dissented and delivered the following opinion :
In determining any question which can properly arise upon this appeal, it is certainly not necessary to inquire what would llave been the equities' of these parties, and in what forum these equities must have been adjusted, if Samuel Jones, one of the appellants, had not become an applicant for the benefit ©four insolvent laws: Although if no such appl ication had been made, or if, notwithstanding such application, such of the insolvent’s creditors as had judgments or liens upon his property, were still at liberty to proceed, in our courts, as they might have proceeded, had no such application been made, the law ©r equity of their case might be very different, yet then, as well as now, we should be met, in limine, with (he question: Whence the power or jurisdiction of our court of chancery, to interfere, by its injunction, with the decrees of other equity courts, possessing in the premises ail its equity jurisdiction 1
“The maxim,” says chancellor Sanford, (1 Hopkins 79,) “that every right has' its remedy, and that where the law does not give redress, equity will afford relief, however just in theory, is subordinate to positive institutions and cannot be applied, either to subvert established rules of law,-or give to the court a jurisdiction hitherto unknown.” Again, p. 85: “The maxim which teaches, that a judge should amplify his own jurisdiction, has no place in our institutions. The utility of this court, (chancery,) so important in the general structure of our system, will be best consulted and preserved, by preserving its jurisdic*458tion within the limits that are now established.” Is the power to grant the injunction, which was granted in this case, within those limits ?
There was a time, when the jurisdiction of chancery to give relief, even after a judgment at law, was gravely questioned. It has, however, been long settled, both here and in England, that injunctions might be issued for such purpose. But can such relief be had in all cases ? Not if there was always in the case, a prompt and adequate remedy at law; nor for a matter of which the defendant might have availed himself at law, 1 John. Ch. Rep., 51. In Matthews vs. Joer, 9 Wheaton, it was said: “A question decided at law, cannot be reviewed in a court of equity, without tile suggestion of some equitable circumstance, of which the party could not avail himself at law. Were a court of equity, in a case of concurrent jurisdiction, to try a cause already tried at law, without the addition of any equitable circumstance,to give jurisdiction, it would act as an appellate court, to affirm or reverse a judgment already rendered, on the same circumstances by a competent tribunal.” See also 2 Hen. & Mumford, p. 146, and 1 Johnson’s Ch. Rep., p. 95.
But upon what ground can the chancery court, meddle with a decree and proceedings in a case in the county court, as a court of equity ? It must not be said that it possesses this power, because it always had concurrent jurisdiction with the county court, and having first got possession of this case, therefore it has a right to-act upon the whole subject? This is not sustained by the record. The bill upon which the assertion is made to rest, if indeed it was properly before us, was to prevent Jones from conveying to the other defendants therein named, any of his property, thereby giving an undue preference-to them: and asking, too, for a receiver. This surely is not the commencement of a suit, which impeaches a decree of another court, and asks the chancellor to take jurisdiction of a trust. But if, in truth, the first bill gave to the chancery court all the jurisdiction which we are told it thereby acquired, is a second injunction- the proper remedy for a breach of the first ? The complainants ought to have sought relief in the first suit, *459before the application of the insolvent, it must have all the by applying for an attachment of contempt, and not by a second original bill, which surely is no supplement to the first.
But even if every thing thus far insisted upon be admitted, of what advantage will it be to the appellees? It must be granted, that when two courts have concurrent jurisdiction, the plaintiff ought not at the same time to proceed in both courts, for the same thing. If he should, and the suits be pending in courts of common law, the defendant may plead in the second suit, the pendency of the former action, and thereby defeat the second action. In equity, however, it is quite different. If the complainant has two suits pending against the same defendant for the same thing, the court upon application will put him to his election, and oblige him to dismiss, not his first suit, hut the one or the other.
Equally groundless is the notion, that the complainants here have a right to object, that the defendants are the complainants in the county court. The complainant ought, indeed to confine himself to one court, but the defendants, if they have a cause of action, (especially if it be not against the same complainants, as is the case here,) may select any court, whether of law or equity, which has jurisdiction. Here the controversy in the county court, is not with the same persons, or for the same thing; the decree, in either case, would not be evidence in the other; the rights of no stranger to the suit would be prejudiced by such decree, but as this court has often said, such a decree is fraudulent and void, as to all such parties.
But the obyious answer to all that has been said in this case, upon the subject of concurrent jurisdiction, is, that the debtor has elected to ask the relief which our insolvent laws offered to him. Upon this application being made, and the trustees being appointed, the act of 1805, chap. 110, says, the county court shall direct the trustee to sell and convey the property conveyed to him, as they, (the county court,) shall think most for the advantage of the creditors, and the produce shall be distributed among the creditors, after satisfying all incumbrances, judgments and liens. For this court’s exposition of this law, see the case of Alexander vs. Ghiselin, 5 Gill, 138.
*460The appointment of permanent trustees, being made known to the chancellor, by the last bill of the appellees, there could exist no ground for the continuance of this injunction, and no reason for asking a continuance of it, as the complainants in the suit in the county court, could not proceed at law to execute their decree, and the court which passed it, and which, ip virtue of the debtor’s application, has the exclusive administration of all his assets, could of course hinder any proceedings under a ft. fa.
The complainants in their several bills of complaint, assume that the deed of trust, which several of Jones creditors obtained from him, may be impeached by others of the creditors. As yet however, none of the creditors whose right it is, have thought proper to impeach this deed. Surely no law gives to the chancellor the power ex officio, to declare it either void or valid. In answer to a remark once made to Lord Redesdale, (1 Sch. & Lef., 204,) that great injustice had been done to the complainant, he very correctly said: ££lt is not sufficient to sfipw that injustice has been done, but that it has been done under circumstances which authorise the court to interfere.”’ Who having the right to do it, has asked the chancery court to declare this deed of trust to be fraudulent ? A deed, though it be actually fraudulent as to creditors, can never be adjudged to be so, until it is impeached in a proper form, in a proper place, at a proper time, and by proper persons. A court has no more right to assume jurisdiction, than to decline to exercise that which the Constitution and laws give to it.
• Whenever this deed of trust is to be impeached, who are to impeach it? Unquestionably, this is among the duties of those whose duty it is to qollect, sue for and distribute the funds, answerable for the insolvent’s debts. Are they before us? Yes, in three distinct characters; and in all of these characters they pray the court to adjudge this deed to be, (not void, but) valid. Upon such a bill, in the absence of many of those, who are interested in the result, can the court entertain the question, and undertake to decide that the deed is fraudulent or valid ? Can these parties give to the court jurisdiction, which the law denies to it? As trustees appointed by the *461court, on the application of the insolvent, it seems to be their duty to impeach the deed, if it is to be impeached at all; but, as the trustees named in the deed of trust, it is their duty to attempt to uphold it. They have their own reasons, it would appear, for preferring to discharge the latter, and, of course, for violating the former duty; and they turn away from the court, by which they were appointed, to which alone, as trustees of the insolvent, they have to render any account, by which alone they may at any time be removed for misconduct, and pray a court, which can exercise no control over them, in that character, to take jurisdiction, and to counsel them in the execution ihe trust. Can this be endured ?
It must be seen, that I do not regard this case as presenting a mere question of meum or tuwm, in which the parties litigant, alone, have an interest. It may bo good or bad policy to giv,e to debtors, in failing circumstances, a right to prefer one creditor to another. This, however, is a question to be decided by the legislature, and the safety and welfare of this community require, that the judiciary be prevented from meddling with it. The Court of Appeals never can be a court deeply read in chancery law ? The utility of an appeal from chancery to that tribunal, consists, in a great measure in this, that thereby all the extension of its jurisdiction, under the pretence of carrying out some of those “maxims of equity .’ ’ which in olden times were adopted by that court, (and which will admit of an interpretation, which will enable it, to render other courts, and even the legislature, useless,) may not be extended. A distinguished chancellor of New York, speaking of a power attempted to be given to his court, and not more to be dreaded than this, remarks : — “Should this court take cognizance of these cases, they would form a chapter of jurisdiction far more ample than any one which it now possesses; and the assumption would be a bolder stride of power than was ever made by the English chancery in any age. ’ ’ The chancellor once had the power which it is thought he may exercise in this case, but it was deemed wise to take it from that officer, and confide it, we have been told by this court, to others exclusively. We must all be content to do as much of the State’s work, as it is *462made our duty to do, and to do no more. It is denied that the chancellor has any right to decide an)? of the questions, which, in this case, it seems, were put to him. At a proper time I opposed the doctrine, that the powers of the county court, confided to it by our insolvent laws, are to be exercised, subject to no right of appeal to this court. — (See ante, 164.) Such, however, is the law of this court, as far as its own decision can settle it; — and if this court has no appellate jurisdiction in such cases, I cannot admit that it has a right, in this indirect mode, to counsel, or it may be, instruct, the county court, what securities are good and what are void, what constitutes a part of the trust fund; what debts are to be paid by order of the county court.
It is a new idea to me, that in a case in which two courts possess co-ordinate jurisdiction, either has a right to determine, under any circumstances, whether the other can rightfully exercise jurisdiction.
It is possible that the law of this case might be in some respects different, if the trustees appointed by the court, and those named in the deed, had not been the same persons, and other views of the case might be taken, if these two classes of trustees could appear to a suit, the one as complainant, the other as defendants. But this case presents no opportunity for such discussions. They are the same persons; the property conveyed by the deed of trust is answerable, at all events, /or some of the debts due by the insolvent. If that court can be ousted of any portion of its exclusive jurisdiction, how can it be said that the legislature of Maryland is one of those departments of governments, with whose powers the judiciary cannot meddle? If we look at our insolvent system, we shall find that the county court is to limit the time for creditors to bring in their claims, to direct issues on contested claims, and is vested exclusively, with other powers, without which the trust fund, and amount of indebtedness, cannot be ascertained. Now if the county court possesses all those powers, and the chancery court may, by injunction, restrain that court in the exercise of them, because it is imagined to have obtained jurisdiction over the whole subject by reason of some proceeding instituted in it *463powers given to the county court, or it is in the situation in which it sometimes supposes other courts to be, and thereby furnishes itself with a pretext for interfering with other courts. It cannot afford complete and adequate relief. The power of the county court, to adjudge the decree to be void or valid, surely cannot be questioned in a court, which decided in the case of Carter and wife vs. Dennison, ante, 157, that its decision, be it right or wrong, could not be questioned elsewhere, — its decision, that the mortgaged premises were answerable for a portion and but a portion, of the debt, notwithstanding the transaction was tainted with usury.
The question on which the two courts below seem so widely to have differed, (which had jurisdiction first,) according to my understanding of chancery law, is one of very little importance. That court never dismisses a bill because of the pendency at the same time of another bill between the same or different parties. If there be found, two suits, both of which ought not to be pending at the same time, it may be said of that court, (it is otherwise in a court of common law,) that it never inquires which was first instituted. Most of the cases with which the books furnishes us, relate to cases, both of them pending in the same court; yet the defendant can never insist, that the one which was brought the last should be dismissed, The court of chancery never can put the complainant to his election, and insist that he dismiss a suit elsewhere, unless if the two suits were pending in that court, it could pass an order, that he elect which of the two suits he will dismiss. It can only enforce the order, by dismissing the suit in its own court, if the complainants refuses or omits to dismiss the suit pending elsewhere.
Much that has been said in this case might have been left unsaid, if it had not been taken for granted, that the mode of proceeding in equity was the same as that at, common law. The fact is, that chancery is constantly acting in direct opposition to this, supposed to be, one of its established rules of practice. In the case of a creditor’s bill, as soon as a decree has been made directing an account, all the creditors — those who had suits pending before the bill was filed, and those who instituted them after the filing of the bill — may be restrained from *464proceeding at law. 1 Story, sect. 549. So when a party to a suit at law, asks for a discovery to enable him to try the action- at law,- chancery will not only enable him to obtain the discovery, but will frequently go on to give him relief, and thus oust the court of law of its jurisdiction. 1 Story, sect. 64. As yet there is no law known in chancery like that which it is contended required the appellants, or any of them, to file in chancery the bill which the record tells us was filed- in the county court.
I can discover no ground for a continuance of this injunction. I certainly can discover no propriety in any case, of deciding any question which is not properly before the court.
With respect to very much that has been said in the course of this discussion, my answer to it is, “l am not called upon to say, that this is not a proper subject for the interposition of the legislature. The argument that justice requires some new remedy in these cases, is an argument addressed to- the legislature, and not to the courts of either law or equity.”