Wiltshire v. Marfleet

1 Edw. Ch. 654

• Court: New York Court of Chancery
• Decided: July 1, 1833
• Status: Published

Opinion

The Vice-Chancellor.

Creditors can only have their remedy against a debtor after the return of nulla bona upon an execution issued under a judgment at law. If it were not so, a creditor might file a bill upon every sale where a debtor did not pay him.

It is true, the bill in this case charges the purchases to have been made in fraud ; at a time when the defendant was insolvent ; and with an intention to abscond and carry awáy thé avails: but then again, the particular prayer evidently recognizes the sales and seeks.payment of judgments to be recovered on account of such sales. It proceeds throughout upon the subsisting relation of debtor and creditor. If the bill had shown the fraud and charged that no' valid sale had taken place, in fact, and had considered the goods as still being the property of the complainants, it would have been supported and the procéeds arising from any disposition of the property which the defendant might make could have been stopped in any place. Then, the complainants would have appeared as owners and not as creditors. Enough appears to entitle the complainants to relief as owners, but the specific prayer is not á’dapted to such a case.

Nor will the general prayer help the complainants. It is not put in the alternative ; it is “ and” for further relief. Chancellor Walworth has thus expressed himself in Colton v. Ross, 2 Paige, 896 : “ where the case made by the bill may entitle the “ complainant to one kind of relief or another, but not to both, “ the prayer should be in the disjunctive. So, if the complain- “ ant is in doubt whether the facts of his case entitle him to “the specific relief prayed for or tó relief in - some other form, “ his prayer, concluding for general relief, should be in the “ disjhntive. And, in such a case, although he is not entitled “ to the relief specifically prayed for, he may, under the gene- “ rai prayer, obtain any other specific relief, provided it is consistent with the case made by the bill (per Thompson J. 1, ilJohn R. 559 ; 13 Ves. jun. 119; 1 John. Ch. R. 117:2 Young “ & Jervis, 33; 2 Peters’ R. 595.) But, if a complainant prays “ for particular relief and other relief in addition thereto, he “ can have no relief inconsistent with such particular relief, al- “ though founded upon the bill.” Now, the general prayer here is, by the use of the conjunction, a part of and to be taken in connection with the particular prayer: and if, under the statements of the bill and on account of the case made, this particular prayer cannot be granted, then the general one is powerless.

I consider the bill demurrable; and while I hold that opinion, I cannot sustain the injunction. Indeed, I am given to understand that actions at law are progressing against this defendant in which he is held to bail. There is no justice in allowing two remedies in a case which the complainants themselves reduce, by their mode of action, to a mere ordinary one of debtor and creditor. However improper and dishonest the conduct of this man may be, I must, nevertheless, dissolve the present injunction.