Burns v. Morse

6 Paige Ch. 108 | New York Court of Chancery | 1836

The Chancellor.

The fraud in obtaining the judgment of Platt is sufficiently charged in the bill to authorize the court to dispense with the deposit of any monies, or the execution of a bond, upon obtaining an injunction to stay the proceedings on that judgment." (2 R. S. 190, § 147.) If the judgment was confessed for a debt which was not then due and payable, or for more than was then actually due, or if the whole amount was fully secured upon real estate, and the judgment was given for the purpose of covering the personal estate also, so as to prevent the complainant from obtaining satisfaction of his debt out of such property, and with a view to defraud him, as charged in the bill, the whole judgment and the proceedings under it are fraudulent and void as against him, and must be set aside. Again; the question whether security ought to have been given upon the granting of the injunction, under the provisions of the revised statutes, was not properly presented upon a mere application to dissolve the injunction upon the matter of the bill only. Even if the fiat upon the back of the bill could be considered as a part of the bill upon such an application, that does not show that the deposit required by the statute was not made. -To raise that question, the defendants should have founded their application upon the bill, and also upon an affidavit that no deposit or security had been given, or upon a certificate of the clerk to that effect.

The vice chancellor is also right in the construction which he has given to the act to incorporate the city of Rochester, when taken in connection with several provisions of the revised statutes. The 19th section of the title of the revised statutes relative to mayors’ courts in cities, which provides that no process in any mayor’s court should be tested and made returnable the same term, (2 R. S. 219,) would probably have applied to the mayor’s court of Rochester, which was established since the revised statutes went into operation, if a different provision on this subject had not been contained in the act of incorporation of that city. But the second section of the tenth title of that act provides, in terms, that all laws regulating the practice of the courts of commom pleas of the several counties, conferring judicial powers on them, authorizing the commencement of suits therein, regulating the removal of such suits and authorizing the issuing of process, shall be applicable to and binding upon the said mayor’s court. (Laws of 1834, p. 333.) And one of the laws regulating the practice of the several courts of common pleas and authorizing the issuing of process, and which is thus made applicable to and binding upon the mayor’s court of Rochester, is, that all writs or process which shall issue out of either of the said courts may be tested on any day of the term in which such court shall sit, and be made returnable On any other day of the same term, or at the next term. (2 R. S. 210, § 11.) The execution in this case was therefore regular; and the return thereof unsatisfied authorized the filing of this bill, and the issuing of the general injunction as against the judgment debtor.

The order appealed from is therefore affirmed, with costs.