Equity, as to make these applications by no means free from hazard. It is to be observed also, that this application for an ex parte injunction must be made with extreme promptness; and where there has been any delay, or where there exists any serious doubt, the Court will not grant such injunction but make the plaintiff give notice of the motion to the opposite party (m).

Whether the application for an injunction is Discretion of made at the hearing, or during the progress of the Court. suit, great latitude and discretion is allowed to the Court in dealing with it: but, as might be expected, that discretion is used more carefully in applications of the latter kind.

The rules by which Courts of Equity are guided, Rules, in granting or refusing injunctions at the hearing, as well as interlocutory injunctions, will be found treated of hereafter.

The power of granting injunctions similar to Act. those above mentioned has been given to the Courts of Common Law, by the sections 79 to 82 of this Act; and the manner of proceeding under them will be fully pointed out afterwards (n).

Having thus briefly pointed out the nature of injunctions, and the mode of applying for them in Equity, it is proposed, after making a few remarks upon the jurisdiction of the Courts, to consider the

that are material; and, therefore, where a plaintiff had innocently omitted to state circumstances, which turned out to have a material bearing upon his rights under an act of parliament, the injunction was dissolved, and see post.

(m) Anwyl v. Owens, 22 L. J., Chanc., 995; and see post, Ex parte Injunctions.

(n) See post, p. 103.

rules and principles by which a Court of Equity is guided in dealing with injunctions at the hearing; and then, assuming that those rules and principles will be adopted by the Courts of Common Law, to consider the further requisites imposed by sections 79 to 82. The rules and proceedings upon applications for interlocutory injunctions will then be similarly treated.

II. JURISDICTION OF COURTS OF EQUITY IN

GRANTING INJUNCTIONS.

in Equity.

1. Injunctions

in Form;

1. UNDER this head of jurisdiction it may be re- Jurisdiction marked, though, perhaps, such remarks more properly belong to the head of interlocutory injunctions, Prohibitory that great doubts have arisen of late years, as to Mandatory how far the Court will, upon a motion for an in- in Effect. terlocutory injunction, grant an injunction prohibitory in form, but mandatory in effect; that is, of such a nature that in order to comply with it, the defendant must do some act. Thus where a person is by injunction restrained from keeping a wall out of repair, he is thereby practically compelled to put it in repair.

The doubt in question was first raised by Lord Brougham, C., in the well-known case of Blakemore v. The Glamorganshire Canal Company, 1 Myl. & K. 154, 181. Prior to the decision of that cause, the jurisdiction had been exercised without question in several cases. Thus in Robinson v. Lord Byron (a), a party was restrained from maintaining and using his flood-gates, &c. so as to prevent water flowing in regular quantities to the plaintiff's land; and in Lane v. Newdigate (b), an order specifically to repair the banks of a canal, and

stop-gates, &c. was refused; but the effect was obtained by an injunction to restrain impeding the plaintiff from navigating and using the canal by continuing to keep the canal, banks, &c., out of repair, by diverting the water, or preventing it, by the use of locks, from remaining in the canal, or by continuing the removal of a stop-gate. The same jurisdiction had also been exercised, prior to the decision in Blakemore's case, by the Vice-Chancellor of England (c). There a lessor having wrongfully begun to build on some ornamental ground, he was restrained "from permitting such part of the said buildings as have already been erected on the said plot of ground from remaining thereon." Again in Spencer v. London and Birmingham Railway Company (d), where a railway company had wrongfully stopped up a street, an injunction was granted against them, and the Vice-Chancellor observed, that "the power of the Court to grant that species of injunction which Lord Eldon granted, i. e. restraining a party from allowing a thing to continue, and which has the effect of making him take some active measures, has been since recognized and acted on (e). And it has been said by Lord Lyndhurst, that "there are cases in which the Court will do indirectly what it cannot do directly. A

(c) Rankin v. Huskisson, 4 Sim. 13.

(d) 8 Sim. 193.

(e) See also Earl of Mexborough v. Bower, 7 Beav. 127, 133, where a tenant, who had wrongfully opened a communication between some mines, was restrained from continuing to keep the same open. Whittaker v. Howe, 3 Beav. 383; Greatrex v. Greatrex, 1 De Gex & Sm. 692; and see Warden of Dover v. South-Eastern Railway Company, 21 L. J., Chanc., 886.

case commonly cited for that purpose is the case of a nuisance. The Court would not compel a party, who had erected a wall to the nuisance of another, by any direct order to pull down the wall; but the Court can make an order requiring him not to continue the nuisance, which would have the effect of compelling him to pull down the wall (ƒ).”

On the other hand, the doubt expressed by Lord Brougham in Blakemore's case, ubi supra, was adhered to by him in Milligan v. Mitchell (g); and a similar doubt was expressed by Wigram, V. C., in a case where there was a dispute arising out of a charter-party (h); and in a very late case, Parker, V. C., came to the conclusion that he had no power to grant such an injunction (i). It would seem, then, that the preponderance of authorities is greatly in favour of granting such injunctions, and it is apprehended that they would in certain cases be granted at Common Law under this Act. The words of the section 79 are very comprehensive, as the plaintiff may claim an injunction against the repetition or continuance of a breach of contract or other injury. Now it is difficult to see how the

(f) Hills v. Croll, 1 De Gex, Mac. & G. 628, n. (a). In a very recent case, Wood, V. C., granted a mandatory injunction of a similar kind in a case of contract. Foster v. Birmingham, Wolverhampton and Dudley Railway Company, April 20, 1854. (g) 1 Myl. & K. 446, 452.

(h) Lidgett v. Williams, 4 Hare, 456.

(i) Bradbury v. Manchester, Sheffield and Lincolnshire Railway Company, 15 Jur. 1167. See also Lumley v. Wagner, 1 De Gex, Mac. & G. 604; where Lord St. Leonards expressed some doubt as to the exercise of this jurisdiction.