for preroga tive writ of mandamus Proceedings absolute in the first instance, if the Court shall think fit; and the writ may bear teste on the day of its issuing, and may be made returnable forthwith, whether in term or in 17 & 18 Viet. vacation, but time may be allowed to return it, by the Court or a Judge, either with or without terms. accelerated. c. 125, s. 76. Proceedings on prerogative writ of mandamus, 17 & 18 Vict. c. 125, 8. 77. Specific deli very of chattels 17 & 18 Vict. 79. The provisions of "The Common Law Procedure Amendment Act (Ireland), 1853" and of this Act, so far as they are applicable, shall apply to the pleadings and proceedings upon a prerogative writ of mandamus issued by the Court of Queen's Bench, but subject to any general rules which the said Court may make, and which it is hereby empowered to make in relation thereto. 80. The Court or a Judge shall have power, if they or he see fit so to do, upon the application of the plaintiff in any c. 125, s. 78. action for the detention of any chattel, to order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining such chattel upon paying the value assessed, and that if the said chattel cannot be found, and unless the Court or a Judge should otherwise order, the Sheriff shall distrain the defendant by all his lands and chattels in the said Sheriff's bailiwick till the defendant render such chattel, or, at the option of the plaintiff, that he cause to be made of the defendant's goods the assessed value of such chattel; provided that the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defendant's goods the damages, costs, and interest in such action (†). Plaintiff's right to en force return. (t) Previous to the Act, in actions of detinue the judgment was for the return of the chattel or its value, and the damages and costs. The consequence was that the defendant might retain the chattel upon paying for it, and the only manner in which a plaintiff could ensure the return of the chattel was by filing a bill in equity. The bill could be filed only in cases where the chattel was of peculiar value to the owner (Pusey v. Pusey, 1 W. & T. L. C., 3rd ed., 735); or where some fiduciary relation existed between the parties (Wood v. Rowcliffe, 3 Hare, 304). The plaintiff must obtain an order from a Judge or the Court in order that execution may issue for the return of the chattel without leaving an option to the defendant of paying the value of it. To obtain the order the value of the chattel must have been assessed (Chilton v. Carrington, 24 L. J. C. P. 78); where also it was held that an order made by a Judge may be reviewed by the Court. Under the 2nd section of the Mercantile Law Amendment Act (19 & 20 Vict., c. 97, post, in the Appendix), the plaintiff may, in actions for non-delivery of goods, obtain execution for delivery of the goods by order of the Court or Judge. right to return chattel As to the right of a defendant to return the chattel, and so escape from Defendant's the liability of paying the value of it, the Court will in cases where no special damage is alleged, or only colourably so, allow the defendant before judgment to return the chattel, upon payment of costs and a nominal sum for damages (Gallagher v. Nolan, 9 Ir. Jur. N. S. 382; Ch. Ar. Pr., 12th ed., p. 1378). The plaintiff will, however, in such cases be allowed the option of proceeding with the action at his own risk for the purpose of recovering further damages, if he claims such (Lyons v. Keller, 9 ir. Jur. N. S. 381); and see Lloyd v. Sadleir, 7 Ir. Jur. N. S. 15. writ of injunction. c. 125, s. 79. 81. In all cases of breach of contract or other injury, where Claim of the party injured is entitled to maintain and has brought an action, he may, in like case and manner as herein-before provided with respect to mandamus, claim a writ of injunction against the repetition or continuance of such breach of contract or 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 (u). (u) This and the following sections provide a specific remedy against the Injunction. repetition or continuance of a breach of contract or other injury. Formerly the plaintiff's only means of obtaining such a remedy was by a suit in a court of equity. It should be borne in mind that in order to enable a plaintiff to take ad- When remevantage of this and the following sections there must be a legal right vested dy applicable in him, and a violation of such right giving a cause of action. Until the right is actually invaded he cannot bring an action of injunction, although it may be perfectly certain that the defendant is about to violate it; and even if the plaintiff succeeds in the action the writ will not be issued without the order of the Court (sec. 84). It may, however, where the circumstances of the case require it, be issued before judgment (see same section). The Act provides that the writ may be claimed "in all cases of breach of contract or other injury"-words much more extensive than those employed in the section relating to mandamus, and the remedy, therefore, is of wider application. Thus, in an action for an infringement of a plaintiff's copyright, an injunction may be claimed to restrain the defendant from selling copies (Mayall v. Higby, 1 H. & C. 148). So, also, the writ may be claimed in an action for an obstruction to ancient lights (Jessel v. Chaplin, 2 Jur. N. S. 931); or to a watercourse; or in an action for breach of a covenant for quiet enjoyment contained in a mining lease, where the disturbance complained of consists in working the surface so as to interfere with the mining operations (Shaw v. Stenton, 2 H. & N. 858). Where, however, there is an agreement to pay a sum by way of liquidated damages for breach of contract, the Court will not grant the writ (Carnes v. Nesbitt, 7 H. & N. 158). An injunction may be prayed for in an action for a nuisance (De le Rue v. Fortescue, 2 H. & N. 324). Again, the writ may be claimed, although in effect by restraining the defendant from a continuance of the breach it requires him to do some positive act. Thus, in Tate v. Devlin, 3 Ir. Jur. N. S. 341, where an action had been brought for a breach of a covenant to build in a particular way, and the defendant continued to build in the manner complained of, a conditional order was granted for an injunction to compel the defendant to take down the erections; and a similar order was made in Jessel v. Chaplin, 2 Jur. N. S. 931, a case of an obstruction to ancient lights. Where, however, the breach consists in non-feasance, the statute, it would appear, does not apply. A mandamus is then the proper remedy, if the Court has jurisdiction to grant it. Again, where the ordinary remedy in the action is in its nature specific, the writ cannot be claimed, as in an action of ejectment (Baylis v. Legros, 2 C. B. N. S. 316). And besides the class of cases mentioned, the Court will, in the exercise of its discretion, refuse to allow the writ to be issued whenever it considers that under the circumstances it would not be an appropriate remedy; see sec. 84. 82. The writ of summons and plaint in such action shall be in the same form as the writ of summons and plaint in any personal action; but on every such writ and copy thereof there shall be endorsed a notice that in default of appearance the plaintiff may, besides proceeding to judgment and execution for damages and costs, apply for and obtain a writ of injunction (v). (v) For a form of declaration, see Bullen and Leake, Pr. Pl., 2nd ed. p. 296. Care must be taken to endorse the writ with the notice mentioned in the section. For a form of notice, see the English forms of proceeding, M. V. 1854, No. 36. 83. 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 mandamus under the prov sions herein before 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 by a Judge (w). (w) As to the pleadings in such an action a distinction must be drawn between pleading to the breach of contract or other injury complained of and pleading to the claim for a writ of injunction. As a general rule a defendant cannot plead to the claim for a writ of injunction (Booth v. Taylor, L. R. 1 Ex. 51); neither can he demur to it (Bilk v. London, Chatham, and Dorer Railway Co., 3 H. & C. 95) In fact as the issuing of the writ is a matter for the discretion of the Court, the proper stage of the proceedings at which to decide whether it shall issue or not is when the application for it comes to be made. And as the Court will in general grant a conditional order only in the first instance, the defendant should reserve whatever case he has to make against the issuing of the writ, until showing cause. It follows that the decision of the Court as to the issuing of the writ cannot be reviewed in a Court of Error. These considerations are, however, applicable only to cases where the jurisdiction conferred by the statute exists, and where the defendant is seeking to plead matter which goes to show that the Court, in its discretion, should not allow the writ to issue. Whenever it appears that the remedy is not applicable, in consequence of the provisions of the Act conferring no jurisdiction, as in the case of an action of ejectment, there is no reason why the plaintiff should not at once demur (Bilke v. London, Chatham, and Dover Railway Co., 3 H. & C. 95), or perhaps apply to set the writ aside. As to the question of costs, see sections 72 and 74, ante. cause. 17 & 18 Vict.c. 125, s. 82. 84. It shall be lawful for the plaintiff, at any time after the writs of incommencement of the action, and whether before or after junction may be applied judgment, to apply ex parte (x) to the Court or a Judge for a for at any writ of injunction (y) to restrain the defendant in such action stage of the from the repetition or continuance of the wrongful act or breach of contract complained of, 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 such writ may be granted or denied by the Court or Judge, upon such terms (2) as to the duration of the writ, keeping an account, giving security, or otherwise, as to such Court or Judge shall seem reasonable and just, and in case of disobedience such writ may be enforced by attachment: provided always, that any order for a writ of injunction made by a Judge, or any writ issued by virtue thereof, may be discharged or varied or set aside by the Court, on application made thereto by any party dissatisfied with such order. (x) A conditional order only will be made in the first instance (Gettings v. Symes, 15 C. B. 362; Tate v. Devlin, 3 Ir. Jur. N. S. 341.) discretion of (y) The granting of the writ lies in the discretion of the Court. Therefore Issuing of where the plaintiff had commenced an action for liquidated damages for the writ lies in breach complained of, the Court refused the application (Carnes v. Nesbitt, 7 Court. II. & N. 158); and see Young v. Chalkley, 15 W. R. 743). So, also, where it is impossible for the defendant to comply with the writ-as in a case where an action was brought against a tenant for building in breach of a covenant, and it appeared that the buildings had been erected by an undertenant-the Court will not make the order (London and S. W. R. Co. v. Welb, 15 C. B. . N. S. 450); and see Matthews v. King, 3 H & C. 910. (z) In Longfield v. Cashman, 11 Ir. C. L. R. Ap. 23, the Court ift granting Terms. the writ put the plaintiff under terms to speed the action and to pay the defendant, in case a verdict was found for him, any sum which the jury should award to him as compensation for the damage sustained by the interference of the Court. And see, also, as to the terms, Ch. Ar. Pr. 12th ed., p. 1120. Equitable defence may be pleaded. c. 125, s. 83. 85. It shall be lawful for the defendant in any action, and for the plaintiff in any action for replevin of goods, in any of 17 18 Vict. the Superior Courts, in which, if judgment were obtained, he would be entitled to relief against such judgment on equitable grounds, to plead the facts which entitle him to such relief, and the said Courts are hereby empowered to receive such pleading, provided that such pleading shall begin with. the words "for defence on equitable grounds," or words to the like effect (a). General principles applicable to equitable pleadings. Relief applicable should be uncon ditional. Taking accounts. Nature of equity relied on. (a) The power given by the present section, and by sect. 87, post, of pleading equitable defences and replications, has been largely exercised and the principles on which the Courts act in allowing or disallowing such pleadings are now well settled. In order that a party may be able to plead on equitable grounds, the facts relied on by him must be such as would entitle him in equity to an absolute and perpetual injunction against the judgment in the action, and not merely to a temporary or conditional injunction (Wodehouse v Farebrother, 5 El. & Bl. 277). The Court cannot pronounce a conditional judgment (id.); and if the decree which a Court of Equity would pronounce would not be simple and final, but would be clogged with conditions or preliminaries which the forms of common law judgments or the machinery of its procedure are not adapted for directing or carrying out, the party will be left to his remedy in the Court of Equity (Colles v. Prendergast, 10 Ir. C. L. R. 336), in which case the principles on which the Courts of Common Law act in allowing equitable pleadings will be found fully discussed in the judgment of Christian, J. If therefore a Court of Equity would require the execution of an instrument, such as a surrender or a lease, as a condition precedent to granting relief, the equitable pleading will be bad (Mines Royal Societies v. . Magnay, 10 Ex. 489; Toole v. Ryder, Ir. R. 2 C. L. 652; Deering v. Lawler, 7 Ir. C. L. R. 333). So, also, if a Court of Equity, as part of its decree, would direct an instrument to be reformed, the pleading will be bad (Solvency Guarantee Company v. Freeman, 7 H & N. 17; and see further, the cases referred to infra, under the head of "mistake"). It has in some cases been considered, that if the allowing of the pleading would involve the taking of accounts, it cannot be allowed (Cochrane v. Camack, 7 Ir. C. L. R. 10; Considine v. Tubbledy, 2 Ir. Jur. N. S. 188; Collins v. Prendergast, 7 Ir. C. L. R. 542); but it would appear, that such an objection is not fatal (Marcom v. Bloxam, 11 Ex. 516), and having regard to the facilities which courts of law now possess for the taking of accounts, the objection is not entitled to so much weight as formerly. The equity relied on by a party seeking to plead on equitable grounds must be such as is cognizable in a Court of Equity. An equitable defence of mistake must, therefore, show that the mistake was mutual (Masurel v. Harrison, 4 Ir. Jur. N. S. 119; Scott v. Littledale, 8 El. & Bl. 815). So also, in an action for the value of coal wrongfully taken out of the plaintiff's mine, a replication to a plea of the Statute of Limitations, that the wrongful taking was fraudulently concealed until within six years before suit was disallowed, on the ground that a Court of Equity would not restrain the defendant from setting up such a defence (Hunter v. Gibbon, 1 H. & N. 459); so also, in an action against a surety, mere negligence, even though gross, on the part |