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 » f 1. •' Cornell University Law Library 
 
 The Moak Collection 
 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 ■ And Presented February 14, 1893 
 rN nenoRY op 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OP THE QCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
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Cornell University Library 
 KD 7578.J89 
 
 The doctrines and principles of the law 
 
 3 1924 021 713 577 
 
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This book was digitized by Microsoft Corporation in 
 
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 You may use and print this copy in limited quantity 
 
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THE 
 
 DOCTRINES AND PRINCIPLES 
 
 OF THE 
 
 LAW OF INJUNCTIONS. 
 
 Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
THE 
 
 DOCTRINES AND PRINCIPLES 
 
 THE LAW OF INJUNCTIONS. 
 
 BY 
 
 WILLIAM _jpYCE, ESQ., 
 
 OF unooln's inn, BAERISTER-AT-LAW ; 
 AUTHOR OF "THE LAW AND PRACTICE OF INJUNCTIONS.' 
 
 . . . /Sadpav 7ro\iW dcr<l>a\i'S, 
 Aoca.— Find. OAYMH. ty . 
 
 LONDON: 
 
 STEVENSAND HAYNES, 
 
 Into |«blblj£rs, 
 BELL YARD, TEMPLE BAR. 
 
 1877. 
 
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LONDO.N : 
 
 PRIKTED BY WILC.IAM CLOWES AND SONS, STAMFORD STREET 
 AN1> CHABIKO CROSS. 
 
 Digitized by Microsoft© 
 
TO 
 THE RIGHT HONOUEABLB 
 
 HUGH MacCALMONT BAEON CAIENS. 
 
 LORD filGH CHANCELLOR OF GREAT BRITAIN, 
 
 Etc. ,Etc. Etc. 
 \ 
 
 V 
 
 AS A TRIBUTE OF ADMIRAtiON 1*08 HIS UNSULLIED INTEGRITY 
 AS A JUDGE, 
 
 PROFOUND KNOWLEDGE AS A LAWYER, 
 
 AND 
 
 EXALTED CHARACTER AS A STATESMAN AND LEGISLATOR, 
 
 ^his Wioxk 
 
 IS, BY HIS LORDSHIP'S PERMISSION, 
 RESPECTFULLY DEDICATED 
 btT 
 
 THE AUTHOE. 
 
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Digitized by Microsoft® 
 
PREFACE. 
 
 The object of the Author in the present work is to set 
 forth the doctrines and principles constituting the basis 
 upon which Courts of Equity found their jurisdiction 
 in administering the Law of Injimctions. 
 
 The subject is treated in an abstract form, and all 
 reference to the circumstances of the cases where those 
 doctrines and principles are enunciated are, so far as 
 possible, avoided. No doctrine or principle is stated 
 that is not founded on one or more cases, and these 
 are always cited. It is believed that no doctrine or 
 principle is omitted. So far as possible the doctrines 
 and principles have been stated in the language of the 
 Judges by whom they were pronounced. 
 
 In addition to the cases in the English Courts, in- 
 cluding appeal cases in the House of Lords from the 
 English, Irish, and Scotch Courts, and those in the 
 Privy Council, cases decided in the American Courts 
 
 have also been cited. 
 
 W. J. 
 
 LincdliCs Iim, July, 1877. 
 
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Digitized by Microsoft® 
 
CONTENTS. 
 
 INTRODUCTION. 
 
 PAGE 
 
 Definition op an Injunction .. .. .. .. ., i 
 
 PART I. 
 
 CHAPTEB I. 
 Jurisdiction. 
 
 SECT. 
 
 1. Injunctions to besteain Acts of a Special Nature (not 
 
 BEING PeOOBBDINGS IN OTHEE OoUETS) .. .. .. 3 
 
 2. Injunctions to eesteain Peocebdings in Courts of Law 
 
 AND other Courts .. .. ,, .. .. 9 
 
 CHAPTER II. 
 The Geneeai, Doctrines and Principles of the Law op Injunctions. 
 
 SECT- 
 
 1. Equitable Rights — Equitable Pleas at Law .. .. 26 
 
 2. Legal Rights — Legal Title .. .. .. .. 27 
 
 3. No Adequate Relief at Law — Injury irreparable .. 33 
 
 4. Delay, Laches — Standing by, Acquibscbnob, Conduct of 
 
 Plaintiff — Notice — Ignorance, Mistake .. .. 34 
 
 5. Abuse of Confidence — Feaud, Deceit, Miseepresentation — 
 
 Breach of Trust, Trusts, Trustees — Undue Influence — 
 Parties in Pari Delicto, Pabtioeps Cbiminis — Unconscion- 
 able Bargains .. .. .. .. .. 41 
 
 6. Public Bodies — Public Interests — Public Policy .. .. 50 
 
 7. Discovery .. .. .. .. .. .. 51 
 
 8.. Restraining Actions .. .. .. .. .. 52 
 
 9. Convenience oe Inconvenience of iNTEBPERma by Injunction 
 
 — Interlocutory Applications for Injunctions, Interim 
 Orders — Manpatory Injunctions ,. ,. .. 53 
 
 10. Generally ., .. .. .. .. .. 58 
 
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CONTENTS. 
 
 PAET II. 
 
 THE DOCTRINES AND PRINCIPLES OP THE LAW OP INJUNCTIONS, 
 AS APPLICABLE TO THE VARIOUS SUBJECTS OP INJUNCTIONS 
 
 WHERE IT IS NOT NECESSARY TO RESTRAIN PROCEEDINGS IN 
 
 , COURTS OP LAW AND OTHER COURTS. 
 
 CHAPTER I. 
 
 The Docteinbs and Pbinciplbs ab applicable to Real Pbopertt 
 (including therein Chattels Real or Leasehold). 
 
 SECT. PAGE 
 
 1. Distress, Rent .. .. .. .. .. .. 63 
 
 2. Possession, Trespass .. .. .. .. .. 63 
 
 3. Water, Rivers — Wells — Canals — Perries .. .. 65 
 
 4. MnsTES, Minerals „ .. .. .. .. 72 
 
 5. Customs, Prescription — Right op Common — Fairs, Markets 
 
 — Fisheries .. .. .. .. .. .. 77 
 
 6. Copyholds .. .. .. .. .. .. 80 
 
 7. Leases .. .. .. .. .. .. 82 
 
 8. Executions, Elegit .. .. .. .. .. 84 
 
 9. porpbituhes .. .. .. .. .. .. 85 
 
 10. Covenants .. .. .. .. .. .. 85 
 
 11. Nuisance .. .. .. .. .. .. 99 
 
 12. Waste .. .. .. .. .. .. 109 
 
 13. Mortgages — Judgments — Annuities .. .. .. 127 
 
 14. Vendor and Purchaser, Specific Performance .. .. 133 
 
 CHAPTER II. 
 The Doctrines and Principles as applicable to Personal Property. 
 
 SECT. 
 
 1. Patents .. .. .. .. .. .. 141 
 
 2. Copyright .. .. .. .. .. .. 153 
 
 3. Copyright in Designs .. .. .. .. .. 163 
 
 4. Trade Marks .. .. .. .. .. .. 164 
 
 5. Letters .. .. .. .. .. .. igi 
 
 6. Chattels, Specific Chattels, Fixtures, Pictures, Paintings, 
 
 GrAMB .. .. .. .. .. .. 182 
 
 7. Stocks, Consols — Policies — Deeds, Instruments — Bills of 
 
 BxoHANGEj I. 0. U.s, Promissory Notes — Bonds .. .. 184 
 
 8. Shipping, Shipments .. .. .. .. .. 194 
 
 9. Speciwc Performance .. .. .. .. .. 204 
 
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CONTENTS. 
 
 CHAPTER III. PabtH. 
 
 The Docteines and Principles as applicable to the Incidents of 
 Property (Real and Personal). 
 
 SECT. PAGE 
 
 1. Light, Light AND Air — Easements — Trespass .. .. 205 
 
 2. Publication — Letters — Secrets .. .. .. .. 220 
 
 3. Account— Set-off .. .. .. .. „ 226 
 
 4. Restraint of Trade — Business, Trades — Partnership — 
 
 Bankbuptot, Insolvency .. .. .. .. 230 
 
 5. Bills of Sale, Sales, Alienation, Mortgages — Judgments, 
 
 Charge, Executions — Liens, Charges — Stoppage in 
 
 Transitu .. .. .. .. . .. 243 
 
 6. Grants — Settlements .. .. .. .. .. 246 
 
 7. Pensions .. .. .. .. ., .. 247 
 
 8. Penalties, Conditions .. .. .. .. .. 249 
 
 9. Powers .. .. .. .. .. .. 251 
 
 10. Charities .. .. .. .. .. „ 252 
 
 11. Wills, Probates, Letters of Administration .. .. 254 
 
 12. Gambling, Gaming .. .. .. .. .. 256 
 
 13. Arbitrations, Awards .. .. .. .. .. 257 
 
 14. Interplbadbr Suits .. .. .. .. .. 261 
 
 15. Prerogatives of the Crown .. .. .. .. 263 
 
 The 
 
 SECT. 
 1. 
 
 2. 
 3. 
 
 4. 
 5. 
 
 CHAPTER IV. 
 
 Doctrines and Principles as applicable to Persons and relating 
 to Persons. 
 
 Creditors, Debtors — Principal and Surety — Stakeholder — 
 
 PEINCrPAL AND AgENT — LANDLORD AND TENANT .. .. 265 
 
 Husband and Wipe, Widow — Parent and Child, Infants .. 271 
 
 Authors, Publishers — Actors .. .. .. .. 279 
 
 Officers of the Court — ^Receivers, Sequestrators . . 281 
 
 Barrister, Counsel — Solicitor, Attorney . . . . . . 281 
 
 Executors, Administrators — Devisee . . . . . . 284 
 
 Sovereign, Sovereign Prerogatives — Ambassadors .. 288 
 
 Felons, Felony — Libel, Crimes, Reputation, Mercantile 
 
 Credit .. .. .. .. .. .. 289 
 
 CHAPTER V. 
 
 The Doctrines and Principles as applicable to Corporations and Quasi 
 
 Corporations. 
 
 SECT. 
 
 1. Municipal Corporations — Corporations Aggregate .. 293 
 
 2. Quasi Corporations Aggregate .. .. .. .. 299 
 
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CONTENTS. 
 
 Past II. 
 
 CHAPTER VI. 
 The Doctrines and Principles as applicable to Ecclesiastical Matters 
 AND Burial Grounds . .. .. ■• page 302 
 
 CHAPTER VII. 
 
 The Doctrines and Principles as applicable to Companies (Railway 
 AND other Public Companies). 
 
 SECT. ^*™ 
 
 1. Railway Companies .. .. .. ■■ •• 308 
 
 2. Waterworks and Canal Companies ,. .. .. 347 
 
 3. Insurance Companies .. .. .. •• •• 349 
 
 '4. Banking Companies — Bank of England .. .. .. 349 
 
 5. Companies in general .. .. .. .. ■• 352 
 
 PAKT III. 
 
 THE DOCTRINES AND PRINCIPLES OP THE LAW OF INJUNCTIONS 
 AS APPLICABLE TO THE VARIOUS SUBJECTS OF INJUNCTIONS, 
 WHERE IT IS NECESSARY TO RESTRAIN PROCEEDINGS IN 
 COURTS OF LAW AND OTHER COURTS. 
 
 CHAPTER I. 
 
 The Doctrines and Principles in restraining Proceedings in Courts of 
 Law and other Courts, as applicable to Real Property (including 
 Leaseholds). 
 
 SECT. 
 
 1. Ejectment — Possession .. 
 
 2. Rent — Executions 
 
 3. Lease — Forfeitures — Covenants 
 
 4. Nuisance • .. .. ■ 
 
 5. Annuities — Mortgages .. 
 
 6. Vendor and Purchaser, Specific Performance 
 
 363 
 370 
 371 
 374 
 374 
 376 
 
 CHAPTER IL 
 
 The Doctrines and Principles in restraining Proceedings in Codkts of 
 Law and other Courts as applicable to Personal Property. 
 
 SECT. 
 
 1. Choses in Action — Policies — Bills of Exchange — Promissory 
 
 Notes, I. 0. U.s — Bonds — Guaranties, Legal Instruments 
 
 — Judgments .. .. .. ' .. .. 378 
 
 2. Executions .. .. .. .. .. .. 387 
 
 3. Mortgage of Chattels Personal .. ., .. 389 
 
 4. Shipping .. .. ,, .. .. ,. 389 
 
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CONTENTS. 
 
 CHAPTER III. 
 
 The Doctrines and Principles in restraining Proceedings in Courts oif 
 Law and other Courts as applicable to the Incidents of Property 
 (Real and Personal). 
 
 S£CT. PAGE 
 
 Part UI. 
 
 1. Account — Set-off 
 
 2. Partnership — Bankruptcy 
 
 3. Interpleader .. 
 
 4. Discovert, Bill of, in aid of Action at Law — Actions, 
 
 Proceedings at Law, Audita Qubebla, Verdicts, Judgments, 
 Outlawry, Interdicts, Damages 
 
 5. Arbitration, Awards 
 
 6. GtAMIng, Gambling, Wagering Transactions 
 
 391 
 394 
 395 
 
 397 
 399 
 400 
 
 CHAPTER IV. 
 
 The Doctrines and Principles in restraining Proceedings in Courts of 
 Law and other Courts, as applicable to Persons and relating to 
 Persons. 
 
 SECT. 
 
 1. Principal and Agent .. .. .. .. .. 402 
 
 2. Creditor, Debtor and Creditor — Surety.. .. .. 402 
 
 3. Husband and Wife — Guardian and Ward .. .. 408 
 
 4. Attorney and Client .. .. .. ... .. 409 
 
 5. Officers of the Court, Sheriff, Receiver, Auctioneer 
 
 (under Sanction of the Court) .. .. .. 410 
 
 6. Lunacy .. .. .. .. .. .. 411 
 
 7. Executor, Administrator .. .. .. .. 411 
 
 8. Heir Expectant, Heir-at-Law .. .. .. .. 412 
 
 9. Indictments .. / . .. .. .. .. 413 
 
 CHAPTER V. 
 
 The Doctrines and Principles in restraining Proceedings in Courts of 
 Law and other Courts, as applicable to Corporations, Quasi Corpo- 
 rations, AND Companies. 
 
 1." Corporations — Quasi Corporations 
 2. Companies .: 
 
 414 
 414 
 
 INDEX 
 ERRATUM 
 
 417 
 xlvi 
 
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Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 A. 
 
 • V. Blackwood 
 
 • V. Donovan . 
 - V. Leadbetter 
 
 120 
 
 PAGE 
 
 . 186 
 . 61 
 . 155 
 
 Abemethy v. Hutclimson 222, 223 
 Aberystwith and Welsh Coast 
 
 Eailw. Co. V. Pieroy . . 267 
 Abrahall v. Baljb ) 
 Abraham v. Bubb 3 
 Aoland v. Atwell . . .125 
 Acraman v. Price . . 99^ 204 
 Adamson v. Gill . . . 198 
 Agar V. Regent's Canal Co. . 220 
 Agra and Masterman's Baak v. 
 
 Hoffmann . . . .230 
 Ainslie v. Sims ... 13 
 Ainsworth v. Bentley . . 280 
 Albert (Prince) v. Strange 138, 221, 
 222, 279 
 Aldebert v. Kearns . . . 184 
 Alder v. Pouracre . . .237 
 Aldis V. Fraser ... 63 
 Aldred's Case. . . .210 
 
 Alexanders. Crystal Palace Eailw. 
 
 Co 312 
 
 Allan V. Inman . . . 384 
 Allen v. Davis . . .380 
 
 v. Kilbre . . .235 
 
 V. Martin ... 65 
 
 Alliance Bank v. Broom . . 267 
 AUsopp V. Wheatcroft . . 231 
 Alston V. Eastern Counties Eailw. 
 
 Co 315 
 
 Altmanv.Eoyal Aquarium Society 204 
 
 Ambrose v. Dunmow Union . 398 
 Ames V. Birkenhead Docks (Trus- 
 tees of) . . . .281 
 Amhurst v. Dawling . . 305 
 Anderson v. Commissioners, &c. 217 
 
 V. Lamb ... 16 
 
 V. Wallace . . 237 
 
 Andrew v. Eaeburn . 224 
 
 Andrews v. Berry . . . 400 
 
 V. Hulse ... 81 
 
 V. Salt ... .278 
 
 AnglorDanubian Co. v. Eogerson 187 
 
 Annesley v. Eookes . . . 387 
 
 Anon. (Ambl. 209) ... 77 
 
 (3 Atk. 350) . . 20 
 
 (2 Atk. 469). . . 291 
 
 (3Ch.Eep. 25) . . 399 
 
 (2 Eq. Abr. 522) . . 374 
 
 (1 Jones, 626) . . 115 
 
 . (3 Jur. (N.S)685). . 221 
 
 (2 Kay & J. 441) . . 235 
 
 (1 L. J. (Ch.) 25) . . 134 
 
 (Lofft. 775) . . .155 
 
 (6Madd.lO). . . 128 
 
 (Moor. 159, pi. 300) . 90 
 
 (Pre. Ch. 267) . . 190 
 
 (1 Vern. 119) . 287 
 
 (2 Vern. 147) . . 411 
 
 (1 Ves. Sen. 476) . . 80 
 
 (2 Ves. Sen- 193) . . 109 
 
 (2 Ves. Sen. 414) . 80,31 
 
 (1 Ves. Jun. 93) . . 114 
 
 Anthony v. Brooks . . . 219 
 
 Aplin V. Cates . . . 266 
 
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TABLE OP CASES. 
 
 PAGE 
 
 212 
 
 300 
 184 
 400 
 201 
 
 Aroedeokne v. Kelk . 
 
 Ardley v. St. Panoras (Guardians 
 
 oO . . . 
 Arkwright v. Gryles . 
 Armitage v. AValker 
 Armstrong v. Armstrong 
 
 ■ V. Courtenay 
 
 V. Waterford and Lim- 
 erick Bailw. Co. . . . 317 
 Arnold v. Furness Eailw. Co. . 334 
 Arthington v. Fawkes . . . 219 
 Arthur v. Lamb . . . 119 
 Arundel v. Trevillian . . 190 
 Arundell (Lady) v. Phipps 183, 276 
 
 V. Taunton 183, 276 
 
 Aslunall ?;. Wood .' . . 198 
 Ashwin v. Burton . . 191, 386 
 Ashworth v. Browne . . 80 
 Astell V. lie Page ... 57 
 
 Astley V. Manchester, Sheffield, 
 
 and Lincolnshire Eailw. Co. . 340 
 Aston V. Aston . 45, 114, 120 
 
 V. Heron . . .281 
 
 Athenaeum Life Assurance So- 
 ciety V. Pooley . . 378, 416 
 Atkins V. Chilson . . . 207 
 Atkinson v. Henshaw . . 255 
 
 V. Plummer . . 293 
 
 Att., &c. V. Cohoes Co. . . 295 
 Att.-Gen. v. Andrews . . 296 
 
 ■ V. Aspinall . . 295 
 
 V. Aust . . . 254 
 
 i;. Avon (Portreeve, &c.) 293 
 
 V. Avon, otherwise 
 
 Aberavon .... 293 
 V. Mayor, &c. of Bas- 
 ingstoke .... 100 
 
 V. Birmingham Borough 
 
 Council ... 34, 298 
 V. Birmingham and Ox- 
 ford Junction Eailw. Co. . 62 
 
 V. Boyle ... 28 
 
 V. Bradford Navigation 
 
 Company . . . 71, 104 
 
 V. Briggs . . 337 
 
 V. Cambridge Con- 
 sumers' Gas Company . 102, 105 
 V. Charles . . 104 
 
 Att.-Gen. v. Cleaver 106, 291, 292 
 
 ■W.Clifton. . . 252 
 
 V. Clements . . 272 
 
 V. Colney Hatch Lu- 
 natic Asylum . . 51, 106 
 
 V. Conservators of Eiver 
 
 Thames .... 50 
 
 V. Daniel . . .300 
 
 ■ V. Doughty . . 210 
 
 V, Drummond . 45, 302 
 
 V. Dublin (Corpora- 
 tion of . . . .295 
 V. Governors of Found- 
 ling Hospital . . . 252 
 
 V. Gee . . . 347 
 
 V. Great Eastern Eailw. 
 
 Co 57,294, 
 
 V. Great Northern 
 
 Eailw. Co. . . . 330, 358 
 
 V. Great Western 
 
 Eailw. Co 335 
 
 V. Great Western 
 
 Eailw. Co. and Midland Eailw. 
 
 Co 8 
 
 V. Hackney Local Board 300 
 
 -M. Hesketh . . 305 
 
 V. Johnson . . 104 
 
 V. Kingston - upon- 
 
 Thames (Mayor, &c., of) 100, 101 
 V. Kingston Commis- 
 sioners . . . . . 297 
 
 ■». Lawson . . 303 
 
 V. Leeds (Corporation 
 
 of) . . . .68 
 
 V. Lichfield (Bishop of) 303 
 
 V. Litchfield (Corpora- 
 tion of) . . . .295 
 
 V. Liverpool (Mayor, 
 
 &o. of) . . . 30, 60 
 
 \ V. London and South 
 
 Western Eailw. Co. . . 336 
 
 v. Manchester and 
 
 Leeds Eailw. Ca . . . 311 
 
 V. Mathias . 77, 263 
 
 V. Mayor of Liverpool 45, 
 
 295 
 V. Mid-Kent Eailw. Co. 
 
 and South Eastern Eailw. Co. 335 
 
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TABLE OP CASES. 
 
 xvn 
 
 PAGE 
 
 Att.-Gen. v. Munro . , . . 254 
 
 — ■ — V. Murdoch . . 302 
 
 — = V. Nichol . , 100, 207 
 
 — = V. Norwich (Corpora- 
 tion of) . . . ' 295, 296 
 
 — V. Pearson . . -303 
 
 V. -Poole- (Qqrporation 
 
 of) . . . . . 296 
 
 V. St., Cross (Hospital) 802 
 
 V. St. John's Hospital, 
 
 Bedford . . . .253 
 V. Sheffield Gas Con- 
 sumers' Company 34, 63, 100, 102, 
 194, 105 
 ■ — V. Southampton (Guar- 
 dians of Poor of) . . .297 
 
 v. Southampton (Mayor, 
 
 &o. of) . . . .294 
 
 V. Terry . . . ;66 
 
 ■ V. Tewkesbury and 
 
 Malvern Eailw. Co. " . . 333 
 
 ■■ — V. Tot<(6nham Local 
 
 Board of Health . . , 300 
 
 '■ — V. United Kingdom 
 
 Electric Telegraph Company . 106 
 
 V. Vincent . . 121 
 
 V. Warden, • &c. of 
 
 Louth Free School ' . . 252 
 
 V. Waterford (Mayor, 
 
 Sfcof) . . . . 295 
 
 r— V. Welsh . . 303 
 
 ■ V. West Hartlepool Im- 
 provement Commissioners . 297 
 
 V. -Wigan (Mayor, &c. 
 
 of) . . . . . 56 
 
 —m V. Wilkinson . . 414 
 
 Attwood V. Banks . . . 241 
 
 — n;: V. Barham . . . 137 
 
 Auckland (Lord) v. Westminster 
 
 Local Board of Works . . 300 
 Austin V. Austin . . . -278 
 n V. St. 'Mary 'Lam'heth-( Ves- 
 try of) .... 298 
 
 V. Tynte . . . 398 
 
 Australian Auxiliary Steam "Clip- 
 per Company v. Mounsey . 352 
 Austria (Emperor of) v. I)ay and 
 'Kossuth . . . '5, '288 
 
 Ajmann v. Limd 
 Aylesbury (Earl) v. Morris 
 Aynsley v. plover . 
 
 FAO^ 
 
 149 
 
 50 
 
 212 
 
 Backhouse Vi Bonomi 
 
 . 216 
 
 Bagon v. Jones 
 
 . 142 
 
 — w. Spottiswoode 
 
 . 142 
 
 Bagshaw y. Eastern U^ionBailw. 
 
 Co. . ■ /■■.'. 
 Bailey i;. Birkenhead, Lancashire, 
 
 and Cheshire Junction Railw. 
 
 Co. 
 
 V. Hobson 
 
 329 
 
 339 
 IW 
 
 Baily v. Taylor 
 
 ;3^, 153, 154, 158 
 
 Bainbridge v. Hemingway . . 187 
 Baines v. Baker . . . 100 
 Baird v. Neil^on . . . 150 
 
 y. Rice .... 407 
 
 Baker v. White . . . W2 
 Balby -y. Wells • . . . 90 
 Baldwin v. Society for the Diffu- 
 sion of Useful Knowledge . 135 
 Ball v.. Oliver . . . .255 
 
 V: Storie . . . .18 
 
 Balls V. Strutt ... 45 
 
 BamEord v. Creasy . . . 36^ 
 Bank, &c. v. Rutland . . 19 
 Bankart v. Houghton . 108, 374 
 
 V. 'pennant .' 72,214 
 
 Ba^hard v. Brighton, Uckfield, 
 and Tunbridge Wells Railw. 
 Co. '. ' . '. . ■ . 
 Barefoot v. Pry 
 Barfield v. Kelly 
 -;rr: — r^ V. Nicholson 
 
 Bargate u.'Shortridge 
 Bargent v. Thomson. 
 
 354 
 . 370 
 . 162 
 162, 163 
 349, 387 
 94, 366 
 
 Barker v. North Staffordshire 
 Railw. Co. .... 
 
 Barnesley v. Powell . 
 
 Barnewall v. Barnewall 
 
 Bamsley Canal Company v. Twi- 
 bell . . 
 
 Barrett v. Blagrave . . • . 
 
 Barry j;. Barry . . . Ill, 
 h 
 
 316 
 255 
 265 
 
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TABLE OF CASES. 
 
 Barry v. Donnellan . 
 
 V. Stevens 
 
 Bartlett v. Salmon . 
 Bassett v. Bassett . 
 Batdielor v. Blake . 
 Bateman v. Boynton 
 
 V. Eamsey. 
 
 V. Willoe . 
 
 V. Brothers. 
 
 Bath (Lord) v. Sherwin 
 Bathtirst v. Murray . 
 Baxendale v. West Midland 
 
 way Co. 
 Baxter v. Comhe 
 
 V. West 
 
 Baylis v. Grout 
 Beadel v. Perry- 
 Beard V. Turner 
 Beardmer v. London and 
 
 Western Eailw, Co. 
 Beavdmore v. Tredwell 
 Beasley v. D'Arcy . 
 Beatty v. Beatty 
 ■;;. Kurtz 
 
 Beauchamp v. Great 
 Eailw. Co. . 
 
 V. Winn 
 
 Beaufort (Duke) v. Glynn 
 V. Patrick 
 
 Beck V. Dean. 
 
 Beckford v. Kemble ... 12 
 
 Bedford and Camhridge Eailw. 
 
 Co. 0. Stanley . . .321 
 Beer v. Ward . . . .283 
 Beere v. Cavendish . . . 368 
 Beeston v. Marriott . . . 388 
 Belli;. Bird . . . .241 
 
 V. Hull and Selby Eailw. Co. 356 
 
 V. O'Eeilly . . ,229 
 
 V. Walker . . .156 
 
 V. Whitehead . . .158 
 
 Benfield v. Solomons 
 Bentinck ti. Willink. . . 17 
 Berkeley v. Dicker . . . 240 
 Berndtson v. Strang. . 202, 246 
 Best V. Drake. . . 63 
 
 Bethuae v. Wilkins. . . 219 
 Belts V. Gallais . . 152 
 
 Eail- 
 
 59 
 392 
 383 
 119 
 281 
 261 
 
 44 
 387 
 128 
 370 
 278 
 
 319 
 
 146 
 234 
 282 
 211 
 181 
 
 North 
 
 . 335 
 . 105 
 
 228, 270 
 . 118 
 
 306, 307 
 Western 
 
 . 340 
 . 39 
 . 376 
 
 348, 367 
 . 360 
 
 PAGE 
 
 Betts V. Menzies . , . 147 
 
 V. Thompson ... 78 
 
 V. Wi'linott . 145, 150, 152 
 
 Bevan v. Lewis . . • 238 
 Bewick v. Whitfield . . 126 
 
 Beyfos i;. Bullock . . . 242 
 Beynon v. Cook . . 49, 50 
 
 Bickett V. Morris ... 66 
 Bickford v. Skewes . , .31 
 
 Bidder v. Croydon. Local Board of 
 Health . . . . .105 
 
 V. Trinidad Petroleum Co. 183 
 
 Biddulph V. St. George's, Hanover 
 
 Square .... 105 
 Bidlake v. Arundel . . . 191 
 Biggs V. Head. . . .283 
 Bill V. Sierra Nevada and Lake 
 
 Water Mining Co. . . 23 
 
 Billage v. Southee . 41, 187, 383 
 
 Billing V. Southee . 41, 187, 383 
 
 Binney v. Hammersmith and City 
 
 Eailw. Co. . . . . 313 
 
 Binney's Case. ... 36 
 Birch V. Corbin . . . 351 
 
 V. Corbyn . . .351 
 
 Birch- Wolfe v. Biich . . 117 
 
 Bird V. Lake .... 91 
 Birkbeck v. Paget . , , 183 
 
 Birley v. Constables of Chorley- 
 
 upon-Medlock . . . 298 
 
 Birmingham u. Tuite . . 396 
 
 Biscoe V. Great Eastern Eailw. 
 
 Co 
 
 Bishop V. Church 
 
 V. Scott 
 
 Bissell V. Bozman . 
 Black y. Bowman 
 
 V. Murray 
 
 Blackett v. Bates 
 Blackford v. Hawkins 
 Blackwell v. Crabb . 
 
 V. Eedman 
 
 Blad V. Bamfield ... 
 Blake v. White 
 
 V. Blake 
 
 Blakemore v. Glamorganshire 
 
 Canal Navigation Co. . 
 Blanchard v. Hill . 
 
 334 
 230 
 
 56 
 244 
 378 
 157 
 140 
 137 
 171 
 400 
 
 15 
 
 384 
 
 7 
 
 57 
 169 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 Blest V. Brown 
 
 Blomfield v. Eyre . 
 
 Bloxam v. Metropolitan Eailw. 
 
 Co. . 
 Blundell v. Gladstone 
 Boardman v. Mostyn 
 Bolton v. Bull 
 Bonafous v. Eytot . 
 Bond V. Hays . 
 Bonnett v. Sadler 
 Booth V. Bank of England 
 V. Leycester . 
 
 Bosanquet v. Dasliwood 
 Bosley v. Susquehanna, &c. 
 Bostock V. North Staffordshire 
 
 Eailw. Co. . 
 Boughton V. Boughton 
 Boultbee v. Stubbs '. 
 Bovill V. Crate 
 Bowes V. Pemie 
 Bowmaker v. Moore 
 Bowman v. Taylor . 
 Bowser v. Colby 
 Bracebridge v. Buckley 
 Brackenbury v. Brackenbury 
 Bradburn v. Morris . 
 Bradbury v. Beeton . 
 V. Dickens 
 
 408 
 279 
 
 342 
 39§ 
 365 
 146 
 250 
 
 49 
 137 
 351 
 
 12 
 
 48,49 
 
 348 
 
 Bradley v. Millar 
 
 V. Norton . 
 
 Braham v. Bustard . 
 Bramwell v. Halcomb 
 Brand v. Mitson 
 Brandon v. Barlow . 
 Bray «, Fogarty 
 
 V. Hine .... 245 
 
 Brenan v. Preston . 15, 200, 390 
 
 Brereton v. Tushey ... 92 
 Brett V. Bast India and, London 
 
 Shipping Company . 136, 357 
 Brieheno w. Ttorp . . .283 
 Bricknel v. Stamford . . 398 
 Bridges V. Stephens . . .114 
 Bridson v. MoAlpine . . 143 
 
 Briggs-w. (Earl of) Oxford . 112 
 
 Brinsley, Ex parte J 
 Buchan, Ex parte ) 
 Bristow Vi Whitmore . 198, 190 
 
 . 358 
 
 . 118 
 
 . 407 
 
 . 146 
 
 . 258 
 
 . 406 
 
 . 150 
 
 . 95 
 
 . 94 
 
 . 185 
 
 . 57 
 
 . 171 
 
 . 280 
 
 . 385 
 
 . 172 
 173, 179 
 27, 158 
 
 . 286 
 
 . 247 
 
 British.Bquitable Insurance Corri- 
 pany v. Great Western Eailw. 
 
 Go 379 
 
 Broadbent v. Imperial Gaslight 
 
 Company . . 32, 107, 108 
 
 Brook V. Evans . . . 220 
 
 V. Skinner . . . 287 
 
 Brooks V. Diaz . . .218 
 
 V. Eeynolds . . . 404 
 
 Broughton v. Pitchford . .' 61 
 Broun v. Kennedy . . . 282 
 Brown ■«. Brown . . 22, 273 
 
 V. Gugy . . .100 
 
 V. NewaU . . . 363 
 
 V. Tanner . . . 196 
 
 Browne v. Freeman . . . 179 
 
 V. Eoberts ... 11 
 
 V. Marsh . . . 186 
 
 : V. Monmouthshire Eailw. 
 
 and Canal Company . 308,343 
 
 V. Warner. . . . 137 
 
 Browning v. Morris . . 48, 49 
 
 Brunnenmeyer v. Buhre . . 302 
 Brunton v. Neale . . . 405 
 Brutton v. Parish of St. George's, 
 
 Hanover Square . . . 300 
 Bryson v. Whitehead . . 225 
 Bubb V. Telvertoa . . . 123 
 ^ — V. Yelverton. Ex parte 
 
 Hastings .... 123 
 Bucple.uch (Dukj of) v. Wake- 
 field 73 
 
 Buckingham v. Buckingham . 24 
 Buckland v. Hall ... 83 
 Bulkley v. Wilford ... 43 
 Bunbury v. Buhbury . . 12, 14 
 Burden v. Stein ... 35 
 Burges v. Lamb . . . H5 
 Burgees v. Burgess . . 174, 18] 
 
 V. Hill . . . 179 
 
 Burke v. Prior . . 95, 375 
 
 Buries V. Popplewell . 287, 403 
 
 Burpee v. Smith ... 9 
 Burrett v. Stockton and Darling- 
 ton Co. ... . 344 
 
 Bush V. Trowbridge Waterworks 
 
 Co 348 
 
 Bute (IMarquis) v. Stuart . . 13 
 b 2 
 
 Digitized by Microsoft® 
 
TABLE OP CASES. 
 
 Butler V. Burlesen . . . 694 
 
 Butt i». Imperial Gaslight and 
 
 ■Ooke Company . . . . 210 
 
 Butterworth v. Robinson . . 156 
 
 V. "Walker . . 133 
 
 Butts V. Matthews . . , 132 
 
 Buxton V. James . , , 159 
 
 Byron (Lord) v. Dugdale .. .. 166 
 
 -c. 
 
 (Gadell v. Stewart 
 Cage V, Cassidy 
 Cailland v. Estwiok 
 iCaird v. Campbell 
 Caimcross v. Lorimer 
 Calcraft v. Thompson 
 
 181 
 
 268 
 
 244 
 
 €0 
 
 38 
 
 208, 209, 210 
 
 -261 
 
 .Caldwell v. Vanvlissengen 51, 144, 264 
 
 Caledonian Bail w. Co. w. Spr-ot . 325 
 
 • — V. Belhaven 
 
 (Lord) 326 
 
 — V. Greenock 
 
 and Wemyss Bay Eailw.-^o. . 
 
 I Caledonian Bail w. Co. and Glas- 
 gow G. and 0. Eailw. Co. v. 
 Sprot 
 
 -Campbell i;. Allgood 
 
 V. Scott . 
 
 V. Thompson 
 
 Campbell's Trustees v. Campbell 
 
 Cane «, Yanderburgh, 
 
 Canham v. Jones 
 
 ■ Cannon v. Trask 
 
 Oapps V. Norwich and Spalding 
 Eailw. Co. . 
 
 Garden v. Butler 
 
 Cardiff (Mayor, &c.) v. 
 Waterworks Company 
 
 Gardinsall v. Molyneaux . 
 
 Carew v. Carew 
 
 • V. Cooper 
 
 Carleu v. Drury 
 
 Carlisle v. South Eastern Eailw. 
 Ca , 
 
 .Ca^rnan v. Bowles 
 
 Carnochan v. Norwich and Spald- 
 ing Eailw. Co. 
 
 .Carpenter t;.,Gw,ynn 
 
 325 
 123 
 161 
 196 
 72 
 112 
 243 
 330 
 
 . 315 
 
 . 250 
 Cardiff 
 
 27, 347 
 
 . 304 
 
 . 119 
 
 . 248 
 
 , 238 
 
 342 
 ■156 
 
 314 
 218 
 
 PAGE 
 
 Carpenter v. Heriot . . . 194 
 Carroll v. O'Connor . . .260 
 Carron Ipob Company v. Maclaren 
 
 10,11 
 Carter v. Cropley . . . 303 
 — — V. Great Eastern Eailw. 
 
 Co 324 
 
 — v. Palmer . . .282 
 
 -^ V. Williams . . .89 
 
 Cartier v. Carlisle . . . 178 
 Gary (12) . . . .191 
 
 Case V. Midland Eailw. Go. . 72 
 eastern V. Cook . 17,-21, 59, 198 
 Castendieck v. De Burgh .. . 344 
 Catching v. Terrell . . .218 
 Causton v. City Of&ces Company 375 
 Cawdor (Lord) v. Lewis . . 393 
 Central Eailroad and Banking 
 
 Company v. Mitchel . . 7 
 
 Centreville, &c. o. •Barnett . 218 
 
 Chaliev. Pickering . 398, 410 
 
 Chamberlyne v. Dummer . . 116 
 Chaplin v. North Western Eailw. 
 
 «o. . ."^ . . .319 
 Chapman v. Duncombe . . 130 
 Chappell u. Cox . . .237 
 
 V. Davidson 163, 169, 162, 
 
 165 
 
 v.Vmiay . . 163,163 
 
 Chappie V. Mahon ... 49 
 Charlton v. Newcastle and Car- 
 lisle Eailw. Co. and North 
 Eastern Eailw. Co. . 326, 331 
 Chedworth (Lord) v. Edwards . 184 
 Ohesman v. Nainby . . . 230 
 
 Chesterfield (Earl of) v. Janssen 41, 48, 
 189, 141 
 Child V. Douglas . .. 87, 88, 89 
 
 V. Maan .... 397 
 
 Ohilds V. Horr . . . 394 
 
 Chinnook v. Sainsbury . , 204 
 Chipping Sodbury, Grammar 
 
 School of . • . 252, 263 
 Cholmondeley (Earl) -u. Lord 
 
 Clinton . . . 225^ 284 
 
 Ohowne v. Baylis . . . 289 
 Christie v. Craig . . . 198 
 
 Chuck V. Cremer . . , 259 
 
 Digitized by Microsoft® 
 
TABLE OP CASES. 
 
 XXI 
 
 
 FAQB 
 
 Churchman v. Tunstall . 
 
 . 72 
 
 Churton v. Douglas . 
 
 . 232 
 
 V. Prewen . 
 
 . 305 
 
 City of London Brewery Com- 
 pany V. Conservators of River 
 Thames .... 50 
 
 City of London Brewery Com- 
 pany V. Tennant . . .213 
 
 Clack V. White . . .102 
 
 Clave Hall (Master, &c. of) v. 
 Harding . . . 33,40 
 
 Clarence Railw. Co. v. Great 
 North of England, Clarence, 
 and HartlepoolJunction Eailw. 
 
 Co. . 
 Clark j;. Adie . 
 
 V. Chappie 
 
 V. Pergusson 
 
 V. Preeman 
 
 . 323 
 . 150 
 . 16 
 
 144, 147 
 . 289 
 
 Clarke, Hx parte . . .281 
 
 V. Batters . . .201 
 
 V. Clark . . .208 
 
 V. Cobley . . .192 
 
 V. Earl Ormonde . . 405 
 
 V. Manchester, Sheffield, 
 
 and Lincolnshire Eailw. Co. . 333 
 
 V. Manning 
 
 V. Paddington Vestry 
 
 V. Price 
 
 V. Seton 
 
 42, 388 
 . 297 
 . 135 
 191, 251 
 . 187 
 . 102 
 . 36 
 . 159 
 39,98 
 . 398 
 
 Clayton v. Lyle 
 Cleeve v. Mahany . 
 Clegg V. Edmonson . 
 Clement v. Maddick 
 Clements v. Welles . 
 Clerke v. Moore 
 Clothworkers' Company v. Con- 
 servators of River Thames . 50 
 Clover V. Hoyden . . . 290 
 Clowes V. Beck » . . .110 
 
 ' V. Staffordshire Potteries 
 
 Waterworks Company . . 347 
 Clum V. Brewer . . . 144 
 Coates V. Clarence Railw. Co. . 334 
 Cockell V. Bacon . . . 127 
 Cockerell v. Cholmeley . 39, 251 
 Coeks V. Chandler . . . 174 
 V. Eomaiue . . . 212 
 
 PAGB 
 
 Coffin V. Coffin . . .124 
 Cohen V. Wilkinson . . 327 
 
 Coker, Ex pwrte. He Blake . 241 
 
 Colburn v. Simms . 161, 163, 251 
 Cole V. Burgess . . . 404 
 Coleman v. West Hartlepool 
 
 Eailw. Co. . 
 Coks V. Pilkington . 
 
 V. Sims 
 
 Colladay v. Baird . 
 Collard v. Allison . 
 Collins Company v. Brown 
 
 V. Cohen 
 
 V. Reeves 
 
 V. Walter 
 
 . 220 
 30, 364 
 . 373 
 . 175 
 . 142 
 
 3,172 
 
 Collins V. Lamport 
 V. Plumb 
 
 3,166* 
 . 180 
 . 194, 195 
 , . 93 
 Co-unties 
 
 . 329' 
 
 Colman w. Eastern 
 
 Eailw. Co.. . 
 Colonial Life Assuranee Com- 
 pany a. Home and Colonial 
 Life Assurance Company 164, 169' 
 Colt V. Comwell . . ,244 
 
 Com. V. Bank, &o. . 296, 350 
 
 V. Rush . . . .217 
 
 Commercial . Union Assurance 
 
 Company v. Lister 
 Commissioners of Sewers II. Glasse 
 Congleton (Mayor of) v. Pattison 
 Connor v. Connor 
 Const V. Harris 
 
 Constantein v. Blache 
 Good V. Cood . 
 Cook V. Catchpole 
 
 V. Ehodes 
 
 V. Eosslyn 
 
 V. Thomas 
 
 V. Winford 
 
 Cooke V. Chilcott 
 
 V. Forbes 
 
 V'. Lamotte 
 
 V. Whalley 
 
 Cooper V. Evans 
 
 V. Gordon 
 
 V. Hatton 
 
 . — V. Hubbuck 
 
 V. Joel 
 
 — • — - V. Wyatt 
 
 379- 
 
 79 
 
 90 
 
 . 28© 
 
 . 239 
 
 381, 384, 386 
 . 10 
 . 234 
 . 284 
 . 396 
 . 244 
 . 120 
 58, 90 
 
 . 103, 107 
 . 47 
 . 119 
 
 267, 384, 385 
 . 254 
 . 228 
 . 217 
 33, 386 
 . 95 
 
 Digitized by Microsoft® 
 
TABLE OP CASES. 
 
 PAGE 
 
 Coorg (Eajah of) v. E. I. Co. . 10 
 Cope V. Evans . . . 166 
 
 Coppinger v.. Gubbins . 115, 116 
 Corley v. Corley . . .271 
 Cornelius v. Post . . . 112 
 
 Corning v. Troy, &c. Factory . 67 
 Cornwall v. Hawkins . . 233 
 Corwin v. Daly . . . 173 
 Cory u. Yarmouth, and Norwich 
 
 Eailw. Co 53, 72 
 
 Cosens V. Bognor Eailw. Co. . 321 
 Costello V. Martin . . .396 
 Coster V. Griswold . . . 385 
 Costerton v, Oosterton . . 405 
 Cotching V. Bassett . . . 211 
 Cotesworth V. Stephens . .20,26 
 Cother V. Midland Eailw. Co. . 32 
 Cotter V. Metropolitan Eailw. Co. 312 
 Cotton V. Catlyn . . .189 
 
 V. ©illard . . .170 
 
 Cottrel V. Moody ... 18 
 Coulson V. White . . .218 
 Coventry v. Gladstone . 197, 246 
 V. London, Brighton, 
 
 and South Coast Eailw. Co. . 
 Cowtan V. Williams. ' 
 • Cox V. Cos .... 
 — — V. Land and Water Journal 
 
 Co 
 
 Crawford v. Fisher . 
 
 Cremome (Lord) v. Bruen 
 
 Creuze v. Hunter 
 
 Crews V. Burcham . 
 
 Croft «. Day . . . 167, 
 
 V. Goldsmid . 
 
 V. Graham 
 
 V. Haw .... 
 
 V. Lumley 
 
 Crofts V. Middleton . 
 Oromford Canal Co. v. Cutts 
 Cromford and High Peak Eailw. 
 
 Co. V. Stockport, Disley, and 
 
 Whaley Bridge Eailw. Co. , 
 Crompton v. Lea 
 Crook V. Corporation of Seaford . 
 Crookes v. Better 
 Crookshanks v. Turner 
 Crosby v. Middleton 
 
 341 
 263 
 222 
 
 161 
 395 
 400 
 277 
 399 
 171 
 
 85 
 188 
 238 
 
 95 
 364 
 318 
 
 341 
 75 
 38 
 
 161 
 46 
 
 192 
 
 Croskey v. European and American 
 
 Steam Shipping Company 
 Crossley v. Dixon 
 
 . V. Lightowler 67, 106, 
 
 Crowder v. Tinkler . 
 Cruikshanks ». Eobarts 
 Crump V. Lambert . . 100, 
 Crutwell V. Lye 
 Cryer v. Goodhand . 
 Cuddon V. Morley . 
 Cunliffei). Whalley . 
 Curre v. Bowyer 
 Curriers' Company v. Oorbett . 
 Curtis u. Cutts . . 142, 
 
 - V. Marquis of Buckingham 
 
 Custance v. Cunningham 
 
 391 
 150 
 108 
 101 
 14 
 103 
 232 
 411 
 110 
 300 
 405 
 208 
 146 
 138 
 184 
 
 D. 
 
 Dabbs V. Nugent 
 
 Dadson v. East Kent Eailw. Co, 
 
 Dakin v. Whimper . 
 
 Dalgllsh V. Jarvie . 
 
 Dalmer v. Dashwood 
 
 Dalton V. Furness . 
 
 Daly V. Archbishop of Dublin . 
 
 V. Kelly .... 
 
 Dance v. Goldingham 
 
 Daniel v. Anderson . 
 
 Darby v. Baines 
 
 Dare Valley Eailw. Co. v. Ehys . 
 
 — , In re . 
 
 Darley v. Nicholson 
 Darnley (Earl) v. London, Chat- 
 ham, and Dover Eailw. Co. . 320 
 Daugars v. Eivaz . . . 303 
 Davenport v. City Bank . . 382 
 
 V. Eichard . . 147 
 
 v.. Eylands . 151, 152 
 
 Davies v. Clough . . . 283 
 
 V. Evans . . . 369 
 
 V. Price . . 99, 204 
 
 V. Sear . > . . . 217 
 
 V. Stainbank . .. . 381 
 
 f. Williams . ;. . 375 
 
 Davis V. Curtis . . . 191 
 V. Eyton ... 95 
 
 226 
 
 , 313 
 
 247 
 
 29,60 
 
 132 
 
 397 
 
 304 
 
 138 
 
 139 
 
 214 
 
 20 
 
 260 
 
 400 
 
 398 
 
 Digitized by Microsoft® 
 
TABLE OP CASES. 
 
 Davis V. Leo .... 
 ' V. Marlborough (pake of) 
 
 J!. Uphill . . 
 
 DaVson v. Lawes . 
 ■ V. Prince . 
 
 7- V. Sadler • . 
 
 r- V. Thompson 
 
 FAQE 
 
 115 
 248, 
 249 
 121 
 408 
 380 
 258 
 278 
 115 
 ,304 
 60 
 18 
 190 
 185 
 316 
 10 
 187 
 160 
 277 
 
 DayreU v. Champneys 
 Dean v. Bennett . . 254. 
 Dease v. Plunkett 
 Deaver v. EUer 
 Debenham v. Ox 
 De Costa v. Scandret 
 Deere v. Guest 
 Dehon v. Foster 
 Delafield v. Illinois 
 Delf V. Delamotte 
 De Manneville v. De Manneville 
 De Mattos v. Gibson 39, 135, 195, 196 
 Denew v. Stock ... 21 
 Dennett v. Dennett . . . 121 
 Denny v. Lord Enniskillen . 190 
 Dent V. Auction Mart Com- 
 pany . . . 102, 209 
 
 V. Bennett ... 47 
 
 Denton v. Denton . . . 113 
 Desborougb v. Harris . . 397 
 Descarlett'iJ.- Dennett . . 85 
 Dettmar v. Metropolitan and Pro- 
 vincial Bank . . . 383 
 Devey v. Thornton. . . 285 
 
 Devon and Somerset Eailw. Co., 
 In re . . ... .346 
 
 Dew Vt Hamilton . . . 268 
 Dewhurst i).Wrigley . 70, 107 
 De Winton v. Brecon (Mayor 
 &c. of) . . . . 406 
 
 Dickens v. Lee . . . 153 
 Dickenson v. The Grand Junction 
 
 Canal Company . . . 136 
 Dietriohsen v. Cabburn . 61, 332 
 Dill «. Wabash, &c. . .346 
 
 Dimes 'W. Steinberg . . . . 255 
 
 Dinwiddle ■«. Bailey. . . 393 
 Dixon V. Edach . . .291 
 Dohson V. Laud . . .128 
 V. Lyall . . .203 
 
 Dodd V. Salisbury and Yeovil 
 
 Eailw. Co.- . 
 Doe V. Beavan 
 
 V. Carter 
 
 V. Clarke 
 
 V. David 
 
 V. Hawkes ' 
 
 V. Wyadham 
 
 Don Diego de Acuna v. Bingley 
 Doo V. Croydon Eailw. Go. 
 V. London and Croydon 
 
 Eailw. Co. . 
 Doran v. Carroll 
 Dorson v. Hunter . 
 Dougherty v. Walker 
 Dover Harbour (Warden, &o. 
 
 of) V. South Eastern Eailw. 
 
 Co 55, 
 
 Dowling V. Betjemann 
 Downes V. Jackson . 
 Downshire (Marquis) v. Lord 
 
 Sandys 
 Drake v. Lyons 
 V. West 
 
 Drewe v. Hanson 
 Druiffv. Parker 
 Drummond v. Atti-Geu. 
 
 V. Pigou 
 
 Drury v. Hooke 
 
 V. Molins 
 
 Dublin (Corporation of)' 
 
 Gen. . 
 Du Boulay v. Du Boulay 
 Dudgeon v. Thomson 
 Dugdale v. Eobertson 
 Duncan v. M'Calmont 
 Dun combe ir. Greenacre 
 Dungey v. Angove 
 Dunham v. Izett 
 Dunlap V. Stetson 
 Dunn V. Bryan 
 
 V. Cox . 
 
 V. Dunn 
 
 . 269 
 
 Dunsany (Lord) i». Plunkett . 250 
 Durell V. Pritchard 
 
 Durham and Sunderland 
 
 Co. V. Wawn 
 Dutt w 
 
 313 
 95 
 95 
 95 
 95 
 95 
 95 
 289 
 317 
 
 323 
 111 
 
 78 
 285 
 
 354 
 
 182 
 
 24 
 
 122 
 382 
 63 
 137 
 382 
 45, 302 
 129, 398, 405 
 . 190 
 . 92 
 Att.- 
 
 . 295 
 
 . 174 
 
 . 146 
 
 73, 247 
 
 20, 21, 203 
 
 17, 262, 409 
 
 262 
 
 339 
 
 39 
 
 59 
 
 398 
 
 58, 210 
 Eailw. 
 
 . 316 
 . 113 
 
 Digitized by Microsoft® 
 
ixiv 
 
 TABLE OP CASES. 
 
 tiuval V. Terry 
 Dyer v. Tymewell 
 Dyke v. Tayldr 
 
 390, 191, 250 
 . 186 
 . 94 
 
 E. 
 
 Eachus V. Moss 
 Eaden v. Firth 
 Eardley Vi Granville 
 Eaxlei). Holt . 
 East India Co. v. Vincent 
 Eastwood V. Levers . 
 Bchliff V. Baldwin .■ 
 Edelsten v. Edelstfin 
 
 • V. Vick 
 
 46 
 103 
 81 
 188 
 37 
 87 
 138 
 173,176,177, 
 179 
 .■ 173, 174 
 18, 413 
 
 Edgecmnbe v. Carpenter 
 Edinburgh and Grlasgow Eailw. 
 
 Co. V. Campbell . . .338 
 Edmonds v. Plews . . .282 
 Edmunds v. Bird . , . 285 
 Edwards v. The' Grand Junctioii 
 
 Railw. Co. . . . . 309 
 Edwards-Wood v. Baldwin . 194 
 Elborough i;. Ayi'es. . 17,18 
 
 Ellicott V. The United States . 265 
 Elliot V. Bro-irn . . . 367 
 Elliott V. Kempstoh . . i395 
 
 V. Merriman . . 37 
 
 ■ V. North Eastern Eailw. 
 
 Co. . . . 74,' 246, 325 
 
 V. Turner ... 96 
 
 Ellis V. Earl Grey . . . 299 
 
 illiison V. Ehison . . . 266 
 Elmhirst v. Spencer . 68, 106 
 
 Else, il'aj parte, In re Joiner . 282 
 Elweil V. Orowther - . .68 
 Ely (Dean, &c. of) v. Warren . 82 
 England (Balnk of) '0. Booth . 351 
 
 '■ V. M&fifati . 351 
 
 w. Parsons ; 351 
 
 England v. Curling . . . 234 
 Ennor v. Barwell . . 67, 68 
 
 Enos V. Hunter . . ; 7 
 Erie, &c., v. Walker . . 31 
 Errington v. Aynesley . . 385 
 Bspey V. Lake . . . 383 
 
 Etheringtta v. Wilson . . 253 
 
 European and^ Royal Mail Com-' 
 pany v. Boyal Mail Steam 
 
 Packet Company . . . 196 
 
 Eustace v. Lloyd . . - 7 
 
 Evan y. Avon (Corporation) . 293 
 Evans «;. Bremridge . 26, 408 
 
 —^ — V. Coventry . . . 343 
 
 Evelyn v. Lewis . . . 365 
 Evitt «,■ Pride . . .225 
 Exeter and Crediiton Eailw. Co. 
 
 V. Bullen . . > . 353 
 Eyton if. Denbigh, Euthin,i and 
 
 Corwfen Eailw. Co. . . 339 
 
 Fanning v. Dunham ^ 
 
 Farebrother v. Prattent '. 
 
 = — V, Welchman 
 
 — ^ V. Wodehouse 
 
 4d' 
 
 263 
 27 
 376 
 177 
 404 
 26 
 
 Farina li. Silverloqk 
 
 Farlow v. Wilson . 
 
 Farquharson ?/. Pitcher 
 
 Farrant v. Lovell 93, 116, 118, 120, 130 
 
 Featherstone v. Ccioke 
 
 — . : : V. Cooper 
 
 Fechter v. Montgojnery 
 
 Pelkin v. Herbert (Lord) 
 
 Fells V. Bead . 
 
 Fennelly v. Eanscelot 
 
 Fernihaugh v. Leader 
 
 Ferrandi;. Mayor, &c. of Bradford 
 
 Ffookes V. South- Western Eailw. 
 Co 
 
 Field V. Beaumont . 
 
 Fielden v. Fielden . 
 
 V. Lancashire and York- 
 shire Eailw. Co. . 
 
 — V. Slater 
 
 . 352 
 . 258 
 . 280 
 51," 214 
 . 182 
 
 17 
 844 
 348 
 
 342 
 
 43 
 
 404 
 
 55 
 98 
 Filder v. London,, Brighton, and 
 
 South Coast Eailw. Co. . ; 354 
 Finch V. Underwood ; . 89 
 
 Fingal (Earl) v. Blafce . . 118 
 Fisher v. Apollinaris Co; . 290 
 
 Fishmongers' Company v. Beres- 
 
 ford . . ; . .127 
 V: East 
 
 India Company . . 208, 210 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 Flamang's fiase . . . 219 
 Flanagan v. Great Western Eailw. 
 Co 321 
 
 Flavell V. Harrison . 
 Fleming v. Newton 
 
 : — V. Snook . 
 
 Flight V. Chambre . 
 ^^^ — y. Thomas . 
 Flood V. Nprth-Eastern 
 
 165) 181 
 . 224 
 . &2 
 . 16 
 . 213 
 
 Eailw. 
 
 331 
 274 
 
 324 
 218 
 227 
 308 
 295 
 202 
 165 
 
 79 
 180 
 115 
 
 330 
 
 Co. . 
 Flower v. Flower . 
 
 V. Lctidon, BrightoB, and 
 
 South Coast Eailw. Co. 
 Floyd V. Turner 
 Fluker v. Taylor 
 Foley V. Wontner . 
 Folkstone Corp. v. Woodward . 
 FoUett u. Delany . 
 Foot v.'LeA. . . . 164, 
 Forbes v. Ecclesiastical Commis- 
 sioners .... 
 Ford V. Poster . . 165, 
 
 V. TyJi'tB ; 
 
 Foreign Bondholders (Corporation 
 of) V. Pastor ... 
 Forrest v. Manchester, Sheffield, 
 and Lincolnshire Eailw; Co. . 
 Foss V. Harbottle i . 352, 362 
 Fothergill u. Eowland . . 204 
 Fowler v. Bott ... 93 
 Foxi'..Dellestable . . . 151 
 
 Vi Jones . . . 151 
 
 V. Purssell . . . 211 
 
 V. Scard . . .233 
 
 Foxoraftv. Wood . . . 245 
 Foxwell V. Bostock . . . 148 
 Frampton v. Framptoa . . 274 
 Francis v. Spittle . . . 235 
 Franco v. Bolton . . .193 
 Frank V; Basnett . . .398 
 Franks v. Weaver . . . 175 
 Fraser v. Kershaw . . 235, 240 
 
 V. WhaUey . . .311 
 
 V. Witt ' i . .246 
 
 Freeman v; Tottenham and Hamp- 
 
 stead Junction Eailw. Co. . 344 
 French v. Connelly . . . 378 
 
 
 PAGE 
 
 Frewin v. Lewis 
 
 . 25 
 
 Ftiend *. Burgh 
 
 . 191 
 
 Frietas v. Dos Santos 
 
 228, 229 
 
 Frieze v. Chapin 
 
 . 243 
 
 Frogley v. Earl Lovelacte 
 
 . 183 
 
 Fry V. Fry . 
 
 . 271 
 
 Fuller V. Ingram 
 
 . 22 
 
 Galev; Abtot. . . .218 
 Galloway Vi City of London 
 
 (Mst^Or, &c.) . . 294, 359 
 Gardiner (Assignees of) v. Shan- 
 non , . . . .394 
 Gfardner v. Broadbent . i 147 
 
 :- V. Charing Cross Eailw. 
 
 Go 312 
 
 V. Freemanfcle . . 301 
 
 — ■- V. Garrett . . . 404 
 
 — ^ V. Lachlan . . . 20'3 
 
 ~ V. London, Chatham, and 
 
 Dover Eailw. Co. . . . 84 
 
 :- V. M'Cutcheon . . 236 
 
 Garle v. Robinson . . . . 869 
 Garlick v. M' Arthur . . 387 
 
 Garrard v. Lauderdale . 46, 266 
 Garrett v. Banstead and Epsom 
 Downs Eailw. Co. 54, 139, 346 
 
 : V. Salisbury and Dorset 
 
 Junction Eailw.. Co. . 260, 346 
 Gkirstiu V. Asplin ; . . 388 
 Garth /y. Cotton 117, 120, 121, 126, 
 
 127 
 Gartside v. Otitram . . . 225 
 
 u. WhaUey . . 311 
 
 Gasooyne v. Chandler . . 21 
 Gaunt V. Fynney . . 102, 103 
 
 V. Taylor . . . 387 
 
 Gearns v. Baker . . - 184 
 Geary w Norton . . . 150 
 Gee u. Pritchard . . 223,291 
 Geiger v. Green . . . 135 
 General Iron Screw Collier Com- 
 pany «. Schurmaii^s\ . . 200 
 Georges, &o. v. Detmold- . . 112 
 Gibson v. Bgerton . j . . 191 
 
 Digitized by Microsoft® 
 
TABLE OP CASES. 
 
 Gibson v. Head . . . 255 
 
 -.•U.Smith , . . 76,111 
 
 Gifford V. New Jersey . . 354 
 
 GilWI; V. Cooper . . . 344 
 
 Giles y. London, Chatham, and 
 
 Dover Eailw. Cq. . 
 Gilpin u. Lady Southampton 
 Gingell v. Home 
 Gladstone v. Musurus Bey 
 
 V. Ottoman Bank 
 
 Glaholm v. Barker . 
 
 . 313 
 
 . 287 
 . 255 
 6,289 
 . 4,6 
 . 200 
 . 203 
 . 298 
 
 137, 236 
 . 10 
 
 228, 381 
 . 170 
 . 371 
 
 409> 410 
 
 Glascott V. Lang 
 Glass V. Marshall . 
 Glassington v. Thwaites 
 Glenn v. Fowler 
 Glennie v. Imri 
 Glenny v. Smith 
 Glover v. Eeynolds . 
 Goddard v. Carlisle . 
 Goldsmid v. Tunbridge Wells Im- 
 provement Commissioners 100, 101 
 Gompertz v. Pooley ... 26 
 Goodman v. De Beauvoir . . 344 
 
 : — u. Kine. . . .116 
 
 Goodson V. Richardson . . 64 
 Goodyear v. Day . . . 144 
 Gordon v. Cheltenham Eailw. Co. 37 
 Gort (Yisoonntess) v. Clark 211, 212 
 Goucher v. Clayton . . . 150 
 Gough V. Pratt . . .256 
 Gourlay v. Duke of Somerset . 95 
 Gower v. Eyre . . . 114 
 
 Grafham v. Tumbull . . 400 
 Grafton v. Griffin . . .370 
 Graham v. Birkenhead, Lanca- 
 shire, and. Cheshire Junction 
 
 Eailw. Co 327 
 
 r V. Johnson . . . 194 
 
 Granard v. Dunkin . . 223 
 
 Grand. Junction Canal Company 
 
 V. Shugar .... 69 
 Grant V. Grant . . 190, 251 
 Gravely v. Barnard . . . 233 
 Gray v. Knox . . .368 
 
 V. Liverpool and Bury Eailw. 
 
 Co 317 
 
 Great Northern Eailw. Co. v. 
 Eastern Counties Eailw. Co. . 328 
 
 Great Northern Eailw. Co. W.Lan- 
 cashire andTorkshire Eailw. Co. 315 
 
 r v, Manchester, 
 
 Sheffield, and • Lincolnshire 
 Eailw. Co, . . 99,136,332 
 
 Great North of Englaind, Cla- 
 rence, and Hartlepool Eailw. 
 Co. V. Clarence Eailw. Co. . 335 
 
 Greatrex v. Greatrex . . 238 
 
 Great Western EaUw. Co. v. Ben- 
 nett, ... . . .74 
 
 V. Birmingham 
 
 and Oxford Junction Eailw. 
 
 Co 29, 54 
 
 V. Cripps . . 40 
 
 Greech v. Grain ... 52 
 Green v. Bridges . . .96 
 
 J). England (Bank of). . 351 
 
 ■!;. Low. , . . . 365 
 
 V. Nixon , . 405, 415 
 
 u. Wynn ... . 407 
 
 . 94 
 
 Greenaway «. Adams 
 
 Greene v. West Cheshire Eailw. 
 
 Co 133 
 
 Greenfield v.. Edwards . . 45 
 Greenhalgh v. Manchester and 
 
 Birmingham Eailw. Co. . 315 
 
 Greenhill v. Isle of Wight (New- 
 port Junction) Eailw. Co. 204, 323 
 Greenalade v. Dare . . , 304 
 Gregg V. Coates . . , 93 
 Gregory v. Patchett . . 352, 353 , 
 
 V. Wilson . . 94, 96, 365 
 
 Grenfell v. The Deans and Canons 
 
 of Windsor ... . 248, 249 
 Grey de Wilton (Lord) v. Saxon 92 
 Grey v. Ohio, &c. ... 35 
 Griffin, v. Deveuille . . 41, 189 
 
 . 365 
 
 Griffith V. Edwards . 
 
 V. Cambrian Eailway 
 
 Co 338 
 
 V. Eeynolds . . 269 
 
 Grosvenor v. Cook . _ . .191 
 Grover and Baker Sowing Ma- 
 chine Company v. Millard . 150 
 Guage«. Lockwood . . . 94 
 Guernsey (Lord) v. Eodbridges . 37 
 Guion V. Trask . , . 200 
 
 Digitized by Microsoft® 
 
TABLE OP CASES. 
 
 xxvu 
 
 GuUick V. Tremlett . 
 Grutteridge v. Fletcher 
 Gyles V. Wilcox 
 
 H. 
 
 PAGE 
 
 34 
 131 
 155 
 
 Hadley v. London Bank of Scot- 
 . land ... , . '. 
 Haigh. V. Jagger 
 D. Waterman. 
 
 Haines v. Taylor 
 
 Hale V. Thomas 
 
 Halford v. Gillow . 
 
 Hall V. Barrows 
 
 V. Box . 
 
 V. Conder 
 
 V. Hall . . 
 
 V. M'Leod 
 
 Hallett V. Bousfield. 
 
 Halliwell v. Phillips 
 
 Halloran v. Donal . . 
 
 Haly n. Barry. 
 
 V. Goodson 
 
 HamiLv. Stokes . . . 
 
 Hamilton (Duke) v. Graham 
 
 ^ V. Hector - . 275, 
 
 V. Marks . 
 
 — ^ — . — V. Smith . 
 
 Hammond v. Hall . 
 
 Hamp 1). Jones 
 
 Hampson v. Price's Patent Candle 
 Company .... 
 
 Hampton v. Hodges. 
 
 Hankey v. Morley • . 
 
 V. Vernon . 
 
 Hanmer v. Chance . 
 
 Hannam v. South London Water- 
 works Company . 
 
 Hanson v. Gardiner . 
 
 Harcourt v. Eamshottom . 
 
 Hardcastle ■;;. Shafto 
 
 Harding v. Wickham 
 
 Hardinge v. Webster 
 
 Hardy v. Martin 
 
 Hare v> Groves 
 
 «.. London and North- West- 
 em Eailw. Co. 
 
 '. 139 
 . Ill 
 
 . 368 
 29, 100 
 . 250 
 . 240 
 . 176 
 . 85 
 . 150 
 . 238 
 . 218 
 . 198 
 114, 122 
 21, 198 
 . 403 
 
 21 
 ,43 
 
 73 
 276 
 395 
 416 
 
 70 
 270- 
 
 330 
 116 
 
 47 
 
 397 
 
 82 
 
 . 372 
 
 . 219 
 
 . 257 
 
 . 371 
 
 . 399 
 
 359, 405, 415 
 
 . 191 
 
 . 93 
 
 330 
 
 PACE 
 
 Harman v. Jones ... 29 
 Harmer v. Plane . . ■ . 144 
 Harold, Hx parte. He Meade . 241 
 Harper ■!/. Pearson . . . 233 
 Harrington v. Du Ohatel . . 51 
 Harris u. Collett . . 51,397 
 
 V. Ekins . • . .116 
 
 Harrison v. The Anderston Foun- 
 dry Company . . . 148 
 
 .- V. Gardner . . . 232 
 
 •- V. Nettleship . . 131 
 
 V. Taylor. . 176, 179 
 
 Hart V. Herwig ... 8 
 Hartlepool Gras and Water Co. v. 
 
 West Hartlepool Harbour and 
 
 Bailw. Co. . 
 Hartridge, Ex parte, London; 
 
 Chatham, and Dover Eailw. 
 
 Co., JEx parte 
 Hartz V. Schrader • . 
 Hastings (Corporation of) v. Ivall 
 Hatch v. Hatch 
 Hathesing u.Laing . 
 Hattersley v. Shelburne (Earl) . 
 Havens v. Middleton 
 Hawes v. James 
 Hawkins v. Blachford . 223, 237 
 Hayman v. Governors of Eugby 
 
 School . . . .253 
 Hays V. Ward • . . .268 
 Hayward v. Lowndes . . 298 
 Heath v. Maydew . . 133, 211 
 Heathcote v. North Staffordshire 
 
 Eailw. Co. . ■ . . 204, 310 
 Hedges v. Metropolitan- Eailw. 
 
 Co 323 
 
 Hele V. Hele - . . .191 
 Helling v. Lumley ... 83 
 Helms V: M'Fadden. . . 44 
 Helsham v. Bamett. . . 50 
 Hemphill v. M'Kenna . . 60 
 Henderson v. Henderson . . 14 
 
 V. Lacon . . . 361 
 
 Henry v. Great Northern Eailw, 
 
 Co 
 
 Heriot v, Nicholas . ' . 
 Heriot's Hospital (Feoffees oQ •"■ 
 
 Gibson .... 
 
 34 
 
 310 
 
 237 
 
 70 
 
 47 
 
 197 
 
 326 
 
 96 
 
 138 
 
 342 
 197 
 
 335 
 
 Digitized by Microsoft® 
 
TABLE QP CASES. 
 
 Herrick v', 
 
 Co. . 
 Hervey v. Fitzpatuiek 
 V, Smith 
 
 Grand Trunk Railw. 
 
 . 338 
 
 6 
 
 39, 217 
 
 Herz V. Union Bank of London 59, 206 
 
 Hewlett V. Hewlett . 
 Hext V. Gill . 
 Higgintotham v,- Hawkins 
 Hill V. Barclay 
 — — V. Caillovel 
 — •" V. ReardoH 
 ^^- V. Spencer . 
 
 V. Thompson . 
 
 vi. Turner 
 
 Hillier v. Parkinson 
 Hills v. Croll . 
 
 if. Evans 
 
 Hilton V. Earl Granville . 
 V. Woods 
 
 Hindley v. Emery . 
 
 Hine v. Lart .... 
 
 Hippesley v. Spencer 
 
 Hirst V. Peirse 
 
 Hoare y. Bremhridge 
 
 — ^ V. Dresser 
 
 V. Wilson 
 
 Hodges V. Welsh 
 
 Hodgkinsoa v. National Live 
 
 , 412 
 73 
 
 121 
 95 
 
 191 
 25 
 
 193 
 
 146 
 9 
 
 371 
 , 135 
 , 146 
 31,76 
 , 76 
 , 97 
 , 167 
 , 130 
 . 392 
 . 16 
 . 389 
 . 79 
 . 163 
 
 Stock Insurance Co. 
 Hodgson V. Duce 
 
 V. Murray . 
 
 V. Earl Powis 
 
 Hodson V. Coppard ^ 
 
 Hogg w. Kirby 
 
 Vi Scott . 
 
 Holbrook v. Shairpey 
 
 Holden v. Weekes . 
 
 Holdemess v. Lamport 
 
 Hole i/. Thomas 
 
 Holies V. Wyse 
 
 HoUoway v. HoUoway 
 
 Holmes v. Eastern Counties Railw. 
 Co 34 
 
 Holroyd v. Marshall . 139, 243 
 
 Holtzapffel v. Baker . . 93 
 
 Holyoakev. Shrewsbury and Bir- 
 mingham Railw. Co. . . 32. 
 
 Eoman if. Mpore . , . . 366 
 
 . 39 
 . 219 
 61, 188 
 53, 327 
 91, 233 
 . 224 
 . 159 
 . 49 
 . IBS 
 . 201 
 118, 119 
 . 250 
 . 175 
 
 Hood V. Asfon 
 
 — ~ V. North-Basteim 
 
 Go. . ... 
 Hookham v'. Pottage 
 Hoole V. Gireait Western Bailw, 
 
 Co 
 
 Hooper v. Brodrick . 
 Hoops ij'. Earl Kingston . 
 Hope V. Carnegie 
 V. Hope 
 
 FA'OB 
 
 . 189 
 Railw. 
 . 331, 335. 
 
 . 236 
 
 . 3'42 
 . 136 
 
 . 4oa 
 
 . 14 
 
 15, 275 
 
 V. The International Finan- 
 
 eial' Society. . . . 297 
 
 Hopkins v. Newton . . .46 
 
 Hopkinson v. Lord Burghley 181, 182 
 - - • v: Marc|.ms of Exeter 301 
 
 Horn vi Kilkenny and Great 
 Southern and Western Railw. 
 Co 
 
 Home V. London and North Wes- 
 tern Bailw. Co. . 
 
 -■ Vi Thompson.- 
 
 Horsley v. Cox 
 Hoskins v. Featherstone 
 
 V. Holland . 
 
 Hotten V. Arthur . 
 Houlditch v.- Donegal 
 
 V. Nias . 
 
 V. Wallace 
 
 Howitt V. Hall 
 Howley v. Cook 
 ^ubbard v. Martin . 
 Hudson Vi Temple . 
 Hughes V. D'Arcy . 
 V. Metropolitan 
 
 Co. w 
 Huguenin ■«. Baseley 
 Hull and Hornsea Railw. Co., Be 
 Humphrey v. Nowland 
 Humphreys v. Harrisoa 
 
 ■ V. Humphreys 
 
 I). Rigby 
 
 Hun V. Freeman 
 Hunt V. Brown 
 
 Vi Hunt 
 
 V. Peake 
 
 Hunter v. Belcher 
 Huzzey v. Field 
 Hyde a. Holmes. 
 
 363. 
 
 Railw. 
 
 22, 273, 
 
 415 
 
 319 
 363 
 244 
 126 
 379 
 156 
 8,35 
 380 
 
 35 
 160 
 
 49 
 
 3d 
 S77 
 
 65 
 
 94 
 47 
 84 
 370 
 130 
 385 
 400 
 47 
 116 
 274 
 216 
 392, 
 72 
 281 
 
 Digitized by Microsoft® 
 
TABHE OP CASES. 
 
 XXIX 
 
 llMngworth v. Manchester and 
 
 Leeds E^ailw. Co. . .. , 336 
 Imperial Gaslight and Coke Co. 
 IB. aroadhent . 32, 107, 108, 260 
 
 V. West 
 
 London Junction Gas Co. and 
 'Great Western Bail w. Co. . 297 
 Inchbald v. Barrington . .103 
 
 — ^ V. Eobinson ,. . 103 
 
 Inge V. Birmingham, Wolver- 
 hampton, and Stour Valley 
 
 Kailw. Co 314 
 
 Ingilby v. Shafto . . .368 
 Ingram «. Stiff . . 161,162 
 Ireland (Bank of) v. Beresford . 406 
 Irwin V. Dixion . . . 207 
 Isaac V. Humpage . . . 387 
 Isaacson v. Thompson . . 35 
 Iseuburg v. East India House 
 
 Estate Co. . . . 57, 210 
 Isle of Wight Perry Co., Be . 84 
 Ivimey v. Stocker . . .67 
 
 J. 
 
 Jack u. Tease 
 Jackman v. Mitchell 
 Jackson i;. Cator 
 
 V. Newcastle (Duke) 
 
 V. Sedgwick 
 
 V. Shanks . 
 
 -^ u. Stanhope 
 
 Jacob V. Priedhurg . 
 Jacomh v. Knight .. 
 James-v. Biou 
 — ^^ V. Dixon 
 
 V. Ellis 
 
 V. Hales 
 
 V. James 
 
 Jamieson v. Teague 
 Jarrold v. Houlstou 
 Jarvis v. Chandler . 
 Jay V. Eichardaon . 
 Jeffery v. Bowles 
 Jefferys v. Boosey . 
 Jegon v. Vivian 
 
 156, 
 
 . 23 
 
 . 266 
 111, 118 
 . 205 
 . 239 
 . 187 
 . 243 
 . 20 
 57, 103 
 , 127 
 . 218 
 .. 248 
 . 127 
 . 225 
 . 221 
 157, 159 
 , 386 
 , 89 
 . 155 
 . 163 
 75,76 
 
 .rAGB 
 
 Jenkins, Be . . . . 304 
 
 ~ V. Gething . . . 183 
 
 Jenny v. Bell .... 242 
 fevis V. Bruton . . . 192 
 
 -■ -I/. White ... 61 
 
 Jew V. Wood .... 396 
 Job V. Bannister . . 94, 95 
 
 Johnson v. Atkinson . . 262 
 
 V. Peterson . . 272 
 
 — ^ — - V. Shrewsbury and Bir- 
 mingham Eailw. Co. , . 331 
 
 —■ ^ V. Vail . . . 273 
 
 r- V. Wyatt . . 34, 38, 207 
 
 Johnstone v. Hall ... 88 
 Jones V. Chappell . . . 109 
 — — V. Frost . . .255 
 
 V. Geddes , . 11, 13 
 
 V. Hughes . . .364 
 
 V. Jones . . . 255 
 
 V. Lane . 83, 185, 188 
 
 V. Moore . . . 230 
 
 — V. Eoyal Canal Co, . . 104 
 
 V. Stansted, &c,, Eailw. Co. 337 
 
 Jordan- v. Money . . .30 
 Justices (The) &c. v. The Grif- 
 fin, &c. '. . . . 219 
 
 Kean ■«. Johnson 
 
 Keane v. Athenry and (Ennis 
 
 Junction Eailw. iCo. 
 Kearn&t;. Leaf 
 Kearsley v. Cole 
 Kcat V. Allen . 
 
 Keates .v. Holywell Eailw. -Co. 
 Keating v. Sparrow . 
 Keene v. Bristol 
 Eekewich v. Marker 
 Kelk v.. Pearson 
 Kell V. Nokes 
 Kelly V. Hooper 
 
 V. Hutton 
 
 V. Wyman 
 
 ,Kemp V, London and Brighton 
 
 ®ailw. Co. , 
 Kemp V. Tucker 
 Kempson v. Ashboo 
 
 ■296 
 
 338 
 
 184 
 
 268 
 
 190 
 
 334 
 
 . 95 
 
 . 296 
 
 . 112 
 
 206, 210 
 
 . 133 
 
 156, 158 
 
 . 171 
 
 . 159 
 
 336 
 16 
 
 48 
 
 Digitized by Microsoft® 
 
TABLE OP CASES. 
 
 Kennedy v. Cassillis (Earl of) 
 ■ V. Evans . 
 
 Kenny, v. Browne . 
 Kensington v. White 
 Kent V. Pickering . 
 
 V. Eicards 
 
 Kenyon v. Clarke . . . 244 
 
 Keogh,?;. Collins . . . 116 
 
 Kemaghan v. Williams . . 329 
 
 Kemot V. Potter . . . 135 
 Kerr v. Mayor, &c., of Preston . 291 
 
 Kerrison v. Sparrow . . 298 
 
 Kettleby v. Kettleby . . 191 
 
 Key v., Bradstaw . . . 276 
 
 &C. V. Munsell . . . 244 
 
 Kidson v. Dilworth . . 402 
 
 Kilvington v. Parker . . 39 
 
 Kimpton v. Eve . . 92, 118 
 
 Kinder v. Jones . . . 220 
 
 King V. Chaplin . . .374 
 
 1), Hamlet . . .413 
 
 V, King . . . .184 
 
 V. Martin . . . 240 
 
 of Spain V. HuUett . . 5 
 
 V. Eossett . . .229 
 
 V.Smith . .. .130 
 
 of Two Sicilies v. Wilcox . 5 
 
 V. Wycombe Eailw. Co. . 323 
 
 Kingham v. Maisey . . 18 
 King's Lynn (Mayor, &c., of) v. 
 
 Pemberton . 
 Kingsfgrd v. Swinford 
 Kirby v- Barton 
 Kirwane v. Blake . . 
 Kitohin v. Kitchen . 
 Knight V. Bulkeley . 
 
 . V. Burgess . . 
 
 V 
 
 PAGE 
 
 . 14 
 
 . 407 
 193, 194 
 
 . 389 
 287, 403 
 
 . 386 
 
 Knill V. Cbadwick 
 Knye v. Moore 
 
 V. Moseley 
 
 Kyle V. Jeffreys 
 
 L. 
 
 Labouchere v. Dawson 
 Lacon v. Liffen 
 Laing v. Zeden 
 
 . 71 
 26, 394 
 . 388 
 . 250 
 . 409 
 . 248 
 134, 265 
 125, 126 
 . 186 
 . 193 
 . 193 
 . 163 
 
 . 232 
 
 195, 202 
 
 16, 197 
 
 Laird v. Birkenhead Eailw. Co. 38, 217, 
 321, 362 
 
 Lamb v. Anderson . 
 V. North London 
 
 386 
 
 Eailw. 
 . 308, 
 Northern Eailw. of 
 
 314 
 
 Co. . 
 Lambert v. 
 
 Buenos Ayres Co. . . 329 
 
 Lamotte v. Cooke ... 47 
 Lancaster and Carlisle Eailw. Co. 
 
 V. North Vestem Eailw. Co. . 23 
 
 Lane v. Newdegate ... 71 
 Langford v. Brighton, Lewes, and 
 
 Hastings Eailw.. Co. . . . 318 
 Langham v. Great Northern 
 
 Eailw. Co 318 
 
 Langridge v. Payne . . 369 
 
 Langsdale v. Bonton . . 218 
 
 Langton v. Horton . . . 395 
 
 Lansing v. Eddy . . . 387 
 
 Larabrie v. Browne . . . 396 
 
 Lariyifere v. Morgan - . . 4 
 
 Law V. Law .... 190 
 
 Lawes /y. Purcer . . . . 150 
 Lawley v. Walden . . .369 
 
 Lawience v. Smith . . . 154 
 
 Lawson v. Morgan . . . 236 
 
 Leake v. Beckett . . . 117 
 
 Leary y. Eose . . . 367 
 Leather Cloth Co. v. American 
 
 Leather Cloth Co. 166, 169, 170, 176 
 177, 178 
 
 : V. Bressey . 
 
 ■ : ; : V. Hirschfield 
 
 ■ ; V. Lorsont . 
 
 Leather v. Simpson . 
 
 Le Blanch v^ Granger 
 
 Le Clero v. Greene, . 
 
 Lee V. Haley . . . 
 
 V. Lancashire and Yorkshire 
 
 373 
 180 
 231 
 187 
 197 
 1& 
 171, 174, 181 
 
 Eailw. Co. . 
 
 V. Milner . 
 
 V. Park . 
 
 Leech v. Schweder 
 Leeds v. Cheetham . 
 
 (Duke of) V. Amherst 
 
 Lees V, Waring 
 Legard v. Johnson . 
 
 . 34& 
 . 352 
 287, 388, 403 
 86, 206 
 93, 270 
 . 116 
 . 406 
 . 22 
 84, 339 
 
 Digitized by Microsoft® 
 
TABLE OP CASES. 
 
 fAGE 
 
 Lehmann v. Mc Arthur . . 36 
 
 Leighton v. Leighton . . 369 
 Letton.u. Goodden. ... 72 
 
 Lewis V. Billing . . . 344 
 
 Bowles' Case . . .120 
 
 V. Chapman . . . 159 
 
 V, Cooper . . . 344 
 
 v. Fothergill . . .75,76 
 
 V. Pullarton . . .158 
 
 V. Nangle . . .192 
 
 V. Smith . . .283 
 
 Assurance 
 
 of 
 
 Scotland v. 
 
 Life 
 
 McBlane 
 
 Ligo V. Smith 
 
 Lillywhite v. Trimmer 
 
 Lindsey (Earl of) v. Great North- 
 em Eailw. Co. 
 
 Lingard v. Hibherston 
 
 Little V. Price 
 
 Littleton v. Blackburn 
 
 Litton's Case .... 
 
 Liverpool (Mayor, &c. of) v. Chor- 
 ley Waterworks Co. 
 
 Livingston v, Hubbs 
 
 Lockwood V. London and North 
 Western Eailw. Co. ■ . 
 
 Logan V. Earl Courtown . 327, 328 
 
 London and Mediterranean Bank 
 V. Styutton .... 
 
 ^.and Northwestern Eailw. 
 
 379 
 119 
 108 
 
 309 
 394 
 386 
 301 
 81 
 
 357 
 
 44 
 
 344 
 
 11 
 
 Lord V. Governor and Company 
 
 Co. V. Ackroyd 
 
 Lancashire and Yorkshire 
 Eail^. Co. . 
 and Provincial Law As- 
 
 325 
 
 218 
 
 surance Society v. London and 
 Provincial Joint Stock Life In- 
 surance Co.. . . . .166 
 
 and Southwestern Eailw. 
 
 Co. V. Blaekmore. . . . 340, 341 
 
 (Mayor of) v. Hedger . 93 
 
 Londonderry and. Enniskillen 
 
 Eailw. Co. V. Leishman . . 259 
 Lonergan v. Stourton . . 247 
 Long V. Beard . . .72 
 
 V. Cross .... 35 
 
 V. Storie . . .305 
 
 Lord Advocate v. Hamilton . 66 
 
 of Copper Miners . 
 
 V. Wormleightor^ 
 
 Lovat V. Eanelagh . 
 Love V. Baker 
 Low v.. Innes . 
 Lowe V. Joliffe 
 Lowndes v. Settle . . 
 V. Buncombe 
 
 352, 362 
 . 404 
 
 95, 365, 366 
 . 21 
 
 36, 140, 212 
 . 287 
 
 64, 110, 218 
 . 155 
 . 248 
 . 381 
 . 377 
 . 248 
 . 282 
 . 189 
 . 183 
 
 Lloyd V. Cheetham . 
 
 V. Clark 
 
 V. CoUett 
 
 <B. Eagle 
 
 , Ex parte 
 
 V. Gurdon 
 
 — — — V. Loaring 
 
 V. London, Chatham, and 
 
 Dover Eailw. Co. . 97, 310, 311 
 
 Llynvi Company v. Brogden . 76 
 Lucas V. Williams . . . 412 
 Lumley v. Desborough . . 42 
 
 : V. Wagner 99, 135, 136, 332 
 
 Lumsden v. Milwaukee . . 296 
 Lupton V. White . . .269 
 Luscombe v. Steer . . . 100 
 Lushington «. Boldero . .123 
 Lycett V. Stafford and Uttoxeter 
 
 Eailw. Co 338 
 
 Lyde u. Eastern Bengal Eailw. 
 
 Co 354 
 
 Lyon V. Fishmongers' Company. 65 
 
 V. Home . . . .47 
 
 V. Wilkinson . . . Ill 
 
 M. 
 
 McAndrew v. Bassett . 176, 179 
 
 M'Arthur u. Kelly . . . 218 
 
 McCalmont v. Eankin . . 202 
 
 Macaulay v. Shackell . . 291 
 
 M'Clurg's, &o. . . 231,232 
 
 McCreai;. Holdsworth . . 164 
 
 M'Curdy v. Martin . . .132 
 
 V. Noak . . .102 
 
 McDougal V. Jersey Imperial 
 
 Hotel Company . . . 355 
 
 M'Fadden v. Jenkins . 411 
 
 Mack V. Better . . .158 
 
 Digitized by Microsoft® 
 
xjxu 
 
 TABLE OP CASES. 
 
 Mackay v. Bluckett, . . 310 
 Macfcey v. Scottish, &c. Assure 
 
 ance Society ^ . • . ,53 
 ■Mackenna v. Pa^kes . . 239 
 
 Mackenzie v. Mackenzie 381, 384, 386 
 Maclaren v. Carron Company .. "6, 19 
 
 -. V. Stainton . 6, 11, 19 
 
 McLean v. McKay ... 90 
 McNeiJl V. Williams . . 153 
 Macon, &c. v. Parl^er . . 347 
 McBae v. Holdswortli . 19, 164 
 M-acrae V. Smith . . - 404 
 M'Roherts v. Washbume . . 72 
 Maden v. Veevers . . . 272 
 M^nay u. The Mines Eoyal Co. 27 
 Maguire v. O'Reilly . . . 240 
 Maher «;. iGorman . . . -285 
 Mair v. Himalaya^ Tea Company 134, 
 ■269,357 
 Maitland v. Backhouse . . 409 
 
 — : V. Irving . . . 383 
 
 Malcolm v. Scott ... 61 
 Malmesbury.Eailw. Co. .v. Budd 257 
 Man v- Eicketts ... 37 
 Manchester, Sheffield, and Lin- 
 colnshire Railw. Co. ru. Great 
 Northern Eailw. Go. . , 314 
 Manderson v. Commercial, &c. . 296 
 Mangles V. Dixon . . . 198 
 
 ■ — - V. Grand Collier Dock Co. 52 
 
 Manly v. Hawkins , . . 132 
 Manners (Lord) v. .Sutton, 86, 206 
 Maijser v. Northern and Eastern 
 
 Counties Railw. Co. . . 334 
 Mansfield v. Shaw . . . 285 
 
 Mapleson v. Bentham . . 99 
 March v. Eastern, &c. . , S54 
 Mare v. Sandford 189, 381, 884, 386 
 Marker v. Marker .. 114, 122, 124 
 Marlborough (Duke of) v. St. 
 
 John , . . . . . 424 
 
 Mamie. & Co.. n. Hodgson . . ^386 
 
 Marriage v. Skiggs . . . 388 
 
 Marriott v. Anchor. Reversionary 
 
 Company .... 196 
 
 V. Tarpley . . .306 
 
 Marsh v. Keating . . . 289 
 Marshall w. Watson. , ., 237 
 
 Martin v. Coggan 
 — :: — V. Douglas 
 
 V. Headon 
 
 ■ — v. Porter 
 
 — : V. Powning 
 
 ■^rr-. — -V. Wright 
 
 115, 116 
 . 102 
 . 209 
 .75, 76 
 . 241 
 . 155 
 
 Mason v. London, -Chatham, and 
 Dever Eailw. Co. .. . . 312 
 
 — : 31. Mason ... 93 
 
 — ■- — .v. Murray . . 163,251 
 Mather, Expa/rte . . . 186 
 Mathias v. Wilts and Berks Canal 
 
 Navigation Com. . . . 297 
 Matthaei v. Galitzin . . f 
 
 Matthewson v. Stockdale . . 154 
 Maunsell •». Midland-Great West- 
 em (of Ireland) -Eailw. Co. 326, 355 
 Maw V. TJlyatt . . 270, 370 
 Mawman v. Tegg . . . . 163 
 Maxwell V. Somerton . . 162 
 
 -^ V. Ward ... ,30 
 
 May V. Haiman . . 385 
 
 ^— V. O'Neill . . . 282 
 Mayhew v. Maxwell . . 280 
 
 Maythom ■!;. Palmer. . . 54 
 Meade, 7m re. . . . 278 
 
 Mechanics, &c. v. Lynn . . 84 
 Meek v. <3arter . 96, 373 
 
 Melhuish v. Milton . . . 255 
 Mellish !v. MeUish . . . 409 
 Menier v. Hooper's Telegraph 
 
 Co 355 
 
 Mercers' Company v. Auction 
 
 Mart Company . . . 209 
 Merchant Tradiag Company -v. 
 
 Banner .... 204 
 Merest v. Murray . . . 128 
 Merritt, Matter of . . .281 
 Messageries Imperiales Co. v. 
 
 Baines ... 39, 197 
 Metropolitan Eailw. Co. v. Wood- 
 
 • house 324 
 
 Meux «. Smith . . 16, 245 
 Me:iborough (Earl ot)'v. Bower . 75 
 MeyneU v. Surtees . . 322, 376 
 Michael v. Pripp . . . 197 
 
 Micklethwaite v. Micklethwaite . \29 
 Midland EaiUv. Co. v. Ambergate, 
 
 Digitized by Microsoft® 
 
TABLE OP CASES. 
 
 XSXUl 
 
 Nottingham, and Boston, and 
 Eastern Junction Bailw. Co. 
 
 Midland Great Western Eailw. of 
 Ireland v. Johnson 
 
 Miles V. Tobin 
 
 Milhau V. Sharp 
 
 Millard v. Harvey . 
 
 Miller v. Cook 
 
 V. Washburn 
 
 337 
 
 39 
 213 
 102 
 276 
 49 
 18 
 302 
 164 
 191 
 
 Milligan v. Mitchell 
 Millington v. Fox . 
 Mills, Ex parte 
 
 V. Northern Eailw. of Buenos 
 
 Ayres Co. . . . 343, 353 
 Milner v. Gk)olden . 
 V. Georgia, &c. 
 
 Milward v. Eedditch Local Board 
 Mississippi, &c. v. Ward . 
 Mitchell V. Hayne . 
 
 V. Steward 
 
 Mocher v. Reed 
 Moet V. Couston 
 Mold V. Wheatcroft . 
 Money v. Jordan 
 Montague v. Flookton 
 Moore v. Blake 
 
 V. Eerrell 
 
 V. Gamble * 
 
 411 
 
 260 
 
 300 
 
 . 101 
 
 . 269 
 
 . 85 
 
 . 392 
 
 176, 179 
 
 37, 315 
 
 . 30 
 
 . 280 
 
 . 35 
 
 . 218 
 
 . 386 
 
 . 306 
 
 4 
 
 Moreland ■;;. Richardson . 
 
 Morgan v. Lariviere 
 
 Morison v. Moat 138, 224, 225, 236, 243 
 
 Morris v. Ashbee . . . 159 
 
 V, Bradburn ... 57 
 
 V. Colman . . . 230 
 
 V. Grant ... 58 
 
 W.Kelly . . .163 
 
 V. Lessees of Ld. Berkeley . 207 
 
 V. McCuUoch. . . 48 
 
 V. Morris . ' . . 124 
 
 Moses V. Lewis . . . 369 
 Mostyhi;. Burdekin. . . 383 
 Motley V. Downman . 164, 165 
 
 Mott V. Shoolbred . . .109 
 Mouchet V. Great Western Eailw. 
 
 Co. • . ■ . . . .324 
 Moxoii V. Payne ... 48 
 Mozley v. Alston . . 352, 362 
 MulhoUand «. Killen . . 70 
 
 PAQE 
 
 Mulkem v. Ward . , .290 
 MuUen v. Homer . . . 412 
 Mulville V. Fallon ... 28 
 Mtmns V. Isle of Wight Eailw. 
 
 Co 337,338 
 
 Munro v. Wivenhoe and Bright- 
 
 lingsea Eailw. Go. . 56, 346 
 
 Munt V. Shrewsbury and Chester 
 
 Eailw. Co 328 
 
 Muiley V. Greenham . . 255 
 
 Murphy v. Glass . . . 230 
 Murray v, Benbow . . . 154 
 Myers v. United, &c., Guarantee 
 
 Life Assurance Company • . 397 
 Mylne v. Dickinson . . 399 
 
 N. 
 
 Nabob of the Carnatic v. East 
 India Company ... 5 
 
 Natal Land and Colonization Co. 
 V. Good . . . .399 
 
 National Provincial Bank of Eng- 
 land V. Thomas . 
 
 Neale v. Cripps 
 
 V. Neale 
 
 . 272 
 . Ill 
 . 140 
 . 414 
 145, 151 
 . 256 
 
 Neate v. Denman . 
 Neilson v. Betts 
 Nelson v. Armstrong 
 
 ■w. Barter . . .396 
 
 (Lord) V. Salisbury and 
 
 Dorset Junction Eailw. Co. . 337 
 Neville v. Wilkinson . . 44 
 Newall V. Wilson . . . 147 
 Newark, &c. v. Elmer . .296 
 Newberry v. James . . 135 
 
 ,7m re . . .278 
 
 Newby v. Harrison ... 82 
 Newdigate v. Newdigate . . 122 
 Newell V. Townshend . . 237 
 Newlands v. Paynter . . 272 
 Newman v. Franco . . . 400 
 
 V. Milner . . .186 
 
 New London v. Brainard . . 295 
 Newport v. Taylor ... 72 
 Newry and Enniskillen Eailw. 
 
 Co. V. Ulster Eailw. Co. . 400 
 
 Newsome v. Flowers . . 46, 302 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 Newtom). Hubback. . . 202 
 
 NichoUs V. Maynard . . 250 
 
 Nichols V. Roe . . . 258 
 
 Nicholson v. Hooper . • 36 
 
 v. Knapp . . • 304: 
 
 v.BevUl . . . 268 ' 
 
 Nicol V. Goodall . . • 20 
 Nokes V. Gibbon. . 96, 366, 372 
 
 Norbvtry (Earl) v. Kitcbin . 67 
 
 Norfolk Railw. Co. v. Bayes . 316 
 Norris V. Chambres . . 10, 12 
 
 —. V. Day . . . • 44 , 
 
 v.um. . ■ -102 
 
 North V. Gbeat Northern gailw. 
 Co. . . . . . .182 
 
 North British Eailw. Co. v. Tod 335 
 Northam Bridge and Boads (Pro- 
 prietors of the) V. London and 
 
 Southampton Eailw. Co. . 333 
 North Eastern BaUw. Co. v. Cros- 
 
 land 325 
 
 V. El- 
 
 Uott . . 74, 111, 216, 217, 325 
 North London Eailw. Co. v. Me- 
 tropolitan Board of Works . 297 
 
 Staffordshire Steel, Iron, 
 
 and Coal Company v. Ca,moys 
 (Lord) . . . .368 
 
 Union Eailw. Co. v. Bolton 
 
 and Preston Eailw. Co. . . 218 
 
 Norton v. Nicholas . . . 164 
 
 Norway v. Bowe . . . 110 
 
 Norwich Bailw. Co. v. Woodhouse 316 
 
 Noton V. Brooks . . . 150 
 
 Nottidge V. Prince ... 47 
 
 Nugent 11. Nugent . . . 281 
 
 ^fiTunn V. Fabian ... 83 
 
 Nntbrown v. Thornton . . 82 
 
 0. 
 
 Oakeley v. Ramsey ... 10 
 Oakford v. European and Ameri- 
 can Steam Shipping Co. . 381 
 Oohsenbein v. Papelier . . 16 
 O'Connor «. Spaight . . 228 
 O'Donel v. Browne ... 30 
 Ogilvie V. Currie . . . 361 
 
 O'Grady v. Orr 
 Oldaker v. Hunt 
 Oldfield V. Cobbett . 
 Oldham v. James 
 Ollendorff v. Black . 
 O'Mahony v. Dickson 
 O'Neil V. Browne . 
 Onslow v. ^^ 
 
 PASB 
 
 . 290 
 180, 296 
 . 411 
 . 137 
 28, 153 
 228, 387 
 . 387 
 92, 118 
 . 80 
 
 O'Eeilly, Ex parte . 
 Oriental Bank Corporation v. 
 
 Nicholson .... 396 
 
 V. Calrow 396 
 
 Ormonde (Marq. ojf) v. Kinnersley 123 
 
 Orr V. Dickinson . . . 200 
 
 V. Draper .... 180 
 
 Osbaldiston v. Simpson . . 256 
 
 Osbom V. Bank, &c. . . 187 
 
 Osborne v. Havers . . . 385 
 
 V. Williams . . 48 
 
 Owen V. Homan . . 35, 56 
 
 Oxford's (Earl of) Case . . 386 
 
 Page V. Bennett ... 96 
 Pain V. Coombb . . . 134 
 Palmer v. Dewitt . . .221 
 
 V. Hendrie^ . . . 374 
 
 . 101 
 
 V. Paul 
 
 Paris Chocolate Co. 
 
 Palace Co. . 
 Parker v. Taswell . 
 
 V. Whyte 
 
 Parkes v. Stevens . 
 Parr v. Att.-Gen. 
 
 V. BeU . 
 
 V. Jewell 
 
 Parratt v. Parratt 
 Parrish v. Stephens . 
 Parrott v. Palmer . 
 V. Shellard . 
 
 Crystal 
 
 Partridge v. Foster . 
 Patching v. Dubbins 
 Patent Type Founding Co. 
 
 Richard .... 149 
 Patrick v. Harrison . . . 187 
 Patterson v. Gas Light and Coke 
 
 Company .... 149 
 
 134 
 134 
 
 87 
 148 
 296 
 410 
 
 42 
 283 
 101 
 
 76 
 400 
 131 
 37,90 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 XXXV 
 
 PAOS 
 
 Pattison v. Gilford ... 59 
 Paxton V. Douglass . . . 287 
 Peacock v. Peacock . . . 235 
 Peaice D. Crutchfield . . 278 
 
 Pearse v. Green . . . 229 
 
 Pearl v. Deacon . . . 408 
 Pease v. Bennett . . . 242 
 Peatross v. McLaughlin . . 242 
 Peek V. Larsen . . . 198 
 
 •». Gumey . . 361,362 
 
 V. Matthews ... 98 
 
 ■». Payne . . .385 
 
 Peelu. . . .366 
 
 Peeler v. Barringer . . . 128 
 
 Pelham (Lord) v. Newcastle 
 (Duchess of) . . . 
 Pell V. Midland and South Wales 
 
 Eailw. Co 
 
 V. Northampton and Ban- 
 bury Junction Eailway Com- 
 pany .... 321, 337 
 
 V. Stepkens 
 
 Penedo (Baron) v. Johnson 
 Penn v. Bibby ^ 
 
 V. Pemie > . 
 
 V. Jack ) 
 
 281 
 
 337 
 
 129 
 
 289 
 
 152 
 
 Petre (Lord) v. Eastern Counties 
 Eailw. Co. . . . 309, 310 
 
 Pennell v. Boy 
 Penniall v. Harbome 
 Pennocku. Coe 
 
 Pentney u. Lynn Paving Com- 
 missioners . . . ' 
 People of Kent v. Kent . 
 V. New York 
 
 24 
 
 96 
 
 339 
 
 Pepper v. Foster 
 Perceval (Lord) v. Phipps 
 Perks V. Wycombe Eailw. Co, 
 Perry (The case of Captain) 
 
 V. Barker 
 
 V. McBwen 
 
 V. Shipway 
 
 V. Truefitt 
 
 V. Walker 
 
 Peruvian Eailways Company v. 
 
 Thames and Mersey Marine 
 
 Insurance Co. 
 Peto V. Brighton, Uckfield, and 
 
 Tunbridg6 Wells Eailw. Co. 
 
 38 
 . 18 
 . 296 
 . 404 
 . 181 
 . 314 
 . 220 
 129, 374 
 . 302 
 . 303 
 165, 167, 171 
 . 240 
 
 356 
 
 99, 
 
 135, 319 
 
 Phillips V. Purber 
 
 V. Hudson 
 
 V. Jones 
 
 - V. Worth 
 Philpot V. Hoare 
 Pickering v. Capetown Eailw. Co. 
 ■ V. Stephenson 
 
 Pidding v. How 
 Pidgeon v. Dalton . 
 Piercy v. Humphreys 
 ^-— V. Nowle 
 Piers V. Tinte 
 
 V. Piers . 
 
 Pigott V. J'Anson . 
 
 Piggott V. Stratton . 
 
 Pike V. Nicholas 
 
 Pilgrim v. Auction Mart Co. 
 
 Pilkington v. City of York 
 
 Pim V. Wilson 
 
 Pitcher v. Eigby 
 
 Pixley V. Huggins 
 
 Plant V. Stott 
 
 Piatt V. Button 
 
 Playfair v. Birmingham, Bristol, 
 
 and Thames Junction Eailw. 
 
 Co. . 
 Plimpton V. Malcolmson 
 
 V. Spiller . 
 
 Plympton v. Malcolmson 
 Pollard V. Clayton 
 Pollock V. Gilbert 
 ■ V. Lester 
 
 241 
 
 78 
 
 372 
 
 398 
 
 95 
 
 257 
 
 299 
 
 165 
 
 405 
 
 389 
 
 389 
 
 251 
 
 114 
 
 24 
 
 36,91 
 
 . 161 
 
 , 209 
 
 , 292 
 
 , 241 
 
 , 258 
 
 . 244 
 
 76 
 
 , 154 
 
 Poole's Case . 
 Poole V. Adams 
 
 V. Marsh 
 
 Pope V. Curl . 
 
 V. Duncannon (Lord) 
 
 Porrett v. Barnes 
 
 Portariington (Lord) v. Soulby 
 
 Portland (Duke of) v. Hill 
 Portsmouth (Earl of) v. Partridge 
 
 Potter V. Chapman . 
 Potteries, Shrewsbury, and North 
 Wales Eailw. Co. v. Minor . 
 e 2 
 
 347 
 148 
 
 54 
 147 
 
 35 
 386 
 107 
 192 
 
 93 
 369 
 181 
 259 
 364 
 
 10, 
 381 
 
 77 
 
 17, 
 18,52 
 , 304 
 
 346 
 
 Digitized by Microsoft® 
 
TABLE OP CASES. 
 
 FAGB 
 
 Potts «. Potts. . . .121 
 V. Warwick and Birming- 
 ham Canal Co. . . .84 
 Powell V. Allen . . .130 
 
 V. Lloyd . . .60 
 
 V. Thomas . . .367 
 
 V. Walworth . . 405 
 
 Powell Duffryn Company (The) 
 
 V. The Taff Vale Eailw. Co. . 56 
 Power V. Shiel . . .185 
 
 Powys V. Blagrave . . . 113 
 Poynder v. Great North. Rail. Co. 316 
 Pratt u. Keith . . .393 
 
 Price V. Assheton . . . 137 
 
 V. Evans . . .403 
 
 V. Ley - . . . .41 
 
 Price's Patent Candle Company v. 
 
 Banwen's Patent Candle Co. . 151 
 Prior V. Penpraze . . . 371 
 Procter v. Eobinson . . 274 
 
 Prosser v. Bank of England . 351 
 Prothero v. Phelps . . 26, 33, 376 
 Protheroe v. Foreman . . 387 
 Proud V. Bates ... 73 
 Prowett V. Mortimer . . 280 
 Prudential Assurance Company 
 V. Thomas .... 263 
 
 i;. 
 
 Knott . . . .290 
 
 Pugh V. Arton ... . 183 
 
 V. Vaughau . . . 364 
 
 Pulling V. London, Chatham, and 
 
 Dover Eailw. Co. . . . 313 
 Pulteney v. Sheltoa . . 92 
 
 V. Warren . 30, 251 
 
 Pulvertoft V. Pulvertoft . 247, 266 
 Purcell «. Walsh . . .115 
 Purcer v. Brain . . . 165 
 Pnsey Horn Case (The) . . 182 
 Pyke V. Northwood . 364, 377 
 
 Q. 
 
 Quarrier v. Colston . . . 401 
 Queen (The) v. Prosser . . 25 
 Queensberry {Duke of) v. Sheb- 
 
 beare . . . .222 
 
 Quinton v. Bristol (Mayor, &e.) 294 
 
 E. 
 
 E. V. Eobinson 
 Eaby Castle Case . 
 Eaggett V. Pindlater 
 Eamsden v. Jackson 
 
 95 
 114 
 180 
 
 287 
 
 V. Dyson and Thornton 270, 
 
 271 
 Eandall v. Thompson . . 259 
 Eanken v. East and West India 
 Docks and Birmingham Junc- 
 tion Eailw. Co. . . . 317 
 Eankin v. Harwood . . 402 
 
 V. Huskisson . . 136 
 
 Eaphael v. Thames Valley Eailw. 
 
 Co 320 
 
 Eatcliffe v. Winch ... 24 
 Eawden v. Shadwell 49, 193, 400 
 
 Eawson v. Samuel . . 229, 230 
 Eawstone v. Parr . . . 188 
 Eayne v. Benedict . . . 203 
 Eead v. Blunt . . . 132 
 
 V. Bowers . . . 236 
 
 Eeade v. Bentley . . . 279 
 
 Eedfield w. Middleton . . 56 
 Eedmond v. Goodall . . 363 
 
 Eees «. Pemie. . . . 256 
 Eeese Eiver Company, In re. 
 
 Smith's Case . . . 361 
 Reeve v. Parkins . . . 299 
 Renard v. Levinstein . 146, 148 
 Rendall v. Crystal Palace Co. . 356 
 Reynell «. Sprye . . .42,43 
 Reynolds v. Nelson . . . 376 
 
 V. Pitt ... 96 
 
 Eheam v. Smith . . . 360 
 
 Ehodes v. Buckland . . . 128 
 Rhymney Eailw. Co. v. Taff Vale 
 
 EailwayCo. . . ,333 
 
 Eiccard v. Prichard . . . 245 
 
 Richards v. Noble ., . .81 
 Richardson v. Ardley . .183 
 Richardson - Gardner v. Pree- 
 
 mantle .... 301 
 Riches v. Owen . . . 242 
 Eickman v. Johns . . . 339 
 Eidgway •;;. Sneyd . . . 372 
 
 Eigby V. Great Western Railw. 
 Co 88,333 
 
 Digitized by Microsoft® 
 
TABLE OP CASES. 
 
 XXXTU 
 
 Ripon (Earl of) v. Hobart. . 100 
 Biver Dunn Navigation Co. v. 
 
 Nortli Midland Eailw. Co. . 354 
 Boberts, In re. Fowler v. Eoberts 403 
 
 V. Haddocks . . 16 
 
 Eobertson ■;;. Wrexham, Mold, 
 
 &c., Railw. Co. . . .346 
 Bobinson W.Bell. . . . 411 
 
 V. Brocklebank . . 383 
 
 ■ V. Byron ... 75 
 
 V. Chartered Mercantile 
 
 Bank of India, . London, and 
 China . . . .349 
 
 V. Cox . . . 186 
 
 V. Grave . . . 215 
 
 V. Hedger . . .131 
 
 V. Litton . . .120 
 
 w.Mullett. . . 283 
 
 Bobson V. Whittingham . . 205 
 Eoohdale Canal Co. </. King 70, 399 
 Bodgers v. Bodgers . . . 175 
 Boe V. Galliers 
 Bogan. V. Weir 
 Bogers v. Danforth . 
 
 V. Hull Dock Co 
 
 V. Tudor 
 
 . 95 
 . 371 
 . 82 
 . 312 
 . 97 
 . 96 
 , 136 
 . 149 
 42, 378 
 . 126 
 . 88 
 . 101 
 . 361 
 . 350 
 . 360 
 . 386 
 . 387 
 . 377 
 32,38 
 . 191 
 . 139 
 V. East Anglian Bailw. Co. 84 
 
 S. 
 
 St. Alban's (Duke of) v. Skipwith 
 
 or Skipwprth ... . 125 
 
 Bolfe V. Harris 
 
 V. Eolfe . 
 
 BoUins V. Einks . . 
 Bolt V. White 
 
 V. Lord Somerville 
 
 Boper V. Williams . 
 
 Boskell V. Whitworth 
 
 Boss V. Estates Investment Co. 
 
 V. Sherer 
 
 South V. Webster 
 Bowan v. Bunnels 
 Bowe V. Wood 
 Eoyou V. Paul 
 Eundell v. Murray 
 Eundle V. Pettit 
 Bussell V. Harford 
 
 St. Germans (Earl) v. Crystal 
 
 Palace Bailw. Co. . . 337 
 St. Germans (Earl) v. Crystal 
 Palace and South London Junc- 
 tion Bailw. Co. . . . 337 
 Sainter v. Ferguson . . 137, 232 
 
 Sails (Count de) v. — ; 115, 116 
 
 Salisbury (Marquis of) v. Glad- 
 stone 82 
 
 ■ V. Metropolitan Bailw. 
 
 Co 343 
 
 Salmon v. Eandall . . .297 
 
 Salomans v. Laing . . . 329 
 Salvin v. North Brancepeth Coal 
 
 Company .... 105 
 
 Sampson v. Smith . . . 101 
 Sanderson v. Cockermouth and 
 
 Workington Bailw. Co. . . 322 
 
 Sandys v. Murray. . . . 218 
 
 Sanxter v. Foster ... 29 
 
 Sargent v. Lamed . . . 144 
 
 V. Seagrave . . . 144 
 
 Saull V. Browne . . . 291 
 
 Saunders v. Annersley . . 39 
 
 V. Eodway . 22, 273 
 
 V. Smith 
 
 38, 154, 158, 219 
 Savile v. Kilner ... 34 
 Saxon Life Assurance Society, In re 39 
 Schackell v. Macaulay . . 291 
 
 Schetz's, &o 218 
 
 Schneider v. Lizardi . . . 289 
 Schotsmans v. Lancashire and 
 
 Yorkshire Eailw.Co. . . 246 
 Sohoole V. Sail . . .128 
 
 Schurmeier v. St. Paul, &c. . 656 
 Scott V. Becher . . .285 
 
 V. Liverpool (Corporation) 391 
 
 V. Nesbit ... 48 
 
 V. Scott . . . .170 
 
 V. Stanford . . .159 
 
 Seagram v. Enight . . . 126 
 Seagraves v. Bailroad Bank . 350 
 Searle v. Carpenter . . . 374 
 Secretary of State for India v. 
 
 Eamachee Boye Sahabar . 288 
 Seeley v. Fisher .' . . 222 
 Seixo V. Provezende . . . 170 
 Selby V. Crystal Palace Gas Co . 91 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 Selby V. Nettlefold . . .215 
 
 i;. Selby . . .370 
 
 Semmes v. Columbus . . 296 
 Semple «. Holland . . 85 
 
 Senior v. Pawson . . 212 
 
 Service v. Castaneda . . 289 
 
 Sevin v. Deslandes . . . 197 
 Shaftesbury and Chester Railw. 
 Co. V. Shrewsbury and Bir- 
 mingham Railw. Co. . . 322 
 Shallcross v. Oldham . . 198 
 Sharp V. Arbuthnot . . . 380 
 Shearman ?;. M'Gregor . .95,96 
 Sheffield (Duchess of) v. Buck- 
 inghamshire (Duke of) . 22, 24, 254 
 Sheppard v. Hong-Kong and 
 
 Shanghae Banking Corp. 
 V. Oxenford 
 
 95 
 235 
 218 
 180 
 215 
 349 
 
 Shipley v. Bitter 
 
 Shipwright V. Clements 
 
 Shoesmith v. Byerley 
 
 Shortridge v. Bosanquet 
 
 Shrewsbury and Chester Railw. 
 Co. V. Shrewsbury and Birming- 
 ham Kailw. Co. . . 53, 54, 55 
 
 Shrewsbury and Birmingham 
 Eailw. Co. V. The Stour Valley 
 Eailw. Co. . 
 
 Shrimpton v. Laight 
 
 Shurmeier v. St. Paul, &c 
 
 Sibtborp v. Moxom . 
 
 V. Moxton . 
 
 Sidney v. Sidney 
 Silyer v. Norwich (Bishop 
 Simons v. Cridland . 
 Simpson v. Denison . 
 V. Fogo 
 
 of) 
 
 332 
 171 
 218 
 411 
 411 
 271 
 305 
 382 
 326 
 8 
 
 ■ V. Lord Howden 32, 309, 386 
 . 109 
 
 • V. Savage 
 ■ V. South 
 
 Staffordshire 
 
 Waterworks Company . 
 Suns V. Estate Company . 
 Singer Manufacturing Company 
 
 V. Wilson . . . 164, 
 Skapholme v. Hart . 
 Skinners' Company v. The Irish 
 
 Society .... 
 Slee V. Bradford (Mayor, &o.) . 
 
 357 
 298 
 
 168 
 194 
 
 343 
 
 294 
 
 FAGB 
 
 Sloman v, Walter . . . 191 
 
 Small V. Currie . . ' .407 
 Smallman v. Onions . 119 
 
 Smallpiece v. Anguish . . 286 
 Smith, Ex parte, Me Collie . 241 
 
 1;. Aykwell . . 189,286 
 
 V. Bank &c. . . . 272 
 
 1;. Brctaley . . .48,49 
 
 V. Brownlow (Earl) . 79 
 
 V. Bruning . . . 190 
 
 V. Craig . . . 261 
 
 -y. Elger . . . 207 
 
 V. Hays . . 268 
 
 «. Haytwell . 189,286 
 
 V. Johnson . . . 161 
 
 -V. Leveaux . . . 229 
 
 V. London and South Wes- 
 tern Railway Company . . 151 
 
 U.Morris . . 371,372 
 
 V. Owen . . 210 
 
 V. Peters . . 55 
 
 .V. Reese River Silver Min- 
 ing Company 
 
 V. Smith 
 
 V. Stair (Earl of) . 
 
 V. Target 
 
 V. Weguelin . 
 
 — — V. Whitmore . 
 
 Smyth V. Carter 
 
 Smythe v. Smythe . 
 
 Society (The &c.) v. The Moms, 
 
 &c 71, 
 
 Somersetshire Coal Canal Com- 
 pany V. Harcourt . 
 Southwestern Railway Company 
 V. Coward .... 
 Southampton (Lord) v. Birming- 
 ham Railway Company . 
 
 Boat Co. V. Muntz 'i 
 
 V. Pinnock \ 
 
 : V. Rawlins I 
 
 361 
 58 
 264 
 262 
 4 
 257 
 270 
 114 
 
 348 
 
 348 
 
 315 
 
 59 
 
 360 
 
 Dock Company v. 
 
 Southampton Harbour and Pier 
 Board . . . .227 
 
 South Eastern Railway Company 
 V. Brogden . . . 227, 228 
 
 V. Martin 
 
 226,398 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 South Eastern of Portugal Eailw. 
 
 Co., In re . . . .346 
 Southey v. Sherwood . 154, 222 
 Sowerby v. Fryer . . . 125 
 
 Sparling v. Clarson 
 Sparrow v. Oxford, 
 
 Oo. . 
 Spear v. Cutter 
 
 &c.. 
 
 . 211 
 Bailw. , 
 28, 313 
 . 121 
 
 Spencer v. London and Birming- 
 ham Eailw. Co. . 58, 101, 308 
 
 Spicer v. Hayward . . . 193 
 
 Spiers V. Brown 
 
 Spiller V. Spiller 
 
 Spokes V. Banbury Local Board 
 of Health .... 
 
 Spottiswoode v. Clarke 
 
 Springhead Spinning Co. v. Riley 
 
 Sprye v. ReyneU . . 42, 
 
 156 
 
 54 
 
 51 
 
 155 
 
 290 
 
 43 
 
 Spurgin v. White . . . 269 
 Stackhouse v. Countess of Jersey 61 
 Stackpoole v. Curtis . . 406 
 
 Staffordshire and Worcestershire 
 Canal Cotnpany t). Birmingham 
 Canal Company . . 66, 70 
 
 211 
 284, 
 285 
 298 
 
 Staight V. Bum 
 
 Stainton v. Carron Company 
 
 V. Woobych 
 
 11, 
 
 St. Alban's(Duke of) v. Skipwith, 
 
 or Skipworth 
 Standish v. Mayor of Liverpool 
 Stanford v. Hurlstone 
 Stansfield v. Habergham . 
 Stapleton v. Haymen 
 Stead V. Clay .... 
 Stedman v. Hart 
 Steele v. North Metropolitan 
 
 Bailw. Co. .... 
 Sterne v. Beck 
 Stevens v. Benning . 
 V. Brett 
 
 125 
 354 
 370 
 117 
 202 
 240 
 410 
 
 310 
 250 
 134 
 159 
 
 V. Keating ... 32 
 
 V. King . . .146 
 
 V. Paine ... 44 
 
 V. South Devon Eailw. 
 
 Co 329,352 
 
 Stevenson v. Anderson . . 7 
 Stewart v. AUiston- . . . 376 
 
 Stewart v. Great Western Eailw. 
 
 Co 41, 42, 345 
 
 V. Eumball . . 191 
 
 Stiffs. Cassell . . .279 
 
 V. Local Board of Eastbourne 267 
 
 Stiles V. Cooper ... 93 
 Stocker v. Brooklebank . . 134 
 
 V. Wedderburn . 135, 136 
 
 Stockport District Waterworks 
 
 V. Manchester (Mayor, &o.) . 356 
 Stockton V. Darlington Eailw. 
 
 Co 313 
 
 and Hartlepool Eailw. 
 
 Oo. V. Leeds and Thirsk and 
 
 Clarence Eailw. Cos. 
 Stone V. Commercial Eailw. Co. . 
 
 V. Godfrey . . 39, 
 
 V. Marsh 
 
 V. Thomas 
 
 124, 
 
 23 
 324 
 367 
 289 
 
 242 
 125 
 402 
 
 Strachy v. Francis . 
 
 Strathmore v. Fortune 
 
 Stretton v. Great Western and 
 
 Brentford Eailw. Cos. . 318, 319 
 Strode v. Parker . . . . 250 
 Stuart V. Moore . . .13 
 Sturge V. Eastern Union Eailw. 
 
 Co. 342 
 
 Sturz V. De la Eue . . . 147 
 
 Styant v. Staker ... 78 
 Sufaeld V. Brown . . .214 
 
 Suffolk (Earl) «. Green . . 121 
 Sumner v. Kelly ... 84 
 Sutton u. Montfort . . .207 
 Swaine v. Great Northern Eailw. 
 
 Oo. . 34, 38, 101, 103, 104, 207 
 Swainston v. Clay . . . 245 
 Sweet V. Cater . . . 153 
 
 Sweetman v. Metropolitan Eailw. 
 
 Co 312 
 
 Sweney v. Smith . . . 359 
 Swift «;. Swift . . .277 
 
 Swindon Waterworks Co. v. 
 
 Wilts and Berks Canal Co. . 71 
 Syers v. Brighton Brewery Com- 
 pany .... 133, 353 
 Symes v. Hughes . . . 24^ 
 Symons v. Eeid ... 47 
 Sympson v. Prothero . . 245 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 T. 
 
 FAOE 
 
 Taft u. Harrison . . .350 
 Talbot. (Earl) v. Scott . 110, 111 
 Talleyrand v. Boulanger . . 15 
 Tapling v. Jones . . . 211 
 Tash V. Adams ... 35 
 Tatton V. MoUeneux . . 192 
 
 Taunton v. Eoyal Insur. Co. 349, 353 
 Taylor v. Fields . . .394 
 
 «. Gillott ... 83 
 
 V. Gilman . . . 373 
 
 V. Hughes . . .349 
 
 V. Taylor . . .175 
 
 V. Waters . . .129 
 
 Telegraph Despatch, &c. Co. v. 
 
 Maclean .... 99 
 Templfe Pier Co. v. Metropolitan 
 
 Board of Works . 
 Terrewest v. Featherby 
 Theed v. Debenham 
 Thiedmann v. Goldschmidt 
 Thorn V. Syddal 
 Thomas v. Daw 
 
 V. Gyles 
 
 V. Roberts 
 
 V. Tyler 
 
 V. Weeks 
 
 297 
 . 403 
 . 213 
 . 379 
 . 164 
 . 296 
 . 192 
 . 277 
 . 52 
 . 144 
 
 259, 262 
 . 241 
 . 250 
 . 196 
 
 181, 223 
 . 89 
 . 45 
 . 250 
 . 282 
 
 Thompson v. Anderson 
 
 V. Derham 
 
 V. Hudson 
 
 V. Smith. 
 
 : — - V. Stanhope 
 
 : — V. Giiyon 
 
 ■ V. Lambert 
 
 Thomson v. Harcourt 
 Thomhill v. Evans . 
 Thornton v. Conservators of 
 
 Biver Thames ... 50 
 
 V. Court . . .374 
 
 V .Curling . 6, 285 
 
 r- V. Pinch . . 84, 131 
 
 Thorpe v. Mattingley . . .392 
 
 V. Brumfitt . . .214 
 
 Thrale U.Ross. . . .385 
 Threlfall v. Lunt . . . .186 
 Tink V. Bundle . . .316 
 Tinkler v. Wandsworth District 
 
 Board of Works . . .297 
 
 PAGE 
 
 Tinsley v. Lacy - ■ • 1^7 
 Tipping V. Eckersly. • 86,206 
 Tonson v. Walker ... 29 
 Toulmin v. Copeland , • 351 
 Tower v. Eastern Counties Eailw. 
 
 Co 318 
 
 Townley v. Deare . . • 395 
 Townrow v. Benson . • 393 
 
 Tracy v. Tracy . . • 119 
 Trade Auxiliary Company v. 
 
 Vickers . . • • 352 
 Traill v. Baring . ... 16 
 Traiton v. Traiton : . . 190 
 Transatlantic Co. v. Pietroni 11, 392 
 Travis v. Milne . • • 285 
 Tredegar u. Windus. . . 52 
 Trenton, &c., v. McKelway . 367 
 Tresham v. Gerrard . . 119 
 
 Troup V. Ricardo ... 8 
 Tucker V. Laing . . . 406 
 Tufton V. Harding . . .261 
 Tulk V. Moxhay ... 90 
 Tunstall v. Boothby . . 248 
 
 Tuolumn e Water Co. v. Chapman 67 
 Turkey (Bank of) v. Ottoman Co. 360 
 Turkington v. Kearman . . 116 
 Turner v. Blamire . . 260, 354 
 
 V. Connor . . . 403 
 
 V. Major . . . 234 
 
 V. Mirfield . . .104 
 
 V. Ringwood 
 
 Board of Health 
 
 V. Spooner 
 
 V. Turner 
 
 V. Wright 
 
 Twort V. Twort 
 Tyler v. Yates 
 
 Highway 
 
 . 109 
 . 57 
 . 369, 413 
 30, 120, 121, 138 
 . 118 
 . 49 
 
 U. 
 
 Underwood v. Bedford and Cam- 
 bridge Railw. Co. . . . 313 
 
 United States v. Parrott . 112, 121 
 
 United States of, America v. 
 Wagner .... 289 
 
 Ulster Eailw. Co. v. Banbridge, 
 Lisburn, and Belfast Railw. Co. 312 
 
 Usborne i;. Usborne . , . 130 
 
 Digitized by Microsoft® 
 
TABLE OF OASES. 
 
 xU 
 
 Vance v. East Lancashire Railw. 
 
 Co. . . . . .311 
 
 Vandergucht v. De Blaquiere 22, 60, 
 
 274 
 Vane v. Lord Barnard . . 114 
 V. Cookermouth, Keswick, 
 
 and Penrith Eailw. Co. . . 324 
 Veer Eajundur Wadeer v. E. I. 
 
 Co. . 
 Veret v. Duprez 
 Vernon v. Smith 
 V. Thellusson 
 
 Viner v. Vaughan . 
 Viney v. Chaplin 
 Vyvyan v. Yyvjaa . 
 
 W. 
 
 . 288 
 
 . 255 
 
 . ' 90 
 286, 287 
 
 . 113 
 
 . 377 
 
 . 262 
 
 Wadeer «. Bast India Co. . . 288 
 
 Wafer v. Mocatto ... 95 
 
 Waine v. Crocker ... 33 
 
 Wakefield v. Buccleuch (Duke) 73 
 
 Walcot V. Walker . . . 154 
 
 Walker w. Ayres . . . 230 
 
 V. Jones . . 129, 375 
 
 V. Micklethwaite . 
 
 V, Sheppardson 
 
 V. Ware, Hadham 
 
 Buntingford Eailw. Co. 
 Wall V. Cockerell . 
 Wallace v. Campbell 
 
 V. Donegal 
 
 V. Patten . 
 
 52, 410 
 
 . 101 
 
 and 
 
 338, 339 
 
 . 373 
 
 6 
 
 . 35 
 
 . 368 
 
 46, 265 
 
 . 37 
 
 Wallwyn v. Coutts . 
 Walmesley v. Booth 
 Walton V. Crowley . . . 172 
 Wandsworth Board of Works v. 
 London and South Western 
 
 Eailw. Co 107 
 
 and Putney Gaslight 
 
 and Coke Co. v. Wright . 362 
 
 Ward V. Higgs ... 28 
 
 -^ V. Jefferey . . . 264 
 
 V. Key .... 145 
 
 Ware v. Grand Junction Water- 
 works Co. . . . 356, 357 
 V. Eegent's Canal Co. 36, 348, 358 
 
 Waring v. Manchester, Sheffield, 
 
 and Lincolnshire Eailw. . 226 
 
 Warner, Ex parte , , . 277 
 
 — V. Paine . . 388, 389 
 
 Warrington v. Wheatstone . 263 
 Warwick v. Queen's College, Ox- 
 ford . . . . 78,79 
 Washburne v. Gould . . 144 
 Washington v. Emery . . 412 
 Waterlow v Bacon ... 27 
 Waterpark (Lord)/!;. Austen . 115 
 Waters v. Taylor 91, 99, 238, 373 
 Watkins v. Brent . . .286 
 ■ — V. Flanagan 
 
 Watson, Ex parte 
 
 V. Allcock 
 
 Watts, w. Hyde 
 
 V. Kelson 
 
 V. Watts 
 
 133 
 241 
 408 
 37 
 70 
 272 
 
 Weale «. West Middlesex Water- 
 works Co 80 
 
 Weatherall v. Geering . . 95 
 Weaver, iJe . . 398,410,411 
 Webb V. Bird . . .210 
 
 V. Hewitt . . 267, 268 
 
 V. Manchester & Leeds Eail- 
 
 way .... 358. 
 
 359 
 
 43 
 
 136 
 
 Webber k Farmer . 
 
 Web-ster i>. Dillon . . . 135, 
 
 V, South Eastern Eailw. 
 
 Co. . . . . 111,280 
 Wedderbum v. Wedderbum . 12 
 Weeks v. Howard . . .67 
 Welch V. Knott . . .173 
 Weller v. Smeaton ... 35 
 Wellesley u. Wellesley . 122, 124 
 Wells V. Attenboropgh . 53, 85 
 
 V. Bridgeport ... 18 
 
 Wentworth v. Turner . . 114 
 Western v. M'Dermott . 90, 98 
 
 Westminster Brymbo Coal and 
 
 Coke Co. V. Clayton . . 75 
 Wetherbee v. Dunn . .33 
 
 Whaley v. Brancker . . 75 
 
 V. Morgan . . . 247 
 
 Whatman v. Gibson . . 89 
 
 Wheatley v. Westminster Brymbo 
 
 Coal Co 258 
 
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xUi 
 
 TABLE OP OASES. 
 
 Wheeler and Witeon Manufac- 
 turing Oo. 'V. Shakespear . 172 
 Whillingham v. Burgoyne. . 189 
 Whilmhurst v. Peerless . . 385 
 Wiiiston. V. Dean and Chapter of 
 
 Rochester .... 253 
 Whitaker v. Wright . . 402 
 White V. Carmarthen and Cardi- 
 gan Bail w. Co. . . .312 
 
 V. Cohen . . .106 
 
 •W.Hall ... 14 
 
 — "M. Jameson . . . 109 
 
 V. Peterborough (Bishop of) 305 
 
 V. Walsh . . . 115 
 
 V. Warner ... 96 
 
 Whitechurch v. Holworthy 78, 81 
 
 Whitehead v. Bennett . . 367 
 Whitfield V. Bewit . . .126 
 
 V. Parfitt . . .201 
 
 V. Sogers . . 218 
 
 Whitman v. St. Paul, &o. . . 218 
 Whitmore v. Thornton . . 389 
 Whitney v. Union, &o. . . 35 
 Whittaker u. Fox . . .377 
 Whittingham v. Wooler . . 224 
 Whitworth v. Davis . . 240 
 
 V. Gaugain . . 132 
 
 V. Rhodes . . 128 
 
 Whyte V. O'Brien . . .393 
 Wiokham v. New Brunswick and 
 
 Railw. Co. . 
 V. Gratrill . 
 
 131 
 
 289 
 
 108 
 
 21 
 
 Wicks V. Hunt 
 
 Wilcocks V. Carter . 
 
 Wild V. South Western Eailw. Co. 312 
 
 Wilde V. Ashley ... 41 
 
 V. Gibson . . .42 
 
 Wildy V. Mid-Hants Railw. Co. 339 
 Wiles V. Gresham ... 46 
 Willes V. Levett . . .373 
 Willesford v. Watson . . 259 
 Wilkinson v. Rogers . . 86 
 Williams v. Aylesbury and Buck- 
 ingham Eailw. Co. . . 338 
 
 V. Bagnall . . 73 
 
 V. Baily . . 22, 274 
 
 V. Bolton (Duke of) 117, 127 
 
 u. Davies . . .131 
 
 Williams v. Day 
 
 V. Detroit 
 
 ■■ — V. Earle . 
 
 V. Evans . 
 
 V. Ivimey 
 
 V. James . 
 
 V. Jersey (Earl of) 
 
 V. Johnson 
 
 FAOB 
 
 120 
 292 
 94 
 83 
 305 
 215 
 104 
 172 
 
 V. Lee . . 387, 399 
 
 V. M'Namara . . 124 
 
 V. Prince of Wales Life 
 
 Co 221 
 
 V. Roberts . 19, 33, 387 
 
 V. St. George's Harbour 
 
 Co 310 
 
 «. Williams . . 120 
 
 Williamson v, Caman . . 103 
 
 ■ v. Gihon . . 190 
 
 V. Moriarty . . 45 
 
 Willingale v. Maitland . . 263 
 WilUs V. Childe . . .252 
 Wilmot V. Lennard ... 43 
 Wilson V. Hart . . 90, 98 
 
 V. Hughell . . .218 
 
 V. Townend . . 206 
 
 ■;;. Wetherherd . . 392 
 
 V. Wilson . 22, 273, 274 
 
 Wilts and Berks Canal Naviga- 
 tion Co. V. Swindon Water- * 
 works Co. .... 71 
 Winch V. Birkenhead, Lanca- 
 shire, and Cheshire Junction 
 
 BaUw. Co 326 
 
 Winchester (Bishop of) v. Four- 
 
 nier 186 
 
 (Bishop of) V. Mid- 
 Hants Railw. Co. . . . 337 
 
 (Bishop of) t;. Wolgar 126 
 
 Winn V. Wilkins . . . 188 
 Winscom, Inre . . . 277 
 Winter v. Metropolitan Board of 
 
 Works .... 297 
 Winthrop v. MuiTay . . 96 
 
 Wintle V. Bristol and South 
 
 Wales Union Railw. Co. . 34 
 Withall V. Tuckwell . . 389 
 
 Witherington v. Cotesworth . 130 
 Wolverhampton and Walsall 
 
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TABLE OF CASES. 
 
 xliii 
 
 Eailw. Co. V, London and 
 Nortli Western Eailw. Co. 136, 261 
 
 Womersley v. Church 
 
 Wood V. Barker 
 
 V. Charing Cross Eailw. Co, 
 
 70 
 266 
 318, 
 354 
 . 183 
 182, 183 
 
 V. Leadbitter 
 
 V. Eowcliffe 
 
 V. Saunders . . . 215 
 
 V. Sutcliffe ... 69 
 
 V. Tirrell ... 85 
 
 Woodcock V. Oxford and Worces- 
 ter Bailw. Co. . . . 408 
 Woodhouse v. Meredith . . 48 
 
 Woodroffe v. Famham . . 193 
 Woodruff V. Fisher . . .399 
 Wood worth v. Stone . . 144 
 
 Woollam V. Eatcliff . . 173 
 
 Woolsey v. Judd . . . 181 
 Worms (Baron de) v. Mellier 17, 18 
 Worrall v. Jacob . . 22, 274 
 
 Wotherspoon v. Currie . . 172 
 
 Wright V. Atkyns . . .113 
 
 V. Brighton Brewery Co. 
 
 V. Howard ... 66 
 
 ■ V. Sandars . . . 406 
 
 Wrixon v. Condra . . . 118 
 
 Wrixon v. Vize 
 Wyke V. Eogers 
 Wyld V. Lewis 
 Wynne v. Callander 
 
 V. Griffith 
 
 V. Hughes 
 
 V. Jackson 
 
 Wynstanley v. Lee. 
 
 Y. 
 
 FAOB 
 
 . 25 
 
 . 407 
 
 . 119 
 186, 256 
 
 . 377 
 
 . 13 
 
 . 401 
 
 . 207 
 
 Tarnold v. Moorhouse 
 
 Yates V. Jack . 
 
 Yescombe v. Landor 
 
 Yewens v. Eobinson 
 
 Yool V. Great Western Eailw. Co. 
 
 . 95 
 
 205, 208 
 
 . 131 
 
 . 240 
 
 343, 
 
 347 
 
 (Mayor, &c., of) v. Bilking- 
 
 ton . . . . . 
 Young V. Macrae 
 V. Neill 
 
 Younge v. Shaper . 
 Yovatt V. Winyard 
 
 Z. 
 Zabriskie v. Jersey, &c. 
 
 . 19 
 . 179 
 . 244 
 . 206 
 46, 138 
 
 101 
 
 Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
STATUTES CITED. 
 
 52 Hen. 3 (Statute of Marlbridge) 126 
 11 Hen. 7 . . . .120 
 5 & 6 Edw. 6, c. 16 (Buying and 
 
 Selling Offices) ... 51 
 27 Bliz. c. 4 (Covinous and 
 
 Fraudidmti Conveyances') . 247 
 9 & 10 Will. 3, c. 15 (Arhitra- 
 
 tions) . . 257,258,399 
 
 8 Anne, c. 19 (Copyright) . 160 
 
 9 Anne, c. 14, s. 5 . . .256 
 4 aeo. 2, 0. 28 . . . 365 
 46Geo. 3,0.69 . . .248 
 47 Geo. 3, sess. 2, c. 25 . . 248 
 , s. 4 . 247 
 
 4 Geo. 4, c. 76 (Marriage Act, 
 1823) . . . .272 
 
 7 Geo. 4, c. 46 . . . 349 
 
 1 & 2 Will. 4, 0. 58 (Inter- 
 pleader Act) . . . 395 
 
 2 & 3 Will. 4, c. 71 (Prescrip- 
 tion Act) .... 79 
 
 8.1. . 82 
 
 s. 2. . 66 
 
 ss. 3, 4 . 212 
 
 3 & 4 Will. 4, c. 98, s. 3 . . 351 
 
 5 & 6 Will. 4, 0. 65 (Publication 
 
 of Lectures) . . . 223 
 , c. 76 (Mitnicipal 
 
 Corporations Act) . . 295 
 6.&7 Will..4, 0. 76, s. 19 . 290 
 
 l&2.Vict. 0. 45 . . .395 
 2 & 3 Viot. c. 54 (Custody of 
 
 Infants) .' . . . 277 
 
 5 & 6 Vict. c. 45 (Copyright) 
 
 , S3. 13, 15 
 
 , s. 18 . 
 
 , s. 23 . 
 
 , s. 26 . 
 
 PAGB 
 
 160 
 163 
 279 
 160 
 159 
 
 5 & 6 Viot. c. 100 (Copyright of 
 Designs) . . . 163, 164 
 
 6 & 7 Vict. 0. 65 (Copyright of 
 Designs) .... 163 
 
 7 & 8 Viot. 0. 110 (Joint Stock 
 
 Companies Registration Act). 359 
 
 8 Vict. c. 16 (Compcmies Clauses 
 
 Consolidation Act) . . 339 
 
 , c. 18 (Land Clauses 
 
 Consolidation Act), 1845) 74, 314, 
 317, 320 
 
 ^,8.68 . , 315,348 
 
 , s. 85 . 312, 313, 316, 318 
 
 ,8.92 . . 312,313 
 
 , 8. 127 . . . 340 
 
 -, s. 128 . 339, 340, 341 
 
 8 Vict. c. 20 (Railways Clauses 
 
 Consolidation Act, 1845) 74, 322, 
 
 333, 344 
 
 ,8.49 . . .333 
 
 ,8.56 . . .336 
 
 ,88.77,78 . . 325 
 
 , 8. 115 . . . 337 
 
 8 & 9 Viot. <5. 89 (Sh'ip Registry 
 Act) 201 
 
 88.34-39 . . 201 
 
 9 & 10 Viot. 0. 93 (Compensation 
 where Death hy Accident) . 200 
 
 Digitized by Microsoft® 
 
xlvi 
 
 STATUTES CITED. 
 
 10 & 11 Viot. c. 17 (Waterworks 
 Glauses Act, 1847) . .348 
 
 . s. 6 . 347 
 
 11 & 12 Vict. 0. 63 (PuUic Health 
 Act, 1848) . . . .300 
 
 15&16 Vict. c. 83. . . 264 
 ■ — ,0.85. . . 306 
 
 16 & 17 Viot. c. 137 (CharUable 
 Trusts Act, 1853) . . 254 
 
 , s. 22 . . 252 
 
 17 & 18 Vict. 0. 31 {Railway and ■ 
 Ganal Traffic Act) . . 319 
 
 17 & 18 Vict. 0. 90 {Repeal of 
 
 Usury Laws) ... 49 
 17 & 18 Viot. 0. 104 {Merchant 
 Shipping Act, 1854) . 201, 196 
 
 — ; , s. 65 . 200 
 
 — , ss. 70, 71. 194, 
 
 195 
 
 , s. 79 . 200 
 
 , s. 99 . 197 
 
 , c. 125 {Common 
 
 Law Procedure Act, 1854) 244, 259 
 
 '- , s. 8 . 260 
 
 , s. 11 . 258 
 
 , s. 15 . 260 
 
 , s. 17 . 257 
 
 , s. 61 . 245 
 
 18 & 19 Viot. 0. 91 {Merchant 
 Shipping Amendment Act, 
 1855), s. 70 . . . 200 
 
 , c. 124 {Charitable 
 
 Trusts Amendment Act, 1855) 254 
 
 19 & 20 Vict. 0. 47 {Joint Stock 
 Companies Act, 1856) . . 360 
 
 20 & 21 Viot. c. 77 {Probate Act, 
 1857), ss. 70, 71 . 
 
 21 & 22 Vict. 0. 27 {Sir Hugh 
 Cairns' Act) 
 
 , 0. 70 (Copyright 
 
 23 & 24 Vict. c. 136 (Charitable 
 Trusts Act, 1860), s. 14 
 
 24 & 25 Vict. 0. 134 (The Bank- 
 ruptcy Act, 1861), s. 110 
 
 , s. 192 
 
 25 & 26 Vict. 0. 42 (The Chan- 
 cery R^ulation Act, 1862 — 
 RoWs Act) .... 
 
 , c. 63 (Merchant 
 
 Shipping Act Amendment Act, 
 1862) .... 
 
 , s. 3 . 
 
 of Designs Act, 1858) . 
 
 22 &, 23 Viot. 0. 35 (Covenant, 
 &c., to insure against Fire), 
 ss. 4r-9 .... 
 
 23 Vipt. c. 11 (Endowed Schools 
 Act, 1868) .... 
 
 23 & 24 Vict. c. 136 (Charitable 
 , Trusts Act, 1860) 
 
 255 
 
 97 
 
 164 
 
 252 
 
 242 
 241 
 
 142 
 
 , c. 89 ( Companies 
 
 Act, 1862), s. 47 . 
 26 & 27 Viot. c. 92 (Railways 
 
 Clauses Act, 1863), part 3 . 
 ■, c. 93 ( Waterworks 
 
 200 
 201 
 
 356 
 
 331 
 
 348 
 
 342 
 
 tion Medals Act, 1862). . 243 
 27 & 28 Vict. 0. 112 (Judg- 
 ment Law Amendment Act), 
 s. 1 . . . . . .84 
 
 30 & 31 Viot. 0. 127 (Railways 
 
 Companies Act, 1867) . . , 346 
 , c. 131 (The Corn- 
 
 Clauses Act, 1863) 
 
 , 0. 118 (Companies 
 
 Clauses Act, 1863), ss. 13-15. 
 — , o. 119 (Mchibi- 
 
 panies Act, 1867) 
 31 Vict. c. 4 (Reversionary In- 
 
 253 
 
 254 
 
 31 & 32 Vict. c. 118 (The PuhUc 
 Schools Act, 1868) 
 
 , ss. 13, 28 . 
 
 32 & 33 Vict. 0. 24 
 , c. 56 (Endowed 
 
 Schools Act, 1869) 
 
 , c. 71 (Bankruptcy 
 
 Act, 1869), ss. 14, 17 . 
 , ss. 13, 65, 
 
 72 
 
 , 0. 110 (Charitable 
 
 Trusts Act, 1869) 
 36 Viot. 0. 12 (Custody of In- 
 
 — ■■ , s. 2 . 
 
 36 & 37 Vict. 0. 48 (The Regula- 
 tion of Railways Act, 1873) . 
 
 297 
 
 49 
 
 253 
 252 
 290 
 
 253 
 
 240 
 
 240 
 
 254 
 
 277 
 275 
 
 319 
 
 Digitized by Microsoft® 
 
STATUTES CITED. 
 
 xlvii 
 
 36 & 37 Yict.o. 66 (The Supreme 
 Court of JucUcature Act, 
 1873) . . . 1,97,142 
 
 , Order 19 (3) 381 
 
 , s. 25 (6) 378, 416 
 
 , s. 25 (8) 64, 286 
 
 , 0. 87 {Endowed 
 
 Schools Act, 1873) . . 253 
 
 37 & 38 Vict. 0. 87 (Endowed 
 Schools Act, 1874) . . 253 
 
 38 & 39 Vict. 0. 77 (The Su- 
 preme Court of Judicature Act 
 (1873) Amendment Act (1875) 
 
 rules 
 
 rules 
 (U. S.) Gen. Stats, c. 57, s. 7 
 
 97, 
 142 
 
 s. 9 . 1 
 
 Order 19, 
 . 228, 393 
 
 52, 
 
 . 255 
 350 
 
 EEEATDM. 
 
 Page 230, line 17 from top, for " a claim which," &c., to end of line, read 
 " a claim of the principal debtor which has been allowed against the creditor." 
 
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Digitized by Microsoft® 
 
THE 
 
 DOCTEINES AND PEINCIPLES 
 
 OF THE 
 
 LAW OF INJUNCTIONS. 
 
 INTRODUCTION. 
 
 Definition of an Injunction. 
 
 An injunction is a writ remedial, issuing by the order of a Court 
 of Equity, in those eases where the plaintiff is entitled to equitable 
 relief, by restraining the commission or continuance of some act of 
 the defendant (1). 
 
 Injunctions are usually divided into two classes, one, to stay 
 wrongful acts of a special nature (not being proceedings in other 
 Courts) ; the other, to stay proceedings in Courts of Law and 
 other Courts. The first class of injunctions provides a remedy 
 for the prevention of the commission, or for stopping, or for the 
 abatement of any act that is contrary to the principles of Equity ; 
 this class of injunctions is obtained in a Court of Equity in those 
 cases where there is no necessity for exercising the power such 
 a Court possesses of restraining proceedings in Courts of Law and 
 
 (I) Vide Eden on Injunctions, created by that Act, and constituted 
 
 pp. 1, 2. Under the provisions of of the then existing Court of Chan- 
 
 " The Supreme Court of Judicature eery, Courts of Common Law, Courts 
 
 Act, 1873 " (36 & 37 Vict. c. 66) and of Admiralty, Probate and Divorce 
 
 " The Supreme Court of Judicature and Matrimonial causes, in all cases 
 
 Act (1873) Amendment Act, 1875," where before the Act thoy could only 
 
 (38 & 39 Vict. 0. 77, s. 9), the power have been granted by a Court of 
 
 of granting injunctions has been Equity, 
 given to the " High Court of Justice " 
 
 B 
 
 Digitized by Microsoft® 
 
INTRODUCTION. 
 
 other Courts (1). The second class of injunctions provides a 
 remedy, by means of which, a party is prevented from taking ad- 
 vantage of the fact that he is entitled to institute or continue pro- 
 ceedings against another party in a Court, not being a Court of 
 Equity; and enables a party who would not have a defence in 
 such a Court, but nevertheless may be entitled to be relieved by 
 a Court of Equity, to stay the proceMings in that Court, and to 
 obtain a decision of a Court of Equity upon the question of his 
 right to equitable relief (2). 
 
 (1) Eden, p. 2. 
 
 (2) Vide Eden on Injunctions, p. 3. 
 
 Digitized by Microsoft® 
 
( » ) 
 
 PART I. 
 
 CHAPTEE I. 
 
 Jurisdiction. 
 
 Sect. 1. Injunctions to restrain Acts of a Special Nature (not being 
 Proceedings in other Courts). 
 
 1. It would seem that a person on whom an injury is fraud- Foreigners. 
 ulently committed may haye a remedy in the Courts of any 
 country where the fraud occurs, and even though he be at the 
 
 time an alien enemy ; thus a foreign manufacturer has a remedy 
 by suit in this country for an injunction to restrain the fraudulent 
 appropriation of his trade-mark, and for an account of profits, 
 against a manufacturer in this country who has committed a 
 fraud upon him, by using his trade-mark for the purpose of 
 inducing the public to believe that the goods marked are manu- 
 factured by the foreigner ; this relief is founded upon the personal 
 injury caused to the foreigner by the defendant's fraud, and exists 
 although he resides and carries on his business in another country, 
 and has no establishment, here, and does not even sell, or usually 
 sell, the goods on which such trade-mark is afSxed, in this 
 country (1). 
 
 2. The Courts of this country have no jurisdiction on a contract Foreign 
 
 as against a foreign sovereign, and they have none as against other So^areign— 
 parties in favour of whom it is alleged the sovereign has committed Government, 
 an act in derogation of rights and privileges already granted to 
 another party, nor have these Courts jurisdiction to interfere with 
 
 (1) Collins Company v. Brown, Same 929 ; et vide Collins v. Reeves, 4 Jur. 
 V. Cohen, 3 K. & J. 423 ; 3 Jur. (N. S.) 865. 
 
 B 2 
 
 Digitized by Microsoft® 
 
± JURISDICTION. 
 
 Pabt I. the sovereign acts of a foreign government, nor with the preroga- 
 Seo™1. " tive rights of the sovereign of another country ; therefore, in the 
 ' case of two inconsistent grants of the same subject-matter, by the 
 
 same foreign sovereign authority, a Court of Equity in this country 
 cannot aid parties claiming under the first grant against claimants, 
 though within the jurisdictiou, acting under the second (1). An 
 English Court has no jurisdiction to enforce the contracts of a 
 foreign government against the property of such government in 
 England ; and where the government of a state contracts a loan in 
 another country, the contract is governed by the law of the state 
 whose government contracts tlie loan, and not by the law of the 
 country in which the contract is made (2). But if a foreign 
 government by its agent make a contract in this country, and has 
 lodged money in the hands of agents in this country, impressed 
 with a plain and clear trust for payment of the sums to become 
 due under the contract, the Court will not refuse relief to the 
 contractor because the foreign government does not appear before 
 the Court and submit to the jurisdiction (3). There is no doubt 
 that the Court, having a trust fund under its control, may proceed 
 to administer that fund, although a foreign government may be 
 interested in it, and may not be before the Court, or subject to the 
 jurisdiction of the Court (4). And a decree can be made against 
 the agent of a foreign government restraining him from taking 
 away securities deposited in tbis country on behalf of the public 
 creditors of the foreign government, where that government has 
 not appeared to the bill (5). The Court of Chancery has n& 
 jurisdiction to interfere merely with a view to prevent revolution, 
 it is only to prevent an injury to property that its aid by injunction 
 can be invoked. The actual reigning sovereign of a foreign state 
 in amity with Great Britain is entitled to sue in this Court, and to 
 obtain an injunction to prevent the issuing of monetary notes 
 manufactured in England, purporting to be notes of that foreign 
 
 (1) Gladstone v. Ottoman Sank, 1 W. K. 480, 731 ; 41 L. J, (Ch.) 
 H. & M. 505 ; 9 Jul-. (N. S.) 246. 746. 
 
 (2) Smith V. Weguelin, L. E. 8 Eq. (4) Morganv.Lariviere,L.'R.7 H. L. 
 198; 17 W. R. 904; 38 L. J. (Ch.) 423,430; 44 L. J. (Ch.) 760. 
 
 465 ; 20 L. T. (N. S.) 724. (5) Foreign Bondholders {Owporation 
 
 ■ (3) Lariviere v. Morgan, 7 L. E. of) v. Pastor, 23 W. B. 109 ■ 31 L. T. 
 (Ch.) 550; 26 L. T. (N.S.) 859; 20 (N. S.) 567. 
 
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JUEISDICTION. t 
 
 fltate, but haying no sanction from its government, if the Couirt tpabt I. 
 is satisfied that some substantial injury will thereby accrue to the Sbot. i. " 
 
 property of such foreign state and to that of tbe plaintiffs subjects ^~ ~~~~ 
 whom he has a right to represent (1). This Court has jurisdiction 
 by injunction to protect property from that which if completed 
 .would give a right of action, though it is not in every such case 
 that an injunction may be demanded as of right, but if the party 
 applying is free from blame, and promptly applies for relief and 
 shews that by the threatened wrong, his property would "be so 
 injured that an action for damages would be no adequate redress, 
 the injunction will be granted ; and although an action arising 
 purely ex delicto for an injury to property, may not have been 
 brought by a foreign sovereign against an English subject in an 
 English Court ; on principle, there can be no doubt that such an 
 action would be maintainable (2). A king who has re-established 
 his authority after a revolution, the government of which may 
 have seized upon his treasure and remitted part of it to persons in 
 this country to purchase property, as for instance, steamships^ is 
 ■ entitled to sue for those that may remain in the port of London (3). 
 It is laid down as clear as any proposition can be, that the 
 independent sovereign of a state is competent, in this country, to 
 sue for his personal rights (4). 
 
 3. Although the Courts in this country cannot make an order Foreign 
 against a foreign ambassadoi: who does not submit himself to the ^™ ^^^ °'^^' 
 jurisdiction, yet a Court of Equity has jurisdiction, in a suit by an 
 English citizen against another English citizen in whose hand a fund 
 is placed, subject to the sole control at law of a foreign ambassador 
 or government, to restrain the defendant from parting with the fund 
 upon the order of such foreign ambassador or government ; and the 
 existence of a contingent right in a foreign sovereign to a fund in 
 the Bank of England, will not prevent such a Court from exer- 
 cising jurisdiction to restrain the Bank from parting with the fund, 
 
 (1) Emperor of Austria v. Day and (3) King of the Two Sicilies v. Wil- 
 KKossut7i,S Be G. F. & J. 217 ; 9 W. E. cox, 1 Sim. (N. S.) 301, 332, 333 ; et 
 -712, 568; 7 Jur. (N. S.) 639 ; 2 Giff. vide The Kaboh of the Carnatic v. Tlie 
 
 628 ; 30 L. J. (Oh.) 690. East India Co., 1 Ves. Jun. 371 ; 
 
 (2) Emperor of Austria v. Bay and The King of Spain v. Hullett, 1 Bli. 
 ■Kossuth, 3 De G. P. & J. 217 ; 7 Jur. (N. S.) 31. 
 
 (N. S.) 639; 30 L. J. (Oh.) 690. (4) lb. 
 
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JURISDICTION. 
 
 Pabt I. 
 
 Chapteb I. 
 
 Sect. 1. 
 
 British 
 subjects — 
 Foreigners. 
 
 until the determination of the question between the British subject 
 and the foreign sovereign as to the right to the fund (1). 
 
 4. A Court of Equity has no power to restrain British subjects 
 from doing in a foreign country, whatever they are authorized to 
 do by the sovereign power there (2). And it must be a very 
 strong case which would justify the Court in restraining a foreigner, 
 domiciled in another country, from proceeding to obtain payment 
 of debts, according to the law of the country in which he is domi- 
 ciled (3). So a Court of Equity will not restrain an administra- 
 trix to the estate of a person who was domiciled abroad (the 
 administratrix having taken out letters of administration both in this 
 and the foreign country), who is under a bond to the foreign Court 
 properly to manage the property in England, from transmitting 
 the English personalty to the foreign country ; the English Court 
 must take for granted that the foreign Court will do justice, as 
 well as the Court here (4). If the property of a deceased person 
 has been remitted by a personal representative, legally consti- 
 tuted by a Court of Her Majesty abroad, to this country, with a 
 request that the agent of the foreign administrator should place 
 the proceeds of the same to the account of the estate, an English 
 administrator of the deceased has a right to sue the foreign repre- 
 sentative of the deceased in this country, in respect of those assets 
 which are in this country, and to have the control of this Court 
 exercised over them, until the rights are determined at the hearing ; 
 and the Court will restrain the foreign administrator from re- 
 ceiving the proceeds of the property (5). If a party domiciled in 
 one country has personal estate in another, though probate of his 
 will in the latter country may be granted for the purpose of 
 getting in his estate, yet such probate must be treated as ancillary 
 to the law of the country of the domicil, and distribution of the 
 estate ought to be directed accordingly (6). 
 
 5. One foreigner may file a bill to restrain other foreigners re- 
 siding abroad from misapplying a fund, and for its administration ; 
 
 (1) Gladstone v. Musurus Bey, 9 v. The Garron Co., 26 L. J. (Ch.) 
 Jur. (N. S.) 71 ; 32 L. J. (Ch.) 155 ; 332 ; Stainton v. Carron Co., 21 Beav. 
 11 W. R. 180. 152. 
 
 (2) Gladstone Y. Ottoman Bank, 9 (.i)Wallace-v.Camphell,4,Y.&:C.167. 
 Jur. (N. S.) 246. (5) Jlervey v. Fitzpatrick, Kay, 421. 
 
 (3) Madaren v. Stainton, Maclaren (6) Thornton v. Curling, 8 Sim. 310. 
 
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JURISDICTION. < 
 
 and if the foreigners will not appear, to submit to, or come within the Pabt I. 
 jurisdiction, the possibility that there might be a failure of justice seot. i. 
 by their not submitting to the jurisdiction, can be dealt with by 
 the Court. All that is necessary is for the plaintiff to shew' that 
 he has used all due diligence to bring the persons out of the 
 jurisdiction, to contend with those who are within it, and that they 
 will not come. The Court upon that default, and their so abstain- 
 ing from giving the plaintiff the opportunity of obtaining relief, 
 will, if they afterwards come here and bring an action, injoin that 
 action for ever (1). 
 
 6. Equity may entertain a bill respecting land, though the land 
 is not within its jurisdiction, where its decree can be enforced by 
 acting on the person of a party (2). If a party can obtain the 
 relief he is entitled to in respect of land out of the jurisdiction, 
 against parties within the jurisdiction, who are already before a 
 Court within the jurisdiction competent to give the relief, a Court 
 of Equity will not, on principle and authority, permit these parties 
 to be troubled by an action out of the jurisdiction (3). 
 
 7. There is no doubt that when persons who are resident here 
 enter into a contract, though the subject-matter of the contract is 
 abroad, yet the contract may be sustained; but when neither 
 party has an}i;hing to do with this country, and the subject-matter 
 is not situate here, the Court will not interfere (4). 
 
 8. There must be some special circumstances in order to justify 
 the interference of the Court, such as the fact of one of the parties 
 being resident or the property situate in ihis country; otherwise 
 there must be an absolute necessity for interfering (5), 
 
 9. According to the established law of nations, if a suit in this 
 country is for damages only, or one which could result in damages 
 only, the plaintiff must, in order to enforce his claim for damages, 
 go and seek the forum of the defendant. But where the contract, 
 though made abroad, is to deliver a thing in specie to a person in 
 this country, and the thing itself is brought here, then the Court 
 
 (1) Central Railroad and Banking (3) Eustace t. Lloyd, 25 W. B. 211. 
 Company v. Mitchell, 2 H. & M. 452 ; (4) Blahe v. Blake, 18 W. E. 944. 
 Stevenson v. Anderson, 2 V. & B. 407. (5) Matthaei v, Oalitzin, 22 W. E. 
 
 (2) Enos V. Hunter, 4 Gilm. 211 700; L.E, 18 Eq. 340; 43 L.J. (Ch.) 
 (Amr.). 536 ; 30 L. T. (N. S.) 445. 
 
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» JDEISDICTION. 
 
 Paet I. here, in the exercise of its discretion, will see that the thing to be 
 
 jCh AFTER T 
 
 Sect. 1. ' delivered in this country, does not leave this country so as to 
 ~ defeat the right of the plaintiff to have it so delivered (1). 
 
 Judgments of 10. If the proceedings in a foreign Court do not amount to a 
 oreign Courts, jy^gojgjj^. ^^ ^g^^ ]but in personam only, and a party has not been 
 concluded by having intervened to defend his rights in a suit, and 
 his conduct has not amounted to a selection of a foreign jurisdic- 
 tion, the judgment of the foreign Court is examinable by the 
 Courts of England (2). And if there is a plain and manifest error 
 on the face of the judgment, an English Court will not be bound 
 to recognise it (3). 
 
 11. If it is found impracticable to execute a decree in England, 
 the Court of Chancery in Ireland has jurisdiction to carry the 
 English decree into execution. The propriety of the English 
 decree may be examined in the suit in Ireland, and if part of it 
 is sustainable, it may, so far, be executed by the aid of the Irish 
 Court, although the other parts may be erroneous (4). 
 
 Universal 12. If there be an infirmity in a particular jurisdiction in 
 
 jurisdiction of_.-, ii-i-i 
 
 Chancery in Jingiand, through which it has no power to decide a question 
 
 cular jCisic- ^''^ising from matters connected with its particular jurisdiction, the 
 
 En*! ™d Court of Chancery will exercise its universal jurisdiction where 
 
 the question is one that comes within that jurisdiction (5). So 
 
 the Court will aid a public body acting duly within its authority, 
 
 by an injunction restraining the commission of the act prohibited 
 
 by that public body (6). 
 
 (1) Bart V. Berwig, L. E. 8 Ch. (4) Boulditch v. Donegal, 8 Bli. 
 860, 863 ; 42 L. J. (Ch.) 457 ; 21 W. E. (N. S.) 301 ; 2 01. & F. 470. 
 
 663, 538 ; 28 L. J. (N. S.) 329 ; 29 (5) Troup y. Ricardo, 4 De G. J. & 
 
 L. J. (N.S.) 47. S. 489, 495 ; 34 L. J. (Ch.) 91. 
 
 (2) Simpson v. Fogo, IJ. & H. 18 ; (6) Att.-Gen. v. Great Western 
 1 H. & M. 195 ; 6 Jur. (N. S.) 949 ; Bailw. Ca. and Midland Railw. Co. 
 29 L. J. (Ch.) 657. 24 W. E. 1015. 
 
 (3) lb. 
 
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JURISDICTION. 
 
 Sect. 2. Injunctions to restrain Proceedings in Courts of Law Pabt I. 
 and other Cowts. 1 
 
 1. Wherever a party by fraud, accident, or otherwise, has an 
 advantage in proceeding in a Court of ordinary jurisdiction, which 
 must necessarily make that Court an instrument of injustice, and 
 it is therefore against conscience that he should use the advan- 
 tage ; in such case, to prevent a manifest wrong, Courts of Equity 
 interpose, by restraining the party whose conscience is thus 
 bound from using the advantage he has improperly gained ; and 
 upon these principles, bills and other applications to restrain pro- 
 ceedings in Courts of ordinary jurisdiction are of frequent occur- 
 rence (1). An injunction, where its object is to restrain proceed- 
 ings in another Court, is directed only to the parties ; it neither 
 assumes any superiority over the Court in which they are pro- 
 ceeding, nor denies its jurisdiction, but is granted on the sole 
 ground, that from certain equitable circumstances, of which the 
 Court that issues it has cognisance, it is against conscience for 
 the party to proceed in the cause (2). The injunction, when 
 awarded, does not deny, but admits the jurisdiction of the Court 
 of Common La\y, and the ground on which it issues is, that it is 
 making use of its jurisdiction contrary to equity and conscience (3). 
 
 2. The authority of a Court of Equity, upon' a proper case 
 being made, to restrain persons within its jurisdiction from prose- 
 cuting suits either in Courts within its jurisdiction, or of foreign 
 countries, is clear and indisputable. In the exercise of this power. 
 Courts of Equity proceed, not upon any claim of right to interfere 
 Vifith, or to control the course of proceedings in other tribunals, 
 but the jurisdiction is founded on the clear authority vested in 
 Courts of Equity over persons within the limits of their jurisdic- 
 tion and amenable to process, to restrain them from doing acts 
 which will work wrong and injury to others. As the decree of the 
 Court in such cases is pointed solely at the party, and does not 
 extend to the tribunal where the suit or proceeding is pending, it 
 is wholly immaterial that the party is prosecuting his action in 
 
 (1) Vide Mitf. PI. 150, 5th ed. 
 
 (2) Eden, Inj. 4 ; Burpee v. Smith, Walker, Ch. 327 (Amr.). 
 
 (3) Hill V. Twner, 1 Atk. 515, 516. 
 
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10 JUEISDICTION. 
 
 Paet I. the Courts of a foreign state or country (1). The great purpose of a 
 ^Seot^2/' Court of Equity, in assuming jurisdiction to restrain from proceed- 
 
 ings at Law, is to afford a more plain, adequate and complete remedy 
 
 for the wrong complained of, than the party can have at Law (2), 
 
 3. The Court of Chancery has jurisdiction to stay the proceed- 
 ings of parties in a foreign Court (3). If the circumstances of 
 a case are such as would make it the duty of a Court of 
 Equity in this country, to restrain a party from instituting pro- 
 ceedings in another Court here, they will also warrant it in im- 
 posing on him a similar restraint, with regard to proceedings in a 
 foreign Court (4). If an order has been made in a suit in England, 
 which in effect decided that the Court of Chancery here is the 
 proper tribunal to decide a question, that Court will restrain a 
 party to the suit in England from prosecuting an action against the 
 other party out of England — for instance in Scotland — raising the 
 same question (5). If a Court of Equity is of opinion that there 
 has been acquiescence, it will restrain a party from proceeding in a 
 foreign country to compel an account (6). 
 
 4. The fact of a foreigner having property in this country, enables 
 a Court of Equity here, to make effectual an injunction issued to 
 him. But in the case of a foreigner who seeks no assistance from 
 here, the issuing of such injunction ought clearly to be shewn to 
 be required as conduciye to justice (7). 
 
 5. When there is a plain equity in favour of an injxmction, and 
 the representatives of the real and personal property, who seek 
 it, are in this country, the Court will grant it, and restrain pro- 
 ceedings in the Court of a foreign country, and in such a case 
 the Court will decide, upon a consideration of all the circum- 
 stances, and require parties here, to take, or direct such steps in a 
 foreign Court, as the ends of justice require ; but the particular 
 
 (1) Dehon v. Foster, 4 Allen, 545, (N. S.) 745. 
 
 550 ; 7 lb. 57; vide BanJe, §-c. v. But- (6) Good v. Cood, 33 Beav. 814 ; 
 
 land, 2 Wins. 470 (Amr.). 9 Jur. (N. S.) 1335 ; 32 L. J. (Ch.) 
 
 (2) Glenn v. Fowler, 8 Gill. & J. 27 3 ;et vide Norris v. Ghambres, 3 UeG. 
 340 (Amr.). P. & J. 583; 7 Jur. (N. S.) 59, 689 ; 
 
 (3) Lord Portarlington v. SouTby, Ex-Eajah of Goorg v. East India Gam' 
 3 My. & K. 104. pany, 29 Beav. 300. 
 
 (4) Garron Iron Go, v. Maclaren, (7) Garron Iron Go. v. Maclaren, 
 5 H. L. 0. 416. 5 H. L. C. 416. 
 
 (5) Oaheley v. Bamsey, 27 L. T, 
 
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JURISDICTION. 11 
 
 proTisions of the foreign law applicable to a transaction, proceed- Paet I. 
 ings as to which in a foreign Court are thus restrained, must not Seot. 2. 
 be disregarded (1). If there is conflicting evidence, as to whether '~~ 
 
 accounts can be conveniently taken in this country or in Scotland, 
 the Court will not restrain proceedings in a suit in Scotland for 
 the same purpose (2) ; nor will the Court exercise its jurisdiction, 
 to restrain proceedings in the Court of Session in Scotland, if the 
 circumstances of the case render its interference unadvisable ; as 
 where the question between the parties might, upon the whole, be 
 more conveniently litigated, and with a more conclusive result, 
 there, than here (3). The Court of Chancery in England has no 
 power to restrain an Irish creditor from proceeding to recover his 
 claim against tlie estate of an intestate deceased debtor, domiciled 
 and leaving property in Ireland; an Irish creditor cannot be com- 
 pelled to prove his claim in England and to forego his rights to 
 recover in Ireland, he being in no privity with the English suit (4). 
 A Court of Equity in England will not interfere with the action 
 of an American Court, to restrain the negotiation of bills of 
 exchange, which have come into the possession of a party in 
 England, by virtue of a commission issuing out of the American 
 Court, for the purpose of taking evidence upon proceedings there 
 upon the bills ; upon an allegation that the bills came into the pos- 
 session of the party bringing the action in America, and the party 
 in England, an agent of the plaintiff, by a breach of duty. The 
 exercise of such a jurisdiction would be interfering with the action 
 of the American Court, and a violation of the principles of the 
 administration of justice ; the complaint, if any, should be asserted 
 in the American Court (5). A Court of Equity in England will 
 aid the proceedings in a foreign Court competent to decide the 
 questions, by restraining an action at law here, to recover moneys 
 which are part of the subject-matter in dispute, in the foreign 
 Court, between the parties (6). 
 6. The Court of Chancery will interpose by injunction, to restrain 
 
 (1) Carron Iron Go. v. Maclaren, (A) Brovme v. Roberts, 19 W-B,. 155. 
 5 H. L. C. 416. (5) London and Mediterranean 
 
 (2) MaclarenY. Stainion, Maclaren or Bank (^Limited) v. Strutton, 18 W. E. 
 Stainton v. Oarron ao., 2 Jur. (N.S.) 49. 107 ; 21 L. T. (N. S.) 415. 
 
 (3) Jones v. Geddes, 1 Ph. 724 ; (6) Transatlantic Co. v. Pietroni, 
 14 Sim.' 606. Joii. 604. 
 
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12 JUBISDICTION. 
 
 Pabt I. a plaintiff from prosecuting two distinct suits, in different Courts, 
 " l^n ' for the same object, either in this or a foreign country ; but a 
 plaintiff may carry on proceedings in one Court, to establish a 
 demand, and in another Court, to obtain security, which the former 
 Court is unable to give him, for what shall be found due to him (1). 
 If the subject-matter of a suit in Ireland, not brought to a hearing, 
 is the same as that of a suit instituted in the Court of Chancery 
 in England, in which that Court has pronounced a decree refusing 
 the relief sought by the plaintiff, this Court will restrain the 
 plaintiff from prosecuting the suit in Ireland (2). If the pro- 
 ceedings in a foreign Court will enable this Court more satis- 
 factorily to dispose of the question between the parties, this 
 Court will permit such proceedings to go on to an adjudication, 
 but it will not give such permission, where the adjudication of the 
 foreign Court between the parties there, whatever it may be, will 
 preclude the question which the plaintiffs in this Court may 
 think proper to raise against the plaintiffs in the proceedings in 
 the foreign Court ; and where the title of a party does not turn 
 on the law of a foreign country in the first instance, though it 
 may ultimately ; but on a preliminary question (which this Court 
 is not only as competent as the foreign Court to decide upon, and, 
 according to the position of the parties, much more competent, in 
 a case where this Court has all the parties before it) this Court 
 will not allow the proceedings in the foreign Court to go on, in- 
 volving the same question, with the chance of the two Courts 
 arriving at opposite conclusions (3). 
 
 7. A suit between a plaintiff residing in England against defen- 
 dants also residing here, to enforce a lien on immovable property 
 of the defendants, situate out of the jurisdiction of the Court 
 of Chancery in England, reqiiires that some special state of cir- 
 cumstances should exist in order to enable the Court to give 
 any relief of this description (4). 
 
 8. The Court of Session in Scotland lias no power to alter, vary 
 
 (1) Wedderlum v. Wedderlurn, 2 318 ; 8 L. J. (N. S.) Ch. 297 ; 3 Jur. 
 
 Beav. 208 ; 4 My. & Cr. 585. 644 ; vide Bechford v. KemUe, 1 S. & S. 
 
 C2) Booth v.Leycester, 1 Keen, 579; 7; 1 L. J. (Ch.) 5. 
 3 My. & Cr. 459. (4) Norris v. Chamhres, 29 Beav." 
 
 (3) Buribury v. Bunhury, 1 Beav. 246. 
 
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JUEISDICTIOK 13 
 
 or discHarge any order of the Court of Chancery, made under the Pj"*t I- 
 jurisdiction of the Great Seal, which is as much the Great Seal Sect. 2, 
 of Scotland as of England (1). 
 
 9. If the Court of Chancery in England has appointed a guardian, 
 and settled a scheme ' for the education of an infant peer who is 
 entitled to estates in England and Scotland, it will restrain the 
 tutor dative from continuing proceedings in the Court of Session 
 in Scotland, relative to the education, residence, and English 
 estates of the infant, so as to supersede the scheme of the Court 
 of Chancery (2). 
 
 10. Although the fact of an administration decree having been 
 obtained in a Court of Chancery of limited jurisdiction is not 
 a ground for staying proceedings in a Court of general jurisdic- 
 tion for the administration of the same estate, where a portion 
 of the estate is situate beyond the jurisdiction of the inferior 
 Court, yet the superior Court will, if it be advisable, stay the 
 proceedings in the suit in the superior Court (3). 
 
 11. If evidence of the transactions in respect of which proceedings 
 have been taken in Scotland by defendants against a plaintiff — 
 he having property there, and being also a domiciled Scotchman 
 in England, — cannot by the law of Scotland be received there, 
 there is ground for supposing that complete justice cannot be 
 done there; in that case a Court of Equity in England will 
 restrain proceeding with the action in Scotland (4). But if a 
 question, on the whole, is likely to be more conveniently litigated 
 and concluded in Scotland than here — notwithstanding there may 
 be a suggestion of fraud, and the remedy in cases of fraud may 
 be more effectual here than in Scotland — a Court of Equity in 
 England will not restrain the prosecution of a suit in Scotland (5). 
 Still, if it appears to a Court of Equity here, that there are ques- 
 tions between the parties which can be more conveniently deter- 
 mined in this country, the Court will restrain proceedings in a 
 
 (1) S.ut&, (Marquis) v. Stuart, 2 (3) Wynne v. Hughes, 5Jur. (N. S.) 
 
 Giff. 582 ; 4 Macq. H. L. C. 1. ^ 165 ; 28 L. J. (Ch.) 283 ; 32 L. T. 326. 
 
 , (2) Bute (Marquis) v. Stuart, 2 (4) Ainslie v. Sims, 23 L. J. (Oh.) 
 
 Giff. 582, affirmed on appeal suh.. 161. 
 
 nom. Stuart v. Moore, i Macq. H. L. (5) Jones v. Oeddes, 1 Ph. 724 ; 14 
 
 C. 1. Sim. 606. 
 
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14 JUEISDICTION. 
 
 PaetI. foreign country (1). If Courts of Scotland have power to pre- 
 Seot. 2. serve property pendente lite instituted there, a Court of Equity 
 ~ here, has no jurisdiction to that end (2). Although the Court 
 of Chancery has undoubted jurisdiction to restrain persons from 
 prosecuting proceedings in the Court of Session in Scotland, yet 
 that will not authorize the Court in doing so, if the Court of 
 Session has a competent jurisdiction (3). But whether property 
 is to be administered according to English or Scottish notions of 
 Equity (which in many material points differ) must depend, when 
 a cause is heard, on the national character of the individuals, 
 and the character of the property which the decree affects (4). 
 As to real estate in a foreign country, the Court of Chancery 
 in England will not interfere ; but if proceedings there relate 
 to personalty as well as realty, they ought to be restrained 
 altogether, if it cannot be shewn that the proceedings there, can 
 be carried on, as to the landed estate, without proceeding as to 
 the personal estate (5). 
 
 12. If the matters in question may properly be the subject of 
 adjudication in a suit in a colony, the Court of Chancery will not, 
 on the ground of error or irregularity in the decree of the colonial 
 Court, interfere by injunction to restrain proceedings in the 
 Colony, inasmuch as the Privy Council is the Court of Appeal 
 from the Colonial Court, and has jurisdiction to stay the execution 
 of the decree pending the appeal (6). Though there is juris- 
 diction in the Court of Chancery upon a contract concerning an 
 estate of the colony, yet where the question, upon the construction 
 of a contract for a security, by way of mortgage, has been before 
 a Court of competent jurisdiction in the colony, and a foreclosure 
 and sale directed, and there are merely . general allegations of 
 fraud, which are denied, these circumstances preclude the Court 
 from exercising any jurisdiction (7). 
 
 13. When the Courts of one country are called upon to enforce 
 
 (1) Bunhwry v. Bunhury, 1 Beav. (4) lb. 
 
 318; 8 L. J. (N. S.) Ch. 297; 3 Jur. (5) Hope v. Carnegie, L. E. 1 Ch. 
 
 644. 320; 14 W. R. 260. 
 
 (2) Cruikshank v. Solaris, 6 Madd. (6) ffenderson v. Henderson, 3 Hare 
 104. 100. 
 
 (3) Kennedy v. Oassilis {Earl of) (7) White v. Hall, 12 Ves. 321. 
 2 Sw. 313, 321, 326. 
 
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JUEISDICTION. 15 
 
 contracts entered into in another country, the question to be PaetI. 
 considered is not merely whether the contract sought to be Sect. 2. 
 
 enforced is valid according to the laws of the country in which 
 it was entered into, but whether it is consistent with the 
 laws and policy of the country ia which it is sought to be en- 
 forced; for if any part of the contract be inconsistent with 
 the law and policy of the latter country, the contract will not 
 be enforced, even as to another part of it which may not be 
 open to this objection, and may be the only part remaining to be 
 performed (1). 
 
 14. A Court of Equity will grant a perpetual injunction to stay 
 proceedings at Law in England, against a foreigner, for the seizure 
 of estates of English subjects in the foreign land as confiscate, for 
 an act done in violation of letters patent granted to the foreigner, 
 by the king of the foreign country, where the seizure has been 
 sanctioned by the judgments of the Courts of the foreign nation, 
 and an execution has been had in pursuance thereof; after all 
 this, to send the case to a trial at Law, or submit it to a common 
 jury, would be monstrous and absurd (2). 
 
 15. Although the Court may not be prepared to say how far it 
 will finally give redress, yet it will grant an injunction against 
 proceedings at Law on securities, if they have been obtained 
 by duress by one resident foreigner against another, under 
 an obligation entered into in a foreign country as surety, which, 
 according to the law of that country, could not afifect the 
 person (3), 
 
 16. If a Court of Equity has concurrent jurisdiction with a Court Couvtaof Law. 
 of Law, and has assumed such jurisdiction by interfering to pro- 
 tect the rights of the parties, it will restrain parties to the con- 
 tract from bringing actions at Law, founded on the facts with 
 
 regard to which the Court has interfered, and in which actions, the . 
 same question of the legal effect of the agreement, and in the cir- 
 cumstances, would necessarily arise (4). Such a Court will restrain 
 by injunction the proceeding in an action, in cases where the rights 
 of the parties thereto, in reference to the subject-matter of the 
 
 (1) Hope V. Eope, 8 De G. M. & Gr. (3) Talleyrand v. Boulanger, 3 Ves. 
 731 ; 22 Eeav. 351. 447. 
 
 (2) Blad V. Bamfield, 3 Sw. 604. (4) Brenan v. Preston, 10 Hare, 331. 
 
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16 JURISDICTION. 
 
 Pabt I. action, are being determined in a suit in CEancery (1), or have 
 
 Ohattpr T .. • • • 
 
 Sect. 2. ' been determined there (2). So it will interpose by injunction, 
 although the Court of Law might, from the form of action, advert 
 to the equities of the parties (3). Still, in cases of concurrent 
 jurisdiction, although proceedings may have been first instituted 
 in a Court of Equity, the Court of Equity will not, on an inter- 
 locutory application, grant an injunction to restrain an action at 
 Law, commenced immediately after the filing of the bill, where the 
 defendant desires to try the question at Law, and the balance of 
 convenience is in favour of a trial at Law (4). And where pro- 
 ceedings at Law have been taken shortly before filing a bill in 
 respect of the same matter, although the Court of Chancery may 
 have complete jurisdiction in the case, yet if a Court of Law be 
 the more proper tribunal for dealing with the case, the action will 
 not be restrained (5). In cases of concurrent jurisdiction, the 
 Courts of Chancery ought not to interfere with proceedings at 
 Law, unless it has better means of doing justice between the 
 parties than are possessed by a Court of Law. That may be the 
 case, either because a Court of Equity is able to give a more per- 
 fect remedy, or because the nature of the case admits of its being 
 better tried by the procedure of such a Court than by a Court of 
 Law (6). But if there be an equitable case stated by a bill, there 
 is jurisdiction in Equity to interfere by way of injunction to re- 
 strain proceedings at Law if necessary, even assuming the juris- 
 diction to be not exclusively in Equity (7). 
 
 17. If relief, which is the proper subject of the jurisdiction of 
 another Court, be dependent upon relief to be given in a Court of 
 Equity, or if the relief,, which is properly a subject for this Court, 
 
 (1) Laing v. Zeden, 19 W. E. 273 ; (5) Clarke v. Chappie, 29 L. T. 
 
 23 L. T. (N. S.) 587; 40 L. J. (th.) (N. S.) 204. 
 
 . 155 ; vide Bdberts v. Maddochs, 13 Sim. (6) Ochsenbein v. Papelier, L. E. 8 
 
 549. Oh. 695 ; 42 L. J. (Oh.) 861 ; 21 W. E. 
 
 Ci) Flights. O/iamire, 14 Jur. 123. 516; 28 L. T. (N. S.) 459; et vide J 
 
 (3) Meux V. Smith, 1 M. D. & De Anderson v. Laml, 21 W. E. 764 ; 
 G. 396 ; 2 M. D. & De G. 315, 789 ; Kemp v. Tucker, L. R. 8 Oh. 369 ; 42 
 11 Sim. 410. L. J. (Oil.) 532 ; 21 W. E. 470 ;' 28 
 
 (4) Eoare v. Bremhridge, L. K. 8 L. T. (N. S.) 458. 
 
 Oh. 22 ; 21 W. E. 43 ; L. E. 14 Bq. (7) TraUl v. Baring, 4 De G. J. & 
 
 522 ; 27 L. T. (N. S.) 368, 593 ; 42 S. 318. 
 L. J. (Oh.) 1. 
 
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JUEISDICTION. 17 
 
 cannot te given, except that which belongs to another jurisdiction Part i. 
 be also given, the Court, to prevent multiplicity of suits, may give Seo™2. ' 
 
 both kinds of relief; but if the relief which is sought in a suit 
 
 be of different kinds, within the jurisdiction of different Courts, 
 and independent of each other, although relating to the same 
 transaction, the right in this Court to one kind of relief will not 
 necessarily draw along with it the right to the other (1). 
 
 18. The Courts of this country will apply the general law of 
 this country — being founded on abstract principles of justice, and 
 not upon any peculiarities of system — to the questions relating to 
 lauds in a colony, for instance, between a mortgagor and mort- 
 gagee of lands in a colony, unless it is suggested that there is a 
 peculiarity in that respect, in the law of the colony, and will 
 restrain a party from enforcing the payment of a security, unless 
 he will indemnify the defendant at Law from any consequences 
 that, may arise to the defendant at Law from the consequences 
 of the omission of an act by the plaintiff at Law in its nature 
 merely formal, but necessary in the colony for the protection 
 of the defendant at Law (2). 
 
 19. A Court of Equity will not refuse to interfere when the 
 remedy is more complete and perfect in Equity than it is at 
 Law (3). But if a matter is within the exclusive jurisdiction of 
 the Courts of Common Law, a Court of Equity will not inter- 
 fere (4). Thus, if fraud can be pleaded in an action, a Court of 
 Law. is the proper tribunal, a jury being able to appreciate the 
 value of the evidence (5). Where a Court of Common Law has 
 -clearly jurisdiction, a Court of Equity will not restrain an action 
 commenced before the institution of the suit ; a Court of Equity 
 only interferes where there are equitable circumstances which 
 render it unjust, as against the defendant at Law, that the action 
 should go on (6). But such a Court has no jurisdiction to do so, on 
 the ground that a Court of Law is miscarrying, or that an Act of 
 
 ,(1) OasfelU V. Cook, 7 Hare, 89. (5) Fennelly v. Ranscellot, 19 W. E- 
 
 (2) Bentinch v. Willinh, 2 Hare, 1, 8. 966. 
 
 (3) Buncombe v. Oreenacr^, 8 W. E. (6) Portsmouth (Earl of) v. Part- 
 ,657; 6 Jur. (N. S.) 987. ridge, 8 W. E. 658; et vide Worms 
 
 (4) Elhorough v. Ayres, 18 W. E. {Baron de) v. Mellier, L. E. 16 Eq. 
 913; 39 L. J. (Oh.) 601; 23 L. T. 554. 
 
 (N. S.)68. 
 
 C 
 
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18 JURISDICTION. 
 
 Paet I. , Parliament is absurd (1). A Court of Equity will not decide upon, 
 ^S^n/' or interfere with, an order of a Common Law Court, if the questions 
 are such as ought to be, decided by such a Court, and arise out of 
 the peculiar procedure and practice of such Courts ; although no 
 doubt that ought to be done by a Court of Equity, if injustice were 
 wrought by not deciding (2). Such a Court has no jurisdiction to 
 restrain the enforcing of a judgment, on the ground that the action 
 was brought under circumstances amounting to the Common Law 
 offence of maintenance (_3). It is riot of itself a sufficient ground 
 to obtain an injunction in the Court of Chancery, to restrain pro- 
 ceedings on a matter in the King's Bench in England, that an 
 injunction has been granted, on an interlocutory application in the 
 Court of Chancery in Ireland, to restrain proceedings at Law there; 
 but a final judgment may be different (4). The Court, under 
 special circumstances, will, on the application of one defendant, 
 restrain a co-defendant from proceeding with an action (5). So 
 on a motion of the plaintiff, it will restrain an action by one 
 defendant against a co-defendant (6). 
 
 20. Equity will restrain by injunction, not only the suit at Law 
 itself, but also the introduction of evidence in such suit, which, 
 though perhaps legally admissible, is manifestly contrary to right 
 and justice (7). Equity will sometimes aid, as well as restrain a 
 suit at Law, by injunction. Thus an injunction will be granted 
 to restrain the assignor of an equitable claim from dismissing a suit 
 
 ^ for such claim, brought in his name, by the assignee (8). So, in a 
 case of necessity, a Court of Equity will interfere to prevent a 
 defendant from affecting property in litigation, by contracts, con- 
 veyances, or other acts, or order security therefor (9). 
 
 21. Although the writ of audita querela is said to be in the nature 
 
 (1) Portsmouth {Earl of) v. Part- (6) Kingham v. Maisey, 2 Sim. 
 ridge, 8 W. E. 658 ; et vide Worms 41. 
 
 (£(H-om(ie)v.JlfeZZjer,L. E. 16Eq. 554. (7) Welh v. Bridgeport, &c., 43 
 
 (2) Le Ckrc v. Oreene, 22 W. E. Conn. 316 (Amr.) 
 
 •428, 430. (8) Deaver v. EUer, 7 Ired. Bq. 24 
 
 (3) Ellorough v. Ayres, 18 W. R. (Amr.); et vide People of Kent \. Kent, 
 913; 39 L. J. (Cli.) 601 ; 23 L. T. 6 Cal. 89. 
 
 (N.S.) 68. (9) Miller v. Washburn, 3 Ired. 
 
 (4) Ball T. Storie, S. & S. 210. (Ch.) 161 (Amr.); Oottrell v. Moody, 
 
 (5) Edgecmnbe v. Carpenter, 1 Beav. 12 B, Morr. 500 (Amr.). 
 
 171. 
 
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JUBISDICTION. 
 
 19 
 
 of a bill in Equity to be relieved against the oppression of the p^^"'^^- 
 plaintiff (1), yet the defendant at Law is not, either by the exis- Sect. 2. 
 tence of that remedy, or by having unsuccessfully resorted to it, 
 precluded from bringing his original bill in Equity for relief 
 against the plaintiff, in a case where the Court of Law has set 
 aside the writ in a summary proceeding ; but it is a matter of 
 doubt whether the fact that a writ of audita qiiereld has been 
 obtained, and is in force, will preclude a bill in Equity by the 
 same defendant on the same ground (2). 
 
 22. If the question is concluded by a judgment of the House of 
 Lords, the Courts below will refuse an injunction in a similar 
 case (3). When a Court of Equity withholds granting relief until 
 a right is established at Law, it is bound by the decision at Law, 
 except upon the point of damages awarded by the jury, as to the 
 amount of which, in such a case, the Court is not bound, and will, 
 if it thinks proper, direct an inquiry to be made as to the damage 
 sustained. But there are two classes of cases in which the Court 
 will give a decree not in accordance with a verdict : one, in which 
 the trial has taken place before itself, and it has full cognisance 
 of the matter ; the other, in which it has directed an issue to be 
 tried, the object of which is merely to inform the conscience of the 
 Court (4). If, whilst suits are depending in the Court of Chancery, 
 the plaintiffs indict the defendant's agent at the sessions, where 
 they themselves are judges, for a breach of the peace, an order will 
 be made to restrain the plaintiffs from proceeding at the sessions 
 till the hearing of the cause and further order ; still there is no re- 
 straining power over criminal prosecutions in this Court, but the 
 Attorney-General will, of course, grant a nolle prosequi to a criminal 
 prosecution, where an action of trespass will lie ; and pendente lite 
 in the Court of Chancery, this Court will stop an action of trespass 
 vi et armis ; and where a bill is brought to grant possession, if, 
 after that, the plaintiff prefers an indictment for forcible entry, 
 this Court will stop the proceedings upon such indictment (5). 
 
 (1) 3 Bl. Com. 406. (4) McBea v. Holdsworth, 18 W.E. 
 
 (2) Williams v. Roberts, 8 Hare, 315. 489. 
 
 (3) Maclaren v. Staintpn, Maclaren (5) Mayor, dtc. of YorJe v. Pilking- 
 V. Carron Company, 26 L. J. (Ch.) 332 ; ton, 2 'Atk. 302 ; 9 Mod. 273. 
 
 21 Beav. 152. 
 
 O 2 
 
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20 
 
 JURISDICTION. 
 
 Pakt I. 
 
 Chaptee I. 
 
 Sect. 2. 
 
 The Mayor's 
 Conrt. 
 
 Admiralty 
 Court. 
 
 23. The fact that a plaintiff's title is equitable, and not legal, 
 entitles him to the aid of a Court of Equity in the trial of his 
 rights ; and this Court will, in such a case, restrain proceedings 
 in the Mayor's Court (1). So if a defendant is pursuing an in- 
 equitable course — as, for instance, where plaintiff and defendant 
 are both foreigners, and the defendant is endeavouring to obtain 
 possession of a fund, contrary to the law of the country of the 
 plaintiff and defendant — the Court of Chancery will restrain pro- 
 ceedings by t^e defendant in the Lord Mayor's Court, by way of 
 attachment, to obtain possession of the fund (2). 
 
 24. There is no doubt of the jurisdiction of the Court of 
 Chancery to grant an injunction to stay proceedings on a bot- 
 tomry bond in the Admiralty Court, where the transaction requires 
 investigation and the subject matter is within the jurisdiction of 
 the Court, and equities to be settled, before complete justice can 
 be done, which can only be satisfactorily secured in the Court 
 of Equity (3). But the Court of Chancery will not interfere 
 to enjoin the officers of the Court of Admiralty, called upon the 
 King's warrant to do an act with reference to the proceeds 
 arising from a prize, declared by the Admiralty Court a droit to 
 the Crown. No Court is authorized to look at such a property 
 as any other than as belonging to the Crown, and it would mili- 
 tate against the policy for which the right is vested in the Crown, 
 for this Court to interfere (4). Nor will the Court grant an 
 injunction where the Admiralty has jurisdiction to determine 
 whether a document has been obtained by duress and imprison- 
 ment, and is able to suppress it, of its own authority (5). There 
 is no difficulty or question as to the existence of the jurisdiction 
 of a Court of Equity to enforce the rights of some against the 
 other part-owners of a ship, with regard to the management of 
 the ship and the possession of the certificate of registry, where 
 those rights are regulated by an agreement entered into between 
 all the owners of the ship, it being the province of such a Court 
 to deal with the agreement of the parties (6). So a Court of 
 
 (l)Cotesworthy.Stephens,4:Tla,Te,185. 
 
 (2) Jacob V. Friedburg 21 W. R. 353. 
 
 (3) Duncan v. M'Oalmont, 3 Beav. 
 409. 
 
 (4) Nicol V. Ooodall, 10 Yes. 155 ; 
 vide Anon., 3 Atk. 850. 
 
 (5) Anon., 3 Atk. 350. 
 
 (6) Darby v. Baines, 9 Hare, 369. 
 
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JURISDICTION. 21 
 
 Equity will grant an injunction to restrain proceedings in the PamI. 
 Admiralty Court, respecting a bottomry bond and freight of a Seot. 2. ' 
 
 ship, if that Court can more conveniently, directly, and effectually 
 compel a defendant to do all that is necessary for the full and 
 satisfactory investigation and determination of the rights of the 
 parties, than the Court of Admiralty (1). So where the shares in a 
 ship are not ascertained, the Court of Admiralty not having juris- 
 diction in such a case, to restrain the sailing of the ship until the 
 share of the party complaining shall be ascertained and security 
 given to the amount of it, the Court of Chancery will grant an in- 
 junction for that purpose (2). But if the shares in a vessel are as- 
 certained, though a part-owner is entitled to an account against the 
 master and other part-owners, yet a Court of Equity will not re- 
 strain the sailing of the ship until security is given for the plaintiff's 
 shares, according to the practice of the Admiralty Court (3). 
 
 25. There is no relief in Equity against a judgment upon a 
 security given for performing the sentence of a Court of Admi- 
 ralty, although reversed on appeal, where the Court to which 
 the appeal has been made, has no jurisdiction. Such a reversal 
 is not only informal, but utterly null and void, and the conse- 
 quence thereof is, that the first sentence becomes the final sen- 
 tence, for non-performance of which, the security is forfeited (4). 
 
 26. An injunction will be granted to restrain proceedings in the Probate 
 Probate Court to set aside a will contrary to agreement (5). ^°™^- 
 Although the Court of Chancery has jurisdiction to restrain pro- 
 ceedings in the Court of Probate, yet if an agreement, made with 
 
 the intention of giving effect to a will believed by the parties 
 thereto to exist, is of such a character that it will not prevent 
 a party thereto from proceeding to take out administration, the 
 Court will not restrain him from so doing ; the question of will 
 or no will must be determined, and the Court of Probate is the 
 place in which it must be determined (6). If the validity of a 
 
 (1) Drnican r. M' Galmonf, 3 Beav. Eep. t. Pinoli, 437; vide Love v.. 
 409, 417. Baher, 1 Oh. Ca. 67 ; Nelson, 103. 
 
 (2) Ealy v. Qoodson, 2 Mer. 77. (5) Oascoyne v. Chandler, 3 Sw. 
 
 (3) CastelU v. Cooh, 7 Hare, 89 ; et 148 ; Dick. 281. 
 
 vide EaUoran v. Donal, 9 Ir. Bq. Rep. (6) WilcocJcs v. Carter, L. E. 10 
 
 21. Ch. 440, 443; 23 W. R. 530 ; 32 L. T. 
 
 (i) Denew.v. Stock, 3 Sw. 662; (N. S.) 444. 
 
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22 
 
 JURISDICTION. 
 
 Paet I. 
 
 Chapter I. 
 
 Sect. 2. 
 
 Divorce and 
 Matrimonial 
 Court. 
 
 will has been already determined, and it has been acted upon, 
 Equity will restrain proceedings in a Probate Court to controvert 
 it (1). The old rule that the Court of Chancery would not 
 admit a bill of discovery in aid of the jurisdiction of the Eccle- 
 siastical Court, is not applicable to a bill for discovery in aid of 
 proceedings in the Probate Court, that Court not having the same 
 power of compelling discovery as the Ecclesiastical Court had (2). 
 And after interrogatories have been filed, the Court will allow a 
 motion to be made for an injunction to restrain proceedings in the 
 Probate Court until answer (3). 
 
 27. A Court of Equity will restrain proceedings by a husband 
 against his wife in the Divorce Court, for restitution of conjugal 
 rights, in violation of a covenant not to compel cohabitation 
 by any legal proceedings, such a covenant being no defence in 
 that Court (4). But if a contract can be set up in the Divorce 
 Court as a defence against a suit by the husband for a divorce — 
 as, for instance, an agreement not to sue in the Divorce Court in 
 respect of any cause of complaint which had arisen before the 
 date of the deed— a Court of Equity will not interfere to stay 
 proceedings in the Divorce Court (5). A Court of Equity will 
 not interfere to compel or restrain the payment of alimony, as 
 such, except so far as to grant a writ of we exeat against the 
 husband (6). But if a question arises ia a separation deed, as to 
 whether the provision for the wife excludes the right in alimony, 
 the Court will not restrain proceedings in the Divorce Court for 
 the purpose of obtaining alimony, pending a suit there for judicial 
 separation ; but it will put the wife under an undertaking to deal 
 with any order the Divorce Court may make as to alimony, as 
 the Court of Equity shall direct (7). 
 
 (1) Sheffield v. Suckinghamshire 
 (Duchess of), 1 Atk. 628. 
 
 (2) Fuller v. Ingram, 5 Jur. (N. S.) 
 510 ; 7 W. E. 302. 
 
 (3) lb. 
 
 (4) Eunt V. Hunt, 31 Beav. 89; 
 31 L. J. (Oh.) 161 ; 8 Jur. (N. S.) 85 ; 
 10 W. E. 215 ; 5 L. T. (N. S.) 778. 
 
 (5) Brown v. Brown, L. E. 7 Eq. 185 ; 
 38 L. J. (Ch.) 153; 19 L. T. (N. S.) 
 
 594; 17 W. R. 98. See further as to 
 this paragraph, Wilson v. Wilson, 5 
 H. L. 0. 40; 23 L. J. (Oh.) 697; 
 Saunders v. Rodway, 16 Beav. 287 ; 16 
 Jur. 1005 ; Worrall v. Jacob, 3 Mer. 
 269 ; Legard v. Johnson, 3 Ves. 352. 
 
 (6) Vandergucht v. De Blaquiere, 
 5 My. & Cr. 229 ; 8 Sim. 315. 
 
 (7) Williams v. Baily, L. R. 2 Eq. 
 731. 
 
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JURISDICTION. 23 
 
 28. A Court of Equity has jurisdiction to give time The Privy P^t I. 
 to apply to the Judicial Committee of the Privy Council "' ' Seot. 2. 
 
 for liberty to appeal, or to apply to a Court of Law for liberty 
 to plead to an action on a judgment (1). 
 
 29. Courts of Equity will not, in general, restrain, nor is it their Applications 
 practice, in general, to restrain parties from applying to the laturl ^^'^" 
 Legislature, whether of this or of a foreign country (2). Appli- 
 cations to Parliament on public and on private grounds, are dis- 
 tinguishable ; the latter may, in a proper case, be restrained, but 
 the former cannot in any case be restrained by injunction ; and 
 although a Court of Equity has undoubted jurisdiction to prevent 
 the breach of an agreement not to apply for an Act of Parliament, 
 yet, where the agreement is, not to apply to Parliament for a 
 measure affecting the public benefit, the Court will decline to 
 interfere (3) ; and it is not necessary to decide, whether such a 
 contract is void in itself on the grounds of public policy (4). 
 Bills on public objects, if passed, will be passed on public grounds, 
 which a Court of Equity cannot try; while, if such bills are 
 rejected, the inconvenience of opposing them will be compen- 
 sated in damages for a breach of any agreement not to apply to 
 Parliament, assuming the agreement to be legal (5). But there 
 is no doubt whatever, as to the jurisdiction of a Court of Equity 
 to interfere, where the right of a party to petition Parliament 
 against a bill pending there, depends solely on his having some 
 private property or interest which is likely to be affected by it, 
 and not as representing any interest of the public, or for the 
 purpose of making any communication to Parliament ; and such 
 a Court has the same jurisdiction to restrain him by injunction 
 from petitioning against a bill in Parliament, as it has to restrain 
 him from bringing an action at Law, or from asserting any other 
 right connected with the enjoyment of the property or interest 
 which he claims (6), 
 
 (1) Jack V. Tease, 12 Ir. Ch. Eep. 279. (4) lb. 
 
 (2) Bill V. Sierra Nevada Lalee (5) lb. 
 
 Water and Mining Go., 1 De G. (6) Stockton and Eartlepool Bailw. 
 
 P. & J. 177 ; 6 Jur. (N. S.) 184. Co. v. Leeds and Thirsh and Clarence 
 
 (3) Lancaster & Carlisle Eailw. Co. Bailw. Cos., 2 Ph. 666 ; 5 Eailw. Cas. 
 V. North Western Bailw. Co., 2 K. & J. 691, 695. 
 
 293 ; 25 L. J. (Ch.) 223. 
 
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24 
 
 JUEISDIOTION. 
 
 Paet I. 
 
 Chapter I. 
 
 Sect. 2. 
 
 Administra- 
 tion decree. 
 
 Wills. 
 
 Public 
 functionaries 
 — Special 
 ti'ibunals. 
 
 30. In the cases in which the Court of Chancery interferes to 
 restrain creditors from proceeding either in the Courts of this 
 country, or in foreign Courts for the recovery of their debts, the 
 Court of Chancery does not interfere before decree, and its in- 
 terference after decree is founded on this, that the decree is a 
 judgment for all the creditors. Besides, that Court has, by the 
 decree, the complete control of the estate, and it will not permit 
 its jurisdiction to be interfered with (1). So if another Court in 
 England has made a decree for the administration of an estate, 
 the Court of Chancery will restrain proceedings at Common Law 
 against the personal representative, as, for instance, where a 
 decree for admininistration has been made in the Chancery Court 
 of Lancaster (2). • 
 
 31. A Court of Equity will restrain a party from disputing a 
 will in the proper Court for proving wills, after a decree has been 
 made in the Court of Equity confirming the will (8). Courts of 
 Equity and Courts of Law will supervise the acts of a Court for 
 proving wills, when they are incidental to their own determinations. 
 If an instrument comes before a Court of Equity which appears 
 not to be an act inter vivos, in order to found a decree upon it as a 
 testamentary act, it is necessary to prove it in the proper Court 
 fcr proving wills ; but if that Court proves there, what is an act 
 inter vivos, a Court of Equity will consider the probate as void 
 and coram nonjudiee (4). 
 
 32. The limits within which a Court of Equity interferes with 
 the acts of a body of public functionaries, are perfectly clear and 
 unambiguous. So long as those functionaries strictly confine them- 
 selves within the exercise of those duties which are confided to 
 them by the law, a Court of Equity will not interfere. The Court 
 will not interfere to see whether any alteration or regulation 
 which they may have directed is good or bad ; but if they are 
 departing from that power which the law has vested in them — if 
 they are assuming to themselves a power over property which 
 
 (1) Pennell v. Hoy, 3 De G. M. & 
 G. 126, 137 ; vide Jtatcliff v. Winch, 
 16 Beav. 576. 
 
 (2) Dowiies V. Jackson, 14 W. E. 
 907. 
 
 (3) Bucleingham v. JBuckingham, 
 2 Eq. C. Ab. 526 ; Sheffield v. Buck- 
 inghamshire, 1 Atk. 628. 
 
 (4) Pigott V. T Anson, 1 Eden, 
 469. 
 
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JURISDICTION. 25 
 
 the law did not give them, the Court no longer considers them Paet i. 
 as acting under the authority of that law, but treats them, sbot. 2. ' 
 
 whether they be a corporation or individuals, merely as persons ~ 
 
 dealing with property without legal authority (1). But no equity 
 
 can be founded on an allegation that a Court legally constituted, is 
 
 not properly competent to decide questions within its jurisdiction. 
 
 If the Legislature has given jurisdiction to a Court provided by 
 
 an Act, and has made its decision final, if any inconvenience arises 
 
 from the legal exercise of the jurisdiction, the Legislature alone 
 
 can apply a remedy (2). Still, if a person in whose favour an 
 
 adjudicp,tion has been made by a special jurisdiction — for instance, 
 
 commissioners or the Privy Council — to award compensation for 
 
 confiscation of property, is affected by a trust or by fraud, the 
 
 Court has jurisdiction to enforce the trust or relieve against the 
 
 fraud (3). 
 
 33. The Courts exercise over the Attorney-General the same 
 authority which they exercise over every other suitor, and the 
 Attorney-G-eneral will not, any more than any other suitor, be 
 permitted to prosecute any proceeding which is merely vexatious 
 or has no legal object (4). 
 
 34. A suit in a, Court of Equity, properly instituted, will Time running, 
 prevent time from running, and a Court of Law ought to act upon 
 
 this principle, the same rule being prescribed by the statute for 
 both Courts. Such a Court, however, will protect its own juris- 
 diction, and will not permit a suitor to be evicted at Law who has 
 an equitable right to sue for the land, and has filed his bill within 
 the limits allowed, and duly pursued his remedy (5). 
 
 (1) Frewen v. Lawis, 4 My. & Or. (4) The Queen v. Prosser, 11 Beav. 
 249, 254 ; 9 Sim. 66. 306. 
 
 (2) Barnshy Canal Company v. ' (5) Wrixon v. Vize, 3 D. & War. 
 Twihell, 7 Beav. 19; 13 L. J. (Ch.) 434. 104 ; 2 Con. & L. 138 ; 1 Con. & L. 
 
 (3) Bill V. Reardon, 2 Euss. 608 ; 298 ; 2 D. & War. 192. 
 2 S. & S. 43U 
 
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( 26 ) 
 
 CHAPTER II. 
 
 The Geneeal Doctrines and Pkinciples op the Law of 
 
 Injunctions. 
 
 Sect. 1. Eqmtahle Bights — Egmtalle Pleas at Law. 
 
 Past I. 1. If the right of a plaintiff, if any, is an equitable and not 
 
 a legal right, he is entitled to the aid of a Court of Equity in the 
 trial of that right, and such a Court will restrain proceedings in 
 any other Court that has no jurisdiction to try an equitable 
 right (1). If a Court of Law refuse to try, or cannot try, an 
 equitable right, a Court of Equity will stay the proceedings in 
 the Court of Law, and enforce the equitable right (2). 
 Equitable 2. A party will not have lost his right in Equity, by setting up a 
 
 pleas at aw. ^gfgjjgg ju a,n action at Law, by an equitable plea which has been 
 demurred to, in such a way as to leave the equitable ground 
 untouched (3). A defendant in a Court of Law, which also has 
 equitable jurisdiction, who has not chosen to exercise his option 
 of putting in an equitable plea, is nevertheless entitled in Equity 
 to restrain the proceedings, and set up his equitable case (4). 
 The fact that a party has pleaded an equitable defence at Law, 
 does not preclude him from proceeding on other equitable grounds, 
 to restrain the action, as where the defence in Equity is based 
 upon the forms and practice which govern a Court of Equity (5). 
 If a defendant at Law, who has pleaded an equitable plea to which 
 a replication has been made, set up as a plaintiff in Equity, the 
 same case as in his equitable defence at Law, if there is nothing to 
 
 (1) Cotesworth v. Stephens, 4 Hare. (4) Oompertz v. Pooley, 4 Dv. 448 ; 
 185. Kingsford v. Sviivford, 5 Jur. (N. S.) 
 
 (2) Farguharson v. Pitcher, 2 Buss. 261. 
 
 81. (5) Prothero v. Phelps, 7 De G. M. 
 
 (3) Evans v. Bremridge, 8 De G. M. & G. 722. 
 & G. 100. 
 
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GENERAL DOCTRINES AND PRINCIPLES. 27 
 
 shew that additional matters also set up, cannot be as well adindi- „ ^^^ i-„ 
 
 . . ■" Chapter II. 
 
 cated upon at Law as in Equity, he will not be entitled to restrain Sect. l. 
 
 the proceedings at Law (1). Where a defendant at Law pleads 
 an equitable plea, a Court of Equity will not interfere by injunc- 
 tion to restrain the action on grounds identical with those averred 
 in the plea, if the Court of Law can give the same relief as 
 a Court of Equity ; but Equity will in such a case interfere, if 
 a Court of Law cannot give such relief as a Court of Equity, or if 
 the case cannot be determined there on the merits, or if the cir- 
 cumstances are such that a Court of Equity would grant an 
 injunction such as the Court of Law could not award (2). If a 
 Common Law Court refuse to permit a defendant to plead an 
 equitable plea, where it is one that Equity would havo' allowed, 
 the defendant is entitled in Equity to restrain the proceedings at 
 Law (3). 
 
 Sect. 2. Legal Bights — Legal Title. 
 
 1. If there is any doubt as to the exclusive legal title of a party 
 claiming an injunction in aid of that legal title, a Court of Equity 
 will not exercise jurisdiction, without giving an opportunity of 
 trying the legal title (4). Where equitable relief by way of 
 injunction is sought in aid of a legal right, a Court of Equity, 
 unless such right is clear, will not, except with the consent of both 
 parties, declare the legal right and grant a perpetual injunction 
 founded on such declaration, but will require the question to be 
 first tried (5). 
 
 2. If a plaintiff's title js doubtful, and depends on questions more 
 suitable for a trial at Law, and the injury is not very material, and 
 has been in progress with the plaintiff's knowledge, and is com- 
 pleted before the filing of his bill, the Court will not try the legal 
 question of title, but leave him to try it at Law, and if he succeed 
 
 (1) Farebrpther v. Welchman, 3 Dr. (3) Magnay v. The Mines Boyal 
 122 ; 24 L. J. (N. S.) Ch. 410 ; 1 Jur. Company, 3 Dr. 130. 
 
 (N. S.) 126. (4) Bmrnwdl v. Ealeomh, 3 My. & 
 
 (2) Waterlow v. Bacon, L. R. 2 Eq. Cr. 737, 736. 
 514 ; 12 Jur. (N. S.) 614. 
 
 (5) Gardiff (Mayor, &c.) v. Cardiff Waterworks, 4 De G. & J. 596. 
 
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?8 GENERAL DOGTEINES AND PRINCIPLES. 
 
 Past I. he may then seek the aid of the Court of Equity (1). Still the 
 Sect. 2. mere existence of doubt is not sufficient to prevent the Court from 
 grantinganinjunction; such a doctrine would interfere theoretically 
 and practically with the jurisdiction of the Court daily exercised, 
 to a very great extent. The circumstances of the legal right being 
 in doubt, is a matter for serious attention, but does not render it 
 incumbent on the Court to refuse an injunction ; the Court must 
 be guided by a discretion according to the exigencies and the 
 nature of each particular controversy (2). Bat Courts of Equity 
 may now determine legal rights, where equitable relief is conse- 
 quent upon, or ancillary to, their establishment ; and in such 
 instances (unless the balance of convenience is otherwise), if a 
 plaintiff has a reasonably clear legal title, he need not first 
 establish his right by an action (3). Although there be a submis- 
 sion to an injunction restraining the violation of a legal instru- 
 ment, yet a Court of Equity will not make any further declara- 
 tion of the legal rights, with reference to possible future acts (4). 
 3. On a bill to restrain the exercise of a legal right, it is the duty 
 of the plaintiff to satisfy the Court, that there are substantial 
 grounds for doubting the existence of the legal right (5). When 
 a plaintiff comes for an injunction to restrain a defendant from the 
 prosecution of his legal right, there are several things to be con- 
 sidered ; not only is .the amount of the injury which might be done 
 to be taken into account, but also the extent to which the decision 
 at Law upon the subject could go, and the degree of certainty, 
 more or less, in reference to that decision ; and taking these several 
 matters into consideration, the Court will, in some cases, refuse to 
 interfere at all, and in others, refuse to interfere otherwise than by 
 J)ostponing the question for a time, and giving the opportunity of 
 bringing an action in the meanwhile ; but in certain other cases, 
 where justice could not be done without it between the parties, the 
 Court, nptwithstanding the inconvenience, will grant the injunction 
 in the first instance, and will not leave the party to any other 
 
 (1) Ward V. Higgs, 12 W. E. 1074. (4) AU.-Gen. v. Boyle, 10 Jur. (N.a) 
 
 (2) OUendorf v. Black, 4 De G. & 309. 
 
 Sm. 209, 210. (5) . Sparrow v. Oxford, Worcester, . 
 
 (3) Midville v. Fallon, 6 Ir. E. Bq. v. Wolverhampton Bailw. Co., 9 Hare, 
 458. . 441 ; 2 De G. M. & G. 94. 
 
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GENEEAL DOOTEINBS AND PEINCIPLES. 29 
 
 course of proceeding to ascertain the legal right ; which of these Pabt I. 
 courses is the proper one to be followed, must depend on all the ^ect! 2. 
 circumstances of each particular case (1). The object of the '" 
 
 interference of a Court of Equity by interlocutory injunction 
 between two parties who are at issue upon a legal right, is solely 
 the protection of the property in dispute until the legal right 
 shall have been ascertained ; therefore, such an injunction ought 
 always to be accompanied by a provision for putting the question 
 into a course of speedy investigation at Law (2). But the Court 
 ought not to interfere upon an interlocutory application for the 
 purpose of preventing a party from enforcing a legal claim, without 
 securing to itself the means of putting him in the same position, 
 in the event of his turning out to be right, as if the Court had 
 not interfered (3). A probability of right is sufficient to sustain 
 an injunction (4). The Court will, in many cases, interfere to 
 preserve property in statu quo during the pendency of a suit in 
 which the rights to it are to be decided, and that, without 
 expressing, and often without having the means of forming, any 
 opinion as to such rights ; it is true the Court will not interfere if 
 it thinks that there is no real question between the parties, but if 
 it sees that there is a substantial question to be decided, it will 
 preserve the property until such question can be regularly disposed 
 of, and in order to support an injunction for such purpose, it is not 
 necessary for the Court to decide upon the merits in favour of the 
 plaintiff; if the bill states a substantial question between the 
 parties, the title to the injunction may be good, although the titl6 
 to the relief prayed may ultimately fail (5). But the circumstances 
 of the case, at the time when the motion is made, must be such 
 as to enable the Court to interfere between the parties, or to put 
 the question between the parties into a course of trial, and where 
 that is not the case, the motion will not be allowed to stand over 
 - till the purpose has been so far executed as that its character may 
 be judged of, but will be at once refused (6). Doubts in- matters 
 
 (1) D.alglisli v. Jarvie, 2 Mac. & G. (5) Great Western Sailw. Co. v. 
 231, 242 ; 2 H. & Tw. 437. ^ Birmingham and Oxford Junction 
 
 (2) ffarman v. Jones, Cr. & P. 299. Sailw. Co., 2 Ph. 597. 
 
 (3) 8anxter v. Foster, Cr. & P. 302. (6) Haines v. Taylor, 2 Ph. 209 ; 
 
 (4) Tonson v. Walker, 3 Sw. 679. 10 Beav. 75. 
 
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30 GENEEAL DOCTEINES AND PRINCIPLES. 
 
 Paet I. of law are always sufficient ground for continuing an injunction 
 *^^oT™2.'"" once granted (1). The Court wOl not grant an injunction to 
 restrain parties from proceeding to deal with property, whose right, 
 if it exists, depends upon the construction of a doubtful statute, 
 where the granting of the injunction would for ever deprive them 
 of an opportunity of exercising the right, especially if no danger 
 exists from allowing them so to proceed (2). A Court of Equity 
 may interfere where a man unconscientiously exercises a legal 
 right to the prejudice of another; and an act may, in some 
 sense, be regarded as unconscientious, if contrary to the dictates of 
 prudence and reason, although the actor does the act without any 
 malicious motive (3). Where a party is prevented by the Court 
 from proceeding to establish his right at Law, it is the duty of the 
 Court to see that no injury arises to him in consequence of its 
 interference (4). Although it has been decided by the highest 
 Court of Appeal that where a person possesses a legal right, a 
 Court of Equity will not interfere to restrain him from enforcing 
 it, though between the time of its creation and that of his attempt 
 to enforce it, he has made representations of hi^ intention to 
 abandon it, and that Equity will not interfere, even though the 
 parties to whom these representations were made have acted on 
 them, and have in a full belief in them entered into irrevocable 
 engagements, and that to raise an equity in such a case there 
 must be a misrepresentation of existing facts, and not of mere 
 intention (5) ; yet it would nevertheless appear to be the more 
 correct doctrine, that it is immaterial whether there is a mis- 
 representation of a fact as it actually existed, or a misrepresenta- 
 tion of an intention to do or abstain from doing any act which 
 would lead to the damage of the party whom you thereby induced 
 to enter into irrevocable engagements, as for instance, to deal in 
 marriage, or in purchase, or in anything of that sort, on the faith 
 of that representation (6). 
 
 4. The equity of a plaintiff's case may consist in the mode 
 
 (1) Maxwell v. Ward, 11 Price, 3. O'Bmel v. Brotvne, 1 Ball & B. 262. 
 
 (2) AU.-Oen. y. Liverpool (Mayor (5) Jordanv. Money, 5 'E.L.C. 185; 
 of), 1 My. & Cr. 171. 23 L. J. (Oh.) 865 ; Money v. Jordan, 
 
 (3) Turner v, Wright, 6 Jur. (N.S.) 2 De G. M. & G. 318 ; 21 L. J. (Ch.) 
 809. 531 ; vide Coles v. Pilkivgton, post. 
 
 (4) Pulteney v. Warren, 6 Ves. 73; (6) lb. 
 
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GENERAL DOCTRINES AND PRINCIPLES. 31 
 
 adopted by the defendant of exercising a' certain right, rather Pabt I. 
 than the want of such a right itself, involving the necessity of Seot. 2. 
 a summary interference to reconcile the conflicting claims of the 
 parties (1). 
 
 5. A defendant must take the right method of asserting his 
 right, if he has any, and will not be allowed to define for himself 
 the plaintiff's right and interfere with his possession. A defendant 
 will not be allowed to exercise his right according to his own 
 judgment ^without reference to the rights of the plaintiff, that 
 would be a lawless mode of vindicating his rights, and it cannot be 
 allowed ; in such a case, if a defendant has any right beyond what 
 the plaintiff is willing to concede to him, he must bring his bill or 
 action to have those rights defined before they can be enforced (2). 
 
 6. Where the rights of the plaintiff and the defendant are 
 legal, the plaintiff, in asking for an injunction to protect him 
 from a violation of his alleged legal right, ought to shew that 
 the right has been established'; or that having had no means of 
 establishing it, but the right being prima facie well founded, the 
 interference of a Court of Equity is necessary to prevent that 
 species and extent of mischief which such a Court calls irre- 
 mediable, before the legal right can be established (3). 
 
 7. When the Court has interfered in aid of a legal right by 
 granting an injunction upon the terms of the plaintiff bringing 
 an action, it will deprive the plaintiff of the injunction if he does 
 not proceed to trial ; but there must be promptness on the part 
 of the defendant in applying to the Court for an order that the 
 plaintiff should proceed to trial within a short period, as, for 
 instance, within ten or even twenty-one days, and there must be 
 no acquiescence in the injunction by delay in so doing, as, for 
 instance, for sixteen months after the injunction has been ob- 
 tained (4). 
 
 8. If the matter in dispute is distinctly raised by the motion 
 for an injunction, and is ready for decision, the right should be 
 
 (1) Erie, &c. v. Walker, 29 Penn. 2 Ves. Sen. 414 ; Ashworth v. Browne, 
 173 (Amr.). 10 Ir. Ch. Rep. 421. 
 
 (2) lb. (4) Bichfwd v. Shewes, 4 My. & 
 (S) EUton V. Lord Granville, 4 Cr. 498 ; 10 Sim. 193. 
 
 Beav. 130; Cr. & P. 283; vide Anon. 
 
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32 GBNBEAL DOCTEINES AND PEINOIPLES. 
 
 Part I. declared and the injunction founded thereon, that the order may 
 
 Chaptee II. • j> 1. /~( _i • 
 
 Sect. 2. inform the defendant what the opinion or the Oourt is, as 
 ~ to the limits of his right, and not expose him, iu the exercise 
 
 of such right, to the consequences of violating a vague injunc- 
 tion (1). . 
 
 9. A plaintiff must satisfy the Court that he has sustained sub- 
 stantial damage from the violation of a legal right to entitle him 
 to an injunction (2). 
 
 10. If a plaintiff apply for an injunction in respect of a Common 
 Law right, and the existence of that right, or the fact of its viola- 
 tion, is denied, he will be obliged to establish his legal right 
 before he will be entitled to an injunction to prevent the recur- 
 rence of that .violation (3). The Court will not generally, in 
 doubtful cases, restrain by injunction the infringement of an as- 
 serted legal right, until its validity has been established ; yet it 
 is otherwise if there has been long uninterrupted enjoyment, that 
 being regarded as prima facie evidence of title (4). 
 
 11. A Court of Equity frequently refuses an injunction where it 
 acknowledges a right, when the conduct of the party complaining, 
 has led to the state of things that occasions the application ; in 
 such cases strict law only ought to govern (5). 
 
 12. There is no jurisdiction in Equity to order a legal instru- 
 ment to be delivered up, on the ground of illegality which appears 
 on the face of the instrument itself (6). The result of an ex- 
 amination of the authorities seems to be, that if a party has 
 wrongfully obtained possession of a legal instrument, for instance, 
 of a bill of exchange, although under circumstances which would 
 give a complete defence at Law, Equity will nevertheless interfere, 
 if from lapse of time, or death of witnesses, such defence is likely 
 to fail ; but that if the objection, being apparent on the face of 
 the instrument, must always be open to the defendant, whenever 
 
 (1) Cother v. Midland Railw. Co., 1319 ; Sroadbent v. Imperial Gas- 
 2 Ph. 469 ; 5 Eailw. Cas. 187. Light Co., 3 L. J. (N. S.) 221 ; 2 L. J. 
 
 (2) Holyoahe v. Shrewsbury and (N. S.) 1132. 
 
 Birmingham RaUw. Co., 5 Eailw. Cas. (4) Stevens v. Keating, 2 Ph. 183. 
 
 421. (5) RundeU v. Murray, Jac. 311. 
 
 (3) Imperial Gas Light and Coke (6) Simpson y. Lord Bowden 3 My. 
 Co. Y. Broadlent, 7 H. L. C. 600; 7 & Cr. 97. ' 
 
 De G. M. & G. 436 ; 5 Jur. (N. S.) 
 
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GENERAL DOCTRINES AND PRINCIPLES. 33 
 
 such action stall be brought against him, he is not entitled to PaetI. 
 apply to a Court of Equity for relief (1). 'sect!"!. 
 
 13. A plaintiff who comes to a Court of Equity for its aid, is 
 bound to put under the control of the Court, his legal rights 
 relating to the subject-matter of the litigation (2). 
 
 14. If it appear that a previous adjudication in Equity pro- 
 ceeded not on the validity of the legal title, but on the absence of 
 an equity to countervail it, a Court of Equity will not restrain an 
 action, on the ground that the matters in question have already 
 been adjudicated on, in Equity (3). 
 
 15. Although a Court of Equity will restrain the setting up 
 of an outstanding term to prevent the fair trial of a legal right, yet 
 after the trial of an ejectment has taken place, and a term has 
 been set up, whereby the trial of the merits of the case was 
 prevented, and the party using it obtained a verdict and judgment, 
 a suit cannot be sustained to set that judgment aside, nor will the 
 fact that the communications made before the trial by the party 
 who so gained the advantage at Law led the other party to 
 believe that the substantial question of the title would be tried in 
 the ejectment, enable him to sustain a suit for such a purpose ; but if 
 there be any impediment to the trial of the legal right in another 
 action of ejectment, a suit may be sustained for relief by removing 
 that impediment to the trial of the right in such future action (4). 
 
 16. Although a suit has been brought to quiet title, and a decree 
 for the plaintiff has enjoined further contesting such title, yet the 
 defendant may still set up an after-acquired title (5). 
 
 Sect. 3. No adequate Belief at Law — Inj'ii/rt/ irreparable. 
 
 1. If It is impossible to obtain adequate relief at Law, or to 
 estimate the damage to which a party will be exposed if an injunc- 
 
 (1) Jones V. Lane, 3 T. & C. 294; (3) Waine v. Crocker, 31 L. J.(Ch.) 
 vide Cooper v., Joel, 27 Beav. 313; 285. 
 
 Williams v. JRoberts, 8 Hare, 315. (4) Master, &c., of Clare Ball v. 
 
 (2) Prothero v. Phelps, 7 De G. M Harding, 6 Hare, 273. 
 
 & G-. 722 ; 2 Jur. (N. S.) 173. (5) Wetherlee v.. Dunn, 10 Min. 
 
 106 (Amr.). 
 
 D 
 
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34 
 
 GENERAL DOCTEINES AND PEINCIPLES. 
 
 Paet I. 
 
 Ohaptee II. 
 
 Sect. 3. 
 
 tion is not granted, and the injury will be irreparable, a Court 
 of Equity will grant an injunction, and that notwithstanding mis- 
 conduct on the part of the applicant in not strictly and honor- 
 ably performing his part of the agreement (1). 
 
 Delay, 
 Laches. 
 
 Sect. 4. Belay, Laches — Standing h/^ Acquiescence, Condmit of 
 Plaintiff — Notice — Ignorance — Mistake. 
 
 1. Where there is delay in the assertion of a lega;l right, and 
 the damage is slight, a Court of Equity will not grant an injunc- 
 tion to restrain an infringement on the legal right (2). A delay 
 of twelve years in making a complaint will not, in some cases, 
 amount to acquiescence, or to an abandonment of the plaintiff's 
 rights (3). In cases of obstruction of ancient lights, a delay of 
 five weeks may not, under circumstances, amount to such acqui- 
 , escence as to disentitle a plaintiff to relief at the hearing (4). 
 Although a plaintiff submit to an injury for nearly four years 
 trusting to an assurance that a scheme was being carried out, by 
 which eventually the evil complained of — for instance, a nuisance — 
 would be removed, yet he is not precluded, on the ground of 
 laches, from applying for an injunction; the rule in such cases 
 being, that the mere prospect of injury does not give a right to 
 this relief (5). 
 
 2. Time is an ingredient which is to be considered in deter- 
 mining a question of injunction, although the application be on 
 behalf of the Attorney-General, and laches may be a defence to 
 such an application by way of information, as well as upon a 
 bill (6). A party may by laches preclude himself from being 
 
 (1) Holmes v. Eastern Counties 
 Bailw. Co., 2 K. & J. 675; 3 Jur. 
 (N. S.) 737. 
 
 (2) Wintle v. Bristol and South 
 Wales Union Eailw. Co., 10 W. R. 
 210. 
 
 (3) Hartlepool Gas and Water Co. 
 V. West Hartlepool Hariour and 
 Eailw. Co., 12 L. T. (N. S.) 366 ; et 
 vide Gullick v. Tremlitt, 20 W. E. 
 
 356 ; Savile v. Kilner, 26 L. T. (N. S.) 
 277. 
 
 (4) Johnson v. Wyatt, 2 De Gr. J. & 
 S. 18; 33 L. J. (Ch.) 394; 9 Jur. 
 (N. S.) 1333 ; vide Swaine v. Great 
 Northern Bailw. Co., 1 Jur. (N. S.) 191. 
 
 (5) Att.-Gen. v. Birmingham (Bo- 
 rough Council), 4 K. & J. 528. 
 
 (6) AU.-Oen. v. Sheffield Gas Gm- 
 sumers' Co., 3 De G. M. & G. 304. 
 
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GENERAL DOCTRINES AND PRINCIPLES. 35 
 
 iBntitled to relief in Equity, without first establishing bis right at Pa^bt I- 
 Law (1). It is a general principle that parties seeking an injunc- Sect. 4. 
 tion must come forward speedily (2). If a party is guilty of laches, " 
 
 or unreasonable delay in the enforcement of his rights, he thereby 
 forfeits his claim to equitable relief; more especially where a 
 party, being cognisant of his rights, does not take those steps to 
 assert them which are open to him, but lies by, and suffers other 
 parties to incur expenses and enter into engagements and con- 
 tracts of a burdensome nature (3). 
 
 3. The Court will not grant a decree for specific performance of 
 a contract where there has been laches in applying to the Court ; 
 and in contracts relating to commodities fluctuating from day to 
 day in market price, the Court expects persons to become unusually 
 vigilant and active in asserting their right to specific perfor- 
 mance, which it is inequitable to grant after too long an interval, 
 and when the parties may be no longer in the same position (4). 
 But if the delay in prosecuting a bill for specific performance of 
 of an agreement is attributable to embarrassment in circumBtances, 
 and laches on the part of the defendant in dismissing the bill, a 
 Court of Equity will decree specific performance (5). 
 
 4. Where the Court summarily interferes against the legal 
 possession, it has a right to expect a plaintiff to proceed with the 
 most complete and honest diligence to obtain a decree ; and delay 
 in his proceedings constitutes an objection to the proposed inter- 
 ference (6). 
 
 5. Creditors may, by their laches, forfeit whatever equity they 
 may have by way of lien upon a hereditament (7). 
 
 6. A continual claim, without any active steps in support of it, 
 will not keep alive a right which would otherwise be barred by 
 
 ; (1) Weller v. Smeaton, 1 Cox, (4) Pollard v. Clayton, 1 K. & J. 
 
 102. 462. 
 
 (2) Isaacsons. Thompson, 20 W. R. (5) Moore v. Blahe, 4 Dow. 230; 
 197 ; 41 L. J. (Oh.) 101. 1 B. & B. 62. 
 
 (3) Tash V. Adams, 10 Gush. 253 (6) Owen v. 5omara,4 H. L. C. 997. 
 (Amr.) ; et vide Grey v. Ohio, (Sec, ■ (7) Houlditch v. Wallace, 5 CI. & P. 
 1 Grant, 412 ; Burden v. Stein, 27 629 ; 1 D. & Wal. 490 ; Wallace v. 
 Ala. 104 ; Long v. Gross, 5 Jones, Bq. Bonegal (^Marquis of), 1 D. & Wal. 
 323; Whitney V. Union, i&c., 11 ^Gray, 461; et vide ffoulditch v. Donegal 
 359 (Amr.) (Lord), 8 Bli. 340. 
 
 D 2 
 
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36 
 
 GENERAL DOCTEINES AND PEINCIPLES. 
 
 Paet l laches (1). It would be a dangerous doctrine to allow that the 
 
 OhAPTEB II. . , , • j-n 1 
 
 Sect. 4. mere assertion of a claim, unaccompanied by any act to give eliect 
 to it, could avail to keep alive a right which would otherwise be 
 precluded (2). 
 
 7. The Court cannot avoid being influenced by any delay which 
 may occur in the institution of proceedings by a plaintiff; such 
 delay, though it may not iamount to absolute proof of acquies- 
 cence, is yet calculated to throw considerable doubt upon the 
 reality of the injury alleged by the plaintiff, and will compel the 
 Court to weigh the amount of inconvenience which the plaintiff 
 will sustain by the refusal to grant the particular remedy of an 
 injunction, against any serious consequences which must result to 
 the defendant — for instance, a company — ^from an order which 
 would oblige them to alter the state and condition of their 
 works (3). 
 Standing by, 8. A party who has stood by while another person has laid out 
 CondSor^' ™o^6y on the faith of representations made to him by that party, 
 plaintiff. -^yiU not be allowed, by means of obtaining an increased interest 
 
 in the property, to destroy the residential value of the property 
 upon which the money has been laid out (4). A party claiming a 
 title in himself, but privy to the fact of another dealing with the 
 property as his own, will not, in Equity, be permitted to assert 
 his own title against a title created by that other party, although 
 he derives no benefit from the transaction (5). 
 
 9. Acquiescence, although not conferring a right on the opposite 
 party, deprives a complainant of his right to the interference of a 
 Court of Equity. Unless an applicant has acted promptly, he is 
 held to have impliedly authorized what he, by his application, 
 objects to (6). At the hearing of a cause, a much greater degree 
 of acquiescence must be shewn, to deprive parties of their rights, 
 than would be a sufficient defence to an interlocutory application ; 
 a degree amounting in fact, not only to positive license, but to an 
 
 (1) Lehmann v. McArthur, L. E. & J. 33 ; 1 Joh. 341 • 6 Jur (N S ) 
 8 Ch. 496. 129. 
 
 (2) Clegg v. Edmondson, 8 De G. M. (5) Nicholson v. Hooper 1 My & 
 &G. 787, 810. Or. 179. 
 
 (3) Wa/re v. Begenfs Canal Co., 3 (6) Binney's Case, 2 Bland 99 
 De G. & J. 212, 230. (Amr.) 
 
 (4) Piggott v. StraUon, 1 De G. P. 
 
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GENERAL DOCTRINES AND PRINCIPLES. 37 
 
 implication of an actual grant (1). There is a distinction between Part i. 
 tlie effect of acquiescence, upon a motion for an injunction, and on seot. 4. 
 a demurrer; in the former case, acquiescence merely prevents 
 the special protection by injunction ; but in the latter it must be 
 such as to disentitle the plaintiff to any relief whatever (2). 
 If a man stands by and allows another to erect a building on 
 his ground, and afterwards agrees as to the rent to be paid for it, 
 neither the owner of the land, nor any person claiming under him, 
 can dispute the right of the builder to use the land (3). And 
 there are several instances where a man has suffered another to 
 go on building upon his ground, and not set up a right till after- 
 wards, when he was all the time cognizant of his right, and the 
 person building had no notice of the other's right, in which the 
 Court will oblige the owner of the ground to permit the person 
 building, to enjoy it quietly and without disturbance (4). So a 
 creditor will be restrained from bringing any action against his 
 debtor on the ground of a breach of a covenant to insure for a 
 certain sum to secure the debt, if the creditor was aware that the 
 sum insured was less than the sum agreed iipon ; such conduct is 
 considered by the Court as shewing acquiescence by the creditor 
 in the breach, and he will not be allowed to take advantage of 
 the breach (5). So the heir-at-law who has long acquiesced, and 
 also acted as a devisee in trust under the will of his ancestor, 
 will be held to have lost his right to an issue devisavit vel non, if 
 the Court is satisfied that the whole estate has passed (6). Acqui- 
 escence for six years in a bond fraudulently obtained by a party 
 in a fiduciary situation, will disentitle his executor to be relieved 
 from proceedings at Law on the bond (7). A party allowing and 
 acquiescing in erecting a nuisance, will be stayed in an action at 
 Law (8). 
 
 (1) Patchin v. Dubbins, 1 Kay, 1. (6) Man v. Ricketts, 7 Beav. 93 ; et 
 
 (2) Gordon v. Cheltenham Railw. vide Elliot v. Merriman, 2 Atk. 41 ; 
 Co., 5 Beav. 229. Bar. 78. 
 
 (3) Mold V. Wheatcroft, 27 Beav. (7) Walmesley v. Booth, 2 Atk. 2& ; 
 510. Bar. 475. 
 
 (4) The East India Co. v. Vincent, (8) 2 Bq. Ab. 522 ; et vide Lord 
 2 Atk. 83. Guernsey v. Rodhridges, Gilb. Eq. 
 
 (5) WaUs V. Eyde, 17 L. J. (N. S.) Reps. 3. 
 Ch. 409; 12 Jur. 66L 
 
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38 
 
 aENEEAL DOCTRINES AND PEINCIPLES. 
 
 Part I. 
 
 Chapter II. 
 
 Sect. 4. 
 
 Notice. 
 
 10. A corporation can be bound by its acquiescence (1). So a com- 
 pany is as much bound by acquiescence as an individual, notwith- 
 standing the want of a formal contract (2). And so of a corporation, 
 though its agreement is not under the seal of the corporation (3). 
 An injunction will not be granted where, according to the case 
 made by the plaintiff, there has been long acquiescence under the 
 injury against which he at length seeks protection (4). 
 
 11. It would seem that a stronger case of acquiescence is requi- 
 site to debar a plaintiff from relief at the hearing of a cause, than 
 to disentitle him to an interlocutory injunction (5). 
 
 12. A claim for compensation is no acquiescence, if the party 
 was, at the time he made the claim, ignorant that the defendants 
 were doing an illegal act, and he takes proceedings as soon he is 
 aware of it (6). 
 
 13. Though where the Attorney-G-eneral sues in the Court of 
 Chancery for the vindication of a public charity, neither acqui- 
 escence nor lapse of time will be any bar to the proceedings, 
 there is no such principle or rule where the suit is instituted by 
 private persons, in a manner affecting solely their own individual 
 interests ; on the contrary, in such a case, acquiescence and lapse 
 of time will be a bar (7). 
 
 14. A Court of Equity frequently refuses an injunction where it 
 acknowledges a right, when the conduct of the complaining party 
 had led to. the state of things which occasions the application. 
 Not only conduct with the party with whom the contest exists, 
 but conduct with others, may influence the Court in the exercise 
 of its equitable jurisdiction by injunction (8). 
 
 15. Where property, either immoveable or moveable, is disposed 
 of, with notice of a prior contract entered into by the person dis- 
 
 (1) Grooh V. Corporation of Sea- 
 ford, 18 W. E. 1147 ; 19 W. E. 9.S8 ; 
 
 L. E. 6 Ch. 551 ; 25 L. T. (N. S.) 1. 
 
 (2) Laird v. Birkenhead Railw. Co., 
 Joh. 500; 29 L. J. (Ch.) 218. 
 
 (3) Crooh V. Corporation of Sea- 
 ford, supra. 
 
 (4) Bailey v. Taylor, 1 Euss. & 
 My. 73, 76 ; 3 L. J. (Ch.) 66. 
 
 (5) Johnson v. Wyatt, 2 De G. & S. 
 
 18 ; 33 L, J. (Ch.) 394 ; 9 Jur. (N. S.) 
 1333 ; vide Swaine v. Oreat Northern 
 Railw. Co., 10 Jur. (N. S.) 191. 
 
 (6) Pentney v. Lynn Paving Com- 
 missioners, 13 W. E. 983. 
 
 (7) Cairncross v. Lorimer, 3 Macq. 
 H. L. C. 827 ; 7 Jur. (N. S.) 149. 
 
 (8) Bundell v. Murray, Jac. 311 ; 
 et vide Saunders v. Smith, 3 My. & 
 Cr. 711, 730. 
 
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GENBEAL DOCTRINES AND PRINCIPLES. 39 
 
 posing of it, for its use in a particular manner, the person taking Paet i. 
 it with such notice may be restrained from using it otherwise (1). smv. 4. 
 
 It may be stated, at least as a general rule, that where a man by 
 gift or purchase acquires property from another, with a knowledge 
 of a previous contract, lawfully and for valuable consideration made 
 by him with a third person, to use and employ the property for a 
 particular purpose in a specified manner, the acquirer shall not, to 
 the material damage of the third person, in opposition to the con- 
 tract and inconsistently with it, use and employ the property in a 
 manner not allowable to the giver or seller (2). And the doctrine is 
 the same in cases of constructive notice (3). And wherever a party 
 is put on inquiry, and has thus constructive notice of a right, he 
 is bound by it, and will be restrained from violating that right (4). 
 
 16. If ignorance alleged by a plaintiff, is of a fact which he Ignorance, 
 is bound to know, he cannot probably suggest that effectually as 
 
 an excuse ; but if it is ignorance of a fact which he is not bound 
 to know, it is otherwise (5). 
 
 17. Notwithstanding the enunciation of a doctrine to the Mistake. 
 contrary (6), there is no doubt that Courts of Equity have power 
 
 to give relief in cases of mistake of law, as well as in cases of 
 mistake of fact (7). 
 
 18. Although a party and his tenants acting under a mistaken 
 supposition that the party is entitled to the property, respectively, 
 as to the one, grant a lease, and as to the other, expend money 
 in rebuilding the premises, yet if the actual owner knows the true 
 state of the title, and claims the property before the improvements 
 are commenced, he will not be restrained from suing -out or 
 
 (1) De Mattos v. CKbson, 4 De G. & H. L. C. 798 ; 4 Jur. (N. S.) 643 ; 
 J. 276, 282 ; 28 L. J. (Oh.) 165, 498. Euhhard v. Martin, 8 Yerg. 498 
 
 (2) lb. ; et vide Messageries Impe- (Amr.) ; Cockerel v. Ghdlmeley, 1 R. & 
 riales v. Baines, 11 W. R. 322. M. 418. 
 
 (3) Clement v. Welles, 35 Beav. 513'; (7) See In re Saxon Life Assurance 
 L. R. 1 Bq. 200 ; 35 L. J . (Ch.) 265. , Society, 2 J. & H. 408 ; 32 L. .1. (Ch.) 
 
 (4) Eervey v. Smith, 22 Beav. 299 ; 207 ; 10 W. R. T24 ; Stone v. Godfrey, 
 1 K. & J. 389. , 5 De G. M. & G. 76 ; Saunders v. An- 
 
 (5) Bodgkinson v. National Live nersley {Lord), 2 Sch. & Lef. 73 ; Beau- 
 Stock Insurance Co., 4 De G. & J. champ (Earl) v. Winn, L. R. 6 H. L. 
 422 ; 26 Beav. 473. 223 ; Kelvington v. Parker, 21 W. B. 
 
 (6) See Midland Great Western of 121 ; Dunlap v. Stetson, 4 Mas. 349 
 Ireland Eailw. Go. v. Johnson, 6 (Amr.). 
 
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40 GENBKAL DOCTEINBS AND PRINCIPLES. 
 
 Paet l executing a writ of possession under an action of ejectment and 
 Sect. 4. . evicting the tenant (1). In such a case the principle is the same, 
 whether the owner and the party making the expenditure by- 
 mistake are strangers or tenants in common of the property. If 
 the owner has once and recently given notice of his claim to the 
 property, he is not, in order to exclude any equity in respect of 
 the expenditure, on the ground of mistake by the party in posses- 
 sion, or of acquiescence on his own part, bound again to assert it 
 when the expenditure begins or while it is going on. In order to 
 exclude such equity, it is not necessary that the notice of his 
 claim, given by the claimant to the party in possession, should 
 disclose any particulars relating to the title ; nor, if the claim 
 which he made exceeded what he was entitled to, is the party 
 in possession justified in disregarding it or supposing it to be 
 unfounded (2). If a party in possession of an estate, knowing that 
 that another claims the property, will, with his eyes open, spend 
 money upon it, there is no case known in which it has been held 
 that he can, in the absence of special circumstances, keep the 
 lawful owner out of possession unless he will reimburse the party 
 in possession the expenditure he has made. That would, indeed, 
 be improving a man out of his estate. And the same reasoning 
 must apply where one party claims to be tenant in common with 
 another, and that other denies the tenancy and claims the entirety 
 of the property. And where a party has once given distinct notice 
 of his claim, the onus is on the other side to shew that he has aban- 
 doned, or given reason to believe that he has abandoned his claim (3). 
 
 19. The making of a payment into a Court of Law by a defendant 
 in an action, in ignorance of the legal consequences of the act, 
 does not amount to such a mistake as calls for the interference of 
 a Court of Equity, if the act is binding at Law ; and a Court of 
 Equity will not restrain the plaintiff at Law from doing that which 
 he is then entitled to do, namely, to stay the action and take out 
 of Court the money so paid in (4). 
 
 20. If a lease is made for a shorter term than that which was 
 contracted for, the persons claiming a reversion upon the expiration 
 
 (1) The Master &c. of Olare Hall v. (3) lb. 
 
 Harding, 6 Hare, 273. (4) Great Western Sailw. Co. v. 
 
 (2) lb. Gripps, 5 Hare, 91. 
 
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<JENBRAL DOCTBINBS AND PEINCIPLBS. 41 
 
 of tlie lease, will be restrained from taking adyantage of the PabtI. 
 
 . , , ,, , Chapter II. 
 
 mistake (1). ssor. 4. 
 
 21. If there is such a mistake in an agreement as to render it null 
 
 and void, a Court of Equity will order it to be delivered up to be 
 
 cancelled, and will restrain an action upon it (2). 
 
 Sect. 5. Abuse of Confidence — Fraud, Deceit, Misrepresentation — 
 Breach of Trust, Trusts, Trustees — Undue Influence — Parties in 
 pari delicto, Particeps criminis — Unconscionable Bargains. 
 
 1. If the right to a benefit taken by a person in a confidential Abuse of 
 situation be questioned in Equity, and it is sought to be sustained '^°^ ^^'^^' 
 as an exercise of liberality, it must be shewn that it was the 
 intention of the party from whom the benefit emanated, to be 
 
 liberal ; but intention imports knowledge, and liberality imports 
 the absence of influence, and the onus of establishing a gift in such 
 circumstances, rests with the party who has received (3); and 
 Actions upon instruments shewn to have been obtained by abuse 
 of confidence will be restrained, and the instruments will only be 
 allowed to stand as a security for what is justly due (4). 
 
 2. To set aside bargains at Law, fraud must be proved, but Fraud, Deceit, 
 Equity relieves against presumptive fraud, and against demands tion. 
 founded on unconscionable bargains and contracts (5). In almost 
 
 every case upon the subject of advantages gained by fraud and 
 breach of trust, a principal ingredient is a degree of weakness 
 short of legal incapacity, and more liability to imposition than 
 the generality of mankind (6). 
 
 3. If the fraud alleged is not such as a Court of Law can neces- 
 sarily deal with, a plaintiff at Law will not be precluded by reason 
 of his having commenced an action at Law, from coming to a Court 
 of Equity, to prevent the defendant at Law from setting up there 
 an instrument gained by his fraud (7) ; and it is not necessary that 
 
 (1) Wilde V. Ashley, 2 Jur. 679. (5) Chesterfield v. Janssen, 1 Atk. 
 
 (2) Price V.' Ley, 9 Jur. (N. S.) 295 ; 352. 
 
 11 W. E. 399, 475. (6) Griffin v. Deveuille, 3 P. Wms. 
 
 (3) Billage v. Southee, 9 Hare, 534 ; 130, n. (1), 5t]i Ed. 
 
 S. C. sub. nom. Billing v. Southee, 26 (7) Stewart v. Oreat Western Bailw. 
 
 L. J. (N. S.) Ch. 472 ; 16 Jur. 188. Co., 2 Dr. & Sm. 438 ; 2 Do G. J. & S. 
 
 (4) lb. 319 ; 13 L. J. (N. S.) 79 ; 13 W. E. 907. 
 
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42 GENEEAL DOCTRINES AND PEINCIPLES. 
 
 Pabt I. the plaintiff should ask for compensation or any other consequen- 
 s1eot™5 "■ tial relief in Equity ; a plaintiff who seeks the interference of a 
 Court of Equity is not bound, as the price of such interference, 
 to bring the whole matter into Equity (1). A Court of Equity has 
 jurisdiction to grant an injunction to restrain an action at Law, on 
 the ground of legal, as well as of equitable fraud, and to determine 
 the legal fraud (2). If a case of fraud is made by a bill, and is 
 not established by the evidence, and another case for relief is 
 alleged in the same bill and proved, the true rule is, that so much 
 of the bill is to be dismissed as relates to the charge of fraud, and 
 that relief may be given upon the other part of the case which 
 is established (3). But if a case of actual fraud is alleged, the 
 plaintiff cannot fall back upon a case of constructive fraud (4). In 
 every case where a plaintiff comes to a Court of Equity to set 
 aside a deed on the ground of fraud, it is necessary that there 
 should be clear and unequivocal proof of the facts which are said 
 to constitute the fraud, and it must be shewn that the facts are 
 such as in the eye of the Court amount to fraud (5). Suggestio 
 falsi or suppressio veri, to operate as a ground for the postponement 
 of an equity, must occur in the transaction which dat locum con- 
 tractm (6). 
 
 4. A person is entitled to an injunction to restrain interference 
 with property which he has been induced to convey to another, by 
 means of the fraudulent misrepresentations of that party ; and it 
 is no objection to the relief that that person had throughout the 
 transaction, the means, equally with the party committing the 
 fraud, of knowing what his rights were, and of obtaining competent 
 advice respecting them (7). Although it may be impossible to 
 give a definition of what constitutes fraud in the contemplation of 
 a Court of Equity, so as to meet all the various combinations of 
 circumstances to which that word may apply, yet there can be no 
 
 (1) Stewart v. Oreat Western Eailw. (5) Lumley v. Desborough, 22 L. T. 
 Co., 2 Dr. & Sm. 438 ; 2 De G. J. & S. (N. S.) 597. 
 
 319 ; 13 L. J. (N. S.) Ch. 79 ; 13 W. R. (6) Bolt v. White, 3 De G. J. & S. 
 
 907. . 360. 
 
 (2) Clarke v. Manning, 7 Beav. 162. (7) Reynell v. Sprye, Sjprye v. Bey- 
 
 (3) Parr v. Jewell, 1 K. & J. 671. nell, 8 Hare, 222 ; 1 De G. M. & G. 
 
 (4) Wilde v. Gibson, 1 H. L. 0. 605 ; 660, 691 ; 21 L. J. (Ch.) 633. 
 Parr & Jewell, 1 K. & J. 671, 674. 
 
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GENERAL DOCTRINES AND PRINCIPLES. ' 43 
 
 difficulty in saying, th<at whenever any one has by wilful misrepre- P^t i. 
 sentation, induced another to part with his rights, in the belief Seot. 5. 
 that such representations were true, this is in the plainest and " 
 most obvious sense a fraud which a Court of Equity will not 
 tolerate (1). 
 
 5. If the intent of a voluntary conveyance of land to another, 
 is to enable that party, with the privity of the grantor, to obtain 
 a marriage settlement and a portion, the grantot not refuting 
 the general opinion that the grantee was the sole owner, such an 
 intention and acts are fraudulent, and the Court will restrain any 
 proceedings by the grantor under a defeasance executed at the same 
 time by the grantee of the land (2). 
 
 6. An attorney will be restrained from proceeding against a 
 partner for the instalments of a premium, accruing after a dissolu- 
 tion, for admission to the partnership, where he has made the new 
 partner a bankrupt, whereby the partnership is dissolved (3). And 
 the same equity applies to the assignees in bankruptcy of the 
 attorney ; so also to a bond fide creditor to whom the instalments 
 have been assigned by way of security (4). If an heir-at-law, 
 being a solicitor, advise the execution of a deed which will have 
 the effect of revoking a prior will, and fraudulently omit to tell 
 the effect the deed will have upon the devise of the property, he 
 will be restrained from proceeding in ejectment, and decreed to be 
 a trustee of the lands for the devisee (5) ; and ignorance of the 
 effect of the deed, and omission to inquire whether a will had been 
 made, are such professional ignorance and neglect as afford a 
 principle by which a Court of Equity may, independently of the 
 ground of fraud, hold the solicitor to be a trustee for a third person 
 of any benefit resulting to himself (6). 
 
 7. If a plaintiff' at Law is nonsuited for want of evidence which 
 the defendant has in his power and withholds from the plaintiff, the 
 latter will be relieved in Equity (7). If the circumstances with 
 reference to an existing firm, contained in a trade circular issued 
 
 (1) Eeynell v. Sprye, Sprye v. Rey- (4) lb. 
 
 nell, 8 Hare, 222 ; 1 De G. M. & G. (5) BulUey v. Wilford, 2 CI. & F. 
 
 660, 691 ; 21 L. J. (Oh.) 633. 102 ; 8 Bli. (N. S.) 11. 
 
 (2) Webber v. Farmer, 4 Bro. P. C. (6) lb. 
 
 170. (7) Wilmot V. Lennard, 3 Sw. 682 ; 
 
 (3) Hamil v. Stokes, 4 Price, 161. et vide Field v. Beaumont, 1 Sw. 209. 
 
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44 GENERAL DOCTRINES AND PEINOIPLES. 
 
 Paet I. by parties commencing a new business of the same kind, are not 
 tou 5. ' such as in the circular mentioned, that is a deceit upon the trade 
 
 and the public, and a Court of Equity will restrain the further 
 
 issuing of the circular (1). 
 
 8. Acquiescence in the alleged fraud, by delay, with presump- 
 tive knowledge of the fraud, will prevent an injunction founded 
 upon such fraud (2). All parties to a fraud will be restrained 
 from taking advantage thereof, and also an assignee from one of 
 the parties to the fraud, for valuable consideration without notice 
 of the fraud, of a judgment, will also be restrained from th^, 
 execution thereof upon land obtained by the fraud of the party 
 who confessed the judgment (3). 
 
 9. If a matter, for instance a charge of fraud, is as fit for the 
 decision of a jury as for that of a Court of Equity, and the Courts 
 of Equity and Common Law have concurrent jurisdiction in the 
 case, and a Court of Common Law has been set in motion in the 
 first instance, a Court of Equity will not restrain the proceedings 
 at Law (4). But if, in such a case, a bill is filed in the first 
 instance, and the Court of Equity has obtained jurisdiction over 
 the matter, the Court will prevent the defendant bringing his 
 action afterwards (5). A Court of Equity will not interfere to 
 protect a party from being sued on an instrument fraudulently con- 
 trived for the purpose of depriving others of their remedies against 
 that party, for instance, for the purpose of delaying creditors (6), 
 and that although the attempt turns out to be ineffectual (7). 
 
 10. If a defendant, on a treaty of marriage by the plaintiff 
 with the daughter of one of the other plaintiffs, has represented 
 to the agent of the other plaintiffs that there was no such demand 
 as that sued upon existing, a Court of Equity will restrain the 
 defendant from recovering the demand (8). 
 
 11. If a remainderman in tail has acquiesced and encouraged 
 the next of kin in remainder for life without impeachment, &c., 
 
 (1) Stevens v. Paine, 18 L. T. (N. S.) (5) lb. 
 
 600. (6) Bateman v. Bamsey, Sau. & 
 
 (2) Belins v. McFcMen, 18 Wis. Sc. 459. 
 191 (Amr.). (7) lb. 
 
 (3) Livingston V. Hulls, 2Jolin,Ch. (8) Neville v. Wilkinson, 1 Bro. C. 
 512 (Amr.) C. 543. 
 
 (4.) Norris v. T)ay, 4 Y. & C 475. 
 
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GENERAL DOCTRINES AND PRINCIPLES. 45 
 
 to cut timber upon leave given by the jointress, the remainderman Part i. 
 will be restrained from bringing any action of waste against the sect. 5. 
 jointress (1). 
 
 12. Although a plaintiff has been guilty of a misrepresenta- 
 tion, yet if the defendant has been equally guilty pf misrepre- 
 sentation, one misrepresentation will be set off against the other, 
 and a Court of Equity will restrain an action by the defendant 
 in respect of the matter in which the mutual misrepresentations 
 were made (2). 
 
 13. If a person is guilty of fraud by reason of concealment, 
 which concealment is the means of his obtaining an advantage 
 over another person, for instance, a covenant where he is not 
 entitled to one, that is suificient to disentitle him to enforce the 
 covenant (3). Knowledge and non-communication of a fact which 
 may influence the other party are not sufficient to rescind a con- 
 tract, the fact must be, and be known by him who keeps, it back 
 to be, of sufficient importance to form a substantial element in the 
 transaction, or there must be some active misrepresentation (4). 
 
 14. It has become the invariable practice, when any act involv- Breach of 
 ing breach of trust is intended to be done, though not in its con- Trustees. ' 
 sequences irremediable, as, for instance, where trustees contract to 
 
 sell without proper care, or in a way which the parties interested 
 consider inconsistent with the trust, to apply to a Court of Equity 
 to prevent the trustees from selling (5). It is a principle of a Court 
 of Equity that a trustee shall not be permitted to use the powers 
 which the trust may confer upon him at Law, except for the 
 legitimate purposes of his trust ; and the Court will restrain him 
 from doing so, and that although the plaintiff may have a remedy 
 at Law (6). Time affords no sanction to establish breaches of 
 trust, and a Court of Equity will restrain the commission of acts 
 in violation of a trust (7). , 
 
 15. A Court of Equity wiU set aside an appointment of trustees, 
 
 (1) Aston Y. Aston, 1 Ves. Sen. 396. (5) Att.-Oen. v. Mayor of Liverpool, 
 
 (2) Greenfield v. Edwards, 11 L. T. 1 My. & Or. 171, 210. 
 
 (N. S.) 663. (6) Sails v. StruU, 1 Hare, 146. 
 
 (3) Williamson v. Moriarty,, 19 (7) Drummond r. Att.'Oen., 2 H. 
 W. E. 818. L. C. 837 ; Att.-Oen. v. Drummond, 
 ■ (i) Thompson v. Lambert, Ir. Rep. 1 D. & War. 353 ; and see 3 D. & War. 
 2 Bq. 433 ; 17 W. R. 11 L 165 ; 1 Con. & L. 210 ; 2 lb. 93. 
 
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46 GENERAL DOCTEINBS AND PBINCIPLES. 
 
 Paet I. which has been obtained from the donees of the power by parties/ 
 Sect. 5. with the intention of committing a fraud upon the trust, and will 
 
 restrain the new trustees from proceeding in ejectment to recover 
 
 the trust premises (1). 
 
 16. A party who has acquired the outward insignia of owner- 
 ship by Tirtue of a trust, will be restrained from taking advan- 
 tage of that circumstance, and from excluding the owner from 
 entering on the property and from selling the same (2). 
 
 17. The Court will restrain trustees having no power to sell, 
 from doing so, with the consent of the adult beneficiaries, until 
 it has been ascertained when it would be for the benefit of the 
 persons interested, not sui juris, that the sale should take place (3). 
 
 18. If a party in the course of his employment by the plaintiff, 
 has obtained, surreptitiously, copies of private professional memo- 
 randa, with the intention of using, or communicating, or publish- 
 ing them, he will be restrained from so doing, on the ground of 
 breach of trust and confi.dence (4). 
 
 19. A Court of Equity will not enforce the trusts of a volun- 
 tary deed made by a debtor in favour of creditors. The trusts 
 being voluntary, the debtor may vary them as he pleases, and the 
 Court will not restrain the execution of the trusts of subsequent 
 deeds until those of the first deed have been satisfied (5). 
 
 20. A trustee is not answerable for an innocent mistake from 
 which he gets no advantage, and a Court of Equity will restrain 
 proceedings at Law grounded on such mistake (6). 
 
 21. A Court of Equity will restrain one of several cestuis que trust 
 from proceeding to get possession of a fund produced from a sale 
 of securities which have been purchased with an original trust 
 fund, obtained from a trustee by the cestuds que trust with a view 
 to investment by the eestms que trust in those securities (7). 
 
 22. Equity will enjoin a party holding land in trust from 
 
 (1) Newsome v. Flowers, 30 Beav. see Sim. 1, n., and S. C, 3 Sim. 14; et 
 461 vide Qarrard v. Lauderdale (Lord), 
 
 (2) Hachits V. Moss, 14 W. E. 327. 3 Sim. 1. 
 
 (3) Wiles V. Gresham, 17 Jur. 779. (6) Oroohshanhs v. Turner, 7 Bro. 
 
 (4) Yovatt V. Winywrd, 1 Jac. & W. P. 0. 255. 
 
 394. (7) Hopkins v. Newton, 9 L. J. 
 
 (5) Wallwyn v. Coutts, 3 Mer. 707 ; (Oh.) 27. 
 
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GENEEAL DOCTRINES AND PRINCIPLES; 47 
 
 parting with his control over it (1). So it will restrain a trustee Paet I. 
 from removing the trust funds beyond the reach of the Court (2). seot. 5. 
 
 23. Trustees of money for an unascertained class of individuals 
 cannot be called upon to ascertain, at their own risk and expense, 
 who is included in that class. Thus a party claiming to be one 
 of a class of unsatisfied bondholders, will be restrained from 
 proceeding at Law to recover a part of a sum deposited in trust 
 for the bondholders, if they are an unascertained class (3). 
 
 24. No person who stands in the relation of special confidence to Undue in- 
 another, so as to acquire habitual influence over his mind, can 
 accept any gift or benefit from the person who is under the 
 dominion of that influence, unless a sufficient protection has been 
 interposed against the exercise of such influence (4). If the 
 relation proved to exist between a donee and a donor implies the 
 exercise of dominion and influence by the donee over the mind of 
 
 the donor, the donee must prove that voluntary gifts are the pure, 
 voluntary, well-understood acts of the donor's mind (5). 
 
 25. In cases of gifts made under the influence of a delusion, it 
 makes no difference that the donee may himself be under the 
 influence of the same delusion as that which led to making the 
 gift by the donor ; it is only necessary, in such a case, to shew that 
 the gift was bestowed under the influence of a delusion (6). 
 
 26. Whenever a person obtains by voluntary donation a benefit 
 from another, he is bound, if the transaction be questioned, to 
 prove that the transaction was righteous, and that the donor 
 voluntarily and deliberately did the act, knowing its nature and 
 effect, and there must be no suppression of facts ; and this rule is 
 not confined to cases of attorney and client, parent and child, and 
 other relationships, but is general (7). 
 
 (1) Hun V. Freeman, 1 Ham, 490 451; 16 W. E. 824; et vide Hatch v. 
 (Amr.) Hatch, 9 Ves. 292, 296 ; Dent v. Ben- 
 
 (2) Symons v. Beid, 5 Jones, Eq. netf, 4 My. & Cr. 269,, 276; Huguenin 
 327 (Amr.) v. Baseley, 14 Ves. 273. 
 
 (3) Eanhey v. Morley, 4 Jur. (N. S.) (6) Nottidge v. Prince, 2 Giff. 246 ; 
 234. 29 L. J. (Oh.) 857. 
 
 (4) Nottidge Y. Prince, 2 Giff. 246; (7) Cooke v. Lamotte, Lamotte v. 
 29 L. J. (Oh.) 857. Cooh, 15 Beav. 234 ; 21 L. J. (Oh.) 
 
 (5) Lyon v. Home, L. E. 6 Eq. 655 ; 371. 
 37 L. J. (Ch.) 674 ; 18 I>. T. (N. S.) 
 
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48 GENERAL DOCTBINES AND PEINCIPLES. 
 
 Paet I. 27. A party who claims the benefit of a transaction founded on 
 
 Sect. 5. a dealing with a person who is under the control and influence of 
 
 another, is bound to shew that all was fair, and a full explanation 
 given ; that onus is cast on him, and there can be no confirmation 
 of such a transaction unless there be a knowledge of its inva- 
 lidity (1), and an absolute release from the undue influence by 
 means of which the fraud was practised (2). 
 
 Parties inpari 28. Where both parties are in delicto, concurring in an illegal 
 delicto, Parti- , „ „ , , , . .,,.,„ 
 
 ceps criminis. act, it does not always follow that they stand m pan delicto ; for 
 
 there may be, and often are, very different degrees in their 
 guilt (3). One party may act under circumstances of oppression, 
 imposition, hardship, undue influence, or great inequality of con- 
 dition or age, so that his guilt may be far less in degree than that 
 of his associate in the offence (4); and besides there may be 
 a necessity of supporting the public interests or public policy in 
 many cases, on the part of the Court itself, however reprehensible 
 the acts of the parties may be (5). A Court of Equity is not 
 positively bound to interfere in such cases by an active exertion 
 of its powers; but it has a discretion on the subject,, and may 
 prescribe the terms of its interference ; and he who seeks equity 
 at its hands may well be required to do equity. And it is against 
 conscience that the party should have full relief, and at the same 
 time pocket the money loaned, which may have been granted . at 
 his own mere solicitation ; that would make a Court of Equity an 
 instrument of fraud (6). On the other hand, if such a lender 
 come into a Court of Equity, seeking to enforce such a contract, 
 
 (1) Kempson v. AsKbee, 22 W. R. (5) See Woodhouse v. Meredith, 
 871 ; 23 W. E. 38 ; L. E. 10 Ch. 15 ; 1 Jac. & W. 224, 225 ; 1 Fonbl. Bq. 
 43 L. J. (Ch.) 689 ; 44 L. J. (Ch.) 195 ; b. 1, ch. 4, § 4, n. (y) ; Bosanquet v. 
 30 L. T. (N. S.) 749 ; 31 L. T. (N. S.) Dashwood, Cas. t. Tal. 37, 40, 41 ; 
 525. Smith v. Bromley, Doug. 696, n. ; 
 
 (2) Moxon V. Payne, 43 L. J. (Ch.) Browning v. Morris, Cowp. 790 ; 
 240. Morris v. McCulloch, 2 Eden, 190, 
 
 (3) Smith V. Bromley, Doug. 696; and note 193; Story, Comm. Equity 
 Browning v. Morris, Cowp. 790 ; Os- Jurisprudence, vol. i. p. 224, 2nd 
 home V. Williams, 18 Ves. 379. Ed. 
 
 (4) Bosanquet v. Dashwood, Cas. t. (6) Scott v. Nesbit,.2 Bro. C. C. 641 ; 
 Tal. 37, 40, 41 ; Chesterfield v. Joms- 2 Cox, 183 ; Benfield v. Solomons^ 
 sen, 2 Ves. Sen. 156, 157; Osborne v. 9 Ves. 84. 
 
 Williams, 18 Ves. 379. 
 
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GBNEEAL DOCTRINES AND PRINCIPLES. 49 
 
 the Court will refuse any assistance and repudiate the eon-. Part I. 
 tract (1). For if Equity .should relieve such a lender who is seot. 5. 
 plaintiff, it would be aiding a wrongdoer who was seeking to make 
 the Court the means of carrying into effect a transaction mani- 
 festly wrong in itself (2). Upon these principles, if a borrower 
 has paid money upon such a contract, Courts of Equity (and 
 indeed Courts of Law also) (3) will assist him to recover back the 
 excess paid beyond principal and a reasonable interest, but no 
 further ; for it is no just objection to say that he is particeps 
 eriminis, and that volenti non Jit injuria. It would be absurd to 
 apply the latter maxim to the case of a man who, from mere 
 necessity, pays more than the other can in justice demand, and 
 who has been significantly called the slave of the lender. He can 
 in no just sense be said to pay voluntarily ; and as to being parti- 
 eeps eriminis, he stands in vinculis, and is compelled to submit to 
 the terms which oppression and his necessities impose on him ; nor 
 can it be said, in any case of oppression, that the party oppressed 
 is partieeps eriminis, since it is that which he labours under, and 
 which is imposed upon him by another, that makes the crime (4). 
 
 29. The juiisdiction of the Court of Chancery over unconscion- unconscion- 
 able bargains and unfair dealing in obtaining exorbitant rates of ^^'^ bargains, 
 interest, is not affected by the repeal of the usury laws by the 
 17 & 18 Vict. c. 90, nor by the 31 & 32 Vict. c. 4, as to dealings 
 with reversionary interests. The Legislature has not repealed the 
 doctrines of a Court of Equity, by which protection is thrown 
 round unwary young men in the hands of unscrupulous persons 
 ready to take advantage of their necessities (5). The doctrines of 
 
 (1) 1 Fonbl. Eq. b. 1, oh. 1, § 3, Amb. 269 ; Eolbrooh v. Sharpey, 19 
 n. (h) ; Fanning v. Dunham, 5 John. Ves. 131 ; Story, Comm., Equity 
 Ch. E. 142, 143, 144. Jurisprudence, vol. i. p. 245, 2nd Ed. 
 
 (2) 1 Ponbl. Eq. b. 1, cb. 1, § 3, (5) Tyler v. Yates, L. R. 6 Ch. 665, 
 n. Qi) ; lb. b. 1, ch. 4, § 7, and n. (h) ; 669 ; 19 W. R. 118. 909 ; L. E. 11 Eq. 
 Story, Equity Jurisprudence, vol. i. 265 ; 40 L. J. (Ch.) .768 ; 23 L. T. 
 p. 244, 2nd Ed. (N. S.) 447; 25 L. T. (N. S.) 284; 
 
 (3) 1 Fonbl. Eq. b. i. ch. 4, § 7, and 19 W. R. 909 ; Ohapple v. Mahon, Ir. 
 n. (k) ; Smith v. Bromley, Doug. 696, R. 5 Eq. 225 ; Miller v. Cooh, L. E. 
 n.-; Browning v. Morris, Cowp. 292 ; 10 Eq. 641 ; 18 W. E. 1061 ; 22 L. T. 
 Bond V. Hays, Ex'r., 12 Mass. E. 34 ; (N. S.) 740 ; 40 L. J. (Oh.) 11 ; How- 
 Story, supra. ley v. Cooh, 8 Ir. E. Eq. 571 ; Beynon 
 
 (4) Bosanquet v. Dashwood, Cas. t. v. Cook, L. E. 10 Ch. 389 ; 23 W. E. 
 Tal. 39, 41 ; Eau-den v. Shadwell, 413, 531. 
 
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^0 GENERAL DOCTEINES AND PRINCIPLES. 
 
 Pakt I. . Equity as to the relief of expectant heirs from unconscionable 
 ^™5. ' bargains have not been affected by those Acts. The changes, in the 
 Law made by those Acts have in no degree whatever altered the 
 onus probandi in those cases, which raise, from the circumstances 
 or conditions of the parties contracting — weakness on one side, 
 extortion on the other ; or advantage taken of that weakness — a 
 presumption of fraud (1). And this doctrine applies to all re- 
 maindermen and reversioners, and every one who has the hope 
 of succession to property, either by descent or an expectation of 
 a devise or bequest (2). The Court will not permit a money-lender 
 who, by advertising loans on easy terms, entraps a person into 
 borrowing, afterwards to charge exhorbitant ones ; the Court will 
 bind him to his contract, and restrain him from attempting to 
 realise his security, and direct it to stand only as a security for a 
 reasonable rate of interest (3). 
 
 Sect. 6. Public Bodies — Public Interests — Public Policy. 
 
 Public bodies. 1. A Court of Equity has no jurisdiction to interfere by in- 
 junction, at the suit of the Attorney-General, with a public body 
 in the exercise of the powers conferred on them by the Legisla- 
 ture, to perform acts in the manner they may deem advantageous 
 to the public, upon any ground arising out of the balance of con- 
 venience and inconvenience, unless, perhaps, it could be shewn 
 that such acts would be entirely useless (4), 
 
 2. If a public body, which has power given it by a statute for 
 the performance of a particular object, exercises its power so 
 as to injure the property of others, it is responsible for the injury, 
 unless the act done is absolutely necessary for the performance of 
 the object of the statute, and the Court will exercise its jurisdic- 
 
 (1) Aylesbury {EarT) v. Morris, (3) Sekham v. Barnett, 21 W. E. 
 L. E. 8 Oil. 484, 490 ; 42 L. J. (Oh.) 309. 
 
 546, 146 ; 21 W. E. 424, 188 ; 28 L. T. (4) Att.-Gen. v. Conservators of the 
 
 (N. S.) 541 ; 27 L. T. (N. S.) 753. Biver Thames, City of London Brewery 
 
 (2) Beynon v. Cook, L. R. -10 Ch. Co. v. Same, Clothworkers' Co. v. Same, 
 389 ; 23 W. B. 413, 531 ; 32 L. T. Thornton v. Same, 1 H. & M. 1 ; 8 
 (N. S.) 353. Jur. (N. S.) 1203 ; 11 W. R. 163. 
 
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GENERAL DOCTEINES AND PRINCIPLES. 51 
 
 tion by granting an injunction to restrain the injury, as, for PartT. 
 (instance, the commission of a nuisance (1). Seot. 6. 
 
 3. It is no defence, as against the rights of an individual, that a pj^bUcln^ 
 breach of an injunction has been incurred in behalf of public ^restg. 
 interests, and in carrying out duties imposed by an Act of Parlia- 
 ment (2). If all parties to a suit represent the public, and their 
 
 real objects are in common, and no danger is threatened to the 
 public, a Court of Equity will not grant an injunction (3). 
 
 4, A Court of Equity will restrain proceedings at Law upon Public policy, 
 securities given for the purchase of an office of a public nature, 
 
 upon the public policy of the Law, although the oESoe may not 
 be within the statute 5 & 6 Edw. 6. And so of securities 
 given, where the parties are private persons, where the praptice 
 is publicly detrimental, as in the case of marriage brocage 
 bonds (4), But if a legal right exist, the Court cannot refuse 
 to interfere for its protection, upon grounds which depend on con- 
 siderations of national policy ; it is for the Legislature, and not 
 for Courts of Justice, to deal with questions of national policy ; 
 the duty of a judge is to administer the law and not to make 
 it (5). 
 
 Sect. 7. Discovery . 
 
 1. A Court of Equity will not allow a contest on a motion for 
 an injunction to restrain an action until full discovery is given (6). 
 And it would seem that in a bill of discovery in aid of an action 
 a, jarimd faoie case must be shewn (7). 
 
 2. If a plaintiff, in a bill for discovery in aid of an action at 
 law by him, make out such a case as affords a reasonable ground 
 
 (1) Att.-Oen. V. Colney Hatch Lu- (3) Felkmv.fferbert(Lord),9'W .H. 
 natib Asylum, L. R. 4 Ch. 146; 38 496. 
 
 L. J. (Oh.) 265 ; 17 W. R. 240 ; 19 (4) Harrington v. Du Ohaiel, I Bro. 
 
 L. T. (N. S.) 708; Spokes v. Banlv/ry 0. 0. 124. 
 
 Local Board of Health, 11 Jur. (N. S.) (5) Caldwell v. Vanvlissengen, 9 
 
 1010. Hare, 415. 
 
 (2) Spojces V. Banbury Local Board (6) Harris v. Collett, 26 Beav. 222. 
 of Health, 35 L. J. (Ch.) 105 ; 11 Jur. (7) lb. 
 
 (N. S.) 1010. 
 
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52 GENERAL DdCTEINES AND PRINCIPLES. 
 
 Part l for argument in a Court of Law, he will be entitled to the dis- 
 Sect. 7. ' covery and an injunction to restrain the defendant at Law from 
 taking advantage of default in going to trial by the plaintiff (1). 
 
 Sect. 8. Bestraining Actions. 
 
 1. It has never been the course of a Court of Equity to restrain 
 an action merely because the plaintiff at Law cannot make out his 
 case (2). 
 
 2. The Court of Chancery exercises a discretion in permitting 
 actions to proceed, but it will never permit its decisions to be 
 questioned in a Court of Law (3). 
 
 3. On an interlocutory application to stay an action, the plain- 
 tiff's equity must be clearly established, or he must pay the money 
 in question into Court ; therefore if the equity rest on an alleged 
 parol agreement, which is denied by the defendant, and the plain- 
 tiff decline to pay the money into Court, the action will not be 
 stayed (4). 
 
 4. If the Court of Common Law has clearly jurisdiction, a 
 Court of Equity will not restrain an action ; such a Court only 
 interferes where there are equitable circumstances which render it 
 unjust, as against the defendant at Law, that the action should go 
 on (5). Bat such a Court has no jurisdiction, on the ground that 
 a Court of Law is miscarrying, or an Act of Parliament absurd (6). 
 
 5. If a plaintiff come into Equity, claiming equitable rights 
 under an instrument — ^for instance, a policy — and alleging that he 
 has no rights at Common Law, the instrument being void at Law, 
 he thereby puts his legal rights under the control of the Court of 
 Equity, and that Court will restrain an action commenced upon 
 the instrument after his bill in Equity has been dismissed. When 
 a plaintiff comes into Equity in such a case, he submits his whole 
 case to the jurisdiction of the Court to which he so applies (7). 
 
 (1) Thomas v. Tyler, 3 Y. & C. 255 ; (4) GreediY. Grain, 39 L. J. (Ch.) 126; 
 8 L. J. (N. S.) Ex. Bq. 4. (5) Pwtsmmth {Earl of) v. Par- 
 
 (2) Mangles v. Grand CoUier Dock fridge, 8 W. R. 658. 
 Co., 10 Sim. 519 ; 9 L. J. (N. S.) Ch. (6) lb. 
 
 177 ; 4 Jur. 333. (7) Tredegar v. Windus, L. R. 19 Eq. 
 
 (3) Walker v. MicMethwait, 1 Dr. & 607, 612 ; 44 L. J. (Ch.) 268 ; 32 L. T. 
 Sm. 49. (N. S.) 596 ; 23 W. R. 511. 
 
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GENERAL DOCTRINES AND PRINCIPLES. 53 
 
 Sect. 9. Convenience or Inconvenience of Interfering hy Injunction Pabt I. 
 — Interlocutory Applications for Injunctions, Interim Orders — - 
 
 Mandatory Injunctions. 
 
 1. If more inconvenience would arise from the interference of Convenience 
 
 or inconve- 
 tne Court than from its abstaining from mterference, it will not nienoe of in- 
 
 grant an injunction (1). Upon an application for interim inter- injuiotwnf 
 ference, it is a question whether, on a balance of convenience to 
 the one party or to the other, it is or is not expedient (2). Where 
 the opinion of the Court is not clearly for or against a plaintiff, 
 and there is no danger of irreparable or very serious mischief, it 
 will be governed by the balance of inconvenience, in granting or 
 refusing an injunction (3). If an injunction would inflict great 
 injury on a defendant, and a delay in granting it would cause little 
 or no loss to the plaintiff, the Court will not grant it on an inter- 
 locutory application (4). Where the stoppage of buildings in 
 course of construction, on the ground that they would materially 
 obstruct the access of light to ancient windows, will manifestly 
 occasion serious loss to one side largely in excess of any incon- 
 venience which could be caused to the other side by their 
 temporary progress, the Court will not grant an interlocutory 
 injunction to restrain the erection of the buildings (5). Although 
 it is difficult to determine what is the best mode of keeping 
 matters in statu quo until the question of infringement is finally 
 decided at the hearing of the action, and the Court will not 
 ordin&rily stop a going trade, or do anything in which there would 
 be difficulty in giving compensation to one side or the other, yet if 
 the Court is satisfied that merely to put a defendant on terms of 
 keeping an account might be a clumsy and inefficient mode of 
 recompensing the plaintiff, if the plaintiff should turn out to be 
 right, it will grant an interim injunction to restrain the manufac- 
 ture or sale of an article said to be an infringement of a patent, 
 
 (1) Hodgson v. Powis (Earl), 1 De (3) Cory v. Yarmouth and Norwich 
 G. M. & G. 6 ; 12 Beav. 392, 529. Sailu). Co., 3 Hare, 693. 
 
 (2) Shrewsbury and Chester Railw. (4) Wells v. Attenborough, 19 W. E. 
 Co. V. Shrewsbury and Birmingham 465 ; 24 L. T. (N. S.) 312. 
 
 Mail. Co. 1 Sim. (N. S.) 410 ; 20 L. J. (5) Machty v. Scottish Widows Fund 
 
 (N, S.) Ch. 574 ; 15 Jur. 548. Assurance Society, Ir. E. 10 Eq. 113. 
 
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54 
 
 GENERAL DOCTRINES AND PRINCIPLES. 
 
 Part I. 
 
 Chapter II. 
 
 Sect. 9. 
 
 Interlocutory 
 applications 
 for injunc- 
 tions. Interim 
 orders. 
 
 putting the plaintiff to abide by any order as to damages should 
 he turn out to be in the wrong ; the more so, it would seem, where 
 the trade is new, and the defendant is likely to have many 
 customers, against whom, if the injunction were refused, the 
 plaintiff, if in the right, would be forced to commence a multitude 
 of suits ; but if the defendant is an old seller, the Court will, it 
 woul-d seem, act the other way, as the granting an injunction would 
 be too great a hardship upon him (1). The right of the Court to 
 interfere by injunction not merely to restrain parties from doing 
 acts, but also from entering into contracts pending litigation that 
 might embarrass the plaintiff in his suit, must be guided by a 
 discretion not to exercise it, where it sees that, on the balance of 
 convenience and inconvenience between interim interference and 
 non-interim interference, the balance gi'eatly preponderates in 
 favour of the defendant, and against the plaintiff (2). If the rights 
 of a party are doubtful, the Court will act on the consideration of 
 the comparative injury which may arise from granting or with- 
 holding an injunction (3). In granting an injunction the Court is 
 bound to consider the amount of injury which may be thereby 
 inflicted on strangers to the suit and third parties (4). 
 
 2. A Court of Equity will, where the necessity of the case 
 requires it, interfere by injunction, during litigation, not only to 
 preserve property in statu quo, but sometimes also, to prevent the 
 defendant from affecting it by contracts or conveyances or other 
 acts; but this latter interference is by no means a matter of 
 course (5). When the Court is called on to interfere to preserve 
 property pendente lite, it is apprehended there are two points on 
 which the Court must satisfy itself. First, it must satisfy itself, 
 not that the plaintiff has certainly a right, but that he has a fair 
 question to raise as to the existence of such a right (6) ; and it is 
 
 (4) Maythorn v. Palmer, 13 W. E, 
 37 ; 11 Jur. (N. S.) 230 ; 11 L. T. 
 (N. S.) 261. 
 
 (5) Shrewsbwry and Chester Bailw, 
 Co. V. Shrewsbury and Birmingham 
 Bailw. Co. &c., ante ; et vide Spillet 
 V. Spiller, 3 Swan. 556. 
 
 (6) lb. ; et vide Great Western Bailw, 
 Co. V. Birmingham and Oxford Junc- 
 tion Bailw. Co., 2 Phil. 597, 602,' 603". 
 
 (1) Plimpton V. SpilUr, 25 W. R. 
 152. 
 
 { 2) Shrewsbury and Chester Bailw. 
 Co. v. Shrewsbury v. Birmingham 
 Bailw. Co., 1 Sim. (N. S.) 410 ; 20 
 L. J. (N. S.) Ch. 574; 15 Jur. 
 548. 
 
 (3) Garrett v. Banstead and Epsom 
 Downs Bail. Co., 13 W. R. 878 ; 11 
 Jur. (N. S.) 591. 
 
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GENERAL DOCTRINES AND PRINCIPLES. 55 
 
 conceived that even where it is made out that there is a point to Part I. 
 be decided which the plaintiff is fairly raising, still there is a sect. 9. 
 further and second question, namely, whether interim interference 
 on a balance of convenience and inconvenience to the one party 
 and to the other, is or is not expedient. Where the alternative is 
 interference or probable destruction of the property, there, of 
 course, the Court will be very ready to lend its immediate 
 assistance, even at considerable risk that it may be encroaching on 
 what may eventually turn out to be a legal right of the defendant. 
 But when, on the other hand, the only evil to result from non- 
 interference is that the plaintiff may, by the contracts or deeds of 
 the defendant, be retarded or embarrassed in his litigation, there 
 the Court wiU be far more ready to listen to any suggestion of the 
 defendant shewing that interference during litigation will prejudice 
 his rights (1). 
 
 3. Upon interlocutory applications, the Court will have regard 
 to the balance of mischief likely to result from interfering or 
 refusing to interfere (2). But there is no limit to the practice of 
 a Court of Equity with regard to interlocutory applications, so 
 far as they are necessary and reasonable applications ancillary 
 to the due performance of its functions, namely, the administra- 
 tion of justice at the hearing of the cause. Whether they are 
 or are not to be granted must, of course, depend upon the 
 special circumstances of the case (3). The Court will not, upon 
 interlocutory motion, restrain a small excess in the height of a 
 building, in violation of a contract or an Act of Parliament, where 
 no irreparable injury arises from such excess (4). The Court will 
 not, by an interlocutory injunction restrain an act the validity of 
 which, as between the parties to the suit, is matter of doubt, and 
 for which, if wrongful, the plaintiff can obtain adequate compensa- 
 tion in damages at the hearing of the cause, while the injunction, 
 if granted, would inflict serious injury on the party sought to be 
 
 (1) Shrewsbury and Chester Railw. (3) Smith v. Peters, L. R. 20 Eq. 
 Co. V. Shrewsbury and Birmingham 511, 513. 
 
 Sailw Co., 1 Sim. (N. S.) 410; 20 (4) Warden, <tc., of Dover Ilarhqur 
 
 L. J. (N. S.) Ch. 574; 15 Jur. 548. v. South Eastern Eailw. Co., 9 Hare, 
 
 (2) Fielden v. Lancashire and Yorh- 493. 
 shire Railw. Co., 2 De G. & Sm. 531. 
 
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56 
 
 GENERAL DOCTRINES AND PRINCIPLES. 
 
 Past I. restrained. A Court of Equity, on an interlocutory motion for an 
 Seut. 9. injunction, acts according to the justice of the case, as ascertained 
 upon the evidence before it, and according to the comparative 
 injury which may arise from granting or withholding the injunc- 
 tion (1). If the Court considers that a party will not be damnified 
 by the proceedings sought to be restrained remaining in statu quo 
 until the hearing of the cause, it will not grant an interlocutoiy 
 injunction where the principal part of the arrangement sought to 
 be restrained has been carried out (2). If the Court cannot compel 
 a defendant — either a company or an individual — ^to do that which 
 is necessary to enable a plaintiff to take advantage of an injunc- 
 tion restraining the defendant from doing an act, it will not grant 
 either an interlocutory or final injunction, since it would be 
 inoperative (3). Thus, if the act which is necessary, is continuous, 
 it is not the practice of the Court to compel by injunction either a 
 company or an individual to do such an act — for instance, one that 
 requires the continuous employment of people (4). An injunction 
 pendente lite should not be granted on light grounds, but in such 
 cases should await the full proof upon the final hearing (5). It is 
 a matter of discretion for a Court of Equity whether it will or not 
 interfere by interim order respecting the property of a litigant. If 
 the property is in medio (in tlie actual enjoyment of no one), the 
 Court will interfere for the benefit of all concerned (6). On an 
 interlocutory motion for an injunction as to a matter merely 
 pecuniary, the plaintiff cannot succeed without satisfying the 
 Court not merely that there is a case to be tried, but that there is 
 some probability of the bill not being dismissed at the hearing (7). 
 The leading principle which ought, generally speaking, to be the 
 guide of the Court, and to limit its discretion in granting inter- 
 
 (1) Munro v. Wivenhoe and Bright- 43 L. J. (Ch.) 575 ; 29 L. T. (N. S.) 
 lingsea Bailw. Co., 11 Jur. (N. S.) 575 ; 30 L. T. (N. S.) 208. 
 
 612 ; 13 W. R. 880 ; 4 De G. J. & S. (4) lb. 
 
 723. (5) BedfieU v. Middhton, 7 Bosw. 
 
 (2) Bishop V. Scott, 7 L. T. (N. S.) 649 (Amr.). 
 
 570. (6) Owen v. Eoman, 4 H. L. C. 997 ; 
 
 (3) The Powell Duffryn Steam Coal 17 Jur. (N. S.) 861. 
 
 Co. v. The Taff Vale Bailw. Co., (7) Att- Gen. v. Wigan {Mayor of), 
 
 L. II. 9 Ch. 331, 335 ; 20 W. R. 460 ; 5 De G. M. & G. 52 ; 18 Jur. 299 ; 
 22 W. R. 182 ; 2C L. T. (N. S.) 357 ; 23 L. J. (Ch.) 429. 
 
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GENEEAL DOCTRINES AND PEINCIPLES. 57 
 
 locutory iniunctions, at least where no very special circumstances Pakt I. 
 
 . , , , .,,11. 1 Chapter II. 
 
 occur, IS that only such a restraint should be imposed as may Sect. 9. 
 
 suffice to stop the mischief complained of; and where it is to stay 
 
 further injury, to keep things as they are for the present (1). 
 
 But in matters of great importance, which can only be properly 
 
 determined at the hearing, the Court is in favour of restraining 
 
 destructive operations until the hearing (2). Before the Court of 
 
 Chancery interposes upon an interlocutory application to stay 
 
 proceedings in a suit by reason of a decree or judgment in a foreign 
 
 country, it must be satisfied that the foreign decree or judgment 
 
 does justice and covers the whole subject of the suit (3). 
 
 4. Though the small extent of a plaintiff's interest, for instance, Mandatory 
 
 "■ . .11 injuiiotiona. 
 
 a tenancy from year to year, where a notice to quit has been 
 
 given, does not necessarily disentitle him to relief, yet it is a 
 material ingredient for consideration, and if it is not clear that a 
 plaintiff having a slender interest has sustained material injury, 
 and the inconvenience to the defendant caused by a mandatory 
 injunction is far greater than the refusal of it to the plaintiff, he 
 being left to his action for damages, the Court will refuse the 
 injunction (4). The jurisdiction of the Court to interfere by way 
 of mandatory injunction should be exercised with the greatest 
 possible caution, and it would seem should be confined to cases 
 where the injury cannot be estimated and sufficiently compensated 
 by a pecuniary payment (5). In order to obtain a mandatory 
 injunction, the right, to restrain the violation of which, the injunc- 
 tion is asked for, must be clearly made out ; also that there is a 
 present want to use that right, with which the obstruction com- 
 plained of is an interference (6). The Court is always very 
 reluctant upon interlocutory applications to grant a mandatory 
 injunction (7). Although the Court will not interfere by way of 
 
 (1) Blakemore v. Glamorganshire 529 ; 32 L. J. (Ch.) 601 ; 3 De G. J. & 
 Canal Navigation Co., 1 My. & K. 154, S. 533. 
 
 185. (o) Iseriberg v. East India House 
 
 (2) Att.-Gen. v. Great Eastern Estate Co,, 3 De G. J. & P. 263; 10 
 Eailw. Co., 25 L. T. (N. S.) 867. Jur. (N.S.) 221 ; 33 L. J. (Ch.) 392 ; 
 
 (3) AsteU V. Le Page, 2 De G. M. & 9 L. T. (N. S.) 625 ; 12 W. R. 450. 
 G. 892. (6) Bradburn v. Morris, Morris v. 
 
 (4) Jacombv. Knight, 9 Jnr. (N. S.) Bradburn, 3 Ch. D. 812. 
 
 (7) Turner v. Spooner, 1 Dr. & Sm. 467 ; 30 L. J, (Ch.) 801. 
 
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58 GENERAL DOCTRINES AND PRINCIPLES. 
 
 Part I. mandatory injunction except in cases in which extreme, or, at all 
 Sect. 9. ' events, very serious damage would ensue from its interference 
 being withheld; yet the Court has no general rule against, 
 granting such relief where the damage has been completed before 
 filing of the bill ; every case must depend upon its own circum- 
 stances (1) (2). And there is no doubt that the Court has power 
 to interfere,'in cases where the damage has been completed before 
 the filing of the bill, upon an interlocutory motion for a mandatory 
 injunction ; for instance, where theie has been a clear violation 
 of an express contract after express notice that the violation 
 would not be sanctioned (3). 
 
 5. The Court has power to restrain a party from allowing a 
 thing to continue ; such an injunction as this has the effect of 
 making the party take some active measures, and this is a species 
 of negative injunction (4). Although a covenant be one of which 
 the Court cannot decree specific performance, yet it can grant an 
 injunction restraining a defendant from continuing to violate his 
 covenant and obligation (5). 
 
 Sect. 10. Generally. 
 
 1. Where a plaintiff alleges and proves, in a case for an injunc- 
 tion, a peculiar and specific injury, the order which he obtains 
 gives him an extended right in general terms to restrain any 
 injury of the same kind ; but where the peculiar and specific 
 
 (Y) BtirellY. Pritchard,L.B,.l Ch. junctions; however, it is submitted 
 
 244, 250. that having respect to the law on this 
 
 (2) In the case of Smith v. Smith, subject, as laid down in the cases, these 
 
 (L. R. 20 Bq. 500; 23 W. R. 771 ; 32 observations are not consistent with 
 
 L. T. (N. S.) 787 ; 44 L. J. (Ch.) 630), that law, and must be received with 
 
 the Master of the Rolls, Sir George great caution. 
 
 Jessel, dissents from the proposition (3) Morris v. Grant, 24 W. E. 55, 
 
 entertained by the Courts that extra 56. 
 
 caution is to be exercised in granting a (4) Spencer v. London and Birmirf^- 
 
 mandatory injunction, and says that in ham Eailw. Co., 8 Sim. 183, 198; 
 
 looking at the reason of the thing there Hankin v. Husldsson, 4 Sim. 13. 
 
 is not any pretence for such a dis- (5) Coohe v. Chilcott, L. R. 3 Chi 
 
 tinction as is. supposed to exist be- D. 694 ; 34 L. T. 207. 
 tween that and other forms of in- 
 
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GENERAL DOCTRINES AND PRINCIPLES. 59 
 
 injury is distinctly stated upon the pleadings, and where the Part I. 
 words used describe another peculiar and specific injury proposed seot. lo. 
 to be proved, the plaintiff is not entitled to relief (1). If a bill ~ 
 state that an injury by the defendant will, by a certain mode of 
 operation, be inflicted^ upon the plaintiff, and then after giving 
 notice of motion for an injunction, that mode of operation is 
 changed and another adopted, the wholesome arrangement is to 
 amend the bill ; and general words in a motion for an injunction 
 are only justified by establishing a specific case of injury (2). If 
 an injunction is applied for upon a distinct ground which fails, it 
 will not, in general, be granted upon another ground which has not 
 been put forward, but which it appears might have been put 
 forward in the circumstances of the case (3). To warrant the 
 Court in granting or continuing an injunction, it must be reason- 
 ably satisfied that there is an intention on the part of the defendant 
 to do the acts sought to be restrained,- or, at least, that there is 
 probable ground for believing that, unless the injunction is granted, 
 there is danger of such acts being done, and it is not a sufficient 
 ground for granting an injunction that, if there is no such inten- 
 tion, it will do the defendant no harm (4), If no irreparable 
 injury is shewn, and the title of the plaintiff is not sufficiently set 
 out in the bill, and no act of ownership is proved to support an 
 allegation of possession and enjoyment, the Court will not grant 
 an injunction (5). In order to obtain an injunction, a plaintiff 
 who complains, not that an act is an actual violation of his right, 
 but that a threatened or intended act, if carried into effect, will 
 be a violation of the right, must shew that such will be an inevit- 
 able result. It will not do to say that a violation of the right 
 may be the result ; the plaintiff must shew that a violation will be 
 the inevitable result (6). 
 
 2. A plaintiff is entitled to an injunction to preserve property 
 until a custodian can be obtained (7). 
 
 (1) flerzv. Union.Banh of London, . (5) Southampton (^Lord) v. Bir- 
 1 Jur. (N. S.) 127. mingham Eailw. Co., 2 Jur. 1012. 
 
 (2) lb. (6) Fattison v, Gilford, L. R. 18 
 
 (3) Castelli v. Cook, 1 Hare, 89. Eq. 256, 263 ; 22 W. R. 673 ; 43 L. J. 
 (4; Dunn v. Bryan, 7 Ir. R. Eq. (Cla.) 524. 
 
 143. . (7) Barry v, Bonndlan,! Hog. 339. 
 
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60 GBNEEAL DOCTEINES AND PRINCIPLES. 
 
 Past I. 3. It is not necessary for a party who seeks to continue an 
 
 Sect. 10. injunction to the hearing, to shew an indefeasible right to the 
 decree prayed by the bill (1). 
 
 4. A party is entitled to move to dissolve an injunction if, from 
 ambiguity in its terms, he may, under any construction of the 
 order, be prejudicially affected (2). It is the duty of a party 
 asking for an injunction, to bring under the notice of the Court all 
 facts material to the determination of his right to that injunction, 
 and it is no excuse for him to say that he was not aware of the 
 importance of any facts which he omits to bring forward ; and if a 
 plaintiff obtain an ex parte injunction on the facts stated in the 
 bill, but other facts came out' in the defendant's answer, raising a 
 question of law on which the right of the plaintiff to an injunction 
 depends, the omission of the plaintiff to bring the facts under the 
 notice of the Court is of itself a sufficient ground for dissolving the 
 injunction (3). The plaintiff must fully and fairly state his case in 
 the first instance (4). A misstatement of his case, arising from his 
 mistake, is a ground for dissolving an injimction (5). It is an estab- 
 lished rule that where a party comes for an ex parte injunction, and 
 misrepresents the facts of the case, he shall not then be permitted 
 to support the injunction by shewing another state of circum- 
 stances in which he would be entitled to it ; because the jurisdic- 
 tion of the Court in granting ex parte injunctions is obviously a very 
 hazardous one, and one which, though often used to preserve pro- 
 perty, may be often used to the injury of others, and it is right 
 that a strict hand should be held over those who come with such 
 applications (6). The Court exercises a wide discretion as to 
 keeping up or dissolving injunctions. Thus if a plaintiff, who has 
 obtained an injunction, become insolvent, and the suit be retarded 
 by delay in appointing an assignee, the Court will direct the plaintiff 
 in a supplemental suit to set the cause down forthwith, notwith- 
 standing he is entitled to bring the cause regularly to hearing (7). 
 
 (1) Powell V. Lloyd, 2 Y. & J. 427. 183 ; 2 Con. & L. 76. 
 
 (2) Dalglish v. Jarvie, 2 Mac. & G. (5) Vandergucht v. De Blaqmere, 8 
 231 ; 2 H. & T. 437. Sim. 315, 323. 
 
 (3) lb. (6) Att.-6en. v. Liverpool {Mayor, 
 
 (4) Dease v. Plunhett, Dr. 225 ; <fcc.), 1 My. & Cr. 171, 210. 
 Eemphill v. M'Kenna, 2 D. &'War. (7) Caird v. Campbell, 1 Moll. 484. 
 
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GENERAL DOCTRINES AND PRINCIPLES. 61 
 
 5. The jurisdiction of the Court to restrain by injunction an Pabt I. 
 act which the defendant is by contract bound to abstain from, is seot. lo. ' 
 not confined to cases in which there are either no other executory 
 terms in the contract, or none which a Court of Equity has not 
 the means of enforcing. If a bill states a right or title in the 
 plaintiff to the benefit of a negative agreement on the part of the 
 defendant, or of his abstaining from a given act, the Court will 
 equally interfere by injunction, whether the right be at Law or 
 under an agreement which cannot be otherwise brought under its 
 jurisdiction (1). 
 
 6. The Court will grant an injunction to restrain one of the 
 defendants to a bill from parting with the property in question in 
 the cause (the property being in this country), notwithstanding the 
 principal party interested (another of the defendants) is out of the 
 jurisdiction (2). 
 
 7. If a plaintiff state upon his bill a case entitling him to relief, 
 and the defendant protect himself from answering several of the 
 circumstances which are essential to the plaintiff's equity, on the 
 ground that the discovery of them would expose him to pains and 
 censures, but admit other circumstances connected with these ; if 
 the Court, comparing what is admitted with what is refused to be 
 answered, see reason to think that the case is one which is fit for 
 inquiry in Equity, an injunction will be granted (3). 
 
 8. The Court has an equitable jurisdiction to grant an injunc- 
 tion, or to order the delivery up of an instrument, though it may 
 be, at the time of the motion, the subject of an action then going 
 on (4), And this although there may be a good defence at 
 Law (5). 
 
 9. Money paid into Court upon an injunction, and laid out, is a 
 security, and not a payment ; and therefore if it turns out that 
 less is due to the defendant than the amount paid in, the balance 
 will be restored to the plaintiff (6). 
 
 (1) Bietrichsen v. Cabhurn, 2 Ph. (5) Hodgson v. Murray, 2 Sim. 515, 
 
 52 ; 1 Coop. C. C. 72. 283 ; StacMouse v. Countess of Jersey, 
 
 "' (2) Malcolm v. Scott, 3 Hare, 39. IJ. & H. 721, 731. 
 
 (3) V. Donovan, 2 L. J. (Ch.) (6) Broughton v. Pitchford, 6 Madd. 
 
 56. 295. 
 
 (4) Jervis v. White, 7 Ves. 413. 
 
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62 GENERAL DOCTRINES AND PRINCIPLES. 
 
 Paet I. 10. A Court of Equity will not grant an injunction where" the 
 
 Sect. 10, proper remedy is a mandamus (1) ; and although the injunction is 
 
 ~~ asked for at a period when a mandamus cannot be obtained for 
 
 some months, that is not a sufficient reason for granting the 
 
 injunction (2). 
 
 (V) Att.-Gen. v. Birmingham & & Sra. 490 ; 3 Mao. & G. 453 ; 15 Jur. 
 Oxford Junction Bailw. Co., 4 De G. 1024 ; 16 Jur. 113. 
 
 (2) lb. 
 
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( 63 ) 
 
 PAET II. 
 
 THE DOCTRINES AND PEINOIPLBS OF THE LAW OP INJUNCTIONS, 
 AS APPLICABLE TO THE VARIOUS SUBJECTS OP INJUNCTIONS, 
 WHERE IT IS NOT NECESSARY TO RESTRAIN PROCEEDINGS IN 
 COURTS OP LAW AND OTHER COURTS. 
 
 CHAPTEE I. 
 
 The Doctrines and Principles as Applicable to Real Pro- 
 perty (including therein Chattels Eeal or Leaseholds). 
 
 Sect. 1. Distress, Bent. 
 
 1. Where there are other jurisdictions perfectly competent to 
 prevent annoyance to property by a mere stranger, a Court of 
 Equity has no jurisdiction, and will not, at the suit of an owner 
 of property, interfere to restrain such mere stranger from vexati- 
 ously distraining on or otherwise molesting the tenant for rent (1) ; 
 nor will such a Court, where there is nothing more than a suc- 
 cession of legal rights, which must be determined in a Court of 
 Law, direct an account to be taken of the rents which have been 
 received by a stranger, or grant an injunction to restrain him from 
 receiving future rents (2). 
 
 Sect. 2. Possession, Trespass. 
 
 1. The following rules are those upon which a Court of Equity 
 acts, in the different circumstances of a defendant or a plaintiff 
 
 (1) Best V. Drake, 11 Hare, 369; Att.-Gen. v. Slieffield Gas Consumers 
 Brake v. West, 22 L. J. (Ch.) 375 ; Co., 3 De G. M. & G. 304. 
 Aldis V. Fraser, 15 Beav, 215 ; et vide (2) Mdis v. Fraser, 15 Beav. 215. 
 
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64 POSSESSION, TRESPASS. 
 
 Paet II. being in possession, where recourse is had to such a Court to 
 
 Chapter I. . . „ -,■ . ' -rn i n ^ ■ • • e 
 
 Sect. 2. restrain acts of spoliation. If a defendant is m possession ot an 
 
 estate, and a plaintiff claiming possession seeks to restrain him 
 from acts of spoliation, the Court will not grant an injunction 
 unless the acts are so flagrant as to justify it in departing from 
 the general rule not to interfere. If a plaintiff is in possession, 
 and they are the acts of a stranger, the tendency of the Court is 
 not to grant an injunction, and to leave him to his remedy at 
 Law against such stranger committing such acts, unless there are 
 special circumstances, or they tend to the destruction of the in- 
 heritance. But if a plaintiff is in possession, and seeks to restrain 
 the defendant claiming title, the tendency of the Court is to grant 
 the injunction, unless there are special reasons why it should not, 
 at least where acts do or may tend to the destruction or injury of 
 the estate, and it would seem, the tendency of modern decisions, 
 continually increasing from year to year, is to break down the old 
 distinctions between waste and trespass (1) (2). Where there is a 
 deliberate and unlawful invasion by one man of another man's 
 land for the purpose of a continuing trespass, which is in law a 
 series of trespasses from time to time, to the gain and profit of the 
 trespasser, without the consent of the owner of the land ; it is a 
 proper subject for an injunction, and the owner of the soil will not 
 be left to his remedy at Law, nor required to establish his right 
 at Law ; and the mere fact of the trespass being complete at the 
 time the bill is filed will not prevent an injunction in the nature 
 of a mandatory injunction, against the continuance of the trespass, 
 if there has been neither acquiescence nor delay (3). And the 
 owner in fee of a garden over which the tenants of his houses 
 adjoining have rights of enjoyment and management, is entitled to 
 
 (1) Lowndes V. Settle, 10 SuT.(N.S.) any claim of title or otherwise, or (if 
 226; 12 W. R. 399; 33 L. J. (Ch.) outof possession) does or does not claim 
 (N. S.) 451 ; 10 L. T. (N. S.) 55. a right to do the act sought to he re- 
 
 (2) Under the Judicature Act, 1873, strained under any colour of title; and 
 s. 25, clause 8, an injunction may be whether the estates claimed by both 
 granted to prevent any threatened or or by either of the parties are legal or 
 apprehended waste or trespass, if the equitable. 
 
 Court shall think fit, whether the per- (3) Goodson v. Richardsm, L. E. 9 
 
 son against whom such injunction is Ch. 221 ; 22 W. R. 337 ; 43 L. j. (Cli.) 
 sought, is or is not in possession under 790 ; 30 L. T. (N. S.) 142. 
 
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WATER, RIVERS— WELLS— CANALS-FEEEIES. 65 
 
 an injunction to restrain continuing trespasses and nuisances in Part il 
 the garden, by a person acting under the colour of a contract to Se™2. ' 
 improve the garden entered into between him and the tenants (1). 
 Pending a partition suit, the Court will not interfere with the pro- 
 perty, nor allow it to be interfered with by the parties, until the 
 partition has been completed ; and, therefore, it will not restrain 
 the defendant in the suit, who is in occupation of the portion 
 allotted to the plaintiff, from proceeding with an action of trespass 
 against the plaintiff for a forcible entry (2). 
 
 Sect. 3. Water, Rivers — Wells — Canals — Ferries. 
 
 1. A riparian owner on a tidal nayigable river, retains, in addition Water, 
 to the right of navigation to which he is entitled as one of the 
 public, his rights as an ordinary riparian owner, underlying and 
 controlled by, but not extinguished by, the public right of naviga- 
 tion. Among such private riparian rights as an ordinary riparian 
 owner, is that of an access to and from a particular wharf ; this 
 
 is not a right held in common with all the public, for the rest of 
 the public have no access to or from the river at the particular 
 place ; it is a form of enjoyment of the land ; and of the river in 
 connection with the land, the disturbance of which may be vindi- 
 cated in damages by an action or restrained by an injunction. It 
 is a portion of the valuable enjoyment of the land, and any work 
 taking it away is an injurious affecting of the land, that is to say, 
 the occasioning to the land an injuria, or an infringement of 
 right (3). 
 
 2. The soil of the cdveus is not the common property of the 
 respective owners on the opposite sides of a river ; the share of 
 each belongs to him in severalty, and extends usqtie ad medium 
 filum aquas ; but neither is entitled to use it in such a manner as 
 to interfere with the natural flow of the stream. A fence or 
 
 (1) Allen v. Martin, L. E. 20 Eq. (3) Lyon v. Tlie FisTimongers' Co., 
 462; 23W. R. 904; 32 L. T. (N. S.) 25 W. R. 165; 23 W. E. 689; 44 
 750. L. J. (Ch.) 408 ; 31 L. T. 479. 
 
 (2) Hughes v. UArcy, 8 In E. Eq. 71. 
 
 F 
 
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66 WATER, EIVBRS— WELLS— CANALS— FERRIES. 
 
 Part II. bulwark on the bank is allowable, but the alveus is sacred, and 
 Sect. 3. ' any encroachment by one proprietor may be resisted by the other ; 
 ~ the onus of proving that the act is not an encroachment falls on 
 
 the party doing it, who is p-imd facie held responsible ; howeyer, 
 mere apprehension, without some show of injury, will not ground 
 a complaint. An encroachment on the alveus of a running stream 
 may be complained of by an adjacent or an ex adverse proprietor, 
 without the necessity of proving either that damage has been 
 sustained, or that it is likely to be sustained from that cause (1). 
 No man has a right to put an obstruction in the bed of a public 
 navigable river ; and the Court will restrain the construction of 
 erections which will create an obstruction to the navigation of 
 such a river (2). 
 
 3. The right to the use of water rests on clear and settled prin- 
 ciples. Prima facie, the proprietor of each bank of a stream is 
 the proprietor of half the land covered by the stream, but there is 
 no property in the water. Every proprietor has an equal right 
 to use the water which flows in the stream, and, consequently, no 
 proprietor can have the right to use the water to the prejudice of 
 any other proprietor without the consent of the other proprietors 
 who may be affected by his operations ; no proprietor can either 
 diminish the quantity of water which would otherwise descend to 
 the proprietors below, nor throw the water back on the proprietors 
 above. Every proprietor who claims a right, either to throw the 
 water back above, or to diminish the quantity of water which is 
 to descend below, must, in order to maintain his claim, either 
 prove an actual grant or licence from the proprietors affected by 
 his operations, or must prove an uninterrupted enjoyment of 
 twenty years (3). A riparian owner has a right, irrespective of 
 
 (1) Bichett V. Morris, L. R. 1 H. L., See the Prescription Act, 2 & 3 Will. 4 
 So. 47 ; et vide Lord Advocate v. Ea- c. 71, s. 2, wldch gives a prescriptiTe 
 milton, 1 Macq. 46, for the distinc- right to the use of water by user for 
 tion between rivers navigable and rivers twenty years before a suit to protect 
 not navigable, shewing that the soil of the right, if an actual grant of the ease- 
 the alveus in rivers navigable is in ment can be presumed to have heea 
 the Crown ; lb. n. 49. lawfully made. Staffordshire and Wor- 
 
 (2) Att.-Oen. v. Terry, L. R. 9 Ch. cestershire Canal Navigation Co. v. 
 423; 22 W. E. 200, 395; 29 L. T. Birmingham Canal Navigation Co., 
 (N. S.) 716 ; 30 L. T. (N. S.) 215. L. E. 1 H. L. 254. 
 
 (3) Wright v. Howard, 1 S. & S. 203. 
 
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WATER, RIVEES— WELLS— CANALS— PEEEIBS. 67 
 
 any actual damage sustained by him, to complain of an ob- PartII. 
 struction to a stream (1). A continuing diversion of water sjjot. 3. 
 from its natural bed is an irreparable injury, which Equity will 
 redress (2). 
 
 4. In order to establish a claim to use water there must be evi- 
 dence of twenty years' user, and it must be shewn that there has not 
 been an interruption for one year before filing a bill (3). A posses- 
 sion of less than twenty years will give no prescriptive right to the 
 use of water (4). Where there is a prescriptive right to a riparian 
 easement, the user whicli originated the right must also be its 
 measure, and the easement cannot be enlarged to the prejudice of 
 any other person (5). Thus, where a prescriptive right to foul a 
 stream has been acquired, the fouling must not be considerably 
 enlarged to the prejudice of other people, and the fact that 
 the stream is fouled by others is not a defence to a suit to restrain 
 the fouling by one. The mere suspension of the exercise of a 
 prescriptive right is not sufficient to destroy the right without 
 some evidence of an intention to abandon it ; but actual disuser 
 of an easement for twenty years, during which others have ac- 
 quired adverse rights, destroys the right to the easement (6). But 
 mere non-user for less than twenty years of a privilege or of an 
 easement is not in itself a proof of abandonment ; abandon- 
 ment is a conclusion to be drawn from all the circumstances, 
 amongst which the lying by and permitting others to incur ex- 
 pense in preparing to do that which, if continued uninterruptedly 
 for' twenty years, would destroy the easement, is a fact of great 
 importance (7). The owner of land on the banks of a river can 
 maintain a suit to restrain the fouling of the water of the river 
 without shewing that the fouling is actually injurious to him (8). 
 
 (1) Norhury (Earl) v. Eitchin, 15 633 ; vide Weeks v. Heward, 10 W. R. 
 L. T. (N. S.) 501. 557. 
 
 (2) TuolumneWaterCo.Y.Oliapman, (5) Crossley & Sons v. Lightowler, 
 8 Cal. 302 ; Corning v. Troy, &c., Fac- L. E. 2 Ch. 478 ; 36 L. J. (Ch.) 584 ; 
 tory, 39 Barb. 311 (Amr.) 16 L. T. (N. S.) 438 ; L. E. 3 Eq. 279. 
 
 (3) Ennor v. Barwell, 1 De a.' (6) lb. 
 
 F. & J. 529; 2 Giff. 410; 4 L. T. (7) lb. L. E. 3 Eq. 279. 
 
 (N. S.) 597 ; 6 Jur. (N. S.) 1233, 1283 ; (8) lb. L. E. 2 Ch. 478; 36 L. J. 
 
 7 Jur. (N. S.) 788 ; 8 W. E. 300. (Ch.) 584 ; 16 L. T. (N. S.) 438 ; L. E. 
 
 (4) Ivimy v. Siocleer, 34 L. J. (Ch.) 3 Bq. 279. 
 
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38 WATER, EIVEES— WELLS-CANALS— FEREIES. 
 
 Pabt II. Though a river is polluted before it receives the drainage of a 
 Sect. 3. town, the landowners on the banks are entitled to restrain the 
 
 ~~~< further pollution (1). An occupant of neighbouring land is not 
 
 entitled to intercept the natural flow of water from surface springs 
 not flowing through perfectly defined channels, which flow in his 
 and neighbouring lands into another man's lands adjoining his, 
 the occupant's land (2). 
 
 5. An owner of freehold lands and his lessee will be restrained 
 from working mines in the lands under a watercourse in such a 
 manner as to interfere with the flow and passage of the water, to a 
 supply of which from the stream a plaintiff is entitled,, in and 
 along the watercourse (3) ; but although, if there is no actual 
 damage sustained by the diversion and use of a stream, the 
 Court will not restrain the diversion or use of the water (4), yet 
 if an actual subsidence has taken place in the bed of a stream 
 through the working of minerals lying under the bed, although* 
 the passage of the water has not been interfered with; yet a 
 defendant will be required to give an undertaking not to work 
 the minerals in such a way as to obstruct or interfere with the 
 flow and passage of the water, to a supply of which the plaintiff 
 is entitled (5). 
 
 6. The conditions required to induce a Court of Equity to grant 
 an injunction to restrain the infringement of a right acquired by 
 long user to use the water of a stream, are those following : — If 
 parties have established a legal right to use the water of a stream 
 for their works, and another person comes and erects works on the 
 same stream, above their works, and, by his manufacturing process 
 so fouls the water of the stream as seriously and continuously to 
 obstruct — that is to say, to set up a frequently recurring obstruc- 
 tion, it is not necessary that it should be a never-ceasing one — the 
 effective carrying on of their manufacture ; and if the granting of 
 an injunction wiU restore, or tend to restore, those parties to the 
 
 (1) Atf.-Gen. y. Leeds Corporation, 8 Jur. (N. S.) 1004; 31 L.J. (Ch.) 
 L. R. 5 Ch. 583. 763. 
 
 (2) Mnnor v. Barwell, 1 De Gr. F. & (4) Elmhirst v. Spencer, 2 Mao. & 
 J. 529 ; 2 Giff. 410 ; 4 L. T. (N. S.) G. 45. 
 
 597; 6 Jur. (N. S.) 1233, 1283 ; 7 Jur. (5) Elwell v. Crowther, 31 Beav. 
 
 (N. S.) 788 ; 8 W. R. 300. 163 ; 8 Jur. (N. S.) 1004; 31 L. J. 
 
 (3) Elwell V. Crowther, 31 Beav. 163; (Ch.) 763. 
 
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WATER, RIVERS— WELLS— CANALS— FERBIES. 69 
 
 position in which they previously stood, and in which they have Part II. 
 a right to stand ; and if the injury complained of is of such a f^Eov. 3. ' 
 nature that damages will not be an adequate compensation, that 
 is, such a compensation as will in effect, though not in specie, place 
 them in the position in which they previously stood ; and if, more- 
 over, they use due diligence in vindicating their rights — they have 
 in general a right to come to a Court of Equity and say : " Do not 
 leave us to bring action after action for the purpose of recovering 
 damages ; but interfere with a strong hand and prevent the con- 
 tinuance of the acts we complain of, in order that our legal right 
 may be protected and preserved to us." But that right is only in 
 general, because whenever a Court of Equity is asked for an injunc- 
 tion in cases of such a nature as this, it must have regard, not only 
 to the dry strict rights of the plaintiff and defendant, but also to 
 the surrounding circumstances ; to the rights and interest of other 
 persons which may be more or less involved, before it exercises its 
 jurisdiction of granting an injunction. The mere dry fact of a 
 plaintiff having an abstract right is not enough to justify a Court 
 of Equity as a matter of course, on that right being established at 
 Law, in granting an injunction, if the right be infringed ever so 
 minutely. On the other hand, it is far from the fact that because 
 in an action at Law the jury has given only a shilling or a farthing 
 damages, that that is a ground for concluding that the injury is 
 not serious, and that the case is one in which an injunction ought 
 not to be granted (1). Although a landowner will not in general 
 be restrained from drawing off the subterranean waters in the ad- 
 joining land, yet he will be restrained if in so doing he draws off 
 the water flowing in a defined surface channel through the 
 adjoining land (2). 
 
 7. Upon a severance of tenements held by one owner, ease- 
 ments of necessity, or continuous easements, will pass by implica- 
 tion of law without any words of grant ; and, in such a case, the 
 right to a flow of water along an artificial culvert or pipe from 
 one man's property to that of another man is an easement as of 
 necessity, and in its nature continuous, and it will consequently 
 
 (1) Wood V. Sutcliffe, 2 Sim. (N. S.) (2) Grand Junction Canal Go. v. 
 
 163. Shugar, L. R. 6 Oh. 483 ; 19 W. R. 569. 
 
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70 
 
 WATER, RIVERS— WELLS— CANALS— FERRIES. 
 
 Pabt II. 
 
 Chaptbb I. 
 
 Sect. 3. 
 
 Wells. 
 
 Canals. 
 
 have passed by implication of law to the latter, when his property 
 was conveyed to him, and he may use the water in any way he 
 likes (1). Parties in possession of a foreshore, whether rightful or 
 wrongful as against the Crown, are entitled to restrain a trespasser 
 thereon (2). Pending proceedings at Law to try the right to a 
 watercourse, parties will not be allowed to take the law into their 
 own hands (3). 
 
 8. When a well is supplied with water which percolates through 
 the earth, and does not flow through any defined channel, although 
 the owner of the well is not entitled to the water until it actually 
 enters his well, the occupier of adjoining property will be re- 
 strained from using a cesspool therein in such a manner as to 
 pollute the water coming through his property and supplying the 
 well (4). But it is a question whether the owner of an old well 
 can prevent his neighbour from sinking a well in his own land, on 
 the ground that thereby the supply of water to the old well will 
 be drawn off or diminished (5). 
 
 9. Persons claiming to have acquired rights by prescription in 
 the water of a canal, have to meet the difficulty that these waters 
 have been devoted by the Legislature to a special purpose (6). 
 The doctrine as to use of water in natural or artificial streams 
 does not apply to water passing through locks in a canal, such 
 water being accumulated under the authority of the Legislature, 
 to be used in a particular manner for the benefit of the public (7). 
 And the water passing through the lock of a canal does not con- 
 stitute a watercourse within the Prescription Act (2 & 3 Will. 4, 
 c. 71 s. 2) (8). Parties authorized by a Canal Act to take water 
 from a canal for one purpose will not be allowed to take it for 
 another (9). The pulling down a gate and wasteway of a canal 
 
 (1) Watts V. Kelson, 19 W. R. 338 
 L. R. 6 Ob. 166 ; 40 L. J. (Ch.) 126 
 24 L. T. (N. S.) 209. 
 
 (2) Hastings (^Corporation of) v 
 IvaU, L. R. 19 Eq. 558, 585, et vide 
 Mulholland v. Killen, 9 Ir. R. Eq, 
 471. 
 
 (3) Dewhurst v. Wrigley, C. P. C, 
 329. 
 
 (4) Womersley v. Church, 17 L. T, 
 (N. S.) 191. 
 
 (5) Hammond v. Hall, 10 Sim. 551. 
 
 (6) Staffordshire and Worcestershire 
 Canal Navigation Co. v. Birmingham 
 Canals Navigation Co., 11 Jur. (N. S.) 
 71 ; 13 W. R. 130. 
 
 (7) S. C, L. R. 1 H. L. 254. 
 
 (8) lb. 
 
 (9) Rochdcde Canal Co. v. King, 16 
 Beav. 630 ; 17 Jur. 100 ; 22 L. J. (Ch.) 
 604 ; 2 Sim. (N. S.) 78 ; 20 L. J. 
 (N. S.) (Ch.) 675 ; 15 Jur. 692. 
 
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WATEE, RIVERS-WELLS— CANALS— PERRIES. 71 
 
 company whose canal adjoins and is above any falls will be PaetII. 
 
 1 ,, , Ohapteb I. 
 
 restrained (1). Sect. 3. 
 
 10. A canal company which by its statutory powers has acquired "" 
 the rights of a riparian proprietor in a stream (and a canal 
 company having power under its Act to purchase and hold land is, 
 
 in respect of land so purchased, though not necessarily for all 
 other purposes, in the position of an individual riparian proprietor) 
 may restrain any other riparian proprietor— 'for instance, a water- 
 works company — above him from diverting the stream so as to 
 cause it to flow otherwise than in its ordinary channel, without 
 proving actual damage ; subject, however, to this circumstance, that 
 all streams are puhlici Juris, and all water flowing down any 
 stream is for the common use of mankind who live on the banks 
 of the stream, for themselves, their families, and cattle, and all 
 ordinary domestic purposes (2). 
 
 11. Persons authorized by Act of Parliament to cut a canal, if 
 their funds are insu£Scient for completion of the undertaking, may, 
 on the prompt application of the owner of lands through which 
 they are cutting, be restrained from proceeding (3). 
 
 12. Although a Court of Equity will refuse to make an order 
 specifically to repair the banks of a canal and stop gates and other 
 works, yet it will grant an injunction to restrain a defendant from 
 impeding a plaintiff from navigating and using the canal by con- 
 tinuing to keep the banks, &c., out of repair, and thus the effect of 
 such an order to repair will be obtained (4). 
 
 13. A canal company will be restrained from pumping foul 
 water into their canal so as to make the canal a nuisance, and it is 
 no defence that the foulness was caused by other persons (5). 
 
 14. A mere understanding between the owner of a canal and 
 plaintiffs that so long as the plaintiffs remained good customers of 
 
 (1) The Society, &c. v. The Morris, 24 W. B. 284; 45 L. J. (Ch.) 638; 33. 
 •fee, 2 Halst. CH. 252 ; 1 Halst. Ch. L. T. (N. S.) 513. 
 
 203 (Amr.). (3) Mayor, &c., of King's Lynn v. 
 
 (2) WilU and Berhs Canal Naviga- Pemberton, 1 Sw. 244, 250. 
 
 tion Co. V. Swindon Waterworks Co., (4) Lane v. Newdegate, lOVes. 192. 
 
 L.R. 9 Ch. 451, 457; 30 L. T. (N. S.) (5) Att.-Gen. v. Bradford Naviga- 
 
 443 ; 22 W. R. 444 ; 43 L. J. (Ch.) 393 ; tion Co., 35 L. J. (Ch.) 619 ; L. R. 2 
 
 Smndon Waterworks Co. v. Wilts and Eq. 71 ; 14 W. R. 579 ; 15 L. T. 
 
 Berhs Canal Co., L. E. 7 H. L. 697 ; (N. S.) 9. 
 
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72 
 
 MINES, MINBEALS. 
 
 Pakt II. 
 
 Chapter I. 
 
 Sect. 3. 
 
 Ferries. 
 
 the canal, they should be allowed to use the superfluous water of 
 the canal for the purposes of works of which they are occupiers 
 under an agreement for a lease with the defendant, the use of the 
 water of the canal, though convenient and economical, not being 
 absolutely essential to the plaintiffs' works, will not form the 
 foundation of an equitable right ; but it is otherwise if plaintiffs, 
 with the knowledge of a defendant, have incurred expense in 
 establishing a manufacture for which the use of the water is 
 absolutely necessary (1). 
 
 15. There is a public right of user of a canal with boats propelled 
 by steam power in navigating public canals, provided that it 
 occasions no more than the ordinary injury to the canal which is 
 occasioned by traction by horses (2). 
 
 16. The right of holding a ferry, with the privilege of taking 
 tolls, is a franchise which the Chancellor will protect not only 
 by redress for the past, but by restraining repeated disturbance ; 
 more especially Equity will interfere if the right has been estab- 
 lished by judicial action (3). An exclusive legal right ought to 
 be protected not only by redress for tlie past, but, in Equity, 
 against violations of hourly repetition and interminable duration. 
 Hence, Equity will sustain a bill for an injunction where the 
 owner of a public ferry loses part of his rightful profits by means 
 of a ferry established near his, without right (4). 
 
 Sect. 4. Mines, Minerals. 
 
 1. There is a, prima facie inference at Common Law upon every 
 demise of minerals or other subjacent strata, where the surface 
 is retained by the lessor, that the lessor is demising them in such 
 
 (1) Banhart v. Tennant, L. R. 10 
 Eq. 141. 
 
 (2) Case v. Midland Railw. Co., 27 
 Beav. 247 ; 5 Jur. (N. S.) 1017. 
 
 (3) Newport v. Taylor, 16 B. Mon. 
 699 (Ami.). 
 
 (4) Long v. Beard, N. C. Term R. 
 256 ; M'Boberts v. Washhume, 10 Min. 
 23 ; 16 B. Mon. 699 (Amr.) ; vide Letton 
 
 V. Goodden, L. R. 2 Eq. 123 ; 35 L. J. 
 (Ch.) 427; 14 W. R. 554; Cory y. 
 Yarmouth and Norvjich Railw. Go., 3 
 Hare, 593 ; Churchman v. Tunstall, 
 Hard. 162, cited 2 Anstr. 608 ; Huzzey 
 V. Field, 2 0. M. & R. 432 ; Campbell's 
 Trustees v. Campbell, 6 Pat. So. Ap 
 417. 
 
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MINES, MINERALS. 73 
 
 a manner as is consistent with the retention by himself of his PabtII. 
 own right to support. In the absence of express words shewing sect. 4. ' 
 clearly that he has waived or qualified his right, the presump- 
 tion is, that what he retains is to be enjoyed by him modo et 
 forma, and with the natural support which it possessed before the 
 demise, and a Court of Equity will protect that right by injunc- 
 tion (1). So to a grant or demise of the surface, the right to 
 support is incident, and cannot be taken away except by a clear 
 indication in the instrument of such an interest (2), And even 
 though mines cannot be worked at all without causing the sur- 
 face to subside, the owner of the surface has an absolute right 
 to have his surface supported, and is entitled to restrain the 
 owner of the mines from letting it down, unless authorized to 
 do so by the Legislature (3) ; and a custom entitling the lord in 
 his workings to let down the surface, though proved, is bad and 
 void (4). But a grantor can by express contract derogate from 
 his grant, and, while excepting mines, may reserve a right to 
 remove the vertical and also the lateral support (5). If the 
 superior in a feu charter reserve minerals with the right to work 
 them, the right reserved is a right of property or an absolute 
 ownership, and not a mere servitude or easement, and the surface 
 and the minerals are separate tenements severed in title, and the 
 Court will not grant an interdict to restrain the superior from 
 making a tunnel through the minerals for the conveyance of 
 other minerals belonging to him in lands adjacent (6). Although 
 a grantor of a freehold reserve to himself minerals, among which 
 one mineral cannot be gotten without totally destroying the sur- 
 face, yet the owner of the surface is entitled to an injunction to 
 restrain the owner of the minerals, from getting that mineral in 
 such a way as to destroy or seriously injure the surface (7). 
 
 (1) Dugdale v. Robertson, 3 K. & J. (5) Williams v. Baynall, 15 W. E. 
 695 ; 3 Jur. (N.S.) 687. 272. 
 
 (2) Proud V. Bates, 10 Jur. (N. S.) (6) Hamilton (Duke of) v. Oraham, 
 441 ; 34 L. J. 406. L. R. 2 H. L., Sc. App. 166. 
 
 (3) Wakefield v. Bucdeuch (Duke (7) Mext v. Gill, L. R. 7 Ch. 699 ; 
 o/), 36 L. J. (Oh.) 763; L. E. 4 Eq. 41 L. J. (Ch.) 761, 293; 27 L. T. 
 ^li; Bucdeuch (Duke of) \. Wakefield, (N.S.) 291; 20 W. R. 957,520; 26 
 -L; R. 4 H. L. 377. L. T. (N. S.) 502. 
 
 (4) lb. 
 
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74 MINES, AtlNERALS. 
 
 PaetII. 2. Upon a conveyance of land for the express purpose that 
 
 Sect. 4. ' buildings or other works shall be erected upon it, the right of 
 working minerals being reserved to the vendor, the purchaser is 
 entitled to support from the adjacent and underlying soil, not 
 only for the surface land, but for the buildings erected upon it ; 
 and this right is not affected by the circumstance that the con- 
 veyance is to a company taking " the land under compulsory 
 powers, and not from the vendor voluntarily (1). But although 
 the purchaser is entitled to the natural support of the soil, he 
 cannot rely upon the permanence of a merely accidental state 
 of circumstances for which he has not stipulated; therefore, 
 although a vendor will be restrained from working the mines 
 underneath or adjacent to the land purchased, so as to cause any 
 injury to the surface and superincumbent works, the . purchaser 
 cannot, in the absence of any contract, compel him to keep the 
 mine filled with water to the exclusion of any future working, 
 notwithstanding that it has been in this drowned, abandoned 
 condition for forty years before the time of the purchase (2). But 
 a railway company which has taken lands for the purposes of 
 their railway under the Lands Clauses Act (8 Vict. c. 18) and 
 the Eailways Clauses Act (8 Vict. c. 20), and has had them con- 
 veyed to themselves by a conveyance in the usual form, is no'- 
 entitled to prevent the owner of the mines, subjacent or adjacent, 
 from working and winning away the same without making com- 
 pensation ; and it makes no difference that the mines and minerals 
 are necessary for the support of the railway ; and if the company, 
 after notice of intention to work, refuse to make compensation for 
 the mines requisite for the support of their railway, they can only 
 compel the mine-owner to work his mines in a proper manner 
 according to the custom of the district (3). 
 
 3. If the barrier between two mines has been perforated, 
 though it has been done by the plaintiff, and wrongfully done, 
 yet if the owner of one of the mines artificially conducts his water 
 so as to pass by the perforations into the other mine (that mode 
 
 (1) North Eastern JRailw. Co. v. (2) lb. 
 
 Elliott, 6 Jur. (N. S.) 817 ; Elliott v. (3) Great Western Railway Co. v. 
 
 North Eastern Sailw. Co., 10 H. L, C. Bennett, 36 L. J. (Q. B.) 133, H. L. 
 333. 
 
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MINES, MINERALS. 75 
 
 of removing the water from his mine being most beneficial to Pakt II. 
 himself), but he thereby causes irreparable damage to the owner Seot. 4. 
 of the other mine, the Court will grant a mandatory injunction, 
 so as to keep things in the state (that is to say, oblige them to be 
 restored to the state) in which they were ante litem motam (1). 
 Although a proprietor of a mine in a lower stratum must hold 
 subject to the risk of underground water flowing from ordinary 
 and proper mining operations in upper strata, yet the proprietor 
 of upper strata must work in the ordinary, proper, and skilful 
 way, and must not accumulate a mass of water and then throw 
 that water in a mass into a mine lower down belonging to 
 another proprietor ; thus the upper proprietor will be restrained 
 from tapping a stream or river, and thereby letting it in and 
 flooding a lower proprietor's mine (2). 
 
 4. The Court will restrain the cutting into coal barriers belong- 
 ing to a party working coal mines, by a party working adjoining 
 mines, upon a prima facie case of the trespass being made out (3). 
 iSo the Court will grant an injunction prohibitory in form, but 
 mandatory in its effect, against a lessee, tenant of a coal mine, who 
 is acting in contravention of the covenants, to restrain him from 
 permitting a communication with an adjoining mine to continue 
 open, and water to flow therefrom ; the effect intended being to 
 compel the lessee to close the communication (4). But where the 
 lessee of a mine has constructed a channel through which water 
 from another mine of the lessee naturally flows, the lessor of the 
 mine, on the determination of the lease, has no right to an injunc- 
 tion to restrain the lessee from permitting his water to flow 
 through the channel in the mine (5). 
 
 5. In a suit for an account of coal wrongfully worked by the 
 defendant, where the working is inadvertent and without fraud, 
 the Court will, in assessing the compensation for the coal got by 
 
 (1) Westminster Brymho Coal and (3) Whaley v. Brancher, 10 Jur. 
 Cohe Co. V. Clayton, 36 L. J. (Oh.) (N. S.) 535. 
 
 476 ; vide Eobinson. v. Byron, 1 Bro. (4) Mexborough (Earl of) v. Bower, 
 
 C. 0. 588. 7 Beav. 127. 
 
 (2) Crompton v. Lea, L. E. 19 Eq. (5) Jegon v. Vivian, 19 W. R. 365 ; 
 115 ; 23 W. R. 53; 31 L. T. (N. S,) 40 L. J. (Oh.) 389 ; L. R. 6 Oh. 742 ; 
 469 ; 44 L. J. (Oh.) 69. Lewis v. Fothergill, L. R. 5 Oh. 103 ; et 
 
 vide Martin v. Porter, 5 M. & W. 351. 
 
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76 MINES, MINEEALS. 
 
 Pari H. a defendant, direct him to be charged only with the fair market 
 
 Chapter T 
 
 Sect. 4. ' value of the coals, as if the coal-field had been purchased by him 
 ' of the plaintiff (1). But where a mine-owner passes his boundary, 
 
 and takes coals from his neighbour's mine, although he is liable 
 to account for the value of the coals at the pit's mouth, it will be 
 with just allowances for the cost of raising, but not of getting or 
 severing ; and he is also liable for the amount of damage by reason 
 of his having broken through the boundary between his mine and 
 the plaintiffs n^ine (2). But in assessing damages for trespass 
 done in working coal, the Court will inquire whether the trespass 
 was committed while there was a bond fide question of title pend- 
 ing, or under a mere assertion of right ; and in the former case, 
 the trespasser will be allowed the expenses of winnings an'! getting, 
 as well as of raising and hauling the coal (3). And if the pro- 
 prietors of a mine so work their mine by opening cuttings to draw 
 off the water therein, that they cause the neighbouring and 
 adjoining mine to be flooded, and from such openings they also 
 abstract coal from their neighbour's mine, and sell the same for 
 their own benefit, the Court will restrain them from further pro- 
 ceeding, and compel them to stop up the existing openings and 
 cuttings, and to give compensation for the damage sustained, and 
 make them account for the value of the coal abstracted (4). It 
 may be laid down generally, that, unless in the case of mines, the 
 rule is — no injunction, no account. But as to mines, a party may 
 have an account even in cases where no injunction, will lie (5). If 
 a person only threaten to open mines, the plaintiff may come into 
 Court to restrain him from doing it (6) ; nor is it necessary to stay 
 till waste is actually committed, where the intention appears, and* 
 the person insists on his right to do it (7). 
 
 6. The stopping the working of a mine is a thing which of 
 all others a Court of Equity is most averse to do, though it may 
 under certain circumstances be compelled to do it (8) ; so the 
 
 (1) miton V. Woods, L. B. 4 Bq. 432. (4) Plant v. Stott, 21 L. T. (N.S.) 106. 
 
 (2) Llynvi Co. v. Brogden, L. E. (5) Parrott v. Palmer, 3 My. & K. 
 li Eq. 188 ; 40 L. J. (Ch.) 46. 632. 
 
 (3) Jegon v. Vivian, 19 W. E. 365 ; (6) Gibson v. Smith, 2 Atk. 182. 
 40 L. J. (Oil.) 389 ; L. E. 6 Ch. 742 ; (7) lb. 
 
 Lewis V. Fothergill, L. E. 5 Ch. 103 ; et (8) Hilton v. Lord Granville, Or. & 
 vide Martin v. Porter, 5 M. & W. 351. Ph. 283 ; 4 Beav. 130. 
 
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CUSTOMS, PRESCRIPTION— RiaHT OF COMMON— FAIRS, &c. ^^ 
 
 Court with reluctance "grants an injunction to stay working a PabtII. 
 colliery (1). ^g.^"/' 
 
 7. The right to coal under customary freeholds is the same as 
 in the case of lands of ordinary copyhold tenure; in such lands, i. e., 
 such as are held by copy of Court roll, not at the will of the lord, 
 but according to the custom of the manor, the freehold is in the 
 lord, and in the absence of custom (the onus of establishing which 
 lies upon the tenant) the tenant has no right to work the 
 minerals (2). 
 
 Sect. 5. Cudoms, Prescription — Biffht of Common — Fairs, 
 Markets — Fisheries. 
 
 1. A claim as woodwards, or foresters of the Crown, of a right Customa, 
 to grant gales or licences for working stone-quarries in uninclosed "^^""'^ ^ 
 lands, the soil whereof is in the Crown, and to apply the fees or 
 
 rents in respect of the gales to the grantors' own use, without 
 accounting to the Crown, cannot exist in point of law ; for, with 
 regard to the grantees, it is a claim to subvert the soil, and 
 carry away the substratum without stint or limit, which cannot 
 be established (i) by custom, for it is a profit a prendre, which 
 cannot be claimed in alieno solo ; nor (2) by prescription, for pre- 
 scription, to be good, must be both reasonable and certain, and 
 this is neither ; nor (3) by presuming a lost grant, for prescription 
 presupposes a grant ; and if such a grant cannot be presumed 
 before, a fortiori it cannot after, the period of legal memory ; , 
 and a claim which cannot lawfully be made upon one of these 
 three foundations cannot be substantiated by a user, however 
 long, and is not saved by any Statute of Limitations ; and a valid 
 prescription exempting ofiScers of the Crown from accounting for 
 the proceeds of the Crown's soil which they may have sold, cannot 
 be shewn ; and the granting of such gales, and the working of 
 quarries under them, will be restrained (3). 
 
 2. There may unquestionably exist, as to mines, a custom that 
 the lord of the manor cannot take without consent of the copy- 
 
 ' (1) Anon., Amb. 209. (3) Att.-Gen. v, MatUas, 4 K. & 
 
 (2) Portland (Duke of) v. Hill, L. R. J. 579 ; 27 L. J. (Oh.) 761. 
 2 Bq. 765. 
 
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•78 
 
 CUSTOMS, PRESCRIPTION— RIGHT OP COMMON— FAIRS, &o. 
 
 Paet II. 
 
 Chapter I. 
 
 Sect. 6. 
 
 Eight of 
 common. 
 
 holder ; and, vice versa, that the copyholder cannot touch the 
 mine without the consent of the lord ; but, with regard to timber, 
 it seems rather admitted as a text doctrine than established by- 
 decision (1). 
 
 3. If the lord enfranchise a copyhold, with all common thereto 
 belonging, though the common be extinct at Law, yet it subsists 
 in Equity (2). For though the prescription of common to the 
 copyhold is destroyed by the enfranchisement, and the grant 
 of the copyholds, with all common thereunto belonging and 
 appertaining, gives no right of common, because when enfranchised 
 there is no common, in point of law, belonging or appertaining 
 thereunto (3) ; yet the common subsisting in Equity, a Court of 
 Equity will restrain proceedings at Law by the lord, and decree 
 the tenant the same right of common as belonged to the copyhold 
 prior to the enfranchisement (4). 
 
 4. A bill will lie against the lord by one copyholder on behalf 
 of himself and the other copyholders, being numerous, to have 
 their rights of common ascertained ; but one copyholder not suing 
 on behalf of all cannot maintain such a bill ; the remedy of an 
 individual in such a position being by action at law (5). So a 
 suit for the purpose of establishing a right of common over the 
 wastes of a manor may be maintained by one freehold tenant of 
 the manor, on behalf of himself and all other freehold tenants. 
 And the Court will presume the grant, where the user has been 
 long-continued and uninterrupted, and the burden of proof lies on 
 the lord who seeks to disturb the long-contiaued user (6). If the 
 lord claims a right to enclose a part of the waste, the onus of ■ 
 shewing that sufficient waste is left for the commoners lies upon 
 the lord (7). Where the lord has attempted to stop the user of a 
 common, the fact that some of the tenants have yielded to such 
 
 (1) Whitechurch v. Eolwortlxy, 19 
 Ves. 214, vide post. 
 
 (2) Styant v. Staher, 2 Vern. 250, 
 2nd Ed. 
 
 (3) Dorson v. Hunter, Noy, 136. 
 
 (4) Styant v. Staker, 2 Vern. 250, 
 2nd Ed. 
 
 (5) Phillips V. Hudson, L. E. 2 Ch. 
 243; 15 W. K. .370. 
 
 (6) Warrich v. Queen's College, 
 Oxford, L. E. 6 Ch. 717 ; L. E. 10 Eq. 
 105 ; 18 W. E. 719; 19 W. E. 1098; 
 39 L. J. (Ch.) 636 ; 40 L. J. (Ch.) 780 ; 
 25 L. T. (N. S.) 254. 
 
 (7) Betts V. Thompson, 18 W. E. 
 1099; 19 W. R. 1098; L. B. 6 Ch. 
 732 ; 25 L. T. (N. S.) 363. 
 
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CUSTOMS, PRESCEIPTION— EIGHT OF COMMON— PAIRS, &c. 79 
 
 attempts is not an interruption of the right within the meaning Paet ir. 
 of the Prescription Act (2 & 3 Will. 4, c. 71), so as to bar the ^™5.^' 
 
 rights of freeholders who, as a body, have never yielded to, or 
 acquiesced in, the claim of the lord (1). So a freehold and 
 copyhold tenant, of a manor can maintain a suit to establish a 
 right of common, on behalf of himself and all other the freehold 
 and copyhold tenants, notwithstanding the rights of each free- 
 holder are separate and distinct from those of the copyholders. 
 And notwithstanding the lord of a manor and the tenants may 
 have arranged, more than two hundred years before filing a bill, 
 that a specified extent of the waste might be approved, and that 
 arrangement may not have been disturbed during that time, yegt 
 on approving a further portion of the waste the burden lies on 
 the lord of shewing that he is entitled to approve, and that 
 sufficient is left for the commonable rights of the tenants, and in 
 default thereof he will be restrained from enclosing any further 
 lart of the common (2). 
 
 5. The lords of a manor, although empowered by an Act to 
 jrant a limited quantity of parish waste land for a certain purpose, 
 will be restrained from granting part of a village green (part of 
 the waste of the manor), which the inhabitants have been from 
 time immemorial accustomed to use for their amusement and 
 recreation, such common or customary rights not being strictly 
 manorial (3). 
 
 6. A right of common of pasture for cattle, appurtenant to 
 lands and tenements over all the waste lands of a Forest, may 
 subsist and be claimed by prescription, and Equity will, at the 
 suit of owners and occupiers of lands in the Forest, restrain the 
 lords of the manors within the Forest from inclosing any part of 
 the waste (4). 
 
 7. It is essential to the complaint of an old market, against a Fairs, 
 
 Markets. 
 
 (1) Warrick v. Queen's College, 18 W. R. 272, n. 
 
 Oxford, L. E. 6 Ch. 717 ; L.- E. 10 Eq. (3) Forbes v. Ecclesiastical Commis- 
 
 105 ; 18 W. E. 719 ; 19 W. E. 1098 ; sioners of Evgland, 21 W. E. 169 ; 
 
 39 L. J. (Ch.) 636 ; 40 L. J. (Ch.) 780 ; 27 L. T. (N. S.) 511 ; 42 L. J. (Ch.) 
 
 25 L. T. (N. S.) 254. 97 ; L. E. 15 Eq. 51. 
 
 (2) Smith T. Ea/rl Brownlow, L. E. (4) Commissioners of Sewers v. 
 9 Bq. 241 ; 18 W. E. 271 ; 21 L. T. Glasse, L. E. 19 Eq. 134 ; 44 L. ,J. 
 (N. S.) 739 : et vide Hoare v. Wilson, (Ch.) 129. 
 
 1 
 
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80 
 
 COPYHOLDS. 
 
 Part II. 
 
 Chapter I. 
 
 Sect. 5. 
 
 Fisheries. 
 
 new one set up near it, that the old one was competent to the 
 accommodation of the public, because otherwise they could have 
 no right to complain (1). But a Court of Equity will not interpose 
 imless the title is established either by record (2) or at Law (3). 
 
 8. Fairs and markets stand upon a very ancient principle, that 
 persons cannot interpose themselves in the exercise of that 
 franchise against the right conveyed by grant, but no grant can 
 be made, by virtue of that authority, injurious to the common 
 interests of the public; therefore, reasonable tolls only can be 
 demanded, and ancient usage has generally determined what they 
 shall be. But if the claim be to take reasonable rates, then if 
 a person is going to that fair, or to that market, and is refused 
 the accommodation required by law to be given him, the question 
 is not whether he may bring an action for damages for being 
 prevented that enjoyment, but whether a bill in Equity can be 
 filed for an injunction to permit any person to come there that 
 pleased ; and certainly such a bill has never been heard of (4). 
 
 9. A several and free fishery in a river, though belonging to 
 parties not owners of the water or of the bed of the river, will be 
 protected from the construction of a sewer, the outlet to which is 
 intended to open into the river within the limits of the free 
 fishery (5). 
 
 10. Parties will be restrained from fishing in a river, at the suit 
 of the grantees of the fishery from the river to the sea, where 
 the title has been established (6). 
 
 Sect. 6. Copyholds. 
 
 1. A Court of Equity has concurrent jurisdiction with Courts of 
 Law to relieve a copyholder against an illegal seizi}re of the 
 copyhold property by the lord, and is not limited to compelling 
 the lord to do right as between two persons claiming to be copy- 
 
 (1) Ex parte O'JReilly, 1 Ves. Jnn. (5) Oldaker v. Bunt, 19 Beav. 485; 
 114. 6 De Q. M. & G. 376 ; 31 Bug. Law 
 
 (2) Anon., 1 Ves. Sen. 476. and Bq. 503 (Amr.). 
 
 (3) Anon., 2 Ves. Sen. 414. (6) Ashworth v. Browne, 10 Ir. Ch. 
 
 (4) Weale v. West Middlesex Water Eep. 421. 
 Co., 1 Jac. & W. 373. 
 
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COPYHOLDS. 81 
 
 holders ; and the circumstance of the copyhold lands being subject ^^rt ii. 
 
 , . , , , 1 1 . , . , . Chavtee I. 
 
 to a demise by the copyholder is such a circumstance as renders it Sect. 6. 
 
 the more proper course to seek relief in Equity, on the ground that 
 
 unless the plaintiff was willing to put an end to the lease of his 
 
 tenant by taking proceedings against him to enforce a forfeiture, 
 
 so as to proceed at once against the lord, either by ejectment or 
 
 trespass, for the wrong he had sustained at his hands, the tenant 
 
 must wait until the determination of the lease before his rights 
 
 could be ascertained (1). Equity has jurisdiction over a judgment 
 
 in a copyhold Court (2). 
 
 2. The lord of a manor has not by law, independently of custom, 
 any such property or interest in the timber growing on the copy- 
 hold premises of a tenant as entitles him to enter without the 
 consent of the tenant and cut down to his own use and benefit the 
 timber growing thereon, leaving a sufficient quantity for reasonable 
 botes and estovers; and a Court of Equity will in such a case 
 restrain the lord from so doing (3). The estate of a copyholder in 
 an ordinary copyhold is an estate in the soil throughout, except as 
 regards timber-trees and minerals, as to these, the property is in 
 the lord ; but in the absence of custom, the lord cannot get them, 
 for the possession is in the copyholder. But if the lord remove the 
 minerals, the copyholder is entitled to the possession of the 
 space where the minerals formerly were. It is therefore a trespass 
 on the part of the lord to bring under a manor, through that space, 
 minerals from mines outside that manor, and the copyholder is 
 entitled to an injunction to restrain the trespass (4). 
 
 3. The lord of the manor is entitled to an injunction and an 
 account in respect of waste by a copyholder (5). A copyholder 
 tenant in fenny and marshy lands may, by custom, be entitled to 
 dig up the lord's soil for turf; but an occupant, who is no more 
 than a tenant at will, can never have a right to take away the soil 
 of the lord, that is to say, a right to a common of turbary. But if 
 
 (1) Andrews v. Eulse, 4 K. & J. 392 ; (2) 1 EoU. Abr. 60, 373. 
 
 4 Jur. (N. S.) 581 ; et vide Litton's (3) Wliitechurch v. Eolworthy, 19 
 
 Case, Caiy, 8; Viner's Abr., "Cop." Ves. 213; S. C. 4 M. & S. 340, vide 
 
 E. d., pi. 2 (vol. vi. p. 152) ; Coke, Cop. p. 78, ante. 
 
 s. 9; Pitzherbert, Nat. Brev., p. 12; (4) Eardley y. Granville, 3 Ch. D 
 
 Com. Dig. " Cop." p. 2 ; Fitz. Abr. tit. 826 ; 24 W. E. 528 ; 34 L. T. 609. 
 
 " Subposna," 21. (5) Richards v. Noble, 3 Mer. 673. 
 
 G 
 
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82 LEASES. 
 
 Part II. there be no such custom, the Court will stay waste in digging up 
 Sect. 6. tlie lord's soil (1), A custom in a manor that copyholders of 
 ' inheritance may break the surface and dig and get clay without 
 stint, out of their copyhold tenements for the purpose of making 
 bricks to be sold off the manor, is good in law (2). And there may 
 be a custom to dig vitreous or silver sand, used for the purpose bf 
 making glass, on the tenant's own tenement, and also a custom to 
 dig sand generally. And further, a custom may be good for copy- 
 holders to carry away the entire soil of their copyhold tenements. 
 Evidence of a custom to dig such vitreous sand for twenty-seven 
 years, and of a custom to dig sand generally for a long period, is 
 sufBcient; and the Prescription Act (2 & 3 Will. 4, c. 71, s. 1) 
 applies only to cases where a person claims by custom, prescription, 
 or a profit or a benefit a prendre from the land of another, and has 
 no application to a fight claimed by a copyholder on his copyhold 
 tenement according to the custom of the manor, which is not, for 
 this purpose, the land of the lord of the manor. That statute does 
 not invalidate the natural effect of acts not thirty years old as 
 evidence in support of the existence of a custom, and the Court 
 will not restrain a copyholder from exercising such customs, if 
 established (3). 
 
 Sect. 7. Leases. 
 
 1. A lessor will not be allowed to derogate from his grant (4), 
 and Equity will aid a tenant in preventing his landlord from 
 breaking a covenant which will work a forfeiture of his (the 
 tenant's) estate, although not made with the tenant, and even when 
 a suit at Law cannot be maintained on such covenant (5). So 
 Equity will also restrict a lessee to the specific performance of his 
 covenants (6). 
 
 2. It is no defence for the assignee of an original lease who hais 
 
 (1) Dean, &c., of Ely v. Warren, (4) Newby v. Harrison, 1 J. & H. 
 2 Atk. 189. 393 ; 4 L. T. (N. S.) 424. 
 
 (2) Salisbury (Marquis of) v. fflad- (5) Sogers v. Danforth, 1 Stookt. 
 stone, 9 H. L. C. 692. 289 (Amr.). 
 
 (3) ffanmer v. Chance, 11 Jur. (6) 2 Story, Eq. 27 ; 2nd Ed. ; iVaJ- 
 (N. S.) 897 ; 34 L. J. (Ch.) 413 ; 4 De brown v. Thornton, 10 Ves. 159. 
 
 G. J. & S. 626. 
 
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LEASES. ' 83 
 
 taken a renewed lease, to say that he would be liable to forfeiture Pakt li. 
 
 of the renewed lease if he were compelled to give specific per- Seot. 7. 
 
 formance of an agreement entered into by himself when the " 
 
 original lease was assigned to him. If the circumstances which 
 
 give rise to the danger of forfeiture originate in a defendant's own 
 
 feicts, the Court will in such a case decree specific performance 
 
 against the defendant, and leave him open to the consequences of 
 
 his own acts (1). Upon a contract for an agreement to renew a 
 
 lease, the solvency or insolvency of the tenant is an objection of 
 
 weight, depending upon the circumstances, and the insolvency and 
 
 other circumstances, will disentitle the tenant to an injunction 
 
 against an ejectment by a landlord who has entered into such an 
 
 agreement (2). 
 
 3. There is no equity to compel a lessor of a lease which has 
 been disclaimed — for instance by a trustee in bankruptcy — ^to 
 grant an under-lease in accordance with the terms of an agree- 
 taent by a lessee to make an under-lease, where the provisions 
 of that agreement differ in material respects from those in the 
 original lease ; and the Court will not restrain an ejectment 
 against a party who is in possession under such an agreement (3). 
 But a tenant in possession is entitlfed to a specific performance of 
 a parol agreement for a lease from his lessor, where having con- 
 tracted to sublet, his sub-lessee has expended money in alterations 
 and repairs with the knowledge and approval of the original 
 lessor ; for where a tenant already in possession, acting on the 
 faith of a parol agreement with his lessor, afterwards does any- 
 thing which alters his position for the purpose of carrying out a 
 new contract, that takes the case out of the Statute of Frauds, 
 and the Court will restrain an ejectment against the original 
 lessee (4). 
 
 (1) Helling v. Lumley, 4 Jur. (N. S.) (4) Williams v. Evans, L. E. 19 Bq.. 
 868 ; 28 L. J. (Ch.) 249. 547, 554 ; 44 L. J. (Ch.) 319 ; 23 W. R. 
 
 (2) BucUand v. Sail, 8 Ves. 92. 466 ; 32 L. T. (N. S.) 359 ; vide Nunu 
 
 (3) Taylor v. Oillott, L. E. 20 Eq. v. FaUan, L. E. 1 Ch. 35. 
 682 ; 44 L. J. (Ch.) 740 ; 32 L. T. 
 
 (N. S.) 795 ; 24 W. E. 65. 
 
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84 EXECUTIONS, ELEGIT. 
 
 Paet II. Sect. 8. Executions, Elegit. 
 
 Chapteb I. 
 
 1. If a decree has been obtained by a creditor on behalf of him- 
 self and other creditors, a prior creditor who has obtained judg- 
 ment at Law in ejectment grounded on an elegit, will not be 
 allowed to get into possession (1). The 27 & 28 Vict. c. 112, 
 which enacts (s. 1), that no judgment entered up thereafter shall 
 affect any land until such land shall hare been actually deliTered 
 in execution by virtue of a writ of elegit, and the writ registered, 
 but that the judgment creditor to whom land has been actually 
 delivered in execution shall be entitled forthwith to have the 
 benefit of his judgment (2), does not, however, deprive a judg- 
 ment creditor of his charge who is unable to have the land de- 
 livered to him (3). 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 out an 
 elegit (4). A judgment creditor under an elegit 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 obtained by a debenture-holder ; and to the provisions of 
 the Act of Parliament as to the user of the undertaking for the 
 public (5). He may, under his elegit, take the rolling stock and 
 chattels of the company (6), but he will be restrained from taking 
 up the rails or the fixtures (7). 
 
 2. With regard to the terms upon which a judgment will 
 be enjoined, where a judgment debtor comes into Equity for pro- 
 tection on the ground that he has satisfied the judgment, the door 
 is fully open for the Court to modify or grant his prayer, upon 
 such conditions as justice demands (8). 
 
 (1) Sumner v. Kelly, 2 Sch. & Lef. (5) Potts v. Warwick and Birming- 
 398. ham Canal Co., Kay, 142. 
 
 (2) See Ee Isle of Wight Ferry Co., (6) See Gardner v. Lmdcm, Chair 
 34 L. J. (Oh.) 194 ; JRe Hull and Earn- ham, and Bmer JRailw. Co., L. B. 
 sea Railw. Co., 35 L. J. (Ch.) 838. 2 Oh. 201. 
 
 (3) Thornton v. Finch, 4 Oiff. 515. (7) Legg v. Mathieson, 2 Giff. 71. 
 
 (4) Eussell V. East Anglian Railw. (8) Mechanics, &c. v. Lynn, 1 Pet. 
 Co., 3 Mac. & G. 104. 376 (Amr.). 
 
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FORFEITURES— COVENANTS. 85 
 
 Sect. 9. Forfeitures. Part ii. 
 
 Ohafteb I. 
 1. A Court of Equity cannot restrain a party from forfeiting au 
 
 estate in expectancy in order to defeat a security thereon — ^thus a 
 
 tenant for life in remainder cannot be restrained from forfeiting 
 
 his life estate by his non-user of a name and arms clause, in order 
 
 to enable a party to realise a charge thereon under a judgment (1). 
 
 The Court will not relieve against a forfeiture arising under a 
 
 contract between a plaintiff and defendant, if the defendant has 
 
 fully performed his part of the contract, and that although the 
 
 contract give an alternative option to the defendant not involving a 
 
 forfeiture, if the alternative option do not abridge or qualify the 
 
 right of a forfeiture — for instance, the Court will not relieve a 
 
 builder against a forfeiture for default in completing buildings in 
 
 a certain time, if the landlord has fully performed his part of the 
 
 contract, although the landlord have an alternative option not 
 
 involving a forfeiture (2). 
 
 Sect. 10. Covenants. 
 
 1. A Court of Equity will not relieve against a wilful voluntary 
 breach of covenant (3). But if a defendant prevents the plaintiff's 
 performance of a covenant, a Court of Equity will remove the 
 opposition (4). The Court will restrain the breach of a covenant, 
 though the breach has been of a gradual and not of a conspicuous 
 character (5). An act which is only impliedly forbidden under a 
 covenant, will be restrained (6). It is no defence to say that the 
 covenantee sustains no damage from a breach, for if a covenantor 
 derives any benefit therefrom, there is no reason why the covenantee 
 should not get some benefit of it (7). 
 
 2. If a covenant in a lease is indefinite or uncertain in its terms 
 
 (1) Semple v. Holland, 33 Beav. 94. 541 ; 35 L. J. (Oh.) 393 ; 14 L. T. 
 
 (2) Graft v. Goldsmid, 24 Beav. 312. (N. S.) 134. 
 
 (3) DescarUtt v. Dennett, 9 Mod. 22. (6) Hall v. Box, 18 W. R. 820. 
 
 (4) Wood V. Tirrdl, Gary, 59. (7) Wells v. Attenborough, 19 W. R. 
 
 (5) Mitchell V. Steward, L. R. 1 Bq. 465 ; 24 L. T, (N. S.) 312. 
 
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00 COVENANTS. 
 
 Past II. the Court will not interfere by way of injunction (1). But if the 
 ChaptbbI. ^ \. . 1,1. 1, • 1 
 
 Sect. 10. covenants in a lease are clear and distinct, and the breacn is also 
 
 clear and distinct, and irreparable injury is likely to arise, it is 
 the duty of the Court to interfere, and, if required so to do, by 
 granting an ihterlocutory injunction. If these conditions are not 
 fulfilled, according to the whole course of the Court, it becomes a 
 . question of comparative injury — on which side would greater 
 injury be caused ? — and the Court will weigh the balance of incon" 
 venience occasioned by granting or refusing an interlocutory 
 injunction (2). If the construction of a covenant or contract is 
 clear, and the breach clear, it is not a question of damage, but the 
 mere circumstance of the breach of contract affords sufficient 
 ground for the Court to interfere by injunction (3). And the 
 Court will in such cases exercise its jurisdiction by granting a 
 mandatory injunction (4). And it would appear that the Court 
 may so interfere whether the breach has or has not actually been 
 committed, for in a case of contract it is. enough if the defendant 
 claims and insists on a right to do the act, although he has not 
 already done it mocio et forma, as alleged (5). But no injunction 
 will be granted to restrain a breach of a covenant which is too 
 vague (6). 
 
 3. Where there is a covenant not to do a particular act, and a 
 penalty or forfeiture is annexed to the doing of that act, the juris- 
 diction of the Court is not ousted by the imposition of the pena:ltyi 
 nor does it authorize the party to do the act, and before the act is 
 done the Court will restrain him by injunction (7). And after the 
 act is done, the Court will restrain the continuance of the breach 
 where the sum is in the nature of a penalty and not of liquidated 
 damages (8). The restraining of a breach of covenant, where the 
 
 (1) Low V. Innes, 10 Jur. (N. S.) 673 ; 45 L. J. (Cli.) 404 ; 24 W. B. 
 1037 ; 4 De G. J. & S. 286 ; 11 L. T. 481. 
 
 (N. S.) 217. (i) Manners (Lord) V.Sutton, supra. 
 
 (2) Wilkinson v. Sogers, 12 W. E. (5) Tipping v. Uckersley, supra^ 
 284. (6) Armstrong v. Courtenay, 15 Jr. 
 
 (3) Tipping v. Echersley, 2 K. & J. Ch. Eep. 138. 
 
 264 ; vide Leech v. Schweder, L. R. 9 (7) French v. Macabe, 2 D. & War. 
 
 Ch. 463 ; 22 W. E. 633; 43 L. J. 269 ; 1 Con. & L. 459, 559. 
 
 (Cb.) 487 ; 30 L. T. (N. S.) 586 ; (8) Bray v. Fogarty, 18 W. E. 
 
 Manners {Lord) v. Sutton, 1 Ch. D. 1152 ; 4 Jr. R. Eq. 544. 
 
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COVENANTS. 87 
 
 covenant is secured by forfeiture of the lease and a penalty, is in Paet II. 
 the nature of specific performance, and the breach of the agree- gEoj. lo. ' 
 ment may consist in repeated acts (1). The mere power of re- 
 entry for a breach of a covenant does not preclude a lessor from 
 coming to a Court of Equity to restrain the commission of the 
 breach, nor is he bound to adopt his remedy of re-entry (2). 
 , 4. The Court will entertain a bill in a proper case, although filed 
 by a person not clearly entitled to sue for damages at Law, if it be 
 established that a substantial agreement was entered into to the 
 benefit of which the plaintiff is, in Equity, entitled (3). And the 
 right to enforce in Equity, the benefit of a covenant affecting the 
 enjoyment of land will pass to the alienee of that land, without 
 being specifically mentioned in the instrument of alienation. But 
 it is doubtful whether, where there are two alienees of land, each 
 of whom covenants with his vendor respecting the mode of enjoy- 
 ment of that land, and also whether, where the alienees neither 
 covenant with each other, nor take any engagement with the 
 vendor ; in such cases either alienee has any remedy against the 
 other infringing the covenant (4), But if an estate vested in 
 trustees is sold in plots subject to restrictive covenants, of which 
 the vendors as covenantees are trustees for all persons claiming 
 under them, each purchaser has an equity against the other 
 purchaser to compel the observance of the covenants, but such 
 equity may be lost by acquiescence (5). But a plaintiff in a suit 
 to enforce such an equity, though barred by acquiescence or other- 
 wise from his remedy by injunction, may obtain damages in 
 Equity. And that even though no action would be maintain- 
 able at Law by the plaintiff, and a deviation sanctioned by the 
 vendors in breach of their duty cannot displace the plaintiffs 
 equity under such covenants (6). 
 
 5. In a case resting simply upon covenant, if the party seeking 
 specific performance of a covenant be in possession, he has a right 
 
 (1) Barrett v. Blagrave, 5 Ves. 
 
 5 De G. M. & G. 739. 
 
 555. 
 
 (4) lb. 
 
 (2) Parker v. Whyte, 32 L. J. (Ch.) 
 
 (5) Eastwood v. Levers, 33 L.. J. 
 
 520. 
 
 (Ch.) 355 ; 12 W. 11. 195 ; 9 L. T. 
 
 (3) CMd V. Douglas, 1 Kay, 560, 
 
 (N. S.)615; 4DeG. J. &S. 114. 
 
 575 ; 2 Jur. (N. S.) 350 ; et vide S. C. 
 
 (6) Eastwood v. Levers, supra. 
 
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S8 COVENANTS. 
 
 PaktII. to the enjoyment of the property modo et forma, according to his 
 Sect. 10." covenant; but if he be entitled in remainder or m reversion' 
 only, he must shew that he has sustained some material or special 
 damage by reason of the breach to entitle him to relief of this 
 nature. Thus a Court of Equity will not, at the instance of a 
 person having a mere reversionary interest in the freehold, inter- 
 fere to restrain the breach of the covenant entered into by the 
 tenant, with the lessor, against carrying on a business upon the 
 demised premises, unless special or material damage is shewn. A 
 remainderman cannot have any remedy on the mere ground of in- 
 fraction of a special agreement, but must shew special damage by 
 reason of such infraction. And it would appear that if there is any 
 injury to the material of a house and premises, or if a grossly 
 noxious trade has been carried on, in breach of a covenant, a 
 party may be entitled to relief, although claiming in remainder 
 only, and not in possession (1). 
 
 6. Acquiescence in the violation of a covenant to a certain 
 extent, is a sufficient objection to an interlocutory application for 
 an injunction against a greater violation of it (2). And on such an 
 application by way of motion to restrain an alleged breach of cove- 
 nant, if the question in dispute appears doubtful, the burden of 
 proof is' on the plaintiff, to shew that the balance of convenience is 
 in favour of granting the injunction (3). But acquiescence by a 
 covenantee in a partial deviation from a building plan, and delay 
 in making an immediate application to tbe Court, will disentitle 
 the covenantee to an injunction to restrain the breach (4) ; and a 
 landlord who relaxes in favour of some of his tenants, a covenant 
 entered into for the benefit of all, is not entitled to an injunction 
 to restrain the other tenants from infringing that covenant (5). 
 So no injunction will be granted where there is a much greater 
 facility of indemnifying the plaintiff than the defendant, according 
 as the one or the other may succeed at Law (6). If a covenantee 
 
 (1) Johnstone v. Hall, 2 K. & J. (4) Boper v. Williams, T. & R. 18. 
 414; 2 Jur. (N. S.) 780; 25 L. J. (5) lb. 
 
 (Oh.) 462. (6) Bighy r. Great Western Bailw. 
 
 (2) Child V. Douglas, 5 De Gr, M. & Co., 2 Ph. 44; 1 Coop. C. C. 3; 4 
 G. 739. Railw. Cas. 491 ; 10 Jur. 488, 531. 
 
 (3) lb. 
 
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COVENANTS. 89 
 
 has no notice of breaches of covenant during the term, till PabtIL 
 after the end of the term, the Court will not grant specific Sect. lo. ' 
 performance of a covenant to renew (1). If the right to re- 
 newal depends upon the performance of a condition precedent — 
 for instance a covenant to repair — the Court wiU not grant spe- 
 cific performance of the covenant to renew, nor restrain an action 
 of ejectment by the lessor (2). 
 
 7. If a party's own encroachments in breach of a covenant, are 
 immaterial, and do not interfere with the enjoyment of others, he 
 will not be disentitled to complain of an infringement, if any, by 
 another party in breach of a similar covenant (3). 
 
 8. A covenant running with the land is binding 'on the assignee 
 of the lessee, and that although his " assigns " are not named in 
 the covenant; and an injunction will be granted to restrain a 
 breach of such a covenant — for instance, a covenant to use a 
 house as a dwelling-house only — by an assignee and his sub- 
 tenant of the lease (4). But a purchaser for value is not bound 
 by a restrictive covenant framed to run with the land, unless he 
 has actual notice of it, or unless such precautions have been 
 taken, that if he had made proper inquiries he would necessarily 
 have had notice of it (5). A purchaser of a reversion with 
 notice of a restrictive covenant with reference to other lands, 
 affecting the lands purchased by himself, is bound in Equity 
 thereby (6). 
 
 9. An assign of a covenantor is bound in Equity if he has 
 notice of a covenant (7) ; and if parties purchase land with notice 
 of a covenant concerning it, though the covenant does not run 
 with the land so as to bind the parties at Law, yet Equity will not 
 permit them to do anything contrary to the true meaning of that 
 
 (1) Thompson v. Guyon, 5 Sim. 593 ; L. E. 9 Eq. 678 ; 39 L. J. (Ch.) 
 65. 560. 
 
 (2) Finch y. Underwood, L. E. 2 Ch. (6) Jai/ v. Richardson, 30 Beav. 
 D. 310 ; 45 L. J. (Ch.) 522 ; 24 W. E. 563. 
 
 657; 34 L. T. 779. (7) ChiU v. Douglas, 1 Kay, 560; 
 
 (3) Child V. Douglas, 1 Kay, 560, 575 ; 2 Juv. (N. S.) 350 ; et v. S. C. 
 575 ; 2 Jur. (N. S.) 350. 5 De G. M. & G. 739 ; Whatman v. 
 
 (4) Wilkinson v. Sogers, 12 W. E. Gibson, 9 Sim. 196 ; 7 L. J. (N. S.) 
 119^ Ch. 160 ; 2 Jur. 273. ' 
 
 (5) Carte^ v. Williams, 18 W. E. 
 
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90 COVENANTS. 
 
 Eaet ii. eovenant (1) ; and a covenant, though in gross at Law, being one 
 SmjtTio. ' that does not run with the land so as to be binding at Law upon 
 a purchaser from the covenantor, is nevertheless binding in Equity 
 upon an assignee with notice. And the Court will restrain a 
 breach of such a covenant, although the plaintiff has not esta- 
 blished the validity of the eovenant at Law, as binding upon the 
 assignee of the land. The question in such cases is, not whether 
 the covenant runs with the land, but whether a party shall be 
 permitted to use the land in a manner inconsistent with the con- 
 tract entered into by his vendor, and with notice of which he- 
 purchased ; and a Court of Equity will enforce an equity attached, 
 to the land by the owner, under such circumstances as will not 
 maintain an action at Law (2). 
 
 10. A clause in a conveyance of land, by, which it is agreed that 
 a piece of land adjoining that retained by the grantor and that 
 sold to the grantee, shall never be thereafter sold, but left for the 
 common benefit of the parties and their successors, does not con- 
 travene any rule of Law, but is a mere agreement to leave the 
 land open for the advantage of the two adjoining proprietorSj and 
 such a contract creates an equity between the original parties, 
 binding all who come into possession derivatively with notice of 
 it (3). 
 
 11. A covenant between a lessor and lessee, for themselves and 
 their assigns, to do any matter which concerns the lands demised, 
 falls withiu the rule laid down in Spencer's Case (4), and must, be 
 considered as a covenant that runs with the land. The respective 
 assignees of the parties, therefore, will have the benefit of, and be 
 bound by, all such covenants (5). But the interference of Equity 
 
 " (1) Patchings v. BubUns, 23 L. J. (3) McLean v. McKay, L. B. 5 
 
 (Ch.) 45; 1 Kay, 1; 17 Jur. 1113; et P. C. 327; 21 W. E. 798; 29 L. T. 
 
 vide Coohe v. Ohilcott, L. E. 3 Ch. D. (N. S.) 352 ; et vide Tulk v. Moxliay, 
 
 694 ; 34 L. T. 207. supra. 
 
 (2) Tulk V. Moxhay, 2 Ph. 774; (4) 5 Eep. 17; et vide Balhy v. 
 
 1 H. & T. 105 ; 11 Beav. 571 ; vide Wells, 3 Wils. 26, 29, 32 ; S. C. Wil- 
 
 Western v. MacDermott, L. E. 2 Ch. mot's Notes, 344, 345, 349 ; Mayw of 
 
 72; 35 L. J. (Ch.) 190; 36 L. J. Co«g'Ze<om v. Poiiisom, 10 Bast, 135. 
 
 (Ch.) 76 ; 15 W. E. 265 ; L. E. 1 Eq. (5) Vernon v. ISmith, 5 B. & A. 7, 
 
 499 ; Wilson v. Martj L. E. 1 Ch. 11 ; and see the Anonymous Case, 
 
 463 ; 2 H. & M. 551 ; 12 L. J. Ch. Moor, 159, pi. 300. 
 (N. S.) 460. 
 
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COVENANTS. 91 
 
 in such cases is discretionary, though a Court of Equity has, no Part II. 
 doubt, the power to restrain and enjoin, foi" the very purpose of s:^™io.' 
 
 preventing the necessity of resorting to an action of covenant ; 
 
 but this jurisdiction will only be exercised upon just occasions, 
 and to prevent wanton or fraudulent vexation (1). 
 
 12. If a deed contain an absolute covenant not to do an act, 
 such covenant will not, in the absence of a bill to rectify the deed, 
 be controlled by a recital in the deed from which it appears that 
 the parties intended that such act might be done on payment of 
 a fixed sum for 'liquidated damages ; and an interlocutory in- 
 junction to restrain acting against the words of the covenant will 
 be granted (2) ; but a covenant in a deed, if ambiguous, will be 
 controlled by the recitals (3). 
 
 13. If a representation is made by a party that by reason 
 of covenants he cannot, during the term of his lease, build other- 
 wise than in a -particular way, that representation he is bound to 
 make good. And though such a party, after making such repre- 
 sentation, surrender that lease and take a new one, not containing 
 the restrictive covenants in the lease surrendered, yet the right of 
 the party to whom such representation was made will not be 
 aifected by the surrender of the first lease ; and a plaintiff will on 
 that ground be entitled to an injunction to restrain such party 
 from building in contravention of such covenants. And even if 
 by reason of the surrender, such covenants are gone, the plaintiff 
 Svill be entitled to an injunction from the equity arising from 
 such parol representation of the defendant ; for what the defendant 
 in such a case says, amounts to a representation that he cannot, 
 during ^he term of the lease, build otherwise than in a particular 
 way (4). 
 
 14. A conveyance in fee to the use that certain trades shall not 
 be carried on upon the property, amounts to a covenant and is 
 binding (5). 
 
 15. A covenant for perpetual renewal, entered into by a person 
 
 (1) Wafers v. Taylor, 2 V. & B. (4) Piggott v. StraUon, 1 De G. F. 
 302 (2 Hov. Sup. to Ves. 454). & J. 33 ; 1 Job. 341 ; 6 Jur. (N. S.) 
 
 (2) Bird v. laJcB, 1 H. & M. 111. ,129. 
 
 (3) Selby v. Crystal Palace Gas Co., (5) Eodson v. Coppard, 29 Beav. 4 ; 
 30 Beav. 606. 7 Jur. (N. S.) 11. 
 
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92 
 
 COVENANTS. 
 
 Paet II. ha vine; a limited interest in lands, does not bind the estate, and 
 
 Chaptee I' 1 . . . • • 1. J 
 
 Sect. 10. therefore, if his assignee acquires the inheritance, it is not bound 
 by the covenant (1). 
 
 16. There is a distinction between an express covenant and an 
 implied agreement (with reference to removing articles on a farm 
 held by lease, contrary to the custom of the country), as regards 
 enforcing the same by an injunction, in cases of tenancies from 
 year to year, after cesser of a lease by effluxion of time; an 
 injunction will be granted where there is an express covenant in 
 the expired lease, against a tenant holding over from year to year, 
 after the expiration of his lease, to restrain him from removing 
 articles contrary to the custom of the country ; but no injunction 
 will be granted against such a tenant, against removing articles 
 contrary to the custom of the country, upon an implied agree- 
 ment (2). 
 
 17. But in cases of tenancies originally and so oontinuing from 
 year to year, a Court of Equity will restrain a tenant, as in the 
 case of a lessee for a longer term, from doing damage by cutting 
 and damaging the hedgerows, &c., and from removing the crops 
 manure, &c., contrary to the usual course of husbandry, and 
 except according to the custom of the country (3). 
 
 18. A Court of Equity will restrain a breach of farming co- 
 venants (4). And it will grant an injunction against ploughing 
 up pasture upon a covenant to manage pasture in a husbandlike 
 manner, that being equivalent to an express covenant not to 
 convert pasture to arable (5). So it wiU restrain a tenant from 
 ploughing up meadow for the purpose of building, if there is an 
 express covenant in his lease not to convert any meadow, otherwise 
 it is doubtful whether the Court will grant an injunction on the 
 ground of waste, if there be no covenant, without evidence that it 
 is an ancient meadow (6). 
 
 19. A Court of Equity will restrain a tenant holding under 
 
 (1) Brereton v. Tushey, 8 Ir. Ch. B. (5) Brury v. MoUns, 6 Ves. 328. 
 190. (6) Grey de Wilton (Lord) v. 
 
 (2) Eimpton v. Eve, 2 V. & B. Saxon, 16 Ves. 106 ; vide PuUeney v. 
 349. Shelton, 5 Ves. 147, 260, n. ; and Hot. 
 
 (3) Onslow V. • , 16 Ves. 173. Sup. to Ves. 497. 
 
 (4) Fleming v. Snook, 5 Beav. 250. 
 
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COVENANTS, 93 
 
 a sub-lease from doinff an act whereby the title of his lessor may P*"'^ ^^■ 
 
 ^ ^ ChapteeI. 
 
 be evicted (1). Sect. lo. 
 
 20. A covenant to repair, and at the end of the term to 
 surrender the buildings in good condition, will not preclude an 
 injunction against pulling them down and carrying away materials 
 just before the end of the term (2). 
 
 21. The Court will not enforce a covenant where it would be 
 necessary to try in each instance whether the act was a prejudice 
 to the covenantees. The parties will be left to make what they 
 can of such a covenant at Law (3). And it is open to much 
 argument whether, with reference to motives of public policy, 
 a Court of Equity would act upon a covenant of such a nature, 
 between the owner of a well and the proprietors of waterworks as 
 to the sale of water from the well (4). 
 
 22. A first remainderman in tail, and, as such, claiming an estate 
 by purchase, though not bound by a lease made before he became 
 entitled, but who has for several years — ^for instance six — received 
 the rent, and has lain by and suffered the rebuilding of a house, 
 and has not denied that he had notice of the lease, will be decreed 
 to make a new lease, with proper covenants for the remainder of 
 the term (5). 
 
 23. A tenant covenanting to repair (damage by fire only 
 excepted) continues liable to payment of rent notwithstanding the 
 premises are destroyed by fire ; and if he covenant to pay rent 
 during the term, it must be paid notwithstanding the premises 
 are burned down during the term (6). 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 until the 
 
 . premises are rebuilt (7). 
 
 24. A Court of Equity will grant no relief against a covenant 
 to repair in a given time,' though there is no request by the land- 
 
 (1) Mason v. Mason, Fl. & E. 429 ; (5) Stiles v. Cooper, 3 Atk. 692. 
 vide Warrant v. Lovd, 3 Atk. 723, 3rd (6) Bare v. Groves, 3 Anstr, 687 ; 
 Ed. Eoltmpfel v. Baker, 18 Ves. 115; 
 
 (2) London {Mayor of) v. Eedger, Gregg v. Ooafes, 23 Beav. 33 ; Foole v. 
 18 Ves, 355. Adams, 33 L. J. (Ch.) 639 ; Fowler v. 
 
 (3) Collins V. Plumb, 16 Ves. 454. Bott, 6 Mass. 67 (Amr.). 
 
 (4) lb. (7) Leeds v. Cheetham, 1 Sim. 146. 
 
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94 COVENANTS. 
 
 PabtU. lord, unless there be a stipulation rendering it necessary, and 
 
 Cj1tapti''ti T 
 
 Sect. 10. though the tenant has been suffered to continue in possession 
 merely, without rent, &c., and though the specified time in the 
 lease has been inserted by mistake ; and the quantwm of damage 
 is no criterion (1). A notice to quit does not absolve the tenant 
 from the performance of the covenants in his lease (2). And 
 although the parts out of repair have been rebuilt, the Court will 
 not interfere (3). But the Court will allow a reasonable time to 
 repair (4). And it will relieve against the consequences of a 
 breach of covenant to repair, where the lessee is unable, from 
 circumstances over which he has no control, to complete the 
 repairs within a specified time (5), But if a lessee is led by the 
 lessor to think that a notice given by him to the lessee to repair 
 has been suspended during negotiations — for instance, negotiatians 
 for a purchase of the premises by the lessor — it is clearly against 
 equity and good conscience that the lessor should take advantage 
 of a forfeiture, and he will be restrained from proceeding to 
 execution on a judgment in ejectment against the lessee for the 
 forfeiture (6). 
 
 25. A covenant in a lease not to let, set, or demise the premises, 
 or any part, for all or any part of the term, without consent, 
 restrains assignment (7) ; and the Court will enforce by injunction 
 a covenant in a lease not to assign without license (8) ; and such 
 covenants not to assign, underlet, or otherwise part with the 
 possession without consent in writing of the lessor, touch and 
 concern and therefore run with the land, and the lessor can sue 
 an assignee of the lessee for a breach (9). 
 
 26. The Court will grant no relief against a forfeiture by a 
 
 (1) Bracehridge v. Buckley, 2 Price, 473 ; 9 Jur. (N. S.) 1192 ; 7 L. J. 
 
 200 ; Gregory v. Wilson, 9 Hare, 689 ; (N. S.) 365. 
 
 vide Bargent v. Thompson, 4 Giff, (fi) Hughes r. The Metropolitan 
 
 475. Bailw. Co., L. E. 1 C. P. D. 121; 
 
 {2) Gregory v. Wilson, 9 Hare, 45 L. J. (0. P.) 578 ; 24 W. E. 652. 
 
 683. (7) Greenaway v. Adams, 12 Ves. 
 
 (3) Job V. Banister, 26 L. J. (Ch.) 395. 
 
 125 ; 3 Jur. (N. S.) 93 ; vide Guage v. (8) Dyke v. Tylor, 3 De G. F. & J. 
 
 Lochwood, 2 F. & F. 115, 467. 
 
 (4) lb. (9) Williams v. Earle, L. E. 3 Q. B. 
 
 (5) Bargent v. Thompson, 4 Giff. 739. 
 
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COVENANTS. 95 
 
 breach of a covenant not to assign without license (1) ; but it Pabt ll. 
 would appear that equitable agreements giving charges upon the seot. lO. 
 ■property comprised in a lease, not accompanied with a change 
 of the possession, or other alteration in the, property, will not, in 
 Equity, work a forfeiture of a lease, notwithstanding there is a 
 clause in the lease against assignments, if the acts which are 
 relied upon as having worked a forfeiture can be got over by 
 the plaintiff (2). An assignment by operation of law is no 
 breach of a condition not to assign, ex gr., if the lessee become 
 , bankrupt, or the lease be taken in execution, unless such an 
 event be brought about by the fraudulent procurement of the 
 lessee himself (3). But the lessor may, by the insertion of 
 express, clear, and distinct words, render even such an assignment 
 a fine or forfeiture (4). Upon a^coyehant _not to assign or under- 
 let without the consent of the lessor, but with a proviso that such 
 consent is not to be withheld without some reasonable objection, 
 the Court wiU not restrain the lessee from underletting, where 
 there is no reasonable ground for withholding consent (5), 
 
 27. Belief in Equity against forfeiture is only given where the 
 breach of a covenant has been the omission of a simple money 
 payment, such as rent (6), unless under special circumstances, as 
 where the covenantor has been misled, and he has been mistaken 
 as to the consequences of his breach of the covenant (7) ; nor will 
 relief be given against the breach of a covenant for payment 
 of rent, if breaches of other covenants have been committed, for 
 which the plaintiff might have been ejected (8). 
 
 (1) Hill V. Barclay, 18 Ves. 63 ; v. Hawhes, 2 Bast, 481 ; Doe v. Clarke, 
 Wafer v. Mocatto, 9 Mod. 112 ; Lovat 8 East, 185 ; Doe v. David, 5 Tyrw. 
 V. Lord Banelagh, 3 V. & B. 24 ; vide 125 ; Cooper v. Wyatf, 5 Madd. 482 ; 
 Burke r. Prior, 15 Ir. Ch. Bep. 106. Tarnold v. Moorhouse, 1 Euss. & My. 
 
 (2) Bowser v. Colby, 1 Hare, 138; 364; B. v. BoUnson, Wigh. 386. 
 Weatherall v. Geering, 12 Ves. 509 ; (5) Sheppard v. Hongkong and 
 
 ' Oourley v. Duhe of Somerset, 1 V. & B. Slianghae Banking Corporation, 20 
 
 68 ; Croft v. Lumley, 6 H. L. 0. 672. W. R. 459. 
 
 ' (3) Philpot V. Eoare, 2 Atk. 219 ; (6) Keating v. Sparrow, 1 Ball. & B. 
 
 Doe V. Deavan, 3 M. & S. 353 ; Doe 367, 373 ; Joh v. Banister, 2 K. & J. 
 
 V. Catter, 8 T. E. 300 ; vide Doe v. 382 ; Bowser v. Colby, 1 Hare, 109, 
 
 Eawkes, 2 East, 481. 133, 134. 
 
 (4) Doe d. Wyndham v. Carew, 2 (7) Shear7tumv.Macgregor,llHii,ve, 
 
 Q. B. 317 ; Roe v. OalUers, 2 T. E. 133 ; 106. 
 
 Davis V. Eyton, 7 Bing. 154 ; see Doe (8) Bowser v. Oolhy, supra, 134. 
 
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96 COVENANTS. 
 
 Pabt II. 28. Prior to the 22 & 23 Vict. c. 35, a Court of Equity would 
 
 ChAPTEE I. n c • J. 1 1 J) 
 
 Sect. 10. grant no relief by injunction against a forfeiture tor breaen oi a 
 covenant to insure and to keep insured (1), or to pay the pre- 
 miums and keep up a policy of insurance (2) ; and insurance after 
 the breach had been committed had no effect in curing the 
 breach (3). But the Court has now been empowered by that 
 Act (ss, 4 — 9) to give relief against the breach oC a covenant or 
 condition to insure against loss or damage by fire, where no loss 
 by fire has happened, and the breach has been committed through 
 accident, mistake, or otherwise, without fraud or gross negligence, 
 and there is an insurance on foot at the time of the application 
 to the Court, in conformity with the covenant to insure ; but the 
 Court cannot relieve more than once in respect of the same 
 covenant or condition ; nor can relief be given where a forfeiture 
 under the covenant has been already waived out of Court in 
 favour of the person seeking the relief, EeKef may be given 
 for breaches of covenant committed after the passing of the Act, 
 in leases granted before the statute (4). 
 
 29. However, Equity will relieve against forfeiture, if the 
 covenant to insure has been performed substantially, though it 
 may not have been literally performed. 
 
 30. 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 
 names of the lessor and the lessee, because the arrangement is 
 not so beneficial to the landlord as the arrangement for which he 
 had stipulated (5). But in Equity, relief will be given against 
 forfeiture where the manner in which the insurance has been 
 effected is not so beneficial to the lessor as that for which he had 
 
 (1) Oreen v. Bridges, i Sim. 96; (3) Iteynolds v. Pitt, 19 Ves. 140; 
 
 White V. Warner, 2 Mer. 459 ; Bolfe v. Oreen v. Bridges, 4 Sim. 
 
 Harris, 2 Price, 207, n. ; EeynoWs v. v. Turner, 13 Sim. 477 ; Gregory v. 
 
 Pitt, 19 Ves. 140; Mliott v. Turner, Wilson, 9 Hare, 689; NoJcesy. Giblon, 
 
 13 Sim. 477 ; Gregory v. Wilson, 9 3 Drew. 681 ; Meek v. Carter, 4 Jur. 
 
 Hare, 683 ; Shearman v. Macgregor, 11 (N. S.) 992. 
 
 Hare, 106 ; Nokes v. Giblon, 3 Drew. (4) Page v. Bennett, 2 Giff. 117 ; 6 
 
 681 ; Meek v. Carter, 4 Jur. (N. S.) Jur. (N. S.) 419. 
 
 992. (5) Penniall v. Earlorne, 11 Q. B. 
 
 (2) Winthrop v. Murray, 8 Hare, 369; seefiavems v. MwWfetore, lOHare, 
 
 214. 641. 
 
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Covenants. 79 
 
 stipulated, if the covenant has been on the whole substantially PaktII. 
 
 T J vi. /I \ Chapter I. 
 
 complied with (1). Sect. 10. 
 
 31. Where a breach of covenant is threatened, and has been 
 partly executed, a Court of Equity having jurisdiction to restrain 
 the breach, will, under statutory powers (2), also award damages 
 in respect of the executed breach (3). If a breach of covenant is 
 proposed, the Court will not refuse to interfere on the ground that 
 there has been a mistake on the part of both parties in the form 
 of the covenants, or that the aggrieved party may have already 
 permitted some other infringement of the covenant, or on the 
 ground of inconvenience to the public (4). The circumstance that 
 a work undertaken in breach of a valid covenant is one of great 
 public importance, is not sufficient to induce a Court of Equity to 
 refuse to restrain the breach of covenant (5). And before the 
 Court will refuse to enforce a covenant, it must be clear that no 
 substantial damage can arise from the breach of it (6). And when 
 the Court refuses to enforce a covenant because the damage 
 would be inappreciaBle, the case must be perfectly clear (7). 
 
 32. Upon a covenant not to build or allow trees to grow above 
 a certain height, the object of which is to prevent obstruction of 
 the view from certain houses, substantial injury is not requisite in 
 order to enable the Court to interfere and restrain a breach of the 
 covenant. And a person entitled to complain of such breach of 
 covenant has not waived his right by a passive acquiescence in 
 other breaches. Acquiescence in a breach of covenant not at- 
 tended with substantial damage will not bar the right to restrain 
 a subsequent breach so attended. And an injunction will be 
 granted at the suit of the owner of one of such houses, in respect 
 of which the different owners have severally entered into such a 
 covenant with the grantor of the whole of them, restraining a 
 breach of the covenants by the owner of another house, notwith- 
 
 (1> Rogers v. Tvdor, 6 Jur. (N. S.) Dover Railw. Co., 34 L. J. (Ch.) 401 ; 
 692. 13 W. B. 698 ; 12 L. T. (N. S.) 362. 
 
 (2) Vide Sir Hugh Cairns' Act, 21 (5) lb. 
 
 & 22 "Vict. 0. 27 ; the Supreme Court (6) Lloyd v. London, Chatham, and 
 
 of Judicature Acts, 1873 and 1875 (36 Dover Railw. Co., 34 L. J. (Ch.) 401 ; 
 
 & 37 Vict. c. 66, 38 & 39 Vict. c. 77). 13 W. E. 698 ; 12 L. T. (N. S.) 362.; 
 
 (3) Sindley v. Mnefy, 11 Jur. 11 Jur. (N . S.) 380 ; 2 De Q. J. & S. 568. 
 (N. S.) 874. (7) lb. 
 
 (4) Lloyd V. London, Chatham and 
 
 H 
 
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98 COVENANTS. 
 
 Part II. standing that small breaches of the covenants by other owners 
 Kect. 10. may Dot have been interfered with, and that he himself may 
 have committed a small breach. And a purchaser, with notice 
 of the covenants, is bound by them in Equity (1). But if a vendor 
 to several purchasers, has permitted, without interference, material 
 breaches of a covenant taken from them severally, to be com- 
 mitted by some of the purchasers, he cannot obtain an injunction 
 to compel another of the purchasers to observe the same cove- 
 nant ; and there is no difference in the case where the covenant 
 is not only a covenant by each purchaser with the vendor, but 
 also a covenant by each purchaser with all the others ; nor in the 
 case where the breaches have been committed before the defendant 
 became a purchaser and executed the deed of covenant (2). 
 
 83. A restrictive covenant in an assignment of a lease, will be 
 enforced by the Court, on behalf of the covenantee, against persona 
 with constructive notice, though the covenantee has no rever- 
 sion (3). A Court of Equity will enforce the performance of a 
 covenant, where a party is fixed with constlructive notice of the 
 covenant, and a lessee is bound to inquire into, and is fixed with 
 notice of, all the covenants which his lessor has entered into, in 
 respect of the land (4). 
 
 34. A tenant from year to year, without express notice of a 
 covenant, is bound by it, if he have constructive notice, and the 
 rule that a purchaser who does not inquire into his vendor's 
 title is affected with notice of what appears upon it, applies 
 equally to a yearly tenant, as to the purchaser of a greater 
 interest (5). 
 
 85. If there be a breach of an implied covenant on the part of a 
 lessor in respect of something which is essential to the enjoyment 
 of the property by the lessee, and which is the basis of the agree- 
 ment, the Court will, as far as possible, replace the parties in their 
 original positions, and restrain proceedings on the express 
 
 (1) Western v. Macdermott, L. E. 2 (4) Fielden v. Slater, L. E. 7 Eq. 
 Ch. 72 ; 35 L. J. (Ch.) 190 ; 36 L. J. 523 ; 38 L. J. (Ch.) 379 ; 17 W. B. 
 (Ch.) 76 ; 15 W. B. 265 ; L. E. 1 Eq.499. 485 ; 20 L. T. (N. S.) 112. 
 
 (2) Peek v. Matthews, L. E. 3 Eq. (5) Wilson v. Hart, L. E. 1 Ch. 
 515. . 463 ; 2 H. & M. 551 ; 12 L. J. (Cli.) 
 
 (3) Chments v. Welles, L. R. 1 Eq. (N. S.) 460. 
 200 ; 35 L. J. (Cb.) 265, 
 
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NUISANCE. 99 
 
 covenants (1). So if one party to a contract in respect of PabtII. 
 personal property and service break'au implied covenant which is Sect. 10. 
 important, in the contract, he will not be entitled to restrain the " 
 other party to the contract from breaking any other part of the 
 agreement (2). 
 
 36. A Court of Equity has jurisdiction by injunction to restrain 
 further breaches of a covenant, where the covenantee has been 
 compelled repeatedly to resort to Law to such an extent as to 
 become vexatious (3). 
 
 37. Though where a contract contains an express negative 
 covenant, and complete justice can be done between the parties, 
 a Court of Equity will grant an injunction to restraii£a breach of 
 the negative covenant ; yet the Court rarely interferes where there 
 is no distinct negative stipulation, but^the negative obligation is 
 inferred only from the positive contract (4). But the Court wiU 
 not grant an^interlocutory injunction to compel the performance 
 of a negative clause in an agreement unless the negative clause 
 is clear, or irreparable injury would^ be"* likely to result to the 
 plaintiff from refusing the injunction (5). The Court will restrain 
 a defendant from acting contrary to a negative agreement, although 
 it cannot specifically enforce the performance of the whole of the 
 agreement (6). 
 
 Sect. 11. Nuisance. 
 
 1. The general principle on which a Court of Equity interferes 
 in cases of nuisance is the inadequacy of the remedy wliich the 
 Common Law gives in such cases. The jurisdiction of a Court 
 of Equity rests on the ground of injury to property ; and taking it 
 
 (1) Acraman v. Price, Davies v. Turibridge Wells Bailw. Co., 1 H. & 
 Price, 18 W. E. 540; 19 W. E. 364; M. 468 ; 32 L. J. (Oh.) 677. 
 
 24 L. T. (N. S.) 487. (5) Mapleson v. Bentham, 19 W. B. 
 
 (2) Telegraph Despatch and In- 176, 177. 
 
 ielligence Co. v. McLean, L. E. 8 Ch. (6) Oreat Northern Bailw. Co. v. 
 
 658. Manchester, Sheffield and Lincolnshire 
 
 (3) WatersY. Taylor,2Y. &B.S02; iJaiZw.Co., 5 DeGex&Sm.l38; 16 Jur. 
 2 Hov. Sup. to Ves. 454. 146 ; et vide Lumley v. Wagner, 5 De 
 
 (4) Peto V. Brighton, Uckfield, and Gex & Sm. 485 ; 1 De G. M. & G. 604. 
 
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100 
 
 NUISANCE. 
 
 Pabt n. to rest upon that ground, the only distinction which seems to exist 
 Sect. 11. between cases of pubh'c nuisance and private nuisance is this, that in 
 cases of private nuisance the injury is to individual property, and 
 in cases of public nuisance the injury is to the property of man- 
 kind (1). Nuisances against which Courts of Equity grant injunc- 
 tions must be such as are a material injury to property, or to the com- 
 fort of the existence of those who dwell in the neighbourhood (2), 
 
 2. In determining whether relief ought to be granted against 
 a permanent and serious nuisance, regard will be had not only to 
 the comfort and convenience of the occupier of the land for the 
 time being, but to the prospective effect of the nuisance in 
 diminishing the value of the land, and with the prospect of advan- 
 tageously dealing with it (3). With respect to the considerations 
 of comfort and convenience, the material question, in all cases of 
 nuisance involving those considerations, is, whether the annoyance 
 produced^is such as materially to interfere with the ordinary 
 comfort of human existence (4). 
 
 3. A Court of Equity restrains such nuisances only as are 
 nuisances at Law ; the fears of mankind, though reasonable, will 
 not create a nuisance (5). In cases of nuisance the mere appre- 
 hension of damage is not sufficient to entitle a party to an injunc- 
 tion, actual damage must be established (6). The Court will not 
 interfere quia timet in a case of merely prospective injury and 
 alleged nuisance, the actual existence of the nuisance must be 
 proved (7). The Court will not restrain a merely contingent 
 nuisance (8) ; or where it is uncertain whether or not mischief 
 will happen (9). Although a prospective nuisance is not in itself 
 a ground for the interference of the Court, yet if some degree of 
 
 (1) Att.-Qen. v. Sheffield Oas Con- (4) Crump v. Lamhert, L. K. 3 Eq. 
 sumers Co., 3 De G. M. & G. 304, 409 ; 17 L. T. (N. S.) 133. 
 
 319; Att.-Qen. v. Nichol, 16 Ves. (S) Baines-<r. Baher, Kvah.\Z%. 
 
 388. (6) Brown v. Gugy, 2 Moo. P. C. C. 
 
 (2) Luscombe v. Steer, 17 L. T. (N. S.) 341. 
 
 (N. S.) 229; 15 W. E. 1191. (7) Att.-Gen. v. Kingston -upon - 
 
 (3) Goldsmid v. Tunlridge Wells Thames (Mayor, &c.) 11 Jur. (N. S.) 
 Improvement Commissioners, L. R. 1 596. 
 
 Eq. 161 ; L. R. 1 Oh. 349 ; 12 Jur. (8) Eaines v. Taylor, 2 Ph. 209,; 10 
 
 (N. S.) 308 ; 14 W. R. 92, 562 ; vide Beav. 75. 
 
 Att.-Oen. and Dommes v. Mayor, &c., (9) Ripon (Earl of) v. Hdbart, 3 
 
 <jf Basingstoke, 24 W. K. 817. Myl. & K. IG'J ; Coop. t. Brougham, 333. 
 
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NUISANCE. 101 
 
 present nuisance exist, the Court will take into account its probable Part II. 
 continuance and increase, and restrain the nuisnnce before it has gBcrr. ii. 
 become permanent and continuous (1). But if there is a proba- 
 bility of immediate prospective nuisance, a Court of Equity will 
 interfere and grant an injunction (2). And the Court will 
 restrain threatened alterations, and alterations begun which it is 
 satisfied will prevent the comfortable enjoyment of a plaintiff's 
 premises (3). 
 
 4. If certain individuals suffer an injury or special damage 
 from a public nuisance quite distinct from that done to the public 
 at large, the Court will entertain a bill filed by those individuals 
 to be relieved from the nuisance (4). And they may sustain the 
 bill without making the Attorney-General a party (5). 
 
 5. There is no doubt that a Court of Equity, when it is satisfied 
 of the existence of a nuisance which it has the power to abate or 
 redress, whether public or private, will not hesitate to exercise its 
 jurisdiction and authority (6). The Court has this jurisdiction by 
 injunction on danger of irreparable injury to property, though as 
 a public nuisance it is an object of prosecution by the Attorney- 
 General (7). 
 
 6. Equity will restrain a threatened act, punishable as a public 
 nuisance, which also would cause special damage to the plaintiff 
 himself (8). As, for instance, where there is extraordinary injury 
 to his property, irreparable in damages, or without a multitude of 
 actions (9). The Court will not, except in extreme cases, interfere 
 by injunction to prevent nuisances if temporary and occasional 
 only (10). If there is good ground for concluding that a present 
 nuisance is temporary, an interim injunction will not be 
 
 (1) GoUsmid v. Tunhridge Wells (6) Boshell v. Whitworth, 19 W. E. 
 Improvement Commissioners, L. R. 1 804. 
 
 Eq. 161; L. B. 1 Oh. 349; 12 Jur. (7) Crowder^. Tinkler, l^Nes.Qll, 
 
 (N. S.) 308 ; 14 W. E. 92, 562. (8) Walker v. Shephardson, 2 His. 
 
 (2) Att.-Oen. v. Kingston - upon - 384 ; Mississippi &c., v. Ward, 2 Black. 
 2'Aawies(j¥a2/or<6c.)llJur.(N.S.)596. 485; Zabriskie v. Jersey, &c., 2 Beasl. 
 
 (3) Palmer v. Paul, 2 L. J. (Oh.) 314 (Amr.). 
 
 154. (9) Parrish v. Stephens, 1 Oreg. 73 
 
 (4) Spencerv. London and Birming- (Amr.). 
 
 ham Sailw. Go., 8 Sim. 193 ; Sampson (10) Swaine v. Great Northern 
 
 V. Smith, 8 Sim. 272, Eailw. Co., 10 Jur. (N. S.) 191 ; 4 
 
 (5) Sampson v. Smith, 8 Sim. 272. De G. 3. & S. 211. 
 
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102 NDISANCE. 
 
 Part II. granted (1), Nor if the evidence as to nuisance is altogether 
 Sect. 11. ' conilicting, and an inspection of the works alleged to cause the 
 nuisance is impracticable, will an interlocutory injunction be 
 granted (2). Except in a case of irreparable damage, or of sub- 
 stantial damage, or perhaps of continuous damage, a Court of 
 Equity will not interfere by injunction unless the acts complained 
 of are done under a claim of right (3). Where a manufactory is 
 lawful in itself, but requires the greatest caution to prevent the 
 escape therefrom of injurious gases, the Court will not restrain a 
 defendant from carrying on his manufactory because occasionally, 
 through the occurrence of accidents in the manufactory, the 
 plaintiff is injured, and the Court will only interfere where the 
 injury is grave or frequent. A Court of Equity has power to 
 interpose in behalf of one who is injured by a ^continuing, 
 permanent, or recurring private nuisance, unless the injury may be 
 compensated in damages (4). So Equity will entertain jurisdiction 
 when a nuisance is likely to occasion a special injury to one 
 individual, which cannot be compensated in damages (5). 
 Though the actual resulting damage may be small, the Court will 
 interfere in cases which threaten danger to tlie stability of 
 permanent structures (6). But where a nuisance or damage is 
 trivial, the Court will not grant an injunction (7). But although 
 it is not enough to shew a nuisance to constitute a case for an 
 injunction, yet if it be a continuing nuisance, an injunction will 
 not be refused because the actual damage arising from it is 
 slight (8). 
 
 7. A nuisance by noise (supposing malice to be out of the 
 question) is emphatically a question of degree ; it ought beyond 
 
 (1) Cleevev.Mahaney, 9 W.E.882. (7) Ait.- Gen. v. Sheffield Gas Cm- 
 
 (2) M" Curdy v. Noah, 17 L. J. sumers Co., 3 De G. M. & G. 304; 16 
 (N. S.) Ch. 165. Jur. 677 ; 22 L. J. (Oh.) 811 ; Att.- 
 
 (3) Martin v. Douglas, 16 W. R. Gen. v. Cambridge Gas Consumers Co., 
 268, Ir. B. . L. R. 4 Ch. 71; 38 L. J. (Ch.) 94; 
 
 (4) Norris v. Bill, 1 Man. 202; 17 W. E. 145; 19 L. T. (N. S.) 
 Clack V. White, 2 Sw. 540 ; 1 Gill & 508. 
 
 J. 184 (Amr.). (8) Gaunt v. Fynney, L. B. 8 Ch. 
 
 (5) Milhauv. Sharp, 28 Barb. 228 8, 12, 14; 21 W. H. 129; 27 L. T. 
 (Amr.). (N.S.) 569; 26 L. T. (N. S.) 308; 
 
 (6) Bent v. Auction Mart Co., 35 42 L. J. (Ch.) 122 
 
 L. J. (N. S.) Ch. 555. j^-- --«, 
 
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NUISANCE. 103 
 
 question to be such as would be regarded as exceptional and un- Part II. 
 reasonable (1). It is not every occasional or accidental noise that se™!!.' 
 
 will entitle a plaintiff to an injunction, if a general case of 
 
 habitual nuisance is not satisfactorily proved (2). 
 
 8. Equity will restrain the commission of an act injurious to an 
 individual, or which may be prejudicial as a public nuisance, 
 pending judicial proceedings before tribunals by which the 
 authority to do the act or its lawfulness is to be determined (3). 
 
 9. Where a Court of Equity finds any real apprehension 
 of serious and immediate injury to health, or of any pressing 
 character of the like nature (such as the cases of stench or of 
 apprehended inundation), it will interfere to prevent such, irre- 
 parable injury, pending a decision at Law of the question of 
 nuisance or no nuisance (4). But if the evidence is satisfactory, 
 the Court will grant an injunction against a nuisance without 
 having the question, whether there is a nuisance, tried before a 
 jury (5). Wherever substantial damages in respect of a nuisance 
 might be recovered at Law, a Court of Equity will restrain its 
 continuance (6). 
 
 10. A party's right to have his property protected from injury, 
 cannot be affected by the fact that in his manufactory he uses 
 a process of great delicacy (7). 
 
 11. Though the small extent of a plaintiff's interest will not 
 necessarily disentitle him to relief from a nuisance, yet it is a 
 material ingredient for consideration (8), especially when the 
 balance of inconvenience on the one side and the other has to be 
 examined ; a consideration of which the Court never loses sight 
 in injunction cases (9). 
 
 12. If a party lie by, and allow expenditure to be incurred, and 
 
 (1) Gaunt V. Fynney, L. E. 8 Oh. (5) Inchhald v. BoUnson, Inclibald 
 8, 12, 14 ; 21 W. E. 129 ; 27 L. T. v. Barrincjton, L. R. 4 Ch. 388 ; 17 
 (N. S.) 569 ; 26 L. T. (N. S.) 308; W. E. 459 ; 20 L. T. (N. S.) 259. 
 
 42 L. J. (Ch.) 122. (6) Crump v. Lambert, L. R. 3 Eq. 
 
 (2) lb ; Cbohe v. Forles, L. E, 5 409 ; 17 L. 'J'. (N. S.) 133. 
 
 Eq. 166. (7) Cooke v. Forles, 37 L. J. (Ch.) 
 
 (3) Williamson v. Carnaii, 1 Gill & 178 ; 17 L. T. (N. S.) 371. 
 
 J. 184 (Amr.). (8) Jacomh v. Knight, 32 L. J. (Ch.) 
 
 (4) Maden v. Firth, 1 H. & M. 573 ; 601, 604 ; 9 Jur. (N. S.) 529. 
 vide Swaine v. Oreat Northern Sailw. (9) Jacomb v. Knight, supra. 
 Co., 33 L. J. (Ch.) 399. 
 
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104 NUISANCE. 
 
 Part II. a trade which might be a nuisance in point of Law, to be esta- 
 ^SeotTi.^' Wished and carried on for a considerable period, Avithout asking 
 
 for the interference of a Court of Equity, or bringing an action, 
 
 he will be precluded by acquiescence from obtaining relief in 
 Equity, though the trade has been gradually increasing (1). 
 
 13. To have a work erected at great expense, whether private 
 or public, removed by a Court of Equity as a nuisance, the person 
 complaining should have given notice not to proceed, otherwise the 
 Court will leave the complainant to Law (2). And a party may so 
 encourage another in the erection of a nuisance, as to give him 
 an equity for an injunction to restrain an action for damages (3). 
 
 14. Though there may be cases where the public might lose 
 their right to an injunction by laches (4), this does not apply to 
 a case of a gradually growing nuisance (5). Yet time is an 
 ingredient which is to be considered in determining a question 
 of injunction, although the application be on behalf of the 
 Attorney-G-eneral ; and laches may be a defence to an application 
 for an injunction by way of information, as well as by a bill (6). 
 But a delay which would be important on an interlocutory 
 application for an injunction, will be no bar to relief by injunction 
 at the final hearing of the cause (7). 
 
 15. The Court considers it a very strong course to stop the 
 carrying on a trade or manufactory by interlocutory injunction (8). 
 Where an injunction — in substance mandatory — is asked to 
 restrain a nuisance caused by smoke and deleterious vapours 
 arising from great commercial works — as collieries, for instance — 
 carried on in the usual manner, the plaintiff must shew substantial 
 and sensible damage, and such as would be visible to ordinary 
 persons conversant with the subject matter ; it must also be 
 actual, and not contingent, prospective, or remote ; but if it be 
 substantial it does not matter how that fact is made out, whether 
 
 (1) Swaine\.Oreat Northern Eailw. (5) Att.-Gen. v. Bradford Naviga- 
 Co., 9 Jur. (N. S.) 1196. Uon Co., 35 L. J. (Ch.) 619. 
 
 (2) Jones v. Boyal Canal Co., 2 (6) Att.-Oen. v. Sheffield Qas Con- 
 Moll 319. sumers Co., 3 De G. M. & G. 304. 
 
 (3) Williams v. Earl of Jersey, Or. (7) Turner v. Mirfield, 34 BeaT. 
 & P. 91. 390. 
 
 (4) Att.-Qen. v. Johnson, 2 WUs. (8) Att.-Gen. v. Charles, 11 W. K. 
 87. 253. 
 
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NUISANCE. 105 
 
 by the sense of sight or feeKng, or by the eye of a scientific pabtII. 
 person, or by the eye of anybody else (1). 8eot™i." 
 
 16. A Court of Equity has power to interfere with a public 
 body in the exercise of powers conferred by Act of Parliament, 
 where such bodies exercise their powers otherwise than lond 
 fide (2). But if there is a 'bona fide exercise of their powers, and 
 it is not certain or probable that the works intended will be or 
 create a nuisance, or it is not certain or probable that such bodies 
 are exceeding their Parliamentary powers, the Court will not 
 grant an interlocutory injunction (3). 
 
 17. Although the motives with which a suit is instituted are not 
 generally to be regarded, they are not wholly immaterial when 
 the complaint is of an alleged public injury or nuisance ; and the 
 views of the majority of the inhabitants of a town, and of their 
 governing body, are not immaterial or without weight on such 
 questions (4). 
 
 18. Where a party in the exercise of private rights over his 
 own property, on a portion of his own land, does acts which inter- 
 fere with his neighbour's right to the enjoyment of pure air, and 
 causes injury to' the neighbour's property, and there are other 
 situations on his land where he might do the same acts with 
 equal, or nearly equal, benefit to himself, and without any or 
 with considerably less inconvenience to his neighbour, the Court 
 will interfere by injunction, and will refuse to direct an action 
 to try the question of whether the acts complained of amount 
 to a nuisance or not (5). 
 
 19. A party is entitled to an injunction to restrain the pol- 
 lution of the water of a river passing by his property, though 
 it be done by direction of a local board of health (6). The owner 
 
 (1) Salvinv. North jBrancepeth Coai (4) Att.-Gen. v. Sheffield Oas Oon- 
 Co., L. R. 9 Oh. 705, 706, 709, 713 ; sumers Co., 3 De G-. M. & G. 304 ; 
 2a W. E. 904; 31 L. T. (N.S.) 154; Att.-Gen. v. Cambridge Gas Oon- 
 44 L. J. (Ch.) 149. sumers Co., L. B. 4 Ch, 71 ; 38 L. J. 
 
 (2) Biddulph v. St. George's, Han- (N. S.) 94 ; 17 W. B. 145 ; 19 L. T. 
 over Square, ( Vestry of), 3 De G. J. & (N. S.) 508. 
 
 S.493; 9 Jur. 434, 953; 11 W. B. (5) Beardmore v. Tredwell, 3 Giff. 
 
 524, 739 ; 8 L. T. (N. S.) 44, 558 ; 33 683 ; 9 Jur. (N. S.) 272 ; 7 L. T. (N. S.) 
 
 L. J. (Cb.) 411. 207 ; 31 L. J. (N. S.) Ch. 892. 
 
 (3) Biddulph v. St. George's Man- (6) Bidder v. Croydon Local Board 
 over Square ( Vestry of), supra. of Health, 6 L. T. (N. S.) 778. 
 
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106 NUISANCE 
 
 Part II. of land on the banks of a river can, in the'absence of any express 
 ^S^o™!!!' reservation by the party offending, of the right of fouling, restrain 
 
 the fouling of the water of the river, without shewing that the 
 
 fouling is actually injurious to himself (1). Where a prescriptive 
 right to foul a stream has been acquired, the fouling must not be 
 considerably enlarged to the prejudice of other people (2). 
 
 20. Where a plaintiff has proved his right to an injunction 
 against a nuisance or other injury, it is no part of the duty of the 
 Court to inquire in what way the defendant can best remove it, 
 and the plaintiff is entitled to an injunction at once, unless the 
 removal of the injury is physically impossible ; "and it is the duty 
 of the defendant to find his own way out of the difficulty, what- 
 ever inconvenience or expense it may put him to (3). 
 
 21. A Court of Equity will not restrain acts which are alleged 
 to be a public nuisance, and also injurious to the private rights of 
 a private person, until the question of nuisance and injury has 
 been first determined at Law (4), where, under the circumstances, 
 a jury would be the best tribunal for the trial, both of the public 
 and private nuisance ; for the question, what is a nuisance, is one 
 peculiarly fitted for the investigation of a jury ; " and in an ordi- 
 nary case, where the issue of a suit in Equity depends upon a legal 
 right, that right must be ascertained in an action before any relief 
 can be granted by a Court of Equity (5), unless it be clearly proved, 
 that the plaintiff has sustained such substantial injury as would 
 have entitled him to a verdict for damages in an action at Law (6). 
 
 22. If a nuisance is irremediable, and not capable of compen- 
 sation, the Court can impose terms, pending the trial of the 
 question of nuisance, to protect the property in its existing 
 state (7). 
 
 23. Pending proceedings to try a right, for instance, the right 
 
 (1) OrossUy v. lAghtowhr, L. E. 2 (5) Att.-Oen. v. United Kingdom 
 Ch. 478 ; 36 L. J. (N. S.) Ch. 584. Electric Telegraph Co., 31 L. J. (Ch.) 
 
 (2) lb. 329; 30 Beav. 287; 5 L. T. (N. S.) 
 
 (3) Att.-Oen. v. Oolney Hatch Lu- 338 ; White v. Cohen, 1 Drew. 812. 
 natic Asylum, L. B. 4 Oh. 146 ; 38 (6) Elmhirst v. Spencer, 2 Mac. & 
 L. J. (Ch.) 265; 17 W. E. 240; 19 a. 45. 
 
 L. T. (N. S.) 708. (7) PFAtKe v. CoAera, 1 Drew. 312. 
 
 (4) Att.-Oen. v; Cleaver, 18 Ves. 
 211, 220. 
 
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NUISANCE. 107 
 
 of a plaintiff to the use of water, as he claims it, by a watercourse, Part II. 
 the Court will restrain a defendant from obstructing such water- gjjoT. il. 
 course (1). If an injunction is applied for in respect of a violati-on 
 of a Common Law right, and the existence of that right, or the 
 fact of its violation, is denied, the plaintiff is obliged to establish 
 or prove his right at Law before he is entitled to an injunction ; 
 the ordinary rule is not to grant an injunction to restrain a nui- 
 sance until the existence of the nuisance has been established at 
 Law (2), but having done that, he is, except under special cir- 
 cumstances, entitled to an injunction to prevent a recurrence of 
 that violation, and if pending proceedings at Law, to ascertain the 
 existence of a right, or the fact of its violation, an alteration in 
 the mode of carrying on the business is complained of, in increase 
 of the cause of injury, that need not be the subject of a fresh pro- 
 ceeding at Law ; that is matter for the discretion of the Court of 
 Equity (3). But an injunction will be granted before a trial at 
 Law for the decision of the legal right, to restrain a nuisance, 
 upon evidence of ill consequences suffered by some of tlie plaintiffs 
 and their families from the noxious effects of the nuisance (4). 
 Where the inconvenience to the public will be none, or very 
 small, the Court will not grant an injunction to restrain a nui- 
 sance, for instance, the diminishing the width of a road (5). If 
 the injury by a nuisance to a trade is accidental and occa- 
 sional only, and careful precautions are taken to prevent the 
 nuisance, and there is no exceptional risk, a Court of Equity 
 will not restrain the nuisance (6). But it is no answer to a com- 
 plaint by a manufacturer, of a nuisance to his trade, to say that 
 the injury is felt only by reason of the delicate nature of the 
 manufacture (7). A nuisance cannot be justified by the ex- 
 istence of other nuisances of a similar character, if it can be 
 
 (1) Dewhurst v. Wrigley, Coop. C. P. v. Broadbent ; Broadbent v. Imperial 
 319. ■ Gaslight and Ooke Go., supra. 
 
 (2) Imperial Gaslight and Coke Co. (4) Pollock v. Lester, H Hare, 266. 
 V. Broadbent, 7 H. L. C. 600; 7 De (5) Wandsworth Board of Works y. 
 Or. M. & G..436; 5 Jur. (N. S.) 1319 ; London and South Western Railw. Co., 
 Broadbent v. Imperial Gaslight and 31 L. J. (Ch.) 854 ; 8 Jur. (N. S.) 691. 
 Coke Co., 3 L. J, (N. S.) 221 ; 2 L. J. (6) Cooke v. Forbes, L. R. 5 Eq. 166. 
 (N. S.) 1132. (7) lb. 
 
 (3) Imperial Gaslight and Coke Co. 
 
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108 NUISANCE. 
 
 Paet II. shewn that the inconvenience is increased by the nuisance com- 
 Ghapter I . , . 
 
 Sect. 11. plained of (1). Where there is no suspicion ot rivalry in trade 
 
 being the motive, the Court shews a disposition less carefully to 
 balance the comparative inconvenience caused to the contending 
 parties by granting or withholding an injunction, and to consider 
 more the absolute wrongdoing (2). Motives of public policy are 
 not allowed to be brought forward by a wrongdoer to maintain 
 him in his wrong (3). Where a nuisance causes substantial and 
 permanent damage to an individual, the Court will not refuse an 
 injunction, even though the act causing the nuisance may, in its 
 results, be beneficial to the public (4). But if a plaintiff, in such 
 cases, sustain a merely trifling or no material injury, the Court 
 will not grant an injunction (5). Though important public in- 
 terests may be involved, such as the improvement of the drainage 
 of a town, the Court will protect the private rights of an indi- 
 vidual if affected in any material degree, but it will, at the same 
 time, have regard to the nature and extent of the alleged injury or 
 nuisance, and to the balance of inconvenience (6). Though an oc- 
 cupier of lands acquiesce in the erection of works on adjoining 
 land, which appear not to be, and are not, in fact, injurious, there 
 is no implied acquiescence in the natural extension of those works 
 in the ordinary course of operations ; acquiescence in the erection 
 of noxious works while they produce little injury, does not warrant 
 the subsequent extension of those works to an extent productive 
 of great damage (7). Delay in applying for an injunction to re- 
 strain the commission of a nuisance, disentitles a party to relief, 
 and the fact of no serious damage being done in the interval be- 
 tween the commencement of the nuisance and the application, will 
 not excuse the delay (8). 
 
 (1) Grossley v. Lightowler, L. E. 2 (5) LillywhUe v. Trimmer, 36 L. J. 
 Ch. 478 ; 36 L. J. (Ch.) 584. (Ch.) 525 ; Att.-Gen. v. Oee, L. K. 
 
 (2) Imperial Gaslight and Coke Co. 10 Bq. 131. 
 
 V. Broadbent, 7 H. L. 0. 600 ; 7 De Gr. (6) LillywhUe v. Trimmer, 36 L.J. 
 
 M. & G. 436 ; 5 Jur. (N. S.) 1319 ; (Ch.) 525. 
 
 Broadbent v. Imperial Gaslight and (7) Banhart v. Ebughton, 27 Beav. 
 
 CoJce Co., 3 L. J. (N. S.) 221; 2 L. J. 425 ; 5 Jur. (N. S.) 282 ; 28 L. J- 
 
 (N. S.) 1132.. (Ch.) 473; 7 W. R. 197; 32 L. T. 
 
 (3) lb. 382.. 
 
 (4) Broadbent v. Imperial Gas Co., (8) Widcs v. Hunt, 1 Joh. 372. 
 3 Jur. (N. S.) 221 ; 26 L. J. (Ch.) 276. 
 
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WASTE. 109 
 
 24. If the occupier of land, proceeding by the license of the Part ir. 
 owner of the land, perform acts which amount to a nuisance, for sect. ii. 
 which he would have no defence in an action, the owner will be 
 liable as well as the occupier, for the owner is bound to see that 
 his property is so managed that other persons are not injured (1). 
 
 25. The landlord of houses let to weekly tenants is within the 
 rule, that a reversioner cannot maintain an action at Law in respect 
 of a temporary nuisance, where the nuisance is temporary it is an 
 injury to the tenant ; nor is he entitled to an injunction, but it 
 would seem that the tenant and his landlord may join in a suit 
 to restrain a nuisance which is injurious to the health and com- 
 fort of the tenant, and prevents his residing in the rooms or house 
 he may occupy (2). To entitle a reversioner to maintain an action 
 or to obtain an injunction in respect of a nuisance, the injury 
 must be necessarily of a permanent character (3). The right at 
 Law must be established before a bill of peace can be brought to 
 be quieted in the enjoyment of an alleged nuisance (4). 
 
 Sect. 12. Waste. 
 
 1. The general doctrine of a Court of Equity is, that there is 
 no jurisdiction to restrain a trespass unless it amounts to waste (5). 
 The tendency of the authorities upon the subject of injury to real 
 property is to break down the old distinction that existed between 
 waste and trespass. And where a defendant is in possession of an 
 estate, and a plaintiff claiming possession of it, seeks to restrain 
 him from cutting down trees, and digging sods and other such 
 like acts, the Court will not interfere unless the acts complained 
 of amount to such flagrant instances of spoliation as to justify the 
 Court in departing from the general rule ; but where a plaintiff is 
 in possession, and the person doing the acts complained of is an 
 utter stranger, not claiming under colour of right, then the 
 tendency of the Court is not to grant an injunction, unless there 
 
 (1) White V. Jameson, 22 W. E. (3) Motf v. Shoolbred, L. B. 20 Eq. 
 761 ; L. R. 18 Bq. 303. 22 ; 44 L. J. (Oh.) 380. 
 
 (2) Jones v. Ghappell, L. R. 20 Eq. (4) Anon., 2 Ves. Sen. 193. 
 
 539, 543 ; 44 L. J. (Ob.) 658 ; Simp- (5) Turner v. Singwood Hiyhway 
 
 son V. Savage, 1 C. B. (N. S.) 347. Board, 18 W. E. 424. 
 
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no WASTE. 
 
 Pabt II. are special circumstances, but to leave the plaintiff to his remedy 
 Sect. 12.' at Law, though if the acts tend to the destruction of the inherit- 
 ance, the Court will grant an injunction ; but where a plaintiff in 
 possession seeks to restrain one who claims by an adverse title, 
 the tendency of the Court will be to grant an injunction, at least 
 when the acts committed do or may tend to the destruction of the 
 estate, or are injurious to the inheritance (1), (2), or produce possible 
 mischief by irreparable injury (3). 
 
 2. Though the Court will, at the instance of a person merely 
 alleging a legal title to realty, grant an injunction to, restrain 
 persons in possession of an estate from committing malicious and 
 destructive waste (4), yet such a case must be clearly made out (5). 
 If a defendant in possession decline to try his right to commit the 
 act complained of as waste, by an action at Law, the Court will 
 grant an injunction (6). And if a defendant in possession, though 
 insisting on his own title, admit he received possession in breach * 
 of a tenant's duty to his landlord, the plaintiff, the Court will 
 restrain waste by that defendant (7). 
 
 3. The authorities as to the jurisdiction of the Court to in- 
 terfere, at the instance of parties claiming real property under a 
 legal title, by appointing a receiver of the rents and profits, and 
 by injunction to restrain waste, establish these propositions: — 
 First: In the absence of fraud, and where there is no privity 
 between the parties, the Court will not interfere, at the instance of 
 a person so claiming, to grant a receiver against parties in posses- 
 sion. Secondly: Nor will it interfere, at the like instance, to 
 restrain waste, except malicious or destructive waste, ex. gr., by 
 pulling down the capital messuage, stripping the estate of its 
 timber, or other like acts, which no owner would do, or which 
 would destroy the property before they could be arrested at Law. 
 Thirdly : But flagrant acts of this exceptional character would, at 
 the present day, be restrained, and that before judgment at Law ; 
 
 (1) Lowndes v. BeUle, 33 L. J. (Ch.) J. 96 ; 4 Jur. (N. S.) 1172 ; 27 L. J. 
 (N. S.) 451 ; 10 Jur. (N. S.) 226 ; (Ch.) 273. 
 
 12 W. E. 399 ; 10 L. T. (N. S.) 55. (5) TMot {Earl) v. Scott, supra. 
 
 (2) See note p. 64, ante. (6) Cuddon v. Morky, 7 Hare, 202, 
 
 (3) Clowes V. Beck, 13 Beav. 347 ; affirmed by the Lord Chancellor, 24tli 
 20 L. J. (N. S.) Ch. 505. Nov. 1849. 
 
 (4) Talbot (Earl) v. Scott, 4 K. & (7) Norway v. Sowe, 19 Ves. 154. 
 
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WASTE, 111 
 
 and notwithstanding plaintiff were out of possession, and his title Part ii. 
 
 fj H APTER I 
 
 denied on oath by the defendant (1). Or where the defendant in sbot. 12. " 
 
 possession has not, upon notice of the application for the injiinction, 
 appeared, and the plaintiff has commenced an action of ejectment 
 in respect of the premises (2). But if an action at Law will give 
 all the remedy a party out of possession claiming adversely is 
 entitled to, the Court will not interfere (3). 
 
 4. An injunction to stay waste will not be granted where it 
 is doubtful whether the acts complained of are waste, in such 
 cases the question of waste or no waste must first be decided (4), 
 If the acts of waste committed are trivial, and the plaintiff's 
 proceedings have been dilatory, the Court will refuse an in- 
 junction (5). But a small degree of waste, manifesting an intent 
 to do more, will be sufficient for the Court to act upon ; though a 
 Court of Equity will look at it in the manner in which the subject 
 is viewed by the Courts of Law, and there the extent of the waste 
 done is considered very material (6). But if a lessee, bound by 
 covenant not to commit waste, has committed acts of waste, for 
 which damages merely nominal would be given, the Court of 
 Chancery will not entertain a suit against him founded on those 
 acts of waste, where it appears that he does not contemplate 
 committing any. further waste, nor assert a right to commit it (7). 
 
 5. If a case of prospective injury is made out, a Court of 
 Equity has jurisdiction to issue an injunction before waste has 
 actually been committed, and it is not necessary to stay till waste 
 is actually committed where the inteution appears, and the person 
 insists on his right to do it (8). Thus the sending a surveyor to 
 mark out trees is a sufficient ground for an injunction, the Court 
 will not wait till they are cut down (9). 
 
 (1) Talbot (Earl) v. Scott, 4 K. & (5) Barry v. Barry, 1 Jac. & W. 
 
 J. 96; 4 Jur. (N. S.) 1172 ; 27 L. J. 651, 653. 
 
 (Oh.) 273: vide Eaigh v. Jagger, 2 (6) lb. 
 
 Coll. 231. (7) Doran v. Carroll, 11 Ir. Ch. 
 
 . (2) Neale v. Oripps, 4 K. & J. 472. Eep. 379. 
 
 (3) WdstevY. South Eastern Badlw. (8) Gibson v. Smith, 2 Atk. 182; 
 Co., 1 Sim. (N. S.) 272 ; 6 Rail. Gas. et vide North Eastern Bailw. Co. v. 
 698. Elliott, 1 J. & H. 145 ; 2 De G-. F. & 
 
 (4) Lyon v. Wilhinscm, 1 L. J. (Ch.) J. 423 ; 10 H. L. C. 33. 
 
 155. (9) Jackson v. Cator, 5 Ves. 688. 
 
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112 WASTE. 
 
 Part II. 6. The interference of Equity in cases of waste is a wholesome 
 ^Sect™^' jurisdiction, to be liberally exercised, and depends on much 
 latitude of discretion in the Court (1). 
 
 7. Notwithstanding a denial of title, an injunction may issue 
 to stay irreparable mischief or waste (2). And a Court of Equity 
 will interfere to prevent the destruction of the inheritance, eren 
 where both title and possession are in dispute (3). 
 
 8. Where there is a privity of estate, as between reversioner 
 and particular tenant, an injunction may be had, without irre- 
 parable injury ; but it is otherwise where the parties are strangers 
 to each other in reference to the estate, or mutually adverse 
 claimants, whether the act be waste or trespass (4). 
 
 9. A Court of Equity will, at the suit of trustees, restrain 
 a tenant for life without impeachment of waste, in possession, 
 from cutting timber on estates, if by so doing he would interfere 
 with a discretionary power of felling the timber vested in the 
 trustees ; and though exemption from liability to waste annexed to 
 a life estate is a special power in the tenant for life, to appropriate 
 part of the inheritance, yet that power may, by the terms of 
 a settlement, be made subordinate to a discretionary power 
 conferred on the trustees (5) ; and if, upon the construction of 
 a settlement, the scheme of it is that the timber shall be used to 
 relieve the inheritance of the charges upon it, and that, for this 
 purpose, a power given to the trustees to fell timber is expressly 
 made paramount to the privileges of the tenant for life with- 
 out impeachment of waste, to cut the timber, though his consent 
 may be made necessary, to enable him to regulate the mode of 
 exercising the power, yet the Court will restrain him from pre- 
 venting the trustees from felling or receiving the proceeds of the 
 timber (6). 
 
 . 10. A Court of Equity will not interfere unless it is shewn- that 
 there is danger from the mode in which a tenant for life in 
 
 (1) Cane v. VanderburgJi, 1 John. Cli. Dec. 371. 
 
 Ch. 11 (Amr.) (5) Kehewich v. Marker, 3 Mac. & 
 
 (2) United States v. Pwrrott, X G. 311. 
 
 M'AU, C. C. (Cal.) 271 (Amr.) (6) Briggs v. Earl of Oxford, 1 De 
 
 (3) Cornelius v. Post, 1 Stookt. 196 G. M. & G. 363; 5 De G. & Sm. 156; 
 (Amr.) 16 Jur. 53, 558. 
 
 (4) Georges, &c. v. Petmold, 1 Ind. 
 
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WASTE. 113 
 
 possession is dealing with the property (1). But such Courts Part II. 
 have no means of interfering in cases of pfermissive waste by seot. 12. 
 a tenant for life of real property ; and there is no implied trust to 
 keep the property in repair imposed upon a tenant for life under 
 a will, for if there were, he could not convey away his life estate 
 without committing a breach of trust ; nor, if he did, could he get 
 rid of the trust by so doing ; and a trustee to whom real property 
 is devised in trust for one for life, cannot interfere with the 
 possession of the equitable tenant for life because he neglects, to 
 keep the property in repair ; therefore such a trustee is not liable 
 to the remainderman for the neglect of the tenant for life to 
 repair; but if the tenant for life is committing active waste it 
 seems that the trustee may, and properly ought to interfere, at 
 least, if the persons entitled iu remainder are under disability (2). 
 An equitable tenant for life with remainders over ought not to cut 
 timber without the consent of the trustees (3). 
 
 11. Where there is a devise which, by construction of Law, is an 
 estate for life for a defendant in his own right, and a trust in him 
 as to the remainder in fee for the plaintiff, the devisee for life will 
 be enjoined from cutting timber (4). 
 
 12. A tenant for life simply (who is therefore impeachable of 
 waste) has no right to take the substance of the estate by opening 
 mines or clay pits ; but where the author of the settlement or gift 
 has previously worked them, the tenant for life has a right to 
 continue the working of them, and for this reason, that the author 
 of the gift has made them part of the profits of the land ; but it 
 does not follow that the tenant for life has a right to open old 
 abandoned pits, or to commence opening any mines or pits which 
 the author of the gift had merely made preparations for opening ; 
 and a tenant for life will be restrained from taking away the 
 substance of the estate before the question has been tried, namely, 
 whether the pits were in such a state as to enable the tenant for 
 life to work them (5). 
 
 (1) Butt v. Bossee, 6 Moo. Ind. (4) Wright v. Athyns, 1 V. & B. 
 App. 433. 313 ; see also 19 Ves. 299 ; 17 Ves. 
 
 (2) Powys V. Blagrave, 1 Kay, 495 ; 255 ; Coop. Ill ; T. & E. 143. 
 
 18 Jur. 462 ; 4 De G. M. & G. 448 ; (5) Viner v. Vaughan, 2 Beav. 466, 
 
 24 L. J. (Ch.) 142. affirmed by tlie Lord Chan. 9 June, 
 
 (3) Benton v. Benton, 7 Beav. 388. 1840. 
 
 I 
 
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114 waSte. 
 
 Pabt II. 13. If a tenant for life liable to waste, sell timber, tlie tenant for 
 
 Chapter T ' • • i 
 
 Sect. 12. ' lif« himself cannot prevent the vendee from cutting it, he cannot 
 '~ disaffirm his own act ; it is for the remainderman to file a bill for 
 the purpose of preventing the vendee from cutting it (1). 
 
 14. The Court will prevent the removal of timber wrongfully 
 cut (2). A tenant for life sans waste will not be interfered with 
 in the exercise of his legal powers, unless he is proceeding to use 
 those legal powers in a manner inequitable towards those in 
 remainder; therefore he may fell and sell trees planted for 
 ornament, if done in a proper course of husbandry (3). 
 
 15. But such tenants will be restrained to a reasonable exercise 
 of the right (4), and will not be permitted, witii an express clause 
 without impeachment of waste, to do acts that may destroy the 
 inheritance (5). 
 
 16. But there must be destruction and spoliation to ground such 
 an injunction (6). But a tenant for life without impeachment of 
 waste will not be restrained from felling trees fit for the purpose of 
 timber, though young and not such as would be felled in a course 
 of husbandlike management of the estate (7). So a tenant entitled 
 to a life interest in a term of years unimpeachable of waste, has 
 a right to fell timber for his own benefit, which is fit and proper 
 to be cut in the course of a due and husbandlike management of 
 the woods containing the timber (8). But a tenant for life entitled 
 to timber for repairs, cannot sell the same to reimburse herself 
 expenses incurred in repairs (9). 
 
 17. A tenant for life without impeachment of waste is at liberty 
 to cut timber generally, treating it in a husbandlike manner, 
 independent of the effect upon the beauty of the place, provided 
 that the exercise of that liberty cannot be checked by a due 
 application of the principles upon which, in the contemplation 
 
 (1) Wentworth v. 'Turner, 3 Ves. 3. (Belt's Ed.), and the note and re- 
 
 (2) Anon., 1 Ves. Jim. 93. ferenoes therewith ; vide Marker v. 
 
 (3) EalUwell v. Philips, 4 Jur. 607. Marker, 9 Hare, 1, 17. 
 
 (4) Aston V. Aston, 1 Ves. Sen. 521 ; (6) Piers v. Piers, 1 Ves. Sen. 521. 
 Vane v. Lord Barnard {The Baby (7) Smythe v. Smythe, 2 Sw. 251; 
 Castle Case), 1 Salt. 161; 2 Vern. I'Wils. 426. 
 
 738 ; Preo. Ch. 454 ; Gilb. Eq. Rep. (8) Bridges v. Stevens, 2 Sw. 150. 
 
 127. (9) Gowerv. Eyre, Cooi^. 156. 
 
 (5) Aston V. Aston, 1 Ves. Sen. 263 
 
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WASTE. 115 
 
 of a Court of Equity, that is waste which is not acknowledged Pakt ir. 
 such at Law, that is to say, equitable waste (1). And what SE0T.T2. ' 
 a prudent owner would do in the proper course of management, 
 is no measure of what a tenant for life without impeachment of 
 waste, may do as to cutting timber planted or left standing for 
 ornament (2). 
 
 18. A tenant for life with liberty to cut timber at seasonable 
 times, is not to cut trees planted for ornament or shelter to the 
 mansion-house, or sapling trees not fit to be cut or felled for 
 timber (3). There is no doubt that a tenant for life may have an 
 injunction to restrain waste, particularly as to ornamental timber, 
 as that is not so much upon his interest as his enjoyment (4). And 
 an injunction will be granted to restrain waste in cutting trees, on 
 a bill by a party who is only tenant for life and has no right to 
 the trees, although a party entitled to the inheritance has not 
 been joined (5). ' 
 
 19. A lessee for lives renewable for ever will, unless under special 
 circumstances, be restrained from committing waste (6), as from cut- 
 ting turves, though the ground be improved by the waste (7). And 
 although the tenant has immemorially cut turf (8). But he will 
 not be restrained from cutting turf as firebote (9). A tenant lessee 
 will not be allowed to breakup ancient meadow or pasture, though 
 the land is mossy and requires tillage (10). 
 
 20. A Ccjurt of Equity will restrain waste by a lessee for lives 
 renewable for ever, although the act done may lead to the im- 
 provement of the land, if it immediately occasion any damage to 
 the inheritance ; and it will not refuse to restrain waste by which 
 the estate is not necessarily and permanently improved, on the 
 mere ground that the party has done other acts which will benefit 
 
 (1) Surges v. Lcmh, 16 Ves. 185. (7) White v. Walsh, 1 Jones, 626, n. ; 
 
 (2) Ford V. Tynte, 2 De G. J. & S. Anon., lb. 
 
 122. (8) Waterparh (Lord) v. Austen, 
 
 (3) Chamlerlyne v. Bummer, 3 Bro. 1 Jones, 627, n. ; Purcell v. Walsh, lb. 
 C. C. 549. 625. 
 
 (4) Davis v. Leo, 6 Ves. 784. (9) Salis (Count de) v. , 2 Moll. 
 
 (5) Dayrell v. Ghampneys, 1 Eq. C. 516 ; vide Coppinger v. Oubbins, infra. 
 Abr. 400, cited Dick. 197. (10) Martin v. Ooggan, 1 Hog. 120 ; 
 
 (6) Coppinger v. Oubbins, 3 J. & L. vide Coppinger v. Gubbins, infra. 
 397 ; 9 Ir. Eq. Eep. 304. 
 
 I 2 
 
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116 WASTE. 
 
 Pabt n. the estate (1). But it is doubtful whether the Court will, in such 
 ^SeJ™12! a ease (namely, that of a lease for lives renewable for ever), restrain 
 mere acts of meliorating waste by the lessee for lives (2). But a 
 tenant for life who has committed meliorating waste by allowing 
 her tenants to dig turf in fenny lands, but under an obligation to 
 prepare the land for agricultural purposes, is not accountable to 
 the persons entitled in remainder for the value of the turf re- 
 moved (3). 
 
 21. The Court will not interfere to restrain the waste of a sub- 
 tenant at the instance of his immediate landlord, if it appear that 
 the latter has obtained an indemnity against the claims of the 
 head landlord (4). The assignee of a sub-lessee of meadow and 
 pasture land for a term for lives renewable for ever, will be restrained 
 from converting premises into a public cemetery, for it would 
 seem that tbis would amount to waste at Common Law (5). 
 
 22. A mortgagor will be restrained from committing waste to the 
 prejudice of the mortgagee (6). After a decree in a foreclosure 
 suit, a mortgagor in possession will be restrained from committing 
 waste (7). A mortgagor of wood and underwood will not be re- 
 strained cutting underwood at seasonable times and proper growth, 
 such an act is not waste ; but if the mortgagor be a bankrupt, an 
 injunction will be granted on the right of the mortgagee to have 
 the estate sold in the plight in which it was at the date of the 
 bankruptcy, and to prove the rest of bis debt (8). A mortgagee 
 (not applying the produce of timber in sinking the principal and 
 interest) wilt be restrained from committing waste (9) 
 
 23. Although as between lessor and lessee a lease pennitting vl 
 waste may be good against the lessor, yet it is within the province 
 of the Court, while money, due under a settlement to the plaintiff, 
 remains unpaid, to prevent any waste which may tend to injure 
 the security (10). If the debt due to a judgment creditor is in 
 danger of being lost by acts of waste on the part of one who is 
 
 (1) Coppinger v. GubUns, 3 J. & (5) Bunt v. Brovm, Sau. & Sc. 179. 
 Lat. 397; 9 Ir. Eq. Kep. 304; Leeds (6) Farrant v. Lovel, 3 Atk. 723. 
 (Duke) V. AmTiurst, 2 Ph. 122. (7) Goodman v. Kine, 8 Beav. 379. 
 
 (2) lb., vide iialis (Count de) v. , (8) Eampton v. Hodges, 8 Ves. 105. 
 
 Martin v. Coggan, supra. (9) Farrant v. Lovel, supra. 
 
 (3) Ha/rris v. Ekins, 20 W. E. 999. (10) Turkingtonv. Eearman,li. & 
 
 (4) Keogh v. Collins, Hay & J. 805. G. t. Sus:d. 8.5. 
 
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WASTE. 117 
 
 heir-at-law and administrator of the debtor, the Court will grant Pabt ir. 
 an injunction to stay the waste (1). Sect. 12. ' 
 
 24. By its general jurisdiction to repress fraud, the Court of 
 Chancery will, although the plaintiff may have a legal remedy, 
 interfere to prevent waste being committed by a tenant for life in 
 collusion with the owner of the first estate of inheritance, or by a 
 person who unites both those characters in himself; and as trustees 
 to preserve contingent remainders may file such a bill during the 
 life of tenant for life in remainder, so may such a bill be instituted 
 by tenant for life in remainder himself. On the same principle, 
 where waste has been committed by a tenant for life at a time 
 when he was also owner of the first estate of inheritance, and when 
 there was no one capable of bringing an action, a bill to make his 
 estate accountable may, after his death, be brought by a tenant 
 for life in possession. But the Court must be satisfied that the 
 acts of the deceased tenant for life were such as amounted to col- 
 lusion between the two characters which he united in himself; 
 and if the tenant for life, being also ultimate remainderman in fee, 
 lay out sums in permanent improvements on the estate at least 
 equal to the value of the amount realised by the acts of waste, 
 which are themselves of trivial amount, a bill by a tenant for life 
 will be dismissed (2). 
 
 25. The Court will interfere if the tenant for life and the remain- 
 derman in fee, subject to contingent estates, are committing waste 
 in collusion (3). Or where waste is being committed by a tenant 
 for life in possession, who has the next vested estate of inheritance 
 in remainder, but subject to intermediate contingent estates (4). 
 Where there is an executory devise over even of a legal estate, a 
 Court of Equity will not permit timber to be cut, more especially 
 in the case of a trust estate ; and an heir who is entitled by way of 
 resulting trust, until the determination of an event upon which the 
 future contingent estates are to arise, will be restrained from 
 cutting timber (5). 
 
 (1) Leake y. Beckett, lY. &. J. ^SQ. (3) Garth v. Cotton, 1 Dick. 183 ; 
 
 (2) Birch-Wolfe v. Birch, L. E. 9 1 Yes. Sen. 524, 548 ; 3 Atk. 751. 
 Bq. 683 ; 39 L. J. (Ch.) 345 ; 18 W. E. (4) Williams v. Bolton (Duke of), 
 594 ; 23 L. T. (N. S.) 216. 1 Cox, 72. 
 
 (5) Stansfleld v. Hahergham, 10 Ves. 273. 
 
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118 WASTE. 
 
 Part II. 26. An injunction will be granted against waste by a tenant for 
 
 SEor. 12.' years (1). So the Court will restrain a tenant from year to year 
 under notice to quit, as in the case of a lessee for a longer term, 
 from doing damage, and from removing the crops, manure, &c. ; 
 except according to the custom of the country (2). Where the 
 relation of landlord and tenant exists between the parties, the 
 Court sometimes interferes to restrain waste, though the locus in 
 quo, being the property of the landlord, is not any part of the 
 demised premises (3). 
 
 27. The Court will restrain waste in an under-lessee at the suit 
 of the ground landlord (4). An assignee of a lease is entitled to 
 an injunction to restrain the landlord from cutting ornamental 
 trees on a lawn during the term of the lease, if the conduct of the 
 landlord since the execution of the lease amounted to a consent to 
 the tenant's plan of improyement, laying out the lawn, &c. (5). 
 
 28. In cases of waste it is the business of a reversioner to apply 
 to the Court promptly (6). Although the Court in one case (7) 
 ultimately granted an injunction to stay waste by the cutting of 
 timber, at the suit of a devisee in trust against the heir-at-law in 
 
 _ possession, who disputed the will ; yet in another case (8) an in- 
 junction was refused against felling timber, at the suit of a devisee 
 against the heir-at-law in possession admitting the waste, but dis- 
 puting the will, on the ground that the denial of the title of the 
 devisee and the assertion of the title as heir, made him, if he had 
 no right, a mere trespasser. Where a case of election is raised as 
 against an heir-at-law, the intended devisee will be restrained from 
 committing waste until the heir has been elected (9), 
 
 29. An injunction will be granted against waste between tenants 
 in common where one is occupying tenant to the other, but other- 
 wise there is no injunction between tenants in common except as 
 to positive and actual destruction (10). Nor will the Court grant 
 
 (1) Kimpton v. Eve, 2 V. & B. 349. (7) Fingal (Earl) v. Blake, 2 Moll. 
 
 (2) Omlow V. , 16 Ves. 173. 50, 542. 
 
 (3) Wrixon v. Condran, 1 Ir. Eq. (8) Beatty v. Beatty, 2 Moll. 541. 
 Eep. 380. (9) Boughtm v. Boughtm, 2 Ves. 
 
 (4) Farrant v. Lovel, 3 Atb. 723. Sen. 12 (vide Belt's Supp. 2.50). 
 
 (5) Jachson v. Cator, 5 Ves. 688. (10) Twort v. Twort, 16 Ve.s. 128 ; 
 
 (6) Barry v. Barry, 1 Jac. & W. Eok v. Thtymas, 7 Ves. 589. 
 651, 653. 
 
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WASTE. 119 
 
 an injunction between tenants in common against pure equitable Pabt II. 
 
 , /I N Chapter I. 
 
 waste (1). Sbct. 12. 
 
 30. As between tenants in common, the Court will only interfere 
 to restrain waste in cases of destructive spoliation or waste, and 
 a tenant in common cannot be restrained by injunction, upon the 
 application of bis co-tenants, from cutting down and selling trees 
 and timber, where it appears that he is managing the estate 
 according to the proper course of husbandry, and destructive waste 
 cannot be proved (2). 
 
 31. After a decree has been made in a partition suit, the Court 
 has jurisdiction to grant an injunction to restrain a defendant from 
 destroying or wasting the property (3). But if there are two 
 tenants in common in possession, and one of them is insolvent 
 and unable to pay his co-tenant his share of the money produced 
 by the sale of the timber cut, the Court will grant an injunction 
 to restrain him from committing waste (4). 
 
 32. A jointress will be restrained from committing waste (5). 
 But if it has been covenanted that the jointure shall be of a 
 certain value, which it is not, the Court will refuse the injunc- 
 tion (6). And though a tenant for life, as a jointress, remainder 
 to B. for life, remainder over in tail, is dispunishable of waste at 
 Law, by reason of the mesne remainder for life, yet she shall be 
 enjoined from committing waste, in a Court of Equity (7). 
 
 33. If the under-tenant of a jointress for sixty years if she 
 should so long live, commit waste sparsim, so as at Law the estate 
 is forfeited, but insist he has improved the yearly value, and offer, 
 to take a lease at the improved rent and to pay for the timber 
 cut, it is doubtful whether the Court will relieve as to the 
 waste (8). 
 
 34. A tenant in tail will not be restrained from committing 
 waste (9). Tenant in tail after possibility of issue extinct being 
 
 (1) Hole V. Thomas, 7 Ves. 589. (6) Carew v. Oarew, 1 Eq. C. Abr,. 
 
 (2) Arthur v. Lamh, 2 Dr. & Sm. 400. 
 
 428 ; 12 L. T. (N. S.) 338. (7) Traci/ v. Tracy, 1 VerD. 23 ; 
 
 (3) Bailey v. Hdbson, L. E. 5 Ch. 180. Tresham v. Oerrard, TotMll, 144 ; 
 
 (4) Smallman v. Onions, 3 Bro. Bassett v. Bassett, Pinch, 189. 
 
 C. C. 621. (8) Ligo v. Smith, 2 Vem. 263. 
 
 (5) Go'jke V. Whalley, 1 Eq. C. Abr. (9) Wyld v. Lewis, 1 Atk. 432. 
 400. 
 
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120 WASTE. 
 
 Part IT. dispunishable for waste by the Law, lias, equally with the tenant 
 ^^E^^ii' f""" life without impeachment of waste by settlement, an interest 
 and property in the timber (1). And tenant ia tail after possi- 
 bility of issue extinct, having been once tenant in tail in posses- 
 sion with the other donee, and therefore dispunishable for waste, 
 may not only commit waste, but also convert to his or her own use 
 the property wasted, and will, therefore, rot be restrained in 
 Equity, except for malicious, or destructive, or equitable waste (2). 
 But a jointress tenant in tail after possibility &c., ought to be re- 
 strained from committing wilful waste, she being a jointress within 
 11 Hen. 7, and by that statute she is restrained from aliening (3). 
 35. A tenant in tail shall have satisfaction for so much of the 
 value of his inheritance as shall have been received by the tenant 
 in fee in remainder, the produce of waste — committed by him 
 before the tenant in tail, a contingent remainderman, comes 
 in esse — in collusion with the tenant for a given number of years 
 if he should so long live sans waste (except voluntary), and the 
 executors of the tenant in fee in remainder are liable for the 
 amount so received (4). And the trustees to preserve &c., in 
 such a case, may have an injunction to stay waste before the 
 contingent remainderman comes in esse (5). And if there be 
 tenant for life, remainder for life, remainder in fee ; it" tenant for 
 life commit waste in trees, and afterwards remainderman for life 
 dies, the remainderman in fee may bring an action for waste (6). 
 And where first tenant for life gives leave to a second, who is 
 without impeachment of waste, to cut timber, the Court will 
 jjrant an injunction, for he ought not to do waste before the estate 
 to which the privilege is annexed comes into possession (7). 
 
 (1) Williams v. Williams, 15 Ves. 2 Eq. C. Abr. 757; Williams y. Day, 
 419, 430 ; vide Lewis Bowles' Case, 11 2 Ch. Ca. 32. 
 
 Eep. 80 a; Litt. s. 352; Abraham v. (4) Oarth v. Cotton, 3 Atk. 751; 
 
 JBiibb, 2 Freem. 53 ; Turner v. Wright, 1 Ves. Sen. 524, 546. 
 
 2 De G. F. & J. 247. (5) lb. 
 
 (2) Williams v. WilliaTns, supra ; et (6) lb. ; et vide JRohinson v. Litton, 
 vide Oarth v. Cotton, Dick. 183; 3 3 Atk. 210 ; Farrant v. Loi!d,lh.m. 
 Atk. 751 ; 1 Ves. Sen. 524, 546. (7) lb. ; et vide Abraham v. BM, 
 
 (3) Cook V. Winford, 1 Eq. C. Abr. (called in Garth v. Cotton, ante, Abra- 
 221, pi. 2; 3 Madd. 528; Aston v. hall v. Bahh), 2 Eq. C. Abr. 757; 
 Aatnn, 1 Ves. Sen. 264, 267 ; Abraham 2 Freem. Ch. 53 ; 2 Show. 69. 
 
 V. Bubb, 2 Freem. 53 ; 2 Show. 69 ; 
 
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WASTE. 121 
 
 36. The Court will not restrain a party from cutting timber unless Part II. 
 
 Ohapter I 
 
 security be given to that party for the full value of all he might seot. i2. 
 have cut in his lifetime, to the intent that he may not be a sufferer 
 by an injunction which at the hearing of the cause may not be 
 thought sustainable (1). The right to an account for waste 
 already committed is incidental to the right to file a bill to 
 prevent further waste (2) ; though no bill will lie merely for an 
 account for waste done, because the plaintiff has an ample remedy 
 at Law (3). So Equity may forbid by injunction the removal of 
 what has been obtained by past waste (4). So, although Equity 
 will not sustain a bill filed solely to prevent removal of timber wrong- 
 fully cut, or for an account of past waste, there being a complete 
 remedy at Law; yet when the bill is also filed to pre^^ent future 
 waste, to avoid multiplicity of suits, the Court will allow an account 
 of, and satisfaction for, what has been done, and to prevent 
 irreparable mischief will enjoin removal of the timber (5). Bills 
 to restrain waste must waive all forfeitures and penalties (6). 
 
 37. A Court of Equity will stay equitable waste : for instance, 
 waste of trees for ornament, or belonging to a mansion-house (7). 
 The doctrine of equitable waste applies equally to all cases of 
 estates limited to go in a course of succession, whether that object 
 is effected by creating life interests or estates in fee with executory 
 devises over ; but it is a question whether a tenant in fee simple, 
 subject to an executory devise over, can, in the absence of any 
 indication of a contrary intention, be restrained from committing 
 legal waste (8). There will be no injunction against equitable 
 waste unless it has been committed, or is threatened (9). Timber 
 to be ornamental, so as to entitle it to the protection of the Court 
 
 (1) Davis V. Uphill, 1 Sw. 129, (5) Spear v. Cutter, 5 Barb. 486 
 136. (Amr ) 
 
 (2) Per Bell, C.J. ; Dennett v. Den- (6) Suffolk {Marl) v. Green, 1 Atk. 
 nett, 43 N. H. 503 (Amr.) 450 ; Mitf. PI. 162 ; Att.-Gen. v. Vin- 
 
 (3) Per Bell, C.J. ; Dennett v. cent. Bun. 192. 
 
 Dennett; United States v. Parrott, (7) Oarth v. Cotton, 3 Atk. 751, 
 
 infra. 756. 
 
 (4) United States v. Parrott, 1 (8) Turner v. Wright, Joh. 740; 
 M'All. C. C. 271 (Amr.); Higgin- 6 Jur. (N. S.) 647; 29 L. J. (Oh.) 
 hotham v. Hawkins, h. E. 7 Ch. 676 ; 470 ; 8 W. R. 387 ; 6 Jur. (N. S.) 809 ; 
 41 L. J. (Ch ) 828 ; 20 W. E. 955 ; 27 29 L. J. (Ch.) 598 ; 8 W. R. 675. 
 
 L. T. (N. S.) 328. (9) Fotts v. Potts, 3 L. J. (Ch.) 176 
 
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122 WASTE. 
 
 Part II. against equitable waste, must be connected with or adjacent to a 
 
 Chaptitr T 
 
 Sect. 12. residence (1). No proceedings for equitable waste can be main- 
 tained in respect of trees planted for ornament, as to a house 
 which, has formerly been a principal mansion, and having gone 
 into decay, has been restored by a tenant for life (2). And the 
 mere fact that a devisor or settlor may have tliought that the 
 house might possibly be rebuilt, is not enough to make the timber 
 ornamental timber (3). A tree or trees may be highly ornamental 
 and yet not be entitled to the protection of the Court as being 
 planted or left standing for ornament. There must be some act of 
 dedication, ex. gr., planting an avenue, cutting a vista, erecting 
 obelisks, &c. Saplings are not within the doctrine, nor are hedge- 
 row trees, or any trees, however ornamental, if not planted also 
 for profit, within the doctrine (4). But timber need not necessarily 
 be ornamental to a house, for the Court protects trees even if they 
 are out of sight of the house (5). And a tenant for life without 
 impeachment of waste will be restrained from cutting timber 
 planted or left standing for ornament, &c., whether ornamental or 
 not so, and the principle has been extended beyond the mansion- 
 house to out-houses and grounds, plantations, vistas, avenues, and 
 all the rides about the estate for ten miles round (6). 
 
 38. In the preservation of ornamental timber the protection of 
 the Court is confined to timber planted and leit standing for 
 shelter or ornament, and the question whether the protection 
 should be extended to particular timber is, therefore, one of fact, 
 and the determination must depend upon the evidence which can 
 be collected to establish the fact (7). 
 
 39. The assignees of a bankrupt tenant for life without im- 
 peachment of waste have no right to cut ornamental timber any 
 more than the tenant for life himself, and if they do, the money 
 proceeding from the sale will go to the first person entitled to the 
 
 (1) MickUthwatt v. Micldethwait, (4) Ealliwell v. Philips, 4 Jur. 607. 
 1 De G. & J. 504 ; 3 Jur. (N. S.) 765, (5) WelhsUy v. Wdksley, 6 Sim. 
 219 ; 26 L. J. 721. 497. 
 
 (2) Newdigate v. Newdigate, 6 Bli. (6) Downshire (Marquis) v. Sandys, 
 (N. S.) 734 ; 2 01. & F. 601. 6 Ves. 107, 110. 
 
 (3) Newdigate v. Newdigate, 6 Bli. (7) Marker r. Marker, 9 Hare, 1, 
 (N. S.) 734 ; Micklethwait v. Mickle- 18 ; 15 Jur. 663 ; 20 L. J. (Ch.) 246. 
 thwait, 1 De G. & J. 504, 527. 
 
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WASTE. 123 
 
 inheritance, and tlie assignees will be deprived of the income, Part ir. 
 even during the life of the tenant for life ; for the doctrine and seot. 12. 
 principle of a Court of Equity in such a case is that no man shall 
 obtain a benefit by his own wrong (1). Equitable waste by a 
 tenant for life is a breach of trust, and his assets after his death 
 are answerable for the same (2). 
 
 40. Where a tenant for life is felling trees planted for ornament 
 or shelter, the reversioner has an absolute right to restrain him j 
 but when the reversioner stands by and sees him fell the trees, 
 and afteiTvards applies to the Court, the case becomes one for 
 damages only, and the sole question is, how far the inheritance is 
 actually damaged by the felling of the trees (3). Although a 
 Court of Equity will grant an injunction to restrain a tenant for 
 life from cutting down ornamental timber, irrespective of the 
 question whether or not any damage would be occasioned to the 
 inheritance by such cutting; and unquestionably it is true that the 
 Court will interfere to prevent the cutting down of trees planted 
 for ornament, even although such trees may be (in the opinion of 
 most persons) of the most absurd and fantastic shape, and rather 
 a deformity than an ornament; yet when the ornamental timber 
 lias been actually felled, and the reversioner claims damages from 
 the tenant for life in respect of such equitable waste, the amount 
 of damages can only be measured by the damage done to the 
 inheritance, and if no damage has been done, the claim will be 
 dismissed (4). 
 
 41. Trustees in whom an estate is vested ought not to cut down 
 ornamental trees alleged to be prejudicial, without first applying to 
 the parties beneficially interested for their assent, or to the Court 
 for its authority, and the omis of shewing that the trees are 
 prejudicial lies on the trustees, and they will be restrained, 
 although there may be no wanton destruction on their part, and 
 they may have acted honafde (5). 
 
 42. It would appear that a Court of Equity will more readily 
 
 (1) LusMngton v. Boldero, 15 Beav. (3) BuU v. Tdverton (2), 18 W. E. 
 1 ; 16 Jur. 140. 1147. 
 
 (2) Ormonde {Marquis of) v. Kyn- (4) Buhb v. Telverton, Ex parte 
 nershy, 5 Madd. 369. Eastings, L. R. 10 Eq. 465. 
 
 (5) Campbell v. Allgood, 17 Beav. 623. 
 
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124 WASTE. 
 
 Pabt II. act in executing and enforcing a restriction on the exercise of the 
 SEarT2. ' Isg^l power, in a matter of taste or ornament, where the restriction 
 
 is connected with a trust, than in the case of equitable waste, in 
 
 the absence of any such trust (1). 
 
 43. The Court, by applying the doctrine of equitable waste, 
 controls and restrains the excessive use of the legal power incident 
 to an estate unimpeachable of waste ; considering the excessive 
 use of such a power to be inequitable and unjust ; but it exercises 
 that control with reference only to the presumed will and inten- 
 tion of the party by whom the power was created (2) ; and orna- 
 mental timber will be entitled to the protection of the Court 
 though the mansion-house may have been pulled down, where 
 there is a power in the settlement to demise to persons who 
 should be willing to build or to repair houses ; for this circum- 
 stance tends to sustain the right of those in remainder to have 
 the trees preserved which were originally planted for shelter and 
 ornament ; because though the mansion-house which the trees 
 were intended to shelter and ornament may no longer exist, yet 
 there is a possibility of leases being made for the purpose of 
 building houses, which might receive a beneiit from the ornament 
 or the shelter afforded by the trees (3). 
 
 44. The injunction against cutting ornamental timber is not 
 extended so as to include the words " contribute to ornament " (4). 
 The Court does not protect timber because it is ornamental, but 
 it protects it if it is planted for ornament, whether it is or is not 
 ornamental (5). 
 
 45. A rector has no more extensive privileges, nor is there any 
 principle of Law by which a rector can obtain more extensive 
 privileges, as to waste, than an ordinary tenant for life (6) ; and 
 he will . be restrained from felling timber on the rectory lands, 
 save only for necessary repairs (7) ; as for the repairs of the 
 parsonage-house or chancel, but not for any common purpose (8) ; 
 and he is entitled to botes for repairing barns and out-houses 
 
 (1) Marker v. Marker, 9 Hare, 1, (4:) Williams v. M'Namara,8Yes.10. 
 18 ; 15 Jur. 663 ; 20 L. J. (Ch.) 246. (5) Coffin v. Coffin, Jac. 70, 71. 
 
 (2) It. (6) Buke of Marlborough v. St. 
 
 (3) Morris v. Morris, 15 Sim. 505 ; John, 5 De G. & Sm. 174. 
 vide Wellesley v. Wellesley, 6 Sim. (7) lb. 
 
 497. (8) Strachy v. Francis, 2 Atk. 217. 
 
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WASTE. 125 
 
 belonging to the parsonage (1). In respect to waste, a parson or Pabt li. 
 vicar is not to be considered as merely lessee for years, or as sect. 12. 
 tenant for life under a will or settlement ; and the Court will not 
 restrain an incumbent from ploughing up meadow infested with 
 moss and weeds, for the purpose of laying it down again in grass, 
 when properly cleaned, on the ground that a law to prevent the 
 amelioration of glebe lands by such means would probably be 
 very injurious to the persons who are, successively from time to 
 time, to enjoy the possession of such lands (2), 
 
 46. The purposes for which a vicar is entitled to cut timber 
 are limited to proper and necessary repairs for the vicarage-house, 
 buildings, and premises (3). It is quite clear a vicar is not 
 entitled to cut timber from the glebe, for the purpose of forming 
 a fund to repair dilapidations which he ought never to have 
 allowed to occur. With reference to an expression of Lord 
 Hardwicke, that parsons have been indulged in selling timber 
 and stone where the money has been applied in repairs (4), 
 perhaps the rector or vicar may procui'e an equivalent amount 
 of other timber by disposing of the first on the spot where he 
 cuts it, and getting some other timber at a more convenient 
 place (5). 
 
 47. The Court will grant a writ of prohibition and assistance to 
 the sheriff to prevent a prebendary from committing waste and 
 spoil upon the houses, lands, woods, and timber trees on his 
 prebend (6). 
 
 48. The patron is the proper person to institute a suit for the 
 purpose of restraining waste by the incumbent (7), and generally 
 the only proper person. But it would seem that the ordinary 
 may take proceedings to prevent waste by collusion between the 
 patron and incumbent (8). And a Court of Equity will restrain 
 the unlawful opening and working of mines under an agreement 
 between the incumbent and patron (9). 
 
 49. The Attorney-General on behalf of the Crown, the patron 
 
 (1) Strachy v. Francis, 2 Atk. 217. (5) Sowerby v. Fryer, supra. 
 
 (2) Bt. Allan's (Duhe of) v. Ship- (6) Acland v. Atwdl, 3 Sw. 499. 
 with or SUpworth, 8 Beav. 358. (7) Eolden v. Weekes, IJ. & H. 278 ; 
 
 (3) Sowerhy v. Fryer, L. E. .8 Bq. 6 Jur. (N. S.) 1288. 
 417. (8) lb. 
 
 (4) Knight v. Moseley, Amb. 176. (9) lb. 
 
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126 WASTE. 
 
 Part II, of bishopries, may have an injunction to stay waste against a 
 
 Chapieb I. , . , ,, . 
 Sect. 12. Olshop (1). 
 
 50. The Court will grant an injunction to stay waste against 
 the widow of a rector (2). 
 
 51. If tenant for life by demise of a bishop's predecessor, com- 
 mit waste during the vacancy, the successor has an action for 
 it ; and this action was not given by the Statute of Marlbridge 
 — if it were so, he might sue for waste done in the time of his 
 predecessor, which he cannot do — but this remedy is the policy 
 of the law (3). 
 
 52. A lessee for years of the temporalities of a bishop, under a 
 lease confirmed by the dean and chapter, and without impeach- 
 ment of waste, will be restrained from felling timber (4). 
 
 53. If a mere tenant for life cut timber it belongs, both at 
 Law and Equity, to those who at the time of its being severed 
 from the freehold were seised of the first estate of inheritance, 
 and the property becomes vested in them (5). Mines, as well as 
 timber trees, are a part of the inheritance, and no one has power 
 over them but such as has an estate of inheritance limited to 
 him (6), 
 
 54 A tenant for life has a right to what may be sufficient for 
 repairs and botes ; but he is not entitled to any share of the 
 money arising from the sale of decaying timber, and timber when 
 severed by the act of God, as by tempest, or by accident, or by 
 a trespasser and by wrong, belongs to the first owner of the 
 inheritance ; but decaying timber, if for the defence and the 
 shelter of the seat or house, or for ornament, must not be cut 
 down (7). If a tenant for life cut timber which is ripe for 
 cutting, but not decaying or overcrowding, the act is tortious, 
 and the right of the remainderman accrues (8). 
 
 (1) Knight v. Moseley, Amb. 176. 2 Eq. Ca. Abr. 759, pi. 8; Garth v. 
 
 (2) Eoskins v. Featherstone, 2 Bro. Cotton, 3 Atk. 751 ; and 1 Ves. Sen. 
 C. C. 552. 524, 546 ; S. C. Harg. Co. Litt. 218 b, 
 
 (3) Garth v. Cotton, 3 Atk, 751, note 2. 
 
 755. (6) Whitfield v. Bewit, 2 P. Wms. 
 
 (4) Winchester (Bishop of) v. Wol- 242. 
 
 gar, 3 Sw. 493. (7) Bewick v. Whitfield, 3 P. Wms. 
 
 (6) Whitfield v. BewU, 2 P. Wms. 267. 
 
 240 ; vide Bemck v, Whitfield, 3 P. (8) Seagram v. Eniyht, 36 L. J. 
 
 Wms. 267 ; Bolt v. Somerville (Lord), rCh.") 918. 
 
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MORTaAGES— JUDGMEOT'S -ANNUITIES. 127 
 
 55. Timber cut down by a tenant for life having a vested PaetH. 
 remainder in fee, while contingent estates are in expectancy, and Sect. 12. ' 
 the produce of the sale thereof, belong to the party who shall 
 
 appear entitled at the death of the tenant for life. The tenant 
 for life will not be allowed to take advantage of his own wrong 
 by taking the timber so cut (1). A bill by a landlord for an 
 account of waste in cutting timber by a tenant in his lifetime, 
 lies against the tenant's executors ; and an account will be granted 
 with an injunction as to waste by the executors (2). 
 
 56. If a devisee for life of lands incumbered with debts cut 
 down timber from the estate, he will be decreed to pay a rateable 
 portion thereof to a devisee in fee in remainder (8), 
 
 Sect. 13. Mortgages — Judgments — Annmties. 
 
 1. If a party contest the amount admitted by other incum- Mortgages, 
 brancers to be due to the first mortgagee, he cannot take 
 advantage of a stipulation by the first mortgagee not to sell 
 within a certain time (4). But if a puisne incumbrancer's offer 
 to pay off the first mortgagee has been declined, the mortgagee 
 will be restrained from transferring the first mortgage and parting 
 with the legal estate and deeds ; and though if a plaintiff comes 
 forward on a bill to redeem and to restrain a transfer, he is 
 bound to make out a, jprima facie case (5) ; yet if he does so, and 
 he is an incumbrancer on the property, the Court will not, 
 pending the suit, say that the defendant might sell the property 
 under the power of salq, and make a conveyance and transfer of 
 the legal estate ; for that would be determining on an inter- 
 locutory motion, that the plaintiff had no right ; and if he went 
 on and established his right to redeem, it would be impossible 
 for him to obtain any benefit at the hearing, as the purchaser 
 under the execution of the power would get a title to the estate ; 
 
 (1) WilUamhs v. Bolton (Duke), 1 (3) James v. Hales, 2 Vera. 267 ; 
 Cox, 72 ; e* vide Garth v. Cotton, 3 Atk. Free. Ch. 44. 
 
 751 ; 1 Ves. Sen. 524, 546. (4) Cockel v. Bacon, 16 Beav. 158. 
 
 (2) Fishmongers' Co, v, Beresford, (5) James v. Biou, 3 Sw. 237. 
 Beat. 607. 
 
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128 MORTGAGES— JUDGMENTS— ANNUITIES. 
 
 Chamek^i ^° ®"°^ *'' °*^^' *^® principle of protection of the property pending 
 Sect. 13. litigation ought to be applied, so as to restrain any dealing with 
 the legal estate until the rights can be determined (1). A mort- 
 gagee of a testator will be restrained from exercising his (io"er 
 of sale, where he has threatened to do so unless the executor of 
 the testator will also redeem a mortgage made by a devisee of the 
 testator (2). The principle upon which the Court restrains 
 persons filling a fiduciary character from having any dealings 
 for their benefit, does not apply to the case of mortgagor and 
 mortgagee (3). Although the Court will rot, unless under special 
 circumstances, grant an injunction to restrain a mortgagee from 
 selling under a power in the mortgage deed, it is otherwise wiiere 
 there is a trustee for sale, and be proceeds precipitately and 
 without notice to both parties (4). A sale of lands will be 
 restrained on an interlocutory motion, where, although the con- 
 Teyance is absolute on its face, there are probable grounds of 
 belief that it was intended only as a mortgage (5). 
 
 2. The Court will, upon an interlocutory application, restrain 
 a mortgagee from enforcing his power of sale under the mortgage 
 deed, where he does not deny that he has committed a breach 
 of trust (6). 
 
 3. Where there are several equitable incumbrancers, one of 
 whom by greater diligence, though later in date, gets, in aid 
 of his equitable incumbrance, a legal right, the Court will not 
 disturb him in his possession (7). 
 
 4. A mortgagee has a right to proceed on his mortgage and 
 bond at the same time ; but a mortgagee will be restrained from 
 proceeding at Law upon a bond, his collateral security, unless the 
 mortgagor is secure of his title deeds being delivered up (8). 
 But it is no ground for restraining a mortgagee from enforcing 
 his security at Law, that he has contracted to buy from the 
 mortgagor another estate, from the purchase money of which, the 
 
 (1) Rhodes v. BucJcland, 16 Beav. (5) Peeler v. Barringer, 1 Wins. 
 212. (N. 0.) No. 2 (Eq.) 5 (Amr.). 
 
 (2) WUtworth V. Rhodes, 20 L. J. (6) Merest v. Murray, 14 L. T. 
 (N. S.) Ch. 105. (N. S.) 321. 
 
 (3) Dohsmi V. Laud, 8 Hare, 221. (7) Bates v. Brothers, 17 Jur. 1174. 
 
 (4) Anon., 6 Madd. 10. (8) Schoole v. Sail, 1 Sch. & Lef. 176. 
 
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MORTaAGBS- JUDGMENTS-ANNUITIES. 129 
 
 mortgage debt is to be deducted (1). But although a mortgagee, Part II. 
 as such, has a right to all his remedies, yet where, by contracting seot.™3.' 
 
 to purchase mortgaged premises, he has made his character of 
 
 mortgagee conditional, depending on whether he is purchaser or 
 mortgagee, a Court of Equity will enjoin him from proceeding 
 at La,w (2). The assignee of a mortgagee cannot stand in any 
 different character, or hold any different position, from that of the 
 mortgagee himself, although the mortgagor may not have been 
 a party to the assignment ; and it is also clear that every mort- 
 gagor has the right to have a re-conveyance of the mortgaged 
 property upon payment of the money due upon the mortgage, and 
 that every mortgagee is charged with the duty of making such 
 re-conveyance upon such payment being made. This, indeed, 
 being no more than the necessary result of the relative positions 
 of the parties, the mortgage being only a security for the debt. 
 If, therefore, a mortgagee, having, besides the property mortgaged, 
 promissory notes .made by the mortgagor as collateral security 
 for his debt, transfer the mortgage without assigning the collateral 
 securities, he will be restrained from proceeding at Law to recover 
 the amount of one of his notes, pending a suit by the mortgagor 
 to redeem and settle the equities of the parties ; for the mort- 
 gagee is not entitled to sever the debt from the security (3). A 
 mortgagor is entitled to restrain an action against . himself to 
 recover the mortgage money upon a collateral security, upon pay- 
 ment into Court of the sum which appears to be really due upon 
 the mortgage (4). After foreclosure and sale an action by the 
 mortgagee re-opens the foreclosure ; therefore the mortgagee 
 should have time to get back the estate and tender a re-convey- 
 ance, and the mortgagor to redeem (5). But if a mortgagee who 
 has sold the estate, has taken possession a considerable time before 
 the filing of a bill to redeem and stay an action on a collateral 
 security, and the balance is inconsiderable, the Court will grant 
 a perpetual injunction to restrain the action — for instance, an 
 action on a bond given as a collateral security (6). 
 
 (1) Pell V. Stevens, Coop. temp. (3) Walker v. Jones, L. E. 1 P. 0. 50. 
 Brougham, 266; 2 My. & K. 334; (4) Taylor\.Waters,lMy.&CT.266. 
 4 Tyrw. 6. (5) Perry v. Barker, 8 Ves. 527 ; 
 
 (2) Drummond v. Pigou, 2 My. & 13 Ves. 198. 
 K. 168. ■ (6) lb. 
 
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130 MOETGAGBS— JUDGMENTS— ANNUITIES. 
 
 Part II. 5, ^ Court of Equity will not restrain a mortgagor in possession 
 
 Sect. 13. from felling timber growing upon the mortgaged estate, unless, 
 without the timber, the security is scanty or insufBcient (1). And 
 the injunction may be extended to cutting down undej-wood 
 contrary to the usual course of husbandry, but not to underwood 
 generally, although the mortgagor is insolvent (2). But if the 
 security is sufficient a Court of Equity will not grant an injunction 
 merely because the mortgagor cuts, or threatens to cut, timber ; 
 there must be a special case made out before such a Court will 
 interpose. But the difficulty consists in discoTering what is 
 meant by a sufficient security ; and it would seem that the 
 question which must be tried is, whether the property the mort- 
 gagee took as a security is sufficient in this sense — ^that the 
 security is worth so much more than the money advanced — ^that 
 the act of cutting timber is not to be considered as substantially 
 impairing the value, wliich was the basis of the contract between 
 the parties at the time it was entei-ed into (3). Though a mort- 
 gagee in fee may commit waste at Law, yet he shall never do so 
 in Equity, and will be restrained from cutting down timber, unless 
 the security is defective (4). But if a mortgagee in possession 
 commit waste by cutting down timber, and does not apply the 
 money arising by sale of the timber in sinking the interest and 
 principal of his mortgage, a Court of Equity will grant an injunc- 
 tion to stay the waste (5). A mortgagee will not be allowed to 
 retain the user of easements obtained by means of a trespass 
 committed by the mortgagor; but the mortgagee, not having 
 himself committed the trespass, will not be ordered to reinstate 
 the property so as to destroy the easements (6). 
 
 6. A mortgagor who redeems in a suit will be quieted in 
 possession, and shall have a re-conveyance from the parties 
 entitled under a settlement of the mortgaged estate made by the 
 mortgagee (7). 
 
 (1) King v. SmitJi, 2 Hare, 239, (4) Withrington v. CoteswoHh, Sel. 
 243-4: ; Eippesley v. Spencer, 5 Madd. Cha. Ca. 31. 
 
 422 ; Usborne v. Usborne, Dick. 75. (5) Farrant v. Lovel, 3 Atk. 723. 
 
 (2) Humphreys v. Barrison, 1 Jac. (6) Powell v. Allen, 4 K. & J. 343. 
 & W. 581. (7) Chapman v. Buncombe, 2 Vern. 
 
 (3) King v. Sm,ith, 2 Have, 239, 142. 
 
 243-4. 
 
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MORTGAGES— JUDGMENTS— ANNUITIES, 131 
 
 7. Where a mortgagor pays off the mortgage and takes a re- Part n. 
 assignment of the property, he must carry out any contract for seot. 13. ' 
 
 a sale thereof made by the mortgagee under a power of sale in 
 the mortgage deed. The party claiming under the contract has 
 the same right to have the contract completed against the mort- 
 gagor as he has against the mortgagee (1). 
 
 8. A mortgagee is a trustee for the mortgagor and those claiming 
 under him of the surplus of the purchase-money that may remain 
 after a sale of the mortgaged property; and the Court will 
 restrain any payment thereof that will prejudice the rights of 
 those entitled thereto (2). 
 
 9. Judgment creditors under an execution take the precise in- Jud-ments. 
 terest and no more which the debtor possesses in the property seized, 
 
 and a sale of the property seized — for instance, lands — being a 
 sale by the law and not by the debtor, such judgment creditors 
 will take such property subject to any incumbrances legal or 
 equitable that it was subject to in the hands of the debtor (3). 
 
 10. Although a judgment may not be enforceable for a given 
 period, yet a Court of Equity will in the meantime restrain trus- 
 tees from paying to the debtor, a tenant for life, the income 
 arising from the property affected, until the charge can be en- 
 forced (4). And a judgment creditor, who has sued out an elegit 
 without effect, is entitled to equitable relief, and a Court of Equity 
 will interfere and protect the property charged by a judgment 
 from destruction (5). 
 
 11. If a judgment is, in point of fact, satisfied, and a Court of Law 
 will not, in point of form, allow a judgment to be set off against 
 such satisfied judgment ; it is right tliat it should and it will be done 
 in Equity (6). But a Court of Equity has no jurisdiction to relieve 
 a plaintiff against a judgment at Law, where the case in Equity pro- 
 ceeds upon a ground equally available at Law and in Equity ; the 
 plaintiff must establish some special equitable ground for relief (7). 
 
 (1) Gutteridge v. Fletcher, 13 W. E. Canada Bailw. Co., L. E. 1 P. C. 64 ; 
 540. 12 Jur. (N. S.) 34. 
 
 (2) Robinson v. Hedger, 13 Jur. (4) Tescombe v. Landor, 5 Jur. 
 846 ; 17 Sim. 183 ; Thornton v. Finch, (N. S.) 780. 
 
 4 Giff. 515. (5) Partridge v. Foster, 34 Beav. 1. 
 
 (3) Wickham v. New Brunswich and (6) WUliams v. Davies, 2 Sim. 462. 
 
 (7) Harrison v. Nettleship, 2 My. & K. 423. 
 
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J32 
 
 MORTGAGES— JUDGMENTS— ANNUITIES. 
 
 Part II. 
 
 Chapter I. 
 
 Sect. 13. 
 
 Annuities, 
 
 And though a Court of Equity deals with a judgment at Law 
 according to the equities, if the equities are available at Law in 
 the action, the Court will not interfere (1). 
 
 12. A person who, without consideration, confesses a judgment 
 for the purpose of thereby withdrawing his property from the de- 
 mands of his creditor, has no equity for an injunction to restrain 
 the conusee from proceeding to levy the amount of the judgment, 
 although it never was used for the purpose for which it was con- 
 fessed (2). 
 
 13. An equitable mortgagee of lands is entitled in Equity to 
 enforce his cliarge, in priority to a creditor of the mortgagor, who, 
 without notice of the equitable mortgage, has subsequently thereto 
 recovered judgment against the mortgagor, and obtained actual 
 possession of the lands by writ of elegit and attorrmient of the 
 tenants (3). 
 
 14. The Court of Chancery has a concurrent jurisdiction with 
 Courts of Common Law in annuity cases, and therefore can enter- 
 tain a suit to raise the arrears of an annuity, though the deed 
 granting the annuity contain a clause enabling the grantee to dis- 
 train, and the bill contain no averment of any substantial difficulty 
 to prevent the plaintiff availing himself of this remedy (4). 
 
 15. If an annuity is secured by a covenarft and warrant of 
 attorney, and the arrears have been paid, a Court of Equity will 
 not restrain the executors of the grantor from paying his simple 
 contract debts, until they have set apart a fund to answer the 
 future payments, unless a case of past or probable misapplication 
 of assets is made out (5). 
 
 16. A grantor of annuities secured on lands who conceals prior 
 incumbrances will be restrained from receiving the rents; it is 
 perfectly clear that he ought not to be permitted to receive any 
 part of them (6). 
 
 . 17. If a surety under an annuity deed redeem an annuity after 
 
 (1) Butts V. Matthews, 5 L. J. 
 (N..S.),Ch. 134. 
 
 (2) M' Curdy v. Martin, 5 Ir. Eq. 
 Eep. 515. 
 
 (3) Whitworth v. Oaugain, 8 Have, 
 416. 
 
 (4) Manley v. Eawhins, 1 D. & 
 Wal. 363. 
 
 (5) Read v. Blunt, 5 Sim. 567. 
 
 (6) Dalmer v. Dashwood, 2 Cox, 
 378. 
 
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VENDOR AND PTJECHASEB, SPECIFIC PERFORMANCE. 133 
 
 the bankruptcy of the grantor, he is entitled to the benefit of the Paut il. 
 
 grantee's proof under the bankruptcy, and to proceed by action seo T.T3. 
 against the grantor for the arrears of the annuity subsequent to 
 the bankruptcy (1). , 
 
 Sect. 14. Vendor a/nd Pv/rehaser, Sjpeeifie Performanee. 
 
 1. A Court of Equity will not refuse to decree specific perform- 
 ance of an agreement, although the plaintiff may have a concur- 
 rent remedy in damages, or may have entered into a negotiation 
 for a money compensation which has failed, and will, if necessary, 
 grant an injunction to enforce the specific performance (2). In 
 cases of mistake by both of the parties to a contract, as to the 
 subject-matter of the contract, no injunction will be granted with 
 reference to such subject-matter, since neither party has, in such 
 cases, any right to require specific performance of the agree- 
 ment (3). 
 
 2. A vendor is not entitled to an injunction to restrain a pur- 
 chaser from buying another estate, on the ground that it will inca- 
 pacitate him from completing his first purchase (4). The fact that 
 a contract has been entered into for the purchase of land, is not 
 sufficient to entitle the purchaser to an injunction in respect of the 
 subject-matter of the contract, before the title has been accepted. 
 By not accepting the title, the purchaser, in effect, says that he 
 does not pledge himself to accept a conveyance (5). A Court of 
 Equity will, in a suit for specific performance by a vendor, restrain 
 an action by the purchaser to recover the deposit ; such a Court is 
 the proper tribunal to try a question of title (6). 
 
 3. If the subject-matters, the term of years to be granted, and 
 the rent, are certain, uncertainties in the subsidiary part of an 
 agreement are not sufficient to prevent a tenant from having the 
 agreement specifically performed, and the lessor will be restrained 
 
 (1) Watkins v. Flanagan, 3 Russ. (4) Syers v. Brighton Brewery Co., 
 421 ; S. 0. 1 Gr. & J. 199. Wright v. Brighton Brewery Co., 13 
 
 (2) Greene v. West Cheshire Eailw. W. R. 220. 
 
 Co., L. R. 13; Eq. 44; 41 L. J. (Ch.) (5) Heafh v. Maydew, 11 L. T. 
 
 17. (N. S.) 473 ; 13 W. R. 199. 
 
 (3) BuUerworthv.Walher, IS W.R. (6) KeU v. Nokes, 32 L. J. (N. S.) 
 168 ; 11 L. T. (N. S.) 43G. Ch. 785. 
 
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134 VENDOR AND PDBCHASBB, SPECIFIC PERFORMANCE. 
 
 Past II. from attempting to recoTer possession by an action of ejectment (1), 
 Sect. 14.' So of a parol agreement where the rent and the term are certain, 
 and the lessee has been let into possession, and there is a memo- 
 randum of the terms of the agreement (2). Where an original 
 agreement has been subsequently Taried, unless there be certainty 
 as to those variations as affecting the original agreement, so that 
 both together should form one consistent agreement, the jurisdic- 
 tion of specific performance cannot be applied, and the right to an 
 injunction must depend on the right to specific performance (3). 
 Upon an agreement by an original lessor with an intended sub- 
 lessee, to grant such a lease as the original lessee is entitled to, the 
 intended sub-lessee cannot restrain the original lessor from making 
 a lease to others of the premises, where the original lessee has not 
 satisfied the conditions of his original contract ; the intended sub- 
 lessee in such a case has no equity against the original lessor, the 
 only right he has is the right to such a lease as the original lessee 
 would have been entitled to claim (4). 
 
 4. If an agreement be of a personal nature on both sides, the 
 benefit of it is not assignable by either party without the consent 
 of the other, and the Court will not restrain a violation of the 
 agreement by a person acting under the authority of one of the 
 parties, at the suit of an assignee of the other party, claiming under 
 an assignment in which the first-mentioned party did not con- 
 cur (5). If a contract contain obligations of a personal character, 
 a Court of Equity will not restrain any obstruction that may be 
 offered to prevent the carrying out the contract (6). Where the 
 terms of a contract are such that the Court cannot superintend, so 
 as to secure the performance by a plaintiff- of his part, it will not 
 decree specific performance; and if, on non-performance by a 
 plaintiff, both parties cannot have equal justice, it will not, in the 
 absence of an express negative covenant, and where the contract 
 
 (1) Parker v. Taswdl, 4 Jur. (N. S.) (5) Stevens v. Benning, 6 De G. M. 
 183, 1006 ; 27 L. J. (N. S.) Ch. 812. & G. 223 ; 1 Jur. (N. S.) 74 
 
 (2) Pain v. Coombs, 3 Sm. & Giff. (6) Knight v. Burgess, 33 L. J. 
 449; 3 Jur. (N. S.) 307 ; 1 De G. & (Ch.) 727; 10 L. T. (N. S.) 90; 
 J. 24. Stacker v. BrockHehanh, 3 Mac. & Gf. 
 
 (3) Paris Chocolate Co. v. Crystal 256; Mair v. Himalayan Tea Co., H 
 Palace Co., 3 Sm. & Giff. 119. Juv. (N. S.) 1013. 
 
 (4) Anon., 1 L. J. (Ch.) 25. 
 
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VENDOR AND PUECHASEE, SPECIFIC PEEFOEMANCE. 135 
 
 cannot be split Into separate independent portions, and the nega- Paet il. 
 tive part enforced, grant an injunction to restrain acts the doing Seot. 14. 
 of which is inconsistent with the maintenance of the contract (1). 
 So a Court of Equity will not restrain a defen'iant from violating 
 his part of an agreement, where the agreement is such, that it 
 could not enforce specific performance by the plaintiff of his part 
 of it (2). Nor will such a Court entertain a bill for specific per- 
 formance of an agreement which contains terms that cannot be 
 enforced against the plaintiff, where the effect of a decree would 
 be, that, the plaintiff refusing to perform his part of the contract, 
 the defendant could not be restored to his former position (3). And 
 the Court will not interfere by injunction to restrain the violation 
 of an agreement of which, from the nature of the subject, as, for 
 instance, imparting the secret of an invention which has been the 
 subject of a patent long since expired, there can be no decree for 
 specific performance (4). So the Court will not restrain a defendant 
 from acting in violation of an agreement, where it cannot compel 
 him to perform his agreement, and therefore cannot compel specific 
 performance of the agreement (5). And the subject-matter of a 
 contract will not be protected by an injunction, unless the plaintifi' 
 is entitled ^to specific performance (6). The difference in the cases 
 where a negative term of an agreement has been enforced by in- 
 junction, although the rest of the agreement could not have been 
 specifically performed in Equity, is that the Court could at any 
 time, upon a breach of any other term in the agreement, restore 
 the parties to their former position, or nearly so, by dissolving the 
 injunction. The ground upon which a Court of Equity goes in 
 enforcing by injunction a negative term in an agreement, the posi- 
 tive terms in which cannot be enforced by decree for specific per- 
 formance, is, that the injunction is dependent upon the plaintiff 
 
 (1) Peto V. Brighton, Uchfield, and (3) Stacker v. Wedderlurn, 3 K. & 
 Tunhridge Wells Bailw. Co., 11 W. E. J. 393 ; 26 L. J. (Ch.) 713. 
 
 874 ; 1 H. & M. 468 ; 32 L. J. (Ch.) (4) Newbury v. James, 2 Mer. 446. 
 
 677 ; 9 L. T. (N. S.) 227 ; vide Lumley (5) Baldwin v. Society for the Diffu- 
 
 V. Wagner, 1 De G. M. & G. 604 ; Be sion of Useful Knowledge, 9 Sim. 393 ; 
 
 Mattos V. Cfihson, 4 De G. & J. 276 ; Clarke v. Price, 2 Wils. 157 ; vide 
 
 Webster v. Billon, 3 Jur. (N. S.) 432 ; Eernot v. Potter, 3 De G. P. & J. 447. 
 
 5 W. E. 867. (6) Geiger v. Oreen, 4 Gill. 472 
 
 (2) Bills V. Crdl, 1 Coop. C. C. 84. (Amr.). 
 
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136 VENDOR AND PUEOHASEB, SPECIFIC PERFOEMANCE. 
 
 Pakt II. performing his part of the contract, and will be dissolyed on his 
 Sect. 14.' failing to do so (1). Although a Court of Equity will not restrain 
 a party from discontinuing to do a thing, if it would be in effect 
 ordering the thing to be done, where that thing is of a personal 
 nature, as, for instance, carrying on the business of an innkeeper ; 
 yet it can restrain him from doing, or permitting to be done, any 
 act which will put it out of the power of the party to do the thing 
 he has covenanted to do (2). And although an agreement contain 
 no express condition not to do an act, which if done will prevent a 
 party who has contracted to do a thing from doing that thing, yet 
 a Court of Equity will restrain him from doing that act, and that, 
 notwithstanding it cannot enforce the performance of the contractj 
 as to the thing which the party agreed to do (3). But when the 
 principal portion of au agreement is incapable of specific enforce- 
 ment by the Court, and it appears that the entire agreement has 
 been broken, no relief will be granted in respect of a negative 
 clause therein contained, which is merely incidental to the general 
 relief sought, although such clause might liave been enforced had 
 it stood alone, or had the agreement been in other respects still 
 subsisting and undisputed (4). 
 
 5. In considering whether to grant or to refuse an injunction 
 to restrain a breach of a particular clause of an agreement, the 
 Court will look to the substance of the act to be performed, and 
 not merely to the presence or absence of negative words (5). 
 
 6. Acts in violation of a contract, or a term therein, will be 
 restrained (6) ; and that, although there be no evidence of any 
 actual damage done, and it is no answer to say that the acts pro- 
 posed will not be injurious, or even to prove that they will be 
 beneficial to the plaintiff (7). 
 
 (1) Stodier v. Wedderhurn, 3 K. & (3) WebsUr v. DUlon, 3 Jur.(N.S.) 
 J. 393 ; 26 L. J. (Ch.) 713 ; Lumley 432 ; 2 W. R. 867. 
 
 V. Wagner, 5 De G. & Sm. 485 ; 1 (4) Brett v. East India and Lmdm 
 
 De G. M. & G. 604 ; tt vide Great Shipping Co., 2 H. & M. 404. 
 
 Northern Bailw. Co. v. Manchester, (5) Wolverhampton and Wtdsall 
 
 Sheffield, and Lincolnshire Bailw. Co., Bailw. Co. v. Londofk and North- 
 
 5 De G. & Sm. 138; Bolfe v. Bolfe, Western Bailw. Co., 43 L. J. (Ch.) 131. 
 
 15 Sim. 88 ; 1 Coop. C. C. 87, n. (6) Bankin v. Huskisson, 4 Sim. 13. 
 
 (2) Booper v. Brodrick, 11 Sim. (7) Dickenson v. Grand Junction 
 ^7. Canal Co., 15 Beav. 260. 
 
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VENDOR AND PURCHASER, SPECIFIC PERFORMANCE. 137 
 
 ' 7. The Court will not restrain a breach of an agreement where Part II. , 
 
 Ohaptpr T 
 
 a Court of Common Law has decided that the word "penalty" Seot. 14.' 
 in the agreement means liquidated damages, and the plaintiff has 
 recovered a sum by way of such damages, and therefore has no 
 right of action remaining — for that would be to restrain the de- 
 fendant from doing that act for which he has paid the price of 
 doing (1). 
 
 8. Where an agreement has been long acted upon, as, for in- 
 stance, the permitting the use of the effects of one partnership by 
 another partnership, the Court will not interfere by injunction (2). 
 If the effect of an agreement is to constitute a party a partner, 
 as, for instance, in a patent, the Court will restrain the other 
 partner from interfering in the management of the business (3). 
 
 9. A Court of Equity will not grant an injunction to speci- 
 fically enforce an agreement which is founded on a fraud upon the 
 public (4). 
 
 10. Equity will restrain alterations in the subject-matter of an 
 agreement — as, for instance, a house agreed to be leased — where 
 there are circumstances that would probably prevent a specific 
 performance, namely, surprise, the effect of fraudulent misrepre- 
 sentation, and concealment, or the nature of the alterations 
 changing the nature of the subject-matter (5). 
 
 11. If there is a question to be decided at the hearing of the 
 cause, upon which will depend the circumstance whether the Court 
 will grant specific performance, it will grant an injunction in aid of 
 the bill for specific performance (6). And so also if it is too 
 hazardous to say there is not a fair and reasonable question whether 
 a contract may not be specifically executed, it will grant such an 
 injunction (7). 
 
 12. A Court of Equity will interfere by injunction to prevent a 
 party availing himself in any manner of a title arising out of a 
 
 (1) Sainter v. Ferguson, 1 Mac. & (5) Bonnett v. Sadler, 14 Ves. 
 G. 286 ; 1 H. & T. 383. 626. 
 
 (2) Glassington v. Thwaites, 1 S. (6) Browne v. Warner, 14 'Ves. 
 & S. 124. -156, 409; Price v. Assheton, 1 Y. & 
 
 (3) Blackford v. Hawkins, 1 L. J. Coll. 82 ; Attwood v. Barham, 2 
 (Oh.) 141. Russ. 186. 
 
 (4) Oldham V. James, 14 Ir. Ch. (7) Drewe v. Hanson, 6 Ves. 675. 
 Rep. '81. 
 
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138 VENDOR AND PUECHASBE, SPECIFIC PEEFOBMANCB. 
 
 Part II. Tioktion of riffht, or breach of contract or confidence. And tie 
 
 On T . O ' 
 
 Sect^T*. ' cases in which such a Court refuses to interfere by injunction until 
 the legal right is established by Law, have no application to cases 
 in which the Court exercises an original and independent jurisdic- 
 tion to prevent a wrong arising from a violation of right, or breach 
 of contract or confidence (1). So such a Court will restrain a 
 person from divulging a secret — as, for instance, in the preparation 
 of a medicine — which has been obtained by a breach of trust and 
 confidence (2). 
 
 13. Although on a biU for specific performance of an agreement 
 to sell, the Court will not in general restrain the owner from 
 dealing with his property, since a different doctrine would operate 
 to control the rights of ownership, although the agreement might 
 be such as could not be performed ; yet under some circumstances 
 the Court will restrain an owner from so doing, as, for instance, 
 from surrendering copyholds to persons other than the purchaser, 
 after delivery of possession and receipt of part of the purchase- 
 money (3) ; or from conveying the legal estate, as the plaintiff 
 might be put to expense by the necessity of making another party, 
 when the cause might be just ready for hearing (4) ; or from 
 letting (5). And vexatious alienations jpendente lite will be 
 restrained (6). The Court will restrain the sale of property upon 
 an agreement made by defendants which would be a violation of 
 the duty of the defendants to the plaintiff (7). It is the law, 
 consistently with authority and principle, that, however large may 
 be the power of trustees under their trust deed to introduce con- 
 ditions limiting the title, and other special conditions which have, 
 or are calculated to have, a depreciatory effect on the sale, they 
 are bound to exercise them in a reasonable and proper manner, 
 that they must not rashly or improvidently introduce a depreciatory 
 condition, for which there is no necessity or justification, and the 
 Court will, at the suit of a cestm que trust, restrain the trustees and 
 
 (1) JPrince Albert v. Strange, 1 Mao. (4) Ecliliff v. Baldwin, 16 Yes. 
 & G. 25 ; H. & T. 1. ' 267. 
 
 (2) Tovatt V. Winyard, 1 J. & W. (5) Turner v. Wright, 4 Bear. 40 ; 
 394; Morison v. Moat, 21 L. J. vide Curtis v. Marquis of Buckirig- 
 (Ch.) 248 ; 9 Hare, 241. ham, 3 V. & B. 168. 
 
 (3) SpilUr V. Spiller, 3 Sw. 556, (6) Daiy v. Kelly, 4 Dow. 440. 
 557. (7) Hawes v. James, 1 Wils. 2. 
 
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VENDOR AND PUECHASERj SPECIFIC PERFORMANCE. 139 
 
 a purchaser from completing a sale made under such conditions (1). Pabt II. 
 So it will restrain the re-selling of premises under the conditions gjoT. 14. " 
 of a prior sale, where the plaiutiff has a right to specific per- 
 formance of the contract, freed from a liability — for instance, to 
 an easements-attempted to be forced upon him by the Tendor (2). 
 But although, where there is a contract for the sale of land, a 
 Court of Equity will restrain the owner of the land from dealing 
 with it until a suit for specific performance has been disposed of, 
 yet if there is a serious question whether any contract exists, and 
 the claim of a plaintiff for specific performance is doubtful, such a 
 Court will act upon the consideration of the comparative incon- 
 venience which may arise from the granting or withholding the 
 injunction, and from the consideration that the granting the 
 injunction would, in case of the plaintiff ultimately failing, be 
 more injurious to the vendor than the refusal of it would be to the 
 purchaser, in the event of his ultimately succeeding (3). 
 
 14. In Equity it is not necessary for the alienation of existing 
 property that there should be a formal deed of conveyance, and a 
 contract to transfer the property, given for valuable consideration, 
 provided it is capable of being the subject of a decree for specific 
 performance, passes it at once, and the vendor becomes a trustee 
 for the vendee. This rule applies to personal property as well as 
 to real estate ; and such a contract, if made with respect to the 
 sale or mortgage of future acquired property, being capable ot 
 specific performance, transfers the beneficial interest in the 
 property, as soon as it is acquired, to the vendee or mortgagee, who 
 may have an injunction to restrain its removal (4). 
 
 15. A Court of Equity will not, upon an interlocutory motion, 
 restrain one of the parties to a contract, from an act for which, if 
 wrongful, the plaintiff can obtain compensation in damages at the 
 hearing of the cause, and where the contract, is one of which 
 specific performance cannot be decreed as against the plaintiff (5). 
 
 (1) Dance v. Goldinyham, L. R. 8 retf v. Banstead and Epsom Downs 
 Ch. 902, 909 ; 21 W. R. 761 ; 42 Eailw. Co., post. 
 
 L. J. (Ch.) 777 ; 29 L. T. (N. S.) 166. (4) Hdlroyd v. Marshall, 10 H. L. C. 
 
 (2) Russell V. Harford, L. R. 2 Eq. 507. 191. 
 
 (3) Hadley v. London Bank of Scot- (5) Garrett v. Banstead and Epsom 
 land, 3 De G. J. & S. 63; 11 Jur. Downs Bailw. Go., 13 W. R. 878; 4 
 (N. S.) 554 ; 13 W. E. 978 ; vide-Gar- De G. J. & S. 462. 
 
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140 yBNDOR AND PDECHASBR, SPECIFIC PEEFOEMANCB. 
 
 Pakt II. IQ. A Court of Equity will support an agreement, though by 
 
 Seot.^14. ' parol, followed . by long enjoyment, upon the principle on which 
 such a Court supports family arrangements, as, for instance, an 
 agreement for a partition by parties apparently, but doubtfully 
 entitled as tenants in common, who are in fact, respectively 
 tenant in tail and tenant in tail in remainder, a.nd will restrain 
 proceedings at Law in violation of such an agreement (1). 
 
 17. Although a Courl of Equity has jurisdiction to entertain a 
 suit for specific performance of an award, and to grant an injunc- 
 tion for the purpose of aiding in carrying out the award, yet that 
 relief cannot be granted in the case of an award, any more than it 
 can in the case of an agreement, if the Court cannot give fuU 
 relief to both parties (2). In all cases where the Court interferes 
 byway of enforcing specific performance of an engagement by 
 way of contract or agreement — for instance, in a lease— the juris- 
 diction it exercises by injunction is in an eminent degree dis- 
 cretionary, and ought to be guided and measured by what substan- 
 tial justice shall require as between the parties (3). 
 
 (1) NeaU V. Neale, 1 Keen, 672 ; ' 151 ; vide 12 JurrCN. S.) 874, u. 
 lb. 684, n. (3) Low v. Innes, 4 De G. J. & S. 
 
 (2) Blachett v. Bates, L. E. 1 Ch. 286, 290. 
 117 ; 2 H. & M. 610; 12 Jur. (N. S.) 
 
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( 141 ) 
 
 CHAPTEE II. 
 
 The Docteines and Principles as applicable to Peesonal 
 
 Peopeety. 
 
 Sect. 1. Patents. 
 
 I. The jurisdiction of a Court of Equity with reference to 
 patents is founded upon legal rights, the plaintiff coming into 
 the Court on the assumption that he has the legal right, and 
 the Court granting its assistance upon that ground. When a party 
 applies for the aid of the Court, the application for an injunc- 
 tion is made either during the progress of the suit or at the 
 hearing, and in both cases great latitude and discretion are 
 allowed to the Court in dealing with the applications. When 
 the application is for an interlocutory injunction, several courses 
 are open. The Court may at once grant the injunction sim- 
 pliaiter without more — a course which, though perfectly competent 
 to the Court, is not very likely to be taken where the defendant 
 raises a question as to the validity of the plaintiff's title ; or it 
 may follow the more usual and more wholesome practice, in such 
 a case, of either granting an injunction until the plaintiff has 
 established his legal title, or of requiring him first to establish 
 his legal title, and suspending the grant of the injunction until 
 the result 'of the legal investigation has been ascertained, the 
 defendant in the meantime keeping an account. Which of these 
 several courses ought to be taken must depend entirely upon 
 the' discretion of the Court, according to the, case made. And 
 when the cause comes to a hearing the Court has also a large 
 latitude left to it, and a case might then arise in which, even at 
 that stage, the Court might be of opinion that the injunction 
 might properly be granted without having recourse to a trial of 
 the legal right.. The conduct and dealings of the parties, the 
 frame of the pleadings, the nature of the patent right and of the 
 
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 Part II. 
 
142 PATENTS. 
 
 Part II. evidence by which it is established — these and other circuin- 
 ^^sl™"*!.^^' stances might combine to produce such a result, although this is 
 certainly not very likely to happen, and probably there is not a 
 case in which it has happened. Nevertheless, it is a course 
 unquestionably competent to the Court, provided a case were 
 presented which satisfied the mind of the judge that such a course, 
 if adopted, would do justice between the parties ; and, again, the 
 Court may, at the hearing, do that which is the more ordinary 
 course, it may retain the bill, giving the plaintiff the opportunity 
 of first establishing his legal right. And there still remains a 
 third course, the propriety of which must also depend upon the 
 circumstances of the case — that of at once dismissing the bill (1). 
 K the validity of the patent is not clear, nor the evidence of 
 exclusive possession satisfactory, an injunction will be refused until 
 the validity has been tried and determined (2). So, where after a 
 verdict, and pending a rule nisi for a new trial, the legal right is 
 still undecided, although a patent maybe of long standing; yet, if 
 from the nature of the alleged invention or the conflicting evidence 
 of its novelty, its validity appears to be doubtful, the Court will 
 not grant an injunction until the legal title has been established (3). 
 In every case where interlocutory injunctions are applied for, it is 
 important to consider what it is that the Court can most satis- 
 factorily do provisionally. Where an injunction is asked to 
 restrain the infringement of a patent, the Court has occasion to 
 
 (1) Bacon v. Jones, 4 My. & Cr. and constituted of the then Courts of 
 
 433, affirming S. C. sub. rurni. Sacon Chancery, Queen's Bench, Common 
 
 V. Spottiswoode, 1 Beav. 382 ; 3 Jur. Pleas, Exchequer, Admiralty, Probate, 
 
 476, 994. By " The Chancery Eegu- Divorce and Matrimonial Causes, Bank- 
 
 lation Act, 1862" (Bolt's Act), it is ruptcy, Common Pleas at Lancaster, 
 
 enacted that all questions of law or Pleas at Durham, Commissions of As- 
 
 fact, on the determination of which size, Oyer, Terminer, and Graol delivery, 
 
 the title to relief or remedy in Equity and " Court of Appeal," constituting 
 
 depends, shall be determined by or the Supreme Court of Judicature, crea- 
 
 before the Court of Chancery; but, ted by those Acts, are empowered to 
 
 where questions of fact may be more administer both Law and Equity, ss. 
 
 conveniently tried at assizes, issues 3, 4, 16, 18, 24, et passim. 
 may be directed by the Court of (2) Oollard v. Allison (1), 4 My. & 
 
 Chancery. See also the Supreme Cr. 487. 
 
 Court of Judicature Acts, 1873 and (3) Vo.;vide Curtisv.CuUs,8li.3. 
 
 1875, by which " 'Ihe High Court of N. S. (Ch.) 184 ; 3 Jur. 3<t. 
 Justice," consisting of five divisions. 
 
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PATENTS. 143 
 
 consider, firstj the validity of the patent, and, secondly, the fact of Part il. 
 the infringement ; and where those two facts are established, it is 's^eot™. ' 
 
 within the power, as it is the duty of the Court to grant an 
 
 injunction. There are many cases in which it is not clear either 
 that" the patent is legally valid, or that it has been infringed, and 
 it depends on the degree of doubt which exists on these questions, 
 whether the Court will grant an interim injunction. In such cases 
 it will cautiously consider the degree of convenience and incon- 
 venience to the parties, by granting or not granting the injunction. 
 These things are to be carefully considered. The right between 
 the parties is a legal right, and being a legal right, a Court of 
 Equity, in cases where the matter is doubtful, is naturally anxious 
 to arrive at a decisioa upon the legal right before it interferes to 
 prevent a party from exercising his frima facie rights. According 
 to the doubt which may exist in the mind of the Court upon the 
 facts, and according to the degree of inconvenience to the parties, 
 the Court; not thinking fit to grant the injunction at the time, may 
 take one of several courses. It may either refuse to grant the 
 injunction simply, or it may refuse it on the terms of the party 
 undertaking to keep an account, or it may direct the motion to 
 stand over on the terms of the plaintiff proceeding to establish 
 his legal right (1). The question whether the Court will interfere 
 to protect a patentee before he has established his right at Law, 
 or will suspend its interference until the right at Law has been 
 established, appears to depend upon very simple principles. It is 
 part of the duty of a Court of Equity to protect property pending 
 litigation ; but when it is called upon to exercise that duty, th e Court 
 requires some proof of title in the party who calls for its interference. 
 In the case of a new patent this is wanting. The public, whose in- 
 terests are affected by the patent, have had no opportunity of con- 
 testing the validity of the patentee's title, and the Court therefore 
 refuses to interfere until his legal right has been established. But 
 in a case where there has been long enjoyment under the patent (the 
 enjoyment, of course, including the use), the public have had an 
 opportunity of contesting the patent, and the fact of their not 
 having done so successfully, affords at least prima facie evidence 
 that the title of the patentee is good, and the Court therefore 
 (1) Bridson v. McAlpine, 8 Beav. 229. 
 
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144 PATENTS. 
 
 Paet II. interferes before the legal right is established (1), Still in an 
 Chapter II. . „ . . . ^ Ac 
 
 Sect. 1. infringement of a recent patent, it is not a matter oi course to 
 
 require a plaintiff to establish his legal right, but the Court will 
 have regard to the whole case made on the pleadings and by the 
 evidence (2). But where sufficient possession is made out, a 
 doubt as to the validity of the patent will not necessarily prevent 
 an injunction. The Court will look at the circumstances, and the 
 comparative inconvenience or loss to be occasioned by granting or 
 withholding it (3). So, where a Court of Equity, having heard a 
 case on full proofs, is well satisfied of the originality of an inven- 
 tion, the regularity of the patent, and the fact of infringement, it 
 will not send the case to a jury prior to granting a perpetual 
 injunction ; especially if the questions in the case, though questions 
 of fact, are such as the Court can decide upon the testimony of 
 men of science as well as, or better than, a jury, and where a jury 
 .trial would be long, costly, or troublesome (4). 
 
 2. But before a patentee can have an injunction he must ' 
 shew an exclusive enjoyment long enough to justify the presump- 
 tion of a right, or an incontestible right (5). However, the Court 
 will grant an injunction upon the ground of possession by the 
 patentee, that is to say, a reasonably long and undisputed pos- 
 session under a patent, until the right can be tried, though subject 
 to considerable doubt (6). Where the Crown on behalf of the 
 public grants letters patent, the grantee entering into a contract 
 with the Crown, ihe benefit of which contract the public are to 
 have, and the public have permitted a reasonably long and undis- 
 puted possession under colour of the patent, the Court has thought, 
 upon the fact of that possession proved against the public, that 
 there is less inconvenience in granting the injunction until the 
 legal question can be tried, than in dissolving it at the hazard 
 that the grant of the Crown may, in the result, prove to have 
 been valid (7). 
 
 (1) Caldwell v. Vanvlissengen, 9 122 ; Sargent v. Lamed, 2 Curt. 340 ; 
 Hare, 424. Clum v. Brewer, lb. 506 ; Woodwcrtl 
 
 (2) Clark v. Fergusson, 1 Giff. 184. v. Stone, 3 Story, 749 (Amr.). 
 
 (3) Sargent v. Seagrave, 2 Curt. 653 (5) Thomas v. Weeks, 2 Paine, 92 
 (Amr.). '- ' (Amr.) 
 
 (4) Goodyear v. Day, 2 Wall. Jun. (6) Farmer v. Plane, 14 Vbs. 130. 
 283. See Washlume v. Gould, 3 Story, (7) lb. 
 
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PATENTS. 145 
 
 3. In cases of patents the evidence required to prove that a Pakt li. 
 patent has been pirated, must be determined by the nature of the seot. i. 
 subject-matter, and also by the opportunity possessed by the pa- 
 
 tentee, the person on whom is thrown, in the first place, the onus 
 p-ohandi. In ordinary cases of pirated patents in England, 
 Courts of Equity have been in the habit, where there is a diflS- 
 culty in obtaining proof, of granting a limited order of access and 
 inspection of the machinery possessed, or the manufacture carried 
 on, by the individual who is charged with the piracy. But where 
 the opportunity of doing that is not enjoyed by the respondent, 
 by reason of the locality of a foreign manufacture, and the op- 
 portunity of describing the actual process pursued abroad is 
 possessed by the party charged with the piracy, and he can 
 therefore rebut the frirm fade evidence given by the patentee, 
 he must do so, or assign a satisfactory reason for not having 
 done so(l). The onus is on a patentee complaining of an in- 
 fringement, to shew not merely that the thing made is his own 
 patented article, but that it has been unlawfully sold, and he 
 must be prepared to swear distinctly that it is not manufac- 
 tured by him or his agent, and if the owner of a patent manu- 
 factures and sells the patented article in a foreign country as well 
 as in England, the sale of the article in one country implies a 
 license to sell and use it in the other, which can only be re- 
 butted by such evidence as above mentioned, or an explicit 
 agreement to the contrary (2). 
 
 4. If a case is brought to a hearing without a preliminary 
 trial of the right at Law, the Court, if it is of an opinion that 
 there is a sufficient case for protecting the plaintiffs right, subject 
 to its establishment at Law, but not a case entitling the plaintiff 
 to a perpetual injunction, without the establishment of the legal 
 right, will, in its discretion, retain the bill, for instance, for a year, to 
 give the patentee an opportunity of establishing his legal right (3). 
 And although it is the ordinary rule of the Court not to grant a 
 perpetual injunction to restrain the infringement of a patent, 
 unless either the legal validity of the patent has been or is con- 
 
 . (1) Neilson v. Betts, L. E. 5 H. L. 1, 239 ; 25 L. T. (N. S,.) 188 ; 19 W. E. 
 11 ; 40 L. J. (Ch.) 317 ; 19 W. B. 1121. 369. 
 (2) Betts V. WillnwU, L. E. 6 Ch. (3) Ward v. Ke'^, 10 Jur. 792. 
 
 L 
 
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146 PATENTS. 
 
 Pabt II. clusively established, or the patent has been undisputed for many 
 Sect. 1. ' years, yet the circumstances of the case may be such as to induce 
 the Court to depart from that rule (1). Long and excliisive 
 enjoyment under letters patent entitle a party to an iojuaction 
 until the legal right can be tried (2). The Court will, in such 
 cases, grant an injunction in the first instance, without preyi- 
 ously putting the party to establish his right at Law ; but it 
 is otherwise where the patent is recent (3). Though the Court 
 will not generally, in doubtful cases, restrain the infringement 
 of an asserted legal right until its validity has been established; 
 yet it is otherwise where there has been long uninterrupted en- 
 joyment under a patent, that being regarded as prima facie evi- 
 dence of title (4). But there must be no delay in filing the 
 bill (5). And delay in filing a bill to restrain an infringement of a 
 patent disentitles the plaintiff to an interlocutory injunction (6). If 
 a Court of Common Law is equally divided upon the question of the , 
 validity of a patent. Equity will continue an interlocutory injunc- 
 tion to restrain its infringement, while another action is brouglit to 
 obtain a decision as to its validity (7). The Court will grant an 
 injunction before the hearing of the cause, in support of a patent 
 right, where the patent is an old one, and there has been long and 
 undisturbed enjoyment of it, or where its validity has been es- 
 tablished elsewhere, and the Court sees no reason to doubt the 
 propriety of the result, or where the conduct of the defendant has 
 been such as to enable the Court to say, that as against the de- 
 fendant himself, there is no reason to doubt the validity of the 
 patent (8). The fact that an interdict has been granted against 
 an infringer in Scotland is, as against him, sufficient prima faeie 
 evidence of the validity of a patent for the United Kingdom, to 
 warrant an interlocutory injunction (9). But the patentee, in 
 order to entitle himself to an interim injunction on the ground of 
 previous enjoyment, must shew that there has been an actual 
 
 (1) JSenard v. Levinstein, 10 L. T. (5) Baxter v. Combe, 1 Ir. Ch. Kep. 
 (N. S.) 94, 177 ; Hills v. .Evans, 31 284. 
 
 L. J. (Ch.) 457. (6) Bovill v. Orate, L. R. 1 Eq. 388. 
 
 (2) Gurtis V. Cutts, 8 L. J. (N.'s.) (7) Bolton v. Bull, 3 Ves. 140. 
 (Cb.) 184 ; 3 Jur. 34. (8) Dudgeon v. Thomson, 22 W. B. 
 
 (3) Hia V. Thompson, 3 Mer. 622. 464 ; 30 L. T. (N. S.) 244. 
 
 (4) Stevens v. Kiiig, 2 Ph. 133. (9) lb. 
 
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PATENTS. 147 
 
 public user of his patent (1). Where there is a prima faeie case of Pabt II. 
 
 Chap TEH II 
 
 an infringement of a patent, the length of time the patent has been ■ Seot. i. 
 enjoyed by the patentee will influence the Court in granting an 
 injunction against the parties who are alleged so to have infringed 
 upon his rights (2). And even if there be great doubt as to the 
 validity of a patent, yet a long undisturbed enjoyment — as for in- 
 stance, for eight years — and the conduct of the defendant in not 
 trying the question on a previous occasion when the plaintiff had 
 raised it, will entitle the plaintiff to an injunction until the validity 
 of the patent can be tried (3). If a patent has been in force a 
 long period, for instance, twelve years, and has been the subject of 
 four suits against different persons, all of which terminated favour- 
 ably for the patentee, and in two of which verdicts were given in 
 favour of the validity of the patent ; the patentee will, in a fifth 
 case, be entitled to an injunction pending the trial of the legal 
 right, although a fresh fact may have been brought forward tend- 
 ing to impeach the novelty of the invention (4). As regards the in. 
 fringement of a recent patent, it is not a matter of course to require 
 the plaintiff to establish his right at Law, but the Court will have 
 regard to the whole case made upon the pleadings and by the 
 evidence (5). The fact that a patent is a recent one is no ground 
 lor refusing an injunction ex parte to restrain its infringement, 
 but the party seeking such an injunction is bound to support 
 his application by a clear and distinct statement upon affidavit, 
 that, he believes the patentee is the original inventor, and that 
 the invention had not been practised at the time the patent was 
 granted (6). 
 
 5. It is a principle of patent law that there must be the utmost 
 good faith in the specification ; that it must describe the invention 
 in such a way, that a person of ordinary skill in the trade may be 
 able to carry on the process (7). To be a good specification, it 
 must be intelligible to an ordinary workman using that amount 
 
 (1) Plympton v. Malcolmson, L. E. (4) Newall v. Wilson, 2 De G. M. 
 20 Eq. 37, 38 ; 44 L. J. (Ch.) 257 ; & G. 282. 
 
 23 W. R. 404. , , (5) Clark v. Fergusson, 1 Griff. 184. 
 
 (2) Davenport v. Richard, 3 L. T (6) Gardner v. Broadhent, 2 Jur. 
 (N. S.) 503. (N. S.) 1041. 
 
 (3) Betts V. Menzies, 3 Jur. (N. S.) (7) Sturz v. De la Bue, 5 Buss. 322 ; 
 357 ; 10 H. L. C. 117 ; 9 Jur. (N. S.) 29. 7 L. J. (Ch.) 47. 
 
 L 2 
 
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148 
 
 PATENTS. 
 
 Paet II. of skill and intellierence which is fairly to be expected from him (II, 
 Chapter 11,^ . 
 
 Sect. 1. If a patentee has taken out a fresh patent for improvements on his 
 
 original invention, it is sufficient if, reading his second specifica- 
 tion with the first, an artizan would have no substantial difficulty 
 in ascertaining what is claimed (2). Where a patented invention is 
 partly original and partly communicated from a foreign country, it 
 would appear that the part coramimicated from the foreign country 
 should be defined in the patent, and in the specification, which 
 should particularise what is new in the invention and what is old; 
 and when this is not done, a Court of Equity, upon an inter- 
 locutory application, will refuse an injunction to restrain its al- 
 leged infringement. This rule will apply, not merely to this, but 
 to other matters, when the letters patent Jand specification fail in 
 explicitness ; and the age or date of the patent is, under such 
 circumstances, a material element in the consideration (3) Though 
 it is part of the condition of a patent that the specification shall 
 particularly describe and ascertain the invention, and, therefore, 
 in a patent for an improved arrangement, or a new combination of 
 machinery, the specification must describe the improvement and 
 define the novelty otherwise and in a more specific form than by 
 the general description of the entire machine ; it must assign the 
 differentia of the new combination, and if a specification is in- 
 sufficient in this respect, the Court will dismiss a biU for an injunc- 
 tion (4). But it is clear that if the claim is for a combination of 
 particular parts of a machine (and the claim of a new combination 
 or arra,ngement of parts of a machine is the subject of a good 
 patent), and for that only, the differentia is sufficiently assigned. 
 If there is a patent for a combination, the combination itself is, ex 
 necessitate, the novelty (5). But the specification of an invention 
 which consists in the use of known materials in new proportions, 
 is not necessarily bad for uncertainty, though the patentee does not 
 limit himself to the proportions recommended ; however, the evi- 
 dence of persons acquainted with the usual modes of manufacture 
 
 (1) Plimpton V Malcolmson, L. E. (3) Renard v. Levinstein, 10 L. T. 
 3 Ch. D. 531. (N. S.) 177. 
 
 (2) Parhes v. Stevens, 38 L. J. (Ch.) (4) Foxwell v. Bostock, i De G. J. 
 627 ; L. E. 8 Bq. 358 ; 17 W. E. 846. & S. 298 ; 12 W. E, 723. 
 
 (5) Harrison v. The Anderston Foundry Co., L. E. 1 App. Cas. 574, 578. 
 
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PATENTS. 149 
 
 is necessary to determine whether the invention is stated with Part II. 
 sufficient precision (1). A working caution, direction, or instruc- seot. i. 
 tion, as to the mode of conducting a process previously known, 
 although of the greatest possible value and utility, cannot be the 
 subject of a patent, and tbe infringement of it will not be re- 
 strained (2). Patents are not prima facie good, for the rule — (that 
 is to say the general rule) (3) — is that where patents have been re- 
 cently granted no injunction will issue until the right is established, 
 but jt may be different where a patent is of ten or a dozen years 
 standing, therefore a defendant whose patent is not so old, will be 
 restrained from issuing circulars which have the effect of intimi- 
 dating the public, and thereby destroying the trade of another 
 person in a similar article, the defendant must either establish 
 his patent or cease to issue the circulars (4). If two parties are 
 strangers to each other, not connected in business, one being a 
 patentee, that party is not at liberty to go on threatening pro- 
 ceedings against the other party for infringing his patent, un- 
 less he follows up those threats by proceedings to establish its 
 validity (5). 
 
 6. There is no doubt whatever that a man who acquires a 
 license to use a patent cannot dispute its validity, as between him- 
 self and the patentee, during the currency of the license, just in 
 the same way as a tenant is estopped from disputing the title of 
 his landlord during the currency of his tenancy. But at the ex- 
 piration of the' license, he is as much at liberty to dispute it, as if 
 he had never had a license at all, just as a landlord's title may 
 be disputed by a tenant after the tenancy has expired (6). 
 
 7. A licensee is, during the continuance of the license, es- 
 topped from disputing the validity of the licensor's patent ; and 
 the only way in which the licensee can do so, is by putting an end 
 to the agreement to take a license, and this he must do at his 
 
 (1) Patent Typefounding Go. v. (4) Eollins v. Hinks, L. R. 13 Bq. 
 Richard, So"!!. 2,9,1. 355, 361; 41 L. J. (Ch.) 358; 20 
 
 (2) Patterson v. Gas Light and W. E. 287 ; 26 L. T. (N. S.) 56. 
 Cohe Co., L. R. 2 Ch. D. 812, 835 ; 35 (5) Axmann v. Limd, L. E. 18 Bq. 
 L. T. 11. 330, 335 ; 43 L. J. (Ch.) 655 ; 22 W. E. 
 
 (3) Glark v. Fergusson, 1 Giff. 184; 789; 31 L. T. (N. S.) 119. 
 Gardner v. Broadbent, 2 Jur. (N. S.) (6) lb. 337. 
 
 1041. 
 
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150 , PATENTS. 
 
 Pabt II. peril (1). The fact of a patent having been found invalid at Law/ 
 Sect. 1. ' upon proceedings between the patentee and third parties, is no 
 answer to a suit, based upon the same patent, for an injunction and 
 consequent relief against a licensee who has covenanted to pay 
 royalties, and is selling the invention, contrary to his covenant, 
 without payment of the royalties (2). A patentee who has granted 
 a right or license to use his patent, cannot contravene that right, 
 and will be restrained from doing any act in derogation of the 
 grant to the licensee, for instance, from publishing circulars or 
 advertisements calculated to lead persons to believe, that the 
 licensee was not authorized to make or sell the patented article (3). 
 In order to effect an estoppel, arising upon a judgment at Law, 
 for infringement of a patent, it is necessary that it should appear 
 on the record that the question as to the validity of the patent 
 was put in issue, and in any case, defendants in Equity, who 
 were not made parties to the action at Law, cannot be estopped 
 or prevented from setting up as a defence the invalidity of the 
 patent (4). 
 
 8. Upon the invasion of a patent right, the party complaining 
 has a right to the protection of an injunction, although the other 
 party may promise to commit no further infringement (5). But a 
 patentee cannot maintain a suit in Equity against a retail dealer 
 who innocently sells articles which are an infringement of Ms 
 patent, provided such retail dealer gives full information as to 
 the persons from whom he obtained the articles complained of, 
 and promises not to retail any more (6). 
 
 9. The right to a decree in Equity for an account of the profits 
 made by the manufacture and use of articles, in the infringement 
 of a patent, is incident to the right to an injunction to restrain 
 future infringements, and where no case is made for the injunction, 
 
 (1) Orosdeyv.Dixon, 10 H. L.C. 293 ; 714 ; vide Baird v. NeUson, 8 C1.& F. 
 9 Jur. (N. S.) 607 ; 32 L. J. (Ch.) 617 ; 726. 
 
 11 W. E. 716; 8 L. T. (N. S.) 260; (3) ClarTc v. Adie, 21 W. E. 466, 
 
 et vide Bowman v. Taylor, 2 A. & E. 764. 
 
 278; Baird v. Neilson, 8 CI. & P. (4) Govdier v. Clayton, 11 Jnr. 
 
 726 ; Lawes v. Purcer, 6 E. & B. 930 ; (N. S.) 107. 
 
 Hall V. Condor, 2 C. B. (N. S.) 22 ; (5) Geary v. Norton, 1 De G. & 
 
 Noton V. Brooks, 7 H. & N. 499. Sm. 9. 
 
 (2) G7-over and Baker Sewing Ma- (6) Betts v. Wilmot, 18 W. B. MS. 
 cliine Co. v. Millard, 8 Jur. (N. S.) 
 
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PATENTS. 151 
 
 the account will not be decreed (1) ; and this rule in patent cases, Part II. 
 that a Court of Equity cannot decree an account unless it can seot. l. 
 grant an injunction, applies, notwithstanding it may appear at the " 
 
 hearing that since an interim injunction was moved for, the de- 
 fendant had sold articles which, had the facts and law been, on 
 the application for the interim injunction, sufficiently ascertained, 
 the Court would have restrained him from selling (2). A decree 
 for an inquiry as to damages, and also an account of profits, is 
 incorrect, as the two things are hardly reconcilable, for if you 
 take an account of profits you condone the infringement, and the 
 plaintiff must elect between the two, which he will adopt (3). A 
 delay of nine years after the acts complained of have been done, 
 will not be excused by the pendency of an action for damages 
 for infringing a patent against other parties, though ^lot de- 
 cided in the plaintiff's favour until three years after the patent 
 had expired; such a delay is fatal to the plaintiff's bill for an 
 account and an injunction (4). Notwithstanding a cause comes to 
 a hearing after the expiration of a patent, the Court ca,n direct 
 an account, but it must be in a case where there is no doubt as to 
 its validity (5) ; for though before the hearing of a cause, the 
 patent expire, yet if the infringement is proved, notwithstanding 
 the rule — no injunction, no account — the jurisdiction of the Court 
 relates back to the time of the filing of the bill, and the Court 
 will award damages (6) ; and in directing an inquiry as to what 
 damage the plaintiff has sustained, the inquiry will be in the form, 
 " what damage the plaintiff has sustained," and not " what damage, 
 if any," he has sustained, as it would be in the case of a trade 
 mark ; there is this difference between the case of a trade mark 
 and that of a patent, that in the former case the article sold is 
 open to the whole world to manufacture, and the only right the 
 plaintiff seeks is that of being able to say, " Don't sell any goods 
 
 (1) Smith V. London and South (4) Smith v. London and South 
 Western Railw. Co., 1 Kay, 408 ; 23 Western Bailw. Co., 1 Kay, 408 ; 23 
 L. J. (Ch.) 562. L. J. (Ch.) 562. 
 
 (2) Price's Patent Candle Co. v. (5) Fox v. Bellestable, Fox v. Jones, 
 Banwen's Patent Candle Co., 4 K. & 15 W. B. 194. 
 
 J. 727. (6) Davenport v. Bylands, L. E. 
 
 (3) Neilson v. Betts, L. E. 5 H. L. 1, 1 Eq. 302 ; 35 L. J. (N. S!) 204 ; 14 
 22 ; 40 L. j. (Ch.) 317 ; 19 W. E. 1121. W. E. 243. 
 
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152 PATENTS. 
 
 Pabt II. under my mark." He may find his customers fall off in conse- 
 "sect."!. quence of the defendant's manufacture, but it does not neces- 
 " sarily follow that the plaintiff can claim damages for every 
 
 article manufactured by the defendant, even though it be under 
 that mark ; on the other hand, every sale without license of a 
 patented article must be a damage to the patentee ; and the 
 inquiry must extend to the sale by a defendant of any articles 
 manufactured by him within six years before the filing of the bill, 
 and up to the expiry of the patent (1). Courts of Equity will not 
 entertain a patent suit where the bill is filed so shortly befpre the 
 expiration of the patent, that it is impossible for the plaintiff to 
 obtain any relief except damages, such a case being one in which, 
 for all practical purposes, the patent has expired before the bill is 
 filed, one in which it is impossible that the plaintiff can obtain 
 any equitable relief whatever ; where there cannot possibly be 
 time to get an injunction, and the plaintiff can only obtain 
 damages, which are properly sought by an action for damages (2). 
 And if a patent has expired, and the infringement is innocent, 
 accidental, and trivial, and not such as to have produced any 
 substantial damage to the plaintiff, his bill for an injunction 
 will be dismissed (3). Where bills in Equity to restrain the in- 
 fringement of a patent have been filed against both the person 
 who manufactures, and the person who uses the article, and issues 
 of fact have been found for the plaintiff, it is the right of the 
 plaintiff to have not only an account against the manufacturer, 
 but also damages against the person using the article, wherever it 
 may be found (4). 
 
 10. Where the issues directed to be tried in a suit to restrain 
 an infringement of a patent, have all been found in favour of the 
 patentee, the circumstance that appeals to the House of Lords have 
 been lodged, will not be allowed to interfere with his right to an 
 immediate decree and final order for an injunction (5). 
 
 (1) Davenport v. Rylands, L. E. Penn v. Fernie, L. R. 3 Eq. 308 ; 36 
 1 Eq. 302; 35 L. J. (Ch.) 204; 14 L. J. Ch.) 277. 
 
 W. B. 243. (5) Penn v. Bibby, L. E. 3 Eq. 
 
 (2) Bettsv. GaOais, 18 W.^. 94:5. 308; 36 L. J. (Ch.) 277; li. and 
 
 (3) BetU V. WillmoU, 18 W. E. Penn v. Jack and Penn v. Fernie, 15 
 946. W. E. 192. 
 
 (4) Ptnn V. Bihhy, Penn. v. Jack, 
 
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COPYEIGHT. 153 
 
 Sect, 2. Copyright. Paht ii. 
 
 Chapteb II. 
 
 1. There is no remedy in Equity for a party who complains of 
 a piracy of his, work, unless he can make out that he is entitled to 
 the equitable interposition of a Court of Equity ; if he can, the 
 right to an account will follow, that his remedy in Equity may be 
 ojmplete (1). 
 
 2. When a Court of Equity is satisfied that a piratical imitation 
 has been made by a defendant, a plaintiff will not be put to the 
 terms of trying his title at Law, although the defendant cannot 
 take any steps to bring the fact to an issue before a jury (2). In 
 cases of contested copyright, the Court is disposed rather to 
 restrict than increase the number of cases in which it interferes 
 by injunction before the establishment of the legal title; and 
 it will give great weight to the consideration of the questions, 
 which side is more likely to suffer by an erroneous or hasty 
 judgment, ^nd the prejudicial effect the injunction may have 
 on the trial of the legal title (3). 
 
 3. If there be a doubt in a minor degree as to the fact of there 
 being any copyright, the Court, although it will grant an injunc- 
 tion, will require the plaintiff to prove his alleged copyright (4) ; 
 and the Court has jurisdiction to direct admissions in an action 
 brought by the direction of the Court (5) ; or it will put the 
 plaintiff upon an undertaking to try his right at Law, although it 
 has granted an injunction restraining the alleged piracy (6). But 
 if the question of the right to the copyright claimed is too 
 doubtful, the Court will not interfere by injunction until that 
 question has been decided (7). 
 
 4. If the owner of a copyright has, for some time previously to 
 the application, acquiesced in different individuals transcribing 
 portions of his work, the Court will not interpose in his favour by 
 
 (1) Baily V. Tatjlor, 1 Euss. & My. 209 ; 14 Jur. 1088 ; 20 L. J. (Ch.) 165 ; 
 73 ; Taml. 295. Ohappel v. Davidson, 2 K. & J. 123. 
 
 (2) Ohappell v. Davidson, 2 K. & J. (5) Dickens v. Lee, supra. 
 
 123. (6) Sweet v. Cater, 11 Sim. 572 ; 
 
 (3) M'Niell V. Williams, 11 Jur. 5 Jur. 68. 
 
 344. (7) Chappel v. Purdatj, 4 Y. & C. 
 
 (4) Dickens v. Lee, 7 Jur. 183 ; et 485. 
 vide Olhndorf v. Black, 4 Do G. & Sm. 
 
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154 COPYRIGHT. 
 
 Part h. injunction against other parties who have subsequently tran- 
 Sect. 2. scribed portions from the same work, until the owner of the 
 "~ copyright has established his legal right (1). For if the conduct 
 
 of a plaintiff has been such as, in the opinion of the Court, 
 was calculated to induce the defendants to believe that the 
 course taken by them would not be objected to by the plaintiff, 
 the Court wiU refuse an injunction to restrain an alleged in- 
 fringement of a copyright before a trial of the legal right (2). 
 If the matter which is the subject of the alleged piracy forms 
 but a very inconsiderable part of the plaintiff's work, and the 
 work complained of has been published some years, the Court 
 will not grant an injunction, but will leave the -plaintiff to seek 
 his legal remedy (3). 
 
 5. A Court of Equity will not make a decree for an injunction 
 or an account of the profits of works of such a nature that the 
 author could maintain no action at Law, but which the policy 
 of the law will not permit him to consider his property; if no 
 action at Law will lie, the Court ought not to give an account 
 of the unhallowed profits of libellous publications (4). 
 
 6. When it can be traced that another work upon the same 
 subject is not an original compilation, but a mere copy with 
 colourable vai-iations, the original will be protected by injunction, 
 which, in a clear case of piracy, will be continued imtil the hearing, 
 without a preliminary trial of the legal right (5). If the right to 
 an injunction against the infringement of a copyright depends on 
 the effect of an agreement, the Court will refuse an injunction 
 until it is determined whether an action will lie on the agree- 
 ment (6). But the Court will not send a case to Law which 
 is not a proper one to be determined by a jury, as where the 
 absurdity would arise of the necessity of a Judge to sit and hear 
 two books read over, where one book is only a copy of the 
 
 (1) Saunders v. Smith, 3 My. & Or. (4) Walcot v. Walker, '7 Ves. 1 ; 
 
 711 ; vide Piatt v. Button, 19 Ves. vide Lawrence v. Smith, Jac. 471 ; 
 
 447. Murray v. Benhow, lb. 474, n. ; i 
 
 (2) Saunders v. Smith, 3 My. & Or. v. Sherwood, 2 Mer. 435. 
 
 711; 7L. J. (N. S.)(Cli.)227; 2 Jur. {S) Matthewson v. Stockdale, 12 
 
 494, 536. > Ves. 270. 
 
 (3) Baily v. Taylor, 1 Buss. & My. (6) Walcot v. Walker, 7 Ves. 1. 
 73; Taml.,295. 
 
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COPYEIGHT. 155 
 
 other (1). ' But where there is a fair doubt whether the law would Part II. 
 give damages for the piracy of a work, a Court of Equity will no* Seot. 2. 
 maintain an injunction granted ex parte, but will leave the plaintiff 
 to establish 'his legal right before it interferes in his behalf (2). 
 So if there be a doubt as to the right of the plaintiff to the copy- 
 right (3). 
 
 7. But all these cases depend upon their own circumstances, 
 and all the Court can do is to lay down the principles upon which 
 it acts, in order that parties may know what measure of relief 
 they have to expect in any particular case ; and unless a case 
 of this kind, depending upon a legal right, is very clear, it is the 
 duty of the Court to take care that the right be ascertained before 
 it exercises its jurisdiction by injunction ; and the first question to 
 be determined is as to the legal right ; if the Court doubts about 
 that, it may commit great injustice by interfering until that 
 question has been decided; and it is much better, if the legal 
 right is to be litigated, that the Court should abstain from 
 expressing any opinion upon it in the meantime ; but the greatest 
 of all objections is, that the Court runs the risk of doing the 
 greatest injustice, in case its opinion on the legal right turns out 
 to be erroneous. If the plaintiff is right, the Court has some 
 means, at least, of indemnifying him, by making the defendant 
 keep an account ; but if the defendant is right, and he is restrained, 
 it is utterly impossible to give him compensation for the loss 
 he would have sustained ; and the effect of the order, in that event, 
 would be to commit a great and irremediable injury; unless, 
 therefore, the Court is quite clear as to what are the legal 
 rights of the parties, it is much the safest course to abstain 
 from exercising its jurisdiction till the legal right has been 
 determined (4). 
 
 8. If it is impossible for the Court to obtain from a defendant 
 any information as to the qua/ntwn, of his piracy, but the Court 
 is satisfied that in certain chapters of the defendant's work there 
 
 (1) Oyles V. Wilcox, 2 Atk. 143; L- J- (Oh.) 239; vide Martin v. 
 Anon., Lofft. E. 775 ; vide Jeffery v. Wright, 6 Sim. 297. 
 
 Bowles, Dick. 429 ; Goiman v. Bowles, (3) Lowndes v. Duncornbe, 1 L. J. 
 
 2 Bro. CO. 80; v . Leadbetter, (Oh.) 51. 
 
 4 Ves. 681. (4) Spottiswoode v. Clarke, 2 Ph. 
 
 (2) Bijron {Lord) v. Dugdale, 1 154. ; 1 Coop. 0. 0. 254. 
 
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156 COPYEIGHT. 
 
 Past II. ^^^ been an improper use of the plaintiiFs book ; it will restrain 
 "^"sect™"' *^® publication of such chapters only, but not of the entire work, 
 
 with a direction to the plaintiff to bring an action forthwith, and 
 
 the defendant to keep an account in the meantime (1). 
 
 9. In a suit to restrain the piracy of a literary work, a plaintiff 
 who, in opposition to the defendant's denial of his title, has 
 obtained an injunction, is — in case by arrangement between the 
 parties the title is not established at Law — entitled to an answer 
 from the defendant for the purpose of having his title admitted, 
 and also for the purpose of having an account from the defendant 
 of the profits made by the sale of the spurious work (2). It is no 
 defence to say that a pirated work is not offered for sale itself, 
 but merely used to promote the sale of works mentioned in it (3). 
 
 10. There may be a fair use of other works of the same kind, 
 but it is of vital importance that the new work shall have no mere 
 copying, no merely colourable alterations, no blind repetition 
 of errors (4). And it is of great importance, as evidence of lona 
 fides, that the original manuscript should be produced (5). If it is 
 seen that a defendant has exercised great pains and labour on his 
 subject, for instance, a dictionary, he may copy a great deal from 
 a plaintiff's work of the same kind, yet if the judge be convinced 
 that the defendant has honestly exercised his mind upon his work, 
 the Court will decide in his favour (6). So one person may 
 originate a work in the same general form as that of another work 
 of the same kind by another person, already published, provided 
 he does so from his own resources, and makes the work he so 
 originates, a work of his own by his own labour and industry 
 bestowed upon it (7). And in determining whether an injunction 
 should be ordered, the question, where the matter of the plaintiff's 
 work is not original, is, how far an unfair or undue use has been 
 made of the work (8). If, instead of searching into the common 
 
 (1) Jarrold v. Houlston, 3 K. & J. (4) EoUen v. Arthur, supra. 
 
 708 ; 3 Jur. (N. S.) 1051. (5) Eotten^. Arthur, supra; Spiers 
 
 (2) Kelly v. Hooper, 1 Y. & C Ch. v. Brown, 6 W. E. 352. 
 
 197. (6) Hotten v. Arthur, Spiers v. 
 
 (3) Hotten v. Arthur, 1 H. & M. Brown, supra. 
 
 603 ; 32 L. J. (Ch.) 771 ; Butterworth (7) Ja/rrdld v. Houston, 3 K. & J. 
 V. Robinson, 5 Ves. 709 ; Bell v. 708 ; 3 Jur. (N. S.) 1051. 
 Walker, 1 Bro. C. C. 451. (8) lb. 
 
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COPYRIGHT. 157 
 
 sources and obtaining your subject from thence, you avail yourself Pabt II. 
 
 of the labour of your predecessor, adopt (for instance, in a work seot. 2. 
 
 consisting of questions and answers) his arrangement and questions, 
 
 or adopt them with a colourable variation, it is an illegitimate use 
 
 of another man's work ; and falsely to deny that you have copied 
 
 or taken any idea or language from any other work is a strong 
 
 indication of animus fwanAi (1). Where two authors treat of the 
 
 same subject, each being merely a compiler from various original 
 
 works, it is a fair use of the work of one of them, if the other 
 
 examine it for the purpose of seeing what works unprotected 
 
 by copyright were referred to by that one, and the other or latter 
 
 author may then himseK refer to such unprotected works, and 
 
 take from them whatever may be suggested by the book of the 
 
 former author ; and it is also a legitimate use of the work of the 
 
 former one, if the latter, after having by his own labour brought 
 
 his own work into shape, refer to the work of the former to supply 
 
 omissions, but it is a piratical use of the work of the former, if the 
 
 latter take the matter therein borrowed from authorities open to 
 
 all the world, in order to save his labour and expense of consulting 
 
 the original work (2). 
 
 11. A person may, by publishing a reprint of a work of which 
 the copyright has expired, with notes and illustrations from other 
 works, create a new copyright, which will be protected from 
 piracy, and it is a piratical use of such copyright work to borrow 
 therefrom any considerable number of the illustrations (3). 
 
 12. The question of the extent of appropriation which is ne- 
 cessary to establish an infringement of copyright is often one 
 
 , of extreme difficulty, but in cases of one description, namely, 
 the publishing of plays dramatised from novels, the quality of the 
 piracy is more important than the proportion which the borrowed 
 passages may bear to the whole work ; but, in such cases, it is 
 enough if the defendant admits that one-fourth of the dramas is 
 composed of matter taken from the novels (4). Though the 
 matter pirated form an exceedingly small portion of a plaintiff's 
 
 (1) Jarrold v. Eoulston, 3 K. & J. sion Cases, 3rd Series, 341. 
 
 708 ; 3 Jur. (N. S.) 1051. (4) Tinaley v. Lacy, 1 H. & M. 747 ; 
 
 (2) lb. 32 L. J. (Ch.) 535. 
 
 (3) Blach V. Murray, 9 Scotch Ses- 
 
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158 COPYRIGHT. 
 
 Pabt il work, yet where that matter bears a great proportion to the other 
 Sect. 2. matter in the defendant's work, the Court will restrain the sale of 
 the work (1). 
 
 13. Where some only of the parts of a work alleged to be 
 piratical, but forming a considerable portion of a publication, 
 have been shewn to be pirated, and they are such as to justify the 
 presumption that the general character of the work is piratical, 
 the Court will restrain the publication of any copy of the work 
 containing the pirated portions, without waiting till all the parts 
 pirated can be ascertained (2). 
 
 14. Equity will restrain a colourable imitation of the title of 
 a copyright work by an alteration thereof, such alteration is an 
 infringement of the copyright in the title of the work (3). 
 
 15. The question of minuteness in value of the original matter 
 extracted from a work for purposes of criticism, will have great 
 weight with the Court in influencing its decision on an application 
 for an injunction (4). And the Court is adverse to applications 
 for injunctions to restrain the infringement of copyright, where it 
 is difficult, if not impossible, to take an account of the loss 
 complained of (5). So where the matter which is the subject of 
 the alleged piracy forms but a very inconsiderable part of the 
 plaintiff's work, and contains mere calculations, and the work 
 complained of has been published some years, the Court will not 
 grant an injunction, but leave the plaintiff to seek his legal 
 remedy (6). It is not only the quantity but the quality of the 
 matter extracted by a defendant from the work of which the 
 plaintiff has the copyright, that is to be considered in an application 
 to the Court for its interposition by injunction (7). And the 
 question, whether one author has made a piratical use of another's 
 work, does not necessarily depend upon the quantity of that work 
 which he has quoted or introduced into his own book (8). 
 
 16. A fraudulent intention in infringing copyright is not ne- 
 
 (1) Kelly V. Hooper, 4 Jur. 2. (6) Baily v. Taylor, 1 Euss. & My. 
 
 (2) Lewis V. FuUarton, 2 Beav. 6. 73 ; Taml. 295. 
 
 (3) MacJc V. Fetter, L. E. 14 Bq. (7) Saunders v. Smith, 3 My. & Or. 
 431 ; 41 L. J. (Ch.) 781 ; 20 W. E. 964. 711. 
 
 (4) Bell V. Whitehead, 8 L. J. (8) Bramwdl v. Halcomb, 3 My. & 
 (N. S.) (Oh.) 141 ; 3 Jur. 68. Or. 737, 736. 
 
 (5) lb. 
 
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COPYRIGHT. 159. 
 
 cessary to entitle the proprietor of the copyright to relief, if Paht li. 
 his right of property has been invaded (1) j nor will a full acknow- SEm^2. 
 ledgment of the original, and the absence of any dishonest 'intent, " 
 excuse the appropriator where the effect of his appropriation is, 
 of necessity, to injure and supersede the sale of the original 
 work (2), And a rival publisher is not less liable to an injunction 
 for piracy, because he makes inquiries on bis own behalf to 
 ascertain the correctness of what he copies (3). 
 
 17. If the Court is led to the conclusion that there has been 
 piracy, it will not grudge any labour that may be requisite in 
 order to ascertain how far an injunction should extend (4). 
 
 18. In a suit to restrain the piracy of a literary work, the 
 plaintiff is entitled to a discovery, notwithstanding the defendant 
 offers to submit to an injunction (5). A plaintiff has a right 
 to a full and particular discovery as to the original sources from 
 which a defendant alleges that he drew his work (6) 
 
 19. Delay in making the application will disentitle a plaintiff 
 to an injunction to restrain the piracy of a publication. It is the 
 duty of the Court in some circumstances — for instance, where the 
 plaintiff has had a copy of the defendant's work a year before his 
 bill was filed — to impute to the plaintiff such a knowledge of the 
 contents of the defendant's work as made it his duty to apply for 
 an injunclJion, if at all, at a much earlier period (7). Still, mere 
 delay in taking proceedings in respect of a first edition of a work, 
 where the piracy had not been discovered, will not amount to an 
 acquiescence in the publication of a second edition of the work, so 
 as to bring it within the 26th section of the Copyright Act 
 (5 & 6 Vict. c. 45), prohibiting proceedings unless taken within 
 twelve months from the publication of the work (8). The onus to 
 shew laches is on a defendant (9), 
 
 (1) Clement v. Maddich, 1 Giff. 98 ; (6) Kelly v. Wyman, 17 W. E. 399. 
 5 Jur. (N. S.) 592. (7) Lewis v. Chapman, 3 Beav. 133. 
 
 (2) Scott V. Stanford, L. E. 3 Bq. 718. (8) Eogg v. Scott, L. E. 18 Eq. 444 ; 
 IS) Morris Y. Ashhee, 19 L. T. 22 W. E. 640 ; 43 L. J. (Ch.) 705 ; 31 
 
 (N. S.) 550 ; L. E. 7 Eq. 34. L. T. (N. S.) 73, 163. 
 
 (4) Jarrold v. Eoulston, 3 K. & J. (9) Chappdl v. Davidson, 2 K. & 
 708 ; 3 Jur. (N. S.) 1051. J. 123 ; vide Buxton v. Jamies, 5 De 
 
 (5) Stevens v. Brett, 10 L. T. G. & Sm. 80 ; 16 Jur. 15. 
 (N. S.) 231. 
 
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160 COPYRiaHT. 
 
 Paht ir. 20. The purchase of the copyright for a given period carries 
 
 Sect. 2. with it the right of printing and publishing, and the purchaser 
 of the'copyright for a given period is entitled to continue selling 
 after the expiration of the period the stock printed by him under 
 his purchase, and no injunction will be granted to restrain him 
 from so doing (1). The Copyright Acts (8 Anne, c. 19, and 
 5 & 6 Vict. c. 45), are directed against unlawful printing, and 
 when a party has acquired the right of lawfully printing a work, 
 he is at liberty to sell, at any time, what he has so printed (2). 
 Though a nice question might arise as to the number of copies of 
 which an edition should consist (3). 
 
 21. The registered owner of a copyright in a work is, under the 
 23rd section of the 5 & 6 Vict. c. 45, entitled to have all the 
 unsold copies of a piratical edition delivered up to him, for his 
 own use, but to recover them he must proceed at Law. But as to 
 the copies of such pirated edition which have been sold, he is not 
 entitled in Equity to possess the gross produce of the sale thereof, 
 but only to the net profits which the party may have made by the 
 sale thereof (4). He has no right, in a Court of Equity, to an 
 account of the gross proceeds (5), 
 
 22. The principles upon which a Court of Equity gives an 
 account of the profits of an unlawful work in the case of piracy 
 are these : it is true 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 the 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 
 wrongdoer all the profits he has made by his piracy, and gives 
 them to the party who has been wronged; in doing this the 
 Court may often give the injured party more, in fact, than he 
 is entitled to, for non constat that a single additional copy of 
 the more expensive book would have been sold, if the injury 
 by the sale of the cheaper book had not been committed ; but a 
 
 (1) Eowitt v. Hall, 10 W. K. 381. (4) Delf v. Ddamatte, 3 K. & J. 
 
 (2) lb. 581 ; 3 Jur. (N. S.) 933. 
 
 (3) lb. (5) lb. 
 
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COPYRIGHT. 161 
 
 Court of Equity, however, does not give anything beyond the Part ii. 
 account (1). _ _ _ ^"s^a"" 
 
 23. In estimating damages in cases of literary piracy, the ~ 
 defendant must account for every copy sold, as if it had been 
 the plaintiff's, and pay the profit upon those copies to the 
 plaintiff (2). If a plaintiff shew that his copyright has been 
 infringed, the Court will grant an injunction without proof of 
 actual damage (3), 
 
 24. Without determining the extent to which the owners of the 
 copyright in a journal are justified in interfering with the editor 
 in his editorial capacity, where the remuneration of the editor 
 depends upon the success of the journal, the Court wiU not restrain 
 the proprietors from altering articles proposed to be inserted 
 by the editor, or inserting others contrary to his wish ; it is the 
 province of a jury to determine the amount of damage, if any, 
 which the editor may have sustained by reason of the conduct of 
 the proprietors (4). In case of a violation of the copyright of an 
 author by inserting in a work portions of the author's copyright 
 work, a Court of Equity will restrain the publication of such 
 portions, without proof of damage (5), When the infringement 
 complained of consists in copying a collection of facts which are 
 easily obtained, the Court will not grant an interlocutory injunc- 
 tion, which would be useless, but will wait till the hearing, and 
 then, if necessary, direct a reference as to damages (6). 
 
 25. The Court will restrain a party who has assigned his 
 copyright in a publication and interest therein, for value, and 
 has covenanted with the purchaser not to publish, either alone 
 or in partnership with any other person, any publication of a 
 similar nature, from violating his covenant (7) ; but the pur- 
 chaser will be put upon terms to abide by any order the Court 
 
 (1) Colburn v. Simms, 2 Hare, 543 ; (5) Campbell v. Scott, 11 Sim. 31 ; 
 12 L. J. (Ch.) 388; 7 Jur. 1104. 11 L. J. (N. S.) (Ch.) 166; 6 Jur. 
 
 (2) Pike V. Nicholas, 38 L. J. (Ch.) 186. 
 
 529; L. E. 5 Ch. 260, n.; 20 L. T. (6) Cox v. Land and Water Journal 
 
 (N. S.) 906 ; 17 W. E. 842. Co., 18 W. E. 206 ; 21 L. T. (N. S.) 
 
 (3) Smith V. Johnson, 33 L. J. (Ch.) 548. 
 
 137 ; 9 Jur. (N. S.) 1223. (7) Jngram v.. Stiff, 5 Jur. (N. S.) 
 
 (4) Crookes v. Fetter, 6 Jur. (N. S.) 947 ; 33 L. T. (N. S.) 195. 
 1131. 
 
 M 
 
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162 COPYRIGHT. 
 
 Pakt II. may make as to damages, and to bring an action against the 
 Chapter II. , „ , , /-.x 
 Sect. 2. deiendant (1). 
 
 26. If an author sells the copyright of a work published under 
 his ovvn name, and covenants with the purchaser not to publish 
 any other work to prejudice its sale, another publisher who has 
 notice of this covenant, will be restrained from publishing a work 
 subsequently purchased by him from the same author, and pub- 
 lished under his name, on the same subject, but under a different 
 title, and though there be no piracy of the first work. And it 
 would appear that if a covenantor and his partner were to publish 
 a rival work on the same subject, the partner would be restrained 
 as well as the covenantor (2). 
 
 27. But if a covenantor having entered into such a covenant 
 with one person, were to sell the materials of a rival work to 
 another person, who should conclude his agreement and pay 
 his money without any notice of the covenant, it would appear 
 that an injunction, on the ground of that covenant, could not 
 maintained against that other person (3). 
 
 28. A party violating the copyright of a publication cannot 
 escape his liability to an injunction to restrain an infringement, by 
 cautioning his shopmen to explain to purchasers that his publica-i 
 tion is not the same as that of the party whose copyright he is 
 infringing, because he cannot secure that the retail dealers pur- 
 chasing from him will give the same information to their cus- 
 tomers (4). 
 
 29. The copying into a newspaper whole articles taken from 
 another periodical — as a monthly magazine — professedly for the 
 purpose of reviewing, is an unlawful use for reviewing, and a 
 Court of Equity will restrain the publication of the work contain- 
 ing those articles, notwithstanding an allegation that it is the 
 custom of the trade (5). 
 
 30. A Court of Equity, where justice requires it, will grant an 
 injunction to restrain a piracy on the application of a person 
 
 (1) Ingram v. Stiff, 5 Jur. (N. S.) (3) lb. 
 
 947 ; 33 L. T. (N. S.) 195. (4) Chappel v. Davidson, 2 K. & J. 
 
 (2) Barjkld v. Bicholson, 2 S. & S. 123. 
 
 1 ; 2 L. J. (Ch.) 90; S. C. sub. now,. (5) Maxwell v. Somertm, 22 W. B- 
 
 Sarfield v. Kdly, iEuss. 356. 313 ; 30 L. T. (N. S.) 11. 
 
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COPYRIGHT IN DESIGNS. 163 
 
 having only an equitable title (1). And such a Court will disre- Paet ii. 
 gard a permission from the author to infringe a copyright, given ^'se™2.^^' 
 
 after he has parted with his equitable title for valuable considera- 
 
 lion, and it has appeared upon the title-page of his work, that it 
 was printed for the equitable assignee of the copyright (2). And 
 the Court will interfere to protect copyright from piracy at the 
 suit of a plaintiff who appears to have a good equitable title, evea 
 though it should not be quite clear that his legal title is com- 
 plete (3). So it wUl protect a copyright which has been sold by 
 the author, and afterwards assigned by writing to the plaintiff, 
 although it may not appear whether the original assignment was 
 in writing (4). 
 
 31. An injunction granted against a work which is published in 
 successive numbers, on the ground of piracy in the published 
 numbers, 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 (5). 
 
 32. Penalties and forfeitures must be waived by a party seeking 
 relief in Equity in respect of a violation of his rights under the 
 Copyright Acts (6). 
 
 Sect. 3. Copyright in Designs, 
 
 1. A Court of Equity will, in a case within the Copyright of 
 Designs Acts, 5 & 6 Vict. c. 100, and the 6 & 7 Vict. c. 65, order 
 the delivery up to the plaintiff, for the purpose of being destroyed, 
 of the drawings and things used by a defendant in applying a plain- 
 tiffs design, and also the articles manufactured by the defendant 
 to which the plaintiffs design has been applied ; and it will grant 
 an injunction restraining a defendant generally, who has manu- 
 factured with the plaintiff's pattern, although he does not intend 
 
 (1) Ohappell V. Purday, 4 Y. & C. and Kyle v. Jeffreys, 3 Macq. H. L. 
 
 485. Cas. 611 ; Jeffreys v. Boosey, 4 H. L. 
 
 , (2) Hodges v. Welsh, 2 Ir. Eq. Rep. C. 815). 
 
 266. (5) Barfield v. Nicliolson, 2 S. & S. 
 
 (3) Mawman v. Tegg, 2 Russ. 385. 1 ; 2 L. J. (Ch.) 90. 
 
 (4) Morris v. Kelly, 1 Jac. & W. (6) Colburn v. Simms, 2 Hare, 554 ; 
 481 (as to the assignment of a copy- Mason v. Murray, cited 3 Bro. C. C. 
 right, see 5 & 6 Vict. c. 45, ss. 13, 15, 40. 
 
 M 2 
 
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164 TRADE MAllKS. 
 
 Part II. to use the same for sale until after the expiration of the* plaintiff's 
 Sect. 3. term of protection (1). 
 
 ~ 2. Though the difference between a registered design and a de- 
 fendant's alteration be infinitesimal, the defendant shall not escape 
 from what is right and just, and if the patterns designed are used 
 exactly in the same manner and hare the same or nearly the same 
 effect, the Court will restrain the infringement of the copyright in 
 the design (2). But when a sample of a pattern has been regis- 
 tered under 21 & 22 Vict. c. 70, s. 5, the design will not be 
 infringed by an article produced upon the same principle, if 
 different in style (3). 
 
 3. In a suit to restrain an alleged infringement of a copyright 
 in a design registered under the 5 & 6 Vict. c. 100, the defendant 
 does not lose his right to require the plaintiff to establish his legal 
 title, although he delays doing so until the hearing of the cause, 
 and has previously moved to dissolve upon a ground which cannot 
 be maintained. But in such a case the bill will be retained and 
 the injunction continued in the meantime, the plaintiff undertaking 
 to establish his legal title (4). 
 
 Sect. 4. Trade MarJcs. 
 
 1, In granting injunctions to prevent the infringement of trade 
 marks, a Court of Equity ordinarily (5) exercises its jurisdiction 
 in aid of the legal right; i.e., where an action could be main- 
 tained in a Court of Law ; but it does not exercise an independent 
 jurisdiction (6). Such a Court when it interferes in cases of 
 trade marks, is exercising a jurisdiction over legal rights, and 
 although sometimes, in a very strong case, it interferes in the first 
 
 (1) MeSae v. Eoldsworth, 2 De G. (5) Vide Singer Marmfacturing Co. 
 & Sm."497; M'Orae v. Eoldsworth, v. Wilson, L. E. 2 Ch. D. 434, 454 
 12 Jur. 820. Colonial life, &c., Go. v. Bom and 
 
 (2) McSea v. Eoldsworth, L. R. 6 Colonial, &c., Co., 33 Beav. 548 
 Ch. 418 ; 19 W. R. 36 ; 23 L. T. MilUngton v. Fox, 3 My. & Cr. 
 (N. S.) 444. 338. 
 
 (3) Thorn V. Syddal, 26 L. T. (N. S.) (6) Foot v. Lea, 13 Ir. Eq. Bep. 
 15. 484 ; Motley v. Downman, 3 My. & 
 
 (4) Norton v. Nicholas, 4 K. & J. Or. 1. 
 475. 
 
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I TRADE MARKS. 1(35 
 
 instance by injunction, yet, in a general way, it pnts the party Part ii. 
 upon asserting his right by trying it in an action at Law. If it seot. i. 
 does not do that, it permits the plaintiff, notwithstanding the suit " 
 
 in Equity, to bring an action ; and in both cases the Court is only . 
 acting in aid of, and is only ancillary to, the legal right ; and a 
 case can hardly be conceived in which the Court would at once 
 interfere by injunction, and prevent a defendant from disputing 
 the plaintiff's legal title (1). And an injunction to restrain a de- 
 fendant from .using the particular style or title adopted by the 
 plaintiff, will not be granted if the Court entertains the slightest 
 doubt of the plaintiff's right to sustain his title at Law (2). 
 
 2. If a plaintiff coming for an injunction in the case of a trade 
 mark, appears to have been guilty of misrepresentation to the 
 public, a Court of Equity will not interfere in the first instance 
 and give its assistance in aid of a legal right ; and the case will 
 be ordered to stand over, with liberty to bring an action (3). If 
 there be a misrepresentation by a plaintiff as to an article being 
 patent, which in fact is not so, that is so far fraudulent, that — 
 coupled with a lapse of time without taking any steps — the Court 
 will not interfere summarily by an injunction in the first instance 
 to protect the plaintiffs alleged right to the exclusive use of a 
 title or trade mark, but the Court will retain the bill lor a certain 
 period, with liberty to bring an action in the meantime (4). But a 
 collateral misrepresentation that an article is protected by patent 
 is no defence at Law, and the owner of the trade mark is, not- 
 withstanding such a misrepresentation, entitled to the ancillary 
 equitable remedy of an injunction to restrain the piracy (5). So 
 if an alleged fraudulent imitation is not clearly made out, an 
 injunction will only be continued on the terms of the plaintiff 
 bringing an action, and being answerable in damages (6). If an 
 answer, uncontradicted, allege facts which may affect the alleged 
 legal right of the plaintiff to a trade mark, the Court will', at the 
 
 (1) Motley V. JDownman, 3 My. & (4) Flavell y. Earriaon, 10 Hare, 
 
 Cr. 1 ; Foot v. Lea, 13 Ir. Bq. Eep. 467 ; 17 Jur. 368 ; 22 L. J. (Ch.) 886. 
 
 484. (5) Ford v. Foster, L. R. 7 Ch. 611, 
 
 {2) Purcer v. Brain, 17 L. J. 626, 630 ; 48 L. J. (Ch.) 682 ; 27 L. T. 
 
 (N. S.) Ch. 141. (N. S.) 219 ; 20 W. R. 818. 
 
 (3) Perry v. Truefitt, 6 Beav. 66 ; (6) Chappel v. Davidson, 8 De G. 
 
 Pidding v. Eoiu, 8 Sim. 447. M. & Gr. 1. 
 
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166 TEADE MARKS. 
 
 Pabt U. hearing of the cause, only grant an injunction for a limited period, 
 ^"se'o™^.'"' "^^'ith liberty to the plaintiff to bring an action within a certain 
 time, to try his right at Law (1). 
 
 3. If it does not appear that the assumption of a name some- 
 what similar to the plaintiff's name is likely to cause any injury 
 to the plaintiff, the Court will not interfere, but will leave the 
 plaintiff to bring his action at Law (2). 
 
 4. The Court will not grant an injunction unless it is satisfied 
 that there wiU be deception, or that there is a probability or hke- 
 lihood of deception, or that what the defendant does is calculated 
 to deceive (3). 
 
 5. The right which a manufacturer has in his trade mark is the 
 exclusive right to use it for the purpose of indicating where, by 
 whom, or at what manufactory the article to which it is aflSxed 
 was made (4). The principle in oases of trade marks is this : no 
 man has a right to sell his own goods as the goods of another. 
 The same principle may be expressed in a different form, namely, 
 that no man has a right to dress himself in colours, or adopt and 
 bear symbols to which he has no peculiar and exclusive right, and 
 thereby personate another person, for the purpose of inducing the 
 public to suppose, either that he is that other person, or that he is 
 connected with and selling the manufacture of such other person, 
 while he is really selling his own. It is perfectly manifest that to 
 do these things is to commit a fraud, and a very gross fraud. The 
 right which any person may have to the protection of the Court 
 does not depend upon any exclusive right which he may be sup- 
 posed to have to a particular name, or to a particular form of 
 words ; his right is to be protected against fraud, and fraud may 
 be practised against him by means of a name, though the person 
 practising it may have a perfect right to use that name, provided 
 he does not accompany the use of it with such other circumstances 
 as to effect a fraud upon others. It is perfectly manifest that two 
 
 (1) Gollins Co. V. Beeves, 28 L. J. (3) Cope v. Evans, L. R. 18 Eq. 138, 
 (Ch.) 56 ; 4 Jar. (N. S.) 865. ] 51 ; 22 W. R. 453 ; 30 L. T. (N. S.) 
 
 (2) London and Provincial Law 292. 
 
 jlssMran.ee bociety v. London and Pro- (4) Leather Cloth Co. v. American 
 
 vincial Joint Stock Life Insurance Co., Leather Cloth Co., 11 H. L. C. 523. 
 11 Jur. 938. 
 
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TRADE MARKS. 167 
 
 things are required for the accomplishment of a fraud of this Paet ii. 
 character ; iirst, there must be such a general resemblance of the Sect. 4. 
 forms, words, symbols, and accompaniments, as to mislead the 
 public ; secondly, a sufficiently distinctive individuality must be 
 preserved, so as to procure for the person himself the benefit of 
 that deception which the general resemblance was calculated to 
 produce. To have a copy of the thing would not do ; for, though 
 it might, mislead the public in one respect, it would lead them 
 back to the place where they were to get the genuine article, an 
 imitation of which was improperly sought to be sold. For the 
 accomplishment of such a fraud it is necessary in the first instance 
 to mislead the public, and in the next place, to secure a benefit to 
 the party practising the deception by preserving his own indivi- 
 duality (1). The ground on which a Court of Equity protects trade 
 marks is, that it will not permit a party to sell his own goods as the 
 goods of another ; and a party will not, therefore, be allowed to use 
 names, marks, letters, or other indicia by which he may pass off his 
 own goods to purchasers as the manufacture of another person (2). 
 6. Nothing can be better established than this, that a manufac- 
 turer is not entitled to sell his goods under the false representa- 
 tion that they are made by a rival manufacturer. The cases which 
 come before the Courts may be conveniently divided into two 
 classes ; the first and more numerous class consists of cases where 
 the goods manufactured are distinguished by some description or 
 device in some way or other affixed to the article sold ; or, where 
 the goods are not capable of having anything put on the goods 
 themselves, of a mark put on the vessel or covering containing 
 or securing the goods. As to this, the first class, it is quite imma- 
 terial that the maker of the goods to which the trade mark is 
 affixed did not know that it was a trade mark, and had not the 
 slightest intention of defrauding anybody ; he must not put as a 
 mark on goods, even though he intends to establish it as his own 
 trade mark, that which is the known trade mark of other people, 
 and he would be restrained by injunction, though he thought that 
 he himself had invented the trade mark, and hona fide intended it 
 to designate goods of his own manufacture. The reason is obvious, 
 
 (1) Croft V. Day, 7 Beav. 84. 
 
 (2) Perry v. Truefitt, 6 Beav. 66. 
 
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168 TRADE MARKS. 
 
 Patit ir. because the goods pass from hand to hand, and though he may 
 Seot. 4. ' act with the utmost lona fides yet the ultimate purchasers might 
 believe that they were the real goods, that is to say that they were 
 manufactured by the person entitled to the original trade mark. 
 Therefore in that case, knowledge that he is doing anything wrong 
 is immaterial even in the maker. Another element which is some- 
 times imported into these cases is, that if the maker knows that 
 they are not the goods of the person entitled to u-e the trade mark 
 and communifates that knowledge to the immediate purchaser, it 
 makes no difference ; and even if he does not know it and tells the 
 immediate purchaser that the goods are of his own manufacture, it 
 will still not save him from an injunction, because, although the 
 immediate purchaser from him is aware that the goods in questioa 
 are not manufactured by any other person than the vendor, yet, as 
 he passes them on, the representation does not necessarily pass on 
 With them, and therefore the next purchaser, or the following or 
 some other purchaser, or the public at large, who are the ultimate 
 purchasers, would be as much deceived as if no such communica- 
 tion had taken place. Consequently, whenever you get to a case 
 of the first class, you have nothing more to do than to shew that 
 the trade mark has been taken. The second class of cases are 
 cases of a totally different character : they are always cases of 
 fraud. They are cases where the defendant, without putting any 
 trade mark at all on his goods, or putting a trade mark which is 
 admittedly different in substance from the trade mark, if any, of 
 the plaintiff on the goods, has represented the goods as being 
 goods manufactured by the plaintiff. In this class of cases the 
 defendant knows that the goods were manufactured by himself and 
 not the plaintiff, and he knows that the representation he is using 
 is to convey to the mind of the purchaser a contrary impression, 
 and that is a distinct and direct fraud (1). 
 
 7. Though the evidence as to a plaintiff's right to a mark as a 
 trade mark be very unsatisfactory, yet if the defendant has made 
 so complete a copy of the plaintiff's mark that the difference is 
 only nominal, he must be taken to have done so with an intent to 
 gain an advantage to which he is not entitled (2). 
 
 (1) Singer Manufacturing Co. v. ■ (Cli.)490; 24:W.R. 1023; 34L.T.858. 
 Wilson, L. R. 2Ch. D. 434,440; 45 L. J. (2) IJine v. Lart, 10 Jur. 106. 
 
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TRADE MAEKS. 169 
 
 8. Although at Law the single act of making use of the mark Part ll, 
 of another trader will not be sufficient to maintain an action, unless seot. 4. 
 it be done with a fraudulent design, as to put off bad clothes, or 
 
 to draw away customers (1) ; yet in Equity, the use of a trade 
 mark, without any intention to defraud, where for a considerable 
 time a trade has been carried on with the use of the mark as a 
 distinctive one on goods, will be restrained (2). 
 
 9. If a trade mark contain an emblem with such a collocation 
 of word^ as amounts to an advertisement of the character and 
 quality of the goods, and contain statements which, though true as 
 regards the original adopter of the trade mark, are calculated to 
 deceiye the public when used by his assignee ; the assignee is not 
 entitled to protection in the use of such trade mark (3). And 
 where an advertisement or trade mark states that which is not 
 true, it cannot be made the subject of protection by a Court of 
 Equity (4). For when the owner of a trade mark applies for an 
 injunction to restrain a defendant from injuring his property by 
 making false representations to the public, it is essential that the 
 plaintiff should not in his trade mark, or in the business connected 
 with it, be himself guilty of any false or misleading representation ; 
 for if the plaintiff makes any material false statement in connec- 
 tion with the property he seeks to protect, he loses, and very 
 justly, his right to claim the assistance of a Court of Equity (5). 
 And it cannot be received as a rule, either of morality or Equity, 
 that a plaintiff is not answerable for a falsehood because it may 
 be so gross and palpable that no one is likely to be deceived by 
 it (6). 
 
 10. The use of a trade mark by new partners or successors of 
 original adopters is no fraud on the public, but only a statement 
 
 .that the goods are the goods of the firm whose trade mark they 
 bear. If, however, the trade mark contain statements materially 
 
 (1) Blanchard v. Bill, 2 Atk. 484,. 11 H. L. C. 523 ; 11 Jur. (N. S.) 513 ; 
 3rd Ed. ; Popli. 144, 151. 35 L. J. (Oh.) 53 ; 33 L. J. (Oh.) 199 ; 
 
 (2) Colonial Life Assurance Co. v. 1 H. & M. 271 ; 13 W. E. 873. 
 Boine and Colonial Assurance Co., 33 (4) lb. 
 
 Beav. 548 ; vide Millington v. Fox, 3 (5) Leather Cloth Co. v. American 
 
 My. & Or. 338. Leather Cloth Co., 4 De G. J. & S. 137, 
 
 (3) Leather Cloth Co. (Limited) v. 143. 
 
 American. Leather Cloth Co. (Limited'), (6) lb. 137, 148. 
 
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170 TRADE MARKS. 
 
 Pak* II. affecting the value of the goods, such statements must be judged 
 Seot. 4. as if made in separate labels or advertisements, the test being, 
 
 whether they are material misstatements and calculated to deceive 
 
 the public (1). 
 
 11. If the goods of a trader derive their increased value from 
 the personal skill or ability of the adopter of a trade mark upon 
 those goods, he cannot give any other person the right to aflBx 
 his name or mark upon their goods, for the effect thereof would 
 be to give that person the right to practise a fraud upon the 
 public (2), 
 
 12. A trade mark cannot exist in gross, and therefore a person 
 who does not know the recipe for the original article cannot have 
 the right to affix the trade mark of that article to a sham article 
 for the purpose of imposing on the public (3). 
 
 13. Representations upon premises calculated to induce the 
 public to believe that their owner is connected in business with a 
 firm of established reputation, will be considered upon the same 
 principles as govern rights in trade marks (4). And if a Court of 
 Equity is of opinion that what such owner is doing is calculated 
 to mislead the incautious, unwary, and heedless portion of the 
 public, it will restrain such owner from continuing to use such 
 representations in such a way as to mislead the public, even 
 assuming there was no intention to do wrong (5). And an in- 
 junction will be granted to restrain the using of an inscription 
 at business premises, if it amounts to a representation of a succes- 
 sion to the business of a late firm, when such is not the fact (6). 
 
 14. To entitle a trader to relief against an illegal use of his 
 trade mark, it is not necessary that the imitation should be so 
 close as to deceive persons seeing the two marks side by side ; but 
 tlie degree of resemblance must be such that ordinary purchasers, 
 proceeding with ordinary caution, are likely to be misled (7). But 
 if persons of ordinary intelligence are not likely to be misled by 
 
 (!) Leatlier Cloth Co. v. American (5) lb. 
 
 Leather Co. 11 H. L. C. 523. (6) Scott v. Scott, 16 L. T. (N. S.) 
 
 (2) lb. 143. 
 
 (3) Cotton V. GiUard, 44 L. J. (Ch.) 90. (7) Seixo v. Provezende, L. E. 1 Ch. 
 
 (4) Glenny v. Smith, 2 Dr. & Sm. 192 ; 12 Jur. (N. S.) 215. 
 47,6, 479, 480, 482. 
 
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TRADE MARKS. 171 
 
 the title of a publication, into purchasing a defendant's publication Pabt li. 
 by mistake for the plaintiff's, the Court will not grant an injune- Seot. 4. 
 tion (1). The actual physical resemblance of two marks is not the ' 
 sole question for the Court ; for if the plaintiffs goods have, from 
 his trade mark, become known in the market by a particular name, 
 the adoption by a defendant of a mark or name which will cause 
 his goods to bear the same name in the market, is as much a viola- 
 tion of the plaintiff's rights as the actual copy of his mark; and 
 although a defendant may have some title to the use of a name or 
 mark, he will not be justified in adopting it, if the probable effect 
 of so doing is to lead the public to suppose that in purchasing his 
 goods they are purchasing those of the plaintiff (2). The Court 
 will not restrain the use of a label on the ground of its general 
 resemblance to the trade mark of another manufacturer, if it is 
 different in the points which a customer would look at, in order to 
 see whose manufacture he was purchasing (3). 
 
 15. Whenever a name is established by any one as a trade 
 mark, and its use has obtained, no other person can adopt the 
 same name, because by doing so he might lead the public into 
 believing they werfe dealing with one person when they were really 
 dealing with another ; in such cases a Court of Equity says, you 
 shall not so deceive the public ; the Court will restrain anything 
 which might have the effect of so deceiving the public, and its doc- 
 trines are not restricted by any technical rules as to property (4)' 
 In cases of alleged colourable imitations of trade marks, a Court 
 has not to consider whether manufacturers could distinguish between 
 the articles, but whether the public would probably be deceived 
 by the alleged spurious imitation (5). A party who has established 
 a trade mark has a right to prevent anybody else from using it, so 
 as to attract custom which would otherwise flow to himself; and a 
 person who has been in the habit of using a particular mark may 
 
 (1) Bradbury v. Beeton, 39 L. J. 242 ; 22 L. T. (N. S.) 251, 546 ; vide 
 (Ch.) 57 ; 18 W. E. 33 ; 21 L. T. (N.S.) Croft v. Day, 7 Beav. 86 ; Perry v. 
 323. TrueflU, 6 Beav. 66 ; Kelly v. Button, 
 
 (2) lb. L. R. 3 Ch. 708 ; 16 W. R. 1182 ; 
 
 (3) Blackwell v. Orabb, 36 L. J. Bradbury v. Beeton, 18 W. R. 33 
 (Ch.) 504. (5) Shrimpton v. Laight, 18 Beav. 
 
 (4) Lee V. Haley, 39 L. J. (Ch.) 164. 
 284 ; L. R. 5 Ch. 155 ; 18 W. R. 181, 
 
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172 TRADE MARKS. 
 
 Pabt II. prevent other persons from fraudulently taking advantage of the 
 Sect. 4. reputation which his goods have acquired, by using his mark in' 
 order to pass off their goods as his, to his injury (1). 
 
 16. It is not upon a moHa mens towards a first purchaser, that 
 Equity interferes to protect a manufacturer against the use, by 
 another person, of the particular name of his manufactured article, 
 but it is upon the ground that it is a necessary consequence of the 
 first purchaser being furnished with goods with this name or label, 
 that he is enabled to deceive others (2). Where the trade mark 
 is not actually copied, fraud is a necessary element in the con- 
 sideration of every question of piracy of trade marks — that is, the 
 party accused of piracy must be proved to have done the act 
 complained of, with the fraudulent design of passing off his own 
 goods as those of the party entitled to the exclusive use of the 
 trade mark (3). 
 
 17. Although when articles of a particular kind, of an original 
 manufacturer or patentee, as the case may be, have become 
 generally known in commerce, any person has a right, after the 
 expiration of the patent, to manufacture such articles and sell 
 them under that name ; yet he may not, in inscribing the name 
 as a proper name on his shop-front, or otherwise, lead the public 
 to believe that he is selling as the agent for the original manu- 
 facturer (4). Slight differences, which would not be perceived 
 without strict examination, will not protect an imitation from 
 injunction (5). The use of a trade mark simulating another trade 
 mark, calculated to mislead the public into a belief that it is the 
 plaintiff's, will be restrained, although it bear the defendant's 
 name, but in very small letters (6). The test for granting an 
 injunction is a substantial similarity and an intent to continue the 
 manufacture (7). In order to obtain an injunction : first an inten- 
 tion must be shewn to injure the originator, by disposing of the 
 
 (1) Collins Co. V. Brown, Same v. turing Co. v. Shakespeare, 39 L. J. 
 Cohen, 3 K. & J. 423 ; 3 Jur. (N. S.) (Oli.) 36. 
 
 929. (5) Williams v. Johnson, 2 Bosw. 1 
 
 (2) Wotherspoon v. Carrie, L. R. 5 (Amr.). 
 
 H. L. 508 ; 27 L. T. (N. S.) 893 ; 42 (6) Walton v. Crowlet/, 3 Blateif. 
 
 L. J. (Ch.) 130. C. C. 440 (Amr.). 
 
 (3) lb. (7) Bradley v. Norton, 33 Conn. 
 
 (4) Wheeler and Wilson Manufac- 157 (Amr.). 
 
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TEADE MARKS. " 173 
 
 defendant's wares as his ; secondly, if consisting of words, they Paet II. 
 must indicate ownership and origin, not merely quality, kind, seot. 4. 
 texture, composition, utility, intended use, or class of consumers. 
 Names having a definite and established meaning, and not indi- 
 cating ownership, origin, or something equivalent, cannot be ex- 
 clusively appropriated (1). It is not necessary, in order to give a 
 right to an injunction, that a specific trade mark should be infringed ; 
 it is sufiicient that the Court should be satisfied that there was, 
 on the whole, a fraudulent intention of palming off the defendant's 
 goods as those of the plaintiff; but iu such a case it is essential 
 that the imitation should be necessarily calculated to deceive (2). 
 It is not necessary that the whole of a trade mark should have 
 been imitated (3). But if the use of a particular mark is likely 
 to deceive, no evidence will be required of actual deception (4). 
 But the use of a trade mark so as in fact to mislead the public, 
 though unintentionally, will be restrained (5). At Law the proper 
 remedy is by an action for deceit, and proof of fraud on the part 
 ,of the defendant is of the essence of the. action; but a Court of 
 Equity will act on the principle of protecting property alone, and 
 it is not therefore necessary for the injunction, to prove fraud 
 (although it is necessary to entitle the plaintiff to an account of 
 profits), or that the credit of the plaintiff was injured by the sale 
 of an inferior article, and an injury by loss of custom is sufficient 
 to support a title to relief (6). A plaintiff will not be disentitled 
 to sue, by reason that he represents on his labels or trade mark 
 the goods as patented, when in fact they are no longer protected 
 by patent, nor although they may not be manufactured strictly 
 according to the patent, nor exclusively or at all by the patentee. 
 ' But a defendant is not precluded altogether from representing 
 that his goods are manufactured according to a plaintiff's expired 
 patent ; but he must not do so in a manner liable to mislead (7). 
 However, if a plaintiff systematically and knowingly has carried 
 
 (1) Oormn v. Daly, 7 Bosw. 222 1 De G. J. & S. 18S ; 9 Jur. (N. S.) 479 ; 
 (Amr.). 11 W. E. 328. 
 
 (2) WooUam v. JRatcUff, 1 H. & M. (5) Welch v. Enott, 4 K. & J. 747 ; 
 259. 4 Jur. (N. S) 330. 
 
 (3) Braliam v. Bustard, 11 W. E. (6) Edelsten v. Edelsten, supra. 
 1061. (7) Edelsten v. Vich, 11 Hare, 78 ; 
 
 (4) lb. it vide Edelsten v. Edelsten, 18 Jur. 7. 
 
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174 TEADE MAKES. 
 
 Part II. on a fraudulent' trade, and delivered short weight, it is beyond all 
 "gECT^\ ■ question that the Court of Equity will not interfere to protect 
 him in carrying on such a trade (1). 
 
 18. Although there is no right of property in a person to the 
 use of a particular name, to the extent of enabling him to preveut 
 the assumption of his name by another, yet it is otherwise as to 
 the exclusive use of the name in connection with a trade or 
 business ; this right is recognised, and it is a fraud on the part of 
 any one to assume it, colourably or otherwise; or at least an 
 invasion of another's right, and there is a remedy either at Law 
 by an action, or in Equity to restrain the use of the name (2). 
 
 19. Although many manufacturers may subsequently to the in- 
 vention and introduction of a manufactured article by a certain name 
 — as for instance, "Reading Sauce," — by unrestrained usage have 
 acquired the right to call their articles by that name, yet the 
 original inventor, and those claiming under him, have a right to 
 restrain other parties from using such name with the addition of 
 the words " the original," without shewing that any purchaser was 
 actually deceived (3). 
 
 20. Where a person is selling an article in his own name, fraud 
 must be shewn, in order to constitute a case for restraining him 
 from so doing, on the ground that the name is one in which 
 another has long been selling a similar article (4). Where there 
 is a strong resemblance in matter, colours, and arrangement, the 
 Court will presume that it is not fortuitous, but that it was 
 intentional, with a view to mislead purchasers (5). And in an 
 alleged infringement of a right to trade marks, the Court must 
 ascertain whether the resemblances and the difiFerences are such 
 as naturally arise from the necessity of the case ; and whether, on 
 the other hand, the differences are simply colourable, and the 
 resemblances such as are obviously intended to deceive the pur- 
 
 (1) Lee V. Haley, 39 L. J. (Ch.) (3) Cocfe v. aaJwiZer, 40 L. J. (Ch.) 
 
 284; L. R. 5 Ch. 155 ; 18 W. E. 181, 575 ; L. R. 11 Eq. 446 ; 19 W. E. 593; 
 
 242 ; 22 L. T. (X. S.) 251, 546. 24 L. T. (N. S.) 379. 
 
 .(2) Du Boulay v. Du Boulay, L. E. (4) Burgess v. Burgess, 3 De G. M. 
 
 2 P. C. 430 ; 17 W. E. 594 ; 38 L. J. & G. 896 ; 17 Jur. 292 ; 22 L. J. (Ch.) 
 
 (P. 0.) 35 ; 6 Moo. P. C. 0. (N. S.) 31 ; 675. 
 
 22 L. T. (N. S.) 228 ; vide Hilliard, (5) EdeUen v. Vich, 11 Hare, 78 ; 
 
 Inj. p. 501, n., 2nd Ed. 18 Jur. 7. 
 
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TBADE MARKS. 175 
 
 chaser (1). A party will not be allowed to use a plaintiffs name Pabt li. 
 and certificates in favour of the plaintiff's goods in such a manner "^^e™ 4. 
 
 &B frimd facie, though' not in fact, to appropriate and apply them 
 
 to his own goods ; and although there may be other differences in 
 the mode of selling, the proceeding is wrongful, and will be 
 restrained (2). 
 
 21. The number of years a defendant has used another's trade 
 mark makes no difference as a matter of law, if it is proved that 
 the words constituting the trade mark were originally used for 
 the purpose of fraud ; the lapse of time during which the trade 
 mark has been so used will have no effect, except that the proof 
 the Court would require, that such words were first used for the 
 purpose of fraud, must be clearer than where the defendant has 
 only recently adopted them. If he has recently adopted them, 
 he may be called on for a plain and satisfactory explanation of his 
 reasons for their adoption ; and if that is not given, the Court will 
 come to the conclusion that it was done fraudulently, even without 
 precise evidence that any person has been actually deceived (3). 
 
 22. A person who has appropriated to himself a particular label, 
 sign, or trade mark, indicating that a certain article is made or 
 sold by him or by his authority, and with wbich label or trade mark 
 the article is become identified, is entitled to the protection of a 
 Court of Equity, whicb will enjoin any one who attempts to pirate 
 upon the goodwill of his friends or customers by using such label, 
 sign, or trade mark, without his authority ; but there must be, 
 between the genuine and fictitious marks, such general similarity 
 or resemblance of form, colour, symbols, designs, and such identity 
 of words and their arrangement, as to have a direct tendency of 
 misleading buyers who exercise the usual amount of prudence and 
 caution ; and there must also be such a distinctive individuality 
 in the mark employed by the counterfeiter as to procure to him 
 the benefit of the deception resulting from the general resemblance 
 between the genuine and counterfeit labels or trade marks (4). 
 
 (1) Taylor v. Taylor, 23 L. J. (Ch.) (3) Badgers v. Badgers, 22 W. B. 
 225 ; EoUoway v. Holloway, 13 Beav. 887, 888 ; 31 L. T. (N. S.) 285. 
 
 209. (4) Golladay v. Baird, 7 Upp. Can. 
 
 (2) Franks v. Weaver, 10 Beav. Law J. 132. 
 297. 
 
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176 TRADE MAEKS. 
 
 Pabt ir. 23. An element of the right to property in a trade mark may 
 
 Sect. 4. ' ^^ represented as being the fact of the article being in the market 
 ' as a vendible article, with that stamp or trade mark, at the time 
 
 when the defendant imitates it (1). Though there is no exclusive 
 ownership of the symbols which constitute a trade mark, apart from 
 the use or application of them, yet the exclusive right to use such 
 mark in connection with a vendible commodity is rightly called 
 property ; and the jurisdiction of a Court of Equity to restrain the 
 infringement of a trade mark is founded upon the invasion of such 
 property, and not upon the fraud committed on the public ; and 
 also upon the fact that an injunction is the only mode by which 
 the property can be protected (2). And the jurisdiction of the 
 Court in the protection of trade marks resting upon property, 
 fraud in the defendant is not necessary for the exercise of the 
 jurisdiction (3). The essential ingredients for constituting the 
 right to property in a trade mark, probably will be found to be no 
 other than these : first, that the mark has been applied by the 
 plaintiff properly — that is to say, that he has not copied any other 
 person's mark, and that the mark does not involve any false repre- 
 sentation; secondly, that the article so marked is actually a 
 vendible article in the market ; and, thirdly, that the defendant 
 has imitated the mark for the purpose of passing in the market 
 other articles of a similar description (4). But it is settled that 
 knowledge by a party imitating a trade mark, that another party 
 has acquired property in the trade mark, is not necessary to entitle 
 a plaintiff to an injunction ; for the Court will restrain the use by 
 one tradesman of the trade marks of another, although such marks 
 have been used in ignorance of their being any person's property,and 
 under the belief that they were merely technical terms (5). But 
 
 (1) McAndrew v. Bassett, 4 De Gr. (4) McAndrew v. Bassett, 4 De G. 
 J. & S. 380, 384 ; 33 L. J. (Ch.) 561, J. & S. 380, 384 ; 10 Jur. (N. S.) 492, 
 567; 10 Jur. (N. S.) 492, 550; 33 550; 33 L. J. (CL) 561. 
 
 L. J. (Oh.) 561. (5) Mdelsten v. Eddsten, 1 De G. J. 
 
 (2) Leather (Jloih Co. v. American & S. 185, 199; 9 Jur. (N. S.) 479; U 
 Leather Cloth Co., 33 L. J. (Ch.) 199 ; W. E. 328 ; et vide Moet v. Coustm, 
 10 Jur. (N. S.) 81; 9 L. T. (N. S.) 33 Beav. 578; 10 Jur. (N. S.) 1012; 
 558. 10 L. T. (N. S.) 395; Sarnsm v. 
 
 (3) Ball V. Barrows, 4 De G. J. & Taylor, 11 Jur. (N. S.) 408; Cartier 
 S. 150, 156; 33 L. J. (Ch.) 204; 10 v. GtrZisZe, 31 Beav. 292 ; 8 Jur.(N.S.) 
 Jur. (N. S.) 55 ; 9 L. T. (N. S.) 561. 183. 
 
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TEADE MARKS. 177 
 
 i;he plaintiff in such a case is not entitled to an account, nor to Part ii. 
 compensation, except in respect of any user by the defendant after seot. 4. 
 he became aware of the prior ownership (1). An owner of a trade '■ 
 
 mark will not be deprived of remedy in Equity, even if it is shewn 
 that all who bought goods bearing the mark from the defendant, 
 were well aware that the goods were not of the plaintiff's manu- 
 facture. It is enough if the goods were supplied by the defendant 
 for the purpose of being sold again in the market ; nor is it neces- 
 sary to shew that any person was deceived, if the resemblance of 
 the articles is such as would be likely to cause one mark to be 
 mistaken for the other (2). 
 
 24. The Court will not interfere for the protection of a trade 
 mark, unless the mark used by the defendant is applied by him 
 to the same kind of goods as the goods of the plaintiff, and is such 
 that it may be, and is, mistaken in the market for the trade mark 
 of the plaintiff J and the plaintiff must prove that the defendant 
 has used the mark so as to prejudice him in his business (3). 
 
 25. A manufacturer who has adopted a trade mark to designate 
 some particular article as made by him, has a right to the assis- 
 tance of a Court of Equity to prevent any one from so using the 
 same, or any similar mark, as to induce purchasers to believe, 
 contrary to the fact, that they are buying that particular article 
 to which the mark was originally applied (4). It would seem to 
 be a ground of Equity that a party, by knowingly printing labels 
 in imitation of a plaintiff's trade mark, and selling them to any 
 one who asks for them, is supplying the means of committing, 
 and is thus a party to, frauds with which Courts of Equity will 
 interfere to stop at their source (5). 
 
 26. If a trade mark contains a material misrepresentation as to 
 the character of the goods to which it is appliedj the Court will 
 not interfere to protect the use of it, even though the misrepresenta- 
 tion should be so obvious that no purchaser would be deceived (6). 
 
 (1) Edelsten v. Eddsten, 1 De G. J. (4) Farina v. SilverlocJe, 1 K. & J. 
 & S. 185, 199 ; 9 Jur. (N. S.) 479 ; 11 509 ; 4 K. & J. 650. 
 
 W. E. 328. (5) Ik 
 
 (2) lb. . (6) Leather Cloth Co. v. American 
 (3> Leather Cloth Co. v. American Leather Cloth Co., 33 L. J. (Oh.) 199 ; 
 
 Leather Cloth Co., 33 L. J. (Oh.) 199 ; 10 Jur. (N. S.) 81 ; 9 L. T. (N. S.) 
 10 Jur. (N. S.) 81 ; 9 L. T. (N. S.) 558. 558 ; 4 De G. J. & S. 137, 142. 
 
 N 
 
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178 TRADE MARKS. 
 
 ^ Paet rr. 27. If a name impressed upon a vendible commodity passes 
 Sect. 4. " Current in the market as a representation that the conunodity has 
 '■ been maii,ufactured by a particular person, the Court would not 
 
 transfer to another person the right to use the name simply and 
 without addition; but if it sold the business carried on by the 
 owner of the name, it might give to the purchaser the right to 
 represent himself as the successor in business of the first maker, 
 and in that manner to use the same name. But where a name 
 once affixed to a manufactured article continues to be used after 
 the death of the manufacturer, the name in time becomes a mere 
 trade mark, or sign of quality, and ceases to denote, or to be 
 current as indicating, that any particular person is the maker, and 
 would therefore be protected (1). And a trade mark consisting of 
 the initials of the first manufacturers of the goods may, in the 
 course of time, become a mere mark of quality, without implying 
 a guarantie that the goods are still manufactured by the same 
 traders ; and such a mark will be protected by the Court on the 
 ground of property (which is the true ground of the jurisdiction 
 of the Court in the protection of trade marks), even in the absence 
 of fraud (2). There is no exclusive ownership of the symibols 
 which constitute a trade mark, apart from the use or application 
 of them ; but the word " trade-mark " is the designation of these 
 marks or symbols, as and when applied to a vendible commodity, 
 and the exclusive right to make such user or application is rightly 
 called property. The true principle, therefore, would seem to be 
 that the jurisdiction of the Court, in the protection given to trade 
 marks, rests upon property, and that the Court interferes by 
 injunction, because that is the only mode by which property of 
 this description can be effectually protected (3). 
 
 28. Where any person introduces into the market an article 
 which, though previously known to exist, is new as an article of 
 commerce, and has acquired a reputation therefrom in the market 
 by a name not merely descriptive of the article, a Court of Equity 
 will protect the use of that name, and no other persoh will be 
 
 (1) Leather Cloth Co. v. American (2) lb. 
 
 Leather Cloth Co., 33 L. J. (Ch.) 199; (3) The Leather Cloth Co., Limited, 
 
 10 Jur. (K S.) 81 ; 9 L. T. (N. S.) v. American Leather Cloth Co., Li- 
 
 558 ; 4 De a. J. & S. 137, 142. mited, 4 De G. J. & S. 137, 142. 
 
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TRADE MARKS. 179 
 
 permitted to sell a Similar article under the same name ; and this, Pabt ii. 
 although the peculiarity of the name has long been in common seot. 4. 
 use as applied to goods of a different kind. And it will make no 
 difference that the plaintiff has also a trade mark which has not 
 been taken by the defendant (1). The Court will restrain the use 
 by a third party, of an arbitrary name which a plaintiff has in- 
 vented and applied to a particular class of goods as sold by him, 
 and which has thus become identified with the plaintiff's goods, 
 where the sale of that class of goods is open to all the world (2). 
 But where the class of goods is a patented article, no such pro- 
 tection will be afforded, for the name becomes identified with the 
 goods, not because they are the plaintiff's, but because he alone, as 
 patentee, can make and sell them ; and if the goods are the same, 
 but made or manufactured in a totally different way and from a 
 totally different natural source, so that there is no infringement of 
 the patent, a third party may use the name fixed upon by the 
 patentee (3). 
 
 29. Although a party, by dismissing a former bill, has abandoned 
 all right to the exclusive use of a term, he is entitled to restrain 
 any person from selling a similar article as the " original " one, if 
 he can shew that any one has been misled by that title into buying 
 the defendant's goods instead of those of the plaintiff (4). 
 
 30. A man who innocently uses a trade mark, will be restrained 
 from the further use thereof (5). And so if a person innocently 
 sell goods bearing a spurious trade mark, he will be restrained 
 from so doing (6), but he is not, in Equity, liable to account for the 
 profits made thereby during the time that he was ignorant of the 
 prior ownership (7). 
 
 31. If the owners of a trade mark do not know who are the 
 invaders of their trade mark, they are entitled to a discovery 
 from a shipper of the names of the consignors of goods bearing 
 
 (1) Braham v. Bustard, 1 E. & M. (4) Browne v. Freeman, 12 W. R. 
 447; 11 W.R. 1061. 305. 
 
 (2) Towng v. Macrae, 9 Jur. (N. S.) (5) Burgess v. Hill, 26 Beav. 244 ; 
 322 ; Melsten v. Edelsten, 1 De G. J. Ewrrison v. Taylor, 11 Jur. (N. S.) 408. 
 & S. 185 ; 9 Jur. (K S.) 479 ; 11 W. R. (6) Moet v. Coustm, 33 Beav. 578 ; 
 328 ; McAndrew v. Bassett, 10 Jur. 10 Jur. (N. S.) 1012. 
 
 (N. S.) 492, 550; 33 L. J. (Oh.) 561. (7) Moet v. Couston, supra; Edel- 
 
 (3) lb. sten v. Edelsten, 1 De G. J. & S. 185. 
 
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180 TEADB MAEKS. 
 
 Pakt II. marks which are counterfeits of the owner's trade mark; the pogi* 
 Sect. 4. tioa of an actual shipper, in such a case, is different from that of. 
 a mere witness, and he can be made a defendant in a bill for such 
 dicovery (1), And a manufacturer of an article stamping the same 
 with a trade mark at the order of another person, not the owner of 
 the mark, will be restrained from manufacturing the article with 
 that mark (2). 
 
 32. There is no doubt that a word which was originally a 
 trade mark, to the exclusive use of which a particular, trader 
 may have been entitled, may subsequently become puUiei juris; 
 but a trade mark may become pvbliei jv/ris as between the. 
 wholesale dealer and the retail dealer, while, at the same time, 
 it may not be so, as between the retail dealer and the public, his 
 purchasers (3). 
 
 33. The Court will not restrain the use of an English adjective 
 merely descriptive of quality, though a foreign word may, how-, 
 ever, be used as a trade mark (4). 
 
 34. In the sale of a business, a trade mark passes, whether 
 specially mentioned or not, and the Court will restrain the use of 
 the trade mark by the vendor (5). 
 
 35. If a plaintiff, upon obtaining a decree restraining the use of 
 a trade mark, also obtain a direction for an inquiry whether he 
 has sustained any and what damage, and he does not prove any 
 direct damage ; he cannot, in the absence of evidence to what 
 extent the defendant had used the trade mark, claim damages 
 equal to the profits made by the defendant on his sales of the 
 article upon which the trade mark was used ; such a claim would 
 be asking the Court to assume that the plaintiff would have sold 
 all the articles which the defendant had sold marked with the 
 trade mark; and this assumption the Court cannot make (6). 
 
 36. Delay in filing a bill to restrain the infringement of a trade 
 
 (1) Oir V. Diaper, L. E. 4 Ch. D. 53, 54 ; 29 L. T. (N. S.) 448; L. B. 
 92. 17 Eq. 29 ; 43 L. J. (Ch.) 64. 
 
 (2) Collins Co. v. JTaZ^er, 7 "W. E. (5) Shipmrighty.Clements.liW.'B,. 
 222. 599. 
 
 (3) Ford V. Foster, L. E. 7 Ch. 611 ; (6) Leather Cloth Co. v. Hirsch- 
 41 L. J. (Ch.) 682; 27 L. T. (N. S.) field, 14 W. E. 78-, 13 L. T. (N. S.) 
 219 ; 20 W. E. 818. 427. 
 
 (4) Bagyett v. Findlater, 22 W. E. 
 
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LETTERS. 181 
 
 mark will disentitle the plaintiff to an interlocutory injunction (1). Paet li. 
 And where the delay is great, the laches will disentitle him to any g^j,_ ^^ 
 
 relief (2). But if the plaintiff is obliged to wait until sufficient 
 
 proof of the injury he has received is collected, the Court will not 
 impute laches to him (3). Delay — for instance, five months delay — 
 is fatal to an appeal from an interlocutory order refusing an 
 injunction (4). 
 
 Sect. 5. Letters.. 
 
 1. The author of any letter or letters, or his personal represen- 
 tative, whether literary compositions, or familiar letters, or letters 
 of business, possesses the exclusive right of publishing them ; and 
 the receiver, or his personal representative, can only justify their 
 publication without the consent of the writer, when it is necessary 
 to do so, in order to vindicate the character of the receiver from 
 false imputations cast upon him by the writer, or in order to vindi- 
 cate the rights of the receiver (5). The sending of a letter bearing 
 the character of a literary composition, does not give the person 
 to whom it is transmitted, the right to publish it for his own 
 benefit (6). 
 
 2. The receiver of a letter is the owner of it (7) ; and there is 
 no joint property in a letter, between the receiver and the writer ; 
 but possession by the receiver' does not give him license to publish 
 it (8). The receiver of a letter may use it for all lawful purposes, 
 and the only right which the writer of it has, in reference to it, is to 
 restrain publication (9). The writer of a letter trusts the receiver 
 with the letter ; if the sender of a letter wishes to restrain the 
 
 (1) Flavell V. Ha/rrison, 10 Hare,- V. & B. 19 ; Woolsey v. Judd, i Duer. 
 467; 17 Jur. (N. S.) 368; 22 L. J, 379 (Amr,); Thompson v. Stanhope, 
 (Oh.) 866. Ambl. 737 ; Cadell v. Stewart, 1 Bell, 
 
 (2) Beard v. Turner, 13 L. J. (N. S.) Com. 116, n. 
 
 746. (6) Perceval v. Phipps, supra. 
 
 (3) Lee v. Eatey, 39 L. J. (Ch.) (7) Bopkinson v. Burghley {Lord), 
 284 ; L. E. 5 Ch. 155 ; 18 W. E. 181, L. E. 2 Ch. 447 ; 36 L. J. (Oh.) 504. 
 *242 ; 22 L. J. (N. S.) 251, 546. (8) lb. ; {Pope v. Curll, 2 Atk. 342, 
 
 (4) Burgess v. Burgess, 3 De G. M. speaks of a "joint property " between 
 & G. 896 ; 17 Jur. 292 ; 22 L. J. (Ch.) the receiver and writer). 
 
 675. (9) Eophinson v. Burghley, supra. 
 
 (5) Perceval {Lord) v. Phipps, 2 
 
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182 CHATTELS, SPECIFIC CHATTELS, FIXTURES, PICTURES, ETC. 
 
 Pabt II. receiver from shewing it to any other person, he must file a bill 
 SicT. 5. ' for that purpose, and unless that is done, the property is in tlie 
 receiver. , The question in all these cases is, what was the purpose 
 or object in the mind of the person sending the letter ? and the 
 writer is supposed to intend that the receiver may use it for any 
 lawful purpose ; but publication is not such a lawful purpose (Ij, 
 
 Sect. 6. Chattels, Speeifie Chattels, Fixtv/res, Pictwres, Paintings, 
 
 Game. 
 
 1. Where a chattel, from being used in business or otherwise, 
 has a peculiar value, a Court of Equity will entertain a biU for an 
 injunction to restrain its sale or detention (2) ; and where specifid 
 things necessary for conducting a particular business, are in the 
 possession of persons who claim a lien upon them and threaten an 
 immediate sale, the Court has undoubted jurisdiction to interfere 
 by injunction, and prevent irreparable injury to the debtor, by 
 giving him an opportunity of redeeming (3). So the Court has 
 jurisdiction to order the delivery up to an artist, of a picture 
 painted by himself, as having a special value, or as being a specific 
 chattel of a peculiarly valuable kind, the legal remedy being in- 
 adequate (4). But if, by putting a fixed price upon an article, 
 damages are an adequate remedy, that circumstance will raise an 
 insuperable difficulty to the exercise of the jurisdiction of a Court 
 of Equity in such cases (5). But the jurisdiction of the Court by 
 injunction to protect the possession, and to decree the delivery up 
 of specific chattels, is not merely, as to such, the loss or injury to 
 which, would not be adequately compensated by damages, it ex- 
 tends to all cases where the possession has been acquired through 
 an alleged abuse of a party standing in a fiduciary relation to the 
 plaintiff (6). A Court of Equity has jurisdiction for the delivery 
 
 (1) Eopkmson v. Bvirghky (Lord), H. 544 ; et vide Fells v. Read, 3 Ves, 
 L. R. 2 Ch. 447 ; 36 L. J. (Ch.) 504. 70 ; The Pusey Bom Case, 1 Vem. 273. 
 
 (2) North V. Cheat Northern Bailw. (5) Bowling v. Betjemmn, 2 J. & 
 Co., 2 Giff. 64. H. 544, 553. 
 
 (3) lb. (6) Wood V. Rowcliffe, 2 Ph. 382; 
 
 (4) Bowling v. Betjermnn, 2 J. & 3 Hare, 304^ 6 Hare, 187- 
 
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CHATTELS, SPECIFIC CHATTELS, FIXTURES, PICTDEES, ETC. 183 
 
 Up of chattels, and where there is a joint interest, permits some to Part ll. 
 sue as individuals representing the rest, in other instances than seot. 6. 
 those of creditors and legatees (1). The right to be protected by " "" 
 injunction in the use or beneficial enjoyment of property in specie, 
 is not confined to articles possessing any peculiar or intrinsic 
 Value (2). And goods, such as pictures, furniture and other 
 articles in trust for a married woman, will be protected by an iu- 
 junction from being disposed of (3), And upon the same prin- 
 ciples of fiduciary relationship, express or implied, or irrepar- 
 able injury, or the protection of the legal or equitable right, a 
 Court of Equity will restrain the sale or removal of fixtures upon 
 premises, whether they belong to the landlord, by the rules of 
 the Common Law (4), or have by contract been rendered irre* 
 movable (5). 
 
 2. A tenant, with an exclusive right of sporting and killing 
 game, will be protected by an injunction from the interference 
 of his landlord, by disturbing, driving away, or destroying game, 
 in the exercise of that right according to the terms of an agree- 
 ment not under seal, until a lease can be executed under seal, 
 aiceording to the agreement (6). In order to acquire such a right 
 an instrument under seal is necessary, as at Law an instrument 
 purporting to grant such a right, though given for a valuable con- 
 sideration, is revocable at any time (7). Therefore a plaintiff in 
 such a case has no remedy at Law rmtil a deed has been executed 
 by the landlord containing a proper and legal grant of such exclu- 
 sive right of sporting (8). But a landowner who has agreed to 
 demise land for a term of years with the exclusive right of shoot- 
 ing, or who has granted such a lease, wiU not be prevented by a 
 Court of Equity from cutting trees upon the estate in the course 
 
 (1) Lloyd V. Loanng, 6 Ves. 773. QetUng, 2 J. & H. 520. 
 
 (2) Wood V. SowcUffe, 2 Ph. 382; (5) Bidder v. Trinidad Petroleurp. 
 3 Hare, 304; 6 Hare, i87. Co., 17 W, R. 153. . 
 
 (3) Arunddt (Lady) v, Pkipps, (6) Frogley y. Earl Lovelace, Jdh. 
 Arundell (Lady) v. Taunton, 10 Ves. 333. 
 
 139. (7) WoodY.Leadhitter,lZU.&W. 
 
 (4) Bichardson v. Ardley, 38 L. J. 838. 
 
 (Ch.) 508 ; Pugh v, Arton, L. R. 8 Eq. (8) Frogley v. Earl Lovelace, supra J 
 
 626; 17 W. E. 984; 38 L. J. (Ch.) vide Birkhech v. Paget, Sl.Beav. 403. 
 619 ; 20 L. T. (N. S.) 865 ; JejiMns v. 
 
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184 STOCKS, CONSOLS— POLICIES— DEEDS, INSTRUMENTS, ETC 
 
 Pabt II. of his management of his estate in the way he thinks best, the 
 Sect. 6. " landlord, of course, not doing anything for the express purpose of 
 injuring the right of shooting (1). 
 
 Sect. 7. Stoelis, Consols — Policies — Deeds, Instruments — Bills of 
 Exchange, I. 0. U.'s, Promissory Notes — Bonds. 
 
 stocks. Con- 1, If the circumstances of a case are fraught with suspicion 
 that a transfer of stock has been obtained by inequitable means, a 
 Court of Equity will restrain the transferee from making a trans- 
 fer, or receiving the dividends until the hearing of the cause (2). 
 So the transfer of stock which is suspected to have been produced 
 from the moneys of a principal, or from the mixture of his moneys 
 and those of an agent — for instance, a steward — will be restrained 
 by an interlocutory injunction, less mischief being done by fixing 
 the injunction upon the whole, till it can be ascertained what is 
 the principal's, than by not fixing the. injunction upon any part, 
 thus giving the agent an opportunity of doing enormous in- 
 justice (3). If a transfer is about to be made of stock to wrong 
 persons through mistake, the Court wiU grant an injunction f o 
 -restrain the transfer where there are grounds for believing that 
 the defendant will avail himself of the error, and will refuse to 
 make a re-transfer (4). And the Court will restrain the transfer 
 of stock or dividends standing in the name of a testator, or in a 
 defendant's own name, belonging to the testator ^pendente lite in a 
 Court fqr the proof of wills, upon the wUl of a testator (5). 
 
 Policies. 2. A Court of Equity will restrain a company from transferiing 
 
 its business and assets to another company contrary to the pro- 
 visions of its deed of settlement, and without making provision 
 out of its assets for the payment of a policy for which its funds 
 are liable (6). If, upon an insurance, there be concealment of a 
 
 (1) Gearm v. Baker, L. E. 10 Ch. 46, 50. 
 
 355 ; 44 L. J. (Ch.) 334.; 23 W. R. 543 ; (4) Arkwright v. Oryles, 13 L. J. 
 
 33 L. T. (N. S.) 86 ; 44 L. J. (Ch.) 334. (N. S.) Ch. 303. 
 
 ■ . (2) Custance v. Cumnmghcm,, 13 (5) King v. King, 6 Ves. 172. 
 
 Beav. 363. (6) Kearns v. - Leaf, Aldebert v. 
 
 (3) Ohedworth v. Edwards, 8 "Ves. Kearns, 1 H. & M. 681. 
 
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STOCKS, CONSOLS— POLICIES— DEEDS, INSTRUMENTS, ETC. 185 
 
 ship's danger, a Court of Equity will grant an injunction and re- ^■^^^ ^^■ 
 lieve the insurers against the insurance as fraudulent, and will Sect. 7. ' 
 decree the policy to be delivered up, but direct the premium to be 
 paid back. The insured must deal fairly with the insurers, and 
 must disclose to them what intelligence he has of the ship being 
 in danger, which might induce him at least to fear that it is lost, 
 though he has no certain account of it ; the concealing of such 
 intelligence is a fraud (1). 
 
 3. Where deeds are executed by both parties with a fraudulent Deeds, Instiu- 
 intent, it would seem that no relief will be giv^n to either, in such 
 
 cases neither party has a right to apply to a Court of Equity (2). 
 
 4. If there is any doubt of the possible effect of a lost instru- 
 ment — for instance, an agreement — the trial of an issue will be 
 directed ; but the Court will not restrain: a party claiming against 
 that instrument, from proceeding at Law until the production of 
 the instrument, which may never be capable of being produced, 
 on the ground that the instrument or contract might amount to 
 the total relinquishment of the right the party is insisting upon 
 at Law ; but it is otherwise where, though there is not any sus- 
 picion of unrighteous spoliation, there has been negligence ; in that 
 case all the inconvenience must rest upon the negligent party (3). 
 
 5. The result of an examination of the authorities, with refer- Bills of ex- 
 ence to the right to have a bill of exchange delivered up to be j. o. u! s, 
 cancelled, seems to be, that if a party has wrongfully obtained ^0^*^°"'^ 
 possession of a bill of exchange, although under circumstances 
 
 which would give a complete defence at Law, Equity will never- 
 theless interfere, if from lapse of time or death of witnesses such 
 defence is likely to fail ; but that if the objection, being apparent 
 on the face of the instrument, must always be open to the defen- 
 dant whenever such action be brought against him, he is not 
 entitled to apply to a Court of Equity for relief (4). And the 
 cases of fraud where a bill has been ordered to be given up are 
 confined to those where the possession, but for the fraud, would be 
 that of the plaintiff in Equity (5). But after an action has been 
 
 (1) De Costov. Soa«(?ref, 2 P. Wms.: (3) Power v. SlieU, 1 Moll. 296, 
 170. 312, e. 
 
 (2) Brachenlury v. Brachenbury, 1 (4) Jones v. Lane, 3 Y. & Coll. 281, 
 J. & W. 391. (5) lb. 
 
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1H6 STOCKS, CONSOLS— POLICIES— DEEDS, INSTEUMENTS, ETC.' 
 
 Past II. brought on a bill of exchange, or a bond, and the amoimt hag 
 Sect. 7. been recovered at Law and received by the plaintiff in the suit in 
 
 Equity, there appears to be no instance of a bill being filed to 
 have such instruments delivered up (1). 
 
 6. A Court of Equity will grant relief against a bill of ex- 
 change said to be for value received, but gained by fraud and for 
 a fictitious consideration (2), and a note given ex twrfi cavsd will 
 be set aside (3). The purchase of a share in mines which prove 
 to be a bubble, or money paid for effecting illegal assurances, are 
 not such considerations as will support a bill of exchange in 
 Equity (4). And a promissory note, if suspicious in itself under, 
 the circumstances, and the admitted object of it is an improper 
 one, even if the note be actually genuine, will be decreed, at the 
 instance of the person alleged to have given it, to be deposited in 
 Court in the first instance, with a declaration that the plaintiff is 
 entitled to be relieved against it, without preventing the defendant 
 from bringing an action on it within a reasonable time, and if 
 there be delay in doing so, then he is entitled to have the bill de- 
 livered up (5). So the Court wiU relieve against bills of exchange, 
 given without consideration indorsed to a holder as a mere trus- 
 tee (6). Bills of exchange made in a foreign country, on foreiga 
 stamps, and substituted in that foreign country for English, which 
 were originally given for a gambling debt, will be ordered to be 
 given up (7). The Court will restrain the negotiation of or parting 
 with bills or notes obtained upon an illegal transaction, as at play, 
 or fraudulently (8). And if the right is clear, the Court will refuse 
 an opportunity of trying it at Law, and decree an immediate de: 
 livery of such bills (9). An indorsee of a note impeached on the 
 ground of fraud, with notice that such note was not to be nego- 
 tiated, but to be an item in further settling accounts between the 
 
 (1) Threlfall v. Lunt, 7 Sim. 627. (6) Knill v. Ohadvnch, 16 L. J. 
 
 (2) Dijer v. Tymewell, 2 Vern. 122 ; (N. S.) Ch. 410. 
 
 2 Preem. 112. (7) Wynne v. Callander, 1 Enss.' 
 
 (3) Bobinson v. Cox, 9 Mod. 263. 293. 
 
 (4) Browne v. Marsh, Gilb. Eq. . (8) v. Blackwood, Anstr. 351 j 
 
 Eep. 154; Ex parte Mather, 3 Ves. 3 Bouv. Inst. 128 (Amr.) 
 
 373. (9) Newman v. Milner, 2 Ves. J. 
 
 (5) Winchester (Bishop of) v. Four- 483. 
 nier, 2 Ves. Sen. 445. 
 
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STOCKS, CONSOLS— POLICIES— DEEDS, INSTRUMENTS, ETC. 187 
 
 parties, will be restrained from taking out execution upon any Part n. 
 judgment he may obtain (1). Sect. 7. 
 
 7. The Court will not relieve, by way of indemnity for losses 
 on a bill negotiated before notice of the failure of the considera- 
 tion — as, for instance, a guaranteed article which turns out worth- 
 less — the remedy is at Law by an action for damages for a breach 
 of warranty, unless there are signs of a charge of having know- 
 ingly sold a worthless article, the consideration for the bill of ex- 
 change (2). The Court will restrain the negotiation of a bill of 
 exchange given for goods not delivered (3). 
 
 8. If a firm would have accepted bills of exchange, whether 
 they had seen bills of lading or not, stated to be held as security, 
 and there has not been any representation as to the genuineness 
 of the bills of lading, which turn out to be forgeries, the Court 
 will not relieve the acceptors (4). 
 
 9. Where an absolute note is given, but from accompanying 
 circumstances, it appears that the note is to be collected only on a 
 contingency which has not occurred, Equity will grant relief (5). 
 Equity will, in general, enjoin the transfer of a specific thing, which 
 if transferred, will be irretrievably lost ; as in the case of negoti- 
 able securities and stocks (6). So where a person has negotiable 
 securities in his possession under a void contract, and is not of suf- 
 ficient responsibility to answer for the value thereof, the negotia- 
 tion of them will be restrained (7). 
 
 10. Eelief, on the principle of correcting abuses of confidence 
 will be given against the liability of a maker of a promissory note 
 — as, for instance, to a patient against a note given by him to his 
 medical attendant — where such a note has been given under undue 
 infiuence, stiU the note will be retained as a security for what shall 
 prove to be justly due (8), 
 
 (1) Bainbridge v. Hemingway, 12 398 ; 24 L. T. (N. S.) 286. 
 
 L. T. (N. S.) 74. (5) Claytm v. Lyh, 2 Jones, Eq. 
 
 (2) Jacksm V. Shanhs, 15 W. E. 188 (Amr.) 
 
 55 ; 12 Jur. (N. S.) 917 ; vide Anglo- (6) Oslm-n v. Bank, &c., 9 Wheat, 
 
 BaniMcm Go. v. Bogerson, L. E. 4 738 (Amr.). 
 
 Eq. 3. (7) Ddafield v. Illinois, 2 Hill. 159 
 
 (3) Patrich v. Earrieon, 3 Bro. C. C. (Amr.), 
 
 476. (8) Billage v. Southee, 9 Hare, 534 ; 
 
 (4) Leather v. Simpson, 19 W. E. S. 0. smJ. nom. Billing v. Southee, 21 
 431 ; 40 L. J. (Oh.) 177 ; L. E. 11 Eq. L. J. (N. S.) Ch, 472 ; 16 Jur. 188.. 
 
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188 STOCKS, CONSOLS— POLICIES— DEEDS, INSTRUMENTS, ETC. 
 
 Paet IL 11. Although Courts of Equity have a concurrent jurisdiction 
 
 Sect.'?. ' with Courts of Law in relieving against promissory notes taken 
 
 when overdue (1) ; yet if the equities disclosed will furnish a clear 
 
 defence at Law, a Court of Equity will not interfere to restrain 
 
 actions on the notes (2). 
 
 12. The acceptor of a bill of exchange, who has, by the hands 
 of the drawer, as his agent, .paid the amount of the bill after it 
 had become due to an indorsee for value, without procuring it to be 
 delivered up, who afterwards indorses the bill to another person 
 without consideration, in order to recover the money from the 
 acceptor: a second time, will be relieved in Equity against an action 
 on the bill for the amount (3). 
 
 13. It would seem, that where parties intend that a promissory 
 note shall be joint and several, but through ignorance it is ex- 
 pressed to be joint only, a Court of Equity will relieve as well 
 against the surety as the principal (4). 
 
 14. The drawer of a bill cannot enjoin an innocent holder from 
 . collecting it of an accommodation acceptor, on the ground of 
 
 fraud in the payee (5). 
 
 15. A Court of Equity will not allow a bill discounter, who 
 has obtained from a young man at college bills of exchange, 
 I. 0. U.'s, &c., for money advanced at high rates of interest, to 
 take advantage of them;- notwithstanding an acknowledging by 
 the debtor that the account between himself and the money 
 lender has been settled; the Court will only allow the moneys 
 actually advanced, with iaterest at £5 per cent., and the securities 
 will be ordered to be delivered up and cancelled (6). 
 
 16. It is a fraud on the bankrupt laws for any creditor secretly 
 to bargain for or obtain a larger dividend than the other creditors ; 
 and this principle applies to a secret bargain after the bank- 
 ruptcy, and before any composition under arrangement clauses is 
 agreed to ; and a bill of exchange to secure to one creditor a 
 larger dividend than that received by the other creditors under 
 the arrangement clauses, made by private agreement before the 
 
 (1) Eodgson v. Murray, 2 Sim. 515 ; (5) Winn v. Wilkins, 35 Miss. 1S6 
 3 Sim. 283. (Amr.). 
 
 (2) Jcmes v. Lane, 3 Y. & Coll. 281. (6) Oroft v. Graham, 9 Jur. (N.S.) 
 
 (3) Earle v. Bolt, Hare, 180. 1032 ; 9 L. T. (N.'S.) .589, 
 
 (4) Bawstone v. Parr, 3 Euss. 424. 
 
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STOCKS, CONSOLS— POLICIES-DEEDS, INSTEUMENTS, ETC. 189 
 
 comfiosition under the arrangement cladsea is made, is illegal and Part II. 
 void, and will be ordered to be delivered up (1). Sect. 7. 
 
 17. A Court of Equity will restrain the negotiation Of a bill of 
 exchange by a holder who has given valuable consideration for it, 
 but who has notice that it had been improperly accepted by a 
 partner of the plaintiff in the partnership's name (2). 
 
 18. The Court will restrain the negotiation of bills void in their 
 creation (3). A bill of exchange given' to secure procuration 
 money agreed to be given to the colonel of a regiment for a com- 
 mission is void, and the Court will interfere even after the money 
 is in the hands of the sheriff on an execution at Law (4). 
 
 19. The negotiation of bills of exchange and promissory notes 
 given for a marriage brocage consideration will be restrained, 
 within the reason of cases where there have been probates of 
 false wills, surreptitiously obtained, where the Court has restrained 
 the executors from parting with the assets pendente lite (5). Tor 
 otherwise the plaintiff in such cases would be without remedy, 
 if the note were disposed of for valuable consideration, and 
 without notice (6). 
 
 20. To set aside bargains at Law fraud must be proved ; but Bonds. 
 Equity relieves against presumptive fraud (7). And a Court of 
 Equity wiU. relieve against a demand founded on an unconscion- 
 able bargain and contract, and will restrain proceedings at Law 
 
 and relieve against the penalty of a bond obtained on such a 
 bargain, upon payment of what is due (8). In almost every case 
 upon the subject of advantages gained by fraud and breach of 
 trust, a principal ingredient is a degree of weakness short of legal- 
 incapacity, and no relief will probably be given, if the Court does 
 not consider the party whose bond or other security or contract, 
 it is desired should be set aside, or relieved against, as more liable 
 to imposition than the generality of mankind (9). 
 
 (1) Ma/re v. Scmdford, 1 Giff: 288; Amb. 66; Cotton v. Oatlyn, 2 Eq. 
 5 Jur. (N. S.) 1339. Abr. 525. 
 
 (2) Bood Y. -Aston, 1 Buss. 412. (6) lb. 
 
 (3) Lloyd V, Gurdon, 2 Sw. 180. (7) JEarl of Chesterfield v. Jomnss&n,^ 
 
 (4) WhUlingham v. Burgoyne, 3 1 Atk. 352. 
 Anstr. 900. (8) lb. 
 
 (5) Smith V. Aykwell, 3 Atk. 566 ; (9) Qriffin v. DeveuiUe, 3 E. Wms. 
 S. C. sub,, nom. Smith v. Haytwell, 130, n. (1), 5th Ed. 
 
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190 STOCKS, CONSOLS-POLICIES— DEEDS, INSTRUMENTS, ETC. 
 
 Pabt II. 21. A bond against the law of nature, as to prohibit a son 
 
 "sect.?. ^om cherishing his mother, will be relieved against (1). A bond 
 given as a remuneration for having assisted the obligor in effect- 
 ing an elopement and a marriage without the consent of the 
 friends of the wife, will be declared void (2), A bond given as a 
 reward for using influence over another's estate for the benefit 
 of the obligor will also be decreed to be delivered up (3). So 
 marriage brocage bonds will be set aside ; such bonds are not to 
 be countenanced (4). 
 
 22. Bonds for procuring admittance into the service of the 
 Crown will be relieved against (5). Bonds and engagements of 
 this nature are highly to be discouraged. Merit, industry, and 
 fidelity ought to recommend persons to places under the Crown, 
 and not interest. Such instruments are a fraud on the public, 
 and would open a door for the sale of such offices. They take 
 away from the officer what the Treasury think to be but a reason- 
 able reward for the care and trouble of the officer, and an encou- 
 ragement to his fidelity, and must needs be of the most pernicious 
 consequence, and induce the officer to make it up by some 
 unlawful means, such as corruption and extortion ; wherefore since 
 engagements of this kind are likely to occasion corruption and 
 extortion in offices, by having the profits of places separated from 
 the places themselves, a bond given for such a purpose will be 
 ordered to be delivered up, and a perpetual injunction awarded 
 thereon (6). 
 
 23, Though Equity will in some cases carry a debt secured by 
 a bond beyond the penalty, as where a man is kept out of his 
 money by an injunction, or is prevented by an injunction from 
 going on at Law (7) — except it be for a short time only (8)— 
 there being no misconduct on the part of the creditor (9), yet 
 (subject tasuch exceptions), where a man has judgment for the 
 
 (1) Traiton y. Traitm, 1 Vera. 413, Eep. 187 ; Keat v. AUen, 2 Vem. 588 ; 
 414. Anm., Prec. Ch. 267 ; Semb. S. C. 
 
 (2) WUliamson v. Oihon, 2 Soh. & (5) Law v. Law, 3 P. Wms. 391. 
 Lef, 357. . (6) lb. 
 
 (3) Debmhmi v. Ox, 1 Ves. 277. (7) DmotZ v. Terry, Show. P. 0. 15. 
 
 (4) Smith V. Bnming, 2 Vem. 392 ; (8) Denny v. Lord EnniskUlm, 2 
 Brury v. Hoolce, 1 Vem. 412; 2 Ch. Moll. 535. 
 
 Ca. 176 ; Arundel v. Trevillian, 1 Ch. (9) Grant v. Grant, 3 Euss. 598. 
 
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STOCKS, CONSOLS— POLICIES— DEEDS, INSTRUMENTS, ETC. 191 
 
 penalty of a bond, thougli the principal and interest exceed the Part li. 
 penalty, he shall recover no more than the penalty (1). No sect. 7. 
 interest will be allowed beyond the penalty of the bond, except 
 on special grounds (2). 
 
 24. Where the penalty of a bond is inserted merely to secure 
 the enjoyment of a collateral object, the enjoyment of the object 
 is considered as the principal intent of the deed, and the penalty 
 only as accessional, and therefore only to secure the damage 
 really incurred. This rule is too strongly established in Equity 
 to be shaken, and Equity will grant an injunction against a suit 
 for the recovery of the penalty (3). So if the penalty is to secure 
 the not doing of an act, the penalty is not to be considered the 
 price for doing that act ; but a Court of Equity will relieve by 
 injunction until the actual damage is ascertained (4). Equity 
 will not suffer a penalty to be demanded, if the party will perform 
 that, for the non-performance of which, the penalty is given (5). 
 And if a defendant, having the plaintiff in execution, refuse to 
 discharge him without payment of the penalty, the defendant 
 will be decreed to refund all he has received, except principal, 
 interest, and costs (6). So Courts of Equity will relieve against 
 the penalty of a bond in cases of fraud (7). So in cases of post- 
 obit bonds (8). Sureties are relievable against the penalties of 
 bonds (9). 
 
 25. An assignee of a bond, assigned in order to secure a debt 
 antecedent to the bond debt, without notice of fraud by the 
 assignor, will not be restrained from assigning it ; for a hona fde 
 purchaser of a bond without notice will not be restrained from 
 dealing with it (10). 
 
 26. Bonds given to restrain acts inseparably incident to an 
 
 (1) Stewart v. Bumball, 2 Vera. (4) Hardy v. Martin, 1 Cox, 26. 
 509 ; BicOahe v. Arundel, 1 Ch. Eep. (5) Eele v. Hele, 2 Ch. Ca. 88. 
 95 ; Davis v. Curtis, 1 Ch. Ca. 226. (6) Friend v. Burgh, Finch, 437. 
 
 (2) Clarhe v. Seton, 6 Ves. 411 ; (7) Duval v. Terry, Show. P. C. 15. 
 S. P. Ex parte Mills, 2 Ves. Jun. 301 ; (8) Chesterfield (Earl) v. Janssen, 
 Orosvenor v. Cook, Dick. 305 ; Gibson 2 Ves. Sen. 125 ; Sill v. Caillovel, 
 V. Egerton, Id. 408 ; Kettleby v. Ket- 1 Ves. Sen. 122, 4th Ed. 
 
 tleby and Bundle v. Pettit, Id. 514. (9) Cary, 12. 
 
 (3) Sloman v. Walter, 1 Bro. C. C. (10) Ashwinx.Bwrt(m,^3wc.{^.^.) 
 418. 319 ; 11 W. E. 103. 
 
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192 STOCKS, CONSOLS— POLICIES— DEEDS, INSTKUMENTS, ETCj 
 
 Pabt II. estate are idle bonds — as a bond from a tenant in tail not to 
 Sect. 7. ' commit waste (1), So of a recognizance conditioned that a tenant 
 ~ in tail should not bar the estate tail (2) ; such instruments are 
 
 not binding in Equity, and will, be decreed to be delivered up (3), 
 But Equity will quiet a person in possession of entailed lands, 
 to whom theyhave been given by the obligee of a bond — a tenant 
 in tail, who has taken other lands in lieu of the entailed lands, 
 which he has entered into, upon condition to permit that person 
 to enjoy the entailed lands — until six months after an infant tenant 
 in tail has come of age, with liberty to the infant then to shew 
 cause (4). 
 
 27. Bonds in restraint of marriage will be decreed to be 
 delivered up (5). Equity will relieve a husband, by repayment 
 from his wife's estate of the amount secured by a bond for pay- 
 ment of his wife's debts, entered into by him, upon which he has 
 been sued (6). 
 
 28. If a party has obtained the delivery up of promissory notes, 
 upon which his wife was liable' at her marriage, upon giving a 
 bond for the amount, and he plead infancy to an action on the 
 bond, he will be ordered to return the notes (7). 
 
 29. If by mistake, the name of an intended surety is omitted 
 from a bond, although the intended surety is not bound by Law; 
 on this security, yet Equity will compel him to give a fresh 
 one (8). 
 
 30. A Court of Equity will not, after a verdict at Law on a 
 bond, aid the obligor in giving him a discovery whether the bond 
 was not given upon an agreement to cohabit with the obligor 
 as his wife. The necessity for the interposition of a Court of 
 Equity is entirely taken away when all that matter that would 
 have avoided the bond might have been, and has, in fact, been 
 pleaded at Law (but the plea has not been supported) ; for a bond 
 in consideration of future cohabitation is void at Law. A plaintiff 
 in such a case has no right to call upon the defendant to discover 
 
 (1) Jerois v. Bruton, 2 Vern. 251. Snd Ed. 
 
 (2) Foolers Case, cited in Tatton v. (6) Lewis v. Nangle, Ambl. 151. 
 MoUeneux, Moore Rep. 809, 810. (7). Clarke v. CoUey, 2 Cox, 173. 
 
 (3) Jervis v. Bruton, supra, (8) Grosby v. Middleton, Preo. Ch. 
 
 (4) Thomas v. Gyles, 2 Vern. 232. 309. 
 
 (5) Balcer v. White, 2 Vern. 215, 
 
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STOCKS, CONSOLS— POLICIES— DEEDS, INSTEUMENTS. ETC. 193 
 
 that turpitude which was common to the plaintiff, the obligor, and Paut II. 
 
 to the defendant, the obligee ; and Equity cannot compel the seot. 7. 
 
 obligee to discover whether before the connection she capitulated 
 
 with the defendant at Law for this provision; that would make 
 
 her liable, not only to the reproach, but to the consequence of 
 
 having lived in this illicit course of life (1). But a bond to 
 
 secure provision for a woman and her children after cohabitation 
 
 has ceased, is good (2). So a voluntary bond given to a common 
 
 woman, after keeping her, will not be relieved against (3). It is 
 
 clear that a plaintiff in such a case is not entitled to relief (4). 
 
 The cases which have been determined against securities given 
 
 to common prostitutes go upon the circumstance of the securities 
 
 being given previous to the cohabitation, a consideration which, 
 
 being turjais in its nature, the Court has relieved against them. 
 
 In such a case as the above the bond is not given for a considera. 
 
 tion, but is voluntary ; the resort to the obligee being before the 
 
 bond was given, and past services are no consideration at Law 
 
 for future gifts (5). There is no principle in Equity which says 
 
 a man may not give a voluntary bond to a common prostitute 
 
 after the commerce had ; it would be going but a little further to 
 
 say that he could not give her money without her being liable 
 
 to be called upon for it (6). Equity has never laid down a rule 
 
 where any persons are unfit to receive a gift ; every person who 
 
 has a hand may receive one (7). 
 
 31. A Court of Equity will relieve against bonds executed for 
 a sum of money lost at billiards ; such bonds are void (8). So 
 the Court will relieve against a bond given for money won at 
 play ; and if a part of the money is paid, it will order the money 
 to be repaid (9). But Equity will not relieve against a bond 
 for money won at billiards, which has been assigned with the 
 privity of the obligor, and upon his assurance that the bond was 
 
 (1) Fmnc^o v. JBoUon, 3 Ves. 368. (5) lb. 
 
 (2) Knye v. Moore, 2 Sim. & S. 260 ; (6) lb. 
 S. C. sub nom. Knye v. Moseley, 3 (7) lb. 
 
 L. J. (Ch.).136;, Spicer v. Eayward, (8) Kenny v. Browne, 3 Ridg. P. C. 
 
 Prec. Cb. 114. 514. 
 
 (3) Hill V. Spencer, Ambl. 641, (9) Bawden v. Shadwell, Amb. 269 ; 
 App. N. 836, 2nd Ed. vide Wbodroffe v. Farnham, 2 Vern. 
 
 (4) lb. 291. . 
 
 O 
 
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194 SHIPPING, SHIPMENTS. 
 
 Paet II. valid, together with part payment of the money by the obh'gor, 
 Sect. 7. ^^^ entering satisfaction on a judgment obtained on the bond, 
 
 and accepting a new security for the remainder of the debt, at 
 
 the instance of the obligor (1). 
 
 32. A bond given to a counsellor to give him half of an estate 
 if he recover it, will be declared void (2). Bonds obtained by 
 undue parental influence will be set aside (3). 
 
 33. If the receipts and payments are on both sides, and the 
 transactions are complicated, and there is no settled account, a 
 Court of Equity will restrain an action on a bond to secure 
 moneys paid and advanced (4). 
 
 34. Although a bond be given with the intention that it shall 
 be used as a negotiable instrument, yet if there be nothing on 
 the face of the bond to shew such intention, the assignee of the 
 obligee takes it subject to the subsisting equities in favour of the 
 obligor ; a bond not being a negotiable instrument, although it 
 may upon its face be made so (5). 
 
 Sect. 8. Shi^ng, Shipments. 
 
 1. The effect of the Merchant Shipping Act, 1854 (17 & 18 
 Vict. c. 104), ss. 70, 71, upon the status of a mortgagee of a ship 
 is as follows : — It first declares that the mortgagee is not the 
 owner, then that the mortgagor has not ceased to be the owner, 
 then that the mortgagor shall be the owner, save so far as may be 
 necessary for making the ship an available security for the mort- 
 gage debt (6). Therefore a mortgagor of a ship remaiaing in 
 possession has full power to enter into contracts with respect to 
 the ship, provided they do not impair the security ; and in such a 
 case, the mortgagees being bound by the contract, the Court will, 
 at the suit of charterers, restrain the mortgagees from dealing with 
 
 • 
 
 (1) Kenny v. Browne, 3 Eidg. P. C. (5) Graham v. Johnson,, 38 L. J. 
 
 514. (OL) 374 ; L. E. 8 Eq. 36 ; 17 W. R. 
 
 (2) Bkapholme v. Hart, Gas. temp. 810 ; 20 L. T. (N. S.) 77. 
 
 Finch. 477. (6) Collms v. Lamport, 4 De G. J- 
 
 (3) ' Carpenter v. Heriot, 1 Eden, 338. & S. 500 ; 11 Jur. (N. S.) 1 ; 11 L- T. 
 
 (4) Edwards-Wood v. Baldwin, 4 (N. S.) 497; 13 W. E. 283; 34 L. J. 
 
 Giff. 613 ; 9 Jur. (N. S.) 1280. (Oh.) 196. 
 
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SHIPPING, SHIPMENTS. 195 
 
 the ship in any manner inconsistent with, or which might interfere Pakt II. 
 with or prevent the execution of the charterparty (1). Every ^seo™8. 
 contract entered into by the mortgagor in possession, is a contract 
 which derives validity from the declaration contained in the 
 statute of his continuing to be the owner. Such contract will, 
 however, enure for the benefit of the mortgagee, on his giving 
 notice to the party who is to pay the mortgagor under that con- 
 tract. Subject to the above qualification, if a mortgagor of a ship 
 does some act which prejudices or injures the security of a mort- 
 gagee, the declaration in the 17 & 18 Vict. c. 104, ss. 70, 71, that 
 the mortgagor is to be deemed the owner, ceases to have any 
 binding effect against the mortgagee, and he may exercise the 
 powers given to him by the mortgage (2). 
 
 2. Where the terms of a charterparty will not damage the 
 security, a Court of Equity will restrain any dealings with the 
 ship inconsistent with those terms (3). 
 
 3. Although the Court will not affirmatively enforce the specific 
 performance of a charterparty, yet it is implied in such a contract, 
 that if a charterer provides a cargo, the ship shall not be employed 
 for any other purpose, and a mortgagee with notice of a prior 
 charterparty effected with the mortgagor will, in general, be 
 restrained from doing anything to prevent its performance (4). 
 Where, however, a mortgagor in such case is unable to put the 
 ship in proper repair to make the voyage, or otherwise to perform 
 the contract, and' the charterer takes no steps for several months 
 witli respect to it, the contract is virtually at an end upon the 
 mortgagee taking possession of the ship, and the mortgagee will 
 not be restrained from exercising the powers contained in his 
 mortgage (5). 
 
 4. The deposit of the instrument of mortgage takes the ship 
 out of the order and disposition of a bankrupt, and constitutes a 
 creditor, equitable mortgagee of the ship (6). 
 
 5. It would appear that a mortgagee of a ship taking possession 
 
 (1) Collins Y. Lamport, i De G. J. (4) De Mattos v. Gibson, 4 De G. & 
 & S. 500 ; 11 Jur. (N. S.) 1 ; 11 L. T. J. 276 ; 5 Jur. (N. S.) 347, 555. 
 
 (N. S.) 497 ; 13 W. E. 283 ; 34 L. J. (5) lb. 
 
 (Ch.) 196. (6) Lacon v. Liffen, 9 Jur. (N. S.) 
 
 (2) lb. 477 ; 32 L. J. (Ch.) 25, 315 ; 4 Giff. 
 
 (3) lb. 75. 
 
 O 2 
 
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196 SHIPPING, SHIPMENTS. 
 
 Pabt II. of her, is entitled to use her and sail her, and upon doing so 
 Sect. 8. ' becomes an owner within the meaning of the Merchant Shipping 
 Act (17 & 18 Vict. c. 104), and subject to all the liabilities conse- 
 quent thereon ; and consequently a mortgagee of a ship is im- 
 properly restrained by injunction from using the vessel. The 
 Court, in dealing with the undertaking of the plaintiff as to 
 damages, will take into consideration the loss of profit arising from 
 non-user (1). But if a mortgagee of a ship take possession of 
 her and use her for the purposes of a speculation which results in a 
 loss, and subsequently sell her disadvantageously, he must himself 
 bear such loss, and be charged with the value of the vessel at the 
 time he took possession of her (2). 
 
 6. A mortgage of a ship at sea (the form of the Eegistry Act 
 being observed) is valid, and a Court of Equity will restrain an 
 improper indorsement on the certificate of registry of the ship (3). 
 
 7. The mortgagee of a ship, by bill of sale, who has omitted to 
 procure an indorsement thereof on the certificate of registry, 
 within the time required by the Eegistry Act after the return of 
 the ship to port, the registered owner having after that time 
 become bankrupt, has no equity, distinct from his legal rights, to 
 restrain the sale of the ship by the assignees, the title of the ship, 
 after the bankruptcy, depending upon the application of the rule 
 of Law with regard to order and disposition (4). 
 
 8. A mortgagee of a ship and assignee of all charterparties and 
 freight by way of further security, who takes possession of the 
 ship before any freight has become payable from the charterers to 
 the owners, is entitled to freight in priority to an assignee of 
 freight under a charterparty, who knew of the mortgage (5). 
 
 9. The title of a bond fide assignee for value of a bill of lading 
 must prevail over any claim by an unpaid vendor of the goods, and 
 the Court will restrain the delivery of the goods otherwise than to 
 
 (1) De Mattos v. Gibson, IJ. & H. (3) Thompson v. Smith, 1 Madd. 
 79 ; 7 Jur. (N. S.) 282 ; et vide Euro- 395. 
 
 pean and Australian Royal Mail Co. (4) Camplell v. Thompson, 2 Hare, 
 
 V. Royal Mail Steam Packet Go., 1 K. 140. 
 
 & J. 676. (5) Brown v. Tanner, L. E. 3 Ch. 
 
 (2) Marriott V. Anchor Reversionary 597 ; L. E. 2 Eq, 806 ; 12 Jur. (N. S.) 
 Co., 2 Giff. 457 ; 7 Jur. (N. S.) 713 ; 791 ; 14 W. E. 911. 
 
 39 L. J. (Ch.) 122, 571. 
 
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SHIPPING, SHIPMENTS. 197 
 
 the assignee or his order, and will apply the proceeds of the goods Part II. 
 in satisfaction of the assignee's claim (1). 'sb^'s. 
 
 10. The master of a vessel may sign bills of lading in favour of 
 the shipper of goods, without production of the mate's receipts 
 for the goods, if he is satisfied otherwise that the goods are on 
 board the vessel, and has no notice that any one but the shipper 
 claims any interest in thdm ; and the holder for value of bills of 
 lading so given has a better title than a prior indorsee of the 
 mate's receipts ; and a custom that a mate's receipts for goods 
 shipped on board a vessel are negotiable instruments, and pass the 
 property in the goods in the same manner as bills of lading, is 
 invalid as, against the, shipowner or master (2). 
 
 11. The guardian of a registered infant owner of a ship has no 
 power under the Merchant Shipping Act, sect. 99, to sell or mort- 
 gage the ship on behalf of the infant ; and a mortgagee in such a 
 case is not entitled to any other lien upon the ship, or the proceeds 
 of the ship, or policy moneys which may be substituted for the 
 ship, than the outlay which may have been advanced by him for 
 necessary repairs (3). 
 
 12. An owner of a ship will be restrained from enaploying her in- 
 consistently with or from doing any act inconsistent with a charter- 
 party (4). And that, pending an inquiry whether there is any danger 
 to the ship from the state of the cargo (5). The purchasers of a 
 ship with notice of a charterparty entered into by the master duly 
 authorized, will be restrained from interfering with the sailing of the 
 ship in pursuance of the charterparty (6). Parties who have mutually 
 bound themselves, will be restrained from doing any act inconsistent 
 with a charterparty which they have entered into lond fde (7). And 
 although a Court of Equity cannot decree the specific performance of 
 a charterparty, yet it can restrain the partiesfrom employing the ship 
 in a manner inconsistent with the rights under a charterparty (8). 
 
 (1) Coventry v. Gladstone, L. R. 4 
 
 (N. S.) 837 ; 30 L. J. (Ch.) l57 ; 9 
 
 Eq. 493 ; 16 W. R. 304. 
 
 W. ]{. 218 ; Eeriot v. Nicholas, 12 
 
 (2) Bathesing v. Laing, Laing v. 
 
 W. R. 844. 
 
 Zeden, L. R. 17 Eq. 92 ; 43 L. J. (Oh.) 
 
 (5) Eeriot v. Nicholas, supra. 
 
 233; 29L. T. (N. S.) 734. 
 
 (6) Messageries Imperiales Co. v. 
 
 (3) Michael v. Fripp, L. R. 7 Eq. 
 
 Baines, 11 W. R. 322. 
 
 95 ; 38 L. J. (Oh.) 29 ; 19 L. T. (N. S.) 
 
 (7) Sevin v. Deslandes, supra. 
 
 257; 17 W. R:23. 
 
 (8) Le Blanch v. Granger, 35 Beav. 
 
 (4) Sevin v. Deslandes, 7 Jur. 
 
 187. 
 
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198 , SHIPPING, SHIPMENTS. 
 
 Pabt II. 13. Although a part owner is entitled to an account of the past 
 
 Sect. 8. earnings of a ship, the ship will not be restrained from saihng 
 until security, according to the practice of the Admiralty Court, 
 has been given for the plaintiff's shares (1). The sailing of a ship 
 will not be restrained on the application of a part owner of a 
 smaller ascertained share, the proper application is to the Court of 
 Admiralty to compel the larger part owner to give security, a Court 
 of Equity only interferes where the shares are unascertained (2). But 
 still, in a proper case, it would seem that the Court has jurisdiction 
 to restrain a ship from sailing on the application of a part owner, 
 until security shall have been given -by the other part owners to 
 the amount of his share (3). The Court will not, at the suit of 
 charterers, restrain a shipowner from using the ship inconsistent 
 with the charterparty, if such an injunction would have the effect 
 of compelling the plaintiffs to enter into an agreement which they 
 had never entered into, and of forcing the defendant to enter into 
 the same agreement by putting a constraint upon him (4). 
 
 14. The lien which exists for general contribution upon the 
 goods of each freighter to individual loss by property thrown over- 
 board for the safety of the ship, under the right of the masters to 
 require security from each for his proportion, of the loss, is not to 
 be extended to an injunction against the master and shipowner, 
 restraining them from delivering the cargo, receiving the freight, 
 and parting with any share of the ship (5). 
 
 15. A master of a ship has no lien on the ship or freight for 
 wages, or for any expenditure which he may make in the ordinary 
 discharge of his duties as master, however necessary for the per- 
 formance of the voyage. But the case becomes one of ordinary 
 principal and agent where he makes' a special contract, in itself 
 ultra vires, in order to fulfil which, he incurs special expenses ; if 
 the owner adopts the benefit of that contract, he must, in Equity, 
 also bear its burthens (6). And in Equity the master is first 
 entitled out of the freight earned to be repaid the sums advanced, 
 
 (1) OastelU V. Oooh, 7 Hare, 89. (5) Eallett v. BousfieU, 18 Ves. 
 
 (2) Salloran v. Donal, 9 Ir. Eq. 187. 
 
 Eep. 217. (6) Bristow v. Whitmme, 9 H. L. 
 
 (3) Christie v. Craig, 2 Mer. 137. 0. 391 ; Job. 96 ; 28 L. J. (Oh.) 
 
 (4) Adamson v. Oill, 16 W. E. 639, 801. 
 306 ; 18 L. T. (N S.) 278. 
 
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SHIPPING, SHIPMENTS. 199 
 
 and to be indemnified against bills drawn by him upon the owner, Pabt il. 
 to meet the said expenditure, and the owner or his mortgagee is '&^™'8. ' 
 only entitled to the net freight after deducting these charges (1). 
 If shipowners have had the benefit of a contract by the master, 
 though not accepted by them, yet they are chargeable in Equity, 
 to the extent of the benefit they have derived therefrom (2). 
 
 16. The depositees of a charterparty to secure a balance due by 
 a depositor, are entitled to the whole freight due under the 
 charterparty, as against a party who is entitled to part of the 
 freight, but who permits the depositor (entitled to the other part) 
 to hold himself out as entitled to the whole (3). If that party, in 
 such a case, neglect to undeceive the depositees on the point as 
 soon as he finds out that they have taken a security upon the faith 
 of such apparent title, he is precluded from afterwards asserting 
 any equity inconsistent with that title (4). 
 
 17. A master of a ship, who, having authority to employ the 
 vessel on freight to the best advantage, but not to purchase a 
 cargo on the owner's account, and being unable to procure re- 
 munerative freight, loads the ship with a cargo of his own, is liable 
 to account to the owners for all profits made by the sale of the 
 cargo, and not merely for a proper freight; and the general 
 principle that a trustee cannot make a profit for himself by the 
 use of the trust property, applies to an agent intrusted with a ship 
 or other chattel for the purpose of using it for the owner's 
 benefit (5). 
 
 18. If a vessel about to sail is advertised as a general ship, an 
 intending shipper is not bound to inquire as to the existence of 
 any charterparty, and a person who, without notice of any charter- 
 party, has placed goods on board a vessel so advertised, is entitled 
 to have his goods returned to him, if the captain refuse to sign 
 bills of lading, except so as to be bound by a charterparty of 
 which he knows nothing, and of which he has had no notice 
 express or implied (6). 
 
 (1) Bristow Y. Wliitmore, 9 H. L. (4) lb. 
 
 0. 391 ; Job. 96 ; 28 L. J. (Ch.) 801. (5) Shallcross v. Oldham, 2 J. & H. 
 
 (2) Ashmall v. Wood, 2 Jur. (N. S.) 609. 
 
 827. (6) Peek v. Larsen, L. E. 12 Bq. 
 
 (3) Mangles v. Dixon, 1 Mac. & G. 378 ; 25 L. T. (N. S.) 580 ; 40 L. J. 
 437 ; 1 H. & T. 542. (Ch.) 763 ; 19 W. R. 1045. 
 
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200 SHIPPING, SHIPMENTS. 
 
 Part II. 19. The Court of Chancery has q, statutory jurisdiction to settle 
 
 Sect. 8. the amount of the liability of the owners of a vessel for loss of 
 life occasioned by collision with another vessel at. sea, and to dis- 
 tribute the same among the persons entitled, and to restrain 
 actions against the owners touching the same matters (1). A part 
 owner, who is a ship's husband, has not the right, as against other 
 part owners, of making an assignment of the whole freight to 
 secure moneys advanced to him, and the legal right to receive the 
 freight is in the captain ; and, in the absence of sufficient allega- 
 tion and proof that he is about to misapply it, a Court of Equity 
 will not grant an injunction to prevent the captain from receiving 
 the freight, upon the captain undertaking not to apply the freight 
 to any other than the proper purposes (2). If ship's husbands, 
 who are part owners, privately stipulate with charterers for a 
 commission for themselves, they will be restrained from interfering- 
 with the sailing of the ship after their dismissal as ship's 
 husbands, upon the discovery of their underhand bargain by the 
 other part owners (3). 
 
 20. Under the 17 & 18 Vict. c. 104, s. 79, the registry of a bill 
 of sale which, though purporting to be valid, so that the registrar 
 has no alternative but to register it, is, in fact, invalid, gives no 
 title, even at Law, to the person thereby registered as sole owner 
 of the ship (4) ; and the owner, upon proving that no land fide sale 
 of the vessel has taken place, is entitled to an injunction to restrain 
 dealing with the vessel, and to the net proceeds of a sale of the 
 vessel (5). And although it is doubtful whether under the 
 Merchant Shipping Acts, 1854, 1855 (17 & 18 Vict. c. 104, s. 79, 
 and 18 & 19 Vict. c. 91, s. 10), the Court of Chancery has juris- 
 diction to interfere with a title acquired at Law by the registration 
 of a valid bill of sale of a ship, yet the 65th section of the 
 17 & 18 Vict. c. 104, does not deprive that Court of its ordinary 
 jurisdiction to protect property during litigation (6).' And if a 
 
 (1) Qlaholm v. Barker, L. E. 1 (2) Quion v. Trask, 1 De G. P. & J- 
 
 Ch. 223 ; L. R. 2 Eq. 598 ; 34 Beav. 373 ; 3 Jur. (N. S.) 185. 
 305 ; vide 17 & 18 Vict. cc. 104, 120 ; (3) Brennan v. Freston, 2 De G. M. 
 
 25 & 26 Vict. c. 63; 9 & 10 Vict. c. & G. 813. 
 93 ; General Iron Screw Collier Co. v. (4) Orr v. Dickenson, Job. 1. 
 
 Sckurmanns, 1 J. & H. 180 ; 4 L. T. (5) lb. 
 
 (N. S.) 138 ; 8 W. E. 732. (6) lb. 
 
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SHIPPING, SHIPMENTS. 201 
 
 person having no title to a ship procures it to be registered in his Part II. 
 name, the 'Court will compel him to retransfer it to the rightful gj,0T! 8. 
 owner, and account for the earnings, even though there has been 
 no fraud, and notwithstanding the 17 & 18 Vict. c. 104 (1). 
 
 21. The policy of the Ship Eegistry Act (8 & 9 Vict. c. 89) in 
 disregarding interests not appearing on the register, is inapplicable 
 both to the money arising from the sale of a ship and to the 
 produce of the freight; and where a party who appears on the 
 registry to be the absolute owner of a ship enters into an agree- 
 ment for valuable consideration, admitting he is a trustee, and 
 engaging to sell the ship and hand over the produce to the 
 true owner, the Court — notwithstanding the 8 & 9 Vict. c. 89 
 (ss. 34-39) prevents the cestuis que trust from enforcing any 
 right against the ship itself — will enforce the agreement (2). 
 And the cestuis que trust are entitled to the puvchase-mouey of 
 the ship sold by their trustee (3) ; and the Court will also restrain 
 the purchaser from dealing with the shares of a ship, or indorsing 
 the transfer on the certificate of the registry, so as to insure the 
 effective determination of the questions at the hearing (4). 
 
 22. The Ship Eegistry Act (8 & 9 Vict. c. 89) does not prevent 
 a lien being created on the certificate of original registry of a ship, 
 deposited by an unregistered owner to secure advances for the use 
 of the ship ; and a Court of Equity will restrain a party who, 
 without a lawful title, procures himself to be registered as owner 
 of a ship, from prosecuting a complaint made under sect. 30 
 against a party claiming such a lien, to compel him to deliver up 
 the certificate of the ship's registry (5). 
 
 23. If a bill of sale of shares of a ship shew by indorsement it 
 is not absolute but as a mortgage, but the registry is of an 
 absolute sale, the original owner is entitled to redeem, and the 
 Court will restrain a purchaser from the assignee, from registering 
 his bill of sale (6). 
 
 24. The whole frame of the Ship Eegistry Acts negatives any 
 
 (1) Hdlderness v. Lamport, 29 Beav. (4) lb, 
 
 129. (5) Clarhe v. Batters, 1 K. & J. 
 
 (2) Armstrong v. Armstrong, 21 242. 
 
 Beav. 78 ; 1 Jur. (N. S.) 859 ; 24 L. J. (6) Wliitfield v. Parfitt, 4 Tie G. & 
 
 (Ch.) 659. Sm. 240. 
 
 (3) lb. 
 
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202 SHIPPING, SHIPMENTS. 
 
 Part II. equity resulting out of the doctrine of notice, and an unregistered 
 '^Seo^s. ' agreement therefore, with the registered owner of a ship, which 
 the owner subsequently transfers for value to another person who 
 has notice of the agreement, cannot be enfoi-ced either as against 
 the ship or its proceeds ; but still it may be tliat upon such a 
 contract an action for damages can be sustained, and that actual 
 fraud in such a case would be relievable in Equity (1). However, 
 an alleged fraud by a purchaser, in obtaining possession of a bill 
 of sale of a ship before the payment of the consideration, and by 
 that means procuring himself to be made the registered owner, 
 cannot be relieved against, by preventing the sailing of the ship 
 by the purchaser (2). But now, by the operation of the Merchant 
 Shipping Act Amendment Act, 1862 (25 & 26 Vict. c. 63), s. 3, 
 equities may be enforced against owners and mortgagees of ships, 
 iu respect of their interest therein, in the same manner as equities 
 may be enforced against them in respect of any other personal 
 property (3). 
 
 25. A Court of Equity will declare whether the transitus of 
 merchandize at any time was then pending, and whether a notice 
 of stoppage in transitu was effectual, and will, if such notice is 
 effectual, make a declaration that, in Equity, the vendor of the 
 goods giving the notice is entitled to a valid and subsisting charge 
 for the money due in respect of the price of the goods, and will 
 restrain any action to recover such moneys (4). And such a 
 Court will in a proper case exercise jurisdiction by stopping goods 
 in transitu, and restrain the sailing of the ship with the goods on 
 board (5). 
 
 26. If 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 Court to restrain the captain 
 from selling the cargo. But before a Court of Equity will grant 
 such assistance, the plaintiffs must shew their title to the goods, 
 and must settle with the captain for what is due to him, and 
 
 (1) McCalmont v. Bankin, 2 De G. Eaymen, 2 H. & 0. 918. 
 
 M. & G. 403 ; 8 Hare, 1. (4) Berndtson v. Strang, L. E. 4 Bq. 
 
 (2) Follat v. Delany, 2 De G. & 481 ; 15 W. B. 1168. 
 
 Sm. 235. (5) Newton v. Eubhack, 2 W. B. 
 
 (3) Vide Lacon v. lAffen, 4 Giff. 75 ; 339. 
 32 L. J. (Oh.) 25, 315 ; Stapkton v. 
 
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SHIPPING, SHIPMENTS. 203 
 
 exonerate him from his contract to deliver to deliver the goods at Past II. 
 their place of destination, and from all liability on the bills of sect, 8. 
 lading (1). 
 
 27. An assignee of freight, giving notice of the assignment to 
 the brolter of the assignor, to whom the freight is to be paid, is 
 entitled to restrain the payment of the same to the assignees in 
 bankruptcy of tbe owner, for, after such assignment and notice, 
 the freight is no longer in the order and disposition of the owner, 
 and consequently does not, on his subsequently becoming bankrupt, 
 pass to his assignees (2). And where a trader assigns a debt, the 
 only person to whom notice of the assignment need be given, in 
 order to vest a good equitable title in the assignee, is the party 
 from whom the trader was to have received payment of the money. 
 In other words, the party holding the property at tlie order and 
 disposition of the trader (3). ' 
 
 28. A Court of Equity has jurisdiction to restrain proceedings 
 in the Admiralty Court on a bottomry bond, with the view to the 
 administration of justice in a more convenient form ; and it will 
 grant an injunction on that ground, where the proceedings in the 
 Admiralty Court are not framed in the most effectual manner for the 
 attainment of their purpose, and where the questions (particularly 
 one of apportionment) are such as can be better tried in Equity (4). 
 So such a Court possesses and will exercise jurisdiction over a 
 bottomry bond in a case of fraud, and will, for that purpose, restrain 
 proceedings upon the bond in the Admiralty Court ; and it is not 
 necessary, for the purpose of supporting an interlocutory injunc-, 
 tion of that kind, that the Court should find a case which would 
 entitle the plaintiff to relief at all events ; it is sufficient if the 
 Court finds, upon the evidence then before it, a case which makes the 
 transaction a proper subject of investigation in a Court of Equity(5). 
 
 29. A bottomry bond executed by the master of a ship cannot 
 be supported against the owners and their mortgagee claiming 
 under a mortgage prior to the bond (6). 
 
 (1) Bayne v. Benedict, 10 L. J. 409; 5 Jm-. 262; affirmed on appeal, 
 (N. S.) Ch. 297 ; 5 Jur. 598. 3 Aug. 1841. 
 
 (2) Oardner v. Lachlan, 4 My. & (5) Qlascott v. Lang, 8 Sim. 358 ; 
 Or. 129 ; 8 Sim. 123 ; 6 Sim. 407. 3 My. & Cr. 451. 
 
 (3) lb. , (6) Dodsm, v. Lyall, 2 Ph. 323, n. ; 
 
 (4) Duncan v. McCalmont, 3 Beav. 3 My. & Or. 453, n. 
 
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204 SPEOIPIO PBRPOEMANCB. 
 
 Part II. Sect. 9. Specific Performance. 
 
 Chapter II. 
 
 1. An injunction will not be granted against the sale of goods 
 
 or any chattels where speciiic performance of a contract for their 
 sale cannot be enforced (1). So if there be a contract with refer- 
 ence to goods, which is of such a nature that Equity will not inter- 
 fere to prevent anything being done which would or might prevent 
 the performance of that contract, there will also be no injunction 
 against the sale of the goods (2). Equity will not permit the 
 violation of an agreement or contract for the exclusive right of 
 sale and exhibition of speciiic goods in a space in a building over 
 which the party giving that right has entire control (3). 
 
 2. A Court of Equity will not compel, nor will it grant an in- 
 junction to enforce, the performance of a contract for an agency (4). 
 So it is impossible to give any relief where the agreement is one 
 which, from its nature, cannot be specifically enforced, as, for 
 instance, where it is contrary to one of the general principles of 
 the Court, namely, that the Court cannot enforce specific perform- 
 ance of a contract by piecemeal (5) ; or where the terms of the 
 agreement are too indefinite to be enforced in a specific per- 
 formance suit (6). Where there has been an agreement — a direct 
 and positive engagement — by a defendant, which goes to the 
 root of the whole agreement, and the defendant has failed to 
 perform his part, and the plaintiff has also failed to perform his 
 part, a Court of Equity will restrain the defendant from bringing 
 an action against the plaintiff ibr non-performance of his part 
 until he (the defendant) shall have performed his own part ; and 
 that, although the Court has no jurisdiction to compel the 
 defendant to specifically perform his part (7). 
 
 (1) Fothergill v. Rowland, 22^M .'R. ner, 19 W. B. 707; L. E. 12 Eq. 18; 
 42; L. E. 17 Eq. 132 ; 29L.T.(N.S.) 40L. J.CCh.)5J5; 24L.T.(N.S.)861; 
 414;43L. J. (Oh.)252; D«sS"eai!/jco<e Greenhill v. Isle of Wight (Newport 
 V. North Staffordshire Eailw. Co., 2 Junction) Bailw. Co., 23 L. T. (N. S.) 
 M. & G. 112. 885 ; 19 W. R. 345. 
 
 (2) lb. (6) OreenhillY. Isle of Wight (Nem- 
 
 (3) Altman v. Soyal Agnarium port Junction) Bailw: Co., supra. 
 Society, L. E. 3 Ch. D. 228. (7) Acraman v. Price, Davm v. 
 
 (4) Chinnoch v. Sainshury, 6 Jur. Price, 18 W. E. 540; 19 W. R. 36i; 
 (N. S.) 1318 ; 30 L. J. (Ch.) 409. 24 L. T. (N. S.) 487. 
 
 (5) Merchant Trading Go. v. Ban- 
 
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( 205 ) 
 
 CHAPTER III. 
 
 The Doctrines and Pbinciples as Applicable to the 
 Incidents of Peopekty (Eeal and Personal). 
 
 Sect. 1. Light, Light and Air — Easements — Tresjpass. Pabt il. 
 
 1. The foundation of the jurisdiction in Equity to interfere by Light, Light 
 way of injunction, in cases of ancient lights, is, that injury to pro- 
 perty which renders it in a material degree unsuitable for the 
 purposes to which it is applied, or to lessen considerably the en- 
 joyment which the owner has of it. Such an injury is considered 
 by a Court of Equity to be incapable of compensation in 
 damages (1). But it would appear, that where the abridgment of 
 light complained of does not materially interfere with the comfort 
 of the persons complaining, and does not materially diminish the 
 suitableness of premises for the present purposes to which they 
 are applied, the Court has no jurisdiction to interfere by injunc- 
 tion, on the ground of a diminution of light, which, having regard 
 to a future possible destination of the property, may materially 
 diminish its value (2). And it is not in every case in which an 
 action can be maintained for the obstruction of ancient lights, that 
 an injunction will be granted by a Court of Equity; but the 
 standard of the amount of damages that calls for the exercise of 
 the jurisdiction has not been defined with any certainty ; however, 
 the obstruction must be one that diminishes the value of the 
 premises for the purposes for which they are used at the time (3). 
 There must be substantial damage (4), such a material diminution 
 of light as substantially to affect the comfort of the residents on 
 
 (1) Jackson, v. Newcastle (Duhe), (2) lb. 
 
 3 De G. J. & S. 275; 10 Jur. (N. S.) (3) Jachson v. Newcastle {Duke of) 
 
 688 ; 10 L. T. (N. S.) 635 ; 33 L. J. supra. 
 
 (Oh.) 698 ; Yates v. Jach, L. E. 1 Ch. (4) Eohson v. Whittingham, L: E. 
 
 295 ; 12 Jur. (N. S.) 305. 1 Oh. 442. 
 
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206 LIGHT, LIGHT AND AIR— EASEMENTS— TRESPASS. 
 
 Paet II. the premises (1). . But a man is entitled to the preservation of 
 "^Seot.^!. " liis ancient lights, even though he were not at the time using 
 
 them for purposes requiring the full amount of light which he 
 
 claims (2). 
 
 2. However, a Court of Equity interferes by injunction to prevent 
 an injury in respect of a legal right, simply on the ground of the 
 damage which may be produced to property, and the jurisdiction 
 of the Court is not confined to restraining injury to the enjoyment 
 and comfort in the occupation of property, and therefore it is not 
 necessary that a party filing a bill for an injunction to restrain 
 such an injury should be in the actual occupation of the property, 
 nor is it necessary that he should continue to occupy it (3). 
 
 3. The Court will interfere to restrain apprehended injury 
 where it is clear that the act intended to be committed would 
 injure or destroy a clear legal right. And an obstruction of a 
 lessee's ancient lights by the reversioner, however slight, which 
 would injure the lessee in his business, will be restrained (4). 
 
 4. It makes no difference whatever whether a person has ac- 
 quired the right to light by twenty years' user, or has acquired it 
 by the disposition of the owner of the dominant and servient tene- 
 ment, in either case the right is exactly the same (5). If the grant 
 is accompanied by a covenant for quiet enjoyment, that covenant 
 does not increase or enlarge the right of the covenantee, so as to 
 
 ^ entitle him to an injunction in Equity to restrain an obstruction 
 
 where the damage is not sufficient to enable him to maintain an 
 action at Law ; but it is otherwise where the right to light claimed 
 is not the ordinary easement, but one that comes into existence 
 by an express covenant; in that case a Court of Equity will 
 grant an injunction, without regard to the amount of damage (6). 
 
 5. If there is no case for an immediate injunction, the plaintiff 
 
 (1) Kelk V. Pearson, 19 W. R. 269, (5) Leech v. Schweder, L. B. 9 Ch. 
 655; L. R. 6 Ch. 809 ; 23 L. T. 358; 463, 472, 475; 22 W. R. 633, 293; 
 24 L. T. (N. S.) 890. 43 L. J. (Ch.) 487, 232; 30 L. T. 
 
 (2) younge v. Simper, 21 W. R. (N. S.) 586. 
 
 135. (6) lb. ; vide Tipping v. Sckersley, 
 
 (3) Wilson V. Towend, 1 Dr. & Sm. 2 K. & J. 264; Leech v. 
 
 324; 6 Jur. (N. S.) 1109. L. R. 9 Ch. 463; Manners (Lord)^. 
 
 (4) Berz v. Onion Bank of London, Sutton, 1 Ch. D. 673. 
 2 Giff. 686 ; 1 Jur. (N. S.) 127. 
 
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LIGHT, LIGHT AND AIE-EASEMBNTS— TRESPASS. 207 
 
 may be put upon terms to try the legal right (1). Or an injunc- Part II. 
 tion may be granted to prevent the obstruction of ancient lights, seot. i. 
 subject to the plaintiff establishing his right to the easement in an 
 action (2). And in a case where the nature of the alleged obstruc- 
 tion does not require the preventive interposition before a trial at 
 Law, and the legal right is doubtful, the Court will refuse an in- 
 junction (3). There cannot be a perpetual injunction in regard to 
 lights in a case of disputed title, until the question has been 
 settled at Law (4). Nor will an injunction be granted where the 
 right is doubtful and the injury trivial, or easily compensated in 
 damages (5). But the Court will not grant an injunction against 
 darkening ancient windows in every case affecting the value of 
 premises that will support an action; the effect must be that 
 material injury, amounting to nuisance, which should not only be 
 redressed by damages, but upon equitable principles prevented (6). 
 6. A plaintiff coming to the Court for an injunction to restrain 
 an erection of new buildings by his neighbour, on the ground of 
 interference with his light and air, must shew that his own resi- 
 dence will, by the obstruction, be rendered substantially less com- 
 fortable for purposes of occupation. But though an injunction 
 be refused in sudh a case, the Court, if it appear that damages 
 have been sustained, may, if it think fit, exercise its statutory 
 jurisdiction (7), and direct an inquiry as to damages (8). The 
 Court will not grant an injunction to stay building in a case 
 of mere injury or inconvenience to property, or persons adjoin- 
 ing, or otherwise, except by agreement, or where the building 
 is of such a nature as to stop up ancient lights (9). And it is 
 not sufficient to say that a proposed building would alter the 
 plaintiff's lights, for the law says that a building must be so near 
 as to create a nuisance ; and although it may be true that the 
 value of the plaintiff's house might be reduced by rendering the 
 
 (1) Smith V. Elger, 3 Jur. 790. (7) Vide ante, p. 97, n. '(2). 
 
 (2) Sutton Y. Montfort, 4 Sim. 559. (8) Johnson v. Wyatt, 2 De G. J. & 
 
 (3) Wystanley v. Lee, 2 Sw. 333. S. 18 ; 33 L. J. (Ch.) 394 ; 9 Jur. 
 
 (4) Irwin v. Dixion, 9 How. 10 (N. S.) 1333; vide Swaine v. Great 
 (Amr.). Northern Sailw. Co., 10 Jur. (N. S.) 
 
 (5) Atkins v. OMlson, 7 Met. 398 191. 
 
 (Amr.). (9) Morris v. Lessees of Lord Berhe- 
 
 (6) Att.-Gen. v. Nichol, 16 Ves. 338. ley, 2 Ves. Sen. 453. 
 
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208 LIGHT, LIGHT AND AIR— EASEMENTS— TRESPASS. 
 
 Paet II. prospect less pleasant, that is no reason to hinder a man from 
 Sect. 1. building on Ids own ground (1)'. Although the Court will not 
 grant an injunction to restrain an obstruction of ancient lights, 
 merely because the effect of such obstruction is to render the 
 plaintiff's house less cheerful ; yet if the effect is to cause material 
 annoyance to the inmates of the house in the ordinary occupations 
 of life, and to deprive them of such an amount of light as they 
 might reasonably calculate on enjoying, then the Court will inter- 
 fere (2). 
 
 7. It is not every impediment to the access of light or of air 
 which will warrant the interference of a Court of Equity by way 
 of injunction, or even entitle the party alleging himself to be 
 injured, to damages at Law. In order to found a title to relief in 
 Equity, or even at Law, in respect of such an impediment, some 
 material or substantial injury must be established, and the onus of 
 proving the injury rests, of course, with the plaintiff (3). 
 
 8. An owner of ancient lights is entitled, not only to sufficient 
 light for the purpose of his theU business, but to all the light 
 which he has enjoyed previously to the interruption sought to be 
 restrained. And where an injunction is granted against obstructs 
 ing the ancient lights of business premises, the Court ought not to 
 make any declaration narrowing, or appearing to narrow, the right 
 of the plaintiff to the quantity of light theretofore used by him 
 for the purpoge of his business (4). But the quantum of injury 
 to ancient lights necessary, before a Court of Equity will interfere 
 by granting relief generally, and with reference to a mandatory 
 injunction, is not to be estimated by a limitation with reference to 
 any particular use to which the premises were put at the date of 
 the obstruction complained of (5). 
 
 9. The Court will interfere to protect a plaintiff whose personal 
 comfort and enjoyment, and a fortiori one whose trade or business 
 is prejudicially affected by the diminution of light, but if the ob- 
 struction has been partly completed, and no mandatory injunction 
 
 (1) Fishmongers' Co. v. East India v. Oorbett, 4 De G. J. & S. 764, 770; 
 Co., Dick. 164. H Jur. (N. S.) 719. 
 
 (2) Clarke v. Clark, L. R. 1 Oh. (4) Tates y. Jack, L. H. 1 Cb. 2ii; 
 16 ; 11 Jur. (N. S.) 914 ; 35 L. J. (Ch.) 12 Jur. (N. S.) 305. 
 
 151. (5) Calcraftv. Thompson, 15W.i- 
 
 (3) Curriers' Co. (Master, &c. of) 387. 
 
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LIGHT, LIGHT AND AIR— BASEMENTS— TRESPASS. 209 
 
 is prayed for, the Court will, under its statutory jurisdiction (1), Paet ll. 
 assess damages by way of compensation (2). But a suit to restrain sect. i. 
 the invasion of ancient lights by mandatory injunction (the " 
 obstruction being completed before the filing of the bill), cannot 
 be sustained in the Court of Chancery for the purpose of recovering 
 damages for the invasion, if the injunction is refused (3). 
 
 10. Where there is, substantially, interference with comfort, 
 and diminution of light for carrying on business, so that substantial 
 damages would be given at Law, the Court will restrain injury to, 
 ancient lights, and the fact that the amount of compensation is 
 capable of being ascertained by a jury, does not prevent the Court 
 from acting on the ground of irreparable mischief. In such a 
 case there is no essential difference in the amount of light and air 
 that may be claimed in a town or in the country, and the Court 
 will interfere, though the amount of sky area abstracted is small, 
 if its proportion to the previous amount of sky is such that the 
 abstraction causes inconvenience. To establish a sufficient defence 
 to a case of alleged injury of this description, the defendant must 
 shew that for whatever purpose the plaintiff may wish to employ 
 the light whilst the house retains its original character, there will 
 be no material interference with it, and the following grounds of 
 defence: — first, that the plaintiff will have, when his injury is 
 complete, as much light and air as other persons have for the 
 same purposes ; secondly, that the plaintiff might avoid the injury 
 by enlarging his windows ; thirdly, that the plaintiff has been 
 accustomed to use blinds to his windows ; fourthly and fifthly, 
 that a room used for a special purpose is not well adapted to that 
 purpose, and that it has been soused without the_ knowledge of the 
 defendant; and sixthly, that the defendant intends to cure the 
 evil by building with glazed tiles, or other means for improving 
 the light, — are insufficient (4). 
 
 11. It would seem that shutting out a man's house from the 
 
 (1) Vide ante, p. 97, ti. (2). 559 ; 15 W. R. 387. 
 
 (2) Martin v. Headon, L. R. 2 Bq. (4) Dent v. Auction Mart Co., Pil- 
 425 ; 12 Jur. (N. S.) 387 ; 14 W. R. grim v. Auction Mart Co., Mercers' Co. 
 723; 35 L. J. (Ch.) 602; 14 L. T. v. Auction Mart Co., L. B. 2 Eq. 
 (N. S.) 585. 238 ; 12 Jur. (N. S.) 447 ; 14 W. R. 
 
 (3) Cakraft v. Thompson, 35 Beav. 709. 
 
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210 LIGHT, LIGHT AND AIR— BASEMENTS— TRESPASS. 
 
 Past II. view of passers by is not a legal injury ; and the erection of a 
 Sect. 1. building will not be restrained merely because it injures the 
 plaintiff by obstructing the view of his place of business (1). And 
 the Court wiU not restrain the erection of buildings which would 
 intercept a prospect. There is no general rule of Common Law 
 which says that building so as to stop another's prospect is a 
 nuisance (2). The Court, in granting an injunction to restrain 
 the building of houses which would obstruct the light and air so as 
 to render a plaintiff's house uncomfortable to such a degree as 
 would entitle him to recover substantial damages at Law, will in 
 no degree be influenced by the consideration of any inconvenience 
 from the loss of a prospect (3). 
 
 12. In cases of obstruction of ancient lights, where the Court is 
 called upon to exercise its power of mandatory injunction, ordering 
 the defendant to restore things to the condition in which they 
 were before the old building was removed ; each case must be 
 decided upon its own peculiar circumstances (4). There is no 
 rule which prevents the Court from granting a mandatory injunc- 
 tion where the injury sought to be restrained has been completed 
 before filing the bill ; and there is no difference in this respect 
 between injury to easements and to other rights, the mere fact 
 that the damage created by obstruction of light is completed 
 before the bill is filed, is not of itself a sufficient ground for 
 refusing a mandatory injunction ; and in a case of obstruction of 
 ancient lights, as in any other case of injury to easements, the 
 Court looks to the particular circumstances of each case, but it 
 will interfere by way of mandatory injunction, only in cases where 
 extreme or very, serious damage will ensue from non-interfe- 
 rence (5). A Court of Equity will not interfere by mandatory 
 injunction to preserve a right to light and air, unless there has been 
 
 (1) Butt V. Imperial Gas Light Co., (3) Kdk v. Pearson, 23 L. T. (N. S.) 
 L. R. 2 Oh. 158 ; 14 W. R. 508; 15 458; 19 W. R. 269. 
 
 W. R. 92; et vide Smith v. Owen, (4) Isenhurg v. East India House 
 
 14 W. R. 422. Estate Co., 3 De G. J. & F. 263; 10 
 
 (2) Att.-Gen. v. Doughty, 2 Ves. Jur. (N. S.)221; 33 L. J. (Ob.) 392; 
 Sen. 453 ; and see Fishmonger^ Co., v. 9 L. T. (N. S.) 625 ; 12 W. B. 460. 
 East India Co., 1 Dick. 165 ; see also (5) Durell v. Pritehard, L. R 1 Ch. 
 AUred's Case, 9 Rep. 58 a ; Webb v. 244 ; et vide Calcraft v. ITiompson, 35 
 Bird, 10 C. B. (N. S.) 276. Beav. 559 ; 15 W. B. 3S7. 
 
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LIGHT, LIGHT AND AIE— EASEMENTS— TRESPASS. 211 
 
 a substantial, material, or serious infringement of such right (1). Part il. 
 And if the inconvenience is not sufficiently serious, neither a sect. i. 
 mandatory injunction nor an inquiry to assess damages will be 
 granted (2). Although the Court has jurisdiction to grant a 
 mandatory injunction, it wiU not do so where the owner of the 
 property injured by the material obstruction of the access of light 
 and air to that property, has himself treated the case as one for 
 Cotnpensation by datnageS. But the Court having that jurisdiction 
 will direct an inquiry to assess damages, and will not leave the 
 plaintiff to his remedy by action (3). 
 
 13. A Court of Equity will not restrain the construction of 
 works obstructing lights, where the title to the property sought to 
 be protected has not been accepted by the plaintiff. The plaintiff 
 might, after obtaining the injunction, reject the title altogether, 
 and that would not be consistent with the dignity of the 
 Court (4). 
 
 14. So a tenant under an agreement for a lease is not entitled 
 to an injunction to restrain his lessor from obstructing the ancient 
 lights on the premises comprised in the agreement, unless he also 
 ask to have the agreement specifically performed (5). 
 
 15. If the owner of a dominant tenement were, in the course 
 of rebuilding, materially to alter his ancient lights, and to open 
 new lights upon an additional floor, after communication with the 
 owner of the servient tenement, and with the knowledge and under 
 the inspection of the surveyor of the owner of the servient 
 tenement, but without any express agreement; in Equity, the 
 lights, as altered, would not be interfered with, on the ground of 
 acquiescence alone (6). But in the absence of such acquiescence, 
 the owner of the dominant tenement may alter ancient lights 
 and add new ones, and still be entitled to restrain the obstruction 
 of the ancient lights, by the servient tenement (7) ; and he will be 
 
 (1) Seadel y. Perry, 17 W. B. 185 ; (5) Fox v. Purssell, 3 Sm. & G. 242. 
 19 L. T. (N. S.) 760. (6) Ootching v. Bassett, 32 Beav. 
 
 (2) Sparling v. aarsm, 17 W. E. 101 ; 9 Jur. (N. S.) 590. 
 
 518. (7) SiaJght v. Burn, L. E. 5 Ch. 
 
 (3) Gort (Viscountess) V. Clark, 18 163; 39 L. J. (Oh.) 298; IS W. R. 
 L. T. (N. S.) 343 ; 16 W. E. 569. 243 ; 22 L. T. (N. S.) 831 ; vide 
 
 (4) Beat?!, v. Maydew, 13 W. E. Tapling v. Jone'^, 11 IL L. 0. 290. 
 199. 
 
 P 2 
 
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212 LIGHT, LIGHT AND AIR— EASEMENTS— TEESPASS. 
 
 Part II. SO entitled where he has materially enlarged his ancient Hghts 
 Sect. 1. within a recent period (1). 
 
 16. A plaintiff who has himself, in an insignificant degree^ 
 obscured the light and air to his own dwelling-house, is not 
 thereby, disentitled to an injunction to restrain a defendant from 
 erecting a building, so as seriously to diminish the supply of light 
 and air (2). 
 
 17. Delay in moving for a decree — for instance, for three years 
 after filing the bill, together with mutual acts of injury — dis- 
 entitles to relief in Equity (3). So a delay of seven months, 
 coupled with an offer at one time by the plaintiff to accept a sum 
 as compensation, and the fact that very great damage would be 
 caused to a defendant by an injunction, will disentitle a plaintiff to 
 a mandatory injunction (4). But the Court will direct an inquiry 
 as to the amount of damage sustained by the plaintiff (5). But 
 a month's delay after the completion of the obstruction to the 
 access of light and air, is not such a laches or acquiescence on 
 the part of the owner of the adjoining property, when he is not 
 himself in possession or occupation of it, as to disentitle him to a 
 mandatory injunction (6). 
 
 18. If an offer is made which will have the effect of putting 
 a plaintiff in as favourable a position as before the erection of the 
 building or obstruction complained of, the Court ought not to 
 interfere to compel the pulling down of such building, or to 
 restrain its completion (7). 
 
 19. The twenty years' enjoyment under the Prescription Act 
 (2 & 3 Will. 4,j c. 71), ss. 3 and 4, is to be reckoned from the 
 commencement of the enjoyment, to the time of bringing the 
 action ; and an interruption of the enjoyment, in whatever period 
 of the twenty years it may happen, cannot be deemed an interrup- 
 
 (1) Aynaley v. Glover, L. E. 10 Ch. (4) Senior v. Pawson, L. E. 3 Bq. 
 283 ; L. E. 18 Eq. 544 ; 43 L. J. (Ch.) 330 ; 15 W. E. 220. 
 
 777 ; 44 L. J. (Ch.) 523 ; 31 L. T. (5) lb. 
 
 (N. S.) 219; 3a L. T. (N. S.) 345 ; 23 (6) Gort {Viscountess) v. Clark, 18 
 
 W. E. 147, 459. L. T. (N. S.) 343 ; 16 W. E. 596. 
 
 (2) Arcedeckne v. Kelk, 2 Giff. 683 ; (7) Low v. Innes, 10 Jur. (N. S.) 
 3 Jur. (N. S.) 114. 1037 ; 4 De G. J. & S. 286 ; 11 L. T. 
 
 (3) Gochs V. Romaine, 14 L. T. (N. S.) 217. 
 (N. S.) 390. 
 
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LIGHT, LIGHT AND AIR -BASEMENTS— TRESPASS. 213 
 
 tion within the meaning of the Act, unless it is acquiesced in for Part li. 
 a whole year (1). And if an obstruction to an ancient light sho™i. 
 has existed more than twelve months, but a promise has been 
 given to remove the obstruction, and twelve months have not 
 elapsed from the date of that promise, before proceedings are 
 taken, that is not such an interruption of the enjoyment as will 
 deprive the owner of the light of his remedy (2). 
 
 20. The owner of an ancient light, being a lessee whose lease 
 has expired during the obstruction, but who has agreed for a 
 renewal, can still maintain his suit for an injunction to protect his 
 right to the access of light (3). 
 
 21. If a purchaser take with notice of adjoining windows, he is 
 thereby pat upon his inquiry as to whether they are privileged or 
 not, and if privileged, it is immaterial whether they are so as 
 modern windows by grant, or as ancient windows by prescrip- 
 tion (4). If the windows are there before the defendant's eyes, 
 they prima facie present an obstacle to any building being placed 
 so as to obstruct them, and they thus challenge an inquiry whether 
 they are privileged or not (5). 
 
 22. A greater amount of evidence is needed to prove a material 
 injury to light by lateral or oblique obstruction than is necessary 
 in a case of direct obstruction, and that more especially when the 
 buildings to the side are not erected upon what was previously an 
 open space, but upon a space already to a very great extent 
 obstructed by buildings (6). There is no such general proposition 
 as that there can be no material injury to light if the angular 
 elevation of buildings erected opposite, creating the obstruction of 
 light, is not greater than forty-five degrees; but if forty-five 
 degrees of sky is left open, that is some prima facie evidence 
 of the light not being obstructed to such an extent as to call for 
 the interference of the Court — evidence which requires to be 
 rebutted by direct evidence of injury (7). 
 
 (1) Flight V. Thomas, 8 01. & F. (5) lb. 
 
 231 ; West, 671 ; 5 Jur. 811. (6) City of London Brewery Co. v. 
 
 (2) Gale V. Abbot, 8 Jur. (N. S.) Tennant, L. R. 9 Ch. 212, 220; 43 
 987. L. J. (Ch.) 457 ; 22 W. R. 172 ; 29 
 
 (3) lb. L. T. (N. S.) 755 ; Theed v. Deben- 
 
 (4) Mihs V. ToMn, 16 W. R. 465; ham, 2 Ch. D. 165; 24 W. R. 775. 
 17.L. T. (N. S.) 432. (7) lb. 
 
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214 MGHT, LIGHT AND AlE— EASEMENTS— TRESPASS. 
 
 Part II. Easements. 23. If a party claim an easement and prove Only part of his 
 Chapter III. , . , i ■ • t-v, 
 
 Sect. 1. claim, the easement proved constitutes a clmerent easement from 
 
 the one claimed, and the claimant cannot obtain relief in Equity (1). 
 
 24. Although that kind of understanding by which a customer, 
 as long as he continues such, is allowed an easement, does not 
 confer on him an equitable right, yet he is entitled to reasonable 
 notice before being deprived of his easement. But if the customer 
 has been encouraged by the owner of the servient tenement, to 
 erect works to wliich the easement is essential, or nearly so, he 
 will acquire an equitable right to the easement (2). 
 
 25. Mere knowledge of the manner in which property con- 
 veyed had been used by a vendor for the convenience of an 
 adjoining tenement, will not affect the purchaser if the property 
 is conveyed without reservation j and a grantor cannot claim 
 rights over property absolutely granted, even if such rights were, 
 at the time of the grant, continuous and apparent easements 
 enjoyed in respect of an adjoining tenement, which remains 
 the property of the grantor; and if an owner of two adjoining 
 tenements convey one of them to a purchaser absolutely, the 
 tenement so sold is discharged from any quasi-servitudes to which 
 it was subjected by the vendor during liis ownership of both 
 properties, and the purchaser is not bound to take notice of 
 the manner in which the tenement purchased has been used for 
 the convenience of the adjoining and unsold tenement, and cannot 
 be restrained from interfering with such quasi-servitudes (3). If 
 a vendor of two adjoining tenements is subject to no liabihty as to 
 a right of way through one of them, by the tenant of the other, 
 the purchaser of one tenement cannot enforce that right of way as 
 against the other purchaser (4). 
 
 26. The Court will protect a right of way from hindrance arising 
 from a use of it by another party in such a manner — for instance, 
 by loading and unloading waggons where there is not such an 
 easement — as to obstruct that right (5). 
 
 (1) Welkin V. Herlert, 1 L. T. (N. S.) L. J. (Ch.) 249 ; 12 W. R. 356 ; 4 De 
 173. G. J. & S. 185. 
 
 (2) Banhart v. Tennant, 18 W. R. (4) Daniell v. Anderson, 8 Jur. 
 639. (N. S.) 328 ; 31 L. J. (Ch.) 610. 
 
 (3) SuffieU V. Brown, 10 Jur. (5) Thorpe v. Brumfitt, L. E, 8 Ch. 
 (N. S.) Ill; 9 Jur. (N. S.) 999; 33 650, 657. 
 
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LIGHT, LIGHT AND AIR— EASEMENTS— TEESPASS. 215 
 
 27. If two parties have rights which are reciprocal, and neither Paet ii. 
 of which is paramount over the other, to use a roadway for their seot. i. 
 several trades, each must be bound to use his right so as to injure 
 
 the other as little as possible ; and the Court will restrain any 
 stationary obstruction — for instance, that caused by carts standing 
 at a store — caused by one of the parties, when the road is required 
 to be used by the other party (1). 
 
 28. If a party grant a right of way over his land, and place 
 across the way an obstruction not allowing of easy removal, the 
 grantee may go round to connect the two parts of his way on each 
 side of the obstacle over the grantor's land, without trespass, 
 and the Court will protect this right so long as the obstruction 
 exists, and notice of a right of way, and of an obstruction to it, is 
 notice of the grantee's right of deviation (2). 
 
 29. A grant made expressly for the purpose of the grantee's 
 building a bouse creates a legal easement over the adjoining land 
 retained by the grantor, to such an extent as may be strictly 
 necessary for enabling the grantee to build the house, and enjoy it 
 when built ; and where the grant does not notice the intention of 
 building, but both grantor and grantee know that the purpose is 
 building, an equitable right is obtained, co-extensive with the legal 
 right which would have been obtained, if the grant had noticed 
 the intention of building (3). 
 
 30. The right to an easement, conferred by a grant thereof, 
 must be measured by the terms of the grant of the easement, and 
 will be restricted by a Court of Equity to a reasonable use of the 
 easement for the purpose of the land in the condition in which it 
 was when the user took place (4). But in the case of proving 
 a right to an easement by prescription, the user of the right is the 
 only evidence, and the right acquired must be measured by the 
 extent of the enjoyment which is proved (5). 
 
 (1) Shoesmith y. Byerley, 21 W. E. (4) Wood v. Saunders, L. E. 10 
 669 ; 28 L. T. (N. S.) 553. Ch. 582, 584, 585 ; 32 L. T. (N. S.) 363 ; 
 
 (2) Selby V. Nettle/old, L. E. 9 Ch. 23 W. E. 514; 44 L. J. (Ch.) 514; 
 111,114; 43L. J.(Ch.)359; 29 L. T. Williams v. James, L. E. 2 C. P. 
 (N. S.) 661 ; 22 W. E. 142. 577. 
 
 (3) Robinson v. Grave, 21 W. E. (5) Williams v. James, supra, 580, 
 223, 225, 569; 27 L. T. (N. S.) 648; 581. 
 
 29 L. T. (N. S.) 7. 
 
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216 LIGHT, LIGHT AND AIR— EASEMENTS— TRESPASS. 
 
 Past II. 31. The right of a person to the support of the land imme* 
 
 Sect. 1. diately around his house is not in the nature of an easement, but 
 is the ordinary right of enjoyment of property; and till that 
 is interfered with he has no legal ground of complaint, although, 
 in fact, something may have been done which (without his know- 
 ledge) has occasioned results that will afterwards affect his pro- 
 perty (1). A landowner has a right, independently of prescriptiouyi 
 to -the lateral support of his neighbour's land, so far as that 
 is necessary to sustain his soil in its natural state, and also to 
 compensation for damage caused, either to the land or to buildings 
 upon it, by the withdrawal of such support. And a Court of 
 Equity will restrain mining operations in adjoining land, which 
 have injured houses upon the land, and would have caused the 
 soil to subside without the additional weight of the houses, and 
 under statutory jurisdiction will grant compensation for the 
 damage caused by the withdrawal of the support (2). And 
 although there may be no very precise decision upon the point of 
 law, in the authorities, yet the dicta are strongly in favour of the 
 proposition that the landowner might, where the houses are 
 ancient, acquire by twenty years' enjoyment, the right to lateral 
 support for the additional weight of buildings erected on the 
 land (3). 
 
 32. Upon a conveyance of land for the express purpose of 
 building, the right of working minerals being reserved to the 
 vendor, the purchaser is entitled to support for his buildings, not 
 only from underlying, but adjacent soil (4). And the same right 
 exists, even though the conveyance is under the compulsory 
 powers of a railway Act (5). Although as between conterminous 
 owners, the lateral support of a neighbour's soil can only be 
 claimed for the surface of the land in its natural state; yet if 
 a person sell land to another to be used for an express purpose, 
 he will not be allowed to derogate from his own grant, by doing 
 anything in the adjacent soil which unfits the land sold, for the 
 purpose for which it was sold. And in this case also, it makes no 
 
 (1) Backhouse v. Bonomi, 9 H. L. C. (4) North Eastern Eailw. Co. v. 
 503. Mliott, 7 Jur. (N. S.) 6 ; 8 W. E. 603 ; 
 
 (2) Sunt V. Peake, Job. 705 ; vide 9 W. R. 172. 
 ante, p. 97, note (2). _ (5) lb. 
 
 (3) Bunt V. Peake, siqira. 
 
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LIGHT, LIGHT AND AIR— BASEMENTS— TRESPASS. 217 
 
 diffei'ence that the land so sold was taken under compulsory Pakt II. 
 powers (1). But the purchaser is not entitled to any additional ^Seot.'^i. 
 support aiforded by the accidental state in which the adjacent soil 
 happens to be n,t the time of the purchase, however long it may 
 have been in that state prior to the purchase (2). 
 
 33. If a purchaser of land have, on the sale, constructiye notice 
 that the adjoining land is to be laid out in building in a manner 
 which will make a right of way nrer the purchased land, necessary 
 to the vendor, such right of way is reserved to the vendor by 
 implication as a way of necessity, and the purchaser will be 
 restrained from disputing the right of way (3). 
 
 34. An easement may be acquired by the setting apart of land 
 for certain specified public objects, and the public will thereby 
 acquire rights and interests in such land, and they who have the 
 legal title will hold it subject to the trusts of the land, and a 
 Court of Equity will restrain them from committing any act 
 which would be a breach of the trusts (4). 
 
 35. If the parties complaining of an interruption in their enjoy- 
 ment of an easement are guilty of laches — for instance, a laches of 
 one year and a quarter — and fail to institute proceedings to stop 
 it until the new building has been completed, a Court of Equity 
 will not grant an injunction to restrain the interruption, but will 
 leave them to their remedy at Law (5). 
 
 36. A company is as much bound by acquiescence as an in- 
 dividual, notwithstanding the want of a formal contract. And the 
 Court will restrain any violation of a right of way or communica- 
 tion, in which a company has acquiesced (6). 
 
 37. An injunction lies for one in possession of land to restrain 
 the threatened appropriation of such land for the purpose of a 
 highway, where the proper steps have not been taken to secure 
 a suitable compensation to the plaintiff, or to protect him .from 
 an improper appropriation (7). 
 
 (1) North Eastern Jlailw. Co. v. (4) Com. v. Bush, 14 Penn. 186 
 Elliott, 6 Jur. (N. S.) 817. (Amr.). 
 
 (2) lb. (5) Cooper v. Huhbtock, 7 Jur. 
 
 (3) Davies v. Sear, L. R. 7 Eq. 427 ; (N. S.) 457 ; 9 W. R. 352. 
 
 38 L. J. (Ch.) 545 ; 17 W. R. 390 ; 20 (6) Laird v. Birkenhead Bailw. Co., 
 
 L. T. (N. S.) 56; et vide Hervey v. Joh. 500; 29 L. J. (Ch.) 218. 
 
 Smilh, 22 Beav. 299 ; 1 K. & J. 389. (7) Anderson v. Commissioners, &c., 
 
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218 LIGHT, LIGHT AND AIR— EASEMENTS— TRESPASS. 
 
 Part il 38, In cases of trespass, under colour of title, where the mischief 
 
 Sect. 1. ' apprehended is irreparable, a Court of Equity will grant an injunc- 
 r[,j.g gg tion ; and whether the mischief be irreparable or not, it will 
 
 by decree, if not by order upon motion, extend the jurisdiction 
 of preventive justice to all cases of trespass in which damages 
 would be an inadequate and uncertain remedy, and the protection 
 of the right in specie the only mode of doing complete justice (1), 
 
 39. The Court will, by mandatory injunction, restrain a trespass 
 by a stranger, the continuance of which will inflict irreparable 
 damage upon persons in possession, and damage which it is 
 impossible to measure will be deemed irreparable (2). 
 
 40. But it will refuse an injunction to restrain a trespass pending 
 an action of ejectment by a plaintiff, where the case is not one of 
 a sudden and irreparable injury, as for instance, the cutting of turf 
 in a reclaimed bog (3). 
 
 41. Every common trespass is not a foundation for an injunction 
 iu a Court of Equity, where it is only contingent and temporary; 
 but if a common trespass be continued so long as to become a 
 nuisance or a constant grievance, the Court will restrain its 
 continuation (4), 
 
 42. An injunction will not be granted to restrain a trespass, 
 unless the trespasser is insolvent, or the injury irreparable and 
 destructive to the plaintiff's /estate — to its very nature and sub- 
 stance — and such as calls for immediate relief (5), at least, until 
 the right is determined (6). There must be something particulai 
 
 12 Ohio St. 642 ; M' Arthur v. Kelly, Rep. 29. 
 
 5 Ohio, 140 (Amr.); et vide Floyd v. (4) Coulson v. White, 3 Atk. 21; 
 
 Turner, 23 Tex. 292 ; Ball v. McLeod, Whitfield v. Sogers, 26 MiSs. 48 ; 7 
 
 2 Met. (Ky.) 98 ; Langsdale v. Bonton, Ind. 408 ; Moore v. Ferrell, 1 Kelly, 7 ; 
 
 12 Ind. 467 (Amr.). Schetz's, &c., 35 Penn. 88 ; Carpenter 
 
 (1) North Union v. Bolton and v. Owynn, 35 Barb. 395 (Amr.). 
 Preston By. Co., 3 Railw. Gas. 345. , (5) James v. Dixon, 20 Miss. 79; 
 
 (2) London and North Western Foster, 6 Eng. 304 ; Wilson v. EugheU, 
 Bailw. Co. V. Lancashire and York- 1 Morr. 461 ; Catching v. Terrell, 10 
 shire Bailw. Co., L. E. 4 Eq. 174 ; 17 Geo. 576 ; Shipley v. Bitter, 7 bd, 
 L. T. (N. S.) 43 ; 15 W. R. 810 ; vide 408 ; 5 Geo. 576 ; 26 Miss. 84 ; Centre- 
 Lowndes v. Bettle, 33 L. J. (Oh.) 451 ; ville, &c. v. Barnett, 2 Cart. 536 ; 
 10 Jiir. (N. S.) 226; 12 W. R. 399; Brooks v. Diaz, 35 Ala. 599 (Amr.). 
 10 L. T. (N. S.) 55 ; ante, p. 64; and (6) Shurmeier v. St. Paul, dc, 8 
 note (2), same page. Min. 113 ; Whitman v. St. Paid, fc, 
 
 (3) Sandys v. Murray, 1 Ir. Eq. lb. 116 (Amr.). 
 
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LIGHT, LIGHT AND AIR— BASEMENTS— TRESPASS. 219 
 
 or special in the case for which a Court of Law cannot afford Part II. 
 adequate redress, and for which, either from difficulty of proof or seot. i. 
 some other cause, the party cannot obtain adequate satisfaction in 
 the ordinary course of Law (1). 
 
 43. An injunction will be granted to. restrain various acts of 
 trespass committed against a plaintiff, and of annoyance to his 
 tenants, by a pauper defendant, as recovering damages at Law 
 against a pauper would not constitute an adequate remedy (2). 
 But the Court will not interfere to prevent trivial trespasses ; and 
 does not exercise its jurisdiction by injunction for the purpose of 
 acting on legal rights, but interposes in order either to enforce 
 legal rights, or to prevent mischief, until the time shall arrive 
 when those legal rights may be ascertained (3). 
 
 44. If a lessee for life commit waste (from the privity) by 
 opening a mine in his own close, and dig a mine in the adjoining 
 close of the lessor, not comprised in his lease, an injunction will 
 
 . be granted as to both closes ; as to the lessor's close, first, from 
 the irreparable ruin of the property as a mine ; secondly, as it is 
 a species of trade ; and thirdly, upon the principle of a Court 
 of Equity enjoining in matters of trespass, where irreparable 
 damage is the consequence (4). 
 
 45. The Court will grant an injunction to restrain trespass, 
 upon the principle of avoiding multiplicity of suits ; as where the 
 lord encloses part of the common, insisting that it is an improve- 
 ment within the Statute of Merton, and that he has left sufficient 
 common for the tenants ; and the tenants throw open the inclosure 
 by force ; and the Court will continue the injunction pending the 
 trial at Law, as to some of the defendants, whether they have 
 a right of common, and also whether sufficient common is left (5). 
 
 46. Though the Court will not restrain an action of trespass 
 against a company, by a party through whose estate a canal 
 is being cut, for deviation from the line, on the ground that 
 
 (1) Bethune v. Wilhins, 8 Geo. 118 ; (3) Saunders v. Smith, 3 My. & Or. 
 Anthony v. Brooks, 5 Geo. 576 ; 10 711. 
 
 Geo. 576; The Justices, &c. v. The (4) Flamang's Case, cited in Ean- 
 
 Oriffin, &c., 11 Geo. 246 ; 26 Miss. 84 som v. Gardiner, 7 Ves. 308 ; 6 Ves. 
 
 (Amr.). 147 ; 8 Ves. 90 ; 18 Ves. 186. 
 
 (2) Hodgson v. Bute, 2 Jur. (N. S.) (5) Arthington v. Fawkes, 2 Vera. 
 1014. 356. 
 
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220 PUBLICATION -LETTERS— SECBETS. 
 
 Part II. he has lain by and rested upon his legal rights ; still, if he file 
 
 fjITAT*TFR TTT 
 
 Sect. 1. ' ^ bill to restrain such company from deviating, the Court will 
 not, in a disputed case, grant a committal for an alleged breach of 
 an injunction obtained by the plaintiff, without a trial at Law (1). 
 47. If a plaintiff allege that land and trees upon it belong 
 to him, and that the trees are extremely ornamental to the 
 mansion-house and park, the Court will restrain an alleged trespass 
 by the cutting down of the trees, although the title is dis- 
 puted (2). 
 
 Sect. 2. PMieation — Letters — Secrets. 
 
 Publication. 1. A Court of Equity will punish, as for a contempt, those who 
 
 make the publication of its proceedings the vehicle of a libel; 
 but although it has the power of restraining the publication of its 
 proceedings pending litigation, it will not undertake to restrain 
 the publication of every unfair report purporting to represent 
 what takes place in open Court. And a publication of such pro- 
 ceedings, though unfair, if not a libel, and not such as will 
 obstruct the course of justice, will not be restrained (3). But 
 pending litigation, a Court of Equity will restrain the publication 
 by any of the parties to the suit, of ex parte garbled accountfi 
 calculated to prejudice the case of their opponents, of any of the 
 proceedings in Court ; and the circumstance that such publication 
 is by way of defence, and in answer to similar publications on 
 the other side, will not prevent the Court from granting the 
 injunction (4). 
 
 2. The printing a brief before the cause comes on is a con- 
 tempt of Court ; not that the offence consists in the printing, 
 for any man may give a printed brief, as well as a written one, to 
 counsel; but the contempt of the Court is, the prejudicing the 
 world thereby with regard to the merits of the cause (5). 
 
 3. A plaintiff obtaining information from the production of 
 
 (1) Agar v. Begent's Canal Co., 1025; 29 L. J. (Oh.) 616; 8 W. B. 
 Coop. 77. 688 ; 3 L. T. (N. S.) 57L 
 
 (2) Kinder v. Jones, 17 Ves. 110. (4) Colermm v. West Hartlepool 
 
 (3) Brook V. Svans, 6 Jur. (N. S.) Bailw. Co., 8 W. E. 734. 
 
 (5) The Case of Ca2ifiiii, Perry, cited 2 Atk. 471. 
 
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PUBLICATION— LETTERS— SECRETS. 221 
 
 documents in the defendant's, possession is not at liberty to make Pakt ii. 
 it public, and an injunction will, if necessary, be granted, to Seot.^. 
 restrain him from so doing (1). 
 
 4. The Court will restrain the publication of facts, contrary to 
 an agreement not to do so (2). 
 
 5. The right and property of an author or composer of any 
 work, whether of literature, art, or science, in such work, unpub- 
 lished, and kept for his private use or pleasure, entitles the owner 
 to withhold the same altogether, or so far as he may please, from 
 the knowledge of others ; and a Court of Equity will interfere to 
 prevent the invasion of this right ; as, for instance, by restraining 
 the publication of a catalogue containing a description of such 
 work (3). Every author, before publication, has a common law 
 right of property in his productions ; and a public representation 
 of a dramatic piece at a theatre is not such a publication as to 
 deprive the author or his assignee of such right of property. 
 
 - And the publication and sale of the words and arrangements of a 
 play, obtained from persons who have seen the play performed 
 in another country, will be restrained. It is not open to a spec- 
 tator, on witnessing the public performance of a play, to commit 
 it to memory and then to publish it to the world. Any surrep- 
 titious procuring of the literary property of another, no matter 
 how obtained, if unauthorized and without the knowledge or 
 consent of the owner, and before publication by him, is an in- 
 vasion of his proprietary rights, if made use of to his injury (4). 
 So if a party obtain possession by purchase of works of art, 
 knowing that they have been obtained by the vendor by means 
 of a breach of trust ; as, for instance, impressions of etchings, the 
 plates of which are the property of another — the Court will inter- 
 fere by injunction ; and, without giving him the right to try the 
 question of property at Law, will order the impressioDS to be 
 delivered up ; and where the material on which the impressions 
 are taken are substantially worthless, except for that in which the 
 
 (1) Williams v. Prince of Wales & G. 25; 1 H. & Tw. 1; 2 De G. & 
 Life Co., 23 Beav. 338. Sm. 665 ; 3 Jur. 507. 
 
 (2) Anon., 3 Jur. (N. S.) 685; (4) Palmer v. Bewitt, 23 L. T. 
 Jamieson v. Teagiie, 3 Jur. (N. S.) (N. S.) 823 ; Supreme Court, New 
 1206. York. 
 
 (3) Prince Albert v. Strange, 1 Mac. 
 
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222 PUBLICATION— LETTERS— SECRETS. 
 
 Pabt II. possessor had bo property, namely, the impressions, the Court 
 
 ChaPTEE in. .,, , 1 . T . /-, N 
 
 Sect. 2. Will order their destruction (1). 
 
 6. The Court, on the application of the representatives of a 
 deceased author, will restrain the printing of an unpublished 
 manuscript of that author, a copy of which has been given by 
 the representative of the author to a person under whom the 
 defendant claims, but not with the intention that he should 
 publish it (2). But the Court will not restrain the publication 
 of a work until after the plaintiff shall have established his right 
 to the property by an action, if it has been left for a long period 
 — for instance, for twenty-three years — by the author in the hands 
 of the bookseller, to whom it was originally sent with an intention 
 of its being published, although that intention was afterwards 
 relinquished (3). The Court will not interfere by injunction, upon 
 the author's application, to restrain the publication of a work 
 which is of such a nature that an action cannot be maintained 
 upon it for damages (4). 
 
 7. It would seem that unless there be a special contract, either 
 express or implied, reserving to the author a qualified copyright, 
 the purchaser of a manuscript is at liberty to alter and deal with 
 it as he thinks proper (5). 
 
 8. Where there are two rival works, the Court will restrain 
 the proprietor of one of them from advertising it in terms calcu- 
 lated to induce the public to believe that it is the other work ; 
 bat will not restrain him from publishing an advertisement tend- 
 ing to disparage that other work (6). 
 
 9. A Court of Equity will restrain third persons from pubhshi 
 ing lectures orally delivered (which have been substantially 
 reduced into writing), who have procured the means of so doing 
 from persons who attended the oral delivery (7) ; and a person 
 who attends oral lectures is not justified in publishing them for 
 profit, and an action will lie against him for doing so (8). But 
 it is a question, whether there is any legal right of property in 
 
 (1) Prince Albert v. Strange, 1 Mac. (4) lb. 
 
 & G. 25 ; 1 H. & Tw. 1 ; 2 De G. & (o) Oox v. Cox, 11 Have, 118. 
 
 Sm. 665 ; 3 Jur. 507. (6) Seeley v. Fisher, 11 Sim. 581. 
 
 (2) Dukeof Queensberry\. Shebbeare, (7) Ahtrnethy y. Hutchinson, 1 H. 
 2 Eden, 329. & Tw. 28. 
 
 (3) Southeyv. Sherwood,2Mer. i35. (8) lb. 
 
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PUBLICATION— LETTERS— SECBETS. 223 
 
 the sentiments and language of a lecture delivered orally, which Paet II. 
 cannot be shewn to have been reduced into writing (1). However, ^™\™' 
 
 persons who attend oral lectures, though not reduced into writing, ' 
 
 and whether pupils or otherwise, will be restrained from publish- 
 ing them, such publication being a breach of trust and violation 
 of confidence (2). 
 
 10. The Court will not restrain one of the several partners in 
 a patent from publishing a book containing an account of the 
 invention (3). 
 
 11. The jurisdiction of a Court of Equity to restrain the Letters. 
 production of letters is foimded on a right of property in the 
 writer (4). But the Court will not grant an injunction to restrain 
 
 the publication of letters on a principle of this sort, that if a 
 letter has been written in the way of friendship, either the con- 
 tinuance or the discontinuance of that friendship affords a reason 
 for the interference of the Court (5). The publication of letters 
 may be restrained, although not designed for profit (6). But the 
 acts of the party may supply reasons for not restraining the publi- 
 cation of letters (7). Persons receiving letters may destroy them (8). 
 ' 12. Where letters written by a plaintiff to the defendant have 
 been returned by him, with a declaration that he did not consider 
 himself entitled to retain them, the Court will restrain the 
 publication of copies taken before the return, without the know- 
 ledge of the plaintiff, though represented by the defendant as 
 necessary for the vindication of his character (9). 
 
 13, A Court of Equity will, on the application of an executor, 
 restrain the publication of letters, the property of the testator (10). 
 So it will restrain the executor of the person to whom they were 
 written from publishing private letters, without leave of the 
 executors of the persons who wrote them (11). 
 
 (1) Abernethy v. Hutchinson, 3 L. J. , (5) lb. 413. 
 (Ch.) 209 ; 1 H. &■ Tw. 28. (6) lb. 415. 
 
 (2) lb. (e« vide 5 & 6 Will. 4, c. 65, (7) lb. 427. 
 wHcb recognises a sole right of pub- (8) lb. 418. 
 lishing lectures in the author thereof, (9) lb. 403. 
 
 and his assignees, subject to certain (10) Qranard v. Dunhin, 1 Ball & B. 
 
 restrictions). 207. 
 
 (3) ffawMns v. Blackford, 1 L. J. (11) Thompson v. Stanhope, Amb. 
 (Oh.) 142. 737. 
 
 (4) Gee V. Pritchard, 2 Sw. 403. 
 
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224 
 
 PUBLICATION— LBTTEES—SECEETS. 
 
 Part II. 
 
 Chapter III, 
 
 Sect. 2. 
 
 Secrets. 
 
 14. The Court will restrain the publication of letters, in a suit 
 for that purpose, by an interlocutory injunction, although the 
 plaintiff does not fully prove his title to relief ; for to refuse the 
 injunction would be to determine the whole suit, on an inter- 
 locutory application (1). 
 
 15. The Court will restrain the publishing a magazine as a 
 continuation of the plaintiff's magazine in numbers, and will 
 restrain the printing or publishing communications or letters 
 received from correspondents by the defendant, while publishing 
 for the plaintiff (2). 
 
 16. The insertion of detached extracts from a literary work, 
 for instance, a farce, in a publication in the nature of a magazine 
 or review, consisting of criticisms, and extracts to serve as a 
 foundation for the criticisms, will not be restrained if the 
 defendant has not transgressed the allowed limits, which, however, 
 are not easily defined (3). 
 
 17. The publication of a public document to which everybody 
 has a right of access, in a printed paper, does not constitute 
 a libellous publication ; and such publication will not be 
 restrained (4). 
 
 18. If a party obtain the knowledge of a secret by means of a 
 breach of trust on the part of the party communicating it — as, for 
 instance, from one of former partners in a trade — a Court of 
 Equity will restrain him from making use of it. Such knowledge 
 of the secret having been acquired in violation of the contract of 
 the party by whom it was communicated, and in breach of trust 
 and confidence. A Court of Equity, in interfering in such cases, 
 fastens the obligation on the conscience of the party and enforces 
 it against him, in the same manner as it enforces against a party 
 to whom a benefit is given, the obligation of performing a promise 
 upon the faith of which the benefit has been conferred (5). But 
 if a partner in a business, in which a secret process of manufacture 
 and composition of materials is used, who has not, under the 
 
 (1) Andrew v. Maehurn, 31 L. T. (3) Whittingham, v. Wooler, 2 Sw. 
 (N. S.) 73; 22 W. E. 564; L. E. 9 428. 
 
 Oh. 522. (4) Fleming v. Newton, 1 H. L. C. 
 
 (2) Sogg v. Kirht/, 8 Ves. 215. 363. 
 
 ,(5) Morison v. Moat, 21 L. J. (N. S.) Oh. 248; 9 Hare, 241. 
 
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PUBLIOATIO]S(— LETTERS— SECRETS. 225 
 
 partnership cohtract, a right to the knowledge of the secret, Paet ii. 
 should openly take part in the manufacture, and should, with the Seot. 2. 
 knowledge and concurrence of his partners, be permitted to 
 acquire a knowledge of the process and ingredients ; it would be 
 difficult for any of those partners afterwards to restrain him from 
 using any knowledge so acquired, or any secret so disclosed ; they 
 would probably, in such circumstances, be considered to have 
 waived any right to preserve the secret for their separate 
 benefit (1). But when a person has discovered a valuable inven- 
 tion, and has not patented it, any one who has discovered the 
 ingredients (independently of the case of a breach of trust or 
 agreement, or of fraud, or the like) may sell those ingredients, 
 and may use the name of the person who has discovered them, 
 after his death, but not in his lifetime ; however he must not use 
 the name so as to suggest that they are made by the discoverer, 
 or that they are the same as belonged to the discoverer, or that 
 his is the only genuine article (2). 
 
 19. A Court of Equity will grant an injunction to restrain the 
 disclosure of secrets obtained from the books and papers of the 
 plaintiffs — for instance, a firm of attorneys — and of their clients, 
 come to the defendant's knowledge in the course of his employ- 
 ment by the plaintiffs, and from communicating any of the 
 information possessed or acquired by him relating to the co-part- 
 nership of the plaintiffs, or the affairs or secrets thereof, by means 
 of his having been employed by them (3). 
 
 20. A Court of Equity will not interfere on points of morals, 
 except when they are mixed up with the administration of civil 
 rights in property ; but confidential communications involving 
 fraud are not privileged from disclosure (4). 
 
 21. Though the policy of the law will not permit a general 
 restraint of trade, yet a trader may sell a secret in business, and 
 restrain himself generally from using that secret (5). 
 
 (1) Morrison v. Moai, 21 L. J. Oholmondeley (Lord) v. Lord Clinton, 
 (N. S.) Oh. 248 ; 9 Hare, 241. 19 Ves. 261. 
 
 (2) James v. James, L. R. 13 Eq. (4) Gartside v. Outram, 2 Jur. 
 421, 424 ; 41 L. J. (Ch.) 353 ; 26 L. T. (N. S.) 39 ; 26 L. J. (Ch.) 113. 
 
 (S. S.) 568 ; 20 W. R. 434. (5) Bryson v. Whiteliead, 1 Sm. & 
 
 (3) Evitt V. Price, 1 Sim. 483 ; vide S. 74. 
 
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Account. 
 
 226 ACCOUNT— SET-OFF. 
 
 Paet II. Sect, 3. Accownt — Set-off. 
 
 Ohapteb in. 
 
 1. The equitable jurisdiction in matters of account is con- 
 current with that of Courts of Law, and no precise' rule can be 
 laid down as to the cases in which it will be exercised ; a Court of 
 Equity reserving to itself a large discretion upon the subject, in 
 the exercise of which it will pay due regard to the nature of the 
 case, and the conduct of the parties ; thus it will not restrain an 
 action already commenced where it is not a case of mutual 
 accounts, and there has been delay in applying for the injunction 
 until the period of the trial, merely on the ground that from the 
 number and complexity of the items in the account, a judge at 
 nisi prius would urge the parties to refer it (1). 
 
 2. A Court of Equity will endeavour to assume jurisdiction in 
 matters of account where doing so will promote substantial justice 
 between the parties, as where a plaintiff is unable to prosecute 
 actions commenced by him, in consequence of his having been 
 prevented by the defendant from obtaining a conclusive certificate 
 as to the work done by him for the defendant. In such a case the 
 Court will restrain actions by the defendant against the plaintiff 
 for breach of the contract, and make a decree for an account (2). 
 So if a plaintiff has done all which he had contracted to do, 
 except what a defendant had prevented him from doing, and the 
 plaintiff has not been fully paid for the work done by him, in 
 consequence of a fraudulent and collusive certificate of an agent' 
 of the defendant having stated a less amount than what was due 
 to the plaintiff, a Court of Equity will grant an injunction to 
 restrain the defendant from attempting to put an end to the 
 contract, and make a decree for an account; such a species of 
 fraud gives jurisdiction to a Court of Equity, although the 
 plaintiff may not have completed the whole of his work (3). But 
 where it is unquestionable that a Court of Law can do as full 
 justice to the subject in dispute as a Court of Equity, such a Court 
 
 (1) South Eastern Eailio. v. Martin, 396. 
 2 Ph. 758 ; 1 H. & Tw. 69 ; 5 Eailw. (3) Waring v. Manchester, Sheffield, 
 Cas. 454 ; 13 Jur. 1 ; 12 Jur. 1062. and Lincolnshire Bailw. Go., 2 H. & 
 
 (2) Paihs V. Nugent, 11 Jur. (N. S.) Tw. 239. 
 943 ; 14 W. R. 94 ; 13 L. T. (N. S.) 
 
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ACCOUNT— SBT-OPP. 227 
 
 will not interfere to stay the proceedings at Law (1). However, Pabt li. 
 if there be any doubt about that, a plaintiff has a right to ^seot^S; 
 maiatain his suit in a Court of Equity for an account, for when 
 the completeness of the relief at Law is doubtful, and questions 
 of account, of the right to raise a case of wilful default, and of 
 fiduciary relationship between the parties are involved, such a 
 Court will entertain a suit for the purpose of transferring the pro- 
 cee.dings from Law to Equity (2) ; and if claims set up are such as 
 would not be properly decided in an action, the Court will restrain 
 the action ; and a delay by the plaintiff in filing his bill, tliough 
 much exceeding what in several instances a Court' of Equity has 
 deemed sufficient to disentitle a plaintiff to ask for an injunction, 
 is no ground for refusing to interfere in a case where it is clear 
 that a Court of Law cannot possibly deal with the subject 
 matter (3). 
 
 3. There is a distinction between cases where a Court of Equity 
 will entertain jurisdiction over a matter of account, and where 
 such a Court will withdraw a matter of account from a Court of 
 Law. There are many cases in which it seems, looking through 
 the whole of the decisions, that a Court of Equity will properly 
 entertain jurisdiction on the matter, where, if the party making a 
 claim proceeded at Law, a Court of Equity would not, as a conse- 
 quence, because it would itself exercise jurisdiction if appealed 
 to, withdraw it from the jurisdiction of a Court of Law ; and 
 in certain cases, and where the account is of such a nature that 
 it is thought justice could not be done at msi prius, a Court of 
 Equity will withdraw the matter, and take the exclusive conduct 
 and decision of the case, although it is a subject of legal jurisdic- 
 tion, and the demands on both sides are of a legal nature ; and 
 doing this, such a Court will either itself decide the matter, or, if 
 it be matter of Law, and fit for the decision of a Court of Law, 
 will put it into such a shape as to make the decision practicable, 
 
 (1) Southampton Dock Go. v. South- (2) Southampton Dock Co. v. South- 
 ampton Barbour and Pier Board, amnion Ha/rbour and Tier Board, 
 L. E. 11 Eq. 254; 23 L. T. (N. S.) supra. 
 
 698, 260; Fluker v. Taylor, 3 Drew. (3) Simth 'Eastern Bailw. Co. v. 
 
 183 ; South Eastern Bailw. Co. v. Brogden, 3 Mac. & Gr. 8. 
 Brogden, 3 Mao. & G. 8. 
 
 Q 2 
 
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228 ACCOUNT- SET-OFF. 
 
 Past II. where it is thought not to be so in the general form in which the 
 Seoi. 3. claim might have been obtained (1). 
 
 4. A plaintiff is not entitled to the interference of a Court of 
 Equity on principles of Equity, if there is nothing more in his case 
 than matter of set-off, or other defence at Law, and even if he 
 has a stronger case, it is too late to come to the Court for its 
 interference after he has suffered an action at Law to be tried and 
 determined at nisi prius (2). 
 
 5. The account which a Court of Equity adjusts must be one of 
 debtor and creditor, and not an account of debts one way and of 
 damages the other way. A Court of Equity will not take an 
 account in any case where the subject, as to which the account on 
 one side is required, would not be a matter of set-off at Law, though, 
 it does not follow that where there would be a set-off at Law 
 there would necessarily be an account in Equity, the discretion of 
 the judge must be exercised to see that the items of the account 
 are proper for the consideration of a Court of Equity (3). 
 
 6. In cases between landlord and tenant, if there is a ground of 
 defence which cannot be set up in ejectment for non-payment of 
 rent, but which it is unconscionable in the landlord not to admit, 
 or if an account be so complex that it cannot properly be taken at 
 Law, a Court of Equity will restrain the action and restore the 
 tenant to possession upon payment of what shall appear to be 
 due (4). 
 
 7. A mere general allegation that there are mutual dealings and 
 transactions between himself and his principal will not entitle the 
 agent to an account, and an injunction to restrain the principal from 
 proceeding in an action at Law to recover the amount due (5). 
 
 8. It is not every account which will entitle a party to the 
 interference of a Court of Equity, it must be such an account as 
 
 (1) South Eastern Railw. Co. v. not, subject to a discretionary power in 
 Brogden, 3 Mac. & G. 8. the Court of disallowing such a setoff.) 
 
 (2) Cooper v. Hatton, 12 Pri. 502. (4) O'Malwny v. Dickson, 2 Soh. & 
 
 (3) aiennie v. Imri, 3 Y. & C. 436, Lef. 400 ; Beasley v. D'Arcy, 2 Sch. & 
 442, 444; 3 Jur. 432. (See "The Su- Lef. 403, n.; O'Conner v. Bpai^U, 1 
 preme Court of Judicature Act, 1875," Soh. & Lef. 305. 
 
 Order 19, rule 3, which authorizes a set- (5) Frietas v. Dos Swntos, 1 T. & Ji 
 
 off to be made against the claims of a 574. 
 plaintiff, whether it sound in damages or 
 
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ACCOUNT— SET-OFF. 229 
 
 cannot possibly be taken justly and fairly in a Court of Law (1). Pabt II. 
 So although a principal is undoubtedly entitled to an account in swot. 3. 
 Equity from his agent, yet before such a Court will interfere, a 
 ground for its interposition must be laid, by shewing an account 
 which cannot be fairly investigated by a Court of Law (2), 
 
 9. The mere fact that an agent must in general be ignorant of 
 a certain class of orders upon which he is entitled to a commission, 
 does not enable him to file a bill against his principals for an 
 account of what is due to him for such commission, his remedy is 
 at Law (3). 
 
 10. The first duty of an agent, receiver, trustee, or executor, is 
 to be constantly ready with his accounts, and if he neglect to 
 render an account, and delay the distribution. of the fund amongst 
 those entitled, he will be charged with interest on the balance, 
 and fixed with the costs of the suit (4). 
 
 11. After an account taken under a decree, a party will not be 
 allowed to overhaul the account by bringing an action at Law on 
 the same subject matter (5). 
 
 12. The mere existence of cross-demands is not suf&cient, and Set-off. 
 still less will a Court of Equity interfere, on the ground of equit- 
 able set-off, to prevent a party from recovering a sum awarded to 
 
 him by a jury as damages for a breach of contract, merely because 
 there is an unsettled account pending between him and the party 
 against whom the action is brought, although the subject matter 
 of the accoimt consists of dealings and transactions arising out of 
 the contract, the breach of which is the subject of the action (6). 
 And if a suit is for an account of transactions under a contract, 
 and the action asked to be stayed is for damages for the breach of 
 the contract, the object and subject matters of the suit and action 
 are totally distinct, and the fact that the agreement is the origin 
 of both does not form any bond of union for the purpose of 
 supporting an injunction to restrain proceedings in the action (7). 
 Equitable set-off exists in cases where the party seeking the 
 
 (1) Frietas v. Dos Santos, 1 Y. & J. (5) Bell v. O'Reilly, 2 Sch. & Lef. 
 
 574. 430. 
 • (2) King v. Bossett, 2 Y. & J. 33. (6) Bawson v. Samuel, Cr. & Ph. 
 
 (3) Smith V. leveaux, 2 De G. J. & 161, 178. 
 
 S. 1. (7) lb. (sec note (3), p. 228, ante). 
 
 (4) Fearse v. Green, 1 Jac. &W. 135. 
 
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230 
 
 RESTEAINT OP TRADE— BUSINESS, TRADES— PAETNBESHIP, ETC. 
 
 Part II. 
 
 Chapter ITI. 
 
 Sect. 3. 
 
 benefit of it can shew some equitable ground for being protected 
 from his adversary's demand (1). 
 
 13. The equity of bills for an account to restrain actions for 
 damages on the ground of set-off must impeach the title to the 
 legal demand (2). But if the title to the legal demand of the 
 defendant in a suit in a Court of Equity, is impeached in Equity, 
 such a Court will restrain an actiotn on the demand, as it is a fair 
 question for a Court of Equity to determine (3). 
 
 14. There will be no set-off where debts are due in different 
 rights, such a set-off cannot be made either at Law or in 
 Equity (4). A party going into Equity to enjoin a judgment 
 on the ground of set-off, must shew as strong a claim to be 
 paid the set-off as if he were suing on it at Law or in Equity (5). 
 An equitable set-off exists where there is a right of set-off in 
 Equity, which would not be available as a defence at Law (6). 
 A surety defendant at Law may, in a Court of Equity, set off 
 a claim which has been allowed against the principal debtor (7). 
 
 Beatraint of 
 trade. 
 
 Sect. 4. Bestraint of Trade — Business, Trades — Partnership— 
 Bankruptcy, Insolvency. 
 
 1. A covenant restraining trade, within particular limits, or 
 partners from cai'rying on the same trade for their private benefit, 
 is legal (8). There is no irrebuttable presumption against the 
 legality of a covenant in general restraint of trade ; and though 
 all restraint which is unreasonable for the protection of the 
 parties to a contract, is bad, yet public policy enables a con- 
 tracting party to enter into any stipulation, however restrictive, 
 if such stipulation is not unreasonable, having regard to the 
 
 (1) Rawson v. Samuel, Cr. & Ph. 
 161, 178. 
 
 (2) lb. 
 
 (3) Agra amd Masterman's Bank 
 V. Hoffman, 11 Jur. (N. S.) 335 ; 34 
 L. J. (Ch.) 285. 
 
 (4) Bishop V. Chv/fbh', 3 Atk. 691. 
 
 (5) Walker v. Ayres, 1 Clark, 449 
 (Amr.). 
 
 (6) Jones v. Moore, 4 Y. & C. 351. 
 
 (7) Murphy v. Glass, L. E. 2 P. C. 
 408; 6 Moo. P. C. (N. S.) 1 ; 20 L. T. 
 (N. S.)461; 17W. R. 592. 
 
 (8) Morris v. Colmcm, 18 Ves. 437; 
 et vide Chesman v. Nainby,.! Bro. P. 
 C. 234; 2 Str. 739; 2 Ld. Kaym. 
 1456. 
 
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RESTRAINT OF TRADE— BUSINESS, TRADES— PARTNERSHIP, ETC. 231 
 
 subject-matter of the contract (1). All the cases seem to es- Part ii. 
 tablish this principle, that all restraints upon trade are bad, °se™4. 
 as being in violation of public policy, unless they are natural, 
 and not unreasonable for the protection of the parties in dealing 
 legally with some subject-matter of contract. The principle is 
 this : — Public policy requires that every man shall be at liberty 
 to work for himself, and shall not be at liberty to deprive himself 
 or the state of his labour, skill, or talent, by any contract that he 
 enters into. On the other hand, public policy requires that when 
 a man has, by skill, or by any other means, obtained something 
 which he wants to sell, he should be at liberty to sell it in the 
 most advantageous way in the market ; and in order to enable 
 him to sell it advantageously in the market, it is necessary that 
 he should be able to preclude himself from entering into com- 
 petition with the purchaser. In such a case, the same public 
 policy that enables him to do that, does not restrain him from 
 alienating that which he wants to alienate, and therefore enables 
 him to enter into any stipulation, however restrictive it is, pro- 
 vided that restriction, in the judgment of the Court, is not un- 
 reasonable, having regard to the subject-matter of the contract (2). 
 But a covenant embodying a restriction in restraint of trade, 
 unlimited as to space, and greater than is necessary for the pro- 
 tection of the party in whose favour it is made, is, on the face of 
 it, void (3). Contracts restraining the exercise of a trade or pro- 
 fession in particular localities, are valid when there is a fair and 
 reasonable ground for the restriction, such contracts create a legal 
 right, which a Court of Equity will enforce. Such a Court will 
 enforce an implied contract of that nature within reasonable limits, 
 a fortiori it will do so in the case of an express one (4). Where 
 there is an express covenant, and an uncontroverted mischief 
 arising from the breach of it. Equity will grant an injunction to 
 restrain the breach, and the mischief arising from the breach of 
 a covenant in restraint of trade, or a profession, for instance, 
 
 (1) Leather Cloth Co. v. Lorsont, 102; 27 L. T. (N. S.)372; L. R. 15 
 L. R. 9 Eq. 345, 353 ; 18 W. R. 572 ; Eq. 59 ; 42 L. J. (Ch.) 12. 
 
 39 L. J. (Ch.) 86; 21 L. T. (N. S.) (4) M' Clurg's,&c., heg. Intel (Phil- 
 
 661. adelphia), cited in Hilliard, Inj., p. 615, 
 
 (2) lb. 2Dd Ed. 
 
 (3) Allsopp V. Wheatcroft, 21 W. R. 
 
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232 EESTEAINT OF TRADE— BUSINESS, TRADES— PARTNERSHIP, ETC. 
 
 Paet II. restraining practice as a physician within prescribed limits, cannot 
 Sect. 4. ^^ repaired, nor can it well be estimated. A suit at Law would 
 afford no adequate remedy, and the damages would be continuing 
 and accruing from day to day, and furthermore, the object of such 
 contracts can only be obtained by the parties conforming expressly 
 and exactly to its terms (1). 
 
 2. Prima facie, the sale by one partner of his share in a going 
 business to the other partners imports a sale of the vendor's 
 interest in the goodwill of that business (2). And a sale by one 
 partner of his share in the business and goodwill to the other 
 partners, disentitles the vendor from setting up the same business 
 in the same place with others, and representing to the public the 
 new as being the old firm, and he will be~ restrained from so 
 doing (3). But it is perfectly settled that the mere sale of the 
 goodwill neither implies a contract on the part of the vendor not 
 to set up again in a similar business, nor restricts him as to the 
 place of carrying on that business (4). The sale of a trade with 
 the goodwill does not prevent the vendor setting up again in a 
 similar trade, without an express covenant or contract, or, without 
 fraud, by setting up the same trade in the same place, under the 
 same sign or nanle, the party giving himself out as the same 
 person ; or by conduct, by standing by and giving encouragementj 
 generating a confidence, that he would not engage in such a trade, 
 inducing other persons to involve themselves (5). And the vendor 
 of a business and goodwill must not solicit the customers of the 
 old business to cease dealing with the purchaser, or to give their 
 custom to himself (6). A Court of Equity will, by an injunction, 
 enforce an understanding upon a good consideration, that a retiring 
 partner shall not set up the same trade in the vicinity (7). But if 
 a party obtain damages at Law by way of liquidated damages, for 
 a breach of a contract in restraint of trade, a Court of Equity will 
 not interfere by granting an injunction to restrain the breach, as, 
 
 (1) J/'CTj(r5''s,<fcc., Leg. Intel. (Phila- (4) lb. 
 
 delphia), cited in Hilliard, Inj., p. 615, (5) Crutwdl v. Lye, 17 Ves. 335. 
 
 2nd Ed. ; Butler v. Burleson, 16 Ver- (6) Laboitchere v. Dawson, L. B. 13 
 
 mont, 176 (Amr.). 322; 41 L. J. (Cb.) 427; 25 L. T. 
 
 (2) Churton v. Douglas, 5 Jur. (N. S.) 894. 
 
 (N. S.) 887 ; Job. 174. (7) Harrison v. Qardner, 2 
 
 (3) lb. 198. 
 
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EESTRAINT OP TEADB— BUSINESS, TRADES— PAETNERSHIP, ETC. 233 
 
 in such a case, no contract then subsists, and the party applying Pakt IT. 
 for the aid of the Court by granting an injunction, has no legal seot. i. 
 
 right remaining (1). But notwithstanding a bond with a penalty 
 is given in restraint of trade, the obligee is entitled to an injunc- 
 tion to restrain a violation of the act intended to be secured. The 
 principle is this : that where a person enters into an agreement 
 not to do a particular act, and gives his bond to another to secure 
 it, the latter has a right at Law and in Equity, and can obtain 
 relief in either Court, but not in both. He must choose the juris- 
 diction and the remedy he mil have, but if there is any doubt as 
 to the legal right, and the party comes into Equity, that Court will 
 determine the legal right (2). 
 
 3. Equity will restrain the violation of an agreement in restraint 
 of trade within a given area and time, although the party enter- 
 ing into that agreement be a minor at the time of doing so, if *he 
 represent himself to be of age, knowing that he is not so, and by 
 his conduct obtain the benefit of the contract (3). 
 
 4. Any valuable consideration, however small, is sufficient to 
 support any instrument, as for instance a bond, in restraint of trade, 
 and that consideration may be inferred from the instrument (4). 
 
 5. A Court of Equity will restrain the circulation and issue of Business, 
 circulars and cards of business, which, although they may be 
 literally true, tend to mislead the public into a belief that the 
 defendant has succeeded to the plaintiff's business (5). A grant 
 
 to a man and his heirs to the use, intent, and purpose that a 
 certain trade or business shall not at any time be carried on upon 
 the premises granted, amounts to a stipulation in the nature of a 
 covenant running with the land, by the grantee, not to carry on 
 such trade or business upon the premises ; and a Court of Equity 
 will restrain the grantee, his agents or servants, from committing 
 breaches of such a stipulation, and also the tenant of the grantee, 
 if such tenant be made a party to the suit (6). 
 
 (1) Sainter v. Ferguson, 1 H. & T. Eq. 518, 522 ; 43 L. J. (Oh.) 659 ; 30 
 383 ; 1 Mac. & G. 286 ; 14 Jur. 255. L- T. (N. S.) 863, 
 
 (2) Fox V. Scard, 33 Beav. 327. (5) Harper v. Pearson, 3 L. T. 
 
 (3) Cornwall v. Hawkins, 20 W. E. (N. S.) 547. 
 
 653 ; 26 L. T. (N. S.) 607 ; 41 L. J. (6) Modson v. Coppard, 29 Beav. 4 ; 
 
 (Oh.) 435. 9 W. E. 9 ; 30 L. J. (Oh.) 20 ; 7 Jur. 
 
 (4) Gravelij v. Barnard, L. E. 18 (N. S.),ll. 
 
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234 EESTEAINT OF TRADE— BUSINESS, TRADES— PARTNEESHIP, ETC. 
 
 Paet II. 6. The arbitration clauses commonly inserted in partnership 
 
 Sect. 4. articles apply only to questions arising upon the construction of 
 Partnership *^® articles, and to matters of internal dispute thereunder, and 
 not to a case where it is charged that the partnership articles 
 have been wholly broken through, and a dissolution and an injunc- 
 tion are sought on that ground (1). 
 
 7. A Court of Equity will grant an injunction to restrain a 
 partner, dnring the partnership term, from carrying on business 
 with other persons in the name of the old firm, and from publish- 
 ing notices of dissolution (2). So it will grant an injunction to 
 restrain one of two late partners from carrying on the partnership 
 business on his own private account, after a dissolution, and therehy 
 diminishing the value of the partnership property, and from im- 
 peding a receiver, and will direct the partner attempting to do so, 
 to account for profits (3). If, upon a bill for a dissolution of a 
 partnership, the Court is not able to say that a dissolution must 
 be declared at the hearing of the cause, it will not appoint a 
 receiver, as the appointment of a receiver operates as an injnnc- 
 tion; and the principle on which a Court of Equity acts with 
 regard to the appointment of a receiver in these cases, is this: 
 it will not appoint one on an interlocutory application, unless it 
 sees that there is an actual present dissolution arising from the 
 acts of the parties, or that at the hearing it would, upon the merits, 
 dissolve the partnership. If there be misconduct, a Court of 
 Equity can and will, before the time for the termination of the 
 partnership arrives, appoint a receiver ; and it will, though dis- 
 inclined to such orders, on a proper case being made, do so on an 
 interlocutory application (4). 
 
 8. The power and authority of a sole solvent partner, upon 
 the bankruptcy of his co-partner, to get in and sell the partnership 
 assets are vested in him personally for partnership purposes, to 
 enable him to wind up the affairs of the partnership, and cannot 
 be transferred by him to another, either by assignment of " aU 
 his share and interest " in the partnership, or by exposing himself, 
 
 (1) Oook V. Catchpole, 34 L. J. (Ch.) (3) Turner v. Major, 8 Giff. 442. 
 60; 10 Jur. (N. S.) 1068. (4) Baxter v. West, 28 L. J. (Ch.) 
 
 (2) England v. Gurling, 8 Bcav. 169. 
 129. 
 
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EBSTRAINT OP TRADE— BUSINESS, TRADES— PAETNEESHIP, ETC. 235 
 
 although hondfide, to a judgment, under, which all such share and Part ll. 
 interest is taken in execution, and it would seem that even the ^Sec™*. ' 
 partner himself might in some cases be restrained (1). And a sale 
 of partnership assets by an execution creditor of a solyent partner 
 claiming the sole property is a tortious conversion, and will be 
 restrained (2). So the assignees in bankruptcy of one partner will, 
 at the suit of the solvent partners, be restrained from selling the 
 partnership joint effects (3). 
 
 9. A Court of Equity wiU not restrain a partner who has, six 
 months previous to the application, been temporarily of unsound 
 mindj from interfering with the partnership affairs (4). It seems 
 to be now quite settled law that the actual insanity of a partner 
 is not of itself a dissolution of partnership, but that it is necessary 
 to obtain a decree for a dissolution, and that the dissolution does 
 not take place until the decree has been made ; and such a decree, 
 notwithstanding actual insanity proved to have existed before 
 the filing of the bill, will not be made, where there is any 
 dispute on the subject, without an inquiry whether at the time 
 when the relief is sought, the party is in such a state of mind 
 as to be able to conduct the business of the firm in partnership 
 with the other members according to the articles of partner- 
 ship (5). 
 
 10. A Court of Equity will interfere by injunction in cases of 
 partnerships constituted by verbal agreements, and will where 
 necessary, protect the partnership property from being received by 
 the partners, pending the taking of the accounts upon a dissolu- 
 tion of the partnership (6). If a party has been treated by the 
 defendant as a member of a partnership consisting of an associa- 
 tion of a great number of persons, he can maintain a suit to 
 preserve and secure the property of the association, and can 
 obtain an injunction to restrain the defendant from selling the 
 partnership property (7). 
 
 11. Though the principles of Courts of Equity will not permit 
 
 (1) Fraser v. Kershaw, 2 K. & J. Oh. 230. 
 
 496 ; 2 Jur. (N. S.) 880 ; 24 L. J. (4) Anon., 2 K. & J. 441. 
 
 (Ch.) 445. (5) lb. 
 
 (2) Tp. (6) Peacock v. Peacock, 16 Ves. 49. 
 
 (3) Allen v. Kilbre, 4 Madd. 4^4 ; (7) Sheppard v. Oxenford, 1 K. & 
 vide Francis v. Spittle, 9 L. J. (N. S.) Jl 491. 
 
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236 RESTRAINT OF TRADE— BUSINESS, TRADES— PARTNERSHIP, ETC. 
 
 Part II. that parties bound to eacli other by express or implied contract to 
 Sect. 4. promote an undertaking for the common benefit, should any of 
 them engage in another concern which necessarily would give them 
 a direct interest adverse to that undertaking, yet mere temptation' 
 to the abuse of partnership effects in consequence of joining in' 
 another concern is not sufficient to induce a Court of Equity to 
 grant an injunction (I). 
 
 12. If there are strong grounds for thinking that goods have 
 been purchased with partnership property, or with money for 
 which a defendant, as a partner, is accountable to the partnership, 
 and that the goods belong to the partnership, a Court of Equity 
 will restrain the defendant from receiving goods so purchased (2). 
 A partner in trade has no right to employ the partnership property 
 in a private speculation for his own benefit (3). 
 
 13. A Court of Equity will restrain a partner, after the determi-' 
 nation of his partnership, from disclosing a secret forming the 
 foundation of the business, communicated to him by another 
 partner, in breach of the latter's partnership agreement (4). 
 
 14. A party who has been manager and afterwards a partner in 
 a firm may, upon setting up a separate business, avail himself of 
 the reputation and confidence which he might gain from the world 
 by means of the statement of that fact, but he is not entitled to 
 make that statement or to avail himself of that reputation in a 
 way calculated to represent to the world that the business which 
 he is carrying on is that of the firm, or that a remaining member 
 of the firm has any interest in the business set up by the late 
 partner (5). 
 
 ' 15. The Court will not restrain an acting partner from collecting 
 debts, or creating them, unless it be shewn that the partner has 
 been guilty of culpable conduct, or is insolvent (6) ; nor will the 
 Court, on the application of one partner, restrain another from 
 using the partnership property or name, unless a case of misrepre- 
 
 (1) Glassington v. Thwaites, 1 S. & (5) Sookham v. Pottage, 21 W. B. 
 S. 124. 47 ; 20 W. R. 720 ; L. E. 8 Ch. 91, 95; 
 
 (2) Gardner v. M' Outchemi, 4 Beav. 27 L. T. (N. S.) 595 ; 26 L. T. (N. S.) 
 534. 755. 
 
 (3) lb. (6) Lawson v. Morgan, 1 Price, 303; 
 
 (4) Morison v. Moat, 21 L. J. et vide Bead v. Bowers, i Biu C. 0. 
 (N. S.) Oh. 248 ; 9 Hare, 241. 441. , , 
 
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RESTRAINT OF TRADE— BUSINESS, TRADES— PARTNERSHIP', ETC. 237 
 
 sentation or abuse is made out against him (1). But the Court ^^^'^ ^^■ 
 
 „ I . ^ . . 1 . "• Ohapteb III. 
 
 will restram a partner irom domg an intentional serious injury to Sect. 4. 
 
 the partnership property (2) 
 
 16. The Court will restrain a co-partner from interfering in 
 the management of the business, where the effect of suffering 
 him to interfere would be irreparable mischief to the partnership 
 business (3). 
 
 17. The Court will restrain a surviving partner from disposing 
 of the joint stock if he is in embarrassed circumstances and 
 spending the joint moneys on himself and family (4). 
 
 18. The Court will not restrain the granting of a lease to the 
 personal representatives of a deceased partner who had contracted 
 to take the same in his own name for the partnership trade, but 
 will restrain them from disposing of the lease when granted, 
 except for the benefit of the partnership and. for partnership 
 purposes, and with the assent of the surviving partner (5). 
 
 19. The Court will, at the suit of a surviving partner, grant 
 an injunction to restrain a sheriff from removing from the part- 
 nership premises, selling, or intermeddling with the partnership 
 effects, if the goods of the partnership have been taken in execution 
 for a debt due from the deceased partner, who died before the 
 writ was delivered to the sheriff (6). In such case the property 
 in the goods vested at Law in the plaintiff, the surviving partner, 
 before the writ was delivered to the sheriff (7). 
 
 20. Equity will not interfere in favour of a party claiming under 
 a biU of sale by one partner, where the assignee allows the other 
 
 ' partner to mingle undistinguishably the other partnership goods 
 with those in the bill of sale (8). 
 
 21. A sum borrowed by one partner on his own security does 
 not become a partnership debt by being applied for partnership 
 purposes, with the knowledge of the other partner ; and the Court 
 will restrain the proceeding with executions upon the partnership 
 
 (1) Eawkins v. Bloxhfo'rd, 1 L. J. (5) Alder v. Fouracre, 3 Sw. 489. 
 (Oh.) 142. . (6) Newell v. Townsend, 6 Sim. 
 
 (2) Marshall v. Watson, 25 Beav. 419. 
 501. (7) lb. 
 
 (3) Anderson v. Wallace, 2 Moll. (8) Chappel v. Cox, 18 Ind. 513 
 540. (Amr.). 
 
 (4) Eartu v. Schrader, 18 Yes. 317. 
 
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238 RESTRAINT OP TRADE— BUSINESS, TRADES— PARTNERSHIP, ETC. 
 
 Pabt II. assets for the private debts of one of several partners, and the 
 Sect. 4. execution creditors are only entitled to be paid their debts out of 
 
 the debtor's share of any surplus that may remain after all the 
 
 demands on the partnership are satisfied (1). 
 
 22. If a partner has excluded his co-partner, a Court of Equity 
 will grant an injunction to restrain him from obstructing or inter- 
 fering with his co-partner in the exercise and enjoyment of his 
 rights under the partnership articles (2). And the Court, will 
 restrain a defendant, who has removed the partnership books from 
 the place of business, from keeping them at any other place (3). 
 
 23. A Court of Equity will not interfere where the terms and 
 provisions of the partnership agreement are of a harsh descrip- 
 tion (4). 
 
 24. The Court will not interfere in cases of gross mismanage- 
 ment and neglect by some of the partners, until the other partners 
 have tried the means of redress and jurisdiction provided by the 
 articles, unless there is a positive necessity (5). If, however, a 
 case of delinquency is clearly made out, the Court will act ; but 
 there must be a positive necessity for the interference of the 
 Court (6). However, an agreement to refer disputes to arbitration 
 is generally no objection to a suit in a Court of Equity, yet the 
 nature of the subject, and an anxious provision of the parties for 
 arbitration, will prevent the Court from interfering before the 
 parties have taken that course (7). If the parties provide for 
 themselves a forwm, and introduce a guard against the forum of 
 the country, whether effectually or not, they shew their intention 
 against the interference of any other jurisdiction until they have 
 tried the effect of the special means provided by themselves; and 
 the object of an interlocutory motion for an injunction in such a 
 case would be to obtain something in the nature of judicial relief 
 against the effect of an express contract ; in such a case the Court 
 ought to be perfectly sure that the conduct of the defendant has 
 been such as to make such relief proper (8). 
 
 (1) Bevan v. Leivis, 1 Sim. 376 ; et (4) Oroft v. Eaw, 5 L. J. (N. S.) 
 vide Lindley on Partnership, 584-8, Ch. 305. 
 
 590, (5) Carlen v. Brury, 1 Ves. & B. 154, 
 
 (2) Hall V. Hall, 12 Beav. 414. (6) lb. 
 
 (3) Oreatrex v. Oreatrex, 1 De G. & (7) Waters v, Taylor, 15 Ves. 10. 
 Sm. 692. (8) lb. 
 
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RBSTEAINT OF TRADE— BUSINESS, TRADES— PARTNERSHIP, ETC. 239 
 
 25. A Court of Equity will entertain a bill to compel partners Paet ii. 
 to act according to the provisions of instruments which they have Seot.\. 
 executed, and, where it interferes for that purpose, will take care 
 
 that the decree shall not be defeated by anything done in the 
 meantime (1). A party taking the share of a partner in a concern 
 cannot be let loose from the obligations that partner is under to 
 the concern (2). 
 
 26. Partnership accounts may be taken in various ways ; the 
 distinction is, that in the absence of a special agreement, the 
 accounts must be taken in the usual way ; but where a special 
 agreement has been made, it must be abided by, provided the 
 parties have acted on it ; if not, the articles are read in a Court of 
 Equity as not containing the clauses on which the parties have not 
 acted (3). 
 
 27. Upon the non-performance of an agreement for a part- 
 nership entered into in' ignorance of facts which would prevent 
 the performance of the contract, a Court of Equity will relieve 
 from the payment of the agreed premium, or an apportioned 
 amount thereof, according to the result of the account (4). 
 A party in such a case not getting what he had bargained 
 for, according to the law of a Court of Equity, may come and 
 
 ask for relief with respect to the non-performance of the agree- » 
 
 ment (5). 
 
 28. The power of a solvent partner, upon the bankruptcy "of Bankruptcy, 
 his co-partner, to sell the partnership property, is a personal 
 authority, personal in himseK in his capacity of partner, which he 
 
 may exercise in that capacity to enable him to wind up the affairs 
 of the partnership, and to pay the debts thereof, and cannot be 
 assigned over to another as part of " all his right and interest " in 
 the partnership, or by exposing himself, although perfectly bond 
 fide, to a judgment, and allowing his share to be taken in execu- 
 tion ; and a Court of Equity will grant an injunction to restrain a 
 judgment creditor who has purchased all the share, right, and 
 interest of the solvent partner in the goods, and has subsequently 
 
 (1) Oonsi V. Harris, T. & E. 496, 470 ; 1 Wils. 297. 
 
 521, 528, 529. (4) Machenna v. Parhes, 15 W. R. 
 
 (2) lb. ' 217. 
 
 (3) Jackson v. Sedgwick, 1 Sw. 469, (5) lb. 
 
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240 RESTRAINT OF TRADE— BUSINESS, TRADES— PARTNERSHIP, ETC. 
 
 Pabt II. professed to sell the whole as his own property, from delivering 
 Ohaptcb hi 
 Sect. 4. ' possession of the goods to the purchaser (1). 
 
 29. The Court will, at the suit of the assignee of a bankrupt, 
 restrain trustees in whom funds are vested from transferring 
 them, if there is a probability that they may be proved to have 
 been the property of the bankrupt (2). 
 
 30. Although a bankrupt cannot be joined with his assignees iti , 
 a bill for specific performance of a contract by the bankrupt before 
 his bankruptcy, nor for discovery (3) ; yet a bankrupt can be 
 joined with his assignees where there is a charge of a .fraudulent 
 bankruptcy, and a case of confederacy to defeat the plaintiffs 
 execution (4). 
 
 31. The Court of Chancery has no jurisdiction, simpliciter,, to 
 restrain the party in whom the property of a bankrupt is vested 
 in bankruptcy (5), from making a dividend of that which is ad- 
 mitted to be the estate of the bankrupt, a,t the suit of a person 
 claiming as a general creditor, and not claiming any specific por- 
 
 ' tion of that estate as being his property. But if the question is 
 whether any assets, any personal estate, or any other species of 
 property which is in the hands of the assignee, as part of the 
 bankrupt's separate estate, is, in fact, the property of the plaintiff. 
 Courts of Law or Equity will decide the question, because the juris- 
 diction in bankruptcy has authority to deal only with that which 
 is the bankrupt's estate, but has no power to determine what is the 
 bankrupt's estate. If the question is a legal one, it must be tried 
 at Law ; if it be an equitable one, it must be decided in a Court of 
 Equity. But when it is determined what is the property of the 
 bankrupt, the whole administration of it falls under the jurisdic- 
 tion of the Court in Bankruptcy (6). But if there is an objection 
 
 (1) Fraser v. Kershaw, 2 K. & J. 496. (6) Ealford v. Qillow, 13 Sim. 44 ; 
 
 (2) Stead v. Glay, 4 Russ. 550; 1 correcting ^ife'rasora v. PZammer, cited 
 Sim. 294. in Eden, Inj., 298 ; Yewens v. nnbiiir 
 
 (3) Whitworth v. Davis, 1 V. & B. son, H Sim. 105 ; Maguirev. OBfMy, 
 545. 3 J. & Lat. 224 ; 2 Ir. Eq. 335 ; Perry 
 
 (4) KingY. MarUn,2'Ves.3vji.Ul. v. Walker, 1 T. & Coll. C. C. 672; 
 
 (5) Under the " Bankruptcy Act, Berkeley v. Bicker, 15 W. E. 899 (see 
 1869 " (32 & 33 Vict. c. 71) a trustee " The Bankruptcy Act, 1869," ss. 13, 
 is substituted for the assignees of former 65, 72, as to the jurisdiction of the 
 Bankrupt Acts, in whom all the pro- Bankruptcy Courts under that Act), 
 perty of the bankrupt vests, see ss. 14, 17. 
 
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RESTRAINT OP TRADE— BUSINESS, TRADES— PARTNERSHIP, ETC. 241 
 
 to a composition which applies only as between the debtor and a Pabt II. 
 particular creditor who is bringing an action, and every material Sect. i. 
 question is being raised by the parties in the action, the Court of 
 Bankruptcy will not restrain the action on the application of the 
 debtor'(l) ; nor will it restrain proceedings in a Court of Equity 
 against a bankrupt or liquidating creditor, where the bankruptcy 
 or liquidation would not be a bar to the claim made in the suit. 
 It is quite clear that the Court of Bankruptcy ought not to restrain 
 any suit or action against a bankrupt, to which the discharge of 
 the bankrupt would not be a defence (2). Whatever questions 
 have been decided in the Court of original jurisdiction which first 
 adjudicated upon a subject, should be considered as well decided 
 by a Court of merely concurrent jurisdiction (3). 
 
 32. Although a Court of Equity has jurisdiction, upon equitable 
 grounds, to restrain a party from taking proceedings to make a 
 person a bankrupt (4), still it will not interfere where proceedings 
 are being taken by an alleged creditor, with a view to making an 
 alleged debtor, a bankrupt in default of his satisfying the demand, 
 on the ground merely of an allegation that such proceedings are 
 dictated purely by fraud and malice, and that no debt was in fact 
 due (5). 
 
 33. The administration of trusts of a creditors' deed, valid and 
 binding under the Bankruptcy Act 1861, s. 192, belongs exclusively 
 to the Court of Bankruptcy ; and the Court of Chancery will not, in 
 ordinary circumstances, entertain a suit for the administration of 
 the trusts of such a deed (6). In such cases, the general rule is, 
 to leave such questions to the Court of Bankruptcy where it has 
 sufficient powers to enable it to deal with them (7). However, the 
 jurisdiction of the Court of Chancery in the administration of cre- 
 ditors' deeds is not excluded by the Bankruptcy Act, 1861 ; but 
 
 (1) Hx parte Watson, In re Watson, (4) Attwood v. Banks, 2 Beav. 192. 
 L. R. 2 Oh. D. 63; 24 W. B. 592 ; (5) Pirn v. Wihon, 2 Ph. 653. 
 
 34 L. T. 779. (6) Bell v. Bird, L. R. 6 Eq. 635 ; 
 
 (2) Ex parte Ooher,Re Blake,!,. B. 16 W. R. 1165. 
 
 10 Oh. 652 ; 44 L. J. (Bkcy.), 126 ; et (7) Martin v. Pawning, L. E. 4 Oh. 
 
 vide Ex parte Barold, Re Meade, 24 356 ; 38 L. J. (Oh.) 212 ; 20 L. T. 
 
 "W. B. 903; 45 L. J. (Bkcy.) 121; 34. (N. S.) 133; 17 W. B. 386; et vide 
 
 L. T. 663 ; Ex pa/rte Smith, Re Collie, Phillips v. Furher, L. B. 5 Oh. 746 ; 
 
 24 W. B. 310 ; 45 L. 1. (Bkcy.) 116. 18 W. B. 985 ; 22 L. T. (N. S.) 707. 
 
 (3) Thompsonv. Derham,lB.nre,358. 
 
 E 
 
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242 EBSTRAINT OF TRADE— BUSINESS, TRADES— PABTNEESHIP, ETC. 
 
 Part II. the Court will not exercise its iurisdiction except in cases where 
 
 CHAPTBB in. , _ „ -^ , . ■,-, ■ ■ 1 i !• i./,\ -r 
 
 Sect. 4. the Court of Banki-uptcy is unable to gire adequate reliet (1). If 
 there is a doubt whether a particular deed is void as a composition 
 deed, hut it is still sufficient to enable persons claiming under itj 
 to come to a Court of Equity, and all that is required can be 
 conveniently effected under directions given in the Court of Equity^ 
 the jurisdiction of a Court of Equity is not ousted, and it will not 
 stay proceedings in an action in a Court of Equity to have the 
 property realized, with a view to the payment of the balance of a 
 debt still due (2). The Court of Chancery has jurisdiction to 
 appoint a receiver, where it is necessary, to prevent irreparable 
 mischief from breach of covenant, although the property may have 
 to be distributed in Bankruptcy, and though the Court of Bank- 
 ruptcy may be able to give the same relief (3). 
 
 34. Although, where a trust has been created for an illegal 
 purpose, a Court of Equity will not in general interfere, it will do 
 so where the illegal purpose fails to take effect ; thus an assignee 
 of leaseholds, holding under an assignment made with the view of 
 defeating creditors, will be directed to re-assign the property to the 
 assignor, claiming under an arrangement under the Bankruptcy 
 Act, 1861, s. 110, by which his property has been re-vested in 
 him (4). A Court of Equity will restrain the alienation of pro- 
 perty conveyed by a deed which is fraudulent as against the 
 creditors in bankruptcy of the alienor (5). 
 
 35. Equity will relieve against a judgment which has been 
 discharged by proceedings in bankruptcy (6). So a suit will be 
 restrained on a claim which has been expunged in bankruptcy (7)» 
 
 (1) Stone V. Thomas, L. R. 5 Ch. 475; 39 L. J. (Ch.) 304; 22 L. T. 
 219; 39 L. J. (Oh.) 168; 18 W. R. (N. S.) 462. 
 
 385 ; 22 L. T. (N. S.) 359. (5) Bey/us v. Bullock, L. R. 7 Eq. 
 
 (2) Jenney v. Bell, L. R. 2 Oh. D. 391 ; 17 W. R. 526 ; 20 L. T. (N. S.) 
 547 ; 45 L. J. (Oh.) 369 ; 34 L. T. 485 ; 166. 
 
 24 W. E. 550. (6) Peatross v. McLaugMin, 6 
 
 (3) Riches v. Owen, L. R. 3 Oh. Grratt. 64 (Amr.). 
 
 820; 16 W. R. 1072. (7) Pease v. Bennett, 17 N. H. 124 
 
 (4) Symes v. Hughes, L. R. 9 Eq. (Amr.). 
 
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BILLS OF SALE, SALES, ALIENATIONS, MOETGAG-ES— JUDGMENTS, ETC. 243 
 
 Sect. 5. Bills of Sale, Sales, Alienations, Mortgages — Jvdgments, Paet ii. 
 Charge, Executions — Liens, Charges — Stoppage in Transitu. Chapter ill. 
 
 1. If there is no trust, and the plaintiff has his remedy at Law, buis of sale, 
 a Court of Equity will not interfere to restrain a sale of goods — luenations 
 for instance, to restrain a sheriff from selling goods of the plaintiff Mortgages. 
 on the lands of an execution debtor (1). 
 
 2. At Law, non-existing property to be acquired at a future 
 time, is not assignable ; in Equity, it is so. At Law, although a 
 power is given in a deed of assignment to take possession of after- 
 acquired property, no interest is transferred, even as between the 
 parties themselves, unless possession is actually taken ; in Equity, 
 the moment the property comes into existence, the agreement 
 operates upon it, and the beneficial interest in the property is 
 transferred, as soon as it is acquired, to a vendee or mortgagee, 
 who may have an injunction to restrain its removal (2). There is 
 no exclusive right in a subject — for instance, a secret medicine — 
 not protected by patent, to prevent a sale by another person under 
 the same title, that other person not assuming the name and 
 character of the plaintiff (3). If the defendant merely represents 
 that he sells, not the plaintiff's article, but one of as good a 
 quality, he is at perfect liberty to do so (4), 
 
 3. If the treasurer of a corporation is one of the mortgagees 
 of the capital stock of the corporation, a Court of Equity will 
 restrain a sale under a power in the mortgage, until the treasurer 
 shall have furnished to the mortgagor any information relative to 
 the condition of the corporation, and affecting the value of the 
 stock, which the treasurer may have obtained by virtue of his 
 office, beyond what appears from the books of the corporation (5). 
 
 4. The mortgagee of business premises who is in possession, 
 has a right to carry on the business — not indefinitely, but for a 
 reasonable time — ^if his object is to reimburse himself by dis- 
 
 (1) Jackson V. Stanhope, 15 L. J. 218; see Morison v. Moat, 9 Hare, 
 (N. S.) Ch. 446 ; 10 Jur. 676. 241 ; and see the " Exhibition Medals 
 
 (2) EoVroyd v. Marshall, 10 H. L. C. Act," 1862 (26 & 27 Vict. c. 119). 
 191; 9 Jur. (N. S.) 213; 11 W. E. (4) Canhamv. J<mes,2V. &B.221. 
 171 ; 9 W. R. 303. (5) Frieze v. Chapin, 2 E. I. 429 
 
 (3) Ganham v. Jones, 2 V. & B. (Amr.). 
 
 k2 
 
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244 BILLS OP SALE, SALES, ALIENATIONS, MOETGAGES— JUDaMENTS, ETC. 
 
 Part n. 
 
 Chapter III. 
 
 Sect. 5. 
 
 Judgments, 
 
 Charge, 
 
 Executions. 
 
 Liens, 
 Charges. 
 
 posing of the business as a going concern, and the Court will not 
 restrain him from so doing (1). 
 
 5. A judgment creditor cannot obtain a charge on an equitable 
 debt, by analogy to attachment of a legal debt under the garniehee 
 clauses of the Common Law Procedure Act, 1854 (2). 
 
 6. There can be no execution against goods in the hands of a 
 trustee, and the Court will restrain a judgment creditor of a 
 cestui que trust from enforcing his judgment against such goods (3). 
 It is held, in general, that the jurisdiction of Equity to enjoin a 
 sale of real estate is co-extensive with its jurisdiction to set aside 
 a deed of the property, and order it to be cancelled (4). So that, 
 if a valid judgment at Law be iniquitously used. Equity will 
 annul what has been improperly done under it (5). So Chancery 
 will grant an injunction to prevent a party from making use of a 
 legal writ of execution for the purpose of vexation and injustice (6) ; 
 or to restrain the sale of property illegally taken in execution (7). 
 An execution sale may be enjoined, where it would cause a cloud 
 on the title of the complainant (8). 
 
 7. A Court of Equity will, by means of an injunction, enforce 
 liens on the proceeds of a cargo ; and the consignee of a cargo, by 
 agreement with the owner chartering a ship, and expending the 
 money necessary and proper in order to enable her to fetch the 
 cargo, is, without any special agreement to that effect, entitled to 
 a lien on the proceeds of such cargo in his hands for the advance 
 so made ; and a person who is not the consignee has, under such 
 circumstances, a similar lien on the proceeds of the cargo, if he 
 can arrest such proceeds before they come to the hands of the 
 skipper of the cargo (9). So the Court will enforce a lien for 
 moneys advanced to complete a ship, and will restrain the selling, 
 
 (1) Oooh V. Thomas, 24 "W. E. 427. (5) Bissell y.'Bozmm, 2 Dev. CL 
 
 (2) Eorsley v. Cox, L. E. 4 Ch. 92 ; 160 (Amr.). 
 
 38 L. J. (Ch.) 285 ; 20 L. T. (N. S.) (6) Colt v. Cornwell, 2 Boot, 109 
 
 128 ; 17 W. E. 596. (Amr.). 
 
 (3) Cailland v. Estwick, 2 Anstr. (7) Kenyan v. ClwrU, 2 E. I. 67 
 381. (Amr.). 
 
 (4) Pixhy V. Huggina, 15 Cal. 127 (8) Key, &c. v. Munsdl, 19 Iowa, 
 (Amr.). 305 (Amr.). 
 
 (9) Toung v. Neill, 32 Beav. 529 ; 9 Jur. (N. S.) 967. 
 
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BILLS OF SALE, SALES, ALIENATIONS, MORTGAGES— JUDGMENTS, ETC. 245 
 mortgaging, or otherwise dealing with the ship so as to prejudice Part ii. 
 
 4.1 -l; /i\ ChAPTKK III. 
 
 the lien (1). S^ct. 5. 
 
 8. There is a lien upon a brewers' lease for moneys advanced to 
 complete the purchase, created by deposit of the deed with the 
 brewers simultaneously with the creation of the lease, and a Court 
 of Equity will restrain an action by the assignees in bankruptcy 
 of the borrower, brought by them against the brewers, to recover 
 a part of the purchase-money of the lease (2). 
 
 9. An agent carrying on, in his own name, the business of his 
 principal, has a lien on the property of the concern to the extent 
 of his liabilities for the concern ; and the Court will restrain the 
 assignees in bankruptcy of the principal from taking possession 
 of or selling the business, or premises, or stock, and from collecting 
 moneys due to, or in any way intermeddling or interfering with 
 the concern (3). 
 
 10. A Court of Equity wiU restrain garnishees from paying a 
 fund which has been attached under the 17 & 18 Vict. c. 26, s. 61, 
 to the judgment creditor, until a solicitor's lien thereon for costs' 
 is satisfied (4). The Court will restrain an action by the assignees 
 in bankruptcy of a country solicitor, against the client, for the bill 
 due to the country solicitor ; if the client has paid the agent his 
 bill, in order to obtain the papers in the agent's hands, the agent 
 has a lien upon the papers for his own costs ; and if the client dis- 
 charge the agent's biU, he is entitled to stand in the agent's 
 place (5). 
 
 11. An agreement that a judgment debt, and interest thereon, 
 shall be paid to the judgment creditor out of any moneys which 
 may be recovered by the judgment debtor in respect of certain 
 claims by him against third parties, creates a valid equitable 
 charge upon these moneys when recovered ; and the Court will 
 xestrain the judgment debtor from receiving the moneys paid into 
 a Court of Law, until the judgment debt and interest are paid (6). 
 
 (1) Swainston v. Clay, 11 W, E. (4:)'Sympson v. Profhero, 3 Jur. 
 811 ; 3 De G. J. & S. 558 ; 32 L. J. (N. S.) 711 ; 26 L. J. (Ch.) 671. 
 (Ch.) 503 ; 8 L. T. (N. S.) 563. (5) Bray v. Eine, 6 Price, 203 (et 
 
 (2) Meux V. Smith, 1 M. D. & De G. vide Beames on Costs ia Equity, p. 214, 
 396 ; 2 M. D. & De G. 315, 789 ; 11 2nd Ed.). 
 
 Sim. 410. (6) Ekcard v. Prichard, 1 K. & J. 
 
 (3) I'oxcra/t v. Wood, 4 Euss. 487. 277. 
 
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246 
 
 GEANTS— SETTLEMENTS. 
 
 Part II. 
 
 Chapter III. 
 
 Sect. 5. 
 
 Stoppage in 
 transitu. 
 
 12. A bill in Equity will lie to enforce a right of stoppage in 
 transitu, and that right is a proper subject for a bill in Equity (1). 
 And the Court will restrain the sale of goods where the tramilm 
 is not over (2). The transitus of goods is not ended, by delivery 
 on board a ship chartered by the vendee ; but the right of stoppage 
 in transitu extends only over the goods themselves, and it also 
 entitles the vendor to the net proceeds of the sale thereof (3). The 
 question in deciding upon a consignor's right of stoppage w trcm- 
 situ is, not whether the voyage is at an end, but whether the goods 
 are at home, actually or constructively in the possession of the 
 vendee (4). 
 
 Sect. 6. Grants—, 
 
 Grants. 1. Whether a conveyance of land for the purpose of a railway 
 
 being constructed thereon, be voluntary or compulsory, every 
 grant carries with it, in addition to any special protection afforded 
 by the Railway Act, all that is necessary to the enjoyment of the 
 subject-matter of it ; and a certain amount of lateral support being 
 essential to the safety of the railway, that is a necessary inci- 
 dent of the grant. But the amount of support depends on the 
 special circums£ances of the locality (5). If it be impracticable 
 to define beforehand the limits within which workings dangerous 
 to the stability of the subject-matter of the grant ought to be 
 restrained, an injunction is properly expressed in general terms 
 against working so as to produce the particular eTril appre- 
 hended (6). So, on the other hand, at Common Law, if a person 
 has two interests in the same hereditament and demises one part, 
 reserving to himself the other, the grantee, either for years or in 
 fee, will not, except by express stipulation or very direct impliT 
 
 (4) Coventry v. Gladstone, L. E. 6 
 Eq. 44 ; 37 L. J. (Ch.) 492 ; 16 W.E. 
 837. 
 
 (1) Schotmans v. Lancashire and 
 Yorkshire Bailw. Co., L. E. 2 Ch. 332 ; 
 L. E. 1 Eq. 349 ; 14 W. B. 270; 12 
 Jur. (N. S.) 42. 
 
 {2).Fraser v. Witt, L. E. 7 Eq. 64; 
 17 W. E. 92 ; 19 L. T. (N. S.) 440. 
 
 (3) Berndtson v. Strang, 27 L. J. 
 (Oh.) 665 ; L. E. 3 Ch. 588 ; 16 W. E. 
 1025; 19 L. T. (N. S.) 40; L. E. 
 4 Eq. 481. 
 
 (5) Elliott V. North Eastern Bailw. 
 Co., 1 J. & H. 145 ; 29 L. J. (Oh.) 
 808 ; 2 De G. F. & J. 423 ; 30 L. J. 
 (Ch.) 160; 8 L. T. (N. S.) 337; 32 
 L. J. (Ch.) 402. 
 
 (6) lb. 
 
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PENSIONS. 247 
 
 cation, be permitted to use.the portion held by him, so as to inter- Part iI: 
 fere with the enjoyment by the grantor of the portion of which he ^'seot.^6™" 
 
 has retained possession (1). 
 
 2. A Court of Equity will direct trustees of funds in settlement Settlements, 
 to deal with them according to the trusts of the settlement, not- 
 withstanding a notice not to do so, unless proceedings are taken 
 upon the notice (2). If a settlement, though for good considera- 
 tion, is voluntary, as between the persons claiming under it and a 
 purchaser for valuable consideration, though with notice, the pur- 
 chaser will hold the estate ; such a settlement is void under the 
 27 Eliz. c. 4, against such a subsequent purchaser, though a fair 
 provision for a wife and children, and the Court will not restrain 
 the husband from selling (3). But the cestuis que trust are en- 
 titled, until an actual sale, to an execution of the trusts (4). But 
 when a voluntary settlement of lands is avoided by a subsequent 
 sale for valuable consideration, the volunteers have no equity 
 against the purchase-money payable to the settlor (5). A Court 
 of Equity will, upon sufficient evidence of the trusts, establish a 
 settlement destroyed by fraud, and will restrain an intended sale 
 of the property by the party committing the fraud, and direct the 
 trusts of the settlement to be carried into effect (6). The Court 
 wiR grant an injunction against proceedings at Law by a cove- 
 nantee to enforce a covenant for charging a sum of money upon 
 lands, by way of a portion for a daughter of the covenantor, upon 
 the covenantor offering to execute any instrument which should 
 be deemed necessary for charging the same (7). 
 
 Sect. 7. Pensions. 
 
 1. An assignment for valuable consideration by a retired mili- 
 tary officer of his pension for past services, is void under the 
 47 Geo. 3, sess. 2, c. 25, s. 4 ; and a Court of Equity will not 
 
 (1) Dugdale v. Edbertson, 3 K. & J. (4) lb. 
 
 695 ; 3 Jur. (N. S.) 687. (5) Bakin v. Whimper, 26 Beav. 
 
 (2) Lonergah v. Stourfon, 9 Jur. 568. 
 
 (N. S.) 1067 ; 11 W. E. 984 ; 9 L. T. (6) Brandon v. Barlow, 13 L. T. 
 
 (N. S.) 196. (N. S.) 6, 
 
 (3) Pulverto/t v. Pulvertoft, 18 Ves. (7) Whaley v. Morgan, 2 D. & Wal. 
 84, 90. 330. 
 
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248 PENSIONS. 
 
 Past II. restrain the officer from applying for or receiving the pension (1). 
 
 ^Se™7. ^^' ^^^ ^ retired officer in the army will be restrained from intercept* 
 ing the receipt of a pension for wounds, &c., granted " until further 
 order," which he has assigned as security for the payment of a re- 
 deemable annuity (2). But pensions granted by the G-OTermnent 
 of India to military persons employed in India for the purpose of 
 the Indian goyernment, may be assigned as security for a debt, as 
 such pensions are not within 46 Geo. 3, c. 69 ; and 47 Geo. 3, 
 sess. 2, c. 25 (3). And an East India Company's pension, payable 
 by the Secretary of State for India, is assignable by way of mort- 
 gage, and in the event of a foreclosure of the mortgage becoming 
 absolute, the Court will direct the mortgagor to execute a power 
 of attorney enabling the mortgagee to receive the pension (4). 
 So independently of the 47 Geo. 3, sess. 2, c. 25, a pension for 
 past services may be aliened, but a pension for supporting the 
 grantee in the performance of future duties is inalienable (5). 
 
 2. A retired storekeeper of one of Her Majesty's dockyards will 
 be restrained from receiving the balance of his pension after a 
 provision for his creditors in insolvency, where he has assigned 
 the pension to secure a loan ; he cannot be allowed to violate the 
 contract made by him with the assignees (6). And it would seem 
 that compensation allowance for the loss of an office in the Customs, 
 though revocable at the pleasure of the Government, is assign- 
 able (7). If the duties of an office are not connected with the 
 public service, as, for instance, those of a canonry of Windsor, the 
 payment of the income of the canonry may be restrained in favour 
 of a grantee of the profits as a security'for a sum of money (8). 
 But there are various cases in which public duties are concerned, 
 in which it might be against public policy that the income arising 
 from the performance of those duties should be assigned ; and for 
 this simple reason, because the public is interested, not only in the 
 
 (1) Lloyd V. Oheetham, 3 Giff. 171 ; (5) Davis v. Duke of MarlborougK 
 9 W. E. 924. 1 Sw. 79. 
 
 (2) Knight v. Bulheley, 5 Jur. (6) Lloyd v. EagU, 5 Jur.-(N. S.) 
 (N. S) 817 ; 4 Jur. (N. S.) 527 ; 27 187 ; 28 L. J. (Oh.) 389. 
 
 L. J. (Oh.) 592. (7) Tunstall v. Boothby, 10 Sim. 
 
 (3) Garew v. Cooper, 4 Giff. 619. 542 ; 9 L. J. Oh. (N. S.) 294. 
 
 (4) James V. Ellis, 19 W. E. 319; (8) Gren/ellY. The Dean and Canons 
 24 L. T. (N. S.) 12. of Windsor, 2 Beav. 544. 
 
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PENALTIES, CONDITIONS. 249 
 
 performance from time to time of the duties, but also in the fit Pabt li. 
 state of preparation of the party having to perform them ; such seot. 7. 
 is the reason in the cases of half-pay, where there is a sort of 
 retainer, and where the payments which are made to officers 
 from time to time are the means by which they, being liable 
 to be called into public service, are enabled to keep themselves 
 in a state of preparation for performing their duties ; if, therefore, 
 they were permitted to deprive themselves of their half-pay, they 
 might be rendered unable promptly to enter upon their duties 
 when called upon, and the public service would be thereby greatly 
 injured (1). So, also, where a pension or remuneration is given 
 for a purpose which tends less directly to the public benefit, as, 
 for instance, in the case of the pension given to the Duke of 
 Marlborough as a memento of the gratitude of the nation, and as 
 a reward for his distinguished public services ; it was there the 
 intention of the Legislature that it should be kept in mind, that 
 it was givoQ for those great services ; in that case the pension 
 was held inalienable, because it was considered that one of the 
 objects of giving the pension, namely, for having a perpetual 
 memorial of national gratitude for public services, would be 
 entirely lost (2). The pension of a great public officer cannot 
 be aliened, because that public officer must not be allowed to 
 fall into such a situation as to make it difficult for him, in con- 
 sequence of any pecuniary embarrassment, to maintain the dignity 
 of his office (3). But if it is a service to be performed for the 
 benefit of the party himself, the profits of the office are a valid 
 security (4). 
 
 Sect. 8. Penalties, Conditions. 
 
 1. If the rights of a third party are involved, a Court of Equity 
 will treat a condition attaching in default of payment of a sum 
 of money as a penalty, and will relieve against the penalty being 
 
 (1) Orenfell v. The Dean and (3) Davis v. The Duhe of Marl- 
 Canons of Windsor, 2 Beav. 544. lorough, amte. 
 
 (2) Qrenfell v. The Dean and (4) Qrenfell v. The Dean and 
 Canons of Windsor, ante ; Davis v. Canons of Windsor, 2 Beav. 544. 
 
 The Duhe of Marlborough, 1 Sw. 74. 
 
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250 PENALTIES, CONDITIONS. 
 
 Part II. enforced (1). A proviso in a mortgage for the payment of a larger 
 Sect. 8. ^^^ ^^^ interest, if the smaller sum for interest is not paid within 
 a certain time, is in the nature of a penalty, and will be relieved 
 against (2) ; but it is otherwise, if a larger sum for interest is 
 reserved originally, to be reduced to a smaller sum for interest, if 
 paid within a certain time (3). But the reservation of a right to 
 have full payment of money actually due on an existing contract, 
 should there be a failure to pay a smaller sum on a day certaiL, 
 will not be treated as a penalty, nor is it a penalty or forfeiture, 
 or anything of the kind, but simply a provision that, upon the 
 terms upon which the indulgence is granted not being complied 
 with, the original rights shall be preserved^ and that the creditor 
 shall be entitled to avail himself of those rights ; and such a 
 remitter to his original rights does not constitute a penalty, and 
 Equity will not interfere to prevent its observance (4). 
 
 2. A Court of Equity wiU not allow a covenant which is in 
 effect a penalty, and not in the nature of liquidated damageSj to 
 be violated (5). Equity will relieve against a penalty for not 
 performing an unreasonable contract (6). If a proviso is binding 
 and plainly intended to be part of a security for the debt, and in 
 no way in the nature of a penalty, a Court of Equity will refuse 
 an injunction to restrain an action brought for the amount due (7). 
 
 3. Equity will, in many cases, carry on the debt beyond the 
 penalty of the security, as where a man is kept out of his money 
 by an injunction, or is prevented from going on at Law (8). So, 
 where an advantage is made of money, interest shall be carried 
 beyond the penalty (9), So, where a bond is only , taken as a 
 collateral security (10) ; or where the recovery of the debt is 
 
 (1) Carrol v. O'Connor, 11 Ir. Eq. (6) Thompson v. Harcourt, 1 Bio. 
 Eep. 200. P. 0. 193. 
 
 (2) Strode v. Parker, 2 Vern. 316, (7) Sterne v. Beck, 1 De G. J. & 
 2nd Ed. S. 595 ; 32 L. J. (Oh.) 682 ; 11 W. B. 
 
 (3) Strode v. Pa/rker, supra; Holies 587 ; 8 L. T. (N. S.) 344. 
 
 V. Wyse, 2 Vern. 289 ; et vide Nicholls (8) Lmal v. Terry, Show. P. 0. 15; 
 
 V. Maynard, 3 Atk. 519; Bonafons fla?e v. TAomas, IVem. 350,2ndEd.; 
 
 V. Rylot, 3 BuiT. 1374. 2 Oh. Ca. 182, 186. 
 
 (4) Thompson v. Hudson, L. E. 4 (9) Bunsany (Lord) v. Plmhett, 
 H. L. 1, 15 ; 38 L. J. (Oh.) 431 ; L. R. 2 Bro. P. C. 251. 
 
 2 Bq. 612 ; L. R. 2 Oh. 255. (10) Kirwane v. Blake, 2 Bro. P. C. 
 
 (5) Carden v. Butler, Hay & J. 112. 333. 
 
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POWERS. 251 
 
 delayed by the obligor (I) ; or the creditor — obligee in a bond — Pabt II. 
 has been restrained by an injunction obtained by the debtor, seot. 8. 
 from proceeding at Law, and there has been no misconduct -on 
 the part of the creditor (2). 
 
 4. Penalties and forfeitures must, as a general rule, be waived 
 by a party seeking equitable relief (3). 
 
 Sect. 9. Powers. 
 
 1. A party may deprive himself of the right of executing a 
 power, for instance, if a tenant for life in lands, who has obtained 
 an injunction to restrain proceedings at Law to recover moneys 
 secured on bonds, enter into a consent in the cause with his 
 creditors, by which it is agreed that a certain sum shall be found 
 due on the foot of the bonds, and a decree is pronounced declaring 
 that this sum is due and well charged on the lands ; the consent 
 thus acted on and embodied in the decree, is such an act of 
 contract on the part of the debtor as will deprive him of the 
 right of executing a power to charge his life estate with portions 
 for younger children, so as to affect the rights of the creditors 
 under the decree which had attached upon his life estate (4). 
 
 2. A Court of Equity will, in favour of persons standing in the 
 situation of purchasers for value, supply a defect in the execution 
 of a power, which consists in the want of some circumstance re- 
 quired in the manner of the execution, as the want of a seal, or 
 of a sufficient number of witnesses, or where it has been exercised 
 by a deed instead of a will ; but will not do so on the ground of 
 the non-execution of a power, nor will it grant an injunction to 
 restrain proceedings at Law instituted on that ground (5). 
 
 (1) PvMemey v. Warren, 6 Ves. Jun. (4) Piers v. Tinte, 1 D. & Wal. 
 92 ; et vide Ola/rke v. Seton, lb. 411. 279. 
 
 (2) Grant v. Grant, 3 Euss. 598. (5) Cockerel v. Cholmdey, 3 Euss. 
 
 (3) Colhurn r. Simms, 2 Hare, 554 ; 565 ; 1 Euss. &,My. 418 ; Taml. 435 ; 
 Mason v. Murray, cited 3 Bro. 0. 0. 1 CI. & F. 60; 6 Bllgh, 120. 
 
 40. 
 
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252 CHARITIES. 
 
 Part II. Seot. 10. Charities. 
 
 Chaptee III. 
 
 1, Nothing is better established than that the Court of Chancery 
 does not entertain a general jurisdiction, or regulate or control 
 charities established by charter, unless the governors have also 
 the management of the revenues; in that case the Court does 
 assume a jurisdiction of necessity, so far as they are considered 
 trustees of the revenue, and abuse their trust (1). A Court of 
 Equity will decide of what denomination of religion an endowed 
 school is, and of what church the trustees and master ought to 
 be members, and to what religious denomination of scholars the 
 instruction is open (2). But though it may hold that a trustee 
 was originally improperly appointed, it may still decline to remove 
 him, there being a great difference between appointing trustees 
 in the first instance and removing them when once appointed (3), 
 If the revenues of a charity grammar-school have increased 
 largely, it will restrain the appointment of a new master until 
 something has been settled as to a new scheme (4). The Court 
 will restrain the exercise arbitrarily of a power and trust to 
 remove a master (5). The master of a free grammar-school has 
 an estate of freehold in his office, and is not removable at the 
 pleasure of the patrons of the school, and the Court will restrain 
 an ejectment brought by the patrons to evict the master from the 
 possession of the school-house (6). But under the Public Schools 
 Act, 1868 (.31 & 32 Vict. c. 118, ss. 13, 28), the head masters of 
 all the great public schools to which that Act applies are subject 
 to the control of the governing body of each school, and they hold 
 their office at the pleasure merely of the new governing bodies, 
 and are liable to be dismissed without notice and without any 
 reason being assigned. And all arbitrary powers, such as that 
 
 (1) AU.-Qen. y. Governors of The (6) Chipping Sodbwry (Grammar 
 ■Foundling Hospital, 2 Ves. Jun. 42. School of), 8 L. J. (Ch.) 13. See now 
 
 (2) Att.-Oen. v. Clifton, 32 Beav. as to the removal of schoolmasters or 
 596 ; 9 Jur. (N. S.) 939 ; 9 L. T. mistresses or any other officer of » 
 (N. S.) 136. charity, " The Charitable Trusts Act, 
 
 (3) Ih. 1853" (16 & 17- Vict. c. 137, s. 22); 
 
 (4) Att.-Gen. v. Warden, &e. of "The Charitable Trusts Act, 1860" 
 houth Free School, 14 Beav. 201. (23 & 24 Vict. c. 136, s. 14). 
 
 (5) Willis V. Ghilde, 13 Beav. 117. 
 
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CHARITIES. 253 
 
 of dismissal, may be exercised without assigning any reason, pro- Part li. 
 Tided they are fairly and honestly exercised, which they wiU Sbo™o. ' 
 always be presumed to have been until the contrary is shewn (1). 
 
 2. If the master of a grammar-school is only an officer of a 
 foundation, and not a eestm que trust, in the sense in which the 
 word " trust " is used in a Court of Equity in the ordinary case 
 of trustee and cestui que trust, of the stipend and emoluments of 
 the ofiSce, such a Court has no jurisdiction to interfere to prevent 
 the removal of the master from his office, nor to do so pendente 
 lite, nor to prevent the appointment of another one in his stead, 
 unless a special case for that purpose is made by the proceed- 
 ings (2). 
 
 3. A Court of Equity will decide whether or not an election 
 of an object for a charity shall or not be set aside, where there 
 is a charge that the election has been obtained by colourable means, 
 and not hand fide (3). 
 
 4. Agreements between a master of a free grammar-school and 
 the patrons as to the mode of conducting the school, which have 
 a tendency to alter its character, are invalid, and do not bind the 
 master ; and the patrons are guilty of a breach of duty when they 
 require or induce a master, or a candidate for the office of master, 
 to enter into such agreements (4). 
 
 5. A Court of Equity has jurisdiction over ecclesiastical pro- 
 perty when affected by a trust (5). Such a Court, in the absence 
 of information as to the exact meaning to be attributed to the 
 words in the trust deed, or deed of endowment of a church, by 
 which the specific purposes of the "trust are professed to be 
 
 (1) Eayman v. Governors of Bughy dowed schools, " The Endowed Schools 
 School, L. E. 18 Bq. 28, 68 ; 43 L. J. Act, 1860 " (23 Vict. c. 11), « The 
 (Ch.) 834; 22 W. E. 587; 30 L. T. Endowed Schools Act, 1868" (31 & 32 
 (N. S.)217. Vict. c. 32), "The Endowed Schools 
 
 (2) WMston V. Dean and Chapter Act, 1869" (32 & 33 Vict. o. 56), 
 of Bochester, 7 Hare, 532; 18 L. J. "The Endowed Schools Act, 1873 (36 
 (N. S.) Oh. 473. & 37 Vict. c. 87), "The Endowed 
 
 (3) MheringtonY. Wilson, 24: W.B.. Schools Act, 1874" (37 & 38 Vict. 
 303; 45 L. J. (Oh.) 153; 33 L. T. c. 87). 
 
 (N. S.) 652. (5) Att.-Oen. v. St. John's Hospital, 
 
 (4) Ohippmff Sodbury (Free Gram- Bedford, 2 De G. J. & S. 621 ; 11 Jur. 
 mar School of), 8 L. J. (Oh.) 13. See (N. S.) 629. 
 
 further as to the statutory law of en- 
 
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254 WILLS, PROBATES, LETTERS OF ADMINISTRATION. 
 
 Part u. indicated, will not put a construction on them, but will restrain 
 Sect. 10. the trustees from using the church for any other purposes than 
 " those specified in the deed itself, and in the words of that deed (1). 
 But the Court will direct a chapel, in which it is shewn that the 
 nature of the religious service has been changed from that of its 
 original foundation, to be restored to those professing the original 
 doctrines of the (Jeed of endowment, and will remove the trustees 
 who have concurred in this change and appoint new ones (2), 
 
 6. A Court of Equity will not assist the trustees of a chapel 
 who have dismissed the minister under proceedings which, from 
 not being taken in accordance with the deed of settlement, are 
 invalid — by restraining the minister from acting as minister of 
 the chapel (3). But if a minister of a dissenting chapel has been 
 duly dismissed, he will be restrained from officiating in the 
 chapel (4). 
 
 Sect. 11. WiUs, Probates, Letters of Administration. 
 
 1. Where parties are dissatisfied with a probate, a Court of 
 Equity will suspend its determination till after a trial upon its 
 validity, in the proper Court ; and though neither a Court of 
 Equity nor a Court of Law can determine the validity of a 
 probate in an " adversary " way, yet if it come before the Court 
 on an incident in the cause, and that incident is admitted by the 
 parties, a Court of Equity or a Court of Law may determine it, 
 and hold the parties bound by their admission ; and if either of 
 the parties were to bring a new suit to contest that determinafai 
 a Court of Equity would certainly grant a perpetual injunc- 
 tion (5). Although the jurisdiction of Courts of Equity, pending 
 
 (1) Att.-Gen. v. Mimro, 9 Jur. 461. the statutory law of charities, " The 
 
 (2) AU.-Oen. v. Aust, 13 L. T. Charitable Trasts Act, 1853" (16 & 
 (N. S.) 235. 17 Vict. c. 137), " The Charitable 
 
 (3) Dean ^.Bennett, L. R. 6 Oh. 489 ; Trusts Amendment Act, 1855 " (18 & 
 L. R. 9 Eq. 625; 22 L. T. (N. S.) 19 Vict. c. 124), "The Charitable 
 368; 24 L. T. (N. S.) 169; 39 L. J. Trusts Act, 1860" (23 & 24 Vict. c. 
 (Ch.) 674; 40 L. J. (Oh.) 452; 18 136), "The Charitable Trusts Act, 
 W. R. 487 ; 19 W. R. 363. 1869 " (32 & 33 Vict. c. 110), 
 
 (4) Cooper v. Gordon, 17 Jnr. 908 ; (5) Sheffield (DuOess of) v. -»«*« »/ 
 20 L.',T. (N. S.) 732 ; L. E. a Eq. 249 ; Buckinghamhire, 1 Atk. 630. 
 
 38 L. J. (Ch.) 489. See further as to 
 
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WILLS, PROBATES, LETTERS OF ADMINISTRATION. 255 
 
 a disputed administration in the Ecclesiastical Court, to protect Pakt II. 
 the property by a receiver^ was not ousted by the power of the "^SEoril!^^ 
 
 latter Court to appoint an administrator pendente lite, and Courts 
 
 of Equity had power to restrain a party, pending a suit in the 
 Ecclesiastical Court to recall letters of administration, from inter- 
 meddling with the personal estate (1) ; yet since the Probate Act 
 of 1857 (20 & 21 Vict. c. 77), ss. 70, 71, the Court of Chancery 
 will not appoint a receiver where the Court of Probate has 
 appointed an administrator pendente lite, that Act having extended 
 the powers of such an administrator appointed by the Court of 
 Probate, and such an administrator has the same power of pro- 
 tecting the property as a receiver appointed by the Court of 
 Chancery (2). The question in such a case is not whether the 
 Conrt of Chancery has now jurisdiction, but whether having juris- 
 diction, it will exercise it by appointing a receiver to do that 
 which the administrator appointed by the Probate Court can do 
 without the intervention of that Court (3). And the Probate 
 Division of the High Court of Justice will now, in a case of 
 danger, restrain a bank from parting with the assets of the 
 testator to the executor, where there is an action for revocation 
 of the probate, and there is no administrator ^ewcZewfe lite (4). 
 
 2. A Court of Equity will stay execution upon an ejectment 
 obtained against the heir, upon a devise of an estate of a lunatic, 
 obtained by a trustee of the lunatic for his own benefit (5). 
 
 3. Although a Court of Equity has no jurisdiction to try the 
 validity of wills, either of real or personal estate (6), yet if the 
 probate of a wiU has been fraudulently obtained, the Court will 
 relieve against the probate (7). And so it will relieve against 
 letters of administration obtained by fraud (8). 
 
 (1) Ball v. Oliver, 2 "V. & B. 96 ; (5) Murley v. Greenham, 9 Jur. 
 et vide Atkinson v. Henshaw, 2 V. & B. 576. 
 
 85 ; Dimes v. Steinberg, 2 Sm. & Griff. (6) Jones v. Frost, Jac. 466 ; 3 
 
 75. Madd. 1 ; et vide Jones v. Jones, 3 
 
 (2) Veret v. Bv/prez, L. R. 6 Eq. Mer. 161 ; 7 Price, 663. 
 
 329. (7) Barnesley v. Powell, 1 Ves. Sen. 
 
 (3) lb. 119, 287; vide Gingell v. Some, 9 
 
 (4) Melhuish v. Milton, 24 W. R. Sim. 539. 
 
 679 (see the Judicature Act, 1875, Ord. (8) Oihson v. Head, 17 W. R. 986. 
 
 52, r. 3). 
 
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256 GAMBLINa, GAMING. 
 
 Pabt n. Sect. 12. Qamhling, Gaming. 
 
 Chapteb III. 
 
 1. A Court of Equity -will decree to be delivered up, securities 
 •wMch have been given by a plaintiff to prevent a threatened 
 prosecution for cheating at cards to obtain the penalties for that 
 offence under the 9 Anne, c. 14, s. 5. If the defendant can recover 
 the penalties at Law, he is at liberty to do so, but he will not be 
 allowed to be an arbitrator in his own cause, and determine the 
 amount of the penalty the plaintiff ought to pay for his the 
 defendant's benefit (1). 
 
 2. Bills of exchange made in France, substituted for English 
 bills of exchange originally given for a gambling debt, will be 
 ordered to be delivered up (2). Equity vrill restrain an innocent 
 hana fide assignee for value of a security given for money won 
 in gaming, from enforcing his claim, even upon a judgment 
 already obtained, and although the defendant at Law has not 
 resisted the suit at Law on that ground (3). But if a judgment 
 creditor, — assignee of a debt for money won at cards, — took the 
 debt under a false representation or concealment of the debtor, 
 as to the consideration, a Court of Equity will not relieve against 
 the judgment (4). 
 
 3. A Court of Equity will not interfere to relieve in respect 
 of a speculative transaction upon the Stock Exchange, where the 
 claim to relief amounts in effect to this, that the plaintiff has 
 been misled, by the trick of some feUow speculators, to enter into 
 a transaction which has not turned out so profitably as he 
 expected. Such a case stands on the same footing as a mere 
 gambling or betting transaction, with which the Court declines 
 to interfere (5). 
 
 (1) Osbaldiston v. Simpson, 13 Sim. (Amr.). 
 
 513. (4) Nelson v. Armstrong, 5 Gratt. 
 
 (2) Wynne v. Callander, 1 Etiss. 354 (Amr.). 
 
 293. (5) Bees r. Fernie, 13 W. R. 6. 
 
 (3) Oough V. PraU, 9 Md. 526 
 
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ARBITRATIONS, AWARDS. 257 
 
 Sect. 13. Arbitrations, Awards. Pabt ii. 
 
 Chaptek III. 
 
 1. There is no original jurisdiction in the Court of Chancery, — 
 
 in the nature of a writ of prohibition, to restrain an arbitrator 
 from proceeding to make an award ; the only jurisdiction that 
 exists to stop the proceedings is founded on the conduct of the 
 parties (1). It has jurisdiction to restrain an arbitrator from 
 proceeding under a reference, on the ground of corruption (2). 
 
 2. An award may be good in Equity, though the authority to 
 make it was revoked before the award was made (3).' 
 
 3. Where a submission does not contain an express agreement 
 enabling the parties to make it a rule of Court, and it has not 
 been made a rule of Court, neither the submission nor the award 
 is brought within all the consequences or provisions of the 9 & 10 
 Will. 3, c. 15, by force of the Common Law Procedure Act, 1854 
 (17 & 18 Vict. c. 125), s. 17, and the jurisdiction of a Court of 
 Equity to set aside the award has not been taken away, but this 
 jurisdiction will not be exercised without great caution ; and, 
 unless gross hardship and injustice would result from a refusal to 
 interfere, the Court will not — unless in a strong case, and parti- 
 cularly if the Court is disposed to the view that the arbitrators 
 had, however irregularly, come to a correct conclusion — assist a 
 party who might have obtained relief by taking proper steps at 
 Common Law, in an action upon an award, by making the sub- 
 mission a rule of Court, but allowed the opportunity for doing so 
 to lapse ; and in such a case, the Court of Chancery will follow the 
 course taken by the Courts of Common Law, and adopt a rule 
 of its own in analogy to the limitations of the statute (4). In 
 such a case the plaintiif must, by his course of conduct, be taken 
 to have elected to defend himself against the award by defending 
 the action, and to abandon all other modes of opposition, and 
 must therefore abide by the result of the action (5). If in pursu- 
 ance of one of the terms of an agreement to refer disputes to 
 arbitration, the submission (not being a submission in a cause 
 
 (1) Pickering v. Cape Town Railw. & W. 505. 
 
 Co., L. E. 1 Bq. 84. (4) Smith v. Whitmore, 1 H, & M. 
 
 (2) Malmesbnry Railw. Co. v. Budd, 576 ; 12 W. R. 244 ; 10 Jur. (N. S.) 
 45 L. J. (Ch.) 271. 1190. 
 
 (3) Harcourt v. Ramsbottom, 3 Jac. (5) lb. 
 
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^58 ARBITRATIONS, AWARDS. 
 
 Paet II. depending either in the Court of .Chancery or in a Court of 
 Sect. 13. Common Law) has been made a rule of a Court of Law, the 
 Court of Chancery has no jurisdiction to relieve against the award. 
 Under the 9 & 10 Will. 3, c. 15, it is intended to give that Court 
 only in which the submission is made a rule, the power of review- 
 irig the award (1). If by consent, an order has been made in 
 Chancery to refer a suit to arbitratfon, no other Court has juris- 
 diction over an award made in pursuance thereof (2). And if an 
 agreement of reference has been made a rule of the Court of 
 Chancery in a cause, that Court has jurisdiction to decide whether 
 the award is bad, and to set it aside (3). And although it is true 
 that the Court leans in favour of awards, and will readily adopt 
 a reasonable construction for the purpose of maintaining their 
 validity, yet it will set aside an award if the arbitrators awarded 
 on a matter not referred to them, and what they awarded without 
 authority cannot be separated from the other parts of the award, 
 or if they declined to arbitrate upon certain matters included in 
 the reference (4). The Court has, under the Common Law Pro- 
 cedure Act (17 & 18 Vict. c. 125), s. 11, a discretion to stay 
 proceedings in a suit, where one of the parties has, under an 
 arbitration clause in the deed, in respect of which the suit was 
 instituted, appointed arbitrators ; but in the exercise of that dis- 
 cretion, it ought not to stay proceedings, on the ground that 
 the notices to refer relate to other matters besides those tlie 
 subject of the suit, and questions arise in the suit, which do not 
 come within the arbitration clause (5). The Common Law Pro- 
 cedure Act, 1854 (17 & 18 Vict. c. 125), s. 11, providing for a 
 stay of proceedings and a reference to arbitration by the Court, 
 where the parties have agreed to refer, is to be construed liberally, 
 so as to give effect to such agreements, except in cases of actual 
 fraud, or where some relief is required to keep matters in statu 
 quo pending the litigation, — as where a receiver is sought ; and 
 it is no reason for refusing the reference that an injunction, of 
 which the object is only to give the plaintiff the benefit of the 
 
 (1) Nichols V. Eoe, 3 My. & K. 431 ; (3) Sowes v. Fernie, 4 My. & Cr. 150. 
 5 Sim. 156 ; Dawson v. Sadler, 1 S. & (4) lb. 
 
 S. 537 ; et vide Feather stone v. Cooper, (5) Wheatley v. Westminster and 
 
 9 Ves. 67. Brymbo Coal Co., 2 Dr. & Sm. 347; 
 
 (2) Pitcher v. Righy, 9 Price,-79. 11 Jiir. fN. S.) 232. 
 
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ARBITEATIONS, AWABDS. 259 
 
 nltimate decision, is prayed ; the parties must be considered to Part ii. 
 have chosen tkeir own tribunal and their own remedy (1), If *^s^™i3^^^' 
 
 an action has been referred at Nisi Prius to a referee or arbi- ~. 
 
 trator, that is only a mode of proceeding at Law; and a Court 
 of Equity has no more jurisdiction over a judgment entered in 
 pursuance of the certificate of the referee, than if the amount 
 h.ad been ascertained by a jury (2). Nor, where in an action 
 there has been a reference by order of the Court to an arbitrator, 
 will a Court of Equity enjoin the enforcing of his award, since the 
 matter is already before another jurisdiction competent to recon- 
 sider the matter and decide all questions (3). 
 
 4. If an award is made after the submission has been reyoked 
 by the plaintiff, Equity will not restrain the defendant from 
 acting on the award, unless the plaintiff had good grounds for 
 revoking the submission (4). A plaintiff is not at liberty to ask 
 the aid of a Court of Equity in respect of an act done by him 
 against good faith ; and if there is nothing whatever to shew that 
 the power which a plaintiff had given to arbitrators was revoked 
 upon any just and reasonable ground, the Court is bound to con- 
 clude that the revocation was a wanton and capricious exercise 
 of authority on his part, and will not interfere on his behalf (5). 
 The power to revoke, without the leave of a Court, a submission 
 to arbitration which does not contain a consent clause for making 
 the submission a rule of Court, is not affected by the Comnion 
 Law Procedure Act, 1854 ; and an agreement to refer matters in 
 difference to an arbitrator is revocable by either party at any time 
 before the award is made (6). And a party who has revoked his 
 submission, as to a matter in dispute, before an award has been 
 made, will not be restrained from bringing his action in respect 
 of the matter ; the agreement to refer not having been made a 
 rule of Court is, by the revocation, at an end (7). 
 
 (1) Willesford v. Watson, 20 W. E. (4) Pope v. Buncannon (Lord), 9 
 32 ; 21 W. E. 350 ; L. E. 14 Bq. 572 ; Sim. 177. 
 
 L. E. 8 Ch. 473 ; 42 L. J. (Oh.) 90, (5) lb. 
 
 447 ; 28 L. T. (N. S.) 428. (6) Thomas v. Anderson, L. E. 9 
 
 (2) ChucJc V. Oremer, 2 Ph. 477. Eq. 523 ; 39 L. J. (Ch.) 468 ; 18 W. E. 
 
 (3) Londonderry and Ennishillen 445 ; 22 L. T. (N. S.) 570. 
 
 Railw. Go. V. Leishman, 12 Beav. (7) Bandall v. Thompson, 24 W. E. 
 
 423. 837. 
 
 S 2 
 
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260 ARBITRATIONS, AWARDS. 
 
 Past ii. 5. Equity will set. aside an award where one of the parties, who 
 
 Sect. 13. tad agreed to the reference of the matters in difference to an 
 
 arbitrator, was not aware of the fact that the arbitrator was 
 
 largely interested in the concern for which the work had been 
 
 done, and in respect of which the differences had arisen (1). 
 
 6. A Court of Equity will restrain the removal of property, 
 the right to which will depend upon the result of an arbitration, 
 pending the arbitration to decide the questions in difference, 
 and before the award is given (2). The award of an arbitrator 
 finding a damage done by a nuisance is to be treated as a 
 verdict establishing a right, so as to entitle the party to an in- 
 junction (3). 
 
 7. The power given to a Court by the 17 & 18 Vict. c. 125 
 (Common Law Procedure Act, 1854), s. 8, to remit matters 
 referred under that Act to the reconsideration of the arbitrator, 
 applies also to matters under the Lands Clauses Act ; so also does 
 the power given by s. 15, to enlarge the time for making the award, 
 even after the proper time has expired (4). When the Court 
 refers a matter back to an umpire who has made an award, for 
 reconsideration, that award is avoided altogether (5). And when 
 an award has been made a rule of Court, it comes within the 
 Common Law Procedure Act, 1854, s. 15 ; and therefore, if it is 
 referred back by the Court for redetermination, and no new award 
 is made within three months, it is stUl in the discretion of the 
 Court, under that Act, to allow or not, an enlargement of the time 
 for redetermination by the arbitrator (6). 
 
 8. Equity will not interfere to restrain Inclosure Commissioners 
 from making an award, though it is disputed whether the lands 
 intended to be inclosed are within their Act of Parliament (7). 
 And it is doubtful whether a Court of Equity can be made sub- 
 sidiary to such a tribunal, created by Parliament for settling the 
 
 (1) Milnor v. Georgia, cfcc, 4 Geo. (4) Dare Valley Bailw. Co. y. Ehys, 
 385 (Amr.). 17 W. R. 550 ; 20 L. T. (N. S.) 717; 
 
 (2) Garrett v. Salishury and Dorset 38 L. J. (Ch.) 417. 
 Junction Sailw. Co., 12 Jur. (N. S.) (5) lb. 
 
 495; L. R. 2 Bq. 358; 14 W. R. (6) lb. 
 
 816. (7) Turner v. Blamire, 1 Drew. 
 
 (3) Imperial Gas Light and Coke 402 ; 22 L. J. (Cb.) 766. 
 Co. V. Broadhent, 7 H. L. C. 600. 
 
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INTEEPLBADER SUITS. 261 
 
 rights of parties, upon the mere ground that that tribunal has jpabt II. 
 
 miscarried in the settlement of those rights (1). Seo™^13 ' 
 
 9. Although there are, undoubtedly, authorities which shew 
 
 that an arbitration clause may oust the jurisdiction of the Court 
 
 of Chancery, yet if there be an express provision to. appoint an 
 arbitrator in a particular manner, and no arbitrator has been 
 appointed, it would be a most unreasonable construction to sup- 
 pose it excludes the jurisdiction of the ordinary Courts of Law 
 and Equity, except in the case in which it substitutes for them 
 the jurisdiction of the arbitrator, for which it provides (2). 
 
 10. If the Legislature has created a statutory obligation between 
 parties to refer matters in difference between them to the decision 
 of an arbitrator, the jurisdiction of the Courts is excluded, and 
 an action will be superseded in respect of a matter which should 
 be settled by such an arbitration (3). 
 
 Sect. 14. Interpleader Suits. 
 
 1. Although it must be now held that a sheriff can, in some 
 cases, file a bill of interpleader, still it is his duty before doing so, 
 to acquaint the judgment creditor with the adverse claim, in order 
 to give him an opportunity, if he should wish it, of withdrawing 
 his own claim before the bill is filed (4), and a claimant under 
 a bill of sale must give the execution creditor an opportunity 
 of examining his claim, before requiring the execution creditor 
 to say if he will accept an issue (5). And in order to obtain 
 an injunction to restrain threatened proceedings at Law, it behoves 
 the sheriff to satisfy the Court that the goods, the subject of the 
 
 (1) Bateman v. Boynton, L. E. 1 (3) Caledonian Eailw. Co. v. Oreen- 
 Ch. 359 ; 12 Jur. 383 ; 35 L. J. (Ch.) ock and WemyssBai) Railw. Co., L. E. 
 18, 568 ; 14 W. E. 119, 598 ; 13 L. T. 2 Sc. App. Cas. 347. 
 
 (N. S.) 487 ; 14 L. T. (N. S.) 371. (4) Tufton v. Harding, 6 Jur. (N. S.) 
 
 (2) Wolverhampton and Walsall 116 ; 29 L. J. (Ch.) 225. 
 
 Railw. Co. V. London and North (5) Smith v. Craig, 16 Jr. Ch. Eep. 
 
 Western Railw. Co., L. E. 16 Eq. App. 5. 
 433, 438. 
 
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262 INTEBPLEADBE SUITS. 
 
 Part ii. seizure, are the goods of the party against whom thfe writ otfi. fu. 
 
 ChAPTEE III. . 1 /-IS 
 
 Sect. 14. ^^^ issued (1). 
 
 2. The owner of lands subject to a charge, is entitled to file 
 a bill against persons setting up conflicting claims to the benefit 
 of the charge, to have their rights declared, and the estate 
 discharged, on payment of the money charged (2). So a party 
 claiming to have a charge upon lands may file a bill to obtain 
 payment of the charge, against the owner of the lands charged, and 
 against other claimants, to restrain those claimants from taking 
 proceedings at Law against the owner of the lands for the re- 
 covery of the money charged. The Court will not allow the 
 owner to be vexed by two proceedings in respect of the same 
 matter (3). 
 
 3. A tenant cannot file a bill of interpleader against his landlord, 
 on notice of ejectment by a stranger under a title adverse to that 
 of the landlord (4). But a. bill of interpleader will lie, where the 
 tenant may be liable to pay the rent to one of two different 
 persons. In the circumstances of that case both the persons 
 claiming the same rent, must claim in privity of tenure and privity 
 of contract ; as in the case of mortgagor and mortgagee, trustee 
 and cestui que trust ; or where the estate is settled to the separate 
 use of a married woman, of which the tenant has notice, and 
 the husband has been in receipt of the rent, and differences arise 
 between them, and she claims the rent. There may be a variety 
 of cases in which the tenant, not disputing the title of the landlord, 
 but affirming that title, the tenure, and the contract by which the 
 rent is payable, but where it is uncertain to whom it is to be paid, 
 may file a bill of interpleader (5). Where there is a mortgage, 
 the tenant is not bound to settle the account between the mort- 
 gagor and mortgagee; if the 'mortgagor will not indemnify the 
 tenant, he has a right to come to a Court of Equity for an 
 indemnity (6). So a tenant may file an interpleader bill against 
 
 (1) Thompson v. Anderson, L. E. (4) Bungey v. Angove, 2 Ves. Jun. 
 9 Eq. 523 ; 39 L. J. (Oh.) 468 ; 18 304, 2nd Ed. ; 3 Bio. C. C. 30 ; et vide 
 W. R. 445 ; 22 L. T. (^f. S.) 570. Smith v. Target, 2 Anstr. 529 ; John- 
 
 (2) Vyvyan v. Vyvyan, 4 De Gr. F. son v. Athinsm, 3 Anst. 798. 
 
 & J. 183. (5) Dungey v. Angove, supra. 
 
 (3) Buncombe v. Oreenacre, 6 Jiir. (6) lb. 
 (N. S.) 987 ; 8 W. E. 657. 
 
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PEEEOGATIVES OP THE CROWN. 263 
 
 his landlord where the question arises on the act of the landlord pabt II. 
 subsequent to the lease (1). ^ S™i ™' 
 
 4. Proceedings in a suit in Equity may be restrained by an 
 
 injunction obtained in another and interpleader suit; as where 
 there are two claimants to a fund, and one files a bill against 
 the stakeholder without making the other a party, the stakeholder 
 may file an interpleader bill, and restrain the proceedings in 
 the former suit (2). If, in a sale by auction, both parties claim 
 the deposit, the auctioneer may file a bill of interpleader and 
 obtain an injunction, upon paying the money into Court (3). 
 
 Sect. 15. Prerogatives of the Crovm. 
 
 1. A Court of Equity will restrain acts in derogation of the 
 prerogative rights of the Crown in the Crown lands (4). A grant 
 made by the Crown to the inhabitants of a parish is good, though 
 it would seem that such grants cannot be made by private in- 
 dividuals, nor supported on the ground of prescription or custom ; 
 and grants by the Crown in derogation of forestal rights are good 
 grants, though they would not be good except in derogation of 
 such rights ; and a bill may be sustained by the poor of a parish 
 to whom such a grant has been made — for instance, to cut wood 
 on waste lands within a royal forest for their own use, and for sale 
 to the other inhabitants of the parish. And a Court of Equity 
 will restrain any interference by enclosing or otherwise, with 
 the exercise of the right (5). 
 
 2. Foreigners in this country, as well as British subjects, are 
 liable to actions for the injury done by their infringing upon 
 the sole and exclusive right granted by the Crown to patentees 
 of inventions, in conformity with the law and constitution of this 
 country ; and the powers of a Court of Equity, which are founded 
 
 (1) Gowtan v. Williams, 9 Ves. 107. (3) Farebrother v. Prattent, 5 Price, 
 
 (2) Prudential Assurance Co. v. 303. 
 
 Thomas, L. E. 3 Ok 74; 37 L. J. (4) Att.-Genv. Mathias, iK. & J. 
 
 (Oh.) 202; 16 W. E. 470; et vide 579; 4 Jur. (N. S.) 628. 
 
 Warrington v. Wheatstone, Jac. (5) Willingale v. Maitland, L. E. 
 
 202. 3 Eq. 103 ; 12 Jur. (N. S.) 932. 
 
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264 PRBEOGATIVES OF THE CROWN. 
 
 Pakt ir. on the insuiBciency of the legal remedy, can be enforced against 
 Sect. 15. them, as well as against British subjects (1). 
 
 3. An interdict to protect the public right can be obtained 
 
 against an individual who, by erecting a wall, encroaches on 
 
 the seashore (2), 
 
 (1) Caldwell v. VanvUssengen, 9 manufacture of goods to be vended 
 
 Hare, 415. See the 15 & 16 Vict. o. 83, withiu or exported from Her Majesty's 
 
 which jjermits the use of patented dominions, with a proviso excepting 
 
 inventions in foreign vessels or for ships of foreign states in whose ports 
 
 their navigation in any port of Her British ships are prevented from usin" 
 
 Majesty's dominions, or in any waters foreign inventions, 
 within the jurisdiction of any of Her (2) Smith v. JEarl of Stair, 2 H. L. 
 
 Majesty's Courts, if not used for the C. 807 ; 13 Jur. 713. 
 
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( 265 ) 
 
 CHAPTEE IV. 
 
 The Docteines and Peinciples as Applicable to Peesons, 
 
 AND EeLATING to PeESONS. 
 
 Sect. 1. Creditors, Debtors — Principal and Swrety — Stakeholder — I'^rt ii. 
 Principal and Agent — Landlord and Tenant. 
 
 1. Equity will not restrain a creditor from prosecuting his legal Creditors, 
 remedy against the personal representatives of his debtor, unless 
 
 there is a decree under which the creditor has a right to go in and 
 prove his debt (1). 
 
 2. A Court of Equity will not interpose in favour of a debtor 
 and strip a creditor of his advantage at Law, unless the debtor or 
 bis representative will discharge the whole of his creditor's 
 demands, equitable as well as legal (2). 
 
 3. If a contract is so framed as to render the personal skill 
 of the assignors in a trust deed for the benefit of their creditors, a 
 material portion thereof, a Court of Equity will not restrain 
 an obstruction of the assignees in the deed, in carrying on the 
 agreement (3). 
 
 4. Where there is a trust deed for payment of creditors, no 
 creditor being a party to the deed, and not having been made by 
 agreement with any creditor, and without any release or other 
 consideration moving from any creditor ; the trust in such a case 
 is voluntary, and a Court of Equity will not enforce it against the 
 author of the trust, and he may vary it as he pleases (4). 
 
 5. The principle is this, that where a person does, without the 
 privity of any one, without receiving consideration, and without 
 notice to any creditor, himself make a disposition as between 
 himself and trustees, for the payment of his debts, he is merely 
 
 (1) Mlicott V. The United States, (N. S.) 166 ; 33 L. J. (Ch.) 727 ; 10 
 Y Gill. 307 (Amr.). L. T. (N. S.) 90. 
 
 (2) Barnewall v. Baniewall, 3 Eidg. (4) Wallwyn v. Coutts, 3 Mer. 707 ; 
 P. C. 75. 3 Sim. 14; lb. 1, n. 
 
 (3) Knight v. Burgess, 10 Jur. 
 
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266 CREDITORS, DEBTORS— PRINCIPAL AND SURETY, STAKEHOLDER, ETC. 
 Part II. directing the mode in which his own property shall be applied for 
 
 Ohatter T"V 
 
 Sect. 1. his own benefit, and the general creditors, or the creditors named 
 ■ in the schedule, are merely persons named there for the purpose 
 
 of shewing how the trust property under the voluntary deed shall 
 be^applied for the benefit of the volunteers (1). But on the other 
 hand, it is the established law of a Court of Equity, that where 
 there is an actual settlement made for vesting an estate in trustees, 
 or for vesting stock in trustees for volunteers, there, the legal 
 character being complete, the persons who have the legal character 
 are trustees for the volunteers, who may claim as cestms que trvd 
 against the trustees under the deed (2). So a conveyance by 
 a debtor to trustees for payment of scheduled creditors, who do 
 not execute the deed or conform to its terms, cannot be enforced 
 by the creditors (3). 
 
 6. A Court of Equity will set aside a bargain by which a 
 creditor who, in consideration of his being a surety for the payment 
 to the other creditors of a composition, agrees with the debtor, but 
 without the knowledge of the other creditors, for the payment of 
 his own debts in full (4). In such cases the Court proceeds upon 
 grounds of public policy, and the relief is given on account, not of 
 the individual, but of the public ; and therefore a bond to secm-e 
 one creditor, the deficiency of a composition, not communicated to 
 the other creditors, will be decreed to be delivered up, though to 
 the particejas criminis (5). 
 
 7. A debtor, under terms to pay the debt by instalments, with 
 a proviso enabling the creditor to sue for the whole sum on failure 
 in punctual payment of any instalment, is justified in paying the 
 creditor, although the creditor may have assigned the debt; if 
 the creditor disputes the validity of his assignment, and gives 
 notice thereof to the debtor, such payment may be continued 
 until the assignee of the debt has obtained an injunction to restrain 
 the debtor from paying the creditor (6). 
 
 (1) Garrard v. Lwd Lauderdale, 139; 35 L. J. (Ch.) 276; 11 Jw. 
 3 Sim. 1. (N. S.) 905 ; 14 W. E. 47; 13 L. T. 
 
 (2) lb. (N. S.) 318. 
 
 (3) lb. ; vide Ellison v. Ellison, 6 (5) Jachman v. Mitchell, 13 Ves. 
 Ves. 656; Pulvertoft v. Pulvertoft, 581. 
 
 18 Ves. 84. (6) Aplin v. Gates, 30 L. J. (Ch.) 6; 
 
 (4) Wood V. Barker, L. R. 1 Eq. 9 W. R. 92. 
 
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CREDITORS, DEBTOES— PRINCIPAL AND SURETY, STAKEHOLDER, ETC. 267 
 
 8. If the effect of an agreement by a debtor to hypothecate Part II. 
 goods is a forbearance on the part of the creditor, the creditor s^^_ i_ 
 
 is entitled to a declaration that there is a lien on the goods 
 and proceeds, for the debt, and to an injunction to restrain dealing 
 with the goods (1). 
 
 9. If a question of appropriation and apportionment of payments 
 can be raised by way of defence to an action, and dealt with at 
 Common Law, a Court of Equity will not interfere and restrain 
 the action (2). 
 
 10. The doctrines relating to principal and surety are the same Principal and 
 at Law and in Equity (3). If the defence to an action at Law on 
 
 an instrument — as a bond — against a surety is equally open at 
 Law by way of plea, a Court of Equity will not restrain the 
 action (4), nor will it restrain execution on a judgment at Law 
 against a surety, where the surety, as plaintiff in Equity, has 
 already raised the same case at Law (5). 
 
 11. A surety who has executed a bond on the faith of its being 
 executed by the principal debtor also, cannot be released from his 
 obligation on the ground that the principal has never executed it, 
 if the principal has executed an instrument on which the surety 
 may sue him and become his specialty creditor (6). 
 
 12. The authorities, which are almost innumerable, have settled 
 that upon any giving of time to a principal debtor, if there be any 
 reseryation of rights against the surety, the surety is not dis- 
 charged; for when the right is reserved, the principal debtor 
 cannot say, /it is inconsistent with giving him time that the 
 creditor should be at liberty to proceed against the sureties, and 
 that they should turn round upon the principal debtor, notwith- 
 standing the time so given him ; for he was a party to the agree- 
 ment by which that right was reserved to the creditor, and 
 the question whether or not the surety was informed of the 
 arrangement is wholly immaterial (7). But a release stands upon 
 
 (1) Alliance Bank v. Brocm, 13 bourne, IT W. R. 428 ; 20 L. T. (N. S.) 
 W. E. 127. 339. 
 
 (2) Aberystwith and Welsh Coast (5) Cooper v. Evans, L. R. 4 Eq. 
 Bailw. V. Piercy, 12 W. R. 1000. 45 ; 15 W. B. 609. 
 
 (3) Coojier v. Evans, L. R. 4 Eq. (6) lb. 
 
 45 ; 15 W. E. 609. (7) Webb v. Hewitt, 4 K. & J. 438. 
 
 (4) Stiff V. Local Board of East- 
 
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268 CREDITORS, DEBTORS— PRINCIPAL AND SURETY, STAKEHOLDER, ETC. 
 
 Pabt II. an entirely different footing:, for when an actual release is given 
 
 Chapter IV . . i . ° > 
 
 Sect. 1. DO right can he reserved, inasmuch as the debt is gone at Law (1). 
 
 13. But though an agreement may not amount to a disciarge 
 at Law, yet it may amount to a discharge in Equity, and that will 
 of course release the surety (2). As for instance, if there is 
 an agreement between a bond debtor and his creditor that the 
 latter shall take all the debtor's property, and shall pay his other 
 creditors a certain sum in the pound, this, though not a discharge 
 of the bond at Law by way of accord and satisfaction, because not 
 under seal, still operates in Equity as a satisfaction of the debt, 
 and it is not possible in Equity, upon such a transaction, to reserve 
 any rights against the surety, and any attempt to do so would be 
 void as being inconsistent with the agreement, and a nuUity; 
 for if a man, in consideration of the debt due from his principal 
 debtor, agree to buy the whole of his debtor's property, he has 
 been paid, and if he has been paid he cannot reserve his rights, 
 and a Court of Equity will, in such a case, restrain any action by 
 the creditor against the surety (3). 
 
 14. If a creditor fraudulently assist the principal debtor to 
 remove from the country, with the intent to hinder and delay the 
 surety in his remedy against the principal, Equity will enjoin the 
 creditor from enforcing his claim against the surety (4). 
 
 15. Equity will enjoin a judgment suffered by a surety, on a 
 promise by the creditor that it should only be used to enforce 
 a settlement with the principal, and will relieve the surety if the 
 judgment is too large (5). So Equity will enjoin an action against 
 a surety, where it requires that the debt should be first satisfied 
 from securities of the principal debtor, held by the creditor as 
 a primary fund, especially if there is a doubt as to their validity; 
 Equity holds that this question should be first settled in an action, 
 and at the expense of the creditor (6). A judgmeflt against 
 a surety, upon a note, will not be enjoined on the ground that the 
 note was procured through misrepresentation as to its purpose by 
 
 (1) Webh V. Hewitt, 4 K. & J. 438 ; (4) Smith v. Hays, 1 Jones, Eq. 
 et vide Nicholson v. Eevill, 4 Ad. & E. 321 (Amr.). 
 
 675 ; Eearsltyv. Cole, 16 M. & W. 182. (5) Cage v. Cassidy, 23 How. 109; 
 
 (2) Webb V. Hewitt, supra. et vide Dew v. Hamilton, 23 Geo. iU 
 
 (3) lb. (Amr.). 
 
 (6) Hays v. Ward, 4 John. Ch. 134 (Amv.). 
 
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CREDITORS, DEBTORS- PEINCIPAL AND SURETY, STAKEHOLDER, ETC. 269 
 
 the principal, unless the payee were also guilty of such mis- Part li. 
 
 ... ,, , Chapter IV. 
 
 representation (1). Sect. i. 
 
 16. A stakeholder who seeks to retain part of the stake, is stakeholder 
 not an indifferent stakeholder, but has a personal question to 
 maintain, and he therefore cannot obtain an injunction to restrain 
 
 any action against himself, upon the principle of an interpleader 
 bill. Such a bill can only be sustained where the plaintiff holds a 
 stake which is equally contested by the defendants, and as to 
 which the plaintiff is wholly indifferent between the parties, and 
 the right to which will be fully settled by the interpleader between 
 the defendants (2). 
 
 17. The duties of an agent are in the nature of personal service, Prinoipal and 
 and as such are incapable of being enforced in Equity (3). But ^^^^ 
 
 a Court of Equity will restrain a party who has been appointed as 
 an agent for certain purposes, from acting in a manner inconsistent 
 with the rights and duties of his principals acting as trustees (4). 
 
 18. Equity will enjoin an agent for the purpose of obtaining the 
 payment of a note by an action in the name of the payee, from 
 appropriating the proceeds of the judgment to his own use, until 
 the matters shall have been heard and adjudicated (5). 
 
 19. If an agent or bailiff confounds his principal's property with 
 his own, or where a man who has undertaken to keep the property 
 of another distinct mixes it with his own, the whole must, both at 
 Law and in Equity, be taken to be the property of the principal 
 or other party, until the agent puts the subject under such circum- 
 stances that it may be distinguished as satisfactorily as it might 
 have been before the unauthorized mixture, and the agent is 
 chargeable with the whole, except what he can prove to be 
 his own (6). And if a defendant, in violation of the terms into 
 which he entered with the Court, upon obtaining the dissolution 
 of an injunction, intermix his own property with the plaintiff's, he 
 will be chargeable in account on this principle (7). 
 
 20. A Court of Equity wiU restrain a tenant from pulling down Landlord and 
 
 tenant. 
 
 (1) Griffith v. Reynolds, 4 Gratt. 46 (4) Spurgin v. White, 9 W. E. 266 ; 
 (Amr.). 7 Jur. (N. S.) 15. 
 
 (2) Mitchell V. Eayne, 2 S. & S. 63. (5) Dunn v. Dunn, 8 Ala. 784 
 
 (3) Mair v. Eimalayan Tea Go., (Amr.). 
 
 L. E. 1 Eq. 411 ; 11 Jur. (N. S.) 1013 ; (6) Luptm v. White, 15 Ves. 432. 
 
 14 W. E. 165. (7) lb. ' 
 
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270 CRED^rOES, DEBTOES— PRINCIPAL AND SUEETY, STAKEHOLDER, ETC. 
 
 Part II. a house and building: another which his landlord dislikes. Tt 
 Ohapteb IV . 
 Sect. 1. is not sufficient to shew that the house proposed to be built is 
 
 a better one, or that the landlord does not know his own interest. 
 
 The landlord has a right to exercise his own judgment and caprice 
 
 whether there shall be any change (1). 
 
 21. A tenant has no equity either to compel his landlord to 
 spend money received by him from an insurance office on an 
 insurance by himself against fire, on the demised premises being 
 burned down, in rebuilding the premises j or to restrain the 
 landlord from suing for the rent until the premises are rebuilt (2). 
 
 22. A landlord and his bailiff against whom damages have been 
 recovered for an irregularity in a distress, can sustain a bill to 
 have the damages and costs recovered by the tenant, set off 
 pro tanto against the arrear of rent due td the landlord, and 
 to restrain execution in the meantime (3). 
 
 23. If a stranger begins to build on land supposing it to be 
 his own, and the real owner, pei'ceiving his mistake, abstains from . 
 setting him right, and leaves him to persevere in his error, a Court 
 of Equity will not afterwards allow the real owner to assert his 
 title to the land on which the stranger has expended money on 
 the supposition that it was his own ; Equity considers that when 
 the real owner saw the mistake into which the stranger had fallen, 
 it was the duty of the owner to be active to state his adverse title, 
 and that it would be dishonest on the part of the owner to remain 
 wilfully passive on such an occasion, in order afterwards to profit 
 by the mistake which he might have prevented (4). But if a 
 stranger builds on land, knowing it to be the property of another, 
 there is no principle of Equity which would prevent the real owner 
 from claiming the land with the benefit of all the expenditure 
 made upon it; there would be nothing in the owner's conduct, 
 active or passive, making it inequitable in him to assert his 
 legal rights (5). So if a tenant builds on his landlord's land, 
 he does not, in the absence of special circumstances, acquire 
 
 (1) Smyth V. Carter, 18 Beav. 78. Sch. & Lef. 403, n. ; Maw v. TJlyait, 
 
 (2) Leeds v. Cheetham, 1 Sim. 31 L. J. (Ch.) 83. 
 
 146. (4) Mamsden v. Dyson and Thorn- 
 
 (3) Eamp v. Jones, 9 L. J. (N. S.) ton, L. R. 1 H. L. 129. 
 Ch. 258; vide Beasley v. D'Arcy, 2 (5) lb. 
 
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HUSBAND AND WIPE, WIDOW— PARENT AND CHILD, ETC. 271 
 
 any right to prevent the landlord from taking possession of the Part li. 
 land and buildings when the tenancy has determined ; he knew seo™i^^" 
 
 the extent of his interest, and it was his folly to expend money 
 
 upon a title which he knew would or might soon come to an 
 end (1). But if a tenant, being a mere tenant at wiU, builds 
 on the land in the belief that he thereby acquires a title after- 
 wards to claim a lease of the land, and the landlord allows him so 
 to build, knowing that he is acting in that belief, and does 
 not interfere to correct the error, it would seem that the tenant 
 would probably be entitled to relief (2). And if a man, under 
 a verbal agreement with a landlord for a certain interest in land, 
 or under an expectation created or encouraged by the landlord 
 that he shall have a certain interest, takes possession of such land 
 with the consent of the landlord, and upon the faith of such 
 promise or expectation, with the knowledge of the landlord, and 
 without objection by him, lays out money upon the land, a Court 
 of Equity will compel the landlord to give effect to such promise 
 or expectation (3). 
 
 Sect. 2. Husband and Wife, Widow — Parent and Child, Infants. 
 
 1. If the Divorce Court has dissolved a marriage and ordered Husband and 
 permanent alimony, and the late husband is dissipating his ' 
 property, or putting it out of his power, a Court of Equity will 
 
 grant an injunction and a receiver to protect it for the benefit of 
 the former wife (4). 
 
 2. If the claimants of a husband's interest in his wife's property 
 cannot effect a division without the aid of a Court of Equity, a 
 sale of the property will be enjoined till she is suitably provided 
 for (5). So Equity will restrain a husband from proceeding at 
 Law to obtain possession of a legacy which comes to his wife by 
 will, or of her share as next of kin, without providing for her 
 support, unless she is residing apart from him without his consent 
 and without sufficient cause (6). 
 
 (1) Eamsden v. Dyson and Tliornton, (4) Sidney v. Sidney, 17 L. T. 
 L. B. 1 H. L. 129. (N. S.) 9. 
 
 (2) lb. (5) Corley v. Corley, 22 Geo. 178 
 
 (3) lb. (Amr.). 
 
 (6) Fry v. Fry, 7 Paige, 461 (Amr.). 
 
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272 HUSBAND AND WIFE; WIDOW— PARENT AND CHILD, ETC. 
 
 Part il 3. ^ creditor of a married woman cannot, before the hearing of 
 
 Ohapteb IV. . . _ '"g ui 
 
 Sect. 2. an action to make her separate property liable for the debt, obtain 
 an interim injunction to restrain her from alienating her separate 
 property, for neither the special nor general engagements of a 
 married woman have any farther effect against her separate 
 property, than to give the creditor a right to be paid out of it by 
 obtaining execution, no charge is created upon the property (1). 
 
 4. A Court of Equity will protect the property of the wife from 
 the husband where he has procured the marriage with a minor to 
 be solemnized by a licence, contrary to the provisions of the 
 Marriage Act of 1823, 4 Geo. 4, c. 76, by which he has incurred a 
 forfeiture of all her property accruing to him by force of the 
 marriage (2). But a conveyance by a woman after a marriage 
 engagement, and upon the eve of marriage, is a fraud upon the 
 rights of the intended husband, and will not be upheld, unless it 
 appears clearly that he had knowledge of the transaction, and 
 assented to it (3). 
 
 5. Equity will not permit a husband who has made a post-nuptial 
 settlement in favour of a wife and children, against whom a 
 decree for divorce has been obtained by the wife, to sell or 
 incumber the settled property pending an inquiry as to the 
 provision which ought to be made for the wife; the property 
 comprised in the settlement will be kept in statu quo pending that 
 inquiry (4). 
 
 6. The acquiescence by a widow in an award and an allotment 
 of lands and mines of which the husband was seised in right of 
 his wife, made during her husband's life with his concurrence, will 
 bind the widow in Equity, and the Court will restrain her from 
 violating their terms (5). 
 
 7. A Court of Equity will not permit personal chattels be- 
 queathed to a single woman for her separate use, but without the 
 intervention of any trustee, to be seized inexecutionby a judgment 
 creditor of an after-taken husband (6). And so of real estate (7). 
 
 (1) National Provincial Bank of (4) Watts v. Watts, 24 W. E. 623. 
 England v. Thomas, 24 W. E. 1013. (5) Maden v. Veevers, 5 Beav. 503. 
 
 (2) Att-Oen. v. Clements, L. R. 12 (6) Newlands v. Paynter, 4 My. & 
 Eq. 32. Cr. 408. 
 
 (3) Johnson v. Peterson, 6 Jones, (7) Smith v. Bank, &c., 4 Jones, 
 Eq. 12 (Ami-.). Eq. 303 (Ami-.). 
 
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HUSBAND ANT> WIPE, WIDOW -PARENT AND CHILD, ETC. 273 
 
 With the assent of the husband, the labour of his wife and minor p^u^ II. 
 children may be applied to her separate estate, and a Court of Chapteb iv. 
 
 Equity will restrain a creditor of the husband from interfering 
 
 with such property (1). 
 
 8. Although it has been questioned whether, as a rule of Equity, 
 a Court of Equity can enforce by injunction a stipulation to live 
 
 • separate, or not to bring a suit for restitution of conjugal 
 rights (2) ; yet it is now decided that such a Court will restrain 
 proceeding with a suit in the Divorce Court for restitution of 
 conjugal rights, in violation of a covenant not to compel cohabi- 
 tation by any legal proceedings, such a covenant being no defence 
 in the Divorce Court to such a suit (3). But if the contract in a 
 separation deed can be set up as a defence by the wife in the 
 Divorce Court, in a suit by the husband for obtaining a divorce, 
 and if the husband in the suit in the Divorce Court allege that the 
 contract was executed in ignorance of the fact that the wife had 
 committed adultery, and on her assertion of innocence, a Court of 
 Equity will not interfere to stay proceedings in the Divorce 
 Court (4). 
 
 9. A Court of Equity can enforce specific performance of an 
 agreement by which a person has bound himself to execute a 
 deed, although such a deed may be a deed of separation between 
 himself and his wife (5) ; and although it is perfectly true that a 
 Court of Equity does not interfere with any question respecting 
 the restitution of conjugal rights, and leaves such questions 
 entirely to the Court of Probate, as having jurisdiction in such' 
 matters, yet a Court of Equity deals with covenants which parties 
 enter into, and if a party chooses to enter into a covenant 
 restraining himself from proceeding in a matter in respect of 
 which a Court of Equity may not have jurisdiction, yet having 
 jurisdiction in matters of contract, the Court will restrain him 
 from violating his covenant (6) ; and can carry into effect executory 
 
 (1) Johnson v. Vail, 1 M'Cart. 423 (4) Brown v. Brown, L. E. 7 Bq. 
 (Amr.). 185; 38 L. J. (Ch.) 153; 19 L. T. 
 
 (2) Wilson V. Wilson, 5 H. L. 0. (N. S.) 594 ; 17 W. E. 98. 
 
 40; 23 L. J. (Ch.) 697. (5) Wilson v. Wilson, 5 H. L. C. 
 
 (3) Sunt V. Euni, 31 Beav. 89; 40; 23 L. J. (Ch.) 697. 
 
 8 Jur. (N. S.) 85 ; 31 L. J. (Ch.) 161 ; (6) Saunders v. Eodway, 16 Beav. 
 10 W. R. 215 ; 5 L. T. (N. S.) 778. 207 ; 16 Jur. 1005. 
 
 T 
 
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274 HUSBAND AND WIFE, WIDOW— PARENT AND CHILD, ETC. 
 
 Part II. contracts of that descriptioii (1). And a covenant by the husband 
 Sect. 2. not to sue for the restitution of conjugal rights is a usual covenant, 
 and therefore an integral valid portion of a deed of separation, 
 and in carrying into effect such executory contracts, there is a 
 right to insist upon having such a covenant inserted (2); and 
 although a Court of Equity will not carry into execution articles 
 of separation between husband and wife, yet engagements entered' 
 into between the husband and a third party are valid and binding, 
 although they originate out of, and relate to, an unauthorized 
 state of separation, in which the husband and wife have endea- 
 voured to place, themselves (3) ; and it is no objection to a deed 
 of separation that the trust is voluntary, as for instance, for want of 
 a covenant on the part of the trustee to indemnify the husband (4). 
 But a voluntary deed founded on an agreement by which a husband 
 makes a provision for his wife in case of a future separation, is 
 radically defective and altogether void at Law, so far as it is an 
 agreement between husband and wife, and will be set aside (5). 
 
 10. A Court of Equity will not exercise its jurisdiction over 
 alimony as such, either to compel or to restrain its payment, 
 except so far as to grant a writ of we exeat against the husband (6). 
 But in a suit in Chancery to restrain the prosecution by the wife, of 
 a suit for judicial separation, and from proceeding in the Divorce 
 Court for alimony, where a separation deed has provided for 
 alimony, the Court, though it may not, upon an interlocutory 
 application, restrain the proceedings for judicial separation, and 
 proceeding for alimony pendente lite, will put the wife upon an 
 undertaking to deal with any order the Divorce Court might make 
 as to alimony, as the Court of Equity should direct (7). But the 
 Court can in such a case restrain the prosecution of a petition for 
 alimony pendente lite (8). 
 
 (1) Sunt V. Sunt, 31 Beav. 89 ; (5) Procter v. Eohinson, 15 W. K, 
 8 Jur. (N. S.) 85 ; 31 L. J. (Ch.) 161 ; 138 ; 35 Beav. 329 ; 14 W. R. 381. 
 10 W. E. 215 ; 5 L. T. (N. S.) 778 ; (6) Vandergucht v. Be Blaquiere, 
 W«7soK V. Wilson, 5 H. L. 0. 40 ; 23 5 My. & Or. 229 ; 8 Sim. 315. 
 
 L. J. (Ch.) 697. (7) Williams v. Baily, L. R. 2 Eq. 
 
 (2) lb. 731. 
 
 (3) Worrdll v. Jacob, 2 Mer. 269. (8) Flower v. Flower, 20 W. E. 
 
 (4) Frampfon v. Frampton, 4 Beav. 231 ; 25 L. T. (N. S.) 902. 
 
 287. 
 
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HUSBAND AND WIFE, WIDOW— PARENT AND CHILD, ETC. 275 
 
 11. An agreement between husband and wife which is contrary Paet II. 
 to the law and policy of this country, cannot be enforced here, Sect. 2. 
 though it may be a good contract by the law of the country 
 in which the agreement was made. If a contract be in breach, 
 fraud, or evasion of the law of this country, or contrary to its 
 policy, the Courts of this country cannot enforce it ; therefore, 
 an agreement containing a provision that one of the children of 
 the marriage should remain under the care of the mother, and 
 that the wife would facilitate the obtaining of a divorce, in a suit 
 instituted by the husband for that purpose, in England, is, as to 
 the first provision, in contravention of the settled law and policy 
 of this country ; that law giving to the father the custody of the 
 children, and the control over them, not for his own gratification, 
 but on account of his duties, and with reference to the public wel- 
 fare (1) ; and is, as to the second provision, contrary, and nothing 
 more so, to the policy of, and repugnant to our law, both as to 
 the object which it has in view, and the means by which that 
 object is to be effected (2). But although a father cannot by 
 agreement deprive himself of the control of his children, an 
 agreement that the holidays of the children from school shall 
 be passed where trustees shall direct, is reasonable, and will be en- 
 forced by the Court, where the father retains the control of the 
 children's education, and there is nothing that amounts to an 
 abnegation of parental power, in respect of which, the law of 
 England regards a father as a person who has duties which he 
 cannot renounce — the duties of caring for, and seeing to the due 
 education of his children (3). And if an agreement is so objec- 
 tionable that a Court of Equity will not perform it, it cannot be 
 rendered capable of performance by the objectionable parts having 
 already been carried into execution (4). But though one 
 covenant iu a separation deed be bad, that does not make the 
 
 (1) The 36 Vict. c. 12, s. 2, enacts that it will not be for the benefit of the 
 
 that no agreement in a separation deed infants. 
 
 between the father and mother shall (2) Fope v. Hope, 8 De G. M. & G. 
 
 be held invalid by reason of its provid- 731, 743. 
 
 ing that the, father shall give up the (3) Hamilton v. Hector, L. R. 6 Ch. 
 
 custody or control of infants to the 701; 40 L. J. (Ch.) 692 ; 19 W. R. 990. 
 
 mother, but such an agreement is not (4) Hope v. Hope, 8 De G. M. & G. 
 
 to be enforced if the Court is of opinion 731, 743. 
 
 T 2 
 
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276 
 
 HUSBAND AND WIFE, WIDOW— PARENT AND CHILD, ETC. 
 
 Part II. 
 
 Chapter IV. 
 
 Sect. 2. 
 
 Parent and 
 child, Infants. 
 
 whole deed bad ; there may be deeds the substance of which may 
 be carried into effect, but part of which may be either inoperative 
 or wholly void (1). 
 
 12. A Court of Equity will restrain proceedings at Law upon 
 instruments obtained upon an agreement that a woman should 
 marry such a man, since it is contrary to the nature and design 
 of marriage, which ought to proceed from a free choice, and not 
 from any compulsion (2). 
 
 13. A contract entered into and paid for by a wife, without the 
 knowledge, but for the benefit of her husband, is valid and 
 binding when ratified by the husband, and a Court of Equity will 
 restrain an action of ejectment brought to recover land which has 
 been the subject of such a transaction, from the husband (3). A 
 purchase of goods by a married woman from her husband, througli 
 the medium of trustees, for her separate use and appointmentj 
 may be sustained against his creditors, and a Court of Equity will 
 restrain the disposition of the goods purchased, taken in execution 
 under judgments obtained against the husband by his creditors, if 
 the purchase by the wife is hona fide ; it is of no consequence 
 whether it is before or after the marriage, though the husband is 
 indebted at the time, and even though the object is to preserve 
 from his creditors, for the family, the subject of the purchase. 
 The circumstances of the comparative value of the considerationy 
 the continued possession (according to the title by the relation of 
 the parties), the degree of notoriety, the want of an inventory, the 
 satisfaction of some debts out of the property, &c., though circum- 
 stances of evidence, are not conclusive as to the nature of the 
 transaction (4). 
 
 14. A contract by which a father deprives himself of all his 
 parental control over his child, is contrary to the policy of the 
 Law, and void (5). That rule of Law is grounded on this, that 
 such a contract is opposed to the welfare of the child, but such a 
 contract is valid, and not void on the ground of public policy, if 
 the conduct of the father towards his child is so gross that a 
 
 (1) Hamilton v. Hector, L. R. 13 Eq. (4) Arundell {Lady) v. PUffh 
 511, 522. Arundell {Lady) v. Taunton, 10 Ves. 
 
 (2) Key v. Bradshaw, 2 Vern. 102, 139. 
 
 2nd Ed. (5) See note (1), p. 275. 
 
 (3) Millard v. Hervey, 3i Beav. 237. 
 
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HUSBAND AND WIFE, WIDOW— PAEENT AND CHILD, ETC. 277 
 
 Court of Equity would remove the child from his custody as being Pakt it. 
 injurious to, and opposed to the welfare of the child, and the sbot. 2. 
 performance of the contract will be enforced by injunction (1). 
 The power of a Court of Equity to control the rights of a father 
 over his children where he has grossly misconducted himself is 
 indubitable (2); and under circumstances of improper conduct, 
 the Court will restrain a father from interfering with the manage- 
 ment and education of his son, a ward of the Court (3). In 
 England a man who holds that prayer, as entreaty and supplica- 
 tion to the Almighty, is no part of duty, is superfluous, and that 
 no day ought to be observed as the Sabbath, is to be deemed as 
 entertaining opinions noxious to society, adverse to civilization, 
 opposed to the usages of Christendom, contrary (as to prayer), to 
 the express commands of the New Testament, and is disqualified 
 for having the guardianship of an English child, although his own, 
 and he will be restrained by a Court of Equity from interfering 
 with the child (4). But if the father wisli his child to be under 
 the guidance, care, and instruction under which he has placed it, 
 a Court of Equity has no right to have an opinion — provided the 
 father's conduct is free from impropriety or bad motive — as to 
 whether the father is judicious or not in the particular training he 
 may direct the child to undergo, and would not interfere with the 
 father's decision in applications by mothers under the 2 & 3 Vict. 
 e. 54, for obtaining access to and custody of children under the 
 age of seven years (5). If the Court thinks it is for the benefit of 
 the ward it will restrain a father from taking his child out of the 
 kingdom (6). 
 
 15. The general doctrine of the Court of Chancery is, that 
 the children should be brought up in the religion of their 
 
 (1) Swift T. Swift, 4 De G. J. & S. c. 54, is repealed by tlie 36 Vict. c. 12, 
 710, 714; 34 Beav. 266 ; 34 L. J. (Ch.) which gives to the Court of Chanoeiy 
 209, 394 ; 11 Jur. (N. S.) 458, 1148. power to order that a mother nwy have 
 
 (2) lb. access to infants until they are sixteen 
 
 (3) Oreuze v. Hunter, 2 Cox, 242 ; years of age, and to order them to be 
 et vide Ike parte Warner, 4 Bro. C. C. given into her custody until that age, 
 101. subject to siich access by the father as 
 , (4) Thomas v. Roberts, 19 L. J. the Court shall deem proper. 
 
 (N. S.) Ch. 506. (H) De Miinneville v. De Manneville, 
 
 (5) Wimcom, In re, 11 Jur. (N. S.) 10 Ves. 52, 56. 
 297 : 13 W. R. 452. The 2 & 8 Vict. 
 
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278 HUSBAND AND WIFE, WIDOW— PARENT AND CHILD, ETC. 
 
 Paet II. father (1). But tlie Court will have regard to the fender age and 
 
 Sect. 2. liealth of an infant, and will allow it to remain under the care of 
 
 its mother and guardians — though the mother is of a different 
 
 religion to the deceased father — until the infant is seven years of 
 
 age (2). 
 
 16. Though the Court of Chancery has juiisdiction to restrain a 
 father from interfering with the religious education of his infant 
 ohild, that jurisdiction will not be exercised unless the Court sees 
 that the interference of the father v\ ill be injurious to the happiness 
 and welfare of the child (3). 
 
 17. An agreement made before marriage between intended 
 husband and wife of different religions that the boys shall be 
 educated in the religion of the father and the girls in that of the 
 mother, is not binding as a legal contract, nor can it be enforced 
 in Equity (4). But if a father has forfeited or abandoned his 
 right to elncate his children in his own religiou, the Court will 
 consider only the happiness and benefit of the child, and will 
 order it to remain in the care of those by whom it has been 
 brought up, and to be educated in their religion, although the 
 child may not have so far imbibed the particular doctrines of 
 that religion as to render it dangerous to change its religious 
 training (5). 
 
 18. A Court of Equity will restrain all communication with an 
 infant ward of Court by a party attempting to contract a marriage 
 with the ward, if the Court is of opinion that there is a disparity 
 in the ages of the parties (6) ; or that the marriage would be an 
 improper one (7). And if a marriage has been contracted with a 
 ward without the consent of the Court, it will, if it thinks that 
 the marriage is a disparagement of the ward, restrain all inter- 
 cotirse between the ward and her husband, and if it thinks proper 
 will keep the husband in custody until a proper settlement has 
 been made (8). 
 
 (1) Newlury, In re, L. R. 1 Eq. 622, 636; 21 W. E. 431, 616; 28 
 431 ; L. R. 1 Ch. 263, 266. L. T. (N. S.) 686. 
 
 (2) Austin V. Austin, 34 Beav. 257 (5) lb. 
 
 (see note (5), p. 277). (6) Pearce v. GrutdlfleU.Xi.'^es.m. 
 
 (3) Meade, In re, 5 Jr. R. Eq. 98 ; (7) Dawson v. Thompson, 12 L. T. 
 19 W. R. 313. (N. S.) 178. 
 
 (4) Andrews v. Salt, L. R. 8 Ch. (8) Bathiirst v.Murray,8'Ves.'ii. 
 
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AUTHOBS, PUBLISHERS- AOTOBS. 219 
 
 19. Au infant is entitled to treat a person who enters on his PaetII. 
 estate during his infancy as his bailiff, who is accountable as seot. 2. 
 such (1). And the Court will, upon the infant attaining twenty- 
 one, assist him in bringing an action of ejectment against such a 
 person, by restraining the setting up of any outstanding legal 
 estate (2). 
 
 Sect. 3. Authors, Publishers — Actors. 
 
 1. A Court of Equity will restrain the violation of agreements Authors, Pub- 
 between authors and publishers, for instance, agreements with 
 
 respect to the right to the exclusive services of an author for a 
 periodical, and will enjoin their determination before the agreed 
 period, and also enjoin the engaging in any other work contrary to 
 a stipulation in such agreements (3). So such a Court will construe 
 and carry into effect agreements between authors and publishers 
 for the publication of works upon specific terms as to the expense 
 and division of the profits (4). 
 
 2. The right and property which an author or composer of any 
 work, whether of literature, art, or science, has in such work 
 unpublished, and kept for his private use and pleasure, entitles 
 the author or composer to withhold the same altogether, or so far 
 as he may pleaise, from the knowledge of others ; and a Court of 
 Equity will restrain an invasion of this right by the publication 
 of a catalogue containing a description of such work. So the 
 Court will interfere to prevent a party from availing himself of a 
 possession of etchings or impressions of a work, where the pos- 
 session originates in a breach of trust, confidence, or contract ; 
 in such cases a Court of Equity exercises an original and inde- 
 pendent jurisdiction to prevent a wrong arising from a violation of 
 right, or breach of contract or confidence (5). 
 
 3. The author of a separate article in a periodical, has, under 
 the 5 (& 6 Vict. c. 45, s. 18, the right to prevent a separate pub- 
 
 (1) Blomfield v. Eyre, 8 Beav. 250. 271 ; 4 K. & J. 656 ; 4 Jur. (N. S.) 
 
 (2) lb. 82 ; 27 L. J. (Cb.) 254. 
 
 (3) Stiff V. Cassdi, 2 Jur. (N. S.) (5) Prince Albert v. Strange, 2 De 
 348. G. & Sm. 652 ; 1 Mao. & G. 25 ; 1 H. 
 
 (4) Seade v. Bentley, 3 K. & J. & T. 1. 
 
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280 
 
 AUTHOES, PUBLISHERS— ACTORS. 
 
 Pakt I. 
 
 Chapter IV. 
 
 Sect. 3. 
 
 Actors. 
 
 lication, and a Court of Equity will restrain the Tiolation of the 
 rigiit, and it is not necessary to enter the work at Stationers' 
 Hall (1). 
 
 4. A party who is one of the proprietors and partners, and also 
 editor of a periodical, will, on a dissolution of the partnership, be 
 restrained from advertising that the publication will be discon- 
 tinued ; the right to use the name of the work is part of the 
 partnership assets, and must be sold for the benefit of all the 
 partners (2). The Court will restrain a publisher from issuing 
 a newspaper with a colourable imitation of the name of another 
 newspaper, and as a continuation of that newspaper (3). An 
 agreement by a publisher not to publish in future a magazine 
 of a particular description, is like the case of an agreement by 
 the proprietor of a particular article of trade, after disposing of 
 it to another, not to deal with that article again, and is not void 
 as a too general restraint ou trade, and the Court will restrain 
 the breach of such an agreement (4). 
 
 5. A Court of Equity will construe agreements between actors 
 and managers of theatres, and will enforce or jefuse to enforce 
 such agreements according to the circumstances of the case (5). 
 But if a manager has broken an implied engagement on his part 
 in a contract, the Court will not restrain an actor from breaking an 
 implied engagement on his part in the contract (6). If a contract 
 between an actor and a manager contain an implied engagenient 
 only on the part of the actor that he will not perform at any 
 other theatre for a certain period, the Court will restrain him 
 from so doing, it is not necessary that such a contract should 
 contain an express negative' stipulation not to do so (7). 
 
 (1) Mayhew v. Maxwell, 1 J. & H. 
 312 ; 9 W. R. 118. 
 
 (2) Bradbury v. Dickens, 27 Beav. 
 53 ; 28 L. J. (Ch.) 667. 
 
 (3) Prowett v. Mortimer, 2 Jur. 
 (N. S.) 414. 
 
 (4) Ainsworth v. Bentley, 14 W. E. 
 630. 
 
 (5) Fechier v. Montgomery, 33 Beav. 
 22. 
 
 (6) lb. 
 
 (7) Montague v. Flocldon, L. E. 16 
 Eq. 189, 198 ; 42 L. J. (Ch.) 677 ; 21 
 W. R. 668; 28 L. T. (N. S.) 580; el 
 vide Webster v. Billon, 3 Jur. (N. S.) 
 432. 
 
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BARRISTER, COUNSEL— SOLICITOR, ATTORNEY. 281 
 
 Sect. 4. Officers of the Couri — Beeeivers, Sequestrators. Pabt ir. 
 
 Chaptee IV. 
 
 1. Whereyer the title to redress against an officer of a Court of officers of the 
 Equity is founded on a denial of his authority, or on an alleged Com-t. 
 defect in the order which he has executed, that Court (which is 
 
 alone competent to decide upon the validity of its own orders) 
 is bound to interpose by injunction, and assume exclusive juris- 
 diction over the matter of complaint (1). And further, such a 
 Court will not permit proceedings in another Court to be con- 
 tinued, where the question to be tried is how far its officers have 
 conducted themselves with propriety in the execution of its 
 orders (2). Nor will it allow proceedings in other Courts for an 
 improper execution of its orders (3). And compensation can be 
 got in a Court of Equity only, for any misuse of its own pro- 
 cess (4). 
 
 2. A Court of Equity will not, unless with its leave, permit its Eeceivers, 
 receiver to be interfered with or dispossessed of the property of 
 
 which he is appointed receiver, nor will it allow payment to him 
 to be intercepted, although the order appointing him may be 
 perfectly erroneous (5). Nor will the Court allow its sequestrators 
 to be dispossessed (6). But the Court will restrain its receiver 
 from prosecuting an unjust and vexatious suit at Law (7). 
 
 Sect. 5. Barrister, Oownsd — Solicitor, Attorney. 
 
 1. A barrister who has been legal adviser to a party, and in one Barristers, 
 case in particular, of a controverted claim, will not be allowed to 
 buy up the claim, which his client had sought to compromise, 
 though the relation of counsel and client has ceased ; and if a 
 counsel makes such a purchase, it will be held a trust for bis 
 
 (1) Aston V. Eeron, 2 My. & K. (5) Ames v. Birherihead Docks 
 390. {Trustees of), 20 Beav. 332. 
 
 (2) Ex parte Clark, 1 Buss. & My. (6) Pelham (Lord) v. Newcastle 
 563. {Duchess), 3 Sw. 289. 
 
 (3) Eyde v. Eolmes, 2 Moll. 273 ; (7) Matter of Merritt, 5 Paige, 125 
 Batchelor v. Blake, I'Hog. 198. (Amr.). 
 
 (4) Nugent v. Nncjent, 2 Moll. 372. 
 
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282 
 
 BARRISTER, COUNSEL— SOLICITOR, ATTORNEY. 
 
 Paet II. 
 
 Chapteb IV. 
 
 Sect. 5. 
 
 Solicitor, 
 Attorney. 
 
 former client (1). A deed of gift, or a contract executed by a 
 client in favour of a barrister wbo bas brougbt a protracted and 
 complicated litigation to a successful issue, will be set aside upon 
 evidence of undue influence over or want of independent advice 
 on tbe part of the client (2). 
 
 2. A Court of Equity will restrain by injunction a counsel from 
 divulging secrets of a former client (3). 
 
 3. If parties do not take the usual means of securing the pro- 
 fessional assistance of counsel, the Court will not interfere in 
 questions arising upon tbe practice of retainer, and will decline 
 to restrain a particular counsel who bas acted for one party in 
 a caq^e, from acting as counsel for another and opposite party 
 in the cause (4). 
 
 4. A Court of Equity will not suffer counsel to maintain an 
 action for fees, which are quiddam honorarium ; nor, if a counsel 
 happens to be a mortgagee, will it admit snch a clandestine way of 
 coming at his fees, as to permit bim to insist upon more interest 
 than he is entitled to (5). 
 
 5. A Court of Equity will restrain a solicitor from violating the 
 stipulations of a bond entered into, to prevent his practising with- 
 in an agreed distance of a place, and bis acting as agent or legal 
 adviser for a certain party (6). And a covenant by an articled 
 clerk not to practise as a solicitor within the City of ^London or 
 the counties of Middlesex or Surrey is a reasonable restriction 
 and will be enforced (7). 
 
 6. A solicitor will be restrained from communicating to a party 
 who is suing a former client, documents, or matters of evidence, 
 which came to the possession or knowledge of the solicitor in 
 respect of his employment for such client; and the party will 
 be restrained from using in any action, or otherwise, any docu- 
 
 (1) Carter v. Palmer, 1 Ir. Eq. Rep. 
 289 ; 1 D. & Wal. 722. 
 
 (2) BroUn v. Kennedy, 4 De Gr. J. 
 & S. 217 ; 33 Beav. 133 ; 33 L. J. (Ch.) 
 342; 10 Jur. (N. S.) 141. 
 
 (3) Carter v. Palmer, 1 Iv. Eq. Rep. 
 302.. 
 
 (4) Baylls y. Grout, 2 My. & K. 
 316 ; et vide Ex parte Else, In re 
 
 Joiner, Mont. 69 ; Ex parte Lhyd, lb. 
 70, note (a). 
 
 (5) Thornhill v. Evans, 2 Atk.332; 
 9 Mod. 331. 
 
 (6) Edmonds v. Plews, 6 Jur. 
 (N. S.) 1091. 
 
 (7) May v. ffNeill, 44 L. J. (Oh.) 
 660 (ei vide Pt. II., cbap. 2, s. 3, p. 230, 
 ante, " Restraint of Trade")- 
 
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BAREISTEE, COUNSEL— SOLICITOR, ATTORNEY. 283 
 
 ments or matters of evidence which he has so obtained (1). But a Part II. 
 clerk to a solicitor, commencing practice for himself, will not be seot. 5. 
 restrained from acting as solicitor for parties against whom his 
 master was employed, upon general allegations of his having, in 
 his former service, acquired information likely to be prejudicial 
 to the clients of his master (2). And the Court will not restrain 
 a solicitor who has acted, to a certain extent only, for defendants 
 in an amicable suit, from acting in another suit instituted by some 
 of those defendants against others of them, where he swears that 
 he is not confidentially possessed of any secrets which might be 
 used to the prejudice of such other defendants, and that he has no 
 knowledge of any facts unknown to his clients (3). 
 
 7. If a client, a managing executor, discharge his solicitor, the 
 Court will not restrain the solicitor from acting as solicitor for 
 the plaintiffs in a cause in which the former client is defendant 
 as managing executor (4) ; tliough if a solicitor who has been 
 discharged voluntarily makes communications of what has come 
 to his knowledge confidentially, it is a great breach of his duty, 
 and it would seem that the Court would restrain the solicitor from 
 making such communications (i>). But the Court will restrain a 
 solicitor, who has virtually discharged himself from a client, from 
 communicating to another client who has commenced proceedings 
 against the former client, in respect of a matter, as, for instance, 
 the negotiation of an agreement, in which the solicitor had been 
 engaged for that former client, any information relating to the 
 agreement that came to his knowledge confidentially as the so- 
 licitor of the former client (6). Nothing can be considered a 
 greater breach of professional duty than for a solicitor, first of all, 
 as the solicitor of one party, to carry on a negotiation for the 
 benefit of that party, and hare it completed, and afterwards to act 
 as the solicitor for other parties, in order, by his own personal 
 knowledge of the transaction, to destroy that which he has done 
 for his former client (7). An attorney or solicitor discharging 
 
 (1) Lewis V. Smith, 1 Mac. & G. Sm. !i58 ; sed vide Biggs v. Head, Sau. 
 417. & Sc. 335. 
 
 (2) Bricheno v. llwrp, Jao. 300. (5) Beer v. Ward, Jac. 77. 
 
 (3) Edbinson v. Mullett, 4 Price, (6) Davies v. dough, 8 Sim. 262, 
 353. 269. 
 
 (4) Parrait v. Farratt, 2 Dc G. & (7) lb. 
 
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284 
 
 EXECUTORS, ADMINISTRATORS— DEVISEE. 
 
 Part II. himself, or being removed by the effect of an agreement made 
 ^E0T^5. " upon a dissolution of partnership, and not by the discharge of the 
 client, is not in the situation of a solicitor discharged by the chent, 
 and therefore cannot become the solicitor of the other party in the 
 same cause (1). And so a solicitor voluntarily changing his situa- 
 tion will be prevented from giving evidence of his client's secrets, 
 or from proceeding to communicate a material fact, even by strik- 
 ing him off the rolls (2). Solicitors in partnership cannot dissolve 
 their partnership as against their client, without his consent, so as 
 to enable the retiring partner, as discharged, to act against him (3); 
 or so as to turn over their client to one of themselves (4). 
 
 Executors, 
 Administra- 
 tors. 
 
 Sect. 6. Executors, Administrators — Devisee. 
 
 1. The personal representatives of a person deceased are the 
 proper parties to sue to recover the assets, and parties interested 
 in the estate, not being the legal personal representatives, will not 
 be allowed to sue for that purpose, unless it be satisfactorily shewn 
 that assets exist, which might be recovered, and which, but for 
 such suit, would probably be lost to the estate ; and after a decree 
 for administration, a legatee cannot sue the debtors to recover the 
 assets, in the absence of any refusal or neglect of the personal 
 representatives to do so (5). And it is not sufficient ground in 
 such a case, to entitle a residuary legatee to file a bill for that 
 purpose against executors who are also shareholders and officers 
 of a company in which their testator was a shareholder, that the 
 executors have interests which conflict with their duty ; it must be 
 shewn that the executors intend to neglect the performance of the 
 duties of their office (6). The general principle, in cases where 
 plaintiffs have been allowed to enforce claims, the right of doing 
 which is vested in anotlier, so far as those cases relate to the 
 assets of deceased persons, in cases of executors and surviving 
 partners of the testator, is this, that such a bill may be supported 
 
 (1) Cholmondeley (EarT) v. 
 ainton., 19 Ves. 261. 
 
 (2) lb. 268. 
 (.3) lb. 273. 
 
 Lord (4) Oooh v. Rhodes, 19 Ves. 273, n. 
 
 {S) Stainton v. Carron Co., 18 Beav. 
 146. 
 (6) lb. 
 
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EXECUTOES, ADMINISTRATORS- DEVISEE. 285 
 
 in all cases where tlie relation between the executors and the sur- Paht ll. 
 viving partners is such,' as to present a substantial impediment "sEOT-^e. ' 
 to the prosecution by the executors of the rights of the parties in- 
 terested in the estate (1). A suggestion by the trustees of a fund 
 that the administrator of the cestuis que trust, who, in that cha- 
 racter, is entitled to a distributive share of the fund, has unfairly 
 obtained the letters of administration under which he claims such 
 share, is no defence to a claim of the administrator (2). 
 
 2. Although an administrator is, by the sentence of the Court 
 which granted the letters of administration, both legally and 
 equitably entitled to the assets of the intestate (3), and a Court 
 of Equity is not at liberty to question the validity of the appoint- 
 ment, in the proper Court, of executor (4) ; yet a Court of Equity 
 will, in a proper case, as on the ground of insolvency, restrain an 
 administrator from transferring the intestate's stock into his own 
 name ; and it would seem that such an injunction will, by equi- 
 table construction, operate to prevent his parting with any of the 
 intestate's outstanding estate, which has previously come to his 
 hands (5). And the Court will restrain a defendant who is alleged 
 to have improperly obtained probate and to be insolvent, from re? 
 ceiving the testator's assets and from prosecuting actions at Law 
 for that purpose (6). So a Court of Equity will restrain an 
 executor, who is residing out of the jurisdiction and is insolvent, 
 from prosecuting proceedings at Law to obtain a fund belonging 
 to the estate, which it is feared may be wasted, until he submits 
 himself to the jurisdiction of the Court (7). An executor claim- 
 ing under a will and also by gift from a testatrix in her lifetime, 
 will, upon evidence of undue influence, be restrained from con- 
 verting furniture and other specific property into money (8). 
 
 3. The pendency of a suit in a Court of Probate to have the 
 probate or letters of administration recalled, is not of itself a suffi- 
 cient ground to induce a Court of Equity to grant an injunction 
 
 (1) Travis v. Milne, 9 Hare, 149 ; (5) Scott v. Eeecher, 4 Price, 346. 
 Stainton v. Garron Co., ante. (6) Mansfield v. Shaw, 3 Madd. 100. 
 
 (2) Devey v. Thornton, 9 Hare, 22. (7) Dougherty v. Walker, 15 Geo. 
 
 (3) Maher v. Gorman, 6 Ir. Eq. 442 (Amr.). 
 
 Rep. 304. (8) Edmunds v. Bird, 1 V. & B. 
 
 (4) Thornton v. Curling, 8 Sim. 542. 
 310. 
 
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286 BXECUTOES, ADMINISTKATOES— DEVISEE. 
 
 Part II. and receiver against the personal representative, to restrain him 
 Se™V^' from receiving the assets (1). It would be different if there were 
 ' fraud or improper conduct (2). However, if the executor has 
 
 agreed that the validity of the testamentary paper by which he 
 was appointed, shall be tried in a suit to recall probate, the Court 
 will grant an injunction and a receiver (3). There is no doubt 
 that, by the rule of the Court of Equity, if the representation is 
 in contest, and no person has been constituted executor, the Court 
 interferes, not because of the contest, but because there is no 
 proper person to receive the assets. If there be a contest who 
 shall be executor or administrator, and there is nothing to shew 
 who is entitled to be considered as sustaining either of those 
 characters, the interference of a Court of Equity is quite of 
 course (4). And if an executor agree that the validity of the 
 testamentary papers by which he was appointed shall be tried in 
 a suit to recal probate, that will justify the Court in interfering, 
 since he treats himself as not being complete executor (5). Equity 
 will not permit a party claiming to be widow of a deceased 
 person to take possession and dispose of any part of the personal 
 estate, where there is a question as to her marriage, and there is a 
 claim for a grant of administration by one of the next of kin (6). 
 If a will is being litigated in the Probate Court on a suggestion 
 that it was unduly obtained, the executor, being supposed to be 
 insolvent, will be restrained from getting in the debts of the 
 deceased, pendente lite (7). The Court will restrain an insolvent 
 executor who is getting in the assets before probate, from so 
 doing (8). 
 
 4. After the usual administration decree in a creditors' suit in a 
 Court of Equity, that Court will stay all further proceedings in an 
 action by a creditor against the executor (9). The result of per- 
 
 (1) Connor Y. Connor, 15 Sim. 598; D. & A. 41; 34 L. T. 854. See the 
 et vide Watkins v. Brent, 1 My. & Cr. Judicature Act, 1873, s. 25, subs. 8. 
 97 ; 7 Sim. 512. (7) Smallpiece v. Anguish,! Ch. Ca. 
 
 (2) WatJcins v. Brent, supra. 75. 
 
 (3) lb. (8) Smith v. Aykwell, 3 Atk. 566; 
 
 (4) lb. S. C. suh. mm. Smith v. liaytwdl, 
 
 (5) Wathins v. Brent, 1 My & Cr. Amb. 66. 
 
 97, 104. (9) Vernon v. Thelluson, 1 Ph. 466; 
 
 (6) Brand v. Mitson (otherwise 14 L. J. (N. S.) Cli. 83 ; 7 Jur. 503. 
 Brand), 24 W. R. 524 ; 45 L. J. P. 
 
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EXECUTORS, ADMINISTRATOES— DEVISEE. 287 
 
 mitting the action to go on, would be that the assets which would Pabt il. 
 have been recovered in the action, would have been withdrawn from seot. 6. 
 
 the general fund, which ought to be distributed in the Court of 
 lEquity for the common benefit of all the creditors (1). But the ' 
 Court in these cases requires to be informed of the state of the 
 assets, before it will stay the proceedings at Law (2). If executors 
 plead the decree in an administration suit, to an action brought 
 by a creditor, which plea is held bad by the Court of Law and 
 judgment given for the plaintiff, the Court of Equity will restrain 
 the latter from proceeding against the assets of the testator, but 
 will not deprive him of any right at Law the judgment may give 
 him against the executors personally (3). The rule of a Court of 
 Equity is, that if the executor does, at Law, so manage the matter 
 as to make himself personally liable, such a Court will leave him 
 to be dealt with at Law as the Court of Law will permit, but a 
 Court of Equity will not suffer any judgment that may be re- 
 covered at Law to interfere with its own decree (4). la cases 
 proper for Law a man must defend himself by legal pleadings, 
 and every executor ought to be careful, in the first place, to 
 cover all his assets with a judgment (5). But if executors have 
 misapplied the assets, the Court will not restrain execution upon a 
 judgment, de honis testatoris, et si non, de honis propriis, obtained at 
 Law, before the decree for an account, in a suit by legatees against 
 the executors (6). 
 
 5. If, upon a bill to establish a will and to have the trusts Devisee, 
 executed, a verdict in favour of the will, on an issue devisavit 
 vel non directed to be tried, has been given, and upon the hearing 
 of the cause on the equity reserved, the will is decreed to be 
 established, and the trusts executed; the Court will grant a 
 perpetual injunction to restrain proceedings at Law in ejectment 
 for recovery of the estates devised, by a de.isee of the heir-at- 
 law of the original testator (7). 
 
 (1) Vernm v. Thelluson, 1 Ph. 466 ; 569 ; Srook v. Skinner, 2 Mer. 481 n. ; 
 14 L. J. (N. S.) Ch. 83 ; 7 Jur. 503. Bamsden v. Jacksm, 1 Atk. 294. 
 
 (2) lb. Paxton v. Douglas, 8 Ves. (4) Buries v. Popplewell, ante. 
 520; Cfilpin v. Lady Southampton, 18 (5) Anon., 1 Vern. 119. 
 
 Ves. 469. ' (6) Lee v. Park, 1 Keen, 714. 
 
 (3) Bnrles v. Popplewell, 10 Sim. (7) Lowe v. JoUffe, Dick. 388. 
 383; vide Kent v. Pickering, 5 Sim. 
 
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288 
 
 SOVBEEIGN, SOVEREIGN PEBEOGATIVES— AMBASSADORS. 
 
 Paet II. 
 Chapteb IV. 
 
 Sovereign, 
 Sovereign 
 prerogatives. 
 
 Ambassadora. 
 
 Sect, 7. Sovereign, Sovereign Prerogatives — Ambassadors. 
 
 1. Although a Court of Equity will not interfere to protect the 
 invasion of a mere sovereign right, nor interfere in aid of the 
 prerogative of a foreign sovereign— as for instance the use, in this 
 country, of the royal arms of a foreign state — yet it is different as 
 to the right to regulate the coinage and issue of notes for payment 
 of money, as part of the circulating medium; for though this 
 is part of the sovereign prerogative recognised hy the law of 
 nations, which is part of the Common Law of England, still, money 
 being the medium of commerce, a foreign sovereign in amity with 
 this country, suing in the Court of Chancery to protect his pre- 
 rogative right of issuing coin, or paper money, will have his right 
 protected from invasion ; and the Court will protect, hy injunc- 
 tion, the property to which he is entitled as sovereign, or of his 
 subjects, being represented by him, where a damage to such pro- 
 perty is done or threatened by persons resident within the juris- 
 diction of the Court (1). 
 
 2. Courts of Law, although they will preserve the private 
 rights of sovereign princes, if by so doing the sovereign acts of 
 the state are not interfered with, cannot take cognizance of acts 
 of power exercised by governments in matters of state arising 
 out of war; the acts of a government, performed in exercise of 
 its sovereign and political power, are not subject to the control of 
 Courts of Law or Equity (2). The transactions of independent 
 sovereign states between each other are governed by other laws 
 than those which municipal Courts administer, and such Courts 
 have neither the means of decreeing what is right, nor the power 
 of enforcing any decisions which they may make (3). 
 
 3. Although the Courts in this country cannot make an order 
 against a foreign ambassador who does not submit himself to the 
 jurisdiction, yet the Court of Chancery will restrain a third party 
 from handing over to him a fund, the right to which is in dispute, 
 
 (1) Emperor of Austria v. Day and 
 Kossuth, 2 Gifif. 628 ; 7 Jur. (N. S.) 483, 
 639 ; 9 W. E. 568 ; 30 L. J. (Ch.) 690. 
 
 (2) Wadeer v. East India Go., 7 Jur. 
 (N. S.) 350; S. C. suh. nom. Veer 
 
 Eajundur Wadeer, v. East India Co., 
 30 L. J. (Ch.) 226 ; 9 W. E. 247. 
 
 (3) Secretary of State for Mia v. 
 Kamachee Boye Sahabor, 13 Moo. P. C. 
 22 ; 7 Moo. Ind. Ap. 476. 
 
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FELONS, FELONY -LIBEL, CRIMES, REPUTATION, ETC. 289 
 
 and that, notwithstanding his title to the fund may be absolute at Pabt ii. 
 Law(]). An injunction cannot be sustained against the agent of Beot!V 
 a foreign goTernment, whose business in this country is only that ' 
 
 of settling certain claims upon the foreign government, but whose 
 acts in that capacity are done entirely under the ambassador of 
 the foreign country resident in this country (2). A foreign sovereign 
 can, but his minister cannot, sue in respect of the property of that 
 sovereign (3). 
 
 Sect. 8. Felons, Felony — Libel, Crimes, Refutation, Mercantile 
 
 Credit. 
 
 1. The rule of law, that a felon cannot be sued upon a civil Felons, 
 action in respect of a transaction which amounts to felony, is a 
 
 rule of public policy. The reason of the rule is, that persons who 
 have been defrauded by felonious acts, should do their duty to the 
 public by prosecuting for felony, before they seek redress for the 
 private injury to themselves in a Civil Court ; but where public 
 policy ceases to require its operation, the rule ceases to operate 
 also ; and if a party commits an act said to be felonious, and dies 
 before the felony is discovered, the operation of the rule of public 
 policy is never required, and a prosecution for felony has become 
 impossible ; and a Court of Equity will restrain the personal repre- 
 sentative of such a party from continuing proceedings at Law 
 against the party who was defrauded by him, to obtain possession 
 of assets in that party's hands, upon a bill by him for the ad- 
 ministration of the estate of the deceased felon (4). 
 
 2. A Court of Equity has no jurisdiction to stay the publication Libel, Crimes, 
 of a libel by injunction (5). It is clearly settled that the Court of Mercantile' 
 Chancery has no jurisdiction to restrain the publication of state- 
 
 (1) Gladstone v. Musurus Bey, 1 H. Don Diego de Acuna v. Bmgley, Hob. 
 & M. 495 ; 9 Jur. (N. S.) 71 ; 32 113 b. 
 L. J. (Gh.) 155. (4) Wickham, v. Gairill, 2 Sm. & 
 
 (2) Service v. Oastaneda, 2 Coll. 56. Giff. 853 ; 18 Jur. 768 ; 23 L. J. (Ch.) 
 
 (3) Penedo {Boron) v. Johnson, 22 783 ; vide Ghowne v. Baylis, 31 Beav. 
 W. B. 103 ; 29 L. T. (N. S.) 452 ; 351 ; Stone v. Marsh, 6 B. & C. 562 ; 
 United' States of America v. Wagner, Marsh v. Keating, 1 Bing. N. C. 217. 
 L. B. 2 Ch. 582; 15 W. R. 634; (5) Clarh v. Freeman, 11 Beav. 
 Schneider v. Lizardi, 9 Beav. 461 ; 112. 
 
 XT 
 
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 credit. 
 
290 FELONS, FELONY— LIBEL, CRIMES, REPUTATION, ETC. 
 
 Part it. ments, or expressions, or comments with reference to property, or 
 "seot^'s trade or business — merely because the publication thereof is a 
 
 libel (1). It has no jurisdiction to restrain the publication of a 
 
 libel merely because it is a libel (2),- Still, though it is clear that 
 the Court of Chancery has no jurisdiction to restrain acts which 
 amount to the commission of a crime only, and being merely 
 criminal or illegal only, yet, notwithstanding it has been held 
 that there is no jurisdiction to restrain a pubh'cation, whether 
 libellous or not, merely because it may tend to injure property (3), 
 it would seem to be the better opinion that it will interfere hy 
 injunction to stay any proceedings, whether connected with crime 
 or not, which go to the immediate, or tend to the ultimate destruc- 
 tion or deterioration of property or a business, or make them less 
 valuable or comfortable for use or occupation (4). But the Court 
 will not interfere to restrain the publication of a libel where the 
 statements complained of are not false as statements of facts, but 
 only false as statements of deductions from principles, or state- 
 ments of the results deduced from false principles; or while it is 
 uncertain whether what is stated is false or true, and it is reasonably 
 certain that there is no malice (5). Nor will the Court restrain 
 the publication of a description of the character of property — for 
 instance a ship — by a society of which the plaintiff is a member, 
 where the society is accustomed to furnish to its members that 
 information — and thus indirectly to the public — though that de- 
 scription may be injurious to the plaintiff by destroying the repu- 
 tation of that property, in the particular trade in which it is 
 employed ; unless there be malice or improper conduct, or any 
 improper motive actuating the defendant to injure the plaintiff (6). 
 But a person complaining of a libel in a newspaper is, under the 
 provisions of the 6 & 7 Will. 4, c. 76, s. 19, and the 32 & 33 Vict, 
 
 (1) Prudential Assurance Co. v. (4) Springhead Spinning Co. v. 
 Knott, L. E. 10 Ch. 142 ; 44 L. J. (Ch.) Hiley, L. R. 6 Bq. 551 ; 37 L. J. (Ch.) 
 192 ; 23 W. R. 249 ; 31 L. T. (N. S.) 889 ; 16 W. R. 1138 ; 19 L. T. (N. S.) 
 866. 64. 
 
 (2) Fisher v. ApolUnaris Co., L. R. (5) Mulkern v. Ward, 13 W. B. 
 10 Oh. 297, 302; 44 L. J. (Ch.) 619, 622; 41L. J. (Ch.) 464; 26L.T. 
 ".00 ; 23 W. R. 460 ; 32 L. T. (N. S.) (N. S.) 831 ; L. E. 13 Eq. 619. 
 
 628. (6) Clover v. Boyden, L. K. IV Bq. 
 
 (3) 0' Grady v. Orr, Ir. R. 10 Eq. 190,203; 43 L. J.(Ch.)665; 22W.B. 
 111. 254 ; 29 L. T. (N. S.) 639. 
 
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FELONS, FELONY— LIBEL, OEIMBS, REPUTATION, ETC. 291 
 
 c. 24, entitled to a discovery from the printer and publisher of the Pabt ii. 
 name of the proprietor, for the purpose of bringing an action for '^°se™8^^" 
 damages sustained by reason of the libel (1). 
 
 3. The publication of a libel is a crime, and there is no jurisdic- 
 tion in a Court of Equity to prevent the commission of crimes, 
 excepting, of course, such cases as belong' to the protection of 
 infants, where a dealing with an infant might amount to a crime, 
 an exception arising from that peculiar jurisdiction of the Court 
 of Chancery (2). But the fact of libel being an indictable offence 
 will not repel the right to the common defences in a civil action 
 by the party injured, brought for damages ; and the defendant in 
 the action is entitled to the ordinary means, by a bill of dis- 
 covery, of proving the truth of a plea of the matters in justifica- 
 tion (3). 
 
 4. A Court of Equity will not restrain criminal proceedings, 
 where the object sought is punishment for a criminal offence, 
 though taken by a party who is seeking to obtain relief in Equity 
 against the same parties, in respect of the same subject matter. 
 But there is no doubt that there have been cases in which the 
 object of criminal proceedings taken by a party to a suit in the 
 Court of Chancery, has been so identical with the civil remedy, 
 that that Court has thought it right to order that the party 
 should not pursue his remedy in both Courts (4). The Court will 
 not restrain a public body — ^for instance a local Board — from 
 taking steps by way of criminal proceedings which it is authorized 
 by statute to take, to recover penalties by reason of the violation 
 of provisions in that statute ; it is a criminal proceeding, and as 
 a general rule, there can be no right to restrain a criminal pro- 
 ceeding (5). 
 
 5. It is well established by authority that the Court of Chancery 
 has originally no jurisdiction whatever to enjoin or regulate the 
 proceedings upon an indictment (6). Nor has it jurisdiction to 
 
 (1) Bixon V. Enoch, L. E. 13 Eq. (4) Saull v. Browne, 23 W. B. 50 ; 
 
 394;20W.E.459;26L.T.(N.S.)127. L.E.lOOh.64; 44 L. J. (Ch.) 1 ; 31 
 
 ^ (2) aee V. Pritchard, 2 Sw. 413 ; L. T. (N. S.) 493. 
 
 Anon., 2 Atk. 469. (5) Kerr v. Mayor, ^c, of Preston, 
 
 (3) Macaulay v. Shackell, 1 Bli. 25 W. E. 265. 
 
 (S. 8.) 96; vide Shackelly.Macaulay, (&) Att.-Oen. v. Cleaver, 18 Ves. 
 
 3 L. J. (N. S.) Cli. 40. 220. 
 
 u 2 
 
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292 FELONS, FELONY— LIBEL, CRIMES, EBPUTATION, ETO. ' 
 
 Pakt il restrain quasi-criminal proceedings on the part of the municipal 
 Sect. 8. authorities of a city, for repeated violations of an alleged inyalid 
 ' ordinance (1). But circumstances may give a Court of Chancery 
 
 jurisdiction to enjoin or regulate the proceedings upon an indict- 
 ment — as for instance where the relators in an information are 
 the persons prosecuting the indictment, the Court would have 
 control by order personally afl'ecting them (2). So the Court will 
 stay proceedings in an indictment for trespass, where biUs have 
 been filed in Chancery by the plaintiff and defendant to try their 
 right to the property in question (3). 
 
 (1) Williams V. Detroit, 2 Mich. 560 (2) Att.-Qen. v. Cleaver, 18 Tes, 
 
 (Amr.). 220. 
 
 (3) Pilkington v. City of York, Dick. 84. 
 
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( 293 ) 
 
 CHAPTER V. 
 
 The Doctrines and Peinciples as Applicable to 
 coepoeations and quasi coepoeations. 
 
 Sect. 1. Munieipal Corporations — Corporations Aggregate. ^^^'^ W- 
 
 1. A suit against a corporation to enforce public trusts must be Municipal 
 
 ~ . corporations, 
 
 filed by the Attorney-General, and not by an individual member 
 
 of the corporation, though he allege himself entitled to a separate 
 benefit ; and if a burgess claims an individual right in a part of 
 the corporate estate —for instance a right of pasturage — it must be 
 considered as made in his corporate, and not in bis individual 
 capacity ; and if particular lands of the corporation have been sold, 
 in which a burgess claims such a right of pasturage, no distinct 
 claim can be made by the burgess individually, for compensation 
 out of the unsold property of the corporation (1). The Attorney- 
 General may maintain a suit to restrain the alienation of corporate 
 property pending the granting of a charter, and may also maintain 
 a suit to recover the property after the charter is granted (2). 
 The Court will not inquire into the validity of a charter, but will 
 act upon it as being valid, until proper proceedings are taken to 
 set it aside (3). 
 
 2. Although a corporation may be entitled to grant leases of the 
 corporate property — for instance a market-place^ — yet, if the rents 
 are devoted to the maintenance of the property, it is not entitled to 
 demise the property at diminished rents upon payment of fines (4). 
 
 3. Although where persons have special powers conferred on 
 them by Parliament for effecting a particular purpose, they cannot 
 
 (1) Evan V. Corporation of Avon, (Ch.) 172.) 
 29 Beav. 144; 30 L. J. (Oh.) 165. (3) lb. 
 
 (2) AU.-Qen. v. Avon {Portreeve, (4) Att.-Gen. v. Avon, otherwise 
 &e.), 9 Jur. (N. S.) 1117 ; 11 W. R. Aberavon (Portreeve, &c.), 3 De G. J. 
 709. (See this case on appeal, 33 L. J. & S. 637. 
 
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294 MUNICIPAL COEPORATIONS— COEPOEATIONS AGGREGATE. 
 
 Pabt II. be allowed to exercise those powers for any purpose of a collateral 
 
 ChAPTEB v. Tin 1-1/1 
 
 Sect. 1. kind ; and therefore, a company authorized (making due com- 
 ' pensation) to take compulsorily the lands of any person for a 
 
 definite object, may be restrained from attempting to take them 
 for another object; yet the case is different where an existing 
 public body, such as the corporation of a city, is entrusted by the 
 Legislature with the duty of making public improvements in its 
 city ; the powers thus entrusted to it for such a purpose will not 
 be subject, as in the other case, to a strict and restrictive con- 
 struction (1). The cases which decide that a railway company 
 cannot take compulsorily more land than is actually required for 
 its works, do not apply to a corporation taking lands for public 
 improvements, and a corporation is entitled to take compulsorily 
 all the lands comprised in its notice to treat, though they are 
 more than actually required for its works (2). 
 
 4. Where persons are appointed by an Act of Parliament to 
 perform a public oflSce — as for instance to keep up the navigation 
 of a river — they ha-ve, prima facie, the first right to be judges as 
 to what is necessary to enable them to perform that office, being a 
 public body entrusted with powers and duties for a public purpose ; 
 and a Court of Equity gives, in the first instance, credit to them 
 as being the best judges of what they want, assuming that they 
 are actuated by no other object than that of doing their duty (3). 
 
 5. A Court of Equity will restrain a corporation from permitting 
 corporate land to be used for any other purpose than that to which 
 it has been dedicated by an Act — as for instance from permitting 
 a cattle-fair to be held on land directed by an Act to be kept in 
 proper condition for the purpose of public recreation (4). 
 
 6. A Court of Equity will restrain the toWn council of a 
 borough from acting upon a notice duly given — for instance, as to 
 building in a certain line — where they have already permitted the 
 party served to act upon a plan approved by their committee (5). 
 
 (1) Oalloway v. City of London, (3) Att.-Oen. v. Great 
 L. R. 1 H. L. 34 ; 10 Jur. (N. S.) 552 ; Bailw. Co., L. E. 6 Oh. 572 ; 19 W. B- 
 12 W. E. 891 ; 10 L. T. (N. S.) 439. 78a 
 
 (2) Quintan v. Bristol {Mayor, &c.), (4) Attorney-General y. Southamp- 
 43 L. J. (Ch.) 783 ; 22 W. E. 434 ; ton (Mayor, &c.), 2 Giff. 363. 
 
 L. E. 17 Eq. 524; 30 L. T. (N. S.) (5) She v. Bradford {Mayor, ic), 
 
 112. 4 Giff. 262 ; 9 Jur. (N. S.) 815. 
 
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MUNICIPAL CORPORATIONS-CORPORATIONS AGGREGATE. 295 
 
 So it will restrain a corporation from exercising powers given PabtIL 
 to it by statute — for instance a power of prescribing a line of gucT, x. 
 building — where it has lain by until the line has been passed by 
 a building (1). 
 
 7. A Court of Equity will restrain the application of rates, 
 leviable by a municipal corporation for certain purposes, to any 
 other purpose (2). The borough fund is a trust fund, and is so 
 constituted by the Municipal Corporations Act (5 & 6 Will. 4, 
 c. 76), and the Court will restrain its expenditure upon any other 
 purpose than that to which it is legally applicable (3). As for 
 instance, the application of borough funds towards the expenses of 
 obtaining an Act for purposes to which the funds are not appli- 
 cable (4). And the Court has authority and jurisdiction to compel 
 the parties who receive and apply the fund, to account for the 
 sums they receive, and their application (5). And, if expedient, 
 to restrain the misapplication of the fund (6). 
 
 8. A city corporation is in the nature of a trustee of the money 
 in its treasury for the corporators, for the purposes for which they 
 were incorporated, and a Court of Equity will restrain a meditated 
 misappropriation of the trust fund ; and even if an action could be 
 maintained for the misappropriation, or for the purpose of resisting 
 the collection of the tax intended to be misappropriated, still it is 
 clear that it is not necessary to wait until the money is mis- 
 appropriated, nor until the tax shall be levied and attempted to be 
 collected, but a Court of Equity will interpose by way of pre- 
 venting the injury (7). So the Court of Chancery has jurisdiction 
 to prevent the town council of a borough from abusing a power 
 given to them by the Municipal Eeform Act, 1836 (5 & 6 Will. 4, 
 
 (1) Folhstone (Corporatimi of) v. Norwich, supra, AU.-Cren. v. Mayor, 
 Woodward, 21 W. R. 97 ; L. R. 15 Eq. &c., of Waterford, I. R. 9 Bq. 522. 
 159; 42 L. J. (Ch.) 782; 27 L. T. (5) Att.-Gen. v. Corporation of 
 (N. S,) 574. Lichfield, 11 Beav. 120 ; et vide Att.- 
 
 (2) Dublin (Corporation of) v. Att.- Oen. v. Corporation of Norwich, ante. ; 
 Oen.,9 Bligh, 395; 3 CI. & F. 289; Att.-Gen. v. Aspinall, 2 My. & Or. 
 Att.-Qen. v. Corporation of Duhlin, 613. 
 
 2 Hag. 257. (6) lb., et vide Att.- Oen. v. Mayor, 
 
 (3) Att.-Gen. v. Corporation of &c., of Liverpool, 1 My. & Cr. 171. 
 Norwich, 16 Sim. 275 ; 21 L. J. (7) New London v. Brainard, 22 
 (N. S.) Ch. 139. Conn. 552-6 (Amr.) ; et vide Att.-Gen. 
 
 (4) Att.-Gen. v. Corporation of v. Cohocs Co., 6 Paige, 133 (Amr.). 
 
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296 
 
 MUNICIPAL COEPORATIONS— OOEPOEATIONS AGGREGATE. 
 
 Pabt II. 
 
 Chapter V. 
 
 Sect. 1. 
 
 Corporations 
 ,te. 
 
 c. 76) (1). But a Court of Equity ought not to interfere in the 
 ordinary management of the borough fund (2). And if a corpora- 
 tion has the power of doing or not doing an act at their discretion, 
 Equity will not interfere with the lawful exercise of the discretion, 
 however injurious its consequences, unless it infer fraud (3). An 
 injunction will issue to restrain a city from taking priyate property 
 without legal right (4), or where it has not the power necessary 
 to enable it to raise, within a reasonable time, a sufficient sum to 
 pay for the damages caused by such intended taking, unless security 
 for payment be given (5) 
 
 9. Persons constituting a public body, interfering with the 
 property of individuals by virtue of an Act of Parliament, are 
 strictly tied down to the limits of the powers given by the Act, 
 and they are bound to shew clearly and distinctly that they are 
 empowered by the Act to do what they propose to do. And a 
 public body exceeding its powers will be restrained by injunc- 
 tion (6). Thus the Court will restrain corporations aggregate from 
 taking compulsorily more property for the purposes of the Acts 
 under which they are proceeding, than they have formally adjudged 
 necessary for those purposes (7). So they will be restrained from 
 constructing works beyond the powers of their charters (8) ; or 
 from disposipg of the corporate property for other than corporate 
 purposes (9); or from making a lease illegally (10); or from 
 violating the provisions of a statute applicable to themselves (II). 
 or of their charters (12); or from applying moneys produced by 
 •rates towards any objects other than those authorized by their 
 
 (1) Parr v. Att.-Gen., 8 01. & P. 
 409 ; Att.-Qen. v. Corporation of Poole, 
 4 My. & Or. 17. 
 
 (2) AU.-Oen. v. Corporation of 
 Norwich, I Keen, .700 ; 2 My. & Or. 
 40fi. 
 
 (3) Semmes v. Columbus, 19 Geo. 
 471 (Ami-.). 
 
 (4) Lumsden v. Milwaukee, 8 Wis. 
 485 (Ami-.). 
 
 (5) Keene v. Bristol, 26 Penn. 46 
 (Ami-.). 
 
 (6) Oldaher v. Hunt, 19 Beav. 485 ; 
 6 De G. M. & G. 376 ; et vide Att.- 
 
 Gen. V. Andrews, 2 Mac. & G. 225 ; 
 2 H. & T. 431. 
 
 (7) Tliomas v. Daw, L. R. 2 Ch. 1; 
 36 L. J. (Ch.) 201. 
 
 (8) Newark v. Elmer, 1 Stockt. 745 
 (Ami-.). 
 
 (9) Kean v. Johnson, 1 Stockt. 401 
 (Amr.). 
 
 (10) People V. New York, 32 Barb. 
 102 (Amr.). 
 
 (11) Com. V. Bank, &c., 4 AUen, 1 
 (Amr.). 
 
 (12) Manderson-v. CommercM,&0; 
 28 Penn. 379 (Amr.). 
 
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MUNICIPAL CORPORATIONS-CORPORATIONS AGGREGATE. 297 
 
 powers (1) ; or from applying such moneys towards an object within Part ii. 
 their powers, where they have attempted to effect that object Sb™i. ' 
 in a manner contrary to their corporate statutory powers (2). A 
 company will be restrained from applying the moneys subscribed 
 for its capital, to the purpose of buying up shares of the company, 
 unless in the manner prescribed by its corporate powers or by 
 statute (3). 
 
 10. A Court of Equity will decide upon the existence and the 
 extent of the powers possessed by corporations aggregate ; but, if it is 
 satisfied that they are not exceeding their powers, it will not interfere 
 by, injunction (4). But it will not allow such bodies to repay to 
 themselves the costs of unfair and inequitable applications to the 
 Legislature, out of the funds of the body they represent (5) ; or of 
 improper applications (6). Where there is a doubt whether the 
 arbitrary powers given to local boards are properly exercised, it is the 
 duty of a Court of Equity to take care that the checks appointed by 
 the Legislature have due operation in favour of the persons affected, 
 and therefore it will restrain a local board of works, which has ex- 
 ceeded its statutory powers, and has attempted to exercise arbitrary 
 powers without leaving to a person affected thereby the right of 
 appeal given by the Act, from so doing, until the question shall have 
 been determined by the proper tribunal (7). The Court will not 
 allow corporations aggregate to act arbitrarily in the exercise of 
 their powers, by attempting to procure the performance of acts 
 which they have no power to enforce (8). Nor will such bodies 
 be allowed to extend the exercise of their powers beyond the par- 
 
 (1) Att.-Gen. v. West Hartlepool L. J.(N. S.)Ch.262; 13W. R.535 ; Jot- 
 Improvement Commissioners, L. E. 10 perial Oas Light and Coke Co. v. West 
 Eq. 152 ; 22 L. T. (N. S.) 510 ; 39 London Junction Gas Co. and Great 
 L. J. (Ch.) 624; 18 W. R. 685. Western Eailw. Co., 14 W. E. 1019. 
 
 (2) Att.-Gen. v. Kingston Com/mis- (5) Att.-Gen. v. Q-uardians of the 
 sioners, 7 Ir. R. Eq. 383. Foor of Southampton, 17 Sim. 6 ; 18 
 
 (3) Eope Y. The International Fi^ L. J. (Ch.) 393 ; 13 Jur. 669. 
 nancial Sooiety, 25 W. E. 67, 203 ; vide (6) Mathias v. Wilts and Berks 
 "The Companies Act, 1867," 30 & 31 Canal Navigation Co., 34 L. T. 346. 
 Vict. c. 131. (7) Tinkler v. Wandsworth District 
 
 (4) North London Railw. Co. v. Board of Works, 1 Giff. 412 ; 2 De G. 
 Metropolitan Board of Works, Winter & J. 261 ; 3 Jur. (N. S.) 1292 ; 4 Jur. 
 V. Same, I Joh. 405 ; Salmon v. Ban- (N. S.) 293. 
 
 dall, 3 My. & Cr. 439 ; Temple Pier (8) Clarke v. Faddivgfon Vestry, 
 
 Co. V. Metropolitan Board of Works, 34 5 Jur. (N. S.) 13S. 
 
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298 MUNICIPAL COEPOEATIONS— COEPOEATIONS AGGEEGATE. 
 
 Pakt II. ticular area of their jurisdiction, except in those cases where they 
 Sect. 1. they are authorized to do so (1). However, if such bodies do not 
 exercise the discretionary powers the Legislature has given them, 
 capriciously, the Court will not interfere (2). But public works 
 ordered by Act of Parliament to be carried out by a corporation 
 aggregate, must be so executed as not to interfere with the private 
 rights of individuals ; and in deciding on the right of a single 
 proprietor to an injunction to restrain such interference, the cir- 
 cumstance that a vast population will be injured — as for instance 
 by a district remaining undrained — unless his rights are invaded, 
 is one which a Court of Equity cannot take into consideration (3). 
 If a corporation aggregate produces injury to a party in respect 
 of his private rights, by the unskilful or improper construction of 
 the works it is authorized by the Legislature to construct, the 
 Court will interfere to prevent the injury, and if necessary, to 
 enforce a proper mode of constructing the works (4). If such 
 bodies give notices for dealing with property, which are invalid, 
 as being in cases not within their Acts, a Court of Equity will 
 restrain them from proceeding on their notices (5). So if they 
 are proceeding to execute works to the injury of property in a 
 case not within their Act, a Court of Equity, unless expressly 
 excluded, has jurisdiction to interfere ; although by the Acts of 
 Parliament of such bodies, jurisdiction is given to another forum— 
 as for instance to justices at sessions, and judgment is not to 
 be removed by a certiorari, or otherwise, into any of her Majesty's 
 Courts of Eecord at Westminster or elsewhere (6). 
 
 11. A Court of Equity has jurisdiction to restrain such corpora- 
 tions from paying money secured by their bonds, to a person who 
 has wrongfully obtained possession of them, or to any other person 
 than the lawful owner of them (7). 
 
 12. It is a principle of jurisprudence' that the governing body 
 
 (1) Eayward v. Lownd-es, 28 L. J. 225; 3 Jur. (N. S.) 257; 26 L. J. 
 (Oil.) 400 ; 4 Drew. 454. (Ch.) 300. 
 
 (2) Austin V. St. Mary, Lambeth (5) Sims v. Estate Co., 14 W. E. 
 ( Vestry), 4 Jur. (N. S.) 274, 1032 ; 26 419 ; 14 L. T. (N. S.) 55. 
 
 L. J. (Oh.) 677. (6) Birley v. Constables of Chorky- 
 
 (3) Att.-Gen. v. Birmivgliam {Bo- upon-Medlock, 3 Beav. 499; vide Ker- 
 rouyh Council), 4 K. & J. 528. rison v. Sparrow, 19 Ves. 449. 
 
 (4) Stainton v. Woolrych, 23 Beav. (7) Glass v. Marshall, 15 Sim. 71. 
 
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QUASI CORPOEATIONS AGaREGATE. 299 
 
 of a corporation, that is in fact a trading partnership, cannot, in Part il. 
 
 Ohapteb V 
 general, use the funds of the community for any purpose other seot. l. 
 
 than those for which they were contributed. By the governing 
 body is not meant exclusively either directors or a general council, 
 but the ultimate authority within the society itself, which is ordi- 
 narily a majority at a general meeting. According to this principle, 
 the special powers given either to the directors or to a majority by 
 the statutes or other constituent documents of an association, how- 
 ever absolute in terms, are always to be construed as subject to a 
 paramount and inherent restriction that they are to be exercised 
 in subjection to the special purposes of the original bond of asso- 
 ciation. This is not a mere canon of English municipal law, but 
 a great and broad principle which must be taken, in absence of 
 proof to the contrary, as part of any given system of jurisprudence ; 
 though possibly in this or that system the line may be drawn 
 more or less sharply by decisions (1). 
 
 Sect. 2. Quasi Corporations Aggregate. 
 
 1. A Court of Equity will, upon a bill for a dissolution, restrain 
 the representatives of a quasi corporation aggregate, for instance 
 tbe committee and trustees of a friendly society founded on rules 
 framed on erroneous principles, from making payments under the 
 rules, tending to exhaust its funds (2). 
 
 2. Although a Court of Equity will not interfere with any 
 public duty which a public quasi corporation aggregate — as, for 
 instance, the Lords of the Treasury — have to discharge, or with 
 any discretion which they have to exercise in their public capacity, 
 yet it will restrain them from doing a mere ministerial act — such 
 as the payment of compensation money awarded for the abolition 
 of an office — with a view to secure the money for the parties who 
 may be decreed to be entitled to it (3). So it will restrain a vestry 
 from demolishing a building alleged to have been built in viola- 
 tion of a Building Act, where the vestry has lost all right to 
 
 (1) Pickering v. Stephenson, L. E. (2) Reeve v. Parldns, 2 Jac. & W. 
 
 14 Bq. 322, 340; 41 L. J. (Oh.) 493 ; 390. 
 ■20 W. R. 654 ; 2(j L. T. (N. S.) 608. (3) Ellis v. Earl Grey, 6 Sim. 214. 
 
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300 QUASI COEPOEATIONS AGGREGATE. 
 
 Part II. object to the building, threugh neglecting to act within the time 
 Sect. % ' authorized, or from proceeding on a summons issued to the wrong 
 person (1). So the Court will restrain a district board of works 
 from demolishing houses where such an act is ultra vires (2). So 
 it will restrain a local board of health actiiig under statutory 
 powers (Public Health Act 1848, 11 & 12 Vict. c. 63) from making 
 improvements — for instance, in a road — in such a manner as to be 
 unnecessarily injurious to the plaintiff (3) ; or where a local board 
 acting under statutory powers over sewers, in the exercise of those 
 powers, commits a nuisance (4). 
 
 3. The Court wiU restrain guardians of the poor from com- 
 mitting a trespass upon land, in respect of which they wrongfully 
 claim a right of way to their relieving office, causing serious 
 injury to the plaintiff (5). And in considering the injury, the 
 possible as well as the actual use of the injured premises will be 
 regarded (6). But a Court of Equity has not authority to interfere 
 in favour of quasi corporations aggregate — as, for instance, trustees 
 of a turnpike road — with the rights of property, to the extent of 
 protecting them from a future contingency only (7). 
 
 4. The Court will restrain the vestrymen of a parish from apply- 
 ing the produce of one class of rates, to objects for which they are 
 empowered to raise another class of rates, or from making good 
 the deficiencies of any one of the rates out of the produce of the 
 other rates. It is in the power of the vestry to borrow on the 
 security of any particular rate, but it cannot pledge any other 
 rates as a security, that is to say, it cannot borrow in aid of one 
 rate on the security of another (8). So a local board of health, 
 which has misapplied rates towards defraying the expenses of a 
 bill in Parliament, will be restrained from further prosecution of 
 the bill (9). 
 
 (1) Brutton v. Parish of St. (i) Att.-Oen. -7. Hackney Local Bd., 
 George's, Hanover Square, 20 W. E. L. E. 20 Bq. 626 ; 44 L. J. (Oh.) 545. 
 84 ; 25 L. T. (N. S.) 552 ; 41 L. J. (5) Ardley v. Bt. Pancras {Quardr 
 (Oh.) 134 ; L. E. 13 Bq. 339. iam), 39 L. J. (Ch.) 871. 
 
 (2) Auckland {Lord) v. Westminster (6) lb. 
 
 Local Board of Works, 4X L. J. (Ch.) (7) Cunliffe v. WhaUey, 13 Beav. 411. 
 
 723 ; L. E. 7 Ob. 597 ; 20 "W. E. 845 ; (8) Att.-Gen. v. DanieU, 4 Jur. 793, 
 
 26 L. T. (N. S.) 961. 790; 9 L. J. (N. S.) Oh. 394. 
 
 (3) Milward v. Redditch Local (9) Att.-Gen. v. Tottenham Local 
 Board of Health, 21 W. E. 429. Board of Health, 27 L. T. (N, S.) HO. 
 
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QUASI COEPORAtiONS AGGREGATE. 301 
 
 5. If a member of a club is expelled in a manner authorized by ^^bt il. 
 the rules of the club, and the meetings called for the purpose of Seot. 2. 
 expelling the member have been fairly called, and the decision 
 adopted honafde, and not through any caprice, a Court of Equity 
 will not interfere (1). And if the committee of a club have power 
 to expel any member whose conduct is, in their opinion, injurious 
 to the interests of the club, and they exercise this power, all the 
 Court requires is that the committee should form their opinion in 
 a lond fide way, and the question whether their opinion is just or 
 unjust, is immaterial ; in such a case there is no power in the 
 Court to control the judgment 0* opinion of the committee, and 
 the Court will not interfere to reinstate the expelled member (2). 
 These clubs are formed entirely for social purposes, and there must 
 be some paramount authority to keep up their objects. In some 
 cases this Court will interfere with the exercise of that pararaount 
 authority, but only where there is a moral culpability, as, if the 
 decision is arrived at from fraud, personal hostility, or bias. But 
 in cases of this description all that the Court requires is to know 
 that there was an honest exercise of judgment, it will not consider 
 whether rightly or wrongly (3). 
 
 (!)■ HopMnsonv. Marquisof JExeter, son-Gardner v. , 19 W. R. 256, 
 
 L. E. 5 Eq. 63 ; 37 L. J. (Ch.) 173 ; 259 ; 24 L. T. (N S.) 81 ; Littleton v. 
 
 16 W. E. 266. Blachhurn, 33 L. T. (N. S.) 641. 
 
 Qi) OardnerY.Freemantle, Richard- (3) Gardner w. Freemantle, supra.- 
 
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( 302 ) 
 
 CHAPTEE VI. 
 
 The Docteines and Peinciples as Applicable to Eccle- 
 siastical Mattees and Buetal Geounds. 
 
 Pabt n. 1. A Court of Equity will, upon applications for injunctions 
 
 with respect to ecclesiastical trusts, if necessary, in order to. 
 enable it to ascertain who are the cestuis que trust, decide upon the 
 doctrines of the particular church or religious community, and 
 will interfere to prevent any breach of trust by acts in Tiolation of 
 those doctrines. Thus it will remove trustees who have concurred. 
 in breaches of the trust for any particular religious community (1). 
 Whenever the trustees of a religious society, organized under a 
 law of incorporation, do any act which obstructs the enjoyment of 
 the property for the purposes and in the mode authorized by the 
 usages of the church as an organized body, they are guilty of a 
 violation of trust, which, as in other cases of trusts, will be 
 corrected by a Court of Equity (2). The Court will restrain 
 trustees of a chapel from electing as minister a person not eligible 
 to act as such with reference to the tenets of the endowment (3). 
 So it will decide upon the status of a minister and his quahfica- 
 tion with regard to the trusts of the endowment to act as such, 
 and will, if necessary, restrain him from so doing (4). So the 
 Court will decide upon the claim of a person in orders to perform 
 divine service in a chapel as rector of a parish, in respect of an 
 ofSce held by him as a layman (5). A dissenting minister placed 
 
 (1) Brummond v. Att.-Cfen., 2 H. (Amr.). 
 
 L. C. 837 ; Att.-Qen. v. Drummond, (3) MilUgan v. Mitchell, 1 My. & 
 
 1 D. & War. 353 ; and see 3 D. & K. 446. 
 
 War. 165 ; 1 Con. & L. 210 ; 2 Id. 93 ; (4) Att.-Qen. v. Murdoch, 1 De G. 
 
 Newsome v. Flowers, 7 Jur. (N. S.) M. & G-. 86 ; 7 Hare, 445. 
 
 1268 ; 31 L. J. (Oh.) 29. (5) Att.-Gen. v. St. Cross Eospital, 
 
 (2) Brunnenmeyer v. Buhre, 32 111. 2 Jur. 336 ; 25 L. J. (Oh.) 202; 18 
 183 ; Perry v. M'Ewen, 22 Ind. 440 Beav. 601 ; 24 L. J. (Oh.) 148. 
 
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ECCLESIASTICAL MATTERS, BURIAL GROUNDS. 303 
 
 in possession of the chapel and dwelling-house by trustees is only Pa^t H- 
 
 their tenant at will, and if a trust of a public nature is created, it 
 
 is essential to the purposes of the trusts that a majority of the 
 trustees should have the power, both at Law and in Equity, of 
 binding the minority, and the Court will restrain such a minister 
 removed by a majority of the trustees from ofBciating, and the 
 minority of the trustees from permitting him to do so (1). The 
 Court will take care that the number of trustees in a trust to 
 present to a living shall be properly filled up (2). So it has juris- 
 diction to decide upon the validity of an appointment by trustees, 
 of a minister to a chapel (3). So it will restrain the trustees of an 
 advowson from presenting to the bishop for induction, and the 
 bishop from inducting a minister of a parish, where the right of 
 electing the minister has been exercised by a body not having 
 that right (4). If there are trusts apart from a charter of incor- 
 poration in favour of the pastor of a church, a Court of Equity 
 has, notwithstanding the Crown may be visitor, jurisdiction to see 
 to the performance of the trusts, and determine on the validity of 
 a dismissal of the pastor, for the visitatorial power of the Crown, 
 in such a case, only relates to corporate matters, and does not 
 exclude the right of the Court to inquire whether the trusts have 
 been properly discharged towards the pastor (5). Equity will 
 restrain the use of a place of worship for any other religious 
 worship than that of its foundation (6) ; and dissenting meeting- 
 houses must continue devoted to the doctrines usually agreed on 
 at the foundation of the trust (7) ; and the Court is unquestion- 
 ably bound to administer trusts for the benefit of Protestant dis- 
 senting congregations, consisting in the application of trust pro- 
 perty to the maintenance of a preacher to the congregation (8). 
 
 (1) Perry v. SMpuuay, 1 Giff. 1 ; (5) Daugars v. Rivaz, 28 Beav. 233 ; 
 
 4 De G. & J. 853 ; 7 W. R. 406 ; 8 W R. 225 ; 6 Jur. (N. S.) 854 ; 
 
 5 Jur. (N. S.) 535, 1015. 29 L. J. (N. S.) 685. 
 
 (2) Att.-Qen. Y. Bishop of Lichfield, (6) Att-Oen. v. Welsh, 4 Hare, 
 
 5 Ves. 825. 572. 
 
 (3) Att.-Gen. v. Lawson, 15 W. R. (7) Foley v. Wontner, 2 Jac. & W. 
 100 ; 36 L. J. (Ch.) 130. 245, 247. 
 
 (4) Carter v. Gropley, 8 De G. M. (8) Att.-Oen. v. Pearson, 3 Mer. 353, 
 
 6 G. 680 ; 3 Jur. (N. S.) 171 ; 2 Jur. -396. 
 (N. S.) 1200. 
 
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304 ECCLESIASTICAL MATTERS, BUEIAL GROUNDS. 
 
 Pabt II. A Court of Equity will not aid a congregatioa to remove their 
 
 '- minister where they, having a power to remove him at discretion, 
 
 have exercised that power oppressively (1). 
 
 2. Although a Court of Equity has no jurisdiction to direct the 
 restoration of the interior of a church — as by removing pews and 
 substituting chairs — yet it will grant an injunction to restrain 
 alterations of the walls or brickwork of the church without the 
 authority of the archdeacon or bishop, on the undertaking of the 
 plaintiff to apply to the proper Ecclesiastical Court for authority 
 to restore the church to its original state (2). 
 
 3. On the principle of protecting property pending litigation, a 
 /Court of Equity will, in a suit to impeach a conveyance of an 
 advowson, restrairt the institution of a clerk by the bishop, until 
 the question has been decided, even as against a defendant 
 claiming to be a purchaser for valuable consideration without 
 notice (3). So the Court will grant an injunction to restrain 
 a bishop from inducting a party to a living, who is alleged to be a 
 devisee in trust to present the plaintiff (4). An archbishop will 
 be restrained from collating, by way of lapse, to a deanery, 
 pending a suit in the proper Court, respecting the presentment 
 by the chapter (5). So a bishop will be restrained from taking 
 advantage of any lapse pending a suit (6). 
 
 4. A Court of Equity in a case of obstruction to the induction 
 of a party to a benefice, will restrain by injunction all interference 
 therewith (7). 
 
 5. If an agreement point particularly to making judgments in 
 the hands of mortgagees of an advowson, the rector of which 
 is also the patron of the living, charges on the living, a Court of 
 Equity cannot, without giving its aid to simony, at the suit of the 
 
 (1) Dean v. Bennett, 19 W. E. 363 ; (4) Potter v. Chapman, Dick. 146, 
 
 18 W. E. 487 ; 24 L. T. (N. S.) 169 ; Amb. 98. 
 
 L. E. 6 Ch. 489 ; 40 L. J. (Cli.) 452 ; (5) Daiy v. Archbishop of Dublin, 
 
 19 W. E. 363. PI. & K. 263. 
 
 (2) Cardinall v. Molyneux, 4 De G. (6) Nicholson v. Knapp, 9 Sim. 326. 
 F. & J. 117; 7 Jur. (N. S.) 854; (7) /en;tins, 7»re,L.E. 2 P.C.258; 
 4 L. T. (N. S.) 605. 38 L. J. (P. C.) 6; 19 L. T. (N. S.) 
 
 (3) Oreenslade v. Dare, 17 Beav. 583 ; 17 W. E. 502. 
 502- 
 
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ECCLESIASTICAL MATTERS, BURIAL GROUNDS. 305 
 
 first mortgagee, give effect to it, by granting an injunction and a Part II. 
 
 receiver to restrain the other judgment creditors from recovering 1 
 
 from a sequestrator, under a sequestration issued by puisne mort- 
 gagees, the money in the sequestrator's hands ( I). 
 
 6. , The Court will not grant an injunction to restrain a judgment 
 creditor from proceeding in an action to recover his debt, under 
 which he has obtained a judgment, in virtue of which the tithes 
 and profits of a vicarage are sequestered ; the matter is one exclu- 
 sively for the Court of Common Law out of which the execution 
 has issued (2). 
 
 7. The Court will restrain the enforcing of sequestrations by 
 parties having annuities charged on rectories and a vicarage 
 alleging themselves to be prior to the plaintiffs, also having such 
 charges (3). So it will appoint a receiver at the instance of a 
 second incumbrancer on a rectory, where a third incumbrancer has 
 obtained a sequestration, and will ascertain the priorities of the 
 incumbrancers, and direct the payment of what is due, according 
 to the priorities (4). 
 
 8. A Court of Equity will stay the proceedings of a plaintiff, 
 mortgagee of a manor with an advowson appendent pending a 
 foreclosure suit, in a quare impedit, for the mortgagee can make no 
 profit by presenting to the church, and the mortgagee, until a fore- 
 closure, is but in the nature of a trustee for the mortgagor, and the 
 mortgagor shall present unless foreclosed (5). 
 
 9. Immemorial use and occupation, coupled with reparation, 
 entitle the lord of a manor by prescription, to the perpetual and 
 exclusive use of a chancel appendant to a manor or manor-house, 
 and the Court will not restrain actions for trespass to protect that 
 right (6). 
 
 10. A Court of Equity has jurisdiction, at the suit of the 
 churchwardens of a parish, to restrain a person from pulling down 
 
 (1) Long V. Storie, 3 De G. & Sm. 3 Sw. 109. 
 
 308. (5) Amhurst v. Bawling, 2 Vera. 
 
 (2) Williams v. Ivimey, 23 L. T. 401; et vide Att.-Oen. v. EesJcefh, 2 
 (N. S.) 100. Vern. 548. 
 
 (3) Silver v. Bishop of Norwich, (6) Ghurton v. Frewen, L. R. 2 Bq. 
 3Sw. 112. 634; 12 Jur. (N. S.) 879; 35 L. J. 
 
 (4) White V. Bishop of Peterborough, (Oh.) 692 ; 14 L. T. (N. S.) 846. 
 
 X 
 
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306 EPCLESIASTICAL MATTERS, BUEIAL GEOTJNDS. 
 
 Part II. the churchyard wall, though in assertion of an alleged right of 
 Chapter VI •/ o o o 
 L way, because though the churchwardens might not be able to 
 
 maintain an action at Law for such trespass, they might hare 
 
 redress in the Ecclesiastical Court, and a Court of Equity ought, 
 
 in such a case, to be ancillary to the Ecclesiastical Court, and to 
 
 grant an injunction as in other cases where any act in the nature 
 
 of waste is threatened or committed (1). 
 
 11. Persons who have purchased family graves in perpetuity, in 
 
 a private burial ground attached to a dissenters' chapel closed by 
 
 an order of the Queen in Council (2), are entitled to an injunction 
 
 to restrain the trustees from removing, obliterating, or defacing 
 
 the graves or gravestones, or monuments belonging to them, and 
 
 from applying the ground to other purposes (3). So where land 
 
 has been set apart as a burial ground, in which burial places graves 
 
 and vaults have been purchased in perpetuity, a Court of Equity 
 
 will restrain the holders of the legal estate, though claiming as 
 
 mortgagees, from destroying or defacing the graves, or doing any 
 
 act which may prevent future interments, or from applying the 
 
 ground purchased to any other purposes than those of burial (4). 
 
 If there has been a legal appropriation of ground, as a dedication 
 
 of the land to public and pious uses within the doctrines of the 
 
 Statute of Elizabeth relating to charities, a Court of Equity will 
 
 restrain the dispossession of the trustees of the property, and the 
 
 removal of the tombstones and graves (5). No action at Law 
 
 would afford an adequate and complete remedy. Such a case is 
 
 not one of a mere private trespass, but a public nuisance going to 
 
 the irreparable injury of the congregation for whose sole use and 
 
 benefit the land has been ' so laid out and dedicated. To permit 
 
 such conduct would be to allow the property consecrated to their 
 
 use by a perpetual servitude or easement to be taken from them, the 
 
 sepulchres of the dead to be violated, the feelings of religion, and 
 
 the sentiment of natural affection of the kindred and friends of 
 
 the deceased to be wounded, and the memorials erected by piety 
 
 (1) Marriott v. Tarpley, 9 Sim. (N. S.) 1189 ; 25 L. J. (Ch.) 883; 26 
 279. L. J. (Oh.) 690. 
 
 (2) See 15 & 16 Vict. c. 85. (4) lb. 
 
 (3) Moreland v. Richarrison, 22 (5) Beatty v. Kwrtz, 2 Pet. 566, 579, 
 Beav. 596 ; 2 Jur. (N. S.) 726 ; 3 Jur. 581, 584 (Amr.). 
 
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ECCLESIASTICAL MATTERS, BURIAL GROUNDS. ,307 
 
 or love to the memory of the good, to be removed, so as to leave Part II. 
 no trace of the last home of their ancestry to those who may ' 
 
 visit the spot in future generations. It cannot be that such acts 
 are to be redressed by the ordinary process of Law. The remedy 
 must be sought, if at all, in the protecting power of a Court 
 of Chancery, operating by its injunction to preserve the repose 
 of the ashes of the dead, and the religious sensibilities of the 
 living (1). 
 
 (I) Beatty v. Kurtz, 2 Pet. 566, 579, 581, 584 (Amr,). 
 
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( 308 ) 
 
 CHA.PTBK VII. 
 
 The Doctrines and Principles as Applicable to Companies 
 (Eailwat and other Public Companies). 
 
 Pakt II. Sect. 1. Railway Companies. 
 
 1. It is not settled to what extent, or subject to what particular 
 limitations, the jurisdiction of a Court of Equity ought to be 
 exercised in preventing or checking the erroneous conduct of 
 corporations created by Act of Parliament for public purposes ; 
 but the classes of cases in which such a Court has often been 
 called on to interfere are those which arise out of a combination 
 of — first, acts in themselves illegal, considered as breaches of 
 contract with the public ; secondly, acts which are breaches 
 of contract, express or implied, with the subscribers to the under- 
 taking ; and, thirdly, acts erroneous, or breaches of contract 
 incapable of being rectified by the shareholders themselves, in 
 the exercise of their own powers ; and it is necessary in such cases, 
 to distinguish betweea the duty of the governing body to the 
 public and their duty to the shareholders (1). 
 
 2. Parties injured by the conduct of a railway company, in 
 exceeding the powers conferred upon them by Act of Parliament, 
 are entitled to the most effectual remedy within the power of a 
 Court of Equity (2). 
 
 3. A Court of Equity will not construe the compulsory powers 
 of a railway company so as to extend them beyond the express 
 words, or .the absolutely necessary implication, of their Act ; it 
 being the duty of the company to take care that the public 
 understand, before the Act is passed, the extent of the compulsory 
 powers which they require (3). 
 
 (1) Browne v. Monmouthshire Rail- (3) Lamh v. North London RaUw. 
 way and Canal Co., 13 Beav. 32. Co., L. E. 4 Ch. 522; 21 L. T. (N. S.) 
 
 (2) Spencer V, London and Birming- 98; 17 W. E. 746. 
 ham Bailw. Co., 1 Eailw. Cas. 159. 
 
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RAILWAY COMPANIES. 309 
 
 4, An agreement to withdraw or withhold opposition to a bill Pabt il. 
 in Parliament is not illegal ; and a Court of Equity will enforce seot. i. 
 a contract founded on such a consideration, and will restrain a 
 railway company from violating provisions omitted from their 
 bill, but by the projectors of the company agreed to be executed 
 after the incorporation of the company (1). The question in 
 such cases is, not whether there were any binding contract at 
 Law, but whether a Court of Equity would permit a company to 
 use their powers under their Act, in direct opposition to an 
 arrangement made with a party prior to the Act, upon the faith 
 of which the company were permitted to obtain such powers. 
 If the company and the projectors cannot be identified, still if it 
 is clear that the company succeed to, and are in possession of all 
 that the projectors had before, they are entitled to all their rights 
 and subject to all their liabilities. And if any one individually 
 projects such a scheme, and in prosecution of it, enters into 
 arrangements, and then sells and assigns all his interest in it to 
 another, there will be no legal obligation between those, who 
 dealt with the original projector and such purchaser; but in a 
 Court of Equity it is otherwise. And a company, standing in 
 the place of the projectors, cannot repudiate arrangements into 
 which such projectors have entered ; they cannot exercise the 
 powers given by Parliament to such projectors in their corporate 
 capacity, and at the same time refuse to comply with those terms, 
 upon the faith of which, all opposition to their obtaining such 
 powers was withheld (2). An agreement by a landowner, being 
 a peer of Parliament, for certain personal advantages — as, for 
 instance, that all trains should stop at a particular station — in 
 consideration of withdrawing his opposition to the bill of the pro- 
 jectors, and endeavouring to prevent the bill of a rival company 
 from passing into Law, is legal, and will be enforced in Equity at 
 the suit of the peer ; and the Court will restrain a violation of 
 the agreement (3). A company substituted by an arrangement 
 
 (1) Edwards v. OraTid Junction 17 Jur. 522 ; 22 L. J. (Ch.) 995 ; vide 
 Bailw. Co., 1 My. & Or. 650; 7 Sim. Simpson v. lord Howden, 1 Bailw. 
 337 ; 6 L. J. (N. S.) Ch. 47. Gas. 326, 338, 347 ; 1 Keen, 583 ; Fetre 
 
 (2) lb. (Lord) v. Eastern Counties Bailw. Co., 
 
 (3) Lindsey (Earl of) v. Great Nor- 1 Bailw. Cas. 462 ; Edwards v. Grand 
 them Bailw. Co., 10 Hare, 664, 679 ; Junction Bailw. Co., 1 My. & Cr. 650. 
 
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310 EAILWAY COMPANIES. 
 
 Part II. as a (Jefendant to an action by a landowner, originally against 
 Sect. 1. ' *'^® chairman of the provisional committee, for a Tiolation of ah 
 agreement by him to take lands upon certfiin terms, in considera- 
 tion of the landowner withdrawing his opposition in Parliament 
 to the proposed bill ; thereby adopts the agreement, and a Court 
 of Equity will restrain the company from proceeding with their 
 railway in default of performing the agreement (1). So the Court 
 will restrain a railway company from assessing the value of land 
 upon a notice to treat, if the committee of subscribers applying 
 for the Act has agreed with a peer and landowner for the pay- 
 ment of a given sum before entering his land, in consideration 
 of his withholding opposition to the bill (2). 
 
 5. Although a Court of Equity will, in a proper case, exercise 
 its jurisdiction by injunction, touching proceeding in Parliament 
 for a private bill, or a bill respecting property, yet it has no 
 power to interfere to deprive a party of the right of applying to 
 Parliament for a special law to supersede the laws of property 
 by which he finds himself bound, whether arising from contract 
 or otherwise (3). But although it is clear that a Court of Equity, 
 by means of its jurisdiction in personam, has, in a proper case, 
 power to restrain any persons from mailing an improper and 
 unauthorized application to Parliament for a private Act, yet it 
 is difficult to conceive or define what are the cases in which it 
 would be proper for the Court to exercise that power ; and in no 
 case which has yet come before a Court of Equity has such an 
 injunction been granted (4). 
 
 6. A Court of Equity will restrain a railway company from 
 building in violation of a covenant, notwithstanding they, subse- 
 quently to entering into the covenant, obtain an Act empowering 
 them to do that which would be a violation of the covenant (5), 
 
 (1) Williams v. St. George's Ear- (4) Sartridge, Ex parte, London, 
 lour Co., 2 De G. & J. 547 ; 24 Beav. Chatham, and Dover Bailw. Co., Ex 
 339 ; 4 Jur. (N. S.) 1066 ; 27 L. J. parte, 17 W. B. 946 ; 20 L. T. (N. S.), 
 (Ch.) 691. 718 ; et vide Steele v. North Metro- 
 
 (2) Petre (Lord) v. Eastern Coun- politan Bailw. Co., L. E. 2 Ch. 237. 
 ties Railw. Co., 1 Eailw. Cas. 462. (5) Lloyd v. London, Chatham, aid 
 
 (3) Eeatheote v. Sorth'' Staffordshire Dover Bailw. Co., 11 Jur. 0. S.) 380; 
 Bailw. Co., 2 Mac. & G. 100 ; 2 H. & 2 De G. J. & S. 568, 579. 
 
 T. 382 ; 6 Eailw. Cas. 358. 
 
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RAILWAY COMPANIES. 311 
 
 And such a covenant being a valid covenant at Law, if the other Pabt ii. 
 circumstances of the case be such that a Court of Equity would "seot" i. " 
 enforce the covenant independently of the particular public import- 
 ance or public policy which attaches to the question, such a Court 
 ought not to be prevented by considerations of public policy 
 from proceeding to enforce it (1). 
 
 7. Although the conduct of a company is a violation of an 
 undertaking entered into by them with the Court, there is no 
 jurisdiction in the Court to restrain the company from further 
 soliciting a bill in Parliament, which is, in effect, a violation of 
 such undertaking ; such a bill, when entertained by the House 
 of Commons, becomes the proceeding of the Legislature, and not 
 of the company (2). 
 
 8. The directors of a railway company are not justified in 
 acting on an old resolution authorizing the issuing of shares, after 
 the particular purpose for which the authority was given has 
 ceased to be available ; nor in issuing shares, supposing them to 
 have the power, for the express purpose of creating votes to in- 
 fluence a coming general meeting ; and a Court of Equity will 
 restrain the issue. Such a question is not one of internal manage- 
 ment of the company, but an attempt on the part of the directors 
 to prevent such management from being legitimately carried 
 on (3). So a railway company will be restrained from defraying 
 the expenses of an application to Parliament, out of the assets of 
 the company, and from issuing new shares purporting to be shares 
 in the company, except for the purposes and under the powers 
 of the existing Acts of the company (4). 
 
 9. If directors of a railway company, the borrowing powers of 
 which have been fully exercised, procure advances on their own 
 personal security, within the limits of the capital of the company, 
 and apply the same in completion of the undertaking, and the 
 company at a general meeting sanction these proceedings ; a Court 
 of Equity will not restrain the repayment of the amount advanced 
 
 (!_) Lloyd V. London, Chatham, and (3) Fraser v. Whattey, Oartside v. 
 
 Bcmer Sailw. Co., 11 Jur. (N. S.) 380 ; Whalley, 2 H. & M. 10. 
 
 2 De Gr. J. & S. 568, 579. (4) Vance v. East Lancashire Eailw. 
 
 (2) Att.-Oen. v. Manchester and Co., 3 K. & J. 50. 
 Leeds Bailw. Go., 1 Eailw. Cas. 436. 
 
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312 RAILWAY COMPANIES. 
 
 Part II. by directors, out of the profits of the company, in priority to 
 Sect. 1. ' preference shareholders (1). 
 
 10. The issue (after exhausting their parliamentary powers) 
 by a railway company of bonds known as Lloyd's — namely, an 
 acknowledgment of a debt, and a covenant to pay at a future day— 
 to a contractor for work done, and to persons supplying a parlia- 
 mentary deposit for the purpose of obtaining an Act to enable 
 the company to raise further share and loan capital, will not be 
 restrained after the employment of the money bond fide and 
 successfully for those purposes (2). 
 
 11. It is sufficient to entitle a railway company to take lands, 
 if they are within the limits of deviation delineated on the plan ; 
 the particular works need not appear on the deposited plans (3). A 
 Court of Equity will restrain a railway company from taking pos- 
 session of land until a proper valuation has been made and a 
 proper bond, under the 85th section of the Lands Clauses Consoli- 
 dation Act, to secure the payment of the purchase-money or 
 compensation has been given, or a jury has given its verdict and 
 the money deposited (4). 
 
 12. If a railway company give notice to treat for the purchase 
 of a portion of a piece of land, and the owner give a counter notice 
 to take the whole, the Court will restrain the company from taking 
 any proceedings to entitle themselves to a part of the premises 
 without taking the whole (5). 
 
 13. So under sect. 92 of the Lands Clauses Consohdation Act 
 (8 Vict. c. 18) a landlord shall not be compelled to sell a part of 
 his house, if before the company began to exercise their compul- 
 sory powers, he gives them notice to take the whole (6). And if a 
 
 (1) Ulster Railw. Co. v. Banhridge, Co., 1 H. & M. 543 ; et vide Eogers v. 
 Lishurn, and Belfast Eailw. Co., 2 Ir. Etdl Dock Co., 10 Jur. (N. S ) 1245 ; 
 Bep. Eq. 190 ; 18 L. T. (N . S.) 91 ; 34 L. J. (Oh.) 165 ; 12 W. K. 1101 ; 
 16 W. E. 598. 13 W. E. 217. 
 
 (2) White V. Carmarthen and Car- (5) Mason v. London, Chatham, and 
 <. Co., 1 H. & M. 786; 33 Dover Railway Co., L. E. 7 Eq. 546 ; 
 
 L. J. (Ch.) 93 ; 12 W. E. 68. 38 L. J. (Ch.) 371 ; 20 L. T. (N. S.) 
 
 (3) Wild V. South Western Railw. 773 ; vide Alexander v. Crystal Palm 
 Co., 32 Beav. 321. Co., 30 Beav. 556 ; 31 L. J. (Oh.) 5C0 ; 
 
 (4) Cotter v. Metropolitan Railw. 8 Jur. (N. S.) 833. 
 
 Co., 10 Jur. (N. S.) 1014; 12 W. E. (6) Gardnerv. Charing CrossRailvi. 
 
 1021 ; Sweetman y . Metropolitan Railw. Co., 2 J. & H. 248 ; 10 W. E. 120. 
 
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RAILWAY COMPANIES. 313 
 
 railway which has given notice to take a part of a house or factory, Part ii. 
 is required to take the whole, it will be restrained from taking ^'sm. l. 
 
 possession of the part it requires, until it pays into the Bank, under 
 
 sect. 85 of the same Act, the value of the whole, which it is re- 
 quired to take (1). If a company has given notice to take part 
 of a manufactory, and is required to take the whole, it cannot 
 escape from the necessity of so doing, by changing its plan (2). A 
 Court of Equity will enforce a verbal agreement to take the whole 
 of the property by a railway company which, previously to the 
 agreement, gives notice to take part, and after the agreement, 
 takes compulsory possession of the part, and will restrain the com- 
 pany from so doing, and compel it to take the whole (3). But it 
 would seem that a landowner, part of whose house, within the 
 meaning of 8 Vict. c. 18, s. 92, is taken by a railway company, 
 cannot compel the company to take any portion beyond what it 
 requires, less than the whole (4). 
 
 14. Compulsory powers to take land are given to railway com- 
 panies, and must be exercised for the sole purpose of constructing 
 the railway and works ; therefore if a railway company endeavour, 
 by means of their compulsory powers, to construct a road, so as to 
 accomplish a subsidiary object, it will be restrained at the instance 
 of the landowner whose property would be affected, though the 
 proposed works are within the scope of its Act (5). 
 
 15, It is clear that when the Legislature authorizes a railway 
 company to take for the purposes of their undertaking, any lands 
 specially described in their Act, it constitutes them the sole judges 
 as to whether they will or will not take those lands, provided they 
 take them londjide, with the object of using them for the purposes 
 authorized by the Legislature, and not for any sinister or collateral 
 purpose (6). 
 
 (1) Giles V. London, Chatham, and 8 L- T. (N. S.) 161. 
 
 Dover RaUw. Co., 1 Dr. & Sm. 40; W Pulling v. London,Chatham,and 
 
 Underwood v. Bedford and Cambridge Dover Railw. Co., 10 Jur. (N. S.) 665 ; 
 
 Eailw. Co., iJadson, v. East Kent Railw. 33 L. J. (Ch.) 505. 
 
 Co., 7 Jur. (N. S.) 941. (5) Oodd v. Salisbury and Yeovil 
 
 (2) Sparrow v. Oxford, Worcester, Railw. Co., 1 Giff. 158 ; 5 Jur. (N. S.) 
 and Wolverhampton Railw. Co., 2 De 782 ; 33 L. T. 311. 
 
 G. M. & G. 94. (6) Stockton v. Darlington Railw. 
 
 (3) Binney v. Hammersmith and Co., 9 H. L. C. 2*46; 6 Jur. (N. S.) 
 City Railw. Co., 9 Jur. (N. S.) 773; 1168 ; 8 W. R 708. 
 
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314 EAILWAY COMPANIES. 
 
 Pakt II. 16. If a railway company has acquired a legal right to and pos- 
 
 Seot. 1. " session of land, and has constructed their railway over the same 
 '- under the provisions of their Act, a Court of Equity will restrain 
 
 another railway company, to whom the Legislature has given 
 power to purchase the same land for the purposes of their under- 
 taking, from exercising such power pending the trial of the legal 
 question of the effect of such conflicting powers (1). 
 
 17. If a railway company take possession of land under a mis- 
 apprehension that a tenant for life is owner in fee, a Court of 
 Equity will restrain the company from retaining possession of 
 the land, until compensation has been made to every person 
 having an interest in the lands ; and that, although they have 
 constructed the railway on the lands (2). It is conceived that it 
 is contrary to the provisions of the Lands Clauses Consolida- 
 tion Act, 1845, that a company should take possession of the land 
 until it has settled with everybody, and not merely with the 
 tenants (3). But if a railway company has given notice to a 
 tenant at will in possession, apparently as owner, a purchaser of 
 part of the land subsequently to the notice cannot obtain an in- 
 junction to restrain the company from continuing in possession ; 
 the purchaser in such a case had no interest in the property at the 
 time of the notice, and is but the purchaser of an interest in the 
 purchase-money, but is not entitled to an injunction (4). 
 
 18. When a railway company has given notice to take land for 
 some object which is clearly within its compulsory powers, a Court 
 of Equity will not interfere to restrain it, merely on the ground 
 that it might obtain the same object in some other way, without 
 taking the land (5). 
 
 19. A Court of Equity will not interfere with the possession of 
 .a company where they have given the usual notice to a lessee, and 
 have obtained a conveyance from parties who claimed as owners 
 of the property, but will direct an inquiry as to title of subsequent 
 
 (1) Manchester, Sheffield, and Lin- 3 De G. M. & G. 6f)8. 
 
 colnshire Railw. Co. v. Oreat Northern (4) Carnochan v. Norwich and 
 
 Bailw. Co., 9 Hare, 284. Spalding Railw. Co., 26 Beav. 169. 
 
 (2) Perhs v. Wycomhe Bailw. Co., (5) Lamh v. North London Bailw. 
 3 Giff. 662 ; 8 Jur. (N. S.) 1051. Co., L. E. 4 Ch. 522 ; 21 L. T. (N. S.) 
 
 (3) Inge v. Birmingham, Wolver- 98 ; 17 W. E. 746. 
 hampton, and Stour Valley Bailw. Co., 
 
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RAILWAY COMPANIES. 315 
 
 new claimants (1). If a railway company has paid part of the Part II. 
 
 1, i^ A • J V +1, u ^1 • Chapter VII. 
 
 pm-cnase-money of land required by them it may take possession, Sbot. i. 
 
 and retain the balance until the vendor makes a good title ; for 
 the company, by this part payment, purchases the right of pos- 
 session, and will not be restrained from retaining possession, nor 
 ordered to pay the balance into Court (2). And if a railway com- 
 pany having constructed its railway without authority from the 
 owner of the land, afterwards use it for several years — as for in- 
 stance fifteen — with the knowledge of the owner, he will not be 
 permitted to interfere with the possession ; for after acquiescence 
 on the one hand and undisturbed enjoyment on the other for 
 several years, the possession will not be disturbed, but a proper 
 compensation will be assessed and paid (3). 
 
 20. So the owner of land upon which a railway company em- 
 powered by Parliament are about to enter under their parliamen- 
 tary powers, is not entitled to an interlocutory injunction to 
 restrain them from so entering and taking proceedings in respect 
 of his land under the powers of their Act, if, by his silence and 
 conduct, he has permitted the company to carry on their works 
 upon the supposition that they were entitled to enter on and take 
 the land in question (4). 
 
 21. If a railway company put another railway company into 
 possession, and allow that company to remain in possession for 
 several years undisturbed, the first company will be restrained 
 from disturbing the possession of the latter, though the stipu- 
 lation (the consideration) has not been performed by the latter 
 company (5). 
 
 22. A Court of Equity will restrain proceedings to assess com- 
 pensation under the 68th section of the Lands Clauses Consolida- 
 tion Act by some of the parties claiming an interest in the land, 
 until the rights of all the parties claiming an interest have been 
 ascertained and are no longer doubtful (6). 
 
 (1) Alstons. Eastern Counties Hailw (4) Greenhalgh v. Manchester and, 
 Co., 1 Jur. (N. S.) 1009. Birmingham Railw. Co., 3 My. & Cr. 
 
 (2) Capj)s V. Norwich and Spalding 784 ; 9 Sim. 614. 
 
 Railw. Co., 9 Jur. (N. S.) 365; 11 (5) Great Northern Bailw. Co. v. 
 
 W. R. 657. Lancashire and Yorkshire Railw. Co., 
 
 (3) Mold V. Wheatcrofl, 27 Beav. 1 Sm. & Giff. 181. 
 
 510. (6) South Western Railw. Co. v. 
 
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316 RAILWAY COMPANIES. 
 
 Part II. 23. There is no equity to restrain the owners of a railroad be- 
 
 °Sect?i. ' I'^iigi'ig to ^ private company, made over an owner's land, from 
 ~ using the railroad after it has been completed, where the possession 
 of the land for the purpose of constructing the railroad has been 
 obtained from a tenant in possession. What is claimed by the 
 company in such a case is simply a right of way, and if they are 
 not entitled to that right they are mere trespassers, and the owner 
 has his proper remedy against the company as such (1). 
 
 24. Although a Court of Equity will restrain one tenant in 
 common from the wilful destruction of the common property held 
 by tenants in common, and enjoyed in conformity with the 
 common rights of the tenants in common ; yet, where a railroad 
 company has obtained a lease from five out of six tenants in 
 common, and has, contrary to the wishes of the remaining tenant 
 in common, constructed a railroad on the property, the Court 
 will interfere by injunction to prevent the dissenting tenant in 
 common from damaging the buildings and railway (2). 
 
 25. A Court of Equity will restrain a railway company from 
 taking any proceedings for obtaining possession of land in the 
 possession of a receiver of the Court (3). 
 
 26. It is generally incumbent on a railway company seeking to 
 avail themselves of the provisions of the 85th section of the Land 
 Clauses Consolidation Act, 1845, to shew satisfactorily and clearly 
 that they have fulfilled its conditions and complied with its re- 
 quisitions, and if there is room for doubt, the landed proprietor 
 should have the benefit of the doubt (4). And if the form of the 
 bond under the 85th section of that Act is defective, or is for a 
 less quantity of land than the lands comprised in the original 
 notice of the company, the Court will restrain the company from 
 entering upon any of the lands (5). And if a railway company, 
 
 Coward, 5 Eailw. Cas. 703 ; 1 H. & T. (4) Barker v. North Staffordshire 
 
 377, n. ; ef vide Norwich Bailw. Co. v. Eailw. Co., 2 De G. & Sm. 65 ; 5 
 
 Woodhouse, 11 Beav. 382; S. 0. sub Eailw. Cas. 412; 12 Jur. 324, 575, 
 
 nom. Norfolk Bailw. Co. v. Bayes, 13 589. 
 Jur. 435. (5) Barker v. NoHh Staffordshire 
 
 (1) Deere v. Quest, 1 Myl.&Cr.516. Bailw. Co.,supra; et videPoynderv. 
 
 (2) Durham and Sunderland Bailw. Great Northern Bailw. Co., 2 Ph. 330 ; 
 Co. V. Wawn, 3 Beav. 119. 5 Eailw. Cas. 196, 201 ; 16 Sim. 3. 
 
 (3) Tink v. Bundle, 10 Beav. 318. 
 
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; RAILWAY COMPANIES. ' 317 
 
 having served notice to treat with the owner of land under 8 Vict. Pabt II. 
 e. 18, has been furnished with the title and a claim of a given ^eot?i. 
 sum as compensation, obtain possession from the occupying tenant, 
 and commence the works, without paying the money or lodging it 
 in Court, and giving the security required by the Act, the Court 
 will grant an injunction against the company's proceeding with 
 the works, and to compel it to restore the land to its former con- 
 dition, unless the company undertake to lodge the sum claimed 
 and give the bond required (1). 
 
 27. When the power of fully completing a railway, according 
 to the intention of the Legislature, depends on the voluntary con- 
 sent of individuals having property on the proposed line, such 
 consent ought to be obtained by the company before they proceed 
 in the undertaking (2). If the promoters of a railway company, 
 previously to obtaining the Act of the company have agreed with 
 the lessees of houses and wharves upon the property purchased 
 by the promoters from their lessors, to give them compensation 
 for the value of their leasehold interests, or for damage sustained 
 by them in respect of fixtures and improvements, or otherwise by 
 the execution of the Act, on the lessees giving notice within a 
 limited time, and the company give the lessees notice to deter- 
 mine their tenancies, the Court will not permit the company to 
 exercise their legal rights on the face of such an agreement ; and 
 will, upon such notice by the lessees to sell, restrain an act of 
 ejectment by the company until the amount of the purchase- 
 money is ascertained and paid ; for upon the moment of that 
 notice the relation of vendor and purchaser commenced between 
 the lessees and the company (3). 
 
 28. A company treating with a mortgagor alone, with notice of 
 the mortgage, will be restrained from proceeding with their works 
 until the value of the mortgagee's interest has been ascrtained 
 and paid, or secured (4). 
 
 29. Notice given to a landowner by a railway company of their 
 
 (1) Armstrong v. Waterford and (3) Doo v. Croydon Eailw. Co., 1 
 Limerick Eailw. Co., 10 Ir. Eq. Eep. Eailw. Cas. 257 ; 8 L. J. (N. S.) Ch. 
 60. 200; 3 Jur. 258. 
 
 (2) Qray v. Liverpool and Bury (4) Banken v. East and West India 
 Sailw. Co., 9 Beav. 391 ; 4 Eailw. Locks and Birmingham Junction, 
 Cas. 235. Bailw. Co., 12 Beav. 298. 
 
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318 BAILWAY COMPANIES. 
 
 Part II. intention to summon a iury, does not render it inequitable for 
 Chapter VII J •" ^ ^ 
 
 Sect. 1. ' them to proceed in the meantime, under the 8 Vict. c. 18, s. 8S, 
 
 to obtain possession (1). 
 
 30. If, before the amount to be paid by a railway company for 
 land required by them for the purposes of their railway has been 
 determined, a verbal consent, whether qualified or general, has been 
 given, whereupon the company has entered upon the land and has 
 commenced works which permanently affect it ; a Court of Equity 
 will not interfere by injunction to stop the works, if perfect justice 
 can be done by compelling the company to pay for the land (2). 
 
 31. Though a railway company has entered lands without notice 
 or permission, yet if it appear that there had been a disposition 
 to treat on the part of the owner, and that the steps taken were 
 •necessary for the public safety ; on the company undertaking t» 
 pay into Court the probable value of the land taken, it will not 
 grant an injunction against the company (3). A subsequent 
 treating with a railway company will be considered by a Court of 
 Equity as a waiver of objections to proceedings, the subject of the 
 treaty, although such proceedings be not, in fact, authorized by 
 the Kailway Act (4). 
 
 32. If a railway company acting hond fide has made a mistake 
 as to the lands they have valued and taken possession of, and the 
 question between the company and the landowner is merely one 
 of value, a Court of Equity will not grant an injunction to stay' 
 the works on the property taken ; in such cases the Court has 
 regard to the injury which may be done to the public (5). 
 
 33. The owner of a small part of land, the rest of which has 
 been taken by a railway company, is entitled to an injunction to 
 restrain the disturbance by the company of his possession, into 
 which he has been put in an action of ejectment by him against 
 the company (6). The defendants still continuing to run their 
 
 (1) Langham, v. Oreat Northern Railw. Co., 3 Eailw. Gas. 374. 
 Eailw. Co., 1 De G. «& Sm. 486 ; 5 (4) lb. 
 
 Railw. Gas. 269. (5) Wood v. Charing Cross Bailw. 
 
 (2) Langford v. Brighton, Lewes, Co., 33 Beav. 290. 
 
 and Eastings Eailw. Co., 4 Railw. (6) Stretton v. Oreat Western and 
 
 Gas. 69 ; see also Cromford Canal Co. Brentford Bailw. Co., L. E. 5 Ch. 751 ; 
 
 V. Cutts, 4 Eailw. Gas. 442. 18 W. R. 1078 ; 23 L. T. (N. S.) 379; 
 
 (3) Tower v. Eastern Counties 40 L. J. (Ch.) 50. 
 
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RAILWAY COMPANIES. 319 
 
 trains oyer the land, by such conduct sets all law at defiance. „ ^^™ ii- 
 „„ . , . . . , p ., Ohapteb VII. 
 
 Of course, in sucn cases, an injunction as to the user of a railway Seot. i. 
 
 is a serious matter. But with regard to. public interests, the 
 Court is not inclined to listen to any suggestions of public interest 
 as against private rights acquired in a lawful manner ; nor does it 
 think that the interest of the public in using something that is 
 provided for their convenience, is to be upheld at the price of 
 saying that property is to be confiscated for that purpose. A man 
 who comes to a Court of Equity is entitled to have his rights 
 ascertained and enforced, however inconvenient it may be to 
 third persons, to. whom the use of his property may be very 
 convenient (1). 
 
 34. A Court of Equity has not jurisdrction to decree the specific 
 performance of a contract, for which the consideration on the part 
 of the plaintiff, is the execution of certain works which the Court 
 is unable to superintend (2) ; and therefore, in such a case, it will 
 not restrain a railway company from permitting any other person 
 except the plaintiff from constructing the railway (3). So if an 
 agreement involve personal service, and as such, is one of which the 
 Court will not grant a decree for specific performance, it will 
 not interfere by injunction to restrain a company from deter- 
 mining the agreement (4). The power given to a Court of Law 
 by the 17 & 18 Vict. c. 31 (" The Eailway and Canal Traffic 
 Act") (5), to grant a preventive remedy, does not, by giving a 
 concurrent jurisdiction, abridge the jurisdiction of the Court of 
 Chancery ; and that Court will, notwithstanding that Act, enter- 
 tain a bill to enforce the performance of an agreement as to the 
 carriage of goods (6). 
 
 (1) Stretton v. Gfeat Western and Co., 5 L. T. (N. S.) 601. 
 
 Bradford Bailw. Go., L. B. 5 Ch. 751 ; (5) " The Eegulation of Railways 
 
 18 W. E. 1078; 23 L. T. (N. S.) 379; Act, 1873" (36 & 37 Vict. c. 48), 
 
 40 L. J. Ch. 50. transfers to the Commissioners ap- 
 
 (2) Peto V. Brighton, Uchfield, and pointed thereby, the jurisdiction con- 
 Tunhridge Wells Bailw. Go., 1 H. & ferred upon certain Courts by the 17 & 
 M. 468 ; 32 L. J. (Ch.) 677. 18 Vict. c. 31. 
 
 (3) lb. (6) Baxendale v. West Midland 
 (i) Eorne v. Lmdon and North Bailw. Co.,3 QiB. 650; T L.T.QH.S.) 
 
 Western Bailw. Co., 10 W. E. 170 ; et 297. 
 vide GhapKn v. North Western Bailw. 
 
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320 RAILWAY COMPANIES. 
 
 Part II. 35. A Court of Equity will interfere by mandatory injunction 
 
 Sect. 1. to compel specific performance of a contract against a railway 
 
 company, though works (at variance with the agreement) are 
 
 already erected ; and the company cannot set up the inconvenience 
 
 to the public by interference with the traffic (1). 
 
 36. Where the Court considers that time has originally been 
 made of the essence of a contract or special agreement for making 
 crossings, and there is no sufficient evidence of any agreement 
 to enlarge the time, or that it has been waived by the conduct of 
 the agents of the company, it will refuse specific performance 
 of the works (2). And if the parties also agreed to leave matters 
 to the discretion of the surveyor of the landowner, the Court has 
 no power to substitute its own discretion for that of the surveyor, 
 so as to order the construction of works, though such might 
 appear to be necessary and proper (3). And where a person has 
 made a special agreement as to crossings on a line of railway 
 running through his land, if, from particular circumstances, that 
 agreement is not carried into effect, he cannot, on the ground of 
 any general rights, claim to have any other crossings made 
 according to the discretion of the Court; for that would be 
 to get the Court to substitute a new agreement, not to enforce 
 the performance of the original ; nor can a person who has made 
 a special agreement as to crossings on a line of railway, and who, 
 from particular circumstances, allows that agreement to fall 
 through, afterwards set up general rights under the Eailway Acts 
 to have other crossings made (4). 
 
 37. If a railway company, the promoters of which have entered 
 into an agreement to purchase, proceed under their Act, under 
 the compulsory powers of the Lands Clauses Consolidation Act, 
 they have, by resorting to the remedies under that Act, although 
 the agreement might have been binding on the owner of the land, 
 waived their remedy for specific performance ; and the Court will 
 
 (1) Raphael Y. ThamesValley Eailw. Chatham, and Dover BaUw. Co., 9 
 Co., L. R. 2 Ch. 147 ; L. R. 2 Eq. 37 ; Jur. (N. S.) 148 ; 33 L. J. (Oh.) 9. 
 12 Jur. (N. S.) 656; 35 L. J. (Ch.) (3) Dwndey v. Lmion, Chatham, 
 659 ; 36 L. J. (Cb.) 209 ; 15 W. R. and Dover Bailw. Co., 11 Jur. (N. S.) 
 322. 520; L. R. 2H. L. 43. 
 
 (2) Darnley (Earl) v. London, (4) lb. 
 
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BAIL WAY COMPANIES. 321 
 
 tiot grant an injunction to restrain the owner from taking pro- Pabt II. 
 ceediags under that Act, for assessing the value except upon the ° g™"^ i. ' 
 footing of the agreement (1). ~ 
 
 38. If a railway company which has agreed to take certain lands 
 at a specific sum for compensation, is let into possession, and has 
 constructed its line over the lands, giving a bond for payment of 
 the purchase-money on a future day, make default in payment of 
 the bond, the landowner is not, upon his suit for specific perform- 
 ance, entitled to an injunction to restrain the company from conti- 
 nuing in possession of the land until they shall have paid the 
 purchase-money ; if the company were destroying the property, the 
 plaintiff might be entitled to an injunction, but the fact that the 
 plaintiff has let the company into possession and that they are only 
 using the lands for the very purpose for which he sold it to them, 
 disentitles him to the injunction. It appears inconsistent in a suit 
 for specific performance to apply to turn the purchaser out of 
 possession, and it would seem more proper, in such a case as this, 
 to apply to have the money paid into Court (2). However, if a 
 railway company take land and make a railway thereon and after- 
 wards lease the railway to another company, and part of the pur- 
 chase-money remain unpaid, a Court of Equity will, upon a bill 
 asking that relief, order the first company to pay the money, and 
 in default, that both companies shall be restrained from running 
 engines over or otherwise using the plaintiff's land (3). 
 
 39. A Court of Equity will enforce specific performance of an 
 indefinite agreement for the user of a railway by an individual on 
 reasonable terms, where the actual user has removed all difficulty 
 about what terms are reasonable (4). 
 
 40. A Court of Equity will not enforce specific performance of 
 an agreement by a director with his company for the benefit of 
 himself or his firm (5). 
 
 41. Although it is very difficult to execute an agreement by a 
 
 (1) Bedford and Ccmhridge Railw. L. E. 1 Oil. 594 ; 36 L. J. (Oh.) 104 ; 
 Co. V. Stcmhy, 11 W. E. 139 ; 7 L. T. 14 W. E. 1002. 
 
 (N. S.) 477. (4) Laird v. Birkenhead Bailw. Go., 
 
 (2) Pell V. Northampton and Barv- Job. 500. 
 
 Ixu-y Junctim, Bailw. Co., L. E. 2 Oh. (5) Flanagam, v. Great Western 
 
 100 ; 12 Jur. (N. S.) 897. Bailw. Co., L. E. 7 Eq. 116 ; 38 L. J. 
 
 (3) Cosens v. Bognor Ba/ilw. Co., (Oh.) 117 ; 19 L. T. (N. S.) 345. 
 
 T 
 
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322 BAIL WAY COMPANIES. 
 
 Pakt II. railway company to purchase a portion of land necessary for their 
 Sect. 1. railroad " subject to making such roadways and slips for cattle as 
 might be necessary," yet a plaintiff is entitled to a specific per- 
 formance ; and the Court will direct a reference to ascertain what 
 is necessary (1). 
 
 42. Though where, on the footing of an offer, possession of land 
 has been taken by a railway company which is undisturbed by the 
 landowner until after an expenditure on the faith of such offer, the. 
 Court, on the principle of contract, will protect possession, and 
 strain its discretionary jurisdiction of specific performance so far as 
 to fix the amount of a rent not expressly or further fixed by the 
 terms of the offer, than by an indication of the terms and principle 
 on which the amount of rent is to be ascertained; yet if the 
 plaintiffs have obtained from the Legislature the means for pro- 
 tecting their possession, the necessity for straining the doctrine 
 of specific performance is at an end, and the Court must hare 
 something very strong in a case where specific performance is 
 sought as ancillary to getting possession, to induce it to strain 
 its jurisdiction and fix the terms of an agreement not finally 
 arranged (2). 
 
 43. Though land be taken by a railway company not under its 
 compulsory powers but by private contract, the jarisdietion of a 
 Court of Equity to secure to the vendor the easements he con- 
 tracted for, is not ousted by the provisions of the Eailways Clauses 
 Consolidation Act (8 Vict. c. 20) (3). 
 
 44. The Court will not grant an injunction to restrain a railway 
 company from entering into an agreement with another railway 
 company which would be a violation of, or inconsistent with, a 
 subsisting agreement between the plaintiffs, a railway company, 
 and the defendants, if the inconvenience to arise from granting 
 the injunction is greater than the inconvenience to arise from 
 refusing it (4). 
 
 45. If a landlord, having power to determine a lease, enter into 
 
 (1) Sanderson v. Gockermouth and WorMngtonBailw.Co.,2E..Si:1.S3i1; 
 Workington Railw. Co., 11 Beav. 497 ; 11 Beav. 497. 
 
 2 H. & T. 327. (4) Shaftesbury and Chester EmU 
 
 (2) Meynell v. Surtees, 1 Jiir. (N. S.) Go. v. Shrewsbury and Birmmgliam 
 80, 737. Eailw. Co., 1 Sim. (N. S.) 410; 20 L. J- 
 
 (3) Sanderson v. Uockermouth and (N. S.) Ch. 574 ; 15 Jur. 548. 
 
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RAILWAY COMPANIES. 323 
 
 an agreement with his lessee, under which he becomes purchaser Part li. 
 of the lessee's interest, and the landlord give notice to determine ''seot'' i. 
 the lease, the relation of vendor and purchaser is established, and ~ 
 
 a Court of Equity will not allow the tenant to be evicted by the 
 lessor until the question as to the amount of compensation or pur- 
 chase-money is settled between the parties ; therefore a railway 
 company in the position of a lessor, and, by its dealings with the 
 leasee, also in the position of a purchaser, will be restrained from 
 evictifag the lessee, under a parliamentary notice, until the ques- 
 tion of compensation or, purchase is settled (1). A Court of Equity 
 will refuse an injunction to restrain a company from crossing the 
 line of another company, so far as it may disable the former com- 
 pany to perform a contract which it has entered into for a way- 
 leave with an owner of land (2). 
 
 46. The authorities make the rule quite clear that in so com- 
 plicated a matter as the construction of a railway, a Court of 
 Equity will not enforce specific performance. A plaintiffs proper 
 remedy in such a case is an action for damages on the breach of 
 contract (3). 
 
 47. Notices by railway companies to take land cannot be 
 treated higher than contracts ; and after great delay in proceed- 
 ing on such notices, they will be considered as abandoned (4). 
 And if an ojiginal notice is not given lond fide, and a company in 
 their subsequent proceedings treat the notice as abandoned, and 
 in the belief of such abandonment a landowner forbears to take 
 proceedings ; the landowner will be entitled to an injunction to 
 restrain the company from summoning a jury to assess the value 
 of his lands (5). But a company may abandon a notice to take 
 part of a property with the intention of taking lands under their 
 compulsory powers, upon being required to take the whole ; and 
 such notice, without some act to obtain possession, is not a con- 
 tract binding on the company (6). 
 
 (1) Doo v. London a/nd Croydon portJunction)Eailw.Oo.,19'W.Ti.34:5. 
 Railw. Co., 8 L. J. (N. S.) Ch. 201. (4) Hedges v. Metropolitan, Eailw. 
 
 (2) Clarence Eailw. Co. r. Great Co., 28 Bear. 109. 
 North of England, Clarence, and Eart- (5) lb. 
 
 lepool Jimetimi Eailw. Co., 2 Eailw. (6) King v. Wycombe Eailw. Co , 
 
 Cas. 763 ; 6 Jur. 269. 28 Beav. 104; 6 Jur. (N. S.) 239 ; 29 
 
 (3) Greenhill v. Me of Wight {New- L. J. (Ch.) 462. 
 
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324 
 
 RAILWAY COMPANIES. 
 
 Paet II. 48. A Court of Equitv will restrain a company from proceedmff 
 
 Chapter VH. , . . i i i . , . . , ° 
 
 Sect. 1. except m relation to what is included m their notice to the owner 
 
 of the land, and the jury from assessing the value of any other 
 land than that for the purchase of which the owner has been re- 
 quired by the notice, to treat ; and the proceeding before the jiiry 
 must be consistent with the precept, and the precept with the 
 notice (1). 
 
 49. A new tenant entering into possession without notice of the 
 construction of an intended railway, before the company has taken 
 pessession, is entitled to a notice to treat notwithstandiug a notice 
 has been given to the prior tenant (2). 
 
 50. After a notice to treat for the purchase of property given 
 by a railway company, neither party can get rid of the obhgation 
 to buy and sell, and the owner will be restrained from selling to 
 any other party (3). If land in respect of which a notice has been 
 given by a company to treat, is not required for the purposes of 
 the railway, the Court will restrain the company from taking the 
 land. If the company were entitled to take the land in such a 
 case, they would be equally entitled to take land belonging, to any 
 one which happened to be within the limits of deviation, though 
 not required for the purpose of constructing the railway (4). And 
 a railway company having power to take land as they might think 
 necessary for the purposes of their railway, will be restrained from 
 compulsorily taking land which does not appear to be wanted for 
 making their line (5). 
 
 51. If proceedings are contemplated by a railway company 
 to assess lands which the company are not authorized by their 
 Act to take, such proceedings will be a nullity, and, therefore, 
 
 ■ unless a case is made of any sudden grievous injury done to the 
 inheritance, a Court of Equity will not grant an injunction to 
 restrain the company from so proceeding (6). 
 
 (1) Stone Y. Commercial Railw. Co., (4) Vane v. Gockermouth, Eeswidi, 
 i My. & Or. 122 ; 1 Railw. Cas. 376. and Penrith Railw. Co., 13 W, E. 
 
 (2) Carters. Great Eastern Railw. 1015. 
 
 Co., 9 Jur. (N. S.) 618 ; 8 L. T. (N. S.) (5) Flower v. London, BrigUm, 
 
 197. and South Coast Sailw. Co., 2 Dr. & 
 
 (3) Metropolitan Railw. Co. v. Sm. 330. 
 
 Woodhouse, 11 Jur. (N. S.) 296 ; 37 (6) Mouchet v. Great Western 
 
 L. J. (Oh.) 297. Co., 1 Railw. Cas. 567. 
 
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RAILWAY COMPANIES. 325 
 
 52. A railway company is entitled to restrain an owner of land Pabt II. 
 in a miaing district from taking away any of the coal necessary °se™ l. " 
 
 for the security of a bridge, the abutments of which rest upon 
 
 ground which the company has taken ; and whether a grant is 
 voluntary or compulsory, it raust carry with it all that is necessary 
 to the enjoyment of the subject-matter of the grant ; and there- 
 fore, if a certain amount of lateral support is essential to the safety 
 of the railway, the right to it must, in addition to the special pro- 
 tection afforded by a special Act, pass as a necessary incident to 
 the grant of the land (1). A conveyance, though gratuitous, of 
 land to a railway company for the purposes of the line gives a 
 right by implication, and an implied obligation is contracted to 
 afford all reasonable subjacent and adjacent and lateral support 
 connected with the subject-matter of the conveyance and neces- 
 sary for the maintenance of the railway, but such obligation is 
 limited by the condition of the land at the time of the grant or 
 conveyance (2). 13ut the grant to a railway company under their 
 Act and the Eailway Acts of the right to make and use a tunnel 
 does not give the company such a right to support to their tunnel, 
 that the grantor, acting in accordance with the Railways Clauses 
 Act, sects. 77, 78, cannot work mines under and adjacent to the 
 tunnel ; and the grantor, in such a case, is in the same position in 
 respect to his right to work mines under these two sections of the 
 Railways Clauses Act as if the company had actually purchased 
 the land, and the rule that a grantor cannot derogate from his 
 own grant does not apply (3). 
 
 53. If an agreement made between two railway companies 
 under their common seals contain clauses which are beyond the 
 powers of the directors of one of the companies, and clauses for 
 referring to arbitration all disputes arising under the agreement, a 
 
 (1) North Eastern Eailw. Co. v. 2 Macq. 449 ; S. C. sub nom. Gale- 
 Elliott, 32 L. J. (Oh.) 402 ; 9 Jur. donian Eailw. Co. and the Olasgoiv 
 (N. S.) 555 ; IJ. & H. 145 ; 2 De G. C. & C. Mailw. Co. v. Sprot, 2 Jur. 
 F. & J. 423 ; Elliott v. Nwth Eastern (N. S.) 623 ; Caledonian Bailw. Co. v. 
 Eailw. Co., 10 H. L. 0. 333 ; Nerth Belhaven (Lord), 3 Macq. 56. 
 Eastern Eailw. Co. v. Grassland, 32 (3) London and North Western 
 L. J. (Oh.) 353 ; 2 J. & H. 565 ; 11 Bailw. Co. v. Ackroyd, 31 L. J. (Ob.) 
 W. R. 83 ; 6 Jur. (N. S.) 817. 588 ; 8 Jur. (N. S.) 511. 
 
 (2) Caledonian Eailw. Co. v. Sprot, 
 
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326 EAILWAY COMPANIES. 
 
 Part II Court of Equity will, at the suit of a shareholder of that company, 
 6ect\ 1. restrain both companies from proceeding to arbitration in respect 
 of alleged breaches of those clauses (1). 
 
 54. If some of the terms of an agreement between two railway 
 companies are uUra vires, and cannot be carried out jvithout 
 the assistance of Parliament, a Court of Equity will restrain 
 those acts which the companies can do as well as those they 
 cannot do, all being component parts of the same illegal agree- 
 ment ; and the parties have no right by virtue of such an 
 agreement, until they have obtained the authority of Parliament, 
 to do even those acts which, independently of the agreement, 
 they do not require the authority of Parliament to do (2). A 
 Court of Equity will restrain the expending of the funds of a 
 company in au application to Parliament for powers to extend 
 the business of the company beyond the objects for which it was 
 constituted (3). And it is well settled that the principles which 
 are to govern in cases in which the Court is called upon to 
 restrain the application of the funds to objects not included in 
 the constitution of the company, between the members of large 
 companies, are the same as those which regulate the rights in 
 ordinary partnerships (4). So the delegation by one company 
 of some of its statutory powers to another company, contrary to 
 the policy of their Acts, can neither be granted nor accepted 
 without further powers from Parliament; and will be restrained (5). 
 But an agreement for an application to Parliament for powers 
 necessary to enter into terms of that nature, and upon a stipula- 
 tion that they shall not be acted upon until the necessary powers 
 should have been obtained, is lawful, and will not be re- 
 strained (6). 
 
 55. The powers contained in Eailway Acts are given only in 
 
 (1) MaunseU v. Midland Great (3) Simpson v. Denison, 10 Hare, 
 Western Sailw. (of Ireland) Co., 1 H. 51 ; vide Winch v. Birkenhead, Lan- 
 & M. 130. cashire, and Cheshire Junction BaUw. 
 
 (2) Hatiersley v. Shelhurne (Earl), Co., 5 De G. & Sm. 562. 
 10 W. E. 881 ; 31 L. J. (Ch.) 873 ; 7 (4) lb. 
 
 L. T. (N. S.) 650 ; Charlton v. New- (5) Winch v. Birkenhead, Lanca- 
 
 castle and Carlisle Eailw. Co., and shire, and Clieshire Junction Bauv). 
 
 North Eastern Eailw. Co., 5 Jur. Co., 5 De G. & Sm. 562. 
 
 (N. S.) 1096. (6) lb. 
 
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RAILWAY COMPANIES. 327 
 
 contemplation of the supposed public good to be obtained from the Part ii. 
 completion of the whole work authorized, and the Court will inter- sbot. i. 
 fere when it sees that the whole undertaking cannot be completed. ~ 
 
 And a railway company is not like a partnership for general trad- 
 ing purposes, in which one portion of the business may be aban- 
 doned ; but it is a partnership for a public purpose for effecting a 
 work which it is a duty to complete, and the obligation to complete 
 the work is co-extensive with the authority to make it. And there- 
 fore a Court of Equity will restrain a company from making a 
 limited portion of a line only, with the intention of abandoning the 
 , rest, or otherwise than with the view and purpose of completing 
 the whole (1). If a railway company has undertaken to complete 
 a line, or any series of lines, it is bound to complete the whole line 
 or series of lines ; and is not, without parliamentary authority, at 
 liberty to abandon any portion of its undertaking (2). But if 
 there has been acquiescence on the part of the plaintiif, and the 
 other shareholders have some time — for instance, eighteen months 
 — ^previously to filing the bill, known, or have had the means 
 of knowing, the acts complained of, the Court will not grant 
 an injunction (3). Existing contracts for making part of the 
 line are no answer to an application to prevent a railway com- 
 pany from making a portion of the line with an intention of 
 completing less than the whole ; though a case might arise in 
 which the Court would not be disposed to act in a severe and 
 strict manner, if by a small expenditure a great benefit might 
 result to the shareholders, and a considerable advantage to the 
 public (4). But where a railway company has formed a portion 
 of the line, but is unable to complete the whole, the Court exer- 
 cises a discretion in granting an injunction, the efiect of which 
 will be to prevent that portion from being made effective and 
 beneficial to the public, and profitable to the shareholders (5). 
 
 (1) Cohen v. Wilkinson, 12 Beav. Co., 12 Beav. 460; Hodgson v. Earl 
 125, 138 ; 5 Eailw. Oas. 741, 758 ; 1 Powis, supra. 
 
 Mac. & G. 481 ; 1 H. & T. 554 ; (3) Qraham v. Birleenhead, Lanca- 
 
 Logan v. Karl Courtown, 13 Beav. shire, and Cheshire Junction Eatlw. 
 
 22 ; 20 L. J. (Ch.) 347 ; et vide Hodg- Co., 2 Mac. & G. 146 ; 2 H. & T. 450. 
 
 son V. Earl Poms, 12 Beav. 392, 529. (4) S. C. 12 Beav. 460, 469. 
 
 (2) Oraham v. Birkenhead, Lanca- (5) Hodgson v. Earl Powis, 12 
 shire, and Cheshire Junction Mailw. Beav. 529 ; 19 L. J. (N. S.) Ch. 356. 
 
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328 EAILWAY COMPANIES. 
 
 Paet II. 56. It is unauthorized and improper for railway companies to 
 
 ^&E^.i^^' embark their funds in other railway undertakings; and they have 
 
 no right to engage or pledge their funds, or entangle their affairs 
 
 in unauthorized transactions, upon a speculation that they may 
 obtain parliamentary authority for doing acts which are beyond 
 their powers at the time when they are done (1). 
 
 57. An agreement between two railway companies, made with- 
 out the authority of the Legislature, whereby one company 
 delegates to another all the powers which have been conferred 
 on it by Parliament, is an unlawful attempt to effect that which 
 Parliament can alone authorize, and it is against public policy; 
 and in such a case it is the duty of a Court of Equity to withhold 
 its interference when called upon to act in aid of such agree- 
 ments (2). But it would appear that if one railway company 
 grants to another railway company the use of their lines, and of 
 all conveniences upon those lines, they cannot object to their 
 grantees using the conveniences granted for any purposes for 
 
 • which they (the grantees) may be able to apply them, although 
 they (the grantors) may not themselves be entitled to use them 
 for such purposes (3). 
 
 58. It has been absolutely and unalterably decided in the 
 Court of Chancery, as a Court of Equity, that companies who are 
 possessed of funds for objects which are distinctly defined by Act 
 of Parliament cannot be allowed to apply them to any other 
 purpose whatever, however advantageous or profitable that pur- 
 pose may appear to be to the company or to the individual 
 members of the company (4). 
 
 59. Though a duly authorized application to Parliament by 
 directors of a railway company where there are two classes of 
 shareholders, for an Act which will very materially alter the 
 existing rights and interests of the two classes, is not a breach 
 of trust or duty to the company ; and to hold otherwise would be 
 applying too strictly to a railway company the principles admitted 
 to be applicable to private partnerships resting on private con- 
 
 (1) Logan v. Earl Courtown, 13 306, 310. 
 Beav. 22 ; 20 L. J. (Ch.) 347. (3) lb. . 
 
 (2) Oreat Northern Bailw. Co. v. (4) Munt \. 8hrewshv/ry and Chester 
 Eastern Counties Bailw. Co., 9 Hare, Bailw. Co., 13 Beav. 1. 
 
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RAILWAY COMPANIES. 329 
 
 ^racts unconnected with public duties and interests, and capable Paet II. 
 
 Ohaptpr VII 
 
 of dissolution ; yet a Court of Equity will restrain the application Seot. l. 
 of the funds or moneys of the company towards payment of the 
 costs of so much of the bill as proposes to effect a scheme 
 for the commutation of the privileges attached to one of the 
 •classes (1). 
 
 60. The Court will restrain the carrying out of a proposal by 
 the directors of a railway company for the purpose of increasing 
 the trtifSe, to guarantee certain profits, and to secure the capital 
 of an intended steam-packet company, which was to act in con- 
 nection with the railway. Such a transaction is not within the 
 powers of the company (2). A railway company is bound to 
 apply all its moneys and property for the purposes directed and 
 provided for by their Act of Parliament, and not for any other 
 purpose whatever ; and any application of or dealing with the 
 capital funds or money in any manner not distinctly authorized 
 by the Act, is illegal. And if directors, for purposes not author- 
 ized by the Act of the company, are proceeding to involve the 
 company or shareholders in liabilities to which they never con- 
 sented, relief may and ought to be given in a Court of Equity (3). 
 A railway company has no power to expend funds in the prosecu- 
 tion of a suit not instituted by itself, and a Court of Equity will 
 restrain it from so doing (4). 
 
 61. Although a Court of Equity will not interfere with a com- 
 pany merely because a particular act has been done in an 
 informal way, which may afterwards be legally set right by them, 
 the rule does not apply to cases of misapplication of funds which 
 could not, under any circumstances, be rendered legal (5). 
 
 62. A Court of Equity will not interfere in a mere matter of 
 internal arrangement — as, for instance, in the question of remu- 
 neration to directors, which is intra vires of a company — to do so 
 would be to restrain a company from managing its own affairs (6). 
 
 (1) Stevens v. South Devon Mailw. (4) Kernaghan v. Williams, L. B. 
 Co., 13 BeaY. 48, 58. . 6 Eq. 228. 
 
 (2) Colman v. Eastern Counties (5) Bagshaw v. Eastern Union 
 Eailw. Co., 10 Beav. 1. Bailw. Co., 2 H. & T. 201 ; 2 Mao. & 
 
 (3) Salomons v. Lain^, 12 Beav. Gr. 3b9 ; 6 Eailw. Cas. 152, 169 ; 7 
 339; 6 Eailw. Cas. 289, 303. Hare, 114. 
 
 (B) Lambert v. Northern liaUw. of Buenos Ayres Co., 18 W. E. 180. 
 
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330 BAIL WAY COMPANIES. 
 
 Paet II. Nor upon the question of gratuities if intra vires, and in fair 
 Sect. 1. management (1). Nor will it interfere in the internal manage- 
 ment of the affairs of a continuing company, nor take upon itself 
 to determine questions which may well and ought to be deter- 
 mined by the shareholders themselves at general meetings (2). 
 But though the Court will not interfere with the internal arrange- 
 ments or management of a company, it will not permit directors 
 to resort to a contrivance for the purpose of preventing holders 
 of shares from, exercising their legal rights — for instance, their 
 voting powers (3). 
 
 63. A company incorporated for the purpose of making a rail- 
 road cannot, with the dissent of one of the shareholders, carry on 
 a trade distinct from the purposes for which it was incorpo- 
 rated (4). An Act of Parliament constituting a railway company 
 is a contract between the company and the public, the perform- 
 ance of which the public has an interest in enforcing ; and, there- 
 fore, a railway company with the ordinary powers will, at the suit 
 of the Attorney-General, on the relation of a stranger to the 
 company, be restrained from carrying on the business of coal 
 merchants (5). 
 
 64. With regard to the interests of the public, there > is no 
 principle of public policy which renders void a trafBc agreement 
 between two lines of railway for the purpose of obtaining a uniform 
 system of trafSc management, and avoiding competition; and 
 though a public company, constituted for a particular purpose, 
 will not be allowed to apply its funds in a manner not sanctioned 
 by the constitution of the company, a Court of Equity will not 
 interfere with a traffic agreement between two lines of railway to 
 divide the net earnings in certain definite proportions, calculated 
 oil the experience of the past course of traffic ; such an agreement 
 being lonafide, is not ultra vires (6). But an agreement between 
 
 (1) Eampson v. Price's Patent (4) Forrest v. Manchester, Sheffield, 
 Candle Co., 24 W. E. 754; 45 L. J. andLincolnshireBailw.Go.,30Bescv.iO. 
 (Ch.) 437 ; 34 L. T. 711. (5) Att.-Gen. v. Great NoHhem 
 
 (2) Bailey v. Birkenhead, Lanca- Railw. Co., 1 Dr. & Sm. 154; 6 Jur. 
 shire, and Cheshire Junction Bailw. (N. S.) 1006 ; 29 L. J. (Oh.) 794. 
 Co., 12 Beav. 433 ; 6 Eailw. Gas. 256. (6) Hare v. London and North 
 
 (3) Cannon v. Trask, L. E. 20 Eq. Western Bailw. Co., 2 J. & H. 80; 30 
 669 ; 44 L. J. (Ch.) 772. L. J. (Ch.) 817. 
 
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EAILWAY COMPANIES. 331 
 
 two railway companies that they shall work together, and that JPaetI. 
 the profits shall be shared, so as to give a certain percentage to Seot. l. 
 each, is beyond the powers of the companies, and illegal (1). "~ 
 
 65. A Court of Equity will enforce by injunction a covenant 
 by a railway company with a landowner, that land purchased by 
 the company shall for ever be used as a station of a given charac- 
 ter — as, for instance, a first-class station ; but if a station built in 
 pursuance of such a covenant is existing, and has not been 
 objected to, and has remained for many years, and the passengers 
 are not numerous, the Court will not compel a larger station to be 
 built, although that railway had, after the station had been built, 
 amalgamated with another company with a much greater length 
 of railway ; but it will direct what trains must stop at the 
 station (2). 
 
 66. An agreement by a railway company with contractors for 
 working the line, with an exemption of the contractors from cer- 
 tain liabilities as to accidents and certain other things, is not 
 of such a kind as to be enforceable by an injunction restraining 
 the company from determining the contract and resuming the 
 possession of their line for non-compliance with impracticable 
 requisitions, on the ground, amongst others, that the Court is 
 asked to compel one party to employ against his will another as 
 his confidential servant, for duties with respect to the performance 
 of which the utmost confidence is required ; and it is questionable 
 whether such a contract is not illegal, or not against the policy 
 of the law (3). 
 
 67. A railway associating, allying, and connecting itself with 
 another, does not thereby become equitably " amalgamated " with 
 it ; and although an agreement to amalgamate, as from a time 
 passed, may possibly, in Equity, amount to an amalgamation, 
 yet an agreement to do so at a future period will not, until that 
 
 (1) Charlton v. Newcastle and Car- Co., L. E. 5 Ch. 525 ; 17 W. R. 1085 ; 
 lisle Eailw. Co. and North Eastern 18 W. E. 473; 19 W. R. 523; 23 
 RaMw. Co., 5 Jur. (N. S.) 1096 (see L. T. (N. S.) 206, 970 ; L. E. 8 Eq. 
 now as to working agreements between 666 ; et vide Flood v. North Eastern 
 railway companies " The Railways Railw. Co., 21 L. T. (N. S.) 258. 
 Clauses Act, 1863," 26 & 27 Vict. o. (3) Johnson v. Shrewsbury and 
 92, part 3). Birmingham Railw. Co.j 3 De G. M. 
 
 (2) Hood V. North Eastern Railw. & G. 914. 
 
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332 EAILWAY COMPANIES. 
 
 Part I. period arrives (1). And the fact that a railway company has 
 Ohapteb VII. ^ ^ ' • , 1 
 
 Sect. 1. entered into such an agreement with another company will not 
 
 exclude the formeT company from equitable relief by injunction 
 to enforce a right of user of a part of a given line and joint use 
 of a station, conferred on them by an Act passed upon a com- 
 promise to grant such user, in consideration of their withdrawing 
 opposition to the bill of the company on whose line the user had 
 been authorized (2). But though a Court of Equity may interfere 
 between two railway companies entitled to the joint use of a 
 station, by prescribing regulations for its management, yet such 
 interference is not to take place without grave occasion ; and the 
 Court will, in a necessary case, endeavour to find its way to a 
 partition of the station, and appoint a receiver and manager, if 
 necessary ; but where provisions exist for the settlement of dis- 
 putes on the above subjects by arbitration, the Court will withhold 
 its interposition until the remedy thus provided has been resorted 
 to (3). A Court of Equity will restrain the obstruction of engines 
 running over another line by an agreement as to payments for 
 the right and as to station accommodation. And though such an 
 agreement contain no words of succession or restriction, yet these 
 contracts are not mere licenses revocable and determinable at 
 the will of either party, but are agreements which confer rights 
 of a permanent nature on companies ; and an agreement to grant 
 an easement of this nature to a corporate body need not be by 
 deed, and may be permanent, although it is to the company only, 
 and not to the company and their successors ; and the jurisdiction 
 of the Court to restrain by injunction an act which a defendant 
 is by contract bound to abstain from, is not confined to cases in 
 which there are either no executory terms in the contract, or 
 none which a Court of Equity has not the means of enforcing (4). 
 But the Court will not grant an injunction to restrain a company 
 from running certain trains without stopping at a certain station 
 for refreshment, in violation of a contract, until the right of the 
 
 (1) Shrewshi/ry and Birmingham Manchester, Sheffield, and lAncolnshm 
 Railw. Co. V. Stour Valley Mailw. Co., Sailw. Co., 5 De G. & Sm. 138 ; 16 
 2 De G. M. & G. 866. Jur. 146 ; and see on the last point 
 
 (2) lb. Lumley v. Wagner, 5 De G. & Sm. 
 
 (3) lb. 485; 1 De G. M. & G. 604; Diet- 
 
 (4) Oreat Northern Railw. Co. v. richsen v. Cabhum, 2 Ph. 52. 
 
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RAILWAY COMPANIES. 333 
 
 plaintiff is established at Law ; but it will require an undertaldng Pabt ii. 
 from the company to keep accounts, and also to pay what may beot. i. 
 be found due for the injury (1). 
 
 68. The onus lie3 on a company having running powers to shew 
 that regulations made by the other company having powers to 
 make regulations as to the construction of carriages, are unrea- 
 sonable and unnecessary ; and the fact of the regulations having 
 been wholly or in^ part relaxed in the past is no reason for the 
 Court to interfere to restrain them from being strictly enforced 
 in the future (2). 
 
 69. A railway company wiU not be allowed to deviate from the 
 plans and sections deposited by the promoters with the clerk 
 of the peace, specifying the span and height of a bridge by 
 which the railway is to be carried over a turnpike road (3). If 
 a railway company, in the first instance, obtain a coiiveyance 
 on certain conditions as to the width of a bridge, the company 
 win be restrained from departing from those conditions (4). And 
 in a contract between a railway company and a proprietor of 
 land to be crossed by the line of railway, the Railways Clauses 
 Act (8 Vict. c. 20) should be expressly referred to, if the com- 
 pany intend to claim the benefit of its provisions — as, for in- 
 stance, if a railway company contract to erect a bridge over a 
 street then planned and intended, and the plan shew that the 
 street is intended to be forty-two feet wide ; in the absence of any 
 reference in the deed to the Railways Clauses Act, the company is 
 not at liberty to narrow the street to the dimensions specified in 
 sect. 49 of that Act (twenty-five feet), but must make a bridge 
 with an arch the full width of the street (forty-two feet) (5). If 
 a railway company, in exercise of their powers conferred on them 
 by an Act of Parliament, which gives compensation to persons 
 whose property may sustain damage from their operations, are 
 
 (1) Bighyv. Great Western Sailw. 333; 1 De G. J. & S. 423; 9 Jur. 
 Co., 19 L. J. (N. S.) Oh. 470 ; 14 Jur. (N. S.) 618, 951. 
 
 710 ; see S. 0. at Law, 4 Ex. 220. (4) Edinburgh and Olasgow Bailw. ' 
 
 (2) Bhymney Bailw. Co. v. Taff Co. v. Campbell, 9 L. T. (N. S.) 157. 
 Vale Bailw. Co., 29 Boav. 153; 4 L. T- (5) Vlarhe v. Manchester, Sheffield, 
 (N. S.) 534. and Lincolnshire Bailw. Co., 1 J. & H.. 
 
 (3) Att.-Gen. v. Tewleesbury and 631. 
 Oreat Malvern Bailw. Co., 4 Griff. 
 
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334 RAILWAY COMPANIES. 
 
 Paet II. proceeding to erect an arch above a mill-race, for the purpose of 
 Sect. 1. sustaining an embankment on which the railway is to be con- 
 structed, and it appear that injury would be done to the mill 
 if the arch were of the proposed dimensions, but that the injury 
 would be avoided if the arch were of certain larger dimensions • 
 in such a case a Court of Equity ought to interfere, and restrain 
 the company from making over the mill-race an arch of less than 
 certain specified dimensions recommended by the report of an 
 engineer appointed to make a report on the subject (1). Nothing 
 but necessity can justify a railway company in carrying on their 
 works for crossing a mill-stream by a bridge in such a manner, 
 or on such a level, as will cause serious damage to the owner of 
 the land (2). 
 
 70. A railway company haying wide powers in derogation of 
 individual rights, is bound, in constructing its works on its own 
 land, to exercise them with moderation and discretion, and with 
 a reasonable regard to the rights of other persons, and not in a 
 vexatious and careless way. If a railway company can construct 
 its works without injury to private rights, it is in general bound 
 to do so (3). And without imputing negligence or improper 
 motives to a company, the Court is bound to hold them within 
 the strict exercise of their lawful rights, and to prevent them 
 from unnecessarily injuring their neighbours' property, although 
 the injury done is a necessary consequence of the exercise of 
 their powers (4). The Court will interfere to stop a constantly 
 recurring injury to a plaintiff's property — as, for instance, from 
 floods or heavy rains washing, earth on to his property — in con- 
 sequence of the improper mode of the construction of the works 
 by a railway company (5). 
 
 71. There is no restriction as to the powers of a railway com- 
 pany to alter levels of approaches to a bridge to be raised, over 
 which a road is to be carried ; provided the land to be affected 
 is included in the plans and sections deposited, or mentioned in 
 
 (1) Coats V. Clarence Eailw. Co., Co., L. E. 16 Eq. 636, 640; 21W.B. 
 1 Euss. & M. 181. 902. 
 
 (2) Manser v. Northern and Eastern (4) Arnold v. Furness Eailw. Co., 
 Counties JRailw. Go., 2 Eailw. Gas. 22 W. E. 613. 
 
 380; 5 Jur. 983. (5) Keates v. HolyweU Sailw. Co., 
 
 (3) Briscoe v. Oreat Eastern Bailw. 28 L. T. (N. S.) 183. 
 
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EAILWAY COMPANIES. 335 
 
 the books of reference, and full satisfaction is made to all parties Pabt i. 
 interested for the damage sustained (Ij. If a local board of ^"^s™ 7^^' 
 
 health withdraw its opposition to a railway bill upon the insertion 
 
 in the Act of a clause providing that no bridge carrying a road 
 over the railway within their district shall have aa approach 
 with a slope of more than a certain incline, the company will be 
 restrained from permitting a bridge to remain with a slope of 
 more than that incline ; and it is no answer to say that this 
 requisition cannot be complied with without stopping the rail- 
 way (2). 
 
 72. A Court of Equity will grant a mandatory injunction, in 
 effect compelling a railway company to pull down walls which 
 they have built, in order to prevent another railway company 
 from crossing the line by means of a bridge the latter company 
 were authorized to build across the line of the former one (3). 
 
 73. A railway company will not be restrained from making a 
 deviation within its powers of deviation, unless they capriciously 
 use or exceed their powers, or it can be shewn that if the devia- 
 tion is made, the line can be constructed in any better way than 
 that proposed by the company (4). 
 
 74. K justices of the peace have jurisdiction to compel the 
 construction of accommodation works by a railway company, or 
 to enable the landowner himself to construct them, a Court of 
 Equity will not interfere, unless there is some special ground, 
 such as contract or the exceeding or abuse of parliamentary 
 powers ; nor until recourse has been had, iu the first instance, to 
 justices (5). And that is so, as well after the completion of the 
 railway as during its construction (6). 
 
 75. The Court will restrain a railway company from inter- 
 
 (1) Beardmer v. London and North ence, and Hartlepool Junction Bailw. 
 Western BaUw. Co., 1 Mac. & Gr. 112 ; Co. v. Clarence Bailw. Co., 1 Coll. 
 1 H. & T. 161 ; 5 Eailw. Oas. 728 ; et 507 ; 5 Bailw. Cas. 605. 
 
 vide Feoffees of Heriofs Hospital v. (4) Att.-Qen. v. Great Western 
 
 Gibson, 2 Dow. 301 ; North British Bail. Co., 14 W. R. 726. 
 
 Bailw. Co. V. Tod, 12 01. & F. 722. (5) Hood v. North Eastern Bailw. 
 
 (2) Att.-Gen. v. Uid Kent Bailw. Co., L. E. 11 Bq. 116 ; 19 W. E. 266. 
 Co. and South Eastern Bailw. Co., 23 L. T. (N. S.) 433 ; 40 L. J. (Oh.) 
 L. E. 3 Oh. 100 ; 16 W. E. 258. 17. 
 
 (3) Great North of England, Clar- (6) lb.' 
 
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336 BAIL WAY COMPANIES. 
 
 Part ii. fering with a turnpike road, until they shall have provided another 
 ^™* 2 road over the proposed railway as convenient for passengers and 
 carriages as the then present road, or as near thereto as circum- 
 stances allow, as required by the Eailways Clauses Consolidation 
 Act, 1845, s. 56 (1). 
 
 76. So a Court of Equity will oblige a railway company to 
 comply with their Act prescribing the mode in which a turnpike 
 road, to be crossed by a railway, is to be constructed (2). 
 
 77. The company in such cases must do as little damage as 
 can be. In granting such an injunction the Court cannot point 
 out to the company what they ought to do, except by stating the 
 reasons which induce the Court to come to its conclusion, or the 
 manner in which it appears to the Court that that which seems an 
 evU can be remedied (3). 
 
 78. If it does not appear to be the intention of a company to 
 break up an old road until a new one is completed, the Court will 
 not grant an injunction, but the motion will be directed to stand 
 over tUl it is ascertained whether the company will, after making 
 the new road, proceed in an illegal course, and whether the new 
 road is really inconvenient and contrary to the clauses of the 
 Act (4). 
 
 79. The Court will not restrain a company from partially di- 
 verting the stream of water of a navigable river, and thereby occa- 
 sioning by the works the obstruction of a private road, if the 
 plaintiff is held to have had notice of the intended works and has 
 acquiesced for some time — as for eighteen months (5). 
 
 80. Equity will not treat a railway company as a wrongdoer 
 where it has under its Act constructed a bridge and carried its 
 railway over it, although that may be prejudicial to the owner of 
 a bridge and of tolls for passing over it under another Act ; and if 
 that party be entitled to compensation, the making of compensa- 
 
 (1) AU.-Oen. v. London and South (3) Att.-Oen. v. London and South 
 Western JRailw. Co., 3 De G. & Sm. Western Bailw. Co., ante. 
 
 439. (4) Kemp v. London and Brighton 
 
 (2) Proprietors of the Northam iBaiZw;. Co., 1 Eailw. Cas. 495; 3 Jur. 
 Bridge and Roads v. Southampton 403. 
 
 Railw. Co., 1 Eailw. Gas. 653. See (5) lllingworth v. Manchester and 
 
 S. C. at Law, 6 M. & W. 428. Leeds Bailw. Co., 2 Eailw. Gas. 187. 
 
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EAILWAY COMPANIES. 337 
 
 tion is not a condition precedent to the exercise of its powers by Paet li. 
 
 ,r •! ,-, \ Chapter VII. 
 
 the railway company (1). S^gj l 
 
 81. The Court will restrain the erection of buildings over a 
 l-ailway tunnel upon land sold by the company, where there would 
 be danger to the public using the tunnel by their erection (2). 
 
 82. A Court of Equity will enforce by injunction the provi- 
 sions of the H5th section of the Railways Clauses Consolidation 
 Act, 1845 (8 Vict. c. 20), 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, notwithstandiag the practice of railway companies has 
 been to rely on each other with respect to the fitness of their re- 
 spective engines, and not to enforce the provisions of the Act, and 
 notwithstanding also, that to enforce such right of inspection 
 would occasion great inconvenience and danger to the public 
 traffic. The plain answer to this is, that the Legislature has given 
 tliose rights, and the Court has nothing to do but to enforce the 
 rights which exist (3). 
 
 83. Unpaid vendors have a lien, as against a railway company 
 — purchasers of larfd^for the purchase-money (4). And in case 
 the money is not paid, they have a right to an injunction to re- 
 strain the company from continuing in possession of the lands, 
 until the agreement shall have been performed, and to the ap- 
 pointment of a receiver to enforce the lien (5). And the vendor 
 has a right, liiie an ordinary vendor, to have his lien enforced by 
 a sale of the land (6), but yet, as to an injunction to restrain the 
 
 (1) JoTies V. Stanstead, Shefford, and Bailw. Co., 17 W. E. 506 ; 20 L. T. 
 ChwmhUy Bailw. Co., 41 L. J. (P. C.) (N. S.) 288 ; S. C, 16 W. E. 1077 ; 
 19 ; 8 Moore, P. 0. 0. (N. S.) 312 ; 20 svh nom. Pell v. Northampton and 
 W. E. 417 ; L. E. 4 P. 0. 98 ; 26 L. T. Banbury Bailw. Co., Nelson (Lord) v. 
 (S. S.) 456. Salisbury and Dorset Junction Bailw. 
 
 (2) Att.-Gen. v. Briggs, 1 Jur. Co., 16 W. E. 1074. 
 
 (ISr. S.) 1084. (5) Winchester {Bishop of) v. Mid- 
 
 (3) Midland Bailw. Co. v. Amber- Bants Bailw. Co., supra. 
 
 gate, Nottingham, Boston, and Eastern- (6) Munns v. Isle of Wight Bailw. 
 
 Junction Bailw. Co., 10 Hare, 359. Co., L. E. 5 Ch. 414 ; 18 W. E. 781 ; 
 
 (4) Winchester {Bishop of)^. Mid- 39 L. J. (Ch.) 522 ; 23 L. T. (N. S.) 
 Eants Bailw. Co., L. E. 5 Eq. 17 ; e« 96 ; L. E. 8 Eq. 653 ; et vide St. Ger- 
 vide St. Germans {Earl) v. Crystal mans {E^rl) v. Crystal Palace aiid 
 Palace Bailw. Co., L. E. 11 Eq. 568 ; South London Junction Bailw. Co., 
 Pen V. Midland and South Wales 19 W. R. 584; L. R. 11 Eq. 568; 24 
 
 Z 
 
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338 RAILWAY COMPANIES. 
 
 Part ii. company from making use of the land until the sale, that is not a 
 
 ChAPTEB VII r. p 1 ■ ^ • 
 
 Beot. 1. proper form of relief, as it makes the land useless to both 
 parties (1). And the Court will not, for the purpose of enforcing 
 the lien, restrain a company from running trains or engines over 
 the l^nd until a sale (directed by the Court) of the land agreed to 
 be taken (2) ; nor will it restrain a company from continuing in 
 ' possession after one abortive attempt to sell by the vendor, but 
 will rather direct the land to be offered again for sale, before it 
 will think the time has come for restraining the use of the land 
 and delivering up possession (3). When land purchased by a 
 railway company is sold to enforce the vendor's lien for unpaid 
 purchase-money, it is sold freed and discharged from all conceiv- 
 able claims on the part of the company, and from all conceivable 
 claims on the part of the public, as claiming through the com- 
 pany (4). An unpaid vendor may have leave to work out a decree 
 for specific performance against a railway company, notwithstand- 
 ing the passing of an Act of Parliament to restrain the continuance 
 of suits without the leave of the Court (5). 
 
 84. Preference bondholders who have been made preferred 
 creditors by statute, with a lien upon the road, works, and property 
 of a railway company, may restrain the directors from applying 
 the earnings of the railway in any other way than in the order 
 appointed by the statute (6). 
 
 85. A vendor has a lien on the land sold to a railway com- 
 pany, in respect of unpaid compensation for damages awarded in 
 pursuance of the agreement for sale, as well as in respect of the 
 purchase-money, and he is entitled to enforce that right by a sale 
 of the land (7). And the rights of the public and of debenture 
 
 L. T. (N. S.) 288 ; Eeane v. Atlienry L. T. (N. S.) 547. 
 
 and Ennis Junction Bailw. Co., 19 (4) Munns v. Isle of Wight Eailw. 
 
 W. E. 318, 43. Co., supra. 
 
 (1) Munns v. Isle of Wight Bailw. (5) Griffith v. Cambrian BaUw. Co., 
 Co., L. R. 5 Ch. 414; 18 W. R. 781; 17 W. R. 979; 21 L. T. (N. S.) 
 39 L. J. (Ch.) 522 ; 23 L. T. (N. S.) 290. 
 
 96 ; L. R. 8 Bq. 653 (6) Berrick v. Grand Trmk Bailw. 
 
 (2) Lycett v. Stafford and Uttoxefer Co., 7 U. 0. L. J. 240. 
 
 Bailw. Co., L. R. 13 Eq. 261 ; 41 L. J. (7) Walker v. Ware, Eadham, and 
 
 474. Buntimgford Bailw. Co., 35 Beav. 52;. 
 
 (3) Williams v. Aylesbury and Buck- 14 W. R. 158. 
 ingham, Bailw. Co., 21 W. R. 819 ; 28 
 
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RAILWAY COMPANIES. 339 
 
 creditors, and others claiming under the company, are subordinate Part ii. 
 to the vendor's lien for unpaid purchase-money (1). ''sb™?!. 
 
 86. A mortgage for securing money borrowed by a railway 
 company, according to the form in Schedule 0. of the Companies 
 Clauses Consolidation Act (8 Vict. c. 16) comprises the lands as 
 well as the rails and chattels of the company, and is entitled to 
 priority over an degit sued out by a judgment creditor of the 
 company, and the sheriff will be restrained from delivering legal ' 
 possession of the company's lands and rails to such a creditor (2). 
 
 87. A mortgagee of the undertaking of a railway under a de- 
 benture, has a title prior to that of a subsequent judgment creditor 
 who has obtained an elegit, and if his security is in danger of being 
 impaired by the acts of such judgment creditor, he may file a bill 
 to protect his security, although the time fixed for the payment of 
 the debenture-holder has not arrived (3). 
 
 88. And an injunction will lie against an attachment by judg- 
 ment creditors of a railroad, of its revenues pledged for the payment 
 of outstanding bonds (4). If there are two sets of bondholders 
 secured by separate mortgages, one of the second set will be en- 
 joined from collecting his bond by an execution, if the property 
 is insuEBcient for all ; upon the ground that such sale would inter- 
 fere with the priority of the other set, and the jpro rata rights of 
 the other members of the second set (5). 
 
 89. The grantee of a rent-charge in consideration of land sold 
 by him to a railway company, is entitled to distrain for arrears of 
 his rent-charge upon the land as sold by him, notwithstanding the 
 appointment of a receiver of the tolls of the company, but he will 
 not be permitted to distrain on the rolling stock or chattels con- 
 veyed by the company to trustees for the benefit of all their 
 creditors (6). 
 
 90. The words " dispose of" in the 128th section of the 8 Vict. 
 
 (1) Walker v. Ware, Eadham, and (4) Dunham v. Izett, 15 Iowa, 284: 
 Buntingford Railw. Go., 35 Beav. 52 ; (Amr.). 
 
 14 "W. E. 158. (5) Pennoch v. Coe, 23 How. 117 
 
 (2) Legg v. Mathieson, 2 Griff. 71 ; (Amr.). 
 
 29 L. J. (Ch.) 385 ; 6 Jur. (N. S.) (6) JEi/ton v. Denbigh, Ruthin, and 
 
 1010 ; 2 L. T. (N. S.) 112. Corwsn Railw. Co., Rickman v. Johns, 
 
 (3) Wildy v. Mid-Hants Railw. Co., L. E. 6 Bq. 488 ; 16 W. K. 928 ; 38 
 16 W. E. 409 ; 18 L, T. (JST. S.) 73. L. J. (Ch.) 74. 
 
 z 2 
 
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340 RAILWAY COMPANIES. 
 
 Paet II. c. 18, refer to a transfer of the land to some other person, not 
 
 Chapter VII. ... r ) "" 
 
 Sect. 1. to its application to a new purpose (1). And the abandonment 
 
 by a company of the undertaking for which the lands were pur- 
 chased, does not, independently of legislative enactments, give a 
 landowner whose land has been taken compulsorily, any right to a 
 reconveyance ; and he has no equity to restrain the company from 
 any user of the land not shewn to be productive of irreparable 
 injury to it ; and although a landowner has been compelled to part 
 with his land to a railway company, however beneficial it may be 
 to him that the railway should be made, no obligation is thrown 
 on the company to complete their undertaking, and no right exists 
 in the landowner to compel them to do so ; nor, if the company 
 should altogether abandon the undertaking, and apply the land 
 taken under the powers of the Act to a different purpose than the 
 making of the railway, has the landowner any new right arising 
 from the state of things, which can be enforced in a Court of 
 Equity ; and the landowner's right of pre-emption under the 128tli 
 section does not arise before the expiration of ten years, unless the 
 company by some act of theirs have shewn that they are about to 
 sell and dispose of the land. But the term "superfluous lands" in 
 the 127'th and 128th sections of the Act, preceded by the expression 
 " the lands which shall not be required for the purposes thereof" 
 means " more than are wanted for the undertaking," and is suffi-, 
 cient to include the case of an undertaking being abandoned (2). 
 
 91. The permanent dedication of land taken cOmpulsorily by 
 a railway company from a landowner, to a purpose not being one 
 of the purposes of their Acts, establishes the land to be superfluous 
 land, and the landowner can enforce his right of pre-emption, 
 and a Court of Equity will restrain the selling or disposal of the 
 land (3). 
 
 92. A person may be an adjoining owner to superfluous lands 
 within 8 Vict. c. 18, s. 128, although he may have purchased such 
 adjoining lands from the company itself (4). Superfluous lands 
 
 (1) Astley V. Manchester, Sheffield, Western Bailw. Co., 16 W. E. 1155, 
 and Lincolnshire Sailw. Co., 2 Ue G. 241 ; 19 L. T. (N. S.) 189. 
 
 ; J. 453 ; 4 Jur. (N. S.) 129 ; 27 L. J. (4) London and South 
 
 (Ch.) 299. Bailw. Co. v. Blackmore, L. B. 4 H. L 
 
 (2) lb. 610; 39 L. J. (Ch.) 713; 23 L. T. 
 
 (3) Beauchamp {Earl) v. Great (N. S.) 504. 
 
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BAIL WAY COMPANIES. 341 
 
 advertised for sale for building purposes, or nicked out for the PabtII. 
 same by a railway company, are not lands used for building pur- gE^o™ i ' 
 
 poses within 8 Vict. c. 18, s. 128, so as to defeat the right of 
 
 pre-emption given by the section to the person or several persons 
 whose lands shall immediately adjoin the land so proposed to be 
 sold (1). All adjoining proprietors have equal rights of pre-emp- 
 tion, and the right of an adjoining owner to claim pre-emption 
 of superfluous lands arises, if within the ten years allowed by the 
 Act, the company attempt to sell such lands (2). 
 
 93. The right of pre-emption given by section 128 of the 
 Lands Clauses Consolidation Act to persons whose lands imme- 
 diately adjoin superfluous land proposed to be sold by the pro- 
 moters of the undertaking, extends to lessees for years of such 
 adjoining lands (3). Where several persons are owners of lands 
 adjoining a piece of surplus land all in one piece, such of them as 
 elect to exercise that right are entitled to pre-emption over the 
 whole, before any part of it can be sold to a stranger (4). A Court 
 of Equity win restrain the sale of lands by railway companies 
 where rights of pre-emption exist (5). 
 
 94. It is not imperative on a Court of Equity to enforce by in- 
 locutory injunction a sta-tutory prohibition, and if it appear that 
 a clause in a Railway Act prohibiting the opening of the main line 
 until a junction line had been opened, had been introduced merely 
 for the purpose of obliging the company to complete speedily the 
 junction line; on an undertaking being given to complete the 
 junction line ^ith all practicable diligence, the Court will not re- 
 strain the opening of the main line before the completion of the 
 junction line (6). 
 
 95. A Court of Equity will not restrain the application of the 
 funds, of a railway company in the prosecution of works by the 
 
 (1) London and South Western Eq. 104 ; 37 L. J. (Ch.) 90 ; 16 W. E. 
 Bailw. Co. V. Blackmore, 19 W. E. 267 ; 17 L. T. (N. S.) 368. 
 
 305. (4) lb. 
 
 (2) London and South Western (5) lb. 
 
 Jiailw. Co. V. Blackmore, L. E. 4 {%) Cromford and High Peak Bailw. 
 
 H. L. 610; 39 L. J. (Oh.) 713; 23 Oo.y. Stockport, Bisley, and Whaley 
 
 L. T. (N. S.) 504. Sridge Bailw. Co., 1 De G. & J. 326 ; 
 
 (3) Coventry v. London, Brighton, 24 Beav. 74 ; 3 Jur. (N. S.) 628. 
 and South Coast Bailw. Co., L. E. 5 
 
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342 RAILWAY COMPANIES. 
 
 Part II. completion of .a branch line, although the powers di the' company 
 Seot^i i>LSi.Te expired, if there has been acquiescence in the prosecution of 
 of the works and delay in applying to the Court (1). 
 
 96. A Court of Equity will restrain a declaration of a dividend 
 on ordinary stock, made without regard to the prior right of pre- 
 ference shareholders in a railway company (2), and will direct 
 from what source the arrears are to 'be paid, if the profits at any 
 period of distribution are insufficient to pay in full the dividends 
 due to the preference shareholders (3). And a preferential share- 
 holder may file a bill to restrain a company from making a divi- 
 dend prejudicial to his interests, without waiting till there are 
 funds to make a dividend (4). 
 
 97. So the Court will grant an interlocutory injunction to 
 restrain the declaration of a dividend, if the right to do so depends 
 on the questions whether the interest on certain debentures can be 
 charged to capital, or interest on extension capital can be rightly 
 paid out of money received from contractors (5). Such questions 
 are not merely matters of internal management, and the Court 
 will interfere in such cases if directors are acting ultra vires (6). 
 So the Court will restrain a company from issuing shares or 
 stock in payment of dividends upon a scheme which is idtra 
 vires (7). 
 
 98. The arbitrary and despotic powers given by the Legisla- 
 lature to public companies are granted in consideration of an ex- 
 pected public benefit, and companies must keep within the limits 
 of their powers, and a Court of Equity will restrain the payment 
 of dividends until a line not completed within the time limited 
 has been opened, if that is the condition upon which the dividends 
 are payable by the Act of the company (8). 
 
 (1) FfooTes V. South Western Bailw. (5) Bloxam v. Metropdlitam •BaUw. 
 Co., 1 Sm. & Giff. 142 ; 17 Jur. 365. Co., L. E. 3 Oh. 337 ; 16 W. E. 490; 
 
 (2) Eenry v. Great Northern Bailw. 17 L. T. (N. S.) 637 ; 18 L. T. (N. S.) 
 Co., 1 De O. & J. 606 ; 4 K. & J. 1 ; 41. 
 
 vide 26 & 27 Vict. c. 118, "The Oom- (6) lb. 
 
 panies Clauses Act, 1863," ss. 13-15, (7) Eoole v. Great Western BaUin. 
 
 as to the creation and issue of new pre- Co., L. R. 3 Oh. 262 ; 16 W. K. 260 ; 
 
 ference shares or new preference stock. 17 L. T. (N. S.) 153. 
 
 (3) lb. / (8) Carlisle Y. South Eastern Bailw. 
 
 (4) Sturge v. Eastern Union Bailw. Co., 1 Mac. & G. 689 ; 2 H. & T. 366 ; 
 Co., 7 De G. M. & G. 158. 6 Bailw. Cas. 670, 682 ; 13 Beav. 295. 
 
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EAILWAY COMPANIES. 343 
 
 99. The non-completion of a railway by the time fixed for PaetII. 
 
 Chapter VU 
 completion is a public wrong, and a Court of Equity has no juris- seot. i. 
 
 diction at the suit of a shareholder to grant an injunction to re- 
 strain the making of any dividend until the completion of the rail- 
 way (1). The misapplication of the income is the subject of internal 
 regulation, and a Court of Equity does not attempt to direct the 
 performance of all the duties which the governing bodies of such 
 companies owe to the shareholders, but, on the contrary, leaves to 
 the companies themselves the enforcement of all the duties arising 
 out of matters which are the subject of internal management ; and 
 it cannot be safely said that in no case whatever joint-stock com- 
 panies ought to be allowed to divide any profits, or receive any 
 tolls, until all their works have been completed (2). 
 
 100. A Court of Equity will restrain the payment of dividends 
 out of capital moneys, both to the extent of the difference between 
 the net rent and conjectural income of surplus land, and to" the 
 extent of the conjectural increase in value of such lands ; such pay- 
 ments are breaches of trust on the part of the directors (3). But 
 if a company has paid for things properly chargeable to capital, 
 out of revenue, it is justified in recouping the revenue account, at 
 a subsequent time, out of capital, and may, if necessary, raise fresh 
 capital under its borrowing powers, for that purpose (4). 
 
 101. The Court will not restrain the declaration of a dividend, 
 on the ground that it is calculated upon an erroneous principle 
 with reference to various accounts of several amalgamated lines 
 of railway, and the profits realised; where the same principle 
 as to matters of account has been adopted and acted upon for 
 several successive years, and acquiesced in by the respective 
 shareholders (5). 
 
 102. If there is a charge of misconduct on the part of a rail- 
 way company, the Court will restrain the members of the managing 
 
 (1) Sroibnev. Monmouthshire Bailw. 339 ; vide Evans v. Coventry, 8 De Gr. 
 and Canal Co., 13 Beav. 32; et vide M. & G. 835; 5 W. E. 187, 436; 25 
 TheSkinners' Co. v. The Irish Society, L. J. (Ch.) 489 ; 26 L. J. (Ch.) 400. 
 
 7 Beav. 593 ; 12 01. & F. 425. (4) Mills v. Northern Bailw. of 
 
 (2) Brovme^. Monmouthshire Bailw. Buenos Ayres Co., L. E. 5 Ch. 621 ; 
 Co., supra. 19 W. R. 171. 
 
 (3) SalislmryY. Metropolitan Baihv. (5) Tool v. Great Western Bailw. 
 Co., 18 W. E. 974; 22 L. T. (N. S.) Co., 20 L. T. (N. S.) 74. 
 
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344 BAIL WAY COMPANIES. 
 
 Part II. committee from obtaining payment of the deposit out of Court (1). 
 "seot'i. -^"^^ one of the Judges of the Court of Chancery has jurisdiction, 
 
 on a bill filed, to grant an injunction to restrain the payment out 
 
 of Court to the company of the parliamentary deposit, upon an 
 order for that purpose made upon a petition made by another 
 Judge of the Court (2). 
 
 103. After a judgment at Law in favour of the plaintiff in Equity, 
 the plaintiff is entitled to an injunction to restrain the commissioii 
 of that which would be contrary to the decision at Law, notwith- 
 standing there is a writ of error on that judgment. As for instance, 
 where the plaintiff has obtained judgment that certain payments 
 to the company are overcharges — the overcharges will be restrained 
 notwithstanding an appeal to the Lords (3). 
 
 104. Although a plaintiff may have a good defence to an action 
 at Law, that will not necessarily prevent his proceeding in Equity 
 likewise, as for instance, where the defendants, directors of a railway 
 company, might be compelled to use the funds in their possession, 
 to discharge the liabilities of the company, instead of making use 
 of the action by the creditor as a screw for the purpose of com- 
 pelling payment of the debt by the plaintiff, a shareholder (4). 
 
 105. If a legal right alone is in question, and there are facts 
 which amount to a qualified consent and acquiescence, the Court 
 will award damages, instead of granting an injunction to restrain 
 the violation of the legal right by a railway company (5). 
 
 106. The Court will not restrain an obstruction by a railway 
 company of an alleged right of way, where it is doubtful whether 
 a public way exists and no private right is established, the remedy 
 is by an action on the case under the provitiion of the Eailways 
 Clauses Act (8 Vict. c. 20) (6). 
 
 (1) Ooodman v. Be Beauvoir, 10 (4) Fernihaugh v. Leader, i Eailw. 
 Jur. 938; et vide Gilhert v. Cooper, Gas. 473; 15 L. J. (N. S.) Oh. 458; e< 
 4 Eailw. Gas. 396 ; Lewis v. Cooper, vide Lewis v. Billing, i Eailw. Gas, 
 4 Eailw. Gas. 413. 414. 
 
 (2) Castendieck v. De Burgh, 4 (5) Lockwood v. London and North 
 Eailw. Gas. 381 ; 5 L. J. (N. S.) Gh. Western Eailw: Co., 19 L. T. (N. S.) 
 425. 68. 
 
 (3) Burrett v. Stockton and Bar- (6) Freeman v, Tottenham and 
 lington Bailw. Co., 1 H. L. G. 18 ; see Hampstead Jwnction Bailw. Co., 11 
 S. 0. at Law, 2 Man. & G. 134 ; 3 lb. Jur. (N. S.) 107 ; 13 W. E. 335. 
 
 956 ; 1 Scott, 641 ; 11 01. & F. 590. 
 
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EAILWAY COMPANIES. 345 
 
 107. A Court of Equity will restrain a railway company from PaetI. 
 relying on a document as a discharge of the plaintiff's claim for °seot\ l. 
 injuries, if it has been obtained by fraud, if the fraud alleged by 
 
 the plaintiff is not such as a Court of Law can necessarily deal 
 with ; in such a case the plaintiff will not be precluded from com- 
 ing to the Court by reason of his having commenced his action 
 for the injuries (1). 
 
 108. The act of obtaining from a poor man lying suffering from 
 a railway accident, by persons officiously, on behalf of a railway 
 xjompany, going to him and getting him to accept a small and 
 almost nominal sum, by means of false representation as to the 
 communications which had been made about his state, is a case of 
 directly fraudulent practice upon the man, and a directly fraudu- 
 lent and false statement made to him to induce him to enter into 
 the arrangement which was then made ; under those circum- 
 stances, it appears to be a matter of course that a Court of Equity 
 should not relinquish its jurisdiction to deal with a case of fraud 
 of that kind, and to say that the company is not entitled to use 
 for any purpose, or under any circumstances, an agreement which 
 has been obtained in that way (2). But the mere allegation of a 
 plaintiff, a gentleman of education and fuljy capable, unless 
 weakened by illness or accident, of taking care of himself and 
 understanding what what was done, will not entitle him to an 
 injunction to restrain a railway company from relying upon a 
 plea that the plaintiff had accepted a certain sum in full satisfac- 
 tion and discharge of his claim ; on the grotmd that there was a 
 distinct understanding that the plaintiff was not thereby to be 
 precluded from demanding further compensation, if it turned out 
 that his injuries were more "serious than was supposed at that 
 time ; for if these facts are true, and there is no fraud, they will 
 be an answer at Law to the defendant's plea to the action, and 
 the whole case can be tried at Law (3). 
 
 ] 09. The Court will not restrain a railway company by inter- 
 locutory injunction, from taking possession of works upon an 
 
 (1) Stewart v. Great Western Bailw. (2) Lee v. Lancashire and Yorkshire 
 
 Co., 2 Dr. & Sm. 438 ; 2 De a. J. & S. Sailw. Co., L. R. 6 Ch. 527 ; 19 W. E. 
 
 319; 13 L. J. (N. S.) 79; 13 W. E. 729 ; 25 L. T. (N. S.) 77. 
 
 907. (3) lb. 
 
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846 RAILWAY COMPANIES. 
 
 Part I. alleged default on the part of the contractor ; but the defendants 
 Sbot. 1. ought to enter into an undertaking not to remove any of the pro- 
 perty belonging to the contractor, if alleged to be forfeited, until 
 the question between the company and him has been decided (1). 
 But a railway company will be restrained from selling plant 
 belonging to a contractor who has made default, where they have 
 power, in that case, to take possession of the plant at a valuation, 
 and to allow it in account with the contractor, and have also 
 power to use it in the construction of the line, unless it appears 
 that there is a balance of account actually due from the con- 
 tractor (2). 
 
 110. If an insolvent railway company has filed a scheme of 
 arrangement with their creditors under the Eailway Companies 
 Act, 1867 (30 & 31 Vict. c. 127), and it has been confirmed by 
 the Court and enrolled, a debenture holder, who is one of a class 
 which is bound by the scheme, will be restrained from enforcing 
 a judgment obtained in respect of his debenture, before the fihng 
 of the scheme (3). 
 
 111. The insolvency of a railroad (U. S.) is no ground of injunc- 
 tion against the collection of subscriptions (4) ; but where there 
 are sundry fi. fas. against an insolvent railroad, threatening to 
 seize and sell the road, with its equipments, extending 100 miles 
 in length, through six different counties, Equity will take juris- 
 diction, direct a sale of the entire property for the benefit of all 
 concerned, and distribute the fund according to the practice and 
 usage in Chancery in a creditor's suit against executors and ad- 
 ministrators. In such a case no other Court possesses adequate 
 jurisdiction to reach and dispose of the entire merits. If a creditor 
 
 (1) MunroY. Wivenhoe and Bright- 6 Ch. 621; 18 W. R. 87; 21 L. T. 
 Ungsea Railw. Co., 11 Jur. (N. S.) 612 ; (N. S.) 545 ; 25 L. T. (K S.) 522; 
 
 13 W. R. 880 ; et vide Garrett v. Bavn et vide Robertson v. Wrexham, Mold, 
 stead and Epsom Downs Railw. Go., and G. Quay Railw. Co., 17 W. B. 
 11 Jioi. (N. S.) 591 ; 4 De G. J. & S. 137 ; Devon and Somersetshire Railvi. 
 12Z. Co., In re, L. R. 6 Bq. 610 ; 37 L. J. 
 
 (2) Garrett V. Salisbury and Dorset (Ch.) 914; 18 L. T. (N. S.) 631; 
 Junction Railw. Co., L. R. 2 Bq. 358 ; 17 W. R. 133; South Eastern of Por- 
 
 14 W. R. 816. iugal Railw. Co., In re, 17 W. E. 982. 
 
 (3) Potteries, Shrewsbury^ and (4) Dill v. Wabash, &c., 21 lU. 91 
 North Wales Railw. Co. v. Minor, 19 (Amr.). 
 
 W. R. 883 ; 40 L. J. (Ch.) 685 ; L. R. 
 
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WATERWORKS AND CANAL COMPANIES. '347 
 
 neglects or refuses to come in and- entitle himself to the benefit of Part ii. 
 tbe decree, Equity will not assist him to set aside and annul ^sec™i ' 
 it(l).. '— 
 
 112. If there is a question as to whether shares have or not been 
 .reliquished and transferred by an agreement with a company, the 
 Court will restrain an action against the plaintiff for the arrears 
 of calls upon such shares, but only on the terms of the plaintiff 
 suffering judgment in the action, and paying the money into 
 Court (2). 
 
 113. A Court of Equity will not interfere, upon a question of 
 mere account between different classes of shareholders in a rail- 
 way company, where the Act of the company has provided suf- 
 ficient machinery for that purpose by meaas of arbitration (3). 
 
 Sect. 2. Waterworks and Canal Companies. 
 
 1. The Court of Equity will restrain a waterworks company Waterworks 
 having an Act, with the usual powers, from laying down pipes for °°™P^"^^^- 
 the purpose of supplying with water beyond the limits of their 
 powers (4). So such a Court will restrain a waterworks company 
 from executing their works under their parliamentary powers, in 
 such a manner as to produce an injury not authorized by those 
 powers — as for instance, the fouling of a stream of water and 
 •rendering it unfit for the uses to which it had been applied before 
 that injury (5). A Court of Equity will take care that public bodies 
 who obtain authorities under Acts of Parliament do not abuse 
 their powers (6). But the abstraction of water by a waterworks 
 company from a stream, whereby the flow of water in the stream 
 is diminished, does not, under the Waterworks Clauses Act, 1847 
 (10 & 11 Yict. c. 17), s. 6, entitle a riparian owner or occupier 
 
 (1) Macon, &c. v. Parker,. 9 Geo. (4) Cardiff (Mayor, &c.) v. Cardiff 
 371 (Amr.). Waterworks Co., 5 Jur. (N. S.) 953. 
 
 (2) Playfair v. Birmingham, Bris- (5) Clowes v. Staffordshire Potteries 
 tol, amd Thames Junction Bailw. Co., Waterworks Co., L. R. 8 Oh. 125, 143 ; 
 8 L. J. (Oh.) 253 ; 1 Eailw. Gas. 460. 21 W. E. 32 ; 42 L. J. (Ch.) 107 ; 27 
 
 (3) Tool V. Great Western Bailw. L. T. (N. S.) 521. 
 Co., 39 L. J. (Oh.) 562 ; 18 W. R. (6) lb. 
 
 825; 22 L. T. (N. S.) 781. 
 
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companies. 
 
 348 -WATERWORKS AND CANAL COMPANIES. 
 
 Pabt I. below, to compel the company to purchase his interest in the 
 
 ChAPTEB VII. ' , ■■,-,-,-, r., 
 
 Sect. 2. Stream, but only to compensation under the Lands Clauses Con- 
 solidation Act, s. 68, for the stream injuriously affected (1). 
 . 2. The Waterworks Clauses Act, 1847 (10 <fe 11 Vict. c. 17), 
 extended by the Waterworks Clauses Act, 1863 (26 & 27 Vict. 
 c. 93), places the taking of streams upon the same footing as the 
 taking of lands under the Lands Clauses Consolidation Act ; and 
 a Court of Equity will restrain a waterworks company from diyert- 
 ing a stream belonging to a plaintiff, without first paying com- 
 pensation for the^same, or making a deposit and giving a bond in 
 accordance with the provisions of the Lands Clauses Consolidation 
 Act (2). 
 Canal 3. If a landowner sanction the formation of a canal, neither he 
 
 nor his devisee is entitled in Equity to obtain possession of the 
 land [covered by the canal, nor to interfere with the use thereof, 
 but only to a fair compensation ; and persons who buy the property 
 with notice in the conditions of sale as to the canal, are equally 
 bound by the same equity (3).- 
 
 4. If a canal company, having power by Act of Parliament to 
 raise an embankment to a certain height, exceed that height, a 
 neighbouring landowner is not, on account of the possibility of 
 injuring his lands, entitled to an injunction against the company, 
 but there is a right to such an injunction in the Attorney-General 
 on behalf of the public (4). A canal company is entitled to re- 
 strain the pulling down of a gate and waste-way of their canal (5). 
 A Court of Equity will enjoin the proprietors of a canal from 
 obstructing the use of a towing-path, which the public has a right 
 to use as such (6). 
 
 (1) Bush V. Trowlridge Waterworks 4 Jur. (N. S.) 1, 671 ; 27 L. J. (Ch.) 
 Co., L. B. 10 Ch. 459 ; 23 W. B. 330, 625. 
 
 641 ; 32 L. T. (N. S.) 182 ; 33 L. T. (4) Ware v. Begent's Canal Co., 
 
 (N. S.) 137 ; L. R. ly Eq. 291 ; 44 L. J. 3 De G. & J. 212 ; 5 Jur. (N. S.) 25 ; 
 
 (Ch.) 235, 645. 28 L. J. (Oh.) 153. 
 
 (2) Ferrand v. Bradford {Mayor, (5) The Society, &c. v. Tlie Morris, 
 &c.), 2 Jur. (N. S.) 175. &c., 2 Halst. (Ch.) 252 ; 1 Halst. (Ch.) 
 
 (3) Beaufort (Duke of) v. Patrick, 203 (Amr.). 
 17 Beav. 60; vide Somersetshire Coal (6) Bosley v. Susquehanna, <fcc., 3 
 Canal Go. v. Barcourt, 24 Beav. 571 ; Bland. 63 (Amr.). 
 
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INSURANCE COMPANIES— BANKING COMPANIES— BANK OF ENGLAND. 349 
 
 Sect. 3. Insurance Oompcmies. Pabt ii. 
 
 Ohaptek VII. 
 
 1. If it appear that it is usual and advantageous for insurance 
 and other joint stock companies to make certain payments, al- 
 though not strictly bound to do so, such payments are a mode of 
 carrying on the business with which a Court of Equity will not 
 interfere. And in the case of insurance companies — although 
 the policies of the insurance company contain an express exception 
 of the losses on account of which such payments are made, the 
 payments, being conducive to the welfare of the society, are a 
 legitimate mode of promoting the objects of the concern, and the 
 Court will not interfere to restrain them (1). 
 
 Sect. 4. Banking Companies — Bank of England. 
 
 1. If it appear that an informal mode of transacting the busi- Banting com- 
 ness of a banking company established under the 7 Geo. 4, c. 46, P*"^^^" 
 has existed ever since the formation of the company, the directors 
 cannot set up their own want of observance of the formalities re- 
 quired by their deed of settlement, as a ground on which to fix a 
 person with liability as a continuing shareholder, and their course 
 of dealing will bind them; and original transfers of shares, 
 though invalid at Law for want of a proper consent of a board of 
 directors to the transfer, according to the provisions of the settle- 
 ment, will yet, under such circumstances, be supported in Equity, 
 and the Court will restrain an attempt to make such a person 
 liable as a partner, and will restrain execution on a judgment at 
 Law obtained against him (2). If by the terms of a deed of 
 settlement of a bank, all transfers of shares therein are expressly 
 made subject to the approval of the court of directors, there is no 
 doubt that the company must exercise their right of approval 
 reasonably (3). But the question whether a board of directors is 
 
 (1) Tauntonv.RoyallnsuranceGo., vide Taylor -v. Eughes, 7 Ir. Eq. Rep. 
 2 H. & M. 135. 528. 
 
 (2) Ba/rgate v. Shortridge, 5 H. L. (3) Rohinson v. Chartered Mercan- 
 C. 297; 24 L. J. (Oh.) 457; Short- tile Bank of India, London, and China, 
 ridge v. Bosanquet, 16 Beav. 84 ; et 14 W. R. 71. 
 
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350 BANKING COMPANIES— BANK OF ENGLAND. 
 
 Pabt II. justified, by the facts of the case, in refusing either to permit the 
 Sect. 4. transfer of the shares, or to purchase them for the company, is a 
 question to be tried in Equity (1). 
 
 2. The authority to issue an injunction against a bank, on 
 the application of the bank commissioners (U. S.), and to make 
 such injunction perpetual, as set forth in Gen. Stats., c. 57, s. 7, is 
 very broad and comprehensive. It is not limited to cases where 
 the corporation is insolvent, or its further contiauance in business 
 will be hazardous to its creditors ; but extends to all cases where 
 a bank has exceeded the powers conferred on it, or has failed to 
 comply with any of the rules, restrictions, or conditiens provided 
 by law for its regulation and management ; nor is the nature of 
 the injunction defined or limited by any legislative restriction. 
 This is left to be determined by a sound judicial discretion. The 
 
 • object of conferring this very extensive jurisdiction ia Equity, 
 
 over this class of corporations is obvious. The nature of the im- 
 portant powers and duties with which they are intrusted, renders it 
 expedient and necessary that they should be subjected to careful 
 supervision, and that any irregularity or illegality in their mode of 
 conducting business should be promptly checked and prevented (2). 
 
 3. Where a lien and power of sale upon and over the shares 
 are given by charity to a bank, for debts due from the stock- 
 holders to the bank, Equity will enjoin a sale, or, under equitable 
 circumstances, set aside a conveyance of shares attempted or 
 made by the bank against the will of an insolvent stockholder, for 
 a debt really due to a director, under colour that it is due to the 
 bank ; such sale being a fraudulent abuse of a statute power 
 (U. S.), and a fraudulent attempt, without the authority of the 
 stockholder, to give preference amongst his creditors (3). 
 
 Bank of Eng- 4. If the Bank of England, having notice of a bill filed in 
 Chancery, refuse to permit a transfer of stock, the Court, though 
 there is no injunction, will order that they should permit the trans- 
 fer on a certain day, unless the plaintiff obtain an injunction in 
 the meantime (4). Where money in the public funds is the sub- , 
 
 (1) Taft V. ffarrison, 10 Hare, 489. 4 E. I. 372 (Amr.). 
 
 (2) Per Bigelow, C.J. ; Com. v. Bank, (4) Boss v. Shearer, 6 Madd. 1 ; 5 
 &c., 4 Allen, 8, 9 (Amr.). Madd. 458. 
 
 (3) Seagreaves v. Railroad Bank, 
 
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 land. 
 
BANKING COMPANIES— BANK OF ENGLAND. 351 
 
 ject of a suit to which the bank is made a defendant, the Court Pakt II. 
 will not, on the application of the bank, make any order on the liti- Seot. i. 
 gating parties to restrain them from proceeding at Law against 
 the bank to compel a transfer, but the bank must file a bill of 
 interpleader (1). 
 
 5. Where money has been invested by a bankrupt under a fic- 
 titious name, in order to defeat his creditors, the bank will be 
 ordered to erase such name, and insert the name of the bank- 
 rupt (2). The Bank of England are not to look beyond the legal 
 title to the trusts of a will, and therefore cannot prevent an exe- 
 cutor from selling out or transferring stock into his own name (3) ; 
 and though a residue is specifically given, the bank has no right 
 to restrain an executor from transferring the funds (4). 
 
 6. The Court will not direct the Bank of England to remove 
 a distringas from stock belonging to a partnership firm, on an ap- 
 plication of a defendant, the surviving partner (5). Nor will 
 the Court interfere to require the bank to transfer money which 
 they withhold, on a bill filed by the representative of a deceased 
 partner against survivors of the firm, even for the purpose of 
 paying the partnership debts (6). 
 
 7. The Court will grant an injunction against a London joint 
 stock bank and their agents to restrain the acceptance of bills of 
 exchange payable on demand, or at less time than six months from 
 the acceptance thereof, as being. a violation of the exclusive privi- 
 leges of the Bank of England within the 3 & 4 Will. 4, c. 98, s. 3 (7). 
 
 8. The Court will not compel the Bank of England to accept 
 such evidence of death as, in uncontested cases, would be considered 
 sufiicient by the Court of Chancery. The Bank has a discretion to 
 exercise for its own protection, and the Court will not compel it, 
 when exercising that discretion bond fide, to depart from its own 
 settled practice (8). 
 
 (1) Birch V. Oorhin, 1 Cox, 144 ; (5) Toulmin v. Copeland, 7 Price, 
 vide Birch v. Corhyn,, 1 Bro. 0. C. 631. 
 
 571. (6) lb., 6 Price, 405. 
 
 (2) Oreen v. Bank of England, 3 (7) Booth v. Bank of England, 7 01. 
 y. & C. 722. & F. 509 ; West, 298 ; Bank of Eng- 
 
 (3) Bank of England v. Pa/rsons, land v. Booth, 2 Keen, 466. 
 
 5 Ves. 665. (8) Pvosser v. Bank of England, 
 
 (4) tBank of England v. Moffatt, Ij. E. 13 Bq. 611 ; 41 L. J. (Ch.) 327 ; 
 3 Bro. C. C. 260. 20 W. B. 362 ; 26 L. T. (N. S.) 60. 
 
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352 COMPANIES IN GENERAL. 
 
 Paet II. Sect. 5. Companies in general. 
 
 OHAFTXiB V JLLi 
 
 1. Acts of Parliament for making canals, railroads, &c. ; are 
 powers given by Parliament over the land of the different pro- 
 prietors through whose estates the works are to proceed. Each 
 proprietor, therefore, has a right to have the power strictly and 
 literally carried into effect as regards his own lands, and also has 
 a right to require that no variation shall be made to his prejudice. 
 But if the Act is faithfully carried into execution as regards his 
 own lands, he cannot, on the mere ground of a variation which is 
 not injurious to himself, and which was made with the consent of 
 others, obtain from a Court of Equity an injunction to stay the 
 proceedings (1). 
 
 2. In matters strictly relating to the internal management of a 
 company, cAz^en though the course adopted is not within the terms 
 of the instrument of foundation, a> Court of Equity will not inter- 
 fere (2). But such a Court will interfere with the internal affairs 
 of joint-stock companies, by granting an injunction and appoint- 
 ing a receiver, where such companies are in a condition in which 
 there is no properly constituted governing body, or where there 
 are such dissensions in the governing body that it is impossible 
 to carry on the business with advantage to the parties interested,; 
 but it will interfere to as small an extent as possible (3). 
 
 3. If the matters complained of, are plainly beyond the powers 
 of the company, and are inconsistent with the object for which the 
 company was constituted, the Court will interfere at the instance 
 of the minority, to prevent the act complained of from being 
 carried out (4). 
 
 4. But it is clear that with regard to everything that is within 
 the powers of a joint stock company, the majority of shareholders 
 have power to deal with the assets of the company, and to 
 bind the minority (5). 
 
 (1) Lee V. Milner, 2 Y. & C. Ex. E. 2 Haie, 492 ; Mozley v. Alston, 1 Ph. 
 611, 618. 800. 
 
 (2) Gregory v. Patchetf, 10 Jur. (3) Featherstone v. Cooke, Trade 
 (N. S.) 1118 ; 13 W. E. 34 ; et vide Auxiliary Co. v. Vickers, L. E. 16 Eq. 
 Stevens v. South Devon Eailw. Co., 298, 301, 305. 
 
 9 Hare, 313 ; Lord v. The Governors (4) Gregory v. Patchett, 10 Jur- 
 
 and Company of Copper Miners, 2 Ph. (N. S.) 1118 ; 13 W. E. 34. 
 741 ; 1 H, & T. 85 ; Foss v. Earhottle, (5) Australian Awcilia/ry 
 
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COMPANIES m GENERAL. 353 
 
 5. If it appear that it is usual and advantageous for a joint Past II. 
 stock company to make certain payments, although not strictly ^8™!' 5. 
 
 bound to do so, such payments are a mode of carrying on the 
 
 business with which a Court of Equity will not interfere; the 
 payments being conducive to the welfare of the society are a 
 legitimate mode of promoting the objects of the concern, and 
 
 the Court will not interfere to restrain them (1). Though a trans- 
 action be idtra vires, or improper, an acquiescence for a long 
 period, as for instance six years, on the part of dissentient share- 
 liolders, will preclude them from impeaching it. Shareholders 
 cannot be permitted to lie by, sanctioning, or by their silence 
 acquiescing in, an arrangement which is ultra vires of the com- 
 pany, watching the result, and, if it be favourable and profitable 
 to themselves, to abide by it and insist upon its validity, but if it 
 prove unfavourable and disastrous, then to institute proceedings to 
 set it aside (2). 
 
 6. A Court of Equity will not restrain a company from doing 
 an act within the scope of its objects, on the ground that if the 
 company does that act, the doing of it may incapacitate the 
 company from performing something else, which is also within 
 the scope of its objects (3). A simple contract creditor of a com- 
 pany is not entitled to restrain the company from dealing with 
 their assets as they please, on the ground that they are diminish- 
 ing the fund for payment of his debt (4). A shareholder who 
 seeks to restrain a company from doing an act ultra vires, must 
 shew, by distinct and definite averments, the illegality of the 
 acts (5). Although it is the undoubted right of every share- 
 holder in a company to prevent the directors from exceeding 
 their powers, still, where it appears that a plaintiff is merely a 
 puppet in the hands of others, not shareholders in the company, 
 
 Clipper Co. v. Mounsey, 4 K. & J. (2) Oregory v. Pachett, 10 Jur. 
 
 V33 ; 27 L. J. (Cli.) 729 ; 4 Jur. (N. S.) 1118 ; 13 W. R. 34. 
 
 (N. S.) 1224 ; vide Exeter and Credi- (3) Syers v. Brighton Brewery Co., 
 
 ton Railw, Co. v. Bullen, 5 Railw. 11 L. T. (N. S.) 560. 
 
 Cas. 211 ; 16 L. J. (Ch.) 449 ; 11 Jur. (4) Mills v. Northern Railw. of 
 
 527, 532. Buenos Ayres Co., 23 L. T. (N. S.) 
 
 (1) Taunton X. Royal Insurance Co., 719. 
 
 2H. &M. 135. (5) lb. 
 
 2 A 
 
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354 COMPANIES IN GENERAL. 
 
 Paet II. who have indemnified him against the costs of the suit, the Court 
 Sect. 5. will not interfere by an interlocutory injunction (1). 
 
 7. If an incorporated company employs its powers and funds for 
 purposes not within the scope of its charter, a stockholder may 
 have a remedy by injunction. But independently of its thus ex- 
 ceeding its powers, the will of a majority, properly expressed at a 
 legal meeting, must control (2). A misapplication of money con- 
 trary to the charter of articles of agreement, is a breach of trust 
 and fraud on the part of the majority towards the minority, who 
 have a remedy by injunction ; intentional wrong or actual fraud 
 is not necessary to sustain a bill for relief (3). Where it is clearly 
 shewn that a public company is exceeding its powers, a Court of 
 Equity will not refuse to interfere by injunction (4) ; though this 
 must be taken as a general rule only, and does not apply where 
 the damage is slight (5), or damages at Law are a sufficient and 
 proper remedy (6), or the trespass is temporary (7). 
 
 8. It is quite sfettled, that a company established for one purpose 
 cannot, against the will of any dissentient minority, however small, 
 undertake a business foreign to the objects of the original com- 
 pany. Thus a railway company cannot become a steam-boat 
 company, cannot carry on a brewery, or the like. It is also 
 settled that no portion of the funds subscribed for the original 
 purpose can be applied in procuring or in endeavouring to pro- 
 cure the means of carrying on another and different undertaking, 
 such as soliciting a bill in Parliament to confer on the company 
 the powers necessary for that purpose (8). 
 
 9. A Court of Equity will not interfere to prevent the directors 
 of a limited company from commencing business, on the ground 
 that all the nominal capital has not been subscribed for, nor on 
 
 (1) Filder v. London, Brighton, and (5) Warden of Dover Harbour v. 
 South Coast Railw. Co., Barchard v. South Eastern Railw. Co., 9 Hare, 
 Brighton, Uchfield, and Tunbridge 497. 
 
 Wells Railw. Co., 1 H. & M. 489. (6) Turner v. Blamire, 1 Drew. 
 
 (2) Oifford v. New Jersey, &c., 2 409. 
 
 Stockt., 171 (Amr.). (7) Standish v. Mayor of Liverpool, 
 
 (3) March v. Eastern, dec, 43 N. H. 1 Drew. 1 ; et vide Wood v. Charing 
 515 (Amr.). Cross Railw. Co., 33 Beav. 290. 
 
 (4) River Dun Navigation Co. v. (8) Lyde v. Eastern Bengal BaUw. 
 North Midland Railw. Co., 1 Eailw. Co., 36 Beav. 10, 14. 
 
 Cas. 135. 
 
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COMPANIES IN GENERAL. 355 
 
 the ground that the business actually commenced is on a much Part II. 
 smaller scale than that contemplated by the prospectus, where seot. 5. 
 there is no allegation of fraud, or of improper or mala fide manage- 
 ment(l). But a payment of interest on the amount paid up of 
 the share capital, to the shareholders, before any profits have been 
 realised, out of capital or borrowed moneys, even though made in 
 pursuance of a resolution at a meeting, or by a majority of the 
 shareholders, is ulira vires, and will be restrained by injunction, 
 as being, in effect, a lesseiiing and repayment of the capital to 
 the prejudice of the creditors (2). If parties who have a majority 
 of shares in a company, make an arrangement, by which they deal 
 with matters affecting the whole company, the interest in which 
 belongs to the minority as well as to the majority, in consideration 
 of their obtaining for themselves certain advantages, the majority 
 putting something into their pockets at the expense of the mi- 
 nority ; the minority have a right to have their share of the 
 benefits ascertained for them in the best way in which the Court 
 can do it, and given to them. Although it may be quite true 
 that the shareholders of a company may vote as they please, 
 and for the purpose of their own interests, yet the majority of 
 shareholders cannot sell the assets of the company and keep the 
 consideration, but must allow the minority to have their share of 
 any consideration which may come to them (3). 
 
 10. A Court of Equity will, at the instance of the dissatisfied 
 shareholders of a company, restrain further proceedings under an 
 arbitration clause in an agreement entered into by two public 
 companies, where the principal agreement is clearly ultra vires ; 
 and if directors of a company affix the company's seal to an agree- 
 ment, part of which is ulira vires, the Court will, at the suit of 
 dissenting shareholders, declare the agreement, so far as it pur- 
 ported to bind the company to the clauses ultra vires, void ; and as 
 to that part will restrain the other parties to the agreement from 
 enforcing their rights (4). 
 
 (1) Macdougall v. Jersey Imperial L. J. (Ch.) 330 ; 22 W. E.' 257, 396 ; 
 
 Botel Co., 2 H. & M. 528 ; 34 L. J. (Oh.) 30 L. T. (N. S.) 269. 
 
 28;12'W.H.1142;10Jm-.(N.S.)1043. (i) Maunsell v. Midland Great 
 
 (Z) lb. Western {Ireland) Bailw. Co., 1 H. & 
 
 (3) Uenier v. Hooper's Telegraph M. 130 ; 32 L. J. (Ch.) 513 ; 8 L. T. 
 
 Works, L. R. 9 Ch. 350, 353, 354 ; 43 CN. S.) 347. 
 
 2 A 2 
 
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356 COMPANIES IN GENERAL. 
 
 Past II. n. A public company exceeding its legislative limits, cannot be 
 
 Sect. 5. restrained by injunction, at the suit of a co-rival company, which 
 
 does not allege that it has sustained some private injury by such 
 
 excess, though the acts complained of may be injurious to the 
 
 public interests (1). 
 
 12. A Court of Equity will restrain a company and its directors 
 from doing an act which would occasion a forfeiture of the com- 
 pany's charter (2). 
 
 13. Equity, in exercising its jurisdiction to prevent companies 
 entrusted with large powers by the Legislature, from acting in a 
 manner prejudicial to the rights of individuals on the one hand, 
 will, on the other, be careful not to assist persons in availing 
 themselves of any omission in such powers, for the purpose of 
 giving effect to exorbitant claims against the companies (3). 
 
 14. Under the Companies Act, 1862, sect. 47, a company not 
 otherwise having this power, has not power to issue negotiable 
 instruments, and therefore to accept bills of exchange ; but that 
 power exists where it is conferred by general words in the memo- 
 randum and articles giving a power to the directors to do all 
 things and make all contracts, which, in their judgment, are neces- 
 sary and proper for the purpose of carrying into effect the object 
 mentioned in the memorandum ; and the Court will not restrain 
 an execution under a judgment obtained upon bills of exchange 
 issued by a company, where that power has been conferred by 
 such general words (4). 
 
 15. A Court of Equity will not, at the instance of a shareholder, 
 restrain a joint stock company {gua corporate body) incorporated 
 by Acts of Parliament which prescribe its constitution and objects, 
 from applying in its corporate capacity to Parliament, and from 
 using its corporate seal and resources to obtain the sanction of the 
 Legislature to the remodelling of its constitution, or to a material 
 alteration and extensions of its objects and powers (5). And it 
 
 (1) Stockport District Waterworks Co., 1 Eailw. Gas. 616. 
 
 Co. V. Manchester {Mayor, &c.), 11 (4) Peruvian Railws. Co. v. Thames 
 
 W. E. 156. and Mersey Marine Insurance Co., 
 
 (2) Rendall v. Crystal Palace Co., L. R. 2 Oh. 617 ; 36 L. J. (Ch.) 864. 
 4 K. & J. 326 ; 27 L. J. (Ch.) 397. (5) Ware v. Grand Junction Water- 
 
 (3) Bell V. Hull and Selhy Railw. toorks Co., 2 Euss. & My. 470. 
 
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COMPANIES m GENERAL., 357 
 
 would seem that tlie right of making such, an application is inci- Pabt II. 
 dent to a corporation of this nature (1). °Seot^5. ' 
 
 16. A Court of Equity will not compel specific performance of 
 an agreement by a company to employ a person as a broker : such 
 a Court cannot compel an agent to fulfil his duties, and if the con- 
 tract is at an end, by having been broken by the company, it is 
 impossible to carry out that which is merely an adjunct to the 
 principal relief sought, namely, an injunction to restrain the com- 
 pany from advertising, in breach of the stipulation contained in 
 the agreement, the name of any other person than the plaintiff as 
 their broker (2). 
 
 17. A public company taking land under compulsory powers is 
 bound to give the landowner precise information of the quantity 
 of land to be taken, and the way in which it is to be used ; and it 
 is incumbent on the company to prove clerly and distinctly from 
 their Act the existence of the powers they claim a right to exercise ; 
 and if there is any doubt with regard to the extent of the powers 
 they claim, that doubt should undoubtedly be for the benefit of 
 the landowner (3). Persons obtaining from the Legislature powers 
 to interfere with the rights of property for their own purposes 
 (whether of a local nature or merely private) are bound strictly to 
 adhere to the powers so conceded to" them — to do no more than 
 the Legislature has sanctioned, and to proceed only in the mode in 
 which the Legislature has pointed out ; but (except in a proceed- 
 ing at the instance of the Attorney-G-eneral), any one seeking the 
 assistance of a Court of Equity is bound to shew that he has an 
 interest in preventing the defendants from doing what is, in fact, 
 or may well be called, a violation of their contract with the Legis- 
 lature, he must shew not only that the defendants are committing, 
 or intent to commit, a wrong, but also that the wrong complained 
 of does occasion, or will occasion, loss or damage to himself ; that 
 he has a special or private interest in confining the defendants 
 within the limits of their parliamentary powers (4). Ownership 
 
 ' (1) Wo-re V. Orand Junction Water- (3) Simpson v. South Staffordshire 
 
 works Co., 2 Euss. & My. 470. WaUrworks Co.,* De G . J. & S. 679, 686 ; 
 
 (2) Brett v. East India and London 34 L. J. (Ch.) 380 ; 11 Jur. (N. S ) 453. 
 
 Shipping Co., 12 W. B. 526 ; vide (4) Liverpool (Mayor of, <&c.) v. 
 
 Mair v. Himalayan Tea Co., 11 Jur. Charley Waterworks Co., 2 De G. M. 
 
 (N. S.) 1013 ; 14 W. B. 165. & G. 852. 
 
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358 COMPANIES IN GENERAL. 
 
 Part II. acquired in land by a public company under tbeir compulsory 
 Sect. 5. powers, for the purpose of their works, is a qualified ownership, to 
 be restricted to the purposes expressed in the Act, those purposes 
 being of the essence of the contract ; and therefore the landowner 
 whose comfort and enjoyment of the remainder of his estate are 
 affected by the company applying the ownership for other pur- 
 poses not contemplated by the Act, is entitled to an injunction! to 
 restrain the use of the land for such purposes (1). The rights of 
 ownership in fee conferred on public companies by Act of Parlia- 
 ment are, by the settled doctrine of the Court of Chancery, as a 
 Court of Equity, restricted and qualified by the terms of the legis- 
 lative contract (2). And where purchases of land are made under 
 the compulsory powers of an Act of Parliament, the purchasers 
 on the one hand, and the vendor on the other, have a right to con- 
 fine the exercise of the ownership to the specified purpose (3). Still 
 unless an actual injury results to a private individual himself, from 
 the excessive exercise of the powers of a company, he is not en- 
 titled to an injunction ; and where there has been an excess of the 
 statutory powers granted to a company, but no injury has been 
 occasioned to any individual, and there is none which is imminent 
 or of irreparable consequence, the Attorney-General can alone 
 obtain an injunction to restrain the exorbitance (4). 
 
 18. A Court of Equity will not allow bodies to whom Parlia- 
 ment has given powers of making compulsory purchase of land, 
 to avail themselves of their parliamentary powers, by taking 
 land which they do not require for a lond fide purpose sanctioned 
 by their Act of Parliament ; and it is the duty of every Court 
 to keep such companies strictly within their Act of Parlia- 
 ment (5). But although it may be the case that subsequent 
 events have given the company a title which they had not in 
 the beginning, yet, if it appear that they have at the time of 
 the application to the Court, the right to take the land, it would 
 
 (1) Bostock V. North Staffordshire 3 De Gr. & J. 212 ; 5 Jur. (N. S.) 25; 
 Railw. Co. ,5 De G. & Sm. 584; 3 Sm. 28 L. J. (Ch.) 153; et vide Att-Oen. 
 & G. 283 ; 2 Jur. (N. S.) 248 ; 3 Jur. v. Great Northern Bailw. Co., 29 L. J. 
 (N. S.j 245 ; 26 L. J. (Ch.) 325. (Ch.) 794. 
 
 (2) lb. (5) Webb v. Manchester and Leeds 
 
 (3) lb. Raaw. Co., 4 My. & Or. 116. 
 
 (4) Ware v. Regent's Canal Co., 
 
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COMPANIES IN GENERAL. 359 
 
 seem that the Court would not interfere to prevent them exercising Pabt ii. 
 j.1. i • ui /I \ Chapter VII. 
 
 that right (1). , Sect. 5. 
 
 19. So where persons have especial powers conferred on them by 
 Parliament for effecting a particular purpose, they cannot be al- 
 lowed to exercise those powers for any purpose of a collateral 
 kind ; therefore, a company authorized (making due compensation) 
 to take compulsorily the lands of any person for a definite object, 
 may be restrained by injunction from any attempt to take them 
 for another object. And where the Legislature has conceded power 
 to a body of adventurers for a certain purpose, as, for example, the 
 formation of a railway, such a body must shew some ground for 
 the concession, and the Legislature has no concern with its means 
 for obtaining the funds to carry its declared objects into effect, 
 and in order to effect them it must not exceed the limits of its 
 powers. But the case is different where an existing public body, 
 such as the corporation of a city, is entrusted by the Legislature 
 with the duty of making public improvements in its city, the 
 powers thus entrusted to it for such a purpose will not be subject, 
 as in the other case, to a strict and restrictive construction (2). 
 
 20. If a Court of Law, acting under the Joint Stock Companies 
 Registration Act, 7 & 8 Vict. c. 110, has given to one shareholder 
 judgment against a company without assets, a Court of Equity 
 will not prevent that judgment from being enforced against another 
 shareholder, for a Court of Common Law has full jurisdiction to 
 deal with the case (3). 
 
 21. If directors act on a void forfeiture of shares, the holder is 
 entitled to an injunction restraining them from enforcing the for- 
 feiture, and to have the same cancelled (4). 
 
 22. Directors of a public company will not be allowed to pur- 
 chase the debt of a general creditor of the company, and then to 
 sue a single unwilling shareholder in his name, so as to enforce 
 contribution against a particular shareholder, who is not willing 
 to bear his share of the losses (5). The principle is, that where it 
 is not in fact the action of the creditor, but of the directors, who 
 
 (1) Webb V. Manchester and Leeds (3) Eardinge v. Webster, 1 Dr. & 
 Bailw. Co., 4 My. & Cr. 116. Sm. 101 ; 6 Jur. (N. S.) 88. 
 
 (2) Oalloway v. London {Mayor, (4) Sweney v. Smith, L. B. 7 Eq. 
 &c.), L. R. 1 H. L. 34 ; 11 Jur. (N. S.) 324 ; 88 L. J. (Oh.) 446. 
 
 474 ; 12 Jur. (N. S.) 747. (5) Bech v. Lean, 3 Jur. (N. S.) 14. 
 
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360 COMPANIES IN GENERAL. 
 
 PaetII. are setting the creditor in motion, a Court of Equity will not 
 Sect. 5. ' allow contribution to be obtained in that manner — it must be done 
 in a direct way (1). But the Court will not restrain a creditor of 
 a joint stock company from enforcing payment of his debt against 
 an individual shareholder, on the ground merely that the creditor 
 was himself a shareholder, and therefore liable to contribute; 
 such interference would defeat the rule at Law, which, for con- 
 venience, enables creditors of such companies to recover their 
 debts by that form of proceeding, leaving them, of course, to their 
 right to contribution against their co-partners (2). 
 
 23. Where there is no admission of a trust so as to entitle 
 plaintiffs to an order for payment of money into Court, a Court 
 of Equity has not jurisdiction, upon an interlocutory application, 
 to restrain the directors of a company from parting with moneys 
 which prima facie belong to that company, with which, by the 
 articles of the company, the directors have authority to deal, the 
 questions of trust and right to the money having to be decided 
 at the hearing of the cause (3). 
 
 24. A Court of Equity will restrain a sale by mortgagees who, 
 being directors of the company, have become mortgagees in viola- 
 tion of the Joint Stock Companies Act, 1856 (4). 
 
 25. A Court of Equity will not permit the provisional directors 
 of a joint stock company, without the authority of the plaintiff, to 
 publish a prospectus stating him to be a trustee of the company ; 
 on the ground that by so doing the plaintiff would be exposed to 
 risk by the act of the defendants in using his name, and that he 
 would be left to get rid of his responsibility with regard to money 
 placed in his name at the bankers of the company to his account 
 as trustee as he could (5). 
 
 26. A statement true to the letter, but in substance a misrepre- 
 sentation put forward to mislead the public, is sufficient ground for 
 cancelling an allotment of shares to a person who has applied fur 
 shares on the faith of such statement, and his deposit on the shares 
 
 (1) Beck V. Bean, 3 Jur. (N. S.) 14. lins, 12 W. B. 331 ; Southampton Boat 
 
 (2) Sheam v. Smith, 2 Ph. 726. Co v. Pinnoch, 12 W. B. 330; Smith- 
 
 (3) Bank of Turhey v. Ottoman Co., ampton Boat Co. v. Muntz, 12 W. B. 
 L. R. 2 Eq. 366 ; 14 L. T. (N. S.) 545 ; 330. 
 
 14 W. B. 819. (5) Mouth v. Welder, 10 Beav. 561. 
 
 (4) Southampton. Boat Go. v. Eaw- 
 
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COMPANIES IN GENERAL. 361 
 
 will be directed to be repaid to him, his name removed, and an in- p^^rt II. 
 junction granted to restrain an action for calls in respect of the g™^ 5. ' 
 shares (1). 
 
 27. If there is misrepresentation in a prospectus that will over- 
 throw the contract between a shareholder and the company ; and if 
 the statement relates to the directors' own acts, they must be fixed 
 with a guilty knowledge of the misrepresentation. And such a share- 
 holder is entitled to repayment of his deposit and allotment money 
 of the shares, to have his name removed from the register of share- 
 holders, and to an injunction to restrain the company from taking 
 further proceedings on a judgment obtained in an action upon a 
 call (2). ' / 
 
 28. A person who has been induced to take shares in a company, 
 on the faith of a statement in the prospectus as to the nature of 
 a property contracted to be purchased, which turns out to be 
 untrue, is entitled to an interlocutory injunction to restrain an 
 action for calls, although the directors have been themselves de- 
 ceived, and have been guilty of no wilful fraud (3). But a person 
 seeking to set aside a voidable contract to take shares in a company, 
 on the ground of misrepresentation, must take steps for that 
 purpose immediately on discovery of the misrepresentation ; delay 
 will disentitle him to repudiate the shares, either as between 
 himself and the creditors of the company, or as between himself 
 and the other shareholders (4). 
 
 29. The misconduct of directors of a company in inducing a 
 a person to become an allottee of shares in the company by im- 
 proper concealment and unfounded representation, is not a vice 
 that taints the share itself into whosesoever hands it passes, but 
 the share itself may be purified by the conduct of the allottee or 
 any subsequent holder of the share ; and if the allottee is barred 
 by time or condonation, the transferee is bound also by the same 
 bars (5). But the only amount of delay which can be a bar to 
 
 (1) Boss V. Estates Investment Co., (3) Smith v. Beese Biver Silver 
 L. E. 3 Oh. 682 ; 37 L. J. (Ch.) 873 ; Mining Go., L. R. 2 Eq. 264 ; 12 Jur. 
 36 L. J. (Oh.) 54 ; 16 W. R. 1151 ; 9 (N. S.) 616 ; 14 W. R. 606. 
 
 L. T. (N. S.) 61. (4) Ogilvie v. Currie, 37 L. J. (Ch.) 
 
 (2) Henderson v. Lacon, L. R. 5 Eq. 541 ; 16 W. R. 769 ; 18 L. T. (N. S.) 593. 
 249 ; 18 L. T. (N. S.) 527 ; 16 VV. R. (5) Peek v. Gurney, h. R. 6 II. L. 
 3*^8; vide In re Beese Biver Co., 377,384,402; L.R. 13 Eq. 79, 117,118; 
 Smith's Case, L. R. 2 Oh. 604. 43 L. J, (Ch.) 19; 41 L. J. (Oh.) 436. 
 
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362 COMPANIES IN GENEEAL. 
 
 Paet II. relief in such cases, is fixed by the Statute of Limitations. Such 
 Sect. 5. cases being similar to actions at Law for deceit ; no bar will arise 
 
 from delay unless the delay be such as would bring that statute 
 
 applicable to such cases into operation (1). 
 
 30. Although the books and papers of a company are the pro- 
 perty of its shareholders, and they are entitled to inspect them, 
 though there is a secrecy clause in the articles of association, and 
 though in the course of inspection they will become acquainted 
 with matters which should be kept secret ; yet it is their duty not 
 to divulge such information so acquired, and a Court of Equity 
 will restrain them by injunction from so doing (2). 
 
 31. If an incorporated company stands by and permits expen- 
 sive works to be executed at the spot where its premises are 
 situate and its operations carried on, the company must be con- 
 sidered, for all purposes of knowledge and acquiescence, to be in 
 the same position as a private individual (3). 
 
 32. Although the declaration of a chairman of the election of 
 directors of a company is prima facie evidence of the validity of 
 such election, yet if the declaration has been done by means of a 
 conspiracy, a Court of Equity will find its arm long enough to 
 deal with such a fraud (4). 
 
 33. If the specific acts complained of by one of the shareholders 
 of an incorporated company are not clearly such as, in the opinion 
 of a Court of Equity, it is incompetent to a majority of the share- 
 holders to sanction, and there is no allegation raising any case for 
 the interference of a Court of Equity with the exercise of rights 
 within the powers of the corporation, a Court of Equity cannot 
 assume jurisdiction in such a case, without opening its doors to all 
 parties interested in corporations and joint stock companies, or 
 private partnerships, who, although a small minority of the body 
 to which they belong, may wish to interfere in the conduct of the 
 majority {5). 
 
 (1) Peek V. Ourney, L. E. 6 H. L. (4) Wandsworth and Putney Oas 
 377, 384, 402 ; L. E. 13 Bq. 79, 117, Light and Coke Co. v. Wri^M, 18 
 118 ; 43 L. J. (Ch.) 19 ; 41 L. J. (Ch.) W. E. 728 ; 22 L. T. (N. S.) 404. 
 436. (5) Lord v. Governor, &c., of Copper 
 
 (2) Mc parte Brinsley, Ex parte Miners, 2 Ph. 740 ; 1 H. & T. 85 ; 2 
 Buchan, 36 L. J. (Ch.) 150. De G. & Sm. 308 ; vide Foss v. Ear- 
 
 (3) Lairds. Birkenhead Bailw. Co., bottle, 2 Hare, 493; Mozley v. AMon, 
 Joli. 500, 510 ; 29 L. J. (Ch.) 218. 1 Ph. 790, 800. 
 
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( 363 ) 
 
 PART III. 
 
 THE DOCTRINES AND PBINCIPLES OF THE LAW OP INJUNCTIONS 
 AS APPLICABLE TO THE VARIOUS SUBJECTS OP INJUNCTIONS, 
 WHERE IT IS NECESSARY TO RESTRAIN PROCEEDINGS IN 
 COURTS OF LAW AND OTHER COURTS. 
 
 CHAPTEE I. 
 
 The Docteines and Principles in Eesteaining Peoceedings 
 IN CooETS OF Law and othee Couets, as Applicable to 
 Keal Peopeety (including Leaseholds), 
 
 Sect. 1. Ejectment — Possession. 
 
 1. A Court of Equity will not grant an injunction to restrain Ejectment, 
 proceedings in ejectment before judgment has been obtained in 
 
 such proceedings (1), or except the defendant at Law give a com- 
 plete judgment at law (2) ; unless where parties are in trade, in that 
 case the Court will do so, to prevent the inconvenience which 
 would arise by the recovery of a judgment against them (3). But 
 the Court has no power to order a plaintiff to give judgment in the 
 ejectment (4). 
 
 2. To entitle a plaintiff to an injunction to stay an ejectment, 
 the statement of a legal inference not supported by the facts, 
 is not enough (5). 
 
 3. To entitle a plaintiff to stay proceedings in an ejectment, the 
 plaintiff must allege facts which raise an equity which will entitle 
 him to the injunction. If a party is in possession of an estate by 
 a good equitable title, and the legal estate, if not in him, is in 
 
 (1) Hudson V. Temple, 9 W. R. (3) Hudson v. Temple, ante. 
 
 ?43. (4) Brown v. JSfewall, 2 My. & Cr. 
 
 (2) Redmond v. Ooodall, 2 JoBes, 558. 
 
 812; vide Home v. Thompson, Sau. & (5) Brown v. Newall, 2 My. & Cr. 
 
 Sc. 615. 558, 569, 576. 
 
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364 EJECTMENT— POSSESSION. 
 
 Pabt III. another person as a constructive trustee for him, the party in pos- 
 Sect. 1. session is entitled to an injunction to restrain proceedings in eject- 
 ■ ment by the party who, if successful, would be his trustee, whether 
 
 the legal estate is in the party in possession "or not (1). If the 
 conduct of one person induces another to alter his conduct, that 
 will make a binding contract, therefore if a party in possession of a 
 leasehold house is told verbally that she shall have the house for life 
 upon the paynient of the ground rent and rates and taxes, and that 
 party abandons a previous intention of purchasing a business as a 
 means of livelihood, and remains in the house and maintains her- 
 self by means of the letting of lodgings. Equity will enforce such 
 a contract, as the circumstances of the case take it out of the 
 Statute of Frauds, and will restrain an action of ejectment to 
 recover possession of the house (2). 
 
 4. If an equitable tenant for life, in possession of the estate with 
 his lessee, commit waste and refuse to permit the trustee to examine 
 the condition of the land, the Court will not continue an injunc- 
 tion to restrain an action of ejectment by the trustee, even on the 
 plaintiff undertaking to cut no more timber and to permit the 
 inspection (3). The Court will restrain proceedings in an eject- 
 ment against a purchaser of a lease taken in execution under a 
 fi.fa. put into possession by the sheriff, but without an assignment 
 of the term (4). 
 
 5. If a yearly tenant, having the option of purchasing the pro- 
 perty, files his bill against the landlord for a specific performance 
 of the contract for sale, the Court will restrain ejectment by the 
 landlord, if the tenant will undertake to continue to pay the rent 
 without prejudice (5). But if a tenant has violated the conditions 
 of an agreement for a lease of a farm, under which he has taken 
 possession, the Court will not, upon a bill by the tenant for a 
 specific performance of the agreement, restrain an ejectment by 
 the landlord (6). There will be no specific performance of an 
 agreement to grant a lease where, had one been executed, the 
 lessor would have had a right to determine it for breach of cove- 
 
 (1) Crofts V. Middleton, 8 De G. M. (3) Pugh v. Faugham, 12 Beav. 517- 
 & G. 192 ; 25 L. J. (Ch.) 513. (4) Jones v. Eughes, 1 Hare, 383. 
 
 (2) Coles V. Pilkington, 23 W. R. (5) FykeY.Northwood,l.BesiV.152. 
 41 ; L. R. 19 Bq. 174, 177 ; 31 L. T. (6) Porrett v. Barnes, 2 L. J. (Ch.) 
 (N. S.) 423 ; 44 L. J. (Ch.) 381. 142. 
 
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EJECTMENT— POSSESSION. '365 
 
 nant (1). But an interlocutory inJHnction, obtained by a party in P-^»t Hi- 
 possession on a bill for specific performance of an agreement for a Sect. l. 
 lease, to restrain an ejectment, will be continued till the hearing 
 on an undertaking by the plaintiff to give judgment in the eject- 
 ment and paying rent into Court, though there are allegations in 
 the defendant's answer of the plaintiff's insolvency and breaches of 
 the agreement (2). There is a distinction as to an injunction to re- 
 strain ejectment between landlord and tenant upon an actual lease, 
 and upon a mere covenant for a lease ; in the latter case the Court 
 will grant no relief if the lease sought must contain a covenant 
 which would have been violated and against which no relief can 
 be had ; in the former case some ground is necessary, either by 
 the conduct of the lessor, or under the 4 Geo. 2, c. 28 (3). 
 
 6. The fact that there has been an agreement by the intended 
 lessee, in a contract to make a lease with an option to purchase, 
 will not disentitle the lessee to specific performance of a contract 
 to sell, where that contract is a distinct and separate part of the 
 agreement, and the Court will restrain an ejectment by the 
 vendor (4). The jurisdiction of a Court of Equity extends to re- 
 move any impediment to the fair trial of the real question at 
 Law, but not to the trial of the question; and it will restrain a 
 defendant from proceeding upon a judgment obtained by surprise, 
 and from setting up an agreement for a lease in any action or 
 other proceeding at Law in respect of the property (5). 
 
 7. If a receiver has been appointed of an estate, part of which 
 is copyhold, the Court will restrain an action of ejectment by the 
 lord against the terre tenant (6). 
 
 8. A Court of Equity will relieve a tenant who has allowed 
 judgment in ejectment for breach of covenants for non-payment of 
 rent, insurance, and repairs, to go by default, where the circum- 
 stances under which the judgment was obtained are such that it 
 cannot be considered either as a confession of the breach of cove- 
 nant or an adjudication that there had been any breach at all, and 
 
 (1) Gregory v. Wilson, 9 Hare, 683. (4) Oreen v. Low, 2 Jur. (N. S.) 
 
 (2) Boardman v. Mostyn, 6 Ves. 848. 
 
 467. (5) Griffith v. Edwards, 2 Jur. 
 
 (3) Lovat V. Lord Banelagh, 3 V. & (N. S.) 584. 
 
 B. 24. (6) Evelyn v. Lewis, 3 Hare, 472. 
 
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366 
 
 EJECTMENT— POSSESSION. 
 
 ^BT ui tlie Court of Equity is not satisfied that the acts alleged were in 
 Sect. 1. positive breach of any of the covenants, but such relief will be on 
 the terms of payment of the taxed costs at Law, the arrears of 
 rent, the amount due for repairs and insurance, and costs in Equity, 
 the defendant to account to the plaintiff for the rent received by 
 him (1). The Court will relieve against an ejectment for a breach 
 of covenant to repair, where the lessee is unable, from circum- 
 stances over which he has no control, to complete the repairs 
 within the time specified (2). 
 
 9. A Court of Equity will not interfere generally to restrain an 
 ejectment brought against a lessee for breaches of covenant in the 
 lease, except for breach in non-payment of rent (3). The lessee 
 in a building lease is responsible for the acts or omissions of the 
 persons he employs to do the work required by his covenants, and 
 he cannot shelter himself by saying that the workmen neglected 
 their duty. No equitable ground is thereby afforded for relieving 
 against the legal consequences of the breach of the covenant (4). 
 It is a clear principle that if there be breaches of several cove- 
 nants in a lease, and there be any one of them with respect to 
 which there exists no equitable ground for relief, although there 
 may be as to all the others the most unquestionable right to relief 
 in Equity ; a Court of Equity will not interfere to prevent a lessor 
 from recovering in an action of ejectment founded on those 
 breaches (5). A tenant cannot be allowed to dispute his land- 
 lord's title, therefore if a lessee is proceeded against in ejectment 
 by a claimant who disputes the title of the landlord, and is also 
 threatened with distress by the landlord, the tenant cannot re- 
 strain either the ejectment by the claimant, or the distress by his 
 landlord (6). 
 
 10. A Court of Equity will restrain an ejectment under a deed 
 of appointment obtained by a husband from his wife by undue 
 influence, oppression, &o. (7). 
 
 11. A surviving partner will be restrained from proceeding by 
 
 (1) Bamford y.' Greasy, 3 Giff. 675, 693. 
 681. (4) lb. 
 
 (2) Ba/rgent v. Thompson, 4 Griff. (5) lb., et vide Lovat v. Bandagk 
 473 ; 9 Jur. (N. S.) 1192 ; 7 L. J. 3 V. & B. 24. 
 
 (N. S.) 365. (6) Boman v. Moore, 4 Price, 5. 
 
 (3) Nokes v. Giblon, 3 Drew. 681, (7) Peel v. , 16 "Ves. 157. 
 
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EJECTMENT— POSSESSION. 367 
 
 ejectment to obtain possession of property, of which a joint lease ^^^''^ ^^■ 
 has been made to himself and his deceased partner (1). Sect. l. 
 
 12. "Where there has been acquiesence by the owner of land in 
 the construction of works on his land, the Court will restrain 
 an action of ejectment by him to recover the land, upon the terms 
 of the plaintiff giving judgment in the ejectment, and paying into 
 Court a sum not less than the utmost valuation of the land (2). 
 
 13. Where there is fraud, concealment, and acquiescence, to- 
 gether with conduct which creates an estoppel, a Court of Equity 
 will restrain an ejectment by the party guilty of this conduct (3). 
 
 14. An ejectment will be restrained on the ground of equitable 
 estoppel or implied trust (4). So an ejectment by an owner who 
 has stood by, or has actively promoted the construction of works 
 upon his land, or who is in a fiduciary position, will be perpetually 
 enjoined, and the value of the land will be ascertained (5). So, if 
 by consent, a party has, in Equity, sanctioned the formation of a 
 canal, he will not be entitled to obtain possession of the land 
 covered by the canal, but only to a fair compensation for the value 
 of the land. And persons who have purchased the property with 
 notice, as to the canal, are equally bound by the same equity (6). 
 Acquiescence by lessors in, with knowledge of, breaches of cove- 
 nant, and receipt of rent, will deprive them of their right to pro- 
 ceed to recover possession immediately, and the lessees will be 
 entitled to a reasonable time for restitution of works which have 
 been abandoned by them (7). If the proceedings and conduct of 
 a party are tantamount to a waiver of a right to curtesy out of 
 estates, he will not be entitled to an injunction to restrain an eject- 
 ment (8). 
 
 15. If a lease is made which is not warranted by a power to 
 make leases, but it is ratified and confirmed in Equity, by the 
 party who would . otherwise be entitled to the possession of the 
 lands demised, a Court of Equity will restrain an ejectment by 
 
 (1) Elliot V. Brown, 3 Sw. 489. (5) lb. 
 
 (2) Powell V. Thomas, 6 Hare, (6) Beaufort (Dulee of) v. Patrich, 
 300. 17 Beav. 60; 17 Jur. 682. 
 
 (3) Leary v. Rose, 10 Upper Canada (7) Whitehead v. Bennett, 9 W. E. 
 Law Journal, 272 (Ch.). 626 ; 4 L. T. (N. S.) 818. 
 
 (4) Trenton, &c. v. McKelway, 4 (8) Stone v. Godfrey, 18 Jur. 524. 
 Halst. (Ch.) 84 (Amr.). 
 
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368 EJECTMENT— POSSESSION. 
 
 Part III. that party, and compel him to confirm the lease (1). If a party 
 
 Chapter I * a •/ 
 
 Sect. 1. has derived an estate as heir to an ancestor, he is bound to make 
 
 " good the covenants in a lease by the ancestor, and wiU be decreed 
 
 to make a renewal of the lease, in pursuance of a covenant to 
 
 renew for ever (2). If a lease for lives renewable for ever expires 
 
 vyithout renewal, and the landlord brings ejectment, the tenant 
 
 ought not to dispute his title, but give consent for judgment and 
 
 file a bill for renewal (3). 
 
 16. Though lessees of a mine admit the forfeiture of the lease at 
 Law, by reason of breaches on their part, of covenants ; yet if 
 there is evidence that after the breaches, the lessor's agent en- 
 couraged them to lay out money on the premises, and if there is 
 in other respects, a presumption that at the hearing they may be 
 entitled to equitable relief, the Court, considering that the incon- 
 venience of allowing an ejectment to proceed, would far exceed 
 that of stopping the action until the hearing, will grant an injunc- 
 tion upon an interlocutory application (4). And it would seem 
 that where a landlord is aware that a lease is or must be forfeited, 
 and allows the tenant to go on spending money on the property, 
 the landlord will be restrained from availing himself of the for- 
 feiture at Law (5). The Court will restrain an action of eject- 
 ment on a balance of convenience and inconvenience, and where 
 there is also the fact that the breach can easily be repaired, as 
 where a covenant not to build without the consent of the lessor, 
 has been broken, but only to a small degree (6). 
 
 17. Upon a bill of discovery in Equity, in aid of an action, the 
 plaintiff is only entitled to a discovery of such matters as make 
 out his own title, and cannot compel a discovery of the particulars 
 of his adversary's title, and how he makes it out. Therefore a de- 
 fendant in an action of ejectment is not entitled to a discovery in 
 Equity, under what title the plaintiff claims at Law, or how he 
 makes it out (7). Yet if a plaintiff allege seisin of his father for 
 many years before his death, and his death and will, and pos^es- 
 
 (1) Qray v. Knox, 5 Ir. Bq. Eep. 465. and Coal Co. v. Camoys (Lord), 11 
 
 (2) Beere v. Cavendish, 5 Ir. Eq. Jur. (N. S.) 555 ; 12 L. T. (N. S.) 780. 
 Bep. 472. (5) lb. 
 
 (3) Wallace v. Patten, 1 Ir. Eq. (6) Baigh v. Waterman, 16 L. T. 
 Eep. 338. (N. S.) 375. 
 
 (4) North Staffordshire Steel, Iron, (7) Ingilhy v. Shafto, 33 Beav. 31. 
 
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EJECTMENT— POSSESSION. 369 
 
 sion under that will ever since ; and that the defendant for the Pabt in. 
 first time raised a claim to the premises, thirty-three years after the Seot. l. 
 death of the father, through certain persons, and that the plaintiff 
 could not discover if any such person had ever been interested in, 
 ' or connected with, the premises, the Court will grant an injunction 
 to restrain an ejectment by the defendant until answer to a bill of 
 the plaintiff for discovery of the character or right in which, and 
 the persons through whom, the defendant claims, and of the nature 
 and particulars of his claim and how he makes it out (1). 
 
 18. If there has been a waiver by a mortgagee, of default by the 
 mortgagor, a Court of Equity will restrain an ejectment by the 
 mortgagee (2). 
 
 19. The tenant must be made a party to a bill to restrain an 
 ejectment unless the landlord has been admitted to defend the 
 action (3). But the Court will refuse an injunction to restrain exe- 
 cution upon a judgmentin ejectment obtained by one of two de- 
 fendants against the other defendant, where the plaintiff, as land- 
 lord, might have made himself defendant at Law to the action of 
 ejectment brought against his tenant (4). 
 
 20. If a decree has been made in favour of the plaintiffs in a 
 suit for establishing the trusts of a will, the Court will grant an 
 injunction to restrain an action of ejectment against them for the 
 purpose of disputing the will, by persons claiming an adverse in- 
 terest to the plaintiffs (5). A Court of Equity will restrain an 
 action of ejectment by the heir-at-law against a devisee, in whose 
 favour a verdict has been given, in which a copy of the will was 
 received in evidence, and the will has been established by the 
 Court according to the copy (6). 
 
 21. In case of a trust estate devised to be sold or devised to a 
 devisee, if the will is disputed, after two trials by direction of the 
 Court, in which the verdicts are in favour of the will, Equity will 
 grant a perpetual injunction (7). And though the title be purely 
 
 (1) Garlev.Bobinson,SJnr.(N.S.) (5) Turner v. Turner, 19 L, J, 
 633. (N. S.) Ch. 352. 
 
 (2) Lcmgridge v. Payne, 2 J. & H. (6) Davies v. Evans, 4 De G. & Sm. 
 423. 440. 
 
 (3) Poole V. Marsh, 8 Sim. 528 ;' (7) Leit/htom v. Leighton, 1 P. Wins. 
 lawley v. Walden, 3 Sw. 142. 671; 4 Bro. P. 0. 378 ; 1 Str. 404. 
 
 (4) Moses V. Lewis, Jac. 502. 
 
 2b 
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370 
 
 EBNT— EXECUTIONS. 
 
 PabtIII. 
 
 Chapter I. 
 
 Sect. 1. 
 
 Possession. 
 
 legal, and there is no ingredient of trust, fraod, accident, &c. in 
 the cause, yet where the plaintiff has had five verdicts in eject- 
 ment at Law, a Court of Equity will decree a perpetual injunc- 
 tion (1). And it will do so where the defendant has brought five 
 ejectments, and has been nonsuited upon full evidence in three of 
 them, and has had verdicts against him in the other two (2). A 
 party who has suffered a decree which debars his right to an estate, 
 to be enrolled, will be stayed by a perpetual injunction from 
 bringing an ejectment, till the decree is reversed (3). 
 
 22. A Court of Equity will not restrain proceedings to recover 
 possession against a plaintiff who, pending a suit to establish his 
 equitable title, gets into possession tortiously (4). If a succession 
 of occupiers of waste land in a colony permit one another to con- 
 tinue in undisturbed possession for fifty years, the representatives 
 of the first lawful possessor have no longer the power to bring 
 trespass — acquiescence is a sufficient answer (5). 
 
 23. If the result of an ejectment shews that the defendant in the 
 ejectment has been in possession of a piece of woodland for more 
 than twenty years, although the action is discontinued, the de- 
 fendant in the action is entitled to an injunction to restrain the 
 cutting of trees in the wood by the plaintiff in the action, in order 
 to assert his alleged right (6). 
 
 Sect. 2. Bent — Executions. 
 
 Kent, 1. A landlord cannot restrain proceedings on a judgment in an 
 
 action for excessive distress, on the ground that rent and dilapida- 
 tion-money have subsequently become due from the tenant (7). 
 Pending an interpleader suit to determine the rights of defendants 
 to the rent of premises occupied by the plaintiff, the Court will 
 
 (1) Bath (Lord) v. Shervnn, 4 Bro. 
 P. 0. 373 ; Preo. Ch. 261 ; Gilb. Eq. 
 Eep. 2. 
 
 (2) Barefoot v. Fry, Bun. 158. 
 
 (3) Sdby V. Selhy, Diok. 678. 
 
 (4) Qrafton v. Griffin, 1 Euss. & 
 My. 336. 
 
 (5) Hwnphrey v. Nowland, 6 L. T. 
 (N. S.) 116. 
 
 (6) Stanford v. Hurhtone, L. B. 9 
 Ch. 116; 22 W. E. 422; 30 L. T. 
 (N. S.) 140. 
 
 (7) Maw v. Vlyatt, 31 L. J. (Ch.) 
 33. 
 
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Executions. 
 
 LEASE— FORFEITURES— COVENANTS. 371 
 
 restrain proceedings at Law for payment of the rent, and order it Part III. 
 to be paid into Court (1). ^™l/' 
 
 2. If a party decrees to restrain proceedings at Law upon judg- 
 ment, after an execution has been issued, the amount marked on 
 the writ and the costs at Law must generally be lodged in Court, 
 or satisfactorily secured (2). 
 
 3. A Court of Equity will not extend the benefit of a waiver by 
 a lessor, of breaches of covenant by his lessee, to sub-lessees hold- 
 ing under the lessee, and will not stay the execution of a writ of 
 possession upon a judgment in ejectment obtained by the lessee 
 against his sub-lessee (3). The Court will, at the suit of a pur- 
 chaser, restrain a judgment creditor from taking out execution on 
 his judgment, against an estate sold before he had obtained the 
 judgment, but ineffectually conveyed to the purchaser, whereby 
 the legal estate had descended, since the judgment, to the heir-at- 
 kw (4). 
 
 4. Where the principal subject in dispute is the locality of 
 lands, which have been intermixed and confused while occupied 
 by one person, an ejectment does not decide anything, nor inform 
 the Court of the material point, namely the locality of the lands ; 
 therefore the Court, in such a case, will restrain the plaintiff at 
 Law from taking out execution on a verdict found for him in 
 ejectment, so as to choose his own part of the lands (5). 
 
 Sect. 3. Lease — Forfeitures — Covenants. 
 
 1. A lessee of a colliery at a rate of so much per wey will, if Lease, 
 the colliery become not worth working, upon offering to pay for all 
 the coal that can be got, be relieved against the future rent, and 
 from a covenant in the lease to work the colliery, and actions for 
 the rent and for breach of the covenant, will be restrained (6). A 
 Court of Equity must forget its name if it did not interfere in a 
 
 (1) Olover V. Reynolds, 16 L. T. (4) Prior v. Penpraze, i Price, 99. 
 
 (N. S.) 113. (5) Hardcaslle v. Hhafto, 1 Anstr. 
 
 *(2) Rogan v. TTeir, Sau. & Sc. 677. 184. 
 
 (3) Hillicr v. Parkinson, 9 L. J. (6) Smith v. Morris,. 2 Bro. C. C. 
 
 (Ch.) 150. 311, 31.5. 
 
 2 b2 
 
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372 
 
 LEASE— FORFEITURES— COVENANTS. 
 
 Paet IU. 
 
 Chapter I. 
 
 Sect. 3. 
 
 Forfeituies. 
 
 Covenants. 
 
 case so circumstanced; but if auy possible disadvantage could 
 arise to the lessor, the Court would not interfere; it is true if 
 parties enter into coal contracts they are bound to fulfil them ;. but 
 if parties enter into contracts which are enforced for purposes of 
 harass and vexation, Courts of Equity properly interfere ; the offer 
 in such a case, to pay the lessor all he could ever obtain, without 
 incurring the expense, is offering him everything he can fairly re- 
 quire (1). But if there is a fixed sum a year to be paid as rent 
 whether the mines are worked or not, the Court cannot relieve the 
 lessee from the payment of that sum (2). 
 
 2. A Court of Equity has, under circumstances raising an 
 equity, power to relieve a tenant from the forfeiture of a lease, for 
 a breach of a condition against assigning or sub-letting without the 
 lessor's consent in a certain form ; as, for instance, where the con- 
 sent is given ia another form, and the lessee, or his personal re- 
 presentative, is advised and encouraged by the lessor or those 
 claiming under him, to make the sub-lease, and the lessor, or those 
 claiming under him, stand by while a large sum is expended on the 
 lands by the sub-lessee, and witness the excution of the lease (3). 
 
 3. Where some of the covenants in a lease (other than a cove- 
 nant to pay rent) have been broken, if any covenant against which 
 relief does not lie, has been broken, though the rest may not have 
 been broken, yet the Court will not relieve against ejectment for 
 the nonpayment of rent (4). 
 
 4. An action on breach of covenant to repair, will be restrained 
 under peculiar circumstances not amounting to neglect or surprise, 
 and where there has been no waiver or abandonment on the part 
 of the defendant (5). 
 
 5. The Court will restrain an action on a covenant against sub- 
 lessees or their assignees, by the sub-lessor, to recover an exorbi- 
 tant premium paid by the sub-lessor under an erroneous belief that 
 the premises were used for a hazardous trade, upon the plaintiffs 
 undertaking to pay the amount of premium found to be properly 
 
 (1) Smith V. Morris, 2 Bro. C. C. 
 311, 315, et vide Ridgway v. Sneyd, 
 1 Kay, 627. 
 
 (2) Phillips V. Jones, 9 Sim. 519; 
 it aide Ridgway v. Sneyd, supra. 
 
 (3) £urke v. Frior, 15 Ir. Ch. Eep. 
 106. 
 
 (4) Nokes V. Gibhon, S Drew. 681.' 
 
 (5) Eannara, v. South London 
 Waterworks Co., 2 Mer. 65. 
 
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LEASE— FORFEITURES -COVENANTS. 373 
 
 payable (1). Although a Court of Equity will not interfere to Part hi. 
 modify a strict contract to insure against fire by a lessee, where, sbot. 3. 
 by breach of it, the lessor may enter, it being for the interest of all 
 parties that a sacred regard should be had to the strict obliga- 
 tions of the contract (2) ; yet if leases have been dealt with by the 
 lessor and lessee, so as to lead the lessee to suppose the for- 
 feiture would not be insisted upon, before any insurance had been 
 effected by the lessee, the lessor will be restrained from taking 
 proceedings in an action of ejectment, subsequently brought against 
 the assignee of the leases, to recover possession of the property, on 
 the ground that the covenants had been broken in several respects, 
 but without prejudice to the defendant's right to sue in respect of ' 
 
 any further breaches of the covenant (3). 
 
 6. Whether covenants run with the land or not, a purchaser 
 with notice of them will be restrained from violating them (4). A 
 grantee of land with notice of an easement in a third party, will 
 be enjoined from proceeding in an action upon the covenants in 
 the warranty deed of the land, and from using the warranty and its 
 covenants as evidence for the purpose of enforcing any claim upon 
 his covenants (5). 
 
 7. A Court of Equity has, upon the ground of vexation by re- 
 peated actions for breach of covenant, jurisdiction to restrain an 
 action (6). 
 
 8. Notwithstanding a mortgagee with power of sale has con- 
 tracted to sell a portion of his security, for a sum exceeding the 
 amount due to him, he will not be restrained from enforcing by 
 action the covenant for payment (7). A Court of Equity will re- 
 lieve a mortgagor from an action on a covenant executed by him 
 in ignorance of the facts and without consideration (8). 
 
 (1) Leather Cloth Co. v. Bressey, (Amr.) 
 
 3 Gift 474. (6) Waters v. Taylor, 2 V. & B. 
 
 (2) Meeh v. Carter, 4 Jur. (N. S.) 302. 
 
 992. (7) Willes v. Levett, 1 De Gr. & Sm. 
 
 (3) lb. 392. 
 
 (4) Coles V. &ims, 5 De G. M. & G. (8) Wall v. Cockrell, 9 Jur. (N. S.) 
 1 ; 1 Kay, 56. 447. 
 
 (5) Tayh/r v. Gilman, 25 Vt. 411 
 
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374 
 
 NUISANCE— ANNUITIES— MOBTGAGES. 
 
 Part III. 
 Chaptbe I. 
 
 Sect. 4. Nmsanee. 
 
 1. Though where a party allows and acquiesces in the erection 
 of a nuisance, he will be stayed in his action at Law (1) ; yet. 
 acquiescence in the erection and carrying on of works likely to 
 become a nuisance, so long as no perceptible injury is sustained, 
 will not preclude parties from objecting to an extension of the 
 works, or from pursuing their legal remedy to recover damages for 
 injury sustained by such works, when injury arises (2). 
 
 Annuities. 
 
 Sect. 5. Anmdties — Mortgages. 
 
 1. A Court of Equity will stay an action for arrears of an 
 annuity, on a bill by the grantor for an injunction and an account 
 of what is due (3). 
 
 2. A Court of Equity will restrain a mortgagee from recovering 
 at Law the difference between the mortgage debt and the pur- 
 chase-money of the sale, after a foreclosure and sale of the mort- 
 gaged estate (4). 
 
 3. A mortgagee cannot effectually, in Equity, without the con- 
 currence of the mortgagor, release a vendor from whom the mort- 
 gagor purchased the estate mortgaged, from his covenant for qniet 
 enjoyment : and the vendor will, at the suit of the mortgagor, be 
 restrained from setting up the conveyance by way of mortgage to 
 the mortgagee, or an accord between the vendor and mortgagee^ 
 in discharge of the covenant for quiet enjoyment, as a defence to 
 an action by the mortgagor on the covenant (5). 
 
 4. If a mortgagee so deal with a mortgaged estate as to render 
 it impossible for him to restore it on full payment, a Court of 
 Equity will prevent him from suing at Law to recover the mort- 
 gage money (6). The Court will not, at the suit of a mortgagor 
 
 (1) Anm., 2 Bq. Abr. 522. 
 
 (2) Banka/rt v. Soughton, 5 Jur. 
 (N. S.) 282. 
 
 (3) King v. Chaplin, 9 Jur. (N. S.) 
 984 ; vide Searle v. Carpenter, Amb. 
 242. 
 
 (4) Perry v. Bwrker, 8 Ves. 527. 
 
 (5) Thornton v. Comt, 5 De G. M. 
 & G. 293 ; 17 Jur. 151. 
 
 (6) Palmer v. Eendrie, 28 Beav. 
 341 ; 27 Beav. 349. 
 
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ANNUITIES— MORTGAGES. 375 
 
 to redeem, who is placed by the circumstances of the case in such Part III. 
 a position that his mortgagee is, with regard to him, an unliqui- seot. 5. 
 dated mortgagee — interfere by injunction to prevent the mort- 
 gagee from pursuing his legal remedy by ejectment to get posses- 
 sion of the mortgaged premises from the mortgagor ; as, for instance, 
 in a case where the object of the mortgagee is to enable himself to 
 complete a contract for the sale of the estate made by him under 
 a power of ^ale in the mortgage (1). A mortgagee is, as an un- 
 liquidated mortgagee, entitled to pursue his legal remedy to get 
 possession of the mortgaged premises (2). A Court of Equity 
 will restrain an equitable owner of property from proceeding in an 
 action for damages in the name of the legal owner, if the liability 
 for the damages was caused by the equitable owner ; in such a case 
 there would be no defence to the action, from its having been 
 commenced in the name of the legal owner (3). 
 
 5. The assignee of a mortgagee cannot stand in any different 
 character, or hold any different position from that of the mort- 
 gagee himself, although the mortgagor may not have been a party 
 to the assignment. Every mortgagor has the right to have a re- 
 conveyance of the mortgaged property upon payment of the 
 fiioney due upon the mortgage; and the mortgagee is charged 
 with the duty of making such reconveyance upon such payment 
 being made. And if the debt and security have been improperly 
 severed, as by transferring the mortgage without assigning col- 
 lateral securities, although it is not necessary to say, that in no 
 case can the mortgage debt be severed from the security for that 
 debt ; yet if there is a question upon the point, proper to be deter- 
 mined upon the hearing of the cause, a Court of Equity will grant 
 an injunction to restrain a mortgagee from proceeding at Law 
 upon, the collateral securities given by a mortgagor for the mort- 
 gage debt, pending a suit in Equity by the mortgagor to redeem 
 and settle the equities of the parties (4). If two properties are 
 mortgaged to the same person for distinct sums, a surety for one 
 of the properties cannot restrain the mortgagee from proceeding 
 at Law, upon offering to pay the sum for which he is surety, the 
 
 (1) Savies v. Williams, 7 Jur. 663.. (3) Oauston v. City Offices Co., 12 
 
 (2) lb. j Jur. (N. S.) 497 ; 14 W. E., 999. 
 
 (4) Walker v. Jones, L. R. 1 P. 0. 50. 
 
 * 
 
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376 VENDOR AND PUECpASBR, SPECIFIC PERFORMANCE. 
 
 Part III. property is not redeemable by the surety unless upon his payment 
 
 Shot. 5. of both sums (1). The right of the mortgagee to retain all the 
 
 securities until repaid for both debts, overrides the right of the 
 
 surety to have the benefit of the securities for that debt for which 
 
 he is surety (2). 
 
 Sect. 6. Vendor cmd Pv/rehaser, Speeifio Performance. 
 
 1. It is not the course of a Court of Equity, when it entertains 
 jurisdiction in specific performance, to permit an action at Law to 
 proceed for the same subject matter (3). After a decree for specific 
 performance has been made against a defendant, the plaintiff can- 
 not proceed by an action at Law on the contract for damages (4). 
 Where the Court grants relief in a suit for specific performance, it 
 has jurisdiction over the whole matter, and can therefore deal 
 with any question of damages arising from a breach of the agree- 
 ment (5). A plaintiff who comes to a Court of Equity for its aid, 
 is bound to put under the control of the Court, his legal rights re- 
 lating to the subject-matter of litigation (6). An offer to sell land^ 
 to be binding upon the person making it, must be accepted within 
 a reasonable time ; and if the person making the offer die, become 
 bankrupt, or sell, before acceptance of the offer, the land is not 
 bound, and the Court will not stay proceedings at Law to recover 
 the land from the person who has so neglected to accept the 
 offer (7). If the description in printed particulars of sale is calcu- 
 lated grossly to deceive, as to the real nature and value of the 
 estate sold, a Court of Equity will not grant an injunction to stay 
 proceedings in an action brought by the purchaser to recover the 
 amount of his deposit (8). Notice by a vendor of an intention to 
 re-sell is equivalent to a declaration that he will not seek specific 
 performance, and the Court wiU not restrain an action by the pur- 
 
 (1) Farebrother v. Wodehouse, 23 (5) Protherov.Phe^s,2 3m.(S.^.) 
 Beav. 18 ; 2 Jur. (N. S.) 1178. 173. 
 
 (2) lb. (6) lb. 
 
 (3) Beaufort (Duke) v. Glynn, 3 (7) Meyndlv.Swrtees,13aT.(S.B.) 
 Sm. & Giff. 213. 80, 737. 
 
 (4)- Reynolds v. Nelson, 6 Madd. (8) Stewart v. Alliston, 1 Mer. 26. 
 298. " I 
 
 t 
 
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VENDOR AND PURCHASER, SPECIFIC PERFORMANCE. 377 
 
 chaser for the deposit-money (1). If there is evidence of the Part III. 
 
 Ohapter I 
 
 abandonment of the contract by the vendor, from his conduct by sbct. 6. 
 delaying completion, the Court will not restrain an action for the ~^ 
 deposit (2). Though the vendor retain possession of the estate, 
 the Court will not, in a suit by him for specific performance, com- 
 pel him to pay the deposit money into Court, if the delay in the 
 completion of the contract is occasioned by the purchaser (3). 
 Still it will, in such a case, restrain an action by the purchaser 
 against the vendor to recover the deposit (4). The Court will re- 
 strain an action for the purchase-money by the vendor, where 
 the vendor has required the purchase to be completed in a mode 
 which he was not justified in insisting upon (5). 
 
 2. Where there is an agreement to hold for two years with the 
 option of purchasing, upon a bill against the landlord for specific 
 performance of the contract of sale, the Court will not restrain the 
 landlord if he afterwards commence an action of ejectment against 
 the tenant, except upon the terms of the plaintiff undertaking to 
 continue to pay the rent, or, in lieu of the undertaking, the plain- 
 tiff pay the purchase-money into Court (6). If a vendor, under 
 the conditions, duly annuls a contract of sale, the Court will cancel 
 a conveyance by the vendor, and decree a reconveyance of the 
 property to him, and will restrain actions by the purchaser (7). A 
 party who has commenced an action in respect of a portion of a 
 contract, cannot set up in Equity, in a suit by the other party to 
 the contract for specific performance and to restrain the action, the 
 defence of an alleged previous waiver of the contract (8). 
 
 (ly Eoyou V. Paid, 28 L. J. (Ch.) 468. 
 555. (6) Fyke v. Northwood, 1 Beav. 
 
 (2) Lloyd V. Collett, 4 Bro. C. C. 152. 
 
 469 ; 4 Ves. 689, n. (h). (7) Hvdson v. Temple, 3 L. T. 
 
 (3) Wynne v. Griffith, 1 S. & S. (N. S.) 495. 
 
 147. (8) Whittaker v. Fox, 13 L. T. 
 
 (4) lb. (N. S.) 588. 
 
 (5) Viney v. Ohaplm, 2 De Gr. & J. ' 
 
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( 378 ) 
 
 Part II. 
 
 Choses in 
 action. 
 
 Policies. 
 
 CHAPTEE II. 
 
 The Doctrines and Peinciples in Eestkaining Pkoceedings 
 IN CouET or Law and other Courts as applicable to 
 Personal Property. 
 
 Sect. 1. Choses in Action — Policies — Bills of Exchange — Promis- 
 sory Notes, 1. 0. U.s — Bonds — Guaranties, Legal Instruments — 
 Jvdgiments. 
 
 1. A chose in action not being assignable at Law (1), an assignee 
 thereof takes it subject to all the equities which attach to it; 
 therefore a purchaser of a debt, who brings an action to recover it 
 in the name of the assignor, to which the debtor pleads a parol 
 agreement between him and the assignor by way of set-off, has no 
 title to relief in Equity, as the questions are exactly the same at 
 Law and in Equity, and the rules which apply to both questions, as 
 to the set-off and the defence, are exactly the same (2). Though the 
 purchase of a chose in action be bond fide for value without notice, 
 yet, as a chose in action is not assignable at Law, the purchaser 
 must take it subject to the equities attaching to it ; and if it be 
 tainted with fraud in its origin, the purchaser will be restrained 
 from suing on it (3). A vendee of land, who has given a note to 
 the vendor for the purchase-money, upon a bond by the vendor to 
 make a title, is entitled to be relieved against an action by an 
 assignee of the note, if the payee is unable to make a title (4). 
 
 2. A party is entitled to file a bill for discovery of fraud in a 
 
 policy of insurance, to defend an action at Law, and to ask that 
 
 the policy may be delivered up to be cancelled (5). The non- 
 
 (1) See "The Supreme Court of Ju- (2) £oU v. White, 31 Beav. 520; 
 
 dicature Act " (36 & 37 Vict. c. 66, s. 9 Jur. (N. S.) 843. 
 25 (6), which makes the assignment of (3) Athenceum Life Insurance So- 
 
 debts and other legal choses in action 
 effectual in law to pass and transfer the 
 legal right to such debts and choses in 
 action. < 
 
 ciety V. Pooley, 3 De G. & J. 294. 
 
 (4) Black V. Bowman, 4 Eng. 501 
 (Amr.) 
 
 (5) French v. Condly, 2 Anstr. 454. 
 
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CHOSES IN ACTION-POLICIES-BILLS OP EXCHANGE, &c. 379 
 
 communication of a fact which vitiates a policy of insurance, entitles Part IIL 
 the grantors of the policy to restrain proceedings at Law upon it seot. i. 
 
 by the assignees thereof, and to have it delivered up to be can- 
 celled. The jurisdiction of a Court of Equity in cases of this 
 kind is clear. Such a Court has concurrent jurisdiction in such 
 cases with a Court of Law, and will not decline to decide them, 
 and to restrain actions on them, on the ground that they can 
 be decided at Law (1). But although a bill has been filed to set 
 aside a policy on grounds of fraud, a Court of Equity will not 
 restrain an action by an assignee of the policy, where the question 
 as to the fraud is one for a Court of Law with the aid of a jury — 
 as for instance, whether the assured was of sober habits (2). Neither 
 will Equity entertain a suit for the repayment of premiums where 
 a Court of Law is the proper tribunal to decide the question — as 
 for instance, where the plaintiff has made an advance upon forged 
 bills of lading for a cargo, insured by the forger, and claims repay- 
 ment of the premiums on the policy, on the ground of no interest 
 having attached (3). If the owner of a building insure it against 
 fire, but not to the full value, and the building is burnt by the care- 
 lessness of the servants of a third party, so as to render that party 
 liable, the insured is entitled to bring an action for the whole loss to 
 himself, including that part of the loss against which he is indemni- 
 fied by the insurance company; the insured is dominus litis, subject 
 to liability for anything which would be a breach of some equitable 
 obligation, or a violation of some equitable duty towards the insurers, 
 cast upon the insured by reason of the circumstances of the case (4.) 
 
 3. Fraud practised on an acceptor of a bill of exchange, in order Bills of ex- 
 to obtain his acceptance, is no defence against an indorsee for " *"^*" 
 value ; and fraud being a good defence at Law to an action on a 
 bill of exchange, there is no ground for seeking relief in Equity ; 
 and a Court of Equity will not restrain the indorsees from en- 
 forcing at Law payment against the acceptor (5). But if a bill is 
 
 (1) British Equitable Insurwtice Co. (Ch.) 273. 
 V. Oreat Western Railw. Go., 38 L. J. (4) Oommerdai Union Assurance 
 
 (Ch.) 132, 314 ; 17 W. K. 43, 561 ; 19 Co: v. Lister, L. B. 9 Oh. 483, 484, 
 
 L. T. (N. S.) 476 ; 20 L. T. (N. S.) 42. 486 ; 43 L. J. (Ch.) 601. 
 
 {%) ,Life Assv/rance of Scotland v. (5) Thiedman v. Ooldschmidt, 1 i)e 
 
 •McBlane, 9 Ir. E. Bq. 176. G. F. & J. 4 ; 1 Giff. 142 ; 1 L. T. 
 
 (3) Hoshins v. Holland, 44 L. J. (N. S.) 50. 
 
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380 CHOSES IN ACTION— POLICIES— BILLS OF EXCHANGE, &c. 
 
 Pakt III. filed for discovery and an injunction to stay proceedings at Law, 
 Sect. 1. " and for delivery up of a bill of exchange to be cancelled on the 
 ground of fraud, which is not answered by some of the defendants ; 
 if the discovery might disclose a defence in Equity, of which the 
 plaintiff in Equity could not avail himself at Law, although the 
 Court will refuse to stay proceedings, it will grant an injunction 
 to stay execution (1). A purchaser, and land fide holder of a bill of 
 exchange for value, though obtained surreptitiously, and put into 
 circulation by means of a forgery — ^if there be nothing to excite 
 suspicion of forgery — is legally entitled to the bill, and a Court of 
 Equity will not interfere to defeat his title, by restraining him 
 from suing upon the bill (2). If an action has been brought on a bill 
 of exchange alleged to have been fraudulently obtained, and the 
 plaintiff has elected to be nonsuited ; unless he undertake to bring 
 anotljer action, the Court, if satisfied that an inference of fraud is 
 to be drawn, will order the bill to be delivered up (3). If a bill of 
 exchange, accepted by a party who refused to receive the con- 
 sideration for the bill as having been improperly sent, is sent by 
 the drawer, an agent, to his principals, and by them to their 
 bankers to sue on it ; the bankers, although they deny all know- 
 ledge of the circumstances under which the bill was accepted, if 
 there is ground for suspecting the truth of the denial, will be 
 restrained from proceeding in an action on the bill (4). The 
 plaintiff having accepted the bill in anticipation of the considera- 
 tion being realised — in this case cotton of a certain description — 
 is entitled to be protected from the payment of the bill upon the 
 non-realisation of the consideration. The bankers, had they been 
 land fide holders for value pf the bill, would have had a title of 
 their own, independently of the equities that might exist between 
 the drawer and acceptor, but it is impossible for a Court of Equity 
 to admit the right of a party claiming against a title, or an equity 
 existing between a drawer and acceptor ; if there is proof, or 
 strong reason for suspecting, that the party does not hold that 
 
 (1) Eoulditch V. Nias, 8 Price, 689. (3) Alien v. Davis, 4 De G. & S. 
 
 (2) Dawson v. Prince, 2 De G. & J. 133 ; 20 L. J. (Ch.) 44. 
 
 41 ; 27 L. J. (Ch.) 169 ; 4 Jur. (N. S.) (4) Sharp v. Arbuthnot, 13 Jur. 
 
 497 ; 3 Jur. (N. S.) 903 ; 26 L. J. (Ch.) 160, 219. 
 
 849. 
 
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CHOSES IN ACTION— POLICIES— BILLS OF EXCHANGE/ &c. 381 
 
 character which he professes to hold, and that he is not a land fide Part III. 
 holder for value, without notice of the equities between the drawer seot. i. 
 and acceptor. 
 
 4. A Court of Equity will restrain actions on bills of exchange 
 given for gambling debts (1). So it will restrain an action on a 
 promissory note given as a consideration for the renewal of bills of 
 exchange, the acceptances to which have been obtained under cir- 
 cumstances amounting to an undue use of a superiority in official 
 rank, and merely for the accommodation of the superior officer (2). 
 An acceptor of a bill of exchange, as a surety for the drawer, 
 is released in .Equity, if not at Law, by the giving of time to the 
 drawer, the principal debtor; and is entitled to an injunction to 
 restrain proceedings at Law by the indorsees, creditors with notice 
 that the acceptance was for the drawer (3). 
 
 5. An injunction will not be granted to restrain an action on a 
 bill of exchange, on circumstances which merely shew a right to a 
 counter-action for damages, respecting the subject matter which 
 was the consideration for the bill (4). 
 
 6. The object of the bankrupt laws being to secure an equal 
 distribution of the bankrupt's property among his creditors, a 
 Court of Equity will, on the ground of public policy, set aside a 
 secret bargain between a bankrupt and one of his creditors, and 
 will therefore restrain proceedings in an action on a bill of ex- 
 change, given by a bankrupt to one of his creditors, as a preferential 
 and secret consideration, to obtain their consent to annul the 
 adj^dication, and will order the delivery up of the bill to be can- 
 celled, as illegal and void (5). 
 
 7. A plaintiff in action at Law on a bill of exchange, may insti- 
 tute a suit in Equity to rectify the bill by striking out the name 
 of the plaintiff, inserted by mistake as the drawer ; and the Court 
 
 (1) Portarlington (Lord) v. Soulby, Order 19 (3), by which, a defendant 
 3 My. & K. 104. may set off any right or claim whether 
 
 (2) Lloyd V. Clark, 6 Beav. 309: sounding in damages or not, subject to 
 
 (3) Bavies v. StainhanJc, 6 De G. the decision of the Court whether such 
 M. & G. 679. set-off ought to be allowed). 
 
 (4) Glennie v. Imri, 3 Y. & C. 436 ; (5) Mare v. Sandford, 5 Jur. (N. S.) 
 3 Jur. 432 (see the Eules of Court 1339 ; 1 Giff. 288 ; et vide Constantein 
 under the " Supreme Court of Judica- v. Blache, p. 384 ; Mackenzie v. Mac- 
 ture Act, 1873," 36 & 37 Vict. c. 66, kenzie, p. 386, post. 
 
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382 
 
 CHOSES IN ACTION^POLTCIES— BILLS OF EXGHANaE, &c. 
 
 Part III. 
 
 Chapter II. 
 
 Sect. 1. 
 
 Promissory 
 notes, 
 I. 0. U.'s. 
 
 will restrain the defendant from alleging in the trial that the 
 plaintiff was, jointly with himself, or otherwise, a drawer of the 
 bill, and from issuing execution under any judgment he may 
 obtain in the action, without leave of Court ; on the grounds of the 
 non-admissibility of evidence in the action by the plaintiff at Law, 
 to prove the real contract, and of the establishecj jurisdiction 
 in Equity to correct mistakes in documents (1). If a person lend 
 his name, as maker of a note, to enable the borrower to keep up a 
 false credit, by using the paper as business paper, he cannot come 
 into Court for relief against the consequences (2). 
 
 8. The maker of a note for a consideration which fails, is not 
 entitled to an injunction against the assignee of the payee of the 
 note to restrain proceedings upon a judgment obtained by the 
 assignee against the maker ; but the consideration having failed, 
 the payee of the note is liable to the maker for the note he 
 assigned, whenever the maker shall pay the judgment; or the 
 payee shall be otherwise released from his liability to the 
 assignee (3). 
 
 9. A Court of Equity will restrain the holder, indorsee of a 
 promissory note drawn by a plaintiff, where the holder takes the 
 note long after it is overdue, from proceeding in an action for 
 payment, on the terms of the plaintiff giving judgment to be 
 dealt with as the Court should direct (4). In such circumstances, 
 the holder takes it subject to all the equities by which it is affected ; 
 and if there is a question of accounts to be settled between ihe 
 maker of the note and the payee, to secure the balance of which 
 the note was given, that question must be settled, and the balance 
 ascertained (5). 
 
 10. Notwithstanding the general rule, that the onus is on the 
 maker of a negotiable instrument to shew that it has been paid, 
 the holder is bound, in the first place (unless he be a derivative 
 indorsee for value during the currency of the bill or note), to show 
 that the maker received value for it ; and persons who pay money 
 
 (1) Druiff V. Parher {Lord), L. E. 
 5 Eq. 131 ; 37 L. J. (Oh.) 241 ; 18 
 L. T.'(N. S.)46; 16 W. E. 557, 
 
 '(2) Davenport v. City Bank, 9 
 Paige, 2 (Amr.). 
 
 (3) Drake v. Lyms, 9 Gratt. 54 
 (Amr.). 
 
 (4) Simons v. Cridkmd, 5 L. T. 
 (N. S.) 523. 
 
 (5) lb. 
 
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CHOSBS IN ACTION— POLICIES— BILLS OF EXCHANGE, &c. 382 
 
 to a party acting in loco parentiSfhy the directions of persons of tender Part hi. 
 years, although of age, should see that such persons understand the sto™l/^' 
 nature of the transaction, and that they have had independent 
 advice ; in default of these precautions, a Court of Equity will 
 restrain any action upon securities so obtained, and declare them 
 to be invalid, except as to such sums as the parties giving the 
 securities under such circumstances, actually have received (1). 
 So the maker of a promissory note obtained by an abuse of con- 
 fidence, or by undue influence, will be relieved against his liability 
 thereon, and the note will stand as a security only for the amount 
 due from him (2). And though the plaintiff in Equity may have 
 an equitable as well as a legal defence to the action on the note, 
 he is not bound, after filing his bill, to go into evidence at the 
 trial at Law, to establish his legal defence, but he may rely on his 
 case in Equity (3). The Court will restrain an action upon an 
 I. 0. U. obtained in part payment of the consideration of a con- 
 tract, into which the owner of the L 0. U. has been induced to 
 enter by fraudulent misrepresentation, and will direct the con- 
 tract to be delivered up to be cancelled (4). The Court will 
 restrain an action upon promissory notes to secure the amount of 
 a mortgage debt, brought by the mortgagee after he has received 
 his mortgage debt, and will direct them to be delivered up (5); 
 The Court will restrain an action by the depositee of a promissory 
 note, brought against the giver of the note, if the note has been 
 discharged by the payee, in the course of his dealings with the 
 depositee, and if necessary, the Court will direct an inquiry 
 whether sums paid to the depositee by the payee were paid with 
 specific appropriations to the payment of the note (6). The posi- 
 tion of the maker of the note is that of surety to the depositee, 
 the payee being the debtor and principal if the money was lent to 
 ' him (7). 
 
 (1) Dettmar v. Metropolitan, and (3) lb. 
 
 Provincial Sank, 1 H. & M. 641 ; (4) Bartlett v. Salmon, 1 Jnr. 
 
 10 L. T. (N. S.) 63 ; et vide Espey (N. S.) 277. 
 
 V. Lake, 10 Hare, 260; Maitland v. (5) Robinson v. Broeklebank, 12 
 
 Irving, 15 Sim. 537. W. B. 331. 
 
 (2) BiUage v. Southee, 9 Hare, 534 ; (6) Mostyn v, Burdekin, 3 Jnr. 52. 
 S. C. sub nom: Billing v. Southee, 21 (7) lb. 
 
 L. J. (N. S.) Cb. 472. 
 
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384 
 
 CHOSES IN ACTION— POLICIES— BILLS OP EXCHANGE, &c. 
 
 Part III. 
 
 Chapter II. 
 
 Sect. 1. 
 
 Bonds. 
 
 11. A Court of Equity will restrain a defendant from proceeding 
 at Law on a promissory note given by the plaintiff, when insolvent, 
 to one of his creditors who had refused to come in under a 
 creditors' composition deed, unless the plaintiff gave his promissory 
 note for the remainder of the debt due to himself (1). 
 
 12. If it is doubtful whether an agreement for giving time was 
 made by the obligee of a bond with a surety, either as principal or 
 as surety, an injunction to stay proceedings against a co-surety 
 will be continued (2). Where an injunction has been obtained to 
 restrain proceedings in an action on a bond, in which the plaintiff 
 joined as a surety, on the ground of misrepresentation on the part 
 of the obligee, and a deviation by him, with the concurrence of 
 the principal obligor, from the terms of the contract on which the 
 bond was founded ; and it appears on the evidence that there is 
 reason to suppose that there has been such misrepresentation and 
 deviation, although the evidence is not conclusive on the point, 
 the Court will not dissolve the injunction (3). A surety who has 
 executed a bond on the faith of its being executed by the prin- 
 cipal debtor, will not be relieved against the execution of a 
 Common Law judgment upon the bond on the ground that the 
 principal has not executed the bond, if the principal has executed 
 an instrument on which the surety may sue him and become a 
 specialty creditor of his. If the surety can have the benefit of 
 an agreement under seal between the principal and the obligee of 
 the bond, he is not discharged by the non-execution of the bond by 
 the principal debtor, and upon properly indemnifying the obligee, 
 the surety will be able, in his name, to sue the principal upon the 
 above agreement, and become a specialty creditor of. his just as 
 much as if he had executed the bond (4). And further, if the 
 plaintiff (the surety) has raised at Law the same case as set up 
 in Equity, and the question has been decided by the judgment 
 at Law, a Court of Equity will not restrain execution upon the 
 judgment, as the doctrine of principal and surety is the same at 
 
 (1) Constantein v. Slache, 1 Cox, 
 287 ; et vide Mare v. Sandford, p. 381, 
 ante ; Mackenzie v. Mackenzie, p. 386, 
 pest. 
 
 (2) Blake v. White, 5 L. J. (N. S.) 
 
 Ex. Eq. 8 ; 1 Y. & C. 420 ; 4 L. J. 
 (N. S.) Ex. Eq. 48. 
 
 (3) Allan v. Inman, 7 Jur. 433. 
 
 (4) Cooper v. Evans, L. K. 4 Eq. 
 45 ; 15 W. R. 609. 
 
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CHOSBS IN ACTION— POLICIES— BILLS OF EXCHANGE, &o. 385 
 
 Law as in Equity (1). The Court will restrain proceedings on a Past IU. 
 bond, assigned by the procurement of a surety, after the debt has sbot. i. 
 been paid by him, but with the money of the principal, as a col- 
 lateral security for a debt of his, the surety's own (2). The Court 
 will restrain an action on a first bond where a second has been 
 giyen on the understanding that the first was to be cancelled (3). 
 If bonds are given to a vendor to secure the purchase-money of 
 land, with a covenant by the vendor with the purchaser that 
 the land would, in a certain time, sell for a certain price, and an 
 indemnity by him to the purchaser therefor, and the vendor 
 becomes insolvent and the land becomes depreciated greatly in 
 value, while the bonds are in the hands of the vendor, even before 
 the expiration of the time the obligor is entitled, on a well-founded 
 apprehension of loss, to a bill, quia timet, for an injunction re- 
 straining the vendor from selling the bonds, but if he parts with 
 them before his insolvency, the rights of third parties intervene, 
 and they must be protected against loss through equities existing 
 between the original parties (4). If one of two joint and several 
 bond debtors is precluded, by the form of a joint action by the 
 bond creditor against them, from setting off his separate debt, 
 he is entitled' to an injunction against the bond creditor's' pro- 
 ceeding in the joint action (5). A Court of Equity will not 
 restrain an action at Law on a bond, if the consideration can be 
 pleaded at Law, in order to try whether it is corrupt (6). Equity 
 will enjoin proceedings upon a bond conditioned for the receipt 
 of the money, although there be a breach of condition, provided 
 nothing be due (7). Equity will relieve against an action on a bond 
 merely to secure a settlement, if it be satisfied in any way (8). 
 The Court will relieve against a bond made in consideration 
 of a payment which was never made (9). 
 
 13. Bonds in the nature of penalties will be relieved against, and 
 an issue quantum damnificatus will, if necessary, be ordered (10). 
 
 (1) Gooperv.Evans,lj. E. 4Eq. 45; (5) Bradley v. Millar, 1 Rose, 273. 
 15 W. R. 609. (6) Tfirale v. Soss, 3 Bro. C. C. 57. 
 
 (2) May v. Barman, 4 Bro. P. C. (7) Peek v. Payne, Ridg. 295. 
 
 156. (8) Humphreys v. Humphreys, 3 P. 
 
 (3) Whilmhurst v. Peerless, 17 Wms. 395. 
 
 -L. T. (N. S.) 313. * (9) Osborne v. Havers, Gary, 112. ' 
 
 (4) Coster t. Griswold, 4 Bdw. Ch. (10) Errington v. AyHiesly, 2 Bro; 
 364 (Amr.). " C. C. 341 ; Dick. 692. 
 
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386 
 
 CHOSES IN ACTION— POLICIES-BILLS OP EXCHANGE, &c. 
 
 Paet in. 
 
 Chapteb ,11. 
 
 Sect. l'. 
 
 Guaranties, 
 Legal instru- 
 ments. 
 
 Judgments. 
 
 14. A hondfde purchaser of a negotiable bond for value without 
 notice, cannot be restrained from dealing with it (1). 
 
 15. A bond creditor who has concurred in a general resolution 
 for a composition to be secured by notes, will, with reference to 
 the interest of the other creditors, be restrained from taking 
 execution in an action upon the bond for non-payment of the 
 notes, beyond the term of composition (2). 
 
 16. Although there be a legal defence to an instrument, which, 
 though invalid, is not invalid on its face, the instrument, for 
 instance a guarantie for money payable by instalments, ought 
 to be cancelled, on the ground that future actions might fail 
 from the loss of evidence (3). The principle is this, if a legal 
 instrument has stated on the face of it, the defect which makes 
 it impossible to sue at Law, a Court of Equity wiU not interfere ; 
 but if a legal instrument has no defect on the face of it, but by 
 reason of the circumstances connected with it, it would be in- 
 equitable to allow a person to proceed at Law upon it, or if there 
 be a good legal defence, not appearing on the instrument itself, 
 which the lapse of time may cause the person chargeable upon the 
 instrument, from loss of the evidence necessary for his defence at 
 Law, to be unable to make available ; then a Court of Equity 
 will interfere, and order the instrument to be delivered up to be 
 cancelled. The Court orders such documents to be delivered up, 
 in consequence of the danger that the lapse of time might deprive 
 the party to be charged upon it of the means of defence (4). 
 
 17. It is a general rule that Equity vrill grant relief against a 
 judgment which is against conscience, or the justice of which can 
 be impeached by facts,, or on grounds of which the party could 
 not avail himself at Law, or of which he was prevented from avaO- 
 ing himself by fraud, accident, mistake, or the act of the oppo- 
 site party, without any negligence or fraud on his own part (5). 
 
 11 W. R. (5) Kentv.Bicards,3Ui.Ch.Deeis. 
 
 392 ; Mamie IfCo.M. Hodgson, 7 Cranch, 
 332 ; Lamb-r. Anderson, 1 Chand. 224; 
 Rowan v. Runnels, 5 How. 134 ; Moore 
 V. Gamhk, 1 Stockt. 246 ; PdlocJc v. 
 Oilbert, 16 Geo. 398 ; Little v. Price, 
 1 Md. Ch. Decis. 182 (Amr.); Jarvisy. 
 Chandler, 1 T. & R. 319 ; Ewrl of 0x7 
 ford's Case, 1 Ch. Bep. 1 ; Toth. 126.. 
 
 (1) Ashwin v. Burton. 
 103 ; 9 Jur. (N. S.) 319. 
 
 (2) Mackenzie v. Mackenzie, 16 Ves. 
 372. Vide Constantevn v. Blache, p. 
 384 ; Mare v. Sandford, p. 381, ante. 
 
 (3) Cooper v. Joel, 27 Beav; 313 ; 1 
 De G. P. & J. 240 ; vide Simpson v. 
 Lord Howden, 3 My. & Cr. 102. 
 
 (4) lb. 
 
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EXECUTIONS. 387 
 
 A judgment obtained by collusion will be relieved against (1). Paut III. 
 Special equitable grounds for the interference of the Court must "sbc™]. 
 be shewn (2). Equity will prevent the inequitable use of a good 
 judgment (3). 
 
 18. Negligence in setting up a defence at Law (4), or in suffer- 
 ing judgment to go against him (5), disentitles a party to relief in 
 Equity. If neglect in pretermitting an opportunity of pleading at 
 Law can be accounted for, a Court of Equity will restrain proceed- 
 ings and judgment granted afterwards (6). 
 
 19. A Court of Equity has jurisdiction to restrain an execution 
 upon a judgment against a defendant at Law, on the ground of a 
 subsequent release by the plaintiff at Law of his claims under the 
 judgment for a valuable consideration, paid by the defendant at 
 Law (7). 
 
 20. An executor, who, in an action at Law by a creditor of the 
 testator, has confessed assets and pleaded according to the truth 
 of the case, is, when the assets are taken from him and adminis- 
 tered in Equity, entitled to the protection of the Court against 
 any personal liability under which he may be placed by the 
 judgment against him (8). 
 
 Sect. 2. Executions. 
 
 1. Although a Court of Equity has jurisdiction to grant an 
 injunction to restrain an action at Law, on the ground of legal, 
 as well as of equitable fraud, and to determine the legal fraud ; 
 yet, when it is advisable, it will permit an action to proceed in 
 order to determine the question of legal fraud, and restrain execu- 
 
 (1) Isaac V. Humpage, 1 Ves. J. (4) ProtJieroe v. Forman, 2 Sw. 227 ; 
 427 ; Margate v. Shoriridge, 5 H. L. Bateman v. Willoe, 1 Sch. & Lef. 205. 
 C. 297; Annedey v. Boohes, 3 Mer. (5) Williams v. Lee, 3 Atk. 223; 
 226, n. Lansing v. Eddy, 1 John. Ch. 50 
 
 (2) Rowe Y. Wood, 2 Sw. 234, n. ; (Amr.). 
 
 Protheroe v. Forman, 2 Sw. 227; (6) O'NeiU v. Browne, 9 Ir. Bq. 
 
 O'Mahony v. Dickson, 2 Sch. & Lef. Bep. 131. 
 
 400; Bateman v. Willoe, 1 Sch. & (7) Williams v. Roberts, 8 Hare, 
 
 Lef. 205. 315. 
 
 (3) Oarlich v. McArthur, 6 Wis. ^8) Gaunt v. Taylor, 2 Hare, 413, 
 450 (Amr.). . 419. 
 
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388 EXECUTIONS. 
 
 Past HI. tion only. And if the jury find that there was no legal fraud, the 
 Sect. 2. Court will afterwards enter into the consideration of the question 
 of equitable fraud, and if it find none to exist will permit execu- 
 tion to be taken out (1). 
 
 2. If a creditor has got a judgment before the usual adminis- 
 tration decree for an account, the ordinary rule is, that he may 
 issue execution after the decree (2). A creditor who has obtained 
 an administration decree, is not entitled to restrain the payment 
 of the proceeds of an execution, upon a judgment obtained by a 
 bill-holder in an action against the executors of the drawer of the 
 bill, obtained before the suit was instituted. The money, the 
 proceeds of the execution, being in the hands of the sheriff at the 
 instance of the creditor before the decree, the decree does not 
 prejudice the rights of the plaintiff in the action (3). But if, 
 after a decree, a judgment has been obtained by default against 
 an executrix, which is set aside on the terms of the executrix 
 pleading phne admimstrami, the Court will not, on the eve of 
 the trial, do more than stay execution j and it will not allow the 
 creditor to proceed against the executrix for the purpose of 
 charging her personally (4). 
 
 3. A Court of Equity will not restrain the sheriff from exe- 
 cuting a fi. fa. against furniture, &c., of the defendant at Law, 
 which, with a house, &c., has been let by him to the plaintiff, who 
 is in possession, unless a trust can be made out (5). But the Court 
 will not allow personal property not absolutely the property of 
 the judgment debtor, but subject to certain rights of another 
 party, still subsisting in the property ; to be seized by the sheriff 
 under the execution (6), 
 
 4. If mortgaged personal property is in the possession of the 
 mortgagee, he is not entitled to an injunction to restrain a sub- 
 sequent execution against the mortgagor, since he has a perfect 
 remedy at Law (7). An injunction will not be granted to restrain 
 a party from selling, on an execution against a mortgagor, per- 
 
 (1) Clarke v. Manning, 7 Beav. (5) GarsHn v. AspUn, 1 Madd. 150. 
 162. (6) Seeston v. Marriott, i Gift 436, 
 
 (2) Lee v. Park, 1 Keen, 714, 724. 9 Jur. (N. S.) 960. 
 
 (3) Marriage v. Skiggs, 4 De G. & (7) Warner v. Paine, 3 Barb. Ch. 
 J. 4, 8. 630 (Amr.). 
 
 (4) Kirby v. Barton, 8 Beav. 45. 
 
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MORTGAGE OF CHATTELS PBESONAL— SHIPPING. 389 
 
 sonal property mortgaged to the complainant to secure an ante- Pa^t Hi- 
 
 cedent debt, where the execution was issued, although not actually Sbot. 2. '^ 
 levied, prior to the execution of the mortgage (1). 
 
 Sect. 3. Mortgage of Chattels personal. 
 
 1. If there has been a legal delivery of chattels by possession 
 of them and confirmation of possession, under an agreement to 
 assign them by way of mortgage, although no assignment has 
 been executed, the Court will restrain assignees in bankruptcy 
 from proceeding in an action for their recovery (2). 
 
 Sect. 4. Shipping. 
 
 1. If there is a strong suspicion of fraud in the party assured, 
 the Court will, on the money being paid into Court, grant an in- 
 junction until the defendant, the plaintiff at Law, has put in an 
 answer to the biU, to restrain him from proceeding further, not- 
 withstanding verdicts have been given for him in other actions 
 against some of the various underwriters, the whole of whom are 
 plaintiffs in Equity (3). 
 
 2. Though a party may have had a prior equitable claim to 
 shipping documents, if he does not properly insist on it, and 
 thereby mislead another party who has a legal right to recover 
 them from him, a Court of Equity will not stay an action by the 
 party misled, against him to recover them (4). 
 
 3. TJiough vessels, which have been agreed to be assigned, have 
 been seized in execution in an action for debt brought against 
 the assignor, and an order for sale in default of payment has been 
 obtained from a Common Law judge, whatever may have been the 
 legal right of the assignor in the vessels before the execution, 
 he would clearly have a right to relief in Equity (5). 
 
 (1) Warner v. Paine, 3 Barb. Ch. Price, 241. 
 
 630 (Amr.). (4) ffoare v. Dresser, 7 H. L. C. 
 
 (2) Piercy v. Humphreys, Piercy v. 290 ; 5 Jur. (N. S.) 371. 
 
 jyowZe, 15 L. T. (N. S.) 345. (5) Withall v. Tuchwell, 5 Jur. 
 
 (3) Kensington v. White, 3 Price, (N. S.) 929. 
 164 ; vide Whitmore v. Thornton, 3 
 
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390 SHIPPING. 
 
 Paet III. 4. If a suit is instituted to carry into effect an agreement, by 
 ^^a^"*^^ giving the plaintiffs relief in respect of a breach of the agreement 
 
 by the defendants, and at the same time, on the ground of such 
 
 breach, to remove them from an office of trust and confidence — 
 for instance, that of ship's husbands — which they hold by virtue 
 of the agreement, and to appoint other persons to such office; 
 the Court, if it consider the plaintiffs entitled to the relief sought, 
 will, upon an interlocutory application, restrain the defendants 
 from prosecuting actions at Law against the plaintiffs under the 
 agreement, to recover damages for removing the defendants from 
 such ofiSce (1). 
 
 (1) Brenan v. Preston, 10 Hare, 331. 
 
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( 391 ) 
 
 CHAPTEE III. 
 
 TaE Doctrines and Pbinoiples in Eestraining Proceedings 
 IN Courts of Law and other Courts, as applicable to the 
 Incidents of Property (Eeal and Personal). 
 
 Sect. 1. Account— Set-off. Part hi. 
 
 1. The jurisdiction of the Courts of Law and Equity with Account, 
 respect to complicated accounts, is so far concurrent, that when 
 parties have elected to proceed at Law, a Court of Equity will not 
 
 stay such proceedings simply on the ground that it could more 
 conveniently dispose of the suit ; but a Court of Equity will not 
 refuse its aid when invoked, because a Court of Law could com- 
 pletely settle the whole of the disputed accounts (1). A Court 
 of Equity has jurisdiction to restrain actions involving compli- 
 cated questions of account, when the accounts can be more con- 
 veniently taken in Equity. Accounts cannot be taken before an 
 arbitrator at Common Law so conveniently as in a Court of 
 Equity; and where there have been complicated transactions, and 
 questions of difficulty are likely to arise in taking the accounts, 
 a Court of Equity will grant an injunction to restrain proceedings 
 at Law. If a plaintiff at Law give notice of an intention to move 
 for a reference, it would seem that this alone is sufficient ground 
 for a Court of Equity to assume jurisdiction over the matter and 
 restrain the action, a reference at Common Law being necessarily 
 a more imperfect method of taking accounts than that furnished 
 by the practice in Equity (2). 
 
 2. If an account has been signed and settled by the plaintiff 
 in Equity, leaving a balance in favour of the defendant in Equity, 
 that is sufficient ground to refuse an injunction to restrain the 
 
 (1) Scott V. Liverpool (Corporation), rican Shipping Co., Oakford v. Same, 
 5 Jur. (N. S.) 105 ; 3 De G. & J. 358. IJ. & H. 108 ; 8 Jur. (N. S.) 1190. 
 
 (2) Croskey v. European and Ame- 
 
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3^2 
 
 ACCO UNT— SET-OFF. 
 
 Part Ilf. 
 
 Chapter III. 
 
 Sect. 1. 
 
 Set-off. 
 
 defendant's proceedings at Law, though there have been subsequent 
 dealings, if the plaintiff has refused to come to a settlement (]). 
 
 '3. A Court of Equity will restrain an action in England to 
 recover moneys, the right to which, as between the parties, depends 
 on the result of a suit in a competent Court abroad, by the plaintiff 
 against the defendant for an account, and will appoint a receiver 
 pending that account (2). 
 
 4. After a decree for an account has been made, the Court will 
 restrain the plaintiff from proceeding at Law in an action com- 
 menced by him pending the suit in Equity (3), it being a con- 
 tempt to proceed at Law after the subject of the cause has been 
 attached in Court (4). 
 
 5. It would seem that a bill will lie for an account by an 
 author against his publisher, where the publisher refuses alto- 
 gether to render any account; but if a publisher render an 
 account, and bring an action for the balance due to him, in the 
 absence of fraud or misstatement, the Court will not allow a suit 
 by the author for an account to go on, but will leave the matter 
 to be determined at Law. But there is no rule that an author 
 may not file a bill for an account against his publisher; although 
 in simple cases, which can be dealt with by a Court of Law, the 
 Court will not assume jurisdiction or interfere with an action to 
 recover a balance of account (5). 
 
 6. If accounts between a servant and agent and principal cannot 
 be opened, and must be considered as settled, a Court of Equity will 
 not restrain an action by the servant and agent for salary, because a 
 question is raised by the principal of damages with a denial that 
 salary is due, such questions are legal ones, and a bill for an 
 account cannot be maintained (6). The bare relation of principal 
 and agent does not entitle the principal to come into Equity for 
 an account, if the matter can be fairly tried at Law (7). 
 
 7. A cross demand, purely legal, accrued after verdict, is no 
 
 (1) Hirst V. Peine, 4 Price, 339. 
 
 (2) Transatlantic Co. v. Pietroni, 
 Job. 604. 
 
 (3) Wilson V. Weatherherd, 2 Mer. 
 406. 
 
 (4) Mocker v. Seed, 1 B. & B. 318 ; 
 et vide Thorpe v. Mattingley, 2 Y. & 
 
 C. 421; 8 L. J. (N. S.) Ex. Eq. 9. 
 
 (5) Barry v. Stevens, 31 Bear. 258 ; 
 31 L. J. (Ch.) 785. 
 
 (6) Hunter v. Belcher, 10 Jur. 
 (N. S.) 663. 
 
 (7) Barry v. Stevens,. 31 Beav. 
 268. 
 
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ACCOUNT— SET-OFF. 393 
 
 ground for an injunction to stay proceedings on the verdict. It is Paet hi. 
 not reasonable that a cross demand acquired subsequent to a ver- ^Sec™!! 
 diet, should delay the plaintiff at Law from the benefit of his ver- 
 diet until the validity of the demand of the plaintiff in Equity — 
 defendant at Law — is ascertained in a second trial, and in such a 
 case Equity must follow the Law (1). 
 
 8. If a defendant has a personal demand against a plaintiff 
 who has been decreed entitled to a charge of greater amount on 
 the defendant's estate, and the defendant has got a judgment 
 against the plaintiff, he will be restrained from issuing execu- 
 tion (2). 
 
 9. If a set-off is merely legal, no injunction to restrain pro- 
 ceedings at Law will be granted (3). As where a landlord pro- 
 ceeds at Law for rent, and the tenant claims to set off a legal 
 demand against the distress. The policy of the law does not 
 permit a set-off against a distress for rent ; and a Court of Equity 
 must follow the Law, and cannot relieve against the rule of law 
 where the claim to set off is founded on a legal demand (4). If 
 the subjects in dispute are matter of set-off and capable of proof 
 at Law, and may be disposed of altogether at Law, a Court of 
 Equity will not interfere (5). But if there is a cross claim 
 against a plaintiff at Law in a case where there is no right of set- 
 off in the action, a Court of Equity will restrain the proceedings 
 at Law (6). A bill will not lie against a landlord to restrain pro- 
 ceedings upon a replevin bond on the ground of set off against the 
 rent distrained for (7). So a private debt due from a trustee — for 
 instance, costs due from him in an action of ejectment — cannot be 
 set off against a debt — for instance, rent — owing to the trustee 
 in his character of trustee, such a proposition is totally unten- 
 able (8). 
 
 (1) Whyte V. O'Brien, 1 S. & S. (6) Cawdor {Lord) v. Lewis, 1 Y. 
 551. & C. 427. 
 
 (2) Austin V. Tynte, 2 Moll. 486. (7) Pratt v. Keith, 33 L. J. (Ch.) 
 
 (3) Townrow v. Benson, 3 Madd. 528, 530. 
 
 203, 209. (8) lb. (See further as to the sub- 
 
 C4) lb. ; et vide Pratt v. Keith, 33 ject of set-off, note (3), p. 228, ante, on 
 
 L. J. (Ch.) 528. the " Supreme Court of Judicature Act, 
 
 (5) Binwiddie v. Bailey, 6 Ves. 1875," Order xix., rule 3.) 
 
 136. 
 
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394 
 
 PARTNERSHIP— BANKEUPTCY. 
 
 Part III. 
 Ch*ptee III. 
 
 Partnership. 
 
 Bankruptcy. 
 
 Sect. 2. Partnership — Bankruptcy. 
 
 1. A separate creditor of one partner has no right against the 
 joint property of the partnership, farther than the separate interest 
 of that partner ; that is to say, his share upon a division of the 
 surplus, subject to the accounts of the partnership (1). In analogy 
 with this rule, if a creditor of a firm agree that he will not press 
 his claims at maturity, if each partner will give his own indorsed 
 note for half the amount ; and one of the partners having com- 
 plied with the condition, but the other not having done so, a suit 
 is brought against the firm, the former partner is entitled to an 
 injunction to restrain such suit until his note shall be delivered 
 up to him (2). 
 
 2. A Court of Equity will always restrain an action brought for 
 a dividend, as contravening the bankrupt laws. Such actions 
 have been maintained ; but whatever may be the decisions of 
 Courts of Law on the subject, it is the duty of the Great Seal not 
 to permit them. The administration of the effects is vested in the 
 Great Seal ; and the creditor coming in to prove his debts sub- 
 mits to that authority. There may, indeed, be a case when an 
 action may be permitted — for instance, if it were necessary to give 
 the creditor the benefit of a personal remedy against an assignee 
 who had wasted the effects ; but then it must be under the con- 
 trol of the Court (3). If it is the intention of the parties to a 
 deed of inspectorship to deal with each other as if the matter 
 were in bankruptcy, a creditor who has proved for and received 
 dividends on his whole debt secured by a policy, will not be allowed 
 to sue the debtor for breach of covenant in not paying further pre- 
 miums on the policy (4). If a creditor having a security, whether of 
 no value or of value, make his election to prove for the whole debt, 
 his security will be the property of the other creditors (5). 
 
 3. Equity wiU. not restrain further proceedings at Law upon a 
 verdict obtained through the defendant's neglect to produce his 
 certificate in evidence (6). 
 
 (1) Taylor v. Fields, 4 Ves. 396. 
 
 (2) Chads V. Eorr, 1 Clark, 432 
 (Amr.). 
 
 (3) Assignees of Oardiner v. Shan- 
 non, 2 Sch. & Lef. 229. 
 
 (4) Kingsford v. Swvnford, 4 Drew. 
 705. 
 
 (5) lb. 
 
 (6) Lingard v. Hibbertson, 1 Rose, 
 459. 
 
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INTERPLEADER. 395 
 
 Sect. 3. Interpleader. Part m. 
 
 Chapter III. 
 
 1. In order to support an interpleader suit there must be con- 
 flicting claims (1). In a case of interpleader, though the claim of 
 the principal defendant is legal, and the claims of the other de- 
 fendant are derived from him, and equitable only, and do not 
 extend to the whole amount recovered at Law, yet an injunction 
 restraining legal proceedings may be obtained on an interpleader 
 bill (2). The Interpleader Act, 1 & 2 Will. 4, c. 58, and the 
 1 & 2 Vict. c. 45, " An Act to extend the Jurisdiction of the 
 Judges of the superior Courts of Common Law," apply only to 
 those cases where the opposite claims of both parties depend on 
 legal rights, and not on matters peculiarly of equitable jurisdic- 
 tion, and in such cases as the latter, a Court of Equity will restrain 
 proceedings in an issue at Law directed by a Judge of a Court of 
 Common Law, under the order of interpleader (3). A Court of 
 Equity will, on a bill of interpleader, restrain a suit in Equity by 
 one defendant, and an action at Law by another (4). 
 
 2. If two parties claim a real estate under different wills, the 
 validity of which are in controversy, the Court will restrain an 
 action against the tenant by one of the claimants, upon a bill of 
 interpleader by the tenant against both claimants, and bringing 
 his rent into Court, and an issue will be directed to determine the 
 rights of the defendants (5). If one of the defendants to a bill of 
 interpleader insists that the effect of some act of the plaintiff is to 
 deprive him, as against that defendant, of the right, which he 
 wpuld otherwise have, to treat the case as one of interpleader, a 
 Court of Equity will not, on that account, refuse an injunction, 
 unless it be satisfied either that the act relied on has the effect 
 which the defendant attributes to it, or at least that the question, 
 whether it has that effect or not, is a real and substantial question 
 to be tried ; and therefore, although it appears that the plaintiff 
 has, by a memorandum in writing, acknowledged the title of one 
 of the parties, and has paid rent to him for nearly two years after 
 
 (1) Elliott V. Eempston, 15 Ir. Ch. (3) Langton v. Horton, 3 Beav. 464. 
 Eep. 120. (4) Crawford v. Fisher, 10 Sim. 
 
 (2) Hamilton v. Marks, 5 De G. & 479. 
 
 Sm. 638. (5) Townley v. Deare, 3 Beav. 213. 
 
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396 INTERPLEADER. 
 
 Pabt III. the original landlord's death ; yet, if such acknowledgment and 
 
 Ohapter TTT 
 
 Sect. 3. , payment appears to have been in ignorance of his title being dis- 
 puted, the Court will restrain an action by that party for the 
 recovery of rent (1). So although a stakeholder who has entered 
 into a new contract, binding at Law, with one of the rival claimants 
 of the same demand, cannot maintain an interpleader suit ; yet if 
 such contract was obtained by misrepresentation, the Court will 
 restrain actions commenced against him by both claimants (2). A 
 tenant cannot sustain a bill of interpleader against his landlord, 
 unless the title is affected by some act done by the landlord sub- 
 sequently to the lease (3). But if two parties claiming adversely 
 an estate under the limitations of a settlement which contaitts a 
 power of leasing, bring actions against a tenant for rent reserved 
 under a lease made under the power, that is a proper case for an 
 interpleader (4). 
 
 3. Although an attachment in the Lord Mayor's Court obtained 
 by one party, may be inoperative while a judgment obtained by 
 another party remains unsatisfied, yet the garnishees ought not to 
 be put to expense in defending proceedings in which they have no 
 interest, and they can therefore file a bill of interpleader (5). 
 Laches in filing a biU of interpleader is a bar to the applica- 
 tion (6). 
 
 4. It would appear that a bill of interpleader will not lie 
 which is in the nature of, and substantially a bill for, a new trial, 
 where the only point at issue is whether the plaintiff is a debtor 
 at Law, and it has been decided at Law that he is (7). 
 
 5. Courts of Equity and Common Law have concurrent jurisdic- 
 tion in interpleader ; but a Court of Equity, if first resorted to, 
 will not refuse to entertain a bill of interpleader, although a Court 
 of Law might have been resorted to on the facts stated in the 
 bill (8). 
 
 (1) Jew V. Wood, 1 Cr. & P. 185; (5) JVeZson v. Sorter, 10 Jur (N. S.) 
 3 Beav. 579. 832 ; 33 L. J. (Cli.) 705, 
 
 (2) Costello v. Martin, 1 Ir. K. Eq. (6) Larahrie v. Brown, 1 De G. & 
 50. J. 204; 26 L. J. (Ch ) 605. 
 
 (3) Cook V. RosOyn {Earl), 1 Giff. (7) lb. 
 
 167. ; (8) Oriental Bank Corporation v. 
 
 (4) Birmingham v. Trick, 7 Ir. R. Nicholson, Same v. Calrow, 3 Jur. 
 Eq. 221. (N. S.) 857. 
 
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DISCOVERY, BILL OF— ACTIONS, PBOCEBDINGS AT LAW, &c. 397 
 
 6. Although it may be doubtful whether a case is properly one Paet hi. 
 for interpleader — as for instance, where moneys might have been Chapter III. 
 
 Safely paid by the plaintiff — yet if the money is, however, paid 
 
 into Court, and the suit may be said to have been adopted by all 
 
 parties, it is then too late to take that objection (1). A party 
 cannot file a bill of interpleader where one of the defendants has 
 no title, and the title of another defendant claiming under him is 
 subordinate to that of a third defendant (2). 
 
 7. The sheriff seizing goods under a fi. fa. issuing out of Chan- 
 cery, is entitled to file in Equity a bill of interpleader where the 
 goods or the produce thereof are claimed by a third party (3)_ 
 But the sheriff cannot file such a bill until he has given notice to 
 the judgment creditor of the adveree claims to the goods seized (4). 
 
 Sect. 4. Discovery, Bill of, in aid of Action at Law — Actions, 
 Proceedings at Law, Audita querela. Verdicts, Judgments, 
 Outlawry, Interdicts, Damages. 
 
 1. If a plaintiff in Equity is entitled to a discovery in aid of his Discovery, bill 
 defence in an action at Law, he is entitled to an injunction to action at Law. 
 restrain the action until he has obtained the discovery (5). If a 
 defendant fail in proving a material fact at Law, of which he 
 afterwards obtains a discovery fyom the adverse party in Equity, 
 
 it is a ground for granting an injunction, though he would not be 
 permitted to prove the fact by any other witnesses whom he could 
 have examined at Law (6). 
 
 2. If an order has been made at Law by consent, staying an Actions, Pro- 
 action and directing the payment of a certain sum of money by Law™Audita, 
 the defendant to the plaintiff, which sum the plaintiff, afterwards 3"T® j' J®'^' 
 accepts ; yet a Court of Equity will set aside the order if the ments, Out- 
 plaintiff was ignorant at the time of the order, and at the time diets, ' 
 
 he received the money, that a representation, which induced him ^'"^g^s. 
 
 (1) Myers v. United, See., Quwraniee 806 ; 16 L. T. (N. S.) 49. 
 
 Life Assurance Co., 7 De Gr. M. & G. (4) Dalton v. Furness, 35 Beav. 
 
 112. 461. 
 
 (2) Desborough v. Harris, 5 De Gr. (5) Harris v. Colktt, 26 Beav. 222, 
 M. &G. 439. 227. 
 
 (3) Child V. Mann, L. E. 3 Bq. (6) Hanlcey v. ternon, 2 Cox, 12. 
 
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398 
 
 DISCOV'ERY, BILL OF— ACTIONS, PROCEEDINGS AT LAW, &c. 
 
 Paet III. to consent to the order, was fraudulent (1). The Court will 
 Chapter III. ' , ^ ^ . , . 
 
 SEcr. 4. restrain an action brought after a decree upon the subject matter 
 
 of the suit, pending the proceedings in the suit (2). A Court of 
 Equity will, if there are circumstances in the case which may 
 create equities between the parties — as where it is a question 
 whether the plaintiff and defendant do not stand in the relation 
 of vendor and purchaser — stay process of outlawry and all further 
 proceedings at Law against the plaintiff; the plaintiff in Equity 
 to give judgment in the action, with stay of execution, to be dealt 
 with as the Court should thereafter direct (3). A Court of Equity 
 will restrain proceedings on the part of two joint debtors on an 
 avditd qyberela to be relieved at Law from a joint judgment, on the 
 ground of a discharge from custody of one of them, if the dis- 
 charge arose from a desire by the judgment creditor not to 
 commit a breach of an injunction obtained by the debtors (4). 
 
 3. The Court will refuse to stay proceedings in an action, 
 though the plaintiff seek a discovery as to documents for his 
 defence at Law, if there is delay in applying for the injunction — 
 as, for instance, more than a year after the action (5). 
 
 4. The Court will stay an action at Law for damages for an 
 arrest under an irregular writ of me exeat regno, issued from 
 Chancery (6). If an irregularity has been committed by an 
 officer of the Court in executing its process, the Court will not 
 permit a party to proceed in an action at Law against its officer ; 
 and, if proper, will settle a compensation (7). If a party is 
 arrested by virtue of the process of the Court of Chancery, which 
 turns out to be irregular, he should apply to the Court, either 
 for a reference to settle a proper compensation, or for liberty to 
 bring an action (8). 
 
 5. There are cases in which Equity will relieve against verdicts ; 
 
 (1) Dumn V. Cox, 11 Hare, 61. War. 86. 
 
 (2) Frwnk v. Basnett, 2 My. & K. (7) Chalie v. Pickering, 1 Keen, 
 618. 749; et vide Slunddl v. Gladstone, 
 
 (3) Drummond v. Pigou, 2 My. & 9 Sim. 455 ; Ambrose v. Dunmow 
 K. 168. Union, 8 Beav. 43 ; In re Weaver, 
 
 (4) Clerhe v. JMbpre, 4" Bro. P. C. 2 My. & Cr. 441. 
 
 723. (8) Bricknell v. Stamford, 1 Beav. 
 
 ' (5) South Eastern Sailw, Co. v. 368 ; et vide Phillips v. Worth, 2 R'uss. 
 
 Martin, 1 H. & T. 69 ; 2 Ph. 758. & My. 638. 
 (6) Barley v. Nicholson, 2 D. & 
 
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ARBITRATION, AWARDS. 399 
 
 as where the plaintiff at Law knew the fact of his own knowledge Pabt hi. 
 
 • Chapter III 
 
 to be otherwise than what the jury found, and the defendant at Ssor. 4. 
 
 Law was ignorant of it at the trial ; but where a defendant submits 
 
 to try it at Law first, when he naight, by a bill of discovery, have 
 
 come at the fact before such trial was had, the Court will not 
 
 always relieve against a verdict (1). An interdict obtained in one 
 
 suit will be set aside in another on the ground that the judgment, 
 
 or interdict, is res inter alios actse, and binding only on the parties 
 
 to the suit in which the interdict was obtained (2). 
 
 6. If land is laid out in town lots,, or otherwise divided among 
 many occupants, who are threatened with numerous suits, a bill 
 
 ■ in Equity lies to quiet the title, and enjoin a suit at Law for a 
 particular fractional part, although the complainants have a legal 
 title, and therefore an adequate remedy at Law in each particular 
 case. The object of such bill is to relieve the title from the 
 embarrassment of the adverse claims, and also to restrain a 
 multiplicity of suits (3). 
 
 7. The smallness of damages recovered in an action will not 
 prevent a Court of Equity from interfering (4). 
 
 Sect. 5. Arbitration, Awards. 
 
 1. A Court of Equity will, under circumstances, grant an in- 
 junction to restrain proceeding in an arbitration — as, for instance, 
 where the bill strikes at the root of an agreement, of which an 
 arbitration is a part execution (5). The Court of Chancery has 
 no jurisdiction to set aside an award made under a reference of 
 an action, whether the same is or is not under the 9 & 10 Will. 3, 
 c. 15 (6). So, if an arbitrator, upon a reference of an action at 
 Common Law to arbitration, makes a mistake in his award, the 
 Court of Chancery has no jurisdiction to remedy the mistake ; 
 
 (1) Williams v. Lee, 3 Atk. 224 ; 352 ; vide Woodruff v. Fisher, 17 
 vide Anon., 3 Ch. Rep. 25. Barb. 224 (Amr.). 
 
 (2) . The Natal Land and Coloniza- (4) Bochdale Canal Co. v. King, 2 
 tion Co. V. Oood, L. R. 2 P. C. 121 ; Sim. (N. S.) 78. 
 
 16 W. R. 1086 ; 5 Moo. P. C. C. (5) Mylne v. Dickinson, Coop. 196. 
 
 (N. S.) 132. (6) Harding v. Wichham, 2 J. & H. 
 
 (3) Crews v. Burchaniy. 1 Black. 676.. 
 
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400 GAMING, GAMBLING, WAGERING TRANSACTIONS. 
 
 Part III. that can only be done in the Court of Law where the action was 
 Sect. 5. brought (1). If authority to make an award has been conferred 
 
 upon commissioners by Act of Parliament, the Court has no 
 
 jurisdiction, by way of appeal, to set it aside (2). A Court of 
 Equity has no jurisdiction to alter an award made by an arbi- 
 trator appointed under the provisions of an Act of Parliament, 
 unless there is error upon its face, or it is shewn to have been 
 corruptly obtained (3). So if part of an award is eadra vires and 
 severable, the Court will reject that part and stay proceedings 
 thereon, and upholQ the rest of the award (4). The Court will 
 admit evidence of an arbitrator in explanation of his award ; and 
 if it appear from such evidence that there has been a mistake on 
 his part, either as to the subject matter referred to him, or in 
 point of legal principle affecting the basis on which the award 
 is made, the award will be set aside or referred back to the arbi- 
 trator (5). Delay and what amounts to acquiescence will preclude 
 a party from contesting an award (6). 
 
 Sect. 6. Gaming, Gambling, Wagering Transactions. 
 
 1. Equity has jurisdiction to relieve against notes, bills, bonds, 
 mortgages, and other securities or conveyances, given in respect 
 of a gambling transaction, as by decreeing repayment of money 
 paid under them (7), or restraining proceedings at Law, and 
 ordering them to be delivered up to be cancelled (8). If the 
 consideration for a judgment is a gambling transaction, the Court 
 will restrain a sale under a fi. fa. on the judgment (9). If a 
 defendant deny all knowledge of the gambling transaction out 
 
 (1) Qrafham v. TurnhuU, 44 L. J. (6) Pa/rrott v. 8hellard, 16 W. E. 
 (Oh.) 538 ; 23 W. R. 645. 928. 
 
 (2) Newry and EnnisUllin Railw. (7) Rawden v. Shadwell, Amb. 269. 
 Co. V. Ulster Railw. Co., 2 Jur. (N. S.) (8) Newman v. Franco, 2 Anstr. 
 60, 936. 519 ; Andrews v. Berry, 3 Anstr. 634 ; 
 
 (3) Armitage v. Walker, 2 K. & J. Blachwell v. Redman, 1 Oh. Rep. 48 ; 
 211 ; 2 Jur. (N. S.) 13. Humphrey v. Rigly, 2 Freem. 223. 
 
 (4) lb. (9) Cremorne (Lord) v. Bruen, 2 
 
 (5) Dare VaMey Railw. Co., In re, Moll. 496. 
 L. R. 6 Bq. 429 ; 37 L. J. (Oh.) 719. 
 
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GAMTNG, GAMBLING, WAGERING TRANSACTIONS. 401 
 
 of which bills of exchange are said to have originated, and swear Paut ni. 
 that he gave valuable consideration for them, and the plaintiff sect. 6. 
 produce no evidence in support of his case, the Court will not 
 restrain proceedings at Law upon the bills (1). 
 
 2. Gambling debts contracted in this country are void, and 
 cannot be recovered ; but money won at play, or lent for the 
 purpose of gambling, in a country where the games in question 
 are not Ulegal, may be recovered in the Courts of this country ; 
 and therefore a Court of Equity will not restrain an action 
 brought to recover the balance of an account, for which an 1. 0. U. 
 has been given, though an unascertained portion of the balance 
 is admitted to consist of money lent for the purpose of playing 
 at public tables in a country where it does not appear that the 
 games played at such tables were forbidden by the laws of that 
 
 country (2). 
 
 (1) Wynne v. Jackson, 2 Russ. 351. 
 
 (2) Quarrier v. Colston, 1 Ph. 147. 
 
 2 D 
 
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'402 ) 
 
 CHAPTER IV. 
 
 The Doctrines and Peinciples in Restraining Proceedings 
 IN Courts op Law and other Courts, as applicable to 
 Persons, and relating to Persons. 
 
 Paet III. Sect. 1. Principal and Agent. 
 
 1. If an agent is, qua agent, obliged to indorse a bill, and the 
 fact is known to indorsees, a Court of Equity will restrain pro- 
 ceedings thereon against the agent (1). The Court will not 
 restrain a confidential agent from suing his employer upon a 
 bond given by the latter, in respect of demands that arose during 
 the continuance of the agency, but given after its termination ; 
 however, if a case were made of peculiar distress at the time of 
 the bond given, the Court might interfere (2). 
 
 Sect. 2. Creditor, Debtor and Creditor — Swrety. 
 
 Creditor, 1. The principle upon which a Court of Equity restrains a 
 
 creditor?" creditor from enforcing his legal rights against the estate of 
 a deceased debtor is, that the creditor is enabled to bring into 
 Equity, with some specified exceptions, all his legal rights, and 
 that the validity of his debt must be determined in Equity upon 
 the same principle as at Law (3). But the Court will not 
 restrain a creditor from prosecuting his legal remedy, against the 
 personal representatives of his debtor, unless there is a decree 
 under which the creditor has a present right to go in to prove his 
 debt (4). And the Court will give the creditor all his costs at 
 
 (1) Eideon v. Dilworth, 5 Price, (3) Whitaker v. Wright, 2 Hare, 
 564. 310. 
 
 (2) Sfrathmore v. Fortune, 1 L. J. (4) Rankin v. Earwood, 2 Ph. 22 ; 
 (Ch.) 108. 5 Hare, 215. 
 
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CREDITOR, DEBTOR AND CREDITOR— SURETY. 403 
 
 Law and the costs of the motion (1). However, the Court will Part III. 
 
 Ghaftbb IV 
 not restrain a creditor of a testator who has obtained judgment Seot. 2. 
 
 against an executor de bonis tedatoris, before a decree has been 
 made in an administration suit, from issuing execution (2). Nor, 
 after a decree to account, will a creditor be restrained from pro- 
 ceeding at Law upon a verdict obtained before the decree, which 
 would entitle him to a judgment de bonis propriis against an 
 executor (3). After a decree for administration iu a creditor's 
 suit, although the Court will restrain a creditor of the testator 
 from proceediag at Law against the assets, yet it will not restrain 
 him from proceeding against the executors personally (4). If 
 they have so managed the matter by their plea at Law as to 
 make themselves personally liable, and the creditor obtain a 
 judgment de bonis testatoris et si non de propriis, a Court of 
 Equity will leave them to be dealt with at Law, as the Court 
 of Law will permit (5). But a Court of Equity will not suffer 
 any judgment that may be recovered at Law, to interfere with 
 its own decree (6). 
 
 2. The Court will not restrain a creditor from taking proceed- 
 ings under a charging order nisi, upon a judgment obtained 
 against the debtor, upon shares belonging to a deceased debtor, 
 obtained prior to a decree for the administration of his estate, 
 though on the same day (7). 
 
 3. If an heir plead a false plea at Law to an action by a bond 
 creditor, the Court will, after an administration decree, restrain 
 the creditor from taking out execution against the ancestor's 
 assets, but not from proceeding against the heir personally (8). 
 But if, after a decree for administration of assets, an executor 
 plead a false plea to an action brought against him by a creditor 
 of the testator, in order to have an opportunity of applying for 
 an injunction to restrain the action, the Court will grant an 
 injunction, and the creditor, in such a case, is not entitled to a 
 
 (1) Turner v. Connor, 15 Sim. 630. 383. 
 
 (2) Boberts, In re. Fowler v. Boherts, (6) lb. ; et vide Lee v. Park, 1 
 2 Gift 226. Keen, 714. 
 
 (3) Terrewest v. Featherhy, 2 Mer. (7) Haly v. Barry, L. R. 3 Ch. 452 ; 
 480. 37 L. J. (Ch.) 723 ; 16 W. R. 654 ; 
 
 (4) Kent v. Bickering, 5 Sim. 569. 18 L. T. (N. S.) 491. 
 
 (5) Buries v. Popphwell, 10 Sim. (8) Price v. Evans, 4 Sim. 514. 
 
 2 D 2 
 
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404 CREDITOR, DEBTOR AND CREDITOR— SURETY. 
 
 Pabt III. judgment against the executor de bonis propriis (1). And if an 
 Sect. 2. administration decree has been pronounced, pending au action, 
 the Court will restrain the creditor from proceeding at Law, 
 upon payment of his costs at Law, although on a set-off and a 
 plene administravit prmter pleaded, the verdict was against the 
 executor on all the pleas (2). I^ an administration decree has 
 been obtained before action brought, by a creditor having no 
 notice of the decree, although he will be restrained from proceed- 
 ing at Law, yet all his costs will be ordered to be first paid (3), 
 Although a creditor may have no notice of a decree for payment 
 of debts, yet he will not be permitted to proceed at Law, and 
 thus render the decree nugatory (4). If a creditor continue his 
 proceedings at Law after notice of a decree for administration, 
 he will be ordered to pay the costs of a motion to restrain him, 
 but will be allowed to set them off against the costs of the pro- 
 ceedings at Law incurred prior to the notice (5). But after the 
 common decree in a creditor's suit, the executor not denying that 
 he has assets, nor disputing the debt, cannot obtain an injunction 
 to restrain an action by a creditor of the estate against him, com- 
 menced before the suit, but not proceeded with since notice of 
 the decree, except upon the terms of paying the costs at Law, and 
 of the motion for the injunction (6). After a decree to account in 
 an administration suit, the Court will restrain a creditor from 
 proceeding in a suit instituted by himself, only when the executor 
 has given an account of the assets and brought the amount into 
 Court (7) ; for it would seem that a creditor whose suit in Equity 
 is stayed, as well as a creditor who is restrained from prosecuting 
 an action at Law, is entitled to have a discovery of assets pos- 
 sessed by the executor, and payment of the amount into Court (8). 
 After a decree in a creditor's suit, the Court will stop a creditor 
 from proceeding in another suit, for the recovery of a demand 
 against the estate of a testator, if the object can be obtained in 
 the first suit ; but, seem, if the creditor would be unable to obtain 
 
 (1) Fielden v. FieUen, 1 S. & S. 255. 469 ; et vide Pepper v. Foster, 6 Ir. 
 
 (2) Lord V. Wormhighton, Jac. 148. Eq. Eep. 384. 
 
 (3) Farlow v. Wilson, XI Price, 95. (6) Oole v. Burgess, Kay (App.), 1. 
 
 (4) Brooks v. Reynolds, Dick. 603 ; (7) Eoops v. Kingston (Earl of), 
 1 Bro. C. C. 183. Fl. & K. 246. 
 
 (5) Gardner v. Garrett, 20 Beav. (8) Macrae v. Smith, 2 K. & J. 411. 
 
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CREDITOR, DEBTOE AND CREDITOR— SURETY. 405 
 
 relief in the first suit (1). But though a creditor has been Paet III. 
 restrained from proceeding at Law on account of a decree ob- seot. 2. 
 tained, he will be allowed to prosecute a suit wbere proceedings 
 on the decree have been delayed for some years (2). A creditor 
 proceeding against an executor at Law, after notice of a decree to 
 account, is so far committing a contempt, that upon application 
 for an injunction, the Court will refuse him the costs of further 
 proceedings at Law, and the costs of the application (3). After 
 a decree for administration of a testator's estate, creditors will be 
 restrained from suing at Law on the application of a legatee (4). 
 
 4. If a Court of Common Law has full jurisdiction to deal with 
 the case, a Court of Equity will refuse an injunction — ras, for in- 
 stance, upon a bill by a shareholder in a company, to restrain 
 proceedings at Law against him to recover from him individually 
 a debt due from the company, without asking for other relief (5). 
 If a creditor obtain judgment against a company without collusion 
 or fraud, and proceed to enforce it by scire facias against a share- 
 holder, a Court of Equity will not restrain the proceedings, or 
 inquire into the validity of the judgment, but will leave the 
 shareholder to raise his defence by pleading to the scire facias (6). 
 
 5. A Court, of Equity will restrain a judgment creditor of a 
 vendor, after suing out an elegit, from proceeding in ejectment 
 against a purchaser who is in possession and files a bill for 
 specific performance (7). So the Court wUl restrain a mortgagee 
 from proceeding in an action against the mortgagor, to recover 
 the mortgage money and interest, where the question is raised 
 whether the defendant is mortgagee only, or whether the parties 
 stood in the relation of vendor and purchaser (8). 
 
 6. If a garnishee order has been obtained by a judgment 
 creditor against a receiver, and the receiver pays over to the 
 judgment creditor moneys in his hands as such receiver, the 
 
 (1) Oosterton v. Gosterton, 2 Keen, (5) Sardinge v. Wehiter, 1 Dr. & 
 774 ; et vide Pidgem v. D' Alton, J. & Sm. 101 ; 6 Jur. (N. S.) 88. 
 
 C. 276. (6) Green v. Nixon, 23 Beav. 530 ; • 
 
 (2) Powell V. Walworth, 2 Madd. 3 Jur. (N. S.) 993. 
 
 183. (7) Brunton v. Neale, 14 L. J. 
 
 (3) Ourre v. Bowyer, 3 Madd. 456. (N. S.) Ch. 8. 
 
 (4) Clarke v. Earl Ormonde, Jac. (8) Drummond v. Pigou, 2 Myl. & 
 122. K. 168 ; 4 L. J. (N. S.) Ch. 27, 
 
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406 CREDITOR, DEBTOR AND CREDITOR-SURETY. 
 
 Part III. judgment creditor will be ordered to repay the moneys (1). A 
 Chapter IV. . , ,. . , i . o , 
 
 Sect. 2. judgment creditor who has notice of the possession of lands by 
 
 a receiver, will not be allowed to continue proceedings by eject- 
 ment to recover the possession of them, unless they are taken 
 with the leave of the Court (2). Parties to a suit, and all persons 
 coming in under the decree, will be enjoined from disturbing a 
 purchaser. And where there is original jurisdiction (as in carry- 
 ing a trust into execution), if old judgment creditors wiU not 
 come in, they will be restrained from proceeding against those 
 lands in future (3). 
 Surety. 7. A promise by a bond creditor made to the principal debtor 
 
 without consideration', and which does not bind the creditor at 
 Law or in Equity, will not discharge a co-obligor who joined in 
 the bond as surety only ; and a Court of Equity will not restrain 
 the bond creditor from proceeding at Law against the co-obligor, 
 upon his liability as a surety (4). It is not every alteration of 
 position that authorizes a surety to come to a Court of Equity 
 and claim to be discharged from his liability. There may be 
 many such alterations which do not vary the rights of the surety 
 as against the principal debtor. The real test is, has the creditor 
 in any way altered the position of the surety with reference to 
 liis remedies against the principal debtor ? If not, then a Court 
 of Equity does not interfere (5). But if a creditor give time to 
 a debtor without notice to the surety, this will release the surety, 
 and an injunction will be granted to restrain proceedings at Law 
 against him (6). So if there has been an agreement to refer, and 
 a reference between landlord and tenant, without the concurrence 
 of the surety in a replevin bond, of matters in difference, whereby 
 the performance of the condition of the bond (to proceed with 
 effect) has been suspended, a Court of Equity will restrain the 
 landlord from proceeding at Law against the sureties (7). So if 
 by articles of partnership the partnership ought to be wound up 
 
 (1) De Winton v. Brecon (Mayor (5) lb. 
 
 • of), 28 Beav. 200; 6 Jur. (N. S.) (6) Ireland {Bank of) y. Beresford, 
 
 1046. 6 Dow. 233 ; et vide Wright v. Sandars, 
 
 (2) Lees v. Waring, 1 Hog. 216. 3 Jur. (N. S.) 504. 
 
 (3) StacJcpoole v. Curtis, 2 Moll. (7) Bowmaker v. Moore, 3 Price, 
 604. 214 ; 7 Price, 223. 
 
 (4) Tucker v. Laing, 2 K, & J. 745. 
 
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CEBDITOE, DEBTOR AND OEEDITOR— SUBETY. 407 
 
 at the expiration of the term limited by the articles, it is not Past III. 
 competent to one of the partners, who has taken a bond from the sbot.\. 
 other to indemnify him against loss in respect of the partnership, 
 to agree to its continuance without the consent of the surety 
 upon the bond, and yet to hold him liable as surety; and the 
 bond creditor, therefore, will not be entitled to put the bond in 
 force against the surety ; by this continuation the surety is dis- 
 charged, and whether that circumstance would afford a defence 
 to an action on the bond or not, a Court of Equity will restrain 
 the obligee from proceeding in such an action (1). So if a 
 creditor having, among other things, a bond with a surety, take 
 a mortgage from the principal debtor, and agree to receiye the 
 residue by instalments, secured by warrant, &c., without prejudice 
 to any security he holds, an injunction will be granted against 
 suing the surety (2). So if a creditor having recovered judgment 
 against the principal and surety, levy his execution on property of 
 the principal, and on payment of part of the execution direct the 
 sheriff to restore the property, and give further time to pay 
 the residue, without the assent of the surety, the judgment is 
 thereby discharged as to the surety (3). But the rule of Law is 
 always this, that you may suspend your rights for ever against 
 the principal debtor, and yet preserve your rights against the 
 surety ; and that, even though you put into a deed words which in 
 form are a release, a Court of Equity will not give that effect to 
 them, but will take the whole of the deed together, and effectuate 
 that which is the real intention of the parties (4). If the effect 
 of a deed is to give a qualified release, and not to extinguish the 
 debt, the remedy of the creditor against the surety is not 
 barred,(5). So if a deed only amount to a covenant not to sue 
 the debtor, the surety will not be released (6). A transaction 
 which would otherwise operate as a release of a surety will not 
 have that effect if the remedy against the surety is reserved (7). 
 
 (1) Small V. Cwrrie, 5 De G. M. & G. 17 W. E. 72, 385 ; L. E. 4 Ch. 204 ; 
 141; 18 Jur. 731 ; 23 L. J. (Ch.) 746. 38 L. J. (Ch.) 220 ; 20 L. T. (N. S.) 
 
 (2) Boultbee v. Stubbs, 18 Ves. 20. 131. 
 
 (3) Badrd v. Bice, 1 Call. 18 (Amr.) ; (5) lb. 
 et vide Kennedy v. Mvans, 31 111. 250 (6) lb. 
 
 (Amr.). (7) Wyke v. Bogers, 1 Do Gr. M. & 
 
 (4) Green v. Wynn, L. R. 7 Eq. 28 ; G. 408 ; 21 L. J. (ChO 611. 
 
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408 
 
 HUSBAND AND WIFE— GUARDIAN AND WARD. 
 
 Paet III. 
 
 Chapter IV. 
 
 Sect. 2. 
 
 8. A creditor who appropriates the subject matter of a security 
 for a debt to any other purpose than the debt, by that act releases 
 a surety, who became so with the knowledge that the debt was 
 secured by that subject matter (1). 
 
 9. A surety, who has contracted to become so, on the under- 
 standing that he is to be co-surety with another, is wholly released 
 in Equity if the intended co-surety does not execute (2). And 
 a Court of Equity will restrain all proceedings at Law under a 
 deed executed by the plaintiff as surety, but never by the other 
 surety (3). If a creditor agree that he will, at any time when 
 requested by the surety, enter up judgment and issue execution, 
 and the creditor omit to file the warrant of attorney, and the 
 debtor become bankrupt, the omission to do so will discharge 
 the surety (4). But if the transactions which yary the position 
 of the surety are known to the surety, he will not be dis- 
 charged (5). Yet if the obligees in a bond, by their own conduct, 
 prevent the performance of the object intended to be secured by 
 the bond, the surety in the bond will be discharged, and the 
 obligees restrained from proceeding at Law against him (6). 
 
 10. The Court will not restrain an action against a surety upon 
 an interlocutory application, in a state of circumsta,nces not shew- 
 ing a sufficient probability that such a case would be proved, on 
 further investigation, as would entitle the surety to be protected 
 by a perpetual injunction at the hearing (7). 
 
 Husband and 
 wife. 
 
 Sect. 3. Husband and Wife — Guardian and Ward. 
 
 1. A Court of Equity will restrain a wife from proceeding in 
 the Divorce Court for a restitution of conjugal rights, until the 
 hearing of the cause, if a deed of separation containing a covenant 
 
 (1) Pearl v. Deacon, 3 Jur. (N. S.) 
 879, 1187 ; 24 Beav. 186 ; 1 De G. & 
 J. 461. 
 
 (2) Evans v. Brerribridge, 8 De G. 
 M. & G. 100 ; 2 K. & J. 174; 2 Jur. 
 (N. S.) 134, 311 ; 25 L. J. (Oh.) 102, 
 334. 
 
 (3) lb. 
 
 (4) Watson v. Alkock, 4 De G. M. 
 & G. 242. 
 
 (5) Woodcock V. Oxford and Wor- 
 cester Bailw. Co., 1 Drew. 521. 
 
 (6) Blest V. Brovm, 4 De G. F. & J. 
 367 ; 3 Giff. 450. 
 
 (7) Dawson v. Lawes, 1 Kay, 280. 
 
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ATTOBNEY AND CLIENT. 409 
 
 not to sue in that Court for that purpose,, has not been impeached, pabt in. 
 but the wife will have liberty to file a cross bill to impeach the ''gECT.''3. 
 
 deed (1). A Court of Equity will, at the suit of a married woman, 
 
 restrain the husband's assignee of a legacy given to her, from en- 
 forcing the legal remedies given by the will for the recovery of 
 the legacy ; such remedies do not deprive a legacy of its equit- 
 able character, so as to enable the husband to assign it free from 
 his. wife's equity to a settlement (2). 
 
 2. If a guardian, after his ward attaint full age, continues to Guardian and 
 manage property at the request of the ward, and before the accounts 
 of receipts and payments during the minority are settled, it is in 
 effect a continuance of the guardianship as to the property, and 
 the guardian must account on the same principle as though the 
 transactions were during the minority; therefore he will be re- 
 strained from proceeding in an action to recover a balance claimed 
 by him on account of the transactions after his ward had become 
 adult (3). The Court will restrain parties claiming to be pur- 
 chasers and indorsees of a note for value without notice of the 
 circumstances on which the plaintiff relies as freeing her from 
 liability in respect of her indorsement, from suing the plaintiff on 
 the note, if the note has been drawn payable to the order of the 
 plaintiff by a guardian, with whom the plaintiff then still resided, 
 though two years and a half after she had come of age, and the 
 indorsees knew of the guardianship (4). 
 
 Sect. 4. Attorney and Client. 
 
 1. A solicitor will be restrained from enforcing the payment of 
 an annuity at law granted to his wife by his client, under circum- 
 stances shewing that the client was under undue influence on the 
 part of the solicitor (5) ; and where an instrument is obtained 
 
 (1) Kitchen v. Kitchen, 19 L. T. (3) Mellish v. Mellish, 1 S. & S. 138. 
 (N. S.) 674. (4) Maitland v. Backhouse, 16 Sim. 
 
 (2) Buncombe v. Qreenacre, 29 58. 
 
 Beav. 578 ; 2 De G. P. & J. 509 ; 6 (5) Goddard v. Carlisle,' 9 Price, 
 
 Jur. (N. S.) 987 ; 8 W. B. 657. 169. 
 
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410 OFFICERS OF THE COURT, SHERIFF, RECEIVER, AUCTIONEER. 
 
 Part III. either as a gift or purchase, in fraud of the fiduciary situation of 
 Ohaftbb IV -w^ 
 
 Sect. 4. ^^^ donee or purchaser, a Court of Equity will not impose the 
 
 terms of paying the money into Court, if the relationship be that 
 
 of attorney and client (1). 
 
 Sect. 5. Officers of the Cowrt, Sheriff, Beceiver, Auctioneer (under 
 sanction of the Gowrt). 
 
 1. The Court of Chancery exercises a discretion in permitting 
 actions to proceed, but it will never permit its decisions to be 
 questioned in a Court of Law ; therefore if an action of trover is 
 brought against a sheriflf for an ejectment under a writ of assist- 
 ance, issued in pursuance of an order of the Court of Chancery, an 
 injunction will be granted to restrain further proceedings in such 
 action, although the action also seeks damages for a trespass by 
 the sheriff in taking chattels not included in the order (2). Where 
 there is no good reason to suppose that a receiver has acted mah- 
 ciously or mala fide, or that any substantial damage has been sus- 
 tained, the Court will restrain an action of trespass against him (3). 
 If, from the circumstances, it appears impossible to make out a case 
 for damages for an irregularity committed by the messenger of the 
 Court, the Court will restrain a party from proceeding in an 
 action of trespass brought against the messenger (4). The Court 
 will restrain an action by an auctioneer against the solicitor in 
 a lunacy for the amount of his bill for selling property belonging 
 to the lunatic, if the sale is made by him under the authority and 
 sanction of the Court, and a reference will be directed for the 
 purpose of ascertaining what would be a proper sum to be allowed 
 him (5). A claim arising in the course of an employment under 
 a lunacy, and for the purpose of carrying into effect the directions of 
 the Court in the lunacy, unless there is some special agreement to the 
 contrary, would be properly the subject of inquiry before the Court 
 
 (1) Goddard v. Carlisle, 9 Price, (4) Chalie v. Pickering, 1 Keen, 
 169. 749. 
 
 (2) Walher v. Micklethwaif, 1 Dr. (5) In re Weaver, 2 My. & Cr. 441, 
 & Sm. 49. 442. 
 
 (3) Parr v. Bell, 9 Ir. Eq. Rep. 55. 
 
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LUNACY— EXECUTOE, ADMINISTRATOR. 411 
 
 at Chambers (1). Where process has been set aside for irregu- Part III. 
 
 Ohaftcb IV 
 larity, the officer or party desiring the protection of the Court for seot. 5. 
 
 acts performed under such process must apply promptly (2). 
 
 Sect. 6. Lunacy. 
 
 1. The Court of Chancery will take judicial notice, in a suit to 
 obtain payment out of a lunatic's assets after his death, that an 
 action against the lunatic for the recovery of a debt due for neces- 
 saries, would have been restrained by the Lord Chancellor in 
 lunacy, and therefore a lapse of six years during the lunatic's life 
 will not bar a debt of this description (3). 
 
 Sect. 7. Executor, Administrator. 
 
 1. The Court will not permit an executor, after the testator's 
 estate has been fully administered in the Court, without leave, to 
 prosecute an action against a party to the suit for recovery of part 
 of the testator's estate (4). Nor will it do so pending a suit to 
 administer the estate (5). An administrator will be restrained 
 from prosecuting an action to recover a debt, where there is evi- 
 dence that the intestate had created a trust of the fund due by 
 the debtor, which the debtor had accepted (6). If a testator, by 
 will, gives or forgives a debt, it is a testamentary act, and will 
 not be good against creditors ; but against an executor it may be 
 so ; and if an action should be brought for it, the Court will grant 
 an injunction (7). 
 
 2. An executor will be relieved against a verdict after pleading 
 ne imqms executor, > if some slight thing only was at the trial 
 proved to have come to his hands (8) 
 
 (1) In re Weaver, 2 My. & Or. 441, (6) M'Fadden v. Jenkyns, 1 Hare, 
 442. 458 ; 1 Ph. 153. 
 
 (2) Machay v. Bluohett, 9 Paige, (7) Sibthorp v. Moxom, 3 Atk.' 581 ; 
 437 (Amr.). S. C. sub nom. Sibthorp v. Moxton, 1 
 
 (3) Stedman v. Hart, 1 Kay, 607. "Ves. Sen. 49. 
 
 (4) Oldfield V. Cobbett, 5 Beav. 132 ; (8) Cryer v. Ooodhand and an 
 6 Beav. 515. anonymous case, both cited in Bobin- 
 
 (5) Milner v. Goolden, 1 Cox, 196. son v. Bell, 2 Vern. 147. 
 
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41'2 HEIR EXPECTANT, HEIR-AT-LAW. 
 
 Part III. 3. An executor who has obtained probate will not be restrained, 
 ^"'sl^^'T' at the instance of the next of kin, from suing for and collecting the 
 debts due to the deceased, though the will may have been im- 
 pugned in the Court for proving wills, in a suit to recall pro- 
 bate (1). 
 
 4. If an executor gives bills or incurs liabilities in respect of his 
 testator's estate, the Court wUl not, in a suit instituted for the 
 administration of the estate, restrain an action against the executor 
 in respect of such bills or liabilities ; such relief, if to be obtained, 
 must be sought in a distinct suit (2) 
 
 5. If an administrator, who had failed to plead because advised 
 that his plea would not avail, afterwards discover facts which 
 would have made his plea good, he is entitled to relief against 
 judgment on default, as he was obliged, from the nature of his 
 office, to rely upon information (3) 
 
 6. If Equity has taken jurisdiction over the estate of a deceased ^ 
 person for the purpose of settlement, it will restrain an action 
 against the administrator on his bond for an alleged breach of 
 duty (4). If the action was commenced before the decree, the 
 order will be to stay its further prosecution; but if the action 
 ■commenced afterwards, it may be dismissed (5) 
 
 Sect. 8. Heir expectant, Heir-at-Law, 
 
 1. A Court of Equity will not restrain a tradesman from suing 
 on securities for the price of goods sold to an expectant heir, with 
 the knowledge that the purchaser intended to sell them for the 
 purpose of raising money, if the prices for the goods are fair and 
 reasonable, and the transaction known to the party in possession of 
 property, the reversionary interest in which was mortgaged at the 
 same time by the expectant heir, though then under pecuniary 
 pressure, and where the party in possession stood in loco parentis 
 
 (1) Mullen V. Horner, Hay. & J. (3) Hewlett v. Hewlett, 4 Edw. Ch. 
 398. 7 (Amr.). 
 
 (2) I/ucas V. Williams, 4 De G. F. (4) Washington v. Emery, 4 Jones, 
 & J. 436 ; 10 W. E. 578, 606 ; 8 Jur. Eq. 32 (Amr.). 
 
 (JN. S.) 207. (5) lb. 
 
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INDICTMENTS. 413 
 
 to the heir, and the heir has subsequently allowed the consideration Pabt hi. 
 
 given for the securities to be so dealt with that it could never be seot. 8. 
 
 restored to the other party in its original condition, and has not 
 
 been able to shew a continuance of the pressure compelling him 
 
 to act as he did (1). If, pending a suit for the establishment of a 
 
 will of real estate, the heir-at-law, who has concurred in the will 
 
 and in the establishment of the suit, commence actions of ejectment 
 
 and detinue to recover the estate and title-deeds, the Court will 
 
 consider what proceedings ought to be taken to defend the actions, 
 
 and restrain them in the meaiitime (2). 
 
 Sect. 9. Indictments. 
 
 1. If the agents of the receiver in a cause, acting under leave of 
 the Court, have taken forcible possession of a house occupied by 
 a servant of one of the defendants, the Court will restrain that 
 defendant from prosecuting an indictment against the agents (3). 
 
 (1) King v. Hamlet, 3 CI. & F. 218 ; (2) Edgeawmbe v. Carpenter, 1 Beav. 
 
 9 Bli. (N. S.) 575 ; 2 My. & K. 456 ; 171 ; 8 L. J. (N. S.) Ch. 17. 
 Coop. t. Brough. 281 ; 4 Sim. 223. (3) Turner v. Turner, 15 Jur. 218. 
 
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( 414 ) 
 
 Paht III. 
 
 Corporations. 
 
 Quasi corpo- 
 rations. 
 
 CHAPTER V. 
 
 The Doctrines and Peinciples in Eesteaining Peoceedings 
 IN CouETs OF Law and othee Couets, as applicable to 
 
 COEPOEATIONS, QuASI .COEPOEATIONS, AND COMPANIES. 
 
 Sect. 1. Corporations — Qvasi Corporations. 
 
 1. If there is a very important and substantial question for dis- 
 cussion at the hearing, the Court will restrain a judgment creditor 
 of a corporation and sheriff from levying writs of fi.fa. and elegit, 
 and from levying execution against the property real and personal 
 of the corporation (1). 
 
 2. There is no jurisdiction in a Court of Equity to restrain an 
 action against a barrister by the obligees of a bond given by him 
 to the treasurers of his Inn to secure the payment of dues until he 
 ceased to be a member of the Inn ; nor to compel the Society of 
 the Inn to permit him to retire therefrom without giving an under- 
 taking not to practise, or without being subject to the payment of 
 any fine or composition on retiring; the jurisdiction in questions 
 of that kind is in the Inn, subject to an appeal to the Judges of 
 the Superior Courts (2). 
 
 Sect. 2. Companies. 
 
 1. If a company has been amalgamated with, and has handed over 
 its assets to another company, and the united company is insolvent, a 
 shareholder creditor of the first company will not, upon a bill asking 
 no other relief, be restrained from enforcing a judgment against a 
 
 (1) Att.-Oen. v. Wilkinson, 5 Jur. 
 (N. S.) 538 ; 28 L. J. (N. S.) Ch. 392 ; 
 7 W. R. 301 ; 32 L. T. 386 ; 29 L. J. 
 (Ch.)41. 
 
 (2) Neate v. Denman, L. E. 18 Eq. 
 127 ; 43 L. J. (Ch.) 409 ; 22 W. B. 400 ; 
 30 L. T. (N. S.) 290. 
 
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COMPANIES. 415 
 
 party shareholder in the first company and in the amalgamated Part m. 
 company. A Court of Common Law has full jurisdiction to deal sec™! 
 with such a case (1). 
 
 2. The shareholders in a public company cannot, in the absence 
 of collusion and concert, question, as against a creditor in Equity 
 who has obtained judgment by default against the company, the 
 validity of the original debt, or discuss whether the action could 
 have been successfully resisted by the company (2). But if the 
 creditor proceed to enforce his judgment against several share- 
 holders, he is bound to give credit to one shareholder whom he 
 sues, for moneys previously received from the others. But the 
 Court will not disturb the appropriation of part of the moneys the 
 creditor has received in payment of his costs of ineffectual pro- 
 ceedings against other shareholders (3). If the Court infers from 
 the evidence that it is an object of an action against a company to 
 prevent the prosecution of a suit against that company, it will 
 restrain the plaintiffs in the action, until the hearing of the cause, 
 from prosecuting their right under a sci. fa. obtained by them 
 against the plaintiffs in the suit, or any other person on whose 
 behalf the bill was filed (4). Such a course of proceeding on the 
 part of the plaintiffs in the action, if permitted, would interfere 
 with one of the main questions in the original suit, and if it be 
 shewn to have been adopted in collusion with, or for the purposes 
 of, the original defendants in the original suit, tbe Court will inter- 
 fere. It will not allow a person claiming to be a creditor to pro- 
 ceed on behalf of one of the parties litigant in a suit to determine 
 as between them, by hostile proceedings dehors the suit, those 
 rights which are the subject of the original litigation ; and if he 
 he put in motion by either of the litigant parties, he is treated as 
 one of them, his claim as a creditor is disregarded, he is considered 
 as one of the parties to the suit, and is only entitled to such relief 
 as the whole effect of the suit will give him (5). 
 
 3. The Court will not restrain one of the promoters of an 
 
 (1) HarMnge v. Wehster, 1 Dr. & (4) Born v. The Kilkenny and 
 Sm. 101 ; 6 Jur. (N. S.) 88. Oreat Southern and Western Railw. 
 
 (2) Qreen v. Nixon, 23 Beav. 530; Co., 1 K. & J. 399. 
 
 3 Jur. (N. S.) 993. (5) lb. ; Taylor v. Hughes, 2 J. & L. 
 
 (3) lb. 24. 
 
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416 COMPANIES. 
 
 Part III. abortive company from bringing an action for money advanced 
 Sect. 2. ^7 h™ to ^^6 other promoters for the purposes of the proposed 
 company. The promoters of a joint-stock company are not partners, 
 for as such they would all be liable to the expenses of carrying on the 
 joint stock business or object, although each of them had not per- 
 sonally concurred in incurring them ; but this is not the case with 
 promoters of a company if the company fails to be formed, each 
 promoter is only liable for that portion of the expenses which he 
 himself, either actually or "impliedly by Law, must be held to have 
 sanctioned (1). 
 
 4. If debentures of a company have been issued fraudulently as 
 between the directors of such company and the person to whom 
 they were issued ; a third party, to whom such debentures have 
 been assigned for value, and without notice of the circumstances 
 under which they had been issued, is in no better position than 
 the person to whom they were issued, and must, as an assignee of a 
 chose in action — which can only be put in suit in the name of the 
 original holder, and the assignee of which cannot in general stand 
 in any better position than the original holder — take subject to all 
 the equities which affected such person, unless there have been 
 such dealings between the assignee and the company as might 
 render the latter liable to the assignee, though it would not have 
 been liable to the assignor (2). If debentures are clearly not 
 issued so as to bind the society, an assignee thereof, although a 
 bond fide purchaser for value, without notice of any infirmity 
 affecting such debentures, is not entitled to recover for them as 
 against the great body of the shareholders, and will be restrained 
 from suing the company at Law upon them. Persons dealing in 
 the market for the debentures of a joint stock company are bound 
 to use reasonable precautions in seeing to the authenticity of the 
 documents which they are purchasing (3). 
 
 32. 
 
 (1) Eamilton v. Smith, 5 Jnr. (N. S.) a legal chose in action, with notice in 
 
 writing to the debtor, &c., shall be 
 
 (2) Athenmum Life Insurance So- effectual in law (subject to all equities 
 ciety V. Pooley, 3 De G. & J. 294 ; 5 which would have been entitled to 
 Jur. (N. S.) 129 ; 4 Jur. (N. S.) 371. priority over the right of the assignee 
 
 (3) lb. By " The Supreme Court of if that Act had not passed) to transfer 
 Judicature Act, 1873," s. 25 (6), it is the legal right to the chose in action 
 enacted that an absolute assignment of from the date of such notice. 
 
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INDEX. 
 
 ACCOUNT, 
 
 if acquiescence, Court restrains proceedings abroad for, 10; when Court will 
 not restrain proceedings for, in a foreign country, 10 ; general rule, no 
 injunction, no account, unless in case of mines, 76 ; receipts and payments 
 both sides — transactions complicated, no settled accounts, action on bond 
 to secure &c. restrained, 194 ; equitable jurisdiction in matters of, con- 
 current with Courts of Law, 226, 391 ; no precise rule as to cases where 
 exercised, 226 ; Equity reserves a large discretion upon subject, 226 ; 
 when Equity will not restrain action where not mutual accounts, &c., 226 ; 
 when Equity will endeavour to assume jurisdiction, 226 ; no interference 
 if Court of Law can unquestionably do as full justice as Equity, 226 ; 
 unless doubt about that, 227 ; when suit in Equity for, 227, 228, 229 ; 
 when delay no ground for refusing interference, 227 ; no title to interfer- 
 ence, whe're nothing but set-off, or other defence at Law, 228 ; too late 
 after suffering action to be tried and determined at nisi prius, 228 ; what 
 account Equity adjusts, what not, 228 ; cases between landlord and tenant, 
 228 ; general allegation of mutual dealings, &c., between agent and prin- 
 cipal, not entitle agent to an, 228 ; ignorance of orders upon which entitled 
 to commission gives no title to bill for, by agent, 229 ; when principal 
 entitled to, 229 ; bare relation of principal and agent, not entitle principal 
 to, if matter can be tried at Law, 392 ; duty of agent, receiver, trustee, or 
 
 • executor, is to be constantly ready with, result of neglect and delay, 229 ; 
 alter, under decree, no action allowed, 229 ; when Equity interferes, and 
 when not, where proceedings at Law commenced involving questions of, 
 391 ; accounts before arbitrator at Common Law, 391 ; plaintiff at Law 
 moving for a reference, 391 ; signed and settled in favour of defendant in 
 Equity, 391 ; when action in England for moneys, where right to same 
 depends on suit abroad, 392 ; after decree for, action commenced pending 
 suit, restrained, 392 ; when bill lies for account by author against publisher, 
 and when not, 392 ; when action by servant and agent for salary, not 
 restrained, where accounts settled, 392. 
 
 See Copyright ; Foreign Coitrts ; Guardian and Ward ; Partnership ; 
 ■ Patents; Eailway Companies; Set-off; Trade-Marks; Waste. 
 
 2 E 
 
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418 INDEX. 
 
 ACQUIESCENCE, 
 
 disentitles to interference, 36 ; cases where, 37, 38 ; in breach of covenant, 
 when no bar, 97 ; what must be shown at hearing of cause, 86, 38 ; what, 
 on interlocutory application, 36, 38 ; what, on demurrer, 36 ; corporation 
 bound by, 38 ; so company, 38 ; when claim for compensation, no, 38 ; 
 and lapse of time, no bar to Attorney-General in charities, 38 ; if, in fraud, 
 no relief, 44 ; acquiescence in violation of covenant, effect on interlocutory 
 application, 88 ; in partial deviation from building plan, and delay, dis- 
 entitle, 88 ; a company as much bound by, as an individual, 217. 
 See Account ; Awards ; Companies &c. ; Copyright ; Covenant ; Base- 
 ments ; Ejectment ; Husband and Wife &c. ; Lights &c. ; Nuisance ; 
 Railway Companies. ° 
 
 ACTIONS AT LAW, 
 
 where order at Law, by consent, in ignorance of fraudulent misrepresenta- 
 tion set aside, 397; restrained, after decree upon subject matter, 398; 
 where delay in applying to stayj though discovery sought, no injunction, 
 398 ; stayed, brought with reference to irregular proceedings on process 
 issuing from Chancery, 398 ; restrained, though legal title, to quiet title, 
 and restrain multiplicity of suits, 399; Chancery exercises discretion in 
 permitting to proceed, but never permits its decisions to be questioned in 
 Court of Law, 410 ; when Equity aids, 18 ; when it restrains and when 
 not, 52, 405; what necessary to entitle to stay, 52; where Court of 
 Common Law, not restrained, 52 ; good defence at Law, does not neces- 
 sarily prevent proceeding in Equity likewise, 344. 
 See Nuisance ; Railway Companies ; Trespass. 
 
 ACTORS, MANAGERS, 
 
 as to agreements between, 280; as to implied engagements between, 280. 
 
 ACTS OP PARLIAMENT, 
 
 duties imposed by, no defence as to rights of individual, 51. 
 
 ADMINISTRATION, 
 
 where administration in a Court of Chancery of limited jurisdiction is no 
 ground for staying proceedings in Court of general jurisdiction, 18 ; but 
 stayed if advisable, 13 ; upon what depends administration according to 
 English or Scottish notions of Equity, 14. 
 
 ADMINISTRATION DECREE, 
 
 when, with reference to an, the Court restrains proceedings at Law, 24. 
 See Creditor, &c. 
 
 ADMINISTRATOR, ADMINISTRATION, LETTERS OF, 
 
 when Court, where letters of administration of a person domiciled abroad, 
 does not restrain from transmitting English personalty to the foreign 
 country of domicile, 6 ; foreign administrator, when restrained from 
 receiving proceeds of property, 6 ; as to appointing, pendente lite, 254, 
 255 ; relief against letters of, obtained by fraud, 255 ; suggestion adminis- 
 trator has unfairly obtained letters of administration, no defence to claim 
 by, 285 ; Equity will, in a proper case, interfere as against administrator 
 transfeiTing, &c., assets, 285 ; restrained recovering debt, where evidence 
 debt, a trust fund, 411; administrator failing to plead under advice. 
 
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INDEX. 419 
 
 ADMINISTRATOR, ADMINISTRATION, LETTERS OF— continued. 
 
 afterwards discovering facts which would have made plea good, 412 ; as 
 to action against, on his bond, for alleged breach of duty, where Equity 
 has taken jurisdiction over deceased's estate, 412. 
 See BxEOUTORS. 
 
 ADMIRALTY COURTS, 
 
 when Court has jurisdiction to restrain proceedings in, and when it will not 
 interfere, 20, 21. 
 
 ADVERTISEMENTS : See Publication. 
 
 ADVOWSON : See Ecclesiastical Matters, &C. 
 
 AGENT— AGENCY,. 
 
 Court cannot compel agent to fulfil his duties, 357. 
 
 See Account ; Ambassador ; Liens ; Principal and Agent ; Vendor 
 AND Purchaser &c. 
 
 AGREEMENT, 
 
 if substantial, though not clearly entitled to sue for damages, bill enter- 
 tained, 87 ; of personal nature on both sides, 134 ; if penalty for breach 
 means jliquidated damages, no restraint of breach of, 137 ; where long 
 acted upon, 137 ; effect of agreement constituting a partner, 137 ; fraud 
 on public, 137 ; alterations -in subject matter of, 137 ; parol, followed by 
 long enjoyment, 140. 
 
 See Actors &c. ; Authors, Publishers &c. ; Charities ; Companies &c. ; 
 Contract; Covenant; Creditors &e. ; Ejectment; Instruments; 
 Mistake ; Parent and Child &c. ; Partition ; Partnership ; Prin- 
 cipal and Surety; Publication; Railway Companies; Vendor and 
 Purchaser &c. 
 
 ALIMONY, 
 
 when Court interferes in respeet of, and when not, 22, 274. 
 See Husband and Wife, &c. 
 
 ALVEUS, 
 
 soil of, to whom belongs, how entitled to use, 65, 66 ; encroachments on, 
 preventible, 66. 
 
 AMBASSADOR, 
 
 When an English Court has or not jurisdiction to interfere in respect of, 5, 
 288, 289 ; agent of foreign government acting under, 289. 
 
 ANNOYANCE : See Trespass. 
 
 ANNUITIES, 
 
 concurrent jurisdiction with Courts of Common Law in annuity cases, 132 ; 
 when executors of grantor of annuity, not restrained paying his simple 
 contract debts, 132 ; grantor of, concealing prior incumbrances, 132 ; 
 surety redeeming annuity after bankruptcy of grantor, 132; action for 
 arrears of, stayed on bill for injunction and account, 374. 
 
 APPEAL, 
 
 notwithstanding, to Lords, if judgment at law in favour of plaintiff in Equity, 
 
 he is entitled to injunction to restrain act contrary to judgment, 344. 
 See Railway Companies. 
 
 2 E 2 
 
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42G INDEX. 
 
 ABBITBATIONS, 
 
 jurisdiction to restrain arbitrator from making award, what founded on, 257 ; 
 as to clause purporting to oust jurisdiction of Court, 261 ; where statutory 
 obligation to refer, jurisdiction of Courts excluded, 261 ; when Equity 
 restrains proceedings on an, 399. 
 See Accounts ; Awabds ; Companies &c. ; Paetnbeship ; Bail way Com- 
 panies. 
 
 ABT, WORKS OP : See PnBLicATioN. 
 
 ASSOCIATION : See PAETNEEsrap. 
 
 ATTOBNEY: See Solicitoe. 
 
 ATTOBNEY-GENEEAL, 
 
 Court has jurisdiction over, to restrain prosecuting vexatious &c. proceed- 
 ings, 25. 
 
 AUCTIONEEE, 
 
 action by, against solicitor in lunacy for sale of lunatic's property, made 
 
 under authority &c. of Court, restrained, 410. 
 See Ikteepleadek ; Lunacy. 
 
 AUDITA QUEEELI, 
 
 where notwithstanding, resort may be to Equity, 19 ; where proceedings by 
 two joint debtors on an, restrained, 398. 
 
 AUTHOBS, PUBLISHEES, COMPOSEBS, 
 
 right and property of author and composer in unpublished work, stated, 221, 
 279 ; Equity restrains violations of agreements between authors and pub- 
 lishers, 279 ; and will carry them into effect, 279 ; Equity restrains invasion 
 of right, 279 ; where possession of etchings or impressions of work originates 
 in breach of trust, confidence, or contract, 279 ; author of separate article 
 in periodical, 279, 280; publisher restrained issuing newspaper with 
 colourable imitation of name of another &c. 280 ; agreement by publisher 
 not to publish a magazine of a particular description, 280. 
 See Partners ; Pdblication. 
 
 AWAEDS, 
 
 suit for specific performance of, when not, 140 ; may be good in Equity, 
 though authority to make, revoked before award, 257, 259 ; where sub- 
 mission does not contain express agreement enabling parties to make it" 
 a rule of tDourt, and it has not been made a rule, jurisdiction in Equity 
 to set aside not taken away, 257 ; when not and when exercised, 257 ; 
 when in pursuance of terms of agreement to refer &Ci submission (not 
 being in a, cause &c.) has been made a rule of Court of Law, 258 ; where 
 by consent an order has been made in Chancery to refer a suit to arbitra- 
 tion, 258 ; Court leans in favour of awards, yet when it will set aside, 
 258 ; under Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), 
 s. 11, Court has discretion to stay suit, where one of parties, under an 
 arbitration clause, has appointed arbitrators, 258 ; when, in «uch case, it 
 ought not to stay proceedings, 258; to be construed liberally, to give 
 effect to agreement to refer, except in cases of actual fraud &c., 258 ; 
 reference not refused on ground of injunction being prayed, of which 
 object is only to give Plaintiif benefit of ultimate decision, 258, 259 ; action 
 referred at Nisi Prius to referee or arbitrator, 259 ; power to revoke, with- 
 
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INDEX. 421 
 
 AWARDS — continued. 
 
 out leave of Court, submission to arbitration not containing consent clause 
 for making submission rule of Court, 259 ; an agreement to refer, &o. is 
 revocable by either party at any time before award, 259 ; and party re- 
 voking not restrained bringing action in respect of the matter, 259; where 
 Equity will set aside award, 260 ; as to remitting matters referred, enlarg- 
 ing time for making, &o., with reference to Common Law Procedure Act, 
 1854, ss. 8 and 15 . . 260 ; also with reference to Lands Clauses Act, 260 ; 
 as to non-interference with Inclosure Commissioners making, 260, 261 ; 
 Chancery no jurisdiction to set aside under reference in action, 399 ; nor 
 in such case, to remedy mistake of arbitrator in award, 399 ; when Equity 
 will and will not set aside, by Commissioners empowered by Act to make, 
 400 ; or alter, made by arbitrator appointed under Act, 400 ; where part 
 of, is intra vires and severable, 400 ; evidence of arbitrator admitted, in 
 explanation of, 400 ; delay and acquiescence preclude contesting, 400. 
 See Abbitkation ; Husband and Wife &o. 
 
 B. 
 
 BAILIFFS : See Principal and Agent. 
 
 BANKERS .- See Bills of Exchange. 
 
 BANKING COMPANIES, 
 
 where informal mode of transacting business of, has existed since foundation, 
 transfers of shares invalid at Law, supported in Equity, 349 ; where 
 transfers of shares in, made subject to approval of directors, 349, 350; 
 as to authority to issue injunction against a bank, on application of 
 bank commissioners (U.S.), 350 ; where lien and power of sale of shares 
 are given by charity to a bank, for debts due from stockholders to bank, 
 when sale enjoined (U.S.), 350. 
 
 BANK OF ENGLAND, 
 
 having notice of bill filed, refusing to permit a transfer of stock, 350 ; money 
 in public funds subject of suit to which bank defendant, proceedings at 
 Law to compel transfer not restrained, bank mu.st file bill of interpleader, 
 350, 351 ; where money invested by bankrupt in fictitious name, to defeat 
 creditors, 351 ; must not look beyond legal title of trust of will, cannot 
 prevent sale, &c., of stock by executor, 351; where, not directed, to remove 
 distringas from stock belonging to partnership, 351 ; will not be required 
 to transfer money, on bill by representative of deceased partner against 
 survivors, 351 ; acceptance of bills of exchange by London joint stock 
 bank &c. payable at less time than six months, restrained, 351 ; as to 
 evidence of death required by, 351. 
 
 BANKRUPTCY, 
 
 secret bargain by creditor to obtain larger dividend than others, fraud on 
 bankrupt laws, 188 ; same in secret bargain after bankruptcy, &c., 188 ; 
 power of solvent partner upon bankruptcy of co-partner to sell partnership 
 property, stated, 239 ; when, at suit of assignee of bankrupt, trustees 
 restrained from transferring funds, 240 ; when bankrupt cannot be joined 
 with his assignees in, in a bill for specific performance of contract by him 
 before his, nor for discovery, 240 ; when bankrupt can be joined with his- 
 assignces, 240 ; where Court of Chancery has and where it has not jurist 
 
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422 ;; INDEX. 
 
 BANKRVSVTCY—cmtmued. 
 
 diction with reference to the party in whom the property of the bankrupt 
 is vested in bankruptcy, 240 ; the jurisdiction in, has authority to deal only 
 with bankrupt's estate, but no power to determine what is the bankrupt's 
 estate, 240 ; but after determination, the administration falls under juris- 
 diction of, 240 ; when Court of Bankruptcy will not restrain an action, 
 241 ; nor proceedings in Equity, 241 ; Equity has jurisdiction to restrain 
 proceedings to make a bankrupt, 241 ; where it wUl not interfere, 241 ; 
 administration of trusts of creditors' deeds under Bankruptcy Act, 1861, 
 s. 192, course of Chancery stated in such cases, 241; jurisdiction of 
 Chancery therein not excluded by Bankruptcy Act, 1861 .. 241 ; when it 
 will be exercised, 242; where there is doubt whether deed void as a 
 composition deed, but stiU sufBcient to enable persons claiming under it, 
 to come to Equity, &c., jurisdiction not ousted, 242 ; Chancery has juris- 
 diction to appoint receiver, to prevent irreparable mischief from breach of 
 covenant, though Court of Bankruptcy may be able to give same relief, 
 242; assignee of leaseholds, under assignment with view to defeat 
 creditors, 242 ; alienation of property fraudulent, as against creditors in 
 bankruptcy of alienor, 242 ; relief against judgment discharged by pro- 
 ceedings in, 242 ; suit restrained on a claim expunged in, 242 ; bond 
 assigned by procurement, &o., of surety, to secure debt of his own, 385 ; 
 second bond where first to be cancelled, 385 ; to secure purchase-money of 
 land, with covenant, lands would sell for certain price, &c., 385 ; one of 
 two joint and several bond debtors precluded setting off separate debt, 385 ; 
 cases where action restrained on bonds, 385 ; in nature of penalties, 385 ; 
 bondflde purchaser of negotiable bond for value without notice, 386 ; action 
 on bond by creditor, beyond terms of composition deed, 386 ; as to actions 
 on dividends, 394 ; where intention of deed of inspectorship to deal as if 
 in Bankruptcy, 394 ; as to security of creditor electing to prove for whole 
 debt, 394 ; neglect to produce certificate in evidence, 394. 
 See Bank of England ; Bills of Exchange ; Debt ; Liens ; Paktneb- 
 SHip ; Peomissort Notes ; Shipping &o. ; Sueett. 
 
 baerister, counsellor, 
 
 as to conduct of, with reference to client, as regards purchases, gifts, 
 contracts, secrets, action for fees, and retainer, 281, 282 ; where undue 
 influence and want of independent advice, 282. 
 
 See Bonds ; Coepoeations, Quasi, &c, 
 
 BETTING: See Gambling &c. 
 
 BILLS OF EXCHANGE, 
 
 when Court orders to be delivered up, when not, 185, 186 ; when Courts 
 relieve against, 186, 187 ; when not,' 187; firm accepting, bills of lading, 
 security forgeries, 187 ; acceptor of, by drawer as agent, paying bill after- 
 due to iridorsee for value, without- delivery, indorsee Afterwards indorsing, 
 to another without consideration, 188 ; drawer of, innocent holder, accom- 
 modation acceptor, fraud in payee, 188 ; bill discounter, obtaining from 
 young man, &c. I. 0. U.s, &c. for money at high rates of interest, 188 ; to 
 secure to one creditor larger dividend than others, 188, 381 ; holder of, 
 having given valuable consideration for it, with notice of improper accept- 
 ance by partner of plaintiff, 189 ; given to secure procuration money, 189 ; 
 and promissory notes for a marriage brocage ccmsideration, 189 ; fraud on 
 
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INDEX. 423 
 
 piLLS OF EXCHANGE— coroWMMeA 
 
 acceptor, no defence against indorsee for value, 379 ; and fraud here being 
 good defence at Law, no relief in Equity, 379 ; where discovery as to bill, 
 might disclose a defence in Equity, not available at Law, 380 ; purchaser 
 bond fide holder of, for value, where nothing to excite suspicion, &c., 380 ; 
 plaintiff in action on, alleged fraudulently obtained, electing to be non- 
 suited, 380 ; where truth of banker's denial of knowledge of circumstances 
 under which bill accepted, is suspected, v 380 ; actions on, for gambling 
 debts, undue use of superiority in official rank, restrained, 381 ; when 
 acceptor as surety for drawer released, 381 ; as to restraining action on, 
 where merely a right to counter action for damages, 381 ; where name of 
 plaintiff in action at Law inserted as drawer by mistake, 381, 382 ; 
 lending name as maker of, to enable borrower to keep up false credit, 382 ; 
 positions of maker of note for consideration which fails, and assignee of 
 payee, and liability of payee, 382. 
 See Bank of EngiiAjid ; Companies &c. ; Gambling &c. 
 
 BILLS OF SALE ; See Interpleader ; Partnership ; Sales. 
 BOAED OP HEALTH, LOCAL BOARD OP WORKS, DISTRICT BOARD, 
 LOCAL : See Cobpokations, QpASi, Aggreoatb. 
 
 BONDS, 
 
 relief against penalty of, obtained on unconscionable'bargains, &c., 189 ; pro- 
 bably no relief against bond, &c. unless Court considers party more liablft 
 to imposition than generality of mankind, 189; what, will be relieved 
 against, 190, 192 ; when Equity will carry a debt secured by a, beyond 
 the penalty of, 190 ; but no interest beyond penalty of, unless on special 
 ground, 190, 191 ; where penalty of, is inserted merely & secure collateral 
 object^l91; where penalty of, is to secure the not doing an act, 191; 
 plaintiff in execution, refusal tp dfeoharge him without payment of penalty, 
 191 ; when penalties of, relieved against, 191 ; sureties relievable against 
 penalties of, 191 ; hond fide purchaser of, without notice of fraud by 
 assignor, 191 ; given to restrain acts inseparably incident to an estate — as 
 an estate tail — are idle, 191, 192 ; so of a recognisance, 192 ; case where 
 relief though given for that purpose, 192 ; relief of husband on bond for 
 wife's debts, 192 ; name of surety omitted from, 192 ; after verdict, no 
 discovery of matter, if pleaded, or pleaded'and not supported, that would 
 ■ have avoided the bond, 192; in consideration of 'future cohabitation is. 
 void, 192;'to secure'provisibn for a woman and children after cohabitation 
 is good, 193 ; voluntary to a common woman after keeping her, no relief, 
 193; cases determined against securities given to common prostitutes-, 
 what they go upon, 193 ; for money lost at billiards, 193 ; for money won 
 at play, when relief, when no relief, 193, 194 ; given to a counsellor; 194 ; 
 obtained by undue parental influence, 194 ; when action on, to secure 
 moneys, restrained, 194 ; given with intention it should be used as nego- 
 tiable instrument, nothing on it to shfiw intention, assignee of obligee, 
 194 ; given to secure one' creditor deficiency of composition, not communi- 
 cated to others, 266 ; where doubt as to agreement for giving time with 
 surety, as principal or surety, 384; as to restraining actions against 
 sureties, 384, 385. 
 
 See Corporations Aggregate; Principal and Surety; Promissoby 
 '■- ■ v2fQT-BSj- Restraint- OF Trade; Solicitor &g;; Surety. - 
 
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424 INDEX. 
 
 BOTTOMEY BONDS: See Injunctions, Interlocutoet ; Shipping &a ; 
 
 StJEETY. 
 
 BRITISH SUBJECTS ABEOAD, 
 
 what the Court cannot restrain from doing, 6. 
 
 BUSINESS— TEADES, 
 
 circulation, &o., of cards of, when restrained, 233 ; effect of grant to man and 
 
 his heirs to use &c., that certain trade or business shall not be carried on 
 
 upon premises, 233. 
 See Goodwill ; Policies ; Pkopeety. 
 
 C. 
 
 CANAL, 
 
 considerations affecting water in, 70 ; right to take water of, for one purpose, 
 no authority for taking for another, 70 ; pulling down wasteway of, re- 
 strained, 70 ; mere understanding as to use of superfluous water of, no 
 equitable right, aUter if expense incurred with knowledge of defendant, 72 ; 
 public right of user of, with boats propelled by steam power, 72 ; position 
 of landowner sanctioning formation of, and of devisee and purchaser with 
 notice, 348 ; proprietors of, enjoined obstructing towing-path public has 
 right to use, 348. 
 
 CANAL COMPANY, 
 
 as riparian proprietor, may restrain other riparian proprietors, from diver- 
 sion of stream, 71 ; when, may be restrained cutting through land, 71 ; 
 party may be restrained keeping banks of, out of repair, 71 ; restrained 
 maiing a nuisance by pumping foul water into canal, 71 ; raising em- 
 bankment higher than given by parliamentary power, 348 ; can restrain 
 pulling down waste-way &c. of canal, 344. 
 
 CEMETBEY : See Waste. 
 CESTUI QUE TEUST, 
 
 where, restrained getting possession of fund, 46. 
 
 CHANCEL : See Ecclesiastical Matters &c. 
 
 CHANCEEY IN ENGLAND, 
 
 universal jurisdiction of, aids particular jurisdictions in England, 8 ; aids a 
 public body, by restraining act prohibited by that body, 8. 
 
 CHANCEEY IN lEBLAND, 
 
 when, carries English Chancery decree into execution, 8. 
 
 CHAEGE, 
 
 upon moneys to be recovered by judgment debtor, in favour of judgment 
 
 debt, &c., of judgment creditor, 245. 
 See Interpleader. 
 
 CHAEGING OEDEE NISI : See Creditor &o. 
 
 CHARITIES, 
 
 when Chancery entertains jurisdiction in, 252 ; Court of Equity will decide 
 as to the religion of an endowed school, trustees, master, and scholars, 
 252 ; as to removal of trustees of school, 252 ; of masters, 252, 253 ; where 
 appointment of master restrained until new schemCj 252; Equity will 
 
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INDEX. 425 
 
 OEABITIES— continued > 
 
 decide whether election of object of, hon&fids, &c., 253 ; what agreements 
 between master of free-grammar-school and patrons, not binding on 
 masters, 253 ; jurisdiction over ecclesiastical, property when affected by a 
 trust, 253 ; Court decides as to religious doctrines of trust for church or 
 chapel, 254 ; where Court interferes, and where not, as between trustees 
 of chapel and minister, 234. 
 
 See ACQTJIEBCENCB. 
 
 CHAETEE : See Municipal Corpobations. 
 
 CHATTELS, 
 
 where bill lies to restrain sale or detention of, 182 ; specific things necessary 
 for business in possession of person claiming a lien and threatening sale, 
 182; delivery up to artist of picture painted by himself, 182; putting 
 fixed price on article, effect of, 182 ; extent of jurisdiction to protect pos- 
 session and decree delivery up. of specific, 182; delivery up of chattels, 
 where joint interest, 182 ; right to enjoyment of property in specie not 
 confined to articles possessing peculiar or intrinsic value, 183 ; goods &c. 
 in trust for married woman, 183 ; principles upon which Equity restrains 
 sale or removal of fixtures, 183 ; agent intrusted with chattel must not 
 make profit thereby, 199. 
 
 CHILDEBN : See Husband and Wife &c. 
 
 CHOSES IN ACTION, 
 
 assignee of, takes it subject to all equities, 378 ; although the purchase is 
 bond fide for value without notice, 378 ; vendee giving note to vendor for 
 purchase-money, upon bond to make a title, payee unable to make title, 
 assignee of note, 378. 
 
 CHURCH, CHUECHYAED : See Ecclesiastical Matters &c. 
 
 CmCULAES : See Patents. 
 
 CLEEK, AETICLED : See Solicitor &c. 
 
 CLUB, 
 
 as to expelling members of 301. 
 COAL, 
 
 suit for account of, wrongfully worked, course in assessing compensation, 
 75 ; tenant no right to work under customary freeholds or in lands of 
 ordinary copyhold tenure, 77. 
 
 COLLIERY : See Lease. 
 
 COMMON, 
 
 in enfranchised copyhold, subsists in Equity, 78; wheji bill lies, to have 
 rights of, ascertained, when not, 78, 79 ; village green, part of waste, 
 common or customaiy rights in, protected, 79 ; of pasture, appurtenant, 
 over waste of a forest, protected, 79 ; lord insisting enclosure of part within 
 Statute of Merton, 219. 
 
 See Trespass. 
 
 COMPANIES— COMPANIES IN GENEEAL, 
 
 definition of Acts for making canals, &c., rights of proprietors of land, 352 ; 
 
 as to variation not injurious to a proprietor, 352 ; as to matters of internal 
 
 . jnanagement, 352; where matters and acts plainly beyond powers, &c., 
 
 Digitized by Microsoft® 
 
^26 INDEX. 
 
 COMPANIES— COMPANIES IN GENEEAL—com^iMMed!. - i 
 
 352, 354 ; within powers majority of shareholders bind minority, 3§2, 354 ; 
 as to payments not strictly hound to make, 353 ; as to transactions ultra 
 vires or improper, where acquiescence, 353 ; as to acts within scope of 
 objects, 353 ; simple contract creditor cannot restrain dealing with assets, 
 on ground diminishing fund for payment, 353 ; what required to restrain 
 acts ultra vires, 353; where plaintiff a mere puppet, &c., 353, 354; when 
 Court will and will not interfere to prevent limited company commencing 
 business, 354, 355 ; as to payment of interest out of capital, &c., on paid 
 up capital before profits realised, 355 ; as to dealings by parties having 
 majority of shares, in consideration of advantages to themselves, rights ot 
 minority, 355 ; where proceedings under arbitration clause in agretoent 
 by two public, principal agreement being ultra vires, 355 ; as to agree- 
 ment part of which ultra vires, 355 ; as to suit of co-rival, against public, 
 exceeding legislative limits, 356 ; company, &c., restrained from acts 
 • ' occasioning forfeiture of charter, 356 ; no assistance in exorbitant claims 
 against, for omissions in powers, 356 ; as to power of issuing negotiable 
 instruments as bills of exchange, 356 ; as to applications to Parliament 
 &c., by, to obtain remodelling of constitution, &c., 356, 357 ; no specific 
 performance of agreement by, to -employ person as broker, 357 ; duty oi 
 public company taking land under computeory powers, 357, 358 ; what 
 any one seeking assistance of Court against, is bound to shew, 357 ; nature 
 of ownership acquired in land by, under compulsory powers, stated, 357, 
 358 ; rights of purchasers and vendors in such case, 358 ; where subsequeni 
 events have given company title, 358, 359; company having special 
 powers for particular purpose, restrained using them for collateral purpose 
 359 ; difference as to'an existing public body, as corporation of a city 
 359 ; judgment at Law by one shareholder against company withoui 
 assets, enforcing against another shareholder not restrained in Equity 
 359 ; creditor obtaining judgment without, collusion, &c.-, against com 
 pany, enforcing it by scire facias against shareholder, 405; director 
 restrained acting on void forfe'itiire of shares, 359 ; as to directors pnr 
 chasing debt of general creditor suing unwilling shareholder, to enforci 
 contribution, 359, 360; as to creditor, being a shareholder, enforcini 
 payment against individual shareholder, 360 ; as to restraining director 
 parting vnth money, where no admission of trust, 360 ; sale by directors 
 mortgagees, , in violation of Joint Stock Companies Act, 1856, restrained 
 360; provisional directors without authorjty publishing prospectus. statin; 
 plaintiff trustee of company, 360 ; effect of misrepresentation or imprope 
 concealment in prospectus as to shareholders, allottees, and transferees 
 361, 362 ; as to delay in such cases, 361, 362 ; as to rights and duties c 
 shareholders in books and papers of, 362 ; standing' by and permittin 
 expensive works to be executed, as to knowledge and acquiescence, lik 
 private individuals, 362 ; as to declaration of chairman of eledtion < 
 directors, 362 ; as to acts not clearly such as majority incompetent t 
 sanction, 362 ; where company amalgamated with, &c.,' another compan 
 and united company insolvent, shareholder creditor of first, not restraine 
 enforcing judgment aga,inst party shareholder of first,, &c., 414 ; whe 
 shareholders cannot question, as , against creditor obtaining judgment b 
 default against company, validity of original debt, &c., 415 ; duty i 
 creditor, cjiforqing .judgment, against several sharel\olders, 415.; as \ 
 
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INDEX. 427 
 
 COMPANIES— COMPANIES IN GEN'EBAL— continued. 
 
 appropriation of part of money received in payment of costs of ineffectual 
 proceedings against other shareliolders, 415 ; where there is an inference 
 that it is an object of action against, to prevent prosecution of suit against, 
 415; one of promoters of abortive, not restrained bringing action for 
 money advanced to other promoters, 416 ; promoters of joint stock com- 
 pany are not partners, 416 ; as to debentures issued fraudulently as^ 
 between directors and person to whom issued, and third party to whom 
 assigned for value and without notice, 416. 
 See Acquiescence ; Judgments ; Eight of Way. 
 
 COMPENSATION, 
 
 for loss of of&ce in CustoBis, 248. 
 See Pensions. 
 
 COMPOSEES : See Adthoeb &o. ; Publication ; Sharbholdebs. 
 
 COMPULSOEY POWBES OP TAKING LAND : See Land. 
 
 CONCEALMENT: See Ejectment. 
 
 CONDITIONS: See Penalties. 
 
 CONDUCT OF PAETIES, 
 influences the Court, 38. 
 
 CONFIDENCE, ABUSE OP, 
 interference where, 41, 279. 
 See Pbomisboby Notes ; Teubt ; Title ; Authoes &c. 
 
 CONTEMPT OP COUET : See Cbeditoe &c. 
 
 CONTEACT, 
 
 subject matter of, abroad; sustained, when contractors resident here, 7; 
 Court only interferes if one of parties resident, or the property is here, un- 
 less absolute necessity for interference, 7 ; contract abroad to deliver here 
 in specie to person here, the thing is retained here for the person, 8 ,• con- 
 tracts entered into in another country, when, and not, enforced, 15 ; when 
 Equity restrains parties to a contract from bringing actions, wWe Common 
 , Law has concurrent jurisdiction, 15, 16 ; when not, 16 ; unconscionable, 
 relieved against, 41 ; what knowledge and non-communication rescinds, 45 ; 
 or must be active misrepresentation, 45 ; when Court will restrain entering 
 into contracts pending litigation, 54 ; act bound by, to abstain from, when 
 Court interferes, 61, 332 ; containing obligations of a personal character, 
 134, 136 ; acts in violation of, restrained, and although no evidence of 
 actual damage, and even proving they wiU be beneficial, 136 ; to transfer 
 property, effect of, 139 ; where compensation in damages for wrongful act, 
 139; conduct of one inducing another to alter his conduct, makes a 
 binding, 364. 
 
 See AcTOES &c. ; Ageebment ; Authoes &c. ; Covenant ; Crbditoks — 
 Dbbtoes ; Ejectment ; Foefeitubes ; Husband and Wife &c. 
 I. 0. U.s ; Paebnt and Child, &c. ; Paetneeship ; Penalties, &c. 
 Railway Companies ; Resteaint of Teade ; Shipping &c. ; Title 
 Unconscionable Baegains ; Yehdoe and Puechasee, &c. 
 
 CONVENIENCE, INCONVENIENCE, 
 
 balance of, considered, in interfering, 53, 54,^ 368. 
 
 Digitized by Microsoft® 
 
428 INDEX. 
 
 COPYHOLD, 
 
 Equity has concurrent jurisdiction with Courts of Law to relieve against 
 illegal seizure of, by lord, 80 ; so over a judgment in a Copyhold Court, 
 81 ; when lord restrained cutting timber, 81 ; estate of copyholder defined, 
 81 ; timber trees and minerals in, rights in, 81. 
 
 See Coal ; Common ; Waste. 
 
 COPTEIGHT, 
 
 when remedy in Equity for party complaining of piracy, 153 ; right to account 
 follows title to equitable interposition, 153 ; where Court satisfied piratical 
 imitation, no terms of trying title at Law, 153 ; cases of contested copy- 
 right, as to interference before legal title established, 153 ; if doubt in minor 
 degree of copyright, course of Court, 153 ; where too doubtful, 153 ; eflect 
 of acquiescence as to some individuals, with reference to others, 153, 154; 
 matter, subject ofalleged piracy, forming very inconsiderable part of work, 
 154 ; no injunction or account, where firom nature of work no action, 154 ; 
 work, mere copy, with colourable variations, 154 ; where right to injunc- 
 tion against infringement depends on effect of agreement, 154; where 
 Court will not send a case to Law, 154 ; where Court leaves plaintiff to 
 establish his legal right before interference, 155 ; course of the Court with 
 reference to the legal right, 155 ; where Court restrains publication of 
 chapters only, directions given thereon, 155, 156; plaintiff entitled to 
 answer, where by arrangement title not established at Law, 156 ; pirated 
 work not offered for sale, but used to promote sale of the works mentioned 
 therein, 156 ; what fair use of work, what not, 156, 157 ; production of 
 original manuscript, evidence of hona fides, 156 ; falsely denying copying, 
 &c., strong indication of animus furandi, 157 ; two authors treating of 
 same subject, each being merely a compiler, 157 ; reprint of work where 
 copyright expired, with notes, &c., 157 ; extent of appropriation necessary 
 to establish infringement, 157 ; in plays dramatised from novels, quality 
 of piracy more important than proportion borrowed to whole work, 157 ; 
 what in such cases sufficient admission, 157 ; exceedingly small portion of 
 work pirated bearing great proportion to other matter in defendant's 
 work, 157, 158 ; where some only of parts of work, but forming consider- 
 able portions of a publication, have been shewn piratical, 158 ; colourable 
 imitation of title, 158 ; question of minuteness in value of original matter 
 extracted for criticism, 158 ; where it is difficult, &c., to take an account 
 of the loss, 158 ; where matter forms very inconsiderable part of work, 
 and contains mere calculations, and published some years, plaintiff left to 
 legal remedy, 158 ; not only quantity, but quality of matter extracted, tc 
 be considered, 158; fraudulent intention in infringing copyright, not 
 necessary if right of property invaded, 158 ; fuU acknowledgment ol 
 original, &c., no excuse where sale of work injured, 159; inquiries tc 
 ascertain correctness of what is copied, not sufficient, 159 ; Court does noi 
 grudge labour to ascertain how far injunction should extend, 159 ; plaintifi 
 entitled to discovery, 159 ; delay in making application, 159 ; where Courl 
 imputes knowledge of contents of work, 159 ; delay in respect of firs! 
 edition, piracy not being discovered, not acquiescence in second editior 
 within s. 26 of Copyright Act (5 & 6 Vict. c. 45), 159 ; onus of shewing 
 laches,- 159 ; purchase of copyright for a given period, rights under, 160 
 Copyright Acts (8 Ann. c. 19, and 5 & 6 Vict. c. 45) are directed, againsi 
 unlawful printing, 160; where lawful, may sell what printed, but ques- 
 
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INDEX. 429 
 
 COFYmGWa— continued. 
 
 tioh as to the number of copies of which an edition should consist, 160 ; 
 rights of registered owner of unsold copies of piratical edition, 160 ; and what 
 not entitled to, 160 ; principles upon which Equity gives account of profits 
 of work in case of piracy, 160 ; in estimating damages, for what defendant 
 must account, 161 ; if copyright infringed, injunction without proof of 
 actual damage, 161 ; owners of copyright in a journal, interfering with 
 editor, where remuneration of editor depends on success of journal, 161 ; 
 infringement consisting of copying collection of facts easily obtained, 161 ; 
 assignor of, restrained from violating covenant not to publish similar 
 publication, 161 ; and terms purchaser put upon, 161, 162 ; author selling 
 copyright, and covenanting not to publish any other work to prejudice its 
 sale, 162 ; explanation to purchasers by party violating, not sufficient, 162 ; 
 copying into newspaper whole articles from another periodical professedly 
 for reviewing, 162 ; person having only equitable title, 163 ; permission 
 by author to in&inge copyright given after parting with equitable title, 
 163 ; injunction against a work published in successive numbers, on ground 
 of piracy in published numbers, 163 ; penalties and forfeitures must be 
 waived, 163. > 
 
 COPYRIGHT IN DESIGNS, 
 
 what Court orders to be delivered in case within, 163 ; injunction, though 
 no intention to use until after expiration of protection, 163, 164 ; differ- 
 ence between registered design infinitesimal, when injunction, 164 ; where 
 difference in style, 164; as to plaintiff being required by defendant to 
 establish his legal title, 164. , 
 
 CORPORATIONS AGGREGATE, 
 
 restrained taking compulsorily more property than they have formally ad- 
 judged necessary, 296 ; from constructing works beyond powers, dis- 
 posii^ of corporate property for non-corporate purposes, making lease 
 illegally, violating statute applicable to themselves or charters, applying 
 moneys to purposes not authorized, &c, 296, 297 ; Court of Equity will 
 decide upon existence and extent of powers of, 297 ; no interference if not 
 exceeding powers, 297 ; where doubt whether powers given local boards 
 properly exercised, 297 ; restrained attempting to procure performance of 
 acts which they have no power to enforce, 297 ; restrained extending exer- 
 cise of powers beyond area of jurisdiction 297, 298 ; no interference if dis- 
 cretionary powers not exercised capriciously, 298 ; execution of public 
 works ordered by Act to be carried out by, must not interfere with 
 private rights, 298 ; circumstance that vast population may be injured, 
 unless such rights invaded, not taken into consideration, 298 ; in such cases 
 Equity can enforce proper mode of constructing works, 298 ; restrained 
 proceeding on invalid notices, 298 ; proceeding to execute works to injury 
 of property in a case not within their Act, 298 ; although jurisdiction 
 given by their Act to another forum, 298; restrained paying money 
 secured on bonds except to owner, 298 ; principle of jurisprudence as re- 
 spects governing body of, with reference to the use of the funds, stated, 
 298, 299 ; what is meant by the governing body, 299 ; when judgment 
 creditor of, and sheriff restrained levying writs oi/Lfa. and elegit against 
 property of, 414. 
 See Companies, &c. ; Sales, &c. 
 
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430 INDEX. 
 
 COEPORATIONS, QUASI, AGGREGATE, 
 
 when representatives of, restrained making payment under rules, 229 ; as 
 committee and trustees of friendly societies, 299; no interference with 
 public duty of a public, yet mere ministerial act restrained, 299 ; Lords 
 of Treasury doing mere ministerial act, 299 ; Testry restrained misapply- 
 ing rates, demolishing building, where right lost through neglect, &ct 
 299, 300 ; Court will restrain district Board of Works demolishing houses 
 ultra vires, local board of health prosecuting bill by means of misapplied 
 rates, making improvements so as to be unnecessarily injurious, or local 
 Board, in exercise of powers over sewers, committing a nuisance, or 
 guardians of poor committing trespass, 300 ; no interference in favour of, 
 with rights of property, to protect from future contingency, 300 j vestry 
 may borrow on security of particular rate, 300 ; no jurisdiction in Equity 
 over Inns of Court with reference to action on bond against barrister, 
 &c., 414. 
 
 COSTS: See Liens. 
 
 COUNSELLOR, COUNSEL : See Barkister ; Bonds. 
 
 COURT OP BANKRUPTCY: &e Baskruptct. 
 
 COURT OF COMMON LAW, 
 
 giving time to apply to, for liberty to' plead to action on judgment, 23 ; 
 Chancery never permits its decisions to be questioned in a Court of Law, 
 52, 410. 
 See EsrvT Cownoil. 
 
 COURT OP EQUITY, 
 
 relieves, though whole matter not brought into, 42 ; never permits Courts 
 of Law to question its decisions, 52, 410. 
 
 COURTS, 
 
 when two distinct suits in different, in this or foreign country, restrained, 
 11 ; Court of Session, Scotland, no power to alter, &c., order of Chancery, 
 12; when tutor dative restrained continuing proceedings in Court of 
 Session, 13. 
 
 COVENANTS, 
 
 when relief against breach of, when not, 85, 86, 97, 99 ; where covenant 
 not to do and penalty doing act, when Court enjoins, 86, 87 ; though 
 power of re-entry, breach restrained, 87; right to enforce, affecting land, 
 passes to alienee, 87 ; doubtful case stated, where two alienees, 87 ; 
 vendors covenantees, trustees for all claiming under — each purchaser has 
 equity against other, 87 ; unless acquiescence, 87 ; but may have damages, 
 87 ; in cases simply on, party seeking specific performance in possession. 
 87 ; in remainder or reversion, 87 ; difference between, 88 ; relaxation in 
 favour of some tenants, 88 ; injunction depends on comparative facility of 
 indemnifying plaintiff and defendant, 88 ; covenantee without notice of 
 breaches, no specific performance of covenant to renew, 89 ; right to renew 
 depending on performance of condition precedent, 89; where encroach- 
 ments in breach of, immaterial, 89 ; covenant running with land, 89, 90, 
 91, 94 ; assign with jnotice, of covenantor, bound, 89 ; covenant not run- 
 ning with land, 89, 90 ; running or not, purchaser with notice bound, 
 373; clause in conveyance as to land adjoining grantor's and grantee's 
 90 ; covenant not to do an act — recital shewing intended that act might be 
 
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INDEX. 431 
 
 COVENANTS— coJiijwMeo!. 
 
 done orl payment of sum as liqtiidated damages, yet injunction, 91 ; but 
 coveriantj if ambiguous, controlled by recital, 91 ; representation that, by 
 reason of covenants, can only build in particular way, 91 ; conveyance in 
 fee to use certain trades not to be carried on, amounts to, 91; for per- 
 petual renewal by person having limited interest, 91, 92 ; express covenant, 
 implied agreement as to removing articles on farm, 92 ; breach df farm- 
 ing, restrained, 92 ; but if no covenant, should be evidence of being 
 ancient meadow, 92 ; sub-lessee restrained doing act whereby lessor's titld 
 maybe evicted, 93; to repair atid surrender in good condition,' 93 ; not 
 eijforced, where must try in each instance whether act pr^udicial, 93 ; 
 qu<£re whether in such a covenant Equity would interfere between owner 
 of well and proprietors of waterworks, 93 ; first remainderman in tail, 
 when bound to make a new lease, 93; to repair damages by fire excepted, 
 93 ; premises insured, 93 ; to repair in a given time, 93 ; notice to quit, 
 94 ; reasonable time allowed to repair, 94 ; relief where unable to repair in 
 time fl:om circumstances not under control, 94 ; notice to repair supposed 
 to be suspended by negotiations, 94 ; not to let, set, or demise without con- 
 sent, 94; not to assign without licence, 94, .95; such covenants run with 
 land, 94; where clause against assignment without license, equitable 
 charge no forfeiture, 95 ; so assignment by operation of law no breach of 
 such condition, 95 ; except by clear words, 95 ; proviso, consent not to be 
 withheld without reasonable objection, 95 ; for payment of rent, 95 ; to 
 insure, relief under statutes for breaches, 96 ; still relief if such covenant 
 
 ; . .substantially performed, 96; to insure in lessor's name only, 96; breach 
 threatened and partly executed, 97 ; proposed breach, 97 ; covenant not 
 to build, or allow trees to grow above certain height, 97 ; vendor to several 
 purchasers, breaches of, committed by some without interference, 98 ; 
 restrictive, in assignment of lease, 98 ; Qonstructive notice of, 98 ; tenant 
 from year to year without express notice, bound by constructive, 98 ; 
 breach of implied covenant by lessor, 98 ; in respect of personal property 
 by one party to contract, 99 ; contract containing express negative, 99 ; 
 negative obligation inferred, 99 ; when interlocutory injunction to compel 
 
 ; performance of negative clause, 99; Court will restrain party doing any 
 
 act which will disable him from doing what he covenanted or contracted 
 to do, 136 ; although it cannot enforce specific performance of the thing 
 the party agreed to do, 136 ; where express, and uncontroverted mischief 
 from breach. Court restrains breach, 231 ; proceedings at Law by cove- 
 nantee to enforce, for charging sum upon lands, as portion for daughter of 
 covenantor — restrained upon covenantor offering to execute instrument 
 charging same, 247 ; where some of covenants in lease (except to pay rent) 
 , broken, and one broken where no relief — no interference against ejectment 
 for non-payment of rent ; 372 ; when action on breach of, to repair, 
 restrained, 372 ; as to 'action on a covenant against sub-lessees, &c., by sub- 
 lessor, to recover exorbitant premium paid under erroneous belief, 372 ; as 
 to strict contract to insure against fire, whore by breach, lessor may enter, 
 373 ; and where on such contract leases dealt with, so as to lead lessee to 
 suppose forfeiture would not be insisted on, &o., 373 ; grantee with notice 
 of easement restrained from action on covenants in warranty deed, 373 ; 
 repeated actions for breach, jurisdiction to restrain, 373 ; where mortgagee 
 with power J[iiiS contracted to sell portion of security for sum exceeding 
 
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432 tNDEX. 
 
 COVENANTS— comimMfiA 
 
 amount due, yet not restrained enforcing covenant for payment, 373; 
 mortgagor relieved from action on, executed in ignorance, &c., 373. 
 See Acquiescence ; Bankruptcy ; Coptright ; Ejectment ; Executions ; 
 Feaud ; Husband and Wipe ; Leases ; Light &o. ; Moktqages ; 
 Penalties &c; Railway Companies; Restraint op Trade; Soli- 
 citor &c. ; Surety. 
 
 CREDITORS— DEBTORS, 
 
 creditor not restrained prosecuting legal remedy against personal representa- 
 tives, unless decree under which he has right to prove debt, 265, 402 ; no 
 interposition as against creditor's advantage at law, unless debtor dis- 
 charge all demands equitable and legal, 265 ; contract rendering personal 
 skill of assignors in trust deed for benefit of creditors, material portion 
 thereof, 265 ; trust deed in favour of creditors, when a voluntary trust and 
 not enforceable against author of trust, 265 ; principle stated, 265 ; but 
 trustees, where legal character is complete, are trustees for volunteers, 266 ; 
 conveyance to trustees for payment of scheduled creditors not executing 
 or conforming, 266; agreement by one creditor without knowledge of 
 others, in a composition, for payment of his own debts in full, set aside, 
 266 ; upon grounds of public policy, 266 ; debtor under terms to pay by 
 instalments, proviso enabling creditor to sue for whole on failure of 
 punctual payment, assignment of debt, 266 ; effect of agreement by debtor 
 being to hypothecate goods, 267; when question of appropriation and 
 apportionment of payments can be raised by way of defence at Law, 267 ; 
 principle upon which Equity restrains creditor enforcing legal rights 
 against estate of deceased debtor, 402 ; what costs creditor gets upon being 
 restrained, 402, 404; when creditor of testator not restrained issuing 
 execution against executor, 403 ; but Equity will not suffer judgment to in- 
 terfere with its own decree, 403 ; when creditor not restrained taking pro- 
 ceedings under charging order nisi, upon shares of deceased debtor, 403 ; 
 heir pleading false plea to ^ction by bond creditor, course, after adminis- 
 tration decree, 403 ; executor pleading false plea after decree for ad- 
 ministration, 403 ; administration decree pronounced pending action, 404 ; 
 obtained before action by creditor without notice thereof, 404 ; creditor 
 continuing proceedings at Law after notice, 404 ; after decree to account 
 in administration suit, when creditor restrained proceeding in a suit by 
 ■himself, 404 ; as to creditor proceeding in another suit, after a decree in 
 a creditor's suit, 404 ; where delay in suit, creditor allowed to prosecute 
 a suit, 405 ; creditor proceeding against executor at Law after notice of 
 decree to account, a contempt so far as to refuse costs, &c., 405 ; after 
 administration decree, legatee can restrain creditor's suing at Law, 405 ; 
 judgment creditor of vendor, after suing out elegit, proceeding in ejectment 
 against purchaser in possession, and filing bill for specific performance, 
 405 ; when old judgment creditors not coming in under decree restrained 
 proceeding against lands, 406. 
 See Bonds ; Companies &c. ; Receivers ; Surety ; Trust. 
 
 CRIMES, 
 
 as to interference and non-interference with commission of, 290, 291 ; 
 dealing with infants, amounting to crime, 291 ; where Equity will and 
 
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INDEX. 433 
 
 CRIMES — contintied. 
 
 will not restrain criminal proceedings, 291 ; or enjoin or regulate proceed- 
 ings upon an indictment, 291, 292. 
 See Pbopbety. 
 CEIMINAL PKOCEBDINGS, 
 
 when restrained, 19. 
 CRITICISMS : See Publication. 
 CROWN : See Pbbbogativbs of. 
 CURTESY : See Ejectment. 
 CUSTODIAN, 
 
 injunction till, appointed, 59. 
 CUSTOM, 
 
 entitling lord to let down surface in working mines, is bad, 73 ; to subvert 
 the soil and carry away substratum, not good, 77 ; what, may exist as to 
 mines in copyholds, 77 ; qiicere as to timber, 78 ; as to getting clay, digging 
 for vitrious or silver sand, and sand generally, carrying away entire soil, 
 82 ; what evidence sufficient, 82. 
 See Presckiption Act. 
 CUSTOMARY FREEHOLDS : See Coal. 
 CUSTOMS : See Pensions. 
 
 D. 
 
 DAMAGES, 
 
 suit in this country only for, decided in forum of defendant, 7 ; if impossible 
 to estimate, injunction granted, 33 ; though jury give small, yet injunction 
 may be granted, 69, 399. 
 See Agkbembnt ; Contract ; Copyright ; Covenant ; Ieeepaeable 
 Damage ; Laches ; Landlord and Tenant ; Law, establishing Right 
 AT ; Light, &c. ; Nuisance ; Patents ; Restraint op Trade ; Trade 
 Marks ; Trespass ; Waste. 
 DEBENTURES : See Companies. 
 DEBT, 
 
 trader assigning, to whom notice must be given, with reference to the 
 doctrine of order and disposition of trader, 203 ; given or forgiven by 
 testator, is testamentary act, and not good against creditors, 411. 
 DECEIT: See Fraud. 
 DECREE, 
 
 Equity will not suffer judgment at Law to interfere with its, 403. 
 DEEDS, 
 
 executed by both parties with fraudulent intent, semh. no relief to either, 185. 
 See Trust. 
 
 DELAY : See Account ; Laches ; Light, &c. ; Nuisance ; Trade Marks j 
 Waste. 
 
 DEVISE— DEVISEE, 
 
 devise of estate of lunatic obtained by trustee of, for his own benefit, 255 ; 
 execution upon ejectment against heir stayed, 255 ; where proceeding in 
 ejectment for recovery of estates devised, by devisee of heir of testator, 
 restrained, 287. 
 
 2 F 
 
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4:34 INDEX. 
 
 DISCOVERY— DISCOVERY, BILL OF, 
 
 in aid of proceedings in Probate Court, 22 ; to restrain action, full discovery 
 necessary, 51 ; in aid of action, case to make out, 51 ; if entitled to^ entitled 
 to restrain action, 397 ; where defendant fails to prove material feet, of 
 which he afterwards obtains discovery from adverse party, 897. 
 See Actions; Bankrttptct; Bills of Exchange; Coptbight; Eject- 
 ment ; Libel ; Policies ; Tbadb Mabk?, 
 DISSENTING MINISTERS, DISSENTINQ CONGREGATIONS: See Ec- 
 clesiastical Matters, &c. 
 
 DISTRESS, 
 
 where Equity does not interfere, 63. 
 
 See Bent. 
 DIVORCE AND MATRIMONIAL COURT, 
 
 when proceedings in, restrained and when not, 22. 
 DOMlCiL, 
 
 what probate treated as ancillary to the law of country of, 6. 
 DRAMATIC PIECE : See Publication. 
 
 E. 
 
 EASEMENTS, 
 
 of necessity or continuous, when, pass by implication, 69 ; party claiming 
 easement, and proving only part of claim, 214 ; allowing easement to cus- 
 tomer by an understanding, 214 ; customer allowed to erect works to which 
 easement essential, &c., 214 ; as to, upon conveyance of one of two tene- 
 jnents owned by grantor, 214 ; vendor of two adjoining tenements, no 
 liability as to right of way through one of them by tenant of other, 214 ; 
 where purchaser of one of two adjoining tenements cannot enforce right of 
 way against purchaser of other tenement, 214 ; two parties with reciprocal 
 rights to use roadway, 215 ; right to easement must be measured by terms 
 of its grant, 21 5 ; and restricted to reasonable use for purpose of land in 
 condition when user took place, 215 ; difference as to proving right to, by 
 prescription, 215 ; acquired by setting apart land for specified public 
 objects, 217 ; the legal title will be subject to the trusts of the land, 217 ; 
 where laches, 217. 
 
 See Covenants ; Light, &c. ; Railway Companies ; Right op Wat. 
 
 ECCLESIASTICAL MATTERS, 
 
 in, trusts. Court will decide upon doctrines, and will prevent their violation, 
 will remove tmstees concurring in, or committing breaches of trust, in 
 respect of religious communities, and their enjoyment of the property, will 
 restrain election of minister not eligible as to tenets, 302 ; will decide on 
 status and qualifications of minister, or a claim to perform service, 302 ; 
 position of dissenting minister in possession of chapel, &c., by trustees, 
 .303 ; jurisdiction as respects number of trustees to present to living, 
 validity of appointment by trustees of minister, trustees of advowson 
 presenting, bishop inducting, where election of minister exercised by body 
 not having right, 303 ; trusts apart from charter in favour of pastor. 
 Crown being visitor, 303 ; interference where use of place of worship con- 
 trary to its foundation, 303 ; trusts for benefit of Protestant dissenting 
 congregations administered, 303 ; where no interference to remove minis- 
 
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INDEX. 435 
 
 ECCLESIASTICAL MATTEES— continued. 
 
 ter, 304 ; when alterations of walls, &c., of church restJained, 304 ; where 
 institution, indufitioii, collation, taking advantage of lapse, obstruction to 
 induction, testrained, 304 ; as to agreements making judgments in hands 
 of mortgagees of advowsoa, rector being also patron, charges on living, 
 where sequestration by puisne mortgagees, 304, 305 ; where judgnient in 
 virtue of which tithes and profits of vicarage sequestered, 305 ; as to 
 sequestrations by parties having annuities charged on rectories, &c., 305 ; 
 where third incumbrancer has obtained sequestration, 305 ; mortgagee of 
 manor with advowson appendant, proceeding of, in fuare i-npeditf restrained 
 pending foreclosure, 305 ; exclusive use of chancel appendant to a manor 
 or manor-house, actions for trespass to protect, not restrained, 305 ; pulling 
 down churchyard wall restrained, 305, 306 ; where family graves in 
 perpetuity in private burial-ground attached to dissenters' chapel, or land 
 set apart as burial-ground in which burial places, &c., purchased in per- 
 petuity. Court interferes, 306 ; where legal appropriation of ground as 
 dedication of land to public and pious uses within Statute of Elizabeth, 
 interference to restrain dispossession of trustees and removal of tomb- 
 stones, &c., 306. 
 
 ECCLESLA.STICAL PROPBETY : See Chaeities. 
 
 EJECTMENT, 
 
 when restrained and when not, 363 ; Court no power to order plaintiff to 
 give judgment in the, 363 ; what entitles and what does not entitle 
 plaintiff to stay, 363 ; where party in possession by good equitable title, 
 and legal estate in another as constructive trustee for him, 363, 364 ; party 
 in possession of leasehold house being told shall have it for life upon 
 paying, &o., abandoning intention of purchasing business, &c., 364 ; 
 equitable tenant for life in possession vidth lessee committing waste, not 
 pennitting trustee to inspect land, 864; against purchaser of lease in 
 execution put into possession by sheriff, without assignment, 364 ; as to, 
 in cases between tenant and landlord, where option Of purchase, or con- 
 ditions of agreement violated, or lessor could have determined intended 
 lease for breach of covenant, 364, 365 ; where party in possession on bill 
 for specific performance, 365 ; distinction between landlord and tenant on 
 actual and mere covenant for lease, 365 ; where receiver appointed, part 
 of estate copyhold, 365 ; when tenant relieved, who has allowed judgment 
 in, for breach Of covenants for nbn-payment of rent, &c., and terms of 
 relief, 365, 366 ; as to restraining, against lessee for breaches of covenant, 
 366 ; as to lessee in building lease, with respect to persons employed by 
 him, 366 ; where breaches of several covenants in lease, where as to one 
 no relief, 366 ; position of lessee in ejectment by claimant disputing 
 landlord's title, and distress threatened by landlord, 366 ; appointment 
 obtained by husband from wife by undue influence, &c., 366 ; as to sur- 
 viving partner where a joint lease, 366, 367 ; where acquiescence by owner 
 of land in construction of works, 367 ; where fraud, &c., and conduct creating 
 estoppel, 367 ; where equitable estoppel, or implied trust, or standing by, 
 of fiduciary relation, 367 ; or sanction, Sic., and purchasers with notice there- 
 of, 367 ; acquiescence with knowledge, &o., 367 ; conduct, &c., tantamount 
 to waiver of right to curtesy, 367 ; lease not warranted by power ratified, &c., 
 in Equity, 367, 368 ; as to covenant to renew for ever, in lease by ancestor, 
 
 2 F 2 
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436 INDEX, 
 
 EJECTMENT— continued. 
 
 as regards heir, 368 ; course of tenant of lease for lives renewable for ever where 
 ejectment, on expiry of lease vrithout renewal, 368 ; where lessees of mine 
 admit forfeiture for breaches of covenants, but encouraged to lay out moneys 
 by lessor's agent, 368 ; where landlord aware lease is, &o., forfeited, allowing 
 tenant to spend money, &c., 368 ; restrained on balance of convenience and 
 inconvenience, and where also breach of covenant easily repaired, 368; 
 when defendant in, is and is not entitled to discovery, 368, 369 ; where 
 waiver by mortgagee of default by mortgagor, 369 ; when tenant must 
 be made party to bill to restrain, 369 ; where execution upon judgment 
 in, obtained by one of two defendants, not restrained, 369 ; where decree 
 in favour of plaintiffs in suit to establish trusts of will, 369; by heir 
 against devisee with verdict in devisee's favour, upon copy of will and 
 will established in Court according to copy, 369 ; as to trust estates devised 
 to be sold, or to devisee, after two verdicts in favour of will, 369 ; where 
 title purely legal, 369, 370 ; where decree barring right, emrolled, 370. 
 See Creditoe, &c. ; Possession ; Time. 
 
 ELECTION : See Charities. 
 
 EQUITABLE OWNER, 
 
 when, restrained proceeding in action for damages, in name of legal owner, 
 375. 
 
 EQUITABLE PLEAS AT LAW, 
 
 effect of pleading or not pleading, or not being allowed to plead, 26. 
 
 EQUITABLE RIGHTS, 
 
 entitle to aid of Court of Equity, 26. 
 
 EQUITY TO SETTLEMENT : See Husband and Wipe. 
 
 ESTATE TAIL: See Bonds. 
 
 ESTOPPEL : See Ejectment. 
 
 EVICTION AT LAW: See Time. 
 
 EVIDENCE, 
 
 when Equity will restrain introduction of, in suit at Law, 18. 
 See Bank of England. 
 
 EXECUTIONS, 
 
 decree by creditor on behalf, &c., prior creditor having obtained judgment 
 in ejectment, &c., not allowed possession, 84 ; use of legal writ of, for 
 purpose of vexation, &c., 244 ; what generally done where party decrees 
 to restrain proceedings upon judgment, after execution issued, 371 ; benefit 
 of waiver by lessor of breaches of covenant by lessee, not extended to 
 sub-lessee, as to execution of writ of possession, by lessee against sub- 
 lessee, 371; judgment creditor taking out, against estate sold before 
 judgment, 371 ; where principal subject in dispute is locality of lands 
 intermixed, &c., 371 ; as to execution where judgment before administra- 
 tion decree, 388; where judgment by default against executrix, after 
 decree, 388 ; when, against furniture, &c., and personal property, restrained, 
 388 ; as to execution where mortgaged personal property is in possession 
 of liiortgagee, 388 ; where, issued prior to execution of mortgage, 388, 389. 
 
 See Partnership ; Sales, &c. ; Shipping, &c. 
 
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INDEX. 437 
 
 EXECUTORS— A DMINISTRATORS, 
 
 personal representatives of deceased are proper parties to sue to recover 
 assets, 284 ; when persons interested will be allowed to do so, 284 ; when 
 legatee can and cannot sue to recover assets, 284 ; general principle where 
 parties allowed to enforce claims the right of doing which is vested in 
 another, stated, so far as relates to assets of deceased persons, in cases of 
 executors and surviving partners, 284, 285 ; Court not at liberty to 
 question validity of appointment of, by proper Court, 285 ; when, re- 
 strained receiving assets, &c., prosecuting proceedings at Law, converting 
 specific property, 285 ; when pendency of suit to recall probate or letters 
 of administration is and is not sufBcient to restrain personal representative 
 receiving assets and getting in debts, 285, 286, 412 ; Court interferes where 
 representation in contest and no person constituted, 286 ; agreement by 
 executor that validity of testamentary papers by which he was appointed 
 shall be tried, justifies interference, 286 ; as to restraining actions against, 
 after administration decree in creditors' suit, 286, 287 ; if, have misapplied 
 assets, no interference with judgment obtained before decree for account, 
 287 ; duty of, in pleading at Law, 287 ; where executor, after estate 
 administered, not allowed, without leave, to prosecute action, 411 ; not 
 allowed to do so pending administration suit, 411 ; action by, to recover 
 a debt given or forgiven, 411 ; when, relieved after verdict upon pleading 
 ne unques, 411 ; as to restraining actions against, where he has given bills 
 or incurred liabilities in respect of testator's estate, 412. 
 See AccotwT ; Administbatoes ; Bank of England ; Creditor, &c. ; 
 Judgments. 
 
 F. 
 
 FAIRS : See Market. 
 
 FELONS, FELONY, 
 
 that felon cannot be sued upon civil action is a rule of public policy, where 
 policy ceases, rule ceases, 289 ; where felon dies before felony discovered, 
 289. 
 
 FERRY, 
 
 Court will protect right of, 72. 
 
 FIDUCIARY RELATIONSHIP : See Ejectment ; Solicitor, &c. 
 
 FIRE : See Covenant. 
 
 FISHERY, 
 
 protection of, 80. 
 
 FIXTURES : See Chattels; 
 
 FOREIGN COURTS, 
 
 judgments of, when examinable in England, 8 ; Court can restrain proceedings 
 of parties in, 10 ; when it will do so, 10 ; when it will not, 11, 12, 13, 14 ; 
 if decision here is that Chancery proper tribunal. Court here restrains action 
 out of kingdom, 10; when Court aids foreign Court, 11 ; staying proceed- 
 ings by reason of foreign judgment, what to satisfy Court, 57. 
 See AccotrNT ; Administration ; Courts ; Land. 
 
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438 INDEX. 
 
 FOREIGNERS, 
 
 when they have a remedy in aip E^igU^h Court, 3 ; the Court requires a 
 strong case to restrain a foreigner dopiiciled in another country, 6 ; one 
 foreigner may restrain o,ther foreigners abroad from misapplying a fund, 
 &c., 6 ; residence pf, here, rpal^es injunction effecttial, 10,; where, seeks no 
 9,ssistance from here, 10; whep Court restrains proceedings against a 
 foreigner for seizure qC estates of English subjects abroad confiscate, 15 ; 
 Tesideip,t foreigners,, when injunQtipn by Qpe against the other, 15. 
 
 See Administbatob. 
 
 FOREIGN JUDGMENTS : See Pobeign Coubts. 
 
 FOREIGN SOVEREIGN— GOVERNMENT, 
 
 when th^ Epglish Courts hftve oij have not jurisdictioij in respect of, 3, 4, 5, 
 
 288, 289. 
 See SOTKBpiGH, &c. 
 
 FORESHORE, 
 
 trespass on, restrained, 70. 
 
 FOREST: ,See Common. 
 
 FORFEITUBE— FORFEITURES, 
 
 forfeiting estate in expecta,ncy to defeat security, not restrained, 85 ; where 
 
 no relief against, under a contract^ 85 ; lyhere relief given against and 
 
 where not, 94, 95, 372. 
 See CoPTBiGHT ; Penalties, &c. ; Waste. 
 
 FRAUD, 
 
 instrument gained by, relief against, 41 ; relief against presumptive, 41, 189 ; 
 advantages gained by, principal ingredient in, 41, 189 ; interference where 
 legal as well as equitable, 42, 387 ; in cases of, by bill, rule stated, 42 ,• 
 cases of, and deceit, 43, 44 ; all parties to, restrained, 44 ; assignee of judg^ 
 pient, where restrained from execution on land, 44 ; when Common Law 
 and Equity jurisdiction in, course in Equity, 44 ; no interference to protect 
 party against his fraudulent instrument, 44 ; disentitles to enforce cove- 
 nant, 45 ; must be proved to set aside bargains at Law, Equity relieves 
 against presumptive, 41, 189 ; as to action, &c., where question of legal 
 fraud and of equitable, 387, 388. 
 
 See Acquiescence ; Actions ; Bonds ; Ejectment ; MisfBBPBESBNTATioN ; 
 Settlements. 
 
 FRIENDLY SOCIETY, 
 
 See CoEPoEATioNS, Quasi, Aggeegate. 
 
 FUNCTIONARIES, PUBLIC: See Public Body. 
 
 G. 
 
 GALES, 
 
 what,, granting of, restrained, 77. > 
 
 GAME, 
 
 tenant with exclusive right of sporting and killing, 183 ; right of land- 
 lord as to cutting trees, 183, 184. 
 
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INDEX. 439 
 
 GAMBLING, GAMING, WAGERING TRANSACTIONS, 
 
 securities given to prevent threatened prosecution fot cheating at cards 
 to obtain penalties, 256 ; bills of exchange made in France substituted 
 for English bills cttiginally given for gambling debt, 256 ; innocent lona 
 fide assignee for value of security for money won in gaming, restrained 
 enforcing his claim, 256 ; judgment creditor — assignee of debt for money 
 won at cards, taking debt under false representation, &c., of debtor, no 
 relief against judgment, 256 ; speculative transaction upon Stock Exchange 
 stands on same footing as gambling or betting transaction, no interference, 
 256 ; nature of relief against securities, &c., given in respect of gambling 
 transactions, 400 ; sale under fi. fa. on judgment, in consideration of 
 gambling transaction, restrained, 400; where knowledge of gambling 
 transaction out of which bills of exchange said to have originated, 400, 
 401 ; money won at play, &c., in country where games not illegal, 401. 
 Bee Bonds ; Bills of Exchange. 
 
 GARNISHEES : See Intbbplbadbk ; Libms ; Receivers. 
 
 GOODWILL, 
 
 mere sale of, when vendor of, will or will not be restrained setting up again 
 
 in similar trade, 232 ; what vendor of business must not do,, 232, 
 See Paetneks. 
 
 GOVERNMENTS : See Soveeeign, &cr. 
 
 GRANTS, 
 
 grant for purpose of railway, what it carries with it, 246 ; right of grantor 
 over portion retained, as against grantee for years or in fee, 246. 
 
 GUARANTIES : See Legal Instettmekts. 
 
 GUARDIAN AND WARD, 
 
 guardian after ward attains full age, continuing to manage property at 
 request of ward, before accounts, &o., settled, principle on which guardian 
 must account,, 409 ; note drawn by guardian two years, &c., after age 
 of ward, payable to her order, 409. 
 
 GUARDIANS OP POOR : See Coepobations, Quasi, Agqkegate. 
 
 HEIR— HEIR EXPECTANT, 
 
 where tradesman not restrainfed suing on securities for price of goods sold to 
 expectant heir, 412, 413 ; where, pending suit for establishment of will of 
 real estate, heir, who has concurred in will, &c., commences ejectment and 
 detinue, 413. 
 
 See Crbditob, Devise, &c. 
 
 HIGHWAY: fe Land. 
 HOUSE OP LORDS. 
 
 question concluded, no injunction, 19. 
 HUSBAND AND WIFE— WIDOW, 
 
 where upon dissolution of marriage and permanent alimony, interference to 
 protect property for benefit of former wife, 271 ; claimants of husband's 
 interest in wife's property requiring aid of Court of Equity, 271 ; husband 
 restrained obtaining legacy to wife or her share as next of kin, without 
 providing for her support, unless residing apart without consent, &c., 271 
 
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440 INDEX. 
 
 HUSBAND AND WWE— WIDOW— continued. 
 
 position of a creditor of a married woman before hearing of action to make 
 her separate property liable, 272 ; and as to her power of alienating her 
 own separate property before the hearing, 272 ; pioperty of wife protected 
 from husband where he has procured marriage with a minor to be 
 solemnized by license, contrary to provisions of 4 Geo. 4, c. 76 ..272 ; con- 
 veyance by woman after marriage engagement, &c., is fraud on rights of 
 intended husband, 272 ; where husband has made post-nuptial settlement 
 in favour of wife, &c., and decree for divorce obtained by wife, 272 ; ac- 
 quiescence by widow in award, &c., of lands, &o., of which husband seised 
 in right of wife made during husband's life, &c., binds widow, 272 ; personal 
 chattels bequeathed to single woman to separate use, without a trustee, 
 judgment creditor of after-taken husband, interference against, 272 ; so of 
 real estate, 272 ; hiwband's assignee of legacy to wife, restrained enforcing 
 recovery, cannot be assigned free from wife's equity to settlement, 409 ; 
 labour of wife and minor children, with assent of husband, applied to her 
 separate use, creditor of husband restrained interfering with such property, 
 273 ; as to stipulation to live separate or not to bring suit for restitution 
 of conjugal rights, 273 ; when proceeding in Divorce Court for restitution, 
 &c., restrained, 273, 409 ; if contract executed in ignorance of wife's adultery, 
 proceedings for divorce not stayed, 273 ; specific performance of agreement 
 to execute separation deed, enforced, 273 ; as to any question respecting 
 restitution of conjugal rights, no interference with Court having jurisdiction, 
 273.; but Equity deals with covenants as matters of contract, and will 
 restrain Violation of covenant by a party restraining himself proceeding in 
 a matter in respect of which Equity may not have jurisdiction, 273 ; and 
 carry into effect executory contracts of that description, 273, 274 ; covenant 
 not to sue for restitution, &c., is usual covenant, 274 ; no execution of articles 
 «f separation, 274 ; but engagements between husband and third party 
 valid, 274 ; as to voluntary deeds of separation, 274 ; extent Court exercises 
 jurisdiction over alimony, 274; what agreements between husband and 
 wife as to children, &c., are valid, what not, 275 ; one covenant in 
 deed of separation bad does not make whole deed so, 275, 276 ; agree- 
 ment a woman should marry such a man, bad, 276; contract by wife, 
 without knowledge of trust, for his benefit, 276 ; purchase of goods by 
 married woman from husband, through trustees, for separate use, &c., 276 ; 
 party claiming to be widow taking possession, &c., of part of personal 
 estate, when 'Court interferes against, 286. 
 fi'ee Bond; Ejectment; Promissory Notes. 
 
 HYPOTHECATION: /See Creditors, &c. 
 
 I. 
 
 IGNORANCE, 
 
 what, as to a fact, is or not an excuse, 39. 
 
 See Actions; Mistake ; Promissory Notes. 
 INCLOSUEE COMMISSIONERS : See Awards. 
 INCOMES ; See Pbkbions. 
 INDICTMEN'i', 
 
 where prosecuting, against agents of receiver, having taken forcible possession 
 of house, &c., restrained, 413. 
 
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INDEX. 441 
 
 INFANTS : See Crimes ; Parent and Child, &c. ; Eestraint of Trade. 
 
 INJUNCTION, 
 
 definition of, 1 ; when and when not entitled to, 58, 59, 61 ; what warrants, 
 
 what not, 59 ; what necessary to ohtain, 59 ; indefeasible right to decree, 
 
 not necessary, 60 ; negative instance of, 71. 
 See Awards. 
 
 INJUNCTION, EX PARTE, 
 duty of party obtaining, 60. 
 See Patents. 
 
 INJUNCTION, DISSOLVING, 
 
 when entitled to dissolve, 60 ; defendant, in violation of terms upon ob- 
 taining dissolution, intermixing his own property with plaintiff's, 269. 
 See Appeal. 
 
 INJUNCTIONS, INTEELOCUTORY, 
 
 when interference by, when not, 54, 55, 56, 57, 99 ; when Court restrains 
 proceedings in Admiralty Court on bottomry bonds, 203 ; not imperative 
 on Court of Equity to enforce by, a statutory prohibition, 341. 
 
 See Acquiescence ; Legal Rights, &o. ; Letters ; Nuisance ; Partner- 
 ship ; Surety ; Patents ; Trade Marks. 
 
 INJUNCTIONS, MANDATORY, 
 
 what Court considers on application for, what entitles to, when Court has 
 power to interfere by, 57, 58 ; instance of, 75 ; as against a railway com- 
 pany in enforcing specific performance, 320. 
 
 See Lights, &c. ; Nuisance ; Railway Companies ; Trespass. 
 
 INJUNCTIONS TO RESTRAIN PROCEEDINGS IN COURTS OF COM- 
 MON LAW : See Actions. 
 
 IN PARI DELICTO: ««e Parties in. 
 
 INSANITY : See Partnership. 
 
 INSTRUMENTS, 
 
 when Court has jurisdiction to order delivery of, 61 ; lost, when trial of issue 
 directed, 185 ; proceeding at Law of party claiming against a lost, course 
 of Court on, 185. 
 
 INSURANCE AGAINST FIRE : See Landlord and Tenant. 
 
 INSURANCE COMPANIES, 
 
 where Court will not restrain payments by, and other joint stock companies, 
 not bound to be made, &o., 349. 
 
 INTERDICT, 
 
 obtained in one suit, set aside in another, if judgment or interdict is res inter 
 
 alios actcB, 399. 
 See Patents. 
 
 INTERPLEADER, 
 
 as to sheriff filing bill of, 261 ; of what, sheriff to satisfy Court, 261; as to 
 duty of claimant under bill of sale, to execution creditor, 261 ; where 
 conflicting claims to a charge on lands, 262 ; when tenant can and cannot 
 
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442 INDEX. 
 
 INTERPLEADER— cowimwed 
 
 file bill of, 262, 396 ; where suit in Equity may be restrained in another 
 and interpleader suit, 263 ; when stakeholder may file such bill, 263 ; 
 auctioneer may file bill of, 263 ; to support interpleader suit, must be 
 conflicting claims, 395 ; where claim of principal defendant legal, of 
 the other derived from him, and equitable only, &c., 395 ; the Inter- 
 pleader Act, 1 & 2 Will. 4, c. 58, and 1 & 2 Vict. c. 45, apply only to 
 opposite claims depending on legal rights, 395 ; suit in Equity by one de- 
 fendant, action at Law by another, restrained on bill of, 395 ; bill of, by 
 tenant against claimants under different wills, 395 ; whereone of defendants 
 to bill of, insists an act of plaintiff has deprived plaintiff of right to treat 
 case as one of, as against him, 395 ; where plaintiff has in ignorance ac- 
 knowledged title, &o., of one of claimants, 395, 396 ; stakeholder who has 
 entered into new contract with one of claimants, obtained by misrepre- 
 sentation, 396 ; two parties claiming adversely under settlement containing 
 power of leasing, bringing actions against tenant, 396 ; when garnishees can 
 file bill of, 396 ; laches is bar to bill of, 396 ; as to bill of, when substantially 
 a bill for a new trial, &c., 306 ; Courts of Equity and Common Law have 
 concurrent jurisdiction in, 396 ; when Equity first resorted to, 396 ; when 
 doubtful whether case proper for, but suit adopted, 397 ; where one of 
 defendants has no title and title of another claiming under hira is subordinate 
 to that of third defendant, 397; sheriff seizing goods miA.eifi.fa. issuing 
 out of Chancery, where claimed by third party, 397. 
 
 See Bank of England, Rent ; Stakbholdeb. 
 IRREPARABLE INJURY, DAMAGE, 
 
 injunction granted, 34 ; irreparable damage^ what deemed, 218. 
 
 Bee Trespass. 
 L 0. U.S, 
 
 as to, obtained in part payment of consideration of contract, into which owner 
 of 1. 0. U. induced to enter by fraudulent misrepresentation, and as to the 
 contract, 383. 
 
 See Bills of Exchange. 
 
 JOINT STOCK COMPANIES: See Insueancb Companies. 
 
 JUDGMENT CREDITOR : See Ceeditoe, &o. ; Receivers. 
 
 JUDGMENTS, 
 
 effect of 27 & 28 Vict. c. 112, s. 1, as to a judgment creditor unable to have 
 land delivered, 84 ; right of judgment creditor under elegit as to possession 
 of land of public companies, 84 ; terms of enjoining, 84 ; judgment cre- 
 ditors under an execution, interest of, in property seized, 131 ; though 
 judgment not yet enforceable. Court will restrain payment of income to 
 debtor tenant for life, 131 ; judgment creditor having sued out elegit 
 without effect, property charged protected from destruction, 131 ; judg- 
 ment satisfied, setting off judgment against, 131 ; no relief against, at Law, 
 where ground equally available at Law, 131, J 32 ; confessing judgment to 
 withdraw property from creditors, 132; equitable mortgagee of land 
 where priority of, to creditor of mortgagor, 132 ; no charge on equitable 
 debt, by judgment creditor, 244 ; judgment creditor of c. q. trust, no exe- 
 
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INDEX. 443 
 
 STJDdUEI^STS— continued. 
 
 cution against goods in trustee's hands, 244 ; valid, at Law, iniquitously 
 used, 244 ; Equity does not suffer, to interfere with its own decree, 287 ; 
 obtained by surprise, 365 ; general rule as to relieving against, 386, 387 ; 
 inequitable use of good, restrained, 387 ; what disentitles to relief, 387 ; 
 neglect in pleading at Law, accounted for, 887 ; release of claims under, 
 after, 387 ; against executor confessing assets, <fcc., 387. 
 See BANKEnpTOY ; Charge ; Companies, (Sto. ; Crbditob, &o. ; Deckbb ; 
 
 EOCLESIASTICAL MaTTEKS, &0. ; EXECUTIONS ; FOREIGN COURTS ; PrAUD ; 
 
 Gambling, &c. ; Interdicts ; Partnership ; Principal and Surety ; 
 Receivers ; Sales, &c. 
 
 JURISDICTION, 
 
 when Court of Equity will interfere as against Courts of Common Law — 
 when not, 17, 18 ; questions decided in Court of original, should be con- 
 sidered as well decided by Court of concurrent, 241 ; extent of, in Equity 
 as to the trial of a question at Law, 365. 
 
 LACHES, 
 
 if, in assertion of legal right, and damage slight, no injunction, 34 ; where 
 
 injunction, though, 34 ; where no injunction, if, 34, 35, 36. 
 See Actions ; Awards ; Copyright ; Companies, &c. ; Easements ; Intee- 
 pleadee ; Light, &c. ; Bail way Companies ; Trade Mabks ; Yendob 
 AND Purchaser, &c. 
 
 LAND, 
 
 not within jurisdiction, when bill respecting, 7, 12; 14 ; in a colony, when 
 the Courts of this country apply general law of this country,. 17 ; right to 
 support of, stated, 216, 217 ; mining operations in adjoining, 216 ;, convey- 
 ance of, for building, right of working minerals reserved, to what support 
 purchaser entitled, 216 ; same right exists though conveyance compulsory 
 under Railway Act, 216 ; person selling,, to another for express purpose, not 
 allowed to derogate &om grant, same of land sold taken under compulsory 
 powers, 216, 217 ; purchaser of, with constructive notice adjoining land to 
 be laid out in building, making right of way necessary, 217 ; threatened 
 appropriation of — for higjtiway — ^by party in possession, where suitable 
 compensation not secured, &c., 217 ; stranger building on land, supposing 
 it his Qwn,, owner perceiving mistake, 270 ; stranger building on land, 
 knowing It another's,, 270. 
 
 See Interpleader ; Landlord and Tenant. 
 
 LANDLORD AND TENANT, 
 
 tenant restrained pulling down house and building another, 269, 270 ; tenant 
 no equity to compel landlord to spend insurance money on insurance 
 against fire by himself, on demised premises, or to restrain suing for rent 
 until premises rebuilt, 270 ; damages, &c., recovered by tenant for irregu- 
 larity in disbressi set off against arrear of rent, 270 ; tenant building on 
 landlord's land, in absence of special circumstances, 270, 271 ; mere tenant 
 at will building believing thereby acquired title to claim lease, landlord 
 al'lowing it and knowing tenant acting in that belief, &c., 271 ; taking 
 
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444 INDEX. 
 
 LANDLORD AND TBNA'HiT— continued. 
 
 possession of land under verbal agreement with landlord, or under expecta- 
 tions created, &c., by landlord of a certain interest and laying out money 
 upon land with knowledge of landlord, 271. 
 /See Account ; Intbeplbadbe ; Set-off; Subett. 
 
 LAW, ESTABLISHING EIGHT AT, 
 
 when Equity bound by decision at, and when not, and to what extent 
 bound, 19 ; not bound on point of damages, 19. 
 
 LEASE, 
 
 lessor restrained derogating from grant, 82 ; landlord restrained breaking 
 covenant working forfeiture of tenant's estate, 82; lessee restricted to 
 specific performance of covenants, 82 ; if danger of forfeiture originate in 
 defendant, still specific performance, 83 ; agreement to renew, solvency or 
 insolvency of tenant, 83 ; lessor of disclaimed, when not compelled to 
 grant underlease, 83 ; tenant in possession under parol agreement for lease, 
 having contracted to sublet, 83 ; where lessee of colliery at so much per 
 wey, colliery becoming not worth working, when and what relief granted, 
 371, 372; difference where fixed sum a year to be paid as rent whether 
 mine worked or not, 372. 
 See CoBPOEATiONS Aggkbgatb ; Covenant ; Ejectment ; Executions ; 
 Liens ; Mines ; Mistake ; Municipal Corporations ; Railway Com- 
 panies ; Vendor and Pukchaseb, &c. ; Waste. 
 
 LECTURES : See Publication. 
 
 LEGAL INSTRUMENTS, 
 
 illegality appearing on, 32 ; result of examination of authorities as to deli- 
 very up of, 32, 386. 
 
 LEGAL OWNER : See Equitable Owner. 
 
 LEGAL RIGHTS— LEGAL TITLE, 
 
 if doubt as to exclusive, no interference without trying, 27, 32 ; or if the 
 right or the violation denied, 32 ; but mere doubt does not prevent inter- 
 ference, 28, 29 ; Court is guided by discretion, 28 ; if legal title reasonably 
 clear, Court interferes, 28 ; probability of, sufficient, 29 ; no declaration of 
 legal rights, as to possible future acts, 28 ; what is required upon bills to 
 restrain exercise of legal right, 28 ; what to be considered, 28 ; interference 
 of Court by interlocutory injunction is to protect the property till legal 
 right ascertained, 29 ; when Court ought not to interfere upon interlocutory 
 application to enforce a, 29 ; whep it interferes, 29 ; where no interference 
 where right depends on construction of doubtful statute, 30 ; unconscien- 
 tious exercise of, restrained, 30 ; Court must see no injury arises from inter- 
 ference, 30; representations of intention to abandon, 30; mode of exercise 
 of, restrained, 30 ; defendant must take right mode of exercising his, 31 ; 
 where rights of plaintiff and defendant legal, what plaintiff must shew, 31 ; 
 what plaintiff and defendant should do, when Court interferes in aid of, 
 31 ; if matter in dispute ready for decision, the right should be declared 
 and injunction thereon, 31 ; there must be substantial damage, 32 ; long 
 uninterrupted enjoyment prima facie evidence of title, 32 ; conduct of 
 party will disentitle to interference, 32 ; plaintiff's legal rights bound to be, 
 and are, put under control of Court, 33, 52, 376 ; if previous adjudication 
 in Equity not on legal title, no interference, 33 ; Court protects exclusive, 
 
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INDEX. 445 
 
 LEGAL EIGHTS— LEGAL TITLE— cmtinued. 
 
 72 ; as to, in cases where Court exercises original jurisdiction to prevent a 
 ■wrong, &c., 138 ; resting on, 220. 
 See Copyright ; Coptkight in Designs ; Laches ; Light, &c. ; Patents ; 
 Bail WAT Companies ; Trade Marks ; Trespass. 
 
 LEGATEE : See Creditor, &c. 
 
 LEGISLATURE, 
 
 when applications to, restrained and when not, 23. 
 
 LESSOR— LESSEE : See Lease. 
 
 LETTERS, 
 
 author of, possesses exclusive right of publishing, 181 ; when receiver, &c., 
 can justify publication without consent of writer, 181 ; sending of, bearing 
 character of literary composition, transmittee no right to publish for his 
 own benefit, 181 ; receiver of, is owner, 181 ; as to joint property in, be- 
 tween receiver and writer, quaere, 181 ; rights of receiver and writer in, 
 181, 182 ; writer trusts receiver with, 181 ; writer may restrain receiver 
 shewing, 181, 182 ; question is, what was purpose of sender, 182 ; sup- 
 posed intention of writer is that receiver may use for any lawful purpose, 
 182 ; publication not a lawful purpose, 182 ; foundation of jurisdiction to 
 restrain production of, 223 ; when publication restrained, when not, 223 ; 
 destruction of, by persons receiving them, 223 ; when publication of copies 
 of, restrained, 223 ; publication of, on application of executor, restrained, 
 223 ; executor of person to whom sent, restrained, 223 ; publication re- 
 strained on interlocutory application, 224 ; publishing magazine as con- 
 tinuation of another, restrained, so also letters, &c., received while 
 defendant publishing for plaintiff, 224. 
 
 LIBEL, 
 
 as to extent of jurisdiction of Equity with reference to publication of, 289, 
 290, 291 ; defendant in action for damages, entitled to discovery to prove 
 truth of plea in justification, 291 ; complainant of, in newspaper entitled 
 to discovery of name of proprietor for purposes of bringing action for 
 damages, 290, 291. 
 
 LIENS, 
 
 on proceeds of cargo enforced, 244 ; when consignee of cargo and others lien 
 on such proceeds, 244 ; enforced for moneys to complete ship, and sale, &c., 
 thereof restrained so as to prejudice, 244 ; on brewers' lease, 245 ; extent 
 of, by agent carrying on principal's business in his own name, 245 ; as- 
 signees in bankruptcy of principal restrained taking possession of business, 
 &c., 245 ; of solicitor for costs as against garnishees, on fund, 245 ;,of agent 
 of country solicitor on papers in his hands for costs, 245. 
 
 LIGHT— LIGHT AND AIR, 
 
 foundation of jurisdiction of Equity to interfere by injunction in cases of 
 ancient lights, 205, 206 ; where abridgment of light does not materially 
 interfere with comfort, &o., for the present, 205 ; future possible destina- 
 tion of property, 205 ; not in every case in which action for obstruction of 
 ancient lights, injunction granted, 205 ; standard of amount of damages 
 calling for interference not defined with certainty, 205 ; obstruction re- 
 quired for interference, 205 ; must be substantial damage, material 
 diminution of light substantially to affect comfort, 205 ; entitled to pre- 
 
 Digitized by Microsoft® 
 
446 INDEX. 
 
 LIGHT— LIGHT AND Am— conUnued. 
 
 serration of ancient lights, though not at the time requiring fnll amount 
 claimed, 206 ; not necessary, party filing bill should be in actual occupa- 
 tion, 206 ; Court interferes to prevent injury to legal right, simply on ground 
 of damage that may be produced to property, 206 ; where Court restrains ap- 
 prehended injury, 206 ; slight obstruction of lessee's ancient lights by re- 
 versioner, which would injure lessee in business, restrained, 206 ; no dif- 
 ference whether right acquired by twenty years' user or by disposition of 
 owner of dominant and servient tenement, 206 ; difference between grant 
 with a covenant for quiet enjoyment and where right to light not ordi-* 
 nary easement, but coming into existence by express covenant, 206 ; 
 if no case for immediate injunction, course of Court, 206, 207 ; no per- 
 petual injunction in case of disputed title until question settled at Law, 
 207 ; no injunction where right doubtful and injury trivial, &o., 207 ; 
 interference not in every case affecting value of premises that will support 
 action, what the effect must be, 207 ; what plaintiff must shew to restrain 
 erection of new buildings, 207 ; in such case though no injunction, may 
 direct inquiry as to damages, 207; mere injury or inconvenience not 
 enough, must be agreement, or stopping up of ancient lights, 207 ; building 
 must be so near as to create a nuisance, 207 ; reduction of value of house 
 by rendering prospect less pleasant, not enough, 207, 208, 210 ; must be 
 material annoyance in ordinary occupations of life, 208 ; not every im- 
 pediment to access of light or of air warrants interference, 208 ; to what 
 owner of ancient light is entitled, 208 ; injunction as to ancient lights of 
 business premises, 208 ; quantum of injury necessary with reference to 
 relief generally, and mandatory injunction, not estimated with reference 
 to particular use of premises, 208; personal comfort, &c., a fortiori trade 
 or business prejudicially affected, Court interferes, 208, 209 ; where ob- 
 struction partly completed and no mandatory injunction asked, 208, 209 ; 
 when obstruction completed and suit for mandatory injunction, no damages 
 in Chancery if injunction refused, 209 ; though capable of compensation 
 ^y jiiry. Court not prevented acting on ground of irreparable mischief, 
 209 ; in such case no essential difference in amount of light and air may 
 be claimed in town or country, 209 ; proportion of sky area abstracted to 
 previous amount, 209 ; what defendant must shew to establish sufficient 
 defence, 209 ; shutting out house from view of passers by, 209, 210 ; as 
 to interference where mandatory injunction asked, 210, 211 ; no inter- 
 ference where title to the property not accepted, 211 ; tenant under agree- 
 ment for lease cannot restrain lessor, unless he ask specific performance, 
 211 ; where Equity will not interfere between owner of dominant and 
 owner of servient tenement on ground of acquiescence, 211 ; what in 
 absence of acquiescence owner of dominant tenement may do 211 212- 
 plaintiff himself obscuring light and air in insignificant degree, 212 ; 
 delay, effect of, 212 ; offer putting plaintiff in as favourable position as 
 before obstruction, effect of, 212 ; Prescription Act (2 & 3 Will. 4, c. 71), 
 ss. 3, 4, from whence twenty years' enjoyment under to be reckoned, 212; 
 what deemed interruption within the Act, 212 ; where obstniction more 
 than twelve months, but twelve months not elapsed from time of promise 
 to remove, 213 ; lessee of expired lease, with agreement for renewal 213 • 
 purchaser with notice of adjoining windows, 213 ; evidence as to lateral or 
 oblique obstruction, 213; angular elevation of buildings not greater than 
 
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INDEX. 447 
 
 LIGHT— LIGHT AND AIR— continued. 
 
 forty-five degrees, no general proposition as to, 213 ; but forty-five degrees 
 of sky left open, is some ^nma /aoj'e evidence of not being obstruction 
 calling for interference, 213, 
 
 LLOYD'S BONDS: -See Bailwat Companibs. 
 
 LOCAL BOARDS : See Coepoeations Aggeegatb. 
 
 LORD MAYOR'S COURT, 
 
 proceedings restrained in, where title equitable, 20. 
 
 LUNACY, 
 
 claim arising in course of employment under Lunacy and for carrying into 
 effect directions of Court in Lunacy, 410 ; action for debt for necessaries, 
 not barred by lapse of six years during lunatic's life, 411. 
 
 See AUCTIONEBB. 
 
 LYING BY : See Municipal Cokpoeation ; Nuisance ; Tkespass. 
 
 M. 
 
 MAGAZINE : See Authoes, &c. ; Lettees. 
 
 MANAGERS : See Actoes. 
 
 MANDAMUS, 
 
 where, proper remedy, ilo injunction, 62. 
 
 MANUSCRIPTS: /See Pubucation. 
 MARKET, 
 
 old, what necessary to shew to protect, 79, 80 ; same of Ihirs, 80. 
 
 MARRIAGE : See Bills of Exchange ; Husband and Wife ; Waeds, &c. 
 MATRIMONIAL COURT : See Divokcb and, 
 MESSENGERS : See Officbes of the Couet. 
 MINERALS : See Copyhold ; Mines. 
 
 MINES, 
 
 On demise of minerals, &c., inference as to support, where surface retained, 
 72, 73 ; so on demise of surface, right to support is incident, 73 ; right to 
 remove vertical and lateral support may be reserved on excepting, 73 ; 
 the reservation of minerals with right to work is a right of property, not 
 a mere servitude or easement, 73 ; on conveyance of land for building, with 
 right of workinig minerals reserved, purchaser entitled to support for 
 surface and buildings, 74 ; and so where conveyance is to company com- 
 pulsorily, 74; but purchaser cannot rely on permanence of accidental 
 circumstances, 74 ; railway taking a conveyance cannot prevent working, 
 &c., without compensation, 74 ; perforating barriers, 74, 75 ; proprietor 
 of mine in lower stratum, rights of, as to water in upper strata, 75 ; injunc- 
 tion upon a mere threat to open, 76 ; Court averse to stopping, 76 ; lessee 
 for life committing waste (from privity) by opening mine in his own 
 close, and digging a mine in adjoining close of lessor, injunction as to 
 both closes, 219. 
 See Account ; Copyhold ; Custom ; Ejectment ; Land ; Lease ; Rail- 
 way Companies ; Waste ; Wateecouese. 
 
 Digitized by Microsoft® 
 
448 INDEX. 
 
 MINOR : See Hdsband and Wife ; Infants ; Eestbaint of Tbadb. 
 
 MISEEPEESENTATION, 
 
 fraudulent, conveying property by, interference with, restrained, 42 ; wilful, 
 inducing parting with rights, is a fraud, 43 ; one, set against another, 45, 
 See Actions ; Conteact ; I. 0. U.S. 
 
 MISTAKE, 
 
 relief both in cases of mistake of law and of fact, 39 ; as to title between 
 party and his tenants, when actual owner not interfered with, 39, 40 ; 
 payment into Court of Law, in ignorance of legal consequences, no 
 interference, 40 ; making shorter lease than intended, no advantage by 
 reversioner, 40 ; in an agreement, what entitles to interference, 41 ; stranger 
 building on land supposing it his own, owner perceiving, 270. 
 See Bills of Exchange ; Vendoe and Pohohaseb, &o. 
 
 MONET, 
 
 paid into Court upon injunction, is a security, 61. 
 
 MORAL, 
 
 no interference on points of, except mixed up with administration of civil 
 rights in property, 225. 
 
 MORTGAGES, 
 
 as to exercising power of sale, 127, 128 ; contesting amount admitted by 
 other incumbrancers, 127 ; puisne incumbrancer offering to pay off first 
 mortgagee, 127 ; mortgagee of testator threatening sale unless executor 
 redeem mortgage by devisee, 128 ; principles restraining those having 
 fiduciary character not apply to mortgagor and mortgagee, 128 ; restraining 
 selling under power where trustee for sale, 128 ; conveyance apparently 
 absolute, probably intended as mortgage only, injunction against sale on 
 interlocutory motion, 128 ; so where mortgagee does not deny committing 
 breach of trust, 128 ; one of several equitable incumbrancers getting in 
 legal right, 128 ; when mortgagee may and may not proceed on his mort- 
 gage and a collateral security, 128, 129 ; position of assignee of mortgagee, 
 129, 375 ; right of mortgagor upon payment and duty of mortgagee, 129, 
 375 ; where mortgagee severs the debt from the security, 129 ; when 
 mortgagor entitled to restrain action for mortgage money, 129 ; action by 
 mortgagee after foreclosure and sale, 129 ; when mortgagor in possession 
 restrained felling timber, &c., 130 ; definition of sufficient security, 130 ; 
 when mortgagee in fee restrained cutting timber, 130 ; mortgagee com- 
 mitting waste, not applying money arising from sale of timber in sinking 
 interest and principal, 130, easements obtained by means of trespass of 
 mortgagor, 130 ; mortgagor redeeming, quieting in possession, settlement 
 by mortgagee of mortgaged estates, 130 ; re-assignment where contract by 
 mortgagee with power of sale, 131 ; mortgagee is trustee for mortgagor 
 and those claiming under him, of surplus purchase-money 131 ; rights 
 of mortgagee of business premises in possession, 243 ; after foreclosure 
 and sale, action to recover difference between debt and purchase-money, 
 restrained, 374 ; mortgagee cannot, in Equity, without concurrence of 
 mortgagor, release mortgagor's vendor from covenant for quiet enjoyment, 
 • 374;; mortgagee dealing with mortgaged estate so as to render it im- 
 possible to restore it, 374 ; where mortgagee is, with regard to mortgagor, 
 an unliquidated mortgagee, mortgagee, on suit to redeem, not restrained 
 
 Digitized by Microsoft® 
 
INDEX. 449 
 
 MORTGAGES— coJiWwMed. 
 
 from legal remedy to get possession, 374, 375 ; position of assignee of 
 mortgagee — ^rights of mortgagor as to rc-conveyance, 375 ; where two 
 properties mortgaged to same person for distinct sums, position of surety 
 for one of properties, 375, 376 ; legal delivery of chattels ty possession, 
 &c., under agreement to assign by way of, 389 ; mortgagee's action against 
 mortgagor to recover principal, &o., where question raised whether parties 
 in relation of vendor and purchaser, restrained, 405. 
 See Companies, &c. ; Covenants; Ecclesiastical Matters, &c.; Exe- 
 cutions ; JuDOMENTs ; Penalties, &c ; Promissoby Notes ; Sales, &c. ; 
 Shipping &c. ; Stjbett. 
 
 MUNICIPAL COBPOEATIONS, 
 
 parties to institute suit against, to enforce public trusts, 293 ; burpess claim- 
 ing right in part of corporate estate, 293 ; charter acted upon until pro- 
 ceedings to set it aside, 293 ; where corporation entitled to grant leases, 
 rents being devoted to maintenance, &c., 293 ; where existing public 
 body as a, is entrusted with duty and powers of making public improve- 
 ments, 294 ; when town council of borough restrained acting on a notice 
 duly given, 294 ; corporation restrained permitting corporate land to be 
 used for other purpose than that to which dedicated, 294; restrained 
 exercising powers where it has lain by, 295 ; applying rates for certain 
 purposes, to other purpose, 295 ; borough fund is trust fund, and its ex- 
 penditure upon any other purpose than to which legally applicable 
 restrained, 295 ; parties who receive the fund compellable to account, 295 ; 
 city corporation is in nature of trustee of money in treasury for corporators 
 and meditated misappropriation, restrained, 295 ; town council may be 
 restrained abusing a power given them by Municipal Eeform Act, 
 1836.. 295; no interference in ordinary management of borough fund, 
 296 ; when equity will not and will interfere with lawful exercise of 
 powers of corporation to act at discretion, 296 ; a city restrained taking 
 private property without right, &c., 296. 
 
 N. 
 
 NAME : See Trade Marks. 
 
 NATIONAL POLICY: fe Public Policy. 
 
 NEGLIGENCE : See Corporations, Quasi, Aggregate ; Instruments. 
 
 NEGOTIA"BLE SECURITIES, INSTRUMENTS, 
 
 when transfer of negotiable securities, &c., restrained, 187 ; by general rule 
 onus on maker of negotiable securities, to shew paid, 382 ; what holder 
 (unless derivative indorsee, &c.), must shew, 382. 
 See Companies, &c.. Parties in Loco Parentis. 
 
 NEWSPAPER: See Authors, &c.; Libel. 
 
 NOTICE, 
 
 person taking property with, may be restrained using it, 38, 39 ; same of 
 
 constructive, 39. 
 See Railway Companies ; Settlements. 
 
 NUISANCE, 
 
 general principle on which a Court interferes, 99 ; on what the jurisdiction 
 
 2 G 
 
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450 INDEX. 
 
 NUISANCE— comforatted. 
 
 rests, 99; distinction between public and private, 100; against what 
 nuisances Equity interferes, 100 ; permanent and serious, io what regard 
 had, 100 ; considerations of comfort and convenience, material question, 
 with respect to, 100 ; at Law, only restrained, 100 ; fears of mankind do not 
 create, 100 ; mere apprehension of, not enough, 100 ; contingent, uncertain 
 whether mischief or not, no injunction ; 100 ; where probability of imme- 
 diate prospective nuisance, threatened alterations preventing comfortable 
 enjoyment, interference, 101 ; though public, if special damage, private in- 
 dividuals relieved, and without Attorney-General, 101 ; public and private, 
 restrained, 101 ; threatened acts restrained, 101 ; temporary and occa- 
 sional, no injunction, 101 ; evidence conflicting, no interlocutory injunc- 
 tion, 102 ; when Equity interferes and when not, 102 ; though damage 
 small, if danger to stability, or continuing, Court interferes, 102 ; trivial, 
 no interference, 102 ; by noise, 102, 103 ; Equity enjoins injurious act, 
 pending proceedings to try the lawfulness of act, 103 ; stench, 103 ; health, 
 injury to, by, 103; if evidence satisfactory, injunction without trial of 
 question whether, 103 ; if substantial damages might be recovered, in- 
 terference, 103 ; protection, though in manufactory plaintiff uses a process 
 of great delicacy, 103, 107 ; small extent of plaintiff's interest, 103 ; effect 
 of lying hy, 103, 104 ; though delay may prevent interlocutory interference, 
 no bar at final hearing, 104; effect of delay, 108; encouraging, may 
 raise an equity to restrain an action for damages, 104; interlocutory 
 injunction as to stopping a trade or momufactory, 104 ; injunction in 
 substance mandatory as to nuisance from commercial works, 104 ; public 
 bodies, intended works of, 105 ; motives of suit in alleged public, 105 ; 
 where party can do acts complained of, on other parts of property without, 
 &c., inconvenience, 105 ; pollution of water restrained, though by local 
 board, 105 ; fouling water restrained, 105, 106 ; defendant must remove, 
 unless impossible, 106 ; if public and private, when Court interferes, 106 ; 
 irremediable, incapable of compensation, Court can impose terms pending 
 trial, 166 ; in violation of Common Law right, where right or violation 
 denied, 107 ; inconvenience to public very small, no injunction, 107 ; to 
 trade, when not restrained, 107 ; cannot be justified by others similar, 
 107 ; where no suspicion of rivalry in trade, 108 ; motive of public policy, 
 not sanction wrongdoing, 108; though beneficial to public, yet inter- 
 ference, 108 ; unless trifling injury, 108 ; acquiescence in, no implied, in 
 extension, 108 ; occupier of land, by license of owner, making a, both 
 liable, 109 ; houses let to weekly tenants, reversioner, 109 ; bill of peace to 
 be quieted in alleged nuisance, 109 ; effect of acquiescence with reference 
 to action at law in respect of, 374. 
 See CoRPOBATioNS, Quasi, Agsbboatb ; Tbbspass. 
 
 NOTES : See Pbomissokt Notes. 
 
 0. 
 
 OFFICE OF TRUST, &o. : See Shipping, &c. 
 OFFICERS OF THE COURT, 
 
 when Court interferes in matters of complaint against, 281 ; action of 
 
 trespass against messenger, 410 ; where process set aside for irregularity, 
 
 ofiScer or party must apply promptly, 411. 
 
 Digitized by Microsoft® 
 
INDEX. 451 
 
 ORDINARY JURISDICTION, COURTS OF, 
 
 when proceedings in, restrained, 9 ; the injunction is directed to the parties 
 only, 9; it is immaterial that the party is prosecuting his action in 
 foreign Court, 9. 
 
 OUTLAWRY, 
 
 process of, stayed where equities between parties, 398. 
 OUTSTANDING TERMS, 
 
 setting up, restrained, 33 ; but no interference after ejectment where term 
 set up, except in another ejectment, 33. 
 
 P. 
 
 PAINTINGS : See Chattels. 
 
 PARENT AND CHILD— INFANTS, 
 
 contract by father depriving himself of parental control, when valid, when 
 not, 276 ; power of Equity to control rights of father over child, 277 ; as 
 to the religion in which children should he brought up, 277, 278 ; agree- 
 ment before marriage as to religion of boys and girls, 278 ; rights of 
 infant against a person entering on his estate during infancy, 279. 
 
 See Wards, &o. 
 
 PARTIES IN LOCO PARENTIS, 
 
 persons paying to, duty of, 382, 383. 
 
 PARTIES IN PARI DELICTO, 
 
 considerations, when, 48, 49 ; Court has discretion as to interfering, 48 ; 
 prescribes terms, 48. 
 
 PARTITION, 
 
 pending partition suit, no interference with property, by Court or parties, 65 ; 
 agreement for, by parties apparently, &c., entitled as, &c., 140. 
 
 PARTNERS, 
 
 sale by one partner of his share of going concern to the other partners 
 imports sale of goodwill, 232 ; on such sale of business and goodwill what 
 vendor restrained from, 232 ; proprietor, partner and editor of periodical, 
 on dissolution of partnership, restrained advertising publication discon- 
 tinued, name of the work is partnership asset, 280. 
 
 See Agebembnt ; Bills of Exchange ; Companies ; Ejectment ; Exb- 
 cuTOKS ; Paetnerbhip ; Publication ; Restraint of Trade ; Secrets. 
 
 PARTNERSHIP, 
 
 to what, arbitration clauses commonly inserted in partnership articles apply, 
 and to what, not, 234 ; as to agreements to refer disputes to arbitration, 
 238 ; from what. Equity will restrain a partner during term, 284 ; and what, 
 after dissolution, 234 ; when upon a bill for dis.solution Court will or will 
 not appoint a receiver, 234 ; when on an interlocutory application, 234 ; 
 power, &o., of sole solvent partner upon bankruptcy of co-partner, stated, 
 234, 239 ; and cannot be transferred by assignment, 234, 239 ; or by exposing 
 himself to a judgment, 235, 239 ; assignees in bankruptcy of one partner 
 restrained selling partnership joint effects, 235 ; as to insanity of partner, 
 235 ; constituted by verbal agi'eements, interference in cases of, 235 ; 
 party treated as a member of, consisting of an association of a great 
 
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 Digitized by Microsoft® 
 
452 INDEX. 
 
 PARTNEESHIP— coraMnaed. 
 
 number, 235 ; principles as to parties bound to each other by express or 
 implied contract to promote an undertaking, 235, 236 ; mere temptation 
 to abuse partnership effects in consequence of joining another concern, 
 236 ; as to goods for which strong grounds for thinking purchased with 
 partnership property, or with money for which partner accountable to, 
 236 ; partner no right to employ partnership property in private specula^ 
 tion, 236 ; partner, after determination of, restrained disclosing secret; 
 
 236 ; what a manager, afterwards partner, may or may not do, on setting 
 up separate business, 236 ; what acting partner will or will not be re- 
 strained from doing, 236, 237; when surviving partner restrained disposing 
 of joint stock, 237 ; as to granting a lease to personal representatives of 
 deceased partner having contracted to take same for partnership trade, 
 
 237 ; where at suit of surviving partner, sheriff restrained removing, &o., 
 partnership effects, 237 ; where no interference in favour of party claiming 
 under bill of sale by one partner, 237 ; sum borrowed by one partner on 
 his own security, applied for partnership purposes, with knowledge of 
 other partner, not a partnership debt, 237; executions on partnership 
 assets for private debts, restrained, to what, in such case, execution creditors 
 entitled, 238 ; partner excluding co-partner, 238 ; removing partnership 
 books, 238 ; no interference where terms, &c., of partnership agreement 
 harsh, 238 ; where gross mismanagement and neglect, when Court will or 
 will not interfere, when means of redress, <fcc., provided by articles, 238 ; 
 Equity compels partners to act according to provisions of instruments 
 they have executed, 239 ; partnership accounts, as to ways of taking, 
 239 ; when relief as to premium, 239 ; extent of right of separate creditor 
 of one partner against joint property, 394 ; creditor of firm agreeing not 
 to press claim, upon each partner endorsing note for half amount, one 
 only complying, 394. 
 
 See Bank of England ; Bankeuptct ; Insolvency ; Partners ; Soli- 
 citors ; SUEBTY, &c. 
 
 PATENTS, 
 
 jurisdiction of Equity with reference to, is foimded upon legal right, 141 ; 
 course of Court upon application for injunction, 141, 142, 143, 144, 145, 
 146, 149 ; exclusive enjoyment, 144, 146 ; possession, 144 ; evidence 
 required to prove piracy, 145 ; where difficulty in obtaining proof of 
 piracy, 145 ; where locality of manufacture is foreign, rebutting prima 
 facie evidence, 145 ; manufacture and sale abroad as well as in England, 
 sale in one country implied license to sell, &c., in the other, when rebuttable, 
 145 ; delay in filing bill disentitles to interlocutory injunction, 146 ; delay of 
 nine years pending action for damages is fatal, 151 ; when injunction granted 
 before hearing of cause, 146 ; interdict in Scotland, effect of, 146 ; evidence 
 required for interim injunction, 146, 147 ; in recent patent, not of course 
 to require establishment of right at Law, 147 ; evidence required in recent 
 patent, on application for ex parte injunction, 147 ; nature of specification 
 required, what a good specification, what not, 147, 148 ; invention partly 
 original, partly communicated from abroad, what required in patent and 
 in specification, 148 ; patent for a combination, 148 ; specification of 
 invention consisting in use of known materials in new proportions, 148 ; 
 what evidence required in such a case, 148 ; a working instruction, &c., 
 
 Digitized by Microsoft® 
 
INDEX. ' 453 
 
 VATmiTS— continued. 
 
 as to mode of conduoting a process previously known, not subject of a 
 patent, 149 ; are not prima facie good, 149 ; wliere defendant's patent not 
 so old as plaintiff's, restrained issuing circulars intimidating public, 149 ; 
 patentee threatening proceedings for infringing, 149 ; licensee of, position 
 of, 149, 150 ; licensor, position of, 150 ; what effects an estoppel arising 
 upon a judgment at Law, 150; defendants in Equity not parties to 
 action, not estopped, 150 ; promise to commit no further infringement, 
 yet injunction, 150 ; retail dealer selling innocently, 150 ; account of 
 profits, when decreed, 150, 151 ; decree for inquiry as to damages and 
 account of profits, is incorrect, 151 ; hearing of cause after expiration of 
 patent, 151, 152 ; form of inquiry as to damage, 151 ; difference between 
 a trade-mark and a patent as to inquiry as to damage, 151, 152 ; suit 
 where bill filed so shortly before expiration of, that no relief obtainable 
 except damages, 152 ; bill against manufacturer and person using article, 
 right of plaintiff as to, 152 ; all issues in favour of patentee, appeal to 
 Lords, no interference with right to final order for injunction, 152. 
 See Pbbeogativbs of Cbown ; Publication. 
 
 PAUPEE DEPENDANT : See Trespass. 
 
 PENALTIES— CONDITIONS, , 
 
 when relief against a condition attaching in default of payment of sum as 
 penalty, 249 ; what proviso in mortgage as to payment of larger sum for 
 interest, relieved against, what not, 250 ; reservation of right to full pay- 
 ment of money actually due if failure to pay smaller sum on day certain, 
 neither penalty nor forfeiture, 250 ; covenant in effect a penalty, 250 ; relief 
 against penalty for not performing unreasonable contract, 250 ; proviso 
 intended to be as security for debt, and not in nature of penalty, 250 ; 
 instances where Equity carries on debt beyond penalty, 250, 251 ; penal- 
 ties and forfeitures, must as a general rule be waived if equitable relief 
 sought, 251. 
 
 See Agreement ; Copyright ; Waste. 
 
 PENSIONS, 
 
 when assignments of, are void, when not, 247, 248, 249 ; when receipt of 
 pension restrained, 248 ; as to compensation money for loss of ofBce in 
 Customs, 248 ; what incomes may and may not be assigned, 248, 249 ; as 
 to half-pay, 249. 
 
 PICTUEES : See Chattels. 
 
 PLAY : See Pdblication. 
 
 POLICIES, 
 
 transfer of business restrained until provision made for payment of, 184 ; 
 upon assurance, where concealment of ship's danger, 184, 185 ; rights as 
 to policy, in respect of discovery of fraud to defend action and delivery up 
 of, 378 ; effect of non-communication of a fact vitiating policy, 379 ; Equity 
 has concurrent jurisdiction in such cases with Court of Law, 379 ; but no.in- 
 terference where question of fraud is one for jury, 379 ; nor where Court 
 of Law is proper tribunal to try the questum, 379 ; where owner of building 
 insures it against fire, not to full value, and building burnt by carelessness 
 of servants of third party, rights of insured, 379. 
 
 Digitized by Microsoft® 
 
454 INDEX. 
 
 POSSESSION, 
 
 rules where, upon applications to restrain spoliation, 63, 64 ; getting into, 
 tortiously, pending suit to establish equitable title, 370; where succession 
 of occupiers of waste land in colony permit one another to continue in, 
 fifty years, 370 ; where result of ejectment shews defendant in. possession 
 of woodland more than twenty years, 370. 
 
 POWBES, 
 
 party may deprive himself of the right of executing power, 251 ; defect in 
 
 execution of, supplied in favour of purchasers for value, 251 ; not done on 
 
 ground of non-execution of, 251 ; as to persons having special, conferred by 
 
 Act for effecting particular purpose, 293. 
 See Ejectment; MunicipaIi Cokpobations ; Public Body; Sales, &c.; 
 
 Teustbes. 
 
 PEEEOGATIVES OP CEOWN, 
 
 acts in derogation of, in Crown lands, restrained, 263; grants by Crown in 
 derogation of forestal rights, good, 263 ; as cutting wood on waste lands in 
 royal forest, 263 ; as to parties liable for infringing exclusive right granted 
 to patentees by Crown, 263, 264 ; interdict to protect public right in sea- 
 shore, 264. 
 
 PEESCEIPTION, 
 what good, 77. 
 See Easements. 
 
 PEESCEIPTION ACT (2 & 3 Will. 4, c. 71), 
 
 to what it applies upon claims by custom, &c., 82. 
 See Light, &c. 
 
 PEINOIPAL AND AGENT, 
 
 duties of agent are in nature of personal service, and as such cannot be en- 
 forced in Equity, 269 ; but an agent will be restrained acting inconsis- 
 tently with rights, &c., of principals acting as trustees, 269 ; agent to 
 ob|tain payment of note by action in name of payee, enjoined appropri- 
 ating proceeds of judgment, until adjudication, 269; agent or bailiff 
 confounding principal's property with his own, 269 ; or a party under- 
 taking to keep property of another distinct, mixing it with his own, 269 ; 
 agent, qua agent, obliged to indorse bill, with knowledge of indorsees, 
 402 ; confidential agent suing employer on bond, 402. 
 
 See Account ; Liens ; Shipping, &c. 
 
 PEINCIPAL AND SUEETY, 
 
 doctrines relating to, same at Law and in Equity, 267, 383 ; if defence at 
 Law, no injunction, 267 ; if case already raised at Law, no injunction, -267; 
 where surety has executed bond on faith of its being executed by prin- 
 cipal debtor, principal having executed instrument upon which surety may 
 become specialty creditor, 267 ; as to giving time to principal, with reser- 
 vation of rights against surety, 267 ; difference, where release given, 267, 
 268 ; agreement not amounting to discharge at Law, may do so in Equity, 
 and that releases surety, 268 ; creditor fraudulently assisting principal with 
 intent to hinder surety in his remedy against principal, 268 ; when judg- 
 ment suffered by surety, enjoined, 268 ; when action against surety, en- 
 joined, 268 ; when judgment against surety enjoined, when not, 268, 269. 
 
 See Bills op Exchange ; Bonds ; Promissory Notes ; Sbt-opf ; Subbtt. 
 
 Digitized by Microsoft® 
 
INDEX. 455 
 
 PEIVY COUNCIL, 
 
 giving time to apply to, for liberty to appeal, 23. 
 See Courts of Common Law. 
 
 PROBATE, 
 
 where Court considers, void, 24 ; of false will surreptitiously obtained, 189 ; 
 where parties dissatisfied with, 254 ; when, comes before Court on an inci- 
 dent in the cause, admitted by both parties, 254 ; Equity relieves against, 
 fraudulently obtained, 255. 
 See DoMiciL. 
 
 PROBATE COURT, 
 
 when proceedings in, restrained, when not, 21. 
 
 See Discovert. / 
 
 PROCEEDINGS IN FOREIGN COURT: &e Foreign Courts. 
 
 PROMISSORY NOTES, 
 
 when Court relieves against, 186, 187 ; taken when overdue, Equity has con^ 
 current jurisdiction with Courts of Law in relieving against, but no inter- 
 ference if equities furnish clear defence at Law, 188 ; where parties intend, 
 joint and several, but through ignorance expressed to be joint only, semh. 
 relief against surety and principal, 188 ; party obtaining delivery up of, upon 
 which wife liable at marriage, upon giving a bond, pleading infancy, 192 ; 
 holder, indorsee of, taken long after overdue, 382 ; as to, obtained by abuse 
 of confidence or undue influence, 383 ; action on, to secure mortgage debt, 
 after debt received, 383 ; as to action by depositee of, against giver, where 
 note discharged by payee in course of dealings'with depositee, 383 ; given 
 by insolvent, to one of creditors, to secure remainder of debt, in excess of 
 others, 384. 
 See Bills of Exchange. 
 
 PROPERTY, 
 
 parting with, restrained, though principal party out of jurisdiction, 61 ; dif- 
 ference at Law and in Equity, in assignment of non-existing, to be acquired 
 at future time, 243 ; as to interference, where acts, whether connected with 
 crime or not, go or tend to destruction or deterioration, &c., of, or a 
 business, 290. 
 
 PROSPECT : See Light, &c. 
 
 PROVISO : See Penalties. 
 
 PUBLIC BODY, FUNCTIONARDilS, 
 
 limits of interference with, 24 ; when Court will not, and will, interfere with, 
 50 ; interfering with property of individuals by virtue of Act, bound to 
 shew it is empowered to do what it proposes, 296 ; exceeding its powers, 
 restrained, 296 ; public bodies restrained abusing parliamentary powers, 
 347. 
 
 See Chancery in England. 
 
 PUBLIC INTERESTS, 
 
 no answer to rights of individuals, 51 ; Court not inclined to listen to sug- 
 gestions of, as against private rights, 319. 
 
 PUBLIC POLICY, 
 
 acts, against, what, restrained, 51 ; if legal right, interference not refused, on 
 
 Digitized by Microsoft® 
 
456 INDEX. 
 
 PUBLIC FOLICY— continued. 
 
 grounds of national, 51; as to restraints upon trade, 231; where persons 
 appointed by Act to perform public office, 294. 
 See Creditobs, &c. ; Felons, &c. ; Municipal Coepobations. 
 
 PUBLICATION, 
 
 of proceedings of Court, 220 ; printing of brief before cause comes on, 220 ; 
 information obtained from production of documents, 221 ; of facts con- 
 trary to agreement, 221 ; of a catalogue containing description of work 
 kept for private use, &o., 221 ; public representation of a dramatic piece at 
 a theatre, not a, to deprive author or assignee of right of property in his 
 production, 221 ; of words, &c., of play obtained, &c., performed in another 
 country, 221 ; spectator witnessing public performance of play, 221 ; sur- 
 reptitious procuring of literary property of another, and before publication, 
 221 ; obtaining works of art, knowing them obtained by breach of trust, 
 221 ; unpublished manuscript of deceased author, 222 ; when publication 
 not restrained, 222 ; rights of purchaser of manuscript, 222 ; where two rival 
 works, what advertisement will, and will not be restrained, 222 ; publish- 
 ing lectures orally delivered, substantially reduced to writing, 222 ; where 
 not reduced into writing, 222, 223 ; one of several partners in a patent not 
 restrained publishing book with account of invention, 223; publishing 
 magazine as continuation of plaintiff's, 224; insertion of detached extracts 
 from literary work, in nature of magazine or review, as foundation for 
 criticisms, 224 ; of a public document, 224. 
 See Letteks. 
 
 PUBLISHEES : See Authoes, &c. 
 
 E. 
 
 RAILWAY : See Railway Companies. 
 
 RAILWAY COMPANIES, 
 
 the classes of cases in which Equity has been called upon to interfere with 
 reference to corporations created by Act for public purposes, stated, 308 ; 
 parties injured by conduct of, to what entitled, 308 ; as to construing 
 compulsory powers of, 308 ; as to agreements to withdraw, &c., opposition 
 to bill, 309 ; such agreements by landowner, peer, 309, 310 ; when equity 
 interferes and when not to prevent proceeding in Parliament for private 
 bill, &c., 310 ; when building by, iu violation of a covenant, restrained, 310, 
 311 ; violation by, of undertaking of, with Court, by further soliciting 
 bill, 311 ; as to issuing shares, 311 ; directors procuring advances on their 
 own personal security, 311 ; as to issuing of " Lloyd's " bonds, 312 ; defi- 
 nition of such bonds, 312 ; what sufficient to entitle, to take lands, 312 ; as 
 to restraining, taking possession of land until valuation and bond, or com- 
 pensation, or jury has given verdict, &c., 312 ; notice to treat, counter- 
 notice to take whole, 312, 313 ; as to compelling, to take beyond what it 
 requires, less than whole, 313 ; as to exercise of compulsory powers to take 
 land, 313 ; sole judges as to whether they will or not take lands, described in 
 Act, 313 ; where conflicting powers of two, as to the same land, 314 ; when 
 interference, and when not, where, take possession of land, 314, 315 ; when 
 no interference with taking land by, 314, 315 ; where proceedings to assess 
 compensation, restrained, 315 ; position of owners of private railway made 
 over an owner's land, 316 ; when interference in favour of, as against one 
 
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INDEX. 457 
 
 BAIL WAY COMPAmES— continued. 
 
 of several tenants in common, 316 ; obtaining possession of land in hands 
 of receiver, restrained, 316 ; duty generally of, seekmg to avail themselves 
 of provisions of sect. 85 of Lands Clauses Consolidation Act, 1845, with re- 
 ference to bond, &o., 316; where power of fully completing depends on 
 voluntary consent of individuals having property on proposed line, 317 ; 
 where promoters have agreed with lessees to give compensation, 317 ; 
 treating with mortgagor alone, with notice of mortgage, 317 ; notice to 
 landowner of intention to summon jury, may still proceed to obtain posses- 
 sion under 8 Vict. c. 18, s. 85 . . 318 ; where upon verbal consent, has entered 
 land, &c., 318 ; where entry by, without notice or permission, 318 ; subse- 
 quent treating with, considered waiver of objections to proceedings, 318 5 
 where mistalce by, as to lands valued and taken, and question merely one 
 of value, 318 ; owner of small part of land, the rest of which taken by 
 company, into which put in possession in ejectment against, entitled to 
 restrain disturbance by, 318 ; when Equity will, and will not, enforce 
 specific performance of contracts in regard to, 319, 320, 321, 322, 323 
 where mandatory injunction against, to compel specific performance, 320 
 when, by their acts, waive their remedy for specific performance, 320 
 where, let into possession under agreement, has made default in payment 
 of bond given for payment of purchase-money, 321 ; leasing railway to 
 another company, part of purchase-money remaining unpaid, 321 ; indefi- 
 nite agreement for usgr of, where actual user has removed difficulty as to 
 terms, 321 ; agreement by director with, for benefit of himself, &c., 321 ; 
 where, on footing of offer, possession taken by, undisturbed until after ex- 
 penditure on faith of offer, 322 ; though land be taken by, by private 
 contract, jurisdiction of Equity to secure to vendor easements contracted for, 
 not ousted, 322 ; as to restraining one, from entering into agreement with 
 another, which a violation of, or inconsistent with, subsisting agreement 
 between plaintiff, railway company, and defendant, 322 ; landlord having 
 power to determine lease, agreeing to become purchaser of lessee's interest, 
 giving notice to determine lease, 322, 323 ; as to crossing line of another, 
 and disabling itself to perform contract for way-leave with an owner of 
 land, 323 ; in construction of a railway, no enforcing specific performance, 
 323 ; when notices considered abandoned, 323; company treating notice, 
 not given bond fide, abandoned, 323; when, may abandon notice, 323; can 
 only proceed in relation to what included in notice, 324 ; the proceeding 
 before jury must be consistent with precept and precept with notice, 324 ; 
 when new tenant entitled to notice to treat, 324 ; effect of notice to treat, 
 324 ; land, where notice, not required for railway, 324 ; as to assessing 
 lands, not authorized to take, 324 ; to what right of support from land, 
 railway entitled, when not entitled, with reference to mines under and 
 adjacent to tunnel, 325; as to agreement between two, containing 
 clauses beyond powers of one company, and arbitration clauses, 325, 
 326 ; as to agreement ultra vires, 326 ; and in reference to funds of, 
 326, 328, 329 ; and delegation of powers by one, to another, 326, 328 ; 
 as to agreement to apply to Parliament for powers to enter into terms 
 of the latter nature, 326 ; when Court does and does not interfere in 
 cases of non-completion of entire line, &c., 326, 327 ; as to grant by one 
 railway, to another, of use of lines, &o., 328 ; application to Parliament 
 to materially alter existing rights of two classes of shareholders, 328 ; 
 
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458 INDEX. 
 
 EAILWAT COMPANmS— continued. 
 
 directors guaranteeing profits and securing capital of intended steam- 
 packet company, 329 ; spending funds in prosecuting suit not instituted 
 by itself, 329 ; act done in informal way, 329 ; matters of internal arrange- 
 ment or management, 329, 330 ; contrivance by directors to prevent holders 
 of shares exercising legal rights, 330 ; as to carrying on trade distinct 
 from purposes of incorporation, 330 ; as to trafSc agreements, 330 ; cove- 
 nants by, as to using land as a station, 331 ; agreement by, with con- 
 tractors for working the line, &c., 331; as to amalgamation, 331, 332; 
 joint use of station, 332 ; obstruction of engines running over another line 
 by agreement as to payments for right, &c., 332 ; agreement to grant ease- 
 ment of that nature need not be by deed, 332 ; as to running certain trains 
 without stopping at certain station for refreshment in violation of contract, 
 332 ; company having running powers must shew regulations as to con- 
 struction of carriages made by other company having powers to make 
 regulations are unreasonable, &c., 333 ; as to the construction of bridges, 
 333, 334 ; and where prejudicial to owner of bridge and tolls, 336 ; as to 
 duties of, in constructing works, 334 ; as to powers of, to alter levels of 
 approaches to bridge, 334, 335 ; where allegation that railway would be 
 stopped, no answer to requisition as to incline of bridge, 335 ; mandatory 
 injunction in effect compelling to pull down walls to -prevent another 
 company from crossing line by bridge, 335 ; as to making deviation within 
 powers of deviation, 335 ; accommodation works, 335 ; turnpike road; 335, 
 336 ; new road, for old, 336 ; private road, obstruction of, by partially di- 
 verting stream of water of navigable river, where notice and acquiescence, 
 336 ; erection of buildings over railway tunnel upon land sold by, 337 ; 
 as to engines brought or used upon railway, 337 ; as to ben of unpaid 
 vendors to, for purchase-money, and their rights and remedies, and course 
 of Court, 337, 338, 339 ; preference bondholders made preferred creditors 
 by statute with lien on road, &c., as to earnings of railway, 338 ; vendor's 
 lien on land sold to, in respect of unpaid compensation for damages 
 awarded, &c., 338; as to mortgage securing money borrowed by, ac- 
 cording to form in Schedule C, Companies Clauses Consolidation Act, 339 ; 
 mortgagee of undertaking of a railway under debenture, 339 ; as to bond- 
 holders, 339 ; as to grantee of rent-charge in consideration of land sold to, 
 339; words "dispose of," s. 128 of 8 Vict. c. 18, explained, 339, 340; 
 abandonment of undertaking, 340 ; when landowner's right of pre-emption 
 arises, under s. 128 .. 340 ; what " superfluous lands," &e., 340, 341 ; as to 
 who are, and rights of adjoining owners, and what are adjoining lands, 340, 
 341; as to clause prohibiting opening main line until junction line 
 opened, 341 ; if acquiescence and delay, application of funds in prose- 
 cuting works, powers having expired, not restrained, 341, 342; when 
 Equity will and will not restrain declaration and payment of dividend, 342, 
 343 ; when, restrained from issuing shares, &c., in payment of dividends, 
 342 ; misapplication of income is subject of internal regulation, 342 ; as to 
 company which has paid things properly chargeable to capital, out of 
 revenue, 343 ; when payment out of Court, of deposit, restrained, 343, 344 ■ 
 if judgment that payments are overcharges, same restrained notwith- 
 standing appeal to Lords, 344 ; where directors might be compelled to use 
 funds in possession to discharge .liabilities of company, instead of usin" 
 action to compel payment of debt by a shaj-eholder, notwithstandin" de- 
 
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INDEX. 459 
 
 RAILWAY COUPANIES— continued. 
 
 fence at Law, shareholder may proceed in Equity likewise, 344 ; where 
 legal right alone in question and qualified consent and acquiescence. Court 
 awards damages, instead of restraining violation of right by, 344 ; as to 
 obstruction by, of alleged right of way where doubtful whether public way 
 exists and no private right estabhshed, 344 ; where company relies on 
 document as a discharge of claim for injuries, 345; where agreement 
 obtained from person suffering from railway accident not allowed to be 
 used, 345 ; and when agreement not interfered with, 345 ; as to taking 
 possession of works on alleged default by contractor, 345, 346 ; as to 
 selling plant of contractor, 346 ; as to insolvent, filing scheme of arrange- 
 ment with creditors, debenture holder bound by scheme, 346; as to 
 insolvent railroad, 346, 347 ; where question whether shares have or not 
 been relinquished, &c., 347; no interference upon mere question of 
 account between different classes of shareholders where Act has provided 
 arbitration, 347. 
 See GrRANTS ; Land ; Mines. 
 
 RECEIVERS, 
 
 Court of Equity will not, unless with leave, permit its, to be interfered with, 
 281 ; but will restrain its receiver prosecuting unjust, &c., suit at Law, 
 281 ; paying over moneys to judgment creditor who has obtained garnishee 
 order, moneys must be repaid, 406, 407 ; ejectment by judgment creditor, 
 where notice receiver in possession, 406 ; where action of trespass against, 
 restrained, 410. 
 
 See Account ; Indictment; Partnership; Railway Companies ; Wastb.^ 
 
 RECOGNIZANCE: See Bonds; Ejectment. 
 
 RELEASE : See Surety. 
 
 RELIEF AT LAW, 
 
 if no adequate, injunction granted, 33. 
 
 RENT, 
 
 where Court does not interfere, 63 ; landlord cannot restrain proceedings on 
 judgment for excessive distress, on ground rent, &c., subsequently due, 
 370 ; what ordered pending interpleader suit to determine rights of defen- 
 dants to rent, 370. 
 
 See Covenants. 
 
 REPLEVIN BOND: See Surety. 
 
 RESTRAINT OF TRADE, 
 
 covenants in, when void, when not, 230, 231, 232 ; when contract in, may 
 be entered into, .230 ; principle established by all the cases, semi., 231 ; when 
 contracts in, are valid, 231 ; when impUed contract in, enforced, 231 ; un- 
 derstanding upon good consideration, retiring partner not set up trade in 
 same vicinity, 232 ; no interference where liquidated damages obtained for 
 breach of contract in, 232 ; where bond with penalty in, 233 ; principle 
 in such case, stated, 233 ; when minor restrained from violating agreement 
 in, 233 ; what consideration is suflSoient to support instrument in, 233. 
 
 RIGHT OF WAY, • 
 
 protected from hindrance arising from use of it by another, 214 ; grantor of, 
 obstructing rights of grantee, 215 ; grant for purpose of grantee's building 
 
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460 INDEX. 
 
 EIGHT OF ^NAY—cmtinued. 
 
 a house, what easement over grantor's adjoining land created, 215 ; acqui- 
 esced in by company, violation of, restrained, 217. 
 See Easements ; Land ; Bailwai Companies ; Waggons. 
 
 EIVER, 
 
 tidal navigable, riparian owner on, rights of, 65. 
 
 EOADW AT— HIGHWAY : See Basements ; Land. 
 
 S. 
 
 SALES, SALE, 
 
 if no trust and remedy at Law, sale of goods not restrained, 243 ; no exclusive 
 right to prevent, of subject not protected by patent, unless assumption of 
 name, &c., 243 ; under power, by treasurer and one of mortgagees of cor- 
 poration, restrained until, &c., 243 ; jurisdiction of Equity to enjoin sale of 
 real estate, 244 ; of property illegally taken in execution, restrained, 244 ; 
 so where it would cause a cloud on title, 244. 
 See Judgments. 
 
 SCHOOL : See Chaeities. 
 
 SEASHOEE : See Pbeeogatives of Cbown. 
 
 SECEETS, 
 
 obtained by breach of trust, &e., 138, 224 ; as to partner in business in 
 which secret process, not having right to knowledge of, openly taking 
 part in manufacture, permitted to acquire knowledge of process, &c., 224, 
 225 ; when a party having discovered ingredients of invention may sell 
 ingredients, &c., 225 ; obtained from books and papers in course of em- 
 ployment by plaintiff, 225 ; confidential communications involving fraud, 
 225 ; trader may sell, in business, and restrain himself using, 225. 
 See Paetnbbship. 
 
 SBCIJEITLES, 
 
 to common prostitutes, what the cases against, go upon, 193. 
 See Gambling, &c. 
 
 SEQUESTEATION : See Ecclesiastical Matters, &c. 
 
 SEQUESTEATOES OP COUET, 
 
 not allowed to be dispossessed, 281. 
 
 SESSION, OODET OP, SCOTLAND : See Codets. 
 
 SET-OPF, 
 
 when Court does not interfere, 229; if merely legal, proceedings not re- 
 strained, 393 ; when equitable set-off exists, 229, 230 ; what required to 
 restrain action for damages on ground of, 230 ; no, either at Law or in 
 Equity, where debts due in different rights,' 230 ; what party asking to 
 enjoin a judgmeiit on ground of, must shew, 230 ; when surety may set off 
 a claim of principal debtor, 230 ; cross-demand, purely legal, accrued after 
 verdict, 392, 393 ; where defendant has a personal charge and judgment 
 thereon against plaintiff, decreed entitled to a charge of greater amount 
 on defendant's estate, 393 ; no set-off of legal demand against distress for 
 rent, 393 ; when cross-claim against plaintiff at Law, but no right of set- 
 
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INDEX. 461 
 
 Sm^-0¥F— continued. 
 
 off, in action, 393 ; private debt due from trustee, not set-off against debt 
 due to trustee as trustee, 393. 
 
 See Account ; "Landloed and Tenant. 
 SETTLEMENTS, 
 
 when trustees of fund in settlement, notwithstanding notice, directed to deal 
 with them according to trusts, 247 ; voluntary, for good consideration, 
 position of purchaser for consideration, with notice, and of husband, 247 ; 
 until actual sale c. q. trust entitled to execution of trusts, 247 ; volunteers 
 no equity against purchase-money, when voluntary settlement of lands, 
 is avoided by subsequent sale for valuable consideration, 247 ; destroyed 
 by fraud, established, 247. 
 
 See Covenant; Husband and Wife ; Intekpleadee. 
 
 SHAREHOLDBES, 
 
 bill by shareholder to restrain proceedings at Law to recover from him 
 individually a debt due from company, not asking other relief, 405. 
 SHEEIPP, 
 
 trover against, for ejectment under writ of assistance, issued in pursuance of 
 
 order of Chancery, restrained, 410. 
 See Cokpokations AGGREaATB ; Inteepleadbb. 
 
 SHIPPING— SHIPMENTS, 
 
 effect of Merchant Shipping Act, 1854 (17 & 18 Vict. o. 104), ss. 70, 71, 
 upon status of mortgagee of ship, stated, 194 ; power of mortgagor remain- 
 ing in possession, 194 ; mortgagee bound by contract of mortgagor in 
 possession, 194 ; and mortgagees at suit of charterers restrained dealing 
 with ship inconsistent with, &g., charterparty, 194, 195 ; such contract 
 enures for benefit of mortgagee, on notice, 195 ; effect of act of mortgagor 
 prejudicial to security, 195 ; Court will not affirmatively enforce specific per- 
 formance of charterparty, 195, 197 ; what implied in such contract, 195 ; 
 mortgagee with notice of prior charterparty with mortgagor, 195 ; circum- 
 stances under which such contract virtually at end, 195 ; deposit of 
 instrument of mortgage, effect of, as to order and disposition of bankrupt, 
 195 ; mortgagee of ship taking possession, his rights and position, 195, 
 196 ; loss of profit by such mortgagee from non-user, or from speculation, 
 196 ; mortgage of ship at sea, 196 ; mortgagee of ship by bill of sale, omit- 
 ting to procure indorsement thereof on certificate of registry, registered owner 
 afterwards becoming bankrupt, 196 ; mortgagee of ship and assignee of all 
 charterparties and freight as further security taking possession before freight 
 payable, position of, as to assignee of freight knowing of mortgage, 196 ; title 
 of bona fide assignee for value of bill of lading as to unpaid vendor of the 
 goods, 196 ; when master may sign bills of lading in favour of shipper 
 without production of mate's receipts, 197 ; title of holder for value 
 thereof, as against prior indorsee of mate's receipt, 197 ; guardian of registered 
 infant owner of ship no power to sell or mortgage under Merchant Shipping 
 Act, s. 99 .. 197 ; position of mortgagee in such case, 197 ; owner of ship 
 restrained employing her inconsistently, &c., with charterparty, 197 ; 
 purchasers of ship with notice of chartei-party, 197 ; parties mutually bound, 
 restrained doing act inconsistent with charterparty, 197 ; parties restrained 
 employing ship inconsistent with rights under a charterparty, 197 ; part 
 owner entitled to account of past earnings, 1 98 ; when Court restrains sailing 
 
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462 INDEX. 
 
 SHIPPING— SHIPMENTS— co«*w«e(?. 
 
 of sMp on application of part owner, when not, 198 ; when Court will not, 
 at suit of charterers, restrain shipowner using ship inconsistent with 
 chaiterparty, 198 ; lien for general contribution to individual loss for 
 safety of ship, not extended to restrain master and shipowner delivering 
 cargo, &c., 198 ; master no hen on ship or freight for wages or expenditure 
 in ordinary course, case is one of ordinary principal and agent where special 
 contract ultra vires, 198; what master in such case is entitled to, as 
 against owner or mortgagee, 198 ; shipowners having benefit of contract 
 by master, to what extent chargeable in Equity, 199 ; title of depositees 
 of charterparty to secure balance due by depositor as against party entitled 
 to part of freight permitting depositor to hold out himself as entitled to 
 •whole, 199 ; master, with authority to employ vessel on freight, but not 
 purchase cargo, unable to procure freight, loading ship with his own cargo, 
 for what he must account, 199 ; general principle that trustee must not 
 make profit, applies, 199 ; ship about to sail advertised as a general ship, 
 intending shipper not bound to inquire as to existence of charterparty, 
 rights of person, without notice of charterparty, having placed goods on 
 board, 199 ; statutory jurisdiction of Chancery to settle, &c., liability of 
 owners for loss of life by collision, 200 ; rights of owner where invaUd 
 bill of sale, 200 ; s. 65 of Merchant Shipping Act, 1854, does not 
 deprive Court of its ordinary jurisdiction to protect property during 
 litigation, 200; person having no title procuring registry in his own 
 name, 201 ; poUcy of Ship Registry Act (8 & 9 Vict. c. 89) in dis- 
 regarding interest not on register, where inapplicable, 201 ; that Act does 
 not prevent a lien on certificate of original registry deposited with un- 
 registered owner, 201 ; party without lawful title procuring himself to be 
 registered owner, where restrained by Court, 201 ; bill of sale of shares 
 shewing it a mortgage, registration of an absolute sale, 201 ; Ship Eegistry 
 Acts negative equity resulting from notice, 201, 202 ; unregistered agree- 
 ment with registered owner, ship subsequently transferred to another 
 with notice of agreement, 202 ; by Merchant Shipping Act Amendment 
 Act, 1862, s. 3, equities may be enforced against owners and mortgagees, 
 202 ; Equity interferes iu cases of trcmsitus of merchandize, 202 ; vessel 
 unable to proceed on voyage without repairs, captain restrained selling 
 cargo shipped, 202 ; assignee of freight giving notice to broker of assignor, 
 position as to assignees in bankruptcy of owner, 203 ; when Court restrains 
 proceedings in Admiralty Court on bottomry bond, 203 ; bottomry bond 
 by master, when not supported against owners and mortgagee, 203 ; as 
 to restraining proceedings, &c., at Law, where strong suspicion of fraud 
 in assured, 389 ; where prior equitable claim to shipping documents not 
 properly insisted on, 389 ; where vessels have been agreed to be assigned, 
 are seized in execution for debt, 389 ; restraining actions for removing 
 defendants fi:om ofBce of ship's husbands, 390. 
 See Bills of Exchange ; Liens ; Policies ; Stoppage in Transitu. 
 
 SOLICITOR— ATTOENBY, ATTORNEY AND CLIENT, 
 
 ignorance by, of effect of deed, omission to inquire if will, such professional 
 ignorance and neglect as turns him to trustee of benefit to himself, 43 ; 
 restrained violating stipulations in bond to prevent practising within a 
 distance, &c., 282 ; covenant by articled clerk not to practise as solicitor 
 
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INDEX. 463 
 
 SOLICITOR— ATTORNEY, ATTORNEY AND Chm^T— continued. 
 
 within City of London, &c., enforced, 282 ; restrained communicating to 
 party suing former client documents, &c., which came to his knowledge 
 in respect of his employment for such client, 282 ; and the party will be 
 restrained using them, 282 ; as to clerk, commencing practice for himself, 
 acting as solicitor for parties against whom his master was employed, 283 ; 
 where solicitor has acted to a certain extent only for defendants, acts in 
 another suit by some of those defendants against others of them, 283 ; 
 as to discharging solicitor, and solicitor discharging himself, in reference 
 to solicitor's position as respects former client, making communications 
 which came to him confidentially, giving evidence of client's secrets, &o., 
 283, 284 ; position of, removed by effect of agreement upon dissolution 
 of partnership, 284 ; in partnership, cannot dissolve partnership as against 
 their client, to turn it over to one of themselves, 284 ; annuity given to 
 wife of, by client, under undue influence, 409 ; where instruments obtained 
 as gift or purchase in fraud of fiduciary situation of donee, &c., when 
 relationship that of attorney and client, no payment of money into Court 
 imposed, 409, 410. 
 See LiENB. 
 
 SOVEREIGN— SOVEREIGN PREROGATIVES, 
 
 when Equity will and will not interfere with reference to a sovereign right 
 or prerogative of foreign sovereiign, or prerogative or private rights of sove- 
 reign princes, 288, 289 ; acts of a government, in exercise of sovereign 
 and political power are not subject to control of Courts, nor transactions 
 of independent sovereign states between each other, 283. 
 
 SPECIFIC CHATTELS : See Chattels. 
 
 SPECIFIC PERFORMANCE : See Covenant ; Shipping, &c. ; Vendor and 
 
 POECHASBB, &C. 
 
 SPECIFIC THINGS, 
 
 when transfer of, restrained, 187. 
 
 STAKEHOLDERS, 
 
 seeking to retain part of stake, as to bill of interpleader, 269. 
 See Inteepleadee. 
 
 STANDING BY, 
 
 disentitles to interference, 36, 37. 
 See Easements ; Ejectment. 
 
 STATES: See Sovbreion, &c. 
 
 STATUTORY PROHIBITION : See Inj0nction, Intbelocutokt. 
 
 STOCK— CONSOLS, 
 
 when transfer of stock or dividends restrained, 184, 187. 
 
 STOCK EXCHANGE, 
 
 speculative transaction upon, no interference, 256. 
 See Gambling, &o. 
 
 STOPPAGE IN TRANSITU, 
 
 a bill in Equity lies to enforce, 246; to what the right of, extends, 246; 
 when trcmsitus not ended, 246 ; question in, deciding on consignor's right 
 of, 246. 
 
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464 INDEX. 
 
 STRANGEES TO SUIT, 
 
 Court considers amount of injury to, 54. 
 
 SUITS, MULTIPLICITY OF, 
 
 when relief given to preyent, when not, 17. 
 
 SUaGESTIO FALSI, SUPPEESSIO VEEI, 
 when, postpone an equity, 42. 
 
 SUPPEESSIO VEEI : See Stjggestio Falsi. 
 
 SUEETY, 
 
 promise by bond-creditor to principal debtor without consideration, no dis- 
 charge of co-obligor as surety, 406 ; test authorizing surety, to claim to be 
 discharged from liability, stated, 406; creditor giving time to debtor 
 without notice to, 406 ; agreement to refer, &c., between landlord and tenant 
 without concurrence of surety in replevin bond, 406 ; where partnership 
 to be wound up at time limited, and partner obligee in bond against loss, 
 &c., agreeing to continue without consent of, 406, 407 ; creditor having 
 bond with surety, taking mortgage from principal debtor, agreeing to 
 receive residue by instalments, &c., 407 ; creditor recovering judgment 
 against principal surety, levying execution on principal, &c., and giving 
 further time, without assent of, 407 ; rule of law as to suspending rights 
 against principal debtor and preserving rights against surety, 407 ; where 
 effect of a deed is to give a qualified release and not to extinguish the 
 debt, 407 ; where deed only amounts to covenant not to sue debtor, 407 ; 
 transaction otherwise operating as release of surety, has not that effect if 
 remedy against surety reserved, 407 ; when creditor appropriating subject- 
 matter of security for debt, releases surety, 408 ; surety on understanding 
 to be so with another, co-surety not executing, 409 ; creditor agreeing, at 
 request of surety, to enter up judgment, &c., omitting to file warrant, and 
 debtor becoming bankrupt, 408 ; when transactions varying position of 
 surety, known to him, 408 ; where obligees by their ovm conduct prevent 
 performance of object intended to be secured, 408 ; where not sufficient 
 probability surety not entitled to be protected at hearing, action not 
 restrained on interlocutory application, 408. 
 See Promissoet Notes ; Bonds. 
 
 T. 
 
 TENANT : 8ee Interpleader. 
 
 TENANTS IN COMMON : See Eailwat Companies. 
 
 TIMBEE : See Copyhold ; Custom ; Mortgages ; Trees ; Waste. 
 
 TIME, 
 
 suit in Equity prevents running, 25 ; and eviction at Law against equitable 
 
 right, restrained, 25. 
 See Acquiescence. 
 
 TITLE, 
 
 quieting, though a decree for, after-acquired title may be set up, 33 ; title 
 
 arising out of violation of right, breach of contract, confidence, 137, 138. 
 See Actions ; Li<3hts, &c. ; Sales, &o. 
 
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INDEX. 465 
 
 TRADE, 
 
 going, not ordinarily stopped, 53. 
 See Business — Trades. 
 
 TRADE MARKS, 
 
 to prevent infringement of, jurisdiction of Equity ordinarily in aid of legal 
 right, 164 ; no independent jurisdiction, 164 ; foundation of jurisdiction to 
 restrain infringement of, 176 ; when Equity does and when it does not inter- 
 fere before trial of legal, 164, 165, 166 ; what required to obtain interference 
 of Court, 177 ; injunction to restrain use of particular style or title, 165 ; 
 effect of misrepresentation, 165, 177 ; assumption of name, 166 ; name 
 established as a, 171 ; doctrines as to a name, 173, 174, 175, 178, 179 ; 
 initials of first manufacturers, 178 ; no protection of name fixed upon by 
 patentee, 179 ; no injunction unless deception, or probability of, or the 
 act calculated to deceive, 166 ; the right to, defined, 166 ; the principle, 
 in cases of, stated, 166, 167 ; what required to accomplish fraud of in- 
 fringing, 166, 167; grounds of protection of, 167, 171, J 72; classes of 
 cases which come before Courts, 167, 168 ; difference in copy and plaintiff's 
 mark as a trade mark, nominal, and evidence of right unsatisfactory, 168 ; 
 difference between Law and Equity as to use of, 169 ; where assignee of, 
 not entitled to protection, 169 ;■ advertisement of, stating what not true, 
 169 ; use of, by new partners or successors, 169 ; statements in, 169, 170 ; 
 increased value of goods from personal skill, &c., of adopter of, 170 ; no, 
 in gross, 170; representations as to connection with firm of ^established 
 reputation, 170; inscription amounting to representation of succession to 
 business of late firm, 170 ; what necessary as to the imitation, to entitle to 
 relief, 170, 171 ; in colourable imitations of, Court considers whether public 
 probably deceived, not whether manufacturers, 171 ; where not actually 
 copied, fraud necessary element, 172; manufacturing and selling articles 
 after expiration of patent, 172, 173 ; where slight differences, no protection of 
 imitation of, from injunction, 172 ; what required to obtain injunction, 172, 
 173, 175 ; if use of, is likely to deceive, no evidence of actual deception 
 required, 173, 177 ; what proper remedy at Law, and what to prove there, 
 173 ; difference in Equity, 173 ; what necessary to entitle to account of 
 profits, 173, 177 ; where knowing systematic fraudulent trade and short 
 weight, no protection, 173, 174; where, strong resemblance in matter, 
 colours, and arrangement, 174 ; considerations as to resemblances and dif- 
 ferences, 174 ; time defendant has used, effect of, 175 ; person appro- 
 priating to himself particular label, sign, or trade mark, entitled to pro- 
 tection, what enjoined, 175 ; element of right of property in, stated, 176 ; 
 jurisdiction of Equity to restrain infringement of, is founded on invasion 
 of right of property, 176 ; and not on fraud upon public, 176 ; property is 
 the true ground of jurisdiction in Equity, 178 ; probable essential ingre- 
 dients for constituting the right to property in, 176 ; no exclusive owner- 
 ship of symbols constituting, 176j 178 ; knowledge that another party 
 has acquired property in, not necessary, 176 ; but if used in ignorance, no 
 account, or compensation, except as to user after knowledge, 177 ; know- 
 ledge of buyers that goods not of plaintiffs manufacture, not deprive plain- 
 tiff of remedy, 177 ; what enough to shew, 177 ; manufacturer adopting, 
 to designate particular article as made by him, nature of his right in 
 Equity, 177 ; party knowingly printing labels in imitation of plaintiff's 
 
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466 INDEX. 
 
 TRADE UAUKS— continued. 
 
 trade mark and selling them to any one, 177 ; the word " trade-mark '' 
 defined, 178 ; exclusive right to use symbols constituting 'a, is rightly 
 called property, 178 ; effect of dismissing a foiTaer bill, 179 ; still entitled 
 to restrain selling similar article as the " original," 179 ; innocently using, 
 179 ; innocently selling goods hearing spurious, restrained, 179 ; but no 
 account of profits during time of ignorance of prior ownership, 179 ; owners 
 of, are entitled to discovery from shipper of names of consignors of goods 
 bearing counterfeits of, 179, 180 ; manufacturer stamping article with, at 
 order of another, not owner of, 180 ; a word originally a, may become 
 puhlici juris, 180 ; becoming pvhlici jv/ris as between wholesale dealer 
 and retailer, may not be so, as between retail dealer and public, 180 
 English adjective descriptive of quality, use of, not restrained, 180 
 foreign word may be used as, 180 ; passes on sale of business, 180 
 effect of obtaining decree restraining use of, and direction for inquiry as 
 to damage, and not proving any direct damage, 180 ; effect of delay in 
 filing bill, 180, 181 ; and on appeal from interlocutory order, 181 ; where 
 Court will not impute laches, 181. 
 See Patents. 
 
 TREASURY, LORDS OF : See Coepokations, Quasi, Aggkegatb. 
 
 TREES, 
 
 cutting down, alleged extremely ornamental, 220. 
 See Trespass. 
 
 TRESPASS, 
 
 continuing, entitles to injunction, 64 ; and so of continuing nuisances, 65 ; 
 and in nature of mandatory, 64 ; action of, not restrained where partition 
 suit, 65 ; trespass under colour of title, where mischief irreparable, 218 ; 
 where trespass in which damages inadequate arid uncertain remedy, and 
 protection of right in specie required to do complete justice, 218; by 
 stranger, continuance irreparable damage to persons in possession, man- 
 datory injunction, 218; common trespass when interference and when 
 not, 218 ; when injunction granted to restrain, when not, 218, 219 ; in- 
 junction to restrain, and annoyance to tenants, against pauper, 219; 
 trivial trespass, no interference, 219; jurisdiction by injunction with 
 reference to legal rights, stated, 219 ; Equity enjoins in matters of, where 
 irreparable damage, 219 ; restrained on principle of avoiding multiplicity 
 of suits, 219 ; as where lord encloses part of common and tenants throw 
 open inclosure, 219 ; action of, against a company, not restrained on ground 
 of lying by and resting on legal rights, 219 ; course of Court if plaintiff 
 in such case file a bill to restrain, upon alleged breach of injunction, 220 ; 
 alleged trespass by cutting down trees, although title disputed, restrained 
 where allegation trees extremely ornamental, &c., 220. 
 See Corporations, Quasi, Aggregate ; Ecclesiastical Matters, &c., 
 Waste. 
 
 TRIBUNALS, SPECIAL, 
 
 no interference with— unless as to a person affected by a trust or fraud, 25. 
 TRUST, 
 
 time no sanction to breaches of, 45 ; acts violating, restrained, 45 ; usin" &c. 
 
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INDEX. 467 
 
 TRUST— continued. 
 
 copies of private professional memoranda, restrained, ground breach of, and 
 confidence, 46 ; trusts of voluntary deed in favour of creditors, deed not 
 enforced, 46 ; where advantages gained by breach of, principal ingredient 
 stated, 189 ; trusts created for an illegal purpose, 242 ; when they fail to 
 take effect, 242. 
 See Administrator, &c. ; Authors, &c. ; Bankruptcy ; Charities ; Com- 
 panies, &c. ; Creditors, &c. ; Easements ; Ecclesiastical Matters, 
 &c. ; Ejectment ; Judgments ; Mortgages ; Municipal Corporations ; 
 Publication; Sales; Secret; Trustees. 
 
 TRUSTEES, 
 
 when, prevented selling, 45 ; must use powers for legitimate purpose, 45 ; ap- 
 pointed with intention to commit fraud on trust, restrained recovering 
 trust premises, 46 ; restrained excluding owner from entering, &o., pro- 
 perty, 46 ; having no power of sale, restrained selling, 46 ; not answerable 
 for innocent mistake where no advantage, 46 ; of land, restrained parting 
 with it, 47 ; restrained removing trust fund from reach of Court, 47 ; of 
 money, not to ascertain at own expense, &c., unascertained class, 47 ; exer- 
 cising powers of sale, 138 ; must not make profit, 199. 
 
 See Account; Bankruptcy; Cestui que Trust; Charities; Corpora- 
 tions, Quasi, Aggregate ; E j^ictment ; Set-off ; Settlements ; Ship- 
 ping, &c. ; Trust ; Waste. 
 
 TEUSTBES OP TURNPIKE ROAD: .See Corporations, Quasi, Aggregate. 
 
 U. 
 
 UNCONSCIONABLE BARGAINS, 
 
 relief against, 41 ; jurisdiction not affected by repeal of usury laws, &c., 
 49 ; nor doctrines as to relief of expectant heirs, remaindermen, rever- 
 sioners, &c., 49, 50 ; money lenders upon, restrained, 50 ; relief against 
 demands founded on, and contracts, 189. 
 
 See Bonds. 
 
 UNDUE INFLUENCE, 
 
 interference where, 47; where relation of special confidence, what donee 
 must shew, 47, 48 ; gift under delusion set aside, 47. 
 
 See Barrister, &o. ; Bills op Exchange ; Bonds ; Ejectment ; Promis- 
 sory Notes ; Solicitor, &c. 
 
 V. 
 
 VENDOR AND PURCHASER— SPECIFIC PERFORMANCE, • 
 
 though concurrent remedy in damages, specific performance not refused, 133 ; 
 or negotiation for compensation has failed, 133 ; mistake in subject-matter 
 of contract, no injunction or right to specific performance, 133 ; vendor 
 cannot restrain purchaser from buying another estate, 133 ; no injunction 
 in respect of subject-matter of contract, until title accepted, 133 ; in suit 
 for specific performance, action to recover deposit restrained, 133 ; when 
 tenant entitled to specific performance of agreement to grant lease, 133 ; 
 
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468 INDEX. 
 
 VENDOR AND PUECHASEE— SPECIPIO TERFOBMA'SG^—eoniinued. 
 when, of parol agreement, 134; original agreement subsequently varied, 
 134 ; agreement by original lessor with intended sub-lessee to grant such 
 a lease as original lessee entitled to, 134 ; where terms of contract such 
 that Court cannot superintend, 134; where on non-performance by plaintiff 
 both parties cannot have equal justice, 134; splitting contract into inde- 
 pendent portions and enforcing negative part, 134, 135 ; negative terms, 
 grounds of enforcing, 135 ; no restraining violation of defendant's part of 
 agreement, where specific performance by plaintiff of his part not enforce- 
 able, 135 ; terms not enforceable against plaintiff, no restoration of defendant 
 to former position, 135 ; no restraining violation of agreement where there 
 can be no specific perfoimance, 135 ; defendant not restrained violating 
 agreement, where defendant not compellable to perform, 135 ; no protec- 
 tion of subject-matter of contract, unless plaintiff entitled to specific 
 performance, 135; principal portion of agreement incapable of specific 
 enforcement, entire agreement broken, negative clause merely ingidental 
 to the general relief, 136 ; considerations on granting or refusing injunction 
 to restrain particular clause of agreement, 136 ; question to be decided at 
 hearing, upon which depends specific performance, injunction in aid of bill, 
 137, 139 ; when on bill for specific performance, Court restrains dealing 
 with property, when not, 138 ; restraining re-sale, where right to specific 
 performance, 139; where claim for specific performance doubtful, 139; 
 where specific performance cannot be decreed as against plaintiff, 139 ; in 
 • enforcing specific performance, jurisdiction discretionary, what guided by, 
 140 ; where no injunction against sale of goods or chattels, 204 ; violation 
 of agreement or contract for exclusive right of sale and exhibition of spe- 
 cific goods, restrained, 204 ; no injunction to enforce contract for an agency, 
 nor performance of contract for, compelled, 204 ; no specific performance 
 of contract by piecemeal, 204 ; or where terms too indefinite, 204 ; where 
 agreement by defendant going to root of whole agreement, defendant and 
 plaintiff failing to perform their parts, 204 ; as to actions at Law where suit 
 for specific performance, 376 ; when offer to sell land binding, 376 ; action 
 for purchase-money restrained, if description in particulars calculated 
 grossly to deceive, &c., 376 ; notice by vendor of intention to re-sell, effect 
 of, 376, 377 ; where evidence of abandonment of contract by vendor, from 
 delay, 377 ; as to paying deposit into Court in suit for specific performance 
 by vendor where he retains possession, 377 ; as to action in such case to 
 recover deposit, 377 ; where vendor insists on completion in a mode not 
 justified, 377 ; as to actions for damages, deposit-money, purchase-money, 
 376, 377 ; where agreement to hold for two years with option of purchasing, 
 terms of restraining ejectment upon bill for specific performance by tenant, ' 
 377 ; result where vendor duly annuls contract, 377 ; effect of action in 
 respect of portion of contract, as to setting up waiver of contract in suit 
 by other party, 377. 
 See Agreement ; Awards ; Bankruptcy ; Companies, &o. ; Contract ; 
 Covenant ; Creditor, &c ; Ejectment ; Husband and Wife ; Light, 
 &c. ; Mortgages ; Peincipal and Agent ; Eailwat CoMPANiBS ; Set- 
 tlements. 
 
 VERDICTS, 
 
 when Equity relieves against, when not, 398, 399. 
 
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INDEX. 469 
 
 VESTEY : See Cokpoeations, Quasi, Aqgeeqate. 
 VILLAGE GBEEN : See Common. 
 VISITOR : See Ecclesiastical Matters, &c. 
 
 W. 
 
 WAGGONS, 
 
 as to loading and unloading, to hindrance of right of way, 214. 
 
 WAIVER : See Ejectment ; Vendor and Pceohaser, &c. 
 
 WARDS OP COURT, 
 
 power of Equity with reference to, 277 ; where party is attempting to 
 contract a marriage with ward, 278 ; where marriage contracted with, 
 without consent of Court, 278. 
 See Parent and Child, &c. 
 
 WASTE, 
 
 by copyholder, restrained, 81 ; general doctrine as to restraining trespass, 109 ; 
 old distinction between waste and trespass, breaking down, 109 ; defendant 
 in possession, 109, 110; plaintiff in possession, 109, 110; merely alleging 
 legal title, 110; propositions as to interference to appoint receiver and 
 restrain, 110, 111 ; when doubtful whether acts are, 111 ; trivial, 111 ; 
 proceeding dilatory. 111 ; small degree of, shevring intent to do more, 
 111 ; lessee committing, for which damages nominal. 111 ; prospective 
 injury. 111 ; exercise of jurisdiction to restrain, 112 ; thbugh denial of 
 title, irreparable, restrained, 112 ; difference where privity of estate, and 
 where not, 112 ; trustees with discretionary power of felling timber, 
 tenant for life sans, &c., 112, 114 ; tenant for life, 112, 113, 114 ; trustees, 
 equitable tenant for life, 113 ; tenant for life, trustee of remainder in fee, 
 113 ; tenant for life in a term sans, &c., 114 ; tenant for life entitled to 
 timber for repairs, selling timber to reimburse expenses of repairs, 114 ; 
 equitable, application of doctrine of, 121 ; result of application of, 124 ; 
 when restrained, 121, 122, 123, 124 ; what constitutes equitable, 121, 
 122 ; when proceedings for, 121, 122, 124 ; assignees of bankrupt tenant 
 for life sans, &c., restrained cutting ornamental timber, 122 ; course as 
 to money arising from sale by, 122 ; equitable, by tenant for life is breach 
 of trust, 123 ; tenant for life committing equitable, reversioner, 123 ; 
 trustees, duty of, to beneficiaries as to equitable, 123 ; difference, upon 
 restricting legal power in equitable, where a trust, and where not, 
 123, 124; extent of injunction against equitable, 124; equitable, by 
 tenant for life sans, &c., restrained, 114, 115; tenant for life, with 
 liberty to cut timber, restrained from equitable, 115; tenant for life 
 may restrain legal and equitable, 115 ; tenant for life having no ritrht 
 to trees, 115; lessee for lives renewable for ever, 115, 116; tenant 
 lessee, 115; meliorating waste, 116; sub-tenant, immediate landlord, 
 116 ; assignee of sub-lessee for term of lives renewable for ever, con- 
 verting premises to cemetery, 116 ; mortgagor, mortgagee, 116 ; tending 
 to injure security, 116; judgment creditor, heir and administrator of 
 debtor, 116, 117; tenant for life in collusion with owner of first estate of 
 inheritance, or uniting both characters, 117; trustees to preserve con- 
 
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470 INDEX. 
 
 yfASIE— continued. 
 
 tingent remainders, 117, 120; tenant for life and remainderman in fee 
 subject to contingent estates, committing, in collusion, 117 ; tenant for life 
 having next vested estate of inheritance in remainder, subject to inter- 
 mediate contingent estates, 117 ; executory devise over, 117 ; heir entitled 
 by way of resulting trust, until determination of an event upon which 
 future contingent estates are to arise, 117 ; tenant for years, 118 ; tenant 
 from year to year, 118 ; relation of landlord and tenant, on property not 
 part of demised premises, 118; under-lessee and ground landlord, 118; 
 assignee of lease and landlord, 118 ; reversioner, 118 ; devisee, heir-at-law 
 in possession, 118; tenants in common, 118, 119; partition suit, 119; 
 jointress, 119 ; under-tenant of jointress for sixty years, if she should live 
 so long, 119 ; tenant in tail, 119, 120 ; tenant in tail after possibility, &c., 
 119, 120 ; jointress tenant in tail after possibility, &c., 120 ; tenant for 
 life, remainder for life, remainder in fee, 120 ; first tenant for life, second 
 without impeachment, &c., 120 ; cuttmg timber, terms of restraining, 121; 
 account for, 121 ; bills to restrain, must waive penalties, &c., 121 ; rector, 
 parson, vicar, 124, 125 ; prebendary, 125 ; patron, ordinary, bishop, in- 
 cumbent and patron. Crown patron of bishoprics, 125, 126 ; widow of 
 rector, 126 ; lessee of bishop, successor of lessor, 126 ; to whom timber 
 cut belongs, 126 ; who has power over mines, 126 ; to what tenant for 
 life is entitled, and what not, 126 ; tenant for life as to money arising 
 from sale, 126 ; decaying or overcrowding timber, 126 ; ripe, 126 ; produce 
 of sale of timber cut by tenant for life having vested remainder in fee, 
 contingent estates in expectancy, 127 ; account of, bill for, against tenant's 
 executors, 127 ; executors restrained committing, 127 ; devisee for life, 
 devisee in fee in remainder, where debts incumbering estate, 127. 
 See Mines ; Moktgages ; Tebspass. 
 
 WATER, 
 
 right to use, and in, stated, 66, 68 ; what to be shewn to establish claim to 
 use, 67 ; may restrain fouling without shewing actually injurious, 67 ; 
 though polluted, can restrain further pollution, 68 ; conditions to induce 
 Court to restrain infringement of right by long user of, for works, stated, 
 68, 69 ; subterranean, landowner not in general restrained drawing of, 69 ; 
 but restrained drawing of, flowing in surface channel through adjoining 
 land, 69 ; right to flow of, along artificial culvert or pipe from one 
 property to another, protected, 69. 
 See Nuisance. 
 
 WATEECOUESB, 
 
 working mines under, when restrained, 68 ; pending proceedings to try right 
 to, parties restrained taking law into hands, 70. 
 
 WATERWORKS COMPANIES, 
 
 when restrained laying down pipes, fouling stream, 347 ; restrained exe- 
 cuting works so as to produce injury not authoiized by parliamentary 
 powers, 347 ; as to abstraction of water by, from stream, whereby flow 
 of water diminished with reference to riparian owner, &c., below, 348 ; 
 restrained diverting stream without paying compensation for, &c., 348. 
 See Covenant. 
 
 WAY, EIGHT OF : See Eight of Way. 
 
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INDEX. 471 
 
 WELL, 
 
 when owner of adjoining property restrained polluting water coming through ' 
 his property to, 70; jwe as to diminishing supply of, to old well, by 
 neighbour's, new one, 70. wcu, uy 
 
 See Covenant. 
 
 \WIDOW : See Husband and Wife. 
 WILLS, 
 
 when Court restrains party from disputing, 24; Court of Equity no juris- 
 diction to try validity of, 255 ; where two claimants under different, and 
 action against tenant by one, 395. 
 See Heir, &c. ; Intebpleadbr ; Pbobatb. 
 
 tONDON : PBINTED BT WILLIAM CLOWES AND SONS, STAMPUKD STEEBT 
 AND CHARING CROSS^ 
 
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