Lewis v. Lanphere

Citations

• 79 Ill. 187

Syllabus

<p>1. Amendment of bill in chancery. Courts of chancery have never required an affidavit showing grounds for filing an amended bill, but, on the contrary, it is always allowed when the chancellor can see that the complainant, by his evidence, has made a case requiring relief, but is variant from the bill.</p> <p>2. When an amended bill is filed, it is not an abandonment of the original bill, and the complainant is not precluded from proving allegations in the original and not in the amended bill, nor is he restricted to the praj-er of the latter.</p> <p>3. Chancery practice—continuance on amendment of Mil. In such a case, if the defendant has evidence to meet the case made by the complainant under his amended bill, and it is beyond his reach, and he has 'been guiltj- of no want of diligence, the chancellor, on a proper showing, should either continue the case or extend the time to procure the evidence.</p> <p>4. Creditor’s bill—to subject to an execution at law. Where a party files a bill to set aside a fraudulent convej-ance of real estate, or to subject the same to the payment of an execution, it is true, he must shotv that he has exhausted his remedy at law. but this is done by showing that an execution has been issued and placed in the hands of an officer, and that the officer made a demand of the debtor for property or money to satisfy it, and that the debtor stated that he had neither, and thereupon the officer returned the execution nulla bona.</p> <p>o. A judgment debtor fraudulently convej-ed land to his son, to hinder and delay his creditors, and took a deed from his son reconveying the land to him, but did not put the last named deed on record. The judgment creditor, after levying his execution on the land, filed a bill in chaneen-, setting forth the facts, and asking that the land be subjected to sale to satisfy the execution: Held, that the facts brought the case within the jurisdiction of a court of equity, and that the complainant was entitled to the