Cooper v. President of Dismal Swamp Canal Co., 6 N.C. 195, 2 Mur. 195 (1812)

July 1812 · Supreme Court of North Carolina

6 N.C. 195, 2 Mur. 195

Wells Cooper v. The President & Directors of the Dismal Swamp Canal Company, and others.

¡>From Chowan,

Under the acts of Virginia and North-Carolina, incorporating1 tlie Dismal Swamp Canal Company, the Courts of each State have equal jur sdie.tion, in all matters l'elathig to the concerns of the Company ; and the Court, in either ¡Mate, in which a suit shall be first properly instituted, ousts all other Courts of Jurisdiction, during the pending of such suit, and whilst the judgment, which maybe given therein, remains in force.

The shares of the Company are not liable to seisure and sale, under a fieri facias. They arc declared real estate by the acts, only to make them inheritable.

A bill, ini equity, will not lie against the officers of the Company, to compel them to register a conveyance of shares, The propel1 remedy is a mandamus.

in the year 1790, the States of North-Carolina and Virginia (by acts of their respective legislations,) incorporated a Company by the name of the Dismal Swamp Canal Company, and declared the shares of the Company to be real estate, and ihc proprietors thereof, tenants in common. The Canal lies partly in Virginia and partly in North-OaVolimi. The office of the President and Directors, for the purpose of registration and of performing their other corporate acts, is held in the town of Norfolk, in the State of Virginia. Wells Cooper, purchased certain shares in this Canal, at a Sheriff’s sale, under an execution issuing from the Superior Court of Law at Edcutou, ami directed to Camden County, where the proprietor then resided, and the Canal partly lies. He then brought a hill, among other purposes, to compel the President and Directors to register the deed executed to him, by the. Sheriff, for the shares which he had purchased ; and the case was sent to this Court upon the following questions : 1st, “ wkc-fher an execution issuing from a Court, in North-Carolina, can be levied on or affect the shares of the Compa-)iy.s> 2d. “ Whether the,, shares can be transferred imfjeP the acts of incorporation, by execution.” 3d, " Whether the Courts of North Carolina have jurisdiction in the present case.”

Ham, Judge,

delivered the opinion of the Court:— The last question submitted to this Court should be first considered j have the Courts of North-Caroiina jurisdiction of the present suit ? It is to be observed that the Canal lies partly in Virginia, and partly in this State, and that'the acts of A'-seiubly, incorporating, the Companies, give no preference to the Courts of either State. And it is to be further observed, that the office of President & Directors of the Company, has not by these acts been located. It therefore follows, that the Courts of each State have equal jurisdiction; but the Court in cither State, in which a suit shall be first property instituted, does, by such priority, oust all other Courts of jurisdiction, during the pendency of such suit, and whilst any judgment, which may be regularly given in such suit, remains in force.

But. the Complainant has not applied to the proper jurisdiction. He ought to have applied to a Court of Common Law, for a mandamus to compel the officers of the Company to register his deed, in case lie be entitled to have it registered.—(4 Burr. 1991. 1 Ld. Raym. 125. 1 Strange, 159. 2 Id. 1180. Com. Dig. mandamus, A. 3 Burr. 943. 2 Term. 2.) It is not necessary to discuss this point, as the first and second points, made in this case, must be decided against the Complainant. It is true that the acts of incorporation declare that the shares shall be considered real property, and it is also true that real property may be sold under writs of fieri facias, in this State. But it was not contemplated to make' such shares liable to debts, as real property. The object of the acts was, to give to shares the quality of'being inheritable. This idea is strengthened by a clause in the acts, which declares that there shall be no severance of a share. If the shares are to be considered real property, as to the payment of debts, they must be viewed as savouring of, and issuing from the land ; in which case they have locality; and part of the land lying in Virginia, is not within the jurisdiction of this Court, so that an execution could be levied on it; and we have just seen that that part which lies in this State, cannot be sold, because there can be no severance of a share. If the shares be considered as unconnected with the land, although, as to some purposes, they be considered as real estate, yet, as to executions, they are choses in action, and not the subject of leisure or sale. It may he aptly said of them, what Lord Ellenborough, in the case of Scott v. Scholey, (8 Term, 467,) said of equitable interests in terms for years, “that they had no locality attached to them, so as to render them more fitly the subject of execution and sale, in one country than in another. Let the bill be dismissed.