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Montgomery Chancery Court rendered and conflicts with many decisions on the in an action brought to enforce payment by subject, as well as with the statute law. defendants of unpaid subscriptions to the Weed v. Pierce, 9 Cow. 722. stock of the Alabama Terminal & Improve- The case of Hadden v. Spader, 20 Johns. ment Company; plaintiffs appealing from 554, establishes the broad principle that so much of the decree as struck from their courts of equity have power to reach the bill a certain proposed amendment and re- property of a debtor which has been placed fused to hold respondents for assets of the in the hands of a third person, and to cause corporation which had come into their the same to be applied in payment of the hands; and respondents appealing from so demands of judgment creditors, who are much as held them liable upon the subscrip- unable to obtain satisfaction thereof by the tions. Reversed on both appeals.

ordinary process of courts of common law; The facts sufficiently appear in the opinion. and that it makes no difference that such

Messrs. Gunter & Gunter, for plain- property was put out of the reach of the tiffs, in support of petition for rehearing: creditors before their judgments were ob

Donovan v. Finn, Hopk. Ch. 59, 14 Am. tained. Dec. 531, is unsound, and was never accepted Storm v. Waddell, 2 Sandf. Ch. 511. in New York where it originated. In this The doctrine of Donovan v. Finn has not

she had been refused, and asked that the rever- before an answer was put in, the plaintiffs sion of these annuities be sold, and, out of the arrested the defendant's body by ca. sa. and moneys arising from the sale, to have her judg- had him in custody. Lord Hardwicke disment debt satistied. The trustees, by their missed the bill upon the ground that, the debt answer, submitted whether the sheriff could being legal, the taking of the defendant's body seize the reversion of the annuities and make released it, and there was nothing to support such assignment to a person for the plaintiff, the action. He distinguished the case from one and whether the same ought to be sold. The where there is an equitable demand, and the decree ordered the bill taken pro confesso as to party is taken in execution on a decree, in the principal defendant, and, as between the which case the court would, notwithstanding, plaintiff and the other defendants, that the issue all its process against his lands and trustees and the person to whom the sheriff effects, and the detention of the body is not in had assigned for the use of the plaintiff should equity a satisfaction; the reason being because assign all their reversionary estate or interest he is detained for the contempt, but at law the in the annuities to the plaintiff. That the two detaining of the body is a satisfaction, and the persons to whom the annuities were payable goods cannot afterwards be taken. Horn v. during their lives, and who, it was admitted, Horn, 1 Ambl. 79. bad the annuities in their possession, should A note to the above case states that, if the produce them for registration, and the same plaintiff had not taken out ca. sa., the bill had should afterwards be returned to them subject been proper to subject the stock in the hands of to the order of the court, and that, after their the trustees. The case has often been cited by deaths, the plaintiff, or such person as should courts and judges holding that a chose in acbe interested therein, should be at liberty to tion might be subjected, in equity, to the payapply to the court to have the orders for the ment of a judgment after return of no property annuities delivered to them.

found, as an authority for their position on Partridge v. Gopp, 2 Ambl. 596, 1 Eden, 163, the question involved. On the other hand, is a case that has been cited as an authority courts and judges taking the opposite view say in favor of the view that a judgment creditor, that it is no authority for that doctrine, as the after return of execution unsatisfied, may, in statement to that effect is nothing but a note equity, take and apply intangible property of the reporter. The fair view to take of it which could not be reached by an execution would seem to be that it is a sort of negative against property, to the payment of his judg- authority of not quite as much value as though ment; but, as was properly said by Judge Wood- it had been a dictum of the lord chancellor to worth in Hadden v. Spader, 20 Johns. 554, the effect stated in the note. infra, the doctrine laid down in that case was, A woman being entitled under the will of "that no man has such a power over his own her father to £1,000 stock in 3 per cents, and property, to dispose of it so as to defeat his to some other stock, and also to a share of the creditors, unless for consideration ;" and the residue, married, and, subsequent to the maronly reason given for advancing the case as an riage, a settlement by indenture was made, reauthority for the doctrine above mentioned is citing a parol agreement before the marriage that, neither in the argument of counsel, nor in to settle her property; and settling it in purthe opinion of the lord keeper, is there a diff- suance of that agreement in trustees upon trust, culty suggested that equity could not reach out of the annual proceeds to pay £100 a year property of this description ; the objections to to the separate use of the wife, and pay the the relief were on other grounds.

remainder of the proceeds to the husband for But, as has been said, the same may be life, then to the wife for life, then among the stated of Taylor v. Jones, 2 Atk. 600, supra, children of the marriage as the survivor should

In an action in equity by a judgment cred- appoint. The husband assigned his life interitor after a fi. fa. against defendant's goods est to trustees upon trust to pay another perand nulla bona were returned, to subject pub- son. In an action in equity brought by the lic stock belonging to the defendant, which was creditors of the husband, after the death of in trustees' names, to the payment of the debt the wife, against the husband and his children, due the plaintiffs, after the bill was filed and 'the executrix of the wife's father, and the been followed in any case since, nor, so far Candler v. Pettit, i Paige, 427 (the chanas I have seen, approved by more than two cellor said: I have no reason to believe judges.

that the court will ever abandon the broad Beck v. Burdett, 1 Paige, 305, 19 Am. Dec. ground taken in Hadden v. Spader, 20 Johns. 436.

554); Eameston v. Lyde, 1 Paige, 637, 19 There are two classes of cases where the Am. Dec. 454; Ager v. Murray, 105 U. S. plaintiff is permitted to go into this court 129, 26 L. ed. 943; Pacific Bank v. Robinfor relief after he has proceeded to judg. son, 57 Cal. 523, 40 Am. Rep. 121. ment and execution at law without obtain- The right to subject equitable assets in ing satisfaction of his debt.

aid of an execution at law pertains to the In one case the plaintiff comes here to ob- original jurisdiction of the chancery court. tain satisfaction of his debt out of the prop- Pacific Bank v. Robinson, 57 Cal. 523, 40 erty of the defendant which cannot be Am. Rep. 121; Rice v. Burnett, Speers Eq. reached by execution at law.

579, 42 Am. Dec. 336; Shainwald v. Lewis, In such cases the actual return of the ex. 6 Fed. 766; Bayard v. Hoffman, 4 Johns. ecution unsatisfied is necessary to give this Ch. 450. court jurisdiction to decree satisfaction out The purpose and construction of the New of the equitable property of the defendant.' York statute were affirmatively to overrule assignee of the husband's life estate, to have | ance effected by the debtor on his own life were the settlement and assignment declared fraud- fraudulent and void as against creditors under ulent and void against creditors, and set aside, the statute 10 Car. I. The chancellor (Lord and to apply the share of the wife in the estate Manners) said that with respect to the question of her father to the payment of the claim of raised upon the statute he entertained some the creditors of the husband, the lord chancel- doubts whether a transfer of policies of inlor (Thurlow) held that the settlement was surance, which could not, at the time of the valid; but, even if it had not been so, that the assignment, be brought within the reach of plaintiffs had no equity against this fund. That creditors, could be considered as fraudulent and Taylor v. Jones, 2 Atk. 600, supra, had gone covinous as against them. That in the case of further than he was aware of, and as to the Dundas v. Dutens, 1 Ves. Jr. 196, 2 Cox Ch. case of Horn v. Horn, 1 Ambl. 79, supra, it | Cas. 235, supra, the question was, whether seemed merely the private opinion of the re- stock that had been settled could be brought porter, and that, whenever it became necessary within the reach of creditors. He further to consider that question, he should hesitate stated that he had a note of that case, which, some time before he followed those cases. Dun- on this point was more full than the printed das v. Dutens, 1 Ves. Jr. 196, 2 Cox Ch. Cas. report of it, which he would briefly state; that 235.

in that case Lord Thurlow said: “Is there any This is the substance of what was decided by case where stock standing in a trustee's name Lord Thurlow, as given in 2 Cox. Ch. Cas. and can be made available to pay debts, or that 1 Ves. Jr. The result is stated the same, and debts (and stock is a chose in action) shall be it may be said that the substance of what Lord transferred to creditors for the purpose ? You Thurlow said is substantially the same, but it cannot have an execution at law against such is in different language. The language used in effects. The opinion in Horn v. Horn, 1 Ambl. the report in Cox Ch. Cas. would seem to indi | 79, is so anomalous and unfounded that forty cate that the decision went upon the ground such opinions would not satisfy me. It would be that the settlement was not fraudulent, and preposterous and absurd to set aside an agreethat what was said on the subject, that the ment which, if set aside, leaves the stock in plaintiffs could not go against the fund in the name of a person where you could not equity, was not necessary to the result.

touch it." The lord chancellor further said From all this it would appear that the case, that the creditors could not have made their as an authority on the subject under consider policies of insurance available, either at law ation, is justly liable to the criticism made or in equity, during the life of the judgment upon it by Chancellor Kent in Reade v. Living- debtor, for, independent of the objection that a ston, 3 Johns. Ch. 490, 8 Am. Dec. 520, viz.: chose in action is neither subject to an execuThat it cannot be said, from the report of the tion nor to be attached in equity by creditors case, on which ground the bill was dismissed, in the lifetime of the debtor, here the debtor nor does it even appear whether the creditors himself could recover nothing upon these poliwere prior or subsequent to the settlement; cies; and that he therefore had some doubt and that “a case so uncertain and so variously whether this assignment could be said to be reported can be of no material use or author- made with intent to delay or defraud creditors ity." But, as will be seen hereafter, there is within the meaning or provisions of the statsome question whether either of the reports of ute. After sayiug all this upon the subject the case contain all, or exactly what, Lord | under consideration, he further said: “But, Thurlow said on the subject.

without determining that point, how does this Grogan v. Cooke, 2 Ball & B. 230, was an case stand, upon the consideration for which equity action by a judgment creditor to reach the assignment was made?" And then he propolicies of insurance on the life of a deceased ceeded to decide that there was a valuable condebtor who had assigned the same in trust for sideration for the assignment, and for that the benefit of his mother-in-law and children, reason the latter was not fraudulent but valid. and who, after the assignment, had been taken This being so, what the value of the case as in execution on the judgment and died insolvent an authority on the point under consideration in prison. The first question raised in the case seems to be left to determination, The case is was whether assignments of policies of insur-' valuable, however, for the statement of Lord the doctrine of Donovan v. Finn, and to es-Jones, 2 Atk. 600; King v. Marissal, 3 Atk. tablish firmly the contrary doctrine of Had. 192; Partridge v. Gopp, 2 Ambl. 596. den v. Spader, 20 Johns. 554.

At an early date the broad doctrine of Brown v. Bates, 1Q Ala. 432; Dunlevy v. Hadden v. Spader, 20 Johns. 554, was acTallmadge, 32 N. Y. 460; Child v. Brace, cepted as the law of this state. 4 Paige, 309.

Vandegraaff v. Medlock, 3 Port. (Ala.) If the property is not subject to levy or 389, 29 Am. Dec. 256; Morgan v. Crabb, 3 sale, or if the creditor has obtained no lien, i Port. (Ala.) 470; Roper v. McCook, 7 Ala. he must show his remedy at law exhausted 318; Lyon v. Bolling, 9 Ala. 463, 44 Am. by the actual return of his execution that Dec. 444; Brown v. Bates, 10 Ala. 432; no goods or estate can be found (he has Reese v. Bradford, 13 Ala. 837; Sanders v. pursued his remedy at law to every extent) Watson, 14 Ala. 200; Floyd v. Floyd, 77 before he can file a bill to reach the equitable Ala. 353; Martin v. Carter, 90 Ala. 96, 7 property.

Bay State Iron Co. v. Goodall, 39 N. H. So. 510; Carter Bros. v. Coleman, 82 Ala. 223, 75 Am. Dec. 219; Tappan v. Evans, 181, 2 So. 354; Matheus v. Mobile Mut. 11 N. H. 311; Keightley v. Walls, 27 Ind. Ins. Co. 75 Ala. $9; Lehman v. Meyer, 67 386; Horn v. Horn, 1 Ambl. 79; Taylor v. 'Ala. 401; Mixon v. Dunklin, 48 Ala. 455; Thurlow in Dundas v. Dutens, as given by Lord | fer of stock, the lord chancellor, Lord Eldon, Chancellor Manners as quoted above, inasmuch appears to have been of opinion that stock was as it differs materially in regard to force, as not within the statute of Elizabeth, and assents to what was said by Lord Thurlow, as reported to the opinion of Lord Thurlow in Dundas v. in either 1 Ves. Jr. 196, or 2 Cox Ch. Cas. 235, Dutens; though, under the peculiar circumsupra.

stances of the case, he afterwards appears to Where a bill in equity sought, among other have allowed the transfer to be made." things, to reach dividends upon bank stock, but Mathews V. Feaver, 1 Cox Ch. Cas. 278, 1 on the trial of the cause that claim was aban- Revised Rep. 39, is a case holding that an doned, Lord Chancellor Manners said : "As to assignment of a copyhold, although frauduthe claim upon the dividends of bank stock, it lent, cannot be set aside in equity, for the has been very properly abandoned. I listened reason that copyholds are not subject to debts, very attentively to Lord Thurlow in the case and, therefore, the assignment of them can of Dundas v. Datens, which was heard upon never be fraudulent against creditors; the readecree, and not upon motion, and he was clearly son being the same as that given by Lord Thurof opinion that choses in action, of which de- low in Dundas v. Dutens, why the fraudulent scription is stock, could not be reached by the assignment of a chose in action cannot be set process of this court. My note of this case is aside in equity. more full than that which has been reported. Caillaud v. Estwick, 2 Anst. 381, was a suit He there states his opinion to be that property in equity for an injunction to restrain the colin the funds, being a chose in action, cannot lection of a judgment rendered in an action in be attached.” M'Carthy v. Goold, 1 Ball & B. trespass against the plaintiff in favor of the 387.

defendant. The merits of the case are not gerIn an action by a wife to aside an assign- mane to the question under consideration, but ment of stock by her husband in his lifetime as the counsel for the defendant, in answer to the fraudulent, Lord Chancellor Eldon said of the attempt to show cause why the injunction matter under consideration, that "the question should continue, said that stock which could is very nice and difficult. In Taylor v. Jones not be taken on fieri facias would not be taken the master of the rolls got at it; but he got by any process of equity to assist the execuat it through a doctrine which, as reported, it tion; and it was so held by Lord Thurlow in is very difficult to maintain ; and which seems the case of Dundas v. Dutens, where he deto have surprised Lord Thurlow very much in clares his opinion that the note at the end of Dundas v. Dutens. If, therefore, the decision Horn v. Horn, 1 Ambl. 79, was not law. The was to turn upon the latter doctrine, I should chief baron, in delivering the opinion of the wish to look at those authorities ; but I think court, said, among other things: "I remember the former view of the case will decide it." applying on behaif of the Crown, to have the Rider v. Kidder, 10 Ves. Jr. 368.

assistance of equity, in aid of an extent, to get Sims v. Thomas, 12 Ad. & El. 536, 4 Perry at stock in the funds, and it was refused." & D. 233, 3 L. J. Q. B. N. S. 399, was an action In Barrack v. M'Culloch, 3 Kay & J. 110, 26 at law upon a bond, and one of the questions L. J. Ch. N. S. 105, 3 Jur. N. S. 180, 5 Week. in the case was whether a bond in grant of an Rep. 38, it was held that an investment of annuity stated in the pleadings were goods and money in the purchase of stock in the names of chatteis within the meaning of 13 Eliz. chap. trustees upon trust for the children of the 5, and, in speaking on this subject, Lord Den settler, he at the time being unable to pay his man, Ch. J., among other things, said : "In debts, could not be attacked as fraudulent and Dundas v. Dutens, which arose on an assign- void under the statute 13 Eliz. chap. 5, but for ment of stock, the lord chancellor, Lord Thur- the passage of the statute 1 & 2 Vict. chap. low, says: 'Is there any case where a man, 110; but as, since that act, money or stock may having stock in his own name, has been sued be taken in execution, such an investment would for the purpose of having it applied to satisfy be fraudulent and void as against creditors, creditors? Those things, such as stock, debts, and set aside in equity. What was said on the etc., being choses in action, are not liable. subject was dictum, however, as the court disThey could not be taken upon a levari facias.' missed the suit for other reasons. In Rider v. Kidder, which was a case of trans- The first American case on the subject is

Un

Dargan v. Waring, 11 Ala. 988, 46 Am. Dec. | 82 Ala. 181, 2 So. 354; Matheus v. Mobile 234.

Mut. Ins. Co. 75 Ala. 89; Miller v. Sherry, In 1844 our legislature passed a statute, 2 Wall. 249, 17 L. ed. 830; Lehman v. now embodied in § 814 of the Code, which Meyer, 67 Ala. 401; Evans v. Welch, 63 is a transcript of the New York statute. Ala. 255. This statute was construed in the case of The court of chancery had original and Brown v. Bates, 10 Ala. 432, in accordance inherent power to compel the application of with the construction put upon the same choses in action to the satisfaction of a law by the courts of New York, which was, į judgment on a return of nulla bona at law. in the language of the court of appeals in Hadden v. Spuder, 20 Johns. 562; 1 New York, in the case of Dunlevy v. Tall- Spence, Eq. Jur. chap. 7, p. 709; 1 Pom. madge, 32 N. Y. 460, to remove the doubt Eq. Jur. $$ 34, 35. cast upon the law by the decision of Dono- When the law, once sufficient, fails for van v. Finn.

any cause, as from the abolition of impris. It is now too late to revive the defunct onment for debt, the jurisdiction of equity doctrine of Donovan v. Finn.

at once arises. Ex parte Hardy, 68 Ala. 340; Floyd v. Powell v. Howell, 63 N. C. 283; Hook v. Floyd, 77 Ala. 353; Martin v. Carter, 90 Fentress, .62 N. C. (Phill. Eq.) 229. Ala. 96, 7 So. 510; Carter Bros. v. Coleman, The powers of a court of equity are as Bayard v. Hoffman, 4 Johns. Ch. 450, which this case may easily, and with more safety, be was an equity suit brought by the general as- decided upon its own intrinsic circumstances." signees for the benefit of creditors of a firm to He then proceeds to decide, what was have declared void an assignment of stock pur- doubtedly correct. that the assignment of the chased by one of the members of the firm with husband for the benefit of his wife and chilmoneys derived from his wife's estate, which dren, being voluntary, was void, and, being so, assignment was made to trustees for the bene- it was swept aside by the general assignment fit of his wife and children previous to the of the firm of which he was a member, of all general assignment by the firm to the plaintiffs. Its property, legal and equitable, rights in acWhen this assignment was made it was sup- tion as well as others. As the chancellor himposed that the estate of the firm would be ade- self makes this statement that the case did not quate for the payment of their debts, and in necessarily turn "upon this point" it is sugthe assignment of the firm to the plaintiffs the gested that what he said on the subject here above-mentioned stock, subject to the life estate being considered is lacking in the force and of the wife's mother (which was not ques. effect which it would have had, if the case had tioned), was included in the inventory of the "necessarily turned upon this point." property to be assigned, and exhibited to its Judgment creditors after the return of a creditors. There no actual fraud sug. fi. fa. nulla bona may proceed in equity against gested in the pleadings. The chancellor said one to whom their judgment debtor had, at the that the only difficulty in the case arose from time he stopped payment, transferred a portion the nature or quality of the property contained of his goods in trade for the purpose of securin the settiement; and, after stating what had ing him the amount that the judgment debtor been decided in Taylor v. Jones, 2 Atk. 600, and was indebted to him, and to whom the judgKing v. Dupine in a note to that case, in IIorn ment debtor had subsequently assigned the balv. lIorn, 1 Ambl. 79, and Partridge v. Gopp, ance of all his property in trust to pay all the 2 Ambl. 596, 1 Eden, 163, supra, and approving creditors upon certain conditions which the the doctrine that would seem to be inculcated creditors refused to accept, whereby it was conin those cases said: "It may now be perti- ceded that the assignments became void, -to nently asked, When and where have these deci. reach the proceeds of the property in the hands sions been overruled? I have not discovered of the defendant, and apply them to the pay. anything weightier than a dictum or doubt of ment of their judgments. The residue of the Lord Thurlow, repeated in subsequent cases." property assigned to the defendant in this case He then proceeds to consider the cases of Dun- included the balance of the stock in trade and das v. Dutens, 1 Ves. Jr. 196, 2 Cox Ch. Cas. debts due the judgment debtor. Spader . 235, 1 Revised Rep. 112 ; Caillaud v. Estwick, Davis, 5 Johns. Ch. 280. 3 Anst. 381; what was said by Lord Eldon in The above case was afterwards removed by Nantes v. Corrock, 9 Ves. Jr. 189, 7 Revised appeal to the court of errors (20 Johns. 551), Rep. 156, and Rider v. Kidder, 10 Ves. Jr. 368; where the decision of the chancellor was af. M'Carthy v. Goold, 1 Ball & B. 387, supra; and, firmed. The principal opinion in the court of after condemning them generally in the princi- errors was written by Woodworth, J., who, ple stated therein, and repeating his declaration after considering all the English cases for and that they were only instances of dictum and against the doctrine that a chose in action may doubt, and as such could not be considered as be reached and applied in equity to the satisshaking the decisions in favor of the doctrine action of a judgment after a return of nulla that equity, in the absence of a trust or fraud, bona, saying in relation to Taylor v. Jones, 2 may be successfully appealed to, to subject a Atk. 600, supra, that the case was important chose in action to the payment of a judgment to show that the nature of the property sought after a return of no property found; he then to be recovered interposes no formidable bar. says: "If the case necessarily turned upon rier; and that for this purpose it was an authis point, I should not feel myself justified, thority; and, in reference to Horn v. Horn, 1 from anything I have hitherto seen, to abandon, Ambl. 79, that, without reference to the nature without still more consideration, the authority of the note of the reporter, he thought it man. of the analogous case of Taylor v. Jones. But 'ifest from the language of Lord Hardwicke that

was

vast, and its processes and procedure as Copp, 2 Ambl. 596; Scott v. Scholey, 8 elastic, as all the changing emergencies of East, 467; M’Dermutt v. Strong, 4 Johns. increasing complex business relations and Ch. 690; Grogan v. Cooke, 2 Ball & B. 233; the protection of rights can demand. Spader v. Davis, 5 Johns. Ch. 280.

Toledo, A. A. E N. M. R. Co. v. Pennsyl- The contrary of Donovan v. Finn is the vania Co. 19 L. R. A. 399, 5 Inters. Com. recognized rule of the courts of this country Rep. 545, 54 Fed. 746; Janney v. Buell, 55 having the greatest authority. Ala. 408.

Van Ness v. Hyatt, 13 Pet. 300, 10 L. ed. Donovan v. Finn was contrary to prece- | 171; Miller v. Sherry, 2 Wall. 248, 17 L. ed. dents extant, from the most distinguished 829; Board of Public Works v. Columbia judges.

College, 17 Wall. 530, 21 L. ed. 691; Hatch Hendricks v. Robinson, 2 Johns. Ch. 283; v. Dana, 101 U. S. 205, 25 L. ed. 885; Lucas Angell v. Draper, 1 Vern. 399; Balch v. v. Bank of Darien, 2 Stew. (Ala.) 282; Wastall, 1 P. Wms. 445; Stileman v. Ash- Brown 5. Bates, 10 Ala. 432; Morris v. down, 2 Atk. 477; Shirley v. Watts, 3 Atk. Callanan, 105 Mass. 129; Wiggin v. Hey200; Taylor v. Jones, 2 Atk. 600; King v. wood, 118 Mass. 514; Sparhawk v. Cloon, Varissal, 3 Atk. 192; Edgell v. Haywood, 125 Mass. 263; Daniels v. Eldredge, 125 3 Atk. 352; Bennet v. Musgrove, 2 Ves. Sr. Mass. 356; Drake v. Rice, 130 Mass. 410; 51; Horn v. Horn, 1 Ambl. 79; Partridge v. l Bay State Iron Co. v. Goodall, 39 N. H. 223, the only objection was the ca. sa. ; that, if that that the following decree was thereupon enhad not existed, it seems to be treated as a tered : "Counsel having been heard in this plain case for relief ; that Partridge v. Gopp, cause, and deliberation being thereupon had, 2 Ambl. 596, was also much in point, as it de- and a majority of the court concurring in the cided that money in the hands of a donee might opinion dellvered by Mr. Justice Woodworth," be reached, and that, neither in the argument etc. What effect should be given to this reof counsel, nor in the opinion of the lord keeper, cital or preamble in the decree may, perhaps, was there a difficulty suggested that equity be more intelligently determined after consiucould not reach property of this description ; ering subsequent cases in which it was alluded and that the objections to the relief were on to. Eight of the twenty-eight members of the other grounds,-he characterized the statement court were in favor of reversing the decree of of Lord Thurlow in Dundas v. Dutens, 1 Ves. the chancellor, but no one of their number apJr. 196, 2 Cox Ch. Cas. 235, as dictum, and pears to have ventured to present their views, stated that Lord Thurlow was the first to ques. or state the exact position supported by their tion the doctrine under consideration, and ad- i votes. The case has probably been as fremitted that, if a dictum could overthrow it, it quently cited as any other as high authority in had been done ; that the subsequent cases had favor of an afirmative of the proposition under followed the same rule, and that, however cor- consideration. rect those decisions may have been, the court In Egberts v. Pemberton, 7 Johns. Ch. 210, whose decision he was delivering was not fa- the chancellor, in allowing an injunction so far vored with any reasoning or authority in their only as to prevent the defendant (the judgment support. Spencer, Ch. J., said he was of opinion debtor) from collecting and receiving the amount that the decree ought to be affirmed on the of judgments which he held against the other principle and authorities stated in the opinion defendants, said that the cases of Bayard v. delivered by Woodworth, J., in which he fully Hoffman, 4 Johns. Ch. 450, and Spader v. concurred. Platt, J., concurred in affirming the Davis, 5 Johns. Ch. 280 (Affirmed in 20 Johns. decree of the chancellor, but in doing so said 554, supra, sub nom. Hadden v. Spader), only that he did not understand that the chancellor applied to property held in trust for the debtor, had proceeded on the broad ground that the and that they did not authorize a general incourt of chancery had jurisdiction to reach all terference with the debts due to the debtor. the choses in action of the debtor, so as to sub- The chancellor (Kent) who thus wrote should ject them to execution, or render them thus have known whereof he spoke, as he was the available to creditors; that the question in the same who delivered the opinions and judgments case was not whether the defendant was in- in the two cases first above named. debted to the judgment debtor, and was, there In McElwain v. Willis, 9 Wend. 548, Tracy, fore, bound to respond to his creditore, but Senator, said that there seemed to be some whether the defendant had been guilty of an doubt how far English chancery interferes to actual or constructive fraud in aiding the judg- assist a judgment creditor where the property ment debtor to conceal and dispose of his prop- consists of choses in action not liable to be erty, to the injury of the latter's creditors. taken in execution, the existence of the bankHe then proceeded to say: "I am not prepared rupt law in that country rendering such into extend this doctrine to any other cases than terference generally necessary; that there those wherein the trustee received goods liable were some early cases which showed pretty disin themselves to execution under circumstances tinctly the exercise of this power, and that in which imply fraud, in fact or in law, as against New York the principle was established in cercreditors. In an abstract view, it may appear tain cases, and was confirmed by the court of proper to extend the remedy in favor of cred

after
full

discussion in Hadden itors to every chose in action of the debtor. Spader, 20 Johns. 554. The subject under conBut in my judgment such power has not yet sideration was not directly before the court, been conferred on our courts of justice.

the decision being that such an action could I feel that we are treading on new ground, and not be maintained until after the issue and reI am unwilling to commit myself beyond the turn of an execution unsatisfied. case now before us." The report further states In Beck v. Burdett, 1 Paige, 305, 19 Am.

errors

V.

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