Bank of B. Falls v. R. & B. R. Co. et als.

viewed it, at least, as doubtful, whether at law a failure of the trust could be used as a defense. In such a case, the power of the chancellor to cancel the bond is clear.

Peirsoll et al. v. Elliott et al., 6 Peters, was a bill for a perpetual injunction, and to compel a delivery up of a deed of conveyance of land, which was void upon its face, and the court declined to give the relief prayed, upon the ground that it was void upon its face, and consequently the defense must have been plain, adequate and complete at law. Though it does not appear that the deed of surrender in the present case was void upon its face, yet the infirmities in the deed, as claimed to exist in the bill, are equally examinable and available at law, as in chancery; and we apprehend there are no peculiar reasons, which exist in the present case, why the court should exercise the powers which they are asked to do by the bill. The suit at law to try the validity of this deed, was pending when this suit was commenced, and most probably will be brought to a final determination in a shorter time than would be required, in a court of chancery, to bring the controversy to an end; and hence a fear that the testimony necessary to show the infirmities in the deed may be lost by lapse of time, cannot be urged as a good ground for going into chancery. In a case where a bill, quia timet, was filed to compel the delivery up of an apprentice's indentures, after he was out of his time, a decree was made upon the master, in the alternative, that he should either bring his action at law in one year, or deliver up the indentures. Bracken v. Bentley, 1 Chan. Rep. 110.

Though it may be a wholesome jurisdiction for chancery to exercise, to order void instruments to be delivered up, in cases where vexatious demands might afterwards be made upon them; yet in the present case there is no more vexation in having the rights of the parties tried at law, than there would be in chancery, and there may be much less. An adjudication in either court, upon the validity of the deed of surrender, would be final and conclusive upon the parties; and I am not now aware of a case where a creditor levying an execution upon personal property has been allowed to go into chancery to set aside a conveyance of such property, for fraud, upon the sole ground that it cast a cloud upon the title to the property, especially while a suit was pending by the claimants

Bank of B. Falls v. R. & B. R. Co. et als.

at law, to recover the value of the property. The claimants of this property reside in Massachusetts, and if it has been wrongfully taken from them in this state, their right of action is transitory, and the suit may well be brought in that state, provided the court have acquired jurisdiction over the bank. We do not see that the situs of the railroad company, under whom each one of the parties claim, or of the subject matter of the controversy, or a consideration of the question by what laws the rights of the parties are to be determined, can be made the ground of any equitable right peculiar to the complainants, or furnish a sufficient reason why this court should override and control indirectly the jurisdiction of the court of Massachusetts.

It is no doubt true that there is considerable contrariety of opinion in the cases in England, and in this country, relative to the questions which arise in this case, and it would occupy too much time and space to analyze and compare them one with another.

In the case of Mitchell v. Oakley, 7 Paige 68, it was held, in a case where the complainant had a perfect defense at law in a suit pending against him, taking the allegations in his bill to be true, that, although a court of chancery had concurrent jurisdiction with a court of law in relation to the subject matter of the suit, yet it would not grant a preliminary injunction for the mere purpose of obtaining exclusive jurisdiction of the suit, but that the party might, in such a case, come into chancery for relief upon the final hearing of his cause, subject to the power of the court to refuse him his costs, and that to entitle him to a preliminary injunction to stay procedings in a common law court, first commenced, he must show, by his bill, that some injustice would be done him, or that he would be deprived of some legal or equitable right if the proceedings at law were permitted to proceed. To the same effect is Gridley v. Gavaison, 4 Paige 647. It may be remarked that there are no allegations in the orator's bill to show a necessity of going into chancery for the furtherance of justice, and the cases in Paige would require this court even to refuse a preliminary injunction, staying the proceedings in Massachusetts. But so far as those cases go to show that the complainant may come into chancery for relief upon a final hearing, subject to be disallowed his costs, it appears to us they are not founded upon any sound or salutary

Bank of B. Falls v. R. & B. R. Co. et als.

principle. They leave to the adversary the right to proceed in a litigation of the facts in a common law trial, at the same time the proceedings are going on in chancery, and, upon a final hearing in chancery, the common law court may be ousted of their jurisdiction to proceed in the cause. The doctrine of those cases leads to a needless accumulation of costs to the parties, and a conflict is induced between the parties, and between the courts, in determining in which court a final hearing shall be first had. It appears to us much more accordant to sound principle and policy, in such cases of concurrent jurisdiction, where there is no occasion of going into chancery, to hold that that court which has first assumed jurisdiction and control over the subject matter of the controversy, should be entitled to retain it for a final hearing, and such we believe to be the current of authority.

We think the decree of the dismissal of this bill, by the chancellor, should be affirmed with costs. Let the cause be remanded accordingly.

WALTER L. JOHNSON v. WILLIAM KINGSBURY AND EUSEBIA KINGSBURY

Discontinuance of suit by expiration of justice's term of office; liability of the plaintiff for the defendant's costs.

An action pending, and on trial by a jury, on the 30th day of November, before a justice of the peace whose term of office expired on that day, was proceeded with, by the agreement of the parties, until 6 o'clock on the morning of the 1st of De

Johnson v. Kingsbury et al

cember, when the jury failed to agree; and the ex-justice took no further cognizance of the cause, and neither party caused a new justice to be substituted in his place. Held that the defendant therein could not maintain an action against the plaintiff for the taxable costs to which he had been subjected in his defense of the suit.

ACTION ON THE CASE. The declaration set forth the commencement, on or about the 6th of September, 1853, of a suit by the defendants against the plaintiff, returnable before Prescott Heald, Esq., a justice of the peace, on the 12th of said September; a trial by jury before said justice on the 12th, and subsequently by adjournment on the 26th of September; upon both which trials the jurors failed to agree and were discharged; a further continuance of said suit to the 28th of November, and the declaration then proceeded as follows.

"And on said 28th day of November, aforesaid, a jury was again empanelled, and the trial of said cause occupied the 28th, 29th and 30th days of said November, and up to six o'clock in the morning of the first day of December, 1853; and the plaintiff avers that the term of office of said justice Heald expired on the last day of November aforesaid, and the said justice Heald was not elected a justice of the peace for the year, commencing on said first day of December. And on said 30th day of November, late in the day, it was agreed by and between the counsel for the plaintiffs and defendant, in said cause, that if said trial could not be ended before the first day of said December, that said justice Heald might continue to act as justice in said cause, until the jury should return a verdict in said cause, and judgment be rendered on it, or until said jury should fail to agree; and that all the acts of the said Heald, as aforesaid, should, after the expiration of his said office, be binding upon the parties, as though his office continued to that period; and said justice Heald proceeded with the trial of said cause, and said trial continued until past twelve o'clock at night of said 30th day of November, and until six o'clock in the morning of the first day of said December, when the jury in said cause failed to agree, and said justice Heald took no further cognizance of said cause, and no other justice was requested to, or did take cognizance of said cause, but the same was ended as aforesaid, and was in no way thereafter revived; and the plaintiff avers that the legal and