Stafford v. Hulbert

1 Harr. Ch. 435

• Court: Michigan Court of Chancery
• Decided: July 1, 1841
• Status: Published

Opinion

The Chancellor

This is a creditor’s bill merely. It appears from the bill that the execution was returned by the sheriff more than a month before the return day, but that the bill was not filed until after the return day had passed.

Several other questions were raised upon this motion, but since from the views taken in the case of Thayer vs. Swift, and others, decided in the second circuit, this must he decisive of the case ; it will not be necessary to notice them all. The practice of the court and the reason of it, are set forth in that case at length, and I adhere to the opinions therein expressed.

It may he proper to say since that case was decided, I have seen an extract from the record in the case of Ferguson vs. Newslead, el. al., referred to, from which it appears that the newspaper report is correct and that the case turned upon the question here presented, and that the demurrer was allowed.

A question was raised as to the reception of the affidavit stating that the return of the officer upon the execution was limited only to goods and chattels, and that it does not appear but that the defendant was possessed of lands and tenements out of which the money could have been made.

From the view taken upon the first point it is not necessary to decide this question.

Where the affidavit shows a distinct fact, and that the well settled practice of the court has been departed from, I am induced to believe that the affidavit may be received.

Motion granted.