Anderson v. Walton

1 Free. Ch. 347

Opinion

The Chancellor.

This is a motion for leave to proceed to trial in an action of ejectment, which the complainants have enjoined upon the allegation, that their title is purely equitable, which they ask may be enforced against the defendants in this court. The complainants do not pretend that they have any defence at law, and no discovery is sought to aid any such defence. There is no reason suggested by the bill why the defendants should not be permitted to proceed to trial and judgment at law. They should not be delayed farther than may be necessary to a due assertion of the complainants’ rights. Where a defendant at law transfers the case to this court upon an allegation that his defence is equitable, the plaitiff at law should always be allowed to proceed to judgment, in order that he may have execution thereof without delay, if the defence to his action is not sustained in this court. Eden on Injunctions, 58; Hain v. Schuyler et al. 2 John. Ch. Rep. 140.

Let the injunction be so modified as to allow the plaintiff at law to proceed to trial, with a stay of execution until further order herein.