Hart v. Albright

28 Abb. N. Cas. 74

Opinion

McAdam, J.

This is a creditor’s bill, filed to obtain discovery from the defendants of certain book accounts concealed, withheld and transferred in fraud of creditors. The result' sought might have been obtained by supplementary proceedings, and Taylor v. Persse (15 How. Pr. 417), holds the latter to be the appropriate remedy, while Abbott, in his Digest of Cases Criticised (p. 756), says this case must be regarded as overruled. Throop, in his preliminary note to section 1871 of-the Code, says that the ancient equitable jurisdiction of the courts in regard to creditors’ bills has been preserved, and this seems to be the consensus of opinion on the subject. As the complaint states a sufficient cause of action for equitable relief under the old practice, it is not open to demurrer under the present mode of procedure. There must be interlocutory judgment in favor of the plaintiff, with a reference to examine the defendants as to the discovery claimed, with liberty to apply for final judgment on the conclusion of such examination.

Settle order on notice.