Page:Harvard Law Review Volume 12.djvu/128

108 I08 HARVARD LAW REVIEW. for a complete system of remedial jurisprudence. There seems still to be some conflict over the question whether a mandatory injunction may or should be granted on an interlocutory appli- cation ; but the outcome of this conflict is inevitable, for the forces which are at work are irresistible, and will not rest until efficient and necessary remedies are established to meet every form of wrong, of which law and the courts can take cognizance. Among the early American cases in which the matter is dis- cussed is Murdock's Case.^ In that case the plaintiff had purchased certain lands under a decree in chancery, and had been put into possession thereof by a writ o{ habere facias possessionem ; but the defendant Murdock had erected, and persisted in continuing to erect, a fence so as to include part of the tract so purchased by plaintiff. It was stated in the bill that plaintiff had brought an action of trespass quare clausum fregit against defendant, which was still pending, and there was a prayer for an injunction prohib- iting defendant " from continuing the said fence, and enjoining him to remove the said fence already erected," and for further re- lief. The court refused to grant a temporary injunction requiring defendant to remove the fence already erected, but enjoined him from completing it until the further order of the court. It will be seen that there were no special circumstances in the case requiring an immediate removal of the fence, and so the ruling of Chancellor Bland was quite correct. But he put his denial of the writ upon the ground that before imputed wrong can be removed, or anything like commutative justice can be administered, it is the duty of the court to give the party complained of an opportunity of being heard ; that to order a defendant to pull down or remove any erec- tion would be obviously and directly to deprive him of a portion of that which then, at least, appeared to be his property, and was so claimed by him. And it was his view that injunctions should be granted only in so limited a form as expressly or in terms to require no alteration in the existing state of things, or anything to be un- done or restored, except in so far as a restoration may consequently follow as a necessary result of the merely restrictive operation of the injunction. But in this very case, pragmatic trespassers having continued the construction of the fence after the preliminary injunction had been awarded, it was ordered upon a motion to attach and punish 1 (1829) 2 Bland Ch. 461 ; s. c. with note on mandatory injunctions, 20 Am. Dec. 381.