Livingston v. Gibbons

5 Johns. Ch. 250 | New York Court of Chancery | 1821

The Chancellor.

The injunction which was granted in this cause, on the 3d of May, 1819, was voluntarily dissolved, on the motion of the plaintiff’s solicitor, on the 20th of July, 1820. The plaintiff now states in his petition, that the order for dissolving the injunction was procured by his son, “ without his knowledge, privity, or assentand that it was contrary to his wishes. Admitting this to have been the fact, yet we find that the plaintiff, very shortly thereafter, acted upon that order, and gave it his undoubted ratification. It appears that his boat, the Olive Branch, had been restrained by process of injunction from the Court of Chancery of NewJersey, from navigating the waters of that state, and that the boat had been subsequently attached, and process of attachment had been served upon the son of the plaintiff, and on the master of the Olive Branch, and also on other persons acting under the plaintiff, for breach of that injunction. The order of the 20th of July, was entered for the purpose of being relieved from that restraint and these attachments ; and we accordingly find, that on the 25th of July, 1820, the solicitor of the plaintiff gave notice of a motion to be made before the Court of Chancery in New-Jersey, for the dissolution of the injunction in New Jersey, and for the discharge of the attachments. The motion was made and argued on the 4th of August, 1820, and it was founded on a petition of the present plaintiff, shown to have been subscribed by him, and in which he stated, that “ having removed the injunction against Thomas Gibbons, as per certified copy of an order of the Court of Chancery of the state of New-York, annexed, referred to in the bill of complaint of said Thomas Gibbons, and which is the foundation of his proceedings,” he thereupon, prayed that the attachments blight be discharged, and the injunction dissolved.

Here was a full and formal recognition of the act of his son, and of his solicitor, in procuring the injunction issued from this Court to be dissolved. Omnis ratihabitio retrotrahitur et mandato wquiparatúr. It is a little extraordinary, that if the order for dissolving the injunction was procured without his knowledge, and contrary to his wishes, that the plaintiff should a few days thereafter, in his petition to the Chancellor of New-Jersey, speak of “ having removed” the injunction by the order referred to. He treated it, in that petition, as an act of his own, or flowing from his authority.

The plaintiff was successful in his petition, and the voluntary dissolution of his injunction here, procured the dissolution of the defendant’s injunction in New-Jersey. The dissolution here was without the knowledge or co-operation of the defendant, who even resisted the motion of the plaintiff in the New-Jersey Chancery. This act of dissolution- of the injunction was made the ground of the decretal order in New-Jersey, for dissolving the injunction and discharging the attachments there; and it would seem to be contrary to equity and good faith, for the plaintiff, after having obtained a valuable consideration for the dissolution of his injunction, to procure it to be restored. He ought, at least, to consent to place the defendant G. in statu quo, and to restore him to all the legal privileges and advantages which he possessed, when the plaintiff applied to have them withdrawn, by reason of the very act which he now seeks to avoid. But I cannot impose, (and if I did, it would be ineffectual,) as a condition to the granting of the present motion, that the defendant be reinstated in all his rights and privileges in the other state. To do this, the security or bail which was given on the attachment of the Olive Branch, and on the attachment of the several persons who were charged with breaches of the New-Jersey injunction, ought to be replaced, and the Chancery suit revived. I presume all this cannot be done, and that the circumstances of the case are so changed, that things cannot be replaced in their former condition, and with their former force and effect. And if it could be done, what right has the plaintiff to ask it ? There was no fraud, imposition, or mistake, in the voluntary act, or in the voluntary ratification of the act, of dissolving the former injunction. Volenti non Jit injuria. It would be unjust in itself, and derogatory to the authority and dignity of the administration of justice, to suffer the process of the Court, imposing great and inconvenient restrictions on the defendant, to be withdrawn, in order to procure, by the operation of that fact, advantages against that very defendant, and against his consent, in his counter suit, and then to be reinstated in its former vigour. I shall certainly not permit the process of this Court to be so used and so abused.

I do not mean to be understood to say, that the plaintiff has lost forever his exclusive privilege under his grant from Livingston and Fulton, as against the defendant. I am not prepared to say to what extent, and for what period, the injunction so withdrawn, is hereafter to be withheld. I mean only to say, that upon this interlocutory motion, and without any new and special reasons, not existing when the injunction was originally granted, or when it was dissolved, I shall not consent, as of course, to renew the injunction. It was granted, in the first instance, upon consideration and argument, as a necessary, but unpalatable measure, flowing from the exclusive grant to L. and F. It has been steadily maintained, for upwards of fourteen months, against the persevering efforts of the defendant G., to elude or question its authority. This very process, of which we are speaking, led to grave and momentous consequences. It produced, as an act of retaliation, the law of New-Jersey, of the 25th of February, 1820, referred to in the plaintiff’s petition; and it produced the bill, injunction, and attachments under that law, against which the plaintiff sought to be relieved, by the voluntary sacrifice of his injunction in this Court. He has made the sacrifice, and has obtained what he deemed the equivalent, and he must, in the present state of the case, be content to abide by his election. This Court gave him full and absolute protection, under the monopoly, and it would have continued that protection, uninfluenced by any thing that had been done in New-Jersey, if the plaintiff had not thought proper, of his own accord, to renounce it. Possibly, the plaintiff may have acted injudiciously in the choice of his means to obtain relief in New-Jersey. A wiser course may have been, to have left his own injunction undisturbed, and to have questioned and litigated, from Court to Court, (if necessary,) the validity of the statute of New-Jersey, and the proceedings under it, until he had obtained a final decision on the constitutionality of that law of reprisals, in the Supreme Court of the United States. But if he has committed an error in judgment, neither this Court, nor the defendant are responsible, in any degree, for that error; and I think that good faith requires that he should not now lightly attempt, nor lightly be permitted to retrace his steps.

The motion was denied, with costs to the defendant for resisting it, and the following order entered :

“ It appearing that the said order of the 20th of July last was entered upon the motion of the plaintifi’s solicitor, and was on a petition made and subscribed by the plaintiff to the Chancellor of the State of New-Jersey, on the 4th of August last, mentioned and recognized as his own act, and made the ground of an application for relief against an injunction issued by the Court of Chancery of New-Jersey, in favour of the defendant against the plaintiff, and for relief against several attachments issued for breaches of that injunction. And it further appearing, that the act of dissolution of the injunction in this Court, was the efficient cause of the dissolution of the injunction, and of the discharge of the attachments in New-Jersey, upon such application, and that the plaintiff thereby obtained, what he deemed to be an equivalent for the voluntary discharge of his injunction from this Court, justice and good faith not permitting the injunction here to be renewed under the present circumstances of the case : It is thereupon ordered, that the said motion be denied, with costs to be taxed, and to be paid by the plaintiff to the defendant, for resisting the motion,”