Dana v. Stanford

It has .been held by this.' court, and &ko by the Sr preme Court, that the original remedy by creditor’s bill, in cases lite this, is. not impaired or superseded by the statute allowing certain proceedings supplementary to- execution, the statute being cumulative to the original .chancery remedy,- This is' not a bill for discovery. The complaint shows that all the property of the debtor- was assigned to Stanfom. Brothers, -and -mentions the particular property, and shows that Deite -had no other, property.

There can be-no objection to the complaint on-this ground.

The defendants counsel cites, some authority in Hew York showing tihafca creditor’s bill cannot be maintained, until after execution has *184expiredbut those cases were cited under a particular statute in that ■ State, and are not applicable to a case like this. It is stated in the complaint that the debtor has no property in his hands whatever, and that it has ¿11 been transferred to Stanford Brothers. This being confessed by the demurrer, there was no necessity for an execution at all, as the effort to pursue the debtor’s property under such circumstances was utterly uséless. The' Supreme Court, in a recent case, has decided that a creditor’s bill may be maintained in some cases before judgment',

The complaint states that this assignment was made to prefer creditors. If so, it was fraudulent as to the plaintiff. It also shows that the debtor retained an interest in the property assigned, and if so,- the assignment was void on this ground also, and there was no necessity for.setting out the particular agreement or instrument by which the assignment was made.

The demurrer is overruled with leave to defendants to answer, by paying costs. =■