Steward v. Stevens

The Chancellor. The first and second causes of demurrer assigned, it is not necessary now to consider. The third cause of demurrer is well taken, and is conclusive. Thejfieri facias was returned, and the bill filed, a long time before the return day. The jurisdiction of this court, to apply the property of the defendent, which is beyond the reach of execution at law, 1o the satisfaction of the debt due to the judgment creditor, proceeds upon the ground that he has exhausted [171] his remedy at law. Cassidy vs. Meacham, 3 Paige, 312. til the return day of the execution, it is the duty of the officer to seize and sell any property of the defendant, found within his county. The execution, therefore, cannot be considered as legally returned unsatisfied, until the return day. In the case under consideration, it does not appear but that the officer, before the return day of the fieri facias, could have found property sufficient to satisfy the judgment. The statute {11. Stat., 385, sec. 25,) provides, that “ whenever an execution aga nst the property of the defendant, :h dl have been issued on a judgment at law, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution, may file a bill in chancery against such defendant,” &c. This section is similar to a provision of the revised statutes of New York, and in that state it has been uniformly held that a creditor’s bill cannot be properly filed, until after the return day of the execution issued on the complainant’s judgment, although' the execution had been actually returned before the return day. (See Beck vs. Burdett, 1 Paige, R., 305; Edmeston vs. Lyde, Ib. 637; Clarkson vs. De Peyster, 3 Paige’s R., 312, 320; Mc Elwin vs. Willis, 9 Wend., 560.) And this is unquestionably the true rule. A defendant ought not to bo harassed by a suit in chancery, when he has property which can be reached at law, during the life of the execution. The demurrer is well taken, and must be sustained. Demurrer sustained.