Chambless v. Taber , 26 Ga. 167 ( 1858 )

By the Court.

Lumpkin J.

delivering the opinion.

We must think the injunction in this cáse was improvidently granted.. We concede that the injunction was applied for in time, under the 9th rule of Chancery Practice; that is> thirty days before the Court to which the bill is returnable. The affidavit was made five days before the time had expired. Still it was a dilatory proceeding, considering the length of time this suit had been pending.

But why resort to equity when, from any thing that appears in the bill, the remedy at law was complete ? The defendant does not allege that any discovery is needed to establish his deed. Jesse Harris is dead, and he cannot It does not appear but that the subscribing witnesses to the deed from Jesse to Daniel Harris are in life; or other persons fully able to establish the deed if it ever existed, either in a direct proceeding instituted for that purpose, or to prove its contents on the trial at law, so as to defeat the action of ejectment against the complainant.

Why then resort to Chancery? This is a legal, and not an equitable, defence, and no discovery is sought.

The order of the Court granting the injunction is reversed. Nor should any amendment to the bill be allowed, except upon terms; namely: the payment of cost and requiring the amendment to be made atan early d.ay, so as to prevent delay.

Judgment reversed.