2 Del.Ch. 17 (Del.Ch. 1836), Cochran v. Cochran

Citation:2 Del.Ch. 17
Opinion Judge:Johns Jr., Chancellor.-
Party Name:Eliza E. Cochran, by her Trustee, Arnold Naudain, v. Richard E. Cochran, Albert G. Lewis, Jefferson Lewis and Phocion Lewis.
Attorney:R. H. Bayard, for the complainant. J. Wales, for the defendants.
Court:Court of Chancery of Delaware
 
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Page 17

2 Del.Ch. 17 (Del.Ch. 1836)

Eliza E. Cochran, by her Trustee, Arnold Naudain,

v.

Richard E. Cochran, Albert G. Lewis, Jefferson Lewis and Phocion Lewis.

Court of Chancery of Delaware.

February Term, 1836

It is no ground for relief in equity that the debtor in a judgment is deceased and that there is no personal representative of his estate. The creditor has sufficient remedy at law by raising an administration.

This was a bill in equity for the collection of a balance due upon a judgment, in the alleged absence of a remedy at law. The judgment was for the sum of $2367.58, recovered May 15th, 1809, in the Superior Court for New Castle County, at suit of James Couper Jr., guardian of Eliza Evans v. Thomas Boulden, administrator c. t. a. of Philip Lewis, deceased. Eliza Evans afterward intermarried with Richard E. Cochran, to whom, after the marriage, July 20th 1812, the judgment was assigned by the guardian, there being then due a balance of $847.70. Afterward, October 15th, 1824, Richard E. Cochran assigned the same judgment to Arnold Naudain, in trust for the separate use of his wife, Eliza E. Cochran. Thomas Boulden, administrator c. t. a. of Philip Lewis, deceased, the defendant in the judgment, was now dead, and no administrator de bonis non had been appointed. The bill was filed in order to recover payment out of the real estate of Philip Lewis deceased,-the defendants, Albert Gallatin Lewis, Jefferson Lewis and Phocion Lewis, being his heirs at law and next of kin.

The answer set up as a defence the staleness of the demand, and alleged sundry circumstances raising a strong presumption that the judgment had been paid, or in some way discharged. But the defence mainly relied on at the hearing was that no process had been taken at law to collect the debt out of the personal estate of defendant in the judgment, Philip Lewis deceased.

The cause came before the Chancellor, at the February T. 1836, for a hearing upon the bill, answers, exhibits and depositions.

R. H. Bayard, for the complainant.

This is a chose in action belonging to the wife and is the subject of a trust. That is sufficient to bring the case within the jurisdiction of this Court. But additionally, the complainant is without a remedy at law, there being no personal representative of the debtor in the judgment.

J. Wales, for the defendants.

The complainant is not...

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