of poems represented to be the work of Lord Byron, Practice in the plaintiff being abroad, an injunction was granted Equity. upon the affidavit of his agents, notice having been Affidavit of given to the defendant, who refused to swear as to plaintiff's his belief to the contrary (a). agents admitted, on notice, where refused to swear to the contrary. The court sometimes, upon inspection and com- defendant parison of the works of the plaintiff and defendant, continues or dissolves the injunction (b). But the usual practice is to refer it to the Master, to see if Reference to the books are the same, or whether they differ in any, and what respect (c). Master. Where a publication is of such a nature that an No decree where pubaction could not be maintained upon it, the court lication of an will not decree an account even upon a submission improper in the answer (d). It rarely happens that a suit to restrain the violation of copyright and for an account of the profits is brought to a hearing. The plaintiff is generally satisfied with having the injunction continued, and it becomes unimportant to seek for an account of the profits. The late case of Whittingham v. Wooler was considered as being the first instance of a cause of this nature having been actually brought to hearing. The bill was dismissed with costs (e). (a) Lord Byron v. Johnston, 2 Meriv. 29. (b) Carnan v. Bowles, 2 Bro. C. C. 80. The order there made for referring the publications to the Master being reversed by Lord Thurlow, (5 Ves. 25.) Cary v. Faden, 5 Ves. 24. (c) Jeffery v. Bowles, 1 Dick. 429. v. Leadbetter, 4 Ves: 681. Trusler v. Comyns, cit. ib. (d) Walcot v. Walker, 7 Ves. 1. Southey v. Sherwood, 2 Meriv. 435. (e) 4th December, 1817, the case of Manby v. Owen, ante, 272, was brought to a hearing. nature. U Special CHAPTER XIV. Of Special Injunctions and of Interlocutory Orders in the Nature of Injunctions. IT has been already observed, that wherever a plaintiff appears entitled to equitable relief, if it consists in restraining the commission, or the continuance of some act of the defendant, a court of equity administers that relief by injunction. In the several cases which have been already treated of, this jurisdiction is enforced by means of the process of the writ of injunction. But as the known forms of that remedy are by no means adapted to every case in which the court has jurisdiction to interpose, the prohibition has in numerous cases been issued and conveyed in the shape merely of an order in the nature of an injunction; and as the court treats the neglect or disobedience of all orders as a contempt, and enforces the performance of them by imprisonment, the object sought is equally attained by an order of this nature as by a writ. The distinction is consequently disregarded in practice, and these orders, though not enforced by means of the writ of injunction, have indiscriminately obtained the name of Injunctions. The present chapter will contain the various cases in which this species of relief has been administered by means either of Special Injunctions upon writ, or of Interlocutory Orders in the nature of injunc- Special tions. Injunctions. estate. A court of equity will, if necessary, restrain the Sale of sale of an estate: thus where a parol agreement to exchange estates, had been partly performed by the defendant, and it was sworn that the defendant's estate was actually advertised for sale, an injunction was granted to restrain the sale on an ex parte application, upon certificate of bill filed and affidavit, although it was objected that the plaintiff might appear at the sale and give notice of his claim (a). There is a prior case indeed where the Court of Exchequer refused to interpose in this manner, but the circumstances are somewhat different. The plaintiff had conveyed his estate to the defendants, in trust to sell, and it appeared upon the motion that the defendants had advertised the premises for sale; that the notice of the intended sale was shorter than usual, and several circumstances were stated to show that the plaintiff would sustain great loss if the sale, which was to be the following day, took place. The injunction, however, was refused, and it was said not to be one of those cases in which, on the ground of irreparable injury to the plaintiff, the court proceeds in so summary a way: that if the trustees should be guilty of a breach of trust, in making the proposed sale, they would be answerable to the plaintiff for the damages sustained (b). An order has been made to restrain a vendor, de- Conveyance (a) Curtis v. Marquis of Buckingham, 3 V. & B. 168. (b) Pechel v. Fowler, 2 Anst. 519. of legal estate. Special Purchaser restrained purchase money. fendant to a bill for a specific performance of an agreement for sale of an estate, from conveying the legal estate in the premises, on the ground that the plaintiff might thus be put to expense by the necessity of making another party, when the cause might be just ready for hearing (a). Upon a bill by creditors against the executor, from paying heir, and purchaser of a real estate, charged with payment of debts, an injunction was granted to restrain the purchaser from paying the purchase money to the heir, upon whom the estate had descended (b). Upon the same ground it is also probable that a purchaser would be restrained from paying the purchase money to a devisee. It being established that the statute of fraudulent devises has placed the heir and devisee in the same situation; making them personally responsible after alienation of the estate, and discharging bona fide purchasers under them from liability (c). Negotiation of bill of exchange. Where a negotiable security has been given for an illegal consideration, or where, for any other reason, the holder is not entitled to negotiate it (d), the court will grant an injunction to restrain its indorsement or negotiation. This order has been even granted in a case where an injunction to restrain the holder from proceeding at law had been refused (e). And as the plaintiff, if the holder were negotiate it, could, in many cases, make no de (a) Echliff v. Baldwin, 16 Ves. 267. (b) Green v. Lowes, 3 Bro. C. C. 217. fence in the hands of a bona fide holder, the court Special views the case in the nature of a bill to restrain ir- Injunctions. reparable mischief, and accordingly an injunction is frequently granted on certificate of bill filed, and (till the practice in that respect was amended (a)) before service of the subpoena (b). The case is however different from that of waste, in the circumstance that affidavits will not be permitted to be read in contradiction to the answer (c). of certificate An injunction has in like manner been granted to Indorsement prevent an indorsement, on the certificate of the re- of registry of gistry of a ship (d). ship. stock. The court also grants injunctions to restrain the Transfer of transfer of stock, or the receipt of bank annuities (e). Thus an injunction was granted to restrain a transfer of stock, standing in the name of a steward, upon strong evidence by affidavit, that it was the produce of his master's property; though it was refused as to money standing in his name at his bankers. This motion was granted in a great measure upon the equity, that a person confounding funds of another with his own, will be liable to the whole extent (ƒ). (a) Post, Chapter XIV. (b) Smith v. Aykwell, sup. Patrick v. Harrison, 3 Bro. C. C. 476. v. Blackwood, 3 Anst. 851. (c) Berkeley v. Brymer, 9 Ves. 355. (d) Thompson v. Smith, 1 Mad. Rep. 395. (e) Terry v. Harrison, Bunb. 289. See more upon this subject, post, p. 301. (f) Lord Chedworth v. Edwards, 8 Ves. 46. It is said that in a subsequent case Lord Eldon had, upon consultation with Lord Ellenborough, thought that he had gone too far. Cox v. Paxton, 2 Mad. Ch. 2d ed. 155. |