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the effect of defendant's act in disabling the produce an unjust result in a pending suit and plaintiff to respond to the crown, and that consequent irreparable injury to his adthe chancery was a court of superior and versary, he may of course be enjoined. In more general jurisdiction. See Joanes v. this class lies the injunction granted by JusWhitney (1578) Cary, 161; 21 E. R. 60 (but tice Barnard in Erie R. R. Co. v. Ramsey, 45 this was an injunction out of chancery to N. Y. 637; the criticism being that he should restrain an action at law brought in the ex- have left the company to apply for a stay chequer after the commencement of the chan- by motion in the suit already pending. cery suit); Vendall ‘v. Harvey (1632) Nels. (6) Oppression amounting to fraud may be 19; 21 E. R. 427; 1 Eq. Cas. Abr. 80, G. 2, attempted by suing a debtor outside of his and 134, D. 3; 21 E. R. 893 and 939; where home jurisdiction in order to gain an unconthe Lord Keeper (North) overruled a plea scionable advantage over him, in which case that set up the pendency of a prior equitable equity may restrain the creditor upon proper action in the exchequer as a bar to a suit in terms. Standard Roller Bearing Co. v. Cruchancery, on the ground that "the chancery cible Steel Co. (N. J. Ch.) 63 Atl. 546, decided was the highest court of equity, and though by my predecessor, Chancellor Magie, was the exchequer was an ancient court of equity, a case where both parties were corporations yet the same was but a private court, and of the state of New Jersey. The defendant its jurisdiction properly was only for getting bad a claim against the complainant of less in the King's revenue, and for the King's offi- than $4,000, and notwithstanding it might cers, and they ought to keep within their sue the complainant in the courts of this proper bounds.” And see 6 Vin. Abr. “Court state, or prosecute its claim by attachment of Exchequer," Q. 2 (page 569).
upon a valuable property of the complainant (2) Interpleader suits are a recognized ex- in Pennsylvania (in either case the claim ception; and where a plaintiff is entitled to could be prosecuted and defended by proofs interplead defendants, and pays the money and witnesses at hand), the defendant brought into court, other actions against them may be three attachment suits simultaneously in enjoined, whether these be legal or equitable. Ohio, Michigan, and Wisconsin, wherein credWarington V. Wheatstone (1821) Jac. 202; its due to the complainant to an amount ex4 Eng. Ch. 203; 37 E. R. 826. (Here one of ceeding $20,000 were garnisheed. The learnthe suits enjoined was legal, the other equi- ed Chancellor held that these attachment table; see 10 Sim, 480.) So in Crawford v. suits in distant states were oppressive, and Fisher (1840) 10 Sim. 479; 59 E. R. 701; that their prosecution should be enjoined, Richards v. Salter, 6 Johns. Ch. (N. Y.) 445 ; upon terms, however, that complainant would Sieveking v. Beherns (1837) 2 Myl. & Cr. 581, submit to a speedy trial of the claim in this 592, 593; 40 E. R. 761, 765; Prudential state, and would give bond, with security, Assurance Co. 9. Thomas (1867) L. R. 3 Ch. in a penal sum double the amount of the App. 74; 2 Story, Eq. $ 808.
claim conditioned for paying the amount as(3) Creditors' suits against executors or certained to be due; ascertainment either to administrators for the administration of be made by this court or by any court of the estate may be treated as an exception; competent jurisdiction in this state, at the where, after (but not before) decree, an in- election of the defendant. junction has frequently been issued to re- (7) Cases where a party oppresses his adstrain other proceedings by creditors at law versary by suing him in a foreign jurisdicor in equity, the decree in the administra- tion for the purpose of evading some estabtion suit being considered to be in the nature lished policy of the jurisdiction where the of a judgment in favor of each and every parties are domiciled. creditor. 1 Story, Eq. § 549; 2 Id. $ 890; Since complainant here relies upon certain Jackson v. Leaf (1820) 1 Jac. & Walk, 229, decisions that, so far as they have any per231; 37 E. R. 362; Beachamp v. Marquis tinency, belong in this category, they may of Huntley, and Clarke v. Earl of Ormonde well be examined at some length. In read(1822) reported together in Jacob, 546; 37 ing the opinions, care should be exercised E. R. 956; Carron Iron Co. V. Maclaren in distinguishing that part of the reasoning (1855) 5 H. L. Cas. 416; 10 E. R. 415, cited which merely establishes the power, from that more fully hereafter.
which vindicates its exercise in given cases. (4) Prevention of multiplicity of suits. On Bushby v. Munday, Cloves & Cracroft (1821) this ground suits in equity may no doubt 5 Mad. 297, 56 E. R. 908. Bushby had given be enjoined, if necessary to do so, as well as to Munday, as trustee for Cracroft, a bond to suits at law. Probably Beckford v. Kemble secure a gambling debt, and Munday had as(1822) 1 Sim. & Stu. 7, 57 E. R. 3, belongs in signed it to Cloves. The bond was given this category; there Leach, V. C., stayed a in England and was in English form, and foreclosure suit pending in the colonial court was claimed to be void as a gambling debt of chancery in Jamaica until an account under an act of Parliament. Bushby was a could be taken in a suit for redemption in Scotchman and proprietor of real estate England, all the parties being in England, in Scotland, but resident abroad. Cloves so that the accounts could be more conven- brought an action in the Scotch court upon fently taken there than in Jamaica.
the bond, and thereby secured a lien (equiv
first became a surety by joining in these se curities. One of the bills of exchange have ing been paid, the plaintiffs, under advice of
on Bushby's estates. The latter thereupon Aled a bill in the English Chancery for the purpose of having the bond delivered up to be canceled, and incidentally to restrain the prosecution of the action in Scotland. The grounds of the application for the injunction were that a bond was an English security, and a discharge from it abroad could not be pleaded in England; that the English Chancery might require the bond to be delivered up, while in Scotland no such relief was given; in England discovery could be had by sworn answer of Munday and Cracroft, whereas in Scotland such an answer would not be evidence; besides which it was urged that the invalidity of the bond arose out of an English act of Parliament, not in force in Scotland. Leach, V. C., allowed an injunction upon terms, saying (5 Madd. 308, 56 E. R. 913): “Mr. Bushby may succeed in his defense in Scotland, and still be exposed to future proceedings upon the bond; but if he establish his case here, the bond itself will be delivered up to be canceled, and he will be absolutely relieved from all future proceedings. This court is a more convenjent jurisdiction for determining the question whether Cloves bas by the law of England a right to recover upon the bond, than the Court of Session in Scotland. The proceeding there is less likely to elicit the truth of the case than the proceeding here, because there Bushby cannot have the benefit of Munday's admissions upon his oath, and because, Munday and Cracroft being both resident out of Scotland, he cannot compel their testimony as witnesses.” The terms imposed were that Bushby should consent to judgment in Scotland so as to secure to Cloves a priority of lien upon the real estate, subject to the event of the suit in Chancery. I deem it plain that the remark of Sir John Leach about the English Chancery being “a more convenient jurisdiction" than the Scotch court for determining a question of English law was not intended to indicate that the injunction was to be allowed on this ground, but as showing that an injunction, allowed on the other grounds mentioned, would not work a hardship upon Cloves.
Talleyrand v. Boulanger (1797) 3 Ves. 447, 30 E. R. 1099. A personal bond was given when obligors and obligee were citizens and residents of France. By the law of France there was no liability to arrest on civil process for such an obligation. Afterwards the parties to the cause emigrated to England, and their property was confiscated. One of the plaintiffs was an obligor in this bond, as surety, and, being about to sail on an expedition which went from England to the coast of Brittany, was arrested at suit of the defendant, and in order to procure his release made a cash payment and gave two bills of exchange payable in a short time, and executed a new bond payable six months after peace should be concluded between France
and were thereupon arrested and held to bail by the defendant in four actions, whereupon a bill was filed for an injunction, and the Lord Chancellor (Lord Loughborougb) granted it on the ground “that the proceeding on the part of the defendant has been extreme ly oppressive and immoral. I am not pre pared to say how far this court will finally give redress; but I will not allow the defendant to avail himself of an advantage got by duress, which is the sole cause of the new engagement." This case was manifestly decided upon the ground of apparent hardship, and in disregard of the rule that the lex fori governs actions for the enforcement of a contract although made in another jurisdiction. Like the case of Melan V. Fitzjames, 1 Bos. & Pul. 138, decided by the Court of Common Pleas in the same year, it is a plainly erroneous decision, outcome of the troublous times. Although Lord Brougham cited both these cases with apparent approval in the House of Lords 40 years later, yet the decision then made was to the effect that the law of the country where a contract is to be enforced must govern its enforcement. Don. v. Lippmann (1837) 5 Cl. & Fin. 1, 18; 7 E. R. 303, 309. And in Liverpool Marine Credit Co. v. Hunter (1868) L. R. 3 Ch. App. 479, 486, Talleyrand v. Boulanger was severely criticised. Melan v. Fitzjames was distinctly overruled and the doctrine of the dissenting opinion affirmed in De La Vega v. Vianna (1830) 1 Barn. & Ad. 284. And so, little (if anything) remains of author. ity in Talleyrand v. Boulanger.
Lord Portarlington v. Soulby (1834) 3 Myl. & K. 104, 40 E. R. 40. An injunction was allowed to restrain defendants from suing in Ireland upon a bill of exchange given by plaintiff for a gambling debt. The ground of the injunction, however, was that the court in which the action was brought was a court of common law, and had no jurisdiction to stop the proceeding on the ground that it was founded upon a gaming transaction.
Carron Iron Co. v. Maclaren (1855) 5 H. Lo Cas. 416, 10 E. R. 415, rather bears against the complainant. The company was a Scotch corporation, having its manufacturing works in Scotland and an important sales agency in London. A suit for administration of the estate of one Stainton, deceased, had been instituted in the English Court of Chancery, and a decree made for an accounting. Afterwards the company, a large creditor of the decedent, instituted an action in the Scotch Court of Session, in which process was issued (equivalent to our writ of attachment) securing a lien upon real and personal estate of the decedent in Scotland. An injunction was allowed to restrain this proceeding, but on appeal to the House of Lords it was dissolv
foreign creditor resident abroad, suing for his land should restrain the creditor from prodebt in the courts of his own country.
ceeding against the debtor in another state The following cases are typical of the to which the creditor bad resorted to evade group, and appear to be the principal au- the Maryland laws probibiting imprisonthorities upon the question of enjoining for- ment for debt, where the foreign court must eign actions brought to evade the home pol- | through imperfect methods of proof ascertain icy:
the statute on which the debtor relied to In Margarum v. Moon, 63 N. J. Eq. 586, 53 avoid the transactions, and where there Atl. 179, creditor and debtor were both citi. must be difficulty and expense in obtaining zens and residents of New Jersey, and the evidence. debtor under the laws of this state was en- It will be observed that in all of these castitled to $200 exemption from process, and es (with the single exception of Bushby v. had not personal property of that value. He Munday, where other special circumstances had a claim for wages against the Pennsyl- appeared), the party against whom the invania Railroad Company, and his creditor junction was issued had either gone himselt assigned his claim against the debtor to a to a foreign jurisdiction, or bad sent bis nonresident, who, in attachment proceedings claim there for prosecution by his assignee,' in the courts of West Virginia, garnished the in order to evade some distinct prohibition wages due to the debtor from the railroad of the local law of the common domicile. company. This court allowed an injunc-(In most of them, the suit whose prosecution tion on the ground that the resident creditor was restrained was an action at law; but was endeavoring to deprive his debtor of the I assume that in such a case it would make benefit of the exemption provided by the law no difference whether the foreign action was of their common domicile.
an action at law or an action in equity.) But Dehon v. Foster, 4 Allen (Mass.) 545; Id., it is important to observe that the public 7 Allen (Mass.) 57. A resident of Massachu
policy, whose attempted evasion was deemBetts being insolvent under the laws of the ed sufficient ground for injunction, was in commonwealth, and proceedings in insolvency each instance somewhat akin to a police reguhaving been commenced there, an injunction lation, being designed to maintain a certain was allowed to restrain one of the creditors, standard in the social, moral, or commercial who likewise was a citizen of Massachusetts, life of the state adopting it; such as a profrom proceeding by attachment in another
bibition against gambling, against preferstate to divert property from the assignees ences in insolvency, against imprisoning the in insolvency and thereby secure a preference honest debtor or depriving him by civil profor himself, contrary to the policy of the cess of the last comforts of life. There is, insolvent law of Massachusetts.
is seems to me, a noticeable difference beTo the same effect is Cunningham v. But- tween that sort of local policy and the alleg. ler, 142 Mass. 47, 6 N. E. 782, 56 Am. Rep. ed grounds of public policy that are asserted 657. This case was carried to the Supreme in the present case. Court of the United States, upon the ground Besides, this case lacks two of the elements that such an injunction was a violation of that were treated as essential in the cases the "full faith and credit" clause of the fed
just referred to; there was no common domieral Constitution. The decree was affirmed, cile of the parties in this state, and the deCole v. Cunningbam, 133 U. S. 107, 10 Sup. fendant company did not choose the MassaCt. 269, 33 L. R. A. 538.
chusetts jurisdiction for the purpose of evadWilson v. Joseph, 107 Ind. 490, 8 N. E. 616.
ing any law, policy, or doctrine peculiarly Injunction granted to restrain a resident of
cognizable by the courts of New Jersey, but Indiana from prosecuting an attachment pro- for the very simple reason that Massachuceeding against another resident in the courts setts had jurisdiction over the person of Mr. of another state in violation of an Indiana Bigelow, while this state had not. Mr. Bigestatute which made it an offense to send a low is sued in personam in his home jurisclaim against a debtor out of the state for
diction, in equitable actions, and in a court collection in order to evade the local exemp- of full equity jurisdiction. He tests the sense tion laws.
of that court upon the law by a demurrer, Sandage v. Studebaker Bros. Co. (1895) 142 and being overruled he answers upon the Ind. 148, 41 N. E. 380, 34 L. R. A. 363, 51 merits, submits to a hearing upon the merits, Am. St. Rep. 165, held that a citizen of one a finding of facts is made, and upon it final state may be enjoined from prosecuting an decrees are made against him. The litigaaction against another citizen of the same tion in that court continues for more than state in a foreign jurisdiction for the pur- five years.
After all this, and pending appose of evading the laws of his own state. peals taken by him and by his adversary to
Miller v. Gittings, 85 Md. 601, 37 Atl. 372, the court of last resort, he comes into the 37 L. R. A. 654, 60 Am. St. Rep. 352. The state of New Jersey to bave his adversary transactions out of which an alleged debt restrained from further prosecuting the ac arose occurred in Maryland, and were with- tions in Massachusetts. He proposes no in the statute prohibiting gambling; both waiver of his appeals there taken. He offers parties were citizens and residents of that no security that he will abide by any docree here or there. He avers, it is true, that in the ed at first about 100,000 shares, and afterMassachusetts actions he "gave a surety bond wards about 40,000 additional shares, of the or bonds, in the sum of $500,000, to indem- New Jersey company to be transferred to the nify the company"; but there is nothing to Maine company, whereupon an agreement show that such bonds could be enforced by was entered into (as is alleged in the body this court, nor do the specific conditions of the present bill) between the New Jersey thereof appear; besides which, the amount company and the Maine company and two of them is manifestly inadequate to cover the men named Smith and Hoar, providing that company's claims. He alleges no fraud, mis- the Maine company, as the majority sharetake, surprise, or adventitious circumstances holder of the New Jersey company, should beyond his control that prevent the Massa- cause the latter company to realize upon the chusetts court from doing full justice. He suits against Bigelow and the Lewisohn esalleges no suppression of evidence, no ob- tate, and distribute the proceeds thereof as struction by the present defendant of any in the agreement provided; that Smith and effort of his to get justice in Massachusetts. Hoar declared themselves to be trustees of And he alleges no excuse for failing to set any fund obtained by virtue of this agreeup in the Massachusetts litigation the spe- ment, and issued certificates of interest cial matters that he here relies upon, nor for known as trust receipts, wbich are sold upon waiting until five years have gone by, and the public markets, the holders thereof not a decision has been rendered against him being in any substantial part the holders of there, before setting up his special matters shares of the Maine company or holders of here. Ostensibly his appeal is to the public shares of the New Jersey company. Compolicy of New Jersey, in certain respects plainant alleges that the holders of these presently to be mentioned. But a large part trust receipts are the persons ultimately enof the efforts of his counsel have been ad- titled to the moneys to be paid by the Maine dressed to convincing me that the Supreme company to Smith and Hoar as trustees, and Judicial Court of Massachusetts, and Jus- that the prosecution of the suits in question tice Sheldon, the trial judge, have improperly is not being had for the purpose of benefiting determined the questions of law and of fact the New Jersey Company, but for the purpresented to them. The arguments to this pose of realizing the largest sum possible effect are not in the least convincing; but on the trust certificates; that the buying if they were, I take it that I have no legiti- and selling of such certificates constitutes mate concern with the merits of the contro- the trading in a lawsuit, and that the proversy as joined in Massachusetts. The no
ceeds of any recovery in the actions will not tion is intolerable that this court should, go to any persons who were originally interdirectly or by indirection, assume any super- ested in the New Jersey company, nor, so visory jurisdiction over the courts of Massa- far as 14/15ths are concerned will they go chusetts.
to the New Jersey company, but will go to Upon the questions of alleged state policy strangers to the transaction who have purthe query at once arises whether Mr. Bige- chased the trust receipts. Annexed to the low, a citizen and resident of the common- bill, and by reference made a part of it, are wealth of Massachusetts, is entitled to in- a copy of the agreement referred to, and a voke in his protection any rule of public pol- copy of one of the trust receipts. Where icy that is local to New Jersey. See Bentley these differ from the construction placed upv. Whittemore, 19 N. J. Eq. 462, 469, 470, on them in the bill, the documents themselves 97 Am. Dec. 671; Flagg v. Baldwin, 38 N. J. must of course control. It thus appears that Eq. 219, 225, 48 Am. Rep. 308; Recvr. of the New Jersey company is not at all a party State Bank v. First Nat. Bank, 34 N. J. Eq. to these transactions. The agreement is dat450, 454; Moore v. Bonnell, 31 N. J. Law, ed, January 15, 1904, and is made between 90; Barnett v. Kinney, 147 U. S. 476, 483, the Maine company, as a stockholder in the 13 Sup. Ct. 403, 37 L. Ed. 247. I have not New Jersey company, and Smith and Hoar, considered the point, preferring to rest my as trustees. It pledges the Maine company decision upon a broader ground.
to cause the New Jersey company to actively The first grounds of supposed public policy prosecute the claims against Bigelow and that are appealed to are, that the conduct Lewisohn in such manner as the trustees may of the suits in Massachusetts and in New request, and upon like request to make settle York by the Old Dominion Copper Mining & ment and adjustment of the claims; to cause Smelting Company is a speculation in a law- the New Jersey company, if and so far as suit, and that those suits are being conducted any moneys are realized from the claims, by what is called a "voting trust." The ar- to pay the expenses of the litigation, includgument to this effect is rested upon certain ing advances made by the trustees, and, after averments in the bill not as yet adverted to. providing for certain other disbursements, The bill alleges that, since the Massachusetts to distribute the surplus as a dividend among actions were begun, the owners of about its stockholders (that is, the stockholders of 100,000 out of the total 150,000 shares of the New Jersey Company), if it may lawstock of the New Jersey company caused a fully do so, and, if it cannot then lawfully Maine corporation to be formed known as make such dividend, to make the same as
mored. The Maine company agrees in other respects to use its reasonable efforts as a stockholder of the New Jersey company to carry out the agreement according to its true intent and purpose, and that if it ceases to be a majority stockholder in the New Jerses company it will make arrangements to bind the holders of a majority of the stock of the New Jersey company to carry out what the Maine company bas by this agree ment undertaken to do. The trust certificate simply certifies that the holder thereof is entitled to certain shares in the trust and to all the rights and benefits of a shareholder therein. • Plainly, therefore, what has happened is that, after the present defendant company began its actions against Mr. Bigelow in Massachusetts, another company, a corporation of Maine, being the holder of a large majority of the stock of the present company, made an agreement with trustees by wbich they undertook to sell, or to place in form to be sold, any dividend that may hereafter be declared by the defendant to its stockholders out of the proceeds of the suits against Bigelow and the Lewisohn estate. It is alleged in the bill that Mr. Bigelow is informed and believes that the voting power on the stock of the New Jersey company held by the Maine company has been (as to the matters referred to in the agreement between the Maine company, and Smith and Hoar) transferred to Smith and Hoar; but this does not amount to an averment that such is the fact (even if the fact were material), and nothing of that kind appears from the agreement.
To the argument of complainant's counsel, based upon the situation thus disclosed, there are several replies:
First. The trust agreement was made January 15, 1904, more than four years before the filing of the bill of complaint herein, and nearly four years before the filing by Mr. Bigelow of his final answers in the Massachusetts suits; it is not suggested that his knowledge of this agreement and of the situation resulting therefrom is newly acquired; nor is any reason given why, if it is of any concern in the controversy between Bigelow and the New Jersey company, it should not have been set up and relied upon in the Massachusetts suits.
Second. The New Jersey company is not a party to the agreement, either in a legal or in an equitable sense.
Tbird. The agreement was made not only after the New Jersey company's cause of action aga inst Bigelow and Lewisohn arose, but after suits thereon were commenced, and 60 cannot amount to a bar of the causes of action.
Fourth. Neither the law nor the policy of New Jersey prohibits what complainant is pleased to call a speculation in a lawsuit. In this state we have not adopted the Eng
Schomp v. Schenck, 40 N. J. Law, 195, 29 Am. Rep. 219; Bouvier v. Baltimore, etc., Ry. Co., 67 N. J. Law, 281, 291, 51 Atl. 781, 60 L. R. A. 750. And with us the assigument of choses in action has from an early day been encouraged. Sullivan v. Visconti, 68 N. J. Law, 543, 549, 53 Atl. 598; Id., 69 N. J. Law, 452, 55 Atl. 1133. An exception beIng the right of action for personal Injuries. Weller V. Jersey City, etc., St. Ry. Co., 68 N. J. Eq. 659, 662, 61 Atl. 459. Our law, therefore, would not 'prohibit the present defendant from thus assigning its right to recover from Bigelow and Lewisohn the moneys claimed to be due from them for breach of trust. And supposing this does not carry with it the right of individual stockholders to thus sell their anticipated participation in the moneys to be recovered, because such participation is contingent upon the declara. tion of a dividend out of the proceeds, yet in this state we recognize, in equity, assignments of contingent and expectant interests, provided they be made bona fide and for a valuable consideration (Bacon v. Bonham, 33 N. J. Eq. 614; Terney y. Wilson, 45 N. J. Law, 282, 285); an attempted assignment of an allowance of alimony to be paid in futuro being an exception, based on special grounds (Lynde v. Lynde, 64 N. J. Eq. 736, 750, 757, 52 Atl. 694, 58 L. R. A. 471, 97 Am. St. Rep. 692).
Fifth. In view of the nonadoption in this state of the laws against champerty and maintenance, and of the absence from our corporation act of any prohibition, I am unaware of anything in the policy of this state to prevent stockholders from agreeirg among themselves to aid the company in proper ways in its litigations against third parties, and to use their influence as stockholders to see that out of the proceeds of the litigation, if successful, the reasonable disbursements made by the stockholders in the company's behalf shall be refunded, and a special dividend made of the net proceeds, if and when that can lawfully be done.
Sixth. But if the New Jersey company (the present defendant) were a party to the Smith and Hoar agreement, and if that agreement were contrary to public policy. I do not see how that benefits the present complainant. The proper result is that it ought to be nullified, not that the company should go without remedy against a third party who defrauded it before the void agreement was made.
Seventh. If Mr. Bigelow desires to uphold the supposed public policy of New Jersey, in the respect that this agreement violates it, he can easily do so by paying to the New Jersey Company what he owes to it, disre garding the claims of the holders of the trust certificates.
Eighth. There is nothing in the nature of a voting trust. Our corporation act recogniz es that corporate stock may be placed in