The Chancellor.
The law is too well settled to be now disturbed, that a judgment creditor, who comes into this Court for relief, must show he has in good faith exhausted his remedy at law. This is usually done by showing an execution, directed to the county where the debtor resides, returned unsatisfied in whole or in part. A man is supposed to have his property about him, and the means in his possession to pay a judgment obtained against him, when called on by the officer. This is the reason of the rule requiring the execution to be sent to the county in which the debtor resides. But it may turn out that he has neither the money to pay the judgment, nor property, in the county in which he resides, to be levied upon, and yet has, in another county, abundant property to pay the debt. Such is the case before me, with this additional fact, that the defendants informed the complainant they were the owners of real estate sufficient to pay the judgment, in Saginaw and Lapeer counties, and offered to turn it out to be levied on and sold, if the complainant would send an alias execution into either of those counties. This is the substance of the plea. It cannot be said, under such circumstances, that the complainant has, in good faith, exhausted his remedy at law. He should have had his execution returned, and taken out an alias, directed to the sheriff of the proper county. It was not necessary to wait until the return day of the execution. It might, for that purpose, have been returned in vacation. Laws 1839, p. 23, § 6.
Plea allowed.