Wakeman v. Russel

1 Edw. Ch. 509, 1833 N.Y. LEXIS 222, 1833 N.Y. Misc. LEXIS 18

• Court: New York Court of Chancery
• Decided: January 8, 1833
• Status: Published

Opinion

The Vice-Chancellor.

In this case the judgment has been assigned; and the assignor files, what is called, a creditor’s bill.

The strongest doubt in my mind arises upon the fact of the complainant’s not having issued any execution. He relies up-_ •n the unsatisfied fieri facias issued by the original plaintiffs1 in the action. On looking at the statute it does appear that the party suing out the execution should file the bill: 2. R. S. 173, §. 38. It would seem to follow that the purchaser of a judgment who files a bill in his own name, should have first issued an execution. I am satisfied this is not arcase in which the' the court ought to interfere. Even laying aside the smallness of the amount for which the judgment was assigned, I think ' the statute sufficiently clear, that the party who sues out the execution shall be the person to file the bill. Here, three years have passed since execution was issued by the original parties ; and the complainant, the assignee, has taken out no fresh process. He has not, consequently, exhausted his legal reiri-f edies.

I shall refuse the motion, with costs.