terpose by an injunction and the appointment of a Special Injunctions. receiver, in a case where it was clear that a party had obtained an estate comprehending an advowson, by fraud (a). So where an advowson is the subject of a mortgage, a court of equity would probably restrain the mortgagee from presenting (b), upon the same principle that it compels the mortgagee to nominate such person as the mortgagor shall appoint (c), and if the suit be instituted within the statutable period (d) will disturb the presentation.

(a) 16 Ves. 70. Vide also, 2 Dick. 442.

(b) The author has not found an instance in which this has actually been done; it is stated, 2 Vern. 401. to have been done in Jory v. Cox, but this, as appears from Mr. Finch's extract from the register's book, is a mistake. Prec. Can. 71.

(c) Amhurst v. Dowling, 2 Vern. 401. Attorney General v. Hesketh, ib. 549. Jory v. Cox, Prec. Can. 71. Gally v. Selby, Com. Rep. 343. 1 Stra. 403. Croft v. Powell, Com. Rep. 609. Mackensie v. Robinson, 3 Atk. 559. Gubbins v. Creed, 2 Sch. & Lef. 218. The case of Dyer v. Lord Craven, 2 Dick. 662. is probably misreported. Whether it would be otherwise where the mortgage deed contains an express stipulation, that the mortgagee should present upon avoidance, is doubtful. Lord King is reported, in Gardiner v. Griffith, to have inclined to the opinion that the mortgagee might, in such a case, present; but the decision both in Chancery and afterwards in the House of Lords (at least according to Peere Williams, as the author has not been able to find any report of the case in the House of Lords), was founded on the circumstance of the bill having been brought seven months after institution. Lord Hardwicke, in Mackensie v. Robinson, seemed to be of opinion, that such a covenant would be void, as being a stipulation for something more than principal and in

terest.

(d) Gardner v. Griffiths, 2 P. W. 404. Boteler v. Allington, 3 Atk. 458. Vide also, Mutter v. Chanvel, 1 Meriv. 475.

Special Injunctions.

Executor wasting assets.

Injunction not granted to restrain debtors to an estate

paying to a pretended

executor.

If an executor or administrator either through misconduct (a), or insolvency (b), or bankruptcy (c), are bringing the property of the deceased into danger, an injunction will be granted to restrain them from getting in the assets, and a receiver will be appointed. This is a motion which is frequently granted before answer. Upon this principle, where a feme covert was executrix, and her husband was in the West Indies, she was restrained from getting in the assets, and a receiver was appointed, because, as the husband was out of the jurisdiction, if she had wasted the assets the plaintiff would have had no remedy (d). But the circumstance that an executor is poor and in mean circumstances, is not a sufficient ground for this application (e).

There is an early case before Lord Clarendon, in which it appears that an injunction was granted to restrain the debtors to a testator's estate from paying any money to a pretended executor until his title to the executorship had been settled by the Spiritual Court (f). This determination, however, (unless there were more circumstances than those which appear upon the report), is contrary to modern practice. As it is perfectly established that a debtor

(a) Cutlet v. Smith, Harrison's Ch. Pr. 543. Rogers v. Rogers, 1 Anst. 174. Middleton v. Dodswell, 13 Ves. 266. Harrison v. Cockerell, 3 Meriv. 1.

(b) Scott v. Becher, 4 Price, 346. Mansfield v. Shaw, 3 Mad. Rep. 100.

(e) Gladdon v. Stoneman, 1 Mad. Rep. 143. n.

(d) Taylor v. Allen, 2 Atk. 213.

(e) Hathornthwaite v. Russel, 2 Atk. 126. Anon. 12 Ves. 4. Howard v. Papera, 1 Mad. Rep. 142.

(f) Smallpiece v. Anguish, 1 Ch. Ca. 75.

to the estate cannot be made a party to a bill by a Special Injunctions. creditor or legatee, unless he is colluding with the executor, or some case of fraud or insolvency be Preservation proved against the executor (a).

Courts of equity assume a concurrent jurisdiction with the Ecclesiastical Courts in the preservation of property, pendente lite, and will accordingly restrain parties from receiving the property of the deceased, and appoint a receiver (b). This seems in the earlier cases to have been done with little difficulty (c); but as it was afterwards determined in the great case of Walker v. Woollaston, upon a writ of error from the Common Pleas, that an administrator pendente lite might maintain actions at law (d), a doubt arose whether a Court of Equity would entertain a suit for

(a) Newland v. Champion, 1 Ves. 105. Beckford v. Dorrington, cit. 6 Ves. 749. Franklyn v. Ferne, Barnard. Ch. Rep. 30. Elmslie v. M'Aulay, 3 Bro. C. C. 624. Utterson v. Mair, 4 Bro. C. C. 270. 2 Ves. jun. 95. Bowser v. Hughes, 1 Anst. 101. Doran v. SimpTroughton v. Binkes, 6 Ves. 572. Benfield v. Solomons, 9 Ves. 77.

son, 4 Ves. 651.

Rowley, ib. 749.

Alsager v.

Saxton v.

Davis, 18 Ves. 72. 1 Rose, 70. Burroughs v. Elton, 11 Ves. 29.
Tulk v. Houlditch, 1 V. & B. 248.

(b) The leading case upon this subject is a determination in the great cause of Powis v. Andrews, cit. 1 Atk. 286. Reported upon an appeal from an order, overruling a demurrer. 2 Bro. P. C. ed. Toml. 504. Vide also Morgan v. Harris, 2 Bro. C. C. 121. Brown v. Duddridge, cit. ib.

(c) Wright v. Bluck, 1 Vern. 106. Dulwich College v. Johnson, 2 Vern. 49. There are also two precedents in the time of Lord King, in one of which it is stated, that Lord Harcourt had frequently made these orders merely on certificate of bill filed. Molineaux v. Bird, Mose, 235. Villers v. Lady Osborn, ib. 308. They are both anterior to Walker v. Woolaston.

(d) 2 P. W. 576. Vide also, Wills v. Rich, 2 Atk. 285. Gallivan v. Evans, 1 Ba. & Be. 191.

of property pendente lite.

Special In- the preservation of the property, until the litigation junctions. in the Ecclesiastical Court had been determined. Accordingly Lord Hardwicke, in one case (a), which was afterwards followed by Lord Erskine (b), refused to interfere by the appointment of a receiver. It appears, however, that Lord Hardwicke himself had repeatedly recognised the existence of this jurisdiction (c), and that Lord Eldon had considered the application as almost of course (d). The doctrine, however, in consequence of this determination of Lord Erskine, received great consideration in several cases before Lord Eldon and Sir T. Plumer, by which it is now unquestionably settled, that a court of equity has the jurisdiction to grant an injunction and receiver while a suit is depending in the Ecclesiastical Court, although an administration, pendente lite, might be there obtained (e).

In what

cases a receiver has

This application will only be granted where a suit is actually depending in the Ecclesiastical Court, in the result of which the plaintiff is interested (ƒ).

We may here notice a practice, in a great measure connected with the preceding and the subbeen granted sequent heads, and which has of late been frequently adopted, viz. the appointment, upon mo

of real

estates.

Taylor v. Allen, 2 Atk. Smith v. Aykwell, 3 Atk.

(a) Knight v. Duplessis, 1 Ves. 324. (b) Richards v. Chave, 12 Ves. 462. (c) Phipps v. Steward, 1 Atk. 285. 213. Montgomery v. Clark, ib. 379. 566. Barnsley v. Powell, 1 Ves. 290. (d) King v. King, 6 Ves. 172. Walker v. Walker, 2 V. & B. 91 n. Liddell v. Liddell, cit. 12 Ves. 464.

(e) Atkinson v. Henshaw, 2 V. & B. 85. Ball v. Oliver, ib. 96. Vide also, Edmunds v. Bird, 1 V. & B. 542.

(f) Jones v. Jones, 3 Meriv. 174.

tion, of a receiver of the rents and profits of real Special Injunctions.

estate.

demand.

The ordinary case in which this application is Upon an granted, is that alluded to by Lord Eldon in the equitable late case of Davis v. the Duke of Marlborough (a), viz. where an equitable creditor, with an estate for securing his debt, applies to a court of equity to give him execution: where such a case is clearly shown, said his lordship, the court will appoint a receiver upon motion (b). Thus where the purchaser of an estate, subject to an equitable rent-charge, refused to pay it (c); or where, upon a creditor's bill for sale of real estates, the heir at law being an infant, the parol demurred, a receiver was appointed (d). Where a bill was filed by a creditor on behalf of himself and other creditors, and a receiver was appointed, Lord Redesdale held, that the receiver should not be discharged upon the consent of the plaintiff, against the consent of an incumbrancer, who was a party; and his lordship seemed to be of opinion, that even where an incumbrancer was not a party, or had proceeded in the suit, and had been obliged to file a new bill, yet that the court would not discharge the receiver, and would direct that such bill should be taken as filed at the time of the former (e).

The court, it is said, interposes with reluctance to

(a) 1 Wils. Ch. Rep. 151. 154.

(b) Ibid. That it has been granted to an equitable mortgagee, vide Curling v. Lord Leycester, 2 Mad. Ch. 234. second edition. (c) Pritchard v. Fleetwood, 1 Meriv. 54.

(d) Sweet v. Partridge, 1 Cox, 433. 2 Dick. 696. Docker v. Horner, cit. ib.

(e) Largan v. Bowen, 1 Sch. & Lef. 296.