Elijah J. Bryan, Appellant, vs. Henry Long, Appellee, 14 Fla. 366

RANDALL, C. J., delivered the opinion of the Court. This is an appeal from an order granting an injunction. In March, 1872, complainant Long bought a buggy and harness of Bryan and gave therefor a note payable in November, signed by complainant and one Harden. The note contained a stipulation that all the property of the makers should be subject to levy and sale to satisfy the debt, waiving and relinquishing all benefit of any law exempting the same from levy and sale.

Judgment was afterwards entered upon the note, and by virtue of an execution the sheriff, Finlayson, levied upon a liorse and the buggy as the property of Long. Long claimed the property as exempt from levy and sale by virtue of the constitution and laws of Florida. Finlayson returned the execution with the levy indorsed, and further returned that he had released the property from levy, it having been claimed as exempt from sale. This was June 23, 1873.

The complainant alleges these facts in his bill, and states further that the sheriff, notwitstanding this release, held possession of the property, and refused to deliver it to complainant until his expenses, incurred in appraising his property, were paid.

And that afterwards Bryan applied to the county Judge for an order requiring complainant to appear and answer concerning his property, &c., and that such proceedings were had thereupon that the Judge decided and adjudged that all complainant’s property was subject to levy and sale by virtue of the stipulation in said note waiving the benefit of exemption, and that the sheriff is about to sell the property to satisfy the execution, and that meantime the sheriff is using the horse and buggy for his own private purposes, wearing them out and rendering them of little value.

Prayer for injunction to restrain the sale, for a return of the property to complainant, for an account t© be taken of the Value of the property, its use, &c., and that he be paid the same. In other words, this is an action of replevin brought in the form of a bill in chancery. The action of the County Court affords no ground of jurisdiction in a court of equity. The whole question both as to the action of the County Court, the duty of the sheriff and the right of the plaintiff, may be determined in an action of replevin for the property or in an action on the ease for damages.

Of course we cannot here decide the principal question, as the whole matter belongs to a court of law. The defendant’s demurrer to the bill should, upon that ground, have ¡been sustained. Under our statutes, (Thomp. Dig., 388,) replevin will lie against an officer who levies upon property exempted from levy, and a writ of replevin would perform all the offices of the injunction sought. Moreover, it must he an extraordinary case which warrants the issuing of a wit of injunction to prevent a trespass in regard to personal property.

Were this case properly here, I might feel the same kind embarrassment which was experienced by a French Judge when a youth, convicted of murdering his own father and mother, appealed for mercy on the ground that he was a poor orphan. Here the complainant admits that he bought Bryan’s property on credit, failed to pay for it, and now asks a court of equity to aid him in preventing his creditor from securing his pay out of the very property which the complainant has not paid him for.

Such a perversion of' fair dealing, however it may be justified under the sic dixit lex of our beneficent exemption laws, would not strike a sympathetic chord in a court of conscience. The order allowing an injunction must be set aside and Him cause remanded with directions to dismiss the bill.