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is entitled to maintain and has brought an action, he may in like case and manner as hereinbefore provided with respect to mandamus, claim a writ of injunction against the repetition or continuance of such breach of contractor other injury, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right; and he may also in the same action include a claim for damages or other redress."
By section 81–“ The proceedings in such action shall be the same, as nearly as may be, and subject to the like control, as the proceedings in an action to obtain a mandainus under the provisions hereinbefore contained; and in such action judgment may be given that the writ of injunction do or do not issue, as justice may require; and in case of disobedience such writ of injunction may be enforced by attachment by the Court, or when such Courts shall not be sitting, by a Judge.”
Section 82 enacted, that it should be lawful for the Plaintiff at any time after the commencement of the action, and whether before or after judgment, to apply ex parte to the Court or a Judge for the writ of injunction.
The object of these sections was, to facilitate the mode of proceeding in the Common Law Courts in those cases in which, prior to the C. L. P. Act, it was necessary in order to obtain complete relief, to have recourse to a Court of Equity : so that, where previously to the C. L. P. Act, a Court of Equity had jurisdiction to grant an Injunction a Court of Common Law was thereby empowered to do so. That those enactments were never intended to be used for the purpose of issuing writs of injunction to restrain the publication of libels is obvious, from the fact that no such were ever issued.
Now, if a jurisdiction such as that recently held to have been conferred by the C. L. P. Act, was so conferred,
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it is very remarkable that it was never once exercised during the twenty years
in which that Act was in full operation, by and before the actual framers of it* (viz.), Sir John Jervis,
C.J., Sir Alexander Cockburn (afterwards Chief Justice), Martin and Bramwell (afterwards Barons of the Court of Exchequer) and Willes (afterwards one of the Judges of the Court of Common Pleas), sitting day by day administering the law and procedure under that Act, and yet not a single case is to be found in the books, nor in the Records of any of the Courts, of the granting of an injunction (either interlocutory or otherwise) to restrain the publication of a libel. There are indeed reports of cases which go far to negative the idea of any such extension of jurisdiction beyond that then possessed by the Courts of Equity. Jervis, C.J., said in the case of Gittins v. Symes, 24 L.J. C.P. 48 (which was an ex parte application under those sections of the Act for an injunction in an action for infringement of a patent) :“On cause being shewn, we can give such directions as a Court of Equity would do." And Lord Campbell, C.J., said, in the case of Benson v. Paull, 2 Jur. N.S. 425, 25 L.J. Q.B. 274, “It could hardly have been the intention of the Legislature to give the Courts of Common Law a jurisdiction much more extensive than the Courts of Equity have ever exercised.” And again, in the same case, “it never could have been the intention to confer a power on the Courts of Common Law which they could not satisfactorily exercise.” So that it appears from these and other decisions, that the intention of the Legislature was, that as regards the operation of those sections of the C. L. P. Act, injunctions should only be granted where a
* i.e., The Commissioners appointed to inquire into the process, practice, etc., in the Superior Courts at Westminster.
Court of Equity had, previously, jurisdiction to grant such. Therefore, unless a jurisdiction to restrain the publication of libels was actually conferred by the C. L. P. Act, there was, of course, none such to “transfer” by the Judicature Act.
Such a jurisdiction was, however, as already observed, first asserted by the late Sir George Jessel, M.R., in the case Beddow v. Beddow (supra), then by the same learned Judge, sitting in the Court of Appeal with two Lords Justices, in the Quartz Hill Mining Case (supra), although no injunction was granted in that case. And in a subsequent case in the Court of Appeal (Liverpool Household Stores v. Smith, 37 Ch. D. 170), an application for an injunction to restrain the publication in a newspaper of future articles of a libellous tendency, reflecting on a company, was refused, on the ground of the difficulty of so framing an injunction as not to include non-libellous matter, and because, if granted and disobeyed, the question of libel or no libel would have to be tried on motion to commit (which would be clearly illegal), and because it would be very unadvisable to grant an injunction which would restrain the fair discussion, in the newspapers, of matters of public importance, such as the probable success or failure of a public company.
It could not, therefore, be either “just or convenient,” within the meaning of the Judicature Act, 1873, to issue an injunction to restrain such a publication.
The judgment in the Quartz Hill Mining Case was afterwards followed by the Court of Appeal, under the Presidency of the late Lord Coleridge, C.J., in the case Bonnard v. Perryman (1891) 2 Ch. 269, 60 L.J. 617, in which, although no injunction was granted, it was held that “the Court has jurisdiction to restrain by injunction, and even by interlocutory injunction, the publication of a libel," but that the jurisdiction was such “as to require
exceptional caution in its use," and, adopting the language of Lord Esher, M.R., in the case Coulson v. Coulson, 3 Times L.R. 846, “the jurisdiction is of a delicate nature, and should only be exercised in the clearest cases, where if the jury did not find the matter libellous the Court would set aside the verdict as unreasonable." And the Court held it to be wiser in the case before them," as it generally and in all but exceptional cases must be, to abstain from interference until the trial and determination of the plea of justification.”
It appears, therefore, upon perusal of the judgment of the Court in Bonnard v. Perryman, that the new jurisdiction there laid down is beset with difficulties-inter alia) that it is such as to require "exceptional caution in its use"_is of a “delicate nature,” and “to be exercised only in exceptional cases."
Is not a jurisdiction such as that inconvenient and unconstitutional ? Lord Coke says—"Nothing is lawful which is inconvenient." And, "the law, that is the perfection of reason, cannot suffer anything that is inconvenient." And will not this new jurisdiction, as laid down in the above case, be the means of introducing an undesirable and inconvenient degree of uncertainty into the practice and procedure of thie Courts ?
The cautious language used throughout the judgment in Bonnard v. Perryman, is in itself sufficient to throw doubt on the legality of injunctions in actions of libel ; added to which the impolicy of granting them is manifest.
A jurisdiction of so delicate a nature as to require exceptional caution in its exercise, must be hazardous and uncertain, or inconvenient and impolitic; and if it be either, it is unconstitutional, and therefore contrary to the fundamental principles of the English Law.
The law of England allows a party libelled, not only the choice of two remedies; one in a civil court, the other in
a criminal court; but he may proceed at the same time, both by action-at-law and by indictment: and although in practice the double remedy is seldom resorted to, any case in which, after action brought, the Defendant persisted in republishing the same or other libellous matter, every such publication being a fresh offence, the proper course, undoubtedly, would be (particularly in such a case as that which Sir George Jessel mentions as “an atrocious libel") to proceed for such second or further publication by indictment; i.e., first by application to a magistrate for a summons, or a warrant to apprehend the offender, who may be committed for trial; when if convicted he may be punished by fine (the amount entirely in the discretion of the Judge) and imprisoned, and may also be required to find sureties for his good behaviour : and such is the recognised practical and constitutional remedy and mode of procedure established by law, and adopted and used for centuries past.
In the case of trivial libels in a newspaper, a Court of Summary Jurisdiction is empowered by the Newspaper Libel and Registration Act, 1881, to convict and fine offenders for such publication, unless they desire to be tried by a jury.
There is, moreover, a further reason why an injunction in libel is an inappropriate and unconstitutional remedy : a Defendant tried and convicted of libel, whether on indictment or criminal information, is entitled to move in arrest of judgment (a right expressly reserved by section 4 of Fox's Libel Act) but of which he is deprived, by the Court issuing a writ of injunction, and thereby usurping the functions of a jury and deciding the case without such a trial. It has now, however, been authoritatively laid down by the Court of Appeal, that a Judge has power to grant injunctions, interlocutory and otherwise, to restrain the publication of libels; but the