Calhoun County MI Archives Court.....Eldred, V. Camp 1837
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 6:56 am

Source: Cases In Chancery
Written: 1837

CASES IN CHANCERY.

Daniel B. Eldred and another v. Camp and Shumway.

Injunction, dissolution of, where equity denied. Where the equity of a bill is 
denied by answer, the injunction will be dissolved on motion (a.); and so it 
will be if it is shown by special plea that there is no equity in the bill.

Return of execution: Creditor's bill. For the purposes of a creditor's bill an 
execution returned by the sheriff that he had "property on his hands for want 
of bidders," is insufficient. (b.)

Motion to dissolve an injunction.

This was a creditors' bill in the usual form, setting forth that the 
complainant, Daniel B. Eldred, recovered against the defendant Camp, and one 
Boville Shumway, two judgments in the circuit court for the county of Calhoun, 
and that executions had been duly issued on said judgments, delivered to the 
sheriff, and returned unsatisfied; that the sum of $621.28, with interest from 
November 10, 1838, over and above all just claims by way of setoff, or 
otherwise, was, at the time of filing the bill, due to the complainant, Daniel 
B. Eldred, on the judgments.

An injunction was granted.

The defendant Camp put in a special plea to the bill, in which he admits the 
recovery of the judgments, the issuing of the executions, the delivery of the 
same to the sheriff, and the amount due as stated in the bill, and then 
proceeds: "Yet this defendant severally pleads in bar to the said 
complainants' said bill of complaint, and says, that after the issuing of the 
two executions above mentioned and described, on the said two judgments above 
mentioned, with the commands, indorsements, and directions above set forth, 
and the delivery of the same to the said sheriff of the county of Calhoun, in 
the lifetime of the said two executions, and before the return day thereof, to 
wit, on or about the 30th day of August, 1839, the said sheriff of the said 
county of Calhoun, to wit, Loren Maynard, by his deputy, Solomon Platner, by 
virtue of said executions, and the said indorsements so made thereon, as 
aforesaid, levied upon and seized a large quantity of real estate as the 
property of this defendant and the said Boville Shumway, the defendants in the 
said executions, which said property is described as follows (describing the 
land); and this defendant further severally says, that after such levy and 
seizure of the aforesaid described lands and real estate, by the said sheriff, 
by virtue of said two executions, to wit, on the said 30th day of August, in 
the year last aforesaid, he, the said sheriff, by his deputy above named, 
caused a notice of the sale of said lands and real estate to be published in a 
newspaper called the Calhoun County Patriot, to take place on Friday, the 
first day of November then next, at the court house in the village of 
Marshall, at one o'clock in the afternoon of that day; and that afterwards, 
and on the sixth day of November, 1839, the said sheriff of the said county of 
Calhoun, by his said deputy, above named, returned the said two executions to 
the clerk of the said circuit court, out of which court the same were issued, 
with a return indorsed upon each thereof, and signed by the said deputy 
sheriff, that he returned said executions (property on his hands for the want 
of bidders; which executions were each of them then and there filed by the 
said clerk, and the aforesaid return of the said sheriff, entered by the said 
clerk in the book of records kept by him, the said clerk, for that purpose, 
pursuant to the provisions of the statute in such case made and provided. And 
this defendant further says, that the above mentioned and described executions
are the only executions that have been issued upon the said two judgments, and 
that if any such return as is specified in said complainants' said bill of 
complaint was ever made on said two executions, or on either of them, by the 
said sheriff of the said county of Calhoun, or his said deputy, the same was 
falsely and fraudulently made, by the aid, advice or procurement of said 
complainants, or their solicitor or attorneys, after the said executions had 
been so returned by the said deputy sheriff, with such return thereof indorsed 
thereon and signed by him, as above specified, and after said executions had 
been so filed by the said clerk, and the return thereof so entered in the said 
book of records, as aforesaid, without the knowledge or consent of this 
defendant, or the said Boville Shumway, and without any leave for that purpose 
obtained from the said Calhoun county circuit court. All of which matters and 
things this defendant does aver and plead to the said complainants' said bill 
of complaint, and humbly craves whether he shall make any other or further 
answer to the said bill of complaint."

This plea is verified by the oath of the defendant pleading the same.

The defendants, upon filing the plea, moved to dissolve the injunction. The 
motion came on for hearing at the January term, in the third circuit.

Lee and Pratt, in support of the motion. 
Sandford and Bradley, contra.

The Chancellor.—Where the equity of the bill is denied, the injunction, on 
motion, will be dissolved; and where it is shown by a special plea that there 
is no equity in the bill, it is the same, so far as regards the motion to 
dissolve, as though the equity of the bill were fully denied by answer.

A creditor's bill proceeds upon the ground that the complainant has exhausted 
his remedy at law, and the regular return of the execution unsatisfied, by the 
proper officer, is evidence of that fact. Here, it appears from the plea that 
the executions were not returned unsatisfied, and the facts set up in the plea 
are not denied. This defeats the equity of the bill, and the injunction must 
be dissolved. 

Injunction dissolved.

--------------------
(a.) The answer, however, must be full and satisfactory, and even then the 
court may refuse to dissolve if the effect might be to deprive the complainant 
of all benefits he might derive from succeeding in the suit. Attorney-General 
v. Oakland County Bank, Wal. Ch., 90. An injunction will not be dissolved on 
an answer admitting the equity of the bill, and setting up new matter as a 
defense. Ibid. Affidavits will not, as a general rule, be allowed to be 
substituted for an answer for the purposes of this motion, though there may be 
exceptions. Sacket v. Hill, 2 Mich., 182.

(b.) The return of an execution unsatisfied, for the purposes of a creditor's 
bill, cannot be made before the return day. Smith v. Thompson, Wal. Ch., 1; 
Beach v. White, Wal. Ch., 495; Williams v. Hubbard, 1 Mich., 446; Thayer v. 
Swift, post, 430. A return unsatisfied by order of the plaintiff is 
insufficient. Williams v. Hubbard, Wal. Ch., 28.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

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