dissenting:
I am unable to agree with that part of the opinion in. this case, “ that the Circuit Court, as a court of equity, has no jurisdiction beyond the territorial limits of its circuit,” and as it is remarked b.y Justice Westcott in the opinion, “ this is a question of great importance,” I will state my reasons in as brief a manner as possible. The case in 18 Wallace, 350, relied upon by the appellant in this case, has reference to the jurisdiction of a court of law, and a judgment of a court of law, and it is only necessary to refer to the case of *288Picquet vs. Swann, 5 Mason, 40, to show that it had refer, ence to a court of law, where Mr. Story uses this language: “ Even the. Court of King’s Bench in England, though a court of general jurisdiction, never imagined that it could serve process in Scotland, Ireland or the Colonies.” This is certainly true, and it is ■ equally as trué that the Court of King’s Bench is a court of common law, and never had any equity or chancery jurisdiction. The same remark will apply to the jurisdiction of county courts in this State. They are courts of limited jurisdiction, and have no equity or chancery jurisdiction or power whatever; and are confined to the county. But it cannot be denied that the courts of equity, both in England and America, have exercised jurisdiction outside of their territorial limits íor a considerable length of time; in fact we find them exercising this jurisdiction almost from their creation. In 2 Daniel’s Chancery practice, “It is not necessary in order to authorize the court to make an order for a Receiver that the property in respect to which he is to be appointed should be in England. A Receiver will be appointed here of property in the East Indies, in which case the Receiver must find sureties who are residents in England.” 2 S. and S., 453. “ A Receiver may also be appointed of estates in Ireland, but it seems that in such cases the recognizance of the record and his securities entered into and enrolled in that country.” 2 Daniel’s Ch. practice, 1425. “ It may also be mentioned that officers, in the nature of Receivers, are frequently appointed of plantations in the West Indies, but as a plantation in the West Indies partakes in some measure of the nature of a manufactory or trade, instead of a Receiver, the person appointed is usually called a manager.” 2 Daniels, 1424.
Kerr on Receivers at- page 259 : “ When the suit relates to property abroad, or in the colonies which partakes of the nature of a trade, it is competent for the court to appoint a manager.” Referring to L. R., 2 Ch., and pp. 212, 213, “ the *289manager is appointed in such cases, not for the -purpose of carrying on the trade, but to enable the court to give relief when the cause shall be heard, referring to Waters vs. Taylor, 15 Ves., 25 per Lord Elden ; Shepherd vs. Oxenford, 1 If. and J., 500.” “ Persons, for instance, have been appointed to manage landed property, to receive the rents and profits, and convert, get in and remit the proceeds of property and assetts, when such property has been situated in India, the West Indies, Demarara and the Brazils.” If err onRec., 260. “In conclusion,” says Mr. Daniel, 2 Vol., E., 1449, “it may be mentioned that the term manager or consignee, as distinguished from receiver, is sometimes used with respect to certain descriptions of property, as mines? collieries, or West India estates. There does not seem to be any substantial difference in the practice with respect to the officers thus designated, and by the interpretation clause of the order of the 16th of October, 1852, the word Receiver includes consignee and manager. It does not appear that this distinction has been made in this country, but that the order designates the duties of that officer. Then it clearly appears that in England a Receiver may be appointed over property outside the jurisdiction of the court. In this country it will be seen that the practice is not so uniform, but it will be seen that the principle is recognized by most of the States. It will appear by reference to the case of Booth vs. Clarke, 17 How., 322, the Supreme Court of the United States holds, that a Receiver appointed in the First Circuit of the State of New York could sue for and receive property outside of the State. The court in that case uses this language on page 536, condensed reports : “ No attempt was made, according to the chancery practice, to cause Clarke, by the attachment of his person under the injunction, to make an assignment of that claim for the payment of Camara’s judgment.” “ It cannot be said that Clarke had no property to assign, and that it was, therefore, unnecessary to attach him. That would make no difference, for *290whether with or without property he might have been compelled to make a general assignment, even though he had sworn that he had none.” It was so ruled in Chipman vs. Sabbatton, 7 Paige C. R., 47, and in Fitsburgh vs. Eveiingham, 6 Paige, 29.” “ There was a want of vigilance in this matter which does not make-any equity which he. may have in New York upon Clark’s property superior to that of Clark’s creditors, who are pursuing the funds in this district;” clearly showing that if the proper proceedings had been had the Receiver might have maintained his action, for the effects claimed in that suit, outside of the State of New York, not merely outside the jurisdiction of the territorial limits of the First Judicial Circuit. “When the appointment oí a Receiver has been perfected by filing of the report and security, the title to the personal property, covered by the Receivership, vests in the Receiver without any assignment or transfer from the person in possession.” 9 New York R., 142. “ But that is not so with the real property. That passes by force of the debtor’s own conveyance, which the court has power to compelí him to execute.” 19 New York R., 369 ; Thompson on Provisional Remedies, 480. It was held in Mitchell vs. Bunch, 2 Paige R., 615, that a Receiver might be appointed over property outside of the jurisdiction of the court. That, “ although the property of the defendant is beyond the territorial reach of the court, so that it can neither be sequestrated, nor taken in execution, the court does not lose its jurisdiction to that property, provided the person of the defendant is within the jurisdiction.” “By the ordinary proceedings, the defendant may be compelled either to bring the-property in dispute, or to which the complainant claims an equitable title, within the jurisdiction of the court, or execute such a conveyance or transfer thereof as will be sufficient to vest the legal title as well as the possession of the property, according to the lex loci rei sitce¿” the identical mode indicated by the Supreme Court of the United States *291in 17 How., 332. It will be seen that the same principles are laid down in Daniels Ch. Practice, 2 Vol., 1045, 1046, and the same doctrine is more fully set forth in Story’s Equity Jurisprudence, 743-4. “The proposition may, there; fore, be laid down in the most general form, that to entitle a court of equity to maintain a bill for the specific performance of a contract respecting land, it is not necessary that the land should be situated within the jurisdiction of the State or country where the suit is brought,” says Mr. Story, and with all his ingenuity and talent for research, he was only able to find two cases in this country where a contrary ruling had been made, and both of these were governed by •peculiar circumstances surrounding them. “The case in Pennsylvania it was decided 'that .the court had no jurisdiction over.a bill praying for an injunction against'the defendant residing in another county, but who was temporarily within the jurisdiction of the court, for erecting a nuisance which injured the plaintiffs’ land in that county; for to give complete remedy in such a case, a court must not only restrain and prevent a continuance of the nuisance, but must order its removal and give compensation in damages for the injury already caused, and for a court of equity to give this ample relief, the locus in quo must be within the absolute jurisdiction of the court.” 1 Parson’s Eq. R., 387. The case in North Carolina referred to — it appears that one of the joint executors resided in the State of Tennessee, and that the lands and those having the legal title to the same were in Tennessee, and only one of the executors before the court. It. was fully admitted by defendants’ counsel and held by the court, that where either the person or the subject matter of the suit was within the jurisdiction of the court, that the court had jurisdiction of the whole.
It appears from the pleadings that this suit was commenced under the Code, and that the statute repealing the Code uses this language:. “Section 11. That all suits already commenced, and all pleadings already in, shall not be affected *292by any of the provisions of this act, bat shall be proceeded in as if the act had not passed.” Act 1872, p. 18. It appears from the act that the jurisdiction of the court is not diminished. See Sec. 192. A Eeeeivér may be appointed, first, before judgment, on the application of either party, when he establishes an apparent right to the property which is the subject of the action, and which is in the possession of an adverse party, and the property or its rents and profits are in danger of being lost, or materially injured or impaired, except in cases where judgment upon failure may be had without application to the court.
Mr. Thompson, in his work on Provisional Eemedies, after copying the section, of which our Code is an exact copy, says: “ This section bears upon its face unmistakable evidence of a determination by the Legislature in its enactment between actions at law and suits in equity. The first and second branches of the section plainly apply to the latter class of actions exclusively, while the third is clearly intended to apply to actions at law, and is, therefore, an obvious enlargement of the power of the court to enjoin. The first two clauses are, in substance, a mere embodiment of the established equity principles as they existed before the Code, and cannot be construed to create new rights of action or give new remedies j nor are they, in any sense, an abridgement of the former jurisdiction of the court.” “The provisional injunction allowed by this section may be granted in every case where a temporary injunction would have been proper under the former practice.” Thompson on Provisional Remedies, p. 204, § 2. And he refers to the case of Rawlins against Joel, 13 N. Y., 488. Again the same author says, “ that every kind of property of such a nature that if, if legal, it might be taken in execution, may be, if equitable, put into the possession of a Eeceiver; and here the appointment of such a person has been said to be an equitable execution,” (page 483,) and referring to Edwards on Eeceivers in Equity,-under the former practice, p. G. “If the property *293is in the possession of a third person, claiming a right to retain it, the Receiver can proceed by suit against such person in the ordinary way, and thus try the right, or the plaintiff may' amend his complaint, making such third person a party, and the receivership extended to the property in his hands, so that the order for the delivery of the property may be binding upon him, and be enforced, if necessary, by process of contempt.” Thompson on Provisional Remedies, 483, referring to 8 Paige’s Reports, 390. Then it clearly appears that the powers of the court under the Code have not been abridged or made less. It appears from the pleadings in this suit that it is brought by the State of Florida .and the Trustees of the Internal Improvement Fund against •the Jacksonville, Pensacola and Mobile Railroad Company, a corporation created by the laws of Florida, authorizing it to construct a line of railway from Quincy, west, to the Alabama line, with the privilege of extending it to Mobile, Alabama. The act also authorizes said company to consolidate with any road, or part of road, completed from Quincy to Jacksonville, and to operate the whole line of railway from Jacksonville to Quincy, by consolidation or otherwise. The act, as amended, authorizes the Governor of the State to deliver to the President of the Jacksonville, Pensacola and Mobile Railroad Company the bonds of the State for all the road completed and in good running order, in exchange for •the like amount of bonds of the Jacksonville, Pensacola and Mobile Railroad Company, which bonds are to be a statutory lien upon the road and all its property. That the bonds of the State had been issued and delivered to the President .of the Jacksonville, Pensacola and Mobile Railroad Company to the amount of four million dollars, and as the same amount of bonds had been issued by said company and delivered to the State by the President of said company, but that one million of dollars of the- bonds so issued by the State were payable to the Florida Central Railroad Company, and the same amount of bonds delivered to the State *294by the President of the Jacksonville, Pensacola and Mobile Railroad Company, were issued by and under the seal of the-Florida Central Railroad Company ; that • the Florida Central Railroad formed part of the line of railway from Jacksonville to Quincy; that the whole line of road from Jacksonville to Chattahoochee was in possession of the Jacksonville, Pensacola and Mobile Railroad Company; that its principal office was in Jacksonville ; that all the business of' the corporation was transacted at that office; that at the commencement of this suit, Chase, Ambler and Flagg were operating the whole line under a lease from the Jacksonville, Pensacola and Mobile Railroad Company. It appears that this line of railway in operation extends entirely through the second and third circuits, and that about forty-nine miles of the railway, and the principal office, are within the fourth ciicuit, and all within the State of Florida ; that the process-had been served upon the President of the Jacksonville,. Pensacola and Mobile Railroad Company in the fourth circuit. Then, applying the principles of equity jurisdiction, and the jurisdiction under the Code, heretofore referred to, and the more clear and pointed doctrine'declared by the Supreme Court of the United States in 9 How., 390, a court of equity having obtained jurisdiction for one purpose, will proceed to grant full relief. “If the court of equity has jurisdiction of part of the subject matter and the defendant, it may .direct a public sale of lands lying out of its territorial jurisdiction, and compel the party to convey.” Lyman vs. Lyman, 2 Penn., 11; King vs. Tuscumbia, Courtland and Decatur Railroad Company, 7 L. I., 166. These.two-last authorities are from the State which Mr. Story relies on. Though equity cannot act directly on the land not within its-jurisdiction, it may compel the holder of the title who is a party before the court to give effect to a lien. Lewis vs.. Darling, 16 How., 1. Applying these well settled rules, I am compelled to hold that in this case, if a proper case had been made, and the proper proceedings had, that the court *295did have j urisdiction of the whole line of road, and did have authority to make any order that was necessary to protect the whole property until the rights of the parties could be determined. The property of the defendant may be sold in any county in the State under an execution issued upon a decree of the court, and it cannot be that a court of equity has not the power to protect any property which may be finally disposed of by it. If a court of equity has not the authority when it has possession of part of the subject matter, and the defendant is before it, to reach any property within the State, then that long arm; which is dwelt on so much by writers on Equity Jurisprudence, and so often used by courts of equity to prevent fraud and injury j has become very short in Florida. Suppose this suit was alone ■ against the Florida Central Railroad Company, when forty-nine miles of that road lie within the territorial limits- of the fourth circuit, and only eleven in' the third, can it be possible that that court would not have jurisdiction to protect the whole of the property in litigation until the rights of the parties are determined ? As the order appointing a Receiver, directing Greeley to take possession, and displacing Holland, was made without notice, and after the plaintiff had filed a bill izi aziother court, making .Holland a party, and asking for a Receiver, and that court having continued Holland in possession and amenable to that court, it is certainly without precedent, and for these reasons, the order must be revei'sed.
Tlie appointing a receiver to run a railroad is certainly a modern invention, and there is certainly nothing in the proceedings in this case that authorizes any such an appointment under any precedent which can be found.
I fully concur with all the other rulings of the court.