HILL v. BOWIE

HILL v. BOWIE. An injunction to stay waste pending an action at law is in nature of a writ of eslrepement. The restriction of such an injunction should in its commencement be coextensive with the plaintiff’s pretensions as set forth here or in his suit at law. But after the suit, which had been instituted here or at law to try the right, has been determined, then, according to the nature of that determination, the injunction maybe altogether dissolved, or he made perpetual only to the extent to which the plaintiff has recovered. This bill was filed on the 14th of December 1826, by Morgan Hill against Daniel Bowie. It states that the plaintiff was in possession of a part of a tract of land called Go-ammar^s Chance., to which he had a good title in fee simple; that the defendant had committed waste upon it by cutting down timber trees; and that he, this plaintiff, had brought an action of quare clausum fregit against the defendant to try the title to the land; which action was then depending. Whereupon the plaintiff prayed for an injunction to stay waste, &c. An injunction was granted as prayed. The defendant put in his answer, in which he admitted, that the plaintiff was entitled to a certain part of the tract of land as stated; but he averred, that a part of the same tract of land belonged to his, the defendant’s wife, the boundaries of which part had been well ascertained ; and the defendant denied, that he had committed any waste as charged by the bill.' • On the 11th of September 1828 the plaintiff filed a supplemental bill in which he alleged, that he had obtained a verdict and judgment in- his action of trespass; and thereupon prayed, that the injunction might be made perpetual. The defendant, by his answer to this supplemental bill, admitted, that the plaintiff had recovered a judgment a's stated; but averred, that although by the verdict it had been ascertained, that a part of the land, on which it appeared the defendant had trespassed, was the property of the plaintiff] yet it had not ascertained the claim and pretensions of the plaintiff to be as extensive as in his bill he had supposed. 25th February, 1829. [MAJORITY — Bland, Chancellor.] Bland, Chancellor. This case having been submitted on bill and answer, the proceedings were read and considered. An injunction of this description is in the nature, and in all respects performs the office of the ancient writ of estrepem.ent. It is an attendant upon the action at common law; and, as its inseparable ally, follows its fortunes, and must submit to its fate, The restriction of this kind of injunction, in its commencement, must, from its nature, be coextensive with the pretensions of the plaintiff as made in his bill in equity and action at common law. But if, in that action, the plaintiff fails to recover entirely according to his pretensions, the injunction can be perpetuated to the extent of his recovery only and no further; and upon the same principle, if the plaintiff fails in his action at law altogether, the injunction must be totally dissolved. In this case it does not distinctly appear, by the proceedings, how far the plaintiff has failed in sustaining his pretensions at law. The defendant by his answer, which is to be taken for true in this mode of submitting the case on bill and answer, avers that the judgment at law does not ascertain the plaintiff’s pretensions to be as extensive as in his bill it would appear he supposes. Hence although it must be taken for true, that there is some difference between the extent of the plaintiff’s pretensions, which he asked to have protected by an injunction, and his actual recovery, yet that difference is in no manner designated by this vague allegation of the defendant, or by any thing to be found in the proceedings. If the unequivocal extent of the future operation of this injunction be of the importance the parties now seem to consider it, the exact extent of the plaintiff’s pretensions, as established by his judgment at law, should have been clearly and distinctly shewn to this court to enable it to limit the injunction accordingly. But a judgment in the general terms that this appears to be, must, without some equally authentic evidence to the contrary, be taken as sufficiently shewing, that the injunction should continue to operate to the full extent of its original scope. Whereupon it is decreed, that the injunction heretofore granted in this case be and the same is hereby made perpetual; and that the said defendant pay unto the said plaintiff the costs of this suit to be taxed by the register. Duvall v. Waters, ante, 569.