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No. XII.

ORDER ON CONFIRMING REPORT.

[Inter alia] His Lordship doth order that the said Master's report stand confirmed, and that the articles be entered into in order to the carrying the said proposals into execution as far as the nature and circumstances of the case will admit, with the approbation of the said Master. And it is further ordered, that the plaintiff be at liberty to marry the said Katherine Archer on the footing of the said proposals. Earl of Plymouth v. Lewis, L. C. 24th April, 1750. Reg. Lib. A. 1749. fol. 256. S. C. 2 Dick. 801.

No. XIII.

ORDER FOR LIBERTY TO TAKE INFANTS ABROAD. His Lordship doth order that the petitioner, as the father of the said infants, plaintiffs, be at liberty to remove the said infants, plaintiffs, with him to America aforesaid, or to such other parts and places beyond the seas, and out of the jurisdiction of this Court, in which he shall in the execution of his duty be ordered or find it necessary to reside, there to remain with the petitioner in case the petitioner shall so think fit; the petitioner by his said petition, undertaking to bring the said infants, plaintiffs or such of them as shall then be living, back with him, on his return to this country on the fulfilment of his mission in the petition mentioned, unless the petitioner shall in the mean time, from any unforeseen circumstance, deem it advisable to send them, or any of them back to this country. But the petitioner is half-yearly to transmit, properly vouched, to be laid before the Court, the plan of tuition and education for each of the said infants actually adopted and in practice at the time of such halfyearly return, and specifying particularly where and with whom they reside. Jackson v. Hankey, L. C. 15th May, 1823. Reg. Lib. A. 1822. fol. 1088. S. C. Jac. 265. note.

NOTE.

See Mountstuart v. Mountstuart, 6 Ves. 363.

DECREES AND ORDERS RESPECTING INJUNCTIONS.

No. I.

ORDER FOR INJUNCTION ON A DEDIMUS.

Forasmuch as this Court was this present day informed by Mr. K. being of the plaintiff's counsel, that the defendant, being served with process to appear to and answer the plaintiff's bill, hath appeared accordingly, but for delay hath craved a commission to answer in the country, and yet in the mean time prosecutes the plaintiff at law for for the matters in the plaintiff's bill complained of. It is thereupon ordered, that an injunction be awarded for stay of the said defendant's proceedings at law against the plaintiff, for and touching any of the matters here in question, until the said defendant shall perfectly answer the plaintiff's bill (1), and this Court take order to the contrary; but the said defendant is in the mean time at liberty to call for a plea and proceed to trial thereon, and for want of a plea to enter up judgment; but execution is hereby stayed. (2) Smith v. Sherlock, M. R. 4th Nov. 1746. Reg. Lib. B. 1746. fol. 30.

For like order. See Harr. 553.

Hand's Pract. 10.

For order for injunction on an attachment.

Hand's Pract. 11. Equity Draftsman, 586.

See Harr. 554.

For writ of injunction to stay proceedings at law. See Harr. 555.

For like writ in the Exchequer. See 1 Fowl. 248.

For docquet for an injunction on a dedimus. See Harr. 553.

For docquet for an injunction on an attachment. See Harr. 555. For writ of injunction in the Exchequer to stay proceedings in Chancery. See 1 Fowl. 308.

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For writ of injunction in the Exchequer to restrain proceedings in Spiritual Court. See 1 Fowl. 313.

For writ of injunction in the Exchequer to restrain proceedings in the Admiralty Court. See 1 Fowl. 315.

NOTES.

(1) The form of the common injunction is till answer and further order. See Vipan v. Mortlock, 2 Mer. 479.

So in the Exchequer. See 1 Fowl. 249.

Otherwise in the case of special injunction. See Injunction to stay Waste, No. XIV. Note (2), post.

(2) Effect of the Common Injunction in Chancery.

In Sidney v. Hetherington, 3 P. W. 146. note. the Lord Chancellor thought that by the terms of the writ, had there not been some resolutions to the contrary, the delivery of a declaration was not a breach of the injunction.

But in Mills v. Cobby, 1 Mer. 4. it is said by the Lord Chancellor that it is clearly settled, and not now to be questioned on the ground of any apparent inconsistency in the form, that in the case where proceedings at law are not yet commenced, the injunction prevents the delivery of the declaration. And see Earnshaw v. Thornhill, 18 Ves. 488.

v. Pearson, 10 Ves. 452.

Bullen v. Ovey, 16 Ves. 144.
Franco v. Franco, 2 Cox, 421.

Garlick

So where the injunction is obtained after outlawry, and consequently before declaration, the plaintiff at law cannot compel proclamations. Marsack v. Bailey, 2 S. & S. 577.

By the terms of the writ, the liberty to proceed seems to be confined to signing interlocutory judgment for want of a plea. Smith v. Sherlock, supra.

But where an action has been commenced, the plaintiff at law may, notwithstanding the terms of the injunction, proceed to final judgment, either upon verdict, or upon plea overruled, and execution only is stayed. See Morrice v. Hankey, 3 P. W. 146. Sidney v. Hetherington, supra. Franco v. Franco, supra. Garlick v. Pearson, Earnshaw v. Thornhill, supra. supra.

Leave will be given to proceed at law to affirm judgment, notwithstanding injunction. See Order for that purpose. Hand's Pract. 13. Equity Draftsman, 606.

So after an injunction to restrain proceedings upon an award made a rule of a court of law, the defendant may obtain a rule for an attach

ment for non-performance of the award, provided he does not execute the attachment. Franco v. Franco, 2 Cox, 420.

But he cannot proceed against the sheriff. See Bullen v. Ovey, 16 Ves. 141. Bolt v. Stanway, 2 Anstr. 556. Nor against the bail. Stone v. Tuffin, Ambl. 32.

Chaplin v. Cooper, 1 V. & B. 19.

Leonard v. Attwell, 17 Ves. 385.

Although he may against a co-obligor, if not a party to the suit. Chaplin v. Cooper, 1 V. & B. 16.

The common injunction may be extended to stay trial. See Order to stay Trial, No. II. post.

Injunction after Execution.

Where the injunction is not obtained until after execution, the form is the same. See Hawkshaw v. Parkins, 2 Swan. 549.

In that case the plaintiff at law cannot rule the sheriff to pay the money levied. Axe v. Clarke, 2 Dick. 549. Franklyn v. Thomas, 3 Mer. 234. And see Bolt v. Stanway, 2 Anstr. 556.

In Axe v. Clarke, supra, the Lord Chancellor said that it would have been different, had the sheriff paid the money voluntarily.

But in Franklyn v. Thomas, supra, the Lord Chancellor thought that in such a case the person receiving the money would be ordered to pay it into court. And in Hawkshaw v. Parkins, 2 Swan. 548. the Lord Chancellor said that subsequently to the case of Axe v. Clarke, the Court resolved, that if the money was paid over voluntarily, it would compel a return.

Nor can the plaintiff at law sue out an attachment for costs. Partington v. Booth, 3 Mer. 148.

Where in consequence of a demurrer having been put in by the defendant, which was afterwards overruled, the injunction was not obtained till after execution executed, the plaintiff was discharged on terms so as to prevent his setting up the execution as a discharge of the debt. Franklyn v. Thomas, 3 Mer. 225. And see the order, Ib. 236. As to the effect of such discharge. See Taylor v. Waters, 5 M & S. 103.

In the like case, the defendant at law having been discharged by the court of law upon payment of the money into that court, the defendants in equity were permitted, notwithstanding the injunction, to apply for payment of the money into the Court of Chancery. Hawkshaw v. Parkins, 2 Swan. 539.

Effect of Injunction in Exchequer.

In a town cause an injunction in the Exchequer stays all proceedings. See 1 Fowl. 259. And Nelthorpe v. Law, 13 Ves. 324.

In a country cause it has the same effect, except in the issuable terms, in which judgment and execution only are stayed, and the defendant may proceed to trial. See 1 Fowl. 260.

Generally, the question whether the cause is a country cause or a town cause depends upon the residence of the defendant. 1 Fowl.

260.

Where the defendant resides partly in London and partly in the country, it depends upon the place where the subject matter of the cause arises. 1 Fowl. 260.

But where the venue in the action is laid in London or Middlesex, it is a town cause. 1 Fowl. 250. 261.

In some cases the Court will stay the trial in the first instance. See Hill v. Price, 1 Fowl. 260. Bruce v. Le Mesurier, 1 Fowl. 298. Rix v. Zang, cited 16 Ves. 221.

For writ of injunction to stay trial. See 1 Fowl. 298.

After an injunction in the Exchequer, the defendant cannot obtain an order in Chancery for a commission to examine witnesses abroad. Novaes v. Dorrien, 4 Mad. 362.

But in some cases, leave may be obtained to proceed at law, notwithstanding the injunction. See 1 Fowl. 329. Eden on Injunctions, 76. Brooks v. Bourne, 1 Price, 72. Houlditch v. Nias, 8 Price. 689.

No. II.

ORDER EXTENDING COMMON INJUNCTION TO STAY TRIAL. (1)

Whereas by an order bearing date the 21st day of February 1815, it was ordered that an injunction should be awarded to stay the defendant's proceedings at law, for and touching any of the matters there in question, until &c. Upon opening of the matter this present day unto this Court, by Mr. M. of counsel for the plaintiff, it was alleged that it appears by the affidavit of the plaintiff (2) that if the defendant shall answer all the matters in the plaintiff's bill contained,

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