46 Ky. 586 | Ky. Ct. App. | 1847
delivered the opinion of the Court.
Jones having recovered a judgment against Collett for $75, with interest and costs, caused his execution to be levied on a horse, the only work beast of the debtor, who was a house keeper with a family, and the horse having been sold whereby the execution was satisfied' and so returned, Collett brought an action of trespass against Jones and Hall, who as Sheriff, had made the levy and sale. In that action a verdict was rendered for the plaintiff for $80 in damages, and this bill filed’by Jones and Hall, (to the latter of whom Jones had executed a bond of indemnity, and had also assigned one half of his claim on Collett,) enjoins further proceedings on the verdict, and prays to set off the claim upon Collett against his verdict, on the ailedged ground of his entire insolvency. This ground having been fully made out in proof, the Court on hearing the cause, perpetuated the injunction against further proceedings on the verdict, and decreed in favor of tne complainants a balance of $27 80 found by calculating the interest on the debt of Collett to Jones, up to the rendition of the decree.
If the perpetuation of the injunction was proper, it was certainly inequitable to decree interest upon Collett’s debt to Jones for any part of the time accruing after that
To the argument that the statute exempted the horse and not a judgment for his value or for taking him, and that it would be inequitable to allow an insolvent debtor to draw from his creditor the only means of satisfying the debt, it is a sufficient reply, that but for the illegal act of the complainants, the subject to which the privilege of exemption attached, would have been unchanged, and they should derive no advantage from their own wrong, and that highly as the right of the creditor is regarded, it is by the paramount authority of the Legislature expressly postponed to the right of the debtor and bis family to the services of an only work beast, and cannot, therefore, be prefeired by a Court of equity, which would violate its own principles by protecting the creditor in an advantage wrongfully obtained against the superior, and as we may assume, prior equity of the debtor.
Whether other creditors may or may not be entitled in equity to subject to their demands the judgment of Collett for the violation of his right in taking this horse, is immaterial to the argument in the present case. So far as they are concerned, it might not be essential to the preservation of the authority of the statute to extend its protection to a judgmentagainst another for the violation of a privilege which they have respected, and at any rate they can, with a clear conscience, rely upon the difference between the damages for taking the horse and the horse stself, as the conversion would not have been the consequence of their own unlawful act.
The complainants were, therefore, not entitled to any part of the relief which was granted by the decree. But as it is obvious that if they are to be deprived of the satisfaction received upon their judgment by the enfoicement of the judgment against them, they should be allowed to coerce their judgment if it can be done, and to that end should be relieved from the effect of the return upon the execution evidencing a satisfaction of their demand ; we are of opinion that unless upon a rule made in this case, the defendant, Collett, shall consent in the common law side of the Court, to an order setting aside the return on the execution, and authorizing further writ or writs of execution for enforcing the judgment against him, he should be enjoined from proceeding upon his verdict, except to obtain a judgment thereon, (which should never have been prevented by injunction,) and to enforce so much of such judgment as may exceed the amount of principal, interest and costs due on the judgment against him at the time of obtaining his judgment, and upon his compliance with the rule, the injunction should be dissolved the bill dismissed with costs.
Wherefore, the decree is reversed and the cause remanded for further proceedings and decree as above indicated.