Gleason v. Gage

| New York Court of Chancery | Mar 6, 1838

The Chancellor.

The vice chancellor has undoubtedly based his decree in this case upon his reported decision in the case of Wakeman v. Russell, (1 Edw. Ch. Rep. 509.) I think, however, he has in both cases misapprehended the spirit and intent of the statutory provision upon the subject of creditors’ bills. The object of the revisers and of the legislature was not to establish, as a technical rule, that the execution should have been taken out by the same individual who filed the bill. But it was to establish and declare the great principle decided by the court for the correction of errors, in Hadden v. Spader, that the creditor, after the remedy against the tangible property of the debtor had been exhausted by the return of an execution unsatisfied, might come into this court for the purpose of obtaining a discovery and payment out of property of the debtor which could not otherwise be reached. It is therefore the duty of the court to extend the remedy to every case coming clearly within the spirit and intent of the statutory provision. For that reason it has already been decided, by this court, that a creditor by a decree in equity, who has exhausted his remedy by execution thereon, may file a bill for relief, in the same manner as a creditor by judgment; although the language of the statute, if strictly construed, would limit the remedy to creditors who had obtained judgments in courts of common law only.

In courts of common law the real party is sometimespermitted to prosecute his suit in the name of a third person who has no subsisting interest therein. And he is frequently compelled to use the name of the original creditor where a chose in action has been assigned. But in this court the assignee of a right of action must prosecute the suit in his own name ; and it is a good defence, in most cases, that the nominal complainant has no interest in the subject of the litigation. The complainants, therefore, after they had purchased this judgment, were compelled to file the bill in their own names. And there is no góod reason for requiring them to go through the mere formality of taking out a new execution, and having it returned unsatisfied, when the ink was scarcely dry upon a similar return made by the sheriff on the execution which had been issued at the instance of the party from whom they purchased the judgment.

There is no foundation for the objection that the consideration of the assignment is not stated in the bill. The assignment is stated to bo by deed, and that of itself imports a sufficient consideration to support, the assignment. If the assignment is valid between the parties thereto, so as to transfer the whole interest in the judgment to the complainants, the debtor who has neglected to pay the judgment, and who has no legal or equitable defence as against either the assignor or the assignees, has no right to know how much, or in what, the assignees of the judgment paid, upon their purchase of that judgment.

The decree appealed from must be reversed, and the demurrer be overruled, with costs. And the defendant must pay the costs and put in his answer within thirty days.

The proceedings are remitted to the vice chancellor.