NEW YORK CIVIL PRACTICE ACT, N. Y. Laws, 1920, c. 925, §8: "There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of these actions and suits, have been abolished."

§ 258: "The plaintiff may unite in the same complaint two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, ...

Procedure?

"1

CALIFORNIA CIVIL CODE, CAL. LAWS, 1850, c. 142, § 1: "There shall be in this State, hereafter, but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action."

KENTUCKY CODE OF PRACTICE, Ky. LAWS, 1851, c 616, Title 1, §1: "The forms of all actions and suits, heretofore existing, are abolished; and hereafter, there shall be but one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which shall be called a civil action."

§3. "The proceedings in a civil action may be of two kinds: 1. Ordinary; 2. Equitable."

§ 4. "The plaintiff may prosecute his action by equitable proceedings, in all cases where courts of chancery, before the adoption of this code, had jurisdiction; and must so proceed, in all cases where such jurisdiction was exclusive."

§ 5. "In all other cases, the plaintiff must prosecute his action by ordinary proceedings."

§ 6. "An error of the plaintiff as to the kind of proceedings adopted, shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings, and a transfer of the action to the proper docket."

CONNECTICUT PRACTICE ACT, Conn. Pub. Acts, 1879, p. 432, § 1: shall be hereafter but one form of civil action,

"There

§ 6. All courts, which are vested with jurisdiction both at law and in equity, may hereafter, to the full extent of their respective jurisdictions, administer legal and equitable rights, and apply legal and equitable remedies, in favor of either party, in one and the same suit, so that legal and equitable rights of the parties may be enforced and protected in one action: provided, that wherever there is any variance between the rules of equity and the rules of the common law, in the reference to the same. matter, the rules of equity shall prevail."

§ 7. "In every civil action, not brought before a justice of the peace, the plaintiff may include in his complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies;

MASSACHUSETTS LAWS, 1887, c. 383, §1. "All civil actions, whether at law or in equity, except replevin, in the supreme judicial and superior courts, may be commenced by a bill or petition with a writ of subpoena according to the usual course of proceedings in equity, . . ."

1 This section was formerly section 484 of the Code of Civil Procedure. The original language of the Code of Procedure, § 143, omitted the clause beginning "whether," and had some other slight differences.

§3. "The plaintiff or the defendant in such proceedings may ask for relief, either at law or in equity, or both, and the court may give such relief as the nature of the case may require, and may issue any writs, orders, injunctions or other processes necessary, at any stage of the proceedings." 1

66

UNITED STATES JUDICIAL CODE; § 274a, Act of March 3d, 1915, c. 90: That in case any of said courts shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amendments to the pleadings which may be necessary to conform them to the proper practice. Any party to the suit shall have the right, at any stage of the cause, to amend his pleadings so as to obviate the objection that his suit was not brought on the right side of the court. The cause shall proceed and be determined upon such amended pleadings. All testimony taken before such amendment, if preserved, shall stand as testimony in the cause with like effect as if the pleadings had been originally in the amended form." 2

SMITH v. SMITH.

Persisted an bldgremoved that interferred with light & air to his hous! lived in this haver.

H. Injury here is indisputable. By hard Calno act act of Eq. could substitute damages for mandatory ing but it fere will not dorso, for they do not think [Law Reports, 20 Equity, 500.] Pshould sell kisland to make it

CHANCERY, 1875.

THE object of this suit was to obtain a mandatory injunction forte down. the removal of a building which, as the plaintiff alleged, interfered fumonids! with the access of light and air to his house.3

SIR G. JESSEL, M. R. The present case has been argued on a single point. It was admitted that, looking to the circumstances of the case, the court would have granted a mandatory injunction before Lord Cairns' Act; but it was contended that, having regard to the provisions of that Act, no such injunction ought to be granted, but that an inquiry as to damages should be directed.

I will first consider the case independently of the Act. The house was in the occupation of the plaintiff, so that he was at once owner and occupier, a point considered of some importance in Curriers' Company v. Corbett, 2 Dr. & Sm. 355. The injury was indisputable. The height of the old wall was nine feet, that of the new wall, which was exactly opposite to some of the plaintiff's windows, was twentysix feet eight inches. According to the plaintiff's statement, the light was almost entirely obscured, the rooms could scarcely be used

1 See H. E. Bellew, "Equity Procedure and Practice in Massachusetts," 3 B. U. L. Rev. 63 (1923), 4 ib. 14; P. E. Aldrich, Mass. Equity Pieadings and Practice (2d ed., 1896), 15.

2 See A. L. Sanborn, "The Law and Equity Reform Bill," 25 Yale L. J. 221 (1916). A similar provision for the transfer of causes has been enacted in New Jersey, Laws, 1912, p. 417.

3 The statement of facts and a small portion of the judgment, discussing the plaintiff's delay or acquiescence, are omitted.

except by gaslight, in addition to which he and his family had been injured in health, and his wife and daughter obliged to leave the house; while the room above the kitchen, which he used as a workshop, where a good light was required, had been rendered useless for that purpose.

.

[His honor then referred to the progress of the buildings, and to the communications addressed to the defendant before the bill was filed, which was on the 19th of March, and considered that the plaintiff would, under the circumstances, have been entitled to a mandatory injunction before Lord Cairns' Act.]

As to mandatory injunctions, their history is a curious one, and may account for some of the expressions used by the judges in some of the cases cited. At one time it was supposed that the court would not issue mandatory injunctions at all. At a more recent period, in cases of nuisance, a mandatory injunction was granted under the form of restraining the defendant from continuing the nuisance. The court seems to have thought that there was some wonderful virtue in that form, and that extra caution was to be exercised in granting it. To that proposition I can by no means assent. Every injunction requires to be granted with care and caution, and I do not know what is meant by extraordinary. caution. Every judge ought to exercise care, and it is not more needed in one case than in another.

In looking at the reason of the thing, there is not any pretence for such a distinction as was supposed to exist between this and other forms of injunction. If a man is gradually fouling a stream with sewage, the court never has any hesitation in enjoining him. What difference could it make if instead of fouling it day by day he stopped it altogether? In granting a mandatory injunction, the court did not mean that the man injured could not be compensated by damages, but that the case was one in which it was difficult to assess damages, and in which, if it were not granted, the defendant would be allowed practically to deprive the plaintiff of the enjoyment of his property if he would give him a price for it. Where, therefore, money could not adequately reinstate the person injured, the court said, as in cases of specific performance, "We will put you in the same position as before the injury was done.' When once the principle was established, why should it make any difference that the wrong-doer had done the wrong, or practically done it before the bill was filed? It could make no difference where the plaintiff's right remained and had not been lost by delay or acquiescence.

Then what difference was introduced by Lord Cairns' Act? Before the Act it was a matter of right to obtain the injunction. By that Act the court had a discretion to substitute damages where it

1 Accord, Lawrence v. Horton, 59 L. J. Ch. N.s. 440 (1890). See Westbury, C., Isenberg v. East India, 3 D. G. J. & S. 263, 272 (1863). Cf. 201,

supra.

thought proper. Now this discretion must be a judicial discretion, exercised according to something like a settled rule, and in such a way as to prevent the defendant doing a wrongful act, and thinking that he could pay damages for it. Without laying down any absolute rule, in the first place it is of great importance to see if the defendant was doing wrong, and was taking his chance about being disturbed in doing it.

The next point for consideration is the materiality of the injury to the plaintiff, as stated by Bramwell, B., in Jessel v. Chaplin, 2 Jur. (N. S.) 931, but that alone was not sufficient; all the circumstances of the case must be taken into consideration, not only the injury to the plaintiff, but also the amount which has been laid out by the defendant.

In the present case the injury was most serious to the plaintiff, and he could not be compensated without the defendant buying the house, while as regards the defendant I am not satisfied that any considerable sum has been laid out upon his buildings. Again, the plaintiff was occupier of the house, so that it was a personal injury to him. Taking all the circumstances together, therefore, I think I have no right to say that the plaintiff is to give up the house and take pecuniary compensation for it, because it is more convenient to the defendant. I shall grant a mandatory injunction in accordance with the terms of the prayer, and following the order made in Jessel v. Chaplin, direct that it is not to operate for two months, and the defendant to pay the costs of the suit.1

1 Accord, in refusing to substitute damages for a mandatory injunction under this Act, Krehl v. Burrell, 7 Ch. D. 551 (1877); Greenwood v. Hornsey, 33 Ch. D. 471, 476 (1886). In Krehl v. Burrell, 554, Jessel, M. R., Isaid of Lord Cairns' Act: "It never could have been meant to invest the Court of Chancery with a new statutory power somewhat similar to that with which railway companies have been invested for the public benefit under the Land Clauses Acts, to compel people to sell their property without their consent at a valuation."

Damages were granted in lieu of a mandatory injunction in Isenberg v. East India, 3 D.G.J. & S. 263, 273 (1863); Senior v. Pawson, L.R. 3 Eq. 330, 334 (1866); London Brewery v. Tennant, L. R. 9 Ch. App. 212, 218 (1873), semble; Stanley v. Shrewsbury, L.R. 19 Eq. 616 (1875); Natl. v. Prudential, 6 Ch. D. 757 (1877); Arden v. Schweppes, 142 L. T. Jo. 379 (1917); see also Sharp v. Harrison, [1922] 1 Ch. 502, noted in 38 L. Q. R. 264, 153 L. T. Jo. 446. Damages as well as a mandatory injunction were refused in Curriers' Company v. Corbett, 4 D. G. J. & S. 764 (1865); Durell v. Pritchard, L. R. 1 Ch. App. 244 (1865); see Swaine v. Ry., supra, 180; 334n. Damages were granted for past injuries in the following cases, in which a prohibitory injunction was sought and denied: Wedmore v. Bristol, 11 W. R. 136 (1862), defendant with power of condemnation; M'Rae v. London etc. Ry., 37 L. J. Ch. N.s. 267 (1868), same and the plaintiff's lease expired during suit; Catton v. Wyld, 32 Beav. 266 (1863), during suit injury committed and repaired; Davenport v. Rylands, L.R. 1 Eq. 302 (1865), patent expired during suit; but cf. Price v. Bauwen, 4 K. & J. 727 (1858), before Lord Cairns' Act; and Betts v. Gallais, L.R. 10 Eq. 392 (1870), bill filed immediately before expiration of patent. Damages in lieu of specific performance under English statutes, W. D. Lewis, 41 Am. L. Reg. N.s. 398.

[Law Reports, [1894] 1 Chancery, 276.]

THE plaintiff in this action was the lessee of a house in Temple Street, Birmingham, under a lease of which' about twenty-nine years were unexpired. He did not occupy the house himself, but had sublet it to various persons. Part was an hotel held on a sublease which would expire in 1901. Part was let to an auctioneer and estate agent, on a lease which would expire in December, 1894. Other parts were let to other people from year to year. Some of the windows in the plaintiff's house were ancient lights. Temple Street is a street which runs north and south, and is from 35 to 37 ft. wide. Opposite to the plaintiff's house, which had a considerable frontage, was a large house having a frontage of 77 ft., and an elevation of 37 ft. or thereabouts, above the level of the street. This house was the property of the plaintiff's lessor, and was let to the defendant on a lease of ninety-nine years. The defendant had pulled down the house, and proposed to erect in its place a large building about 25 ft. higher than before, and when the writ was issued part of the front wall of the new building, having a frontage of 27 ft., had been erected to a height of 24 ft. higher than the old building; but no other part of the new building had been carried up higher than 37 ft. The plaintiff's house stood on rising ground and within a few yards of a large open space, which rendered the loss of light less important.

On the 10th of October, 1893, the plaintiff commenced the present action for an injunction to restrain the defendant from building higher than the old house, and to compel him to pull down so much as was already built above that height; the writ also claimed damages.

Mr. Justice Kekewich decided that this was not a case for an injunction, but for damages only.1

1893. Dec. 19. LINDLEY, L. J., delivered the judgment of the court (Lindley, A. L. Smith, and Davey, L. JJ.).

The plaintiff has appealed from this judgment on the ground that he is entitled to an injunction, and that the learned judge had no jurisdiction to award damages in lieu of an injunction in respect of that part of the house which was not yet higher than the old building which the defendant had pulled down. The plaintiff also complains that the learned judge had no sufficient materials for estimating the amount of damages, no evidence having been adduced by him on that point, he wanting an injunction and not damages.

1 The judgment of Kekewich, J., is omitted.