status quo (r). And a mandatory injunction may be granted on interlocutory application (s). A Court of Equity could not, under its original constitution, give damages either for a breach of contract or for a tort; but the Chancery Amendment Act, 1858 (t)— commonly known as Lord Cairns' Act-enabled the Court of Chancery to award damages, either in addition to, or in substitution for, an injunction or specific performance. And, since the Judicature Act, each division of the High Court has a complete common-law as well as equitable jurisdiction. An injunction also used sometimes to restrain a person from prosecuting his legal action, or from enforcing a judgment he had obtained therein; but, with regard to the Supreme Court, the Judicature Acts have now provided, that no cause or proceeding pending in the High Court of Justice, or before the Court of Appeal, shall be restrained either by prohibition or injunction. But every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained if the Act had not passed, either unconditionally or on any terms and conditions, may now be relied on by way of defence to the action; and these courts. may also now direct a stay of proceedings, in any cause or matter pending before them (u). But an injunction may, in a proper case, still issue to restrain the institution of legal proceedings in the High Court (x), or indeed in any court, domestic or foreign. 4. As to the perpetuation of testimony. The examination of witnesses never used to take place in a legal action, except with reference to matters in respect of which some proceeding had been already commenced; (r) Isenberg v. East India House Co. (1863), 3 De G. J. & S. 263. (8) Von Joel v. Hornsey, [1895] 2 Ch. 774. (t) 21 & 22 Vict. c. 27. (u) Judicature Act, 1873, s. 24, sub-s. (5). (x) Cercle Restaurant v. Lavery (1881), 18 Ch. D. 555. and the law is so still. But it is sometimes very material for the protection of existing rights, that the evidence relating to them should be taken and preserved, though they may not yet be the subject of any legal proceedings; the position of the parties interested being such as not yet to afford any opportunity for litigation, though there may be reasons for expecting a future contest of the right, and that at a period when the witnesses, now competent to give material evidence upon it, may have been removed by death (y). In such cases, therefore, the Court of Chancery lent its aid, by permitting any of the parties interested to institute proceedings against the rest, with a view to the mere perpetuation of the testimony, and without reference to any other present relief; and this was effected by taking down the examinations or depositions of the witnesses, which, in the event of the right being tried at any future period, when the attendance of the witnesses. could no longer be procured, was receivable in evidence between the same parties or those claiming under them. With a view to extending the application of so convenient and important a remedy, it was enacted, by the Perpetuation of Testimony Act, 1842, that any person who, upon the happening of any future event, would (under the circumstances alleged by him to exist) become entitled to any honour, title, dignity, or office, or to any estate or interest in property real or personal, the right or claim to which could not by him be brought to trial before the happening of such event, might take proceedings in equity, to perpetuate any testimony material for establishing such claim or right; and this provision has been reproduced in substance in the Rules of the Supreme Court (z). There is, moreover, one fundamental distinction between law and equity, which has not always been sufficiently adverted to. The law, whether in actions for breach of (y) Earl Spencer v. Peek (1867), L. R. 3 Eq. 415. (z) Ord. XXXVII., rr. 35– 38; Marquis of Bute v. James (1886), 33 Ch. D. 157. contract or in actions of tort, is guided, in fixing the damages, by the loss sustained by the plaintiff. On the other hand, where a court of equity grants an account, the account is invariably an account of moneys which have been received by the person against whom the account is directed, or which, but for his wilful default, would have been received by him, or of profits which he has made or which, under the doctrine of the court, he is estopped from denying that he has made. That is to say, the primary object of a court of equity is not, to restore property to the plaintiff which has been wrongfully taken from him, or to compensate him in damages for its loss ; but to deprive the defendant of property which it is against conscience for him to retain. The property which is so taken from the defendant necessarily goes to the plaintiff; but the relief given to him is incidental. And he may, under the operation of the equitable doctrine, obtain an advantage which would not have accrued to him, if the only object of the court had been to repair the wrong in respect of which he seeks redress (a). In a previous chapter the provisions of the Judicature Acts have been set out, and the mechanism explained, by which the Court of Chancery ceased to have a separate existence, and was incorporated, with a number of other courts, into a new tribunal. But the effect of those enactments, and of the so-called "fusion of law and equity which they brought about, has not been to diminish in any respect the necessity for discriminating between legal and equitable claims, and between legal and equitable defences. The object of the Judicature Acts was, to diminish the quantity of legal proceedings, and to ensure that, where A. had a claim against B., A.'s claim, and any counterclaim of B. which was naturally connected with A.'s claim, might be disposed of, exhaustively and con (a) See this point illustrated in Ashburner, Equity, pp. 51–54. clusively, in one single proceeding. The object of the Acts was not, except as regards certain specified particulars which have already been dealt with (b), to alter the principles on which the courts of law and equity had respectively proceeded before the fusion took place (c). It follows that a legal claim can only be met-after the Acts as well as before-by a legal defence, or by some equity which, before the Acts, would have authorized the issue of an injunction to restrain proceedings at law on the claim. While, on the other hand, an equitable claim may be met by equitable defences, an equitable claimant may be put upon equitable terms; and an equitable title cannot be enforced against a legal title which it has no ground in conscience to remove (d). (b) Ante, pp. 455, 456. (c) An alteration in procedure may incidentally bring about an alteration which looks, at first sight, like an alteration of princi ple. Thus, discovery may now be obtained against a purchaser for value without notice. Ashburner, Equity, p. 70. (d) See ibid. pp. 22-24. See CHAPTER IX. OF THE GENERAL PRINCIPLES OF EQUITY. Jurisdiction of Equity.-Formerly it was customary to divide the matters which came within the jurisdiction of the Court of Chancery into those which came within its exclusive jurisdiction, those which came within its concurrent jurisdiction, and those which came within its auxiliary jurisdiction. In the first of these divisions were included all matters which might sustain a suit in equity, but which did not give rise to a cause of action in any other court. Of these the most typical and important were matters connected with the administration of trusts which, as we shall shortly see, were entirely the creation of the Court of Chancery itself. In the second division were placed matters in which relief could be obtained in some other court besides a court of equity. Thus, questions arising out of fraud, mistake, or partnership, came equally within the equity and the common law jurisdiction; and matters connected with deceased persons' estates equally within the jurisdiction of equity and of the ecclesiastical courts. Gradually this branch of the jurisdiction of equity was held to include all matters in which the Court of Chancery could give a more complete or effectual remedy than a court of law. As to matters coming within this branch, the Court of Chancery decided for itself the validity of the legal right involved (a). In the third division were placed matters in which the Court of Chancery gave its aid to secure the proper trial in another court of some (a) See Ashburner, Equity, p. 3. |