Burnett v. Craig , 30 Ala. 135 ( 1857 )

STONE, J.

The authorities most favorable to the equity of this bill are principally collected in Story’s Equity, vol. 2, §§ 928-9. The commentator says, “It (an injunction) is now granted, in all cases of timber, coals, ores and quarries, where the party is a mere trespasser.” Ch. Kent, in Livingston v. Livingston, held, that where a party in possession, under claim of right, was proceeding to cut down timber, it was proper to restrain him by injunction, until the right was determined; because, in such case, if the occupant should be shown to have no-right, the injury would be irreparable. — 6 Johns. Ch. 497. See, also, Hanson v. Gardner, 7 Vesey, 305; Universities v. Richardson, 6 Vesey, 689.

It was decided in Massachusetts, as late as 1842, that the power of the court of chancery, in that State, to grant injunctions on bills of this description, was limited to cases of technical toaste, and did not extend to ordinary trespasses. — Attaquin v. Fish, 5 Metc. 140.

The rule, we admit, has been somewhat relaxed; and courts of chancery, in modern times, entertain this auxiliary jurisdiction on more liberal principles than they formerly did. "We have found no case, however, where chancery has restrained a simple trespass, or succession of trespasses, on either the person of personal goods. The utmost extension of the principle which has come under our observation, embraces only trespasses to realty, where this remedial agency is shown to be necessary to prevent multiplicity of suits, or to .avert irreparable mischief. Livingston v. Livingston, supra; Stephens v. Beekman, 1 Johns. Ch. 318; Mitchell v. Hors, 6 Vesey, 147; Amelung v. Seekamp, 9 Gill & Johns. 468.

The case made by this bill is not one of waste or trespass on real estate. Regarding, as we do in this discussion, the averments of the bill as true, the appellees were proceeding, without authority of law, to impose fines and imprisonment on the appellant. Such fines and imprisonment, if the corporate authorities were not authorized by their charter to inflict them, were trespasses in all the parties concerned. — Brandreth v. Lance, 8 Paige, 24.

There is another objection to this bill. The judgments and sentences of the town council, of which the appellant complains, were quasi criminal proceedings. A bill in chancery, to restrain a malicious or unfounded prosecution, is certainly of novel impression.'

A bill, in its purposes very like the present, was filed in the chancery court of New York, in aid of an information quo warranto. It was held, that it would not lie. Atty. Genl. v. Bank of Niagara, 1 Hop. Ch. Rep. 354. See, also, 3 Han. Ch. Pr. 1838; 2 Story’s Equity, §§ 893, 898; Powell v. Central Plank-Road, 24 Ala. 441; Brandreth v. Lance, 8 Paige, 24; Roper v. Randolph, 7 Porter, 238; Croom v. Davis, 6 Ala. 40; Marriott v. Givens, 8 Ala. 694; Hamilton v. Adams, 15 Ala. 596 ; Eden on Injunction, 32-3.

Our own court lias laid down a rule that is fatal to this ■bill. — Montg. & W. P. R. R. v. Walton, 14 Ala. 207.

We have examined the case of Frewin v. Lewis, 4 Mylne & Craig, 249. The facts of that case may be found in 0 Simons, 66. That case and this are entirely dissimilar.

We have not been able to find any principle or adjudged •case, which justifies an injunction to stay a prosecution, either criminal or quasi criminal; or to restrain a trespass to the person or personal property. We think such a precedent would bo an alarming stretch of equity jurisdiction.

In considering this case, simply on the equity of the bill, wo have necessarily regarded its averments as true. It is not intended by this to intimate an opinion on the validity or invalidity of the ordinance, or of the fines imposed on the appellant. They will be considered when properly presented.

We fully concur with the chancellor in the principles of his decree, and it is consequently affirmed.