ROEBLING SONS' CO.". FIRST }fAT.
OF RICHMOND, VA.,
(District Court, D. West V'iJrgt'nia.
January Term, 1887.)
1.' INJUNCTION-TRESPASS Br CORPORATION-IRREPARABLE
" . A court of equity will not interpose by injunction to prevent a corporation, t,hat ill guilty of a trespalls, from a repetition of the same; it must be shown that there are sundry persons controverting the same right, each standing on his Own ground; and that their acts work irreparable mischief. To entitle a party to relief by injunction against the illegal or fraudulent proceedings of corporate officers, the ryarty seeking relief must be a stockholder of the corporation. A national bank that has loaned IDQney on timberland may, to protect it-
SAlliE-PLAINTIFF NOT STOCKHOLDER.
BANKS AND BANKING-NATIONAL· BANK-POWER TO CUT TIlIIBER TO COLLECT .DEBT SF.lCURED ON LAND.
.sell the timber.
Self and collect the debt, purchase the land at foreclosure sale. and cut and
. Mr. Quarrier, for complainant. BroW'1/, & Ferguson; for defendants.
JACKSON, J. ':l'he complainapt files its bill against the defendants, and prays for· aI;l injunction upon two grounds: .F1,rst, that the defendll,nts are trespassers upon complainant's property, committing daily acts of trespass, whereby these acts become a continuous ,trespass; second, that one of the. defendants is a national. bank, organized under the national banl3:ing law!;!" which restrain apd inhibit it froIP any other busLness than a legitimate banking business. . ... As to the first ground; the case made by the bill shows that the New River Coke Company, a corporation doing business in Fayette county, West Virginia, is the owner of a tract of land in fee, on Newriver; and that it "made, executed, and delivered" to the complainant a lease for a portion of the tract "bounded between the Chesapeake & Ohio R3ilroad on the one side, and the center of New river on the other side;" that, notwithstanding the fact that sl;tid company is seized in fee of this tract of land, the defendants are erecting a wire tramway across these landi:l without its consent, for the purpose of transporting timber over such tramway; that such acts upon the part of the defendants are trespasses; and that the repetition of them daily, is in law a continuous trespass, and that for this reason the defendants should be restrained from building and using the tramway over the lands of complainant. The defendants appear and oppose the granting of the injunction, and file their answer, to be used as an affidavit upon this motion, denying that the complainant has legal right to the possession of the land, and in it, setting up other reasons, supported by affidavits of other persons, why the injunction should be refused. Under the view we take of the question raised, it is only necessary at this time to consider the case made by the bill. It must be conceded that the case made by the bill, presents the question whether a
ROEBLING V. FIRST NAT.BANX.
court of equity will use its power to restrain a in committing acts, which in law amount to nothing more than pure naked trespasses, where there is no allegation in the bill charging irreparable injury, and that there is no adequate remedy at law. It is a fundamental principle that equity will not interfere to stop the commission of trespass when adequate relief can be had at law by compensation in damages. To this general doctrine there are undoubtedly some exceptions, one of which is, that equity will interfere where the acts of a wrong-doer are of daily occurrence, and are in law, a continuous trespass, such as would provoke a multiplicity of suits to compensate the injured party by ages against the trespasser. Conceding this to be the law, is this case, as made upon the bill, within the exception stated? We think not. High, who. is justly held by the profession as standard authority as a. tex,t writer, says that the necessity ofpreveI}ting.a multiplicity of suits ·afl'ords an exception that will warrant the interference of the strong arm :ofequity, even though there be a remedy at law. .But he further says th.a.t to warrant interferencein such case there must be different persons assaning the same right,ahd the principle upon the relief is granted bas no application to a repetition of the same trespass by one and the same .person, the last being susceptible of compensation in ages. For this position the .lluthor cites some two or'three adjudications, to one of which .we have access, which fully· sustains this view of the la.w. Hakher v. Hamplhn, 7 Ga. 50. In that case the court. announces that a court of equity "will'interfere by injunetiouto avoid a multiplicity of suits when there are su.ndry persons controverting the same right, and each standing upon his own pretensions, but it will not interfere to restrain a person. merely because he is guilty of a repetition of the same trespass, provided the case is abundantly susceptible of compensation in damages." We think the law as here stated should govern the case under consideration. It is true, in this case there are two. defendants, but it is equally true that the defendant bank claims under the defendant Donaldson, and in this respect the pretensions of both are the same, arid each one is not standing upon his own or different positions, but they are resting their defense upon a common ground j the defendant aldson is in nowise a principal in interest in the controversy, but merely the agent of the defendant corporation. It thus appears that there is but one defendant in interest, and, as we understand the law, a court of equity will not in such case interpose by injunction to prevent a person who is guilty of trespass from a repetition of the same. In the case referred to in 7 Ga. 50, the judge who spoke for the court said: "It has never been supposed that because one person chooses daily to pull down the fence of another, and turn his stock into his fields, that this would authorize the courts of chancery to restrain the intruder by injunction." Applying the rule of law as stated, this case does not come within the exception. There is in reality but one defendant in this case, and, although there is an allegation in the bill that there is a daily repetition of the acts of trespass, yet, as we have seen, to give a court of equity jurisdiction to restrain the. commission of a repeated trespass, there must be anallega-
tion charging that there are sundry persons controverting the same right, and ea,ch party standing on his own ground. As we have before remarked, this is a purely naked trespass unaccompanied by any peculiar circumstances, the mere commission of which does not work irreparable mischief, and therefore furnishes no ground for an injunction. High, Inj. (2d Ed.) §§ 700,701; Hatcher v. Hamptnn, B'l1.praj Schurmeier v. Railroad Co., 8 Minn. 113, (Gil. 88.) The second ground of complaint stated in the bill is that the acts of the defendaJ;lt corporation are ultra mre8,-not only unauthorized by its charter, butinhibited by the national banking act under which it is organized. It appears that the bank had loaned to the defendant Donaldson a large sum of money to engage in the lumber business in West Virginia; that subsequently he became embarrassed, and the bank, with a view of saving its debt, secured a deed of trust upon all of his property, which deed was. foreclosed; and the bank purchased the property, and was compelled by its agent to conduct the businells with a view of reimbursing itself out of the proceeds of the business, the money it had loaned. It may be conceded that there is no expreSs power in the charter of this c()rporation that would authorize it to conduct a business outside of its legitimate business as a banking institution; but there is connected with all corporations certain implied powers, which are incident to the express powers, and without which no corpo;rationcan successfully transact business. In this instance we see but an effort upon the part of the bank and collect a debt due it. .No one will question the right of a to lend its money in the manner authorized by its charter; as a consequence it must have the power to e<;>llect it, and, as incident to the exercise of such power, the right to secure and save the debt. We think this view is well sustained by authority·. Fir8t Nat. Bank v. National Exchange Bank, 92 U. S. 122; 1 Wood. Ry. Law, § 169. But if this were not the law, still we do not think the plaintiff entitled to an injunction on this ground. The law is well settled that, to entitle a party to relief by ,injunction against the illegal or fraudulent proceedings of corporate officers, the party seeking' relief must be a stockholder 'of the corporation. 2 High, Inj. (2d Ed.) § 1228. In this case the plaintiff is in nowise connected with the corporation, and fOf this reason we must refuse the relief prayed fOf. Injunction refused.
WALLIS'll. SHELLY. WALLIS, Receiver,
SHELLY and another.
(Circuit Oourt, 8. D. New York. April 15, 1887.)
The fees and poundage allowed by statute to a sheriff for levying and collecting an execution are the only charges to which he can lawfully subject the property of an execution debtor, and a sheriff has no right to employ an auctioneer to sell property seized under an execution, in the absence of authority from the owner in that behalf. In an action against an agent for money had and received, when the plaintiff does not make title through a contract with the but has a title to the money in his hands paramount to that of the prinCipal, the agent who has received the money is personally liable, unless he has paid it over to his principal before notice.
PmNCIPAL AND AGENT-LIABILITY OF AGENT.
If a portion of the proceeds of an execution sale, to which the execution debtor is entitled, is illegally withheld by' an auctioneer who conducted the sale, and by an agent of the sheriff, a bill in equity will lie to recover the money, although there is a remedy at law by action for money had and received, when the facts are such as to entitle the plaintiff to come into equity for a discovery.
SAllE-REMEDY AT LAW.
Where the peculiar circumstanc.es of a case entitle the complainant to enforce his claim against one party in a court of equity,he cannot be compelled another party, though Buch step be open to to seek a remedy at law hhll., in preference to relief in equity.
Wm. G. Wilson, for complainant. L. W. Enwrson, for defendants.
WALLACE, J. The defendants Shelly and Topping hold in their hands the sum of $2,330.65, the proceeds of certain personal property of the corporation of which the complainant is receiver. Actions have been brought in the supreme court of this state by several creditors of the corporation, and executions were issued upon the judgments obtained therein, and were duly delivered to the sheriff of the city and county of New York to be satisfied by a levy and sale of the property of the corporation. The sheriff, by his deputy, employed the defendant Topping, Rl:l an auctioneer, to make sale of the property upon the executions. Topping made the sale, and turned over the proceeds, less his commissions, to the defendant Shelly, the sheriff having in the mean time left the country, arid given to Shelly a power of attorney to act for him in all matters respecting his official business. The commissions charged by Topping amounted to $1,065.45. The proceeds paid over by Topping to Shelly amount to $1,478.54, after payment of the executions in full, with the sheriff's fees and poundage. The sheriff had no right to employ an auctioneer at the expense of the owner of the property seized on the executions, in the absence of authority from the owner in that behalf. The fees and poundage allowed by statute to a sheriff for levying and collecting an execution are the only charges to which he can lawfully subject the property of an execution