before the court, that a court of equity will in all cases reject an application for an injunction where the wrong complained of has already been inflicted, for the continuing act must cause new damage so long as it is permitted.

SECTION XVIII.

Remedy provided in Charter does not supersede resort to Equity.

1. Special provisions of charter do not com- 2. Recent English statutes supersede such jumonly affect the jurisdiction of courts of risdiction chiefly, in suits at law. equity.

§ 222. 1. In most of the cases where the court interferes by injunction, in favor of land-owners and others, the party has a remedy under the provisions of the act. But this does not defeat the jurisdiction of the court, under the usual restrictions and limitations, which regulate the jurisdiction of courts of equity, in regard to legal rights.1

2. It is now understood by the profession, doubtless, that by the recent statutes in England it is competent to obtain an injunction at law, at the time of issuing the summons in the action; and at the final hearing such injunction may be made perpetual, or discharged, as justice shall require; and in case of disobedience, such writ of injunction may be enforced by the court, by attachment, or, when such court shall not be sitting, by a single judge at chambers. This injunction may also be applied for, at any stage of the proceedings, at law. These statutory provisions serve pretty effectually to supersede the necessity of any resort to courts of equity, in aid of legal rights and remedies, in the courts of common law in Westminster Hall.

• Deere v. Guest, 1 My. & Cr. 516; Durrell v. Pritchard, 11 Jur. N. S. 576. 1 Coats v. The Clarence Railw., 1 R. & M. 181.

*SECTION XIX.

Wilful Breaches of Injunctions.

1. Statement of case.

1 2. Opinion of the Vice-Chancellor.

1

§ 223. 1. In a late case before Vice-Chancellor Knight Bruce,1 an injunction had issued, restraining the defendants from further interfering with a particular road, and from so constructing their works as to obstruct, impede, or render less secure such road. The company then laid their permanent rails over the road, on a level, and by direction of the commissioners of railways erected gates across the road, for the security of passengers, and with the sanction of the commissioner opened the line for public traffic. The court, on application to punish the company for disobedience of the order, directed a sequestration to issue, and refused to suspend the order until an appeal could be heard under the particular circumstances. The language of the learned judge is worth repeating:

2. "Then comes the question, what, if anything, the court ought to do, because it does not necessarily follow that the process asked must issue. It is upon the defendants, however, to make a case to exempt them from it; and perhaps, if they had shown their proceedings not to be plainly and clearly illegal,- I mean illegal independently of any question of contempt, or had satisfied the court that the injunction ought not to have been granted at all, or ought to be dissolved, discharged, or put into a shape more favorable to them than it is; or had stated that they had appealed from it, or from the order granting it, or intended to do so, I might have declined or delayed allowing the process to go. But none of these things have they done. On the contrary, my belief is strengthened of the utter impropriety, without any reference to the injunction or this suit, of the acts alleged to be also a contempt of this court. My opinion is more fixed, that the injunction, instead of going too far, does not go

1 The Attorney-General v. The Great Northern Railw., 3 Eng. L. & Eq. 263; Attorney-General v. London & Southwestern Railw., 3 De G. & Smale, 439.

far enough, and that it is one of which the company cannot justly complain. Considering their conduct to be at once contemptuous and otherwise * illegal; to be wrongful as against the plaintiff individually, wrongful as against her Majesty's subjects at large, and, indeed, a bad — I had almost said a scandalous — example; whatever amount of inconvenience may result from acting against the company on this occasion, I think it right to deal with them according to their merits. The consequence may possibly be to stop the railway. I answer again that it ought to be stopped, for it passes where it does by wrong. The directors of the company, their agents and servants, cannot, on this motion, be committed to prison; but what can be done shall by me be done to repress this daring invasion of public and private rights, an invasion maintained moreover in open defiance of all law, authority, and order. Let a sequestration issue." 2

SECTION XX.

Questions of Costs in Equity.

1. Costs most commonly awarded to prevail- 2. If parties compromise merits, court will ing party. not decide question of costs.

§ 224. 1. Costs in courts of equity do not follow the result of the decision as in cases at law. It is requisite that the court. order costs to entitle the party to claim them. But it is now the settled practice. of the courts of equity to give the prevailing party costs,2 unless there are some very peculiar circumstances, whereby he is not entitled to claim costs, as that of a

2 But the court refused to grant an attachment against a railway company for disobedience to a writ of injunction, enjoining them to desist from giving an undue preference in respect to the carriage of coals, to persons carrying coals from Peterborough and other places to certain other places named in the rule, the affidavits on the part of the company showing a bonâ fide intention to conform to the order of the court, although it appeared that the reformed scale of charges still operated in some respects injuriously to the plaintiffs and advantageously to the other parties. Ransome v. Eastern, &c. Railw., 4 C. B. N. S. 135. 1 Travis v. Waters, 1 Johns. Ch. 85; s. c. 12 Johns. 500. 2 Perine v. Swaim, 2 Johns. Ch. 475.

mortgagee in possession who has not been offered the amount due upon the mortgage; and some others.

3

4

2. But courts of equity have always declined to determine a question of costs merely. If the parties have compromised the merits of the cause, or referred it to arbitrators, and reserved the question of costs for the court of equity, that court will ordinarily decline to try the whole case in order to determine a question of costs, but will leave each party to pay his own costs.4

SECTION XXI.

Suits on behalf of Others.

§ 224 a. A shareholder is not precluded from bringing a suit on behalf of himself and other shareholders, although he may be the only one desiring to sue. And if the party bringing the suit on behalf of himself and others have so conducted as to preclude his right to sue, he cannot maintain the suit, because there are others not affected in the same manner with himself.1

› Catlin v. Harned, 3 Johns. Ch. 61. And in a recent English case, Stocker v. Wedderburn, 30 Law Times, 72, Vice-Chancellor Wood, having given judgment against the plaintiff on demurrer, ordered that he should pay costs, notwithstanding the general equity of his claim, saying, "I am not bound to assume that all the allegations in the bill are true for the purpose of determining who shall pay costs; otherwise in every case defendants might be driven to defend a case up to the hearing, instead of demurring, in order to save costs.

* Lord Hardwicke, in 2 Vesey, sen. 222, 223, 284; Chancellor Kent, in Eastburn v. Downes, 2 Johns. Ch. 317. But some exceptions have been reluctantly admitted, under protest. Tower v. Eastern Counties Railw., 3 Railw. C. 374.

1 Burt v. British Life Insurance Asso., 5 Jur. N. S. 612.

SECTION XXII.

Receivers.Their Appointment and Duties.

1. It often becomes necessary to put railways 7. Subsequent mortgagee may have receiver. into the hands of receivers.

2. Appointed where necessary to reach income of estate.

3. Cases numerous where property of corporations placed in receivers' hands.

4. That is the legitimate mode of granting execution in equity.

5. The receiver not subject to the process of any other court.

6. This does not affect the priority of liens.

How extended.

§ 224 b. 1. In consequence of railway projects and railway enterprises after going into operation sometimes proving unproductive, and having either to be abandoned and wound up, or else to change ownership, in satisfaction of mortgages and other liens, it often becomes necessary to place the works in the hands of a receiver of the court, who will hold the money earned upon special deposit, subject to the final or interlocutory order of the

court.

2. The rule in courts of equity in regard to appointing a receiver of mortgaged property is, that it will be granted in all cases where the income of the estate is required to meet the encumbrance, and is at the present time being so applied as not to be legally applicable to reduce the encumbrance.

3. The cases are very numerous, both in the English and American books, where the property of corporations has been sequestered by virtue of an order in a court of chancery, and placed under the custody, control, and management of a court of chancery through the agency of a manager or receiver.1

4. And it was said by Lord Eldon,2 that it afforded no invin

1 Harvey v. East India Co., 2 Vernon, 396; Adley v. The Whitstable, 17 Vesey, 315, 323; Taylor v. Waters, 15 Vesey, 10; Chase's case, 1 Bland. Ch. 213; Williamson v. Wilson, Id. 421; King v. Odom, 3 Bland. Ch. 407.

* Adley v. The Whitstable Company, 17 Vesey, 315, 323.