Storms v. Ruggles , 1 Cl. Ch. 148 ( 1839 )

The Vice Chancellor.

More than five years have elapsed since the rendition of the judgment and the return of the execution, and prior to the filing of this bill, without issuing any new execution to collect the judgment at law. In the spirit of the statute authorising the filing of bills of this character, the plaintiff must first be required to do all he reasonably can, to exhaust his remedy at law, or rather to collect his debt by process of law, before he resorts to this court for aid. In this view, it has been decided that it is not sufficient ■ to issue an execution to the county where the venue was laid ; but an execution must be issued to the county where the defendants reside, and be returned unsatisfied, before the plaintiff can file a bill of this character. Child vs. Brace, 4 Paige, 309.

If this is correct, and it certainly seems to be reasonable and equitable ; in the same spirit a plaintiff should not be permitted to file a bill of this character, upon a stale demand or judgment. In this country, a man who was a bankrupt five years ago, may, owing to the mutations of property, be a rich man today ; and as the law does not favor an accumulation of costs in legal proceedings, it would seem to be right that, after a judgment has stood for a period of three years or more, the plaintiff should try again, with an execution to collect it before he incurs the costs of filing a bill in this court. I do not mean to say that there may not be exceptions to this rule; but if there is any thing in the circumstances of a particular case, after so much delay, to render it necessary to file a bill without issuing a new execution, it should be stated in the bill. In this case, no such circumstances are stated ; and in such a case, I must hold the plaintiff to the necessity of issuing a new execution before filing his bill. There are other questions made on this motion; and I am induced to think that the return of the sheriff was not sufficient to authorise the filing of this bill, as the return does not shew legally that the plaintiff’s remedy at law js exhausted. But I prefer to place my decision upon the first ground alone; and shall, for the reason that a new execution was not issued, grant an order for the dissolution of the injunction.