ALBERT R. SCOFIELD against ADRIAN H. VAN BOKKELEN AND ANOTHER.
Except to stay waste, or prevent some irreparable injury, the writ of’ injunction is only issued as ancillary to some primary equity, which the plaintiff seeks to enforce by his bill.
Cause removed from thó Ooul’t of Equity of New-Hanovor county.
The bill alleges, that on the 10th of February, 1860, Conley *343and Kirk, of the city of New York, being in failing circumstances, made to the plaintiff a deed of assignment of all their real and personal estate, wherever the same might be, and also all their things in action, notes and effects, in trust, for certain creditors therein named ; that McRae & Company were indebted to the firm of Conley & Kirk,-in the sum of $808,61; that by the above mentioned assignment, the right to this debt, in equity, passed to the plaintiff as trustee; that, nevertheless, after the execution of the said deed, the defendant, A. il. Yan Bokkelen, took out an attachment, returnable to the County Court of New Hanover, alleging that the said firm of Conley and Kirk, was indebted to him in the sum of $1500, and summoned the said McRae & Co, as garnishees, to answer and say what amount they owed Conley & Kirk, who, accordingly answered, and admitted that they are indebted to the said firm, in the said sum of $808,61, and thereupon, a conditional judgment was rendered against the said McRae & Co., as Garnishees, and the case is still pending for final judgment. The bill alleges, that the indebtedness of Conley and Kirk, is based upon a bill due to the defendant, Spencer Yan Bokkelen, of New York, who assigned the same to his brother, the said Adrian, without consideration to avoid tire effect of notice, which the said Spencer had of Conley & Kirk’s assignment to plaintiff, and likewise to enable the defendant to use fraudulently the remedy, by attachment, which is not given by law to a non-resident against a citizen of the State of North Carolina. The prayer of the bill is to restrain'the said defendants from proceeding further in prosecuting the said action, begun by attachment, and for general relief.
The defendant filed a general demurrer, and the plaintiff having joined in demurrer, the cause was, by consent, transmitted.
Baker, for the plaintiff.
Strange, for the defendants.
PuaesoN, O. J.
The bill is fatally defective in this: it does *344not set up any 'primary equity, in aid of which, an injunction-is prayed, for; but seeks merely for an injunction restraining-all further proceedings,, at law, under the attachment; so, the only object is to obtain a perpetual injunction, and then the-matter is to stop ! 1! Except to stay waste, and prevent some irreparable injury, the writ of injunction is only granted as, ancillary, or in aid of, some primary equity, which the plaintiff seeks, by his bill, to- enforce.
This matter has, within- two or three last years, been so often before us, and has beeen so fully explained,, that we will, not again enter upon its discussion, or attempt any further explanation.
Pee CueiaM, Demurrer sustained and bill dismissed..