Christie v. Bogardus — 5 Sarat. Ch. Sent. 42

Majority

p. 42

John D. Christie and wife v. Jacob E. Bogardus et a l.

G. F. Comstock, for complainants;

Ben Johnson, for de-Pendants.

Headnote

Seeurity orde-posit, on obtain-May^rooeeci w tQgszt fejy.

Application to set aside an injunction for irregu- 1 * ■ j o The chancellor decided that although, in a suit to stay proceedings at law in a personal action, after judgment, the chancellor or vice chancellor before whom the bill is filed has power'to dispense with the actual deposite of the amount of the judgment and costs, upon any sufficient cause shown, and to take a bond with sureties for the payment of the judgment, yot that even in that case the complainant must give another bond for the payment of the damages and costs which may be awarded in this court. Or the penalty and condition of the other bond must be enlarged so as to conform to that requirement of the statute also.

Thai in no case can an exparto injunction be issued to stay the plaintiff in a judgment from proceeding against the judgment debtor or his property without an actual deposite of the amount claimed to be due, and giving the bond with sureties for damages and costs; or the giving of proper security for the payment of the judgment and for the damages and costs which may be awarded in this court.

That where the whole or part of a judgment has been paid and the plaintiff therein is proceeding to collect the whole

p. 43

aiKouBi, the remedy of the defendant is to make a summary .application to the court in which the judgment was recovered, 'Or if it is necessary for him to appiy to this court to stay the proceedings on the judgment he should state the fact of such payment in his bill, and swear to it, and give the adverse parity notice of as application for an injunction.

That upon such an application, to authorize it to dispense •with any part of the deposit or the giving of security is lieu .thereof, tae court must be satisfied beyond any reasonable .doubt, that the part of the amount of the original judgment as 4o which neither security or deposite is required, is actually paid a ad satisfied.

That a bond for the damages and costs which may be awarded against the complainant, can to no case be dispensed with, upon the granting of a preliminary injunction to stay proceedings at law upon a judgment; although such injunction is granted upon a special application to the court, and japón the hearing .of both parties.

Injunction set aside, with costs to be taxed.