1840.-Holden v. Kynaston. This offer being refused, these defendants make this application to the court upon the subject. I confess I think that where a debt is claimed or demand made in a suit, and the defendant, admitting his liability, offers to pay the debt or comply with the demand, and to put the plaintiff in the same situation as he would have been in if that liability had been satisfied without a suit, it is the bounden duty of this court to put a stop to any further proceedings; and I shall never hesitate unless, I am controlled by higher authority, to comply with an application of that sort. The question which I have now to consider here is, how the parties are to be put in the same situation, or as nearly as may be in the same situation. It seems that whilst these proceedings have been going on another suit has been instituted, and a decree obtained for the same purpose. Now if this suit was rightly instituted, which I think was the case, and yet as against the defendants who now make the application it ought to be stopped, then, although it is not the duty of the defendants to pay the costs, because in the first instance they were ready to perform their duty, yet as one of the plaintiffs has still a demand unsatisfied, and will be obliged to go in in the other suit, the costs of the proceedings in this suit ought to be satisfied in the other. "What I conceive to be the justice between these parties is, that the [*207] defendants should pay to the plaintiff, to whom the debt is owing, the amount due to him; that the proceedings in this cause should be altogether stayed; that the plaintiff whose demand is unsatisfied should be allowed to go in under the decree in the other suit; and that the costs of this cause which have been hitherto incurred should be paid out of the assets realized in the other suit. I think, also, that the costs of this motion should be paid by the plaintiff, and be added to those costs of the suit, and be paid out of the assets in the other suit. [Mr. Pemberton. The costs of this motion are not asked in the notice.] My opinion is, that your client ought to be saved from any costs properly incurred in this suit, but I cannot direct the parties making this application to pay them. If I cannot make any general order, what I must order is this, that the sum due be paid, and that all further proceedings in this cause be stayed as against these defendants.(a) (a) The order as drawn up merely ordered the defendants to pay within ten days to Holden, and that Holden should accept the 150l. and interest; and upon such payment all further proceedings in this suit against Davis and Channell be stayed. Nothing was said as to costs. 1840.-Wedderburn v. Wedderburn. [208] 1840: January 23. *Wedderburn v. Wedderburn. After decree the court has jurisdiction. at the instance of a defendant, to enjoin the plaintiff from proceeding in another court in respect of the same matter. After decree here, the plaintiff cannot, except by leave of the court, proceed in another court in respect of the same matter, even though such proceedings are merely auxiliary. THIS suit was instituted by persons beneficially entitled to the estate of David Webster, against his surviving partners and persons who had succeeded them in the business, and it sought to participate in the profits which had been made in the partnership business, from the death of David Webster in 1801 to the present time. The case was heard by the Master of the Rolls, and a decree was then made for the plaintiffs,(a) which was afterwards affirmed by the Lord Chancellor on appeal.(b) While the parties were taking the necessary accounts under the decree in the Master's office, the plaintiffs commenced proceedings in the Court of Session in Scotland against several of the defendants, who had heritable property there; the object of which was to obtain the Scotch process of inhibition and arrestment, by which, as was stated, in a very early stage of a suit, the pursuer acquires a lien upon all the heritable property of the defendant for whatever he may eventually recover; and the process being recorded operates as notice to all future purchasers and mortgagees, so that in effect the defendant, from the commencement of the suit, is restrained from dealing with his property. The Scotch summons stated the partnership, and the different circumstances mentioned in this suit, and the proceedings and decree there[*209] in; it also stated that *the share of profits belonging to the estate of David Webster from 1801 to 1936 amounted to 462,0767.; and it showed clearly that the proceedings were in respect of the same demands as were the subject of the suit here. It was now moved on the part of the defendants, that the plaintiffs might be restrained by injunction from prosecuting the suits or actions in Scotland or any other suits or actions. Mr. Kindersley and Mr. Colvile, for the motion:-It will be objected. on the part of the plaintiffs, that this is a motion for an injunction. made on the part of the defendants; and that, on the authority of Brown v. Newall,(c) such an application is not regular. There are, however, many authorities which show that the court will grant an injunction. against a plaintiff, where the circumstances are such as to render such a step proper, and especially after decree; Mocher v. Reed, (d) Wilson v. Wether (a) 2 Keen, 722. (b) 4 Mylne & C. 41. 1840.-Wedderburn v. Wedderburn. herd,(a) Booth v. Leycester, (b) Edgecombe v. Carpenter ;(c) in addition to this, the decree here is for an account which enures to the benefit of the defendants, who then become active parties in the suit. The only question is, whether this is or is not a proper case for the interposition of the court. It is an established rule that a plaintiff will not be allowed to take proceedings in this and another court at the same time for the same demand, and it matters not whether the other court be English or foreign; Pieters v. Thompson, (d) in which a plaintiff was suing in this court, and in one of the judiciary courts at Amsterdam. Before decree a defendant has an [*210] easy remedy; he may obtain an order that the plaintiff may be put to his election,(e) which order stays proceedings in both courts ;(g) but after decree, a defendant of necessity loses the benefit of this order, because the plaintiff has already made his election, and the decree has already decided the question between the parties; the plaintiff can then carry his case to another tribunal only by special leave of the court, first obtained for that purpose. There is distinct authority for this application in Mocher v. Reed. There, after a decree for an account, the plaintiff proceeding at law for the same matter, was, at the instance of the defendant, restrained by injunction; Lord Manners observing, "After the plaintiff has obtained a decree to account, he is not at liberty to dismiss the bill; having got the relief he prayed, his election is made, and he cannot afterwards proceed at law; besides, how utterly inconsistent with the ends of justice it would be to permit him to proceed in this court and at law at the same time for the same demand; for the jury may find a verdict one way, and the Master make a report a different way, which would occasion such a clashing of jurisdiction as never could be endured." This course was followed in Wilson v. Wether herd. After a decree to account, an injunction was granted, on the application of the defendant, to restrain the plaintiff from proceeding at law in an action commenced by him pending the suit in equity. The same principle was acted on in this court, in Booth v. Leycester, which was afterwards affirmed by the Lord Chancellor; and [*211] there the plaintiff was restrained from prosecuting proceedings against the defendant in Ireland. So in Harrison v. Gurney.(h) The latter case and Lord Portarlington v. Soulby,(i) and Bunbury v. Bunbury,(k) show that the court has jurisdiction to restrain proceedings in a foreign court.[1] (a) 2 Mer. 406. (d) Cooper, 294. (b) 1 Keen, 579, and 3 Mylne & C. 459. (c) 1 Beavan, 171. (e) See 1st General Order, (9th May, 1839,) 1 Beavan, ix. (g) See Carwick v. Young, 2 Swan. 243. (i) 3 Myl. &. K. 104. (h) I Jacob & W. 563. (*) 1 Beavan, 318. [1] Vide, 1 Keen, 580, n. 1; The Marquis of Breadalbaine v. The Marquis of Chandos, 2 Myl. & Cr. 725; Beckford v. Kemble, 1 Sim. & Stu. 7, 16, n. (g); Booth v. Leycester, 1 Keen, 579; S. C. 3 Myl. & Cr. 549; 2 Story's Equity, $899, 900. The learned commentator on Equity Jurisprudence seems to restrict the jurisdiction of the court to cases in which both the parties, plaintiff and defendant, are resident within the locus fori. But is not the locality of the defendant sufficient, VOL. II. 17 A 1840-Wedderburn v. Wedderburn. The proceedings in Scotland are founded on a false representation of what has taken place here: they represent a large sum to be due to the plaintiff; whereas, under a decree for an account, it cannot be known on which side a balance will be found due, until the accounts have been taken and the Mas. ter's report confirmed. The proceeding itself is extremely harsh towards the defendant, as by the process of inhibition he is prevented from dealing with his property pending the suit, on a mere allegation of a claim for an unliquidated amount. If the plaintiff thinks fit to carry his case to Scotland, it ought to be decided there altogether; and the whole case might then be determined according to the Scotch law; the defendants might then, perhaps, avail themselves of defences under the Scotch law which they cannot have the benefit of in this country. By the 6 G. 4, c. 120, s. 2, which regulates the form of proceedings in Scotland, the defendant is obliged to bring in all his defences together; he cannot demur or plead so as to bring the case to a single issue. In a cause of this magnitude, where all the documents are in the Master's office, it would be attended with the greatest inconvenience and oppression if the defendants were compelled to make their defence in Scotland, where the defence [*212] of lis alibi pendens would prevail, but could *not be raised, except at an enormous and useless expense. Mr. Pemberton and Mr. Koe, contra:-In Wilson v. Wetherherd, Sir William Grant expressed doubts as to the principle of the case of Mocher v. Reed and the recent case of Brown v. Newall, where all the authorities were examined, concludes this point, that it is not competent to a defendant to take active proceedings against a plaintiff so as to obtain an adverse order against him. unless he file a cross bill for that purpose. There are cases, it is true where the court has labored indirectly to make an adverse order against a plaintiff at the instance of a defendant; but it always repudiates the jurisdiction to do it directly. The Master of the Rolls. The court has certainly shown some astuteness in making such orders; a case of that description was lately before me.(a)] The objections to the plaintiff's proceedings in Scotland are, first, the double vexation; and, secondly, that there may be inconsistent decisions; and it is to be seen whether the proceedings here taken are open to these objections. The suit was instituted in this court, because the principal parties are resident here, and the books are here, and the transactions of the partnership were carried on here, consequently in this country alone can the accounts be taken; but the property out of which the demands of the plaintiff are to be satisfied happens to be in Scotland. By the law of Scotland, the plaintiffs have the the power of securing what may ultimately be found due to them; and for or it is upon him only that the injunction is to operate? and in general, a foreign plaintiff-in matters not affecting real estate-has an equal standing in our courts with our own citizens, except his liability to give security for costs. (a) Shepherd v. Morris, 1 Beavan, 175. 1840.-Wedderburn v. Wedderburn. that purpose, and for that purpose only, are these proceedings taken in Scotland. The proceedings are not to establish the same demand, but are *auxiliary and in aid of the decree here, and only to secure the [*213] demands which may be established in this country; neither therefore, are the proceedings for the same purpose, nor can there be conflicting decisions. On what ground is the Scotch property to be withdrawn from the claims of the plaintiffs? This court has not the power of reaching the Scotch property, and therefore, of necessity, the plaintiffs must proceed in Scotland. Besides, it is most important that the plaintiffs should commence proceedings there, in order to prevent prescription running against them, by which their claims. against the property of their debtors will be wholly defeated. THE MASTER OF THE ROLLS (without hearing a reply) said, I am of opinion that, under the present state of circumstances, I ought to grant this application. The cases which have been cited of Mocher v. Reed and Wilson v. Wether herd, and the case of Booth v. Leycester, as it was decided by the Lord Chancellor, (I say nothing of the other cases,) sufliciently determine that the court has jurisdiction to interfere in a case of this nature; and it is therefore reduced to this question, whether this is a proper case in which to exercise that jurisdiction? I do not mean to express any opinion whatever upon certain very important points which have been raised here-I do not mean to say, that a plaintiff can in no case, pending proceeding under a decree, be permitted to pursue any auxiliary remedy in a foreign country-I do not mean to say that he cannot avail himself in any case of the proceedings which may be adopted in a foreign country, for the purpose of attaching the property of his debtor, or of obtaining security there; nor do I say that, pending proceedings in the Master's office, he may not in any case be permitted to adopt proceedings in a foreign country, for the purpose of preventing a prescription running *there, which would deprive him [*214] of every remedy in that country. There may, I conceive, be special circumstances under which a party may be at liberty to proceed in a foreign country, for all or any of those purposes; but I am clearly of opinion that a party ought first to apply to this court for leave to adopt such proceedings, if special circumstances do exist, as if the defendants have no available property in this country, or the defendants in this country are insolvent, or, in short, if there are other reasons why the remedy should be pursued in another country. When these reasons are stated, the court will judge of them, but the rule of the court is, that there is not to be a double investigation of the same matter upon which the court is to adjudicate.[1] Without saying more upon the merits, I think that I ought to grant the present application, without prejudice, however, to any special application which, upon a statement of the circumstances warranting such proceedings, may be made [1] Vide 1 Keen, 580, n. 1, where will be found an important extract from the opinion of Lord Cottenham on the appeal in this case. |