23 N.H. 462 | Superior Court of New Hampshire | 1851
The application now before, us is made by virtue of the provision contained in § 7, ch. 171, Rev. Stat., which authorizes the court to “ grant writs of injunction whenever the same shall be necessary to prevent injustice.” Questions analogous to that now presented have often been investigated, both in England and in this country, and the principles recognized by the decisions, go far enough to authorize the court to grant the relief now prayed for. The court are not asked to assume any jurisdiction, or exercise any control over the land in Maine, or to interfere with the laws of that State. Nothing more is asked than that the respondent, a citizen of New-Hamp
In the case of Penn v. Lord Baltimore, 1 Ves., 444, Lord Sardwiche recognized and acted upon the principle, that equity, as it acts primarily in personam, and not merely in rem, m.ay make a decree, where the person against whom relief is sought, is within the jurisdiction upon the ground of a contract, or any equity subsisting between the parties respecting property situated out of the jurisdiction. A decree was made for the specific performance of a contract relating to the boundary between the colonies of Pennsylvania, and Maryland. In the course of his judgment, Lord Sardwiche says: “ this court, therefore, has no original jurisdiction on the direct question of the original right of the boundaries, and their bill does not stand in need of that. It is founded on articles executed in England, under seal, for mutual considerations, which gives jurisdiction to the king’s courts, both inlaw and in equity, whatever be the subject matter.” He subsequently says : “ the conscience of the party was bound by this agreement, and being within the jurisdiction of this court, which acts in personam, the court may properly decree it as an agreement.”
This case decides, that although the subject matter of a contract be land out- of the jurisdiction, the boundary of the land may be settled by a decree for a specific performance of the contract. In this way a party within the jurisdiction may be compelled to do an act of justice, in relation to land out of the jurisdiction. The case is a leading one, and its principle has been extensively followed. This doctrine, however, was not first suggested by Lord Sardwiche. Before his time, it was well' established in the court of chancery, although it had not received so elaborate an exposition in any preceding case, as in the decision referred to. In the case of Arglasse v. Muschamp, 1 Vernon, 75, the bill prayed for relief against an annuity charged upon the orator’s lands in Ireland, on the ground of fraud. The re
The principle that a court in chancery, will exercise such a power as the orators ask should now be enforced, whenever the case is one of equitable cognizance, and the parties are within the jurisdiction, although the property may be beyond it, is as fully recognized by the courts in this country, as in England. In Massie v. Watts, 6 Cranch, 148, the question was whether the defendant, being within the jurisdiction of the circuit court, in Kentucky, could be decreed to convey lands in Ohio, and the defence was that the land lay beyond the jurisdiction of the court. Marshall, C. J., said, “ where the defendant is liable, either in consequence of contract, or as trustee, or as the holder of a legal title acquired by any species of mala fides practised upon the plaintiff, the principles of equity give a court jurisdiction, wherever the person may be found, and the circumstance that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction.”
It is said by Chancellor Walworth, in the case of Mitchell v. Bunch, 2 Paige, 606, that the original and primary jurisdiction of this court, was in personam merely. The writ of assistance to deliver possession, and even the sequestration to compel the performance of a decree, are. comparatively of modem origin. The jurisdiction of the court was exercised for several centuries, by the simple proceeding of attachment against the bodies of the parties, to compel obedience to its orders and decrees. Although
The parties in the cause,^in which these views were expressed, were foreigners, temporarily in this country. The bill stated, that the defendant had sufficient property at Carthagena or elsewhere, to satisfy a judgment which the complainant had recovered against him, and that the defendant was about to leave the State for Carthagena. The bill prayed for satisfaction of the judgment out of the property of the defendant.
Upon another application of the same principle, the chancellor held, that where the court had jurisdiction of the person, it might by the ordinary process of injunction and attachment for contempt, compel a defendant to desist from commencing a suit at law, either in that or any foreign jurisdiction. Mead v. Merritt, 2 Paige, 402. So where the person was within the jurisdiction, it was held, that the court might compel a party to execute a trust of lands in Illinois, valid by the laws of that State, or to convey the legal title according to the decree, so long as it had the power to execute its decision through the medium of the holders of the legal title. Hawley v. James, 7 Paige, 213.
In the case of Sutphen v. Fowler, 9 Paige, 280, the bill was filed for the specific performance of a contract for the sale of lands in Michigan, against the infant child of the contracting party, who at the time of his death* was entitled to a conveyance of the legal title to the premises, which was subsequently made to the defendant. It was held, that the court had jurisdiction to decree the' specific performance of a contract for the sale of lands in another State, where the person of the defendant was within reach of its process, and might direct a conveyance by
This decision is in point, not only as regards the principle, but also in relation to its application to a state of facts similar to those in the case now before us. Nothing more is asked by the orators here, than that the defendant should be restrained from injuring or interfering with the property of the orators situated in Maine, and the above case of Sutphen v. Fowler is an express adjudication that he may be so enjoined. The principle is also recognized and stated, by the most eminent elementary writers. Jeremy’s Eq. Jur., 557 ; Story’s Eq. Jur., § § 748, 744, 899, 900.
It would be a great defect in the administration of the law, if the mere fact, that the property was out of the State could deprive the court of the power to act. As much injustice may be perpetrated in a given case, against the citizens of this State, by going out of the jurisdiction and committing a wrong, as by staying here and doing it. The injustice does not lose its quality by being committed elsewhere than in New-Hampshire, and as the legislature has conferred upon the court the power to issue injunctions whenever it is necessary to prevent injustice, it is the duty of the court to exercise that power upon the presentation of a proper case, and when it can be done consistently with the acknowledged practice in courts of equity. As the principle which is sought to be applied here, has been recognized for nearly two hundred years, we have no hesitation in holding, that the court has jurisdiction to issue the injunction prayed for.