his agent, shall indemnify the sheriff against such claim, by an undertaking, executed by two sufficient sureties, accompanied by their affidavit, that they are each worth double the value of the property as specified in the affidavit of the plaintiff, and freeholders and householders of the county. And no claim to such property by any other person than the defendant or his agent shall be valid against the sheriff unless made as aforesaid; and notwithstanding such claim, when so made, he may retain the property a reasonable time to demand such indemnity.

a. This section applies only when the property is taken by the sheriff in the proper discharge of his duty, and not when the property is wrongfully taken (King v. Orser, 4 Duer, 431; see note to section 209, ante).

§ 217. Filing notice and affidavit.

The sheriff shall file the notice and affidavit, with his proceedings thereon, with the clerk of the court in which the action is pending, within twenty days after taking the property mentioned therein.

CHAPTER III.
Injunction.

SECTION 218. Writ of injunction abolished, and order substituted. 219. Temporary injunction, in what cases granted.

220. At what time it may be granted.

221. Injunction after answer.

222. Security upon injunction. Damages, how ascertained.

223. Order to show cause why injunction should not be granted. 224. Security, upon injunction, to suspend business of corporation.

225. Motion to vacate or modify injunction.

226. Affidavits on motion.

$218. Injunction by order.

The writ of injunction as a provisional remedy is abolished, and an injunction by order is substituted therefor. The order may be made by the court in which the action is brought, or by a judge thereof, or by a county judge, in the cases provided in the next section; and when made by a judge may be enforced as the order of the court.

a. Kinds of injunction.—Injunctions in an action with reference to their duration, are of two kinds-temporary and final. The temporary injunction issues before, and the final injunction contemporaneously with, the judgment. Injunctions also issue in special cases, as in proceedings supplementary to the execution, &c. What is now called a temporary injunction was, before the code, known as a preliminary injunction. This chapter has no reference to final injunctions. The granting or refusing a final injunction was always a matter of strict right, depending on the rules of equity, and these are in no wise affected by this chapter (See Linden v. Fritz, 5 How. 188; Howard v. Ellis, 4 Sand. 374; N. Y. Life Ins. Co. v. Supervisors of N. Y. 4 Duer, 200). This chapter relates solely to temporary injunctions (Roberts v. Anderson, 2 Johns. Ch. R. 202). All injunctions are temporary which are pendente lite. Permanent injunctions can be obtained only by judgment (7 Rob. 400); granting or refusing a temporary injunction is a matter resting in discretion (M'Cafferty v. Glazier, 10 How. 475; Minor v. Terry, 6 id. 210; Crocker v. Baker, 3 Abb 183). The code is permissive only (Bruce v. Delaware Canal Co. 19 Barb. 371). It is considered that this chapter very materially enlarges the class of cases in which a temporary injunction may be allowed (Gure v. Crawford, 5 How. 293; Perkins v. Warren, 6 How. 341; Malcomb v. Miller, id. 456; Thompson v. Comm's of Canal Fund, 2 Abb. 248; Reubens v. Joel, 13 N. Y. 488; Merritt v. Thompson. 3 E. D Smith, 295). But it cannot be construed to create new rights of action or give new remedies (Wordsworth v. Lyon, 5 How. 463).

6. Injunction can only go against a party to the action.— (Watson v. Fuller, 9 How. 426; Fellows v. Fellows, 4 Johns. Ch. R. 25; Waller v. Harris, 7 Paige, 167). But a defendant cannot object that a person not a party to the action is enjoined (Tradesman's B'k v. Merrit, 1 Paige, 302). The court will discharge the injunction as to such person on his application (id.) And it has been said the court will not attach him for disobeying the injunction (Watson v. Fuller, 9 How. 426).

c. Injunction never retroactive.—(The People v. Albany R. R. Co. 12 Abb. 171).

d. Board of Health.-Supreme court only has jurisdiction to enjoin (Laws 1867, p. 2410; Burnham v. Acton, 7 Rob. 395).

e. Who may grant.-The motion for an injunction may be made at a general term (Drake v. Hudson R. R. Co. 2 Code Rep. 67), and in certain cases before a county judge. See section 403, post. A judge related by affinity to one of the defendants in an action cannot grant an injuuction in such action (New Haven R. R. Co. v. Schuyler, 28 How. 187).

§ 219. (Am'd 1849.) Injunction, in what cases.

[1] Where it shall appear by the complaint, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or,

[2] When during the litigation it shall appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done in violation of the plaintiff's rights respecting the subject of the action and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.

[3] And where, during the pendency of an action, it shall ap

pear by affidavit, that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction may be granted to restrain such removal or disposition.

a. Grounds for injunction.-To authorize an injunction, there should not only be a clear violation of the plaintiff's rights, but the rights themselves should be certain, and capable of being clearly ascertained (Olmstead v. Loomis, 6 Barb. 152; Androvette v. Bowne, 4 Abb. 440; 15 How. 75; Crocker v. Baker, 3 Abb. 182). It should be issued with caution (Woodward v. Harris, 2 Barb. 440); and not be granted in every case in which the plaintiff brings himself within the letter of this section. Some regard should be had to the nature and extent of the injury which the plaintiff would suffer if the injunc tion should be withheld, and also to the consequences to the defendant if it be granted (Bruce v. Delaware Canal Co. 19 Barb. 371; Gallitan v. Oriental Bank, 16 How. 253; McCafferty v. Glazier, 10 id. 475; Mace v. Trustees of Newburg, 15 How. 161). It must be shown that defendant is about to do some specific act in violation of plaintiff's rights (Lewis v. Oliver, 4 Abb. 121). An injunction should not be granted ex parte unless pressing necessity is shown (Androvette v. Bowne, 4 Abb. 440; 15 How. 75; Redfield v. Middleton, 7 Bosw. 649). An injunction should only be granted where it appears by the complaint that the plaintiff is entitled to the relief demanded, and where it also appears by affidavit that sufficient grounds exist therefor (Fowler v. Burns, 7 Bosw. 637).

b. It is no ground for refusing an injunction that the plaintiff shows, in addition to the facts entitling him to the injunction, a state of facts entitling him to an order of arrest (Merritt v. Thompson, 3 E. D. Smith, 284).

c. Injunction by defendant.-To enable a defendant to obtain an injunction, he must serve a complaint, &c., in the nature of a cross-suit, (Thursby v. Mills, 1 Code Rep. 83). The courts have no authority to grant affirmatively an injunction to a defendant. Perhaps they may make it a condition of relief to a plaintiff, that he be enjoined (Springsteen v. Powers, 3 Rob. 624).

d. Injunction, how served.-The order cannot be regularly served prior to the summons; the summons and order may be served together (Lef fingwell v. Chave, 19 How. 54). Where an injunction is granted by the court, and not by a judge out of court, it is properly served by a personal delivery of a certified copy, and no exhibition of the original order is requisite (Mayor of N. Y. v. Conover, 5 Abb. 244); but if the order is made at chambers, the original must be produced and shown to the party served at the time of the service, unless the court make an order to dispense with personal service (3 Paige, 85). Otherwise the service will not suffice to found a proceeding for contempt (Coddington v. Webb, 6 Sand. 439; Watson v. Fuller, 9 How. 426; Loomis v. Brown, 16 Barb. 330; contra, see Livingston v. Swift, 23 How. 1). An injunction directed to a municipal corporation is properly served upon the mayor, as the chief officer of such corporation (Davis v. Mayor of New York, 1 Duer, 486; 9 N. Y. 277). A copy of the papers upon which an injunction is granted, must in all cases be served with the injunction, or the service of the injunction will be set aside as irregular (Penfield v. White, 8 How. 87; Leffingwell v. Chave, 19 How. 55). The object of requiring service of a copy of the affidavit, is to apprise the defendant of the facts alleged on which the injunction was granted (b.) Is the omitting to serve the affidavit on which the injunction was granted such an irregularity as releases the party upon whom the service is made from the duty of obedience? Semble, that it does not (Davis v. Mayor of N. Y. 1 Duer, 451; contra, Watson v. Fuller, 9 How. 426). The omission, however, to serve the papers on which the injunction was granted does not entitle the defendant to have the injunction vacated,

but only to have the service set aside (Penfield v. White, 8 How. 87; see, however, Johnson v. Casey, 28 How. 492).

a. Order must be obeyed.-So long as an injunction is in force it must be obeyed, although improperly or irregularly issued (2 Edw. Ch. R. 188; 4 Paige, 444; Smith v. Reno, 6 How. 124; Smith v. Austen, 1 Code Rep. N. S. 137; Krom v. Hogan. 4 How. 225; Davis v. Mayor of N. Y. 9 N. Y. 263; Neale v. Osborne, 15 How. 81; Mc Cardel v. Peck, 28 How. 120; Peck v. Yorks, 32 How. 408). And an injunction directed to a corporation is binding, not only on the corporation itself, but upon every person whose personal action as member or officer of the corporate body it seeks to restrain (id.) Service of the injunction order on a person not a party, and to whom the order is not directed, does not operate to bind him by the injunction. Its utmost effect

is as a notice (Edmonston v. McLoud, 19 Barb. 356); and semble, he cannot be attached for disobeying it (Watson v. Fuller, 9 How. 426). Where an injunction against the further prosecution of a legal proceeding is served upon the promovent therein, it is his duty not only to refrain from taking any further active part in the proceeding enjoined, but also to direct the officers of the court and others who act in the proceedings at his instance, to refrain from any further steps in the matter, pending the continuance in force of the injunction (Mayor of N. Y. v. Conover, 5 Abb. 244; St. John's College v. Carter, 4 My. & C. 497). A party restrained by injunction from doing a particular act, cannot stand by passive and see the injunction violated by his partner in business at the expense of the partnership, without being guilty of a contempt (Neale v. Osborne, 15 How. 81); and where one is restrained by injunction order from performing an act on his own land, and he having power to prevent, stands by and suffers another to perform the prohibited act, he is guilty of a violation of the order (Wheeler v. Gilsey, 35 How. 139; see, however, The People v. Albany R. R. Co. 12 Abb. 171; Field v. Chapman, 13 Abb. 320).

b. A corporation may be punished for contempt of an injunction (The People v. Albany R. R. Co. 12 Abb. 171; 20 How. 358). An attachment for disobedience of a judgment enjoining a particular act, is a proceeding on the judgment, and will not be granted where defendant has appealed and given security staying proceedings on the judgment (Howe v. Searing, 11 Abb. 28). Semble, a person cannot be punished for a contempt of an injunction order, after the order has been vacated (Peck v. Yorks, 32 How. 408). Fine for contempt (Noel v. Kingsland, 1 Trans, App. 270).

c. To render a person not a party to the action nor named in the order liable for disobeying it, on the sole ground that he is agent or servant of the defendant, he must bear such a relation to the defendant as will enable the latter to control his action in relation to the subject-matter of the injunction (Batterman v. Finn, 32 How. 501; 34 id. 108).

d. Review of order.-The propriety of issuing the injunction cannot be reviewed on appeal from an order granting an attachment for the violation of such injunction (Grim v. Grim, 1 E. D. Smith, 190). An appeal from an order granting an injunction does not stay the operation of the injunction pending the appeal; and, notwithstanding the appeal, an attachment will issue to punish the party enjoined for any violation of the injunction (Stone v. Carlan, 3 Code Rep. 103).

e. Effect of dismissal of complaint, or removal of cause. Where an injunction is allowed, and the complaint is subsequently dismissed, the injunction, ipso facto, falls with it. Nor can an appeal restore the injunction. It can only be restored by a reversal of the judgment. But where an appeal has been taken from such judgment of dismissal, the plaintiff can apply to the court, on notice, to restrain the proceedings of defendant until the decision of the appeal (Hoyt v. Carter, 7 How. 140). If such a motion is granted, it is in fact the granting a new injunction. A new undertaking should be given as the sureties on the injunction first issued are discharged (Town of Guilford v. Cornell, 4 Abb. 220; Disbro v. Disbro, 37 How. 147); and as to

the effect of a discontinuance of the action, see Hope v. Acker, 7 Abb. 308; Hoyt v. Carter, 7 How. 140; Dunkin v. Lawrence, 1 Barb. 447). On the removal of a cause from the State court into the circuit court of the United States, where there is an injunction, the order for removal may provide that it (the order) shall not operate of itself to dissolve the injunction (Liddle v. Thatcher, 12 How. 294).

a. Note to paragraph 1.-To authorize an injunction under the first division of this section, the complaint must contain a demand for it as part of the relief sought (Hovey v. McCrea, 4 How. 31; Olsen v. Smith, 7 id. 481; Vincent v. King, 13 id. 239). It is not enough to show that the continuance of the acts complained of will do him an injury; he must also show that it is a case in which he will be entitled to final relief (Corning v. Troy Iron and Nail Factory. 6 How. 89; Ward v. Dewey, 7 ib. 17; Crocker v. Baker, 3 Abb. 182; Wordsworth v. Lyon, 5 How. 463; Hartt v. Harvey, 32 Barb. 55; 10 Abb. 322); and therefore an injunction cannot be granted to restrain the doing of acts in relation to property, in respect to which acts or property no final judgment is prayed (Hulce v. Thompson, 8 How. 475). Where the complaint claimed that one defendant purchased a bale of goods of the plaintiff with intent to defraud him, and afterwards sold the goods to the other defendant; and charged the latter with knowledge of the fraud; and claimed the amount of the goods, and that the defendants were insolvent,—was held to be a case for an injunction to restrain the sale or disposition of the goods by defendants during the litigation (Malcomb v. Miller, 6 How. 456; Mitchell v. Bettman, 25 Barb. 408; see, however, Reubens v. Joel, 13 N. Y. 488).

b. Note to paragraph 2.—An injunction under this provision can only be for acts done or threatened pending the litigation (Seabring v. Lant, 9 How. 347; Malcomb v. Miller, 6 id. 456; see, however, Merritt v. Thompson, 3 E. D Smith, 284), and the acts must be such as shall "tend to render the judgment" to be obtained" ineffectual" (Horey v. McCrea, 4 How. 31; Olsen v. Smith 7 id. 481; Vincent v. King, 13 id. 239; Power v. Alger, 13 Abb. 284; Vermil yea v. Vermilyea, 14 How. 470). Where a fraudulent transfer has been made, the court is not authorized, in an action by a simple contract creditor against the debtor and his fraudulent vendee, to restrain the latter from disposing of the property (Reubens v. Joel, 13 N. Y. 488; Bishop v. Halsey, 3 Abb. 400; see N. Y. Ice Co. v. N. W. Ins. Co. 21 How. 296).

c. In an action by a wife for a divorce a mensa, and for maintenance, the complaint, besides stating a cause of action, alleged that defendant threatened to dispose of his property, and remove from the State, without providing for the plaintiff, and asked that he should be restrained from so doing, an injunction was granted (Vermilyen v. Vermilyea, 14 How. 470; 6 Abb. 511).

d. Note to paragraph 3.-A mere refusal to pay a debt, whether the defendant be insolvent or not, is not sufficient cause for an injunction (Pomeroy v. Hindmarsh, 5 How. 437). Nor is it sufficient that the defendant threatened, before the action was commenced, to make an assignment for the benefit of his creditors (id). But where, during the pendency of an action, it shall appear by affidavit, that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction may be issued to restrain such removal or disposition (Perkins v. Warren, 6 How. 341; Malcomb v. Miller, 6 id. 456; Hovey v. M'Crea, 4 id. 31). But such a remedy by injunction is only applicable where the act is threatened, or is about to be done, and not when it has been done (b). Nor is a plaintiff entitled to an injunction in such case, unless he establishes an equitable ground for interference, by showing that he is a creditor, or that he will be injured by the threatened fraudulent transfer (b). An injunction ought not to be issued on such an application, where the plaintiff's demand is denied on oath by the defendant, and is unsupported by any evidence, and there is no proof that the plaintiff has any interest in restraining the defendant (b.) Where the legal right of the plaintiff is denied by affidavit, as broadly as it is asserted, the application stands upon the same ground, and shall be governed by the same