
    Zara Powers, compl’t. vs. Thomas Heery, def’t.
    _ . In Equity.
    
    Art injunction may issue to restrain trespass, where irreparable injury would follow its denial; as where defendant is insolvent.
    33ut it seems, that it will not be granted, where the title is in dispute.
    &n& -where the answer set forth, jhat there -was an actual adverse possession by defendant, at ¿the time of the purchase of the'land by complainant, the injunction was refused.
   my BOBEBT M. CMAR&TOIS, fudge.

THE bill in this cause alleges, that complainant, on the 30th August, 1834, purchased from Charles M. Goolshy, a certain tract of land, containing 500 acres, situate in the county of Bryan, and State of Georgia: that said tract is entirely worthless and valueless, save on account of the timber and wood growing thereon: that Thomas Heery, the defendant, who owns, or pretends to own land, in the neighborhood of complainant’s tract, has entered upon such land of complainant, (not in the occupancy of any one,) and has cut a great quantity of timber, among which are forty cords of fire-wood, amounting in value to $160, and has carried off and converted the same to his own use, and has refused to restore the same, and continues to trespass upon such land, and to cut and carry away the timber thereon, and has declared his intention to take all the timber from said land: that the said Thomas Heery is insolvent, having taken the benefit of the “ Honest Debtors’ Act,” at the last term of the Superior Court of Chatham County, and is entirely irresponsible, to make good any waste he has committed, or may hereafter commit. The hill then prays for an injunction, account, and general relief

Although the practice of granting injunctions, in cases of trespass, is an innovation upon the ancient rule, yet looking to the principle, apart from all authority, I can see nothing in justice or equity, which would forbid the exercise of such power. To deny it, where irreparable injury and damage would be the consequence of refusal, would seem to me to be unwarranted, by the principles upon which the system of Equity is founded. The decisions of late years furnish numerous instances, where the writ has been granted to restrain trespass, where irreparable injury would follow its denial. (Hanson vs. Gardiner, 7 Ves. 304. Earl Cowper vs. Baker, 17 Ves. 127. Crockford vs. Alexander, 15 Ves. 138. Shubrick vs. Guerard, 2 Dess. Rep. 616. Livingston vs. Livingston, 6 John. Ch. Rep. 497.) So it will be granted to prevent a multiplicity of suits. (6 John. C. Rep. 497; and see Jerome vs. Ross, 7 John. C. Rep. 330, et. seq.) Looking to the bill alone, I should have been inclined to award this injunction. The complainant has there made out a very strong case. He alleges that the defendant is wholly insolvent, and unable to respond to the damages which may be recovered against him, in a Court of law. The case of trespass, committed by a pauper, is one of those put by Mr. Chitty, in his great work on Practice, (1 Vol. 722, 3,) in which injunction ought to issue.

But I must refuse this injunction, upon the facts disclosed in the answer-. The defendant denies, under oath, that he has ever committed any trespass, or waste, upon any land of complainant, in the county of Bryan. He swears, that for a considerable time past, he has been engaged in cutting wood, upon two tracts of land, in Bryan county, to which he deduces a regular chain of title, commencing anterior to the right or grant of Goolsby, (the vendor of complainant, and who claims under a grant, issued by the State of Georgia, in July, 1832.) He states, that he, defendant, has claimed and held these tracts, in right of his children, under the titles which he deduces, and that under such claim and right, he has been in actual possession, ever since the 28th November, 1831, when the title was made to his children, by A. D’Lyon; and that at the time of the alleged sale by Goolsby to complainant, the said Goolsby was out of possession of said tract, and that there was then an adverse possession. If all this is true, (and for the present, I must assume it to be so,) the defendant has removed all claim, which the complainant could have to the intervention of the strong arm of this Court. Very few cases can be found, where an injunction has been granted in trespass, when the title was in dispute. Lord Elion had never known of such a case; (Norway vs. Rowe, 19 Ves. 146;) and Chancellor Kent, in Storm vs. Mann, (4 John. C. Rep. 31,) refused the injunction, in consequence of the same difficulty. No reasons are assigned for granting the injunction, in Shubrick vs. Guerard, (3 Des. Ch. Rep. 619,) and that cause stands unsupported, by previous or subsequent decisions. And most certainly, no case can be shewn, where such writ has issued in trespass, when the defendant has shown, by his answer, that the complainant has neither a legal nor equitable title, and where, if the statements of the answer are true, both complainant, and his vendor, have been brought within the penalties of the statute of maintenance, and the principles of the common law, applicable thereto. A purchaser of land, claiming under one, who was out of possession himself, might expect but little favor from a Court, either of Law or equity, when asking it against a person, who had been in actual adverse possession, at the time of the sale. The complainant’s counsel has felt the pressure of the answer, and has attempted to obviate it, by the suggestion, that it is not specific, that it does not furnish the boundaries of the land, thus claimed by defendant, and that the Court cannot ascertain, therefore, if it is the same locus in quo the trespass was committed, as alleged by complainant. That argument may be briefly answered, by the remark, that if it is the same land, the defendant has answered the complainant out of Court,” and if it is not the same land, then as defendant has sworn, that he has committed no trespass upon any land in Bryan county, owned by complainant, he has sworn away all the Equity of the bill.

M’Allister & Henry, for complainant—L.S. D’Lyon, contra.

Injunction refused.  