Verselius v. Verselius

28 F. Cas. 1169, 9 Blatchf. 189, 1871 U.S. App. LEXIS 1830

• Court: U.S. Circuit Court for the District of Northern New York
• Decided: October 10, 1871
• Status: Published

Opinion

WOODRUFF, Circuit Judge.

This demurrer is submitted to me for decision upon the brief of the counsel for the defendant only. T have considered the objections, and am of opinion:

(1.) The jurisdiction to entertain such a bill is clear. Independent of the question, whether the assignee may not always, if he sees fit, seek the aid of a court of chancery, to set aside a fraudulent conveyance or illegal transfer, instead of proceeding by various actions at law, the right to call for an account is not questionable.

(2.) Although the charge of fraud and illegality is in the alternative, either ground is sufficient. The transaction is alleged to have taken place in November. 1869. That is less than four months before the adjudication which declared the demurrant a bankrupt, namely, February 1st, 1870.

(S.) The assignee has the right, as ancillary to the principal relief, to have a discovery from the defendants, and he properly seeks -it, to supply the deficiency in his own knowledge; and his ignorance of the particulars sought not only entitles him to the discovery, but excuses the want of more precise specification of the particular fraud alleged.

(4.) The bankrupt has a direct interest in the question whether the property shall be taken from the other defendant, and is, therefore, a proper party.

The demurrer is overruled, with costs, and the demurrant has leave to answer, on payment of the costs of the demurrer, and of the proceedings thereon.