Page:Harvard Law Review Volume 12.djvu/122

102 102 HARVARD LAW REVIEW. the stop-gate and repair the works ; the injunction should be so drawn that, although on its face restrictive only, it will, in order to comply with it, compel him to do these very things. This is not a precedent which ought to be followed in this or any other court. A tribunal that finds itself unable directly to decree a thing, ought never to attempt to accomplish it by indirection." These divergent views upon this subject serve to emphasize the difference in their mental attitude towards the essential aims of administrative or remedial justice, between a lawyer bred in the common-law courts, and accustomed to their technical and formal limitations, and one bred in the courts of equity, which do not ordinarily permit a mere technical rule, or a shortcoming of ordinary remedies or forms, to stand in the way of administering justice in its full sense and scope. In truth, the notion advanced by Judge Sharswood, that a preliminary mandatory injunction was an unheard-of procedure, was without any just foundation, as was pointed out by Vice-Chancellor Stuart, in Beadel v. Perry.^ " Refer- ence has been made," said that learned Vice-Chancellor, " to a sup- posed rule of court that mandatory injunctions cannot properly be made except at the hearing of the case. I never heard of such a rule. Lord Cottenham was, so far as I know, the first judge who pro- ceeded by way of mandatory injunction, and he took great care to see that the party applying was entitled to relief in that shape." The history of the development of the jurisdiction to grant man- datory injunctions is curious, as was observed by Sir George Jessel, in Smith v. Smith ; but it was a necessary jurisdiction, and was grad- ually enlarged so that it may now be fairly regarded as sufficiently comprehensive to embrace every case in which equity and justice, which go inseparably together, really require the writ. And we shall presently see that wherever the wrong complained of affects the legal or equitable rights of the plaintiff seriously and to such an extent as to be irreparable, or wherever the continuance by the defendant of the injury, the commencement of which has brought the plaintiff into court for relief, would lead to the waste or destruction of the property, before final hearing, a court of equity will interfere by mandatory injunction on an interlocutory appli- cation, in all cases where this special jurisdiction of the court is needed to restore the property to that condition in which it existed immediately preceding the cpmmencement of the wrong, or to bring 1 (1866) L. R. 3 Eq. 465.