Abbildungen der Seite

after an interlocutory judgment, to a final one (a). Effect of the

Common InAnd where an injunction having been obtained to

junction. restrain the defendant from proceeding on an award for payment of money, which had been made a rule of the court of King's Bench, the defendant applied to that court for an attachment for non-performance of the award, and obtained a rule to show cause : Lord Rosslyn was of opinion, that, by analogy to the practice, which, where an action has been actually commenced, permits a party to go on to trial and judgment, and only stays execution; the making the award, a rule of court, which had been done before the injunction, was to be considered as the commencement of the proceeding; and that the defendant might not only obtain a rule to show cause; but might even have gone on to make his rule absolute, without being guilty of a breach of the injunction, provided he did not execute the attachment (6). It is scarcely necessary to cite a case, to show that it is not a breach to show cause against a rule for a new trial (c); but where an injunction had been obtained to restrain the defendant from taking possession under a verdict which he had obtained in ejectment, and previous to the issuing the injunction, the costs of the action had been taxed, and a writ of possession executed: the plaintiff at law having afterwards procured an attachment for non-payment of the costs taxed, was considered by Lord Eldon as guilty of a breach of the injunction (d). But where, an injunc

(a) Morrice v. Hankey, 3 P. W. 146.
(6) Franco v. Franco, 2 Cox, 420.
(c) Whitmore v. Thornton, 3 Price, 231.
(d) Partington r. Booth, 3 Meriv. 148.

Effect of the tion having been obtained by an obligor in a joinit junction and several bond upon å bill, to which the co

obligor was not a party, execution was afterwards taken out upon a joint judgment; but the 'obligee gave notice to the sheriff of the injunction, and directed him not to take the plaintiff in equity, upon the question whether this was a breach of the injunction, Lord Eldon observed, that when the motion : was first 'made, he thought it a breach; that the writ of execution given to the sheriff without any ina structions, was, upon his receipt of it, a command of the law to take the defendant; and whether the sheriff did or did not take him, it would be a proceeding : if, however, a direction was given to the sheriff, not to proceed against the person of that defendant, with notice of the injunction restraining any proceedings against him; that defendant was named in the writ pro formá, and ex necessitate ; and it was in substance, a proceeding against the other defendant only, and not a breach of the injunc

tion (a).

Proceeding against bail or sheriff.

It is stated in a case in Vernon (6), that an injunction does not prevent an entry: this is, however, denied by Lord Alvanley (c), and is obviously erroneous.

It is now clearly settled, that any proceeding either against the Bail or the Sheriff, is a breach of the common injunction. This practice, which is irregular, originated with Lord Thurlow (d); be

(a) Chaplin v. Cooper, 1 V. & B. 16.
(6) Tilley o. Bridge, 2 Vern. 519.
(c) Curtis v. Curtis, 2 Bro. C. C. 631.
(d) 3 Meriv. 234.

Common In

fore that period the Bail or Sheriff were forced to Effect of the file a bill. In a case, indeed, where bail had been

junction. put in below, and after the common injunction, the defendant took an assignment of the bail bond, and was proceeding upon it; Lord Hardwicke, upon a motion to stay proceedings upon the bail bond, took a distinction, that where bail is put in above, an injunction to stay proceedings against the principal extends to proceedings against the Bail, because you cannot, in the case of bail above, proceed against the Bail till you have against the principal ; but he thought it otherwise where bail is only put in below, for there the plaintiff has his election to proceed on the bail bond: his Lordship, however, after some deliberation, granted the injunction (a). This distinction seems now disregarded, and any proceeding against the Bail is a breach of the common injunction (6).

It is the same as to proceeding against the Sheriff: thus after bail excepted to, ruling the Sheriff to bring in the body (c), or to pay over money levied by him (d), is a breach. It was also determined by Lord Thurlow, that where an injunction has been obtained after execution executed, it is a breach to call upon the Sheriff to pay over the money; though his Lordship added, that if the Sheriff voluntarily paid the money, he thought that it would not have been a breach (e). So accord

(a) Stone v. Tuffin, Amb. 32.

(6) Kennet v. Dalton, 1 Fowl. Ex. Pr. 230. Leonard v. Attwell, 17 Ves. 385. Chaplin v. Cooper, 1 V. & B. 19.

(c) Bullen v. Ovey, 16 Ves. 141.
(d) Bolt v. Stanway, 2 Anst. 556.
(e) Anon. cit. 3 Meriv. 234.

Effect of the ing to the modern practice, whereby the necessity Common Injunction.

of making the Sheriff a party is dispensed with ; Lord Eldon observed, that, if the goods were not yet out of the hands of the Sheriff, if he proceeded to sell without process, he would be ordered to pay the money into court; and as the act of the Sheriff cannot vary the rights of the parties, his Lordship thought, that if he voluntarily paid over the money, the party receiving it would be ordered to pay it into court (a).

There is a decision upon this subject in the Exchequer (b), where the doctrine was carried to a considerable extent; the authority of it has been strongly questioned by Lord Eldon, but it is to be observed, that it was in a case (c) where the point was not under consideration; and the modern doctrine, though irregular and unfounded in principle, was not recalled to his Lordship's recollection. In the principal case, the defendant had taken out execution, and the Sheriff had levied before the injunction issued: the Sheriff refused to pay over the money levied, and the defendant commenced an action against him for money had and received to his use. Upon a motion for an attachment against the defendant for this proceeding as a breach of the injunction, it was contended that the Sheriff was not a party, nor was any injunction prayed as to him; that the application was too late, for the Sheriff having levied, is bound immediately to pay over, and had received for the defendant. The court, however, said, that though the words of the

(a) Franklyn v. Thomas, 3 Mer. 234.
(6) Bolt v. Stanway, 2 Anstr. 556.
(c) Iveson v. Harris, 7 Ves, 257.

injunction were only against proceeding in the action Effect of the

Common Inagainst the plaintiff, yet the clear meaning of it was,

junction. to prevent the defendant's having any benefit of that suit, while the injunction subsisted. That the proper mode of compelling a Sheriff to pay over the money levied is by a rule against him : had that been done, it would clearly have been a breach of the injunction. The circuitous and improper mode of suing the Sheriffin a fresh action, could not, it was said, give the defendant a better claim: that a sheriff levying goods is not a stranger to the suit: the writ under which he levies, and the return to it, are parts of the suit, and any mode of compelling him to make snch return, or to complete the execution, was in sense and spirit a proceeding in the action and a violation of the injunction.

An injunction, however erroneously granted, is Commitment an order of court, and must be obeyed (a); if, there- for breach. fore, the defendant or his attorney are guilty of a breach of the injunction, it is a contempt which the court will punish. The practice formerly was, that upon affidavit of the service of the injunction, an attachment issued for the breach of it. If the defendant was arrested on the attachment, and entered his appearance with the register, interrogatories were filed and exhibited against him, to which he must answer on oath : if he denied the service, the other party might examine witnesses to prove it: if proved, the court committed him, and made him pay all costs and charges before he could be discharged (6).

(a) Woodward v. King, 2 Ch. Ca. 203. Marquis of Downshire v. Lady Sandys, 6 Ves. 109. Partington v. Booth, 3 Meriv. 149.

(6) Harr. Ch. Pr. 552.

« ZurückWeiter »