3 N.J. Eq. 168 | New York Court of Chancery | 1834
The defendant seeks to have the injunction in this case dissolved on two grounds, both of which, I think, are well taken.
The first is, that the injunction issued to stay proceedings at law, after judgment, without any deposite being first made of the amount of the judgment and costs.
The defendant, in 1820, had recovered a judgment against the complainant, in the court of common pleas of the county of Sussex. The complainant afterwards removing to the county of Bergen, and the judgment, or the greater part of it, remaining unpaid, a suit was brought upon it in that county, and a second judgment recovered in January, 1823. The complainant then removed to the city of New-York, and having after-wards acquired property in this state, a writ of attachment was sued out by the defendant to seize the property, and thereby out of it to make the money still due on the last mentioned judgment. The injunction was issued to stay the proceedings in the attachment.
It was necessary, before the injunction could rightfully issue under these circumstances, that the amount due on the judgment should have been deposited with the clerk. By the sixth section
This provision is not limited to proceedings in the same suit. It does not mean; simply; that a party shall not be restrained from issuing execution on a judgment, or from proceeding to-make the money on such execution. But it means,- that a party who has obtained a judgment, shall not be stayed or hindered ire any suit or proceeding he may inslitute for the recovery of it, unless the amount of it be first deposited in the office. Such is the true spirit of the section, and the reason of the thing.
If a party shall not be injoined against issuing execution, he ought not to be injoined against proceeding by attach merit, where that would be more effectual than an execution.. Both are-proceedings at law after judgment, and the object of both is the same, viz: the recovery of the amount of the judgment.
In the case of Newton v. Douglass, there was a bill in equity, filed, to enforce the collection of money, due on a judgment, after the return of an- execution at law unsatisfied, and the defendant in equity sought to restrain the proceedings i-n that court. ■The chancellor said; if the complainant had any equity in his case, he could not have been entitled to an order in the nature of an injunction, without paying into court a sum of money equal to the amount of the judgment and’costs, in conformity with ths statute. And he held that, although the statute (which is, quoad hoc, the same- as ours) did not in terms embrace a proceeding ire chancery to enforce the collection of a judgment, yet it was within the spirit of the law : 1 Hoff. Prac. 89, in notis.
On this first ground, I am of opinion, that the order for aa injunction was iraprovidently made, and that the injunction itself should be set aside for irregularity.
The defendant is entitled, also, to have thé injunction dissolved
The general principle governing all cases of this kind, has been long established, and is well defined by the court in the case of Foster v. Wood, 6 John. Chan. R. 87. “ Chancery will not relieve against a judgment at law’, on the ground of its being contrary to equity, unless the defendant in the judgment was ignorant of the fact in question pending the suit, or it could not have been received as a defence, or unless he was prevented from availing himself-of the defence by fraud or accident, or the act of the opposite party, immixed with negligence or fraud on his part.”
The complainant insists, however, that he is entitled to a credit of about forty dollars for an account against the defendant since tile rendition of the second judgment, and that he refuses to-give him credit for it. The defendant admits the account as an equitable claim, and believes lie has given credit, or made an allowance for it, in calculating the amount of debt inserted in the affidavit on which the attachment issued. Whether this was so done or not, appears to me immaterial. The defendant admits 'the justness of the account. It is, then, a fair matter of
Let the injunction be dissolved.