The complaint in this case is the ordinary creditor’s bill, designed to reach property alleged to be in the hands of the co-defendant, Fremont, for the purpose of applying it to the satisfaction of two judgments held by the plaintiff. These judgments were recovered against the defendant, John T. Howard, and his brother, Joseph Howard, on joint contracts. Joseph Howard is alleged to have been deceased at the time this suit was commenced, but there is no other allegation, nor any proof in the case, as to the time of his death. There is no allegation or proof as to his residence when the executions were issued, nor in respect to his condition as to property; and for any thing that is made to appear, he may have been living when the executions were issued and returned, and have possessed personal property at his place of residence, sufficient to satisfy the executions, or real estate, on which the judgments were liens, adequate to their full satisfaction. The only allegations in the complaint touching the executions are, that they were issued to the sheriff of the city and county of Hew York, where John T.
These being the only facts appearing upon the trial, the referee held and decided that the legal remedy of the plaintiff to obtain satisfaction' of the judgments had not been exhausted; and, therefore, the plaintiff had not shown himself entitled to the remedy demanded in the complaint, and he rendered judgment dismissing the complaint, with costs, which judgment, on appeal to the General Term, was affirmed.
The remedy sought by a creditor’s bill, was one well known to the courts of equity before it had been recognized, and to some extent regulated by the Eevised Statutes. It was always necessary under both systems, that the bill should show affirmatively that an honest attempt had been made to collect the debt by the issuing and return of an execution against the judgment debtor, and where there were several defendants jointly liable thereon, that such effort had been made, and such remedy exhausted against all the judgment debtors, before jurisdiction would be entertained in chancery. The authorities are full and uniform to this effect. It is sufficient to cite Child v. Bruce (4 Paige, 309); Reed, v. Wheaton (7 id. 663).
This requirement has not been in any respect changed or modified by the practice as it now exists under the Code. It is still just as necessary as it ever was to exhaust the legal remedy before equitable relief can be sought. Such relief is based on the same principles, notwithstanding it may be sought and obtained under a system in which the two jurisdictions are combined in the same tribunal. That tribunal extends equitable relief upon equitable principles, and the party who invokes its aid in this form must comply with the rules it has established.
Since the enactment of the Code the decisions have been to the same effect, and have maintained the same principles as had before been established. This was so held in Crippen v. Hudson (13 N. Y. 161), where the court say, that the union of legal and equitable jurisdictions in the same court does not furnish any good reason for a departure from the well estah
The plaintiff here has neither averred nor proved that his remedy at law had been exhausted upon these judgments. Although the averment, that Joseph Howard died at some time before the present suit was commenced, was a sufficient reason for not making him a defendant in the action, it did not relieve the plaintiff from the obligation of averring and proving that, as against all the defendants, the remedy at law had been exhausted. As to Mills, a third defendant in one of the judgments, there is an averment of his utter insolvency as an excuse for his omission as a defendant, and also for not seeking any remedy against him by the issuing and return of an execution; but there is no such averment in relation to Joseph Howard.
The judgment was, therefore, right, and must be affirmed.
Judgment affirmed.