text:
    George H. Gamble’s Estate.
    By the common law, on the marriage of a man with a woman seised in possession of an estate of inheritance, the husband became seised of an estate of freehold in her right. On the birth of issue capable of inheriting the estate, the husband then became tenant by the curtesy initiate, and from thence seised of the land for life in his own right. But his estate was not consummate until the death of the wife.
    By the statute of descent and distribution in this state, the husband’s right as tenant by the curtesy shall take place although there be no issue of the marriage, in all cases where the issue, if any, would have inherited.
    This interest of the husband could be sold by him; or levied upon and sold by a judgment-creditor for his debts.
    But by the Act of 1848, in relation to the rights of married women, this the husband cannot do. If the wife dies before the husband intestate, seised of an estate of inheritance, he will be entitled to enjoy the same during his life, in the same manner as a tenant by the curtesy consummate at common law. But during the life of the wife, he can neither sell, lease, charge, nor in any way affect her real estate, having no sort of interest therein; nor future interest, except as distributee under the intestate law. And such is the true construction of the Act of 1848.

      July 15.
    All the facts necessary for a full understanding of the point decided by the Court, are sufficiently stated by the Judge who delivers the opinion.
   The opinion of the Court was delivered by

King, President. —

This case comes before the Court on exceptions to the report of an auditor, appointed to distribute the proceeds of the real estate of George H. Gamble, deceased, sold under pro* ceedings in partition. At the death of the decedent, in July 1845, his real estate descended to his eight children, one of whom, Augusta, on the 14th of October, 1848, intermarried with Oharles D. Dickerson. On the 15th of December, 1849, a judgment was obtained by Daniel Price against Mr. Dickerson. Price now claims that the portion of the proceeds of her father’s estate belonging to Mrs. Augusta E. Dickerson, shall be set aside during the life of her husband Charles D. Dickerson, in order that Price’s judgment against him may be satisfied from the interest thereof. This claim is founded upon the supposition that Dickerson had such an interest in his wife’s real estate, as was bound by the lien of Price’s judgment, according to the true construction of the Act of the 11th of April, 1848, “ to secure the rights of married women.” This law declares “ that every species and description of property, belonging to a single woman, shall continue to be the property of such woman, as fully after her marriage as before; and all property which shall accrue to any married woman during coverture, by will, descent, deed of conveyance, or otherwise, shall be owned, used, and enjoyed by such married woman as her own separate property; and the said property, whether owned by her before marriage, or which shall come to her afterwards, shall not be subject to levy and exetion for the debts and liabilities of her husband, nor shall such property be sold, conveyed, mortgaged, transferred, or in any manner encumbered by her husband, without her written consent obtained, and duly acknowledged before one of the Judges of the Court of Common Pleas, that such consent was not the result of coercion on the part of her husband, but that the same was voluntarily given, and of her own free will.”

Before the passage of this law, a judgment obtained against a husband bound the wife’s land to the extent of his interest therein, either as tenant of the freehold in right of his wife, or as tenant by the curtesy initiate ; and if her land had been converted into money, under circumstances like the present, the judgment-creditor of the husband would have been entitled to the possession of the fund, and to take the produce of it during the husband’s life, giving such security for the ultimate restoration of it to the wife, or her representatives, as might be directed by the proper Court. Lancaster Bank v. Stauffer, 10 Barr, 398. This is precisely what is asked of us now. If this request is acquiesced in by the Court, the effect will be a practical repeal of the provisions of the act of April, 1848, so far as respects the liability of the real estate of a married woman to the debts and responsibilities of her husband. This certainly would be alike inconsistent with the letter as with the spirit of the statute. It would be against the letter, because that declares, that the property of the wife “shall not be subject to levy and execution for the debts of the husband,” and that it “ shall not be encumbered in any manner by him without her consent.” It would be against the spirit of the act, which was and is to guard the property of the wife against the effects of the misfortunes, the follies, or the vices of the husband, and to secure to her the enjoyment of her own estate, unless she voluntarily parts with or encumbers it for her own purposes.

A claim, therefore, so apparently at issue with the letter, principle, and policy of a statute law, would hardly have been made in a Court of justice, unless something could be found in the statute giving it some colour of plausibility. Accordingly, this is supposed to be discovered in the proviso to the 10th section of the act. This section enacts, that the real estate of a married woman dying intestate “ shall be distributed as is provided for by the intestate laws of this Commonwealth : Provided that nothing contained in this act shall be deemed or taken to deprive the husband of his right as tenant by the curtesy.” This proviso, it is contended, from the generality of its expression, secures to a husband all his former rights in his wife’s estates of inheritance, as tenant by the curtesy. If this position is sound, then this proviso makes the general provisions of the law inoperative, so far as respects the rights which the common law and our statute of descent and distribution formerly gave the husband in his wife’s lands of inheritance. Let us briefly inquire what these rights were. Such an inquiry will enable us the better to ascertain what was meant by the legislature in employing the general words of the proviso of the 10th section of the act.

By the common law, on the marriage of a man with a woman seised in possession of an estate of inheritance, the husband became seised of an estate of freehold in her right; on the birth, however, of issue of the marriage, capable of inheriting the estate, the husband became tenant by the curtesy initiate, and from thence seised of the land as tenant for life in his own right. But his estate did not become consummate until the death of the wife; although it had, after issue born, such a commencement as was respected by the law for many purposes. After issue born, the husband alone did homage and became tenant to the lord paramount. And, if, under such circumstances, the husband made a feoffment of the land, and afterwards the wife died, the heir of the wife could not, during the life of the husband, recover the land from his feoffee: Co. Litt. 30 (a). A change, however, was made in the nature of the husband’s curtesy interest by our statute of descent and distribution, which declared that a husband’s right as tenant by the curtesy shall take place, although there be no issue of the marriage, in all cases where the issue, if any, would have inherited.” This assimilated our law, as to the husband’s curtesy, to the custom of gavelkind, where a man might be tenant by the curtesy without having any issue born: Co. Litt. 30 (a). That our statute of descents and distributions dispensed with the birth of issue as a constituent to curtesy initiate, seems to be the opinion of the Court in The Bank v. Stauffer, 10 Barr, 399. If this is so, and I can see no reason to question the position, then, independent of the effect of the Act of the 11th of April, 1848, a husband can, immediately after his marriage, sell his wife’s land, and the purchaser will hold the land during the life of the husband. And of consequence, a purchaser of the husband’s interest in the wife’s land, at sheriff’s sale, under a judgment against the husband, will obtain an interest to the same extent.

Was it then the intention of the legislature, in conserving the husband’s curtesy in the event of the death of the wife intestate, seised of an estate of inheritance, to leave this species of estate untouched by the law and in full vigour, or was it the intention simply to give him an estate for life in the nature of an estate by the curtesy consummate in lands of inheritance, of which his wife died intestate ? We are of opinion that the latter was the legislative intention, and for these reasons: Wirst, because of the collocation of the proviso, which is found in a section prescribing the disposition of the wife’s estate in case of her intestacy; indicating, therefore, that this provision in favour of the husband was part of a general scheme for the disposition of the wife’s real estate, should she die without making any special disposition thereof. Second, because, by a previous section of the same law, power is given to a feme covert to dispose of alt her estate by will, without any reservation of any supposed interest of her husband therein, either as tenant by the curtesy or otherwise. Now if, by the proviso of the 10th section, it was intended to protect the husband’s curtesy in the wife’s estate in the absolute sense of the term, the legislature would hardly have, in the same law, given her the power to dispose of the whole estate by will, and thus enabled her to defeat at her pleasure that estate which it is supposed they intended to conserve to the husband. Third, because a construction given to the 10th section of the Act, securing to the husband all his previous common and statute law rights in his wife’s lands, as tenant by the curtesy initiate, would enable the husband to sell such lands and convey to the purchaser an estate therein for his, the husband’s, life, or to encumber them by mortgage or judgment to that extent; which would exactly defeat the policy upon which the law securing the property of married women is founded, which was to protect the property of the wife against any act of her husband, done without her consent, tending to deprive her, during her life, of the use and enjoyment of her own estate. For these reasons, we are of opinion that the proviso of the 10th section of the Act of April 11, 1848, means no more than this, that if the husband survives his wife who dies intestate, seised of real estate of inheritance, he shall be entitled to enjoy the same during his life, in the same manner as a tenant by the curtesy consummate at common law. That during the life of his wife, he can neither sell, lease, charge, or in any way affect, her real estate, having no sort of present interest therein, nor any future interest other than any distributee under the intestate laws, whose interest in the estate distributable under those laws comes into existence only on the death of the owner, without having made any other disposition of his estate. From these positions it follows that if the wife’s real estate during coverture is turned into money by act of law, such as a sale consequent on a decree for partition, or in any other manner, neither the husband nor any of his judgment-creditors has any claim on the proceeds of such real estate, which belong absolutely and exclusively to the wife.

It will be seen that the judgment of the Court is founded on the construction given by them to the Act of the 11th of April, 1848, and not in reference to any supposed effect of the Act of the 22d of April, 1850, on this ease. This act declares, “the true meaning of the Act of the 11th of April, 1848, is and hereafter shall be, that the real estate of any married woman in this Commonwealth shall not be subject to execution for any debt against her husband on account of any interest he may have or may have had therein as tenant by the curtesy, but the same shall be exempt from levy and sale for such debt during the life of the wife.”

This section appears to have been passed to meet the case of Lefever v. Witmer, 10 Barr, 505, in which the Supreme Court held, that the act to secure the rights of married women does not divest the right of a creditor, who had commenced suit, to have satisfaction out of the husband’s estate in the wife’s lands; the Court there declining to give the act a retroactive operation against a creditor who had brought an action and incurred costs at the time of the enactment of this statute, when there was no law to forbid the pursuit, with a view to obtain a lien and satisfaction out of the husband’s curtesy. This law of 1850 has no relation to the present case. ' Here the marriage of Augusta E. Gamble to Charles D. Dickerson, and the judgment against the latter, took place and was rendered after the Act of April 11,1848, securing the rights of married women. We think we have shown Charles D. Dickerson never had any interest in his wife’s land which he could dispose of by conveyance, or encumber by lien ; and hence the Act of 1850, which gives a retroactive operation to the Act of 1848, has not, as the auditor seems to suppose, any relevancy to this case, which stands on the simple ground of the true intent and meaning of the 'proviso of the 10th section of the Act of 1848, taken in connexion and considered with all the other parts of that law, and the policy that led to its enactment.

Exception overruled, and report confirmed.


source: Caselaw Access Project

author: PARSONS, Judge. —

license: Public Domain

text:
    Sutcliff v. Isaacs.
    There is a class of cases where a Court of Equity will interfere by way of injunction, for the purpose of restraining the commission of irreparable injury to the property of him who has just ground for complaint. But it is not every case which would furnish a right of action against a party for a nuisance, which will justify a Court of Equity in granting an injunction.
    To authorize the Court thus to interfere, the injury must be shown to be such, as from its nature is not susceptible of being adequately compensated by damages at law; or by a continuation of the same, a permanent injury would ensue, or occasion a constantly recurring grievance which could only be prevented by an injunction.
    Where a Court of Equity sees that the injury might be irreparable, by the loss of health, loss of trade, or a destruction of the means of living, from the erection of a building, its jurisdiction will be exercised for preventing the injury.
    If one should build so near the house of another as to darken Ms windows, against the clear rights of the latter, either established by contract or ancient possession, a Court of Equity will interfere by injunction to prevent the nuisance as well as to remedy it, if already done, even if an action for damages would lie.
    It is clear, if one should attempt to construct a party-wall upon the land of another, without first having a survey by a regulator, in pursuance of the Act of Assembly regulating party-walls, a Court of Equity would interfere by way of injunction.
    But when a survey has been made in pursuance of the Act of Assembly, with notice to the other party, and no appeal is taken within the period prescribed by law for taking the appeal, and the building has been commenced, the Court will not grant an injunction to restrain the defendant from prosecuting his work. All that he does is in pursuance of legal authority. The regulator in the first instance is empowered to decide upon the rights of the parties.
    It is a neglect not to appeal. To authorize a Court of Equity in granting an injunction, it must clearly appear that the injury complained of is illegal, and without the semblance of legal authority. Nor will the Court grant an injunction pending an appeal frem the decision of the regulator.

      Aug. 24.
    This was a bill in equity, filed by Thomas Suteliff against Aaron Isaacs, setting forth that the plaintiff is seised in fee of a certain lot or piece of ground situate on the east side of Second street, &c., in the district of the Northern Liberties, in the county of Philadelphia. That the said messuage is of brick, and hounded on the north by a lot of ground with a messuage thereon erected, owned by said Isaacs. The length of the lot was stated in the bill, also that the buildings on the lot of the plaintiff were eighty-five feet in length; that the building in front occupied the whole breadth of said lot for forty feet in depth; that the remaining part of said lot, and the building thereon erected, was about forty-five feet, and but fifteen feet in width. That the remaining part of said lot of ground (viz.) five feet in width, and forty-five feet in length, was reserved, when the said building was erected, for light, air, and other conveniences, and for 'the free use and enjoyment of said premises; nor could it be used in any other manner, or for other purposes, without serious injury and detriment to the premises.
    The bill then averred that the defendant, the owner of the next adjoining lot of ground, has commenced and is now continuing to build upon, and therein is trespassing upon a portion of that part of the complainant’s lot of ground which he had reserved for light, air, &c. That said Isaacs is building in rear of his house erected in front on Second street, a messuage sixteen feet in length, and four and a half inches upon the lot of the complainant.
    That by such erection, the defendant is depriving him of the free use and enjoyment of his lot. and piece of ground which he has reserved for light, air, and other conveniences to the messuage now in his occupation, and that the said messuage so being erected does materially and irreparably injure him, the plaintiff, in the free use and enjoyment of his said messuage and tenement; nor could the injury be redressed otherwise than by the removal of the building which the said defendant is about erecting.
    There was then a prayer in the bill that he be restrained by an injunction from the erection of said building, the four and a half inches on the land of the complainant.
    Notice was given, and a motion was made for a special injunction to issue for the purpose of preventing the defendant from the prosecution of the work, and the erection of said building.
    The defendant appeared by his counsel, and in person filed a special affidavit, and denied that he was building on the land of the complainant to which he had any title against him, the defendant, but admitted that he was erecting a kitchen adjacent to his front dwelling, and alleged that it was now completely built, being roofed in and finished with the shutters, and averred that he had erected salid kitchen according to a survey and regulation, as made by the surveyor of the district, in pursuance of law.
    It was admitted, on the hearing of the motion for the injunction, that a front building was first erected on the lot of the defendant, which extended back about forty feet.
    That subsequently to this, the house on the lot of the plaintiff was bihilt, and the front part thereof was about the same length, when a recess of five and a half feet upon the dividing line was made, and then the back building was erected. That the defendant, in now erecting his back building, was only extending it on the line with the front building. Also that before he began he called the surveyor of the district, with notice to the plaintiff, who, on the 6th day of July, regulated and established the line where said back building was to be placed by said defendant, and that from his decision there had been no appeal.
    The motion was argued by Mr. Finletter for the plaintiff, and Mr. Webster for the defendant.
   The following opinion was delivered by

PARSONS, Judge. —

This case comes before the Court on a motion for a special injunction to restrain the defendant from erecting his back building four and a half inches on the land of the complainant, in pursuance of the decision of a surveyor and street regulator, whose duties are pointed out by the Act of Assembly.

In the consideration of this case, various questions arise: and, first, when will a Court of Equity grant an injunction to restrain one from committing an injury on private property, or against a private nuisance ?

The rule seems to be this, with regard to private nuisances: that there is a class of cases where a Court of Equity will interfere, by way of injunction, for the purpose of restraining the commission of irreparable injury to the property of him who has just ground for complaint: Coulson v. White, 8 Atk. 21; 2 Story’s Equity, § 925, p. 204. But it is not every case which would furnish a right of action against a party for a nuisance, which would justify a Court of Equity in granting an injunction to redress the injury or' remove the annoyance.

But, to justify the Court in granting an injunction to restrain a party in his acts, the injury must be shown to be such, as from its nature is not susceptible of being adequately compensated by damages at law, or by a continuation of the same, a permanent injury would ensue, or occasion a constantly recurring grievance, ■which could only he prevented by an injunction: 2 Story, 204. Or, in the language of Lord Eldon in Attorney-General v. Nichols, 16 Vesey, 342, The application of a power to prevent, as well as remedy an evil, for which damages more or less would he given in an action at law.” Yet it has been said that every common trespass is not the foundation for an injunction; as where it is temporary, or the injury only contingent. Yet it is said in Coulson v. White, 3 Atkyns, 21, “ If it is continued so long as to become a nuisance, the Court will interfere and grant an injunction to restrain the person from committing it.” Particularly, as I understand the rule, if the injury is irreparable or permanent.

But the mere diminution of the value of property by the nuisance, without irreparable mischief, will not furnish sufficient ground for equitable relief: 16 Vesey, 342; Winstanley v. Lee, 2 Swanst. 336. On the other hand, it is said by the Master of the Rolls in the last case, where a Court of Equity sees that the injury might be irreparable, by the loss of health, loss of trade, or a destruction of the means of living might ensue from erecting a building, its jurisdiction would be exercised for preventing the injury. It would be granted in furtherance of justice and the violated rights of the party: 2 Story, § 926, p. 205. Thus, if a party should build so near the house of another, as to darken his windows, against the clear rights of the latter, either established by contract or by ancient possession, Courts of Equity will interfere by injunction to prevent the nuisance, as well as to remedy it, if already done, although an action for damages would lie at law; and for this reason, in many cases the damages would in no just sense be deemed an adequate relief in the case: Eden on Injunc. 231-32; Buck v. Stacy, 2 Russ. R. 121. And it is said, whoever comes into equity on such a right must found it either on the defendant’s building so as to stop ancient lights, or else on some agreement, either proved or reasonably implied; that a diminution in the value of the premises is not a ground; and that the Court will not interpose on every degree of darkening ancient lights: Bathurst v. Burden, 2 Brown’s Ch. Rep. 65; Attorney-General v. Dougherty, 2 Vesey, Jr. 453; Cherington v. Abney, 2 Vernon, 646; Corporation of N. York v. Mapes, 6 John. Ch. Rep. 46.

And I think it is clear, if one should attempt in this city to construct a party-wall on the land of another, without first having a survey by a regulator in pursuance of the Act of Assembly regulating party-walls, this Court would interfere by injunction.

. The present case, however, does not come within the rule above stated. In the present instance, a survey has been regularly made by ’a proper officer, and no appeal has been made from his decision within the time prescribed by law; and in pursuance thereof, the defendant has gone on and erected his back building, two stories high, before the subject is brought to the attention of the Court. Under such circumstances, will the Court interpose by way of injunction ?

This leads us to the consideration of the Act of Assembly regulating party-walls.

The Acts of 1771, in relation to the regulation of streets in the Northern Liberties, 1 Smith, 318, and the Act of the 16th of March, 1819, incorporating said district, have, both in substance and almost in language, adopted the provisions of the Act of the 26th of August, 1721, regulating party-walls in the city of Philadelphia, which are familiarly known to most of our citizens. The Act of 1721 authorizes the appointment of surveyors or regulators of streets, and empowers them to “ enter upon the lands of any person or persons, in order to set out the foundations, and to regulate the walls to be built between party and party, as to the breadth and thickness thereof, which foundations shall be equally laid upon the lands of the persons between whom such party-wall is made, and the first builder shall be paid and reimbursed by the builder on the adjoining lot, one moiety, or half part of the said party-wall, or so much thereof as the builder on the adjoining lot shall have occasion to make use of, before he shall in any wise break into the same,” &c. A penalty is imposed, if any one shall build without first obtaining such regulation. And the fourth section provides, “ that, if either party between whom such foundation or party-wall is to be made shall conceive themselves aggrieved by any order of said regulators,” an appeal is given to the next Court of Common Pleas.

In the present case, the foundation wall of the building now complained of was regulated by the proper officer, in pursuance of the law. Put it is contended.that his decision was erroneous; that inasmuch as the building on the front of the lot had been first erected, and the plaintiff having erected his front building adjoining, and then made a recess of five feet, so as to admit light and air to his back building, the street regulator could not legally extend the line of the front building on the defendant’s lot four and a half inches over upon the land of the plaintiff, so as to enable the defendant to erect a back building in part upon the plaintiff’s lot, still further obstructing his lights, and giving him the privilege of using said party-wall, a right which he never could avail himself of, and which is only a continued injury to him and the full enjoyment of his property.

This is a very important and interesting question for the city and county of Philadelphia, and on which I am not now disposed to express any opinion — whether the regulator was right or wrong in thus regulating the party-wall of the defendant’s back building. If the plaintiff thought it was wrong, and he felt himself aggrieved, he should have appealed to the Court of Common Pleas, when the question would have come directly before the Court, and the rights of the parties been settled.

The question now for decision is this : The defendant having obtained the decision of a competent officer in his favour, on a point for his determination, and no appeal having been taken therefrom, when the plaintiff had this remedy, will this Court interfere by way of an injunction to stay the defendant from erecting a building in pursuance of what is primá facie a right, even if the plaintiff should sustain an injury thereby ? On this point the Court have no difficulty. In our opinion, an injunction should not be granted. The plaintiff has not brought his case within any of the rules to be found in the books where Courts of Equity have interfered to prevent a lasting injury to the freehold, because all that the defendant has done is in pursuance of legal authority.

The parties submitted their rights and claims to a regulator, who was in the first instance empowered to decide upon them. In his determination both parties acquiesced, instead of appealing to a higher tribunal. Now, if I was thoroughly convinced that this decision was wrong, still a Court of Equity would not feel authorized to exercise its extraordinary power of injunction in a case like this; where it would seem the plaintiff thought for a while the adjudication was correct; when he took no appeal; saw the defendant lay the foundation of his building, rear the brick work for two stories, and makes no complaint until the roof is about to be put on, and then seems to think he will be injured by the act.

A Court of Chancery never tolerates laches or negligence of rights in any one. To authorize a Court in granting an injunction, it must clearly appear that the injury complained of is illegal, and without the semblance of authority. But the plaintiff has shown no such case here, and therefore we must refuse to interfere by way of special injunction.

In addition to the reasons already given, why the present application should be refused, it may be well to advert to what has already been decided by this Court. In the case of Perot v. Packer, 2 Ashm. 164, it was decided that on an appeal from the determination of the regulators, one verdict and judgment was conclusive of the rights of the parties, and that the only remedy was by an appeal within thirty days ; that the trial on such appeal settled the rights of all concerned; and that the only remedy was that given by statute.

The motion, therefore, must be refused.

       It was held in an anonymous case, in which no written opinion was given, that the Court would not grant an injunction, even where an appeal had been taken from the decision of the regulator, on notice to all parties; but they would suffer the appellee to proceed, at the hazard of ultimately having his building removed, in case the adjudication of the surveyor should be decided, on a final hearing of the cause, to be erroneous.


text:
    Hill et al. v. The Commissioners of Kensington et al.
    The Court of Common Pleas sitting in equity under the Act of 1836, have jurisdiction over municipal corporations as well as private, when grossly abusing their privileges, and will, in a proper case, interfere by way of injunction. A Court of Chancery will not, on a motion for an injunction, decide doubtful questions of law or disputed questions of fact, nor exercise the authority of granting an injunction in doubtful cases. An interlocutory injunction is always a matter resting in the sound discretion of the Court.
    It is not where there is only a seeming violation of law by the officers of a municipal corporation, that a Court of Equity will interfere by way of special injunction against them. Where the officers of a corporation are acting within their chartered rights, and in the exercise of a sound discretion, an injunction will not be issued to restrain them for a violation of a contract between the corporation and a third person.
    Nothing but a palpable disregard of the law would induce the Court to interfere when the officers of a corporation are exercising a power submitted to their sound discretion. Where, however, such officers are assuming a power not delegated to them by law, then a Court of Chancery considers them no longer acting under legal authority, but treats them as individuals acting without legal authority. But it is only when they transcend their legal limits, that they are amenable to a Court of Equity.
    Courts of Chancery will permit, in certain cases, one or more persons to represent in a suit all who have similar interests; but it is not to be considered a general rule. In all such cases, it must appear that the relief sought by Mm who sues, is in its nature beneficial to all those whom he undertakes to represent. Where that does not clearly appear, the bill will not be entertained.
    Where the Court, for convenience, and from the difficulty of bringing all the names of those interested upon the record, have suffered one or more to bring their bill, it has been usually in those cases where the act complained of was a violation of law, breaches of public trusts, &c. But it cannot always be claimed as-an absolute right.

      Sept. 7.
    This was a bill in equity, filed by John Hill and fifteen others, who state that they are inhabitants and residents of, or owners of property, and tax-payers of the district of Kensington, against the Commissioners and inhabitants of the Kensington District : against Solomon Wagner and others named as the Commissioners, John Taylor, treasurer, also Frederick A. Yandyke, and Jacob W. Colladay. It sets forth, that the Commissioners and inhabitants of said district, being desirous to introduce water from the river Delaware into said district, entered into a contract with Jacob W. Colladay, who, in consideration of the sum of $140,000, to he paid him in scrip or certificates of said district, in the manner set forth in said contract, covenanted and agreed to erect and construct the water-works required by said Commissioners in the manner set forth in certain specifications attached to the contract, which was made a part of the bill. It was also stated that Colladay gave bail as required, that F. A. Yandyke and one Heberton were his sureties, &c. And that in pursuance of such contract, Colladay commenced and proceeded in the construction of said water-works, had progressed therein, and made large contracts with divers persons for materials for the prosecution thereof, and had in all respects faithfully complied with his contract, and always was treated by said Commissioners as the contractor, who had delivered to him certificates of stock from time to time, in part payment of the work done upon the contract.
    The bill then charged that on the 3d day of August, 1850, F. A. Vandyke caused to be presented to said Commissioners a communication of that date, wherein he declared that said Colladay had made and executed to him an assignment or transfer of said contract, and to the certificates of stock to be issued thereon. That on the 5th day of said month, Colladay was informed thereof, and also that a committee of said Commissioners would meet that day for the purpose of ascertaining to whom the said contract belonged. That Colladay appeared and protested against such proceedings, or any action whatever by said committee and Commissioners; and then tendered his readiness to proceed with the contract to its completion, and his intention to hold said Commissioners liable on said contract.
    It was then charged in the bill that Colladay had made no assignment of the contract to Vandyke; that some powers of attorney had been executed by him to said Vandyke, giving him authority to transfer some stock, but for no other purpose. Also that said committee did go into an examination of the matters. That a meeting of the Board of Commissioners was held on the 6th day of August, when said Colladay appeared and presented a protest in writing, against the proceedings of said Commissioners and committee, and tendered his entire willingness and readiness to fulfil his contract in every particular, and offered, if desired, good additional security for its performance, and indemnity against any claim of said Vandyke or any other person; and also notifying them that he intended to proceed with his work and hold the Commissioners liable for damages, and for the payment of the whole sum under the contract. He also revoked any, and all powers of attorney given to said Vandyke.
    It was then averred in the bill that, notwithstanding all these notices, &c., the Commissioners adopted a resolution declaring that said Vandyke was the contractor, and owner of said contract, and that upon his giving indemnity, all further issues of certificates of stock, in pursuance of said contract, should be made in the name of said Yandyke. That subsequently, said Oolladay had asked for instructions as to the manner of executing some part of the work from said Commissioners, in pursuance of the specifications, but that they were refused; and also to recognise the contract with him; and the bill further charged that the treasurer had refused to permit a transfer of stock previously issued to said Colladay in part payment under said contract, and by him sold to third persons for value, and that unless restrained by the Court, said Commissioners intend to carry out their resolution, and refuse any future payments to said Colladay; but to recognise and deal with said Yandyke only as the contracting party; all of which is averred to be injurious to the credit of the district, unjust and fraudulent on the part of the corporation, producing a waste of moneys arid funds belonging to the district. That unless restrained, they will permit Yandyke to conclude his contract, and then issue their certificates to him, and if so, the district will be obliged to pay damages to said Col-laday to the extent of the full payment, as though he were to complete his contract; all of which would greatly and unnecessarily increase the burdens and taxation to be paid by the said complainants and others, as residents and tax-payers in said district.
    The bill contained twenty-one interrogatories, and prayed that the corporation, and the Commissioners by name, and the treasurer, be enjoined by the Court from carrying into effect the resolution adopted by the Commissioners on the 6th of August; and also that they be enjoined and restrained from interfering with, or preventing said Colladay in any way in the performance of his contract aforesaid, and that they be restrained from refusing to recognise and deal with him as the contracting party.
    On notice to the respondents being given, a motion was made for a special injunction. On the day of hearing, numerous affidavits were presented; all of which were objected to and not formally received. One by the President of the Board of Commissioners, in which he stated that proof was made before the Board of Commissioners, that when the original contract was bid for and taken by Oolladay, although in his own name, yet in truth and fact it was for Yandyke, and that Colladay was his mere agent and trustee; that he had no interest in the contract, but was merely to have a certain sum of money for his services in making the bid; that subsequently, on the 30th of May, 1849, Colladay assigned all his interest in said contract to Yandyke, who received the certificates of stock issued therefor.
    That when the estimate made by the engineer for July was to be paid, Colladay drew the money (although he had previously given a power of attorney to Vandyke to draw the same); and that out of $11,200, which he had thus obtained, but one thousand thereof had been applied to payment of the sub-contractors and labourers who were doing the work, and that they refused to labour any further unless Vandyke assumed the control and responsibility of the work, and that it was feared under these circumstances that the works would not be completed by the 1st of January, 1851, the time specified in the contract; that it was under these circumstances the board felt it to be their duty to pass the resolutions referred to in the bill; and that Vandyke had given satisfactory security to indemnify the corporation from all damages which might accrue in relation to the change of contract in the premises, &c.
    There were also affidavits of Vandyke and Colladay; the one alleging that Colladay was not the original contractor in truth and in fact, and alleging an assignment: the other denying all these assertions, and alleging that an assignment had not been made ; that a power of attorney, signed by Colladay to Vandyke in blank, had been altered, and in it was inserted what purported to be an assignment. While these affidavits were offered to the Court, none were noticed but that of the President of the Hoard of Commissioners; the others not being admissible in practice on such a preliminary hearing as the present.
    The motion for the injunction was argued by Messrs. F. D. Tarr, 0. Fallon, and 0. Gruillou for the plaintiff; and M. M. Phillips and J. M. Read for the respondents.'
    It was contended in support of the motion that the tax-payers had a right to file the bill; that the Commissioners were trustees for the complainants. And that the Court had jurisdiction to grant the relief prayed for.
    It was further contended that these were proper parties to the bill. That the Commissioners had assumed powers not given them by the Act of incorporation. It was alleged they were committing a breach of public trust; that they were wasting or misapplying the public funds, and this was an implied breach of their trust.
    To sustain the several positions assumed in the argument, they cited 8th sect, of the Act 16th June, 1836, Dunlop, 835 ; Hagner v. Heyberger, 7 W. & S. 104; 10 Barr, 176; 5 Law Mag. 92; 1 Cases in Ch. 206 ; Ward v. Grrisdwill, 16 Com. Reps. 593 ; 3 Mason, 115 ; Angelí & Ames on Corp. 150-1; King v. Watson, 2 Term R. 204; Doct. & S. chap. 19; Equity, page 103, note 10 ; 2 Atkyns, 400; 6 Simons, 214; Robinson v. Smith, 3 Paige, 222; 1 Yesey & Reams. 246-7; 2 Story’s Equity, § 955; last ed. note a; 4 Myl. & Craig, 254; 6 John. Chan. 160 ; 7 W. & S. 105; 6 John. Ch. 360.
    Mr. Phillips, for the respondents,
    alleged the hill was by sixteen owners of property in the district, or tax-payers, and as such the plaintiff are not proper parties, and have no right to control the Commissioners as constituents, and are not proper parties to apply for relief.
    It was contended that these sixteen inhabitants have no authority to enjoin the Commissioners or officers of the district. There is no equity on the ground of the complainants. Under the Act of 1836, municipal corporations are exempt from the jurisdiction of the Court sitting in equity. In the present case the right of the plaintiffs is defective, and therefore there is no equity in the complaint. By law the Commissioners are authorized to construct the works, and the citizens have no right to assume that damages will accrue. The Commissioners have a discretion.
    The complainants do not ask the fulfilment of a contract with Colladay, or for him: cited 1 Mylne & Keen, 154; 2 Mylne & Craig, 123; 2 Merivale, 446; 6 Simons, 340.
    Mr. Read contended that the Board of Commissioners have the full powers of the corporation. By the Act of 1848, they are authorized to construct the water-works, and the Commissioners are protected in an honest execution of their trust, and exercise of their discretion. They are the persons to control the work, and have the right to change or alter in any way the contract, which is deemed most for the interest of the district; and in the exercise of their powers are clothed with an extraordinary discretion.
    Some of the plaintiffs, as tax-payers,. have no right to vote; do not reside in the district. The mischief to Colladay has not arisen, and may never occur; therefore, these inhabitants have now no right to complain. The contract has been assigned, and it is alleged that the assignment is a forgery. There is an ample remedy for all complained of in a Court of Law.
    Courts of Chancery have nothing to do with corporations as such, only in relation to charities. The Commissioners are acting in accordance with law, as they understand it, and in the exercise of an honest and sound discretion; and while so doing are not amenable in equity. There is no case where the inhabitants of a municipal corporation have ever filed a bill, none unless the Attorney-Grene-ral was made a party. There is no irreparable mischief, and therefore it is not a case for a special injunction, nor is there such a clear case of undisputed title as would induce the Court to interfere in this summary manner; he cited 1 Kyd on Corporations, 108; 2 Ibid. 186; Spence Eq. Juris. Court of Chancery, p. 33; 1 Spence, 501; Attorney-General v. Bank of Miag. 1 ITopldns, 354; Angelí & Ames on Corporations, 308; 3 Paige, 233; 1 Freeman Ch. Miss. Rep. 173; Attorney-General v. Wilson, 1 Craig & Phillips, 18; Foss v. Harboth, 2 Hare, 461, 490; 4 Mylne & Craig, 17; Mann v. Butler, 2 Barber’s Ch. Rep. 362; 1 Barber S. C. Rep. 19, 217; Lawrence v. Mayor of New York, 2 Barber, 578; Vorhees v. Harris, 1 Barber, 439; 18 S. & R. 378, 411; 13 Jurist, 641; 14 Jurist, 491; 7 Hare, 114 ; 13 Jurist, 602; Act 6th March, 1820, 6th April, 1848, §12; 7 Barr, 348; 2 John. Ch. 160, 384; Angelí & Ames on Corporations, 584, 630, 654.
   The following opinion was delivered by

PARSONS, Judge. —

In deciding the present motion, I shall not consider all the various questions which may arise in the cause hereafter, and which were discussed on the argument; but only express an opinion on those points which determine the fate of this application.

It is to be borne in mind, that Kensington District is a municipal corporation. Its corporate powers and jurisdiction are defined by the Act of the 16th of March, 1820, and subsequent Acts of Assembly. The corporate functions of this district are mainly executed by a Board of Commissioners, consisting of twenty-one members elected by the people.

By an Act of Assembly passed the 6th of April, 1848, the Commissioners of the district of Kensington are authorized to construct suitable works, near the river Delaware, for the purpose of supplying said district with water, and to form such reservoirs as are deemed necessary for the reception of the water, lay pipes, &c. They are also authorized from time to time to borrow money, and pledge the faith of the district, for the purpose of accomplishing the objects contemplated by the law.

It is not denied that on the 30th of April, 1849, a contract was entered into by the Commissioners of said district in their corporate eapaeity with Jacob W. Colladay, for the entire construction of said water-works, for the sum of $140,000, and that he entered upon the execution of said contract; that the work has progressed Well under his supervision, until a difficulty arose in July last, ■which would seem to be mainly between himself and Yandyke, one of his sureties. Erom the view taken by the Court in relation to their decision on the present application, it is not deemed important to dwell much upon those controversies, or to decide what is the law in their various relations; nor shall I refer to them, only as it may be necessary incidentally, to illustrate the legal propositions which will be decided.

The first question which we shall consider is, whether this Court sitting in equity under the Act of the 16th of June, 1836, has jurisdiction in cases of municipal corporations ? That Act provides, among other things, that we “ shall have the supervision and control of partnerships and corporations, other than municipal corporations.” It was suggested by one of the counsel for the respondents (although not finally pressed), that, as a Court of Equity, we had no jurisdiction in relation to municipal corporations. Such is not the construction which has been given to this Act by the Court of last resort in this state. The 5th clause of the 13th section must be considered in connexion with other parts of the law. The language of this is comprehensive. It gives us an equity power for “ the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community, or the rights of individuals,” without restraint, or excepting municipal corporations. Hence I have no doubt, that if a corporation was grossly abusing its privileges, whether municipal or private, and encroaching upon the rights of .individuals, this Court would have authority to interfere by way of injunction.

Upon this principle the District Court of Pittsburgh, in the case of the Attorney-General v. Rush et al., decided in 1849, granted a perpetual injunction against the Mayor and Council of the city of Allegheny, and persons claiming under them, against the erection of buildings on a public square, which had been dedicated to public use by the original proprietors of that place, when the acts of the corporation were shown to be injurious to the public and the rights of individuals, as well as being in violation of law. This decision was, on an appeal, affirmed by the Supreme Court.

Nothing can be more clear, - than that there is a class of cases where this Court can hold a municipal corporation responsible for their acts, when exercising jurisdiction in equity, if a proper case is presented, and will grant an injunction to restrain them, as they would an individual.

Most of them are referred to by Judge Sergeant, in delivering the opinion of the Supreme Court in the case of Hagner v. Heyberger, 7 W. & S. 107, in which it is said, “ that if a public officer, municipal or otherwise, was destroying or about to destroy public books and papers, or materially injure the public interests, or embezzle or waste the public moneys or properties, or, in short, any act was doing or likely to be done, for which damages could not perhaps compensate, and the legal redress might be too tardy or ineffectual, which was in the nature of misfeasance, nuisance, waste, spoil or destruction of property, and the act was contrary to law and injurious to the community or individuals, a summary remedy is given by the strong arm of an injunction to stop it, or prevent its being done.”

. But does the present case come within the rule which has just been stated ? It is contended by the learned counsel for the complainants that it does. It is said that the Commissioners having entered into a contract with Colladay to pay him for the construction of the water-works, it is a violation of their agreement with him, to take the contract from him and give it to another. That it is in truth and in fact a violation of law. It therefore being a violation of law, the Court can and ought to restrain these Commissioners from doing the act.

In a ease where the act is clearly shown to be unlawful, and there can be no denial of the fact, it has been shown that the Court can and will grant an injunction, particularly where it affects the rights of individuals, and in certain cases the public at large. hTow it may be a violation of law for these Commissioners to take from Colladay his contract and give it to his surety or a third person, and it may not be. It may be injurious to the public, that is, the citizens of the district, or it may not be.

If, as alleged by Mr. Wagner in his affidavit, Colladay paid only $1000 out of the July estimate of $11,200 to the sub-contractors, those who were really doing the work, and those contractors declined working for him, and could be induced to go on only upon the assurance that Yandyke (who was the surety to them), would see them paid; if, as the Commissioners say through their President, they believed that the contract had been legally assigned by Colladay to Vandyke, then it is not clear that this act of the Commissioners would íe a violation of law, or the inhabitants would be subjected by the acts of their agents and representatives to any additional taxation.

ISTow, in order to ascertain the truth of the facts on this point, the Court, on this preliminary hearing on various affidavits, introduced by the respondents, and counter affidavits also, produced by the plaintiffs (a practice in Chancery which cannot be sanctioned only in special cases), must decide that these Commissioners have been guilty of a gross violation of law.

This I am not disposed to do. For I concur entirely in the observation made by Judge Grier, in the case of Parker v. Sears, (which was an application for a special injunction): “ The Court are not bound, in this stage of the cause, to decide doubtful and difficult questions of law, or disputed questions of fact, nor exercise this high and dangerous power (if exercised rashly) in doubtful cases, before the alleged offender shall have an opportunity of a full and fair hearing.” Perhaps the Court, on a final hearing of the cause, might be of the opinion that the act of the Commissioners was illegal, and perhaps we might be of a different opinion. And no principle of equity is better settled, than that the issuing of an interlocutory injunction is always a matter of sound discretion with the Court, and must depend upon the peculiar circumstances of each case.

It is equally clear that it is' not every seeming violation of law or right, that will authorize a Court of Chancery to issue an injunction against the officers of a private or municipal corporation. Where the officers of such a body are acting within the pale of their chartered rights, and, in the exercise of a sound discretion, should do an act which a judicial tribunal might determine was illegal, as by the violation of a contract, it does not necessarily follow, that the- Court would interfere by way of special injunction to restrain them, while they were seemingly acting in good faith, and for what they deemed the best interest of their constituents.

Let us apply this rule to the present case. It cannot be denied but that these Commissioners could contract for the erection of the water-works; and if, after a contract was made, they became convinced the contractor was not complying with the conditions of his contract, or without their consent had assigned it to another, and the work was not being carried on according to the stipulations of the agreement, and they apprehended that the interest of the district would be put in jeopardy thereby, these officers would be justified in taking the contract from him to whom it was first awarded, and giving it to another, even at the hazard of a lawsuit.

The Commissioners, under the facts alleged in the bill and affidavit, profess to have done nothing more. How, then, unless we attempt to decide the whole cause on this preliminary hearing, can we say they have done an illegal act, or that the tax-payers will have their taxes increased ? The law has referred this matter of the construction of the water-works to the officers of this corporation, and in the execution of the authority thus given, much is intrusted to their discretion, and not to the discretion of this Court; and, in my opinion, nothing but a clear and palpable disregard of the law would justify us in interfering with them. For they may be wiser in the exercise of their discretion than we would. I am free to say, that in this controversy between Colladay and Vandyke, it would have been far better that the Commissioners should have kept clear of it, unless, by their not interfering, these valuable public works would have been in danger. If they would, then no one oan doubt they would have been remiss in duty not to have acted. In the absence of any clearer light than we now have upon the subject, I am bound to presume the Board of Commissioners apprehended such danger. They may have erred in judgment; but in the present stage of the cause I am not disposed to say so.

In this view of the case, it'seems to me, we are elearly sustained by authority. In the case of Frewin v. Lewis, 4 Mylne & Craig, 254, the Lord Chancellor, in speaking of the jurisdiction of Courts of Equity over public functionaries, remarks, “ So long as they confine themselves within the exercise of those duties which are confided to them by the law, this Court will not interfere. The Court will not interfere to see whether any regulation or alteration which they may direct is good or bad; but, if they are departing from that power which the law has vested in them, if they are assuming to themselves a power over property which the law does not give them, this Court no longer considers them acting under the authority of their commission, but treats them, whether they be a corporation or individuals, merely as persons dealing without legal authority.” And the rule seems to be clear, that in all cases of incorporated bodies, such as canal or railroad companies, Courts of Chancery do not interfere, while they act clearly within the authority the law gives them, and it is only when they transcend those legal limits, that they are amenable to a Court of Equity by way of injunction: 4 Mylne & Craig, 256; Salmon v. Randall, 3 Ib. 439; 2 Story’s Eq. § 955, N. a.

In connexion with this view of the law, it is to be observed, that Colladay, whose rights it is alleged will be invaded by those acts of the Commissioners, does not complain. He does not ask that the officers of the corporation shall be restrained from doing what they claim they have a right to do under the circumstances of the case.

Have, then, these citizens any right to appear as parties and prosecute this hill ?

They have not, unless it can he clearly shown that the Commissioners have done, or are about to do, some act not authorized by law; or assuming some power not conferred by their a.ct of incorporation, or exercising a control over property which is not clearly given by statute, or invading the rights of individuals under the sembla,nee of corporate authority. In short, as we have endeavoured, to show, while the Commissioners confine themselves to the performance of those duties confided to them by the law, even if they err in their judgment, if their discretion is not wisely exercised, and their regulations or decisions may he such as men of greater wisdom, or more extended forecast, would not have adopted, still, unless they exceed their chartered limits, the Court will not interfere.

It cannot he well doubted that they had the authority to make the contract they did with Colladay, and it is equally clear, if he violated its terms and conditions, they would he justified in rescinding it, if, in the exercise of a sound discretion, they believed the great interests of their constituents demanded that it should he done.

I have been unable to find any case, and in the researches of the counsel for the plaintiffs, none was cited on the argument, where a Court of Equity had ever interfered to restrain the officers of a corporation in their making, changing, or rescission of contracts, while the law gave them full authority to deal in such agreements, or perform such acts. Now, the dissolution of a contract may become as important for the interests of the district as its creation.

The plaintiffs’ counsel, to sustain their position, rely upon the cases of The King v. Watson, 2 Term Rep. 204, Wood v. Dunmer, 3 Mason, 308, and Robinson v. Smith, 3 Paige, 222. But upon a careful examination of them, I do not think these support them in the view they have taken.

■ The first case was decided in a Court of law, and one of the grounds for the information was, that the acts of the defendants complained of were a gross abuse of their trust. But the Court desired the counsel not to discuss that point, as it might he a subject for an application to a Court of Chancery; and the cause was decided on other grounds, to wit, that the acts complained of were a high contempt of the administration of public justice, and the manner in which the proceedings were carried on was a libel.

- The case in Mason’s Reports was one where the acts complained of were a clear violation of the chartered rights of the company,. and the application of the funds of the hank to a distribution among stockholders, without paying the creditors and the noteholders, who were first entitled to the funds. And that of Robinson v. Smith was a case where it was alleged there had been a wilful abuse of the trust, and a wasting of money by a misapplication of the funds of the company in a way not given by the charter. Nor does the case of the Mayor v. Lawton, 1 Vesey & Beams. 243, in any degree favour the position assumed.

But there are numerous cases to show that a Court of Equity will not entertain a bill like the present, or (to speak in qualified terms) issue a special injunction. In the case of The Charitable Corporation v. Sutton, 2 Atk. 420, Lord Hardwicke, in speaking of the officers of a corporation for charitable purposes, observes: Now, where acts are executed within their authority, as respecting by-laws and making orders, in such cases, though attended with bad consequences, it will be very difficult to determine that these are breaches of trust. For it is by no means just in a judge, after bad consequences have arisen from such executions of their power, to say that they foresaw at the time what must necessarily happen, and therefore were guilty of a breach of trust.”

So also in the Atty. Genl. v. Utica Ins. Co., 6 John. Ch. Rep. 371, the whole reasoning of the Chancellor is upon the principle which has been indicated.

Whether Colladay could demand an injunction, had he filed his bill, is not a question now before this Court. At the last March Term of the Supreme Court, a case not unlike the present was before Judge Rogers, holding at Nisi Prius: a case which was not cited on the argument. It was the case of Schofield v. The Mayor and Councils of the city. The Councils, through their officers, had advertised under certain ordinances, inviting sealed proposals for .the cleansing of the streets, alleys, &c., of the city for one year. The plaintiff had made his proposals, was prepared to give the security required by the ordinance, and alleged in his bill, that under said ordinances the Councils were bound to give the contract to the lowest bidder who complied with the terms of their proposals, which the plaintiff averred he had done; but the officers did not award to him the contract, as they ought to have done; on the contrary, they gave it to another individual, who also was made a party to the bill,, at the price and sum of $600 more than that for which the complainant had offered to do the same work. The prayer in the bill was that the Mayor and Councils be decreed to give him the contract, and that they he enjoined from giving it to the other contractor, and that he be enjoined from pursuing the work.

It was also averred in the bill, that before the contract was awarded to the then contractor and one of the defendants, a notice was given to the Councils by the plaintiff that he would claim that the contract should be given to him as the lowest bidder.

An affidavit was filed by one of the members of council, who had the subject in charge, giving a copy of the bids, which showed that the plaintiff had bid lower than the contractor to whom the work was awarded; it was also stated therein, that the contract had been given to Eeltwell, who was a higher bidder.

The case was heard on a motion for a special injunction, as prayed for in the bill; but after a full hearing, the Court overruled the motion and refused the application. No written opinion was given by the Judge in the cause; but I am informed that it was upon the ground, that it was a mere matter of discretion to be exercised by those public functionaries, in relation to their contract; while acting in the line of their duty, a Court of Equity would not interfere with them in relation to their mere exercise of judgment.

One can perceive there might have been other reasons operating upon the mind of the Court. The case is applicable to the present in this particular, although a refusal to give the contract to Schofield might subject the corporation to an. action for damages, and thereby subject the inhabitants to an increase of taxation; yet the Court were not disposed to interpose in behalf of the lowest bidder to save the city from this supposed additional liability of taxation, or to compel a specific performance of the offer made by the officers of the corporation. .

Another question of great interest has been partially discussed on this hearing; and that is, whether the plaintiffs are proper parties to the bill, being merely citizens, and alleging that they are tax-payers.

It is, perhaps, unnecessary to express any direct opinion on this point, as the cause is for the present determined upon another ground. It may, or may not, be agitated hereafter. I will simply remark, that a practice has been adopted by Courts of Chancery, of permitting one or more persons to represent in a suit all who Rave similar interests; but it is not to be considered a general principle. It is only in certain cases where it can be. done. It was observed, in the case of Gray v. Caplin, 2 Sim. & Stew. 267, that in order to enable a plaintiff to sue on behalf of himself and others, who stand in the same relation with him to the subject of the suit, it must appear that the relief sought by him is in its nature beneficial to all those whom he undertakes to represent. Where that does not clearly appear, then the bill will not be entertained; and such was the case of Jones v. Del Rio, 1 Turn. & Rus. 297. This distinction is also recognised in the case of the Attorney-General v. Hulis, 2 Sim. & Stew. 67.

If it was clearly made to appear before us, on this application, that the Commissioners were not acting within the scope of their chartered powers, and that their acts would necessarily tend to increase the amount of taxation in the district, it would then probably be a case where these sixteen persons, or a less number, might sue on behalf of themselves and others, the inhabitants of-the district.

But if the Commissioners are correct in the view expressed by them as to the execution of the contract on the part of Colladay, then the other inhabitants will have no interest in the subject-matter of the bill, for then there will be no increase of taxation. And, perhaps, all the rest of the citizens of the district concur in the opinion expressed by the Commissioners, that it was for the general interests of the district that the contract with Colladay should be abrogated, and given to another. If so, then the principle applied by Lord Eldon, in the case of Jones v. Del Rio, ought to be adopted on the present occasion. That was a case where the plaintiff, being one of the subscribers to a loan of money to a foreign state, filed a bill on behalf of himself and all other subscribers to that loan, to rescind the contracts of subscription, and to have the subscription money returned; but it was held that the plaintiff was not entitled in that case to represent all the other subscribers, because it did not necessarily follow that every subscriber should, like him, wish to retire from the speculation, and every individual must, in that respect, judge for himself.

And I think it will be found in all this class of cases, where the Court, for convenience, and from the difficulty of bringing all the names of those interested upon the record, have suffered one or more to bring their bill, it has been where the act complained of was a violation of law, by disregarding chartered rights, or breaches of public trust, in the waste or mismanagement of public moneys; but I have been unable to find any case where the plaintiff complained only of acts which were within the sound discretion of public officers, or a question of policy, or regulation by such officers, that one or more, representing himself and others, has been recognised as a proper plaintiff to a bill. There may be such cases in the books, but they have not been presented by counsel, nor discovered by the Court.

It was ruled by this Court, in the case of Hassinger, 2 Ashm. 293, that, after an act of incorporation passed, those who compose the company are not known as individuals, and have no legal existence but as a corporate body, and could only be known through their corporate seal, and were not permitted to oppose the discharge of an insolvent debtor who had defrauded the company, while the president and managers were passive, and refused to act. Now, if this is the rule with regard to private or moneyed corporations, it applies with still greater force to municipal or public corporations. The same principle was held in the case of St. Mary’s Church, 6 S. & R. 505.

For the various reasons given, the application for an injunction is refused.


author: King, President. —

text:
    Waring v. Cram.
    If a partnership, after its termination Toy death, dissolution, bankruptcy, or otherwise, is continued by any portion of the associates with the capital or appliances of the firm; all profits derived from such continued business are part of the joint estate; and as such, are to be accounted for to all the partners, or their representatives.
    If one partner clandestinely carries on another trade, or the same trade for his private advantage, and in a manner injurious to the true interests of the partnership, he will be compelled in equity, to account for all profits made thereby.
    If one of several partners employ the partnership capital or effects, in a matter not the direct object of the association, he must account with his co-partners for the profits resulting from such an employment of the common effects. If the common stock and fund or capital of a co-partnership consist of labour and skill, as well as money, and, during the existence of the enterprise, either diverts that from the common obj ect to which it was pledged, and employs it for other productive purposes, either of the same or any other kind, he must bring the result into the common fund.
    Where a number of individuals formed an association for a specified term, to engage in mining for gold in California, and one advanced money — and the others agreed to proceed to the mines, and engage in the digging for gold, but when they arrived, the capital advanced being exhausted, and all abandoned the enterprise as fruitless, and two of them engaged in another and different employment of their labour; it was held that the associate who advanced the money, had no specific lien on the profits produced by such labour, as could be enforced in a Court of Equity. His remedy, if any he had, was by an action for damages against those who abandoned the association.
    The apparent weight of authority is, that an answer filed, after notice by the plaintiff, of an application for a special injunction, can only be used as an affidavit ; and the defendant cannot insist that, under such circumstances, the plaintiff is confined in his injunction to the equity confessed in the answer.
    A Court of Equity never awards a special injunction, except when the plaintiff shows a clear equity entitling him to the aid and relief asked for; nor is it ever awarded except in clear cases of right.

      Sept 28.
    This was a bill in equity filed by Hiram Waring against Smith Oram and Charles S. Cram, setting forth that in January, 1849, the complainant entered into an agreement with the respondents, and six others, whose names were mentioned, by which they formed an association for the purpose of carrying on the business of mining, and collecting gold and other minerals in California, under the name and style of the “Putnam Mining Company.”
    That by the terms of the agreement, the complainant was to furnish, at his own expense, to each of his associates (he remaining in this country), a passage to Chagres, in the steamer Falcon, and also advance them the sum of $1500, to be by them expended in defraying the expenses of their journey from thence to San Francisco, in California, and thence to the region of the gold mines; and that he would provide them also with a suitable outfit for proceeding to the region of the gold mines, and for undertaking their contemplated business on arriving at the gold region.
    That it was further agreed he would resort only to his share of the clear net profits of said business, for the repayment to himself of the sum advanced hy him for said purpose; and that he would deposit all the gold dust and ore sent to him by his associates in the Mint of the United States. That at the end of two years from the date of the agreement, he would pay for and provide a passage from California for each of said associates, or so many of, them as might desire to come to New York; and to keep just accounts of all articles of merchandise sent to said associates at prime cost, and of all expenses, for which he was to he paid, as provided in said agreement.
    It was also averred in the hill, that, in consideration of these stipulations on the part of the complainant, his said associates agreed to proceed at once to Chagres, and thence with all practicable speed to the region of the gold mines, in California; to apply the said $1500 towards the expenses of their journey to the mines, and upon their arrival would faithfully employ themselves in the business of mining and collecting gold and other minerals; and from time to time, as a safe opportunity might occur, to ship and send, consigned to the complainant, in the city of New York, such gold dust, ore, or. other minerals, as should he collected hy the parties of the second part to said agreement. And also that they would receive such articles of merchandise as should he sent them hy the complainant, and allow him therefor in the final settlement of the business and affairs of the association, and his expenses in the premises. And further, that the association should continue two years from the date of the agreement, and should not he dissolved hy the death of any or either of the parties, hut should he carried on in such manner and place in California as should he prescribed by a majority of the parties to the agreement. That if any one of them should become sick, he should be provided for at the cost of the association; and that, at the expiration of the term of two years, there should he a full settlement of the affairs of the association, and the avails and proceeds of the business should he divided, hy first paying the complainant for all the articles and merchandise sent to his associates, the expenses thereof, insurance, &c., and the price of the home passage of his associates; second, all the reasonable expenses of said associates in carrying on their business; -and out of the clear gains and net profits the complainant should he entitled to receive one equal half part, and the other half part was to be equally divided among the other associates. It was also further stipulated in the agreement, if, during the continuance of the association, either of said parties should absent from or leave the association, or refuse or neglect to employ himself in the business, in the manner and place provided by a majority of the parties, such party or parties should forfeit his or their share or shares in the proceeds and avails of the business, and all his right thereto should be at an end, and absolutely cease and determine, and his share therein should be distributed, one-half to the complainant, and the other half among the other associates. The agreement was in writing, and a copy annexed to the bill.
    It was then averred that the complainant made the advances, furnished the outfit, and in all things fully complied with the stipulations in the agreement. That the other parties to the agreement set out for California, according to the stipulations therein, and that all with the exception of the respondents remained there, so far as the complainant knew. But that the said Smith Cram and his son Charles had returned to the United States, and were in Philadelphia or New York, and that the said Smith Cram had brought with him a large amount of gold dust, valued at $11,734, which was deposited in the Mint at Philadelphia, in his name, for which he had received the certificate of the proper officer.
    It was further averred, that Smith Cram went to California as one of the associates, and received his advance and outfit from the complainant, and was bound to pay over to him all the gold dust or minerals which might be acquired by him during the two years, to be disposed of by the complainant according to the terms of the articles.
    That during his residence in California, said Cram collected and received a large quantity of gold dust, &c., which, according to the articles of agreement, should have been paid over, sent, or shipped to the complainant, and that said Cram should have remained to prosecute his labours, which appeared to have been successful, for the whole period of two years, for the benefit of his associates and himself; but, having received a large quantity of gold dust, he had abandoned his associates and returned to this country ; and, instead of shipping the gold dust to the complainant, he was retaining it, and had given him no information or account of said gold, but had privately deposited it to his own use in the Mint, to be coined and turned into current money.

      After propounding the interrogatories, there was a prayer for a decree that the sum so deposited be paid to the complainant for the use of the association, and that Smith Cram be restrained by injunction from receiving the money from the Mint, or otherwise interfering therewith; with a prayer for general relief.
    Notice was given for a special injunction, and before the argument of the motion the respondent filed an answer, in which it was admitted that the contract wa.s as stated in the bill, under the name and title of the “Putnam Mining Association,” and that the complainant did furnish the outfit to the respondent before leaving New York, and did pay his passage to Chagres in the steamer Falcon, as stipulated in the articles. But it was denied, that any part of the $1500 was paid to the deponent; what he knew of this was that he saw at Panama $1025, in the possession of the brother of the complainant; that this sum was entirely inadequate to take him and associates to the mines, and that in consequence thereof, they were delayed three months at Panama, and finally were unable to leave, only by procuring contributions from other sources. It was further stated that all the parties except the respondent and Charles S. Oram, were not in California acting under said articles of association. That the said respondent went to California, but did not receive the advancement stated in the bill from the complainant, and therefore was not bound to pay over the gold and minerals acquired by the respondent during the two years. The answer averred that during the residence of the respondent in California, he did not collect or receive a large quantity of gold dust or other minerals in the way of mining under the agreement, which, according to the terms thereof, should be paid over, sent, or shipped to the complainant; nor was he bound to remain to prosecute his labours under the same, for the space of two years, for the benefit of himself and associates; nor, after collecting a large quantity of gold dust, did he abandon his associates; but on the contrary, the said association, for the want of proper advances by the complainant, and misfortunes, turned out disastrously, and the members thereof scattered in different directions in a few weeks after arriving at the region of the mines, and each one was obliged, for self-protection, to labour to obtain the necessaries of life, and betake himself to his own individual means and industry. That the respondent did not collect gold dust enough at the mines or other minerals to pay his necessary expenses, and left the same from the necessities of his situation, and with his son Charles betook himself to industrious mechanical work, as a pile-driver, in the town of St. Francisco, where, and by which means, he made by days’ labour, driving piles at so much a pile, all the money which he deposited in the Mint, and for which he received on deposit the receipt or certificate mentioned in the bill. The respondent denied that he had deposited in the Mint, at Philadelphia., any gold dust, or other minerals, in his own name, which in any manner or form was the property of the association, or in fraud of his agreement and stipulations. It was distinctly stated that the association had broken up and was largely indebted to the respondent. And the whole equity of the bill was denied.
    A motion was made for a special injunction, which, on notice, was argued before Judges King and Paesons.
    It was argued by Messrs. J. Williams Biddle and JEC. J. Williams for the plaintiff; and J. Murray Bush and P. MOall for the respondents.
    It was contended for the plaintiff that this was a partnership, and was to be governed by the same rules which apply when one takes profits out of the partnership funds and trades upon them. These must be accounted for, with all the profits made thereon ; and cited Catherwood v. Collins, 2 Russ. 325; 15 Yesey, 218; Brown v. De Tartet, Jacobs, 284; 2 Keene, 722 ; 17 Yesey, 298; 1 John Ch. Reps. 305; lb. 407.
    It was contended that the advance of the expense to go to California was capital. The subsequent profits made by the defendant’s labour was the result of that capital. This was capital advanced for the outfit; and he was as much bound to account for the profits of his labour, as if he had employed a part of the capital of the partnership business in any other concern : 1 Taunt. 112; Forte v. Stewart, 3 M. & S. 121; 6 Term Reps. 222; Blake v. Leonard, 3 Camp. 43; 6 Pick. 420; B. Monroe’s Reps. 150; 1 Swanst. 508; 15 Yesey, 50.
    The partnership could not be dissolved without notice, and in this case no notice was given. These men could not dissolve the firm, and set up business for themselves, and leave the plaintiff who had advanced all the capital: 11 S. & R. 41; 1 Iredell’s N. C. Rep. 199; 8 Yesey, 46.
    Mr. M’Qall and Mr. Bush.

    The arguments of the plaintiff’s counsel do not convince us that this was partnership property. Is all the labour of the defendants in California, as well as in this country, for two years, partnership property? If the argument advanced by them is sound, that all the labour of our clients is partnership property, then what they earn from day to day now, is partnership property. He who makes such an extravagant claim must prove it. This cannot be pretended in a matter of contract like this, for the contract had but one object, that of mining gold, and there is nothing said of any other labour. If the plaintiff has any remedy, it is by an action at law against the retiring partner, for not pursuing the business, or the remedy provided for in the contract.
    Any one partner can separate himself from the concern at his pleasure: 1 Wharton, 388.
    The agreement doe3 not put labour on the footing with capital stock. There is nothing which shows that labour, no matter how performed, was put in the business; it is nowhere so said. If one put into capital stock a given sum, for the prosecution of a particular business, that does not bind all his fortune to the stock, so that he can engage in no other business; nor when one agrees to give labour for the joint stock for the prosecution of a particular enterprise, from being ■ employed in any other business. All the cases cited, are those where actual capital has been put into the business, and it has been diverted and used in another employment, and if profitably used, was held to have been for the joint advantage of all concerned in the advancement of the capital. But future labour is a prospective thing, and bears no analogy to capital. Here there has been no attempt to show that the partnership funds, or any part thereof, were used by the defendants.
    It was contended that the bill and answer show that the plaintiff was guilty of a breach of contract. That the partnership was dissolved before the property in question came into existence: 1 Whart. 388; 17 John. 525; 19 John. 538; Gow on Part. 241, 248; 3 Kent Comm. 54. Notice of dissolution is merely notice to third persons: Bassit on Part. p. 37, note.
    Mr. Williams, in reply.
    The answer is before the return-day, and it is to be treated but as an affidavit: Drury, 37. When treated as an affidavit, it must particularly deny the statements of the bill. Here is no denial: 19 Vesey, 350. All are affidavits until after the return of the subpoena; and if the Court see any good ground, they will retain the money from the'respondent.
    The labour of the defendants in California was their proportion of the capital of the joint concern, and however employed this labour might have been, it was the joint stock, and its results joint property. Each and every individual is engaged to labour for the plaintiff at mining gold, and whether a dissolution took plaee or not. Each one of the company was bound to labour for him.
    The association as to themselves was made truly for each, but still Mr. Waring had an interest in their individual labour which remained unaffected by their dissolution.
    It has been said the penalty or forfeiture is the sole remedy for the plaintiff. But the agreement shows that Mr. Waring furnished them with all the means they had for labouring, and this stipulation is most material in showing that the object was in obtaining their labour as their portion of the capital. Fanning v. Chadwick, 3 Pickering, 420, is a case similar in principle to this. -. The principle of a dissolution of ordinary partnerships does not apply to a case like the present. This is a contract really for labour rather than a common partnership. Notice therefore of the dissolution, according to all principles of justice and morality, was demanded, if it was intended a dissolution should take place.
   The following opinion was delivered by

King, President. —

It is a doctrine of the law of partnership, that if, after the termination of any partnership, by death, dissolution, bankruptcy, or otherwise, the business is continued by a portion of the associates, with the capital or appliances of the firm, all profits derived from such continued business are part of the joint estate, and as such are to be accounted for to all the partners or their representatives, reasonable allowances being made to those of the associates by whom the active business has been conducted. These principles are the result of the cases of Crawshay v. Collins, 15 Vesey, 218; Same Case, 2 Russell, 325; Brown v. De Tartet, 1 Jacobs, 284; Wedderburne v. Wedderburne, 2 Keene, 722; and Long v. Magestre, 1 John. Ch. Rep. 305; Holden v. M’Mackin, ante, p. 270. It is a principle equally clear, that if one partner should clandestinely carry on another trade, or the same trade, for his private advantage, and in a manner injurious to the true interests of the partnership, or should divert the capital or funds of the partnership to such secret or sinister purposes, he will be compelled in equity to account for all profits made thereby: Story on Part. 273. In Burton v. Wookey, 3 Madd. 367, a partner making purchases. on his private account of merchandise in the trade in which his firm was engaged, was held liable to account to his partners for the profits of such purchases. “It is,” says Sir John Leach in that case, “ a maxim of the Courts of Equity, that a person who stands in a relation of trust or confidence to another shall not be permitted, in pursuit of his private advantage, to place himself in a situation which gives him a bias against the due discharge of that trust and confidence.” Nor will equity permit that parties bound to each other by express or implied contract to promote an undertaking for the common benefit, should any of them engage in another concern, which necessarily gives them a direct interest adverse to the original objects of their association: Glossington v. Thwartes, 1 Sim. & Stewart, 124, 133. And if one of several partners employ the partnership capital or effects, in a matter not the direct object of the association, he must account with his co-partners for the profits resulting from such an employment of the common effects. This was the case in Fanning v. Chadwick, 3 Pick. 420, where the defendant, who was a joint owner and commander of a whaling-ship, having received compensation in the course of his voyage for landing some prisoners, and also for saving property from a wreck, was held liable to account with his co-partner for the money so received.

In all this class of cases it will be perceived, that the profits of which an account was decreed, were derived either from the employment of the capital or appliances of the firm in the same business; in an analogous one; or in some new or incidental undertaking. It was because the profits claimed flowed from the use and employment of that which belonged to all, that the equity of all to pa.rtipate in such profits arose. This principle is one too clear to be questioned. But to bring this case within these admitted principles, it was argued that the labour of the associates forming the “ Putnam Mining Company,” was part of the capital of the association, and that all results of that labour, whether employed in mining or in any other pursuit in California, was the employment of that which belonged to the association, and entitled all the associates to participate in its results. • -

That the common stock, fund, or capital of a copartnership may consist of labour and skill as well as money, goods, or other property, is certainly true. One associate may contribute money, another property, and a third labour and skill. And if, during the existence of the enterprise, either party diverts that from the common object to which it was pledged, and employs it for other productive objects, either of the same or any other kind, he must bring the results into the common fund; because the consideration given by each for a joint participation in the common profits of the society, was the amount of money, the quantity of property, or the extent of labour and skill agreed to be furnished and employed for the common good by each respectively. If either associate could abstract his contribution, whether money, property, or labour, from the common capital, and employ it for his own profit, it is plain that he will receive his proportion of the profits of the joint concern without any corresponding consideration. So far this doctrine of implied obligation, arising from the subsisting relation of partner and co-partnership, is consistent with right reason, common justice, and mutuality of obligation between contracting parties. It simply operates to maintain good faith between the associates, and to oblige all who claim the benefit of the joint enterprise to contribute to its success that which each bound himself to do on entering into the association.

But the case before us is not that of one who, while a continuing member of an existing partnership,.to the business of which he has bound himself to devote all his labour and skill, withdraws a portion of that labour or skill from the common enterprise, and devotes it to his individual profit or advantage.

The defendants’ answer shows that, after an unsuccessful attempt by the associates in California to procure gold at the mines, all abandoned the enterprise as hopeless, and each sought to procure his own subsistence as best he could. The small fund advanced in New York by the plaintiff, who was the money partner, was'exhausted before the arrival of the associates at' the mines, and all exertions terminated with the failure of the first attempt. And seeing their destitute condition, it is difficult to -perceive how it could have been renewed with any rational prospect of a' successful issue. Under these circumstances, the defendant returned to San Francisco, and there successfully employed his industry as a pile-driver, from which source alone he has derived all the money which, by this procedure, the plaintiff seeks to possess himself, of as part of the result of the labour of the “Putnam Mining Company.”

It is difficult to perceive how this result could legally arise, even supposing the plaintiff to have wrongfully withdrawn from the company, and to have devoted his industry to other pursuits than those originally contemplated by the articles of association; unless we should hold that one of the 'effects of entering into a co-partnership for a term of years, is so to bind a party to it, as to force him to prosecute, under the most unpromising circumstances, such an enterprise ; and that the estimate of the damages sustained by the partnership from his withdrawal from it, must at least be all that his industry employed, during the undetermined part of the partnership, no matter how realized. Of his liability for such damages as a jury on a trial at law might award against him under the circumstances of such a withdrawal, no doubt can exist. These might be more or less than the subsequent earnings of his industry otherwise employed. But such a claim for damages could only be determined at law, and no specific lien exists on the avails of his intermediate labour that a Court of Equity could enforce by restraining him from the use of it before any alleged damage, arising from his withdrawal from the business of the partnership, had been ascertained by trial and verdict.

The present is not the case of an unauthorized and unnecessary abandonment of the joint enterprise. The answer and affidavit of the defendants, which are uncontradicted by any counter affidavit of the plaintiff, exhibit a case in which the association or partnership, admitting it not to have been formally dissolved, was dissolved in fact, by the associates in California, from their total destitution of funds or other means for the further prosecution of their enterprise, and from their mutual and necessary separation, arising from these causes. According to the apparent weight of the authorities, it is true that the answer filed after the plaintiff has served his notice of a motion for a special injunction, can only be used as an affidavit in opposition to those used by the plaintiff, and that the defendant cannot insist that under such circumstances the plaintiff is confined in his injunction to the equity confessed in the answer: Atkinson v. Collins, Hogan’s Rep. 110; Moffat v. Jones, 19 Vesey, 350. But giving for the purposes of this case no greater efficacy to the uncontradicted answer, it fully establishes the foregoing as the causes which produced the dissolution, in fact, of the “ Putnam Mining Company.”

To hold that in such a state of things the avails of the labour and skill of each of the adventurers, wherever and however employed in California, are to be deemed the assets of the company, would be carrying the doctrine of the implied accountability of co-partners to the partnership, to a most extravagant length. The money on which the injunction is proposed to operate, is neither the proceeds of the capital of the company employed after its dissolution, nor is it the result of the surreptitious employment of the labour or capital of the company during its actual existence by one of the associates for his own profit, nor is it the result of such labour and capital incidentally employed in objects different from those of the company by part of the associates. In such cases, equity either has actually compelled, or expressed itself prepared to compel, an account of such profit, for the common benefit of the partnership.

If it had been the intention of these parties that, in the event of any one of the associates withdrawing from the company, and otherwise employing himself, the avails of such employment should enure to the common benefit, it was an easy thing to have introduced such understanding into the articles. The case of separation of individuals from the association, before the term limited for the close of its existence, was in the contemplation of the associates. The case of such a withdrawal, or desertion, as it is called in the articles, was provided for. And the penalty on the deserter was fixed as the forfeiture of all his interest in the profits of the company, accumulated at the time of his desertion. The efl'ort here is to introduce through the action of this Court a new and stringent term into the contract of association, not expressed in it. But even if such a term had been found in the articles, still such a liability could only have arisen from a wilful and unnecessary abandonment of the enterprise, and would not have been consequent on an abandonment induced by inevitable and uncontrollable circumstances.

If the continuing partners of the “Putnam Mining Company,” or any of them, have sustained any special damage from the unjustifiable withdrawal of the defendants from the association, the remedy for the wrong is to be sought for at law. Equity can exercise no jurisdiction enabling it to possess itself of the results of the labour of such seceding partner, and to retain them to await the result of such an action, and to apply them to the payment of any damages a jury might award to the injured party. This-would be, under most circumstances of alleged breach of contract complained of, an energetic measure, and one certainly that no Court has the right to employ in a case like the present.

On the case therefore disclosed, the plaintiff cannot obtain the relief he asks here, and consequently we cannot properly award a preliminary injunction, which is never awarded except where the plaintiff shows a clear equity, entitling him to the aid and relief of the Court. A preliminary injunction is emphatically the strong arm of the Court, and is never awarded except in clear cases of right, and where no doubt exists as to the claim of the plaintiff to the remedy he invokes.

Special injunction refused.