Robert Cooper Grier

“ The equities being equal, a court of equity cannot shift the burden from the one to the other; but must leave each undisturbed in his legal rights.
2d. But, in truth, the appellant was, in no sort, injured by the alleged collusion and fraud between Bland and the sheriff; every defence that the nature of the case admitted was taken, and urged with all practicable effect. As to the defence, of the loss of which alone he complains, it was no defence to that action; but belonged to the other suits on the same bond in the Circuit Court of Claiborne County. ”

“ This the record nowhere exhibits; it exhibits merely a ca. sa. against McNider, reciting a judgment held by the appellees against him for $3,910.78. That such a judgment cannot sustain an execution, is a proposition too well settled to require argument or authority for its support. Besides, it is clearly established by the statutes of Mississippi, under which the liability of the appellant, Humphreys, accrues, and by the provisions of which its extent is to be ascertained. ”

“ On the 12th of December, 1838, and on the 21st of January, 1839, executions had come into the hands of the sheriff returnable to the next term of the court; at this time, no suit had been instituted by the appellees against the sheriff or his sureties, on their official bond, on the ground of the alleged escape of McNider; these executions not being returned, judgments were recovered against the appellant, on his official bond, on summary motion, and in exact accordance with the law; executions were thereon issued to the coroner against the appellant ”

“ Because, if the facts alleged by him were true, they lay no ground for the interference of equity to restrain the appellees from using and enforcing their judgment at law.
3d. Because he never had any available defence at law; such as he pretends being inadmissible either at law or equity. ”

“ The concurrence and the clear proof of the following circumstances are held indispensable:-1st. That the party seeking such relief really had a defence that was at once just in itself, and available at law. ”

“ Eliz. 872; Whitrong v. Blaney, 2 Mod. 10; Barr v. Satchell, 2 Str. 813. Though a strong case of collusion and fraud between sheriff and defendant be made out, the return of non est inventus is conclusive on plaintiff. Goubot v. De Crouy, 3 Tyrwhitt, 906; S.C.., 1 Cromp. & Mees. 772. See Harrington v. Taylor, 15 East, 378; Lofft's Rep. 371.
Mr. Justice GRIER delivered the opinion of the court.
The appellant, Humphreys, who was complainant below, filed his bill against the defendants, praying an injunction against the issuing of an execution on a judgment they had obtained against him at law. ”

“ By repeated decisions, the execution creditor is entitled to the proceeds of the sale, the prior judgment creditor, who has not levied an execution, being left to his lien on the property. Robinson v. Green, 6 How. Miss. 223; Commercial Bank v. Yazoo, Ibid. 535; Goode v. Mayson, Ibid. 547; Andrews v. Doe, Ibid. 562; Bibb v. Jones, 7 ib. 400.
3. The statute of Mississippi gave to the appellees the same summary mode of proceeding against the sheriff and his sureties on the escape of McNider, when in custody under their ca. sa. ”