How obtained.

Exceptions to this rule.

followed at present; and it is laid down in all the books as an established rule, that an injunction to stay proceedings at law will not be granted except upon bill filed (a). Thus where a bill was filed by a seller for a specific performance, and an injunction was moved for to restrain the purchaser from proceeding at law to recover the deposit from the seller's attorney to whom it was paid, the motion was refused with costs, the attorney not being a party to the suit (b).

There are certain exceptions to this rule, some of which have been already noticed: as; where a decree has been made against an executor for the administration of assets, in which case the court will interpose by injunction at the application either of the executor, or of the heir, or of the plaintiff in the cause, to restrain a creditor who is no party to the suit from proceeding at law (c): where plaintiff having elected to proceed in equity, is restrained from proceeding in the cause at law, by the order which directs him to elect (d): where after a decree, the court, at the application of the defendant, restrains the plaintiff from proceeding at law for the same matter (e). By another exception, which will be considered more fully hereafter (f), the necessity which formerly existed for the bail or the

(a) Wy. Pr. Reg. 231. Harrison, Ch. Pr. 544. 1 Turn. Ch. Pr. 361.

(b) Brown v. Frost, Sugd. V. & P. 196.

(c) Ante, p. 31.

(d) Ante, p. 34.

(e) Ante, p. 36.
(f) Post, p. 73.

tained.

sheriff, if proceeded against by the plaintiff at law, How obto file a bill for an injunction, has been superseded, and the courts have considered such proceeding, as a breach of the injunction already granted.

There are also instances where causes have been Where the depending for other purposes, in which applications takes to file party underhave been made without bill filed, to stay proceedings a bill immediately. either at law or in the Ecclesiastical court; and, upon the party undertaking to file a bill immediately, the court has stayed proceedings, until such bill filed. Thus where there was a decree, which had been affirmed by the House of Lords, declaring that certain feefarm rents passed by a will, and directing the trustees to convey; the defendant, in order to obtain the opinion of a court of law, having afterwards distrained for non-payment of these rents, upon an application for an injunction, Lord King observed, that though he thought himself not warranted in granting an injunction without bill, yet he would not endure to see the justice of the court questioned, and accordingly made an order, to stay the proceedings at law till a bill was brought for an injunction (a). Upon this authority Lord Hardwicke, in the cause of the Duke of Buckingham v. Duchess of Buckingham (b), in which the Duchess, after a decree directing the trusts of the will of her late husband to be carried into effect, (which had been affirmed in the House of Lords,) applied to the spiritual court, and cited the executors to prove the will per testes, whereupon Mr. Sheffield moved for an injunction to stay her proceedings in the Ecclesiastical court, Lord Hard(a) Acherley v. Vernon, cit. 2 Eq. Ab. 527.

(6) 2 Eq. Ab. 526.

wicke said, he did not think himself authorized to grant an injunction, which could not be done without a bill for that purpose; but as there appeared reason to stay the Duchess's proceedings, he made the same order to that in Acherley v. Vernon. Lord Thurlow under similar circumstances refused an injunction (a), but it does not appear that the expedient of granting an injunction till bill filed was suggested to him. In that case there had been a decree for a specific performance of an agreement for a lease (b), which had been accordingly executed; the plaintiff, however, brought an action against the defendant to recover damages for the delay in performing the agreement. His Lordship thought that although the defendant would have been clearly entitled in a new suit, yet the decree having been wholly executed, the court would not make such an order in the original cause. In a recent case, however, in Ireland, where the precedents of Lord King and Lord Hardwicke were cited, this indulgence was carried to a considerable length. A bill for the specific performance of an agreement had been dismissed with costs, the plaintiff not having been able to make a good title. He then brought an action upon the agreement, and upon a motion made by the defendant to restrain him from proceeding at law, Lord Manners granted an injunction, upon the defendant's undertaking forthwith to file a bill (c).

It is also necessary that an injunction should be

(a) Ford v. Compton, 1 Cox. 296.

(b) 2 Bro. C. C. 32.

(c) Macnamara v. Arthur, 2 Ba. & Be. 349.

tained.

specifically prayed by the bill, as notwithstanding How obthe boasted efficacy of the prayer for general relief (a), it has been determined that an injunction cannot be obtained under it alone (b), because the defendant might make a different case by his answer, as against the general words, from what he would have done against the specific prayer for an injunction.

The 4 Ann. c. 16. s. 22. directs that no subpoena Subpœna. or other process for appearance shall issue till after a bill is filed, and though the contrary be sometimes done, yet it is irregular and at the hazard of costs (c). The statute, however, excepts the cases of bills for injunctions to stay waste, or to stay suits at law commenced; but the bill, must in these cases be on the file, before the return of the subpoena (d). In serving the subpoena, care must be taken to attend to the rules of the court, as an order for an injunction obtained for want of appearance, will be discharged, if the subpoena should not have been regularly served (e); and persons having privilege of peerage are entitled to a letter missive, without which the process will be ineffectual (ƒ).

(a) 2 Atk. 3. 141. 3 Atk. 131.-1 Eden 26.-2 Ves. 485.12 Ves. 48.-13 Ves. 114.

(b) Savory v. Dyer, Amb. 70. Davile v. Peacock, Barnard,

Ch. Rep. 27.

(c) 1 Turn. Ch. Pr. 78.

(d) Ib.

(e) Menzies v. Rodrigues, 1 Price, 92.

(f) Robinson v. Lord Rokeby, 8 Ves. 601. Lord Milsington v. Lord Portmore, 1 V. & B. 421.

E

How obtained.

served.

The subpoena may be served, at any time before twelve o'clock at night on the return day (a), even When to be though the defendant live at such a distance from town, as to make it impossible for him to appear in time (b). It may also be made returnable on the same day on which it is sealed, but in that case it must be served before the court rises (c), but it cannot be served on a Sunday (d).

In what

manner.

Where to be

served.

The writ is served, either by delivering the writ itself under seal to the defendant, or by showing it to him and delivering the label. If there are more defendants than one (three being the greatest number that can be contained in one subpoena), the body of the subpoena ought to be delivered to the last defendant, the others having been served with labels: the body of the writ under seal, must always be shewn to such defendants, as are served with labels (e).

Service by leaving the writ at the defendant's dwelling-house or lodging with some of the family will be deemed good service; and if he keep his house shut up, the writ may be left hanging on the door, or may be put into the house under the door, or within the window, and if it can be shown to have come to his hands it will be deemed good service(f). Send

(a) 1 Turn. Ch. Pr. 80. Hind, 83. Harrison, Ch. Pr. 103. (b) Nightingale v. Russell, 1 Fowl. Ex. Pr. 121.

(c) Harrison, Ch. Pr. 103.

(d) 29 Car. 2. c. 7. s. 6.

Mackreth v. Nicholson, 19 Ves. 367.

It is erroneously stated in Gilbert's For. Rom. 43, and Harrison,

103, that it may be served on a Sunday.

(e) Harrison, Ch. Pr. 103.

(f) Wy. Pr. Reg. 401. Harrison, Ch. Pr. 104.