Attorney General v. Tudor Ice Company.

suit by a stockholder or a creditor. The acts complained of are not shown to have injured or endangered any rights of the pub lic, or of any individual or other corporation; and cannot, upon any legal construction, be held to constitute a nuisance. It is expressly stated, in the report of the chief justice, that "it does not appear that any of the creditors of the company are in dan ger of losing by it, and there is no objection to its proceedings, except that they are not authorized by its act of incorporation and are alleged to be against public policy for that reason." No case is therefore made, upon which, according to the principles of equity jurisprudence and the practice of this court, an injunc tion should be issued upon an information in chancery.

In Attorney General v. Utica Insurance Co. 2 Johns. Ch. 371 Chancellor Kent, in a very able and elaborate judgment, after a thorough discussion of the question on principle, and an extensive examination of the earlier authorities, held that such an information could not be maintained to restrain an insurance company from exercising banking powers in violation of a statute of New York; but that the proper remedy was at law, by information in the nature of a quo warranto; and no appeal appears to have been taken from his decree. An information in the nature of a quo warranto was thereupon filed, and sustained by the supreme court of New York, and judgment rendered thereon that the corporation be ousted from the franchise which it had usurped. People v. Utica Insurance Co. 15 Johns. 358. Similar proceedings may be had at law in this Commonwealth in a proper case. Goddard v. Smithett, 3 Gray, 116, 122, 123. Attorney General v. Salem, 103 Mass. 138. Boston & Providence Railroad Co. v. Midland Railroad Co. 1 Gray, 310. Gen. Sts. c. 145, §§ 16–24.

One early English case of high authority, not cited by Chancellor Kent, nor at the argument of the present case, is so much in point as to be worth quoting in full. Upon a bill in equity, filed by the attorney general, at the relation of several freemen of the Weavers' Company, against the officers of that com pany, setting forth "that the defendants had been guilty of many breaches and violations of their charters, and had op 16

VOL. VIII.

Attorney General v. Tudor Ice Company.

pressed the freemen, &c., and mentioned some particulars; and for a discovery of the rest, and that they might be decreed for the future to observe the charters, and to have an account of the revenue of the corporation which the defendants had misspent, &c., was the end of the bill. To which the defendants demurred, because, as to part of the bill, it was to subject them to prosecutions at law, and to a quo warranto; and as to the other parts, the plaintiffs had remedy by mandamus, information, or otherwise, and not here. And of the same opinion," the report proceeds, was Lord Cowper, "who said it would usurp too much on the king's bench; and that he never heard of any precedent for such a case as this; and so allowed the demurrer." Attorney General v. Reynolds, 1 Eq. Cas. Ab. (3d ed.) 131.

The modern English cases, cited in support of this information, were of suits against public bodies or officers exceeding the powers conferred upon them by law, or against corporations vested with the power of eminent domain and doing acts which were deemed inconsistent with rights of the public.

Some of them were cases of misapplication of funds raised by taxation and held by municipal corporations or officers upon specific public trusts. Such were Attorney General v. Norwich, 16 Sim. 225, Attorney General v. Guardians of Poor of Southampton, 17 Sim. 6, and Attorney General v. Andrews, 2 Macn. & Gord. 225.

The hypothetical case, in which Lord Westbury, in Stockport District Waterworks v. Manchester, 9 Jur. (N. S.) 266, said that he should "probably not hesitate" to act upon the information of the attorney general, was of a suit to restrain the making of a contract between an aqueduct corporation and a city to carry water beyond the limits which the city was authorized by law to supply.

The passages cited from Liverpool v. Chorley Water Works Co. 2 De Gex, Macn. & Gord. 852, 860, and Ware v. Regent's Canal Co. 3 De Gex & Jones, 212, 228, were but dicta that an unauthorized diversion of water or flowing of land by an aque duct or canal corporation, without proof of actual or imminent injury to property, gave no right of suit to an individual, and

Attorney General v. Tudor Ice Company.

could only be checked on an application to the court by the attorney general.

The case of Attorney General v. Great Northern Railway Co. 4 De Gex & Smale, 75, was a clear case of nuisance, the unlawful obstruction of a public highway by a railroad. That of Attorney General v. Oxford, Worcester & Wolverhampton Railway Co. 2 Weekly Rep. 330, was the case of the opening of a railway line in violation of an order which an authorized public board had made upon the ground that it would be unsafe to the public.

The single case, in which an information has been sustained in an English court of chancery against a corporation for carrying on a business beyond its corporate powers, is Attorney General v. Great Northern Railway Co. 1 Drewry & Smale, 154, in which Vice Chancellor Kindersley in 1860 restrained a railway company from trading in coal in large quantities, upon the ground that there was danger that, if allowed to go on, it might get into its hands the coal trade of the whole district from or through which its railway ran, and thus acquire a monopoly injurious to the public. That case is evidently the foundation of the dictum of Vice Chancellor Wood, two years later, in Hare v. London & Northwestern Railway Co. 2 Johns. & Hem. 80, 111.

In Attorney General v. Mid Kent Railway Co. Law Rep. 3 Ch. 100, a mandatory injunction was granted upon the information of the attorney general to compel a railway company to construct a bridge over a public road, and with as gradual a slope as was required by a special clause in its charter; and the objection that the attorney general might have had an equal and complete remedy at law was stated by each of the lords justices as if it required no answer and afforded no ground for refusing to entertain jurisdiction in equity. It is often said, in the English books, that the king or his attorney general, suing in behalf of the public, has the election to sue in either of his courts, and may therefore enforce a legal right in the court of chancery. 1 Dan. Ch. Pract. (3d Am. ed.) 6, 7. Attorney General v. Galway, 1 Molloy, 95, 103. However that may be, by

Attorney General v. Tudor Ice Company.

our statutes the general equity jurisdiction of this court is limited to cases where there is no plain, adequate and complete remedy at law, as well in suits by the Commonwealth as in those brought by private persons. Gen. Sts. c. 113, § 2. Commonwealth v. Smith, 10 Allen, 448. Clouston v. Shearer, 99 Mass. 209, 211, and other cases there cited. The 38th of the former rules in chancery of this court (14 Gray, 360) by which the court adopted, as the outlines of its practice, the practice of the high court of chancery in England, so far as the same was not repugnant to the Constitution and laws of the Commonwealth, nor to those or such other rules as the court might from time to time make, cannot enlarge the jurisdiction of this court as defined by statute, and has been repealed by the new rules recently established. Rules of 1870, post, 555.

The only cases in which informations in equity in the name of the attorney general have been sustained by this court are of two classes. The one is of public nuisances, which affect or endanger the public safety or convenience, and require immediate judicial interposition, like obstructions of highways or navigable waters. District Attorney v. Lynn & Boston Railroad Co. 16 Gray, 242. Attorney General v. Cambridge, Ib. 247. Attorney General v. Boston Wharf Co. 12 Gray, 553. Rowe v. Granite Bridge Co. 21 Pick. 344, 347. The other is of trusts for charitable purposes, where the beneficiaries are BO numerous and indefinite that the breach of trust cannot be effectively redressed except by suit in behalf of the public. County Attorney v. May, 5 Cush. 336. Jackson v. Phillips, 14 Allen, 539, 579. Attorney General v. Garrison, 101 Mass. 223. Gen. Sts. c. 14, § 20. If there are any other cases to which this form of remedy is appropriate, that of a private trading corporation, whose proceedings are not shown to have injured or endangered any public or private rights, and are objected to solely upon the ground that they are not authorized by its act of incorporation and are therefore against public policy, is not one of them. Information dismissed.

Cronan v. Cotting.

DENNIS CRONAN VS. AMANDA C. COTTING.

In the provision of the bankrupt act of 1867, c. 176, § 33, excepting from the effect of a bankrup's discharge debts created by him while acting in any fiduciary character, the phrase "fiduciary character" does not include the obligation of a creditor, to whom the debtor delivered property with directions to sell it and apply in satisfaction of the debt so much of the proceeds as might be necessary for the purpose, to pay over to the debtor a balance of the proceeds of the sale remaining after such satisfaction; but, it seems, implies a fiduciary relation existing previously to or independently of the particular transaction from which the excepted debt arises.

CONTRACT for money had and received; to recover the balance of the proceeds of accepted bills of exchange delivered by the plaintiff to the defendant with directions to collect them and apply to the payment of debts owing from him to the estate of her husband, of which she was administratrix, so much of their proceeds as should be necessary for that purpose. Trial, and verdict for the plaintiff, in the superior court, before Brigham, J., who allowed exceptions which were argued and overruled in this court at March term 1868, as reported 99 Mass. 334.

After the argument of the exceptions, and before the judg ment overruling them was entered in the superior court, the defendant filed her petition in bankruptcy, under the bankrupt act of 1867, c. 176, in the district court of the United States for this district; and thereupon, on her motion, the superior court ordered a continuance of the case to await the result of the bankruptcy proceedings. In those proceedings a discharge was granted to her in due course of law; which discharge she then pleaded in bar of judgment in this action.

The question whether this plea was valid was submitted to the superior court on facts agreed substantially as above stated, and ruled in favor of the defendant; and the plaintiff appealed.

J. G. Abbott & B. Dean, for the plaintiff. 1. The bankrupt act of 1867, c. 176, provides in § 33, that a discharge under the act shall not release the bankrupt from debts created while he was "acting in any fiduciary character." The question is, whether the defendant's debt to the plaintiff falls within this exception.