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Thus in the case to which we have previously alluded, the owner of a certain property had agreed to sell it, and a question arose whether the minerals under a portion of the property were his at all, or whether they belonged to the lord of the manor (1).
In another case a large part of the property contracted to be sold consisted of heath land, and an objection was raised that the would-be vendor had no right to the soil of the heath land, but only a right of pasturage over it. Under the old system in both these cases an action or suit for specific performance would have been necessary, but both were decided in a cheap and summary manner by a summons under the Vendor and Purchaser Act, 1874 (2).
The practice is to take out an originating summons, which is to be intituled in the matter of the contract and in the matter of the Vendor and Purchaser Act, 1874, and it is not unusual for the parties to agree upon a short written statement of facts which is signed by the solicitor for the parties, and a copy of which is left at chambers either before or after the return of the summons (3). The summons may be heard in chambers, or, as is the more usual practice, adjourned into Court. Jessel, M.R., adopted the practice where the title was good and the purchaser desired it, of delivering judgment in open Court, though the question had been argued in chambers (4).
The time for appealing is twenty-one days from the date of simple refusal, or from the date of the perfection of the order (5).
The Court has jurisdiction under this section not only to decide any question of the classes enumerated in the section, viz. all questions arising out of the contract, except such as affect the existence or validity of the contract itself, but also to make any order which would be just as the natural consequence of its decision. This principle was established by the first of the cases mentioned above (6), where the Court ordered payment of interest on the deposit, and the purchaser's costs of investigating the title.
(1) In re Hargreaves and Thompson's Contract, 32 Ch. D. 454, and see Re Terry and White's Contracts, 32 Ch. D. 14.
(2) In re Burroughs, Lynn and Sexton's Contract, 5 Ch. D. 601.
(3) Daniell's Chancery Practice, p. 1382.
(*) Coleman v. Jarrow, 4 Ch. D.
(5) In re Blyth and Young, 13 Ch. D. 416.
(6) In re Hargreaves and Thompson's Contract, 32 Ch. D. 454. In re Bryant and Barningham's Contract, 44 Ch. D. 218, and notes on question there raised, 25 Law Journal, 616.
The reader who desires further information on the difficult Reference subject of specific performance is referred to Fry on Specific Performance, 2nd ed., passim; Seton on Decrees, p. 1285, et seq.; Bowen on Specific Performance; notes to Cuddee v. Rutter ; Lester v. Foxcroft; Seton v. Slade, White and Tudor's Leading Cases; notes to Brett's Leading Cases in Equity, p. 94; Dart's Vendors and Purchasers, 6th ed., p. 1103, et seq.; Clerke and Humphreys on Sales of Lands, p. 351, et seq. (1).
(1) The practice on motions for judgment in specific performance actions was considered in the two recent cases of De Jongh v. Newman, 56 L. T. (N.S.) 180, and Eagley v. Searle, 56 L. T. (N.S.) 306. Holmes v. Shaw, 52 L. T. (N.S.) 797, Kay, J., had held that upon a motion for judgment in default of pleading in an action for specific performance
of an agreement, the agreement must
It has been deemed advisable to consider the law with reference to injunction in that portion of this work which is concerned with the business specially assigned to the Chancery Division. True it is that an injunction may be granted by any division of the High Court, but it is also equally true that applications for injunction are almost always made to the Chancery Division, and that the rules upon which the Court proceeds in granting or refusing injunctions are rules which have been laid down almost exclusively in Courts of Equity. In establishing these rules the Court proceeded on the principle of never abandoning any jurisdiction which it had once obtained, and at the same time of steadily increasing its jurisdiction in accordance with the various requirements of advancing society and the alterations which were made from time to time by the Statute law.
An injunction was formerly a writ issuing by order and under seal of a Court of Equity, but now by Order L., r. 11, the writ of injunction is abolished, and "an injunction shall be by a judgment or order, and any such judgment or order shall have the effect which a writ of injunction previously had." So that an injunction may now be defined as a judicial process, whereby a party is required to do a particular thing, or to refrain from doing a particular thing (1). Its function is, however, as pointed out by Mr. Kerr, far oftener preventive than restorative (2).
kinds of injunctions.
Injunctions at the present day are either provisional or Different "interlocutory," as they are called (i.e. injunctions granted in the course of proceedings until the hearing of the action, or until further order), or final or perpetual injunctions concluding rights of the parties which form part of the judgment made at the hearing of the action.
Another division of injunctions to which allusion has been previously made is that they are either prohibitive, i.e. prevent a particular thing from being done, or mandatory.
The principle upon which the Court proceeds in granting a mandatory injunction is not to order the performance of a positive act, but to direct that things should be restored to their former condition. As a general rule the jurisdiction is exercised with caution, comparative convenience and inconvenience are taken into account, and if pecuniary compensation be sufficient, while the inconvenience to the other party would be serious, the Court will not grant a mandatory injunction. Unreasonable delay is fatal to the application, but if the act complained of is continued after clear and distinct notice, the power of the Court to restrain the offender will be more freely exercised (1).
The Court has said over and over again that no advantage is to be gained by hurrying on work. "Whatever a defendant erects after the commencement of the action or after notice that an action will be brought is subject to the control of the Court" (2).
The following are instances in which mandatory injunctions have been granted, viz. against allowing obstructive buildings to remain, compelling the removal of obstructions to the flow of water for the use of flues, to the right of navigating a canal, against allowing pipes to remain on land (3).
"The Court will rarely interfere to pull down a building which has been erected without complaint" (4).
of Judica ture Act.
The 25th section of the Judicature Act, 1873, sub-sect. 8, Provisions provides that "a mandamus or an injunction may be granted, or a receiver appointed by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made, and any such order
() Kerr on Injunction, 3rd ed., p. 50, et seq., where the authorities are collected.
(2) Smith v. Day, 13 Ch. D. 652. (A mandatory injunction is seldom granted until the plaintiff has completely established his right, un
less the injury will be irreparable, or
(*) Per Thesiger, L.J., Gaskin v.
may be made either unconditionally, or upon such terms and conditions as the Court shall think just" (1).
There was no inconsiderable amount of uncertainty as to what was the precise effect of these sweeping words (2), but their meaning has been recently interpreted by several decisions of the Court of Appeal (3), and the great principles upon which the Courts now proceed in granting injunctions may now be considered as settled. It must be just as well as convenient that the Court should interfere by injunction, and what is just and right must be decided not by the caprice of the judges, but according to sufficient legal reasons or on settled legal principles (4).
"All that was done," said the Court of Appeal, "by this section" (sect. 25, sub-sect. 8, Judicature Act, 1873), “was to give to the High Court power to give a remedy which formerly would not have been given in that particular case, but still only a remedy in defence of, or to enforce rights which, according to law, were previously existing and capable of being enforced in some or one of the different divisions which are now united in the High Court. The sole intention of the section is this, that where there is a legal right which was, independently of the Judicature Act, capable of being enforced either at law or in equity,
(1) The section goes on to provide that "if an injunction is asked either before, or at or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted if the Court shall think fit, whether the person against whom such injunction is sought, is or is not in possession, under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable." See Loundes v. Bettle, 33 L. J. Ch. 451; Standford v. Hurlstone, 9 Ch. 116; Kerr on Jurisdiction, 115 et seq. (3rd edition); as to the old practice: Anglo-Italian Bank v. Davies, 9 Ch. D. 275, 286; Smith v. Brown, 48 L. J. Ch. 694.
(2) Beddow v. Beddow, 9 Ch. D. 89; Hedley v. Bates, 13 Ch. D. 498; Aslatt v. Corporation of Southampton, 16 Ch. D. 143; Stannard v. Vestry of St. Giles, Camberwell, 20 Ch. D. 190. (3) Day v. Brownrigg, 10 Ch. D.
294; Gaskin v. Balls, 13 Ch. D. 324; North London Railway Co. v. Great Northern Railway Co., 11 Q. B. D. 30.
(4) In old days the granting an injunction varied to a great extent with the disposition of the Lord Chancellor for the time being, so that it was quaintly said that the jurisdiction changed like the length of the Lord Chancellor's foot. Now, however, the jurisdiction is regulated by "settled principles." The vir bonus," according to whose arbitrium the law is to be administered, is qui præcepta patrum qui leges juraque servat. A great orator and philosopher has well pointed out the evils of an "Unprincipled facility of change · as often and as much and in as many ways as there are floating fancies and fashions.' The whole chain and continuity of the commonwealth would be broken. No one generation would link with another; men would become little better than the flies of summer." -Burke on the French Revolution, p. 110.