And the Court, acting on the well-known rule, "Sic utere tuo, ut alienum non lædas," will not allow one person to use his right over water in such a manner as to injure another. Thus a defendant was restrained from pouring waste water from his own mine into that of his neighbour's. (Duke of Beaufort v. Morris, 6 Hare, 340.) See also Robinson v. Lord Byron (1 Bro. Ch. C. 588), where the defendant, having a head of water above the plaintiff's mill, sometimes kept the water back, and sometimes sent it down in such quantities as to endanger the mill; and the Court restrained him from using his right in any but the ancient way.

WAYS.

The right to a way is another of those rights which the Court will interfere to protect on a sufficient case being made out (Spencer v. London and Birmingham Railway Company, 8 Sim. 193); and it seems, from that case, that it is not necessary that the way in question should be the only way capable of user, as the plaintiff is not to be driven to resort to a circuitous and inconvenient way.

OBSERVATIONS

UPON

RELIEF IN EQUITY,

AND UNDER

THE COMMON LAW PROCEDURE ACT, 1854.

Common

missioners.

BEFORE entering upon the consideration of that Report of portion of the Act by which equitable powers of Law Comgranting relief are given to the Common Law Courts, it may be as well to state what were the views of the learned Commissioners, upon whose recommendation these sections were framed. In their Second Report (p. 45), they say "We next proceed to consider those cases, happily rare, but which, nevertheless, where they occur, are a discredit to our jurisprudence, in which Courts of Law and Equity apply different rules of right and wrong to the same subject-matter. They do not so much arise out of any defect in procedure to which our commission is limited, as out of a defective state of the substantive law itself; and the true remedy for such evils is to make the law uniform by legislative enactment. Glaring instances of defects of this description occur in cases where Courts of Law are obliged to hold defences

158

REPORT OF COMMON LAW COMMISSIONERS.

untenable, which in a Court of Equity are considered valid. The result is, that a Court of Law must give a judgment in favour of the plaintiff which a Court of Equity will restrain him from enforcing: Thus, when one of the parties to a deed under seal has done some act not amounting to an actual prevention of performance, or has entered for valuable consideration into some agreement not under seal, by which another party to the deed would have been absolved from the performance of his covenant but for the circumstance of its being under seal, which (by a harsh application of the rule of the civil law, eo genere quidque dissolvi quo colligatum est,) nullifies in a Court of Law the defence arising out of such an act or agreement, and subjects the covenanting party to a judgment for the damages occasioned by his breach of covenant thus left technically unexcused, a Court of Equity will interpose, and, disregarding the mere formality of the seal, will, by injunction, perpetually prohibit the party, whose act or agreement but for that formality would have constituted a defence, from enforcing the judgment which he has obtained, and which, but for the imperative strictness of the law, the Common Law Courts would not have pronounced."

In order to meet the injustice pointed out in the above cited passage, the Commissioners recommended (p. 45) that the powers of relief, now possessed by Courts of Equity, should be entrusted to the Courts of Common Law. The legislature, however, while adopting the spirit of these recommendations, have not carried them out in practice to the full extent proposed by the Commissioners.

This will be seen by comparing the recommendations with the sections which will be found below in the note (a).

The way in which Equity usually grants relief when Equity against judgments obtained at law, and against fur- grants relief. ther proceedings at law, is, as is well known, by injunction (b).

The cases in which such relief is granted are so numerous, that any sketch of them must necessarily be very imperfect. But, speaking generally, it may

(a) It shall be lawful for the defendant or plaintiff in re- Equitable plevin, in any cause in any of the Superior Courts in which, defence may be pleaded. if judgment were obtained, he would be entitled to relief against such judgment on equitable grounds, to plead the facts which entitle him to such relief by way of defence, and the said Courts are hereby empowered to receive such defence by way of plea; provided that such plea shall begin with the words" For defence on equitable grounds," or words to the like effect. Sect. 83.

Any such matter which, if it arose before or during the Equitable time for pleading, would be an answer to the action by way defence after of plea, may, if it arise after the lapse of the period during Judgment. which it could be pleaded, be set up by way of auditâ querela.

Sect. 84.

The plaintiff may reply, in answer to any plea of the de- Equitable fendant, facts which avoid such plea upon equitable grounds; Replication. provided that such replication shall begin with the words

"For replication on equitable grounds," or words to the like

effect. Sect. 85.

Provided always, that in case it shall appear to the Court, Court or or any Judge thereof, that any such equitable plea or equitable Judge may strike out replication cannot be dealt with by a Court of Law so as to equitable do justice between the parties, it shall be lawful for such Plea or ReCourt or Judge to order the same to be struck out on such plication. terms as to costs and otherwise as to such Court or Judge may seem reasonable. Sect. 86.

(b) We have said "usually:" for, if justice should require it, the Court would order the defendant to vacate or enter up satisfaction on the judgment. A registered judgment obtained contrary to Equity, though restrained by perpetual injunction, might form a cloud on the plaintiff's title; as a purchaser might feel doubtful how far the protection of the injunction might be sustained on appeal.

be stated, "that in all cases, where by accident, mistake, or fraud, or otherwise, a party has an unfair advantage in proceeding in a Court of Law, which must necessarily make that Court an instrument of injustice, and it is therefore against conscience that he should use that advantage, a Court of Equity will interfere, and restrain him from using the advantage which he has thus improperly gained; and it will also generally proceed to administer all the relief which the particular case requires, whether it be by a partial or total restraint of such proceedings. If any such unfair advantage has been already obtained by proceedings at law to a judgment, it will, in like manner, controul the judgment, and restore the injured party to his original rights (c)."

The leading grounds for relief above pointed out are the comparatively simple ones of mistake, accident, and fraud: but these are not by any means the only grounds of relief; it being the proper jurisdiction of Courts of Equity to take every one's act according to conscience, and not to suffer undue advantage to be taken of strict forms of law, or possitive rules (d).

Thus, if the Court can gather from the acts of the parties, or imply from the course of trade, or the nature of the subject-matter, that there was any intention to set off cross demands one against the other, the Court would enforce such set-off; and if judgment has been recovered at Law for the one side

(c) Story, Eq, Jur. § 885; and see Mitford on Eq. Plead. 134, 150; Eden on Injunct. ch. 2, p. 4.

(d) See 1 Fonbl. Eq. b. 1, c. 1, s. 7; Chesterfield v. Janssen, 2 Ves. sen. 137.