So, where a Husband before his Marriage covenanted to release his Wife's Guardian of all accounts; this was held not to be binding, and was said to resemble a Marriage-Brokage Agreement (b).

In like manner, a voluntary Grant of an Annuity by a Ward, a year after he was of Age, to his Guardian, at the time when the Guardian pretended to come to an Account and deliver up the Estate to the Plaintiff, was set aside (c).

A Guardian has not been allowed to purchase an encumbrance on the Estate of his Ward (d).

v. Injunctions.

Injunctions are, in general, granted to prevent Fraud, or Injustice, and may therefore be classed under this head of Equity.

The Jurisdiction of the Court as to Injunctions, has been considered as a most useful one; without which, the benefit of an Equity against proceedings at Law could not be had; but as they may be employed to delay the obtaining justice at Law, it has been thought the duty of the Court to prevent, as much as possible, the abuse of that Jurisdiction (e).

All Injunctions are discretionary, and granted upon the circumstances of the Case (f). Of late years they have been allowed much more liberally than formerly (g).

2 Ves. 20. See what Lord
Bacon says of delays occa-
sioned by Injunctions. [4 vol.
Bacon's Works, 333, fol. edit.
(f) Potter against Chapman,
Ambl. 99.
(g) Hanson v. Gardener, 7

An Injunction, however, can only be obtained against a Party to the Suit (h); and in the ordinary case of an Injunction after a Decree, in the absence of a Creditor, no one appearing for him as Counsel, which might make a difference, it seems, he could not be proceeded against for a breach of the Injunction (i).

An Injunction is a prohibitory Writ, specially prayed for, by a Bill, in which the Plaintiff's Title. is set forth (k), restraining a Person from committing or doing an act, (other than criminal acts (1) which appears to be against Equity or Conscience (m). The Chancellor's order upon a Petition in Bankruptcy operates as effectually as a Writ of Injunction upon a Bill filed (n). It may be obtained at various stages of a Suit, according to the circumstances of the case.

If the Injunction be wanted to stay waste, or other Injuries of an equally urgent nature, upon the filing of the Bill, and an Affidavit, (the Affidavit even of a party convicted of perjury is, it seems, sufficient for this purpose (o), verifying the urgency and necessity of the Case, the Court will, on Motion made before the service of the Subpoena, and without Notice to the opposite Party (p), or if in the Vacation, or between

(h) Dawson v. Princeps, 2 Anstr. 521. Gadd v. Worrall, ib. 555.

(i) Iveson v. Harris, 7 Ves. 257, 8.

(k) Mitf. Pleading, p. 124. (1) See 6 Mod. 16. If, therefore, a Bill is brought for relief against a proceeding at Law upon a criminal prosecution, as an Indictment, or Information, or a Mandatory Writ, as a Writ of Prohibition, a Mandamus, or

any Writ which is mandatory and not remedial, the Defendant may demur. [Forr. 38. 2 Ves. 398.]

(m) Bacon's Abr. 648. (n) 1 Christian's Bank Law, p. 297. Saxton v. Davis, Rose 79.

(0) See Bowyer v. M. Evoy, 1 Ball & Beatty, 564, 5.

(p) An Injunction against waste will be granted, though the defendant appear the day

the Seals, on a Petition and Affidavit, and Certificate of the Bill filed (q), grant an Injunction immediately, to continue till the defendant has put in his answer, or the Court shall make some further Order concerning it. When the Answer comes in, the Defendant may move to dissolve the Injunction, and the Court will on such Motion order the Injunction to stand dissolved at a short day fixed by the Court, unless cause is shown to the contrary, and whether it shall then be dissolved or continued till the hearing of the cause is on such day determined by the Court, upon Arguments drawn from considering the Answer and Affidavit together; or if no cause is shown, then, upon Motion, and an Affidavit of the due service of the Order, the order for dissolving the Injunction will be, made absolute; but these are matters of Practice, and will be more fully considered, when we come to treat of the Practice of the Court.

An Injunction is, under circumstances, proper, and may be obtained, in the following cases :-1. To stay proceedings in other Courts, as in the Exchequer,.. the Spiritual Court, or Court of Admiralty, or to stay proceedings in a Court of Law; II. To restrain the Infringement of Patents; III. To stay waste; IV. To restrain the Sale of Books, Printed Music, or Prints; V. To restrain the Negotiation of Bills of Exchange, Notes, &c. or the Transfer of Stock ; VI. To prevent the committing of Nuisances. These are the principal cases in which Injunctions are granted; but there are others in which they are

before the motion, Aller v. Jones, 15 Ves. p. 605. Perhaps it might be different where he had appeared long

enough to have enabled the plaintiff to give notice. See ib.

(9) See what is said in Kimpton v. Eve, 2 Ves. & Bea. 351.

allowed, not classable under those heads, but which will, however, be considered: 1. As to an Injunction to stay Proceedings in other Courts. Where two Courts have a concurrent Jurisdiction of the same thing, that Court is entitled to retain the Suit in which it is commenced, and may enjoin any other Court from proceeding in the Suit. It has, however, been decided (r), that if a Bill is brought in the Exchequer to foreclose, the Defendant may file a Bill in the Court of Chancery to redeem, and that a Plea of the former Suit cannot be sustained. It may be true that such Plea is bad; but the Court of Exchequer, perhaps, might on application have given the Party relief by means of an Injunction.

So in those Cases in which the Court of Chancery and the Spiritual Courts have a concurrent Jurisdiction, the Court of Chancery will not (with some exceptions that will presently be mentioned,) hinder the Spiritual Court, being first possessed of the Suit, from proceeding in it (s).

If a Suit is instituted in the Spiritual Court for Tithes, and a Modus is set up as a defence, the Court of Chancery or of Exchequer, will grant an Injunction to stay proceedings in the Spiritual Court (t); or, a Prohibition may be obtained on application to a Court of Law (u). But if a Suit is there instituted for subtraction of Tithes, and the Defendant brings a Bill to establish a Modus, and on the bare suggestion of a Modus, moves for an

(r) Earl of Newburgh v. Wren, 1 Vern. 220.

(s Prec. Ch. 546.

(t) 1 Fowler, 311; see Bunb. 176.

(p) French v. Trask, 10 East 348.

Injunction to stay the proceedings in the Ecclesiastical Court, it will not be granted. If, indeed, the Modus pleaded, is admitted, the Ecclesiastical Court may then proceed upon the Modus: but if denied, that Court cannot proceed, propter triationis defectum (u); but where a Bill was brought in the Ecclesiastical Court to establish Moduses, some of which the Defendant admitted, and denied the rest and greatest part, the Court of Exchequer granted an Injunction (x). So, where there have been mutual accounts of different matters between the Parson and the Parishioner, Equity will restrain by Injunction the Parson from proceeding in the Ecclesiastical Court for an account of Tithes (y).

The Court of Chancery will, on a Bill filed, grant an Injunction to the Spiritual Court, to stay the Husband's proceedings in that Court to obtain a Legacy given to his Wife; because that Court cannot compel the Husband to make an adequate Provision or Settlement on his Wife, as the Court of Chancery will oblige him to do, before it will permit him to receive the Legacy (*).

Where a Suit is instituted in the Spiritual Court for an Infant's Legacy, by a Father, the Court will grant an Injunction, because it will not allow the Money of an Infant to come into the Father's hands. It does not grant the Injunction because the Spiritual

(u) Bunb. 176.

(1) Rotherham v. Fanshaw,

3 Atk. 627.

(y) Anon 23d October, 1745, MS.

(z) Tanfield v. Davenport,

Tot. 114; Nicholas v. Nicholas. Prec. Ch. 548; see also Meal v. Meal, 1 Dick. 373; Blount v. Bestland, 5 Ves. 517. Anon. 1 Atk. 491. Jewson v. Moulson, 2 Atk. 420.