Opinion
May 1809.
Because jurisdiction in a matter of equity has been assumed by the law courts, the remedy in equity is not taken away. The jurisdiction of the two courts in such cases is concurrent. [See 1 Tenn. 8, and cases cited. And see Parrish v. Cummins, 11 H. 298, where this case is cited.]
Injunctions may be granted quia timet before or after suit at law. If after suit, and before plea (as in this case, the action being ejectment), the suit may proceed to issue, but must stop there. If after issue, it proceeds to judgment, and there stops, until the determination of the suit in equity. [See Matthews v. Douglass, Cooke, 136, Federal Court, and cases cited; 1 Tenn. 169.]
GRUNDY, for the defendant, said, the injunction was irregularly obtained, and therefore did not come within the meaning of the forty-seventh section of the Act of 1801, c. 6. In this case, the only ground relied on is, that the plaintiff at law and the defendant here had the youngest entry, though the oldest grant. Agreeably to our practice, the plaintiffs had their remedy at law.
It is a mere legal question, and there exists no ground for them to come into this court. He moved that the injunction might be set aside, as having been improvidently obtained. In ordinary cases he admitted that injunctions in ejectment and caveat causes could not be dissolved, but must await the final hearing.
In Equity. — An ejectment had been commenced at law, and before plea pleaded, an injunction was obtained.
Injunctions may be granted quia timet; may be obtained before or after suit. If after suit and before plea, the suit at law may proceed to issue, but, must stop there. If after issue, it proceeds to judgment and there stops until the determination of the suit in equity. Whether it be competent to this court in any ejectment or caveat cause to set aside an injunction as having been improvidently obtained, I will not undertake to say, it not being necessary. After the decision that a younger grant could be relied on in a court of law, it was soon determined in the case of Kerr v. Porter, in equity, that equity had jurisdiction in such cases as well as a court of law. The jurisdiction of the two courts was concurrent. The other judges concurred.
See 3 Bro. C. C. 218; Hardin, 461; Wilson v. Kilcannon, ante, p. 201.