Page:Harvard Law Review Volume 12.djvu/118

98 98 HARVARD LAW REVIEW. under the fear of attachment, sequestration of property, or other punishment for disobedience. But no good reason exists for this roundabout, hesitating method of procedure. What the law de- clares to be just and proper to be done, the courts should require to be done in a positive and direct, as well as an effectual manner. This view of the matter has been forcibly presented by Sir George Jessel, Master of the Rolls, a very learned and eminent equity judge in a case requiring a mandatory injunction. " As to mandatory in- junctions," said that eminent jurist, " 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 continu- ing 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. 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 enjoy- ment of his property if he would give him a price for it. Where, therefore, money could not adequately reinstate the persons in- jured, 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." Finding the case under consideration a proper one for a mandatory injunction, he suited his action to his words and granted the order in accordance with the prayer, requiring the