Hart v. Tims

New York Court of Chancery

Hart v. Tims

3 Edw. Ch. 226, 1838 N.Y. LEXIS 259, 1838 N.Y. Misc. LEXIS 13

DecidedJune 26, 1838

StatusPublished

This text of 3 Edw. Ch. 226 (Hart v. Tims) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hart v. Tims, 3 Edw. Ch. 226, 1838 N.Y. LEXIS 259, 1838 N.Y. Misc. LEXIS 13 (N.Y. 1838).

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Opinion

The Vice-Chancellor :

The usual and, I consider, the better practice in these cases is, to serve a copy of the bill on the defendant personally or on his solicitor before moving for a receiver, instead of presenting a petition, stating what the bill contains, &c. Here, the defendant has never seen the bill; and his affidavit shows that this proceeding has been precipitated against him without necessity or any previous notice of the amount of the judgment or how much he was required [227]*227to pay, although he swears he would have paid forthwith, if he had been notified.

, , , . - I suppose the complainant, as a matter or strict right, was at liberty to file this bill and that the defendant must pay the costs of it, as well as the amount of the judgment; but, under the circumstances disclosed in the defendant’s affidavit, I am not disposed to accelerate proceedings which are not in conformity with the usual practice and which are shown to be entirely unnecessary and, at the same time, calculated to swell the amount of costs.

I, therefore, deny this motion for a receiver and leave each party to bear his own costs.

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The Vice-Chancellor :

The usual and, I consider, the better practice in these cases is, to serve a copy of the bill on the defendant personally or on his solicitor before moving for a receiver, instead of presenting a petition, stating what the bill contains, &c. Here, the defendant has never seen the bill; and his affidavit shows that this proceeding has been precipitated against him without necessity or any previous notice of the amount of the judgment or how much he was required [227]*227to pay, although he swears he would have paid forthwith, if he had been notified.

, , , . - I suppose the complainant, as a matter or strict right, was at liberty to file this bill and that the defendant must pay the costs of it, as well as the amount of the judgment; but, under the circumstances disclosed in the defendant’s affidavit, I am not disposed to accelerate proceedings which are not in conformity with the usual practice and which are shown to be entirely unnecessary and, at the same time, calculated to swell the amount of costs.

I, therefore, deny this motion for a receiver and leave each party to bear his own costs.

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Bluebook (online)

3 Edw. Ch. 226, 1838 N.Y. LEXIS 259, 1838 N.Y. Misc. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hart-v-tims-nychanct-1838.