
    *Jacob Burnet v. The Corporation of Cincinnati.
    Equity may interpose by injunction to stay sale for taxes on city lots, assessed by tbe city council of Cincinnati.
    This ease was adjourned for decision here by the Supreme Court sitting in Hamilton county. It was a bill in chancery for an injunction to enjoin the sale by the marshal of the city of certain real estate, owned and possessed by the complainant, for a city assessment of a tax to improve the streets.
    The bill set out the title and possession of the complainant, and the nature and character of the assessment made by the city council, alleging that it had not been made in accordance with the charter and ordinances, but was illegal”and void, and prayed an injunction to stay the sale until the matters should be heard and adjudged of in equity. The injunction was allowed in the common pleas. The defendants demurred to the bill, which was dismissed pro forma, and brought to the Supreme Court by the -complainant on "appeal.
    Storer, in support of the demurrer:
    "VVe contend, first, that there is no matter of equity set forth in the bill which would authorize a court of chancery to take jurisdiction of the case.
    There certainly is no claim of title set up by the defendants; or any other person, adverse to the complainant’s right, which a-court of chancery can legally settle. -
    It is not necessary that a court of chancery should interfere t'o quiet contradictory titles, nor prevent a multiplication of suits: The complainant’s title is not questioned, neither does the matter in dispute involve any difficulties that could not be decided finally at law.
    The complainant’s possession is not disturbed, nor threatened to be disturbed. No act of trespass has been committed by defendants or their agents, or even threatened; and there is no irremediable injury anticipated to the- premises by the advertisement in the newspaper.
    
      The cases where the British chancellor has sustained jurisdiction, may be included in the classes already referred to.
    1. There must be an outstanding- adverse right, which several trials at law have proved inadequate to quiet.
    -2. *That the injury doing, or about to be done, can not be-repaired in damages; in other words, that the courts of law can not afford adequate relief for the acts complained of.
    It is not believed that section 9 of the chancery act changes the established rules of equity in the subject now under consideration.
    , 1. Because the claim referred to in that section as being set up must be an existing one, that extends to the exclusive or partial control of the estate; one that it is “in the power of some particular person to regulate as he may think fit; in fine, a claim that is the actual property of the person asserting it.”
    2. Because the section authorizes the court, if they decree for the complainant, to compel the defendant to release his right to-the property.
    3. Because the defendant is at liberty to disclaim; and it can not be contended there can be a disclaimer, unless there is some supposed right to be disclaimed.
    The extent of the incumbrance that could attach upon the property of complainant would be a tax due. No possession could be obtained unless by ejectment, and the legality of all the proceedings would bo open for discussion on such trial.
    If a court of chancery, in the first instance, could take cognizance of the legality of all assessments and levies; if, by an injunction, the hands of the collector, the auditor, or other officers, could be arrested, merely because there was some illegality in the-original tax list, I admit a great deal of trouble might be saved to the courts of law, but a very little revenue would accrue to the state. A deluge of suits would literally overwhelm the chancery docket, and every established principle of equity swept away in. the experiment.
    But there is a plain and adequate remedy at law for the complainant.
    By the act incorporating the city of Cincinnati, a council is. directed to be appointed, who are known by the name of the-president, recorder, and trustees. They have the whole legislative power of the corporation; they are authorized to pass ordinances,, assess taxes, make public improvements, etc. It is contended, then, that their acts can not be reviewed by a court of chaneery. Like all other inferior jurisdictions, their proceedings maybe examined on certiorari, and, if irregular or illegal, they may on that process be reversed.
    In Fitz. H. N. B. 247, it is said a writ of certiorari lies to the commissioners of the sewers, and the same remark is found in 1 Salk. 145, Anonymous; Commissioners of Sewers for Yorkshire, Str. 509.
    In Groenwelt v. Burwell, 1 Salk. 147, certiorari lies on a judgment given by the censors of a college, for'malpractice.
    It lies to “all inferior jurisdictions. Cross v. Smith et al., 1 Salk. 147. So to a jurisdiction created by.a private act of Parliament.” And to remove proceedings before commissioners of bankrupts. Ld. Raym. 580. See also divers other cases cited. 1 Salk. 148, 149.
    In Lawton v. Commissioners of Cambridge, 2 Caine, 181, Spencer, Judge, says, “It is a position beyond contradiction, that this court may award a certiorari, not only to inferior courts, but to persons invested by the legislature, with power to decide on the property or rights of the citizen, even in cases where they are authorized by law finally to hear and determine.
    And again, “the regularity of the proceedings is questioned, and most certainly the court can not waste jurisdiction, to inquire into it, when the freeholder shall apply to them, not to. be disturbed in his freehold but by proceedings conformable to law. 2 Caine, 182.
    The same point is decided in Wildy v. Washburn, 16 Johns. 50.
    In Leroy v. The Mayor, Aldermen, and Commonalty of the City of New York, the question as to the power of the Supreme Court to grant a certiorari, and the persons to whom it could be directed, was fully discussed. The same principle, now contended for by the defendants, was fully recognized, 20 Johns. 438, opinion of the court by Judge Woodworth.
    In the case referred to, the power of the corporation to make the assessment on the property; the manner of the assessment, in fact, a case precisely similar to the present, was considered by the court. And it is not a little singular, too, that the history of the case quoted, establishes the first point *taken by the defendants, that chancery will not take jurisdiction in such matters, as it is found that Kent, Chancellor, refused an injunction in the first instance. Vide same case, 4 Johns. Ch. 352. See also Mooers v. Smedley, 6 Johns. Ch. 30.
    In Rhulman and others v. Respublica in error, 5 Binney, 26, 27, the Supreme Court of Pennsylvania decide that a certiorari is the proper remedy in cases similarly circumstanced.
    T. Worthington and N. Wright, for complainant:
    1. The defendants insist that there is no right shown in the bill, to be relieved in equity.
    It is not necessary so examine, whether the common principles of equity, as recognized in England, would be sufficient to sustain this bill; although, on such examinations, it appears to us, the answer must clearly be in the affirmative; not particularly with reference to cases of application to stay waste trespasses, or repeated ejectment; but with reference to cases to prevent a sale of land, under a claim of authority or right; such as cases to stay sale, under a power in a mortgage, deed oí trust, will, etc. And in such cases, it has never been inquired, whether the title to be made by virtue of the sale will, or will not be indisputable. It sounds ill in the mouth of him, who attempts to sell another’s land, under color of law, to say that his sale will be a nullity. The right to sell, is the subject of inquiry, and the inquiry can be made only by application to chancery to prevent the sale.
    But the jurisdiction is clear, under our statute: “Any person having both the legal title to, and possession of lands, may institute a suit against any other person setting up a claim thereto." 22 Ohio L. 77.
    In this statute, the evil to be remedied, is this: So long as a man remains in possession, the common law gives no remedy against the person who claims his property. That claim may hang over him all his lifetime, clouding his title, and preventing a sale, or other proper enjoyment of his estate, if the claimant choose to lie by, and not bring his ejectment. This may be a ruinous injury to the true owner, and the statute provides the remedy.
    The evil is the same, whether the claimant asserts a legal or equitable right; or a mere power to sell; and these cases * would all be equally provided for, if the words of the statute include them. The words are, “ any person setting up a claim thereto.” It does not require argument to show that a person who claims a right to sell another’s land for his own use, or his own purposes, “ sets up a claim to it.”
    2. The next objection is, that there is remedy at law, by certiorari.
    
    To this we reply, that the order of the city council, for levying a tax, is a legislative act, and of course not subject to revision in a judicial tribunal.
    The provision of the amendment to the charter of the city, under which the council acted, is this:
    “ The city council shall be authorized to lay and collect a tax from the real estate of any square or section of the city, on the petition of not less than two-thirds of the owners thereof, for the improvement of the streets, lanes, and alleys, bounding or within the same, and for no other purpose whatsoever.” 17 Ohio L. 179, sec. 15.
    This clause authorizes the city council to order a tax, to be levied when a certain state of facts shall occur. Such an order would be a legislative act. A judicial act is a decision on the law as it stands, pronouncing what the law is; a legislative act is theintroduetion of a new rule of action. In the present case, no adjudication on the clause in the charter and the requisite petition, could result in the levying of a tax. It might be judicially decided that the petition was sufficient, and that a tax might legally be raised, but this would be nugatory until the tax was ordered by the city council. The order is entirely discretionary with the council, when once the state of fact arises which gives them authority to pass it; and it bears the same relation to the charter as a statute of the state does to a clause of the constitution, in pursuance of which it is enacted. Though the constitution should give the legislature special power to levy a tax in a special case, it would not be pretended that such tax could actually be raised without a statute on the subject. Most corporations are vested with some legislative powers, and they act within this sphere on similar principles.
    If this be a legislative act, it is clear a judicial tribunal can not review it.
    *They may inquire into it collaterally, and decide whether it be within the power given, or consistent with paramount laws; but to examine it on certiorari, with a view to reverse or affirm it, would be a wild anomaly.
    
      The cases referred to by defendants’ counsel all recognize this distinction. They are cases in which special powers are given to particular persons, to hear, examine, and decide; they are all cases of judicial acts, and so treated by the courts that received them on certiorari.
    
    In Lawton v. The Commissioners of Highways, 2 Caine, 182 (a case where the common pleas had express jurisdiction to review ■on appeal), the court rest their jurisdiction to grant a certiorari, on the ground that the commissioners “ were vested with power to decide on the rights .and property of the citizen.” The court say: “In cases, too, depending wholly on the discretion of persons authorized to do an act, the court hath refused to interfere; ” because its interference would be nugatory, the commissioners having a discretion “ to lay out, or refuse to lay out the road applied for.
    In Kinderhook v. Claw, 15 Johns. 538, in assigning the reason for sustaining the certiorari, the court say, “the duty imposed on the judges was strictly judicial.’'
    In Wildy v. Washburn, 16 Johns. 50, the court say, that they had before decided that the matter they are called to review, “ was strictly a judicial act.”
    Ruhlman v. Respublica, 5 Bin. 26, was a case of fining a road commissioner, by a justice of the peace, for a breach of duty, as much a judicial act as a sentence on an indictment, the question was, whether error or certiorari was the proper remedy.
    The case of Leroy v. The City of New York, 20 Johns. 430, affords a good illustration of the distinction we take. A statute of the state had provided for opening and making Canal street, and appointing commissioners to assess the expense upon the different owners of property, according to the benefit received. The certiorari was to inquire into the justice of this assessment. The principles on which the assessment was to be made, were contained in the statute. It was to be “just and equitable,” “in proportion to the advantage each should be deemed to acquire.” This assessment, therefore, was as much a judicial act, as a decree in ^chancery for a contribution on the same subject matter. The court say, “the power (on certiorari) will be exercised .when the duty to be performed, and the manner of executing it, is clearly pointed out by law,” distinctly excluding any legislation, or discretionary acts.
    
      In this case the statute of New York made all the necessary ■legislative provisions in detail, leaving for the corporation only such as were ministerial and judicial.
    .There is another answer to this objection of the defendants. The case made in the bill is, that a certain committee in the city council reported that the street should be graded, etc., at the expense of the city, which report was accepted, and the same ordered to be done. This, we contend, is no order levying a tax, and yet the marshal has proceeded to sell our property by virtue •of that order. We contend his proceedings are without any authority whatever, by color merely of law, and we have a right to prevent his proceedings because he acts without power from the council. A certiorari would merely revise the orders as they stand, but not reach the question whether there is or is not an order in existence to justify the proceedings of the marshal.
    It is argued that if chancery will interfere in this case, they must in every case of an illegal assessment of a tax. This does not follow. The argument would apply with exactly the same force to all the cases of certiorari which are cited. The books all •make a distinction between general legislative provisions, affecting the state generally and connected with its public revenues, and .the usual operations of government and those special local operations in which the corporation, or other party complained of, stands before a court of justice in the character óf a private individual. The state, acting by its agent in its general operations,, is hardly amenable to its judicial tribunals; and although the judicial acts of those agents might, in a proper case, be reviewed on certiorari, it would be difficult to find a case arising out of those operations which would afford any resemblance to the mixed proceedings of our municipal corporation.
    King v. King, 2 D. & E. 234, was a certiorari to remove all the proceedings of the assessment of the land tax by the *commissioners. The writ was quashed, and the only reason given was the public inconvenience which would result from sustaining it.
    In Ohio there would be still another.reason—the party assessed has his remedy by appeal to the board of equalization, but in the case now before the court there is no remedy provided.
    If we look into the books, many cases may be found of relief in •chancery similar to the present.
    Couch v. The Ulster and Orange Turnpike Company, 4 Johns. Ch. 26, was a bill filed to enjoin a sale of lands to satisfy an assessment for making a road, alleging sundry irregularities in making the assessment, to the injury of complainant. On motion to dissolve, the jurisdiction was sustained without hesitation; and though it was dissolved afterward, on the merits, upon answer, the right to relief was not doubted by the chancellor.
    Varick v. The City of New York, 4 Johns. Ch. 53, was an injunction to stay cutting a street through ground occupied and claimed by plaintiff till the title was tried at law.
    Gardner v. The Village of Newburg, 2 Johns. Ch. 162, was a bill to enjoin defendants from diverting a stream of water which they claimed a right to use, under an act of the legislature, authorizing works for supplying the village with water, and an injunction was allowed after investigation of the law.
    In Shand v. Aberdeen Canal Company, 2 Dow, 519, Lord Eldon said: “If the canal commissioners exceed their power, they become trespassers; but chancery will interfere to restrain them by injunction, and keep them strictly within the limits of their power.”
    Belknap v. Belknap, 2 Johns. Ch. 463, was a bill filed against inspectors appointed under a statute for draining a swamp, complaining of injustice and irregularity in their proceedings, and praying an injunction against carrying a ditch through complainant’s land, according to the survey and plan made under the provisions of the statute. “The question is,” says the chancellor, “ whether the act gives authority to interfere with the property of plaintiff in the manner proposed.” Again: “ If I am right in the construction of the act, the jurisdiction of the court and duty of exercising it, are equally manifest.” And the injunction was made perpetual.
    *It is unnecessary to pursue the investigation of decisions. They show conclusively that chancery will interfere generally to prevent the abuse of a special power created by statute, to the injury of the citizen.
    Stoker, in reply:
    It is asserted by the complainants that section 9 of the chancery act now in force gives jurisdiction to the court in the present case. The language of this section must be considered in connection with, the difficulties existing at the time the law was passed, that had a tendency to embarrass the sale of real estate and throw a cloud over the title. Perhaps the strict English rule may not apply in all its force when we give a construction to the provision in our statute; and a more extensive remedy, I will admit, is-granted than courts of equity will usually adopt, but the principle on which the remedy itself is founded is similar in its operation to that which authorizes the chancellor ordinarily to interfere' by injunction.
    The objects to be attained by the section referred to were to remove all adverse titles and pretenses of title from the estate of the real owner in possession. These incumbrances, let them be real or not, might be asserted against the freehold, and held for the mere purpose of prejudicing a sale. To compel those, then, who hold such claims, to exhibit them for legal adjudication, as well as to quiet the title of the real owner, the remedy alluded to, it is conceived, was given.
    But the claim or title, as I have before remarked, must actually exist; it can not be the expectation or apprehension of its existing in future. A person holding a mortgage that is satisfied, or that, is improperly obtained, or a judgment, the lien of which is lost by lapse of time or the act of the creditor, would very properly fall within the scope of the remedy, and be compelled in equity to release, or withhold forever, his pretended right. And in the last case it would not be contended that any part, other than the validity of the lien, could be inquired into, and certainly not the-regularity or the legality of the judgment.
    Here, if a lien exist, it is in consequence of the acts of a tribunal who had competent power to levy or assess a tax on *the prop- [82 erty. Whenever that power was executed the lien was perfect; and how can that power be examined, or questioned, on an application to release real property from a claim or title set up against it? Can the corporation re-examine their own proceedings; can they release their right to sell for the non-payment of the tax ?' Does not the right to release, does not the power of the court to decree a release of all claim, resolve itself, in the present case, into the-right of the corporation to vacate their own proceedings, and of the court to require them to do so ?
    The case of the Bank of the United States v. Schultz, 2 Ohio, 495, is confined to sale on executions, and goes full far enough,, it is believed, even for that purpose.
    
      In the present case I need only refer to the point assumed in .my opening argument to prove the injurious consequences that ■would result from sustaining the complainant’s bill. I will not •recapitulate, but I will venture to remark that the same argument that would authorize this court1 to vacate, in equity, the assessment already made by the corporation, would give the power to ■enjoin the corporation from making any assessment. The proceedings may be stayed at any period of their progress.
    The complainant quotes Couch v. Ulster and Orange Turnpike Co., 4 Johns. Ch. 26, to prove that the chancellor will take jurisdiction in cases similar to this. Unfortunately for the counsel, ■the point was not raised in that cause; nor could it be, because the object of granting the injunction was to give the owners of the land assessed the time allowed by law to make certain improvements. A sale was advertised before that time had expired, and the chancellor interfered. ’ No reference is made to the irregularity or illegality of the proceedings. Varick v. The Corporation of New York, 4 Johns. Ch. 53, proves nothing for the complain.ant. It was a bill filed to stay waste actually committed on the' premises of the complainant; and even here the chancellor granted the injunction only until the right of the corporation to occupy the premises as public ground could be tried at law.
    The case of Gardner v. The Village of Newburg, 2 Johns. Ch. 162, decides no point now under discussion. The power of the court in cases of private nuisance was sustained, *and the principle asserted that private property could not be converted to the use of the public without an adequate compensation first paid or secured to be paid.
    The case of Shand v. The Aberdeen Coal Company, quoted from 2 Dow, 691, is to be found cited in the opinion of Kent, in Belknap v. Belknap, 2 Johns. Ch. 471. The reports of Dow are not in this place, and the garbled quotations, though it amount to nothing, ought to pass for nothing, until the whole case is examined. In Belknap v. Belknap, just referred to, the chancellor interfei’ed on the ground of actual trespass and irreparable injury.
    It requires, in no small degree, the faculty of running parallels bo close that the lines themselves are scarcely discernible, when ■analogies are traced from authorities of the character quoted by the ■•complainant’s counsel. But it is not difficult to obviate the whole force of their objections by referring to the decisions of the same eminent chancellor directly on the point.
    In Le Roy v. The Corporation of New York, 4 Johns. Ch. 352, Kent decides, “that he would not interfere with, or set aside an assessment for the expense of a common sewer made by the commissioners under the direction of the.mayor, aldermen, etc., on-the ground of irregularity or want of discretion on the part of the assessors.” He gives several conclusive reasons why he should not interfere. Among the rest, he says, “the aid of this court might as well be asked to review every assessment of a land tax- or poor rate.” “I apprehend it would require,” he observes, “a-special provision by statute to authorize chancery to interfere with these assessments.” . In the course of his opinion he refers to Ex parte Croxall, 3 Atkyns, 639, and this court on an examination of that case will find the reasoning of Lord Hardwicke directly in-favor of the position taken by the present defendants.
    In Mooers v. Smedley, 6 Johns. Ch. 31, a bill was filed to restrain the collection of certain assessments made by the supervisor of a township, upon lands of individuals, to pay bounties on “wolf scalps” under the statute of New York. And Kent says, in his decision, “I can not find by any statute, or precedent, orpraetice, that it belongs to the jurisdiction of chancery, as a court of equity, to review or control *the determination of the supervisors in their examination and allowance of accounts, as chargeable against the county or'any of its towns, and in causing moneys so allowed to be raised and levied.” And again: “The review and correction of all errors, mistakes, and abuses, in the exercise of the powers of subordinate public jurisdictions, and in the official acts of public officers, belongs, in my opinion, exclusively, to the Supreme Court. It has always been made a matter of legal and not of equitable jurisdiction.”
    In answer to my position that the remedy of the complainant-was full, adequate, and perfect at law, the complainant’s counsel drew a nice distinction between judicial and legislative acts. It is said that the defendants acted as legislators and not as judges; admit there is such a distinction to be found iii the books, does the charter of the city, under which the defendants acted, sustain the point taken? The language of the law is (see section 15 of theamendatory act incorporating Cincinnati, passed February 5¿ 1819) : “ That the city council shall be, and is hereby authorized-' to lay and collect a tax from the real estate, etc., of any square, etc., on the petition of not less than two-thirds of the owners thereof,” etc. The original act of incorporation, a great part of which is still in force, passed January 10,1815, prescribes the general duties of the city or town council; they may levy taxes, license houses, appoint supervisors of the highways, or generally to pass such laws and ordinances as may be necessary to carry the powers granted by the act into full effect. Whenever, then, the .council directed a tax to be levied and assessed, it could not be a legislative act in the light in which the complainant’s counsel re.gard it. The corporation was bound to proceed whenever the proper petition was before them, and if they erred in judgment, they could not be controlled by the chancellor.
    It is said that every case I have quoted, to establish the remedy by certiorari, sanctions the distinction taken by the defendant’s counsel. This is the assertion; let us examine the cases. The commissioners of sewers are certainly subject to this writ, and ■among their powers is that of assessing taxes for the reparation ■of public works, vide Bacon, 212, 213, more especially the case there cited, Rex v. The Commissioners of White Chapel, Lev. 288. The *case referred to, Rex v.-, 1 Lord Raymond, 580, in Glamorganshire, expressly proves “that the King’s Bench will examine the proceedings of all jurisdictions created by act of Parliament. And if they, under pretense of such act, proceed to attach jurisdiction to themselves greater than the act warrants, this court will send a certiorari to them to the end that this court may see that they keep themselves within their jurisdiction.” And Holt, Chief Justice, further remarks, “that the examination -of such matters is more proper for the King’s Bench. As whether the act of Queen Elizabeth empowers the justice to raise money to mend sewers, and also orders made by the commissioners of •the sewers.” So far as these cases go, the analogy between the powers exercised by the persons to whom the certiorari was directed, and those assumed by the city council, in the case now under consideration, is very strong.
    Spencer, J., in Lawton v. The Comm’r of Cambridge, 2 Caine, 182, •observes, “ the necessity of a superintending power, to restrain and ■correct partialities and irregularities which may be committed by inferior officers, is so obvious and indispensable, that the court ought by no means to deny themselves a jurisdiction of such salutary influence.” In the case alluded to, the same exceptions in point of substance were taken, as to the order for laying out a road, as are taken to the assessment, etc., of the city council, nothing was* said here, of the distinction referred to in this case.
    In Welby v. Washburn, 16 Johns. 50, though tho appointment of the constable by the justices was'a judicial act, the court say, “whenever the rights of an individual are injured by persons clothed with authority to act, and who exercise that authority illegally, and to the injury of an individual, the person injured may have redress by certiorari."
    
    The case of Le Roy v. Mayor, etc., of New York, 20 Johns. 432, to my mind discloses no such distinction as that referred to by the opposite counsel; the same principle is recognized as had already been recognized by the Supreme Court of New York. To put the matter at rest, as to the power exercised by, as well as that granted to the commissioners, who made the valuation that was removed by certiorari, I would refer the court to 4 Johns. Ch. 352, where the chancellor refused an injunction in the same ease, that was afterward ^decided on certiorari. The law under which this assessment was made, is extracted, and to my apprehension, presents a perfectly parallel case. The injunction was here denied on the same ground that I have urged to dismiss the bill now before the court.
    It is urged by the opposite counsel, that a court of chancery will control the unauthorized acts of corporations and individuals; and the remark is true in many respects; but the legal remedy is equally effectual. To me, it appears perfectly immaterial in what the wrong consists, provided, as a general rule, the acts of the corporation are not subject to equity revision. If it is lawful to re-examine in this collateral manner every stage of the proceedings, the chancellor is -alone the head of the corporation; he is not merely exercising the ministerial power, but controls their every act and every duty. And let me ask, what is the present application, but to declare void the entire assessment of the tax; an assessment under which other property may have been sold, and upon which a large amount of taxes have been paid?
    A strong argument is used by Lord Holt, in 1 Raymond, 580, why a certiorari should not, except in extreme cases, be granted to remove the proceedings of the commissioners of sewers, “it is that by legal delay, the county might be inundated;” and Ashurst, Justice, holds similar language in King v. King, 2 Term, 204; he remarks that the poor might suffer “ if the rate should be removed and this even .on certiorari. In short, it appears to be the settled rule of the King’s Bench, to leave the party complaining to his-action against the officer who distrains for the tax, unless extreme necessity should require the interference of the court by certiorari.
    
    To conclude, it is clear that even the legal remedy referred to, is-adopted with great caution, where public interests are concerned,, such as tax assessments, etc.
   By the Court:

The billin this ease, represents, that under a proceeding altogether illegal and void, but nevertheless under legal color, the defendants-are about to sell a part of the real estate of the complainant, and prays the interference of the *court, in the exercise of its chancery powers, to restrain them by injunction. The demurrer, and the argument in support of it, admit the truth of the allegations, and deny that this court can aid the party. If this be a tenable position, it results that public officers, having authority t® operate upon the property of their fellow-citizens, must be permitted to proceed, however illegal, unjust, or oppressive their conduct may be. It follows, too, that the property of a citizen may be exposed to sale, under circumstances that render it impossible for the-parties to know whether a title can pass or not. Thus involving great hazard to all concerned, and perplexing th.e titles to real-estate, for no beneficial purpose to any person whatever. If such be the rule of the law, we-must so administer it. But nothing short of a series of repeated adjudications, would be sufficient to-demonstrate that the law is so settled.

The authorities which have been referred to, do not lead to the-conclusion insisted upon by the defendants. They all proceed upon-the principle, that in very many cases, this court may interpose to-prevent mischief, and to protect individuals in the enjoyment of their rights. Whore aid has been decreed, it has always arisen-from the circumstances of the particular case. And the confusion and seeming contradictions in the eases, are occasioned by the dicta -of the judges, and not by any conflietion in the principle decided.

In regard to real estate, it is well established that chancery may interpose by injunction, to prevent what is considered as destruction. But destruction in the sense used, does not mean annihilation. It means no more than that injury which greatly impairs its intrinsic value. In a city, the sale of part of a lot for assessments, may often be very destructive to the interest of the proprietor, though no title passed by such sale. A cloud would be cast upon the title, which litigation only could remove, and until removed, the }3roperty might be valueless to the owner, subject, too, during the period of litigation, to additional assessments and embarrassments.

When an assessment of a tax is made, and its legality disputed, the uncertainty attendant upon the final result puts the estate upon which it operates in imminent jeopardy. If no title pass by a sale, the party has remedy at law. He *can defend his possession, but if title do pass, he is remediless altogether. A mode, therefore, of deciding the question before any right is affected, is safest for all parties. It was upon this ground, the court entertained jurisdiction in the case of the Bank of the United States v. Schultz, from which, in principle, this case is not distinguishable.

The defendants concede that if a sale were made, this bill might be sustained under our statute. To sustain it now, is clearly within its letter. A claim is set up, not to enter in and enjoy under title, but to create a title under which another may so enter. Setting up a claim to dispose of the title, is “ setting up a claim thereto,” which are the terms employed in the statute. The case is clearly within the mischief intended to be remedied, as it is within the words of the law. The power to interpose, might be safely grounded upon the statute alone. But we think it stands upon the general principles that govern the court, with respect to injuries to which no other adequate remedy can be extended.

Consequences that might ensue in respect to the collection of revenue, furnish no. reason why the court should not interpose. The application for an injunction is addressed to the sound discretion of the judge who allows it, and there is no reason to apprehend that it will be allowed upon trivial grounds. The case of the Bank of the United States v. Osborn and others, 9 Wheat. 738, is a case directly in point, of enjoining the collection of a tax. That case was most earnestly litigated, and yet the counsel who resisted the injunction did not attempt to maintain that the jurisdiction could not be sustained, on the ground that it interfered with the collection of the revenue.

We overrule the demurrer, and send back the cause, at the suggestion of the defendants, for further proceedings.  