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Dismissal of been relaxed; and the courts of law, where necessary,
take notice of injunctions: thus in several cases in which a defendant has stayed proceedings by injunction, he shall not afterwards have the usual notice to plead, of trial, &c. (a).
A judgment of nonpros cannot be regularly signed pending an injunction (6). It has also been determined, contrary to former cases (c), that where a plaintiff has been restrained by injunction for a year from taking out execution, he may do so without a scire facias (d).
Lord Mansfield laid it down as a rule, that though he would not wait at nisi prius for any proceedings in equity, yet that he would on no account take a cause out of its course for the purpose of defeating them: and this is the present practice (e).
(a) Tidd, Pr. 360, 361. 371. 483. 717.
(c) Winter v. Lightbound, 1 Stra. 301. Booth v. Booth, 6 Mod. 288. Salk. 322. Hodson v. Earl of Warrington, 3 P, W. 36.
(d) Mitchell v. Cue, Burr. 660.
Of Injunctions to stay Proceedings in the Spiritual
Courts, the Courts of Admiralty, fc.
INJUNCTIONS to restrain parties suing in the Spiritual or Admiralty courts differ as materially from Prohibitions, as it has been already shown to be the case, with regard to Injunctions to stay proceedings at law (a). Courts of Equity, observed Lord Hardwicke, do not grant injunctions where the ecclesiastical court proceeds without jurisdiction, but where there are some equitable circumstances between the parties (6).
However, though the courts do not profess to proceed upon the ground of a defect of jurisdiction, yet it is remarkable that one of the most ordinary instances of this species of interposition, seems exclusively founded upon it, viz. where a suit is instituted in the spiritual court for tithes, and a modus is set up as a defence (c). Lord Hardwicke, upon an application of this nature, observed, that he could only grant an injunction upon the same grounds that a court of law would grant a prohibition propter triationis defectum (d). In these cases it must be
(a) Ante, p. 4.
(c) Abthorp v. Jennings, Bunb. 27. Blacket v. Finney, ib. 176. Salmon v. Rake, ib. n.
(d) Rotheram v. Fanshaw, 3 Atk. 628.
Ecclesiastical shown that the modus has been pleaded in the Ec
clesiastical court and denied there, for if admitted, the court may go on (a). Therefore, the mere suggestion of a modus, is not a ground to induce the court of equity to interfere (b).
Another instance of this species of interposition is founded upon the exclusive jurisdiction in cases of Trust: therefore wherever there is a trust, or any thing in the nature of a trust, a Court of Equity interposes, to restrain the prosecution of a suit in the Ecclesiastical court for payment of a legacy. This is done either where a cause is at the time depending in a court of equity, when an injunction is granted until the rights of the parties are determined at the hearing (c): or where a trustee is seeking payment, into his own hands, of a legacy left to his cestui que trust (d): or where a father is suing for a legacy left to an infant child (e), or a husband for a legacy to his wife. As in the last of these cases, the spiritual court has no means of compelling the husband to make an adequate settlement upon the wife, a practice has arisen (for which there is a very ancient precedent in Tothill (f)) according to which a court of equity, in order to secure the equitable rights of the wife, restrains the husband in the prosecution of the suit in the spiritual court (g).
(a) Rotheram v. Fanshaw, 3 Atk. 628.
(c) Parre v. Tipelady, Cary, 104. Stonehouse v. Stonehouse, i Dick. 98. Smith v. Kempson, 2 Dick. 769.
(d) Hill v. Turner, 1 Atk. 516.
A case has been referred to, in which there Ecclesiastical
Courts. having been mutual accounts between the parson and a parishioner, an injunction was granted to restrain the former from proceeding in the Ecclesiastical court for an account of tithes (a). It is said that Lord Ellesmere usually granted injunctions to stay suits upon the statute 2 Edward VI. to recover treble damages for not setting out tithes, but permitted the parties to sue otherwise as they would (6). Injunctions to the Spiritual Court were also extremely common in the Star Chamber (c).
Injunctions were in former times frequently granted Exchequer. by the court of Chancery to stay proceedings in the Exchequer(d). It is also said, that if after a bill filed in the Exchequer the defendant should exhibit another bill against the plaintiff in the court of Chancery; and it should appear upon a reference to the master, that the bill in the Exchequer was first filed, and that the bill in Chancery is for the same matter, the court
503. Anon. 1 Atk. 491. Jewson v. Moulson, 2 Atk. 419.
(a) Anon. 1 Mad. Ch. 129.
(c) Hudson's Tr. 2 Coll. Jurid. 196. In a copy of this treatise in Lincoln's Inn library (Coxe MSS.), it is ascribed to Judge Mallet; but the memorandum of Lord Keeper Finch, in a copy in the Harleian MSS. proves it to have been Hudson's. There are a great many MS. copies of it, both among the Harleian and Hargrave MSS.
(d) Catwallell v. Wynn, Toth. 113. Tresswell v. Guibon, ib. Davis v. Wakefield, 3 Ch. Rep. 1. Roberts v. Wilks, ib. 5. S. C. 2 Freem. 161. Earl of Newburgh v. Wren, 1 Vern. 220.
Court of Exchequer.
of Exchequer will grant an injunction to restrain proceeding upon the bill in Chancery (a).
There are several old cases, in which persons conceiving themselves to be privileged as being officers or accountants of the court of Exchequer, have obtained injunctions to restrain plaintiffs from proceeding against them in the court of Chancery (b). This practice, however, was very soon exploded, and the necessary comity between the two courts has long been established. Thus in the case of Coysgarne v. Jones (c), the cause, after a decree in the Exchequer, was heard, but only because that' decree had not been complete. In a recent case, the court of Exchequer having refused an injunction, a bill was filed in Chancery, and an application made for an injunction : Lord Eldon, after reprobating the proceeding, observed, that unless some precedent could be produced, the court would not interfere until the hearing; and that he must take the decision of the court of Exchequer to be right, and accordingly refused the application (d).
An injunction to stay proceedings in the Admiralty court, in a suit for the condemnation of a ship, has been refused, where it has appeared that the court of Admiralty, has had sufficient authority to investigate the circumstances (e). There are, how
(a) 1 Fowl. Ex. Pr. 270.
(b) East v. Bittenson, Cary, 96. Lewen v. Fawdesley, ib. 136. S.C. Choice, Cases in Chancery, 143. Vendall v. Harvey, Nelson, 19.
(c) Amb. 613.