The Court of Equity has the power to make the order moved for by the complainant in this case; but this power ought to be exercised only in cases where, without such interference, justice could not be effected: as where the plaintiff at law is or probably will be insolvent at or before the final decision of the cause in equity, or where he resides out of the State and at such a distance as to expose the party prevailing to great trouble, expense and inconvenience in getting back his money. Indeed, without such a power in a court of equity it could not afford that remedy which induces men to seek redress in that court. A plaintiff (who may be insolvent) obtains a judgment at law against a man who has no legal, but a good (5) equitable defense; to avail himself of this defense he procures a bill of injunction; but the plaintiff at law has a conscience hardy enough to deny all the equitable matter contained in the complainant's bill, and on the hearing the injunction is dissolved. The complainant, conscious, however, that he can prove the facts upon which his claim to relief is founded, continues over his bill as an original, procures his testimony, and on the final hearing of the cause obtains a decree in his favor. But in the meantime the plaintiff at law has received a satisfaction of his judgment, is utterly insolvent, and beyond the reach of the court. Of what avail to the complainant is the mere decree of the court? The remedy, which he has been seeking for years, turns out to be merely nominal; it yields him nothing. To prevent this evil, the Court of Equity will exercise the power of making such an order as that now moved for; and it appears to the Court that the facts contained in complainant's affidavit are sufficient to authorize the exercise of this power in the present case. Let the motion be allowed, and the money retained by the clerk until bond with good security be given to refund the money in the event of a decree being made to that effect.
Cited: McDowell v. Sims, 42 N.C. 52. *Page 11
(6)