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PRACTICE REPORTS

IN THE

SUPREME COURT

AND

COURT OF APPEALS,

OF THE

STATE OF NEW YORK.

BY NATHAN HOWARD, JR.,
COUNSELLOR-AT-LAW, NEW YORK.

VOLUME XLIII.

ALBANY:

WILLIAM GOULD & SONS,

LAW BOOKSELLERS AND PUBLISHERS.

1872.

Entered according to act of Congress, in the year eighteen hundred and seventy-two

BY WILLIAM GOULD & SONS,

In the Office of the Librarian of Congress at Washington.

Rec. Dec. 3, 1873

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PRACTICE REPORTS.

SUPREME COURT.

ALLEN PAYNE, who prosecutes in his own behalf and that: of all other judgment creditors of WILLIAM P. SHELDON, who choose to join with him, agt. WILLIAM P. SHELDON,, impleaded with others.

A creditor at large, with a judgment which is a general lien upon all his debtors real estate, cannot maintain an action in equity to set aside the fraudulent conveyances of his judgment debtor, which obstructs the collection of his judgment: out of such real estate, without the issuing of an execution and ascertaining that it cannot be collected of the personal property of his debtor. (The authorities upon this question examined and considered). Where an execution has been duly issued by a judgment creditor to the sheriff of a county, and by him returned unsatisfied, a complaint by the judgment creditor, in equity, to reach the property of the judgment debtor is defective, if it does not allege that the execution was issued to the sheriff of the county where the judgment debtor resided at the time of its issue and of the recovery of the judgment.

Monroe Special Term, December, 1871.
DEMURRER to plaintiff's complaint.

E. W. GARDNER, for defendant.
E. G. LAPHAM, for plaintiff.

E. DARWIN SMITH, J.-The complaint in this action sets out two judgments recovered against the defendant, William P. Sheldon. Upon the judgment first described, no execution appears to have been issued. Upon the judgment secondly described, it appears that an execution was duly issued to

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