majority">The Chancellor :—

I feel much doubt, whether it is a case for equitable relief, the defense to the scire facias being of a legal nature, it being before judgment, so that the defendants have opportunity to make it, with power to examine the plaintiffs in' the scire facias, and Gordy at the trial, with as much effect, so far as I can see, as by answer in equity. But not being willing to decide such a question without examination, for which there is not sufficient time before *162a trial would be reached, I have concluded to order the injunction so that the question may be deliberately considered.

Wright, for the defendants.

r. We rely on the want of equity in the bill. The only ground alleged is, that complainants can prove payment of the recognizance only by Peter B. Gordy, that they are apprehensive that he would deny payment, and being complainants’ own witness, could not be impeached by proving contradictory statements. This is not a sufficient ground. The complainants have nothing to gain in equity, but a discovery by Dodd and wife, and they can as well have this relief at law, by examining the plaintiffs in the suit at law.

Again, the statement of the bill of the two material facts, the bond of indemnity and the payment, is only upon information and belief; it is vague and uncertain, and, therefore, not sufficient to support an injunction. An averment of a fact must, in form, be positive. 1 Dan. Ch. Pr. 411. Besides, there is no privity of contract between the complainants and Dodd and wife, the parties at law. The bond was between Matthews and Gordy, Dodd and wife having no connection with it. The bond affords no defense to an action by them upon the recognizance against Matthews.

2. The answer fully denies the facts relied upon to constitute the equity of the bill, and on this ground the injunction should be dissolved. 1 Eden on Inj.^iA^, x.

And the allegations of the answers, as to the object of the bond respecting these two shares, are supported by the bill. Gordy did not convey the two-ninths ; Matthews (as charged) proceeded on the bond before any demand was made for these two shares, or process issued to recover them, and this lien was created not by Gordy, but by Matthews. Why then should the former indemnify against it ? Besides, the bond was given the year before the recognizance was entered into.

*162The answers having been filed at the September term, 1867, defendants moved to dissolve the injunction and dismiss the bill.

Layton, for the complainants,

opposed the motion and insisted that the charges of fraud in the bill constituted a sufficient ground of relief.

The Chancellor :—

The motion to dissolve the injunction is urged upon two grounds. The first, which sustains the motion, is that there is no equity in the bill to support the injunction. There are two grounds upon which this Court interferes with suits at law. (1.) When the defense is an equitable one, as, for example, where a contract under seal is discharged by a release not sealed, or when, in an ejectment, an equitable title is set up against the legal holder. (2.) When the defence is legal, but equity can aid in making it effectual. In these cases the injunction is only temporary, as where an account is sought, or a discovery was required, before the Statute authorizing the examination of parties at law.

In the present case the suit at law is upon a recognizance given by John S. Matthews in the Orphans’ Court on his acceptance of land of Aaron Gordy, senior, which had been assigned to his widow as her dower. The first question to be considered is, whether the defense is legal, or, equitable. The defense alleged by the bill is payment by Peter B. Gordy, the vendor of Matthews, and Gordy’s warranty in writing. The warranty is not to be considered. It is no defense, legal or equitable, where, as originally *164alleged in the bill, there was no privity with Dodd and wife, and it does not affect the question of payment. With respect to the defense of payment, it is strictly available at law.

But in the second place, it is alleged that the complainants cannot, at law, make their defense good. Even if this be true, equity cannot help them. All that they can do here they.can do there. They can examine the adverse parties. They can also examine Gordy as a witness, in the suit at law, more effectually thanhere as a party. If they cannot impeach him, this Court cannot help them to do it, nor would it avail to do it here. It does not move a step in the direction of proving payment, to impeach the only witness who knows the fact about it.

As to the allegation of fraud, the complainant can shew.that in the suits at law as well as here and, indeed, better. The result then is that complainants allege payment and cannot prove it, and this Court cannot advance him a step towards the proof of it. Ought the Court then to interfere ?

So the case stood at the filing of the bill, but now it is far wo^se, since, after exhausting all that equity can do, all that could not be done at law, the case not only fails to establish the desired proof, but the contrary appears.

The injunction, therefore, must be dissolved.

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