We are of opinion the complainant has mistaken the appropriate remedy in the case, which was by writ of mandamus from the Circuit Court in which the judgment was rendered against the defendants. The writ affords a full and adequate remedy at law. There are numerous recent cases in this court on the subject. [1]
We have been furnished with no authority for the substitution of a bill in equity and injunction for the writ of mandamus. An injunction is generally a preventive, not an affirmative remedy. It is sometimes used in the latter character, but this is in cases where it is used by the court to carry into effect its own decrees as in putting the purchaser under a decree of foreclosure of a mortgage into the possession of the premises. Even the exercise of power to this extent was doubted till the case of Kershaw v. Thompson, [2] in which the learned chancellor, after an examination of the cases in England on the subject, came to the conclusion he possessed it; not, however, by the writ of injunction, but by the writ of assistance. Chancellor Sanford, who adopted the practice in Ludlow v. Lansing, [3] observed that it was not usual before the case of Kershaw v. Thompson, but that he had examined all the cases cited, and that the English cases seemed to warrant the decision. He further observed that if the decision of the late chancellor was in any respect new, the innovation was, in his opinion, jui cious and fit.
The counsel for the complainant has referred to some expressions by the learned judge in the opinion delivered in the case of The Board of Commissioners of Knox County v. Aspinwall, as giving countenance to the remedy by bill in equity; but this is a clear misapprehension. It is there observed, 'that a court of equity is sometimes resorted to as auxiliary to a court of law in obtaining satisfaction of judgments. But no court,' he observes, 'having proper jurisdiction and process to compel the satisfaction of its own judgments, can be justified in turning its suitors over to another tribunal to obtain justice.' We add, that a court of equity is invoked as auxiliary to a court of law in the enforcement of its judgments in cases only where the latter is inadequate to afford the proper remedy. The principle has no application in the present case.
DECREE AFFIRMED.
Notes edit
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