#### *Brent &c. v. Peyton.

February, 1843,

Richmond.

(Absent Cabell, P. and Brooke, J.)

Slaves—Injunction—Equity Jurisdiction—Case at Bar.

—A feme sole owning slaves made a bill of sale of them for 500 dollars, took from the purchaser his bond for that sum, and on the same day made her will releasing the bond. She died soon after-wards, and her will was offered for probat to the county court of Nelson, and the case continued until the next term. Before that term a bill in equity was exhibited to a judge in vacation, by the purchaser against two defendants, setting forth that at the time the instruments were executed the slaves were in Stafford, but that after the death of the testatrix, and before her will could be proved, one of the defendants went to Stafford and took possession of the slaves, and together with the other, who aided him in getting possession of them, had clandestinely removed *400• them, or was clandestinely removing them, from the county of Stafford, and would probably sell them to a trader, or so secrete them astoputitout of the complainant’s power to regain the possession of th em. An inj un ctlon was awarded, and the order directed to the clerk of the circuit court of Nelson, though neither the defendants nor the slaves had ever been in that county. The defendants, in'their answers, objected to the jurisdiction, but did not set up any title to the slaves except through the decedent, and as her next of kin. Held, 1. that the case made by the bill was not one for the equitable jurisdiction of any court; and 2. that if it were, that jurisdiction could not have been properly exercised by the circuit court of Nelson.

On the 8th of October 1833, Mary H. P. Brent, a maiden lady then living in Orange county, made a bill of sale to her cousin Henry S. Peyton for five slaves, for the consideration expressed therein of 500 dollars. The slaves consisted of a negro woman, her three children, and a girl named Eliza.

For the 500 dollars a bond was executed; but on the same day miss Brent made her will, whereby she gave the bond to Peyton.

<. Charles B. Quisenberry and another witness attested the bill of sale and the will,, and the place of execution *of both was Quisenberry’s house in Orange. Frederick S. Peyton was by the will appointed executor.

The testatrix, after making her will, removed to the residence of Henry S. Peyton in Nelson county. She died soon afterwards.

On the 26th of November 1833, the will was offered for probat in the court • of Nelson county, and the case continued until December court.

Before December court, to wit, on the 4th of that month, Henry S..Peyton exhibited a bill, setting forth that at the time of the execution of the said instruments Eliza was in the possession of Quisenberry, but the negro woman and her children were in the county of Stafford; that a short time after the death of miss Brent, Quisenberry, who was the husband of her sister, came to Nelson, but that immediately after her funeral, and before her will could be proved, he went to Stafford and took possession of the negro woman and her children, and together with one John Brent, who aided him in getting possession of them, had clandestinely removed them, or was then clandestinely removing them, from the county of -Stafford, and that he would probably sell them to a trader, or so secrete them as to put it out of the complainant’s power to regain the possession of them. The bill prayed that Quisenberry and Brent might be made defendants; that they, and all others combining and confederating with them, might be injoined from selling or removing the said slaves out of , the county where they then were; that a receiver might be immediately appointed to take possession of the "said slaves and hold them in safe custody until the complainant’s rights should be established to the satisfaction of the court, or until the farther order of the court; that the said slaves might be restored to the complainant, and the said Quisenberry and Brent compelled to account for the value of such as had been, or might be, sold by them or either of them; and for general relief. *Judge Thompson, to whom the bill was presented, awarded an injunction, and directed his order to the clerk of the circuit court of Nelson. Process issued from that court, by the judge’s order, directed to the sheriff of any county in the commonwealth. And the process was served by the sheriff of the county of Orange, in which county the defendants and the slaves were at the time of service.

In the answers of the defendants, the jurisdiction of the court was objected to on two grounds: 1st, that if the plaintiff had a right to the slaves under the bill of sale, his remedy at law was complete; and 2dly, that the defendants were not residents of the county of Nelson, and never acquired or held possession of the slaves one moment of time in that county. The defendants set up no title to the slaves except through the decedent, and as her next of kin. They impeached the transactions of the complainant with the decedent for fraud and imposition, alleging that the decedent was incompetent to make a valid contract, because of her great imbecility of body and mind, and that she did not know the contents of the papers she was executing. Quisenberry also alleged, that at the time of his attestation, the complainant misrepresented to him the nature of those papers.

On the 24th of December 1833, the sentence of the county court of Nelson was pronounced, refusing to admit the will to-record. From this sentence the executor • appealed. And on the 30th of September 1834, the circuit court reversed the sentence and ordered that the will be established.

The next day, to wit, the 1st of October 1834, the injunction cause was heard, and the following opinion pronounced by the circuit court:

“The court is of opinion, that in consideration of the pendency, in the courts of this county, of a contest for probat; in consideration that the bill of sale and will *are so closely connected and interwoven in time, place,- circumstances, and consideration moving to their execution, as to constitute but parts of one transaction, making even the bill of sale, with the parol agreement* therewith *401connected, though a contract as to some purposes, yet testamentar}' as to others; and in consideration of the fact that the defendant Charles B. Quisenberry was a subscribing witness to the bill of sale, and is now seeking to impeach his own attestation,--that some court of equity had jurisdiction to interpose by injunction, and, under the circumstances of this case, that that jurisdiction attached to this court, notwithstanding the nonresidence of the defendants and the absence of the property, relied on in the answers.”

Wherefore the court decreed that the injunction be made perpetual; that the defendants deliver up to the plaintiff the slaves mentioned in the bill; and that the said defendants render before a commissioner an account of the heirs of the said slaves from the time they became possessed thereof.

On the petition of the defendants Brent and Quisenberry, an appeal was allowed.

James Garland for the appellants. It is a standing and unyielding principle of equity, that where a party has a complete remedy at law, equity will not interpose. Story’s Bq. PI. 373 ; Mitford’s Eq. PI. 123 ; Cooper’s Eq. PI. 124; Beames’s Pleas in Equity 79; Thornton & others v. Spotswood, 1 Wash. 142; Tarpley’s *adm’r v. Dobyns, 1 Wash. 185. This principle has been so rigidly adhered to, that in cases where parties had a just legal defence, but neglected to make it at law, equity has refused to interfere. Chapman &c. v. Harrison, 4 Rand. 336. What fact is stated in the bill, that interposed the slightest obstacle to a complete remedy at law? Is it the apprehension that the appellants, on taking possession of the slaves, would remove them from the county of Stafford to some other county? This was no obstacle, because the remedy at law existed as well in one county as another. In whatever county the defendants were, they were amenable to the process of the court of that county; and the bill does not intimate that they intended any removal, either clandestinely or otherwise, out of the state. A suspicion is faintly expressed that the slaves would be sold to a trader; but even with this suspicion, the appellee does not intimate that the appellants would so remove their persons as to be out of the reach of the process of a court of law.

II. The circuit courts, sitting in chancery, have jurisdiction over all persons and in all causes in chancery within their respective counties. Sess. Acts 1830-31, p. 47, *%*22. The defendants were not, when the bill was filed, and never had been, residents of the county of Nelson; and the slaves were not, and never had been, in that county. The question of jurisdiction is not affected by the probate case. If the defendants had demurred to the bill for want of jurisdiction, the demurrer must have been sustained: the record of the probate case could not have been introduced into the injunction case, for the purpose of overruling the demurrer. The exception taken to the jurisdiction in the answers was equivalent to a demurrer.

Patton on the same side.

The appellee shews by his bill that he was able to establish the validity of his title *at law, and makes no suggestion that the defendants were concealing themselves so as to evade legal process. The process i from a court of law would have been just as effective as this bill. The bill is in effect an action of detinue. The class of cases authorizing the interference of equity to prevent the sale of property under execution may be relied on: but the jurisdiction exercised in those cases is not extended to others. In Parks’s adm’r and heirs v. Rucker, 5 Eeigh 149, a stronger case than this was presented for the exercise of equitable jurisdiction, but the court refused to interfere.

II. If any court of equity could interfere, there is no foundation for the exercise of jurisdiction by the circuit court of Nelson. The rule on this subject is prescribed by the act 1 R. C. 1819, p. 203, ch. 66, 38; Sess. Acts 1830-31, p. 56, ch. ,11, § 41; Supp. to 1 Rev. Code, p. 151, *l*41. And the interpretation placed upon this act in Randolph’s ex’or &c. v. Tucker & al., 10 Beigh 655, is decisive of the present case. Here the bill makes no suggestion that any proceeding was apprehended in Nelson ; the act apprehended was an act in Stafford. There is no suggestion even that the defendants contemplated removing the slaves out of the commonwealth ; and in this respect the case is less strong than Randolph’s ex’or &c. v. Tucker & al.

Robinson for the appellee.

Upon the statement in the bill the defendants were clandestinely carrying off property to which neither of them had any right. That right was in the plaintiff, if his bill of sale was valid; and if the bill of sale was void, the right would be in the personal representative of the grantor, when there should be a grant of probat or administration. Brent and Quisenberry had right in neither aspect, and they claimed none. They were mere bailiffs or trustees for the parties having right: and when it was seen that *they were violating their duty, any one interested had a right to come forward and ask a court of equity to do what was necessary to preserve the property. This is but one of many cases in which the interference of equity by injunction is indispensable “to secure the enjoyment of specific property; or to preserve the title to such property; or to prevent frauds or gross and irremediable injustice in respect to such property.” 2 Story’s Equity, p. 190, | 905. «

The striking feature in the case is, that according not only to the allegations of the bill, but the admissions of the answers, the defendants had no legal title to the property. They were merely a part of the next of kin of the decedent, and could claim only through her personal representative such proportion of the slaves as might re*402main after the payment of debts, and could not have that unless the bill of sale were void. It could not be necessary for the plaintiff to go to law to recover a legal title from them, when they asserted no legal title at all. All that they had a right to ask was, that the property should be preserved until there should be a personal representative capable of disputing with the plaintiff the legality of his title. The injunction which the plaintiff sought would attain this, and the granting it, therefore, meted out exact justice to both parties. Suppose the case reversed,—suppose that after the death of miss Brent and before the grant of probat or administration, Peyton had obtained possession of the slaves, and been clandestinely removing them, and in this state of things a distributee had filed a bill asking an injunction to prevent the' property from being improperly removed before there was any personal representative; can there be a doubt that such injunction would have been awarded? It would have been indispensable to justice, since the distributee would have no legal remedy against the plaintiff. Atkinson v. Henshaw, 2 Ves. & Beames 85. *Here, too, an action of detinue would have been wholly inadequate. The defendants were going from county to county, and by the time the plaintiff could get a writ from the office of any county, and give it to -a sheriff, they would have been in another. Independently of which, detinue has never been considered so efficient a remedy to preserve slaves as an injunction, where a removal is apprehended and distinctly alleged. No other remedy would have been effectual except that adopted here; to wit, a subpoena and injunction directed to the sheriff of any county in the commonwealth.

II. Admitting that some chancellor might award such injunction, judge Thompson clearly had jurisdiction to award it. Por the act referred to on the other side (§41), provides that the judges shall each have and exercise a general jurisdiction in awarding injunctions, whether the judgment or proceeding injoined be rendered within or without their respective circuits, or the party against whose proceeding the injunction be asked be resident within or without the circuit. The objection is merely that the order of the judge was not directed to the clerk of the circuit court of that county in which the proceeding was apprehended. But where was the proceeding apprehended? If the slaves had already been removed from Stafford, it was not there. It must have been in some other county, through which the removal was then going on, or in which the sale or secretion was then taking place; but in what other county, was unknown to the plaintiff and to the judge. Was this a sufficient reason for a denial of justice? Surely not. The general principle, that where a jurisdiction exists, every necessary power shall be implied to carry it into effect, forbids any such conclusion. It would be peculiarly improper under this statute, which is remedial. Such a construction should be put upon it as will advance the remedy. The case of Cocke & Co. v. Pollok & Co., 1 Hen. & Munf. 499, exhibited the curious *spectacle of two chancellors respectively disclaiming jurisdiction of a bill for an injunction to a judgment, in a case in which jurisdiction ought to have been exercised by some chancellor, and could not have been exercised by any save one of those two judges. And what is a little remarkable, judge Tucker thought both right in refusing. But the two other judges did not think the state of the law quite so defective, and redress was obtained. The legislature nevertheless acted on the subject. They thought it best that the judge of each superior court of chancery should have a general jurisdiction in awarding injunctions.. Sess. Acts 1813-14, p. 48, ch. 16, *4*18. Instead of determining, as the court of appeals had done, which of the two should have jurisdiction, the legislature determined that jurisdiction might be exercised by éither of them, or by any other judge. The term jurisdiction excludes the idea that any party or any officer can refuse to obey the order of a judge awarding an injunction, upon the ground of its being extrajudicial. The judge having jurisdiction, his order is to bind to the extent to which he acts. No clerk is to refuse to issue process, upon the ground that the judge had no jurisdiction to order him to.issue it: no sheriff or party is to refuse to obey, upon the ground that the judge has directed his order to, and caused the process to issue from, an improper court. What then is the meaning of the latter part of the section? It does not determine when the judge has jurisdiction, but it points out a course for making his jurisdiction effectual. It is a guide to him in the exercise of his jurisdiction, which he is to follow wherever he can. But where, from the nature of the case, the direction in the latter part of the clause furnishes no guide, the judge must act as he would have done had there been no such direction. In such case the judge of a district court of chancery would have directed his order to his own clerk. Now, the judge of a circuit *court has several clerks within his circuit, and he must of necessity direct his order to one of those clerks; to which of them, is left to him in the exercise of a sound discretion. In the original act, the direction in regard to a ne exeat was, that it should be directed to the clerk of the court of that district in which the defendant ■resided. The consequence of this being palpable, the legislature made an amendment by the act in 1 R. C. 203, *4*38. Their meaning is thus shewn to be, that in the cases in which the judge acts under the 38th section, such a course is to be pursued by him as will make his order effectual. That course, here, was to direct the order to the clerk of some court within the circuit ; and the remarks of the judge, con*403tained in his opinion, shew that Nelson court was more proper than any other.

Stanard was on the same side, but added nothing to the views presented by Robinson.

C. Johnson in reply.

The case of Armstrong v. Huntons, ante, pp. 323, shews that, as a general rule, a court of equity has no jurisdiction to try the title to slaves. In the present case, a writ in detinue might have been more readily served than the process of injunction, and the finding a full value wouid have given as much security for obtaining the specific property as any action of a court of chancery. The plaintiff sets up a title under an absolute conveyance; a title purely legal. The defendants stand amenable to him without regard to the fate of the will. They have the possession of the property, and have a right to oppose that to the plaintiff. It is necessary that the plaintiff should state in his bill some ground of equity ; but there is none. The judge of the circuit court of Nelson, however, has thought proper to bring the case into his court, because another case was pending in that county, (not in his court but *in the county court) and because the deed and will were executed about the same time. Because two questions depend on similar evidence, are they to be tried together? But there is not even foundation for this: the decedent might be competent one hour, and incompetent the next. In such a case as this, not even consent could have given jurisdiction.

II. If the case of Randolph’s ex’or &c. v. Tucker & al. be law, it is conclusive of this case. If that bill ought to have been sent from James City, this ought to have been sent from Nelson. But it is said, the bill did not give information where the proceeding was apprehended. It is new ground, that a defect in the bill is to be made the foundation of jurisdiction. Suppose the bill had been carried to the judge of the circuit court of Orange, and he had directed the order to the clerk of the circuit court of Nelson, would that have given jurisdiction to Nelson court? Under the former law, no judge could act beyond the limits of his district. Under the present law, any judge may award an injunction ; but the order is to be directed to the clerk of the proper court, and is to have the same effect as if made by the judge of that circuit.

*

The language of the hill was as follows: “At the , time of the execution of the deed aforesaid, your orator executed his note to the said Mary H. P. Brent for the sum of 500 dollars, the interest of which, during the life of the said Mary, he was to pay to her. But it being the intention of the said Mary that the principal of the note should not he exacted of him after her death, she made a will on the same day of the execution of the deed, hy which she bequeathed him the amount of the note, or in other words released him the debt.”—Note in Original Edition.

STANARD, J.,

delivered the following as the resolution of the court:

The court is of opinion that the case made by the bill was not one for the equitable jurisdiction of any court; and if it were, that jurisdiction could not have been properly exercised by the circuit court of Nelson. On this ground, without deciding or even considering any other question in the case, the court is of opinion that the decree is erroneous: therefore it is decreed and ordered that the same be reversed and annulled, and that the appellee do pay to the appellants their costs by them expended in the prosecution of their appeal. And this court proceeding to pronounce such decree as *the said circuit court ought to have pronounced, it is further decreed and ordered that the bill of the appellee be dismissed, and that he pay unto the appellants their costs by them about their defence in the said circuit court expended.