Ward v. Whitfield

Citations

• 64 Miss. 754

Syllabus

<p>1. Chancery Jurisdiction. Bill of injunction. Money of defendant in hands of sheriff. Case in judgment.</p> <p>L. filed a bill in chancery, alleging that she held a judgment of the circuit court against A.; that execution had been issued on the same and a return of nulla bona made thereon; that A. is insolvent; that the sheriff of the county holds in his hands certain money belonging to A., and collected by him under process of the chancery court, and if the same is paid over to A., L. •will be prevented from collecting her judgment. A. and the sheriff were made parties defendant to the bill. Held, that the bill warrants the interposition of a court of chancery to restrain the sheriff from paying over the money to A., and to subject the same to the payment of L.’s judgment.</p> <p>2. Same. Return of “nulla bona” before return-day. Bight of creditor to pursue equitable assets.</p> <p>And the fact that in such case the return of “nulla bona” was made some time before the return-day of the execution does not affect L.’s rights. If there was no property subject to the execution while it remained in the sheriff’s hands, it is not to be presumed that the condition of the debtor would be changed before the return-day. A creditor is not bound to desist from an effort to subject the equitable assets of his debtor in the hope or expectation that he may by some chance thereafter acquire legal assets.</p> <p>3. CHANCERY PRACTICE. Amendment of bill without leave. Ratification by court.</p> <p>The refusal of a chancellor to strike out an amendment to a bill because leave to file the same was not first obtained is equivalent to having granted previous leave.</p> <p>4. Same. Amended bill. Dismissal of original bill.</p> <p>Where an injunction is granted on an original bill which is defective, but is afterward so amended as to be cured of the defects, it is proper for the court to refuse to dismiss the original bill.</p> <p>'5. Same. Appeal from an interlocutory decree. When to b