to compel execution of the sentence of the Court ; see Jarvis v. Chandler,
T. & R. 319, in which case Lord Eldon observed, that his judgment proceeded
upon the notion, that the proceedings in the Admiralty Court were perfectly
right ; that the question was, whether it was not the same special case as if
*there had been a trial at law, and a verdict obtained to be affected proy-i
in equity by subsequent discovery.

But where a court of admiralty has full power and jurisdiction to examine
a matter, equity will not interfere. Thus, in Anon., 3 Atk. 350, the owners
of two privateers seized upon a ship called the " Diligence," as lawful prize,
upon its appearing by her captain's papers that she had carried provisions to
the enemy. They afterwards released him, giving him leave, in consequence
of the weather being stormy, to go to Rotterdam, upon his signing a note, in
which he acknowledged that they had very justly confiscated his cargo. They,



172 INJUNCTIONS AGAINST PROCEEDING AT LAW.



however, captured the " Diligence" a second time, whereupon the captain
brought a bill to stay a suit depending in the Admiralty Court, suggesting
that some of the papers were lost, and that if the note should be produced
which he had been obliged to give, he would be cast in the suit. Lord Hard-
wicke, however, refused the injunction ; for, he said, if he were to grant it
upon such pretences, the Acts of Parliament in relation to prizes would be
entirely defeated, and that the Court of Admiralty could, if it were found that
the note was signed owing to duress and imprisonment, by their own authority
suppress it.

Statutory jurisdiction under the Jlerchants' Shipping Act. — Under the
514th section of the Merchants' Shipping Act, 1854, (17 & 18 Vict. c. 104,)
jurisdiction is given to the court of chancery in a suit instituted by a ship-
owner to determine the amount of his liability in respect of the losses there
mentioned, to have such amount rateably distributed amongst the several
claimants, and to stop actions and suits pending in any other Court in rela-
tion to the same subject-matter.

In an application to the Court, under the 514th section, the owner must
aver that he has incurred some liability : Hill v. Audus, 1 K. & J. 263. It
has also been decided that the court of chancery has jurisdiction, notwith-
standing the circumstance that an adverse claimant has obtained a definitive
sentence or judgment of the Court of Admiralty condemning the ship ; and
the utmost to which the latter is entitled, under such a judgment, in respect,
of the loss he has sustained, is to share rateably with the other claimants in
the value of the ship and freight, {Leicester v. Logan, 3 K. & J. 44G ;) but
the Court has no control over the ship itself, and cannot prevent the party
who has obtained such a judgment from proceeding to a sale of the ship, and
retaining out of the proceeds such costs as he may be entitled to retain under
the order of the Admiralty Court. (lb.) The ship-owner, however, is entitled
r*5281 to an i n J unct i° n > restraining *the party who has obtained such a judg-
ment from proceeding further in the court of admiralty. lb.

Where there is no adverse litigation amongst the claimants themselves, nor
any other special circumstance occasioning an increase of costs, and over which
the plaintiff has no control, the plaintiff, as the party eased by the proceedings,
must pay the costs of all the claimants whose claims are established, including
the costs of actions at law commenced by any of such claimants, but stayed
by injunction in the suit : The African Steamship Company v. Sicanr.y, 2
K. & J. 660 : see also Dobree v. Schroder, 2 My. & Cr. 489.

Injunction to restrain proceedings in the Lord Mayor's Court. — Upon a
proper case being made, the court of equity will restrain proceedings in the
Lord Mayor's Court : Mildred v. Neate, 1 Dick. 279 ; Barker v. Goodnir,
11 Ves. 78 ; Fumival v. Bogle, 4 Russ. 142 ; Sieveking v. Behrens, 2 My. &
Cr. 581 ; Cottesicorth v. Stephens, 4 Hare, 185.

Injunction to restrain proceedings in Courts out of the jurisdiction. — A court
of equity will also restrain a person within its jurisdiction from taking pro-
ceedings in courts out of its jurisdiction, as in foreign countries properly so



EARL OF OXFORD'S CASE. 173

called, our colonies, or Ireland or Scotland. It interferes, however, not upon
any pretension to control or overrule the decisions of such Courts, or to
examine judicial and administrative acts abroad, but on the circumstance of
the party on whom the order is made being within the power of the Court.
" Soon after the Restoration," says Lord Brougham, " and when this, like
every other branch of the Court's jurisdiction, was, if not in its infancy, at
least far from that maturity which it attained under the illustrious series of
chancellors, the Nottinghams and Macclesfields, — the parents of equity, — the
point received a good deal of consideration in a case which came before Lord
Clarendon, and which is reported shortly in Freeman's Reports, and somewhat
more fully in Chancery Cases, under the name of Love v. Baker, (2 Freem.
125 ; 1 Ch. Ca. 67.) In Love v. Baker it appears that one only of several
parties who had begun proceedings in the Court of Leghorn was resident
within the jurisdiction here, and the Court allowed the subpoena to be served
on him, and that this should be good service on the rest. So far there seems
to have been very little scruple in extending the jurisdiction. Lord Clarendon
refused the injunction to restrain those proceedings at Leghorn, after advising
with the other judges ; but the report adds, ' sed quaere, for all the bar was of
another opinion ;' and it is said, *that when the argument against r^rpq-i
issuing it was used, that this Court had no authority to bind a foreign
Court, the answer was given, that the jurisdiction was not directed to the
foreign Court, but to the party within the jurisdiction here, — a very sound
answer, as it appears to me ; for the same argument might apply to a Court
within this country, which no order of this Court ever affects to bind, our
orders being only pointed at the parties, to restrain them from proceeding.
Accordingly, this case of Love v. Baker, has not been recognized or followed
in later times :" Lord Portarlington v. Soulby, 3 My. & K. 106. And see
Wharton v. May, 5 Ves. 71 ; Beauchamp v. Marquis Huntley, Jac. 546 ;
Campbell v. Houlditch, cited 3 My. & K. 108 ; Bushby v. Munday, 5 Madd.
297 ; Kennedy v. Earl Cassillis, 2 Swanst. 313 ; Bunbury v. Bunbury, 2
Beav. 173 ; The Marquis of Bredalbane v. The Marquis of Chandos, 2
My. & Cr. 711.

The fact also of a foreigner having property in this country enables the Court
of Chancery to make effectual an injunction issued against him : The Carron
Iron Company v. Maclaren, 5 H. L. Cas. 416.

Where pending a litigation here, in which complete relief may be had, a
party to the suit institutes proceedings abroad, the Court of Chancery in
general considers that act as a vexatious harrassing of the opposite party, and
restrains the foreign proceedings : Per Lord Ci'anworth, C, 5 H. L. Cas. 437,
And see Harrison v. Gurney, 2 J. & W. 563 ; Bee/ford v. Kemble, 1 S. &
S. 7 ; Wedderburn v. Wedderburn, 4 My. & Cr. 585. Upon the same principle,
where a creditor came in under a decree in Chancery uuder an administration
suit, and yet proceeded in an action in Scotland, which he had commenced in
ignorance of the decree, Sir L. Shadwell, V. C, enjoined the proceedings in
Scotland with costs, and his order was affirmed by Lord Cottenham, C. ; with



174 INJUNCTIONS AGAINST PROCEEDING AT LAW.



costs : Graham v. Maxwell, 1 Mac. & G. 71. And if a creditor is compelled
to come in under a suit here, the same principle applies : Per Lord St. Leon-
ards, C, 5 H. L. Cas. 455.

In the case of Beauchamp v. Lord Huntley, Jac. 546, where a creditor,
who had a specific charge upon a part of the testator's real estates, came in
under a decree in a general administration suit, and then claimed to prove in
a creditor's suit, which he had instituted in Ireland, Lord Eldon restrained
him from proceeding with the latter suit, and made him pay the costs. <

Even though no decree has been obtained in this country, yet if a suit
instituted abroad appears ill calculated to answer the ends of justice, the Court
of Chancery has restrained the foreign action, ^imposing, however,
L * terms which it has considered reasonable for protecting the party who
was suin<* abroad : Per Lord Cranworth, C, 5 H. L. Cas. 438 ; and see Bushby
v. Munday, 5 Madd. 297.

Even when there is no question as to the foreign litigation being or not being
necessary, or being or not being likely to be so effectual as litigation in this
country, still if a person within the jurisdiction of the Court of Chancery is
instituting proceedings in a foreign court, the instituting of which is contrary
to good conscience, the Court will, on a bill filed here, restrain the prosecution
of such foreign suit just as if it had been a suit in this country. Thus in
Lord Portarlington v. Soulby, 3 My. & K. 104, an injunction to restrain the
defendants from suing in Ireland upon a bill of exchange given by the plain-
tiff for a gambling debt was, under the circumstances, continued by Lord
Brougham. " As to the argument," observed his Lordship, " that the courts
of equity in Ireland can, if applied to, restrain the action, the same considera-
tion would prevent an injunction from ever issuing to stay proceedings in this
country ; for it might be said that the Court of Exchequer has the power of
restraining, and therefore there needs no interposition of the Court of Chan-
cery. It suffices to say that the court in which the action is brought is a court
of common law, and has no jurisdiction as such to stop the proceeding upon
the ground now set forth."

But where the matter may be more conveniently litigated in the foreign
court, equity will not interfere. Thus, in Jones v. Geddes, 1 Ph. 725, an
injunction granted on a suggestion of fraud to restrain a party resident in Eng-
land from prosecuting a suit in the Court of Sessions in Scotland) to enforce
a legal security against land situate in that country, was, on appeal, dissolved,
on the ground, that, although the remedy afforded in equity in cases of fraud
was more effectual and complete than in the Scotch Court; the question be-
tween the parties in the case might, upon the whole, be more conveniently
litigated, and with a more conclusive result there.

When a foreigner seeks no assistance from the courts of this country, it will
require a very strong case to induce the Court of Chancery to restrain a for-
eigner domiciled in another country, from proceeding to obtain payment of
debts according to the law of that country. See Carron Iron Company v.
Maclaren, 5 H. L. Cas. 416, reversing S. C, 16 Beav. 279; and see Stainton



earl of Oxford's case. 175



V. The Carron Company, 18 Beav. 146 j 21 Beav. 152, 500 j Maclaren v.
Stainton, 26 L. J. N. S. (Ch.) 332.

Before, however, the Court of Chancery interposes upon an interlocutory
application to stay *proceedings in a suit by reason of a decree or p^jn
judgment in a foreign country, it must be satisfied that the foreign
decree or judgment does justice and covers the whole subject of the suit. See
Ostett v. Le Page, 2 De Gr. Mac. & G-. 892; Kennedy v. CassiUis, 3 Swanst.
313.

The result of the authorities is, that if the circumstances are such as would
make it the duty of the Court to restrain a party from instituting proceedings
in this country, they will also warrant it in restraining proceedings in a foreign
court. But though the authorities will justify such a course, yet they will
not, it seems, make it the duty of the Court so to act, if from any cause it
appears likely to be more conducive to substantial justice that the foreign pro-
ceedings should take their own course : Per Lord Cranworth, C, 5 H. L. Cas.
439.

The courts of equity cannot interfere where relief is sought in consequence
of errors and irregularities in the decree of a colonial equitable court; and an
appeal lies from that Court to the appellate jurisdiction in this kingdom : Hen-
derson v. Henderson, 3 Hare, 100 ; but where such proceedings may have
taken place in a foreign court, from which there is no appeal to any superior
jurisdiction which a court of equity in this country could regard as certain to
administer justice in the case, the result may be different: 3 Hare, 118.

Whether a plaintiff can sue at law and in equity for the same thing. ~\ —
"Where a party is suing in another court, and in equity for the same thing,
and for the same purpose, he will be put to his election in which court he
will proceed ; and if he elects to sue in equity, he will be restrained from pro-
ceeding in the other court: Vaughan Y.Welsh, Mos. 210; Anon., Mos. 304;
31oclier'\. Reed, 1 Ball & B. 318, 319, 320; Pieters v. Thompson, Gr. Coop.
294; Gedye v. Duke of Montrose, 5 W. B. 537. And if a plea of proceed-
ings in another court of competent jurisdiction is put in, it must show not only
that the same issue'was joined as in the suit in equity, but that the subject-
matter is the same, and that the proceedings in the other court were taken for
the same purpose : Behrens v. Sieveking, 2 My. & Cr. 602. If, after decree, a
party proceeds in any other court for the same purpose, whether the proceed-
ings are taken in this or any other country, he will be restrained by the de-
fendant's application, without filing a bill, as it is a contempt of Court : Jack-
son v. Leaf 1 J. & W. 229, 232 ; Mocher v. Reed, 1 Ball & B. 318 ; Clarke
v. Pari of Ormonde, Jac. 546 ; Wilson v. Wetherherd, 2 Mer. 406 ; Harrison
v. Gumey, 2 J. & W. 563 ; Booth v. Leycester, 1 Kee. 579 ; 3 My. & Cr.
459 ; Boulter v. Boulter, 2 Beav. 196, n. ; and see Bell v. O'Reilly, 2 S. &
L. 430; *Molyneux v. Scott, 3 Ir. Ch. Bep. 291, 301. If, therefore, ~^p.
any proceedings in another court are necessary, the plaintiff should L
first obtain leave to take them from the court ; Weclderbum v. Weddcrbum, 4
My. & Cr. 585 ; S. C, 2 Beav. 208 ; Royle v. Wynne, Cr. & Ph. 252.



176 INJUNCTIONS AGAINST PROCEEDING AT LAW.



The case of a mortgagee is an exception to this rule, for he has a right to
proceed on his mortgage in equity, and at law, on any collateral securities, as
a covenant or bond, at the same time. But, if he is unable to hand over the
title deeds to the mortgagor, as, for instance, where another person has a lien
upon them, he will be restrained from proceeding at law : Schoole v. Sail, 1

S. & L. 176.

Even after foreclosure, it seems that a mortgagee alleging that the value
of the estate is not sufficient to satisfy the debt, is not absolutely precluded
from suing on the bond or covenant; but then, by doing so, he opens the
foreclosure and gives the mortgagor a right to redeem; if, however, the niort-
trao-or has, after foreclosure, sold the estate, and so precluded the possibility
of redemption, he will be restrained from proceeding on his collateral personal
securities. See LocTehart v. Hardy, 9 Beav. 349, and the comments of Lord
Langdale on Toohe v. Hartley, 2 Bro. C. C. 125 ; 2 Dick. 785, and Perry v.
Barker 8 Ves. 527; 13 Ves. 198. In a recent case a mortgagee, after fore-
closure and an attempted sale, was admitted to prove in an administration
suit on giving up the property, but he was not allowed the costs of fore-
closure ; Ilaynes v. Haynes, 3 Jur. N. S. 504.

Injunctions to restrain proceedings by, or against, the officers of the Court.']

A court of equity has also jurisdiction to restrain parties from proceed-

ino- at law against their own officers, when the process of the Court has been
either irregularly issued or executed. Thus, in May v. Hook, cited 2 Dick.
619; S. C, 1 J. & W. 663, n., where an attachment had been irregularly
executed, the defendant brought an action for false imprisonment ; but Lord
Bathurst restrained him from so doing, upon the ground that the Court will
punish its own officers, agreeably to the case of Bailey v. Devereux, 1 Vern.
269 ; where it is said, " The irregularity of serving the process of the Court
is only punishable here; and therefore, an injunction lies to stay proceedings
at law for irregularity :" and see Froicd v. Lawrence, 1 J. & W. 665. But
in a proper case, the party may apply to the Court, either for a reference to
the Master, to settle a proper compensation, or for liberty to bring an action :
Ex parte Clarke, 1 Buss. & My. 563 ; Phillips v. Worth, 2 Buss. & My.
638; Aston v. Heron, 2 My. & K. 390; Bricknell v. Stamford, 1 Beav.
368 ; see Ex parte Van Sandau, 1 Ph. 445, 605. But *where from
L °°J the circumstances, it appeared impossible to make out a case for
damages, the Court granted an injunction to restrain a party from proceeding
in an action of trespass brought against the messenger of the Court, and
ordered the plaintiff at law to pay the costs of the application : Chalie v.
Pickering, 1 Kee. 749.

So, the Court will restrain its own officers, or persons employed under its
authority, from proceeding at law. Thus, commissioners for the examination
of witnesses have been restrained from proceeding for their fees : Blundell v.
Gladstone, 9 Sim. 455; Ambrose v. Bnnmow Union, 8 Beav. 43. And hi
the matter of Weaver, 2 My. & Cr. 441, an order was made to restrain an
action brought by an auctioneer against the solicitor in a lunacy, for the



EARL OF OXFORD'S CASE. 177

amount of his bill for appraising and selling property belonging to the lunatic,
such sale having been made under the authority of the Court, and the auc-
tioneer having acted on the instructions of the solicitor, and with the sanction
of the Master, before whom he had, at first, carried in his claim ; and a refer-
ence was directed for the purpose of ascertaining what would be a proper sum
to be allowed him on that account. So where an action was brought by a
solicitor for the whole amount of his bill of costs, after a tender of the sum
awarded to him on taxation, he was restrained by injunction at the instance
of the representatives of his client : Re James Campbell, 8 De G. Mac. & G.
585.

How far injunctions can be granted to restrain proceedings in criminal
mattcrs.~] — Equity will not, however, restrain proceedings in criminal matters,
as on an indictment on a mandamus, or on an information or writ of prohibi-
tion, {Holderstaffe v. Saunders, 6 Mod. 16; Lord Montague v. Dudman, 2
Ves. 396 ;) unless such proceedings are commenced by a person also plaintiff
in equity, relative to the same matter. Thus, in the case of The Mayor and
Corporation of York v. Pllkington, 2 Atk. 302, where a bill and cross bill
were depending to establish the claim to a sole right of fishery, the plaintiffs
in the first suit caused the agents of the defendants to be indicted at York
Sessions for a breach of the peace in fishing in their liberty, Lord Hardwicke,
upon motion, restrained them from proceeding till the hearing of the cause
or further order. He observed, that, supposing it were a suit for a right of
land, where entries had been made, and the bill was brought to quiet the pos-
session, and after that they preferred an indictment for a forcible entry, which
is of a double nature, as it partakes of a breach of the peace, and is also a civil
right, the Court would certainly stop the proceedings upon such indictment :
for where parties submitted their *right to the Court, it certainly had r *-oj-i
a jurisdiction, and might interpose. L -•

But it seems that the Court would not have the same control over defend-
ants : The Attorney- Generals. Cleaver, 18 Ves. 220.

Whether an injunction loill be issued to restrain proceedings in bankruptcy .]
— Although a person will be restrained from using the debt of another for the
purpose of taking out a fiat against him in fraud of an agreement entered into
with respect to it, (Attwood Y.Banks, 2 Beav. 192; Anon., Rolls, 8 Jur.
1085,) it seems that equity has no jurisdiction to interfere in the mere distri-
bution of the estate of a bankrupt, either on the ground of trust or otherwise.
In Thompson v. Derham, 1 Hare, 358, the plaintiffs in equity claiming to be
admitted as creditors under a fiat in bankruptcy, in respect of a breach of trust
by the bankrupts, which was the subject of the suit in equity, applied, on
a dividend of the bankrupt's estate being about to be declared, to be allowed
to enter claim upon the proceedings, and to have a fund reserved ; the appli-
cation being refused by the commissioners, was renewed by petition to the
Court of Review, and also refused by that Court. A supplemental bill was
then filed, praying an injunction to restrain the assignees from paying any
dividend which might be declared, until the cause in equity was heard,
VOL. in. — 12



178 INJUNCTIONS AGAINST PROCEEDING AT LAW.



or without reserving a sufficient fund to answer the plaintiff's demand. It
was held, however, by Sir J. Wigrani, V. C, that if the Court of Chancery
had jurisdiction to interfere in the distribution of the estate of a bankrupt,
the Court ou"-ht, upon general principles, after an adjudication in bankruptcy
on the subject of the distribution, to refrain from exercising such jurisdiction ;
and see Bedford v. Gillow, 13 Sim. 44 j Perry v. Walker, 1 Y. & C. C. C. 672.

For the practice as to common and special injunctions to restrain proceed-
ings in other Courts, see 2 Dan. Ch. Prac. 1210, 3rd edit. ; Senior v. Pritchard,
1(3 Beav. 473 ; Lovell v. Galloway, 17 Beav. 1 ; 15 & 16 Vict. c. 86, s. 58.

Sow far parties will be restrained from applying for an Act of Parliament.']
As a general rule, in the absence of any circumstances calling for its inter-
position, as for instance a breaeh of trust, the Court of Chancery has no power
to interfere to deprive a party of the right of applying to Parliament for a
special law to supersede :ihe rules of property by which he finds himself bound,
whether arising from contract or otherwise. A leading case upon this subject
is that of Heathcote v. 'The North Staffordshire Railway Company, 2 Mac. &
Gr. 100. There the plaintiff had agreed with the Railway Company to with-
draw his opposition. to their bill in Parliament in consideration of their
J Completing their line of railway in a particular manner. The Com-
pany subsequently found themselves unable to carry their contract into execu-
tion, and gave notice of their intention to apply to Parliament for an Act to
authorize them to abandon 'their scheme. Lord Cottenham, C, dissolving an
injunction granted by Sir L. Shadwell, V. C, held that the Court could not
interfere to restrain the company from making the application to Parliament.
"It has been suggested," said his Lordship, "that this Court could not inter-
fere without infringing upon the privileges of Parliament ; so the courts of
common law thought at one time; and there is as much foundation for the one
as for the other supposition. In both cases this Court acts upon the person,
and not upon the jurisdiction. In a proper case, therefore, I have said here
and elsewhere, that I should not hesitate to exercise the jurisdiction of this
Court by injunction, touching proceedings in Parliament for a private bill or
a bill respecting property • but what would be a proper case for that purpose
it may be very difficult to conceive. The case of Parliament differs widely
from that of the courts of common law : the province of the latter is to enforce
legal rights, and the object of the injunction is to prevent an inequitable use
of such legal right ; but the ordinary province of Parliament in such bills is
to abrogate existing rights, and to create new rights. To hold, therefore,
that no application should be made to Parliament, because the object of the
application was to interfere with some right or interest of some other party,
would be in effect to hold that this Court should by its injunction deprive the

subject of the benefit of parliamentary interference in such cases The

injunction, therefore, cannot be granted, upon the ground that the Act applied
for would interfere with existing rights, it being the very object of it to do so.
What difference then can it make, whether such pre-existing right exists by
ihe tenure of property or by virtue of contracts ? In both cases Parliament



EARL OF OXFORD'S CASE. 179

has the same power of destroying, altering, or affecting such pre-existing