Sect. 1. tried, which may be necessary or expedient for the purpose of Chap. XXIII. obtaining full information or evidence (d). Under this rule the Court may grant an interim injunction to restrain a defendant from ceasing to pump water out of a mine in order to preserve it from injury (e). inspection. An application for an order for inspection may be made by Application for any party to the cause. It may be made after notice to the defendant at any time after the issue of the writ. If it be made by any other party, it must be made on notice to the plaintiff and after appearance by the party making the application (ƒ). The application may be made by motion or summons. It is usually made on application for an interlocutory injunction, but it is immaterial at what stage of the proceedings the application is made. Upon an application for the order the Court looks at the nature of the action, the purposes for which it is sought, and whether the case is such that the Court is authorised in making the order (g). If the Court is of opinion that an inspection is not necessary to enable the party who makes the application to establish his case, the order will not be granted (h). The application for an order for inspection should ordinarily be on notice, but under special circumstances it may be made ex parte (i). The Court of Chancery had no inherent power to ascertain Damages. the amount of damages sustained by reason of tortious acts unattended with profit to the wrongdoer. But the jurisdiction to give and assess damages in respect of such acts was conferred (d) See as to costs, Mitchell v. Darley Main Colliery Co., 10 Q. B. D. 457. As to the power of the judge before whom a cause or matter is heard, to inspect any property or thing concerning which any question may arise therein, see Ord. L. r. 4; and see London General Omnibus Co. v. Lavell, (1901) 1 Ch. 135 (C. A.). (e) Strelley v. Pearson, 15 C. D. 113; and see Polini v. Gray, 12 C. D. 438, 443 (C. A.). (f) Ord. L. r. 6. (g) See Lamb v. Beaumont, 27 C. D. 356, for an order giving the plaintiff leave to enter upon the defendant's land and excavate for the purpose of inspection. (h) Barlow v. Bailey, 18 W. R. 783, W. N. (1870) 136. (i) Hennessy v. Bohman, W. N. (1877) 14. Sect. 1. Chap XXIII. on the Court of Chancery by Lord Cairns' Act, 21 & 22 Vict. c. 27. It was declared by sect. 2 of that statute that in all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, the same Court may award damages to the party injured, either in addition to or in substitution for such injunction or specific performance, and such damages may be assessed in such manner as the Court shall direct. Damages in lieu of injunction. Though this clause of Lord Cairns' Act has been repealed by 46 & 47 Vict. c. 49, s. 3, the jurisdiction seems to be preserved by sect. 5 of the same statute (k). It is not, however, necessary to have recourse to Lord Cairns' Act, for the High Court of Justice has now full power under the Judicature Act, 1873, to give either an injunction or damages (1); and the Court's power is larger than the power it possessed under Lord Cairns' Act, for under Lord Cairns' Act the plaintiff had first to make out that he was entitled to an equitable remedy before he could obtain damages (m). In determining whether it shall grant an injunction or damages in lieu of an injunction, the Court exercises a discretion. But this discretion must be a judicial discretion exercised according to something like a settled rule in such a way as to prevent a man doing a wrongful act and thinking that he can pay damages for it (n). If the injury complained of is of a very material nature, it is contrary to the practice of the Court to give damages in lieu of an injunction (o). Damages may (k) Sayers v. Collyer, 28 C. D. 103 (C. A.); Dreyfus v. Peruvian Guano Co., 42 C. D. p. 73; Shelfer v. City of London Electric Lighting Co., (1895) 1 Ch. 287. (1) Ib. (m) Elmore v. Pirrie, 57 L. T. 353, per Kay, J. (n) Smith v. Smith, 20 Eq. 505; Krehl v. Burrell, 7 C. D. 551, 11 C. D. 146; Holland v. Worley, 26 C. D. 578; Greenwood v. Hornsey, 33 C. D. 471; Martin v. Price, (1894) 1 Ch. 276, 285. (0) Krehl v. Burrell, 7 C. D. 511, 11 C. D. 146; Holland v. Worley, 26 C. D. 578; Greenwood v. Hornsey, 33 C. D. 471; Martin v. Price, (1894) 1 Ch. 276; Shelfer v. City of London Electric Lighting Co., (1895) 1 Ch. 287. Sect. 1. be given instead of an injunction when the following require- Chap. XXIII. ments are found in conjunction, viz., where the injury is: (i.) small; (ii.) capable of being estimated in money; (iii.) capable of being adequately compensated by a small sum; and (iv.) when an injunction would be oppressive (p). In a case of continuing actionable nuisance, damages instead of an injunction will only be given in very exceptional circumstances (9); and it seems that there is no jurisdiction to give damages in respect of a threatened injury, where no wrongful act has been committed (r). Acquiescence is one of those circumstances which the Court takes into consideration in deciding whether it should give damages or an injunction (s). In order that damages should be an adequate substitute for an injunction, they must cover the whole area which would have been covered by the injunction. They must comprise as well the damages for wrongful acts continued up to the time of trial as for those which had taken place before the issue of the writ (t). If the wrongful act has come to an end before the trial, the Court has jurisdiction nevertheless to assess the whole of the damages accrued (u). In a case in which an injunction was granted to restrain a trespass, it was held that as the right to the injunction depended on the fact that there was no proper compensation in damages, damages would not be awarded in addition to the injunction (x). Where there is no difficulty in assessing damages, the judge will assess them at the trial, and thus save the expense of an inquiry (y). (p) Shelfer v. City of London Electric Lighting Co., (1895) 1 Ch. p. 322. (9) Shelfer v. City of London Electric Lighting Co., (1895) 1 Ch. p. 287. (r) Dreyfus v. Peruvian Guano Co., 43 C. D. 316 (C. A.); but see Martin v. Price, (1894) 1 Ch.pp. 284, 285 (C. A.). (8) Sayers v. Collyer, 28 C. D. 103; Shelfer v. City of London Electric Lighting Co., (1895) 1 Ch. p. 322. (t) Fritz v. Hobson, 14 C. D. 543; (u) Fritzv. Hobson, supra; Daven- (x) Eardley v. Lord Granville, 24 W. R. 528. Sed quære. (y) Crawford v. Hornsea Steam, &c., Co., W. N. (1876) 132; Holland v. Worley, 26 C. D. 587. Chap. XXIII. Appeal on questions of damage. An inquiry as to damages will not be directed in addition to the account (z). Nor will an inquiry as to damages be directed where the plaintiff has opened a case of substantial injury entitling him to an injunction and damages and has failed to prove substantial injury (a). When the plaintiff fails on the merits at the trial, the defendant is entitled to an inquiry on plaintiff's undertaking as to damages sustained by him by reason of the interlocutory injunction (b); unless there are special circumstances disentitling him to such inquiry (c). To entitle a party to damages, it is not necessary that damages should be specifically prayed for. Damages may be had under the prayer for general relief (d). A man who has brought an action for relief and damages does not lose his right to damages because performance has been obtained from the defendant before the suit comes to a hearing (e). An appeal will not lie on the question of the amount of damages unless it appear that the Court below has acted on a wrong principle in arriving at such amount (ƒ). SECTION II.-DISSOLUTION OF INJUNCTION. An interlocutory injunction may be dissolved at any time before judgment in the action. A defendant who wishes to have an injunction dissolved must serve the plaintiff with notice of motion for that purpose. If other parties are (z) De Vitre v. Betts, L. R. 6 H. L. 321. (a) Kino v. Rudkin, 6 C. D. 165. (b) Ib.; Ross v. Buxton, W. N. (1888) 55; Griffith v. Blake, 27 C. D. p. 477. (c) Smith v. Day, 21 C. D. 421; Griffith v. Blake, ante; and see Bingley v. Marshall, 11 W. R. 1018; and see post, sect. v. of this chapter. (d) Catton v. Wyld, 32 Beav. 266; Betts v. Neilson, 3 Ch. 441; Lady Stanley v. Lord Shrewsbury, 19 Eq. 616. (e) Cory v. Thames Iron, &c., Co., 11 W. R. 589. (f) Ball v. Ray, 22 W. R. 283. Sect. 2. interested with the applicant as co-defendants, it may be Chap. XXIII. necessary to serve them also with the notice of motion (g). Where an interim order has been obtained by plaintiff, and simultaneous applications are made for an injunction, and to discharge the order, the plaintiff is entitled to begin (h). An injunction cannot, on the motion to dissolve, be sustained on grounds not raised by the statement of claim (i). Nor is it competent for the plaintiff, on the motion to dissolve, to make a new case (k). Unless the Court gives special leave to the contrary, there must be at least two clear days between the service of notice of motion to dissolve, and the day named in the notice for hearing the motion (1). If special leave be given by the Court, the leave must be stated in the notice (m). The notice should be given for one of the days appropriated to the hearing of motions (n); but, if a case of urgency be made out, leave may be had from the Court to give notice of motion for a day not appropriated to the hearing of motions. The notice should state that the motion is with leave (o). The plaintiff is sometimes required by the interim order to undertake that he will accept short notice to discharge the order (p). In cases where an injunction has been obtained ex parte, the Court will, where an application is made on counteraffidavits to dissolve the injunction, entertain the application immediately, and will not give the plaintiff time to file affidavits in reply, unless it shall be of opinion that justice requires that he should have time allowed him for replying to the affidavits. The motion to dissolve should be made before the Court by which the injunction was granted (q). But if the cause has been transferred to another branch of the Court the application |