Opinion
02-18-1887
NEWMAN v. VAN DUYNE and another.
J. S. Salmon, for demurrant.
Creditors' bill. On general demurrer.
J. S. Salmon, for demurrant.
RUNYON, Ch. Two grounds of demurrer are assigned. One is that the complainant's judgment, which is a judgment of the court for the trial of small causes docketed in the court of common pleas, is not valid because of the insufficiency, for the purpose of docketing, of the return of the constable upon the execution issued out of the justice's court. The other is that the conveyance, the validity of which is attacked, was made before the complairiant began his suit at law. The return of the constable is as follows: "Montville, April 12, 1886. I return the within execution unsatisfied; found no goods and chattels on which to levy." This return is sufficient. Poineerv. Bagnail, 7 Atl. Rep. 858, (decided at the November term, 1886, of the court of errors and appeals.) In that case the return was: "I return the within execution this twenty-fifth day of September, 1872, unsatisfied; no goods or chattels found within my county belonging to the defendant to make any part of the debt and costs on this execution, except that which is exempt by law." The court, in disapproving the case of Matthews v. Miller, 47 N. J. Law, 414, 1 Atl. Itep. 464, draws a distinction between cases where, as in Tasto v. Klopping, 43 N. J. Law, 448, and Preichnecht v. Meyer, 39 N. J. Eq. 557, the return indicated that there were some unexempted goods found whereon to levy, and on which no levy was made, and cases where it appears by the return that no goods were found.
As to the other objection. The bill alleges that the judgment debtor fraudulently conveyed the property which the complainant seeks to reach to his son, in 1880, for his (the grantor's) own use and benefit, and to protect it from the claim of the complainant, or those of others of his creditors. It may be added that it does not appear when the complainant's debt was contracted,—whether before or after the conveyance. But, if the conveyance was made in trust for the debtor, it makes no difference whether the debt was contracted before or after the making of the conveyance.
The demurrer will be overruled.