ground (land), part of the soil or bed of the Straits of M-, lying and being between &c., and the water or waters covering the same, as beds or a bed for oysters or oyster spat, and to put down and replace, and to dredge, take, and carry away oyster spat and oysters therefrom; And adjudge that the Plt be quieted in the exclusive possession of the oyster fishery or oyster fisheries situate, lying, and being upon or within the said piece or parcel of ground (land), or the water or waters covering the same; And Let the Defts J., K. &c., and each and every of them, their and each and every of their agents, servants, and workmen, be perpetually restrained from using the said piece or parcel of ground (land), water or waters, and every part thereof, as beds or a bed for oyster spat or oysters, and from putting down, or dredging, taking and carrying away any oyster spat and oysters thereupon or therefrom, and from moving or in any manner disturbing the oyster spat or oysters now or at any time lying and being upon or within the said piece of ground (land), water or waters, and from interfering with or in any way hindering the enjoyment, use, or occupation by the Plt and his assigns, and every other the person or persons claiming or to claim under or by virtue of the said will of the said &c., of the said piece or parcel of ground (land), and the water or waters covering the same, as an oyster bed or oyster fishery.-Bulkeley v. Jones, M. R., 23 July, 1856, A. 1560.

For declaration that Plts were entitled against the Deft to the benefit of the decree dated, &c., made in the cause in the pleadings mentioned, establishing their right to toll on coals; with a perpetual injunction to restrain the Deft from disputing, denying, putting in issue, or calling in question in, by, or at, or upon the occasion of the trial of the action in the pleadings mentioned, or any other action, suit, or proceeding whatsoever, the right of the Plts, as owners of, to demand and receive toll, &c.; but without prejudice to any other question which the said Deft might or ought to be at liberty to raise by or at the trial of the said action, &c., according to his pleadings therein, and the due course of law in that behalf; and Deft to pay Plts' costs of suit, see Corp. of Rochester v. Owlett, V.-C. S., 24 Feb. 1853, B. 469; and see Corp. of Rochester v. Lee, 2 D. M. & G. 427, where Plts' right had been established on an issue.

NOTES.

DISCHARGING INJUNCTION.

An application to discharge an injunction must be by motion on notice; and an injunction until answer "or further order" was not ipso facto dissolved by putting in a sufficient answer: Ooddeen v. Oakley, 2 D. F. & J. 158; and see Mollett v. Enequist (2), 26 Beav. 467.

An application by a stranger to the suit who is injuriously affected, might, it seems, be properly made by petition: Bourbaud v. B., 12 W. R. 1024;

10 L. T. 781.

Pending a motion for production of documents, the Court refused to hear a motion to dissolve an ex parte injunction: Storer v. Jackson, 12 Sim. 503. Upon motion to dissolve, a new injunction in terms different from those originally prayed cannot be granted: Burdett v. Hay, 4 D. J. & S. 41. For forms of notice of motion, see D. C. F. 835.

As already stated (sup. p. 525), on applications ex parte for injunctions, there must be uberrima fides; and injunctions obtained ex parte on misrepresentation, suppression of, or omission to bring forward material facts, will on that ground, without reference to merits, be discharged: Hilton v, E. Granville,

4 Beav. 130; Dalglish v. Jarvie, 2 Mac. & G. 236; Wood v. W., 10 Eq. 193, 207; even where Plt swore that he was not aware of the importance of, or forgot, the facts misstated, concealed, or omitted: Dalglish v. Jarvie, sup.; Clifton v. Robinson, 16 Beav. 355; Sheard v. Webb, 2 W. R. 343; and see Thorpe v. Hughes, 3 My. & C. 742; White v. Steinwacks, 19 Ves. 83; Brown v. Newall, 2 My. & C. 558.

And this rule has been applied when the cause in which the ex parte injunction was thus improperly obtained had been transferred to another branch of the Court: Sturgeon v. Hooker, 1 D. & S. 484; or where the injunction had been granted by the L. C. in vacation, with leave to move before a V.-C. to dissolve it: Pinchin v. L. & Bl. Ry., 5 D. M. & G. 851.

Where an ex parte injunction has been dissolved on the ground of concealment or suppression of material facts, the Plt may again apply for an injunction on the merits: Fitch v. Rochfort, 18 L. J. Ch. 458; Joyce, 1267; and where on motion for an injunction or, in the alternative, to continue an interim order, it appears that the interim order was obtained by suppression, the Court may discharge the ex parte order, though there is no cross notice of motion, and, upon evidence, grant the injunction asked for: Boyce v. Gill, W. N. (91) 108; 64 L. T. 824.

A solr who in applying for an ex parte injunction suppressed a fact which he thought immaterial, but which in the result rendered the undertaking in damages worthless, was held personally liable both in costs and under the undertaking: Schmitten v. Faulks, W. N. (93) 64.

A motion to discharge an ex parte injunction as having been obtained by misrepresentation, may be properly made, though the injunction is about to expire: Wimbledon Local Bd. v. Croydon San. Authority, 32 Ch. D. 421, C. A.

An ex parte injunction, granted on an undertaking to amend the writ which was not fulfilled, was dissolved on motion: Spanish Agency v. Spanish Corporation, W. N. (90) 158; 63 L. T. 161.

On dismissal of the action, the injunction is dissolved: Green v. Pulsford, 2 Beav. 75; as also, formerly, on allowance of a demurrer, even with leave to amend: Schneider v. Lizardi, 9 Beav. 461, 468; and see Harding v. Tingey, 10 Jur. N. S. 873; 34 L. J. Ch. 13; 10 L. T. 323; 12 W. R.

817.

The bankruptcy of a sole Plt did not dissolve an injunction previously obtained, but the Deft might apply to have the bill dismissed without costs if the trustee did not adopt the suit within a reasonable time; if this were not done, the injunction would be dissolved: Joyce, 1275; Robson, 595.

An injunction granted on the merits was not in general dissolved by a subsequent amendment of the bill, though the amendment was made without expressly saving the injunction: Harvey v. Hall, 11 Eq. 31; unless the record was changed, e.g., by adding a Plt: A. G. v. Marsh, 16 Sim. 572; or the equity on which the injunction was obtained was displaced or materially altered by the amendment: Kerr, 635.

And though it has been the common practice, it is not necessary for the order giving leave to amend to state that the amendment is made "without prejudice to the injunction": Warburton v. L. & Bl. Ry., 2 Beav. 253; and see Pickering v. Hanson, 2 Sim. 488; Pratt v. Archer, 1 S. & S. 433.

For cases in which an injunction has been granted, with leave to apply to dissolve if circumstances should occur to make its continuance unreasonable, see Ecc. Commrs v. Kino, 14 Ch. D. 213, C. A.; or upon the rendering of an account directed by the order: Macleod v. Jones, 24 Ch. D. 289, C. A.

Delay and acquiescence in an injunction may deprive a Deft of his right to dissolve: Glascott v. Lang, 3 M. & Cr. 451 ; 2 Ph. 310; Feistel v. King's Coll., Camb., 10 Beav. 491; Bell v. Hull & Selby Ry., 1 Ry. Ca. 616; Gordon v. Chelt. Ry., 5 Beav. 229.

A motion to dissolve was not allowed to stand over to enable Plt to crossexamine Deft's witnesses: Normanville v. Stanning, 10 Ha. xx.; and see Morg. 185.

As to the costs of a motion to discharge an injunction, which, as in all proceedings in the High Court, are, by O. LXV, 1, now in the discretion of the Court, see Norton v. Nichols, 4. K. & J. 475; Spottiswoode v. Clarke, 2 Ph. 154; Cory v. Yarmouth Ry., 3 Ha. 593; Dan. 1371.

PERPETUAL INJUNCTIONS.

Injunctions are made perpetual at the trial for the purpose of protecting the Plt when his right has been established in the action by putting an end to harassing and vexatious litigation, and preventing the continuance or repetition of illegal and unauthorized acts; or wherever this form of injunction is applicable to the nature of the relief to which the Plt may be entitled: Kerr, 132; Dan. 1373; Joyce, 1315.

Perpetual injunctions have been granted

-against "setting up a legal estate to overturn a decree for performance of trusts": seo Askew v. Poulterers' Co., 2 Vez. 89; Acherley v. Vernon, 2 Eq. Ca. Ab. 527;

-against repeated litigation of the same question at law: see E. Bath v. Sherwin, Prec. Ch. 261; 4 Bro. P. C. 373;

-to prevent multiplicity of suits in equity in respect of the same subjectmatter: see Sheffield Waterworks v. Yeomans, 2 Ch. 8; Weale v. W. Middlesex Co., 1 J. & W. 358; Ellis v. D. of Bedford, (1899) 1 Ch. 494, C. A., sup. p. 600;

-to quiet possession after verdict, and account of mesne profits: Edwin v. Morris, L. C., 25 Jan. 1747, A. 217; Allen v. Donnelly, 5 Ir. Ch. 236; -against disturbing any person nominated to an incumbency pursuant to the right established by verdict, and staying further proceedings in prohibition: Hodgson v. Benison, L. C., 31 Jan. 1747, A. 310; and see sup. Form 1, p. 721.

Injunctions have also been made perpetual at the hearing to prevent the repetition of acts for which the Deft has no legal authority, as

-in copyright cases: see Macklin v. Richardson, sup. ; Delfe v. Delamotte, 3 K. & J. 584;

--and in trade mark cases: see Cartier v. Carlile, 31 Beav. 292; Collins Co. v. Walker, 7 W. R. 222; Henderson v. Jorss, sup., Sect. VI., Form 5, p. 624;

-in cases of threatened acts of trespass and spoliation in assertion of an alleged right to property: see Lowndes v. Bettle, 12 W. R. 399; Re Davies, 21 Q. B. D, 241.

And see on this head of equitable relief, Kerr, 132–136; Joyce, 1317; and for further instances, see this chapter, passim.

As a general rule, the injunction cannot be made perpetual except at the trial: see Day v. Snee, 3 V. & B. 170; but it may be done on motion by consent: Morrell v. Pearson, 12 Beav. 284; and in Hume v. Beale, 31 Jan. 1838, MSS., the only object of the suit being an injunction, the Court, at Deft's instance, made it perpetual, and stayed all further proceedings in the cause on payment of Plt's costs of suit, though Plt opposed the motion.

A perpetual injunction was not granted in aid of a legal right, unless clear, except by consent, before trial at law: Mayor of Cardiff v. C. W. Co., 4 D. & J. 596; and see this question discussed in A. G. v. Boyle, 10 Jur. N. S. 309; 10 L. T. 290; 12 W. R. 368; sup., Form 4, p. 740.

The fact that the injunction has been acquiesced in, without repetition of the acts complained of, is no objection to the injunction being made perpetual at the hearing: D. Beaufort v. Morris, 6 Ha. 340, 350.

SECTION XXIII.-BREACH OF INJUNCTION.

1. Committal or Attachment for breach of Injunction--O. XLII, 7. WHEREAS by an order dated &c. [recite order for injunction], Now upon motion &c., and upon [if the Deft appears, hearing counsel for the Deft and] reading [if the Deft does not appear, an

affidavit of &c., filed &c., of service of notice of this motion on the Deft] the said order, the affidavit of &c. [enter evidence]; And this Court being of opinion, upon consideration of the facts disclosed by the said affidavit of &c. [or the said affidavits], that the said Deft has been guilty of a contempt of this Court by a breach of the said injunction, doth order that the said Deft A. do stand committed to Holloway prison for his said contempt [or that the Plt A. be at liberty to issue a writ of attachment against the Deft B. for his said contempt].

The order for committal for breach of an injunction should state the affidavit of service of the injunction or restraining order, and either the affidavit of service of notice of motion to commit, or the appearance of counsel for the Deft on that motion: Stephens v. Workman, 11 W. R. 503; 8 L. T. 232; Gooch v. Marshall, 8 W. R. 410.

Since Re Van Sandau, 1 Ph. 605, it is usual to insert in the order an express adjudication on the contempt, as held the better form in a case of special contempt; but such adjudication is not essential: S. C.; and for orders not containing any, see Wilson v. Colson, L. C., 26 Sept. 1850, B. 1210; Truefitt v. Umpleby, V.-C. K. B., 3 July, 1851, A. 894; Belt v. Hustwick, V.-C., 12 July, 1815, A. 1165.

For order to show cause against committal for breach of injunction, see Blanchard v. Cawthorne, 6 Sim. 156.

And for committal for breach, both sides appearing, see St. John's Coll. v. Carter, V.-C., 8 Feb. 1839, B. 173; 4 M. & Č. 497.

2. Order for Committal for various Periods of Persons disobeying Injunction.

WHEREAS by the order dated, 15 July, 1896, it was ordered that the Deft G. P., his undertenants, agents, and servants, should be perpetually restrained from doing, or suffering to be done anything which might interfere with the full and quiet enjoyment by the Plt Wm. Seaward, or his undertenants of the premises in the order mentioned; Now upon motion &c., by counsel for the Plts, and upon hearing counsel for E. M., hereinafter named, and G. S. hereinafter named in person, no one appearing for the Deft, although he was duly served with notice of such motion as by affidavit appears, and upon reading the said order, the following affidavits &c. [enter evidence], an affidavit of &c. being an affidavit of service of the said order on the Deft; This Court being of opinion, upon consideration of the facts disclosed by the evidence aforesaid, that the Deft and the said G. S. have been guilty of a contempt of this Court by a breach of the said injunction, and that the said E. M. has been also guilty of a contempt of this Court in aiding and abetting in such breach; Doth order that the Deft G. P. and the said G. S., and the said E. M., do stand committed to Holloway prison for the said contempt for the following periods, the Deft and the said E. M. for one calendar month and the said G. S. for fourteen days. Deft and the said G. S. and E. M. to pay to the Plts their costs of this motion, to be taxed by the taxing master.-Seaward v. Paterson, North, J., 9 Feb. 1897, A. 464; S. C., C. A. 16 Feb, 1897; (1897) 1 Ch. 545.

3. Order condoning Contempt-Deft paying Costs of Motion. THIS Court being of opinion that the Defts have committed (been guilty of a contempt of this Court by) a breach of the said injunction, doth order that the Defts, the Mayor &c., do pay unto the Plts their costs of this motion, to be taxed &c. (but at the suggestion of the Plts' counsel this Court doth not make any further order thereon).— Bigg v. Mayor, &c. of London, V.-C. B., 17 Nov. 1870, A. 2828; and see Witt v. Corcoran, V.-C. B., 12 Nov. 1875, B. 1798; 2 Ch. D. 69.

4. Sequestration against Local Board for Breach of Injunction.

RECITAL as in Form 1.-"And this Court being of opinion, upon consideration of the facts disclosed by the said affidavits, that the Local Board of Health of L-, in the county of &c., have been guilty of a contempt of this Court by a breach of the said injunction, doth order that a commission of sequestration do issue directed to certain commrs to be therein named to sequester the personal estate, and the rents, issues, and profits of the real estate of the said Local Board of Health of &c., until the further order of this Court."Deft W., as the clerk of the said Local Board, to pay Plt's costs of the application.-Heath v. Wallington, V.-C. W., 17 Jan. 1867, A. 210.

In this case the local board were sued by their clerk, as public officer, and were not named as the Defts in the record.

For similar order, see Spokes v. Banbury Board of Health, V.-C. W., 25 Nov. 1865, B. 2452; 1 Eq. 42. In this case the local board were made Defts, and the bill had before the hearing been dismissed against the clerk. See also Goldsmid v. Tunbridge Wells Commrs, M. R., 1 Aug. 1867, A. 2538.

5. Sequestration against Railway Company for breach of

Undertaking.

WHEREAS by an order &c., the Defts, the M. &c. Co. by their counsel, undertaking &c. (recite the order); Now, upon motion this day made &c., who alleged that it appears by the affidavit of &c., that the Defts have not complied with their said undertaking, by permitting the Plts to use their said railway and conveniences connected therewith from C. to S., and upon hearing counsel for the Defts, and reading the said affidavits and the affidavit of &c.; And this Court being of opinion that the Defts, the M. &c. Co., have committed (been guilty of) a contempt of this Court in not complying with their said undertaking to &c. in the said order dated &c. mentioned, doth order that a commission of sequestration do issue &c. [Form 3].-G. N. Ry. v. Manchester Ry., V.-C. K. B., 19 July, 1850; Aug. 1850, Order varied, A. 1153, 1778, 1785.

See also 4.-G. v. G. N. Ry., V.-C. K. B., 12 Nov. 1850, 4 D. & S. 89;