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TREATISE

ON THE

LAW OF INJUNCTIONS.

CHAPTER I.

Of INJUNCTIONs in General.

An Injunction is a writ, issuing by the order and under the seal of a court of equity, and is of two kinds: the one is the Writ Remediúl, amongst the most ordinary objects of which the following may be enumerated: To stay proceedings in courts of law, in the spiritual courts, the courts of admiralty, or in some other court of equity: to restrain the indorsement or negotiation of notes and bills of exchange, the sale of land, the sailing of a ship, the transfer of stock, or the alienation of a specific chattel ; to prevent the wasting of assets or other property pending litigation, to restrain a trustee from assigning the legal estate, from setting up a term of

years, or assignees from making a dividend; to prevent the removing out of the jurisdiction, marrying, or having any intercourse which the court disapproves of, with a ward: to restrain the commission of every species of waste to houses, mines, timber, or any other part of the inheritance; to pre

B

Injunctions vent the infringement of patents, and the violation in general.

of copyright either by publication or theatrical representation; to suppress the continuance of public or private nuisances; and by the various modes of interpleader, restraint upon multiplicity of suits, or quieting possession before the hearing, to stop the progress of vexatious litigation. These however are far from being all the instances in which this species of equitable interposition is obtained. It would indeed be difficult to enumerate them all; for in the endless variety of cases in which a plaintiff is intitled to equitable relief, if that relief consists in restraining the commission or the continuance of some act of the defendant, a court of equity administers it by means of the Writ of Injunction.

The other species of injunction is called the Judicial Writ, and issues subsequent to a decree. It is a direction to yield up, to quiet, or to continue the possession of lands, and is properly described as being in the nature of an execution.

CHAPTER II.

Of INJUNCTIONS to stay Proceedings at Law.In

what cases granted.

Ir frequently happens that a person, in conse- In what cases quence of some circumstance of which judicial granted. .notice can only be taken in a court of equity, has an advantage in proceeding in a court of ordinary jurisdiction, which must make that court an instrument of injustice (a). There are also many cases in which the legal defence to a claim set up at law, rests either exclusively, or in a great degree, within the knowledge of the party advancing the claim, by which means, that defence can only be obtained through the assistance of a court of equity. As it is against conscience therefore that the party should in the one case, make any use of the advantage of which he is thus inequitably possessed, or that he should in the other proceed in the assertion of his claim, without communicating the information; it has become one of the most ordinary modes of equitable interposition to afford relief by Injunctions to stay proceedings at law.

The Writ which issues in these cases has been

(a) Redes. Tr. Chị P. 102.

cause.

In what cases frequently stated to be in the nature of a Prohigranted.

bition : but it differs so essentially from it, that there seems considerable impropriety in the comparison. A Prohibition is a remedy against an encroachment of jurisdiction, issues only from a superior court, is granted on the suggestion that the court to which it is directed has not the legal cognizance of the cause ; and is directed to the judge of the inferior court, as well as to the parties in the

An Injunction on the other hand, where its object is to restrain proceedings in another court, is directed only to the parties; neither assumes any superiority over the court in which they are proceeding, nor denies its jurisdiction; but is granted on the sole ground that from certain equitable circumstances, of which the court that issues it has cognizance, it is against conscience for the party to proceed in the cause.

It will be proper in the consideration of this subject, 1st, To enumerate the cases in which a court of equity interposes, by granting Injunctions to stay proceedings at law: for though it would be irrelevant to enter into a minute discussion of principles and their application, yet a reference to the authorities which contain the grounds upon which this relief is most frequently granted, will probably be found useful; and 2dly, To show by what means such Injunctions are obtained, dissolved, revived, con

tinued to the hearing, and made perpetual. Accident. A very ancient branch of equitable jurisdiction is lost, burnt, or accidentally cancelled (a). Upon this In what cases

that of Accident; the usual instance of which is the relief given where a bond or other security has been

granted. ground an administrator who had committed a devastavit at law by paying legacies, was relieved against a bond which unexpectedly started up, the assets having been originally sufficient, but the greatest part of them, which consisted of houses, having been consumed in the fire of London (6). It has however been determined in contradiction to the first decisions upon the point (c), that there is no equity under this head of accident in favour of the lessee of a house, who is liable to repair, with an exception of damage by fire, for an injunction against an action under the contract for nonpayment of rent upon the destruction of the house by fire (d); and upon

the principle that a purchaser becomes in equity the owner of the premises from the moment of the contract, if the premises are deteriorated by fire or other accident be

(a) Berry o. Style, Latch. 24. Abdee's case, ib. 146. Brightman's case, ib. 148. Anon. 1 Vern. 180. Godfrey v. Turner, ib. 247. Nicholson v. Pattison, ib. 310. Underwood v. Staney, 1 Ch. Ca. 77. Collet v. Jaques, ib. 120. Lightbone v. Warden, 1 Eq. Ab. 92. Whitfield v. Fausset, 1 Ves. 387. Skip v Huey, 3 Atk. 93. Toulmin v. Price, 5 Ves. 238. East India Comp. v. Boddam, 9 Ves. 464. That no relief is given in equity in the case of a lost bill of exchange, &c., vide Walmesley v. Child, 1 Ves. 341. Glyn 0. the Bank of England, 2 Ves. 41. Mossop v. Eadon, 16 Ves. 430.

(6) Croft v. Lyndsey, 2 Freem. 1.

(c) Camden v. Morton, 2 Eden, 219. Brown v. Quilter, ib. S. C. Amb. 619. Steele v. Wright, cit. 1 T. R. 708.

(d) Hare v. Groves, 3 Anst. 687. Holtzappfell v. Baker, 18 Ves. 115. This subject was first discussed by Mr. Fonblanque, in a very able note to the Treatise on Equity (5th edition, vol. 1. 374). The arguments there adduced by him led the court of exchequer to that sound conclusion by which the determinations of Lord Northington and Lord Bathurst were overruled,

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