Stilwell v. Van Epps

1 Paige Ch. 615, 1829 N.Y. LEXIS 386, 1829 N.Y. Misc. LEXIS 69, 1829 N.Y. App. Div. LEXIS 1

• Court: New York Court of Chancery
• Decided: October 6, 1829
• Status: Published

Opinion

The Chancellor :—The complainants having taken the body of their debtor in execution, could not proceed against his property at law while he remained in custody. (Horn v. Horn, Ambl. R. 79; Jackson v. Benedict, 13 John. R. 532.) The bill filed in this court to reach the equitable assets of the debtor is merely in aid of the legal remedy, and that remedy being at an end, or at least suspended, by the voluntary act *of the complainants at the time they filed their bill, this suit cannot be sustained. The plea must, therefore, be allowed.

A supplemental bill will not aid the complainants, because they commenced this suit when they were not entitled to any kind of equitable relief; and the subsequent assignment under the insolvent act has transferred all the interest of their debtor to the assignee for the benefit of the creditors generally.

[1] (Candler v. Pettit, 1 Paige’s Rep. 168.) The application for leave to file a- supplemental bill is denied with costs.

See 2 R. S. (4th ed.) 203, sec. 33; Bailey v. Burton, 8 Wen. 348. Property fraudulently conveyed by an insolvent debtor prior to his discharge, passes to the assignees, although not mentioned in the inventory. Ward v. Van Bokkelen, 2 Paige, 289; Roseboom v. Mosher, 2 Denio, 61.