Page:Harvard Law Review Volume 5.djvu/140

124 124 HARVARD LAW REVIEW. against whom an administration decree was obtained, as often as he was sued at law by any creditor of his testator, to file a bill against such creditor {i.e., commence and prosecute a suit against him) for the sole purpose of obtaining an injunction ; and the fact that administration suits were so very numerous made this objection all the more serious. Still, it was an objection which courts of equity could not themselves remove without introducing arbitrarily a great anomaly in procedure; and it was, therefore, a proper case for legislation. It was not easy, however, a hundred years ago, to obtain legislation in England for such a purpose ; and, therefore, the question was, whether a serious practical incon- venience should be submitted to, or whether principle should be sacrificed ; and the latter alternative was the one adopted. In the time of Lord Loughborough, the practice began of granting the injunction, without requiring any bill to be filed, i.e., upon a motion made by the executor in the administration suit; 1 and this was in effect, not only giving relief upon motion, but it was giving relief upon a motion made in a suit in which such relief could, not possibly have been given by decree; for it was entirely foreign to the case made by the bill, and it was given, not to the plaintiff in the suit, but to the defendant — not against the de- fendant, but against a total stranger to the suit. Nor was the anomaly limited to the granting of injunctions on the application of the executor, without requiring him to file a bill ; for it afterwards became the practice to grant them equally upon the application of the plaintiff in the administration suit, 2 — a still greater violation of principle. The granting of them without requiring a bill to be filed was in itself, of course, a violation only of the principles of procedure, but the granting ot them on the application of the plaintiff in the administration suit was a violation of the rights of the parties ; for the executor was the only person who had a right to an injunction; 8 and if the plaintiff in the administration suit had filed a bill for an injunction against a creditor who was suing the executor at law, the bill would clearly have been bad on demurrer. In short, while the granting of the injunction on the motion of the executor was 1 Paxton v. Douglas, 8 Ves. 520 ; Clarke v. Earl of Ormonde, Jac. 108, 124, per Lord Eldon. See also Hardcastle v. Chettle, 4 Bro. C. C. 163. 2 Clarke v. Earl of Ormonde, Jac. 108, 125 ; Dyer v. Kearsley, 2 Mer. 482, note. 8 Clarke v. Earl of Ormonde, Jac. 108, 122, per Lord Eldon.