Payne agt. Sheldon.

the sheriff of Ontario county, and ruturned unsatisfied. If it had been alleged, that Ontario county was at the time of the recovery of such judgment and the issue of such execution, the place of residence of the judgment debtor, the complaint would have contained all the requisite allegations to entitle the complainant to maintain the action as a creditor's suit, to reach the equitable property of the judgment debtor, and to set aside any fraudulent conveyance of his property.

So far as is necessary to enable the complainant to maintain this action upon the ground, that he had exhausted his remedy at law, the demurrer is well taken.

The question remains, which is the chief point discussed upon the argument and presented for consideration upon this demurrer, is, whether a creditor at large with a judgment which is a general lien upon all his debtor's real estate, can maintain an action in equity to set aside the fraudulent conveyances of his judgment debtor which obstruct 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.

A judgment recovered in this court is a general lien upon all the debtor's real estate, situate in any county in this state wherever such judgment is docketed, and it may be docketed in any county in the state. Such judgment does not become a specific lien upon any of the real estate of the judgment debtor, until a proper execution is issued thereon to the sheriff of the county where such property is situated.

The proper execution to be issued upon every judgment recovered for a simple contract debt, is a fieri facias, as such process used to be called. Now, it is an execution against property, and every such execution (Code, sec. 289), must require the sheriff to satisfy the judgment out of the personal property of such debtor, and if sufficient personal property cannot be found, out of the real estate belonging to him on the day, when the judgment was docketed in such county, or at any time afterwards.

Payne agt. Sheldon.

It would seem in principle, that no proceedings in equity for the enforcement of any such judgment, or to remove incumbrances, in the way of its collection can be instituted, or should be entertained, until it appeared that the proper proceedings for that purpose at law had proved ineffectual.

This action was obviously commenced upon the theory, and the argument to sustain the complaint on the part of the plaintiff was directed to establish, that an action in equity may be commenced by a judgment creditor to set aside and remove fraudulent conveyances in the way of his collection of his debt, immediately upon the recovery of such judgment, and the docketing the same in the proper county, and without the issuing of any execution thereon.

In support of this view, reference was had to certain dicta to that effect by Chancellor KENT, in Brinkerhoof agt. Brown, (4 Johns., Ch., 677) and by Chancellor Walworth, in Clarkson agt. DePuyster, (3 Paige, 322), and of Chief Justice NELSON, and Senator Tracy, in McElwain agt. Willis, (9 Wend., 503 and 567), and some few other cases where the same rule is stated.

I have looked into all the cases cited to me, and others, and I do not find that this doctrine has been particularly discussed or considered in any of them, or distinctly asserted in any actual judgment rendered by the court.

The opposite view holding, that judgment creditors cannot maintain an action in such cases, without execution and in aid of an execution is held in two well considered cases, in the superior court of the city of New York, at general term. One, the case of the North American Ins. Co. agt. Graham, (5 Sandf., 197,) where the cases cited are very ably and carefully considered and reviewed by Judge CAMPBELL, late a judge of this court; and also in the case of McCulloch agt. Colby, (5 Bosw., 477,) by Judge HOFFMAN, who also very carefully reviewed all the cases in the courts on the subject, and that court reaffirmed the doctrine asserted in the former case of the American Ins. Co. agt. Graham.

Payne agt. Sheldon.

These two cases are referred to with approval at general term of this court, in the first district, in the case of Howell agt. Cooper, (37 Barb., 586). I entirely concur in the general reasoning of these cases, and think it my duty to follow them as the latest exposition of the law on this subject in this state. This view will sustain the demurrer in this action, so far as relates to the first mentioned judgment, upon which no exeution has ever been issued, but would not sustain it in respect to the judgment recovered by Moule and others agt. Sheldon, if it appeared that the execution upon that judgment had been issued to the proper county, that is to the county where the judgment debtor resided. This, I think, is indispensible. Such, I think, is the view of the court of appeals, as held in Shaw agt. Dwight, (27 N. Y., 244 and 249).

The demurrer must, therefore, be sustained, with leave to the plaintiff to amend the complaint upon the usual terms.

Wehle agt. Butler.

N. Y. SUPERIOR COURT.

LOUISA DONAI WEHLE, plaintiff and respondent, agt. HENRY L. BUTLER, JONATHAN J. BROOME and OLIVER M. CLAPP, defendants and appellants.

Interest on the value of goods at the time of the conversion, is no more in the discretion of the Jury than the value; it is as necessary a part of complete indemnity as the value itself.

In an action of trespass for wrongfully taking and carrying away plaintiff's goods and breaking up his business, the attachments under which the goods were taken, having been set aside for irregularity, they afford no shield or protection whatever for such taking to the creditors who procured them to be issued. Such protection extends only to the officer while acting under them in the discharge of his public duty.

Where all the attaching creditors actively participated in the seizure and removal of plaintiff's entire stock at one and the same time, without separating their respective proceedings, and there being no evidence from which the extent of the separate liability of any one of them could be ascertained, they must be deemed, for the purposes of the case, to have been joint tort feasors, and as such their liability is joint and several, and enforceable accordingly at plaintiff's election.

Where a portion of the attaching creditors only, were sued in this action, the bare fact of the existence and simultaneous, but fruitless levy of the attachments issued by the other creditors, cannot be made available to the defendants in this action in any aspect of the case.

All the attaching creditors having been jointly concerned in the commission of a wrong, and being jointly and severally liable therefor at plaintiff's election, they were all alike incapacitated from making a subsequent legal appropriation of plaintiff's property, either for their joint account, or for account of any one of their number, without plaintiff's assent.

If evidence of a subsequent legal appropriation to plaintiff's use was competent, it cannot be received on the trial in this action, not even in mitigation of damages, without being pleaded. (See Welle agt. Haviland, 42 How., 399.)

General Term, November, 1871.

Before BARBOUR, Ch. J., MONELL and FREEDMAN, J.J. APPEAL from judgment entered upon the verdict of a jury. The plaintiff in her complaint, alleged the following cause of action :

Wehle agt. Butler.

First. That she is and was a merchant doing business in the city of New York, and by her industry and attention had built up a lucrative and profitable business.

Second. That said defendants are copartners, doing business in the city of New York.

Third. That on or about the 8th day of December, 1869, said defendants made application to one of the justices of the Marine Court of the City of New York for attachments against the property of this plaintiff, and by means of dividing and cutting up an alleged and entire demand against this plaintiff, and by means of a false and fraudulent affidavit, induced the said justice to grant several attachments on said claims so divided and cut up, and with said attachments said defendants proceeded to the place of business of this plaintiff, and about 12 o'clock, midnight, awoke this plaintiff and demanded entrance to her store, in said city of New York, and upon gaining admission, seized and in a wasteful and reckless manner, carried away all the goods in said store, of the value of about twelve thousand dollars.

That by means of the said attachments so fraudulently obtained, said defendants, unlawfully, wilfully and maliciously took from said plaintiff her whole stock of goods, consisting of cloth, silks, dress goods, gloves, fancy goods, and such goods as are usually kept in a fancy dry goods store, in the city of New York, the property of this plaintiff, of the value of about twelve thousand dollars, and still unlawfully detained the same to the damage of this plaintiff in the further sum of five thousand dollars, and broke up and entirely destroyed the business of the plaintiff.

Fourth.-Said plaintiff further alleges and avers, that afterwards and on or about the 10th day of December, 1869, and on the return day of said attachments this plaintiff at great expense, in the employment of counsel, to wit, five hundred dollars, appeared in the said Marine Court, and made a motion that said attachments be vacated, set aside and discharged, and the same were vacated and discharged;