Wiggins v. Armstrong

2 Johns. Ch. 144

• Court: New York Court of Chancery
• Decided: June 12, 1816
• Status: Published

Opinion

The Chancellor.

[ * 146 ]

This is the case of a creditor on simple contract, after an action commenced at law, and before judgment, seeking to control the disposition of the property of his debtor, under judgments, and executions, upon the ground of fraud. My first impression was in favor of the plaintiffs; but upon examination of the cases, I am satisfied that a creditor at large, and before judgment and execution, cannot be entitled to the interference which has been granted in this case. In Angell v. Draper, (1 Vern. 399.) and Shirley v. Watts, (3 Atk. 200.) it was held, that the creditor must have completed his title at law, by judgment and execution, before he can question the disposition of the debtor’s property ; and in Bennet v. Musgrave, (2 Ves. 51.) and in a case before Lord Nottingham, cited in Balch v. Wastall, (1 P. Wms. 445.) the same doctrine was declared, and so it is understood by the elementary writers. (Mitford, 115. Cooper, Equ. Pl. 149.) The reason of the rule seems to be, that until the creditor has *established his title, he has no right to interfere, and it would lead to an unnecessary, and, perhaps, a fruitless and oppressive interruption of the exercise of the debtor’s rights. Unless he has a certain claim upon the property of the debtor, he has no concern with his frauds. On the strength of settled authorities, I shall, accordingly, grant the motion for dissolving the injunction.

Motion granted.