Chap. III, Balance of it shall adopt, the Court is governed by the consideration as to the comparative mischief or inconvenience to the parties which may arise from granting or withholding the injunc- convenience. tion (r), and will take care so to frame its order as not to deprive either party of the benefit he is entitled to, if in the event it turns out that the party in whose favour the order is made shall be in the wrong (s). In doubtful cases, if it appears, upon the balance of convenience and inconvenience, that greater damage would arise to the defendant by granting the injunction in the event of its turning out afterwards to have been wrongly granted, than to the plaintiff from withholding it in the event of the legal right proving to be in his favour, the injunction will not be granted, but the motion will be ordered to stand over until the hearing. If, on the other hand, it appear that greater damage would arise to the plaintiff by withholding the injunction, in the event of the legal right proving to be in his favour, than to the defendant by granting the injunction, in the event of the injunction proving afterwards to have been wrongly granted, the injunction will issue (t). The burden lies upon the plaintiff, as the person applying for the injunction, of showing that his inconvenience exceeds that of the defendant. He must make out a case of a comparative inconvenience entitling him to the interference of the Court (u). In balancing the comparative convenience or inconvenience from granting or withholding an injunction, the Court will take into consideration what means it has of putting the party who may be ultimately successful in the position he would have stood if his legal rights had not been interfered with (a). C. 737, 739; 45 R. R. 378; Earl of (r) Bacon v. Jones, 4 M. & C. 433, 436; 48 R. R. 143; Hilton v. Lord Granville, Cr. & Ph. 283, 297; Munro v. Wivenhoe, &c., Railway Co., 4 D. J. & S. p. 733; Elmhirst V. Spencer, 2 Mac. & G. p. 50. (8) East Lancashire Railway Co. v. Hattersley, 8 Ha. 93, 94. (t) Greenhalgh v. Manchester and Birmingham Railway Co., 3 M. & C. 773, 799; 45 R. R. 393; Hilton v. Lord Granville, Cr. & Ph. p. 297; Plimpton v. Spiller, 4 Ch. D. 286; Elwes v. Payne, 12 Ch. D. 468 (C. A.); Mitchell v. Henry, 15 Ch. D. p. 191; Newson v. Pender, 27 C. D. 43 (C. A.). (u) Child v. Douglas, 5 D. M. & G. 741, 742. (x) Sanxter v. Foster, Cr. & Ph. Chap. III. the condition of injunction. The Court may often by imposing terms on the one party, as the condition of either granting or withholding the injunction, Terms imposed on defendant as secure the other party from damage in the event of his proving not granting the ultimately to have the legal right. If the Court feels that it can by imposing terms on the defendant secure the plaintiff, in the event of the legal right being determined in his favour, against damage from what may be done by the defendant in the meantime, and the defendant is willing to accede to the terms required by the Court, an injunction will not issue (y). The terms imposed on the defendant as the condition of withholding the injunction vary with the circumstances and the exigencies of the case. The defendant may be required to do such acts, or execute such works, or to remove any works, or otherwise deal with the same as the Court shall direct (2), or to enter into an undertaking to refrain from doing in the meantime the acts complained of by the bill (a), or to abide by any order the Court may make as to damages or otherwise, in the event of the legal right being determined in favour of the plaintiff (b). If the permission to do the act complained of involves the making of profits, the defendant will be required to keep an account of all profits made pending the trial of the right (c); and may also be required to pay such a sum by way of damages (in the event of the plaintiff's right being established) as the Court may direct (d). 302; Rigby v. Great Western Railway (y) Rigby v. Great Western Rail- (z) Att.-Gen. v. Manchester and way Co.,2 De G. & S. 55; 5 Ra. Ca.401. (a) Clarke v. Clarke, 13 W. R. 133. (b) Jones v. Great Western Railway Co., 1 Ra. Ca. 685; McNeill v. Williams, 11 Jur. 344; Ford v. Gye, 6 W. R. 235. (c) Bramwell v. Halcomb, 3 M. & C. 737; 45 R. R. 378; Rigby v. Great Western Railway Co., 2 Ph. 44; Cory v. Yarmouth and Norwich Railway Co., 3 Ha. 603; Elwes v. Payne, 12 Ch. D. 470; Mitchell v. Henry, 15 Ch. D. 191. (d) Rigby v. Great Western Railway Co., 2 Ph. 44, 50. Where an injunction is withheld upon the condition of the defendant entering into an undertaking as to terms, the Court may make it a part of the order that if default is made in complying with the order the injunction shall issue (e). Chap. III. Sect. 1. As on the one hand the Court may in doubtful cases, as a Terms imposed on plaintiff as a condition of withholding an injunction, require the defendant condition of to enter into terms, so on the other hand it will, as a condition granting an injunction. of granting an injunction, require the plaintiff to enter into an undertaking as to damages in the event of the right at law being determined in favour of the defendant, and the injunction proving to have been wrongly granted (ƒ). The undertaking was formerly required only in cases where the application was ex parte, but the present case is to require the undertaking as well where the motion is on notice as where it is ex parte (g). Where the question at issue has reference to the payment of money (e.g., where a mortgagor seeks to restrain his mortgagee from selling (h), or where a tenant seeks to restrain a distress (i)), the Court may, as a condition of granting an injunction, require the money to be paid into Court. The Court may, on granting an injunction, put the plaintiff on an undertaking to prosecute the action with due diligence (k). The Court may also, upon granting or refusing an injunction, impose terms as to admissions being made at the trial (). In granting an interlocutory injunction at the Undertaking as instance of the Attorney-General suing on behalf of the required from (e) Proprietors of Northam Bridge and Roads v. London and Southampton Railway Co., 1 Ra. Ca. 653; Spencer v. London and Birmingham Railway Co., ib. 159; Att.-Gen. v. Eastern Counties Railway Co., 3 Ra. Ca. 337. (f) Chappell v. Davidson, 8 D. M. & G. 1. (g) Smith v. Day, 21 C. D. p. 424; Chappell v. Davidson, 8 D. M. & G. 1; Tuck v. Silver, John. 218. See, however, the case of Ingram v. Stiff, cited in the note to Tuck v. Silver, where, the defendant being clearly guilty of fraud, the V.-C. (h) Whitworth v. Rhodes, 20 L. J. (1) Shaw v. Lord Jersey, 4 C. P. D. 359. (k) Newson v. Pender, 27 Ch. D. 43, 63. (1) Hilton v. Lord Granville, Cr. & Ph. 283; Sweet v. Cator, 11 Sim. 572; Dickens v. Lee, 8 Jur. 186; Bohn v. Bogue, 10 Jur. 420. to damages not Crown Chap. III. Interim restraining order. Dismissal of action unless a favourable opinion as to the merits. Crown, the Court will not, as a rule, require an undertaking as to damages to be given (m). Instead of issuing the injunction in the first instance, the prohibition of the Court is often issued and conveyed in the shape merely of an interim restraining order, by which the defendant is restrained until after a particular day named, liberty being given to the plaintiff to serve notice of motion for an injunction for the day before such day (»). If the plaintiff has not, in the opinion of the Court, laid a Court can form sufficient foundation for his action, it will be dismissed. The Court will not order the motion to stand over or retain an action, unless it has a favourable opinion on the merits of the case (o). Nor will the Court, unless the circumstances of the case are such as to lead it to form an opinion as to the legality of the act complained of, or to put the case into a course of immediate investigation, allow the motion to stand over till the purpose has been so far executed as that its character may be judged of, but will refuse the motion (p). An injunction will not be granted on the principle that it will do no harm to the defendant, if he has not done the act complained of (q). Injunction The mere fact that an appeal may be pending is not a ground pending appeal. for refusing an injunction to restrain the violation of a legal right (7). Mere inconvenience and annoyance is not enough to induce the Court to take away from the successful party the benefit of his decree (s). The Court may, however, suspend the operation of the injunction for a given time if there is danger of irreparable mischief being done in the meantime, or if there are grounds for doubting the correctness of the decision (t); and the Court may, on a proper case being made (m) Att.-Gen. v. Albany Hotel Taylor, 2 Ph. 209. (a) Coffin v. Coffin, Jac. p. 72; 23 R. R. 1. (r) Att.-Gen, v. Bradford Canal Co., 2 Eq. 71; Penn v. Bibby, 3 Eq. 308. (8) Walford v. W., 3 Ch. 814. (t) Att.-Gen. v. Bradford Canal Co., 2 Eq. 71; Walford v. W., 3 Ch. 812, 814. out, restrain by injunction all dealings with a fund pending an appeal to the House of Lords, although the Court has decided against the title of the plaintiff and dismissed the action (u). The jurisdiction, however, will be exercised with care and so as not to encourage any one to present an appeal for the purpose of delay (x). Chap. II SECTION II. PERPETUAL INJUNCTIONS-MANDATORY INJUNCTIONS. Sect. 2. After the establishment of his legal right and of the fact of its violation, a man is in general entitled as of course to a per- Perpetual petual injunction to prevent the recurrence of the wrong, unless injunctions. there be something special in the circumstances of the case (y). The jurisdiction is founded on the equity of relieving a man from the necessity of bringing action after action at law for every violation of a common law right, and of finally quieting the right, after a case has received such full decision as entitles a man to be protected against further trials of the right (z). The award of an arbitrator is for the purposes of the injunction as good as a verdict (a). The fact that trifling or merely nominal damages may have been recovered at law is not per se a sufficient ground for refusing to grant a perpetual injunction (); but it is a circumstance which the Court will take into consideration in determining whether to exercise its jurisdiction (c). The Court will in general have regard not only to the dry strict rights of the plaintiff and defendant, but also to the surrounding circumstances (d). The consideration of the balance of convenience and inconvenience in granting or withholding the injunction (u) Polini v. Gray, 12 Ch. D. 438; 28 W. R. 361. (r) 12 C. D. 446, 447. (y) Imperial Gas Co. v. Broadbent, 7 H. L. C. 612; and see Shelfer v. City of London Electric C., (1895) 1 Ch. 314, 315. (z) Imperial Gas Co. v. Broadbent, supra; Lowndes v. Bettle, 33 L. J. Ch. 451. (a) Imperial Gas Co. v. Broadbent, 7 H. L. C. 600. (b) Rochdale Canal Co. v. King, 2 Sim. N. S. 78, 86; 16 Beav. 638. (c) Wood v. Sutcliffe, 2 Sim. N. S. p. 165. (d) Ib.: |