 As noted in the previous lesson, the court's taking action to recover damages had some value, but it was very limited. Treating torts as a personal quarrel to be adjudicated shifted the cost of the court action to be a burden upon those who use the system. The court involvement addressed the tort as a matter of business more than of justice. In order to make it work, the court's allowed attorneys to engage in what would be a criminal wrong for the average person, getting their earnings from a portion of the damages they could collect for their clients. Again, it remarkably increased the cost of the parties who engaged the court to settle their personal disagreements. Those courts that addressed recovery of damages were the common law courts. In English law, a second court authority was established to focus on justice, and it was given limited authority to issue orders instead of judgments. It could act to best assure justice where the situation could not be resolved by restitution of the one injured. Where these were separate courts in English system, our American Revolution upset the authority of the equity courts. There was no sovereign government to issue orders to sovereign citizens. Yet the value of having these equity courts was so obvious, and the legal principles and processes so well established that it made no sense to just deny the service to the people of the United States. The direction of solution was accordingly written into the Constitution in a passage addressing the establishment of the Supreme Court. It was authorized to hear matters in both law and equity. This was accepted for both federal and state courts. Both were able to hear actions in either law or equity. Though the procedures and court actions remained separate on the courts had to sit in one mode or the other, they were both available to those who would use the courts for tort actions. The one who initiated the action could, by selecting the type of relief they thought, determine whether the court would receive the issue as a matter of law or of equity. Among the most used equity services are orders that stop official actions that might cause damage to people. The injunction is an order that directs everyone involved in an official and otherwise authorized action to stop their efforts until it can be examined by the court to assure the continuation of the action is not unreasonably damaging to the ones who gained the injunction. It is especially potent as a check upon sovereign government actions. It is a way to gain legal review prior to letting the action go forward. It is a court acting as the people's advocate in addressing what other areas of government or even courts seemed inclined to do in their official capacity. A law to open access to commercial fishermen into an area that had traditionally been restricted on behalf of an Indian tribe could easily have the tribal representative request an injunction to prevent depletion of their traditional source of food and income. The injunction on implementing that law would prevent what could be long term damages to the Indians but only delay the benefit for commercial fishermen. It would keep the status quo until the matter was under review by the court and sitting in equity. The order is also harmless to the government officers involved that only delays their efforts while the potential for injustice is under review. The level of evidence is accordingly not that great when it comes to gaining an injunction. If there is an indication of injustice and delay of the action is not a cause of harm to others then the injunction has a reasonable chance of being signed. The wrong that is threatened still has to be severe or to affect injustice for many or this special order is not appropriate. The courts are not there to manage over the areas of government but to provide citizen relief. If on review the harm is found to be unacceptable then the injunction can be made permanent effectively stopping the action before it causes injury. If it is found to be reasonable even if the Indians who fish take some damage the order is lifted and the action on the law can go forward that is the nature of injunction. The important legal perspective is that the decision will be made on potential harm not on the authority of those who are taking official action. It is an act based on potential damage not some judgment addressing the ability of government officers to pass a law in the normal course of their duties. A more personal application of this type of order is seen in the issue of a protective order. If Jane is suing Robert claiming he is abusive the court can as equity relief issue Robert an order to prevent him from trying to approach her outside of court until the divorce action is settled. Again her claim of abuse is not sufficient to give the extraordinary relief. There would have to be some evidence of past abuse like hospital records of treatment for wounds consistent with the abuse claimed or photographs taken and witnessed to be in accord with her claims. The act again is unlikely to work any harm on Robert since he has already moved out. If he asks for some access to the family home to get his property it is likely to be made a condition of the order. Again this is not an order against Robert but an action to prevent a tort or a crime that appears likely from evidence until the matter can be brought into court for resolution. The police will take notice of an order on Jane's request and enforce it as necessary. You should note that the court sitting in equity has a great deal of discretion as to when and how such an order will issue. It is not a judgment based relief but an order issued by the court acting under its granted authority. Injunctive orders are in accord with the court's acceptance that the state and federal government in the United States are sovereigns. Sitting in equity the court can also issue orders to those in public office to specifically perform a duty of their office. This relief is called mandamus. Joshua, a federal supervisor, tried to fire Frank, an employee who he found unacceptable. He even started procedures to remove the employee from the official roles and stop further pay. On higher review Joshua's action was reversed but he never does the paperwork to restore Frank's pay status. Appeal to the higher ups in the organization has not been productive. Joshua has apparently convinced them that his decision to terminate Frank was reasonable and they will not therefore interfere on his behalf. About six weeks without pay and Frank takes the matter into court. The action requests issue of mandamus to the senior officer of the employing organization. It is an order to reinstate Frank and deliver back pay by the end of the current pay period. Mandamus is within the purpose of mandamus. It is an order to a responsible officer to fulfill the duties of their office and to reinstate Frank as an employee and ensure that he gets paid. If there is further delay it is likely to be brought before the judge for determination of whether legal sanctions are appropriate. If the order is not obeyed the issuing judge can also issue a summons to those named in the order to assess personal damages or even incarceration for failure to perform in accord with the order he signed. A more mundane application of this ability to sign orders might be realized in regular tort actions. Jill and air is to receive specific bequest of her mother's good china. She finds that her older sister has taken it for herself removing it prior to the bequest. On contact her sister offers to pay the reasonable cost of the dishes which is what a suit for damages would award. Jill can address the matter in equity seeking an order to deliver the family heirloom to her. The court can issue the equity order requiring specific performance of the delivery. Specific performance is encountered in contract actions that involve unique things like land and artwork and people where there is an established contract and one party has performed their part to gain an irreplaceable benefit through the contract the other party can be ordered to do their part. This only happens where money damages will not yield justice. The order of specific performance is only used where it is necessary to achieve justice. Rico agrees to rent his summer place on Lake Michigan to Wanda if she is willing to see to some maintenance and minor repairs. She accepts and purchases the maintenance and repair services from the Alistair company. Rico refuses to sign the contract with Wanda because he has an offer to rent it at three times the price and signs an alternative contract with them. Rico offers to pay her maintenance and repair contract as restitution. Wanda can take this into court seeking both the cost of her maintenance and repair and the amount that Rico gained by signing the contract with others. Where Rico has offered restitution in accord with the relief available through provable damages, the court can grant justice based on the less than honest dealings with Jill. The justice concept is that Rico should not benefit from dishonoring his promise to rent to Jill. That type of behavior rewards the breach of the agreement he had with Jill. The courts may well grant the unjust enrichment as part of its resolution. That is a matter of equity rather than law. Unjust enrichment decisions are not meant to be punitive actions. They are meant to prevent the tort-feasor from benefitting from an action that wrongs someone else. It is a justice action that can end up being beneficial to the one who is wrong. Peter feels that he was wrong by Julia, who took in the dog that Peter abandoned, and Peter is willing to bear the cost of getting even. He notes that she has taken on the pet in violation of the provisions under which she is renting a house to live in. He goes to her landlord, noting that the animal is living with her there in violation of her contract. And he has a few pictures of damages that appears to come from this. He offers to pay the expenses of suing her for the damages and terminating her living arrangements. This is the tort of maintenance. It is interfering in someone else's relationship through promoting a court action. It is stirring up trouble in a way that involves misuse of the courts to satisfy his purpose, even though he is not a party to the matter that is brought into the court for resolution. Maintenance is a third-party involvement, a legal action by somebody who is not even a party to the court action. It is an action that puts the damages associated with using the courts upon someone else. It is abuse of the courts, using the damaging nature of legal process to commit a wrong upon someone else. The courts can, in equity, act against the one who maintains an action to the detriment of a third party. They are considered as committing a tort by their actions and the one who is suffering the result can treat it as an intentional injury. The court does not have to allow people to use it to abuse third parties. That is a matter of equity. And the courts can assess damages against the one who is interfering. The limits of damage recovery actions have been a challenge from early times. And the English government responded by establishing courts of equity. These actions use sovereign authorities and have very wide judicial discretion to issue or not issue the few well-specified remedies that are available. Actions in equity can be potent, even arresting actions by other government officers when this is seen as necessary to assure justice. This is an area where the courts gain respect and awe of both citizens and leaders, for it directly sees to the purpose for their being courts, the promotion of justice through the acts of the court.