both in real and personal estate, and even mere expectancies of heirs were and are still frequently supported (Spence Eq. Jur. 865), for such transfers are considered, either as a permission to act as the agent or attorney of the other in recovering the matter transferred, even though there is no express power of attorney, or as a contract entitling the assignee to sue in equity in his own name, and enforce the right directly against the person withholding it, whether such person has assented or not, making the assignor (except where his interest was only equitable, or has been completely assigned,) a party to the proceedings, as well as the person against whom relief is sought : (Sto. 1040 to 1057.) Where, however, the assignee has no difficulty in recovering the right at law, or can better do so there by suing in the assignor's name, he should not apply to the Court of Equity (Sto. 1057 b.); and assignments of contingent interests, possibilities and expectancies, are treated in equity as contracts to assign as soon as the interest becomes vested, and will then be enforced, and any thing said or done with the design of appropriating a chose in action, or right, in favour of another, amounts to an equitable assignment; but notice of the assignment should immediately be given to the debtor or person in possession of the right or property, whether as trustee or otherwise, or a subsequent assignee by giving notice may obtain priority, or the debt, right or interest, may be previously paid or discharged (a), which, after notice, could not be done, to the injury of the assignee (Sto. 1047.)

Not only is the assignee of a chose in action entitled to all the remedies of the assignor, but takes also subject to all the equities it was liable to in his hands, for the assignor cannot generally give more than he possesses; so that any vice which affected the property in the assignor's hands will also affect it in the assignee's, whatever may have been the consideration for the assignment, and any defence which could be pleaded at

(a) Or released, Stacks v. Dobson, 22 L. J. 884, Ch.

law against an action brought by the assignor can generally be still pleaded, although the action is for the benefit of the assignee; and so if the assignee seeks equity, he can only be relieved, subject to the original equities, although he had no notice of them. An executor, however, would not be allowed to set off against an assignee of a legacy a debt incurred without reference to such legacy : (Spenc. Eq. Jur. 863 to 865.)

A person who agrees to sell or demise real property undertakes thereby that he has a right and title to do so, and must show the same if required; but after a conveyance the purchaser, &c., must generally rest upon the covenants in his deed, if the title turns out bad, unless there is fraud.

In purchases of goods, caveat emptor applies, and without there is a warranty either express or implied, or a fraudulent representation as to the right to sell, and the title is bad, the purchaser cannot (after paying his purchase-money) have any relief; the transaction itself may imply a warranty of title, when it does not of quality. Pawnbrokers only impliedly warrant, that the things they sell are forfeited pledges. Tradesmen, however, are generally considered as impliedly warranting, that the things they sell are proper for the purposes for which they are sold, as in the case of victuallers, that their goods are wholesome: (11 Jur. 827.)

Before a party to a contract, can compel the other side to observe their part, he must have performed such portions on his as are precedent, or have attempted to do so. Thus a vendor should have either executed the conveyance or have offered to do so, before bringing an action for the purchase money; and a vendee cannot maintain proceedings for a breach of the contract, before tendering a conveyance and the purchase money, unless something has occurred which has waived this. If, however, the terms of an agreement, either through incapacity or negligence, have been unfulfilled only in particulars not of the essence of the contract, or a person having performed a valuable portion of an

agreement is by accident, without any blame on his part, hindered from performing the remainder, and is not in statu quo as to the part performed, equity will still decree a specific performance, provided compensation can be given for the injury (if any) which may have occurred from the non-performance; and where a purchaser applies, and the terms have not been reasonably complied with on the part of the vendor, equity will decree the purchaser a specific performance as far as possible with compensation; and when there has only been a slight and unimportant misdescription of the property, the agreement will be enforced with a just compensation: (Sug. V. & P. 261.)

INJUNCTION.

The jurisdiction of interfering to protect the rights of parties, by the writ of injunction, is conferred upon the Courts of Common Law, by the 79th and subsequent sections of the Common Law Procedure Act, 1854.

An injured party entitled to maintain an action for breach of contract or other injury, may claim a writ of injunction in the Common Law Courts, against the repetition or continuance of such breach of contract or other injury, or the committal of any breach of contract or injury of a like kind, arising out of the same contract or relating to the same property or right; the mode is clearly pointed out in the statute and needs no comment (sect. 79, 82.)

The most common sort of injunction in equity, is sometimes called the remedial writ of injunction (Story Eq. Jur. 861), and is classed among the preventive remedies or protective equity.

Among the most ordinary objects of the remedial writ of injunctions are the following: To stay proceedings in courts of law, in the Spiritual Courts, the Courts of Admiralty, or in some other Court of Equity; to restrain the indorsement or negotiation of notes and bills of exchange (Story Eq. Jur. s. 955); the sale of land (Story Eq. Jur. s. 954); the sailing of a ship, upon the applica

tion of a part owner (Story, s. 957); the transfer of stock; the alienation of a specific chattel; to prevent the wasting of assets or other property pending litigation; to restrain a trustee from assigning the legal estate or from setting up a term of years, or assignees from making a dividend; to prevent the removing out of the jurisdiction; marrying or having any intercourse which the court disapproves of with a ward; to restrain the commission of every species of waste to houses, mines, timber, or any other part of the inheritance; to prevent the infringement of patents and the violation of copyright, either by publication or theatrical representation; to suppress the continuance of public and private nuisances; and by the various modes of interpleader restraint upon multiplicity of suits, or quieting possession, before the hearing to stop the progress of vexatious litigation. These, however, are far from being all the instances in which this species of equitable interposition is obtained; it would, indeed, be difficult to enumerate them all, for in the endless variety of cases in which a plaintiff is entitled to equitable relief, if that relief consists in restraining the commission or the continuance of some act of the defendant, a Court of Equity administers it by means of the writ of injunction: (Eden on Injunct. c. 1.)

To render an injunction effectual a Court of Equity will grant all the relief necessary for that purpose; and in cases of patents for invention, and in cases of copyright, the bill for an injunction usually seeks an account, in the one case, of the profits from the use and sale of the invention; and in the other, of the books printed and of the proceeds of the sale thereof. This account is decreed as incidental to the relief granted upon bills for injunction : (Story Eq. Jur. s. 933.)

(a) A writ of injunction is a judicial process of Courts of Equity, whereby a party is required to do

(a) The remainder of the chapter, with the exception of some few additions, is from "Roberts on the Principles of Equity."

or refrain from doing some particular thing. This process differs from a mandamus and a prohibition, in that it is not directed to any court or public officer, so as in any way to prevent their proceeding, but simply to a private individual, inhibiting him, his servants, and agents from proceeding, if necessary for the object required, with any or some particular judicial process respecting the matter in question, or doing any other thing which may be contrary to justice, and the rights of the parties interested, for the Court of Equity does not arrogate to itself any appellate jurisdiction over the other courts, or any power of reversing their decisions; but simply assumes a power of preventing individuals from using the process and judgments of other courts, as a means of oppression and injustice : (Sto. 861 to 895.) A disobedience to the writ of injunction, is considered a high contempt of the Court of Chancery, and punishable by the imprisonment of the offender, until he has cleared his contempt by submission or otherwise, according to the rules and practice of the court.

Injunctions are divisible into temporary and perpetual, and these may be either total, or partial, qualified, or unqualified, and their nature is generally preventive, though some are of a restorative character. They are granted for almost every purpose coming within the cognizance of a Court of Equity, and it is impossible to particularize the cases, for equity constantly declines to lay down any rule limiting its power and discretion, as to the cases in which they shall or not be granted. It seems, however, that without there is some special and sufficient reason to the contrary, injunctions will always be granted for the purpose of protecting its officers against any proceedings instituted against them, for acts performed under or by virtue of its direction, and also to prevent persons from making any wrongful or unfair use of another court, or otherwise injuring another contrary to equity and good conscience; and this jurisdiction has arisen either from the want of any