1911 Encyclopædia Britannica/Injunction

INJUNCTION (from Lat. injungere, to fasten, or attach to, to lay a burden or charge on, to enjoin), a term-meaning generally a command, and in English law the name for a judicial process whereby a party is required to refrain from doing a particular thing according to the exigency of the writ. Formerly it was a remedy peculiar to the court of chancery, and was one of the instruments by which the jurisdiction of that court was established in cases over which the courts of common law were entitled to exercise control. The court of chancery did not presume to interfere with the action of the courts, but, by directing an injunction to the person whom it wished to restrain from following a particular remedy at common law, it effected the same purpose indirectly. Under the present constitution of the judicature, the injunction is now equally available in all the divisions of the high court of justice, and it can no longer be used to prevent an action in any of them from proceeding in the ordinary course.

Although an injunction is properly a restraining order, there are instances in which, under the form of a prohibition, a positive order to do something is virtually expressed. Thus in a case of nuisance an injunction was obtained to restrain the defendant from preventing water from flowing in such regular quantities as it had ordinarily done before the day on which the nuisance commenced. But generally, if the relief prayed for is to compel something to be done, it cannot be obtained by injunction, although it may be expressed in the form of a prohibition—as in the case in which it was sought to prevent a person from discontinuing to keep a house as an inn. The injunction was used to stay proceedings in other courts “wherever a party by fraud, accident, mistake or otherwise had obtained an advantage in proceeding in a court of ordinary jurisdiction, which must necessarily make that court an instrument of injustice.” As the injunction operates personally on the defendant, it may be used to prevent applications to foreign judicatures; but it is not used to prevent applications to parliament, or to the legislature of any foreign country, unless such applications be in breach of some agreement, and relate to matters of private interest. In so far as an injunction is used to prohibit acts, it may be founded either on an alleged contract or on a right independent of contract. The jurisdiction of the court to prevent breaches of contract has been described as supplemental to its power of compelling specific performance; i.e. if the court has power to compel a person to perform a contract, it will interfere to prevent him from doing anything in violation of it. But even when it is not within the power of the court to compel specific performance, it may interfere by injunction; thus, e.g. in the case of an agreement of a singer to perform at the plaintiff’s theatre and at no other, the court, although it could not compel her to sing, could by injunction prevent her from singing elsewhere in breach of her agreement.

An injunction may as a general rule be obtained to prevent acts which are violations of legal rights, except when the same may be adequately remedied by an action for damages at law. Thus the court will interfere by injunction to prevent waste, or the destruction by a limited owner, such as a tenant for life, of things forming part of the inheritance. Injunctions may also be obtained to prevent the continuance of nuisances, public or private, the infringement of patents, copyrights and trade marks. Trespass might also in certain cases be prevented by injunction. Under the Common Law Procedure Act of 1854, and by other statutes in special cases, a limited power of injunction was conferred on the courts of common law. But the Judicature Act, by which all the superior courts of common law and chancery were consolidated, enacts that an injunction may be granted by an interlocutory order of the court in all cases in which it shall appear to be just or convenient; … and, if an injunction is asked either before or at or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted whether the person against whom it is sought is or is not in possession under any claim of title or otherwise, or if not in possession does or does not claim to do the act sought to be restrained under colour of any title, and whether the estates claimed are legal or equitable.

An injunction obtained on interlocutory application during the progress of an action is superseded by the trial. It may be continued either provisionally or permanently. In the latter case the injunction is said to be perpetual. The distinction between “special” and “common” injunctions—the latter being obtained as of course—is now abolished in English law.

In the courts of the United States the writ of injunction remains purely an equitable remedy. It may be issued at the instance of the president to prevent any organized obstruction to inter-state commerce or to the passage of the mails (in re Debs, 158 United States Reports, 564). Temporary restraining orders may be issued, ex parte, pending an application for a temporary injunction. In the state courts temporary injunctions are often issued, ex parte, subject to the defendant’s right to move immediately for their dissolution. Generally, however, notice of an application for a temporary injunction is required.

For the analogous practice in Scots law see Interdict.