 As noted in the previous lesson, the courts 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 courts 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 a personal disagreement. The 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 a limited authority to issue orders instead of just 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 the 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 the passages addressing the establishment of a 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, and 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 a selection of the type of relief they saw, 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 damages to people. The injunction is an order that directs everyone involved in an official or otherwise authorized action to stop their efforts, until it can be examined in court to assure that continuation of the action will not unreasonably damage the one who gains the injunction. It is especially potent as a checkpoint 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 other courts seem inclined to do in their official capacity. A law to open access to commercial fishermen into areas that have 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 a long term damage to the Indians, but only delay the benefit for commercial fishermen. It would keep the status quo while the matter was brought under review by the court sitting in equity. The order is also generally harmless to the government officers involved. It 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 in the action is not a cause of harm to the others, then the injunction has a reasonable chance of being signed. The wrong that is threatened still has to be severe or at least to affect injustice for many or this special order is not appropriate. The courts are not there to manage over the other 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 take some damage the order is lifted and the action can be a law that goes forward. That is the nature of injunction. The important legal perspective is that the decisions will be made on potential harm, not on the authority of those who are taking action. It is an act based on potential damages, not on some judgment addressing the ability of government officers to pass the law on 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 divorcing Robert claiming that he is abusive, the courts as equity relief can issue Robert in order to prevent him from even trying to approach her outside of the court actions until the divorce action is settled. Again, Jane's claim of abuse is not sufficient to give this extraordinary relief. There would have to be some evidence of past abuse like hospital records of treatment for wounds consistent with the abuse claim or photographs taken and witnesses to be in accord with her claims. The act again is unlikely to work any harm on Robert should he already have moved out. If he asks for some access to the family home to get property it is likely to be made a condition of the order. Again, this is not an action against Robert, but an action to prevent a tort or crime that appears likely from evidence, until the matter can be brought into court for resolution. The police will take notice of the 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 a court acting under its granted authority. Injective orders are in accord with the court's acceptance that the state or federal government is a sovereign. 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 federalist supervisor, tried to fire Frank, an employee he found unacceptable. He even started the procedure to remove the employee from the official roles and stop further pay. On higher review, Joshua's action was reversed and 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 in some ways reasonable and they will not interfere on his behalf. After six weeks without pay, Frank takes the matter into court. The action requests 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. This is within the purpose of mandamus. It is an order to a responsible officer to fulfill the duties of their office as to reinstating Frank as an employee and assuring 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 incarcerations for failure to perform in a court with the order he signed. A more mundane application of this ability to sign orders might be realized in regular tort actions. Jill, an heir to receive a specific bequest of her mother's good China, she finds that her older sister has taken it for herself removing it prior to bequest. On contact, her sister offers to pay the reasonable cost of the dishes, which is what a suit for damages would award. Jill addresses 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 performances encountered in contract actions that involve unique things like land, artwork, and people. Where there is an established contract and the one party has performed their part to gain some 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 do some maintenance and minor repairs. She accepts and purchases the maintenance and repair services from the Allister Company. Rico refuses to sign the contract with Wanda because he has an offer to rent it at three times the price and signs that alternative contract. Rico offers to pay Wanda maintenance and repair contract costs as restitution. Based on unjust enrichment, Wanda can take this into court seeking both the cost of her maintenance and repair contract and the amount that Rico gained by signing the contract with the 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 Wanda. The justice concept is that Rico should not benefit from dishonoring his promise to rent to Wanda. That type of behavior rewards the breach of the agreement he had with Wanda. The court may well grant her unjust enrichment as part of its resolution. That is a matter in equity rather than in law. Unjust enrichment decisions are not meant to be punitive actions. They are meant to prevent a tort freezer from benefiting 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 the dog that Peter abandoned and Peter is willing to bear the cost of getting even. He notes that she has taken the pet in violation of the provisions under which she is renting a house to live in. This goes to her landlord noting that the animal is living with her in violation of her contract and he has a few pictures of damages that appear to come out of 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 someone 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 the court actions 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 English government responded by establishing courts of equity. These actions apply 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 preventing authorized actions by other government officers when this is seen to be necessary to assure justice. This is an area of law 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.