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

apply to him 70 vacate the order. If the alleged
facts stated in the complaint were untrue II they
placed the intended action Of the Common Council
ana their motive with respect to II, in an aspect
grossly unjust to them. and If the allegations in the
complaint were fraud upon the Court the appro-
pirate course was TO show this by affidavit and move
for summary discharge Of the order and for such
action against the plaintiffs as such conduct would
make ii the duty Of the Court to take. The remarks
made by the Court in Noe Vs. Gibson, Z, page 5l3,
and in Russell vs.. East Anglican Railway Company,
L. and Eq. r. l0l, are applicable TO the duty Of the
defendants In this case In the latter case the Court
sad-" know of no act Of this court which may
not be questioned in proper form, and on proper
application but think it is not competent for any
to interfere with the possession of receiver TO
dsobey an Injunction or to disObey any 0therorder OF
the Court, on the ground that such orders were
improvidently made-they must take proper
course to question them, but while they exist they
must obey them; consider the rule TO be of such inn
portance to the interests Of the public to the peace
and safety of the public and to the administration OF
!he Justice OF this Court, that it is rule shall hold
to maintain its authority for the benefit Of the public
and it can only do that, have before said BY sup
porting its officers in the execution of the orders and
processes OF the Court and not allowing disobedience
and resistance to be the mode of questioning the pro-
prety Of the exercise Of the discretion OF this Court
p. 1l3. shall but briefly notice few of the many
other points argued or suggested. These resoli-
tons are in no proper sense of the term legislative
act; they are in substance and effect, contract by
which certain rights and privileges are granted to the
assOciatOrs upon certain terms and conditions, and
for stipulated compensation, to the exclusion Of all
others. 1t depends entirely upon their will whether
any new members shall be let into the association
and upon what terms. If any of the clauses of the
resolutions partake Of legislative bylaw charac
ter. they are few and unimportant, compared with
those which relate to matters purely OF contract
The Injunction order, by its fair meaning, prohibited
the Common Council from granting to Sharp and
others, the right or privilege, in any manner
thorizing them, to construct any railway in Broad.
was made, and the authority was given. Nothing
more was to be done, or could be done, by Them
1t only remained to be seen whether the grantees
would file their written acceptance agreeing to con-
form thereto This was Immediately filed. Assum-
ing that the act is revocable, it is enough to say
that instead Of there being purpose manifested to
revoke it, it was committed against the objections OF
the Mayor, in defiance Of the injunction and resolu
tons were passed rebuking the Judge who made the
order for attempting to restrain the doing Of the
act. think there is no just ground for saying that
the injunction did not prohibit the acts subsequently
done, and certainly none for saying as the case now
stands, that it was not understood being direct
and positive prohibition against doing what was in
fact done. If it be assumed that the resolutions
would confer no authority to take up the pavement
and construct railway and that all who should un
dertake to act under such authority would be wrong
doors, an injunction restraining them from doing
such acts would not be void. That is the only pro-
ceeding which could prevent the necessity of null
tplicty of suits and in actions sounding merely in
damages it is obvious that no adequate redress could
be obtained. 1t was only by the members of the
Common Council that the inhibited grant could be
made. 1t was by their acts only that the injunction
could be violated. corporation acts only by Its
officers and agents. When enjoined from doing any
thing, and the injunction is disobeyed, the disobe-
dience is not the act Of the intangible and impapa-
BILE statutory being bearing the corporate name but
Of the individuals by whom it acts. Process is
served on corporation by serving it some of its
principal officers, which service is good commence
ment Of suit against i, And an order which re-
strains corporation from doing any act restraints
every officer Of it from doing the thing prohibited
and If he does the act knowing that an order has
been made prohibiting it, he is chargeable with the
consequences Of deliberate violation Of order of
who performs the prohibited act. If the officers
cannot be punished, no one can. The idea Of Sc
questering the property of municipal corporation
for disObeying an order prohibiting it from doing
polite, with view to compensate those citizens for
the injuries thus inflicted is not Ineligible. 1t is
taxing them TO pay losses occasioned by breach Of
trust committed by those entrusted with exercising
| the taxing power for their benefit. First--Eyery
inhabitant Of the city is injured; and, by way
| of compens ation those who inflicted the injury
tax them to its full amount to remunerate them
for the loss. The statute provides that not only
"parties TO suits may be punished for any disc
bedience to any lawful order, decree, or process
of the Court, but that all other persons may
be. r. S., 534, 8. l, sub. /, 3, and 8. 1t Il
laid down in books of practice, that, as can in
/
to the party his servants workmen, and agents con-
sequently, If his servants, workmen agents, hay
ing had notice OF the injunction, do anything in-
hibted by it, they will be guilty Of contempt" l
only of equivalent import with the third subdivision
of the section of the statute above cited. 1t Is also
laid down as settled practice, that, 80 far as the
court is concerned it is enough that the party has
actually notice of it, although it may have not been
regularly served on him. Barb ch. pr $685. (notes
| !, m, n and o, and cases there cited) Mcneil W..
CARAT, l Young and Coll 81, is recent authority
to that effect. Matthews vs.. Smith, 3 Hare, 33l i,
is an authority that party obtaining the injunction
may be punished for publishing notice respect
ing it, which misrepresents the relative position
or character of any OF the parties to the cause.
In cr parte Van Sandan, Phillips, 445, publca-
ton speaking in less severe and disrespectfn terms
of the judgment Of the Court than the rebuling re-
solutions did Of the injunction order made in this
action, was characterized by Lord Cottenham as a
gross contempt Of the Court" Lord Hardwick, in
the case of the :. General Erening Post, 2 Atk.,
49, in enumerating the different kinds Of con-
scandalizing of the Court" Such an act falls
clearly within the spirit If not the very letter, Of
2R. s. sec. TO- sub. 6 Id. $50, sec. l, sub. 8 2
Daniels CHI. r, 1877 Price, 5ls Waterman,
not serving with the Injunction order copy of the
affidavit on which it is granted, is that defendant
may procure the order to be set aside for irregua
rity-2 Paige, 394. An injunction order regularly
| granted, OF when party mas knowledge, cannot be
treated as nullity, and violated with IMMUNITY, be-
fore the party obtaining it, in the exercise Of due
diligence, is able to serve it, after it has been
| served, because the service was not in all respects
perfectly regular, where there is pretence that
the person or party disobeying it did not have full
and accurate information Of the acts forbidden by it,
] am of the opinion that no objection, either of
foim or substance, has been presented which can
cxonerate Mr.. Sturtevant from the consequences of
deliberate and marked disobedience of the ORDER or
which would furnish respectable apology for the
Court for emitting to take such notice of il is
due to the interests of the public, and to proper
administration of justice in behalf of parties to SUITS
and Of the whole community.
FISHERIES or TIE DISTRICT or GLOUCESTER
The editor of the Gloucester Telegraph has taken
pains to collect the statistics of the fisheries of the
district of Gloucester Mass This district consists Of