Francia v. Oddie , 3 Edw. Ch. 455 ( 1841 )

The Vice-Chancellor :

It being shown by the affidavit of the defendants to be out of their power, in their present insolvent condition, to procure any person to join them in a bond as required by the order, it is not a case of wilful disobedience of the order within the 2 R. S. 298, § 10, pi. 3, to be punished criminaliter; nor is it a case which would authorize imprisonment, under the 2 R. S. 558, § 23 : because it is sworn to be out of the power of the defendants to perform the act or duty required by them. The complainants ought to have attended to this matter earlier. By the delay and the intervening insolvency of the defendants,they have lost the opportunity of obtaining the security. The court cannot now undertake to compel the defendants to do what has become impracticable.

The present motion must be denied; and the complainants be left to enforce the decree pronounced in the cause in the best way they can.

Motion denied; but without costs to the defendant.