Majority
p. 445Hope and another v. Brinckerhoff. January 5, 1841.
Headnote
Debtor and creditor. Fi.fa. Vle.ad.inrr.In a judgment creditor’s bill, on judgment obtained in the Supreme Court, it should appear that the defendant resided in the county at the time when and to which the fi.fa, was issued.
Judgment creditor’s bill. Demurrer interposed on ground that the bill did not show the defendant resided in county of Kings at the time the execution was taken out. the the
The bill, after the averment of the issue of a fi. fa. out of the Supreme Court, added: “ that being the same county in which the defendant resides.”
Defendant, in pro. per. referred to Reed v. Wheaton, 7 Paige, 663 ; and MS. case before the Chancellor of Gaylord v. Hendrickson.
Mr. Sears, for the complainants.
The cases cited settle the point conclusively, that it is not sufficient to aver, as in this instance, a residence at the time of swearing to the bill. It must show affirmatively that the defendant resided in the county to which thefi.fa. issued (out of the Supreme Court) at the time it was so issued.
Demurrer allowed, with costs; but let the complainant have leave to amend the bill on payment of costs.