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formance.

Specific Per- obey the writ; for no return, except that of compliance, will be allowed, although time to return the writ may, upon sufficient grounds, be given by the court or a judge (s. 72).

If the defendant fails either to obey or to return the writ, two courses are open to the plaintiff. He may cause the defendant to be attached ; for it is expressly provided that the new writ of mandamus shall have the same force and effect as a peremptory writ of mandamus issued out of the Court of Queen's Bench (i. e. a prerogative writ of mandamus), and in case of disobedience may be enforced by attachment (s. 73). Besides, or instead of proceeding against the defendant by attachment, the court may, upon application by the plaintiff, direct the act required to be performed by the writ to be done by the plaintiff, or some other person appointed by the court, at the expense of the defendant; and upon the act being done, the amount of such expense may be ascertained by the court, who may order payment of the amount of such expenses and of the costs, and enforce payment thereof by execution.

CHAPTER II. INJUNCTION.

SUCH eing the procedure in actions to compel a specific performance of contracts or duties, I now come to describe the circumstances and the mode, in which the Superior Courts of Common Law may prohibit, by injunction, the commission of wrongful acts.

The subject of preventive remedies was thus treated of by the former Common Law Commissioners (Third Report, pp. 18, 19):—

"The ordinary scope of the legal remedy is to "give compensation or redress for injuries sus"tained, and it affords in general no means for 66 preventing their commission. On the other "hand, the practice of the Courts of Equity, by way of injunction, extends not only to the pro"tection of equitable rights, but of those also "for the violation of which an action lies at "common law.

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"A Court of Equity will, by injunction, restrain "waste in all cases. It will also restrain in 66 cases of irremediable mischief, ¿.e. such mischief as cannot, when cominitted, be adequately compensated by damages. Equity has in this "respect gradually enlarged a jurisdiction, which "it originally assumed by analogy to the case "of waste; and the instances in which it now gives this species of relief, where common "law rights are invaded, may be classed as "follows: 1. Waste; 2. Trespass, and Torts

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Injunction.

"in particular cases, where, if the defendant 66 were suffered to proceed in the commission "of the injury, there would be no adequate "remedy at law. The principal of these are, 66 trespass by the defendant's working from "his own mine into the plaintiff's; infraction "of copyrights or patent rights; destruction "of deeds or chattels belonging to the plaintiff, "and having a peculiar value not to be estimated "in money (in which latter cases the court "enforces restoration also); 3. Breach of con

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tract, where there is a contract to abstain from "doing a specific thing, and the damage sus"tained by its violation cannot be precisely or "conveniently estimated in damages. Thus, if 66 a lessee covenant to spend all his hay on the farm, or if a person covenant not to carry on a "certain trade within a certain district, a Court "of Equity will restrain such party from removing "the hay, or carrying on the trade.”

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There was no good reason why a Court of Law should not restrain violations of legal rights in the cases in which an injunction might issue for that purpose from the Courts of Equity. It was suggested that henceforth a party injured should not only be entitled to maintain an action, but that in the declaration he should be permitted to claim the prohibition of a wrongful act commenced or threatened, either separately or together with damages for any injury he had actually sustained. To make the plaintiff's remedy complete, it was evidently essential to provide that the application for a prohibitory writ might be made at any stage of the cause, either before or after judgment; and, for the protection of the defendant, that it should be granted or denied upon such terms, as to keeping an account, giving security, or otherwise, as should be thought just.

Accordingly, in all cases of breach of contract Injunction. or other injury, where the party injured is entitled to maintain and has brought an action, he may 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 (s. 97).

The claim is to be made in the same manner as claim of the claim of a writ of mandamus (s. 79). The Injunction. writ of summons is to be in the same form as the writ of summons in a personal action, but on the writ and copy must be endorsed 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 (s. 80).

in the action

Having thus endorsed his writ, the plaintiff Proceedings may in his declaration include a claim for damages, or other redress (s. 79). The proceedings in the action are to be the same, as nearly as may be, as the proceedings in an action to obtain a mandamus. Judgment may be given that the writ of injunction do or do not issue as justice may require; and in case of disobedience, the writ of injunction may be enforced by attachment by the court, or when the court is not sitting, by a judge (s. 81).

The claim of a writ of injunction need not necessarily be made when the writ of suinmons is sued out. It may be obtained at any stage of the cause at which it becomes necessary; for the plaintiff may at any time, whether before or after judgment, apply ex parte for a writ of injunction, to restrain the defendant from the repetition or continuance of the wrongful act or breach of contract complained of, or from the committal of any breach of contract or injury of a like kind,

Injunction. arising out of the same contract, or relating to the same property or right (s. 82). The writ, if such an application be made, may be granted or denied, upon such terms as to its duration, keeping an account, giving security, or otherwise, as may seem reasonable and just (s. 82).

The application may be made to, and the writ be issued by order, either of the court or a judge; but any order made by a judge, or any writ issued by virtue thereof, may be discharged, or varied, or set aside by the court, on application by any party dissatisfied with such order (s. 82).

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