Special Injunctions. Court will legal title, except in a case of fraud. appoint a receiver against the legal title, and requires not only satisfactory proof upon affidavit, that at the hearing the party would be turned out of not interpose possession, but also some imminent danger to the against the intermediate rents and profits, if possession should not be taken, under the care of the court (a). However, though applications for receivers have been frequently refused in these cases (b), yet on many occasions, either upon consent (c), or upon circumstances of fraud (d), or where a defendant absconds to avoid being served with process (e), the motion has been granted before answer. Other cases in which a receiver has been appointed There are also a few other cases in which, under similar circumstances, the court has appointed a receiver upon motion. Thus, where upon a creditor's bill, it appears by the answer that real estate must be responsible, a receiver will be appointed (f). In a prior case, even before the time for answering was out, a tenant in common in possession was ordered to give security for payment of the proportion of the rents to his co-tenants, or in default, that a receiver should be appointed; but it is said, that for this purpose, the circumstances must amount to a (a) 16 Ves. 70. (b) Mordaunt v. Hooper, Amb. 311. Price v. Williams, 1 Ves. jun. 401. Hugonin v. Bazeley, 13 Ves. 105. Lloyd v. Passingham, 16 Ves. 59. and afterwards upon the effect of the evidence taken in the cause, 3 Meriv. 697. (c) Brodie v. Barry, 3 Meriv. 695. (d) Compton v. Bearcroft, cit, 2 Bro. C. C. 157. Vann v. Barnett, ib. Duckworth v. Trafford, 18 Ves. 283. (e) Macguire v. Allen, 1 Ba. & Be. 75. case of exclusion of the co-tenant (a). In a recent Special Incase, where a term had been directed to be sold for junctions. the purpose of raising portions, and a tenant for life refused to produce the title-deeds, a receiver was appointed upon motion (b). It has been observed by Lord Eldon, that wherever the court has refused this motion, it has turned upon the circumstance that the party applying could not state that he had, strictly speaking, an equitable title: where he can show in substance that he had an equitable title, the motion will be granted. Accordingly, in the case before him, his lordship granted a motion for a receiver, before answer, upon a bill of a purchaser pendente lite; the suit having been instituted by the wife of the vendor, claiming under a settlement voluntary as being after marriage (c). possession. The court has not in any instance put a receiver Receiver upon a mortgagee in possession, provided he could where mortswear that any thing was due to him (d); but where gagee is in a mortgagee has not kept any account, the court would probably grant an injunction (e). It has been said, that a receiver cannot be appointed unless the mortgagee is before the court (ƒ). But in a case before Lord Alvanley (g), Sir H. Dashwood, who had charged his estates to a considerable amount, (a) Street v. Anderton, 4 Bro. C. C. 414. Evelyn v. Evelyn, 1 Dick. 800. Milbank v. Revett, 2 Meriv. 405. (b) Brigstoke v. Mansel, 3 Mad. Rep. 47. (c) Metcalfe v. Pulvertoft, 1 V. & B. 180. (d) Quarrell v. Beckford, 13 Ves. 377. (e) Codrington v. Parker, 16 Ves. 469. (f) Price v. Williams, Coop. 31. Vide also Phipps v. Bishop of Bath and Wells, 2 Dick. 608. (g) Dalmer v. Dashwood, 2 Cox, 378. X Special Injunctions. Partner restrained from intermeddling with partnership effects. appointed Walker his steward or receiver of all his estates, with directions to pay the interest to the mortgagees, and the surplus of the rents to himself. He afterwards granted several annuities, representing the estate to be free from incumbrances, and charged them on the mortgaged premises. On a bill filed by the annuitants against Sir H. Dashwood and Walker, to which the prior incumbrancers were not parties, an injunction was granted to restrain Walker from paying any part of the rents to Sir H. Dashwood, and a receiver was appointed, without prejudice to the prior mortgagees taking possession: where the mortgagee is not in possession, the court will appoint a receiver, without prejudice to the right of the mortgagee to obtain possession (a). A court of equity will frequently interpose by injunction, to restrain a partner from intermeddling with the partnership effects, accepting or negotiating bills in the name of the partnership, &c. and, if necessary, appoint a receiver (b); but there are cases in which an injunction will be granted, although a receiver is refused (c). This will not be done merely on the ground of there being a dissolution of the partnership; it will be granted wherever there is a violation of duty in the partner, or a breach of contract (d). (a) Bryan v. Cormick, 1 Cox, 422. (6) Williams v. Bingley, cit. 2 Vern. 278. n. Philips v. Atkinson, 2 Bro. C. C. 272. Read v. Bowers, 4 Bro. C. C. 440. Peacock v. Peacock, 16 Ves. 49. (c) Hartz v. Schrader, 8 Ves. 317. (d) Harding v. Glover, 18 Ves. 281. Charlton v. Poulter, 19 Ves. 148. n. The principle upon which a court of equity inter- Special Inposes in this mode between partners, is merely with junctions. a view to the relief, by winding up and disposing of the concern, and dividing the produce: it will not lend itself to the purpose of carrying on the concern. The court refused upon any other principle to grant an injunction, and appoint a manager in the Operahouse case (a). The court is, however, cautious (even when ancillary to a dissolution) in granting this relief: accordingly, under a bill by some partners in a joint concern, on behalf of themselves and the others, three hundred in number, for a dissolution, receiver, &c. and an account, alleging mismanagement by the managers; the court refused to interfere by injunction, and the appointment of a receiver in the first instance, until the parties had tried the means of redress provided by the articles (b). strained from Mr. Wooddeson has preserved a note of a remark- Partner reable case, where the court seems to have qualified dissolving the right of a partner to dissolve the partnership. partnership. "An application," he observes, "was made some years ago to the Court of Chancery, for an injunction to inhibit the defendants from dissolving a commercial partnership; the other side proposed to defer it, as not having had time to answer the -affidavits; but it was insisted that this was in the nature of an injunction to stay waste, and that irre (a) Waters v. Taylor, 15 Ves. 10. Upon the same principle it was determined that there could be no relief upon a bill by one partner against another, which did not pray a dissolution. Forman v. Homfray, 2 V. & B. 329. (b) Carlen v. Drury, 1 V. & B. 154. Special Injunctions. Injunctions parable damage might ensue. At length the court deferred it, the defendants undertaking not to do any thing prejudicial in the mean time; but no doubt arose as to the general propriety of the application (a)." The doctrine upon the subject of injunctions, in to restrain a the nature of specific performance, granted to restrain breach of covenant. the violation of covenants, has already been noticed; 1st, in considering those cases where a tenant holding under an agreement for a lease, and consequently having a right to a specific performance of that agreement, has been considered entitled to an injunction to restrain the landlord from proceeding against him in ejectment (b); and 2dly, among those cases where a tenant has been restrained from acts, in which, though in the nature of waste, a court of equity has interposed, upon the principle that the commission of them would be a violation of covenant, attended with immediate damage to the plaintiff. It remains to notice a few cases which could not conveniently be comprized under either of those heads. The first case upon this subject, was one in which the plaintiffs, whose house was so near the church that the five o'clock bell in the morning disturbed them, had come to an agreement with the parish officers, that in consideration of their erecting a cupola and clock, the five o'clock bell should not be (a) Chavany v. Van Sommer, 11 Geo. 3. Wood Lec. Vol. 3. 416. n. Mr. Swanston, in a note to the late case of Crawshay v. Maule, which is full of the most rare and valuable learning upon the subject of partnership, has given the entries of this case in the Register's book. 1 Swa. 512. (b) Ante, p. 23. et seq. |