The Columbia herald. [volume] (Columbia, Tenn.) 1850-1873, 1872-11-15
.No polls opened. Radical. independent
CHANCERY DECIsIONs-No. 4.
D1oKLE vs, WooDRUFF.-f.slaski 1S7

DICKLE vs. WooDRUFF.-fhsJGski 1870.
The record in this cause presents the
following state of facts; Complainant,
Diekel, obtained a Judgment against
Lambeth Il Barnes, before justice of
the peace, ON the 18th of August, 1870.
Defendant, Woodruff, obtained his judg-
ment against the same parties on the
10Th, and defendant Akers got his judg-
ment on the 18th of August, 1870. All
these judgments were recovered against
| the same parties and before the same JUS
| tice. None of these were stayed, but
on the 18th, ono day before the time al
lowed by law for the stay of execution
upon compliments judgment had ex-
pired, the Defendants Woodruff and
Akers, swOre out executions upon their
judgments, which were rendered as
above stated after compliments; which
executions, so sworn out, came to the
hands OF an officer, who levied the same
on the goods of Lambeth & Barnes, and
held and claimed them as against COM
plainant. ThereupOn complainant filed
this bill, seeking to have said proceed
ings declared irregular and void; to
have said property 80 levied upon, at
tached, and to have defendants eDjOined
from disposing of the same. The bill
further seeks to have compliments
I1But W priority Vi SotlSidCttOu Out VI
said property declared.
Tothis biil.the defendants put in de-
murrer and of course this admits the
fact alleged in the bill to be true, but
denies their suffiency in law to sustain
the bill. Let us then examine the alle-
cations of the bill and the legal points
growing out of them.
LIST. 1t appears, from the bill, that the
affidavit made by defendants in order
to get out their executions before the
expiration of the time allowed by law
for entering stay Of execution, was to
the effect, that they were fearful il exc
cutions were not issued forthwith, they
would lose theird debts, &c. Now the Code,
at section 5000 and following, express
~ provides how an execution in such
cases shall issue, and also what the affi-
davit must state, to wit: That the de-
PENDANT is about fraudulently to dispose
of, conceal or remove his property, to
the endangering of the plaintiff g debt"
Was the affidavit in thus case made in
compliance with the law? Was it even
substantially so? think not. Such
proceedings, for the protection of defen-
dants, must be regarded strictissimi .jH-
ris, otherwise 1t might, unjustly and in
euuitably deprive any defendant of the
advantage of the stay law expressly pro-
vided for his benefit. If, therefore, de-
PENDANTS believe in fact that Lambeth
and Barnes were about to make fir aud
ulent disposition of their property, they
should have prepared their affidavit, If
not in the very language of the statute,
at least in its substance. This they have
not done. The affidavit made is one al
most any judgment creditor might take
safely and conscientiously, to wit
q 81. L. 10 fol
out, he y i'll lose lis debt. The law in
tends more than this and requires more
than this. The judgment creditor must
state in the affidavit the grounds of his
fears-he must state what the Judgment
debtor is about to do, so that the justice
NAV see, under the law, he car issue the
execution. Without these compliances
with the law, the court is of opinion
the proceedings would be substantially
and fatally detective. And the court is
further of the opinion that the process
was erroneous, and, therefore, only
voidsble, but that it was irregular and
void, and therefore, mere nullity, as
settled in the case Of Waite vs.. Dolby,
8. Humph. r. 400.
I'd. But it is insisted that this court
has no Jurisdiction of the case, and the
proper forum for redress is the Circuit
COuib uPOu CcI te7u' ouu cUPCtooVo~os
1 do not hold this view. While it is
true that the defendantin the judgment
might have availed himself in this way
of irregularity in the proceedings, yet
it is equally true that the complainant
to this bill could not have resorted to
the same remedy. The officer seeking
to levy his execution is different one
from the one who levied for defendants
and who holds the property to the ex-
clusion of the first named officer. How
could complainant, by any proceedings
known to the law, under the circum-
stances and facts OF the case, have
brought the matter into the Circuit
Court? He must have remedy some-
where, and it can be found in this court.
How else is he to remove the obstruc-
tons thrown in his way by defendants
levy and seizure? The judgment debt