Lothrop v. Bennet

1 Kirby 185

• Court: Connecticut Superior Court
• Decided: November 15, 1786
• Status: Published

Opinion

By the whole Court.

Chancery, by tbe statute of this state, can interpose only where adequate remedy cannot be bad at law: Here remedy at law might have been bad, for aught which appears from tbe stating, either as to* tbe facts to be proved, or tbe manner of proving them. Action of account would have lain for tbe money collected by Lothrop, and not applied; or tbe execution might have been relieved against, by audita quaerela, and as well after its levy was begun as before.

2. Tbe decree is contrary to tbe course of chancery proceedings, and manifestly unreasonable: It did not leave it optional with tbe petitionee to forego tbe legal advantage of his judgment and execution, or pay the penalty; but it made void tbe execution, and all proceedings thereon, and left him to pay tbe penalty of £30 besides, unless be should get up tbe petitioner’s receipt out of tbe officer’s bands, which he bad no power to do, and tbe doing of which, as tbe other parts of tbe decree were, was of no- consequence to tbe petitioner.