Russell agt. Russell.

utes (4th ed. p. 757, § 36), says: "Six of the persons so summoned shall be drawn," &c.

2. The court excused Lucius Dellamater, one of the persons drawn. No excuse shown for the same. This was error. See objection to same by defendants. (2 R. S. 4th ed. p. 758, § 36; 20 Wend. 207, 209; 1 Seld. 383; 5 Seld. 35.) VII. The testimony shows that about ten acres of the land claimed in affidavit was not leased at all, on shares or otherwise, Yet the plaintiff recovered for the whole, being the seventeen acres.

VIII. The court erred in not allowing the defendants to show a right of possession in defendants, by title or otherwise, under which they were. in possession, as set forth in each of defendant's affidavits. (See 3 Barb. S. C. R. 400.) WILLARD J., says, "that the right of possession was put in issue by plaintiff and defendant's affidavit." (1 Hill, 121; 2 Id. 554; 3 Id. 182; 6 Id. 317; Crary on Special Pro. 467.) 1. The title in this case was in issue by plaintiff's affidavit as well as the affidavits of defendants.

2. The plaintiff claimed to be entitled to the possession as owner. And defendants in their affidavit set up title and ownership acquired prior to any letting, which entitles defendants to controvert that fact in issue. (2 R. S. § 34, p. 757, 4th ed.; 3 B. R. 402; Tay. Land. & Ten. 2d ed. 509, § 723; 11 W. R. 916; Crary's N. Y. Pr. on Special Pro. 467; 3 Sandf. 664; 6 Wend. 666; 5 Seld. R. 47; 16 N. Y. R. 573; 15 Id. 377; 22 W. R. 121; 1 Sandf. 517.)

IX. The court erred in not dismissing the proceedings on grounds set forth on page 28 of case, and in not charging the jury as requested by defendants' attorney, and in charging as he did; to which defendants' attorney excepted.

The court cannot reverse as to one, but only as to all the defendants. If irregular as to one, it is irregular as to all. (Crary's Spe. Pro. 475; 5 Seld. 227; Lal. Sup. to Hill & Denio, 236.)

All the points raised for the reversal in this case, were specifically made in the court below and overruled.

Russell agt. Russell.

For the above reasons, the defendants ask the court to reverse the judgment of the justice of the peace, with costs.

VALENTINE FERO, attorney, and

L. D. HOLSTEIN, counsel for defendant in error.

By the court, HOGEBOOM, J. The affidavit made by the defendant in error, was clearly insufficient to give the justice jurisdiction. The facts stated therein, simply show "a cropping or cultivating of land on shares," and by numerous authorities, and a series of well adjudicated decisions, the parties in such cases are tenants in common. (15 Barb. S. C. R. 595, 333; 16 How. Pr. R. 454; 3 Barb. S. C. R. 397; 15 Wend. 228; 8 Johns. 151; 3 Id. 121; 2 Id. 421; 8 Cowen, 220; 1 Wend. 385; 4 Kent's Com. 95; Taylor's Land. & Ten. 720; 26 Eng. Law & Eq. R. 139; 1 Hill, 234; 7 N. H. R. 306-8; Cro. Eliz. 143.)

And it is equally well settled that in such cases no realtion of landlord and tenant exists. (See authorities before cited.) The affidavit must show the conventional relation of landlord and tenant, and that by an agreement, before the applicant is entitled to this remedy. (1 Seld. R. 383; 5 Wend. 281; 3 Barb. S. C. R. 397; 4 Denio, 71; 24 Barb. S. C. R. 438; 1 Hill, 314; Lal. Sup. to Hill & Denio, 236.) And the affidavit must show the tenant's relation to the landlord to be that of landlord and tenant by conventional agreement, and not by mere operation of law.

The affidavit showing no such relation of landlord and tenant, the justice clearly erred in issuing his summons, as well in not discharging the proceedings on motion of the plaintiffs in error, for the reasons I have given.

The judgment and proceedings before the justice should be reversed.

Peck agt. Yorks.

SUPREME COURT.

J. FRANKLIN PECK agt. THEODORE D. YORKS.

While an injunction remains, it must be obeyed, and it is no answer to a charge of violation, that the injunction ought not to have been granted, or that it restrained acts which were proper in themselves, and which were improvidently restrained.

Where an injunction order improperly restrains certain acts of the defendant, and during its continuance these acts are performed by the defendant in technical violation of the injunction, but subsequently the injunction is modified so as to dispense with the clause improperly restraining such acts, an attachment for such violation of the injunction, applied for and issued after the modification of the injunction cannot be sustained.

This is upon the general principle that an injunction, which is but an order of the court, can have no more force or extended operation after it is set aside or modified, than a statute repealed or modified, in regard to acts previously done.

Monroe Special Term, February, 1867.

Before THOMAS A. JOHNSON, Justice.

ATTACHMENT for an alleged violation of an injunction. The plaintiff was a judgment creditor of Anthony Yorks, and brough his action in the nature of a creditor's suit against him and the above named defendant, and another.

The defendant was charged generally in the complaint with having in his possession and under his control, a large amount of property, securities and money, belonging to the judgment debtor.

The injunction enjoined and restrained the defendant from interfering, meddling with, or disposing of any of said property, &c., and in addition thereto any property in his possession or under his control.

On the 27th of January, 1864, the injunction was modified so as to restrain the defendant only, from disposing, &c., of such property as he had received from the judgment debtor, or such as belonged to such judgment debtor prior to November 22, 1861, and the proceeds thereof.

Prior to this modification, and while the injunction as originally granted remained in force, the defendant sold and conveyed a certain piece or parcel of land, and also assigned a certain bond and mortgage for upwards of $6,000, which had

Peck agt. Yorks.

been assigned to him by a person other than the judgment debtor. This property belonged to the defendant in his own right, and had never in any manner, belonged to the judgment debtor, as the referee finds, to whom it was referred to take the proofs in the proceedings on the attachment, and report the same to the court, with his opinion thereon.

The attachment was granted upon an ex parte application by the plaintiff, on the 29th of April, 1864, three months after the modification of the injunction.

J. F. PECK, in person.

G. F. DANFORTH, for defendant.

JOHNSON, J. The injunction as originally granted, by its terms restrained the defendant from disposing of any property in his possession or under his control, whether it was or ever had been the property of the judgment debtor or not, and had there been no modification of such injunction, I should be inclined to the opinion that there had been a technical violation of it by the defendant. Unquestionably the injunction was improvidently granted with so wide a scope, and was very properly modified, so as to operate only on property to which the plaintiff could possibly lay claim. But this is of no consequence, on the question of the violation of its provisions. While the injunction remains it must be obeyed, and it is no answer to a charge of violation, that the injunction ought not to have been granted.

But here the defendant is not proceeded against until after the modification, and the question arises, whether the modification did not operate to divest entirely of their illegal and improper character, the acts complained of. I am clearly of the opinion that it did. The only case I have been able to find where this question seems to have been raised, is that of Moat agt. Holbein (2 Ed. Ch. R. 188), in which the vice chancellor expresses the opinion that no motion made for an attachment after the dissolution of an injunction, on the ground of an infringement of it while in force, can be sustained. It does not appear, however, that the decision was

Peck agt. Yorks.

put exclusively upon that ground. But the analogies are all that way.

It is well settled, both in England and in this country, by numerous adjudications, that where an act is forbidden and rendered criminal by statute, and which statute is afterwards repealed, offences committed under it before such repeal, and the proceedings thereupon, are discharged by the repeal, and cannot be proceeded on afterwards unless there is a special clause in the repealing act authorizing proceedings for such acts.

In the case of Hartung agt. The People (22 N. Y. R. 95), it was held that the repeal of a law imposing a penalty, arrests the judgment even after conviction for the offience, and the judgment must be reversed on writ of error.

The authorities on the question are nearly all cited in that case. The rule has been repeatedly recognized and acted upon by the courts of this state upon the repeal or modification of our excise laws, in regard to offences committed before such repeal or modification. The reason of this rule applies with full force to the case of an injunction vacated or modified, and all acts in violation of it previously. An injunction, which is but an order of the court, can have no more force or extended operation, after it is set aside or modified, than a statute repealed or modified, in regard to acts previously done. In either case, the rule being abolished, the infraction of it is abolished also, and nothing remains on which a conviction can be based.

There was no saving clause in the order modifying the injunction in question. The illegal acts became legal and innocent by relation, upon the modification of the injunction, upon the same principle, substantially, that a legal act done under voidable process, becomes illegal and actionable by relation, after the process is set aside. While the process stands, an act in pursuance of it may be justified under it, but the moment it is set aside, an action lies by the injured party, and the process being set aside, no justification remains to the party in whose favor it is issued and served (Chapman agt. Dyett, 11 Wend. 31).