3 Edw. Ch. 445
Decided January 5, 1841
New York Court of Chancery · decided 1841-01-05
Judgment creditor’s bill. Demurrer interposed on ground that the bill did not show the defendant resided in county of Kings at the time the execution was taken out. the the The bill, after the averment of the issue of a fi. fa. out of the Supreme Court, added: “ that being the same county in which the defendant resides.” Defendant, in pro. per. referred to Reed v. Wheaton, 7 Paige, 663 ; and MS. case before the Chancellor of Gaylord v. Hendrickson.
Decided 1841-01-05
¶1The cases cited settle the point conclusively, that it is not sufficient to aver, as in this instance, a residence at the time of swearing to the bill. It must show affirmatively that the defendant resided in the county to which thefi.fa. issued (out of the Supreme Court) at the time it was so issued.
¶2Demurrer allowed, with costs; but let the complainant have leave to amend the bill on payment of costs.