CHAPTER X. INJUNCTIONS IN RESPECT OF COVENANTS OR AGREEMENTS. Chap. X. Sect. 1. Jurisdiction. SECTION I.—INJUNCTIONS AGAINST BREACH OF COVENANT OR THE jurisdiction of the Court by interlocutory injunction against breach of covenant or agreement is in aid of the legal right. The jurisdiction is exercised either by way of injunction or by way of specific performance. The consideration and principles upon which the Court acts in restraining by injunction breaches of covenant differ in a material respect from those upon which it acts in decreeing specific performance. It is not the practice of the Court to decree specific performance of part of an agreement, where there are other parts which it cannot carry out. Unless the whole agreement can be specifically enforced, and complete justice be done between the parties, the Court will, as a general rule, decline to interfere (a). The Court will not interpose partially, except in cases in which the parts of the agreement, which cannot be specifically enforced, are independent of those which may be specifically performed (b), or are subordinate provisions (c). (a) Gervais v. Edwards, 2 Dr. & War. 80; South Wales Co. v. Wythes, 5 D. M. & G. 880; Phipps v. Jackson, 56 L. J. Ch. 550. But as to whether this rule applies to executed contracts or only to executory contracts, see Rigby v. Great Western Railway Co., 15 L. J. Ch. 266, 271; Wolverhampton Railway Co. V. London and North W'estern Railway Co., 16 Eq. 433; and see (b) Gibson v. Goldsmid, 5 D. M. & G. 757; Kernot v. Potter, 3 D. F. & J. 447; Ogden v. Fossick, 4 D. F. & J. 426. (c) Blackett v. Bates, 2 H. & M. 270. See Hamilton v. Hector, 13 Eq. 511, as to covenants in a separation deed. INJUNCTIONS AGAINST BREACH OF COVENANT OR AGREEMENT. The consideration and principles, upon which the Court interferes by way of injunction, rest upon irreparable injury. The Court does not look to the effect which may be ultimately produced by the restraint which is placed on the party who is disposed to break his contract, but gives all the relief in its power, and leaves nothing unperformed which it can ever be called upon to perform. Chap. X. In all cases where specific performance can be decreed, the Injunction and specific jurisdiction by injunction will attach as a matter of course, performance. but it is not confined to such cases, but will be exercised in all cases where it can operate to bind men's consciences as far as they can be bound to a true and literal performance of their agreements. The Court will not suffer men to depart from their agreements at their pleasure, leaving the party with whom they have contracted to the mere chance of damages which a jury may give (d). Nor will it refrain from granting an injunction only because there are other covenants to be performed which may be possibly broken hereafter (e). The interference of the Court by way of injunction cannot however be had, unless the part of the agreement which is sought to be enforced is separable from, and forms a distinct part of the agreement (ƒ). which the 357 The jurisdiction of the Court by way of interlocutory injunc- Principles on tion against breach of covenant or contract being in aid of the jurisdiction legal right, and having for its object the protection of the is exercised. property from irreparable damage pending the trial of the right, a man who seeks the aid of the Court must be able to show a good primâ facie legal title to the right which he asserts (g). If the right at law under the covenant is clear or fairly made out, and the breach of it is clear or fairly made out, and serious injury is likely to arise from the breach, it is the duty of the Court to interfere before the hearing to (d) Lumley v. Wagner, 1 D. M. & G. 619; De Mattos v. Gibson, 4 D. & J. 282. (e) Rigby v. Great Western Railway Co., 15 L. J. Ch. 271, per Wigram, V.-C.; S. C., on appeal, 2 Ph. 44; and see Waring v. Man chester, Sheffield, and Lincolnshire (f) Kernot v. Potter, 3 D. F. & J. 459. (g) Capes v. Hutton, 2 Russ. 357; Sainter v. Ferguson, 1 Mac. & G. 289; ante, p. 12. Chap. X. Threatened breach of covenant. Undertaking as to damages. In what cases injunction will be refused. restrain the breach. But if the right at law under the covenant is not clear, or is not fairly made out, or the breach of it is doubtful and no serious injury can arise to the plaintiff, pending the trial of the right, the case resolves itself into a question of comparative injury, whether the defendant will be more damnified by the injunction being granted or the plaintiff by its being withheld (h). It is not necessary that the breach in respect of which the interference of the Court is sought should have been actually committed it is enough that the defendant claims and insists on his right to do the act complained of, although he may not have actually done it (i). But the Court will not interfere unless it is clear that a breach is intended. The Court will not assume that a man means to violate his agreement (k). The Court may at its discretion, as a condition of ordering the motion to stand over, require the defendant to keep an account and give an undertaking as to damages (1); or on granting an injunction may require the plaintiff to give an undertaking as to damages or to submit to account, as the Court may direct (m). The circumstance that a lessor has the right of re-entry for breach of a covenant does not preclude him from coming to the Court to restrain the breach (n). But to warrant the interference of the Court, it is not enough that the right at law under the covenant or contract be clear and the breach be clear. It is in all cases necessary that the covenant or contract should be of such a nature that it can consistently with the rules and principles of the Court be enforced. If the covenant or contract is from (h) Wilkinson v. Rogers, 2 D. J. & S. 62, 69; Garrett v. Banstead and Epsom Railway Co., 4 D. J. & S. 463; ante, pp. 20, 21. See, as to irreparable injury, ante, pp. 14, 15. (i) Tipping v. Eckersley, 2 K. & J. 264; ante, pp. 13, 14. (k) Foster v. Birmingham, Wolverhampton, &c., Railway Co., 2 W. R. 378; Worsley v. Swan, 51 L. J. Ch. 576. See Pattison v. Gilford, 18 Eq. 259. (1) Rigby v. Great Western Railway Co., 5 Ph. 44; Low v. Innes, 4 D. J. & S. 288. (m) East Lancashire Railway Co. v. Hattersley, 8 Ha. 72; Ingram v. Stiff, 3 Jur. N. S. 947; ante, pp. 22, 23. (n) Parker v. Whyte, 32 L. J. Ch. 520. its nature such that the Court cannot enforce specifically its performance, or if, from the nature of the act to be done or refrained from, the remedy lies peculiarly, at law, and a full and adequate compensation can be had there, the Court will not interfere (o). In a case in which A., as agent for B. and C. (C. being an infant), agreed to grant a lease to D., and D. brought an action for specific performance and claimed an injunction to restrain B. and C. until the trial from granting a lease to anyone else, it was held that as specific performance could not be granted in respect of the entirety it ought not to be granted in respect of the share of the adult defendant alone, and that accordingly an injunction should not issue against either defendant (p). The Court will not entertain jurisdiction where the claim sought to be enforced is a mere money claim (q), or has been already treated between the parties as a proper subject for pecuniary compensation ('). Nor will the Court generally entertain jurisdiction in respect of contracts for building or other work (s). But this rule is not without exceptions. Where, for instance, a railway company has taken lands from a landowner on the terms that they will carry out certain works, the Court will compel them to carry out such works (t). A plaintiff in order to bring himself within the exception must establish (1) that the building work of which he seeks to enforce performance is clearly defined by the contract, (2) that the plaintiff has a substantial interest in having the contract performed which cannot be adequately compensated for by (0) Collins v. Plumb, 16 Ves. 454; Furness Railway Co. v. Smith, 1 De G. & S. 299; Holmes v. Eastern Counties Railway Co., 3 K. & J. 675; Munro v. Wivenhoe, &c., Railway Co., 4 D. J. & S. 733. (p) Lumley v. Ravenscroft, (1895) 1 Q. B. 683 (C. A.) (4) Todd v. Gee, 17 Ves. 273; Sainsbury v. Jones, 2 Beav. 462; Glennie v. Imri, 3 Y. & C. 436. (r) Paris Chocolate Co. v. Crystal Palace Co., 3 Sm. & G. 119. See Wood v. Sutcliffe, 2 Sim. N. S. 168. (8) Kirk v. Bromley Union, 2 Ph. (t) Ryan v. Mutual Tontine, &c., (1893) 1 Ch. p. 128, per Kay, L. J.; Fortescue v. Lostwithiel, &c., (1894) 3 Ch. 621. Chap. X. Chap. X. Conduct of the consideration. damages, and (semble) (3) that the defendant has by the contract obtained possession of the land on which the buildings are to be erected (u). Nor will the Court entertain jurisdiction in the case of covenants or agreements for personal services, or involving duties of a personal and confidential character (x), or involving supervision which the Court could not undertake (y). Nor will the Court interfere if the covenant is vague, indefinite, or uncertain in its terms (z), or if it appears in its form to be harsh and oppressive (a), or if the contract is of such a nature that one of the contracting parties would gain considerable advantage at the expense of the other from its enforcement, while the other would gain no corresponding benefit (b). The conduct of the party who seeks the aid of the Court party who makes will be taken into consideration upon the application for an the application will be taken into injunction. A man who comes to the Court to restrain the breach of a covenant or contract must be able to show that he comes with clean hands (c). He cannot invoke the aid of the Court, if the covenant which he seeks the aid of the Court to enforce is in any way tainted with illegality (d). Nor can he have relief, unless it appear that he has actually carried out, as far as in him lies, his own part of the agreement (e), and unless he can show that he has used due diligence in making the application. (u) Wolverhampton Corporation v. Emmons, (1901) 1 Q. B. p. 525, per Romer, L. J.; Fry, 3rd ed., 46. (x) Pickering v. Bishop of Ely, 2 Y. & C. C. C. 249; Johnson v. Shrewsbury and Birmingham Railway Co., 3 D. M. & G. 914; Millican v. Sulivan, 4 Times R. 204. (y) Ryan v. Mutual Tontine, &c., (1893) 1 Ch. 116 (C. A.). (z) Mann v. Stephens, 15 Sim. 379; Low v. Innes, 4 D. J. & S. 288; Davies v. Davies, 36 C. D. 359. (a) Kimberley v. Jennings, 6 Sim. 340; Talbot v. Ford, 13 Sim. 173. (b) Shrewsbury and Birmingham Railway Co. v. London and North Western Railway Co., 6 H. L. C. 113; Vivers v. Tuck, 1 Moo. P. C. N. S. 516. (c) See Stiff v. Cassell, 2 Jur. N. S. 348; Maythorne v. Palmer, 11 Jur. N. S. 230; ante, p. 15. (d) Davies v. Makuna, 29 C. D. 596. (e) De Mattos v. Gibson, 4 D. & J. 276; Peto v. Brighton, Uckfield, and Tunbridge Railway Co., 1 H. & M. 468; Fechter v. Montgomery, 33 Beav. 22; Telegraph Despatch, &c., Co. v. M'Lean, 8 Ch. 658. |