Jewell v. Thorn ( 1851 )

The judgment of the court was pronounced by

Eustis, C. J.

This is a case in which a defendant in execution obtained an injunction against the selling of his property* under execution, on the ground that a partial payment on the judgment had been made, which was not credited on the execution. An informality in the execution was also alleged ns one of the grounds for staying the proceedings. The district judge considered the grounds insufficient for enjoining the proceedings for the e’ntire amount, allowed the credit, and amerced the party and his security on the injunction bond in twenty per cent damages on the balance, under the statute.

We consider that there was no ground whatever for arresting the proceedings for the amount due on the judgment. It was the duty of the defendant in execution to pay that amount before he sought to obtain relief by way of injunction. Cobb and Wife v. Hynes, 4th Ann. 150. Morgan v. Driggs, 3d Ann. 125. Rowley v. Kemp, 2d Ann. 360. No damaages have been asked by the appellee for a frivolous appeal.

The judgment of the district court is therefore affirmed, with costs.