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ter, as the court or a judge may order; and the court may order payment of the amount of such expenses and costs, and enforce payment thereof by execution.

See for form of writ of inquiry, R. G., M. V. 1854, sched. 33, post.

PREROGATIVE MANDAMUS.

writ of man

75. Nothing herein contained shall take away the Prerogative jurisdiction of the Court of Queen's Bench to grant damus prewrits of mandamus; nor shall any writ of mandamus served. issued out of that court be invalid by reason of the right of the prosecutor to proceed by action for mandamus under this act.

See, as to prerogative mandamus, Corner's Crown Prac.; and Tapping on Mandamus.

for preroga

accelerated.

76. Upon application by motion for any writ of Proceedings mandamus in the Court of Queen's Bench, the rule tive writ of may in all cases be absolute in the first instance, if the mandamus court shall think fit; and the writ may bear teste on the day of its issuing, and may be made returnable forthwith, whether in term or in vacation, but time may be allowed to return it, by the court or a judge, either with or without terms.

on preroga

77. The provisions of "The Common Law Proce- Proceedings dure Act, 1852," and of this act, so far as they are tive writ of applicable, shall apply to the pleadings and proceedings mandamus. upon a prerogative writ of mandamus issued by the Court of Queen's Bench.

This section removed the doubt which had arisen, whether the enactments as to pleading of the C. L. P. A. 1852, ante, applied to proceedings in MANDAMUS (Reg. v. Saddlers' Company, cited p. 49, supra).

SPECIFIC DELIVERY OF CHATTELS.

78. The court or a judge shall have power, if they or he see fit so to do, upon the application of the plaintiff in any action for the detention of any chattel, to order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining such chattel upon paying the value assessed, and that if the said chattel cannot be found, and unless the court or a judge should otherwise order, the sheriff shall distrain the defendant by all his lands and chattels in the said sheriff's bailiwick, till the defendant render such chattel, or, at the option of the plaintiff, that he cause to be made of the defendant's

Specific devery of

chattels.

goods the assessed value of such chattel; provided that the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defendant's goods, the damages, costs and interest in such action.

Courts of equity have, from a very early period, compelled the return of specific chattels. This jurisdiction seems formerly to have been confined in its exercise to cases where the chattels were of peculiar value to the owner, as, for instance, heir-looms, jewellery, articles of curiosity or antiquity, family pictures (Pusey v. Pusey, 1 Vern. 273; Duke of Somerset v. Cookson, 3 P. Wms. 389; Saville v. Tancred, 1 Ves. 101; Fells v. Read, 3 Ves. 71), or title deeds (Brown v. Brown, 1 Dick. 62; Papillion v. Voice, 2 P. Wms. 478; Ford v. Peering, 1 Ves. 72; Duncombe v. Mayer, 8 Ves. 320; Jackson v. Butler, 2 Atk. 306); or the certificate of the registry of a ship (Gibson v. Ingo, 6 Hare, 125). More recently it has been laid down that the right to be protected in the use or beneficial enjoyment of property in specie, is not confined to articles possessing any peculiar or intrinsic value, if there be any fiduciary relation between the parties (Wood v. Rowcliffe, 3 Hare, 304; and see Linigen v. Simpson, 1 S. & S. 600).

The Court of Chancery interferes in cases of detention of chat. tels, because in the action of trover, damages only were recovered; while in detinue, the defendant had it formerly in his power, if he chose, to retain the article upon payment of the value as assessed by the jury. The damages recovered in either action, although equal to the intrinsic value of the article detained, might be wholly incommensurate with that placed upon it by the owner, so that damages might not be anything like adequate compensation to him for the loss. "The Pusey Horn, the Patera of the Duke of Somerset' (observes Lord Loughborough), were things of that sort of value that a jury might not give twopence beyond their weight." In all cases where the object of the suit is not susceptible of compensation by damages, it would be strange if the law of this country did not afford any remedy. It would be a great injustice if an individual cannot have his property, without being liable to have only the value at which it is estimated by people who have not his feelings upon it (Fells v. Read, 3 Ves. 71).

66

The Courts of Common Law have now, after judgment in an action of detinue, the same jurisdiction to compel the return of a chattel as the Court of Chancery, but the latter Court may enforce its decrees by attachment, while the Courts of Common Law can only enforce restitution, under this section, by distringas.

The assessment of the value of the chattel detained is, by the terms of this section, a condition precedent to the exercise of the jurisdiction conferred upon the court; and therefore, where at the trial of an action of detinue for a lease, deposited as security for 1504, the parties agreed that the jury should be discharged from finding the value of the lease, and the judge made an order on the defendant to deliver up the lease, the court rescinded that order; and quare whether, if the value had been assessed, the court could have ordered the lease to be delivered up on payment of the 1501. (Chilton v. Carrington, L. J. 24, C. P. 78).

Money may now, by leave of the court or a judge, be paid into court in detinue (C. L. P. A. 1860, s. 25, post): such leave will probably not be granted where the plaintiff seeks a specific resti

tution under this section, and the defendant is not absolutely unable to make it.

See also "The Mercantile Law Amendment Act, 1856," s. 2,

post.

35.

See forms of writs of execution, R. G., M. V. 1854, sched. 34,

INJUNCTION.

writ of injunction.

79. In all cases of breach of contract or other Claim of injury, where the party injured is entitled to maintain and has brought an action, he may, in like case and manner as hereinbefore provided with respect to mandamus, claim a writ of injunction 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; and he may also in the same action include a claim for damages or other redress.

In order to entitle a party to claim a writ of injunction under this section, three circumstances must combine:

1. There must be a breach of contract or other injury.

2. It must be such a breach or injury as entitles the party injured to maintain an action.

3. Such action must have been commenced.

It would be to enter upon too wide a field, to discuss the various cases in which the writ of injunction may be claimed. Its use, however, will be found chiefly in the following classes of cases: actions by reversioners for waste, such as cutting timber; in actions for breaches of covenant, including, of course, the various claims on farming and other leases; actions for infringement of prescriptive rights and easements, as ways, common, water, watercourses, and lights; actions for nuisances of various kinds; and actions for infringement of letters patent and copyrights.

A positive act, such as the pulling down a wall that obstructs light, may well be within the scope of an injunction (Jessel v. Chaplin, 2 Jur., N. S. 931, Ex.; and see Lumley v. Wagner, L. J. 21, Ch. 898).

The granting of an injunction is not of right, upon mere proof of the invasion of a legal right; but the circumstances of the case will be taken into consideration (Jessel v. Chaplin, 2 Jur., N. S. 931, Ex.)

As to costs, see C. L. P. A. 1860, s. 32, post.

As to enforcing an injunction against a corporation, see C. L. P. A. 1860, s. 33, post.

In respect of patents, the "Patent Law Amendment Act, 1852" (15 & 16 Vict. c. 83, s. 42), has provided that "in any action in any of her majesty's superior courts of record at Westminster ⚫ for the infringement of letters patent, it shall be lawful for the court in which such action is pending, if the court be then sitting, or if the court be not sitting, then for a judge of such court, on the application of the plaintiff or defendant respectively, to make such order for an injunction, inspection or account, and to give such direction respecting such action,

Form of writ of summons and in

dorsement thereon.

Form of proceedings and

injunction, inspection and account, and the proceedings therein respectively, as to such court or judge may seem fit." (See hereon Holland v. Fox, L. J. 23, Q. B. 211; and Vidi v. Smith, L. J. 23, Q. B. 342).

80. The writ of summons in such action shall be in the same form as the writ of summons in any personal action; but on every such writ and copy thereof there shall be indorsed a notice that in default of appearance the plaintiff may, besides proceeding to judgment and execution for damages and costs, apply for and obtain a writ of injunction.

For form of indorsement on writ of summons of claim of injunction, see R. G., M. V. 1854, sched. 36.

81. The proceedings in such action shall be the of judgment. same, as nearly as may be, and subject to the like control, as the proceedings in an action to obtain a mandamus under the provisions hereinbefore contained; and in such action judgment may be given that the writ of injunction do or do not issue, as justice may require; and in case of disobedience, such writ of injunction may be enforced by attachment by the court, or when such courts shall not be sitting, by a judge.

Writ of injunction may be applied for at any stage of the cause.

Equitable

82. It shall be lawful for the plaintiff at any time after the commencement of the action, and whether before or after judgment, to apply ex parte to the court or a judge for a writ of injunction to restrain the defendant in such action from the repetition or continuance of the wrongful act or breach of contract complained of, 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; and such writ may be granted or denied by the court or judge upon such terms as to the duration of the writ, keeping an account, giving security, or otherwise, as to such court or judge shall seem reasonable and just, and in case of disobedience, such writ may be enforced by attachment by the court, or, when such courts shall not be sitting, by a judge: provided always, that any order for a writ of injunction made by a judge, or any writ issued by virtue thereof, may be discharged or varied or set aside by the court, on application made thereto by any party dissatisfied with such order.

EQUITABLE DEFENCES.

83. It shall be lawful for the defendant or plaintiff

in replevin in any cause in any of the Superior Courts defence may be pleaded. in which, if judgment were obtained, he would be entitled to relief against such judgment on equitable grounds, to plead the facts which entitle him to such relief by way of defence, and the said courts are hereby empowered to receive such defence by way of plea; provided that such plea shall begin with the words "for defence on equitable grounds," or words to the like effect.

In the application under this enactment of equitable principles General rule. by the courts of law, the following general rule has been laid down and steadily adhered to:-that a plea on equitable grounds can only be supported at law where an absolute and unconditional injunction would be granted in equity; so that, where the plea is followed by a common law judgment, complete and final justice may be done between the parties (Mines Royal v. Magnay, 10 Exch. 489; Phelps v. Prothero, L. J. 24, C. P. 225; Wodehouse v. Farebrother, 5 E. & B. 277; Wood v. Copper Miners Co., 17 C. B. 561; Clark v. Laurie, L. J. 26, Ex. 38; Gee v. Smart, 8 E. & B. 313; Drain v. Harvey, 17 C. B. 257; Flight v. Gray, 3 C. B., N. S. 320; Scott v. Littledale, L. J. 27, Q. B. 201).

It is of course impossible to comprise within a small compass the various cases in which courts of equity administer relief; but some examples may be given by way of illustration :

One head under which courts of equity have constantly given Accident. relief has been that of "accident." At law, an executor, having once received assets of his testator, cannot discharge himself under a plea of plene administravit, against a creditor seeking satisfaction out of the testator's assets, either on the score of inevitable accident, as destruction by fire, loss by robbery or the like, or reasonable confidence disappointed, or loss by any of the various means which afford excuse to ordinary agents and bailees, in cases of loss without any negligence on their part (per Lord Ellenborough, Crosse v. Smith, 7 East, 258). Thus in a case where an executor having received assets, and paid them over to a co-executor for the purpose of satisfying a bond creditor, who had demanded payment from such co-executor, upon the latter applying it in payment of his own simple contract debts, it was held that the executor, who had paid him the money, could not discharge himself by the plea of plene administravit to an action by the bond creditor. In equity, however, although an executor is liable, should he unnecessarily pay over assets to his co-executor whereby they are embezzled or lost (Townsend v. Barker, 1 Dick. 356; Langford v. Gascoigne, 11 Ves. 333), yet if the payment were in discharge of a necessary duty, as for the purpose of satisfying creditors residing at a distance from the executor remitting such assets, he would not be liable for their loss (Bacon v. Bacon, 5 Ves. 331; 2 Tudor's Leading Cases in Equity, 1st ed., 659, 660). Again, in equity, an executor has been held not liable for the loss of assets occasioned by fire (Lady Croft v. Lyndsey, Freem. Ch. Rep. 1), or robbery (Holt v. Holt, 1 Ch. Ca. 191; Jones v. Lewis, 2 Ves. 240). In these cases an executor might have proceedings against him at law restrained; he may now plead in bar of an action the same circumstances,

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