3 Barb. Ch. 650 | New York Court of Chancery | 1847
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.
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
Upon the allegations in the bill as they now stand, the complainant is not entitled to retain his injunction. It must therefore be dissolved.