Strange v. Longley , 3 Barb. Ch. 650 ( 1847 )

The Chancellor.

The objection that it is necessary for ' an assignee of the judgment to issue a new execution before he can file a creditor’s bill is not valid. That question was decided the other way in Gleason v. Gage, (7 Paige's Rep. 121,) where the decision of the vice chancellor in Wakeman v. Russell, (1 Edw. Ch. Rep. 509,) was overruled. The affidavit that the execution was not issued to the county where the defendant resided, would constitute a good objection to an application to appoint a receiver of the property of the judgment debtor. But as the complainant has sworn positively, in his bill, that the defendant resided in the county of Erie when the execution was issued, in January, 1839, the injunction cannot he dissolved upon a simple affidavit contradicting that fact; but the defendant must put in his answer denying this material allegation in the bill, and then move to dissolve on bill and answer.

The bill is defective, however, in not stating when the execution was returnable; as such execution was issued before the statute, requiring the execution to be made returnable sixty days after its delivery to the sheriff, was passed. The bill merely states that the sheriff was directed to have the money before the justices of the supreme court at Geneva on the return day of the writ; without stating any where in the bill when that return day was. And as there was no term of the court held at Geneva, it is doubtful when or where the court was held at which the execution was in fact returnable.

The objection to the bill is also well taken, that it does not appear that the whole judgment was assigned to the complainant, but only the obligations upon which the judgment was recovered, and for the payment of which obligations the bill states that the defendant in this suit is primarily liable. As the complainant claims the whole of the debt and costs included in the judgment, he must show a valid assignment entitling him to both; or the original judgment creditor, to whom the costs belong, must be joined with him in the suit; or be made a party to the same.

The general averment, that the defendant is primarily liable for the payment of the obligations upon which the judgment was recovered, is also too indefinite to excuse the complainant from issuing an execution to the county where the other judgment debtors resided, or from making them parties to the suit. This defendant may have become primarily liable, by some agreement made between him and his co-defendants in that suit since the recovery of the judgment; whereby he had agreed to pay the debt exclusive of the costs. If the defendant in this suit was in fac. the principal debtor in the judgment, and was bound in equity to pay the whole debt and costs, as between him and the other parties against whom such judgment was recovered, the complainant should have briefly stated the- facts upon which such primary liability of the defendant rested; so that the court could see whether the complainant was not under a mistake in point of law in supposing that Longley was in fact primarily liable. For instance; if Longley was the drawer of a note, on which the other defendants in the judgment were merely endorsers, that fact should have been stated in the bill, so as to give the defendant an opportunity to put the fact in issue, in case it was material.

Upon the allegations in the bill as they now stand, the complainant is not entitled to retain his injunction. It must therefore be dissolved.