United States vs. Mil. & St. Paul R. R. Co... United States vs. Schimer..... United States vs. U. S. Express Co.... V. Van Avery vs. Phoenix Ins. Co.... Walker vs. Derby .122 .128 .410, 420 .195 91 91 .193 W. 134 CASES ARGUED AND DETERMINED IN THE CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES. SEVENTH JUDICIAL CIRCUIT. GEORGE W. LAW vs. SAMUEL WILGEES. CIRCUIT COURT.-DISTRICT OF WISCONSIN.-MARCH, 1851. 1. RESTRAINING WASTE.-In Wisconsin, under the Revised Statutes of 1849, the holder of a certificate of sale of land on execution cannot maintain a bill to restrain waste. He has neither title nor right of possession until his deed is issued. 2. The laws for the sale of lands upon execution contain the whole sys tem, and the court cannot supply any supposed deficiencies. Isaac N. Stoddard, for plaintiff. I. The chancery jurisdiction to restrain waste has grown up in England, while the statute of Gloucester, 6 Edward I., chapter 13, provides another remedy. 1 Fonblanque's Equity, 31, and note; 3 Blackstone's Commentaries, 225. II. Complainant has as good a right to this remedy as a Law vs. Wilgees. mortgagee, and that they are entitled thereto, Farrant vs. Lovel, 3 Atkyns, 723; Brady vs. Waldron, 2 Johnson's Chancery R., 148. III. The power is discretionary with the court, and it is exercised in cases of waste, when no action at law would lie. Kane vs. Vanderburg, 1 Johnson's Chancery, 11; Eden on Injunctions, 201, 202. IV. The statute creates the right, even if it did not exist at common law, and this court may enforce it, if agreeable to general principles of equity. Equity does not get its jurisdiction from statutes; if they give a right it will administer it. Lorman vs. Clarke, 2 McLean, 568; Bodley vs. Taylor, 5 Cranch, 191: V. Courts issue injunctions ex equo et bono where a party is entitled to relief. Authority for their issuance does not proceed from statutes. Finch & Lynde, for defendant. MILLER, J.-The plaintiff alleges that he obtained judgment against this defendant, Samuel Wilgees, in the District Court of the United States, and thereupon issued an execution and levied on certain lands in his bill described, which he purchased at the sale of the marshal made by virtue of said writ, for the sum of $4,000, and that the said marshal gave him a certificate of sale according to law; that the said lands are pine-timbered lands, and that much of its value consists in the timber; and that he believes that if the pine and other trees should be felled, or cut down, or taken off of said lands, the said lands would not be worth as much by at least $2,000 as if left thereon, but if allowed to stand and remain on said lands under and pursuant to said certificate of sale, the same would be worth the said $4,000 and lawful interest from the time of said sale. The bill then charges the defendant with cutting a large amount of pine timber off these lands and thereby committing waste. |