William Bookless, on behalf of Himself and other Creditors of Henry Bookless, Deceased, v William Crummack
| Jurisdiction | England & Wales |
| Judgment Date | 13 April 1837 |
| Date | 13 April 1837 |
| Court | High Court of Chancery |
English Reports Citation: 47 E.R. 430
COURTS OF THE CHANCELLOR
[1251 william booklehs, on behalf of Himself and other Creditors of henry bookless, Deceased, v. william crummack. V.-C. April 13, 1837. Injunction against creditor, whose judgment was such as ultimately to entitle him to execution de bonis propriis of the executor. Costs at law to the creditor down to time of notice of the injunction to be paid by the executor-also costs of the application in equity. It is not a sufficient ground for depriving a Plaintiff of the conduct of a creditors' suit that the proceedings up to the decree have been conducted by the executor's solicitor, with the view of obtaining an injunction against a creditor proceeding at law. The various affidavits, by which the notice of motion presently set forth was supported, in substance stated: That Anne Bookless was a creditor of the above-named Henry Bookless, and that the Defendant, W. Crummack, was his executor, and that the said Anne Bookless, on the 29th day of April 1836, commenced an action at law in the Court of King's Bench against the said Defendant for the recovery of her debt, and that the Defendant pleaded in such action that he had fully C. P. COOPER 126. BOOKLESS V. CRUMMACK 431 administered all and singular the goods and chattels which were of the said Henry Bookless, deceased, at the time of his death, and which had ever come to the hands of him the said Defendant, as executor, to be administered, and that he the Defendant had iLOt, nor at the time of the commencement of the said action, or at any time since, had any goods or chattels which were of the said Henry Bookless, deceased, at the time of his death, in the hands of him the said Defendant, as executor as aforesaid, to be administered. That on the 25th day of June 1836, and just previously to the time when the Summer Assizes were held for the county of York, in which county the venue in the said action was laid, and at which Assizes such action was about to-he tried, the bill of complaint in this cause was filed by or on behalf of the said Plaintiff against the said Defendant, by or by the direction or authority of William Jackman, [126] who was the attorney and solicitor of the said Defendant, and who had acted for him the said Defendant as such in putting in and filing his answer in this cause, and that in fact the said William Jackman had acted as solicitor for the-said Plaintiff and for the said Defendant in this cause from the commencement thereof. That the answer of the said Defendant in this cause was under an order dated the 29th day of the same month of June, taken without oath, and that the-same was filed on the 7th day of July following. That the said Anne Bookless and William Campion her solicitor, were not aware of the said bill and answer in this cause or either of them having been so filed as aforesaid, until the 10th day of July 1836, when the said Anne Bookless was served with two notices, and that by one of such notices, signed by the said William Jackman, she was required to take notice,, that under or by virtue of a decree made in the above suit on Saturday the 9th day of July then instant, by the Vice-Chancellor, all persons the creditors of the said Henry Bookless were at liberty to go in before the Master of this Court in rotation, and prove their debts against the estate of the said Henry Bookless, deceased, and have an account taken thereof by the said Master in the usual manner: and further, that she was therefore thereby required to discontinue the prosecution of the action commenced by her, and such notice was dated the said 9th of July. That by the other of such notices, signed by the said William Jaekman, the said Anne Bookless was required to take notice that this Court would be moved before the Vice-Chancellor on Wednesday the 13th day of July then instant, on behalf of the above-named Defendant, that she the said Anne Bookless might be restrained by the injunction of the Court from proceeding with the said action, and which notice was also dated the said 9th of July. That on the 14th clay of July 1836, she the said Anne Bookless was further served with a notice in writing, signed by William Jackman, that on Wednesday the 13th day of [127] July then instant, an order was made by the Vice-Chancellor, that a writ of injunction should forthwith issue to restrain the said Anne Bookless from proceeding with the action commenced by her against the said Defendant as aforesaid : and further, that the said writ of injunction would he sealed and duly served as soon as the same could be passed through the proper offices, and which last-mentioned notice was dated the said 14th of July. That in consequence of the said three several notices having been served, the said Mr. Campion, as such solicitor as aforesaid, hesitated as to the propriety of having the said action at law tried, but having considered that considerable expense had been incurred on the part of the said Anne Bookless in the said action, and that the same was prepared and ready for trial, and that the same was likely to come on for trial on the then next following day, he the said Mr. Campion consulted the counsel retained for the aaid Anne Bookless in such action thereupon, and that such counsel concurred together in opinion that the said action might with propriety be tried, aa an injunction had not been actually served upon the said Anne Bookless in this cause. That the said action was called on for trial upon the said then next following day, that is to say, upon the 15th day of July 1836, and that the leading counsel of the said Anne Bookless in such action then mentioned the fact of the said notices having been so served as aforesaid to the Judge who presided in the Court in which such trial was appointed to be had, and that the said Judge expressed himself to be clearly of opinion, that as an injunction from this Honorable Court to restrain the said Anne Bookless in the said action had not been actually served, the said action might then with propriety be tried. That the said counsel of the said Anne Bookless were about to proceed with the said trial accordingly, when the counsel for the said 432 BOOKLESS V. CRUMMACK C. P.COOPER 128. Defendant therein consented to a verdict being at once given against him the said Defendant for the sum of 233, 19s. 2d., the full amount of [128] the said Anne Bookless's demand against him in such action, whereby it appeared, as it was submitted, that the said plea in the said action was a false plea. That a writ of injunction from this Honorable Court was served on the said Anne Bookless on the 21st day of July 1836, and that the restraining .part of the said writ was in the words and figures following:-(1) "Our said Court did order that an injunction .should be awarded to restrain you the said Anne Bookless from all further proceedings in the action at law commenced by you in our Court of King's Bench against the Defendant William Crummack, as executor of the said Henry Bookless, deceased, or irom commencing or prosecuting any other action against the said Defendant touching your said debt or claim, until the further order of our said Court, but you the said Anne Bookless was to be at liberty to prove your costs incurred in the said action at law up to the time you had notice of the said decree in this cause before the Master to whom this cause stands referred; we therefore, in consideration of the premises, do hereby strictly enjoin and restrain you the said Anne Bookless, widow, under the penalty of .1000, to be levied upon your lands, goods, and chattels, to our use, from .all further proceedings in the action at law commenced by you in our Court of King's Bench against the Defendant William Crummack, as executor of the said Henry Bookless, deceased, or from commencing or prosecuting any other action Against the said Defendant touching your said debt or claim, until the further order of our said Court. Witness ourself at Westminster, the 120th clay of July, &c." That the said Anne Bookless and the said Mr. Campion respectively had not any confidence in the said Mr. Jackman, or in his representations, or in the said two notices of the 9th day of July 1836, or in the truth of the statements therein made and suggested, at the times when the same were respectively served upon [129] the said Anne Bookless, and that in fact they than, and up to the said 14th day of July 1836, when the said notice of that date was served, considered the same two former notices to have been unauthorized and unfounded, and the more especially as they were served upon...
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