Cure v. Crawford , 5 How. Pr. 293 ( 1850 )

Edmonds, J.:

The only question which it is necessary for me to consider in this ease is whether the Code has made any alteration in the law which would formerly have governed it.

My confidence in the correctness of the opinion expressed in Smith v. Moffat has been unshaken - by any thing which has been urged on this argument, but whether a new state of the law governing the case has not arisen under the Code, is another question.

Before the Code it was a well established rule that an injunction would not issue to restrain a trespass, unless it would work an irreparable injury, or a destruction of the freehold for the uses to which it was devoted, or to prevent a multiplicity of suits. (Hart v. Mayor of Albany, 9 Wend. 570; Livingston v. Livingston, 6 John. C. R. 497; Jerome v. Ross, 7 John. C. R. 315.)

But now, by section 219 of the Code, an injunction may issue wherever the commission of the act complained of, during litigation, would “ produce injury to the plaintiff'.” In this respect the Code of 1849 differs materially from that of 1848. In the latter the provision was that an injunction might issue to restrain the commission or continuance of an act, the commission or continuance of which would produce great or irreparable injury to the plaintiff. (Code of 1848, § 192; Code of 1849, § 219.)

This enactment very greatly enlarges the power of the court in the use of a preliminary injunction, and removes the inquiry which formerly was always made, namely, whether the injury was irreparable in its character, or would destroy the freehold. Kow it is enough to warrant the issuing of an injunction to show that any injury would be produced to the plaintiff.

But this is not all the change in the law which this pro vision of the Code has wrought. Its language is very unequivocal, and plainly reaches the case now before me, for the simple reason that the provision of the Bevised Statutes (2 B. S. 516, § 47), which enacts that the proceedings to remove a tenant shall not be stayed or suspended by any writ or order of any court or officer, is plainly inconsistent with the provision of the Code, which authorizes an injunction in any case where the act complained of would produce any injury to .the plaintiff, and by § 468 of the Code, all statutory provisions inconsistent with that act are repealed.

So, that henceforth, on an application for an injunction, the inquiry is not to be, as formerly, whether the act complained of would work an irreparable injury or the destruction of the freehold, or whether it proceeded from an attempt to remove a tenant holding over, but simply whether it would produce injury to the plaintiff.

If the act is clearly right and proper, if could not properly be said to produce injury to the plaintiff, but to be the removal or prevention of an injury, which he was producing to the other side. And hence, the inquiry, and the only one, it appears to me, which under the Code can be made, is whether the act which is sought to be restrained is lawful or not.

This is very extraordinary power to be conferred on any court, and it may well be doubted how far it was expedient or necessary to grant it. But that is a question with which we have nothing to do. That is reserved for other and wiser heads.

I must, therefore, inquire in this case whether the defendant’s proceedings, which are restrained by the injunction, were according to law; and on this point, it appears to me very clearly that they were not.

Under this state of things, and this new condition of the law, it is doubtless proper to restrain an act unlawful in itself, and which must produce an injury to the plaintiff.

The motion to dissolve the injunction must be denied, but without costs.