Suit v. Creswell

Stewart, J., delivered the opinion of the Court. The rule is well established that the powers of a Court of equity to grant relief by the writ of injunction, should be exercised with great caution. A party applying for preventive relief by this extraordinary process, which is not a matter ex debito justitice, ⁵³¹ must clearly show, that his application rests upon some solid and primary equity, in aid of which such remedy is to he employed. If he can have relief according to the nature of his case, without such interposition of a Court of equity, he is without ground to invoke its assistance.

There can he no doubt that under the deed from the complainant, the trustee therein appointed, was authorized to make sale of the property conveyed to him in trust, in default of the payment of the debt intended to be secured thereby. The acceptance of the trust devolved this duty upon him according to the provisions of the deed, clothing him with the power. Before he attempted to make the sale, it was not necessary as a preliminary enquiry on his part, that he should ascertain and determine to whom the proceeds of the sale might belong. That question can be determined by the Circuit Court after the sale shall have been reported and confirmed, as required by the Act of 1870, ch. 370.

Under the provisions of this law, if no bond, or an insufficient one has been given, it