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ever, instances in the books not only of injunctions Admiralty to stay proceedings in that court (a), but also the Courts, &c. Court of Wards (6), the Dutchy Court (c), the Mayor's Court (d), the Court of Stannaries (e), and proceedings in the Petty Bag by scire facias or privilege, which are stayed, it is said, not by writ, but by order (f).
It was decided by Lord Clarendon, upon great Foreign consideration, that an injunction did not lie to stay a suit at Leghorn or any other foreign parts (8). The accounts of this determination, which is reported in several of the books, are various: in Freeman it is said to have been made upon the advice of all the judges. In Nelson it is stated, that, though the judges were of opinion against the injunction, all the Barons were of the contrary opinion. The reporter in Chancery Cases takes no notice of the judges having been consulted, but adds a quere to the judgment, observing that the bar were of a contrary opinion. The doctrine is certainly at variance with one of the first principles of a court of equity, which, without regard to the situation of the subject matter in dispute, considers only the equities arising from the acts of the parties, and acting in personam
(a) Aylett v. Aylett, Toth. 114.
(d) Mildred v. Neate, 1 Dick. 279. Barker v. Goodair, 11 Ves. 78. Bristow v. Potts, cit. ib. Rew v. Dixon, 1 Mad. Ch. 137.
(e) Trinick v. Bordfield, Toth. 182.
(f) P.R.C. 202. Vide Hodson v. Earl of Warrington, 3 P.W. 35, where this distinction is not noticed.
(g) Love v. Baker, 1 Ch. Ca. 67. S. C. Nels. 103, nom. Lowe v. Baker, 2 Freem, 125.
will imprison persons disobeying its orders(a). There is a note in the Hargrave MSS. of a motion for an injunction to restrain the proceedings of the younger children of the Earl of Portland in the courts in Holland, for part of their father's personal estate, which they claimed under his marriage settlement, it being contended that a legacy under his will was a satisfaction. The injunction was refused, on the ground of the defendant not being in contempt, and not having prayed time to answer; but no doubt seems to have been entertained upon the jurisdiction, as to which a case of Grey v. the Duke of Hamilton was cited (6). In the case of Wharton v. May (c), it was made part of the decree, that two of the defendants should be restrained from entering up any judgment, or carrying on any action in the court of General Session in Scotland. Since this
(a) Archer . Preston, 1 Eq. Ab. 133. Earl of Arglasse v. Muschamp, 1 Vern. 75. Lord Kildare v. Eustace, ib. 419. Toller, v. Carteret, 2 Vern. 494. 1 Salk. 404. Penn v. Lord Baltimore, cit. ante. Earl of Derby v. Duke of Athol, 1 Ves. 202. Roberdeau v. Rous, 1 Atk. 543. Foster v. Vassal, 3 Atk. 587. Lord Cranstown v. Johnston, 3 Ves. 170. White v. Hall, 12 Ves. 321.
(6) Lord Portland's case, 114. Harg. MSS. 166. There is modern case in which plaintiffs being proceeding both in the court of Chancery and in a court at Amsterdam, having made their election to proceed in the latter; the proceedings in the court of Chancery were stayed, and the plaintiffs directed to pay the costs of their proceedings there subsequent to their election. This order must have been founded
the competency of the court of equity, if not to stay proceedings abroad (in case the plaintiffs had elected to proceed here), at least to refuse to give assistance here unless they abandoned their suit abroad. Pieters v. Thompson, Coop. 294.
(c) 5 Ves. 27.
sheet has gone to press, the author has been informed Foreign
Courts. that a similar order was made, upon motion, in the cause of Kennedy v. Earl of Cassilis.
Though the cases are somewhat at variance, it Special seems to be the better opinion, that the Common In- motion. junction does not extend to stay proceedings in the Spiritual or Admiralty courts, and that an order for that purpose must be moved for specially (a).
(a) Anon. 1 P. W. 301. Bunbury, 27. Barnard. Ch. Rep. 28. Chandler w. Gascoyne, 1 Dick. 281. Macnamara v. Macguire, ib. 223.
What acts are deemed waste,
What Acts are deemed
Of Injunctions to stay Waste.
In treating upon the subject of Waste it will be convenient, 1st, to enumerate shortly those Acts which are deemed waste: 2dly, to consider under what circumstances, and for and against what persons a court of equity interposes to restrain the commission of waste; and, 3dly, to show, as consequential to it, in what manner it compels an account, or directs the application of timber wrongfully cut, or accidentally severed.
The consideration of the Mode in which injunctions to stay waste are obtained and dissolved, will be deferred to the concluding part of this treatise, where the decisions upon the practice of the courts in this and other cases of Special Injunction will be fully noticed.
Waste, which is of two sorts, Voluntary and Permissive, is defined by Lord Coke to be spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disinherison of him that hath the remainder in fee simple or fee tail (a). By the
(a) Co. Lit. 53. a.
feudal law, where feuds were originally granted only What acts
are deemed for life, the commission of waste by the vassal was a waste. cause of deprivation (a). By our common law it was only punishable in three persons :-Guardian in Chivalry, Tenant in Dower, (and though some doubt has been entertained as to the last (b)) Tenant by Curtesy. The statutes of Marlbridge (c) and of Gloucester (d), afterwards extended the protection of the writ of waste, which lay at common law, to Tenants for Life and Tenants for Years (e).
Waste in timber consists in cutting down, lopping,
(a) Craig, 38. Wright, 44. 2 Bl. Com. 282.
(e) A modern author, whose writings are extremely valuable for the extensive research which they evince, has cited a passage from Bracton (Lib. 4. c. 18.) to show that both tenants for life and other farmers were punishable at common law, and that these statutes were only enacted in affirmance of it. (Reeves' Hist. of the English Law, vol. 1. 186. vol. 2. 73, 74. 148. n.) It must be admitted that the citation from Bracton supports the doctrine contended for. This, however, is probably the only passage in any author, where it is so laid down.
On the other side we have the authority of Lord Coke, repeated in several parts of his writings: who has been followed by every author that has treated upon the subject, and every judge who has had occasion to allude to it: we have two statutes at a period when it is highly improbable that the legislature should have passed laws to enact what was already admitted: and if doubts had existed upon the subject, we should either have heard of them from the preambles, or some declaratory language in the statutes themselves, or they would have been noticed by contemporary writers. Lastly, the reason that is always given for this diversity, viz. “ that the estate of the three former was created by the law itself, which, therefore, gave a remedy against them; but that the latter