all the partners be assigned in liquidation of the private debt of one of the members, so as thereby to defeat the claims of firm creditors? The authorities on the question are divided, and in Burns on Fraudulent Conveyances it is broadly stated that such conveyauces are voluntary and void as to firm creditors, but it is doubtful from the cases cited whether the author is alluding to transfers made by one partner alone, without the assent of his copartner, or whether he embraces assignments participated in by the entire firm. If the former, the proposition is indisputable. If the latter, we think the sounder reasoning and the weight of authority are against him. We speak of cases like the present, where there is no pretense of actual fraud and where there is no showing that the firm was at the time insolvent, though according to some of the cases the insolvency of the firm would not affect the result. The firm creditors at large of a partnership have no lien on its assets any more than ordinary creditors have upon the property of an individual debtor. The power of disposition over their property inherent in every partnership is as unlimited as that of an individual, and this jus disponendi in the firm, all the members coöperating, can only be controlled by the same considerations that impose a limit upon the act of an individual owner, namely, that it shall not be used for fraudulent purposes. So long as the firm exists therefore its members must be at liberty to do as they choose with their own, and even in the act of dissolution they may impress upon its assets such character as they please. The doctrine that firm assets must be applied to the payment of firm debts, and individual property to individual debts, is only a principle of administration, adopted by the courts when from any cause they are called upon to wind up the firm business, and find that the members have made no valid disposition of or charges upon its assets. Thus when upon a dissolution of the firm by death or limitation or bankruptcy or from any other cause, the courts are called upon to wind up the concern, they adopt and enforce the principle stated; but the prin ciple itself springs only out of the obligation to do justice between the partners. * **This right of the creditors is therefore really the right of their debtors and inures to them derivatively from the debtors. Hence it is said that the lien or quasi lien of the creditors is worked out through the partuers;' the meaning of which is that the firm creditors may demand the primary application of the firm assets to the payment of their debts, because each one of the partners should have a right to demand this as against his copartners. * ** Conceding, as all the authorities do, that the firm creditors have no independent right to demand to be first paid, but derive that right solely by, through and under the right which the parties have to insist that this shall be done, it is impossible to see how the rule can be enforced where all the members of the firm have before the dissolution, and without ground to suspect fraud, given to the assets a different direction."

*

Principle lies at the foundation of this decision, and it is difficult to see how any other doctrine can be enunciated consistently with the principle that the equity of firm creditors is merely derivative. But the fallacy of the reasoning of the court in Case v. Beauregard, based upon the power of the parties to destroy the equity of firm creditors by the unanimous consent of all the partners, lay in the assumption of a fact which did not exist, namely, that May and Graham, as well as Beauregard, assented to the act of fusion. They did not assent to it. Their grantees or transferees did: but they had no authority to do so, so as to bind their assignors, as the transfers to them only passed the interest of May and Graham in the firm assets, which was given subject to firm debts, and did not confer

upon them any right to consent to a destruction of the partners' equity and the lien of firm creditors which May and Graham by their conveyances had reserved. What right then had the court to assert that all the partners had voluntarily waived their equity by an act of fusion to which all did not consent?

In McNutt v. Strayhorn, the court, following the dicta in the previous cases in that State, decided that transfers severally made by all the partners worked a destruction of the partners' equity and the firm creditors' lien.

These cases will enjoy an unenviable solitude, and they should, for more illogical decisions cannot well be imagined.

The decision of the court in Case v. Beauregard, 99 U. S. 119, was reaffirmed in Case v. Beauregard, 101 id. 688, and Fitzpatrick v. Flannagan, 106 id. 648. In this last case the court declared that the survivor of an insolvent firm, who is permitted to carry on the business by the personal representatives of the deceased member may dispose of the partnership property in payment of his individual debt. The language of the court is too remarkable to be omitted from this discussion. "And unless a partnership creditor or the personal representatives of the deceased partuer commence such a proceeding to liquidate the affairs of the partnership there is nothing to prevent the surviving partner from dealing with the partnership property as his own, and acting in good faith, to make valid dispositions of it. Locke v. Lewis, 124 Mass. 1. And if in like good faith, with the acquiescence of the personal representatives of the deceased partner, he uses the firm property to continue business on his own account, and in his own name he does it without other liability than to be held accountable to the estate of his deceased partner for a share of the profits; or as we have seen, upon a bill filed for that purpose by the personal representatives of the deceased partner, or partnership creditor; to wind up the firm business and apply its assets to the payment of its debts. Any intermediate disposition of the property made in good faith, even although it may have been specifically a part of the partnership assets, and even if it has been applied to the payment of his individual obligations, will be valid and effectual."

Suppose all the partners concur in transferring their interest in the firm to a stranger, will the lien of the firm creditors be extinguished? If it is simply a conveyance of their interest after deducting partnership liabilities, and the purchaser does not assume those debts, it must be held, if principle is observed, that the lien is preserved, although there are dicta leaning the other way, as we have already seen. The partners having subtracted the firm debts from the value of the firm property, have as between themselves and the purchaser paid such debts. It is therefore to their interest that they should not be called upon to pay them again. If the purchaser does not render himself personally liable for their payment, the partners must be presumed to have intended that the firm property shall remain bound for their satisfaction, for otherwise the partners might have to pay them after the firm property had been sold by the purchaser or seized to pay his individual debts, the purchaser not being liable for the firm debts. Nay, the partners would run the risk of being called upon to pay them the next day after the sale, if such sale discharged their lien and the lien of the firm creditors upon the firm property. In Menagh v. Whitwell, 52 N. Y. 161, Judge Rapallo expresses his opinion that such a sale would not destroy the lien of firm creditors. "How much more clearly apparent would be the injury to creditors by a sale to a person not liable for the debts if such sale had the effect to relieve the property from them." If on the other hand, the partners sell the firm property, and

not merely their interest in it, and firm debts are not deducted from the value, then it is clear that the lien of the partners is forever gone, for so far from having any interest in the firm property continuing as security for the firm debts, they have expressly discharged it from such lien by receiving its full value without deducting the debts, and transferred the lien from the property to its proceeds which they have received, and thus extinguished the lien of firm creditors. As between themselves and the purchaser, the duty rests upon them to satisfy the firm claims. The transaction is in effect the same as a sale of specific articles of merchancise by a firm. It is a mere truism to say that the title of the purchaser in such a case is unincumbered by any lien in favor of partnership creditors.

The lien of a partner upon partnership assets survives his death and vests in his personal representatives. It is held by all the authorities that to the extent that the partnership property remains in specie the lien of the old firm creditors is superior to the lien of the creditors of the surviving partner or partners who continue the business. Stocken v. Dawson, 9 Beav. 239; affirmed in 17 L. J. Ch. 282; Payn v. Hornby, 25 Beav. 280; Hoyt v. Sprague, 103 U. S. 613; S. C., 26 Law Ed. 585, 590; Nerot v. Burnard, 4 Russ. 247; Payn v. Hornby, 4 Jur. (N. S.) 446.

This is the rule, even though the representatives of the deceased partner consented to the continuance of the business without a settlement with the survivor, Hoyt v. Sprague; Nerot v. Burnard; Payn v. Hornby. But see the doctrine in Fitzpatrick v. Flannagan, supra, which is opposed to this doctrine. And where no such consent is shown, and the contract of partnership does not require a continuance, and no provision to that effect is contained in the deceased partner's will, the lien of the old firm creditors binds the new property brought into the business by the survivors as well as the old. West v. Skipp, 1 Ves. Sr. 239; Stocken v. Dawson, 9 Beav. 239; S. C., on appeal, 17 L. J. Ch. 282.

The authorities agree that where the representatives consent to the continuance of the business, the lien of the old firm creditors attached to only the old firm property. Hoyt v. Sprague; Payn v. Hornby; Lind. Partn., 700-702.

In Hoyt v. Sprague the court, in passing on this question, say: "They" (the representatives) "had the power, if they saw fit, unless restrained by their beneficiaries, to allow the estates of their deceased intestates to be continued in the business of the partnership; and if it was continued by their allowance and consent, the property became liable to the partnership debts subsequently incurred as well as to prior debts; but with this qualification, that the property which remained unchanged was still subject to the partnership lien in preference to after-incurred debts; whilst new property, which in the course of business took the place of the old, was not subject to said lien in preference to such debts."

In Payn v. Hornby, Sir John Romilly, master of the rolls, asserts that there is no lien on new firm property in favor of old firm creditors, even though the representatives of the deceased partner do not in any way sanction the continuance of the business. To prevent such a lien from attaching, they must prevent the carrying on of the business by the appointment of a receiver; otherwise the new firm creditors can claim priority of payment out of new firm property over old firm creditors. He says (4 Jur. [N. S.] 446): "But on the death of a partner the case is altogether different. There is, as Lord Eldon very accurately expressed it, a quasi lien; there is in point of fact only a right to the specific property. The executors of the deceased partner are joint tenants with the surviving partners, and accordingly they are entitled to require the sur

*

viving partners to do one of two things-either to wind up the partnership business at once, or to fix the value of the testator's property and secure payment of the amount. * * If the executors do not apply for a receiver, but simply file a bill for the winding up of the partnership, I apprehend that the new stock which has been acquired during the time that the business has been carried on by the surviving partner belongs in the first place to the creditors who had been created by such subsequent dealings, and not to the creditors of the old partnership, and that is the duty of the executors if they wish to prevent any dealings with the stock to come at once to this court for the appointment of a receiver; otherwise they in fact sanction the commission of a fraud by leading the subsequent creditors to believe that they are dealing with a person who is liable out of his stock in trade to discharge their debts."

While the decisions which have been already referred to, holding that the transfer by all the partners to an individual creditor is effectual to destroy the lien of the firm creditors are sound on principle, it does not necessarily follow that such transfer is good as against firm creditors. It may be fraudulent in law, although there is no fraud in fact. The partner whose individual debt is not thus paid or secured takes from his own property, to which the firm creditors have clearly a right to resort for payment, a portion thereof to pay a debt for which he is not liable. To that extent he gives away his property. But the law requires him to be just before he is generous. If therefore the property which he retains is not sufficient to pay all his debts, the transaction is necessarily fraudulent and void. The other partner and the firm being insolvent, or the firm being made insolvent by the transfer, it is clear that if the partner whose individual debt is not thus paid does not retain enough property, so that the firm creditors can collect the deficiency out of the same after exhausting the firm property, the firm creditors are defranded, for he has given away a portion of his property at the expense of his creditors. While it is true that the equitable lien of the partnership creditors is gone, they still have the right in common with all creditors to assail a transfer which operates as a fraud upon them. They cannot claim that a fraud has been committed by the destruction of their equity, but they clearly have the right to insist that one of their debtors shall not pay the debts of another at their expense.

In Schmidlapp v. Currie this obvious distinction is not mentioned; but it may be that the case did not call for any reference to it. While all the firm property was turned over to the individual creditor of one of the partners, and the firm, as a firm thus rendered insolvent, it may have been the case that one of the partners was abundantly able to pay all his individual debts and the firm debts besides. In such case the transactions would not necessarily be fraudulent, and the question of fraud would be a question of factThe partner whose property would have to pay all the firm debts, and not the firm creditors, would suffer from the transaction.

In Wilson v. Robertson, 21 N. Y. 587, the court based its decision on the distinction holding that the preference by the firm of the individual creditors of one of the partners was fraudulent in law, because as the other partner was not liable for such debts, the transaction constitutes a gift from him at the expense of his creditors. The court said: "Neither the firm nor the copartner Staples was in a condition to make a gift of the firm assets to Crocker or his creditors."

In New Hampshire the doctrine, that a transfer by one of two partners to the other operates to destroy the creditors' lien, is qualified. It is there held that the lien of firm creditors is extinguished on the inter

est of the selling partner, but that the lien on the sale of the purchasing partner is unaffected by the transaction. Spurr v. Russell, 23 Am. Law Reg. 276; S. C., 59 N H. 338. See also Tenny v. Johnson, 43 id. 144.

This decision has no foundation in principle, and is, as we have seen, opposed to the almost unbroken trend of the adjudications. In addition to the cases already cited on this subject, see Rice v. Barnard, 20 Vt. 479; Marks v. Hill, 15 Gratt. 400; Giddings v. Palmer, 107 Mass. 269; Conchman's Adm'r v. Maupin, 78 Ky. 33.

POUGHKEEPSIE, N. Y.

GUY C. H. CORLISS.

INSURANCE" VACANT AND UNOCCUPIED.”
NEW HAMPSHIRE SUPREME COURT,
JULY 29, 1886.

MOORE V. PHOENIX FIRE INSURANCE CO.

A house in which no one lives, but in which a former occupant had left some trifling articles of furniture, not of such character as to be valuable for use elsewhere, is "vacant and unoccupied " within the meaning of these terms as used in fire insurance policy.

ASSUMPSIT on a policy of insurance upon the

plaintiff's two-story frame dwelling-house, barn and shed attached.

The court instructed the jury that the word "vacant" in the policy means the same as empty, devoid of furniture, and that whether the buildings were vacant, in that sense, was the question for them to decide. Looking at the purposes and uses of the house, was it vacant in the above sense? To this instruction the defendants excepted. In response to a question submitted to them by the court the jury found specially that neither of the buildings named in the policy was vacant and unoccupied for more than ten days at any time between the date of the policy and the time of the fire. A general verdict was directed for the plaintiff, which the defendants moved to set aside.

J. L. Foster, Ray, Drew & Jordan and Rand & Morse, for plaintiff.

Carpenter. Bingham, Aldrich & Remick and Bingham, Mitchells & Batchellor, for defendants.

ALLEN, J. The defendants claim that the action cannot be maintained because it was not commenced in this court within twelve months from the date of loss, as stipulated in the policy. The action was commenced within twelve months of the loss in the Circuit Court of the United States. Subsequently after the lapse of more than twelve months, by agreement of the parties, the suit was transferred to this court. The entry of the action here was not of a new action then first commenced. It was the same action before begun in the Federal court. The agreement to enter the action here and prosecute the defense was a waiver by the defendants of the limitation in the policy. The limitation was not pleaded, and this defense could not be made except under a special plea. The buildings were occupied at the time the insurance was effected, August 15, 1876. From August 24, 1876, to December 11, of the same year, they were not occupied. They were consumed by fire December 30, 1876. The policy contained the condition that "if the premises shall be occupied or used so as to increase the risk, or become vacant and unoccupied for a period of more than ten days, or the risk be increased by any means whatever within the control of the assured, without the consent of the company * * *

then

and in every such case this policy shall be void." It seems to have been conceded at the trial that the plaintiff's buildings had been "unoccupied" within the meaning of that term as used in the policy, for a period of more than ten days. But a different meaning was given to the phrase "vacant and unoccupied," and under instructions of the court upon the defininition of the word "vacant," the jury found that the buildings were not "vacant and unoccupied" for a period of more than ten days between the date of the policy and the fire.

The meaning of the words "vacant and unoccupied" as used in the contract of insurance is that which the parties intended to give them; and that intention is to be found from the whole instrument, the subject-matter of the contract and the situation of the property insured. The object of the stipulation against vacancy and non-occupancy was to guard against the increased risk which arises from the absence of everybody, which duty or interest might afford some protection. In the same clause of the contract, "increase of risks" from the mode of occupation and use of the premises, and “increase of risk by any means whatever," are mentioned as express grouuds for avoiding the policy. "If the buildings shall be occupied or used so as to increase the risk, or become vacant and unoccupied for a period or more than ten days, or the risk be increased by any means whatever," is a statement in which the leading idea in the condition of forfeiture is increase of risk," and that idea must have been intended as a part of the definition of the words "vacant and unoccupied." It was the increase of risk from the loss of care and attention of persons otherwise present, which the parties intended to guard against by the stipulation of the forfeiture in case of vacancy and non-occupancy for more than ten days. That intended by the words vacant and unoccupied," as used in the policy and in the connection in which they were used, such a desertion of the premises and removal from them as would materially increase the risk. The case of Sleeper v. Ins. Co., 56 N. H. 401, sustains this construction of the words" vacant and unoccupied." In that case the stipulation for forfeiture in the policy was, "if the premises hereby insured become vacated by the removal of the owner or occupant, without immediate notice to the company and consent indorsed hereon * 串 *this policy shall be void." In the opinion by Smith, J., it is said: "It is apparent the insurers intended to guard against the increased risk which inevitably affects buildings, where no one is living, or carrying on any business. An unoccupied building invites shelter to wanderers and evil-disposed persons. No one interested is present to watch or care for the property, or seasonably to extinguish the flames in a case of fire; and for various reasons that might be enumerated an unoccupied building is more exposed to destruction, to say nothing of the inducement a dishonest owner would have to turn it, if unprofitable, into money, when insured, by becoming a party to its destruction by fire. If then the motive is to have some one present occupying and dwelling in the buildings, aud interested to preserve the roof that shelters his family or hold his household goods, that object would plainly be defeated by holding that he and his family may depart with all their possessions, save perhaps a few articles not needed for present use, and still the premises be considered occupied. * ** I cannot say that I have any doubt that these buildings were vacant at the time they were burned, in the sense in which that term was used in the policy." And Ladd, J., in his opinion in the same case says: "I think when the occupant of a dwelling-house moves out with his family, taking part of his furniture and all the wearing apparel of the family and makes the

1

place of his abode in another town, although he may have an intention of returning in eight or ten months, such dwelling-house, while thus deserted, must be regarded as unoccupied, that is, vacated, according to the natural and ordinary received import of those terms. It is the very situation against the hazards of which the defendants undertook to guard themselves by an express stipulation and condition inserted in the contract upon which the action is founded."

In Keith v. Ins. Co., 10 Allen, 228, the policy contained a provision that "if the building insured remains unoccupied more than thirty day without notice the policy will be void." The building was a trip-hammer shop and had not been used for business for more than thirty days, the machinery and tools remaining there, and the plaintiff's son going through the shop nearly every day to see if things were right. It was decided that these facts did not constitute occupancy, but that some practical use must have been made of the building; and if it remained thus, without any practical use, for the space of more than thirty days, it was within the meaning of the policy, unoccupied, and the policy became void. And in Ashworth v. Ins. Co., 112 Mass. 423, the condition in the policy was, “if the buildings insured shall be vacated and remain so more than thirty days without the consent of the company, the policy shall be void." The buildings were a dwelling-house and barn. The house was only used by the plaintiff for himself and servants to take their meals in when he was carrying on a contiguous farm, and the barn was used for storing hay and tools, but no cattle were kept there. A verdict for the defendant ordered upon these facts was sustained, the decision being that the premises were vacated within the meaning of that term as used in the policy, which thereby became void. In the opinion Colt, J., says: "Occupancy as applied to such buildings implies an actual use of the house, as a dwelling place, and such use of the barn as is ordinarily incident to a barn belonging to an occupied house, or at least something more than a use of it for a mere storage. The insurer has a right, by the terms of his policy, to the care and supervision which is involved in such an occupancy." Keith v. Ins. Co., supra, where “unoccupied " instead of "vacated" is used in the condition of forfeiture, is cited as an authority in support.

If the terms "vacated and unoccupied," as applied to buildings and as used in clauses of forfeiture of insurance, are intended to refer to the want of some practical use for which the insured buildings were designed, and the reason for this is the increased risk arising from the lack of care and vigilance incident to such a use, then the buildings must be said to be " cant and unoccupied" within the meaning of the contract of insurance when there is such a removal from them as to materially increase the risk from fire.

va

In all the cases referred to, the terms " vacancy and "non-occupancy" are used interchangeably and as equivalent in meaning. "When the policy specially provides, that in case the premises shall be left unoccupied' (Paine v. Agricultural Ins. Co., 5 N. Y. 619) or shall remain unoccupied " (Keith v. Ins. Co., supra) or "shall become vacaut (Cummins v. Ins. Co., 5 Hun, 554) or 'unoccupied' (Wustman v. Ins. Co., 15 Wis. 138) or shall be vacated' (Ashworth v. Ins. Co., supra) the insurance shall be forfeited, a practical occupancy consistent with the purposes or uses for which they were insured is intended, and an occupancy that measurably lessens the vigilance and care that would be incident to its use for such purposes is not an occupancy within the meaning of the term as thus employed." Wood Ins., § 89.

The question of vacancy and non-occupancy, and

the question of increase of risk from these and other changes of circumstances, are questions of fact for the jury. Gumwell v. Merchants' Ins. Co., 12 Cush. 167; Luce v. Ins. Co., 105 Mass. 297; Williams v. Ins. Co., 57 N. Y. 274; Cummings v. Ins. Co., 67 id. 260; Robinson v. Ins. Co., 27 id. 134; Wood Ins. 439, and cases cited. But when the undisputed facts as naturally interpreted show vacancy and non-occupancy and consequent increase of risk, or where there is no evidence to rebut, modify or explain the evidence of increased danger from the change, there is no question of fact to submit to the jury, and it becomes the duty of the court to declare the verdict. Sleeper v. Ins. Co., supra; Ashworth v. Ins. Co., supra; Dittmer & Pelle v. Ins. Co., 23 La. Ann. 458.

The defendants at the trial moved that the verdict be directed for them on the ground that there was no evidence to be submitted to the jury, that the insured premises were not "vacant and unoccupied." The motion was denied and the question of vacancy and non-occupancy was submitted to the jury under instructions making a distinction in meaning between these terms as used in the policy, and leaving the question of vacancy to be determined upon the evidence without reference to the question of increase of risk. Taking the meaning of the phrase "vacant and unoccupied," as used in the policy, to be such vacancy and non-occupancy as materially increased the risk, there was no evidence that the buildings insured were not "vacant and unoccupied" for a period of more than ten days, in that sense. The premises were not occupied for nearly three months between the date of the policy and the fire. Little or no furniture of sufficient value to remove was left in the house, which was remote from habitations, five miles in one direction and two in the other. There was no person in the vicinity whose duty or interest required him to have any care of it. The house was open; the windows, some broken, were entirely gone and it was exposed to the incursions of chance travellers, pleasure seekers, sportsmen and tramps. Nothing short of destruction, which subsequently came, could have added to the abandoned character of the premises under the desolation which set upon them. The facts all point to one conclusion. There is no circumstance showing or tending to show that the buildings were not "vacant and unoccupied," and there was no evidence showing or tending to show that the risk was not increased. There is no fact that lessens or modifies the force of the fact that shows increased danger. It does not alter the case that the plaintiff did not know of the vacancy and non-occupancy until the time of re-occupation. Reasonable care required that he should have known of the tenant's removal, and it was his duty to see that the terms of the contract were carried out. Sleeper v. Ins. Co., supra. The defendants did not consent to the non-occupancy. They were not informed of it until long after the fire, and even in the plaintiff's proof of loss, he failed to give this material information. The parties could not have intended such an abandonment of the premises as the case shows, and at the same time not have intended that they would be "vacant and unoccupied" in the sense in which those words were used in the forfeiture clause of the policy. There being no evidence competent to be submitted to the jury that the buildings were not for more than ten days after the insurance vacant and unoccupied," and vacancy and nouoccupancy being manifest from undisputed evidence, the motion of the defendants for a verdict should have been granted, and the exception to the refusal is sustained.

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Judgment for the defendants.

Carpenter and Bingham, JJ., did not sit; the others concurred.

INJUNCTION—AGAINST LIBEL OF BUSINESS.

UNITED STATES CIRCUIT COURT, E. D. PENNSYLVANIA, OCTOBER 9, 1886.

THIS

-

KIDD V. HORRY.

An injunction will not issue to restrain a libel on business. HIS was a motion for a preliminary injunction to restrain the defendants from publishing defamatory and libellous statements about the plaintiff's business, carried on in connection with two letterspatent of the United States. The plaintiff had filed a bill in equity to restrain the defendants from infringing these patents and for an account. The defendants' answer had not been filed. The bill upon which the injunction was asked for was filed as an ancillary bill in the suit already pending.

Anthony Q. Keasbey and Francis Rawle (with them Walter G. Smith), for plaintiff.

E. Clinton Rhodes (with him F. Carroll Brewster), for defendants.

BRADLEY, J. We are asked to grant an injunction in this case to restrain the defendants from publishing certain circular letters which are alleged to be libellous and injurious to the patent-rights and business of the complainants, and from making or uttering libellous or slanderous statements, written or oral, of or concerning the business of the complainants, or con cerning the validity of their letters-patent, or of their title thereto pending the trial and adjudication of the principal suit which is brought to restrain the infringement of said patents.

The application seems to be altogether a novel one, and is urged principally upon a line of recent English authorities, such as Dixon v. Holden, L. R., 7 Eq. 488; Thorley Cattle Food Co. v. Massam, 14 Chan. Div. 763; Thomas v. Williams, id. 864; and Herman Loog v. Bean, 26 id. 306. An examination of them, and other cases relied on, convinces us that they depend on certain peculiar acts of Parliament of Great Britain, and not on the general principles of equity jurisprudence.

By the Common-Law Procedure Act of 1854 (17 and 18 Vic., ch. 125, §§ 79, 81, 82), it was provided, that "in all cases of breach of contract, or other injury, where the party injured is entitled to maintain and has brought an action, he may claim a writ of injunction against the repetition or continuance of such breach of contract or other injury," etc.; and "in such action judgment may be given that the writ of injunction do or do not issue, as justice may require," and further (§ 82), the plaintiff may at any time after the commencement of his action apply ex parte for an injunction.

This statute gave the judges of the common-law courts the power to issue injunctions in the cases specified (i. e., breaches of contract or other injury), to prevent a repetition or continuance of the injury for which suit was brought.

By the Judicature Act of 1873 (36 & 37 Vict., ch. 66, § 17), it was enacted that the high court of justice should have and exercise "the jurisdiction, which at the commencement of this act was vested in, or papable of being exercised by all or any one or more of the judges in (the common law) courts respectively, sitting in court, or in chambers, or elsewhere, when acting as judges or a judge in pursuance of any statute law, or custom, and all powers given to any such court, or to any such judges or judge by any statute, and also all ministerial powers, duties and authori ties, incident to any and every part of the jurisdiction so transferred."

As the high court of justice, established by the Ju

dicature Act of 1873, was an amalgamation of all the courts of original jurisdiction of Westminster hall, including the court of chancery, which became merely one of the divisions of the high court, it followed that the court of chancery became invested with the jurisdiction which was given to the common-law courts by the Common-Law Procedure Act of 1854; and hence became vested with power to grant injunctions to prevent the continuance or repetition of an injury which was actionable in any court and for which an action was brought, although the power to grant injunctions in cases of libel was resisted in several instances by very high authority, as in the case of the Prudential Ins. Co. v. Knott, 10 Ch. App. 142, by Lord Chancellor Cairns and Lord Justice James; and in that of Butdon v. Beddon, 9 Ch. Div. 39, by Sir George Jessell. The practice of issuing such injunctions however finally prevailed.

This statute law of Great Britain is sufficient to account for the English cases relied on by the complainant, and is undoubtedly the basis on which they really stand.

In the case of Thorley's Cattle Food Co. v. Massam, 14 Ch. Div. 763, a leading case on the subject, Malins, V. C., says, referring to previous cases: "I think these cases at law establish this doctrine; that where one man publishes that which is injurious to another in his trade or business, that publication is actionable, and being actionable, will be stayed by injunction be cause it is a wrong which ought not to be repeated.' This is an evident reference to the Common-Law Procedure act; and other cases expressly refer to the act.

Thus in the case of Quartz Hill Consolidated Mining Co. v. Beall, 20 Ch. Div. 501 as late as 1882, Sir George Jessell says: "This is an appeal from a decision of Vice Chancellor Bacon granting an injunction upon interlocutory application to restrain the publication of libel. I have no doubt whatever that there is jurisdiction to grant such an injunction. It is plain that the jurisdiction conferred on the common-law courts by the Common-Law Procedure Act of 1854, extended to the granting of such an injunction. The 79th section is as large in terms as can well be, and the 32d section allows ex parte injunctions in every case where a final injunction could be granted under the 79th section. Of course uuder the rule of omne majus continet in se minus, if the court can grant an injunction ex parte, a fortiori it can grant it on notice. It is therefore clear to my mind that the common-law courts had this jurisdiction in all common-law actions. That jurisdiction is transferred to the high court, and that would suffice to decide this question of jurisdiction. But by the Judicature Act of 1873, (§ 25, subs. 8), a larger jurisdiction to grant injunctions than existed before is given in every case; and in my opinion that enactment extends the general jurisdiction given in common-law actions to all actions, whether in equity or at common law. The result therefore is that there is jurisdiction in a proper case upon interlocutory application to restrain the further publication of a libel."

But neither the statute law of this country nor any well-considered judgment of the courts has introduced this new branch of equity into our jurisprudence. There may be a case or two looking that way, but none that we deem of sufficient authority to justify us in assuming the jurisdiction. The authority of the Supreme Court of Massachusetts, in the cases of Boston Diatite Co. v. Florence, 114 Mass. 69; Whitehead v. Kitson, 119 id. 484, is flatly against it. So also are the New York cases of the New York Juvenile, etc., Society v. Roosevelt, 7 Daly, 188; Brandreth v. Lance, 8 Paige, 24; Munger v. Dick, 55 How. Pr. 132; also the Georgia case of Caswell v. Cent. R. Co., 50 Ga. 70: