Hutchinson v. Hutchinson's Executor 1 Houst. 613, 6 Del. 613

William Hutchinson, Jr., v. Hutchinson's Executor.

In a case at issue and ready for trial, the Court will not permit the plaintiff and his attorney to proceed to trial and judgment, if an injunction in the usual form he issued by the Chancellor during the term, enjoining any further prosecution of the suit until, &e., although the object *614of the plaintiff is merely to save delay and expense, and to proceed no further than to judgment in the case.

Scire sacias on a judgment in this Court, at issue and ruled for trial this term. A writ of injunction from the Chancellor, however, had been issued during the term in the usual form, enjoining the plaintiff and his attorney from further prosecuting the aforesaid scire facias, &c., until, &c.

T. F. Bayard, for the plaintiff,

now applied to the Court to proceed to the trial of the ease to verdict and judgment, notwithstanding the injunction, merely to save delay in the trial and recovery of judgment, in case the Chancellor, on the hearing of the case before him, should conclude to dissolve the injunction, as he had no doubt he would. He did not consider the injunction could prevent him from proceeding to trial and judgment in this Court, at this stage of the case, although it would stay any proceeding on the judgment when recovered. The rule in Chancery on this subject is, that an injunction restrains the commencement of an action, if none is begun when it issues; but if the action is actually commenced when it issues, the plaintiff may proceed to trial and judgment, and it only restrains execution on the judgment, or any other proceeding upon it afterwards. Franco v. Franco, 2 Cox Chan. Cases, 420; 3 Danl. Chan. 1903.

D. M. Bates, for the defendant:

The rule in equity is as stated on the other side, in cases of common injunction, but it is not the rule in cases of special injunction. 3 Danl. Chan. 1811, 1818, 1833, 1844. The injunction in this case is a special injunction, as every injunction is here; for we have in oúr practice no such thing as a common injunction, as the same is known in the English Chancery. And the distinction arises from the construction and effect which has been given to the clause which is always inserted at the end of the writ of common injunction which issues out *615of the Court of Chancery there. “ But nevertheless, the said defendant is at liberty to call for a plea and to proceed to trial thereon, and for want of a plea, to enter up judgment ; but execution is hereby stayed.” This is the conclusion of every common injunction as it prevails in that country. But we have no such writ here, and the injunction in this case contains no such saving—no such words. And it is because of these words of the writ, that it has been held and settled there, that if the declaration has been filed when the writ issues, the plaintiff at law may call on the defendant to plead to it, and on the plea being entered may proceed to trial, or for want of a plea, may enter judgment against him. But if the declaration in the cause is not filed when the writ issues, then no declaration can be filed, but it restrains all proceedings in the case from the date of its issue. But, as I have before remarked, this rule has no reference to a special injunction, or to any injunction such as this; for what will be considered a breach of a special injunction, must depend entirely upon the form of the injunction and the nature of the act to be prohibited. 3 Danl. Chan. 1903, 1904, 1907.