may, if need be, make a special report to the Court in which the proceedings are pending, touching the examination, and the conduct or absence of any witness or other person thereon or relating thereto; and the Court may institute such proceedings, or make such order upon the report, as justice requires, as in the case of a contempt of Court (ƒ).

The costs of the application for a rule or order Costs. to examine witnesses, and of the rule or order itself and the proceedings thereon, are in the discretion of the Court or Judge by whom the rule or order is made (g).

(f) 17 & 18 Vict. c. 125, s. 56.
(g) Ib., s. 57.

OBSERVATIONS

UPON

INJUNCTIONS IN EQUITY,

AND UNDER

THE COMMON LAW PROCEDURE ACT, 1854.

I. NATURE OF INJUNCTIONS IN EQUITY.

Common

missioners.

THE advantages that would arise from giving Courts Report of of Common Law power to restrain violations of Law Comlegal rights were fully pointed out in the Third Report of the former Common Law Commissioners; and it may not be amiss to refer briefly to their remarks upon this subject: They there say, "The ordinary scope of the legal remedy is to give compensation or redress for injuries sustained, and it affords, in general, no means for preventing their commission : On the other hand, the practice of Courts of Equity, by way of injunction, extends not only to the protection of equitable rights, but of those also for the violation of which an action lies at Common Law. A Court of Equity will by injunction restrain waste in all cases; it will also restrain in cases of irremediable mischief, that is, such mischief as cannot, when committed, be adequately compensated by damages. Equity has in this re

H.

E

74

REPORT OF COMMON LAW COMMISSIONERS.

spect gradually enlarged a jurisdiction, which it
originally assumed by analogy to the case of waste;
and the instances in which it now gives this species
of relief where Common Law rights are invaded,
may
be classed as follows.-1. Waste. 2. Trespass,
and torts in certain particular cases, where if the
defendants were suffered to proceed in the com-
mission of the injury, there would be no adequate
remedy at Law. The principal of these are tres-
pass by the defendant's working from his own
mine into the plaintiff's; infraction of copyrights
or patent rights; destruction of deeds or chattels
belonging to the plaintiff, and having a peculiar
value not to be estimated in money (in which
latter case the Court enforces restoration also). 3.
Breach of contract, where there is a contract to ab-
stain from doing a specific thing, and the damage
sustained by its violation cannot be precisely or
conveniently estimated in damages. Thus if a lessee
covenant to spend all his hay on the farm, or
if a person covenant not to carry on a certain trade
within a certain district, a Court of Equity will re-
strain such party from removing the hay or carry-
ing on the trade. There seems to be no reason why
a Court of Law should not exercise the same juris-
diction, and restrain violations of legal rights in all
cases in which an injunction now issues for that
purpose from Courts of Equity. *** To confer
this jurisdiction on Courts of Law, it would not
even be necessary to invent a new form of suit;
little more would be required than to give an ex-
isting writ a wider application of a kind sanctioned
by ancient usage: For in former times a writ of

prohibition was granted not only to prevent excesses of jurisdiction; but to restrain waste. Prohibition of waste lay at Common Law for the owner of the inheritance against tenant by the curtesy, tenant in dower, and guardian in chivalry; and this, says Lord Coke, 'Was an excellent law, for preventing justice excelleth punishing justice."" The present Common Law Commissioners, after citing the above remarks in their Second Report, say, "We concur in the principle of the above remarks (though somewhat modified in their application by recent changes in the law), and of the suggestions founded upon them. It has been acted upon by the legislature, so far as to confer the power of injunction upon the Common Law Courts, in the Patent Law Amendment Act, 1852 (a), and so far as to confer the power of granting prohibitions to judges at chambers, in the County Court Amendment Act, 13 & 14 Vict. c. 61, s. 22."

The sections now under consideration are based

(a) In Holland v. Fox, 23 Law Times, Q. B. 230, which was a case under this act, Lord Campbell, in delivering the judgment of the Court, said, "We conceive the meaning of the legislature, in the enactment relied upon, to have been to vest in the Courts of Common Law, in which actions for the infringement of patent rights may be brought, a power to order an injunction, inspection, and account, heretofore exclusively exercised by the Courts of Equity, so that suitors may not be subject to the vexation, delay, and expense, to which they had been before exposed, in being obliged to go to a Court of Equity for relief by an injunction, then being sent to Law to establish a right, and then being compelled to go back to Equity for redress. The Court in which the action is commenced may now, by its own authority, do complete and final justice between the parties without the complication of judicial power."