« ZurückWeiter »
the act of the creditor; and particularly as the cre- In what cases ditor has put it out of his power, to have his remedy
granted. against the principal. A similar doctrine holds with regard to bills of exchange, the parties upon which are chargeable in different order, the acceptor being first liable; the indorsers in the order in which they stand on the bill. The holder may, at his election, sue all or any of the parties to the bill; he has the sole dominion over it, and may make what arrangements he pleases with any of them, but he does it at his peril; for if he thereby alter the situation of any other person on the bill to the prejudice of that person, he cannot afterwards proceed against him therefore, though he may give time to or discharge his immediate indorser (which will not discharge another liable to him prior in point of order), yet he cannot give time to or discharge the drawer or | acceptor, and afterwards proceed against an in
dorser (a). It has now been determined that the acceptor of an accommodation bill is not in the situation of a surety for the payment by the drawer, and consequently not discharged by time being given to the drawer. He is liable in all circumstances, and nothing can discharge him but payment or release (b). d It is an established rule, that an injunction, or No injuncany order in the nature of an injunction, will not be tion in crimigranted to restrain proceedings in a criminal mat(d) Tindal v. Brown, 1 T. R. 167. Walwyn v. St. Quintin, 1 B. & P. 652. Smith v. Knox, 1 Esp. N. P. C. 46. English v. Darley, ib. 49. 2 B. & P. 61. Gould o. Robson, 8 East, 576. Clarke o. Devlin, 3 B. & P. 263. Ex parte Gifford, 6 Ves. 802. Withall 0. Masterman, 2 Campb. 179.
(6) Fentum v. Pocock, 5 Taunt. 192. overruling Laxton v. Peat, 2 Campb. 185. and Collott v. Haigh, 3 Campb. 281.
In what cases ter (a). Accordingly, in the case of Lord Montague granted.
v. Dudman (6), Lord Hardwicke allowed a demurrer to a bill for an injunction to stay proceedings on a mandamus, issued to compel a lord of a manor to hold a court : “ the court,” he said, “has no jurisdiction to grant an injunction to stay proceedings on a mandamus, nor to an indictment, nor to an
information, nor to a writ of prohibition.” Except But where an indictment is preferred by persons where a plaintiff in
who are themselves plaintiffs in equity, they are subequity pre- ject to control by order personally affecting them, fers indict.
although defendants are not so (c); and therefore in the case of the Mayor of York v. Pilkington(d), where a bill and cross bill were depending in order to establish a right of fishing, and the plaintiffs in the first cause had indicted the agents of the defendants for a breach of the peace in fishing: Lord Hardwicke made an order to restrain the plaintiffs from proceeding till the hearing of the cause and further
(a) Holderstaffe v. Saunders, 6 Mod. 12.
(e) There is an old case in Moor, where an injunction was granted to restrain the defendant from praying restitution upon an indictment for a forcible entry, Hendy v. Owen, Mo. 820. pl. 1108. cit. 14 Vin. Ab. 422. Lord Hardwicke, however, in alluding to it, has observed, that he would not go so far, unless the subject were mixed up with civil proceedings in equity, 2 Ves. 399.; and it may be collected from other observations, 2 Atk. 303. that this case would be subject to the general rule, except where the person preferring the indictment was also plaintiff in equity. There are also several old cases in Tothill, where the Court asserted its right to the
There is also no jurisdiction in equity by injunction How 06
tained. to stay the process of a court of law upon an Award which has been made a rule of court, under the st. Award 9 & 10 W. 3. c. 15. Lord Eldon, upon a motion to under the st. dissolve an injunction which had been obtained in 3. c. 15. a case of this nature, observed, that he had not found by his own research into authority, or from the information of others, any instance in which a court of equity had actually interposed by injunction to stay the process of a court of law, in which the award was made a rule of court(a): that itwas difficult to see how this could be under the first section of the act which declares, that process shall not be stopped or delayed in its execution by any order, &c. of any other court either of law or equity, unless it shall be made to appear on oath to such court, &c. That if upon bill filed for an injunction in the ordinary way, upon non-appearance, the plaintiff could have the injunction by the order of the court, the effect would be, to stop the process in its execution, though it were not shown in any way upon oath that there had been misbehaviour, corruption, &c.(6).
cognizance of perjury committed before itselfbut this was probably in all the cases, as in Miller v. Girdlers' Company, Toth. 114, only by injunctions against actions for perjury. Siderson v. Eastcourt; Bullen v. Bullen; Freeborne v. Leasure ; Halse v. Browne, ib. 156, 157. In one instance, £40 costs were given for perjury. Mound v. Culme, ib. 157.
(a) There is, however, a case in the Exchequer, which seems to have been overlooked, where, upon a bill filed to relieve against an award which had been made a rule of the King's Bench, under the statute, the plaintiff obtained an injunction. Simmons v. Mullins, Bunb. 182.
(6) Gwinitt v. Bannister, 14 Ves. 530.
stage of the
Injunctions to stay proceedings at law, are granted tained.
either before or after the commencement of the acAt what
tion; or to stay trial; or after verdict to stay judgment; proceedings after judgment to stay execution, or proceedings unat law an in- der an execution ;—if execution has taken place, to junction may be obtained. stay the money in the hands of the Sheriff; or if
part only of a judgment debt has been levied by a fieri facias to restrain the súing out of a capias ad satisfaciendum (a). The courts are, indeed, unwilling to interfere where it appears that the plaintiff has lain by till after a trial has taken place (6); but, in general, if it is necessary for the obtaining a fair decision, a bill will be sustained for a discovery and an injunction in the mean time, though after a verdict at law (c).
(a) 1 Mad. Ch. 109.
(c) Withall v. Lilley. For. Ex. Rep. 94. Field v. Beaumont, 1 Swanst. 204. The observations of the Chancellor in the latter case seem, in effect, to overrule the decision of the Court of Exchequer, in Whitmore v. Thornton, 3 Price, 231. The decision in Snowball v. Vicaris, Bunb. 175, seems to be wrong, as the evidence might have been produced upon the trial.
In what Manner INJUNCTIONs to stay Proceedings at
Law are obtained.
It is directed both by Lord Bacon's and Lord Not granted
without bill. Clarendon's orders, that no injunction for stay of suit should be granted or revived upon Petition (a). This seems to have been understood to be the
practice at a much earlier period : the granting injunctions, without bill previously filed, having been one of the articles of impeachment against Cardinal Wolsey (6). There are indeed instances, subsequent to these orders, of injunctions granted in causes which had abated and not been revived (c); there is also a case, where a manor with an advowson appendant had been mortgaged, and the church becoming vacant pending a suit to foreclose, in which the court granted an injunction to stay proceedings in a quare impedit brought by the mortgagee, though the defendant, the mortgagor, had not filed a bill (d). These, however, are precedents which would not be
(a) Beames's Orders. 12. 35. 214. (6) 4 Inst. 92. (c) Duke of Hamilton, v. Earl of Macclesfield, 1 Eq. Ab. 285. Robinson v. Lord Wharton, ib.
(d) Amhurst v. Dawling, 2 Vern. 401. The case of Jory v. Cox is cited in Vernon as another instance, but it appears from the entry in the register's book, which is stated by Mr. Finch, Prec. Can. 371. that this is a mistake.