and injury be such that the law will not afford an adequate and sufficient remedy. The same principle which governs the court in other cases, in which its jurisdiction is more generally applied, seems to me to apply in such cases as the present. In cases of specific performance the jurisdiction of this court is founded on the inadequacy of the remedy at law. If the specific performance of a covenant be asked, it is not every covenant which this court will perform, but such covenants only as cannot be adequately compensated in damages. So, again, in cases of trespass, it is not every trespass against which this court will enjoin; but such trespasses as are, or are assumed to be, irremediable or at all events material; and so I take it to be in cases of nuisances" (u). It has already been pointed out (x) that courts of equity have shown a tendency during the nineteenth century to enlarge the protection which they give to legal rights; and, as the law now stands, where a plaintiff can prove that a violation is threatened of his proprietary right, and that violation can be prevented by a merely negative injunction, the plaintiff is prima facie entitled to have the injunction granted (y). The court, as a rule, only leaves the plaintiff to his legal remedy where the injury threatened is trifling or transitory, where the plaintiff has been guilty of improper delay in asserting his right (2), or where he is a reversioner, and a declaration of right is all that he really requires for his protection (a). This change in the attitude of the court is due to two causes. On the one hand, courts of equity have become more and more impressed with the conviction that in many cases, e.g., cases of a continuing nuisance, no sum of money can compensate a plaintiff for a violation of his legal right, and that to leave him to his remedy in damages would in substance enable a rich man or powerful corporation to

(u) A. G. v. Sheffield Gas Consumers Co. (1853), 3 D. M. & G. 304, p. 120. (x) P. 9.

(y) Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287. () A. G. v. Mid-Kent Rail. Co. (1867), L. R. 3 Ch. 100; Shelfer v. City of London Electric Lighting Co., supra.

(a) Aynsley v. Glover (1875), 18 Eq. 544.

Equity avoids multiplicity of suits.

take property by compulsion on payment of such compensation as a jury might determine (b). On the other hand, the common law has, in more than one instance, borrowed from equity, and has held that there was no legal right of action in circumstances under which courts of equity refused to grant an injunction (c). The principle that there is a right to an injunction wherever the acts threatened would give a right to more than trifling damages does not apply with equal force where a mandatory injunction is applied for. Courts of equity have always been reluctant to order positive acts to be done (not being acts which could be done uno flatu), especially where these acts consist in the destruction of valuable property. Thus, where a house has been built which obstructs ancient lights, and the builder has acted in the bona fide belief reasonably entertained that he was within his rights, courts of equity are unwilling to order the house to be pulled down, if damages afford a reasonable compensation to the party whose lights are obstructed (d). Damages may be an adequate remedy for the breach of an executory contract in a sense in which they cannot be adequate where a proprietary right is violated. If a man's house is rendered uninhabitable by a noise or a stink, damages may be a consolation, but are never an equivalent. If a contract is broken for the sale of consols, damages may and should place the plaintiff in precisely the same position as if he had received the consols at the time agreed upon. Courts of equity, therefore, in declining to exercise jurisdiction in the case of certain executory contracts decline, not because the remedy in damages is an adequate remedy, but because it is the same remedy as that which they could afford by specifically enforcing the contract (e).

The principle which has tended to enlarge the jurisdiction. is the principle that the court is anxious to avoid so far as possible a multiplicity of suits. "The court of equity

(b) Krehl v. Burrell (1879), 7 Ch. D. 551; 11 Ch. D. 146; Shelfer v. City of London Electric Lighting Co., supra; Jordeson v. Sutton Gas C., [1899] 2 Ch. 217, p. 240.

(c) Instance at p. 472.

(d) P. 474.

(e) P. 537.

in all cases delights to do complete justice, and not by halves" (ƒ). If the court was properly seised of one matter, which was closely connected with another matter not usually cognizable in equity, the acknowledged jurisdiction. over the one drew to it a jurisdiction over the other, although that matter in itself could be properly dealt with in a court of law. Some instances may be given in which this principle has been applied: (a) Where a plaintiff came properly into equity to obtain discovery in aid of a legal claim, the court of equity was sometimes willing to adjudicate upon the legal claim instead of sending the plaintiff to a court of law (g); and it has been suggested that the jurisdiction to administer the assets of a dead man was originally given as ancillary to a suit by creditors for discovery (h). (b) Where a plaintiff came properly for an injunction to restrain threatened and intended waste or similar acts, it was customary, if waste or other wrongful acts had already been committed, to grant an account as ancillary to the injunction, although the account was in respect of a demand which might have been the subject of an action at law (i). (c) Where two persons were liable to satisfy a single demand, and satisfaction was properly sought in equity against one of them, the plaintiff was obliged to make the other a party, and the court determined any right of contribution or indemnity which one of the persons liable might have against the other, although that right could have been enforced by proceedings at law (k).

The desire of courts of equity to avoid a multiplication Multiplicaof suits led inevitably to a multiplication of parties. "The tion of parties. general rule," said Lord HARDWICKE (1), “is, that if you

(f) Knight v. Knight (1734), 3 P. Wms. 331, p. 334. (a) Pearce v. Creswick (1843), 2 Ha. 286, p. 293.

(h) See per Lord HARDWICKE in Jesus College v. Bloom (1745), 3 Atk. 262.

(i) Jesus College v. Bloom (1745), 3 Atk. 262; (1746), 3 Atk. 378, p. 381.

Smith v. Cooke

(k) Knight v. Knight (1734), 3 P. Wms. 331; Madox v. Jackson (1746), 3 Atk. 405; Angerstein v. Clarke (1790), 3 Sw. 147 n.; Coppard v. Allen (1864), 2 D. J. & S. 173.

(1) Poore v. Clark (1742), 2 Atk. 515; see also Pawlet v. Bishop of Lincoln (1742), 2 Atk. 296; A. G. v. Jackson (1805), 11 Ves. 365.

draw the jurisdiction out of a court of law, you must have all persons parties before this court, who will be necessary to make the determination complete and to quiet the question." The difficulties which arose in equity from the necessity of bringing before the court all persons who had an interest in the matter in dispute were diminished by the introduction of representative suits. At common law, a plaintiff before the Judicature Act could not sue or be sued in a representative capacity unless he were already a legal representative of another, e.g., an executor or the public officer of a bank. In equity, where there was a common interest and a common grievance, a representative suit was allowed from an early time if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent. The rule was not confined to persons who had a beneficial proprietary interest. Thus an administration suit might be brought by one creditor on behalf of himself and all other creditors (m). On the same principle, where the defendants were numerous, two or three of a class might always be made defendants to represent the interests of that class (n).

(m) Chancey v. May (1722), Prec. Ch. 592; Taylor v. Salmon (1838), 4 My. & Cr. 134, p. 141; Wallworth v. Holt (1841), 4 My. & Cr. 619, p. 635; Mozley v. Alston (1847), 1 Ph. 790; Duke of Bedford v. Ellis, [1901] A. C. I.

(n) Cuthbert v. (1818), 2 Sw. 277;

Westwood (1725), Gilb. Eq. 230: Meux v. Maltby
Bromley v. Williams (1863), 32 B. 177.

CHAPTER III.

EQUITY ACTS ON THE PERSON.

and substance

"The" point

NOTHING has produced greater confusion in equity than the Distinction
contradiction between the substance of the rights which between form
it enforced and the forms by which it enforced them. of equitable
Originally, as has been pointed out, the only orders which relief.
the court felt itself justified in making were personal orders,
and it enforced its orders exclusively by personal compulsion.
Little by little it enlarged the character of the compulsion
which it exercised over a recalcitrant defendant by taking
possession of his property through the medium of seques- 2.
trators. And the court was led by insensible steps to
provide for the satisfaction of the plaintiff in specie. Thus 3
it let a plaintiff into possession of land which, in the opinion.
of the court, belonged to him in conscience, or ordered
sequestrators to pay him the rents and profits. But the
court never assumed to determine the title to land or other
property. That was determined exclusively by the courts.
of common law. A court of conscience acted on the con-
science and on the conscience alone. But where a court
went so far in the relief of an overburdened conscience as to
order a party brought before it to convey land or to deliver
chattels to another, and (if he failed to avail himself of this
opportunity for moral regeneration) imprisoned him, barred
up the windows of his cell or put him in irons, that court
necessarily determined in substance the title to property.
And the Court of Chancery at an early period so fully
recognised the effect of what it was doing that it treated the
persons to whom it would (if appealed to) direct land to be
conveyed or chattels to be delivered as having not merely a
right of action in equity, but also (even before any appeal
was made to the court) a proprietary title in the land or
chattels in question corresponding to the title which at law
was vested in the legal owner. Where the Court of Chancery
recognised such a proprietary title in any person, it gave
him (so far as it was able) rights in respect of the property