Price v. Church , 1 Cl. Ch. 429 ( 1841 )

The Vice Chancellor.

Here is a case where the obligee of a bond—having assigned it before suit commenced thereon at law, after a judgment has been obtained thereon at law in his name, as it necessarily must be, and he having no interest in the judgment—undertakes to file a creditor’s bill to enforce the payment of that judgment in his own name, and that without the approbation or consent of the assignee. He, in this, was guilty of ignorance, or intended to commit a fraud. His own affidavit would rather lead us to the latter construction. This is not all. Upon two motions which have been made in this matter, the complainant has endeavored to conceal the situation in "which he stood. There is arid has been a want of frankness in his whole appearance before the court; and his appearance here in the first instance, is almost if not quite characterized by the badges of fraud. It was not until an application was made for an attachment against him, that he has disclosed his true position, even if the facts which he now presents may be relied upon as true. The court can feel no sympathy for such a party. If the defendant had not defended this creditor’s bill, he might have collected the amount of the judgment against him, out of this bill; and still the assignees would also have claimed to collect it, and at least put the defendant to much trouble, if not to the necessity of paying it twice. The only defence that can be insisted upon with any color, is, that the bill having been dismissed, the court can make no farther order in the cause. I understand from the admissions of the counsel, that the bill was dismissed after the first order against the complainant to pay into court the money levied upon by the sheriff This cannot, in my' view, prevent proceedings to enforce that order.

It may be doubted, indeed, if the facts prove that Wilkinson and McMaster are the bona fide owners of the judgment—whether the complainant should be compelled to pay the money levied upon by the sheriff, into court—or whether Wilkinson and Me Master, or the sheriff, not being parties to this suit, can be reached in this way. But the complainant is at least in contempt, for not paying the costs of two motions; and after his prevarications and concealments, the court cannot place entire confidence in his present statement.- It is, at any rate, a fair subject for farther inquiry; and the defendant should have an opportunity to probe his conscience by interrogatories and proofs.

The motion for attachment is therefore allowed, with costs to be taxed, as asked for by the notice.