Mackay vs. Blackett & Stubbs, 9 Paige Ch. 437

The Chancellor. I think the vice chancellor was right in supposing that the complainant came too late with his application for an injunction ; even if he was right in bringing his case before the court in "the form of an original bill instead of a

summary application to the vice chancellor, before whom the suit was pending in which the irregular process had been issued. Where the jurisdiction of this court, the regularity of its process, or the validity of its orders is not in question, it is not a matter of course to restrain all proceedings against its officers in other courts for alleged misconduct in relation to proceedings here. In Frowd v. Lawrence, (1 Jack. & Walk.

Rep. 636,) Lord Eldon does indeed appear to have laid down the broad proposition that this court was bound in all cases to interfere and restrain any proceedings against its officers, in other courts, for alleged misconduct in executing its process or orders ; and to compel the injured party to seek redress by an application to the justice of this court alone. But in the more recent case of Aston v. Heron, (2 Myl. & Keen’s Rep. 390,) Lord Brougham has more correctly stated the principles upon which the court proceeds in such cases.

Wherever the jurisdiction of this court, the title of its officers, or the validity of its process or of its orders is disputed, or attempted to be drawn in question, by a suit instituted in another court against those who are acting under the orders or the process of the court of chancery, it is bound to interfere for their protection. In such cases the court has no choice ; it cannot allow any proceedings of the kind to go on without abandoning its own jurisdiction.

It must restrain of course ; otherwise it permits its own orders to be rescinded and its jurisdiction to be questioned—its orders to be rescinded indirectly and not by the superior court of appeal; its jurisdiction to be questioned by courts of inferior or co-ordinate authority.

But where the process of the court has been irregularly and illegally issued, and has been set aside by the court itself for such irregularity, or where an officer of this court under color or pretence of executing its orders has transcended his authority and interfered with the personal rights of others—where the process or the orders of this court have furnished a mere pretext for doing wrong— there are no considerations either of principle or of practical convenience which require the court, in every case, to draw to itself the consideration of the matter, to prevent all other tribunals from punishing the wrong-doer, and to exclude the injured party from access to all redress save that which its own jurisdiction can afford. (See Parker v.

Browning, 8 Paige’s Rep. 388.) Where process is set aside for irregularity, I believe all courts exercise the power of making it a condition of the order that no suit shall be brought for acts done under such voidable process, if the court, in the exercise of its discretion, thinks proper to insert such a condition in its order. And this court, upon a

summary application, may restrain the prosecution of any such suit, although it has not been made a condition of the order that no suit shall be brought. But as, upon such an application, this court may afford the injured person redress here, the party who wishes this court to take the matter into its own hands and restrain all proceedings elsewhere, should seek the aid of this court promptly and before he has tried the chances of a litigation of the matter in another tribunal.

The complainant, in the present case, therefore, instead of waiting the result of a trial by jury in the court of common pleas, should have applied at once to the vice chancellor, before whom the original suit in which the irregular process had been issued was pending, to stay the proceedings at law ; if he thought it was a proper case for the interference of this court.

Having taken the chance of a successful defence in another tribunal, or of a verdict for nominal damages merely in that court, and the result having proved disastrous to his interests so far as the amount of damages given by the jury is concerned, it was too late for him to ask the vice chancellor to take the matter into his own hands, and thereby to give the complainant the chance of having a different measure of justice meeted out to his adversaries in this court.

Even if the application had been made in time, and was in other respects a proper case for the interference of this court, I think the regular mode of proceeding was by petition to the vice chancellor, instead of a formal injunction bill. In other words, applications of this kind are to be disposed of by

summary proceedings before the chancellor or vice chancellor having jurisdiction of the original cause in which the matter arose, and not by a regular suit in this court. The application for an injunction must, for these reasons, be denied.