
    William Sugg et al., Appellants, v. John B. Thrasher, et al., Appellees.
    1. Equity: unconscibntious defence. — A court of equity -will not permit a party to avail himself of an unconscientious advantage, obtained by his own act, and without the fault of his adversary.
    2. Statute of limitations : effect of injunction as to. — A debtor, at whose instance an injunction has been issued, and kept in force for seven years, restraining the collection of a judgment against him at law, will be enjoined by a court of equity from setting up the Statute of Limitations as a defence to the ' collection of the judgment.
    3. Injunction : violation of. — It is a violation of an injunction restraining the collection of a judgment, to issue an execution thereon, and place it in the hands of the sheriff, although no sale takes place under it.
    Appeal from the Superior Court of Chancery. Hon. Charles Scott, chancellor.
    
      John B. Ooleman and George V. Moody, for appellants.
    The demurrer should have been sustained and the cross-bill dismissed, because it is apparent upon the face of the bill, and of the exhibits referred to, and made a part of it, that the bar of the statute has attached to the judgment, in consequence, alone, of the laches of the complainants.
    The injunction, which is made a part of the cross-bill, neither restrains the complainants from issuing execution, suing out a scire facias, or bringing an action of debt on the judgment. It enjoins a levy of execution on property of the estate, and all further proceedings in the premises.
    Now, what is the meaning of “ further proceedings in the premises ?” It means, of necessity, proceedings to coerce the payment of the judgment. The collection of the money by execution, and the levy of the execution, are enjoined — nothing more. The language of the injunction is to be construed in connection with its object. The specific command, restraining a levy of the execution, is the “ premises,” referred to. The issuance of execution is not enjoined — only its levy; and, of course, a sale under it, as there can be no execution sale without a previous levy.
    The complainants might, without any violation of the injunction, have - issued execution on their judgment after every term of the court; they might have sued out as many seirefacias as they pleased, and they might have brought an action of debt at any time during the pendency of the case in the chancery and higher courts.
    But even had the injunction gone the full length of prohibiting the complainants from issuing execution, from suing out a scire facias, or from bringing an action of debt — had all these acts been specifically enjoined, and the complainants tied hand and foot, they had it in their power, at any moment, to obviate all difficulty, in two ways:—
    1. By an application to the chancellor to modify the injunction, so as to allow them to take such steps as might be necessary to prevent the bar of the statute attaching to their judgment; which modification the chancellor would have been bound to allow.
    2. By disregarding the injunction and taking the necessary steps to keep the judgment alive. 16 Wend. 572; 2iobertson v. Alford, 13 S. k M. 514.
    Is it not manifest, then, that the bar of the statute has attached to the judgment, in consequence, alone, of the laches of complainants ? See, also, Bacon Ab. tit. Limitation, E.
    But, suppose that there had been no laches on the part of the complainants, still they are not entitled to relief, because this court has decided, and it is now the settled law of the state, that the pendency of an injunction does not stop the running of the Statute of Limitations, or suspend its operation. Robertson v. Alford, 13 S. & M. 512; Ingraham v. Regan, 1 Cushm. 224.
    And in conformity with the principle upon which the foregoing decisions have been made, this court has still more- recently decided, that courts of equity, as well as courts of law, are restricted from engrafting on the Statute of Limitations any equities, or any savings, not embodied in the statute itself. Kilpatrich v. Byrne, 3 Cushm. 581; Buster v. Qraig et al., 5 lb. 628.
    An effort will be made to sustain this bill, on the ground that it is one of the peculiar attributes of a court of equity, to interpose, by injunction, to prevent a party from making an uncon-scientious defence to an action at law.
    Many English, and some American authorities, will be cited in support of this position, and cases will be read, similar, in many respects, to the one at bar, and where the unconscientious defence, which was enjoined, was, as in this case, the Statute of Limitations.
    Without proceeding to a special examination or analysis of these cases, they can be disposed of in solido.
    
    They are all based upon the hypothesis, that the defence of the Statute of Limitations is not a meritorious defence; that the statute is one which courts, and more especially courts of equity, should look upon with disfavor; and that, whenever an opportunity offers to take a case without the operation of the statute, by engrafting upon it an equitable saving, not embodied in it by the legislature, a court of equity should never let that opportunity pass.
    This view of the statute is not taken by our courts. This coiu’t, in a series of adjudications, recognizes it as a wise and beneficent statute — as a statute of repose : as one, whose provisions and spirit it is the duty of the courts faithfully and liberally to carry out; and as one, upon which neither courts of equity nor courts of law have any right or power to engraft savings, equities, or exceptions not embodied in it by the legislature. Smith v. Westmoreland, 12 S. & M. 665 ; Henderson v. Ilsley, 11 lb. 9; Robertson v. Alford, 13 lb. 509; Ingraham v. Regan, 1 Cushm. 224; Kilpatrick v. Byrne, 3 lb. 581; Butler v. Qraig, lb. 629.
    Now admit, to the fullest extent, the power and the duty, if you please, of a court of equity to interpose, by injunction, to prevent a party from availing himself at law, of an unconscientious de-fence ; we have shown that the defence of the Statute of Limitations, is not, per se, an unconscientious one; that a court of equity has no right to treat it as an unconscientious defence; and that, unless there are circumstances surrounding the case, which circumstances would render it inequitable and unconscientious for the defendant to interpose the defence, a court of equity has no power to enjoin, it. That we may not be misunderstood, our position is this: The defence of the Statute of Limitations, is both at law and in equity, to be treated as a valid, just, meritorious, and proper defence; it is to be put upon the same footing with all other defences which the law affords to a party litigant for his protection ; and it is to be treated with the same favor with which the defences of payment, release, failure of consideration, usury, &c., &c., are treated.
    The question then arises, are there any circumstances attending the ease presented by the cross-bill, which render it unconscien-tious on the part of the defendants to plead the statute to the 'scire facias ?
    
    We think we have already demonstrated, that although the cross-bill alleges that the injunction prevented the conrplainants from keeping their judgment alive, it had no such effect. The injunction, as well as all the proceedings in the original case, are referred to, and made part of the cross-bill, and the injunction, as we have shown, only restrains the levy of execution and sale of property. The allegation, therefore, of the bill being contradicted by the exhibits referred to in support of it, is not confessed by the demurrer.
    We have also, we think, shown, that even had the injunction prevented the complainants, or should tins court decide that it really did prevent the complainants from taking the necessary steps to keep their judgment alive, still it would have been modified at any moment, upon application to the chancellor, and that the judgment has become barred, not by the act of the defendants, but by the culpable laches and remissness of the complainants.
    Where then, we ask, are the peculiar circumstances, attending this case, which would render a plea of the Staute of Limitations to the scire facias, either inequitable or unconscientious ?
    
      S. T. Mlett, for appellees.
    1. This is a plain case for relief in the court below, on the cross-bill. The complainants went into equity for an injunction — kept it in force until now, when if he can turn the party bach to law, the Statute of Limitations will bar the debt.
    
      Tbe court being in possession of tbe cause for one purpose, will retain it for all purposes of substantial justice between tbe parties. But it is asked to dismiss tbe cross-bill, expressly in order that tbe Statute of Limitations, may be allowed to run: surely it will do no sucb iniquity.
    2. If it is regarded in tbe light of an original bill for relief, it is sustainable on tbe ground that tbe remedy at law bas been lost by tbe delay caused by tbe wrongful conduct of tbe opposite-party.
    Where a party applies to a court of equity, and carries on an unfounded litigation under circumstances, and for a length of time, that .deprives bis adversary of bis legal right to proceed at law, oñ account of tbe Statute of Limitations having run in tbe intermediate time against it, courts of equity will supply and administer a substitute of tbe original legal right, &c. 2 Story, Eq. 679, § 1316, a; 906, § 1521; Bond v. Hopkins, 1 Sebo. & Lef. 413, 431, 434; Pulteny v. Warren, 6 Vesey, jr. 73; Hovendon v. Ld. Annésley, 2 Sebo. & Lef. 630; MHenzie v. Powis, 7 Brown, Par. Cas. 328; Bast India Go. v. Qampion, 11 Bligb. 188.
    Whenever a party is prevented by an order of court, from proceeding to establish bis right at law, it is tbe duty of tbe court to take care that no injury shall arise to him, in consequence of sucb interference. O’Bonnell v. Brown, 1 Ball & Beat. 263; Bond v. Hopkins, 1 Sebo. & Lef. 441.
    At law, interest is not allowed beyond tbe penalty of a bond. Wild v. Clarkson, 6 Tenn. R. 303; and in general, tbe same rule prevails in equity. Olark v. Betón, 6 Vesey, 414. But where tbe creditor bas been prevented from going on at law, or is kept out of bis money, by tbe wrongful conduct of the debtor, a court of equity will give relief for interest beyond tbe penalty. Buval v. Terry, Shower, P. C. 16; Grant v. Grant, 3 Sim. 340, (5 Eng. Cb. 144); Hale v. Thomas, 1 Vern. 349. This case of Hale v. Thomas, was a case of delay caused by injunction.
    
    3. Tbe bill is sustainable, as an original bill, to enjoin tbe party from pleading tbe Statute of Limitations at law. It is a very familiar exercise of equity jurisdiction, to restrain parties from availing themselves of a legal advantage or defence, unconscien-tiously obtained, or insisted on. 2 Story, Eq. 218, § 903; Qhamp-lin v. Dotson, 18 S. & M. 553.
    The Statute of Limitations will not be allowed to be pleaded at law, where it is against conscience. Bond v. Sophins, 1 Soho. & Lef. 413; Sale v. Thomas, 1 Yernon, 349; Duval v. Terry, 1 Shower, P. C. 16; Benche v. Thorneycraft, 1 Brown, Ch. Cas. 289; MKenzie v. JPowis, 4 Brown, P. C. 328; lb. 92, (2nd ed. by Tomline); Mitchell v. Oue, 2 Burr, 660; 2 Atkins, 381, 388; 1 Yesey, 289; 2 lb. 476; Cruise on Pines, 174, 366 a.; Pulte-ney v. Warren, 6 Yesey, 73.
    The case of Byrne v. Kilpatriclc, 3 Cushm. (25 Miss.) 571, does not affect the question. The point whether the court will, in a proper case, enjoin a party from setting up the statute, was not presented, nor decided, nor were authorities cited in regard to it. All that case decides is, that an injunction does not stop the running of the statute, and that the court cannot by construction, engraft exceptions upon it, not provided by the legislature.
    We do not dispute that, and perhaps our bill would not be sustained, in the view in which we are now considering it, if the law were not so. Por it is precisely because the injunction does not operate to stop the statute, that we come here, on grounds affecting the conscience of the party, to restrain him from using the advantage which the law gives him.
    There is no legal defence, of whatever character, so absolute and sacred, that a court of chancery may not take it away from the party, upon the equitable principle we invoke. The only question is, whether, under the circumstances of the case, it would be unjust and inequitable, to allow him the benefit of his legal advantage; and if so, the court will restrain him, whether the defence arises under an act of the legislature, or otherwise.
    What answer is given to our demand for relief?
    1. It is said, the injunction issued, did not restrain us from executions, suits, or writs of scire facias.
    
    A fair construction of the writ, does restrain all proceedings. At any rate, the court would not encourage parties to speculate how far they might go in violation of injunctions. But in this case, the-prayer of tbe bill, and thejfoi of tbe judge, cover everything.
    Though tbe writ is not so full as tbe fiat, yet if a party bas actual notice of an injunction, or of tbe order for it, by being in court where it is made, or from information, be may be punished for a breach of it. Kempton v. Eve, 2 Yes. & Bea. 350; Van-sanden v. Eofe, 2 Jac. & Walk. 264; 14 Yes. 136; MKeill v. G-arratt, 5 Bond. Jur. 836; 1 Smith’s Ch. Pr. 425, note a.; Ship v. Wanoood, 3 Atkins, 564; Anon. Ib. 567; Eearn v. Tennant, 14 Yes. jr. 136.
    2. That we have been guilty of laches — we ought to have asked for a modification of tbe injunction.
    Tbe facts are: — the fiat is dated November 7th, 1845 — the bill filed November 24th, and, at Eecemher term, 1845, a motion to dissolve was submitted, and held under advisement until June, 1848, when it was sustained, and an appeal instantly taken. During tbe latter part of tbe term of tbe statute, the' case was in this court; tbe chancellor could not modify what be bad already destroyed, and this court could only affirm or reverse bis decision.
    3. We might have disregarded tbe injunction, and suffered fine and imprisonment for so doing.
    Will this court encourage parties to tbe disobedience of lawful process, or will it save him from wrong, by reason of bis obedience to it ? Which is tbe best principle for the court to establish ?
   Fishek, J.,

delivered tbe opinion of tbe court.

This is an appeal from a decree of tbe Superior Court of Chancery, overruling tbe appellants’ demurrer to tbe appellees’ cross-bill.

Tbe complainants, as administrators of tbe estate of Duncan H. McIntyre, deceased, filed their bill in tbe Superior Court of Chancery, for tbe purpose of enjoining tbe appellees from further proceedings to enforce a judgment recovered against tbe complainants as such administrators, in tbe Circuit Court of Claiborne county. Tbe bill was filed in November, 1845. Tbe defendants appeared to the December term following, of tbe court, filed their answer, and moved to dissolve the' injunction; and tbe chancellor taking the motion under advisement, no decision was made until the June term, 1848, of said court, when the motion was sustained and the injunction dissolved. The complainants, at the same term of the court, prayed an appeal to this court. The cause not being regularly reached on the docket until March, 1853, the injunction was, by virtue of the appeal, continued in force until that time, when the decree of the chancellor being affirmed, the cause was remanded to the court below.

- The bar of the Statute of Limitations of seven years, (that being the period which had elapsed since the last execution on the judgment,) having become complete, this cross-bill was filed, praying that the plaintiffs in the judgment shall have a decree for the balance due upon the judgment; or, if this relief be thought improper, that then the defendants be enjoined from setting up the -Statute of Limitations, as a defence to further proceedings to enforce the judgment by execution, or otherwise, at law.

The general rule, as argued by counsel, that the Statute of Limitations, in all cases where it is applicable, is regarded as a meritorious defence, may, to the fullest extent, be admitted. The same may be said, in respect to the argument that it is a defence which may avail a party as well in equity as at law; and it may further be admitted, that a court of equity will not lend its aid to deprive a party of the advantage of this defence, if fairly obtained. It may also be conceded, that if the advantage of this defence has arisen from the laches of the creditor, and not from the conduct of the debtors, that it is their privilege to make it, and it is not within the province of the court to question its propriety, on the score of morality.

But while these principles must be admitted as general rules, there are others of equal, if not of greater potency, which must not be overlooked under the peculiar circumstances of this case.

It is a familiar principle of equity, that a man shall not be allowed to avail himself of an unconscientious advantage acquired over his adversary. The inquiry in this case naturally forces itself upon the mind, why was it that the plaintiff at law delayed this long period to enforce his judgment ?

Tbe response is, that tbe debtors, by tbe means wbicb they employed, forced bim to delay. It was not an act of choice on bis part, but one of legal compulsion. He but obeyed tbe process of tbe court, issued and kept in operation by tbe debtors, in tbe fruitless litigation wbicb they carried on for this long period of time. That wbicb is forced upon a party, cannot be said to be bis voluntary act. He ceased to prosecute bis remedy on bis judgment, because such was tbe command of the process, which issued in pursuance of tbe prayer of the debtors.

But it is said that be might have proceeded to levy under bis execution, though be was enjoined from selling. Such is not tbe language or tbe object of tbe injunction. If tbe execution could go into tbe bands of tbe sheriff at all, it would be for complete execution, and not for part. It is not to be supposed that tbe plaintiff was required, or even allowed to take out bis execution, place it in tbe bands of tbe sheriff, and stand by and inform bim bow far to proceed, or bow far be might proceed without incurring tbe penalties wbicb tbe court would be bound to inflict for a contempt of tbe injunction.

But it is not necessary to dwell on this point. It is sufficient to know that tbe plaintiff only obeyed tbe process in refraining from enforcing bis judgment; and it certainly comes with a bad grace from parties who availed themselves of all tbe means known to tbe law, to continue this process in full operation, now to complain of tbe plaintiff’s obedience to that wbicb he dared not, under wliat ought to have been heavy penalties, to disobey. Tbe question then simply resolves itself into this. If tbe plaintiff voluntarily omitted to prosecute bis remedy until tbe bar of tbe statute attached, it is bis misfortune, and tbe debtor is at liberty to set up tbe defence, as in any other case. If, on tbe contrary, tbe plaintiff’s failure in this respect must be attributed to tbe obedience wbicb be was bound to pay to tbe injunction, tbe failure must be regarded as tbe legitimate result of tbe act of tbe debtors, and they cannot in conscience interpose tbe statute as a defence. Not a doubt can exist that it was alone tbe injunction, which caused tbe delay in issuing execution on tbe judgment; and such being the fact, tbe case falls completely within the rule of equity already stated.

But it is said that the court will not by construction engraft upon the statute any other exception, than such as has been clearly expressed by the legislature. This rule is admitted to the fullest extent. The question is not one of either legislative or judicial exception, arising by construction of the statute, but whether, under the facts of the case, it is a defence of which the defendants can conscientiously avail themselves. It is admitted to be a de-fence at law, but such a defence as a court of equity acting upon the consciences of the parties will not permit them to make. Not that the defence of the Statute of Limitations is of itself uncon-scientious or immoral, but that it is rendered so by the facts and peculiar circumstances of the case.

The right asserted was as clear as it was when the plaintiffs first encountered the injunction, and the object is, to leave the parties, with respect to their rights, where they stood when the debtors commenced their litigation in the Superior Court of Chancery. No principle upon which the Statute of Limitations rests is violated by this course. Admit that it is what counsel say it is, a statute of repose, every principle of justice and sound policy forbids that parties should by improper means, or by abusing the process of the law intended for salutary purposes, bring themselves within its operation, and enjoy the advantage thus unrighteously acquired. To sustain such a principle, would be but holding out inducement to litigants to commence and protract, by artifice or other unauthorized means, vexatious litigation, with a view of finding immunity ultimately under the statute. When parties have fairly acquired this defence by regular course of things, they are entitled to the benefit of it, if they choose to make it, but they ought never to be encouraged to start prematurely in search of it, by protracting either unfounded or useless litigation.

Decree of the court below affirmed.

HaNDY, J., concurred.

Smith, C. J., dissented.

A petition for a re-argu¿ient was filed, but the re-argument refused.

Note. — The case of Byrne v. Kilpatrick, has been cited and relied on as authority in this case. Though that opinion is published as the opinion of the whole court, it is nevertheless only the opinion of the learned judge who delivered it, and of the chiefjustice. Fisher, J., at the time dissented, and gave his reasons from the bench for such dissent.  