Special In junctions. having formed an attachment for the foreman, assisted him in publishing a paper with the same name, an injunction was granted upon the application of the executors (a). An injunction was also in a recent case obtained, to restrain the publication of poems, represented to be the work of Lord Byron (b). In the case of Crutwell v. Lye, however (c), an injunction was refused to restrain a person who had sold a trade with the goodwill, from setting up a similar trade; there being no express covenant nor fraud, by representing it as a continuation of the old trade, nor any conduct on the part of the defendant which might create a confidence in others that he would not trade again. An injunction, however, has been granted in one case, to restrain a manufacturer of blacking from using labels in imitation of those employed by the plaintiff (d); in another where the defendant having sold a medicine to the plaintiff, set up another under a similar description, and in his advertisement adopted verses which had been attached to the original medicine (e). But where a person does not assume the name and character of another, he will not be prevented from selling an article under the same title(ƒ); and Lord Hardwicke refused to restrain a defendant from using the Great Mogul as a stamp upon his cards, upon a suggestion that the plaintiff had the (a) Keene v. Harris, cit. 17 Ves. 342. (d) Day v. Day. 1816. (e). Sedon v. Senate, cit. 2 V. & B. 220. (f) Canham v. Jones, 2 V. & B. 218. junctions. funds are in sole right he said he knew no instance of restrain- Special In=\" ing one tradesman from using the same mark as another, and that there was no more objection to it than to an innkeeper setting up the same sign (a). Where persons are authorised by act of parliament Persons digging to cut a canal, and their funds turn out to be in- canal, restrained from sufficient for the completion of the proposed underproceeding taking if the owner of an estate, through which where their the legislature has given to the speculators a right sufficient. to carry the canal, can show that the persons so authorised are unable to complete their work, and is prompt in his application for relief, the court will not permit the further prosecution of that undertaking (b); but where the speculators are not cutting through the lands of the plaintiff, this application would probably fail. An injunction was lately refused to restrain persons authorised by act of parliament to cut a canal (and required to appropriate certain sums for the construction and maintenance of works to protect a harbour, in which the canal was intended to terminate), from cutting through their own lands at a distance from the harbour, there being at the time an insufficiency of funds for the completion of the undertaking, pending an application to parliament for further powers to levy money (c). We may conclude this chapter by noticing a hasty No injunc dictum of Lord Ellenborough's, which has attracted tion to reconsiderable attention. In the case of Du Bost v. (a) Blanchard v. Hill, 2 Atk. 484. (b) Agar v. Regent's Canal Company, cit. 1 Swa. 250. Coop. 77. (c) Mayor and Burgesses of King's Lynn v. Pemberton, 1 Swa. strain libel. Special In- Beresford (a), which was an action for destroying junctions. a picture, that was publicly exhibited, highly defamatory of a gentleman and his wife, who was the defendant's sister; that great judge is reported to have used the following expression: "If it was a libel upon the persons introduced into it, the law cannot consider it valuable as a picture. Upon an application to the Lord Chancellor, he would have granted an injunction against its exhibition, and the plaintiff was both civilly and criminally liable for having exhibited it." This doctrine is stated to have caused at the time considerable astonishment in the minds of all the practitioners of the courts of equity (b); the proposition is, indeed, obviously erroneous. There is, perhaps, but one instance in the books, of any judge having maintained the existence of a power in the Court of Chancery of restraining publications on any other ground, but that of property and copyright; and it was then done in language so strange and unconstitutional, as to carry with it, its own refutation. Upon a motion to restrain the publication of a translation of the Archæologia Sacra, Lord Macclesfield, after noticing that a 'translation was not within the prohibition of the statute of Anne, is reported nevertheless to have said, that this being a book which, to his knowledge (having read it in his study), contained strange 'notions, intended by the author to be concealed from the vulgar, in the Latin language, in which language it could not do much hurt, the learned being better able to judge of it; he thought it pro(a) 2 Camp. 511. (b) 20 How. St. Tr. 799. per to grant an injunction to the printing and pub- Special Inblishing it in English: that he looked upon it that junctions. this court had a superintendency over all books, and might, in a summary way, restrain the printing or publishing any that contained reflections on religion or morality (a). It is remarkable that no mention is made by Hudson of any such preventive jurisdiction, even in the Star Chamber: there is an instance, indeed, in which the court of King's Bench assumed to itself this power, in Charles II.'s time, under Scroggs; but it was so immediately reprobated, as to form afterwards one of the articles of impeachment against him. The court, of which he was the head, actually made, and caused to be served upon the publisher and divers printers, a rule of court prohibiting the printing and publication, by any person whatsoever, of a book entitled "the Weekly Packet of Advice from Rome, or the History of Popery (b).” 1 So little has it even been supposed that such a jurisdiction (if it ever legally existed any where) belonged to the court of Chancery, that it would be difficult to find any authority in which it has been in terms denied. The following observation of Lord Eldon, in the late case of Southey v. Sherwood, is the only trace which the author has been able to discover of any allusion to this notion. In that case his lordship, after noticing the doctrine by which a court of equity refuses an injunction to restrain the publication of works of such a nature as that an (a) Burnett v. Chetwood, 2 Meriv. 441. n. (b) 8 How. St. Tr. 198. Special Injunctions. Orders to stay proceedings pending an appeal. action of damages cannot be maintained for them, proceeded to observe: "It is very true that in some cases it may operate so as to multiply copies of mischievous publications, by the refusal of the court to interfere by restraining them; but to this my answer is, that sitting here as a judge upon a mere question of property, I have nothing to do with the nature of the property, nor with the conduct of the parties, except as it relates to their civil interests; and if the publication be mischievous, either on the part of the author or of the bookseller, it is not my business to interfere with it. In the case now before the court, the application made by the plaintiff is on the ground only of his civil interest, and this is the proper place for such an application (a)." There is a species of interlocutory order that has of late become extremely frequent, which may here be noticed, viz. the order granted upon motion to stay proceedings pending an appeal. In a court of law, a writ of error in a civil action stays all proceedings, upon the ground that the record is, in theory, in the superior court (b). It seems also to have been formerly understood by the House of Lords, that an appeal from a court of equity also stayed all further proceedings; but by a late order of the house, founded on what appeared to have (in contradiction to this notion) become the general practice, it has been settled, that an appeal from a court of equity does not stay execution of the decree (c). It has accordingly become usual for ap |