1 Del. Ch. 177 | New York Court of Chancery | 1821
refused to order the writ of injunction, and assigned the following reasons :
The ground upon which a writ of injunction issues is, that the party is making use of the jurisdiction of a court of law, contrary to equity and good conscience; and it is commonly suggested in the bill, that the complainant, for some reasons therein stated, is not able to make his defence in such court, though he has a good discharge in equity; or that the court refuses some rightful advantage, or does injustice to him in the proceeding, or has not power to do him right. 1 Atk. 515, Hill vs. Turner : 1 Mad. Ch. Pr. 109 : Wyatt’s, Pr. Regr. 232. In this case, it is not even pretended that the complainant could not make a defence at law, but only that when the scire facias was called up for trial, it was considered to be the mutual interest of both parties that the matters of defence in the said cause should be heard and investigated in this Court. What advantage either party could have by proceeding in equity, which he could not have at law according to the practice in this State, is not to be conceived. It appears by the bill, that the bond is dated December 25th, 1816, and that judgment was entered by warrant of attorney in the Court of Common Pleas for Hew Castle county, on the 15th of May, 1818. Between the date of the bond and the date of the judgment all the payments of money by Conner, claimed by him as credits upon the bond, and also the sale of the merchandise to Pennington, had been made; and the defendant had no notice of the assignment of the bond to Timothy Cummins until the service of the writ of scire facias in the winter of 1819. The judgment was entered for the use of Timothy Cummins, and consequently the bond was not assigned according to the form of the Act of Assembly. There could then be no objection to pleading any discount on account of the assignment, because the complainant
But it may be said that this was ajudgment entered by a warrant of attorney and that the defendant could, at law, plead nothing in bar which might be pleaded to an original action; that this being a judgment without writ, nothing could be pleaded in bar at law, and that the party could have a remedy in equity only. As to all payments and matters of discount which accrued before the 15th of May, 1815, the date of the judgment, the Court, according to Cooke vs. Jones, Cowper 727, would have interposed on a motion to vacate the judgment, and would have afforded a relief which the party could not otherwise have had. 2 Str. 1043 : Cas. temp. Hard. 233 : Cro. El. 588 . 1 Sid. 182. The only difficulty which this part of the case offers is whether the payments and discounts which accrued after the date of the judgment could be pleaded in bar to this scire facias. In Hartzell vs. Reiss, 1 Binney, 289, the Court doubted whether, in England, the party in such a case could have any relief in a court of law. He certainly might, it was said, in equity. But there is no good reason why the Court might not.interpose in the one case as in the other. In Cooke vs. Jones, where the defence arose before the judgment, Lord Mansfield said, the party had no opportunity of pleading unless the Court interposed. If, then, the party could not plead, and the Court was compelled to interpose for the sake of justice, why should not the Court in this case afford the party relief by allowing him to plead according to the state of the transaction ? By the Stat. 4 Ann. c. 16, sec. 12, it is enacted that “ where “ any action of debt shall be brought upon any single bill, “ or where an action of debt or scire facias shall be brought “ upon any judgment, if the defendant hath paid the money “ due upon such bill or judgment, such payment shall and “ may be pleaded in bar of such action or suit.” By this Statute, which is the Act for the amendment of the law,
There is, though, a stronger objection. This bill is not brought for the settlement of a partnership concern. Every thing seems to have been adjusted (debts due to and from the partners excepted) and Conner fell in debt to Pennington, including Pennington’s share of the goods and stock in trade, in the sum of $324, for which he gave his judgment bond. Conner was to pay and collect the debts. Then, as to all money received, Conner was liable to Pennington for a moiety '; and for debts paid,Pennington was liable to Conner in the same proportion. Conner also claims commissions. Conner alleges that he paid, at the request of Pennington, debts of Pennington to several persons, and sold him goods before the assignment of the bond, amounting in all to $50.22. These make a fair claim, against Pennington, for which Conner, either by way of set off or in an action for money paid, &c., for the use of Pennington and for goods sold, may have a remedy at law. Conner collected debts, but paid away more than he collected, so that for a moiety of the excess of payments, Pennington would be liable to him. For this sum,
The injunction is refused.
