
    
      Gabriel L. Ellis v. J. M. Commander.
    
    Where the bill alleged, that since the proceedings were instituted, the defendant had sold several negroes claimed as partnership property, and that the complainant had good reasons to believe that defendant intended to sell or remove, beyond the jurisdiction of the court, the remaining negroes, and the answer admitted the sale, and>did not deny the intention to sell the residue — the court held, that a writ of injunction had been properly granted, and an order made, by the commissioner, to restrain the defendant from selling or removing, and to compel him to give a bond for the forthcoming of the said property, to abide the final order of the court.
    It has long been settled that a bill well lies for tire specific delivery of slaves generally; therefore, when a plaintiff alleges property in himself, and that the slaves are withheld by another, he states a case giving jurisdiction to the court of Equity, and the court will administer justice by the adoption of its ordinary practice in analogous cases.
    It has been laid down as a general rule in equity, that where the plaintiff is entitled to relief, if that relief consists in restraining the commmission, or continuance, of some act of the defendant, the court administers it by means of a writ of injunction; and there is no doubtof its power to restrain the alienation of specific chattels, and to prevent the wasting of assets.
    Although an injunction will not be granted merely on the dissolution of a co-partnership, it will be granted where there is a violation of duty in tire partner, or a breach of contract.
    The Act of 1840 is remedial, and imposes no restriction on the commissioner, in the exercise of a sound discretion, in granting a specific injunction, which continues of force until dissolved by order of a Chancellor.
    Before the adoption of the Act of 1840, it had been decided, that on the coming in of an answer, the Chancellor may grant a new injunction, or may malee such other order on the bill and answer as they may require, and this court will not attempt to control his discretion, but upon plain and obvious mistake.
    
      Before Dtjnkin, Ch. at Georgetown.
    
    Upon the allegation of the amended bill, that since the pro' ceedings were instituted, the defendant had sold three negroes of property claimed as partnership property, and that the complainant had good reason to believe that he intended to sell the residue, or remove them beyond the jurisdiction of the court, the Commissioner made the following order:
    
      Copy of the Order made by the Commissioner.
    
    Upon hearing the bill and answer in the above case, and after hearing the complainant’s and defendant’s Solicitors, it is ordered that a writ of Injunction do issue, to restrain the defendant from selling or removing the negroes mentioned in the complainant’s bill, pursuant to the prayer thereof. It is further ordered that the defendant do give a bond for the forthcoming of the said property, to abide the final order of the Court.
    ' Signed, J. W. COACHMAN.
    On a motion to vacate this order, the following circuit decree was pronounced by
    Dunkxn, Ch. This is a motion to dissolve an injunction, granted by the Commissioner of Georgetown District, and to rescind an order requiring the defendant to enter into bond with security.
    The injunction was granted by the commissioner after the answer was filed and after hearing the counsel for the parties. It should only be rescinded when the Court is satisfied that the commissioner has erred in judgment. It is substantially admitted by the answer that the orignal agreement was for a partnership, and that, under that agreemeut or understanding, the complainant became jointly bound with the defendant, for the purchase of the slaves mentioned in the pleadings. There is a difference as to the terms of the association, but there is no dispute, or doubt, that by the original understanding, there was to be a joint ownership, either on equal or unequal terms. The answer relies on facts, from which an abandonment of this agreement is inferred, or which would render it inequitable in complainant to insist on the original agreement. This may or may not be so. The commissioner has supposed that it was premature to pass on the merits of this defence until a plenary hearing. The Court cannot say this was error, when the answer admits the original equities of the plaintiff, but insists on facts, or circumstances, in avoidance, the existence of which facts and circumstances do not depend on the answer, but are to be established aliunde.— The Court does not understand that this is such “a denial of all the circumstances upon which the equity is founded,” as would require the Court to dissolve the injunction.
    The injunction was granted, and the order for the bond made, upon the allegation of the amended bill that, since the proceedings was instituted, the defendant had sold three of the negroes, and that the complainant had good reason to believe that he intended to sell, or remove beyond the jurisdiction of the Court, the remaining negroes. The answer admits the sale of the three negroes, and the intention to sell is not denied. The order of the commissioner requires the defendant to give bond and security for the forthcoming of the property to abide the decree of the Court.
    It is insisted that neither a Chancellor nor commissioner has any such authority at this stage of the proceedings.— Under the act authorizing the commissioner to grant an injunction, I suppose he has the same power as the Chancellor would possess at chambers under the like circumstances.
    Injunctions are either common or special — By the former, a party is restrained from proceeding in a court of law — By the latter, he is prevented from inflicting an injury upon the property of another. In England the ordinary use of the special injunction is to prevent waste on real estate, although it is frequently applied in other cases, as to restrain the negotiation of bills of exchange, &c. The practice of Westminster Hall certainly does not warrant the demand of security — contempt of the injunction is punished by attachment, and if complainant can swear to the intention of the defendant to leave the kingdom, he may have a writ of Ne exeat. It is conceded that the practice of South Carolina has been different, when the property in slaves was the subject of controversy. Many cases may be found in the books of reports in which the defendant has been required to give security to abide the order of injunction for the forthcoming of the property. But it is said that the recently adjudicated case of Ramsay v. Joyse, McMull. p. 236, while it recognises the existence of the practice, declares its irregularity.
    The point was neither argued nor decided in that case; although I think the language used by the Chancellor had the sanction of all the court, and may very well warrant the inference deduced from it. But there are considerations which seem to me to render it expedient that the practice should not be abrogated without a deliberate adjudication on the subject.
    The peculiar condition of slave property has rendered it necessary to introduce new modes of proceeding for ascertaining and securing the rights of the owners.
    As early as 1749, in Peame v. Lisle, Amb. 75, Lord Hardwicke held that a bill would not lie for the specific delivery of a slave, anymore than for any other chattel. Such was held to be the rule in South Carolina, as late as Rees v. Parish 
      tj- Fairly, 1 McC. C. R. 56. But in 1841, it was finally-settled by the Court of Errors in Young v. Burton, McM. Eq. 256, that a bill well lies for the specific delivery of slaves generally, and then when a plaintiff alleges property in himself, and that the slaves are withheld by another, he states a case giving jurisdiction to the Court of Chancery. Previous to that time, the practice had been to apply to the ordinary tribunals by an action of trover, and the verdict was frequently the alternative for the value of the negroes, or their delivery to the plaintiff — but, at the commencement of the suit, the plaintiff could only hold the defendant to bail, and the bond was satisfied by the surrender of his person. To remedy this, and to secure to the plaintiff the forthcoming of the property, if his right should be established, the Legislature, in 1827, passed an Act authorizing any Judge, or the Clerk of the Court of Common Pleas, upon affidavits of property, made by the plaintiff, and that the chattel had been converted by the defendant, to make an order requiring the defendant to enter into bond, with sufficient security, for the production of the chattel sued for, to satisfy the plaintiff’s judgment — and such specified chattel is thereby declared liable to satisfy the plaintiff’s judgement, to the exclusion of all other creditors.
    Until the case of Young vs. Burton, the jurisdiction of the Court in relation to the property of slaves had been usually confined to the cases of life tenants and other trustees, under which circumstances security for the forthcoming of the property might be required, and was frequently ordered. When this Court affirmed its general jurisdiction in all cases where the right to slaves was in issue, its general authority to preserve propertypending litigation, might very well be exercised in the same manner. As was said by Judge Nott, in Robertson vs. Bingley, it is not the introduction of a new principle of practice, but the application of a familiar principle to a new class of cases.
    If no remedy of this kind can be afforded to a complainant, he is in a worse situation than a plaintiff in trover prior to the Act of 1827. He is not entitled to a writ of ne exeat, (sometimes called equitable bail,) unless he can swear to the intention of the defendant to leave the State. As in the present case the complainant can, conscientiously, make no such affidavit, he would be entitled to no security whatever, although the defendant admits that he has sold a portion of the negroes claimed by the plaintiff, and does not deny his intention to sell the residue. Assuming the general jurisdiction which a Court of Law exercises in actions of trover, I am not prepared to say that this Court should not conform as closely as may be to the practice-of that Court, provided it may be effected by the adoption of the ordinary practice of this Court in analogous cases.
    I have said this much in order to have the question submitted to the judgment of the Appeal Court, and the question settled.
    It is ordered, that the motion to reverse the judgment of Mr. Commissioner Coachman, be dismissed.
    
      Grounds of Appeal.
    
    1. Because the defendant has, in his answer, denied all the material facts or allegations, set forth in complainant’s bill, necessary to support an application for an injunction.
    2. Because the order of the Commissioner, granting the injunction and requiring security to prevent the removal of the negroes, is contrary to the practice and rules of procedure in this Court, and without warrant of Law.
    Wherefore the appellant moves that the said order be vacated.
    Mitchell, for the motion.
   Caldwell, Ch.

delivered the opinion of the Court.

It would be difficult, if not impossible, to enumerate all the instances in which special injunctions may be granted. The distinction between the writ of injunction, strictly so called, and an order in the nature of an injunction, has been disregarded in practice, and such orders, although not enforced by writ of injunction, have long since indiscriminately obtained the name of injunctions. It has been laid down as a general rule, in equity, that where the plaintiff is entitled to relief, if that relief consists in restraining the commission or continuance of some act of the defendant, the Court administers it by means of a writ of injunction. (2 Story E. J. p. 190, 191, 225, 193, 200.) There can be no doubt of its power to restrain the alienation, of specific chattels, and to prevent the wasting of assets, or other property, pending litigation. A partner will frequently be restrained from inter-meddling with the partnership effects, from accepting or negotiating bills in the partnership name, and if there be a necessity for it, a receiver will be appointed. (Harding vs. Glover, 18 Ves. 281; Charleton vs. Poulteur, 19 Ves. 146.) Although an injunction will not be granted merely on the ground of the dissolution of the partnership, it will be granted where there is a violation of duty in the partner, or a breach of contract. The principle on which the Court acts is, to wind up the business of the partnership, adjust the accounts, and divide the profits.

In the present case there appears to have been a peculiar propriety in the application of the remedy: the plaintiff could not take out a decree of ne exeat against tbe defendant, who had disposed of three of the slaves, since the filing of the original bill, and the answer did not deny his intention to sell the remaining slaves, alleged to belong to the partnership. We cannot perceive that the Commissioner has exceeded his power, in granting the injunction, under these circumstances.

The Act of 1840 is remedial, and imposes no restriction on his exercising a sound discretion in granting a special injunction, which continues of force until dissolved by order of a Chancellor. With such a salutary check, there is little danger of the power being abused. As to the practice, it is now too firmly established to be shaken, and precedents to warrant it, may be found extending back for more than fifty years. (Higginson et al. vs. Air et al. 1 Des. E. R. 428, 429.)

Before the adoption of the Act of 1840, the Court decided, in Hall vs. Jugnot, 1 Hill’s Ch. R. 43, that on the coming in of an answer, the Chancellor may grant a new injunction, or may make such other order on the bill and answer, as they may require, and this Court will not attempt to control his discretion, but upon plain and obvious mistake.

We can see no mistake as to the facts, and no misapplication of the law, in this case; the decree of the Chancellor is, therefore, affirmed, and the appeal dismissed.

Johnston, Ch. and Dunkin, Ch. concurred.

Harper, Ch. concurred in the result.

Appeal dismissed.  