Pharr v. Reynolds , 3 Ala. 521 ( 1842 )

. ORMOND, J.

It is very certain that the 'plaintiffs, in error, do not, in their bill, show any ground for overhauling the judgment obtained at law, by the defendant. The, cases cited by the counsel, for the defendant in error, are decisive to show that'this case is not, at least in this mode relie va ble in equity. There is a total want of that diligence, Which'the Court of Chancery requires, before its interposition can be obtained.. If, as does not sufficiently appear, from the bill, the plaintiffs, 'froto "the necessity'of attending to another suit, from sickness, or from any Other cause, 'were finable to attend the Court, they should have'sent an agent, or at least, should have placed their attorney in possession of the'means, for frying or continuing the suit, if the witnesses did not attend. But independent Of these considerations, we apprehend ho case case can be found, in which "a Court'of Chancery has interfered to grant relief, in the nature'fif a new'trial at law, after judgment On a'pléa in 'abatement.

The biÍl,'howevér; is also filed to Obtain an account'from the defendant. The allegation is, that he 'was émplojtod by theto, to aid in the'ma’na'getoerit óf 'a house of eritértairitóént at the Talladega "Springs ; that'they placed, in 'his possession, eight fitindied dollars, to buy provisions 'for the'house; they allege, ■tñasí'hé did not expend more thanJthréé.hundred dollars of-the money for the purposes for which’he. ;was intrusted with it, and .tliatt'he has never accounted wftK ítriéim* There can bé no ■doubt ihat the facts stated, will'-'givp the- Court jurisdiction to ■enfd.rtain the bill for an account. V *Theídéféndant was the bailiff,ip technical- language, of thed£oim,pfiiiaants, against whom .thejiatfcient common law action-$fVa$90.unt could have been maintained, and of which Courts-ófCh'éncery have concurrent jurisdiction; and this would seepi^t.o. bp. a case peculiarly property r a Court of Chancery, as disj^yursenaents of the bailiff, .■or ftgyntj must have consisted of'many items. There is still, hoyvever, a question of some diffidpityi;'jviffiich does not appear to have been presented to the Chancellor'; it is, whether the fact allied, in the bill, of the insolvency of the- defendant, and that he hás' left the State, will authorise -this Court, to injoin the judgment at law, until the account can be taken. Although the question is not free from difficulty,...we are strongly inclined to think the plaintiffs are entitled to the aid of the Court, upoff.the principle upon which it interferes tó prevent irrepa-ble; injury, as in cases of waste. - ■'f • •

íf,the defendant is permitted to’.ejffoKíé his judgment at law, the,.decree in favor of the complainants,' if they are able to- obtain one, will be of no value, whilst* om.the other hand,' if the clairtf of the complainants is unfo¿inde¿ji,..the injury to the defendant, will be merely a temporary .suspension of his rights. If the defendant was a resident of the ¿fate, but about to leave it, the complainants would be eníitléd'tir-a ne exeat, or if he .had: .property in the State, it cohkb bievattached at law, which does not, in principle, differ from. giaht&jg. the injunction in this case and permitting the judgment o.btajped by the defendant, to - stand US a fund, out of which to satisfy apy decree the complainantS'.’ittay obtain.

In Simpson v. Hart, 14 Johns. Rep. 63, the Court'of Errors of Ne w-York, where a bill was Jtédytó‘.set off one judgment against another, considered that the-jn^Ojlyency of one- .of the "parties, was a material fact in gr&ntirig}the relief:' see also, Pond v. Smith, 4 Conn. Rep. 305, which is expressly in point.

Upon the whole, we are of opinion,■ -tfei. although the -com - plainants cannot overhaul the judgment at law, obtained against them, yet, in equity, it sh^Sld stand as a security for their claim against the defendant. • ,;|j

■■ The decree of the Chqhcellor, therefore, dissolving the injunction and dismissing the bill, is reversed, and this Court, proceeding "to render sucji decree, as the Chancellor should have rendered, does hereby order, adjudge and decree, that the injunction granted indíjis cause, to the judgment at law, be continued, and that an account be stated• by the master, be. tween the parties: thatthe.judgmentobtained by the defendan stand as asecurity for such' amount as maybe decreed in. fav„ of the complainants,.on the settlement.of the accounts between the parties, and for this purpose, let the cause be remanded...