Same.

5. To prevent the breach of a contract, the performance of which would not be specifically enforced;

6. To prevent an injury to the person, character, or personal relations of the applicant, not amounting to a nuisance; except that in an action for divorce, an injunction may be granted to prevent interference with a wife or child;

7. To prevent the exercise of a public or private office, in a lawful manner, by the person in possession; 8. To prevent a legislative act by a municipal corporation; or

9. Where relief, equally efficacious, can be obtained by any other usual mode of proceeding, except in case of breach of trust.

NOTE. TO STAY A JUDICIAL PROCEEDING. So held as to actions in the same Court (Arndt vs. Williams, 16 How. Pr., p. 244; Hunt vs. Farmers' Loan, etc., Co., 8 id., p. 416; Dederick vs. Hoysradt, 4 id., p. 350; Smith vs. Am. Life Ins. Co., Clarke, p. 307; Lane vs. Clarke, id., p. 309; see Hall vs. Fisher, 1 Barb. Ch., p. 53); and as to actions in any other Court of the State (Grant vs. Quick, 5 Sandf., p. 612; see Bennett vs. Leroy, 5 Abb. Pr., pp. 55, 156; 14 How. Pr., p. 178); or of any other State (Williams vs. Ayrault, 31 Barb., p. 364; Burgess vs. Smith, 2 Barb. Ch., p. 276; Meade vs. Merritt, 2 Paige, p. 402), unless to prevent multiplicity of suits. In action brought to determine a single question, actions commenced already, as well as others threatened, may be enjoined; determined in effect in N. Y. and N. H. R. R. Co. vs. Schuyler, 17 N. Y., p. 592; 7 Abb. Pr., p. 41, as appears from the statement of facts in the report though not by opinion; and a provisional injunction for this purpose was afterwards granted.-S. C. 17 How. Pr., p. 464; S. C. again 8 Abb. Pr., p. 239. In Minor vs. Webb, 10 Abb. Pr., p. 284, where a different opinion was expressed, these last decisions were evidently not brought under the notice of the Court. In Knowles vs. Inches, 12 Cal., p. 212, it was held that to sustain an injunction to restrain vexatious litigation on the ground that the right to the real property has been determined, it must be shown that all claimants to the title were parties.-Engels vs. Hooper, 3 Cal., p. 32 ("Judicial Comity"); King vs. Hall,

5 Cal., p. 84. Injunction lies to restrain disposition of prizes forfeited to State for violation of Lottery Act until the District Court (a superior Court) passes on the main question, and also restrains the prosecution of actions for the prizes instituted in Magistrates' Courts.-People vs. Kent, 6 Cal., p. 90; Lewis vs. Tobias, 10 Cal., p. 574; Smith vs. Sparrow, 13 Cal., p. 597.

Subd. 2.-McKee vs. Voorhies, 7 Cranch, p. 281; Mead vs. Merritt, 2 Paige, p. 404; Schuyler vs. Pelissier, 3 Edw., p. 193; Phelan vs. Smith, 8 Cal., p. 521. Subd. 3.-Bicknell vs. Field, 8 Paige, p. 440.

Subd. 4.-See Kneedler vs. Lane, 45 Penn. St., pp. 238, 295; Thompson vs. Com'rs of Canal Fund, 2 Abb. Pr., p. 248; compare Hartwell vs. Armstrong, 19 Barb., p. 175.

Subd. 5.-Newbery vs. James, 2 Meriv., p. 446; Williams vs. Williams, 3 id., p. 160; see Hamblin vs. Dinneford, 2 Edw., p. 529; Sanquirico vs. Benedetti, 1 Barb., p. 315; compare Lumley vs. Wagner, 1 De G., M. & G., p. 604.

Subd. 6.-"Person."-Sterman vs. Kennedy, 15 Abb. Pr., p. 201; compare, however, Wood vs. Brooklyn, 14 Barb., p. 425. "Character." Thus the publication of a libel will not be restrained.-Brandreth vs. Lance, 8 Paige, p. 24. "Personal relations." As a trespass cannot be restrained, it follows of course that an injury to personal relations cannot be. Not being a nuisance.— See Catlin vs. Valentine, 9 Paige, p. 575; Brady vs. Weeks, 3 Barb., p. 157.

Subd. 7.-Hartt vs. Harvey, 32 Barb., p. 55; 10 Abb. Pr., p. 321; Mayor, etc., of N. Y. vs. Conover, 5 Abb. Pr., p. 171; People vs. Draper, 24 Barb., p. 365; 4 Abb. Pr., 333; People vs. Sampson, 25 Barb., p. 254; see Youngs vs. Ransom, 31 Barb., p. 49; Lewis vs. Oliver, 4 Abb. Pr., p. 121.

Subd. 8.-People vs. Mayor, etc., of N. Y., 32 Barb., p. 35; 10 Abb. Pr., p. 144; People vs. Lowber, 28 Barb., p. 65; 7 Abb. Pr., p. 158; compare People vs. Sturtevant, 9 N. Y., p. 263; Davis vs. Mayor, etc., of N. Y., 1 Duer, p. 451. As it is not supposable that any Court would presume to issue an injunction against any action of the Legislature, no provision is made against it.

Subd. 9.-" Where equally efficacious relief can be had in any other usual mode."-N. Y. Life Ins. Co. vs. Supervisors of N. Y., 4 Duer, p. 192. Thus, an injunction will not be granted where full relief can be obtained by means of a writ of prohibition (Ward vs. Kelsey,

14 Abb. Pr., p. 106), or of certiorari (Marks vs. Wilson, 11 Abb. Pr., p. 87; Hyatt vs. Bates, 35 Barb., p. 308; Heywood vs. Buffalo, 14 N. Y., p. 534; Mayor, etc., of Brooklyn vs. Meserole, 26 Wend., p. 132), or by filing a notice of action pending.-Mills vs. Mills, 21 How. Pr., p. 437; Stevenson vs. Fayerweather, id., p. 449; Osborn vs. Taylor, 5 Paige, p. 515; Waddell vs. Brune, 4 Edw., p. 671. "Except in case of breach of trust." An injunction may be granted to prevent a breach of trust, even where sufficient compensation could be recovered in damages.-Merritt vs. Thompson, 3 E. D. Smith, p. 283; Attorney Gen. vs. Aspinall, 2 Myl. & Cr., p. 613; Wood vs. Rowcliffe, 2 Phillips, p. 382; 3 Hare, p. 304; see, also, notes to-Secs. 3420-1, ante, with notes, and Van Santvoort's Equity Practice, Title "Injunctions," as to when and in what cases writs of injunction may be invoked, and when and in what cases they cannot.

PART II.

SPECIAL RELATIONS OF DEBTOR AND CREDITOR.

TITLE I. GENERAL PRINCIPLES.

II. FRAUDULENT INSTRUMENTS AND TRANSFERS.
III. ASSIGNMENTS FOR THE BENEFIT OF CRED-
ITORS.

TITLE I.

GENERAL PRINCIPLES.

SECTION 3429. Who is a debtor.

3430. Who is a creditor.

3431. Contracts of debtor are valid.

3432. Payments in preference.

3433. Relative rights of different creditors.

debtor.

3429. A debtor, within the meaning of this Title, Who is a is one who, by reason of an existing obligation, is or may become liable to pay money to another, whether such liability is certain or contingent.

NOTE.-Elwood vs. Diefendorf, 5 Barb., p. 398.

creditor.

3430. A creditor, within the meaning of this Who is a Title, is one in whose favor an obligation exists, by reason of which he is, or may become, entitled to the payment of money.

NOTE." Creditor," "Debtor."-3 Blackts. Comm., p. 18; compare Thompson vs. Van Vetchen, 5 Abb.

57-vol. ii.

Contracts of debtor

are valid.

Payments

in

Pr., p. 458; Westcott vs. Gunn, 4 Duer, p. 107; Seward vs. Jackson, Cow., p. 406; Morse vs. Hovey, 1 Sandf. Ch., p. 187.

3431. In the absence of fraud, every contract of a debtor is valid against all his creditors, existing or subsequent, who have not acquired a lien on the property affected by such contract,

NOTE.-Miller vs. Lewis, 4 N. Y., p. 554; Condre vs. Lord, 2 id., p. 269.

3432. A debtor may pay one creditor in prefer

preference. ence to another, or may give to one creditor security for the payment of his demand in preference to another.

Relative

nights of different creditors.

3433.

NOTE. This has been the invariable rule in this State. In Billings vs. Billings (January Term, 1852), 2 Cal., p. 107, it was declared that an insolvent debtor may prefer certain creditors in an assignment of his property. In Dana vs. Stanford, 10 Cal., p. 269, it was held that: "It is no part of (the) policy of the Insolvent Debtors' Law to inhibit its application to the payment of one debt rather than another." Speaking, in the case referred to, with regard to an insolvent debtor disposing of his property in payment of certain debts rather than others, the first recited case is affirmed in Chenery vs. Palmer, 6 Cal., p. 122, and in Smith vs. Morse, 2 Cal., p. 541. Dana vs. Stanford is affirmed in Randall vs. Buffington, 10 Cal., p. 494; Wellington vs. Sedgwick, 12 Cal., p. 474; Gladwin vs. Garrison, 13 id., p. 332; Wheaton vs. Neville, 19 id., p. 46; Waldon vs. Murdock, 23 id., p. 550; and others. So that this rule may be said to be well settled.-Mamlock vs. White, 20 Cal., p. 598; Meeker vs. Harris, 19 Cal., p. 288; see Sec. 3449 and note, post.

Where a creditor is entitled to resort to each of several funds for the satisfaction of his claim, and another person has an interest in, or is entitled as a creditor to resort to some, but not all of them, the latter may require the former to seek satisfaction from those funds to which the latter has no such claim, so far as it can be done without impairing the right of