Harrison v. McCrary

37 Ala. 687

• Court: Supreme Court of Alabama
• Decided: June 15, 1861
• Status: Published

Opinion

R. W. WALKER, J.

There was no error in the decree dissolving the injunction. The complainant,admits that he committed a trespass in taking and carrying.away the defendant’s slaves; -.and- he seeks to enj.oin the action for that trespass, -on the ground that the defendant,- is indebted to him on account -of partnership transactions,- and is insol- - v&nf. The well-settled rule, that a creditor at large, or before judgment, is not entitled-to an injunction, to prevent the debtor from fraudulently disposing of his prop---erty, (Wiggins v. Armstrong, 2 Johns. Ch. 144; Mercer v. Downs, Hopkins’ Ch. 305,) would seem to be decisive, against the right to an-injunction in this case. For, if the creditor can take his debtor’s property. by force, to secure his debt, and hold on to it by enjoining, the action of tres- - pass, he is permitted to accomplish by force, sanctioned in-¡ equity, that which the court would not allow him to do without force. To suffer that to be done, would be a plain violation of the familiar and wholesome., principle, that a . right cannot grow out of a wrong. — See, further, Hamilton v. Adams, 15 Ala. 596. In addition to this, a court of law is the proper-tribunal .-to- ascertain the damages, to which a .party is entitled for a trespass.uppn his property. ‘ Smart'.: money,’ or vindictive damages, ean.be recovered at law;-..but a court of equity cannot consider'.that question at all, and therefore cannot ascertain the damages. The effect of'-, sustaining the injunction, in such a case, must be to deny the right of the injured party to smart money.

It is hardly necessary to add, that where á bill does not\>, warrant an;-:inj unction, the injunction may properly be dis- - solved, although th.ej>ill may be retained for.other relief.-r'Norris v. Norris, 27 Ala. 529.

Decree affirmed.