Cure v. Crawford. the process, when the facts themselves, without the inference, would warrant its being issued? It seems to me that it would be unjust to do so, and therefore I must direct the same rule in this as in the other case. SUPREME COURT-SPECIAL TERM. JULY, 1850 Before EDMONDS, Justice. CURE V. CRAWFORD. The provision in the Revised Statutes (2 R. S. 516, § 47) that proceedings to remove a tenant shall not be stayed by any writ, etc., of any court, is repealed by section 219 of the Code, which authorizes an injunction in any case where the act complained of would "produce injury to the plaintiff." In determining whether an injunction should or should not issue, the only matter to be ascertained is, whether the act complained of will "produce injury to the plaintiff," and if it will the injunction must be granted. MOTION to dissolve an injunction issued to stay summary proceedings by the defendant, to remove the plaintiff from certain premises. Busteed, for plaintiff, cited Smith v. Moffat (1 Barb. S. C. R. 65). N. B. Blunt, for defendant. Edmonds, J.: The only question which it is necessary for me to consider in this case 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 30-vol. 2. Cure v. Crawford. 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. Now 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 Revised Statutes (2 R. 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 Cure v. Crawford. 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, it 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. The People v. Otto Grunzig. NEW YORK OYER AND TERMINER. AUGUST 8, 1851. Before EDMONDS, Justice, and two aldermen.. THE PEOPLE V. OTTO GRUNZIG Dying declarations may be given in evidence, when the deceased has no hope of a recovery. It is a matter of discretion with the judge, to permit the summing up to be interrupted, for the purpose of enabling the prosecution to put in evidence, which had been inadvertently omitted. In looking for motive, in order to ascertain if there was an intent to kill, the birth-place, education, and manners, and customs of the country of which the prisoner was a native, and in which he had been brought up, may be inquired into. THE prisoner was indicted for murder, in poisoning his wife. They were natives of France, and were married there. He left her there, and came to America. After a while, she followed him, and on her arrival, she found him living with another woman, by whom he had a child, but to whom he was not married. This other female, Margaritta Lorenz, did not know that he was married, but urged him to marry her, which he promised to do when their child became old enough to be christened. In the meantime, the wife arrived, and as Margaritta testified, "she scolded at first, but in half an hour was satisfied." The three lived together for a while, until the wife went out to service as a nurse. After remaining at such service for a short time, she left it, and insisted that her hus band should live with her. It was then agreed between the three, that the husband and wife should live together, and Margaritta should leave him, and receive ten dollars a month of his earnings, which were two dollars a day. Ere long, the wife insisted that she should live apart from the prisoner, and The People v. Otto Grunzig. receive the ten dollars a month, and this was agreed to. The money not being paid to her regularly, she insisted that her husband should live with her, which he did. It was while thus living with her, that she was taken ill, and after lingering some twelve days, died in violent convulsions. The symptoms of her sickness, were all such as arsenic would produce. The scrapings of the floor on which she had vomited, were examined, and showed the presence of arsenic; portions of her body were examined, and enough arsenic was found to produce death. To allay her burning thirst, her husband had fed her with sugar and water, and the remains of the sugar, in the paper from which he had taken it, were found to contain arsenic, and during her illness, he had shown great reluctance to call in a physician. He had told Margaritta that his wife had jewelry and articles worth $100, and during her illness he made two attempts to obtain those things from the place where the wife had left them for safe-keeping, and after her death he took her rings from her fingers. During the progress of the trial evidence of the wife's declarations during her illness was offered and objected to. But on its being testified that she had said that she did not expect to recover, the evidence was admitted, and her declaration was that she believed she had been poisoned in some soup which one of the neighbors had made for her, but she had said that she did not understand why her husband gave her white sugar and water, and himself drank brown sugar and water, or why he drank sugar and water at all, for he had never done it before. It was also proved that he had two parcels of white sugar from which he fed his wife-one in lumps, which did not contain arsenic, and the other was fine, which did contain it. It was also proved that during her illness he worked only one day, but devoted his time to attending on her, and that he several times complained of being sick, and said that he had vomited, but no one had seen him do so. The portions of the body in which the presence of arsenic |