taking the substance of the inheritance, and granted the injunction.

A bill for an injunction is generally sustained in connection with an account. But in mining cases an account may be decreed, when the injunction is refused (b).

In a case where a bill was brought for an injunction to protect coal mines from injury by water flowing from another coal mine, the Court granted the motion, and restrained the defendants from working their mines in any places which might injure or endanger the plaintiff's mines until answer or further order. There was no direction for a trial at law. Evidence was afterwards entered into, and, on the hearing of the cause, the Court refused to make the injunction perpetual, until the plaintiff had established his right at law. The bill was retained for a year, with liberty to the plaintiff to bring an action, and the injunction was continued in the interval (c).

In cases of a pressing nature an injunction may be obtained on motion only, and before the answer of the defendant is put in. A contrary decision of Lord Hardwicke has been overruled (d). The bill must, in such cases, be actually filed, and be supported by proper affidavits of title, showing an actual or threatened interference.

But a distinction has always been observed with respect to the hasty disturbance of mines in active operation. Mining operations may, in general, be prevented without much permanent injury even to the rightful owner, when no expenditure has been incurred, and when no extensive preparations have been made. But the nature of mining requires that the works should be kept in a constant state of repair and activity, and an injunction for causing such operations to be at once suspended might produce a fatal injury, both with respect to the costs of re-commencing the suspended operations, and with respect to rival ownerHare, 340.

(b) Parrott v. Palmer, 3 Myl. & K. 632.

(c) Duke of Beaufort v. Morris, 6

(d) Lowther v. Stamper, 3 Atk. 496.

K K

ships, by which the most favourable opportunity for disposing of the produce might be lost. As a general rule, therefore, the Court will not interfere by injunction, on motion, and before the cause is fully heard, in cases where there has been either great expenditure or great delay (e). Delay alone, without much expenditure, will of itself sufficiently justify the Court in withholding the summary application of a remedy which is required to be sought for at once, and in the acquisition of which unusual facilities are afforded by the Court. The only ground for so strong a measure is, that a denial of it might be attended with irreparable mischief. If persons are not prompt in proclaiming this mischief, the circumstance may be considered either to refute the extent of the injury, or their title to redress (ƒ ).

In one case it was observed by Lord Eldon, that the grantees had actually worked the mines from 1808 till 1816, when the action of trespass was commenced-and that action was not brought to trial till 1817. If the defendants had filed a bill to stay the working of the mines, the Court must have refused an injunction to parties who had permitted these operations to proceed from 1808 till 1816, without interruption. To stop the working of a coal mine was a serious injury; and the expenditure incurred in the course of eight years would raise an equitable ground to prevent the hasty interference of the Court. The defendants would have been directed first to bring an action, and to return, when the result of the trial had enabled the Court better to deal with the application (g).

In another case, the time of delay amounted to two years --and the injunction was refused (h).

When a special injunction is granted, it is for the purpose

of immediately protecting the rights of those interested in the property. But whether issued in the first instance or not, it will be incumbent on the plaintiff, upon the hearing of the cause, to show just grounds for the relief being granted or continued. The Court may then proceed to the final decision of the question, or, as in cases of disputed title, may direct the plaintiff to establish his right in a court of law.

If there be any unnecessary delay in the plaintiff in such a case, in trying an action at law, this delay will in itself form just grounds for dissolving an injunction. Thus, in the case of Grey v. The Duke of Northumberland, it was observed by Lord Eldon, after noticing that the action at law had miscarried by means of an error in pleading, in making the defendant a tenant in fee, instead of a tenant for life, that the merits of the question had not been tried from the fault of the plaintiff, which presented a strong case for dissolving the injunction; unless some means of procuring a speedy trial could be insured, he should dissolve it (i).

It must always require a strong case on the part of the plaintiff to demand the interference of the Court by injunction in cases of trespass by the working of mines. The remedy cannot be administered on every occasion of injury. There must exist an urgent necessity for so strong a proceeding; if otherwise, the parties will be left to their remedies at law (k).

A motion was made before Lord Hardwicke, to restrain a lessee from working a coal pit irregularly and detrimentally to the lessor. The Chancellor refused the injunction, and observed, that the Court grants injunction to stay the working of a colliery with great reluctance, from the great inconvenience it occasions, and that it never will do it, but

(i) 17 Ves. 281.

G. 45; M'Curdy v. Noak, 17 L. J.,
N. S., C. C., 165.

(k) Elmhirst v. Spencer, 2 Mac. &

where there is a breach of an express covenant, or an uncontroverted mischief (1).

In another case, it was observed by Lord Eldon, that the act of stopping a colliery about to be wrought might possibly, with reference to rival ownerships, be the means of making it absolutely unproductive twelve months afterwards, when it was to be wrought. The injunction was refused after the delay of two years (m).

In another case, the same Judge observed, that inconceivable mischief might ensue from upholding the injunction too long, as the value of the opportunity of working a coal mine, if lost, might never be recovered, especially if it was contiguous to other mines belonging to the same person; and the interposition of the Court must be with a considerable pressure, that on the part of the plaintiff there should be no delay in going to trial (n).

It has been doubted, whether after a verdict at law in an action of trespass, in favour of the plaintiff in equity, the Court will afterwards grant an injunction against future trespasses, when the plaintiff refused to produce at the trial documents which are necessary for a fair decision (o).

Other instances of the remedy by injunction have been mentioned in the chapter relating to injuries.

When mines are in danger of being ruined before the establishment of any rights relating to them, the Court will entertain a bill of quia timet, for quieting the owners in the enjoyment of their rights, and will establish them by decree (p).

II. It has been seen, that mining is considered as a

(7) Clavering v. Clavering, 2 P. W. 388.

(m) Birmingham Canal Company v. Lloyd, 18 Ves. 515.

(n) Grey v. Duke of Northumberland, 17 Ves. 281.

(0) Field v. Beaumont, 1 Swanst.

210.

(p) Lord Falmouth v. Innys, Moseley, 87; Story, Eq. Jur. 860; Sayer v. Pierce, 1 Ves. 232.

species of trade.

A bill in equity, therefore, may be brought for an account of the profits (q).

The remedy of account has been grounded generally on the expediency of preventing multiplicity of suits. The satisfaction of damages alone is not within the province of the Court; but it presumes, when waste is committed, that it will be repeated (r).

The same rule, with respect to delay, applies to an account. If a claimant looks on for a long period, and witnesses great expenditure by other claimants, without objection, he will be entirely left to his remedy at law (s).

An owner of a coal mine made a lease of it to a trustee, in trust for five other persons, in equal shares. The lessee entered and worked the mine, which some time afterwards became unprofitable, and was abandoned. The lessee was insolvent; and the lessor brought a bill against him and the five partners for the rent, and insisted that as the cestuis que trust were to have the profits while the lease continued to be a beneficial one, it was reasonable they should also bear the loss occasioned by it. The Master of the Rolls was of opinion, that, as an action at law lay against the lessee only, the landlord was debarred of any remedy against any other person; and that as the landlord gave credit entirely to the lessee, and made choice of him as the person liable for the rent, the bill ought to be dismissed, as against the partners. But this decision was reversed by Lord Talbot, on appeal; and it was decreed that an account should be taken of the amount of rent and sums due to the lessor, which was to be paid to him by the lessee; and in case of his default, that an account should be taken

v.

(q) Bishop of Winchester Knight, 1 P. W. 406; Whitfield v. Bewit, 2 P. W. 240; Jesus College v. Bloome, 3 Atk. 262; Amb. 54; Parrott v. Palmer, 3 My. & K. 632; Story v. Lord Windsor, 2 Atk. 630; 1 Ch. Ca. 34; Clavering v. Westley, 3 P. W. 402; Pulteney v.

Warren, 6 Ves. 89; Norway v. Rowe, 19 Ves. 144; Rowe v. Wood, 2 Jac. & W. 559.

(r) 3 Atk. 262; Lee v. Alston, 1 Bro. C. C. 194; Bishop v. Church, 2 Ves. 104; Yates v. Hambley, 2 Atk. 362; Smith v. Cooke, 3 ibid. 381.

(s) Parrott v. Palmer, supra.