotten V. Arthur, 1 H. & M. 603. Tinsley v. Lacy, 1 H. & M. 747 ; supra, (n) Colburn v. Duncombe, 9 Sim. pp. 201, 202. 151. (r) Rundell v. Murray, Jac. 311 ; (o) Sweet ti. Maugham, 11 Sim. 51; Saunders w. Smith, 3 M. & C. 711. supra, Y,. 207. (s) Piatt v. Button, 19 Ves. 447; (p) Dilly V. Doig, 2 Ves. Jr. 486. Rundell v. Murray, Jac. 311 ; Campbell See Hudson u. Maddison, 12 Sim. 416. v. Scott, 11 Sim. 81. See further, as to parties, supra, pp. 207, (t) Cary v. Faden, 5 Ves. 24. 208. 1 See Webb v. Powers, 2 Wood. & (?) Mawman v. Tegg, 2 Russ. 393 ; M. 521. BaUy V. Taylor, Taml. 295, 1 E. & M. ^ Heine v. Appleton, 4 Blatchf. 125. [458] CH. XX.J THE INFRINGEMENT OP COPYRIGHT. * 442 the court protect by injunction a work which is of an immoral, indecent, seditious, libellous, or irreligious nature (u). 6. If the court is satisfied that the alleged title is good, and that there has been a piracy, it may interfere at once, and restrain the piracy simpliciter by injunction ; but this course will not be adopted except where the title and the fact of its violation are clearly made out. If the title is not clear, or the fact of its violation is denied, the course of the court is either to grant the injunction pending the trial of the legal right, or to direct the motion to stand over until the hearing, on the terms of the defendant keeping an account. Which of these alternations shall be adopted depends on the discretion of the court, according to the case made out (x). If irreparable damage would be caused to the property of the plaintiff by the refusal of the court to interfere, the injunction will be granted («/). If, * on the other hand, an injunction *442 would be an extreme hardship on the defendant as com- pared with the inconvenience to which the plaintiff would be put by being required in the first instance to establish his legal right, the other alternative will be adopted (g). Where the work is of a transitory or ephemeral character, greater caution is necessary in exercising the jurisdiction than when the book is of a more permanent character (a). 7. Where penalties are imposed by the Copyright Act, a man who seeks equitable relief will be required by the court, as a condition of its assistance, to waive the penalty or for- feiture (U). 8. If a case has been made out for an injunction, the court has also to determine whether the injunction shall be against the whole work or only against a part of it. The extent to which the injunction ought to go must depend in each case (u) Southey v. Sherwood, 2 Mer. wode v. Clark, 2 Ph. 157 ; M'Neil v. 435 ; Lawrence v. Smith, Jac. 471 ; Williams, 11 Jur. 344 ; supra, pp. 209, supra, p. 186. 210. {x) Wilkins v. Aikin, 17 Ves. 424; (a) Matthewson y. Stockdale, 12 Ves. Eundell v. Murray, Jac. 311 ; Sheriff 275, per Lord Eldon ; Spottiswode v. V. Coates, 1 R. & M. 159 ; Bramhall v. Clark, 2 Ph. 154, per Lord Cottenham. Melcomb, 3 M. & C. 739 ; supra, p. 209. See Ainsworth v. Bentley, 14 W. R. (y) Sweet v. Shaw, 8 L. J. Ch. N. S. 630. Comp. Ingram v. Stiff, John. 216 ; Dickens v. Lee, 8 Jur. 185. 220, n. (z) Saunders v. Smith, 3 M. & C. 737 ; (6) Colhum v. Simms, 2 Ha. 554. Bramhall v. Melcomb, ib. 739 ; Spottis- See Geary v. Norton, 1 De G. & S. 9. [459] *^443 INJUNCTIONS TO RESTRAIN [CH. XX. upon the extent of the piracy and the nature of the work (c). If the pirated matter is considerable in amount, and is so in- termixed with the original matter that it cannot be separated, the injunction will go against the whole work generally (c?). Notwithstanding that the effect may be to destroy altogether the use and value of the original matter, the court will not refrain from granting an injunction. " If," said Lord Eldon (e), " the parts which have been copied cannot be separated from those which are original without destroying the use and value of the original matter, he who has made an improper use of that which did not belong to him must abide the consequence of so doing. If a man mixes up what belongs to him with what belongs to another, and the mixture be forbidden by law, he must again separate them, and he must bear all the * 443 mischief and loss which the separation * may occasion. If an individual chooses in any way to mix my literary work with his' own, he must be restrained from publishing the literary work which belongs to me ; and if the parts of the work cannot be separated, and if by that means the injunction which restrained the publication prevents also the publication of his literary matter, he has only himself to blame" (/). If, how- ever, the pirated matter is not considerable in quantity or of much value in quality, or if, though considerable in value, it is very small in quantity, and quite out of proportion to the mass of original matter, the court will not, as a general rule, inter- fere, but will leave the plaintiff to his remedy by damages at law (^). In an American case (A) the pirated matter per- vaded the whole work, and could not be separated from the rest of the work without destroying the whole work ; but, as it was small both in quantity and value, the court would not interfere, on the ground that the remedy would be disproportionate to the injury. There may, however, be cases where the pirated matter, though small in quantity, is so material and of such value in (c) Lewis V. Tullarton, 2 Beav. 6. (/) Lewis u. rullarton, 2 Beav. 6; See Ainsworth v. Bentley, 14 W. K. Kelley v. Morris, 1 L. R. Eq. 697. 630. [g] Mawman v. Tegg, 2 Russ. 394 ; (rf) Mawman v. Tegg, 2 Russ. 387 ; "Whittingham v. Wooler, 2 Sw. 428 ; Lewie v. FuUarton, 2 Beav. 6 ; Sweet Baily v. Taylor, Taml. 295, R. & M. V. Maugham, 11 Sim. 51, 4 Jur. 479; 78; Sweety. Cator, 11 Sim. 580; Bell Kelly V. Morris, 1 L. R. Eq. 697. v. Whitehead, 8 L. J. Ch. N. S. 141. (e) Mawman v. Tegg, 2 Buss. 390. (A) Webb v. Powers, 2 Wood. & M. 498. [460] CH. XX.] THE INFRINGEMENT OP COPYRIGHT. * 444 quality that the court niay feel bound to interfere by injunc- tion (i). In a case where the pirated matter formed a very small portion of the plaintiff's work, but constituted the bulk of the defendant's work, ah injunction was granted (j). If an injunction has been granted against a work which is proposed to be published in successive numbers on the ground of piracy in the published numbers, the injunction will not be modified so as to permit the publication of the future numbers, while the question of piracy as to the others remains undetermined (7c), In a case where to grant an injunction against the whole work would be a harsh step, the court will "not suspend the publica- tion altogether until the hearing of the cause (Q. 9. * If the pirated matter can be separated from the * 444 original matter, the injunction will issue only against that particular part (m). 10. The court will not grant an injunction against the whole of a book generally until it has ascertained by inspection or otherwise the quantity of the pirated matter (w). It, was for- merly the practice of the court either to refer it to the Master to report to what extent the one book was a copy of the other (o),i or to inspect the work itself (p). At the present day the court usually takes upon itself the inspection of the book (g-). In Lewis v. FuUarton (r), a considerable quantity of matter having been shown to have been pirated, Lord Lang- dale considered himself justified in coming to the conclusion that other parts also of the work had been pirated, and granted an injunction in general terms without ascertaining the whole amount of the pirated matter. But in Jarrold v. Houlstone (s), Wood, V. 0., said the court should grudge no labor in ascer- (t) Bohn V. Bogue, 10 Jur. 420 ; (o) lb. 400. . Saunders v. Smith, 3 M. & C. 711 ; (p) Lewis v. Fullarton, 2 Bear. 6. Bramhall v. Melcomb, ib. 739 ; Bell v. (q) Murray v. Bogue, 1 Drew. 368 ; Whitehead, 8 L. J. Ch. N. S. 141. See Spiers v. Brown, 6 W. K. 352; Jarrold Campbell v. Scott, 11 Sim. 51. v. Houlstone, 3 K. & J. 708 ; Hotteu v. ( )■) Kelly V. Hooper, 4 Jur. 21. Arthur, 1 H. & M. 603. ik) Barfield v. Nicholson, 2 L. J. Ch. Ir) 2 Beav. 6. 90. is) 3 K. & J. 708. (l) Ainsworthw. Bentley, 14W.R. 630. i " Such a course is sometimes adopt- (m) Jarrold u. Houlstone, 3 K. & J. ed upon the final hearing, hut not when 708. See Emerson v. Davies, 3 Story the question comes up on a motion for (Amer.), 798; Webb w. Powers, 2 Wood, a preliminary injunction." Smith u. & M. 521. Johnson, 4 Blatohf. 252. (re) Mawman v. Tegg, 2 Euss. 898, per Lord Eldon. . [461] * 445 INJUNCTIONS TO RESTRAIN [CH. XX. taining how far the injunction should extend. The court may leave it to the defendant to state in his affidavit exactly how much and what parts he has copied. If there is no reason to suppose a fraudulent intent on his part, this course may be adopted (t}. 11. A man whose copyright has been invaded is entitled to sue either at law or in equity, although there may have been no fraudulent intention on the part of the defendant. It is enough that there has been an invasion of the right. The guilt, ignorance, or innocence of the party who invades the right is immaterial (u~). ' But if it be doubtful whether or not there has been an invasion of the right, the intent be- *445 comes a material * consideration (x). If the defendant denies that he has made any use of the prior publication, but the court is of opinion, either from the occurrence of the same blunders or misprints in both publications (3/), or from other causes, that the statement is false, the denial is evidence of a fraudulent intent, and an injunction will issue in cases in which it might not have gone had he admitted that he had made a fair use of, or been under obligation to, the prior publica- tion (2). A man who alleges that his work is a fair compila- tion and not the mere copy of another work should produce his original manuscript. The production of the manuscript is im- portant as evidence oi bona fides (a). 12. Where an injunction is granted, the defendant will not be allowed to sell copies of a book already published upon terms of keeping an account, unless the plaintiff consent (6). SECTION II. — COPYRIGHT DST GENERAL. 1. No copyright at common law. 2. Copyright defined. 3. Who are entitled to copyright. (t) Mawraan v. Tegg, 2 Russ. 395, M Longman v. Winchester, 16 Ves. 404; Jarrold v. Houlstone, 3 K. & J. 272; Mawman a. Tegg, 2 Russ. 394 708. Spiers v. Brown, 6 W. E. 352. (m) Reade v. Conquest, 11 C. B. N. (s) Spiers v. Brown, 6 W. R. 352 S. 479 ; Murray v. Bogue, 1 Drew. Jarrold v. Houlstone, 3 K. & J. 722. 353; Keade v. Lacy, 1 J. & H. 524; (a) Spiers v. Brown, 6 "W. R. 352 Scott V. Stanford, 16 L. T. N. S. 51. Hotten v. Arthur, 1 H. & M. 603. (x) See Webb v. Powers, 2 Wood. (6) Sweet v. Maugham, 11 Sim. 51. & M. (Amer.) 497. [462] CH. XX.] THE INFRINGEMENT OP COPYRIGHT. * 446 1. The question has been the subject of much discussion (c), but it may be now considered as established that there is no copyright in a published work at common law, and that copy- right exists only by statute (t^). 2. Copyright within the meaning of the copyright statutes and according to the legal acceptation of the term is the exclu- sive right or monopoly of multiplying a work of literature or art after it has been published: the right, in other w6rds, of preventing all others from copying, by printing or otherwise, a work of * literature or art which the * 446 author has published (e). The right commences by publication (/). 3. The object of the copyright statutes being to encourage literature and art among British subjects, all persons who by residence within the British dominions at the time of publica- tiou owe the Crown a temporary allegiance, come within the description of British subjects for the purposes of copyright. An alien friend coming into one of the British colonies, and residing there during and at the time of publication in this country of a work first published in the United Kingdom, is entitled to copyright in the work so published, no matter where his work was composed, or whether he took up his residence solely with a view to publication (^). But if at the time of publication a foreigner is not within the British dominions, he is not a person whom the ordinary copyright statutes are meant to protect (li). A British author, however, need not be within the dominions at the time of the publication of his work. If the work is first published within the dominions, he may have copyright in it, though he be resident abroad at the time of publication (i). A work must be printed as well as published here, otherwise it will not be protected Qe). (c) See Millar v. Taylor, 4 Burr. (^r; OUendorf v. Black, 4 De G. & S. 2303 ; Donaldson v. Beckett, ib. 2408, 2 209 ; Law v. Eoutledge, 1 L. R. Ch. Bro. P. C. 129 ; Cadell v. Robertson, 5 . Ap. 42. Pat. Sc. Ap. 493. (h) See Jefferys v. Boosey, 4 H. L. (d) Jefferys v. Boosey, 4 H. L. 833; . 815; but see Low v. Routledge, 33 L. Reade v. Conquest, 9 C. B. N. S. 768. J. Ch. 717,;jer Kindersley, V. C. See Wheaton y. Peters, 8 Pet. (Amer.) (i) Jeflferys «. Boosey, 4 H. L. 815. 591. See Boucicault v. Delafield, 1 H. & M. (e) Jefferys v. Boosey, 4 H. L. 920, ,597. per Lord Wensleydale. (k) 4 H. L. 984, per Lord St. Leonards. (/) Ib. 815. [463] ' 447 INJUNCTIONS TO RESTRAIN [CH. XX. SECTION III.— LITERARY COPYRIGHT. 1. Provisions of statute giving copyriglit. 2. Limitation of copyright. 3. Entry in the register book. 4. What is to be registered. 6. Who may enter. 6-8. Requisites of an assignment. 9. Assignment by foreigner. 10. Agreement to publish not an assignment. 11. License to publish not an assignment. 12. Agreements between publisher and author. 13. Copyright is personal property. 14. Subject-matter of copyright. 15. Translation of foreign work may be subject of copyright. 16. No copyright in work of immoral, indecent, seditious, libellous, or irreligious nature. 17. What is an infringement. 18. Extracts or quotations from copyrighted book not forbidden. 19. To what extent allowable. 20. Effect of acknowledgment of extract. 21. Colorable imitations of publication most frequent form of piracy. 22. Fair and bond fide abridgment of a book not a piracy. 23. Digests of reports, when not piracy. 24 & 25. Translation of a work not copyrighted in country where translation is published no infringement. 26. Law as to additions and improvements. 27. Piracy of musical compositions. 28 & 29. Multiplication of copies. 30-33. Copyright in articles contributed to periodicals. 34. Copyright in lectures by statute. 35. Crown copyright. 36. University copyright. 37 & 38. Reports of judicial proceedings. 1. Copyright in literature depends upon the 5 & 6 Vict, c. 45.^ By the second clause of the act the word " book " in- cludes every volume, division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan separately published. The word " copyright " is defined to be the sole exclusive liberty of printing or otherwise multiplying * 447 copies of any subject to * which the said word is applied in the act. The act does not extend to prints or designs separately published ; but when prints and designs form part of a work in the text of which a man has copyright, the right extends to them as well as to the letterpress (J). (I) Bogue V. HouUtone, 5 De G. & S. i Act of Congress of July 8, 1870. 275. [464] OH. XX.] THE INFEINGEMENT OF COPYRIGHT. * 448 2. Copyright in books published in the lifetime of the author is the property of the author or his assigns during the life of the author and seven years afterwards, or for forty-two years if the latter be the longer term. The copyright in books published after the death of the author lasts for forty-two years (m).^ 3. The proprietor of a copyright in any book published since the 1st July, 1842, cannot maintain an action or suit in respect of the infringement of his right, unless he shall before com- mencing the action or suit have caused an entry of the book to be made in the register book at Stationers' Hall, pursuant to the Act 5 & 6 Vict. c. 45 (n). Under the former Copyright Acts this was not required (o). An entry must be made of the title of the first publication, and of the names and places of abode of the publisher and of the proprietor of the copy- right (jf). An entry is defective where the date of the publi- cation is entered inaccurately, or the publishers are not entered accurately, either by their individual names or by the name of the firm (o[). The address of his publishers is a sufficient de- scription by an English author of his place of abode, so as to satisfy the provisions of s. 13 when he is out of England and has no place of abode there (f). Neglect on the part of the officials at Stationers' Hall to register the book may, it would seem, deprive an author of the benefit of the statute (s). 4. A separate article for a periodical is not a book to be registered within the clause (t). The protection afforded to the title of a newspaper or periodical by registration is not prospective, and only dates from the time of the first publication of such newspaper * or periodical (m). * 448 Copyright cannot be acquired in the mere title of a book by registration under the statute (w). 5. Any person associated by the proprietor of a copyright with himself in an entry in the register book has &primd facie (m) 5 & 6 Vict. c. 45, o. 3. («) Correspondent Newspaper Co. v. In) Sect. 24. Saunders, 13 W.R. 804, 11 Jur. N.S. 540 (o) Murray K. Bogue, 1 Drew. 364. (v) Maxwell v. Hogg, 2 L. R. Ch (p) 5 & 6 Vict. c. 46, s. 13. Ap. 307. (g) Loww.Routledge,33L. J. Ch.717. * In America copyright extends ir) Lover!). Davidson,lC.B.N.S. 182. twenty-eight years, with continuance (s) CasseU v. Stiff, 2 K. & J. 279. upon certain conditions for fourteen \t) Murray v. Maxwell, 1 J. & H. years more. Act of Congress of July 312; 8, 1870, §§ 87, 88. 30 [465] *449 INJUNCTIONS TO RESTRAIN [CH. XX. right to sue jointly with him ia respect of an infringement (x). Omission to register, when relied on as a defence to a suit for infringement, should be distinctly pleaded (jy). 6. The assignment of a copyright is not valid unless it be in writing.! T^g j-^ie is the same whether the assignment was made before (s) or has been made since the Act 5 & 6 Vict. ' c. 45 (a). If the assignment was made before the 5 & 6 Vict. c. 45, attestation is not necessary (J) ; nor is attestation, it would appear, necessary since the passing of the act (c). 7. A registered proprietor may assign his interest or any portion of his interest in a copyright by making an entry in the book of registry pursuant to the act (d'). But the requi- sitions of the act must be strictly complied with. An assignee by entry has no title to sue under the act, unless the requisi- tions of the act as to the entry of proprietorship have been duly obseryed. If the entry of proprietorship is insufficient, there is no valid assignment by subsequent entry (e). 8. It has been denied that there can be a partial assign- ment of a copyright (/) ; but a man may, under 5 & 6 Vict. c. 45, s. 13, assign a portion of his interest in a copyright (^). 9. A foreign author resident abroad cannot, by assigning a published work according to the law of his own * 449 country, * give the assignee a title which will be recog- nized in this country (A). (x) Stevens V. Wildy, 19 L. J. Ch. 190. printed before the assignment and re- (y) Chappell W.Davidson, 18 C.B. 194. maining in his possession. Taylor v. (z) Power V. Walker, 3 M. & S. 7 ; PiUovr, 7 L. K. Eq. 418. Morris v. Kelly, 1 J. & W. 481 ; Cle- (A) Jefferys v. Boosey, 4 H. L. 815. menti v. Walker, 2 B. & C. 861. i The provision of the tfnited States (a) Cassell V. Stiff, 2 K. & J. 279, 5 statute is, " That copyrights shall be & 6 Vict. c. 46, s. 15. assignable in law, by any instrument (6) Cumberland v. Copeland, 1 H. & of writing, and such assignment shall C. 194. be recorded in the ofiSce of the Libra- (c) See, — ib. — ; but see 8 Jur. N. S. rian of Congress within sixty days after Ap. 148. its execution, in default of which it (d) Sect. 13. See Shepherd w. Con- shall be void as against any subsequent quest, 17 C. B. 441. purchaser or mortgagee for a valuable (e) Low V. Boutledge, 33 L. J. Ch. 717. consideration without notice." Act of (/) See Jefferys v. Boosey, 4 H. L. July 8, 1870, s. 89. In Stephens v. Cat 815, per Lord St. Leonards ; Lover v. dy, 14 How. N. S. 528, it was doubted Davidson, 1 C. B. N. S. 182 ; but see by Nelson, J., whether a transfer of a Sweet V. Cator, 11 Sim. 573. copyright even by a sale, under a decree (g) See Howittu. Hall, 10 W. K. 381. of a court of chancery, would pass the In the absence of special contract to title ^o as to protect the purchaser, un- the contrary, the assignor of a copy- less by a conveyance, in conformity right is entitled, after the assignment, with the requirement of the statute ; to continue selling copies of the work and in this case it was held that the [466] CH. XX.J THE INFRINGEMENT OP COPYRIGHT. * 450 10. An agreement between publishers and an author to print and publish a work at their own risk, on the terms of dividing equally with him half profits, and stipulating that if another edition should be required the author should make all necessary additions and alterations, is an agreement of a per- sonal nature, and not an assignment of the copyright («'). 11. A license to publish is not an assignment of a copy- right (k). The author or proprietor of a manuscript may, at common law, license another by parol to print and publish it, but the licensee cannot maintain an action against a third person, because he has not a legal title (^) ; but in equity a ^arol license to publish given by the author, and followed by his acquiescence, may deprive him of his right to an injunc- tion to restrain the licensee from publishing the work (m'). 12. An author who has sold one edition of his work to a publisher may not, until that edition has been sold off, pub- lish another edition with passages identical with those to be found in the edition which has been sold (n). 13. Copyright is declared by the statute to be personal property (o). The right is not personal to the author or his assigns, but descends to his legal personal representatives. They may, after his death, acquire a copyright in writings or letters which the author or writer never intended to publish (p) . Nor is the privilege confined to cases where there is a known author. A man who has found a manuscript in his * ancestor's repository, or got a gift * 450 of it, may have a copyright in it, although he cannot tell who was the author (q). 14. To come within the protection of the copyright statutes, sale of a copperplate for a map, on an Piatt v. Button, 19 Ves. 447. See Fol- execution against the owner of the som v. Marsh, 2 Story (Amer.), 109. copyright of the map, does not pass to (n) Sweet v. Cator, 11 Sim. 572. the purchaser a right to use the copper- See further, as to agreements between plate to print such maps. an author and a publisher, Colburn v. (i) Stevens v. Benning, 6 D. M. & Simms, 2 Ha. 543 ; Reade v. Bentley, 6. 223. See Eeade v. Bentley, 3 K. & 3, KJ & J. 271, 4 K. & J. 656; Cox v. J. 271, 4 K. & J. 656. Cox, 11 Ha. 118 ; Howitt v. Hall, 10 (k) Eeade v. Bentley, 4 K. & J. 656. W. R. 381, 6 L. T. N. S. 348. See Power v. Walker, 3 M. & S. 7. M 5 & 6 Vict. u. 45, s. 25. {I) Power V. Walker, 4 Camp. 9. (p) Dodsley v. M'Parquhar, Mor. See Curtis on Copyright, 224. Diet, of Dec, vols. 19, 20, p. 8308. (m) Eundell v. Murray, Jac. 311; (?) Maclean v. Moody, 20 Dec. of Ct. of Sess., 2d series, p. 1154. [467] * 451 INJUNCTIONS TO BESTEAIN [CH. XZ. a work need not consist of new or original matter, nor is the privilege confined to works of literary merit. A mere com- pilation of old materials, or of materials which are common to all men, and are merely the result of inquiry and industry, may be the subject of copyright (r) , such as a road or guide book (s), a book on chronology (i), a directory (m), a book of statistics (v'), a trade (a;) or shipping list (j'), an analysis of acts of Parliament with appendices (s), a topographical dictionary (a), a court calendar (6), a spelling-book (c), a book of elementary lessons in arithmetic {dy or science (e), an annotated catalogue (/) ; ad- ditions, corrections, or original notes to an old work (^) ; reports of cases at law (A), marginal notes to reports of cases at law (i), or a collection of notes to a book (A), or of letters of a familiar description, or of letters of business (Z).i A mere collection of receipts for cooking pannot, it has been said, be the * 451 subject of * copyright, as it requires no mental labor (m) ; but the authorities do not support the dictum. 15. The translation of a foreign work which is not protected in this country may be the subject of copyright (m). But a work which has been previously published abroad cannot be after- wards the subject of a copyright in this country (o). There (r) Barfield v. Nicholson, 2 Sim. & (A) Sweet v. Sliaw, 1 Jur, 917 ; Sweet St. 7, 2 L. J. Ch. 90 ; Lewis v. PuUar- v. Maugham, 11 Sim. 51 ; Saunders v. ton, 2 Bear. 6 ; Jarrold v. Houlstone, 3 Smith, 3 M. & C. 729 ; Hodges v. K. & J. 708 ; Kelly v. Morris, 1 L. R. Welsh, 2 Ir. Eq. 266. Eq. 697. {{) Stevens v. Wildy, 19 L. J. Ch. (s) Gary v. Longman, 1 East, 358. 190 ; Sweet v. Benning, 16 C. B. 459. (t) Trusler v. Murray, 1 East, 363, (/c) Gray v. Russell, 1 Story (Amer.), n. ; Kelly v. Morris, 1 L. R. Eq. 697. 11. (u) Kelly V. Hooper, 4 Jur. 21. (l) Pope v. Curl, 2 Atk. 341 ; Folsom [v] Scott V. Stanford, 3 L. R. Eq. v. Marsh, 2 Story (Amer.), 100. 718 ; Cornish v. Upton, 4 L. T. N. S. 862. (m) Rundell v. Murray, Jac. 314. See (x) Cornish v. Upton, ib. Wyatt v. Barnard, 3 V. & B. 77. ^ (y) Maclean v. Moody, 20 Dec. of Ct. (n) Wyatt v. Barnard, 3 V. &.B. 77. of Sess., 2d series, p. 1154. (o) Clemeuti v. Walker, 2 B. & C. I Alexanders. M'Kenzie, 9 j6.p.748. 861; Guichard v. Mori, 9 L. J. Ch. (a) Lewis v. Fullarton, 2 Bear. 6; 227; Chappell ?;. Purday, 4 Y. & C. 485. Kelly V. Morris, 1 L. R. Eq. 697. i This subject is discussed in Atwill (6) Longman v. Winchester, 16 Ves. v. Perrett, 2 Blatchf. 89, and it is held 269. that under the act of Feb. 3d, 1?31, the (c) Lennie v. Pillans, 5 Dec. of Ct. author must, by his own intellectual of Sess., 2d series, p. 417. labor applied to the materials of his {d) Emerson v, Davies, 3 Story composition, produce an arrangement (Amer.), 768. or compilation new in itself. Gray ». (e) Jarrold v. Houlstone, 3 K. & J. Russell, to same point, 1 Story,ll ; Pier- 708. pont V. Fowle, 2 Wood. & M. 23 ; Emer- (f) Hotten V. Arthur, 1 H. & M. 603. son v. Davies, 3 Story, 778. As to an Iff) Tonson v. Walker, 3 Sw. 672, cit." author's rights in letters, private or on 4 Burr. 2325 ; Gary v. Longman, 1 East, business, see Folsom v. Marsh, 2 Story, 358 ; Mason v. Murray, cit. ib. 100. [468] CH. XX.J THE INFRINGEMENT OP COPYRIGHT. * 452 may, however, be copyright if a work be published simulta- neously here and a^)road (p). To come within the statute the book must be published in this country (^). 16. If a publication be of an immoral, indecent, seditious, libellous, or irreligious nature, there can be no copyright (r). The labor expended on a work of this nature is not labor in respect of which a right of property can exist (s). Upon an analogous principle no copyright exists in a book, though its contents be innocent, which purports falsely to have been written by an author of reputation, and seeks under color of such a representation to impose on the public ; but the mere publication of a book with a false title-page or a false preface is not material if there be no intention to defraud the public and make a profit by the false representation (<). 17. The author of a book protected by copyright has the exclusive right to publish and sell every part of it. A subse- quent writer may make a fair and legitimate use of a prior publication, but he may not copy or imitate it to such an extent as to damage the property of the author in his copy- right. If so much is taken that the value of the original is sensibly diminished, or the labors of the original matter are substantially and to an injurious extfent appropriated by- another, that is sufficient in point of law to constitute a piracy («).-' To be a piracy it is not * necessary that *452 the later work should be a substitute for the original work (v). All that is necessary is that so much should be taken as to affect sensibly the property of the original writer (a;). Whether the use which has been made of a prior work is a fair and legitimate use, or is substantially unlawful, is a question (p) Boosey !). Purday, 4 Exch. 145; (wjEolsomti. Marsh, 2 Story (Amer.), Cooks V. Purday, 5 C. B. 860. 115, per Story, J. ; Scott v. Stanford, 3 (6) Clementi v. Walker, 2 B. & C. L. K. Eq. 718. See Campbell v. Scott, 861. 11 Sim. 31 ; Lewis t'. FuUarton, 2 (r) Stockdale v. Onwhyn, 5 B. & C. Bear. 6 ; Jarrold v. Houlstone, 3 K. & 173 ; Walcot v. Walker, 7 Ves. 1 ; J. 716. The extent of the use which Southey v. Sherwood, 2 Mer. 435 ; may be rightfully made of a copyright- Lawrence V. Smith, Jac. 471; Lord ed book is discussed in Morris «. Wright, Byron v. Dugdale, 1 L. J. Ch. 239. 5 L. R. Ch. Ap. 279. (s) Macaulay v. Shackell, 1 Bligh, («) Bohn v. Bogue, 10 Jur. 420. See N. S. 96, 127, per Lord Eldon. But see Sweet v. Shaw, 1 Jur. 917. Curt, on Copyright;, 169 ; 2 Story, Eq. (x) lb. Jur. 938. 1 Eolsom v. Marsh, 2 Story, 115 ; (i) Wright V. Tallis, 1 C. B. 893. Emerson v. Davies, 3 Story, 768. [469] * 453 INJUNCTIONS TO RESTRAIN [CH. XX. not SO much of kind as of degree, and depends upon the cir- cumstances of each particular case (y). In many cases it is extremely difficult to draw the line between what is a legitimate and what is an unlawful and colorable use of a prior work (2). The question of piracy turns most commonly upon the extent or quantity of the materials taken, but it does not depend necessarily upon the quantity. " We must often," said Story, J., in Polsom v. Marsh (a), " in questions of the sort look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profit, or supersede the object of the original work. Many mixed ingredients enter into the discussion of such questions. In some cases a con- siderable portion of the materials of the original work may be fused into another work so as to be undistinguishahle in the mass of the latter which has other professed and obvious ob- jects, and cannot fairly be deemed a piracy ; or they may be inserted as a sort of distinct and mosaic work into the general texture of the second work, and constitute the peculiar excel- lence thereof, and then it may be a clear piracy. If a person should, under color of publishing ' elegant extracts ' in poetry, •include all the best pieces at large of a favorite poet whose volume was secured by copyright, it would be difficult to say why it was not an invasion of that right, since it might consti- tute the entire value of the volume." — "One writer," said Lord Cottenham in Bramhall v. Melcomb (6), " might take all the vital parts of another's work, though it might be * 453 but a small * proportion of the work in quantity. It is not always quantity but value that is looked to"(c). 18. Extracts or quotations from a book which is protected by copyright are not forbidden by the law. If they are taken for the purposes of criticism, comiient, or illustration, consid- erable license is allowed (c?), for the selection of extracts for {y) Sweet v. Benning, 16 C. B. 485, Murray v. Bogue, 1 Drew. 369 ; Tins- per'Maxde, J. ley v. Lacy, 1 H. & M. 747 ; Gray v. U] lb. ■ Eussell, 1 Story (Amer.), 11; Scott v. (a) 2 Story (Amer.), 100, 116. Stanford, 3 L. B. Eq. 718. {b) 3 M. & C. 738. {d) Koworth v. Wilkes, 1 Camp. 94 ; (c) Campbell v. Scott, 11 Sim. 81 ; Whittingham v. Wooler, 2 Sw. 128. [470] CH. XS.] THE INFRINGEMENT OP COPYRIGHT. * 454 such purposes, so far from being injurious, is often beneficial to the sale of the books from which they are taken (e). But there is a limit to the selection of passages even for the pur- poses of criticism or comment, though it is not easy to define that limit (/). If the selection is made fairly for the purpose ' of criticising or questioning the opinions expressed therein, or of explaining the criticism, passages of considerable length or of much value may be taken (^) ; but a reviewer may not, under the pretence of criticism, appropriate a large or vital part of the book of another. If the citations, though purport- ing to be made with a view to criticism, go in part to supersede the original work, and to substitute the review for it, such a use is deemed in law a piracy (A). Thus where a man had published a book giving specimens of modern English poetry, with an original essay and biographical notices, and inserted extracts from a poem written by Campbell, an injunction was granted against the publication (i).^ 19. Extracts or quotations may be taken for other purposes than those of criticism, but the limit is much narrower than when they are taken for the purposes of criticism or comment. If so much is taken that the value of the original is sensibly diminished, or the labors of the author are substantially and to an injurious extent appropriated, that is sufficient in law to constitute a piracy (/). It is immaterial whether the quantity taken be small or large. * The question is * 454 whether substantial damage is caused to the property of the author (A). Where the proprietor of the Law Digest copied from the Jurist the head-notes of the reported cases, it was held to be an abuse of the right of extract (I). So also a man was restrained from copying reports of law cases from a work of the plaintiff (m). So also, in Dickens v. (n), the («) Bell V. Whitehead, 8 L. J. Ch. N. See Morris v. Wright, 5 L. R. Ch. Ap. S. 141. 279. (/) 76. (k) Curtis on Copyright, 252. Ig) lb. ; Eoworth v. Wilkes, 1 Camp. [l] Sweet v. Benning, 16 C. B. 459. 94; Folsom v. Marsh, 100, 113. See Tonson v. Walker 3 Sw. 672. (A) Wilkins v. Aikin, 17 Ves. 422; (m) Sweet a. Shaw, 1 Jur. 917. Gary v. Kearsley, 4 Esp. 168 ; Folsom (n) Cited 8 L. J. Ch. N. S. 141. V. Marsh, 2 Story (Amer.), 100, 117. i See Gray v. Eussell, 1 Story, 11, (i) Campbell v. Scott, 11 Sim. 31. where this subject is discussed by Judge (j) Folsom V. Marsh, 2 Story ( Amer. ), Story. 100, 115 ; Bohn v. Bogue, 10 Jur. 420. [471] * 455 INJUNCTIONS TO EESTEAIN [CH. XX. proprietor of a provincial newspaper was restrained from- publishing large extracts from a novel unaccompanied by criti- cism (o). So also the printing and selling of a drama, large passages of which were taken from a novel, was held to be an infringement of the copyright in the novel (js). So also where a man possessed a copyright in a play, and in a novel which had been founded on the play, a dramatized version of the novel containing scenes and passages which were common to both play and novel was held to be an infringement of the copyright in the play (^q). 20. If the extracts are acknowledged, the acknowledgment shows that the party did not intend to pass as his own what belongs to another, but it does not justify or excuse the piracy (r). 21. The most frequent form of piracy which comes before the court is where the matter of a prior publication is adopted, imitated, or transferred, with more or less colorable alteration, to disguise the piracy. Where a book protected by copyright is a historical or speculative work, or a work of invention or imagination, or is generally a work of an original character, the hand of the author can be followed without much difficulty ; but where the work relates to a subject which cannot from its very nature be entirely new, and in which the mode of expres- sion and language are necessarily so common that two persons must to a very great extent express themselves in identical terms in conveying the instruction or information which * 455 they * are anxious to communicate, the difficulty is much increased (s). In certain cases of the sort, such as mathematical tables, chronologies, almanacs, calendars, maps, concordances, and similar publications, the result must be nearly identical, and the only mode of determining whether an unfair use of a prior publication has been made by a sub- sequent compiler is the copying of errors or misprints {t). (o) See Campbell v. Scott, 11 Sim. Scott v. Stanford, 3 L. R. Eq. 718. See 31. Comp. Dodsley w. Kinnersley, Amb. Campbell v. Scott, 11 Sim. 31 ; Tinsley 403, which cannot, however, be con- v. Lacy, 1 H. & M. 747. sidered law. (s) Spiers v. Brown, 6 W. R. 852, per (p) Tinsley v. Lacy, 1 H. & M. 747. Wood, V. C. ; Kelly v. Morris, 1 L. R. (?) Reade v. Lacy, 1 J. & H. 524. Eq. 697. See Webb u. Powers, 2 Wood. See Lewis v. EuUarton, 2 Beav. 6. & M. (Amer.) 512. (r) Bohn v. Bogue, 10 Jur. 420; (t) lb. [472] CH. XX.] THE INFRINGEMENT OP COPYRIGHT. *456 Dictionaries of all kinds, gazetteers, grammars, arithmetic, or other school-books, encyclopssdias, itineraries, guide-books, and similar publications, are another class of cases in which much of the matter must be identical and no great novelty is practi- cable (m). In such cases, if there are no common errors in both, the recurrence of passages identically the same may be sufficient to be a conclusive proof of piracy («). Where the resemblance does not amount to an identity of particular pas- sages, the question becomes in substance whether there be such a conformity and similitude between the two works that the writer of the one must have copied or made an undue use of the other. What degree of resemblance will authorize the inference that one book is a copy or colorable imitation of another is often a question of great nicety, and depends on the circumstances of each particular case (w). A man is not de- barred from consulting a prior work on the same subject. He may examine it to see whether it contains any thing which he has forgotten, or whether any reference is made there to some other work bearing on the subject (x). If he has be- stowed much labor, and has honestly * exercised his * 456 mind upon the work, he is not guilty of piracy, although he may have copied a good deal («/) : but if a man, instead of examining the original sources, of honestly exercising his mind on the work, avails himself of the labors of his prede- cessor, adopts his arrangement, borrows the materials which he has accumulated and combined together, or uses his lan- guage with colorable alterations or variations, he is guilty of piracy (z). "The true test of piracy," said Story, J., in («) lb. ; Webb y. Powers, 2 Wood & 2 Euss. 385; Stevens y. Wildy, 19 L. M. ( Amer. ) 512 ; Jarrold v. Houlstone, J. Ch. 190 ; Jarrold v. Houlstone, 3 K. 3 K. & J. 708. & J. 708 ; Hotten v. Arthur, 1 H. & M. {v) Matthewsony. Stockdale, 12Ves. 603. 270; Wilkins v. Aikin, 17 Ves. 422; (x) Jarrold v. Houlstone, 3 K. & J. Mawman v. Tegg, 2 Euss. 385 ; Lewis 716 ; Kelly v. Morris, 1 L. E. Eq. 697. V. FuUarton, 2 Bear. 6 ; Jarrold v. See Murray v. Bogue, 1 Drew. 353. Houlstone, 3 K. & J. 708 ; Hotten v. (y) Hotten v. Arthur, 1 H. & M. 603 ; Arthur, 1 H. & M. 603 ; Lennie v. Pillans, Spiers v. Brown, 6 W. E. 352 ; Murray 5 Dec. of Ct. of Sess., 2d series, p. v. Bogue, 1 Drew. 369. 417. («) Jarrold v. Houlstone, 3 K. & J. (w) Sayre v. Moore, 1 Bast, 361, n. ; 716, per Wood, V. C. ; Lewis v. FuUar- Trusler y. Murray, ib. 363, n. ; Gary ton, 2 Bear. 6 ; Hotten v. Arthur, 1 H. V. Kearsley, 4 Esp. 168 ; Matthewson & M. 603 ; Kelly v. Morris, 1 L. E. Eq. V. Stockdale, 12 Ves. 270; Wilkins v. 697; Gray, «. EusseU, 1 Story (Amer.), Aikin, 17 Ves. 422; Mawman v. Tegg, 11. [473] * 457 INJUNCTIONS TO RESTRAIN [CH. XX. Emerson v. Davies (a), " is to ascertain whether the defendant has in fact used the plan, arrangement, or illustrations of the plaintiff as the model of his own book, with colorable altera- tions and variations only to disguise the use thereof; or whether his work is the result of his own labor, skill, and use of common materials and common sources of knowledge open to all men, and the resemblances are either accidental or arising from the nature of the subject. In other words, whether the defendant's book is a servile or evasive imitation of the plaintiff's work, or a bond fide compilation from other or independent sources "(&). The compiler of a dictionary or guide-book containing information derived from sources common to all, which must of necessity be identical in all cases, if correctly given, is not entitled to spare himself the labor and expense of original inquiry by adopting and repub- lishing the information contained in previous works on the same subject. He must obtain and work at the information independently for himself, and the only legitimate use which he can make of previous works is for the purpose of verifying the correctness of his results (c). Where a number of pas- sages are proved to have been copied by the copying of the blunders in them, other passages which are the same with pas- sages in the original work will be presumed primd facie to be likewise copied, though no blunders occur in them ((£). * 457 22. * A fair and bond fide abridgment of a book is not a piracy (e) ; but what constitutes a fair and bond fide abridgment in the sense of the law is by no means an- easy question (/). In Dickens v. Lee (^), Knight Bruce, L. J., adopting the language of Lord Bldon in Wilkins v. Aikin (K), said the test was whether there has been a legitimate use of the original work in the fair exercise of a mental operation deserving the character of an original work. But as Story, J., has said (i), in commenting on the language of Lord Eldon in (a) 3 Story (Amer.), 793. (e) Newberry's case, Loffl. R. 775; (6) See Webb v. Powers, 2 Wood. Gyles v. Wilcox, 2 Atk. 141 ; Bell v. & M. (Amer.) 497. Walker, 1 Bro. C. C. 451. (c) Kelly V. Morris, 1 L. B. Eq. 697. (/) Folsomu. Marsh, 2 Story(Amer.), (d) Mawman v. Tegg, 2 Russ. 394, 107, per Story, J. per Lord Bldon. See Lewis v. PuUar- (o) 8 Jur. 184. ton, 2 Beav. 6 ; Jarrold v. Houlstone, 3 A) 17 Ves. 422. K. & J. 722. See, also, supra, p. 445. (i) Eq. Jur. 939. [474] CH. XX.] THE INFRINGEMENT OP COPYRIGHT. * 458 Wilkins v. Aikin, this is another mode of stating the difficulty, rather than a test affording a clear criterion to discriminate between the cases. A mer^ colorable shortening of the orig- inal work by the omission of certain passages, or the mere selection or different arrangement of parts of the original work so as to bring the work into a smaller compass, is not a fair and bond fide abridgment (k'). To be a fair and bond fide abridgment, there must be a substantial condensation of the material and intellectual labor and judgment bestowed there- on (J).^ There is, however, much reason to doubt whether the doctrine that an abridgment is not a piracy can be considered sound. In his life of Lord Hardwicke, Lord Campbell (m) expressly disapproves of it ; and in his treatise on Copyright, Mr. Curtis considers an abridgment to be on principle an in- vasion of copyright; and in a late case (w) Wood, V. C, said the cases as to abridgment had gone far enough, and expressed his disapproval of several of the dicta on the subject (o). 23. A digest made from the published reports, extracting the principle or the substance of the decision, and putting it into * new language, is a fair and bond fide abridg- * 458 ment (p) : but the copying from the reports the facts of cases and the judgments, and the arrangement of them in a different manner, is a piracy and not a fair abridgment (g'). 24. The translation of a work not under the protection of copy- right in the country where the translation is published infringes no right of property : but there is some doubt as to whether a translation is or is not an infringement when published in the country where the original work is protected. Certain dicta in Wyatt v. Barnard (r), Burnett v. Chetwood (s), and Prince Albert v. Strange (f), seem to be in favor of the opinion that a translation is not an infringement ; but it is difficult to (4) Gyles V. Wilcox, 2 Atk. 141; Y. & C. 288, per Lord Lyndhurst ; Butterworth v. Robinson, 5 Yes. 709 ; Dickens v. Lee, 8 Jur. 184, per Knight Dickens v. Lee, 8 Jiir. 184; Sweet v. Bruce, L. J. Shaw, 1 Jur. 917 ; Gray v. Russell, 1 (p) Sweet v. Benning, 16 C. B. 459. Story (Amer.), 11. (?) Butterworth v. Robinson, 5 Ves. U] Folsom V. Marsh, 2 Story (Amer.), 709. 107. See Webb v. Powers, 2 Wood. & (r) 3 V. & B. 77. M. (Amer.) 512. s) 2 Mer. 441, n. (m) Page 66. U) 2 De G. & S. 693. (n) Tinsley v. Lacy, 1 H. & M. 747. I Story's Executors v. Holcombe, 4 (o) See also D'Almaine v. Boosey, 1 McLean, 811. [476] * 459 INJUNCTIONS TO RESTRAIN [CH. XX. see upon what principle this doctrine can be upheld. A trans- lation may, it is true, be a work of great labor, and may jequire the exercise of much industry and skill, but it does not follow that a translator should be able, by merely incorporating with the matter of the book the fruits of his own industry, to absorb the rights of the original author (u).^ In Burnett v. Chet- wood (a;). Lord Macclesfield restrained a man from publishing the translation of a Latin work, but the ground on which he proceeded was, that it was not for the benefit of the public that a translation should be published. If a foreigner translates an_ English work, and an Englishman afterwards re-translates the foreign work into English, that would be an infringement of copyright (y). The translation of a foreign work may be the sub- ject of copyright in this country. Any other man has an equal right to translate the original work, and to publish his transla- tion, but he must not make an iinfair use of the translation already published (2). 25. Under the International Copyright Act, 7 & 8 Vict. c. 12, the right of translation is reserved to foreign authors of books published abroad. * 459 26. * There are dicta to be found in the reports to the efiect that a subsequent writer may use the works of a previous writer, provided improvements, corrections, or addi- tions are made (a) ; and in one case a verdict is reported to have been taken upon this principle under the direction of Lord Mansfield (&) ; but this cannot be considered to be a sound exposition of the law (c). 27. The extent to which music may be used by adaptation (u) Curtis on Copyright, 291. infringement of her copyright. It is (x) 2 Mer. 441, n. said a " copy " of a book must be a (y) Murray «. Bogue, 1 Drew. 353, transcript of the language in which the per Kindersley, V. C. conceptions of the author are clothed ; (x) Wyatt v. Barnard, 3 V. & B. 77 ; of something printed and embodied in Emerson v. Davies, 3 Story (Amer.), a tangible shape; that in questions of 780, per Story, J. infringement of copyright, the inquiry (a) See Gary v. Kearsley, 4 Esp. 168, is not, whether the defendant has used 170; Matthewson t). Stockdale, 12Ves. • the thoughts, conceptions, informations, 275 ; Martin v. Wright, 6 Sim. 298. or discoveries promulgated by the orig- (b) Sayre v. Moore, 1 East, 361, n. inal, but whether his composition may (c) Curtis on Copyright, 263. be considered a new work, requiring 1 In Stowe V. Thomas, 2 Amer. invention, learning, and judgment, or Law Keg. 210, it was held by Grier, J., only a mere transcript of the whole or that the translation into, and publication parts of the original, with merely color- of, Mrs. Stowe's work called " Uncle able variations. See this case for dls- Tom's Cabin," in German, was not an cussion of subject by counsel and court. [476] CH. XX.J THE INFRINGEMENT OP COPYRIGHT. * 460 for a different kind of performance than that for which it was originally composed was considered in D'Almaine v. Boosey (d) ; and the doctrine was laid down that a piracy is committed where the appropriated music, though adapted to a different purpose than that of the original, may still be recognized by the ear, and that the adding variations makes no difference in the principle (e). 28. The privilege reserved to the author of a work, pro- tected by copyright, is limited to the multiplication of copies. Any man may make what use he pleases of the work, so long as he does not multiply copies (/). The reading or reci- tation of it in public, or the representation on the stage of a play founded upon it, is not an infringement of the copy- right (^) ; but copies may not, upon the occasion of the recita- tion or performance, be distributed among the audience (A). The multiplication of copies, though not for the purposes of sale, of a work which is the subject of copyright, is an infringe- ment of the right (^). 29. Copies of a work which have been lawfully multiplied by a publisher during the term of his agreement for purchase with an author may be sold after the term has expired (A). 30. Copyright in articles contributed to an encyclopedia, review, magazine, or other periodical publication, de- pends upon the 18th * section of 5 & 6 Vict. c. 45. The * 460 clause declares in substance, that where the proprietor, Ac, of an encyclopaedia, review, &c., employs a man to write articles for the purpose of publication therein, the copy- right of the articles so expressly written for such encyclo- paedia, review, &c., shall, upon payment, be the property of the proprietor, &c., for the term of twenty-eight years ; and that, after the term of twenty-eight years, the right of pub- lishing, in a separate form, articles written for a review, &c., shall revert to the writer for the remainder of the term (d) 1 Y. & C. 288. S. 755 ; Tinsley v. Lacy, 1 H. & M. (e) See Chaptiell v. Davidson, 2 K. 747. & J. 131. (A) n. ( /) See Reade v. Conquest, 9 C. B. (i) NoTello v. Sudlow, 12 C. B. 177 ; N. S. 755 : Tinsley v. Lacy, 1 H. & M. Tinsley v. Lacy, 1 H. & M. 747. 747. {k) Howitt V. HaU, 10 W. K. 381, 6 (g) Eeade v. Conquest, 9 C. B. N. L. T. N. S. 348. [477] *461 INJUNCTIONS TO RESTRAIN [CH. XX. given by the act (J). There is a proviso in the clause declar- ing that the proprietor of an encyclopasdia, review, &c., may not publish any such article, " separately or singly," without the consent of the author or his assigns, or otherwise than in the encyclopEedia, review, &c., unless the article was written on the terms that the copyright therein should belong to the propri- etor for all purposes (m). The meaning of the proviso, taken with the clause, is not to vest a copyright in the proprietors or. publishers of a periodical work, but simply to give them a license to use the matter for a particular purpose (w). An author who has composed an article to be published in a certain periodical work is entitled to require that it be not published otherwise than as part of the periodical. The proprietors or publishers may not publish it as a single book, or separately from the periodical, in conjunction with any thing else, or in any other form than as part of the entire number of the peri- odical in which it first appeared (o). The republication in supplemental numbers of a selection of various tales pre- viously published in a periodical is a separate publication within the meaning of the clause (^). The Christmas number of a serial must be treated as part of a periodical work (^q). The author or his assigns may have an injunction to restrain the proprietor, &c., of an encyclopaedia, review, &c., from pub- lishing the article, " separately or singly," without first enter- ing it at Stationers' Hall (r). * 461 31. * The reservation of the right of separate publica- tion to the author of an article for a review or periodical publication for fourteen years after the expiration of the first twenty-eight years does not apply to an article written for an encyclopaedia (s). 32. If the publisher of a magazine employs an editor, and the editor employs and pays a man for writing in the magazine, the copyright in the article does not, it would appear, vest in the publisher under the terms of the clause (t). {I) See Sweet v. Benning, 16 C. B. (p) Smith v. Johnson, 4 Giff. 632. 459. Iq) Mayhew v. Maxwell, 1 J. & H. (m) Bishop of Hereford v. Griffin, 16 312. Sim. 190. (r) lb. (n) lb. ; Smith v. Johnson, 4 Giff. 632. (s) Bishop of Hereford v. Griffin, 16 (o) Mayhew v. Maxwell, 1 J. & H. Sim. 190. 812 ; Smith v. Johnson, 4 Giflf. 632. (<) Brown v. Cooke, 16 L. J. Ch. 141 [478] CH. XX.] THE INFRINGEMENT OP COPYRIGHT. * 462 33. Actual payment is a condition precedent to the vesting of the copyright in an article written for an encyclopaedia, review, magazine, or other periodical work in the proprietor or pub- lisher. A contract to pay is not sufficient (u). The pleadings should show that payment has been actually made (x). 34. A special statutory copyright exists in lectures, oral or written, by the 5 & 6 Will. 4, c. 65 (y). 35. Crown copyright is not, like ordinary copyright, the cre- ation of statute. The Crown has, by virtue of its prerogative, the exclusive right to the publication of acts of Parliament, proclamations, orders of council, liturgies, books of divine service, the translation of the Bible, &c. (2). So long as there are separate subsisting patents for England and Scotland for the printing of Bibles, no other copies can be sold in either country, except those printed by the patentee in that country ; and so long as there is a subsisting patent for either country, no other copies can be sold except those printed by the patentee or patentees (a). 36. The Universities of England and Scotland, and the Colleges of Eton, Westminster, and Winchester, have, by Statute 15 Geo. 3* c. 53, a perpetual copyright in books given or bequeathed * to them for the advancement of * 462 useful learning and other purposes of education. A similar privilege has been conferred on Trinity College, Dublin, by Stat. 41 Geo. 3, c. 27 (6). 37. The House of Lords claims the exclusive right to appoint a publisher of judicial proceedings before itself. This claim was recognized in Bathurst v. Kearsley (e) ; and an in- junction was granted to restrain the publication of the trial of the Duchess of Kingston (rf). On the authority of this prece- dent. Lord Erskine granted an injunction, until the hearing, to restrain the publication of Lord Melville's trial (e). (i() Richardson v. Gilbert, 1 Sim. N. bridge v. Eichardson, 6 Ves. 689 ; Her S. 337 ; Brown v. Cooke, 16 L. J. Ch. Majesty's Printers v. Bell, Mor. Diet. 141. of Dec, vols. 19, 20, p. 8316. See Brown v. Cooke, ib, Curtis on Copyright, 120 ; Philipps on s Supra, p. 190. Copyright, 193. '(z) Basket v. University of Cam- (6> See 5 & 6 Vict. c. 45, s. 27. bridge, 1 W. Bl. 105 ; Basket v. Cun- (c) Cited 13 Ves. 504 ningham, 2 Eden, 137; Manners v. {d} Ib. BUgh, 3 Bligh, N. S. 402. (e) Gurney v. Longman, 13 Ves. (a) Universities of Oxford and Cam- 504. [479] *463 INJUNCTIONS TO RESTRAIN [CH. XX. 38. The Crown may, perhaps, by virtue of its prerogative, claim the exclusive right, of publishing reports of judicial pro- ceedings (/) ; but no such claim has been asserted for many years ; and in several cases individuals have been acknowledged by the court as proprietors of copyright in law reports (^). The copyright, however, in such cases is not in the actual judgments of the court, but in the diligence and skill that may be used in taking notes of what may fall from the judge, and in collecting the judgments and arranging the cases. , SECTION IV.— DRAMATIC AND MUSICAL COPYRIGHT. 1. Statutes giving copyriglit in dramatic pieces and musical compositions. 2. Construction of statute. 3. First public performance a publication. 4. The right is expressly given to author or his assignee. 5. Assignment of right to represent a dramatic piece must be in writing. 6. WTiat may be an infringement. 7. Penalties. 1. Copyright in ■ dramatic pieces and musical compositions depends upon 3 & 4 Will. 4, c. 15, and 5 & 6 Yict. c. 45. The literary copyright in this species of property, or the power of multiplying copies, is regulated by 5 & 6 Vict. c. 45, and is in all respects the same as the copyright in other published matter. With respect to the stage copyright in a drama and musical composition, these acts declare in substance that the author of a published dramatic piece or musical com- * 463 position shall have * the sole liberty of representing and performing it at any place of dramatic entertainment (A). 2. A room may be a place of dramatic entertainment, though it be ordinarily used for other purposes (»). There is some doubt whether the protection of the statutes extends to musical compositions if they be not dramatic in their nature ; but a song which describes feelings in words of passion is dramatic (/) See Millar v. Taylor, 4 Burr. (A) 3 & 4 Will. 4, c. 15, s. 1 ; 6 & 6 2329; Curtis on Copyright, 129; Vict. c. 45, ss. 20, 21. See RusseU w. Philipps on Copyright, 194. Smith, 12 Q. B. 217. Comp. S. C, 15 {g) Butterworth v. Robinson, 5 Ves. Sim. 181 ; see, also, Reade v. Conquest, 709 ; Saunders v. Smith, 3 M. & C. 711 ; 9 C. B. N, S. 758. Sweet V. Shaw, 1 Jur. 917 ; Sweet v. (i) Russell v. Smith, 12 Q. B. 217. Benning, 16 C. B. 459; Hodges v. Welsh, 2 Ir. Eq. 266. [480] CH. XX.] THE INFRINGEMENT OF COPYRIGHT. * 464 in its nature (/). An introduction to a pantomime is within the statutes (A). 3. The first public representation or performance of a dra- matic piece or musical composition is a publication Q}. 4. The right is expressly given to the author or his as- signee (m). An employer who merely suggests the subject, but has no share in the design or execution of the work, is not an author (m),^ but an employer who forms the general design of an entertainment, and employs another to compose a musical composition as part of or as accessory to the entertainment, is the author of the whole entertainment within the meaning of the statute (n). A man, however, who adopts words of his own to an old air, and adds thereto a prelude and accompani- ment also his own, acquires a copyright in the combination (o). So also does a man who arranges for the piano the music of an opera, containing no piano-forte score, acquire a copyright in the arrangement (p). 5. The assignment of the right to represent a dramatic piece or perform a musical composition must be in writing (^q), but need not be by deed (r). The assignment of the copyright in a book containing a dramatic piece or musical composition does not carry with it the right to represent the dramatic piece or to * perform the musical composition, unless * 464 some entry be made in the registry book that it was the intention of the parties that the assignment should have that effect (s). The proprietor, however, of the right of represent- ing a dramatic piece or performing a musical composition is not bound to register (t). i )■) EusseU V. Smith, 12 Q. B. 217. (9) Shepherd v. Conquest, 17 C. B. 1c) Lee V. Simpson, 3 C. B. 871. 427. (0 5 & 6 Vict. c. 45, s., 20. See (r) Marsh u. Conquest, 17 C.B. N. S. Macklin v. Richardson, Amb. 694; 418. D'Almaine v. Boosey, 1 Y. & C. 299, (s) 6 & 6 Vict. c. 45, s. 22. See Lacy per Lord Lyndhurst. v. Khys, 4 B. & S. 873; Marsh v. Con- (m) See Shepherd v. Conquest, 17 quest, 17 C. B. N. S. 418. C. B. 427. (t) Russell v. Smith, 12 Q. B. 217. (n) Hatton v. Kean, 7 C. B. N. S. Lacy v. Rhys, 4 B. & S. 873 ; Marsh v. 269. Conquest, 17 C. B. N. S. 418. (o) Lover v. Davidson, 1 C. B. N. S. 1 A person cannot appropriate as his 182. See Leader v. Purday, 7 C. own, by copyright, alterations and im- B. 4. provements made in a musical compo- (p) Wood V. Boosey, 15 W. R. 309 ; sition by others at his procurement and infra, p. 471. for him. Atwill v. Ferrett, 2 Blatchf. 39. 31 [481] * 465 INJUNCTIONS TO RESTRAIN [CH. XX. 6. The representation -without the author's consent of the incidents of a published dramatic piece is an invasion of the stage copyright in the drama, although they may have been taken not from the drama but from a novel upon which the drama was founded (m). 7. Certain penalties are imposed by the 3 & 4 Will. 4, c. 15., for an infringement of the provisions of the act ; but an in- junction may nevertheless be obtained in equity to restrain the representation or performance of any dramatic piece or musical composition in violation of the provisions of the act (a;) SECTION V. — COPYRIGHT IN PEINTS, ENGRAVINGS, SCULPTURE, PHOTOGRAPHS, ETC. 1. Statutes giving copyright in prints, engravings, etchings, and lithographs. 2. When a copy is piratical. 3. Provision in place of registration. 4. Copyright only assigned hy writing attested by two witnesses. 5. Prints, engravings, cfec, in booits protected without compliance with these statutes. 6 & 7,. Prints engraved and struck off abroad, but published in England, not protected. 8. Knowledge of piracy by defendant not essential. 9. No copyright in imoioral, obscene, or libellous prints. 10. Copyright in sculpture, photographs, drawings, and paintings. 1. Copyright in prints, engravings, and etchings depends upon 8 Geo. 2, c. 13, 7( Geo. 3, c. 38, and 17 Geo. 3, c. 57. These acts have been extended to Ireland by 6 & 7 Will. 4, c. 59. The protection of these acts has been extended to litho- graphs (y). 2. A copy is piratical within these acts if it comes so near the print, engraving, &c., &c., as to give every person seeing it the idea created by the original (s). The copy need not be exact : it is a piracy if it be substantially a copy (a). The copying an engraving by the process of photography is *465 a piracy (6). The * language of the statutes includes any copies made by any mechanical or chemical process, (u) Reade v. ConcLuest, 11 C. B. N. S. (z) West v. Francis, 5 B. & Aid. 743. 479 ; Eeade v. Lacy, 1 J, & H. 524. See Roworth v. Wilkes, 1 Camp. 94. (x) Russell V. Smith, 15 Sim. 181 ; (a) Moore v. Clark, 9 M. & W. 692. Reade v. Lacy, IJ. & H, 524. (6) Gambart v. Bull, 14 C. B. N. S. (y) 15 & 16 Vict. c. 12, 8. 14. 806 ; Graves v. Ashford, 36 L. J. C. P. 139. [482] CH. XX.] THE INFRINGEMENT OP COPYRIGHT. *466 and capable of being multiplied indefinitely, but does not, it would appear, apply to copies made by hand, or to designs transferred to an article of manufacture (c). An engraver is entitled to the protection of these statutes, although he may have copied from a drawing or a picture (rf). 3. Registration is not requisite, but it is required by 8 Geo. 2, c. 13, s. 1, that the day of the first publication shall be truly engraved with the name of the proprietor on each, plate, and printed on every copy. The fulfilment of these requisitions is necessary to enable a man to recover the penalties imposed by the statute. It was formerly doubted whether an action at law or a bill in equity could be maintained without a com- pliance with these requisitions (e). It may, however, be con- sidered as established, that no action or suit can be maintained, unless the date and name of the proprietor be engraved there- on according to statute (/). It is not, however, necessary that the designation " proprietor" be added to the name (^). 4. The copyright in prints, &c., &c., can only be assigned by writing attested by two witnesses (K). An assignee may maintain an action for piracy under the act (i). 6. Prints, engravings, &c., &c., forming part of a book, are protected by 5 & 6 Vict. c. 45, and need not comply with the requisitions of these statutes (]c). 6. Prints engraved and struck off abroad, but published in this country, are not protected by these statutes (J). But under the provisions of the International Copyright Act, 7 & 8 Vict. c. 12, s. 19, the inventor, designer, or engraver of a print first published * abroad may have protection on * 466 complying with the provisions of 8 Geo. 2, c. 13. There can be no copyright in a foreign print or engraving, unless the (c) GamBart v. Bull, 14 C. B. N. S. Grares v. AsMord, 36 L. J. C. P. 306 ; Graves v. Ashford, 36 L. J. C. P. 189. 139. {g) Newton v. Cowie, 4 Bing. 284 ; (d) Newton v. Cowie, 4 Bing. 284. Graves v. Ashford, 36 L. J. C. P. 189. See Sayre v. Moore, 1 East, 361, n. (h) See Curtis on Copyright, p. 112. (e) Blackwell v. Harper, 2 Atk. 93 ; (t) Thompson u. Symonds, 5 T. K. Koworth V. Wilkes, 1 Camp. 94. 41. (/) Thompson v. Symonds, 5 T. R. (k) Bogue v. Houlstone, 6 De G. & 41 ; Harrison v. Hogg, 2 Ves. Jr. 823 ; S. 275. Brooks V. Cock, 8 A. & E. 188 ; Col- (I) Clementi v. Walker, 2 B. & C. naghi v. Ward, 12 L. J. Q. B. N. S. 1. 861 ; Page v. Townsend, 5 Sim. 395. See Bogue v. Houlstone, 5 De G. & S. See Jefferys v. Boosey, 4 H. L. 959, 276 ; Avanzo v. Mudie, 10 Exch. 203 ; per Lord Crauworth. [483] *466 INJUNCTIONS TO RESTRAIN [CH. XX. date of the publication and the name of the proprietor are engraved on the plate, and printed on the print, &c., &c., as required by that statute (wi). ' 7. If the print, engraving, &c., &c., differs materially from the original in character, it is not a piracy within 17 Geo. 3, c. 57 (m). 8. An action may be maintained against a man for selling pirated copies of a print or engraving, though he may have no knowledge that they are piratical (o). 9. No action will lie to recover the value of immoral, obscene, or libellous prints (p). Nor can a copyright exist in an en- graving of an immoral character (jq). 10. Copyright in sculpture depends on the Statute 54 Geo. 3, c. 56 (r). Copyright in original drawings, paintings, and photographs depends on 25 & 26 Vict. c. 68 (s). SECTION VI. — COPYRIGHT IN DESIGNS. 1. Copyright in designs. 2. Statutes regulating copyright in designs for ornament. 3. Duration of copyright. 4. Who is proprietor of a design within the meaning of the statutes. 5. Protection given whether application takes place within United Eingdom or else- where; whether inventor be or be not an alien. 6. Meaning of " design." ^ 7 & 8. Requisites to entitle one to the benefit of the statutes. 9. After publication every article to which design is applied must be marked or labelled. 10. What constitutes infringement. 11. Ignorance of registration does not excuse piracy. 12. Proprietor of design entitled to injunction restraining manufacture. 13. Statutes regulating copyright in designs for utility. 14. Requisites in order to bring one within the protection of the statute. 15. Design both ornamental and useful may be registered under both acts. 16-19. Various statute provisions. 1. Copyright in the application of designs for ornament, and (m) Avanzo v. Mudie, 10 Exch. 203. (q) Du Bost v. Beresford, 2 Camp. \n) Martin v. Wright, 6 Sim. 297; 511. Newton v. Cowie, 4 Bing. 234, per Lord (r) See Philipps on Copyright, 225. Wynford. (s) See Philipps on Copyright, pp. (o) Gambartw. Sunmer, 5 H. & N. 5. 218-224; Strahan v. Graham, 15 W. (p) Fores v. Johnes, 4 Esp. 97. R. 487. [484] Ca. XX.] THE INFRINGEMENT OP COPYRIGHT. *467 copyright in the application of designs for utility are distinct rights founded upon different statutes (i). 2. Copyright in designs for ornament is regulated by an act 5 & 6 Vict. c. 100, amended by Acts 6 & 7 Vict. c. 65 ; 13 & 14 Vict. c. 104 ; 21 & 22 Vict. c. 70 ; and 24 &25 Vict. c. 73. Under these acts protection is given generally to new and original designs, whether in shape, or configuration, or other- wise applicable to the ornamentation of articles of manu- facture (m). 3. * The duration of the copyright varies according * 467 to the different articles of manufacture (x). 4. The inventor or author of any new and original design is the proprietor of a design within the meaning of the acts, unless he may have executed the work on behalf of another person for a valuable consideration, in which case such person is considered the proprietor, and is entitled to be registered in the place of the inventor or author («/) ; and every person ac- quiring for a valuable consideration a new and original design, or the right to apply the same to the ornamentation of any article of manufacture, either exclusively of any other person or otherwise, and also every person upon whom the property in a design, or in the right to its application, has devolved, is considered the proprietor of the design in the respect in which the same has been so acquired and to that extent only (2). 5. Protection is given whether the application of the design takes place within the United Kingdom or elsewhere, or whether the inventor be or be not an alien (a). 6. The word "design" does not mean an invention, but means something in the nature of a drawing, diagram, or picture applicable to the ornamentation of some article of manufacture. There is no analogy between a patent for an invention and a copyright for a design. The mere combina- tion of old materials in an old manner will be protected if there be a new design. It is not necessary that there should (t) Harrison v. Taylor, 4 H. & N. M See Macrae v. Houldsworth, 2 819 ; Windover v. Smith, 32 Beav. 200. De G. & S. 496. («) Millingen v. Picken, 1. C. B. 799 ; («) 5 & 6 Vict. c. 100, s. 4. See, as Harrison v. Taylor, 4 H. & N. 819 ; to mode of transfer of the right to a Windover v. Smith, 32 Beav. 200. design, ib. a. 6. (x) See Philipps on Copyright, 282. (a) 24 & 25 Vict. c. 73, ss. 1, 2. [486] *468 INJUNCTIONS TO RESTRAIN [CH. XX. be invention. All that is required is that the design be new (5). But to be a new design, the combination of old materials must constitute one design, and must not be merely, a multiplicity of old designs (c). 7. No person is entitled to the benefit of the statutes, unless the design or a description thereof has been registered before publication (jT), or unless a pattern or portion of an * 468 article of * manufacture to which the design is applied, has been furnished to the registrar beforepublication(e). If there has been a publication of the design, it cannot be after- wards registered (/), but if the design has been provisionally registered, the exhibition of it at certain places specified in the act will not vitiate the copyright (^). 8. A design if described in the register must be accurately described. The nature and object of the design must appear in the certificate of registration. The court is bound to look at the purpose and object of the design which has been regis- tered (A) . 9. After publication, every article to which the design is applied should have certain marks upon it, or a label attached to it containing such marks (i). The proprietor of a duly registered design, whether he be a British subject or a foreign inventor, loses the benefit of the statutes, xmless the proper registration marks are attached to all articles or substances to which the design is applied, whether the same are sold abroad or in the British dominions (/). 10. No person may, without the written consent of the proprietor, apply a design protected by the statutes, or any fraudulent imitation of it, for the purposes of sale to the orna- menting of any article, or substance, in respect of which the copyright in the design is in force ; and no person may publish, (b) Harrison v. 'Taylor, 4 H. & N. (/) Dalglish v. Jaryie, 2 Mac. & G. 815. See Perfect v. Shepard, 1 W. K. 231. 213. (a) 13 & 14 Vict. c. 104, s. 8. (c) Norton v. Kcholls, 1 El. & El. (A) Windover v. Smith, 32 Beav. 200. 761. See, as to certificate of registratioii, 5 («Z) 5 & 6 Vict. c. 100, s. 4 ; Norton & 6 Vict. c. 100, s. 16. V. Nicholls, 1 El. & El. 761. Comp. S. (i) 5 & 6 Vict. c. 100, s. 4. C, 4 K. & J. 475. See Lowndes v. (j) Sarazin w. Hamel, 32 Beav. 151. Browne, 12 Ir. L. 293. See, as to registration marks, Heywood (e) 21 & 22 Vict. c. 70, s. 5; Macrae v. Potter, 1 E. & B. 489. But see now V. Houldsworth, 5 B. & S. 495. 21 & 22 Vict. c. 70, s. 4. [486] CH. ix. j THE INFRINGEMENT OF COPYRIGHT. * 469 sell, or expose for sale, any article or substance, to which the design or any fraudulent imitation of it, has been so applied after knowledge from any source other than the proprietor of the design, that his consent has not been given to such appli- cation, or after having a written notice signed by him, or his agent to the same effect (h). 11. * Ignorance of the registration of a design does * 469 not excuse a piracy of the right therein (J). 12. The proprietor of a design protected by statute is entitled to an injunction restraining not merely the sale, but the manufacture of any article to which the design is applied during the period of protection (m). 13. Copyright in designs having reference to some purpose of utility depends on 6 & 7 Vict. c. 65 and 13 & 14 Vict. c. 104. These statutes protect " any new or original design for any article of manufacture having reference to some purpose of utility, so far as such design shall be for the shape or con- figuration of such article, and that whether it be for the whole of such shape or configuration, or only a part thereof" (w). The statutes apply only to shape and configuration, and not to a combination of old designs (o), or to inventions, or new appli- cations (p), however useful they may be : but if the new shape or configuration make an invention useful, it is within the protection of the statutes (g). The same article may be both the subject of a patent and of a registration under the statute, but in the former case the 'subject is the invention : in the latter the shape or configuration. If the shape or configura- tion be new, it is not necessary that there be invention (r). 14. In order to come within the protection of the statute, it is essential that the design should be new, and that it should be applied to some particular substance (s). Novelty must be (i) 5 & 6 Vict. c. 100, B. 7. See Smith, 32 Beav. 200; MuUoney v. De la Branchardiere v. Elvery, 4 Exeh. Stevens, 10 L. T. N. S. 190. 380 ; Norton v. Nicholls, 1 El. & El. (o) JJeg. v. Bessell, 16 Q. B. 810 ; 761. . MuUoney v. Stevens, 10 L. T. N. S. 190. (I) Macrae v. Houldsworth, 2 De G. (p) Millingen v. Picken, 1 C. B. 799 ; & S. 497. Margetson v. Wright, 2 De G. & S. (m) lb. iM. (n) 6 & 7 Vict. c. 65, s. 2. See Mil- (?) Rogers v. Driver, 16 Q. B. 102. Ungen v. Picken, 1 C. B. 799 ; Eogers (r Reg. v. Bessell, 16 Q. B. 810. z). Driver, 16 Q. B. 102; Windover v. (s) MuUoney v. Stevens, 10 L. T. N. S. 190. [487] * 470 INJUNCTIONS TO RESTRAIN [CH. XX. combined with utility, and the novelty must be substantial and not the mere extension of a well-known principle (t). The fact that some of the items claimed may not be conducive to some purpose of utility will not, it would appear, vitiate the registra- tion if others of them are so (m). * 470 15. * A new and original design which is ornamental as well as useful, may be registered under both the Design Acts, but if it has been registered under 6 & 7 Vict. c. 65, and cannot be supported under that act, it cannot be pro- tected under 5 & 6 Vict. c. 100, though it might have been supported under that act, if it had been registered under it (x). 16. The clauses as to the meaning of the word " proprietor," the transfer of designs, the piracy of designs, the certificate of registration, &c., &c., contained in 5 & 6 Vict. c. 100, have been incorporated with 6 & 7 Vict. c. 65 (j/). 17. The registry of a design must be before publication, and every article made according to the design must bear thereon the word " registered " with the date of registration (2). The registration of any pattern or portion of an article of manu- facture, to which a design is applied, instead of or in lieu of a copy, drawing, or description in writing is sufBcient (a). The registration of an article protects the whole of the design shown upon it. It is the entire combination only, and no single part of it, although new, that is protected. There is no infringement, unless the entire combination be appropriated (6). The question of novelty and infriligement is for the jury, but it is for the court, looking at the article registered, without the aid of a jury, to say whether the registration is suffi- cient (c). 18. An alien resident abroad may be proprietor of a design within the Act 24 &25 Vict. c. 73 (d). 19. Designs embraced within the Acts 38 Geo. 3, c. 71, 54 Geo. 3, c- 56, 5 & 6 Vict. c. 100, are not included within 6 & 7 Vict. c. 65 (e). (t) Windover v. Smith, 32 Beav. 200. (a) 21 & 22 Vict. c. 70, s. 6. («) lb. (6) Macrae v. Houldsworth, 1 L. E. (x) n. Q. B. 264. (y) Sect. 6; Windover v. Smith, 32 (c) 76. Beav. 200. See supra, pp. 467, 468. (d) Sect. 1. ■* («) 6 & 7 Vict. c. 05, s. 3. (e) 6 & 7 Vict. c. 65, s. 2. [488] CH. XX.] THE INFRINGEMENT OP C0PTBI6HT. * 471 SECTION Vn. — nSTTEENATIONAL COPYRIGHT. 1-4. Statute provisiona in relation to International Copyright. 1. The International Copyright Act, 7 & 8 Vict. c. 12, amended and explained by 15 & 16 Vict. c. 12, empowers the Queen, by order in council, to direct that authors, in- ventors, designers, * engravers, and makers of books, * 471 prints, articles of sculpture, and other works of art, first published abroad, shall have copyright here, and that authors of dramatic pieces and musical compositions first pub- lished and performed abroad shall have the sole liberty of rep- resenting or performing the same here. The protection given to translations of books published abroad depends on 15 & 16 Vict. c. 12, ss. 2-5 (/). 2. The 19th clause of the International Copyright Act, 7 & 8 Vict. c. 12, which enacts that no author of any book or dramatic piece, which shall be first published out of Her Majesty's dominions, shall have copyright therein, otherwise than under the provisions of the act, applies to British sub- jects first publishing in a country with which no international convention exists (^). A British author who first publishes in a country with which a convention has been made under the statute is entitled tc^ protection. If no convention has been made with the country in which he first publishes he cannot be protected Qi). 3. The right to sue depends on compliance with the condi- tions which the statute imposes on those who desire to reap the benefit of the act (i). The work which it is desired to protect must be duly registered within a certain time (7). The music of an opera which contained no piano-forte score, having been arranged for the piano by a musician, not the composer of the opera, it was held that the registration of the (/) See Philippe on Copyright, 249. (17) Boucicault v. Delafield, 1 H. & See, also, ib. 251, the Order in Council M. 597. respecting international copyright with (A) 76. France. (0 Wood u. Boosey, 36 L. J. Q. B. \ 103. U) lb. [489] *472 INJUNCTIONS TO RESTRAIN [CH. XX. name of the composer of the opera as the author was an undue registration, and that the name of the arranger should have been entered as the author (V). The proprietor of a foreign print, who claims copyright, must comply with the pro- visions of our own Engraving Acts. Nor can foreign authors' claim any exception from the conditions affecting authors of works in this country (Z). Neglect on the part of the * 472 officials * at Stationers' Hall to register a book, will de- prive a foreign author of the benefit of the statute (to). 4. In Cassell v. Stiff (»), a motion was made to restrain the infringement of an alleged copyright in a French news- paper, but Wood, V. C, doubted whether the case came witliin the provisions of the Order in Council. SECTION VUI. — ACCOUNT, COSTS, ETC. 1 & 2. Eight to an account of profits incidental to right to an injunction. Practice. 3. Plaintiff entitled to discovery. 4. Practice as to costs and perpetual injunction. 1. The right to an account of profits is incidental to the right to an injunction. If the cause is brought to a hearing, and a perpetual injunction is decreed, the plaintiff is entitled to the account as incidental to the relief by injunction (o). If* the account is small, it is usually waived (f>), but when it is not waived the court grants it upon principles which have been thus stated by Wigram, V. C, in Colburn v. Simms (^) : " The court does not by an account accurately measure the damage sustained by the proprietor of an expensive work from the invasion of his copyright by the publication of a cheaper book. It is impossible to know how many copies of the dearer book are excluded from sale by the interposition of the cheaper one. The court by the account, as the nearest approximation which it can make to justice, takes from the wrong-doer all the (ifc) "Wood V. Boosey, 36 L. J. Q. B. Sheriflf v. Coates, ib. 159 ; Kelly v. 103. Hooper, 1 T. & C. C. C. 197. il) Ayanzo v. Mudie, 10 Exch. 203. (p) See Eradella v. Weller, 2 R. & M. \m) Cassell v. Stiff, 2 K. & J. 279. 247. ' lb. (q) 2 Ha. 560. a Bally V. Taylor, 1 R. & M. 73 ; [490] CH. XX.] THE INFRINGEMENT OF COPTEIGHT. * 473 profits he has made by his piracy, and gives them all to the party who has been injured. In doing that the court may give the injured party more in fact than he is entitled to, for non constat that a single additional copy of the more expensive work would have been sold, if the injury by the sale of the cheaper work had not been committed. The court does not give anything more than the account " (r). The delivery up of the pirated copies depends entirely upon statute. There is not any common-law right on the subject (s). The 23d section of the Statute 5 & * 6 Vict. c. 45, which gives the * 473 registered proprietor of copyright in literary matter the right to have all the unsold copies of a pirated book delivered up, does not give him any right in a court of equity to more than the usual account of the net profits of all copies which may have been sold. He has no right in this court to an account of the gross proceeds. To recover the unsold copies he must proceed at law (t). At law he is entitled to have all the unsold copies delivered up to him for his own use without making any compensation for the cost of production and pub- lication {ii). 2. In a case within the Copyright of Designs Act, 5 & 6 Vict. c. 100, Knight Bruce, L. J., made an order for the deliv- ery up to the plaintiff, for the purpose of being destroyed, of all drawings and cards used by the defendant in applying his design, and also of all articles manufactured by the defendants to which the plaintiff's design had been applied (x). 3. The defendant must, if required to do so for the purposes of the account or the inquiry as to damages, set out the num- ber of copies containing pirated matter which have been sold by him {y). The plaintiff is entitled to continue the suit, until the discovery be given (z). 4. A man whose copyright is invaded is entitled to an in- junction with costs (a). If the defendant do not, after injunc- tion obtained, offer to pay the costs, and to give the plaintiff (r) See, as to account in patent cases, (x) Macrae v. Houldsworth, 2 De G. supra, pp. 435, 436. See, as to inquiry & S. 497. as to damages, supra, pp. 221-224, 436. (y) Stevens v. Brett, 12 W. R. 672. (s) Colburn v. Simms, 2 Ha. 560. See, also, supra, p. 436. (t) Delfe V. Delamotte, 3 K. &. J. (z) See Colburn «. Simms, 2 Ha. 543 ; 581. Kelly v. Hooper, 1 Y. & C. C. C. 197. {«) lb.; 5 & 6 Vict. c. 45, ». 28. (a) Supra, pp. 214^-216. [491] * 473 TO RESTRAIN THE INFRINGEMENT OF COPYRIGHT. [CH. XX. all the other relief to which he is entitled, the plaintiff may bring the suit to a hearing, and will be entitled to the costs of the suit, although at the hearing he may waive his right to the other relief (6). But if the defendant offers to submit to the injunction with costs, and to give the plaintiff all the relief to which he is entitled, the court will not give the plaintiff his costs of the subsequent prosecution of the suit to the hearing (c). {b) Kelly v. Hooper, 1 T. & C. C. C. 197; Colburn v. Slmms, 2 Ha. 561; supra, pp. 227-230; infra, p. 490. (c) Supra, p. 229. [492] CH. SXI.J TO EBSTEAIN THE PIEACT OF TEADE-MABKS. * 474 * CHAPTER XXI. *474 INJUNCTIONS TO EESTEAIN THE PIEACT OP TEADE-MAEKS. 1. Principles upon wliich court proceeds in restraining piracy of trade-marks. 2. Nature of a trade-mark. 8. When the right to the exclusive use of a trade-mark is established. 4. Trade-marks are either local or personal. 5 & 6. Subject of a trade-mark. 7. Using the name of another to obtain benefit of his reputation forbidden. 8. game principles apply to use of partnership style. 9-11. Eight of an author or publisher in the title of his work similar to that of a trader in his trade-mark. 12. Local trade-mark passes to a purchaser of the place or works or particular business. 13. Upon formation of partnership, trade-mark becomes partnership property. 14. Title by devolution to partnership style. 16. May be tenancy in common in trade-mark. 16. Misjoinder. 17. Alien may sue. 18. Plaintiff need not aver special damage. 19. Parties. 20 & 21. Trade-mark must make no misstatement or false representation. 22. Not determined whether a mere puffing exaggeration in labels is such misstatement. 23. Plaintiff must use due diligence in making application. 24. What constitutes colorable imitation and infringement. 25. Certain proofs of fraudulent intent. 26. Using a part of a trade-mark or accompanying symbols, &c. 27 & 28. Various cases of fraudulent imitation. 29. False statements with respect to goods as distinguished fi-om colorable imitations. 30. False representations amounting merely to slander of the name or reputation of an- other not cognizable in equity. 81. Bemedy in equity does not, as at law, depend on fraud. 32. Injunction, notwithstanding promise not to continue to use the trade-mark, agents, &c., restrained. 33. Plaintiff entitled to an account of profits from illegal user of trade-mark. 84. Basis on which account is taken. 35. When one tenant in common sues. 36. Eule on iuqaiiy as to damages. 37. Interrogatories for purposes of account, and inquiry as to damages. 38. Practice as to costs. 89. Between plaintiff and innocent third party. 1. The jurisdiction of courts of equity in restraining by in- terlocutory injunction the piracy of trade-marks is in aid of the legal right, and is founded on the equity of protecting [493] * 475 INJUNCTIONS TO EESTRAIN [CH. XXI. property from irreparable damage. The principles upon which a court of equity interferes, for the protection of trade-marks, are the same as those upon which it acts in other cases in pro- tecting legal rights to property from violation (a).-' 2. A trade-mark is a particular mark or symbol, used by a man for the purpose of denoting that the article to which it is afi&xed is sold or manufactured by him or by his authority, or that he carries on his business at a particular place. A trade- mark does not partake of the nature or character of a patent. A man has a right to manufacture the same article as an article made by another, unless the article be the subject of a patent, and to represent it as the same. If an article has acquired in the market a certain name, not as expressing the nature of a particular specimen, but as describing the nature of the article by whomsoever made, any man has a right to manufacture it and to call it by that name. No man, however, has a right to pass off his own goods as the goods of a rival trader. If a mark or symbol comes by use to be recognized in trade as the mark of the goods of a particular person, no other trader has a right to brand the same or a similar mark upon goods of a similar description, so as to induce a purchaser to believe that they are the goods of the person whose mark they bear. A man whose goods have obtained a reputation *• 475 in the market is entitled to * all the advantages of that reputation whether resulting from the greater demand for his goods or from the higher price which the public are willing to give for them rather than for the goods of other manufacturers whose reputation is not so high. No other trader has a right either directly or indirectly to represent that the article which he sells was manufactured by the person whose name or mark it bears as descriptive of quality or by any person to whom this person has assigned his business or his rights. He has no right to do this either by positive statements or by adopting the trade-mark of the person whose name it bears as descriptive of quality, or by using a trade- mark so nearly resembling it as to be calculated to mislead (a) Leather Cloth Company u. Ameri- fringing a trade-mark intends to eon- can Cloth Company, 33 L. J. Ch. 200 ; tinue the wrong, an injunction is the supra, p. 196. sole adequate remedy. Bradley v, 1 Where it appears that the party in- Norton, 33 Conn. 157. [494] CH. XXI.] THE EIHACT OP TEADE-MARK3. * 476 unwary and incautious purchasers (6).^ A man whose mark or symbol as applied to goods of a particular description obtains currency in the market as an indication of superior value, or of some other circumstance that renders the articles to which it is applied acceptable to a purchaser, acquires the exclusive right to the use of the mark or symbol in connection with the sale of that particular class of goods. The right is limited to the iise of the mark in connection with a particular class of goods. Apart from the particular use or application there is no right to the use of the symbol. The use of the same mark or symbol in connection with goods of a different class is not an infringement of the right (c). 3. The right to the exclusive use of a trade-mark is estab- lished, as soon as the particular article to which the mark or symbol is applied obtains acceptance and reputation in the market, and the mark or symbol gets currency as an indication of superior value, or of some other circumstance that renders the article to which it is applied acceptable to a purchaser. It is not necessary that there should have been such an antece- dent user of the mark as to acquire for the article on which it is stamped a general notoriety and reputation in the market. The right *may be 'established as soon as *476 the article is actually in the market, but it cannot be acquired before that time (d). 4. A trade-mark may be either a local or a personal mark : the former indicating that the article so branded is made or sold at a particular place, the latter indicating that the article has been made or is sold by a particular person : but a mark, though it may in some respects indicate the person by whom goods are manufactured, may refer much more closely to the place of manufacture than to the person of the manufacturer. The mark thotigh originally the name of the first maker of an article may in time, or from the mode in which it has been (6) Perry v. Truefitt, 6 Beav. 66; Barrows, zi. 204 ; Macandrew v. Bassett, Leather Cloth Co. v. American Cloth ib. 561 ; Braham v. Bustard, 1 H. & M. Co., 11 H. L. 523, 538, per Lord 'Kings- 447 ; Ainsworth v. Walmsley, 1 L. B. down ; Glenny v. Smith, 2 Dr. & Sm. Eq. 508. 476 ; Seixo v. Provezende, 1 L. R. Ch. (d) Lawsou v. Bank of London, 18 Ap. 192; Ainsworth v. Walmsley, 1 L. C. B. 84; Macandrew v. Bassett, 33 L. ' E. Eq. 508. J- Ch. 561 ; Maxwell v. Hogg, 2 L. R. ' (c) Edelsten v. Edelsten, 1 D. J. & S. Ch. Ap. 307. 185 ; Leather Cloth Co. v. American ^ Taylor v. Carpenter, 11 Paige, 292. Cloth Co., 88 L. J. Ch. 199 ; Hall v. [495} * 477 INJUNCTIONS TO RESTRAIN [CH. XXI. used, have become appropriated to goods manufactured at a particular place, or have become a sign of quality, or may have ceased to denote or be current as indicating that a par- ticular person is the maker (e). 5. A name, symbol, or emblem, however unmeaning in itself, or even ridiculous, may be the subject of a trade-mark (/).-^ 6. A word or name which is merely descriptive of an article (^), or is the current name by which a particular article is known in the market (A), or is a name which merely denotes the general chara,cter of a business (i), cannot be the subject of a trade-mark.^ But a name which is the ancient name of the country from which an article is procured may be adopted as a trade-mark in respect of the article (/). In Gout V. Aleploglu (k'), the word " warranted " put on an article in Turkish letters was *held not to be a trade-mark, * 477 because the Turkish word was to an Englishman wholly without meaning. So also may a system of. numbers adopted and used by a man to designate his goods be the subject of the same protection as an ordinary trade- mark (Z). A crest may be the subject of a trade-mark (m). 7. The principle which applies to the case of a man selling his own goods as the goods of another applies to the case of a man using the name of another for the purpose of reaping the (e) Hall V. Barrows, 33 L. J. Ch. 204 ; surance Society v. London and Provin- Bury V. Bedford, ib. 465. See Canham cial Joint Stock Life Assurance Co., 11 V. Jones, 2 V. & B. 218. The original Jur 938 ; London Assurance v. London inventor of a new manufacture, and per- and Westminster Assurance Corpora- sons claiming under him, are alone en- tion, 32 L. J. Ch. 664 ; Colonial Life titled to designate such manufacture as Assurance Co. v. Home and Colonial "the original ; " and if he or they have Life Assurance Co., 83 L. J. Ch. 741. been in the habit of so designating their (j) Macandrew v. Bassett, 33 L.J. manufacture, aninjunction will be grant- Ch. 561. ed to restrain another manufacturer (k) 6 Beav. 69, n. from applying the designation to his (/) Ainsworth v. Walmsley, 1 L. E. goods. Cocks V. Chandler, 11 L. K. Eq. 518. Eg. 446. (m) Beard v. Turner, 13 L. T. N. S. (/) Perry v. Truefitt, 6 Bear. 66; 746; Standishu.Whitwell,14W.R.512. Braham v. Bustard, 1 H. & M. 447; l Where the complainanthadformany Kinahan v. Bolton, l5 Ir. Ch. 75. years manufactured steel pens, which (g) Burgess v. Burgess, 8 D. M. & G. had acquired a high reputation in the 896 ; Edelsten v. Vick, 11 Ha. 84. See market, and marked them " 303 extra Canham v. Jones, 2 V. & B. 218 ; Bra- fine," and with his name, the defendant ham V. Bustard, 1 H. & M. 447. was restrained from making similar pens (A) Braham v. Bustard, ib. ; Young v. with the same number and his own Macrae, 9 Jur. N. S. 822; Browne v. name. Gillott v. Esterbrook, 47 Barb. Freeman, 4 N. E. 476, 12 W. E. 805; 455. Williams v. Osborne, 18 L. T. N. S. ■ Congress and Empire Spring Co. v. 948. High Eook Congress Spring Co., 57 ' (i) London and Frovincial Law As- Barb. 526. [496] CH. XXI.J THE PIRACY OP TRADE-MARKS. * 478 benefit of the reputation which that other has already acquired in the market. A man has a right to set up a shop anywhere for the sale of goods under his own name, although another may have been long selling the same class of goods under the same name, and although the goods, as associated with his name, may have acquired a reputation in the market. The mere user by a man of his own name is of itself no evidence of fraud, but there may be other elements in the case, showing that the name has been fraudulently used for the purpose of reaping the benefit of the reputation which another has already acquired. It is in each case a matter of evidence, whether or not the use of the name has been fraudulent (w). If a man changes his name and assumes another and sets up a business in the neighborhood of a person who has long carried on the same business under the name which he has assumed, fraud will be, as a general rule, presumed (o). 8. The ■ same principles which apply to the right to use a name are also applicable to the case of the use of a partner- ship firm or style. If the use of a partnership firm or style be bond fide, the court will not interpose ; but if there be evidence to show that the name has been taken for the purpose of having the benefit of the reputation which another has acquired in the market, there is a case of fraud (p). A man who has been in * the employment of a firm of * 478 reputation has a right on setting up a business of a i similar character to inform the public in any way he thinks fit that he has been in such employment ; but in so doing he must take especial care that it be not done in such a way as to mis- lead or lead to the belief that he is carrying on the business or a branch of the business of the firm whose name he uses (q). A man who has assigned the good-will of a business may, unless precluded by covenant, set up the same business in the immediate neighborhood, but he may not put himself forward as carrying on the same business, which he has assigned (r). (n) Rodgers v. Nowill, 6 Ha. 325 ; (o) Burgess v. Burgess, 3 D. M. & G. HoUoway v. Holloway, IB Beav. 209 ; 896. See Croft v. Day, 7 Bear. 84 ; Burgess v. Burgess, 3 D. M. & G. 896 ; Southorn v. Beynolds, 12 L. T. N. S. 75. Taylor v. Taylor, 23 L. J. Ch. 255 ; (p) Croft v. Day, 7 Beav. 84. Dentw. Turpin,2 J.&H.139; Churton (?) Gleuny v. Smith, 2 Dr. & Sm. V. Douglas, John. 174. See Sykes v. 476; Williams w. Osborne, 18 L. T.N. S. Sykes, 3 B. & C. 541 ; Foot v. Lee, 13 498 ; supra, p. 167. Ir. Eq. 490. [r) Shackle v. Baker, 14 Ves. 468 ; 32 [497] * 479 INJUNCTIONS TO EESTEAIN [CH. XXI. Upon the same principle a trader will be restrained from hold- ing himself out as being in business with another trader or from issuing circulars tending to lead the public to suppose that he has succeeded to the business of another trader. If the business of the latter suffers damage thereby, it is immate- rial that the words of the circular may be literally true (s). 9. A publisher or author has either in the title of his work or in the application of his name to the work, or in the par- ticular marks which designate it, a species of property similar to that which a trader has in his trade-mark, and may like a trader claim the protection of the court against such a use or imitation of the name, marks, or designation, as is likely in the opinion of the court to be a cause of damage to him in respect of that property (i). A man, however, has a full right to publish a similar work under the same title as that of another, if he represents it as distinct and original ; but he may not with- out authority advertise his own work as the continuation of another (u). * 479 10. * A man cannot by advertising his intention of publishing a periodical under a certain name and making preparations for issuing it acquire a right to the exclusive use of the name, the periodical not having appeared before bill filed(a;). 11. The name of the editor is not a necessary part of the title of a journal. In the absence of any special contract to that effect, the court will not restrain the owners of a journal from publishing it without the name of the editor («/). 12. If a trade-mark denotes the place or works where goods are made- or denotes a particular business, the exclusive right to use the mark passes to a purchaser Upon the sale and trans- fer of the place or works or the particular business (s). But Cruttwell V. Lye, 17 Ves. 336; Churton 947; Maxwell v. Hogg, 2 L.R. Ch.Ap. V. Douglas, John. 174 ; supra, p. 167. 307. (s) Harper v. Pearson, 3 L. T. N. S. (m) Hogg v. Kirby, 8 Ves. 215. See 547 ; Edgington v. Edgington, 11 L. T. Archbold v. Sweet, 1 M. & K. 162. N. S. 299; supra, pp. 169, 170. [x] MaxweU v. Hogg, 2 L. E. Ch. {t) Hogg V. Kirby, 8 Ves. 215 ; Lord Ap. 307. Byron v. Johnstone, 2 Mer. 29 ; Keene (y) Crookes v. Petter, 6 Jur. N. S. V. Harris, cited 17 Ves. 342; Seely 1131. V. Fisher, 11 Sim. 582; Spottiswoode v. {z} Motley v. Downman, 3 M. & C. 1. Clark. 2 Ph. 164 ; Prowett ». Mortimer, See Hall v. Barrows, 33 fi. J. Ch. 204 ; 2 Jur. N. S. 414 ; Clement v. Maddick, 1 Bury v. Bedford, i*. 465 ; Leather Cloth Giff. 98 ; Chappell v. Sheard, 2 K. & J. Co. v. American Cloth Co., 11 H. L. 117; Chappell y. Davidson,*. 123,8 D. 523; Banks ». Gibson, 34 Beav. 566; M. & G. 1 ; Ingram v. StiflF, 5 Jur. N. S. supra, p. 168. [498] CH. XXI.] THE PIRACY OP TRADE-MARKS. * 480 a trade-mark which specially denotes the particular persons by whom goods are made is not assignable. A trade-mark, how- ever, which, though it may in some respects indicate the persons by whom the goods are manufactured, refers more closely to the place of manufacture, or to the particular business, than to the person of the manufacturer, or has, though it may origin- ally have denoted the persons by whom the goods are manu- factured, become a sign of quality, and has ceased to denote that a particular person is the manufacturer, is assignable (a).^ 13. Upon the formation of a partnership firm, a trade-mark to which one of the partners may be entitled becomes in the absence of any stipulation part of the partnership property (b). 14. The right to the use of a particular designation or part- nership style passes, on the death of a partner, to the surviving partnars or partner (c). On the death of a surviving partner it passes to his personal representatives (d!). On the dissolu- tion of a partnership, each of the partners has the right, in the absence of a stipulation to the contrary, to use it (e).^ 15. * Two or more persons may be tenants in com- * 480 mon in a trade-mark, and where such is the case, each of them has a right to sue alone in respect of the wrong done to himself (/). 16. The owner of a trade-mark and his agent cannot sue jointly, although the name of the agent appears on the trade- mark (^). 17. The right to a trade-mark being a personal right, the party complaining may proceed against the offending party in the country where he resides, wherever the injury- may have been done (A). An alien may sue without averring that the (a) Buryu. Bedford, 33 L.J. Ch. 465. (h) Collins Co. w. Brown, 3 K. & J. (6) lb. See Banks v. Gibson, 34 426; Collins Co. v. Cowen, ib. 430; Beav. 566. Collins Co. v. Reeyes, 4 Jur. N. S. (c) Webster v. Webster, 3 Sw. 490, 867. n. ; Lewis v. Langdon, 7 Sim. 421 ; i The name established for a hotel is supra, p. 168. a trade-mark ; and a tenant, by giving a (rf) Hine v. Lart, 10 Jur. 107. See particular name to a building, as a sign Dent V. Turpin, 2 J. & H. 139. of the hotel business for which he uses (e) Banks v. Gibson, 34 Beav. 566. it, does not thereby make the name a See Smith v. Everett, 27 Beav. 446 ; fixture of the building, and the property Johnson v. Helleley, 2 D. J. & S. 446; of the landlord upon the expiration of supra, p. 167. the lease. Woodward v. Lazar, 21 Cal. (/) Dent V. Turpin, 2 J. & H. 139 ; 448. See, also, Howe v. Searing, 19 Batty V. Hill, 1 H. & M, 270 ; Southorn How. Pr. Eep. 14. u. Reynolds, 12 L. T. N. S. 75. 2 See Comstock u. Moore, IS How. (g) Delondre v. Shaw, 2 Sim. 237. Pr. 421. [499] * 481 INJUNCTIONS TO RESTRAIN [CH. XXI. goods bearing the pirated mark have been actually sold in this country. It is sufficient that the counterfeit mark has been imposed on the goods in this cotintry (i). A foreign sov- ereign or state may, like an individual, have an injunction to restrain the undue or unauthorized use of his or its name (j). 18. To entitle a person to sue it is not necessary to aver special damage ; it is sufficient to show that a general injury has been done to the plaintiff (^). 19. If other parties are necessary for any part of the relief prayed, that is sufficient to sustain a demurrer for want of parties, and it is no answer to such demurrer to say that that part of the relief may be waived at the hearing (Z). 20. The interference of a court of equity to restrain the piracy of trade-marks being founded on pure equitable prin- ciples (to), a trader will not be protected in the exclusive use of a trade-mark, if the trade-mark contains misstate- * 481 ments of any * material fact calculated to deceive the public. A trader who falsely leads purchasers to be- lieve that they are buying something different from that which in fact he is selling, or is guilty of any misrepresentation with respect to his goods as to amount to a fraud upon the public, disentitles himself as against a rival trader to that relief in a court of equity which he would have otherwise obtained (n). ^ If a trade-mark represents an article as protected by a patent, when in fact it is not so protected, such a statement amounts primd facie to a misrepresentation of an important fact, which would disentitle the owner of the mark to relief in a court of equity against any man who pirated it (o). In the case of (i) Collins Co. v. Brown, 3 K. & J. [1) Dent v. Turpin, 2 J. & H. 139. 426 ; Collins Co. v. Reeves, 4 Jur. N. S. See, as to parties, supra, pp. 207, 208. 867. The rule as to the right of an (m) See Maxwell v. Hogg, 2 L. R. alien to sue for the piracy of his trade- Cli. Ap. 807 ; supra, pp. 17, 200, 201. mark is the same in the State of New (ra) Pidding v. How, 8 Sim. 477 ; York. Taylor v. Carpenter, 2 Sandf. Perry v. Truefitt, 6 Beav. 76 ; Edelsten Ch. (Amer.) 603, 3 Story (Amer.),463, v. Edelsten, 1 D. J. &'S. 185; Collins 2 Wood. & Min. 1. It is not a bar to a Co. w. Eeeres, 4 Jur. N. S. 865; Leather suit there that a remedy is not recipro- Cloth Co. v. American Cloth Co., 11 caUy allowed to aliens in the country H. L. 528. to which the alien who sues belongs. (o) Leather Cloth Co. v. American lb. ; Coats v. Holbrook, 2 Sandf. Ch. Cloth Co., 11 H. L. 548, per Lord (Amer.) 587. Kingsdown ; Flavel v. Harrison, 10 Ha. (_;') Emperor of Austria v. Day, 8 D. E. & J. 215, per Turner, L. J. i Hobbs v. Francais, 19 How. Pr. Rep. (k) Dent v. Turpin, 2 J. & H. 139. 567 ; Fetridge v. Wells, 13 How. Pr. 385. See Blofeld v. Payne, 4 B. & A. 410. rsooi CH. XXI. j THE PIRACY OP TRADE-MARKS. * 482 Edelsteii v. Vick (p), Wood, V. C, doubted whether the rule would be the same if there had been originally a patent, and the statement in the trade-mark being true when first intro- duced, had been continued after it had ceased to be true. But there can be no distinction between the cases. If the word " patent " be not so used as to indicate the existing protection of a patent, but merely as part of the designation of an article thrown into the market, nobody is meant to be deceived, and nobody is deceived. A patent may have expired and be known to have expired fifty years ago, and yet the name of patent may have become attached to the article, and be used in the trade as designating it. But if the trade-mark represents the article as protected by a patent, when in fact it is not so protected, there is no difference whether the protection never existed or has ceased to exist. If the true effect of the trade-mark or label be to represent that the article stamped with it is pro- tected by a patent, and it is not so protected, there is mis- representation of a material fact, calculated to mislead the public, and sufficient to debar the plaintiff from relief against piracy in a court of equity (g) . If a trade-mark is not only a trade-mark properly so called, but contains statements * materially affecting the value of the goods to which it * 482 is affixed, these statements must be judged of like state- ments made in separate labels or advertisements (r). 21. The principle that a misstatement in a trade-mark will deprive a man of his right to apply to the court for relief, does not apply to the case of the use of the name of a firm by any but the original partners. The name of a firm may be used long after all the original partners have died, or have ceased to have any interest in the concern. By the usage of trade the name of a firm is understood not to be confined to those who first adopted it, but to extend to and include persons who have been afterwards introduced as partners, or persons to whom the original partners have transferred their business. The use, therefore, of the old trade-mark of a firm by the new 467; Morgan v. M'Adam, 36 L. J. Ch. (p) 11 Ha. 87. 228. But not when the goods have (q) Leather Cloth Co. v. American from the usage of many years acquired Cloth Co., 11 H. L. 523, 543. the designation in the trade generally (r) Leather Cloth Co. v. American of patent. Marshall u. Ross, 8 L.E.Eq. Cloth Co., 11 H. L. 523, 543, per Lord 651. Kingsdown. [501] * 483 INJUNCTIONS TO EESTEAIN [CH. XXI. partners or their successors is no fraud upon the public, but is merely a statement that they are carrying on the same business as was formerly carried on by the person or persons whose name constituted the trade-mark (s). The case, however, is different if a trade-mark be so completely personal in its nature, as necessarily to indicate that the goods to which it is affixed are the manufacture of a particular person. If an artist or artisan has acquired by his personal skill and ability a reputa- tion which gives his works or goods in the market a higher value than those of other artists or artisans, there is an imposi- tion on the public, if a man, to whom he has transferred his business, uses his name or trade-mark. A man may assign his business to another, but he cannot give him the right to use his name or mark, if the effect of the statement be necessarily to indicate that the goods to which it is affixed are the goods of the person whose name and mark they bear, and the value of the goods be materially affected by the statement (i). If, however, a trade-mark be a mark which refers more closely to the place of manufacture or to the particular business than to the firm of the manufactiirer, although it may originally have denoted the person by whom the goods were manufactured, or has become a sign of quality, and ceased to denote that * 483 a particular person * carries on the business, the as- signee of the locality is not guilty of a misrepresentation to the public in making use of the mark (m). 22. It has not been determined whether a mere puffing ex- aggeration in labels, &c.,is such a misstatement as will deprive a man of his right to the protection of the court. In HoUoway V. Holloway (x), the owner of a patent medicine was protected, notwithstanding his profession to cure thereby all manner of diseases, on the ground that the medicine was stamped and protected by law. The general question was left undeter- ,mined, but the rule would appear to be, that a mere puffing exaggeration, by which no reasonable man ought to be deceived, .goes for nothing («/). (s) Leather Cloth Co. v. American (x) 13 Beav. 209. ■Cloth Co., 11 H. L. 523. (y) lb. See Perry v. Truefitt, 6 (t) lb. Beav. 76. («) Bury V. Bedford, 38 L. J. Ch. 465. See Hall v. Burrows, i5. 204. £502] CH. XXI.] THE PIRACY OP TRADE-MARKS. * 484 23. The owner of a trade-mark who seeks the aid of the court for the protection of his mark must use due diligence in making the application. Delay or acquiescence may deprive a man of his right to the protection of the court. The suit should be instituted without delay after the discovery of the fraud (s).^ A protest however by the owner of the mark against the use of it by the other party (a), or advertisements cautioning the public against imposition (6), will disprove acquiescence, although there may have been for some time a colorable user. So, also, the consequences of delay may be excluded, if it can be shown that a man has continued to use the mark after being cautioned (c). 24. It is impossible to lay down any general rule as to what degree of resemblance is necessary to constitute the fraudulent or colorable imitation of a trade-mark. All that can be done is to ascertain in every case as it occurs, whether there is such a resemblance as that ordinary purchasers purchasing with ordinary caution are likely to be misled. There is no infringe- ment, although there may be certain resemblances between two * trade-marks, if there be not such a gen- * 484 eral resemblance as to deceive an ordinary purchaser. The question in all cases of the sort is, not whether a careful and cautious purchaser, or a person conversant with the par- ticular matter, or the public generally, or a majority of them, is likely to be deceived, but whether the unwary, the heedless, the incautious portion of the public would be likely to be deceived (jd[). ^ It is not necessary that the resemblance should be such as to deceive persons who should see the two marks placed side by side. If a purchaser looking at the (2) Chappell V. Sheard, 2 K. & J. facturerofsteelpens which were marked 117 ; Chappell v. Davidson, ib. 123 ; with his trade-mark, had placed upon Kinahan v. Bolton, 15 Ir. Ch. 75; his boxes a " caution " to the public to Beard u. Turner, 13 L. T. N. S. 746; beware ef pens similarly marked which Chubby. GriflSths, 35 Beav. 127; supra, were made by others, it was held that pp. 291-205. he had not thereby acquiesced in the (a) Motley v. Downman, 3 M.&C. 1. use of this trade-mark by others. Gil- (6) Kinahan v. Bolton, 15 Ir. Ch. 75. lott v. Esterbrook, 47 Barb. 455. c Harrison v. Taylor, 11 Jur. N. S. ■' Walton v. Crowley, 3 Blatchf. C. C. 408. R. 440. Clark v. Clark, 25 Barb. 79 ; [d) Leather Cloth Co. v. American Brooklyn White L. Co. v. Masury, ib. Cloth Co., 11 H. L. 523; Glenny v. 416. And the imitation of the manner of Smith, 2 Dr. & Sm. 476; Seixo v. putting up articles will be enjoined. Provizende, 1 L. R. Ch. Ap. 192. Williams v. Johnson, 2 Bosworth, 1. i Where the complainant, a manu- [503] * 485 INJUNCTIONS TO RESTEAIN [CH. XXI. article offered to him would naturally be led from the mark impressed on it to suppose it to be the production of a rival manufacturer, and would purchase it in that belief, the court considers the use of such mark to be fraudulent. The actual physical resemblance of the two marks is not the sole question for consideration. If the goods of a manufacturer have from the mark or device he has used become known in the market by a particular name, the adoption by a rival trader of any mark which will cause his goods to bear the same name in the market may be as much a violation of the rights of that rival as the actual copy of his device (e). If no one has in fact been deceived the court may give the defendant the benefit of the doubt (/), but the mere fact that no one has been deceived is immaterial if the resemblance is calculated to deceive an ordi- nary purchaser, nor does it signify whether the defendant has acted with a fraudulent intention or not. It is enough if even without any unfair intention he lias done that which is calcu- lated to deceive (^f). 25. Nor can a ti-ader, even with some claim to use it, adopt a brand the probable effect of which will be to lead the public to suppose that they are buying the goods of a rival trader (Ji). The fact that an article has been offered for sale to a * 485 person * who asked for the plaintiff's article is sufficient proof of fraud, though the article was not represented to be the plaintiff's article («'). The express direction to a manufacturer to imitate a man's way of making up his goods (7), or to put upon goods the trade-mark of another (&), is always a strong element of suspicion, but is not conclusive of fraud (Z). The change of one trade-mark for another, which resembles closely the trade-mark of another, is strong evidence of fraud (jm). (e) Seixo ». Provizende, 1 L. K. Ch. Cloth Co., 1 H. & M. 295 ; Edelsten v. Ap. 192. Edelsten, 1 D. J. & S. 185. (/) WooUam v. Katcliff, 1 H. & M. {j) WooUam v. EatcUff, 1 H. & M. 259; Browne v. JFreeman, 12 "W. K. 259. 305, 4 N. E. 476. (!c) Collins Co. v. Eeeves, 4 Jur. N. In) Leather Cloth Co. v. American S. 865; ColUus Co. <^. Walker, 7 W. E. Cloth Co., 1 H. & M. 295, 11 H. L. 523 ; 222. Glenny v. Smith, 2 Dr. & Sm. 476. (l) See Farina v. SiWerlock, 6 D. M. SeeEdelsten!;,Edelsten,lD.J.&S.185. & G. 214; Taylor v. Taylor, 23 L. J. Ill) Seixo V. Provizende, 1 L. E. Ch. Ch. 255 ; Macandrew v. Bassett, 33 L. Ap. 192. J. Ch. 561. {i) Leather Cloth Co. v. American (?«) Taylor u. Taylor, 23 L.J. Ch. 255. [504] OH. XXI.] THE PIRACY OP TRADE-MARKS. * 486 26. Where there is no actual trade-mark, but the manu- facturer merely employs certain symbols or indicia for the purpose of denoting his goods in the market, the more these symbols or indicia are employed by another, the more the sus- picion increases that there is an intention to deceive (w). The fact that a trade-mark, or a name which accompanies the other symbols or indicia, may not have been taken (o), or that only a part of the mark has been taken (p), will not rebut the con- clusion of fraud. It is no excuse that the person to whom the goods have been sold may be well aware, or may be informed, that they are not the manufacture of the person whose mark, or symbol, or indicia they bear, if they have been supplied for the purpose of being sold again in the market (§'). 27. The making up of goods in a form so as to resemble the way in which another man makes up his goods (r), the use of wrappers for goods resembling those employed by another man (s), or of labels, resembling in shape, color, size, or general * appearance those imposed by another man * 486 on his goods (f), the arrangement of type in such a way as to strike the eye and mislead the public (m), the use of similar words, letters, numbers or figures, or the arrangement of them in a similar mode (x), or other resemblances of a like nature («/), are always elements of a suspicious nature, and in) Kriott V. Morgan, 2 Keen. 213 ; & G. 896 ; Edelsten v. Edelsten, 1 D. WooUam v. Katcliff, 1 H. & M. 261; J. & S. 185; Harrisons. Taylor, llJur. Leather Cloth Co. v. American Cloth N. S. 408. Co., ib. 292. See Croft v. Day, 7 Beav. (u) Day v. Binning, 1 Coo. C. C. 88. 489 ; Burgess v. Burgess, 3 D. M. & G. (o) Braham v. Bustard, 1 H. & M. 896 ; Taylor v. Taylor, 23 L. J. Ch. 447; Kinahan v. Bolton, 15 Ir. Ch. 255; Foot «. Lea, 13 Ir. Eq. 490; Gleu- 75. ny v. Smith, 2 Dr. & Sm. 476 ; Kina- (») Kinahan v. Bolton, 15 Ir. Ch. han v. Bolton, 15 Ir. Eq. 75. 76. (x) Croft V. Day, 7 Beav. 84; Ran- (?) Sykes v. Sykes, 3 B. & C. 541 ; some v. Bentall, 3 L. J. Ch. N. S. 161 ; Chappell V. Davidson, 2 K. & J. 117. Purser v. Brain, 17 L. J. Ch. 141 ; Tay- (r) Hollo-way v. HoUoway, 13 Beav. lor v. Taylor, 23 L. J. Ch. 255 ; Kina- 209 ; Taylor v. Taylor, 23 L. J. Ch. han v. Bolton, 15 Ir. Ch. 75 ; Glenny v. 255; WooUam v. Katcliff, 1 H. & M. Smith, 2 Dr. & Sm. 476; Ainsworth y. 259 ; Braham v. Bustard, ib. 447. Walmsley, 1 L. R. Eq. 518. (s) Blofield V. Payne, 4 B. & A. [y) Canham v. Jones, 2 V. & B. 220 ; 410. Sedon v. Senate, cited ib. ; Knott v. (t) Croft V. Day, 7 Beav. 84 ; Day v. Morgan, 2 Keen. 219 ; Spottiswoode v. Binning, 1 Coo. C. C. 489 ; HoUoway v. Clark, 2 Ph. 154 ; Gout v. Aleploglu, 6 HoUoway, 13 Beav. 209 ; Shrimpton v. Beav. 69, n.; Franks w. Weaver, 10 Beav. Lalght, 18 Beav. 165 ; Taylor v. Tay- 297 ; Edelsten v. Edelsten, 1 D. J. & S. lor, 23 L. J. Ch. 255 ; Edelsten v. Vick, 185 ; Glenny v. Smith, 2 Dr. & Sm. 11 Ha. 84 ; Burgess v. Burgess, 3 D. M. 476., [505] * 487 INJUNCTIONS TO RESTRAIN [CH. XXI. will generally be enough to lead necessarily to the conclusion of fraud. Fraud, however, will not be presumed unneces- sarily (z). If the act may be innocent, the court will pause before determining it to be fraudulent (a). In Farina v. Silverlock (6), Lord Cranworth recognized the right of a printer to print and sell generally labels to other persons than the proprietor (c). As a general rule, however, a person who, without the authority of the owner of the mark or brand, stamps it upon goods and sells the goods so stamped to another, lays himself open to the presumption that he is a party to the fraud (d). If the acts complained of are likely to deceive, a denial of intention is not sufficient (e). 28. In a case where goods were sold bearing the name * 487 of a certain * man, but under a representation that they were, in fact, the manufacture of another person, and not of the man whose name they bore, Wood, V. C, held that there was not such a representation given to the world of the goods being the goods of the plaintiff as to justify the court in interfering (/). 29. False statements with respect to goods and false repre- sentations which merely amount to a slander of the name or goods of another must be carefully distinguished from false representations, which hold out that goods made by one man are, in fact, the manufacture of another. A false statement by a man that his goods are the same as the goods of another, when, in fact, they are inferior, or are even qu^te different, or that he is the first inventor of a certain article, when, in fact, the article made by him is merely a spurious imitation of an article made by another, or that he has the means of using the same processes which another uses by the employment of a person who has been in his service, or that he has obtained a prize medal from a particular sort of goods at an exhibition, goes for (z) Motley v. Downman, 3 M. & C. ib) 6 D. M. & G. 214. 17; Spottiswoode k. Clark, 2 Ph. 156; (c) See Delondre v. Shaw, 2 Sim. Welch V. Knott, 4 K. & J. 747 ; Chap- 237. pell V. DaTidson, 8 D. M. & G. 1; (d) Pierce v. Franks, 15 L. J. Ch. WooUam v. RateUff, 1 H. & M. 259. 122 ; Collins Co. v. Reeves, 4 Jur. N. (a) Spottiswoode v. Clark, 2 Ph. S. 866; CoUins Co. v. Walker, 7 W. R. 156; Farina v. Silverlock, 6 D. M. & G. 222. 214; Welch v. Knott, 4 K. & J. 747; (e) Edelsten v. Vick, 11 Ha. 84. Williams v. Osborne, 13 L. T. N. S. (f) Ainsworth t. Walmsley, 1 L. E. 498. Eq. 518. [506] CH. XXI.] THE PIRACY OP TRADE-MARKS. * 488 nothing, so long as he does not represent that the goods which he makes or vends are in fact the manufacture of another, and there is not such a general resemblance between them as to deceive the public (^) . 30. False representations which mierely amount to the slan- der of the name or reputation of another, or are calculated to bring the name or reputation of another into contempt, do not furnish a ground for the interposition of a court of equity. The remedy, if any, is at law for a libel (A). A court of equity cannot interpose, unless a case of actual damage to property can be made out. Thus, in Glark v. Freeman (t). Lord Lang- dale would not restrain a man from selling pills, which he rep- resented falsely to be the pills of an eminent physician, on the ground that, as the latter was not in the habit of sell- ing his pills, no * actual damage had arisen to his * 488 property (y). So, also, in Martin v. Wright (^), Shad- well,V. C, would not i-estrain a man from exhibiting in a diorama an enlarged copy of the picture of an eminent artist (l}. In Byron v. Johnstone (m), on the other hand, a man was re- strained from publishing poems, which he falsely represented to be the poems of Lord Byron, on the ground that as Lord Byron was in the habit of publishing his poems for sale, the act of the defendant was an actual injury to his property. So, also, in Eouth v. Webster (n), Lord Langdale restrained the directors of a company from publishing a prospectus of the company, falsely representing a man, as a trustee of the com- pany, on the ground that the consequence might be to expose him to all sorts of liabilities and so be a cause of damage to his property. 31. At law the remedy for the piracy of a trade-mark is by an action ou the case in the nature of a writ of deceit. Fraud (g) Canham v. Jones, 2 V. & B. 218 ; v. Tisher, 11 Sim. 582. See Emperor Seely v. Fisher, 11 Sim. 582 ; Batty v. of Austria v. Day, 3 D. F. & J. 240. Hill, 1 H. & M. 270; Brown v. Freeman, (i) 11 Beav. 112. 4 N. R. 476 ; Leather Cloth Co. v. m But see per Lord Cairns, L. J., 2 American Cloth Co., 11 H. L. 523 ; but L. U. Ch. Ap. 810. see, now, the Exhibition Medals Act, (k) 6 Sim. 297. 1862, 26 & 27 Vict. c. 119. See, also, U) See, also, Seely v. Fisher, 11 Sim. Morison v. Moat, 9 Ha. 241 ; Glenny v. 582. Smith, 2 Dr. & Sm. 476. (m) 2 Mer. 29. (h) Clark «. Freeman, 11 Beav. 112 ; (n) 10 Beav. 563. Martin v. Wright, 6 Sim. 297; Seely [607] * 489 INJUNCTIONS TO RESTRAIN [CH. XXI. is of the essence of the action. Lord Cottenham held, in Mill- ington V. Pox (o), that the remedy in equity does not, like the remedy at law, depend on fraud ; and that a man whose trade- mark or symbol is used or appropriated by another may have an injunction even although the user may have been innocent and in ignorance of the prior appropriation of the mark Qp'). There is room, however, to doubt whether the principle laid down by Lord Cottenham in Millington v. Fox (g), can be considered sound law. The fundamental rule being, that no man shall pass off his own goods as the goods of anotlier, proof of fraud would appear to be as necessary in equity as it is at law. A court of equity may, it is true, presume fraud in cases in which the same inference could not be made at law ; but this circumstance does not justify the proposition, that the remedy in equity is not, like the remedy at law, founded * 489 on fraud (r). The doctrine, however, * laid down in Millington v. Fox, must be considered as law until the question comes before a higher tribunal (s). 32. The owner of a trade-mark, whose mark has been ille- gally taken by another, is not bound to rely upon his assur- ance or promise not to repeat the illegal appropriation of the mark, but is entitled to the protection of the court by injunc- tion (ty. If a man at the desire of another imposes upon goods a trade-mark which belongs to a third party, the court will restrain them both by injunction (m). Every man who sells the goods lends himself to the perpetration of the fraud, and may be restrained by injunction (v). The owner of a trade-mark may obtain an injunction to restrain a dock com- pany or a wharfinger from parting with goods to which his (o) Z M. & C. 338. (s) Dixson v. Fawcus, 3 Bl. & El. (p) See Welch, v. Knott, 4 K. & J. 537 ; Edelsten i>. Edelsten, 1 D. J. & S. 747 ; Collins Co. v. Walker, 7 W. R. 185. 222 ; Burgess v. Hills, 26 Beav. 244 ; (t) Routh v. Webster, 10 Beav. 561 ; Burgess v. Hateley, ib. 249 ; Dixson v. Millington v. Eox, 3 M. & C. 338 ; Eawcus, 8 El. & El. 587 ; Edelsten v. Welch v. Knott, 4 K. & J. 747 ; Edel- Edelsten, 1 D. J. & S. 185 ; Macandrew sten v. Edelsten, 1 D. J. & S. 185. V. Bassett, 33 L. J. Ch. 561. («) Collins Co. v. Reeves, 4 Jur. N. (q) 3 M. & C. 338. S. 865 ; Collins Co. v. Walker, 7 W. K. (r) See Purser v. Brain, 17 L. J. Ch. 222. 141 ; Leather Cloth Co. v. American (w) Coats v. Holbrook, 2 Sandf. Ch. Cloth Co., 11 H. L. 523; Glenny v. (Amer.) 587; Chubb v. Griffiths, 35 Smith, 2 Dr. & Lm. 476. Beav. 127. [508] CH. XXI.] THE PIRACY OP TRADE-MARKS. * 490 mark has been fraudulently affixed (a;). A man, however, who has innocently advanced moneys upon dock warrants for goods to which a certain trade-mark has been fraudulently affixed may, upon offering to remove the mark, have an injunc- tion dissolved which has been granted to restrain the wharf- inger from parting with the goods («/). In a case where a wharfinger who had received notice that certain goods in his possession were branded with a spurious mark, and that an in- junction was about to be applied for to restrain him from part- ing with the goods, refused to deliver them up to the holder of the warrant, the court restrained an action of damage for the non-delivery (2). 33. A man whose trade-mark has been illegally taken by another is entitled to an account of profits in respect of the illegal user of the mark. A man who puts upon his goods the trade-mark of another cannot be heard to say that he did so innocently and witliout knowing to whom the mark belonged. Though he may not have known to whom the mark be- longed, he must at least * have known that he had him- * 490 self no -right to the mark, and this knowledge will make him liable to an account (a). A man, however, who inno- cently buys and afterwards sells goods bearing a spurious trade-mark is not liable to an account, unless in respect of sales made and profits acquired after knowledge of the spuriousness of the mark (h). 34. In taking the account, a man will not have to account for every species of profit made during the previous six years, but only for so much as is properly attributable to the user of the mark (c), nor will he be charged with bad debts as profits ; but, on the other hand, he cannot charge the plaintiff with the cost of manufacturing the goods in respect of which the bad debts have been incurred (^d'). 36. When one of two persons entitled in common to the use of a trade-mark is suing alone, he should on praying for the (x) Ponsardin v. Peto, 33 Beav. 642; Knott, 4 K. & J. 747 ; Cartier v. Car- Hunt V. Maniere, 34 Beav. 157. lisle, 31 Beav. 292. See Harrison i>. (v) Ponsardin v. Peto, 33 Beav. 642. Taylor, 11 Jur. N. S. 408. (z) Hunt V. Maniere, 34 Beav. 157. (6) Moet v. Couston, 33 Beav. 578. (a) Burgess v. Hills, 26 Beav. 244; (c) Cartier v. Carlisle, 31 Beav. 292. Burgess «. Hateley,!6. 251; Collins Co. (d) Edelsten v. Edelsten, 10 L. T. V. Walker, 7 W. R. 222 ; Welch v. N. S. 780. [509] * 491 INJUNCTIONS TO EBSTRAIN [CH. XXI. account pray for the payment to himself of such part of the profits as he may be entitled to (e) . 36. On an inquiry as to what damage has accrued to a man from the unlawful use by another of his trade-mark the onus lies on him to prove special damage by loss of custom or other- wise, and it will not be assumed in the absence of evidence that the amount of goods sold by the defendant under the fraudulent trade-mark would have been sold by the plaintiff but for the defendant's unlawful user of the mark (/). 37. The defendant must, if required to do so for the pur- poses of the account or the inquiry as to damages, disclose the names of all persons to whom he has sold any goods with the mark imposed on them. If he be unable to do so, he may then be required to disclose the names of all persons to whom he has sold any goods which he will not swear positively were not stamped with the mark (^). 38. The question of costs turns upon the conduct * 491 of the parties in * the matter. A man whose trade- mark has been taken by another is entitled to the costs of the injunction. If the defendant does not contest his right, but offers to submit to the injunction with costs, the plaintiff has obtained all he is entitled to, and should not bring the cause to a hearing. If he asks for something more, and brings his cause to a hearing but fails to make out his right, he loses his right to the costs of the suit. But if the defendant upon notice of the plaintiff's right and the fact of its violation', in- stead of submitting to the injunction with costs, contests the plaintiff's right or refuses any of the terms to which the plain- tiff is entitled, the cause may be brought to a hearing and the plaintiff will have the costs of the suit (K). Infancy will not protect a man from paying the costs of the suit (i). (e) Dent t>. Turpin, 2 J. & H. 139. Farina v. Silyerlock, 4 K. & J. 650; (/) Leather Cloth Co. v. Hirschfield, Burgess v. Hills, 26 Beav. 244 ; Burgess 1 L. R. EcL. 299. v. Hateley, ib. 251 ; Cartier v. Carlisle, (g) lb. 1 H. & M. 295. See supra, 31 Beav. 292; WooUam v. Ratcliff, 1 H. p. 473. & M. 259 ; Edelsten v. Edelsten, 1 D. J. (h) Millington v. Eox, 3 M. & C. & S. 185 ; Moet v. Couston, 33 Bear. 338 ; Colburn v. Simms, 2 Ha. 561 ; 678 ; supra, p. 228. Pierce v. Franks, 15 L. J. Ch. 122 ; (i) Chubb v. Griffiths, 35 Bear. 127. Chappell «. Davidson, 2 K. & J. 123 ; [510J CH. XXI.J THE PIRACY OP TRADE-MARKS. * 491 39. A man who lias bond fide advanced moneys before bill filed upon the security of goods bearing a counterfeit trade- mark has priority in respect of his advances and costs over the plaintiff's costs of suit (^).^ (k) Ponsardin v. Peto, 33 Beav. 642. found in Act of Congress of July 8, 1 The statute provisions in the United 1870, oh. 230, §§ 77-84. - States in relation to trade-marks will be [511] ■492 INJUNCTIONS AGAINST BREACH [CH. XXII. * 492 * CHAPTER XXII. INJUNCTIONS IN RESPECT OP COVENANTS OR AGREEMENTS. SECTION I. — INJUNCTIONS AGAINST BREACH OF COVENANT OR AGREEMENT. 1 & 2. Jurisdiction of court and principles upon wliich it is exercised. 3. Terms on whicli court may order motion to stand over or may grant injunction. 4. Contract must be such that it may be specifically enforced. 5. Conduct of the party who makes the application will be taken into consideration. 6. Rights of other parties taken into consideration. 7. No equitable construction of a covenant distinct from its legal construction. 8-^14. Rules of construction of covenants. 16 & 16. Implication of covenants. 17. Plan if referred to read along with the agreement. 18. Parties. 19. Reversioner may sue. 20. Varieties of covenants. 21. Certain negative covenants the breach of which is restrained by injunction. 22. Injunction will not be granted where covenant is uncertain. 23-25. Covenants in restraint of trade. 26. Restriction in point of time in such covenants. 27. On what the reasonableness or unreasonableness of the restriction depends. 28-31. Cases illustrating the subject. 32. Covenant not to make patented articles not in restraint of trade. 33. When restraint is limited in space, how the distance is measured. 34. Agreement in restraint of trade is divisible. 35. Consideration in contracts in restraint of trade. 36. Covenant in restraint of trade not implied, except in certain cases. 37. Contracts with a penalty. Liquidated damages. 38. Use of these terras in an instrument not conclusive. 39-42. How they are construed. 43. Court will not determine on interlocutory application whether sura reserved is a penaltj^ or liquidated damages. 44. Injunctions not granted when damages are liquidated. 45. Violation of agreement not to apply to Parliament restrained. 46. But doubtful in case of covenant not to oppose a bill in Parliament. 47 & 48. Importation of a negative quality into an affirmative agreement. 49. Negative quality not imported into an agreement which cannot from its nature be specifically enforced. 50. May be imported wbere some of the stipulations are distinct and separate from the rest of the agreement. 51. Nor into a contract which is substantially affirmative. [512] CH. XXII.] OP COVENANT OR AGREEMENT. * 493 52. But may be into a charter-party. 53. Negative qualitj'not imported into an agreement unless the party who seeks the aid of the court has performed his own part of it. 54 & 55. Case of an agreement containing both negative and afSrmative stipulations. 56-58. Enforcement of covenants by injunction against persons taking with notice. 59. Consideration in reference to granting perpetual injunctions. 60 & 61. In reference to mandatory injunctions. 1. The jurisdiction of courts of equity by interlocutory in- junction against breach of covenant or agreement, is in aid of the legal right, and has been assumed for the advancement of justice. The jurisdiction is exercised either by way of injunc- tion or by way of specific performance (a). The consideration and principles iipon which the court acts in restraining by injunction breaches of covenant differ in a material respect from those upon which it acts in decreeing specific perform- ance. It is not the practice of the court to decree specific performance of part of an agreement, where there are other parts which it cannot carry out. Unless the whole agreement can be specifically enforced, and complete justice be done between the parties, the court will, as a general rule, decline to interfere (6). The court will not interpose partially, ex- cept in cases in which the parts of the agreement, which can- not be specifically enforced, are independent of those which may be specifically performed (c), or are subordinate provis- ions ((^). The consideration and principles, upon which the court interferes by way of injunction, rest upon irreparable injury. The court does not look to the effect which may be ulti- mately produced by the restraint which is placed on the party who is disposed to break his contract, but gives all the relief in its power, and leaves nothing unperformed which it * can be ever called upon to perform. In all cases where * 493 specific performance can be decreed, the jurisdiction by injunction will attach as a matter of course, but it is not con- fined to such cases, but will be exercised in all cases where it can operate to bind men's consciences as far as they can be (a) See Hunt v. Hunt, 8 Jur. N. S. (c) Croome v. Lediaid, 2 M. & K. 86. 251 ; Gibson v. Goldsmid, 5 D. M. & G. (6) Gervais v. Edwards, 2 Dr. & 767 ; Kemot v. Potter, 3 D. F. & J. War. 80; South Wales Co. v. Wythes, 447; Ogden v. Fossick, 32 L. J. Ch. 5 D. M. & G. 880; Kemot v. Potter, 3 73. D. F. & J. 447 ; Ogden v. Fossick, 32 {d) Blackett v. Bates, 2 H. & M. 270. L. J. Ch. 73. 33 [513] * 494 INJUNCTIONS AGAINST BREACH f CH. XXII. bound to a true and literal performance of their agreements. A court of equity will not suffer men to depart from their agreements at their pleasure, leaving the party with whom they have contracted to the mere chance of damages which a jury may give (e). The court will not refrain from granting an in- junction only because there are other covenants to be performed which may be possibly broken hereafter (/). The interfer- ence of the court by way of injunction cannot however be had, unless the part of the agreement which is sought to be enforced is separable from, and forms a distinct part of the agree- ment (^).-' 2. The jurisdiction of the court by way of interlocutory injunction against breach of covenant or contract being in aid of the legal right, and having for its object the protection of the property from irreparable damage pending the trial of the right, a man who seeks the aid of the court must be able -to show a good primd facie legal title to the right which he asserts (A). If the right at law under the covenant is clear or fairly made out, and the breach of it is clear or fairly made out, and serious injury is likely to arise from the breach, it is the duty of the court to interfere before the hearing to restrain the breach. But if the right at law under the covenant is not clear, or is not fairly made out, or the breach of it is doubtful and no irreparable injury can arise to the plaintiff, pending the trial of the right, the case resolves itself into a question of comp&,rative injury, whether tlie defendant will be more damnified by the injunction being granted or the plaintiff by its being withheld (J). It is not necessary that the * 494 breach in respect of which the interference * of the court is sought should have been actually committed : it is enough that the defendant claims and insists on his right to do the act complained of, although he may not have actually (e) Lumley v. Wagner, 1 D. M. & G. (t) 'Wilkinson v. Rogers, 2 D. J. &S. 619 ; De Mattos v. Gibson, 4 D. & J. 62, 69 ; supra, pp. 208-210. See, as to 282. irreparable injury, supra, p. 199. (/) Rigby V. Great Western Rail- ^ Where covenants, in lorm indepen- way Co., 16 L. J. Ch. 271, per Wigram, dent, are in fact part of the same transao- V. C. tion and mutual, equity will restrain the [g] Kernott). Potter, 3 D. F. & J. 459. enforcement of one upon the failure of (A) Capes v. Hutton, 2 Russ. 357 ; the other. King v. Lindsay, 3 Ired. Sainter v. Ferguson, 1 Mac. & G. 289 ; Ch. 77. supra, p. 196. [514] CH. XXII.] OP COVENANT OR AGREEMENT. * 495 done it (k'). But the court will not interfere unless it is clear that a breach is intended. The court will not assume that a man means to violate his agreement (Q. 3. The court may at its discretion, as a condition of order- ing the motion to stand over, require the defendant to keep an account and give an undertaking as to damages (m) ; or on granting an injunction may require the plaintiff to give an un- dertaking as to damage or to submit to account, as the court may direct (?t). The circumstance that a lessor has the right of re-entry for breach of a covenant does not preclude him from coming to the court to restrain the breach (o). 4. But to warrant the interference of the court, it is not enough that the right at law under the covenant or contract be clear and the breach be clear. It is in all cases necessary that the covenant or contract should be of such a nature that it can consistently with the rules and principles of the court be speci- fically enforced. If the covenant or contract is from its nature such that the court cannot enforce specifically its performance, or if, from the nature of the act to be done or refrained from, the remedy lies peculiarly, at law, and a full and adequate compensation can be had there, the court will not interfere (p). Thus, the court will not entertain jurisdiction where the claim sought to be .enforced is a mere money claim (g'), or has been * already treated between the parties -as a proper * 495 subject for pecuniary compensation (r). Nor will the court entertain jurisdiction in respect of contracts for building or other work (s), unless a case of fraud can be made out (t), {k) Tipping v. Eckersley, 2 K. & J. way Co., 3 K. & J. 675 ; Munro v. "Wiv- 264 ; supra, p. 198. enhoe, &c.. Railway Co., 11 Jur. N. S. (I) Foster v. Birmingham, Wolver- 613 ; Try on Specific Perform., 17-20. hampton, &c.. Railway Co., 2 W. R. (?) Todd v. Gee, 17 Ves. 273 ; Sains- 378. See Moses v. Taylor, 11 W. R. 81. bury v. Jones, 2 Bear. 462 ; Glennie v. (m) Rigby v. Great Western Railway Imri, 3 Y. & C. 436 ; Coles v. Sims, 5 Co., 2 Ph. 44; Low v. Innes, 10 Jur. D. M. & G. 1. N. S. 1037. (r) Paris Chocolate Co. v. Crystal (n) East Lancashire Railway Co. v. Palace Co., 3 Sm. & G. 119. See ■ Hattersley, 8 Ha. 72 ; Ingram v. Stiff, Wood v. SutcUffe, 2 Sim. N. S. 168. 5 Jur. N. S. 947 ; supra, pp., 210-212. But see Ainsworth v. Bentley, 14 W. (o) Parker v. Whyte, 32 L. J. Ch. 520. R. 630 ; supra, p. 200. j) Collins V. Plumb, 16 Ves. 454; (s) Ambrose v. Dunmow Union, 9 Mann v. Stephens, 15 Sim. 379 ; Eur- Beav. 508 ; Kirk v. Bromley Union, 2 ness Railway Co. v. Smith, 1 De G. & Ph. 640 ; Paxton v. Newton, 2 Sm. & S. 299 ; DoUfus o. Piekford, 2 W. R. G. 437 ; South Wales Railway Co. v. 220 ; Alexander v. Hammond, 3 W. R. Wythes, 1 K. & J. 186, 5 D. M. & G. 880. 145 ; Holmes v. Eastern Counties Rail- («) Waring v. Manchester, Sheffield, [515] * 496 INJUNCTIONS AGAINST BREACH [CH. XXII. or unless it can be shown that the accounts arising out of the contract are so complicated that they cannot be satisfactorily taken at law (u) ; nor will the court entertain jurisdiction in the case of covenants or agreements for personal services, or involving duties of a personal and confidential character (»). Nor will the court interfere if the covenant is vague, indefinite, or uncertain in its terms («/), or if it appears in its form to be harsh and oppressive (s), or if the contract is of such a nature that one of the contracting parties would gain considerable advantage at the expense of the other from its enforcement, while the other would gain no corresponding benefit (a). 5. The conduct of the party who seeks the aid of the court will be taken into consideration upon the application for au injunction. A man who comes to the court to restrain the breach of a covenant or contract must be able to show that he comes with clean hands (&). He cannot have relief, unless it appear that he has actually carried out, as far as in *496 him lies, his own part of * the agreement (c), and un- less' he can show that he has used due diligence in making the application. Delay or acquiescence may disentitle him to relief (c?). A covenantor who seeing a covenantee spend moneys upon property in doing acts which are incon- sistent with the terms of the covenant, but upon the faith that no obstacle will be afterwards thrown in the way of his enjoy- ment, stands by and makes no objection while the moneys are being expended (e), or whose own acts have been inconsistent and Lincolnshire Railway Co., 7 Ha. (a) Shrewsbury and Birmingham 482, 2H. &Tw. 239; M'lntoshw. Great Railway Co. v. London ^ and North Western Railway Co., 2 De G. & S. Western Railway Co., 6 H. L. 113; 759. Virers v. Tuck, 1 Moo. P. C. N. S. (u) M'Intosh V. Great Western Rail- 516. way Co., 3 Sm. & G. 146 ; supra, p. 58. (b) See Stiff v. Cassell, 2 Jur. N. S. {x) Pickering v. Bishop of Ely, 2 Y. 348 ; Maythorne v. Palmer, 11 Jur. N. & C. C. C. 249 ; Johnson v. Shrewsbury S. 230 ; supra, pp. 17, 200, 201. and Birmingham Railway Co., 3 D. M. (c) Stocker v. Wedderburn, 8 K. & & G. 914 ; supra, pp. 50, 51. J. 405 ; De Mattos v. Gibson, 4 D. & J. (y) Mann v. Stephens, 15 Sim. 379 ; 276 ; Peto v. Brighton, Uckfield, and Paris Chocolate Co. v. Crystal Palace Tunbridge Wells Railway Co., 1 H. Co., 1 Sm. & G. 119; De Mattos v. &M. 468; Pechter v. Montgomery, 38 Gibson, 4 D. & J. 276; Bernard v. Bear. 22. Meara, 12 Ir. Ch. 389; Armstrong {d) Powell w. Allarton, 4 L. J. Ch. V. Courtney, 15 Ir. Ch. 138 ; Low v. N. S. 91 ; Moses v. Taylor, 11 W. R. Innes, 10 Jur. N. S. 1037. 81 ; Maythorne v. Palmer, 11 Jur. N. (z) Kimberley v. Jennings, 6 Sim. S. 230 ; Mitchell v. Steward, 1 L. B. 340; Talbot v. Pord, 13 Sim. 173; Eq. 541 ; supra, p. 201. Croft V. Haw, 5 L. J. Ch. N. S. 305. (c) Barrett v. Blagrave, 6 Ves. 105 ; [516] OH. XXII.J OP COVENANT OE AGREEMENT. * 497 with the covenant, or who has acquiesced in the doing of acts which are inconsistent with it, cannot come to a court of equity to have the covenant or contract enforced. Thus, where the leases of an estate contained covenants by the lessees which were intended to be for the general benefit of them all, e.g., a covenant to build on a uniform plan, and the landlord let loose some of his tenants from the obligations of the covenants, the court would not interfere to prevent a similar infringement by others of the tenants (/). Nor would the court restrain the erection of buildings contrary to a covenant, where the plaintiff had himself erected buildings, the effect of which was to de- stroy those very advantages which the covenant was intended to maintain (^). Nor will relief be given where there has been for a considerable time a violation of the agreement in respect of * which relief is sought both by defend- * 497 ant and plaintiff (A). But the case is different if the covenant, though entered into by a landlord with all his tenants, is only a covenant for the benefit of each tenant, and not one for the benefit of all the other tenants (i"), or if it is left to the landlord himself to determine what tenants shall be let loose from the obligations of the covenant (Ji). Nor is the equity of a cestui que trust to require the due performance of a covenant displaced by a breach of duty on the part of the trus- tees (V). Nor will the principle as to acquiescence be carried so far as to hold a man who has permitted one infringement of a covenant bound to permit another (jn). Nor will passive acquiescence in a breach of covenant attended with no damage, Scarisbrick o. Tunbridge, 3 Eq. Rep. (g) Duke of Bedford v. Trustees of 240 ; Child v. Douglas, 5 D. M. & G. British Museum, 2 M. & K. 552 ; Jack- 739 ; Johnstone v. Hall, 2 K. & J. 414 ; son v. Fenwick, 21 L. T. 223. Comp. Eastwood V. Lever, 38 L. J. Ch. 355; Kemp v. Sober, 1 Sim. N. S. 517; supra, pp. 201-203. See Hudson w. Johnstone t>. Hall, 2 K. & J. 414 ; West- Bartram, 3 Madd. 40. Comp. Mitchell em v. M'Dermott, 2 L. E. Ch. Ap. j;. Steward, 1 L. R. Eq. 541. 72. See Shrewsbury and Birmingham (/) Roper V. Williams, T. & E. 18 ; Railway Co. v. Stour Valley Railway Child V. Douglas, 5 D. M. & G. 739; Co., 2 D. M. & G. 866, 882. "Whitehead v. Bennett, 9 W. R. 627. (h) Sheard v. Webb, 2 W. R. 343. See Schreiber v. Creed, 10 Sim. 9 ; \i) Patching v. Dubbins, Kay, 1. Whatman «. Gibson, 9 Sim. 196 ; (k) Scarisbrick v. Tunbridge, 3 Eq. Scarisbrick v. Tunbridge, 3 Eq. Rep. Rep. 243. See Kemp v. Sober, 1 Sim. 240. Comp. Eastwood v. Lever, 83 N. S. 517. L. J. Ch. 357 ; Mitchell v. Steward, 1 (/) Eastwood v. Lever, 33 L. J. Ch. L. R. Eq. 541 ; Western v. M'Dermott, 355. 2L. R. Ch. Ap. 72; Peek v. Matthews, (m) Lloyd v. London, Chatham, and 3 L. R. Eq. 409. Dover RaUway Co., 2 D. J. & S. 568. [517] *498 INJONCTIONS AGAINST BEEACH [CH. XXII. or at least with trifling damage, preclude a man from complain- ing of a breach whereby his enjoyment is directly and substan- tially affected (w). 6. The jurisdiction being discretionary, the court is bound to exercise it with a view to the way in which the granting relief will affect the rights of other persons (o). 7. The construction of a covenant or a contract is a pure ques- tion of law. There is no equitable construction of a covenant or contract as distinct from its legal construction. To construe is nothing more than to arrive at the meaning of the parties to the instrument (p). 8. The intention of the parties is to be collected from the language of the instrument, explained by reference to the cir- cumstances under which it was made {q), the nature of the transaction (r), and the matters to which it relates (s). * 498 The * words of the instrument are to be interpreted in their ordinary grammatical sense and meaning, unless from the context of the instrument and the intention of the parties to be collected from it they appear to have been used in a different sense, or unless in their strict sense they are in- capable of being carried into effect ; subject, however, to this, that the meaning of a particular word may be shown by parol evidence to be different in some particular trade, place, or business from its proper and ordinary signification (<). It is not necessary, in order to render such evidence admissible, that there should be any ambiguity on the face of the instru- ment which has to be construed (m). If it appear that a term or phrase bears a peculiar meaning in the trade or business to which the contract relates, that meaning is primd facie to be (n) Western v. M'Dermott, 2 L. R. (q) Turner v. Evans, 2 E. & B. 512 ; Ch. Ap. 72. See further, as to acquies- Edinburgh, Perth, and Dundee Kail- cence, supra, pp. 201-205. way Co. v. Philipp, 2 Macq. 514, 526. (o) Hope V. Corporation of Glouces- ()-) Macintyre v. Belcher, 14 C. B. ter, 1 Jur. N. S. 320. See Maythorne N. S. 663, per Erie, C. J. V. Palmer, 11 Jur. N. S. 230. (s) Rex v. Mashiter, 6 A. &E. 153. (p) Iggulden V. May, 9 Ves. 333; (t) Mallan v. May, 13 M. & W. 511 ; Butcher v. Butcher, ib. 393 ; Shrews- Mercer v. Irving, El. Bl. & El. 563 ; bury and Birmingham Railway Co. v. Great Northern Railway Co. v. Harri- London and North Western Railway son, 12 C. B. 576, 609 ; Edinburgh, Co., 3 Mac. &G. 70; Johnson u. Shrews- Perth, and Dundee Railway Co. v. bury and Birmingham Railway Co., 3 Philipp, 2 Macq. 514, 526. D. M. & G. 931, 3 D. & J. 860, per Lord (u) Myers v. Sari, 3 El. & El. 306. Chelmsford. [618] CH. XXII.J OP COVENANT OR AGEEEMENT. * 499 attributed to it, unless, upon the construction of the contract, enough appears either from express words or by necessary im- plication to show that the parties did not mean that meaning to prevail (x). Parol evidence is admissible for the purpose of identifying or ascertaining the subject-matter of a contract where the description of it in the instrument is so vague and indefinite as to be incapable of ascertainment without the aid of extrinsic evidence. But where this is not the case, and the writing is, on the face of it, capable of intelligible construction, that Construction it should receive («/). 9. In construing a contract or a covenant the whole of the instrument is to be taken together, so as, if possible, to give effect to every part (z), and so that one of the provisions shall not be repugnant to another, if it can possibly bs done (a). The recitals may be made use of to explain the operative part (6). * Where the words in the operative part are * 499 clear and unambiguous, they cannot be controlled by the recitals or other parts of the instrument. But if those words are of doubtful meaning, the recitals and other parts of the instrument may be used as a test to discover the intention of the parties and to fix the meaning of those words (c). 10. Words in a contract which are wholly inconsistent with its nature (d'), or with the main intention (e), are to be re- jected. 11. Particular clauses of a contract are subordinate to its general provisions (/). . 12. However broad may be the terms of a contract, it es- (x) Myers v. Sari, 3 El. & El. 306. (c) Bath & Montagu's case, 8 Ch. See James v. Plant, 4 A. & E. 749 ; Ca. 106 ; Cholmondeley v. Clinton, 2 , Worthington v. Gimson, 2 El. & El. 618 ; J. & W. 1, 99 ; Bailey v. Lloyd, 5 Russ. Taylor v. Caldwell, 3 B. & S. 832. 330 ; Doe d. Timmis v. Steele, 4 Q. B. [y] Ricketts v. Turquand, 1 H. L. 663 ; Sorsbie v. Park, 12 M. & W. 146 ; 490 ; Evans v. Angell, 26 Beav. 202 ; Rooke v. Lord Kensington, 2 K. & J. Boyle V. MuUhoUand, 10 Ir. C. L. 150. 753 ; Walsh v. Trevanion, 15 Q. B. iz) Sicklemore v. Thissleton, 6 M. & 733 ; Jenner v. Jenner, 35 L. J. Ch. S. 9 ; Rigby v. Great Western Railway 329 ; Young v. Smith, 1 L. R. Eq. 180. Co., 14 M. & W. 811. (d) Mills v. Wright, 1 Freem. 247 ; [a) Browning v. Wright, 2 Bos. & P. Simpson v. Vaughan, 2 Atk. 32. 13 ; Briggs v. Earl of Oxford, 5 De G. (c) Dallman v. King, 4 Bing. N. C. & S. 156. 105. See Rex v. Inhabitants of Ex- (h) Bath & Montagu's case, 3 Ch. minster, 6 A. & E. 598. Ca. 106 ; Taggart v. Hewlett, 1 Mer. (/) London Gas-light Co. v. Vestry 502 ; Payler v. Homersham, 4 M. & S. of Chelsea, 8 C. B. N. S. 215. See 423 ; Lampon v. Corke, 5 B. & Aid. Ringer v. Cann, 3 M. & W. 343. 606. [519] * 500 INJUNCTIONS AGAINST BREACH [OH. XXII. tends only to those things concerning which it appears that tlie parties intended to contract (^). 13. If the terms of a contract are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed at the time of making it that the promisee understood it (A). 14. A contract must receive such a construction as will make it lawful (t), operative (A;), reasonable (Z), and capable of being carried into effect, if it can be done without violating the intention of the parties. But the language of a contract can- not be perverted in order to make it lawful (m) ; nor * 500 can an unreasonable * stipulation be rejected if it was clearly the intention of the parties that it should form part of the contract (w). 15. Conditions not expressed will not be imported into an agreement unless there is something in the agreement which shows that the parties must have intended such conditions. There must be words in the instrument capable of sustaining the meaning which is sought to be implied from them (o). If the court is able to collect from the language of the whole instrument taken together an agreement between the parties that a certain thing shall be done, there is sufficient to enable the court to say that a covenant is created Qp). It is not enough that the language may show that the parties contem- plated that a particular thing might or might not be done. It must amount to a binding agreement between them that the (g) Lyall v. Edwards, 6 H. & N. 337 ; (n) Stadhard v. Lee, 3 B. & S. 364. Simons w. Johnson, 3 B. & A. 175 ; (o) Churchward v. Reg., 1 L. R. Q. Payler v. Homersham, 4 M. & S. 423. B. 195, 211 ; Midland Railway Co. v. (h) See Mowatt v. Londesborough, London and North Western Railway 3 E. & B. 307, per Lord Campbell, C. Co., 2 L. R. Eq. 525. J. ; Wheelton v. Hardisty, 8 {6. 284. (p) Rigby v. Great Western Rail- (i) Sterry v. Clifton, 9 C. B. 110 ; way Co., 14 M. & W. 811 ; Aspdin v. Harrington v. Kloprogge, 4 Doug. 5. Austin, 5 Q. B. 671, 683 ; James v. See Shore v. Wilson, 9 CI. & Ein. 397. Cochrane, 7 Exch. 170, 177 ; Rashleigh (k) Boyd V. Moyle, 2 C. B. 644 ; v. South Eastern Railway Co., 10 C. Kussell a. Philipps, 14 Q. B. 891 ; Broom B. 613; Great Northern Railway Co. V. Batchelor, 1 H. & N. 255 ; Mare v. v. Harrison, 12 C. B. 576, 609 ; Iven v. Charles, 5 E. & B. 978. Elwes, 3 Drew. 25 ; Smith v. Mayor (I) Braunstein v. Accidental Death of Harwich, 2 C. B. N. S. 651, 667; Insurance Co., 1 B. & S. 782 ; Jones v. M'Intyre v. Belcher, 14 C. B. N. S. Gibbons, 8 Exch. 922 ; Dallman v. 654 ; Lay v. Mottram, 19 C. B. N. S. King, 4 Bing. N. C. 105. 479 ; Brooks v. Jennings, 1 L. R. C. P. (m) See Mayor of Norwich v. Nor- 476. folk Railway Co., 4 E. & B. 397. [520] CH. 2XII.] OF COVENANT OR AGREEMENT. * 501 thing shall be done (q). It is not competent for the court to import a covenant which does not arise by necessary implica- tion from the language of the instrument (r). When a man covenants to do a certain thing, it is necessarily implied that he will not wilfully incapacitate himself from doing it (s). If a man enters into an arrangement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative (t). But a man who has expressly covenanted to perform certain acts cannot be * held to have im- * 501 pliedly covenanted for every act convenient or even nec- essary for the perfect performance of his express covenant (m) . 16. Stipulations which are necessary to make a contract reasonable (x}, or conformable to usage (y), are implied in respect of matters concerning which the contract manifests no contrary intention («). 17. A plan, if referred to by an instrument, must be read along with it and be looked to for the purpose of explaining it (a). But the mere exhibition of a plan does not amount to a representation or warranty that all the ground exhibited in the plan shall be put or shall continue in the same state in which it was exhibited upon the plan (6). The case, however, is different, if the plan has been made distinctly and expressly a part of the agreement"(c). (?) Aspdin V. Austin, 5 Q. B. 671, Pollock v. Stables, 12 Q. B. 765 ; 683 ; Rashleigh v. South Eastern Eail- Bayliffe v. Butterworth, 1 Exch. 425 ; way Co., 10 C. B. 612; James v. Syers v. Jonas, 2 Exch. Ill; Dale w. Cochrane, 7 Exch. 170, 177; Smith Humfrey, El. Bl. & El. 1004. V. Mayor of Harwich, 2 C. B. N. S. (z) Button w. Warren, 1 M. & W. 475. 651, 667. See Suse v. Pompe, 8 C. B. N. S. 538. (r) lb. ; Iven v. Elwes, 3 Drew. 25. (a) Clarice v. Manchester, ShefiBeld, (s) M'Intyre v. Belcher, 14 C. B. N. and Lincolnshire Railway Co., 1 J. S. 654. See Hooper v. Brodrick, 11 H. 631 ; Nicholson v. Rose, 4 D. & J. Sim. 47; Piggott k. Stratton, 1 D. F. 10. SeeTulkt).Moxhay,18L. J. Ch.85. & J. 33 ; iTen v. Elwes, 3 Drew. 25. (6) Peoffees of Heriot's Hospital v. (t) Stirling v. Maitland, 5 B. & S. Gibson, 2 Dow. 301; Squire v. Camp- 840. bell, 1 M. & C. 459, 486 ; Pewster v. (u) Aspdin v. Austin, 5 Q. B. 671, Turner, 11 L. J. Ch. 161 ; Tulkw.Mox- 683 ; Rashleigh v. South Eastern Rail- hay, 18 L. J. Ch. 85. See Eastwood v. way Co., 10 C. B. 612 ; Smith v. Mayor Lever, 38 L. J. Ch. 355. of Harwich, 2 C. B. N. S. 651, 667. (c) Rankin v. Huskisson, 4 Sim. 15 ; tx) Jones V. Gibbons, 8 Exch. 922. Slee v. Corporation of Bradford, 4 Giff. («) Field V. Lelean, 6 H. & N. 617 ; 262. [521] * 502 INJUNCTIONS AGAINST BREACH [CH. XXII. 18. The original covenantor is not a proper party to a suit to restrain an assignee of tlie lease from violating a covenant in the lease, if he has parted with all interest in the property and is not in any way in fault (cZ). Nor can a man who has parted with all his interest under an agreement sue for the violation of it without making the assignee a party (e). Although several persons may be entitled to complain of a breach of covenant, one alone of such persons may maintain the suit : the others need not be parties to or be repre- * 502 sented in a suit to maintain * it (/). Trustees who have sold land for building plots, subject to resti'ictive covenants, are necessary parties to a suit to enforce the cov- enants. The remaining purchasers should also be represented in the record (^). Tenants in common assignees of the rever- sion of a lease may join in suing or be jointly sued in covenants therein Qi). 19. The assignee of a lessee was at common law liable in covenant and entitled to bring covenant, but the assignee of a lessor was not. The 32 Hen. 8, c. 34, has however placed the assignee of a reversioner on the same footing in this respect as the assignee of a lessee, and gives to reversioners the benefit of covenants entered into with their predecessors in title. The successive reversioners, as they become entitled to the estate, have a right to insist upon the performance of the covenants irrespectively of the damage which may accrue from the breach (i). But reversioners entitled in remainder are pre- cluded from suing, unless they can prove special damage to themselves in respect of the interest in the reversion (¥). Courts of equity in interfering at the suit of reversioners in remainder to restrain breaches of covenant, follow the analogy of the rule at law, and will not grant injunctions unless mate- rial damage has been shown (Z). Thus in the case where the (d) Scarisbrick v. Tunbridge, 3 Eq. (k) Womersley v. Daley, 26 L. J. . Eep. 243; Clements v. Welles, 1 L. E. Exch. 219. Eq. 200. See supra, 207, as to par- (i) Isherwood v. Oldknow, 3 M. & S. ties. 382. (e) Thome u. Taw Vale Railway and {h) Jackson v. Pesked, 1 M. & S. Dock Co., 13 Beav. 10. 234 ; Baxter v. Taylor, 4 B. & Ad. 72 ; (/) "Western v. M'Dermott, 2 L. E. Mumford v. Oxford, &c., Eailway Co., Ch. Ap. 72. 1 H. & N. 34; Simpson v. Savage, 1 C. (g) Eastwood v. Lever, 33 L. J. Ch. B. N. S. 349. 355. (I) Johnstone v. Hall, 2 K. & J. 423. [522] CH. XXII.] OP COVENANT OR AGREEMENT. * 503 reversioner of a leasehold house held under a lease for 999 years (the tenant for life not being a plaintiff) sought to restrain the lessee from keeping a school contrary to a cove- nant in the lease, which stipulated that no trade or business wliatever should be carried on in the house, but that it should be used simply as a dwelling-house, Wood, V. C, refused to grant an injunction on the ground that the damage was too minute for the court to interfere at the suit of a reversioner. The case would have been different had the lessee been carry- ing on a noxious or offensive trade (m). 20. * Covenants are either of an afiSrmative or nega- * 503 five nature. Where a man covenants that something has been done or shall be done hereafter, the covenant is affirm- ative. Where a man covenants that a thing has not been done or shall not be done hereafter, the covenant is a negative one. In cases where the covenant is affirmative, the remedy in equity is by way of specific performance. If it is a negative one, the remedy is by way of injunction. 21. In restraining by injunction the breach of a negative covenant, the interference of the court is in effect an order for specific performance. " An agreement," said Lord St. Leon- ards in Lumley v. Wagner (w), "may be as effectually per- formed in this way as by an order for the performance of the thing to be done." Persons accordingly who had entered into a covenant not to ring church bells at stated periods and had accepted the benefits of the covenant were restrained from violating its obligations (o). So also an author who, on the sale of a work had covenanted with the purchaser not to do any thing which might be detrimental to the sale or publication of that work, was restrained from publishing a rival work on the same subject Qp). So also an agreement between a publisher and an author that the latter should write a tale for the former and should not during the continuance of the agreement write for any other publication, was enforced by injunction. The injunction went to restrain another publisher from employing (m) Johnstone v. HaU, 2K. & J. 423. > St. 1, 2 L. J. Ch. 90 ; Ingram v. Stiff, in) 1 D. M. & G. 615. 5 Jur. N. S. 947 ; Ainsworth v. Bentley, (o) Martin v. Nutkin, 2 P. W. 266. 14 W. K. 630. See Fullarton v. W- (p) Barfield v. Nicholson, 2 Sim. & Phun, 18 Dec. of Ct. of Sess., N.S. 219. [523] * 505 INJUNCTIONS AGAINST BREACH [CH. XXII. him (g). So also tenants were restrained from having more' than two grain crops in any five years of the term (r), and from breaking up pasture-land (s), contrary to covenants in their lease (Jf). So also a man who had covenanted not to perform or write for any other than a particular theatre was restrained according to the terms of the *504 * covenant (tt). So also a public board of functionaries was restrained from erecting buildings on a plot of land, opposite a club-house, contrary to covenant (x). So also the lessee of a mine who had covenanted not to remove machinery from a mine was restrained according to the terms of the cove- nant («/). So also a railway company which had bought land from a man, and had covenanted with him in the purchase deed not to erect any building upon it to a greater height than eighteen feet within the distance of eighty feet from certain other property of his, was restrained according to the terms of the covenant (z). So also a railway company was restrained from removing from the railway carriages placards and adver- tisements of the plaintiff, and from removing from the stations the book-stalls of the plaintiff, contrary to covenant' (a). So also a man who had purchased land under a condition pro- hibiting building thereon except after permission obtained, was restrained from building before obtaining the permission re- quired (6). So also the lessee of a house who had covenanted not to carry on any business or trade on the demised premises, was restrained from setting up a school (c), from carrying on the trade or business of a baker, confectioner, beershop- *505 keeper (c?), hairdresser (e), or auctioneer (/). *So (q) Stiff V. Cassell, 2 Jur. N. S. 348. (a) Holmes v. Eastern Counties Rail- (r) Fleming v. Snook, 5 Beay. 252. way Co., 3 K. & J. 67,5. (s) Grey de Wilton v. Saxon, 6 Ves. (h) Att.-Gen. v. Briggs, 1 Jur. N. S. 106 ; Pulteney v. Shelton, 5 Ves. 260, n. 1084. (t) See, as to covenants in a farm- (c) Kemp v. Sober, 1 Sim. N. S. 520, ing lease, Gale v. Bates, 3 H. & C. on appeal, 19 L. T. 308 ; Johnstone i'. 84. Hall, 2 K. & J. 423 ; Wickenden v. Web- («) Morris v. Colman, 18 Ves. 437. ster, 6 E. & B. 387. (x) Rankin v. Huskisson, 4 Sim. 13. (d) Hodson v. Coppard, 29 Bear. 4. (y) Hamilton v. Dunsford, 6 Ir. Ch. (e) Clements v. Welles, 1 L. R. Eq. 412. ' 200. (z) Lloyd V. London, Chatham, and (/) Parker v. Whyte, 1 H. & M. Dover Railway Co., 2D. J, & S. 568. 167. See Moses v. Taylor, 11 W. R. See Foster v. Birmingham, Wolver- 81. A covenant not to use a house as hampton, and Dudley Railway Co., 2 a shop may be broken by user of it for W. R. 378. the sale of goods without any structu- ral or architectural alteration of the [524] CH. XXII.] OP COVENANT OE AGREEMENT. *506 also whei-e the lease of a shop contained a covenant that it should be occupied for the business of a shop and no other, the court restrained the lessee from carrying on the business of an auctioneer (^). So also the under-lessee of a man who had covenanted not to carry on a particular trade on the demised premises will be restrained from carrying it on, although such covenant was not contained in the original lease, but only in an assignment thereof Qi). So also a man who had covenanted not to let any house as an hotel or to let any land for the erection of any house to be used as an hotel or inn within . certain limits, was restrained from selling any land for such a purpose or from doing any act that might aid in the violation of the covenant («). So also the court -v^ill enforce by in- junction a covenant in a lease not to assign without license (Jc). So also a man who had * covenanted in a *506 separation deed not to molest his wife, was restrained according to the terms of his covenant (J). So also a man who house. Wilkinson v. Eogers, 2 D. J. & S. 62. A covenant not to carry on the trade of a butcher is broken by selling raw meat, though it was not ex- posed in the shop windows, but was visible to passengers if they looked in, and was not killed there. Doe v. Spry, 1 B. & Aid. 617. A covenant not to carry on the business of a common brewer or retailer of beer is broken by the carrying on the business of a retail brewer. Simons v. Farren, 1 Bing. N. C. 128. But a covenant not to use a " public house for sale of beer, wine, malt liquor, or spirits," is not broken by taking out an ordinary excise license for the sale of beer not .to be drunk on the premises. Pease v. Coats, 2 L. R. Eq. 688. See Marks v. Benjamin, 5 M. & W. 565. A covenant not to carry on the business of a horse-hair manufac- turer is not broken by merely dealing in horse-hair. Harms v. Parsons, 32 Beav. 328. The trade of a coachmaker does not fall within the provisions of a covenant against carrying on an offen- sive trade. Bonnett v. Sadler, 14 Ves. 626. See Moses ». Taylor, 11 W. E. 81, as to whether the setting up a mock auction is an offensive trade within the meaning of the covenant. Nor is the opening a house as a public house a breach of covenant not to carry on a trade or business that might be offen- sive, or an annoyance, or disturbance, to any of the tenants of the lessor or any part of the neighborhood. Jones V. Thorne, 1 B. & C. 716. See Gorton V. Smart, 1 Sim. & St. 66; Hickman V. Isaacs, 4 L. T. N. S. 285. The keep- ing a lunatic asylum is not carrying on an offensive trade . Doe d. Wetherell v. Bird, 2 A. cSb E. 161. See Moses v. Taylor, 11 W. R. 81. See also, as to offensive trades, Barrow v. Richard, 8 Paige, Ch. (Amer.) 357; Seymour v. M'Donald, 4 Sandf. Ch. (Amer.) 503. See, as to breach of condition against sub-letting, Browne v. Lord Sligo, 10 It. Ch. 1. See, as to what amounts to a breach of covenant in a building lease, Schreiber v. Creed, 10 Sim. 9 ; Patching V. Dubbins, Kay, 1 ; Child v. Douglas, ib. 560. A covenant is broken by per- mitting acts of a third party in contra- vention of it. It is not necessary to show any act of commission on the part of the defendant. Borgins v. Edwards, 2 F. & F. 111. (g) Steward v. Winter, 4 Sandf. Ch. (Amer.) 587. (h) Clements v. Welles, 1 L. R. Eq. 200. (i) Jay V. Richardson, 30 Beav. 563. See Clarkson v. Edge, 33 Beav. 227. (k) Dyke v. Taylor, 3 D. F. & J. 467. (I) Sanders v. Rodway, 16 Beav. 211. [525] * 507 INJUNCTIONS AGAINST BREACH [CH. XXII. had covenanted in a separation deed not to take any legal pro- ceedings against his wife with the view of forcing her to cohabit with him, was restrained from commencing a suit for restitu- tion of conjugal rights against her (m). So also a married woman who has by a formal act of acceptance acquiesced in a separation deed, containing a covenant that she should not en- deavor to compel her husband to allow her " any further or greater support, maintenance, or alimony" than a certain annuity, will be restrained from taking proceedings in the divorce court to obtain an allowance for alimony, as incident to her petition for a judicial separation on the ground of adultery (w). So also the court restrained the publication of facts, agreed not to be published if a certain sum of money were paid, although the plaintiff was not prepared to pay the whole sum (o). So also an injunction was granted to restrain the publication of the recovery of a judgment debt against a man contrary to agreement, where the threat to sell the judg- ment debt by auction was not bond fide but for the purpose of getting better terms (p). 22. If the covenant is vague or uncertain in its terms, or of such a nature that the court cannot, consistently with its rules and principles, enforce it, an injunction will not be granted (g'). Thus the court would not enforce by injunction a covenant not to build; except so as to be an ornament rather than otherwise to the adjoining property (r). 23. A class of negative covenants which the court will en- force by injunction are covenants in partial restraint of trade, where the limitation is reasonable. Covenants in total restraint of trade are absolutely void upon grounds of public * 507 policy (s). " The * law," said Lord Wynford, in Homer V. Ashford (t), " will not permit any one to restrain a. man from doing what his own interest and the public welfare require that he should do. Any deed therefore by which a man (m) Hunt V. Hunt, 8 Jur. N. S. 86 ; M Mann v. Stephens, 15 Sim. 379. but see Wilson v. Wilson, 5 H. L. 40. (s) Mitchell v. Reynolds, 1 P. Wms. (n) See Williams v. Baily, 2 L. R. 181 ; Chesman v. Nainby, 2 Stra. 739, Bet. 731. S. C, 2 Lord Raym. 1456 ; Wickens v. lo) Anon., 3 Jur. N. S. 685. Evans, 3 T. & J. 318; Mallau v. May, (p) Jamieson v. Teague, 3 Jur. N. S. 11 M. & W. 653. 1206. (t) 3 Bing. 328. (q) Supra, p. 495. [526] CH. XXII.] OP COVENANT OR AGREEMENT. * 508 binds himself not to employ his talents, his industry, or his capital, in any useful undertaking in the kingdom, would be void." If the restraint is general, the shortness of time for which it may be imposed will not render it good. Thus, where a coal-merchant's clerk or traveller bound himself not to follow or be employed in the business of a coal-merchant for the space of nine months after he should have left the service of his employers, the bond was held void (m). In a previous case, Whittaker v. Howe (cc). Lord Langdale enforced by injunction a covenant on the part of an attorney not to practise within Great Britain for twenty years. The case cannot, however, be considered sound law. It is quite inconsistent with Ward v. Byrne, which was decided after mature deliberation (t/).^ Ac- cording to Bryson v. Whitehead (z), a trader may sell a secret and restrain himself generally from using it ; but, as Lord Wensleydale pointed out in Ward v. Byrne (a), a limit of space was introduced by consent of the parties. In Avery v. Langford (J), a covenant not to set up a trading establishment within a district of considerable extent was enforced, as the court did not consider it too general in its terms. " I think," said Wood, V. C. (c), "that a court of law would not hold such a bond to be invalid because the terms of the condition were too large, but would construe that condition with respect to the nature of the trading establishment which was the subject of the sale, and would take it to mean that the defendant was not to set up within this district any trading establishment which would interfere with that of the plaintiff." 24. Covenants in restraint of trade, though only partial, if nothing shows them to be reasonable, are presumed to be void upon * grounds of public policy (cZ) ; but cov- * 508 enants in partial restraint of trade, where there is a fair and reasonable ground for the restriction, are good and valid. (m) Ward v. Byrne, 5 M. & "W. 548 ; (d) Mitchell v. Eeynolds, 1 P. Wms. Hinde v. Gray, 1 M. & G. 195. 181 ; Mallan v. May, 11 M. & W. 665. (x) 3 Beav. 383. i In McClurg's Appeal, 58 Penn. St., ly) See NiclioUs v. Stretton, 10 Q. B. an agreement for a valuable considera- 346 ; Mumford v. Gething, 7 C. B. N. S. tion not to practise medicine within 805. twelve mUes, of a particular locality, (z) 1 Sim. & St. 77. was held not unreasonable, and breach (a) 5M. (SbW. 548. of it restrained by injunction. Butler u. ib) Kay, 663. Burleson, 16 Vt. 176 ; Beard v. Dennis, (c) Ib. 6 Ind. 200. [527] * 509 INJUNCTIONS AGAINST BREACH [CH. XXII. They are upheld, not because they are advantageous to the individual with whom the contract is made, and a sacrifice pro tanto of the rights of the community, but because it is for the benefit of the public at large that they should be enforced. Such restraints upon trade, so far from being injurious to trade, are in many cases necessary for the protection of those who are engaged in it. Instead of cramping, they encourage the employment of capital, and the promotion of industry (e). Such is the case of the disposal or sale of the good-will of a trade or business, carried on in a particular locality, where the vendor covenants and agrees not to carry on the same business in the same place (/) ; or the taking an apprentice, clerk, traveller, or servant upon the terms that he shall not, during or after tlie termination of his engagement, solicit custom from his master's customers (gi), or set up the same trade, business, or profession in opposition to his employer, in his immediate neighborhood, or in the district over which the master's busi- ness extends (A) ; or the dissolution of a partnership on the retirement of one of the partners of a firm upon the terms and subject to an agreement that he will not at any time set xip business in opposition to the remaining partners, or any new partners, or their assignees, in the district where the business is carried on (i). * 509 25. * A man who has covenanted not to carry on business in his own name, or for his own benefit, or in the name of or for the benefit of any other person within a certain district, is not prevented from soliciting orders within the district for a third person who is carrying on business (e) Homer v. Ashford, 8 Bing. 326 ; Ferguson, 7 C. B. 716, 1 Mac. & G. MallantJ. May, llM.&W.eeS; TaUis 286; Dendy v. Henderson, 11 Exch. V. Tallis, 1 E. & B. 391; Mumford v. 194; Benwell v. Inns, 24 Beav. 310; Gething, 7 C. B. N. S. 805. Edmonds v. Plews, 6 Jur. N. S. 1091. (/) Mitchell a. Reynolds, 1 P. Wms. Comp. King v. Hansell, 5 H. & N. 181 ; Archer v. Marsh, 6 A. & E. 959 ; 106. Wallis V. Day, 2 M. & W. 278 ; Jones (i) Gale v. Reed, 8 East, 80 ; Leigh- V. Lees, 1 H. & N. 189. ton v. "Wales, 3 M. & W. 545 ; Price v. (g) Rannie v. Irvine, 7 M. & G. 969 ; Green, 16 M. & W. 346 ; Tallis v. Tallis, Homer v. Ashford, 3 Bing. 328 ; NichoUs 1 B. & B. 391 ; Burrows v. Foster, cited V. Stretton, 7 Beav. 42, 10 Q. B. 846; Clark v. Leach, 32 Beav. 18; Clarkson Mumford v. Gething, 7 C. B. N. S. v. Edge, 83 L. J. Ch. 443. See also, 305. as to covenants not being too general, (Ji) Chesham v. Nainby, 2 Lord Gale v. Reed, 8 East, 80 ; Wickens «. Raym. 1456 ; NichoUs v. Stretton, 7 Evans, 8 Y. & J. 318 ; Jones v. Lees, 1 Beav. 42, 10 Q. B. 346; Mallan v. H. & N. 189. May, 11 M. & W. 668; Sainter v. [528] OH. XXII.] OP COVENANT OB AGREEMENT. * 510 beyond the district (A;), but he may not solicit orders for his own benefit within the prescribed limits, though he has no residence, shop, or place of business within them (J}, or send goods to places within them from a place beyond them, where he is carrying on business (wi). A covenant not to be engaged in a specified trade or " in any way, matter, or thing whatsoever, in anywise relating thereto," within a given district, does not prevent the covenantor from lending money to a per- son engaged in such trade within the district, upon mortgage of his trade premises, although he may know that the mort- gagor has no means of paying the debt, except out of the profits of the business, but he may not retain any direct hold on the profits of the business (n). There is nothing in such a cove- nant, it would appear, to prevent the covenantor from buying any number of houses within the district, fitting them up, or selling them for the purposes of the trade in question, provided he has no direct interest in the business carried on in them after such sales. A mortgage expressly charging the debt upon the profits of a business would be probably a breach of the covenant (o). 26. A restraint on trade is not good unless it is reasonable. Whether it is so or not, is a question to determine (p). In respect of time the restriction may be unlimited (§'). The death or discontinuance from business of the covenantee does not release the covenantor from the obligations of the covenant (r). * According to Ben well v. Inns (s), the * 510 benefit of the covenant passes to an assign of the cove- nantee. But in respect of space, the restraint must be con fined within reasonable limits. If the area of exclusion i&. larger and wider than the protection of the party with whom, the contract is made can possibly require, it is unreasonable, (k) Clarke v. Watkins, 9 Jur. N. S. 438 ; Pemberton v. Vaughan, 10 Q. B. 142. 87 ; Elves v. Crofts, 10 C. B. 241 ; Taffis (l) Turner v. Evans, 2 E. & B. 512, 2 v. Tallis, 1 E. & B. 391. D. M. & G. 740. (r) Hitchcock v. Coker, 6 A. & E. Im) Brampton v. Beddoes, 13 C. B. 438 ; Sainter v. Ferguson, 7 C. B. 718 N S 538. Elves v. Crofts, 10 C. B. 241; Mum (n) Bird v. Lake, 1 H. & M. 338. ford v. Gething, 7 C. B. N. S. 305 : (o) 2b. Hastings v. Whittey, 2 Exch. 615, per (p) Mallan v. May, 11 M. & W. 653 ; Lord Wensleydale ; Atkyns v. Kinneir, Tallis V. TalUs, 1 E. & B. 391. 4 Exch. 776. (?) Hitchcock V. Coker, 6 A. & E. (s) 24 Beav. 307. 34 [529J *511 INJ0NCTIONS AGAINST BREACH [CH. XXII. and the contract, which would enforce it, is Toid (i). Tlie rule upon the subject has been thus laid down by Tindfil, C. J., in Horner v. Graves (u) : " We do not see how a better test can be applied to the questions, whether reasonable or not, than by considering whether the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public." The fact that the area of exclusion may be apparently larger than the area of the business of the party insisting on the contract, is not a reason for avoiding it (a;). Unless the restraint is such as to be plainly and obviously unnecessary, the restraint is good («/). In Mallan V. May (g). Lord Wensleydale, in delivering the judgment of the court, doubted whether the comparative populousuess of particular districts ought to be taken into consideration, and said : " We think it would be better to lay down such a limit as, under any circumstances, would be sufficient protection to the interests of the contracting party, and ifthe limit stipulated for does not exceed that, to pronounce the contract to be valid." And in Tallis v. Tallis (a), where the business was that of canvassing publishers, and the area of exclusion was very large, the court held, that unless the defendant could make it obviously and plainly clear, that the plaintiff's interest did not require the defendant's exclusion, or that the public interest would be sacrificed if the defendant's intended * 611 * publications were excluded, the contract would not be held void. 27. The reasonableness or unreasonableness of the restric- ition in respect of space depends in a great measure on the nature of the business and the mode in which it is usually carried on (6). No certain and precise boundary can be laid down within which the restraint would be reasonable, and beyond which it would be excessive. Some trades and pro- fessions require a limit of a much larger range than others. (t) Hitchcock V. Coker, 6 A. & E. 438; ^ («) Horner v. Graves, 7 Bing. 743. Avery v. Langford, Kay, 663 ; Dendy h) 11 M. & W. 667. V. Henderson, 11 Exch. 194. (a) 1 E. & B. 391. 7 Bing. 743. (6) Horner v. Graves, 7 Bing. 748 ; (x) TaUis V. Tallis, 1 E. & B. 391. Hitclicock v. Coker, 6 A. & B. 439; See Dendy v. Harrison, 11 Exch. 194. Avery v. Langford, Kay, 663. [630] CH. XXII.] OP COVENANT OR AGREEMENT. * 512 An area of exclusion which would be unreasonable in one trade or profession is in another necessary for the protection of the business. Businesses, such as those of attorneys, bankers, publishers, &c., &c., which can be carried on by agents and correspondence, fill up and occupy a much wider district than those which depend for their success and proper management upon personal superintendence (c). 28. In Davis v. Mason (tZ), the borough of Thetford and ten miles round ; in Hay ward v. Young (e) , twenty miles round a place ; in Sainter v. Ferguson (/), a district comprising the populous town of Macclesfield and seven miles round ; and in Atkyns ?). Kinneir(^), a district comprising a radius of two and a half miles from a certain house in London, were held reasonable limits in the case of a surgeon (A). 29. In Hitchcock v. Coker (t), Taunton and three miles round was held a reasonable limit in the case of a druggist. In Mallan v. May (^), London was held to be a reasonable limit (Z) ; but in Horner v. Graves (m), York and one hun- dred miles round was held to be an unreasonable limit in the case of a dentist. 30. In the case of an attorney, London and one hundred and fifty miles round was * held a reasonable limit (w). *512 In Whittaker v. Howe (o). Lord Langdale enforced by injunction a covenant on the part of an attorney not to prac- tise in Great Britain for the space of twenty years (p). 31. In the case of a perfumer, toyman, and hair-merchant, London and Westminster was held a reasonable, but London and Westminster and six hundred miles round was held an unreasonable limit (q). In the case of a horse-hair manufact- urer, Birmingham and two hundred miles round was held a (c) Horner v. Graves, 7 Bing. 743 ; {I) See, as to meaning of London, MaUan v. May, 11 M. & W. 653 ; Dendy ib. 13 M. & W. 511 ; but see WaUace V. Henderson, 11 Exch. 194 ; TalUs v. v. Att.-Gen., 33 L. J. Ch. 314. TaUis, 1 E. & B. 391. (m) 7 Bing. 735. d) 5 T. R. 118. (n) Bunn v. Guy, 4 East, 190. See e) 2 Chitt. 407. Howard v. Woodward, 34 L. J. Ch. /) 7 C. B. 716. 47. ,g) 4 Exch. 776. (o) 3 Beav. 383. (A See Giles v. Hart, 5 Jur. N. S. {p) But see NichoUs v. Stretton, 10 1381 ; Games v. Nesbitt, 7 H. &N. 778; Q. B. 346 ; and supra, p. 507. Fox V. Scard, 33 Beav. 827. (?) Price v. Green, 16 M. & W. i) 6 A. & E. 438. 346. k) 11 M. & W. 653. [631] * 513 INJUNCTIONS AGAINST BEEACH [CH. XXII. reasonable limit (r). In the case of a tailor, twenty miles from a certain house in Cornhill was held a reasonable limit (s). In the case of a milkman, five miles from Northampton Square, in the County of Middlesex (i), and three miles from Charles Street, Grosvenor Square (m), were held reasonable limits. In the case of a wine and spirit merchant a limit comprising the three counties of Carnarvon, Anglesey, and Merioneth, was held reasonable (a;). In the case of the trade of a general merchant in a country district, a limit comprising a consider- able section of the county of Cornwall was held reasonable («/). ' In the case of canvassing publishers, London and one hundred and fifty miles from the Post Office, Dublin, Edinburgh, and any other town in which the covenantees might have had an establishment within six months previous to the date of the covenant, were held not unreasonable limits (g). In the case of a coaching business, a covenant not to run any coach from Eeading to London was enforced by injunction (a). In the case of a carrier, a covenant not to carry goods between London and numerous towns in Norfolk was held reasonable (6) ; and in the case of a butcher, a limit of five miles was held * 513 reasonable (c). * A covenant, however, which restrains a man from carrying on business not merely at such place or places as the plaintiff might be practising in at the expiration of the service, but at any place where he might have been practising before, though for ever so short a space of time, is unreasonable (cZ). 32. A covenant by the licensee of a patent not to make any of the articles, which are the subject of the patent, without the invention applied to them, is not void as in restraint of trade (e). 33. When the restraint is limited in point of space, the distance in question is to be measured in a straight line upon a horizontal plane, unless it is expressly, or by necessary im- M Harms v. Parsons, 32 Beav. 328. («)Talli8 v. Tallis, 1 E. & B. 391. ■ Kolfe V. Eolfe, 15 Sim. 88. See Mallan v. May, 11 M. & W. 653. (i) Proctor v. Sargent, 2 M. & G. (a) Williams v. Williams, 2 Sw. 20. 253. See Leighton v. Wales, 3 M. & w) Benwell v. Inns, 24 Beav. 307. W. 645. (x) Turner «. Evans, 2 D. M. & G. (b) Archer v. Marsh, 6 A. & E. 959. 740. c) Elves v. Crofts, 10 C. B. 241. (y) Avery v. Langford, Kay, 663. id) Mallan v. May, 11 M. & W. 653. [582] (c) Jones V. Lees, 1 H. & N". 189. CH. XXII.] OF COVENANT OR AGREEMENT. * 514 plication directed to be measured by the most practicable mode of access (/). 34. An agreement in restraint of trade is divisible. Where an agreement of the sort contains a stipulation which is capable of being construed divisibly, and one part is void, as being unreasonable, while the other is not, the latter will be upheld, and the contract will not be held void altogether (^). 35. According to the earlier cases a covenant in restraint of trade was void, unless the consideration was adequate to the restriction ; but, since Hitchcock v. Coker (^), it may be con- sidered as settled at law that the adeqiiacy of the consideration will not be inquired into, and that if there be a legal considera- tion of value the contract will be upheld without reference to the amount of value (i). A court of equity may, however, at its discretion, decline to interfere where the disproportion between the restriction and the consideration is so great as to render the agreement a hard bargain and oppressive (A). 36. There is not any implied covenant or promise on the part of * the vendor or assignor of a business not * 514 to set up the same trade in opposition to the purchaser in the neighborhood of the spot where the business is carried on (?) ; but where the lease of a house and the good will of a trade had been sold and assigned upon an understanding, by word of mouth that the vendor should not set up the same trade in the same street, he was restrained by injunction from infringing the orftl contract (m). If the business of a firm has been carried on under an adopted name, a man who sells the good will of the business cannot set up the same business under the same name or style, but he cannot be prevented from using his own name (n). (/) Leigh V. Hind, 9 B. & C. 776 ; v. Ferguson, 7 C. B. 716 ; Tallis v. Atkyns v. Kinneir, 4 Exeh. 776 ; Duig- Tallis, 1 E. & B. 391. nan v. Walker, John, 446. See 1 Smith, {k) See Kimberley v. Jennings, 6 Sim. L. C. 355. 340; Croft v. Haw, 5 L. J. Ch. N. S. (g) Chesman v. Nainby, 2 Lord 805 ; Parkin v. Thorojd, 16 Beav. 59 ; Eaym. 1456 ; Mallan v. May, 11 M. & Falcke v. Grey, 4 Drew. 659 ; Vivers v. W. 664; Price v. Green, 13 M. & W. Tuck, 1 Moo. P. C. N. S. 616. 696, 16 M. & W. 346. (/) Cruttwell v. Lye, 17 Ves. 346 ; ih) 6 A. & E. 438. supra, p. 167. {i} Archer u. Marsh, t6. 959 ; Leigh- (m) Harrison v. Gardner, 2 Madd. ton V. Wales, 3 M. & W. 551 ; Pilking- 198 ; supra, p. 41. ton V. Scott, 15 M. & W. 657 ; Sainter (n) Churton u. Douglas, John. 174 ; supra, p. 167. [538] * 515 INJUNCTIONS AGAINST BREACH [CH. XXII. 37. A sum of money is sometimes named in an instrument as payable upon the breach of a covenant. In such cases the court has to determine whether the contract will be satisfied by the payment of the sum named in the instrument, or whether it will not ; whether, in other words, the sum named was in- serted by way of penalty to secure the performance of the agreement, or whether it was the intention of the parties that the act might be done on the payment of the sum named as an equivalent. If the covenant is an absolute one, and the sum named as payable upon breach has been inserted by way of penalty to secure the performance of the covenant, the pay- ment of the penalty does not oust the court of its jurisdiction to prevent the doing of the act stipulated not to be done (o). " A penalty," said Lord Loughborough, in Hardy v. Martin (p), " is never considered in this court as the price of doing a thing which a man has expressly agreed not to do " (5). But if the real intent and meaning of the contract is that a man should have the power, if he chooses, to do a particular act upon the payment of a certain specified sum, the power to do the act upon the payment of the sum agreed on is part of the * 515 express contract between the * parties ; and a court of equity will neither compel him to abstain from doing it nor relieve him, if he does do it, from the payment of the sum agreed on as an equivalent (r). 38. The mere use of the terms " penalty " or " liquidated damages " in a covenant is not conclusive as to the meaning of the instrument, and does not determine the intention of the parties. Like any other question of construction, the inten- tion is to be gathered from the nature of the agreement, and the language of the whole instrument taken together (s). If it appear from the agreement, taken as a whole, that the sum (0) Howard V. Hopkyns, 2 Atk. 371 ; (r) Lowe v. Peers, 4 Burr. 2225, Sloman v. Walter, 1 Bro. C. C. 418; 2228; Street v. Eigby, 6 Tes. 818; French v. Macale, 2 Dr. & War. 276; French v. Macale, 2 Dr. & War. 276; Bird V. Lake, 1 H. & M. Ill; Fox v. Sainter v. Ferguson, 1 Mac. & G. 289; Scard, 33 Beav. 327 ; Howard v. Wood- Gerrard v. O'Reilly, 3 Dr. & War. 414; ward, 84 L. J. Ch. 47 ; supra, pp. 80, Coles w. Sims, 5 D. M. & G. 1 ; Ran- 81. ger V, Great Western Railway Co., 5 H. (p) 1 Cox, 26. L. 94 ; Games v. Nesbitt, 7 H. & N. 778 ; (q) Comp. Stration v. Graham, 3 Pat. supra, pp. 80, 81. Sc. Ap. 119 ; Craigie v. M'Kenzie, 6 (s) Mercer v. Irving, El. Bl. & El. Pat. Sc. Ap. 117. 563. [534] CH. XXII.] OP COVENANT OR AGREEMENT. * 616 specified was not intended by the parties to be liquidated damages, it will be treated as a penalty, although the words " liquidated damages " may have been used (i). On the other hand, if the sum is not a penal sum, it will not be treated as a penalty merely because it is called so in the agreement (w). It is not material that the contract may be alternative in its form, if it appear clearly that there is essentially an agreement to do one of the alternatives («). 39. Where the payment of a smaller sum is secured by a larger («/), or where the damages to arise from the breach are not uncertain, but are capable of being ascertained, as where there is a particular sum to be paid which is less than the sum named as payable upon breach, the last-named sum will be considered as a penalty (2). So, also, where an agree- ment * contains several stipulations of various degrees * 516 of importance, the breach of all or any of which gives rise to an amount of damage which may be accurately meas- ured, and a disproportionate sum is annexed as payable gen- erally upon breach of all or any of the stipulations, the latter sum will be considered as a penalty, and not as liquidated damages (a). But if a contract, consisting of one or more stipulations, provides for the payment of a specified sum by way of compensation in case of the non-performance of all or of any of the things stipulated to be done, and the damages in each case of non-performance are in their nature altogether indefinite and uncertain, the sum named will be regarded as liquidated damages, and not as a penalty. Thus, where a surgeon had covenanted not to practise within a certain dis- {t) Coles V. Sims, 5 D. M. & G. 1 ; (y) Astley v. Weldon, 2 Bos. & P. Bird V. Lake, 1 H. & M. Ill ; Howard 346 ; Aylett v. Dodd, 2 Atk. 238 ; Setou ^. "Woodward, 34 L. J. Ch. 47. 0. Slade, 7 Ves. 273. («) Astley V. Weldon, 2 Bos. & P. {z) Reynolds v. Bridge, 6 E. & B. 346 ; Kemble v. Farren, 6 Bing. 141 ; 541, per Coleridge, J. Jones V. Green, 3 Y. & J. 304; Green (a) Kemble v. barren, 6 Bing. 141; V. Price, 13 M. & "W. 701 ; Gerraxd v. Davies v. Penton, 6 B. & C. 223 ; Horn- O'Reilly, 2 Dr. & War. 414; Sainter v. er v. Flintoflf, 9 M. & W. 680; Green Ferguson, 7 C. B. 728 ; Coles v. Sims, 0. Price, 13 M. & W. 701 ; S. C. as Price 5 D. M. & G. 1 ; Ranger v. Great v. Green, 16 M. & W. 346 ; Galsworthy Western Railway Co., 5 H. L. 72 ; v. Strutt, 1 Exch. 667 ; Atkyns v. Kon- Betts V. Burch, 4 H. & N. 506 ; Carnes neir, 4 Exch. 781 ; Reynolds v. Bridge, V. Nesbitt, 7 H. & N. 778; Sparrow v. 6 E. & B. 541; Ranger «. Great West- Paris, (6. 594; Dimech v. Corlett, 12 ern Railway Co., 5 H. L. 119 ; Dimech Moo. P. C. 229. V. Corlett, 12 Moo. P. C. 229. {x) Finch v. Earl of Salisbury, Finch. 212. [535] * 517 INJUNCTIONS AGAINST BREACH [CH. XXII. trict, or interfere with the patients of the plaintiff within that district, or induce them to employ any other medical man, &c., and to pay as liquidated damages, in the event of any infringe- ment of any of the stipulations of the covenant, the sum of £1000, it was held that, as the damages arising from the breach of these different stipulations were altogether uncertain and difficult to ascertain, the parties had a right to measure them for themselves and settle the amount to be paid for a breach of all or any one of the stipulations (&). So, also, where an attorney had covenanted not to carry on business within a certain district, or solicit or influence the clients of another attorney, and that if he in any way infringed that covenant he should pay £1000 as liquidated damages, it was held to be liquidated damages in the event of either of the things being done which were stipulated not to be done (c). So, also, where a man had covenanted not to carry on a * 517 certain trade within London or * 600 miles thereof, and for the observance of the covenant bound himself in the sum of £5000, as liquidated damages, it was held that the whole sum was recoverable in the event of either of the things being done which he had covenanted not to do (if). The fact that the sum agreed on is made payable upon one event only is evidence to show that it was intended to be liquidated damages (e). 40. When the amount of the penalty is small, as compared with the value of the subject of the agreement, the sum re- served will be treated as a mere penalty, and not as an alterna- tive argument (/). 41. The fact that a sum named in a lease as payable upon breach of the covenants therein contained, may greatly exceed the actual damage, does not render the sum so reserved a penalty. The court looks on it as an increased rent agreed (b) Atkyns v. Kinneir, 'i Exch. 781 ; (d) Price v. Green, 16 M. & W. Sainter v. Ferguson, 7 C. B. 716 ; Rey- 346. nolds V. Bridge, 6 E. & B. 528 ; Mercer (e) Sainter v. Ferguson, 7 C. B. 716 ; V. Irving, El. Bl. & EI. 563. See, also, Cass v. Thompson, 5 W. R. 289 ; comp. Leighton v. Wales, 3 M. & W. 545 ; Fox v. Scard, 33 Beav. 327. Cass V. Thompson, 5 W. R. 289 ; Rang- (/) Chilliner v. ChilUner, 2 Ves. er V. Great Western Railway Co., 5 528 ; Hohson v. Trevor, 2 P. Wm. 191 ; H. L. 73 ; Sparrow v. Paris, 7 H. & N. Howard v. Hopkyns, 2 Atk. 371 ; Logan 594. V. Wienholt, 1 CI. & Fin. 611. See Fry (c) Galsworthy v. Strutt, 1 Exoh. 663. on Specific Performance, p. 28. [536] CH. XXII.] OP COVENANT OB AGREEMENT. * 518 upon between the parties to be paid during the rest of the term. Thus in Woodward v. Gyles (^), where the agreement was that the defendant should not plough up any part of the land, and that if he did plough up any part of it he should pay at the rate of 20s. per acre per annum, the court held that the parties had fixed a price for the ploughing and refused an injunction. " The reservation of the reserved rent in this case," said Lord St. Leonards in French v. Macale (A), " dur- ing the whole term shows that the parties contemplated the payment of one rent in one event, and of another rent in another state of circumstances." So also in Eolfe v. Peter- son (i), where a certain sum was reserved, and the lessee covenanted that, in case any part of the land which liad been in tillage for the last twenty years should be broken up, he would pay the further sum of £5 per acre for every acre so broken up over the rent reserved and upon the same days of payment, the court held this a case for liquidated dam- ages, fixed and agreed upon between the * parties (A;). *518 So also in Parrant v. Olmius (Z), the reservation of an additional sum of £50 for every acre of meadow land, which shall be ploughed up or converted into tillage, was held to be liquidated damages. " There is nothing unreasonable," said Lord Tenterden (m), " in a landlord stipulating that particular lands shall be converted into tillage, and that in case that be done a larger sum shall be paid by way of stipulated dam- ages" (n). So also in a case where there was a covenant against erecting a weir under double the yearly rent, therein- after reserved, to be recovered by distress, the sum so reserved was held to be liquidated damages, notwithstanding it was called a penalty in the instrument. The power of distress reserved in an instrument is strong evidence that the sum so reserved is liquidated damages (o). 42. But where in addition to the increased rent there is also a stipulation that the doing of the act provided against shall (q) 2 Vera. 119. (l) 3 B. & Aid. 692. (h) 2 Dr. & War. 276. (m) lb. (i) 2 Bro. P. C. 436. (n) Smith v. Eyan, 9 Ir. L. 235. (k) Per Lord St. Leonards, Trench (o) Gerrard v. O'Reilly, 3 Dr. & War. V. Macale, 2 Dr. & War. 277. See 414. See French v. Macale, 2 Dr. & Jones V. Green, 8 Y. & J. 298. War. 269. [537] * 519 INJUNCTIONS AGAINST BREACH [CH. ZXII. be attended with a forfeiture of the interest of the covenantor, the sum is a penalty and not liquidated damages (p). Where, too, the covenant is in its nature continuing, the sum reserved as payable upon breach will be regarded as a penalty and not as liquidated damages. Thus, where a lessee had covenanted not to burn the demised premises, part of which was ancient meadow, under the penalty of £10 per acre to be recovered in the reserved rent for every acre so burned, he was restrained by Lord St. Leonards from burning part of the premises Qq}. 43. A court of equity will not determine upon interlocutory application to dissolve an injunction whether a sum reserved is a penalty or liquidated damages, but will only consider whether there is a good primd facie case for an injunction and whether more mischief will be done by granting than by with- holding it (r). *519 44. * After a court of law has determined that the word " penalty " in an agreement not to do a certain act under a certain penalty means liquidated damages, a man cannot come to the court for an injunction to restrain the further breach of the agreement after obtaining damages at law : the fact that owing to the bankruptcy of the defendant after judgment in the action the plaintiff has not recovered the sum stipulated by way of damages does not give him any equity to an injunction (s). So also where a man had commenced an action to recover a penalty as and for liquidated damages for the breach of an agreement on the part of the defendant not to practise as a surgeon within a certain district, it was held he was not entitled to an injunction also to restrain him from so practising (i). If a man after obtaining an injunction brings an action for damages, the defendant may come to the court and will have the injunction dissolved (m). 45. A court of equity has jurisdiction on a proper case being made out to restrain parties from violating an agreement not (p) French u. Macale, 2 Dr. & War. (r) Coles v. Sims, 5 D. M. & G. 1. 269. (s) Sainter v. Terguson, 1 Mac. & (q) French v. Macale, 2 Dr. & War. G. 286. See Fox v. Scard, 33 Beav. 269. See Howard v. Hopkyns, 2 Atk. 827. 371 ; City of London v. Pugh, 4 Bro. P. («) Carnes v. Nesbitt, 7 H. & N. 158, C. 395 ; Garden .;. Butler, 1 Hay & J. 778 ; Mayall v. Higby, 1 H. & C. 152. 112; Thornton «.' Kendall, 11 W. E. See Bird v. Lake, 1 H. & M. 111. 352. (u) Fox V. Scard, 33 Beav. 327. [538] CH. XXII.J OF COVENANT OR AGREEMENT. * 520 to apply to Parliament. In exercising the jurisdiction the court, as in other cases when it interposes by way of injunc- tion, acts merely upon the person, and does not in any way interfere with the privileges of Parliament (a;) ; it simply says that it is not competent for a given party to apply to Parlia- ment (z/). What is a proper case for the interference of the court is a question of much difficulty. The fact that the intended application to Parliament will abrogate existing rights and create new ones can give no right to an injunction, for every man has a right to apply to Parliament for a special law to supersede the rules of property by which he is bound (z). Nor will the court interfere, even when an agreement not to apply to Parliament has been entered into for the pur- pose of protecting private interests, * if the party who * 520 makes the application to the legislature can urge it upon grounds of public policy, for such questions are subjects for the discussion of the legislature and are beyond the prov- ince of a court of equity (a). The only case in which the court will interfere is where the matter complained of is con- nected solely with private property (6). Accordingly, Lord Cottenham refused to' restrain a railway company from apply- ing to Parliament for leave to abandon a part of their railway in contravention of an agreement entered into with the plain- tiff, who had withdrawn his opposition to a bill in a previous session of Parliament upon consideration of the cOmpany agree- ing to carry the railway in the direction which they proposed by their bill to abandon (c). So also "Wood, Y. C, refused to restrain a railway company from applying to Parliament for powers to make a new line in contravention of an agreement entered into with the plaintiff company, on the faith of which the plaintiff company had withdrawn all opposition to the bill presented by the defendant pompany in a previous session of (x) Heathcoate i». North StaflTordshire (a) Lancaster and Carlisle Railway Railway Co., 2 Mac. & G. 109. Co. v. North Western Railway Co., 2 (y) Lancaster and Carlisle Railway K. & J. .304. See Stockton and Hartle- Co. V. North "Western Railway Co., 2 pool Railway Co. v. Leeds and Thirsk K. & J. 304. Railway Co., 2 Ph. 666. (z) Ware v. Grand Junction Canal (6) Lancaster and Carlisle Railway Co., 2 R. & M. 470, 483 ; Heathcoate Co. v. North Western Railway Co., 2 V. North Staffordshire Railway Co., 2 K. & J. 303. Mac. & G. 109 ; Steele v. Midland Rail- (c) Heathcoate v. North Staffordshire way Co., 2 L. R. Ch. Ap. 287. RaUway Co., 2 Mac; & G. 100. [539] * 521 INJUNCTIONS AGAINST BREACH [CH. XXII. Parliament (t?). So also in Attorney-General v. Manchester and Leeds Railway Co. (e), there having been a motion pend- ing before the Lord Chancellor with reference to a particular bridge, which was to be made over the road in a way which was supposed to be injurious to the public, the parties had undertaken that nothing should be done until the hearing of the cause to interfere with the existing state of things, and notwithstanding the undertaking they had taken the opportu- nity of inserting in a bill before Parliament a clause to liberate them from that undertaking entirely, and 'to enable them to do that which they had undertaken not to do. Lord Cottenham, though he expressed himself in the strongest terms as to the conduct of the railway company, said he saw very great diffi- culty in preventing an application to Parliament, and * 521 that unless a strong authority * were adduced he should not assume that particular jurisdiction (/). 46. Whether a court of equity will interfere to restrain par- ties from violating a covenant not to oppose a bill in Parlia- ment is doubtful (^) . But in a case where the bill would, if passed into an act, have had the effect of depriving a minority of the shareholders of a railway company of the protection of the Wharncliffe order, the court would not enforce a covenant not to oppose it (A). 47. The mode in which contracts or covenants, when affirm- ative in form, are, as a general rule, enforced by courts of equity, is by decree for specific performance. But contracts and covenants, though affirmative in form, may often involve a negative in substance. When the importation of a negative quality into an affirmative agreement is not against the mean- ing of the agreement, a court of equity will. import the negative quality and restrain the doing of acts which are inconsistent with the agreement (^). Thus in Webster v. Dillon (A), where (d) Lancaster and Carlisle Railway (i) Lumley v. Wagner, 1 D. M. & G. Co. V. NorthWest.Rail.Co., 2 K. & J.293. 604 ; Holmes v. Eastern Counties Rail- (e) 1 Ra. Ca. 436. way Co., 3 K. & J. 675 ; Storer v. Great (/) 2 K. & J. 304, per Wood, V. C. Western Railway Co., 2 Y. & C. C. C. (g) Parker v. River Dun Navigation 48 ; De Mattos v. Gibson, 4 D. & J. Co., 1 De G. & S. 192; Maunsell v. >299 ; Seawell v. Webster, 7 W.R.691; Midland Great Western Railway Co. of Peto v. Brighton, Uckfleld, and Tun- Ireland, 1 H. & M. 162. bridge Wells Railway Co., 1 H. & M. (h) Maunsell v. Midland Great West. 468 ; Blackett v. Bates, 2 H. & M. 270. RaU. Co. of Ireland, 1 H. & M. 162. (i) 3 Jur. N. S. 432. ^ ^^^ =6 [540] '^i^^/V^c/ CH. XXII.] OF COVENANT OB AGREEMENT. * 522 an actor had agreed to perforin at Sadler's Wells Theatre, but the agreement did not contain a stipulation that he would not perform elsewhere, Wood, V. C, restrained him from perform- ing at any other place than the plaintiff's theatre on tlie nights on which he had by his agreement covenanted to act there. So also a man, who in a demise of land has entered into a covenant for quiet enjoyment, will be restrained from doing acts which are in violation of the covenant (Z). So also lessees who had covenanted to manage land or cultivate a farm in a husband-like * manner have been restrained from * 522 ploughing up pasture (to) or meadow, land (w), from carrying off the farm hay, straw, dung, crops, &c., except according to the custom of the country (o), and the usual course of husbandry (p), from sowing the land with pernicious crops (g), and turning young goats into a wood(r). So also persons who had covenanted to keep the banks of rivers and ponds in repair were restrained from destroying or injuring them(s). So also a man who had covenanted to keep and preserve trees from waste and damage was restrained from felling or injuring the timber (t). So also a railway company which had obtained the ownership of land under an agreement with the land-owners as to the mode in which a bridge or a road was to be constructed on the land, was not allowed to depart from the terms of the agreement. Another company claiming under the former is equally bound (m). So also a man who (l) Tipping V. Eckersley, 2 K. & J. pp. 249, 250. See also, as to covenants 270. See Shaw v. Stenton, 2 H. & N. in a farming lease, Gale v. Bates, 3 H. 858 ; EoUeston v. New, 4 K. & J. 640 ; & C. 84. In Pratt v. Brett, 2 Madd. 62, Great Northern Railway Co. v. Lanca- and Onslow v. , 16 Ves. 173, the shire and Yorkshire Railway Co., 1 Sm. tenant waS tenant from year to year. & Gr. 81. In Onslow v. , ib., there appears to (rn) Drury v. Molina, 6 Ves. 328; have heen no express covenant to cul- Pratt V. Brett, 2 Madd. 62. tivate in a husband-like manner : the in) Pratt v. Brett, ib. covenant seems to have been imphed (o)I'uUeney«.Shelton,5Ves.260,n.; by the court. But see Lathropp v. Kimpton v. Eve, 2 V. & B. 349 ; Pratt Marsh, 5 Ves. 260 ; Johnson v. Gold- V. Brett, 2 Madd. 62 ; Walton v. John- swaine, 3 Anstr. 749. son, 15 Sim. 352. See Johnson v. (q) Pratt v. Brett, 2 Madd. 62. Goldswaine, 3 Anstr. 750 ; citing Geast (r) Rogers v. Price, 13 Jur. 820. V. Lord Belfast. See, also, 2 Bro. C. C. (s) Lord Bathurst v. Burden, 2 Bro. 64, n. C. C. 64 ; Lord Kilmorey v. Thackeray, (p) Onslow V. , 16 Ves. 173. cited ift. See, as to covenants to cultivate accord- (t) Bernard v. Meara, 12 Ir. Lh. 3«9. ing to the custom of the country, Webb See also, as to covenants as to trees, V. Plummer, 2 B. & Aid. 746 ; Womers- supra, p. 242. ley V. Dally, 26 L. J. Exch. 219; supra, (w) Edinburgh, &c.. Railway Co. v. [541] • 523 INJUNCTIONS AGAINST BREACH [CH. XXII. has covenanted to carry on a certain business will be restrained from doing or causing any thing to be done, which would put it out of his power or the power of any other person to carry on the business (x). So also a lessor who has entered into a direct, specific, and express covenant with a lessee to perform * 523 all the covenants in the original lease, under * which he holds from his own lessor, may not by any surrender of the lease derogate from the rights which his own lessee has acquired from him under the lease, and he will be restrained by injunction from acting in violation oi the covenants, under which he became bound to his own lessee (^). So also rail- way companies have been restrained from entering into agree- ments which are in violation of or are inconsistent with a subsisting agreement (2) So also where the lessee of a mill with engines, boilers, and other machinery attached thereto, who had covenanted to keep the same in good repair, reason- able tear and wear excepted, had pulled down part of the machinery and put up in its place more powerful machinery, his assignees in bankruptcy were restrained from removing the new machinery (a). So also where a plan has been approved between parties for the erection of a building, one of them will be restrained from afterwards interfering with the mode of building approved (6). So also where a husband had stipu- lated by deed that a child should be under the sole care and protection of his wife, the court will, if it can be shown that the control of the father would be injurious to the child, restrain him from removing or prosecuting any proceedings to obtain the child from the custody of his wife or from interfer- ing with her in the management, care, and protection of the child (c). 48. In Mayor of London v. Hedger (rf), it was decreed upon Campbell, 4 Macq. 578. See Foster Western Eailway Co. v. Birmingham V. Birmingham, Wolverhampton, &c., and Oxford Junction Eailway Co., 2 Railway Co., 2 W. R. 378. Ph. 597. (x) Hooper v. Brodrick, 11 Sim. 47. (o) Sunderland v. Newton, 3 Sim. See liumley v. Wagner, I D. M. & G. 450. 604. (6) Slee v. Corporation of Bradford, (y) Piggott V. Stratton, 1 D. F. & J. 4 Giff. 262. 33. (c) Swift V. Swift, 34 Beav. 266; {z) Shrewsbury and Chester Railway comp. Vansittart v. Vausittart, 2 D. & Co. V. Shrewsbury and Birmingham J. 249. Railway Co., 1 Sim. N. S. 410 ; Great (d) 18 Ves. 355. [542] CH. XXII.J OP COVENANT OR AGREEMENT. * 524 demurrer that a covenant by a lessee to deliver up at the end of the term the premises in good repair has not the effect of preventing him from being restrained during the term from pulling down the premises and carrying away the materials (e). 49. * But if an agreement affirmative in form is of * 524 such a nature that it cannot be specifically enforced, and the application for an injunction is in effect and spirit an appli- cation for a decree for specific performance, the court will not import a negative quality into the agreement, but will leave the plaintiff to his remedy by damages at law (/). Thus, in Clarke V. Price Qg'), where the defendant had agreed to take notes of cases in court, and compose reports for the plaintiff, and had failed to do so, Lord Bldon refused to restrain him from making reports for other persons (A). So, also, where a grant had been made to the plaintiff of an office involving duties of a personal and confidential character, the court refused to restrain the defendant from employing any other person than the plaintiff in the ofiSce, as the case was one where, from its very nature, specific performance could not be decreed (€). So, also, where the plaintiff had contracted with a railway company for a stipulated sum to work the line of the railway, and to keep the engines and rolling stock in repair, the court, upon the ground that the agreement was one which from its very nature could not be specifically enforced, refused to restrain the company from employing any other person than the plain- tiff in the duties for which he had been engaged (/). So, also, where a company had engaged to employ the plaintiff as (e) See Ward v. Duke of Buckingham, 112 ; Stevens v. Benning, 6 D. M. & G. cited 10 Ves. 161, as to the enforcement 223 ; Knight v. Burgess, 10 Jur. N. S. of covenants, aflrmative in character, 166. which, as appeared from defendant's (q) 2 Wils. C. C. 157. conduct, he was going to perform. See (A) See Baldwin v. Society of Use- also, as to importing a negative charac- ful Knowledge, 9 Sim. 393 ; Hope o. ter into an affirmative covenant, New- Hope, 22 Beav. 351. march v. Brandling, 8 Sw. 99 ; Frogley (i) Pickering v. Bishop of Ely, 2 Y. V. Lord Lovelace, John. 833 ; Lady An- & C. C. C. 249. See Firth v. Ridley, dover v. Robertson, 26 L. T. 28 ; Philipps 33 Beav. 518 ; comp. Thornton v. Ken- f.Treeby, 8 Jur. N. S. 999. dall, 11 W. R. 352. (/) Lumley v. Wagner, 1 D, M. & (j) Johnson v. Shrewsbury and Bir- G. 622; De Mattos v. Gibson, 4 D. & J. mingham Railway Co., 3 D. M. & G. 299; Peto v. Brighton, Uckfield, and 914. See Home v. North Western Tunbridge WeUs Railway Co., 1 H. & Railway Co., 10 W. R. 170 ; Chaplin v. M. 468. See Heathcoate v. North North Western Railway Co., 5 L. T. N. Staffordshire Railway Co., 2 Mac. & G. S. 601. [543] * 525 INJUNCTIONS AGAINST BREACH [CH. XXII. a broker for engaging freights, effecting charter-parties, &c., and it was stipulated that his name should appear jointly with that of the secretary in all the advertisements of the company, the court would not restrain the company from issuing * 525 any advertisement, unless the name of the * plaintiff was therein inserted (A). So, also, the court would not re- strain the directors of a company from acting upon and enforcing the resignation of an agent (Z). So, also, where an indenture was held to constitute the relation of master and servant and not that of partner. Lord Truro dissolved an injunction which had been granted restraining the defendant from excluding the plaintiff from the management of the business (wi). So, where a man had covenanted to use and keep open the demised premises as an inn, the court would not restrain him from dis- continuing to use them and keep them open as an inn (w). So, also, where a contract is vague, indefi-nite, or uncertain in its terms, the court will not import a negative into it and enforce it by way of injunction (o). So, also, in a case where there was a proviso in the lease of a mine that the lessor might at the end of the term purchase the machinery in the mine at a certain valuation to be made by arbitrators, one of them to be nominated by the lessee, the court would not restrain the lessee from removing the machinery at the end of the term, as it could not compel him to name an arbitrator (75). So, also, the court would not restrain a man from disclosing a secret which he had agreed to keep (g), or from selling certain medicines, made from a secret receipt, to any other person than the plaintiff (r). Nor, where the stipulations sought to be en. forced are subsidiary to the whole agreement, will a negative be imported so as to be a foundation for an injunction, unless the whole agreement is capable of being specifically enforced (s). (k) Brett w. East India and London Courtenay, 15Ir. Ch. ISSjLowt'. Innes, Shipping Co., 2 H. & M. 404. 10 Jur. N. S. 1037. (I) Mair v. Himalaya Tea Co., 1 L. (p) Hamilton v. Dunsford, 6 Ir. Ch. B. Eq. 411. 412. (m) Stocker v. Brocklebank,- 3 Mac. (q) Newberry w. James, 2 Mer. 446; & G. 267. Williams v. "Williams, 3 Mer. 157 ; supra, (n) Hooper v. Brodrick, 11 Sim. 47. p. 181. (0), Paris Chocolate Co. v. Crystal (r) Newberry «. James, 2 Mer. 446; Palace Co., 3 Sm. & G. 119 ; De Mattos but see "Williams v. "Williams, 3 Mer. V. Gibson, 4 D. & J. 276; Bernard v. 157; supra, p. 181. Meara, 12 Ir. Ch. 389 ; Armstrong v. (s) Paris Chocolate Co. v. Crystal [544] CH. XXII.J OP COVENANT OR AGREEMENT. * 526 50. * But though the agreement may be one which * 526 cannot from its very nature be specifically enforced as a whole, the court will, where parts of the agreement are distinct and separable from the rest, import a negative and interfere by way of injunction (<). Where, therefore, a railway company had granted to certain lessees a license to publish advertise- ments in the company's carriages, and the sole license of selling books, &c., at their stations, the court restrained the company from removing the advertisements, and from evicting the plaintiff from the bookstalls at the stations, though there were other parts of the agreement which the court could not enter into (u). 51. If the contract is substantially an afiSrmative one, a negative will not be imported into it so as to form a foundation for an injunction. Thus, where the contract was to sell " all the coal, &c.," to the plaintiff, the court did not think it could be maintained that a negative was involved in the contract so as to disable the defendant from supplying other persons with coals, &c., he having covenanted to sell all to the plaintiff (a;). " The contract," said Wood, V. C. («/), " is a substantial one, not a mere negative contract, designed to prevent the defend- ant from dealing with other parties to the prejudice of one who wishes to exercise a monopoly." 52. The contract of charter-party is, from the peculiar nature of the subject of the contract, an exception to the rule that a negative quality will not be imported into an affirmative agree- ment, unless the agreement is of such a nature that a decree for specific performance can be made (2). " I think," said Lord Chelmsford, in De Mattos v. Gibson (a), " that a vessel under a charter-party ought to be regarded as a chattel of peculiar value to the charterer, and that although a court of equity cannot compel a specific performance of the contract which it contains, yet that it will restrain the employment of Palace Co., 3 Sm. & G. 119; Scottish (x) Pollard v. Clayton, 1 K. & J. North Eastern Railway Co. v. Stewart, 474. 3 Macq. 382. See Brett v. East India {y) lb. and London Shipping Co., 2 H. & M. (z) De Mattos v. Gibson, 4 D. & J. 404. 276 ; Sevin- v. Beslandes, 30 L. J. Ch. (t) Holmes v. Eastern Counties Rail- 457 ; Messageries Impe'riales v, Baines way Co, 3 K. & J. 675. H W. R. 322. (u) lb. (a) 4 D. & J. 276, 298. 35 [545] *527 INJUNCTIONS AGAINST BREACH [CH. XXII. the vessel in a different manner, whether such employ- * 527 ment is * expressly or impliedly forbidden according to the principle expressed in Lumley v. Wagner." If a charter-party is bond fide entered into between the owner of a vessel and the charterer, either party is entitled to an in- junction to restrain the other from doing any thing inconsistent with the agreement (&). 53. If the agreement consists of two or more stipulations, and is one which cannot from its very nature be specifically enforced as a whole, the court will not import a negative quality into the agreement so as to be a foundation for an injunction, unless the person who makes the application has actually performed his own part of the agreement. The mere assertion on his part that it is his intention to perform his part of the agreement is not sufficient, unless the court can decree specific performance against him (c). Thus,, where an agree- ment had been entered into between a railway company and a contractor, whereby the contractor agreed to complete the line of railway, and the company agreed to pay him in shares and debentures as the works progressed, but the company repudiated the contract, the court refused to restrain the company from dealing with the debentures and shares in a manner inconsistent with the agreement, on the ground that it was beyond the power of the court to make him perform his part of the contract (cZ). So, also, in Pechter v. Montgom- ery (e), the manager of a London theatre engaged a provincial actor, desirous of appearing on a London stage for two years. Though there was nothing express on the subjept, the court enforced an engagement on the part of the manager to em- ploy the actor for a reasonable time, and on the part of the actor not to perform elsewhere. The manager having delayed the appearance of the actor for five months, the court considered that his conduct was in spirit a breach of the en- gagement, and would not restrain the actor from acting else- (b) Sevin v. Deslandes, 30 L. J. Ch. (c) Peto v. Brighton, Uckfield, and 457 ; Messageries Imperiales v. Baines, Tunbridge Wells Railway Co., 1 H. & 11 W. E. 822; Heriot v. Nicholas, 12 M. 468. W. R. 844. See, as to the measure of (d) lb. See Rigby v. Great Western damages in such a case, De Mattos v. Railway Co., 15 L . J. Ch. 266 ; Ogden Gibson, IJ. & H. 79 ; S. C, 7 Jur. N. S. o. Fossick, 32 L. J. Ch. 73. 282. (e) 33 Beav. 22. [546] CH. XXII.] OP COVENANT OR AGREEMENT. * 528 where. In Holmes v. Eastern Counties Eailway (/), the conduct of the * plaintiff in respect to his part of * 528 the agreement had not been strictly honorable, but the damage to which he would have been exposed, had the injunc- tion been refused, was so serious and irreparable, that the court imported a negative quality into the agreement and granted an injunction. The court, however, acted unwillingly (^). 64. There was till recently much doubt upon the authorities whether the court would enforce by injunction the negative part of an agreement containing both affirmative and negative stipu- lations, unless the affirmative part of the agreement was of such a nature that it could be specifically enforced by decree. The authorities on the subject were not uniform. In some cases it had been held that the negative part could not be enforced by injunction, unless the agreement could be enforced as a whole (A) ; but in other cases the negative part had been en- forced, although the court had no power to decree specific performance of the whole agreement (t). The authorities were reviewed by Lord St. Leonards in Lumley v. Wagner (A), and the principle was fully established by him that the court may enforce the negative part of an agreement by injunction, although the affirmative part is of such a nature that it cannot be specifically enforced by decree. The defendant had there entered into an engagement with the plaintiff to sing at his theatre and not to sing at any other theatre. Lord St. Leon- ards restrained her from singing at any other theatre than the plaintiff's, though it was beyond all doubt that he had not the power to decree specific performance of the affirmative part of the agreement. " The case," he said (Z), " is a mixed one, consisting not of two correlatives to be done, one by the plain- tiff and the other by the defendant, but of an act to be done by the defendant alone, to which is superadded a negative stipu- lation on her part to abstain from the commission of any act which will break in upon her affirmative covenant, the one (/) 3 K. & J. 675. richsen v. Cabbum, 2 Ph. 52; Great Ig) See Hamilton v. Dunsford, 6 Ir. Northern Railway Co. v. Manchester, Ch. 412. Sheffield, and Lincolnshire Railway Co., (h) Kemhle v. Kean, 6 Sim. 333 ; 5 De G. & S. 149. Kimherley v. Jennings, 6 Sim. 340. (k) 1 D. M. & G. 604. (i) Rolfew. Rolfe, 15Sim. 88; Diet- (l) lb. 618. [547] * 529 INJUNCTIONS AGAINST BREACH [CH. XXII. being auxiliary to, concurrent and operating witli the * 529 * other. The agreement to sing for the plaintiff during three months at his theatre, and during that term not to sing for anybody else, is not a correlative contract ; it is in effect one contract. The engagement to perform at one theatre must necessarily exclude the right to perform at the same time at another theatre" (m). The negative part, however, of an agreement will not be enforced, unless it constitute a distinct, separate, and substantive part of the agreement. If the neg- ative part is merely subsidiary or incidental to the affirmative part, or if the affirmative and negative' stipulations are merely correlative to and not capable of being separated from each other, the court will not enforce the negative part by injunc- tion, unless the affirmative part is of such a nature that it can be specifically enforced (n). Thus, in Hills v. CroU (o). Lord Lyndhurst refused to restrain the violation of a negative cove- nant. " It was," said Lord St. Leonards (p), " a case in which A. had given B. a sum of money, and B. had covenanted that he would buy all the acids he wanted from the manufactory of A., who covenanted that he would supply the acids, and B. also covenanted that he would buy his acids from no other person. Lord Lyndhurst refused to prohibit B. from obtaining acids from any other quarter, both because the covenants were correlative, and because he could not compel A. to supply B. with acids ; and if, therefore, he had restrained B. from taking acids from any other quarter, he might have ruined him in the event of A. breaking his affirmative covenant to supply the acids." 55. A man who seeks the aid of the court to enforce by injunction the negative part of an agreement, which contains also affirmative stipulations, is required to show that he has performed his own part of the agreement. If he has not (m) Webster v. Dillon, 8 Jur. N. S. ping Co., 2 H. & M. 404 ; Kernot v. 433. Potter, 3 D. F. & J. 459. See Lumley (n) Hills V. CroU, 2 Ph. 60, 1 D. M. v. Wagner, 1 D. M. & G. 604; Ogden & G. 627, n. ; South Wales Railway Co. v. Fossick, 32 L. J. Ch. 73 ; Green v. V. Wythes, 5 D. M. & 6. 889 ; Hamil- Low, 22 Beav. 627 ; Paris Chocolate ton V. Dunsford, 6 Ir. Ch. 412 ; Peto v. Co. v. Crystal Palace Co., 3 Sm. & G. Brighton, Uckfield, and Tunbridge 119. Wells Railway Co., 1 H. & M. 468 ; io) 2 Ph. 60, 1 D. M. & G. 627, n. Brett V. East India and London Ship- (p) 1 D. M. & G. 626. [548] CH. XXII.] OF COVENANT OR AGREEMENT. * 531 actually done all that the contract required on his part, the court will * not interfere (§'). The mere assertion * 530 on his part that it is his intention to complete his own part of the agreement is not sufficient, unless the court can decree specific performance against him (r). But if the dam- age to the plaintiff from refusing the injunction would be seri- ous, the court may interpose, although his conduct in respect to his own part of the agreement has not been strictly hon- orable (s). 56. The jurisdiction of courts of equity over contracts and covenants is not confined to cases where an action at law can be maintained, but extends to cases where an action at law is not maintainable. It is in many cases a matter of much doubt whether a covenant with respect to the use and occupation of land runs with the land, so as to bind at law an assignee, although assigns be expressly named in the covenant; but covenants controlling the enjoyment of land, though not bind- ing at law, will be enforced in equity, provided the person into whose hands the land passes has taken it with notice of the covenants (t). " The question," said Lord Oottenham (m), " is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner incon- sistent with the contract entered into by his vendor, and with notice of which he purchased " (a;). Where, accordingly, the owner of the fee had granted leases restricting the lessees from, erecting a hotel without the consent of himself, his heirs, or * assigns, which restriction was required in conse- * 531; quence of the lessor having covenanted with another lessee not to let any land or house for that purpose, a pui> (q) Stocker v. Wedderburn, 3 K. & (u) lb. J. 405 ; De Mattos v. Gibson, 4 D. & J. (x) Whatman v. Gibson, 9 Sim. 196 ; 276 ; Fechter v. Montgomery, 33 Beav. Mann v. Stephens, 15 Sim. 377. ; Patch- 22. See Rigby v. Great Western Rail- ing v. Dubbins, Kay, 1, affi'd. 23 L. J. way Co., 15 L. J. Ch. 266 ; Hope v. Ch. 45 ; Coles v. Sims, 5 D. M. & G. 1 ; Hope, 22 Beav. 351 ; but see S. C. on Child v. Douglas, Kay, 560, 5 D. M. & 8 D. M. & G. 731. G. 739 ; Jackson v. Fenwiek, 21 L. T. ()■) Peto V. Brighton, Uckfield, and 223 ; Johnstone v. Hall, 2 K. & J. 414 ; Tunbridge Wells KaUway Co., 1 H. & Hodson v. Coppard, 29 Beav. 4 ; Her- M. 468. bert v. Maclean, 12 Ir. Ch. 84 ; Parker (s) Holmes v. Eastern Counties Rail- v. Whyte, 1 H. & M. 167 ; Eastwood v. •way Co., 3 K. & J. 675: supra, p. Lever, 33 L. J. Ch. 357; Clements v. 527. Welles, 1 L. R. Bq. 200 ; Wilson v. Hart, (i) Tulk V. Moxhay, 2 Ph. 774, 1 H. 1 L. E. Ch. Ap. 463 ; Western v. M'Der- & Tw. 105, 18 li. J. Ch. 83. mott, 2 L. R. Ch. Ap. 72. [549] * 532 INJUNCTIONS AGAINST BREACH [CH. XXII. chaser of the reversion in fee of one of the plots leased sub- ject to the restriction, who subsequently purchased the lease of the same lot, was restrained from building a hotel on the land («/). If land is vested in trustees who sell building lots, subject to restrictive covenants, each purchaser has an equity against the other purchaser to compel the observance of the covenants (s). Where land in settlement is sold, the pur- chaser's covenants are analogous to a reservation, and enure to the benefit of all parties interested under the settlement (a). Subsequent purchasers of the estate may enforce them, al- though they bought in ignorance of their existence (J). 57. The jurisdiction in granting relief against the breach of covenants, which do not run with the land, by persons who take with notice, is not limited to cases where the covenant is in respect of the use and occupation of land. The court has jurisdiction on a proper case being made out to enjoin against the breach of collateral or personal covenants by persons who take with notice. The remedy by damages at law being, as a general rule, adequate in such cases for the purpose of justice, no case is to be found in the books in which the jurisdiction has been exercised, but there seems to be no doubt of its existence. A contrary doctrine was laid down by Lord Brougham in Keppell v. Bailey (c), but that case can be no longer considered as an authority {d'). 58. The principle of the court with respect to notice in its application to the case of persons taking with notice of a previ- ous contract, has been thus generalized by Knight Bruce, L. J., in De Mattos v. Gibson (e) : " It may be stated at least as a general rule that where a man by gift or purchase acquires property from another, with knowledge of a previous contract lawfully, and for valuable consideration, made by him * 532 * with a third person to use and employ the property for a particular purpose in a specified manner, the racquirer shall not, to the material damage of the third person in opposition to the contract, and inconsistently with it, use and employ the property in a manner not allowable to the giver or («) Jay V. Richardson, 30 Beav. 567. (h) lb. \z) Eastwood v. Lever, 33 L. J. Ch. (c) 2 M. & K. 517. ^67. (d) Sug. V. & P. App. 801-803. (a) Child V. Douglas, Kay, 560. (e) 4 D. & J. 282. [550] CH. XXII.] OF COVENANT OR AGREEMENT. * 533 seller " (/). Accordingly, the mortgagee of a charter-party, or the purchaser of a ship, with notice of a charter-party previously entered into, was restrained from doing any act which would have the effect of interfering with the due per- formance of the charter-party (^). 59. If the right at law under the covenant is clearly estab- lished and the breach is clear, and the covenant is of such a nature that it can consistently with the rules and principles of the court be specifically enforced, the court will not, unless under very exceptional circumstances, take into consideration at the hearing the comparative injury to the parties from grant- ing or withholding the injunction (A). There may be cases in which it is clear that the damage to arise from the breach would be inappreciable, and in which the court would refuse to interfere. But the case must be free from all possibility of doubt. It must be clear that there is no appreciable or at all events no substantial damage before the court will refuse, upon the ground of smallness of damage, to withhold its hand from enforcing the execution (i) . The mere fact that there has been a breach of covenant is a suiBcient ground for the interference of the court by injunction. A covenantee has the right to have the actual enjoyment of property modo et formd as stipulated for by him (A). It is no answer to say that the act complained of will inflict no injury on the plaintiff, or will be even beneficial to him. It is for the plaintiff to judge whether * the agreement shall be preserved as far as he * 533 is concerned, or whether he shall permit it to be violated. It is not necessary that he should show that any damage has been done. It being established that the acts of the defendant are a violation of the contract entered into by him, the- court will protect the plaintiff in the enjoyment of the right which (/) See Barfield v. Nicholson, 2 L. See Eigby v. Great Western Railway J. Ch. 90;.Hoare v. Dresser, 7 H. L. Co., 15 L. J. Ch. 266; Lady Andover 317. V. Robertson, 26 L. T. 23 ; Warden ot ig) De Mattos v. Gibson, 4 D. & J. Dover Harbor v. South Eastern Rail- 276 ; Messageries Imp&iales v. Baines, vray Co., 9 Ha. 493 ; Western w. M'Der- 11 W. R. 322. mott, 2L. R. Ch. Ap. 72. (A) Tipping v. Eckersley, 2 K. & J. {h) Tipping v. Eckersley, 2 K. &. J. 270 ; Johnstone v. Hall, ib. 420 ; Dicken- 270 ; Johnstone v. Hall, ib. 420 ; Pigott son V. Grand Junction Canal Co., 15 v. Stratton, John. 354, 1 D. F. & J. 33 ; Beav. 270. Western v. M'Dermott, 2 L. R. Ch. (i) Lloyd V. London, Chatham, and Ap. 72. Dover Railway Co., 2 D. J. & S. 568. [551] * 534 INJUNCTIONS AGAINST BREACH [CH. XXII. he has purchased (Z). The circumstance that a work under- taken in breach of contract is one of great public importance, cannot be taken into consideration (m). 60. In exercising the jurisdiction by way of mandatory injunction against acts in violation of contract, covenant, or agreement, the court looks to the express stipulation of the agreement, and is not, as in cases of trespass or nuisance, influenced by considerations as to the nature or extent of the damage, or the comparative convenience or inconvenience of granting or withholding the injunction. A man who enters into an agreement is bound in equity to a true and literal per- formance of it. He cannot be suffered to depart from it at his pleasure, leaving the other party to his remedy by damages at law (n). There may be cases in which it is so clear that the mischief to arise from a breach of covenant would be inappreciable, that the court may decline to interfere on the ground that a mandatory injunction would be out of all pro- portion to the requirements of the case, and would operate with extreme harshness on the defendant (o). But, as a general rule, the inconvenience to the defendant will not be taken into consideration (^). Nor can the defendant be permitted to set up the inconvenience to the public which would arise from his being compelled to perform his agreement (q). * 534 61. * The case of Lane v. Newdigate (r) is the first instance to be found in the books in which an order for a mandatory injunction was made against a breach of agreement. The plaintiff was assignee of a lease granted by the defendant for the purpose of erecting mills, and the defendant was bound {I) Dickenson v. Grand Junction Kail- (o) Warden of Dover Harbor v. way Co.,«15Beav. 270; Piggotti). Strat- South Eastern Eailway Co., 9 Ha. ton, John. 341. See Eigby v. Great 493. See Lloyd v. London, Chatham, Western Eailway Co., 15 L. J. Ch. and Dover Railway Co., 2 D. J. & 266 ; Lady Andover v. Robertson, 26 S. 568. L. T. 23 ; Ingram v. Morecraft, 33 (p) Supra, p. 231. See, as to man- Beav. 49. datory injunctions, supra, p. 230. (m) Lloyd v. London, Chatham, and (q) Raphael v. Thames Valley Eail- Dover Eailway Co., 2 D. J. & S. way Co., 2 L. R. Ch. Ap. 147 ; Fos- 568, ter v. Birmingham, Wolverhampton, (h) Storer v. Great Western Rail- and Dudley Railway Co., 2 W. R. 378 ; way Co., 2 Y. & C. C. C. 48. See see, also, Att.-Gen. v. Borough of Bir- Lumley v. Wagner, 1 D. M. & G. mingham, 4 K. & J. 528 ; Goldsmid ». 619 ; Lloyd u. London, Chatham, and Commissioners of Tunhridge Wells, 1 Dover Railway Co., 2 D. J. & S. L. R. Ch. Ap. 349. 568. (r) 10 Ves. 192. [562] CH. XXII.j OP COVENANT OR AGREEMENT. * 535 by covenant to supply water for canals and reservoirs on his own estate to work the plaintiff's mills. The plaintiff brought his suit to enforce the doing of repairs by the defendant, and the restoring a cut and stop-gate in existence at the date of the lease, and the removing a lock which had been made since the date of the lease. Lord Eldon doubted whether he could order repairs to be done, or the works to be restored, but arrived at the same end by restraining the defendant from hin- dering the enjoyment of the plaintiff by keeping the works out of repair, or by the use of the lock, or by continuing the removal of the stop-gates (s). So also an agreement to grant a right of way was carried into effect by an injunction to restrain the removal of the materials and the destruction of the way (f). So also a man was restrained from continuing to keep up a wall on his land which obstructed a right which the plaintiff had under an agreement with him to use a certain road (m). So also the commissioners of woods and forests, who had granted a lease of ground to the plaintiff as a site for a club-house, and had covenanted in the lease that part of the land adjoining the ground so let should be laid out as an orna- mental garden, and that no buildings should be erected thereon, were restrained from permitting such buildings as had already been erected from continuing on the ground (a;). So also a solicitor who had sold his business to the plaintiff, but kept j)ossession of the books contrary to his covenant, was restrained from keeping the books away from the possession of the plaintiff, and from permitting the same to ^ remain away * 535 from the office of the plaintiff (y). So also a partner who had taken away one of the partnership books from the counting-house of the firm in breach of a covenant in the partnership deed, was restrained from continuing to violate the covenant (s), and from keeping it at any other place than the partnership premises («). So also a mine-owner who had (s) See Lord Kilmorey v. Thack- (x) Eankin v. Huskisson, 4 Sim. 13. eray, cited 2 Bro. C. C. 64. Comp. {y) Whittaker v. Howe, 3 Beav. Blakemore v. Glamorganshire Railway 383. Co., 1 M. & K. 185. (z) Taylor v. Dayis, 4 L. J. Ch. N. (t) Newmarch v. Brandling, 3 Sw. S. 18, 7 L. J. Ch. N. S. 178, 3 Beav. 99. 388, n. (u) Philipps V. Treeby, 8 Jur. N. S. (a) Greatrex v. Greatrex, 1 De G. & 999. '"''■' s. 692. [553] * 535 INJUNCTIONS IN AID OP [CH. XXII. covenanted to leave sujBicient barriers against the adjoining collieries, but had broken his covenant, was restrained from permitting a communication with an adjoining mine to remain open and water to flow therefrom (5). So also a railway com- pany who had agreed with a man to make a road at a certain level, were restrained from making a road at a lower level than they had agreed to do (e). So also where a building has been erected in a form that is in violation of a contract or an act of Parliament, the court may restrain the defendant from using the building (rf), or may compel him to alter the eleva- tion or form of the building so as to be in conformity with the terms of the contract or the act of Parliament, as the case may be (e). SECTION II.— INJUNCTIONS IN AID OP SPECIFIC PER- FORMANCE. 1. Pending suit for specific performance, defendant may be restrained from alienating, &c., subject-matter. 2. Relief may be given even against third parties. 3. But defendant cannot be restrained from buying second estate. 4. Purchaser will be restrained, pending bill for specific performance, from bringing action at law for his deposit. 6. But deposit must be paid into court. 6. Injunction will be granted [{prima fade case be made out. 7. Cases of injunction against ejectment. 8. Practice where the legal title to the thing agreed upon remains in one of the con- tracting parties while an equitable right passes to the other. 9. Instrument may be supported as an agreement in equity which has no effect at law. 10. Injunction to restrain actions at law after dismissal of bill for specific performance. 11. To restrain proceedings at law after decree for specific performance. 1. A court of equity has jurisdiction pending a suit for specific performance to restrain the vendor from alienating or affecting by other acts the subject-matter in litigation. Whether or not the jurisdiction will be exercised depends on the special circumstances of the case.^ If there is a clear, undisputed (b) Lord Mexborough v. Bower, 7 South Eastern Railway Co., 9 Ha. Beav. 127, affi'd. 2 L. T. 205. See 493. Powell V. Aiken, 4 K. & J. 355. (e) Franklyn v. Tuton, 5 Madd. 469. (c) Foster v. Birmingham, Wolver- See Sanderson v. Cockermouth Rail- hampton, and Dudley Railway Co., way Co., 11 Beav. 497 ; Storer v. Great 2 W. R. 378. See Raphael v. Thames "Western Railway Co., 2 Y. & C. C. C. Valley Railway Co., 2 L. R. Cli. Ap. 48 ; Child v. Douglas, Kay, 677. 147. 1 The ground of the jurisdiction of a (d) Warden of Dover Harbor v. court of equity is, that a court of law [664] CH, XXII.] SPECIFIC PERFORMANCE, *536 contract, the coxirt will not permit the vendor to trans- fer the legal estate to * a third person (/). But if the * 536 validity of the contract is open to doubt, the question whether the vendor shall be permitted to transfer the legal estate to a third person, pending a suit for specific performance, hecomes a question of comparative convenience or incon- venience. If, on the one hand, greater inconvenience would arise to the plaintiff from withholding the injunction than to the defendant from granting it, an injunction will be granted (^). If, on the other hand, greater inconvenience would arise to the defendant from granting the injunction than to the plaintiff from withholding it, an injunction will not be granted (A).^ is inadequate to decree a specific per- formance, and can relieve the injured party only by a compensation in dam- ages, which, in many cases, would fall far short of the redress which his situa- tionmight^require. " Whenever, there- fore, the party wants the thing in specie, and he cannot otherwise be fully com- Eensated, courts of equity will grant im a specific performance. They will decree the specific performance of a contract for the sale of lands, not be- cause of the peculiar nature of land, but because a party cannot be adequately compensated in damages. So in re- spect to personal estate : the general rule that courts of equity will not enter- tain jurisdiction for a specific perform- ance of agreements respecting goods, chattels, stocks, choses in action, and other things of a merely personal nature, is limited to cases where a compensa- tion in damages furnishes a complete and satisfactory remedy. Corbin v. Tracy, 34 Conn. 325; 2 Story's Eq. Jur. ss. 717, 718. In Connecticut, a parol contract for the sale of lands will be enforced in equity, where possession has been delivered and held, and es- pecially if the vendee has paid a part or all of the purchase-money, and has made improvements on the estate. Green v. Finin, 35 Conn. 178. A court of equity will also decree the specific performance of a contract for the sale of stock in an incorporated company, but not for the transfer of stock, such as stock in the consolidated funds of England, as one may always obtain that in the market. Duncuft V. Albrecht, 12 Sim. 189 ; Shaw V. Fisher, 2 De G. & S. 11 ; Todd v. Taft, 7 Allen, 371 ; Leach v. Eobes, 11 Gray, 506. There has been the most controversy in the English courts of equity as bearing upon the question of decreeing specific performance of con- tracts, to transfer shares in joint-stock companies, upon the point of the suffi- ciency of the proof. 1 Redfield on Rail- ways, 132, n. Courts of equity will interpose and give relief by injunction or specific performance, when rights grow- ing out of contracts as to personal prop- erty can only be protected otherwise by numerous and expensive law-suits. Penn. Coal Co. o. Del. & H. Canal Co., 31N. Y. 91. '(/) Hadley w. London Bank of Scot- land, 3 D. J. & S. 63. See Spiller v. Spiller, 3 Sw. 556 ; Curtis v. Marquis of Buckingham, 3 V. & B. 168. (g) Hadley v. London Bank of Scot- land, 3 D. J. & S. 63. See Echclifi" v. Baldwin, 16 Ves. 267 ; Shrewsbury and Chester Railway Co. v. Shrewsbury and Birmingham Railway Co., 1 Sim. N. S. 425. (A) Hadlev v. London Bank of Scot- land, 3 D. j' & S. 63. See Wheatley V. Slade, 4 Sim. 126 ; Great "Western Railway Co. «. Birmingham and Ox- ford Junction Railway Co., 2 Ph. 597 ; Turner v. Wright, 4 Beav. 40 ; Shrews- bury and Chester Railway Co. v. Shrewsbury and Birmingham Railway Co., 1 Sim. N. S. 425. 1 And a court of equity will never, it seems, decree specific performance of a contract which is impossible on the part of the defendant, although the inability be the result of defendant's own fault. Nor will specific perform- ance be decreed against one party in favor of another wlio has disregarded his own reciprocal obligations in the matter ; as, e.g., against a grantee of [555] * 637 INJUNCTIONS IN AID OP [CH. XZII. 2. Relief may be given even against parties whose rights are independent of the contract. Thus, where the suit related to an agreement for the sale of a next presentation to a living, the bishop of the diocese was restrained from instituting, or in the case of a lapse taking place pending the suit, from collating to the living any clerk nominated by the plaintiff (z). 3. A vendor has no equity to prevent his purchaser from buying a second estate from some one else pending the trans- action, on the ground that by making such second purchase he may be rendered unable to complete the first (A:). 4. In cases where the court entertains jurisdiction by way of specific performance, it is not the course of the court to permit an action at law in respect of the same subject-matter (?). Upon this principle the court will, as a general rule, after a bill for specific performance has been filed, restrain the pur- chaser from bringing an action at law to recover his * 537 deposit(m). So * also in Duke of Beaufort v. Glyn (m), where the demurrer to a bill for specific performance had been overruled, the court restrained an action at law for the deposit (o). But the court may, under the circumstances of the case, decline to exercise the jurisdiction (p). An injimc- land charged with certain duties in re- There is a settled distinction in equity gard to it, in favor of a grantor who between enforcing specifically and re- has made a re-entry both unlawful and scinding a contract. An agreement fraudulent. Nor where the duties to be may not be entitled to be enforced, fulfilled by the grantee are continuous and yet not be so objectionable as and involve the exercise of skill, per- to call for the exercise of equity juris- sonal labor, and cultivated judgment ; diction to rescind it. Seymour v. De- as, e.g., to deliver marble of certain lancy, 9 Johns. Ch. 222. Nor unless kinds, and in blocks of a kind that the the contract is so certain as to enable court is incapable of determining wheth- the court to arrive at the clear result er they accord with the contract or not. of what is meant by all the terms con- Nor wliere there is a want of mutual- tained in it, will it be specifically en ity in the contact ; as, e.g., where it is forced. B. & M. Railroad v. Babcock, stipulated that one of the parties- may 3 Cusli. 228. abandon the contract at any time on (i) Nicholson v. Knapp, 9 Sim. 326, giving a year's notice. Nor where the (/c) Syers v. Brighton Brewery Co. party, a grantor, has a complete remedy 13 W. K. 220. at law ; as, e.g., in a grant of quarry [l) Prothero v. Phelps, 7 D. M. & G, land, the grantee agreeing to quarry 734. and deliver to the grantor certain sorts (m) Levy v. Lindo, 3 Mer. 82 of marble from it, and the grantor re- Johnson v. Smart, 2 Giff. 156 ; Kell v servingarightof re-entry in case of non- Nokes, 32 L. J. Ch. 785. performance in order to supply him- (n) 3 Sm. & G. 213. self, and having, moreover, a remedy (q) Simmons v. Haseltine, 5 Jur. N. by an ordinary suit at law upon tlie S. 270. contract. Marble Company «. Ripley, (p) Lloyd v. CoUett, 4 Bro. C. C. 469 ; 10 Wallace, U. S. 339. See, also, Wil- Stewart v. AUiston, 1 Mer. 26 ; Tanner lard V. Tayloe, 8 Wallace, U. S. 557. v. Smith, 4 Jur. 310. See Pincke v. [556] CH. XXII.] SPECIFIC PERFORMANCE. * 538 tion to restrain an action at law for tlie deposit may be granted against tlie agents of the parties. In one case an injunction against the purcliaser proceeding at law to recover the deposit from the seller's attorney, who was not a party, was refused with costs (g') ; but in a later case an injunction was granted to restrain the purchaser from proceeding in an action against the auctioneer who was not a party (r.). 6. Upon restraining an action at law for the deposit, the court, as a general rule, exercises the jurisdiction only upon the terms of the deposit being paid into court (s). But a vendor will not be compelled to pay the deposit into court where it is the fault of the purchaser that he retains both the deposit and the estate (i). In Duke of Beaufort v. Glyn (u), where a demurrer by a purchaser to a bill for specific perform- ance had been overruled, the deposit was not ordered to be paid into court. 6. When the interference of the court is sought in aid of specific performance, it is sufiicient for the plaintifi" to show a primd facie case for specific performance to induce the court to interfere by injunction (a;). It is not necessary that it should be clear that the plaintiff will succeed at the hearing ; it is enough if there is ground for supposing that relief may be given (?/). If the bill states a substantial question be- tween the * parties, the title to the injunction may be * 538 good, although the title to the relief prayed for may ultimately fail (3). On this motion the court will not decide delicate points (a), nor allow it to be resisted on points such as delay, which can only be decided at the hearing (6). 7. If it appear to be doubtful whether a tenant will be en- titled to a decree for specific performance, the court will either refuse to grant an injunction to restrain the landlord from Curteis, 4 Bro. C. C. 330 ; Morley v. {x) Powell v. Lloyd, 1 Y. & J. 427. Cook 2 Ha. 106. (y) Hudson v. Bartram, 3 Madd. 440 ; (o) ' Brown u. Frost, E.T. 1818. MSS.; Attwoodt;. Barham, 2 Russ. 186 ; Cros- Sug. V. & P. 229, a. bie 0. Tooke, 1 M. & K. 433. See Mor- (,•) 7J. gan V. Khodes, ib. 435 ; supra, p. 14. (s) Annesley v. Muggridge, 1 Madd. (z) Great Western Railway Co. v. 593 • Levy v. Lindo, 3 Mer. 82 ; Lawson Birmingham and Oxford Junction Rail- V. Paddon, 5 L. T. 170. way Co., 2 Ph 603. , ,, „ ^ ^ ^ It) Wynne v. Griffith, 1 Sim. & St. (a) Price v. Assheton, 1 Y. & C. Bxch. 147. 82. («) 8 Sm. & G. 213. (6) Levy v. Lindo, 3 Mer. 81. [557] * 539 INJUNCTIONS IN AID OP [CH. XXH. pursuing his legal right, or if it restrain him, it will put the tenant upon terms which would secure to the landlord, if it should turn out at the hearing that the tenant was not entitled to specific performance, the whole benefit he could have if the injunction had not been granted (c). In one case an injunc- tion was refused upon the ground of the insolvency of the tenant, and the fact of his having injured the premises {d). But the bankruptcy of the person with whom a landlord has contracted is no defence to a bill for specific performance of an agreement by a person to whom the benefit of the agreement has been assigned, provided the assignee is solvent and in a condition to enter into the usual covenants, and there is no evidence to show that the contract was entered into upon considerations personal to the assignor. In such a case the landlord was restrained from bringing ejectment (e). 8. Upon agreements for the purchase of interests in lands and tenements or other agreements, it often happens that the legal title to the thing agreed for remains in one of the con- tracting parties, while an equitable right passes to the other. In such cases the court will, as a general rule, restrain the party in possession of the legal title from proceeding upon it at law, to disturb the other party in his enjoyment of the thing agreed for, at least until the hearing, unless the party * 539 who has the * equitable right has by his conduct de- prived himself of his equity (/). If the plaintifi" in equity has by tortuous means got into possession of property pending a suil^^ to establish his legal title, the court will not stay proceedings at law against him for recovery of posses- sion (^).i 9. The oourt will sometimes interfere by injunction to sup- port as an agreement in equity an instrument which has no (c) Attwood V. Barham, 2 Euss. 186 ; (/) Shannon v. Bradstreet, 1 Sch. & Sanxter v. Poster, Cr. & Ph. 302 ; Pyke Lef. 53 ; Green v. Green, 2 Mer. 86 ; V. Northwood, 1 Bear. 152; Paris supra, -p. ^1. Chocolate Co. v. Crystal Palace Co., (g) Grafton u. GriflEm, 1 E. & M. 336 ; 3 Sm. & G. 120. See Boardman v. supra, p. 105. Mostyn, 6 Ves. 471; supra, pp. 18,19, ^ A court will not by an €x parte order 94. or process, turn even a wrongdoer out (d) Buokland v. Hall, 8 Ves. 92; but of possession. People v. Simonson, 10 see Boardman v. Mostyn, 6 ib. 471. Mich. 385. (e) Crosbie v. Tooke, 1 M. & K. 431. See Morgan v. Rhodes, ib. 435. [558] CH. XXII.] SPECIFIC PERFORMANCE. * 540 effect at law, and will even under special circumstances give effect to an executory agreement against tlie legal effect of a legal instrument (A). 10. The dismissal of the bill of the vendor for specific per- formance does not, as a general rule, interfere with his right to bring an action for breach of the agreement ; nor is it necessary, though it is usual, to state in the decree that the dismissal is without prejudice to the legal right (i) . But an action at law will be restrained where the bill has been dismissed for want of title (¥), or where the decree in equity proceeded on the ground that the literal performance of the thing for which the action at law is brought had been waived (J). 11. The court will, on decreeing specific performance, grant a perpetual injunction to restrain proceedings at law (jn). Claims for damages arising out of or connected with the decree must be submitted to the court, and should not be prosecuted at law (n) . SECTION III.— INJUNCTIONS AGAINST ACTIONS AT LAW UPON COVENANTS. 1. Injunctions granted where questions connected •with the conduct of the parties are involved in the construction to be put upon the covenants. 1. A court of equity will restrain actions at law upon a covenant, where the matters involve questions con- nected with the * conduct of the parties in relation to the * 540 construction to be put upon the covenants which are clearly unfit for a court of law. The court will not refuse its jurisdiction upon questions of contract, where considerations of conduct are involved, and where in order to arrive at the proper construction of the terms of an instrument more than (h) Brown v. Warner, 14 Ves. 156 ; See Prothero u. Phelps, 7 D. M. & G. DaUy V. Catchlowe, 4 Pr. 147. 722. li) Macnamara v. Arthur, 2 B. & B. (m) Green v. Low, 22 Beav. 625 ; 349 Sug. V. & P. 235. Frank v. Basnett, 2 M. & K. 618 ; Pro- ik) Macnamara v. Arthur, 2 B. & B. there v. Phelpsi 7 D. M. & G. 734. 349. • (n) Prothero v. Phelps, 7 D. M. & G. (i) Eeynolds v. Nelson, 6 Madd. 290. 734; supra, p. 104. [559] * 540 AGAINST ACTIONS AT LAW UPON COVENANTS. [CH. XXII. proceedings at law will be necessary (o). The court accord- ingly under very peculiar circumstances involving the conduct of parties restrained by perpetual injunction an action for rent and insurance (p). (o) Leather Cloth Co. v. Bressey, 3 Giff. 474. (p) lb. [560] CH. XXIII.] AGAINST INCORPORATED COMPANIES. * 541 * CHAPTER XXIII. * 541 INJUNCTIONS AGAINST INCORPORATED AND OTHER COMPANIES. 1. Injunctions granted to restrain illegal acts of incorporated companies, or violation of duty between directors and shareholders of. 2. Same principles govern the action of the court as in other cases. 3. In what respect acts may be illegal. 4. Companies bound to proceed according to the statute under which they are formed. 5. Acts illegal as against the public. 6. By whom suit should be instituted in such cases. 7. Case where remedy is by mandamus. 8. If an act has been declared illegal by competent authority court will not inquire on. what grounds. 9. Case of public inconvenience must be made out. 10. Acts illegal as against private persons. 11. Injunctions usually granted at suit of private persons are in suits of trespass or nuisance. 12. Case of Bostock v. North Staffordshire Railway Co. 13. Acts illegal as against individual members. Injunctions to restrain actions for calls.. 14. Eight of a member of a body corporate to execute a judgment against his co-share- holders. 15. Rights in equity of members of a company inter se. 16 & 17. Who may sue. 18 & 19. The interest of a plaintiff suing for himself and others must be identical withs that of those whom he professes to represent. , 20. Pleading. 21. "Who should be made defendants. 22 & 23. Effect of delay and acquiescence. 24. Principles governing in case of injunctions at suit of shareholder on behalf of him- self and all Others. 25-31. Cases in which such injunctions have been issued. 32. Where a transaction is ultra vires the court will not take into consideration the ■ possibility of further powers being obtained. 33. Contracts not within the proper purposes of the company are void at law. 34r-42. Acts which are ultra vires. 43. Agreement legal in part, but illegal in its purpose. 44. Agreement partly legal, partly illegal. 45. How far agreements by promoters of company before incorporation are binding upon^ the corporation. 46-49. Corporations may ratify and adopt such agreements. 50. Court will not aid either party to an illegal agreement. 61 & 52. Application of the funds of a company to a purpose legitimately connected with the objects of the company is not improper. 53. Court will not interfere in matters which are properly a subject for internal regula- tion. 36 [561] * 542 INJUNCTIONS AGAINST [CH. XXIII. 54. In particular cases court may interfere in matters which are properly a subject for internal regulation. 55. Extra-judicial remedies should be often resorted to, even although act complained of may be idtra vires. 56. Court may control factious minority. 57. Limit of powers of a general meeting. 58. Jurisdiction of the court over associations, societies, &c. 59. Other relief given by court. 60. Costs. 1. Courts of equity will, on a proper case being made out, restrain companies, whether incorporated by statute or consti- tuted under deeds of settlement from doing illegal acts, or violating the duties which attach in equity to the relation of shareholders and directors, inter se. 2. The principles on which the court interferes in restrain- ing a company from doing illegal acts are the same as those on which it interferes in other cases. If the right at law is clear and the breach is clear, and serious injury is likely to arise from the breach, the court will interfere at once and protect the right by injunction. But if the right at law is not clear or the breach is doubtful, the court, in determining whether or not it shall interfere by injunction, is guided by the balance of -convenience and inconvenience likely to arise to the parties from granting or withholding the injunction (o). 3. Acts on the part of a company incorporated by statute, jnay be illegal, either as against the public, or as against third parties, or as against individual members of the company, or as against the general body of the members, or they may be in violation of the duties which bind in equity the .directors and shareholders, inter se (6). 4. Rights arising under acts of Parliament are legal rights and are dealt with by the court according to ordinary rules and principles (c). Companies incorporated by statute * 542 are bound * to confine themselves within the limits of the jurisdiction, which has been intrusted to them by ■the legislature, and to proceed in the mode which the legisla- (a) I"ielden v. Lancashire and York- (c) Weale v. West Middlesex Water- shire Railway Co., 2 De G. & S. 531 ; works Co., 1 J. & W. 371 ; Att.-Gen. Bullock V. Chapman, ih. 211 ; Norman v. Corporation of Liverpool, 1 M. & C. V. Mitchell, 5 D. M. & G. 678; supra,-p. 171 ; Att.-Gen. v. Borough of Binning- ;208-210. ham, 4 K. & J. 528. (6) Browne v. Monmouthshire Canal Co., 13 Beav. 45. [56,2] CH. XXIII.] INCORPORATED AND OTHER COMPANIES. * 542 ture has pointed out. If a company goes beyond the line of its authority, and violates the rights of others, it becomes amenable to the jurisdiction of the court by injunction (d).'^ 5. Companies incorporated for a special purpose exist for those purposes only for which they have been incorporated, and for no other purpose whatever (e). The agency of the company, the course of action, and the sphere of action of the company, are limited entirely to that which is defined by the legislature. What it is empowered to do it has a right to do, and what it is not empowered to do it must be considered as having no right to do (/). Courts of equity will restrain a company, which has been incorporated for a special purpose, from going beyond or exceeding the scope of the purposes for which it has been incorporated. Thus, a railway company was restrained at the suit of the Attorney-General on the rela- tion of a stranger to the company from carrying on the business of coal merchants (g}. "It is," said Wood, V. C. (A), "a principle of public policy that where Parliament has authorized a company to raise a large capital for a specific purpose, the privilege confers no right upon the company to employ their capital in competition with the general public upon specula- tions of a different kind" (i). Although the act may contain no prohibition in express terms against the company engaging in any business except to construct and maintain the railway, there is in every such act an implied contract (A). 6. The suit should be instituted by the Attorney-General. [d] Frewin v. Lewis, 4 M. & C 254 ; St. 378. An injunction is the proper Mayor of Lirerpool v. Chorley Water- remedy to secure to a party the enjoy- works Co., 2 D. M. & G. 860 ; supra, p. 296. ment of a statute privilege of whidi he (e) Rochdale Canal Co. v. Radoliife, is in the actual possession, and when 18 Q. B. 287 ; National Manure Co. v. his le^al title is not put in doubt . Liv- Donald, 4 H. cS; N. 8. ingston v. Van Ingen, 9 Johns. 506 ; {/) Stockport District Waterworks Croton Turnpike Co. v. Ryder, 1 Johns. Co. V. Mayor, &c., of Manchester, 9 Ch. 615 ; Boston and Lowell Railroad Jur. N. S. 266. v. Salem and Lowell Railroad Co., 2 (g) Att.-Gen. v. Great Northern Rail- Gray, 1 ; Del. and Rar. Canal et al. v. way Co., 1 Dr. & Sm. 154. Rar. and Del. Bay Railway Co., 1 C. E. (A) lb. Green, (N.J.) 378. But an injunction (i) Hare v. London and North West- wiU not lie to restrain officers from em Railway Co., 2 J. & H. 109. entering upon official duties under an (k) Att.-Gen. v. Great Northern Rail- illegal appointment. The remedy is at way Co., 1 Dr. & Sm. 154. law by quo warranto, and to be invoked 1 Delaware and Rar. Canal et al. v. after entry into or exercise of authority Rar. and Del. Bay Railway Co., 1 C. E. under their appointment. UpdegrafF c. Green, (N.J.) 378, and cases cited; Crans, 47 Penn. St. 103. Sandford u. Railroad Co., 24 Penn. [663] 543 INJUNCTIONS AGAINST [CH. XXIII. A rival company is not qualified to represent the rights and interests of the public (I}. Whether the suit can be * 543 maintained * by an individual, a stranger to the com- pany, appears to be doubtful (m). To ,support an infor- mation, no substantial damage or definite injury to the public need be shown. It is enough that the company has not strictly followed, or is about to transgress the powers which have been vested in it by the legislature (n) ; but the colirt will not, as a general rule, entertain jurisdiction, unless it is clear that the interest of the public calls for its interference (o).^ 7. If a railway company, authorized by special act to con- struct a main line with a branch, complete the one and take no steps to complete the other, the remedy is by mandamus, and not by injunction (p). 8. If an act has been declared to be illegal by a competent authority, the court will interfere without considering the grounds on which the act has been declared illegal (g). A railway company accordingly has been restrained from opening their line without the sanction of the Board of Trade (r). ' "But courts of equity are far more ready, upon a bill properly framed, to interpose to enforce a public duty of a railway company, than a mere private duty." 2 Eedfield on Railways, 325. In Buck Mountain Coal Co. v. Lehigh Coal and Nav. Co., 50 Penn. St. 91, it was held, that a bill in equity to enforce the performance of a public duty by a corporation cannot be maintained by a private party, in the absence of any special right or authority. In this case where the slackwater navigation of the Lehigh Coal and Navigation Company, with dams, locks, and other appliances, were damaged, broken, and swept away by a flood, it was held that a bill in equity could not be maintained by an- other company to enjoin the said cor- poration from neglecting to repair and put in operation their navigation ; and that the complainants had no right to a decree compensating them for damages sustained in consequence of the non-re- pair. The court intimate, however, that a bill might probably be maintained in behalf of the commonwealth by the Attorney-General. Equity will not in- terfere by injunction to redress pubhc nuisances, when the object sought can be obtained by ordinary legal methods. Jersey v. Hudson, 2 Beasley, 420. [1) Stockport "Waterworks Co. v. Mayor, &o., of Manchester, 9 Jur. N. S. 266. (m) See Att.-Gen. v. Great Northern Eailway Co., 1 Dr. & Sm. 159 ; Hare«. London and North Western Railway Co., 2 J. & H. 109. {n) Att.-Gen. v. Oxford, Worcester, and Wolverhampton Eailway Co., 2 W. R. 330; Mayor of Liverpool u. Chorley Waterworks Co., 2 D. M. & G. 860; Ware v. Regent's Canal Co., 3 D. & J. 228 ; Hare v. London and North West- ern Railway Co., 2 J. & H. 111. (o) Att.-Gen. u. Birmingham, &o., Derby Railway Co., 2 Ra. Ca. 125; Att.-Gen. v. Birmingham and Oxford Railway Co., 15 Jur. 1024, 3 Mac. & G. 453 ; Att.-Gen. v. Oxford, Worcester, and Wolverhanr.pton Eailway Co., 2 W. E. 330. ip) Att.-Gen. v. Birmingham and Ox- ford Junction Railway Co., 4 De G. & S. 490. [q) Att.-Gen. v. Oxford, Worcester, and Wolverhampton Railway Co., 2 W. R. 330. (r) lb. See, as to sanction of Board of Trade, Pearce v. Wycombe Railway Co., 1 Drew. 244 ; Att.-Gen. w. Great. Northern Railway Co., 1 Dr. & Sm. 154. [564] CH. XXIII.] INCOPPOBATED AND OTHER COMPANIES. * 544 9. Courts of equity will not restrain a railway company from making certain charges (s),or from charging the plaintiff for the carriage of his goods otherwise than equally with other persons (i)- But by the Railway Traffic and Canal Act, 1854, 17 & 18 Vict. c. 34, ss. 2, 3, power is given to the Court of Common Pleas to grant an injunction against railway and canal companies, who, by their traffic arrangements, give any undue * or unreasonable preference to, or * 544 advantage to, or in favor of any particular person or company in any particular description of traffic, in any respect whatever (it). In Barrett v. Great Northern Railway Co. (a;), it was held that the court will not interfere, unless a case of public inconvenience be made out (y).^ 10. A private person who applies for an injunction to re- strain a company from violating the provisions of an act of Parliament, must be able to satisfy the court that he will suffer substantial injury from the act complained of (a). As a gen- eral principle, where the statute prohibits the doing of a particular act, affecting the public, no person has a right of action against another merely because he has done the pro- hibited act. It is incumbent on the party complaining to allege and prove that the doing of the act prohibited has caused him some special damage, some peculiar injury beyond that ' which he may be supposed to sustain in common with the rest of the Queen's subjects, by an infringement of the law. But when the act prohibited is obviously prohibited for the pro- (s) Pickford v. Grand Junction Rail- Waterworks Co., 2 D. M. & G. 860 ; way Co., 3 Ea. Ca. 538, 558. Cromford and High Peak Railway Co. It) Sutton V. South Eastern Railway v. Stockport, cSbc, Railway Co., 1 D. & Co., 1 L. R. Exch. 32. J. 326 ; Wintle v. Bristol and South (u) Gartoni'. Bristol and Exeter Rail- Wales Railway Co., 10 W. R. 210; way Co., 6 C. B. N. S. 639 ; Ransome Stockport District Waterworks Co. v. V. Eastern Counties Railway Co., 8 C. Mayor, &c., of Manchester, 9 Jur. N. S. B. N. S. 709. 266. Ix) 1 C. B. N. S. 423. 1 Until the provisions of a railroad (y) Comp. Att.-Gen. v. Great North- charter in relation to compensation for em Railway Co., 1 Dr. & Sm. 154. See property taken are complied with, the Palmer v. London and South Western company may be restrained by injunc- Railway Co., 1 L. R. C. P. 588, as to the tion from taking the property. People principles in which the jurisdiction under v. Law, 34 Barb. 494. See also, to the act will be exercised. same effect, Anderson v. Commissioners, {z} Holyoake v. Shrewsbury and 12 Ohio St. 635; Horton v. Hoyt, 11 Birmingham Railway Co., 5 Ra. Ca. Iowa, 496. 421; Mayor of Liverpool v. Chorley [565] * 545 INJUNCTIONS AGAINST [CH. XXIII. tection of a particular party, theu it is not necessary to allege special damage (a). 11. The cases in which the aid of a court' of equity is sought for the purpose of restraining a company from infringing the legal rights of private ' persons, are generally either cases of trespass or nuisance (6) ; but there are other cases in which the aid of the courts is sought which cannot properly be ar- ranged under either of those heads. *545 12. *In Bostock v. North Staffordshire Railway Co. (c), the right of a land-owner to insist that a com- pany incorporated by statute shall be restricted in their exer- cise of the ownership of land, taken from him under their compulsory powers, by the terms of the Act of Incorporation, was maintained. The plaintiff was the representative of the owner, and was the actual occupier of a mansion-house and estate, part of which had been acquired by a company of per- sons, who were by act of Parliament incorporated and author- ized to make a canal and form a reservoir, in order to supply their canal with water, and " for no other purpose whatsoever." Parker, Y. C, to whom an application had been made for an injunction to restrain the defendants, in whom the canal com- pany had vested, from making use of the reservoir to the injury of the plaintiff, by letting out pleasure-boats upon it, &c., &c. ((^), had directed a case for the opinion of a court of law • upon two questions : — first, whether the defendants could lawfully let out boats for hire on the lake and reservoir ; and secondly, whether the company could lawfully use the lake or reservoir for any other purpose than for supplying the canal with water. A majority of the judges of the Queen's Bench answered the questions in the negative, and held that the com- pany under the act had no right against the representatives of those from whom the lands were originally purchased to use the lands in any other way than for the purposes of the navi- gation, if such use was prejudicial to those persons. Erie, 0. J., differed from the majority of the court, holding that the creation of a corporation for a specific purpose, gave it all the (a) 1 Exch. 877, pa- Lord Wensley- (c) 4 E. & B. 798. dale. (d) lb.; 5 De G. & S. 584. (6) See svpra, pp. 294, 341-345. [566] CH. XXIII.] INCORPORATED AND OTHER COMPANIES. * 546 rights incident to a corporation, with a superadded duty to fulfil tliat specific purpose, but without restrictions other than those expressly or by necessary implication imposed by the legislature, and that there being nothing in the use of pleasure- boats inconsistent with the duty of keeping up the navigation, there was nothing to take away from the defendant's right to use them, that right being incident at common law to their tenancy in fee-simple of the land covered with water. Stuart, V. C, upon the authority of the majority of the court, restrained the company from using *the reservoir to *5'16 the injury of the plaintiff, or for any other purposes than those authorized by the act. " The right of ownership," he said, " conferred on public companies, must be restricted and qualified by the terms of the legislative act. The subscriber, whose money is given to compensate the land-owner, has a right to confine the exercise of the ownership to the specified purpose. The land-owner has also an equal right" (e). A case somewhat similar came before the court in Warden of Dover Harbor v. South Eastern Eailway Co. (/). There land had been sold to the company, and there was a provision in the act " that the whole of the land so sold should be appropriated to and solely for the purposes of the railway and other build- ings connected therewith." The court held it was not a breach on the part of the company to erect a building used chiefly for passengers on the railway, with a room appropriated as a cus- tom-house to which persons not travelling by the railway occa- sionally resorted, but had some doubts as to whether the letting out of bedrooms in the building might not be a violation of the act. However, in Astley v. Shef&eld and Lincolnshire Railway Co. (^), where a railway company had taken lands of the plaintiff under their compulsory powers for the purpose of making a railway, the court refused upon the abandonment of the railway to restrain the company from a user of the land not shown to be productive of irreparable injury to the plaintiff (A). 13. The acts of a company may be illegal as against an (e) lb. ; 3 Sm. & G. 283. See Mayor (/) 9 Ha. 489. of Norwich v. Norfolk KaUway Co., 4 \g) 2 D. & J. 463. E. &B. 414 ; Hill v. Tupper, 2 H. & C. (A) See East and West India Docks, 121. &c., Railway Co. v. Dawes, 11 Ha. 363. [567] *547 INJUNCTIONS AGAINST [CH. ZXIII. individual member of the company. Tiie court will, upon a proper case being made out, interfere by injunction in aid of the legal right. Injunctions have accordingly been granted to restrain the illegal forfeiture of shares (i) ; the insertion and continuance of a man's name on the register of share- * 547 holders (Ic) ; the illegal suspension * of a shareholder from his rights (J) ; and the permitting a man to exe- cute the deed of settlement and the registering shares (m). If an equitable case can be made to appear, a company will be restrained by injunction from making calls upon one of its members (ji). The court will not, however, interfere by in- junction to restrain an action at law for calls, if the plaintiff in equity has a good defence at law (o). 14. A member of a body corporate may be a creditor of, or debtor to, the company, just as if he were not a member. He may not only sue the company at law, but, having obtained judgment against it, he may execute that judgment against his co-shareholders, if they were liable to be proceeded against in that way by ordinary cfeditors. A court of equity will not interfere at the instance of the shareholders proceeded against, and stay execution against them, either on the ground that the plaintiff is himself a member of the company, and therefore bound to contribute to his own payment, or upon the ground that the rights of the parties cannot be ascertained without taking the accounts of the company (p). The court will not, however, permit an unfair or inequitable use to be made by a company of a creditor's name in an action against a share- . holder (gf). If judgment has been obtained through concert {i) Naylor v. South Devon Railway (n) Taft v. Harrison, 10 Ha. 489; Co., 1 De G. & S. 32 ; Watson v. Eales, Sraitli v. Reese River Co., 2 L. R. Eq. 23Beav. 300; Norman «.Miteliell, 5 D. 264; eomp. Norman w. Mitchell, 5 D. M. & G. 648. See Barton's case, 4 D. M. & G. 648. See supra, pp. 15, 16, 33. & J. 46. See, also, Harris v. North (o) Mangles v. Grand Dock Co., 10 Devon Railway Co., 20 Beav. 384 ; Sim. 540 ; Macbride u. Lindsay, 9 Ha. Playfair v. Birmingham, Bristol, &o., 574 ; supra, pp. 15, 32. See Orn.amental, Eailway Co., 1 Ra. Ca. 640. &c., Co. v. Brown, 2 H. & C. 63. (h) Taylor v. Hughes, 2 J. & L. 24 ; (p) Rheam v. Smith, 2Ph. 726 ; Ham- Bargate v. Shortridge, 5 H. L. 297. See mondj;. Ward, 3 Drew. 103; Hardinge Bullock V. Chapman, 2 De G. & S. 212 ; v. Webster, 1 Dr. & Sm. 101 ; Liudley comp. Taft v. Harrison, 10 Ha. 489. on Partnership, 719. (I) Adley v Whitstable Co., 17 Ves. (q) Taylor v. Hughes, 2 J. &D,24; 315, 19 Ves. 304. Lewis v. BilUng, 4 Ra. Ca. 414 ; supra, (m) Fyfe v. Swaby, 16 Jur. 49 ; Nor- p. 49. man v. Mitchell, 6 D. M. & G. 648. [568] CH. XXm.J INCORPORATED AND OTHER COMPANIES. * 548 01' collusion between the directors of the company and the creditor with the view of being used against certain share- holders or for the purpose of enforcing contributions from them (r), or if the creditor proceeds after judgment at the instigation of the directors * against certain share- * 548 holders pointed out by the directors (s),the proceedings at law will be restrained (i) . 15. Companies formed for a special purpose, and whether constituted under deed of settlement or incorporated by act of Parliament, by charter, letters-patent or registration, are looked upon in equity as analogous to a partnership, and the members of the company in their individual capacity are con- sidered to have rights inter se, analogous to those of partners inter se (u). The shareholders may by general consent depart from the contract which they have entered into with each other and enter into a new contract, but they cannot do so without the consent of every individual member comprising the com- pany (x). Any single shareholder has a right to say that the business of the company shall be carried on accoi'ding to the agreement which united the shareholders together at the time he embarked his moneys in the undertaking, and may require the company to abstain from applying the funds of the company to any other purpose than the proper purposes of the concern, in which he was induced to engage («/). Though every otlier shareholder may be opposed to him, any single shareholder has a right to institute a suit on behalf of himself and all otlier shareholders who have a common interest with himself to restrain the application of the common funds (r) Taylor v. Hughes, 2 .J. & L. 24 ; 236 ; Bennett's case, 5 D. M. & G. 297 ; Fernihough v. Leader, 4 Ra. Ca. 373, Ernest v. NichoUs, 6 H. L. 401. See, as 15 L. J. Ch. 458 ; Horn v. Kilkenny, to companies formed on the cost-book &e.. Railway Co., 1 K. cSc J. 899 ; supra, principle, Thomas v. Hobler, 8 Jur. N. p. 49. S. 125. (s) Bargate v. Shortridge, 5 H. L. (y) Natusch v. Irving, Gow on Part. 247 ; supra, p. 49. App. 398, 3d edition ; Const v. Harris, (() See Lund I-. Blanshard, 4 Ha. 290 ; T. & R. 496; Simpson w. Denison, 10 Woodhams «. Anglo-Australian, &c.. Ha. 51 ; Simpson v. Westminster Palace Co., 2 D. J. & S. 162. See Gillespie v. Hotel Co., 8 H. L. 717 ; Maunsell v. Barnwall, 10 L. T. 263, as to case in a Midland Great Western Railway Co. of club. Ireland, 1 H. & M. 130 ; Pilder v. Lon- (u) Simpson v. Denison, 10 Ha. 51 ; don, Brighton, &c.. Railway Co., ib. Bostock V. North Staffordshire Railway 489 ; Macdougall v. Jersey Imperial Co., 4 E. & B. 814, per Erie, C. J. ; Hotel Co., 2 H. c& M. 528 ; Featherston- Fraser v. Whalley, 2 H. cSfc M. 10, 28. haugh v. Lee Moor Porcelain Clay Co., (x) Ex parte Morgan, 1 Mac. & G. 1 L. R. Eq. 318. [569] * 549 INJUNCTIONS AGAINST [CH. XXIII. of the company to any other purpose than the proper purposes of the concern, and a court of equity will interpose on * 549 his behalf by injunction (2). The amount of * interest of the complaining shareholder will not be taken into consideration (a). 16. A holder of scrip certificates may maintain the suit (b). So also may the shareholder of an old company which was afterwards incorporated with a new company sue in respect of the funds of the new company, although he has not complied with all the formalities required to make him a shareholder of the new company (c). A railway company which has taken shares in another railway company (li), or is the equitable owner of shares in another railway company, may also maintain the suit, the trustees in whom the shares are vested being made in the latter case defendants (e). A shareholder may in respect of any matter in which he has a common interest with the other members of the society to which he belongs, instead of suing on behalf of himself and all others similarly inter- ested, sue the directors and the company, as a body, making the shareholders parties and pray for relief common to all (/). 17. A shareholder in a rival company may maintain the suit (^), provided the suit is a bond fide one, instituted honestly, sincerely, and really for the benefit and common interest of the shareholders whom he claims to represent (Ji). The fact that the suit may not have been instituted from the best of motives is not sufficient to debar him from suing ; but (z) Mozley v. Alston, 1 Ph. 798 ; (e) Great "Western Railway Co. v. Beman v. Ruffofd, 1 Sim. N. S. bU ; Rushout, 5 De G. & S. 306. M'Donnell v. Grand Canal Co., 3 Ir. Ch. (/) Fawcett v. Laurie, 1 Dr. & Sm. 578 ; Macbride v. Lindsay, 9 Ha. 585 ; 192. Carlisle v. South Eastern Railway Co., (g) Colman v. Eastern Counties Rail- 1 Mac. & G. 699 ; Burt w. British Nation way Co., 10 Beav. 1; Salomons v. Life Assurance Association, 4 D. & J. Laing, 12 Beav. 358 ; Munt v. Shrews- 174 ; Fawcett v. Laurie, 1 Dr. & Sm. bury and Chester Railway Co., 13 192 ; Hare v. London and North West- Beav. 1 ; Winch v. Birkenhead, Lanoa- ern Railway Co., 2 J. & H. 80; Simp- shire, &c. Railway Co., 5 De G. & S. son V. Westminster Palace Hotel Co., 8 581 ; Hare v. London and North West- H. L. 717. ern Railway Co., 2 J. & H. 80 ; Att.- (a) M'Donnell y. Grand Canal Co., Gen. «. Great Northern Railway Co., 1 3 Ir. Ch. 578. Dr. & Sm. 159. (b) Bagshaw v. Eastern Union Rail- [h) Forrest v. Manchester, Sheffield, way Co., 2 Mac. & G. 389. and Lincolnshire Railway Co., 7 Jur. (c) Spackmanv.Lattimore, 3GifF. 16. N. S. 887; Thomas v. Hobler, 8 Jur. a . i) Great Western Railway Co. v. Ox- N. S. 125 ; Eraser v. Whalley, 2 H. & ford, Worcester, and Wolverhampton M. 10. Railway Co., 3 D. M. & G. 341. [570] CH. 2XIII. j INCORPORATED AND OTHER COMPANIES. * 550 if he appears to be the mere puppet and nomitiee of the rival company, and the suit * appears to be instituted in * 550 reality on behalf of the rival company, it is illusory, and relief will not be given (i}. 18. A shareholder cannot, however, institute a suit on behalf of himself and all other shareholders unless for a pur- pose in which his interest is identical in a judicial point of view with that of those whom he professes to represent (A;). If he has a distinct and separate interest from that of the rest of the shareholders, he cannot sue on behalf of himself and them (Z). Thus, although the court may in a suit so framed restrain the directors of a company from declaring a future dividend, it cannot upon an application in this form restrain the payment of a dividend ah-eady declared, because, as soon as a dividend has been declared, each shareholder acquires a separate right to his share of the dividend (m). Even though the dividend may have been improperly declared, each individ- ual shareholder is entitled to sue for as much of the dividend as he may be entitled to (w). A man who by his conduct has personally precluded himself from suing cannot maintain the suit (o) : nor should a suit be instituted by a shareholder on behalf of himself and all other shareholders, complaining of transactions in which some of them have acquiesced (p). A purchaser of shares is bound by the acquiescence of his vendor (g). (i) Forrest v. Manchester, Sheffield, Syers v. Brighton Brewery Co., 13 W. and Lincolnshire Railway Co., 7 Jur. R. 220. N. S. 887 ; Hattersley v. Lord Shel- (m) Carlisle v. South Eastern Eail- burne, 31 L. J. Ch. 873 ; Filder v. Lon- way Co., 1 Mac. & G. 689. don, Brighton, &c.. Railway Co., 1 H. (n) Fawcett v. Laurie, 1 Dr. & Sm. & M. 489. See Rogers v. Oxford, 199. Worcester, and Wolverhampton Rail- (o) Burt v. British Nation Life Assur- way Co., 2 D. & J. 674, per Knight ance Association, 4 D. & J. 158. See Bruce, L. J. ; Ffooks v. South Western Sharp v. Taylor, 2 Ph. 801 ; Sheppard Railway Co., 1 Sm. & G. 166, per Stuart, v. Oxenford, 1 K. & J. 491, 3 W. R. 397. v. C. ; Hare v. London and North (p) Kent v. Jackson, 14 Beav. 367, 2 Western Railway Co., 2 J. & H. 119, D. M. & G. 49 ; Ffooks v. South West- per Wood, V. C. em Railway Co., 1 Sm. & G. 142 ; (k) Mozley v. Alston, 1 Ph. 790 ; Sturge v. Eastern Union Railway Co., Clay V. Ruffbrd, 8 Ha. 281 ; Williams 7 D. M. & G. 180, per Turner, L. J. ; u. Salmon, 2 K. &J. 463. SeeApperly Stupart v. Arrowsraith, 3 Sm. & G. 176. V. Page, 1 Ph. 779 ; Sharp v. Day, ib. But see White v. Carmarthen, &c., 771 ; Macbride v. Lindsay, 9 Ha. 574; Railway Co., 1 H. & M. 786. Doyle K.Muntz,4Ra, 422, 10 Jur. 914; (g) Ffooks v. South Western Rail- Moseley v. Cressey's Co., 1 L. R. Eg. way Co., 1 Sm. & G. 142. See, how- 405. ever, now, 16 & 16 Vict. c. 86, s. 49 ; (I) Macbride a. Lindsay, 9 Ha. 674 ; Clements v. Bowes, 1 Drew. 684. [571] * 551 INJUNCTIONS AGAINST [CH. XXIII. * 551 19. * Persons on whom separate and distinct frauds have been committed cannot join in suing together with respect to those frauds (r) ; but if several persons have been induced by misrepresentation, by which all were alike deceived, to concur in advancing moneys for a common purpose, one or more may sue on behalf of himself or themselves and all the others (a).^ 20. If a man sues on behalf of himself and all other share- holders, he must confine his prayer to such relief as is really for the benefit of the. shareholders whom he represents. He cannot pray alternative relief, one branch of which is a benefit to himself but antagonistic to the interests of the other share- holders (i). 21. The directors should be made parties to a bill to restrain the doing of an unlawful act by the company (m). If the object of the bill is to restrain the carrying out of an agree- ment with other companies, all the companies are necessary parties (x}. A company may, under the circumstances of the case, not be a necessary party to a suit to impeach the acts of the directors (2/). 22. A sliareholder who seeks to restrain .the application of the funds of a company to purposes unconnected with the proper business of the company or corporation must use due diligence in making the application. Laches in instituting the suit may prove fatal to the application. Shareholders cannot lie by, sanctioning or by their silence at least acquiescing in an arrangement which is ultra vires of the company to which they belong, watching the result : if it be favorable and profitable to themselves to abide by it and insist on its validity ; but if it (r) Jones v. Garcia del Rio, T. & R. Maunsell v. Midland Great Western 297 ; Crosskey v. Bank of Wales, 4 Railway Co. of Ireland, 1 H. & M. Giff. 314. 130. (s) Beeching v. Lloyd, 3 Drew. 227 ; (y) Gregory v. Patchett, 38 Beav. Macbride v. Lindsay, 9 Ha. 574 ; Hal- 595. lows V. Fernie, 3 L. R. Eq. 520. ' Persons who are citizens, voters, {t) Thomas v. Hobler, 8 Jur. N. S. and tax-payers of a county may be par- 125. ties plaintiff in an action to restrain by (u) Ferguson «. Wilson, 2 L. R. Ch. an injunction the expenditures of county Ap. 90, per Lord Cairns, L. J. moneys by the county judge, in the (z) Hare w. London and North West- erection of a court-house at a place em Railway Co., 1 J. & H. 253. See whiehisnotthecounty seatof acouut}'. 2 J. & H. 80 ; Parker v. River Dun Rice v. Smith, 9 Iowa, 570. See also Navigation Co., 1 De G. & S. 192 ; Smith v. Myers, 15 Cal. 33. [572] CH. XXIII.] INCORPORATED AND OTHER COMPANIES. * 552 prove unfavorable and disastrous, then to institute proceedings to set it aside (2). In Graham v. Birkenhead, Lanca- shire, and Cheshire * Junction Railway Co. (a), the suit *552 was instituted by a shareholder to restrain the comple- tion of part only of the company's works. There had been several suits for the same purpose, instituted by other share- holders, but for reasons to which it is not material to advert these suits were never effectively prosecuted. It had been known for a considerable time that it was not intended by the directors to complete the company's works, as originally con- templated, and that in fact there were not sufficient funds for that purpose. It was also well known that the directors had for some time completed part of the works. The court refused to interfere on the ground of the acquiescence of the plaintiff and the other shareholders in the acts complained of for eigh- teen months (6). So also in Pfooks v. South Western Railway Co. (c), the court refused to restrain a railway company from completing works after the parliamentary powers had expired, which had been acquiesced in for twelve months before those powers had expired (d). So also where shareholders com- plained of acts ultra vires which they had acquiesced in for six years, relief was refused (e). 23. Whether the court should, in cases where there has been acquiescence, interfere at the suit of a shareholder to restrain the application of the funds of the company in a manner not authorized by the Act of Incorporation or the deed of settle- ment, or should decline to interfere on the ground of acquies- cence is often a question of much delicacy. In determining the question the court looks to the peculiar circumstances of each case, and will, as a general rule, adopt that course which is most for the advantage of the whole body of the share- (s) Gregory v. Patchett, 33 Beav. 498 ; Lane's case, ib. 513 ; Stewart's 595, 602. See also, as to acquiescence case, 1 L. E. Ch. Ap. 513. by shareholders in irregular transac- (a) 2 Mao. & G. 159. tions, "Walford v. Adie, 5 Ha. 112; (5) See Gray v. Chaplin, 2 Russ. Richmond's case, 4 K. & J. 305 ; Re 126 ; Kent v. Jackson, 14 Beav. 367, 2 Magdalena Steam Navigation Co., John. D. M. & G. 49; Ellis v. Henderson, 3 690 ; Re Norwich Yarn Co., 22 Beav. Bell. Sc. App. 1 ; Stupart v. Arrow- 165; Burt v. British Nation LifeAssur- smith, 3 Sm. & G. 176. ance Association, 4 D. & J. 158 ; Bro- (c) 1 Sm. & G. 142. therhood's case, 31 Beav. 365, 8 Jur. (d) See Hare v. London and North N. S . 926 ; Grady's case, 1 D. J. & S. Western Railway Co., 2 J. & H. 80. (e) Gregory v. Patchett, 33 Beav. 595. [573] * 553 INJUNCTIONS AGAINST [CH. XXIII. *563 holders (/). Shareholders *in a company will not be held debarred from relief on the ground of acquiescence, if being aware that an illegal agreement has been entered into, they delay taking proceedings until an attempt is made to carry it out (^) . So also where parties seek to restrain the directors of a railway company from devoting part of the funds of the company towards paying the expenses of an application to Parliament, it is no answer to say they are disentitled by delay in not making the application sooner. The members of the company have a right to suppose that a proper application of the funds will be made. Till the money is in fact being wrong- fully , applied no grounds exist for the interference of the court (Ji). An application by directors to Parliament does not necessarily give notice of an intention to apply the funds of the company improperly (i). In a case where the guaranteed shareholders in a railway company did not assert their rights in 1854, when a construction adverse to them was put forward by the directors of the company, they were held not bound on the ground of acquiescence from filing a bill in 1859 to restrain the directors from paying the other shareholders, till the arrears of the guaranteed shares had been paid, but they were held precluded by their acquiescence from claiming the dividends that had been wrongly paid to the other shareholders^ between 1856 and the time of filing the bill (Jc). 24. In interfei'ing by injunction at the suit of a shareholder suing on behalf of himself and all other members of the com- pany to restrain a company, formed for a special purpose, from doing acts or entering into engagements, which are not within the proper purposes for which it was established, the court not only enforces the equitable relations which subsist between the members inter se, but acts in aid of the legal right. (/) Grahata V. Birkenhead, Lanca- Co., j6. 441 ; White k. Carmarthen, &g., shire, and Cheshire Junction Railway Eailway Co., 1 H. & M. 786. Co., 2 Mac. & G. 160 ; Cooper v. Earl {g) Charlton v. Newcastle and Car- Powis, 3 De G. & S. 688 ; Hodgson v. lisle Kailway Co., 5 Jur. N. S. 1100. Earl of I'owis, 1 D. M. & G. 6 ; Webb (A) Att.-Gen. v. Eastlake, 11 Ha. 22. V. Direct London and Portsmouth Rail- See White v. Carmarthen, &c., Railway way Co., 1 D. M. & G. 521 ; Stuart v. Co., 1 H. & M. 786. London and North Western Railway {i) Great Western Railway Co. v. Co., *. 721 ; Ffooks v. London and Rushout, 5 De G. & S. 280 ; Green v. South Western Railway Co., 1 Sm. & Nixon, 23 Beav. 530. G. 161. See iJe Era Assurance Co., 2 (k) Matthews «. Great Northern Rail- J. & H. 400 ; Re Phoenix Life Assurance way Co., 5 Jur. N. S. 284. [574] CH. SXIII.] INCORPORATED AND OTHER COMPANIES. * 555 The * suit by a shareholder to restrain a company from * 554 doing illegal acts or entering into engagements which are beyond the proper purposes of the company, must be in form on behalf of all the shareholders. It is immaterial that some of the shareholders may be opposed to the suit (p). 25. Injunctions have been granted at the suit of a share- holder suing on behalf of himself and all other shareholders to restrain a railway company from applying the funds of the company towards the establishment of a steam packet company in connection with tlie railway (^q) ; or in the purchase of shares in another railway company (r). So also railway com- panies have been restrained from applying moneys raised for the purpose of completing a particular branch, to the purposes of any part of the main line (s), and from applying the cor- porate funds in the construction of part only of the line or otherwise, than with the view and purpose of completing the whole (i). Where, however, in a somewhat similar case, it appeared that greater mischief would arise from granting than withholding the injunction, the court refused to interfere (u). 26. The application of the funds of a company in making presents to the directors, or in discounting their bills (ii), in bribing a land-owner to buy off his opposition in Parlia- ment («) ; in the * purchase of the shares of a retiring * 555 shareholder (j/') ; or in the payment of interest to the Ip) Beman v. Eufford, 1 Sim. N. S. Eailway Co. v. Metropolitan Railway 564; White v. Carmarthen, &c., Rail- Co., 32 L. J. Ch. 382. way Co., 1 H. & M. 786. See also Mills (s) Bagshaw v. Eastern Union Rail- V. Northern Railway of Buenos Ayres way Co., 2 Mao. & 6. 389. See 6 H. Co., 5 L. R. Ch. Ap. 621. L. 187. (j) Colman «. Eastern Counties Rail- (t) Cohen u. Wilkinson, 12 Beav. 134, way Co., 10 Beav. 1. Comp. Forrest 1 Mac. & G. 486. See Logan v. Cour- V. Manchester, Sheffield, and Lincoln- town, 13 Beav. 22. shire Eailway Co., 30 Bear. 40, aff' d. {u) Hodgson v. Earl of Powis, 1 D. on other grounds, 7 Jur. N. S. 887 ; M. & G. 14. See Caledonian and Dum- South Wales Railway Co. v. Redmond, bartonshire Eailway Co. v. Magistrates 10 C. B. N. S. 675. of Helensburgh, 2 Macq. 418. ()•) Salomons v. Laing, 12 Beav. 339. (w) York and North Midland Eail- See Maunsell U.Midland Great Western way Co. v. Hudson, 16 Beav. 485; Eailway Co. of Ireland, 1 H. & M. 130. Bluck v. Mallalue, 27 Beav. 404. It appears to be doubtful whether it is {x) Scottish North Eastern Eailway ultra vires in a railway company, who Co. v. Stewart, 3 Macq. 382, per Lord being empowered to take shares in Cranworth. See Leominster Canal another railway company, have taken Navigation Co. v. Shrewsbury and shares to the full extent of their powers Hereford Eailway Co., 3 K. & J. 654. to take new shares allotted to the hold- (y) Hodgkinson v. National Live ers of old shares. Great Western Stock Insurance Co., 4 I). & J. 423. [575] * 556 INJUNCTIONS AGAINST [CH. XXIII. shareholders before any profits have been realized out of capi- tal or borrowed moneys (2) ; or generally in a way not provided for by the act which regulates the business of the company (a), is an improper application of them, and will be restrained by • injunction (6). 27. The payment of dividends on the ordinary stock of a company until the arrears of dividend on preference shares, created under the provisions of an act of Parliament, shall have been successively paid according to their priorities (c), out of the profits accruing subsequently to the date of the arrears (cZ), is improper, and will be restrained by injunc- tion (e). The fact that the owner of preference shares may have in former years acquiesced in the declaration of a divi- dend on the ordinary shares, whilst there was an arrear of dividend due on the preference shares, will not deprive him of his right in respect of subsequent arrears, though it will pre- clude him from making any claim in respect of these particular arrears (/). A preferential shareholder may file a bill to restrain a company from making a dividend prejudicial to his interests without waiting till there are funds to make a dividend (^). * 556 28. * The application of the funds of a company in paying the expenses of a bill in Parliament is improper, unless specially authorized by the act or any acts incorporated therewith (^). "The intended application," said Turner, L. J., in Simpson v. Denison (i), " is for another and a differ- See Ex parte Morgan, 1 Mac. & G. 225 ; way Co., 9 Ha. 325 ; Henry v. Great Kent V. Jackson, liBeav. 382. Northern Railway Co., 1 D. & J. 607 ; (2) Macdougall v. Jersey Imperial Matthews v. Great Northern Eailway Hotel Co., 2 H. & M. 528. See Allen Co., 28 L. J. Ch. 875; Corry v. Lon- V. Talbot, 80 L. T. 316. donderry and Enniskillen Railway Co., [a) Re St. George's Steam Packet 29 Beav. 263. See Coates v. Notting- Co., 21 L. J. Ch. 593 ; Ex parte Cropper, ham Waterworks Co., SO Beav. 86. 1 D. M. & G. 147. See, as to interest on the arrears, Corry (6) See Grimes v. Harrison, 26 Beav. v. Londonderry and Enniskillen Eail- 435 ; Simpson v. Westminster Palace way Co., 29 Beav. 263. Hotel Co., 8 H. L. 712 ; Re Kent Build- (e) See ih., as to the manner in which ing Society, 1 Dr. & Sm. 417; Mac- profits are to be ascertained for the pur- dougall V. Jersey Hotel Co., 2 H. & M. pose of making a dividend. 528 ; Crewer and Wheal Abraham Min- (/) Matthews v. Great Northern ing Co. V. Williams, 14 W. R. 1003 ; Railway Co., 28 L. J. Ch. 378. Joint Stock Discount Co. v. Brown, 12 (o) Sturge v. Eastern Union Railway Jur. N. S. 899. Co., 7 D. M. & G. 158. (c) Crawford v. North Eastern Rail- (A) See 8 & 9 Viet. o. 16. way Co., 3 K. & J. 733. (j) 10 Ha. 62. {d) Stevens v. South Devon Rail- [576] CH. XXIII.] INCORPORATED AND OTHER COMPANIES, * 557 ent purpose from that which is described in the act under whicla the company is formed, and which constitutes tlie part- nership deed of the company" (^). Accordingly railway companies have been restrained from applying any part of their funds towards the expenses incident to an application to Par- liament for the protnotion of a branch line (Z), or a new line in extension of the existing one («i), for the improvement of the navigation of a river communicating by means of a branch line with the main line (m), or for the purpose of bringing about an alteration in the constitution of the company (o), or for the purpose of carrying out an arrangement with another company (jpy. The application of the funds of a company towards making up the Parliamentary deposit required for bills in Parliament promoted by another company (g'), or towards repaying moneys borrowed by the promoters, and subscribed by them in conformity with the standing orders of Parlia- ment (r), is improper. 29. In Bell v. Sierra Nevada Co., Limited (s), the directors of a foreign company resident in England were restrained from applying the funds of the company in defraying the expenses of an intended application to a foreign legislature. 30. The rule is different where expenses have been incurred in opposing a bill in Parliament which would, if sanctioned, be injurious to the undertaking. In such cases the funds of the * company may be applied in meeting the expenses * 557 so incurred (t). 31. The distinction between going to Parliament for an alteration of the constitution, or a variation or extension of the powers of a company, and applying the funds of the company towards the payment of the expenses of going to Parliament (it) Vance K. East Lancashire Railway See Parker v. Rirer Dun Navigation) ' Co., 3 K. & J. 50; East Anglian RaU- Co., 1 De G. & S. 192. way Co. ^. Eastern Counties Railway (5) Maunsell v. Midland Great West- Co., 11 C. B. 775. ern Railway Co. of Ireland, 1 H. & M.. (/) Great Western Railway Co. v. 130. Rushout, 5De G. & S. 309. (r) Spackman v. Lattimore, 8 Giffi. (m) Vance v. Bast Lancashire Rail- 16. s way Co., 3 K. & J. 50. (s) 1 D. E. & J. ]«3. (n) Munt V. Shrewsbury and Chester - (t) Bright v. North, 2 Ph. 216; Att.- Railway Co., 13 Bear. 1. Gen. v. Andrews, 2 Mac. & G. 230; (0) Stevens v. South Devon Railway Att.-Gen. v. Mayor of Wigan, 5 D. M. Co, *. 59. & G. 54. (p) Simpson v. Denison, 10 Ha. 61. 37 [577] * 558 INJUNCTIONS AGAINST [CH. XXIII. is a well defined one (u). Every company acting in its cor- porate capacity has full power to make an application to Par- liament for these or other purposes. There is no ground on which a court of equity can interfere (v). In Bell v. Sierra Nevada Co. (a;), the court would not restrain a company from applying to the legislature of a foreign country, even though nearly all the shareholders were resident in England, there appearing to be no intention on the part of the company to act except with the sanction of the foreign legislature. In Astley V. Manchester, vShefSeld, and Lincolnshire Railway Co. («/), the court refused to restrain a railway company, which had taken lands of the plaintiff under their compulsory powers for the purpose of making a railway, from ma_king au application to Parliament upon the abandonment of the railway to enable them to use the land for a different purpose and in a different undertaking. In one instance, indeed (»), the majority of a chartered society was restrained from surrendering the existing charter with a view to procure a new one materially differing from it, but the authority of the case must be now considered very questionable (a). 32. When a public company incorporated by statute is engaging in a transaction which is ultra vires, the court can only deal with the case as it exists, and will not take into con- sideration the possibility of further powers being obtained by the company (J). * 558 83. * Companies formed for a special purpose may not enter into contracts or engagements which are not within the proper purposes for which they are established, or are not authorized either by the deed of settlement or the act of Parliament, as the case may be. Where a contract is one which, from the nature and object of incorporation, the corpo- rate body is by necessary or reasonable inference from the pro- lu) Simpson v. Denison, 10 Ha. 61. (y\ 2 D. & J. 463. (v) Ware v. Grand Junction Water- (2) Ward v. Society of Attorneys, 1 works Co., 2 B. & M. 470 ; Great West- Coll. 370. ern Railway Co. v. Rushout, 5 De G. & (d) See as to the Wharnclrffe Order, S. 311 ; Vance v. East Lancashire Rail- Maunsell v. Midland Great Western way Co., 3 K; & J. 57 ; Stevens v. Railway Company of Ireland, 1 H. & South Devon Railway Co., 13 Beav. M. 162. 49; Hattersley v. Lord Shelburne, 31 (6) Great Western Railway Co. v. L. J. Ch. 873. Metropolitan Railway Co., 32 L. J. Ch. (x) 1 D. F. & J. 183. 382. [578] CH. XXIII.] INCORPOEATED AND OTHER COMPANIES. * 559 visions of the deed of settlement or the act prohibited from making, it is ultra vires at law and void (c). " Where," said Lord Wensleydale, in South Yorkshire Railway Company and Eiver Dun Navigation Company v. Great Northern Railway Company (ci), " a corporation is created by act of Parliament for particular purposes with special powers, their deed, though under their corporate seal, does not bind them, if it appear by the express provisions of the statute creating the corporation, or by necessary or reasonable inference from its enactments, that the deed is ultra vires ; that is, that the legislature meant that such a deed should not be made" (e). Contracts frus- trating or necessarily inconsistent with or for a purpose wholly inconsistent with the objects for which a company is estab- lished, are impliedly forbidden by the act (/). 34. One company may not purchase the business of another company (^), or transfer its business and delegate its powers to another company (h), or amalgamate with another com- pany (i), unless specially authorized to do so either by the deed of settlement * or the act of incorporation. * 559 General powers of management or powers to enter into contracts or arrangements with other companies do not autlior- ize an amalgamation (A). In Charlton v. Newcastle and Car- lisle Railway Company (^),two railway companies had entered into two illegal agreements for an amalgamation, and after bill filed had entered into a third agreement, in the place of the two others, with the intent of carrying out the same object, as (c) South Yorkshire, &c., Railway way Co., 5 De G. & S. 562; Kearns v. Co. V. Great Northern RaUway Co., 9 Leaf, 1 H. & M. 681. See Gregory v. Exch. 55, 84 ; Shrewsbury and Bir- Patchett, 33 Beav. 595. mingham Railway Co. v. London and (i) Gilbert v. Cooper, 10 Jur. 580 ; North Western Railway Co., 6 H. L. Lewis v. Cooper, 4 Ra. Ca. 413 ; Re 136; Scottish North Eastern Railway Era Insurance Co., 2 J. & H. 400; Co. V. Stewart, 3 Macq. 382. Kearns v. Leaf, 1 H. & M. 681. (d) 9 Exch. 55, 84. (i) Gilbert v. Cooper, 10 Jur. 580, 4 (c) Chambers !). Manchester and Mil- Ra. Ca. 396; Be Era Insurance Co., 2 ford Railway Co., 6 B. & S. 688. J. & H. 400. Comp. Anglo-Australian (/) South Wales Railway Co. v. Red- Insurance Co. v. British Provincial In- mond, 10 C. B. N. S. 682. See Mayor surance Society, 8 GifF. 521, on appeal, of Norwich v. Norfolk Railway Co., 4 8 Jur. N. S. 628 ; Re Bank of Hindus- E. & B. 416, per Erie, C. J. tan, Higgs' case, 2 H. & M. 657. See (o) Ernest v. NichoUs, 6 H. L. 401. now, as to amalgamation of railway com- {h) Beraan v. Rufford, 1 Sim. N. S. panies, 26 & 27 Vict. c. 92, ss. 36- 566; Great Northern Railway Co. v. 55. Eastern Counties Railway Co., 9 Ha. (I) 5 Jur. N. S. 1097. 306 ; Winch v. Birkenhead, &c., Rail- [579] * 560 INJUNCTIONS AGAINST [CH. XXIII. far as law would allow. The court, without determining the validity of the third agreement, granted an injunction against carrying out the two others. 35. Companies cannot borrow moneys on bonds except in the way authorized by the acts under which they are incorpo- rated (m) ; nor can a railway company draw, accept, or indorse bills of exchange (n) ; but there is nothing to prevent a rail- way or other company from issuing bonds to a contractor for a debt really due (o). Nor is a man employed by the directors of a company bound to inquire whether they are acting within the limits of their powers, but can enforce against the company -claims in respect of matters in which he has been employed, even altiiough he may have had knowledge that the funds of the company are being applied to an unauthorized purpose (p'). 36. Directors of a shipping company with limited liability under the Joint-Stock Companies Act have power to borrow money by mortgage of the company's ships (g'). 37. A company has no right, unless authorized by the deed of settlement, or the act of Parliament incorporating it, to issue preference shares (r). Railway companies cannot * 560 create preference * shares under the general powers con- tained in ordinary railway acts (s), nor can a general meeting of the shareholders of a company under powers of Companies Act, 1862, s. 50, create them, luiless authorized to do so by the deed of settlement (t). 38. An agreement by one railway company to take a lease of the line of another railway company, is ultra vires and void, unless specially authorized by statute (w). 39. The 112th clause of the Railways Clauses Consolidation (m) Chambers v. Manchester and (s) Sturge v. Eastern Union Rail- Milford Railway Co., 5 B. & S. 588; way Co., 7 D. M. & G. 158. See 26 & Eashdall v. Ford, 2 L. R. Eq. 750. 27 Vist. c. 118, ss. 13-15, as to general See Bryon v. Metropolitan Saloon Om- powers given to railway companies to nibus Co., 3 T), & J. 123. create preference shares. (n) Bateman D. Mid Wales Railway (i) Hutton w. Scarborough Cliff Hotel Co., 1 L. R. C. P. 499. Co., 2 Dr. & Sm. 521. (o) White V. Carmarthen Railway (m) East Anglian Railway Co. v. Co., 1 H. & M. 78S. Eastern Counties Railway Co^ 11 C. B. Ip) Green «. Nixon, 23 Bear. 530. 775; Macgregor w. Dover and Deal Rail- \q) Australian, &c., Co: v. Mounsey, way Co., 18 Q. B. 618. See Shrews- 4 K. & J. 733. bury and Birmingham Railway Co. v. (r) Moss V. Syers, 32 L. J. Ch. 711 ; London and North Western Railway Hutton V. Scarborough CliffHotel Co., 2 Co., 6 H. L. 113. Dr. Sf, Sm. 514, affi'd. 34 L. J. Ch. 643. [580] CH. XXIII.] INCORPORATED AND OTHER COMPANIES. * 561 Act, 8 & 9 Vict. c. 20, which prescribes the covenants which shall be contained in the lease of a railway to any person or company, does not authorize the lease of a railway, but merely points out the covenants to be inserted in every lease. A rail- way company may not accept or grant a lease, sale, or transfer of its own or any other line of railway except under express powers conferred by statute (w). In Exeter and Crediton Eailway Company v. Buller (w), where the special act author- ized a lease of the line " to the Bristol and Exeter, or any other company," and negotiations had been going on with the sanc- tion of the shareholders, for leasing the line to the Bristol and Exeter Railway Company, the directors were restrained from leasing it to that company at the suit of the majority of the shareholders, who were desirous of leasing it to another line. 40. A railway company which has been empowered by stat- ute to purchase a canal company, does not act ultra vires by availing itself of the powers given to canal companies by 8 & 9 Vict. c. 42, " An act to enable companies to become carriers of goods upon their canal," and taking a lease of * the tolls of another canal (x). A canal company is * 561 not empowered by the act to transfer its property to another company (^). 41. A working agreement between two railway companies for 99 years (z), or one which stipulates that the profits shall be so shared as to give a certain percentage to each (a), is ultra vires and will be restrained (6). But a traffic agreement between two railway companies for a certain number of years to divide the profits of the whole traffic in certain fixed proportions calculated on the past course of trajBfic, and entered into hand fide for the purpose of avoiding competition, is not ultra vires (c). The managing body of a railway company, however, have no power to enter into a contract fixing and regulating the future iv) 8 & 9 Vict. 0. 96. See also 21 & (z) VTinch v. Birkenhead, &c., Eail- > 22 Vict. c. 75, s. 3, and 23 & 24 Vict. c. way Co., 5 De G. & S. 562. 41, as to canal and navigation com- (a) Charlton v. Newcastle Railway panies. Co., 5 Jur. N. S. 1097. (w) 5 Ra. Ca. 211. (6) See now, as to working agree- \x) Rogers v. Oxford, Worcester, and ments, 26 & 27 Vict. c. 92, ss. 22-29. "Wolverhampton Eailway Co., 2 D. & (c) Hare v. London and North "West- J. 662. ern Railway Co., 2 J. & H. 80. («) M'Donnell v. Grand Canal Co., 3 It. Ch. 578. [581] * 562 INJITNCTIONS AGAINST [CH. XXIII. traflSc which may be carried upon a line of railway, which the company may thereafter be empowered to construct, so as to give another company an interest in such traffic and profit (c?). 42. An agreement between two railway companies to make an application to Parliament for the necessary powers to carry out certain heads of agreement between them, which are not to be acted on until the necessary powers have been obtained, is not illegal (e) ; but any attempt to act upon the agreement before the necessary powers have been obtained is illegal (/). 43. An agreement cannot be considered legal, though some of the terms involve acts which may be lawfully done, if the purpose of the agreement be to work out something illegal. Therefore where railway companies agree to do acts which they have power to do, as well as others which they have no power to do, a court of equity will restrain them from * 562 acting on the agreement * at all, where the purpose of the company is to carry out an illegal scheme (5^). 44. Where the shareholders of a company had by resolu- tions authorized acts partly within and partly beyond their powers, such acts being distinct and capable of being carried out alone, an injunction was granted at the suit of a share- holder before notice of any attempt to carry out the illegal part of the scheme (A). A shareholder is not excluded from relief by injuijction against the provisions of an agreement which are illegal, because the same instrument contains, in addition to the illegal provisions, other matters and things over which he has no control (i). An agreement between two railway companies containing clauses ultra vires and clauses for referring all disputes arising under the agreement {d) Midland Railway Co. v. London (e) Winch v. Birkenhead, &c., Rail- and North Western Railway Co., 2 L. way Co., 5 De G. & S. 562 ; Maunsell E. Eq. 525. In Att.-Gen. v. Ely, H. & v. Midland Great Western Railway Co. S. Railway Co., 6 L. R. Eq. 106, it is of Ireland, 1 H. & M. 130 ; Hattersley held by Lord Romilly, M. R. that it is v. Lord Shelburne, 31 L. J. Ch. 873. not the province of a court of equity to (/) Hattersley v. Lord Shelburne, interfere to compel defendants who 81 L, J. Ch. 878. have done sometliing ultra vires, but (g) Hattersley v. Lord Shelburne, 31 bondjide with the view of aceommodat- L. J. Ch. 873. See M'Donnell v. Grand ing the public to do something other Canal Co., 3 Ir. Ch. 578. than they have done which would be (h) Charlton v. Newcastle and Car- intra vires and therefore legal, but lisle Railway Co., 5 Jur. N. S. 1097. would be more inconvenient to the (i) Maunsell w. Midland Great West- public, or the persons complaining than em Railway Co. of Ireland, 1 H. & M. that which exists. 183. [582] CH. XXIII.] INCORPORATED AND OTHER COMPANIES. * 563 is void, and the companies will be restrained, at the suit of a shareholder, from proceeding to arbitration (A;). 45. How far engagements entered into by the promoters of a company before the Act of Incorporation has been obtained are binding upon the company after incorporation, is a subject which has led to much difference of opinion. Lord Cottenham decided distinctly in three cases that the contracts of the pro- moters are or may be binding on the company after incorpora- tion (Z). These decisions have not been expressly overruled, but their propriety has been more than once questioned, and has indeed been expressly denied in the House of Lords. In a carefully considered judgment, Lord Cranworth expressed him- self strongly in favor of the rule that a company should not be held bound by the contracts of the promoters unsanctioned by the legislature, and doubted whether he should not advise their lordships to declare that these decisions of Lord Cotten- ham were no longer to be considered law. But he hesi- tated to * do so, as it was not necessary in that case to * 563 call upon their lordships to pronounce a decision one way or the other upon the abstract question, inasmuch as the particular contract in that case was beyond the power of the company (m). In Thomas v. Hobler (w). Lord Westbury held that a company formed on the cost-book principle is only bound by the rules and regulations entered in the cost-book, and is not bound by a preliminary contract entered into before the formation of the company. 46. Companies may, however, after incorporation, ratify and adopt agreements which have been entered into by the pro- jectors. Thus, where a land-owner withdrew his opposition in Parliament to a railway bill upon an agreement with the pro- jectors that the company would take his land upon certain terms, and the company after incorporation allowed judgment in an action upon the agreement to be entered up against itself, Ik) Maunsell v. Midland Great West. (m) Caledonian and Dumbartonshire Railway Co. of Ireland, 1 H. & M. 133. Eailway Co. v. Magistrates of Helens- (l) Edwards v. Grand Junction Rail- burgh, 2 Macq. 391 ; Preston v. Lirer- way Co., 1 M. & C. 650 ; Stanley v. pool and Manchester Railway Co., 6 H. Chester and Birkenhead Railway Co., L. 605; Scottish North Eastern Rail- 3 M & C 773 ; Petre v. Eastern Coun- way Co. v. Stewart, 3 Macq. 382 ; Earl ties Railway Co., 1 Ra. Ca. 462. See of Shrewsbury v. North Staffordshire Earl of Shrewsbury v. North Stafford- Eailway Co., I L. R. Eq. 593. shire Railway Co., L. R. Eq. 593, 616. (n) 8 Jur. N. S. 125. [583] *564 INJUNCTIONS AGAINST [CH. XXIII. the court held the recognition of the contract sufficient to ren- der it binding on the company, whatever might have been the case, had there been no such recognition (o). Prom the ob- servations of Wood, V. C, in Bedford and Cambridge Railway Company v. Stanley (p), it may be concluded that agreements on the part of the promoters of a company may be adopted by the company after incorporation, where the purpose for which they have been entered into is within the powers of the incor- porated body, and where the agreement is in itself fair and reasonable (g-). 47. An agreement by a land-owner with the promoters of a railway company to sell them, in the event of their obtaining an act of Parliament, as much land as tliey may require at a fixed rate, is binding upon him, although the company has no existence at the time of the contract. It is no objection * 564 on the * ground of mutuality that the company is not bound to take the land (r). 48. If it appears from the contract that the vendor is not to be paid the stipulated price unless the company, when incor- porated, require and actually take the land, the contract is considered to be conditional on taking the land (s). 49. An agreement entered into and drawn up with all due formalities, between the directors of an incorporated company and a land-owner, to take land in the event of an application to Parliament for an alteration of the line or for permission to make a branch, being granted, is valid (jf). (o) Williams i'. St. George's Harbor the company from continuing in pos- Co., 2 D. & J. 547. session until the purchase-money was (p) 2 J. & H. 746. paid, and whether the land-owner inight {g) See Leominster Canal Naviga- not be entitled to a receiver, or to have tion Co. V. Shrewsbury and Hereford the purchase money paid into court. Railway Co., 3 K. & J. 668, per Wood, qucere. Pell v. Northampton & B. Junc- V. C, explaining Caledonian and Dum- tion Railway Co., 2 L. R. Ch. Ap. 100. bartonshire Railway Co. v. Magistrates (s) Webb v. Direct London and Ports- of Helepsburgh, 2 Macq. 391. mouth Railway Co., 1 D. M. & G. 521 ; (r) Bedford and Cambridge Railway Stuart v. London and North Western Co. V. Stanley, 2 J. & H. T46. A rail- Railway Co., ib. 721 ; Gage v. New- way company, by agreement with a market Railway Co., 18 Q. B. 467 ; land-owner, were let into possession of Edinburgh, Perth, and Dundee Rail- land which they required for part of way Co. v, Philip, 2 Macq. 514 ; Scot- their line, and made their railway over tish North Eastern Railway Co. v. it, giving a- bond for payment of the Stewart, 3 Macq. 382. purchase money on a future day, but (t) Gooday v. Colchester Railway Co., made default in payment of the bond, 17 Beav. 133 ; Eastern Counties Rail- and it was held that the land-owner was way Co. v. Hawkes, 6 H. L. 331 ; not entitled to an injunction to restrain Leominster Canal Navigation Co. v. [584] CH. XXIII.] INCOEPOBATED AND OTHER COMPANIES. * 565 50. If a contract between two companies is illegal, the court will not assist either of the parties in obtaining a collateral bene- fit which the agreement would give, or aid them in any manner which would promote the object of the agreement (m). 51. The application of the funds of a company to a purpose not falling properly within the objects of the company must be carefully distinguished from cases where the application is to a purpose legitimately connected with the purpose for which the " company was formed, and which is in furtherance of or con- ducive to the welfare of the concern. The application of the funds of the company to such a purpose is not improper. Thus, a company incorporated for the purpose of keeping a hotel was held entitled to lease part of the hotel for a short term of years to the head of a government department (x). So also a railway and steam ferry company may lend out its ferry-boats on ex- cursion trips, when not wanted for the ferry (y). So also * a contract between a railway company and an * 565 individual to run a steamer between the terminus of the railway in England and the coast of Ireland was held valid, as being in furtherance of the object for which the company was formed and incorporated, viz., the facilitation of commu- nication between England and Ireland (z). So also the di- rectors of a fire insurance company may, in the exercise of their discretion, make payments to persons insured in respect of losses not falling strictly within the terms of the policies, if such payments are conducive to the welfare of the company and calculated to promote its interest, or if the payment of such losses is in accordance with the usual custom of other insurance companies (a). 52. In a case where the directors of a projected company, Shrewsbury and Hereford Railway Co., mond, 10 C. B. N. S. 675. See "Wilby 3 K. & J. 669 ; Scottish North East- v. West Cornwall Railway Co., 2 H. & em Railway Co. U.Stewart, 3 Macq. 382. N. 703; Young v. Brompton Water- (u) Great Northern Railway Co. v. works Co., 1 B. & S. 675. See, also. Eastern Counties Railway Co., 9 Ha. 306. Mayor of Norwich v. Norfolk Railway (x) Simpson w. Westminster Palace Co., 4 E. &B. 414, pa- Erie, C.J. ; East- Hotel Co., 8 H. L. 712. See Feather- em Countries Railway Co. v. Hawkes, stonhaugh v. Lee Moor Porcelain Co., 5 H. L. 372, per Lord St. Leonards ; 1 L. R. Eq. 318. Warden ,of Dover Harbor v. South [y] Forrest v. Manchester, Sheffield, Eastern Railway Co., 9 Ha. 489. Comp. and Lincolnshire Railway Co., 30 Beav. Simpson v. Denison, 10 Ha. 62. 40 affirmed on other grounds, 7 Jur. [a) Taunton v. Royal Insurance Co., U. S. 887. 2 H. & M. 135. See Ellis v. Henderson, \z) South Wales Railway Co. v. Red- 3 Bell, Sc. Ap. 1. [586] * 566 INJUNCTIONS AGAINST [CH. XXIII. being unable to carry out the project to its full extent, deter- mined upon winding up the affairs and returning to the appli- cants for shares the full amount of the deposits made by them, and deposits amounting to two-thirds of the amount deposited had been returned to the depositors and the remainder was in course of payment, the fcourt held they were justified in the course they had taken, it being morally impossible that the payment could have been carried out in its integrity from the events which had happened (J). 53. An act, although it may be beyond the powers of the directors or managing body of a company, may be capable of being adopted and confirmed at a meeting of the shareholders as a body. If so, the question is properly a subject of internal regulation and management, and the court will not interfere until all reasonable attempts have been made to take the sense of the general body of the shareholders on the matters * 566 in question. * Before applying to the court, all the means provided by the articles, the deed of settlement, or the Act of Incorporation, as the case may be, for the purpose of bringing the matter before the general body of the share- holders, must be resorted to and exhausted (c). Accordingly where two members of an incorporated company had filed a bill against the directors and others, charging them with fraudulent and illegal acts and praying for the appointment of a receiver, the court refused to interfere on the ground that the acts complained of were capable of confirmation at the option of the shareholders, and that it did not appear that any attempt had been made to bring the matter before the general body of the shareholders (cZ). So also, and upon the same grounds, the court refused to restrain persons, who were alleged to have been improperly or illegally appointed directors, from acting as such (e). So also, and upon the same grounds, the court has refused to restrain — (6) Bank of Switzerland u. Bank of 3 Macq. 799 ; Davidson v. Tulloch, ib. Turkey, 5 L. T.N. S. 549. 796, per Lord Cranworth; Fraser v. (c) Carlen v. Drury, 1 V. & B. 164 ; Wlialley, 2 H. & M. 10; Macdougall v. Ellisonu. Bignold, 2 J. &W. 503; Foss Jersey Hotel Co., ib. 528; Gregory V. Harbottle, 2 Ha. 461 ; Mozley v. v. Patchett, 33 Beav. 595. Alston, 1 Ph. 800; Lord v. Copper (d) Foss w. Harbottle, 2 Ha. 461. Mining Co., 2 Ph. 740 ; Browne v. Mon- (e) Mozley v. Alston, 1 Ph. 790 ; Hat- mouthshire, &e., Canal Co., 13 Beav. tersley v. Lord Shelburne, 31 L. J. Ch. 32; Orr v. Glasgow, &c., Railway Co., 873. [586] CH. XXIII.] INCORPORATED AND OTHER COMPANIES, * 567 (1) The payment of a dividend by a company before its own works were completed (/), or before its own unsecured debts were paid (^), or the payment of a dividend not justified by the pecuniary condition of the company (A)- (2) The issuing of preference shares, there being a power in the act to create them (i). (3) The making a call, if made in a proper form and for a proper purpose (k'), there being no equity upon which the court can interfere to restrain a company from making calls, or can * inquire into the propriety or necessity of making * 567 a call (Z) ; the making of necessary calls by directors who have been guilty of improper conduct (m') ; the making of a call, alleged to be unfair and unnecessary on one set of shareholders in an amalgamated company (w) ; actions for calls on improperly relinquished shares (o) ; or actions for calls where the moneys raised by the calls have been improp- erly applied (p). (4) The application of moneys raised by the issue of new shares to a purpose different from that for which they were raised (g) ; the borrowing moneys on debentures (r) ; the return of deposits to subscribers (s) ; and the continuance in ofSce of the directors appointed in the place of others removed (t'). (5) The application of profits in the repayment of contrib- uted capital, there being no express prohibition in the deed of (/) Browne v. Monmouthshire Kail- National Live Stock Insurance Co., 4 way Co., 13 Beav. 32. D. & J. 422 ; Orr v. Glasgow, &c., Eail- Ig) Stevens v. South Devon Eailway way Co., 3 Macq. 799. Co., 9 Ha. 813. (o) Harris v. North Devon Railway (h) Gregory v. Patchett, 33 Beav. Co., 20 Beav. 384; Playfair d. Birming- 595, 606, per Lord Eomilly, M. R. ham, Bristol, &e., Railway Co., 1 Ra. Comp. Macdougall v. Jersey Hotel Co., Ca. 640., Comp. Hodgkinsonti. National 2 H. & M. 628. Live Stock Insurance Co., 4 D. & J. (i) Edwards M. Shrewsbury and Bir- 422; Orr «. Glasgow, &c., Railway Co., mingham Railway Co., 2 De G. & S. 3 Macq. 799. 537 ; Hutton v. Scarborough Cliff Hotel (p) Orr v. Glasgow, &c.. Railway Co., Co., 2Dr. &Sm. 514. 3 Macq. 799. (k) Cooper v. Shropshire Union Rail- (q) Yetts v. Norfolk Railway Co., 3 way Co., 6 Ra. Ca, 136. Comp. Hodg- De 6. & S. 293. kinson w. National Live Stock Insurance (r) Bryon v. Metropohtan Saloon Co., 4 D. & J. 422. Omnibus Co., 3 D. & J. 123. /) Macbride v. Lindsay, 9 Ha. 574. (s) Kent v. Jackson, 14 Beav. 367, 2 m) -Logan v. Courtown, 13 Bea>. D. M. & G. 49. 22; (t) Inderwick u. Snell, 2 Mac. & G. In) Bailey w. Birkenhead, Lancashire 216. See Lord v. Copper Mines Co., 2 and Cheshire Junction Railway Co., Ph. 740 ; Exeter and Crediton Railway 12 Beav. 433. Comp. Hodgkinson v. Co.w. BuUer, 5 Ra. Ca. 211. [587] * 568 INJUNCTIONS AGAINST [CH. XXIII. settlement, although the deed seems to contemplate a contin- uing capital as in an ordinary partnership (m). (6) The commencement of business by a company consti- tuted under the Joint-Stock Companies Act, 1862, on the ground that all the nominal capital has not been subscribed, or on the ground that the business actually commenced is on a much smaller scale than that contemplated by the pro- spectus (a:). 54. But if it is absolutely necessary that the court should interfere to prevent irreparable mischjef from being done before the time for taking the necessary steps to call a general meet- ing of the shareholders can arrive (y), or if the directors * 5,68 are adopting * a particular course for the express pur- pose of preventing the free action of the shareholders (s), the court will interfere (a). 65. If the measures adopted by the directors or managing body are plainly beyond the powers of the company, and are plainly inconsistent with the objects for which the company was constituted, the court will, at the instance of the minority, interfere to prevent the performance of the act complained of, whether or not an appeal has been made by the minority to the body of the shareholders generally (6). But even in such cases it may often be better to have recourse to such extra- judicial remedies as may be open before applying to the court (c). 56. When a factious minority is illegally resisting the major- ity, the court has jurisdiction to interfere. 57. A general meeting, though it has power to alter those regulations of the company which relate to management, has no power to alter the regulations which relate to the constitu- tion of the company (c?). («) Binney v. Ince Hall Coal and perial Mercantile Credit Associatioiij Canal Co., 35 L. J. Ch. 363. 12 Jur. N. S. 739. (x) Maodougall v. Jersey Imperial (b) Gregory v. Patchett, 38 Bear. Hotel Co., 2 H. & M. 528. 595, 606. (y) Great Western Eailway Co. v. (c) Bailey v. Birkenhead, Lanca- Eushout, 5 De G. & S. 310 . Comp. shire, and Cheshire Junction Eailway Gregory u. Patchett, 33 Bear. 595, Co., 13 Beav. 433 ; Edwards v. Shrews- 606. bury, &c., Eailway Co., 2 De G. & S. [z] Fraser v. Whalley, 2 H. & M. 537 ; Exeter and Crediton Eailway 10. Co. V. BuUer, 5 Ea. Ca. 211, 16 L. J. (o) See Ee London Mercantile Dis- Ch. 449. count Co., 35 L. J. Ch. 229; Re Im- (d) Button u. Scarborough Cliff Hotel [588] CH. XXIII.] INCOBPOBATED AND OTHEB COMPANIES. * 569 58. Where an association is formed, the members of which have bound themselves by certain rules, they are bound by their rules, and the court will not interfere except in cases of breach of trust or oppression (e). The court is not the proper forum for litigation of disputes between the members of a benefit building society. The case being one which depends on the construction of the rules, the court will not interfere (/). A benefit building * society is not pre- * 569 eluded from investing its funds in the purchase of a real estate (^). 59. Where the court interferes by injunction, at the suit of a shareholder suing on behalf of himself and all the other share- holders, to restrain a company from doing improper or illegal acts, it will also to the extent of its powers redress what has been done and give relief to persons injured thereby, although it be not called upon to dissolve the company and wind up its affairs (h). 60. In a suit by a shareholder on behalf of himself and all other shareholders to restrain an illegal payment of dividends, the plaintiff is not entitled to costs as between solicitor and client (i).i Co., 2 Dr. & Sm. 521, 34 L. J. Ch. 643. (i) Morgan v. Great Eastern EaUway See Yeates v. Roberts, 3 Drew. 170 ; Co., 1 H. & M. 560. Bryon v. Metropolitan Saloon Omnibus ^ Equity will interfere by injunction Co., 3 D. & J. 123 ; Macdougall v. to restrain the infringement of corpo- Jersey Hotel Co., 2 H. & M. 528 ; rate franchises. " It is considered that Gregory v. Patchett, 33 Beav. 595. this interference is solely in aid of the See Joint-stock Discount Co. v. Brown, legal right, that if the legal right is 12 Jur. N. S. 899. free from doubt equity may assume to (c) See Clough v. Eatcliffe, 1 De G. decide it, or to act definitely upon its & S. 164; Yeates v. Eoberts, 3 Drew, acknowledged existence. If it is con- 170, 7 D. M. & G. 227 ; Pare v. Clegg, sidered conjectural, and altogether 29 Beav. 589. See Bank of Turkey v, problematical, equity ordinarily will Ottoman Co., 14 L. T. N. S. 545. not interfere until the legal right is (/) Trott V. Hughes, 16 L. T. 260. estabUshed by the judgment of the Ig) Mullock «. Jenkins, 14 Beav. 628. appropriate legal tribunal. But, in their See Grimes v, Harrison, 26 Beav. 435 ; discretion, courts of equity will interfere Queen v. D'Eyncourt, 4 B. & S. 820. by injunction during the pendency of See also, as to injunctions against trus- the trial at law to prevent in-eparable tees of a benefit society, Evans v. Coven- injury, to avoid multiplicity of suits, try, 5 D. M. & G. 911. See ib., as to and in some cases where there is given parties. no adequate legal redress. " 2 Redfield (h) Gregory v. Patchett, 33 Beav. on Railways, 341, and cases cited. 695, 607. [689] ■ 570 INJUNCTIONS AGAINST COEPORATIONS. [CH. X2IV. *570 * CHAPTER XXIV. INJUNCTIONS AGAINST CORPOEATIONS. 1. Power of corporations to alienate their property. 2. Court will not interfere at suit of a member of corporation to prevent forfeiture of charter. 3. Parties to suit. 4. Provisions of English statute. 5. Public functionaries or bodies restrained from going beyond their authority. 6 & 7. Misapplication of funds by municipal corporations restrained. 8. Effect of delay in making application for injunction. 9 & 10. Constitution of eleemosynary corporations. 11. Trustees of a charity restrained from misapplication of funds. 12-14. Authority of court over spiritual or ecclesiastical corporations. 1. Corporations, civil, ecclesiastical, or of any nature what- ever, have, like individuals, full power at common law to dispose of all the property of which they are seised in fee (a). Unless a trust can be established (6), or unless the corporation itself comes forward to complain of a fraud practised in the management of its own affairs (c),a court of equity has no jurisdiction to interfere. The application of the property qf the corporation to other than corporate purposes is not a ground for the interference of the court unless a breach of trust can be shown (cZ). But if corporate property be affected by a trust, the power and jurisdiction of the court to enforce and execute the trust attaches equally as it does upon other property similarly circumstanced (e).^ The burden of proof (a) Mayor, &c., of Colchester b. Low- Att.-Gen. v. Portreeve of Avon, 33 L. ten, 1 V. & B. 226 ; Evan v. Corpora- J. Ch. 172. tion of Avon, 29 Beav. 144 ; Att.-Gen. (c) Att.-Gen. v. Mayor, &c., of Dub- V. St. John's Hospital, Bedford, 2 D. J. lin, 1 Bligh, N. S. 312 ; Dummer v. & 8. 621. Corporation of Chippenham, 14 Ves. (b) lb.; Att.-Gen. v. Corporation of 245; Mayor, &c., of Colchester «. Low- Cashel, 3 Dr. & War. 314. ten, 1 V. & B. 226; Att.-Gen. y. St. (c) Att.-Gen. v. Corporation <^ B^el- John's Hospital, 2 D. J. & S. 621. fast, 4 Ir. Ch. 119. -. i But the courts of equity very often (d) Att.-Gen. v. Corporation of Car- interfere to restrain corporations from marthen, Coop. 30 ; Mayor, &c., of making use of their funds for a purpose Colchester v. Lowten, 1 V. & B. 226 ; wholly aside of the general object of iParr v. Att.-Gen., 8 CI. & Fin. 409; their Incorporation, and this will be done at the suit of shareholders, although a [690] CH. XXIV.] INJUNCTIONS AGAINST CORPORATIONS. ^570 lies on the party who seeks to establish the trust (/). In Attorney-General v. Corporation of Cashel (^r), where the mem- majority may have sanctioned by their votes the act complained of. 2 Redfleld on Kailways, 326. See Grand Trunk Kailvfay v. Cook, 29 111. 237; Kean v. Johnson,! Stockt. Ch. 401; Winebren- ner v. Colder, 43 Penn. St. 244 ; March v. Eastern Railway, 40 N. H. 548. In the last case it is held the suit should be in form in behalf of all the stockholders ; and in Nazro v. Merchants Mutual Ins. Co., 14 Wis. 295, it is said the capital stock of an incorporated company is a trust fund over which the court has j uris- diction as over other trusts. But a ma- jority may expend surplus funds in the hands of the company, to extend its busi- ness within its chartered powers, and to kindred enterprises beyond its prigi- nal powers if sanctioned by express legislative grant. Pratt v. Pratt, 33 Coim. 446; Durfee v. Old Colony and F. R.R., 5 Allen, 230; Sturges v. Knapp, 31 Vt. 1. As an individual stockholder cannot maintain an action at law against the directors of a corpo- ration for mismanaging its affairs or defrauding it, such directors being the agents -of the corporation and liable only to it, their principal, for their acts, an individual stockholder may main- tain a suit in eq^uity against the direc- tors of a corporation for misconduct in office : where the corporation is unable to bring a suit at law, or where, through collusion or fraud, it neglects to seek redress, and an application has been made to the directors for the use of the corporate name to bring suit and refused, such suit should proceed in behalf of all the stockholders, and make the directors and corporation parties, and should allege the neglect of the corporation to seek redress and the demand refused of the use of the corporate name. Allen v. Curtis, 26 Conn. 456 ; Peabody v. Flint, 6 Allen, 62. See this last case as to what delay in bringing the bill will defeat the plain- tiff's right. As to the duties of direc- tors, see Richards v. New Hamp. Ins. Co., 43 N. H. 263 ; Hall v. Vt. and Mass. Railway, 28 Vt. 401 ; Smith v. Pratt- ville Man. Co., 29 Ala. 503. In the last case it was held that the directors of a corporation would not be compelled to declare dividends out of the surplus earnings of the company unless it was shown that they refused from a wilful abuse of their discretion. In Dodge v. Woolsey, 18 How. U. S. 341, it is stated that courts of equity have a jurisdiction over corporations, at the instance of one or more of their members, to apply preventive remedies by injunction, to restrain those who administer them from doing acts which would amount to a violation of charters, or to prevent any misapplication of their capitals or profits which might result in lessening the dividends of stockholders, or the value of their shares, as either may be protected by the franchises of a corporation, if the acts intended' to be done create what is in the law denominated a breach of trust. And the jurisdiction extends to in- quire into and to enjoin, as the case may require that to be done, any pro- ceedings by individuals, in whatever character they may profess to act, if the subject of complaint is an imputed violation of a corporate franchise, or the denial of a right growing out of it, for which there is not an adequate remedy at law. In this case the direc- tors of a bank refused to take the prop- er measures to resist the collection of a tax upon the bank which they be- lieved to have been imposed upon it in violation of its charter, and it was held to be a breach of trust which entitled a stockholder to maintain a bill against them, asking for such relief as the case might require. The court say, the " refusal upon the part of the directors, by their own showing, partakes more of disregard of duty than of an error of judgment. It was a non-performance of a confessed official obligation, amount- ing to what the law considers a breach of trust, though it may not involve in- tentional moral delinquency. It was a mistake, it is true, of what their duty re- quired from them, according to their own sense of it, but being a duty by their own confession, their refusal was an act outside of the obUgation which the charter imposed upon them to protect what they conscientiously believed to be the franchises of the bank. A sense of duty and conduct contrary to it, is not 'an error of judgment merely,' and cannot be so called in any case. It amounted to an illegal application of the profits due to the stockholders of the bank into which a court of equity will inquire to prevent its being made." (/) Evan V. Corporation of Avon, 29 Beav. 144. (o) 3 Dr. & War. 314. [591] * 571 INJUNCTIONS AGAINST COEPOEATIONS. [CH, XXIT. bers of the corporation had to take an oath against alienation generally, Lord St. Leonards held that a trust not to alienate must be inferred ; but in Evan v. Corporation of Avon (A), where the oath which the members of the corporation had to take was against alienation so as to prejudice the corpora- * 571 tion, the court held that no trust was created, and * that the corporation itself had the power of determining whether a sale was prejudicial or not, and overruled a demurrer to a bill for an injunction to restrain a corporation from selling part of the corporate property, there being no evidence of fraud on the part of the corporation. 2. The court will interfere at the suit of a member of the corporation to prevent the destruction of the corporation {i), or to prevent a forfeiture of the charter (^). 3. If there be a trust and the trust be for public purposes, or the act complained of affects the revenues of the corporation, the suit should be instituted by the Attorney-General at the instance of a relator, who, if he has any interest in the matter, may join as plaintiff (Z). If the Attorney-General declines to interfere, and the parties differ among themselves as to the proper mode of administering the. trust, a certain number may file a bill on behalf of themselves and others, making some of the dissentients and the Attorney-General defendants (m). If the trust be of a private nature, or the act complained of does not affect the revenues of the corporation, the suit must be by bill (n), and the Attorney-General should not be made a party (o). A corporation may itself institute the suit, although the transactions complained of may have been carried into effect in its name by the members of the governing body (p). Where a corporation had not been kept up for a long series of (A) 29 Beav. 144. (m) Lang v. Purves, 8 Jar. N. S. (»') "Ward V. Society of Attorneys, 1 524. Coll. 370. (n) Att.-Gen. v. Forster, 10 Ves. 335 ; {k) Kendall v. Crystal Palace Co., 4 Att.-Gen. v. Newcombe, 14 Ves. 1 ; K. & .J. 327. Davis v. Jenkins, 3 V. & B. 157 ; Car- (l) Att.-Gen. v. Mayor of Dublin, ter v. Cropley, 8 D. M. & G. 681 ; supra, 1 Bligh, N. S..347; Skinners' Co. v. p. 175. Irish Society, 12 CI. & Fin. 425 ; Evan (o) Att.-Gen. v. Newcombe, 14 Ves. V. Corporation of Avon, 29 Beav. 144 ; 1 ; Davis o. Jenkins, 3 V. & B. 157 ; Att.-Gen. v. Portreeve of Avon, 83 L. Att.-Gen. v. Portreeve of Avon, 33 L. J. Ch. 172; Lang v. Purves, 8 Jur. N. J. Ch. 172. S. 524. ip) Att.-Gen. v. Wilson, Cr. & Ph. 1. [692] CH. SXIV.j INJUNCTIONS AGAINST CORPORATIONS. * 572 years to its proper numbers, the court held the corporation itself was not a necessary party (g). 4. The funds and property of all corporations -which are within the Municipal Corporation Act, 5 & 6 Will. 4, c. 76, have been impressed by that act with the character of a trust. The * corporation has been constituted by the * 572 act a trustee for public purposes of the borough fund and property, and is as such subject to the jurisdiction of the court. Although the act contains provisions for correcting abuses in respect of the borough property, there is nothing to exclude the ordinary jurisdiction of the court to prevent breach of trust (r). In Attorney-General v. Corporation of Yar- mouth (s), a corporation was restrained from granting a lease at an undervalue and for a fine, contrary to the provisions of the 95th clause of the act. The court has, it would appear, jurisdiction, upon a proper case being made out, to restrain a municipal corporation from making a rate (i) ; but the proper remedy is to apply to a court of law, either to quash the rate under the provisions of the act, or to apply by certiorari to the Queen's Bench under 7 Will. 4 and 1 Vict. c. 78 (m). 5. Public functionaries or bodies, incorporated by statute for a public purpose or the promotion of a public benefit, may not exceed the jurisdiction which has been intrusted to them by the legislature. So long as they strictly confine themselves within the limits of their jurisdiction, and proceed in the mode which the legislature has pointed out, the court will not interfere to see whether any regulation or alteration which they make is good or bad ; but if, under pretence of an authority which the law does give them to a certain extent, they go beyond the line of their authority, and assume to themselves a power which the law does not give them, the court no longer considers them as acting under the authority (q) Daugars v. Eivaz, 28 Beav. 233. is) 21 Beav. 625. (r) Att.-Gen. v. Corporation of Liver- \t) Att.-Gren. v. Corporation of Lich- pool, 1 M. & C. 201; Att.-Gen. w.As- field, 11 Beav. 121. pinall, 2 M. & C. 613; Att.-Gen. v. (u) Att.-Gen. «. Mayor, &c., of Wigan, Corporation of Poole, 4 M. & C. 17 ; Kay, 268. Att.-Gen. v. Wilson, Cr. & Ph. 1 ; Parr V. Att.-Gen., 8 CI. & Fin. 409. 38 [593] '573 INJUNCTIONS AGAINST CORPOKATIONS. [CH. XXIV. of their commission, but treats them as persons acting without legal authority (a;).^ 6. Municipal corporations dealing with borough funds, *573 and * acting under a general or some local statute, and public bodies or functionaries, incorporated by statute for carrying into effect certain works, are bound to apply the corporate funds for the purposes directed, and in the mode pointed out, by the act which gives them authority, and for no other purpose whatsoever (y).^ The application of the corpo- rate funds to any other purpose than the proper purposes of the act, however desirable it may be, is improper, and will be {x) Frewin u. Lewis, 4 M. & C. 254. See Speer v. Carter, 17 Ves. 216; Armitstead v. Durham, 11 Beav. 556 ; Tinkler v. Wandsworth District Board of Works, 2 D. & J. 261 ; Austin v. Lambeth Vestry, 27 L. J. Ch. 388. See, as to injunctions against trespass and nuisance by public bodies of function- aries, supra, pp. 295, 345. {y) Att.-Gen. v. JWayor of Wigan, Kay, 268, 5 D. M. & G. 54; Att.-Gen. V. Corporation of Belfast, 4 Ir. Ch. 119. 1 The passing of a resolution, by the common council of a municipal corpo- ration, directing one of the departments to give a contract for work and labor to specified persons, is a legislative act, and cannot be restrained by injunction. But after such resolution has been passed, on a proper case being shown for relief, an injunction may issue to prevent the resolution from being car- ried into effect. People v. Mayor, &c., of New York, 32 Barb. 35. And the imposition of any tax or burden on the tax-payers of a city contrary to law will be restrained on a complaint filed by any tax-payer, on his own behalf, as well as on behalf of others similarly situated, or on behalf of any corpora- tor of the city, having an interest in the corporate property thereof, on a similar ■complaint showing an illegal division or application of the corporate property. Wood V. Draper, 24 Barb. 187. But isee, in this connection, Greene v. Mum- ford, 5 R. I. 472. It is a general prin- ciple that the court of chancery is not the proper tribunal to correct the irreg- ularities or errors of inferior tribunals, .and that in ordinary cases it should not interfere with the ordinance of a ■municipal corporation; but there are [594] exceptions, such as to prevent a multi- plicity of suits, or where irreparable damage is the consequence of their execution, or where extrinsic facts are necessary in order to show, not the illegahty or informality of the ordin- ance, but the illegality of its execution against the individual who seeks the protection of this court, and in all cases of fraud. Morris Canal and Banking Co. V. Jersey City, 1 Beasley, 252; Vanoren v. Mayor of New York, 9 Paige, 388; Oakley v. Trustees of Wil- liamsburg, 6 Paige, 262 ; Baldwin v. City of Buffalo, 29 Barb. 396. ^ The passing of a resolution by the common council of a city granting the right which they were forbidden by the injunction to grant, on condition that the grantees should accept the terms of the resolution, was a violation of the injunction by those who voted for it, whether the terms were accepted or not, the resolution itself doing all that the council could do on their part to make the grant effectual. Such an act was not one of municipal legisla- tion, but in substance a grant upon con- dition, and the effect of the injunction could not be avoided by giving to an act not legislative in its character, the form of an ordinance or resolution. So far as such resolution was an executive act, by actually making the grant, it was a clear violation of the injunction, even though the legislative powers of the board could not be arrested by the order of the court. In the exercise of its conceded powers, it was the duty of the board to see that it did not go be- yond them and do an act which had been lawfully forbidden. People w). Whatever relates to the internal management and regulation of the charity rests within the ex- clusive jurisdiction of the visitor. The decisions of the visitor, so long as he keeps within his jurisdiction, are final, and not examinable at law (w) or in equity (d). If the visitor has not acted, or has declined to act in a case where he ought to act, or is about to interfere in a case where he has no jurisdiction, application must be made to the court of Queen's Bench for a mandamus or a prohibition, as the case may be, and not to the court of chancery (p). The court has no jurisdiction to in- terfere with the visitorial power, unless it finds a breach of trust (c[) ; but where there is a breach of trust the court will interfere to see the trusts properly performed, notwithstanding there may be a general or a special visitor (r). Thus, where a French Protestant* Church had been estab- * 576 lished by letters-patent from the Crown, and the gov- erning body had, apart from the charter of incorporation, funds impressed with a trust in favor of the pastor, who, when elected, was presented, approved, and instituted by the Crown, the court, notwithstanding the visitorship of the Crown, re- strained the governing body from hindering the pastor in the duties of his of&ce (s). "Where the duties of the visitor are not confined to overlooking the character of the institution, but extend to the management of the property, he is, so far as there is a trust, subject to the jurisdiction of the court (<)• 10. Eleemosynary corporations are either hospitals, colleges, il) Eden v. Foster, 2 P. Wms. 326 ; (p) Whiston v. Dean and Chapter of Att.-Gen. v. Gaunt, 3 Swn. 148 ; R. v. Eochester, 7 Ha. 532. Catherine Hall, 4 T. R. 233. (?) Att.-Gen. v. Foundling Hospital, (m) King v. Bishop of Ely, 2 T. R. 2Ves. J.43; 7?e Berkhampstead School, 290; Green v. Rutherforth, 1 Ves. 2 V. & B. 134 ; Thompson «. University 462 of London, 33 L. J. Ch. 626. (n) Philipps V. Bury, 2 T. R. 346 ; (r) Att.-Gen. v. St. Cross Hospital, St. John's College v. Toddington, 1 17 Beav. 435. Burr. 200. (s.) Daugars v. Rijaz, 28 Bear. 233. ospital, 2 thies, 2 [597] (o) Att.-Gen. v. Smythies, 2 M. & C. (() Att.-Gen. v. Lock, 3 Atk. 165; 135 • "Whiston v. Dean and Chapter of Att.-Gen. v. Foundling Hospital, 2 Ves. Rochester, 7 Ha. 532; Thompson v. J. 47; Att.-Gen. v. Smythies, 2 M. & University of London, 83 L. J. Ch. 625. C. 185._ * 577 INJUNCTIONS AGAINST CORPORATIONS. [CH. XXIT. or free grammar schools incorporated for the teaching of children (m). Protestant dissenting chapels, incorporated by charter or letters-patent for religious purposes, may be also classed under this head (a;). 11. Trustees of a charity, whether they be a corporation or individuals, having in their hands funds devoted to certain charitable purposes, must devote the funds of the charity to those purposes. The application of the funds to other than such purposes is a breach of trust, and will be restrained (jj'). 12. The visitor of a spiritual or ecclesiastical corporation has the same exclusive right over all matters which come within the scope of his authority as the visitor of an eleemosy- nary one (z). The court of chancery has no jurisdiction over the visitorial power unless it finds a trust («) ; but where there is a trust the court will interfere to see the trust properly performed, notwithstanding there may be a visitor (5). * 577 The relationship in * the ordinary sense of trustee and cestui que trust does not exist between the dean and chapter of a cathedral, and the head-master of a grammar school attached to it, where both the cathedral and the school are governed by the statutes of the founder and are subject to the jurisdiction of a special visitor, and where the head- master is paid out of the common fund of the endowment. Where, accordingly, the Dean and Chapter of Eochester, in exercise of a power vested in them by the statutes of their founder, summarily dismissed the head-master of the grammar school attached to the cathedral from his office without hearing him in his defence, the court refused to interfere by injunction either durante lite, or otherwise, to restrain the dean and chapter from removing him from his office, or from appointing another head-master in his stead (e). (u) Att,-Gen. v. Price, 3 Atk. 108; tm-y, C. P. C. 72; Att.-Gen. ^. Sher- Ex parte Berkhampstead School, 2 V. borne School, 18 Beav. 256. & B. 144 ; Att.-Gen. v. Brazenose Col- (z) Reg. v. Dean and Chapter of lege, 2 CI. & Fin. 296. Chester, 15 Q. B. 513 ; Eeg. v. Dean (x) Att.-Gen. v. Cock, 2 Ves. 273 ; and Chapter of Rochester, 17 Q. B. 1. Att.-Gen. v. Lord Dudley, Coop. 146 ; (a) Whiston v. Dean and Chapter of Att.-Gen. v. Fowler, 15 Ves. 85; Att.- Rochester, 7 Ha. 532. Gen. V. MoUand, 1 Younge, 562 ; Dau- (6) Att.-Gen. t. St. Cross Hospital, gars V. Rivaz, 28 Beav. 233. 17 Beav. 436. (y) Att.-Gen. v. Compton, 1 Y. & C. (c) Whiston v. Dean and Chapter of C. C. 417 ; Att.-Gen. v. Brandreth, ib. Eochester, 7 Ha. 532. 200 ; Att.-Gen. v. Corporation of New- [598] CH. XXIV.] INJUNCTIONS AGAINST CORPORATIONS. * 577 13. Pending a suit respecting the right of nomination to a benefice, a bishop will be restrained from taking advantage of the lapse and exercising the presentation (cf). So, also, where an improper appointment has been made of a chaplain or vicar by persons in whom the appointment is vested, the court will restrain a bishop from instituting the person so appointed (e). 14. By the restraining statutes all ecclesiastical persons are restrained from alienating the possessions of the church for a longer period than twenty-one years from the making thereof (/). (d) Edenborough v. Archbishop of (c) Att.-Gen. v. Bishop of Lichfield, Canterbury, 2 Russ. 93; Att.-Gen. v. 5Ves. 825; Att.-Gen. v. Earl of Powis, Cuming, 2 T. & C. C. C. 139 ; Nichol- Kay, 186. son V. Knapp, 9 Sim. 326 ; Daly v. Arch- (/ ) See further, supra, pp. 264r-267. bishop of Dublin, El. & K. 263. [599] * 578 INJUNCTIONS FOR OR AGAINST [CH. XXV. *578 * CHAPTER XXV. INJUNCTIONS FOR OR AGAINST JUDGMENT CREDITORS. 1. Court will restrain the execution of a judgment. 2. Principles on which court acts. 3. EiFect of judgment under statute of "Westminster. 4 & B. Under other English statutes. 6. Pleading. 7. Effect and operation of a judgment. 8. Debenture holders of a railway company cannot obtain an injunction. 9. Effect of garnishee clauses of Common Law Procedure Act. 10. After filing of trust deed, &c., judgment creditor may not proceed without leave. 11. Judgment not a charge on the fruits of a benefice. 1. A COURT of equity will, on a proper case being made out, interfere by injunction either at the suit of a judgment credi- tor (a), or for the purpose of restraining a judgment creditor from executing his judgment (5). 2. The rights of judgment creditors are purely legal rights, and the interposition of the court in their favor rests upon the principle of aiding the legal right (e). The court will inter- pose its aid for the purpose of removing out of the way any impediments which may exist to the exercise by judgment creditors of their legal rights, or it may interfere for the pres- ervation of property pending disputes at law as to the rights of judgment creditors ((^), or for the protection of property charged by the judgment from injury or destruction until such time as the judgment creditor can have the benefit of his charge (e). The court may also in the exercise of its original jurisdiction in the administration of assets have occa- sion to deal with the legal rights of judgment creditors (/). 3. A creditor does not under the statute of Westminster (a) Smith v. Hurst, 10 Ha. 30. {d) Neate v. Duke of Marlborough, (6) Whitworth v. Gaugain, 1 Ph. 3 M. & C. 421 ; Smith v. Hurst, 10 Ha. 735; Langton v. Horton, 1 Ha. 649; 80. Earl of Shrewsbury v. Trappes, 2 D. P. (e) Godfrey v. Tucker, 83 Bear. 280 ; & J. 172; supra, pp. 21-25. Partridge v. Foster, 34 Bear. 1. (c) Smith V. Hurst, 10 Ha. 30. See (/) Smith v. Hurst, 10 Ha. 30. Benham v. Keane, 3 D. P. & J. 338. [600] CH. XXV.J JUDGMENT CREDITORS. * 579 obtain a charge or lien on the land of his debtor by virtue of his judgment. The statute only gives him the option of obtaining one by issuing an elegit. Until he has exercised his option and sued out an elegit, he has not a complete legal title and cannot come to the court to have the benefit of his charge or lien against the land of his debtor (g-). The court will, it is true, recognize a * title by the judgment in a * 579 suit for redemption or in a suit to administer an estate. But the jurisdiction in such cases is founded upon this, that inasmuch as the court finds the creditor in a condition to acquire a charge on the estate, it cannot deal with the estate without regarding the interest of the person who by issuing an elegit has a right to obtain a charge on it Qi). 4. The Statute 1 & 2 Vict. c. 100, s. 13, makes a judgment duly registered an immediate charge on the lands of a debtor, but declares that the creditor cannot have the benefit of the charge until after the expiration of twelve months from the time of entering up the judgment (i). But in all cases in which the judgment debtor's interest is an expiring interest, or where the judgment debtor is destroying or getting rid of the property charged by the judgment, the creditor can come in the mean time to the court to prevent the thing charged from being diminished or destroyed (Je). A judgment creditor, how- ever, who has sued out an elegit is, notwithstanding 1 & 2 Yict. c. 110, entitled to relief under Edward I. c. 18, though the year from entering up judgment has not expired (J). 5. A judgment creditor is not required by 1 & 2 Vict. c. 100, to issue execution on his judgment, but by 23 & 24 Vict. c. 38, s. 1, it is declared that a judgment shall not be a charge upon land so as to affect purchasers, unless the judgment cred- itor shall issue execution and duly register the writ of execu- tion (m). By a later act, 27 & 28 Vict. c. 112, s. 1, it is (g) BarnwaU v. Barnwall, 3 Ridg. 59 ; Co. v. Bainbrigge, 15 Beav. 146 ; Har- Neate v. Duke of Marlborough, 3 M. & rison v. Pennell, 4 Jur. N. S. 683. C. 421; Smith v. Hurst, 1 Coll. 705, 10 (k) Bristed v. Wilkins, 3 Ha. 235; Ha 30 ; Godfrey v. Tucker, 33 Beav. Watts v. Jefferyes, 3 Mac. & G. 372 ; 280. Yescombe v. Landon, 28 Beav. 80. See (A) Neate v. Duke of Marlborough, Partridge v. Foster, 34 Beav. 1. 3M & C. 421; Godfrey v. Tucker, 33 (I) Partridge v. Foster, 34 Beav. 1. Beav 280 See Smith v. Hurst, 10 Ha. 30 ; God- ii) 'smith V. Hurst, 10 Ha. 30. See frey v. Tucker, 33 Beav. 280. Derbyshire and StaflTordshire Railway (m) Wallis v. Morris, 10 Jur. N. S.741. [601] *580 INJUNCTIONS FOR OR AGAINST [CH. XXV. declared that no judgment entered up thereafter shall affect any land, until such laud shall have been actually delivered in execution by virtue of a writ of elegit, and the writ shall have been duly registered, but that the judgment creditor to whom land has been actually delivered in execution shall be *580 entitled forthwith to have the benefit of his * judg- ment (n). The act does not, however, deprive a judg- ment creditor of his charge who is unable to have the land delivered to him. Where, therefore, mortgagees were about to sell under a power contained in the instrument, the court at the suit of a judgment creditor of the mortgagor, who had sued out an elegit but could not obtain possession of the land under the writ, the legal estate and possession being in the hands of the mortgagees, restrained the mortgagees from paying the surplus to the mortgagor (o). 6. A judgment creditor who seeks the aid of the court, must, y^here it is required by the act under which he sues, show that he has sued out the writ of elegit ovji. fa., the execution of which is avoided, and has registered the same, or the defend- ant may demur (p). 7. A creditor under an execution takes all that belongs to the debtor and nothing more. The judgment operates as a charge upon the beneficial interest of the debtor, and only attaches upon what is at the time it is entered up or afterwards becomes his property. The creditor takes the property subject to every incumbrance to which it was subject in the hands of the debtor. If the debtor has a legal estate, subject to an equity, the judgment will be a charge upon the estate, subject to the same equity. In the case of an equitable estate, it will be a charge upon the equitable estate. A judgment creditor does not by giving notice or taking out a stop-order acquire priority over a prior mortgagee or assignee who has not done so (g'). A judgment creditor, accordingly, will be restrained (n) See Re Isle of Wight Ferry Co., ten, 3 J. & L. 603 ; Anderson v. Kems- 34 L, J. Ch. 194; Re Hull and Hornsea head, 16 Beav. 339 ; Scott v. Hastings, Railway Co., 35 L. J. Ch. 838. 4 K. & J. 633; Kinderley v. Jervis, 22 (o) Thornton v. Finch, 4 Giflf. 515. Beav. 1. See Seymour v. Lucas, 1 Dr. p) Mitf. Plead. 101. & Sm. 177 ; Wickham v. New Bruns- (g) Whitworth v. Gaugain, 3 Ha. wick, &c., Railway Co., 1 L. E. P. C. 425, 1 Ph. 735 ; Breareliff v. Dorring- 64. ton, 4 De G. & S. 124; Abbott v. Strat- [602] CH. XXV.J JUDGMENT CREDITOES. * 581 from executing his judgment against an equitable mortgagee by deposit, although he had not notice of the mortgage at the time he obtained his judgment (r). 8. As between debenture holders of a railway company and judgment creditors, a debenture holder cannot obtain an injunction * to restrain a judgment creditor from suing * 581 out an elegit (s). He may obtain the appointment of a receiver of the tolls of the railway, but he has no charge on the land, estate, and effects of the company. His security is only a charge on the tolls of the undertaking as a living and going concern (f). The right of the receiver to the rates and tolls is paramount to the claims of a judgment creditor under an ele- git. But the latter has a right to have such possession of the land as may avail him subject to the right and interest of the receiver and collector of rates, tolls, and dues, and to the pro- visions of the act of Parliament as to the user of the under- taking for the public (m). He may, under his elegit, take the rolling stock and chattels of the company (a;), but he will be restrained by injunction from taking up the rails or the fixtures (y). 9. The garnishee clauses of the Common Law Procedure Act, 1854, do not give a right of coming into equity in respect of an equitable charge when the debt was not in existence at the time when the order on which the proceeding is founded was made by the common-law judge (s). 10. After notice of the filing and registration of a trust deed for creditors, or an inspectorship, or composition deed under the Bankruptcy Act, 1861 (a), or after a winding-up order, &c., &c. (6), a judgment creditor may not proceed to execution without leave of the court. 11. By 13 Bliz. c. 20, a beneficed clergyman is prohibited and disabled from charging or contracting to charge the fruits of his living, or any part of them, even as against himself. (r) Whitworth v. Gaugain, 3 Ha. (a;) See Gardner w. London, Chatham, 425, 1 Ph. 735. and Dover Railway Co., 2 L. K. Ch. (s) Kussell V. East Anglian Railway Ap. 201. Co., 3 Mac. & G. 104. (y ) Legg v. Mathieson, 2 Giffi 71. (t) Gardnerw.London, Chatham, and (2) Clark w. Perry, IJur. N. b. 992. Dover Railway Co., 2 L. R. Ch. Ap. (a) Supra, p. 107. 20X. (*) Supra, p. 106. (li) Potts V. "Warwick and Birming- ham Canal Co., Kay, 142. [603] * 582 FOB OR AGAINST JUDGMENT CREDITORS. [CH. XXT. The disabilities imposed by the Statute of Elizabeth are not removed by 1 & 2 Vict. c. 110. The judgment creditor of a beneficed clergyman is not entitled to the appointment of a receiver, and an injunction to restrain another judgment credi- tor subsequent to him in date, who has sued out a writ of sequestrari facias upon his judgment, from proceeding *582 to execution on his sequestration (c). *In "White v. Bishop of Peterborough (d), where a third incumbran- cer on a rectory had obtained a sequestration, a receiver was appointed at the instance of the second incumbrancer, and an injunction granted to restrain the party in possession under the sequestration from collecting the rents and profits of the rectory ; but the incumbrance in this case had been created during the years 1803 and 1817, a period during which the Statute of Elizabeth was not put in force (e). (c) Bates v. Brothers, 2 Sm, & G. {d) 3 Sw. 109. 522 ; Hawkins v. Gathercole, 6 D. M. le) See Bates v. Brotliers, 2 Sm. & & G. G. 622. [604] CH. xxtl] injunctions in matters op bankruptcy. * 583 ♦CHAPTER XXVI. * 583 INJUNCTIONS IN MATTERS OP BANKRUPTCY. 1. Where bankruptcy statutes are silent, application must be made to court of equity. 2. Injunctions granted in aid of court of bankruptcy. 3. Division of jurisdiction in bankruptcy matters. i-J. Injunctions by court of bankruptcy. 8. Injunctions against proceedings in bankruptcy. 9 & 10. When court of chancery will restrain sale of bankrupt's property. 11. Injunction against assignees. '■ 1. The court of bankruptcy has to a certain extent an equitable as well as a legal jurisdiction (a). But the equitable jurisdiction of the court of bankruptcy has always been a mat- ter of uncertainty, so far as it is not expressed in the statutes relating to bankruptcy (6). In matters, therefore, connected with bankruptcy, where the bankrupt statutes are silent, application for injunctions should be made to the court of chan- cery (c). The application to the court of chancery must be made by bill and motion in the ordinary way. 2. If an equitable case be made out, the court of chancery will interfere in aid of the court of bankruptcy ; but in the absence of equitable circumstances to found its jurisdiction, a court of equity as distinguished from the chancellor sitting in bankruptcy, will not interfere in aid of the bankruptcy jurisdiction (cZ). 3. What shall be deemed the bankrupt's estate is often a question in which the aid of courts of other jurisdiction than those in bankruptcy is required. It is iui many cases impos- sible to arrive at any safe conclusion upon the question of debt or no debt by any other means than a bill in equity. (o) Ex parte Stephens, 11 Ves. 27 ; (b) Ex parte Boucer, Fonb. 158. Ex parte Hanson, 12 Ves. 347 ; Ex (c) PenneU u. Hoy, 3 D. M. & G. parte Dewdney, 15 Ves. 496 ; Ex parte 135. Eoffey, 19 Ves. 469 ; Ex parte Hilton, (rf) PenneU v. Roy, 3 D. M. & G. 1 J. & W. 470; Ex parte Van Sandau, 137. 1 Ph. 445. [605] * 584 INJUNCTIONS IN MATTERS OP BANKRUPTCY. [CH. XXTI. What, too, is joint or separate estate, whether or not specific property is part of the bankrupt's estate, or wliether the assignees are about to give to one class of creditors property which belongs to another, or whether the creditors are not entitled to proceed in equity to prove that they are creditors upon the estate, are questions that must often be * 584 * decided by other courts (e). When, accordingly, an action at law was brought by assignees in bankruptcy against parties who claimed an equitable lien by deposit of deeds on a lease forming part of the bankrupt's estate, the court restrained the action (/). But as soon as it has been determined what is the bankrupt's estate, the whole adminis- tration of it falls under the jurisdiction of the court of bank- ruptcy. A court of equity has no jurisdiction to interfere in the mere distribution of the estate of a bankrupt, either on the ground of trust or otherwise (^). The court, accordingly, would not interfere at the suit of persons who claimed to be admitted as creditors in respect of a breach of trust which was the subject of a suit in equity to restrain the assignees in bankruptcy from paying any dividend which might be declared until the cause in equity was heard, without reserving a suffi- cient dividend to secure plaintiff's demand Qi). 4. Where a party after the proof of a debt brought an action for the same debt, the court of review had jurisdiction to grant an injnnction restraining the action (i) ; but in Hx parte Boucer (y) the court of bankruptcy refused to restrain a creditor who had proved from proceeding at law for the same debt. In such a case there can be no doubt that a court of equity would interfere (Ic). 5. Injunctions were granted by the court of review to re- strain assignees from proceeding in an action, where there was a good legal defence to the action (T), or where they had not e) Thompson v. Derham, 1 Ha. 373. (i) Ex parte Diack, 2 Mont. & A. / ) Meux V. Smith, 1 M. D. & D. 675; Ex parte Flower, De Gex, 503. 396, 2 M. D. & D. 789. Ij) Fonb. 157. (.9) Thompson v. Derham, 1 Ha. 358 ; (k) See 12 Ves. 846. Haiford v. Gillow, 13 Sim. 44. Comp. (I) Ex parte Pearce, 2 M. D. & D. Cook V. Sturgis, 3 D. & J. 506, 4 Jur. 142; Ex parte Clegg, 3 Dea. & Ch. 505. N. S. 1070. Comp. Atkinson v. Plum- But see Bankruptcy Consolidation Act, mer, Eden on Inj. 298. 1849. (A) Thompson v. Derham, 1 Ha. 358. [606] CH. XXVI.] INJUNCTIONS IN MATTERS OP BANKRUPTCY. * 585 i, an equitable as well as a legal right (m). The court of bank- ruptcy has, perhaps, still jurisdiction to restrain the assignees from suing on a legal title where the assertion of the title would * be against conscience, but there can be * 585 no doubt that a court of equity would in such a case interfere. 6. It seems to be doubtful whether the court of review had jurisdiction to restrain a party whom it had committed for contempt from suing the party who obtained the order for com- mitment in an action for false imprisonment (w). 7. Injunctions have been granted by the court of bank- ruptcy to restrain vexatious litigation (o), to prevent the improper or improvident sale or disposition of the bankrupt's property (p), and to restrain the advertisement of bankruptcy in the Gazette (gf). 8. The court of chancery will not in general interfere with proceedings in the court of bankruptcy, for that court has, to a certain extent, an equitable jurisdiction, and is therefore capable of doing justice between the parties in matters of equity. But the court will interfere if a special case for its interference be made out (r). 9. The court of chancery will, on a proper case being made out, restrain by injunction a sale of the bankrupt's property (s). Assignees under a separate bankruptcy are entitled to deal with the joint property as the solvent partner might himself have dealt with it. Under special circumstances, however, an injunction may be applied for by the solvent partner against the sale of tlie property by the assignees on his offering to account (0- But the application will, it is apprehended, be only granted where a sacrifice is about to be made of the prop- erty ; or there is some irregularity in the sale ; or where the (m) Ex narle Booth, 4 Dea. & Ch. Atkinson, 1 Mont. D. & D. 238. Comp. 211 Re Walsh, 9 Ir. Ch. 16 ; Pike v. Mar- tn) Ex parte Van Sandau, 1 Ph. 448. tin, 7 Jur. N. S. 251. (oj Plower V. Herhert, 2 Ves. 826 ; (?; Ex parte Ketcher, 1 V. & B. Ex parte White, 4 Dea. & Ch. 279; Ex 350; Ex parte Lavender, 1 Mont. & A. parte Davy, ih. 322; Thorpe «. Goodall, 699; Ex parte Wood, 4 Jur. 251; Ex 17 Ves. 393; Ex parte Grant, Buck, yartc Bowers, 1 D. M. & G. 468. 90 ; Re Delahoyd, 11 Ir. Ch. 404. See (r) Supra, p. 153. , ,^ , , ,„, Kirkoatrick v. Dennett, 1 Sim. & St. s) Allen v. Kilbre, 4 Madd. 464. ^8 Comp. Re Walsh, 9 Ir. Ch. 16 ; Pike v. i'p) Ex parte Figes, 1 Gl. & Ja. 122. Martin, 7 Jur. N. S. 251. See £a; parte Montgomery, ib. 339 ; Re (t) AUen v. Kilbre, 4 Madd. 464. [607] * 586 INJUNCTIONS IN MATTERS OP BANKRUPTCY. [CH. XXTI, solvent partner engages to pay over to the assignees the value of the shares of the bankrupt partner in the property offered for sale (m). * 586 10. * The order by the court of bankruptcy for sale of goods as in the reputed ownership of a bankrupt is ex parte, and cannot be discharged upon appeal. The court of chancery has jurisdiction notwithstanding such order to restrain a sale and determine the rights of parties (x). An application by the true owner to the court of bankruptcy to stay proceed- ings is not a bar to a bill for an injunction to stay a sale («/). 11. Assignees in bankruptcy will be restrained at the suit of a judgment creditor whose judgment was entered up pre- viously to the bankruptcy from parting with moneys paid into a bank in the names of the bankrupt and the assignees (s). (u) Deac. Bank, 817. M lb. (x) Mather v. Lay, 2 J. & H. 374. (2) Robinson v. Hedger, 13 Jur. 846. [608] CH. XXVII.J INJUNCTIONS TO RESTRAIN SETTING UP TERMS. * 587 * CHAPTER XXVII. *587 INJUNCTIONS TO RESTRAIN SETTING UP TERMS OR OTHER IMPEDI- MENTS TO THE PAIR TRIAL OP A RIGHT. 1. Cases in which the court have prevented the setting up of impediments to a trial at law, against conscience. 2. But interference of the court depends on what is called good conscience. 3 & 4. Pleading and parties. 5. Injunction not granted on motion. 1. Courts of equity in many cases act as auxiliary to the administration of justice in other courts by removing impedi- ments to tlie fair decision of a question, and preventing a man who possesses an advantage at law from using it against con- science as an impediment to the fair trial of the right. Thus, if an ejectment is brought to try a right to land in a court of common law, a court of equity will restrain the party in pos- session from setting up any title (as, for instance, a term of years or other interest in a trustee, lessee, or mortgagee) which may prevent the fair trial of the right (a). So, also, where a landlord against whom ejectment had been brought had by negligence suffered judgment to go by default, and the tenant had thereupon attorned to the person who had recovered in ejectment, Lord Bldon, upon bill filed by the landlord, re- strained the tenant and the person who had recovered in eject- ment from setting up the lease in any ejectment which the landlord might bring (6), So, also, the court restrained a man, from setting up at law a release which was impeachable on. equitable grounds as an impediment to the plaintiff's recover- ing a fair compensation for injuries which he had received (. Walton, 2 Dick. N. S. 303. 442. [613] * 592 . INJUNCTIONS TO STAT [CH. XXVni. motion, upon the bank operates itself as an injunction against the bank ; but if, after giving notice to tlie bank, the plaintiff does not apply for an injunction, or take further proceedings, the defendant may obtain an order that the bank permit the transfer on a given day, unless in the mean time an injunction shall be granted (¥). 3. By 5 Vict. c. 5, s. 4, the court may upon motion or peti- tion of the party interested, vrithout bill filed, restrain the bank or any public company from permitting the transfer of stock in the public funds, or any stock or shares in any public com- pany, standing in any names in their books, or from paying any dividends due or to become due thereon ; and the order is to specify the amount of the stock or the particular shares, and the names in which the same may be standing (T). A restrain- ing order under the clause operates as an injunction, and is in force until discharged (m). The fact that a party has obtained a distringas under the 5th section does not prevent him from applying for an injunction under section 4 (n). The distringas under section 5 will not be indefinitely continued if no bill be filed (o). 4. When a transfer of stock in the Bank of England is sought to be restrained, the usual mode is to obtain a * 592 distringas against * the bank, which will restrain the transfer for eight days after a request for that purpose by or on behalf of the party in whose name the stock is standing (p). 5. The Bast India Company need not be made party to a suit to restrain the transfer of stock or payment of divi- dends (c[). 6. The Bank of England is not bound to look beyond the legal title to stock. If it looks beyond the legal title and takes notice of the contents of a will, it must do so throughout. It cannot take notice so far and no farther. The bank cannot, (h) Ross V. Sherer, 5 Madd. 458, 6 (o) S. C. 1 Ha. 584. See Set. on Madd. 1. See, as to form of order, Set. Deer. 921. on Deer. 920. (p) Consol. Ord. 27, rr. 1-4 ; Morg. (I) See, as to affidavit, Ex parte Field, Ch. Ord. 491. 1 Y. & C. C. C. 1. (q) 39 & 40 Geo. 3, c. 36, s. 4. See, (m) Ex parte Hertford, 1 Ph. 203. as to East India Co.'s Bonds, issued (n) lb. 129, 203. under 51 Geo. 3, c. 64, s. 4, Glasse v. Marshall, 15 Sim. 71. [614] CH. XXVIII.] WKONGPUL ACTS OP A SPECIAL NATURE. * 593 therefore, restrain an executor from selling out stock and transferring it into his own name (r). "When it is doubtful whether a bequest of stock vests in the legatees as a specific bequest, or whether it vests in the executor, and the bank refuses to transfer it to the executors without proof of the death of the legatees, the executors will not be restrained from bringing an action against the bank, for if the executor cannot maintain an action against the bank, the bank does not want the protection of a court of equity ; if he can maintain an action, then the true construction of the Act 1 Geo. 1, c. 19, ss. 11 &, 12, authorizes or does not prevent the action, and there is no equity (s). 7. (2) The court will, on a proper case being made, interfere to prevent a sale. Thus, trustees have been, under the circum- stances of the case, restrained from selling until it should have been ascertained what would be most for the benefit and wel- fare of the cestuis que trustent (t'). So also where a vendor had power to sell, but it was questionable whether the sale was being made properly in pursuance of the power, the sale was stayed (m). So also where a foreign vessel was driven into Plymouth by stress of weather. Lord Eldon, at the instance of the supercargo and part-owner; granted an injunctioi^ to pre- vent the master from selling the cargo (a;). So also where the representatives of a mortgagor had obtained the mort- gage deeds * from the mortgagee by fraud. Lord Eldon * 593 granted an injunction to restrain the defendants from selling or mortgaging the estate (y). So also any vexatious alienations during the progress of a suit will be restrained (z). Pending an appeal the court will sometimes stay the sale of property directed by the decree to be sold, but if the property consists of personal chattels remaining in the possession of the appellant, he must give ample security for the value (a). (r) Bank of England v. Parsons, 5 (y) Wallis u. Willis, i'6. Ves. 669; TrankUnw. Bank of England, (z) Per Lord Eldon, 4 Dow, 440; 1 Russ. 575. Curtis v. Marquis of Buckingham, 3 V. (s) Bank of England u.Lunn, 15 Ves. & B. 168; Turner v. Wright, 4 Beav. 569. 40; Powell v. Wright, 7 Beav. 444; (t) Wiles V. Gresham, 1 Eq. Rep. supra, p. 535. , „ „ 348. (a) Nerot v. Burnand, 2 Russ. 56; u) Hawes v. James, 1 Wils. Ch. 2. Jenkins v. Herries, Sug. V. & P. 63. x) Delafield v. Guanabens, Dan. Ch. a Pr. 1507. [615] * 594 INJUNCTIONS TO ^TAT [CH. XXTIII. 8. Every trust deed for sale is on the implied condition that the trustees will in the execution of the trust pay equal and fair attention to the interest of all parties concerned, and take care to procure an advantageous sale (6). When trustees for sale had not apprised the owner of their intention to sell, and were about to proceed precipitately to a sale, the court re- strained the sale (c). If a bill is filed for the execution of a trust, a sale cannot be made without the leave of the court (c?). Trustees for sale will not be restrained from selling because they cannot show a good title (e). A trustee for sale may not avoid a fair and unobjectionable contract by entering into a subsequent contract for a higher price. When a vendor sells to A., and then sells to B. with notice, and B. does some act to interfere with A.'s right, the court will restrain B. as well as the vendor (/). 9. The court has no jurisdiction to restrain a mortgagee from % selling under his power of sale, provided he keeps within the terms of the power, and no ease of fraud can be made out. Unless there be fraud or special contract, a mortgagee will not be restrained from selling (^). to. When the thing about to be sold is in the nature of a specific chattel, which cannot be the subject of compen- * 594 sation by damages, * as where the defendant was about to sell diamonds to which the plaintiff claimed title, he was restrained by injunction (A). So also when a chattel necessary for conducting a particular business is in the posses- sion of persons who claim a lien upon it, and threaten an immediate sale, the court has jurisdiction to interfere by in- junction and prevent irreparable injury to the debtor by giving him an opportunity of redeeming it (i}. A man, however, who has put a fixed price on a specific chattel, cannot be heard to say that damages at law would liot be a sufficient remedy (¥). (6) Anon., 6 Madd. 10 ; Roberts v. . (i^) Tonnins v. Prout, 1 Dick. 387. Bozon, 3L. J. Ch. 113. See Fells v. Read, 3 VeS. 70; Lady (c) Anon., 6 Madd. 10. Arundell v. Phipps, 10 Ves. 140; Ridg- (rf) Walker w. Smallwood, Amb. 676. way v. Roberts, 4 Ha. 106; Palcke v. (e) Roberts v. Bozon, 3 L. J. Ch. Gray, 4 Drew. 651. 113. (i) North v. Great Northern Railway (/) Goodwin v. Fielding, 4 D. M. & Co., 2 Giff. 69. G. 90. {k} Dowling v. Eetjemann, 2 J. & H. (g) Cockell D. Bacon, 16Beav. 158; 544. supra, pp. 191-192. [616] CH. SXVIII.] WRONGFUL ACTS OP A SPECIAL NATURE. * 595 If a fiduciary relation exists between tlie parties, the right of a man who intrusts goods to another to be protected in the beneficial enjoyment of his property in specie is not confined to articles possessing any peculiar or intrinsic value. Whatever the description of the chattels may be, the court will interfere to prevent a sale either by the party intrusted with the goods, or by a person claiming under him through an alleged abuse of power (I'). An agent, accordingly, was restrained from parting with the possession of furniture and household effects by which the plaintiff's title would be embarrassed (m). 11. The court will not, unless a trust can be made out, restrain the sheriff from selling the goods of a man found upon the land of a person against whom execution had issued upon a judgment at law (n). 12. Neither will an injunction be granted to restrain a vol- untary settlor of freehold, copyhold, or leasehold estate from affecting the settlement by a subsequent sale (o). 13. Where a vessel has become unable to proceed on her voyage without repairs, the owners of goods shipped on board the * vessel may obtain the assistance of the *595 court to restrain the captain from selling the cargo. But before the court will grant such assistance, the plaintiffs must show their title to the goods, and must settle T^ith the captain for what is due to him, and must exonerate the captain from his contract to deliver the goods at the place of destination, and from all liability on the bills of lading ( ^) . 14. Where the judicial sale of a mortgaged estate has been effected under the process and judgment of a court of com- petent jurisdiction in a colony, and no case of fraud iS made out, equity has no jurisdiction to interfere by injunction (g'). 15. (3) If there is danger that a negotiable instrument fraudulently, or improperly, or illegally obtained, or which ought (/) Wood V. Eowcliffe, 3 Ha. 306, 503 ; supra, p. 172. If a case of equit- 2 Ph. 382. See Pooley v. Budd, 14 able lien can be shown, the court will Beav. ~S4: ; Pollard v. Clayton, 1 K. & restrain the sale of the property until J 462 the hearing. Blakeley v. Dent, 15 W. ' (m) Wood V. RowcUffe, 3 Ha. 306, 2 E. 663. Ph. 382. . (p) Rayne v. Benedict, 10 L. J. Ch. (n) Garstin w. Asplin, 1 Madd. 151 ; 297. Jackson V. Stanhope, 15 L. J. Ch. 446. (?) White v. Hall, 12 Ves. 321. Comp. lo) Pulvertoft V. Pulvertoft, 18 Ves. Lord Cranstown o. Johnstone, 3 Ves. 84. Comp. Bill V. Cureton, 2 M. & K. 182, 5 Ves. 277. [617] * 596 INJDNCTIONS TO.STAT [CH. XXVIII. not to be negotiated, will get into the hands of a bond fide holder without notice, and for valuable consideration to the prejudice of the maker or acceptor, or persons interested in it, the court will interfere to restrain the negotiation, assignment, or indorse- ment of the instrument, and will order it to be delivered up (r). 16. In Bank of England v. Anderson (s), an injunction was granted at the suit of the bank to restrain a banking company, carrying on the business within the distance of sixty-five miles from London, from accepting a bill of exchange payable at less than six months from the time of giving such acceptance (f). 17. (4) The court will, upon a proper case being made out, restrain a man from parting with property and appropriating it to his own use (m) ; from parting with bills of lading (a;) or moneys (2/) ; from parting with documents in his pos- * 596 session belonging to the * plaintiff, and from preventing the plaintiff and his solicitor from having access to the documents at reasonable times after reasonable notice («) ; from preventing the delivery of deeds (a) ; from delivering up goods to another (6) ; from paying moneys (c) ; and from receiving (tZ), applying for (e), or executing any power of attorney enabling a person to receive moneys (/). A debtor who is colluding with the executor will be restrained from paying his debt to him (^). So, also, upon bill filed by a creditor against the executors, heir and purchaser of real estate, charged with the payment of debts, an injunction was granted to restrain the (r) Smith v. Haytwell, Amb. 66, 3 United States v. Prioleau, 11 Jur. N. S. Atk. 566 ; Patrick v. Harrison, 3 Bro. 792. See, as to stoppage in transitu, C. C. 476 ; Lloyd v. Gurdon, 2 Sw. 180 ; Goodhart v. Lowe, 2 J. & W. 349 ; Mele- Hood V. Aston, 1 Euss. 412 ; v. topulo v. Ranking, 6 Jur. 1095 ; New- Bozon, 3 L. J. Ch. 57 ; Sliarp v. Arbuth- ton v. Hubback, 2 W. R. 339 ; Straker not, 13 Jur. 219 ; Green v. Pledger, 3 v. Ewing, 34 Beav. 147 ; Schotsman v. Ha. 166 ; Simons v. Gridland, 5 L. T. Lancashire and Yorkshire Railway, 2 N. S. 523. , L. R. Ch. Ap. 332. (s) 2 Keen, 328. (c) Dalmer v. Dashwood, 2 Cox, (() See Bank of England v. Booth, 378 ; Hawkshaw v. Parkins, 2 Sw. 549. ib. 466, 7 CI. &Kd. 509. (rf) Knight v. Knight, 4 W. R. 771 ; (w) Malcolm v. Scott, 3 Ha. 39; Lloyd v. Eagle, 28 L. J. Ch. 389; Zulueta V. Sieveking, 11 L. T. 449. Knight v. Bulkeley, 27 L. J. Ch. 592. {x} Lidgett V. Williams, 4 Ha. 456 ; (e) Lloyd v. Eagle, 28 L. J. Ch. 389. United States w. Prioleau, 11 Jur. N. S. (/) Knight v. Bulkeley, 27 L. J. 793. Ch. 592 ; Lloyd v. Eagle, 28 L. J. Ch. {y) Marsh v. Peacocke, 9 Jur. N. S. 389. 789. ig) See Benfield v. Solomons, 9 Ves. z) Goodale v. Goodale, 16 Sim. 316. 77 ; Saxton v. Davies, 18 Ves. 72; Lan- a) Constable v. Rogers, 3 L. T. 261. caster v. Evors, 4 Beav. 158 ; Burrowes b) Manlove v. Carter, 12 L. T. 169 ; o. Gore, 6 H. L. 925. ^ [618] CH. XXVIII.] -WRONGFUL ACTS OP A SPECIAL NATURE. * 597 purchaser from paying the purchase-moneys to the heir upon whom the estate had descended (A) . Upon the same principle it is probable that a purchaser would be restrained from paying the purchase-moneys to a devisee, for the statute of fraudulent devises places the devisee and the heir in the same situation, making them personally responsible after alienation of the estate, and discharging bond fide purchasers without notice from liability (^). In Glasse v. Marshall (Jc), the Bast India Company were restrained from paying over the principal and interest secured upon Bast India bonds to a person who had wrongfully obtained possession of them, or to any other person than the lawful owner of them. 18. Although the court has no jurisdiction to interfere with the sovereign acts of a foreign government, or to make a decree against a foreign ambassador who does not submit to the jurisdiction (Z), * an injunction may be had restrain- * 597 ing a third party from handing over to a foreign ambassador a fund, the right to which is in dispute (m). 19. A husband will, on a proper case being made out, be restrained from transferring property in fraud of the equi- table rights of his wife (n). 20. (5) The court will, upon a proper case being made out, restrain commissioners from enrolling an award (o). So also, it is a well-settled head of equitable jurisdiction to interfere so as to remove the effect of a void instrument, or the registration of an affidavit which appears to create a cloud upon title Qp)} 21. (6) The court will, upon a proper case being made out, restrain a husband from preventing his wife from seeing a per- son whom she wishes to consult (c[) ; from disposing of or (h) Green v. Lowes, 3 Bro. C. C. 2 Sw. 157; Hone v. O'Flahertie, 9 Ir. 217. Ch. 119, Story, Eq. Jur. 700. (t) Matthews v. Jones, 2 Anst. 506, (?) Middleton v. Middleton, 1 J. & Sug. V. & P. 656. W. 94. (k) 15 Sim. 71. ' Sullivan v. Finnegan, 101 Mass. m Supra, p. 3. 447 ; Clousten v. Shearer, 99 Mass. 209 ; \m) Gladstone v. Musurus Bey, 1 H. Williams v. Fitzhugh, 37 N. Y. 448. & M. 495. ^or the citation of authorities settling (n) Anon., 9 Mod. 43 ; Roberts v. the question that courts of equity have Roberts, 2 Cox, 422 ; Flight v. Cook, 2 jurisdiction to remove a title or claim Ves. 619 ; Cadogan v. Kennett, Cowp. which may operate as a cloud upon the 432, 436. title of the owner, and from which an in- io) Foster v. Hornsby, 2 Ir. Ch. 426. jury to him might reasonably be feared, ' Davis V. Duke of Marlborough, see Tucker v. Kenniston, 47 N. H. 270. [619] K * 598 INJUNCTIONS TO STAT [CH. XXVIII. intermeddling with the wife's separate estate (r) ; from assign- ing, transferring, or in any way disposing of any part of her property which falls under the dominion of the .court during the coverture, until a proper settlement should be made on her(s), or pending a suit instituted by her in the Divorce Court for declaration of nullity of marriage (<). Where per- sonal chattels were bequeathed to a single woman for life for her separate use, without the intervention of a trustee, upon their being seized in execution by a judgment creditor of an after-acquired husband, who was, in fact, at law entitled to such chattels, but in equity only as a trustee for his wife, an injunction was granted to restrain a sale (m). But equity will not interpose in prejudice of the legal rights of a husband over his wife's property, if such property can be made available without resorting to a court of equity (w). * 598 22. * The court will not interfere at the suit of a creditor of a wife divorced from her husband, and enti- tled to alimony under a sentence of the court, to restrain the husband from paying over her alimony to her (x). 23. (7) Where it appears that an infant ward is about to make a marriage without the consent of the court, an injunc- tion will be granted not only to restrain the marriage, but also all communication with the infant, and all intercourse, either personal or by letter; and if the guardian is suspected of countenancing the intended marriage, he will be restrained from permitting the marriage or giving his consent without the leave of the court («/). If the infant about to contract an improper marriage has no property, or is not a ward of court, his parent may, by settling a small sum of money for his or her benefit, in order to give the court jurisdiction, and filing a bill for the execution of the trusts of the settlement, obtain an injunction to restrain the other party, with whom marriage is M Green v. Green, 5 Ha. 400, n. (x) Vandergucht v. De Blaquiere, 8 (s) Roberts v. Roberts, 2 Cox, 422 ; Sim. 315. Ellis V. Ellis, 2 Coo. C. C. 234. See (y) Lord Raymond's case, Ca. T. Osborne v. Morgan, 9 Ha. 432. Talb. 58 ; Smith v. Smith, 3 Atk. 307; (t) Sealey v. Gaston, 13 W. R. 677. Beard v. Trayers, 1 Ves. 313 ; Roach v. See Caldicott v. Baker, ib. 449. Garvan, 1 Dick. 88, 1 Ves. 157 ; Pearoe (u) Newlands v. Paynter, 4 M. & C. v. Crutchfield, 14 Ves. 206 ; Warter v. 408. York, 19 Ves. 454. («) 1 Roper on Husb. and Wife, 257 ; Osborne v. Morgan, 9 Ha. 432. [620] CH. XXTIII.] WRONGFUL ACTS OP A SPECIAL NATURE. * 599 contemplated, from marrying the plaintiff, or having any com- munication with him or her, as the case may be (2). 24. (8) The court may also, on a proper case being made out, deprive a father in cases of immorality, cruelty, ill treat- ment, &c., of his legal right to the custody of his children (a). Children will not be removed from their father merely because he is poor, or unable to maintain them (6), or on the ground that it would be most for their welfare and benefit (c). , Mere acts of harshness or severity of a father, such as are injurious to the health of the children, or the fact of a somewhat passion- ate temper, are not sufficient ground for removing the children from his custody. To warrant the removal of children from the custody of their * father, a case must be made * 599 out either of moral turpitude, or such a degree of cruelty as to render him unfit to have the management of them (cf). The fact that a father is living in adultery with a woman is not a sufficient ground to induce the court to deprive him of the custody of his children, where no misconduct on his part is shown with reference to the management and education of the child (e). Parents have in several cases been restrained from taking their children abroad, or interfering in any manner with their education (/). The court will not interfere with the dis- cretion of a foreign guardian who has been appointed by a court of competent jurisdiction (^). 25. (9) Although the court has no jurisdiction to interfere with the public duties of any of the departments of government, it will, on a proper case being made out, restrain a department of government from doing a merely ministerial act. Thus, the lords of the treasury were restrained by injunction from pay- ing over certain moneys to a man, there being a doubt as to (z) Dawson v. Thompson, 12 L. T. (c) Re Curtis, ib. N. S. 178. See Gynn v. Gilbard, 1 Dr. {d) Ib. ; Blake v. "Wallscourt, 7 L. T. & Sm. 356 ; Biddle v. Jackson, S6 Beav. 545. 282. (e) Ball v. Ball, 2 Sim. 35. (a) "Wilcox V. Drake, 2 Dick. 631; (/) Ex parte Warner, i Bro. C. C. Bowel V. Cleaver, 2 Bro. C. C. 499 ; 101; Creuze v. Hunter, 2 Cox, 242; Whitfield V. Hales, 12 Tes. 492 ; Shel- De Manneville v. De Manneville, 10 ley V. Westbrooke, Jac. 266, n. ; Re Ves. 52. See Biggs v. Terry, 1 M. & England, 1 R. & M. 499 ; Anon., 2 Sim. C..675 ; Campbell v. Mackay, 2 M. & N. S. 69. C. 81. ^ ^ .,, (h) Re Fynn, 2 De G. & S. 457 ; Re {g) Nugent v. Yetzera, 2 L. B. Eq. Curtis, 28 L. J. Ch. 458. 704. [621] * 600 INJUNCTIONS TO STAY [CH. SXVIII. the persons who were really entitled to them (A). So, also, it was held that the court had jurisdiction to examine and enforce the equities with which a man receiving moneys under an adjudication by the commissioners Tor the settlement of French claims might be affected (t). So, also, the jurisdiction has been sustained against the secretary for war (Jc').^ 26. (10) Where a sequestration has been issued by the court of chancery for non-performance of a decree or order, and the defendant refuses to deliver possession to the seques- trator, an injunction will be awarded to cause possession to be delivered up (Z). The order that an injunction shall * 600 issue is of course (m). *If the order for delivery of possession be disobeyed, a writ of assistance will be issued to the sheriff to put the sequestrator in possession (w). The affidavit in support of an application for a writ of assist- ance need not show an existing non-compliance with the order to be enforced (o). 27. (11) The court has jurisdiction upon a proper case being made out to restrain tlie sailing of a ship. If the shares in the vessel are ascertained, and the only point in question is whether the majority of the part-owners should take the ship away without giving security to the minority for the value of their shares, the court will not interfere, for the court of admiralty can do justice in the matter (^). The fact that a part-owner may be entitled to an account of the part-earnings of the vessel is not a sufficient ground for the interference of the court (^q~) . But if the shares are unascertained and their respective amount is a subject of dispute between the parties, the court will entertain jurisdiction on the ground of the defi- (h) Ellis V. Grey, 6 Sim. 214. See Consol. Ord. XXIX. r. 5. See Em- Kankin v. Huskisson, 4 Sim. 13. pringham v. Short, 3 Ha. 461 ; East ii) Hill V. Eeardon, Jac. 84, 2 Russ. India Co. v. Kynaston, 3 Bligh, 153, 630. 165. (k) Felkin o. Herbert, 30 L. J. Ch. (o) Webster v. Taylor, 18 Jur. 869. 604 ; supra, p. 348. See, as to form of writ, Seton on Deer. {I) Bird V. Littlehales, 3 Sw. 300, n. 1228 ; as to practice, see Ayck. Ch. Pr. See East India Co. v. Kynaston, 3 223 ; Morgan, Ch. Ord. 497. Bligh, 153, 165. (p) Castelli v. Cook, 7 Ha. 89; Hal- (m) Huguenint). Baseley, 15 Yes. 180. laran v. Donal, 9 Ir. Eq. 219. See, as to writ of sequestration, Tatham (q) Castelli v. Cook, 7 Ha. 89. V. Parker, 1 Sm. & G. 506. i A state comptroller was re- (n) Bird v. Littlehales, 3 Sw. 299, n. ; strained from selling a railroad to the Huguenin v. Baseley, 15 Ves. 180; prejudice of bond-holders. Darby v. Barkley v. Barkley, Set. on Deer. 1229, Wright, 3 Blatchf. C. C. K. 170. [622] CH. XXVIII.J WRONGFUL ACTS OP A SPECIAL NATURE. * 601 ciency of the powers of the court of admiralty to ascertain what the shares of the parties are, and will restrain the sailing of the vessel until the share of the party complaining shall be ascertained and security be given for the amount of it (r). So also the court will at the suit of a shipper of goods, the delivery of which is not complete, restrain the vessel from sail- ing with the goods on board (s). The court will be much dis- inclined to grant an injunction to restrain a man from taking his ship to any other than a certain port, thereby in effect com- pelling him to proceed to such port(^). A party who seeks to restrain a vessel from sailing must use due diligence in making the application. Where the application was made the day before she was to sail, and there were no circum- stances * shown to account for the delay, the court * 601 would not interfere (m) . 28. The owner of a vessel will be restrained from doing any act inconsistent with the charter-party (a;). 29. The legal right to receive the freight of a vessel being in the captain, the court will not in the absence of an allega- tion, and proof that he was about to misapply it, restrain him from receiving it («/). 30. The 17 & 18 Vict. c. 104, s. 65, does not prevent the court from protecting the property in a ship during litiga- tion (s). There are many cases in which the owners of a vessel may be entitled to the assistance of the court ; as, for instance, where the ship is under engagements of which the threatened conduct of parties would prevent the fulfilment, or where damages would not be an adequate compensation, and in which justice would not be done except by protecting in specie the interests of the owner of the chattel (a). (r) Hair v. Goodson, 2 Mer. 79; (y) Guion u. Trask, 1 D. F. & J. CasteUi v. Cook, 7 Ha. 89. See Ridg- 373. way V. Eoberts, 4 Ha. 106. (2) Orr v. Dickinson, John. 1. See (s) Newton v. Hubback, 2 W. R. supra, pp. 96, 150, as to the Merchant 339; but see Goodhart v. Lowe, 2 J. & Shipping Acts. yf_ 349. (o) Per Wigram, V. C, 4 Ha. 116. It) Lidgett V. Williams, 4 Ha. 465. See, as to the duty of a mortgagee of a m) Christie v. Craig, 2 Mer. 137 ; vessel in dealing with it, Marriott v. Hallaran v. Donal, 9 Ir. Eq. 219. Anchor Reversionary Co., 3 D. F. & J. (x) De Mattos v. Gibson, 4 D. & J. 177 ; see, also, as to injunction to re- 276 ; Sevin v. Deslandes, 30 L. J. Ch. strain the captain from selUng the 457 ; Messageries Impe'riales v. Baines, cargo, supra, p. 595. 11 W. R. 322. See further, supra, pp. 526, 527. [623] * 602 INJUNCTIONS TO STAT [CH. XXTIII. 31. (12) The court has jurisdiction upon a proper case being made out to restrain presentation or induction to an ecclesias- tical benefice (J). Lord Eldon said incidentally that he should not hesitate to interfere by injunction and appointment of a receiver in a case where it was clear that a party had obtained an estate comprehending an advowson by fraud (c). So also, where an advowson is the subject of a mortgage, the court would probably restrain the mortgagee from presenting, upon the same principle that it compels the mortgagee to nominate such person as the mortgagor shall appoint (ci). In * 602 Nicholson v. * Knapp (e), a patron was restrained from presenting, and the bishop of the diocese from institut- ing, or in the case of a lapse taking place from collating to the living any clerk pending a suit for specific performance. So also an archbishop was restrained from collating by way of lapse to a deanery pending a suit in the ecclesiastical court respecting the presentment by the chapter (/). So also upon the principle of preserving property pending litigation, the court will, in a suit to impeach the conveyance of an advowson, restrain the institution of a clerk even as against a defendant claiming to be a purchaser for value without notice (^). In a case where the presentation of a living was vested in trustees, but by neglect the number of trustees was not filled up at the time of avoidance, the court would not restrain the heir-at-law of the surviving trustee from presenting (A). 32. (13) It is doubtful whether the court has jurisdiction to enjoin against an extent (i). 33. (14) The coiirt will, on a proper case being made out, restrain the managing committee of a railway company from acting on an order for payment out to them of a sum deposited by them in the name of the said company in the bank in com- Ib) Potter V. Chapman, Amb. 98. 292 ; Bowling v. Maguire, LI. & G. (c) 16 Ves. 70. temp. Plunk. 1. (rf) Amhurst o. Dawling, 2 Vern. (A) Att.-Gen. v. Bishop of Lichfield, 401 ; Gardiner v. Griffith, 2 P. W. 404 ; 5 Ves. 824. See, as to advowsons Mackenzie v, Robinson, 3 Atk. 559 ; rested in trustees, Edenborough v. Gubbins v. Creed, 2 Soh. & Lef. 214, Archbishop of Canterbury, 2 Russ. 93; 218. Att.-Gen. v. Cuming, 2 Y. & C. C. C. (e) 9 Sim. 326 ; supra, p. 577. 139 ; supra, p. 173. See, as to advow- (/) Daly V. Archbishop of Dublin, sons vested in tenants in common, Fl. & K. 263. Johnston v. Baber, 25 L. J. Ch. 899. {g) Greenslade v. Dare, 17 Beav. 503. (i) Whitehouse v. Partridge, 3 Sw. See WyTill v. Bishop of Exeter, 1 Price, 376. [624] CH. 2XYIII.] WRONGFUL ACTS OP A SPECIAL NATURE. * 603 pliance with the standing orders of the House of Commons (/c). The injunction may be granted by a different judge than the one by whom tlie order was made (l}. 34. (15) When by the rules of a society a salaried officer is bound to pay moneys received by him by virtue of his office to the treasurer of the society and he retains moneys in dis- charge of the arrears of his salary alleged by him to be due, the court will restrain him from further acting as such salaried officer (m). 35. * (16) An injunction may be had to restrain a man * 603 from opening letters addressed to another (n). Primd facie all letters must be taken to be intended for the person to whom they are addressed, but if the person to whom they are addressed is the secretary of a company, the company may open such letters as appear from some other indication than the mere address to be intended for them. Letters not bearing any such indications may not be opened by the company except in the presence of the person to whom they are addressed (o). 36. The court has no jurisdiction to restrain the Postmaster- General from delivering letters at a certain address (p). 37. (17) A court of law or equity has the power to prohibit the publication of proceedings which -are pending in all cases where the interests of justice are likely to be injuriously affected by their publication (c[). But it is in each case a matter for tlie discretion of the court whether or not it will interfere. The court will not restrain every report in the columns of a news- paper which may appear to be unfair in any respect (r). If however the case is one in which the court feels it ought to interfere, it is no excuse that the publication may have been by defence, and in answer to similar publications by the other side, although it may excuse the party sought to be restrained from the costs of the motion for that purpose (s). (it) Goodman v. De Beauvoir, 4 Ea. (p) lb- Ca. 381 ; Castendieck v. De Burgh, ib. (q) Anon., 2 Ves. 520 ; R. v. Clement, 386 15 L. J. Ch. 425. 4 B. & Aid. 219 ; Brook v. Evans, 29 (/) Castendieck v. De Burgh, ib. L. J. Ch. 616 ; Coleman v. West Hartle- m) Shaw v. Hill, 9 Jur. 821. pool Railway Co., 8 W. R. 734. \n) Scheile v. BrakeU, 11 W. R. 796 ; (r) Brook v. Evans, 29 L. J. Ch. Bdgington v. Edgington, 11 L. T. N. S. 616. w * xx « tj -i 299. (s) Coleman w. West Hartlepoo Rail- (o) Stapleton v. Foreign Vineyard way Co., 8 W. R. 734. Association, 12 W. R. 976. 40 [625] * 604 TO STAT WRONGFUL ACTS OP SPECIAL NATUEE. [CH. XXVllI. 38. (18) There was formerly a practice of granting injunc- tions to quiet tlie possession until the hearing. The object of this species of motion was to restrain the party against whom the application was made from taking forcible possession of the premises pending the litigation ; or if forcible possession had been taken to avoid it. To obtain this order it was required by analogy to the statutes of forcible entry that the party applying should have had peaceable possession of the premises for * 604 the space of * three years before the filing of the bill (<). The practice has fallen entirely into disuse in England. There has been no instance of such an injunction since the case of Hughes v. Trustees of Modern College (m). In that case Lord Hardwicke granted an injunction to restrain the commissioners of a turnpike road from forcibly entering upon garden ground and digging gravel. His lordship treated it as a case of destructive trespass, and expressly said that " there was a remedy at law, but that would be only for the wrong done, and not equal to the remedy in equity." The establish- ment of the jurisdiction of the court in cases of destructive trespass seems to have been the cause of the disuse into which this practice has fallen (a;).^ (i) Hawkes v. Champion, Gary, 51 ; v. Ford, 23 Ark. 746 ; Low v. Staples, Dowche V. Perrott, ib. 63 ; Sapcote v. 2 Nev. 209. It is proper, if not abso- Newport, ib. 66. lutely necessary, that the defendant (u) 1 Ves. 187. should specially plead all matters in (x) See further on the subject, Eden confession and avoidance of the com- on Injunctions, pp. 332-335. plaint. Bunch v. Bunch, 20 Ind. 400. 1 In Texas it is held that a party "Where a widow knowingly permits a who has held adverse possession of purchaser to part with his money for land for the period prescribed by the real estate, under the assurance that statute of limitations, may maintain an the land is free from her claim of dower action founded on the title thereby ac- therein, and she accepts and enjoys the quired to be quieted in the possession use of the whole purchase-money as a and to remove clouds from such title, bequest under the will of her husband, Moody V, Holcomb, 26 Texas, 714. As such acts on her part constitute an to injunctions to remove a cloud from estoppel en pats, and she will not be per- a title, see Walker v. Peay, 22 Ark. mitted to set up a claim to dower in 103 ; Standish v. Dow, 21 Iowa, 863 ; said premises, and she will be enjoined Butler V. Eutledge, 2 Cold. (Tenn.) from proceeding to obtain possession of 4 ; Stout V. Cook, 37 111. 283. A city the premises. Wood v. Seely, 32 N. may maintain a suit in equity to quiet Y. 105. It has been held that a grantee its title to land alleged to have been can maintain a suit to enjoin the sale dedicated by the defendant as a pub- of the granted premises on execution lie square. Pella v. Soholte, 21 Iowa, against the grantor, because such sale, 463. As to the possession of the com- though invalid, would cloud his title, plainant necessary in order to majn- England v. Lewis, 25 Cal. 337. 'tain a bill to quiet title, see Apperson [626] CH. XXIS.] IN WHAT MANNER INJUNCTIONS ARE OBTAINED. * 605 * CHAPTER XXIX. * 605 PEACTICE. SECTION I. —IN WHAT MANNER INJUNCTIONS ARE OBTAINED. 1. Injunction not granted, except on bill filed. 2-5. Exceptions to rule. 6. Injunction must be specifically prayed by the bill. 7. Injunction may be obtained by bill or information, or administration summons. 8. May be obtained on petition. 9. May be obtained at any stage of the proceedings and in vacation. 10. Ex parte application. 11 & 12. Filing and service of bill. 13. Name of person not to be used without authority as next friend or relator. 14-18. Service of notice of motion. 19-21. Form and requisites of motion. 22. Ex parte application may be made at any time. 23. Affidavits. 24. By whom made. 25. Title of affidavits. 26-28. Form of affidavits. 29. Affidavits on ex parte application. 30. Affidavits must be filed and office copies in court. 31-33. Time of filing affidavits. 34. Copies of affidavits when to be furnished. 35 & 36. Evidence after notice opened. > S*!. Order in which motions are taken. 38. Effect of amendment on notice of motion. 39. Security for costs. 40. Hearing the motion on affidavits. 41 & 42. Principles governing the court in granting application. Cross-examination of witnesses. 48. Case made out must correspond with allegations of bill. Relief prayed must bo consistent with the case made out. 44. Injunction not granted pending demurrer. 45. Nor pending plea on reference to scandal. 46-49. Interim order. Practice in reference thereto. 50-54. Undertaking as to damages. 55. Payment of moneys into court. 56. Terms may be imposed on defendant. 57. Motion for injunction may be turned into motion for decree. [627] * 606 PEACTICE. [CH. XXIX. 58. Where injunction is granted motion may be made to advance cause. 59. Declaration of the rights of the parties on the motion. 60. Form of orders. 61 & 62. Against whom injunctions are awarded. 63. Service of notice of injunction. 64. Injunction how prepared. 65. Service of injunction. 1. The -writ of injunction issues pursuant to order, and will not in general be granted except upon bill filed (a), and except the party against whom it is prayed is a party to the suit (6). Thus where a bill was filed by a seller for specific performance, and an injunction was moved for to restrain the purchaser from proceeding at law to recover the deposit from the seller's at- torney, to whom it was paid, the motion was refused with costs, the attorney not being a party to the suit (c). 2. There are, however, certain exceptions to the general rule. Where, for instance, a decree has been made against an executor for the administration of assets, an injunction may be had on motion in the suit at the application either of the executor, or of the heir, or of a creditor, to restrain another creditor from proceeding at law (dl). So also after the court is in full posses- sion of a cause, a man will be restrained upon motion in the suit from proceeding at law in respect of the same matter (e). So also a man who has purchased under a decree will * 606 be restrained * from acting contrary to the spirit of the decree, although not a party to the suit (/). So also a tenant holding under a receiver will be restrained on motion, though not a party to the, suit (^). The attorneys, agents, servants,. and workmen of a party enjoined may be enjoined although the bill and notice of. motion may only ask for an (a) Savory !). Dyer, Amb. 70; Wright v. Ooppard, 29 Eeav. 4. Comp. Ham- V. Atkyns, 1 V. & B. 313 ; Wood v. mond v. Maundrell, 6 Ves, 772 a, n. ; BeadeU, 3 Sim. 273 ; Blomfield v. Cholmondeley v. Clinton, 19 Ves. 261. Eyre, 8 Beav. 250 ; Eussell v. London, (c) Brown v. Frost, Sug. V. & P. Chatham, and Dover Railroad Co., 4 229, n. Giff. 404. See Ee Xeres Wine Co., (d) Carron Iron Co. v. Maclaren, 5 14 W. E. 43 ; Smith and Fleming's H. L. 416, 440. See further, supra, pp. case, 1 L. R. Ch. Ap. 538 ; but see 108-110, 160. Kingham v. Maisey, 2 Sim. 41 ; Edg- U) Supra, pp. 105, 160. cumbe v. Carpenter, I'Beav. 171. (/) Casamajor v. Strode, 1 Sim. & (6) Dawson v. Princeps, 2Anst. 521; St. 881. Iveson V. Harris, 7 Ves. 256 ; Armit- (g) Walton v. Johnson, 15 Sim. 352. stead V. Durham, 11 Beav. 556 ; Lord See Att.-Gen. v. Duke of Ancaster, Norbury v. AUeyne, 1 Dr. & Wal. 337 ; Dick. 68 ; Mogg v. Mogg, ib. 670 ; Wil- Lund V. Blanshard, 4 Ha. 290 ; Hodson liams v. Morris, 13 Lr. Eq. 149 [628] CH. XXIX.] IN WHAT MANNER INJUNCTIONS ARE OBTAINED. * 607 injunction against tlie defendant (A) , but the injunction will nbt be extended to his tenants (i). 3. Another case in which an injunction will be granted without bill filed for the express purpose is where a plaintiff is proceeding against the defendant both at law and in eqxiity at the same time and for the same matter. In such a case the defendant may call on him to elect in which court he will pro- ceed, and if he elects to' proceed in equity he is restrained from proceeding at law by the order which directs him to elect (k). 4. Another class of cases in which an injunction may be obtained without a bill being filed for that purpose is where an action has been brought against one of the officers of the court for damages for illegal acts done in the execution of its process (Z). 5. There are also instances where, under special circum- stances, an injunction has been granted without bill filed upon the undertaking of the party applying to file a bill immedi- ately (»i). In a case in Ireland this indulgence was carried to a considerable length. A bill for the specific performance of an agreement had been dismissed with costs, the plaintiff not having been able to make a good title. He then brought an action upon the agreement, and upon a motion made by the defendant to restrain him from proceeding at law. Lord Manners granted * an injunction upon the defendant's * 607 undertaking to file a bill forthwith (w). 6. It is also necessary that an injunction should be specifically prayed by the bill. If the bill does not pray for an injunction, the plaintiff cannot move for one under the prayer for general relief (o). But leave will be given to amend by adding a prayer for an injunction (p). At the hearing, however, an in- Ih) Freemanu. Burke, TIr.Eq. 282; (m) Acherley v. Vernon, cit. 2 Eq. Humphreys v. Roberts, Set. on Deer. Ab. 527 ; Duke of Buckingham v. 869 ; Hodson u. Coppard, 29 Beav. 4 ; Duchess of Buckingham, 2 Eq. Ab. m/ro, p. 624. 627, Eden on Inj. 47. „ u p u (t) Hodson V. Coppard, ib. ; but see (n) Macnamara v. Arthur, za.&a. Att.-Gen. v. Duke of Ancaster, Dick. 349, Mitf. Plead. 55, n. ; but see Rus- 68 sell V. London, Chatham, and JJoTer h) Consol. Ord. XLH. rr. 5-7. See Railway Co., 4 Giflf. 404. -„ . , . further, supra, p. 103. (») Savory v Dyer, Amb. 70 ; Wriglil? m Prowd V. Laurence, 1 J. & W. ■/. Atkyns, 1 V. & B. 314. 655 ■ Walker v. Micklethwait, 1 Dr. & (p) Jacob v. HaU, 12 Ves. 458 ; Wood Sm. 149. See Re Weaver, 2 M. & C. v. Beadell, 3 Sim. 273. 441. [629] * 608 PRACTICE. [CH. X2IX. junction may be granted although not prayed by the bill (g). So also after decree parties to the suit, or persons who have come in, or may come in under the decree, will be restrained from violating the spirit of, or taking proceedings that are con- trary to the decree, although an injunction be not prayed by the bill (r). The court will, also, under similar circumstances, interfere to prevent injury to the property, either by the parties litigant or others. Thus, if after a decree to account, the mort- gagor attempts to cut timber, the court will enjoin him, though there was>no prayer for an injunction in the bill (s). 7. An injunction may be obtained in a suit by bill or infor- mation (if), or on an administration summons (m). 8. Injunctions are generally obtained on motion, but they may be obtained on petition. Several cases are to be found in the books in which injunctions have been obtained on petition (x). But inasmuch as the reasons for granting injunctions upon petition without bill filed no longer exist (3/), the practice has become obsolete. * 608 9. * An injunction may be applied for at any stage of the proceedings (z), and as well in vacation as in term, or whether the court is sitting or not (a). It was formerly the rule that a petition should be presented if the court had risen for the long vacation, but this is not in accord- ance with the present practice. 10. If the application be ex parte, the bill must fully and fairly state the case within the knowledge of the plaintiff, so that the court may see that primd facie the thing is fair in the aspect in which it is presented to the court. All the facts must be (q) Reynell v. Sprye, 1 D. M. & G. 475. See further, sup-a, pp. 108, 109, 660. See Blomfield v. Eyre, 8 Bear. 110. 250. (x) Smith v. Smith, 3 Atk. 304; (r) Paxton v. Douglas, 8 Ves. 520 ; Smith v. Clark, Dick. 456 ; Nichols v. Wright V. Atkyns, 1 V. & B. 814 ; Kearsley, ib. 645 ; Mayor, &c., of Lon- Casamajor v. Strode, 1 Sim. & St. 381 ; don v. Bolt, 5 Ves. 129 ; Re Creagh, Wedderburn v. Wedderburn, 2 Beav. 1 B. & B. 108 ; Re Weaver, 2 M. & C. 209 ; Goodman v. Kine, 8 Beav. 379 ; 441 ; Turner v. Turner, 19 L. J. Ch. Plight «. Chambre, 14 Jur. 128 ; Grand 352. Junction Canal Co. v. Dimes, 17 Sim. (y) Stead v. Glay, 2 Coop. C. C. 88 ; Turner v. Turner, 19 L. J. Ch. 352. 173, n. (s) Wright V. Atkyns, 1 V. & B. 318. (z) Bacon v. Jones, 4 M. & C. 433. ■ («) Att.-Gen. v. Sheffield Gas Co., (a) Temple v. Bank of England, 6 8 D. M. & G. 312. Ves. 770 ; Lane v. Barton, 1 Ph. 363 ; (m) Brooker u. Brooker, 8 Sm. & G. Hammond v. Smith, 15 L. J. Ch. 40; Chappell V. Davidson, 2 K. & J. 125. [630] CH. XXIX.J IN WHAT MANNER INJUNCTIONS ARE OBTAINED. * 609 brought before the court which are material to be brought forward. There must be no concealment or misrepresentation. All the res gestce must be represented as they actually are (6). 11. The bill having been filed, a printed copy properly stamped and indorsed must be served on the defendant (c). A written copy of the bill may be filed upon the personal undertaking of the plaintiff or his solicitor to 'file a printed copy within four- teen days ; and a written copy properly stamped and indorsed may be served on the defendant, and such service has the same effect as the service of a printed copy (^d). In very pressing cases leave may be had to file an unstamped copy of a written bill (e). If a written copy has been filed with a proper stamp, the requisite printed copy may be filed withouij a stamp (/). Leave may be had, upon a proper case being made out, to file a printed copy after the expiration of fourteen days (^). 12. Service is effected by serving a copy on the defend- ant personally, * or by leaving the same with his servant, * 609 or some member of his family, at his dwelling-house or usual place of abode (A) . If it be made to appear that ordinary service cannot be effected upon the defendant, the court will direct substituted service to be made on his agent or solici- tor (i). The jurisdiction of the court to order substituted service is discretionary (A), and will only be exercised where there is reason to believe that the service will come to the knowledge of the defendant (J). A man who applies for an order for substituted service must state what steps have been taken to effect personal service, and that all means to do so have been exhausted. The court is very vigilant in directing (6) Att.-Gen. v. Mayor, &o., of Liver- (/) Jones v. Batten, 2 D. M. & G. 111. pool, 1 M. & C. 210 ; Stedman v. Webb, {g) Ferrand v. Corporation of Brad- 4 M & C. 346 ; Goodman v. De Beau- ford, 8 D. M. & G. 93 ; Moss v. Syers, voir, 4 Ra. Ca. 381, 384; Barker v. 9 Jur. N. S. 1220. See, also. Lord North Staffordshire Railway Co., 5 JRa. Abingdon v. Thornhill, 24 L. J. Ch. Ca. 401; Hemphill y.M'Kenna, 3 Dr. & 536. . , ^, ^ War. 183 ; Castelli v. Cook, 7 Ha. 89 ; (A) Ord. X. r. 1. See Daniel Ch. Pr. DalgUsh V. Jarvie, 2 Mac. & G. 231 ; 402, 404 ; Morgan Ch. Ord. 389. Maclaren v. Stainton, 16 Beav. 290. (i) Sergison v. Beavan 9 Ha. App. (c) 15 & 16 Vict. c. 86, s. 6. 29 ; Hamond v. Walker 3 Jur N S. \d) 15 cSb 16 Vict. c. 86, s. 6. See 686; Hope w. Carnegie, 1 L.R. Eq. 126, Dan Ch. Pr.361,362. See, also, Talk- Daniel Ch. Pr. 404-408, Morgan Ch. land Islands Co. v. Lafone, 3 W. R. Ord. 390-392. . -r. o , 561 • Garland «. Riordan, 33 Beav. 448. (k) Maclean v. Dawson, 4 D. & J. (.) Kershaw .. Kalow, 1 Jur. N. S. 150. ^^^^ ^ ^^^^^ ^^^^ ^ ^^ [631] * 610 PRACTICE. [CH. XXIX. substituted service, and will never order it unless personal service is impracticable (m). 13. Before the name of any person shall be used in a suit as next friend of any infant, married woman, or other party, or as relator in an information, he is required to sign a written authority to the solicitor for that purpose, and such authority shall be filed with the bill or information (w). In very press- ing cases, however, an order will be granted to file an informa- tion without the written authority of the relator (o). 14. The bill having been filed, and a copy having been served on the defendant, notice of motion for an injunction should be served on him. The notice may be served on any defendant, who, having been duly served with a copy of the bill, shall not have caused appearance to be entered within the time limited for that purpose (p). If the motion concerns only one inter- ested party, he alone should be served. If other parties are interested in the question raised by the motion, they should all be served (g). The notice is served either personally on the party or at his dwelling-house, and sometimes substi- * 610 tuted service * is ordered. The service is ordered to be substituted where it can be made out to the satisfaction of the court that the usual service cannot be effected (r). The service is on the solicitor or town agent after the appearance of the party to the suit (s).^ 15. Service of notice of motion upon a defendant before he has appeared is irregular, but special leave may be sometimes obtained to serve a party to the cause before he has appeared (i). The leave must be stated in the notice (m). Leave given to serve notice of motion before appearance does not also include (m) Firth v. Bush, 9 Jur. N. S. Hill v. Rimmell, 8 Sim. 632; Jacklinu. 431. Wilkins, 6 Beav. 608. (n) 15 & 16 Vict. 0. 86, s. 11. i And there are many cases where it (o) Att.-Gen. v. Murray, 13 W. E. has been decided that strictly regular 65. service of the injunction is not neces- {p) Ord. HI. r. 8. sary to enable the injured party to prose- ( }) See Service v. Castaneda, 9 Jur. cute, in order to be restored to his legal 367 ; Moseley v. Moseley, 9 W. E. 531. rights, lost by a violation of the injunc- (r) Supra, p. 609. tion. Ramstock v. Roth, 18 Wis. 522 ; (s) Ord. III. r. 5. Livingston v. Swift, 23 How. Pr. E. 1 ; (<) Hill V. Rimmell, 2 M. & C. 641 ; Hull v. Thomas, 3 Edw. Ch. 236; Peo- Jacklin K. Wilkins, 6 Beav. 608 ; Hewitt pie w. Brower, 4 Paige, 405; People v. V. Price, 2 Coop. C. C. 168, n. Compton, 1 Duer, 563 ; People v. Stur- (u) Cooke V. , 4 L. J. Ch. 141 ; tevant, 5 Seld. 278. [632] CH. XXIX.J IN WHAT MANNER INjItnCTIONS ARE OBTAINED. * 611 leave to serve short notice. If that is required it must be ex- pressly ordered (a;). If defendant file affidavits in answer to a motion for an injunction, he waives the irregularity of giving notice of motion before appearance («/). 16. In very pressing cases, where the mischief sought to be restrained is serious, imminent, or irremediable, or where the mere act of giving notice to the defendant of the intention to make the application might be of itself productive of the mis- chief apprehended by inducing him to accelerate the act, in order that it might be complete before the time for making the application should have arrived, an injunction may be applied for ex parte as soon as the bill is filed upon certificate of the bill having been filed, without serving the defendant with a copy of the bill, or notice of motion for an injunction. In cases of less urgency, where the injury, though serious, is not so serious as to require the immediate interference of the court, leave may be had to serve notice of motion, or short notice of motion along with the bill, but not before the bill has been filed (s). Leave has been given to serve notice of motion before bill filed on the undertaking that the bill shall be on the file wlien service is effected (a). If leave has been given to serve notice of motion * or short notice of mo- * 611 tion along with the bill, the notice must state that it is served by leave, otherwise the defendant may disregard it (6). 17. If, upon an application ex parte, the court thinks that the case is not so urgent as to require its immediate inter- ference, it will order notice of the application to be served on the defendant (c). 18. If the defendant has appeared, he must, as a general rule, be served (c?). But in cases of extreme urgency the court may grant an injunction without notice even after appearance (e). Ix) Hartw Tulk, 6 Ha. 611 ; Newton 0. C. 166; Chambers v. Toynbee, 12 V. Chorlton, 10 Ha. App. 31. W. E. 1100. M Fitzgerald v. Bult, 9 Ha. App. (c) See Lord Byron u. Johnston, 2 65. Mer. 29. 2) Simmonds v. Heaviside, 22 Beav. (d) Marasco o. Boiton, 2 Ves. 112 ; 412 • Chambers v. Toynbee, 12 W. R. CoUard v. Cooper, 6 Madd. 190 ; Perry 1100 See contra, Fosbrook v. Wood- v. Waller, 3 Russ. 519 ; Mansfield v. cock 12 Jur. 956 ; Parker v. Great Short, 2 Coop. C. C. 169, n. ; Langham Northern Railway Co., 4 De G. & S. v. Great Northern Railway Co., 1 De 138 G. & S. 486. la) Maynard v. Fraser, 26 L. T. 88. (e) AUard v. Jones, 16 Yes. 605 ; (6) Moggridge v. Thomas, 2 Coop. Harrison v. Cockerell, 3 Mer. 1 ; Col- [633] * 612 PRACTICE. [CH. XXIX. The affidavit in support of the application should state the fact of appearance, otherwise it is irregular (/). 19. A notice of motion must be properly entitled in the cause in which it is made ( ^), and must express before what judge the motion is intended to be made (A), and should state on whose behalf the motion is to be made. If notice of motion be given in an information, it must be on behalf of the Attorney-General, and not on behalf of the relator («')• 20. The notice of motion must state the day on which the motion is to be made. If notice of motion be served for a day ' not appropriated for the hearing of motions, and the notice does not purport to be with leave of the court, the defendant may disregard it(^). Unless the court gives special leave to the contrary, there must be at least two clear days between * 612 the * service of a notice of motion and the day named in the notice for hearing the motion ; and iii the computa- tion of such two clear days, Sundays and other days on which the offices are closed, except Monday and Tuesday in Easter week, are not to be reckoned (Z). If a proper case can be made out, leave may be had to serve short notice of motion. The leave must be stated in the notice (m). 21. The notice should state clearly the terms of the order asked for (w). If it is intended to ask for the costs of the appli- cation, the notice should so express it, otherwise if the defend- ant neglects to appear, the costs of the motion cannot be given (o). But where the defendant appears on the motion, costs may be given though not asked for by the notice Qp). 22. An ex parte application for an injunction may be made at any time according to tlie urgency of the case. If the motion lard V. Cooper, 6 Madd. 190 ; Petley v. (h) Ord. XXXIII. r. 1. See Dan. Eastern Counties Railway Co., 8 Sim. Ch. Pr. 1443. 483 ; Acraman v. Bristol Dock Co., 1 (i) Att.-Gen. v. Wright, 3 Beav. 447. E. & M. 321; Bell v. Hull andSelby (/,:) Hill v. Rimmell, 8 Sim. 632; Railway Co., 1 Ra. Ca. 623 ; Lewis v. Lloyd v. Gordon, 2 Coop. C. C. 171, n. Langham, 2 Coop. C. C. 170, n. ; Ran- U) Ord. XXXVIL rr. 11, 12. dall V. Commercial Railway Co., ib. (m) Harris v. Lewis, 8 Jur. 1063 ; 169, n. Hart v. Tulk, 6 Ha. 611 ; Newton v. (f) Harrison v. Cockerell, 3 Mer. 1 ; Chorlton, 10 Ha. App. 31 ; Chambers Randall v. Commercial Railway Co., 8 v. Toynbee, 12 W. R. 1100. L. J. Ch. N. S. 252, 2 Coop. C. Q. 169, (n) Brown v. Robertson, 2 Ph. 173, n. ; Sutton v. Mumford, ib. 171, n. See See Dan. Ch. Pr. 1443, 1448. Belts V. Barton, 3 Jur. N. S. 154. (o) Pratt v. Walker, 19 Beav. 261. (g) Rowlatt v. Cattell, 2 Ha. 186, \p) "Clark v. Jaques, 11 Beav. 623 : Dan. Ch. Pr. 1442. Butler v. Gardener, 12 Beav. 525. [634] CH. XXIX.] IN WHAT MANNER INJUNCTIONS ARE OBTAINED. * 613 be upon notice, it must be made upon one of the days appropri- ated for the hearing of motions. Every day in terin is, strictly speaiiing, a motion day ; but it is not the practice of the court to hear motions except on seal days. If a man desires that a motion should be heard on a day not appropriated to the hear- ing of motions, he must obtain leave of the court and then give notice to the other party (g). 23. Every application for an injunction, except in an inter- pleader suit, must be supported by affidavits verifying the material allegations of the bill, so as to show that on the face of the evidence they are well founded (r). The affidavits should contain no allegation not inserted in tlie bill. Facts not founded on allegations in the bill must not be introduced into the affidavits. Affidavits are to be considered only as evi- dence of the allegations made in the bill, and cannot be attended to as laying a foundation for equities not otherwise claimed (s). There * must be no variance between the *613 allegations in the bill or the aid thereby sought and the affidavits in support of it (0-^ 24. The affidavits are usually made by the plaintiff him- self (m), but they may be made by any person acquainted with the facts (x). An affidavit, however, made by the solicitor of the plaintiff, or by any other person than the plaintiff himself, is not sufficient, unless a good reason can be given for its not being made by the plaintiff himself (2/). The affidavits must not be sworn until after the bill has been filed (s). No matter what the merits may be, an injunction founded on affidavits sworn before the filing of the bill cannot stand (a). (o) Anon., 4 L. J. Ch. 204 ; Chaffers (a) -Williams v. Davies, 2 Coop. C. V. Baker, 2 W. E. 546. C. 172, n. (r) See Magnay v. Mines Royal Co., ' As to the American practice in 3 Drew. 130, 133. reference to affidavits, see Youngblood (s) Dawson v. Yates, 1 Beav. 301 ; v. Schamp, 2 McCarter, 42. The usage Burgess v. Home, 14 L. T. 461. and practice in Maryland do not require (() Wattleworth v. Pitcher, 2 Pri. other affidavits than that of the com- 189; Stockingi). Llewellyn, 3 L.T. 33. plainant to procure an injunction be- (u) MoUett V. Enequist, 25 Beav. 609. fore answer where the facts are in pais. (x) Kenworthy v. Accunor, 3 Madd. Myers v. Amey, 21 Md. 302. But an 550 ; Lord Byron v. Johnstone, 2 Mer. injunction will not be granted on facts 29 ; Hamilton v. Board, 1 N. R. 379. stated on information and belief only. («) Lord Byron v. Johnstone, 2 Mer. Armstrong v. Sanford, 7 Minn. 49. As 29 ; Spalding v. Keely, 7 Sim. 377 ; to giving notice before granting an in- Scotson V. Gaury, 1 Ha. 99. junction, see Dinehart u.La Fayette, 19 (z) Francome v. Francome, 11 Jur. Wis. 677. N. S. 123, [635] * 614 PRACTICE. [CH. XXIX. 25. An affidavit must be correctly intituled in the cause or matter in which it is made. It is, however, sufficient if it was correctly intituled when it was sworn, although the title of the cause may have been subsequently altered by amendment (&). 26. All affidavits are to be taken and expressed in the first person of the deponent (c). The affidavit must commence by stating that the party " makes oath and says," for even though the jurat express that the party was sworn, it will not be suffi- cient unless the affidavit also state that the party makes oath (cZ). 27. Every statement in an affidavit must be divided into para- graphs, and every paragraph numbered consecutively and as nearly as may be confined to a distinct portion of the sub- ject (e) ; and each statement must show the means of knowledge of the person making such statement (/). If the statement is made merely on belief, the deponent must state the grounds of his belief, so as to show that he has some reasonable and proper cause for making the statement, and has not sworn merely to raise an issue. Hearsay evidence, though not * 614 admissible at the * hearing of a cause, is admissible on interlocutory applications as putting the opposite party to answer it, and if not expressly denied is to be assumed for the purposes of the application to be in accordance with the facts. Hearsay evidence may be introduced as a ground of belief, though it consists of conversations with third persons who may be, but are not produced (^g). 28. The fact that an affidavit may depart from the common form is a circumstance to excite jealousy, and the court will so regard it, unless a reason is shown for such departure. But if a sufficient reason is shown the affidavit will not be re- jected (A). 29. The affidavits in support of an ex parte injunction should always state the precise time at which the plaintiff, or those (h) Hawes v. Bamford, 9 Sim. 653. Scott u. Becher, 4 Pri. 346 ; Woodhatch See further, Daniel Cli. Pr. 826. v. Freeland, 11 W. E. 398. But see (c) Ord. XVIII. rr. 1, 2. Stamps v. Birmingham, Wolverliamp- (d) Philipps V. Prentice, 2 Ha. 542 ; ton, and Stour Valley Railway Co., 7 Re Newton, 2 D. F. & J. 3. Ha. 251, 255. (c) 15 & 16 Vict. c. 86, s. 37. (h) Woodhatch u. Preeland, 11 W. (/) Ord. 5th Feb. 1861, r. 23. R. 398. (g) Bird v. Lake, 1 H. & M. 118. See [636] OH. XXIX.] IN WHAT MANNER INJUNCTIONS ARE OBTAINED. * 615 acting for him, became aware of the threatened injury (*'). They must show either that notice to the defendant would be mischievous, or that the miscliief is so urgent, that it would be done, if notice were served on the defendant before the injunc- tion^ could be obtained. If the affidavits fall short of this point, the motion will be ordered to stan4 over, and notice of it must be served on the defendant (A;). 30. An affidavit cannot be produced in court or otherwise for the purpose of grounding any order, writ, process, or proceeding thereon, unless duly filed in the office of the clerks of writs and records (Z). The office copy of the affidavit must be in court at the time of making the motion (m). Sometimes, however, in vacation, when the matter has been pressing, the court has taken the affidavits into its own hands and then considered them as filed (n). 31. Affidavits cannot be read on the hearing of a motion un- less filed before ten o'clock of the day for which the notice was given (o). There does not however appear to be any rule that * they must be filed any particular time before * 615 the hearing of the motion Qp). If the affidavit be such as by the practice of the court admits of no denial, the late time at which it is filed cannot be objected to (g). But the court will not allow a party to gain an advantage from filing affidavits at the last moment (r). If, on the motion coming on to be heard, a proper case can be made out, the motion will be - ordered to stand over to enable the defendant to answer the affidavits (s). If the application appears to be a reasonable one, it will be granted on the application of counsel without more (0- In cases where the reasonableness of the applica- tion is not so clear, the court may require an affidavit that the party applying has a defence but needs further time to answer the affidavits. (i) Calvert v. Gray, 2 Coop. C. C. (?) Jones «. — , 8 Ves. 46. 17J u M Carew v. Yates, 1 W. R. 11. I'k) 'Anon., 1 L. J. Ch. 4. (s) lb. ; Electric Telegraph Co. v. II) Ord XVIII. r. 5. Nott, 11 Jur. 273; Besemeres v. Bese- ,m) Jacksonw. Cassidy, lOSim. 326; meres, Kay, App. 17. ^ ^ ^ ^^ Elsey V. Adams, 4 Giff. 898. («) Carew v. Yates, 1 W R. 11 ; (n) Att -Gen. v. Lewis, 8 Beav. 179. Electric Telegraph Ca v. Nott, 11 Jur. Anon., 10 Sim. 50. 273 ; Besemeres v. Besemeres, Kay, (p) Ex parte Leicester, 6 Ves. 432 ; App. 17. Munro v. Wivenhoe, &c., Railway Co 13 W. R [687] * 616 PRACTICE. [CH. XXIX. 32. All affidavit in support of a notice of motion should not be filed prior to the date of the notice of motion, as the opposite party is not bound to search for affidavits filed prior to the date of the notice. If it is intended to use an affidavit previously filed in the cause, notice of such intention should be served on the opposite party (m). But if the other party files an affidavit in answer to such affidavit, it is a waiver of any objection on the ground of want of notice (x). , 33. An affidavit of service of notice of motion is not available unless filed at the latest before the rising of the court on the day on which the application is made (j/).. 34. If the application for an injunction is ex parte, the party applying must deliver copies of the affidavits upon which it was granted upon payment of the proper charges, immediately upon the receipt of the usual request and undertaking, or within the time specified in the request as directed by the court (s). 35. After the motion is opened no new evidence can be * 616 offered * except with the leave of the court (a) . The court may, however, admit affidavits after the case is opened, if a failure of justice is likely to occur by reason of their rejection or if great inconvenience would ensue (6). The court may take notice of matters given in evidence in previous proceedings in the cause and may refer to notes made by the court on such occasions (c). 36. Upon motion by appeal from an order granting or refus- ing an injunction, fresh evidence maybe adduced in support of or to discharge the injunction (t^). The rule that no new evi- dence can be adduced on a motion after it is opened extends to the case of documents which it is proposed to verify vivd voce by the attesting witness (e). (u) Clement v. GrifSth, C. P. 0. 470. Co., 9 Ha. App. 20 ; Bird v. Lake, 1 H. See Bowdler v. Bowdler, 9L. J. Ch. IST. & M. 118. S. S94. Comp. Lister v. Leather, 3 Jur. (6) East Lancashire Railway Co. t. N. S. 433. Hattersley, 8 Ha. 86 ; Anderton v. (x) Blackmore v. Glamorganshire Yates, 15 Jur. 833; Munro v. Wiveu- Eailway Co., 5 Russ. 151. hoe, &c., Railway Co., 13 W. R. 880. {y) Lord Milltown v. Stewart, 8 Sim. See Glover v. Daubney, 32 L. J. Ch. 34 ; Marshall v. Colehill, 2 Coop. C. C. 547. 172, n. (c) Lister v. Leather, 3 Jur. N. S. [z) Ord. XXXVI. 1 . 9. 433. (a) Electric Telegraph Co. v. Nott, {d) Const v. Barr, 2 Russ. 163; Pole 11 Jur. 273 ; Smith v. Swansea Dock v. Joel, 2 D. & J. 285. [638] (e) Bird v. Lake, 1 H. & M. 111. CH, XXIZ.] IN WHAT MANNER INJUNCTIONS ARE OBTAINED. * 617 37. Application for ex parte injunctions and writs of we exeat regno must be made at tlie commencement of the sittings of the court instead of at the rising : such motions take precedence of all other motions (/). Where several counsel state that they have respectively pressing motions to make, the court calls on the senior counsel (^). Where notice of motion has been given for a certain day, that motion does not thereby obtain prece- dence on that day Qi). 38. The amendment of the bill pending notice of motion for an injunction operates as a waiver of the notice (i). A fresh notice is necessary on the amended bill (k}. If the plaintiff desires to amend his bill pending notice of motion, he should apply specially by summons to amend without prejudice to the notice of motion (?). Leave may be had to amend even where a general demurrer to the bill was allowed (m). 39. * If the sole plaintiff or (if there are more than * 617 one) all the plaintiffs are resident out of the jurisdiction, any defendant to the bill may before he takes any proceedings in the suit require the plaintiff or plaintiffs to give security for costs (n). But a plaintiff resident abroad will not be compelled to give security for costs when the bill is filed by way of defence to an action at law (o), though the bill seeks other relief (p). 40. If the application for an injunction be made on notice, the parties may proceed on affidavits on both sides (^q). Formerly affidavits could not except under special circumstances be read against the answer of the defendant (r). He was bound to rest" his case on the merits confessed in the answer (s). But under the new practice in applications for an injunction or to dissolve an injunction, the answer of the defendant is for ( /) 1 L J Ch. 60. (o) Watteeu v. Billam, 3 De G. & S. (g) Soltau V. De Held, 15 Jur. 1151. 516. A 76. (p) Wilkinson v. Lewis, 3 Giflf. 394. ti) Martin a. Fust, 8 Sim. 199 ; See Morg. & Dav. on Costs, 12. Gouthwaite v. Eippon, 1 Beav. 54; (?) Magnay v. Mines Eoyal Co., 3 Monypenny v. , 1 W. E. 99. Drew. 130. (k] London and Blackwall Eailway (r) See Nor.way v. Eowe, 19 Ves. Co. V. Limehouse Board ofWorks, 3 K. 155 ; Eock v. Matthews, 2 De G. & b. ^ J 123. 227, 234 ; Custance v. Cunningham, 13 (/) Martin u. Fust, 8 Sim. 199 ; Child Beav. 363. a. Douglas, Kay, 560. (s) Magnay v. Mmes Royal Co. 3 (m) Smith V. Dixon, 12 W. E. 934. Drew. 130. See Bentmck v. Wilhnk, 2 See Eawlings v. Lambert, IJ. & H. 458. Ha. 1. (n) Morg. & Dav. on Costs, 3. [639] 618 PRACTICE. [CH. XXIX. the purpose of evidence ou such application to be regarded merely as an affidavit, and affidavits may be received aiid read in opposition thereto (t). ^ 41. Whether or not the court will grant the application de- pends on the merits as collected from the affidavits. If a suffi- cient primd facie case be made out, the court will consider the case sufficiently proved, unless the defendant files an affidavit denying it (m) . The affidavit must traverse all the facts on which the plaintiff's equity depends. A mere general denial is not sufficient (a;). If the affidavits of the plaintiff and the de- fendant are altogether conflicting («/), or if the balance of evi- dence is in favor of the defendant, the motion will be * 618 dismissed or ordered * to stand over. Either party may require the attendance of any witness before an ex- aminer of the court or before an examiner specially appointed for the purpose, and may examine such witness orally for the purpose of using his evidence upon the motion ; and any party having made an affidavit is bound, on being duly required to (t) 15 & 16 Vict. c. 86, s. 59. See Wightman v. Wheelton, 23 Beav. 397. (u) Potts V. Potts, 3 L. J. Ch. 176; Bell V. Wilson, 34 L. J. Ch. 572. {x) Pyecroft v. Pyecroft, 2 Sm. & G. 326. See Scott v. Becher, 4 Pri. 846 ; Denys v. Locock, 3 M. & C. 205 ; Palin V. Gathercole, 1 Coll. 565. (y) De Tastetw.Bordenaye, Jac. 516; Sanxter o. Foster, Cr. & Ph. 302; M'Curdy v. Noak, 17 L. J. Ch. 165. 1 Where the allegations of the bill are fully and specifically controverted by the defendant's affidavit, an injunc- tion pendente lite will be refused. Gag- liardo v. Crippen, 22 Cal. 362. But to dissolve an injunction the denial must be of the same positive character as the averment. Smith v. Appleton, 19 Wis. 468 ; Horner v. Jobs, 2 Beasley, 19 ; Brown v. Fuller, 2 Beasley, 271. See, also, llorris Canal, &c., Co. v. Jersey City, 3 Stockton, 13. Where the de- fendant sets up entirely new matter to avoid the complainant's eguity, although it is a good defence and a good answer to the equity, the court will not dis- solve the injunction as a general rule. Carson v. Coleman, 3 Stockton, 106 ; Brewster v. Newark, ib. 114; Morris Canal Co. v. Jersey City, 1 Beasley, ii27. See Hargraves v. Jones, 27 Geo. [640] 233. As to the exception to the rule, that upon a denial of the equity the defendant is entitled to a dissolution of an injunction, see Leigh v. Clark, 3 Stockton, 110. Where in such case there is shown a strong probability that the ends of justice will be better an- swered by its continuance, it will be continued. Furman v. Clark, 3 Stock- ton, 135. Although the equity of the bill is not answered, if the continuation of the injunction is a material injury to the defendant, and its dissolution is no present injury to the complainant, or cannot prejudice his right, the court may, in its discretion, dissolve the in- junction. Bechtel v. Carslake, 3 Stock- ton, 244. Where the defendant, who has been restrained, denies the equity, but the others most interested in the subject-matter admit all the material allegations, the injunction must stand. Zabriskie v. Vreeland, 1 Beasley, 179. An injunction will not be issued upon facts stated on information and belief only. Bank of Orleans v. Skinner, 9 Paige, 305 ; Armstrong v. Sanford, 8 Minn. 49. The proper filing of such an answer as would dissolve an injunction, if granted, will prevent one from issu- ing. Bell V. Purvis, 15 Md. 22. CH. XXIX.J IN WHAT MANNER INJUNCTIONS ARE OBTAINED. * 619 I do so, to attend before an examiner for the purpose of being cross-examined (s). 42. But the court has a discretionary power of acting upon such evidence as may be before it at the time of the application, and as may appear necessary to meet the justice of the case (a). The court will not allow a motion to stand over in order to allow witnesses to be examined, if it is satisfied that the appli- cation is made for the purpose of creating delay (6), or that the evidence is sufficient to enable it to deal satisfactorily with' the motion (c). A witness cannot be cross-examined in open court upon an interlocutory application, but only at the hear- ing, and in cases in which issue has been joined by filing replication Qd}. 43. The case made out must correspond with the allegations in the bill (e). If a man brings prominently forward and relies upon a given case, the court will not allow him, if he should fail in that case, to spell out another and say he might have framed his case so as to show a title to the relief asked (/). A man who complains of injury of a peculiar and special kind cannot be allowed to give evidence of another injury of a special and peculiar kind (^). An injunction is only granted on a * specific case. The court never grants injunc- * 619 tions on general complaints (A). The relief prayed must be consistent with the case made out (i) , and be such as may be asked for upon the frame of the bill (k}. An injunc- tion granted on motion must be such as is prayed by the bill. {z) 15 & 16 Vict. c. 86, s. 40; Bese- (e) Butts v. Matthews, 5 L. J. Ch. meres u. Besemeres, Kay, App. 17 ; N. S. 134 ; Burton v. Blakemore, 2 Jur. Clarke v. Law, 2 K. & J. 28 ; Lloyd v. 1062 ; Hertz v. Union Bank of London, Whitty, 19 Beav. 57 ; NichoUs v. Ibbet- 1 Jur. N. S. 127. son, 7 W. R. 430 ; Edwards v. Spaight, (/) Whitworth«. Gaugain, Cr. &Ph. 2 J. & H. 617; Singer Sewing Machine 325; Castelli v. Cook, 7 Ha. 89; Bar- Manufacturing Co. V. Wilson, 2 H. & ker v. North StafiTordshire Railway Co., M. 584 ; Morg. Ch. Ord. p. 192. 2 De G. & S. 55, 5 Ea. Ca. 401. See (a) 15 & 16 Vict. c. 86, s. 40. Pentney v. Lynn Paving Commission- (6) Normanville v. Stanning, 10 Ha. ers, 13 W. R. 983. App. 20. ig) Hertz v. Union Bank of London, (c) Mayer v. Spence, 1 J. & H. 87. 1 Jur. N. S. 127. But see Wightman v. Wheelton, 23 (h) lb. Beav. 397 ; Braithwaite v. Keams, 34 ii) Att.-Gen. v. Grocers' Co., 1 Keen, Beav. 202. 506 ; Jones v. Latimer, 1 Jur. 980. See (d) Ord. 5th Feb. 1861, rr. 7, 19, 21. Hill v. Great Northern RaUway Co., 5 See Bodger v. Bodger, 11 W. K. 80. D. M. & G. 66. Comp. Nichols v. Ibbetson, 7 "W. R. 480. {k) CasteUi v. Cook, 7 Ha. 89. 41 [641] * 620 PRACTICE. [CH. XXIX. It is not competent to the court to grant an injunction in terms not prayed by the bill (Z). 44. An injunction will not be granted pending a demurrer ; but the court will upon application, where the matter is pressing, order the demurrer to be argued immediately (m). If the demurrer is oTcrruled the plaintiff may then move for an in- junction (w). The usual course now is for the demurrer to be brought on and argued with the motion for an injunction (o). fit does not follow that because a bill for an injunction is not demurrable an injunction will issue. An injunction may be refused in many cases where the facts stated upon the bill would preclude a demurrer (p). Though an injunction will not be usually granted pending a demurrer, the pendency of a demurrer does not prevent a plaintiff from serving the defend- ant with notice of motion, and it would seem that when jus- tice requires it an injunction will be granted pending a demurrer (5'). 45. Nor will an injunction be granted pending a plea ; but an early day will be appointed for the ai'gument (r). Nor can a motion be made for an injunction where the bill has been found to contain scandalous matter, until the scandalous matter is expunged (s). 46. Instead of issuing the writ of injunction in the first in- stance the court will often grant an interim order in the * 620 nature of an * injunction, by which the defendant is restrained until after a particular day named, liberty being given to the plaintiff to serve notice of motion for an injunction for the day before such day. The usual practice is to extend the order over the whole of the next motion day, in order that the plaintiff may serve, by leave of the court, the defendant with notice of motion for an injunction for that day. There is, however, no fixed rule on the subject. If it appear that the defendant would be oppressed by extending the order m Burdett v. Hay, 33 L. J. Ch. 41. (0) Seton, 872. (m) Cousins v. Smith, 13 Ves. 164; (p) Kay v. MarshaU, 1 M. & C. 373. Jones V. Taylor, 2 Madd. 181 ; Const See supra, p. 213. V. Harris, T. & R. 510, n. ; Anon. v. Iq) Wardle v. Claxton, 9 Sim. 412. Bridgewater Canal Co., 9 Sim. 378. (r) Humphreys v. Humphreys, 3 P. (n) Rashleigh v. BuUer, Dick. 153; W. 395; Anon., 2 Atk. 113. Franklyn v. Thomas, 3 Mer. 225, 234 ; (s) Davenport v. Davenport, 6 Madd. Claughton v. Hadwell, 6 Madd. 299; 261. Farquharson v. Pitcher, 2 Russ. 81. [642] CH. XXIX.] IN WHAT MANNER INJUNCTIONS ARE OBTAINfeo. * 621 over the whole of the next motion day, the court will either name a day short of that day, giving the plaintiff leave to serve the defendant with notice of motion for an injunction for that day, or will extend the order over the whole of the next motion day, giving the defendant leave to move sooner to discharge the order on notice, with liberty to the plaintiff to move simulta- neously for an injunction in the event of the defendant electing to advance the motion (i). In many respects there is a con- venience in proceeding by interim order instead of granting an injunction. Among other conveniences the defendant is not put to the necessity of coming to the court to discharge the order (m). Interim orders are generally granted upon ex parte application, but they may be granted where the motion is upon notice, or the pleadings show issues raised which must be discussed at the hearing (x). Where the application is ex parte it is neces- sary that the court should be informed of all material facts. The court does not, perhaps, upon an application for an interim order, require the same special mention of all particulars which it requires where the application is for an ex parte injunction, but it is the duty of the party who makes the application to bring all material facts before the notice of the court («/). 47. Where an interim order has been obtained, and simulta- neous applications are made on the part of the plaintiff for an injunction in the terms of the order, and on the part of the defendant to discharge the order, the plaintiff has a right to begin (2). 48. The motion, if not brought on the day or during the seal for * which notice has been given, should be *621 saved. If it be not saved it will be treated as aban- doned (a). A counsel for the motion on being afterwards instructed cannot subsequently save the motion to the next seal (6). But if counsel has been instructed to move on the seal day mentioned in the notice of motion and neglects to do so, the court may not treat the motion as abandoned (c). The it) Fraser v. Whalley, 2 H. & M. 10. (a) Cuthbert v. Fane, 1 Jur. 890; u) Fuller v. Taylor, 32 L. J. Ch. Turner v. Turner, 15 Jur. 1165; Re 376 Banwen Iron Co., 17 Jur. 127. (x) Coleman D. West Hartlepool Rail- (J) i?e Smith, 23 Beav. 284. wav Co 3 L. T. N. S. 847. (c) See Wedderburn v. Llewellyn, 13 s Fuller V. Taylor, 32 L. J. Ch. 876. W. E. 939. Fraser v. WhaUey, 2 H. & M. 10. [643] * 622 PRACTICE. [CH. XSIX. motion may be saved at any time before the court rises, although the motions may have been finished (cZ). 49. Upon the motion being made, if counsel does not appear in opposition to the motion, it is granted on affidavit of service (e). The office copy of the affidavit must be produced in court on the day the motion is made before the court rises (/). If the affidavit of service is imperfect or irregular the service cannot be subsequently verified, but a new notice of motion must be given (^). The order which is made on affidavit of service is in the terms of the notice. An order made on affidavit of service is liable to be discharged if there be any irregularity in the notice (A) or affidavit (i) on which it is founded, or if it adds to (F) or departs from the terms of the notice (Z). 50. In doubtful cases where damage maybe occasioned to the defendant, in the event of an injunction or interim restraining order proving to have been wrongly granted, the court will require the plaintiff, as a condition of its interference in his favor, to enter into an undertaking to abide by any order it may make as to damages. The undertaking was formerly required only in cases where the application was exjparte, but the present practice is to require the undertaking as well, where the motion is on notice, as where it is exparte (m). If * 622 the * plaintiff is not within the jurisdiction (n), or is a limited company (o), the undertaking of some respon- sible person within the jurisdiction is required. An undertak- ing as to damages will be required from a married woman in respect of her separate estate (p). 51. In cases where the equity of the plaintiff is perfectly clear, or where the damage, if any, which might accrue is of a Id) Cass <;. Bailey, Smith, Ch. Pr. (m) Chappell v. Davidson, 8 D. M. 248, n. & G. 1 ; Tuck v. Silver, John. 218; De (e) Davidson v. Leslie, 9 Beav. 104 ; Mattos v. Gibson, 5 Jur. N. S. 347 ; In- Angier v. May, 3 W. E. 330. gram v. Stiff, ib. 947 ; Adamson v. Wil- (/) Smith, Ch. Pr. 249. son, 3 N. R. 368; Wakefield v. Duke (0) Barton v. Chambers, 4 Beav. 547 ; of Buccleugh, 11 Jur. N. S. 523, Seton, Angler v. May, 3 W. R. 330. See 870 ; supra, p. 212. Salomon v. Stalman, 4 Beav. 243. (n) Hamilton v. Board, 1 N. R. 379. {h) Moody v. Hebberd, 11 Jur. 941. (o) Anglo - Danubian, &o., Co. v. (i) Salomon «. Stalman, 4Beav. 243. Rogerson, 10 Jur. N. S. 87. h) Pratt V. Walker, 19 Beav. 261 ; {p} Holden v. Waterlow, 15 W. B. Ex parte Carew, 23 L. J. Ch. 761. 139. (1) Hutton V. Hepworth, 6 Ha. 315. See Dan. Ch. Pr. 1448. [644] CH. XXIX.] IN WHAT MANNER INJUNCTIONS ARE OBTAINED. * 623 vague and uncertain nature, the undertaking will not be re- quired (^q)? 52. The undertaking is ordinarily given through counsel, and forms part of the order ; but where the order is granted in vacation without the attendance of counsel, the undertaking is inserted in the registrar's book, and signed by the plaintiff or his solicitor (r). If the undertaking is entered into by a man who is a stranger to the cause he is required to sign the registrar's book (s). The court may, however, upon a proper application, allow the undertaking to be sent by post and filed instead of the party signing the registrar's book (t'). 53. Security for payment of any damage which may be awarded in pursuance of the undertaking is sometimes re- quired (m). 54. The undertaking remains in force notwithstanding the dismissal of the bill (a;). 55. If the question at issue between the parties has refer- ence to the payment of moneys, the court will, generally, as a condition of granting an injunction, require the moneys to be paid into court (?/). 56. As, on the one hand, the court may in doubtful cases re- quire the plaintiff to enter into an undertaking as to damages, as the condition of its interference, in his favor; so, on the other * hand, it may require the defendant to * 623 enter into terms as a condition of withholding an in- junction (z).^ 57. A motion for an injunction may by consent be turned into a motion for decree, a time being fixed for the plaintiff to file any afiidavits he may desire, and also for defendant to file affi- (o) Adamson v. Wilson, 3 N. E. 368. shall sustain, or no bond required, no ir) Seton 870. damages can be recovered by the party 89 s) Gurney w. Behrends, 9 Ha. App. enjoined; and when a bond is re- „y ' quired and given, no greater damages m Pacific Steam Navigation Co- v. can be recovered than the penalty . Stur- Gibbs U W. R. 218. gis "• Knapp, 33 Vt. 486. And when lu) 'Seton 864 the damages to the different parties are (x) Newby v. karrison, 3 D. F. & J. clearly several, it seems the bond will 290 be held to be several, though its lan- (,/) Supra, pp. 19, 20, 212. guage would indicate a joint oblig:ation. f S'pT 210, 2ir^- !6:"^See: also. Browner -Davis, 15 i if no ordeJ is made that the party Cal. 9 ; Corner t. Zuntz, 14 La. An. spekins the injunction shall pay to 861. the p^ty enjoined such damages as he 2 Ewing v. Filley, 43 Penn. St. 384. [645] *624 PRACTICE. [CH. XXIX. davits in answer, and either party being at liberty after the cause has been set down to expedite the hearing (fl). The plaintiff may obtain an enlargement of the time for filing affi- davits, but he may not by amendment, after the time for filing affidavits has elapsed, raise a new case (5). 58. In cases where an injunction is granted application may be made by the defendant to have the cause advanced as soon as it is ready for trial ; not so where it is refused (c). 69. If the question in the suit is distinctly raised on the mo- tion for the injunction, and is ripe for decision, the order on the motion ought to declare the rights of parties. The terms of the order should be specific, and should define the limits of the right. If the language of the order should be in itself vague, ambiguous, uncertain, or indefinite, giving no clear line of conduct, the order cannot be maintained. The language of the order should be such that it is quite plain what it permits and what it prohibits. An order which merely prohibits a man from doing what he has no authority to do, without showing him what are the limits of his authority, and leaves him to find out what is forbidden and what is allowed, is irregular (cf). If, however, as sometimes happens, it is impossible for the court to define exactly the limits of the right, an order which merely amounts to a declaration of right is not irregu- * 624 lar (e). If the court can only restrain a man* from doing what it thinks not right, it will, where it can point out what ought to be done, state the reasons by which it has come to its conclusion, or the manner in which it appears to the court that what seems an evil may be remedied (/). 60. The orders pronounced by the court upon applications for (a) Green v. Low, 22 Beav. 395 ; 2 Ph. 472 ; DalgUsh o. Jaryie, 2 Mac. Wilkinson v. Cummins, 11 Ha. 343 ; & G. 239 ; Warden of Dover Harbor Att.-Gen. v. Charles, 11 W. E. 253 ; v. London, Chatham, and Dover Eail- Clarke v. Clark, 13 W. K. 133, Dan. way Co., 3 D. F. & J. 559; Bird v. Ch. Pr. 1449. Lake, 1 H. & M. 122; Jay v. Riehard- (b) Clarke v. Clark, 13 W. R. 133. son, 30 Beav. 563 ; Low v. Innes, 10 See 15 & 16 Vict. c. 86, ss. 15, 16, Ord. Jur. N. S. 1037. XXXIII. rr. 4-8, Morg. Ch. Ord. pp. (e) Elliott v. North Eastern Railway 165-168, 514-516. Co., 10 H. & L. 333 ; North Eastern (c) Maunsell v. Midland Great West- Railway Co. v. Crossland, 2 J. & H. 565, ern Railway Co. of Ireland, 1 H. & M. 32 L. J. Ch. 353. 152. See Att.-Gen. v. Charles, 11 W. (/) Att.-Gen. v. Loudon and South R. 253. Western Railway Co., 3 De G. & S. (d) Earl of Ripon v. Hobart, 3 M. & 439. K. 173 ; Cother v. Midland Railway Co., [646] CH. XXIX.J IN WHAT MANNER INJUNCTIONS ARE OBTAINED. * 624 interlocutory injunctions have varied at different times. The form most frequently adopted enjoined the party " till further order" (gr). In some cases the injunction has been till " ap- pearance and further order " (K) ; in others till " answer and further order " (i). The form now usually adopted is, " until the hearing of the cause, or until further order." (¥). In the case of a bill of discovery, however, the form is " until answer or further order " (?). 61. If the object of the suit is to restrain proceedings in another court, the injunction will be awarded against the de- fendant, his attorneys and agents. If it is to restrain the com- mission of an illegal act, such as waste, trespass, nuisance, &c., it is awarded against the defendant, his servants, workmen, and agents ; and these words will be inserted in the order, although the bill and notice of motion only ask for an injunction against the defendant (m). 62. When a plaintiff sues on behalf of himself and others to stay proceedings at law, it seems that an injunction to stay pro- ceedings against the plaintiff only will be granted, and not against the other persons on behalf of whom he sues (n). 63. An order for an injunction having been obtained, it should be drawn up, passed, and entered without delay (o')} In cases (g) Lane v. Newdigate, 10 Ves. 192. Cormickw. Jerome, 3 Blatchf. C. C. K. (ft) Lord Grey de WEton v. Saxon, 486. An injunction should not be 6 Ves. 106. broader than is necessary ; that is, it (i) Potter V. Chapman, 1 Dick. 146 ; should not, in enjoining a defendant Robinson v. Lord Byron, 1 Bro. C. C. against doing what he has no right to 588 ; Drewry v. Molins, 6 Ves. 328, do, enjoin him in such a way as may Dan. Ch. Pr. 1511. possibly prevent his doing that which Uc) Seton, 870. he may properly do. Marble Company (/) Senior;;. Pritchard, 16 Beav. 473; v. Ripley, 10 Wallace, 339. Where a Lovellw. Galloway,17Beav. 1 ; Ooddeen party is in court, and hears an order of V. Oakley, 2 D. F. & J. 158. injunction pronounced, he is as much (m) Seton, 869. See Lord Welles- bound as if he had been actually served ley V. Earl of Mornington, 11 Beav. with the writ. Milne ». Van Buskirk, 180. See, for form of order, Seton, 867, 9 Iowa, 558 ; and in The People v. Stur- No. 1. tevant, 9 N. Y. 278, Johnson, J., says, (re) Armitetead v. Durham, 11 Beav. in reference to the service of an injunc- 556, 561, n. tiou and the liability of the defendant (o) See Bateman v. Wiatt, 11 Beav. to punishment for contempt in disobey- 587. ing it : "In administering the law in 1 Where an injunction was ordered in respect to the violation of injunctions, April but not tested till June, and not the court of chancery never lost sight served till June of the next year, a writ of the principle that it was the dis- of attachment against the defendant obedience to the order of the court for disobeying the injunction was re- which constituted the contempt, and, fused. After such lapse of time the therefore, although it required of the plaintiff should have applied to the party availing himself of its order a court for permission to use it. Mc- substantial compliance with the rules [647] * 625 PRACTICE. [CH. XXIX. where the matter is so urgent that the object of the * 625 injunction * might be defeated if the party were bound to wait till the order could be passed, and the writ issued upon it, the practice is to serve the party personally with notice in writing that the injunction has been ordered, and that it will be sealed and served as soon as it can be passed through the offices, or else to procure a transcript of the minutes of the order signed by the registrar, and to serve the same personally by delivering a copy of it, showing at the same time the original transcript so signed (^). 64. The writ of injunction is prepared by the solicitor of the party (g). It must be signed by one of the clerks of records and writs, and sealed with the seal of that office (r). At the time the writ is presented for sealing, either a full or an abridged copy of the writ, written on brief paper, and called a docket, must be left ; and the order awardihg the injunc- tion, or an office copy thereof, must be produced (s). The writ must be indorsed with the name and place of business of the plaintiff's solicitor, and of his agent, if any ; or with the name and place of residence of tlie plaintiff, where he acts in person ; and in either case with the address for service, if any {t). 65. The service of the injunction or restraining order should be personal (w), and is effected by leaving with the person served of practice upon the subject, it would action or attempt to enforce any right not usually allow the eiFect of its orders or privilege under it, eifect an irremedi- to be wholly lost, when the party able private injury, sought to be bound by the order had (p) Kimpton v. Eve, 2 V. & B. 349 ; actual knowledge, or notice of its exist- Scott v. Becher, 4 Pri. 346 ; Van Sau- ence, although there might have oc- dau v. Rose, 2 J. & W. 264 ; Rattray v. curred some slip in the formal method Bishop, 3 Madd. 220; M'Neill v. Gar- of bringing it home to him." Hull v. ratt, Cr. & Ph. 98 ; Chuck v. Cremer, Thomas, 3 Edw. Ch. R. 236 ; People 2 Ph. 113 ; Gooch v. Marshall, 8 W. R. V. Brower, 4 Paige, 405 ; and in People 410, Dan. Ch. Pr. 1513. In country V. Sturtevant, supra, it was held that an cases the terms of an injunction are injunction against a corporate body is often communicated as soon as it is binding upon all individuals acting for granted by telegraph to an agent, who the corporation, to whose knowledge prepares therefrom and serves the the injunction comes. But a court of formal notice mentioned in the text, equity will not restrain a municipal Dan. Ch. Pr. 1513. corporation from passing a resolution (q) Ord. III. 1. or ordinance giving permission to a (r) Ord. I. 37, Dan. Ch. Pr. 1513. railroad corporation to run steam-en- is) Dan. Ch. Pr. 1513. gines on particular streets or avenues of (() Ord. III. 2, 5, Dan. Ch. Pr. 1513. the city, unless in a case where it (m) "Woodward v. King, 2 Ch. Ca. 203, appears that the mere voting on, and 2 Dick. 797; Van Sandaut;. Rose, 2 J. formal passage of, such resolution or & W. 264 ; Gooch v. Marshall, 8 W. R. ordinance, would instantly, without any 410. [648] CH. XXIX.] DISSOLUTION OP INJUNCTION. * 626 a true copy of the writ or order, and at the same time showing him the original writ as duly issued, or the restraining order as duly passed and entered (cc). If it can be satisfactorily made to appear that the defendant is keeping out of the way, substituted service will be ordered (?/). * SECTION II. — DISSOLUTION OF INJUNCTION. * 626 1. Interlocutory injunction may be dissolved at any time before hearing of the cause. 2. Practice where interim order has been obtained. 3. Plaintiff cannot on motion to dissolve make a new case. 4. Dissolution must generally be on motion in open court. 6. Practice in case of ex parte injunctions. 6. Motion to dissolve should be made before the court granting the injunction. 7. Evidence on motion to dissolve. 8 & 9. Misrepresentation sufficient ground for dissolving eso parte injunction. 10. Plaintiff may make another application. 11. Practice on dissolution of injunctions to stay proceedings at law until discovery. 12. Motion to dissolve pending application for production of documents refused. 13-16. Who shall move to dissolve. 17. Where order for injunction is irregular, motion should be made to discharge the order. 18. Irregularity of injunction may be waived. 19. After long acquiescence, application for dissolution not readily entertained. 20. Delay may deprive one of right to dissolution. 1. An interlocutory injunction may be dissolved at any time before the hearing of the cause. If the allegations which constitute the equity of the bill are falsified by affidavits on the other side, or if the court shall be of opinion that the injunction was improperly granted, it will order the injunction to be dissolved (2). A defendant who wishes to have an injunction dissolved must serve the plaintiff's solicitor with notice of motion for that purpose. If other parties are inter- ested with him as co-defendants, it may be necessary to serve them also with notice of motion (a). The motion may be made by the defendant either on affidavits in opposition to those filed tx) Woodward V.King, 2 Ch.Ca. 203, Pycroft z,. WilUams, 5 W. R. 464; 2 Dick 797 Dan Ch. Pr. 1514. Heald v. Hay, 9 W. R. 369, Morg. (J) Pearce V Crut^hfield, 14 Ves. Ch. Ord. 472, Dan. Ch. Pr. 940, 151| 206; "Williams «. Johns, IMer. 303, n.; Iz) Sanxter v. Foster, Cr. & Ph. Lord Portarlington v. Graham, 5 Sim. 302. j „ t qct 418 ■ Kirkman v. Honnor, 6 Beav. 400; (a) Service v. Castaneda, 9Jur. 3b7, Skese v. Simpson, 2 De G. & S. 454 ; supra, p. 609 ; infra, p. 631. ^^ [649] * 627 PRACTICE. [CH. XXIX. by the plaintiff, or he may wait until he has filed his answer, and then move to dissolve the injunction, using his answer as an affidavit, the plaintiff being entitled to file counter-affidavits to contradict either the answer or the affidavits of the defend- ant. The injunction will either be continued or dissolved according to the merits as disclosed by the pleadings and the preponderance of the evidence. A defendant who has good ground for demurring is not under any obligation to demur ; but may, instead of demurring, meet the case by affidavit, and rely on the same objections as would have formed a good ground for demurring to the bill (&). 2. Where an interim order has been obtained, and simulta- neous applications have been made for an injunction, and to discharge the order, the plaintiff is entitled to begin (c). 3. An injunction cannot, on the motion to dissolve, be sus- tained on grounds not raised by the bill (c?). Nor is * 627 it competent * for the plaintiff, on the motion to dis- solve, to make a new case (e). 4. An injunction cannot be dissolved unless upon motion in open court. In pressing cases, however, the Lord Chancellor has occasionally appointed a special hearing at his house for that purpose (/). Unless the court gives special leave to the contrary, there must be at least two clear days between the service of notice of motion to dissolve, and the day named in the notice for hearing the motion Qg). If special leave be given by the court, the leave must be stated in the notice (A). The notice should be given for one of the days appropriated to the hearing of motions (i) ; but if a case of urgency be made out, leave may be had from the court to give notice of motion for a day not appropriated to the hearing of motions. The notice should state that the motion is with leave (Jc). The plaintiff is sometimes required by the interim order to undertake that he will accept short notice to discharge the order (I). (b) Jones v. Garcia Del Rio, T. & K. (c) Barker v. North Staffordsliire Rail- 297 ; Hudson v. Maddison, 12 Sim. way Co., 5 Ea. Ca. 401. 416 ; Barnsley Canal Co. !.. Twibell, 7 (/) Eden on Inj. 326. Beav. 19. (g) Consol Ord. XXXIII. r. 2. See (c) Fraser v. WhaUey, 2 H. & M. p. 611. 10. (h) HiU V. Rimmell, 2 M. & C. 641. (d) Cresy v. Beavan, 13 Sim. 99; \i) Steedman v. Poole, 11 Jur. 555. Burdett v. Hay, 33 L. J. Ch. 41 ; supra, Uc) Hill v. Eimmell, 2 Jur. 45. pp.618, 619. (I) Seton,867. [650] CH. XXIX.J DISSOLUTION OF INJUNCTION. * 628 5. In cases where an injunction has been obtained ex •parte, the court will, where an application is made on counter-affidavits to dissolve the injunction, entertain the application immediately, and will not give the plaintiff time to file affidavits in reply, unless it shall be of opinion that justice requires that he should have time allowed him for replying to the affidavits. With a view to the determination of the question, the court will hear as much, o^ the case as is sufficient to enable it to form a judgment in the matter {in). 6. The motion to dissolve should be made before the court by which the injunction was granted (n). But if the cause has been transferred to another branch of the court the application may be made to that branch of the court to which the cause *has become attached (o). If leave be reserved *628 a "Vice-Chancellor may vary an order, or dissolve an injunction, granted by the Lord Chancellor (p). 7. Upon motion to dissolve, the plaintiff in equity has no right to insist that the motion shall stand over in order to give him time to cross-examine witnesses who have made affidavits for the defendant (^) : affidavits filed in -support of statements introduced into the bill by amendment after injunction granted, and tending to support the injunction, cannot be read on motion to dissolve that injunction (r). 8. If, on the motion to dissolve an ex parte injunction, it ap- pear that the plaintiff has misstated his case, either by misrep- resentation, or by the suppression of material facts, so that an injunction has been obtained which would not have been obtained if a more accurate statement of the case had been made, the injunction will be dissolved on that ground alone (s)} The (m) Anon. (r) Prince Albert v. Strange, 1 Mac. (n) George v. Watmouth, 4 L. J. Ch. & G. 25, 47. N. S. 61 ; Bell v. HuU and Selby Eail- (s) Brown v. Newall, 2 M. & C. 558, way Co., 1 Ra. Ca. 616; Paredes v. 570; Semple W.London and Birming- Lizardi, 9 Beav. 490. See Hammond ham Railway Co., 1 Ra. Ca. 493 ; Bell V. Smith, 15 L. J. Ch. 40 ; Castendieck v. Hull and Selby Railway Co., ih. 616 ; V. De Burgh, ih., 425, 4 Ra. Ca. 386. Greenhalgh v. Manchester and Birming- (o) Sturgeon v. Hooker, 1 De G. & S. ham Railway Co., 3 M. & C. 799 ; Sted- 484. man v. Webb, 4 M. & C. 346, 351; (p) George v. Watmouth, 4 L. J. Ch. Castelli v. Cook, 7 Ha. 89, 94 ; Dalglish N. S. 61 ; Pinchin v. London and Black- v. Jarrie, 2 Mac. & G. 238 ; Philipps v. wall Railway Co., 5 D. M. & G. 865. Prichard, 1 Jur. N. S. 750; Fitch v. (q) Normanville v. Stanning, 10 Ha. Rochfort, 18 L. J. Ch. 458. App. 20. See supra, p. 618. ^ And upon motion to dissolre the [651] *629 PRACTICE. [CH. XXIX. plaintiff will not be allowed to maintain it on the merits then disclosed (i). Nor can he be heard to say that he was not aware of the importance of the facts so misstated or con- cealed (u), or that he had forgotten them (a;). 9. But even though the affidavits on which the injunction was obtained may not have stated all the facts, there may not have been such misstatement or suppression as to lead the court to grant the injunction. In order that a misstatement may be material, there must have been a degree of misrepre- * 629 sentation or * suppression presenting a case different from the case which really existed, and having a ten- dency to lead the court to issue the injunction (y). If the case has been properly brought forward, and there has been no concealment, the court, if any consideration has been over- looked, will say it has itself to blame for not having looked more carefully into the case (2). The plaintiff is only bound by the facts which he states, and not by his statements of the legal consequences arising from the facts stated (a). Nor, indeed, may his ignorance of the fact, that the act of which he injunction the court will dismiss the bill where it appears from the answer that the cause is in possession of an- other court of concurrent jurisdiction. Withers v. Denmead, 22 Md. 135. A want of due diligence in prosecuting a suit in equity is cause for dissolving an injunction. Hoagland v. Titus, 1 Mc- Carter,(N. J.)81 ; Sohalk v. Schmidt, ib. 268. Although the answer denies all the equity of the bill, yet if the case made by the bill seems to require investiga- tion, and irreparable injury would be sustained by a dissolution of the injunc- tion, it will be retained. Ib., and see Mc- Kibbiu V. Brown, 1 McCarter, (N. J.) 13 ; Dubois 1;. Budlong, 10 Bosw. (N. Y.) 700-; Mimes v. McLean, 6 Jones Eq. (¥. C.) 200; Gardner W.Perkins, 9 Cal. 653; Scott V. Ames, 8 Stockt. 261. See Johnson v. Wide West, &c., Co., 22 Cal. 479. Where new matter is intro- duced in an answer, in avoidance of the plaintiff's equity, it will not be con- sidered on a motion to dissolve the injunction. Allen v. Pearce, 6 Jones, Eq. (N. C.) 309. The rale that a mo- tion to dissolve an injunction before answer must be supported by affidavit, is a rule of practice for the relief of the court, and not for protection of com- [652] plainant. Kneedler v. Lane, 3 Grant, 523. A complainant may properly make every one a party who is a partici- pator in the fraud. He has a right to do this for the purpose of discovery, and the general rule is, that he has a right to hold his injunction until he obtains that discovery. Robinson v. Davis, 3 Stockt. 302. But although the general rule ' is that an injunction properly granted will not be dissolved until all the defendants have answered, there are many exceptions to it. Baltimore and Ohio Railroad t). Wheeling, 13 Gratt. 40. (() Att.-Gen. v. Corporation of Liver- pool, 1 M. & C. 211; Hilton v. Lord Granville, 4 Beav. 131 ; De Fencheres V. Dawes, 11 Beav. 46 ; Castelli v. Cook, 7 Ha. 89, 94 ; Dalglishw. Jarvie, 2 Mac. & G. 238 ; Eitch v. Rochfort, 18 L. J. Ch. 458. (u) Att.-Geri. v. Corporation of Liver- pool, 1 M. & C. 210, 211 ; Dalglish v. Jarvie, 2 Mac. & G. 241. (x) Clifton 1). Robinson, 16 Beav. 355 ; Sheard v. Webb, 2 W. R. 343. iy) 571. {-) la) 558. Brown v. NewaU, 2 M. & C. 558, CastelU V. Cook, 7 Ha. 89, 94 Brown v. NewaU, 2 M. & C. CH. XXIX.] DISSOLUTION OP INJUNCTION. * 630 complained was being put a stop to at the time when he applied for the injunction, amount to such a misrepresentation as to lead the court to hold that the injunction was improperly ob- tained. It is enough if the facts were stated as they were shortly before the filing of the bill, and that the plaintiff was not aware of the fact at the time of the application (6). The court does not deal with the same severity and strictness in the case of an injunction obtained on motion, as with an injunction obtained ex parte ; but the circumstances of the case jnay be such as to call upon the court to visit the plaintiiff with the same severity (c). 10. A man who has obtained an ex parte injunction which was afterwards dissolved on the ground of concealment of material facts, is not precluded from making an application for another injunction on the merits (c^). 11. Under the old law, if the injunction were to restrain pro- ceedings at law until answer, the defendant was entitled, after a sufficient answer had been put in by him, to move at once to dissolve, which was also a question of course, unless the plain- tiff undertook to except to the answer, or to show cause on the merits confessed by the answer that there was sufficient equity to continue the injunction (e). The recent changes in the practice of the court not having entirely assimilated the * practice on applications to stay proceedings at law * 630 with the practice in special injunctions, but " so far only as the nature of the case will admit," some parts of the former practice are still in force (/). Accordingly, where injunctions have been granted to restrain proceedings at law " until answer," or " until answer or further order," or " until answer with liberty to apply," or any similar terms, the purpose of the injunction being the discovery to be got by the answer, the defendant is still, as under the old practice, not entitled to move to dissolve until a sufficient answer has been put in (^) ; but as soon as (b) Semple v. London and Birming- C. See King u. Abbotson, 7 L. J. ham Railway Co., lKa.Ca. 493. Exch. N. S 6 (c) Maclaren v. Stainton, 16 Beav. /) Loyell u. Galloway, 17 BeaT. 1. 279 290 (?) Mollett v. Eneqmst, 26 Beav. id) ritch V. Kochfort, 18 L. J. Ch. 467; Ooddeen v. Oakley, 2 D. F. & 458 See Philipps v. Prichard, 1 Jur. J. 161. See Howes v. Howes, 1 Beav. N. S. 750. 197. le) 3 Drew. 133, per Kindersley, V. * [653] * 631 PRACTICE. [CH. X2IX. an answer, the sufficiency of which is not denied, has been filed within the prescribed time (A), or as soon as the plaintiff has allowed the time for excepting to expire (i), he is entitled as of course to have an injunction granted for the purpose of discovery dissolved.^ The plaintiff cannot have it continued upon a case made by amendment (y). He must file a fresh bill if he wishes further discovery (Jc), or if an injunction on the merits is desired after a full answer has been put in (J). The filing a plea does not entitle a defendant to have an in- junction until answer dissolved (m). The application to dis- solve must be upon notice (w). 12. The court has refused to entertain a motion to dissolve an injunction pending an application for the production of documents (o). 13. If an injunction has been granted against two or more persons, each of them must move to dissolve. As to the party who applies, an injunction will be dissolved, but not as against the others who have not applied (p). Where there are several defendants to a bill for an injunction restraining proceedings at law until answer, the general rule is that the injunction * 631 is not * to be dissolved until all have answered (g) ; (A) See Fox v. Hill, 2D. & J. 353; dissolved before the answers of merely Ooddeen v. Oakley, 2 D. F. & J. 158. nominal defendants are filed. Shricker (t) MoUett t). Bnequist, 25 Beav. 609, u. Field, 9 Iowa, 366. To dissolve an 26 Beav. 466. injunction, the denial of the answer (_/) MoUett V. Enequist, 25 Beav. must be of facts within the knowledge 609, 26 Beav. 466. of the party denying under oath. But (Ic) lb. when the answer is by a corporation, (/) Magnay v. Mines lioyal Co., 3 and the facts are not alleged to be, and Drew. 130, 133. from their nature could hardly be (m) Wroe v. Clayton, 10 Sim. 185. within the knowledge of the person (n) Ooddeen !).Oakley,2D.F.&J.161. making oath, or of the corporation, it is (o) Storer v. Jackson, 12 Sim. 503. immaterial whether the denial of the (p) Bramwell v. Halcomb, 3 M. & C. corporation under seal is equivalent 737. A plaintiff cannot without giving to a denial under oath, for the purpose notice read the answer of a defendant of dissolving injunction. Higbee v. against a co-defendant. Feilden v. Sla- Camden and Am. Railroad, 4 C. E. ter, 7 L. R. Eq. 523. Green, 276. See, also, Morris Canal w. (?) White V. Steinwacks, 19 Ves. 84 ; Fagan, 3 C. E. Green, 215 ; Suffern v. Nanneyv. Vaughan, 8 Sim. 439; Bowles Butler, ti. 220. But whether or not to V. Orr, 1 Y. & C. 474. See Lewis v. dissolve an injunction even upon a full Smith, 7 Beav. 470. denial of the equity of the bill is a 1 Filing exceptions to an answer con- matter within the discretion of the stitutes no objection to the dissolution court. Camden and Am. Railroad v. of the injunclion, if the equity of the Stewart, 3 C. E. Green, 489 ; Irick v. bill on which the injunction rests has Black, 2 ib. 190. Injunction will not been fully answered. Roberts v. Hodges, be dissolved upon new matter alone 1 C. E. Green, (N. J.) 299; McGee v. setup in the answer. The Society u. Smith, t6. 462. AJid an injunction may be Low, 2 C. B. Green, 19. [654] CH. XXIX.J DISSOLUTION OF INJUNCTION. * 632 but there are exceptions to the rule, and an injunction may often be dissolved as to those who have answered without waiting until all have answered (r). If all the defendants have an- swered, some of them may move to dissolve as against all (s). 14. In an interpleader suit the notice to dissolve the injunc- tion must be served on all the defendants (t). In other cases one may move to dissolve in the absence of the rest (m). 15. A man who, since the granting the injunction, has become bankrupt, may move to dissolve without making his assignees parties. If the court shall be of opinion that it is necessary to protect the interest of the assignees, and that injustice would be done to them by allowing the injunction to continue, it will dissolve the injunction at the application of the bankrupt, although the assignees are not before the court (v). 16. If the application to dissolve be made by a stranger to the suit in which an injunction has been obtained, he may properly proceed by petition to set aside the injunction (w) . 17. In cases where the order for an injunction is irregular, a motion should be made to discharge the order, not to dissolve the injunction. By moving to dissolve the injunction the irregularity is waived (x).^ The court will not, on an applica- tion to discharge an order for irregularity, sustain it on the merits (y). Where an order has been made on motion, and aflSdavit of service in the absence of parties, the court will, on proper * application, give the absent party leave * 632 to move to discharge (a). (r) Joseph w. Doubleday, 1 V. & B. (x) Vipan u. Mortlock, 2 Mer. 476; 497 ; Caird v. Campbell, 2 Moll. 399 ; Angier v. May, 3 W. R. 330. Kilby V. Stanton, 2 Y. & J. 75 ; Impe- (y) Brooks v. Purton, 4 Beav. 494; rial Gas-light Co. v. Clarke, Younge, St. Victor v. Derereux, 6 Beav. 584. 580 ; Glascott v. Copper Mines Co., 11 (z) Mapp w. Elcock, 22 L. J. Ch. 707. Sim. 314; Lewis v. Smith, 7 Beav. i An injunction granted in a casein 470; Money v. Jordan, 13 Beav. which the court has jurisdiction, if 229. See Prince v. Haydin, 3 Y. & J. 190. erroneously granted, is voidable only, (s) Macgregor W.Cunningham, 16 Sim. not void; and until set aside it is en- 365. See Montague v. Hill, 4 Euss. 128. titled to obedience. The People v. {t) Masterman v. Lewin, 2 Ph. 182, Sturtevant, 9 N. Y. 263. An injunction 186 ; supra, p. 130. may always be vacated on motion, when («) Joseph V. Doubleday, 1 V. & B. the reasons for granting it have ceased 497 ; Money v. Jordan, 13 Beav. 229. to exist ; as when a railroad company See, however, Thompson v. Geary, 5 enjoined by reason of the want of legis- Beav. 131. lative authority have since obtained (v) M'Beath v. Eavenscroft, 8 L. ,J. such authority. Wetmore u. Law, 34 Ch. N. S. 208. Barb. 515. (w) Bourbaud v. Bourbaud, 12 W. B. 1024. [655] * 632 PRACTICE. [CH. ZXIX. 18. Although an injunction may have issued irregularly, the irregularity may be waived by any act of the defendant, affirm- ing the subsistence of a regular injunction (a). The question whether there has been a misrepresentation or concealment of material facts upon the application for an ex parte injunction cannot be taken into consideration on appeal from an order made by the court in which the injunction was granted, or by which it was continued (6). 19. After long acquiescence under an order for an injunction, an application for dissolving it will not be readily entertained (c). Where an order for an injunction had been made in a case where the court had no jurisdiction, Lord Westbury would not disturb the order on the ground of the acquiescence of the defendant, but allowed it to stand over on the undertaking of the plaintiff (d!). 20. Delay in moving to dissolve an injunction may deprive a man of his right to have an injunction dissolved (e). So, also, on the other hand, delay in appealing from the refusal of a motion for an injunction may be a bar to the application (/). SECTION in. — EFFECT OF CEETAIN PROCEEDINGS ON INJUNCTIONS. 1. Effect of abatement of suit, on injunction. 2. Practice where relators to an information are dead. 3. Effect on injunction of bankruptcy of sole plaintiff. 4. Injunction granted "until answer or further order," &c., not dissolved ipso facto by putting in answer. 6. Effect of allowance of demurrer. 6. Allowance of a plea does not dissolve injunction. 7 & 8. Effect of amendment on injunction. 9. Supplemental bill does not put an end to the injunction. 10 & 11. Effect of dismissal of bill. 1. An injunction is not dissolved by the abatement of the suit in which it has been granted. The abatement of the suit by (al Travers v. Lord Stafford, 2 Ves. (d) Cardinall u. Molyneux, 7 Jur. N. 20; Vipan v. Mortloek, 2 Mer. 476. S. 854. (6) Bell V. Hull and Selby Railway (e) Bell v. Hull and Selby Railway Co., 1 Ra. Ca. 616. Co., 1 Ra. Ca. 616. (c) Glascott!;. Lang, 3 M. & C. 451; (/) Williams v. St. George's Har- Bickford v. Skewes, 4 M. & C. 500 ; bor Co., 2 D. & J. 547. See South Feistel v. King's College, Cambridge, Staffordshire Railway Co. v. Hall, 16 10 Beav. 491 ; Great Western Railway Jur. 39. Co. V. Oxford, Worcester, &., Railway Co., 3D. M. &G. 34L [656J CH. XXIX.] EFFECT OF CERTAIN PROCEEDINGS ON INJUNCTIONS. *634 the death of a sole plaintiff, or of a defendant, does not of itself * dissolve an injunction (^). If a sole plaintiff * 633 dies, the defendant may before decree serve a motion on his representatives that they may revive within a given time, or in default that the injunction should be dissolved (A). After a decree continuing an injunction, such an application is irregular (i), for the injunction is untouched and remains in force (A). If one of many plaintiffs dies, a similar notice is served on the solicitors of the surviving plaintiffs (Z). When an injunction has been obtained in a cause which afterwards abates by the death of the defendant, the practice is to move on the part of the defendant's representative that the plaintiff may revive within a limited time, or that the injunction be dissolved (wi). Upon the revival of the suit against his personal representatives the injunction stands without further order (n) . 2. Where relators to an information are all dead the court will restrain proceedings until a new relator Is appointed (o). 3. The bankruptcy of a sole plaintiff, though it renders the suit defective, does not dissolve an injunction which has been granted in the suit, but the defendant may serve notice of motion on the assignees to revive the suit within a given time, or that the bill may be dismissed (p). The bankruptcy of one of many plaintiffs does not affect an injunction, or prevent the defendant from moving to dismiss in due time for want of prosecution (^q). 4. An injunction which has been granted " until answer or further order," or " until answer with liberty to apply," is not * dissolved ipso facto by the putting in of a suf- * 634 (a) Ferrand v. Hamer, 4 M. & C. (o) Att.-Gen. v. Haberdashers' Co., 147:' 16Jur. 717. (A) Wheeler v. Malins, 4 Madd. 171, (p) Kandall. tj. Mumford, 18 Vea. 424 ; Consol Ord. XXXII. i. 4. See Lee v. Caird v. Campbell, 1 Moll. 484 ; Wheeler Lee, 1 Ha. 622 ; Fisher v. Fisher, 4 Ha. v. Malins, 4 Madd. 171. See Lord Hunt- 196 ; Price v. Berrington, 11 Bear. 90. ingtower v. Sherborne, 5 Beav. 380 ; U) Oldfield V. Cobhett, 20 Beav. Lee «. Lee, 1 Ha. 621 ; Fisher v. Fisher, 563. See Askew v. Townsend, 2 Dick. 4 Ha. 196 ; M'Beath v. Ravenscroft 8 471 L. J. Ch. N. S. 208; Meiklam v.M- (M 7J more, 4 D. &. J. 208 ; Jackson v. Eiga h) Adamson v. Hall, T. & E. 258. Railway Co., 28 Beav. 75. See, also, m) Stuart v. AnceU, 1 Cox, 411 ; Bourbaud v. Bourbaud, 12 W. E. 1024, Hill V Hoare, 2 Cox, 50. See 15 & 16 where the plaintiff was a foreigner. Vict. c. 86, s. 52. (?) Caddick v. Masson, 1 Sim. 501. (n) Kennedy v. Lloyd, 8 Ir. Eq. 581. 42 [657] * 635 PRACTICE. [CH. XXIX. ficient answer, but remains in force until it is discharged by the order of the court (r). 5. The allowance of a demurrer to the whole bill puts an end to an injunction which had been previously obtained (s). But leave will be given to amend without prejudice to an injunction, where a demurrer has been allowed to the bill on a technical ground alone (^). 6. The allowance of a plea does not dissolve an injunction. There may be some equity shown to continue it. An order for its dissolution must be obtained (m). 7. A plaintiff may, after obtaining an injunction, obtain an order to amend without prejudice to the injunction. Under the old practice an order to amend the bill witliout prejudice to the injunction might, in the case of special injunctions (a;), or in cases where an injunction to restrain proceedings at law had been obtained on the merits («/), be obtained of course (a). It was not necessary to save the injunction by inserting the words "without prejudice" in the order (a). Whether, under the old practice, an order to amend after the common injunction had been obtained, and before answer without prejudice to the injunction was an order of course, or to be moved for specially, does not appear to have been clearly settled (6). Nor, indeed, does it seem to have been clear whether it was necessary under the old practice to save the injunction by inserting the words " without prejudice" in the order (c). But the practice * 635 as to common and special * injunctions having been assimilated by 15 & 16 Vict. c. 86, s. 38, there can be no doubt that, under the present practice, an order to amend ()•) Ooddeen v. Oakley, 2 D. F. & J. (2) See Perrand u. Hamer, 4 M. & C. 161. 143. (s) Schneider v. Ligardi, 9 Beav. 468. (a) Warburton v. London and Black- (t) Rawlings v. Lambert, 1 J. & H. wall Railway Co., 2 Bear. 263. See 458; Harding v. Tingey, 10 Jur. N. S. Harvey v. Hall, 11 L. R. Eq. 81. 872; Low v. Routledge, 35 L. J. Ch. (6) Mason v. Murray, Dick. 536; 717. - Bliss V. Boscawen, 2 V. & B. 102 ; Sharp (m) Philipps u. Langhorn, Dick. 148 ; v. Ashton, 3 V. & B. 144; Davis v. Eerrand v. Hamer, 4 M. & C. 143, 147. Davis, 2 Sim. 515 ; Warburton v. (x) Pickering v. Hanson, 2 Sim. 488, London and Blackwall Railway Co., 2 correcting report In Pratt v. Archer, 1 Beav. 253 ; Ferrand v. Hamer, 4 M. & Sm. & St. 433 ; Warburton u. London C. 143 ; Brooks v. Purton, 1 Y. & C. and Blackwall Railway Co., 2 Beav. C. C. 271. 258. (c) BUss V. Boscawen, 2 V. & B. {y) King v. Turner, 6 Madd. 255 ; 102 ; contra, Davis v. Davis, 2 Sim. 516 ; WoodroflFe v. Daniel, 9 Sim. 410. Warburton v. London and Blackwall [658] Railway Co., 2 Beav. 253. CH. XXIX.] EFFECT OP CERTAIN PROCEEDINGS ON INJUNCTIONS. *636 is in all cases of course, and that the injunction whether ex- pressly saved or not is unaffected, unless the record is changed, or the equity on which the injunction was obtained is displaced or materially altered by the amendments (t ,» &' S«^a, pp 134-137. ^ . /) B^% "■ ^^^1%' 1 S" ^ ^- 7«- a) Dickenson v. Grand Junction M Supra, pp. 227-2^9. Canal Co., 15 Beav. 260. (h) Askew v. Xownsend, 2Dick. 471 ; supra, p. 133. [661] 638 PRACTICE. [CH. XXIX. SECTION v.— CONSEQUENCES OE THE BREACH OE AN INJUNC- TION OR RESTRAINING ORDER. 1. Injupction or restraining order must be implicitly observed. 2. Court will not punish for contempt unless party knew order had been passed. 8. Enough to show that the party had notice of the order. 4-8. Order for committal how obtained. How service is made. May move to commit one of the defendants only. 9. Breach of injunction or order must be clearly shown. 10. Obtaining injunction by misrepresentation, a contempt. 11 & 12. Threatening letters, &c., to plaintiff or his witnesses, a contempt. 13-17. Other acts which are a contempt. 18. Persons not named in the writ of injunction not liable to be committed. 19. Party not committed for acts of servants. 20. Injunction protects whom. 21-24. Defences to charge of contempt. 25 & 26. Practice upon hearing on charge of contempt. 1. An order for an injunction, or interim restraining order, must be implicitly observed, and every diligence must be exer- cised to obey it to the letter (i). However erroneously or irregularly obtained, the order must be implicitly observed so long as it exists. A party affected by it cannot disregard it or treat it as a nullity, but must have it discharged on a * 638 proper application (/c). * A man who does not obey it to the letter so long as it exists is guilty of contempt, unless there be something to mislead upon the plain reading of the order (Z). An undertaking entered into with the court is equivalent to, and will have the effect of an injunction so far that any infringement thereof may be made the subject of an application to the court (?w). 2. The court will not punish for a breach of injunction or restraining order, unless it be clear that the party alleged to be in contempt knew that the injunction had issued, or that the \ (t) Harding u. Tingey, 12 W.R. 684; (Z) Spokes v. Banbury Board of Spokes V. Banbury Board of Health, 1 Health, 1 L. R. Eq. 42. See Russell L. R. Eq. 42. V. East Anglian Railway Co., 3 Mac. & {k) Woodward v. Earl of Lincoln, 3 G. 104. Sw. 626. See Partington v. Booth, 3 (m) London and Birmingham Rail- Mer. 149 ; Fennings v. Humphery, 4 way Co. v. Grand Junction Canal Co., Beav. 1 ; Blake v. Blake, 7 Beav. 514 ; 1 Ra. Ca. 224 ; Att.-Gen. v. Manchester Chuck V. Cremer, 2 Ph. 113 ; South and Leeds Railway Co., ib. 436 ; Law- Staffordshire Railway Co. v. Hall, 16 ford v. Spioer, 2 Jur. N. S. 564; Att.- Jur. 93 ; Russell v. East Anglian Rail- Gen. v. Boyle, 10 Jur. N. S. 809. way Co., 3 Mac. & G. 104. Comp. Daw V. Eley, 3 L. R. Eq. 496. [662] CH. XXIX.] CONSEQUENCES OF BREACH OP AN INJUNCTION. * 639 order had been made. He ought, strictly speaking, to be served with the writ or order itself in the manner already pointed out («). But if the matter is pressing, and there is not time to procure it, the service of the writ or order itself will be dispensed with, and service of a copy of the minutes of the order, or of a notice of its having been obtained, will be suffi- cient. An injunction operates from the date of the order, and not from the time of sealing. If, after service of the notice or the copy of the minutes, the defendant or other party in con- tempt acts in opposition to the order, he is guilty of a contempt, and may be committed (o).i 3. A committal may, indeed, be ordered where neither the writ nor the minutes of the order have been served, nor any personal notice given. It is enough if a man can be shown to have had notice of the order ; as, for instance, if he were in court at the time the order was made (p). If, indeed, a man remains in court until the order is about to be made, he cannot, by leav- ing before the order is actually pronounced, avoid its conse- quences (§'). In one case (»•) Lord Eldon observed that if the party admitted that he believed the order was made, the principle was the same as if * his belief was formed * 639 from information, short of actual notice, and that there would be authority enough to apply the practice, if the defend- ant would not swear tliat he did not believe the order was pronounced. There must, however, be no unnecessary delay in getting the order drawn up, or the writ under seal, and in serving it when obtained (s). In a case where the plaintiff had delayed in getting the order drawn xip and served, the court (n) Supra, p. 625. 246. JFailure to have service made of (o) M'Neill V. Garratt, Cr. & Ph. 98; the original subpoena with the bill and Gooch V. Marshall, 8 W. R. 410; supra, injunction seasonably for the term to p. 625. which the subpoena was made returnable, {p) Anon., 3 Atk. 567 ; Skip v. Har- does not operate a discontinuance of wood, lb. 564. the proceedings, so that the order of the (g) Hearn v. Tennant, 14 Ves. 136. chancellor and the injunction issued in (r) Kimpton v. Eve, 2 V. & B. 351. pursuance of it become vacated and (s) 2b. ; Van Sandau v. Rose, 2 J. & void. If the defendant is apprised of W. 264. See Bateman v. Wiatt, 11 the existence of the injunction it is Beav. 587. operative upon him, and he may not dis- 1 A party is guilty of contempt if he regard and violate it, though service stand by and quietly suffer an injunc- may have been improperly delayed so tion to be violated. Proceedings for far as to afford adequate ground for a contempt are to punish the guilty party, dissolution. Howe v. "Willard, 40 Vt. and to compel restitution to the party 655 ; Stimpson v. Putnam, 41 Vt. 238. injured. Stimpson v. Putnam, 41 Vt. [663] * 640 PRACTICE. [CH. XXIX. would not treat the defendant as in contempt, although he was present in court at the hearing of the motion (f). 4. The order for committal is obtained upon motion, notice of which must be duly served personally upon the party commit- ting the contempt (u). The terms of the notice should be that the party " may stand committed " to Whitecross prison for breach of the injunction (x). If the breach has been com- mitted by a person not named in the writ or order, the notice of motion must be that he may be committed for his contempt in knowingly assisting in the breach (jj'). The plaintiff may obtain an order ex parte that the defendant may stand com- mitted on a certain day, unless he shows cause against it. The order must be served personally on the defendant (2). An ex parte order, however, for immediate committal is not irregular (a). 5. If there has been personal service of motion, or of the order nisi, service on defendant's solicitor is not necessary (&). If it can be satisfactorily shown that personal service cannot be effected, the plaintiff may, on a proper. case being made out, obtain an order that substituted service may be made, and upon an affidavit of such service an order for his commitment may be made (c). 6. A motion to commit can only be made on a seal day (c?). ' The motion must be supported by affidavits (e). The affidavits in support of the application should specify the particu- * 640 lar acts constituting * the breach. A general allegation that the defendant has violated the order is not suffi- cient (/). Affidavits filed originally to obtain an injunction may be used to show that the contempt charged has been com- mitted (^). There must be an affidavit of personal service (A). 7. The breach of an injunction being in the nature of a It) James v. Downes, 18 Ves. 522. (6) Bowdler v. Bowdler, 9 L. J. Ch. ■ (w) Angerstein v. Hunt, 6 Ves. 488. N. S. 394. (x) Dan. Ch. Pr. 1523. (c) Pulteney v. Shelton, 5 Ves. 147. (y) Lord "Wellesley v. Earl of Morn- (d) Saxby v. Saxby, 7 Sim. 140. ington, 11 Bear. 180, 181. c) lb. (z) Durant v. Moore, 2 E. & M. 38 ; (/) Morris v. Morris, 1 Hog. 238. Lechmere-Charlton's case, 2 M. & C. \g) ThomhiU v. Thornhill, 1 Jur. N. 316. S. 73. (a) Ex parte Clarke, 1 E. & M. 563. {h) Van Sandau v. Rose, 2 J. & W. [664] 264; Gooch v. Marshall, 8 W. E. 410. CH. XXIX.] CONSEQUENCES OF BREACH OF AN INJUNCTION. * 641 wrong, it is no objection that the plaintiff has moved to commit one of the defendants only (t). 8. Lord Eldon is reported to have said that a motion to com- mit for breach of an injunction could not be made without a pro- duction of the writ (7). But in a case before Lord Cottenham, he held that if a party having notice of an injunction is guilty of a breach of it, he may be committed without the production of the writ (Jc). 9. An order for commitment is strictissimi juris, and cannot be sustained, unless it can be shown upon the clearest evidence that there has been an actual breach of the injunction or the order (T). If the injunction be in general terms restraining a man from doing acts which shall be attended with certain specified effects, and not from doing certain specified acts, the court must be satisfied upon the clearest evidence that the acts complained of have resulted from the cause assigned (m). The general terms of an injunction will not, however, be restricted by reference to the particular injury complained of, if it has been in spirit violated (n). In determining whether there has been a breach, the court must have regard to the circumstances under which, and the objects for which, the injunction was ob- tained (0). In a case where an injunction had been obtained for the purpose of restraining a man from pulling down houses, the * court held the injunction not broken by * 641 defendant obtaining an entry into the house by breaking a window and the lock of one of the doors, the plaintiff having excluded the defendant by shutting the doors and windows (_p). An intention to violate an injunction is immaterial, unless the breach be actually carried into effect Qq). Thus, where an injunction was granted restraining a man and his servants from stopping, impeding and obstructing the passage of boats, &c., along a canal, the placing of a bar which was capable of being (i) Newman v. Ring, 10 Jur. 463. (m) Dawson v. Paver, 5 Ha. 424. )■) EUerton v. Thirsk, 1 J. & W. In) Att.-Gen. a. Great Northern Rail- 376 way Co., 4 De G. & S. 75. (k) M'NeUI V. Garratt, Cr. & Ph. (0) Loder w. Arnold, 15 Jur. 117. See^ 98. Russell v. East Anglian Railway Co., 3 (Z) Mann «. Stephens, 15 Sim. 377; Mac. & G. 104. Dawson v. Paver, 5 Ha. 424 ; Grand (p) Loder v. Arnold, 15 Jur. 117. Junction Canal Co. v. Dimes, 17 Sim. (q) Grand Junction Canal Co. v. 38 ; Harding v. Tingey, 12 W. R. 684 ; Dimes, 17 Sim. 38. Daugars v. Rlvaz, 1 W. N. 301. [665] * 642 PRACTICE. [CH. XXIX. easily moved across the canal, and the stationing of persons at a bridge on the canal to give notice to persons passing along that they were trespassing, without, liowever, attempting to stop them, or bringing actions of trespass, is not a breach (r). 10. The obtaining an injunction ex parte upon misrepresenta- tion or suppression of facts is not a contempt of court which will be punished by attachment (s). If a plaintiff who has obtained an injunction misrepresents to the public what has been done by the court, and the defendant, to correct that misrepresenta- tion, does an act which in strictness is a breach of the injunc- tion, the court will not entertain any complaint against him on the part of the plaintiff for such a breach (f). 11. The publication of attacks on the plaintiff or his wit- nesses, or the sending threatening letters addressed to him or them pending a suit, is a contempt of court upon which to found an order for commitment (u). 12. It is a contempt of court to publish in a newspaper, after the affidavits in a cause have been filed, but before the hearing, an article holding iip to ignominy, or attributing falsehood to the person making the application, or his witnesses (»). In order to purge his contempt, the publisher must express his * 642 regret and * contrition to the court, and is not obliged to apologize to the persons to whom the falsehood was attributed (x). Although the court will punish as a contempt any piiblication of its proceedings which may tend to prepos- sess the public mind, or disturb the free course of justice, it is not every unfair proceeding or advertisement, or other publica- tion containing erroneous statements, that it will punish by committal («/). 13. It is a breach of an injunction, restraining an action at law, to obtain a judge's order to change the venue in the action (z), (r) Grand Junction Canal Co. v. N. S. 1026 ; Coleman v. West Hartle- Dimes, 17 Sim. 38. pool Railway Co., 8 W. K. 734. (s) M'Carthy v. Maguire, 1 Moll. 47 ; (w) Littler v. Thompson, 2 Beav. Brown v. NewaU, 2 M. & C. 558. 129 ; Felkin v. Herbert, 10 Jur. N. S. (<) Bartield v. Nicholson, 2 L. J. Ch. 62. 90. {x) Felkin v. Herbert, 10 Jur. N. S. (u) Anon., 2 Atk. 469 ; Lechmere- 62. Charlton's case, 2 M. & C. 316; Littler {y) Matthews v. Smith, 3 Ha. 331; ». Thompson, 2 Beav. 129 ; Ex parte Brook v. Evans, 6 Jur. N. S. 1026. Van Sandau, 1 Ph. 455 ; Birch u. Walsh, (z) Pariente v. Bensusan, 13 Sim. 10 Ir. Eq. 93 ; Smith v. Lakeman, 26 522. L. J. Ch. 805 ; Brook v. Evans, 6 Jur. [666] CH. XXIX.J CONSEQUENCES OP BREACH OP AN INJUNCTION. * 643 to give notice of trial (a), or to deliver a declaration (5). If an injunction has been granted staying execution, the taking a single step towards execution beyond the completion of the judgment is a breach of the injunction (c). Where an injunc- tion has been obtained even after execution executed, it -is a breach to call upon the sheriif to pay over the money, but if the sheriff has voluntarily paid over the money it seems there would be no breach (rf). 14. It is a breach of an injunction restraining 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 (e). So, also, where legal process had been put into the sheriff's hands before the issuing of the injunction, and the plaintiff at law did not, on being applied to by the sheriff for further instructions, stop the process, it was held that the refusal to countermand the writ was an actual continuance of the order previously given by the plaintiff at law to the sheriff, and was a contempt (/). 15. If an injunction is obtained by a defendant at law who has * given bail, the proceeding against tlie bail is * 643 £), breach (^) ; but where an injunction to restrain pro- ceedings at law has been obtained by an obligor in a joint and several bond upon a bill to Which the co-obligor was not a party, a proceeding at law against the co-obligor is a breach of the injunction (A). 16. If an injunction has been granted against three plaintiffs at law, and dissolved only as against two, it is a contempt of court for the three afterwards to go on with the action ; but if the injunction has been dissolved generally, and not as against two only, it is not a contempt for the two to proceed in the name of the three (i). Nor is the assignee of a chose in action guilty (a) Bird o. Branck^r, 2 Sm. & St. (d) Axe v. Clarke, 2 Dick. 549. But 186. see, per Lord Bldon, Franklyn v. lb) Mills V. Cobby, 1 Mer. 3. See, Thomas, 3 Mer. 234 ; Hawkshaw v. also 3 P W 147 Parkins, 2 Sw. 539. Ic) Bullen v. Ovey, 16 Ves. 141; le] Partington d. Booth, 3 Mer. 148. Mills V. Cobby, 1 Mer. 3 ; Franklyn v. (/) Woodley v. Boddington, 9 Sim. Thomas, 3 Mer. 225 ; Brooks v. Pra-ton, 214. , . .. „ 1 Y & C. C. C. 275 ; Burbidge v. Robin- (9) 1 V. & B. 19 ; Leonard v. Attwell, son, 14 Jur. 473. See Marsack W.Bailey, 17 VeS. 886. , ,r » -r. ,0 2 Sm. & St. 577. Comp. Hankey v. (h) Chaphn v. Cooper, 1 V. & B. 19. Morris, 2 Eq. Ca. Ab. 528. («) Money v. Jordan, 13 Beav. 229. [667] * 644 PBACTICB. [CH. XXIX. of a breach of injunction by taking proceedings at law after the dissolution of the injunction against himself, though the injunction has not been dissolved as against the assignor (Jc}. 17. Where a creditor proceeds against an executor after notice of a decree to account, or after decree in an administration suit, it is so far a contempt that he will be deprived of all costs after receipt of notice of the decree (Z). 18. Persons not named in the order or writ of injunction are not liable to be committed for the breach of an injunction by which they are enjoined (m). Thus, where an injunction re- strained only A. B., but did not extend to " his servants and agents," the court declined to commit an agentof A. B. for breach of the injunction, inasmuch as he was not expressly enjoined in terms («). So, also, an injunction restraining a defendant, his servants and agents, does extend to his tenants (o). The agents, however, of a man against whom an injunction has been awarded will be committed for contempt, if having knowl- edge of the injunction they act in contravention of the order of the court (p). 19. If no blame can be attached to a man personally, * 644 the court * will not commit him for contempt because his servants may have violated the injunction (^q). But a man may be guilty of a breach of injunction by aiding and abetting those who are committing an act inconsistent with it, although he may not actually have taken part in such an act. Thus, where an injunction had been granted to restrain A., his servants and workmen, from cutting wood, it was held a breach of the injunction in A. to be present and be acting as leader where a number of poor people drove away the servants of the plaintiff and cut wood, although A. did not actually assist, but dissuaded the people from using violence, the ground being that remaining and acting as a leader, and not actually inter- {h) Imperial Gas-light Co. v. Clarke, (o) Hodson v. Coppard, 29 Beav. 4. Younge, 584. (p) Lord Wellesley v. Lord Morning- {l) Curre v. Bowyer, 3 Madd. 456; ton, 11 Beav. 181. See Povrel «. Toilet, supra, p. 118. Dick. 116 ; Lewes v. Morgan, 5 Pri. (m) Iveson v. Harris, 7 Ves. 256. 518. (n) Lord Wellesley w. Lord Morning- (q) Eantzen v. Rothschild, 14 W. B. ton, W Beav. 180. See Montague v. 96. HiU, 4 Kuss. 128. [668] CH. XXIX.] CONSEQUENCES OP BREACH OP AN INJUNCTION. *645 fering to prevent the act complained of, he was, in the opinion of the court, inferentially assisting and aiding them (r). 20. An injunction protects only those named in the record, but if those named in the record can procure other parties equally interested with themselves to submit to the same terms as the plaintiffs on the record submit to, the court will give them the same relief or protection as to the plaintiffs on the record (s). 21. It is open to a man who is charged with having commit- ted a breach of an injunction to show that the order carried on its face the period of its duration,- and that, as that period has expired, there is no order which he has been guilty of infringing ((). 22. If there has been long delay in executing a warrant of commitment, the court will not entertain an ex parte applica- tion having for its object the enforcement of the order under which the warrant was- issued. The plaintiff must get a new order on a motion to commit, or move on motion that cause may be shown why a new warrant should not issue (m). 23. The plaintiff may by acquiescence in the breach of an injunction deprive himself of the right to move for the commit- ment of the defendant, but there must, in order to deprive the party who has obtained the order of the right to move for commitment *upon breach, be a case made out *645 almost amounting to such a license to the party enjoined to do the act enjoined against,-as would entitle him to maintain a bill against others from doing that act. The party enjoined must show such acquiescence as would be sufficient to create a new right in him. In a case where the court had granted an injunction to restrain the use of a trade-mark, and a breach had talren place, the court held that unless the de- fendant could show satisfactorily that he intended to use, and unless he undertook to use a particular mark which would not interfere with the plaintiff's mark, there must be an order for his committal (v). (r) St. John's College V. Carter, 4 M. (u) St. John's College v. Carter, 8 & C. 497. See Woodward v. Earl of Jur. 1036. ■„ o t. ht ^ p Lincoln, 3 Sw. 626. (") Rodgers v. NowiU, 3 D. M. & G. (s) Lund V. Blanshard, 4 Ha. 290. 619. It) Daw V. Eley, 3 L. E. Eg. 496. * ' [669] * 646 PEACTICE. [CH. XXIX. 24. If the party guilty of a breach of injunction is a peer or a member of Parliament (2;), or a corporate body («/), or a com- pany, or a person against whom process of contempt cannot issue, whether from his being out of the jurisdiction («) or otherwise (a), the proper course is to move that a writ of sequestration shall issue (5), 25. If, upon hearing the affidavits on both sides, the court shall be of opinion that the party is guilty of a breach of injunc- tion, it makes an order for his commitment, and he will not be discharged unless he pays the adverse party his costs (t). But where the breach is not wilful or contemptuous, or if the defendant has endeavored to set himself right, or expresses his regret for what he has done, the court is generally satisfied by merely making him pay the costs of the application of bringing the breach under the notice of the court (cZ). * 646 26. * An order for commitment for breach of an in- junction must state the affidavit of service of the restrain- ing order or injunction, and either the affidavit of service of the notice of motion to commit, or the appearance of counsel for the defendant upon the motion (e). The order ought in strict- ness to be prefaced by an express adjudication that the act com- plained of is a contempt, but the absence of such adjudication is not a ground for discharging such an order for irregularity. It is not irregular to engraft upon the order an order that the party committed shall pay the costs of his contempt ; but, if the order extends to chai-ges and expenses as well as costs, it is to that extent irregular (/).■' (x) Rantzen v. Rothschild, 14 W. R. tington v. Booth, 3 Mer. 149 ; Marsack 96. Comp. Lechmere-Charlton's case, v. Bailey, 2 Sim. & St. 577 ; Woodley 2 M. & C. 316. V. Boddington, 9 Sim. 214 ; Littler v. (y) Att.-Gen. v. Great Northern Rail- Thompson, 2 Beav. 129 ; Brooks v. way Co., 4 De G. & S. 75 ; Spokes v. Burton, 1 Y. & C. C. C. 277 ; Newman Banbury Board of Health, 1 L. R. Eq. v. Ring, 10 Jur. 463 ; Lawford v. Spicer, 42. See East India Co. u. Kynaston, 3 2 Jur. N. S. 564; Lane v. Sterne, 3 Giff. Bligh, 153, 163. 629 ; Harding v. Tingey, 12 W. R. 684; (z) Ee East of England Bank, 2 Dr. & Rantzen v. Rothschild, 14 W. R. 96. Sm. 284. (e) Stephens v. Workman, 11 W. R. (a) See Storerw. Great "Western Rail- 503: way Co., 1 Y. & C. C. C. 180. (/) Ex parte Van Sandau, 1 Ph. 605. (6) See as to writ of sequestration, ^ Where the principal defendant had Empringham v. Short, 8 Ha. 461 ; filed his bill in equity, and obtained a Tatham v. Parker, 1 Sm, & G. 513. temporary injunction to stay plaintiffs' (c) Harr. Ch. Pr. action at law against him, and had s i) BuUen v. Ovey, 16 "Ves. 141 ; also, agreeably to the rule of court in Leonard v. Attwell, 17 Ves. 385 ; Par- such cases, filed his bond of indemnity [670] CH. XXIX.] CONSEQUENCES OP BREACH OF AN INJUNCTION. ^646 with sureties ; and wliere tlie principal defendant liad failed to maintain his said bill, and thereby become liable on his bond of indemnity, as the reason- able damages which plaintiffs should recover under such bond, it was held that during the time plaintiflfs were de- layed by said injunction they should be allowed to recover their legal tax- able costs, both in the suit at law and the bill in equity ; provided the plain- tiflfhas not and cannot realize the same on the original proceedings against the principal defendant ; also plaintiffs' rea- sonable counsel fees, which they are liable to pay in both of the original cases for the same time, — but not in- terest accruing on the original note in the suit at law, unless plaintiff can show that the original defendant has become insolvent since the injunction, or that the plaintiff has suffered some damage equal to such interest, without fault. Derry Bank v. Heath, 45 N. H. 524. But a liability to pay money as for counsel fees, if it has not been actually paid, will not entitle the plaintiff to a judgment for damages. Prader v. Grimm, 28 Cal. 11. See, also, ib. 539, as to amount of damages and that several suits may be brought by joint obligees. Where a party was re- strained by injunction from taking possession of a farm from March to September, he was allowed, in an ac- tion on the injunction bond, to show not only the value of the use of the land during that period, but that he lost the crops for the season by being kept out of the land. Edwards v. Ed- wards, 31 111. 474. A dissolution of an injunction is a technical breach of the bond, for which nominal damages may be recovered. Stone v. Cason, 1 Ore- gon, 100. But it is held that where the suit in which the injunction is obtained is dismissed by the action of the party who obtained it, this constitutes no ad- mission that it was improperly sued out, which must be proved before damages can be recovered. Gelston v. White- sides, 3 Cal. 309. A bond given on the issuing of an injunction is for the benefit of all the defendants that are enjoined, whether served with the process of in- junction or not. Hence, if a party, without any service of the injunction, obeys the injunction, he may, without any appearance, recover damages sus- tained by reason of the injunction. It has been held that it is the duty of the defendant to obey an injunction if he knows it has been granted, although it has not been served ; and if he disobeys it, he will be liable to an attachment. Cumberland Coal Co. v. Hoffman Steam Coal Co., 39 Barb. 16. To effect a regular service of an injunction, the writ itself, under the seal of the court, must be shown to the party against whom it issues, and a true copy thereof delivered to him. Personal service will be dispensed with where the party is out of the state or cannot be found. The modern practice is for the court, by special order, to dispense with per- sonal service where the defendant avoids , ithe service of the writ, or other circum- stances as render such order necessary or proper. Haring v. Kauffman, 2 Beasley, 398, and cases cited. Upon a bond conditioned for the payment of all costs and damages arising from the obligors obtaining an injunction, money paid by tlie obligee for counsel fees is recoverable. Corcoran v. Judson, 24 N. Y. 106; Edwards v. Bodine, 11 Paige, 224; Coates v. Coates, 1 Duer, 664 ; McRae v. Brown, 12 La. An. 181 ; Thaie v. Quan Wan, 3 Cal. 216. Dam- ages for injury to the defendant's credit by reason of the injunction, are not recoverable in suit on the bond. Hib- bard v. McKindley, 28 111. 240. And where the injunction was to stay a suit at law, the plaintiff was allowed to allege and show, as a breach of the con- dition of the bond, that, by reason of the delay In obtaining judgment and execution, occasioned by the injunction, the property of the defendant in the suit at law was so wasted, sold, incum- bered, and disposed of, that the plaintiff lost his debt. Tryon v. Eobenson, 10 Richardson's Law, (S. C.) 160. [671] INDEX. THE FIGUKES BEFER TO THE STAR PAGIHG. ABATEMENT OF SUIT, injunction not dissolved by, 632, 633. ABRIDGMENT, copyright in, 457. whether or not a piracy, 457. ACCESS, of light and air to windows, 352, 353. to the sea-shore or a navigable river, 398. order to permit, 328. ACCEPTANCE, of bill of exchange, injunction against the, 695. ACCIDENT, general doctrine as to, 55, 56. no equity on ground of, where there is negligence, 23, 57. or when a man fails to observe a covenant, 56, 85. timber severed by, 280. , ACCOUNT, general doctrine as to, 57-61. complicated accounts, 68-61 . mutual accounts, 59. stated account, 60-62. settled account, 62. injunctions against actions at law for, 62, 63. pleading and parties, 63. injunctions against proceedings at law against executors after order for, 108, 109. as incident to an injunction to restrain the violation of a common-law right, 228, 284, 472. no account in general unless injunction be competent, 228, 284, 435. exceptions, 284, 285. 43 674 INDEX. ACCOUNT— continued. limited to moneys actually received, and profits actually made, 226, 286. no account, if acts be unattended by profit, 228, 285, 472. limited to profits for six years before bill filed, 228, 286, 329, 436. exception, 329. delay and acquiescence, as a bar to the application, 228, 286, 436. discovery for purposes of, 228, 473, 490. of waste, 284-286. in timber, 278-281. in trespass, 329, 330. in patent cases-, 435-437. in copyright cases, 472, 473. in trade-mark cases, 489, 490. account not usually taken, 228, 436. ACQUIESCENCE, (t-^-^ />^^^ principle of, 41, 201. on what founded, 40, 41. what is necessary to constitute, 42, 202. application of the principle, 17, 40, 201. extent of the principle, 40-42. , cases in which principle does not apply, 42, 43, 202-204. as a bar to an interlocutory injunction, 17, 201, 205, 298, 348, 349, 406, 440, 483, 496. as a bar to relief at the hearing, 205, 226. cases in which the principle applies most strongly, 201, 202, 349. extent of expenditure to a certain degree the measure of, 202. may give a man an equity to restrain another from seeking damages at law, 226, 227. of agent binds the principal, 202. binding on corporation as well as individual, 42, 203. circumstances, &c., excluding, 203, 204, 483. conduct with others may constitute, 203, 496. under order for an injunction, eiFect of, 632. ACTING, not a publication, 184. injunction to restrain a player from, 621, 627. ACTS OF PARLIAMENT, special railway act, 316, 326, 326. construction of, 301-303. rights arising under, are legal rights, 641. ADDITION, copyright in, 469. ADMINISTRATION OF ASSETS. See Decree for Administraiion of INDEX. 675 ADMINISTRATIOlSr ORDER. See Decree for Administration of Assets. injunctions against proceedings at law, after, 108. obtained on motion, 109. ADMESriSTRATOR, restrained from collecting assets, 161, 162. . ADMIRALTY COURT, /^Z^t^^^-^^^r^^^^^^-^-^-^ S 2^ <^ injunctions to restrain proceedings in the, 148-151. AFFIDAVITS, application for injunction must be supported by, 612. contents of, 207, 612, 013, 617. on ex parte application, 614. in support of motion to commit, 639, 640. by whom made, 613. when sworn, 613. title of, 613. form of, 618. must be filed, 614. time of filing, 614, 615. office copies must be in court at time of making the motion, 614. of title, in copyright cases, 439, 440. in patent cases, 404, 405. in cases of waste, 237. of no collusion in interpleader suits, 128, 129, Addenda. as to assets, in suits to restrain proceedings at law after decree for administration, 109, 110. in bills for discovery, 28, 29. hearing the motion on, 617, 618. admission of, after opening the motion, 615, 616. AGENT, lending himself to the perpetration of a fraud restrained, 489. principal bound by acquiescence of, 202. action against, at the suit of principal, restrained on the ground of fraud, 489. restrained from disclosing confidential communications, 177, 178. general doctrine as to dealings between principal and, 44-46. AGREEMENT. See Covenant. construction of, 498, 499. implication of, 600, 501. plan, if referred to, read along with, 601. injunctions against breach of, 492-494. general principles as to specific performance of, 492-494. parties to suit to restrain breach of, 501, 502. conduct of party, who seeks to restrain breach of, must be consistent with equity, 495, 496, 627, 628. 676 INDEX. AGREEMENT— coraiTOMed. acquiescence, 496, 497. delay, 496. not to do a thing enforced by injunction, 503-506. negative quality may be imported into affirmative, 521-523, 526, 527. negative qnality not imported into affirmative, 524-526. containing both negative and affirmative stipulations, 528-530. not to apply to Parliament, 519, 520. enforced by injunction against persons taking with notice, 530, 531. ultra vires on the part of a company, restrained by injunction, 550, 558-561. in part legal, in part illegal, restrained by injunction, 562. in part legal, but illegal in purpose, restrained by injunction, 561, 562. of promoters of companies to take lands after incorporation, 562-564. adoption of, by companies after incorporation, 563, 664. between land-owner and a railway company not affected by Lands Clauses or Railway Clauses Acts, 303. with a land-owner in restriction of compulsory powers, Breynton v. Lon- don and North- Western Railway Co., 10 Beav. 238, 2 Coo. C. C. 108, no aid given to either o the parties to an illegal, 564. instrument supported, which has no effect at law, 539. injunctions pending suit for specific performance of, 535-537. against alienation, 585, 536. against actions at law for deposit, 105, 536. terms on which granted, 537. against ejectment, 9 , 94, 538. injunctions to restrain actions at law, after decree for specific perform- ance of an, 104, 539. injunctions to restrain actions at law, after dismissal of bill for specific performance of an, 539. perpetual injunctions against breach of, 532. mandatory injunctions against breach of, 533-535. void upon ground of public policy, 50, 51. title to moneys arising from illegal agreement enforced in equity, 51, 52. AIR, passage of, to windows, 352, 367, 360. passage of, for trade purposes, 360. right to, 360. right to purity of, rule of law as to the, 360, 861. injunctions to restrain pollution of, 361, 362. various nuisances to, 362. ALIMONY, no injunction at suit of creditor of wife to restrain husband from pay- ing to her, 698. INDEX. 677 ALMANACS, copyright in, 460, 455. piracy of, 455. ALTERATION OF PROPERTY, waste by, 239, 249, 250. AMBASSADOR, no jurisdiction over, who does not submit, 3. injunction to restrain a man from handing over moneys to an, 597. AMEND, leave to, without prejudice to notice of motion, 616. AMENDMENT, effect of, on notice of motion, 616. effect of, on injunction, 634. , ANCIENT LIGHTS. See Lights, Nuisance, Window. APPEAL, injunctions to restrain the violation of a legal right pending, 214, 226. injunctions to stay sale pending, 593. APPEARANCE, service of notice of motions before, 610, 611. service of notice of motion after, 611. injunction ordered on affidavit of service for want of, 621. ARBITRATION. See Award. jurisdiction of court not ousted by agreement to refer dispute to, 143. discovery in aid of, 142. submission to, when revocable, 142. ARITHMETIC BOOKS, copyright in, 450. piracy of, 455. ARTICLES, contributed to periodicals, reviews, &c., copyright in, 459-461. ASSIGNEES IN BANKRUPTCY, restrained by injunction, 584-586. dissolution of injunction, notwithstanding absence of, 631. ASSIGNMENT, t^-J-^^^^^^f^ p^^-^-^i^t.-.-^^^^^t...,.^..,,^^^^^ ^f~/^-2__ of a share in a patent, 423. of copyright, 448, 449. of the right to use a trade-mark, 479. of a negotiable instrument restrained, 595, ASSOCIATIONS, bound by rules, 568. court will not interfere with, unless there be breach of trust, 568. ATTORNEY AND CLIENT. See Solicitor. 678 INDEX. ATTORNEY-GENERAL, must sue, if act complained of affects the public interest, 297, 334, 642, 571. injunctions at. suit of, to restrain trespass, 297. injunctions at suit of, to restrain nuisance, 334, 396. purprestures, 395. a company from going beyond the pur- poses for which it was incorporated, 542. injunctions at suit of, to restrain a corporation or public body from misapplying its funds, 671-573. not a party if act complained of do not affect the public interest, 174. AWARD, jurisdiction of equity over, 140. no injunction to restrain arbitrator from making, 142. injunction to restrain parties from proceeding before arbitrator for an, 142, 143. no injunction when under statute of Will. 3, 140. no injunction if made a rule of court of common law, 141. under Benefit Building Act, 142. injunction to restrain commissioners from enrolling, 697. B. BANK OF ENGLAND. See Transfer of Stock. injunctions at suit of, to restrain a banking company from accepting a bill of exchange, 695. restrained by injunction, 591. restraining order against, 591. BANIOER, bill of interpleader by, 130. BANKRUPT, may move to dissolve, without making assignees parties, 681. injunctions to restrain sale of property of, 585, 686. BANKRUPTCY, injunctions in matters of, 683. of plaintiff does not dissolve an injunction, 633. injunctions against action at law, after filing a trust deed, &o., in, 107. BANKRUPTCY COURT, injunctions in aid of, 583, 684. .injunctions by, 584, 686. injunctions against proceedings in, 153, 685. injunction to stay sale of goods ordered to be sold by the, 586. BANKS OF A RIVER, not to repair, is waste, 246. BARRIERS IN MINES, 391. INDEX. 679 BELL RINGING, injunctions against, 363, 364, 603. BENEFIT BUILDIJyTG SOCIETY, members bound by rules, 668. no interference of equity with, 568. may invest funds in real estate, 669. award, 142. BIBLES, copyright in, 461. BILL OF EXCHANGE, injunctions against negotiation of, 695. injunctions against acceptance of, 596. BILL OF LADING, interpleader by captain against parties claiming, one paramount to and the other under a, 123. BILL OF PEACE, 134-136, Addenda. BISHOP. See Ecclesiastical Persons. may not open mines, 266. injunctions against, 266. restrained fiom presenting, instituting, or collating, 677, 601, 602. BOARDS OF HEALTPI, 826. injunctions against, 326, 348, 393, 394. injunctions at suit of, 347. BOND, given under Lands Clauses Act, 308, 309. given as a reward for exercising influence over another, 49. BOOK. See Copyright. within the meaning of the Copyright Act, 446. of an immoral, indecent, seditious, &c., nature, no copyright in, 451. a separate article for a periodical is not a, 447. of chronology, copyright in, 460, 455. of statistics, copyright in, 460. elementary lessons in science, arithmetic, &c., coypright in, 450. BREACH, of covenant or agreement. See Agreement ; Covenant. of injunction, 637, 638. what constitutes, 641-643. acquiescence in, 644-646. committal for, 638, 639, 645. sequestration for, 645. costs, 645. BREWHOUSE, not necessarily a nuisance, 362. 680 INDEX. BRICKBUENING, injunctions against, 361, 862. BRIDGES, construction of, along or across a railway, 320, 321. temporary, 821. , ■ ^^-^ ^_^„ -^_^_^^^ BROCAGE BONDS, '''^^^^^^;^^^;^3^^^^t^32^i-,-^^^-'^-^ ^'^ '^■ marriage and place; 60. BUILDINGS, waste in, 250-252. equitable waste in, 269. alteration of, with respect to rights of light, 858, 859. right to support for, from adjacent and subjacent soil, 368, 369. ^"^it^^'^^'"^^^^^^'^^^^-^^-^ ^^ ^ ^-^^ ^C ^i'^ rights of, 262. C. CALENDARS, copyright in 450, 456, piracy of, 466. CALLS, no injunction against actions at law for, 547, 666, 567. except an equitable case be shown, 647. CANAL, fouling a, 894, 895. abstraction of water from a, 888. rights, &c., in artificial watercourse attach to a, 387, 888. easements in a, 385. order restraining the keeping a, out of repair, 634. CERTIFICATE OP REGISTRY, injunction to restrain indorsement on, 96. CHAMPERTY, 60. CHANCERY COURT OP LANCASTER, injunctions against proceedings at law after decree for administration of assets by, 109. CHANCERY REGULATION ACT. See Statutes referred to. cases in which act does not apply, 25, 220. CHAPEL, injunction to restrain a man improperly appointed from officiating as minister of a, 173. injunctions to restrain a, from being enjoyed by persons not con- templated by the deed of foundation, 173, 174. CHATTELS, injunctions against selling specific, 698, 594. INDEX. 681 CHILD, general doctrine with respect to dealings between father and, 45-47. injunctions against father with respect to custody of, 698, 699. CHIMNEY, injunctions against obstructing a, 366. CHURCH, 4-i^/*'--'---'-^'-**^ altering the fittings in a, 266. warming a, 399. injunctions to restrain a man, improperly appointed minister, from performing divine service in a, 173. CHURCHYARD, timber in a, 265. nuisance in a, 398. injunctions against waste in a, 266, 267. rights of burial in a, 262. CLAY, waste by digging, 245, 248. estovers of, 247, 248. ^/'right.of copyholder of inheritance by custom to dig. 248. restrained from communicating, or making public papers, docu- ments, &c., of his employer, 177, 178. CLOUD UPON TITLE, injunctions to remove the effect of an instrument, which operates as a, 597. COLLUSION, waste by, 277. between directors of a company and creditor to enforce his debt against a particular shareholder, 547. COLOR OF TITLE, trespass under, 290, 291. COLORABLE IMITATION, of a work protected by copyright, 454-456. of a trade-mark, 483-485. COMMISSION, injunctions to enforce the assignment by an officer in the army of the proceeds of his, 102. COMMISSIONERS, ecclesiastical, 266. drainage, restrained by injunction, 348. of sewers, 347. restrained by injunction, 347. injunctions at suit of, 347. 682 INDEX. COMMISSIONERS — continued. powers, &c., of, 326, 397. of woods and forests, 348. restrained by injunction, 348, 534. COMMIT, motion to, 639. notice of, 639. service of, 639, 640. afBdavits in support of, 639, 640. only made on a seal day, 639. costs of, 646. COMMITTAL, for breach of injunction, 638, 641-643. ordered after notice of order, 638. to warrant, proof of breach must be clear, 640, 641. no, against parties not named in the order, 643. exceptions, 643, 644. COMMON LAW PROCEDURE ACT, 1854, injunctions under, 232. COMPANIES, restrained from doing illegal acts, 641, 646, 647, 563. incorporated by or under statute, exist only for the purposes, for which they are incorporated, 642. agency of, limited to what is defined by the legislature, 642. restrained from exceeding the limits of their authority, 295, 296, 345, 346, 642. at suit of Attorney-General, suing on behalf of public, 297, 334, 642. no substantial damage need be shown, 643. at suit of private person, who can show special damage, 298, 334, 544. restricted at suit of land-owner in the user of land, taken from him, by terms of act of incorporation, 545, 646. member of, may recover and execute judgment against his co- shareholders, 547. restrained, however, from acting inequitably against another shareholder, 647, 548. restrained from doing illegal acts as against individual members, 646, 647. rights in equity inter se of members of, 648. restrained at suit of a shareholder suing on behalf of himself and all other shareholders, 548, 549, 653. from misapplying the corporate funds, 554-557. from entering into improper contracts and engagements, 558-563. INDEX. 683 COMPANIES — continued. ■who may sue, 549-551. pleading, 661. defendants to suit, 551. delay and acquiescence as a bar to the suit, 661-563. costs, 569. may apply corporate funds to a purpose legitimately connected with the objects of the company, 664, 666. not interfered with in matters of internal regulation, 565-567. • unless in exceptional cases, 567, 668. powers of a general meeting of, 668. forfeiture of shares in, 94, 96. COMPENSATION, under Lands Clauses Act, 311, 343, 344. for land taken, 311, 343. for lands injuriously affected, 341, 342. for severance, 311. for minerals, 372, 373. land-owner not bound to prove damage before seeking, 344. need not be tendered before commencing works, 343. ^ iniunqtion to-restrain a.man from seeking, 345< ^ * -i ^ COMPLETE JUSTICE, as understood in equity, 3, 4. COMPOSITION DEED, fraud upon a, 49. CONCEALMENT. See Fraud. in a specification renders a patent void, 419. CONCURRENT JURISDICTION, CONDITION /PRECEDENT, 98. ^ / must be literally performed, 98. no relief in equity except there be fraud, 98. CONDITION SUBSEQUENT, 97. forfeiture for breach of, 97. relief against, 97, 98. CONFIDENCE. See Fiduciary Eelation, Trustees. injunctions against acts in breach of, 177, 183. CONFIDENTIAL COMMUNICATIONS, injunctions against the disclosure of, 177-179. not protected from disclosure, if there be fraud or an illegal purpose, 177-179. U^/^o^-^^'-^i^c^ ' — • ■ - - CONSERVATION, right of, in navigable tidal waters, 397. [INDERS, '^ 684 INDEX. CONSIDERATION, INADEQUACY OF, may be a ground for relief, 47, 48. CONSERVATORS OF THE THAMES, 397. restrained by injunction, 348. CONSTRUCTION, of covenants or agreements, 497-501. of statutes, 301, 302. of specifications,' 427, 428. of works authorized by statute, 320, 341. rule at law as to damage resulting, 341. rule in equity as to damage resulting, 342. must be bond fide, doing as little damage as possible, 343, 344. CONTEMPT, 638. CONTIN(fENT^M^ injunctions at suit of trustees to preserve, 256. CONTINUING INJUNCTIONS, 636. CONTRACT. See Agreement, Covenant. CONVENIENCE AND INCONVENIENCE, balance of, taken into consideration, 209, 210, 294, 340. COPARCENERS, injunctions against waste between, 257. COPYHOLDER. See Lord of a Manor. may restrain waste by copyholder for life, 260. in remainder may have an injunction against copyholder for life, 260. can restrain waste by lessee, 260. can restrain trespass by ord of manor, 260. lord of manor can restrain waste by, 260. interest of, in trees, 242, 243. in mines, gravel, clay, &c., 248. entitled to estovers, 244, 248. • /,^ei,-^A&««.-'-t-e»'/^^'^'^-^^^ COPYRIGHT, /^^-^J^-^-^-^/"''^-^^ in general, 445, 446, 449. in books, 446. subject-matter of, 450, 451. entry in the register book, 447, 448. assignment of, 448, 449. agreement to publish not an, 449. title by devolution, 449. foreigner resident abroad has no, 446, 448. of British author resident abroad, 446. infringement of, 461, 452. extracts and quotations, 453, 454. multiplication of copies, 459. colorable imitations, 454-456. abridgment, 467. INDEX. 685 COPYRIGHT — continued. digest, 467, 458. translation, 458. dramatizing a book is not an, 459. reading or reciting, &e., in public is not an, 459. injunctions against the, 439-445, 464. pleading and affidavits, 439, 440. parties, 440. delay and acquiescence, 440, 441. equitable owner may have, 439. in articles, contributed to periodicals, &c., 459-461. injunctions against infringement of, 460, 461. pleading, 461. in lectures, 190, 461. of the Crown in Bibles, &c., 461. of the universities, &c., 461, 462. in reports of judicial proceedings, 462. dramatic and musical, 462-464. what is a publication, 463. who is an author, 463. assignment of, 463. piracy of, 459, 464. in prints, engravings, and etchings, 464, 471. what is a piracy of, 464r-466. in sculpture, 466. in drawings, paintings, and photographs, 466. in designs, for ornament, 466-468. for utility, 469, 470. international, 470, 471. translations of foreign books, 471. injunctions against infringement of, 439-442. intent not material, if there is infringement, 444. account, as incident to, 472. discovery for purposes of, 473. delivery up of pirated copies, &c., 472, 473. inquiry as to damages, 473. discovery for purposes of, 473. costs, 473. perpetual, 473. CORPORATIONS,.^^i'«-'-'^^-^0-<^»<^-^ under Municipal Corporation Act, 571, 672. 686 INDEX. CORPORATIOIsrS — continued. restrained from misapplying corporate funds, 572-574. delay not material, 574. under statute, must act within the limits of their authority, 572. restrained from misapplying corporate funds, 574. eleemosynary, 675, 576. equity will not interfere with, unless there be a breach of trust, 575, 576. spiritual or ecclesiastical, 676, 577. equity will not interfere with, unless there be breach of trust, 676, 577. or tjiere be a special eqmty in the c^se, 677. • ^-2^ y^ of motion, 214-216. to restrain proceedings at law, 30. after decree for administration, 117, 118. to commit, 645. of issues, 221. of suit, 228, 229, 230. in interpleader suits, 181, 182. in patent cases, 437. in trade-mark cases, 490, 491. security for, 617. COUNSEL, no injunction to restrain employment of, 180. COUNTY COURTS, injunctions to restrain proceedings in the, 153. principles on which granted, 148. COVENANTS. See Agreement, Liquidate 1 Damages, Penalty. construction of, 497-499. implication of, 500, 601, 513, 614. in restraint of trade, 508-518. with a penalty, 514-518. not to apply to Parliament, 619, 620. not to oppose a bill in Parliament, 521. breach of, 504, 505. injunctions against breach of, 492-494, 497. conduct of party applying taken into consideration, 496-497, 527, 629. a man who has been himself guilty of a breach cannot have, 496, 497. acquiescence and delay as a bar to the application, 496, 497. reversioner may sue, 602. parties, 501, 502. INDEX. 687 COVENANTS — continued. rights of other parties taken into consideration, 497. negative, enforced by injunction, .903-506. negative quality imported into affirmative, 521-523. negative quality not imported into affirmative, 524r-526. containing affirmative and negative stipulations, 528, 629. enforcement of, against persons taking with notice, 530-532. injunciions against actions at law upon, 539, 540. forfeiture for. breach of, 85-90. no relief against, except under special circumstances, 86, 91. to insure, relief against forfeiture for breach, 87. mandatory injunctions against breach of, 533-536. perpetual injunctions against breach of, 532, 533. CREDITORS. See Decree for Administration of Assets. injunctions against actions at law by, after decree for administration, 107. _ _ __ transactions in fraud of, 49. J ' / CRIMINAL PROCEEDINGS, no injunction to restrain, 2. CROPS, damage to, 398. CROWN COPYRIGHT, 461. CURTESY, tenant by, may not commit waste, 239, 257. CUSTOM, of London, 367. of the country, 249, 250. of a manor, forfeiture according to, 97. no relief against, 97. D. DAMAGE, irreparable, 199, 200, 225, 350. prospective or threatened, 197, 198, 236, 339. special, 298, 334, 544. temporary, 338. substantial, 238, 300, 301, 544. from repetition may be substantial, 338. to rights in water, 378-380, 382, 393, 394. in the construction of works, rightfully and properly done, 341, 342. wrongfully or improperly done, 841, 342. DAMAGES, courts of equity have no inherent power to give, 221. effect and meaning of Statute 21 & 22 Vict. c. 27, as to, 221, 222, I exercise of jurisdiction as to, is discre*ionary, 222. 688 INDEX. DAMAGES — continued. given, if injury is material, 223. cases in which statute applies, 223. not limited to cases where an action is maintainable, 223. meaning of, under the statute, 223. given, though injunction not competent, 222, 436. inquiry as to, directed in addition to account, 223, 436. discovery for purposes of inquiry as to, 436, 473, 490. principle as to assessing, 224, 490. mode of assessing, 224. may be had under prayer for general relief, 223. undertaking as to, 212, 621, 622. liquidated, 514-519. no injunction against doing an act, permitted to be done on pay- ment of, 514, 516, 617, 519. inadequacy of the remedy at law by, as the ground for an injunction to restrain the violation of a common-law right, 199, 200, 225, 352, 400. DATUM LINE, 317, 318. DEAN AND CHAPTER. See Ecclesiastical Persons. DECREE, injunctions against proceedings at law after, 104, 539. ' unless decree has been completely carried out, and the cause is out of court, 105. not permitted to work in ustice to innocent parties, 7, 107. DECREE FOR ADMINISTRATION OF ASSETS, injunctions against creditors proceeding at law after, 107, 108. not granted before, 108. or if creditor has recovered judgment before, 110-113. granted on motion in the suit, 109. on application of executor, 109. heir, another creditor, &c., 109. affidavit as to assets, 109. not granted, if executor has made himself personally liable, &c., 113-116. costs of, and proceedings at law, 117. executor may not institute proceedings at law against creditors after, 117. injunctions against proceedings at law against the heir after, 116. administration order, i&c, has effect of, 108, 109. by Chancery Court of Lancaster, injunction by Lord Justices against proceedings at law after, 1U9. DEER, destroying or reclaiming, 246 property in reclaimed, 284. INDEX. 689 DELAY. See Accpiiescmce. may disentitle a man to an interlocutory injunction, 205, 206, 298, 349, 406, 551. in applying to court to restrain proceedings at law, 30, 94. in cases of waste, not so material as in other cases, 238. not material, so long as things remain in statu quo, 206, 574. in coming for an account, 228, 286. DELIVERY, of deeds, goods, &c., to another, injunctions against the, 596. up of possession, injunctions to stay, 21. DEMURRER, JL- /.^C^^^^^^^^-^^'^^"^"^ injunction not granted pending, 619. exception in special cases, 213, 619. and motion for injunction argued together, 619. injunction not necessarily granted on overruling, 213, 619. injunction put an end to by allowance of, 634. A-rr^. jfixcept, allowance be on, technical grounds, 634. ^ . , / ■ ~^ y ^ >^ DESIGNS, V^ /O^- -y^ /^ ^^ / copyright in, 466-470. DEVIATION, limits of, under Railways Clauses Act, 317-320. land necessary for the proper purposes of the company may be taken, though beyond the, 319. land may not be taken, except for the proper purposes of the act, although within, 319. injunction to restrain a railway company from exercising their powers of, 318, 320. DICTIONARIES, copyright in, 450. piracy of, 455. DILAPIDATIONS, 252. DIRECTORY, copyright in a, 450. piracy of, 456. DISCLAIMER, in reference to the patent law, 425-427. DISCLOSURE, of con&dential communications, papers, &c., restrained, 177, 178. no injunction, if there be fraud, &c., 177-179. of trade secrets not restrained, 181. unless there be breach of confidence, 181. DISCOVERY, injunctions to restrain proceedings at law until, 27, 28. pleading and affidavits, 28-30. 44 690 INDEX, mSCOYEKY — continued. interrogatories, 29. not dissolved by putting in a sufficient answer, 633. costs, 30. injunctions to restrain proceedings in the Probate Court until, 162. fiOT nu£gose3^o|account or inquiry as to damages, 228, 436, 473, 490. DISCKETION OF THE COmiT, 4, 6. exercised according to fixed and settled rules. 4, 5. principles on which exercised, 6, 7. DISMISSAL or BILL, injunction goes of course on, 635. new bill may be filed, notwithstanding, 635. DISSOLVING INJUNCTION, 626-630. DIVIDENDS, improper payment of, by a company, restrained, 655. no injunction against payment of, if capable of being sanctioned by a general meeting of the company, 666. DIVINE SERVICE, injunction to restrain a minister or incumbent of a chapel improperly appointed from performing, 173. DIVORCE COURT, injunctions to restrain proceedings in the, 151, 506. DOCUMENTS, injunctions to restrain the parting with, 595. injunctions to restrain a man from preventing another from having access to, 696. DOWRESS, punishable for waste at common law, 239, 267. rights o^ in timber, 278. ■ ■ a 4' /-x^ DRAIN, ^;^V-^^^ -- — ^^.j^V-:^^ J ef^ right of, 364, 366. interference with, a nuisance, 364, 366. DRAINAGE, in general, 386, 387, 896. commissioners restrained by injunction, 348. DRAMATIC PIECES, copyright in, 462. stage copyright in, 463. assignment of, 463. piracy of, 464. who entitled to, 464, 471. injunctions against performance of, 464. DRAWINGS, copyright in, 466. • INDEX. 691 DRIP, right of, 364, 365. DROWNED MINE, no right to support from a, 367, 368. DRUNKENNESS, relief against advantage taken of, 44. E. EASEMENT, right to, passes by implication of grant upon severance, 355, 364, 392. no implication of reservation of right to, on severance, 365, 356, 364, 366, 392, 393. extinguishment and merger of, 367, 368, 384. abandonment of, 358, 359, 386. title to, by prescription, 356, 357, 882, 883. right limited by actual enjoyment, 869, 384, 385. alteration in mode of user, 386. owner of an, not entitled to notice under Lands Clauses Act, 306. ECCLESIASTICAL BENEFICE, ' presentation to, restrained, 677, 601, 602. ECCLESIASTICAL COMMISSIONERS, 266. ECCLESIASTICAL COURTS, injunctions in aid of the, 267, 268. injunctions to stay proceedings in the, 161, 152. principles on which the court interferes, 148. ECCLESIASTICAL PERSONS, their powers of alienation at common law, 264. their rights of waste at common law, 265. restraining statutes relating to, 264, 677. leases by, 264. mining leases by, 266. may cut timber for repairs, 265. or for providing other timber more suitable for repairs, 265. but not for general expense of repairs, 266, 266. may work open mines, 266. may not open new mines, 266. i injunctions against, 266. / waste by, 266-267. ' account of, 285. application of produce of waste by, 267. timber on estates of, ordered to be cut, and mines on estates of, ordered to be opened, 267. application of produce, 267. EJECTMENT. See Forfeiture. injunctions to restrain, 24, 25, 84, 91, 92, 94, 538, 639.; perpetual injunctions against, 133, 184. 692 INDEX. ELECTION, between action and suit, 103. injunctions to stay proceedings at law after, to sue in equity, 103-105. ELECTRIC TELEGRAPH COMPANY, injunctions against, 335. ENDORSEMENT, of securities, injunctions against, 595. ENGRAVINGS, copyright in, 464-466. piracy of, 464-466. no copyright in immoral, &c., 466. printed abroad, copyright in, 465, 466, 471. ENTRY, on land, 326. under the Lands Clauses Act, 307-316. clauses prohibiting, without consent of land-owner, 325. under Public Health Act, 326. under Metropolis Local Management Act, 326. under Thames Embankment Act, 327. in the register book, 447. EQUITABLE ASSIGNMENT, what constitutes an, 99, 100. notice of the assignment necessary as against purchasers for value, 100, 101. future property may be the subject of, 100. cases in which there can be no valid, 101, 102. by an officer in the army of the proceeds of his commission, 102. injunctions to enforce, 99, 100. EQUITABLE GROUNDS FOR RESTRAINING PROCEEDINGS AT LAW, accident, 55. See Accident. lost bond or other security, 56. as distinguished from negligence, 22, 23, 67. no equity in favor of lessee upon destruction of house by fire, 56, 67. or of a man who having entered into a covenant fails to per- form it, ih. 86. account, 67-63. See Account. as distinguished from set-off, 59. complicated accounts, 68-61. mutual accounts, 69. stated or settled impeached for fraud, 61, 62. in case of fiduciary relationship, 67, 58. injunctions against actions for account, 62, 63. fraud, 31-33. See Fraud. INDEX. 693 EQUITABLE GROUNDS FOR RESTRAINING PROCEEDINGS AT LAW — continued. misrepresentation, 33-39. concealment, 36-39. undue influence, 43-47. weakness of intellect, 43, 44. drunkenness, 44. ^ fiduciary relationship, 44^-46. duress, 47. upon third parties, 48-60. injunction to restrain action at law on ground of, although there is a defence at law, 32, 33. mistake, 52-55. See Mistake. in law, 52, 53. of fact, 63. as distinguished from negligence, 22, 54. discovery, 27-29. See Discovery. equitable set-off, 63-68. See Equitable Set-Off. marshalling securities, 69. creditor restrained, 69. relief against penalties and forfeitures. See Forfeiture, Penalty. given where penalty is to secure payment of money, 79. or some collateral act, 80, 81. not given where liquidated damages, 81. non-payment of rent, 83. lessee may by conduct lose his equity, 84, 91-93. no relief against forfeiture for breach of covenant, 85-90. except in special cases, 91-94. course of court in restraining proceedings in ejectment and reliev- ing against forfeiture, 94. equitable assignment, 99-102. See Equitable Assignment. sureties, see Surely, 70. creditor restrained proceeding, against, 70. decree for administration of assets. injunctions against proceedings at law after, 107, 116. not granted before, 108. or if creditor has recovered judgment before, 110-113. granted on motion in the suit, 109. on application of executor, heir, another creditor, &c., 109. not granted, if executor has made himself personally liable, 113-116. granted generally only upon affidavit as to assets, 109. costs of, and proceedings at law, 117. executor may not institute proceedings at law after, 117. administration order, &c., has effect of, 108, 109. possession of a cause by the court, 694 INDEX. EQUITABLE GROUNDS FOR RESTRAINING PROCEEDINGS AT LAW — continued. injunctions against proceedings at law after, 103-106. granted on motion in the suit, 105. not granted if decree has been carried out and the cause is out of court, 105. or if party in possession has got possession by tortious means, 105. no injunction against mortgagee pursuing all his remedies concur- rently, 105, 106, 191. EQUITABLE JURISDICTION. See Jurisdiction, Jurisdiction of the Court of Chancery, Protection of Legal Bights to Property Pending the Trial of the Right. in aid of common-law rights, 196, &o. in cases where no action at law lies, 5, 198, 235, 236. want of legal remedy does not create an equitable right, 5. EQUITABLE PLEA, under Common Law Procedure Act, 25. in what cases entertained at law, 27. equitable defence need not be pleaded at law, 25, 26. if equitable defence has been pleaded, &c., at law, no relief can be had in equity, 26, 27. EQUITABLE SET-OFF, general doctrine as to, 63, 64. one of the demands must involve an equitable element, 64. debts must be due in the same right, 65. must be ascertained or liquidated, 65, 66. except there be a clear natural connection between the two claims, 67, 68. may arise from agreement, 67. agreement may be implied, 6^. assignees of choses in action take subject to, 68. EQUITABLE WASTE, 267, 268. what constitutes, 268, 270. pulling down buildings, 269. cutting ornamental timber, 270-274. ^ young trees and saplings, 274. underwood of insufficient growth or at unseasonable times, 275. wanton destruction or spoliation, 268, 275. who are within the principle, tenant for life without impeachment of waste, 268. although he be the settlor, 268. tenant for life with executory devise over, 259. tenant for life after possibility of issue extinct, 259. tenant by lease for lives renewable for ever, 260. INDEX, 695 EQUITABLE WASTE — continued. heir taking by resulting trust, 260. account of, 285, 286. ESTATE, a timber, 241, 276, 277. cim^%'^fV}^^ °f '^n- 592, 593. ESTOVERS, 243, 244. of trees, 243, 244. of minerals, clay, &c., 247. of turfs, 247. on ecclesiastical estates, 265. copyholder entitled to, 244, 248. ETCHINGS, copyright in, 464. EVIDENCE. See Affidavits. on a motion, 612, 615, 616, 618. new, after opening motion, 616, 617. case made out by the, must correspond with allegations of bill, 618, 619, 626, 627. on motion to dissolve, 626-628. EXECUTION, after judgment, injunctions to stay, 21, 23, 24. EXECUTOR, injunction to restrain getting in assets, 161, 162. injunction to restrain parting witlji assets, 162. of debtor in possession, waste by, 263. injunctions to stay proceedings at law against, after order for account under 13 & 14 Vict. c. 35, s. 19, 108, 109. injunctions to stay proceedings at law against, after decree for admin- istration of assets, 107. may not after decree for administration of assets institute proceedings at law against creditors, 117. EXECUTORY DEVISE. See Tenant in Fee. EX-PABTE INJUNCTIONS, 608, 610. affidavits on application for, 614, 615. motion to dissolve, 628, 629. dissolved with costs if there has been misstatement, 628. EXPECTANT HEIR, sale by, of his expectancy, 48. F. FAIR, bill of peace in respect of the profits of a, 136. BAMILY ARRANGEMENT, 46. 696 INDEX. FAKMING, fixtures set up for, 253. according to the custom of the country, 249, 250. FATHER. See Parent and Child. -O" restrained froBiinapaeement.of childreni598, 699/y ^ -, ^^ nuisance to a, 398. bill of peace in respect of, 136. FIDUCIARY RELATION, duties of parties who stand in a, to others, 44, 45. doctrine as to transactions between persons standing in positions of, to each other, 45, 46. FINE, bin to settle general, by copyholders, 136, PIKE, accident by, 56, 67, 251, 252. FISHERY, nuisance to a, 394. shutting out the tide from a, 396. bill of peace in respect of a, 136. FISH-POND, waste in a, 245. FITTINGS, of a church, altering the, 266. FIKTURES, 252. removal of, 252-255. set up in relation to trade, 252, 253. for farming, 253. by a nurseryman, 253. set up for ornament, 254. right to, as between landlord and tenant, 252. right to, as between heir and executor, 255. right to, as between tenant for life and remainder-man, 255. right to, between successive incumbents of a benefice, 255. FLOOD WATER, 391. FORCIBLE ENTRY, doctrine on the statutes of, 603. FOREIGN COURTS, injunctions to restrain proceedings in, 154^160. principles on which court interferes, 154, 169. after decree for administration, 164, 165. granted on motion, 160. after court is in possession of a cause, 155. INDEX. " 69T FOREIGN COURTS — continued. when suit abroad is not so well suited to the purposes of justice, as the suit here, 166, 157. injunctions against proceedings in, in respect of an English contract, 169. proceedings in, allowed to go on, 168, 169. FOREIGN JUDGMENTS, in rem, 137. in personam, 137. in certain cases disregarded, 137, 188. examination of, 138. injunctions to restrain proceedings at law on, 137, 139. injunctions in respect of, or notwithstanding, 138. FOREIGN LAWS. See Laws of a Foreign Country. FOREIGN LEGISLATURE, no injunction to restrain parties from applying to a, 9, 657. unless in very exceptional cases, 9, 657. injunctions to restrain application of funds of a company in defraying the expenses of an application to a, 666. FORFEITURE. See Penalty. relief against, for non-payment of rent, 83, 84. practice before Geo. 2, c. 28, 83. rent allowed under that act to be paid into court within six months, 83. compensation not a ground for relief against, except in case of a single money payment, 85. no relief against, for breach of covenants, 85, 86. to repair, 86. to insure, except in certain cases, 87, 88. not to assign, 89. not to trade without license, &c., 90. in a building lease, 88. in a farming lease, 89. for perpetual renewal, 90. except in special cases, 85, 91-94. course of court where there is a breach of other covenants than that for non-payment of rent, 84. course of court in restraining proceedings in ejectment and relieving against forfeiture, 94. course of court where relief is sought by a person not in possession, no legal relation however existing between the parties, 91. of shares in public companies, &c., 94, 546. for breach of condition, &c., no relief against, 97. imposed by act of Parliament, no relief against, 97. of legal title to a ship, relief against, 96. no equity to prevent a, 98. 698 INDEX. FORFEITURE — continued. must be waived by persons coming to equity for relief, 237, 442. for waste, 237. according to customs of manors, 97. no relief against, 97. FOULING, a natural stream, 382. injunctions against, 393, 394. an artificial watercourse, 388, 394, 395. a navigable tidal river, 396. within the Prescription Act, 384, 388. -^ FRAUD, O.^-^^^,^^ ^^^^4,..--^ 3/ general doctrine as to, 31-33, 40. misrepresentation, 33. what constitutes, 33-35. made innocently, 34, 35. must be material, 86. intent of the, 37. must be relied on, 38. must be in respect of a fact, 38. proof of knowledge will exclude, 39. mere notice not sufficient to exclude, 39. application in equity of doctrine with respect to, 40, 41. pleading, 551. concealment, 36, 45, 49. must be material, 36. equitable doctrine of acquiescence founded on, 41. colorable imitation, 483-486. part performance founded on, 43. inequality of footing between parties to a transaction, 43. weakness of mind, body, «&c., 43. drunkenness, &c., 44. fiduciary relationship, 44-46 . trustee and cestui que trust, 45. solicitor and client, 45. principal and agent, 46. guardian and ward, 45. parent and child, 45. other cases, 46. undue influence, 47. upon third parties, 48-50. inadequacy of consideration not of itself evidence of, 47. particeps criminis may be relieved, 51. all parties who lend themselves to perpetration of a, may be re- strained by injunction, 489. FUNCTIONARIES. See Public Functionaries. INDEX. 699 G. GAMING TRANSACTIONS, 60. GARDENS, waste in, 244. GAS COMPANY, restrained from committing nuisance, 361, 362. GENERAL MEETING, of a company, limits of powers of a, 668. GIVING JUDGMENT, 18, 19. GENERAL RELIEF, injunction not obtained under prayer for, 607. damages may be had under prayer for, 223. GLEBE, ^ — '^ ^ ^—/// / /^ "^ timber on, 266, 267. -^^^^-^"^ ^^-Tt-^IX ^ / ^/ GOVERNMENT, no interference with the public duties of a department of the, 3, 699. no interference with the sovereign acts of a foreign, 3. department of, restrained from doing a ministerial act, 699. , GRAMMARS, copyright in, 450, 465. piracy of, 465. GRANT, construction of a, 365, 392. of lands and mines, 246. GRAVEL, waste by digging, 245-247. estovers in, 247, 248. right of copyholder of inheritance by custom to dig, 248. GUARDIAN AND WARD. See /m/an<. general doctrine with respect to dealings between, 45, 46. injunction to restrain intercourse between, 598. injunction to restrain guardian from permitting marriage of ward, 598. no interference with discretion of foreign guardian, 599. GUIDE BOOK, copyright in a, 450. piracy of, 465. H. HARBORS, , HEALTH/' ^ boards of, restrained by injunction, 348, 394. HEIR, by resulting trust within principle of equitable waste, 260. 700 INDEX. HEIR — continued. . of debtor in possession, waste by, 263. proceedings against, after decree for administration, restrained, 116. HIGHWAY, nuisance to a, 398. trespass on a, 298, 320, 321. HOSPITAL, not necessarily a nuisance, 362. HOUSE, meaning of, within Lands Clauses Act, 313. a man not bound under Lands Clauses Act to sell or convey part of a, 312. HOUSES, waste in, 250-252. HOUSE OF LORDS, copyright in trials before, 462. no injunction pending appeal to, if bill is absolutely dismissed, 214. HUSBAND AND WIPE, injunctions between, 597. against preventing wife seeiMg a legal adviser, 597. against disposing of her separate estate, 697. against assigning, &c., her equitable interest, 597. j ?y PEACHMENT OF WASTE. See Without Impeachment of Waste. IMPROVEMENT, in manufacture, patent for, 411, 412. INCUMBENT, of a parish, restrained from performing divine service, 173. INADEQUACY OF CONSIDERATION, as a ground for relief in equity, 47, 48. INDUCTION, restrained by injunction, 601, 602. INFANT, en ventre sa mire, injunction on behalf of, 236. tenant in tail in possession, waste by guardian of, 258. tenant in tail in possession or in fee, order to cut timber on estate of, 279. application of produce, 279. restrained from marrying, 598. INFORMATION, 607. to restrain trespass, 297, 395. to restrain nuisance, 334, 335, 395, 398. to restrain companies from exceeding their powers, 542, 548. INDEX. 701 INFORMATION — continued. to restrain corporations from misapplying the corporate funds, 671-573. name of person not to be used as relator in an, without written author- ity, 609. INFRINGEMENT, of copyright, 451. in books, 451-459. in dramatic pieces and musical compositions, 459, 463, 464. in prints, &c., 464-466. in designs, 468, 469. of patents, 429-432. functions of judge and jury on questions as to the, 433. intention immaterial, if there has been an, 432, 444. INJUNCTION. S&e Motion, Writ of Injunction. meaning of interlocutory, 11, 12, 196. general principles on which granted, 12, 14, 19G, 208-210. not in general granted, except on bill filed, 605. exceptions, 605-607. should be specifically prayed by bill, 607. not in general granted, except against a party to the bill, 605-607. exceptions, 605-607, 624. generally obtained on motion, 607, 608. may be obtained at any stage of the proceedings, 608. may be obtained during vacation, 608. obtained on ex parte application, 608, 610. not granted, pending demuritr, plea, &c., 619. prayed must be consistent with case made out, 619. ordered on aflSdavit of service, if defendant does not appear, 621. terms of order for, 624. order for, should be specific and should declare the rights, 623. waiver of irregular, 632. acquiescence under order for, 632. service of notice of order for, 625, 638. operates from date of order, 625, 637, 638. effect of amendment on, 634. goes of course on dismissal of bill, 635. dissolution of, 626. discharge of order for, 631. not dissolved by abatement of suit, 632. until answer, not dissolved by putting in a sufficient answer, 633. continuing, at the hearing, 637. perpetual, 11, 225. not granted before the hearing, 227. granted though not prayed by the bill, 607, 637. is in effect a decree, 133, 637. mandatory, 230. 702 INDEX. INJUNCTION — continued. not in general granted on motion, 232. to cause possession to be delivered up to the sequestrator, 147, 599. must be implicitly observed, so long as it exists, 637. breach of, 637, 640, 641. consequences of, 638.' INJUNCTIONS TO RESTRAIN PROCEEDINGS AT LAW, differ from prohibition, 14, 15. principles on which granted, 13-15. granted, if an equitable case be made out, 13-15, 25, 33. not granted, if there is a full and complete remedy at law, 15, 16. pleading in the bill, 16, 17 ; delay, 18. conduct of plaintiff in equity must be fair and honest, 17, 18. terms on which granted, 18. giving judgment, 18. payment of moneys into court, 19, 20. not ordered if equitable case be a strong one, 20. granted at any stage of the action, 21. after judgment, 21-24. until discovery, 27. See Discovery. costs of motion, 30. INJUNCTIONS TO RESTRAIN PROCEEDINGS IN OTHER COURTS, 148. admiralty court, 149-151. ecclesiastical court, 151. probate court, 152. Lord Mayor's Court, 152. county courts, 153. bankruptcy court, 163. foreign courts, 154-160. special tribunals, 153. brin cLples on wluch the court interferes, 148. ^/^jCc INSPECTION, 327, 328, 433^ y^ ^J^ of mines, 327, 828. of patents, 433, 434. order made on interlocutory application, 228, 434. order to break soil for purpose of, not made on interlocutory applica- tion, 328. practice and affidavits, 328, 434. effect of laches, 435. courts of common law may order, 329, 400, 435. INTERIM ORDER, 212, 619. convenience of proceeding by, 620. practice, 620. INTERNATIONAL COPYRIGHT, 470-472. INDEX. 703 INTERPLEADER, definition of, 118, 119. principle of interpleading bill, 119, 120. will lie although both claims are legal, 119. not encouraged if unnecessary, 125. claims must be conflicting, 121. tenant and landlord, 122. principal and agent, 122. subject of claims must be the same, 121. plaintiff must be under no liability to either claimant, 123. must claim no interest in the property, 124. will lie, notwithstanding judgment recovered at law, 125, 126. or offer of indemnity, 125. will not lie, if possession has been parted with, 129. will lie to protect sheriff, 124. Crown may be a party, 127. pleading, 126, 127 ; delay, 126. affidavitof no collusion, 128, 129. affidavit of merits not necessary, 128, 612. injunction to restrain actions at law is of course, 127, 128. granted only on payment of moneys into court, 127. motion to dissolve, 130. proceedings at hearing, 131. parties out of jurisdiction not appearing, 130. inquiry as to title, 131. decision on the question at the hearing, 131. costs, 131, 132. INTERRUPTION, under the Prescription Act, 356, 357. IRREPARABLE DAMAGE, meaning of, 199, 200, 338. on application for perpetual injunction, 225, 226, 393. IRRIGATION, water taken for purposes of, 880. ISSUES. See Trial of Issues. power to direct, to law, 220. costs of, 221. JOINT TENANTS, remedies for waste between, 257, 258. JOINTRESS, may not commit waste, 257. JUDGMENT, effect and operation of a, 678-580. 704 INDEX. JUDGMENT — continued. right under a, is a legal right, 578. of a foreign court, 137, 138. injunctions after verdict to stay, 21-23. JUDGMENT CREDITOR, injunctions in aid of, 678-580. must sue out elegit, 579. pleading, 580. rights of, as against debenture holders, 580, 581. injunction against, 680. rights of, as against the sequestrator of a benefice, 581, 682. JUNCTIONS, between railway companies, questions relating to, 323, 324. JURISDICTION, meaning of " concurrent," 3. principles on which the court of chancery acts in determining whether it shall entertain, 3. the court never abandons any part of its jurisdiction, 6, 6. not entertained by the court, if there is an adequate remedy at law, 3. exercise of the, is discretionary, 6, 7. court will never in the exercise of its, allow itself to be made an instru- ment of injustice, 7, 107. JURISDICTION OF THE COURT OF CHANCERY. See Jurisdic- tion. either remedial or preventive, 9, 10. operates upon persons, 8, 9. division of the, 7, 8. property is the subject-matter of the, 1. no, in criminal, political, &c., matters, 1, 2, 4, 6. JUSTICES OF THE PEACE, restrained by injunction, 347. L. LABEL. See Trade-Mark. LACHES. See Acquiescence, Delay. ff ^ ^ ^ LANDLORD AND TENANT, 263 .'^^''^^^'-^"^ iLe^-^^s^ ^^/7 tenant cannot have interpleader against landlord, 122. exception in special cases, 122, 123. tenant restrained according to terms of his covenant, 263, 264, 603- 606. ri/~-^. tenant restrained from committing waste, 263, 264. underlessee restrained from committing waste, 264. lessee losing the right to light, 367. effect of an alteration in the state of the property, 349, 350, 496. tenant restrained from setting up terms, 587, INDEX. 706 LAND-OWNER, agreement between a, and the promoters of public works, 562-564. rights of a, against the promoters of public works, 298-300. rights of a, against persons who have taken his land under compulsory powers, 546, 546. not compellable to sell in certain cases a partial interest, 312, 313. clauses prohibiting a company from taking land without consent of, 325. LANDS, injuriously affected by the execution of public works, 341, 342. taken compulsorily, to what uses they may be applied, 325, 545, 546. LANDS CLAUSES CONSOLIDATION ACT, 803-316. See Statutes referred to. LAW REPORTS, copyright in, 450. LAWS OF A FOREIGN COUNTRY, _ ^x/ interference in aid of the, 2, x__-y^^^" ^. ^ ^ J^ LEASES, -"^ of ecclesiastical corporations, 264, 266. covenants in, enforced by injunction, 503-505. underlessee restrained from committing waste, 264. ultra vires on the part of a railway company, 560. LEASES AND SALES, of settled Estates Act, as regards timber, 279. LEAVE AND LICENSE, doctrine of, at law, 42. as distinguished from equitable doctrine of acquiescence, 42. LECTURES, right of property in, at common law, 189. statutory right in, 190. injunction against the publication of, 189, 190. LESSEE. See Landlord and Tenant. LETTERS, copyright in published, 460. right of property in unpublished, 186, 187. qualification of the, 188. injunction against the publication of, 187, 188. delay may be a bar to the application, 189. receiver has no right to an, 189. injunctions against opening, 603. no injunction to restrain Postmalster-General from delivering, 603. LIBEL, no injunction to restrain the publication of, 2, 487, 488. 706 moEX. LICENSE, to exercise a right over the land of another may be at any time counT termanded at law by the owner of the soil, 42. not so in equity, if there has been acquiescence or encouragement to spend moneys, 42. to use a patent, 424. to publish a book is not an assignment, 449. LICENSEE, right of, to sue, 337, 878. of a patent, 424, 425. LIGHT. See Window. right to, by agreement or grant, 354. implication of grant of, upon severance of a tenement, 355. no implication of reservation of right upon severance, 355. exception, 356. right to, under the Prescription Act, 356, 357. right is absolute and indefeasible, 353, 355, 356. extinguishment of right — merger, 357. abandonment of right to, 358. right to, cannot be extended on rebuilding, 359. injunctions to restrain the obstruction of, 352. principles on which granted, 362-364. reference to Chambers as to erection of buildings, 369. LIMITATIONS, STATUTE OF, in reference to account in general, 228, 286, 329, 436. in reference to account in waste, 286, Addenda. in reference to subsidence of soil, 367. LIQUIDATED DAMAGES, 81, 614-519. as distinguished from a penalty, 615-618. no injunction against doing an adt permitted to be done, on payment of, 514, 619. LITHOGRAPHS, copyright in, 464. LITIGATION, protection of property during, 196-216. See Protection of Legal Bights pending the Trial of the Eight. LOCAL GOVERNMENT ACT, persons acting under, restrained by injunction, 848. LORD OF A MANOR, property of, in trees, 242. can have an injunction to stay waste by copyholder, 260, 292. may not out timber on copyhold tenement, 243. injunction to stay trespass by 260, 292. illegal seizure of copyhold by, 97. bill of peace at suit of, against tenants for encroachment, 135. INDEX. 707 LUNATIC, contracts of, generally invalid, 44. timber cut on estate of a, 281, 282. M. MAGAZINES, copyright in articles contributed to, 459-461. MANDATORY INJUNCTIONS, 230. principles on wliicli granted, 231. against trespass, 330, 331. against nuisance, 366, 394. against breach of covenant or agreement, 533-535. pleading, 232; delay, 232. need not be applied for before the hearing, 232. MANOR. See Lord of a Manor. MANSION HOUSE, pulling down, 260, 269. MANUFACTORY, meaning of, in Lands Clauses Act, 313, 314. MANUFACTURE, within the meaning of the patent law, 409, 410. MANUSCRIPTS, right of property in, 182, 183. passes with transfer of subject, 184. to personal representatives of author, 185, 186. of an irreligious, seditious, or libellous character, 186. injunctions to restrain the publication of, 183, 184. what amounts to publication of, 184. purchaser of, may alter as he thinks fit, 186. MAPS, copyright in, 460, 455. piracy of, 465. MARITAL RIGHTS, fraud upon the, relief against, 49. MARKET, nuisance to a, 398. MARRIAGE, of infant, restrained by injunction, 698. MARRIAGE ARTICLES, fraud upon, relieved against, 49. MARRIAGE BROKAGE BONDS, 50. MARRY, bonds to marry, 49. 708 INDEX. MAESHALLING SECURITIES, 69, 70. MAYOR'S COURT, injunctions to restrain proceedings in the, 152. principles on which court interferes, 148. MEADOW, breaking up a, 249. MELIORATING WASTE, 239, 249, 251, 260. MERCHANT SHIPPING ACT, injunctions under, 150, 151. METROPOLITAN BOARD OF WORKS, 327, 897. restrained by injunction, 348. may not erect works in the bed of the Thames, 397. MILL RACE, nuisance to a, 395. MINERALS. See Mines, Mortgagee, Mortgagor, Ecclesiastical Persons. property in, 245, 246. wrongfully severed, 283. reservation of, 247, 373, 374. meaning of word, in a deed, 247. deposited by stream, 247. estovers of, 247. power of tenant for life to alienate, 248. property of copyholder in, 248. , MINES, tenant for life may work open, 245. may sink now shafts to work open, 246. may not open new, 246. interest of copyholder for life or years in, 248. right of copyholder of inheritance by custom in, 248. right of customary tenant by custom in, 248. as distinguished from quarries, 247. grant of, 246. on estates of ecclesiastical persons, 266, 267. account of waste in, 286. drowned mine, 367. trespass on, 287, 290, 291, 32^ working, out of bounds, 287, 290, 291. account of trespass on, 329, 330. working, so as to let down surface, 366, 369-374, drainage of, 890, 391. barriers in, 391. MINISTER, of a Qhapel, injunction to restrain a man improperly appointed from acting asjastor, 17^.^ ,_^ yW--^^^^^-*^^ ^^^^^^^-^ y INDEX. 709 MINISTER — continued. of a chapel, improperly dismissed, injunction from hindering in the dis- charge of his office, 173. injunction to restrain a, from preaching, 173. MISAPPLICATION, of corporate or other funds, restrained by injunction, 548, 554, 572, 573. MISREPRESENTATION. See Fraud. MISTAKE, in law, 52, Addenda. when relieved against, 62. in fact, 53. when relieved against, 53, 54. in pleading or conduct of a cause, &o., 22, 64. rectification of instrument on ground of, 55. in books of reference of a railway company, 305. MONEYS, injunctions to restrain the receipt, payment, &c., of, 595-597. injunctions to restrain a man from applying for, 696. or executing a power of attorney enabling another to receive, 596. payment of, into court, on obtaining an injunction, 19, 20, 212, 622. MORTGAGEE, may in general pursue all his remedies, concurrently, 106, 106, 191. may, on a proper case being made out, be restrained from pursuing all his remedies concurrently, 191, 192. restrained from suing mortgagor on his covenant to pay, 192. restrained from exercising power of sale, 193. from parting with surplus moneys, 193, 261. from presenting to a benefice, 194. from dealing with a ship in derogation of a charter-party, 194, 532.1 ■ may not commit waste, if security be sufficient, 261. may commit waste, if security be not sufficient, 261. of burial-ground may not commit waste, 262. committing waste, pending redemption suit, 261. injunctions at suit of equitable, 194, 195, 261. interest of, in lands taken under Lands Clauses Act, 314. MORTGAGOR IN POSSESSION, may not commit waste, if security be insufficient, 262. pleading on application for injunction, 262. may not commit waste if bankrupt, 262. MOTION, injunctions obtained on, 607, 608. form of notice of, 611. service of notice of, 609-611. time for making, 612? 710 INDEX. MOTION — continued. saving, 620, 621. hearing, on affidavits, 617, 618. evidence on the, 615, 616, 618. declaration of the rights of parties on the, 623, 624. for injunction turned into motion for decree, 52E. to advance the cause, 623. to dissolve, 626, 627. ex parte injunctions, 628, 629. injunctions until discovery, 629, 630. who should move, 630, 631. in interpleader suits, 130. effect of delay, 632. to discharge an irregular order, 631, 632. for a new trial, 218-220, Addenda. to commit for breach of injunction, 639. notice of, 639. form of, 639. MOTIONS, order of taking the, 616. MOTIVES, of instituting a suit sometimes regarded, 207, 335, 336, 549. MULTIPLICITY OF SUITS, , bill to restrain, 134-136. MUSICAL COMPOSITION, copyright in, 462, 464. what constitutes piracy of, 459. N. NAVIGABLE TIDAL RIVER, rights of Crown to soil of, 395, 397. purpresture, 395. injunction to restrain, 395. right of conservation, 397. nuisance to public right of navigation, 396. injunctions against, 396. fouling a, 396. private rights, of fishing in a, 136, 396. injunctions to protect, 136, 396. access to, injunctions against obstructing, 398. NAVIGATION, ^NEGOTIATION OF SECURITIES, ^^^—^ ^ injunctions against the, 695. INDEX. 711 NEXT FRIEND, name of person not to be used without authority, 609. NOISE AND NOISY TRADES, actions at law for, 363. injunctions to restrain, 363, 364. NOTES, copyright in, to a book, 460. NOTICE, of motion, form of, 611, 612. service of, 609, 610. effect of amendment on, 616. to commit, 639. to treat under Lands Clauses Act, 804-307, 312. served before expiration of compulsory power is sufficient, 315, 316. equities enforced against persons taking with, 46, 50. covenants enforced in equity against persons taking with, 530, 531. a man to whom a misrepresentation has been made is not bound by, 39. purchaser for value without, not deprived of any advantage he may have at law, 588. NOVELTY, of an invention, within the meaning of the Patent Law, 411-413. question one of fact for the jury, 413. NUISANCE, what it is, 332, 333. may be public or private, 333. diminution of value does not make an act a, 338, 364. who may sue to restrain, 334-337. parties to suit, 337. pleading, 350. threatened, 339. increasing, 338, 350. temporary, 338. recurring, 338. coming to a, 364. no time will legalize a, public, 362. by private persons, principles on which the court acts in restraining, 332, 337-340. - by public companies in the construction of their works, 340, 341. principles on which court interferes, 341, 342. by public bodies of functionaries, 345-348. principles on which court interferes, 346 . motives of suit not in general looked to, 335, 346. effect of delay in coming to the court, 348-360. 712 INDEX. NUISANCE — continued. to dwelling-houses and houses of business, 850, 351, 365, 366. standard of damage required by the court as a condition of its interference by injunction, 351. who may sue, 351. obstructing of light and air, 352-360. pollution of air, 360-362. noise and noisy trades, 363, 364. interference with right of drain and drip, 364, 365. various nuisances, 365, 366. mandatory injunctions against, 366. to support, 366-377. relating to water, 377-395. injunctions against, 393-395. to navigable tidal waters, 395, 396. perpetual injunction against, 350. NUISANCES REMOVAL ACT, persons acting under, restrained by injunction, 348. OFFICER OF A COMPANY, man restrained from acting as, 602. OFFICER OF THE COURT, injunctions to restrain proceedings at law against an, 144. receivers, 145. sequestrators, 146. injunction, to restrain proceedings at law by an, 147. sheriff not an, 147. ORCHARDS, waste in, 244. ORNAMENTAL TIMBER. See Equitable Waste, Timher, Trees. OUTLAWRY, injunctions to stay process in, 21. PAINTINGS, copyright in, 466. PARENT AND CHILD, rule in equity as to dealings between, 45, 46. parent restrained from custody of child, 698, 699. PARK, waste in a, 246. reclaiming deer, 245. INDEX. 713 PARLIAMENT, construction of acts of, 301, 302. no injunction in general to restrain a man from applying to, 9, 557. court may, however, restrain a man from applying to, 519, 520. agreement not to apply to, may be enforced, 519, 520. injunction to restrain a company from applying the corporate funds in paying the expenses of an application to, 556, 573, 674. PARLIAMENTARY POWERS. to take land, nature of, 298-300. persons having, may take what they deem necessary, if there be bona fides, 302, 303. PARTICEPS CRIMINIS, the aid of the court may be sometimes given to a, 51. PARTICULARS, delivery of, 407, 408. PARTIES, absence of, not material, if property be in danger, 208, 237. in suits to restrain the violation of a common-law right, 207, 208, 440. one suit cannot be maintained against several persons for distinct inva- sions of a right, 207, 336, 404, 440, 550, 551. misjoinder of, 336, 480, 551. PARTING, /"-—--^ r^ / vrith property, documents, &c., injunctions to restrain the, 489, 595, 596. PARTNER, /^^^2i«_«^ ^<,>z.w/^<. <(i.,,.^-„!<..«e^'»^ ^J /vt^^i,,,^^ / £/^ injunctions to restrafn a man from holding out another as, 169, 170. , injunctions to restrain an action at law by one, against another, 169. may, in the absence of agreement, carry on business after dissolution, 167, 478. restrained from carrying on business after dissolution contrary to agree- ment, 167. who seeks equity must do equity, 170. misconduct of, quarrels, &c., 168. protection of partnership property from creditors of a deceased or bankrupt, 169. PARTNERSHIP, effect of appointment of a receiver of a, 170. injunctions during or after dissolution of, 166. injunction, though dissolution not sought, 164, 165. injunction to restrain a man from holding out that he is in, with another trader, 478. PARTNERSHIP STYLE. See Trade-Marh. right to, after dissolution, 167, 168, 477-479. after decease of partner, 168, 479. passes on the assignment of the business, 168, 479. 714 . INDEX. PART PERFORMANCE, -pdoct^e of, fcran^ed on fraud, 43. PAR^^IlL, 3%. PASTURE, breaking up a, 249. PATENTS, subject-matter of, 410. validity of, 409, 410. novelty, 411-413. utility, 429. are questions of fact for the jury, 41 429. publication, 416-418. user, 414-416. are questions of fact for the jury, 418. true and first inventor, 413, 414. assignment, 423. license, 424. registration, 423. title, 423. disclaimer, 425-427. memorandum of alteration, 425. specification, 418-423. construction of, 427, 428. functions of judge and jury in matters affecting the, 427, 428. infringement of, 429-432. functions of judge and jury on questions as to the, 433. injunction to restrain the, 400-403, 433. pleading, 403. parties, 403, 404. affidavits, 404, 405. interrogatories, 405, 406. delay and acquiescence, 406. direction of issues, 219, 220, 407. order as to admissions, 406. order as to inspection, 433-435. order as to sample, 434. delivery of particulars, 407. trial of issues, 218, 219, 407, 408. evidence, 407-409. motion for a new trial, 218, Addenda. costs of issues, 221. account as incident to, 435-437. other relief as incident to, 437. inquiry as to damages, 436. perpetual, 437. costs of suit, 437. INDEX. 715 PAYMENT OF MONEYS, into court, as a condition of granting an injunction, 19, 20, 212, 622. not ordered, if equitable case be a clear one, 20. injunction^ to restrain the, 595-697. out of court, injunctions to restrain parties from acting on an order for, to them, 602. PEACE, BILLS OF, 134-136. PENALTY. See Forfeiture. relief against a, 79-81 . as distinguished from liquidated damages, 81, 514-518. no injunction, if sum named be liquidated damages, 81, 519. if sum named be a, injunction to restrain breach of covenant is not excluded by payment, 614. must be waived by persons who come to the court for relief, 237, 442. clauses imposing a, distinguished from clauses which give a privilege in the event of prompt payment, 82. PERIODICALS, copyright in articles contributed to, 469-461. PERMISSIVE WASTE, 239, 252. no injunction in general or account for, 252. exceptions under special circumstances, 252. PERPETUAL INJUNCTION, 11, 132. is in effect a decree, 133, 637. decreed, if an equitable case be shown, 133. not granted till the hearing, 133, 227. granted, though not prayed by the bill, 607, 637. against the violation of common-law rights, principles on which granted, 225. granted in general after verdict or award, 224, 225. not granted, if damage be small, 225. granted in clear cases without trial of the right, 225. granted, notwithstanding appeal, 226. acquiescence as a bar, 226. postponed till after a certain period, 226. not usually asked for, 227. account as incident to, 228. costs, 228. against repeated ejectments, 134. inheritance may be bound in one verdict, 133. against multiplicity of suits, 135. where one general right is claimed or defended against many persons, 135, 136. not where rights are disputed between two persons only, 135, 136. or where right is sought to be established in contradiction to the public right, 136. 716 INDEX. PETITION, injunction granted on, 607, 608. PHOTOGRAPHS, copyright in, 466. PIRACY, of copyright in books, 451-455. of copyright in prints, engravings, &c., 464, 465. of copyright in musical compositions, 459. of trade-marks, 483, 484. . PISCARY, drying up, 245. PLANS, of a projected railway, 305, 316, 317. if referred to, read along with agreement, 601. mere exhibition of, not a warranty, 501 . PLEA, injunction not granted pending a, 619. effect of allowance of, on injunction, 634. PLEA ON EQUITABLE GROUND. See Equitable Plea. PLEADING, in bills to restrain actions at law, 16, 17. until discovery, 29, 30. in interpleader suits, 126, 127. in bills for the protection of legal rights pending the trial of the right, 206. 237. in bills to restrain the infriogement of patents, 403-405. in bills to restrain the infringement of copyright, 439, 440. acquiescence in a nuisance, 350. damage in trade-mark cases, 480. in suits to restrain setting up terms, 689. in suits by judgment creditors, 680. in suits by a shareholder against a company, 551. parties seeking equitable relief must waive penalties, 237, 442. POSSESSION, taken under Lands Clauses Act, 304-310. no injunction against parties continuing in, 311, 325. ordered to be delivered up to sequestrator, 599, 600. injunction to quiet, until the hearing, 603, 604. injunction to stay delivery up of, 21. of a cause by the court, injunctions against proceedings at law after, 103-105. PREFERENCE SHARES, 559, 560. injunction against issuing, 566. PRESCRIPTION ACT, 354, 356, 383, 384. cases in which it does not apply, 360, 362. INDEX. 717 PRESENTATION, injunction to restrain, 577, 601, 602. PRESUMPTION, of grant, 355, 383, 392. PRINCIPAL AND AGENT, doctrine as to dealings between, 44, 45, 57. principal bound by acquiescence of agent, 202. principle; of machine in reference to the patent law, 410. PRINTS, copyright in, 464-466. piracy of, 464, 465. no copyright in immoral, obscene, or libellous, 466. printed abroad, copyright in, 465, 466, 471. PRIVACY, loss of, by opening a window, 354. PROBATE, injunction and receiver finding suit respecting, 162, 16S . PROBATE COURT, injunction to restrain proceedings in, 148, 152. no injunction to restrain granting probate, 152. PROCESS, meaning of, in reference to the patent law, 411. law as to a patent for a chemical, different in some respects irom general law as to patents, 412, 413. PROHIBITION, nature of, 14. as distinguished from an injunction, 14, 15. PROMOTERS OF PUBLIC WORKS, rights and liabilities of, 298-300. agreements of, with land-owners, 562-664. PROPERTY PENDENTE LITE. See Protection of Legal Rights to Properly Pending the Trial of the Bight. PROSPECT, shutting out a, 354. PROTECTION OF LEGAL RIGHTS, PENDING THE TRIAL OF THE RIGHT, 196. principles on which the court intei:feres for the, 196, 197. serious or irreparable damage, 197,- 199, 200. interference for the, although there is no ground of action, 198. right to, not excluded by imposition of penalties, 198. penalties must however be waived, 199, 237, 442. conduct of plaintiflf must be fair and equitable, 200, 480-482, 495. acquiescence as a bar to the application, 201-203, 496, 496. 718 INDEX. PROTECTION OF LEGAL RIGHTS, &a. — continued. delay as a bar to the application, 205. pleading, 206. affidavits, 207. who should sue, 207. motives with which a suit is instituted sometimes looked to, 207, 335. parties, 207, 208. absence of parties, 208. . course of the court in dealing with the application, 208, 209. balance of convenience and inconvenience, 209, 210. terms imposed on defendant as a "condition of not granting an injunc- tion, 210, 211. terms imposed on plaintiff as a condition of granting an injunction, 212. order as to admission to be made at trial, 213, 406. demurrer to bill, 213. injunction, notwithstandingappeal, 214. costs of motion, 214-216. PUBLICATION, of documents, papers, &c., in breach of confidence restrained by in- junction, 177. of lectures, restrained by injunction, 189. of letters, restrained by injunction, 187. of manuscripts, &c., restrained by injunction, 182, 183. of proceedings pending before court of justice restrained, 462, 603. of things, &c., contrary to agreement, 506. no copyright at common law in a book, &c., after, 184, 445. what amounts to, 184. public representation or performance of a dramatic piece, or musical representation, is a, 463. of an invention vitiates a patent, 416 . what amounts to, 416-418. question one of fact for the jury, 418. PUBLIC FUNCTIONARIES, injunctions against trespass by, 295-297, 672. injunctions against nuisance by, 345-348. principles on which injunctions are granted against, 295, 296, 341, 542, 572. PUBLIC POLICY, agreements, assignments, &c., in fraud of, 50, 51, 101. the objection that the plaintiff is particeps criminis will not prevail when an agreement is repudiated on grounds of, 51. PUBLIC WORKS, construction of, 320, 340-344. lauds injuriously affected by, 311, 312, 342-345. INDEX. 719 PURCHASER, restrained from paying moneys, 596. in possession, restrained from committing waste, 263, 288. PURITY, of a natural stream, 382. of an artificial watercourse, 388, 394, 395. of a navigable tidal river, 396. PURPRESTURE, what is a, 396. as distinguished from nuisance, 395. inquiry whether beneficial to the Crown that it should remain, 396. not where it is also a nuisance, 396. injunction to restrain a, 395, 396. Q. QUARRY, as distinguished from a mine, 247. tenant for life, &c., may not work an open, 247. interest of copyholder in a, 248. estovers of a, 247. trespass in a, 292. QUOTATION, how far allowed, 453, 454. QUIETING POSSESSION, until the hearing, injunctions, 603. R. RABBIT WARREN, breaking up a, 245. RAILWAY, r^-^-^ C^c^^ construction of a, 316. private siding to a, 322, 398. hindering the construction of a, 398. running powers of, over another railway, 322, 323. carriages and engines to be brought on a, 324. RAILWAY CLAUSES CONSOLIDATION ACT, 317-324. clauses relating to minerals, 371-374. See Statutes referred to. RAILWAY COMPANY. See Companies, Trespass, Nuisance. restrained from carrying on business of coal merchant, 542. restrained from opening line without sanction of Board of Trade, 543. restrained from making unequal charges, 543. restrained from improperly applying its funds, 654-557. restrained from entering into contracts ultra vires, 558-562, 564. restrained from leasing the line to another company, 560. 720 INDEX. Jiyj- RAILWAY COMPANY — continued. restrained from doing improper acts, 639. restrained from issuing preference shares, 559, 560. working agreements of, with another company, 560-562. power of, to pass over another line, 322-324. agreement of, as to passing over another line, 822, 323. powers of, to effect a junction with another line, 323, 324 RAILWAY TRAFFIC AND CANAL ACT, 543. ^ iniunctions under, 543, ^44. V /__ „^,. _ _ RECEIVER, ciiV^^.^.W^'^^*-^;^^^!^^-'-^^*'^'"*^ /i/S,yVG pending suit respecting probate, 162. in partnership cases, 170. of rents of land, 195. promoters of a company taking land in possession of a, 305. proceedings at law against, restrained, 145, 146. may have an injunction against waste by tenants for years, 264. effect of appointment ofj 170. RECREATION, ground dedicated to public, 398. RECTIFICATION, of instruments on ground of mistake, 55. REFERENCE, ^^^^0^^316,^17. ^^^^_^-^^j___--;:^-^^^ ^gItta, jj holding a, 366. REGISTRATION. See Copyright. REGISTRY, injunction to stay indorsement of certificate of, 96. RELATOR, name of person not to be used as, without written authority, 609, REMAINDER-MAN. See Copyholder, Reversioner. may not commit waste, 277. may not join in waste for his own benefit, 256, 277. may have an injunction against waste by tenant for life, 235. for life may have an injunction against waste, 236, 256. mesne, may have an injunction against waste, 256. but not an account, 286. of equitable estate may have an injunction against waste, 257. of part of the inheritance may hive an injunction against waste, 257 relief in efluityjtgainst sale by, of iis interest in remainder, 48. RENEWABLE LEASl^Toee iessec, Tenantjor Lives renewable for ev RENEWAL, covenant for perpetual, forfeiture for breach of, 90. INDEX. 721 RENT, relief against forfeiture for non-payment of, 83, 84. REPAIRS. See Estovers, Covenant, Forfeiture, Permissive Waste. REPORTS, of cases at law, copyright in, 450, 462. RESTRAINT OF TRADE, covenants in, 506-508. when valid, 508-511. enforceable by injunction, 604r-507, 612, 613. REVERSIONER, may have an injunction against nuisance, 336, 337, 351. may have an injunction against breach of covenant, 502. bound, if right to light is acquired against lessee, 357. sale by, set aside, 48. REVIEW, copyright in articles contributed to a, 459-461. REVIVOR, not necessary in perpetual injunction, 133. RIDE, protection to timber given by a, 272. RIGHT OF COMMON, bill of peace in respect of, 135, 136. RIGHT OF WAY, nuisance to a, 398. obstruction of a, 534. RIPARIAN PROPRIETORS, rights and liabilities of, 378-381, 391. injunctions against, 330, 393, 394. cannot grant their water-rights apart from their estate in the land, 378. RIVER. See Stream, Water, Watercourse. rights of riparian proprietors in the bed of a, 377. rights of riparian proprietors in the water of a, 378, 379. user of water of, for domestic purposes, 380. user of water of, for manufacturing or agricultural purposes, 380. banks of a, getting out of repair, 622. navigable tidal, nuisance to a, 396, 397. rights of Crown in a, 393-397. right of conservation, 397. powers of commissioners of sewers as to a, 397. private or exclusive right of fishery in a, 136, 396. ROAD, <=2^€^^— '*-;?' 6.^c=^£^ '^-iy^^J^ L^^ . power to mineral proprietor to make a, over land of others, 303. public interference with or obstruction of a, 320, 321, 534. construction of railways over, 320, 321. 46 722 INDEX. ROAD — continued. substituted, 321. KOAD BOOKS, copyright in, 450, 455. piracy of, 455. RUNNING POWERS, 322-324. S. SALE, injunction to stay, 171, 172, 685, 692-594. injunctions to stay exercise of power of, 192, 193, 693. no injunction against, of real estate by voluntary settlor, 594. injunction against, by sheriff of goods taken underj^.yh., 594. injunction against, of cargo of a ship by the captain, 694. injunction to stay, notwithstanding order for sale by court of bank- ruptcy, 686. SAMPLE, order for delivery of, 434. SAND, copyholder of inheritance may by custom have a right to dig, for sale, 248. SAPLINGS, cutting, 274, 276. SCANDAL, no injunction pending reference as to, 619. SCHOOL, converting premises to the purpose of a, 504. SCHOOL BOOKS, copyright in, 460. piracy of, 455. SCHOOLMASTER, injunctions against removal of, 175, 176, 677. SCOTLAND, injunctions to restrain proceedings in, 155, 157, 158. SCULPTURES, copyright in, 466. SEA-SHORE, injunctions against removing part of the beach of the, 290, 293. ^ ^^ rights of the Crown in the, 395, 896. encroachment on the, 395, 396. j f/^ injunctions against obstructing access to the, 398. SECRETARY AT WAR, restrained by injunction, 348. INDEX. 723 SECRETS, of trade, injunctions against tbe disclosure of, 181. no injunction against disclosing, contrary to agreement, 525. SECURITIES, marshalling, 69, 70. right of surety to, in hands of the creditor, 77. injunction against the negotiation, assignment, &c., of, 595. ' SEEDS, sowing land with pernicious, 250. SEPARATION DEED, covenants in a, enforced by injunction, 606. SEQUESTRATION, injunctions in matters of, 599, 600. writ of, for breach of injunction, 645. SEQUESTRATOR, injunctions to restrain proceedings against, 146. forcibly dispossessed, injunction to restore possession of, 146. writ of assistance to put*, in possession, 147, 600. SERVICE, of bill, 608, 609. of notice of motion, .609., 610. of short notice of motion, 610. of notice of injunction, 624, 638. of order for injunction, 624, 625. substituted, 609, 625. affidavit of, 621. order for injunction made on, if defendant do not appear, 621. of notice of motion to commit, 639. SET-OFF. See Equitable Set-Off. general doctrine as to, 63, 64. SETTING UP IMPEDIMENTS. See Setting up Terms. ^ at law, parties restrained from, 587-589. purchaser for value without notice, not restrained, 588. SETTING UP TERMS, parties restrained from, 587. pleading, 589 ; parties, 589. not done upon motion, 589. purchaser for value without notice not restrained from, 588. SETTLOR, waste by the, 268. voluntary, of real estate may defeat the settlement by sale, 172, 594. of personal chattels not restrained from defeating the settlement, 172. 724 INDEX. SEVERANCE, right to easements by, 356, 369, 392. SEWERS, commissioners of, 347. injunctions against nuisances by, 347. injunctions at suit of, 347. power of, to determine whether an obstruction to an arm of the sea, &c., is justifiable, 397. -O powers of, to take houses, 326. i a/j

, equities in respect of a, will be enforced, 96. injunctions to restrain the sailing of a, 600. injunctions to restrain captain from receiving freight, 601. injunctions to restrain employment of, in a manner inconsistent with charter-party, 526. protection of property in a, during litigation, 601. SHHTING LIST, copyright in, 450. SmmG TO A RAILWAY, obstructing a, 398. SIMONY, 50. • SMELTING HOUSE, injunctions against a, 361, 362. SMOKE, injunctions against discharging, 361, 362. of a chimney, injunctions against obstructing, 366. SOAP BOILING, 362. SOIL, right to support for, 366-368. in its natural state, 366, 367. INDEX. 725 SOIL — continued. right to support for excavated, 868. incumbered with buildings, 368, 369. arising by implication on severance, 369. may be waived by deed, 367. effect of clauses relating to minerals in the Railways Clauses Consolidation Act, 370-374. SOLICITOR, restrained from divulging confidential communications, 178. restrained from acting as, 179, 180. general doctrine as to dealings between client and, 44:-46. SOVEREIGN, no injunction to restrain a man from applying for a grant to a foreign, 3, 9. injunction at the suit of a foreign, 2. SOWING, with pernicious seeds, 250. SPECLA.L DAMAGE, in cases of trespass, 297, 298. in Cases of nuisance, 334. in cases of the breach of a statute, 335, 544-546. SPECIAL TRIBUNALS, constituted for a special purpose, no equity to restrain proceedings in, by a person entitled to do so, 153. secUrS where there is fraud, 153. SPECIFICATION, of a patent, 418-422. enrolment of, 422. provisional, 422. construction of the, 427, 428. SPECIFIC CHATTEL, enjoyment of, protected, 593, 694. SPECIFIC PERFORMANCE, injunctions to restrain ejectment on the ground of, 91, 94, 538, 539. injunctions pending suit for, 537. injunctions against actions for deposit pending suit for, 536, 637. injunctions against alienation pending suit for, 535, 536. injunctions to restrain actions at law after dismissal of bill for, 539. injunctions to restrain proceedings at law after decree for, 539. SPELLING-BOOKS, copyright in, 450. SPIRITUAL CORPORATIONS, restrained by injunction, 577. restraining statutes, 264, 265, 577. 726 INDEX. SPIRITUAI. COURTS. See Ecclesiastical Courts. STALLAGE, right of, 398. STATIONERS' HALL, entry at, 447, 448. STATUTE. See Statutes referred to. Companies. construction of, 301-303. rights arising under, are legal rights, 54 J,. action upon a, 544. injunction to enforce a, 542, 543, 545, 546. mandamus to enforce a, 543. STOCK, --tmnefeyof, ^est^aiMdJ690-59^^ " " J^/c^^x^^^e^A-^tT-^-'i'^'y . STONE, quarrying 245, 247, 248. removing valuable, 290, 292. STRANGER, trespass by a, injunctions against, 290, 292. STREAM. See Water, Watercourse. rights of riparian proprietors in a natural, 878-381. source of, a, 381 ; accessions to a, 882. flowing from underground^ 382. diversion of water from a, 881 . injunction to restrain, 393. fouling a, 382. injunction to restrain, 398, 394. mandatory, 394. SUBSTANTIAL DAMAGE, in cases of waste, 238, 239. in cases of breach of statute, 335, 544-546. to rights in water, 379, 380, 382, 393. in cases of nuisance, 337, 888, 352. SUPPORT. See Soil. right of, for soil, 366-368. by severance, 369, 870. for buildings, 368, 875. mutual, between adjoining houses, 375. SURETY, discharged by alteration of instrument, 70-72. by giving time, 72. discharged by release of debtor, 74. by creditor taking security in lieu of original security, 76. INDEX. 72T SURETY — continued. not discharged by taking further security, 75. by passive inactivity of debtor, 75, 76. by assignment of debt, 75. reservation of rights against, on giving time, 73. entitled to benefit of securities in hands of creditor, 77. creditor not bound to proceed against the debtor before proceeding against, 76. caanot put an end to liability, 76. indorsee of accommodation bill is in the position of a, 71. notice that a man appearing as a joint debtor is a, is binding on cred- itor from date of notice, 78. T. TENANT. See Landlord and Tenant. TENANT BY THE CURTESY OR DOWER, liable for waste at common law, 239, 257. TENANT FOR LIFE. See Estovers. liable for waste by statute, 239, 256. property of, in timber, &c., 239-241, 280. may not fell timber, except for special purposes, 240, 241, 243. may take estovers of timber, 243, 244. may not open mines, 246. may work open mines, 245, 246. may not work open limestone quarries, 247. may take estovers of minerals, clay, &c., 247. may cut turfs for estovers, 247. in remainder may have an injunction, 235, 236, 257. TENANT FOR LIFE WITHOUT IMPEACHMENT OF WASTE, 267, 268. may not commit equitable waste, 268, 282. pulling down mansion-house, buildings, &c., 269. cutting ornamental timber, 270-274, 282, 283. trees planted for shelter, 271. may thin ornamental timber, &e., 274. may not cut young trees or saplings, 274. or underwood of insufficient growth, 275. _ may open and work mines, 284. may not derive an undue advantage from a power of sale or exchange, 276. receiving price of growing timber on a sale, 279. may not commit waste by collusion, 277. may not authorize waste before his estate comes into possession, 277. made subject to trustee of a term, 276. qualified by clause " except voluntary waste," &c., 275. 728 INDEX. TENANT FOR LIFE WITHOUT, &c. — continued. settlor of the estate, 268. in remainder, 277. may bring trover, for timber wrongfully severed by prior tenant for life, 280. may not take any benefit from his own wrongful acts, 282. TENANT FOR LIVES RENEWABLE FOR EVER, 260. may commit meliorating waste, 260. may not commit equitable waste, 260. TENANT FOR YEARS, liable for waste by statute, 239. property of, in timber, &c., 240, 241. may take estovers, 248, 247. may work open mines, 246. without impeachment of waste, 275, 276. enjoyment of easement adverse to, 357. TENANT IN COMMON, injunction to restrain waste by, 257. of a patent, may assign his share and sue alone for an infringement, 423, 424. may work the patent for his own gain, 435. may sue alone for the piracy of a trade-mark, 480. pleading where account is sought, 490. TENANT IN FEE SUBJECT TO EXECUTORY DEVISE, not liable for legal waste, 259. may not commit equitable waste, 259. TENANT IN FEE HOLDING IN CONFIDENCE THAT HE WILL LEAVE THE PROPERTY IN A CERTAIN MANNER, 259, 260. TENANT IN TAIL, in possession, 258. dispunishable of waste, 258. infant, 258. after possibility of issue extinct, 258. not liable for legal waste, 259. may not commit equitable waste, 259. with reversion in the Crown, 259. dispunishable of waste, 259. under act of Parliament, which precludes the barring of the entail, 259. dispunishable of waste, 259. may sometimes be restrained from committing equitable waste, 259. TERMS OF YEARS WITHOUT IMPEACHMENT OF WASTE, tenant for life of, 276. trustees of, 276, 276. tenant for life, subject to, 276. . INDEX. T29 TERMS. See Setting up Terms. imposed as a condition of granting or withholding an injunction, 18, 19, 210, 211, 621-623. of order for injunction, 624. TIMBER, what trees are, 239-241. property in growing, 240. rights of copyholder in, 242. rights of copyholder of inheritance by custom in, 242, 243. waste in, 240, 241. on ecclesiastical estates, 265. property in, severed accidentally or wrongfully, 280, 282, 283. wrongdoer can derive no benefit, 281, 282. proper thinnings of trees, &c., in a wood, 282. cut under the direction of the court, 277-279. application of produce, 278, 279. on estate of infant, 279. on ecclesiastical estates, 267, 279, 285. Settled Estates Act, 279. property in, severed on estate of infant, 258, 279. severed on lunatic's estate, 244, 281. ornamental, what is to be considered, 270-274. property in, severed wrongfully, 282. cut under direction of the court, 279. may be thinned, 274. TIMBER ESTATES,-241. , ) / Jf^ TITLE, ,A^-^^-^ ^r^^:^^''^"^^^'^ color of, 290, 291. / of a book, right of author in the, 478, 479. of a journal, name of editor not a necessary part of, 479. of a patent, 423. TRADE, fixtures set up for, 258. trees planted for the purpose of, 253. covenants in restraint of, 605-513. restraint in point of time, 509. restraint as to space, 510-513. injunctions to restrain setting up a, 167, 504, 505, 507, 518. TRADE LIST, copyright in, 450. TRADE-MARK, nature of a, 474, 475. may be either local or personal, 476. subject of a, 476. name may be a, 476. 730 INDEX. TRADE-MARK — continued. partnership style is a, 477. title to a, 167, 168, 479, 480. tenancy in common in, 480, 490. what constitutes piracy of a, 483-486. injunctions to restrain piracy of a, 480, 488, 489. pleading, 480. parties, 480. alien may sue, 480. no, if there be misrepresentation, 480-482. slander of goods as distinct from misrepresentation, 487. extent of injunction, 489. agents, &c., restrained, 489. account, 489, 490. inquiry as to damages, 490. discovery for purposes of account or inquiry as to damages, 490. costs, 490, 491.; TRADE SECRET, no injunction in general not to divulge a, 181. . injunction not to divulge a, if there be duty or contract not to do so, 167, 181. no injunction to restrain a man from disclosing a, which he had agreed to keep, 526. TRANSFER, of property, documents, &c., injunctions to restrain the, 595-597. of stock, injunction to restrain the, 590-592. TRANSLATION, copyright in, 458. of books published abroad, 458, 471. of a book published in this country may be a piracy, 458. TREES. See Timber. other than timber, 240. exception of, 241. covenant as to, 242. ornamental, 270-273. planted by nurserymen, 253, 254. cutting young, comes within principle of equitable waste, 274. property in dead, 241. TRESPASS, injunctions against, 287. application by party out of possession, 287-289. application by party in possession, 289, 290. trespass under color of title, 290-292. trespass by a stranger, 290-292. INDEX. 731 TRESPASS — continued. naked trespass, 293. principles on which the court interferes, 294, 295. pleading, 311. no injunction in general, if act is complete, 295. exceptions, 296. trespass by companies or bodies, incorporated by statute, 295. principles on which the court interferes, 296, 297, 304. no injunction to restrain a company in possession under a legal or equitable title from continuing in possession, 297, 811, 325. after winding-up order, leave must be had, 297. if there be public damage, the Attorney-General should sue, 297. private persons may sue, if specially injured, 298, 300, 318. delay and acquiescence as a bar to an injunction, 201-205, 298. account as incident to injunctions against, 329. limited to six years before bill filed, 329. exception, if there be fraud, 329. of minerals, charges, allowances, &c., 330. perpetual injunctions against, 331. mandatory injunctions against, 330, 331. TKIAL OF ISSUES, 217. not directed before hearing, 219. mode of, 218, 224. scientific evidence on, 219. in a patent suit, 407-409. verdict of jury, 218. findings of the judge, 219. verdict or findings may be questioned, 219. motion for new, 218-220, Addenda. costs, 221. TRUE AND FIRST INVENTOR, 413, 414. TRUSTEES, injunctions against, 171, 172, 692. for public purposes, injunctions against misapplication of trust funds by, 571-574, 576. who should sue, 174, 571. parties to the suit, 174, 571. under trust deeds for religious bodies, injunctions against, 173, 174. who should sue, 174. • parties, 174. under trust deeds for the purposes of education, injunctions against, 173, 176, 176. of the fee, right and duty of, in respect to waste, 257. for purchase, also tenants for life, 277. of a term of years without impeachment of waste, 276, 276. 732 INDEX. TRUSTEES — continued. to preserve contingent remainders, injunctions at suits of, 256. general doctrine as to dealings between, and cestuis que trusteni, 44-46. restrained under circumstances from acting on order for payment of moneys out of court, 172, 602. TUNNELy construction of a, 317, 318. TURBARY, 247, 248. TURNPIKE ROADS, trustees of, restrained by injunctions, 348. U. UNDERHAND AGREEMENTS, 48, 49. UNDERLESSEE, restrained from committing waste, 264. , UNDERTAKING, ^il^ c:^^J>^-^z^^y.^^'^'-j^^^''^^-f -2-/^ with the court has the effect of an injunction, 638. as to damages, 212, 621, 622. remains in force, notwithstanding dismissal of bill, 622. UNDERWOOD, right to cut, 241, 244. equitable waste in, 275. UNDUE mrLUENCE, 47, 48. UNITY OF TITLE. See Severance. UNIVERSITY COPYRIGHT, 461, 462. UNPUBLISHED MATTER, MANUSCRIPTS, &c., rights of ownership in, 182-184. transfer of, 184, 185. of an irreligious, seditious, or libellous character, 186. injunctions against publication of, 183, 185, 186. USE, which may be made of lands taken compulsorily, 366, 545, 646. USER, of an invention vitiates a subsequent patent, 414-416. what amounts to, 414-416. question one of fact for the jury, 418. UTILITY, of a patent, 429. question of fact for the jury, 429. V. VAULT, obstructing entrance to a, 398. i:ndex. 733 VERDICT. See Perpetual Injunctions, Trial of Issues. whether inheritance bound on one only, 133, 134. VEXATIOUS LITIGATION, PREVENTION OF, 103-186. VIADUCT, construction of a, 317, 318. VOLUNTARY SETTLEMENT, of chattels binding on settlor, 172. injunction against defeating, 172. of real estate not binding on settlor, 172. no injunction against defeating by sale, 172, 594. under mere trusts for payment of debts, 172. VOLUNTARY WASTE, 239. W. WARD, intercourse with, restrained, 698. marriage with, restrained, 598. WARREN, waste in, 245. WASTE. See Equitahh Waste, 284. definition of, 238, 239. , meliorating, 239, 249, 260. voluntary or permissive, 239. in what cases punishable at common law, 239. in timber, trees, &c., 239-241. what trees timber, 240. what from their situation, 240. cutting underwood, when waste, 241. thinning trees, &c., not waste, 241. exceptions as to timber estates, 241. estovers, 243, 244. in gardens, parks, &c., 244, 245. in mines, clay, gravel, stone, &c., 245, 247. estovers, 247, 248. n turfs, 247, 248, estovers, 247. by alteration of property, 249. ploughing up meadow land, 249. converting arable land into wood, 249. by bad cultivation, 249. in buildings, houses, &c., 250. permissive waste, 252. from accident, 251, 262. removing fixtures, 252. 734 INDEX. WASTE — continued. exception as to trade fixtures, 263, 254. injunctions against, 236-238. principles on which granted, 235, 236. penalties must be waived, 237. pleading, 236. parties, 237. effect of delay, 237, 238. hy tenant for life or years, 236, 256, 263. at suit of remainder-man, 236, 266. mesne remainder-man, 235, 266. remainder-man for life, 236. ' trustees to preserve remainders, 256. infant en ventre sa mere, 236. other parties, 256, 257, 264. by tenant in dower, 267. by tenant by curtesy, 267. by jointress, 257. by coparceners, tenants in common, and joint tenants, 257, 268. by copyholders, 261. by lord of manor, 260. by ecclesiastical persons, 264-267. by mortgagee in possession, 261. unless security be defective, 261. by mortgagor in possession, 262. if security be defective, 262. by purchaser in possession before payment of moneys, 263. by other parties, 262, 263. by collusion between parties, 277. account as incident to, 284-286. where injunction is not competent, 284, 285. limits of, 285, 286. between tenants in common, 286. by ecclesiastical persons, 266, 285. effect of delay on, 286. mesne remainder-man not entitled to, 286. perpetual, 286. costs, 286. WATER. See Miver, Stream. rights in running, 378-381. not flowing in a defined channel, 388, 389. subterraneous percolating, 389. flowing from underground, 382. in mines, 390, 391. surface, 388. drainage, 390. INDEX. 735 WATEU — continued. flood, 391. deed of grant of, 391. implication of grant of, on severance, 392. no implication of reservation of right to, on severance, 392, 393. new rights in, not connected with enjoyment of land, not to be created, 378, 392. easements in, acquired by prescription, 382-385. alteration of mode of user of, 384, 385. abandonment of, 386. interruption of the acquisition of a prescriptive right to, 385. WATERCOURSE. See River, Stream, Water. definition of a, 388, 389. artificial, 386. rights and liabilities of parties in an, 386, 387. canal, 387, 388. drains and gutters, 364, 365. implication of grant on severance, 364, 365, 392. no implication of reservation on severance, 364, 365, 392. prescriptive rights in, 365, 387. abstracting water from, 388, 393. fouling or obstructing, 366, 387, 388. injunctions against, 394, 395. entering upon land to repair an, 395. WAY, right of, nuisance to a, 898. injunction against continuing to use a, 295, 331. injunction to restrain the obstruction of a, 534. WELL, owner of land may abstract water from his neighbor's, 389. but may not pollute his neighbor's, 389. WHARF. See Purpresiure, Nuisance. WnSTDESTG UP, injunctions against actions at law after presentation of petition for, 106. injunctions against actions at law after order for, 106. WmDOW. See Air, Light. opening a new, 354. shutting out a pleasant prospect from a, 354. erecting disagreeable objects in view of a, 354. altering an old, 358, 359. WITHOUT IMPEACHMENT OF WASTE. See Tenant for Life loiih- out Impeachment of Waste, effect of this clause, 267. WOODED ESTATE, 241, 276, 277. 736 INDEX. WOODS AND FORESTS, commissioners of, injunctions against, 348, 534. WORKS, PUBLIC, construction of, 341. must be executed bona fide, 343, 344. rule at law as to damage resulting, 341. WRIT OF ASSISTANCE, 147, 600. ""^ ^ WRIT OF OA. BA. OR FI. FA., injunctions to stay issuing of, 21. WRIT OF INJUNCTION, issues pursuant to order, 11, 605. either preventive or restorative, 11. as distinguished from writ of prohibition, 14, 15. does not in general issue, except on bill filed, 605. exceptions, 606, 606. how prepared and issued, 625. how served, 625. WRIT OF POSSESSION, injunctions to stay issuing of, after verdict in ejectment, 21. injunctions to stay delivery up of possession after issuing a writ of possession, 21. Cambridge: Press of John Wilson and Son. '&'