Tennessee Superior Court for Law and Equity, 1809

Hendricks v. Dallum

Tennessee Superior Court for Law and Equity · Decided May 6, 1809 · Overton

1 Tenn. 427

Counsel

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.

Opinion of the Court

Overton, J.

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 vs. 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. (a)

The other judges concurred.

(a)

See 3 Bro. C. C. 218. Hardin's R. 461 Wilson vs. Killcannon. Ante p. 201

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