PART III.

EQUITY AS AIDING THE LAW.

Character of acts which may be

restrained.

CHAPTER XXII.

EQUITABLE REMEDIES.

THE jurisdiction in equity to give relief to a plaintiff suing upon a legal title was based mainly upon the superior efficacy of equitable remedies. The present chapter deals with these remedies so far as they are employed in the protection of legal rights.

INJUNCTIONS.

An injunction is an order of the court restraining a person from doing an act; and the power of the court to grant an injunction is limited by the nature of the act which it is sought to restrain. 1. The act which it is sought to restrain may be such that the order of the court can be complied with by simple inaction, and in this case the party restrained has no difficulty in obeying the order, and the court has no difficulty in seeing that the order is obeyed. 2. The act which it is sought to restrain may be such that it is impossible to obey the order of the court without performing some other act of great difficulty and expense. Thus, an order not to send sewage into a river may, in substance, oblige the person restrained to construct a complete drainage system. Lex non cogit ad impossibilia. The court will not make an order that a thing shall be done or not be done when the only effect of the order will be not the doing or not-doing of the thing, but the imprisonment of the person against whom the order is made (a). It will, therefore, not

(a) Attorney-General v. Colney Hatch Lunatic Asylum (1868), 4 Ch. 146, p. 154.

make an order to restrain an act unless it is satisfied that some means exist whereby the party restrained can prevent the act from taking place (b). But the court is not deterred from restraining defendants from committing a wrong merely because they will be put to great expense and inconvenience in preventing it (c). At the same time the difficulty in which an injunction may put public bodies-for instance, an injunction requiring them to close sewers in daily use-has induced the court in many cases not to exert its jurisdiction to the utmost, e.g., the court, while declaring the plaintiff's right to relief, will give the defendants reasonable time to remedy the acts complained of (d). 3. Where the court restrains an act, the circumstances of the party against whom the order is made may be such that, if he is prevented from doing the act restrained, he is indirectly compelled to do something else, e.g., an order restraining a prima donna from singing at any opera house but A.'s practically obliges her to sing at A.'s. The court, however, is not deterred from restraining one act, simply because the party restrained is thereby practically obliged to do something which the court would not by a direct order have required him to do (e).

An order may be negative in form, and affirmative in Injunctions affirmative substance. Until recently, injunctions in aid of legal rights in substance were invariably couched in a negative form. Thus, the court, instead of ordering a person to pull down a house, restrained him from permitting or suffering the house to remain standing. Orders which direct positive acts to be done are now made in an affirmative form (ƒ). There was a time when the court by phrasing its order in a negative form indirectly compelled the performance of acts which it would not have compelled by a positive order. Thus, it restrained a defendant from continuing to keep works out

(b) Glossop v. Heston Local Board (1879), 12 Ch. D. 102, p. 129; Attorney-General v. Guardians of Dorking (1882), 20 Ch. D. 595, pp. 606, 610.

(c) Attorney-General v. Colney Hatch Lunatic Asylum, supra. (d) Islington Vestry v. Hornsey Urban Council, [1900] 1 Ch. 695. (e) Lumley v. Wagner (1852), 1 D. M. & G. 604; De Mattos v. Gibson (1859), 4 De G. & Jo. 276, p. 299.

(f) Jackson v. Normanby Brick Co., [1899] 1 Ch. 438.

When there is jurisdiction to grant injunction in aid of legal title.

There must be intention to do act in future.

of repair (g). The court now looks at the substance of the relief which it is called upon to give; and if it would not have given the relief by a positive order, it will not give it under the form of an injunction. There is a rule of great authority that the court will not order a continuous act to be done which involves labour and care (h). In Powell Duffryn Steam Coal Co. v. Taff Vale Rail. Co. (i) the plaintiffs had a statutory right to run trains over the defendants' railway, and, as the defendants declined to allow their men to move the signals for the plaintiffs, the plaintiffs applied for an injunction to restrain the defendants from doing or permitting anything so as to prevent or interfere with the proposed use of the railway by the plaintiffs. The Court of Appeal refused the injunction on the ground that, if relief was given, it must in substance involve ordering the defendants to work the points and signals, and that it was not the practice of the court "to compel by injunction either a company or an individual to do a continuous act which requires the continuous employment of people. The court will in a proper case restrain a man from singing at one theatre, but it will not undertake to compel him to sing at another; it may restrain him from writing a book for one publisher, but it cannot compel him to write a book for another. Where what is required is not merely to restrain a party from doing an act of wrong, but to oblige him to do some continuous act involving labour and care, the court has never found its way to do this by injunction."

In order that the court may have jurisdiction to grant an injunction in aid of a legal title, three conditions must be fulfilled first, the plaintiff must prove that the defendant threatens and intends to do some act in the future; secondly, that act must be one which, if done, will violate a legal right of the plaintiff; and thirdly, the right must be one of which the court normally restrains the violation.

1. Whether illegal acts have or have not been done in the past, an injunction will not be granted unless there is

(g) Lane v. Newdigate (1804), 10 Ves. 192.

(h) See p. 535, as to the exception to this rule in the case of executory

contracts.

() (1874), 9 Ch. 331.

evidence that some illegal act is intended to be done in the future (k). If it is shown that such an intention exists, an injunction may be granted, although the defendant has done nothing of a similar kind in the past (1). The material time in considering whether an intention exists to do an illegal act is the time of commencing the action. If such an intention exists when the action is commenced, there is jurisdiction to grant an injunction, although the intention. does not exist at the trial (m).

The fact that illegal acts have been done in the past is material to the relief sought in two ways. First, it throws the burden on the defendant of showing that similar acts will not be done in the future; and the burden is heavier where the defendant sets up the claim of a right to do the acts in question (n). Secondly, in many cases it is difficult to ascertain whether an intended act will be illegal until it is done. For instance, if A. threatens to make machines of a certain description, it is often possible to ascertain, even before they are made, whether they will infringe B.'s patent. If A. threatens to erect a building of a certain description, it is still possible, though more difficult, to ascertain, even before it is built, whether it will interfere with B.'s ancient lights. But if A. threatens to make a noise or a stink, it is next to impossible to ascertain, before he has made it, whether it will be a nuisance or not to B. Hence, in the case of nuisances from noise and smell, an injunction will not, as a rule, be granted unless substantial damage has already been caused to the plaintiff (o).

violate the

2. The act which is threatened must be an act which, Which will when it takes place, will violate a legal right of the plain- plaintiff's tiff (p). Where the court is called upon to restrain the legal right.

(k) Kernot v. Potter (1862), 3 D. F. & J. 447, p. 457; Stannard v. Vestry of St. Giles, Camberwell (1882), 20 Ch. D. 190 ; Proctor v. Bayley (1889), 42 Ch. D. 390.

(1) Frearson v. Loe (1878), 9 Ch. D. 48, p. 65; Proctor v. Bayley, supra, p. 398.

(m) Millington v. Fox (1838), 3 My. & Cr. 338; Davenport v. Rylands (1365), L. R. 1 Eq. 302.

(n) Geary v. Norton (1846), 1 De G. & Sm. 9.

(0) See per MELLISH, L.J., in Salvin v. North Brancepeth Coal Co. (1874), 9 Ch. 705, p. 713.

(p) Day v. Brownrigg (1878), 10 Ch. D. 294; White v. Mellin, [1895] A. C. 154; Earl Cowley v. Countess Cowley, [1901] A. C. 450.

Exceptions

to general rule.

violation of an equitable right of the plaintiff, the court is not obliged to consider whether the violation complained of gives the plaintiff a common law cause of action against the defendant; but where the court is protecting a legal right, the court cannot proceed unless the violation of that right entitles the plaintiff to damages. "Damages and injunction," said Lord WATSON (q), "are merely two different forms of remedy against the same wrong; and the facts which must be proved in order to entitle a plaintiff to the first of these remedies are equally necessary in the case of the second. The onus resting upon a plaintiff who asks an injunction, and does not say that he has as yet suffered any special damage is, if anything, the heavier, because it is incumbent upon him to satisfy the court that such damage will necessarily be occasioned to him in the future." It follows that where the legal cause of action is composed of several ingredients, the plaintiff who seeks an injunction must prove that all these ingredients will be present. For instance, a man has no property at law in his own name. A. cannot bring an action against B. simply because B. calls himself by A.'s name, or because B. makes an unauthorised use of A.'s name, e.g., by falsely representing that A., a doctor, recommends B.'s quack medicine. A. can only bring an action against B. for assuming A.'s name where the assumption has done B. damage in his trade or business. He can only bring an action against B. for an unauthorised user of A.'s name where the user has damaged B. in his property, business, or profession. A. therefore can only restrain B. from assuming A.'s name in the case of tradenames (r); he can only restrain B. from making an unauthorised user of his name where the unauthorised user is calculated to damage B. in his property, business, or profession (s).

To the general rule that an injunction will not be granted in aid of legal rights unless an act is threatened which, if committed, will violate a legal right of the plaintiff

(q) White v. Mellin, supra, p. 167.

(r) Earl Cowley v. Countess Cowley, supra, p. 460.

(s) Dockrell v. Dougall (1899), 80 L. T. 556 ; Walter v. Ashton, [1902] 2 Ch. 282.