Edmonds, Justice.
In these two suits there are different questions raised and discussed’on the argument.
1. On the demurrer to the complaint -in the first suit, on the ground of a misjoinder of actions.
2. A motion for leave on the part of Furniss to file a supplemental complaint to set forth the acts which occurred after his suit was brought.
3. A motion for attachment against Brown for violating the injunction.
4. A motion to set aside that injunction and other proceedings in the first suit, which aim at the immediate possession of the party.
5. A motion to compel Furniss to elect in what manner, and Under what provision of the Code he will proceed.
6. A motion for an injunction against Furniss.
The five first named questions arise in the suit in which Fur-hiss is plaintiff,’ and the remaining one in the other suit.
[62]*62The first question which I will consider will be that which arises in the demurrer, as it may more or less affect the other questions.
It is claimed for the defendant that the complaint demurred to has a three-fold character; as a bill for specific performance of a personal contract, as an action of replevin, and as an action for the recovery of damages for a breach of a contract. And it is alleged in his behalf that these actions are inconsistent with each other; for the first is founded on the idea that there has been no absolute sale of the vessel to Furniss; the second is founded on the idea that there has been such absolute sale, and the third is left at liberty to rest its foundation upon either alternative.
I do not think that the complaint can, with propriety, be regarded as in the nature of a bill for a specific performance, for it does not allege a contract to sell, and ask that it may be performed by a decree that the defendant sell, but it avers an absolute sale, and claims a right to possession by virtue of such contract of sale.
It is therefore an action of replevin, seeking, as in that action always might be sought, the immediate possession of the chattel sold, and that not so much by the final judgment as is the case in all actions for specific performance, as by mesne process, as has: ever been usual in the action of replevin.'
But it has this addition, that it is also an action on contract, seeking damages for a violation of contract. So that in respect to its seeking the immediate possession of the vessel, it is an action ex delicto, and as to the damages it is an action ex contractu.
Now, the Code allows several causes of action to be joined, where they all arise out of contract express or implied, or out of claims to recover personal property with or without damages for withholding; but it declares that the causes of action so; united must all belong to only one of these classes (Code, § 167).
This mere statement of- the law and of the causes of actions which are found united in this complaint, shows that the demurrer is well taken.
But it does not follow' that, therefore, the injunction must be dissolved. That depends on other considerations. The plaintiff [63]*63may be allowed to amend his complaint without prejudice to the’ injunction, and if he should amend so as to reduce his complaint merely to the action of replevin (as it may yet be called, though the Code has given it a new and less convenient name), the question recurs whether ah injunction could be sued out in aid of his remedy. Formerly in that action it could not, but now it may in every action where it shall appear by the complaint, that the plaintiff is entitled to the relief demanded, and such relief, or any part of it, consists in restraining the commission of some act, the commission of which during litigation would produce injury to the plaintiff KCode, §219). So that the inquiry is not, whether the relief demanded is according to principles, of equity or the common law practice, but simply whether the party is entitled to it by reason of its producing an injury to him.
The relief here sought in this respect is that the defendant may not remove the vessel from the jurisdiction of this court and the plaintiff shows himself entitled to it by averring an absolute sale to him of one-half of the vessel, and an agreement that when, finished, he shall have possession of the whole. So that if he. is correct in his statement of his title, he had aright to the injunction in the first instance and to its continuance pending the suit, on properly amending his complaint.
This involves the question whether the contract was an absolute-sale in presentí, or merely a contract to sell at a future time. -
I entertain no doubt that it was an absolute sale in presentí, and was so understood by both parties up to the 9th of February, when the vessel left this port.
The contract says that Brown not only agrees to sell, but “ by these presents does sell.”
Each party was to insure his own interest, and Furniss, from the execution of the contract, might have insured his half.
The amount paid was applied by'both parties towards the purchase of both boats; the receipt for the $25,000 says so in express terms, and the $5,000 could in no respect be applicable to the purchase of the Rhode Island, unless it was so; so that if the $25,000 were paid only for the Rhode Island, the $5,000 must have been paid toward the New World; and if the $5,000 were paid on the Rhode Island, some part of the $25,000 must [64]*64have been paid toward the New World; so that in any event, Brown received some part of the purchase money of the New World.
The coal bought by Furniss was, by Brown, applied to the use of the New World, as well as to that of the Rhode Island, he thus treating one boat as sold to Furniss as much as the other.
■ In both contracts the expression is in the present tense, “ he sells.” In the case of the Rhode Island, Brown caused her to be registered in both names, thus recognizing Furniss as part owner by virtue of that expression; and in the case of the New
World, he frequently promised to send the carpenter’s certificate so that she might be registered in the same manner.
In all of Brown’s letters he recognizes Furniss’s joint ownership. Furniss avers that the purchase of both boats was one' transaction, and Brown no where controverts that averment, and for all the purposes of this suit it must be taken as true.
It is these considerations which have brought my'mind to the conclusion that it was an absolute sale in presentí, so intended by both parties, and so understood by both, until this suit was brought.
■ If this wras so, then Furniss had an absolute right,, by virtue of his present ownership, to the immediate possession of one-half df the vessel, and might maintain replevin for it against a wrong doer, and was entitled to an injunction against her being removed out of the jurisdiction of the court. I have thus far been regarding his rights only as owner of one-halfxof the vessel, and not under his contract to have possession of the whole. And as such owner, there is another ground why he should have his injunction.
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Edmonds, Justice.
In these two suits there are different questions raised and discussed’on the argument.
1. On the demurrer to the complaint -in the first suit, on the ground of a misjoinder of actions.
2. A motion for leave on the part of Furniss to file a supplemental complaint to set forth the acts which occurred after his suit was brought.
3. A motion for attachment against Brown for violating the injunction.
4. A motion to set aside that injunction and other proceedings in the first suit, which aim at the immediate possession of the party.
5. A motion to compel Furniss to elect in what manner, and Under what provision of the Code he will proceed.
6. A motion for an injunction against Furniss.
The five first named questions arise in the suit in which Fur-hiss is plaintiff,’ and the remaining one in the other suit.
[62]*62The first question which I will consider will be that which arises in the demurrer, as it may more or less affect the other questions.
It is claimed for the defendant that the complaint demurred to has a three-fold character; as a bill for specific performance of a personal contract, as an action of replevin, and as an action for the recovery of damages for a breach of a contract. And it is alleged in his behalf that these actions are inconsistent with each other; for the first is founded on the idea that there has been no absolute sale of the vessel to Furniss; the second is founded on the idea that there has been such absolute sale, and the third is left at liberty to rest its foundation upon either alternative.
I do not think that the complaint can, with propriety, be regarded as in the nature of a bill for a specific performance, for it does not allege a contract to sell, and ask that it may be performed by a decree that the defendant sell, but it avers an absolute sale, and claims a right to possession by virtue of such contract of sale.
It is therefore an action of replevin, seeking, as in that action always might be sought, the immediate possession of the chattel sold, and that not so much by the final judgment as is the case in all actions for specific performance, as by mesne process, as has: ever been usual in the action of replevin.'
But it has this addition, that it is also an action on contract, seeking damages for a violation of contract. So that in respect to its seeking the immediate possession of the vessel, it is an action ex delicto, and as to the damages it is an action ex contractu.
Now, the Code allows several causes of action to be joined, where they all arise out of contract express or implied, or out of claims to recover personal property with or without damages for withholding; but it declares that the causes of action so; united must all belong to only one of these classes (Code, § 167).
This mere statement of- the law and of the causes of actions which are found united in this complaint, shows that the demurrer is well taken.
But it does not follow' that, therefore, the injunction must be dissolved. That depends on other considerations. The plaintiff [63]*63may be allowed to amend his complaint without prejudice to the’ injunction, and if he should amend so as to reduce his complaint merely to the action of replevin (as it may yet be called, though the Code has given it a new and less convenient name), the question recurs whether ah injunction could be sued out in aid of his remedy. Formerly in that action it could not, but now it may in every action where it shall appear by the complaint, that the plaintiff is entitled to the relief demanded, and such relief, or any part of it, consists in restraining the commission of some act, the commission of which during litigation would produce injury to the plaintiff KCode, §219). So that the inquiry is not, whether the relief demanded is according to principles, of equity or the common law practice, but simply whether the party is entitled to it by reason of its producing an injury to him.
The relief here sought in this respect is that the defendant may not remove the vessel from the jurisdiction of this court and the plaintiff shows himself entitled to it by averring an absolute sale to him of one-half of the vessel, and an agreement that when, finished, he shall have possession of the whole. So that if he. is correct in his statement of his title, he had aright to the injunction in the first instance and to its continuance pending the suit, on properly amending his complaint.
This involves the question whether the contract was an absolute-sale in presentí, or merely a contract to sell at a future time. -
I entertain no doubt that it was an absolute sale in presentí, and was so understood by both parties up to the 9th of February, when the vessel left this port.
The contract says that Brown not only agrees to sell, but “ by these presents does sell.”
Each party was to insure his own interest, and Furniss, from the execution of the contract, might have insured his half.
The amount paid was applied by'both parties towards the purchase of both boats; the receipt for the $25,000 says so in express terms, and the $5,000 could in no respect be applicable to the purchase of the Rhode Island, unless it was so; so that if the $25,000 were paid only for the Rhode Island, the $5,000 must have been paid toward the New World; and if the $5,000 were paid on the Rhode Island, some part of the $25,000 must [64]*64have been paid toward the New World; so that in any event, Brown received some part of the purchase money of the New World.
The coal bought by Furniss was, by Brown, applied to the use of the New World, as well as to that of the Rhode Island, he thus treating one boat as sold to Furniss as much as the other.
■ In both contracts the expression is in the present tense, “ he sells.” In the case of the Rhode Island, Brown caused her to be registered in both names, thus recognizing Furniss as part owner by virtue of that expression; and in the case of the New
World, he frequently promised to send the carpenter’s certificate so that she might be registered in the same manner.
In all of Brown’s letters he recognizes Furniss’s joint ownership. Furniss avers that the purchase of both boats was one' transaction, and Brown no where controverts that averment, and for all the purposes of this suit it must be taken as true.
It is these considerations which have brought my'mind to the conclusion that it was an absolute sale in presentí, so intended by both parties, and so understood by both, until this suit was brought.
■ If this wras so, then Furniss had an absolute right,, by virtue of his present ownership, to the immediate possession of one-half df the vessel, and might maintain replevin for it against a wrong doer, and was entitled to an injunction against her being removed out of the jurisdiction of the court. I have thus far been regarding his rights only as owner of one-halfxof the vessel, and not under his contract to have possession of the whole. And as such owner, there is another ground why he should have his injunction. In cases of disputes between joint owners of a vessel, we adopt and apply in this court the rule of Admiralty, and that is to give the majority in interest the possession and control, where there is such majority, and where there is not, order the vessel sold and in the mean time restrain both parties from using her.
This rule is a sound one, and indeed the only one that can, with propriety, be applied in such cases; applied here, it would clearly warrant an injunction.
This disposes of all the questions in the first suit, except the motion for an attachment against Brown.
[65]*65I can not on the papers before me, determine how far he took any part in sending the vessel to sea. No act of his tending to such result, is set out in the affidavit on the part of Furniss, though from the acts which are detailed, the inference is certainly very strong that he had something to do with it. But on the other hand, the affidavit of Bell would imply that Brown had nothing to do with sending her to sea. This is'not very probable, to be sure, but in the state of the evidence before me, I can not say how the fact is, and must direct a reference to ascertain.
The motion by Brown for the injunction must, of course, under the view of the case, be denied with costs.
Furniss agt. Brown.
DECISION.
1. Demurrer to complaint allowed, but plaintiff allowed to amend by electing whether his complaint shall be as in replevin or as in an action for damages, for breach of contract, such amendment to be made in five days.
If plaintiff omit to amend, or if in amending he elects to go for the damages and not in replevin, the injunction will be dissolved. But if he amends, and in amending elects to go as in replevin, the motion for the dissolution of the injunction will be denied. But in any event the plaintiff will pay the costs of the motion to dissolve the injunction, $10, and the costs of the demurrer.
2. Motion for leave to file supplemental bill, granted.
3. The motion for attachment for violating injunction referred to Joseph S. Bosworth, to take testimony in regard to it
4. The motion to set aside proceedings in the replevin to elect, &e. will be governed by the decision on the demurrer and the action thereo „
Brown agt. Furniss.
Motion for an injunction denied, and temporary injunction dissolved with costs.
Note.—This case was received by the Reporter for publication on the 17th June 1852, and should soon thereafter have been published; but by some accident it was mislaid with some other papers, and not found until a few days since.