New-York tribune., 1867-09-28
SUPERIOR COURT SPECIAL TERM-Befcre Judge
MC(UNN.
PRACTICE ON INJUNCTION.

Francis Schneiler agt. Herman Bcpesh.
By MCCUNN, 1.-The rule is that where
paiitifs equities are denied the Injunction should DO
dissolved. Sometimes there are reasons gong 10 vary
hs rule but this case presents none OF those reasons
On tbe contrary the dcpostons and afldavits tho
part of the defendant are overwhelming ana me prONs
ons of the Revised Statutes does authorize the -
function TO he restrained after the effects Of the complaint
is denied q T. s.. ls9 Manchester agt Day, 6th P 2so;
tbe ALLEGATIONS that defendants are unable 10 respond in
damages even true. would not justify the interference
of tine Court by injunction NalsOn agt hnhleI, J9i m
c. Rep 1881. The rule is that no injunction shouln ns
granted where defendant respond in damages iud
son and Del Canal Co. ag n. y aud Eric X X Co.. YIN
n s9s am well aware that granting refusing an in
function rests I'm fhe sound discretion OF the Court to be
exercised according 10 the circumstances OF Ie cas- anu
this with prevent party during the Pchdeney
of the action from making vexatous disposition oI inc
property question. and tending to render the final
Judgment Intellectual. -
Bnt the right of granting inluncons should be exer.
clsed with great caution and should not be exercised
where the legal right disputed and unless there is the
strongest probability that the will ultimately de-
eide that the plaintiff is entitled to the relief demanded
the complaint and unless II also appears that the prop
is in danger Of being lost or materially INJURED or @
paired before full Investigation ana hnal
of tho Handton agt Tho Accessory Transit Co..
Abb. 7. r.. 255). -.,- -.
appear from the complaint that the act sought to be re-
strained is unlawful and thatf allowed to he com
and even if the awfuness is LEFT doubt the Court Will
refuse the relief cd StOrys Equity, Jur see '7l row
tins complainant does not charge the ac Is o deIchGabt
10 he unw u and as have stated before. the facts set
forth in Che aidaVits OF defendants arg ooIor"heInh
that must dissolve the injunction with costs
NoN-IsIPRISONMENT FOR DEBT - IMPORTANT
OPINION OF SECOND ARREST IN SUIT.
In ReaTre Of james johnson.
This is pl proceeding under the non -lmpTls0n-
ment act The defendant was brought before me ny Nr
tuo of warrant ls.ied under the act of ll commonly
known as the swem act" This discharge is moved
the ground that on the original aclJu III ihc supreme
Court which action IL yet pending the defendant had
been arrested mosne process for the sane caus -
those alleged in the affidavit upon Wnch ths warrant
was granted and that was held TO bail in the sum OF
SIS OOO that defendant cannot arrested second
time in action he should be discharged by mo
Court The remedy given by the laws III lSi and upon
which defendant is before me WIS gwen IN Leu OF
the remedy taken away. OF arrest IN the one case on
process, and III the other ON hhal process spear
agt Wardel COM Moreover u must appear before the
warrant IL granted that defendant is not, cannot be
arrested and imprisoned In the action on meshe process
Hth " V Stat at Large; Edmonds. Sec. 3. p 4G5 In
deed the plaintiff to be aware OF the fatt that IL
not only in arrest can be had that such
snweil warrant call it, ISSUE for he has sworn
In his ad0 Wit upon which the warrant S based tha de
fendant cannot be arrested or imprisoned In the action
thereby admitting that If defendant could have been ar
rested process this warrant would not e Jus
tce Wright says III his able opinion IN The case above
cited, il is THE nOnmpT1sOnineit HCtl remedy given
by statute 10 reach property where ordinary eNec
ton fails, and where no arrest on mne or nnM process
can be had" The very created for the purpose
OF enabling parties 10 reach The properly OF ira1auien
debtor where he could not be oherwc arrested IN the
convinced that the intent OF the act ot 1851 after
abolsbing imprsonneut for debt I'm suite arising upon
contract to provide a remedy for those Immediately
affected by such abOlishmen through which they might
reach the fraudulent debtors property Hnt this plain
prsNnment debt and the best evidence Of that fact
that he has selected his remedy ana has chosen 10 arrest
the Supreme Court. Therefore hold that the choice ~
plaintiff in selecting the romed OF arrest under thc I15h
aud 19h section ot the code Gcprscs him as present ~
the remedy under the nOu-lnprsoAmcut act 4 very
nice question might arise IN of this Mind where
after the present reiuedy mean the remedy in The S
prcme COGID mas been exhausted id lhe JuagEcnt lcIt
unsascd and property would afCrWard CONS into the
hands Of the defendant ana he refuses 70 Apply The prop
erty 10 the pay hent OF the Judgment ON inclined now
ever, 10 think warrant under INC Aon1mprsOnment act
would lie.
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