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III. THE LAW OF INJUNCTIONS.

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HAVING AVING in our issue of June last briefly noticed the work of Mr. Joyce upon this subject, we return to it at present for the purpose of criticising it in a more elaborate and discriminating manner.

First of all, Mr. Joyce's two volumes are conceived upon an exhaustive scheme, and profess to notice every reported case in which an injunction, whether relating to real or to personal property, has formed a material part of the relief prayed. The work, therefore, demands a method of treatment other than that which is suitable to any of those abridgments of larger treaties which have recently been somewhat numerous.

It is curious to watch the growth of special heads of law. Mr. Eden published his work on the "Law and Practice of Injunctions" in 1821; Mr. Drewry followed with his work upon the same subject in 1841, and again with his supplement in 1849; and now Mr. Joyce has culminated the series for the present. The solid dimensions of Mr. Eden's work may be estimated at 50 cubic inches; and if so, Mr. Drewry's work would have to it the ratio of 70 cubic inches, the growth of 20 cubic inches making the products of twenty intervening years; and lastly, Mr. Joyce's work, adopting the same measure of comparison, is not over estimated when stated to be at least. 200 cubic inches, or not much under three times the solid content of Mr. Drewry's work, and over four times that of Mr. Eden's. Pursuing the like argument, we should, therefore, say that the growth in cubical dimensions, which is exhibited by Mr. Joyce's work, should be taken as representing the growth of the law and practice of injunction during the twenty-five or thirty years that have last elapsed; nor would our own professional experience of the frequency of injunction cases during recent years belie this general conclusion. Surely, therefore, a work which aims at being so absolutely complete, as that of Mr. Joyce upon a subject which is of almost perpetual recurrence in the courts, cannot fail to be a welcome offering to the profession; and, doubtless, it will be well received and largely used, for it is as absolutely complete as it aims at being.

Mr. Joyce has, moreover, a great advantage over all previous writers on the subject, and that in many ways. For, not to mention that the first track in the forest is always more

"The Law and Practice of Injunctions in Equity." By William Joyce, Esq., of Lincoln's Inn, Barrister-at-Law. London: Stevens & Haynes. 1872.

difficult to guess than the subsequent path is to open out, the Jurisdiction Act of 1852 was not in existence when either of his two predecessors wrote, and consequently the simplicity in the outline of their works was somewhat marred by the distinction between common and special injunctions which existed previously to that Act, but which the Act abolished by its 58th section. The greater uniformity of the general procedure in Chancery, which the last mentioned Act has also introduced, has afforded a further facility for simplicity in this respect; and Mr. Joyce has wisely studied simplicity, by eschewing historical disquisitions, and by touching by refer ence merely, when he touches at all, upon the past. This work is, therefore, eminently a work for the practitioner, being full of practical utility in every page, and even sentence, of it.

So great, indeed, is the simplicity of the subject, that the author had no scope for ingenuity of arrangement. He has compensated his want of opportunity in this direction by the most ample indulgence in another-that of assiduity of compilation. Upwards of 3500 cases and 160 statutes are cited, the cases including not only the English cases, but a large selection of American cases also, together with the Scotch cases of interdict which have been appealed to the House of Lords. The English cases which are the most familiar to ourselves are cited without a single exception, the case of Sowerby v. Fryer which we had thought to be omitted being also given on page 177, the distinction which Lord Justice James drew in that case, and which we failed (as we still fail) to find expressly stated in Mr. Joyce's work, not having reference strictly to the injunction part of his decision, but to the application of the capital proceeds of a timber fund, which the injunction was too late to stay accumulating. The distinction, therefore, as not being altogether relevant, was not one which Mr. Joyce was bound to state; we find that he assigns it casually and indirectly to Knight v. Mosley, on p. 161, where he says that "patrons cannot pray any account of the profits for their own benefit as patrons," implying, therefore, that they may do so for the benefit of the church itself, this being, in fact, the distinction which was taken, and, as we said, most needfully, by Lord Justice James, in Sowerby v. Fryer.

We have examined more particularly those sections in the third part of Mr. Joyce's work which relate to the evidence which it is necessary to produce on the motion for an injunction (s. 11), to the effect of an amendment of the bill or other alterations in the pleadings on an injunction previously obtained (s. 12), and to the acts which amount to a breach of the injunction (s. 18). Regarding Mr. Joyce's treatment of cach of these, it may be well to say a little.

And first with regard to the evidence on motion for an

injunction. Mr. Joyce's statement is both complete and clear. The application must be supported by affidavits; and for this purpose the defendant's answer may be treated as an affidavit. The necessary affidavit or affidavits may be made by the plaintiff himself (as they usually are), or by any other person acquainted with the facts, e. g., by an agent of the plaintiff, when the plaintiff is himself abroad (Byron v. Johnston, 2 Mer., 29) or by the solicitor of the plaintiff, when the plaintiff himself is prevented by any valid reason from doing so (Spalding v. Keely, 7 Sim., 377). Moreover the affidavits must be made in a cause, and therefore they may not be made until after the bill is filed (Francome v. Francome, 13 W.R., 355), an inattention to this particular requisite being fatal to the validity of the injunction, if any, which is obtained (Williams v. Davies, 2 Coop. C.C., 172-4). Provided, however, the bill has been. put upon the file, the affidavits may be sworn immediately, and without waiting for the defendant to enter appearance in the suit, the plaintiff in this latter case producing, however, from the Office of Records and Writs a certificate of the due filing of the bill. Again, the affidavits to be used must, as a general rule, be such as have been filed subsequently to the date of the notice of motion; affidavits that have been filed previously to that date may, however, be made available on the motion, if notice of the plaintiff's intention to use them has been duly served on the defendant, or if the defendant choose to waive any objection on the ground of want of notice which he will be presumed as doing should he file an affidavit of his own in answer. Such being the terminus a quo, or limit of time, from which the affidavits must commence, the terminus ad quem, or limit of it up to which they may extend, is considerably more elastic; for, on motion for an injunction, counsel may make use of any affidavit filed before he rises to address the court, although not (unless in most exceptional circumstances) after he has commenced his opening (Munro v. Wivenhoe Railway Co., 13 W.R., 880). In very pressing cases an affidavit may even be sworn in open court (Mercers' Company v. G.N.R. Co., 13 W. R., 880). All these, among many other matters, Mr. Joyce points out with equal lucidity and brevity.

Secondly, with reference to the effect of an amendment of the bill, or other alteration in the pleadings, made subscquently to the injunction having been obtained. As a general rule, the subsequent amendment of the bill does not invalidate or prejudice the injunction, at least when the amendments are merely formal and the injunction has been obtained (as under the present system it always is) upon the merits; and it is not necessary that the amendment should be expressed to be without prejudice to the injunction

(Harvey v. Hall, L.R., 11 Eq., 31). Nevertheless, when the plaintiff has not yet obtained, but has merely given notice of motion for, an injunction, and he afterwards wishes to amend this Bill, in such a case he must even still (and properly), if he wish to save his notice, expressly ask that the leave to amend shall not be suffered to prejudice the notice (Monypenny v.--1 W.R., 99). But when the amendments are such as to materially affect the substance of the record, or to put the defendant to some inequitable disadvantage, then the injunction, if obtained, is gone, and, à fortiori, the notice of motion for an injunction is also gone, by the amendment, unless expressly stated to be without prejudice. But in the absence of these exceptional circumstances, the injunction is not vitiated even by the filing of a supplemental bill (D'Arcy v. Sumner, 2 Moll., 359). Furthermore, an injunction which is expressed to be "until answer or further order" is not ipso facto gone, when a sufficient answer is put in, but must be discharged by actual order (Ooddeen v. Oakley, 2 D.F. & J., 161), and the Court refuses in general to discharge it without first allowing the plaintiff a reasonable time to judge of the sufficiency of the answer. On the other hand, a demurrer to the whole bill, when allowed, puts an end to a subsisting injunction, and that whether the Court upon allowing the demurrer gives, or does not give, liberty to amend (Harding v. Dingey, 12 W.R., 817). But when the injunction is " until answer or further order," it is not ipso facto gone upon the allowance of a plea to the whole bill, but requires an express order to discharge it (Lenand v. Hamer, 4 M. & C., 134), and that, notwithstanding a plea, is in the nature of an answer.

Lastly, with reference to the acts which amount to a breach of injunction. The injunction operates from the moment the order is pronounced, and the defendent having notice of it, even in an informal or imperfect way, is liable to be committed for a breach of it, notwithstanding the order may not as yet yet have been formally drawn up (Vansandau v. Rose, 2 Jac. & W., 264). But the mere casual presence of a defendant's counsel in court at the time an interim injunction is continued, will not, in the absence and without notice to the solicitor of the party, justify his committal for contempt for a subsequent breach of the order (Carrow v. Ferrior, 37 L.J. Ch., 569). Again, an injunction, while it subsists, must be obeyed, however irregularly it may have been obtained, and the defendant wishing to disobey it must first obtain an order for its discharge, or otherwise he is liable to be punished for a contempt (Harding v. Dingey, 62 W.R., 685). Furthermore, a person may violate an injunction and so become liable to committal without taking a principal part in the

breach, if he be found to have abetted those who did (St. John's College v. Carter, 4 My. & Cr., 497), and the party so assisting in the breach may not, it seems, shelter himself under the lawful authority of his principal (Woodward v. Earl of Lincoln, 3 Lu., 626). But an injunction restraining a man, his servants, and agents, is not taken to affect the tenant, even though he has notice of it (Hodson v. Coppard, 9 W.R., 9), and it seems that the Court will not, upon the motion of the plaintiff at least, commit the defendant for a breach of the injunction, which the plaintiff had himself provoked the defendant to commit (Barfield v. Nicholson, 2 L.J. Ch., 90; 2 S. & S., 1). But in the absence of such exculpating circumstances, the Court will as a rule commit upon proof of even one particular act of violation, and will not discharge the guilty party until and unless he pay the other his costs of the committal; although upon the party making such payment it is a matter almost of course for the Court to grant a discharge in cases at least of inadvertent breach (Leonard v. Attwell, 17 Ves., 385), or subsequent expression of regret (Parkington v. Booth, 3 Mer., 149).

These are a few specimens of the manner in which Mr. Joyce has treated his subject. Our very condensed epitome of the sections above epitomised may serve to induce the profession to look into the book. The sections we have chosen are not exceptional, either in substance or in style; the work is, on the contrary, one of equal merits and usefulness throughout. The cost is 70s., but the volumes are cheap even at that figure. We think that in view of these substantial excellences, to find any infinitesimal fault with the comparison (which, by the way, Mr. Joyce has relegated to a note) between the Interdicta of the Roman and the injunctions of the English Law, as we were disposed at first to do, would be pedantic; and we refrain. In conclusion, therefore, we have to congratulate the profession and the author-the profession on this new acquisition to a digest of the law, and the author on his production of a work of permanent utility and—fame.

IV. THE GROWTH OF JEWISH LAW.

WHILST the historical study of jurisprudence is still in its infancy, there exists a large class of older juridical speculations, characterized by its utter disregard of all history, and conducted upon a method of investigation, which might