How served. Service of the order. Service not necessary where the party hears the order pronounced, or is informed that it has been made. CHAPTER IV. Of the Extent and Effect of the Common Injunction, and in what Manner it may be extended to Stay Trial. THE Writ of Injunction is made out by the clerk in court, upon the order being left with him; and must be personally served upon the defendant, his solicitor, and attorney. It is served by showing it under seal (a), and delivering a copy to the party; the person serving it, is not bound to deliver the writ itself to be compared with the copy (b). Though the service ought to be personal, yet the court, as in the case of service of a subpoena, will, under circumstances, dispense with personal service (c); thus service of the order at the house which appeared to be the defendant's last place. of abode, was ordered to be good service, though the house was apparently shut up (d). It has also been repeatedly determined, that, where a party is in court, and hears the order pronounced, he is as much bound as if he had been actually served with the writ. Lord Hardwicke (e), (a) And in general, service of the copy of an order is not good without producing the original, unless the production be waived. Wallis v. Glynn, 19 Ves. 380. Coop. 282. (b) Woodward v. King, 2 Ch. Ca. 203. (c) Holgate v. Grantham, Cary, 82. (d) Pearce v. Crutchfield, 14 Ves. 206. (e) Anon. 3 Atk, 567. Vide also Skip v. Harwood, ib. 565. Common In observed, that there had been many instances, where Effect of the a defendant, or his attorney only (a), having been pre- junction. sent upon an order for an injunction, and having proceeded at law before it was sealed, that the court had considered this as a contempt, and committed them for it. This practice, notwithstanding some disapprobation of it from Lord Thurlow (b), has not only been followed, but has been extended; first, to the case of a party being in court during the motion, but retiring before the order was actually pronounced; and secondly, to a case where the defendant's knowledge that the order had been pronounced, proceeded solely from information (c): in one case (d), Lord Eldon observed, that if the party admitted that he believed the order was made, the principle was the same, as if his belief was formed, from information short of actual service; and that there would be authority enough to apply the practice, if the defendant would not swear, that he did not believe, the order was pronounced. It had been objected, that the solicitor might falsely represent that the order had been made: his Lordship, however, considered it a sufficient answer to that objection, that a solicitor intimating that fact without foundation, would be liable to be struck off the rolls, to make satisfaction to the injured party, and to an indictment (e). (a) Vide Bishop v. Jessop, Cary, 114. (b) Pengree v. Jonas, 2 Bro. C. C. 141. (c) Osborne (should be Hearne) v. Tenant, 14 Ves. 136. James v. Downes, 18 Ves. 322. Scott v. Becher, 4 Price, 352. (d) Kimpton v. Eve, 2 V. & B. 349. (e) See also the cases where personal service, as a foundation Effect of the the Exchequer. The Injunction issued for default of the defendant either in appearing or answering, is called the Common Injunction. The effect of this order is materially different in the Court of Chancery from what it is in the Court of Exchequer (a). According to the practice of the Exchequer, where Common In- the cause of action arises in London, or within five junction in miles of it, at whatever period of the cause at law it issues, the common injunction restrains the party from all further proceedings (b). It is the same in a country cause, where the bill is filed in Michaelmas or Easter terms; but in the two issuable terms, if the plaintiff at law has so far proceeded in his action, that he can compel a plea by entering up judgment for want of it, he may proceed to join issue; if not, the injunction restrains him from proceeding further in the action (c). Effect of the In the Court of Chancery, where a declaration Common In- has not been delivered, the injunction restrains all junction in Chancery. proceedings whatever; the principle being, that the court, in favour of personal liberty, will not permit the plaintiff at law, while under the imputation of laches for not putting in his answer, to take the person of his debtor immediately (d); but where the declaration has been delivered, the plaintiff at law for process of contempt, has been dispensed with, Rider v. Kidder, (a) Vide post, Appendix V. VI. VII. (c) Ibid. 218, 219. (d) 16 Ves. 143. may proceed to trial, the injunction then only staying Effect of the execution (a). Common Injunction. What acts This distinction arises from a construction which has been given to the following clause, which is always inserted at the end of the writ which issues breach of the in the Court of Chancery: "But nevertheless the said defendant is at liberty to call for a plea, and to proceed to trial thereon; and for want of a plea to enter up judgment, but execution is hereby stayed (b)." It has been contended, that by virtue of this proviso, the delivery of a declaration was no breach of the injunction; and Lord Macclesfield observed, that if it had not been for some resolutions to the contrary, he should have thought so, since by the very terms of the order, the plaintiff is at liberty to proceed to trial; and the delivery of the declaration, &c. is an incident, without which, there can be no trial (c). The construction, however, has always been, that it only applies to a person in a condition to demand a plea; and that if the action at law has not been commenced when the order for the injunction is made, the plaintiff at law, notwithstanding these words, is not at liberty to take any step, which will enable him to demand a plea (d). It has also been determined, that the words "for default of plea," mean for default of an issuable plea; and further, that as the plaintiff may, by the express terms, try an issue on the fact, by the same reason (a) Harr. Ch. Pr. 541. & Turn. Ch. Pr. 362. (b) Post, Appendix V. VI. (c) 3 P. W. 147. a. (d) Sidney v. Hetherington, 3 P. W. 147. n. 16 Ves. 141. Mills v. Cobby, 1 Meriv. 3. Bullen v. Ovey, amount to a Common Injunction. Common Injunction. Effect of the he may try an issue at law. Accordingly where a defendant at law had put in a frivolous plea, to which the defendant in equity had demurred, and obtained judgment; it was contended, that this was a breach of the injunction, it being only in one case, viz. "for default of plea (a)," that the defendant might enter up judgment; and here it was said, there was no want of a plea; Lord Macclesfield, however, was clearly of opinion that this was no contempt, since a frivolous plea is as no plea (b). The construction also given to the words "to enter up judgment" has been, that they apply to a final judgment: all that the court intends to restrain is Execution. The plaintiff may proceed so far, as to be able to take out execution, the instant that the injunction is dissolved; therefore after an interlocutory judgment, as by default, or on demurrer, the plaintiff at law may go on to ascertain his damages (c). Where the defendant in equity had brought an action against the plaintiff as executor, and on plene administravit pleaded, took judgment de bonis testatoris cum acciderint, and afterwards took out a scire facias in order to inquire after assets; it was said that the scire facias was in the nature of a new action after judgment; and that this was a breach of the injunction, being a proceeding after judgment: Lord King, however, held, that it was no breach, being only a continuation of the old action on the same record, and in the nature of a proceeding, (a) Morris v. Hankey, 3 P. W. 146. (b) Sidney v. Hetherington, 3 P. W. 147. n. |