a sufficient compensation (a). And Lord Redesdale (speaking of enforcing specific performance of contracts, the principle involved in which is the same as in that of restraining them) remarks, "This, however, extends only to contracts, of which a specific performance is essential to justice; for, if damages for non-performance are all that justice requires, as in the case of a contract for stock in the public funds, Equity will not interfere. In other cases, where compelling a specific act is the only complete remedy for an injury, and the Courts of Law can attempt to give this remedy only by giving damages, the Courts of Equity will interfere to give the specific remedy." 2. As regards Torts. An injunction would be granted, on the above principle, in cases where, as in cutting down timber, no amount of damages would be a compensation. The principle has been clearly illustrated by Turner (Lord Justice), in The Attorney-General v. Sheffield Gas Consumers' Company (b). He there says, "The first question that seems to me to be of importance in the present case is, the general principle on which this Court interferes in cases of this description, and I take that principle to be, the inadequacy of the remedy which the Law gives in cases of nuisance. * The same principle, therefore, must guide the interference of the Court in cases of public and private (a) Dollfus v. Pickford, Week. Reporter, 220; see also Wood v. Sutcliffe, 2 Sim., N. S., 163; and Weale v. West Middlesex Water-Works Company, 1 Jac. & W. 370. (b) 22 L. J., Chanc., 811; 17 Jur. 677, S. C.; see also per Lord Eldon in The Attorney-General v. Nicholl, 16 Ves. 342. 92 Difficulty of ascertaining Damages. DIFFICULTY OF ASCERTAINING DAMAGES. nuisance, and that principle is this,-whether the extent of the damage and injury be such, as that the Law will not afford an adequate and sufficient remedy. It seems to me that the same principle which regulates the Court in those cases in which its jurisdiction is more generally applied, must govern the present case. For instance, in the case of specific performance, the jurisdiction of this Court is founded on the inadequacy of the remedy at Law. In the case of specific performance of a covenant, it is not every covenant which this Court will perform, but only those cases of covenant in which the performance of the covenant is essential. So again, in the case of a trespass, and so I take it to be in the case of a nuisance." Thus, where the plaintiff was a millowner, and the defendant was one of several millowners higher up the stream, all of whom were polluting the water; and the plaintiff had allowed several to do so on paying a rent by way of compensation, the Court held that the plaintiff had shown that the injury could be compensated by money, and the injunction was refused (c). Under this head also may be classed those cases where an injunction will be granted, because from the nature of the case it is impossible adequately to ascertain the amount of damage. For instance, in the case of infringement of a copyright, the legal right cannot, generally, be made effectual by any action for damages: as if the work is pirated, it is impossible to lay before a jury the whole evidence (c) Wood v. Sutcliffe, 2 Sim., N. S., 163. as to all the publications which go out to the world to the plaintiff's prejudice (d). So also it has been laid down, that mischief may be irreparable, because it may be impossible that the Court or the jury could ever measure the damages, and that any calculation of the amount would be merely speculative (e). repeated Again, another class of cases may be here re- To restrain ferred to, which are brought within the above- Litigation. mentioned principle by the conduct of the defendant. For instance, where the defendant acts vexatiously, and in such a manner as to render repeated litigation necessary. Therefore, where a deed of partnership had been entered into for the carrying on a theatre, and the case alleged was, that all the covenants had been violated de die in diem, and that such conduct of the defendants might be persevered in; Lord Eldon, in giving judgment, observed, "It is said that the remedy is by repeated actions of covenant, and it is supposed that juries may have feelings of vengeance that may subject the defendant to such damages as may produce the full object of the plaintiff; but a Court of Equity has power to restrain and enjoin; a power in many instances recognized by the Law as resting on that (d) Wilkins v. Aiken, 17 Ves. 422. (e) East Lancashire Railway Company v. Hattersley, 8 Hare, 72, 90; see also Shrewsbury and Birmingham Railway Company v. London and North Western Railway Company, 3 Mac. & Gord. 70; 20 L. J., Chanc., 90, S. C.; where an interlocutory injunction to restrain the breach of a traffic agreement between two railway companies was refused, because the damages could be calculated to a nicety. Cases under this head will be found chiefly to arise upon applications for interlocutory injunctions. General very circumstance, that without such an interposi- We will next consider the general rules which, subject to the principles above stated, guide a Court of Equity in exercising that "latitude and discretion" to which we have already alluded. It has always been laid down that this jurisdiction should be exercised with great caution. And, as has been observed by Mr. Justice Story, "The Courts of Equity constantly decline to lay down any rule which shall limit their power and discretion as to the particular cases in which special injunctions shall be granted or withheld." It will be convenient, however, to state some of the leading rules which generally guide Courts of Equity in the exercise of a sound discretion; as such rules, so far as they are applicable, will probably be adopted by the Courts of Common Law in the exercise of a like discretion. Some of the cases cited in illustration of the rules will be found to be cases of specific performance; but the principle upon which Courts of Equity grant injunctions is, in (f) Waters v. Taylor, 2 V. & B. 299, 302. (g) Coulson v. White, 3 Atk. 21. many cases, the same as that upon which they decree specific performance; and it follows that many of the rules which guide the Courts in both cases are the same. First. The Court will not interfere, where the 1. Fraud or Illegality. plaintiff's case is in any way tainted with fraud or illegality. Therefore, where the plaintiff sought an injunction to protect a work, in composing which he himself had been guilty of piracy, the Court refused to interfere (h). So where the work was of an immoral or profane nature (i). Again, where the plaintiff has been guilty of a fraud on the public, as by representing an article to be patent, when in truth it was not so (k), or as having been compounded by some particular individual (1), the Court has refused (the application being made during the progress of the suit) to interfere until the right had been tried at Law; but, looking to the expressions used in giving judgment in those cases, it would seem doubtful how far the result would have been different, if the application had been made after the right had been tried at Law. Secondly. The Court will not grant an injunc- 2. Oppres (h) Cary v. Faden, 5 Ves. 24. (i) Southey v. Sherwood, 2 Mer. 435; Lawrence v. Smith, Jac. 471; and see cases cited in Sharp v. Taylor, 2 Phill. 812; and Reynell v. Sprye, 1 De Gex, Mac. & G. 660. (k) Flavell v. Harrison, 22 L. J., Chanc., 866. In this case the plaintiff had never got a patent for his "Patent Kitchener," and the Court refused an injunction to restrain the defendant from selling similar articles under the same name and description; but reserved the motion for six months, with liberty to the plaintiff to bring an action at Law. (1) Pidding v. Howe, 8 Sim. 477; Perry v. Truefitt, 6 Beav. 66. sion. |