The question as to the ownership of this property cannot be settled upon an application of this kind, upon affidavits, as that would be anticipating the decision of the main question in the cause without giving the parties an opportunity to examine and cross-examine witnesses in the usual way. It is only necessary, therefore, to look into the affidavits for the purpose of seeing whether there is a strong probability that the property in question belongs to the defendant in the execution ; for the purpose of determining whether it is equitable that his judgment creditor, who had levied thereon, should have possession of the fund pending this litigation. Upon the present papers I am inclined to think the defendant Bloomer had no interest in the property which could be sold upon the execution of Van Amringe. Although Wilson swears
The only question upon this appeal therefore is, whether this is a case coming within the provisions of the revised statutes, requiring the deposit of the amount of the debt and costs, upon granting an injunction to stay proceedings at law in a personal action after judgment; and authorizing the court to pay over the money thus deposited to the credit of the plaintiff in the suit at law, upon his bond, with sureties, to repay the same with interest if so directed by the order of the court. (2 R. S. 189, § 147, 148.) As I have had occasion to observe in another case, the party who has obtained a verdict or judgment at law is, as against the defendant in that suit, prima facie entitled to the money thus recovered. And one object of this statute was to give him the possession of the fund while the equitable right to the same was in further litigation in this court, upon his giving security to restore the amount in case the adverse party finally succeeded in showing that the verdict or judgment was inequitable. But the reasons upon which this statutory provision is founded are not applicable to a case where there is no privity between the complainant, who applies to this court for an injunction, and the defendant in the suit at law; and where the object of the injunction is not to stay the proceedings in the suit at law against the defendant therein, or against his property upon which the judgment or execution is a legal lien. Here, if the allegations in the complainant’s bill are true, the property in controversy never was either legally or equitably affected by the judgment or execution, and there is no privity whatever between him and the defendant in the suit at law, in re
The decision of the vice chancellor was therefore not erroneous, and must be affirmed with costs ; and without prejudice to the right of either party to apply to the vice chancellor to have the fund in court invested, either upon bond and mortgage, or in the Trust Company, upon interest, to abide the further order of the court in this cause.