7 Paige Ch. 663 | New York Court of Chancery | 1839
It is evident in this case that the complainant has not exhausted his remedy at law on his judgment. And, if the averments in the answer are true, there has not even been a bona fide attempt to collect the debt out of the defendant’s property. But as the allegations in the answer, that the defendant lived in Niagara county at the time of issuing the execution, and that the complainant well knew that fact at the time of filing his bill in this suit, are not responsive to any thing contained in the bill, the vice chancellor would probably have been right in disregarding them, if the bill itself had shown sufficient to have authorized the issuing of the injunction originally. The bill, however, is defective in substance in this respect; as there is no averment therein that the defendant, at the time of the issuing of the execution to the sheriff of Genesee, was a resident of that county, or that he ever had resided there. In the case of Leggett v. Hopkins & Smith, (ante, p. 149,) it was decided that where the judgment was in the common pleas, so that an execution could not be issued to any other county than that in which the judgment was obtained, it would be sufficient to issue an execution to the sheriff of that county, although the defendant resided elsewhere. In such a case it is not necessary, in the bill, to say any thing about the defendant’s residence. But where the judgment is in the supreme court, so that an execution may be issued to any part of the state, or where the bill is founded upon a decree of the court of chancery, the process of which court may also be sent into any county, the complainant who comes into this court for relief upon the ground that he has exhausted his remedy by execution on the judgment or decree, must show affirmatively, by his bill, that he has issued his execution to the sheriff of the county where the defendant resided at the time such execution was issued; or he must insert some other averment showing a sufficient and legal excuse for not sending his execution to the county where the defendant resides. If the defendant has removed from the state, or if his residence, upon diligent search and inquiry, cannot be found, that may be a sufficient excuse for sending the execution to the county where he re