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THE

LAW OF INJUNCTIONS.

BY

FRANCIS HILLIARD,

AUTHOR OF "THE LAW OF TORTS," ETC.

PHILADELPHIA:

KAY & BROTHER, 19 SOUTH SIXTH STREET,
LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS.

Entered according to act of Congress, in the year 1865, by

FRANCIS HILLIARD,

in the Clerk's Office of the District Court for the District of Massachusetts.

PREFACE.

The present work, as will be seen, is strictly confined to the subject expressed in the title, Injunctions. It is a very noticeable fault in a law treatise, as well as any other, if, while not wanting in unity of plan, it fail in unity of execution ,—if, tempted by some casual association of other subjects with that of which it professes to treat, it ifly off from the latter, and fill up its pages with the statement of cases and principles, which, however valuable in themselves, have no scientific connection with the main topic sought to be illustrated. Acknowledging its manifold other faults, I think it will be found that this book is not chargeable with the one in question. I may add, however, that, in treating of this single branch of the great code of equity jurisprudence, I have often been strongly tempted to wander into its other copious departments; with all of which, injunction has a direct connection. Equity is a portion of the law, with which no one can be brought even incidentally in contact, without becoming deeply interested, and inspired with the desire of a thorough and exhaustive exploration.

A few remarks upon the

general subject may be pardoned in the preface, as no departure from the rule above laid down with regard to the work itself.

Perhaps there is no feature in our American jurisprudence more full of encouragement, than the now prevalent disposition—supplanting a morbid and undefined fear of the shapeless evils which might result from such a policy—to incorporate into our law the benign principles and the comprehensive and searching remedies of equity.(a) In one aspect, more especially, is this a most desirable tendency. I refer to the adoption of equity jurisprudence, as a substitute for attempts to soften, modify, and adapt the common law, by express statutory enactments. Had the rules and remedies of equity been introduced, with the common law, into our colonial and provincial jurisprudence; it may be doubted whether the statute books of the several United States would have so abounded with brief, positive, and abrupt changes upon some of the most vital subjects of municipal regulation. These changes have been with some truth, no doubt, deemed essential, in order that the law, the growth of less enlightened periods, might keep up with the progress of society. But, from the nature of the case, the remedy has often proved far worse than the disease. Unforeseen consequences have resulted, from the sudden abrogation of time-settled

(1) See the remarks of Mr. Chief Justice Gibson, on page 418.

rules and principles, far more disastrous than any occasional hardship or abuse in their practical application. As a single example, I need only mention the relation of husband and wife-in reference to which American legislation has been so sweeping, so fluctuating, so incoherently various, and, is it too much to say, so unqualifiedly discreditable. With regard to this and numerous other subjects which fall under equity jurisdiction, it would have been far better that the rigor of the common law should have been softened and toned, with exceptions and qualifications, like itself the gradual product of advancing ages; than that the same end should have been sought by a few lines of statutory provision, in a breath undoing the work of years and centuries, and often themselves furnishing the material for doubtful construction and interminable litigation.

The present work is designed to be thoroughly American. While the English cases have been cited, sufficiently to give a correct view of the English law, as the original foundation, and an existing constituent part, of our own jurisprudence; the process of selection has been more largely applied to them than to the decisions of the American courts, which last are designed to be fully and exhaustively stated. The subject of injunction involves so many points which are strictly points of practice, and the English differs so widely from the American practice, that many of the English cases would be of little

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