Opinion
October 2, 1821.
Affidavit and petition for a writ of injunction dated September 22, 1821, and presented this day.
The affidavit stated that Finnemore had executed a judgment bond to the defendant for the payment of a sum of money, that the defendant had caused a judgment to be entered on said bond and sued out a writ of fieri facias. It was also stated that Pearson was indebted to the plaintiff in a sum of money due to him for fees as a witness in the trial of a suit at law; also that plaintiff had recovered before a justice of the peace a judgment against the defendant as administrator of one Bostick; also that the defendant was indebted to plaintiff for a parcel of hay sold to him; also that Pearson had been a constable and had by virtue of several execution processes against other persons received money of the plaintiff's and had not paid it over to him, or was indebted to him on account of such executions. It further stated that Pearson by written directions to the sheriff had authorized him to delay proceeding on such fieri facias. A copy of such directions was annexed to the affidavit. There was also annexed to the affidavit another note or letter sent to the sheriff by Pearson dated two or three days after, requiring him to proceed on the fieri facias for that Finnemore would not settle with him.
A writing of which the following is a copy, was handed to Finnemore to be shown to James Rogers, Esq., his counsel, which was signed by the Chancellor.
THE CHANCELLOR is not satisfied to order the writ of injunction for the following reasons:
Because Mr. Finnemore has a remedy at law for all the matters of discount stated in his affidavit and petition.
Then as to the particular articles:
1. As to the fees said to be due to Mr. Finnemore as a witness. These it is presumed are included in the taxation of costs; and some transcript from the docket should be annexed to the affidavit to show that such fees are due to him and the amount. Beside, it may be that these fees are barred by the Act of Limitations. The time when they accrued is not given; and though the suit was decided against Pearson it does not necessarily follow that he was bound to pay the witnesses. He may be answerable to the other party in the suit for these costs.
2. The judgment against Pearson, administrator of Bostick. This of itself, without some particular circumstances, is not a proper set-off, being a debt due in another right. And further the judgment has been discharged by a receipt, which makes the case more difficult.
3. The hay is properly chargeable in account; and a copy at least of the charge should be exhibited.
4. The executions and returns should be exhibited to show that Pearson is liable.
Instead of an affidavit I wish to see a bill, especially as the complainant has a complete remedy at law for all his demands; and because some of them may not in any form be recoverable.
The difficulty which the complainant may be in by reason of the execution against him does not form a sufficient ground for the interposition of a court of chancery. It is not shown that Pearson is insolvent, and that without arresting his proceeding at law, the complainant will lose his demands.