Clarke v. Wells's administrator, 6 N.C. 3, 2 Mur. 3 (1811)

July 1811 · Supreme Court of North Carolina

6 N.C. 3, 2 Mur. 3

JULY TERM, 1811.

Clarke v. Wells’s administrator.

Case agreed from Burke.

After an injunction is dissolved, and the bill continued as an original bill, the Court will order the money recovered at Law to be retained by the Master, until the Plaintiff at Law give security to perform the decree which may be made at the hearing, where it appears to the Court that the Plaintiff is insolvent, or is likely to become so, or resides out of the State,

A suit at Law was commenced in Rutherford County Court, in the name of Wells’s administrator to the use of James L. Terril, against Clarke, upon a promissory note, and judgment was obtained for the sum of £-. Clarke appealed, and( in the Superior Court, judgment was again rendered for the Plaintiff. Clarke filed a bill in Equity, and procured an injunction to stay further proceedings upon the judgment at Law. To this bill, the Defendant put in a special demurrer, which was overruled by the Court, and the Defendant then filed his auswer. Upon the hearing of the bill and answer, the injunction was dissolved, and Complainant prayed that his bill might stand over as 'an original bill. At the succeeding Term, the money to satisfy the judgment at Law having been ievied, Complainant moved the Court for an order, that the Clerk of Rutherford Superior Court, into whose hands the money so levied had been paid, should retain the money until the final determination of this suit, unless the Defendant should give bond with good and sufficient securities, to perform the decree which the Court should make upon the final hearing of the cause. This riiotion was founded upon an affidavit made by Complainant, stating the insolvency of James L. Terril, who had the beneficial interest in the judgment at Law, and who was the sole administrator of Wells ; and this affidavit was supported by the return of 4< no goods,” end or seel by the Sheriff on three executions that had issued from the Court of said county against the said Terril. It is submitted to the Supreme Court, to decide, Whether this motion ought to be allowed ?

M. Williamson and J. Pickens for Complainant. T. Coxe and M. Troy, dor Defendant.

Locke, Judge,

delivered the opinion of the Court:

The Court of Equity has the power to make the order moved for by the Complainant in this case : but this power ought to be exercised, only in cases where, without such interference, justice could not be effected. As, where the Plaintiff at Law is, or probably will be insolvent at or before the final decision of the cause in Equity ; or where he resides out of the State, and at such a distance as to expose the party prevailing, to great trouble, expense, and inconvenience, in getting back Ms money. Indeed, without such a power in a Court of Equity, it' could not afford that remedy which induces men to seek redress in that Court. A Plaintiff (who may be insolvent) obtains a judgment at Law, against a man who has no legal, but a good equitable defence 5 to avail himself of this defence, he procures a bill of injunction but the Plaintiff at Law has a conscience hardy enough to deny all the equitable matter contained in the Complainant’s bill, and on the hearing, the injunction is dissolved. The Complainant, conscious, however, tiiat lie can prove the facts upon which Ids claim to relief is founded, continues over Ids bill as an original, procures his testimony, and on the final hearing of the cause, obtains a decree in Ids favor. But in the mean time, the Plaintiff at Law has received a satisfaction of his judgment, is utterly insolvent, and beyond the reach of the Court. Of what avail .to the Complainant is the mere decree of the Court ? The remedy, which he has been seeking for years, turns out to be merely nominal: it yields him nothing. To prevent this evil, the Court of Equity, will exercise the power of making such an order as that now moved’ for; and it appears to the Court that the facts contained in Complainant’s affidavit are sufficient to authorise the exercise of this power in the present case. Let the motion be allowed, and the money retained by the Clerk, until bond with good security be given to refund the money in the event of a decree being made to that effect.