
    WOODWARD vs DASHIELL.
    Eastern Dist.
    
      April, 1840.
    ON A REHEARING.
    
      Ives, for the defendant and appellant, prayed for a rehearing.
    1. It seems to be admitted there was not sufficient time or notice given by the sheriff before seizure, and consequently the injunction should be sustained for irregularity and illegality of the proceedings.
    2. There is but one legal and proper way of selling property under the writ of seizure, and the sheriff was pursuing a different and unlawful course in this case. Such proceeding was properly enjoined.
    3. A direct action against the sheriff for damages, is at the option of the defendant, and is merely a cumulative remedy. It cannot take away the right of injunction.
    4. The damages on the dissolution were erroneous, and not sustained by evidence. They were awarded peremptorily, without proof, and under a misconstruction of the statutes of 1831.
   Martin, J.,

delivered thé opinion of the court.

We have been requested to review our judgment in this case, and it has appeared to us proper to alter and. amend it. The injunction was dissolved, although the party who had obtained it was, perhaps, entitled to have it sustained, because we were of opinion the remedy was worse than the evil, as a new seizure must have been immediately issued. For this purpose, and for this purpose alone, the injunction was not sustained. We have often refused to dissolve when we thought the party was immediately J ° r J J entitled to a new one, on the dissolution of the former, and in order to avoid expense, delay and trouble.

An injunction soívedf1 bVilen the party is mediately entitied to a new on®‘

, So, where an injunction was ed°Pbut'it'be-^ came necessary dissolved, the to'be mufctedin damages.

In the present case the injunction was dissolved, although was ptopeily obtained. In such cases the party should not be mulcted in damages, because the dissolution takes place for the sole purpose of avoiding unnecessary costs and delay In bringing the suit to a conclusion, and the party benefited thereby, cannot expect us to give damages; for if we were compelled to do so, we would sustain the injunction, and require him to begin anew.

Amending our former judgment in this case, it is ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; and proceeding to give such judgment as in our opinion ought to have been given in the court below, it is further ordered and decreed, that the injunction be dissolved with costs; those of the appeal to be borne by the appellee.  