#### THE JUSTICES OF PITT COUNTY *against*DABNEY COSBY.

'Whore it was alleged that one, without authority, and against the wishes of the justices, in whom the title was vested, seized on a public square, and was ' proceeding to build a house for a court-house, which would imperfectly answer the purpose, and that this trespass would produce an injury which would be *irreparable, or only to be repaired after great delay of time, and at great expense,*it was *Held*not to be a proper case for the Court to interfere by injunction to restrain the progress of the building.

'Observations by Battle, J., on the form of an affidavit to a bill made by an agent.

Appeal from an interluctory order of the Court of Equity ■of Pitt county, dissolving an injunction, Judge Siiepiiebd, presiding.

The court-house of Pitt county having been destroyed by fire, the justices of the peace of the county, at ———-Term, 1858, of their county court, appointed a committee with authority to adopt a plan for a new court-house, and to contract *255with some person for building one. This committee procured a plan- to be drawn with specifications, and the plaintiffs allege that defendant undertook and bound himself to execute the .work according to said contract and specifications. The bill alleges that the defendant proposed certain modifications and alterations in the plan proposed, and they so far entertained these suggestions as to enter a memorandum thereof on the original plan, and these alterations were provisionally agreed to, but that about six months afterwards, on seeing a draft of the building as proposed to be modified, they rejected the modifications proposed, and notified the defendant that unless he gave bond and security to execute the work according to the original plan and specifications, within three weeks, “ he would be considered as having forfeited all claims to the contract; and whatever contract, if any had been entered into between the parties, would be deemed to be rescinded.”— The bill alleges that the defendant paid no attention whatever to this notice, but took possession of a piece of ground in the town of Greenville, belonging to the plaintiffs, (a- public square) and without consultation with the committee, and without ever having any place designated as the site of the new court-house, proceeded with a number of workmen to the erection of a large brick building, notwithstanding the committee, at the beginning of such erection, and repeatedly since have requested him to desist. They allege that the building is not being done according to the contract, is of inferior materials, and will imperfectly answer the purposes of a courthouse, and “as a specimen of architecture, will be unworthy of the county of Pitt, and if permitted to remain will encumber the public square.” They allege that “ this trespass by the defendant is greatly detrimental to the public interest, and works an injury which is irreparable, or which can only be repaired after great delay of time, and at great expense.”

The bill prays for an injunction to restrain the defendant from proceeding with the building.

The affidavit annexed, is as follows:

*256
      *“*G. *11.*Singletary inaketh oath that lie believes the facts set forth in the foregoing bill, are just and true.”

On the coining of the defendant’s answer, and on motion, the injunction, (which bad issued in vacation) was ordered to be dissolved, from which the plaintiffs appealed.

*Hodman,*for the plaintiffs.

*McRae*and *Donnell,*for the defendant.

Battlk, J.

There are one or two grounds- upon which the order, made in the Court below, to dissovo the injunction, can be so clearly sustained, that it is unnecessary to notice any other. The advocates for the injunction must base their claim to it, upon the assumption, either that the building, which the defendant is erecting, is a nuisance, or that it is a trespass, which will create an irreparable injury. If it be a nuisance, it must, of course, be a public one, and in that case, the proceeding against it ought to be an information in the name of Ihe Attorney General, or a bill, to which he is made-a party. Drewry on Injunctions, 240, (36 Law Lib. 165,) 2 Stor. Eq. section 922, *et seq.*

If it be regarded as a trespass, then, wo cannot see how the injury can be deemed irreparable. The plaintiffs can very easily have the building taken down, and there is no intimation in the bill, that the defendant will not be able to pay any damages, which a jury may assess, in an action at law. The plaintiffs could, undoubtedly, have brought an action of trespass *quare elausum fregit*the moment the defendant commenced digging up the soil for the purpose of laying the foundation of the building, and he could not have- justified, unless ho could show that he entered under a contract with the building committee, and, of course, with their license. Here, then, was a plain remedy, which the plaintiffs had by an action of tresspass at law, and it was also an adequate remedy, unless the damage can he shown to be irreparable. It is clear, that it cannot be so deemed, either in a “ technical,” or any other sense. The principle, upon which the in-*257jnnctive process to restrain a trespass can be issued, is said to be this“That although the jurisdiction of Equity does not property extend to cases of trespass, strictly so called, yet, where the trespass is of such a nature as to be actually taking away or destroying the very substancé of the estate as in the case of timber, coals, lead ore, there, the injunction will be granted to restrain such species of trespass.” See Drewry on Injunctions, 181, (36 Law Lib. 133,) citing *Robinson*v. *Lord*Byron, 1 Bro. Ch. Cases, 588; *Harrison*v. Gardner, 1 Ves. Jun’r., 308; *Crockford*v. *Alexander,*15 Ves. 138. The- erection of a house upon the plaintiff’s land, certainly does not fall within this principle. The-bill does not state, distinctly, how far the defendant had progressed with the bu-ilding complained of. If he has just commenced it, then it is manifest that the injury, sustained, can be easily redressed; but if it has been completed, or nearly so, the injury may be greater, provided the plaintiff cannot make any use of the house, but tiie principle will be the same. Our.opinion is, that the plaintiffs have failed entirely to make out such a case of “irreparable injury” as to make it necessary'for them to invoke the restraining process of a court of equity.

The decision of the cause upon its merits, (so far as we are now at liberty to consider the merits), makes it unnecessary to notice, with much particularity, the objection of the defendant to the insufficiency of the affidavit annexed to the bill. We will only say, at present, that we do not approve of it, and we can see no reason why it should have varied from the form usual in such cases. When an oath is made by an agent, for a corppration, it should state “ that lie has read the bill, or heard it read, and knows the contents thereof, and that the same iá true of his own knowledge, except as to the matters which are therein stated on the information or belief of the complainants, and that as to those matters the deponent believes it to be true.” *The Bank of Orleans*v. *Skinner, 9*Paige’s Ch. Rep. 307.

Per Curiam, The order appealed from is affirmed.