Storm v. Badger

The Chancellor.

This is not a case for compelling the complainant to elect. The object of the suit in this court is to aid the execution at law ; and not as a mere substitute of an equitable instead of a legal remedy. To compel an election, therefore, the defendant must show that the complainant is proceeding in each court in a manner in which if he succeeds, he will obtain satisfaction of his whole debt. Here the debt is about $900, and it is not alleged that the defendant Badger has property to exceed $90 or $100 which can be reached by the new execution, even if such property was still in his possession when that execution was issued. And there has been no receiver appointed in this suit, who could protect that property from being levied on by other creditors notwithstanding the injunction. Compelling the complainant to elect, would, therefore, be to deprive him of the power of reaching that part of the debtor’s property by his execution, without any certainty of obtaining satisfaction of his whole debt by his suit in this court; even if he succeeds in reaching other property here. To authorize the defendants to come here for such relief as is asked for by this motion, they should show that the complainant, by his subsequent execution, had levied upon, or at least that he was able to levy upon, property sufficient to satisfy his whole debt and costs, on a sale of such property by the sheriff. (Cuyler v. Moreland, 6 Paige’s Rep. 273.) If the defendant, L. Badger, establishes the truth of his plea, the bill, as to him, will be dismissed ; and if he fails, the complainant will not be permitted to obtain a double satisfaction of his judgment. Upon the final hearing, if either party desires it, a reference will he directed, of course, to ascertain the amount then due on the judgment.

The motion in this case is therefore denied, with costs.