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all the partners be assigned in liquidation of the pri- upon them any right to cousent to a destruction of vate debt of one of the members, so as thereby to de- the partners' equity aud the lien of firm creditors feat the claims of firm creditors? The authorities on which May and Graham by their conveyances had rethe question are divided, and in Burns on Fraudulent served. What right then had the court to assert that Conveyances it is broadly stated that such convey- all the partners had voluntarily waived their equity ances are voluntary and void as to firm creditors, but by an act of fusion to which all did not consent? it is doubtful from the cases cited whether the author In McNutt v. Strayhorn, the court, following the is alluding to transfers made by one partner alone, dicta in the previous cases in that State, decided that without the assent of his copartner, or whether he transfers severally made by all the partners worked a embraces assiguments participated in by the entire destruction of the partners' equity and the firm oredfirm. If the former, the proposition is indisputable. itors' lien. If the latter, we think the bounder reasoning and the These cases will enjoy an unenviable solitude, and weight of authority are against him. We speak of they should, for more illogical decisions cannot well be cases like the present, where there is no pretense of imagined. actual fraud and where there is no showing that the The decision of the court in Case P. Beauregard, 99 firm was at the time insolvent, though according to U. S. 119, was reaffirmed in Case v. Beauregard, 101 id. some of the cases the insolvenoy of the firm would not 688, and Fitzpatrick v. Flannagan, 10€ id. 648. In this affect the result. The firm creditors at large of a part- last case the court declared that the survivor of an in. nership have no lien on its assets any more than ordi- solvent firm, who is permitted to carry on the business vary creditors have upon the property of an individ- by the personal representatives of the deceased niemual debtor. The power of disposition over their prop- ber may dispose of the partnership property in pay. erty inherent in every partnership is as unlimited as ment of his individual debt. The language of the court that of an individual, and this jus disponendi in the is too remarkable to be omitted from this discussion. firm, all the members coöperating, can only be con- “And unless a partnership creditor or the personal trolled by the same considerations that impose a limit representatives of the deceased partuer commence upon the act of an individual owner, namely, that it such a proceeding to liquidate the affairs of the partshall not be used for fraudulent purposes. So long as nership there is nothing to prevent the surviving partthe firm exists therefore its members must be at lib- ner from dealing with the partnership property as his erty to do as they choose with their own, and even in own, and acting in good faith, to make valid disposithe act of dissolution they may impress upon its assets tions of it. Locke v. Lewis, 124 Mass. 1. And if in Buch character as they please. The doctrine that firm like good faith, with the acquiescence of the personal assets must be applied to the payment of firm debts, representatives of the deceased partner, he uses the and individual property to individual debts, is only a firm property to continue business on his own ac. principle of administration, adopted by the courts count, and in his own name he does it without other when from any cause they are called upon to wind up liability than to be held accountable to the estate of the firm business, and find that the members have his deceased partner for a share of the profits; or as made no valid disposition of or charges upon its assets. we have seen, upon a bill filed for that purpose by the Thus when upon a dissolution of the firm by death or personal representatives of the deceased partner, or limitation or bankruptcy or from any other cause, the partnership creditor; to wind up the firm business courts are called upon to wind up the concern, they and apply its assets to the payment of its debts. Any adopt and enforce the principle stated; but the prin. intermediate disposition of the property made in good ciple itself springs only out of the obligation to do faith, even though it may have been specifically a justice between the partners. * * This right of part of the partnership assets, and even if it has been the creditors is therefore really the right of their applied to the payment of bis individual obligations, debtors and inures to them derivatively from the will be valid and effectual.” debtors. Hence it is said that the lien or quasi lien of Suppose all the partners concur in transferring their the creditors is worked out through the partners;' interest in the firm to a stranger, will the lien of the the meaning of which is that the firm creditors may firm creditors be extinguished? If it is simply a condemand the primary application of the firm assets to veyance of their interest after deducting partnership the payment of their debts, because each one of the liabilities, and the purchaser does not assume those partners should have a right to demand this as against debts, it must be held, if principle is observed, that the his copartners. * Copoeding, as all the authori- lien is preserved, although there are dicta leaning the ties do, that the firm creditors have no independent other way, as we have already seen. The partners right to demand to be first paid, but derive that right having subtracted the firm debts from the value of the solely by, through and under the right whicb the par- firm property, have as between themselves and the ties have to insist that this shall be done, it is impos- purchaser paid such debts. It is therefore to their sible to see how the rule can be enforced where all the interest that they should not be called upon to pay members of the firm have before the dissolution, and them again. If the purchaser does not render himself without ground to suspect fraud, given to the assets personally liable for their payment, the partners must a different direction."

be presumed to have intended that the firm property Principle lies at the foundation of this decision, and shall remain bound for their satisfaction, for otherit is difficult to see how any other doctrine can be wise the partners might have to pay them after the enunciated consistently with the principle that the firm property had been sold by the purchaser or seized equity of firm creditors is merely derivative. But the to pay his individual debts, the purchaser not being liafallacy of the reasoning of the court in Case v. Beart- ble for the firm debts. Nay, the partners would run the regard, based upon the power of the parties to destroy risk of being called upon to pay them the next day the equity of firm creditors by the unanimous consent after the sale, if such sale discharged their lien and the of all the partners, lay in the assumption of a fact which lien of the firm creditors upon the firm property. In did not exist, namely, that May and Graham, as well Menagh v. Whitwell, 52 N. Y. 161, Judge Rapallo exas Beauregard, assented to the act of fusion. They presses his opinion that such a sale would not destroy did not assent to it. Their grantees or transferees did: the lien of firm creditors. “How much more clearly but they had no authority to do so, so as to bind their apparent would be the injury to creditors by a sale to assignors, as the transfers to them only passed the in- a person not liable for the debts if such sale had the terest of May and Graham in the firm assets, wbich effect to relieve the property from them.” If on the was given subject to firm debts, and did not coufer other hand, the partners sell the firm property, aud



* *

not merely their interest in it, and firm debts are not viving partners to do one of two things-either to wind deducted from the value, then it is clear tbat the lien up the partnership business at once, or to fix the value of the partners is forever gone, for so far from having of the testator's property and secure payment of the any interest in the firm property continuing as secur- amount.

If the executors do not ity for the firm debts, they have expressly discharged apply for a receiver, but simply file a bill for the it from such lien by receiving its full value without

winding up of the partnership, I apprehend that the deducting the debts, and transferred the lien from the new stock which has been acquired during the time property to its proceeds which they have received, and

that the business has been carried on by the surviving thus extinguished the lien of firm creditors. As be

partner belongs in the first place to the oreditors who tween themselves and the purchaser, the duty rests had been created by such subsequent dealings, and upon them to satisfy the firm claims. The transaction not to the creditors of the old partnership, and that is is in effect the same as a sale of specific articles of mer- the duty of the executors if they wish to prevent any chancise by a firm. It is a mere truism to say that dealings with the stock to come at once to this court the title of the purchaser in such a case is unincum- | for the appointment of a receiver; otherwise they in bered by any lien in favor of partnership creditors. fact sanction the commission of a fraud by leading the

The lien of a partner upon partnership assets sur- subsequent creditors to believe that they are dealing vives his death and vests in his personal representa- with a person who is liable out of his stock in trade to tives. It is held by all the authorities that to the ex- discharge their debts." tent that the partnership property remains in specie While the decisions which have been already rethe lien of the old firm creditors is superior to the lien ferred to, holding that the transfer by all the partners of the creditors of the surviving partner or partners to an individual creditor is effectual to destroy the w5o continue the business. Stocken V. Dauson, 9 lien of the firm creditors are sound on principle, it Beav. 239; affirmed in 17 L. J. Ch. 282; Payn v. does not necessarily follow that such transfer is good Hornby, 25 Beav. 280; Hoyt v. Sprague, 103 U. S. 613; as against firm creditors. It may be fraudulent in 8. C., 26 Law Ed. 585, 590; Nerot v. Burnard, 4 Russ. law, although there is no fraud in fact. The partner 247; Payn v. Hornby, 4 Jur. (N. S.) 446.

whose individual debt is not thus paid or secured This is the rule, even though the representatives of takes from his own property, to which the firm credit. the deceased partner consented to the continuance of ors have clearly a right to resort for payment, a porthe business without a settlement with the survivor. tion thereof to pay a debt for which he is bot liable. Hoyt v. Sprayue; Nerot v. Burnard; Payn v. Hornby. To that extent he gives away bis property. But the

But see the doctrine in Fitzpatrick v. Flannagan, law requires him to be just before he is generous. If supra, which is opposed to this doctrine. And where

therefore the property which he retains is not suffino such consent is shown, and the contract of partner- cient to pay all his debts, the transaction is necessarily ship does not require a continuance, and no provision fraudulent and void. The other partner and the firm to that effect is contained in the deceased partner's being insolvent, or the firm being made insolvent by will, the lien of the old firm creditors binds the new the transfer, it is clear that if the partner whose indi. property brought into the business by the survivors as vidual debt is not thus paid does not retain enough well as the old. West v. Skipp, 1 Ves. Sr. 259; Stocken property, so that the firm creditors can collect the de. v. Dawson, 9 Beav. 239; S. C., on appeal, 17 L. J. Ch. ficiency out of the same after exhausting the firm 282.

property, the firm creditors are defranded, for he has The authorities agree that where the representatives given away a portion of his property at the expense of consent to the continuance of the business, the lien of his creditors. While it is true that the equitable lien the old firm creditors attached to only the old firm of the partnership creditors is gone, they still bare the property. Hoyt v. Sprague; Payn v. Hornby; Lind. right in common with all creditors to assail a transfer Partn., 700-702.

which operates as a fraud upon them. They cannot In Hoyt v. Sprague the court, in passing on this claim that a fraud has been committed by the destrucquestion, say: “They" (the representatives) “had the tion of their equity, but they clearly have the right to power, if they saw fit, unless restrained by their bene. insist that one of their debtors shall not pay the debts ficiaries, to allow the estates of their deceased intes- of another at their expense. tates to be continued in the business of the partner- In Schmidlapp v. Currie this obvious distinctiou is ship; and if it was continued by their allowance and not mentioned; but it may be that the case did not consent, the property became liable to the partnership call for any refereuce to it. While all the firm propdebts subsequently incurred as well as to prior debts; erty was turned over to the individual creditor of one but with this qualification, that the property which of the partners, and the firm, as a firm thus rendered remained unchanged was still subject to the partner- insolvent, it may have been the case that one of the ship lien in preference to after-incurred debts; whilst

partners was abundantly able to pay all his individual new property, which in the course of business took the debts and the firm debts besides. In such case the place of the old, was not subject to said lien in prefer- transactions would not necessarily be fraudulent, and ence to such debts."

the question of fraud would be a question of fact. Iu Payn v. Hornby, Sir John Romilly, master of the

The partner whose property would have to pay all the rolls, asserts that there is no lien on new firm prop- firm debts, and not the firm creditors, would suffer erty in favor of old firm creditors, even though the from the transaction. representatives of the deceased partner do not in any In Wilson v. Robertson, 21 N. Y. 587, the court based way sanction the continuance of the business. To its decision on the distinction holding that the preferprevent such a lien from attaching, they must prevent ence by the firm of the individual creditors of one of the carrying on of the business by the appointment of the partners was fraudulent in law, because as the a receiver; otherwise the new firm creditors can claim other partner was not liable for such debts, the trais. priority of payment out of new firm property over old action constitutes a gift from him at the expense of firm creditors. He says (4 Jur. [N. S.] 446): “ But on his creditors. The court said: "Neither the firm nor the death of a partner the case is altogether different. the copartner Staples was in a condition to make a There is, as Lord Eldon very accurately expressed it, gift of the firm assets to Crocker or his creditors." 'a quasi lien;' there is in point of fact only a right In New Hampshire the doctrine, that a transfer by to the specific property. The executors of the deceased one of two partners to the other operates to destroy partner are joint tenants with the surviving partners, the creditors’ lien, is qualified. It is there held that and accordingly they are entitled to require the sur- the lien of firm creditors is extinguished on the inter


est of the selling partner. but that the lien on the and in every such case this policy shall be void." It sale of the purchasing partner is unaffected by the seems to have been conceded at the trial that the plaintransaction. Spurt v. Russell, 23 Am. Law Reg. 276; tiff's buildings had been “unoccupied" within the S. C., 59 N H. 338. See also Tenny v. Johnson, 43 id. meaning of that term as used in the policy, for a per144.

iod of more than ten days. But a different meaning This decision has no foundation in principle, and is, was given to the phrase "vacant and unoccupied," as we have seen, opposed to the almost unbroken and under instructions of the court upon the definitrend of the adjudications. In addition to the cases nition of the word “vacant," the jury found that the already cited on this subject, see Rice v. Barnard, 20 buildings were not vacant and unoccupied " for a Vt. 479; Marks v. Hill, 15 Gratt. 400; Giddings v. period of more than ten days between the date of the Palmer, 107 Mass. 269; Conchman's Adm'r v. Maupin, policy and the fire. 78 Ky. 33.

The meaning of the words " vacant and unoccu

GUY C. H. CORLISS. pied "as used in the contract of insurance is that POUGHKEEPSIE, N. Y.

which the parties intended to give them; and that intention is to be found from the whole instrument, the

subject-matter of the contract and the situation of the INSURANCE -VACANT AND UNOCCUPIED." property insured. The object of the stipulation

against vacancy and non-occupancy was to guard NEW HAMPSHIRE SUPREME COURT,

against the increased risk which arises from the abJULY 29, 1886.

sence of everybody, which duty or interest might af

ford some protection. In the same clause of the conMOORE v. PHENIX FIRE INSURANCE Co.

tract, "increase of risks" from the mode of occupa

tion and use of the premises, and “increase of risk by A house in which no one lives, but in which a former occu

any means whatever,” are mentioned as express pant had left some trifling articles of furniture, not of

grouuds for avoiding the policy. “If the buildings such character as to be valuable for use elsewhere, is

shall be occupied or used so as to increase the risk, or vacant and unoccupied " within the meaning of these

become vacant and unoccupied for a period or more terms as used in fire insurance policy.

than ten days, or the risk be increased by any means

whatever," is a statement in which the leading idea plaintiff's two-story frame dwellivg-house, barn in the condition of forfeiture is “increase of risk," and shed attached.

and that idea must have been intended as a part of the The court instructed the jury that the word “va- definition of the words “ vacant and unoccupied." It cant” in the policy means the same as empty, de- was the increase of risk from the loss of care and atvoid of furniture, and that whether the buildings were tention of persons otherwise present, which the partvacant, in that sense, was the question for them to ies intended to guard against by the stipulation of the decide. Looking at the purposes and uses of the forfeiture in case of vacancy and non-occupancy for house, was it vacant in the above sense? To this in- more than ten days. That intended by the words struction the defendants excepted. In response to a “ vacant and unoccupied,” as used in the policy and in question submitted to them by the court the jury the connection in which they were used, such a deserfound specially that neither of the buildings named in tion of the premises and removal from them as would the policy was vacant and unoccupied for more than materially increase the risk. The case of Sleeper v. ten days at any time between the date of the policy Ins. Co., 56 N. H. 401, sustains this construction of the and the tim of the fir A general verdict was di. words vacant and unoccupied." In that case the rected for the plaintiff, which the defendants moved stipulation for forfeiture in the policy was, “if the to set aside.

premises hereby insured beoome vacated by the reJ. L. Foster, Ray, Drew & Jordan and Rand & Morse,

moval of the owner or occupant, without immediate for plaintiff.

notice to the company and consent indorsed hereon

* this policy shall bo void.” In the opinion by Carpenter. Bingham, Aldrich & Remick and Bing

Smith, J., it is said: “It is apparent the insurers inham, Mitchells & Batchellor, for defendants.

tended to guard against the increased risk which inALLEN, J. The defendants claim that the action evitably affects buildings, where no one is living, or canuot be maintained because it was not commenced carrying on any business. An unoccupied building in this court within twelve months from the date of invites shelter to wanderers and evil-disposed perloss, as stipulated in the policy. The action was com- sons. No one interested is present to watch or care menced within twelve months of the loss in the Cir. the property, or seasonably extinguish the cuit Court of the United States. Subsequently after flames in a case of fire; and for various reasons that the lapse of more than twelve months, by agreement might be enumerated an unoccupied building is more of the parties, the suit was transferred to this court. exposed to destruction, to say nothing of the induceThe entry of the action bere was not of a uew action ment a dishonest owner would have to turn it, it unthen first commenced. It was the same action before profitable, into money, when insured, by becoming a begun in the Federal court. The agreement to enter party to its destruction by fire. If then the motive is the action here and prosecute the defense was a to have some one present occupying and dwelling in waiver by the defendants of the limitation in the pol- the buildings, and interested to preserve the roof that icy. The limitation was not pleaded, and this defense shelters his family or hold his household goods, that could not be made except under a special plea. The object would plainly be defeated by holding that he buildings were occupied at the time the insurance was and his family may depart with all their possessions, effected, August 15, 1876. From August 24, 1876, to save perhaps a few articles not needed for present use, December 11, of the same year, they were not occu- and still the premises be considered occupied. * * * pied. They were consumed by fire December 30, 1876. I cannot say that I bave any doubt that these buildThe policy contained the condition that “if the prem- ings were vacant at tbe time they were burned, in the ises shall be occupied or used so as to increase the sense in which that term was used in the policy." And risk, or become vacant and unoccupied for a period of Ladd, J., jy his opinion in the same case says: “I more than ten days, or the risk be increased by any think when the occupant of a dwelling-house moves meaus whatever within the control of the assured, out with his family, taking part of his furniture and without the consent of the company

* then all the wearing apparel of the family and makes the



place of his abode in another town, although he may bave an intention of returning in eight or ten months, such dwelling-house, while thus deserted, must be regarded as unoccupied, that is, vacated, according to the natural and ordinary received import of those terms. It is the very situation against the hazards of which the defendants undertook to guard themselves by au express stipulation and condition inserted in the contract upon which the action is founded."

In Keith v. Ins. Co., 10 Allen, 228, the policy contained a provision that “if the building insured remains unoccupied more than thirty day without 110tice the policy will be void.” The building was trip-hammer shop and had not been used for business for more than thirty days, the machinery and tools remaining there, and the plaintiff's son going through the shop nearly every day to see if things were right. It was decided that these facts did not constitute occupancy, but that some practical use must have been made of the building; and if it remained thus, without any practical use, for the space of more than tbirty days, it was within the meaning of the policy, unoccupied, and the policy became void. And in Ashworth v. Ins. Co., 112 Mass. 423, the condition in the policy was, “if the buildings insured shall be vacated and remain so more than thirty days without the consent of the company, tbe policy shall be void." The buildings were a dwelling-house and barn. The house was only used by the plaintiff for himself and servants to take their meals in when he was carrying on a contiguous farm, and the barn was used for storing hay and tools, but no cattle were kept there. A verdict for the defendant ordered upon these facts was sustained, the decision being that the premises were vacated within the meaning of that term as used in the policy, which thereby became void. In the opinion Colt, J., says: “Occupancy as applied to such buildings implies an actual use of the house, as a dwelling place, and such use of the barn as is ordinarily incident to a barn belonging to an occupied house, or at least something more than a use of it for a mere storage. The insurer has a right, by the terms of his policy, to the care and supervision which is involved in such an occupancy.” Keith v. Ins. Co., supra, where “unoccupied " instead of “ vacated” is used in the condition of forfeiture, is oited as an authority in support.

If the terms “vacated and unoccupied," as applied to buildings and as used in clauses of forfeiture of insurance, are intended to refer to the want of some practical use for which the insured buildings were de. signed, and the reason for this is the increased risk arisiug from the lack of care and vigilance incident to such a use, then the buildings must be said to be cant and unoccupied” within the meaning of the contract of insurance when there is such a removal from them as to materially increase the risk from fire.

In all the cases referred to, the terms “ vacancy and “non-occupancy” are used interchangeably and as equivalent in meaning.

* When the policy specially provides, that in case the premises shall be left unoccupied’ (Paine v. Agricultural Ins. Co., 5 N. Y. 619) or shall remain unoccupied " (Keith v. Ins. Co., supra) or “shall become vacant (Cummins v. Ins. Co., 5 Hun, 554) or 'unoccupied' (Wustman v. Ius. Co., 15 Wig. 138) or shall be vacated' (Ashworth v. Ins. Co., supra) the insurance shall be forfeited, a practical occupapoy consistent with the purposes or uses for which they were insured is intended, and an occupancy that measurably lessens the vigilance and care that would be incident to its use for such purposes is not an occupancy within the meaning of the term as thus employed." Wood lus., $ 89.

The question of vacancy and non-occupancy, and

the question of increase of risk from these and other changes of circumstauces, are questions of fact for the jury. Gumwell v. Merchants' Ins. Co., 12 Cush. 167; Luce v. Ins. Co., 105 Mass. 297; Williams v. Ins. Co., 57 N. Y. 274; Cummings v. Ins. Co., 67 id. 260; Robinson v. Ins. Co., 27 id. 134; Wood Ing. 439, and cases cited. But when the undisputed facts as naturally interpreted show vacancy and non-occupancy and consequeut iucrease of risk, or where there is no evidence to rebut, modify or explain the evidence of increased danger from the change, there is no question of fact to submit to the jury, and is becomes the duty of the court to declare the verdict. Sleeper v. Ins. Co., supra; Ashworth v. Ins. Co., supra ; Dittmer & Pelle v. Ins. Co., 23 La. Ann. 458.

The defendants at the trial moved that the verdict be directed for them on the ground that there was no evidence to be submitted to the jury, that the insured premises were not“ vacant and unoccupied." The motion was denied and the question of vacancy and non-occupancy was submitted to the jury under instructions making a distinction in meaning between these terms as used in the policy, and leaving the question of vacancy to be determined upon the eridence without reference to the question of increase of risk. Taking the meaning of the phrase "vacant and unoccupied,'' as used in the policy, to be such vacancy and non-occupancy as materially increased the risk, there was no evidence that the buildings insured were not "vacant and unoccupied " for a period of more than ten days, in that seuse. The premises were not occupied for nearly three months between the date of the policy and the fire. Little or no furniture of sufficient value to remove was left in the house, which was remote from babitations, five miles in one direction and two in the other. There was no person in the vicinity whose duty or interest required him to have any care of it. The house was open; the win. dows, some broken, were entirely gone and it was exposed to the incursions of chance travellers, pleasure seekers, sportsmen and tramps. Nothing short of destruction, which subsequently came, could have added to the abandoned character of the premises uuder the desolation which set upon them. The facts all point to one conclusion. There is no circumstance showing or tending to show that the buildings were not "va: cant and unoccupied," and there was no evidence showing or tending to show that the risk was not increased. There is no fact that lessens or modifies the force of the fact that shows increased danger. It does not alter the case that the plaintiff did not know of the vacaucy and non-occupancy until the time of re-occupation. Reasonable care required that he should have known of the tenant's removal, and it was his duty to see that the terms of the contract were carried out. Sleeper v. Ins. Co., supra. The defendants did not consent to the non-occupancy. They were not informed of it until long after the fire, and even in the plaintiff's proof of loss, he failed to give this material information. The parties could not have intended such an abandonment of the premises as the case shows, and at the same time not have intended that they would be “vacant and unoccupied" in the sense in which those words were used in the forfeiture clause of the policy. There being no evidence competent to be submitted to the jury that the build. ings were not for more than ten days after the insuranco “yacant and unoccupied," and vacancy and you. occupancy being manifest from uudisputed evidence, the motion of the defendants for a verdict should have been granted, and the exception to the refusal is sustained.

Judgment for the defendants.

Carpenter and Bingham, JJ., did not sit; the others concurred.


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INJUNCTION-AGAINST LIBEL OF BUSINESS. dicature Act of 1873, was an amalgamation of all the

courts of original jurisdiction of Westminster ball, UNITED STATES CIRCUIT COURT, E. D. PENNSYLVANIA, including the court of chancery, which became merely OCTOBER 9, 1886.

one of the divisions of the high court, it followed that

the court of chancery became invested with the jurisKIDD V. HORRY.

diction which was given to the common-law courts by

the Common-Law Procedure Act of 1854; and hence An injunction will not issue to restrain a libel on business.

became vested with power to grant injunctions to pre'HIS was a motion for a preliminary injunction to vent the continuance or repetition of an injury which

restrain the defendants from publishing defama. was actionable in any court and for which an action tory and libellous statements about the plaintiff's was brought, although the power to grant injunctions business, carried on in conuection with two letters- in cases of libel was resisted in several instances by patent of the United States. The plaintiff had filed a very high authority, as in the case of the Prudential bill in equity to restrain the defendants from infring- Ins. Co. v. Knott, 10 Ch. App. 142, by Lord Chancellor ing these patents and for an account. The defend- Cairns and Lord Justice James; and in that of Butants' answer had not been filed. The bill upon which don v. Beddon, 9 Ch. Div. 39, by Sir George Jessell. the injunction was asked for was filed as an ancillary The practice of issuing such injunctious however bill in the suit already peuding.

finally prevailed. Anthony Q. Keasbey and Francis Rawle (with them

This statute law of Great Britain is sufficient to acWalter G. Smith), for plaintiff.

count for the English cases relied on by the complain

ant, and is undoubtedly the basis on which they E. Clinton Rhodes (with him F. Carroll Brewster),

really stand. for defendants.

lu the case of Thorley's Cattle Food Co. v. Massam, BRADLEY, J. We are asked to grant an injunction 14 Ch. Div. 763, a leading case on the subject, Malins, in this case to restrain the defendants from publishing V. C., says, referring to previous cases: “I think certain circular letters which are alleged to be libel- these cases at law establish this doctrine; that where Jous and injurious to the patent-rights and business of one man publishes that which is injurious to another the complainants, and from making or uttering libel- in his trade or business, that publication is actionable, lous or slanderous statements, written or oral, of or and being actionable, will be stayed by injunction be concerning the business of the complainants, or con* cause it is a wrong which ought not to be repeated,' cerning the validity of their letters-patent, or of their This is an evident reference to the Common-Law Protitle thereto pending the trial and adjudication of the cedure act; and other cases expressly refer to the principal suit which is brought to restrain the in- act. fringement of said patents.

Thus in the case of Quartz Hill Consolidated Mining The application seems to be altogetber a novel one, Co. v. Beall, 20 Ch. Div. 501 as late as 1882, Sir George and is urged principally upon a line of recent English

Jessell says:

“This is an appeal from a decision of authorities, such as Dixon V. Holden, L. R., 7 Eq. 488; Vice Chancellor Bacon granting an injunction upon Thorley Cattle Food Co. y. Massam, 14 Chan. Div. 763 ; interlocutory application to restrain the publication of Thomas v. Williams, id. 864; and Hermun Loog v. libel. I have no doubt whatever that there is jurisBean, 26 id. 306. Au examination of them, and other diction to grant such an injunction. It is plain that cases relied on, convinces us that they depend on cer- the jurisdiction conferred on the common-law courts tain peculiar acts of Parliament of Great Britain, and by the Common-Law Procedure Act of 1854, exnot on the general principles of equity jurispru- tended to the granting of such an injunction. The dence.

79th section is as large in terms as can well be, and the By the Common-Law Procedure Act of 1854 (17 and 32d section allows ex parte injunctions in every case 18 Vic., ch. 125, $$ 79, 81, 82), it was provided, that " in where a final injunction could be granted under the all cases of breach of contract, or other injury, where 79th section. Of course under the rule of omne majus the party injured is entitled to maintain and has continet in se minus, if the court can grant an injuncbrought an action, he may claim a writ of injunction tion ex parte, a fortiori it can grant it on notice. It is against the repetition or continuance of such breach therefore clear to my mind that the common-law of contract or other injury," etc.; and “in such ac- courts bad this jurisdiction in all common-law tion judgment may be given that the writ of injunc- | actions. That jurisdiction is transferred to the high tion do or do not issue, as justice may require," and court, and that would suffice to decide this question further ($ 82), the plaintiff may at any time after the of jurisdiction. But by the Judicature Act of 1873, commencement of bis action apply ex parte for an in- ($ 25, subs. 8), a larger jurisdiction to grant injunctions junction.

than existed before is given in every case; and in my This statute gave the judges of the common-law opinion that enactment extends the general jurisdiccourts the power to issue injunctions in the cases tion given in common-law actions to all actions, specified (i. e., breaches of contract or other injury), to whether in equity or at common law. The result prevent a repetition or continuance of the injury for therefore is that there is jurisdiction in a proper case which suit was brought.

upon interlocutory application to restrain the further By the Judicature Act of 1873 (36 & 37 Vict., ch. 66, publication of a libel." $ 17), it was enacted that the high court of justice But neither the statute law of this country nor any should have and exercise “the jurisdiction, which at well-considered judgment of the courts has introthe commencement of this act was vested in, or pap- duced this new brauch of equity into our jurispruable of being exercised by all or any one or more of dence. There may be a case or two looking that way, the judges in (the cominon law) courts respectively, but none that we deem of sufficient authority to jussitting in court, or in chambers, or elsewhere, when tify us in assuming the jurisdiction. The authority acting as judges or a judge in pursuance of any stat- of the Supreme Court of Massachusetts, in the cases ute law, or custom, and all powers given to any such of Boston Diatite Co. v. Florence, 114 Mass. 69; Whilecourt, or to any such judges or judge by any statute, head v. Kitson, 119 id. 484, is flatly against it. So also and also all ministerial powers, duties and authori. are the New York cases of the New York Juvenile, etc., ties, incident to any and every part of the jurisdiction Society v. Roosevelt, 7 Daly, 188; Brandreth v. Lance, 80 transferred.”

8 Paige, 24; Munger v. Dick, 55 How. Pr. 132; also As the bigh court of justice, established by the Ju- the Georgia case of Caswell v. Cent. R. Co., 50 Ga. 70;

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