(IN EQUITY.)
R. being a creditor of D. by bond, files his bill against D. M., charging that D. had fraudulently conveyed property to M. sufficient to pay his debt, and praying a discovery, account and satisfaction. Bill dismissed upon hearing, because R. had not reduced his debt to a judgment, and actually issued execution.
Both defendants answered, and denied the fraud; and the cause, being set down for hearing after testimony taken, was transferred to this Court for trial.
Upon the hearing, it was now, by Mordecai, for the defendants, objected that complainants could get no relief upon this bill, as it appeared that they were creditors of Davis by bond only. Before they can come here, even for discovery, they must reduce their debt to a judgment and take out execution, so that it may appear, in that way, that the debt is just and that satisfaction cannot be otherwise had from Davis. And to that effect he cited the cases of Angel v. Draper, 1 Vern., 399; Sherly v. Watts, 3 Atk., 200, and Hendricks v. Robinson, 2 John Ch. Rep., 296.
And for these reasons, PER CURIAM, the bill was dismissed, with costs, but without prejudice to complainants bringing another suit.
MURPHEY, J., sat for HENDERSON, J., in this case.
Cited: Hines v. Spruill, 22 N.C. 100; Brown v. Long, 36 N.C. 192, 3; Peeples v. Tatum, ib., 415; Wheeler v. Taylor, 41 N.C. 227; Bridges v. Moye, 45 N.C. 173; Brittain v. Quiett, 54 N.C. 330.