The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-07

less they have violated the injunction in It's true egsE
sSey aey To- Be u" punished - what
ever may Be thought Of their Intentions and their
language. What, then, is the command OF tho in
Junction. What the corporate act which ita terms
prohibit II we read the complaint it is manifest that
the sole object Of it's prayer which the injunction ex-
actly followed was to prevent the adoption OF the
solution in relation to railroad in Broadway, which
1t alleged that the Common Council meant 70 recon
slider, and had determined to pass; but We have
some doubts whether the allegations IN tho CON-
plant can, with propriety, be invoked 70 govern
the construction Of the injunction, and IT ia.
therefore 70 the terms Of the injunction that IN con-
conine ourselves. The language OF the Injunction ~
clear and unambigu0us. The corporate act which It
prohbts, s that OF granting to Jacob Sharp and his
privilege Of laying down double or any other track
for railway In Broadway, between certain limits,
and II no such grant as a corporate act has been
made the injunction has not been violated-but the
fact that such grant has been made, Is undeniabes
IL is not only confessed by all, but ayowed and gl0
ried in by those who made it, and those who have
obtaineduT The resolution making the grant has beer
reconsidered and adopted, and in the very mode
which it prescribes has been accepted by the gram
tees and Jacob Sharp and his associates now claim
to possess by valid title, the very right liberty and
privilege, which the injunction, speaking the voice
said they should not be permitted to acquire. The
corporate act that the injunction prohibits, has been
performed and it therefore seems an aYront to COM
sense to That tns s nss nG, &C ose
by express words it had forbidden the passage OF
the resolution it was designed TO prevent we re.
peat the injunction has been violated, and the only
inquiry that remains, is by whom 1t has been vlo-
ated and who, assuming it to have been right
fully issued, are amenable to this Court Tor
their contempt Of its authority. lit is Idle
to speak Of its violation as merely corporate act,
for which member officer of the corporation Is.
or can be, liable. We have already shown that an
injunction may be properly directed to corporation
solely by its corporate name and that when 20 d.
rected it operates to restrain the personal action OF
every member Of the corporate body by whose as
sent or cooperation the corporate act that is for
hidden may be accomplished. In the case before u.s.
the injunction not only commanded the Board OF
the grant to Jacob Sharp and his associates which it
describes, but it commanded each Alderman and
each Assistant not to give his assent to any sucla
grant if proposed for his adoption.not to give his
assent to it for the purpose and with the intent OF
rendering it operative and effectual as corporate
act. The resolution adopted by the Commoe C0un-
Gil is the very grant that the injunction describes
and to this grant every tS s VINO vGsea Sr .n
a corporate act has given his assent. Every one OF
them therefore, who has thus assented, the concu-
sion is plain and irresistible has done the very act
that the order Of the Court commanded him not to
do, and by so doing has violated its mandate and
condemned its authority. And unless this be true
it follows that when an injunction, directed to
body consisting Of several persons, commands Them
not to perform joint act although all unite in per-
forming the act no one of them breaks the injunc-
tion-no one of them is liable to be punished. Two
partners intend by their joint act to make frau
duent transfer Of their whole partnership property;
suspecting their design, their creditors file COM
paint and obtain and serve an injunction, by which
The intended transfer the medtated fraud is strictly
forbidden The transfer is, however, made, the
fed, and the guilty partners rejoice in their impu-
nifty Neither Of them, it seems, can be attached,
for the valid reason that the fraudulent transfer was
the act of both, and therefore, the act of neither.
Let it not be said that the supposed case is not
analogous the analogy in truth perfect for it is
not at all affected or impaired by the circumstance
that the body to which, in the present case the in
junction was directed was corporation not part
nership The Injunction in this case commanded the
Common Council not to make certain grant to GER
tain persons The Common Council has made the
grant yet we are told that the injunction has not
been broken, Or if broken, has been broken by the
Common Council alone, the two boards forming the
body, and not at all by the individual members, by
whose concurrent votes the grant, as corporate act
was adopted and effected. In conclusion the whole
argument, it is manifest, depends upon the
truth Of the proposition with which we started,
namely that an Injunction directed to corporate
body is binding upon the individual conscience, and
restraints the individual action of each of its members
If this, proposition OF law is certainly true and
that it is cannot doubt, then this Injunction which,
m this case has plainly been violated by the Corpo
ration as body has just as plainly been violated by
The corporate act by which the violation was effected.
That assent was given by the member before US,
Oscar w. Sturtevant. He has, therefore, as an indi-
vdual, violated the injunction, and having thus been
guilty of the contempt with which he is charged, the
attachment moved for must be issued against him,
less the order of this Court which he has ds0beyed,
itself unlawful and void. 1t is upon this ground
alone that he has himself justified his disobedience,
and it is upon this ground alone that he be ex
empted from its punishment. Before we proceed ,.
however, to the discussion of the question whether
the order of this court from its total want of jur
dction, illegal and void, there some consde
rations, hitherto unnotced to which it seems expe-
dent to advert. Hitherto we have passed over in
silence an argument upon which the counsel for the
defendants seemed to lay peculiar stress
namely, that the injunction was not violated
at all by the mere adoption of the resolution
containing the grant to Jacob Sharp and
his associates, and consequently not violated by
those by whose votes the resolution was passed..
The adoption Of the resolution it was said, was not
grant, It was merely an inch0ate and intiatOry act,
which, but for the subsequent acceptance Of the
grantees, might have remained for ever Intellectual.
Until this acceptance was executed and filed. no.
grant was made, no authority, right, or privilege
given, and, consequently, until then, neither in its
terms nor in its spirit, was the injunction violated.
This acceptance, however was the act OF persons to
whom the injunction did not extend, and for whose
acts neither the corporation nor its members can
be made responsible. Notwithstanding the appa-
rent confidence with which this argument was urged,
we find it difficult to believe that it seriously
meant W De pressed upon our auOpEOn, since IT,
could hardly have escaped the counsel that, with
equal propriety and fprce might the same argument
be urged in every case in which grant, transfer,
or any disposition OF property whatever is forbidden
to be made either by q corporation, partnership.
an individual In no case is grant efcctual by
the mere will and act Of the grantor. In every case
it depends for its ultimate validity upon the assent
and acceptance Of the grantee. Hence, il the argu
ment is valid it follows that an Injunction which is
meant to restrain a fraudulent or Illegal grant,
addressed only to the grantor, may be disIegarded
in all cases. with entire mpUnity. You cannot punish
the grantor as fraudulent Trustee or debtor, be-
cause the grant which he executed and delivere
might have been rejected by the grantee and but for
his acceptance would have beea wholly Intellectual
fon cannot punish the grantee, for he was not named
in the injunction. The reply to tha argument in the
eases supposed is exactly that Dbi Il must be given
in the present. The fraudulent Trustee debtor is
forbidden to make the grant with The intent that it
no in H..