3. Injunction granted, prohibitory
in form, but mandatory in its ef-
fect. Earl of Mexborough v.
Bower.
127
4. Tenant of a mine restrained, on
motion, from permitting a com-
munication with an adjoining mine
to continue open, and water to
flow through the same, the effect
intended being to compel the De-
fendants to close the communica-
tion.
5. Upon an injunction to restrain an
action at law, on the ground both
of legal and equitable fraud, the
Court, admitting its jurisdiction
to determine the legal fraud, per-
mitted the action to proceed, in
order to determine the question of
legal fraud, and restrained execu-
tion only, with liberty to apply.
The jury having found that there
was no legal fraud, this Court
afterwards entered into the con-
sideration of the question of equit-
able fraud, and finding none to
exist, permitted execution to be
taken out. Clarke v. Manning.
6. The common injunction against
several Defendants may be dis-
solved as to some, before all have
answered, and the proper course
of proceeding for that purpose is,
for those who have answered to
obtain an order nisi, as of course.
Lewis v. Smith.
Page 470
Upon a motion, made on the last
seal after Trinity term, for an
Order absolute to dissolve the
common injunction, the Plaintiff
will not be allowed until the next
motion day to shew cause on the
merits; but the Court will appoint
an early day in the vacation for
that purpose. Stagg v. Brown.
8. Exceptions were shewn as cause
on the day they were filed. Held
that they might be referred in-
stanter, notwithstanding the 16th
Order of May 1845, Art. 25.
Hughes v. Thomas.
584
See TRADE MARKS.
See PRELIMINARY ENQUIRIES, 2.
INSOLVENT ACT.
See ASSIGNEE.
INTERROGATORIES.
1. The 17th Order of August 1841
was intended to apply to cases in
which there are several Defend-
ants
ants answering separately. Bate
v. Bate.
Page 528
2. The only two Defendants re-
quired to answer, joined in one
answer. It was found insufficient,
and the Plaintiff obtained an order
to amend, and that the Defendants
might answer the exceptions and
amendments together. Some of
the original interrogatories were
altered, and new ones added; but
the note to the amended bill re-
quired the Defendants to answer
all the interrogatories, without ex-
cepting those previously answer-
ed. Held, that there was no
irregularity.
In 1817, a tenant for life of frechold
estates, subject to long outstand-
ing terms, granted a personal an-
nuity to the Plaintiff, secured by
warrant of attorney, on which judg-
ment was forthwith entered up
and docketed. Afterwards, in 1818
and 1819, he created other in-
cumbrances, two of which were
by demises of the estate. The
Plaintiff did not sue out any elegit
till 1822, when he did so. The
inquisition being duly returned,
he commenced an action of eject-
ment, which he discontinued, in
consequence of the outstanding
terms. In a suit to which the
Plaintiff was no party, the pri-
orities of the other incumbrancers
were declared. The Plaintiff,
within twenty years from the last
payment of the annuity, filed this
bill against all the other parties,
to have it declared that he was
entitled to stand as first incum-
brancer; that the decree, &c.
might be altered, or that the
Plaintiff might be at liberty to
proceed at law, and that the De-
fendants might be restrained from
setting up the terms. One of the
defences was, that the Plaintiff's
annuity was usurious. The Court
held that the Plaintiff was not
barred by the proceedings in the
suit, and retained the bill for a
year, giving the Plaintiff leave to
bring an action for the recovery
of the freehold, and restraining
the Defendants from setting up
the terms; and also, (though not
specifically asked by the bill),
from setting up the statute of
limitations. The Court also re-
fused to interfere with the appli-
cation of the rents in the mean-
time, or to grant enquiries as to the
validity of the Plaintiff's charge,
holding that prima facie credit
was to be given to the judgment,
and that if the Defendants had any
equitable case to make against
the judgment, they ought to adopt
proceedings of their own to esta-
blish that case. Smith v. Earl of
Effingham.
Page 357
JURISDICTION.
1. No equity can be founded on an
allegation, that a court legally
constituted is not properly com-
petent to decide questions within
its jurisdiction; and where the
legislature has given jurisdiction
to a court provided by the act,
and has made its decision final, if
any inconvenience arises from the
legal exercise of the jurisdiction,
the legislature alone can supply a
remedy. The Barnsley Canal
Company v. Twibell. Page 19
A canal act provided, that in
case the company and the coal
owner could not agree as to the
amount of compensation for the
coal taken for the purposes of the
canal, it should be settled by a
jury summoned by the commis-
sioners, whose verdict was "to
be conclusive, and should not be
removed, by certiorari or other
process whatever, into any of the
courts of record at Westminster,
or any other court." A bill was
filed, praying an injunction to re-
strain proceedings before a jury,
on the ground that the Defendant
was entitled to no compensation,
and that the special jurisdiction
provided by the act was not so
constituted as to be likely to come
to a just conclusion. Held, that
the Plaintiffs were not entitled
to an injunction if the Defendant
was entitled to any compensation,
the amount of which had to be
ascertained; but whether this
Court had any jurisdiction to in-
terfere in the matter, if it had
clearly appeared that the Defend-
ant was entitled to no compensa-
tion, quære.
Ibid.
See AMENDMEnt, 2.
FRAUD, 1, 2.
MASTER.
PROBATE.
mortgagee, to enable him to sell
the property, handed them to
his solicitor, in order to com-
plete. The mortgagee acquiesced
in the sale. Held, that the so-
licitor had a lien on the deeds
for his costs of the transaction
only, but not for his other claims
for costs against the mortgagor.
Young v. English. Page 10
2. Extent of lien on a fund, where
the grantor of an annuity agreed
to sell to the grantee the fund on
which the annuity was secured, and
to repurchase the annuity, but, in
consequence of a mutual mistake,
the contract for the sale of the
fund could not be specifically
performed. Colyer v. Clay. 188
After bill filed, but before subpœna
served, the Defendant assigned
the subject-matter of the suit:
Held, that the assignee was a ne-
cessary party, and that the Court
would, if necessary, grant an in-
junction to restrain any further
assignment. Powell v. Wright.
444
LOCO PARENTIS.
See PARENT AND CHILD.
A. was found lunatic in Ireland, and
B. was appointed his committee
there. A. being a Defendant to
a suit in England, an application
was made that B. might be ap-
married under age, and a settle-
ment was made giving half to the
wife for her separate use, and the
other half to the husband. A bill
was filed by the husband and wife,
after the latter had come of age,
against the trustees, seeking to
charge them with a breach of
trust. The Court thought the
frame of the suit improper, but
gave leave to amend; and the
wife being, by amendment, made
to sue by her next friend, a decree
was made. Davis v. Prout.
Page 288
2. The bill sought to charge trustees
with mismanagement and misap-
plication of the trust estate. The
answer insisted that one of the
two co-Plaintiffs had acquiesced.
The Court, upon motion, gave
leave to amend by making such
co-Plaintiff a Defendant, upon
payment of the costs of the appli-
cation, and giving security for the
costs already incurred. The costs
of the misjoinder were reserved to
the hearing. Bather v. Kearsley.
See VENDOR AND PURCHASER, 1.
A fund was held on trust for one for
life, with remainder between B. and
C. equally, if living, with benefit
of survivorship between them. B.
sold his reversionary interest. At
the time of the sale C. was dead,
but the fact was neither known to
the
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