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Specific perform



underlessee that he was prevented by the terms of his lease from building so as to obstruct the sea view. On this assurance, the underlease was taken, and villas were built, which were afterwards acquired by a Mr. Piggott. Stratton then went to the lessor and surrendered his lease for the purpose of getting rid of the restrictive covenant. The Court decided that, as what was said by Stratton was intended to be understood, and was in fact understood, as an assurance that he had no power to obstruct the sea view during the currency of the lease, the obligation of the covenant still remained (1).

An injunction is sometimes granted to restrain the breach of a negative stipulation when specific performance of the contract would not be granted. The leading case on this point is Lumley v. Wagner (2), decided by Lord St. Leonards in 1852.

In that case the contract was that Mdlle. Wagner would sing three months at Her Majesty's Theatre in London. That was the substantial and affirmative portion of the contract between the parties. The negative portion of the contract was that she would not "use her talents at any other theatre, nor in any concert or reunion, public or private, without the written authorization of Mr. Lumley." Of course, as was pointed out in a subsequent case, Mdlle. Wagner could not be always singing, and therefore the contract necessarily stated some limits as to how often she was to sing, but when she did sing during the three months she was to sing at Her Majesty's Theatre; the negative terms were that during the three months she would not sing anywhere else than at Her Majesty's Theatre.

The Court proceeded on the principle that the affirmative and negative stipulations of the agreement were co-extensive, and formed in truth but one contract, and granted the injunction to prevent the violation of the negative stipulations.

The Court will not interfere by injunction to restrain the breach of a contract for the sale and delivery of chattels which it could not specifically perform (3); but in a recent case (4) the Court granted an injunction to enforce an express negative stipulation not to sell to any other manufacturers, although the contract was one of which specific performance would not have been granted.

A trustee may not use his powers except for the legitimate purposes of the trust, and he will be restrained by injunction

(1) Piggott v. Stratton, considered in Spicer v. Martin, 14 App. Cas. 12. (2) 1 De G. M. & G. 604.

(3) Fothergill v. Rowland, 17 Eq.


(*) Donnell v. Bennett, 22 Ch. D. 835.


from any improper use of his powers. If a breach of trust be threatened by a trustee it is the duty of another trustee to apply for an injunction to restrain him. A mere stranger to the trust cannot, however, bring an action. In a well-known case, this principle was carried still further, and an injunction was granted restraining a trustee and a purchaser from completing a contract which contained an unnecessarily depreciating condition as to title, but the law has now been materially altered on this point (1).

The subject of waste has already been considered (ante, pp. 27 Waste. to 29). A particular and unusual form of waste called "ameliorating waste," that is waste which so far from doing injury to the inheritance improves it, occupied the attention of the Court in a case which was decided in 1878. In that case a lessee considered that it would be beneficial to convert certain store buildings which had fallen into disrepair into dwelling houses, which would much increase their value, and was proceeding to so convert them. The lessor applied for an injunction, but the House of Lords considered that though that which had been done might in the eye of common law be waste, still it was that kind of waste which fell within the denomination of ameliorating waste, and that an injunction must be refused.

It has been decided (2) that where an illegal act such as interference with a public highway or a navigable stream tends to the injury of the public, the Attorney-General may maintain an action without proof of any actual injury. The Public Health Act, 1875, however, confers none of the powers of an Attorney-General on a local board, and it cannot take proceedings on its own account unless it is specially injured (3).

An application is often made for service of notice of motion along with the copy of the writ. This is done because it would be irregular that notice of motion in an action should be served on a defendant before he had appeared to the writ.

The following is the usual form of notice of motion for an injunction:

Take notice that this Court will be moved before his lordship, Mr. Justice on Tuesday the

day of

next by

as counsel on the part of the plaintiff, that the defen-
dant B., his officers, servants, and workmen, etc., may be re-
strained by the order and injunction of this Honourable Court

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Notice of motion.

Form of order.

from continuing to erect or raise the walls or building now in
course of erection by the defendant to the of plaintiff's
premises, situate at
to a greater height than the said
wall or building now is, until the trial of this action or further

And also take notice that by special leave of the Court this notice is served together with the writ of summons in the action.

Dated, etc.

The form in which the Court issues its injunction may be illustrated by an order restraining equitable waste.

Upon motion this day and upon reading the affidavit of A. B. and the affidavit of C. D., this Court doth order that the defendant D., her servants, workmen, and agents, be restrained from cutting down any timber or other trees growing on the estate in the pleadings mentioned which are planted or growing thereon for the protection or shelter of the several mansionhouses belonging to the said estate, or for the ornament of the said houses, or which grow in lines, walks, vistas or otherwise for the ornament of the said houses, or of the gardens, or parks, or pleasure-grounds thereto belonging; And also that the defendant, her servants, workmen and agents be restrained from cutting down any timber or other trees, except at seasonable times, and in a husband-like manner; and likewise from cutting down saplings and young trees not fit to be cut as and for the purpose of timber until further order (1).

An injunction may be obtained either ex parte, i.e. without notice, or on notice to the opposing party. If the application be made ex parte, there must be full disclosure to the Court, and if the order of the Court has been obtained by misrepresentation, it may be dissolved at once, even though it is about to expire (2).

Except in cases where the right to the injunction is perfectly clear, the applicant for the injunction is put on terms to abide by any order that the Court may afterwards make as to damages (). An undertaking as to damages is not confined

(1) Seton on Decrees, p. 185.

(2) Wimbledon Local Board v. Croydon Rural Sanitary Authority, 32 Ch. D. 421. See as to giving notice of injunction, Re Bryant, 4 Ch. D. 98; Re Bishop, 13 Ch. D. 180.

(3) Seton on Decrees, 173, 174: Whenever the usual ndertaking as to damages is given and the plaintiff' ultimately fails, an inquiry as to

damages may be directed and will be directed in the absence of special circumstances, even though the plaintiff was not guilty of any misrepresentation, suppression or other default in obtaining the injunction: Griffith v. Blake, 27 Ch. Div. 474, 477, dissenting from the dictum of the late Sir George Jessel in Smith v. Day, 21 Ch. D. 421.


to damages sustained by the person against whom the injunction is granted (1).

The Court has jurisdiction to give damages in addition to or substitution for injunction (2).

to authorities.

The reader who desires further information on the extremely Reference extensive subject of Injunction, is referred to Kerr on Injunction, passim; Joyce on Injunctions; Seton on Decrees, p. 171, et seq.; Brett's Leading Cases in Equity, p. 324, et seq.

Before leaving the subject of injunction we must glance briefly at the law as to interference by the Court with clubs. The general principle is that the Court will not interfere with the decision of the committee of a club. The only questions which it will determine are whether the rules of the club have been observed, whether anything has been done contrary to natural justice, and whether the decision has been contrary to natural justice (3).

In a very recent case the Court declined to grant an injunction against the proprietor and secretary of the committee of a proprietary club, on the ground that the member had no right of property in the club (4).

(1) Tucker v. New Brunswick Trading Co. of London, 44 Ch. D. 249.

(3) See Sayers v. Collyer, 28 Ch. D. 103, where it was held that the repeal of Lord Cairns' Act (21 & 22 Vict. c. 27) by 46 & 47 Vict. c. 49, has not affected the jurisdiction of the Court in this respect: Dreyfus v. Peruvian Guano Co., 43 Ch. D. 316.

(3) Fisher v. Keane, 11 Ch. Div.

353; Labouchere v. Earl of Wharn-
cliffe, 13 Ch. Div. 346: Dawkins v.
Antrobus, 17 Ch. Div. 615.

(*) Baird v. Wells, 44 Ch. D. 661,
following Forbes v. Eden, Law Rep.
1 H. L. Sc. 568, 581, and Rigby v.
Connol, 14 Ch. Div. 482, 487; and
see as to the law with regard to clubs,
Club Law by J. D. Daly.


Result of


Marriage articles.



The principle upon which the Court proceeds in rectifying instruments is to carry out the intention of the parties (1).

The result of the authorities on the subject has been summed up by a well-known text-writer, as follows: "There can be no rectification if the mistake be not mutual or common to all parties to the instrument, or if one of the parties knew of the mistake at the time he executed the deed. Where one party only has been under a mistake, while the other, without fraud, knew what the character of the deed was, and intended that it should be, the Court cannot interfere, for otherwise it would be forcing on the latter a contract he never entered into, or depriving him of a benefit he had bona fide acquired by an executed deed. Rectification can only be had where both parties have executed an instrument under a common mistake, and have done what neither of them intended, if mistake on one side may be a ground for rescinding, but not for correcting or rectifying an agreement" (2).

Allusion has already been made (ante, p. 513) to Marriage Articles. Questions of rectification sometimes arise when there are discrepancies between the articles and the settlement. In such cases the Court proceeds upon the following principles.

When both the marriage articles and the marriage settlement are made before the marriage, the settlement will not in general be controlled by the articles, the Court proceeding on the principle, that as "all parties are at liberty, the settlement is to be taken as a new agreement" (3).

Evidence is however admissible, to shew that the final agree

(1) All causes and matters for the rectification, or setting aside, or cancellation of deeds or other written instruments, are assigned to the Chancery Division of the High Court of Justice, by the 34th section of the Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66).

(2) Kerr on Mistake, 2nd ed. p. 198.

(3) Legg v. Goldwire, 1 White & Tudor's Leading Cases in Equity, vol. i. p. 17, last edition. See Bold V. Hutchinson, 5 De G. Mac. & G. 558, and as to a letter containing a promise to settle property, being superseded by a subsequent agreenent for a settlement: Re Badcock. Kingdon v. Tagert, 17 Ch. D. 361, and cases there referred to.

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