Wayne County MI Archives Court.....Clark, V. Davis 1837 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/mi/mifiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 7:28 am Source: Cases In Chancery Written: 1837 CASES IN CHANCERY FIRST CIRCUIT James B. Clark and another v. Phineas Davis. Creditor's bill, what to state. a creditor's bill must contain the averments required by the 109th rule (rule 102 of 1858), and those averments mUst be sworn to. Creditor's bill with double aspect. A bill may be filed both to reach mere equitable interests and in aid of execution at law; and such a bill is not multifarious. Creditor's bill, waiver of right to file. The right to file a creditor's bill having once attached by the return of an execution unsatisfied, the party does not lose his right to file the same by the issuing of a new execution. General demurrer. A general demurrer for want of equity cannot be sustained, unless the court is satisfied that no discovery or proof properly called for by or founded on the allegation of the bill can make the subject matter of the suit a proper case for equitable cognizance, (a.) Demurrer ore tenus. Where a new cause of demurrer is assigned ore tenus, the cause must be co-extensive with the demurrer. Motion to dissolve an injunction. The bill filed in this case is framed with a double aspect. It sets up the return of an execution unsatisfied, and the issuing of another execution. It seeks to reach the equitable interests of the defendant, and also to aid the second execution. The jurat is special, and as follows: "State of Michigan, County of Wayne, ss. "Ezra C. Seaman, solicitor for the complainants, being duly sworn, says that he drew the draft of the foregoing bill of complaint, and knows the contents thereof; that the complainants are not citizens of the State of Michigan, but of the State of New York, as stated in the bill, as this deponent verily believes; that this deponent has examined the records, papers and proceedings in the suit stated in the bill of the Complainants, against the defendant, Phineas Davis, in the office of the clerk of the circuit court for said county of Wayne, and verily believes that a judgment was obtained in said suit, and that an execution was issued thereon and returned unsatisfied, as stated in said bill. And this deponent further says that he, as attorney for the plaintiffs, procured a new execution on said judgment to be issued and delivered to the sheriff, as stated in the bill, on the 28th day of July instant; and that this bill is not exhibited by collusion with said Phineas Davis, or for the purpose of protecting the property and effects of said Davis, or any part thereof, against the claims of other creditors, but for the sole purpose of compelling payment and satisfaction of the money due on the aforesaid judgment, the whole amount of which deponent believes to be unpaid, and the judgment in full force." Sworn, etc. Upon this the usual injunction was allowed. T. Romeyn, in support of the motion. The jurat is defective. 1. No sufficient cause is shown for its not being sworn to by the complainants. 2. The substance of the jurat is not according to the rule of the court. (Rule 14.) (b.) 3. The averments required by the 109th rule are not sworn to at all. These averments are material, and without them the bill cannot be sustained. (McElwain v. Willis, 3 Paige, 505.) E. C. Seaman, for complainants. The affidavit does contain and establish, by the oath of the solicitor in the first place, an excuse why it was not made by one of the plaintiffs; and, secondly, it establishes all the material allegations of the bill required by the revised statutes to give the court jurisdiction (R. S., 365, secs. 25, 26), and substantially complies with the rules of court. It is averred in the bill that the plaintiffs are informed and believe that the defendant has equitable interests, choses in action, notes, accounts, judgments, etc., amounting to over one hundred dollars, etc., and praying a discovery. This is, in effect, but a formal averment, calling for discovery. The affidavit shows that the plaintiffs are citizens of New York, and most likely they have no information whatever as to the equitable effects and choses in action of Davis. At all events, their solicitor here does not know, and cannot know what information the plaintiffs have on the subject, nor what their belief is on the subject; and, therefore, could not swear that the plaintiffs were informed and believed the matters stated in the bill. The solicitor might swear that he had been informed and believed himself that Davis has notes, etc., but he could not swear that the plaintiffs had been informed and believed. The form of affidavit in the rules does not, therefore, apply to cases of bills where an agent or solicitor swears to the subject matter. Rule 14 does not apply to cases of bills, etc., sworn to by an agent, for he cannot swear to what the plaintiff believes, and seldom can swear to what the plaintiff has been informed. The statute and rule 110 (c) has been complied with, by swearing to all the material parts of the bill, and all the chancellor deemed necessary when the injunction was granted. The rules of court, requiring bills to be sworn to, apply to only so much of the bill as seeks to reach choses in action, etc., on the ground of execution returned unsatisfied. The injunction to restrain the party from disposing of real and personal property, which might be levied on under execution, was properly granted, according to the English rules, on a separate affidavit, merely setting forth the recovery of judgment and suing out execution. The Chancellor.—The jurat is insufficient. It is special, and none of the averments required by the 109th rule are sworn to at all. These averments are material; without them the injunction cannot be sustained. (See McElwain v. Willis, 3 Paige R., 505.) The injunction must be dissolved. Injunction dissolved. The complainant having obtained leave to file a new affidavit, the following affidavit was filed as an amendment: "Wayne County, ss. "Ezra C. Seaman, being duly sworn, deposes and says, that the complainants in this cause are not citizens or residents of the State of Michigan; that they were both absent from the State of Michigan when the bill of complaint was filed in this cause, and are still absent from this State as deponent verily believes; that this deponent is the attorney and agent of said complainants for the purpose of collecting the judgment set forth in the bill of complaint in this case; that this deponent has information in relation to the recovery of the judgment set forth in the said bill, and issuing of the several executions thereon, and the return of such executions; and from such information deponent verily believes all the matters set forth in said bill, in relation to the recovery of said judgment, issuing the several executions thereon, and the return of such executions, to be true, as therein stated, and that the whole amount of said judgment is due and unpaid. Deponent has also information in relation to the property, effects, choses in action and equitable interests and. rights of said Davis, and from such information deponent verily believes that said Davis had at the time of filing the bill in this cause, and the commencement of this suit, either in possession or held in trust for him (not including such trusts as have been created by and due person or persons other than said Davis himself), equitable interests, things in action, or other property of the value of upwards of one hundred dollars, exclusive of all prior just claims than as is set forth in said bill. Deponent further says that no answer has been put in in this cause, and further saith not." Subscribed, sworn, etc. The defendant then demurred generally, and insisted that the bill was not sustainable either as a creditor's bill or as a bill in aid of the execution. The cause was heard upon the demurrer. T. Romeyn, in support of the demurrer. As a creditor's bill it is insufficiently verified. Such bills must be verified by oath. (Rule 110.) The present bill is not verified by oath according to the rules. First. The jurat should be general, extending to the whole bill, and according to the form prescribed by the 14th rule. Second. Even if the jurat may be special, and extend to but a part of the bill, the present jurat does not cover the material statements in the bill. The last affidavit must be considered as superseding the former. The rule to amend was for "leave to file a new affidavit," not a supplemental affidavit. The new affidavit does not allege that the bill was not filed by collusion, etc., in the manner prescribed by the 109th rule. These allegations are material, and the want of them renders the bill demurrable. (McElwain v. Willis, 3 Paige, 505.) Again. If both affidavits are to be considered in force and subsisting, still neither of them covers the averments in the 8th folio, that the defendant has equitable interests, etc., property held in trust for him, etc. This is a part of the statement of the bill, and must be sworn to. (Rule 110.) The bill is not sustainable as a creditor's bill, because it shows an execution outstanding not returned, and not returnable at the time when it was filed, and to the levy of which property sufficient to satisfy the debt was subject. (See 3 Paige, 311.) The bill is not sustainable as a bill in aid of an execution on account of its vagueness and uncertainty. It does not state that the defendant was seized or possessed of any property, but merely states the belief of the complainants. (Mountford v. Taylor, 6 Vesey, 792.) There is no description of the property, nor of the incumbrances on it. The whole bill is vague, uncertain and informal. (See McElwain v. Willis, 9 Wend., 561, 567-8-9.) The bill is multifarious, and therefore, demurrable. (Mitford Ch. Pl., 118, and note.) The demurrer goes to the whole bill. (Boyd v. Hoyt, 5 Paige, 79.) Even were the general demurrer decided to be inapplicable, the objections now taken are good causes of demurrer, ore tenus. (Story's Eq. Pl., 365.) E. C. Seaman, for complainants. The want or defect of averment required by the 189th rule of court in New York, which is our 109th rule, has been held a defect of form only, and may be supplied by amendment. (McElwain v. Willis, 3 Paige, 506, 507.) The defect in this case, if it was a defect at all, was in the affidavit only, and not in the bill, and according to the case of McElwain v. Willis, was a defect of form only, at most, and has been cured by the amendment or new affidavit filed, call it by what name you choose. Such a defect cannot be taken advantage of on general demurrer, but must be taken advantage of either on motion or on special demurrer. A general demurrer is good only when it appears on the face of the bill that the complainant has no equity. (Story's Eq. Pl., 557, sec. 455.) Demurrers for all causes, except a want of equity, must be special. (Mitford's Pl., 213, 214; Story's Eq. PL, 357, sec. 455, 457.) The amendments to the "bill, being mere matters of form, and not of substance, are considered as forming part of the original bill, and refer to the time of filing the bill. (Hurd et. al. v. Everett, 1 Paige, 124; Mitford's Pl., 55, note, 330; Knight v. Matthews, 1 Mad. Rep., 307; Story's Eq. Pl., 689; Cooper's Eq., 340.) The original affidavit to the bill (which defendant's counsel claims is defective, and not cured even by the amendments and new affidavit) being required by the 110th rule of this court, either is or is not a necessary part of the bill itself; if not, then it is a mere preliminary matter, and the demurrer being to the bill only, and not to this preliminary affidavit, cannot reach it, even if it is defective or totally wanting. If it is a necessary part of the bill itself, then the amended affidavit cures the defect, by coming directly within the terms of the general order to amend, and is good without the special clause of which the defendant's counsel complains. If the affidavit to the bill is not a necessary part of the bill itself, then the question arises, is it necessary at all, unless for the purpose of obtaining an injunction or receiver before answer. That is the only object of it; the proceedings would be good without any affidavit at all. But if this be not the true construction, the worst construction that can be put upon it is that it is a mere irregularity of practice. If so, the only remedy the defendant could have would be to move to dismiss the bill, and this should have been done before appearing in the cause, or at the first opportunity after being informed of the irregularity. By appearing and putting in a general demurrer, and allowing more than six months and a term of the court to elapse without objection, it is now too late. The party has waived his right to raise any such objection. It has been expressly decided by Chancellor Kent, in two cases, that irregularities of practice are waived, if the objection is not made in a proper manner at the first opportunity. (Skinner v. Dayton, 5 Johns. Ch., 192; 2 Johns. Ch., 226.) The demurrer is general, and if too broad must be overruled. If a demurrer is bad in part, it must be wholly overruled, as it covers too much. (Janes v. Frost, 1 Jacobs, 467; Mitford's Pl., 214.) It is here attempted to combine together several imaginary causes of special demurrer, in order to make one good cause of general demurrer—a strange mode of argument. A bill may be filed as well in aid of an execution at law, to discover property that may be subjected to execution, as to reach mere equitable interests and choses in action. (Cuyler v. Moreland, 6 Paige, 274; Leroy v. Rogers, 3 Paige, 236.) A bill may be filed for the sole purpose of aiding execution at law, that is, for the discovery of property, that it may be levied on by the execution; in such case the execution must be out, and in the sheriff's hands ready to be levied on the property when the discovery is made. (Leroy v. Rogers, 3 Paige, 234 to 237; Angel v. Draper, 1 Vernon, 398, 399; 6 Ves., jun., 788.) And on a general bill without any special allegations, defendant will be compelled to discover all his property, including lands as well as personal estate, lying out of the jurisdiction of the court. (3 Paige, 235.) Taking out a new execution will not prevent the plaintiff from filing a creditor's bill to reach equitable interests, as long as the judgment is not paid, and property sufficient to satisfy it has not been levied on. (Cuyler v. Moreland, 6 Paige, 274.) Bringing suit on judgment, after return of an execution unsatisfied, and obtaining a new judgment, will not prevent a creditor from filing a creditor's bill on the original judgment, as the original judgment is not thereby extinguished. (Bates v. Lyons, 7 Paige, 86.) After judgment and an execution returned unsatisfied, if the judgment is assigned, the assignee may file a creditor's bill in his own name, and without taking out a new execution. (Gleason v. Gage, 7 Paige, 121 to 124.) The demurrer must be overruled, and if so, a receiver will be appointed, of course. (See 2 Paige, 343, 346; 7 Paige, 58, where Chancellor Walworth says complainant may move for an injunction or receiver.) If defendant is allowed to answer, it should be on the payment of costs. (7 Paige, 86, 124.) In all cases, on overruling a demurrer, leave to answer should be given only on the condition of paying costs and answering in a short period; such is the invariable rule at law. (See, also, 1 Hoff. Ch. Pr., 215.) The Chancellor.—The affidavit filed under the leave of the court must be considered as cumulative, and does not supersede the first. They are both annexed to the bill, and stand of record. Treating the two affidavits as of force and subsisting, all the allegations of the bill, which are required by the rules and practice of the court, in order to entitle the party to file and prosecute a creditor's bill in this court, are sworn to. This is sufficient upon a general demurrer. The existence of the judgment, the issuing and return of the execution unsatisfied, and the allegation that the defendant has equitable interests to the value of one hundred dollars and more, are sufficiently shown, and are sworn to. The bill is not multifarious. A bill may be filed as well to reach mere equitable interests, as in aid of an execution at law. (Cuyler v. Moreland, 6 Paige, 274.) The right to file a creditor's bill having once attached by the return of the execution unsatisfied, the party is not prevented from commencing proceedings in chancery by the issuing of a new execution. (6 Paige, 274.) It is not now necessary to decide whether the allegations in the bill are sufficiently specific to entitle the complainant to the relief he seeks in aid of his execution. The bill, as a creditor's bill merely, is sufficient upon this question. A general demurrer for want of equity cannot be sustained, unless the court is satisfied that no discovery or proof properly called for by or founded on the allegations in the bill, can make the subject matter of the suit a proper case for equitable cognizance. (Bleeker v. Bingham, 3 Paige, 246.) Where a new cause of demurrer is assigned, ore tenus, the cause must be co- extensive with the demurrer. Demurrer overruled, and reference for the appointment of a receiver. ---------------------- (a.) See Thayer v. Lane, post, 247; Hawkins v. Clermont, 15 Mich., 511; Williams v. Hubbard, Wal. Ch., 28; Edwards v. Hulburt, Wal. Ch., 54; Burpee v. Smith, Wal. Ch., 327. (b.) The following are copies of rules 14 and 109 here referred to: 14. In bills, answers and petitions, which are to be verified by the oath of the party, the several matters stated, charged, averred, admitted or denied, shall be stated positively, or upon information or belief only, according to the fact. The oath administered to the party shall be, in substance, that he has read the bill, answer or petition, or has heard it read, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated to be on his information or belief, and, as to those matters, he believes it to be true; and the substance of the oath shall be stated in the jurat. Where a creditor, by judgment or decree, files a bill in this court against his debtor to obtain satisfaction out of the equitable interests, things in action, or other property of the latter, after the return of an execution unsatisfied, he shall state in such bill, either positively, or according to his belief, the true sum actually and equitably due on such judgment or decree, over and above all just claims of the defendant, by way of offset or otherwise. He shall also state that he knows, or has reason to believe, the defendant has equitable interests, things in action, or other property, of the value of one hundred dollars or more, exclusive of all prior claims thereon, which the complainant has been unable to discover and reach by execution on such judgment or decree. The bill shall likewise contain an allegation that the same is not exhibited by collusion with the defendant, or for the purpose of protecting the property or effects of the debtor against the claims of other creditors; but for the sole purpose of compelling payment and satisfaction of the complainant's own debt. (c.) This rule provided for the verification of bills by agent or attorney when the complainant resided out of the State. Additional Comments: CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN BY ELON FARNSWORTH, Chancellor File at: http://files.usgwarchives.net/mi/wayne/court/clark46gwl.txt This file has been created by a form at http://www.genrecords.org/mifiles/ File size: 20.3 Kb