Wakeman v. Russel
New York Court of Chancery
This was a bill in the nature of a judgment creditor’s bill. The judgment at law for seven hundred and seventy-eight dollars and sixty-five cents, had been recovered by the Frank•lin Bank against the defendant John Russel. That insti■tution became insolvent and got into the court of chancery ; ■and James Kent, Esquire, was appointed the receiver of its estate and effects. A writ oí fieri facias had been issued on the part of the bank; which was returned unsatisfied.
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This was a bill in the nature of a judgment creditor’s bill. The judgment at law for seven hundred and seventy-eight dollars and sixty-five cents, had been recovered by the Frank•lin Bank against the defendant John Russel. That insti■tution became insolvent and got into the court of chancery ; ■and James Kent, Esquire, was appointed the receiver of its estate and effects. A writ oí fieri facias had been issued on the part of the bank; which was returned unsatisfied. By virtue of his power as such receiver, Mr. Kent sold this judgment, ¡amongst others, at auction; and the complainant, Burr…
1Opinion of the Court
The Vice-Chancellor.
In this case the judgment has been assigned; and the assignor files, what is called, a creditor’s bill.
The strongest doubt in my mind arises upon the fact of the complainant’s not having issued any execution. He relies up-_ •n the unsatisfied fieri facias issued by the original plaintiffs1 in the action. On looking at the statute it does appear that the party suing out the execution should file the bill: 2. R. S. 173, §. 38. It would seem to follow that the purchaser of a judgment who files a bill in his own name, should have first issued an execution. I am satisfied this…
2Cited by3 opinions
- Gleason v. GageNew York Court of Chancery · 1838
- Strange v. LongleyNew York Court of Chancery · 1847
- Walker v. DonovanNew York Court of Common Pleas · 1877