law which forbids that; because of the strong temptation to fraud, where there is such a conflict of duty and interest; and because one man should not be permitted to take advantage of the neces sities of another, is not infringed by allowing a plaintiff, a creditor, or a mortgagee to purchase at a sheriff's sale, or at a sale made by a trustee of this court; as, in such case, the party is proceeding adversely against his debtor, not by any private dealing, but by the public process of the law, in which he himself is not the seller, but an impartial executive officer or agent of the court. (e) With regard to the discount asked for, it is certain, that the trustee, appointed by the decree to make the sale, can dispose of the purchase money in no way, without the express authority of the court. (f) But, as the mortgage debt, the recovery of which is the sole object of this suit, has been established by the decree for a sale, there can be no impropriety, after first deducting the commissions, expenses and costs, in ordering the proceeds to be, at once, applied in satisfaction of that debt, by discount with the mortga gee as purchaser, or in any other way. And Elizabeth Murdock having failed to comply with the terms of the contract of sale, William Brewer, the plaintiff and mortgagee, must be received as the purchaser, and be allowed the discount as prayed accordingly. Therefore, it is Ordered, that the sale to Elizabeth Murdock be and the same is hereby rescinded; and the petitioner William Brewer be, and he is hereby deemed, taken, and in all respects to be considered as the purchaser of the property in the proceedings mentioned. And the trustee is directed, on the payment by him of all the costs and commissions of this suit, to discount the balance of the amount of the purchase money from the amount of the said William Brewer's claim.

After which William Brewer, by petition, stated that he had complied with the order of the 9th of February, and therefore prayed to have the possession of the property of which he had so become the purchaser, delivered to him.

11th March, 1829.-BLAND, Chancellor.—Ordered, that the said Elizabeth Murdock forthwith deliver possession of the property in the petition mentioned to the said William Brewer, or shew good cause to the contrary on the 28th instant; provided,

(e) Stratford v. Twynam, 4 Cond. Cha. Rep. 193.-(ƒ) Bennett v. Hamill, 2

Scho. & Lefr. 581.

that a copy of this order, together with a copy of the foregoing petition, be served on the said Elizabeth on or before the 18th instant.

After which the matter standing ready for hearing, and the solicitors of the parties having been heard, and no sufficient cause having been shewn why the prayer of the petition should not be granted, it was on the 30th of March, 1829, Ordered, that an injunction issue commanding the said Elizabeth to deliver possession of the property to the said William Brewer. Which not having been obeyed, a habere facias possessionem was awarded, and he was put into possession. Afterwards the auditor stated an account, which was finally ratified on the 22d of October, 1829, from which it appeared, that there was still a balance of the mortgage debt left unpaid by the proceeds of the sales.

After this case had been thus terminated as against Elizabeth Murdock, William Brewer, on the 20th of April, 1830, filed his bill against Gilbert Murdock, in which Brewer stated, that under the before mentioned decree of the 2d of October, 1826, and order of the 9th of February, 1828, he had purchased and become seized of the tract of land in those proceedings mentioned; that this defendant Gilbert Murdock had erected, and persisted in continuing to erect, a fence, so as to include a part of the land so purchased by him, this plaintiff; and that he had brought an action of trespass quare clausum fregit against Gilbert Murdock to recover damages for the trespass so committed, which action was still depending. Upon which he prayed for an injunction to prohibit the defendant 'from continuing the said fence, and enjoining him to remove the said fence already erected;' and for such other relief as the nature of the case might require. To this bill there was subjoined an affidavit of the plaintiff in the usual form. Upon which it was submitted..

20th April, 1830.-BLAND, Chancellor.-The plaintiff prays for an injunction of a more extensive operation than can now be granted. He asks not merely, that things may be preserved in their present condition, but that some things which have been done may be undone; in other words, he asks the court now, and at once, to put forth in his behalf its remedial as well as its conservative powers.

But before imputed wrong can be removed, or any thing like

commutative justice can be administered, it is the duty of the court to give the party complained of an opportunity of being heard. To restrain a defendant from making any abusive use of the property in question; or from disposing of it past recall, amounts to no more than the imposition of a temporary limitation upon the free exercise of his rights, even if it should eventually appear to be entirely and rightfully his; which is quite as far as any court can go in the first instance; and as preparatory to a fair and beneficial hearing and final adjudication. To order a defendant to pull down or remove any erection would be obviously and directly to deprive him of a portion of that which then, at least, appeared to be his property, and was so claimed by him; and that too, at once, and without a hearing; for a house, a fence, or the like has a value, as such, which would be totally destroyed by its being pulled down, and which does not belong to the materials of which it was composed, however carefully they may be preserved.

The only object of the conservative power of the court, as expressed in an injunction of this kind, is, not to determine any controverted right, but merely to prevent a threatened wrong, or any further perpetration of injury, or the doing of any act thereafter whereby the right to a thing may be embarrassed, or endangered, or whereby its value may be materially lessened, or the thing itself may be totally lost. The principal object of an injunction, in cases of this kind, is to prevent irreparable injury by preserving things in their present state; but if the injunction were to order any thing to be pulled down or undone, it is obvious, that it might be, itself used as a means of producing that very kind of irreparable injury to the defendant which the bill charged him with being about to perpetrate against the plaintiff. (g)

There are, however, some cases in which an injunction has been so framed as, apparently, to approach to the very verge of ordering a thing to be undone. As where the regular flowing of a stream of water had been so interrupted by the making, or the interposition of occasional breaches or obstructious, as to be very injurious to the use of it for a canal, or for propelling a mill; an injunction which commanded that the party should not thereafter continue to cause the stream to flow thus irregularly, seemed indirectly to command, and no doubt did involve the repairing of the breaches, and the removing of the obstructions which had caused

(g) Duvall v. Waters, J Bland, 569.

the injurious irregularity complained of. From the peculiar nature of those cases, however, it is obvious that the existing and natural state of things could not otherwise have been preserved. The injunction, in those cases, did not command any thing to be undone, but merely that an injurious irregularity should not be any longer continued, considering the continuance of the act as a repetition of it. (h)

This court has always been governed by these principles in granting injunctions in so limited a form, as expressly, or in terms to require no alteration in the existing state of things, or any thing to be undone or restored; except in so far as a restoration may consequentially follow as a necessary result of the merely restrictive operation of the injunction. As in cases between tenants in common, the court may, under some circumstances, by an injunction or the appointment of a receiver, prevent one of them from taking all the profits to the absolute and total exclusion of the other; the obvious and necessary consequence of which must be to restore the plaintiff prospectively to the enjoyment of an important benefit. And yet the injunction itself could not command the defendant to undo any thing he had done; to re-instate any thing he had altered; or to restore to the plaintiff any thing of which he had been deprived. (i)

(h) Ryder v. Bentham, 1 Ves. 543; Robinson v. Byron, 1 Bro. C. C. 588; Anonymous, 1 Ves. jun. 140; Lane v. Newdigate, 10 Ves. 193; Blakemore v. The Glamorganshire Canal Navigation, 6 Cond. Cha. Rep. 544; Eden Inj. 238.—(i) Tyson v. Fairclough, 1 Cond. Cha. Rep. 386.

NORWOOD V. NORWOOD.-This bill was filed on the 11th of May, 1796, by Edward Norwood against Samuel Norwood. It states that Edward Norwood, the father of the parties, by his last will and testament, bearing date on the 25th of March, 1770, devised as follows:

'I give and bequeath to my dearly and well beloved wife Mary Norwood, all that part of a tract or parcel of land called United Friendship, lying between Dry Run and Persimmon, and northward as far as the line of the land called The Forest, for and during her natural life and no longer. I give and bequeath to my son Edward Norwood and my son Samuel Norwood, all the tract of land whereon I now dwell called United Friendship, to be equally divided between them, their heirs or assigns, forever; but in case either of my said sons should die before they come of age, then it is my will that the survivor shall have and possess the whole tract, but not to disturb my wife during her life: and if it should so happen, that both my sons Edward and Samuel, should die before they come of age, then it is my will, that it shall be equally divided between my three daughters and youngest son, viz: Ruth Norwood, Elizabeth Norwood, Mary Norwood, and John Norwood, to them, their heirs and assigns, forever.'

Some time after which the testator died, and on the 21st of January, 1772, his will was proved according to law. By virtue of which devise, these parties became

Let writs of subpoena and injunction issue, as prayed by the said bill of complaint; except that the defendant is not to be enjoined as prayed to remove the said fence heretofore erected.

seized and possessed of the said land as tenants in common, and used the same accordingly until the year 1785, previous to which period, sundry valuable improvements had been erected on a part of it by the plaintiff; that these parties in the year 1784, by their joint labour and expense, made a public road through the said land, from Baltimore to the river Patapsco, where they had established a ferry, erected a ferry-house, &c.; which ferry was carried on by them jointly, and the net profits thereof divided between them weekly; that on the 12th of November, 1785, these parties entered into an agreement for a partition, whereby, that part on which the buildings had been erected was assigned to the plaintiff, and the other part, adjoining the ferry, was allotted to the defendant, that certain persons were thereby nominated and appointed to make the division, so that each should have an equal quantity of wood and land; and to adjudge and ascertain the difference of soil; and that proper judges should be appointed to ascertain the value of the buildings on each part, which was to be accounted for in the settlement between the parties; in which division and valuation, however, the ferry and its appendages, were not to be taken into consideration, or valued and divided; but to remain as joint property, and the profits thereof to be equally divided between them; that on the 12th of December, 1785, the referees awarded, that the defendant should pay to the plaintiff the sum of £400, for the difference of soil, which sum the plaintiff agreed to take; that three skilful persons were chosen to value the improvements, who awarded, that the improvements on the plaintiff's part amounted to £1,290 5s. 2d. and those on the defendant's part amounted to £215 Os. Od.; so that the balance due from the plaintiff to the defendant, on account of improvements, amounted to the sum of £537 12s. 7d. which were exclusive of the ferry and its benefits; that in pursuance of the said agreement the parties entered upon, and became severally possessed of the parts of the tract called United Friendship, according to the division thus made; and had ever since so occupied and enjoyed the same, except the ferry, which was then, and had always since, been held by them as tenants in common, for their joint benefit; that in order to have a final settlement of all their dealings and transactions, certain persons were chosen and appointed. to arbitrate, settle, and adjust all claims and demands between them, who met accordingly, on the 15th of June, 1787, and awarded a balance to be due to the plaintiff of £168 0s. 4d. after allowing and crediting the before mentioned sums, awarded for differences of soil and improvements; which adjustment was always acquiesced in, and never called in question by the defendant until about the month of May last, that these parties had jointly held the ferry, and divided the profits thereof weekly from the time it was established until the 6th of September last, when the defendant, without any just cause, and in violation of their agreement, had disturbed the plaintiff in the possession of his moiety, taken the whole to his own use, and prevented the plaintiff from recovering any part of the profits thereof; that the average monthly profits of the ferry amounted to £35 or £40, to one-half of which the plaintiff was entitled.

Whereupon it was prayed, that the defendant might be compelled to execute deeds of partition, according to the terms of the said division; that the defendant be ordered to account for the rents and profits of the ferry; that the plaintiff might be quieted in the possession and enjoyment of his half-part thereof; and that he might have such further and other relief as the nature of his case might require; and that a writ of injunction might be granted, directed to the defendant, commanding him

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