Berkeley v. Smith

Christian, J.,

dissented.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that whilst the rights of the appellees are clear, the injury and damages which they have sustained are serious, and that the corporation court did not exceed its powers in awarding a mandar tory injunction, yet as the exercise of that power is one which ought to be attended with great caution, and the court here is not satisfied that the appellees may not be abundantly compensated in damages by a pecuniary sum for the injury which they have sustained. It is therefore decreed and ordered that the decree of *901the said corporation court be reversed and annulled, ■and that the cause be remanded to the said corporation -court with instructions to direct an enquiry to be by a jury, to be empannelled at its bar, to ascertain whether any and what pecuniary sum may adequately ■compensate the appellees for the permanent damages which they have sustained by the acts and doings of the appellant; and upon the return of the verdict of the jury to render such decree as will be right and proper in the case as then presented; and in the meantime to suspend the order awarding a mandatory injunction. And the appellees being the parties substantially prevailing, it is further decreed and ordered that they recover of the appellant their costs by them about their defence in this behalf expended.

Decree reversed.