writ of

73. The writ of mandamus so issued as aforesaid shall Effect of have the same force and effect as a peremptory writ of mandamus, mandamus issued out of the Court of Queen's Bench, and proceedand, in case of disobedience, may be enforced by attach-ings to en

ment.

force it.

the act to

of the defen

74. The court may, upon application by the plaintiff, The court besides or instead of proceeding against the disobedient may order party by attachment, direct that the act required to be be done at done may be done by the plaintiff, or some other person the expense appointed by the court, at the expense of the defendant; dant and upon the act being done, the amount of such expense may be ascertained by the court, either by writ of inquiry or reference to a master, as the court or a judge may order; and the court may order payment of the amount of such expenses and costs, and enforce payment thereof by execution.

[MANDAMUS.]

writ of

75. Nothing herein contained shall take away the Prerogative jurisdiction of the Court of Queen's Bench to grant mandamus writs of mandamus; nor shall any writ of mandamus preserved. issued out of that court be invalid by reason of the right of the prosecutor to proceed by action for mandamus under this Act.

tive writ of

76. Upon application by motion for any writ of Proceedings mandamus in the Court of Queen's Bench, the rule for preroga may in all cases be absolute in the first instance, if the mandamus court shall think fit; and the writ may bear teste, on accelerated. the day of its issuing, and may be made returnable forthwith, whether in term or in vacation, but time may be allowed to return it, by the court or a judge, either with or without terms.

INTRODUCTION, pp. vii-viii.

on preroga

77. The provisions of the "Common Law Procedure Proceedings Act, 1852," and of this Act, so far as they are applica- tive writ of ble, shall apply to the pleadings and proceedings upon mandamus. a prerogative writ of mandamus issued by the Court of Queen's Bench.

This section will remove the doubt which has arisen, whether the enactments as to pleading, of "The Common

Law Procedure Act, 1852," applied to proceedings in MANDAMUS. (Reg. v. Sadlers' Company, 1 Com. Law Rep. 523).

Specific delivery of chattels.

78. The court or a judge shall have power, if they or he see fit so to do, upon the application of the plaintiff in any action for the detention of any chattel, to order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining such chattel upon paying the value assessed, and that if the said chattel cannot be found, and unless the court or a judge should otherwise order, the sheriff shall distrain the defendant by all his lands and chattels in the said sheriff's bailiwick, till the defendant render such chattel, or, at the option of the plaintiff, that he cause to be made of the defendant's goods the assessed value of such chattel; provided that the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defendant's goods, the damages, costs, and interest in such action.

Courts of equity have, from a very early period, compelled the return of specific chattels. This jurisdiction seems formerly to have been confined in its exercise to cases where the chattels were of peculiar value to the owner, as, for instance, heir-looms, jewellery, articles of curiosity or antiquity, family pictures (Pusey v. Pusey, 1 Vern. 273; Duke of Somerset v. Cookson, 3 P. Wms. 389; Saville v. Tancred, 1 Ves. 101; Fells v. Read, 3 Ves. 71), or titledeeds (Brown v. Brown, 1 Dick. 62; Duncombe v. Mayer, 8 Ves, 320; Jackson v. Butler, 2 Atk. 306). More recently it has been laid down that the right, to be protected in the use or beneficial enjoyment of property in specie, is not confined to articles possessing any peculiar or intrinsic value, if there be any fiduciary relation between the parties (Wood v. Rowcliffe, 3 Hare, 304; and see Linigen v. Simpson, 1 S. and S. 600). In these cases of trust, the Courts of Common Law will not be able to interfere.

The Court of Chancery interfered in cases of detention of chattels, because in the action of trover, damages only were recovered, while in detinue, the defendant had it in his power, if he chose, to retain the article upon payment of the value as assessed by the jury. The damages recovered in either action, although equal to the intrinsic value of the article detained, might be infinitely less

than that at which it was estimated by the owner, so Specific delithat damages might not be anything like adequate com- very of pensation to him for the loss. "The Pusey Horn, the chattels. Patera of the Duke of Somerset " (observes Lord Loughborough), were things of that sort of value that a jury might not give twopence beyond their weight."

66

* * *

In all cases where the object of the suit is not liable to a compensation by damages, it would be strange if the law of this country did not afford any remedy. It would be a great injustice if an individual cannot have his property, without being liable to the estimate of people who have not his feelings upon it. (Fells v. Read, 3 Ves. 71.)

The Courts of Common Law have now, after judgment in an action of detinue, the same power to compel the return of a chattel as the Court of Chancery.

[INJUNCTION.]

79. In all cases of breach of contract or other Claim of writ injury, where the party injured is entitled to maintain of injunction. and has brought an action, he may, in like case and manner as herein-before provided with respect to mandamus, 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; and he may also in the same action include a claim for damages or other redress.

See INTRODUCTION, pp. xiii-xvi.

In order to entitle a party to claim a writ of injunction, three circumstances must combine :

1. There must be a breach of contract or other injury. 2. It must be such a breach or injury as entitles the party injured to maintain an action.

3. Such action must have been commenced.

In every respect, therefore, the powers conferred on the Courts of Common Law, with respect to injunction, are inferior to those exercised by the Court of Equity, and in one respect they fall short of the powers intended to he conferred; for the former Common Law Commissioners, whose recommendations were essentially adopted by the present, suggested that the powers to be conferred on the Common Law Courts should include cases of threatened injury.

It would be too wide a field to enter upon, to discuss

Claim of writ of injunction.

Form of writ

and endorse

the various cases in which the writ of injunction may be claimed. Its use, however, will be found chiefly in the following classes of cases: actions by reversioners for waste, such as cutting timber and breaches of covenant, including, of course, the various claims on farming and other leases; actions for infringement of prescriptive rights and easements, as ways, common, water, water-courses, and lights; actions for nuisances of various kinds; and actions for infringement of letters patent and copyrights.

66

66

In respect of patents, the "Patent Law Amendment Act, 1852" (15 and 16 Vic., c. 83, s. 42), has provided that "in any action in any of Her Majesty's superior courts "of record at Westminster * for the infringe"ment of letters patent, it shall be lawful for the court "in which such action is pending, if the court be then sitting, or if the court be not sitting, then for a judge of "such court, on the application of the plaintiff or de"fendant respectively, to make such order for an injunc tion, inspection, or account, and to give such direction respecting such action, injunction, inspection, and account, and the proceedings therein respectively, as to "such court or judge may seem fit." It has been held that under this section the court has power to grant an injunction after a judgment recovered in an action, and accordingly after a verdict for nominal damages for an infringement of a patent, the court ordered the defendant to render an account and pay over to the plaintiff the profits made by him from the use of the plaintiff's patent, from the time he had received notice from the plaintiff that he was required to keep such account, to the time when he should cease to use the patent. (Holland v. Fox, Weekly Reporter, 1853-4, p. 558.)

80. The writ of summons in such action shall be in of summons the same form as the writ of summons in any personal ment there- action; but on every such writ and copy thereof there shall 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.

on.

Form of pro81. The proceedings in such action shall be the ceedings and same, as nearly as may be, and subject to the like of judgment. control, as the proceedings in an action to obtain a mandamus under the provisions herein-before contained; and in such action judgment may be given that the writ of injunction do or do not issue, as justice may require; and in case of disobedience, such writ of

injunction may be enforced by attachment by the court, or, when such courts shall not be sitting, by a judge.

82. It shall be lawful for the plaintiff at any time after Writ of inthe commencement of the action, and whether before junction may or after judgment, to apply ex parte to the court or a for at any be applied judge for a writ of injunction to restrain the defendant stage of in such action from the repetition or continuance of the cause. the wrongful act or breach of contract complained of, 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; and such writ may be granted or denied by the court or judge upon such terms as to the duration of the writ, keeping an account, giving security, or otherwise, as to such court or judge shall seem reasonable and just, and in case of disobedience, such writ may be enforced by attachment by the court, or, when such courts shall not be sitting, by a judge: Provided always, that any order for a writ of injunction made by a judge, or any writ issued by virtue thereof, may be discharged or varied or set aside by the court, on application made thereto by any party dissatisfied with such order.

INTRODUCTION, p. xiv, note to s. 79, ante.

[EQUITABLE DEFENCES.]

83. It shall be lawful for the defendant or plaintiff Equitable in replevin in any cause in any of the superior courts defence may be pleaded. in which, if judgment were obtained, he would be entitled to relief against such judgment on equitable grounds, to plead the facts which entitle him to such relief by way of defence, and the said courts are hereby empowered to receive such defence by way of plea; provided that such plea shall begin with the words" for defence on equitable grounds," or words to the like effect.

See INTRODUCTION, pp. xxiv-xxvii. As there stated, it would be impossible to comprise, in a short space, the various cases in which these important provisions will be available.

Some examples, however, may be given by way of illustration:

One head under which Courts of Equity have constantly given relief, has been that of "accident." At law, an