following form (No. 34), or with such variations as may be required.]

And the plaintiff further alleges, that the said defendant, L. K. W., has for several years past been engaged in the business of farming, in the county of Cayuga, and also in the business of a carpenter, as plaintiff is informed

Walker were subsequently made parties for the purpose of avoiding the assignment. The case is reported under the title of Leitch v Hollister and others, 4 Coms., 211.

The action by creditor's bill is still in force, and may be resorted to, after execution returned unsatisfied in whole or in part. The Code has not repealed the provisions of the Revised Statutes (2 R. S., 173, §§ 38, 39) in reference to this action, except that portion which authorizes a discovery. That is, the allegations must be positive that the debtor has property, or interests in property, &c., not calling for a discovery thereof, but praying that the defendant be adjudged to apply such property to the payment of the judgment, &c. (Collin v. Doughty, 12 How., 458.)

But a creditor's suit to reach equitable property cannot be commenced until his remedy at law upon his judgment is exhausted, by the issuing of execution and its return unsatisfied, and these facts must be alleged in the complaint. (Parshall v. Tillou, 13 How., 7.)

Nor can it be sustained upon a judgment recovered in a justice's court, where the only execution returned unsatisfied was issued by the justice. It should be docketed in the County Clerk's office, and an execution against the real, as well as the personal property of the debtor, returned unsatisfied, to authorize such an action. (Crippen v. Hudson, 3 Kernan, 167.)

And to sustain such an action the plaintiff must be a udgment creditor. A simple contract creditor cannot have an action against the debtor and his fraudulent assignee, to reach the assigned property. (Reubens v. Joel, 3 Kernan, 488; see Pleadings, 172, 173.)

It may be remarked, however, that under the present practice it cannot, in ordinary cases, be necessary or advisable to commence an action of this character against the judgment debtor alone that is, where no assignment or other fraudulent incumbrance intervenes. An equally efficient and more expeditious remedy is provided in the supplementary proceedings which the Code prescribes. In these proceed

and believes, and that the said L. K. W. contracted, in or about the month of December, in the year one thousand eight hundred and forty-one, to build a house for one O. M. of Scipio, in the county of Cayuga aforesaid, whereby the said M. became liable to pay said W. for the building of the same, and for work and labor performed by him and his servants for said M., a large sum of money; and which sum was upwards of two thousand dollars, as the plaintiff is informed and believes; and the said M. is justly indebted to the said W. in the sum of one thousand dollars and upwards, and that such indebtedness is good and collectable.

That plaintiff is informed and believes that said L. K. W. is about to transfer said debt to one A. H.

That plaintiff is also informed and believes, that in the course of the said business of the said defendant, divers persons became indebted to him to a large amount, and that the said defendant has, at this time, debts due to him, and for which he holds divers securities and evidences, to the amount of several hundred dollars, and more than sufficient to pay the sum due to plaintiff upon his said judgment against him the said defendant; and that the said defendant has divers goods, wares and merchandise, or other articles of personal property, which belong to him or in which he is in some way or manner beneficially interested, and that he has equitable interests and things in action, of some nature or kind, which might and ought to be applied to the payment of the plaintiff's said judgment

ings the plaintiff may have all that he could get under the former creditor's bill, namely, a full discovery and examination, with the further remedy of an injunction and a receiver.

The two following forms (No. 34 and 35), for proceedings by creditor's bill, are in cases where property has been fraudulently assigned by the judgment debtor, and the actions are brought against the debtor and fraudulent assignee, to reach the assigned property.

against him the said defendant, and which cannot be reached by execution.

That the said defendant is the owner of, or in some way or manner beneficially interested in, some real estate in this state, or some chattels real, of some name or kind, or some contract or agreement relating to real estate, or the rents, issues and profits of some real estate; and also that the said defendant is the owner of, or in some way beneficially interested in, the stock of some company, incorporated or unincorporated, or in the profits of some company or copartnership; and also that he has in his possession, at the time of the commencement of this action, some money in coin or bank bills; and also that he has in his possession some securities for the payment of money; or that he has money deposited in some bank or elsewhere, to his credit; or that he has money or securities for the payment of money, held by some other person, in trust or otherwise, for his benefit.1

That being ignorant of the exact state of the property and affairs of the said defendant, he cannot specify more particularly than is above specified and charged, the nature and situation of the said property, interests or effects of the said defendant, or the amonnt or value of the same, or in whose hands or possession the property, interests and effects of the said defendant are, or the names of the sons indebted to the said defendant.

per

That, from the facts and circumstances hereinbefore stated and charged, the plaintiff has reason to believe, and

1 It is not necessary to set forth these allegations so minutely, nor is it believed to be proper to state them in so vague and general a manner, although it was customary and allowable under the old system of equity pleadings. Pleading being now a statement of facts, such only should be alleged as the plaintiff knows, or has reasonable cause to suspect or believe to be true.

does believe, that the said defendant has property, debts and other equitable interests, things in action, or effects, of the value of more than one hundred dollars, exclusive of all prior just claims thereon,' and which plaintiff has been unable to reach by execution on his said judgment against the said defendant.

That this action is not brought by collusion with the said defendant, or with any other person, or for the purpose of protecting the property or effects of the said defendant against the claims of other creditors, but for the sole and only purpose of compelling payment and satisfaction of the judgment so as aforesaid recovered against the said defendant.

Wherefore the plaintiff demands judgment, that the said defendant be adjudged to pay the plaintiff the amount so, as aforesaid, due to him for principal and interest on his said judgment, together with the costs and charges in this behalf sustained; and that the said defendant may be adjudged to apply, for that purpose, any property, real or personal, in law or equity, belonging to him, or held in trust for him, or in which he is in any way or manner beneficially interested; and also any money belonging to him, whether in his possession, or held by some other person for him; and, also, all debts due to him, and all other equitable interests or things in action belonging to him, or in which he is in any way beneficially interested; and in the mean time, that the said defendant may be enjoined and restrained from selling, assigning, transferring, delivering, negotiating, discharging, receiving, collecting,

1 Under the old practice, a demurrer would lie to a bill, if the amount in controversy was frivolous, fixed by statute at $100. The rule has been held, at special term, to apply to an action in the nature of a creditor's bill under the Code. (Shepherd v. Walker and Learned, 7 How. Pr. R., 46; see Pleadings, 693.)

incumbering, or in any way or manner disposing of, or intermeddling with, any debts or demands due to him, or any bills, bonds, notes, drafts, checks, book-accounts, mortgages, judgments, or other debts due to him, whether in his possession or held by some other person in trust for him, or to his use or benefit; and, also, from assigning, transferring, or in any manner incumbering or disposing of, or intermeddling with, any money in coin, bank bills, drafts or checks belonging to him, whether in his possession, or held by any other person in trust for his use or benefit, or any stock or interest in any private or incorporated company, or any property, real or personal, things in action, or chattels real, held by him, or by any other person for him, or in which he has any interest whatever, except where such trust has been created by, or the fund so held in trust has proceeded from, some person other than the said defendant. And that the said defendant may, also, be in like manner prohibited from making any assignment of his property, and from confessing any judgment for the purpose of giving preference to any other creditor over said plaintiff, and from doing any other act to enable other creditors to obtain his property. And that a receiver may be appointed, according to the course of practice in this court, and with the usual powers of receivers in like cases, of all the property, equitable interest, things in action, and effects of the said defendant. And that the plaintiff may have such further, &c., [as in No. 1].