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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 persons indebted to the said defendant.
That, from the facts and circumstances hereinbefore stated and charged, the plaintiff has reason to believe, and
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,
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].
( 7.) ASSIGNMENTS AND Trusts.
Complaint by a receiver in the nature of a creditor's bill, and
to set aside an assignment as fraudulent.
SUPREME COURT-COLUMBIA COUNTY.
William A. Porter
agt. . Richard F. Clark and John L. Williams.
The plaintiff complains of the defendants, and shows to the court that heretofore, and on or about the 27th day of February last past, the Dutchess County Iron Company duly recovered a judgment in this court, in their favor, as plaintiffs in such action, against the defendant, John L. Williams, who was defendant in such judgment, for the sum of $508.32, which said judgment was duly docketed, and the judgment roll in same duly filed in the office of the clerk of Columbia county, on the 27th day of February last past, as will more fully appear by reference to the same.
1 The action is brought by the plaintiff, as receiver, appointed by a judge, in proceedings supplementary to execution. The Court of Appeals held that an action could be maintained by him, to set aside a fraudulent assignment of real as well as personal property, inasmuch as he represents the creditors, and does not stand merely in place of the debtor ( 5 Selden, 142); overruling decisions, at General Term, in Seymour v. Wilson (16 Barb., 294) and Hayner v. Fowler ( 16 Barb., 300 ).
2 The plaintiff's character, as receiver, might properly be inserted in the title. I give the complaint, however (with some trifling omissions of irrelevant matter), precisely as it is set forth in the printed case.
That on the 28th day of February last past an execution upon said judgment was duly issued, against the property of the said John L. Williams, to the sheriff of the county of Columbia, that being then, and ever since, and still the county of the residence of the said John L. Williams, which said execution was afterwards duly returned by said sheriff, to the clerk's office in said county, unsatisfied in whole or in part.
That after the return of such execution, as aforesaid, proceedings supplementary to such execution, in behalf of the plaintiffs in such judgment, were duly instituted against the said John L. Williams, in accordance with the provisions of the Code of Procedure in such case made and provided, under and by virtue of which proceedings, and by an order duly made therein, the plaintiff in this action was duly appointed receiver of the property, estate and effects of the said John L. Williams, with the usual powers in such cases made and provided and conferred, under and by virtue of an order made in said proceeding by Hon. IRA HARRIS, one of the justices of this court, and bearing date the 4th day of April, 1850. That the consideration on which such judgment was recovered accrued prior to the 1st day of January, 1850, as plaintiff is informed and believes, and so alleges.
That on the 5th day of January, A. D. 1850, and for a long time prior thereto, the said John L. Williams had. been the owner of, and had in his possession, a large amount of property, both real and personal, and had due to him divers amounts of money from divers individuals,
1 To recover, as receiver, it is necessary to allege in legal form, that the plaintiff was appointed receiver of the property, &c. The time, place and manner of appointment are traversable facts, and should be stated. (White, receiver, &c., o. Miles and Joy, 11 How., 36); see also Sheldon, administrator, v. Hoy, 11 How., 11; Pleadings, 291.)