not shown or security

not furnished.

485. If the defendant fail to show cause why he should not furnish security, or fail to furnish the security required Attachment if cause within the time fixed by the Court, the Court may order that the property specified in the application, or such portion thereof as appears sufficient to satisfy be passed in the suit, shall be attached. show such cause or furnish the required security, and the property specified in the application or any por tion of it has been attached, the Court shall order the attachment to be withdrawn.

any decree which may If the defendant Withdrawal of attachment.

Mode of making attachment.

Investigation

o f claims to property attached before judg

ment.

486. The attachment shall be made in the manner herein provided for the attachment of property in execution of a decree for money.

487. If any claim be preferred to the property attached before judgment, such claim shall be inves tigated in the manner herein before provided for the investigation of claims to property attached in execution of a decree for money.

Hereinbefore.-See Secs. 278 et seq.

488. When an order of attachment before judgment is passed, the Court which passed the order shall remove the attachment whenever the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.

Removal of attachment when security furnished.

489. Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from apply. ing for the sale of the property under attachment in

execution of such decree.

Existing prior to the attachment-See Sec. 276. The insertion of these words has not removed much doubt. It is not yet clear whether or no a plaintiff who attaches before judgment, can place himself in a better position than a decree-holder who omits to attach immediately after judgment.

From applying for the sale.-Even if he attaches after the plaintiff who attaches before judgment? I think that even in such case the attachment before judgment shall not bar him.

In Referred Case No. 11 of 1871, 6 H. C. R., 135, it was held that the section renders an attachment before judgment ineffectual as a bar to process of execution against the property attached in satisfaction of a decree in another suit, whether obtained before or after the attachment.

Property attached under this chapter, not to be re-attached in execution of decree.

490. Where property is under attachment by virtue of the provisions of this chapter, and a decree is given in favour of the plaintiff, it shall not be necessary to re-attach the property in execution of such decree.

C.-Compensation for improper Arrests or Attachments.

Compensation for obtaining arrest or attachment on insufficient grounds.

491. If in any suit in which an arrest or attachment has been effected, it appear to the Court that such arrest or attachment was applied for on insufficient grounds,

or if the suit of the plaintiff fails, and it appears to the Court that there was no probable ground for instituting the suit,

the Court may, on the application of the defendant, award against the plaintiff in its decree such amount, not exceeding one thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury caused to him by the arrest or attachment:

Proviso.

Provided that the Court shall not award under this section a larger amount than it might decree in a suit for compensation.

An award under this section shall bar any suit for compensation in respect of such arrest or attachment.

Sec. 588 does not give an appeal from any orders made under this section. Where an award is made in the decree, ordinarily the award will be opens to appeal as part of the decree.

An award.-Not also an order refusing to award compensation. Generally, a defendant who has incurred expense or suffered injury in consequence of an improper arrest or attachment before judgment, will be at liberty to sue for damages whether he has not applied, or has applied unsuccessfully, for compensation under this section.

CHAPTER XXXV.

OF TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS.

A.-Temporary Injunctions.

This Chapter must be read by the light of the Specific Relief Act, 1877, particularly of Part III " of Preventive Relief."

Chapter II of Kerrs Injunctions treats of "Injunctions in general" as follows: "An injunction is a writ issuing by order and under seal of a Court of equity. A writ of injunction may be described to be a judicial process whereby a party is required to do a particular thing or to refrain from doing a particular thing according to the exigency of the writ. The process, however, is rather preventive than restorative, though it is by no means confined to the former object. When commanding an act to be done,

it issues after decree, and is in the nature of an execution to enforce the same; as, for instance, it may contain a direction to the party defendant to yield up or to quit or continue the possession of the land or other property which constitutes the subject-matter of the decree in favor of the other party. Gilb. For. Rom., Ch. 11, pp. 194, 195; Stribley v. Hawke, 3 Atk., 275; Huguenin v. Basley, 15 Ves., 180; Gray v. Stanford, 8 Jr. Eq., 678; Eden on Inj., ch. I, pp. 1, 2, Story Eq. Jur., 861, 862.

Injunctions are either interlocutory or perpetual. Interlocutory injunctions are such as are to continue until the hearing of the cause upon the merits, or until discovery, if that be the object of the application, or generally until further order. Perpetual injunctions are such as form part of the decree made at the hearing upon the merits, whereby the defendant is perpetually inhibited from the assertion of a right or perpetually restrained from the commission of an act which would be contrary to equity and good conscience. Gilb. For. Rom., 194, 195. The perpetual injunction is in effect a decree, and concludes a right. The interlocutory injunction is merely provisional in its nature, and does not conclude a right. The effect and object of the interlocutory injunction is merely to preserve the property in dispute in statu quo until the hearing or further order. In interfering by interlocutory injunction, the Court does not in general profess to anticipate the determination of the right, but merely gives it as its opinion that there is a substantial question to be tried, and that till the question is ripe for trial, a case has been made out for the preservation of the property in the mean time in statu quo. A man who comes to the Court for an interlocutory injunction is not required to make out a case which will entitle him at all events to relief at the hearing. It is enough if he can show that he has a fair question to raise as to the existence of the right which he alleges, and can satisfy the Court that the property should be preserved in its present actual condition, until such question can be disposed of. Glascott v. Lang, 3 M. & C., 451 455; Hilton v. Lord Granville, Cr. & Ph., 283, 292; Great Western Railway Co. v. Birmingham and Oxford Junction Railway Co., 2 Ph., 597, 603 ; Shrewsbury and Chester Railway Co. v. Shrewsbury and Birming

ham Railway Co., 1 Sim., N. S., 410, 426; Dyke v. Taylor, 3 D. F. & J., 467; Walker v. Jones, 1 L. R., P. C., 50, 61."

Chapters II, III & IV of Mr. Colletts work on Injunctions throw much light on the provisions of Sections 492 and 3.

Injunction. This is an ancient word of art, from the Lat. injung-, which meaut inter alia to lay or impose upon as a burden.

According to Cowells Interpreter :-" An injunction is an interlocutory decree out of the Chancerie, sometimes to give possession unto the plaintiffe, for want of appearance in the defendant, sometimes to the Kings ordinary court, and sometime to the court christian, to stay proceeding in a cause upon suggestion made, that the rigour of the law, if it take place, is against equitie and conscience in that case."

Since that work was compiled the 'injunction' of Chancery has become a far more extensively useful process. Story says in § 861-" A writ of injunction may be described to be a judicial process, whereby a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ." And in § 872, he quotes the following passage from a learned writer, Eden, ch. 1, to show the most ordinary objects of the writ:-"To stay proceedings in Courts of Law, in the spiritual courts, the courts of admiralty, or in some other Court of Equity; to restrain the indorsement or negotiation of notes and bills of exchange, the sale of land, the sailing of a ship, the transfer of a stock, or the alienation of a specific chattel; to prevent the wasting of assets or other property pending litigation; to restrain a trustee from assigning the legal estate, or from setting up a term of years, or assignees from making a dividend; to prevent the removing out of the jurisdiction, marrying, or having any intercourse, which the court disapproves of, with a ward; to restrain the commission of every species of waste to houses, mines, timber, or any other part of the inheritance, to prevent the infringement of patents, and the violation of copy-right, either by publication or theatrical representation; to suppress the continuance of public or private nuisances; and by the various modes of interpleader, restraint upon multiplicity

of suits, or quieting possession before the hearing, to stop the progress of vexatious litigation."

492. If in any suit it be proved by affidavit or otherwise

Cases in which temporary injunction may be granted.

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant

threatens, or is about, to remove or dispose of his property with intent to defraud his creditors,

the Court may by order grant a temporary injunction to restrain such act, or give such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, or refuse such injunction or other order.

The old Sec. 92 has been severed into this section and Secs. 503

and 4, and very considerably altered.

In any suit. So in England under Order LII, Rule 4, R. S. C., the plaintiff in a suit may apply to the court or a judge either ex parte or with notice, for an injunction to prevent any threatened or apprehended waste or trespass, with reference to Sec. 25, SubSec. 8, of the Judicature Act, 1873.

By affidavit. It appears from Kerrs Inj., p. 612, that: Every application for an injunction, except in an interpleader suit, must be supported by affidavits verifying the material allegations of the bill, so as to show that on the face of the evidence they are well founded. See Magnay v. Mines Royal Co., 3 Drew, 130, 133. The affidavits should contain no allegations not inserted in the bill. Facts not founded on allegations in the bill must not be introduced into the affidavits. Affidavits are to be considered only as evidence of the allegations made in the bill, and cannot be attended to as laying a foundation for equities not otherwise claimed. Yates, 1 Beav., 301; Burgess v. Horne, 14 L. T., 461. be no variance between the allegations in the bill or the aid thereby sought and the affidavits in support of it. Wattleworth v. Pitcher, 2 Pri., 189; Stocking v. Llewellyn, 3 L. T., 33.

Dawson v.

There must

The affidavits are usually made by the plaintiff himself, Mollett v. Enequist, 25 Beav., 609, but they may be made by any person acquainted with the facts, Kenworthy v. Accunor, 3 Madd., 550; Lord Byron v. Johnstone, 2 Mer., 29; Hamilton v. Board, 1 N. R., 379. An affidavit, however, made by the solicitor of the plaintiff,