Platt v. Wyche

On Application por Rehearing. Poché, J. In this application, and for the first time, plaintiff and his s-rety on the injunction bond make the point, that damages are not contemplated in the Code of Practice as applicable to in injunction which restricts the execution of the judgment only in so far as certain specified property claimed as a homestead, is concerned, and by which the integrity or legal effect of the judgment is not involved. They also make the point that the writ of injunction was not abused. Under the peculiar circumstances of this case, in which a novel question touching the application of the homestead law of 1865, as affected by subsequent constitutional provisions, was presented for solution, we are impressed with the force of the complaint. In allowing the statutory damages prayed for^ by plaintiff in execution we bad followed a judicial precedent, but on inspection wo find tliat in the case referred to the question now submitted had not been raised. Bridewell vs. Halliday, 37 Ann. — We shall, therefore, amend our previous decree in this particular, and relegate plaintiff in execution to a separate action on the injunction "bond. It is, therefore, ordered that our previous decree herein rendered be amended so as to strike therefrom the statutory damages therein allowed, reserving the right of plaintiff in execution to institute a separate action on the injunction, and it is further ordered that our decree as thus amended remain undisturbed. Roheiiriug refused.