majority">Dorsey, J.,

delivered the opinion of this court.

In considering the propriety of the injunction before us, it may not perhaps be out of place to refer to some of the familiar and well established rules which should be observed in reference to the issue of such writs. In 2 Story’s Eq., sec. 959a, it is stated, “that the granting,, or refusing of injunctions, is a matter resting in the sound discretion of a court of equity, and, consequently, no injunction will be granted, wherever it will operate oppressively;” “or where it is not the fit and appropriate mode of redress, under all the circumstances of the case; or where it will or may work an immediate mischief.” And in sec. 959S, of the same book, the learned commentator says, “it ought, therefore, to be guarded with extreme caution, and applied only in clear cases; otherwise, instead of becoming an instrument to promote the public, as well as private, welfare, it may become a means of extortion, and, perhaps, irreparable injustice.”

The appeal in this case, has been taken to the order of the 4th of October 1846, granting the injunction prayed for in the bill of complaint. The bill does not seek a specific performance of the contract, of which it charges the violation, and, therefore, does not asb for the injunction, as ancillary to such a proceeding, or as restraining the violation of the alleged agreement, until a decree for such performance can be obtained. On the contrary it is conceded, as it well might be, both on reason and authority, that such is the nature of the engagement, or contract of Mrs. Burke, (if contract it can be called,) that its enforcement in a court of equity, by way of a decree for its specific execution, cannot be obtained. What are the means, then, by which the complainant seeks, through the medium of a court of equity, to coerce Mrs. Burke to the observance of her engagement? Why, by the imposition of *491certain prohibitions, restrictions, pains and penalties, by which she is offered the mild alternative of returning to the service of the complainant; or, (if dependent on her professional labors for a support,) she must either beg her bread, or be incarcerated within the walls of a public prison, and this, too, is to be her condition, without having first given her an opportunity of shewing, (should such be the fact,) that neither legally, equitably or morally, is she under the slightest obligation to return to the service of the complainant. For the granting of such relief in such a case, it is believed, no sufficient authority can be produced.

To sustain the injunction before us, two cases have been referred to by the complainant’s solicitor. The first, that of Martin vs. Nutkin, 2 Pr. Will., 266, “where certain persons owning a house in the neighborhood of a church, entered into an engagement to erect a cupola and clock, in consideration that the bell should not be rang at five o’clock in the morning, to their annoyance. The agreement being violated, an injunction was afterwards granted, to prevent the bell being rung at that hour.” The second case was, that of Morris vs. Colman, 18 Ves., 437, “where, upon the same ground a celebrated play-writer, who had covenanted not to write any dramatic performance for another theatre, was, by injunction restrained from violating the covenant.” By so doing, in these two cases, the parties’ defendants were required to perform that which, by the express stipulations of their contracts, they were bound to do. The granting the injunctions there, was in effect and substance, if not in form, the decreeing the specific execution of the agreement of the parties, according to the express and unequivocal terms of their compacts. But was such the character of the injunction issued in this case? Did the engagement or contract of Mrs. Burke, conlain any negative stipulation, that she would not do that which the injunction, issued, prohibited her from doing? Unquestionably not. Her only agreement was to render the services, in the company of the complainant, which were specified in her contract. The injunction, then, did not command the performance of that which was stipulated in the agreement, but prohibited the *492doing of acts, in relation to which she had made no stipulation. The cases cited, therefore, are not precedents for, and give no countenance to, the injunction issued in this case.

In Kemble vs. Kean, reported in 6 Simons, 333, and to be found in 9 Condensed Cha. Rep., 296, after a full examination of all the cases upon the subject, the vice-chancellor decided, that where the proprietor of Covent Garden Theatre agreed with an actor, that he should act for twenty-four nights, during a certain period of time, at their theatre, and that, in the meantime, he should not act at any other place in Condon, that the court cannot enforce the positive part of the contract, and, therefore, it will not restrain, by injunction,- a breach of the negative part. And in Kimberley vs. Jennings, 6 Simons, 340, and also reported in 9 Cond. Ch. Rep., 300, it was in like manner determined, that where a party agreed not to do a particular act, and there are other terms in the agreement, which are so vague, that the court cannot enforce them, it will not grant an injunction to restrain the breach of the negative term. If these cases are to be regarded as of any authority, upon what principle could the complainant, under a contract affirmative in all its provisions, and the execution of which could not be specifically enforced, ask a court of equity, in effect, to engraft upon it a negative stipulation, the breach whereof was to be restrained by injunction, as if it had formed a part of the written agreement of the parties?

But, conceding for the moment, that if primarily applied to, a court of equity could have granted the relief which has been extended to the complainant, under the circumstances in which it has been sought, it ought not to have been granted. A court of chancery never lends its aid in furtherance of injustice or oppression. Is it not unjust and oppressive in the complainant, whilst prosecuting at law a suit, by which he is to be indemnified for all damage he has sustained by the refusal of Mrs. Burke to perform her engagement, that at the same time, and for the same injury, he should seek to visit upon her in a court of equity'pains and penalties, by -which she may be stripped of all means of subsistence, or be consigned to loathsome imprisonment in jail? Equity will not listen to a complainant *493•who thus presents himself for relief, until he makes his election, in which court he desires to proceed in pursuit of his rights, and has dismissed, or agreed to dismiss, his proceedings in the other. The complainant is entitled to recover but one compensation for the injury he has sustained. That, the law presumes, he will obtain in his action at law; and to that, and nothing more, is he, in any aspect of his case, entitled, either in the contemplation of a court of law or of equity. To him, it is a full and adequate indemnity. In mitigation of the damages to be recovered at law, no losses or sufferings, inflicted upon Mr. or Mrs. Burke, by the proceedings in equity, can he given in evidence. To them, in such a case, neither law or equity affords any adequate redress. It follows, as a necessary consequence, that the proceedings in both courts, at the same time, should not be tolerated.

In the views thus far expressed, we have treated Mrs. Burke as a person sui juris, and bound to the performance of the engagement entered into on her behalf, in the same manner that she would have been, had she been a feme sole. But such was not her condition. Being a feme covert, except in regard to her separate property, all her covenants, contracts, promises and agreements, as well in courts of law, as of equity, are absolutely null and void, and she is under no obligation, and cannot be compelled, to perform them, whether entered into by herself, or on her behalf by her husband, with or without her consent. From this exemption, it results as a corollary, that all proceedings emanating from a court of justice against her, which disclose her coverture, and seek the enforcement of any such contract, are fruitless and illegal. If the issuing of the injunction against Mrs. Burke, could, in this case, be sustained, her violation of it, would cause to be visited upon her all the consequences incident to an attachment for a contempt of court; and thus, by indirect means, and the abuse of the process of a court of equity, she would be as amenable for her contracts entered into during coverture, as those made by her dum sola.

This court will sign a decree reversing the order of the 4th of October 1846, and dissolving the injunction issued there*494under, and dismissing the complainant’s bill, with costs, in this court and the court below.

Injunction dissolved and bill DISMISSED, WITH COSTS.

Citation profile

How this case has been treated — in progress