PREVENTION CHAP. VIII. motion whether the party shall be discharged or bailed, and if the latter, will direct the bail to be taken before a magistrate in the neighbourhood. (0) OF INJURIES LEGALLY. Present practice to the Lord Chancellor. With respect to the number and amount of the bail, the Court of King's Bench invariably require four sureties on charges of felonies. (p) The rule is, where the offence is primû facie great to require good bail, moderation nevertheless is to be observed, and such bail only is to be required as the party is able to procure, for otherwise the allowance of bail would be a mere colour for imprisoning the party on the charge. (q) Nor will the court, at the instance of the prosecutor, increase the amount of the bail after they have once been taken. (r) The bail do not, as in civil cases, formally depose to their sufficiency, but after reasonable time for inquiry, are taken absolutely.(s) It will be observed that the principal habeas corpus act, as to application 31 Car. 2, c. 2, only relates to criminal charges, and only authorizes the Chancellor to issue an habeas corpus in vacation, whilst the 56 Geo. 3, c. 100, only applies to imprisonments, not for crimes, and gives the Chancellor no jurisdiction whatever. But the Lord Chancellor has at common law jurisdiction to grant an habeas corpus as well in vacation as in term, and Jenkin's case, in which Lord Nottingham was of a contrary opinion, has been overruled. (t) But in modern practice, an application to the Chancellor is seldom made under the statute of Car. 2, or at common law, except in cases depending in his own court, for the ordinary purpose of commitment, or of changing the custody. (u) But besides the mode of being relieved from illegal imprisonment by writ of habeas corpus, there are numerous cases where by particular acts of parliament, or by the practice of each court, a party is to be discharged on motion, and sometimes by mere application to the judge. As where an ambassador or his servant, (x) or a certificated bankrupt, (y) or a discharged in (0) Rex v. Jones, 1 Bar. & Ald. 209; Rei v. Massey, 6 M. & S. 108. Mr. Evans, in his collection of statutes, observes, that the liberty of the subject would be materially promoted by giving the judges a discretionary power to discharge from illegal commitments by rule of court or order, without the necessity of the actual appearance of the party, which in most cases has no other effect than a great accumulation of expense, and the necessity of which often occasions a material failure of justice, as any person who has been in the habit of perusing the calendar of courts of quarter sessions will be easily convinced of. (p) Rex v. Shaw, 6 D. & R. 154. (q) Rex v. Wilkes, 2 Wils. 159. (r) Rex v. Salter, 2 Chit. R. 109. (s) Rex v. Hall, 2 Bla. R. 1110; Tidd, 9 ed. 253, note (d). (t) See the judgment of Lord Eldon in Ea parte Crowley, 1 Swanst. 1; Buck, 264, S. C.; 1 Mad. Ch. Pr. 21. (u) Ex parte Oliver, 2 Ves. & Bea. 248: 2 Mad. Ch. Pr. 711; Chit. Eq. Dig. tit. Practice, xliv. 1031. (a) Tidd, 9th ed. 199, 201, 212, 214, 216. (y) 6 Geo. 4, c. 16, s. 126. PREVENTION LEGALLY. solvent, (2) or where a party has been arrested whilst attend- CHAP. VIII. ing the court as a party or witness. In these cases, although a habeas corpus may be requisite if the officer wrongfully refuse to bring the party into court, (a) yet in general that writ is not necessary, and the party may be discharged on affidavit and motion, or sometimes by summary application even without affidavit, and upon mere undisputed statement to the court or the judge sitting at nisi prius at the time the illegal arrest has been made. (b) A summary mode of interfering, which, when the facts are not disputed, is exceedingly salutary, and advisable to be extended. (c) of Common law. The preventive remedies by application to the Superior Preventive reCourts are, first, those to Courts of Law, and secondly, those to medies in the Superior Courts. Courts of Equity. The former are few compared with the latter, which are of great variety. In Courts of Law sometimes First, In courts preventive proceedings may be adopted, as summary applications and motions to set aside a warrant of attorney and judgment thereon, which it is feared may be attempted to be enforced; (d) or to set aside an annuity under the 53 Geo. 3, c. 141; (e) or where a similar summary proceeding has been given by particular statutes, or may be founded upon the general practice of each court in respect of some irregularity in the proceedings. The ancient writ of Estrepement of Waste was also an advantageous proceeding at common law to prevent waste, and might now with utility be revived in practice; (ƒ) and at common law the writ Quod permittat prosternere a nuisance, was and still might be a very effective proceeding to prevent the continuance of a private nuisance. (g) But in mo ́dern times the preventive proceedings in equity by bill and injunction have been found so summary and salutary, that at present recourse is scarcely ever had to any of the ancient specific common law remedies. ventive reme Courts of Equity have a very extensive, expeditious, and Secondly, Presummary jurisdiction by writ of Injunction, and founded on a dies in Courts bill filed to prevent, and sometimes virtually to remove, most of Equity in general. CHAP. VIII. private injuries and public nuisances. It has been observed PREVENTION in a valuable work, (h) that an injunction is a writ issuing by the OF INJURIES LEGALLY. order and under the seal of a Court of Equity, of two kinds, the one remedial, the other judicial; the former to prevent injuries, the latter to enforce a decree for specific performance and in the nature of an execution, containing a direction to yield up, to quit, or to continue the possession of houses or land, followed by a writ to the sheriff commanding him to deliver the possession. The former may relate to proceedings in Courts of Law, as to stay proceedings in Courts of Law, or in the Spiritual Courts, or in Courts of Admiralty, or in some other Court of Equity, or, as unconnected with legal proceedings, may be to restrain the indorsement or negotiation of bills of exchange and promissory notes, or the sale of land, or the sailing of a ship, the transfer of stock, or the alienation of a specific chattel, to prevent the wasting of assets or other property pending a litigation, to restrain a trustee from assigning the legal estate, or any party from setting up a term of years and thereby precluding the trial of the real right, or to restrain assignees from making a dividend, to prevent a party from removing out of the jurisdiction, or marrying, or having any intercourse with a ward or even parent, which the court disapproves of; to restrain the commission of every species of waste to houses, mines, or timber, or any other part of the inheritance; (i) to prevent the infringements of patents and the violation of copyrights, either by publication or theatrical representation; to suppress the continuance of public or private nuisances; and by the various modes of interpleader to restrain vexatious or multifarious suits, or to quiet possession before pending suit or after decree, or to stop the progress of other vexatious litigation. These are the principal instances of the interference of courts of equity to prevent injustice. (k) But we will presently examine injunctions fully, and under the following arrangement, viz. first, as relates to the Person; secondly, Personal Property; and thirdly, as to Real Property. It will be found that the interference of Courts of Equity is a jurisdiction assumed at common law, and is rarely exercised by authority of any legislative enactment. () The principle upon which the courts interfere is, that if the party were allowed to proceed in his wrongful act, an action might afford (h) Eden on Injunctions. (i) So to prevent waste by a tenant in common on account of his poverty, though the court would not otherwise have inter fered, 3 Thomas, Co. Lit. 244, note 26; OF INJURIES LEGALLY. but an imperfect remedy for the injury, and damages might be CHAP. VIII. incapable of complete proof, the injury might be to an incalcu- PREVENTION lable extent, and the wrong-doer insolvent, and unable to make compensation; (m) and the proceedings in many of these cases, as in those of waste and piracy of copyrights, besides preventing the wrong-doer from future waste or injury, compels him to keep and render an account, and make compensation for the past. (n) And although the court will sometimes refuse to grant an injunction in the first instance, on the ground that the right is doubtful, yet they will frequently compel the defendant in the mean time to keep an account of his sale and profits, and in case the decision should be finally against him, to render the same and pay what is just. (0) Consequently it is better to suspend the completion of the expected injury until at least the right to commit it has been tried. It will be observed that as there is no compensation at law in damages for the consequences of maliciously or without adequate cause granting an injunction, and thereby preventing another person from exercising his trade, or pursuing any other profitable undertaking, great caution should be observed before granting an injunction will not It should seem that the principles upon which injunctions Courts of are in general granted would apply even more strongly to pre-interfere to prevent the commission of crimes, the law for preventions of crimes vent a Crime being even preferable to those of punishment.(p) But neverthe- nor a Libel. less the general rule is, that Courts of Equity will not interfere to prevent the commission of any crime, (q) excepting to restrain a libel upon an infant (who is under the peculiar protection of a Court of Equity), (r) and excepting such cases of public nuisances as are more particularly injurious to particular individuals in the neighbourhood, and also constitute private injuries. (s) In the case of .Gee v. Pritchard, (r) the counsel, in support of a motion to dissolve an injunction against publishing letters, having cited Hudson's Treatise on the Court of Star Chamber, (t) and urged that there was no trace of any inter 255, 256; Eden's Inj. 42, 315 to 318; (r) Gee v. Pritchard, 2 Swanst. 413. (t) 2 Collect. Jurid. 1, 239. PREVENTION LEGALLY. CHAP. VIII. ference of that tribunal by injunction or otherwise on the subject of letters unless the publication was libellous, the chancellor said, "It will not be necessary to trouble you with that view of the case. The publication of a libel is a crime, and I have no jurisdiction to prevent the commission of crimes, excepting of course such cases as belong to the protection of infants, when a dealing with an infant may amount to a crime, an exception arising from that peculiar jurisdiction of this court." And he further observed, that an injunction cannot be sustained on the ground that the publication of the letters will be painful to the feelings of the plaintiff; and he said neither can this injunction be maintained on any principle of this sort, that if a letter had been written in the way of friendship, either the continuance or discontinuance of that friendship affords a reason for the interference of the court. (u) In short, courts of equity will not interfere to prevent the commission of any crime whatever, as to prevent the publication of a libel, (†) and therefore when the publication of letters has been prevented, it has been on the ground of copyright in the writer, and not with any view to prevent the libel. And it has been said that a Court of Equity has no cognizance of a libel unless it is a contempt by being an abuse of their proceedings, as scandalizing the court or the parties, or prejudicing mankind before the cause has been heard. (y) And in the work before referred to, speaking of the observations of Lord Ellenborough in the case of Du Bost v. Beresford, that "upon an application to the lord chancellor he would have granted an injunction against the exhibition of a libellous picture," it is stated that that proposition was a hasty dictum, and obviously erroneous, and excited the astonishment of all the practitioners of the Courts of Equity. (2) So speaking of frauds, it has been laid down that some are of such turpitude that only the criminal courts have jurisdiction over them, because Courts of Equity do not affect to consider fraud in the light of a crime; it is not their province to punish, nor have they a censorial authority; they interfere in cases of fraud in a civil, and not in a criminal point of (u) Gee v. Pritchard, 2 Swanst. 413; Lawrence v. Smith, 1 Jacob's Rep. 473. (x) Gee v. Pritchard, 2 Swanst. 402 to 422; and see observations of Lord Eldon in Southey v. Sherwood, 2 Meriv. 410, 441; and see In re Champion, 2 Atk. 469; Eden on Injunctions, 315 to 318. (y) In re Champion, 2 Atk. 469. (z) Eden, 315, 316; Du Bost v. Beresford, 2 Campb. 511; ante, 20, 648 (g); Howell's St. Tr. 799, note. As the chan cellor is a justice of the peace, and may require surety of the peace, semble, he might clearly in that character have prevented the publication of the picture. |