Reed v. Wheaton
New York Court of Chancery
This was an appeal from the decision of a vice chancellor denying an application to dissolve an injunction. The complainant recovered a judgment against the defendant, in May, 1839. And the bill alleged that an execution was afterwards issued thereon to the sheriff of Genesee countv, which was returned unsatisfied ; but there was no averment in the bill that the defendant was a resident of that county, at the time of issuing the execution.
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This was an appeal from the decision of a vice chancellor denying an application to dissolve an injunction. The complainant recovered a judgment against the defendant, in May, 1839. And the bill alleged that an execution was afterwards issued thereon to the sheriff of Genesee countv, which was returned unsatisfied ; but there was no averment in the bill that the defendant was a resident of that county, at the time of issuing the execution. By the answer of the defendant, it appeared that in April, 1839, previous to the recovery of the judgment, he removed into the adjoining county of Niagara,…
1Opinion of the Court
The Chancellor.
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…
2Cited by11 opinions
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- Webster v. ClarkSupreme Judicial Court of Maine · 1845
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- Fenton v. FlaggNew York Supreme Court · 1861
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