Trustees of the Freeholders & Commonalty of Huntington v. Nicoll

3 Johns. 566

• Court: New York Supreme Court
• Decided: February 15, 1808
• Status: Published

Opinion

Van Ness, J.

This is an appeal from two interlocutory orders of the chancellor, the first, enjoining against proceeding at law, in certain suits in trespass, pending in the supreme court ; and the second, authorising the examination of Selah Strong and Richard Udall, the guardians of the respondent, as witnesses.

To decide on the first ground of appeal, it is necessary preliminarily to examine, whether this is an order from which an appeal will lie.

' The statute, regulating the proceedings in this court, .gives the right bf appeal from any order of the court of chancery. That all orders, however, made in the progress of a cause in that court, are the subjects of appeal, is a proposition to which I cannot assent. That there are some orders from which there is no appeal, will, I think, not be denied. If it were practicable, it would be very desirable, by a decision of this court, on some proper occasion, to establish a rule on this subject, whereby the profession might, hereafter, be governed. In the present case, however, this- is not required. The order under consideration was temporary in its terms. It merely suspended the proceedings at law, until after the then approaching circuit, to be held in the county of Suffolk ; after that time,' its operation ceased, and it was no longer a subsisting order. Although it had not expired, at the time the appeal was entered, it is now no longer in existence, and the question is, whether, from such an order, an appeal will lie ?

The power of granting injunctions is eonfided to the discretion of the court of chancery, to be exercised in all cases, when that court shall deem it necessary, for the furtherance of justice. It is a very necessary, and, when exercised with wisdom, a highly beneficial power. In the court of chancery, as in other courts, it frequently happens, that interlocutory orders are made, without the advantage ©r opportunity of nice and critical examination. Temporary injunctions, therefore, are sometimes granted for the purpose of a more deliberate examination of the grounds, üpon which the application is founded. They are also, sometimes, granted in doubtful cases. It will be recol- ■ lected, that an injunction does not affect or conclude the .merits of a cause. It merely stays the proceedings at law, until the merits are finally discussed and determined. In all cases, therefore, where an appeal is brought from an order of this description, this court should be well satisfied, that the order had been made, clearly and palpably contrary to the equity of the case, and the rules and practice of the court.

These considerations have led my mind to the conclusion, that the present appeal ought not to be favoured. The injunction has not operated to the injury of the appellants ; for even admitting that they might have prevailed in the trials, which were enjoined, the amount of their recovery must have been trifling. But if we suppose, for a moment, that the chancellor committed an error in granting this temporary injunction, which has long since expired, what relief can we give the appellants ? We cannot reverse the order, for that no longer exists. There is nothing upon which the judgment of reversal could operate. To pronounce a nugatory and idle judgment, which we have not the power to enforce, is incompatible with the solemnity and dignity of judicial proceedings. It has been said, however, that if there is no appeal from orders of this kind, that the chancellor may always elude an appeal, by modifying his orders, so as to suffer them to expire before a decision on the appeal can take place. This is an argument which this court will not listen to. We are not to presume, that a public officer will corruptly exercise the power with which he is invested for the public good; and much less ought we to found a decision upon odious and disreputable presumptions against the integrity of a judicial officer. A reasonable confidence in public officers, is necessary to the very existence of civil government. I forbear any further remarks on this argument; and regret that it was thought necessary to urge it.

AH the relief that we could afford in this case, then, would be to declare that the chancellor ought not to grant another injunction ; or, in other words, to pronounce a cautiona-' ry or advisory judgment. This would be as illegal and unprecedented, as it might prove unjust. The respondent might disclose new facts to the chancellor upon which it ■ would not only be expedient, but manifestly his duty, to enjoin new trials at law, and upon which, could they be exhibited to this court, in the 'first instance, we would ourselves grant an injunction.

I am, therefore, of opinion, that on this ground the appeal, as to the first order, ought to be dismissed.

On the argument of this cause, the question, whether the respondent had, in his bill, disclosed a case, of which the court of chancery could take cognisance, was fully discussed and it is, perhaps, expected, that this court will give an opinion upon that point. I shaU proceed, therefore, to its examination.

In the first place, however, it is necessary to remark,* that if this court should be of opinion, that the facts stated in the bill, present a proper case for equitable interference, it follows, as a matter of course, that the proceedings at law must be enjoined. The latter is a necessary’ consequence of the former.

Before I consider the law, .relating to this part of the subject, and for the better application of it to the case before us, a very brief statement of some of the facts, is essential.

The respondent claims title to the premises in question, as part of the lands described in an ancient patent, granted to his ancestor; and it is admitted, that if this grant comprehends the premises, that the respondent has a perfect title thereto.

The appellants deny, that this grant comprehends the premises, and insist, th'at the title is vested in the trustees of the freeholders and commonalty of the town of Hun- ■ tiñgton, under certain grants made to them, but which are posterior in date to that under which the respondent claims. The premises in dispute are three islands, which, in the patent to the ancestor of the respondent, are described as situate in the bay or sound that is between Long-Island, and the beach. These islands are uninhabitable, and incapable of being cultivated ; they are, therefore, uninclosed, and produce nothing but a species of wild grass, called sedge, which, for a long time, has been cut at certain seasons of the year, by the inhabitants of the town of Huntington ; and this is the chief, if not the only use which has been, or can be made of them. It is evident, from this statement of facts, that the premises in question, are not in the actual possession of either of the parties ; and that the legal possession is in the party having the right. The principal question, therefore, between the parties is, whether the grant to the ancestor of the respondent comprehends the premises. This is a question of fact.

I will now, as briefly as possible, examine the subject; and I think I shall be able to show, that under all the circumstances, this is a proper case for the interposition of the court of chancery.

Courts of law, in some cases, have not the power of putting an end to vexatious and oppressive litigation. Actions of ejectment, and in cases where the property is situated as these islands are, actions of trespass may be repeated again and again, until the sinews of litigation are exhausted, and until the resources, but not the spirit, of the parties fail. This is, perhaps, a defect in the common law system; which is supplied, in certain cases, by the more enlarged and superintending powers of a court of chancery.

In some cases, a party is permitted to establish his rights in a court of chancery, in the first instance, without having previously done so, by trials at law. In others, it is necessary, first to establish his rights at law, before a court of chancery will interpose. In examining, with some attention, the cases cited on the argument, ánd other authorities, I am satisfied that the present case is within the principle of several of them ; though I admit, that there is no case which, in all its parts, is analogous to the present. But it is enough, if this comes within the reason of those cases, where equity has taken cognisance'of the legal rights of parties, with a view of terminating endless and ruinous litigation. It is time that we should, for the purpose of rendering the administration of justice more perfect and complete, take the lead, instead of waiting for precedents, in order to follow them. Courts of equity in England, have entertained causes, where the remedy at law. is npt clear, certain, or adequate ; or where the remedy was difficult. So they have entertained bills to prevent a multiplicity of suits, by directing the rights of the parties to be ascertained upon issues framed by the court, instead of obliging the plaintiff to sue a number of persons separately, at law, where each suit would only determine the particular right in question, between the plaintiff and defendant, in that suit: Though in such cases, equity will not interpose, when the right is disputed between two persons only, until it has been first tried and decided upon, at law. But how many trials are necessary to be had, before the court of chancery will interfere, must depend upon the sound discretion of the court. This seems to me to be the fair deduction from all the cases on this subject.

In the instances where the court of chancery has taken cognisance of the mere legal rights of the parties, it has not assumed the authority to try and decide such rights. This has been uniformly and properly referred to the courts of law, where all the trials are had, where the titles of the parties are investigated, the proofs exhibited, and the witnesses examined. All the court of chancery does, is to decide how long the litigation at law shall continue. After a sufficient number of issues have been tried, satisfactorily to determine the right, an end is put, by a perpetual injunction, to further contest: And the party, having thus established his right at law, is quieted and protected in the enjoyment of it. I cannot but consider this as among the most beneficial and salutary powers of that court. Courts of law are not equal to this purpose. Their mode of administering justice does not reach the evil ; and it is for this reason, that the court of chancery is called to their aid.

In the case before us, what is the infant to do, in order to be quieted, admitting the right to be with him ? It is said he may bring an ejectment. True, he may do so; but it will be seen, that the moment he resorts to that mode of investigating the right, he admits that he is out of possession. He has once prevailed, in an action of trespass, against a person, who justified under the title of the town of Huntington ; and in that suit, he must have shown himself to have been in possession, or he would have been nonsuited. Is it just, then, to force him to an action, in which he must abandon a very important advantage, which the parly in possession always enjoys ? But suppose he should bring an ejectment, and recover ; will that settle the right, and terminate litigation ? By no means. A recovery in one action of ejectment, is no bar to the bringing of another. The parties may proceed, as often as they please ; and, very frequently, he who can longest bear the expenses of litigation, will, in the end, prevail.

It has also been said, that the respondent may bring a a writ of right. But by resorting to that remedy, he admits that he is disseised. There, as in the action of ejectment, he is obliged to yield an advantage, which ought not to be required of him. If he admits that he is disseised, (which, by bringing a writ of right, he undoubtedly does,) at what time is that disseisin to be deemed to have taken place ? I cannot see why, according to his own admission, it is not to be carried back to the date of the patents to the town of Huntington. If so, he gives up his cause, because the statute of limitations would be a complete bar to his recovery.

But it is said, that the trial of the actions of trespass, may settle the controversy. The answer to this is, that it may not have that effect ; and, after all the suits new pending between the parties, have been tried, the controversy may be as far from being terminated, as it is at this moment. Unless some mode of putting an end to this controversy can be devised, after the right has been determined at law, the infant may as well abandon his claim at once. He is obliged to maintain an unequal contest. The appellants command the resources of the whole town of Huntington ; but the infant must rely exclusively upon his own means. The expenses of a trial, it is stated, are not less than S00 dollars, and that in a suit, in which, if he should be successful, he, probably, will recover only nominal damages.

There is another ground, on which I think the chancellor ought to entertain this bill ; a ground clearly within some of the cases which have been cited. I am strongly inclined to think, that all the freeholders of the town of Huntington have a right to enter upon these islands, and cut the grass without the license of the trustees. The g>*ant of 1694, is to certain persons therein named. These persons made a body corporate, and have perpetual succession. But in relation to the property in question, as well as the other property mentioned in the grant, the members of this corporation are, in their natural, not corporate capacity, mere naked trustees for the freeholders of the town, and may be compelled to execute this trust, by their cestui que trusts, at any time. I very much doubt whether, if the freeholders should enter upon the island, and cut the grass, the trustees could maintain an action of trespass against them.

The grant is to the trustees, to the use of the freeholders, as tenants in common. I do not see v/hy the statute does not execute the use. If so, the freeholders of the town have the legal estate. But on this part of the case, I do not mean to express a decided opinion. It is sufficient for the purpose of giving the court of chancery jurisdiction of this case, that there is colour for this construction of the grant.

Should this construction of the grant, however, be correct, a case is presented to us, where the chancellar has an undoubted and acknowledged right to interfere. But suppose the legal estate to be in the corporation. A corporation, as such, is not liable to an action oí trespass. The only use which can be made of this property, is to cut the grass and herbage growing upon it. Thic, as is stated in the bill, is cut by as many of the inhabitants of the town of Huntington, as have occasion for it, either with, or without the" consent of the trustees. Every one of these, if the right is in the respondent, are trespassers ; and a field is thus opened for endless, fruitless, and ruinous litigation.

I am of opinion, therefore, that this is a case proper for the court of chancery, and that under the superintendance of the chancellor, such trials at law ought to be awarded* as will be necessary to determine the right; and that being once done, that he should direct the conti oversy to end, by such a decree as may be necessary for that purpose.

2. The other order from which there is an appeal, is that permitting the examination of the guardians as witnesses. The examination of witnesses in the court of chancery, is always subject to just exceptions to their competency. If they are interested, the party cgsiusi whom their testimony is to be used, may object to their competency, when their testimony is offered ; and although. I am strongly inclined to the opinion, that the guardians are net competent witnesses, yet I think that the appeal, in this case, is premature. The testimony of the guardians, may turn out not to be material; or the same facts may be proved by-other witnesses, and the testimony of the guardians may never be offered or relied upon ; and should it be relied upon, the question of their competency may always be urged against its admission.

I am of opinion, therefore, that the appeal, as to this order, ought also to be dismissed.

Spencer, J.

It cannot be necessary to repeat what has been said in other causes, as to the right of appeal from orders of the court of chancery. The right is given by statute, and when this appeal was interposed, the order was an existing one. An order for an injunction, after answer, necessarily implies, that in the opinion of the court, there is á case before it, presenting grounds on which it may eventually proceed to act; and it must be presumed, that the bill and answer have both been examined and considered. There being, then, a basis for the appeal, this court has become properly possessed of the cause; and thougfi there would be an absurdity in annulling an order which has expired by its own limitation ; yet as the merits of the case have been considered, we are called upon to make such a decree, as the justice of the case, and the propriety of preventing further litigation, may require.

; With this view, and under these ideas, this court has in various instances, proceeded to a final decree, where the appeal has been merely from an order for -a feigned issue ; but supposing the time prescribed for the trial had elapsed, when the appeal came on to be heard, it would be no objection to entertaining the appeal. In those cases, however, of orders for feigned issues, the court of chancery had given no opinion on the merits ; but the merits had been brought into view, on the argument for an issue. In the present case, the merits of the bill and answer must have been the topic of argument, on the application for an injunction. This case, therefore, comes within the principles of those cases, and is different from that of Deas v. Thorne and others,

* in which there not only had been no examination of the merits, but some exhibits were yet to be proved. I can conceive no difficulty or impropriety in examining the case, on its merits, with a view of ascertaining, whether the court of chancery had any cognisance of the cause, beyond perpetuating the testimony of the respondent’s witnesses.

This leads me to inquire, in what cases a court of equity can take cognisance of a question, purely of a legal nature, and appertaining to the courts of common law, under the notion, that the bill is a bill of peace, or in the nature of a bill of peace.

That this case involves matters of equity, as contradistinguished from strictly legal principles, has not been pretended. The multiplicity of suits, and the great expense attending their trial, together with the fact that the respondent has had one verdict, are the grounds relied on, to give the court of chancery jurisdiction of the cause.

It is of the utmost importance, that the lines of demarcation, between the courts of law and of equity, should not be confounded and violated. Hence it has grown into a maxim, that a court of equity has no jurisdiction, where the courts of common law are sufficient for the purposes of justice ; and where a plaintiff can have as effectual and complete remedy in a court of law, as in a court of equity : To this maxim there are but few exceptions. Courts of equity take cognisance of questions, involving legal principles only, and which are triable in the common law courts, in order to put an end to oppression, and to prevent a multiplicity of suits, by way of a bill of peace. There are only two cases, in which this is done.

The first is, where there have been repeated trials, and a satisfactory determination at law, on the point of right; as in actions of ejectment and trespass, which, not being final, without the interposition of a court of equity, there would be no end to the oppressiveness of litigation.*

The other case is, where one general legal right is claimed against several distinct persons, and where each suit would determine only the particular right in question, bet ween the plaintiff and defendant, in that suit.†

The cases illustrative of the latter subject of equitable jurisdiction, are, where a right of fishery is claimed by a corporation, throughout the course of a considerable river, and is opposed by the lords of manors and owners of land adjoining ; and where there exists disputes between lords of manors and their tenants, and between the tenants of one manor and another.

The respondent’s case comes within neither of these principles: Not within the first, because here has been but one trial and one verdict; and it would be unprecedented, to consider a single verdict in trespass, decisive of - , ’ .... the right between the parties : Not within the second exception, because the bill and answer admit that the trial which has passed, and those which are pending, involve the question of title to the islands; and the verdicts in which the individuals claim under the trustees and the respondents, are as operative upon them, as- though the suits were between them and the trustees, and might, in the same manner, be given in evidence en future trials. There is no pretence for such a bill, as the present, where a right is in dispute between two persons only, (and this, ia effect, is such a case,) until that right has been tried and decided upon, repeatedly and satisfactorily, at law. The respondent, then, in my opinion, has been premature in exhibiting his bill, and it ought to be dismissed. In coming to this conclusion, I am influenced by the wish to save expense, and to prevent an useless litigation in chancery, and, perhaps, a future appeal to this court.

I ought, perhaps, to notice a suggestion, that the property, being uninhabitable, it is impossible for either party to bring an action of ejectment, or a writ of right. If this were conceded, it would prove nothing ; for the trials in trespass as effectually try the title, as an ejectment, or any' real action. But the proposition is not maintainable. The acts of cutting the grass and removing it, are such acts of possession, as would warrant the making the persons exercising such acts, defendants in ejectment.

It has been objected, that the appellants should have demurred to the relief, and that, by answering, they have submitted to the jurisdiction of the court, and are now too late to make such an objection. The case of Welby v. The Duke of Rutland,* is a decisive answer to that objection ; and it establishes, that where there is a want of equity in the complainant’s bill, an answer is no ,waiver of the objection. In that case, the bill was dismissed, on the ground of a want of equity, notwithstanding the defendant had answered. •

Mitford lays down the rule correctly j “ for in general,” he says, “ if a demurrer would hold to a bill, the court, though the defendant answers, will not grant relief upon hearing the cause.”* So in the case of Ludlow v. Simond, both the Chief Justice, and Mr. Justice Thompson, limit the effect of answering, instead of demurring, to cases only where the subject matter is within the jurisdiction of the court.

I am inclined to the opinion, that the appeal from the order to examine the respondent’s guardians as witnesses, is premature ; for it does not follow, that those depositions would ever be used as evidence. Should they be so used, it would then be time to take the exception.

The result of my opinion is, that the court of chancery had no jurisdiction in this cause, beyond the perpetuating the testimony of witnesses, as this was not a case where the trials at law would not bear on the question of right between the appellants and respondent; and as there has not been such repeated trials, as reasonably to settle the question of title. Under these impressions, I think the bill should be dismissed, with the costs of the court of chancery, to be paid to the appellants.

Kent, Ch. J.

This is an appeal from two interlocutory orders of the court of chancery ; the one order of the 4th of Juñe last, directing an injunction, to restrain Jesse Wickes, one of the appellants, from proceeding to trial, at the then next Suffolk circuit, in three several actions of trespass, pending in the supreme court; and the order of the 3d of June last, directing, that the respondent, JSicoll, have leave to examine his two guardians as witnesses.

1. The injunction order was special, and confined to the then ensuing circuit court in Suffolk. It has, therefore, long since spent itselfj and a preliminary question very naturally occurs here, whether an appeal from such a temporary order can be sustained. An appeal from such an order is without precedent, and it appears to me to be without sense or meaning. What use can there be in such an appeal ? To reverse an order, which has long since expired, is absurd. It would be doing an idle act, which does not comport with the gravity of a court of jusr tice. It is one of the maxims of the common law, and which is a dictate of common sense, that the law "will not attempt to do an act which would be vain, or to enforce an act which would be frivolous. Lex nil frustra facit. Lex non cogit ad vana seu inutilia. An application of this rule lately occurred in the supreme court. '

In the case of Teel v. Sweeting, (2 Johns. Rep. 184.) a motion was made by the attorney-general, for leave to file an information, in the nature of a quo warranto, against one of the supervisors of Onondaga county, who was alleged not to have been duly elected into office. But the court observed, that as the office of the supervisor would expire in April, and before the remedy prayed for, could have effect, (for the motion was made in February,) it would be idle and useless to grant the motion, and it was, on that ground, refused. I cite this decision, for no other purpose, than to show, that it has hitherto been considered as a settled principle, that a court will not undertake to exercise power, but when they exercise" it to some purpose.

If we were to follow the suggestion of one of the appellants’ counsel, and add to the decree of reversal, that they have liberty to proceed to trial, we should be granting nothing, for the appellants have that leave already. There is no existing order or injunction to restrain them. He undoubtedly intended, that our order should have the effect of declaring, that no future injunction was to be interposed. But I much question the propriety of such an exercise of power, by this court. We are not a court of original jurisdiction. We have no right to regulate the court below, touching the future progress of a cause. We cannot make a mere advisory decree, as to future cases. Our province is to review, and correct acts which ¡are past. We are not to anticipate future mistakes, or to prescribe for the exercise of a future discretion. How can we know, but that circumstances may hereafter arise, in this very cause, by unforeseen casualties, or extraordinary combinations, which would render it the indispensable duty of the court of chancery to restrain the proceedings at law, and which this court would approve of, if the point was judicially before us ?

But then, it is said, the court of chancery may, perhaps, restrain another trial, by a like temporary injunction ; and that this may be repeated, to ties quoties, and the party be remediless, if such injunctions cannot be appealed from. I answer, in the first place, that such suppositions are not to be indulged. The fair and legal intendment is, that no further injunction will issue without legal cause. The chancellor has informed us, why the injunction issued was temporary. He did it for greater caution, and that the parties, as well as himself, might have an opportunity to examine and reflect on the subject, before he determined whether he would, or would not enjoin the causes in the supreme court, until the final hearing before him. The appellants ought to have waited the result of that deliberation. How could they know, but that the application for a further injunction would be denied, and if it should be, then certainly this appeal has been vexatious and useless. The appellants have their fit and final remedy. They ought to press for a final decision in chancery upon the merits of the bill. This would not subject them to any very grievous delay 5 and, indeed, of what consequence is a little delay in a suit, brought to recover damages for a petty trespass, not amounting, perhaps, to five dollars. It is admitted, that the aged witnesses might, at any time, be examined, de bene esse, under a rule of the supreme court. After a decision upon the merits, either by a decree for a perpetual injunction, or by the award of an issue, it would, then, be the proper time for the party conceiving himself aggrieved, to appeal. The bringing the cause to a hearing is, then, the proper remedy against the repetition of injunctions. But we are not to anticipate any undue exercise of this power in the court below. A reasonable confidence must be entertained, that every court will exercise its discretion soundly ; and the case before us, is a striking instance of caution in the application of the power to grant injunctions.

Without, therefore, looking into the merits of the order of the 4th June, I am of opinion that, as to that order, the appeal ought to be dismissed. The order being dead, long before the cause came into this court, and the period of its existence being stated in the order at the time it was granted, are facts, which form with me an insurmountable objection to the appeal.

• But other views were taken of this part of the cause, by the appellants* counsel.

One of them admitted, that the injunction was proper, if the cause was properly attached in equity. If the court of chancery did right in taking cognisance of the cause, the injunction followed as a matter of course j though, instead óf being limited to one circuit, it ought to have continued until the final hearing of the cause. The counsel were, therefore, led to deny, that there was any ingredient of equitable jurisdiction in the- case, and to urge, that the bill ought now to be dismissed. My answer to this suggestion is, that the question, on dismissing the bill, does not come properly before us. That question involves the whole merits of the cause, and which have never been discussed and decided upon in the court below. This court made a very sound decision, a few days ago, in the case of Deas v. Thorne and others, which was, that on 'an appeal from an interlocutory ordér of the court of chancery, made before a hearing of the merits, this 'court would not assume original jurisdiction, and examine the merits j but would confine itself to the order. If this decision is to be respected and observed, we cannot, consistently, examine the merits of the bill in the present case. The granting of the temporary injunction of the 4th June, may, perhaps, be considered as a decision on the merits of the bill; but this is not the just inference'from that order. It was a mere step of precaution ; a preliminary measure for the occasion, and implies, that the merits had not then been understood or considered. The same argument might have been used in the case of Deas v. Thorne. Every interlocutory order may, in one sense, be considered as • an opinion, that there is some colour for the action ; but that is not the consideration upon the merits, intended by our decision, and I am perfectly satisfied, that we cannot, consistently with that decision, give a final opinion on the merits of the bill.

If, however, the court should not concur with me, in this opinion, and should enter into the merits of the bill, I will, then, state the reasons why I think the cause ought to be permitted to proceed. I do not mean by this, that I have formed any definitive opinion, as to what ought to be the decree of the court of chancery. Such an opinion cannot safely be formed, until after the proofs shall have been taken and considered. But viewing the cause as it appears before us, I think that there is good colour, at least, for sustaining the bill, and that it would be proceeding without precedent, to dismiss a bill after an answer has been put in to the merits, and before those merits have been brought to a hearing in the regular course of the court.

It has not been usual to exhibit a bill in chancery, for quieting a title between two individual claimants, until after several verdicts at law. I do not know, however, that it has been deemed requisite to require any precise number of trials at law, before such a bill of peace can be sustained ; and I am inclined to think that there is no positive rule existing as to the number of verdicts which must precede the bill of peace.

In the case of The Earl of Bath v. Sherwin, which was decided in the house of lords, near a century ago, (1 Bro. P. C. 166.) the counsel for the appellants, asserted before the lords, that there were many precedents where courts of equity granted perpetual injunctions, for quieting inheritances after two trials, and where only one of those trials had been at law. Each case will probably depend, in a degree, upon its peculiar circumstances. These bills of peace were very reasonably introduced to supply a defect of jurisdiction in the courts'of law, which permit actions of ejectment to be brought without end, and such actions, therefore, in the hands of a rich adversary, might become engines of oppression and ruin. In many eases, therefore, public justice will loudly call for these bills. But the present bill is not strictly a bill of peace. Its object is not to quiet a title, supported by the single verdict at law, but its object is to prevent a multiplicity of actions, equally vexatious and oppressive to both parties, by asking for the aid of the court of chancery to have the title tried under its superintendance, so that there may be a final decision, And when a bill is brought on this ground of preventing a multiplicity of vexatious suits at law, the question, as tq the number of verdicts obtained, does not arise, and cannot be material.

In the case of Tenham v. Herbert, (2 Atk. 483.) Lord Ilardwicke observed, that “ there were some cases, in which a man might, by a bill of this kind, come into chancery first, and there were others where he ought first to establish his right at law, Where a man sets up a general exclusive right, and where the persons who controvert it with him, are very numerous, and he cannot, by one or two actions at law, quiet that right, he may come into, this court first, and the court will direct an issue, to determine the right, as in disputes between lords of manors and their tenants, and between the tenants of one manor and another ; for in these cases, there would he no end of bringing actions of trespass, since each action would determine only the particular right in question between the plaintiff and the defendant.” These observations are entitled to peculiar weight since they come from so great a magistrate as Lord Hardwicke, who presided for 20 years i'n the English court of chancery, and during all that timo only three of his decrees were appealed from, and they were affirmed. The question, then, is, whether the present case does not come fairly within the spirit and principle of this doctrine. The bill states, that the rival claims to the three desolate islands, has produced many law suits, the greater part whereof had been tried and determined in justices’ courts. That in 1802, the respondent’s guardians brought three several actions of trespass, all of which were removed into the supreme court, and there brought to issue ; that one of those actions was brought to trial, at the Suffolk circuit, in 1805, and from one of the affidavits in the cause, it would appear to have been tried at an expense to the parties of 500 dollars and upwards. It further appears, that there are two more actions of trespass ready for trial, in which the respondent is plaintiff, and three more actions of trespass, in which the appellants are plaintiffs, and that the actual damages sustained by the trespass, in either case, does not, perhaps, exceed five dollars in amount. If these five actions of trespass, now at issue in the supreme court, are to go down to trial, the expense, judging from the former trial, may be computed at about 2,500 dollars for an actual damage of, perhaps, 50 dollars, a circumstance which would certainly reflect no credit upon the justice of the country. The bill further charges, that the trustees of Huntington, and the inhabitants of that town, declare it to be their intention from time to time, to enter, and to encourage others to enter upon the islands, and carry away the grass ; and the answer admits and avows the determination. Whether every freeholder and inhabitant of the town of Huntington, may not, without special license from their trustees, enter and cut grass on these islands, is a question arising upon the construction of their grant, and upon which I am not now prepared to give an opinion. If that should be the case, suits at law might be as numerous as the inhabitants of that town. From the peculiar state of the islands in controversy, the general interest and claim of the inhabitants of Huntington, and the numerous suits to which these contending claims have already given birth, I am strongly impressed with the .fitness and expediency of some jurisdiction like that assumed by the court of chancery, in which such a litigation may be placed in a train for a solemn and final decision. An attempt seéms to have been made by the counsel, to excite our jealousy, as if the court of- chancery was extending the-boundaries of its jurisdiction, and taking cognisance of matters which belong to courts of law. But, in my opinion, such suggestions might well have been spared. The object of the equity power, in such cases, is to prevent endless and destructive suits at law. This object is as benign, as it is rational; and those who love justice and hate oppression, would, I should think, feel disposed to cherish, rather than destroy such a power. It is not true, that when the jurisdiction of such peculiar cases, is transferred from the. courts of law to the court of chancery, that the parties lose the benefit of a viva voce examination of their witnesses, and of a trial by jury. It is well known, that such cases are always sent back again, to be tried at the circuit court, under a feigned issue. Whether the issue comes from the court of chancery, or the supreme court, the trial at the circuit is the same ; but then, there is this preeminent advantage of having the cause tried under the superintendance of the chancellor, that he can render any one trial final and conclusive upon the right in litigation ; and in this respect, chancery supplies the manifest defect of jurisdiction in a court of law. If one trial, either from the report of the circuit judge, or from its own view of the testimony, does not satisfy the judgment of the court of chancery, it will order a second trial at law ; and when, one or more verdicts shall be satisfactory, as to the right, in question, then the court of chancery will perpetually enjoin all further law suits, and put an end to the contest.

The law, upon this head, is extremely well summed up, by Lord Ch. Baron Gilbert, (Forum Romanum, 195.) who observes, “ that there is an injunction to prevent multipli- . city of suits, as where many suits are depending, and arc. Mltely to happen from one and the same thing. The court will here interpose, and grant an injunction ; they will direct a proper issue to try the whole, and all the rest shall be bound by the verdict, or else there might be twenty actions, and as many verdicts, where one proper issue ends the whole, and it is only directing one issue to try many more.”

After this explanation of the object of the jurisdiction of the court of chancery in these cáses, and after a review of the state of the present vexatious controversy, I am inclined to the opinion, that there are, at least colourable, if not strong grounds for the present bill, and that it would be premature to dismiss it, before its merits have been duly discussed and considered in the court below.

Another reason why I think the bill sustainable is, that the respondent does not appear to have a clear and adequate remedy at law. The remedy, by an action of ejectment, or a real action, would be attended with circumstances somewhat precarious and doubtful. This difficulty arises from the nature of the subject in dispute, consisting of three islands, incapable of being inhabited or inclosed. If the respondent was to bring the ordinary action of ejectment, he must make out in proof, that the person against whom he brings his suit, was in actual possession of the premises, or he would be nonsuited upon the trial; and how would Nicoll prove, that the trustees of Huntington, or any inhabitant of that town, was in possession of those islands ? If acts of entry to cut grass, make a person a tenant in possession, then the islands are as much in the possession of one party as the other, for they have mu> tually entered and cut grass, and there are now mutual actions of trespass pending in the supreme court. The truth is, there is not, and cannot be any actual occupancy of these islands, by any party, beyond these occasional acts of entry, to cut grass or sedge. The law, however, determines this point, by casting the possession of the islands upon the party who has the legal title. The right, in this case, draws with it the possession, and if Nicoll admits that the trustees of Huntington are in possession of the islands# he may, possibly, admit away his cause, since, they cannot be in possession, in any other way, than by having the title: And if the trustees of Huntington are admitted to have been in possession at the commencement of the action of ejectment, the next inquiry would be, when did that possession commence. A possession for 20 years, is a good title in ejectment; and if the town of Huntington Was in possession of the islands when the suit was brought, it would be very difficult for Nicoll to controvert a possession in them of 20 years. But supposing that these difficulties, arising from the admission of the possession in the trustees of Huntington, could be surmounted, yet it is unreasonable to drive Nicoll to an action of ejectment, because he would, thereby, part with a legal advantage. A jury of Suffolk county have recently determined in favour of his right. This appears to have been a very solemn, and contested trial. He has, therefore, the best claim to be deemed in possession, and the hazard and difficulty of bringing the ejectment ought to be thrown upon his adversaries.

Again, if he brings the ejectment, he must not only admit the possession out of him, but his title must be made out clearer than that of the defendant; because, in all doubtful cases, it is the practice of the courts, to instruct the jury, to leave the defendant where he is, undisturbed. The whole burthen of making out a good title, is cast upon the plaintiff in ejectment; and until that be done, the defendant sits still and protects himself by his possession.

The same doubts and difficulties would arise, if the respondent was to attempt to bring a writ of right, a remedy which was recommended to the respondent, by the appellants’ counsel. He must admit the inhabitants of Huntington to be the actual tenants of the freehold; and he must, on his part, show an actual seisin in himself, or in his ancestor, within the last 25 years,

To conclude, then, my observations on this part of the subject, I am of opinionj that the appeal as to the order of the 4th June, ought to be dismissed :

1. Because the order was temporary, by the terms of it, and.expired before the appeal could be heard.

2. Because we cannot grant any relief in this case, as reversing the order would be useless, and prohibiting a new injunction would be unlawful.

3. Because we cannot, on appeal, from such a preliminary order, decide on the merits of the bill.

,4. Because, admitting that we could decide on the merits," we ought not to dismiss the bill, as it is brought to prevent numerous and vexatious suits at law, and to put the cause in a way for "one final trial, and decision j. and because, a fair, equal and adequate legal remedy to either party, is, at least, doubtful, owing to the singular situation of the lands in dispute.

I shall next proceed to examine briefly, the appeal from the order of the 3d of June, directing that the respondent should have leave to examine his guardians as witnesses. The objection to this part of the appeal is, that it is premature. There is no gravamen, until the witnesses have been examined, and an attempt made to take their depositions. Perhaps, they never will be examined. The respondent may think it best to waive the examination, or if the witnesses be examined, he may think their testimony unimportant, and may consent to suppress their depositions. To object to this order would be as premature as it would be to object to the issuing of a subpoena to bring a witness into court, who is alleged to be interested in the cause. The general rule of practice, on this subject, is plainly laid down in Harrison’s Chancery Practice, (v. 1. p. 589.) which is, that when publication has passed, if either party conceive any of the witnesses to be incompetent, he may make out his objection, and then the deposition of the witness so impeached, will not be permitted to be read at the hearing. The examination of witnesses in chancery, is always de bene esse, and with a saving of all just exceptions; and whether it be so expressed, or not, in the rule, it is always understood*

I am of opinion, accordingly, that there is no ground, and, indeed, that there is no precedent for an appeal from such an order, and that the appeal ought, upon every point, to be dismissed,

The majority of the court concurring in this opinion, it was, thereupon, ordered, adjudged, and decreed, that the petition of appeal, presented by the appellants, be dismissed : and that the record and proceedings brought here, be remitted with this decree, to the court of chancery, to be proceeded upon, according to law,

Appeal dismissed»

Mr. Justice Thompson, w as absent during this session of the Court of Errors, from indisposition.

Ante, p. 548.

Bro. P. C. 373.

2 Atkyns, 391, 483. 1 Bro. P. C. 40. 572. 6 Bro. P. C. 575.

6 Bro. P. C. 575.

Mit. Pl. 100.

%'* The cases of Sands and others v. Codncice and others, Rogers and wife v. Cruger and others s MWickar and others v. Wolcott and ethers ; and Tillotson v. Cheetham, on account of their great length, áre’ nessesarily pestponed to the next volume.