Wakeman v. Russel — 1 Edw. Ch. 509

Majority

p. 509

Wakeman vs. Russel.

Headnote

An assignee of a judgment, who has not taken out execution, cannot file a judgment creditor’s bill in his own name, even though the original plaintiff may have ha.d a fieri facias returned unsatisfied.

This was a bill in the nature of a judgment creditor’s bill.

January 8, 1833.

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 Wake-man, purchased it for a ten dollar bill of the said Franklin Bank. The judgment was, accordingly, assigned to the complainant ; and he now filed his bill to discover property which could .not be reached at law. He, himself, had issued no execution. Upon a motion for an injunction the question was, whether he could file such a bill ?

In an affidavit made by the .defendant, .he showed, that the ten-dollar-Franklin-bank-bill, paid for this judgment, was not worth over one dollar and fifty cents ; that, since the assignment, no legal proceedings had been instituted (save the filing .of the bill;) “ that this deponent .never received any notice •s‘ nor did he know of the assignment :of the saidfijudgment to “ the said complainant, por has he ever been called.upon or ap- “ plied to for the payment of the said judgment in any way since u the time of the said assignment of the same to the said com- “ plainant.’

p. 510

Mr. N. B, Blunt, for the complainant.

Mr. S. B. Romaine, for the defendant.

The statute upon which the complainant’s proceedings are based, is founded upon the decision in Hadden v. Spader, 20. J. R. 554.

The consideration paid by the complainant to the receiver of the Franklin Bank was ten dollars of the money of this bank; and allowing for the twenty-five per. cent, which has been paid, the actual amount, therefore, was seven dollars and fifty cents in Franklin Bank notes, and the value thereof was not over one dollar and fifty cents.

The application, if allowable at all under the circumstances, should have been made in the name of the Franklin Bank.. An assignee of a -judgment is not such a judgment creditor as is intended by the statute.

It is made ^ indispensablejby the statute (2. R. S. 174.) that an execution shall have been issued upon the judgmenfagainst the property of the defendant and be returned unsatisfied ; and also “ that the .party[suing out such execution” shall proceed by filing his bill in chancery, &c. In the case of Angel v. Draper, 1 Vern. 399, it was decided by the court on demurrer, that until the plaintiff in the judgment had sued ©u.t his fieri facias the goods sought to be enjoined were not bound and, therefore, he was not entitled to discovery or relief.

Mr. N. B. Blunt, in reply. The court of chancery exercised jurisdiction in cases where an execution had been returned nulla bona, before ;any statutoryjprovision was made on the subject.

An assignee of a judgment is entitled to all the legal rights of the" assignor. Hejtakes subject to all equities ; ánd has a right to the benefit of all the same. By the Revised Statutes, vol. 2. p. 41. the assignees of insolvents may sue in their own nam.es.

It is admitted that the complainantjmight have filed his bill in the name of the Franklin Bank.

p. 511

The assignee could not have issued execution in his own name ; and if the statute contemplated expressly a confinement of the right to injunction to the party in whose name execution was issued, an assignee would have no remedy. The language of the statute is, “ the party suing out such execution not, “ in whose name” it was sued. Has not the representative of the party all the rights of his principal ?

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 is not arcase in which the' the court ought to interfere. Even laying aside the smallness of the amount for which the judgment was assigned, I think ' the statute sufficiently clear, that the party who sues out the execution shall be the person to file the bill. Here, three years have passed since execution was issued by the original parties ; and the complainant, the assignee, has taken out no fresh process. He has not, consequently, exhausted his legal reiri-f edies.

I shall refuse the motion, with costs.