The allegation in the bill that the defendants reside in the county of Dutchess, applies to the time of filing the bill. It is not an allegation that they resided in that county when the execution was issued.
The defendants insist, that the bill, by reason of this omission fails to show that the complainant has exhausted his remedy at law: That it is not sufficient to set forth a judgment in the Dutchess Common Pleas, and an execution to that county, unless it appears that the defendants resided in Dutchess county; or that for some reason, the issuing of an execution to the county where they did reside, would have been fruitless.
On the other hand, the complainant relies on the "case of Leggett v. Hopkins, (7 Paige, 149,) where the chancellor decided in 1838, that on a judgment in the New York Superior Court, a creditor’s bill might be filed after the return of an execution issued to the county of New York unsatisfied, without regard to the place of the debtor’s residence.
*599The ground of that decision was, that as no execution could be issued on such a judgment to any other county, the creditor had done all he could to enforce his legal remedy.
In Reed v. Wheaton, (7 Paige, 663,) the chancellor held, that where the creditor’s bill was founded upon a judgment in the supreme court or a decree in chancery, so that an execution on the same might issue to any county, the bill must show affirmatively, that the complainant has exhausted his remedy, by issuing an execution to the county in which the debtor resided ; or it must state some good legal excuse for issuing it elsewhere, as the non-residence of the debtor, or the like. And The Merchants and Mechanic’s Bank v. Griffith, (10 Paige, 519,) is to the same effect.
Since the act of 1840 went into operation, the plaintiff on recovering a judgment in the common pleas, may issue an execution into any county in the state, on docketing in the clerk’s office of such county, a transcript of his judgment.
As a general proposition, a man’s personal property is presumed to be at the place of his residence. Hence the necessity of showing in these creditor’s suits, the return of an execution issued to the county where the defendant resided. The same principle which in the instance of judgments in the supreme court, or decrees in chancery, required that the execution should go to the county of the defendant’s residence, is now applicable to judgments of the common pleas and superior court. There is no longer any obstacle in the way of sending executions on the' latter, to any county in the state.
If the act of 1840 had simply enacted, that an execution might be issued from the court of common pleas to any county in the state, no one would have questioned the necessity of sending an execution to the county where the defendants reside, in order to exhaust the remedy at law. The provision that the judgment must be first docketed in a foreign county, before sending an execution there, imposes an additional formality, without affecting the principle involved.
I think therefore that the bill in this case does not show the complainant’s remedy at law to have been exhausted, so as to entitle him to maintain his suit in this court.
*600This view is sustained by the chancellor’s decision in Coe v. Whitlock, (May 7, 1844, 4 Barbour’s Decisions of Ch. 19.) He there held, in a bill founded partly upon a judgment for $33, recovered before a justice, that it was not sufficient to set forth the return of an execution issued by the justice, which goes against personal property only. That the bill ought to state the filing of a transcript of the judgment in the county clerk’s office and the issuing and return of an execution thereon against the debtor's land also.
If the justice’s judgment had been less than $25, then inasmuch as it could not be docketed against land, the authority of Leggett v. Hopkins, would have applied, and the justice’s execution would have sufficed.
To the same effect in principle, is the chancellor’s judgment in Corey v. Cornelius, (May 25, 1846; 6 Barbour’s Decisions 22, and 4 N. Y. Legal Observer, 258.)
The docketing of a judgment in the supreme court, is not necessary except to create a priority of lien, and land may be sold on an execution out of that court, without such docketing.
' So.on a judgment of the common pleas or superior court, an execution to the county in which it is recovered may be issued, and land sold upon the same rvithout docketing the judgment. In each case the execution must of course direct the sheriff to levy on real estate.
On this point, the demurrers to the bill are well taken; but as the omission is evidently a mere slip in framing the bill, the complainant must have leave to amend on payment of costs, and without prejudice to his injunction. And the defendants costs when taxed, are to be set off against the complainant’s judgment, which is admitted to be due by the demurrers. The court may direct this in its discretion, although the costs are due to the defendants severally and not jointly.
Demurrers allowed, with costs. Leave to amend the bill without prejudice to the injunction.