英文法律词典 I-42

INIQUITY¹. Vice²; contrary to equity³; injustice⁴.

2. Where, in a doubtful matter, the judge is required to pronounce, it is his duty to decide in such a manner as is the least against equity.

INITIAL. Placed at the beginning. The initials of a man's name are the first letters of his Dame⁶; as, G. W. for George Washington. When in a will the legatee is described by the initials of his name only, parol evidence may be given to prove his identity. 3 Ves. 148. And a signature made simply with initials is binding⁷. 1 Denio, R. 471. But see Ersk. Inst. B. 3, t. 2, n. 8.

INITIALIA TESTIMONII, Scotch⁸ law. Before a witness can be examined in chief, he may be examined with regard to his disposition⁹, whether he bear good or ill will towards either of the parties whether he has been prompted what to say whether he has received a bribe¹¹, and the like. This previous examination, which somewhat resembles our voir dire¹², is called initialia testimonii.

INITIATE¹³. A right which is incomplete. By the birth of a child, the hushand becomes tenant¹⁴ by the curtesy initiate, but his estate is not consummate¹⁶ until the death of the wife. 2 Bouv. Inst. n. 1725.

INITIATIVE, French law. The name given to the important prerogative¹⁷ given by the charte constitutionelle, art. 16, to the late king to propose through his ministers projects of laws. 1 Toull. n. 39. See Veto.

INJUNCTION, remedies, chancery, practice. An injunction is a prohibitory writ¹⁸, specially¹⁹ prayed for by a bill, in which the plaintiff's title is set forth²⁰, restraining a person from committing or doing an act (other than criminal acts) which appear to be against equity and conscience. Mitf. Pl. 124; 1 Madd. Ch. Pr. 126.

2. Injunctions are of two kinds, the one called the writ remedial, and the other the judicial²¹ writ.

3. - 1st. The former kind of injunction, or remedial writ, is in the nature of a prohibition²², directed to, and controlling, not the inferior court, but the party. It is granted, when a party is doing or is about to do an act against equity or good conscience, or litigious or vexatious; in these cases, the court will not leave the party to feel the mischief²³ or inconvenience of the wrong, and look to the courts of common law for redress²⁴, but will interpose its authority to restrain such unjustifiable proceedings²⁵.

4. Remedial injunctions are of two kinds common or special. 1. It is common when it prays to stay proceedings at law, and will be granted, of course; as, upon an attachment²⁶ for want of an appearance, or of an answer; or upon a dedimus obtained by the defendant²⁷ to take his answer in the country; or upon his praying for time to answer, &c. Newl. Pr. 92; 13 Ves, 323. 2. A special injunction is obtained only on motion or petition, with notice to the other party, and is applied²⁸ for, sometimes on affidavit²⁹ before answer, but more frequently upon the merits disclosed in the defendant's answer. Injunctions before answer are granted in cases of waste and other injuries of so urgent a nature, that mischief would ensue if the plaintiff were to wait until the answer were put in; but the court will not grant an injunction during the pen-dency of a plea or demurrer to the bill, for until that be argued, it does not appear whether or not the court has jurisdiction³⁰ of the cause. The injunction granted in this stage of the suit, is to continue till answer or further order; the injunction obtained upon the merits confessed in the answer, continues generally till the hearing of the cause.

5. An injunction is generally granted for the purpose of preventing a wrong, or preserving property in dispute pending³¹ a suit. Its effect, in general, is only in personam, that is, to attach and punish the party if disobedient in violating the injunction. Ed. Inj. 363; Harr. Ch. Pr. 552.

6. The principal injuries which may be prevented by injunction, relate to the person, to personal property, or to real property. These will be separately considered.

7. - 1. With respect to the person, the chancellor³² may prevent a breach³³ of the peace, by requiring sureties of the peace. A court of chancery has also summary and extensive jurisdiction for the protection of the relative rights of persons, as between hushand and wife, parent and child, and guardian³⁴ and ward¹⁰; and in these cases, on a proper state of facts, an injunction will be granted. For example, an injunction may be obtained by a parent to prevent the marriage of his infant son. 1 Madd. Ch. Pr. 348; Ed. Inj. 297; 14 Ves. 206; 19 Ves. 282; 1 Chitt. Pr. 702.

8. - 2. Injunctions respecting personal property, are usually granted, 1st. To restrain a partner or agent from making or negotiating bills, notes or contracts, or doing other acts injurious to the partner or principal. 3 Ves. jr. 74; 3 Bro. C. C. 15; 2 Campb. 619; 1 Price, R. 503; 1 Mont. on Part. 93; 1 Madd. Ch. Pr. 160; Chit. Bills, 58, 61; 1 Hov. Supp. to Ves. jr. *335; Woodd. Lect. 416.

9. - 2d. To restrain the negotiation³⁵ of bills or notes obtained by fraud, or without consideration. 8 Price, R. 631; Chit. Bills, 31 to 41; Ed. Inj. 210; Blake's Ch. Pr. 838; 2 Anst. 519; 3 Anst. 851; 2 Ves. jr. 493; 1 Fonb. Eq. 43; 1 Madd. Ch. Pr. 154. 3d. To deliver up void or satisfied deeds. 1 V. & B. 244; 11 Ves. 535; 17 Ves. 111. 4th. To enter into and deliver a proper security. 1 Anst, 49. 5th. To prevent breaches³⁶ of covenant³⁷ or contract, and enjoin³⁸ the performance of others. Ed. Inj. 308. 6th. To prevent a breach of confidence or good faith, or to prevent other loss as, for example, to restrain the disclosure of secrets, which came to the defendant's knowledge in the course of any confidential³⁹ employment. 1 Sim. R. 483 and see 1 Jac. & W. 394. An injunction will be granted to prevent the publication of private letters without the authors consent. Curt¹⁵. on Copyr. 90; 2 Atk. 342; Ambl. 137; 2 Swanst. 402, 427; 1 Ball & Beat. 207; 2 Ves. & B. 19; 1 Mart. Lo. R. 297; Bac. Ab. Injunction A. But the publication will be allowed when necessary to the defence of the character of the party who received them. 2 Ves. & B. 19. 7th. To prevent improper⁴⁰ sales, payments, or conveyances⁴¹. Chit. Eq. Dig. tit. Practice, xlvii. 8th. To prevent loss or inconvenience; this can be obtained on filing a bill quia timet. (q. v.) 1 Madd. Ch. Pr. 218 to 225. 9th. To prevent waste of property by an executor or administrator⁴². Ed. Inj. 300; 1 Madd. Ch. Pr.; 160, 224. 10th. To restrain the infringement⁴³ of patents; Ed. Inj. ch. 12; 14 Ves. 130; 1 Madd. Ch. Pr. 137; or of copyrights; Ed. Inj. c. 13; 8 Ares. 225; 17 Ves. 424. 11th. To stay proceedings in a court of law. These proceedings will be stayed when justice cannot be done in consequence of accident; 1 John. Cas. 417: 4 John. Ch. R. 287,194; Latch⁴⁴, 24, 146, 148; 1 Vern. 180, 247; 1 Ch. C. 77, 120; 1 Eq. Cas. Ab. 92; or mistake; 1 John. Ch. R. 119, 607; 2 John. Ch. R. 585; 4 John. Ch. R. 85; Id. 144; 2 Munf. 187; 1 Day's Cas. Err⁴⁵. 139; 3 Ch. R. 55; Finch⁴⁶., 413; 2 Freem. 16; Fitzg. 18; or fraud. 1 John. Ch. R. 402; 2 John. Ch. R. 512; 4 John. Ch. R. 65. But no injunction will be granted to stay proceedings in a criminal case. 2 John. Ch. R. 387; 6 Mod. 12; 2 Ves. 396.

9. - 3. Injunctions respecting real property, may be obtained, 1st. To prevent wasteful⁴⁷ trespasses⁴⁸ or irreparable damages, although the owner may be entitled to retake possession, if he can do so, without a breach of the peace. 1 Chit. Pr. 722. 2d. To compel the performance of lawful⁴⁹ works in the least, injurious manner. 1 Turn. & Myl. 181. 3d. To prevent waste. 3 Tho. Co. Litt. 241, M; 1 Madd. Ch. Pr. 138; Ed. Inj. ch. 8, 9, and 10; 1 John. Ch. R. 11; 2 Atk. 183. 4th. To prevent the creation of a nuisance, either private or public. 1. Private nuisance; for example, to restrain the owner of a house from making any erections or improvements, so as materially to darken or obstruct⁵⁰ the ancient lights and windows of an adjoining house. 2 Russ. R. 121. 2. Public nuisances. Though usual to prosecute⁵¹ the parties who create nuisances, by indictment⁵², yet, in some cases, an injunction may be had to prevent the creating of such nuisance. 5 Ves. 129; 1 Mad. Ch. 156; Ed. Inj. ch. 11. 10. - 2d An injunction of the second kind, called the judicial writ, issues subsequently to a decree. It is a direction to yield up, to quit, or to continue possession of lands, and is properly described as being in the nature of an execution. Ed. Inj. 2. 11. Injunctions are also divided into temporary and perpetual. 1. A temporary injunction is one which is granted until some stage of the suit shall be reached; as, until the defendant shall file his answer; until the bearing; and the like. 2. A perpetual injunction is one which is issued when, in the opinion of the court, at the hearing the plaintiff has established a case, which entitles him to an injunction; or when a bill, praying for an injunction, is taken pro⁵ confesso; in such cases a perpetual injunction will be decreed. Ed. Inj. 253.

12. The interdict⁵³ (q. v.) of the Roman law resembles, in many respects, our injunction. It was used in three distinct, but cognate⁵⁴ senses. 1. It was applied to signify the edicts made by the proctor, declaratory of his intention to give a remedy in certain cases, chiefly to preserve or to restore possession; this interdict was called edictal; edictale, quod praetoriis edictis proponitur, ut sciant omnes ea forma posse implorari. 2. It was used to signify his order or decree, applying the remedy in the given case before him, and then was called decretal; decretale, quod praetor re nata implorantibus decrevit. It is this which bears a strong resemblance to the injunction of a court of equity. 3. It was used, in the last place, to signify the very remedy sought in the suit commenced under the proctor's edict; and thus it became the denomination⁵⁵ of the action itself. Livingston on the Batture case, 5, Am. Law Jour. 271; 2 Story, Eq. Jur. 865; Analyse des Pandectes de Pothier, h.t.; Dict. du Dig. h.t.; Clef des Lois Rom. h. t.; Heineccii, Elem. Pand. Ps. 6, 285, 28 Vide, generally, Eden on Injunctions; 1 Madd. Ch. Pr. 125 to 165; Blake's Ch. Pr. 330 to 344; 1 Chit. Pr. 701 to 731; Coop. Eq. Pl. Index, h. t.; Redesd. Pl. Index, h. t.; Smith's Ch. Pr. h. t.; 14 Vin. Ab. 442; 2 Hov. Supp. to Ves. jr. 173, 434, 442; Com. Dig. Chancery, D 8; Newl. Pr. o. 4, s. 7; Bouv. Inst. Index, h. t.