Chap. X. to remain away from the office of the plaintiff (ƒ). So also a partner who had taken away one of the partnership books from the counting-house of the firm in breach of a covenant in the partnership deed, was restrained from continuing to violate the covenant (g), and from keeping it at any other place than the partnership premises (h). So also trustees of a chapel were restrained from permitting a minister to officiate in the chapel contrary to a covenant entered into by them (i). So also a mine owner who had covenanted to leave sufficient barriers against the adjoining collieries, but had broken his covenant, was restrained from permitting a communication. with an adjoining mine to remain open and water to flow therefrom (k). So also a railway company which had agreed with a man to make a road at a certain level, were restrained from making a road at a lower level than they had agreed to do (1). So also a railway company which had agreed with the vendor of land to use a certain portion of the land as and for a first-class station for the purpose of taking up and setting down passengers, were restrained from allowing their trains to pass the station without stopping (m). So also where a building has been erected in a form that is in violation of a contract or an Act of Parliament, the Court may restrain the defendant from using the building (n), or may compel him to alter the elevation or form of the building so as to be in conformity with the terms of the contract or the Act of Parliament, as the case may be (0). (f) Whittaker v. Howe, 3 Beav. 383; Whitwham v. Moss, 73 L. T. 57. (g) Taylor v. Davis, 4 L. J. Ch. 18; 7 L. J. Ch. 178; 3 Beav. 288, n. (h) Greatrex v. Greatrex, 1 De G. & S. 692. (i) Foundling Hospital v. Garrett, 47 L. T. 230. (k) Lord Mexborough v. Bower, 7 Beav. 127, affd. 2 L. T. O. S. 205. See Powell v. Aiken, 4 K. & J. 355. (1) Foster v. Birmingham, Wolverhampton, and Dudley Railway Co., 2 W. R. 378. (m) Hood v. North Eastern Railway Co., 5 Ch. 525, 1 Set. 704. Comp. Philipps v. Great Western Railway Co., 7 Ch. 415; Turner v. London and South Western Railway Co., 17 Eq. 561. (n) Warden of Dover Harbour v. South Eastern Railway Co., 9 Ha. 493; London, Chatham, and Dover Railway Co. v. Bull, 47 L. T. 415. (0) Lord Manners v. Johnson, 1 C. D. 680; Macmanus v. Cooke, 56 L. J. Ch. 662. See Storer v. Great Western Railway Co., 2 Y. & C. C. C. 48; Child v. Douglas, Kay, 577; It is now settled that a mandatory injunction may be framed in the form of a positive and direct order upon the defendant to do the act required (p). A man, however, who seeks a mandatory injunction must use due diligence in making the application (q). In a case where a building had been erected by defendant's predecessor in title in breach of covenant, and had been allowed to stand for five years, the Court would not interfere by mandatory injunction to order it to be pulled down (). The Court will seldom interfere to pull down a building which has been erected without complaint (s). Chap. X. Instead of granting an injunction the Court may, when Damages. it is satisfied that such a course will be justified by the circumstances of the case, substitute damages for an injunction (t). But a man may by acquiescence in a breach of covenant not only deprive himself of his right to an injunction but of his right to recover damages in substitution for an injunction, or even nominal damages (u). SECTION II.—INJUNCTIONS IN AID OF SPECIFIC PERFORMANCE. A COURT of equity has jurisdiction pending a suit for specific performance to restrain the vendor from alienating or affecting by other acts the subject-matter in litigation. Whether or not the jurisdiction will be exercised depends on the special circumstances of the case. If there is a clear, undisputed contract, the Court will not permit the vendor to transfer the legal estate to a third person (x). But if the validity of the contract is open to doubt, the question whether the vendor shall be Chap. X. Mandatory order for entry and inspection, &c. permitted to transfer the legal estate to a third person, pending a suit for specific performance, becomes a question of compara tive convenience or inconvenience. If on the one hand greater inconvenience would arise to the plaintiff from withholding the injunction than to the defendant from granting it, an injunction will be granted (y). If, on the other hand, greater inconvenience would arise to the defendant from granting the injunction than to the plaintiff from withholding it, an injunction will not be granted (z). Where, however, the legal estate is outstanding, an injunction to restrain the vendor from dealing with the property is unnecessary. It is sufficient in such a case for the purchaser to register the suit as a lis pendens (a). In a case in which the unpaid vendor of land taken by a railway company had brought an action to enforce his lien and an order had been made declaring the plaintiff entitled to a lien and directing the purchase money to be paid on or before a certain day, the defendants having made default in complying with the order, and there being evidence that the land was unsaleable, the Court granted an injunction restraining the defendants from running trains over the railway and from continuing in possession (b). Relief may be given even against parties whose rights are independent of the contract. Thus, where the suit related to an agreement for the sale of a next presentation to a living, the Bishop of the Diocese was restrained from instituting, or in the case of a lapse taking place pending the suit, from collating to the living any clerk not nominated by the plaintiff (c). Where an agreement had been entered into for the sale of a house at a fixed price, and of the fixtures and furniture at a valuation by a person named by the parties, but the (y) Ib.; Preston v. Luck, 27 C. D. 497. (z) Hadley v. London Bank of Scotland, 3 D. J. & S. 63. (a) See 2 & 3 Vict. c. 11; and see Hadley v. London Bank of Scotland, 3 D. J. & S. pp. 69, 70. (b) Allgood v. Merrybent and Darlington Railway Co., 33 C. D. 571. (e) Nicholson v. Knapp, 9 Sim. 326. vendor refused him permission to enter the premises for the purpose of valuation, a mandatory order was made to compel the vendor to allow the entry to enable the valuation to proceed (d). So also where serious injury might be done to property, the subject of the action, unless the defendant acted in a particular manner, which he could do with comparatively little trouble and risk, but which the plaintiff could not do at all, as where a colliery would be flooded, unless the person in possession under an agreement for a lease continued to pump, the interim preservation of the property was secured by the issue of a mandatory injunction, restraining the defendant from ceasing to act in that particular manner, e.g., pump out water (e). (d) Smith v. Peters, 20 Eq. 511. (e) Strelly v. Pearson, 15 C. D. 113; Ord. L. 3. Chap. X. Sect. 2. Chap. XI. CHAPTER XI. INJUNCTIONS AGAINST THE DISCLOSURE OF CONFIDENTIAL COM- THE Court will, in the exercise of its equitable jurisdiction to correct abuse of confidence, restrain by injunction the disclosure of confidential communications, papers, and secrets. In all cases where a confidential relationship can be shown to exist, the Court fastens an obligation on the conscience of the party who has derived any confidential communication through that relationship, and will enforce it against him in the same manner as it enforces against a party, to whom a benefit is given, the obligation of performing a promise on the faith of which the benefit has been conferred (a). Upon this principle, persons into whose possession, or to whose knowledge, papers, documents, copies of books, &c., have come in the course of their employment, e.g., solicitors, agents, accountants, merchants' clerks, assistants, &c., will be restrained from making them public or communicating their contents to a stranger (b). The obligation extends to those who have acquired their information at second hand from such persons (c). So also where a man was employed to take copies of a picture, he was restrained by injunction from keeping for his own use or selling any of the copies (d). The (a) Morison v. Moat, 9 Ha. 255. (C. A.). (c) Tipping v. Clarke, 2 Ha. p. 393; Prince Albert v. Strange, 1 Mac. & G. 25; Russell v. Jackson, 9 Ha. 391; Robb v. Green, (1895) 2 Q. B. p. 16. (d) Tuck v. Priester, 19 Q. B. D. 629 (C. A.); Pollard v. Photographic Co., 40 C. D. 345. |