
    Hammond vs. St. John and Wilson.
    When an injunction is obtained to stay the sale of particular property, and does not seek to enjoin the debt of the creditor, or in any way interfere with its collection by the execution of any other property belonging to the debtor, no deciee can be made against the complainant upon its dissolution, for the debt of the creditor.
    When a bill is filed against partners, and one dies during the progress of the cause, no revivor is necessary against the representatives of the deceased partner; but onsuggestion of his death, the suit may be proceeded in against the survivor.
    When a suit is commenced against partners, and one dies during the progress of the cause, if the suit be dismissed because it is not revived against the representatives of the deceased partner, it will be erroneous.
    A judgment against the security of the complainant for costs before execution against the complainant, and sci. fa. against the security, is illegal.
    A court of equity will not in general entertain jurisdiction of a bill to restrain the sale of any personal property, except slaves.
    When the remedy at law is plain and unembarrassed, equity will not interfere.
    This bill was filed in the circuit court of Weakley county, and charges, that the defendants, St. John and Wilson, were partners in trade under the firm and style of Wilson and St. John; that some time in the year 1820, the complainant became the security of Abel Pur-sel, for about the sum of one hundred and fifty dollars; that suit was brought and judgment recovered against complainant and Pursel, for the said sum of $150; that the money was collected of the complainant; that after having paid the debt, he indulged Pursel for some time and then obtained a judgment against him for the debt so paid; that by virtue of this judgment, an execution was issued and levied upon the following property, and the same was sold to satisfy the éxecution, to wit, one black horse, two beds, bedsteads and furniture, ten head of hogs and a bureau; that he, the complainant, be-came the purchaser tor a valuable consideration m July, 1830, at the sale under said execution; that said property paid a part of the execution; that a short time after this sale, he purchased from said Pursel, upon private contract,' in further payment of the^ debt aforesaid, a quantity of com and fodder; that he did not take away any of said property from said Pursel, but permitted the same to remain for the comfort and use of said Pur-sel’s family, until a convenient opportunity for carrying it home; that said Wilson and St. John, with a knowledge that the property belonged to the complainant, had the same levied upon by virtue of an execution issued upon a judgment recovered by them against said Pursel; that the property has a peculiar value in the estimation of the complainant, which could not be recompensed in damages in a suit at law; that he is fearful, before the final determination of this bill,-the said defendants, Wilson and St. John, will leave the State, and that they have no property; that "they knew of complainant’s claim; that Pursel is wholly insolvent; prays an injunction and decree of the property to him.
    The answer of St. John states, that he does not know any thing of the indebtedness of Pursel to said complainant; that the firm of Wilson and St. John recovered a: judgment against said Pursel for the sum of $82 49, on the' 28th of May, 1830; that an execution issued upon this judgment and was levied upon ten hogs, two beds and furniture, one bureau, one candle stand and loom, one stack of fodder, all of which was in the possession of said Pursel, who was exercising the rights of ownership over it; that the complainant, Hammond and Pursel contriving together, to hinder, delay and defraud the defendants of their just rights, after the rendition of said judgment in favor of said Wilson and St. John; and before the same could be levied upon the property of said Pursel, said Hammond, by collusion with said Pursel, caused said Pursel to appear before a justice of the peace for Weakley county, on the 5th day of June, 1830; that there, Pursel then execúted to said Hammond two notes, one for the sum of $99 and one for $50, and had warrants issued upon them on that day; the service of the warrants confessed, and judgments given the same day;. that one of the notes was ante-dated from the 5th of June, 1830, to the 10th of March, 1830; that the claims upon which the judgments were founded in favor of Hammond, were fraudulent, pretended ■ and without any consideration; that it was under the judgments founded upon these claims, that Hammond upon a fi. fa. issued, upon the same day the judgments were given, by the consent of said Purse], had the said property sold; that the whole proceeding was fraudulent and designed to hinder and delay creditors; that in order to defraud, delay and hinder his creditors, the said Pursel who is the broth-in-law of the complainant, pretends to have conveyed to said Hammond, truly, five acres of valuable land, to secure the payment of the said fraudulent and collusive judgments; that the property claimed by said complainant, as purchased at execution sale and by private contract, and the land, was worth more than twice the amount of claimant’s pretended claim; that the respondent does not believe the property belonged to complainant, nor does he believe the complainant ever had any claim, except what he derived from said pretended judgments, and prays a dissolution of the injunction, and that the bill be dismissed. The record further shows, that the circuit court dismissed the complainant’s bill, because Wilson1, one of the defendants, died after the filing of the bill, and that two terms had elapsed after his death, without any steps being taken to bring his legal representatives before the court and revive the bill against them; and gave- judgment against the complainant and his security. From which decree the complainant prayed an appeal the nature of a writ of error to this court. in
    
      A. G. Bondurant, for the complainant.
    
      J. L. Totten, for the defendants.
   Green, J.

delivered the opinion of the court.

This was an injunction to stay the sale of the property in controversy, and not one that affected the debt of defendant, or in any way interfered with its collection, by the execution of any other property belonging to Pursel. Upon the dissolution of this injunction, therefore, no judgment ought to have been rendered against the complainant.

Wilson and St. John were partners in trade, and the survivor might sue and was liable to be sued; upon the death of Wilson, therefore, no revivor was necessary against his personal representatives, but his death might have been suggested and the cause properly proceeded in against St. John as surviving partner. The dismission of the bill for want of having Wilson’s personal representatives before the court, was erroneous. The judgment against the security in the prosecution bond for the costs was unauthorized and illegal. He was not before the court, and can only be rendered liable for the costs, after an execution against the complainant shall fail of satisfaction, and upon being brought before the court by a scire facias.

The decree must be reversed, and the complainant may have a decree against St. John, as surviving partner of Wilson and St. John, for the amount of money he may have paid in discharge of the judgment against him on the dissolution of the injunction, together with interest from the time it was paid by him.

As to the merits of the bill, the case is against the complainant. This court has no jurisdiction to afford relief in such case. The remedy at' law is plain, unembarrassed and adequate. The practice of the courts in this State, in restraining the sale of slaves under circumstances similar to those set forth in this bill, furnishes an exception to the general rule. That exception is founded upon the peculiar character of that description of property.

The judgment on the dissolution of the injunction, and the judgment against the security for costs, will be reversed; but because the court has no jurisdiction to afford relief as prayed for in the bill, it must be dismissed, the complainant paying the costs of the court below, and the defendant, St. John, the costs of the appeal.

Bill dismissed.  