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on the ground that the trees, cut by the defendant, Practice had been marked by Lord Strathmore, the plaintiff's in
the plaintiffs, in Special
Is Injunctions. first husband; and it would have been a considerable hardship to a man having title, if the court should permit that fact to be tried on one hand by affidavit, and not asserted by affidavit on the other.
Upon the motion being made to dissolve, the Order upon court will either absolutely dissolve the injun
in motion to
Olle dissolve. or continue it to the hearing, or (subject to an account kept in the meantime,) will direct an issue, or an action, or a case for the opinion of a court of law. If the court of law certifies against the plaintiff's title, yet the cause must still proceed to a hearing. In a recent case a motion was made to dismiss the bill with costs, by analogy to the practice on bills for specific performance, where the Master's report is adverse to the plaintiff; the application was however refused (a). If the answer admits that the defendant has com- Where con
tinued to the mitted waste (however trifling it may have been), or hearing. has threatened to commit it, the injunction will be continued till the hearing (6). · It is no objection to the granting or continuing No objection an injunction, that the case is of such a nature, that in their
to an injuncan account cannot be decreed upon it. Whatever there cannot difficulty there may be upon the question, which has bent a been considered in a former page (c), as to the right to an account where there has been no injunction prayed, there is none to the converse of that pro
(a) Brooke v. Clarke, 1 Swanst. 550.
(6) Packington v. Packington, 1 Dick. 101. Attorney General v. Burrows, ib. 128. S. C. Anon. 3 Atk. 485.
(c) Ante, p. 206. et seq.
Practice in Special Injunctions.
position. Lord Eldon, in the case of the Universities of Oxford and Cambridge v. Richardson (a), where this question was agitated, suggested several cases clearly illustrative of this doctrine ; where, either from difficulties arising from the complex nature of the title of several plaintiffs interested in the same account; or from the trifling value of the injury actually committed; or from the circumstance that the evil sought to be restrained, has as yet only been threatened by the defendant, and not commenced; an account could not be taken, though the plaintiff would clearly be entitled to an injunction. It will be observed also, that many of the cases which have been considered in the preceding chapter, where injunctions have been granted, are of such a nature, that an account could not be given in respect of them.
It seems to be established that the court will not, upon motion, direct the defendant to perform an act. There is indeed a passage in one of the MS. reports of the case of Worden v. Ellers, which have been before alluded to (6), from whence it may be inferred to have been Lord Hardwicke's opinion, that the court might, upon motion, order the defendant to pull down a building which was clearly a nuisance to the plaintiff. And there is an early case in Tothill of an order to show cause why a defendant, who had ploughed up ancient pasture land, should not lay it down again in grass (c). The contrary doctrine is, however, firmly decided. In
(a) 6 Ves. 701.705.706.
Court will not, upon
rect an act to be done.
the case of Ryder v. Bentham (a), Lord Hardwicke, Practice upon a motion for an order to pull down certain
down portain in Special
can Injunctions. blinds, observed, that he never knew an order to pull down any thing on motion. Lord Thurlow, in a subsequent case, upon a motion to restrain a party from digging a ditch, and to compel him to put every thing in the same state in which it was before, by filling up so much as he had already dug, refused the latter part of the motion (6). So in a subsequent case Lord Eldon refused an order specifically to repair the banks of a canal, stop-gates, and other works (c).
But though the court will not directly, and in terms, compel the performance of an act upon motion, yet there are many cases, in which the effect may be indirectly obtained, by an order merely restrictive. Thus in the case of Robinson v. Lord Byron the effect was obtained, by the order restraining the defendant, from preventing the water from flowing in such regular quantities as it had ordinarily done before the day on which the alleged nuisance commenced (d). In Lane v. Newdigate a similar effect was obtained by an order, restraining the defendant from impeding the plaintiff from navigating, using, and enjoying, by continuing to keep the canals, banks, or works out of repair, by diverting the water, or preventing it by the use of locks from remaining in the canals, or by continuing the removal of a stop-gate.
(a) i Ves. 543.
Injunctions to quiet possession before the hearing.
CHAPTER XVI. .
Injunctions to restrain vexatious Litigation.
Injunctions The practice of granting Injunctions to quiet the to quiet posa session be- possession before the hearing, was once extremely fore the
common. Hudson relates that in ancient times the hearing.
Star Chamber began every case with an injunction to settle the possession in peace till the cause was determined; of which, he says, there were not fewer than a thousand precedents (a). The earlier books of chancery practice are also full of precedents, in which this course was adopted (b); and an express provision was made, for the regulation of the practice upon this head, by one of Lord Bacon's
ordinances (c). In what The object of this species of motion, was to recases granted.
strain the party against whom the application was made, from taking forcible possession of the premises pending the litigation. This injunction used only to be granted to quiet possession of corporeal here
(a) Treat. on the Star Chamber, 2 Coll. Jurid. 196.
(6) Pulvertost o. Pulvertost, Cary, 52. Sapcote v. Newport, ib. 66. Harrison v. Cholmely, ib. 72. Boult v. Blunt, ib. Lord Baltimore v. Reynell, Toth. 115. Delahay v. Pottenden, ib. 147. Stationers' Company v. Simcox, ib. Lady Poines' case, 1 Vern. 156. Lord Falmouth v. Innis, Mose. 89. Foster v. Saul, ib. Filewood v. Palmer, ib. 171. Baker v. Rogers, Sel. Ca. Ch. 74.
(c) Beames's Orders, 15.
ditaments: an application to extend it to the profits Injunctions of an office has been refused (a).
to quiet pos
session before • To obtain this order, it was required, by analogy the hearing. to the statutes of forcible entry, that the party applying should have had peaceable possession of the premises by the space of three years before the filing of the bill, of which the court required to be satisfied upon oath. The party was also required to swear that his interest was not determined by forfeiture, surrender, or other lawful means; and according to the practice prior to the time of Lord Bacon, a bond was required to be entered into by the party to the amount of £10 as a security, that the information so given was true (6). This species of relief appears to have been granted Granted
either to indiscriminately, either to a plaintiff or a defend. o ant(c). In one case, where the defendant was in defendant. possession at the time the bill was filed, and the plaintiff had entered upon him, the defendant ob'tained an order that either he might have an injunction for possession, or that the plaintiff should show cause, why his bill should not be dismissed (d). In another case, a bill was actually dismissed, because the plaintiff had entered into the lands, while his suit was depending, and thereby made himself his own judge (e). This practice has lately fallen entirely into disuse, Fallen into
England. • (a) Anon. 3 Ch. Rep. 12. Purefoy v. Jones, ib. 39.
(6) 170. Harg. MSS. 228. where a number of early precedents of this species of writ are collected.
(c) Hawkes v. Champion, Cary, 51. Dowche v. Perrot, ib. 63.