author: Read, J.

text:
    William S. Merrill v. Joseph S. Lake and others.
    The Supreme Court can not, by injunction, restrain the prosecution of a suit in chancery in the court of common pleas, and take jurisdiction of tho same-subject matter.
    The Supreme Court and court of common pleas having equal and concurrent jurisdiction in certain eases in chancery, if the common pleas obtain possession of the case by bill, it will retain it for final disposition.
    Chancery will not, at the suit of a stockholder, take jurisdiction of distinct and separate matters, and unite with them the settlement of the transactions of a corporation in one suit, because such single litigation may prevent a sacrifice of property and be most beneficial to stockholders and creditors.
    Persons having distinct, separate, and independent claims can not bo compelled to prosecute them in a single suit.
    *This is a bill in chancery reserved in Summit county.
    The bill is very voluminous, affecting a great variety of interests, and making upwai'd of one hundred persons and corporations-defendants. The following is as condensed an abstract of the bill as can well be made, presenting the objects sought to be attained in the suit:
    The bill states that complainant is a stockholder to the amount, of $1,500 in the Portage Canal and Manufacturing Company, which was incorporated February 7, 1837, and he prosecutes for himself and the other stockholders who are not made defendants. That in September, 1836, E. Crosby, Peter Eichar, E. C. Sackett, and E. W. Crittenden, holding by contract in part, and in part by deed, about 2,500 acres of land in Portage and Tallmadge townships, part paid for and part not, embracing a large water-fall, wished assistance to pay up and make improvements. To obtain this, they issued what is called an “official circular,” representing the great value of said property and its adaptation to manufacturing purposes, and that they had purchased it for the purpose of creating extensive manufacturing privileges, and proposing to convey the whole, by an indisputable title to a company to be formed and called the Portage Canal and Manufacturing Company for the sum of $500,000, being about the .cost of the land and proposed improvements, and to erect across the Cuyahoga river, above the falls, a suitable and sufficient dam to turn the water into a race to be constructed from that point to Akron ; to dig and completo the race or canal of suitable dimensions; and lay out 100 acres of the land into suitable village lots. By said circular the stock of said proposed company was divided into 5,000 shares of $100 each—10 per cent, required to be paid to Joseph S. Lake, their treasurer, and other regulations were provided. Said Crittenden was appointed an agent to dispose of the stock, and provided with the necessary authority and with various letters and certificates, went forth for that purpose, *and by Juno 27, 1837, there had been subscribed 3,500 shares, amounting to $350,000. At that date, an act of incorporation having been procured, and offered for their acceptance, a meeting of the stockholders was held at Akron, at which was represented 2,041 shares of stock, and voted to accept said charter, organized under it, appointed directors, etc. At a. meeting held June 28, 1837, a code of by-laws was adopted, ono of which made it the duty of the directors to secure the perfect fulfillment of the terms of said “circular” by said proprietors, “and in general to manage all the affairs of the company so as best to promote the interests of the stockholders ; but they shall not be authorized to invest the funds of the company in any other manufacturing establishments, nor incur any other expenses, or liabilities further than is necessary to carry out the plan of improvements set forth in said circular.” The same day the board met and organized in due form, and appointed a committee to examine the title to the lands, and pi’epare the form of an agreement, with the proprietors; but the agreement was not concluded. August 1, 1837, the board agreed to receive from “ proprietors ” conveyances of the land held by deed, and assignments of the contracts for the balance, and to pay the balance due for the same, and charge it to the said “ proprietors.” The conveyances and assignments were made, and the “proprietors” charged with the balance due, and credited with the sum of $500,000. Complainant was appointed a director for both the first and second years, but attended only the first meeting, when he took special pains to see the company fairly under way, and with proper regulations. Eichar sold one-half his share to James W. Phillips, and the other half to said Crosby; and thereafter Crosby, Sackett, Crittenden, and Phillips, were known as the “ proprietors ” in all dealings with the company.
    The books of the company show about $15,000 due the “ propri■etors;” and, correcting mistakes therein,¡the balance is $24,000, which the proprietors claim. But the officers of the company claim that it would require about $28,000 to ^complete the contract of said proprietors. The “ proprietors ” claim a lien on the lands for the balance, and Crosby and Sackett are separately prosecuting suits in chancery to enforce it, and Crittenden proposes to do so. • James T. Horner & Co., judgment creditors of said Phillips, are prosecuting their suit in chancery to enforce his lien and claim.
    Of the 11 college tract,” so called, being fifty acres of said land, the fee is in the Western Reserve College, which gave a contract for it to Fowler F. Fenn, the equity of one half of which has come to the company without incumbrance. The other half, with other lands, the fee of which is in the heirs of said Fenn, was contracted to said Sackett, March 10, 1837. Said other lands are described as “ all the property 1 own, besides in-lots one and two, in tract threeand as it is crossed by the canal, it is all important to the company and its creditors that the title of it should be secured; yet the officers and directors of the company have failed to pay for the same, or to settle with said Fenn the quantity embraced in said description, until said Fenn has deceased, ■and his administrators are prosecuting a suit in chancery to declare said contract forfeit, and for authority to sell the land for the payment of debts, claiming the quantity of such “ other lands ” to be eighty acres, while the company claim it to be only ten or twelve, thus making a difference in the amount now due of about $5,000, while the lands not wanted by the company are not worth over $1,000. If this contract is canceled, and the land taken from the company, it will reduce the entire value of its estate more than one-half. That, of the contracts assigned to the company, one was made by Leicester King, who held in trust for himself, Simon Perkins, and said Crosby, which contract was renewed with the company September 14, 1837, for $28,167; and in dividing the trust funds, as Crosby claims, there was set to him of said contract as of October 5, 1837, $10,000, and as of November 1, 1838, $21,000, which sums were receipted as paid by said Crosby on said contract, and the land by his direction conveyed directly to the company. He now claims a vendor’s *lien on said land, and prosecutes his suit in chancery to enforce it, and as the same land is embraced in the Palmer mortgage, ha contests its validity. In the same land, or parts thereof, Charles G-. Caldwell and twenty-six other individuals, named in said bill and made parties thereto, claim interests, which ought to be protected, if in the power of a court of chancery to protect them.
    That for another part of said lands, purchased of one Henry Newberry, said Crittenden paid in April, 1839, to the amount of $14,000, and caused a deed to be made to said company, and ne now claims a vendor’s lien and prosecutes his suit in chancery to enforce it, and seeks to compel Palmer (who'se mortgage covers the said land) to look to other land for its satisfaction ; also to sot aside the mortgage to Payne, mentioned below.
    After the organization of the company, the “proprietors” made a contract and commenced the improvements; but the company subsequently purchased in their contract made with said Sackett, and completed the improvements by making the dam and the canal to the top of the hill at Akron, the point proposed for the use of the water power; that said canal, although slightly out of repair, can at small expense be brought into use, so as to make it eminently superior to any water power in the State of Ohio in value and utility; but, “ by reason of the incumbrances upon the land, and the embarrassed condition of the titles, no sales can be made with safe titles, nor any improvements made except at great peril of those who might venture to make improvements, nor is it likely that any will be made until a court with power and energies equal to the necessities of the case, shall bring all parties interested in it before it, dispose of the property, in the most advantageous manner, settling and determining all questions of liens, or titles, and doing full equity to all who have rights in the premises.”
    That the canal was originally laid on a level too high to get the water of the river into it, without overflowing lands above those owned by the company. That Cyrus Prentiss downed the lands above; that his water-fall was of little value, but the company being much in want of it, agreed to eonv'ey to him for the privilege of raising the water three and a half feet, one-half acre of land with seven feet fall, on their canal, in five years from November 1,1842; and if they failed to do it in time, to pay him eighteen do) • lars per month as liquidated damages, until they gave him written notice of the abandonment of the work. That it was a gross viola tion of the trust resposed in the officers, to give Prentiss such great-power over the company, in case of their failure to fulfill within. five years. That over $40,000 have been expended in finishing the canal adapted to that level, and although the contract has nearly -expired, no effort is made by the officers of the company to fulfill it. Complainant hopes Prentiss will consent to receive the land •and water power ageeed to be conveyed, although not conveyed in time, and that the court will decree him such conveyance, free from all liens thereon. If Prentiss will not receive that, complainant asks the court to hold all his attempts at extortion fraudulent per se, and to grant him his equitable rights under said contract, and nothing more.
    The most valuable portion of said land, and most suitable for the location of the town, is 200 acres, being all that part of tract five lying east of the Ohio canal, which, in 1839, was mortgaged by the company to Smith, Law, and others, to secure debts due them. In April, 1841, in order to induce the location of the county-seat thereon, the company induced said mortgagees to release the mortgages, and the same were duly paid, except part of the amount due said Law; for which balance amounting to $3,509, he re•covered judgment, May, 1844; claims that his lien still exists therefor on said land, and to enforce it, prosecutes his suit in chancery, contesting the claim of John Harris, mentioned below. William Wetmore, also a judgment creditor of said company, released his lien on said 200 acres about the same time, and for the same purpose, but now prosecutes his suit in chancery to enforce the lien of said judgment thereon.
    *In 1840 said company agreed to sell of said 200-acre tract, to Wm. G-. A. Rickey, one acre and twelve feet fall of the Little •Cuyahoga, for $3,000 in hand paid, and an acre with twelve feet fall of the Big Cuyahoga, for $12,000 in stock of the company, and $5,000 in cash, payable when the waters of said river should be brought into use at that point, of which contract Lake and Harris are charged with notice at the time of the deed to them mentioned below. Rickey has placed said contract in the hands of •counsel for prosecution in chancery.
    August 13, 1841, said 200-aere tract being free from legal lien, the company conveyed to said Lake and Harris, by deed absolute -on its face, but, in fact, subject to a written déclaration of trust on their part, that whereas, they and said Crittenden, Crosby, Phillips, Sackett, Eichar, and one Frederick Wadsworth, had agreed to pay for said company, to the Farmers’ Bank of Canton, debts due as follows, to wit: July 22, 1839, $1,316 ; July 22, 1840, $960; July 22, 1841, $960; July 22, 1842, $4,160; July 22, 1843, $3,968; July 22, 1844, $3,776; July 22, 1845, $3,854; and July 22, 1846, $3,392; and to the Bank of Wooster, $2,000, due August 2, 1847; the said Harris and Lake were to sell and convey said lands and town lots in a prudent and judicious manner, to raise the money aforesaid, and so to conduct said sales as not to retard or embarrass the great object of the company, viz., the improvements aforesaid.
    April 6, 1841, the company conveyed most of the balance of their lands, about 2,000, acres to John J. Palmer, of New York, in trust to secure the payment of 200 bonds of $500 each, with interest at six per cent., payable semi-annually on the first days of January and July. Said bonds were issued by said company, and secured by said mortgage for the purpose of raising money by the sale thereof, and were dated March 31, 1841, and numbered from 1 to 200 inclusive, and payable July 1,1846, in New York city, and deposited with said Palmer in trust, subject to the directions of the company. Said deed of trust gives full power to enter, take possession, and sell, in case of default in payment either of principal or ^interest. On the land embraced therein, are the dam, and about three-fourths of the canal of the company, but the design and intention was to use the water power and lay out the town below, on the 200-acre tract. The bill charges gross mismanagement on the part of the officers and directors in thus disconnecting the town plat and proper place for using the water, from the canal above, through which it must be brought, and avers that in 1839 or 1840, and in 1841, G-oorgc Wollhouse, Owen Brown> and Darius Lyman, discreet men, etc., appraised said land, with the canal completed, at over $500,000; and if reunited and sold “ under favorable and fair auspices,” $250,000 might now be realized, while if forced to a sale separately, they can scarcely produce $50,000; that.no party interested can, with honest designs, oppose such a reunion, and that the only apology for the directors in ever making the separation, was a misplaced confidence in said Lake and Harris, that they would “so conduct as not to retard cr embarrass the great object of said company.”
    Before the deed to said Palmer, but after his consent to accept said trust, and about March 9,1841, said company by said Phillips, then its general agent, in New York, entered into a written contract under seal, with one Gardner Colby, and agreed on the execution of said deed, to cause to be transferred to him forty of said bonds, amount $20,000, and to receive therefor $5,000 in cash, and the conveyance in fee of lots seven and nine on Washington street, New York city, subject to a mortgage of $12,000, the equity of redemption being, in fact, worth but $2,000, and said agreement was fully complied with by the parties thereto May 1, 1841. Thus the company realized only $7,000 for the forty bonds (Nos. 1 to 40 inclusive), the remaining $13,000 being usury. In pursuance of a similar agreement made with one Eldridge G. Roberts before the execution of said deed of trust, said company, May 4, 1841, caused said Palmer to negotiate in due form to said Roberts, twenty-four of said bonds, Nos. 41 to 64 inclusive, value, $12,000, and received *therefor in cash $1,300, and the transfer of the following stocks fully paid up, to wit: 50 shares in the New Jersey Railroad and Turnpike Company; 62 shares in the American Land Company, and 200 shares in the Boston and Eastern Laud and Mill Company, which stocks at their market value were worth only $3,735, making the amount received for said bonds only $5,035, and leaving the usury or shave $6,935. These exorbitant and extraordinary transactions paved the way for the subsequent plunderings of the company set out in the bill, and Colby and Rogers can not reasonably complain, if they are compelled to bear a share of the great loss sustained by the company and its creditors from the absorption of its means and consequent destruction of its credit. Said contracts with Colby and Rogers, and the transfer of said bonds were made in New York, and subject to its usury laws, which are substantially set out, and it is averred that by reason thereof said bonds, Nos. 1 to 64, and said deed of trust, are void. Colby transferred his bonds to one Cottinett and his partners, of New York, who took with notice of the usury.
    May 7, 1841, at New York, said Phillips, as general agent for said company, caused to be transferred to one Joseph Livzy six of said bonds, Nos. 65 to 70, amount $3,000, and thirty shares of the capital stock of said company, nominally $3,000, and really worth twenty-five or thirty per cent., on account of a debt due him, said stock being, in fact, a usurious payment for the forbearance of said $3,000 debt. After this, said Palmer delivered to said general agent the remaining 130 bonds, one of which was returned as a specimen, and still remains in said Palmer’s hands, and belongs to the company. May 7, 1841, at New York, said general agent transferred to A. & S. Law four of said bonds and twenty shares of said stock; to Johnson, Blake & Davis two of said bonds and twenty shares of said stock; to John A. Warner three of said bonds and fifteen shares of said stock, and to Sam. C. Shepard one of said bonds and five shares of said stock. All said transfers were made on account of debts *due the respective assignees, to the amount of the bonds in each case, and in each case the stock is a usurious payment for the forbearance of a debt of equal amount therewith. Said bonds are Nos. 71 to 80.
    In May or June, 1841, at New York, said general agent negotiated three of said bonds to James B. Clark, at eighty cents on the dollar in goods, and said transaction is void for usury to the amount of $300. Four of said bonds, Nos. 193 to 196, were negotiated to said Saekett at par, and nine to Wadsworth and Seth Day, also at par ; and these thirteen, with the eighty-three abovo named (which are void for usury), are all of the whole issue of two hundred that were ever negotiated by the company or any of its officers or agents.
    June, 1841, forty of said bonds were hypothecated to Cowing & Richmond, to secure acceptances for the company to the amount of $10,000, which amount was subsequently reduced to less than $4,000, and eight bonds returned, leaving in their hands thirty-two, being Nos. 82 to 113. In 1842 C. S. Payne, then financial officer of the company, paid the debt, redeemed the bonds, and placed them in the hands of said Lake, who is said to hold them in trust for the company.
    In 1841 nine of said bonds were deposited with Mead & Rogers, to secure a debt due them, which was soon reduced to $300, and one bond returned. The other eight bonds were redeemed by Payne, and placed in Lake’s hands in the same manner as those above mentioned.
    In July, 1841, fifty of said bonds, Nos. T14 to 119, 131 to 145, 154 to 156, 159 to 175, 178, 179, 188 to 192, 199, and 200—amount $25,000—were in the company’s office at New York; that one Eden S. Webster, with the intent feloniously to convert the same to his own use, induced said Crosby, president of said company, to intrust him with twenty-seven of these bonds, under the pretense of raising money on them for the company, which bonds said Webster retained feloniously, and the same are void. Ho afterward failed, and assigned them to H. & E. Ellsworth, his assiguees, and part of *them are now in the hands of S. L. Hand, as their, attorney. Six other of said fifty bonds were delivered to H. C. Adams, to pledge and raise money for the company. He returned one and retained five fraudulently. Six other of said bonds were hypothecated to one Barker, to secure $1,160, cash borrowed. Those are supposed to be in the hands of said Adams. James B. Clark held four of said fifty bonds, as security for a balance of $1,065.96, due him in the fall of 1842. The remaining nine of said fifty bonds are supposed to be those negotiated to Wadsworth and Day, as aforesaid. In the fall of 1841, said Payne, as agent of said company, intrusted a number of said Palmer bonds to one Fitch Shepherd, who returned part, but fraudulently retained sixteen of them, which are void in his hands. The bill charges that if any of said sixteen or said fifty bonds have been negotiated it has been in the city of New York, and upon usurious consideration, and therefore the assignment is void. The remaining five of said 200 bonds are supposed to be in Lake’s hands—held by him in the same manner as those above traced to his hands.
    The following is the disposition of the 200 bonds as set out in the bill:
    Specimen bond deposited with John J. Palmer..................... 1
    Negotiated to Sackett, Wadsworth, and Day........................ 13
    Usuriously negotiated in the city of Now York..................... 83
    Hypothecated with Cowing & Richmond, supposed in Lake’s hands......................................................................... 32
    Hypothecated with Mead & Rogers, supposed in Lake’s hands. 8
    Not known how disposed of, but supposed to be in Lake’s hands........................................................................ 5
    Hypothecated with Barker, and supposed to be in the hands of Adams..................................................................... 6
    Hypothecated with James B. Clark................................... 4
    'Retained without authority by H. C. Adams........................ 5
    Retained without authority by Fitch Shepherd..................... 16
    ^Feloniously taken by Eden S. Webster....................... 27
    Total.....................................................................200
    For these bonds the company has received only $29,961, aside from the advances made Lake on those in his hands, claimed to be $8,000 or $9,000. In the aforesaid disposition of said bonds, the officers of said company were charged with gross misconduct in discharging their official trust.
    Palmer prosecutes his suit to subject said lands to sale, claiming that all the. bonds have been fairly negotiated. In said deed was included a small piece of land, which had previously been contracted to Jacob Allen and John Looker, who have sold to Thomas Wilson, James W. Wallace, and Daniel Priest.
    Of the real estate belonging to said company, there was excepted from the Palmer mortgage the “Forks property,” with the acquisition of which said Crosby had some connection, and claims a lien thereon for about $3,000, and prosecutes his suit in chancery to enforce the same. The Hardesty tract was also excepted, but it is embraced in the Payne mortgage mentioned below.
    The company purchased by contract of Justyn Ely 300 acres of land, and in August, 1846, Ely obtained a decree for the sale of said land to pay the amount then due, $30,000 (on which is to become due also $5,000 or $4,000), and be has bid in the land at $-, leaving a large balance duo from the company. He was willing to settle on very favorable terms, but the managers of the company neglected it, caring nothing about the amount of debts against the company, and complainant thinks that if said canal can be brought into use, and the object of the company carried out, he will still make liberal deductions from his debt. That lot F once belonged to said company, but was sold under mortgage ; and that before its sale, Lake, as trustee, had the rents, for which, to a large amount, he ought to account.
    Said company owned 1,000 or 1,500 acres of land in Yirginia, of
    but little value, held in trust for the companj', in *the name of some of its officers, and complainant supposes of Payne : and he asks that the person holding the title, disclose it, and account for the land.
    In 1839, said Crittenden, general agent of said company, by the advice of the directors, entered into an arrangement with Isaac Schuyler, to organize, and did organize, under the law of New York, the “New York Exchange Bank,” founded in part upon the bonds and stock of the company, as security for its issues, and Schuyler was made president, and said Fitch Shepard cashier. This scheme was unauthorized and injurious to the company, and resulted in the failure of the bank.
    The dealings between said bank and company have not been closed. The bank appointed said Phillips its agent, but said company denies his authority, and acts itself as receiver of the bank.
    In 1841, said Phillips being the general agent, in his own name, but, in fact, in behalf of said company, entered into a copartnership with said Edon S. Webster, for the transaction, in New York city, of a general commission business, under the New York law regulating limited partnerships, Phillips being the special partner. The design of said operation was to got goods out of the New York merchants for said company, with the expectation that Webster would fail, and his creditors bo compelled to wait, until the company could pay, or lose their debts. The directors of said company, although ashamed to record their action in that behalf, appi*oved said contract, and ordered said Phillips to carry it out. The making and sanction of said contract was a gross abuse of trust on the part of the officers and directors of said company, and resulted greatly to its injury; especially as said Webster made his connection with the company in this contract, his excuse for feloniously obtaining said $14,000 in the Palmer bonds. When his intention to convert these bonds to his own use was discovered, said Crosby urged said Payne, who was then in New York, with ample authority, to commence legal proceedings for their recovery, *but Payne neglected it, and thereby sacrificed the interests of the company.
    Said company issued a number of bonds payable at the Bank of Wooster, but complainant is ignorant as to their negotiation. Phillips placed two of them, of $500 each, in the hands of one Roswell C. Peck, who hypothecated one for his own use, and Phillips redeemed it with company funds for $160. Complainant is ignorant as to the disposition of the other, but insists that it is not obligatory upon the company.
    The bill avers that said Lake, Crosby, Sackett, Crittenden, Harris, Phillips, Day, and Wadsworth are principally chargeable with the mismanagement of the affairs of said company, and that they ought not to receive any personal advantage from their misconduct, whether resulting from incapacity, neglect, or design; and calls for a full disclosure from them, and for such decree against them as equity may require.
    In May, 1841, said Crosby, as president of said company, and said Phillips, as its general agent, being in Now York, purchased of one Albert J. Smith lots 1 and 32, with tho west half of lot 2, in block 1, in Akron, called the stone block property, and paid therefor §12,000 in the company’s stock, and §3,000 in money. They did not take a deed, but Phillips was authorized to sell and convey, and appropriate the proceeds as he pleased. They sold, and Phillips cunveyed said property to E. D. Crosby, a son of said Eliakim. They claimed that the purchase was a private one, but the company claimed that it was made for her benefit. In September, 1841, said Payne was appointed treasurer and fiscal agent of said company, and soon visited New York. On his return, late in December of that year, he claimed that ho had ascertained from Smith, that said purchase (which was considered a valuable one) was made for the company, and insisted upon tho conveyance of tho block to the company. E. D. Crosby denied the claim. Ho had mortgaged one-half of it for §5,000, for money to pay for Phillips’ half of *it, and it was subject to a previous judgment lien for §800 or §900. Said Payne, in behalf of said company, and said E. D. Crosby finally compromised, by an agreement that said company should buy the property, and pay the mortgage and judgment lion and place §1,500 to the credit of said E. Crosby, and §1,500 to the credit of said Phillips, when they should direct, and pay said E. D. Crosby for his improvements on tho premisos, and give him a certain amount of stock in the company. Said E. D. Crosby convoyed, as agreed, and tho company assigned tho stock, but have refused to fulfill tho balance of the contract, claiming that the whole transaction in passing said title through the hands of said E. D. Crosby was fraudulent. To enforce said mortgage, and compel the performance of said contract, said E. D. Crosby prosecutes in this court his suit in chancery, to which said Lake, Payne, William S. C. Otis, and others are made parties, and “under it ample equity may be done between said E. D. Crosby and the company, without embarrassing any other fights.” Before said contract, said Payne and Lake met in New York, and entered upon the incipient measures of the fraud upon the company, and subsequently perpetrated it. They agreed that said Payne should procure the conveyance of said stone block property to them, or said Lake alone. At the time of said contract with E, D. Crosby, said Payne promised that the property should be used to aid in constructing the canal, and caroiully concealed his and Lake’s interest therein ; but afterward officially instructed said E. D. Crosby to convey said land to himself and said Lake, which was done by deed absolute on its face, but subject to said mortgage and judgment lien. The bill charges that no written declaration of trust was made, and that it was fraudulently withheld, that said grantees might afterward give to the transaction such character as would best suit their interest. The equities of said Payne and Lake, in said property, are denied, and it is charged that said Payne and Lake, or Lake alone, have had possession and control of said property, and ought to account for the fronts and profits to the amount of $5,000, besides interest. That Lake in 1845 neglected to pay the taxes on said lots 1 and 32, which with penalty, etc., amount to $127.25; the tax of 1846 is $103.88, and on the west half of lot 2, a corporation tax of $6.57i, which were not paid when the bill was filed. That Lake did not, as a faithful trustee ought, apply the rents to the extinguishment of said judgment lien, but procured said Otis to buy in said judgment, with said Lake’s money, the same having been levied on the west half of said lot 1, and said Otis to aid in such fraud, in secret trust for said Lake, bid in said land at sheriff’s sale, and afterward, in March, 1846, by direction of said Lake, secretly and fraudulently to secure it to said Lake, convoyed it to OthoKlomm, a son-in-law and partner of said Lake; that said Klemm paid nothing for said land, or if ho did) it was merely fictitious to cover up the fraud; that at the time of said purchase and conveyance by said Otis, the suit of said E. D. Crosby against said company and others, above mentioned, was pending.
    Early in 1842, said Payne having induced the directors to give him full authority, at the company’s office in New York, or elsewhere, to sell or pledge any of the company’s stock, bonds, or other property, and to do anything he might judge for the interest of the company, repaired to New York, professedly to raise money to complete said canal, which was then about half finished, and had opportunities to have closed two or three negotiations moro advantageous to the company than the one actually closed with John R. Hudson, as stated below. That in May, 1842, said Payne and Lake met in Now York one John T. Balch, a creditor of said company, who had previously failed, and with him entered into a plan of operations for speculating out of tho company, “by aiding in the completion of tho canal.” Lake and Payne being officers of the company, wore anxious to conceal their designs and purposes, and Balch being insolvent could not act in his own name, and therefore they selected one John R. Hudson of that city, a *young man of little means, and limited business capacity, as tho person in whoso name tho businoss should be done, and tho scheme carried out. It was agreed that Balch, in the .name of Hudson, should submit to the company the proposition stated below; if accepted, tho contract should be held in the name of Hudson, for tho joint benefit of himself, said Payne and Lake, and that tho profits and loss should be shared by them equally; tho goods to bo bought principally on the credit of said Lake, and said Balch to conduct the proposed store at Akron, and said Payne to assist in buying the goods and otherwise. Said agreement was then, or subsequently reduced to writing and signed by tho parties. Lake then made arrangements in Now York for tho purchase of tho goods on credit, and returned home to Cleveland. Balch soon followed, consulted Lake at Cleveland, and then went to Akron and submitted his proposition. Ho and Hudson were strangers to the directors of tho company, but they believing from Payne’s recommendation, that Hudson was a man of considerable wealth and a bona fide party, received and considered the proposition, which was in substance as follows:
    1. The company to furnish a store rent free, for one year, and give a good business lot, and a lot for a dwelling-house.
    2. Suitable goods to be furnished through Mr. Hudson for a store at Akron, at which the orders of the company should be accepted, payable in goods, as they might be wanted for tho completion of their improvements, to the amount of §20,000 or §30,000, in the course of the year.
    3. The amount of such orders to be refunded by tho company in cash, within twelve months from tho purchase of each now stock • of goods.
    4. Tho company to give Mr. Hudson a bonus of tho capital stock then hold by said company, say 2,000 shares, for thus supplying the means of completing said canal.
    5. The bonds of the company, the shares of capital stock then held by the company, and the stone building in Akron, *to be placed by said company in the hands of Mr. Hudson, as collateral security for the payment of the amount advanced by him for the completion of the canal.
    6. Said Batch to remove to Akron and take charge of the proposed store as soon as possible.
    The officers of said company, residing at Akron, were surprised that Payne, their treasurer and fiscal agent, should recommend so ruinous a proposition; and having great confidence in said Lake’s financial capacity, and in his opinion, wrote to him for advice, according to their usual custom in similar cases, expressing their surprise at the proposition. Lake replied, saying that the proposition looked “like a very hard one for the company,” but, under the circumstances, recommended giving the unsold stock as a bonus, and having the work completed. He deceitfully concealed his interest in the proposition, and complainant believes that, but for his advice, and for their ignorance of his and Payne’s interest in said proposition, the officers of the company would not have accepted it. .August 17, 1842, the executive committee of said company, consisting of said Wadsworth and Sackett, and one Arad Kent, being thereunto duly authorized by the by-laws of said company, and said E. Crosby, as president of said company, andiu behalf of the same, entered into a written contract with said Hudson (said Payne having previously returned to Akron with the goods), substantially in accordance with the proposition, requiring Hudson, however, to keep two stores, one at Akron, and one on the property, and to advance such amount of cash as might be absolutely necessary to complete the canal; the stock to be held as security until the contract should be completed, and then to become the property of said Hudson. That December 16, 1842, said Lake and Payne, still minding to get control of the effects of the company, induced the executive committee to order a mortgage of all the lands embraced in the Palmer deed ; also, block F, the Hardesty tract, and the two hundred acre tract, to said Payne, in trust to secure fulfillment of said Hudson contract. The deed was executed, *but is said to be void, because the directors alone had power to order it.
    That at the next election after this contract, said Payne and Lake, by means of said 2,000 shares of stock, controlled the election, turned out most of the old and experienced members of the board, and placed the control of the company in the hands of persons unacquainted with its most important transactions, and sinoe that time the company “ has never had any officer who possessed an intelligent idea of its general condition.” Since that revolution, the principal directors have been said Lake, Payne, E. C. Sacketi, Seth Sackott, Balch, Otis, and Day; and if not directly controlled by motives of personal advantage, they were at least liable to the following influences : Said Lake, Payne, and Balch were the fraudulent , conspirators. Said E. C. Sackott received a large salary under cover of taking care of the company property. Said Wads-worth was part of the time under pay as a general agent. Said Day received pay as president, although previous presidents had received nothing. Otis was secretary and attorney, at a salary of $700. Alvah Hand was the former attorney, but not suiting the purpose of Lake and Payne, he was displaced. Said Seth Sackett made a good bargain by getting payment in property for a debt of $3,000, while most other creditors were unprovided for. And said John Harris was deeply connected with said Lake in said 200-acre tract. That the object -of said Lake and Payne, in procuring said Hudson contract, was to get possession of the effects of said company, and appropriate them to the use of themselves and their associates, and in carrying out their fraudulent purposes, they have disregarded the rights of other stockholders, and sacrificed the interest of the company, and wholly neglected to pay or conciliate its creditors.
    That the salaries and other compensation allowed said officers since the date of the Hudson contract, have been impi’operly charged to the company, inasmuch as the services have been rendered for the benefit of the conspirators.
    *That after said Lake and hi's associates had so obtained control of said company, and after said Crittenden and others had filed a bill in chancery to set aside said Hudson contract as fraudulent, said Lake, the more completely to convert the property of the company to the use and benefit of himself and associates, procured said company to execute to him a deed of trust of the lands described in said Palmer and Payne deed, the stone block property, and perhaps the Fenn and Forks property, dated April 11, 1844; said deed declaring the trust to be, to release, and to sell and convey said property at discretion, for ready pay, on reasonable credit, or in discharge of bonds, and to apply the proceeds to pay the expenses of the trust, and the residue in payment of the interest and principal of 1,200 bonds, which the company then issued, payable, with semi-annual interest, on July 1, 1852, in New York, with which it was proposed to effect a loan not exceeding $200,000, “ for the purpose of discharging indebtedness and making improvements on the propertyand the surplus, if any, to be paid or conveyed to the company. But it was expressly understood by the terms of said deeds, “that said trustee shall not be held answerable to said company or to the holders of said bonds for any error of judgment in the execution of his trust therein or hereby declared, or for moneys not actually received by him, or for what shall be lost without his fault.” That by means of the incumbrances upon said property, no part of it could be sold, and no effort made to sell, and none of said 1,200 bonds have been negotiated.
    That the charter of said company requires an office to be kept in the “Township of Portage,” where there books shall be kept, and at all times open to the inspection of stockholders; yet said Lake and his associates, professing to act under said trust deed, have pretended to control all the real estate except the 200 acres; leasing, receiving rents, selling timber, etc., at the same time fraudulently avoiding said provision of the charter, so that the other stockholders are unable to ascertain what has been received. -That said ^property, if properly managed, would yield a rent of from $3,000 to $5,000 per annum, for which amount said Lake ought to account, notwithstanding the above clause in said deed, because the same was purposely and fraudulently inserted for the purpose of enabling irresponsible persons to manage said property for the benefit of said conspirators; because also said Lake is a trustee, in his own wrong, said deed being inoperative.
    That by the means furnished under said Hudson contract, said canal was nearly or quite completed, and all accounts therefor have been transferred to said Lake, who claims to have advanced toward said canal between $40,000 and $50,000, and that for them and other advances the company is indebted to him in the sum of $70,000. This amount is questioned, and complainant asks that the actual amount may be ascertained, and that after all proper allowance, the balance be charged to his stock account, stated below.
    That in September, 1842, the company transferred to said Payne said 2,000 shares of stock, in amount $200,000, to vote upon and hold in trust for tho purposes of said Hudson contract, and the same being fulfilled, said Payne, in April, 1844, transferred the same to said Hudson. That tho contract having been so varied as to give Lake the principal benefit of it, said Hudson, in August, 1844, assigned to said Lake 125 shares thereof, amounting to $12,500; to said Payne 450 shares, amount $45,000, and retained himself thirty shares, amount $3,000. That said stock was obtained from the company fraudulently; by means thereof said Lake and his associates have managed said company to their liking, and have radically changed the whole policy and condition thereof; so that a return thereof will not restore the company to the condition it would have been in, “had said Lake and others acted openly, honestly, and without fraud;” and therefore complainant asks that they be held as subscribers to the respective amounts aforesaid, and required to pay up the subscrijDtion price, crediting said Lake the amount of the balance found due him as aforesaid.
    *That soon after the date of the Hudson contract, said Lake released to John Harris said 200-acre tract, and abandoned the trust, and said Harris neglected it; that he and Lake ought and could have sold at private sale sufficient to pay off said bank debts; that said Harris gave but little attention to it, sold but little, suffered several hundred dollars’ worth of valuable timber to be stripped off, and permitted said Balch, in the name of said Hudson, to occupy a water-fall of four to six feet, and build a large tannery thereon, under, as Balch says, a verbal contract; but, as Harris claims, without his knowledge or consent; and said Hands otherwise misbehaved as such trustee. In March, 1845, he filed his bill in chancery against said company, said Lake, Wadsworth, Sackett, E. Crosby, Crittenden, Phillips, Eichar, and Banks of Canton and Wooster, asking the sale of said property to pay said debts. Lake united in the prayer of said bill. Crosby and Crittenden answered and resisted the decree, and filed a cross-bill, which Harris answered. The company did not answer, and no replication was filed. The acting officers of said company connived with Lake and Harris, and by reason thereof, and of their refusal to defend, a decree was entered, finding due said Lake and Harris, for moneys paid on said bank debts, $23,146.37, and the note duo in July, 1846, not yet paid, and ordering the lands to be sold, unless the company paid. The object of said Lake and Harris, in their management of said trust, was by taking advantage of the separation of said 200-aere tract, from the main body of the land, and of the embarrassments of the company produced in part by themselves, and of a forced sale, to bid in said property ; and afterward in like manner the land under the Palmct mortgage, and by reuniting the two make a groat fortune, which ought in equity to go to said company and its creditors. In July, 1846, said Crosby, Crittenden, and Phillips filed a bill of review in said cause, also making said company a complainant, and soon after that Harris bid in said property for $16,000 or $17,000, and this sale was confirmed by the court. At the August term, 1846, said Harris *appeared for himself) and as general agent and attorney for said company, and on his motion its name was stricken out as a complainant, and the company was made defendant, and no person appearing to protect her interests, said bill of review was dismissed, and an appeal taken to this court, where it is now pending. That by reason of said Harris’ “assault upon the trust property,” and said fraudulent combination between said Harris, Lake, and othei’s, all the proceedings of said Harris under said suit in chancery ought to bo held fraudulent and void, and said Harris and Lake bo hold to a strict account of all that could have been realized out of said property, if properly managed, and of all dealings between them and the company.
    That the interest of said Hudson, if any he had, in said water power and tannery lot, has been assigned to one Francis D. Parmilee.
    That said Harris, in behalf of said company, has answered said bill of said j. J. Palmer, substantially admitting the right to a foreclosure for the whole of said 200 bonds, except one, and a small payment of interest; and said Harris had full notice of the charges in said Crosby’s bill above mentioned, contesting the validity of said bonds and mortgage, and so answered from utter disregard of the company’s interests, or from some secret motive unknown to complainant ; and as no one wishing to defend has any power under the'eompany, it is highly important for the creditors and stockholders that the matter be so placed as to bo defended as equity may require.
    That the following judgments have been recovered against the company, in favor of the following persons; March term, 1843, Elias Brown, for $213,14; at May term, 1842, Henry A. Kent, $1,311.35, of which was remitted $90; Swords, Halstead & Co., $1,354.22, of which was remitted $303.86; Bostwick & Taylor, $2,021.26, of which was remitted $671.17 ; at May term, 1843, John Ross, $2,229.05; Clark, Smith & Co., $928.58; *May term, 1854, Thomas R. Shepard, $2,230.65 ; C. Saekett, $1,010.78, on which was paid October 1, 1844, $50; said Crittenden for the use of said Smith Law, $3,512.98, which is the judgment sought to be collected by bill in chancery, by said Law as above stated; William Wetmore, $5,266.69 ; also, at November term, 1841, in Trumbull county, $4,453.61, lor the collection of which be prosecutes his aforesaid suit in chancery, seeking to wind up the affairs of the company as far as necessary to pay his debt; at May term, 1845, Elias T. Ayres and Nathaniel Terril, $584.98; A. E. Rice $620; George Backham, $263 04; James P. Baldwin, $1,024.61; at November term, 1845, Henry C. Crosby, $271.52; Frederick Wads-worth, $1,780.89; E. C. Saekett, $3,796.83. To many of said judgments, said Crosby, Crittenden, Saekett, Phillips, and Wads-worth, or some of them, are parties defendant, as sureties for said company. August term, 1846, Constant F. Bryan, as assignee of said Baleh under the bankrupt law, recovered judgment against said company for $10,846.66, which was predicated on certain drafts accepted by said Baleh for the benefit of the company, and which-, on his failure, he assigned to said Hudson and one John E. 'Nitchie. Said assignment was declared void, during the pendency of the bankrupt proceedings. The drafts are still in the hands of said Hudson and Nitchie, but should bo delivered up to be canceled. There are other judgments and demands against the company unknown to complainant; and there is likely to be almost endless litigation, “ among the various creditors, each pursuing his own interest separately, that if permitted to proceed, will exhaust the property of the company and satisfy but a small portion of the debt.”
    The taxes of 1845 and 1846 remain unpaid, and there is danger of a sale of the property for taxes, and the bill charges that this non-payment is owing to a misapplication of the rents and profits.
    *The charter provides : “ That each subscriber and stockholder shall be liable in his' individual capacity for any debt of the corporation to the amount of the stock subscribed or held by him, provided that the property of the corporation shall first be exhausted.” Said Wetmore seeks by his bill to exhaust the cornpany property, and then to pursue the stockholders, and as the legal construction of said charter is not settled, and it may bo held to include those who have fully paid up their stock, it is a matter most important to said complainant, and other stockholders, in a like condition, “that all debts of the company should be fully ascertained, and none but real debts allowed, that all unnecessary cost likely to arise from a multiplicity of suits be avoided; and that the property of the company be disposed of to the best advantage, and in the meantime the present officers be prevented from sacrificing the interests of the company, or converting its effects to their own use; the property in the meantime bo placed in honest and competent hands; and that this court would, to the end of doing full justice to all the parties, take charge and control of the matter.”
    All the aforesaid suits in chancery are prosecuted and said judgments rendered in Summit county common pleas, except when otherwise stated above.
    All the complainants in said chancery suits, and the plaintiffs in said judgments, and all the aforesaid trustees, officers, and agents of the company, and all other persons above named, as having had any transactions with the company, and many others, are made parties defendant (in number 109).
    The bill calls for answers under oath, and prays that until a final hearing, said Lake, and all other trustees, officers, and agents ‘of said company, be strictly enjoined from in any manner inter-meddling with the property of said company; that a receiver be appointed with power to collect, pay taxes, receive the company property, etc., and that all the aforesaid parties, or other persons having suits, judgments, or demands against said company, be strictly enjoined from ^proceeding further therein, unless specially permitted by this court; and all such persons and parties be required to appear as parties to this suit, and to settle their rights, legal or equitable, under this bill. That a competent master be appointed to take testimony, examine and report upon all matters of indebtedness, accounts, trusts, and things arising under this bill, and for the following relief on final hearing. That the amount due on said Fonn contract be ascertained and payment provided for, and the property conveyed to said company; that the proposed water-fall and land -be decreed to said Prentiss, and he in turn required to convey to the company the aforesaid right by him contracted to said company; that said 200-acre tract be restored to its connection with the other lands of the company; that the whole may be brought into market in the most advantageous manner; and the avails be applied to the payment of the company’s liabilities, to bo ascertained by the court so far as necessary; and if the avails of such sale should not be adequate to meet all the debts, that the court will settle all questions of the priority of liens, and order the avails of such sale to be paid over accordingly; that all who have either directly or indirectely acted in a trustee capacity for the company be required fully and strictly to account for the benefit of said company, its creditors, and stockholders; that all holders of unpaid stock may be compelled to pay up with interest; and that the court may direct such application of any money or other effects that may come under its control, as may be equitable and just; and for further relief.
    Injunction allowed as prayed for, November 19, 1846, and bill filed and subpena issued August 3,1847.
    William S. C. Otis, one of the defendants answered, but his answer not being filed in time, was not considered. The other defendants demurred, and the case was heard upon demurrer to the bill.
    King & Taylor, for complainant:
    *1. The complainant, being a stockholder in an incorporated company, has a right, in equity, in case of mismanagement by the officers of the corporation, to require a legitimate management of its affairs and appropriation of its effects. This ground is so fully discussed and sustained in Taylor v. Miami Exporting Companjq 5 Ohio, 162, that it would be work of supererogation to cite other authority. That the bill in this case makes a strong case against the officers of the company, and their manner of conducting its affairs, need not be argued.
    2. That a corporation is a trustee for the individuals of which it is composed, and that those who act for a corporation and conduct its affairs, are trustees for the corporation, is sustained by the same case and the numerous authorities there cited, by the learned judge who pronounced the opinion.
    3. The effects of the corporation constitute a trust fund upon which creditors hold the first lien, for the payment of the debts of the corporation; and after creditors are satisfied, the stockholders are the owners of the remainder. Angell & Ames on Corporations, 355; Hood v. Dummor, 3 Mason, 308.
    4. This case being, then, in its loading features, one for the administration, by a court of equity, of a trust, necessarily draws to it all minor considerations, and brings in all parties connected with the trust, including trustees and cestuis que trust, whether creditors or stockholders. This consideration removes all question • of multifariousness, for, if a court of equity will undertake to administer a trust, it will do it completely; and to that end, must have before it all parlies interested in tho subject matter, and all parties claiming lions upon tho trust property.
    5. As to tho power of tho Supreme Court to restrain a party from proceeding in chancery in tho common picas, we contend that tho exercise of that power docs not at all interfere with the jurisdiction of tho common picas, operating, as it does, on tho party, and not on the court. Tho real ^question for consideration is, we apprehend, whether under the proceedings now prosecuted in tho common pleas, full equity can be done to the subject matter, and all tho parties in interest. Injunctions against parties proceeding in ohancery, were not necessary in England, because of the oneness of tho English chancery court. The chancellor had hut to refuse to proceed in any case pending before him, and that refusal would operate equally effective as an injunction. Tho English chancellor granted injunctions, not by reason of any supervisory power, or superiority over other courts, but asserted its jurisdiction on account of the amenability of the party to the jurisdiction assorted. “Accordingly, there have been injunctions against suing in tho ecclesiastical court, admiralty court, courts of Scotland and Ireland, and the colonies, and the courts of foreign countries.” And the court interferes with proceedings in cases pending, whore the court in which they are pending has jurisdiction to investigate tho matter. 1 Spence’s Eq. Jur. 426. In Lord Porlerlington v. Soulby, 3 Mylne & Keene, 104, the lord chancellor enjoined proceedings at law in tho Irish court, expressly denying any jurisdiction or supervisory power over the Irsh court, but placing the injunction wholly upon jurisdiction over the party. Then, as the jurisdiction depends upon the party, and not upon the court in which the party is proceeding, the case comes back to the inquiry, whether the facts of the case make it expedient to exercise the jurisdiction.

      E. Lane submitted an argument on the same side, but no copy of it came into the possession of the reporter.
    Hitchcock, Wilson & Wade, Otis & Wolcott, R. P. Spaulding, and JonN Harris, for the defendants, submitted the following propositions:
    I. The court of common pleas, having concurrent jurisdiction with this court, in all the suits named in the bill as *aow pending there, the parties complainant, who. have elected that tribunal, are entitled to litigate their rights there, and this court can only take jurisdiction of them by appeal.
    II. Proceedings in a court of chancery having jurisdiction of the subject matter and of the parties, can not be restrained by injunction. Much less can the proceedings of such court, having concurrent jurisdiction, be so restrained.
    III. Complainant is a stockholder, and as such is bound by the acts of the officers of the company, so far as third persons are concerned. No breach of trust, or fraud on the part of its officers, can authorize him to interfere with bona fide creditors in the pursuit of their legitimate remedies, either in chancery or at law, for the collection of their debts. The officers and directors of the company may be liable individually, or collectively, at the suit of the corporation, or of its stockholders, but the remedy is to be pursued against them alone, and not against the property pledged to others, or against persons not members of the corporation. The disputes of the corporators must be settled among themselves, without involving other parties. The relation of trustee and cestui que trust, as between the officers and stockholders, has' no existence as between either and third persons, nor as between the company and third persons, but exists only as between the corporators themselves.
    IY. The complainant, and those for whom he prosecutes, are themselves, either by their neglect of official duty, by their acquiescence, or by their positive act, so far in fault that they are not entitled to the aid of a court in chancery. He prosecutes, as is avowed, for himself, Crosby, Crittenden, Phillips, and the Philadelphia creditors.
    Y. Passing by these objections, the bill makes no case as against said suitors in chancery and several other parties defendant.
    1. As to the Palmer mortgage. In that case the necessary parties are or can be made, so that any question arising can be there fully and fairly litigated. If the officers of the company refuse to defend the suit, they are individually liable *for the broach of trust; or stockholders (if they have any right) may be lot in to defend. The usury set up is especially a matter of defense. As an independent ground of relief, it can not bo set up by the company, or its stockholders, without tendering the amount conceded to be due.
    2. As to the Harris suit. In that case, a cross-bill was filed, and a decree had, and under that decree the land has been sold. Crosby and Crittenden filed a bill of review, on hearing of which the decree below was affirmed, and they appealed to this court. Now, there is no power in a new and separate suit to review and reverse that decree for error. If reversed, it could not be set down for hearing.
    3. The administrators of Fenn can not be delayed by this suit, because they are pursuing a clearly equitable right to collect the amount due them from the company, on a land contract, or foreclose the contract. No supposed or real disadvantage to the company, from its agreement, can authorize a stockholder to interfere with it.
    4. Cyrus Prentiss is not bound to wait the result of this suit, but has a clear, equitable, and legal right, which he is at liberty to enforce against the company, without any “ let or hindrance,” from any of its stockholders.
    5. The same is true of the claim of G. A. Rickey, and of several others mentioned in the bill.
    6. As to the suits of Crosby, Crittenden, etc., the bill shows no cause for delaying them ; and, although they may prefer this dilatory course, the parties defendant in those suits have a perfect right to demand their speedy and final decision in the court where they are now pending.
    YI. The bill is multifarious, and improperly attempts to litigate distinct and independent matters, between different and distinct parties.
    YII. The bill shows the corporation insolvent, and thereforo ■complainant has.no interest in the subject matter of the suit, except on the supposition that he is liable individually for the debts of the company; and no such liability is created *by the charter against stockholders who have paid their stock in full.
    YIII. The case, as made by the pleadings and exhibits, shows no equity in favor of the complainant, inasmuch as it is manifest that the suit is prosecuted by Crosby, Phillips, and Crittenden (themselves parties to most if not all of the frauds complained of), for the purpose of still further embarrassing the officers and creditors of the company in closing its affairs; and the result of sustaining the suit must necessarily be almost endless delay and the entire loss of the fund, which ought to be appropriated to the payment of the debts of the company.
    In support of these propositions they referred the court to the following authorities:
    Constitution of Ohio, art. 3, secs. 2, 3; Swan’s Stat. 222, 698; 1 Mad. Ch. 128; 11 Ohio, 273 ; 16 Mass. 167 ; 1 Spence, 675; 4 Edw. 535; 5 Ohio, 162; 1 Story’s Eq. Pl. 221; 1 Bar. Ch. Prac. 40; 10 Ohio, 456; 4 Ves. Jr. 438, n.; 1 Story’s Eq. 506, n.; Swan’s Stat. 28, 29; 1 Mad. Ch. 100, 104; 9 Wheat, 532; Eden on Inj. 11 ; Jeremy on Eq. Jurisd. 307; 2 Story’s Eq. 155 ; Mitf. Eq. Pl. 127; Bearme’s Eq. Pl. 69 ; 3 Atk. 603; Ambl. 613; 1 Cox, 342; 2 Paige, 26; 1 Barb. Ch. 53; 1 Sch. & Lef. 262; 2 P. Wms. 161; 1 Ves. 16; 1 Atk. 491; 3 Johns. Ch. 58; 7 Ohio, 492; 8 Ohio, 219; Ib. 248; 1 Story’s Eq. 328; Cases Tem. Talb. 217; 1 Ves. 211; 4 Ves. Jr. 638; 8 Ves. Jr. 520 ; 18 Ves Jr. 469; 1 Sch. & Lef. 296 ; 4 Johns. Ch. 619; Cases Temp. Talb. 318; 1 Keen, 714; 2 Story’s Eq. 148, 182 ; 12 Ves. 472 ; Cooper’s Eq. Pl. 182; Mitf. Eq. Pl. 181; 18 Ves. 80; 11 Ohio, 417; 5 Johns. Ch. 141; 1 Story’s Eq. 300.
   Read, J.

This case comes before the court upon motion to dissolve the injunction, and on demurrer to the bill.

The bill seeks to embrace in one suit the entire affairs of the Portage Canal and Manufacturing Company, and unite *in a single litigation, not only every question which can arise among the stockholders themselves, but the settlement of every question, both in law and equity, which may exist between the company and third persons, and to accomplish this end, not only to exclude the jurisdiction of every other court, but to withdraw matters already j>ending in courts of competent jurisdiction. When we look into the history of this company and discover the multiplicity of questions, in law and equity, to which its conduct and and those connected with it have given rise, between themselves and third persons, running almost .the entire range of legal and equitable remedy, embracing trusts, frauds, conspiracies, usury, equitable liens, embezzlements, contracts of every character, debts of every description, judgments at law, decrees in chancery, bills of review, actions of law, and bills in chancery pending, we feel that the court which could wrap up the whole in' one suit, and would have power and energies equal to the necessities of such a case, should at least have most ample powers.

Whether this court, having a regard to the well-known principles of equity proceedings and jurisdiction, and confining itself to the exercise of its powers, without encroaching upon courts of equal power and jurisdiction over the subject matter, can entertain this bill, is the question for determination.

The chief ground for dissolving the injunction is, that it restrains the action of a court of equal and concurrent jurisdiction. It is true that an injunction, to restrain proceedings in chancery is a novelty in equity practice, but whether a case might not arise which would induce the exercise of the restraining power in this mode, which in England is of frequent exercise in a different form, not suited to the organization of our courts, it is not necessary for us to decide. Wo shall confine ourselves to the inquiry, whether a court of equal jurisdiction can enjoin the proceooings of another court of equal jurisdiction. This, I presume, would not be claimed. But so far as the injunction proceeds in this case, ' *it extends to matters over which the court of common pleas has precisely the same jurisdiction as the Supreme Court. If the Supreme Court could enjoin the proceedings of the court of common pleas, the common pleas could equally enjoin the proceedings of the Supreme Court; and if the Supreme Court can take the eases pending in the common pleas and draw them to its own jurisdiction, we see no reason why the common pleas could not, with equal propriety, enjoin the proceedings in. this court, and take possession of this very case. The rule is, where there are courts of equal and concurrent jurisdiction, that the court possesses the case in which jurisdiction first attaches. But it is said that this court does not, by its injunction, act itpon the court, but the parties; but this, in effect, is the same thing. If this court can enjoin the suitors in the court of common pleas, and compel them to litigate a matter pending in the court of common pleas in this court, it is the same thing in effect as restraining the court. No example of this soi’t is to be found in the books. The cases cited to support this proposition from England are cases of courts of limited and inferior jurisdiction and foreign courts. But it is said that there is a necessity for this; no such necessity exists. The court of common pleas has as ample power to do justice between the parties as this court. But it is'said all these matters should be tried in one suit in order that justice may be done-We know of no principle by which parties having distinct and separate rights shall bo compelled to litigate them in one suit. Indeed, they would not bo permitted so to litigate upon ordinary and familiar principles. But it is said if these suits are permitted to go on and be carried into execution, that it will occasion ruinous loss to the company. This is to bo much regretted, and probably will be to some extent the result; but if such be the case, we know of no principle upon which we can restrain a creditor from collecting his dobt, and compel him to abide a litigation which may continue for years, involving a settlement of the entire affairs of the company.

*But the question now arises, will the court entertain the bill for final relief?

Want of jurisdiction may be mot by plea, but it is good ground of demurrer if it appears upon the face of the bill. Jurisdiction having attached to certain matters embraced in the bill in the court of common pleas, having equal and concurrent jurisdiction, this court has no jurisdiction over the same subject matter. This appears upon the face of the bill, and is, therefore, good ground of demurrer. But there is another ground of demurrer—the bill is multifarious. This is not denied.

The bill is crowded with distinct and independent matters.

But it is sought to avoid these objections, and sustain the bill, upon the ground that it is a convenient and proper mode to settle up the affairs of the company, and necessary to prevent ruinous loss—that the officers and agents of the company have been guiltyr of mismanagement and fraud in the creation of some of the debts and obligations upon which suits aro prosecuted. But unless the injunction is continued, the nocossi ty for the bill upon its chief grounds ceases; for the only reason of uniting all these interests in one suit is to prevent a sacrifice of the property by sale in parcels. But the bare fact that a person may have a great number of creditors will not authorize the debtor to compel them to litigate their claims in one suit, lest they may obtain judgments and decrees, and seize upon his property in parcels, which may occasion loss. It is a fundamental right that a person having a distinct claim may prosecute it in a distinct suit, and will not bo compelled to litigate with others. Multiplicity of suits against the same person, by others having distinct and separate rights, is no ground for equitable interference to compel a consolidation. The frauds and delinquencies of the officers and agents of tho corporation, and tho fact that they refuse to make defense to suits, will not support this bill. If it be claimed that the officers of the corporation have combined with complainants to have a *dccroe, and refuse to make a defense, in order that the property of the corporation may be sacrificed, it will not authorize this court to sustain a bill on the part of a stockholder, to call the same matter pending in a court of equal jurisdiction, in question in this court. If the proper officers refuse or neglect in such case to make a defense, the stockholder, by cross-bill or petition, should make himself a party, and obtain leave to defend. The only ground upon which this bill can be placed is that of convenience, to save costs, to prevent a sacrifice of corporate property, and a loss to creditors. Neither one, nor all of these grounds, are sufficient to authorize this court to entertain a multifarious bill, and interfere with the jurisdiction of a court of equal and concurrent jurisdiction. So far as the latter is concerned, wo do not possess the power; and as to the former, there is no principle upon which we could compel a person having a distinct right to prosecute his debtor with others, simply because there happened to be a great number of creditors, except in tho case of a creditor’s bill, where it is sought to .reach a common fund, to satisfy claims which have been previously established, and where one suit can accomplish the same end with equal benefit to all. But in this bill the righs are separate, distinct, unascertained, and conflicting; and this is not an effort to bring an equitable fund within the reach of creditors, which constitutes the unity of a creditor’s bill. There is no principle upon which it can bo sustained.

That chancery could afford the relief sought, would hardly have been expected, had not the interests involved been very large. That there has been fraud and mismanagement on tho part of tho agents and officers of the corporation, may be readily conceived ; and that some of its members may be seeking to plunder its assets, is not perhaps beyond belief; and that the corporation is in such condition that it must sustain great sacrifice; and that creditors and stockholders may be subjected to loss, may be true. But this case, although much to bo regretted, is of common example in the mismanagement and insolvency of large concerns, tand does not furnish sufficient reason to this court to give a remedy in violation of well-settled chancery principles, and to attempt to execute a controlling power over other courts of equal and concurrent jurisdiction, which it does not possess.

Injunction dissolved, demurrer sustained, and bill dismissed.

Birchard, C. J., dissented


source: Caselaw Access Project

author: Birchard, O. J.

license: Public Domain

text:
    Carlton Barto v. Eleazer Abbe.
    A service of summons in forcible entry and detainer, on the 6th day of a month, returnable on the 9th, is a good service.
    Where the complaint states that the “defendant doth unlawfully and forcibly, and with a strong hand detain,” etc., it is sufficient to give the justice jurisdiction.
    In cases in forcible entry and detainer, the justice is not authorized to sign and enter upon his docket a hill of exceptions; and, if he does, it will not be regarded by the higher court on error.
    The action of forcible detainer lies in favor of a purchaser at sheriff’s sale, made under a decree in chancery.
    The action will lie after the confirmation of sale, although the sheriff has not executed the deed.
    This is a writ of error, directed to the Suprome Court of Lorain county.
    Tho object of this writ is to reverse the judgment of tho Supreme Court of Lorain county, affirming the judgment of the court of common pleas, which latter court had affirmed the judgment of a justice of the peace.
    The action before the justice was forcible detainer, brought by Abbe against Barto. <Tbe record in the case is very voluminous, but as a sufficient statement of facts appears in the opinion of the court to show clearly the points decided, it is not inserted here.
    *H. D. Clark, for plaintiff in error.
    Reuben Wood, for defendant in error.
   Birchard, O. J.

This is a writ of error to the Supreme Court sitting in Lorain county. The cause assigned for error is, that 1he court affirmed the judgment of the court of common pleas. To determine whether this was error, it is necessary to refer to the common pleas record, by which we find that the original suit was an action of forcible entry and detainer commenced before a justice of the peace, and after judgment removed into the court of common pleas, by certiorari, where the magistrate’s judgment was affirmed. Beginning with the history of the suit, the first process was a summons duly served on July 6, 1847, and the 9th day of the same month, was appointed for the trial.

On the appearance day the plaintiff in error, who was defendant below, moved to quash the writ, because there was not three days’ notice. This motion was overruled, and hence the question is a second time presented for our decision. It is a rule well settled that in counting the days, the day of service is one day. The 6th, 7th, and 8th make then the three days which the law required, exclusive of the 9th, or day appointed for trial.

It was also objected that the summons and complaint were insufficient, and these objections were overruled.

The ground of objection to the complaint and writ were that they did not state that Barto held over his term, or that he occupied without color of title, or that Abbe was a purchaser on execution, etc. These objections were made under the assumption that the complaint in this form of action should sot forth and describe facts that would show the justice of the peace had jurisdiction.

The statute gives the form of the writ which was followed in this case. The complaint follows also the words of the statute. Swan’s Stat. 417. This has always been held ^sufficient. The proceedings of magistrates are required to be treated with great liberality. It would be more than could be reasonably asked under ordinary circumstances, to insist that these convenient and useful tribunals should pay the same regard to technicality, that might be proper in tho courts of record ; yet in the latter the form of this complaint would be sufficient. It alleges that “ the said C. Barto doth unlawfully and forcibly and with a strong hand detain from the possession of,” etc., the land therein described. If the plaintiff in detainer had a cause of action that could be substantinted by proof, this form was sufficient; and, if not, the defendant would defeat him for a failure in proof.

The objections enumerated, from the third to the tenth, inclusive, are only presented upon a bill of exceptions, which is no part of the record of the magistrate’s proceedings. The statute has not required or authorized a justice of the peace to sign and enter upon his transcript a bill of exceptions, and where he places matter upon his docket at the instance of one of the parties litigant before him, which the law does not authorize and require, it ought not to be noticed ; and in this court has not for many years been treated as evidence upon which error could be assigned. Upon the circuit it was supposed that some recent statute had mad.e it the duty of justices of the peace to sign bills of exceptions, and all these assigned causes of error were then examined and overruled. But we are not now able to discover any such provision in any law, and none has been referred to, save in the statute providing'for jury trials before justices of the peace (Swan’s Stat. 533), section 13 of which act gives the right to take bills of exception and make them part of the record in the cases only which are triable under the provisions of that act. Forcible entry and detainer is not one of them.

Having come to this conclusion, it is manifest the judgment must be affirmed, for no error is shown to have intervened from the beginning. Still as several questions were supposed by counsel to be well presented, and have been *argued, and were disposed of upon the circuit, it may be satisfactory to them to state that we should unanimously affirm the judgment of the justice, were all the points predicated upon the bill of exceptions properly before us. We do not doubt that when a sale has been made by a sheriff on a decree in chancery directing a sale of land, and the sale has been confirmed by the court, that a recovery of possession may be had in this form of action, the same as if made upon execution issued on a judgment at law. Decrees in chancery are by statute enforced the same as judgments at law.

Again, all that is necessary in forcible detainer in such a case, is to show a sale and a confirmation thereof by the court issuing the writ. The words of the statute are “proceedings in this act may be had in all cases in sales on execution, after such sales shall have been examined by the proper court, and the same by said court adjudged legal.” By this statute the purchaser is not required to delay proceedings to obtain possession, till the sheriff has executed his deed. His right to the property in cases when the deed is from a sheriff, is from the day of sale, and by relation the deed would take effect on that day. It was competent for the legislature to confer the power of acquiring in a summary way a speedy possession, and we think they intended to, and have given that power in this act. The want of a seal to the sheriff’s deed is no cause of error, because the deed was not required.

Again, the objection was not pointed out at the time. Counsel, as the bill shows, objected generally to the introduction of the record, and all the proceedings under it. This was not good practice. They should have named the specific objection, and pointed it out to the magistrate. And if they could not point out some such objection that was valid, a justice of the peace might well treat the unenumerated objections as waived. Judgment affirmed.


author: Hitchcock, J.

text:
    *Sidney Sea v. Jeremiah Carpenter and others.
    When the facts are found in a decree, it will not be reversed on bill of review, because the court may have misjudged as to the weight of the evidence upon the particular matter in issue.
    Where an agent is unfaithful to the trust, and abuses the confidence reposed in him by his principal; where he misconducts himself in the business of his agency, he may be deprived of commission and compensation.
    This is a bill of review, reserved in Seneca county.
    The bill was filed in the court of common pleas of Seneca county, and being dismissed in that court an appeal was taken to the Supreme Court. The record is of great length, setting forth the entire pleading in the original case, the evidence, the decree sought to be reviewed, the opinion of the presiding judge pronouncing the decree, together with the errors assigned. To give a full abstract of those papers would be useless. All that is necessary to be known can be found in the opinion of the court.
    Wood & Sea, for complainant.
    Ewing, Stem & Hall, for defendants.
   Hitchcock, J.

In a case so unnecessarily voluminous as the one now presented for consideration, it will be extremely difficult, within any ordinary compass, to give such a statement of tho case, that it will be fully understood. The original bill is based substantially upon facts like tho following : A man by the name of Moses Olds, many years since, resided in the State of New York, and while there intermarried with Rebecca (afterward Rebecca Carpenter), by whom he had two children, Arvilla and Horace. He abandoned his wife and settled in Kentucky, where he accumulated a large property. In Kentucky he intermarried with Elizabeth *Thomas, by whom he had several children. Some years after Moses Olds absconded, his wife Rebecca intermarried with Caleb Capenter.

Arvilla Olds subsequently intermarried with Jeremiah Carpenter.

In October, 1838, Moses Olds died, leaving four children by his Kentucky wife, two of whom, Hiram Curtis, and Sophronia, being infants, died shortly after their father. Moses Olds attempted to dispose of his estate by will, giving one-half to his wife Elizabeth for life, but she died before the testator. Under these circumstances, questions were raised as to the validity of the will, and whether tho share devised to Elizabeth descended to the heirs, she having died before the testator.

By his will Moses Olds loft to his daughter, Arvilla Carpenter, a legacy of $100, which was received by her in 1839 or 1840.

In 1844 Jeremiah Carpenter consulted with the defendant, Sea, who is a lawyer, upon this business. Sea, in consequence of this consultation, wrote to Kentucky and procured a copy of the will, and afterward entered into an arrangement with Carpenter and his wife, by which he undertook to go to Kentucky, and recover the rights of Arvilla and her mother Rebecca, in the estate or property of Moses Olds and Horace Olds, the brother of Aiwilla— the said Rebecca claiming a dower interest in said estate, and Arvilla claiming as heir.

In October, 1844, Sea went to Kentucky and contracted away all tho rights of Arvilla and Rebecca, in all the property of whatsoever description, of which Moses Olds and his infant children died possessed, for which he received securities to the amount of $3,754, payable in one year, with interest, and which has been since paid to him. On his return he procured Arvilla and her husband, and Rebecca and her husband, to execute a quitclaim deed, to certain grantees in Kentucky, of their rights in the several estates, and executed to Arvilla and her husband his own note for §300, *payable in eighteen months, and delivered the same to them in full of all their claims upon him in the premises.

Such are some of the charges in the bill. The complainants further insist that, relying confidently upon Sea, they were induced to execute certain deeds and other instruments of writing, not knowing exactly their contents, but being informed by him that it was necessary to be done. They charge that Sea concealed from them the amount by him received in the compromise, and insisted that he receivod but §600. That from the confidence reposed in him they were induced to agree to give him one-half of what he should recover from said estate, but that he has refused to allow them anything over and above the said $300. Thoy'further charge that in the compromise in Kentucky ho sacrificed their interests to a greater amount than the said §3,754.

Among other things, it is prayed that the said Sea may bo. decreed to pay the complainants such amount as may be found equitably due to th em.

To this bill Sea filed an answer. Of this answer it is only necessary to state that he admits that ho undertook to attend to this business, but not upon the terms stated in the bill. He says the agreement was, that Jeremiah and Arvilla should procure a quitclaim from Caleb and Rebecca Carpenter to themselves, of all the interest of said Rebecca in the estate of Moses Olds, and that Jeremiah and Arvilla Carpenter should convey to him, Sea, all the interest of said Arvilla in said estate for his own use, and they were to give him a power of attorney to collect and dispose of the interest to be derived from Caleb and Rebecca Carpenter for the use of the said Jeremiah. That deeds and a power of attorney were executed accordingly. He says further that he made the best compromise he could, upon which compromise he received notes to the amount set forth in the bill. By the terms of the compromise he was to procure release deeds from the Carpenters, which deeds were executed. Ho states that upon his return from Kentucky he disclosed all *tho facts to Jeremiah and A.rvilla, and that they agreed to receive §300 as their share, for which ho gave his note. In making the compromise the claim of Rebecca was abandoned, and all that was received was for the interest of Arvilla, which interest had been transferred to him, and he did not feel himself under any obligation to pay Jeremiah and Arvilla anything, but agreed to give them the $300. When he gave the note the complainants gave him a receipt and memorandum, explaining the whole settlement. This paper is made an exhibit. Denies that he was to receive one-half for his services.

Subsequently an amendatory bill was filed charging that said bond to Sea, and memorandum of settlement, were fraudulently procured from complainants. This amended bill was answered.

Testimony was taken, and at the October term of the court of common pleas, 1846, the following decree was entered :

“This day came the parties by their solicitors, and this cause came on to be heard upon bills, answers, exhibits and testimony, on consideration whereof and the court being fully advised in the premises, do find the equity of the case to be with the complainants, and that the said deed of conveyance from said complainants to the said respondent, Sidney Sea, bearing date Sepetembor 4, 1844, and the memorandum of settlement signed by the said complainants bearing date October 28, 1844, were severally fraudulently procured from the said complainants by the said Sidney Sea, which last-mentioned deed and memorandum of settlement are each ordered, adjudged, and decreed by the court to be null and void; and the court further order, adjudge, and decree that the said power of attorney from the said complainants to the said Sea, and the agreement between the parties relating to the estate of Horace Olds, deceased, be and the same are hereby canceled. And the court further find that the said Sidney Sea sold the interost of the said complainants in the several ^estates of Mary B. Olds, Hiram Curtis Olds, and Sophronia Olds, deceased, and received therefor the sum of $3,754, which sum including interest thereon from October 18, 1844, until the present time, being the sum of $4,200.48, in equity belongs to the said complainants. It is therefore ordered, adjudged, and decreed by the court, that the said Sidney Sea pay to the said complainants the said sum of $4,200.48, and the cost of this suit, taxed at $49.35, one day after the rising of this court, and in default thereof that execution issue as upon judgments at law. And it is further ordered, adjudged, and decreed by the court, that all other equities in favor of the said complainants in the premises be and the same are hereby expressly reserved to said complainants, excepting that as to said note of $300, executed by said Sidney Sea to said complainants as aforesaid, the same be placed upon the files of this court to be canceled, which is done accordingly.”

The errors complained of are substantially as follows:

1. That the court erroneously found the equity of the case with the complainant.

2. That the court erroneously found that the deed from the complainant to Sea, dated September 4, 1844, was fraudulently procured by Sea.

3. That tho court erroneously found that the memorandum of settlement, bearing date October 28, 1844, was fraudulently procured by Sea.

4. That the court erroneously ordered and decreed, that the said deed and memorandum of settlement be held null and void.

5. That the court erroneously found that the said Sea sold the interest of the complainants in the estates of Moses, Hiram Curtis, and Sophronia Olds.

6. That the court erroneously found that Sea had received for the complainants $3,754.

7. That said court erroneously found that said Sea had *in his hands $4,200.48, which in equity belonged to the complainants.

8. That said court erroneously ordered and decreed against said Sea, that ho pay to the complainants said sum of $4,200.48, and $49.35 costs of suit.

9. The decree is against equity.

10. It is contrary to law.

11. That the court erroneously refused to continue the case.

It will bo seen that most of tho errors assigned have reference to the finding of the court. It has been repeatedly decided by this court, that where the facts are found in a decree, we will not reverse that decree, because the court may have misjudged as to the weight of the evidence upon the particular matter in issue. From the slight examination which we have made of the evidence in this case, however, we are not prepared to say that there was any mistake in the finding of the court.

The fourth error assigned is, that the court decreed that a certain deed and memorandum of settlement should be held null and void.

There certainly can be no error in this, if the fact be as found by the court, that this deed and memorandum were fraudulently procured from the Carpenters by the complainant. Such being the fact, it follows, of course, that they must be declared null and void.

The eighth error assigned is, that the court decreed that certain moneys in complainant’s hands, belonging to the Carpenters, should bo paid over to them. This, too, follows as a necessary consequence from the finding of the court.

The only difficulty we have had in the case arises from the fact, that no provision is made in the decree for a compensation to the complainant, for his expenses and services in the transaction of this business. It is alleged in the original bill, and we have no doubt of the fact, although it is most positively denied in the answer, that he was to have one-half of what he should recover. Under the ^circumstances, he ought not to have received this much, but we should have been better satisfied if some compensation, a reasonable compensation, had been allowed him. But the question now is, whether there is, in fact, anything erroneous in the decree.

It is apparent that although the original agreement was to receive one-half, he at an early period so managed the business as to attempt to secure to himself the whole. The pretense set up in the answer is, that he was to have the share of Arvilla, for which he was to collect for the use of her husband the share of Rebecca ; and this was to be brought about by this kind of management: Jeremiah and Arvilla were first to procure to themselves a release from Rebecca of her interest, and were then to convey their own interest to Sea. A deed to this effect was by them executed, which was found by the court to be fraudulent. Now this maneuvering does not look right. Then, again, when the compromise is made, the interest of Rebecca is entirely, abandoned. All that is received, is received for the interest of Arvilla, and that interest has been previously vested in Sea. A faithful agent would never thus have transacted business. Besides all this, the complainant, from the time of this compromise, has retained all this property in his own hands, denying the right of his principal to any part of it. Such being the circumstances, the court of common pleas applied to him the rule, applicable to agents who are unfaithful to their trust, who abuse the confidence reposed in them, who misconduct themselves in the course of their agency—-the rule, that in such cases the agent shall receive no commission or compensation ; and we are not prepared to say there was any error in this.

The demurrer is sustained, and the bill dismissed with costs.

Birchard, C. J., dissented, holding that the court of common pleas erred in not allowing Sea, some compensation for his services.


author: Avery, J.

text:
    * James Sample v. The Administrator of Phebe Ross.
    An injunction can not be issued by the court of common pleas to restrain an execution of the Supreme Court, upon a decree for alimony.
    The remedy is by application to the Supreme Court, on the return of execution.
    This is a bill in chancery, reserved in the county of Butler.
    The facts arc substantially these :
    Phebe Ross obtained a divorce from her husband, Daniel Ross, in the Supreme Court in Butler county, in 1832. The court granting the divorce reserved to her the payment of $100 in 30 days, besides $37.50 semi-annually during the joint lives of the said Phebe and Daniel, and gave a lien for the several installments, upon a certain tract of land belonging to said Daniel, situated in Butler county. Before applying for the divorce, said Phebe Ross employed one John W. Milliken as her solicitor, to prosecute for the divorce, and executed a written agreement to pay him one-fourth of the amount to bo recovered as alimony. Soon after the decree, the complainant purchased this tract of land of Daniel Ross, and of said Milliken his right and interest in the contract and payments reserved by the decree. Complainant afterward sold the land and executed a deed to the purchaser, with a covenant of warranty therein. He regularly paid the three-fourths of the semi-annual installments, and retained the one-fourth. This he continued to do from 1832, the time of rendering the divorce, till some short time before the filing of this bill in 1845, when said Phebe took out an execution upon the decree. In this execution, the clerk of the Supreme Court, by her direction, embraced all the parts of the several installments retained as aforesaid, with interest *upon each, down to the time of issuing the writ, amounting altogether to somewhat more than $400. This execution was levied upon the land charged as aforesaid in the decree.. To enjoin the said Phebe from proceeding to sell the land upon that execution, the present bill was filed in the common pleas, and an injunction allowed to restrain further proceedings. The case-was taken into the Supreme Court of said county, by appeal, and-was reserved for hearing in bank.
    L. D. Campbell and Henry Stanbery, attorney-general, for complainant, cited the following authorities :
    15 Mass. 30; Story on Cont. 45 ; 2 Kent’s Com. (5 ed.) 153, 154, and notes; 1 Pet. 105; 6 Pick. 39; 4 Met. 478; 1 Am. Ch. Dig. 534.
    Y. Chase, for respondent, submitted the following authorities:
    1 Story’s Eq. 657, 658; 1 Mad. Ch. 127; 2 Story’s Eq. 837; Story on Prom. Notes, 203; Walker’s Int. 227, 363, 394; 1 Str. 94; 2 Kent’s Com. 235, 236; 15 Mass. 30; 6 Pick. 89; 1 Story’s Eq. 229-236, and notes.
   Avery, J.

Questions like these have been discussed in this-case: How far are a married woman’s contracts binding upon her? What is the effect of her repeated recognition of the contract after becoming a feme sole, and of her acceptance of the successive payments as they fell due according to the terms of the-agreement? The question, besides, has been put, whether this is-a valid contract aside from the alleged incapacity of a married woman to contract. In support of the case made by the bill, it is-claimed that nothing is due upon the decree, or that, at all events, the execution has been irregularly issued, after the lapse of so-many years, at least for the old installments.

These questions, and any others looking toward an exemption from the effects of this execution, will probably arise *upon a future occasion. They may all be heard and determined in the county by the Supreme Court, whose process, it is said, has been improperly used. The court can see in the case, no such danger of serious injury, from what is alleged to be an abuse of its process, as to justify an injunction from the court of common pleas. The action of the Supreme Court upon this execution will become-indispensable, before it can work any very serious injury. On the return of that execution the whole subject will be within the power of the Supreme Court, and they can furnish to the parties all proper •relief.

Since, then, ample remedy may he had, upon a motion to set ¡aside the execution in that court, or by some other form of applioation; and as at the time of filing this bill, there was no such •evil existing or threatened, as to call for the injunction, it will, for •¡that cause, be dissolved, and the bill dismissed.