CHAPTER VI. OF EQUITABLE REMEDIES. § 313. Of Prohibitory and Mandatory Injunctions. Equitable remedies are those which are applied by courts of equity, in cases where the only proper legal remedies would fail to give adequate relief. They are of two classes: (1) Those which are designed to prevent the commission or continuance of wrongs; (2) Those which are designed to redress wrongs already committed. Those which are designed to prevent wrongs are called injunctions. An injunction is a mandate, issuing out of a court of equity and enjoining the respondent, under suitable penalties, to refrain from the commission of some wrongful act, or to prevent the continuance of some wrong already in operation. When it merely forbids the doing of an act, it is known as a prohibitory injunction. Where it necessitates the doing of an act in prevention or suppression of a wrong, it is known as a mandatory injunction. Read 1 Story Eq. Jur., §§ 25–33, 59–74. 2 Story Eq. Jur., §§ 861, 862. Willard Eq. Jur., pp. 341, 342. Kerr Inj., pp. 11, 230-232, 605–646. § 314. Of Temporary and Perpetual Injunctions. An injunction, as to its effect, may be either temporary or perpetual. A temporary injunction prohibits the commission of the alleged wrongful act only until some definite date, or until further order of the court. Its object is to pre serve the rights of parties intact, until the merits of the controversy can be fully investigated. When such injunctions are issued upon the application of the petitioner, without previous notice to the respondent, they are called ex parte injunctions. A perpetual injunction is granted at the conclusion of an investigation, and forever prohibits the contemplated wrong. Read 2 Story Eq. Jur., § 873. Willard Eq. Jur., p. 341. Kerr Inj., pp. 11, 12, 224-230. High Inj., §§ 3-17, 878-945, 1001-1019. § 315. Of Injunctions against Fraud. The principal purposes, for which injunctions may be issued, are the following: (1) To prevent fraud; (2) To prevent irreparable injury to property; (3) To prevent certain wrongs against personal security; (4) To prevent certain wrongs against relative rights. Fraud embraces every kind of artifice, by which one person can obtain an unjust advantage over another. It may consist in actual falsehood and deceit, or in the concealment of material facts, or in any other acts by which a proper confidence and trust are violated. It is also implied, in equity, from the circumstances or relations of certain contracting parties, and from the intrinsic nature of certain transactions. Any attempt to enforce against another an advantage obtained over him by fraud, whether such advantage were obtained by proceedings at law, or by a contract, or in any other manner, may be frustrated by an injunction. Read 1 Story Eq. Jur., §§ 187-189. 2 Story Eq. Jur., §§ 874-908. Willard Eq. Jur., pp. 345–367. High Inj., §§ 44, 45, 84-89, 109-128, 248, 709-782. § 316. Of Injunctions against Irreparable Injury to Property. An irreparable injury to property is an injury for which the owner of the property cannot be compensated by the mere payment of money. In reference to real property, waste, nuisance, and certain forms of trespass are generally regarded as irreparable injuries. The destruction of some kinds of personal property, the infringement of patents, copyrights, and trade-marks, and sometimes even the misuse of personal property, in which another has an interest, are of the same nature, and, like them, may be prevented by injunction. Read 2 Story Eq. Jur., §§ 909–959. Willard Eq. Jur., pp. 367, 368, 370-401. Adams Eq. Jur., pp. 207–219. Kerr Inj., pp. 196-200, 235-255, 267-274, 287-297, 332-334, 337-340, 350, 354, 360–369, 393-395, 400-403, 439, 441-445, 474489, 492-497, 535-539, 590-597. High Inj., §§ 388-673. § 317. Of Injunctions against Injuries to Health and Comfort. The wrongs against personal security, for the prevention of which injunctions are most frequently issued, are injuries to health. These are all classed under the head of nuisances, and may arise from the production, by another, of offensive and injurious odors or disagreeable noises, or from the collecting together of persons, in a turbulent manner, to the disturbance of the peace and quiet of a neighborhood, or from the keeping unguarded of ferocious animals in such a manner as to excite fear and apprehension, or from any other acts of similar character and effect. Injunctions have also been granted to prevent threatened assaults. Read 2 Story Eq. Jur., § 926. Willard Eq. Jur., pp. 389, 390. Kerr Inj., pp. 360–366. High Inj., §§ 491-493. § 318. Of Injunctions against Injuries to Relative Rights. Wrongs against relative rights may be prevented by injunction, when irreparable injury might otherwise be committed. Thus a guardian may, by injunction, prevent the marriage of an infant ward; a parent may obtain the same relief by settling property upon his child, and procuring himself to be appointed as its guardian; parents may be enjoined against an unwarranted interference with their children, and a husband may be enjoined against tyrannical restraint upon his wife. Read 2 Story Eq. Jur., §§ 1341-1360. § 319. Of the Specific Performance of Contracts. Equitable remedies of the second class are applied chiefly in the following cases: (1) To secure the specific performance of certain contracts; (2) To set aside certain contracts; (3) To correct the language of written contracts in accordance with the original intention of the parties; (4) To give an equitable interpretation to contracts; (5) To relieve against fraud; (6) To settle mutual accounts, where, by reason of the number of the parties or the character of their respective claims, justice cannot be done in a court of law; (7) To foreclose or redeem mortgages; (8) To regulate the separate property of married women; (9) To appoint and control receivers; (10) To regulate trusts; (11) To perpetuate evidence; (12) To compel a discovery; (13) To enforce or set aside awards; (14) To aid the execution of the judgment of a court of law. The specific performance of a contract can be enforced only in a court of equity, the only redress, obtainable at law for breach of contract, being a money-compensation for the damage actually sustained. In many cases, however, such a compensation would be entirely inadequate. This is especially true of contracts for the sale of lands, where the vendor refuses to perfect the sale, but is also true in many contracts concerning personal property. In all such cases, if the contract is fair, equitable, and capable of being fully executed, a court of equity will order that it be specifically performed by the defaulting party. Read 3 Bl. Comm., p. 426 n. 1. 2 Story Eq. Jur., §§ 708-793 b. § 320. Of the Rescission of Contracts. A court of equity will also set aside or abrogate a contract which it would be inequitable to enforce. In general, a contract, entered into honestly and understandingly by both parties, will bind both, however disadvantageous to one or the other the performance of the same may be. But when either party has practised any fraud upon the other, or taken advantage of any confidential relationship between them, or exercised undue influence over the other, or where both parties have entered into the contract under a mistake, or where the contract is itself contrary to public policy, it is within the province of the court to protect |