PREVENTION LEGALLY. that the plaintiff is entitled to succeed in an action of trespass, CHAP. VIII. and yet a Court of Equity will not interpose by injunction, the nature or degree of injury not being such as to require that extraordinary relief. (v) But the court, on dissolving the injunction, will impose terms on the defendant to remove the building, in case the verdict should establish that it is a nuisance. (v) Courts with reluctance grant injunctions to stay the working of collieries or mines, or restrain a man in the exercise of his trade, and will not usually grant it before answer. (w) A brewhouse is not considered to be necessarily a nuisance. (x) Where a private nuisance has been erected, a temporary acquiescence will not prevent the interference of the court, (y) and after a verdict at law finding the nuisance, and not before, a Court of Equity, will cause it to be removed. (2) Where an ordinary current of water running to a mill has been illegally stopped, a Court of Equity will immediately afford relief, though in some cases such a complaint has been referred to the commissioners of sewers. (a) 2. The Court of King's Bench will not, except in certain 2. Public peculiar cases, interfere by prohibition, mandamus, or other Nuisances. (b) wise, to restrain a public nuisance, but will refer the parties complaining to the ordinary remedy by indictment, though they certainly have jurisdiction; (c) and after conviction of a public continuing nuisance, the judgment is usually to pay a fine, and to prostrate or remove the nuisance, and a writ issues from the crown office to the sheriff to abate the same. (d) But the latter is not always essential or proper; thus where the building itself is unobjectionable, though some noxious trade has been carried on therein, there need be no judgment that the nuisance shall be abated; (e) and where only a part of an erection is complained of, judgment should be given to remove only that part which has been found injurious. (f) And in the case of steam engines, there is an express enactment to this (v) Per Master of the Rolls in Wynstanley v. Lee, 2 Swanst. R. 335, 336. (w) Anonymous, Ambl. 209; Jackson v. Barnard, Ridgw. 259. (x) Gorton v. Smart, 1 S. & S. 66, 68. (y) 2 Eq. Ab. 522. (2) Weller v. Smeaton, 1 Cox, 102; In re Sir Lister Holt, 2 Ves. S. 193; Swan v. Rogers, Carey, 26. (a) Swan v. Rogers, Carey, 26; but see 1 Bro. Ch. C. 588. (b) See in general Chit. Eq. Dig. tit. Nuisance. (c) Rex v. Justices of Dorset, 15 East, 594; Rex v. Commissioners of Dean, 2 Maule & S. 80; Rex v. Corporation of Plymouth, A. D. 1832, K. B. (d) Bro. Ab. Nuisance, 49; Rex v. Stead, 8 T. R. 142; 1 Chit. Crim. L. 716; 3 ld. 575, 607, b. (e) Puppineau's Case, 2 Stra. 686; 2 Sess. Ca. 34; Rex v. Justices of Yorkshire, 7 T. R. 467; Com. Dig. Indictment, N. (f) Rex v. Stead, 8 T. R. 142. CHAP. VIII. PREVENTION OF INJURIES LEGALLY. effect. (g). But on a prosecution in K. B. there can be no prostration until after judgment; there is, however, a summary remedy before what is termed an annoyance jury; and we have seen, what acts may be justified in removing a dangerous building. (h) But a court of equity will frequently interfere, as when a defendant had taken several old houses which were empty as temporary warehouses for stowing sugar, in which he was depositing such quantities of sugar that two of the houses had actually fallen, and others were in the most imminent danger, Lord Rosslyn granted an injunction upon petition and affidavit;(1) and it should seem that the court would interfere to restrain the carrying on a noxious trade destructive to the health and comfort of the neighbourhood. (k) But where the effect of an injunction would be to stop a great trading concern, the jurisdiction is exercised with caution, and not ex parte, but after notice, with the opportunity of opposing by affidavit. (7) In general, manufactories, such as soap and black ash manufactories, sugar houses, brewhouses, or brick-kilns, have not been considered such nuisances in proper neighbourhoods as will be stopped in the first instance by injunction, but should be first tried; though the obstruction of highways or harbours may be stayed by injunction before trial; (m) and an injunction to restrain the building an inoculating hospital was refused, that not being considered as a nuisance. (n) But a nuisance by an offensive and unwholesome process in any trade will, after a trial and verdict that it is a nuisance, be ordered by a Court of Equity to be removed. (0) Where there is a corning house to powder mills, from site, construction, &c., imminently dangerous to the neighbours and public, and likely to cause irreparable injury to property, though as a public nuisance it may be an object of prosecu tion by the attorney general, yet an injunction was granted, with directions for the speedy trial of an indictment, and preventing immediate danger in the mean time. (p) And where there is an obstruction to a public river as the Thames, an injunction may be obtained, and continued until after trial of an indictment respecting its erection; (q) though (g) 1 & 2 Geo. 4, c. 41, s. 2, 3; 3 Burn's J. Nuisance, 912, 913. (h) Ante, 654, 655, n. (e). (i) Mayor of London v. Bolt, 5 Ves. J. 199. (k) Eden on Injunctions, 226. Ves. 211, 220; see in general Eden, 226 to 231; and Gorton v. Smith, 1 S. & S 66 to 68. (n) Baines v. Baker, Ambl. 158. (0) Attorney-General v. Cleaver, 18 Ves. 211. (p) Crowder v. Tinkler, 19 Ves. 617. (9) 2 Wils. 87. in case of works by the commissioners of sewers, the court has refused to interfere on motion, stating it would be more proper to apply to the Court of King's Bench. (r) It is said to be usual, in case of public nuisance, to proceed by information at the suit of the attorney general, but that private individuals may apply to the court. (s) Where a Court of Equity has granted an injunction against the erection of a nuisance, the court will not on motion give leave to re-erect before the hearing of the cause, but will at most put the question of right in a speedy course of trial. (t) CHAP. VIII. PREVENTION oF INJURIES LEGALLY. tive Remedies cedent to the same. Having thus enumerated the principal instances of Preven Other Preven tive remedies by Injunction, to protect the person or personal connected with or real property in particular, there remain to be considered suits, but antesome preventive remedies in courts of justice, connected with suits, and of great practical importance. These are, principally, 1. Bills and writs of ne exeat, to prevent persons from leaving the kingdom to avoid payment of an equitable debt; 2. Bills to perpetuate testimony; 3. Bills to restrain or qualify actions in courts of law and other courts; and 4. Bills of interpleader. The first and second of these may be here properly considered as preventive remedies before any other suit. But bills to restrain actions at law or in other courts, bills of interpleader and motions of that nature, being respectively proceedings to be instituted after the commencement of action or suit, will be more properly arranged and considered in the chapter which treats of the proceedings to be taken by a Defendant, immediately after an action or suit has been commenced. prevent equitable debtors the kingdom.(u) from quitting When there is a legal debt of £20 or upwards, and the Bills and writs creditor apprehends that his debtor will not be forthcoming at of Ne Exeat to the end of the suit, he may, upon making an affidavit, cause him to be arrested and to remain in prison until he give security, with two bail, for the payment of the debt, or his rendering himself to prison upon the judgment when obtained, and in some cases of torts, although no certain debt can be sworn to, a judge will, upon special affidavit, showing that the wrongdoer is about to quit the kingdom, make an order to hold to bail for a sum fixed in the order. (r) But there are many (r) Eden, 230. (s) Id. ibid. 230, 231. (t) In re Sir Lister Holt, 2 Ves. S. 193. (u) See the history of the writ of ne exeat in part discussed in Flack v. Holme; 1 Jac. & W. 413 to 415. (x) Tidd's Prac. 172, 9 ed. PREVENTION OF INJURIES LEGALLY. CHAP. VIII. equitable and ecclesiastical claims, in respect of which either no proceedings can be had at law, or at least no arrest.(r) The Court of Chancery or the Master of the Rolls (y) therefore, will in these cases issue a writ of ne exeat regno, which requires the party to find sureties in the nature of equitable bail, that he will not quit the kingdom, (≈) or go into Scotland or Ireland; (a) and this is extended also to common law debts, when they constitute matters of account. (b) This writ was originally issued to prevent attempts against the safety of the state, and to hinder persons from going abroad and communicating important intelligence to an enemy; but the Court of Chancery has gone on from more to more until at length it has assumed and established its present extensive jurisdiction under this act. (c) A Wife may obtain a ne exeat regno for an arrear of alimony and costs, in aid of a decree or sentence of an ecclesiastical or spiritual court, (d) and perhaps before decree, pending proceedings, (e) but not pending an appeal from the decree.(ƒ) But the ne exeat cannot be obtained upon affidavit of the wife, as her evidence against her husband is only admissible in cases of breach of peace. (g) If a Child were grown up and about to leave the kingdom, even to Scotland, the chancellor may, by ne exeat regno, prevent him, and if gone, might, by great or privy seal, call on him to return, and if not obeyed, take his property. (h) So against husband and wife, executrix or administratrix,(i) but not by feme alone; (j) so it lies for a legatee against an executor,(k) and a surety may obtain this writ against his principal, although he is merely liable, and has not yet paid any thing in respect of his liability. (1) The demand for which a ne exeat may be issued must in general be equitable, and not legal, excepting in the case of an account. (m) It must be completely due, and must be such a debt that the sum to be marked on the writ may be ascertain Swift v. Swift, 1 Ball & Beatty, 327. (a) 2 Mad. Ch. Pr. 230. (c) Ante, 731, note (c). (d) Shaftoe v. Shaftoe, 7 Ves, 171, 173; Cases Chit. Eq. Dig. 522. Coglar v. Coglar, 1 Ves. J. 94. (f) Boehm v. Wood, 1 Turn. & Rus. 322. (g) Sedgwick v. Watkins, sed quære, 1 Ves. J. 49; 3 Bro C. C. 11; De Manneville v. De Manneville, 10 Ves. 56, S.C. (h) De Manneville v. De Manneville, 10 Ves. 63; Chit. Eq. Dig. 528. (i) Moore v. Hudson, 6 Mad. 218. PREVENTION ed. (n) But where the party was a factor or agent to account, CHAP. VIIL and he usually reside abroad, this writ may issue, though he might have been held to bail at law for the balance of the account, (0) but not against a captain just before sailing, and after long delay. (p) It may be obtained by an Englishman against a foreigner who happens to be in this country, to enforce the adjustment of an account upon a foreign transaction, although, according to the law of that country, the foreigner could not there have been held to bail. (q) The affidavit of a threat or intention to go abroad must be positive, not upon information and belief; (r) but the court acts on evidence of intention to go, without regard to denial; (s) and no notice of motion for the writ need be given, for that might defeat its object; (t) but a bill must be first filed. (u) The form of the writ of ne exeat regno is given in the notes. (x) 2. Bills to Perpetuate Testimony are also in the nature of a 2. Bills to perpreventive remedy to prevent loss of evidence in case of any petuate testimony. (y) vested interest, but which cannot be immediately litigated, because it is in remainder or reversion pending an estate for life, or years, or where the evidence will be important to resist a claim which may afterwerds be litigated; (y) but it has been (n) Boehm v. Wood, 1 T. & R. 343; Whitehouse v. Partridge, 3 Swanst. 377. (0) Flack v. Holme, 1 Jac. & W. 405; Stewart v. Graham, 19 Ves. 313; Howden v. Rogers, 1 Ves. & B. 129; Jones v. Sampson, 8 Ves. 593. (p) Dick v. Swinton, 1 Ves. & B. 371. (4) Flack v. Holme, 1 Jac. & W. 405; (x) William the Fourth, by the grace of God, of Great Britain, France and Ireland, Writ of ne exeat king, defender of the faith, &c. To our Sheriff of Middlesex, greeting. Whereas regno.* it is represented to us, in our Chancery, on the part of A. B. complainant against C. D. defendant, (amongst other things) that he the said defendant is greatly indebted to the said complainant, and designs quickly to go into parts beyond the sea, (as by oath made in that behalf appears) which tends to the great prejudice and damage of the said complainant. Therefore, in order to prevent this injustice, we do hereby command you, that you do, without delay, cause the said C. D. personally to come before you, and give sufficient bail or security in the sum of £ that the said C. D. will not go, or attempt to go, into parts beyond the seas, without leave of our said court. And in case the said C. D. shall refuse to give such bail or security, then you are to commit him the said C. D. to our next prison, there to be kept in safe custody untill he shall do it of his own accord. And when you shall have taken such security, you are forthwith to make and return a certificate thereof to us in our said Court of Chancery, distinctly and plainly, under your seal, together with this writ. Witness ourself at Westminster, the day of in the year of our reign. (y) See in general Chit. Eq. Dig. Perpetuating Testimony, 590, 772, 782; 1 Mad. Ch. Pr. 185 to 196; 2 Mad. Ch. P. 250, 546, 547; and see 1 W. 4, c. 22; * Beames on ne exeat regno, 19. |