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Rolle

1834.

..! In. DRUMMOND y. PIGOU. Nov. 4. Special in. A MOTION was made for an injunction to restrain junction granted, under the Defendant Pigou from further proceeding in an

m" action at law, commenced by him against the Plaintiff stances, to stay process in the Court of Common Pleas, and from further proof outlawry,

er secuting process of outlawry instituted by him against proceedings the Plaintiff.

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. jon ei 11 at law against the Plaintiff in equity, the The Defendant Pigou was the personal representative Court requiring the Plain. of the mortgagee of certain fee-farm rents, which had tiff in equity been mortgaged by Drummond in the year 1826. Io to give judg. ment in the 1829, Drummond entered into a treaty for the sale of action, with stay of execu-"

wester the mortgaged premises to the mortgagee for the sum tion, to be of 30001., no part of the principal or interest being at dealt with as

that time paid. The contract was not completed in the should there. year 1834;, and the Defendant Pigou having, in the after direct.

mean time, received rents to the amount of 500l., and a dispute having arisen between the parties as to Pigou's right to receive this money, or whether he had received it in the character of mortgagee or purchaser, Drummond arrested Pigou for the 500l. ; and Pigou, having discovered that Drummond was residing in the Netherlands, commenced an action against him in May 1834, for the mortgage-money, and interest, and was proceeding with process of outlawry against him for non-appearance, no previous communication having been made by him to the Plaintiff or his solicitor. jpest Jitumaid adi i vititus Posts 19300 gallo 1x192 oa

Drummond filed his bill for the specific performance of the contract for sale of the mortgaged premises, and for an injunction to restrain the Defendant Pigou from proceeding in the process of outlawry. The common

injunction

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1894

DRUMMOND

injunction had not been obtained; and it appeared that the Plaintiff's solicitor was aware, on the 10th of July, of the process of outlawry having been issued; the last Seal-day previous to the vacation being the 28th of July. The capias utlagatum was issuable on the 6th of November. An ex parte application for a special injunction, made during the vacation, had been refused..' !

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Mr. Pemberton and Mr. K. Parker, in support of the world yell2 motion. In add t o Brit Listed on our site for yogin

Du bara It is not denied that there is a subsisting contract; . and, as the plaintiff claims, by his bill, the specific performance of that contract, the Defendant will not be misto ;) permitted to continue proceedings' at law in respect of "i'?"(!!! the subject matter of the suit.' The general rule,' upon ne of which the Court'acts in” refusing special injunctions to stay proceedings at law, "does not apply to cases where esit the common injunction would be obtained 'too late to

* answer any useful purpose: Hine v. Fiddės (6), Jones v. Bassett (6), Bevan v. Reid. (c)" The Plaintiff had, here, no notice of the proceedings, and no time to obtain the common injunction for any beneficial purpose.' Moreover the process of outlawry' is not a proceeding at law to which the common injunction is applicable. Pro ceedings at låw already commenced, to the restraint of which ihe common injunction is applicable,' 'must be proceedings founded' upon a declaration in an action by which the plaintiff at law seeks to obtain judgment and execution. The process of outlawry is not a proceeding of that description, but a proceeding for a contempt of the king's writ, in which, after the issuing of the writ, no service of process is necessary; which is entirely ex parte; and the object of which is, not to obtain judg2015. ***1'17'11 "1111011111!) itsen mot IB7010

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1894.

ment upon the merits of a cause, but to harass the defendant, and obtain a forfeiture of his goods to the Crown.

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Mr. Bickersteth and Mr. Stuart, contrà.

The Defendant Pigou is entitled, as mortgagee, to all his remedies; and has consequently a right, notwith• standing the treaty for the purchase of the mortgaged

property, to proceed at law for the recovery of the mortgage debt and interest. The cases of exception to the rule for refusing a special injunction to restrain proceedings at law, are where the defendant at law has given a warrant of attorney to confess judgment, and there is an equitable ground for restraining the plaintiff from proceeding to execution; or where the proceedings in the court where the action is brought are so rapid as in the court of the Duchy of Lancaster, and formerly in the Welsh courts--that the common injunction, regard being had to the time at which alone it can be obtained, would be useless. All the cases cited on the other side are of the latter description; and no instance can be produced of an injunction granted, upon a special application, to restrain proceedings at law in the courts at Westminster. The process of outlawry was resorted to in order to compel the Defendant to appear, and (by the modern practice) to put in bail. The necessity of putting in bail upon appearance was probably the cause of the Defendant's resistance to the writ. But, whatever was the cause of his resistance, he is in contempt, and consequently in no condition to call for the special interference of a court of equity. There is no pretence for the suggestion that Drummond was taken by surprise; for eighteen days elapsed between the time when it is admitted that his solicitor had notice of the proceedings, and the last Seal-day on which the common injunction might have been obtained.

Mr. Mr. Pemberton, in reply.

1884.

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The Master of the Rolls. (a) I did not entertain the application made in the vacation, because, as no step could be taken on the other side until Michaelmas term, no prejudice could accrue, in the mean time, to the Plaintiff; and because, although there is authority in the books for departing from the ordinary rule against granting injunctions specially to stay proceedings at law, that rule has been departed from only to the extent necessary to give to the party, under special circumstances, the benefit from which the ordinary practice of the Court excludes him; and the Court does not go to the extent of favouring ex parte applications for such special injunctions.

The question here is, whether, under the circumstances, it is competent to the Plaintiff to apply specially for an injunction to restrain the proceedings at law, the common injunction not having been obtained. It is clear that the Court has jurisdiction to entertain such applications, where the party cannot, from special circumstances, obtain the benefit of the common injunction. If, for instance, the court in which the action is brought has a practice which renders it impossible for the defendant at law to obtain the benefit of the common injunction, or if the parties have placed themselves in a situation which prevents the plaintiff in equity from availing himself of the ordinary remedy, as where a warrant of attorney has been given, the Court will entertain a special application for an injunction. There is no want of jurisdiction, therefore, where, in any particular case, a party can bring himself within the

exceptions i(a) Sir C. Pepys.

1834.

exceptions which will justify the Court in departing froni the ordinary rule.

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In the present case there has been a great deal of unfortunate hostility between the parties, and the Court can neither approve, on the one hand, of the action brought by the Plaintiff for the 5001., nor, on the other hand, of the advantage taken of the known absence of the Plaintiff by the Defendant, to proceed to process of outlawry against him without any previous communication to the Plaintiff or his solicitor. As to the question whether the Plaintiff had notice of the proceedings at law in time to enable him to take the benefit of the common injunction for want of answer, I am of opinion, looking to the affidavits on both sides, that the Plaintiff had not under the circumstances an opportunity of obtaining the common injunction. It is to be observed, moreover, that these proceedings are not ordinary proceedings at law, but proceedings in outlawry, in which no notice of process is served upon the Defendant at law. This Court, therefore, has clearly jurisdiction upon special motion to restrain the Defendant Pigou by injunction.

The Defendant, as mortgagee, is undoubtedly entitled to all his remedies, and among these to his remedy by action for the recovery of the mortgage debt and interest; but it is admitted that there is a subsisting contract which, if carried into effect, will convert the mortgagee into a purchaser. Whether the parties stand in the relation of vendor and purchaser is a question to be determined by this Court in the suit for specific performance of the contract. That suit gives the Court jurisdiction over the whole matter, and the Court will not permit the Defendant to continue proceedings at law respecting

the

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