Dickey v. Craig

The order appealed from must be reversed, if the appellants were right as to either of the grounds upon which they asked for a dissolution of the injunction. But by the arrangement of the parties I am only to consider the question, at this time, as to the right of the complainant to an injunction without a deposit or security, admitting a proper case in other respects is shown by the bill. This depends upon the construction which is to be given to some of the provisions of the article of the revised statutes relative to the granting of injunctions to stay proceedings at law. The 141st section of that article, (2 R. S. 189,) directs that no injunction shall issue to stay proceedings at law, in any personal action, after judgment, unless a deposit to the full amount of the judgment, including costs, shall be made, or bond and security in lieu thereof shall be given. If this is to be considered as a proceeding in the action in which the judgment was recovered, it comes within the letter of the statute requiring a deposit, or security, before an injunction can be granted to stay such proceeding. And it appears to be clearly within the spirit of this provision, as there is no pretence that any thing *285new has occurred, since the judgment, which could constitute an equitable bar to the scire facias. Although for some purposes a scire facias is considered and treated as an action, still, if the object of the proceeding is to revive a judgment, it is a proceeding in the original action, and is but a continuation thereof. This was so decided in the case of the executors of Wright v. Nutt, (1 Term Rep. 388 ;) and it is so considered in several boobs of practice. (See 2 Chitty’s Archbold, 598 ; Graham’s Prac. 649.) For this reason also a substituted service is sometimes allowed ; as was done in the case of Dias v. Gaydon, (Beatty’s Rep. 439.) This case coming both within the letter and the spirit of the section of the revised statutes above referred to, the order appealed from must be reversed, with costs. And the injunction must be dissolved; but with liberty to the complainant, upon the hearing of the ether appeal, to apply for a renewal of the injunction upon giving such security as is required by the statute.