A TREATISE ON THE LAW AND PRACTICE OF INJUNCTIONS. CHAPTER I. INJUNCTIONS IN GENERAL. AN injunction was under the old procedure a writ issuing Chap. I. by order and under seal of the Court of Chancery. A writ of Under the old injunction may be described as a judicial process whereby a practice. party was required to do a particular thing or to refrain from doing a particular thing according to the exigency of the writ. The process, however, was rather preventive than restorative, though it was by no means confined to the former object. When commanding an act to be done, it issued after decree, and was in the nature of an execution to enforce the same; as, for instance, it might contain a direction to the party defendant to yield up or to quit or continue the possession of the land or other property which constituted the subjectmatter of the decree in favour of the other party (a). procedure. Under the present procedure no writ of injunction is to issue. Under modern An injunction is by judgment or order, and such judgment or order has the effect which a writ of injunction previously had (b). Injunctions are either interlocutory or perpetual. Interlocutory injunctions are such as are to continue until the hearing of (a) Gilb. For. Rom., ch. 11, pp. 194, 195; Stribley v. Hawke, 3 Atk. 275; Huguenin v. Basley, 15 Ves. 180; 9 R. R. 148, 276. Chap. I. Perpetual injunctions. Interlocutory injunction. the cause upon the merits, or generally until further order. Perpetual injunctions are such as form part of the decree made at the hearing upon the merits, whereby the defendant is perpetually inhibited from the assertion of a right or perpetually restrained from the commission of an act which would be contrary to equity and good conscience (c). The perpetual injunction is in effect a decree, and concludes a right. In The interlocutory injunction is merely provisional in its nature, and does not conclude a right. The effect and object of the interlocutory injunction is merely to preserve the property in dispute in statu quo until the hearing or further order. interfering by interlocutory injunction, the Court does not in general profess to anticipate the determination of the right, but merely gives it as its opinion that there is a substantial question to be tried, and that till the question is ripe for trial, a case has been made out for the preservation of the property in the meantime in statu quo. A man who comes to the Court for an interlocutory injunction, is not required to make out a case which will entitle him at all events to relief at the hearing. It is enough if he can show that he has a fair question to raise as to the existence of the right which he alleges, and can satisfy the Court that the property should be preserved in its present actual condition, until such question can be disposed of (d). (c) Gilb. For. Rom. 194 195. (d) Glascott v. Lang, 3 M. & C. 451, 455; Hilton v. Lord Granville, Cr. & Ph. 283, 292; Great Western Railway Co. v. Birmingham and Oxford Junction Railway Co., 2 Ph. 597, 603; Dyke v. Taylor, 3 D. F. & J. 467; Walker v. Jones, L. R. 1 P. C. 50, 61; Preston v. Luck, 27 C. D. 505, 506, per Cotton, L.J. CHAPTER II. THE NATURE AND LIMITS OF THE JURISDICTION OF THE HIGH COURT OF JUSTICE BY INJUNCTION. formerly UNDER the former procedure, the jurisdiction by injunction Chap. II. to restrain the doing of wrongful acts was a jurisdiction which Jurisdiction could only be exercised by the Court of Chancery. The Courts confined to of common law had by the Common Law Procedure Act, 1854, Chancery. 17 & 18 Vict. c. 125 (a), been empowered to grant injunctions in particular cases; and by the 15 & 16 Vict. c. 83, had been empowered to grant injunctions in patent cases; but until the Judicature Act, 1873, the remedy by injunction continued to be, with these exceptions, a remedy peculiar to the Court of Chancery. By that Act, 36 & 37 Vict. c. 66, s. 16, all the jurisdiction of the Court of Chancery was transferred to the High Court of Justice (b); and by sect. 25, sub-sect. 8, it is declared that: sub-sect. 8, of 1873. "A mandamus or an injunction may be granted, or a Sect. 25, receiver appointed, by an interlocutory order of the Court Judicature Act, in all cases in which it shall appear to the Court to be just or convenient that such order should be made; and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think just." This enactment (c) does "not confer an arbitrary or an The effect of unregulated discretion on the Court" (d). It does "not mean 8, of the Judisect. 25, sub-sect. that the Court is to grant an injunction simply because it cature Act, thinks it convenient. It means that the Court should grant an injunction for the protection of rights or the prevention of (a) Sections 81, 82. These sections have been repealed by the Statute Law Revision Act, 1883. (b) See Warner v. Murdoch, 4 Ch. D. 752. (c) 36 & 37 Vict. c. 66, s. 25, sub-s. 8. (d) Harris v. Beauchamp Bros., (1894) 1 Q. B. p. 809 (C. A.). 1873. Chap. II. injury according to legal principles " (e). This sub-section (f) does not enable the Court to issue an injunction in a case in which before the Act there was no legal right on the one side or no legal liability on the other side, either at law or in equity (g). It was not intended by the enactment "to give the right to an injunction to parties who before had no legal right whatever, but simply to give to the Court, when dealing with legal rights which were under its jurisdiction independently of this section, power, if it should think it just or convenient, to superadd to what would have been previously the remedy, a remedy by way of injunction, altering therefore not in any way the rights of parties, so as to give a right to those who had no legal right before, but enabling the Court to modify the principle on which it had previously proceeded in granting injunctions, so that where there is a legal right the Court may, without being hampered by its old rules, grant an injunction where it is just or convenient to do so for the purpose of protecting or asserting the legal rights of the parties. . . . All that was done by this section was to give to the High Court power to give a remedy which formerly would not have been given in that particular case, but still only a remedy in defence of or to enforce rights, which according to law were previously existing and capable of being enforced in some or one of the different divisions which are now united in the High Court. . . . The sole intention of the section is this that where there is a legal right which was, independently of the Act, capable of being enforced either at law or in equity, then, whatever may have been the previous practice, the High Court may interfere by injunction in protection of that right" (h). ... As was said in a recent case, the enactment in question "has not revolutionised the law, but it has enabled the Court to grant injunctions and receivers in cases in which it used (e) Per Jessel, M.R., in Aslatt v. Corporation of Southampton, 16 C. D. p. 148. (ƒ) 36 & 37 Vict. c. 66, s. 25, sub-s. 8. (g) Per Brett, L.J., in North Lon don Railway Co. v. Great Northern Railway Co., 11 Q. B. D. p. 38. (h) Per Cotton, L.J., in North London Railway Co. V. Great Northern Railway Co., 11 Q. B. D. 39, 40. not to do so previously. I will not say where it had no jurisdiction to do so, that would be going too far, but where in practice it never did so " (j). It was not the practice of the old Court of Chancery to interfere by injunction where there was a legal right in question which was being put in course for trial at law. Accordingly in Reg. v. Mayor of Dover (k), the Court of Queen's Bench decided, two years after the issue of the writ and a year after the mayor had left office, that he had no right to be mayor at all. But under the Judicature Act it seems that where independently of that Act there is a right that can be asserted either at law or in equity, the Court can grant an injunction whether interlocutory or perpetual in protection of the right (1). Chap. II. sect. 25, sub-sect. 1873. Accordingly, in Aslatt v. Mayor of Southampton (m), although The effect of there was a remedy at law by quo warranto and before the s, of the JudiJudicature Act an injunction would not have been granted, cature Act, the Court restrained the corporation by injunction from declaring the plaintiff's office void, on the ground that the injunction was required in order to do effectual justice. So also in Stannard v. Vestry of St. Giles (n), and in Hedley v. Bates (0), where there was before the Judicature Act a right to apply to a Court of common law for a prohibition, Jessel, M.R., when he had the parties before him, instead of sending them. to get a prohibition, granted an injunction against the person who was seeking to go before the wrong tribunal. Again, the Court will, since the Judicature Act, in a proper case, restrain the publication of a libel (q); or the making of slanderous statements calculated to injure another in his business (r). But it is only in the clearest cases of libel or (j) Cummins v. Perkins, (1899) 1 Ch. p. 20, per Lindley, M.R. See, however, Kitts v. Moore, (1895) 1 Q. B. 253 (C. A.). (k) Cited by Jessel, M.R., in (1) Richardson v. Methley School Board, (1893) 3 Ch. 510. (m) 16 C. D. 148. (4) Thomas v. Williams, 14 C. D. 864; Quartz Hill, &c., Mining Co. v. Beall, 20 C. D. 501; Hayward v. H., 34 C. D. 198. (r) Loog v. Bean, 26 C. D. 306. |