
    Sloane v. Clauss.
    
      Defense to action before justice of peace — Involving equitable relief — Including injunction against disposal of family heirlooms — Such equitable relief may be granted by court of competent jurisdiction — Action before justice of peace may be restrained by injunction — Equitable relief — Injunction.
    When a full and adequate defense to an action- for the recovery of money only, before a justice of the peace, involves equitable relief, including an injunction, against the disposal of family relics and heirlooms, the loss of which could not be compensated in damages, the redemption of the property pledged or mortgaged and such discovery and accounting as may be necessary to determine the actual amount due between the parties, such equitable relief may be granted in a separate action in a court of competent jurisdiction and the prosecution of the action at law before the justice of the peace may be restrained by injunction.
    (Decided February 5, 1901.)
    Error to the Superior Court of Cincinnati.
    The defendant, Emil Clauss, brought a suit against the plaintiff in error before a justice of the peace, for the sum of $86.50 and interest thereon alleged to be due on three promissory notes. The plaintiff responded to this by filing the petition in this case in the superior court, and obtained thereby a temporary injunction against the prosecution of the- ease before the justice and against the disposal of property- of the plaintiff held in pawn by Clauss. After an amended petition had been filed, the superior court, on motion by the defendant, dissolved the temporary injunction. The superior court in general term affirmed the judgment dissolving the injunction; and the plaintiff in error now seelcs to.reverse the judgment of the superior court in special and general term.
    
      In substance the amended petition sets out the following facts: That the plaintiff and the defendant as a pawnbroker had within three years preceding the filing of the petition mutual running accounts, the plaintiff receiving in small amounts, at different times, $166 and pawning and pledging with defendant, at different times various articles of wearing apparel and jewelry; and that to the best of her knowledge she had repaid him more than $113, interest and principal, the interest being at unlawful rates. That plaintiff pawned to defendant a sealskin coat worth $250, and paid him $50 as the same became due as he claimed; but when she failed for two weeks to make the last regular payment demanded by him, he refused to accept when tendered, the amount owing by her in redemption of the sealskin coat, and as the plaintiff is informed sold the coat and converted all of the proceeds to his own use. That she pawned with defendant a diamond stud worth $100 which she afterwards redeemed, a gold ring worth $10, a watch worth $150, a watch worth $30, a gift from her father, all of which are in his possession. As a further security for said loans she mortgaged to defendant a folding bed worth $15, a combination secretary worth $50, but which is an heirloom in plaintiff’s family, two vases worth $150, with decorations by plaintiff’s deceased sister, and various other articles of the value of $235. That the defendant threatens to sell and dispose of the mortgaged articles together with the pawned articles, which if done would be an irreparable loss to her, the said articles being her necessary household furniture and wearing apparel, and some of them being priceless to her, for the loss of which she could not be compensated in damages. That on the second day of May, 1899, plaintiff tendered to defendant all the money he had before that time claimed .on said mortgage, which he refused to receive, and that on the following day he instituted the suit before the justice of the peace, and plaintiff avers that the notes for which plaintiff is sued are forgeries, and that she is unable to state the true condition of accounts existing between her and the defendant, and an account will be necessary to ascertain the same. That, instigated by the defendant as plaintiff believes and charges, two individuals have sought entrance into her home, being unable to give warrant or authority therefor when demanded, charging plaintiff with removal of what he termed “Clauss’ furniture.” Tftat defendant’s license as a pawnbroker has been revoked because of illegal and dishonest practices, that he is not the owner of realty, is taxed on $600 personalty and that he is a married man.
    The prayer of the petition is for an accounting; for an injunction against the prosecution of the action before the justice of the peace; for cancellation of the notes and the chattel mortgage; that plaintiff may be allowed to redeem all the property so pawned and mortgaged; that defendant be restrained from selling or disposing of the pawns now held by him; and that upon the accounting the plaintiff recover of the defendant the amount which may be found to be due her.
    
      David Stuart Hounshell, for plaintiff in error.
    Maxwell on Code Pleading, p. 501; Jones on Pledges, Sec. 559; Brown v. Runals, 14 Wis., 755; White M. R. R. v. Iron Company, 50 N. H., 57; Merrill v. Houghton, 51 N. H., 61 Hart v. Peneyck, 2 Johns Ch., 62; Blodgett v. Blodgett, 48 Vermont, 32; Con Ingham’s Appeal, 57 Penn. St., 474; Kent v. Westbrook, 1 Ves. Sr., 278; Flanders v. Chamberlain, 24 Mich., 306; Suber v. McClintock, 10 W. Va., 236; Pomeroy’s Eq. Jurisp., Secs. 1230-1231; Story’s Eq., Jurisp., Sec. 1032; Story on Bailments, 9 Ed., Sec. 345; Ibid, Sec. 287; also Secs. 308 to 311 inclusive, and notes to Sec. 308; Jones v. Smith, 2 Ves. Jr., 378; Cortelyou v. Laming, 2 Cai. Cas. Err., 200; Sec. 245, Story.
    As to equity jurisdiction the learned author in Minor’s Institutes, Vol. 4, part 2, page 1219, makes seven divisions — the first, the fourth, the sixth and the seventh are applicable to the case at bar, and of those in their order:
    “Wherever the matter of account stands upon equitable claims, or has equitable trusts attached to it. 1 Story’s Eq., Sec. 454.”
    Note — For example: In the case of Taylor v. Benham, 46 U. S. (5 How.), 232, it is said:
    * “Every person who receives money to be paid to another, or to be applied to a particular purpose, to which he does not apply it, is a trustee, and may be sued either at law for money had and received, or in equity as a trustee, for a breach of trust.’ ” Keaton v. Greenwood, 8 Ga., 97.
    Whenever the liability is that of a bailiff, receiver, factor or agent to his principal. 3 Bl. Com., 437; 1 Story’s Eq., 453; Berkshire v. Coons, 4 Leigh, 223.
    Wherever in matters of accounts growing out of privity of contract, there are mutual demands, and a fortiori when the accounts are intricate. 2 Story Eq., 459; Hunter v. Spotswood, 1 Wash., 146; Smith v. Marks, 2 Rand., 449; Hickman v. Stout, 2 Leigh, 6.
    Where the accounts are all on one side, but a discovery is sought, and is material to the relief. 1 Stor. Eq., See. 459; Lyons v. Miller, 6 Grat., 427; Sturtevant v. Good, 5 Leigh, 83; Blodgett v. Foster, 114 Mich., 688; Appeal of Electric Brush Co., 114 Pa. St., 374; Society of Shakers v. Watson, 37 U. S. App., 141; Johnson v. Price, 172 Pa. St., 427; 3 Pomeroy’s Eq. Jur., 2d Ed., Sec. 1421; Mitchell v. Manf. Co., 2d Stor., 648; the federal judiciary act of 1789.
    Under this provision the test of equitable jurisdiction is that which existed when the act was passed, unless subsequently changed by act of congress. Beach’s Mod. Eq. Pr., See. 12; McConihay v. Wright, 121 U. S., 201; Gould and Tucker’s Notes to Sec. 723, U. S. Rev. Stat., p. 201.
    This enactment of congress is merely declaratory of the existing law. Boyce v. Grundy, 28 U. S. (3d Peters), 210; Bispham’s Principles of Equity, 4th Ed., 21, and note.
    The language, “plain, adequate and complete remedy at law,” has been held to refer to the common law, and not to the statutes of the states. Gordon v. Howbert, 2 Sumner, 401; Dodge v. Woolsey, 59 U. S. (18 How.), 331; Wright v. Ellison, 68 U. S. (1 Wall.), 16; Grand Shute v. Winegar, 82 U. S. (15 Wall.), 355; Hungerford v. Sigerson, 61 U. S. (20 How.), 156; Oelrichs v. Spain, 82 U. S. (15 Wall.), 211; Garrison v. Memphis Ins. Co., 60 U. S. (19 How.), 312; Field’s Fed. Courts, 433, Note; Book 4, part 1, page 346, Minor’s Institutes; 3d Bl. Com., 163; Adams Eq., 222; 1 Stor. Eq., Sec. 442 et seq.; 1 Pomeroy’s Equity Jurisprudence, Sec. 157.
    A bill in equity may be sustained solely on the ground that it is the most convenient remedy. Conimaugh Gas Co. v. Jackson Co., 40 Atl. R., 1,000; 186 Pa. St., 443.
    
      A complainant who seeks discovery, and also to establish a trust, has not an adequate remedy at law Shainwald v. Davids, 69 Fed., 687; 75 Mich., 274; Rowland v. Entrekin, 27 Ohio St., 47; Fleming v. Kerkendall, 31 Ohio St., 568; Alsdorf v. Reed, 45 Ohio St., 653; Black v. Boyd, 50 Ohio St., 46; Bricker v. Elliott, 55 Ohio St., 577; Grapes v. Barbour, 58 Ohio St., 669; Smith v. National Bank, 60 U. S. App., 431.
    In the case at bar, is clear, therefore, that the equitable is the only complete adequate remedy; that it avoids circtiity of action; that it is the more speedv remedy — indeed, the only complete and satisfactory remedy.
    
      Malcolm G. Davies, for defendant in error.
    The only question is: Has the plaintiff in error a right to an injunction to prevent the defendant in error from prosecuting his action at law?
    We hold that she has a complete and adequate remedy at law. That the defendant, in an action at law, has no right to an injunction unless it is clearly manifest that justice can not be obtained otherwise.
    The plaintiff in error could have defended in the ae tion against her and set up whatever claim she had and if not satisfied with the judgment of the court, she could have appealed to the common pleas.
    The record shows that plaintiff in error does not attempt to get her rights in the case in which she was sued. Her counsel cites the court to numerous cases to .the effect that a suit in equity wrould iie, but he has no case cited that shows that a court of equity has the right to take a cause from a court of law or to enjoin proceeding in a court of law, where there was a complete and adequate remedy in that court. Story, Sec. No. 896, p. 83, Eq. Jur.
    
      Proceeding at law not enjoined when defense may be made at law, nor when appeal lies. High on Injunctions, Sec. 89.
    General doctrine denying relief by injunction against action at law where defense can be made. High on Injunctions, Sec. 93.
    The principal case tried in this court governing the contention of plaintiff in error is Chapman v. Lee. 45 Ohio St., 356.
   Davis, J.

The defendant in error calls to his aid the general rule that an injunction will not be granted against an action at law, where full defense may be made in such action. High on Injunctions, Secs. 89, 93. This familiar rule, however, is general but not universal; and we think that the case at bar comes within a distinctly marked exception, namely, where a pledge is the subject of controversy and it is a family relic, ornament, or heirloom having a special value to the owner, and for the loss of which damages in money would not be an adequate compensation. In such case a tender having been made of the amount previously claimed to be due, and refused, as alleged in this case, and it appearing that an accounting may be necessary to determine the state of running accounts between the parties; and that the sale or disposal of the pawned articles either by execution or otherwise, may cause an irreparable loss to the defendant in the action at law, no good reason appears why equitable relief should not be afforded. Under our code of civil procedure a provisional injunction could be had in an action for the recoyery of money only, in the court of common pleas or superior court of Cincinnati, and a full and adequate defense could be there made without resorting to a separate action.

But the case here is different. The action is in a court of limited jurisdiction. A justice of the peace is not invested with the power to enforce equitable rights or to consider equitable defenses; so that the matters of account, fraud and oppression, irreparable injury and redemption of pledged and mortgaged property alleged here could not lawfully be heard and determined in the justice’s court. If adequate relief could be had by appeal from the judgment of the justice of the peace, there might,, perhaps, "be no ground for this proceeding; but during the time which is required to transplant the case from the justice’s court into the court of common pleas the apprehended loss or injury may take place; because on the theory of the defendant in error, equity cannot interfere. By the necessity of the case, then, there could not be a full and adequate protection of the defendant’s right before the justice of the peace; and the defendant had the right to resort to a court of general jurisdiction for redemption of the specific property pledged and mortgaged, for such discovery and accounting as may be necessary to determine the actual amount due; and for such restraining order, or orders, as the nature of the case might require.

The judgments of the superior court in general term and special term are

Reversed,

Shauck, C. J., Williams, Bukket and Speae, JJ., concur.  