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Wintringham v. Wintringham

20 Johns. 296 Court N.Y. Sup. Ct. English

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Majority

p. 296
Wintringham against Wintringham.

Headnote

The Coujt will not set aside a judgment entered up on a bond and warrantof attorney, or stay execution thereon, on the -ground of fraud, at the instance of a creditor at large,or whose debt has not been legally ascertained by judgment.
OAKLEY, in behalf of a creditor, moved to set aside the judgment which had been entered up in this cause, on a bond and warrant of attorney, on the ground of fraud.
Swift, contra,
made a preliminary objection, that the person, in whose behalf the application was made, was not a judgment, hut a simple contract, creditor. He cited Wiggins v. Armstrong, ( 2 Johns. Ch. Rep. 144 .) in which the Court of Chancery decided, that a creditor at large, or before judgment, was not entitled to the interference of that Court, to prevent the debtor from disposing of bis property, under judgments and executions, in fraud of such creditor.
p. 297
Oakley said,
that in Frazier v. Frazier, ( 9 Johns. Rep. 80 .) it did not appear, that the creditor, in whose favour the application was made, was a judgment creditor.[1]

The application here is in behalf of a creditor at large, not a judgment creditor. In Frazier v. Frazier, according to our recollection, the motion was in behalf of a judgment creditor. The case of Wiggins v. Armstrong, is analogous ; and the Chancellor, after examining all the cases, refused to grant the party relief, until he had completed his title at law, by judgment and execution. The power exercised by this Court, in staying executions and setting aside judgments, on the ground of fraud, is an equitable power; and if a Court of Chancery will not grant relief, except in favour of a judgment creditor, a fortiori, a Court of law cannot.

Motion denied.[1]

(b) (b) Vide Hendricks v. Robinson, ( 2 Johns. Ch. Rep. 283 .) Brinkerhoff v. Brown, Williams v. Brown, and M‘Dermutt v. Strong, ( 4 Johns. Ch. Rep. 671 . 682. 687.) Spader v. Davis, ( 5 Johns. Ch. Rep. 280 .) Brinkerhoff v. Marvin, (Id. 320.)