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In what cases
In like manner, after a decree the court will, granted.
at the application of the defendant, restrain the After de
plaintiff from proceeding at law for the same matcree plaintiff in equity re- ter, even without bill filed by the defendant for strained
that purpose, it being a contempt to proceed at ceeding at law, after the subject of the cause has been at
tached in a court of equity(a). Exception The case of a mortgagee is an exception to this in the case
rule, as he has a right to proceed on his mortgage gagee. in equity and upon his bond at law at the same
time. But as the mortgagee can have nothing, but
The money was ordered into court until the executor could find the heir, and the cause remained some years in court, until it was at last thought worth
he did not mean to make it a matter of a horse race, who shall be first in Westminster Hall, and accordingly afterwards abolished it by his 13th ordinance.
(a) Mocher v. Reed, 1 Ba. & Be. 318. Wilson v. Weatherherd, 2 Meriv. 406. Vide also Bell v. O'Reilly, 2 Sch. & Lef. 430.
(6) Schoole v. Sall, 1 Sch. & Lef. 176.
while, to get an act of parliament to revest the In what cases
granted. estate on an allegation, that the heir could not be found; the crown giving its consent.
A question has frequently been raised, whether Whether the the court would restrain the mortgagee from suing restrain a at law upon the bond after foreclosure, where the mortgagee mortgaged premises have not been sufficient to pay on the bond the debt: and it has been insisted, that the mort- after foregagee, by foreclosing and taking the pledge, has made his election, and relinquished his right to the personal remedy. The better opinion seems to be, that, though this proceeding opens the foreclosure(a), yet the court will not restrain the mortgagee from proceeding for the difference (6). This doctrine causes great difficulty, where the mortgaged estate has been sold and conveyed away. Lord Thurlow, however, in Tooke v. Hartley, (according to a MS. note of Sir S. Romilly, which was confirmed by Lord Eldon's (c) recollection of what passed at the time,) expressly stated his opinion, that, whether the estate had been sold by the mortgagee to a stranger, or had remained in the possession of the mortgagee, there was no distinction; that the mortgagee might equally proceed upon the personal security, and recover the difference. The point afterwards arose in the case of Perry v. Barker (d), where, after a foreclosure and sale, the mortgagee brought an action for the difference, Lord Eldon, after re
(a) Dashwood v. Blythway, 1 Eq. Ab. 317.
(6) Aylet v. Hill, 2 Dick. 551. Tooke v. Hartley, 2 Bro. C.C. 125. 2 Dick. 785.
(c) 8 Ves. 531. (d) 8 Ves. 527.
In what cases marking upon the inconsistency of admitting that granted.
the foreclosure was opened by bringing the action, and that the action might be for the remainder of the money, yet in consequence of the opinion of Lord Thurlow, and as the case had never been expressly decided, granted an injunction, extending it to stay trial, the plaintiff paying the money into court. The cause afterwards came on before Lord Erskine (a), who was of opinion that as the action opened the foreclosure, the mortgagee ought to be allowed time to get back the estate and tender a re-conveyance, and that the mortgagor was entitled to redeem ; but as the mortgagee had taken possession a considerable time before, and the balance was inconsiderable, a perpetual injunc
tion was decreed. Marshalling Where a creditor has his debt secured upon two securities.
funds, and another only upon one fund, the latter has a right to restrain the former from proceeding against that fund, which is alone liable to his debt, and to compel him to resort to the other fund (b). This doctrine was much discussed in the cases respecting the estates of the American loyalists (c), which being confiscated subject to their debts, it was contended that a creditor ought to be restrained
(a) 13 Ves. 198.
(6) Lanoy v. Duke of Athol, 2 Atk. 446. Aldrich v. Cooper, 8 Ves. 388.
(c) Wright v. Nutt, 1 H. B. 136. 3 Bro. C. C. 326. Kempe v. Antill, 2 Bro. C. C. 11. Peters v. Erving, 3 Bro. C. C. 52. Folliot v. Ogden, 1 H. B. 123. and in error, 3 T. R. 726. and afterwards in the House of Lords, 4 Bro. P.C. Ed. Toml, 111. Dudley v. Folliott, ib. 584.
from pursuing the debtor personally here, till he had In what cases applied to make that property available to the pay
granted. ment of the debt. In several of the cases upon the subject, Lord Thurlow, Lord Kenyon, and Lord Rosslyn expressed decided opinions in favour of the relief so prayed, upon the principle, that if it appeared, that there was in the hands of the creditor, either possession of the estate in fact, or the clear means of effecting that possession, he ought to be called on so to do; or at least the court should interpose, the creditor not having the power, of assigning to the debtor, those means, which he had of affecting the property. In the last of these cases the bill was dismissed upon the particular circumstances, as it did not appear, that the creditor had the means of making his demand effectual, against the fund arising from confiscation (a); Lord Eldon, however, in a most luminous judgment, expressed his dissent from the principles of these opinions; his Lordship thought, that, as it could not be contended, that under such circumstances, the personal liability of the debtor is taken away, so it could not be law, that the remedies resulting out of that liability should be restrained by confining the remedies to particular funds, or by confining them altogether as to the person, till the creditor had recourse, not to all the funds of the debtor, but to some of his funds, which funds in the original constitution of the debt, and the transaction forming the relation of debtor and creditor, the debtor did not propose, nor the creditor receive, as the funds to be
(a) Wright v. Simpson, 6 Ves. 714.
In what cases charged by the contract : that considering it as a granted.
pledge, if the effect of the contract was, that he should have all the remedies belonging to the nature of a pledge, and also personal responsibility, it was questionable whether the revolution would have operated, to drive the creditor to the pledge, and compel him to give up the other remedy at the instance of the debtor ; but that the difficulty was much enhanced, when the pledge was not given to the creditor by the contract, but thrown to him by an act not his own.
We may here also notice the circumstances by which sureties may be discharged from their liabilities, and become entitled to the assistance of a court of equity in restraining the creditor from proceeding against them. It is well settled that wherever the creditor by virtue of some agreement (not by merely remaining inactive) gives time to the principal debtor, he thereby discharges the surety (a). It is immaterial for this purpose, whether the surety has by such agreement sustained any actual damage ; for even if it be manifestly for his benefit, he will, nevertheless, be discharged; it being sufficient that his right to force the principal to bring the question to an immediate determination, by which he may be discharged from his liability, has been suspended by
(a) Nisbet v. Smith, 2 Bro. C. C. 579. Law v. East India Company, 4 Ves. 824. Ex par Gifford, 6 Ves. 805. Beaumont v. Boultbee, 18 Ves. 20. Bank of Ireland v. Beresford, 6 Dow, 283. Devaynes v. Noble, 1 Meriv. 530. (Sleech's case.) Bowmaker o. Moore, 3 Price, 214. Samuel v. Howarth, 3 Meriv. 272. Eyre v. Bartrop, 2 Mad. Rep. 221.